Gardner v Wallace

The plaintiff's solicitor deposes to his belief that the plaintiff has a good cause of action for damages against the defendant [1] . He also deposes that the defendant currently resides at 19 Collingwood Road, Waiuka, South Auckland, New Zealand [2] . Previously, it would seem, the defendant was resident in Queensland.

1. See O 10, r 3(1)(a). 2. See O 10, r 3(1)(b).

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

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

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

If the substantive law of another place being another State, a Territory or New Zealand, is to govern a claim before a court of this State, a limitation law of that place is to be regarded as part of that substantive law and applied accordingly by the court. That Act extends to a cause of action that arose before the commencement of the legislation where proceedings had not at that time been instituted [3] and so extends to the proceedings in the County Court. 1. See Choice of Law (Limitation Periods) Act, s 4.

The defence that the action in the County Court is statute-barred is apparently based upon the application of s 5 of the Choice of Law (Limitation Periods) Act and assumes that the substantive law of Queensland will govern the claim. The result, it is said, is that the limitation period provided for actions for damages for negligence in Queensland which, under s 11 of the Limitation of Actions Act 1974 Q, is three years from the date on which the cause of action arose, will apply. The plaintiff, in order to escape that consequence, seeks to bring an action in this Court upon the basis that he will subsequently succeed in an application under s 44 of the Judiciary Act 1903 Cth to have the action remitted to Queensland. It is said, in reliance upon Pedersen v Young [4] and Fielding v Doran [5] , that upon a remitter to Queensland, the Limitation of Actions Act Q would not apply because upon its proper construction it is applicable only to actions brought in Queensland.

1. (1964) 110 CLR 162. 2. (1984) 59 ALJR 511; 60 ALR 342.

The effect of s 5 of the Choice of Law (Limitation Periods) Act is not entirely clear. Its wording may be based upon the misconception that in McKain v R W Miller & Co (SA) Pty Ltd [6] this Court decided that in an action in one State in respect of a tort committed in another State, the substantive law to be applied is that of the State where the tort was committed, that is to say, the lex loci delicti. McKain v R W Miller & Co (SA) Pty Ltd did not decide that [7] . It decided that, provided two conditions were met, an action could be maintained in a State other than that in which the tort occurred and that the law, procedural and substantive, to be applied in resolving the action was the law of the State in which the action was heard, that is to say, the law of the forum. The two conditions, which originated in Phillips v Eyre [8] but were expressed more narrowly than in that case, were:

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

1. By the law of the State in which the wrong occurred, the circumstances of the occurrence gave rise to a civil liability of the kind which the plaintiff claims to enforce.

1. (1991) 174 CLR 1. 2. See Stevens v Head (1993) 176 CLR 433 Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463 3. (1870) LR 6 QB 1.

Were those two conditions to be met in the plaintiff's action in the County Court of Victoria (and it seems that they would be met), the law to be applied in determining his claim would be the law of Victoria. Of course, that law would include s 5 of the Choice of Law (Limitation Periods) Act but under that section the question would arise whether the substantive law of another State, namely, Queensland would govern the claim before the court so as to import the limitation period under s 11 of the Limitation of Actions Act Q. The more natural conclusion is that the law which would govern the claim would be the law which determined the rights and liabilities of the parties which would be the law of Victoria. It is for that reason that I have suggested that those responsible for the drafting of s 5 may have misconceived the effect of the decision in McKain v R W Miller & Co (SA) Pty Ltd [9] . Such a misconception may have been assisted by the concession in argument in that case that "the substantive law of the place of the wrong is "imported into the forum" " [10] , a concession which was erroneous if it meant any more than that the substantive law of the place of the wrong is imported for the purpose of determining whether the second condition for the assumption of jurisdiction is satisfied.

1. See also The Commonwealth v Mewett (1994) 126 ALR 391 at 410-411and Dawson v Baker (1994) 120 ACTR 11 at 21where the same misconception appears to have been entertained. 2. McKain (1991) 174 CLR 1 at 40

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

If it is not given that meaning the section is robbed of the effect it was intended to have and, at least in actions in tort, it is robbed of any practical effect at all. In McKain v R W Miller & Co (SA) Pty Ltd it was held by the majority that the court in New South Wales, where the action was brought, ought to consider the law of South Australia, where the alleged wrong occurred, not for the purpose of applying it as the law governing the rights and liabilities of the parties in the action, but to determine whether the second condition laid down was met so as to enable the action to be maintained in New South Wales. That is to say, for the action to be maintainable in New South Wales, the New South Wales court was required to conclude that, by the law of South Australia, the nature of the alleged wrong was such that it gave rise there to a civil liability of the kind which the plaintiff claimed to enforce in New South Wales. It was for this reason that s 36(1) of the Limitation of Actions Act 1936 SA was relevant. Had it not been merely procedural its effect would have been to extinguish any cause of action in South Australia and the second condition would not have been met. But, as was said by the majority in McKain v R W Miller & Co (SA) Pty Ltd [11] :

Being procedural, s 36(1) has no effect on the action brought by the plaintiff in the Supreme Court of New South Wales to enforce the cause of action existing under the common law applicable in that State. 1. (1991) 174 CLR 1 at 44.

Section 5 of the Choice of Law (Limitation Periods) Act was clearly intended to reverse the effect of this part of the decision in McKain v R W Miller & Co (SA) Pty Ltd so that a limitation period in a State other than Victoria in which a tort occurs will have application in Victoria when it is sought to maintain an action in Victoria in respect of that tort [12] . It is a measure which is intended to reduce forum shopping and, being capable of bearing the meaning it was intended to have, it should be given that meaning.

1. See Second Reading Speech, Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 21 October 1993, p 1253.

For these reasons, I think that the plaintiff is correct in apprehending that the defence in the County Court based upon the Choice of Law (Limitation Periods) Act is likely to succeed. However, I am unable to accept his contention that an action commenced in this Court would be remitted to Queensland so as to avoid, if Pedersen v Young and Fielding v Doran be correct, the application of the Queensland limitation period. If the action commenced in this Court were to proceed in the original jurisdiction in Victoria, Victorian law would apply [13] , including the Choice of Law (Limitation Periods) Act and the action would be statute-barred by reason of the application of the Limitation of Actions Act Q. In these circumstances, I do not think that an order remitting the action to a court in Queensland ought to be made. To make such an order would be to deprive the defendant of a defence under the Choice of Law (Limitation Periods) Act and thus to alter in a significant way the law applicable in the resolution of the matter.

Whilst various views have been expressed in the cases as to the part which the balance of convenience should play in deciding applications for remitter [14] , it seems to me that where the plaintiff has, as in this case, commenced an action in Victoria, he can scarcely be heard to say now that the balance of convenience lies elsewhere. Nor does it seem to me, for the same reason, that observations which have been made [15] that in cases of doubt remitter should be to the State in which the tort was committed, have the strength which they would otherwise have. The exercise in which the plaintiff seeks to engage is frankly an exercise in forum shopping and in those circumstances the applicable principle is, I think, otherwise.

1. See Robinson v Shirley (1982) 149 CLR 132 Pozniak v Smith (1982) 151 CLR 38 State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 154 CLR 579 2. See Robinson v Shirley (1982) 149 CLR 132 at 136-137 Pozniak v Smith (1982) 151 CLR 38 at 51-52

As Brennan J observed in Robinson v Shirley [16] , the power to remit "is intended to facilitate the course of litigation rather than to enhance or diminish a plaintiff's rights or correspondingly alter a defendant's obligations". And as Gibbs CJ said in the State Bank Case [17] :

The purpose of a remitter under s 44 is simply to relieve this Court of the necessity to hear cases that might more conveniently be heard elsewhere, particularly where the litigation involves the trial of issues of fact. The Court should not, by making a remitter, alter the rights of the parties When this Court is called on to decide to which of two courts a remitter should be made, if the law to be applied in one of the competing jurisdictions is the same as, and that in the other is materially different from, that which would be applied if the matter remained in this Court, the remitter should be made to the court in which the law to be applied is the same as that applicable in this Court. For these reasons, I do not think an order remitting the action to a court in Queensland would, in this case, be made, leaving the plaintiff to discontinue his action in Victoria or to pursue it to a fruitless conclusion. If an order for remitter were to be made it would be made to a court in Victoria and so gain the plaintiff nothing. 1. (1982) 149 CLR 132 at 136. 2. (1984) 154 CLR 579 at 586.

Under O 10, r 3 leave to serve the writ or notice of the writ is not to be granted unless it is sufficiently made to appear that the cause is a "proper one" for service outside the Commonwealth. The rule confers a discretion which is to be exercised with caution [18] . Putting to one side the difficulty that the defendant may no longer be a resident of Queensland, it seems to me that, having regard to the existing action in Victoria and what I regard as the inevitable fate of the cause in this Court even if the defendant is served with the writ, that cause is not a proper one for service outside the Commonwealth. The application is accordingly refused.

1. See The Supreme Court Practice 1995 UK, vol 1, p 86; The " Nimrod " [1973] 2 Lloyd's Rep 91.