Mynott v Barnard [1939] HCA 13;

Mynott v Barnard [1939] HCA 13; - HCA 1939 case summary — Zoe

[10]

In the first place it may be observed that the question which arises is a question of the construction of a statute. It is not a question whether a statutory provision, the construction of which is clear, is or is not within the territorial competence of the legislature. Parliament might have used language clearly introducing a particular territorial limitation. For example, it might have provided that any person who by a contract made in Victoria employs another person shall be liable to pay compensation in specified cases of accident, wherever the accident may take place. Such legislation would have been valid because it is within the power of the Victorian Parliament to attach legal consequences to the doing of an act (such as the making of a contract) in Victoria. Similarly, the statute might have been applied by its terms to all persons domiciled and resident in Victoria, or to all accidents in Victoria, or to all persons working in Victoria wherever the contract of employment was made, or to all contracts wherever made under which any work was to be done in Victoria where the accident also happened in Victoria, or more generally to any contracts which were in some defined sense Victorian contracts. Any such statute would, I think, have been a law "in and for Victoria" within the meaning of clause 1 of schedule 1 of 18 & 19 Vict. c. 55 (The Constitution Act) and would have been within the territorial competence of the legislature. But the fact that a provision in a particular form would have been within the competence of the legislature does not provide any positive assistance towards the true construction of a provision expressed in perfectly general terms without any territorial restriction. If it could be laid down as a rule that parliament must always be presumed to exercise its powers to the maximum possible extent, then the principles which govern territorial legislative competence would in some cases determine construction. But no such rule can be laid down. Such a rule would not be identical with or equivalent to the rule that a Dominion statute will be construed, if possible, so as not to exceed the proper limits of legislative territorial competence. This rule, as in Macleod v. Attorney-General for New South Wales[14], assists the interpretation of the statute by limiting it (where the words permit limitation) to matters within the territorial competence of the legislature. But the principle does not help towards the discovery of the appropriate territorial limitation to be applied where some limitation, as in the present case, obviously must be implied, but where various competing limitations are offered as all possibly applicable.

[11]

The question which arises is full of difficulty. No clear general rule has yet been established for the solution of such a question. In Macleod's Case[15] a territorial limitation was applied to an Act dealing with crime. It was based upon the principle that crime is local. The words construed were: "whosoever being married marries another person during the life of the former husband or wife, wheresoever such second marriage takes place, shall be liable" to a penalty. This provision was construed as being limited in its application to persons who, being married, married again in New South Wales. In Russell's Case[16] corresponding words in an English statute were not so read down, but were given their full significance. They were applied to all British subjects everywhere. In the case of taxation statutes the application of the Acts has been limited to persons things or circumstances within the territory of the taxing State (Commissioners of Stamps (Q.) v. Wienholt[17]). This canon of construction has been applied because it is to be assumed that it was the intention of the legislature to make its enactment effectual and not to transgress the limits of its power: See also Broken Hill South Ltd. v. Commissioner of Taxation (N.S.W.)[18] and the cases cited[19], and Commissioner of Stamps (Q.) v. Counsell[20]. But all these authorities only go to show the degree of connection with a territory which is required in order to establish the validity of a statute passed by the legislature of that territory. They do not assist towards determining the actual local applicability of legislation. In other words, the rule that a statute should be construed, if possible, so as not to exceed the territorial competence of the legislature, may be applied so as to limit the application of a statute, but not so as to determine its application within any limit ascertained as a result of applying the rule (Barcelo v. Electrolytic Zinc Co. of Australasia Ltd.[21]). The cases to which I have referred do show, however, that in considering the territorial competence of a legislature as an aid to construction in the manner stated, the particular subject matter of the legislation is an important element. Thus, in the case of a criminal statute, general words will be limited to persons within the jurisdiction. In the case of a taxing statute the court will ascertain whether residence or domicile or the possession of property within the jurisdiction or some other element has been adopted by the legislature to measure the scope of the application of the statute.

[13]

The mere fact that the contract of employment was made in Victoria is not satisfactory as a criterion of the applicability of the statute. The legislature might have adopted that criterion, but there is nothing to show that it has actually done so. Here again it is difficult to say very much more than that the subject matter is not such that the test suggested appears reasonable. It is true that the courts have referred to obligations under a workers' compensation statute as being statutory conditions of a contract of employment: See, for example, Workers' Compensation Board v. Canadian Pacific Railway Co.[22]; Hunter v. Städtische Hochseefischerei Gesellschaft[23]. Such an Act may be so described for the purpose of emphasizing the fact that liability under the Act arises only in cases where there is a contract of employment. But the obligations created by the statute cannot be said to be contractual in any sense. They have none of the characteristics of contractual obligations. They attach independently of the will of the parties. The parties cannot by agreement exclude or modify their own rights and obligations which arise under the Act. Dependants, who have rights under such a statute, have no contract with the employer and have no contractual rights whatever against the employer. If an employer and a worker were to agree that dependants should have no rights under the Act, it is clear that the agreement would be quite ineffectual. If they were to agree that rights of compensation should exist other than those created by the statute, the procedure of the statute would not be available for the enforcement of such rights. Thus the statute cannot be regarded as a statute prescribing terms and conditions of employment so as to be prima facie applicable to contracts made in Victoria. Indeed, it would be surprising if the fact that two Frenchmen, who happened to be in Victoria, made in Victoria a contract of employment in relation to work to be performed in France, should bring the Act into operation in relation to accidents which took place in France.

[14]

Next it is suggested that the Act applies in all cases where the governing law of the contract of employment is the law of Victoria, and in no other case. It is not easy to see why such a test should be selected for the purpose of construing in relation to its local operation a remedial statute of this character. Where there is what may be called a foreign element in a contract it may be necessary to refer to the law of more than one country for the purpose of determining all the questions which may arise in relation to the contract. It may be the law of one country which determines the capacity of the parties to contract, the law of another country which regulates the formalities of the contract, while a third country may supply the governing law of a contract, by which questions of material (as distinct from formal) validity, interpretation and the nature and extent of the obligations under the contract are determined. But this Act, for the reasons stated, cannot be regarded as an Act regulating contractual relations. In special cases, in the absence of any other clear indication of the intention of parliament, the governing law of a contract may be selected as the best practicable means of determining the territorial application of a statute which is essentially a statute dealing with contracts (Barcelo v. Electrolytic Zinc Co. of Australasia Ltd.[24]; Wanganui-Rangitikei Electric Power Board v. Australian Mutual Provident Society[25]). In those cases the court had to consider the applicability of a statute which altered the obligations of mortgages. The question was determined by adopting the principle that a legislature, in intervening for the purpose of varying existing contractual relations, might reasonably be supposed to be intending to deal with such obligations only where they were obligations created by contracts the governing law of which was that of the country of the legislature in question. Such a criterion, however, appears to be inapplicable to a statute which is not directed towards the alteration of obligations under existing contracts, but which is intended to prescribe a general rule of conduct for the future, within the sphere to which it is applicable, whatever may be the terms of any contracts which the parties may choose to make. As a general rule, the parties can fix their own governing law for their contracts. In Spurrier v. La Cloche[26], Lord Lindley said for the Privy Council: "That the intention of the parties to a contract is the true criterion by which to determine by what law it is to be governed is too clear for controversy." But, although this proposition is stated to be too clear for controversy, there is room for much controversy not only as to what the intention of the parties is in a particular case, but also as to the intention which the parties are allowed to have: See, for example, Cheshire, Private International Law (1935), pp. 183 et seq.; Dicey, Conflict of Laws, 5th ed. (1932), pp. 667 et seq., and a discussion in note 22, p. 958, especially at pp. 964, 965; per Evatt J. in Barcelo's Case[27]; Vita Food Products Inc. v. Unus Shipping Co. Ltd.[28].

[49]

The principle upon which the court went was that the obligations of the Workmen's Compensation Law were made an integral part of the relations of employer and employee which the State legislature undertook to regulate and that it did not assume to regulate employment outside the State. "The problem presented here is whether the State has undertaken to regulate the claimant's employment at a fixed place in Canada. Nothing in the statute suggests that the State of New York has attempted to stretch forth its arm to draw within the scope of its own regulations the relations of the employer and employee in work conducted beyond its borders. Hazardous employment here is regulated by the Workmen's Compensation Law; hazardous employment elsewhere, though connected with a business conducted here, does not come within its scope. ... The test in all cases is the place where the employment is located. When the course of employment requires the workman to perform work beyond the borders of the State, a close question may at times be presented as to whether the employment itself is located here. Determination of that question may at times depend upon the relative weight to be given under all the circumstances to opposing considerations. The facts in each case, rather than juristic concepts, will govern such determination. Occasional transitory work beyond the State may reasonably be said to be work performed in the course of employment here; employment confined to work at a fixed place in another State is not employment within the State, for this State is concerned only remotely, if at all, with the conditions of such employment. Such illustrations may indicate the manner in which the test should be applied; we do not now attempt a more definite classification intended to cover all the varying circumstances that may enter into the question in other cases. Here it seems to us quite evident that the claimant was not employed in New York. His employment required him to work only in a fixed place in Canada"[73].

At a glance

Court

Decision date

Before

Source

Judgment (73 paragraphs)

Mynott v Barnard [1939] HCA 13; (1939) 62 CLR 68 (11 May 1939)

Parties

Legislation Cited (1)

Cases Cited (1)