Breavington v Godleman

High Court of Australia|1988-07-01|Before: Gaudron JJ, O'Bryan J, Beach JJ

The application of the rule in Phillips v. Eyre viewed in this way would preclude the plaintiff from recovering damages for loss of earnings or of earning capacity in the Victorian action because damages under that head are not recoverable under Northern Territory law. In order to reach a contrary conclusion it would be necessary to treat the heads of damage under which recovery can be made as having nothing to do with the character of the wrong actionable under the lex delicti and as going only to the measure of compensation, that is to say, as a matter of procedure rather than as a matter of substance. Whilst the line between procedure and substance may sometimes be elusive, in a case such as this, where the action is in negligence and damage is the gist of liability, it seems to me that it is not possible to say that the character of the wrong is not altered or diminished under the lex delicti by the exclusion of loss of earnings or of earning capacity from the damages recoverable. Negligent conduct giving rise to damage in the form of loss of earnings or of earning capacity is not a wrong which attracts civil liability in the Northern Territory. The relevant wrong which does attract civil liability is negligent conduct giving rise to damage in the form of pain and suffering (provided no benefit has been received under the Act) but that is not the wrong upon which this action is based whilst the claim for damages for loss of earnings or of earning capacity remains. In other words, the form of damage recoverable governs the nature of the cause of action.

But in Chaplin v. Boys a majority held that it was only a general rule which was laid down in Phillips v. Eyre and that departure from it was justified where the circumstances were such as to make the lex fori the more appropriate law to be applied notwithstanding failure to fulfil the second condition. This desire for flexibility is easily understood in the context of Chaplin v. Boys where the plaintiff and the defendant were both members of the British armed forces stationed temporarily in Malta and the plaintiff was injured in a road accident there as the result of negligence on the part of the defendant. Both the plaintiff and the defendant had returned to England where the plaintiff brought his action. The application of Maltese law would have restricted the plaintiff's damages to financial loss directly suffered and would have excluded compensation for pain and suffering. It was in these circumstances that a majority held that the plaintiff, bringing his action in England, could recover damages assessed according to the law of England not merely as to amount, but also as to the heads under which damage could be recovered. In other words, upon the majority view the special circumstances of the case justified the court in declining to apply the rule in Phillips v. Eyre and in applying English law for all purposes. To apply the Maltese rule would, in that case, have served no interest which that rule was devised to meet, and so it was held that the rule in Phillips v. Eyre, having a flexible application, should not be applied. The flexible application of the rule, which did not receive unanimous support in Chaplin v. Boys, involves a limited application of the proper law of the tort, favoured in most American States, the more certain result of the rule in Phillips v. Eyre being preferred in all but special circumstances.

The rule in Phillips v. Eyre has never been thought by this Court to have a flexible application within Australia and, for my part, I do not think that any benefit is to be gained from so regarding it. The connexion of the parties with a State or Territory in which a wrong is committed in Australia could never be as remote as, for example, the connexion of the parties to Malta in Chaplin v. Boys. This is so because the very fact of federation tends against the view that one State cannot have a significant interest in the operation of its laws upon acts committed within its borders by persons from another State or Territory. The second condition of the rule in Phillips v. Eyre imposes a desirable limitation upon the opportunity for forum shopping and within a federation it would seem undesirable to disregard that limitation even if special circumstances were otherwise thought to exist. Despite the existence of separate jurisdictions giving rise to a conflict of laws, the federation binds together the one country and makes inappropriate an approach which may have some validity in the case of conflict between the laws of different countries. Moreover, within the one country a greater value is to be placed upon certainty than upon the supposed benefits accompanying flexibility.

The rule in Phillips v. Eyre is, however, said to be excluded by the requirement contained in s. 118 of the Constitution. That section provides:

Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State. That provision must be read together with the power given to the Commonwealth under s. 51(xxv) to make laws with respect to "[t]he recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States" and with the State and Territorial Laws and Records Recognition Act 1901 Cth ("the Recognition Act") passed pursuant to that power. Section 18 of the Recognition Act provides: All public acts records and judicial proceedings of any State or Territory, if proved or authenticated as required by this Act, shall have such faith and credit given to them in every Court and public office as they have by law or usage in the Courts and public offices of the State or Territory from whence they are taken.

In Harris v. Harris [16] , Fullagar J. appears to have regarded the Act as merely re-enacting the constitutional provision while extending its application. The extension embraces the public acts, records and judicial proceedings of a Territory, to which the constitutional provision has no application, and is enacted pursuant to the Territories power (s. 122) rather than s. 51(xxv). It is, however, to be noted that s. 18 does not refer to laws or public Acts (as opposed to public acts) as does s. 118 of the Constitution. The correct view seems to me to be that s. 18 in speaking of public acts is referring to public acts of a non-statutory kind so that it does not refer to the laws, statutory or otherwise, in the States or the Territories.

Section 118 of the Constitution does, on the other hand refer to the laws, statutory and otherwise, of the States but omits reference to the laws of the Territories. Section 3 of the Recognition Act provides that judicial notice shall be taken of all State Acts. What may seem initially confusing is to some extent explicable. So far as Acts of the States are concerned, they are covered by s. 118 of the Constitution and no further provision need be made for them save for a mode of authentication. That is provided by s. 3 of the Recognition Act. So far as the legislation of the Territories is concerned, it is dependent for its validity upon the Constitution and, whether it is legislation of the Commonwealth Parliament or that of its delegate, it needs no provision, statutory or constitutional, to ensure its recognition or that it is given faith and credit throughout the Commonwealth. Statute law validly in force with respect to the Territories is part of the law of the Commonwealth and operates according to its tenor throughout the Commonwealth. Of course, for the most part such legislation is not intended to operate upon events or things outside the relevant Territory, but that does not mean that it does not form part of the body of Commonwealth law which is binding upon all persons in the country. No provision for recognition or faith or credit is necessary. So much was explained in Lamshed v. Lake [17] and Spratt v. Hermes [18] .

(1958) 99 C.L.R. 132. 2. (1965) 114 C.L.R. 226.

It must, however, have been felt necessary to provide for the effect of public acts of the Territories as well as their records and judicial proceedings and the result is s. 18 of the Recognition Act. That section might, in view of s. 118 of the Constitution, be thought to have little or no discernible effect with respect to the States, but it does have an operation with respect to the public acts, records and judicial proceedings of the Territories.

Any express requirement that the Northern Territory Motor Accidents (Compensation) Act be given faith and credit would, as I have explained, be superfluous. Its status as an Act of the Northern Territory and thus as a law of the Commonwealth ensures that it receives full faith and credit without any need for a provision to that effect. But to say as much is not to say that it is the law which must determine the issues between the parties in the present case. The Act does not purport to extend the application of its provisions beyond the Northern Territory and, perhaps, it could not validly be expressed to do so for it might then cease to be a law for the government of the Territory. Regarding it as a law of the Commonwealth, and in that sense part of the law of Victoria, does not of itself extend the scope of the Act to give it an application in an action commenced in Victoria notwithstanding that, had the action been commenced in the Northern Territory, the Act would have applied. Its application could only be achieved by means of some rule of Victorian law, that is to say, by a choice of law rule indicating the Northern Territory law as the applicable law in the circumstances. I have already pointed out that the applicable choice of law rule is that in Phillips v. Eyre and have expressed my view that in this case the second condition of that rule is not met.

Notwithstanding that neither s. 118 of the Constitution nor s. 18 of the Recognition Act have any application to the Northern Territory Motor Accidents (Compensation) Act, it is argued that the application of s. 118 to State laws does bring about a regime which displaces Phillips v. Eyre and requires a choice of law of its own. Once displaced in this manner, the argument continues, the rule in Phillips v. Eyre should have no application in Australia, even in relation to the Territories. This is an argument which I cannot accept.

In my opinion, the requirement that full faith and credit be given to the laws of a State, statutory or otherwise, throughout the Commonwealth, affords no assistance where there is a choice to be made between conflicting laws. Once the choice is made, then full faith and credit must be given to the law chosen but the requirement of full faith and credit does nothing to effect a choice. Nor is it to the point to say that the full faith and credit requirement assumes the applicability of a single law. No doubt that is so, but it is to say no more than that where there is a conflict of laws upon a given question a selection must be made before the question can be answered. The conflict rules are based upon the same assumption but they, unlike the full faith and credit requirement, provide a basis upon which the selection can be made. Section 118 of the Constitution is not directed to a conflict of laws; where there is a conflict it makes no choice or, to put it another way, does not require the application of a law which is not otherwise applicable. See Varawa v. Howard Smith Co. Ltd. [19] , per O'Connor J.; Anderson v. Eric Anderson Radio & T.V. Pty. Ltd. [20] , per Windeyer J. No doubt this view tends to confine s. 118 to matters of evidence, but it may be otherwise with judicial proceedings as Harris v. Harris shows and even with State Acts the section may have a substantive effect as indicated in Merwin Pastoral Co. Pty. Ltd. v. Moolpa Pastoral Co. Pty. Ltd. [21] . In that case Rich and Dixon JJ. [22] and Evatt J. [23] expressed the view that s. 118 may preclude the refusal of one State to apply the law of another State on the grounds of public policy where the law of the other State is otherwise applicable. However, if the substantive effect of that section is more limited than expected or hoped for by some, it ought not to be stretched beyond its capacity in order to achieve an end thought upon extrinsic grounds to be desirable. I should add that if that end is that the lex delicti should prevail in every case of conflict in tortious liability, then its desirability is hardly beyond question. A rigid approach of that kind has been tried and found so wanting in the United States as to have led to its abandonment there.

(1911) 13 C.L.R. 35, at p. 69. 2. (1965) 114 C.L.R., at p. 46. 3. (1933) 48 C.L.R. 565. 4. (1933) 48 C.L.R., at p. 577. 5. (1933) 48 C.L.R., at pp. 587-588.

To put to one side considerations of full faith and credit does not dispose entirely of the federal aspects of this case. One of the defendants, the Australian Telecommunications Commission, is an instrumentality of the Commonwealth and, in accordance with the decisions of this Court in Inglis v. Commonwealth Trading Bank of Australia [24] ; Crouch v. Commissioner for Railways (Q.) [25] and Attorney-General (N.S.W.) v. Commonwealth Savings Bank [26] , is sued as the Commonwealth or as a person on behalf of the Commonwealth within the meaning of s. 75(iii) of the Constitution. That is not in dispute. The determination of the issues in this case therefore involves the exercise of federal jurisdiction.

(1969) 119 C.L.R. 334. 2. (1985) 159 C.L.R. 22. 3. (1986) 160 C.L.R. 315.

Section 56(1) of the Judiciary Act 1903 Cth provides that a person making a claim against the Commonwealth, whether in contract or in tort, may in respect of the claim bring a suit against the Commonwealth in the High Court or, if the claim arose in a State or Territory, in the Supreme Court of that State or Territory or in any court of competent jurisdiction of that State or Territory. Under s. 79 of the Judiciary Act the laws of each State or Territory shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable. Section 80 makes similar provision with respect to the common law as modified by the Constitution and by the statute law in force in the State or Territory.

In Suehle v. The Commonwealth [27] , Windeyer J. held that the source of liability of the Commonwealth in contract and tort is s. 56 of the Judiciary Act. Because ss. 79 and 80 bring about the result that when an action against the Commonwealth is commenced in a court of the State or Territory in which the claim arose, as is contemplated by s. 56, the laws of that State or Territory apply, Windeyer J. was of the view that s. 56 requires that the laws of that State or Territory should also apply when the action is commenced in the High Court. Any other view would, by the application of ss. 79 and 80, produce the capricious result that, if the action were commenced in the High Court, the law of the State where the High Court happened to be sitting to hear the claim would apply. Such a result would obviously be inconsistent with the intention lying behind s. 56. There is much to be said for the view of Windeyer J., although it is not beyond controversy that the origin of Commonwealth liability in tort and in contract is s. 56 of the Judiciary Act alone. See The Commonwealth v. New South Wales [28] ; Musgrave v. The Commonwealth [29] ; Werrin v. The Commonwealth [30] ; Washington v. The Commonwealth [31] . In addition to the question whether s. 75(iii) of the Constitution has a part to play in the imposition of liability, there is now the question of the effect of s. 64 of the Judiciary Act in the light of Maguire v. Simpson [32] and The Commonwealth v. Evans Deakin Industries Ltd. [33] . This is a difficult area and one upon which it is unwise to enter unless it is necessary to do so.

(1967) 116 C.L.R. 353. 2. (1923) 32 C.L.R. 200. 3. (1937) 57 C.L.R. 514, at pp. 546-547. 4. (1938) 59 C.L.R. 150, at p. 167. 5. (1939) 39 S.R. (N.S.W.) 133, at pp. 140-142. 6. (1977) 139 C.L.R. 362. 7. (1986) 161 C.L.R. 254.

Section 56 of the Judiciary Act deals specifically with claims against the Commonwealth in contract or in tort and other sections of Pt IX deal with other suits by and against the Commonwealth. But under s. 39 of the Judiciary Act jurisdiction in matters in which the Commonwealth or a person being sued on behalf of the Commonwealth is a party, together with jurisdiction in other matters, is taken from the State courts and revested in them as federal jurisdiction. A comparison between s. 39 and the provisions of Pt IX of the Act, in particular s. 56, fails to yield any conclusion which is completely satisfying. However, it is sufficient if I express the view that, whether s. 56 is the origin of Commonwealth liability in contract or in tort or whether it merely recognizes such liability, it defines (at least so far as State courts are concerned) a jurisdiction in which claims against the Commonwealth in contract and in tort might be pursued. There is no question of the Commonwealth choosing to submit itself to the jurisdiction which the section defines. The section itself subjects the Commonwealth to that jurisdiction and precludes, if the Commonwealth is not otherwise precluded from so doing, any reliance upon Crown immunity when that jurisdiction is invoked. It would be giving insufficient effect to s. 56 to read s. 39(2) of the Judiciary Act as producing the same result, that is to say, to read it as subjecting the Commonwealth to the jurisdiction of the courts of the States in contract or in tort. Section 39(2) is, however, a general section giving jurisdiction to the courts of the States in matters in which the Commonwealth or a person suing on behalf of the Commonwealth is a party. Even if it does not, as I think it does not, subject the Commonwealth to jurisdiction in suits in contract or in tort as does s. 56, there is in my view no reason why the Commonwealth should not in such suits subject itself to the jurisdiction created under s. 39(2) by submitting to it. The creation of liability in contract and in tort by or under the Constitution and the recognition of the Commonwealth by the Constitution as a litigant eo nomine provides, apart from any question of jurisdiction, a sufficient basis for such a submission. Clearly the Commonwealth has submitted to the jurisdiction of the Supreme Court of Victoria in this case.

For the foregoing reasons the appeal should be dismissed.

At the relevant time s. 5 of the Motor Accidents (Compensation) Act 1979 NT ("the Act") read:

(1) Subject to sub-section (2), no action for damages shall lie in the Territory in respect of the death of or injury to a resident of the Territory in or as a result of an accident that occurred in the Territory.

(2) Subject to sub-section (3), nothing in sub-section (1) deprives a person of the right to bring an action for damages for pain and suffering or loss of amenities of life.

(3) A person who has received or has elected to receive a benefit under section 17 shall not commence or continue an action referred to in sub-section (2).

The Act established a no-fault compensation scheme in relation to motor vehicle accidents. To this end it abolished the common law right to sue in the Northern Territory ("the Territory") for damages for personal injury, except as to damages for pain and suffering or loss of amenities of life. By reason of s. 39(1), an award of damages in an action referred to in s. 5(2) may not exceed $100,000. Section 17, read with the Schedule to the Act, identifies particular injuries for which a prescribed percentage of $25,000 is payable. As appears from s. 5(3), a person who takes compensation in accordance with s. 17 loses the right to pursue a common law claim for damages for pain and suffering or loss of amenities of life.

As will be evident from this brief description of the Act, there is, in the case of a resident of the Territory injured as a result of the use of a motor vehicle in the Territory, no longer an entitlement to damages for loss of earning capacity. Compensation for this loss is dealt with in Pt IV of the Act. Section 5 was amended in 1984 so as to eliminate any entitlement to damages under sub-s. (2); but that amendment has no bearing on the present claim.

The appellant, Anthony Breavington, was injured in a motor vehicle collision at Winnellie in the Territory on or about 11 July 1980. At the time he was an employee of the third respondent, the Australian Telecommunications Commission ("Telecom"). He was a passenger in a motor vehicle driven by the second respondent, Charles Taylor Piercy, who was also an employee of the third respondent. That vehicle collided with another vehicle driven by Rodney Godleman, the first respondent.

When the accident occurred the appellant was a "resident of the Territory" as that expression is defined in s. 4 of the Act. The first respondent then resided in the Territory but, at the time of service of the writ of summons issued by the appellant against him and the other respondents out of the Supreme Court of Victoria, he was resident in Victoria. At the time of the accident the second respondent was a resident of the Territory and, it appears, so resided when the writ was served on him.

The question posed by this appeal is whether in the Victorian action the appellant may recover damages from the respondents other than damages for pain and suffering or loss of amenities of life. O'Bryan J. held that the appellant could do so; the Full Court of the Supreme Court of Victoria (Young C.J., King and Beach JJ.) held that he could not. In general the answer to this question depends on whether the appellant's entitlement to damages is to be determined according to the law of Victoria or the law applicable had action been brought in the Territory. It is necessary to speak first in general terms because the position of Telecom as a defendant gives rise to special considerations.

A convenient starting point of this enquiry is to be found in the judgment of Mason J. in Pozniak v. Smith [34] . (It is necessary to make the appropriate substitution of "Territory" for "State".)

The accepted rule is that an action in tort will lie in one State for a wrong committed in another if (1) the wrong is of such a character that it would have been actionable in the State in which the action is brought; and (2) it is not justifiable by the law of the State where it was done (Koop v. Bebb [35] ; Anderson v. Eric Anderson Radio & T.V. Pty. Ltd. [36] ; Boys v. Chaplin [37] ). 1. (1982) 151 C.L.R. 38, at p. 49. 2. (1951) 84 C.L.R. 629, at p. 642. 3. (1965) 114 C.L.R. 20. 4. [1971] A.C. 356.

The rule as enunciated by his Honour derives of course from the judgment of Willes J. in Phillips v. Eyre [38] . Mason J. observed [34] , that the balance of Australian authority favours the view that the reference in the second part of the rule to the lex loci delicti is for preliminary or threshold purposes and that it is the lex fori that determines questions of substance. The relevant decisions include Koop v. Bebb; Anderson ; andKolsky v. Mayne Nickless Ltd. [39] , though each of those decisions repays some analysis to see exactly what it decided. This is a matter to which I shall return.

(1870) L.R. 6 Q.B. 1, at pp. 28-29. 2. (1982) 151 C.L.R. 38, at p. 49. 3. (1970) 72 S.R. (N.S.W.) 437.

The respondents accept that the first condition of the rule as stated has been met; there is no doubt that the injury to the appellant would have been actionable in Victoria. But what of the second condition? The respondents argue that it will only be satisfied if the injury to the appellant gives rise to civil liability in respect of the relevant claim between the parties under the law of the Territory. But, they say, the injury to the appellant does not give rise to any civil liability between the parties in the Territory other than for those damages referred to in s. 5(2) of the Act. The way in which the respondents plead the matter in their defences is that the appellant is "barred" by s. 5(1) from claiming any damages against them other than those mentioned in s. 5(2). Hence, they submit, the "wrong" is "justifiable" by the law of the Territory except as to damages for pain and suffering or loss of amenities of life.

The appellant puts his case this way. The second condition of Phillips v. Eyre is satisfied because the appellant has a cause of action against the respondents according to the law of the Territory. That cause of action lies in damages for negligence for the injuries he suffered, even though the scope of those damages is severely circumscribed by s. 5 of the Act. Thus the preliminary or threshold test, which is essentially as to jurisdiction, is satisfied. The rights and obligations of the parties then fall to be determined in accordance with the law of Victoria as the law of forum. Nothing in the law of Victoria precludes the appellant from recovering damages for economic loss or for any other loss suffered by him as a result of the accident.

Counsel for the appellant acknowledged that this argument, if accepted, leads to the conclusion that a plaintiff's rights will depend upon the jurisdiction in which he sues. But, he said, if a plaintiff brings action in a jurisdiction which is not the "natural or appropriate forum in which that action should be brought", that is a matter to be dealt with at the point where the court assumes jurisdiction. In other words, the doctrine of forum non conveniens can be invoked to prevent a plaintiff proceeding in a jurisdiction which has no sufficient connexion with the cause of action relied upon. This approach, it was said, is more certain than the "flexible exception" approach favoured by Lord Wilberforce in Chaplin v. Boys [40] .

Confusion has long surrounded the true scope of the rule in Phillips v. Eyre. Three views are possible: that the conditions create "a double-barrelled jurisdictional rule, leaving open the choice of law issue"; "a double-barrelled choice of law rule"; or a jurisdictional rule to be found in the first limb, with a choice of law rule to be found in the second. See Cheshire and North, Private International Law, 11th ed. (1987), p. 526. The appellant favoured the first of these approaches, the respondents the second. Once it is accepted that the conditions in Phillips v. Eyre are jurisdictional, it is but a short step to the conclusion that the lex fori determines questions of substance as well as procedure. But are the conditions merely jurisdictional or are they concerned with choice of law? The Australian decisions are not really conclusive on the point.

Koop v. Bebb [41] itself concerned an action brought in the Supreme Court of Victoria on behalf of infant plaintiffs claiming damages under the Wrongs Act 1928 Vict for the death of their father who died in Victoria as a result of an accident in New South Wales. Since the death was actionable in New South Wales under the Compensation to Relatives Act 1897 NSW, on any view of Phillips v. Eyre the action was maintainable in Victoria. There was in truth no conflicts situation; no question arose as to the law to be applied in determining the rights and obligations of the parties.

In Anderson [42] the plaintiff brought an action in the District Court of New South Wales in respect of a negligent act committed in the Australian Capital Territory. This Court upheld the decision of the Full Court of the Supreme Court of New South Wales that the law to be applied was the law of that State. In consequence, because of his contributory negligence the plaintiff's claim failed. Barwick C.J. held that the act complained of was actionable in both the Australian Capital Territory and New South Wales and, applying the lex fori, held that the plaintiff's claim must fail. Kitto J. held that the matter was not actionable in New South Wales, thereby applying the first condition of Phillips v. Eyre and rendering unnecessary consideration of the governing law. Taylor and Menzies JJ. seem to have approached the matter in the same way as the Chief Justice. Windeyer J. was of the view that just because the two conditions of Phillips v. Eyre had been met did not determine the appropriate law to be applied. "Assumption of jurisdiction and choice of law are logically distinct", his Honour said [43] . Windeyer J. then held that the rules being jurisdictional only, the substantive law to be applied was that of the lex fori. He said [44] :

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 occurring within its own domain. Although Anderson was a conflicts situation, the defendant did not seek to rely upon a defence available in the Australian Capital Territory. On the contrary, it relied upon a defence available according to the lex fori. 1. (1965) 114 C.L.R. 20. 2. (1965) 114 C.L.R., at p. 41. 3. (1965) 114 C.L.R., at p. 42.

Kolsky [45] concerned a claim brought in New South Wales arising out of a death in Victoria. In both States there was apportionment legislation except that in New South Wales contributory negligence gave rise to no apportionment in the case of a claim made under the Compensation to Relatives Act. The Court of Appeal held that the wrong complained of would have been actionable if committed in New South Wales and that the contributory negligence of the deceased was "not justifiable" but was actionable according to the law of Victoria. Hence the action must be determined in accordance with the law of New South Wales. Certainly the Court of Appeal regarded the question as one of substantive law - whether in given circumstances an action lies - and not one of jurisdiction for it said [46] "once reference to Victorian law has fulfilled its purpose in this case of enabling it to be decided whether this action is well founded in the Supreme Court of this State, it is no longer relevant".

(1970) 72 S.R. (N.S.W.) 437. 2. (1970) 72 S.R. (N.S.W.), at p. 444.

While the first condition of Phillips v. Eyre is not in contention in the present appeal, some reference to it is helpful to an understanding of the question to be answered. At the same time, if the lex fori is the law applicable to questions of substance, then as Professor Nygh pointed out in Conflict of Laws in Australia, 4th ed. (1984), p. 271:

The lex fori will be applied whether the first condition is a choice of law rule or merely a preliminary question. Lord Wilberforce was surely right when in Chaplin v. Boys [47] , he said: I accept what I believe to be the orthodox judicial view that the first part of the rule is laying down, not a test of jurisdiction, but what we now call a rule of choice of law: is saying, in effect, that actions on foreign torts are brought in English courts in accordance with English law. 1. [1971] A.C., at p. 385.

That conclusion was amply supported by the authorities to which Lord Wilberforce referred [48] , including Koop v. Bebb [49] , and Anderson [50] . See also by way of recent authority, Coupland v. Arabian Gulf Oil Co. [51] . Dicey & Morris, Conflict of Laws, 11th ed. (1987), vol 2, pp. 1366-1367, make this point in relation to Phillips v. Eyre:

Willes J. did not say that the wrong must be actionable by English law; he said it must be of such a character that it would have been actionable if committed in England - a very different proposition. Moreover, he would hardly have cited The Halley [52] as his sole authority for this proposition if he had intended to lay down a rule of jurisdiction since no question of jurisdiction was involved in that case. 1. [1971] A.C., at pp. 385-387. 2. (1951) 84 C.L.R., at p. 644. 3. (1965) 114 C.L.R., at pp. 41-42. 4. [1983] 1 W.L.R. 1136, at pp. 1146-1147; [1983] 2 All E.R. 434, at pp. 443-444. 5. (1868) L.R. 2 P.C. 193.

What does the second condition mean when it says that the wrong must not have been "justifiable" by the law of the place where it was done? Sykes and Pryles, Australian Private International Law, 2nd ed. (1987), pp. 513-516, suggest that this condition is susceptible of four possible interpretations - not legally innocent; civil actionability under the lex loci delicti even if there is no resulting civil liability; some civil liability under the lex loci delicti; civil liability in accordance with the lex loci delicti in the sense that the lex loci determines the extent of liability. The first interpretation is derived from Machado v. Fontes [53] . However Machado v. Fontes has long been the subject of much criticism. The Full Court of Victoria dissented from it in Varawa v. Howard Smith Co. Ltd. [No. 2] [54] . Effectively it may be taken to have been overruled in England by Chaplin v. Boys. It should no longer be regarded as good law in Australia.

It is now time for the second condition requiring "non-justifiability" to be restated. The judgment of Willes J. must be taken in context. The oft-quoted passage [55] is not a statute; too much attention has been given to the word "justifiable", divorced from the setting in which it was used. There is a certain unreality in giving so much operation to one word in a judgment written over 100 years ago in relation to an action for assault and false imprisonment brought against a former Australian explorer who had become governor of Jamaica. It was an appropriate word when considering the effect of an Act of indemnity for what the defendant had done in putting down a revolt. It is far less appropriate in a case such as the one before this Court.

Speaking of the second condition, Lord Wilberforce commented in Chaplin v. Boys [56] :

There can hardly be any doubt that when this formulation was made in Phillips v. Eyre [57] , it was intended to cover the justification by act of indemnity which had occurred in Jamaica - the word "justification" is derived from or at least found in Mostyn v. Fabrigas in a similar context (see particularly [58] ). 1. [1971] A.C., at p. 387. 2. (1870) L.R. 6 Q.B. 1. 3. (1774) 1 Cowp. 161, at p. 175.

It is apparent, when the judgment of Willes J. is read in its entirety, that his Honour was concerned, not with innocence, but with whether civil liability existed as between the parties under the law of the country where the act was done. The passage in which the two conditions appear is on pp. 28-29 of the judgment of Willes J. But the preceding paragraph contains the following:

A right of action, whether it arise from contract governed by the law of the place or wrong, is equally the creature of the law of the place and subordinate thereto. The terms of the contract or the character of the subject-matter may shew that the parties intended their bargain to be governed by some other law; but, 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 from the law of the place, and its character is determined by that law. Therefore, an act committed abroad, if valid and unquestionable by the law of the place, 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. (In passing, it might be noted that Sykes and Pryles, p. 509, describe this passage as "a classic statement of the vested rights doctrine", a doctrine referred to later in these reasons.)

If it be accepted that some regard must be had to the lex loci delicti, the real question is - how much regard must be had? In Koop v. Bebb [59] , Dixon, Williams, Fullagar and Kitto JJ. said:

English law as the lex fori enforces an obligation of its own creation in respect of an act done in another country which would be a tort if done in England, but refrains from doing so unless the act has a particular character according to the lex loci actus. Uncertainty exists only as to what that character must be. The lex loci delicti was rejected by the Court of Appeal in Kolsky and in Schmidt v. Government Insurance Office of N.S.W. [60] . A more flexible approach was taken by the Full Court in Kemp v. Piper [61] . 1. (1951) 84 C.L.R., at p. 644. 2. [1973] 1 N.S.W.L.R. 59. 3. [1971] S.A.S.R. 25.

One thing at least is clear. The vested rights theory propounded by Holmes J. in Slater v. Mexican National Railroad Co. [62] has been rejected and, as Lord Wilberforce suggested, in Chaplin v. Boys [63] : "It can hardly be restored now by anything less than a revolution in thought." A more flexible test was adopted by the New York Court of Appeals in Babcock v. Jackson [64] , viz. application of the law which has greatest concern with the issue raised in the litigation. The objection which has been raised to this approach is that it introduces a considerable element of uncertainty since there are many considerations that may go to satisfy the test of greatest concern. The American cases are discussed in Ehrenzweig, The Not So Proper Law of a Tort, International and Comparative Law Quarterly, vol. 17 (1968) 1.

(1904) 194 U.S. 120. 2. [1971] A.C., at p. 386. 3. (1963) 191 N.E. 2d. 279.

In Koop v. Bebb [65] , Dixon, Williams, Fullagar and Kitto JJ., having referred to earlier decisions in which Phillips v. Eyre had been discussed, tentatively restated the second limb of the rule:

It seems clear that the last word has not been said on the subject, and it may be the true view that an act done in another country should be held to be an actionable wrong in Victoria if, first, it was of such a character that it would have been actionable if it had been committed in Victoria, and, secondly, it was such as to give rise to a civil liability by the law of the place where it was done. (Emphasis added.) 1. (1951) 84 C.L.R., at p. 643.

The reference to "another country" strikes a somewhat discordant note as between the States and Territories of Australia, notwithstanding the observation of Windeyer J. in Pedersen v. Young [66] :

The States are separate countries in private international law, and are to be so regarded in relation to one another. See also Chaff and Hay Acquisition Committee v. J.A. Hemphill and Sons Pty. Ltd. [67] . 1. (1964) 110 C.L.R. 162, at p. 170. 2. (1947) 74 C.L.R. 375, at p. 396.

This restatement has been further developed by Lord Wilberforce in Chaplin v. Boys in terms with which I agree. His Lordship said [68] :

I would, therefore, restate the basic rule of English law with regard to foreign torts as requiring actionability as a tort according to English law, subject to the condition that civil liability in respect of the relevant claim exists as between the actual parties under the law of the foreign country where the act was done. 1. [1971] A.C., at p. 389.

Later English decisions have accepted this reformulation of principle: see Church of Scientology of California v. Metropolitan Police Commissioner [69] , cited in Coupland v. Arabian Gulf Oil Co. [70] : also Armagas Ltd. v. Mundogas S.A. [71] , per Robert Goff L.J.; [72] , per Dunn L.J.

(1976) 120 Sol. Jo. 690. 2. [1983] 1 W.L.R., at pp. 1145-1146; [1983] 2 All E.R., at p. 443. 3. [1986] A.C. 717, at p. 740. 4. [1986] A.C. at, pp. 752-753.

The law in this country is not so well settled as to be beyond reconsideration by this Court. In particular, to say that questions of substance are to be determined according to the lex fori is not necessarily to say that (in the present case) the Supreme Court of Victoria must apply the same principles it would apply had the negligent act been committed in Victoria. Equally it does not follow that the law of the place where the negligent act was committed, in this case the Territory, should simply be disregarded.

A defect of applying the lex fori, in its domestic sense, to matters of substance is that the rights and obligations of the parties may be determined by a law which has no connexion with the events giving rise to the claim and little connexion with the parties themselves. It encourages a plaintiff to resort to a forum (assuming service of the defendant so as to permit resort thereto) expressly for the purpose of avoiding a limitation that exists according to the law of the place where the tort was committed. The present case is a good illustration of this. There is little doubt that action was brought in the Supreme Court of Victoria to avoid the limitation on damages now existing in the Territory. Sykes and Pryles, p. 517, describe the present case, when it was before O'Bryan J., as "a blatant example of forum shopping" in which "Victoria, as a forum, had no interest in applying its law to the facts of the case". Without endorsing any pejorative overtones in this comment, what is said would seem to be correct.

It follows then, on application of the general rule of private international law as stated in these reasons, that the appellant cannot recover, in the action brought in Victoria, damages for loss of earnings or loss of earning capacity for these are damages that are not recoverable under the law of the Territory. It remains to consider whether any qualification to this approach should be adopted. In Chaplin v. Boys [73] , after noting the conflict between the desire for certainty on the one hand and for "flexibility in the interest of individual justice" on the other, Lord Wilberforce introduced a flexible qualification which he expressed in the following words [74] :

The tort here was committed in Malta; it is actionable in this country. But the law of Malta denies recovery of damages for pain and suffering. Prima facie English law should do the same: if the parties were both Maltese residents it ought surely to do so; if the defendant were a Maltese resident the same result might follow. But in a case such as the present, where neither party is a Maltese resident or citizen, further inquiry is needed rather than an automatic application of the rule. The issue, whether this head of damage should be allowed, requires to be segregated from the rest of the case, negligence or otherwise, related to the parties involved and their circumstances, and tested in relation to the policy of the local rule and of its application to these parties so circumstanced. His Lordship continued: The rule limiting damages is the creation of the law of Malta, a place where both plaintiff and defendant were temporarily stationed. Nothing suggests that the Maltese state has any interest in applying this rule to persons resident outside it, or in denying the application of the English rule to these parties. No argument has been suggested why an English court, if free to do so, should renounce its own rule. That rule ought, in my opinion, to apply. 1. [1971] A.C., at p. 389. 2. [1971] A.C., at p. 392.

This flexible approach, although rejected by the New South Wales Court of Appeal in Kolsky [75] , was indorsed by Adam J. in Corcoran v. Corcoran [76] , by Marks J. in Borg Warner (Aust.) Ltd. v. Zupan [77] and by the Full Court in the present case. See also Kemp v. Piper [78] and Warren v. Warren [79] . It is appropriate for this Court to recognize the developments in the common law, especially as reflected in the judgments in Chaplin v. Boys, and to accept that the flexible approach enunciated by Lord Wilberforce is less parochial and can be applied to give appropriate significance to the lex loci delicti and the lex fori in all the circumstances. To recognize the existence of this flexible exception is not to introduce means by which the general rule can be subsumed, as counsel for the appellant suggested. The flexible exception does not confer an unfettered judicial discretion enabling the general rule to be ignored in arbitrary fashion. As Lord Wilberforce recognized [80] :

It will not be invoked in every case or even, probably, in many cases. The general rule must apply unless clear and satisfying grounds are shown why it should be departed from and what solution, derived from what other rule, should be preferred. 1. (1970) 72 S.R. (N.S.W.) 437. 2. [1974] V.R. 164. 3. [1982] V.R. 437. 4. [1971] S.A.S.R. 25. 5. [1972] Qd R. 386. 6. [1971] A.C., at p. 391.

It is only in special circumstances where, after examination of the policy underlying the law which may be applied and the interests of the parties to be affected, it is clear that the lex loci delicti has no real connexion with the proceedings, that the exception can be invoked, enabling a plaintiff to recover damages available in the lex fori but not available in the lex loci delicti. Such a requirement should do much to alleviate any fears that unacceptable uncertainty will be introduced into this area of the law. There is, in the present case, where both parties at the time of the accident were resident in the Territory, no basis which could justify the application of the exception.

When this matter was first before the Court, it was argued by reference only to conflict of laws rules. Subsequently the Commonwealth, certain States and the Territory intervened and submissions were made by all concerned as to the implications of s. 118 of the Constitution, s. 18 of the State and Territorial Laws and Records Recognition Act 1901 Cth ("the Recognition Act") and also as to the position of the third respondent having regard to s. 56 of the Judiciary Act 1903 Cth. With regard to the former two provisions, a preliminary question arises as to their application in these proceedings. If they do apply, a question then arises as to whether those sections should be given substantive or merely evidentiary effect.

Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State. The section applies to the Territory. This is because the Territory is included in the phrase "throughout the Commonwealth": Lamshed v. Lake [81] (Dixon C.J.). However, s. 118 in its terms is confined to State laws and does not purport to apply to the laws of the Territory: Anderson [82] (Kitto J.). In consequence, while s. 118 requires courts of the Territory to give full faith and credit to the laws of the States, the converse is not true - the States do not, by virtue of s. 118, have to give full faith and credit to territorial laws. More accurately, the imperative in s. 118 does not extend to the laws of the Territory. 1. (1958) 99 C.L.R. 132, at p. 142. 2. (1965) 114 C.L.R., at p. 31.

It follows then that s. 118 is not in its operation directly relevant to the resolution of this appeal. The consequences it may have for choice of law rules when a statute of one State is considered by the court of another State is something which may await another day.

The Commonwealth also submitted that s. 18 of the Recognition Act was not relevant to the outcome of this appeal. This submission was supported by counsel for Queensland and South Australia. Section 18 reads:

All public acts records and judicial proceedings of any State or Territory, if proved or authenticated as required by this Act, shall have such faith and credit given to them in every Court and public office as they have by law or usage in the Courts and public offices of the State or Territory from whence they are taken.

Two differences exist between this provision and s. 118 of the Constitution. While the latter includes the word "laws", the former does not. In addition, s. 118 speaks of "public Acts" while s. 18 refers to "public acts". These distinctions formed the basis of the submission that s. 18 had no application to the statute law of the States and territories. As a matter of statutory construction, it was urged that the word "Acts" was an appropriate reference to statute law; thus the use of the lower case must have been intended as a reference to the acts of administrative officers. There is no doubt that the expression "public Acts" encompasses State statutes. State Interpretation Acts commonly deem Acts passed in the State to be public Acts. The issue to be determined, though, is whether the reference to "public acts" in s. 18 is sufficient to encompass State or territory legislation.

Counsel for the Commonwealth submitted that it was not. This submission is reinforced by the distinction made throughout the Recognition Act between "Acts" and "acts". In s. 8, when reference is made to State legislation the words "State Act" are used. (This is consistent with s. 38(3) of the Acts Interpretation Act 1901 Cth.) In contrast, in s. 7 the lower case is used to refer to an "act of state". Similarly, in ss. 14 and 14A, "act" was considered appropriate to refer to certain acts of the Governor-General, State Governor or a Minister of the Crown.

Counsel for the Territory attached no significance to the difference between "acts" and "Acts". In doing so he called in aid a 1901 marginal note to s. 18. In that side note, which no longer appears, reference was made to s. 118 of the Constitution and to United States Congressional legislation of May 26, 1790, ch. XI and March 27, 1804, ch. LVI. This, it was argued, made United States case law applicable to the interpretation of s. 18. And that case law, it was submitted, has consistently held that "public acts" refers to statute law. Bradford Electric Light Co. v. Clapper [83] , was cited in support of that proposition.

I would reject this submission. Marginal notes are not to be read as part of an Act: Acts Interpretation Act, s. 13(3). They are not, therefore, to be taken into account for the purposes of interpretation: Bradley v. The Commonwealth [84] (Barwick C.J. and Gibbs J.). Cf. Stephen J. in Dugan v. Mirror Newspapers Ltd. [85] . Counsel sought to avoid this prohibition by referring to Pearce, Statutory Interpretation in Australia, 2nd ed. (1981), p. 57 where is cited the decision of the House of Lords in Reg. v. Schildkamp [86] . While the judgments of Lords Reid and Upjohn in that case give limited support to the use of marginal notes as an aid to interpretation, they do so on the basis that the marginal note forms part of the printed Act [87] . This approach is not open with federal legislation, given the terms of s. 13(3) of the Acts Interpretation Act. Nor does it seem open on the facts of this particular case, for while the marginal note appeared in the Recognition Act as first enacted, it no longer does so.

(1973) 128 C.L.R. 557, at p. 577. 2. (1978) 142 C.L.R. 583, at p. 594. 3. [1971] A.C. 1. 4. [1971] A.C., at pp. 10, 28.

Even if counsel's submission was taken at its highest so that the 1901 marginal note incorporated by reference American case law, it is doubtful whether that case law supports the proposition contended for. While it is true that Brandeis J., delivering the opinion of the court in Bradford , stated that statutes were included within the expression "public act", that case concerned the interpretation of Art. 4, s. 1 of the United States Constitution. That provision is in the following terms:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof. Bradford , therefore, is not authority for the proposition that "public acts" includes a reference to statute law. It is authority only for the proposition that statutes are within the expression "public Acts" in Art. 4, s. 1. The congressional legislation of 1790 does not take the matter any further. That provision, although it referred to "acts", made it clear that what was contemplated was "acts of the State legislatures". Only the congressional legislation of 1804 uses "acts" in the lower case when referring to legislation.

There is no reason to think that the different references to "Acts" and "acts" found in the Recognition Act are simply an oversight. It seems that a deliberate attempt was made by the draftsman to differentiate between the upper and lower case. The result of doing so was that "Acts" is to be taken as a reference to legislation while "acts" refers to the activities of certain individuals. In any case, s. 18 only requires faith and credit to be given to those matters which are proved or authenticated as required by the Recognition Act. There is no provision in that Act whereby State or territory legislation can be so proved or authenticated. Finally the omission of the word "laws" from s. 18 strengthens the conclusion already reached that the section does not apply to State or territory legislation.

For the above reasons it follows that s. 18 is not applicable to these proceedings. This makes it unnecessary to determine whether s. 18 is merely an evidentiary provision or a substantive one. It is also unnecessary to consider whether the language of s. 51(xxv) of the Constitution is wide enough to support s. 18, there being no reference in the placitum to "public acts". In the case of the Territory, s. 122 of the Constitution would meet any defect, if there be one in s. 18 by reason of the reference to "public acts": see Spratt v. Hermes [88] .

To say that s. 118 of the Constitution and s. 18 of the Recognition Act are unavailable in the present case should not obscure the fact that the question before the Supreme Court of Victoria was whether recognition should be given to a statute of the Territory directly applicable to the circumstances giving rise to the appellant's claim. The sections mentioned are recognition of the fact that Australia is, in the words of the preamble to the Commonwealth of Australia Constitution Act 1900 Imp, a "Federal Commonwealth". Whether it be appropriate in some cases to think of the States as foreign countries for choice of law rules, it does not follow that this should be a universal or indeed the ordinary rule. The High Court, Federal Court and the Supreme Courts of the States and the territories are courts of one nation, administering the same common law and, to the extent that they are invested with federal jurisdiction, exercising a common jurisdiction. Their interchangeability of jurisdiction is emphasized by the Jurisdiction of Courts (Cross-vesting) Act 1987 Cth which confers the jurisdiction of the Federal Court on State and territory Supreme Courts and the jurisdiction of Supreme Courts on the Federal Court, in the circumstances there mentioned. See Mason and Crawford, The Cross-vesting Scheme, Australian Law Journal, vol. 62 (1988), p. 328.

It is hard to quarrel with the comment of Marks J. in Borg Warner (Aust.) Ltd. v. Zupan [89] :

Having regard to present-day mobility of people and traffic in and out of the Australian States and Territories individual schemes must be seen as operating together to form something in the nature of a single interlocking structure for the nation. The application of private international law rules as though each scheme was that of a sovereign state at arm's length tends to frustrate their planned operation, and increases the likelihood of unintended windfalls and losses. 1. [1982] V.R. 437, at pp. 460-461.

Consistently with the common law choice of law principles as they have now developed and consistently with the relation of Victoria and the Territory as members of the federation, it is appropriate that the Supreme Court of Victoria should apply the law that would have been applied had the appellant's claim been brought in the Supreme Court of the Northern Territory.

I turn now to the position of Telecom. It may be taken that Telecom is the Commonwealth within the meaning of s. 56 of the Judiciary Act: see Bolwell v. Australian Telecommunications Commission [90] ; and also Inglis v. Commonwealth Trading Bank of Australia [91] , Maguire v. Simpson [92] and Crouch v. Commissioner for Railways (Q.) [93] , which deal with other statutory bodies. In consequence, it was argued, the plaintiff should have commenced proceedings either in the High Court or in the Supreme Court of the Northern Territory. The question then arises whether the plaintiff's action was properly brought in Victoria. The answer to this depends on the character of s. 56 and whether the Commonwealth can voluntarily submit to the jurisdiction of the Victorian courts despite the section. For relevant purposes s. 56 provides that the appellant's claim against the Commonwealth may be brought in the High Court or in the Supreme Court of the Northern Territory.

(1982) 61 F.L.R. 154. 2. (1969) 119 C.L.R. 334. 3. (1977) 139 C.L.R. 362. 4. (1985) 159 C.L.R. 22.

In Suehle v. The Commonwealth [94] , Windeyer J., when discussing the effect of s. 56, said that:

jurisdiction in such a cause is not exerciseable by all courts which, anywhere in Australia, have jurisdiction in actions arising out of "foreign" torts. The section states that a plaintiff who sues the Commonwealth in contract or tort may do so in this Court, or in the Supreme Court of the State or Territory in which the claim arose, or in any other court of competent jurisdiction in that State or Territory. These are the only courts in which an action can be brought by a subject against the Commonwealth. (Emphasis added.) 1. (1967) 116 C.L.R. 353, at p. 355.

This passage was referred to by Connor J. in Coe v. Queensland Mines Ltd. [95] . In that case the Commonwealth entered an unconditional appearance. In asking "whether the Commonwealth through the executive can take the step of submitting the Commonwealth to the jurisdiction of a court which is not authorized by Parliament to hear the matter" [96] Connor J. answered the question in the negative. He stated [97] :

It seems to me that by purporting to submit the Commonwealth to the jurisdiction of this Court in this matter the executive confers a right on the plaintiff to make a claim against the Commonwealth in a court which has not been designated by Parliament. If Parliament wished to do so it could no doubt provide in the Judiciary Act 1901-1969 or elsewhere that a person making a claim against the Commonwealth could bring a suit in any Supreme Court of a State or Territory irrespective of where the claim arose; but Parliament has not done so; and I am disposed at present to think that the executive cannot do so. Connor J. did add a caveat to these observations that "[t]his aspect of the matter was not argued". Although he later gave counsel opportunity to argue the point, this invitation was not accepted [98] . 1. (1974) 24 F.L.R. 459, at pp. 466-467. 2. (1974) 24 F.L.R., at p. 466. 3. (1974) 24 F.L.R., at p. 467. 4. (1974) 24 F.L.R., at p. 468.

If these two authorities are accepted, then the Commonwealth's voluntary submission in this case had no effect. It would follow that the Victorian court had no jurisdiction in this matter. But the arguments in favour of the ability of the Commonwealth to submit to jurisdiction rest on both authority and principle.

In The Commonwealth v. Baume [99] Griffith C.J. said:

Some points appear free from doubt. It has always been held that a sovereign power invoking the assistance of a Court of justice as plaintiff submits itself to the jurisdiction of the Court for the purposes of the suit . On the other hand, a Court of justice has no jurisdiction against a sovereign power which does not subject itself, or is not subjected by Statute, to its jurisdiction. There can be no doubt that s. 56 of the Judiciary Act 1903 operates as a submission by the Commonwealth to the jurisdiction of the High Court or a State Court in cases falling within the section. 1. (1905) 2 C.L.R. 405, at pp. 412-413.

This passage contemplates two methods of submission to jurisdiction: one statutory, the other voluntary (hence the expression "subject itself"). It thus supports the view that s. 56 is not the only way in which the Commonwealth's common law immunity from suit is waived. Undoubtedly s. 56 does waive that immunity but it does not do so exhaustively; waiver can also be achieved, apart from s. 56, by the Commonwealth subjecting itself to jurisdiction.

Quite apart from authority, the Commonwealth Solicitor-General submitted that as a matter of principle there was no reason why the Commonwealth could not submit just like any other litigant. In my view the Commonwealth can voluntarily submit to jurisdiction. This conclusion does not contradict s. 56. Section 56 simply achieves a statutory waiver of Commonwealth immunity. There is no inconsistency in concluding that over and above this statutory waiver the Commonwealth can, if it wishes, submit like any other litigant. After all, s. 56 does not in its terms state that a plaintiff "shall only sue" in either the High Court or the Supreme Court of the place of the wrong, which it could have stated if it was intended to be an exhaustive provision dealing with waiver of immunity from suit.

Of the two cases opposed to this conclusion, it should be noted that the comments of Windeyer J. in Suehle were obiter. In addition, the observations of Connor J. in Coe were made without the benefit of argument. Neither judge referred to the judgment of Griffith C.J. in Baume which was relied upon in this case.

Section 56 must be considered in conjunction with s. 39 of the Judiciary Act. The latter section invests the courts of the States with federal jurisdiction "in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it ". There is an exception and there are conditions and restrictions, none of which is applicable here. In The Commonwealth v. Evans Deakin Industries Ltd. [1] the majority commented:

The Supreme Court is given jurisdiction to entertain a suit to which the Commonwealth is a party by the combined effect of s. 39(2) of the Judiciary Act and s. 75(iii) of the Constitution. In the present case s. 39(2) operates to confer jurisdiction on the Supreme Court of Victoria to entertain a claim against the Commonwealth. Notwithstanding s. 56, the Commonwealth may submit to the jurisdiction of that Court and that is what it has done in the present case. 1. (1986) 161 C.L.R. 254, at p. 264.

This conclusion makes it unnecessary to deal with a submission made by the Solicitor-General for South Australia that s. 21 of the Telecommunications Act 1975 Cth may itself subject Telecom to the jurisdiction of the Supreme Court of Victoria. Section 21(1)(d) enables the Commission to "sue or be sued in its corporate name". However, it is unlikely that a section dealing with the constitution of the Commission should have been intended to place Telecom outside the operation of s. 56 of the Judiciary Act.

In the case presently before the Court, the appellant was at the time of his accident resident in the Territory. So too were the first respondent and the second respondent, for whose alleged negligence the third respondent is sued vicariously. The no-fault scheme is expressly aimed at residents of the Territory in relation to accidents in the Territory; it does not purport to apply to those who are not resident when injured. The limitation on the right of Territory residents to claim damages cannot be described as merely procedural. Clearly it is a matter of substance. In the appellant's submission, the Act is concerned only to control actions for damages in the Territory and evinces no interest in restricting recovery in actions outside the Territory. This, I think, takes too simplistic a view of the legislation. Certainly, so far as is relevant to this appeal, the Act does not seek to have extra-territorial operation; but, equally, it does set out to limit severely the common law damages that may be recovered in the case of a resident who is injured in the Territory. That, no doubt, has a number of important implications both for injured persons and those who injure them. It is the Territory with which the accident and the parties, at the time of the accident, had a close connexion. There was no connexion with Victoria relevant to the commission of the tort.

Undoubtedly there are significant policy considerations in the selection of an appropriate law. Fawcett, Policy Considerations in Tort Choice of Law, Modern Law Review, vol. 47 (1984) 650 suggests that these conditions may operate at a multinational level, a party level and a jurisprudential level. It is unnecessary to agree with the whole of the learned author's analysis to see that, in the present case, requiring civil liability between the parties according to the lex loci delicti in respect of the relevant claims made in the forum acknowledges the relationship between the Territory and Victoria, gives appropriate recognition to the law of the former, effects a proper balance of the interests of the parties including the prevention of forum-shopping, and produces a rule which has reasonable certainty and ease of application. This approach also gives due recognition to the place of Victoria and the Territory within the federal Commonwealth.

The argument on behalf of the appellant that if the forum chosen by him is not the natural or appropriate forum, his action may be stayed, is not sufficient. The question is not one of forum non conveniens; it is more deeply rooted than that.

High Court of Australia Mason C.J. Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ. Breavington v Godleman [1988] HCA 40

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