Pozniak v Smith

High Court of Australia|1982-07-01|Before: Brennan JJ, Stephen J, Aickin J, Brennan J

High Court of Australia Gibbs C.J. Mason, Aickin, Wilson and Brennan JJ. Pozniak v Smith [1982] HCA 39

ORDER Order that the matter be remitted to the Supreme Court of Queensland. Further order that the taxed costs of the applications including reserved costs be paid by the plaintiff to the defendant.

This is a reference, pursuant to s. 18 of the Judiciary Act 1903 Cth as amended, of an application by the plaintiff to remit a matter now pending in the original jurisdiction of this Court to the Supreme Court of New South Wales. The reference was made by Stephen J. In addition to the application instituted by the plaintiff, there is an application by the defendant for the action to be remitted to the Supreme Court of Queensland. The Court agreed to hear both applications together.

The plaintiff, a resident of New South Wales, claims damages in respect of personal injury suffered by him as a result of the negligent driving of a motor vehicle by the defendant, a resident of Queensland. The accident happened in Queensland. It is a matter within the original jurisdiction of this Court by reason of s. 75(iv) of the Constitution. The defendant has admitted liability, but proposes to claim that the plaintiff was guilty of contributory negligence. This will be a contested issue. The quantum of damage is also in issue.

The applications which are now before the Court seek the exercise of the Court's discretion pursuant to s. 44 of the Judiciary Act. That section provides:

Any matter that is at any time pending in the High Court, whether originally commenced in the High Court or not, may, upon the application of a party or of the High Court's own motion, be remitted by the High Court to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties, and, subject to any directions of the High Court, further proceedings in the matter shall be as directed by the court to which it is remitted.

In Johnstone v. The Commonwealth [1] , this Court held, by a majority, that s. 44 empowers the Court to remit a claim in tort made by a person against the Commonwealth to a court which has jurisdiction in tort and in matters in which the Commonwealth is a defendant, although that court would not have had jurisdiction if proceedings had been instituted there in the first instance. The decision is authority for the proposition that the Court is not limited, in its exercise of the power conferred by the section, to remit to a court that would have jurisdiction independently of the remission; it is sufficient if the remission is to a court "having jurisdiction over the same kind of party and the same kind of subject matter as that over which the High Court has jurisdiction" (per Aickin J. in Johnstone [2] ).

(1979) 143 C.L.R. 398. 2. (1979) 143 C.L.R., at p. 408.

In terms, the discretion conferred on the Court by s. 44 is wholly unfettered. It would be unfortunate if the Court were to elevate guiding principles into rigid rules which served to limit what was obviously intended to be a large and general power. A problem arises where there are competing claims to the exercise of the discretion in favour of Supreme Courts in different States. In the case of a claim for damages in tort, the competition will often be between the Supreme Court in the State where the cause of action arose and the Court in another State where the plaintiff resides and where by reason of the likely issues and evidence in the case an application for remission to that Court is based on the balance of convenience. This was the case in Weber v. Aidone [3] . There the Full Court affirmed a decision of Aickin J. where his Honour had held that the balance of convenience was slightly in favour of the remission of the action to the Supreme Court of Victoria, notwithstanding that the accident from which the cause of action arose had occurred in South Australia. The Court acknowledged, however, that the fact the accident occurred in South Australia was an important consideration in the exercise of the discretion.

On the other hand, in two other cases - Guzowski v. Cook [4] and Robinson v. Shirley [5] , decided by Gibbs C.J. and Brennan J. respectively - the matters were remitted to the Supreme Court of the State in which the cause of action arose. In the former case, the plaintiff, being resident in Victoria, sought a remission to the Supreme Court of that State. The application was based on the balance of convenience. While recognizing some inconvenience to medical witnesses if the action were not heard in Victoria, the Chief Justice found it appropriate to remit the matter to the Supreme Court of Queensland. He was led to that conclusion by the consideration that at the time of the collision which gave rise to the cause of action the plaintiff was resident in Queensland and suffered a nervous breakdown, allegedly as a result of the accident, in Queensland, and by the further consideration that if the proceedings had not been instituted in the High Court the "overwhelming likelihood" was that they would have been instituted in Queensland.

(1981) 149 C.L.R. 128. 2. (1982) 149 C.L.R. 132.

In Robinson v. Shirley the choice was between the Supreme Courts of Queensland and New South Wales. There were two actions, Mr. and Mrs. Robinson having each suffered personal injury in the same accident in 1974. Mr. Robinson died in 1980, and Mrs. Robinson in her capacity as executrix of the will of Mr. Robinson was named as a party to carry on the action for the benefit of his estate. Brennan J. noted that in such an action the law of Queensland prescribes different measures of damage from those prescribed by the law of New South Wales. He observed that where the action is a claim for damages in tort, there are powerful reasons for adopting the law of the place where the tort is committed, and then said [6] :

If it were not for the existence of an obligation under that law, no cause of action would be enforceable under any other body of law which might be made applicable to the resolution of the matter. The law of the place where the tort was committed is the law which first gives rise to the cause of action, and it is material that the courts of a State or Territory other than the State or Territory in which the tort was committed would not have jurisdiction unless the defendant were served within the State or Territory or unless he entered an unconditional appearance, for the plaintiff could not otherwise make the defendant amenable to that court's jurisdiction: cf. Weber v. Aidone and Guzowski v. Cook With respect to the plaintiff's claim that Sydney would be a more convenient venue for trial than Brisbane, his Honour said [7] : I am not persuaded that convenience in the conduct of the trial is a factor which is capable of affecting the exercise of the discretion which must choose between two systems of law which confer rights of different measures upon the plaintiff. But it is not necessary for me to decide that question in the present case, for the balance of convenience does not clearly favour a trial in Sydney. In the result, the action was remitted to the Supreme Court of Queensland. 1. (1982) 149 C.L.R., at p. 136. 2. (1982) 149 C.L.R., at p. 137.

Mr. Sharpe, counsel for the plaintiff, argues that the balance of convenience is the most important of the factors affecting the exercise of a discretion pursuant to s. 44. On the other hand, Mr. Jackson, counsel for the defendant, argues that ordinarily in this type of case the remittal should be to the Supreme Court of the State in which the cause of action arose. It is plain that the observations of Brennan J. contained in the first of the two passages which we have cited from Robinson v. Shirley stand in the way of the success of Mr. Sharpe's submission. However, he contends that the proposition put by his Honour is in direct conflict with both the majority decision of this Court in Johnstone and its unanimous decision in Weber . We do not think the argument can be sustained. In Johnstone [8] , the Court was concerned with the scope of the power, not with the manner of its exercise. In Weber , as we have already observed, the Court recognized that the fact the accident occurred in South Australia is an important consideration in the exercise of the discretion. Obviously, it was not seen to be the only consideration, nor necessarily a decisive consideration in every case.

The present case presents a factor for consideration which has not required determination in any of the cases to which we have referred. It is the question to which Brennan J. alluded but found unnecessary to decide in Robinson v. Shirley. Is the balance of convenience a factor which is capable of affecting the exercise of the discretion when the choice is between two systems of law which confer rights of different measures upon the plaintiff? The question would have arisen in Weber [9] had not the plaintiff abandoned the claim to solatium, a claim which was tenable under the law of South Australia but not under the law of Victoria.

The law of Queensland touching the conduct and determination of actions for damages in respect of personal injury arising out of the negligent driving of a motor vehicle differs in significant respects from the law of New South Wales. It was suggested in argument that the power to remit an action to another court carries with it a power to give directions as to the law which is to be applied by the receiving court, and that in the present case if the remitter were to be made in favour of the Supreme Court of New South Wales, that Court could be required to apply the law of Queensland in the disposition of the matter. Such a construction of s. 44 cannot be countenanced. The phrase "subject to any directions of the High Court" controls the statement in the section which immediately follows it, namely, "further proceedings in the matter shall be as directed by the court to which it is remitted". Clearly, in our opinion, the power in this Court to give directions is confined to matters of procedure. The substantive rights of the parties will be determined by the law of the forum.

Mr. Jackson draws the attention of the Court to three matters of difference between the law of Queensland and the law of New South Wales which he claims could be material in the present case. First, s. 5 of the Common Law Practice Act 1867-1981 Q. requires an award of damages in the form of lump sum compensation for future loss, whether referable to earning capacity or future expenditure, to be the present value of that sum calculated in accordance with actuarial tables at a discount rate of 5 per cent or at such other discount rate as at the time of the award may have been fixed by the Governor in Council. The Governor in Council has made no fixation to date. In similar circumstances, an award determined according to the law of New South Wales would require the application of a discount rate of 3 per cent: Todorovic v. Waller [10] . Secondly, regs 10 and 11 of The Motor Vehicles Insurance Regulations of 1968 (Q.) as amended, provide that the insurer of a vehicle in respect of which a proceeding is instituted is entitled to be joined in the proceeding, and thereafter to conduct the proceedings on behalf of the person against whom the claim is made. Thirdly, pursuant to s. 4C of the Motor Vehicles Insurance Act 1936-1979 Q., there may be circumstances in which, if an injured person has persistently and wilfully refused to comply with an order of the court to submit himself to a personal medical examination, the court may enter judgment against the plaintiff on such terms as it deems fit. It is unnecessary to define precisely, in these second and third respects, the nature of the distinctions which are to be drawn with the law of New South Wales nor the extent of the materiality if any which they may import in the present case. The different discount rates which might apply in the assessment of damages according to whether the remitter is to Queensland or to New South Wales is sufficient to identify the problem. It is a distinction which goes directly to the heart of the matter, and renders the decision of this Court on a remitter application a significant factor in the ultimate result of the action. Assuming that the Queensland discount rate remains unchanged, a decision in favour of New South Wales would have the effect of conferring a fortuitous advantage on the plaintiff and a corresponding disadvantage on the defendant, as compared with the rights of the parties if the case were determined in accordance with the law of the State where the cause of action arose. Is there any principle by which such a result could be justified? It may be helpful to consider what criteria, if any, are available to guide or control the exercise of the discretion.

Section 75(iv) of the Constitution confers original jurisdiction on this Court in all matters between residents of different States. The provision follows a similar clause in the Constitution of the United States of America (Art. III, s. 2) with the substitution of "residents" for "citizens". In Australasian Temperance and General Mutual Life Assurance Society Ltd. v. Howe [11] , Higgins J. said of the clause:

We might think that the jurisdiction given in matters "between residents of different States" is a piece of pedantic imitation of the Constitution of the United States, and absurd in the circumstances of Australia, with its State Courts of high character and impartiality. According to Story and Black (Constitutional Law, 2nd ed., p. 140), the reason for giving to the Federal Courts jurisdiction of controversies between citizens of different States was the apprehension that a citizen sued in Courts of his own State by a non-resident might be able to prevail unjustly in consequence of his local influence, or the prejudice against citizens of other States, or State pride and jealousy. (See also per Isaacs J. [12] ; Starke J. [13] .) Whether merely imitative or not, its purpose is to provide an impartial forum: Quick & Garran, Annotated Constitution of the Australian Commonwealth, p. 776; and cf. Guaranty Trust Co. v. York [14] . There is no reason to suppose that its purpose was to provide a different body of law for the resolution of such a matter, even though that may have been the result in the event of the action being heard in the High Court in a State other than that in which the cause of action arose (see s. 79, Judiciary Act). It follows that the criteria we seek are not to be found in a consideration of the source of the jurisdiction of this Court. It is also clear that they cannot be discerned from the terms in which the power to remit is conferred by s. 44 of the Judiciary Act. That provision does no more than create the power, without furnishing any guidance as to its exercise. 1. (1922) 31 C.L.R. 290, at p. 330. 2. (1922) 31 C.L.R., at p. 307. 3. (1922) 31 C.L.R., at p. 339. 4. (1945) 326 U.S. 99, at pp. 111-112 [89 Law. Ed. 2079, at pp. 2087-2088].

As we have said, Mr. Sharpe argues that the balance of convenience provides the most important criterion. The proposition may be examined in the context of the present case. It is said that the balance of convenience overwhelmingly favours a remittal to New South Wales. The convenience upon which Mr. Sharpe relies relates primarily to the likely preponderance of the number of witnesses resident in that State, the difficulties associated with moving a number of specialist medical witnesses from one State to another and physical difficulty which by reason of his injuries the plaintiff would have in travelling to Queensland for examination by the defendant's specialists. It may be conceded at once that these features of the case would be a source of inconvenience in the event of a hearing in Queensland, and that the balance does in fact favour a hearing in New South Wales. But inconvenience is always a question of degree. In the present case, it does not spell impracticability. It does not spell injustice. For example, the defendant has offered to have the plaintiff examined in Sydney, and hence he would not have to travel to Brisbane for that purpose. If the difficulties associated with moving a number of medical witnesses to Brisbane became too great, the plaintiff could invoke the procedure of having their evidence taken upon commission. We do not seek to minimise the relevance of the factor of convenience in a case where the applicable law in the competing jurisdictions is substantially similar. It is then of great importance. However, in our opinion, it cannot go beyond that, unless the circumstances are wholly exceptional. The balance of convenience cannot be allowed to lead to injustice. The only safe course, in a case where the relevant law in the competing jurisdictions is materially different in its effect on the rights of the parties, is to remit to the State whose law has given rise to the cause of action. As Brennan J. observed in Robinson v. Shirley, the power "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" [15] .

Accordingly, in our opinion, in a case such as the present, the Court has no real choice, notwithstanding the breadth of the discretion, but to remit the matter to the Supreme Court of Queensland. Only in that forum, as the respective laws now stand, will the parties have their dispute determined consistently with justice according to law.

We would order that the matter be remitted to the Supreme Court of Queensland.

The question at issue is: According to what principle should the Court exercise the discretion given to it by s. 44 of the Judiciary Act 1903 Cth, as amended, to remit an action for damages in tort to one of the courts mentioned in the section, when the choice lies between the Supreme Courts of two States and there is a material difference in the laws of the two States which would affect significantly the plaintiff's rights, in this case the assessment of his damages?

I put to one side cases where there is no material difference in the laws of the States. Then the choice of the court to which the matter will be remitted will be dictated by the balance of convenience (Weber v. Aidone [16] ).

The problem of making a choice of the kind to be made here was enlarged, but not created, by the Court's decision in Johnstone v. The Commonwealth [17] , that it is not necessary that the court receiving the remitter could, independently of the remitter, have jurisdiction to hear and determine the matter - it is enough if it has jurisdiction over the same kind of party and the same kind of subject matter. The problem would still have arisen if the Court had taken a more restricted view of the power to remit than that taken in Johnstone. Residence or presence of the defendant in more than one State and the existence of assumed jurisdiction are but two instances of two or more courts having jurisdiction to entertain the one cause of action. But the effect of Johnstone, which acknowledges that the order of remitter operates as a grant of jurisdiction to the court which is the recipient of the remitter, where it otherwise lacks jurisdiction, is to increase the situations in which there is a need to make a choice of the kind now to be made.

Apart from Gleeson v. Williamson [18] , a decision on a related but different question, to which I shall refer shortly, the problem seems not to have been the subject of any judicial decision. In essence the problem has its origin in the notion of a federal court deciding a case between residents of different States without having available a specific body of rules specifically designed for its disposition of the case. This gap is filled by s. 79 of the Judiciary Act which requires a federal court, including the High Court, to apply the laws of the State, including the rules of private international law, in which it exercises jurisdiction.

Gleeson shows that before the Judiciary Amendment Act 1976 Cth came into operation the Court was confronted with the problem of deciding where it should hear an action when there was a material difference in the laws of the States in which the action might be heard. By virtue of s. 79 the Court's choice of the place of hearing would effectively determine the applicable law. Section 25 of the High Court Procedure Act 1903-1966 Cth conferred power to direct that the trial shall be had or continued at some particular place, "subject to such conditions (if any) as the Court or Justice imposes". This provision had to be read with s. 6 dealing with proceedings in district registries, s. 7 relating to transfer of causes from one registry to another and s. 8 providing for a temporary transfer of a cause from one registry to another.

The difference between that situation and this is that there the Court in deciding where the case would be heard was determining the law which would be applied. Here the Court, under the new s. 44 of the Judiciary Act, by deciding which court shall hear the case is determining the law which will be applicable.

However, there is something to be said for the view that in making an order for remitter the Court should be guided by those criteria which would influence its decision in determining the place of hearing if the Court, instead of remitting, were itself to proceed to hear and determine the case. It is scarcely acceptable that the Court by its order for remitter should identify as the law to be applied a law which differs from the law which this Court would have applied had it proceeded to exercise the jurisdiction invoked by the plaintiff, a jurisdiction vested in it by the Constitution.

Several possible approaches present themselves. In examining them we need to recall the impact of the rules of private international law which form part of the law of each State and which this Court is bound to apply under s. 79 of the Judiciary Act. 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 [19] ; Anderson v. Eric Anderson Radio & T.V. Pty. Ltd. [20] ; Boys v. Chaplin [21] ). Whether this rule is merely a preliminary or "threshold" rule or whether it also operates as a choice of law rule has been a matter of vigorous debate. See the discussion in Nygh, Conflict of Laws in Australia, 3rd ed. (1976), pp. 258 et seq. However, as the author indicates, the balance of Australian authority favours the preliminary or threshold view. It also holds that it is the lex fori that determines questions of substance - Koop; Anderson [22] , per Windeyer J.; Kolsky v. Mayne Nickless Ltd. [23] . In the first of these cases this Court specifically rejected the suggestion that the lex loci delicti should be applied as the substantive law [24] . In the United States of America the lex loci delicti is applied as the substantive law in some jurisdictions, although in more recent times there has been growing support for the view that there should be applied as the substantive law the law of the State which has the most significant relationship with the occurrence and the parties, what is often called "the proper law of the tort" (see Babcock v. Jackson [25] ), an approach which Lord Hodson and Lord Wilberforce favoured in Boys [26] . In Koop this Court favoured the application of the lex fori to matters of substance. This has the advantage of making the lex fori apply to issues of substance as well as procedure.

(1951) 84 C.L.R. 629, at p. 642. 2. (1965) 114 C.L.R. 20. 3. [1971] A.C. 356. 4. (1965) 114 C.L.R., at pp. 41-42. 5. (1970) 72 S.R. (N.S.W.) 437, at p. 444. 6. (1951) 84 C.L.R., at p. 644. 7. (1963) 12 N.Y. (2d) 473 [240 N.Y.S. (2d) 743]. 8. [1971] A.C., at pp. 379-380, 390-392.

For present purposes it is sufficient to say that the selection of the court of one State as the recipient of remitter in preference to the court of another State will be important when there is a material difference in the law to be applied. The significance of this difference is not erased by the rules of private international law because questions of procedure are always to be determined by the lex fori and, according to Koop , so are questions of substance in actions in tort. Quantification and assessment of damages, the principal bone of contention here, are always matters of procedure to be determined by the lex fori (Boys [27] , per Lord Wilberforce).

The first possible approach to remitter is that the balance of convenience is the guiding factor. Although traditionally it has been the factor that determines venue, except for Gleeson this has been in a context where no problem of choice of law arises. In Gleeson [28] Barwick C.J. dealt with an application to transfer a cause from the then principal registry in Victoria to the registry in New South Wales and for an order that the venue be Sydney. The plaintiff, a resident of New South Wales, had commenced in the registry of that State his action for damages for personal injury arising out of a motor vehicle accident in Queensland. The defendant, a resident of Queensland, entered an appearance in the principal registry, which, subject to the power of transfer, had the effect of causing the proceedings to proceed in that registry. The defendant's object was to plead that the action was barred by s. 5(6) of the Limitation of Actions Act 1958 Vict., a defence which would not have been available had the action remained in the registry in which it had been commenced and been heard in Sydney. His Honour seems to have thought that the plaintiff had a right to commence his action in the registry of his choice, so long as in so doing he was not "forum shopping", and that the exercise of this right should not be displaced by the filing of an appearance in the principal registry if the cause had no connexion with that registry except a desire to attract the Victorian limitation provision. His Honour then decided on the New South Wales registry and trial in Sydney in preference to Queensland on the balance of convenience.

In deciding between New South Wales and Victoria, whose laws were materially different, his Honour seems to have been influenced, not so much by the balance of convenience, as by the plaintiff's right to choose the place in which he brings his action. However, a balance of convenience dictated the choice between New South Wales and Queensland where once again the laws seem to have been materially different. The decision is perhaps partly to be explained by the specific provisions of the High Court Procedure Act and the importance which attached to the commencement of proceedings in a particular registry.

For my part, however, I would resist the notion that in determining which court shall hear the case when there is a material difference in the laws of the States we should give effect to the so-called right of the plaintiff to select the place of hearing, subject only to the balance of convenience. It is inconsistent with a just result that the plaintiff should be able to select the forum which applies the law most favourable to his cause, so long as he is not "forum shopping".

Although the unfairness of this approach is reduced by making it subject to the balance of convenience, that concept suffers from the shortcoming that it is not designed to operate as a selector of the applicable law and it has no direct relevance to the choice of law. Its one virtue is that it is an objective and independent criterion, leading to a result which in many cases may be reasonable, but in some cases it may lead to a hearing by the court of the State where the medical witnesses reside and that will probably coincide with the State in which the plaintiff resides. Yet the law of that State may have little or no connexion with the cause of action. There is even the possibility that issues will be raised and witnesses called in order to establish a balance of convenience favouring remission to a court of a particular State.

The second approach, that favoured by Brennan J. in Robinson v. Shirley [29] , is to select the lex loci delicti. Rejecting convenience as a criterion, his Honour said [30] :

In making the choice, the rules of private international law provide no binding guidance, for the choice of law follows inexorably from the place where the jurisdiction is exercised. A similar problem arises when this Court exercises a discretion to remit an action for trial by a Supreme Court of a State or Territory: the choice of the court to which the action is remitted determines the body of law which is to be applied to it. Where the action is a claim for damages in tort, there are powerful reasons for adopting the law of the place where the tort is committed. If it were not for the existence of an obligation under that law, no cause of action would be enforceable under any other body of law which might be made applicable to the resolution of the matter. The law of the place where the tort was committed is the law which first gives rise to the cause of action, and it is material that the courts of a State or Territory other than the State or Territory in which the tort was committed would not have jurisdiction unless the defendant were served within the State or Territory or unless he entered an unconditional appearance, for the plaintiff could not otherwise make the defendant amenable to that court's jurisdiction . 1. (1982) 149 C.L.R. 132. 2. (1982) 149 C.L.R., at p. 136.

The attraction of this approach is obvious. It provides a clear and objective test which identifies that law which makes unlawful the act or omission complained of at the time when it occurs. Therefore it is, generally speaking, the law most closely connected with the circumstances giving rise to the cause of action. It immediately concedes to the plaintiff a cause of action against the wrongdoer, assuming of course that he survives.

In saying this I do not indorse the theory that the act complained of gives rise to an obligation by the lex loci delicti and that this obligation follows the actor with a result that it may be enforced against him wherever he is found. This theory, which seems to have originated with Willes J. in Phillips v. Eyre [31] , was elaborated by Holmes J. in Slater v. Mexican National Railroad Co. [32] and Western Union Telegraph Co. v. Brown [33] and by McReynolds J. in New York Central Railroad Co. v. Chisholm [34] , and adopted by Cardozo J. in Loucks v. Standard Oil Co. of New York [35] , though rejected by Judge Learned Hand in Guinness v. Miller [36] . The theory was discarded by Dixon, Williams, Fullagar and Kitto JJ. in Koop . They said [37] "courts applying the English rules of private international law do not accept the theory" and went on to say [38] :

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. 1. (1870) L.R. 6 Q.B. 1, at p. 28. 2. (1904) 194 U.S. 120, at p. 126 [48 Law. Ed. 900, at pp. 902-903]. 3. (1914) 234 U.S. 542, at p. 547 [58 Law. Ed. 1457, at p. 1459]. 4. (1925) 268 U.S. 29, at p. 32 [69 Law. Ed. 828, at p. 832]. 5. (1918) 120 N.E. 198, at p. 201. 6. (1923) 291 F. 769, at p. 770. 7. (1951) 84 C.L.R., at p. 643. 8. (1951) 84 C.L.R., at p. 644.

See also Anderson [39] , per Windeyer J.; Boys [40] , per Lord Hodson; and the discussion of English, Australian and Canadian authority by Lord Wilberforce in Boys [41] . His Lordship, speaking of the theory, said [42] "It can hardly be restored now by anything less than a revolution in thought."

(1965) 114 C.L.R., at pp. 41-42. 2. [1971] A.C., at pp. 375-376. 3. [1971] A.C., at pp. 385-387. 4. [1971] A.C., at p. 386.

Some of the criticism that has been directed to the lex loci delicti as the applicable law governing the substance of an action in tort arising out of an act or omission in a foreign country has no relevance to the question now under consideration. The problems, often stressed, of proving what the foreign law is and how it applies to the matter in hand, have no counterpart when we come to apply the law of one State of Australia in the courts of another State. Certainly they can have no operation when the remitter is to the court of the locus delicti.

Yet the question whether the lex loci delicti remains the most appropriate law to be applied in all cases is very much open to debate. What of the case where a passenger in a car is injured by the negligence of a driver in State A and both, being relatives, are resident in State B? Or of the case where X assaults Y when both are on holiday in State A, each being residents of State B? And there are cases in which an alleged wrongful act is connected with many jurisdictions, e.g., "where a negligent act takes place in one country and harm is suffered in another, or a person is defamed through media such as radio or television" (Dicey and Morris on The Conflict of Laws, 10th ed. (1980), p. 933; Gorton v. Australian Broadcasting Commission [43] ).

In Boys [44] Lord Wilberforce, after noting that most foreign torts relate to personal injuries sustained by persons travelling away from their place of residence, the place where the wrong occurs being fortuitous, stated:

To fix the liability of two or more persons according to a locality with which they may have no more connection than a temporary, accidental and perhaps unintended presence, may lead to an unjust result. 1. [1971] A.C., at p. 388.

The third approach, suggested by these comments, is that the Court should remit to a court in a State whose law has the most significant relationship with the occurrence and the parties, sometimes called the proper law of the tort. In most, though not in all, cases this would result in remitter to a court of the State in which the alleged tort was committed.

The fourth approach is to remit to the court which would ordinarily have exercised jurisdiction in the instant case but for the circumstance that the plaintiff commenced his action in the High Court. One complication here is that courts have assumed, as well as inherent, jurisdiction. In other circumstances one would naturally look to the court which has inherent, rather than assumed, jurisdiction. But, as Brennan J. pointed out in Robinson [45] , the jurisdiction of a federal court is Australia wide and that is the jurisdiction which the plaintiff has invoked here, with the result that in the exercise of its jurisdiction this Court has a discretion to decide where the action should be heard, thus determining the applicable law. If the courts were to adopt a criterion favouring the court which possesses inherent jurisdiction as the recipient of a remitter, the applicable law in the receiving court might well differ from the law which would have applied in this Court, because in fixing the place of hearing this Court, if it declined to remit, would not have exclusive or paramount regard to the State of residence of the defendant. Indeed, underlying the wide scope accorded to the power to remit in Johnstone was a recognition of the desirability of minimizing the effect of the strict jurisdictional limits of State and federal courts, limits which might materially constrain the choice of this Court in selecting a recipient. By adopting a broad construction, the Court ensured that a hearing and determination after remitter would, as nearly as possible, approximate a hearing in this Court. It would not be consistent with that approach to now adopt a criterion which would restrict the exercise of the discretion to a court having inherent jurisdiction. This would be to undo the good work already done in Johnstone.

All that I have said induces me to conclude that it would be a mistake to say that in every case of the class now under consideration we should apply an inflexible approach. We should preserve the width of the discretion, the object of which is to do justice between the parties. That will be done if, generally speaking, we select in personal injury cases, if not in all tort cases, the courts of the State where the injury occurred, so that the law of that State, the lex loci deliciti, will determine the rights and liabilities of the parties, unless, with respect to the particular issue, some other State has a more significant relationship with the occurrence and the parties, in which event the case will be remitted to that State and its law will be applied.

The pursuit of this approach in the present case inevitably leads to a remission to the Supreme Court of Queensland. Queensland was the State of occurrence of the act complained of. Apart from the fact that the plaintiff resides in New South Wales and that he was a temporary visitor in Queensland, a fact at least counterbalanced by the circumstance that the defendant is and has been a resident of Queensland, no other State has any relationship with the occurrence and the parties. Remission to the Supreme Court of Queensland will result in the trial of the action according to the law of Queensland which includes s. 5 of the Common Law Practice Act 1867-1981 Q. requiring the assessment of lump sum damages for future loss at a discount rate of 5 per cent, in lieu of the 3 per cent discount rate which prevails in New South Wales as a result of this Court's decision in Todorovic v. Waller [46] .

In conclusion I should express my rejection of the submission that the Court could, if it remitted to the Supreme Court of New South Wales, direct that court to apply the law of Queensland. The clause "subject to any directions of the High Court", which appears in s. 44 and is the foundation for the submission, governs "further proceedings in the matter" in the receiving court which, subject to this Court's directions, "shall be as directed" by that Court. It is apparent that the clause empowers this Court to give direction as to pre-trial and trial procedures. It does not arm this Court with a power to instruct the Supreme Court of one State that it shall ignore the law of that State and apply instead the law of another State.

The submission reflects an idea which has been thought by some to be embodied in s. 25 of the High Court Procedure Act 1903-1973 Cth, that Act having been repealed in 1979. Section 25 enabled the Court to fix or change the venue "subject to such conditions as the Court or Justice imposes". In the context of a hearing by this Court, it has been suggested that the Court would change the venue from State A to State B on a consideration of the balance of convenience, subject to the condition that the trial shall be governed by the law of State A - see Pryles and Hanks, Federal Conflict of Laws (1974), p. 183. In Parker v. The Commonwealth [47] , Windeyer J., though the trial of the action took place in Melbourne, delivered judgment in Sydney on the footing that the law of Victoria applied "to avoid keeping the parties waiting until the Court next sits in Melbourne" and "on the view, which both parties urge, that jurisdiction in the case is to be taken as having been exercised in Victoria" [48] .

(1965) 112 C.L.R. 295. 2. (1965) 112 C.L.R., at p. 306.

Even assuming, without deciding, that s. 25 enabled a condition of the kind to be imposed, s. 44 stands in a very different situation. It is one thing for this Court to say that it will apply the law of a particular State, a law which it is bound to apply in certain circumstances, when it exercises jurisdiction. It is quite another thing for this Court to say to the court of the State that in the exercise of its jurisdiction it must not apply a law of that State. To do so would be to order the State court to disobey the clear command contained in s. 79. And, as we have seen, the construction of s. 44 points away from the existence of such a power.

In the result I would remit the action to the Supreme Court of Queensland.

[The Honourable Mr. Justice Aickin died before judgment was delivered in this case.]

At a glance

Court

Decision date

Before

Source

Judgment (57 paragraphs)

Parties