Mobil Oil Australia Pty Ltd v Victoria

(a) seven or more persons have claims against the same person; and

(b) the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and

(c) the claims of all those persons give rise to a substantial common question of law or fact-

a proceeding may be commenced by one or more of those persons as representing some or all of them.

(iii) includes claims for damages that would require individual assessment; or

(i) is concerned with separate contracts or transactions between the defendant and individual group members; or

(ii) involves separate acts or omissions of the defendant done or omitted to be done in relation to individual group members."

(1) A person referred to in paragraph (a) of section 33C(1) who has a sufficient interest to commence a proceeding on the person's own behalf against another person has a sufficient interest to commence a group proceeding against that other person on behalf of other persons referred to in that paragraph.

(2) If a person has commenced a group proceeding, that person retains a sufficient interest-

(b) to bring an appeal from a judgment in the proceeding-

even though the person ceases to have a claim against the defendant."

(1) Subject to sub-section (2), the consent of a person to be a group member is not required.

(2) None of the following persons is a group member unless the person gives consent in writing to being so-

(b) a Minister of the Commonwealth, a State or a Territory; or

(c) a body corporate established for a public purpose by a law of the Commonwealth, a State or a Territory, other than an incorporated company or association; or

(d) any judge, magistrate or other judicial officer of the Commonwealth, a State or a Territory; or

(e) any other officer of the Commonwealth, a State or a Territory, in his or her capacity as an officer."

1. The effect of s 33F is that a person under a disability may be a member of a group (but not an active participant in group proceedings) without a litigation guardian.
2. Section 33J deals with members of a group who elect not to be parties to the proceedings:

(1) The Court must fix a date before which a group member may opt out of a group proceeding.

(2) A group member may opt out of the group proceeding by notice in writing before the date so fixed.

(3) The Court, on the application of a group member, the plaintiff or the defendant, may extend the period within which a group member may opt out of the group proceeding.

(4) Except with the leave of the Court, the trial of a group proceeding must not commence earlier than the date before which a group member may opt out of the proceeding.

(5) Unless the Court otherwise orders, a person who has opted out of a group proceeding must be taken never to have been a group member.

(6) The Court, on the application of a person who has opted out of a group proceeding, may reinstate that person as a group member on such terms as the Court thinks fit."

1. Section 33KA confers very broad powers upon the Supreme Court of Victoria:

(1) On the application of a party to a group proceeding or of its own motion, the Court may at any time, whether before or after judgment, order-

(2) The Court may make an order under sub-section (1) if of the opinion that-

(a) the person does not have sufficient connection with Australia to justify inclusion as a group member; or

(b) for any other reason it is just or expedient that the person should not be or should not become a group member.

(3) If the Court orders that a person cease to be a group member, then, if the Court so orders, the person must be taken never to have been a group member."

1. There is some possible overlap between s 33KA and s 33N which provides as follows:

(1) The Court may, on application by the defendant, order that a proceeding no longer continue under this Part if it is satisfied that it is in the interests of justice to do so because-

(a) the costs that would be incurred if the proceeding were to continue as a group proceeding are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding; or

(b) all the relief sought can be obtained by means of a proceeding other than a group proceeding; or

(c) the group proceeding will not provide an efficient and effective means of dealing with the claims of group members; or

(d) it is otherwise inappropriate that the claims be pursued by means of a group proceeding.

(2) If the Court dismisses an application under this section, the Court may order that no further application under this section be made by the defendant except with the leave of the Court.

(3) Leave for the purposes of sub-section (2) may be granted subject to such conditions as to costs as the Court thinks fit."

1. Sections 33V and 33X should be noted. Section 33V provides:

(1) A group proceeding may not be settled or discontinued without the approval of the Court.

(2) If the Court gives such approval, it may make such orders as it thinks fit with respect to the distribution of any money, including interest, paid under a settlement or paid into court."

(1) Notice must be given to group members of the following matters in relation to a group proceeding-

(a) the commencement of the proceeding and the right of the group members to opt out of the proceeding before a specified date, being the date fixed under section 33J(1);

(b) an application by the defendant for the dismissal of the proceeding on the ground of want of prosecution;

(c) an application by the plaintiff seeking leave under section 33W.

(2) The Court may dispense with compliance with any or all of the requirements of sub-section (1) if the relief sought in a proceeding does not include any claim for damages.

(3) If the Court so orders, notice must be given to group members of any offer to compromise the proceeding.

(4) Unless the Court is satisfied that it is just to do so, an application for approval under section 33V must not be determined unless notice has been given to group members.

(5) The Court may, at any stage, order that notice of any matter be given to a group member or group members.

(6) Notice under this section must be given as soon as practicable after the happening of the event to which the notice relates."

(1) Without limiting the operation of section 33Z(2), in making provision for the distribution of money to group members, the Court may provide for-

(a) the constitution and administration of a fund consisting of the money to be distributed; and

(i) the payment by the defendant of a fixed sum of money into the fund; or

(ii) the payment by the defendant into the fund of such instalments, on such terms, as the Court directs to meet the claims of group members; and

(c) entitlements to interest earned on the money in the fund.

(2) The costs of administering a fund are to be borne by the fund or the defendant, or by both, as the Court directs.

(3) If the Court orders the constitution of a fund mentioned in sub-section (1), the order must-

(a) require notice to be given to group members in such manner as is specified in the order; and

(b) specify the manner in which a group member is to make a claim for payment out of the fund and establish the group member's entitlement to the payment; and

(c) specify a day (which is 6 months or more after the day on which the order is made) on or before which the group members are to make a claim for payment out of the fund; and

(d) make provision in relation to the day before which the fund is to be distributed to group members who have established an entitlement to be paid out of the fund.

(4) The Court may, if it is just, allow a group member to make a claim after the day fixed under sub-section (3)(c) if the fund has not already been fully distributed.

(5) On application by the defendant after the day fixed under sub-section (3)(d), the Court may make such orders as it thinks fit for the payment from the fund to the defendant of the money remaining in the fund."

(1) Upon the commencement of a group proceeding, the running of any limitation period that applies to the claim of a group member to which the proceeding relates is suspended.

(2) The limitation period does not begin to run again unless either the member opts out of the proceeding under section 33J or the proceeding, and any appeals arising from the proceeding, are determined without finally disposing of the group member's claim."

1. It is true, as the joint judgment of Gaudron, Gummow and Hayne JJ points out, that rules of court have long provided for the joinder of plaintiffs in one action, of all persons having a right to relief arising out of the same transactions or events. It is also true that representative proceedings have been available under rules of court modelled on the former Chancery practice for more than 100 years.
2. But, it is relevant to note that there are differences between group, or as they are more familiarly known, class actions, and litigation of a more conventional kind, including even currently generally available representative actions, particularly with respect to the considerations relevant to the exercise of a court's discretion whether to allow the proceedings to be carried on. This Court recently gave consideration to conventional representative proceedings in New South Wales in Carnie v Esanda Finance Corporation Ltd[201]. Although the Court (contrary to the opinion of the Court of Appeal of New South Wales) took the view that the absence of detailed legislative provision for the regulation of the proceedings there was not fatal to their maintenance, it held that relevant to the exercise of the power of the Court to disallow their continuation, were a number of matters which serve to indicate some of the differences between class or group proceedings, and representative proceedings. Mason CJ, Deane and Dawson JJ said this[202]:

"Relevant to that question [whether proceedings should go forward] are some of the comments of Gleeson CJ in the course of explaining his concern about the absence of a detailed legislative prescription. In that context, Gleeson CJ mentioned the need to deal with such important matters as[203]: (1) whether or not consent is required from group members; (2) the right of such members to opt out of the proceedings; (3) the position of persons under a disability; (4) alterations to the description of the group; (5) settlement and discontinuance of the proceedings; and (6) the giving of various notices to group members."

1. Group proceedings may be brought under the Victorian Act even though separate contracts may be involved. A person who has commenced group proceedings under the Supreme Court Act may appeal in them, even though that person no longer has any claim against the defendant. A person who is under a disability may be a member of the group although that person does not have a litigation guardian. The onus is upon a group member to opt out, and unless he or she does so by a certain date, that person will continue to be a member. No proceedings may be settled or discontinued without the approval of the Court, and the Court solely decides how any settlement fund, if there has been a settlement, will be distributed among members of the group. An onerous requirement is imposed upon any defendant wishing to apply for dismissal of a group action for want of prosecution, to give a prior notice thereof to group members, that is presumably, all group members. A further potentially onerous requirement is that the cost of the administration of a settlement fund may have to be borne by the defendant.
2. The most striking of all of the differences between group proceedings and other generally available proceedings is however that on the commencement of the former, the operation of (presumably all) statutes of limitation is suspended.
3. The question here is not whether, by their nature, group or class proceedings are oppressive to defendants, give rise to entrepreneurial litigation, in fact proliferate and prolong court proceedings, undesirably substitute private for public law enforcement or are contrary to the public interest, with disadvantages outweighing a public interest in enabling persons who have been damnified but who would not, or could not bring the proceedings themselves, to be compensated for their losses[204]. The question simply is whether the Victorian Act is valid.

1. The plaintiff accepts that persons outside Victoria could, independently of Pt 4A of the Supreme Court Act, pursue any of the causes of action pleaded by Tasfast in Victoria, because the plaintiff carries on business in that State and may be served there. The effect, however, of s 33X is that a person outside Victoria who might not receive actual notice of the group proceeding, may not have an opportunity to opt out, and is accordingly in a different position from an interstate plaintiff deliberately choosing to invoke the jurisdiction of the Supreme Court of Victoria rather than some other Australian court.
2. The plaintiff points to the fact that a group member will be bound by the judgment in the proceeding (s 33ZB). If the judgment finally determine the matter (for example, if there be a judgment for the defendant, or if damages be ordered in an aggregate sum) his or her damages and rights thereto would merge in that judgment. It is also conceivable that a group member pursuing a claim in another Supreme Court under another appropriate, but different regime for damages in that court, might have his or her damages assessed in a greater sum than the sum assessed in the group proceedings in Victoria, or than would be available on a division of an aggregate sum, or a settlement fund assessed or approved, and administered by the Victorian Supreme Court. There is another potential problem to which the plaintiff refers. Even if the judgment does not finally determine the matter, for example, if only a common question of law or fact is decided, the decision of law, or with respect to that fact, may give rise to a defence of res judicata between every member of the group and the defendant. A group member seeking to commence proceedings against the defendant following the determination of the group proceeding based on a different cause of action will arguably at least have to overcome an estoppel argument if the claim is of a kind that could have been pursued in the group proceeding[205].
3. The plaintiff refers to the recent decision of this Court in John Pfeiffer Pty Ltd v Rogerson[206] which holds that the law to be applied in proceedings brought in one jurisdiction in tort will ordinarily be the law of the place of the tort, and will include, as matters of substantive law the heads and quantum of damages, and the statutory law of the place of the tort including statutes of limitation. The Victorian Act has the capacity therefore to affect the substantive rights of group members outside Victoria, even though those people may wish to litigate, and would be entitled to litigate their claims in another State.
4. The plaintiff submits that the Constitution Act 1975 (Vic) must be read subject to the Australian Constitution and does not provide a sound basis for the exercise of jurisdiction by the Victorian Supreme Court over unwitting or unwilling group members in other States. Section 85 provides as follows:

(1) Subject to this Act the Court shall have jurisdiction in or in relation to Victoria its dependencies and the areas adjacent thereto in all cases whatsoever and shall be the superior Court of Victoria with unlimited jurisdiction.

(3) The Court has and may exercise such jurisdiction (whether original or appellate) and such powers and authorities as it had immediately before the commencement of the Supreme Court Act 1986.

(4) This Act does not limit or affect the power of the Parliament to confer additional jurisdiction or powers on the Court.

(5) A provision of an Act, other than a provision which directly repeals or directly amends any part of this section, is not to be taken to repeal, alter or vary this section unless-

(a) the Act expressly refers to this section in, or in relation to, that provision and expressly, and not merely by implication, states an intention to repeal, alter or vary this section; and

(b) the member of the Parliament who introduces the Bill for the Act or, if the provision is inserted in the Act by another Act, the Bill for that other Act, or a person acting on his or her behalf, makes a statement to the Council or the Assembly, as the case requires, of the reasons for repealing, altering or varying this section; and

(ii) after not less than 24 hours' notice is given of the intention to make the statement but before the third reading of the Bill; or

(iii) with the leave of the Council or the Assembly, as the case requires, at any time before the third reading of the Bill.

(6) A provision of a Bill which excludes or restricts, or purports to exclude or restrict, judicial review by the Court of a decision of another court, tribunal, body or person is to be taken to repeal, alter or vary this section and to be of no effect unless the requirements of sub-section (5) are satisfied.

(7) A provision of an Act which creates, or purports to create, a summary offence is not to be taken, on that account, to repeal, alter or vary this section.

(8) A provision of an Act that confers jurisdiction on a court, tribunal, body or person which would otherwise be exercisable by the Supreme Court, or which augments any such jurisdiction conferred on a court, tribunal, body or person, does not exclude the jurisdiction of the Supreme Court except as provided in sub-section (5).

1. The Australian Constitution and the federal structure for which it provides, must of necessity contemplate and ensure the unfettered exercise of jurisdiction of the courts of each of the States according to accepted notions of territoriality. All of the State Constitutions contain similar provisions to s 85 of the Victorian Constitution. The plaintiff accepts that the language used in s 85 of the Victorian Constitution and like provisions in other States should not be read in any narrow fashion[207]. However, a consistent, expansive reading and application of all State Constitutions has the capacity to cause, and will inevitably do so, conflicts of jurisdiction, and forum poaching: it is only when the jurisdiction of one State is under consideration, that there may be no immediately apparent problem. The Victorian legislature, by the Victorian Act, has attempted to make the Supreme Court of Victoria a national court for the conduct of class actions: this is so because it has the potential, if the Supreme Court Act is valid, to draw residents of other places into proceedings in Victoria as plaintiffs in circumstances in which their claims have no necessary connexion with Victoria, they have not invoked the jurisdiction of that Court and they might wish, for perfectly valid reasons, to bring proceedings in jurisdictions other than Victoria.
2. The plaintiff accepts that there is a body of choice of law rules to apply to cases in which jurisdiction is founded simply upon service of process on the defendant whilst the defendant is in the relevant jurisdiction. The plaintiff does not accept however that the existence of that body of rules denies the force of its argument that there must be some limit upon the jurisdiction of a State Supreme Court, and that limit should be imposed by this Court, if its exercise has a tendency to interfere with, or impinge upon the extra-territorial jurisdiction and powers of another State. The plaintiff's proposition does not go so far as to seek to confine a State Supreme Court's jurisdiction to cases in which the subject matter arises within the State in which the jurisdiction is being exercised. The plaintiff's submissions are made in the context of this case, and with a degree of particularity which is related to the breadth and reach of the Victorian Act and its presumption in, among other things, purporting to suspend the operation of all statutes of limitation, including those of other jurisdictions. It is no answer, the plaintiff submits, that already there are cases in which similar, if not identical issues, can be raised in the courts of two States between the same or related parties, and that the difficulties to which they give rise can be resolved by the application of principles concerning abuse of process, or by the application of cross-vesting legislation. What distinguishes those cases is that the plaintiffs in them are ordinarily fully voluntary, moving parties, pursuing proceedings of their choice in jurisdictions which they have chosen and are entitled to choose.

1. In my opinion, several matters, some of which were adverted to in the plaintiff's submissions, do have to be taken into account in resolving the issues in this case.
2. First, Pfeiffer[208] holds that the law to be applied in cases of tort is the law of the place of the commission of the tort. What is not completely settled in cases of torts of product liability is how the place of the commission of the tort is to be determined, whether by reference to the place of design, manufacture, assembly, supply, consumption, or even of advertisement. True it is in a case of tort that damage is said to be the gist of the action, but equally, there will be no damage but for the defective design, manufacture, assembly or supply, as the case may be, wherever that occurred. Arguments can be persuasively advanced to locate the tort in any of the suggested places. This Court on balance appears to have adopted a test which is tantamount to asking the question, "where, in substance, did the act take place?"[209] Four Justices[210], although they did not refer in terms to the "substance" of the cause of action, an expression used by the Privy Council in Distillers Co (Biochemicals) Ltd v Thompson[211], in looking to "the act on the part of the defendant which gives the plaintiff his cause of complaint", were effectively adopting the same or a very similar approach to their Lordships in that case. The proposition that the best place for a trial will usually be the place where the defendant misconducted itself or omitted to do something (except in cases to which longstanding different rules based on different considerations apply, such as defamation and injurious falsehood cases), rather than where seven people are able to congregate to start an action, is I think, the preferable one.
3. Secondly, even though the availability of "long arm" jurisdiction is an accepted legal fact of life recently affirmed by this Court in an international setting[212], a serious question remains whether, or, as to the extent to which, the arms of one State should, in a federation, be permitted to reach into and pick the pockets of the jurisdiction of another.
4. Thirdly, given the realities of competition between the States, which in many respects may by no means be undesirable, I would expect that other States will perceive the Victorian legislation to be a pre-emptive grab for national ascendancy in class actions, and therefore to be met with the enactment of similar legislation to confer upon their own courts the same jurisdiction. And because many business people carry on business in all States and Territories of the Commonwealth, the potential for confusion and uncertainty in the courts in that likely event will be great.
5. Fourthly, the problems to which I have just referred are likely to be aggravated by the increasingly competitive entrepreneurial activities of lawyers undertaking the conduct of class or group actions, in which, in a practical sense, the lawyers are often as much the litigants as the plaintiffs themselves, and with the same or even a greater stake in the outcome than any member of a group. This reality is likely to be productive of a multiplicity of group actions throughout the country.
6. Fifthly, s 118[213] of the Constitution must be given effect, and the question is how that may be achieved when one or more States legislate as Victoria has. Five Justices of this Court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) in Pfeiffer[214] referred to the problems of applying the statute law of two law areas when the laws differ. In that case it was unnecessary to reach a concluded view of the operation of s 118 of the Constitution but their Honours said this of it[215]:

"In its terms, s 118 does not state any rule which dictates what choice is to be made if there is some relevant intersection between legislation enacted by different States. Nor does it, in terms, state a rule which would dictate what common law choice of law rule should be adopted. It may well be, however, that s 118 (and in some cases s 117, or even s 92 in its protection of individual intercourse[216]) deals with questions of competition between public policy choices reflected in the legislation of different States - at least by denying resort to the contention that one State's courts may deny the application of the rules embodied in the statute law of another State on public policy grounds[217].

In Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd[218], Rich and Dixon JJ and Evatt J suggested that s 118 precludes the courts of one State from concluding (as the primary judge had in that case) that the application of the statute of another State 'would at the stage and in the circumstances in which it was invoked work manifest injustice to or, in effect, a fraud on one of the parties'[219]. And in [Breavington v Godleman], six members of the Court appear to have accepted that s 118 may preclude the refusal of one State to apply the law of another on the grounds of public policy where the law of that other State is otherwise applicable[220]. However, it may also be that s 118 suggests that the constitutional balance which should be struck in cases of intranational tort claims is one which is focused more on the need for each State to acknowledge the predominantly territorial interest of each in what occurs within its territory than it is on a plaintiff's desire to achieve maximum compensation for an alleged wrong.

It has been said that the giving of full faith and credit to the law of another State only when the choice of law rules of the forum point to that law 'is to give full faith and credit to one's own law rather than to that of the sister-state, a fact which the unity of the common law in Australia has so far concealed'[221]. And there was a deal of debate in the oral argument in the present case about the effect of s 118. Some of those questions were considered in Breavington[222] but not resolved by the formulation of a choice of law rule deriving its force from s 118. However, the terms of s 118 indicate that, as between themselves, the States are not foreign powers as are nation states for the purposes of international law. That apart, it is not necessary in the present matter to resolve other questions respecting s 118. The matter is to be resolved, in our view, by developing the common law to take account of federal jurisdiction as delineated in Ch III of the Constitution and, also, to take account of the federal system in which sovereignty is shared between the Commonwealth and the member States of the federation."

1. It is also relevant in this context to refer to their Honours' reflections upon the difficulties of application of the rules for choice of law that can arise when plaintiffs have two or more causes of action or choices of jurisdiction[223].

"Difficulty will arise in locating the tort when an action is brought, for example, for product liability and the product is made in State A, sold in State B and consumed or used by the plaintiff in State C[224]. And the tort of libel may be committed in many States when a national publication publishes an article that defames a person[225]. These difficulties may lead to litigants seeking to frame claims in contract rather than tort (as the [Workers Compensation Act 1987 (NSW)] anticipated[226]) or for breach of s 52 of the Trade Practices Act 1974 (Cth) or some similar provision. Characterising such actions may be difficult and may raise questions whether the private international law rules about tort or some other rules are to be applied[227].

Moreover, even if the place of the tort can be located in a single jurisdiction, it will often enough be entirely fortuitous where the tort occurred. Why, so the argument goes, should the rights of Victorian residents injured when the car in which they are driven (by another Victorian) differ according to whether, if a driver falls asleep and the car runs off the road near the Victorian border, it does so south of Wodonga or north of Albury? But for every hard case that can be postulated if one form of universal rule is adopted, another equally hard case can be postulated if the opposite universal rule is adopted.

It is as well then to compare the consequences of the application, in cases of intranational torts, of the lex loci delicti with the consequences of applying the lex fori. If the lex loci delicti is applied, subject to the possible difficulty of locating the tort, liability is fixed and certain; if the lex fori is applied, the existence, extent and enforceability of liability varies according to the number of forums to which the plaintiff may resort and according to the differences between the laws of those forums and, in cases in federal jurisdiction, according to where the court sits.

From the perspective of the tortfeasor (or in many cases an insurer of the tortfeasor) application of the lex loci delicti fixes liability by reference to geography and it is, to that extent, easier to promote laws giving a favourable outcome by, for example, limiting liability. If the lex fori is applied, the tortfeasor is exposed to a spectrum of laws imposing liability.

From the perspective of the victim (the plaintiff) application of the lex loci delicti can be said to make compensation depend upon the accident of where the tort was committed, whereas, if the lex fori is applied, the plaintiff can resort to whatever forum will give the greatest compensation."

1. On an earlier occasion, in 1989, this Court[228] (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) discussed, without resolving, the difficulties that can arise when States legislate in respect of matters with which each has a legitimate connexion:

"A problem of greater difficulty would have arisen if the fishery defined by the arrangement had a real connexion with two States, each of which enacted a law for the management of the fishery. The Constitution contains no express paramountcy provision similar to s 109 by reference to which conflicts between competing laws of different States are to be resolved. If the second arrangement had been construed as extending to waters on the Victorian side of the line of equidistance, there would obviously have been grounds for arguing that the Victorian nexus with activities in these waters was as strong as or stronger than the South Australian nexus. As has been seen, however, the second arrangement does not extend into such waters. Where, as here, there is no suggestion of the direct operation of the law of one State in the territory of another, the problem of conflicting State laws arises only if there be laws of two or more States which, by their terms or in their operation, affect the same persons, transactions or relationships. In the present case, there is no competing law of a State other than South Australia purporting to apply to or in relation to the fishery to which the second arrangement applies. That being so, there is no real question of any relevant inconsistency between the law of South Australia and the law of another State."

1. Sixthly, although it is now settled that there is only one common law for the whole of Australia, the States' relevant enactments are different in many respects. Some have capped or otherwise limited[229] or even abolished[230] damages for personal injuries. In New South Wales exemplary damages are not recoverable[231] in defamation actions. In Queensland they are. Provisions for the enlargement of periods of limitation are perhaps more generous, or may be more generously applied in New South Wales[232] than they are in Queensland. These are examples of significant differences of both substantive and perhaps procedural law that immediately come to mind. In current practice, and in the future, there are, and will be many others[233]. If each State were to enact, and the courts were to be required to give full effect to the potentially imperialistic legislation of the kind now to be found in Pt 4A of the Supreme Court Act, then the courts of the States will be confronted with endless conflicts that will defy satisfactory resolution.
2. As the majority judgment[234] points out, the claims of some claimants may arise out of events and transactions occurring wholly outside Victoria, and the claimants may have no connexion at all with that State: but as the plaintiff was incorporated, served with process, carried on business in, and "released fuel" from, Victoria, there is no doubt that the Victorian Supreme Court has jurisdiction. It is questionable however, whether it should have an unfettered right to exercise that jurisdiction in respect of group members outside Victoria who have either failed to become aware of the proceedings, or have not opted out.
3. Finally, whilst it has twice been unanimously held by this Court[235] that a remote or a general connexion between a State and the subject matter of the legislation will suffice to validate that legislation, it is significant that those holdings were not made in a setting of equal competing connexions of the kind in prospect here.
4. Having regard to the matters that I have enumerated I have formed the opinion that Pt 4A of the Supreme Court Act, although not invalid, must be read down so that its operation is confined to each of the following:

(ii) group members carrying on business in Victoria;

(iii) group members registered or incorporated in Victoria;

(iv) group members wherever resident, registered or carrying on business outside Victoria, positively electing (and not merely not opting out) to be group members:

in cases in which, by reason of service there, or for other good and settled principle of common law, or by statute, the defendant is amenable to the jurisdiction of the Victorian Supreme Court.

1. To go beyond those groups would, in my opinion be to go beyond what is properly to be regarded as even a remote connexion with Victoria. I find myself forced to this conclusion in particular: because of the great, if not insurmountable, but unnecessary difficulties to which the uninhibited exercise of the jurisdiction conferred by the Supreme Court Act and like State Acts by more than one State over transnational causes of action would give rise; the operation of s 118 of the Constitution which would be offended if, for example, the Victorian Supreme Court were able to disregard or suspend a limitations provision of another State which would otherwise immediately apply to the cause of action, or were permitted to disregard the requirements for a guardian ad litem of another State, or were free to distribute damages from a fund, different, as to its heads or the quantum thereof, from those to which a plaintiff might be entitled in other proceedings in another State.
2. In practice, having regard to the Court's extensive powers over group litigation, and the practical control exerted by the named seven group members and their lawyers, other group members out of Victoria are unlikely to have any real influence, let alone control over the proceedings. The reality of the difference between a voluntary and an involuntary plaintiff is not to be minimized. Section 118 of the Constitution at the very least requires as a matter of comity between States due deference to the reasonable exercise of the jurisdictions of the courts of each of them. The unrestricted operation of Pt 4A of the Supreme Court Act would fail to pay that deference. Victoria may authorize the conscription of its own plaintiffs but not those of other States.
3. That at present there can be overlapping aspects of procedures, rules and judgments of courts within the federation which have hitherto been resolved by current principles and rules (not always, it may be added, readily capable of clear articulation and application and often involving discretionary matters upon which minds often differ) as to stays, prevention of abuses of process and cross-vesting, provides no reason for the compounding of conflicts.
4. Subject to the correctness or otherwise of the plaintiff's second argument, because the legislation is valid to the extent that I have indicated, no question of severability arises.
5. The plaintiff's other argument is based upon Kable v Director of Public Prosecutions (NSW)[236]: that the Supreme Court Act purports to vest in the Victorian Supreme Court powers incompatible with the exercise of judicial power and in particular the investment of Commonwealth judicial power. In view of the decision of the majority allowing the demurrer, any decision by me on this aspect of the case could not affect the outcome of the demurrer. That, taken with the desirability of considering such an argument in the context of a particular ruling on a particular section or event, means that this is not an occasion for the resolution of that issue.
6. Part 4A of the Supreme Court Act should be regarded as valid but it should be read so that its operation is confined in the way that I have stated. I would allow the demurrer in part. Both parties have therefore had some success. I would accordingly make no order as to costs.

3. (1995) 182 CLR 398 at 415-417 per Toohey and Gaudron JJ, 427-429 per McHugh J. ↑

5. As to the practice concerning representative orders in proceedings in Chancery, see Templeton v Leviathan Pty Ltd (1921) 30 CLR 34 at 74-79 per Starke J. ↑

10. John Russell & Co Ltd v Cayzer, Irvine & Co Ltd [1916] 2 AC 298 at 302. ↑

11. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 151. ↑

12. Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 14. ↑

15. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 152. ↑

16. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503. ↑

17. Melbourne Corporation v The Commonwealth (1947) 74 CLR 31; Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 217 per Mason J. ↑

18. cf Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 451 per McHugh J. ↑

20. Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 80 per Dawson J, 109-110 per McHugh J, 142 per Gummow J. ↑

cf In re Freme's Contract [1895] 2 Ch 778 at 780-781. ↑

Schutt Flying Academy (Australia) Pty Ltd v Mobil Oil Australia Ltd (2000) 1 VR 545 at 558-560 [35]-[37] per Ormiston JA. ↑

Schutt Flying Academy (Australia) Pty Ltd v Mobil Oil Australia Ltd (2000) 1 VR 545. ↑

Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 (Vic), s 2(2). ↑

Rules of the Supreme Court 1883 (Eng) ("the 1883 English Rules"). ↑

See, for example, Rules of Procedure in Civil Proceedings 1957 (Vic), O 16 r 1 ("the 1957 Victorian Rules"); the 1883 English Rules (as amended in 1896), O 16 r 1; cf High Court Rules, O 16 r 1(1)(a). ↑

See, for example, Stroud v Lawson [1898] 2 QB 44 at 52 per Chitty LJ; Universities of Oxford and Cambridge v George Gill & Sons [1899] 1 Ch 55 at 59 per Stirling J. ↑

The 1957 Victorian Rules, O 16 r 9; the 1883 English Rules, O 16 r 9. ↑

Duke of Bedford v Ellis [1901] AC 1 at 8 per Lord Macnaghten. ↑

Harvey v Harvey (1841) 4 Beav 215 [49 ER 321], (1842) 5 Beav 134 [49 ER 528]; Hawkins v Hawkins (1842) 1 Hare 543 [66 ER 1147]; Smart v Bradstock (1844) 7 Beav 500 [49 ER 1159]. ↑

Mitford, A Treatise on the Pleadings in Suits in the Court of Chancery by English Bill, 4th ed (1827) at 166‑167; Leigh v Thomas (1751) 2 Ves Sen 312 [28 ER 201]. ↑

Powell v Wright (1844) 7 Beav 444 at 446‑447 per Lord Langdale MR [49 ER 1137 at 1138]. ↑

For example, Federal Court of Australia Act 1976 (Cth), Pt IVA. ↑

49. Powell v Wright (1844) 7 Beav 444 at 446-447 per Lord Langdale MR [49 ER 1137 at 1138]. ↑

56. Wong v Silkfield Pty Ltd (1999) 199 CLR 255 at 266‑267 [27] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ. ↑

For example, Constitution Act 1902 (NSW), s 5. ↑

For example, Constitution Act 1889 (WA), s 2. ↑

Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 9 per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ; Durham Holdings Pty Ltd v New South Wales (2001) 75 ALJR 501 at 503 [9] per Gaudron, McHugh, Gummow and Hayne JJ; 177 ALR 436 at 439. ↑

Union Steamship (1988) 166 CLR 1 at 10 per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ. ↑

R v Foster; Ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256 at 307. See also Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337 at 375 per Dixon J; Union Steamship (1988) 166 CLR 1 at 12‑13 per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ; Johnson v Commissioner of Stamp Duties [1956] AC 331; Thompson v Commissioner of Stamp Duties [1969] 1 AC 320 at 335‑336; Australia Act 1986 (Cth), s 2(1). ↑

State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 271 per Brennan CJ, Dawson, Toohey and Gaudron JJ. See also Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340 at 369-373. ↑

Pearce v Florenca (1976) 135 CLR 507 at 518 per Gibbs J. ↑

Union Steamship (1988) 166 CLR 1 at 14; Port MacDonnell (1989) 168 CLR 340 at 372. ↑

Port MacDonnell (1989) 168 CLR 340 at 374; State Authorities Superannuation Board (1996) 189 CLR 253 at 285‑286 per McHugh and Gummow JJ. ↑

Laurie v Carroll (1958) 98 CLR 310; Gosper v Sawyer (1985) 160 CLR 548 at 564-565; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 517 [13] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. ↑

Bonython v The Commonwealth (1948) 75 CLR 589 and, in the Privy Council, (1950) 81 CLR 486; [1951] AC 201. ↑

For example, John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503. ↑

For example, Jurisdiction of Courts (Cross‑vesting) Act 1987 (Vic), s 5(2). ↑

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. ↑

Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 247‑248 per Deane J; Voth (1990) 171 CLR 538 at 564‑565 per Mason CJ, Deane, Dawson and Gaudron JJ. ↑

As, for example, under O 7 of the 1996 Victorian Rules. ↑

Service and Execution of Process Act 1992 (Cth), s 15. ↑

Holmes v Angwin (1906) 4 CLR 297; Consolidated Press Ltd v Australian Journalists' Association (1947) 73 CLR 549; Saffron v The Queen (1953) 88 CLR 523; Mellifont v Attorney‑General (Q) (1991) 173 CLR 289; Director of Public Prosecutions (SA) v B (1998) 194 CLR 566; Wong v The Queen (2001) 76 ALJR 79; 185 ALR 233. ↑

79. R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254; Re Wakim; Ex parte McNally (1999) 198 CLR 511. ↑

84. Schutt Flying Academy (Australia) Pty Ltd v Mobil Oil Australia Ltd (2000) 1 VR 545. ↑

85. Ormiston, Phillips and Charles JJA; Winneke P and Brooking JA dissenting. ↑

86. Explained by Brooking JA in Schutt (2000) 1 VR 545 at 549 [9]. See also at 548 [7] per Winneke P. ↑

87. Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 31 October 2000 at 1252. ↑

89. Reasons of Gaudron, Gummow and Hayne JJ at [27]-[31]; reasons of Callinan J at [146]-[154]. ↑

90. Reasons of Gleeson CJ at [5]-[6]; reasons of Gaudron, Gummow and Hayne JJ at [35]-[43]; reasons of Callinan J at [155]-[167], [176]. ↑

91. The Attorneys-General of New South Wales, South Australia and Western Australia intervened. ↑

John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 535 [70]. ↑

John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 555-558 [137]-[143]. ↑

John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 558 [143]. ↑

John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 557 [143]. The history of representative actions, and the defects that occasioned the legislation on group proceedings in Australia, are explained in Australia, Law Reform Commission, Grouped Proceedings in the Federal Court, Report No 46, (1998) at 18-26 [40]-[61]. See also Yeazell, "From Group Litigation to Class Action", (1980) 27 University of California at Los Angeles Law Review 514, 1067 and the passage from Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398 at 429-430 cited by Callinan J at [172], fn 204. ↑

As in the decision of a court on the meaning of a trust deed which will be binding on members of the class, even if not represented in the proceedings, indeed even if not born at the time of the judicial determination. ↑

101. (1906) 4 CLR 297 at 308. See also at 310 per Higgins J; cf Sue v Hill (1999) 199 CLR 462 at 560 [257]-[258], 568-569 [278]-[280]. ↑

103. Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 355-357 [45]-[49]. ↑

Constitution, s 73; cf Abebe v The Commonwealth (1999) 197 CLR 510 at 530 [37]-[38], 588-589 [226]-[228], 603 [273]-[274]. ↑

Constitution, s 73. See Holmes v Angwin (1906) 4 CLR 297 at 302. ↑

In Wong v Silkfield Pty Ltd (1999) 199 CLR 255 no party advanced an argument that the federal legislation there considered was inconsistent with the requirements of Ch III of the Constitution. ↑

Leeth v The Commonwealth (1992) 174 CLR 455 at 487-490 per Deane and Toohey JJ, 501-503 per Gaudron J; Kruger v The Commonwealth (1997) 190 CLR 1 at 112-114 per Gaudron J (diss); Nicholas v The Queen (1998) 193 CLR 173 at 208-209 [73]-[74]; Ebner v Official Trustee in Bankruptcy (2000) 75 ALJR 277 at 289-290 [79]-[82], 295-296 [115]-[116]; 176 ALR 644 at 661-662, 670-671. ↑

South Australia v The Commonwealth (1962) 108 CLR 130 at 142, 152; Levy v Victoria (1997) 189 CLR 579 at 648-649; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 367-368 [81]. ↑

cf Yougarla v Western Australia (2001) 75 ALJR 1316 at 1329 [64], 1333-1336 [83]-[98]; 181 ALR 371 at 388, 393-397. ↑

cf Laurie v Carroll (1958) 98 CLR 310 at 323. See reasons of Gleeson CJ at [11]. ↑

John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 514-515 [2]-[3], 555-558 [137]-[143]. ↑

Constitution, s 122; cf Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 330-331 [5]-[7]; cf at 355-356 [88]; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 556 [139]. ↑

Constitution, s 106. See Yougarla v Western Australia (2001) 75 ALJR 1316 at 1329 [64], 1333-1336 [83]-[98]; 181 ALR 371 at 388, 393-397. ↑

124. Preamble to the Commonwealth of Australia Constitution Act 1900 (UK). ↑

125. Commonwealth of Australia Constitution Act 1900 (UK), ss 5, 6. ↑

126. See eg Constitution, s 118; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 532-534 [59]-[65], 556-558 [138]-[143]. ↑

128. R v Hughes (2000) 202 CLR 535 at 557 [45], 566-571 [67]-[81]. ↑

129. Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 451. ↑

131. Rich, Starke, Dixon and McTiernan JJ; Gavan Duffy CJ and Evatt J dissenting. ↑

134. For the territorial waters cases see Pearce v Florenca (1976) 135 CLR 507; Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340; for the taxation cases see Commissioner of Stamp Duties (NSW) v Millar (1932) 48 CLR 618; Trustees Executors & Agency Co Ltd v Federal Commissioner of Taxation (1933) 49 CLR 220; Australasian Scale Co Ltd v Commissioner of Taxes (Q) (1935) 53 CLR 534; Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337; and for the road transport cases see Welker v Hewett (1969) 120 CLR 503; Cox v Tomat (1972) 126 CLR 105; cf SGH Ltd v Commissioner of Taxation (2002) 76 ALJR 780 at 798 [92]; 188 ALR 241 at 266. ↑

135. Explained in Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 11-12. ↑

136. Kirmani v Captain Cook Cruises Pty Ltd [No 2] (1985) 159 CLR 461 at 464. See also Australia Act 1986 (Cth) (UK), s 11. ↑

137. Yougarla v Western Australia (2001) 75 ALJR 1316 at 1329 [64], 1333-1336 [83]-[98]; 181 ALR 371 at 388, 393-397. ↑

139. Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 10-11 citing Kielley v Carson (1842) 4 Moo PC 63 at 85 [13 ER 225 at 233]; Phillips v Eyre (1870) LR 6 QB 1 at 20; Ray v M'Mackin (1875) 1 VLR(L) 274 at 280; Macleod v Attorney-General (NSW) [1891] AC 455; Ashbury v Ellis [1893] AC 339; Peninsular and Oriental Steam Navigation Co v Kingston [1903] AC 471; and Attorney-General (Canada) v Cain [1906] AC 542. ↑

140. Delaney v Great Western Milling Co Ltd (1916) 22 CLR 150 at 161-162. ↑

142. Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 12. ↑

143. Bonser v La Macchia (1969) 122 CLR 177 at 189, 224-225; R v Bull (1974) 131 CLR 203 at 263, 270-271, 280-282; New South Wales v The Commonwealth (1975) 135 CLR 337 at 468-469, 494-495; Pearce v Florenca (1976) 135 CLR 507 at 514-520, 522. ↑

144. Trustees Executors & Agency Co Ltd v Federal Commissioner of Taxation (1933) 49 CLR 220 at 235. ↑

145. Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337 at 375; Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 13. ↑

147. Constitution Act 1975 (Vic), s 16. See also now Australia Act 1986 (Cth) (UK), s 2(1). ↑

148. Constitution Act 1975 (Vic), s 85(1) which provides for the jurisdiction of the Supreme Court "in or in relation to Victoria its dependencies and the areas adjacent thereto in all cases whatsoever" and that the Supreme Court "shall be the superior Court of Victoria with unlimited jurisdiction". ↑

149. Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 76 ALJR 203 at 227 [117], 229-233 [125]-[143]; 185 ALR 335 at 368, 371-376. ↑

150. eg Quick and Garran, Annotated Constitution of the Australian Commonwealth (1901) at 963. ↑

152. A fact appreciated at the time of the establishment of the Commonwealth. The provision first appeared in the Federal Council of Australasia Act 1885 (Imp), s 15. See Quick and Garran, Annotated Constitution of the Australian Commonwealth (1901) at 614. ↑

154. Laycock, "Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law", (1992) 92 Columbia Law Review 249 at 315-322. ↑

155. United States Constitution, Art I, s 8: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". See Tribe, American Constitutional Law, 2nd ed (1988), Ch 6. ↑

156. cf Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 468-472. ↑

157. CTS Corporation v Dynamics Corporation of America 481 US 69 at 93 (1987). ↑

159. Quick and Garran, Annotated Constitution of the Australian Commonwealth (1901) at 963. ↑

161. Constitution Act 1867 (formerly British North America Act 1867 (UK)). ↑

165. Interprovincial Co-operatives Ltd v The Queen [1976] 1 SCR 477 at 512-513. ↑

167. Interprovincial Co-operatives Ltd v The Queen [1976] 1 SCR 477 at 508-509; Royal Bank of Canada v The King [1913] AC 283. ↑

168. Interprovincial Co-operatives Ltd v The Queen [1976] 1 SCR 477 at 508: "[T]he fact that a party is amenable to the jurisdiction of the Courts of a province does not mean that the Legislature of that province has unlimited authority over the matter to be adjudicated upon." ↑

170. Adapting Viscount Sankey LC in British Coal Corporation v The King [1935] AC 500 at 520. ↑

175. Pearce v Florenca (1976) 135 CLR 507 at 518. ↑

176. Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340 at 372. ↑

177. Pearce v Florenca (1976) 135 CLR 507 at 518. ↑

cf Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed (1996), par 220. ↑

cf Port of Melbourne Authority v Anshun (1981) 147 CLR 589. ↑

Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340 at 374. ↑

Pidoto v Victoria (1943) 68 CLR 87 at 110-111. ↑

Re F; Ex parte F (1986) 161 CLR 376 at 385; Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 502. ↑

Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340 at 374. ↑

A schedule of differing periods provided by limitations legislation in the different States of Australia was tendered by Mobil. ↑

cf Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 at 480-481, 489; Ex parte McLean (1930) 43 CLR 472 at 483. ↑

188. Maritime Insurance Co Ltd v Geelong Harbor Trust Commissioners (1908) 6 CLR 194; Pegasus Leasing Ltd v Balescope Pty Ltd (1994) 63 SASR 51 at 57-58. ↑

189. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; cf Regie National des Usines Renault SA v Zhang (2002) 76 ALJR 551 at 556-557 [24]-[26], 567 [87], 577 [135], 587 [179]; 187 ALR 1 at 8-9, 22-23, 37, 51. ↑

191. Wong v Silkfield Pty Ltd (1999) 199 CLR 255 at 267 [28] by reference to the Federal Court of Australia Act. ↑

192. Section 33Q provides that, where the determination of the common questions of law or fact will not finally resolve the claims of all group members, the Court may give directions in relation to the determination of the remaining questions (including by way of individual questions: s 33R). Section 33S provides that, if a question cannot properly or conveniently be dealt with under ss 33Q or 33R, the Court may give directions for the commencement and conduct of another proceeding. Section 33ZE(2) specifically contemplates that a group proceeding may not finally dispose of a group member's claim. It is constitutionally permissible for a court to exercise jurisdiction over, and to determine, only part of a plaintiff's claim (see, in the federal context, Abebe v The Commonwealth (1999) 197 CLR 510). The suggested limitations rejected in Abebe have no relevance to a State court exercising State jurisdiction. ↑

193. The Commonwealth v New South Wales (1923) 33 CLR 1 at 54; Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117 at 127-128; Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 at 439; Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 451. ↑

194. Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 543, 586. ↑

196. There is a single Australian common law: see Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563-564; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 540 [86]. ↑

198. See the Act, s 33ZE; cf John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 543 [98]. ↑

199. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 534 [64]. ↑

200. Schutt Flying Academy (Australia) Pty Ltd v Mobil Oil Australia Ltd (2000) 1 VR 545 at 557. ↑

202. Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398 at 405. For a history of representative actions see at 416 per Toohey and Gaudron JJ. ↑

203. Esanda Finance Corporation Ltd v Carnie (1992) 29 NSWLR 382 at 388. ↑

204. In Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398 at 429-430, McHugh J put this view:

"[T]he recent cases have been more liberal in allowing representative actions to proceed. In the Age of Consumerism, it is proper that this should be so. The cost of litigation often makes it economically irrational for an individual to attempt to enforce legal rights arising out of a consumer contract. Consumers should not be denied the opportunity to have their legal rights determined when it can be done efficiently and effectively on their behalf by one person with the same community of interest as other consumers. Nor should the courts' lists be cluttered by numerous actions when one action can effectively determine the rights of many." ↑

205. Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. ↑

207. See Pearce v Florenca (1976) 135 CLR 507 at 518 per Gibbs J; Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1; Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340 at 372. ↑

209. See Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 567-568 per Mason CJ, Deane, Dawson and Gaudron JJ. See also Macgregor v Application des Gaz [1976] Qd R 175 at 176. ↑

212. Regie National des Usines Renault SA v Zhang (2002) 76 ALJR 551; 187 ALR 1. ↑

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." ↑

217. cf Loucks v Standard Oil Co of New York 120 NE 198 at 202 (1918). ↑

Moolpa Pastoral Co Pty Ltd v Merwin Pastoral Co Pty Ltd unreported, Supreme Court of Victoria per Macfarlan J cited (1933) 48 CLR 565 at 577 per Rich and Dixon JJ. ↑

(1988) 169 CLR 41 at 81, 96-97, 116, 133-134, 150. ↑

D St Leger Kelly, "Chief Justice Bray and the Conflict of Laws", (1980) 7 Adelaide Law Review 17 at 27-28. ↑

(1988) 169 CLR 41 at 81-82, 95-100, 116-117, 129-136, 150. ↑

John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 538-540 [81]-[85]. ↑

cf Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458; Buttigeig v Universal Terminal & Stevedoring Corporation [1972] VR 626; Macgregor v Application des Gaz [1976] Qd R 175; Jacobs v Australian Abrasives Pty Ltd [1971] Tas SR 92. ↑

McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513; David Syme & Co Ltd v Grey (1992) 38 FCR 303; Berezovsky v Michaels [2000] 1 WLR 1004; [2000] 2 All ER 986. ↑

227. Collins, "Interaction between Contract and Tort in the Conflict of Laws", (1967) 16 International and Comparative Law Quarterly 103; Pryles, "Tort and Related Obligations in Private International Law", (1991) II Recueil des Cours 9 at 166-191. ↑

228. Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340 at 374. ↑

229. Section 131 of the Motor Accidents Compensation Act 1999 (NSW) puts limits on recoverable damages in respect of non-pecuniary loss suffered from motor accidents. Those losses are recoverable only if the claimant's ability to lead a normal life is substantially impaired by the injury. Should damages be recoverable, a statutory ceiling has been set to limit the maximum amount of damages recoverable.

In South Australia, there are similar limits on the amount of damages recoverable at common law in motor accident claims: Wrongs Act 1936 (SA), s 35A(1).

In Victoria, common law actions may be brought for motor accidents only if the victim suffers a "serious injury": Transport Accident Act 1986 (Vic), s 93(2). Like New South Wales and South Australia, that State places statutory limits on maximum damages awards: Transport Accident Act 1986 (Vic), ss 44-62. ↑

230. WorkCover Queensland Act 1996 (Q), s 11, s 50, s 207, s 252, s 253, s 256, s 259, s 262, s 302; Bonser v Melnacis [2002] 1 Qd R 1.

From 1 July 1984 common law actions for transport related accidents were abolished for Northern Territory residents by s 5 of the Motor Accidents (Compensation) Act 1979 (NT). The Act defines a "resident" as a person resident in the Northern Territory for three months prior to the accident: Motor Accidents (Compensation) Act 1979 (NT), s 4.

Further, actions for loss of consortium are no longer allowed in New South Wales (Law Reform (Marital Consortium) Act 1984 (NSW), s 3) and Tasmania (Common Law (Miscellaneous Actions) Act 1986 (Tas), s 3). By contrast, in Queensland (Law Reform Act 1995 (Q), s 13) and South Australia (Wrongs Act 1936 (SA), s 33), the consortium action has been extended to permit wives to recover for the loss of their husband's services. The action for loss of consortium continues in an unamended form in Victoria - it is available only to husbands who lose the consortium of their wife. ↑

232. See discussion Agar v Hyde (2000) 201 CLR 552 at 601 [130]-[131] per Callinan J. ↑

233. For instance, as each State develops its workers' compensation, transport accident compensation, criminal injuries compensation and sporting accident compensation legislative schemes. ↑

234. Reasons of Gaudron, Gummow and Hayne JJ at [42]. ↑

235. Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1; Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340 at 374. ↑