Anderson v Eric Anderson Radio & TV Pty Ltd

Anderson v Eric Anderson Radio & TV Pty Ltd - [1965] HCA 61 - HCA 1965 case summary — Zoe

[25]

Leaving aside for the moment what I have called the new submissions, it seems to me that in this case we ought to apply the principle enunciated by Willes J. in Phillips v. Eyre [1] , and that the learned judges of the Supreme Court were right in holding that it entitled the defendant to succeed. The principle as it operates in New South Wales may be expressed by saying that where in a court of the State a claim is made for damages for a tort alleged to have been committed elsewhere, e.g. in the Australian Capital Territory, two conditions must be satisfied before the claimant can succeed, namely that the conduct complained of was of such a character that it would have been actionable if it had occurred in New South Wales, and that the conduct was not justifiable by the law of the other country. In the present case we are concerned with the first condition. As was mentioned in Koop v. Bebb [1] , in the United States it is not a condition which is recognized as valid: see also Western Union Telegraph Co. v. Brown [1] and cf. The Titanic [2] , Corpus Juris Secundum, vol. 15, art. 12, pp. 896 et seq., vol. 65, art. 177, pp. 856, 857; and its persistence in English law has been cogently criticized by text-writers. The whole subject may perhaps need to be re-examined some day, but we would not be justified in calling into question a doctrine upon which the courts both in England and in this country have acted for almost a century unless, at least, in a case in which it has been directly challenged and made the subject of full argument. In this appeal the correctness of the doctrine in English law has not been questioned, and I think we must proceed on the basis that it is sound here unless considerations peculiar to this country displace it. The application of it in the present case involves the following steps. The wrong complained of consisted of negligent conduct of the defendant which, combining with a lack of due care by the plaintiff for his own safety, caused damage to the plaintiff. Such conduct of the defendant, if it had occurred in New South Wales, would not have constituted an actionable wrong in that State, for the law of the State knows no action for breach of a duty of care save one for damage which results from the breach without being contributed to by a lack of reasonable care on the part of the party who has sustained the damage: see the definition of actionable negligence formulated by Brett M.R. in Heaven v. Pender [3] . As Lord Ellenborough said in Butterfield v. Forrester [4] , the two things must concur: negligent conduct on the part of the defendant, and "no want of ordinary care to avoid [its consequences] on the part of the plaintiff". The reason is that breach of a duty of care is not actionable unless it is a cause of injury to a person to whom the duty was owed, and a plaintiff's contributory negligence is considered to make the defendant's negligence not relevantly operative as a cause of the damage to which they both contributed. It is because this is the nature of actionable negligence that at common law contributory negligence might be set up under a plea of the general issue: where there is contributory negligence there is no actionable wrong - no wrong for which judgment in an action may be recovered; though, as I have recognized in Curran v. Young [1] there is a wrongful act, one that is "tortious" in the sense of being legally unjustifiable because done in breach of a legal duty. The change which s. 15 of the Ordinance has effected in the Australian Capital Territory is, therefore, to make actionable in the Territory a wrong which would not have been actionable in New South Wales if the relevant events had happened there.

[34]

The argument proceeds, however, to point out that to a grant of federal jurisdiction to a State court certain consequences are attached by statute. A consequence of general importance is that by virtue of s. 73 (ii.) of the Constitution an appeal may be taken directly to the High Court. But the consequence which is seized upon by the appellant's argument here is that the provisions of ss. 79 and 80 of the Judiciary Act must be given effect, so far as material, in the ascertainment of the law to be applied in deciding the case. By s. 79 the laws of each State are made binding on all courts exercising federal jurisdiction in that State in all cases to which they are applicable, except as otherwise provided by the Constitution or the laws of the Commonwealth; and by s. 80, so far as the laws of the Commonwealth are not applicable or are insufficient, the common law of England as modified by the Constitution and by the statute law in force in the State in which the court is held is to govern all courts exercising federal jurisdiction so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth. To give effect to these provisions in the present case (the argument proceeds) it is necessary to turn to those laws of New South Wales which are found in covering cl. 5 in the Commonwealth of Australia Constitution Act, to s. 118 of the Constitution itself, and to s. 18 of the State and Territorial Laws and Records Recognition Act 1909-1964 Cth, and the effect of those laws is that a court exercising federal jurisdiction in New South Wales is required to treat as part of the law of the State the provisions of s. 15 of the Law Reform (Miscellaneous Provisions) Ordinance of the Territory. Covering cl. 5 makes binding on the courts, judges and people of every State all laws made by the Parliament of the Commonwealth under the Constitution. It is said that s. 12 of the Seat of Government (Administration) Act 1910-1963 Cth is such a law, and that therefore all courts are bound by its provisions to hold that s. 15 of the Ordinance has the force of law in New South Wales in relation to events occurring in the Territory. We may put aside s. 118 of the Constitution, for its requirement that full faith and credit be given throughout the Commonwealth to inter alia the laws and the public Acts of every State has no application to the laws and public Acts of a Territory. Section 18 of the State and Territorial Laws and Records Recognition Act, however, requires that inter alia all "public acts" of any Territory shall have such faith and credit given to them in every court as they have by law in the courts of the Territory from whence they are taken. The appellant reads "public acts" as wide enough to include an Ordinance of a Territory, and for the purposes of this appeal this may be assumed. It is said that this provision produces a result similar to that which the argument attributes to covering cl. 5.

[43]

The appellant, however, contends that these principles have no application in the circumstances of the present case. As I understand it the argument is based primarily upon the assertion that the District Court was exercising federal jurisdiction in entertaining the appellant's action and that, therefore, these principles do not apply. I confess to considerable difficulty in seeing that even if this were so the appellant would be entitled to succeed but I shall return to this aspect of the case at a later stage. The contention that the District Court was exercising federal jurisdiction proceeds from the proposition that the appellant's initial right of action was the creature of a law made by the Parliament of the Commonwealth, that his claim for damages, therefore, answered the description of a matter "arising under any laws made by the Parliament" (The Constitution, s. 76 (ii.)) and that the effect of s. 39 (2) of the Judiciary Act was to invest the District Court of the Metropolitan District with jurisdiction in that matter. The plaintiff's right was said to arise under the Seat of Government Acceptance Act 1909-1938, s. 6 (1) of which provided that subject to that Act, all laws in force in the Territory immediately before the proclaimed day should, so far as applicable, continue in force until other provision was made. The operation of this section was not relevantly affected by s. 3 of the Seat of Government (Administration) Act 1910-1947 and it is contended that it was by virtue of the earlier provision, as modified by cl. 15 of the Ordinance, that the appellant's claim was actionable in the Australian Capital Territory. The effect of s. 6 (1) of the Seat of Government Acceptance Act was to continue in force in the Territory all laws which were in force there before 1st January 1911 and it is necessary to determine with some degree of precision what the previous relevant law was. It was, in substance, a law which vested in a person injured by the negligence of another a right to recover damages unless it was proved that he had been guilty of contributory negligence. But this right was one which immediately prior to 1st January 1911 could be enforced only in the courts of New South Wales. The courts of New South Wales, however, in 1911, ceased to have the jurisdiction which they had formerly exercised in relation to the territory which had become the Australian Capital Territory and, after 1st January 1911, they exercised jurisdiction there only to the extent provided by the laws of the Territory. As far as the jurisdiction formerly exercised by the Supreme Court of New South Wales was concerned, s. 8 of the Seat of Government Acceptance Act 1909 provided that until the Parliament should otherwise provide, the High Court and the Justices thereof should have, within the Territory, the jurisdiction which immediately before 1st January 1911 belonged to the Supreme Court of the State and the Justices thereof. Further provision was made by s. 30B of the Judiciary Act 1927 which enacted that the High Court should have, in relation to the Territory for the Seat of Government, the same original jurisdiction, both civil and criminal, as immediately before 1st January 1911 the Supreme Court of the State of New South Wales had in relation to that State. This section was repealed in 1933 by the Seat of Government Supreme Court Act. This Act created the Supreme Court of the Australian Capital Territory and vested in it the same original jurisdiction, both civil and criminal, as immediately before 1st January 1911, the Supreme Court of the State of New South Wales had in relation to that State. As for inferior courts provision was made by s. 11 of the Seat of Government (Administration) Act 1910 for the exercise of jurisdiction by the courts of the State subject to any Ordinance made by the Governor-General and in 1940 the Court of Petty Sessions Ordinance, which made provision for the establishment of Courts of Petty Sessions within the Territory, provided that the jurisdiction, conferred by s. 11 of the Seat of Government (Administration) Act on the several inferior courts of the State of New South Wales, should, by force of the Ordinance, be determined.

[54]

The respondent, a company resident and carrying on business in New South Wales, was, according to the law of New South Wales, a person liable to be sued in the District Court in Sydney. That Court, in which the appellant brought his action, was thus a proper forum, if, having regard to the rules of private international law applicable, the case is one that a New South Wales court could properly entertain. The rules applicable are derived from the well-known statement of Willes J. in Phillips v. Eyre [(1)] , concerning the jurisdiction of English courts in cases concerning foreign torts. These rules have been held to be applicable in Australia in a conflict between the laws of two States. And, subject to any overriding valid federal law, they are equally applicable when there is a conflict between the laws of a State and of a Territory. "As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England Secondly, the act must not have been justifiable by the law of the place where it was done" [(2)] . This passage has been the subject of much discussion and criticism by textbook writers. It is the second branch, expressed by the phrase "not justifiable", that has come in for most comment. The word "justifiable" there may be an echo of Lord Mansfield's statement in Mostyn v. Fabrigas [(3)] , that "whatever is a justification in the place where the thing is done, ought to be a justification where the cause is tried" - a statement that is far from supporting the meaning given the word "justifiable" in Machado v. Fontes [(4)] . And this Court said in Koop v. Bebb [(5)] that it seems clear that the last word has not been said on the subject of that decision. Certainly it has not been said by academic authors whose comments are vigorous if not unanimous. But these difficulties need not concern us in this case. The conduct of the respondent, on which the action was founded, was not justifiable in the Australian Capital Territory, where it occurred. It was wrongful there. The matter important in this case is thus the first condition, expressed to be that the tort sued upon is of such a character that it would have been actionable if committed in New South Wales.

[59]

In Holdsworth, History of English Law (vol. 15, p. 336) it is said of the nineteenth century development of private international law that "For the clashing theories and dicta of professors there was substituted the authority of leading cases. The sphere of speculation at large was limited to cases not covered by authority". There are still areas not covered by authority, areas in which academic theory and speculation, interesting and indulged in, are aiding the development of the law. But professorial dicta continue to clash: and statements of what the rule is and of what it might be, or in the opinion of the particular writer ought to be, tend sometimes to be confusing. It is to authority that we are bound to look. And authority that we should follow does, I think, show that, under our system of private international law as it stands at present, a court that entertains an action based upon a foreign tort must (unless there be a statute to the contrary) decide the rights of the parties as it would in an action based on a similar event occuring within its own domain. That seems to me to accord with what Selwyn L.J., speaking for the Privy Council, said in The Halley [(1)] , the case that is for us the real foundation of the rule: "it is, in their Lordships' opinion, alike contrary to principle and to authority to hold that an English court of justice will enforce a foreign municipal law and will give a remedy in the shape of damages in respect of an act which, according to its own principles, imposes no liability on the person from whom the damages are claimed". When in Koop v. Bebb [(2)] this Court spoke of "the rule of private international law which defines the conditions of civil liability" in one State for an act done in another, the reference was not, as I read the judgment, merely to the entertaining of an action but also to the substantive law for determining liability in an action. I may add that some text writers state this as the correct view after considering what its critics have said. Professor Falconbridge does so in the second edition (1954) of his Conflict of Laws (p. 812). And Doctor Wolff puts it all in a sentence: "To sum up: the orbit within which the lex loci delicti is operative is very limited; it is restricted to the question: is the act that caused the damage justifiable? All other questions must be answered by the (English) lex fori ": Private International Law, 2nd ed. (1950) p. 493.

[61]

I turn therefore to the present case: was the wrong one that, by the law of New South Wales, would have been actionable if committed in New South Wales? One view is that, because the appellant was guilty of contributory negligence, there never was an actionable wrong. On that view the appellant in theory never got over the threshold of the New South Wales Court. Another view is that the appellant's complaint was of a wrong actionable by the law of New South Wales; that his case was thus one which that Court could properly try and which was to be tried by applying the municipal law of New South Wales: that on that basis its judgment was properly for the defendant, the plaintiff's claim having been defeated by his contributory negligence. In one sense it does not matter, if the case be regarded simply as one of the conflict of laws, which of these two views is correct. On either the appellant's action should have failed. But the distinction has some bearing on later aspects of the argument. I therefore shall briefly consider it. Is it correct to regard an absence of contributory negligence on a plaintiff's part as an ingredient in the tort of which he complains, an element that is in a cause of action for negligence? That can perhaps be maintained if the common law of contributory negligence be explained simply in terms of causation. Sometimes it has been. Bowen L.J., for example, said in Thomas v. Quartermaine [(1)] : "It rests upon the view that though the defendant has in fact been negligent, yet the plaintiff has by his own carelessness severed the causal connexion between the defendant's negligence and the accident which has occurred; and that the defendant's negligence accordingly is not the true proximate cause of the injury. It is for this reason that under the old form of pleading the defence of contributory negligence was raised, in actions based on negligence, under the plea of "not guilty" ". A plea of the general issue sufficed because, as stated in Bridge v. Grand Junction Railway Company [(2)] it negatived the allegation that the damage was caused by the defendant's negligence. But this seems to depend upon a special conception of the potency of one element in a causal complex: see Henwood v. Municipal Tramways Trust (S.A.) [(3)] . And it is beyond dispute that the onus of establishing contributory negligence is on the defendant. In some cases that onus may be discharged in the plaintiff's own account of the happening that caused him harm: see Wakelin v. London and South Western Railway Co. [(4)] ; Williams v. Commissioner for Road Transport and Tramways (N.S.W.) [(5)] . But the onus is always on the defendant and it seems to me, therefore - and without entering further upon the much discussed topic of the rationale of the law of contributory negligence and the doctrine of last opportunity - that an allegation of contributory negligence is a matter of defence, more in the nature of a plea in confession and avoidance than of a traverse. The judgments given recently in this Court in Curran v. Young [(1)] , contain much that is directly in point. In the seventh edition (1958) of Dicey it is said (p. 959), less explicitly than in the previous edition, that "on the customary interpretation of the rule" (scil. the English rule concerning foreign torts) "any defence which is valid under English law is available to the defendant, although it is not accepted under the lex loci delicti, and conversely any defence which is valid under the lex loci delicti is also available to him, irrespective of the lex fori, unless it is a procedural defence. This applies to common law defences". Contributory negligence is referred to as an illustration. I have noticed that Professor Glanville Williams in his work Joint Torts and Contributory Negligence (1951) at p. 339 says that where an action in respect of a foreign tort is brought in England, questions of contributory negligence are governed by the law of the place of the wrong. But this seems to be incautiously stated by that learned author; for in support of it he cites passages from Rabel, Conflict of Laws and Hancock, Torts in the Conflict of Laws in which, as I read their works, both writers were dealing with the position in the United States, where the substantive law by which liability is determined is the law of the place of the wrong.

[64]

The first proposition was that the District Court was exercising federal jurisdiction. Even if this were so, I do not see that it would decisively advance the argument. But was it so? A court invested with federal jurisdiction by s. 39 of the Judiciary Act has a capacity to adjudicate in matters arising under any law made by the Commonwealth Parliament. It then acts, using the words used in Lorenzo v. Carey [(3)] "as the judicial agent of the Commonwealth". Federal jurisdiction depends upon the grant by Commonwealth law of a power of adjudication rather than upon the law to be applied in adjudicating. Federal and State jurisdiction may overlap and be exercised concurrently. But a State court does not exercise federal jurisdiction whenever it has to apply or take into consideration some law made by the Parliament of the Commonwealth as part of the body of law that binds it. Every Australian court, State or federal, is bound by all laws validly made by the Parliament of the Commonwealth: see the Constitution covering cl. 5. The argument that the District Court was exercising federal jurisdiction in this case was based upon an assertion that the case before it was a matter arising under a law made by the Commonwealth Parliament. But that, it seems to me, is a mistaken view. The appellant sued upon a cause of action known to the law of New South Wales. True it is that, by the law of New South Wales, he could only prosecute his action successfully if the defendant's conduct were wrongful where it occurred, that is in the Australian Capital Territory; and that therefore the New South Wales Court must notice what the law there was. But, let it be assumed that the law there was to be found in a law made by the Commonwealth Parliament - that does not mean that the matter before the New South Wales Court arose under a law of the Commonwealth Parliament. It arose under the law of New South Wales. The obligatio theory, as expounded by Holmes J. in the United States, has been said in Koop v. Bebb [(1)] to be not part of our law. Moreover, notwithstanding the great names that can be arrayed in support of that theory, I would be inclined, if we had to determine juristic fundamentals, to say with diffidence and humility that the rather different view taken by Judge Learned Hand and others seems to me preferable. However that may be, the proposition that the District Court was exercising federal jurisdiction fails.

[66]

But the appellant's main argument was not necessarily founded on that proposition. He based it also upon a view of the superiority of federal law over the law of a State, a proposition that he contended was supported by references to the full faith and credit requirement of the Constitution s. 118, the State and Territorial Records Recognition Act 1901-1964, s. 18, covering cl. 5 of the Constitution and other matters. But much of this seemed to me to involve a misconception. The laws of the Commonwealth are not a transcendent system of jurisprudence supernally hovering over the laws of the States. Where a State law is inconsistent with a valid Commonwealth law, the latter prevails. That is all. No inconsistency occurs here. The Ordinance that is in question is, upon its proper construction, directed only to the trial in the courts of the Territory of actions properly triable there. It is the law of the Territory. If it purported to have a wider scope, I would greatly doubt its validity; for, apart perhaps from the power with respect to trade and commerce, I do not know under what head of power the Parliament could legislate in the matter of motor car traffic accidents everywhere in Australia. Nor do I see any power under which it could make the law of negligence uniform throughout Australia, however desirable that might seem. As to the Territorial Records Recognition Act 1901-1964, s. 18, I shall simply quote what was said by O'Connor J. in this Court over fifty years ago: "In the course of the argument it was contended that, since the passing of the Commonwealth State Laws and Records Recognition Act 1901, no proceedings in a State Court can be treated in the Court of another State as proceedings in a foreign Court. In my opinion that Statute has no bearing on the matters under consideration in this appeal. The 18th section, which is the section relied on, is really an evidence section, and does not affect the principles on which the Courts of one State take cognizance of wrongs committed in another State. That principle is well recognized, and may be thus stated. Where an act is wrongful both by the law of the State in which it was committed and by the law of the State in which the wrongdoer is being sued, the action will lie": Varawa v. Howard Smith Co. Ltd. [(1)] .

[68]

What should be done in the present case? The majority of the Supreme Court were, I consider, right in upholding the appeal in that Court and setting aside the verdict of the jury. I have got much assistance from their Honours' judgments. But the learned trial judge had submitted the case to the jury on the assumption that the law to be applied was not the law of New South Wales, but of the Australian Capital Territory. He had directed them carefully. He spoke to them of contributory negligence, but necessarily in a context that would direct their attention primarily to whether the conduct of the plaintiff was such that he should be required to bear some part of the responsibility for the damage. It seems to me that they would be likely to have understood the expression "contributory negligence" to mean, and in the answers they gave to have used it as meaning, something rather different from conduct that would answer that description at common law and defeat an action for negligence. They would scarcely have thought that they had to consider whether the plaintiff had failed, at the critical time, to take proper care and that this had caused the accident, he being thus precluded from recovering damages from the defendant. The meaning of contributory negligence is perhaps not changed by the change in the law resulting from statutory provisions for apportionment of damages. But much has been said on this topic by judges, and their words have had much critical commentary and analysis in textbooks and journals. I refrain from here entering into that discussion. It suffices to say that, in my view, there is an essential philosophic distinction between two concepts, to both of which the name contributory negligence is commonly given. I realize that the common law doctrine has been explained and analysed in a variety of ways. Whatever be the correct view of it, the change made by the statute does, I think, mean that a summing up to a jury must now takes a different form. Apart from anything else, it becomes unnecessary to instruct the jury at all upon the doctrine of the last opportunity. That in this case the jury, if instructed according to the law of New South Wales, might have approached the question of contributory negligence in a different way is not, I think, to be denied. There is a difference between saying that a plaintiff must himself take the blame and saying that it is just and equitable that he bear a share of the blame.

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