|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Australia Transcripts |
Sydney No S9 of 2001
B e t w e e n -
REGIE NATIONAL des USINES RENAULT SA and RENAULT AUTOMOBILES SA
Appellants
and
FUZU ZHANG
Respondent
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 8 AUGUST 2001 AT 10.17 AM
Copyright in the High Court of Australia
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, DR A.S. BELL and MR R.D. GLASSON for the appellants. (instructed by Connery & Partners)
MR R.F. MARGO, SC: May it please the Court, I appear with my learned friend, MS S.E. PRITCHARD, for the respondent. (instructed by T. D. Kelly & Co)
GLEESON CJ: Yes, Mr Walker.
MR WALKER: What happened relevantly was this: at the first instance hearing of the stay application, Justice Smart went to the trouble to ascertain what substantive law his Honour considered was likely to govern the obligations and rights inter se of these parties concerning the accident in New Caledonia.
McHUGH J: What is the content of the French law, do we know that?
MR WALKER: Yes, that proved by the affidavit of Marie-Christine Roger, which your Honours will find in volume 1 of the appeal book at page 37.
McHUGH J: It is pretty brief though, is it not?
MR WALKER: Paragraph 6; it is admirably concise, your Honour:
articles 1382, 1383, 1384 which enable an action for damages to be taken against the manufacturer of a product by a person injured by the product. In such an action, it is necessary to prove negligence or a design defect on the part of the manufacturer.
GUMMOW J: But do we have any copy of the articles in translation?
MR WALKER: We do not, your Honour. I am told by my learned friend that if your Honours wish to see that text it can be made available now.
McHUGH J: Well, it is a question of fact, is it not? Can we look at facts on an appeal? Were they before anybody?
MR WALKER: No, that was the evidence before the trial judge in an application of a kind which, ironically, for these present proceedings, was described by this Court as requiring the hearing to be measured in minutes rather than hours so far as counsel was concerned, by contrast with, I think, the English generosity of hours rather than days. I fear this case fitted an older English model so far as the actual conduct of the proceedings was concerned. But in answer to your Honour Justice McHugh, that is the evidence which provided the material upon which the court below acted as to the content of the law of France. There is other material from the same witness concerning questions of procedural law as well, which was referred to by the learned trial judge.
GLEESON CJ: What is the material difference, if any, between the law of France and the law of New South Wales relevant to this case, as you understand it?
MR WALKER: So far as the description of the liability-causing event or condition, there is no difference to be perceived between paragraph 6 and an equally concise or brief explanation of the law which would obtain in New South Wales, though, of course, descriptions that brief will always leave out relevant exceptions and would always leave out questions of statute law, which in questions of design and manufacture are likely to play some role, were the matter to be an entirely domestic tort.
HAYNE J: Are you able to say, on the evidence as it now stands, whether or not there is any difference between French law and the law of New South Wales?
MR WALKER: As to nuances, no, I cannot say where the nuances would tend. All I can say is that it is in the nature of things that a law written in French, contained in a code as opposed to a case law system, will produce, from time to time, differences which cannot be predicted in the abstract or in advance of a final determination.
GUMMOW J: This is unusual, in a way, in that the plaintiff has actually pleaded reliance, in the alternative, upon French law, paragraph 16 on page 5.
MR WALKER: Yes.
GUMMOW J: Now, we do not have any defence to that yet, but so far as the plaintiffs' case is the result and the law is the same.
MR WALKER: Yes, your Honour.
GAUDRON J: What about the failure to warn? Is that a relevant difference?
MR WALKER: No one at this stage would be able to tell precisely what differences the different regimes concerning warning would produce, your Honour. That is one of the difficulties of applying anything in the nature of presumption. There is no room for presumption now that there is some evidence, as to the similarity of law, and it is one of the difficulties of seeking, on an application which is meant to be relatively summary, to work out in anticipation precisely where facts not yet fully proved, applied are considered under law not yet fully adumbrated, whether that will produce differences.
What one can say is that a system of law, namely the French system of law, which regulates matters of care concerning warning as well as design and manufacture is a system which is self-contained, that is, it proceeds by its own methods according to its own texts to produce results dictated by them and there is nothing in the evidence which would permit either by a presumption or by a positive finding the conclusion in this case that every case which can be summarised as an allegation of negligent design, manufacture or failure to warn will produce precisely the same nuance depreciation of matters such as responsibility for one's own wrong and the like.
HAYNE J: On the evidence and pleadings as they presently stand, if it were the fact that French law provided strict liability for a manufacturer producing a vehicle with what is described as a design defect, would it be open to the plaintiff, as things now stand, to mount such a case?
MR WALKER: Under paragraph 16, I think the proper answer, your Honour, is that under our pleading rules, so that if it were in the New South Wales forum, it is likely that subject only to problems of limitations - which may not apply at all, of course - - -
McHUGH J: Did you not have to give an undertaking as to limitations?
MR WALKER: Yes. Subject only to such matters, then one would imagine the usual approach to amendments would enable some elaboration of 16 in a way which would give content to that which is presently entirely general and, furthermore, entirely abstract.
HAYNE J: Would that be in any way inconsistent with paragraph 6 of the affidavit to which you took us? It seems to me not, but - - -
MR WALKER: We do not know. There is nothing on the face of things, I confess, your Honour, that would enable me to do other than speculate.
HAYNE J: Yes.
MR WALKER: I stress this is on the face of the record which is before this Court.
HAYNE J: Yes, but that itself may be - it may not be but it may be a matter of significance that one cannot say on what we now know.
MR WALKER: Yes, I would wish, however, to expand beyond the position of the particular proceedings in a further answer to your Honour. It is of the nature of such applications as this Court, I was about to say suggested, but, with respect, commanded in Voth v Manildra that they ought to be seen as applications which do not fight in advance the case. The pilot tunnel should not be as big as the tunnel, and so it will be impossible to have either the full suite of facts or, bearing in mind the strictures about argument, the full suite of argument and, in particular, it will not be possible to apply to the particular case before the Court what have been called the nuances of the other substantive law, particularly as it is worked out by the mode of trial, both pre-trial preparation, trial determination and adjudication methods which will be different. We know they are different from the evidence that was before Justice Smart.
It is for that reason that the inability to predict, on what might be called a probabilistic basis, the existence, nature and extent of what I will call outcome differences. Be they liability, remedy or quantum of remedy, those are not objections to the use by an application judge of the fact of a foreign law being the substantive law as a highly significant factor in considering a stay. The reason is that that uncertainty invokes and ought to provoke deference by the application court to the hypothetical foreign court, that one cannot know in advance and will never know as well as they what differences may be produced and in - - -
HAYNE J: Is that a proposition that comes to the proposition the only significance to be attached to a conclusion that a foreign law is the law of the cause is that that is a connecting factor? In particular, you may not go from the proposition that the law of the cause is a foreign law to any conclusion about what consequence that may have about ease or difficulty of proof of foreign law or consequences for the action once proved.
MR WALKER: I am sorry, did your Honour say proof "of" or "under"?
HAYNE J: Proof of foreign law or consequences once proved.
MR WALKER: Yes. The answer to your Honour is that it is in the nature of this kind of application that, subject to what the first condition in Phillips v Eyre may mean, if anything, similarity between the putative foreign law and the Australian or New South Wales law, may or may not be necessary in order for the foreign law to be considered as the governing law in any event. This becomes a circularity, a self-defeating circularity, as we wish to elaborate later on. But putting that to one side, and that is a large step in argument because the law seems to say at the moment, on some readings of it, that you do that first, but if you put that kind of similarity to one side, one starts with the proposition that every system of law, whether they are based at what might be called universal or international broad norms, such as the careless should compensate the victims of their carelessness, that they are still self-contained systems which come together with procedural machinery which are no mere matters of stationery and which may include modes of proof.
Your Honour then asks, "What does that say about the mode of proof of the foreign law?". In terms, it does not say anything about that. That is a matter for our forum adjectival law. In terms of what is then proved and what does one do as a matter of consequence, to use your Honour Justice Hayne's words, what does one do about the consequence there, one starts, if one is the application court, by deferring to the, not possibility, but certainty, that it is the foreign court which is familiar with and fluent in how its procedures produce outcomes under its substantive law, and one regards that, never as determinative, but always as significant, a matter that needs to be considered, at the very least.
MR WALKER: Ironically, bearing in mind that it is the so-called rule in Phillips v Eyre and the first condition thereof, that seems to excite most intellectual heat in the substantive area we wish to argue. Ironically, if one were to demonstrate that there was a major discrepancy or difference between the foreign law of the place where the wrong was committed, and the forum law covering wrongs of a similar kinds had they been committed in the forum, then depending upon the nature of that discrepancy one might find that the very matter which, in our submission, is a matter of principle going back a long time, should attract from the application court great deference to the foreign court and the foreign legal system, that very factor would destroy it all together and render it, in Mr Justice Clarke's words, adopted by Justice Stein in this case, an irrelevancy.
So, in our submission, what can be seen at the outset is that there are difficulties, while so ever there is a first condition in a so-called rule in Phillips v Eyre about perceiving at the stage of an interlocutory application for a stay that there is a degree of similarity or the possibility of some unknown dissimilarity, or even just nuanced difference between the forum law governing domestic events of the kind which have occurred internationally or overseas.
GUMMOW J: You seek to restore, if we can get down to tintacks Mr Walker, Justice Smart's decision, do you not?
MR WALKER: Yes.
GUMMOW J: He says at page 213 that this was an application under Part 11 rule 8. Can we be confident that the rules mentioned there are the rules in the form they were at the time we considered them recently in the Football Case, Agar v Hyde? If not, somebody had better check it.
MR WALKER: Yes, they are the same, your Honour.
GUMMOW J: Well, let it be checked, I do not want to have to do it myself.
MR WALKER: No, your Honour.
GUMMOW J: Now, the application was put on two bases, was it not?
MR WALKER: Yes, your Honour.
GUMMOW J: The first went to the attraction of jurisdiction in the first place.
MR WALKER: Yes.
GUMMOW J: What was the alleged attraction of jurisdiction?
MR WALKER: The suffering of damage in the jurisdiction.
GUMMOW J: Yes, I see, and that has not been pursued any further, has it? That particular attack, namely, nothing to serve?
MR WALKER: No, that the plaintiff continues to suffer damage in New South Wales is palpable.
GUMMOW J: So, we can put that to one side?
MR WALKER: Yes.
GUMMOW J: So, it was just - - -
MR WALKER: Your Honour asked me about jurisdiction, and I am in danger of concentrating, in answer to your Honour's concerns raised with me at the outset, on what I will call the "negligence claims", be they manufacture or warning.
GUMMOW J: Yes.
MR WALKER: Your Honours will not forget that there was a claim I cannot explain in quasi-contract where the jurisdictional objection having been made was conceded. Now, I think, in the event of success in this Court, as your Honours will have seen from my learned friend's written submissions, something is asked for by my learned friends about the quasi-contract claim. But I need to utter that as a qualification when I talk about "jurisdiction", your Honours.
GUMMOW J: Yes, thank you. Now, what was the reasoning that led Justice Smart to decide in your favour?
MR WALKER: Does your Honour mean overall or does your Honour mean on the choice of law matter?
GUMMOW J: On the choice of - well, why was there a choice of law matter in the first place?
MR WALKER: There was a choice of law matter because - - -
GUMMOW J: I mean, if this is a contract claim, why would there be all this fuss? There are plenty of foreign governing law cases. People do not rush along and say it is an inconvenient forum because of that.
MR WALKER: If it were a contract claim, there would not have been a problem in choice of law had the contract been made presumably in the French language of an English translation in Noumea. Whether that would have then led to - - -
GUMMOW J: Or made in Sydney before he left with the French-Noumean law.
MR WALKER: That may or may not make a difference and we are now piling hypothesis on hypothesis because there would be choice of law questions - express choice of law clauses to be considered if there were any. There might even be forum clauses to be considered. So, contract does not provide an interesting point of departure in order to examine - - -
GUMMOW J: I am just trying to work out why you won Justice Smart - - -
MR WALKER: Maybe it was because I was not there, your Honour.
GUMMOW J: - - - and what the crucial passage is that you would have us endorse.
MR WALKER: The first thing is that our attack, of course, is based upon the Court of Appeal having set to one side what was described in the Court of Appeal and not by way of derogation but by way of description and perhaps commendation of Justice Smart, namely, that it was a finely balanced judgment. That is accepted. There were connecting factors which were very strongly outside New South Wales. There were, of course, connecting factors in New South Wales. The plaintiff lived there. But if your Honour asks can we or should we seek to defend the outcome of the very careful voluminous discretionary considerations which go to and fro, one can follow the, as it were, mental narrative in Justice Smart's judgment where there is a ledger and matters are put on either side, and very careful, indeed, one could say it goes so far as to say very anxious consideration is given to a number of matters weighing on both sides.
KIRBY J: Can I ask you, does this finely balanced judgment or discretion, is that compatible with the idea of being a clearly inappropriate forum, because you were seeking the relief - you were seeking the stay and you had to prove what is quite a high run to leap.
MR WALKER: At the end of the day, that raises the question whether where a stay application is arguable and is stoutly argued on both sides and where there are arguments raised which need to be considered on both sides, whether by dint of that the respondent to the motion has prevented ever a clearly inappropriate finding emerging. Your Honours would reject that. It is in the nature of things that wherever the goalposts are, there were people who can get balls close to it. So, in our respectful submission, the fact that it was closely contested does not mean that it could not be a clearly inappropriate conclusion, that is, a conclusion of clearly inappropriate. The next thing is that as the judge - - -
McHUGH J: But did the learned judge at first instance ever ask himself the right question?
MR WALKER: Yes, and the Court of Appeal thought he did, too. That argument was levelled against him very plainly in the Court of Appeal and was rejected.
McHUGH J: I know that, but when you read the content of the judgment, it is very difficult to think that the judge was really looking at the case in terms of whether it was a clearly inappropriate forum. I mean, that really requires you to look at the deficiencies of trying the action in the forum. Apart from the words in the opening part of his judgment, he does not use the word "clearly", for a start. I do not think he mentions it again, does he?
MR WALKER: I think he does, but that verbal point was considered closely by the Court of Appeal and rejected as an attack upon his judgment.
KIRBY J: You say "considered closely". It was mentioned in passing and rejected as an important point. Justice Stein's - - -
MR WALKER: It was argued with vigour below - - -
KIRBY J: I am sure it was.
MR WALKER: In answer to your Honour Justice McHugh, furthermore - - -
GUMMOW J: Does not paragraph 226 bear out what Justice McHugh has been saying to you?
MR WALKER: Page 226, your Honour?
GUMMOW J: Yes, page 226, the paragraph beginning at line 35, namely, comparison.
MR WALKER: Yes. That is a sentence which is on its face and in substance a matter of comparison. It says "much closer connection". However, could I take your Honour back to one which starts off perhaps differently, on page 222 of the appeal book, just above line 25:
This case has a close connection with France and New Caledonia. The design and manufacture of the sedan took place in France. If it were not for the accident in New Caledonia and the injuries suffered there by the plaintiff this claim would not arise. The New South Wales connection is of a different order.
Now, there is a comparison, but the beginning of the comparison is in, in our respectful submission, entirely the same intellectual mode of approach as is found in this Court's reasoning in Voth v Manildra. One could not, in Voth v Manildra, have proceeded very far into the stay issues without contemplating, one, Missouri, two, New South Wales, and one could not, with respect, consider the discretionary matter which comes after the finding of clearly inappropriate - and it does come and it is discretionary and it was the finely balanced matter that the Court of Appeal recognised in this case, the final matter - one cannot do that without mentally, and preferably explicitly in writing, recognising those things on either side of the ledger. It is not possible, in our submission, to carry out a clearly inappropriate exercise without recognising more than one jurisdiction during the course of that.
McHUGH J: Why?
MR WALKER: Because one reason something can be clearly inappropriate is that a New South Wales court will be asked to apply a law which is not that of New South Wales.
GUMMOW J: But that happens every day of the week.
MR WALKER: Yes, your Honour. I have to take it one step at a time and the first step is: can there be language of, I will call it comparison, or, as we would prefer to put it, is it proper that this issue is approached and adjudicated bearing in mind not some abstract, unknown putative other, but the actual other, the law of the place where the accident did happen? And the answer is, no, of course one cannot, because there would be the world of difference, for example, in asking whether it is clearly inappropriate for New South Wales to be applying the statute law of Victoria compared with whether it is clearly inappropriate for New South Wales to be applying the code law of Guatemala.
HAYNE J: In a sentence, what is it that made New South Wales inappropriate?
MR WALKER: The application of the substantive law of France by modes of trial which are not part of the law of France and are quite different from it.
HAYNE J: So the bare facts of foreign law being enforced in an Australian court, is that it? That is a very large proposition.
MR WALKER: No, no, it is not the bare facts, but we will not shrink from saying that is the principal proposition. It is far from bare. The facts in question - - -
HAYNE J: You are about to dress it, are you, Mr Walker?
MR WALKER: I am going to try to, your Honour, whether I end up as Lady Godiva is another thing, but the facts in question to which that law is to be applied by a court system which is not the creature of the same law makers, that law is to be applied to facts which occurred outside New South Wales in relation to an industry not regulated by the Parliament of New South Wales and in relation to a design and manufacture process occurring on the other side of the world.
McHUGH J: This is part of your problem, is it not? You abandon reliance on France. In the terms of this case, the connection with New Caledonia is almost incidental, that is where the accident happened, but this is an action about the design of the vehicle.
MR WALKER: Your Honour, it is not a matter of connection with what I will call "physical earth" that is the fact, bare or not. It is the fact that the New South Wales court will be asked to apply substantive law, if we be correct about Phillips v Eyre. If we not be correct about Phillips v Eyre, then - - -
GUMMOW J: You will have to explain to us how Phillips v Eyre gets into the equation.
MR WALKER: Can I come to that in a moment?
GUMMOW J: Yes.
MR WALKER: In answer to your Honour Justice McHugh, New Caledonia happened to be and happens to be a territory in which French law governed what occurred at the time of the accident, governed and will govern how courts are administered and the French law administered and adjudicated. The connection of New Caledonia with respect to the occurrence of a vehicle overturning, in our submission, is no mere accident. It is the place where it happened and how it happened - - -
McHUGH J: Yes, but this is a case about the design of the vehicle and - - -
MR WALKER: It is not only about that, your Honour.
McHUGH J: - - - you want to put the content of the law right up the front but, really, it is right at the back. This is a case about facts, having regard to the terms of what appears at page 37. It is a question of breach - negligence - and that is going to be determined, apparently, by American experts.
MR WALKER: No, it will not, your Honour.
McHUGH J: United States standards.
MR WALKER: One could call experts from any country to talk about the adequacy or otherwise of the American standard. The fact that it is an American standard is entirely adventitious. It could be a Canadian standard, could be a Japanese standard. It does not matter where the standard comes from, the standard is a printed document. What matters was there was a design decision, an engineering trade-off exercise of a kind with which all courts are familiar, not only common law courts, in France.
McHUGH J: Of course, but why is it clearly inappropriate for a New South Wales court to decide that question of fact?
MR WALKER: It is never inappropriate for a New South Wales court to be seized of a fact-finding exercise, in itself. That could never suffice. The next thing is, what are the kind of factors which can make a New South Wales court's examination of facts inappropriate or clearly inappropriate? One of them will be language, that is, the language of the transactions or dealings in question. Something is lost in the translation. Another will be, where are the people, where are the things, and where are the places which are relevant in a section 55 Evidence Act 1898 sense, to the fact finding to be carried out by the New South Wales court?
McHUGH J: Well, there was a time, and it was not very long ago, when probably 25 or 30 per cent of the actions tried at common law in New South Wales had interpreters giving evidence.
MR WALKER: That, your Honour, had nothing to do with an inappropriateness of the court dealing with that matter.
McHUGH J: No, but - - -
GLEESON CJ: Mr Walker, on page 223 at line 20, his Honour, referring to "design and manufacture" and "design and manufacturing standards", said:
That is better determined by a French Court administering French law.
That seems to be a key step in his process of reasoning. Could you explain why that is so?
MR WALKER: Because law is a form of social regulation, the courts are the tools by which the law is pronounced and applied and because the courts of the society in question are axiomatically better to understand the particular form of social regulation adopted in that place than would be a court in another place.
HAYNE J: That is a bit hard to say when the car is sold round the world, is it not, Mr Walker?
MR WALKER: No, that, with respect, is a very different and also very important factor of a kind which bears exact resemblance to the thalidomide problem where, obviously, and with respect, we accept, if there is a simple failure to warn matter, as there was in thalidomide, which is not a design and manufacture question, then to develop my answer to the Chief Justice, it is very plain that the system of social regulation in question will be that system at the place where the warning should have been received. Now, that is a very different question.
GLEESON CJ: That paragraph on page 223, between lines 11 and 21, would apply, if it is right, with exactly the same force if the respondent had hired a Renault motor vehicle in New South Wales and it had then overturned. There would not be a word of difference in that paragraph, would there?
MR WALKER: No, as to that paragraph. There are other matters, of course, but as to that paragraph what your Honour says is correct, with respect.
GLEESON CJ: Well, then if the respondent had hired a Renault motor vehicle in New South Wales and it had overturned, why would those matters referred to in that paragraph be better determined by a French court administering French law?
MR WALKER: Well, your Honour is positing a car overturning on a New South Wales road, where New South Wales traffic regulations and what actually obtained on that road at that time all would be discoverable as a matter of fact by the New South Wales court inquiring about events in New South Wales and it follows - - -
McHUGH J: Well, you want to be careful about using the word "discoverable"; not much is discoverable - - -
MR WALKER: Ascertainable - no, I do not mean by discovery; I mean ascertainable. The facts will be found by pre-trial work and trial testing about events in New South Wales, so that, with respect, the Chief Justice's example is one where it is the paradigm of the clearly appropriate hearing in New South Wales. Now, whether that by a side wind or by a form of obverse reasoning renders the paragraph starting at line 11 on page 223 in error is a different question altogether. In our submission, it would be an error to leave that kind of factor out of account in considering the contention that matters which occurred on French territory, by reason of conduct in France, causing injury in French territory, whether that is or is not clearly inappropriate to be litigated in New South Wales.
McHUGH J: But that proposition gives a very different content to the term "clearly inappropriate" than what it seems to mean. Let it be assumed in your favour that the French court are much better at determining the issue. Why does that rate New South Wales a clearly inappropriate forum?
MR WALKER: Well, in itself, that kind of comparison (a) is not only invidious, which has relevance to application courts, and (b) if the balance is the other way around, is contrary to persuasive authority, that is, nothing that binds in this Court, but there is a great deal of persuasiveness in the proposition that once it be established that another forum ought, by default, be where it is litigated because the present forum is clearly inappropriate, it is not to the point, that is, it is not determinative in the discretionary argument, that there will be different and, some would say, less satisfactory procedural tools available in the other forum. So I am bound - - -
McHUGH J: When you are talking about these persuasive authorities, are you talking about authorities which have applied the clearly inappropriate test?
MR WALKER: No.
McHUGH J: No, of course not.
MR WALKER: No, I am talking about authorities at the second - - -
McHUGH J: You have to face up to the fact that whether people like it or not, this Court has laid down the clearly inappropriate test, and commentators do not like it. Dr Pryles, in particular, does not like it.
MR WALKER: I do not say a word against it, your Honour. I have not sought leave from the Court, which would be necessary, and my arguments stand or fall on the judgments which bind, at present, concerning the clearly inappropriate test, and if my arguments, in essence, seek to deprive the clearly inappropriate test of any content, then they must fail, because that is the test by which they are to be measured. However, it is not the case that the clearly inappropriate test adumbrated in Voth v Manildra after the choice was presented of the Spiliada and elaborated in Henry v Henry - it is simply not the case, with respect, that that is a test that renders irrelevant as if the second paragraph on 223 was entirely wrong as a matter to be considered. The question of the location of the court system, whose own laws, whose municipal or domestic laws, will provide the yardstick for measuring the rights and obligations of the parties.
CALLINAN J: Mr Walker, could I just ask you a question in relation to that? The respondent has claimed exemplary damages. Now, it is the fact, is it not, of reading the affidavit to which you earlier referred us, there does not seem to be any head of claim under French law in this circumstance for exemplary damages.
MR WALKER: It is compensatory only, yes, your Honour.
CALLINAN J: Yes. So, does anything turn on that, that exemplary damages are theoretically possible in New South Wales but not possible in New Caledonia - not available?
MR WALKER: No, for the following reason, I am afraid? If we are correct as to the way the choice of law rules operate, and that is the argument to which we will next come, then the content of the right, including, therefore, the measure of the damage is part of the substantive law.
CALLINAN J: And French law applies.
MR WALKER: And the substantive law plainly says no exemplary damages, and I am quite unable, I am afraid, to say that that plain command of the French law could not be applied straightforwardly by a New South Wales court. I cannot call that in aid.
CALLINAN J: Do we give it any significance, the fact that - - -
MR WALKER: It is significant because it shows that there is a real - - -
CALLINAN J: A real difference.
MR WALKER: - - -difference as to the outcome, depending whether French law regulates or New South Wales law regulates the rights of the parties. That is very important because of the wholehearted acceptance by Justice Stein of Mr Justice Clarke's analysis in Thompson v Hill, an analysis which we attack root and branch. So, it is very important so far as the rights inter se these parties is concerned. It is not, I regret to say out of self-interest, important for the way in which the clearly inappropriate forum argument is to be determined because I am quite unable to suggest that a New South Wales court maybe missing some nuance or other or may not have the benefit of French adjectival law when it comes to answering the question, "Can exemplary damages be awarded or not?"
We say the very simple non-nuanced, non-adjectival answer is, "No, they cannot" and it would be inconsistent for us to suggest that that is the difference which can be thrown into the balance as something - I should not say thrown into the balance - as something which should have contributed to a clearly inappropriate forum finding.
CALLINAN J: You do not make that submission?
MR WALKER: It does not on its own, no. It is not a useful item.
CALLINAN J: Is it a factor at all?
MR WALKER: No.
GLEESON CJ: This was a rented motor vehicle, was it?
MR WALKER: Yes.
GLEESON CJ: Where was the contract of rental entered into?
MR WALKER: Noumea, your Honour.
GLEESON CJ: Does the contract contain no provisions relevant to the claim made by the respondent?
MR WALKER: Not in evidence, no, your Honour. That, I hope, is carefully framed so as not to be the equivalent of "no".
GLEESON CJ: Well, I suppose your client was not a party to the contract.
MR WALKER: No, that is right.
GLEESON CJ: Would that matter under French law?
MR WALKER: I cannot say. Your Honours asked me a question there about what we would call privity, in particular, and I do not know the answer.
Your Honours, could I then return to the question of how the issue came to be presented because, in effect, we have been challenged in the written submissions as if we had argued the special leave application on a false basis. In our submission, that is not the case. If I could take your Honours very quickly to the way in which we say the ratio in the Court of Appeal proceeded, commencing at the foot of page 342 of volume 2 of the appeal book, at paragraph 39 in Justice Stein's reasons.
To set the scene, your Honours will recall that there was a number of arguments against Justice Smart's conclusion. Some of them are the subject of the contention and I will not touch on at the moment. Some of those arguments were squarely based upon House v The King challenge to a discretionary decision, the discretion coming, of course, at the end of the exercise. In what might be called the House v The King consideration, picking up at paragraph 39, there is the reference to one of my learned friend's submission below, adapting, obviously enough, some of the language of your Honour Justice Gaudron in Oceanic. I think the second sentence in paragraph 39 is probably to be attributed as the learned judge's paraphrase of my learned friend - - -
GUMMOW J: Well, I do not understand the first sentence of paragraph 39. That is what had been pleaded. That is what your opponent had pleaded.
MR WALKER: Yes. The question he was also arguing that - - -
GUMMOW J: What is going on? It was not a case where you, as a defendant, said "I am relying on the lex loci delicti", which produces a different result. This is a case where the plaintiff lays its action and relying on the foreign law.
MR WALKER: Well, it seems to do both, your Honour.
GUMMOW J: Yes. There is nothing wrong with that.
MR WALKER: It seems to do both. The fact that this argument was strained to be put and the fact that it was considered in the context of how this Court proceeded in Voth v Manildra, to which I will be coming, shows that there was a contest before the Court of Appeal which, as we understand on the written submissions, is repeated here, as to whether it mattered - - -
GUMMOW J: Let us just go back a bit, Mr Walker. Assume, when the time came for you to plead, you pleaded by accepting paragraph 16 on page 5, there would be no more issue, would there?
MR WALKER: About that - - -?
GUMMOW J: About the substantive law.
MR WALKER: That is right.
GUMMOW J: Yes.
MR WALKER: We do not rely on the fact that there was an issue as to - - -
GUMMOW J: So, there seems to be a false issue running around in paragraph 39.
MR WALKER: Why I am taking some pains to show how that false issue was fallaciously taken up, (a), decided, and (b), used, by Justice Stein, and that is the purpose of this part of the exercise. In the second sentence of paragraph 39, we would respectfully suggest that should be read as Justice Stein's paraphrase of Mr Margo's submission, but whether it be the judge or counsel does not matter. Then, in the third sentence, going to the top of page 343, the short point, at this part of the appeal, is encapsulated. Justice Smart's:
assumption to the contrary -
that is, to the contrary of New South Wales being the substantive law -
and his giving it such great weight, caused the discretion to miscarry.
That is a classic House v The King appellate attack of exactly the same kind as caused the result in Voth v Manildra. Then, in paragraph 40, the judge's reasons, picking up at the second sentence:
it was unnecessary to apply French law to arrive at -
what his Honour calls "justiciability" -
and his Honour can not have been referring to that when he said that the substantive law to be applied was French law.
We think, with great respect, that that is a reference to the difference between, or the perceived difference between, the first and second conditions in Mr Justice Willes' reasons in Phillips v Eyre. Then the very plain planting of the flag is made:
Applying Thompson v Hill and earlier authorities in the Court, Smart J should not have taken into account -
so it was irrelevant -
should not have taken into account in the exercise of the discretion that a New South Wales court would apply French law as the substantive law to determine the issue of liability.
Now, it turns out there is more than one reason for his Honour concluding that. It then says in paragraph 41 that:
It is not my understanding of Voth -
to which we will be coming -
that it held that the lex loci delicti will be applied by the local court as the substantive law for the determination of liability of a foreign tort. Indeed, the majority said that the precise role of local law under the double actionability rule in Phillips v Eyre did not need to be explored.
To which we say, quite so, in stark contrast with what their Honours said in Voth about the second condition in Phillips v Eyre, to which we will come. Then in the critical paragraph 42, and this is, as we say, what happened, Justice Stein said of Justice Smart having found that "the substantive law to be applied is French law", he goes on:
This finding was not merely for the purpose of the second limb, justiciability, in the McKain test -
I am not quite sure whether the first and seconds have been transposed at this point, but the semantics do not matter -
It was a finding that French law would determine liability as the substantive law to be applied.
That is, with great respect, correct. That is what Justice Smart did:
I am satisfied that the succeeding paragraph of the judgment confirms this to be so. The finding was an unnecessary and arguably premature ruling, if not incorrect.
It need not be done. That would not normally be a House v The King reason to overthrow judicial discretion based upon it. It was "arguably premature" meaning, not that this judge, Justice Smart, had done something sooner than Justice Smart should have done it, but that Justice Smart should never had done it at this stage in the proceedings, namely, a stay application.
So here was Justice Stein saying before the Court of Appeal: Justice Smart should not have thought about this issue at all for this application. It is that proposition which is, in our respectful submission, an egregious error when measured against the command of this Court in Voth v Manildra.
GUMMOW J: But what do we do, being practical about this - as we are exhorted to be by various authorities. Suppose one did come to the view that the Full Court did make an error of the kind you have isolated, but we also were of the view that the exercise of discretion by the primary judge did not apply the right criterion either, for the reasons Justice McHugh was developing with you. Do we then re-exercise the primary judge's discretion?
MR WALKER: You are entitled to.
GUMMOW J: Or would we send it back?
MR WALKER: Well, it may be a mercy to the parties to - - -
GUMMOW J: As Justice Gaudron reminds me, that is what was done in Voth.
MR WALKER: Yes. Following the passage on which I will be placing most reliance, there is a then turning to the question of the re-exercise of the discretion. There are only two questions: should you remit, or should you re-exercise yourselves? This is a case where we cannot sensibly ask for remitter on the basis that this Court is not seized of the relevant material.
GUMMOW J: Well, we do not have the content of the French law, unfortunately.
MR WALKER: On the other hand, my client fought the application as it did with the material it had.
GUMMOW J: Yes, that is right.
MR WALKER: I cannot conscientiously use a remitter for second go.
GUMMOW J: Yes.
MR WALKER: But remitter is, obviously, the orthodox response of this Court to a miscarried discretion, and remitter to first instance in this case would be the result if your Honours were to decide that Justice Smart's reasons had miscarried for a different reason from those of the Court of Appeal. So that is the orthodox primary response. I simply wish to make it clear that I have nothing further to say against a re-exercise of discretion, if your Honours were determined to do that. The time, alone, that these matters have occupied is a matter that will no doubt press upon your Honours.
Can I simply complete what I was saying about paragraph 42 in Justice Stein's reasons. As the last sentence makes it clear, not only does his Honour say it need not and should not have been done - and it is looking at the question of the substantive law to regulate the rights and obligations between these parties - but he says it is arguably incorrect. Now, that is an extrapolation from saying - - -
GUMMOW J: All this has to be decided in the framework of what the pleadings will allege.
MR WALKER: Yes, your Honour.
GUMMOW J: This seems to ignore that.
MR WALKER: I think it probably - - -
GUMMOW J: - - - as if there is some abstract question out there: "what is the substantive law?", which somehow controls things regardless of the way the parties have framed their cases, the pleadings.
MR WALKER: Yes. The pleadings are of a kind which, as to some aspects, and with great respect, might justify the description "ingenious" for what comes down to the allegation that an injury was caused by a roof crushing when it should not have. That really is what it comes down to. That is one of the reasons why local connection, meaning that New Caledonia earth, is of some importance, as well as the system of law that governs how one designs, manufactures and drives cars in that jurisdiction, because we know that the roof was crushed because the car found itself in a position which is exceptional: namely, upside down and at speed.
How that came about is obviously a very important fact in the case, and there is material in the appeal book which makes it clear that there is expected to be contest concerning, obviously enough, whether this had nothing to do with a roof failing at a level when it should have held up - that is, the level of impact - but rather, it has everything to do with a roof failing when it was put into a position by reason of excessive speed, on unsuitable conditions, which had been signposted in advance. All of that lies in the future, all of that is New Caledonian, that is, French law applied to New Caledonian fact.
GAUDRON J: I suppose the question that one has to get to is the opening of that pleaded paragraph to which Justice Gummow has referred - - -
MR WALKER: Paragraph 16, page 5.
GAUDRON J: - - - it says "Further and in the alternative", if I remember rightly.
MR WALKER: It actually says, "Further or in the alternative".
GAUDRON J: "Further or in the alternative".
MR WALKER: Which I suppose literally means that "Further" is one possibility and "in the alternative" is the other possibility. It certainly means that there is a pleading further that the governing law was the law applicable in New Caledonia.
GUMMOW J: Which you could accept.
MR WALKER: Yes.
GUMMOW J: Bye bye, Phillips v Eyre.
MR WALKER: Bye, bye any contest.
GUMMOW J: Yes.
MR WALKER: Bye bye, Phillips v Eyre, your Honour, is a very different question depending upon whether the farewell is doctrinal or is as an issue between these parties.
GUMMOW J: Yes, but you being the party with it, one might have thought some advantage to get out of it being New Caledonia law.
MR WALKER: Yes. We gratefully accept 16, if that is their case. As I say, it would no doubt bear elaboration in pleading or particulars. It seems, as Justice Callinan has already identified, that there is an important substantive issue recognised and we would have thought, with respect, accepted between the parties, that the possibility of a court registering disapproval of slack design by exemplary damages beyond compensation does not exist in French law, which is compensatory. But, beyond that, Phillips v Eyre arises because, as one finds at the foot of page 343, the Court of Appeal in this very case has said:
it is arguable, applying Thompson v Hill -
so this is stare decisis for New South Wales -
that the substantive law to be applied would be that of New South Wales.
HAYNE J: Why is that conclusion of any relevance in face of the pleading as framed?
MR WALKER: Because they do not confine themselves to paragraph 16.
HAYNE J: But one of the claims propounded by the plaintiff is a claim founded in French law.
MR WALKER: On French law, yes, one of them is.
HAYNE J: What does it matter, on a stay application, in inquire whether that claim is good, bad or indifferent? That is the claim the Court is being asked to adjudicate on once jurisdiction is exercised. Why do we get ever to consider the validity of the claim in this procedural context, whatever the Court of Appeal said?
MR WALKER: It may be that what we come to this Court to do is to ensure that whatever the Court of Appeal said will not be influential on that matter. What the Court of Appeal said is that this provided the ground to regard a judicial discretion as having miscarried, paragraph 43, the next page of the appeal book, and this was the error in (a) doing it at all, that is, considering the substantive law at all, and (b) having done so, coming up with the arguably incorrect view that it was French law as opposed to New South Wales law, bearing in mind Thompson v Hill.
Now, paragraph 16 does, as your Honours have observed, have the plaintiff ironically in a case which has given rise to the perhaps feigned issue of Phillips v Eyre. It gives rise to the plaintiff saying, "and I rely on French law too", but it does not say that he relies only on French law. When it comes to relying on what I will call a familiar tort pleaded in familiar common law terms for an event which occurred on any view of it, be it the accident in New Caledonia or the design and manufacture in Paris in territory governed by French law, that plea - which did not overtly fall under paragraph 16, it comes from all the rest of the pleading - gave rise to the New South Wales choice of law question - - -
McHUGH J: No, well, it all depends on what you do. If you join issue on it, it would. It is unlikely you are going to join issue on that pleading, are you?
MR WALKER: Not 16.
McHUGH J: No. Once you accept it, that is a fact that is tendered between the parties.
MR WALKER: Unfortunately, 16 is not a fact.
McHUGH J: It is an issue that is tendered between the parties.
MR WALKER: Paragraph 16 pleads and none the worse for that, the point of law. Unfortunately, the fact of what the French law says which is a fact is not pleaded and that, no doubt, is why there would need to be elaboration, but, as I say, the obvious example to be found on the record is the exemplary damages point, that is one. Assuming that we snapped up 16 and said yes, because it commences further in the alternative, it is simply not the case that that is the end for all purposes of the governing law question in the case and I still, designedly, leave to one side the exotica of the quasi-contract claim.
McHUGH J: No, but the importance of it makes all argument about Phillips v Eyre and its two limbs irrelevant in this case.
MR WALKER: No, because our acceptance of 16 does not prevent them from arguing, as they did very strenuously before the Court of Appeal and before Justice Smart that the substantive law governing negligent design, manufacture and the roof crushing, paragraphs 1 to 15 of their pleading - everything before 16 - that that was lex fori, New South Wales.
GLEESON CJ: Can I ask you just a pleading question? In the proceedings in New South Wales the content of French law is a matter of fact, is it not?
MR WALKER: Yes.
GLEESON CJ: Is it a matter that has to be alleged in the pleading?
MR WALKER: Yes.
GLEESON CJ: Where is the allegation about the content of the governing law?
MR WALKER: There is not. As I observed to Justice McHugh, we have a point of law pleaded but the second shoe does not drop.
McHUGH J: Why does it have to be pleaded? In England it has to, I think, these days? The New South Wales Evidence Act used to have a section which said that foreign law was a question of fact and was presumed to be the same law as New South Wales law but that seems to have disappeared with the 1995 Evidence Act 1984 , does it?
HAYNE J: Unless it is caught by the surprise rule?
McHUGH J: Yes.
MR WALKER: I think it is fair to say it would be caught by the surprise rule but can I try to put it on a perhaps more substantive or principled basis and that is this - - -
HAYNE J: I thought the surprise rule was very principled, Mr Walker.
MR WALKER: I am sorry, your Honour, I mean, more a matter of doctrine, that is doctrine of law as opposed to procedural fairness which is the surprise rule. A dichotomy is fact and law, that is, there appears to be no third concept. Law in question in a New South Wales court will be the law of New South Wales, the law of Australia and, otherwise, all other matters would appear not to be within the competence of a New South Wales court as a matter of law except, query, certain aspects of international law which do not matter in this case.
It tends by default, if nothing else, to suggest that proving phenomena upon which your claim depends or your defence depends is the proof of facts, the proof of states of affairs.
McHUGH J: That was finally settled in Mostyn v Fabrigus. There were earlier cases, but since the end of the 18th century.
MR WALKER: Yes. The Minorquin kidnap where one does have to plead that which you say justifies. Now, in our submission, that would govern in New South Wales still, namely, that you would have to plead those facts which give you your cause of action, the material facts which given you your cause of action.
GLEESON CJ: Paragraph 16 looks like dangling averment.
MR WALKER: Does it not? Yes, your Honour.
GLEESON CJ: To which the response might be, "So what?"
MR WALKER: Yes.
GLEESON CJ: I mean, the response to the allegation in paragraph 16 might be, "So what?", unless the governing law - - -
MR WALKER: Yes. The defendant does not plead to paragraph 16 because it is not a material fact and as a point of law does not take anyone anywhere but, of course, we would respond somewhat differently in fact. I mean, we have now painstakingly got this point on the basis that there will be a difference between French and New South Wales law.
HAYNE J: This brings us back, does it not, to the proposition that the essence of your forum non conveniens argument is that French law will apply and the plaintiff asserts that fact. What more need the application court, as you have referred to it, consider? What more could the application court consider?
MR WALKER: On the question of choice of law, your Honour means?
HAYNE J: In relation to your argument about stay.
MR WALKER: Well, there is a constellation of other matters, whatever they may be - and they are assembled by Justice Smart - which are said to render the forum clearly inappropriate. Page 222 of the appeal book collects some of them. But your Honours having seen the judgment, will know that there is reference of a familiar kind akin to that which can be seen from Lord Goff's discussion, which this Court has said, notwithstanding the different test, is still a useful and practical checklist. One finds some of those matters being referred to as well. So the answer to your Honour's question, "What more?", well, what I might call all the Lord Goff matters approved by this Court as being relevant. But on the choice of law aspect of our stay application, your Honour, if paragraph 16 were to be treated as a statement by the plaintiff definitive and categorical for the whole design manufacture failure to warn claim that it was governed by French law, then no more would need to be said about that because it would not be in contest.
Unfortunately, as the opening words of paragraph 16 make clear, that is not a plea which is said to cover the whole of the claim and, of course, whether it is a dangling averment or otherwise, the better view is it need not have been pleaded by the plaintiff at all, and one is reminded of Justice Gummow's reference to that matter in David Syme v Grey [1992] FCA 479; 38 FCR 303, the particular passage at page 324 at the foot of that page. I do not need to take your Honours to it, but it is familiar law concerning, I think as your Honour Justice McHugh pointed out, a very old matter of principle and practice.
McHUGH J: Well, historically, in a case happening outside the jurisdiction, assuming it was what was called a transitory action, and in the days when venue was important, a plaintiff would have had to plead that this happened in New Caledonia, which was a place within a relevant county of England and which you would not have been able to traverse. It was a fiction, but that was the way the English courts dealt with it historically.
MR WALKER: Yes, well that is a different factual approach to it. It no longer has sway. But, one way or the other, a fact is necessary, and to add to our answer to your Honour the Chief Justice, there is no fact pleaded. It would appear that dehors the pleading, if one can look at that from the material exchanged between the parties and vigorously argued, it would appear that the plaintiff takes the position that 16 is by way of more abundant caution and fall back.
GLEESON CJ: I assume that 16 is there in order to protect the plaintiff in case it should appear that there is something more beneficial to the plaintiff about French law than about New South Wales law.
MR WALKER: That is the only rational explanation, your Honour.
GUMMOW J: It is not the only rational explanation. There is a whole body of academic writing which is most recently conserved in Mr Fentiman's book on Foreign Law in English Courts, published in 1998, at pages 97 and following that, consistent with what Justice McHugh has been putting to you, the plaintiff has to, as a matter of invoking jurisdiction, plead these matters, because that is what Phillips v Eyre is.
MR WALKER: Yes, but the jurisdiction was invoked by a different rubric in this case.
GUMMOW J: Maybe it was revoked by two.
MR WALKER: I am sorry and I apologise then for my comment earlier. We have never, hitherto, read 16 or understood it to be a jurisdiction attracting plea.
GUMMOW J: You want to talk about Phillips v Eyre. What I am putting to you is you have to analyse the nature of Phillips v Eyre - - -
MR WALKER: We accept that, your Honour.
GUMMOW J: - - - which is not yet settled, and one theory is a theory consistent with a requirement that the plaintiff aver it.
McHUGH J: Phillips v Eyre can only be understood by a profound knowledge of English common law procedure for the two or three hundred years that preceded it. The real basis of Phillips v Eyre, historically, is the fact that the juries had to determine all factual issues and they were the juries where the matter occurred because juries were witnesses, and if there were two or more places, you had to summon two or more juries, and the problem arose when an incident happened outside the realm, outside the territory of England, there was no jury that you could summon from the relevant place, so you adopted these pleading fictions. Then the question arose, "What law would you apply?". Well, because of the averment that had happened within England and within the county, you applied English law.
MR WALKER: But, your Honour, by the time of Phillips v Eyre, it is clear that that was not untraversable, because Phillips v Eyre works. Its whole ratio depends upon the court treating as a fact that the events sued upon did not take place in England.
McHUGH J: Yes, but then if you look at that, say, by the time of - then as time went on there was some mitigation, so to speak. You had a case like Buron v Denman where the defendant is able to show justification, notwithstanding that English law is applied.
MR WALKER: So-called justification by the place, as Lord Mansfield had pointed out in the Minorquin Case, yes, your Honour.
McHUGH J: Then by the time you come to The "Halley", there is really no support in any of the authorities cited in The "Halley" for the proposition for which it is referred, and then it is picked up in Phillips v Eyre and, historically, the basis of Phillips v Eyre has long disappeared.
MR WALKER: Yes. We want to say this of Phillips v Eyre, not that it has nothing to reveal as the common law in this country on the question of the substantive law that governs Mr Zhang and Renault, in the case before your Honours, but that what it has to contribute by way of revealing the common law should be seen as being revealed by the reasons of the court which actuated, which drove, which produced the result in that case, as opposed to the comment, called the first condition, which is a comment based upon a then very recent Privy Council decision, perhaps not calling for question in the court, certainly not calling for decision, an irrelevant matter in Phillips v Eyre, because there was no question that in England laying violent hands on somebody and imprisoning them was as actionable, prima facie, as it was in Jamaica.
McHUGH J: The purpose today - a new ground can be found for supporting Phillips v Eyre, and that is that the forum should not, as a matter of policy, allow actions to be litigated in its court and the resources of its courts taken up, unless it was the sort of action its court would allow to be litigated if it occurred within the forum.
MR WALKER: As to the first condition, a qualified "yes" to your Honour's question, for this reason. It is not, in our submission, for reasons which are well identified, both in The "Halley", reading both judgments, and also in Phillips v Eyre itself, it is really not a matter to which a court is best suited to determine, as a matter of politics or policy, what a court system to be engaged in doing. It is, after all, a question, firstly of jurisdiction; secondly whether, within the court's power, regulated as it is by statute and by rules of court by way of deleted legislation, to determine nowadays whether the forum is clearly inappropriate. In our submission, nothing more is needed, and Phillips v Eyre does not produce an extra species beyond clearly inappropriate, on a policy ground.
McHUGH J: Why not? Take the illustration you give in your written submissions about the New Zealand company which wants to brings an action for unfair competition in the courts of New South Wales, against a New South Wales company? The tort having occurred in the United States, you say it is "unjust", that it should not be allowed to bring it under Phillips v Eyre.
MR WALKER: Your Honour, the justice, the balance - - -
McHUGH J: Why should the New South Wales courts be bothered with that? Go and sue in New Zealand, or go and sue in the United States, why should the resources of the New South Wales court be taken up, hearing an action for unfair competition?
MR WALKER: Because the New South Wales Parliament has said that it has jurisdiction to entertain such claims.
McHUGH J: It says it has got jurisdiction over persons issuing a writ, but it is another question as to whether or not - - -
MR WALKER: If the New South Wales Parliament thought, as a matter of New South Wales policy, that the courts were so precious a resource that they should not be available to everybody who wants to sue a New South Welsh person, but should be available only to those people who want to sue a New South Welsh person for a New South Wales cause of action, then they could say so. For reasons one would have thought - - -
GUMMOW J: It might be valid.
MR WALKER: For reasons one would have thought a transcendent policy, which may well go further than mere policy, the Parliament has not done so.
McHUGH J: The judges have, in effect, have said it by applying Phillips v Eyre.
MR WALKER: No, the whole of the jurisprudence of so-called "forum non conveniens", the whole of the jurisprudence of choice of law, in private international law, is posited upon it being perfectly ordinary. Once upon a time for the courts of England to entertain cases based on events far away, and nowadays the courts of New South Wales are doing the same.
McHUGH J: I said "in effect that is what they have done".
MR WALKER: No, they have not, your Honour, because in fact these claims are common. Claims based upon events occurring outside New South Wales are not rarities which prove that somehow they should not occur.
McHUGH J: No, but I am talking about you could not bring an action of that sort in New South Wales if it had occurred there.
MR WALKER: That is - - -
McHUGH J: That is what I have been talking about.
MR WALKER: That is a question which can, and should be, regulated by the Parliament, for reasons to which we will come. That is both a venerable and, in our submission, up-to-the-minute matter of principle and policy, for reasons which have to do with, at the national level, who conducts foreign policy or foreign relations; the courts, the executive or the legislature, surely the second and third, not the first. Second, who gets to pronounce that which is, inimical to the public policy of New South Wales in matters, for example, of commercial dealing or risk allocation for loss-making exercises, whether it be a contract or tort.
McHUGH J: But why should it be a matter for the legislature or executive? The courts protect themselves against abuses of their process, including abuses of a process by the Executive Government.
MR WALKER: Yes, your Honour, is the answer to that, but nothing we say and no part of our argument entrenches to the slightest degree on the salutary power to defend the court against abuses of its own process. This is not an abuse of process case; this was not an abuse of process issue.
GAUDRON J: But let us assume, for the moment, that Phillips v Eyre is about actionability, full stop. Let us make that assumption. If you make that assumption, does not policy provide the explanation for that rule, for the actionability aspect to it?
MR WALKER: Yes.
GAUDRON J: Now, is not Justice McHugh putting to you just that - - -
MR WALKER: No.
GAUDRON J: - - - that there is room for an actionability test of the kind that has been formulated in Phillips v Eyre, as modified. You perhaps do not get to forum non conveniens. You just say, "Thank you, good day, out the door. It would be an abuse of process to proceed with this case further because it is not actionable. It is not actionable for policy reasons which give effect to the actionability test in Phillips v Eyre". I know that simplifies it a little, but what is wrong with that approach?
MR WALKER: There are a number of matters wrong with that. The first is that the first condition, as expressed by Mr Justice Willes, does not do it quite in those terms, and for reasons which we will develop later. Understood literally, that is, as a matter of ordinary English, the first condition destroys the second and destroys the ratio of the decision in Phillips v Eyre. The second reason is that for reasons of constitutional propriety, given a choice - and, in our submission, this Court does have a choice for Australia - one would regard those questions of policy as better committed to parliaments than to courts. The third reason is that there was policy, indeed, behind the first condition of Phillips v Eyre and it was the kind of policy invoked by the argument of the Solicitor-General to the effect that the courts of England were not in the business of enforcing foreign laws of lese-majesty or foreign laws permitting action for harbouring runaway slaves.
GUMMOW J: It was not all that foreign.
MR WALKER: I am sorry, your Honour?
GUMMOW J: It was colonial.
MR WALKER: Yes, well, foreign in a PIL sense, and, of course, the runaway slaves one was United States, but - - -
GLEESON CJ: What was the reason why, in Phillips v Eyre, the view was taken that the Belgian law of the consequences of compulsory pilotage would yield to the English law on that subject?
MR WALKER: There is, of course, no discussion in Phillips v Eyre of the facts in The "Halley" which would give rise to an answer to your Honour's question from Mr Justice Willes. However, if one treats the bare citation of The "Halley" by his Lordship as accepting the reasons of the Privy Council, it would appear - and I stress, it would appear - perhaps charitably put, that the reason was no more complex than had this collision taken place in English waters, both the common law and an English statute, which English statute did not extend beyond British waters, would not have permitted it, in the sense that it would have been bound to fail. May I pick up a matter that your Honour Justice Gaudron raised with us. "Actionability", in our submission, is a term the precise meaning of which becomes more elusive, with respect, the more one considers the - - -
GAUDRON J: Well, that is accepted, but let us say whether there is a cause of action that can be litigated in the jurisdiction.
MR WALKER: I am sorry. Your Honour, I was saying that because I wish to explain what we mean by actionability lest ambiguity creep in. It is obviously useful because it is one word where otherwise many would be used. By "actionability", we mean not only jurisdictional questions enabling you to plead, as it were, a case, but also whether the case has any prospect of success, because The "Halley" is about the fact that there was in England no cause of action against the colliding ship.
GLEESON CJ: But in England, for reasons that would have seemed very important to many English people, a shipowner was not vicariously responsible for the negligence of a compulsory pilot, the compulsorily engaged pilot.
MR WALKER: Twenty years later, interestingly, the majority of their representatives changed to that by statute, and changed it for reasons of policy, which would appear very close to those which appealed to Sir Robert Phillimore at first instance in The "Halley" in that judgment which Sir William Holdsworth describes as learned and well reasoned, but, nonetheless - - -
KIRBY J: Is that not a danger for you, because can it not be said that this is something that ought to be dealt with by statute. After all, the Law Reform Commission has examined the choice of law question. There are not the imperatives for this Court to deal with the matter that there are in the intra-federal questions.
MR WALKER: There are, with respect, in the sense that cases such as the present need to be prepared for trial and presented at trial, and depending whether there is clarity of the fact that the French law governs the wrong alleged or not, depends both time and money and, ultimately, the correctness of a result. So yes, there are different reasons, but they are no less pressing. This Court is the steward and arbiter of the common law and this is still a common law question.
McHUGH J: But it is all there in McKain v Miller.
MR WALKER: No, your Honour.
McHUGH J: Pfeiffer's Case has taken away somehow as intra-national courts are concerned.
MR WALKER: And Pfeiffer is a case about the common law.
McHUGH J: Yes.
MR WALKER: But the common law, as affected in that case by federal notions - - -
McHUGH J: By the Constitution.
MR WALKER: Yes. Sorry, by the federal compact made by the Constitution. It is still the common law. In our submission, the importance of parliamentary role here is the importance which is also found throughout The "Halley", and some of the cases which are inappropriately cited in The "Halley", as it happens. The Amalia - - -
GUMMOW J: Perhaps one has to know, if one is debating at this level, which parliaments?
MR WALKER: May I start with, first of all, the New South Wales Parliament.
GUMMOW J: Yes.
MR WALKER: If there be matters of policy in New South Wales, protective of the revenue and resources of New South Wales, by which their long-established and traditional statutory jurisdiction of the Supreme Court should be cut back so as to be less welcoming, then that is clearly a matter for Parliament and not for the judges. Indeed one would say, in terms of resort to the court, apart from the importance of controlling abuses of one's own process, of all organs of government, it should not be the court that determines what it gets to do; that is a matter of the court's duty.
McHUGH J: Yes, but as at the present, Phillips v Eyre provides the filter. It protects the court. Now you want us to change it.
MR WALKER: No.
McHUGH J: You want us to expend the resources of the Supreme Courts and district courts and local courts of this country to hear actions which under the present regime they would not hear.
MR WALKER: I may be wrong, I do not think either district or local courts, certainly local courts, I do not think they have extended jurisdiction of a kind which would cover all of these for foreign defendants, for example, but that is by the way. That can be altered by statute, no doubt. At the risk of repetition, in answer to your Honour's return to that question, first, that is for the New South Wales Parliament, that is an allocative question of politics. It will vary from time to time and it will vary according to political opinion. It is certainly not a matter that is to be gathered from the ether, either by way of a judicial view of what public opinion is or a judicial view of what the Government should have done in any event before the Court did it. That is the first answer.
The second answer is that Phillips v Eyre as a filtering device is not what Mr Justice Willes said was happening. It is certainly the case that the Privy Council in The "Halley" applied what might be called a filter or a block, just closed the sluice on it, but they did not do it by reference to why a court should not be bothered, far from it. They did it by reference to what they regarded as the superior claim of the English policy then ironically contained in one form of statute which 20 years later was reversed, showing, in our submission, at one blow that this is a matter for parliamentary intervention, as happened in terms of the merchant shipping legislation, and showing, furthermore, that it is a most uncertain guide for the local judge, that is, the forum judge, to say that there is some policy reason, never expressed to your Honours in terms of exhausted resources, only ever expressed in terms of that which is wrong about the conduct between the parties, actionability, always expressed in terms of justice between the parties, "Have you done something wrong for which you should pay?".
There is great danger, in our submission, in the way in which the first condition of Phillips v Eyre has been read, never by this Court, for an international tort. The way the first condition has been read so as to suggest, in effect, that you go to great pains to find out, where was the tort committed, locus delicti commissi, and then having noticed it, fleetingly, or as in Mr Justice Clarke's analysis, instantaneously, comparing it with the law of the forum and then never looking at it again.
McHUGH J: Yes, but you want us to change a rule of law that stood for 137 years or longer and which in England, where it has been changed, it has been modified. Take defamation. If I remember rightly, the Phillips v Eyre rule still applies by statute to defamation actions in England.
MR WALKER: But the fact that it is by statute is an important part - - -
McHUGH J: Yes, I know, but when they abolished the Phillips v Eyre rule and made the lex loci delicti the governing rule, they made an adjustment in the case of defamation proceedings, but you want us to abolish it in all cases.
MR WALKER: No, your Honour challenges us for wanting to abolish a rule.
GUMMOW J: But you want to abolish Thompson, do you not?
MR WALKER: We say Thompson is wrong.
GAUDRON J: You do not need to, and as I understand it, you do not challenge what has become known as double actionability. It is not an issue in this case.
MR WALKER: It is not an issue in this case and in that sense it only matters because it has been used against us - - -
GUMMOW J: In this paragraph 43.
MR WALKER: It has been used against us to say that what it produces is lex fori and irrelevance of French law ever.
GAUDRON J: Yes.
McHUGH J: But reading your submissions I thought that you wanted to overturn it and I could not help but think in wanting judicial confirmation of Dr Bell's PhD thesis - - -
MR WALKER: Your Honours will understand if I simply respond, "Perish the thought". Your Honours, what we say about our endeavour is not that is abolishing a rule but that all so-called rules of the common law are to be found in the time honoured way, read the cases, see what they decided, see why they decided what they decided and ensure that what they cited provided intellectually proper backing for that which was supported by authority. Moving from that then ask, what is the principle to be gathered from the decision for those reasons from that reported case?
GAUDRON J: But you ultimately go further than saying the notion that Phillips v Eyre requires the application of the forum law as a substantive law governing the rights and liabilities of the parties has no foundation in Phillips v Eyre itself or in any other authority.
MR WALKER: That is right.
GAUDRON J: Yes.
MR WALKER: But we seek to explode a myth. I have got to persuade your Honours it is a myth. The best way to expose it as a myth is to go to the.....case. This said to be the rule in Phillips v Eyre. Cases do not belong to two different classes, cases that fall to be considered by ordinary stare decisis and for intellectual persuasiveness on the one hand and cases which become scriptural on the other.
If one were to look, for example, at Sir Victor Windeyer's treatment of Phillips v Eyre and particularly the treatment in out of courts since it was pronounced. In Anderson's Case, and I do not need to take your Honours to it, the precise passage, your Honours will recall is in 114 CLR 40 to 42, but to be gathered from that very carefully expressed, with great respect, reference to the problem. The first thing is that it was problematical - not as a matter of policy, as a matter of jurisprudence.
The second was that it was, his Honour thought, sufficiently well established as a - I trust your Honours will not treat this as impertinent - a sacred text, not to look behind it but to construe its words and in our submissions, and with great respect, that was an error and, in our submission, the miraculous transformation from lex loci delicti to lex fori and back to lex loci delicti, which can be found in the federal cases in this Court, those cases which are all encompassed and now dealt with by Pfeiffer, that miraculous transformation came about not by perceiving that there was anything wrong in the cases that are talked about in Phillips v Eyre - leaving aside Machado v Fontes - but by simply looking at exactly the same text from a different direction to which we wish to come in a moment.
Now, in our submission, any law which calls itself a choice of law rule - and, in our respectful submission, that is what Mr Justice Willes does in his ratio - any law that does that, which can be seen by judges grappling intellectually with what it means, to produce either lex fori or lex loci delicti according, as it were, to the passage of years using the same text as the outcome, is clearly problematical. We adopt and embrace what Sir Victor Windeyer says about the difficulties with the rule and its interpretation and we respectfully submit to your Honours that the proper approach is to go back in the common law way and look at the foundation and ask, "What did it really decide?".
Then to ask, because obviously myths can become binding, is there a case in this Court which we need leave to reopen in order to submit that the first condition is, with great respect to Mr Justice Willes, infelicitously expressed and refers to something of some importance but does not encompass, by the breadth of its language, all the logical difficulties which arise by the interplay between lex fori and lex loci delicti set up on those two pages. That it is an open question is shown by the language we have already gone to in this Court in Voth v Manildra. That which did not need exploration, may we say, with great respect, is not something which was well understood in a sense of being clear and the map is available.
What did not need to be explored was that which Mr Justice Windeyer clearly thought was difficult and problematical and that which did not need to be decided in Voth and did not need to be decided in Phillips v Eyre itself. It was decided in The "Halley", but for the reasons to which we will come, as a matter of what the common law is, and if it be necessary to distinguish what the common law in this country should be, that, in our submission, is to be found from (a) the ratio in Phillips v Eyre, and (b) - and here we do infringe a form of stare decisis - in the reasoning, persuasive on its merits of Sir Robert Phillimore, and not the decision, in our submission, close to devoid of reasoning of the Privy Council.
KIRBY J: You make a point in your written submissions that, in fact, Phillips v Eyre has never been applied in an international tort case. Now, that seems a surprising thing that in 100 years that has never been done. I assume the textbooks assume that it applies, but what strength do you get from the fact that in Pfeiffer the court took a particular step in the intranational cases for a coherent principle for the international cases?
MR WALKER: We do get support and we get no - there is no contraindication of the correctness, in principle, of that for which we contend in Pfeiffer. There is support for that which we contend in Pfeiffer, which support needs to be carefully and discriminatingly selected. We do not rely upon Pfeiffer because it is clearly informed by federal considerations, which not only do not find an exact analogue in cases of this kind, but which really are fundamentally different from international matters. But what we do have, for example, is paragraph [92] in Pfeiffer in the majority judgment. Paragraph [92] raises a - - -
GUMMOW J: It is the joint judgment.
MR WALKER: Joint judgment. Paragraph [92] raises a matter which has no federal underpinning, or so we respectfully submit, that is, it is clearly a matter which will be true in a federation, maybe a fortiori, but it is equally true internationally. In fact, some could say the a fortiori is the international context because there comity between nations and public international law will play a role.
MR WALKER: Paragraph [92] is a matter to which we want to come when we seek to persuade your Honours that Phillips v Eyre has been, by some, misunderstood and has been thought to erect a rule based upon the reasoning it gave for its decision when in truth it provided no such rule. One of the tests of that, and one of the means by which we seek to persuade your Honours to that conclusion, is precisely the form of reasoning that is set out in paragraph [92] of Pfeiffer and one need only contemplate the facts of The "Halley", to which we will be coming, and how that runs counter to paragraph [92] of Pfeiffer to submit, in answer to your Honour Justice Kirby, that there is a deal in Pfeiffer of great importance which supports our common law argument and is not reduced in its relevance by the fact that Pfeiffer had very special federal considerations and, of course, we should - - -
KIRBY J: I understand all that, but what is the status of the French civil code? Is that legislative in its character or does it have some other status?
MR WALKER: If one were to treat statutory law and case law as a procrustean bed to apply to the French system, then it is statute law.
KIRBY J: The code is made by the codifiers, is it not, and they are distinguished scholars and academics? Is that correct or is it enacted by the National Assembly of France?
MR WALKER: It does not become a law because jurispruders write it. It becomes a law because the Assembly adopts it.
GLEESON CJ: That is a fundamental distinction between the exercise of legislative and judicial power in France, is it not?
MR WALKER: Yes, your Honour.
GLEESON CJ: The reason French courts do not make law is because of the separation of powers.
MR WALKER: Yes, your Honour.
GUMMOW J: Do they not then have glossators to whom regard is paid?
MR WALKER: Yes, your Honour. They have no case law system, but they read cases in order to understand the law.
McHUGH J: That is debatable now I think, is it not?
MR WALKER: Well, I am being facetious, your Honour, but clearly we are probably in an era at the end of which, whenever that will occur, one will be able to look back and say, as anglophones no doubt with some undeserved pride, that a case law approach, a precedental approach, has started to play a role. The same is true, for example, with the Republic of Indonesia, which is said to be a code, not a case law, system, but they now have what they call jurisprudence which their Supreme Court will take into account.
KIRBY J: Perhaps all systems are moving towards each other, rather then everyone joining the Anglo-Saxons.
MR WALKER: Well, we seem to have a new statute every week, your Honour, so, yes.
CALLINAN J: Mr Walker, can I ask you another question. The Court of Appeal at page 344, in re-exercising the discretion in paragraph 45 thought it significant there were some "legitimate juridical advantages" to which his Honour referred and they were procedural advantages. Now, you challenge, as I understand it, the re-exercise of the discretion, do you, in the event that the occasion for that arises?
MR WALKER: Yes. We say the Court of Appeal did not properly enter the zone where it could, we exercise the discretion.
CALLINAN J: I understand that, but in the alternative, do you say - - -
MR WALKER: Got it wrong in that zone, inter alia in paragraph 45, because although so-called legitimate juridical advantages, and though money are relevant considerations, they, in our submission, have to be considered - - -
CALLINAN J: Well, what is the authority for that, that they are relevant? A similar question arose, and I dealt with it - - -
MR WALKER: It is the Spiliada via Voth v Manildra, your Honour. Lord Goff in Spiliada via Voth v Manildra.
CALLINAN J: I touched on it in - - -
GAUDRON J: "Legitimate" though. It is qualified by the word "legitimate", which I have always found puzzling.
MR WALKER: I do not wish to make a confession, your Honour, but I am not sure whether the word "legitimate adds" anything to the words "juridical advantage" when I either can use the law or not.
CALLINAN J: Well, is it the rule then that it is relevant to look to where the plaintiff is going to have the best chance of winning?
MR WALKER: No.
CALLINAN J: Well, that is what this really suggests to me, and it is a matter that I touched on in Agar - I think I was the only one who dealt with it - but I thought that it was not a factor in the plaintiff's favour, as the Court of Appeal did, that the plaintiff's opportunities outside Australia would be restricted by limitation statute, whereas in New South Wales it was very easy to get an extension. It seemed to me that you should not start with a presumption either way; that if you can look to what the advantages are to the plaintiff, well why can you not legitimately look to what the advantages are to the defendant?
MR WALKER: No reason whatever.
CALLINAN J: Well, that is why I want to know what the foundation for any of this is and I want to know whether you challenge that foundation, because I have difficulty with it, I confess.
KIRBY J: You do, in fact, challenge it in your written submissions, do you not?
MR WALKER: Yes. In terms of the foundation, reference to "juridical advantage" - - -
McHUGH J: It comes from Rockware.
MR WALKER: Yes, which is then incorporated into Lord Goff in Spiliada, which is then adopted, notwithstanding the fundamental difference between the jurisdictions, for the purposes of our law on stays.
GAUDRON J: But only as relevant, not as critical.
MR WALKER: Yes, and that is what I said, as relevant. There is no question it is relevant.
CALLINAN J: Well, why should - - -
MR WALKER: But, your Honour, may I just develop one part to that?
CALLINAN J: Yes.
MR WALKER: Relevant, but never in the sense that it is appropriate to ask yourself, "How can I make it easier for a plaintiff or a defendant to succeed?"
CALLINAN J: Well, is there some preference for a jurisdiction because objectively it is better, because paragraph 45 looks only to advantages to the plaintiff?
MR WALKER: It is, in our submission, an exploded view, which is contained in the second sentence of paragraph 45. Quite apart from what one might think as a New South Wales' practitioner about the availability of discovery, inspection and interrogatories, there is, of course, the issue whether or not it is appropriate - international comity alone would suggest it is not - to say that another country's legal system, not only from the first line of Laurence Sterne's "Sentimental Journey", they order things differently in France, but also that they order them more scurvily in France. Now, that is the first point.
McHUGH J: There is nothing terribly unusual about discovery. In New South Wales, until 1970, on the common law side, personal injury cases, you could not get discovery interrogatories.
MR WALKER: And one can say that a high tide has been reached and is no longer where the water laps in relation to the availability to discovery.
KIRBY J: Yes, but not us let get too carried away there. This sort of case will depend, or may well depend, on what a plaintiff can get from your clients' internal information concerning the defects in this particular car, and that could be absolutely critical.
MR WALKER: No one is suggesting that this is a case that Justice Smart should have considered or the Court of Appeal was entitled to consider - and they do not say it - as one in which Renault is going to conceal relevant facts in its defence of the allegation of defectiveness.
KIRBY J: It is not a matter of concealing it; it is a matter of it not becoming known because the plaintiff cannot get to your internal records.
MR WALKER: Your Honour, they have on already, as revealed in cross-examination, 194 of the appeal book, lines 30 to 39, their technical expert evidence, at least on the liability issue. Leave aside the updating evidence and the medical evidence concerning the plaintiff's physical plight. And it is not suggested - indeed, why would the plaintiff cry stinking fish? It is not suggested that this was a case where they do not have a case in liability.
GLEESON CJ: Mr Walker, I may be under a misapprehension, but I had thought that the context in which references to juridical advantage were made was not a context in which the court was saying, "We ought to give the plaintiff a better go than the plaintiff would get in some other jurisdiction", but it was in a context where a plaintiff was seeking to repel a suggestion that there was an abuse of process or forum-shopping going on.
MR WALKER: That is right.
GLEESON CJ: And the plaintiff was not inviting the court to say, "You should be sympathetic to plaintiffs or you should be sympathetic to defendants"; the plaintiff was referring to juridical advantage to repel a suggestion that there was something abusive about a decision to commence proceedings in a particular forum.
MR WALKER: Yes, your Honour, though that approach - - -
CALLINAN J: That is not the way, I might say, it was put by the President of the Court of Appeal in Agar. It was unmistakably clear there that his Honour thought it relevant that the plaintiff would have an advantage under the limitation statutes, and it seems to me that it is very difficult to read paragraph 45 - - -
MR WALKER: Any differently.
CALLINAN J: - - - in a different way.
MR WALKER: I would, with great respect, adopt - - -
CALLINAN J: And what I am interested in, and I really have not had an answer to it yet - there may not be an answer readily available - but is there any basis, first of all, for looking and making a decision as to the objective quality of a particular judicial system by reference to some other judicial system, or is it legitimate to do at all what was done in paragraph 45?
MR WALKER: To look at the general area, I do not think authority would suggest it is wrong - to look at the general area. To do so in order to draw comparisons of a kind which conduce to advantage to one party or the other is wrong, in our submission - - -
CALLINAN J: Well, that is clearly what paragraph 45 seems to do.
MR WALKER: And it is the worse for that.
McHUGH J: But does it not come from what Lord Diplock said in Rockware v MacShannon that to get a stay, two conditions had to be satisfied. The defendant had to show that there was another forum to whose jurisdiction the plaintiff was amenable, and if - - -
MR WALKER: The remedy in Scotland was going to be either nothing or not much less.
McHUGH J: And if a defendant could satisfy that first positive condition, then he got a stay, unless the plaintiff could show that a stay would deprive him of some legitimate juridical or forensic advantage. And that was a re-working of the St Pierre test.
MR WALKER: And it is not the law now here.
McHUGH J: No, but nevertheless it has still lingered around.
MR WALKER: Yes. If I may return to - - -
CALLINAN J: Well, what is the law here now? That is really what I am asking. What is your submission as to what the law is here, because this case could turn on paragraph 45?
MR WALKER: My submission is that the law is that, subject to an exception I will have to elaborate concerning monstrous regimes, in a clearly inappropriate stay application, the court says to the parties, "As to the mode of litigation in the other country, you take it as it is". Now, the exception has to be in place because Australia has acceded to treaties which would seek us to outlaw discrimination on the grounds, for example, of race, and a monstrous regime that gave to plaintiffs of a particular race less or no rights compared with other races is one which I cannot ask your Honours to find simply should be taken as it is found by the parties in a clearly inappropriate forum application.
GLEESON CJ: But there is a related problem with paragraph 45, is there not, and that is the inability to cross-examine expert witnesses does not exist in a procedural vacuum.
MR WALKER: No, exactly.
GLEESON CJ: It is part and parcel of a system according to which, as I understand it, the judges have a duty to discover the truth.
MR WALKER: Quite, and the trade-off is you do not have to pay cross-examiners, which is a huge trade-off. In our submission, that paragraph shows the Court of Appeal, in our respectful submission, falling back into a complacency about supposed superiority of Anglo-Australian or Anglo-American/Australian procedures, which is not appropriate in a case which is about, among other things, the way in which court systems of different countries relate to each other.
GLEESON CJ: There is an enthusiastic correspondent of one of the newspapers who constantly propounds the view that they do these things far better in civil jurisdictions than we do.
MR WALKER: There may be some myths there as well, your Honour. They may not all be factually sound in the premise - - -
GLEESON CJ: And you and me have come to close quarters on a number of occasions, but the isolation of the inability to cross-examine expert witnesses from the overall procedural context seems very surprising.
MR WALKER: Yes, it is an error. Now, your Honours - - -
CALLINAN J: Mr Walker, I might say that, from personal experience I had in Majorca, that it was quite extensive cross-examination in civil proceedings and it is not right that in all civil proceedings - I cannot speak for France - there is no cross-examination. In some countries in Europe they permit it and it is surprisingly like the form of cross-examination undertaken in Australia.
MR WALKER: Quite, your Honour, yes.
GLEESON CJ: But if this respondent were confronted with a suggestion of something abusive about the process or a suggestion that he was forum shopping, if somebody said to him, "Why have you commenced these proceedings in New South Wales?", he would say, "Because I live here".
MR WALKER: Yes. There is no running from that, your Honour.
GAUDRON J: If and when you come to formulate that exception, one aspect that you may give consideration to - and I do not suggest you do it now - is the competence and compellability of witnesses. That seems to me to be, really, the nub of juridical advantage. If certain witnesses are not competent or compellable - - -
MR WALKER: Yes, if we may take that on notice, your Honour, and I will also supply some references to the material before your Honours about this case where those matters are all, in our submission, carefully crafted by way of conditions imposed and matters volunteered during the application at first instance where, for example, one of the fact-finding methods in a French court, namely, the expert to find or assess facts, that expert will be paid for by us.
KIRBY J: You will not call the tune?
MR WALKER: No, no, the court experts, your Honour. One will find all those references I - - -
KIRBY J: Who is this person? Is he a magistrate or is he a private practitioner who does this?
MR WALKER: I think the best analogy, your Honour, is an assessor. One will find those references in paragraph 19 of our written submissions in reply.
GLEESON CJ: But I think we may still need to pursue this concept of juridical advantage a little further. Apart from a situation where one is seeking to repel a suggestion that forum shopping is going on or there is some form of abuse of process involved, is there also underlying these references to juridical advantage an idea that the courts are open to everybody, they cannot put up a sign saying "No business today" and the statutes and the rules that determine the circumstances in which an individual litigant may invoke the jurisdiction of the court produce the consequence that if a jurisdiction is regularly invoked the plaintiff is entitled to have whatever advantages come from that jurisdiction and is not to be deprived of those advantages?
MR WALKER: In those absolute terms, no, that is not the case because there is jurisdiction of the forum non conveniens kind where this Court has twice, not only in Voth but also in Henry, taken pains to warn against an excessive or prima facie inclination of what might be called a vested rights notion that because you have regularly invoked jurisdiction, you should on that account, prima facie, stay there. Now, that is not to deprecate the importance of the regular invocation of jurisdiction. Trivially, one can observe that without it there is nothing anyhow, but substantively one can observe everything that has fallen from your Honour the Chief Justice and we adopt that, with respect.
GLEESON CJ: What would be an example of an illegitimate juridical advantage?
MR WALKER: Anything which meant that by, for example, the playing of games, money, time, worry could be multiplied unfairly to one party. That would be illegitimate, one imagines, in any system. How one identifies when it is illegitimate to ask for something you are entitled to ask for, such as depositions or interrogatories, I do not know, with respect.
CALLINAN J: Mr Walker, in New South Wales in view of Part 10 -and I am not familiar with all the rules, as you would be - but it is very, very easy to invoke jurisdiction regularly. I mean, in substance, really all you need to do is live there or carry on business there and you are bound to be suffering some damage there.
MR WALKER: Yes. That is particularly the case with people who are injured and unfortunately continue to suffer from it
CALLINAN J: Or corporations that suffer damage in New South Wales. They are caught by that, too, or they can take advantage of that, too, can they not?
MR WALKER: Yes, but the law - - -
CALLINAN J: So if you went to reside in New South Wales or went to carry on business there from somewhere else and continued to suffer damage there, then, arguably, you would be able to invoke the jurisdiction of the Supreme Court there; is that right?
MR WALKER: Yes. It may be stronger than arguably.
CALLINAN J: Yes. So that really the regular invocation of jurisdiction in New South Wales is - - -
MR WALKER: Is a minimal standard, yes.
CALLINAN J: Yes.
GLEESON CJ: If Mr Margo's client had been driving a Ford, rather than a Renault, which had been manufactured and designed in the United States, it may be that according to the law of the United States he would be entitled to exemplary damages.
MR WALKER: Then questions of location of the wrong which lurk in this case, I think not materially, but which pervade the whole area of discourse, may become critical, your Honour.
GLEESON CJ: I want to get back to your rule about the governing law. If he sued in New South Wales saying, "I live here. I have invoked the jurisdiction of the Supreme Court", and he had an allegation a little firmer than paragraph 16 of his statement of claim that said, "The governing law is the law of a particular state of the United States and according to the law of the particular state of the United States I am entitled to exemplary damages and I claim exemplary damages", according to your rule, how would our law deal with that?
MR WALKER: Regardless of where the case was to be argued - pick California or New South Wales - - -
GLEESON CJ: I am assuming in New South Wales.
MR WALKER: But, regardless of where it was to be argued, what we submit about the choice of law rule is that the same result as to exemplary damages would follow. That is the prime virtue of lex loci delicti.
GLEESON CJ: So the New South Wales court would consider the claim for exemplary damages according to the law of California, there being no public policy of New South Wales against exemplary damages in that kind of case.
MR WALKER: If there is no statute that says, "The Supreme Court shall not in any case whatsoever award exemplary damages or remedy in that nature", if there was a law of that kind, which is exactly how questions of policy should be determined by the Parliament weighing it up and doing it, from time to time, unless there was a statute of that kind, then the common law choice of law rule would have the content as well as the existence of the right awarded according to lex loci delicti.
Of course, there are a number of wrongs which can be committed abroad, as well as here, which are regulated in their own fashion, the Trade Practices Act, both anti-competitive conduct and consumer protection, for example, where for various reasons and varying reasons, from time to time, parliaments, not only the State Parliament but the Commonwealth Parliament, enact laws which override what would otherwise be the common law choice of law rules.
Now, in our submission, for all the reasons that Sir Robert Phillimore explains in The "Halley" that is how it should be, that British law to advance British policies in British waters should stay there and should not govern in the Flushing Roads. The converse, that is, the rejection of that by the Privy Council, in one sense does not engage with Sir Robert's reasons and in another sense simply asserts it should not or, I should say, that British law should extend to the Flushing Roads.
Now, that is paragraph [92] of Pfeiffer and, in our submission, that is why Sir Robert was correct, with great respect, in a case that he described as a novelty and as a case that Sir William Holdsworth describes as a novelty and at the end of his judgment he expresses himself unhappy at being the first but happy that there would be a Court of Appeal to correct him. In our respectful submission, historically one can see that the so-called correction was not itself a proper enunciation of the common law.
Your Honours, could I seek to grapple once more with the question about legitimate juridical advantage. One element that we should insert is raised by some authorities cited against us in reply by my learned friends. I stress these are authorities from England and Wales. They are not authorities, therefore, which can necessarily be applied straightforwardly.
GUMMOW J: Can one determine this juridical advantage question in a broader sense, that is to say by looking not just at plaintiffs but at defendants, when you do not know what the defendant's defences are going to be?
MR WALKER: No, your Honour, and equality and impartiality suggests that therefore the exercise about which Justice Callinan has asked me questions is one which is fraught with danger. There is, in our submission - - -
GUMMOW J: Because in a way you would have to be binding the defendant in advance, as it were.
MR WALKER: Yes. There is no place for a thumb in these scales at all.
CALLINAN J: In paragraph 131 of Agar, I said that I thought this question should be approached without any predisposition.
MR WALKER: And, with respect, that is in principle what the law should be.
CALLINAN J: No other members of the Court dealt with it.
MR WALKER: There are a number of issues that are raised against us and it may be thought they are raised ad misericordiam against us - perhaps as a matter of advocacy, none the worse for that. But they include access to legal assistance. There is evidence, all of which is referred to in the written submissions exchanged on both sides, suggesting that matters are not as stark as perhaps the height of the written rhetoric against us on this point suggests.
Leaving aside the detail of that for the time being, as a matter of principle, these questions of the peculiar plight - always, it would appear, of a plaintiff - and of how that should be reflected in the inappropriate or clearly inappropriate forum question, and then, critically, in the discretionary decision to stay or not which follows after that determination, these matters have been looked at in, amongst other cases, those with which your Honours would be familiar more recently with respect to the asbestos disaster, and this is the disaster that, from southern Africa, found itself being litigated in London.
Now, the two cases that have been cited against us, which, in our respectful submission, may provide some assistance in considering what role, if any, and if so, how you should take into account questions of legal aid, legal representation, procedural advantages - what one might think as elements of procedure and practice conducing to a greater or lesser advantage for one or other party. Your Honours will find in Connelly v RTZ [1997] UKHL 30; [1998] AC 854 and Lubbe v Cape, which if your Honours will permit, we will cite in the Weekly Law Reports version - I think copies have been provided of that version - [2000] UKHL 41; [2000] 1 WLR 1545.
I will not dwell long on them. We cite them, somewhat gingerly, in the same way as Lord Goff's speech in Spiliada is still regarded, by reason of Voth and Henry, as providing a useful vade-mecum for the matters to be considered in a stay application. We draw to attention, therefore, merely for persuasive force, such as it is, from the speech of Lord Goff himself in Connelly, first of all, at page 872F, where one finds a reference to what is called:
the impact of specific advantages which the plaintiff might derive from the English jurisdiction, if a stay was not granted, viz, damages on a higher scale; a more complete system of discovery; a power to award interest; a more generous limitation period. From the discussion which followed, a general principle may be derived, which is that, if a clearly more appropriate forum overseas has been identified, generally speaking the plaintiff will have to take that forum as he finds it, even if it is in certain respects less advantageous to him than the English forum. He may, for example, have to accept lower damages, or do without the more generous English system of discovery. The same must apply to the system of court procedure, including the rules of evidence, applicable in the foreign forum. This may display many features which distinguish it from ours, and which English lawyers might think render it less advantageous to the plaintiff. Such a result may in particular be true of those jurisdictions, of which there are many in the world, which are smaller than our own, and are in consequence lacking in financial resources compared with our own. But that is not of itself enough to refuse a stay.
And the reasoning would be quite beside the point and, indeed, misguided, if it were thought that that fed into the determination of "clearly inappropriate". This is at the discretionary stage.
CALLINAN J: Mr Walker, if one is entitled to take those matters into account, why should not one take into account the readily availability and desirability of insuring if one is travelling overseas and to jurisdictions where there might be lower levels of damages?
MR WALKER: I think your Honour has seen our citation of an Irish scholar to the effect that the certainty of lex locti delicti enables the certainty of insurance allowance.
GLEESON CJ: Apart from a context where you might be resisting an argument that you are abusing process or forum shopping, why would damages on a higher scale count in favour of a plaintiff more than damages on a lower scale would count in favour of a defendant?
MR WALKER: There is no reason whatever, unless one is to treat justice as a synonym for awarded compensation, and one would reject that at the outset. Your Honours, on the next page of Lord Goff's speech at page 873 - I will not read it - there is a passage, an important passage, concerning a matter which is raised against us in affecting terms, from letter E onwards. Can I turn, your Honours, to the dissenting speech of Lord Hoffmann because, in our submission, there are matters there set out which this Court would find both persuasive and helpful in relation to this matter of so-called juridical advantage.
At the foot of page 875, starting at letter H, his Lordship refers to the terrible nature of the claim of the plight which brought people thousands of miles to litigate - these were the plaintiffs who had travelled, not the defendants who were going to have to travel. The reasons, at the top of page 876, include this passage:
It means that the action of a rich plaintiff will be stayed while the action of a poor plaintiff in respect of precisely the same transaction will not. It means that the more speculative and difficult the action, the more likely it is to be allowed to proceed in this country with the support of public funds. Such distinctions will do the law no credit.
His Lordship then cites Justice Sopinka from Amchem:
"The weight to be given to juridical advantage is very much a function of the parties' connection to the particular jurisdiction in question. If a party seeks out a jurisdiction simply to gain a juridical advantage rather than by reason of a real and substantial connection of the case of the jurisdiction, that is ordinarily condemned as `forum shopping' - - -
GLEESON CJ: That was the point endeavouring to - - -
MR WALKER: - - - as your Honour the Chief Justice has been pointing out -
On the other hand, a party whose case has a real and substantial connection with a forum has a legitimate claim to the advantages that that forum provides. The legitimacy of this claim is based on a reasonable expectation that in the event of litigation arising out of the transaction in question, those advantages will be available."
Now, in advance, in terms of the use of a car designed in France, in New Caledonia, reasonable expectations no more include New South Wales than they would include Turkey, in our respectful submission.
He goes on about the affecting plight of those people from Namibia:
In my view, the plaintiff while employed in Namibia had no legitimate expectation that litigation arising out of the circumstances of his employment would take place in England.
Now, ironically, bearing in mind how we gather these decisions are to be deployed against us in this case, those were cases where the plaintiff travelled and did not have that which this plaintiff clearly has, namely, the solid, simple connection of residence in this jurisdiction.
CALLINAN J: Lord Hoffmann's view on this is no different from the view of Lord Goff, is it?
MR WALKER: No, a dissenting speech, but those sentiments are in the stream upon which we draw, with respect.
Now, the reference in Lubbe v Cape, if I can take your Honours directly to the passage in Lord Bingham's speech, page 1554 [2000] 1 WLR, just below the letter G on that page, they are talking about the second stage:
The plaintiff will not ordinarily discharge the burden lying upon him by showing that he will enjoy procedural advantages, or a higher scale of damages or more generous rules of limitation if he sues in England; generally speaking, the plaintiff must take a foreign forum as he finds it, even if it is in some respects less advantageous to him than the English forum.
McHUGH J: But can I put this to you, see, this looks at it from the wrong way, having regard to our test.
MR WALKER: That is why I introduced it by saying it is only to the extent that this is cognate with the considerations in the Spiliada which have been incorporated into our law as useful guides for the second stage, the discretionary stage - - -
McHUGH J: But these matters and the matters that are referred to in Connelly may well be relevant matters under our test, for example, supposing the argument was whether New Caledonia was a clearly inappropriate forum, why would it not be a relevant factor under that test that you could not get discovery, that you could not subpoena people, that you could not administer interrogatories, that the plaintiff could not get legal aid.
MR WALKER: But Lord Bingham points up that if it can be shown you cannot get substantial justice - and that would certainly appear if being black you could not plead or being Jewish you could not recover, for example, or that there was some exotic form whereby there could be, as it were, a minister's certificate to bring a case to an end if you sued the government - then that would be brought in as Lord Bingham says it should be.
McHUGH J: I am not sure. You see, the matters that are referred to at paragraph 45, page 344, do not seem to me to have much to do with the question whether or not New South Wales is a clearly inappropriate forum.
MR WALKER: They are referred to in the re-exercise of discretionary part.
McHUGH J: I know they are, and that is why I referred to it. That is because it is a very different test, and I am not sure that the primary judge ever applied the correct test.
MR WALKER: Yes, he did, with respect. For example, he cites, among other things, a very important passage from this Court's decision in Voth v Manildra Flour Mills. That is important because that did fasten upon the nexus of residency, which we concede and concede, and says of that, for example - that is 171 CLR 571 - and the trial judge takes that into account - appeal book 222, line 36 - but going back to the report itself, Voth v Manildra Flour Mills:
On the other hand, the plaintiffs in the action are residents of New South Wales -
and may we say, on the other hand, is language redolent of the comparison which is unavoidable -
and may therefore reasonably point to the advantages to them in practical terms of bringing an action in the local courts -
which are, axiomatic, one would think.
the transactions concerned have some connexion with New South Wales -
not this case -
and with Australian revenue laws;
not this case -
and, to a large extent at least, the damage was suffered in New South Wales.
Or by dint of residency continuing damage is suffered here.
However, these last considerations are natural consequences and incidents of residence in a particular jurisdiction and, as such, are merely different aspects of the right of any plaintiff to bring an action in the courts of the jurisdiction wherein he or she resides.
And we interpolate, and that would change depending upon how one moved around the country, or moved internationally.
That is a legitimate personal or juridical advantage which is acknowledge by the prima facie right of a plaintiff to insist upon the exercise of a jurisdiction which he or she has regularly invoked, but beyond that it has little weight.
GLEESON CJ: It is the opening words of that paragraph that really support your argument. It is put as though it is because the plaintiffs are resident of New South Wales that they may reasonably point to advantages.
MR WALKER: That is right, but because that is inherent in - indeed one would have said "goes without saying" from the fact of residency, it is of little weight - - -
GLEESON CJ: If they were forum shopping, they could not point to advantages to justify the shopping.
MR WALKER: That is right, your Honour. Now, the passage upon which we rely, by way of summation because it comes at the end of a painstaking analysis of the material, the passage upon which we rely in answer to your Honour Justice McHugh, we suggested the trial judge did not appear to apply the proper principle, is to be found at page 222 of the appeal book, volume 1, from line 21 to line 55 and, in our submission, without reading it, we may nonetheless say that that is not a passage which can be read so as to reveal that the judge was unaware of the proper principle or unaware of the way in which matters to do with residence, for example, may be taken into account. That was a classic - - -
McHUGH J: I hear what you say, but your submission at the moment is not persuasive to me at all.
MR WALKER: Your Honour, without repetition, I think I have nothing to add in support of it. The decision on that point was then discretionary, as Lord Bingham, Lord Goff, points out at the second stage.
McHUGH J: What do you say about the passage at 556, 557, in Voth, where distinguishing between the clearly inappropriate test and the traditional test that Justice Brennan expressed in Oceanic, the joint judgment said:
The former test -
that is the clearly inappropriate test -
unlike the latter, recognizes that in some situations the continuation of an action in the selected forum, though not amounting to vexation or oppression or an abuse of process in the strict sense, will amount to an injustice to the defendant when the bringing of the action in some other available and competent forum will not occasion an injustice to the plaintiff.
MR WALKER: Your Honour asked me what I - - -
McHUGH J: Yes, but is that not what the test is all about? That it is clearly inappropriate when to bring the action in New South Wales amounts to an injustice to the defendant and will not occasion any injustice to the plaintiff. Is that not what that test is really all about?
MR WALKER: One cannot step reading there. The joint judgment goes on, on page 558, to give content in a way then illustrated by the result in Voth and the approach and result in Henry v Henry, in a way which, in our submission, is critical to an understanding of why we defend Justice Smart's approach. In our submission, what he did was orthodox and what this Court required, and that paragraph starting:
The "clearly inappropriate forum" test is similar" -
is one which has to be read, in our submission, to understand what that phrase means in our law.
GAUDRON J: Is there anywhere where Justice Smart uses the expression "clearly inappropriate forum"? He begins by saying at page 211:
The issue is whether this Court is an inappropriate forum - - -
MR WALKER: That is because under Part 10 rule 6A that is what the rule says.
GUMMOW J: I know. That is why I wanted to see the text of the rule.
GAUDRON J: Well, that does raise a question. If that is what the Rules say, we are just wasting our time looking at Voth and Oceanic.
GUMMOW J: Exactly. You have started with the rule. We went through all this in Agar, the football case.
GLEESON CJ: I thought the Rules were amended after Voth.
GUMMOW J: So did I.
CALLINAN J: And, Mr Walker, at paragraph 27 at page 339 the Court of Appeal refers to the rule, but then goes on to say that obviously Justice Smart applied the common law test. Perhaps he should not have been. Perhaps he should have been construing the rule and applying it.
KIRBY J: Modern lawyers hate legislative rules. They like the common law.
GLEESON CJ: Mr Walker, it should not be difficult over the lunch hour to turn up the Rules of the Supreme Court of New South Wales in the form relevant to this case and to let us all have copies of them.
MR WALKER: No, it is not difficult, and your Honours recollection is correct. During the Voth proceedings, there was an amendment.
GLEESON CJ: Yes, I was on the Rule Committee.
GAUDRON J: If the Rules say "inappropriate", they say "inappropriate". Why do we import "clearly" into them?
MR WALKER: The Court of Appeal suggested there was no difference, is the answer to your Honour's question.
GAUDRON J: Well, that may be what the Court of Appeal said, but just because the Court of Appeal says it does not mean that they can write in words that are not there.
MR WALKER: No, I do not support that, your Honour, of writing words in that are not there.
KIRBY J: How can it have no effect?
GAUDRON J: If it says "inappropriate", it means one has an issue that means "inappropriate" and not the "clearly inappropriate" test. It may be a similar test, but there is no reason to think it is exactly the same.
HAYNE J: In particular, the distinction drawn in the joint judgment in Voth, at 558 at about line 3 of the paragraph first commencing on that page, may encapsulate the difference between the two tests.
MR WALKER: Yes, we would so submit, your Honour. Could I draw to your Honour's attention the error, if it be - well, not if it be error? Could I draw to your Honour's attention that point in the Court of Appeal judgment - appeal book, volume 2, page 339, paragraph 27, line 40. This matter was referred to in paragraph 1 of our written submissions in-chief, footnote 3 in particular. What Justice Stein says there is:
I am satisfied that Smart J was aware of the impact of the adjective `clearly', and it has been held that the rule does not relax the common law test. See for example -
two decisions, both first instance, in April 93 and October 94.
GUMMOW J: Where are you reading from, Mr Walker?
MR WALKER: Page 339 of volume 2 of the appeal book, your Honour, paragraph 27 of Justice Stein's reasons, lines 40 to 46.
GUMMOW J: Thank you. Do we have those decisions, in W F Motors and Heath?
MR WALKER: No. But we will make sure your Honours - if your Honours wish to see them - - -
GLEESON CJ: I think we would like to see them, thank you.
MR WALKER: Then they will be obtained. We referred to this question in paragraph 1 of our written submission where we described the issue as one depending upon, primarily, the rule, which uses the expression "inappropriate", footnote 2, or if there be a difference, footnote 3, a reference to what was said in Agar v Hyde, at paragraph 55. In Agar v Hyde at paragraph 55 - we are using [2000] HCA 41; 74 ALJR 1219 -your Honours said:
Whether the Rules prescribe a different test for determining questions of inappropriate forum from that developed at common law -
citation Voth:
is a question which we need not stay to consider.
GAUDRON J: But we may need to in this case.
MR WALKER: Yes. The rule in question was Part 10 rule 6A, footnote - - -
HAYNE J: Not a rule mentioned in the notice of motion. The notice of motion that founds this whole set of proceedings is that at page 11 of the appeal book, is it not, which - - -
MR WALKER: The jurisdiction one your Honour is referring to?
HAYNE J: Well, two prayers in that notice of motion and both, it seems, are said to depend on Part 11 rule 8.
MR WALKER: It appears that there was a - I do not know what to call it, an amendment.....At page 192 of volume 1 of the appeal book, opening the application Mr Conti, who then led for my clients, is recorded at page 23 as going to the notice of motion and referring, as your Honour Justice Hayne has just noted, to the explicit tagging of Part 11 rule 8 and then referring to what is described there as paragraph H, namely, a prayer to:
"Decline in its discretion to exercise its jurisdiction in the proceedings".
Then, disarmingly, at line 40 saying:
The other rule to which we would refer you formally -
informally may have been a fairer description -
is part 10 rule 6A.
The argument then fell out, accordingly. Is that a convenient time, your Honour?
GLEESON CJ: Yes. How long do you expect to require, Mr Walker?
MR WALKER: I think there is somewhat more than an hour left, your Honour.
GLEESON CJ: We will adjourn until 2.15 pm.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
GLEESON CJ: Yes, Mr Walker.
MR WALKER: Just before the adjournment I took your Honours to how Mr Conti opened the application. Could I take your Honours to the reflection of that in Justice Smart's reasons, volume 1 of the appeal book, page 213, the first paragraph on that page and, in particular, from lines 9 onwards. Your Honours will there see that there is a reference to the basis of the stay being sought in the alternative fashion. It is echoed in paragraph 1 of our written submissions in-chief in this Court.
GLEESON CJ: How did you get on with those rules?
MR WALKER: We have them in the respondent's bundle of material referred to in the respondent's submissions in this Court, at item 10, page 10, and then within that your Honours will find at page 13 the particular rule, Part 10, rule 6A. Its history, as your Honour the Chief Justice's memory has already informed the Court, can be seen, for example, in Voth 15 NSWLR 531, in the Court of Appeal in your Honour the Chief Justice's reasons, where your Honour refers to the amendment having been inserted in the terms you find it in the respondent's bundle in June 1988.
GLEESON CJ: And was there no subsequent amendment?
MR WALKER: There has not been any amendment that we can trace and, in particular, nothing relating to the key phrase "inappropriate".
KIRBY J: Yes, but would one not read the passage on 213 of Justice Smart's reasons as indicating that through it all began as an application to set aside under Part 11 rule 8 of the Rules, it then moved on and became an application, presumably at common law, to stay the proceedings invoking the common law jurisdiction.
MR WALKER: That is one of the possibilities because of the reference to "clearly inappropriate".
GLEESON CJ: Now, Mr Walker, I just want to interrupt you to contradict something you have just said, because we had better get this straight. On page 13 of this book, in the notes under the paragraph [10.6A] point (2)and under the side note "Inappropriate forum", it says:
Although this rule was not in effect in its present form when Voth v Manilda . . . was decided - - -
MR WALKER: Yes. If that be a reference by the editor to the date of decision in the High Court, then it is wrong. What it is a reference to is the matters that your Honour referred to in the Court of Appeal in Voth, namely that that rule was not in effect when Justice Clarke decided Voth at first instance. It is simply a wrong editor's note and one finds - - -
GLEESON CJ: That does not make life easy, does it?
MR WALKER: No, your Honour. One finds that history set out, and what I assume is the source of that error from what your Honour observed, at 15 NSWLR 531E, and I quote:
was not in force at the time of the present application.
That is something which in 1989 your Honour was saying about something which was at first instance. I am grateful to my friend, in Voth itself, 171 CLR, the rule is found referred to at page 543 in the submissions and page 589 in the judgment.
The first instance judgments referred to in the practice to which your Honour the Chief Justice draws attention, including those which are contained in paragraph 27 of Justice Stein' reasons that we were asked about before the break, WFM Motors Pty Ltd v Maydwell, CE Heath v Barden, have been supplied to the Court and are with the associate. Heath is an extremely long decision and we have taken the liberty in the time permitted to copy to your Honours only that part which concerns this issue.
KIRBY J: Now, what is the answer to the question I asked you about 213 in Justice Smart's reasons, because it does seem to indicate that it started as an application of the rule, and then that was abandoned, and it became an application for a stay?
MR WALKER: There was no abandonment of the jurisdiction matter, it tended to fade because the quasi - - -
KIRBY J: A different vehicle was used apparently.
MR WALKER: - - - quasi contract claim was conceded not within jurisdiction. As your Honours saw from the opening by Mr Conti before Justice Smart, Part 10 rule 6A was called in aid formally, as Mr Conti put it. That is caught, in answer to your Honour Justice Kirby, by the reference to an "inappropriate forum", at line 14 on page 213, and then as to "clearly inappropriate" there are two possibilities, and they may both be true. The first is what your Honour puts, that there was a common law parallel application.
HAYNE J: I do not understand that. I just do not understand what is meant by "common law parallel application", where there are rules of court that are engaged.
MR WALKER: Well, I am not suggesting - may I back track. That is what it appears, as a possibility, bearing in mind that what was invoked before the Court under the Rules included not only by this spoken application of Part 10 rule 6A, but also a reference to Part 11 rule 8(1)(h), to which Mr Conti made reference in the passage I read. That is the one where the Court is empowered simply, and I quote to "decline in its discretion to exercise its jurisdiction in the proceedings". Your Honours will find that at page 15 of the bundle of documents from the respondent in the Rules.
HAYNE J: In the appeal papers, page 11, the third order that is sought is "Such further or other orders as to the Court seems appropriate", which is invoking the general jurisdiction of the Supreme Court.
MR WALKER: Your Honours, I do not know. It is not possible to find from the material because one never finds, in plain terms, this prayer invoked the common law jurisprudence. What is clear from the course of argument, including in the Court of Appeal, is that what your Honour Justice Kirby has raised seems to have been the way in which, at least in part, the parties presented the issue in the two courts below.
CALLINAN J: But, Mr Walker, that is the language anyway of rule 11.8(1)(j):
Grant such other relief as it thinks appropriate.
MR WALKER: Yes, your Honour. So, Part 11 rule 8 was in terms invoked in such a way as - in answer to your Honour Justice Hayne - it is arguable.
HAYNE J: Again, I do not understand it. Rule 11.8(h):
decline in its discretion to exercise its jurisdiction -
is at least linked to 10.6A.
MR WALKER: Part of the same rules to what might be called generally the same end.
HAYNE J: But 10.6A expressly adverts to Part 11 rule 8.
MR WALKER: Yes, your Honour.
HAYNE J: Do you submit that despite the terms of 10.6A(2)(b) that some other narrower test than that posited by 10.6A(2)(b) could relevantly have any application?
MR WALKER: No, understanding "narrow" as meaning more stringent for the applicant for a stay. No, your Honour. Bearing in mind, however, there were the decisions referred to by Justice Stein which said to the contrary that Part 10 - - -
HAYNE J: But in large part this application has to be understood by reference to rules of court.
MR WALKER: Yes.
HAYNE J: It does not just spring full armed from the brow.
MR WALKER: No, it does not and what I have been trying to suggest by way of reconstruction is that, first, Part 10 rule 6A was the main vehicle, notwithstanding it was the only one not referred to in the motion - one sees the opening for that; two, that is reflected by the language of Justice Smart at 213, line 11; three, that clearly inappropriate, the alternative language, was justified on a number of possibilities, the first of which being this case law which supposedly said that although the word "clearly" had been taken out, one would have thought, with great respect, deliberately, it was to be read back in.
GUMMOW J: Where do we see the earlier text which has the word "clearly" in it?
MR WALKER: It was a rule designed to meet Oceanic, your Honour.
GAUDRON J: The expression "clearly inappropriate" had come about in Oceanic in the judgment of Justice Deane.
MR WALKER: In Oceanic, yes, and it is not to be thought that the rule-makers were not aware of the adverb "clearly".
GAUDRON J: That had been decided before the rule was inserted.
MR WALKER: Yes, your Honour. This is a response to Oceanic. It is a response - to pick up something Justice Hayne has said - which seems unmistakable in its intent, with great respect to those who thought otherwise. It does not say "clearly inappropriate".
KIRBY J: Well, I wonder if you are right there, because if you take out the "clearly" and you substitute "appropriate", you are getting rather close to the Spiliada test.
HAYNE J: Just so, and the rule-makers have made their choice.
MR WALKER: And that, of course, is reminiscent of what was said in Voth itself, later, about the similarity in many cases of the two tests, in any event.
KIRBY J: I am not sure about that. I was always, myself, in favour of the Spiliada test until this Court spoke in Oceanic, but if the rule-makers, having gone back to the more general test, have returned us, in a sense, to the mainstream of English authority, then so be it, in New South Wales.
MR WALKER: And we embrace that, your Honour. It was - - -
McHUGH J: But that is not right, is it? They have not gone back to Spiliada. They still use the word "inappropriate" so - - -
MR WALKER: That is right. They have gone to a test which is not to be found exactly in any case law. What they have done, in our respectful submission, by removing the word "clearly", is to remove what might be called not merely a matter of emphasis, but a matter of stringency, in terms of the fineness of balance which may suffice to justify the exercise of the discretion to order a stay.
McHUGH J: But how do you go about exercising the discretion? Can I put this to you for your submissions. Would the court find it was only an inappropriate forum if the court cannot do justice according to law between the parties by reason of the applicable law, the evidence, the Rules of Evidence and Procedure, or the expense and inconvenience of - - -
MR WALKER: In the overseas jurisdiction?
McHUGH J: In the overseas jurisdiction. Would you quarrel with that formulation?
MR WALKER: The last part, yes, that is, the reference to money. The first part of the first part, no, that is, the test that one cannot come at justice overseas, is an appropriately drastic state of affairs to require. The references to procedures ought to be, in our submission, approached with caution because of the salutary and proper notion that one takes the overseas jurisdiction in which one engaged in the conduct, for example, with what it supplies for the doing of justice.
McHUGH J: But, you see, the Spiliada is very much a discretionary test and I am not sure that either under Voth or under this rule it is a discretionary test or, in all events, if it is, you cannot get a stay unless you first establish as a fact that it is an inappropriate forum.
MR WALKER: It would appear there is a two-stage exercise. Hence the reference to comparative procedures in Lord Goff in Connelly referring and using the exact expression "second stage"; "they were second-stage considerations."
GLEESON CJ: I have not read these particular cases that have construed Part 10 rule 6A, but just making a guess at the process of reasoning, do they proceed on the basis that what appears in paragraph (b) is not intended to be a statement of the discretionary criterion, but a description of the general ground upon which the discretion may be exercised, substituting for the Latin words "forum non conveniens" the English words "an inappropriate forum"?
MR WALKER: Yes, and one further, substituting as well those words as being - that is, the principles and criteria relevant to applying those words as being those stated in Voth which - - -
GLEESON CJ: But am I right in saying that they proceed on the basis that the word "may" in rule 6A(2) imports a discretion which is exercised according to principles of the kind enunciated by this Court in Voth?
MR WALKER: Yes.
GLEESON CJ: And that the words "an inappropriate forum" simply describe the ground on which you come to exercise the discretion, but they do not, as it were, confine or define the limits of the discretion.
MR WALKER: That would be to attribute more precision to those reasons than they have, your Honour.
GLEESON CJ: Well, is there any way we can get our hands on James Hardie v Grigor?
MR WALKER: Yes, it is - - -
GLEESON CJ: So far as I can see from these notes, it is the most recent case before this one on this subject.
MR WALKER: It is reported, your Honours. We will get that.
GLEESON CJ: That looks to be the last time the Court of Appeal considered these Rules before this case and that is June 1998.
MR WALKER: (1998) 45 NSWLR 20 is the reference to the report.
GLEESON CJ: Thank you.
MR WALKER: I do not think, except perhaps by implication, there is discussion of the point your Honour has raised though.
GLEESON CJ: Well, in these notes it is cited as authority for the proposition that the test to be applied is whether the court is a "clearly inappropriate forum".
MR WALKER: There is certainly reference, for example, at page 28F to the fact that - this is just a matter of legal history - Australia had made a choice of "clearly inappropriate" as opposed to "clearly more appropriate". It is what is recorded - and this explains why there is nothing in the judgment - what is recorded is that there was no submission made in Grigor that the introduction of Part 10 rule 6A(2)(b) made any difference. I should say it is also said in those reasons that that was the introduction after Voth, Voth printed as if that means Voth in the High Court, but it is not, it is after Voth as the first instance application that it was introduced.
GLEESON CJ: But it was after Oceanic.
MR WALKER: Post-Oceanic, and in response to that, post-Voth, first instance, therefore, not dealt with in Voth.
GUMMOW J: Now, the stay application in Oceanic does not seem to have been brought in reliance upon any particular rule.
MR WALKER: No. I think that it is a - it is a ticket, your Honour, a contract.
GUMMOW J: In Oceanic [1988] HCA 32; 165 CLR 197 Justice Brennan probably explains it most clearly at pages 220 to 221.
MR WALKER: Yes, and if I could draw attention, the facts on 198 show that there was a clause, clause 13, concerning forum. The jurisdictional head was damage suffered in the State. That is a familiar one which comes from residency, no doubt, in many cases. Clause 13 is excerpted at the foot of 222 of Oceanic and at the foot of 223 the grounds, going to the substantial question whether it should:
be stayed or dismissed on the ground either that the plaintiff is bound by an agreement -
clause 13 -
or that, having regard to all the circumstances of the case, Greece is the appropriate forum -
Then the contract matter is referred to on the succeeding pages, and on page 231 commences the discussion of the second ground, namely, "forum non conveniens", as it is there labelled.
GUMMOW J: Yes, thank you.
MR WALKER: Your Honours, could I correct something I told the Chief Justice? Part 10 rule 6A was introduced 15 days before judgment in Oceanic.
GLEESON CJ: Before judgment in the High Court in Oceanic.
CALLINAN J: Mr Walker, if the rule was amended before the appeal was decided in Voth, is this an interlocutory matter and - - -
MR WALKER: The rule - - -
CALLINAN J: I thought you told us that - - -
MR WALKER: Yes, your Honour is right.
CALLINAN J: I just do not understand why, if it were an interlocutory matter - - -
MR WALKER: As not altering substantive rights, but merely procedures.
CALLINAN J: Yes, that the rule as amended, perhaps, had the Court been referred to it, would have applied.
MR WALKER: Certainly, the Court of Appeal in Voth proceeded on the basis that the new form, or the new rule, Part 10 rule 6A, did not apply, because the application had been decided before the rule came into effect. That does not answer your Honour's question, but that certainly - - -
CALLINAN J: Well, presumably, nobody adverted to it. That is the more likely scenario, I suspect.
MR WALKER: Indeed, once again, the very next passage, Voth v Manildra (1989) 15 NSWLR 513 at 531, about letter F, suggests that nobody took a point about the difference between tests. That is not quite the same as not taking a point about procedural changes being retrospective, but it may explain why that point that your Honour has raised did not arise.
CALLINAN J: And in any event, perhaps, the effect of the new rule might be viewed differently after Pfeiffer, arguably.
MR WALKER: Yes. Your Honours, could I - - -
GUMMOW J: But all this supports, perhaps, what the Chief Justice was putting to you, that that is a plain English expression in the new rule, "inappropriate forum", to get rid of the Latin.
MR WALKER: Yes.
GUMMOW J: And its content is gathered elsewhere from case law.
MR WALKER: Yes.
GUMMOW J: So that one has not displaced the inherent jurisdiction; one has a rule there that you can look at.
MR WALKER: One has to ask in what fashion is it to be turned to account in what is (a) a judicial discretion; (b) as a procedural matter; (c) enacted against case law? But that is not to say that case law not on those words can somehow govern so as to deprive those words of what would otherwise be their ordinary meaning. But we do not, with respect, dissent from the suggestion that your Honour has raised.
CALLINAN J: Why would there be any need to invoke the inherent jurisdiction at all, if the application fell within the ordinary language of the rule?
MR WALKER: There would not be.
GUMMOW J: That is the idea that I think Justice McClelland had in framing those rules, that the practitioners would be able to look at the Rules and get on with it - - -
MR WALKER: Yes. That was the idea.
GUMMOW J: - - - rather than puzzle deeply about the inherent jurisdiction.
MR WALKER: Yes.
CALLINAN J: Well, that being so, why do we have to look at the earlier case law at all?
MR WALKER: Your Honours do not in this case.
GLEESON CJ: Except that I notice that by 1998 they had reached a stage in New South Wales where Chief Justice Spigelman was saying at page 33 in James Hardie:
Both parties of course accepted that the relevant test to be applied was that identified in Voth v Manildra Flour Mills, namely, was New South Wales a "clearly inappropriate forum".
MR WALKER: Yes.
GAUDRON J: They might not accept it after what was said in Agar.
MR WALKER: No.
CALLINAN J: Your submission is that the passage that the Chief Justice just put to you does not represent the law.
MR WALKER: That is right.
KIRBY J: The only problem is what Justice Smart said in that passage, where he seems to have started with the rule - and, in fact, throughout his judgment he uses the language of the rule - but then he goes into the stay power. Is the stay power - - -
MR WALKER: The rule is the stay power, your Honour.
GLEESON CJ: But what is your answer to the proposition that the word "may" imports the learning about the principles according to which this discretion is exercised?
MR WALKER: It does minus what it clearly adds.
GLEESON CJ: But why?
MR WALKER: Why not include "clearly" because it - - -
GLEESON CJ: No. First of all, what was the language of the rule that was being applied in Voth?
GUMMOW J: There was not one, was there?
MR WALKER: No, that was what I called the common law - procedural common law.
GLEESON CJ: The inherent jurisdiction - - -
MR WALKER: Yes, and that is why there was a choice earlier for this Court in Oceanic as to which phrase properly captured the extent of the Court's power or the nature of the Court's power.
GLEESON CJ: But when you come to consider the principles according to which a discretion of the kind given by the rule will be exercised, there are a number of competing possibilities. You could have the Spiliada discretion which is different again.
MR WALKER: That is no doubt why for the second stage which does, in our submission, accord with the word "may" in the rule. For the second stage this Court has overtly incorporated by respectful reference Lord Goff's Spiliada checklist.
GLEESON CJ: But the very first submission you made to us this morning - it was not the very first but one of the first submissions you made which you made at 10.55 am, was that you accepted the "clearly inappropriate" test.
MR WALKER: Yes.
GLEESON CJ: Are we resiling from that?
GUMMOW J: You are not only being watched, you are being timed.
GLEESON CJ: Exactly.
HAYNE J: And verballed.
MR WALKER: Your Honours, if "clearly inappropriate" means the same as "inappropriate" then there is not going to be any difference.
GLEESON CJ: But did you not say this morning that you accepted the clearly inappropriate test?
MR WALKER: I did, yes. If it is something different - if it is something different, all it - - -
GLEESON CJ: If it is different from what?
MR WALKER: Inappropriate.
KIRBY J: Pretty obviously it is, is it not, because one is something that strikes you immediately and it is obvious and the other is something which you evaluate.
MR WALKER: Yes. The difference I have located this afternoon as the matter which would make a difference in a case - it may or may not make a difference in this case - is the matter of emphasis which would differentiate between a case which is finely balanced and a case which is not. The discretionary factors which are Spiliada, in our submission, for the general case, that is, the forum non conveniens law under Oceanic and Voth, is also the appropriate set of discretionary factors for the word "may" in the rule.
So it is the same list of matters which ought to influence the discretion and for those same reasons as developed in Spiliada, Oceanic, Voth and Henry in this Court - sorry, the adoption of Spiliada, then Oceanic, Voth and Henry, which ought to inform the discretion. So far as this case is concerned, it is clear that it was argued below on a basis which did not distinguish between "clearly inappropriate" and "inappropriate". The two phrases are mentioned and that is all.
GLEESON CJ: Then why are you making the point that you accepted the "clearly inappropriate" test? You were doing that for the purpose of distinguishing it from what?
MR WALKER: From Spiliada.
GLEESON CJ: Thank you.
KIRBY J: You said to me that stay was in that rule; I cannot find it expressly in Part 11 rule 8. It does have the general catch-all grant:
(j) grant such other relief as it thinks appropriate.
GAUDRON J: Well:
(h) decline in its discretion to exercise its jurisdiction in the proceedings -
is the one, is it not?
MR WALKER: "Decline to exercise jurisdiction" is the Executive - - -
KIRBY J: That is not quite the same as a stay, is it? A stay has an effect to others who come along to try to invoke it. "Decline to exercise its jurisdiction" is only in the particular case.
MR WALKER: A stay will only affect the parties, your Honour.
GAUDRON J: I think the expressions were used more or less interchangeably in Oceanic.
MR WALKER: Yes, and "declining to exercise discretion", I think, will be accomplished by an order staying the proceedings. They are not decided obviously.
One of your Honours asked me about the contract of hire in this case and reference to Oceanic brings that up. Could I simply give a reference in the appeal book volume 1 page 209 to a request from my own instructing solicitors to my friend's instructing solicitors for a copy of the contract of hire between the plaintiff and the hiring company referred to in the statement of claim. Researches on both sides suggest that the reason why that is the only reference to it in the appeal papers is that there was no reply or that is there was no supply of a contract in response to that request. So we do not have the contract. Whether we would get it by discovery or the French substitute for that is another question.
Your Honours, the way in which the issue concerning the choice of law came up was because of the use that Justice Smart made of it, a use which was said to be, in effect, misconceived by the Court of Appeal thus, on orthodox House v The King grounds, empowering them to re-exercise a discretion, having chosen not to remit it. In saying that he made an error they said that he should not have embarked on the exercise at all and, in our submission, that was to fly in the face of the way this Court proceeded in comparable circumstances in Voth v Manildra.
At 171 CLR, starting at about page 568, but picking up in 569, there is a discussion on locating and characterising the relevant acts or omissions or conduct which gave rise to the claim for the purposes of carrying out that which is unavoidable in any choice of law exercised, be it under Pfeiffer or any other regime, namely, what is sometimes is called, "locating the tort". Having done so, by referring to the cause of complaint being committed in Missouri, the court then continued in the paragraph commencing towards the foot of page 569:
Accordingly -
third line -
even if the matter were to be litigated in this country, the appellant is liable to the respondents only if he is liable under the law of Missouri: see Phillips v Eyre -
that, of course, is the second condition in Phillips v Eyre -
where it is said that "the civil liability arising out of a wrong derives its birth from the law of the place, and its character is determined by that law".
We interpolate: an approach to choice of law by or with Phillips v Eyre which is embraced by our opponents would have that character being somehow and for some inexplicable reason de-determined so that it would no longer be determined by Missouri, it would be determined by New South Wales as the forum.
The next passage is a passage that records how open the question is in this Court:
The precise role of local law under the double actionability rule laid down in Phillips v Eyre need not be explored, but it has no direct bearing on the question -
it did not in Phillips v Eyre either as to the first condition, but the observation importantly was made:
The question whether it would have been wrong if committed in Australia, as is asked under the double actionability rule -
that is, the first condition of Phillips v Eyre -
merely brings local law to bear on that question hypothetically.
The contrast appears to be with the actual character which is talked about with respect to the Missouri law, lex loci delicti, that is the only way one can read:
the appellant is liable to the respondents only if he is liable under the law of Missouri -
not "would be liable", but "is liable".
Then there is a reference to what was there the incidental or factual relevance of Australian revenue law for various matters of damages. They then went on to say of Australian law:
It does not, in any relevant sense, determine the liability of the appellant for that damage or the quantum of recoverable damage.
That would be odd if the substantive law between them if lex fori because it is lex fori. They then go on:
The proceedings have been conducted on the basis that the law of the place where the tort was committed has a significant bearing upon the determination of the dispute between the parties.
Then a sentence which is impossible to be read without casting adverse and overruling light on Thompson v Hill:
In the light of what has been said, it is more accurate to say that it is fundamental.
CALLINAN J: Mr Walker, could I ask you this question: a finding by a judge at first instance of the kind that Justice Smart made here that French law was the appropriate law, would any issue estoppel arise in relation to that?
MR WALKER: No, your Honour.
CALLINAN J: Is that a finding which would bind a trial judge or a judge?
MR WALKER: There is no defence filed yet.
GUMMOW J: It is not a final order.
MR WALKER: No, it is not the kind of determination that could lead to any res judicata.
CALLINAN J: So that I suppose once a judge found that, it would virtually be inevitable that the case would not be tried in New South Wales anyway.
MR WALKER: Well, no, but it if it were not, then of course that issue would never arise. If it were - - -
CALLINAN J: No, but is there any way in which the case could be tried in New South Wales after such a finding?
MR WALKER: Yes. Yes, there is a discretion.
CALLINAN J: There is because the judge might take the view that other factors outweighed it.
MR WALKER: Yes, and in such a finding - - -
CALLINAN J: So the judge only makes that finding at this stage for the purposes of this application that has no operation, except with respect to that application.
MR WALKER: That is right.
CALLINAN J: If that is so, then it seems at least arguable that the Court of Appeal attached far too much importance on that basis alone to his Honour's finding at first instance.
MR WALKER: That is one way to look at it, your Honour. Another way to look at it is that they correctly perceived that Justice Smart used that as an element in his reasoning.
CALLINAN J: But they said he should not have used that, he should not have even got near deciding that.
MR WALKER: They said, in effect, should not have thought about it. But the High Court, in our submission, what they were doing in that 569 to 570 of Voth is showing that it was fundamental.
CALLINAN J: Well, I do not see how you can possibly deal with this question in any comprehensive way without giving close consideration to the law to be applied, the choice of law.
MR WALKER: That is our submission, as your Honour knows. Now, if it be French law, then, in our submission, the relevance of that for the kind of application being considered in Voth, even although it was not a straight comparison doctrine, that is that Spiliada was rejected in Oceanic, it is a "clearly inappropriate" test, not "a more inappropriate" or "more appropriate" test. Notwithstanding that, it is quite clear that one looks to the other jurisdiction. It would be impossible not to.
In looking to the other jurisdiction, one of the reasons why that would affect, first, the finding as to inappropriateness or clear inappropriateness, and, second, a discretion to order a stay or decline to exercise jurisdiction, can be summarised, with great respect, by the statement from Justice Gaudron in Oceanic [1988] HCA 32; 165 CLR 197. The particular reference is at 264, in the middle of the page.
GAUDRON J: I do not think that was subsequently endorsed in Voth though.
MR WALKER: Well, this particular passage I do not think has attracted any disapproval, your Honour. The one I was referring to in particular was right in the middle of the page, about line 5 of that main paragraph:
In such cases the selected forum will have no real interest -
that word clearly being used in a special sense, including constitutional and political -
in the substantive laws to be applied, and prima facie it would seem that the interests of justice might be better served by adjudication in the forum of the country whose substantive laws will be determinative of the rights and liabilities of the parties.
A matter upon which sought to touch in argument this morning. Now, in our submission, that is how pure choice of law matters of the kind Justice Callinan has asked me about, and the stay application, the forum non conveniens matters, can been seen to intersect. In Voth [1990] HCA 55; 171 CLR 538 - I am not sure what your Honour Justice Gaudron had in mind, but at page 566 just above that heading there is a reference - - -
GAUDRON J: Yes, they say a very - that is what I am saying, it does not have full endorsement.
MR WALKER: Well, I do not think your Honour, with great respect, was pronouncing it as an absolute rule, but as a prima facie or guiding factor, and that is how we would respectfully embrace it.
GLEESON CJ: Let it be supposed that you persuade us that paragraph 16 of the statement of claim apart, the rights and liabilities of the parties in the present case on all matters to be resolved by substantive law are governed by the law of France.
MR WALKER: Yes, your Honour.
GLEESON CJ: Once you get to that point, how do you say the discretionary reasoning should go from there? Once I get to that point the inappropriateness or clear inappropriateness emerges, in our submission, that is, New South Wales has no more connection than that given by residence, the matter already deprecated as to its strength in Voth, and as a matter of discretion one can start by enlisting Justice Gaudron's observation about the innate superiority of a substantive law being applied and interpreted by a court of the system which made that law and where that law operates in its territory, and then goes through all the other, what might be called "Lord Goff in Spiliada matters", which are only a guide and non-exhaustive checklist, which Justice Smart does go through, a number of which are summed up at page 222 of the appeal book, but they will include the familiar discretionary, and then truly comparative matters, like counting where witnesses are and working out how evidence can be got and the like.
GLEESON CJ: Why does the fact that foreign law will be applied in the action make New South Wales, in any respect, inappropriate as a forum?
MR WALKER: Because of the superiority for the administration of justice generally of the courts responsible to a law-making body and having jurisdiction within a territory interpreting the laws which govern in that territory.
CALLINAN J: In other words, you say there is a presumption that French courts are likely to apply French law more accurately than Australian courts.
MR WALKER: Yes.
HAYNE J: Does it follow then, inexorably, that in any case in which the law of the cause is a foreign law, all other things being equal, Australian courts should decline jurisdiction?
MR WALKER: "Inexorably" is a word I have to shrink from, your Honour. If all other things being equal - - -
HAYNE J: It is an awkward submission, is it not, Mr Walker, but is that not what it comes to?
MR WALKER: No, if all other - - -
GLEESON CJ: That does not bide too well for our contract cases.
MR WALKER: Contract cases, of course, are governed or dictated by entirely different considerations as by reference to the choice of the parties and by the parties.
GLEESON CJ: Why are the considerations so different? If the New South Wales Commercial Court routinely, in contract cases, giving effect to a choice of law by parties, applies foreign law, why is it inappropriate to find the same court applying foreign law in a personal injuries case?
MR WALKER: Much is going to depend upon where the parties are who are parties to the contract that your Honour asked me to hypothesise. That will make a difference. Much will depend upon why they come to the court in New South Wales. In our submission, contract is clearly different because of the element of choice, not only as to governing proper law, also as to the possibility of having different proper law for different aspects and also as to the possibility of choosing one's forum as well as choosing one's method of dispute resolution.
GLEESON CJ: I may have misunderstood part of your written submissions, but I did gain an impression from them that you called in aid in support of your argument that we should get rid of Phillips v Eyre the fact that there should be no distinction between contract and tort when it came to choice of law.
MR WALKER: Well, your Honour, there should be no double actionability, that is, there should be no special insertion by way of a block of the law of the forum in tort and that would render that comparable with contract, but obviously enough, we do not argue, whether in writing or otherwise, that there should be, or that there is some notion of the proper law of the tort by way of analogy with contract.
GLEESON CJ: But if we were to say, "There is no reason why an Australian court should be slower to embrace the law of the place where a tort was committed as the governing law, than it is to accept the party's choice of law in a case of contract", which I thought you were urging upon us - - -
MR WALKER: Accepting choice of law, in our submission, is quite different from inflicting upon a foreign defendant, for example, a New South Wales' court's understanding and application in a different procedural framework from what would obtain in France, or in a French court of a French substantive law.
HAYNE J: Well, that really comes to the point, does it not? The point is that in your analysis, you omit reference to the fact that the New South Wales court, in its resolution of the rights and obligations of the parties before it, is applying Australian law, namely, Australian choice of law rules.
MR WALKER: Yes. We do not admit that, with respect; that is why we say that this is common law choice of law which can, of course, always be amended by a New South Wales statute.
HAYNE J: But your submission, in effect, leads, does not it not, to the setting to one side of the significance of the whole body of choice of law rules that have developed in the common law?
MR WALKER: I hope not, your Honour. It is not intended to - - -
HAYNE J: And it does it because you say: the only courts that really have an interest in administering the law of a particular jurisdiction are the courts of that jurisdiction.
MR WALKER: No.
HAYNE J: That the whole of PIL is founded on the opposite premise.
MR WALKER: I accept that, your Honour, entirely. As to what you say about the opposite premise, we do not, anywhere, say, "only". We say that when one comes to the question of appropriateness, fittingness, suitability, then it is not anywhere near saying that only French courts can apply French law, for exactly the reason your Honour, with great respect, demonstrates - - -
HAYNE J: And your submissions seem to run perilously close to a submission, in essence, that the whole long arm jurisdiction of the court should be set to one side.
MR WALKER: No, your Honour, it does not do that, any more than it says that about other countries' long arm jurisdiction. Long arm jurisdiction, obviously, is a matter which does call in aid some rather important matters, which is why we have, for example, a Commonwealth statute about certain forms of long arm jurisdiction, in particular, anti-trust with the United States. But it is of some significance, in our submission, that nothing about the choice of law rule for which we contend denies the appropriateness of the New South Wales court applying the substantive laws of France to determine this tort. We protest that; that is the premise of our attack upon the way in which the Court of Appeal disagreed with Justice Smart. That is at odds with any notion that our submission tends against the New South Wales Supreme Court exercising long arm jurisdiction.
GLEESON CJ: But you seem to be putting your discretionary argument upon the basis - if I may use another Latin expression for which there appears to be no terribly convenient English counterpart - that once you have demonstrated that the governing law is the law of France, then New South Wales is prima facie an inappropriate forum.
MR WALKER: No. If only by reason of the way this Court approaches questions of presumptions or prima facie positions in Voth, in relation to the one which is probably the most powerful in terms of a citizen and access by citizens to a court, namely, residency, it would be wrong for us to suggest that a prima facie approach is applied - - -
GUMMOW J: Do you not have to say - and you may have no difficulty in saying this, but do you not have to add that these are foreign defendants?
MR WALKER: Yes. And I was about to say, Justice Hayne asked me about if all other things are equal, are you simply not saying: once one establishes that the locus delicti is not New South Wales, is perhaps overseas, and that the tort is governed by the lex loci delicti, then at that point, inexorably, there is to be a stay. No, we say. And we say no, it does not even mean prima facie. But that is a matter which weighs in favour of a finding that the local forum is inappropriate, or clearly inappropriate. And that, with respect, is precisely how this Court proceeded in Voth v Manildra, and there is no other way, in our respectful submission, of interpreting the passage that piquantly ends with the word "fundamental". And that was the holding which led this Court to set aside the second stage discretionary judgment of the Court of Appeal in Voth.
Now, that was not a question of it being prima facie, but of observing that that factor meant that New South Wales was clearly inappropriate in the circumstances of that case, which included all the residents of the parties being taken into account, which included where the witnesses were, being taken into account, which included where the professional work was being done, including to what extent Australian revenue law, for example, or Australian commercial transactions, was relevant to the accountant operating in Missouri.
So that all of those matters, which are peculiar and special to every particular case, have to be added, rendering meaningless, that is as meaninglessly abstract, the notion that once one identifies the governing or substantive law, one has decided the application. We do not put that, we could not put that; it would be in light of what this Court does in Voth, wrong. What we do put and rely upon is that the factor that Justice Stein said was arguably premature even to consider, was regarded by this Court as fundamental in Voth and that is why Justice Stein, the Court of Appeal, made an error in this case.
We would go further and say we have just as many connecting factors with New Caledonia and France in this case and more, as they had for Missouri in that case. It is the concatenation of all of those that makes New South Wales inappropriate in this case, or clearly inappropriate, just as it was the combination, not one of them in isolation, that made New South Wales inappropriate in Voth v Manildra. So there is no part of our submission which fixes to one of these factors, namely lex causae and says, that is a prima facie or mandatory or an exorable indicator of the need to order a stay.
CALLINAN J: Mr Walker, as the respondent was clearly suffering injuries in New South Wales or suffering damages in New South Wales, the only matters that the court had to decide were discretionary matters, were they not?
MR WALKER: No, it depends what one means by discretionary. Jurisdiction was clear on that ground, notwithstanding earlier contest. So far as concerns discretion, yes, there is ultimately a - - -
CALLINAN J: A discretion. What is the intermediate question? Would you formulate that for me, please?
MR WALKER: It is the condition of the existence of the discretion, namely, a conclusion, clearly judgmental, but not strictly a discretion, that New South Wales was inappropriate.
CALLINAN J: Does that itself involve discretionary considerations?
MR WALKER: Your Honour, it involves weighing up matters, it involves questions of balance, it involves the judgmental notion of what is suitable or proper or adapted, it involves in that sense spectra of outcomes rather than fixed black and white rules, and those, of course, are attributes shared with a classic discretionary judgment, but it is not discretionary beyond those attributes.
CALLINAN J: So if the Court were to decide that the forum is an inappropriate forum, is that the end of the matter?
MR WALKER: No. Then there is, what Lord Goff calls, the second stage. It is the word "may" in our rule.
CALLINAN J: But are there any different considerations operating? The factors that are weighed up - - -
MR WALKER: In this case, no, but - - -
CALLINAN J: In most cases, no, I would have thought.
MR WALKER: Everything which was grist to the mill of the inappropriateness finding would serve double purpose at the discretionary stage.
CALLINAN J: What extra might there be under the discretionary - - -
MR WALKER: Delay, your Honour. I do not know, is delayed?
GAUDRON J: Circumstances of the parties, for example.
MR WALKER: Well, subject to what I have said this morning about money and equality - - -
GAUDRON J: Let us take an asbestos case, for example.
MR WALKER: For example, in Lubbe, notwithstanding some of the matters that were said, both in the majority and minority, there is the special consideration having to do with class or grouped litigation which finally swung the balance. There is nothing like that, of course, in this case.
GAUDRON J: But it may be a very important matter if, for example, the plaintiff is just simply too ill to travel elsewhere?
MR WALKER: One would have no doubt looked at the way in which evidence could be taken and the extent to which personal presence was desirable, yes, your Honour, and I think I have mentioned delay in the application or the prosecution of the application, dealings between the lawyers concerning expenditure and the like before the decision was taken to seek the stay. They would be second stage, not first stage considerations.
CALLINAN J: Mr Walker, in that passage to which you referred us in Voth from the joint judgment in which agreement was expressed with her Honour Justice Gaudron, a statement is made that the law of the forum is a very significant factor in the exercise of the court's discretion. It says nothing about the significance of that factor on the first question, whether the forum is an inappropriate forum or not. Do you understand what I am asking?
MR WALKER: Yes, I do. The sentence beforehand, though, by its slightly different use of language, I think, picks up what Justice Gaudron was saying that if lex fori is the substantive law, then that was said in Oceanic by Justice Gaudron that "the selected forum should not be seen as inappropriate if it is fairly arguable that the substantive law of the forum is applicable in the determination of the rights and liabilities of the parties". That is the first stage exercise and your Honours will recall that is precisely what was sought to be invoked by our learned friends in this case. That is why the expression "fairly arguable" emerges and that is why, notwithstanding paragraph 16 of their pleading, they say New South Wales law will determine negligence and damages, and that is what they were enlisting.
Now, when they go, your Honour, and say of that statement by Justice Gaudron that they agree, they select, however, the word "discretion". If your Honour is asking me whether that verbal use is intended to suggest a conceptual equivalence between the inappropriateness issue and the issue whether to order a stay, I would respectfully submit it does not. If it should be taken in that way, it is doing little more, with respect, than saying that the nature of the determination of inappropriateness or not calls up the same kind of balancing, judgmental, non-uniquely correct answer exercise which is one of the hallmarks of discretionary judgments as well, truly discretionary judgments as well.
CALLINAN J: In any event, your submission is that it is certainly not wrong on any view for the choice of law question to be considered during the first step or in the course of reaching the first conclusion and before exercising the discretion?
MR WALKER: That is right, and as your Honour knows, we go further. Wrong not to look at it. Fundamental, in our submission, that you must look at it. Of course, in the quick way, the same court, Voth says these applications should be done and that is one of the reasons why, quite apart from what they would have anyhow as legal status, the determinations are obviously provisional in the sense that they are for the purposes of the application. They are obviously before pleading by the defendant.
Your Honours, could I indicate why it is we say that Phillips v Eyre should not be taken as having decided that which it has for so long been regarded as decided, when by expressions, "double", as in "double actionability", "the first and second", as in limbs, legs or conditions, there is a reference to what appears at the foot of page 28 of the report which is (1870) LR 6 QB. Before coming to the critical passage which starts on page 28, may I remind your Honours that at page 20, on a quite intellectually and conceptually distinct issue, nonetheless, matters of what I will call policy as between forum and the place where the events took place, are being considered.
I simply want to draw to attention the way in which this judge, whose first condition has been used as a kind of policy filter by some writers, in fact, regarded that matter. In the last paragraph on page 20, his Lordship says, of an argument which has nothing to do with choice of law:
It was further argued that the Act -
that is the Act of indemnity -
in question was contrary to the principles of English law, and therefore void.
I draw this to attention because that is obviously the language of some overarching, transcendental policy -
This is a vague expression -
his Lordship said -
and must mean either contrary to some positive law of England, -
which may well mean an enactment -
or to some principle of natural justice -
meaning not procedural fairness, of course, but something in the nature of natural law -
the violation of which would induce the Court to decline giving effect even to the law of a foreign sovereign state.
The word "even" suggesting that that was regarded as a serious, not non-serious matter, a matter to be baulked at rather than welcomed.
At page 27, on another of the issues which preceded the choice of law matter, namely the question of retrospectivity, the act of indemnity having been stigmatised by the plaintiff as an ex post facto law, in the American sense, in the course of total demolition of that argument and a vindication of what might be called, in particular, beneficial retrospectivity, his Lordship says, in the middle of page 27, having referred to the manifold circumstances which may make retrospectivity of legislation a good, not questionable, thing, picking up right in the middle:
Whether the circumstances of the particular case are such as to call for special and exceptional remedy is a question which must in each case involve matter of policy and discretion fit for debate and decision in the parliament which would have had jurisdiction to deal with the subject-matter by preliminary -
that is prospective -
legislation, and as to which a court of ordinary municipal law is not commissioned to inquire or adjudicate.
Now, nothing to do with choice of law as such, but a powerful indication that his Lordship was not one of those saying that the courts of law were empowered or indeed obliged to apply some more or less general - critics may say amorphous notion - of English public policy as a filtering device for access to English courts. There is no question of access to the court here.
Then we come to the last matter which is a discrete matter introduced on the top of page 28 by the expression, "The last objection". Interestingly, he says - interesting, that is, for those who submit that the first condition of Phillips v Eyre, so-called, is a matter of public policy or some important filter to prevent things obnoxious to New South Wales being litigated in New South Wales his Lord says it is of a more technical character. Quite so. Certainly more technical than the one which had preceded.
The assumption: of course, your Honours will recall this whole argument was had on the assumption that the actions of Governor Eyre and those assisting him were actionable, had they been committed in England. That is an assumption, for the purpose of the argument, to enable the indemnity Act to be the point of decision in the case. At the end of the report his Lordship in effect begs to question whether that would be so, but at the moment one of the assumptions is these were torts or trespasses in Jamaica.
Another assumption for this argument was that the colonial Act, that is the Act of indemnity was valid, that is, validly enacted for the purposes it was enacted and "a defence there" meaning in Jamaica. Then the argument went on:
it could not have -
ironically -
extra-territorial effect
We say ironically because the consequences of the argument against us run right into the considerations noted by this Court in para [92] of Pfeiffer. So the argument was it would be to give it -
extra-territorial effect -
if it took -
away the right of action in an English court". This objection is founded upon a misconception of the true character of a civil or legal obligation and the corresponding right of action. The obligation is the principal to which a right of action in whatever court is only an accessory . . . A right of action, whether it arises -
and this is important because it calls in aid that degree of synthesis or similarity between contract and tort which we do argue, namely, no double actionability:
A right of action, whether it arises from contract governed by the law of the place or wrong -
so, this is a sentence which refers to both -
is equally the creature of the law of the place and subordinate thereto.
Now, what the place is when he is talking about "contract" will depend upon what the contract has chosen, obviously. The next sentence:
The terms of the contract -
et cetera. Then the sentence below about tort:
And in like manner - - -
GUMMOW J: Yes, but that is a view about choice of law in contract.
MR WALKER: Yes, but the point is that what he is saying here does not favour - indeed, with great respect, the point your Honour makes only serves to emphasise this. There was no double actionability, we would submit, in what his Lordship was deciding at this point?
McHUGH J: Why? He is dealing with something completely different. He is dealing with a question as to whether a foreign statute can take away a right of action in an English court. It has nothing to do with what Phillips v Eyre is famous for.
MR WALKER: That is one of the reasons, your Honour, that is, what did it decide and why, why caution should be applied before saying that Phillips v Eyre lays down a rule or even says what the common law was. It did not decide what has later been called double actionability at all, with great respect.
McHUGH J: But his Lordship is brushing away all the undergrowth before he turns to the serious matter and he gets to that at the bottom of page 28.
MR WALKER: No, your Honour, before he gets to that he pronounces the principle upon which, having swept away the undergrowth, the matter is decided. He is dealing, as your Honour says, with an argument about so-called extra-territoriality.
GUMMOW J: Do we not have to know what the terms of the demurrer were, if we are going to be precise?
GAUDRON J: Did not this come by a demurrer to a defence?
MR WALKER: It is a demurrer to the second plea - - -
GUMMOW J: The meaning of all this is lost to English writers, but it is not lost to us though, so perhaps we better attend to it.
MR WALKER: One finds it at the top of page 6, the demurrer:
As to the second plea, so far as it relates to divers of the trespasses committed on the high seas -
No, sorry, that is the truly extra-territorial one. We have the interest of the governor in No 5.
HAYNE J: It is the paragraph numbered 5 at page 6 that he has demurred to, is it not?
MR WALKER: Except that one was the argument that, as the court denounced it, confused legislative and judicial function and confused the inability of a judge to decide his own cause with the inability of a governor to assent to a law from which the government could benefit. That is what that was. Your Honours, when one comes to the argument - - -
GLEESON CJ: There was a demurrer to the second plea, as appears from the bottom of page 5.
MR WALKER: Yes.
GLEESON CJ: The second plea appears on the bottom of 2 and goes over to 3.
MR WALKER: The second plea is a plea of justification; that is the plea of the act of indemnity. Now, as to the ground of the demurrer, there are a number of grounds of demurrer to that and, as I say, they included a number of quite distinct arguments. If one was to pick it up in - - -
GLEESON CJ: But it is the second plea that raises the matter which is referred to on the bottom of page 28 and the top of 29. I am sorry. It is the second plea that raises the second leg of Phillips v Eyre.
MR WALKER: The second plea is a plea of the colonial Act; it pleads justified or - - -
GLEESON CJ: It pleads the indemnity as a defence to the action.
MR WALKER: Excused, indemnified by law; that is the plea, and there were a number of objections to it. The so-called rule in Phillips v Eyre comes from a determination of what is called the last objection. What I was trying to help your Honours with, and am failing singularly, is to find the explanation of the demurrer to that plea. Can I take you, however, to the way in which it was put in argument, because you can there see the order in which it was put somewhat differently by counsel. At page 9 it is introduced by the word "Thirdly", the argument that ends up being dealt with as the last objection to the second plea:
cannot be set up as a defence to an action in a court of justice in England for a wrong committed in Jamaica -
and then gives the vested action theory.
GLEESON CJ: But Phillips v Eyre was not about the first limb of the rule in Phillips v Eyre at all.
MR WALKER: No, it was not.
GLEESON CJ: It was about the second limb.
MR WALKER: It did nor arise because it was supremely evident to everybody that the conduct of the kind complained of would satisfy The "Halley".
GUMMOW J: Well, it was assault and false imprisonment.
MR WALKER: Yes, he had savage hands laid upon him and bundled off into a ship and imprisoned and beaten. So the rule in The "Halley", if there is such a thing, did not arise for decision. That is why if by the foot of 28 your Honour Justice McHugh meant the reference to The "Halley", then emphatically, no, that is not - - -
HAYNE J: Well, that was the argument advanced at page 12, was it not?
MR WALKER: Yes, your Honour. There is an argument at page 12 - - -
HAYNE J: In the last six to eight lines of page 12 we have counsel for the defendant asserting what becomes the second limb, do we not, asserting both limbs?
MR WALKER: Well, it is a little difficult. Certainly, there is a reference to The "Halley". There is a reference to double actionability in what is said:
the wrong must be one for which an action can be maintained both in the foreign country and in this country.
What there is not is any suggestion that anybody ever doubted the second of counsel's requirements, namely, actionable maintained in this country. The question in that case was: could it be maintained in Jamaica? Most of the argument was devoted to the attempt, on the part of the plaintiff, to demonstrate it could be maintained in Jamaica because the Act was void on a number of different grounds. So there was no issue before the court as to whether it could be maintained in England at all. What is then said at 28, there is first the reference to "contract". There is a reference to:
prima facie, it falls under the law of the place where it was made. And in like manner the civil liability arising out of a wrong derives its birth -
That is the quotation that is being primacy by this Court in Voth v Manildra, and it ends up:
its character is determined by that law.
What is called the "first condition" in what follows, would de-determine that character and certainly remove the birthplace as having any relevance, which is no doubt why Mr Justice Clarke reaches that conclusion in Thompson v Hill. Then the conclusion is expressed at that part, two-thirds of the way down 28:
Therefore, an act committed abroad, if valid and unquestionable by the law of the place -
that is the place of the act abroad -
cannot, so far as civil liability is concerned, be drawn in question elsewhere unless by force of some distinct exceptional legislation, superadding a liability other than and besides that incident to the act itself.
Well, no doubt, the court of the forum must always obey the Acts of the forum, because all of this choice of law, all PIL is, of course, law of the forum:
In this respect, no sound distinction can be suggested between the civil liability in respect of a contract governed by the law of a place and a wrong.
McHUGH J: Yes, but you have to understand this in terms both of the structure of the judgment and in terms of the pleas. The judgment follows the form laid down by Aristotle's rhetoric: you deal with all the objections, get rid of them, and then show your own positive case. That is what is done at 28 to 29. A modern judge might start at the last paragraph on 28, 29, et cetera, and state what the principles are. But Justice Willes has dealt with all the particular objections to the second plea, got rid of them, and then he states what the principles are that govern this sort of action. Now, what he says from 28 onwards is as much part of the ratio as any other particular part of this judgment.
MR WALKER: Ratio has to be ratio for a decision, and it cannot be shown - well, I will come to it in a moment, your Honour - but one, first of all, cannot deny the power of the language that commences with the word "Therefore", in terms of disposing of the objection, to adopt your Honour's language. That is what disposes of the objection; it is gone at that point. He then goes on to expatiate upon the matter by reference, among other things, to authority, and in so doing, does that which has given us double actionability and undoubtedly commences with a form of words which, because they are encyclopedic, as it were, fit the description your Honour has suggested: "As a general rule", his Lordship says.
Now, the first thing to be said about a general rule is that, perhaps, one ought hesitate to express general rules beyond the necessity of the decision which has to be made in a case. Second, if one does, then there is always the risk that it will be discovered later that the articulation of the general rule, having gone further than was necessary for the decision of that case, will not have had a sufficiently concrete occasion to remain authoritative, if it had ever been authoritative. And that is this case. The so-called first condition did not arise. Hence the irony that it was only counsel for the defendant that refers to these matters at all, and not counsel for the plaintiff.
Now, it is clear enough that the way in which the first condition is expressed is very plain, very simple, which is why we refer to the consequences of applying it literally, as a matter of ordinary English. They wipe out, they de-determine the character of the wrong as having been given by the place of its birth:
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.
Unless you have both, you lose. Hence, double actionability.
McHUGH J: But having been laid down in these terms, it was accepted as the law, and has governed actions until comparatively recent times, certainly since the time I came into the profession.
MR WALKER: Your Honour, if one were, as it were, to judge from that state of the law, which can be seen from the way it is taught perhaps unquestioned at law schools, then yes, in answer to your Honour's comment.
McHUGH J: But when it was applied day after day. I mean, take a case like Oceanic v Fay. If it went to trial, it would have applied this law.
MR WALKER: Anderson is the best example in this Court.
HAYNE J: Yes. And Koop v Bebb, surely.
MR WALKER: And particularly - - -
HAYNE J: The joint judgment in Koop v Bebb, and their Honours' understanding.
MR WALKER: I am sorry, your Honour, yes, I take it, as we argued in Pfeiffer, yes, these cases all endorse the matter. I am sorry, I draw Anderson to attention because the facts there were a first condition case. That was the case where the common law, unsupplemented in New South Wales, rendered contributory negligence as a complete defence. An injured plaintiff sued in New South Wales rather than the place of the tort, the ACT, which had reformed its law by statute so as to provide for apportionment rather than total defence.
HAYNE J: But some, at least, of the difficulty that is thought to be presented in this area stems from the underlying theoretical question of whether you are enforcing an obligation of the place of commission or enforcing an obligation of the forum.
MR WALKER: Yes, your Honour.
HAYNE J: The question that was looked in Koop v Bebb answered one way.
MR WALKER: In our submission, your Honour, the way it was answered in that case was to say that what Phillips v Eyre did was to lay down a rule which had two conditions, each of which must be fulfilled, without asking the anterior question, "What is the principle to be gathered from the way in which Phillips v Eyre was decided for the stated reasons?", and the first condition, so-called, did not contribute to the decision. It did not arise, those matters. That is the first observation. The second is that one cannot read the first and second conditions, and the first takes only one sentence, and the second takes the balance of the passage.
One cannot read it and see, for example, that there is some special quality to the sequence, the order in which they are expressed. What one does know is that The "Halley" was a recent decision of the Privy Council at the time of this judgment and a very plain statement of a result. One also can see that there is nothing more than the statement and citation of that authority, The "Halley", at the top of page 29. Then one comes to the second condition, which was the matter which arose for decision in Phillips v Eyre. What one has is a combination of citation of authority and a reference to the principles to be gathered from them, a justification for the result in that case, a result which, for this part of the judgment, depended upon the assumption of wrongful act indemnified by a local statute, that is a statute of the place where the act took place.
McHUGH J: This is really an application of the vested rights theory, is it not, which has been rejected in this Court in one of these cases. Did not Justice Toohey say that, "One thing that was certain was the vested rights theory has been rejected in this country", either in Voth or Oceanic, one of those cases?
MR WALKER: This case is not the apotheosis of the vested rights theory, no, your Honour. This case says that the law by which a wrong takes it character - not which gives to particular people particular things, let alone procedural rights, for example - the law of the place where it was committed gives it its character. Now, that is a choice of law rule because otherwise it would be a trivial observation about the sovereignty of foreign jurisdictions.
HAYNE J: I do not think it trivial at all. It is the most fundamental question in the conflict of law, namely, is a court enforcing obligations that derive from the law which gives it its birth or is it enforcing obligations that derive from some other law. It seems to me that Phillips v Eyre, on one view at least, has found it wholly in a vested rights theory.
MR WALKER: Well, your Honour, if it is, then so is Pfeiffer, federally, in this country now.
GUMMOW J: Yes, that is right. I am not ashamed of it.
MR WALKER: Your Honours, if one talks about vested rights, then the word "vested" needs exploration. In this case, the significance of the vesting, and it is a quite different usage, was the idea that you could not retrospectively take away a cause of action by an act of indemnity, wholly exploded in the other reasoning on the other points. That was the concern that Mr Justice Willes had to deny that there was anything in the nature of vesting of the right which could not be affected by a valid statute.
If one is talking about the nature of a wrong being fixed historically by the time and place where it occurred, subject to the law of the forum or a law locally such as the act of indemnity being later enacted, if that answers the description of a vested rights theory, it would do so, first of all, only very generally and, secondly, not in such a way as to denigrate the approach.
The reference on page 28 to extra-territoriality is, of course, relevant to the other meaning of the word "vested", as in "vested rights", which was talked about in Phillips v Eyre because it was said that the local statute could not take away that which you had by the law of England and this is why there is a choice of law element to this because what Mr Justice Willes for the court says is, "The law of England is being applied. I am applying the law of England, but I am applying it by saying that by the law of England, the character of the wrong you allege out of this jurisdiction is given it by the law of the place where it occurred, that is, the law of England, and it means that you have to live, including as to matters of justification, including by way of retrospective legislation, according to the law of the place where it occurred".
That reasoning is not usefully, in our submission, labelled a vested rights theory. That reasoning does not depend upon matters vesting at instance when causes of action are complete. That is simply referring to a choice of law rule which obviously looks, among other things, to the principle and policy that the same outcome should, in a civilised system of laws, nationally as well as internationally, be produced, whichever system for the administration of justice, looks at the same set of facts. That may be an ideal, but it obviously underlies both this and Sir Robert Phillimore's approach.
It also underlay clearly the approach of this Court in Pfeiffer. That is a matter of what we will call transcendental importance to the administration of justice, which is not to be confined only to the comity between polities in a federation, but it also has obvious meaning in times of international trade and international travel in terms of international comity.
It is for those reasons that we locate the ratio of Phillips v Eyre at the passage just below half way on 28 and that when one comes to the pronouncement of the general rule, with great respect, Homer nodded as to the way in which he expressed the first condition. First of all, it does not have to be first. There is nothing in the reasons to suggest it could not have been second. Second, it would have the effect, if interpreted literally, that at the foot of the page his Lordship has undone what he had done in the middle of the page because in the middle of the page he said it gets its character from its place of birth. Then, according to some readings of the first condition, it loses that character, it is de-determined as to its character because, not of the law of the birth, but the law of a territory, which may have no connection whatever with the place of the wrong. It just happens to be the forum where the wrong is sued on.
GLEESON CJ: Mr Walker can I interrupt you again to ask - and I am only asking this question for the convenience of a case that has been listed to commence tomorrow after argument of this case concludes. I am trying to ascertain whether there is any realistic possibility that there will be any significant amount of time left tomorrow after this case finishes. We are not going to sit until 11 am tomorrow.
MR WALKER: My friend and I think that may be rather difficult, your Honour.
GLEESON CJ: You think there will not be any significant time left after this case?
MR WALKER: We do think that.
GLEESON CJ: All right. Thank you.
MR WALKER: Your Honours, may I then come where the second condition is elaborated on page 29 of the report. Now, the two Iceland cases are cases of local justification. The Dobree v Napier, of course, is as is explained there, a case which is evocative as to its facts for the purposes that Mr Justice Willes was deciding, because by serving the Queen of Portugal Admiral Napier was doing two things. First of all, he was doing something which was a criminal act against an English statute. Second, notwithstanding that, he was thereby justifying - and so it was held by the English court - what would otherwise have been an actionable seizure in England, according to the law of England, an English ship was seized by a Portuguese ship under the command of Admiral Napier then, no doubt to supplement half pay, in the service of the Queen of Portugal, that being contrary to a foreign enlistment act. Notwithstanding that it was, as it were, the fruit of an offence, the English court said, because it was justified by the law of the place where the seizure took place, "It was in response to your superior, the Queen, no action".
Now, that is a fortiori because if one is talking about policy of a forum operating by means of the first condition as some kind of filter then Dobree v Napier cited on page 29 simply does not fit with the expression and later misunderstanding of the fist condition on page 28.
GUMMOW J: Can I ask you this, Mr Walker. If you are right and one should adopt as the starting position actionability in an Australian court of tort cases to be governed by the lex loci delicti, even if that is outside Australia, do you put any counterweight on that? For example, is there any room for treating as relevant in any way the same sort of considerations which would lead one to enforce a judgment that had been obtained in the forum of the delict?
MR WALKER: Yes.
GUMMOW J: It would be odd if there was a disharmony between them.
MR WALKER: Yes, we do. This case is not an appropriate vehicle to do other than to recognise the highly desirable conceptual existence of that. There are no facts, or at least we have not heard any, or argument by which any of those factors would be engaged at this stage in these proceedings.
GUMMOW J: When I talk about reasons for not recognising, I mean for not recognising at common law foreign judgments.
MR WALKER: Yes. Incapacity to have been heard, for example?
GUMMOW J: Yes.
MR WALKER: Yes, your Honour, it would be - - -
GUMMOW J: There are some German judgments in the 30s, Abouloff v Oppenheimer and those sort of cases.
MR WALKER: I think your Honour may have in mind as well Oppenheimer [1976] AC 249.
GUMMOW J: Yes.
MR WALKER: First of all, there is what your Honour calls a counterweight or an exception or a limit, perhaps is a better way of putting it. First of all, conceptually, it would be wrong in a case which does not raise the need for a limit to rule against a limit. That would be wrong. Second, it would be equally wrong to try to delineate the nature of that limit and the criteria by which it would be attracted. For the same reason, we do not have concrete matter to argue about, for the same reason, with great respect to his Lordship, that Mr Justice Willes went wrong in pronouncing the first condition.
Your Honour asks me whether we embrace the possibility. The answer is, emphatically, yes. It is in our written submissions. Your Honour has raised one we have not touched on and which we would respectfully adopt, namely, that the common law with respect to the enforcement of foreign judgments is one source of what I would call legitimate judicial refusal to recognise the outcome of another court's legal system. There are also statutory examples. I think I have mentioned some Trade Practices Act ones.
Your Honours will recall, in particular, with relation to some of the US ambitious long arm statutes the response at Commonwealth level in the Parliament. I would simply refer to the statute which deals with a number of aspects that arise out that, the Foreign Proceedings (Excess of Jurisdiction) Act, a complex piece of legislation which does include, among other things, refusal to enforce causes of action to recoup executed judgments with expenses and the like.
It is no doubt that there are powerful public policy reasons which, for the reasons that Mr Justice Willes points out, might normally be best left to Parliament, but there is no reason to believe that there should not also be something residual for the judges. The enforcement of foreign judgments is one. We have referred also to the possibility, which perhaps should properly involve legislation and not simply case law, but the possibility that treaties binding on Australia as a matter of international law would also provide the possibility of, for example, refusing to enforce laws, such as characterised the excesses of the Third Reich. But apart from those examples, which we offer very diffidently, all we can say is, yes, there ought to be some kind of counterweight and it ought to be determined in a suitable case.
GLEESON CJ: In the categorisation of actions that exists in this area, how are actions for civil penalties characterised?
MR WALKER: Sir Robert Phillimore referred to delict, as he called it, or wrong or tort and crime as being two faces of a similar aspect of the law. He did not allow in that dichotomy - and this is the weakness no doubt of the dichotomy - for something in between.
GLEESON CJ: What about an action for treble damages for conduct by an individual who was a director of a corporation which offends anti-trust laws of the United States?
MR WALKER: Now, that was one of the topics, as your Honour knows, of the Commonwealth statute to which we referred.
GLEESON CJ: Yes, it was that that prompted me to ask that question.
MR WALKER: Yes. That does not answer your Honour's question because your Honour is asking me about the judicial response to that in the absence of legislation. In our submission, it would be difficult ever to say that treble damages run counter to some fundamental elementary Australian policy that the judges should embody as opposed to the Parliament. It is not like killing the first born.
GLEESON CJ: But would that be treated as tort for the purpose of these principles?
MR WALKER: I do not know. It, in our respectful submission, would be treated as a tort case. If the content of the right flowing from a wrong included treble damages, then it would be unexceptionally a tort case. Now, what the response to that should be, when such a case arises not covered by the federal statute, ought to await such a case.
GLEESON CJ: What I am thinking of is contravention of a foreign statute to which the foreign statute attaches that particular sanction or a sanction like that.
MR WALKER: Yes, your Honour.
HAYNE J: Well, then questions of the kind raised by enforcement of foreign revenue laws and the like may be thought to be invoked; they may not.
MR WALKER: Yes. There are lines - even revenue laws can provide at the boundaries difficulties of definition and characterisation. So too do penal laws and the perhaps oxymoron civil penalties - I do not suggest it is literally an oxymoron, but it raises problems of that kind - may also be definitional. The fact that they are definitional problems does not mean there is a weakness in the principle, but that the ingenuity of law-makers around the world and of jurisprudence characterising their various output, will always be able to distinguish at different levels of generality in different ways. In our submission, it will probably come about that in an appropriate case the issue will be presented something like this: in essence, does this remedy partake of the nature of punishment or does it partake of the nature of making good the wrong? Now, that, of course, would raise as a potential anomaly the common law of exemplary damages.
HAYNE J: What is the fundamental difference between the considerations that are engaged of a debate just had and the first limb of Phillips v Eyre?
MR WALKER: The fundamental difference is that the first limb of Phillips v Eyre does not restrict itself as a so-called filter to matters which are traditionally obnoxious. I do not know why tax is there, but it is. Tax, crime and racism, and covers everything, and as one can demonstrate, covers everything in a way which can lead to the most extraordinary results in terms of depriving somebody of the kind of right which until, for example, the New South Wales Parliament intervened, was given to New South Welsh people by common law.
So if the first limb operates as some has said it does, then one can suppose this hypothetical. In New South Wales it is decided, for budgetary reasons and political reasons, to do with the political tolerance of voters who pay compulsory registration fees for cars, to have a "no litigation" scheme for looking after the victims of road accidents, be it supposed that that fantasy came about.
GLEESON CJ: Why is it a fantasy? That is New Zealand.
HAYNE J: And Victoria - - -
MR WALKER: Why raise it? Be it supposed there is some such scheme. Be it supposed that as in New Zealand, including in New Zealand for occupational matters, there is an outright abolition, root and branch, of any cause of action. Be it supposed that it is then a political question to do with the tolerance of the local electors putting money into the local coffers to be spent on local residents as to how that scheme is then worked out. That statute, under a literal application of the first condition in Phillips v Eyre, will prevent somebody, resident in New South Wales, from suing somebody who injured them in the kind of accident which, if it occurred in New South Wales, would fall within that statute's aegis.
It would prevent them notwithstanding they are not eligible to benefit from the scheme, and it would prevent them by giving, in effect, by choice of law rule, the extra-territorial effect of that peculiarly local New South Wales statute based on peculiarly New South Wales politics and finances, contrary to what is said in paragraph [92] of Pfeiffer and contrary, in our submission, to the comity of observing different policies for different places.
GAUDRON J: The other side of the coin, as it were, was dealt with, to some extent, in Pfeiffer, it being for intranational torts, of course, a double actionability rule has gone, and it was pointed out there that the, albeit in terms of the clearly inappropriate forum test, that if the cause of action was one that was simply not known or not available, or not countenanced, in the forum, then, of course, should be very likely and clearly inappropriate forum category. Now, I am just wondering if, as a matter of history, the notion of double actionability rule is not there because it predates the sort of jurisprudence involved in "forum non-convenience" "clearly inappropriate" and "inappropriate" - - -
MR WALKER: It may well, your Honour.
HAYNE J: And hinted at by his Lordship at page 28, in the first four lines of the paragraph you focused on.
MR WALKER: Yes, your Honour.
GAUDRON J: Whether in the long run it is worth worrying about this because inappropriate forum, or clearly inappropriate forum, may solve the problem.
MR WALKER: The parties in my client's - - -
GAUDRON J: Including, and comprehending in that notion, policy grounds of the sort - - -
MR WALKER: That go to enforcement of foreign judgments, for example.
GAUDRON J: Yes. Now, there is - - -
MR WALKER: This country does not have a Human Rights Act which would affect such matters, but it may be that without legislation those matters - - -
GAUDRON J: For example, a remedy was refused in Spycatcher for essentially policy considerations. But assume that be the case, that it does come within what I will call clearly inappropriate forum, or inappropriate forum, and the law does develop that way, that does not necessarily mean that inappropriate forum, or clearly inappropriate forum, will only be established by pointing to a more appropriate forum, either.
MR WALKER: I accept that. It may be that there will be nowhere to go for some cases.
GAUDRON J: Yes.
GLEESON CJ: I wonder whether a difficulty for that lies in the supposedly summary aspect of the decision-making that is to be involved in applications of this kind.
MR WALKER: It would be a real difficulty if the - what I will call "policy grounds" - it is too broad a term, but it will serve as a label - if the policy grounds, which might determine actionability, were to be seen as part of a choice of law and were to be activated by matters so mundane or ordinary in their occurrence as to give rise to argument all the time. But the examples that have been raised, in our respectful submission, are truly exceptional, and will not arise very often at all, so that the usual summary nature of an application in which choice of law is urged one way or the other by parties to an inappropriate forum application will not be defeated by permitting, instead of double actionability as presently understood, choice of law from lex loci delicti, with a safeguard against the local court thereby lending the local administration of justice to the perpetration of injustice.
HAYNE J: Now, you gave an example a few moments ago. What account, in that example, do you take of the fact that by hypothesis, there is another jurisdiction that is in some way engaged? You suggested injustice, in the TAC-type scheme because somebody could not resort to the courts of New South Wales. But by hypothesis, there is another jurisdiction that might be engaged. Where, then, lies the injustice?
MR WALKER: It follows from the judgment involved in clearly inappropriate or inappropriate forum - - -
HAYNE J: And it may well be a very relevant factor to know that you cannot resort to any court save the one whose jurisdiction you have invoked.
MR WALKER: May I shorten it this way, your Honour. In many cases there would be no inappropriateness shown by the fact that there is another court to which you can have recourse. The example I gave your Honour was not of - I did not mean that other jurisdiction had no recourse. I had this example in mind. New South Wales, the forum, has for its residents based upon its tax payer's toleration, a scheme which says no car accident gives rise to a cause of action.
There is an injury in another place of a happier kind where negligence actions flow whenever there is a motor vehicle accident. The person injured - and let me assume the person injuring, were both drivers on holiday, and using Holdens, and they crash in this other jurisdiction which has road laws modelled under an Aus-Aid project on New South Wales'. They come back home after the holiday, and the one in plaster sues the other saying, in answer to the fact that New South Wales is a clearly inappropriate forum, no, not all. We all live here and the New South Wales court will not, this time, have any particular difficulty understanding the fact of the rules of the road or the law of negligence, it is a common law jurisdiction. We have lost our common law, but your Honour has not yet lost all the lore of it.
That would not be a clearly inappropriate forum necessarily. It may be, it may not be. If the first condition of Phillips v Eyre were to be applied in a manner that it appears to have been understood, the low and behold that plaintiff finds themselves having to get back on the plane to go back to the other territory in order to sue, denying a New South Wales resident, ironically a New South Wales taxpayer probably, a remedy in a New South Wales court against a New South Wales person because a law is given, conceptually as it were and just for them, an extra-territorial effect it does not have on its face, indeed so palpably so, that the plaintiff cannot even benefit from the scheme.
HAYNE J: Then we are back to the whole of the guest passenger examples that we are all familiar with.
MR WALKER: Yes.
HAYNE J: Hard cases can always be invented in this area.
MR WALKER: We volunteer that cases on boundaries will always be very close to a case on the other side of the boundary, and that is the nature of the line. However, that tests the question whether there is a principle in the first condition which is either found by the common law or serves the interests of justice and, in our submission, there is not.
There would be if the first condition had to do with what I will call matters of policy which can, by a court, be determined without running into the difficulties of the third arm of government administering international relations, or, what I will call "general public policy", and that the court has a ready made armoury of such criteria in, for example, the matters that Justice Gummow has raised and to which we have referred in relation to international human rights norms.
It may be that there is a slightly broader matter in terms of perpetration of injustice or offensiveness to the policy of the forum in cases such as by way of very broad an inexact analogy, the equitable discretion to refuse an injunction in order, for example, to prevent further public debate about confidential information in the political sphere.
GLEESON CJ: How long do you think you will be?
MR WALKER: About 40 minutes, I think, your Honour.
GLEESON CJ: We will give you 10 minutes for your submissions in-chief, Mr Walker, because we want to ensure that Mr Margo has ample time for his submissions and you have ample time for your reply.
MR WALKER: May it please, your Honours. Your Honours, a reference to a kind of case where there would be nowhere to go - I think Justice Gaudron raise it and Justice Hayne I think also raised it - is found in Voth 171 CLR 558 at the bottom of the page. Returning then to what was said in Phillips v Eyre - I have already referred to Dobree v Napier. Reg v Lesley, as the facts there demonstrate, even more piquantly point out the territoriality of the principle being applied by Mr Justice Willes in the second condition which was up for decision.
The territoriality is there identified by the fact that what was justifiable in Chile, namely, the taking on board of Chilean citizens to be exiled lawfully by their government, did not turn into a tort actionable in England until they passed the line dividing Chilean waters from the high seas. At that point and not before there was a tort. It was justifiable in the place it was done by the Chilean law. It was not justifiable thereafter. In our submission - of course, that was the law of the flag. It was an English flag ship. In our submission, that identifies that the authorities that Mr Justice Willes had in mind were authorities where territoriality determined the law and the law determined the substantive rights which would be then enforced by the law of England.
That is inconsistent with the notion that unless the law of England permitted the action there could be no action. That would destroy it entirely.
KIRBY J: What was the name of that case and the reference?
MR WALKER: That was Reg v Lesley and it is the second of the cases that his Lordship refers to on page 29, your Honour. It is footnote 5, 29 LJ 97.
McHUGH J: Well, Mr Walker, having now read the judgment - the whole of it for the first time in my life instead of the usual 28 to 29, I think there may be some substance in what you have been putting but it does seem to me it is a very confused judgment.
MR WALKER: I have no brief to say otherwise, your Honour. It is a curate's egg, with great respect to his Lordship. There are parts of constitutional law which could well be embraced. There are parts of constitutional law which may give rise to eyebrows elevated.
KIRBY J: What is its authority in this Court save for the fact that it is a reference that has been cited repeatedly? I mean, it is not in any way binding on this Court. We have taken an awful lot of time on it, instead of looking, in a sense, conceptually, at what the common law of this country is.
MR WALKER: Well, conceptually, we advance the territoriality principle which found favour in Pfeiffer and for the reasons, bar the federal ones, which found favour in Pfeiffer, which is one of the reasons we have referred several times to paragraph [92] in Pfeiffer. Conceptually, we do rely upon the principle to be found on the first half of page 28 in Phillips v Eyre. Those are principles and concepts which have to do with attributing to a transaction or dealing or occurrence the legal consequences imposed by the law of the place where it happened, as giving a single point of reference, regardless of what might be the adventitious location of where action on it is brought.
GUMMOW J: I do not think one gets much further by reading Phillips v Eyre in the Queen's Bench either.
MR WALKER: No. Phillips v Eyre in the Queen's Bench is quite uninformative, with respect, as to how the matter comes - that is why we have not gone to it.
McHUGH J: The confusion in my mind is why his Lordship introduces the second test at all because if you read the whole of page 28 and the first condition, the more natural reading is that he was really saying that you sue on the liability that arises in the foreign jurisdiction, subject to a policy question as to whether or not that wrong would be actionable in England. But then, as against that, he then introduces this second limb about it must not have been justifiable "by the law of the place" where it was done. Well, if you are suing under the first limb on the foreign tort and liability, why is there any need to refer to the second?
MR WALKER: Well, it is what we call the first condition, that there was absolutely no need to refer to, because it did not arise in that case at all.
GAUDRON J: And does not arise in this case.
MR WALKER: It does not arise in this case. But it is the existence of that - I do not have time to go to it; it is in our written submissions. Thompson v Hill, by means of the first condition, as I call it, because that is Mr Justice Willes's expression, has the first condition turning the character given by the place of the wrong into lex fori governs and the place of the wrong becoming irrelevant. One cannot read Mr Justice Willes as intending that.
GAUDRON J: But this Court did much the same, did it not?
MR WALKER: It did, your Honour.
GAUDRON J: In McKain v Miller and - - -
MR WALKER: The sequence from Koop v Bebb through to McKain v Miller and Stevens v Head unquestionably contains the same law being spoken about from the same authorities by a Bench which was not always differently composed and changing nomenclature from lex fori through to lex loci delicti, I will not say unremarked - it was certainly remarked in Pfeiffer - but in a way which illustrates how self-defeating the first condition is if applied literally. It would not be self-defeating if it is read down in a policy way. Now, the one clue that what was not being decided in that case did have a narrower policy application can be perhaps found in the nature of the arguments and issues which were then argued in The "Halley".
Could I quickly take your Honours to Sir Robert Phillimore at first instance in The "Halley".
KIRBY J: This is developed at some length in your written submissions.
MR WALKER: Yes, it is, so I will be able to do it quickly.
GUMMOW J: What is the substance of it, the essence of it?
MR WALKER: The essence of it is that the way in which his Honour decided the case was to say that the English law in question was, and I quote, actuated by "considerations" - this is at page 13, at the foot:
of British policy, which apply to British waters and territory, but not to the Flushing Roads, in which this collision took place.
Now, that is paragraph [92] of Pfeiffer and, in our submission, it is of some significance that it was not just the common law, but also, as was pointed out by the Privy Council, the then form of the Merchant Shipping Act which said that for British ships in British waters, compulsory pilotage meant no claim against that ship. The Admiralty judge points out that there is at least another view of the policy which would make that highly questionable, namely, why deny the innocent cargo owner, why give an incentive to the ship's captain to be entirely passive, when there is a compulsory pilot? And one finds that at page 15 of Sir Robert Phillimore's judgment, commencing in the passage, "I will frankly say", where it can be seen that in a manner which is simply not addressed by the Privy Council at all - - -
GUMMOW J: Well, how would you fit The "Halley" into your preferred theory as to how the law should be?
MR WALKER: The "Halley" at first instance fits entirely. It is determined in accordance with the law of the place where the conduct took place determining the rights between the parties.
GUMMOW J: But if the Privy Council decision was to be supported, how could it be supported under your theory? How would it fit?
MR WALKER: It could not, it cannot.
GAUDRON J: It cannot easily fit with the common understanding of Phillips v Eyre, can it?
MR WALKER: No, it destroys Phillips v Eyre because it destroys the reality of giving to a wrong its character derived from the law of the place from where it was engendered. The "Halley" destroys - that is why the first condition works against the second condition. The "Halley" - Privy Council - destroys Phillips v Eyre second condition entirely, and the second condition is that which provides the ratio on the first half of the page 28 of that judgment.
Your Honours, now could I refer in particular, without taking your Honours to it, the distinguishing by Sir Robert Phillimore was repeated by this Court in Pfeiffer, of the cases which were relied upon in The "Halley", in particular as to The Amalia which was relied upon by counsel who succeeded, eventually, in The "Halley".
Of all the cases cited by the Privy Council - your Honours have heard this before from me I am afraid - none involved foreign torts except two. Of those two, namely The Ida and The Amalia, The Ida was a case where Dr Lushington refused to entertain jurisdiction between a Danish ship owner and a Turkish cargo owner for a collision on The Danube, and that is all it says, and it says nothing about choice of law or double actionability.
The Amalia, is a case where the matter was determined by a statute held, as a matter of interpretation, positively to bind the local court. A principle which simply says that Parliament made law, trumps, judge made law, the matter which applies in this Court as well, and a matter which is of no moment when one considers the selection of the common law choice of law rule.
It is in that common law method, to answer by extension the question your Honour Justice Kirby asked me earlier, that there is some point going back to the earlier cases whose names have been repeated time and time and time again to see that as a matter of principle they did not decide what they have been considered to decide or, if they did decide that, they did it in on grounds which cannot be justified, first, as stare decisis in their own technique or, second, as a matter of the proper reading as a matter of principle of the authorities upon which they were founded.
It is for those reasons, in our submission, that properly understood The "Halley" in the Privy Council ought now be treated by this Court as not deciding the choice of law rule and as not proposing a general double actionability rule - it does not of course in terms do any such thing - and as being contrary to the general consideration advanced in paragraph [92] of Pfeiffer. That is why The "Halley" in the Privy Council goes. Your Honours should then, in our submission, use The "Halley" at first instance for what is, in our submission, its illuminating exposition of territoriality as the principle which ought to govern subject to the matters that might come about in a safeguard exception not to be adjudicated in this case for want of facts or occasion.
All of that fits within Tolofson v Jensen in the Supreme Court of Canada, unquestionably a federal jurisdiction, but where the - - -
GAUDRON J: Could I just ask you a question about that. Is the decision in Tolofson related to intranational torts? I did not understand it to be so confined.
MR WALKER: No, it is not in terms.
GAUDRON J: And it does away with double actionability in toto, does it?
MR WALKER: Yes, it does. The particular passages in [1994] 3 SCR are 1049c to 1048h - this is in the judgment of Justice La Forest - and 1050h to 1052d. Your Honours are familiar with those passages. I will not take your Honours to them. In our submission, those passages bespeak questions of general principle which cannot in terms be seen to depend only on federal matters. Indeed, though Federation is of course mentioned, there is also reference to comity internationally.
In our submission, the same is true of paragraph [92] in Pfeiffer. That is not peculiarly federal. Schematically, all of this then gets pulled together, in our submission, by observing that it entirely fits with the concern of this Court in Voth v Manildra, for what was said to be fundamental, namely, choice of law, and what was said in that case to be a matter determined substantively, as a matter of New South Wales law, according to the law of the place of the wrong, ultimately as found Missouri.
There is, thus, a consistency, including the case where the matter we have ventilated was regarded as not requiring examination. In our submission, upon examination the first condition is one which cannot be supported and thus Justice Stein's use of Mr Justice Clarke's reading of the first condition in Thompson v Hill is to be seen as having been an error.
McHUGH J: Well, can I just put this to you. Because it is an interlocutory application for a stay, in some respects not unlike an application for an interlocutory injunction, why is there any necessity for a determination to be made as to what is the applicable law?
MR WALKER: Only to the same extent as there is a necessity to determine where the events took place, to determine determine whether there are courts in that country, to determine where witnesses live, et cetera. In other words, one has to do it though one may do it more or less either provisionally or without needing to conduct, as it were, a State trial into all the matters. So, quick and dirty, if I can use that expression, but nonetheless adjudicating on the matters that call, according to ordinary principle, to be looked at in an inappropriate or clearly inappropriate forum case. That does call to be determined, it is fundamental, said this Court.
CALLINAN J: Mr Walker, one final matter in relation to French law, and the material may not disclose it, is there any contributory negligence rule in France or in French law?
MR WALKER: Not in terms, no, your Honour. I am instructed there is a form of apportionment, but I cannot take it further than that and I should not give evidence from the Bar table. I promised my friend in relation to evidence from the Bar table that I would make it clear to your Honours that the copies supplied in accordance with what I said this morning of an English translation of the civil code, Chapter 2 Delicts and Quasi Delicts, was not intended to be - hope it is not taken as an irregular attempt to put evidence before the Court. It is given to your Honours in answer to questions raised by your Honours.
CALLINAN J: It is not agreed, then, that we can look at that or it is agreed?
MR WALKER: So far as we are concerned, your Honours - - -
CALLINAN J: I am sorry, Mr Walker, we cannot hear you.
MR WALKER: We are content that your Honours look at it. I do not know whether it is agreed.
MR MARGO: There are no objections to your Honours looking at it. We would resist any suggestion that.....the evidence in this Court.
CALLINAN J: Which, I am sorry, Mr Margo? I cannot hear you, I am sorry, Mr Margo.
McHUGH J: You have to go to the microphone.
MR MARGO: We have no objection at all to your Honours looking at it, but we would resist any suggestion that the evidence is being enlarged by consent in this Court.
CALLINAN J: We cannot look at it then, can we? The only purpose in looking at it would be to find out what French law is and, as Justice McHugh points out, that is a question of fact, is it not? Is that not right? I do not want to be uncertain about this. I do not want to look at something that we should not be looking at and it is of no utility to us.
MR MARGO: It could be a utility to your Honours in considering policy questions.
CALLINAN J: All right. Well, I do not understand.
MR MARGO: If it came to the question of what was before the Court of Appeal and what was before the primary judge when they gave the weight they did to French law, we would want to rest on the evidence as it was in the courts below.
McHUGH J: There is nothing in the materials about French law as to causation which may well be a vital element. The issue of causation may be a fundamental element in this particular case I would have thought.
MR MARGO: I do not know if your Honours have had a chance to look at our submissions but we just rest on the fact that it is presumed that the French law would be the same as our law in the absence of proof by the party relying on it to the contrary.
GLEESON CJ: We will resume at 11 o'clock tomorrow morning. We will hear you, Mr Margo. We would like you, Mr Margo, and you, Mr Walker, to make an agreement between yourselves as to an apportionment of the time that will be available between 11 o'clock and 4.15 tomorrow. If you find yourselves unable to make that agreement, we will make one for you, but you have the first opportunity. We will adjourn, now.
MR WALKER: I think your Honour is talking in the jurisdiction of wrongs rather than contracts on that.
GLEESON CJ: Yes. We will adjourn, now, until 11 o'clock tomorrow morning.
AT 4.26 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 9 AUGUST 2001
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/HCATrans/2001/335.html