Anderson v Eric Anderson Radio & TV Pty Ltd

[1965] HCA 61

HIGH COURT OF AUSTRALIA

Barwick C.J., Kitto, Taylor, Menzies and Windeyer JJ.

ANDERSON v. ERIC ANDERSON RADIO &T.V. PTY. LTD.

(1965) 114 CLR 20

1 December 1965

Private International Law

Private International Law—Choice of law—Negligent act committed in Territory—Action brought in court of State—Contributory negligence complete bar under State law—Law of Territory providing for apportionment of responsibility—State law applicable to determine rights of parties—Whether negligent conduct accompanied by contributory negligence actionable in State—Whether exercise of federal jurisdiction involved—The Constitution (63 &64 Vict. c. 12), s. 118—State and Territorial Laws and Records Recognition Act 1901-1964 (Cth), s. 18—Law Reform (Miscellaneous Provisions) Ordinance 1955 (A.C.T.), s. 15.

Decisions

December 1.
The following written judgments were delivered: -
BARWICK C.J. The appellant sued the respondent in the Metropolitan District Court, Sydney, for damages for personal injuries received in a collision between motor vehicles in a public street in the Australian Capital Territory. (at p22)

2. The action was tried by a judge of the District Court and a jury. The jury answered questions put to them by the trial judge and by such answers in substance found the respondent guilty of negligence, the appellant guilty of contributory negligence and apportioned responsibility for the resultant damage as to ninety per cent to the respondent and ten per cent to the appellant. (at p22)

3. The trial judge held that the substantive law which he was bound to apply was the law of the Australian Capital Territory in which he included s. 15 of the Law Reform (Miscellaneous Provisions) Ordinance 1955 which prevents a claim for damages for the result of negligence being defeated by a finding of contributory negligence and provides for the reduction of the damage suffered by a claimant to such an extent as the assessing tribunal thinks just and equitable having regard to the claimant's share in the responsibility for such damage. (at p23)

4. Consequently, upon the jury's findings, the assessed damages of 2,430 pounds were reduced to 2,187 pounds for which sum judgment was entered for the appellant. (at p23)

5. The respondent appealed to the Supreme Court of New South Wales against the judgment entered for the appellant upon the ground that the law which ought to have been applied was that of New South Wales where failure of a plaintiff to take due care for his own safety constitutes a good defence to an action for damages resulting from negligence. The Supreme Court accepted this submission, set aside the judgment of the District Court and entered a verdict for the respondent in the action. (at p23)

6. No doubt in the exercise of its jurisdiction under the District Courts Act, 1912-1961 of the State of New South Wales, the District Court had jurisdiction within its territorial and financial limits to hear and determine an action for damages resulting from an act or omission complained of as wrongful which if done there would have been actionalbe in that State and which was not justifiable by the law of the place where it was committed: see Phillips v. Eyre (1870) LR 6 QB 1 . That the place where the wrongful act or omission was committed was another State of the Commonwealth did not alter the situation: Koop v. Bebb (1951) 84 CLR 629 ; nor, subject to consideration of the matters to which I shall later turn, can it matter that that act or omission occurred in the Australian Capital Territory. The principles to be applied will in each case be the same, even if it is necessary that the act complained of be actionable as distinct from merely being not justifiable in the place where it was committed, a matter which was discussed in Koop v. Bebb (1951) 84 CLR 629, at pp 642-644 . (at p23)

7. A negligent act causing damage is not only not justifiable but actionable in the Australian Capital Territory. Further, a negligent act, though damages for its consequences may in the result be denied because of the plaintiff's lack of care for his own safety, remains an actionable wrong, cf. Curran v. Young (1965) 112 CLR 99 . Therefore, applying the law of New South Wales in an action for damages caused by a wrongful act committed outside New South Wales, the District Court judge upon the finding of lack of care on the part of the appellant for his own safety, ought to have entered a verdict for the respondent. (at p23)

8. However, the learned trial judge, as I have said, thought that he ought to apply the provisions of s. 15 of the Law Reform (Miscellaneous Provisions) Ordinance of the Australian Capital Territory as part of the relevant substantive law. But, unless he was exercising invested federal jurisdiction, he was, in my opinion, to apply the law of New South Wales as if the act complained of had been committed there, though in accordance with that law, since the act complained of happened outside New South Wales, he was bound to determine whether that act was or was not "justifiable" in the place where it did happen. To that extent he had to ascertain in the action the law of the Australian Capital Territory (of which he was bound to take judicial notice), not to apply it, but in order to determine as a fact in applying the law of New South Wales to the case in hand what the law of the Australian Capital Territory provided as to whether or not the act there committed was or was not there "justifiable". (at p24)

9. The appellant has argued that the District Court in trying the action was exercising federal jurisdiction because, as it submitted, the right of action to be pursued by the appellant was a right given by a law made by the Parliament. In substance it was submitted that that was a right to recover damages for negligence in any court notwithstanding the claimant's own want of care for his own safety, the provisions of the Ordinance controlling the amount of the damages recoverable in such court. (at p24)

10. There may be several difficulties in the way of acceptance of this far-reaching proposition. But, in my opinion, it lacks a basic foundation. For, in my opinion, s. 15 of the Law Reform (Miscellaneous Provisions) Ordinance clearly applies only to proceedings in the courts of the Australian Capital Territory. The authority given to the Governor-General to make such an Ordinance is to be found in the Seat of Government (Administration) Act 1912 which provides that the Ordinances which the Governor-General makes pursuant to that Act shall have the force of law in the Australian Capital Territory (s. 12). So far as rights of action have been continued or created by legislation passed for the Australian Capital Territory these rights are rights enforceable in the courts of the Australian Capital Territory and clearly, in my opinion, not in any other court by virtue of that legislation. (at p24)

11. The action before the District Court remained, therefore, one for the enforcement of a right given by the law of New South Wales, with the consequences to which I have already adverted. (at p24)

12. The appellant's counsel also submitted that because of s. 118 of the Constitution and s. 18 of the State and Territorial Laws and Records Recognition Act 1901-1964 (Cth), the District Court was bound to give effect to cl. 15 of the Ordinance of the Australian Capital Territory. But I am unable to agree that either of these provisions is relevant to the present matter. There is no failure to give full faith and credit to the Ordinance of the Australian Capital Territory by deciding that they do not apply to the trial of an action in a court of the State of New South Wales for a cause of action given by the laws of that State. (at p25)

13. The appellant in his notice of appeal seeks as an alternative to a restoration of the judgment in the District Court, a new trial of the action on the ground that the trial judge put the case to the jury "on a false basis of law; that if the jury had determined the case without reference to the considerations arising by virtue of the said Ordinance they may not have been satisfied that the appellant was guilty of negligence so appreciable that his action should be defeated". (at p25)

14. It does not appear from the judgments of the Supreme Court that the appellant who was respondent in that Court sought a new trial in the event that the Supreme Court thought that the trial judge had been in error in applying to the case the Ordinance of the Australian Capital Territory. But, Brereton J. observed the possibility when he said: "The finding against the plaintiff, in the light of the summing up, was not a finding of contributory negligence in the sense of a failure to take reasonable care for his own safety; it was a finding of failure to take reasonable care simpliciter, and specifically a failure to keep a proper lookout, amounting to 'a contribution to the totality of the negligence involved in this case'. The two fields are not necessarily coextensive; but I have no doubt that in this case they were" (1964) 82 WN (Pt 2) (NSW), at p 122 . (at p25)

15. In this Court the appellant's counsel made a formal submission that as an ultimate alternative there should be a new trial of the action but no substantial argument was addressed to the Court in support of the formal submission. (at p25)

16. Before the trial judge no criticism was offered of the form in which his Honour posed the relevant question to the jury, namely, "Is the plaintiff guilty of negligence?" (at p25)

17. There is no need in this case to consider whether the issue of a plaintiff's failure to take due care for himself and the issue of contributory negligence in a system which applies the maritime rule of apportionment of responsibility are universally coextensive, for I agree with Brereton J. that in this case they were. (at p25)

18. Lastly, the ground of appeal as expressed is not really apt to raise the point that the considerations appropriate to an issue as to whether or not the appellant took due care for his own safety were not adequately placed before the jury. The suggestion in the ground of appeal that the jury may have taken a different view of the appellant's conduct had they known what legal consequence might flow from their finding of the appellant's negligence, is not an acceptable proposition. I find no ground for a new trial of the action. (at p26)

19. In my opinion the appeal should be dismissed. (at p26)

KITTO J. This is an appeal from an order of the Supreme Court of New South Wales (Full Court) allowing an appeal against a judgment given for the plaintiff in an action in a District Court and ordering that judgment in the action be entered for the defendant. (at p26)

2. The action was for damages for personal injuries which the plaintiff alleged had been caused to him by the negligent driving of a motor vehicle by the defendant's servant or agent upon a public street in the Australian Capital Territory. The trial took place before a judge and jury, the defendant denying the negligence alleged against it and alleging contributory negligence on the part of the plaintiff. The jury answered four questions put to them by the judge, and their answers, understood in the light of the summing-up, meant that the plaintiff's injuries had been caused in part by negligence for which the defendant was responsible and in part by contributory negligence of the plaintiff, that the proper amount of the damages in respect of the plaintiff's injuries was 2,430 pounds, and that having regard to the plaintiff's share in the responsibility for his damage it was just and equitable that his damages should be reduced by ten per cent. Apparently no express verdict was taken, but the parties have accepted the position as being in effect that a verdict for the plaintiff for 2,187 pounds was returned upon a direction by the judge to the effect that the answers given to the questions entitled the plaintiff to that verdict in view of the provision made for such a case by s. 15 of the Law Reform (Miscellaneous Provisions) Ordinance 1955 of the Australian Capital Territory. The provision is that where a person suffers damage as the result partly of his own fault and partly of the fault of another person, a claim in respect of that damage is not liable to be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect of the damage shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage. (at p27)

3. The municipal law of New South Wales makes no similar provision. The rule of the common law remains in force, that in an action of negligence contributory negligence on the part of the plaintiff is a complete defence. Accordingly, if it had been in New South Wales that the plaintiff in this case sustained the injuries of which he complained in the action the jury's answers would have necessitated a verdict and judgment for the defendant. The trial judge based his charge to the jury upon the view that by reason of the rules of private international law in force in New South Wales the substantive law governing the liability of the defendant in the circumstances of the case was the law of the Australian Capital Territory as the lex loci actus, and that the issue of liability had therefore to be determined in accordance with s. 15 of the Ordinance. On appeal, the Supreme Court held, having regard to the finding of contributory negligence, that the wrong of which the plaintiff complained would not have been actionable in New South Wales if the defendant's negligent act had been done there, and that therefore, according to the rule of private international law laid down in Phillips v. Eyre (1870) LR 6 QB 1 and accepted by this Court in Musgrave v. The Commonwealth (1937) 57 CLR 514, at pp 532, 543 and Koop v. Bebb (1951) 84 CLR 629 , the action should have failed unless certain submissions should be upheld which had not been passed upon by the Court in Koop v. Bebb (1951) 84 CLR 629 . These new submissions were rejected by a majority of the Supreme Court, and an order was accordingly made that judgment be entered for the defendant. The plaintiff appeals. (at p27)

4. Leaving aside for the moment what I have called the new submissions, it seems to me that in this case we ought to apply the principle enunciated by Willes J. in Phillips v. Eyre (1870) LR 6 QB 1 , and that the learned judges of the Supreme Court were right in holding that it entitled the defendant to succeed. The principle as it operates in New South Wales may be expressed by saying that where in a court of the State a claim is made for damages for a tort alleged to have been committed elsewhere, e.g. in the Australian Capital Territory, two conditions must be satisfied before the claimant can succeed, namely that the conduct complained of was of such a character that it would have been actionable if it had occurred in New South Wales, and that the conduct was not justifiable by the law of the other country. In the present case we are concerned with the first condition. As was mentioned in Koop v. Bebb (1951) 84 CLR 629, at pp 643, 644 , in the United States it is not a condition which is recognized as valid: see also Western Union Telegraph Co. v. Brown (1914) 234 US 542 (58 Law Ed 1457) and cf. The Titanic (1914) 233 US 718, at p 732 (58 Law Ed 1171, at p 1180) , Corpus Juris Secundum, vol. 15, art. 12, pp. 896 et seq., vol. 65, art. 177, pp. 856, 857; and its persistence in English law has been cogently critized by text-writers. The whole subject may perhaps need to be re-examined some day, but we would not be justified in calling into question a doctrine upon which the courts both in England and in this country have acted for almost a century unless, at least, in a case in which it has been directly challenged and made the subject of full argument. In this appeal the correctness of the doctrine in English law has not been questioned, and I think we must proceed on the basis that it is sound here unless considerations peculiar to this country displace it. The application of it in the present case involves the following steps. The wrong complained of consisted of negligent conduct of the defendant which, combining with a lack of due care by the plaintiff for his own safety, caused damage to the plaintiff. Such conduct of the defendant, if it had occurred in New South Wales, would not have constituted an actionalbe wrong in that State, for the law of the State knows no action for breach of a duty of care save one for damage which results from the breach without being contributed to by a lack of reasonable care on the part of the party who has sustained the damage: see the definition of actionable negligence formulated by Brett M.R. in Heaven v. Pender (1883) 11 QBD 503, at p 507 . As Lord Ellenborough said in Butterfield v. Forrester (1809) 11 East 60, at p 61 (103 ER 926, at p 927) , the two things must concur: negligent conduct on the part of the defendant, and "no want of ordinary care to avoid (its consequences) on the part of the plaintiff". The reason is that breach of a duty of care is not actionable unless it is a cause of injury to a person to whom the duty was owed, and a plaintiff's contributory negligence is considered to make the defendant's negligence not relevantly operative as a cause of the damage to which they both contributed. It is because this is the nature of actionable negligence that at common law contributory negligence might be set up under a plea of the general issue: where there is contributory negligence there is no actionable wrong - no wrong for which judgment in an action may be recovered; though, as I have recognized in Curran v. Young (1965) 112 CLR 99, at p 105 there is a wrongful act, one that is "tortious" in the sense of being legally unjustifiable because done in breach of a legal duty. The change which s. 15 of the Ordinance has effected in the Australian Capital Territory is, therefore, to make actionable in the Territory a wrong which would not have been actionable in New South Wales if the relevant events had happened there. (at p29)

5. The result, in my opinion, is that in an action of negligence in New South Wales arising out of an occurrence in the Territory contributory negligence by the plaintiff may be relied upon by the defendant to defeat a proposition which is necessary for the plaintiff's success according to the doctrine of Phillips v. Eyre (1870) LR 6 QB 1 , namely that the wrong complained of would have been actionable if it had happened in New South Wales. (at p29)

6. On the assumption that some such view would be taken, the appellant's argument in the appeal was directed to showing that even if the doctrine of Phillips v. Eyre (1870) LR 6 QB 1 is correct in England it has no application in Australia in a case like the present, Koop v. Bebb (1951) 84 CLR 629 notwithstanding. The steps in the argument, if I followed it correctly, were these. (i) A claim for damages in New South Wales in respect of an act of negligence committed in the Australian Capital Territory is a claim for breach of a duty of care existing by the combined operation of s. 6 of the Seat of Government Acceptance Act 1909-1955 (Cth) (giving statutory force in the Territory to the common law as to negligence) and s. 12 of the Seat of Government (Administration) Act 1910-1963 (Cth) (giving the force of law in the Territory to s. 15 of the Law Reform (Miscellaneous Provisions) Ordinance 1955). (ii) The claim is therefore a matter arising under laws made by the Parliament of the Commonwealth ; and consequently is a matter in which original jurisdiction can be conferred on the High Court under s. 76 (ii.) of the Constitution. (iii) In virtue of this fact it is a matter in which, by s. 39 (2) of the Judiciary Act 1903-1959 (Cth), federal jurisdiction is conferred on the several courts of the States within the limits of their several jurisdictions. (iv) Where such a claim is to be adjudicated upon in exercise of federal jurisdiction, the laws enacted or promulgated for the government of the Territory are to be applied, whatever the court and wherever it sits, exactly as they would be applied by a court of the Territory sitting in the Territory itself. (at p29)

7. The first three steps may be accepted for present purposes without discussion. Before going on to consider the grounds upon which the appellant seeks to support the fourth step, one may fairly pause to point out what a remarkable conclusion is reached. It means that at least in respect of claims for damages for personal injury caused by negligence in the Territory the rules of private international law that have been evolved for the choice of law in a case where the forum is in a different State or Territory from that in which the act complained of occurred have no application in any court exercising federal jurisdiction : the law to be applied by such a court is always the law of the place where the act occurred. In this, indeed, was said to lie the virtue of the conclusion ; for it discovers a new context in which Australia may be said to have become one country and its people one people, and in consequence makes irrelevant such problems as those associated with the cases of The Halley (1868) LR 2 PC 193 and Phillips v. Eyre (1870) LR 6 QB 1 . No endeavour was made to support by any line of reasoning the selection of the lex loci actus as the law to be applied ; it was simply described as the obvious choice. What law should be selected in cases of other kinds, cases of contract for example, was a question which the argument did not attempt to answer, and no underlying principle from which the answer might be derived was propounded. (at p30)

8. The grounds relied upon for the fourth and final step in the argument seemed to some extent to run into one another. In the first instance reliance appeared to be placed upon the essential nature of federal jurisdiction ; but this certainly will not do by itself, for all that is meant by saying that a court has federal jurisdiction in a particular matter is that the court's authority to adjudicate upon the matter is a part of the judicial power of the federation. To confer federal jurisdiction in a class of matters upon a State court is therefore not, if no more be added, to change the law which the court is to enforce in adjudicating upon such matters ; it is merely to provide a different basis of authority to enforce the same law. The concept of federal jurisdiction does not imply the existence of a single body of law in force throughout the Commonwealth. The claim, that "matter" which the action brings before the State court, is necessarily a claim to enforce a right of action alleged to exist in the State. So here, whether the matter be considered as a claim to enforce an obligation which springs from the law of the Australian Capital Territory (as the first step in the appellant's argument asserts, with Phillips v. Eyre (1870) LR 6 QB 1 to support it) or a claim to enforce an obligation created by the law of New South Wales in respect of something done in the Australian Capital Territory (as was said in The Halley (1868) LR 2 PC 193, at p 203 and in Koop v. Bebb (1951) 84 CLR 629, at p 644 ), it is a claim to recover damages in accordance with the law of New South Wales. (at p31)

9. The argument proceeds, however, to point out that to a grant of federal jurisdiction to a State court certain consequences are attached by statute. A consequence of general importance is that by virtue of s. 73 (ii.) of the Constitution an appeal may be taken directly to the High Court. But the consequence which is seized upon by the appellant's argument here is that the provisions of ss. 79 and 80 of the Judiciary Act must be given effect, so far as material, in the ascertainment of the law to be applied in deciding the case. By s. 79 the laws of each State are made binding on all courts exercising federal jurisdiction in that State in all cases to which they are applicable, except as otherwise provided by the Constitution or the laws of the Commonwealth ; and by s. 80, so far as the laws of the Commonwealth are not applicable or are insufficient, the common law of England as modified by the Constitution and by the statute law in force in the State in which the court is held is to govern all courts exercising federal jurisdiction so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth. To give effect to these provisions in the present case (the argument proceeds) it is necessary to turn to those laws of New South Wales which are found in covering cl. 5 in the Commonwealth of Australia Constitution Act, to s. 118 of the Constitution itself, and to s. 18 of the State and Territorial Laws and Records Recognition Act 1909-1964 (Cth), and the effect of those laws is that a court exercising federal jurisdiction in New South Wales is required to treat as part of the law of the State the provisions of s. 15 of the Law Reform (Miscellaneous Provisions) Ordinance of the Territory. Covering cl. 5 makes binding on the courts, judges and people of every State all laws made by the Parliament of the Commonwealth under the Constitution. It is said that s. 12 of the Seat of Government (Administration) Act 1910-1963 (Cth) is such a law, and that therefore all courts are bound by its provisions to hold that s. 15 of the Ordinance has the force of law in New South Wales in relation to events occurring in the Territory. We may put aside s. 118 of the Constitution, for its requirement that full faith and credit be given throughout the Commonwealth to inter alia the laws and the public Acts of every State has no application to the laws and public Acts of a Territory. Section 18 of the State and Territorial Laws and Records Recognition Act, however, requires that inter alia all "public acts" of any Territory shall have such faith and credit given to them in every court as they have by law in the courts of the Territory from whence they are taken. The appellant reads "public acts" as wide enough to include an Ordinance of a Territory, and for the purposes of this appeal this may be assumed. It is said that this provision produces a result similar to that which the argument attributes to covering cl. 5. (at p32)

10. It is not clear to me why these laws should have more force by virtue of the Judiciary Act than they have without it ; and accordingly it is not clear to me why the argument needs to begin by asserting that the District Court in the present case was exercising federal jurisdiction. But I put this aside. Let it be assumed that by reason of the provisions mentioned a court exercising federal jurisdiction in New South Wales in respect of a matter arising out of events which have occurred in the Capital Territory is required to treat as part of the law of New South Wales, and therefore to apply to the case in obedience to ss. 79 and 80 of the Judiciary Act, the provisions of s. 15 of the Ordinance of the Territory. It is the next step that is crucial. The argument recognizes that s. 15, being expressed in general terms, must be subject to an unexpressed limitation sufficient to keep it within the limits of the legislative power upon which it ultimately depends for its validity, namely the power of the Parliament under s. 122 of the Constitution to make laws for the government of the Territory. But it regards the section as sufficiently limited by reading into it an implication that it applies only where the "fault" of the party in the position of defendant occurs in the Territory ; and on this footing it maintains that when carried over in the manner that has been described into the law of New South Wales it gives a cause of action there for personal injury by negligence in the Territory even though the case be one of contributory negligence, so that there is neither need nor justification for invoking the rules of private international law, and Phillips v. Eyre (1870) LR 6 QB 1 is accordingly irrelevant. (at p32)

11. The answer, in my opinion, is that the true limitation which is inherent in s. 15 is to be expressed by saying that it enacts without verbal qualification a rule to form part of the general body of the law of the Territory relating to civil liability for wrongs : cf. Koop v. Bebb (1951) 84 CLR 629, at pp 640, 641 . If its application is confined to events happening in the Territory, that is merely a consequence. The respondent's counter-suggestion that it applies only to cases arising for adjudication in the courts of the Territory must likewise derive any strength it may have, not from an implication of restrictive words, but from the essential character of the provision as an enactment for the government of the Territory. This is fatal to the appellant's argument. If it be true that the section is to be treated by a New South Wales court, and in particular by such a court when exercising federal jurisdiction, as if it were transplanted into the law of New South Wales, it must stand in that law with the same meaning as it has in the Territory ; and to say that in New South Wales there is in force a provision the true meaning of which is that the law of torts in the Territory is to contain a particular rule is to make a statement which gets the appellant nowhere. There is no escape from this, it seems to me, that whatever may constitute giving faith and credit to the laws of the Territory, it is faith and credit to those laws as they stand, not as notionally altered ; and a requirement that a New South Wales court shall treat s. 15 of the Ordinance as binding upon it can mean no more than that the Court shall look to s. 15 as it stands whenever a necessity arises to know what is the law of the Territory for the class of cases with which it deals. (at p33)

12. In my opinion the statutory provisions relied upon by the appellant leave the case one in which his right to maintain the action depends upon the rules of private international law in force in New South Wales. (at p33)

13. The appeal therefore fails and should be dismissed. (at p33)

TAYLOR J. In August 1962 the appellant instituted an action in the District Court of the Metropolitan District claiming damages in respect of personal injuries which he alleged he had received as the result of the negligence of the respondent's servant. The negligence of which he complained related to the control and management of a motor vehicle of the respondent and the place where this is alleged to have occurred was upon a public street in the Australian Capital Territory. Presumably the respondent was a company which carried on business within the Metropolitan District so that pursuant to ss. 7 and 41 of the District Courts Act, 1912-1961 the Metropolitan District Court had, quite apart from any other source of authority, jurisdiction to entertain the matter. I have said "apart from any other source of authority" because it is in the forefront of the appellant's argument that the hearing and determination of the matter took place in the exercise by the District Court of federal jurisdiction conferred upon it by s. 39 (2) of the Judiciary Act 1903-1959. (at p33)

2. The problem in the case arose because under the law of New South Wales contributory negligence on the part of a plaintiff in such an action constitutes a complete bar to his claim. In the Australian Capital Territory, however, it does not, for by cl. 15 of the Law Reform (Miscellaneous Provisions) Ordinance 1955 it is provided that : "where a person suffers damage as the result partly of his own fault and partly of the fault of another person or other persons, a claim in respect of that damage is not liable to be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect of the damage shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". In view of the findings of the jury this difference became of importance for in answer to specific questions submitted to them by the learned trial judge they found that the respondent was guilty of negligence, they assessed damages at the sum of 2,430 pounds, they found also that the appellant was guilty of negligence - which in view of his Honour's summing-up must mean contributory negligence - and they found that the appellant's damages should be reduced by ten per cent. His Honour had held during the course of the trial "that the substantive law which governs the civil liability of the defendant must be the lex loci actus", and, since that law was the law of the Australian Capital Territory, that he was bound to apply the provisions of cl. 15 of the Ordinance in question. Accordingly he entered judgment for the appellant for 2,187 pounds. Subsequently on appeal to the Supreme Court this judgment was, by majority, set aside and judgment was entered for the respondent. This appeal is now brought to this Court from the order of the Supreme Court. (at p34)

3. The decision in Koop v. Bebb (1951) 84 CLR 629 quite plainly establishes that an action of tort will lie in one State of the Commonwealth for a wrong committed elsewhere if two conditions are satisfied : (i) the wrong must be of such a character that it would have been actionable if it had been committed in the State in which the action is brought and (ii) it must not have been justifiable by the law of the place where it was done. The question whether it should appear that the wrong was such as to give rise to a civil liability by the law of the place where it was committed was discussed in the case but it was unnecessary to express a final opinion on this matter. Likewise it is unnecessary to pursue this matter any further in the present case for the wrong alleged was of such a character that it would have been actionable if it had been committed in New South Wales and it was also actionable in the Australian Capital Territory. But normally an action brought in New South Wales to recover damages for negligence, whether this occurs within or outside the State, will, as the law of the State stands at present, be defeated by proof of contributory negligence on the part of the plaintiff (The Halley (1868) LR 2 PC 193 ). (at p35)

4. The appellant, however, contends that these principles have no application in the circumstances of the present case. As I understand it the argument is based primarily upon the assertion that the District Court was exercising federal jurisdiction in entertaining the appellant's action and that, therefore, these principles do not apply. I confess to considerable difficulty in seeing that even if this were so the appellant would be entitled to succeed but I shall return to this aspect of the case at a later stage. The contention that the District Court was exercising federal jurisdiction proceeds from the proposition that the appellant's initial right of action was the creature of a law made by the Parliament of the Commonwealth, that his claim for damages, therefore, answered the description of a matter "arising under any laws made by the Parliament" (The Constitution, s. 76 (ii.)) and that the effect of s. 39 (2) of the Judiciary Act was to invest the District Court of the Metropolitan District with jurisdiction in that matter. The plaintiff's right was said to arise under the Seat of Government Acceptance Act 1909-1938, s. 6 (1) of which provided that subject to that Act, all laws in force in the Territory immediately before the proclaimed day should, so far as applicable, continue in force until other provision was made. The operation of this section was not relevantly affected by s. 3 of the Seat of Government (Administration) Act 1910-1947 and it is contended that it was by virtue of the earlier provision, as modified by cl. 15 of the Ordinance, that the appellant's claim was actionable in the Australian Capital Territory. The effect of s. 6 (1) of the Seat of Government Acceptance Act was to continue in force in the Territory all laws which were in force there before 1st January 1911 and it is necessary to determine with some degree of precision what the previous relevant law was. It was, in substance, a law which vested in a person injured by the negligence of another a right to recover damages unless it was proved that he had been guilty of contributory negligence. But this right was one which immediately prior to 1st January 1911 could be enforced only in the courts of New South Wales. The courts of New South Wales, however, in 1911, ceased to have the jurisdiction which they had formerly exercised in relation to the territory which had become the Australian Capital Territory and, after 1st January 1911, they exercised jurisdiction there only to the extent provided by the laws of the Territory. As far as the jurisdiction formerly exercised by the Supreme Court of New South Wales was concerned, s. 8 of the Seat of Government Acceptance Act 1909 provided that until the Parliament should otherwise provide, the High Court and the Justices thereof should have, within the Territory, the jurisdiction which immediately before 1st January 1911 belonged to the Supreme Court of the State and the Justices thereof. Further provision was made by s. 30B of the Judiciary Act 1927 which enacted that the High Court should have, in relation to the Territory for the Seat of Government, the same original jurisdiction, both civil and criminal, as immediately before 1st January 1911 the Supreme Court of the State of New South Wales had in relation to that State. This section was repealed in 1933 by the Seat of Government Supreme Court Act. This Act created the Supreme Court of the Australian Capital Territory and vested in it the same original jurisdiction, both civil and criminal, as immediately before 1st January 1911, the Supreme Court of the State of New South Wales had in relation to that State. As for inferior courts provision was made by s. 11 of the Seat of Government (Administration) Act 1910 for the exercise of jurisdiction by the courts of the State subject to any Ordinance made by the Governor-General and in 1940 the Court of Petty Sessions Ordinance, which made provision for the establishment of Courts of Petty Sessions within the Territory, provided that the jurisdiction, conferred by s. 11 of the Seat of Government (Administration) Act on the several inferior courts of the State of New South Wales, should, by force of the Ordinance, be determined. (at p36)

5. It thus appears that at all stages the right which was given by the law of the Territory to a person injured by the negligence of another was a right to recover damages in a court exercising jurisdiction pursuant to the laws of the Territory and not a right which was enforceable in any other way. Then came s. 15 of the Law Reform (Miscellaneous Provisions) Ordinance 1955 which made the provision previously referred to. First of all, it abolished the defence of contributory negligence in personal injury claims. Then it provided that in cases where a plaintiff's injuries are the result partly of his own fault and partly of the fault of another person damages recoverable shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damages. (at p36)

6. In these circumstances there are two observations which may be made concerning the appellant's contention that the District Court was exercising federal jurisdiction. The first is that the right which is given to a plaintiff by the law of the Territory to recover damages notwithstanding that he has contributed to his own injuries is a right given by the Ordinance and it may be open to question whether it can be said that an action to enforce such a right involves a matter "arising under any laws made by Parliament". The second is that the plaintiff did not sue to enforce that right; he sued to enforce a right given to him by the law of New South Wales. True it is that no right of action existed according to the law of that State unless, inter alia, the conduct of the defendant was not justifiable according to the law of the Territory but the circumstance that this enquiry was necessary was not, in my view, sufficient to enable the action to be characterized as one which involved a "matter" arising under a law made by Parliament. (at p37)

7. But even if it could be said that the action involved such a matter I fail to see how it could affect the plaintiff's rights. The right which was given by the law of the Territory was a right enforceable only in the courts of the Territory and not elsewhere. The Ordinance in question was promulgated under s. 12 of the Seat of Government (Administration) Act and that section provides that the Governor-General may make Ordinances having the force of law in the Territory. Abolition of the defence of contributory negligence by force of its provisions was, therefore, effective only in relation to proceedings brought in the courts of the Territory and the substituted provision that, in cases where a plaintiff's injuries are the result partly of his own fault and partly of the fault of another the damages recoverable shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for damages, applies only to proceedings in those courts. This being the substance of the law of the Territory, there is no basis for the view that the Ordinance had any application to proceedings in the District Court. Accordingly the appellant's main contention must, I think, fail. (at p37)

8. A further argument by the appellant based upon s. 118 of the Constitution and s. 18 of the State and Territorial Laws and Records Recognition Act 1901-1964 may be noted. But it is sufficient to say that there is nothing in those provisions to support the contention that it was proper for the appellant's title to relief in his action in the District Court to be determined by reference to the laws operating in the Australian Capital Territory and not by reference to the law of New South Wales. (at p37)

9. In my opinion the appeal should be dismissed. (at p37)

MENZIES J. In his argument, counsel for the appellant raised a number of points of some constitutional interest and importance but, in the view which I take, they do not have to be decided to determine this appeal. If I say little about them it is because, in general, I regard it as unwise to expound the Constitution by obiter dicta, notwithstanding some notable exceptional cases in which this has been done. (at p38)

2. The appellant sued the respondent in a District Court in New South Wales for damages for negligence. A motor car driven by the appellant had collided with a motor car driven by the respondent upon a roadway in the Australian Capital Territory and the appellant had suffered injuries. The jury found that the collision was caused by the negligence of both drivers and that, by reason of the negligence of the appellant, it was just and equitable to reduce his damages by ten per cent. If the law of the Australian Capital Territory - that is, the Law Reform (Miscellaneous Provisions) Ordinance 1955, s. 15 - were the law applicable, the judgment upon such findings would be judgment for the plaintiff for 2,187 pounds damages, for the Ordinance makes contributory negligence a ground for apportioning damages instead of a defence to an action for damages for negligence. The learned judge gave judgment for this amount. Upon appeal, the Full Court by a majority decided that, upon the jury's findings, judgment should have been entered for the defendant because, by the law of New South Wales which the majority held the learned District Court judge was bound to apply, contributory negligence is a defence to an action for negligence and not merely a ground for apportioning damages. (at p38)

3. The starting point of the argument on behalf of the appellant was that at some stage of the hearing a matter involving the interpretation of the Constitution, or arising under a law made by the Parliament of the Commonwealth, arose so that the District Court was called upon to exercise federal jurisdiction (Commonwealth Constitution, s. 76 (i.) and (ii.) and the Judiciary Act, s. 39). Even if this were so, it would not have been a necessary consequence that the law of New South Wales, which makes contributory negligence a defence to an action for negligence, thereupon ceased to have any application and was displaced by the Ordinance. In the absence of some Commonwealth law making the Ordinance applicable in proceedings in the courts of New South Wales exercising federal jurisdiction in place of the law of New South Wales, its only importance as part of the law of the Australian Capital Territory was that because the accident happened in the Australian Capital Territory, it was necessary for the plaintiff to show that what was actionable in New South Wales was not justified by the law of the Australian Capital Territory: Koop v. Bebb (1951) 84 CLR 629 . To succeed, the appellant must establish that the lex fori was altogether displaced so that the defence which it provided was no longer available to the respondent. Section 79 of the Judiciary Act was relied upon to effect this displacement. It is in these terms: "The laws of each State, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State in all cases to which they are applicable." (at p39)

4. The argument was that if the District Court was exercising federal jurisdiction so that s. 79 applied, the law to be applied in determining the appellant's rights was the law of the Australian Capital Territory, not the law of the State. To this I would make a short answer - viz. there is nothing in Commonwealth law providing that the law of the State of New South Wales relating to contributory negligence is not applicable in a case being tried by a New South Wales court exercising federal jurisdiction, and there is nothing in Commonwealth law making the law of the Australian Capital Territory relating to contributory negligence applicable in such a case. The only law relied upon as a law of the Commonwealth providing "otherwise" for the purposes of s. 79 and so displacing the law of the State was the Ordinance itself but, when regard is had not only to the terms of the Ordinance but also to the statutory authority for the Ordinance - the Seat of Government (Administration) Act, s. 12 - it is apparent that the Ordinance cannot be regarded as such a law. Section 12 of that Act authorizes the Governor-General to make ordinances "having the force of law in the Territory". An ordinance so made cannot be regarded as a law requiring a court exercising federal jurisdiction in New South Wales to disregard a law of the State and apply instead a law of the Australian Capital Territory. (at p39)

5. In dealing with the case, I have assumed that the District Court was a court exercising federal jurisdiction but I feel obliged to reject expressly one of the arguments whereby it was sought to establish that this was so. There was not in the proceeding any matter arising under s. 118 of the Constitution, or involving its interpretation, nor was the interpretation of s. 118 involved in construing s. 18 of the State and Territorial Laws and Records Recognition Act. I refrain, therefore, from considering the arguments addressed to us relating to that section of the Constitution. (at p40)

6. In my opinion this appeal should be dismissed. (at p40)

WINDEYER J. The respondent, a company resident and carrying on business in New South Wales, was, according to the law of New South Wales, a person liable to be sued in the District Court in Sydney. That Court, in which the appellant brought his action, was thus a proper forum, if, having regard to the rules of private international law applicable, the case is one that a New South Wales court could properly entertain. The rules applicable are derived from the well-known statement of Willes J. in Phillips v. Eyre (1870) LR 6 QB 1, at p 28 , concerning the jurisdiction of English courts in cases concerning foreign torts. These rules have been held to be applicable in Australia in a conflict between the laws of two States. And, subject to any overriding valid federal law, they are equally applicable when there is a conflict between the laws of a State and of a Territory. "As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England . . . . Secondly, the act must not have been justifiable by the law of the place where it was done" (1870) LR 6 QB, at pp 28, 29 . This passage has been the subject of much discussion and criticism by textbook writers. It is the second branch, expressed by the phrase "not justifiable", that has come in for most comment. The word "justifiable" there may be an echo of Lord Mansfield's statement in Mostyn v. Fabrigas (1774) 1 Cowp 161, at p 175 (98 ER 1021, at p 1029) , that "whatever is a justification in the place where the thing is done, ought to be a justification where the cause is tried" - a statement that is far from supporting the meaning given the word "justifiable" in Machado v. Fontes (1897) 2 QB 231 . And this Court said in Koop v. Bebb (1951) 84 CLR 629, at p 643 that it seems clear that the last word has not been said on the subject of that decision. Certainly it has not been said by academic authors whose comments are vigorous if not unanimous. But these difficulties need not concern us in this case. The conduct of the respondent, on which the action was founded, was not justifiable in the Australian Capital Territory, where it occurred. It was wrongful there. The matter important in this case is thus the first condition, expressed to be that the tort sued upon is of such a character that it would have been actionable if committed in New South Wales. (at p40)

2. This Court said in Koop v. Bebb (1951) 84 CLR 629 : "At least the first condition is free from ambiguity" (1951) 84 CLR, at p 642 . That perhaps was too hopeful an opinion, for Professor Hancock, in his work on Torts in the Conflict of Laws, found this part of the statement of Willes J. "not transparantly clear" ; and, as I shall mention later, other writers, although not doubting its meaning, have questioned its effect. I take it to mean that the acts that a plaintiff alleges were done must be such that had they been done in the country of the forum, here New South Wales, they would have given him a good cause of action there against the defendant according to the lex fori, here the municipal law of New South Wales. That a plaintiff has a good cause of action in this sense does not mean that no matter exists that would answer or defeat it. That, I take it, is one reason why some text writers prefer the word "triable" or, as in the third edition of Halsbury (vol. 7, p. 84), "justiciable", to "actionable" in this context. The significance of this will become apparent later in relation to contributory negligence. (at p41)

3. But when the two conditions are fulfilled - when the act is wrongful by the law of the forum and in the place where it occurred - what then? The case is one that the court will entertain, but by what law is it to judge it? Is it to deal with it as if everything that in fact happened outside the country of the forum had happened within it? Or is it, in determining whether the defendant is liable and what is the measure of his liability, to have regard to the law of the place where those things actually happened? Saying that a New South Wales court will entertain an action on a foreign tort because it is of a character actionable in New South Wales does not necessarily mean that it must determine it in accordance with the municipal law of New South Wales. Assumption of jurisdiction and choice of law are logically distinct. It has been suggested that actionability by English law relates only to the "threshold" question, as it has been called, and that what Willes J. said does not mean that English law is the substantive law to be applied. Two papers - by Professor Yntema and Mr. Spence - in the Canadian Bar Review in 1949 (vol. 27, p. 116 and p. 661) assert this. They have led other writers to express at least doubts. Thus in the last, the seventh, edition (1958) of Dicey's Conflict of Laws, Professor Kahn-Freund has said (at p. 943), "There is far less authority than is often assumed to exist in support of the so-called 'First Rule in Phillips v. Eyre' as a rule of substantive liability, and little can be adduced in its favour from the point of view of justice or convenience". (at p41)

4. In Holdsworth, History of English Law (vol. 15, p. 336) it is said of the nineteenth century development of private international law that "For the clashing theories and dicta of professors there was substituted the authority of leading cases. The sphere of speculation at large was limited to cases not covered by authority". There are still areas not covered by authority, areas in which academic theory and speculation, interesting and indulged in, are aiding the development of the law. But professorial dicta continue to clash : and statements of what the rule is and of what it might be, or in the opinion of the particular writer ought to be, tend sometimes to be confusing. It is to authority that we are bound to look. And authority that we should follow does, I think, show that, under our system of private international law as it stands at present, a court that entertains an action based upon a foreign tort must (unless there be a statute to the contrary) decide the rights of the parties as it would in an action based on a similar event occurring within its own domain. That seems to me to accord with what Selwyn L.J., speaking for the Privy Council, said in The Halley (1868) LR 2 PC 193, at p 204 , the case that is for us the real foundation of the rule : "it is, in their Lordships' opinion, alike contrary to principle and to authority to hold that an English court of justice will enforce a foreign municipal law and will give a remedy in the shape of damages in respect of an act which, according to its own principles, imposes no liability on the person from whom the damages are claimed". When in Koop v. Bebb (1951) 84 CLR 629, at p 642 this Court spoke of "the rule of private international law which defines the conditions of civil liability" in one State for an act done in another, the reference was not, as I read the judgment, merely to the entertaining of an action but also to the substantive law for determining liability in an action. I may add that some text writers state this as the correct view after considering what its critics have said. Professor Falconbridge does so in the second edition (1954) of his Conflict of Laws (p. 812). And Doctor Wolff puts it all in a sentence : "To sum up : the orbit within which the lex loci delicti is operative is very limited ; it is restricted to the question : is the act that caused the damage justifiable? All other questions must be answered by the (English) lex fori" : Private International Law, 2nd ed. (1950) p. 493. (at p42)

5. I turn therefore to the present case : was the wrong one that, by the law of New South Wales, would have been actionable if committed in New South Wales? One view is that, because the appellant was guilty of contributory negligence, there never was an actionable wrong. On that view the appellant in theory never got over the threshold of the New South Wales Court. Another view is that the appellant's complaint was of a wrong actionable by the law of New South Wales ; that his case was thus one which that Court could properly try and which was to be tried by applying the municipal law of New South Wales : that on that basis its judgment was properly for the defendant, the plaintiff's claim having been defeated by his contributory negligence. In one sense it does not matter, if the case be regarded simply as one of the conflict of laws, which of these two views is correct. On either the appellant's action should have failed. But the distinction has some bearing on later aspects of the argument. I therefore shall briefly consider it. Is it correct to regard an absence of contributory negligence on a plaintiff's part as an ingredient in the tort of which he complains, an element that is in a cause of action for negligence? That can perhaps be maintained if the common law of contributory negligence be explained simply in terms of causation. Sometimes it has been. Bowen L.J., for example, said in Thomas v. Quartermaine (1887) 18 QBD 685, at 697 : "It rests upon the view that though the defendant has in fact been negligent, yet the plaintiff has by his own carelessness severed the causal connexion between the defendant's negligence and the accident which has occurred ; and that the defendant's negligence accordingly is not the true proximate cause of the injury. It is for this reason that under the old form of pleading the defence of contributory negligence was raised, in actions based on negligence, under the plea of 'not guilty'". A plea of the general issue sufficed because, as stated in Bridge v. Grand Junction Railway Company (1838) 3 M &W 244 (150 ER 1134) it negatived the allegation that the damage was caused by the defendant's negligence. But this seems to depend upon a special conception of the potency of one element in a causal complex : see Henwood v. Municipal Tramways Trust (S.A.) (1938) 60 CLR 438, at p 458 . And it is beyond dispute that the onus of establishing contributory negligence is on the defendant. In some cases that onus may be discharged in the plaintiff's own account of the happening that caused him harm : see Wakelin v. London and South Western Railway Co. (1886) 12 App Cas 41, especially at pp 47, 51 ; Williams v. Commissioner for Road Transport and Tramways (N.S.W.) (1933) 50 CLR 258 . But the onus is always on the defendant and it seems to me, therefore - and without entering further upon the much discussed topic of the rationale of the law of contributory negligence and the doctrine of last opportunity - that an allegation of contributory negligence is a matter of defence, more in the nature of a plea in confession and avoidance than of a traverse. The judgments given recently in this Court in Curran v. Young (1965) 112 CLR 99 , contain much that is directly in point. In the seventh edition (1958) of Dicey it is said (p. 959), less explicitly than in the previous edition, that "on the customary interpretation of the rule" (scil. the English rule concerning foreign torts) "any defence which is valid under English law is available to the defendant, although it is not accepted under the lex loci delicti, and conversely any defence which is valid under the lex loci delicti is also available to him, irrespective of the lex fori, unless it is a procedural defence. This applies to common law defences". Contributory negligence is referred to as an illustration. I have noticed that Professor Glanville Williams in his work Joint Torts and Contributory Negligence (1951) at p. 339 says that where an action in respect of a foreign tort is brought in England, questions of contributory negligence are governed by the law of the place of the wrong. But this seems to be incautiously stated by that learned author ; for in support of it he cites passages from Rabel, Conflict of Laws and Hancock, Torts in the Conflict of Laws in which, as I read their works, both writers were dealing with the position in the United States, where the substantive law by which liability is determined is the law of the place of the wrong. (at p44)

6. To sum up the matter so far : the effect of our rules of the conflict of laws is that the appellant's action was justiciable in a New South Wales court and to be determined there according to the law of New South Wales. By that law the contributory negligence of a defendant is a complete answer to an action for negligence. Counsel for the appellant did not seriously challenge that for us the doctrine of Phillips v. Eyre (1870) LR 6 QB 1 still is the established rule. He sought rather to get round it, and by threading a path through federal law to reach the same position as in the United States where liability depends upon the lex loci delicti. To this argument I now turn. (at p44)

7. The first proposition was that the District Court was exercising federal jurisdiction. Even if this were so, I do not see that it would decisively advance the argument. But was it so? A court invested with federal jurisdiction by s. 39 of the Judiciary Act has a capacity to adjudicate in matters arising under any law made by the Commonwealth Parliament. It then acts, using the words used in Lorenzo v. Carey (1921) 29 CLR 243, at p 252 "as the judicial agent of the Commonwealth". Federal jurisdiction depends upon the grant by Commonwealth law of a power of adjudication rather than upon the law to be applied in adjudicating. 'Federal and State jurisdiction may overlap and be exercised concurrently. But a State court does not exercise federal jurisdiction whenever it has to apply or take into consideration some law made by the Parliament of the Commonwealth as part of the body of law that binds it. Every Australian court, State or federal, is bound by all laws validly made by the Parliament of the Commonwealth : see the Constitution covering cl. 5. The argument that the District Court was exercising federal jurisdiction in this case was based upon an assertion that the case before it was a matter arising under a law made by the Commonwealth Parliament. But that, it seems to me, is a mistaken view. The appellant sued upon a cause of action known to the law of New South Wales. True it is that, by the law of New South Wales, he could only prosecute his action successfully if the defendant's conduct were wrongful where it occurred, that is in the Australian Capital Territory ; and that therefore the New South Wales Court must notice what the law there was. But, let it be assumed that the law there was to be found in a law made by the Commonwealth Parliament - that does not mean that the matter before the New South Wales Court arose under a law of the Commonwealth Parliament. It arose under the law of New South Wales. The obligatio theory, as expounded by Holmes J. in the United States, has been said in Koop v. Bebb (1951) 84 CLR 629 to be not part of our law. Moreover, notwithstanding the great names that can be arrayed in support of that theory, I would be inclined, if we had to determine juristic fundamentals, to say with diffidence and humility that the rather different view taken by Judge Learned Hand and others seems to me preferable. However that may be, the proposition that the District Court was exercising federal jurisdiction fails. (at p45)

8. But the appellant's main argument was not necessarily founded on that proposition. He based it also upon a view of the superiority of federal law over the law of a State, a proposition that he contended was supported by references to the full faith and credit requirement of the Constitution s. 118, the State and Territorial Records Recognition Act 1901-1964, s. 18, covering cl. 5 of the Constitution and other matters. But much of this seemed to me to involve a misconception. The laws of the Commonwealth are not a transcendent system of jurisprudence supernally hovering over the laws of the States. Where a State law is inconsistent with a valid Commonwealth law, the latter prevails. That is all. No inconsistency occurs here. The Ordinance that is in question is, upon its proper construction, directed only to the trial in the courts of the Territory of actions properly triable there. It is the law of the Territory. If it purported to have a wider scope, I would greatly doubt its validity ; for, apart perhaps from the power with respect to trade and commerce, I do not know under what head of power the Parliament could legislate in the matter of motor car traffic accidents everywhere in Australia. Nor do I see any power under which it could make the law of negligence uniform throughout Australia, however desirable that might seem. As to the Territorial Records Recognition Act 1901-1964, s. 18, I shall simply quote what was said by O'Connor J. in this Court over fifty years ago : "In the course of the argument it was contended that, since the passing of the Commonwealth State Laws and Records Recognition Act 1901, no proceedings in a State Court can be treated in the Court of another State as proceedings in a foreign Court. In my opinion that Statute has no bearing on the matters under consideration in this appeal. The 18th section, which is the section relied on, is really an evidence section, and does not affect the principles on which the Courts of one State take cognizance of wrongs committed in another State. That principle is well recognized, and may be thus stated. Where an act is wrongful both by the law of the State in which it was committed and by the law of the State in which the wrongdoer is being sued, the action will lie" : Varawa v. Howard Smith Co. Ltd. (1911) 13 CLR 35, at p 69 . (at p46)

9. In the Supreme Court, Jacobs J. described our rule, the rule of English law, as "incongruous and unsatisfactory", Hardie J. called it "rigid and obsolete". Brereton J. said that there may be much to be said for the American view, but he recognized that "this is not our concern". It may be that looking to the lex loci delicti, as the governing law, as is the rule in America, is the more logically satisfactory solution of the question that arises when laws conflict. But, of course, it does not necessarily produce a more just result ; for the lex loci delicti may not be the law that best serves the needs of justice. What is really needed is not a different choice between conflicting laws, but an elimination of the conflict, so that Australians, being one people, should not be troubled by differing laws on a topic such as negligence on which the law could well be made uniform. That in Australia collisions between motor vehicles should give rise to difficult problems of conflicting laws is regrettable. But this is not a matter that courts can put right. By co-operation the Commonwealth and the States could make principles of law that directly affect so many Australians the same for all of them. (at p46)

10. What should be done in the present case ? The majority of the Supreme Court were, I consider, right in upholding the appeal in that Court and setting aside the verdict of the jury. I have got much assistance from their Honours' judgments. But the learned trial judge had submitted the case to the jury on the assumption that the law to be applied was not the law of New South Wales, but of the Australian Capital Territory. He had directed them carefully. He spoke to them of contributory negligence, but necessarily in a context that would direct their attention primarily to whether the conduct of the plaintiff was such that he should be required to bear some part of the responsibility for the damage. It seems to me that they would be likely to have understood the expression "contributory negligence" to mean, and in the answers they gave to have used it as meaning, something rather different from conduct that would answer that description at common law and defeat an action for negligence. They would scarcely have thought that they had to consider whether the plaintiff had failed, at the critical time, to take proper care and that this had caused the accident, he being thus precluded from recovering damages from the defendant. The meaning of contributory negligence is perhaps not changed by the change in the law resulting from statutory provisions for apportionment of damages. But much has been said on this topic by judges, and their words have had much critical commentary and analysis in textbooks and journals. I refrain from here entering into that discussion. It suffices to say that, in my view, there is an essential philosophic distinction between two concepts, to both of which the name contributory negligence is commonly given. I realize that the common law doctrine has been explained and analysed in a variety of ways. Whatever be the correct view of it, the change made by the statute does, I think, mean that a summing up to a jury must now takes a different form. Apart from anything else, it becomes unnecessary to instruct the jury at all upon the doctrine of the last opportunity. That in this case the jury, if instructed according to the law of New South Wales, might have approached the question of contributory negligence in a different way is not, I think, to be denied. There is a difference between saying that a plaintiff must himself take the blame and saying that it is just and equitable that he bear a share of the blame. (at p47)

11. I therefore consider that there should be a new trial, one in which the matter would be tried in accordance with the law of New South Wales. (at p47)

Orders

Appeal dismissed with costs.