Robinson v Shirley

On 21 December 1979, Norma Isabelle Robinson and her husband Mervyn Harold Robinson each issued a writ out of the principal registry of this Court against the defendants, claiming damages for negligence occasioning personal injuries. The actions arose out of an accident which occurred on 4 January 1974. The plaintiffs were struck by a motorcycle owned by the second defendant and driven by the first defendant at or near the intersection of Anzac Avenue and Elizabeth Drive, Kippa-Ring, in Queensland. The actions were said to be between residents of different States and thus within the original jurisdiction of this Court.

Mr. and Mrs. Robinson were residents of New South Wales. It seems to be common ground that the defendants are and were at material times residents of Queensland. On the footing that the actions are within the original jurisdiction of this Court, the defendants applied pursuant to s. 44 of the Judiciary Act 1903 Cth for orders remitting the actions to the Supreme Court of Queensland.

Mr. Robinson died on 10 November 1980 in Sydney. Mrs. Robinson is the executrix of his will.

On 25 June 1981 the applications for remittal came on for hearing in Brisbane. They were heard together. By that time defences had been delivered. By par. 5 of the respective defences the defendants had pleaded that the actions were statute barred. Paragraph 5 reads:

Further the Defendants say that this action is statute barred in that it has been commenced after three years after the cause of action arose contrary to the provisions of Sections 4 and 5 of the Law Reform (Limitation of Actions Act) Act of 1956 which was in force on the 4th day of January, 1974.

A question was raised on the hearing of the applications as to whether the Queensland statute of limitations would defeat the claims if the actions were remitted to the Supreme Court of Queensland, though the statute has no application to actions instituted in this Court (Pedersen v. Young [1] ). An adjournment was sought in order that instructions might be obtained and argument prepared with respect to the effect of the statute on the actions if remittal orders were made. In Mrs. Robinson's action, leave was given to file a reply and demurrer out of time. Subsequently a reply and demurrer was delivered, the relevant parts of which read as follows:

The plaintiff says that the whole of the fifth paragraph of the defendants' defence is bad in substance.

It is intended to argue on the hearing of the demurrer the following matters of law:

1. Sections 4 and 5 of the Law Reform (Limitation of Actions) Act of 1956, were repealed by the Limitation of Actions Act 1974 (Queensland).

2. Sections 4 and 5 of the Law Reform (Limitation of Actions) Act of 1956, only prescribe a time limit for the commencement of actions in Queensland. Those sections do not limit the time for the commencement of actions outside Queensland and did not limit the time for the commencement of these proceedings which were properly commenced in the High Court of Australia in New South Wales.

The applications were listed for further hearing in Brisbane on 30 October 1981. On 29 October 1981 Mrs. Robinson's solicitors were informed that the Limitation of Actions Act would not be raised in the proceedings. Accordingly, the pleadings were amended by consent so that pars. 5 of the respective defences were struck out and par. 2 of Mrs. Robinson's reply and the demurrer were struck out. The issue as to the Limitation of Actions Act will not be raised if the actions are remitted to a Supreme Court for trial and determination.

In Mr. Robinson's action, an order was sought on 25 June that the proceeding be carried on between Mrs. Robinson as plaintiff and the defendants, but that application was adjourned and came on for further hearing on 30 October. A copy of the grant of probate of Mr. Robinson's will by the Supreme Court of New South Wales to Mrs. Robinson was produced. Application pursuant to O. 18 was renewed that Norma Isabelle Robinson as executrix of the will of Mervyn Harold Robinson be a party to the action to carry it on between herself and the defendants. The application was consented to and the order made.

No doubt Mr. Robinson's cause of action survives for the benefit of his estate, either by virtue of s. 15D of the Common Law Practice Act 1867-1978 Q. or by virtue of s. 2 of the Law Reform (Miscellaneous Provisions) Act 1944 N.S.W.. Neither of these provisions is merely procedural; there is no similarity between the effect which they have in continuing an obligation which otherwise would lapse and the effect of a statute of limitations which merely affects the remedy of enforcing an obligation by action. The reasons which led this Court to hold in Pedersen v. Young [2] that the Queensland statute of limitations does not apply to actions commenced in this Court have no relevance to a statute effecting the survival of a cause of action in proceedings pending in this Court.

The provisions referred to form part of the general body of the law of Queensland and New South Wales respectively relating to civil liability for wrongs: Koop v. Bebb [3] ; Anderson v. Eric Anderson Radio and T.V. Pty. Ltd. [4] . Where a cause of action is enforceable in the courts of a State for the benefit of a deceased's estate, the measure of damages to which the estate is entitled is determined by the statute in force in that State. The courts of the respective States are constrained to apply the respective laws of those States, and the measure of damages which may be recovered in respect of the same tort may vary according to the law of the forum. As the Queensland and New South Wales statutes prescribe different measures of damages, the damages which may be recovered for the benefit of a deceased's estate are affected by the forum in which the action is brought.

1. (1951) 84 C.L.R. 629, at pp. 640-641. 2. (1965) 114 C.L.R. 20, at p. 32.

The choice of forum depends upon the amenability of the defendant to the command of the writ (Laurie v. Carroll [5] ). A writ of summons issued out of or requiring the defendant to appear at any court of record of a State or part of the Commonwealth may be served on the defendant in any other State or part of the Commonwealth (Service and Execution of Process Act 1901-1974 Cth, s. 4 (1)), and if an appearance is not entered after service, liberty to proceed against the defendant may be ordered where the action is brought for the recovery of damages for a tort committed within that State or part of the Commonwealth (s. 11 (1) (d) of the Service and Execution of Process Act). But where an action is brought in a court of a State or other part of the Commonwealth for the recovery of damages for a tort committed elsewhere, the jurisdiction of that court ordinarily depends upon service of the defendant within the territorial jurisdiction of that court or upon the defendant's voluntary submission to the jurisdiction of that court.

Where a plaintiff is entitled to choose as the forum a court exercising federal jurisdiction, and the defendant is within Australia, he is amenable to the command of the federal writ in whatever part of Australia he is served. The body of law to be applied, however, is the law of the place in which the court exercises its jurisdiction (Judiciary Act 1903 Cth, s. 79). The body of general law which binds such a court speaks, as it were, with a variety of tongues, and a federal court when it chooses its venue determines the tongue to which it will listen. 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: cf. Weber v. Aidone [6] and Guzowski v. Cook [7] .

It would not be appropriate to allow the difference in benefits to the plaintiff conferred by two systems of law to affect the exercise of the discretion, which 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.

It follows that if these actions are to be heard and determined by the same court - and it is manifest that they should be - prima facie they ought to be determined according to Queensland law and therefore by a Queensland Court.

The plaintiff seeks remittal to the Supreme Court of New South Wales, however, submitting that Sydney would be the more convenient venue for trial than Brisbane. 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.

Apart from a time in the Redcliffe Hospital immediately after the accident, Mrs. Robinson was treated for her injuries in New South Wales. It is not suggested that any evidence other than the hospital records will be required from the Redcliffe Hospital at the trial, and the medical evidence as to her condition will come principally from three doctors who have either treated or examined her in Sydney. It cannot be said at this stage whether any or all of them will be necessary witnesses. There has not been any exchange of reports and the defendants have not thus far arranged for any medical examination of the plaintiff. However, it is likely that the plaintiff and some medical witnesses who are residents of Sydney will be called. The plaintiff is the only Sydney witness on the issue of liability.

It does not appear that there are any independent witnesses to the accident available to give evidence, but it is likely that a Queensland police officer who investigated the accident will be called. He and the first defendant will be witnesses on the issue of liability. It is said by the defendant, but denied by the plaintiff, that an inspection will be necessary. If an inspection should prove to be necessary, the Supreme Court of Queensland would be clearly the more convenient forum. There may be some dispute as to the state of the intersection at present in comparison with what it was at the time of the accident, and evidence of that kind will have to be called from Queensland sources if it should be material.

Convenience in the marshalling of the known witnesses favours a Sydney venue, but there is a possibility that evidence as to the state of the intersection at the time of the accident will have to be called, and a possibility that an inspection of the intersection will be required. It would be unwise to remit the action to the Supreme Court of New South Wales rather than to the Supreme Court of Queensland, for the balance of convenience in marshalling known witnesses does not outweigh the appreciable risk of grave inconvenience if those possibilities should occur.

The circumstances do not reveal any sufficient ground for departing from the choice of the Supreme Court of Queensland as the court to which the matter ought prima facie to be remitted.

There were three questions raised on the hearing of the application for remittal: the effect of the Limitation of Actions Act, the effect of the statutes relating to survival of the cause of action sued on in Mr. Robinson's action, and the balance of convenience. The first question was the principal question discussed on the first day of the hearing, and notice of intention to withdraw that issue was given only on the eve of the second day of hearing. The plaintiff must be taken to have succeeded on the first question, and to have failed on the others. Refusal of costs to both parties is an appropriate order.

I order that both actions be remitted to the Supreme Court of Queensland. There will be no order as to the costs of the application for remittal, the delivery of a reply and demurrer in Mrs. Robinson's action, or the striking out of parts of the pleadings delivered.