Blunden v Commonwealth of Australia
[2003] HCATrans 262
[2003] HCATrans 262
IN THE HIGH COURT OF AUSTRALIA
Registry No C6 of 2003
B e t w e e n -
BARRY THOMAS BLUNDEN
Plaintiff
and
COMMONWEALTH OF AUSTRALIA
Defendant
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 7 AUGUST 2003, AT 10.04 AM
(Continued from 6/8/03)
Copyright in the High Court of Australia
GLEESON CJ: Yes, Mr Solicitor.
MR BENNETT: Your Honours, we have agreed on time; I will be very brief and there is a good chance we will finish by lunchtime. I have six short points I wish to make. The first concerns nomenclature. I was taken to task as I got to my feet yesterday for describing this as a case about private international law. The description of the area in which we are operating, which appears from Pfeiffer, is identification of the applicable law.
KIRBY J: But the question is, do you start from Pfeiffer or is there some - for example, it occurs to me there may be some principle of public international law that affects armed vessels and what the law on armed vessels is. I just do not know and I have not had any assistance on that point. You do not start from Pfeiffer at all, you do not even start from private international law; you start on a different paradigm altogether.
MR BENNETT: Your Honour, pace the dictum in the Tin Council Case, public international law ‑ ‑ ‑
KIRBY J: I do not know that case. I do not know the dictum.
MR BENNETT: It is a dictum, your Honour, which says that public international law is part of English law. It arose in a case involving the winding up of an insolvent United Nations agency and the questions of what law applied to it. We would submit, public international law ‑ ‑ ‑
KIRBY J: On the face of things, what if there had been a collision between an Australian naval vessel and a naval vessel of another foreign country on the high seas? You would have to resolve that in a different paradigm altogether.
MR BENNETT: That might have to be resolved by methods other than judicial. Your Honour, one might but it is not suggested that arises here where one has ‑ ‑ ‑
KIRBY J: At least in theory, one can imagine that on the Queen’s ships, including the ships of the Queen of Australia or the ships of the Commonwealth of Australia, that there would be some principle of public international law that Australian law applies on such ships. Where you would go from there into the detail and whether that would incorporate any limitation law is a matter I have not thought of, but it is getting the paradigm right that led to the Court’s intervention and you tried to say it is self‑evidently the paradigm of private international law.
MR BENNETT: Your Honour, the way we put it is there is a triangle. Where one has another law system which is a State of Australia, Pfeiffer lays down the rule. Where one has another law system which is a foreign country, Zhang lays down the rule. Where one has a place where there is no system of law, the Court should lay down the rule which we suggest in this case and thus complete the triangle.
KIRBY J: But my question is addressed to whether a ship flying the Australian flag is a place without any law and intuitively one says that as with an aircraft which may be covered by statute that is not the case, that a ship flying the Australian flag is a little bit of Australia that is travelling around the world that carries with it Australian law, just as the ships that bore the convicts out here carried with it the common law of England.
MR BENNETT: For some purposes that may be so, your Honour, but that area does not deal with collisions between ships. It has difficulty in dealing with ships that do not have a port of registration and it is not the area we are concerned with here. There is also a fascinating debate on the “bit of Australia” argument. The general view taken today is that, for example, embassies are not bits of Australia.
In The International Law of the Sea edited by Professor Shearer, the 1984 edition, there is a passage at page 735 – I have copies for your Honours and my learned friends – which says ‑ ‑ ‑
GLEESON CJ: Yes, thank you.
MR BENNETT: There is a passage dealing with what your Honour Justice Kirby puts to me. It is at 735, point 8:
English doctrine has always regarded the “floating island” theory with suspicion, despite its invention by an English writer. Lord Stowell in 1804 was cautious of it. When it was canvassed in R v Keyn the court was equally cautious, and when implications of the theory were detected in the case of The Lotus, Judge Findlay described it as “a new and startling application of a metaphor”. The doctrine was emphatically repudiated by the Privy Council in Chung Chi Cheung v R. In this case the Chinese revenue protection ship Cheung Keng, which was commissioned as a public armed ship, was in what was described as the “territorial waters” of Hong Kong, one mile from the coast of Fataumun, when the appellant, a British subject, shot and killed the captain, also a British subject, who was in the service of the Chinese government. The chief officer ordered the vessel proceeded to Hong Kong, where he sought the aid of the police in arresting the appellant . . . The Provincial Government of Kwangtung sought extradition, but the application failed because he was a British national. He was discharged, but immediately re‑arrested and charged with murder “in the waters of this Colony”, convicted, and sentenced to death. The Full Court of the Hong Kong Supreme Court was of the opinion that the immunity accorded to foreign warships when within territorial waters was not based on extraterritoriality, was a freely accorded waiver from one sovereign State –
to another, et cetera.
Appeal was made to the Privy Council on the question of the exercise of jurisdiction . . . The theory of immunity which the Supreme Court adopted implied that, once the immunity of a warship is waived, it stands on the same footing as a merchant ship; and further, that acts committed on board when the ship is in the territorial sea are affected by the local criminal law –
In other words, the floating island theory is rejected. Lord Aitkin said:
However the doctrine of extraterritoriality is expressed, it is a fiction, and legal fictions have a tendency to pass beyond their appointed bounds and to harden into dangerous facts. The truth is that the enunciators of the floating island theory have failed to face very obvious possibilities that make the doctrine quite impracticable when tested by the actualities of life on board ship and ashore.
HAYNE J: A really similar effect is the discussion by Davies and Dickey, Shipping Law, 2nd edition at pages 60 and following.
MR BENNETT: Yes.
HAYNE J: A notion of importation of Australian law aboard ship was discussed.
MR BENNETT: Yes, if your Honour pleases.
KIRBY J: With aircraft you often hear on international announcements that according to the law of Australia on a Qantas international flight - there may well be legislation that covers that, I suppose.
MR BENNETT: One assumes so, your Honour.
KIRBY J: Yes.
MR BENNETT: As I said before, there are international treaties which make criminal conduct governed by the law of the place the plane next lands at, and that is reflected I think in some local legislation, and no doubt the same will develop in relation to spaceships at some time in the future. We stress this triangle approach of interstate legal system, foreign legal system, no legal system in the lex loci, and in selecting the applicable law one has to deal with those three situations. My second point is ‑ ‑ ‑
HAYNE J: Well, all of that occurring in the context of the Judiciary Act.
MR BENNETT: Yes, your Honour.
HAYNE J: And the analysis which you make in your submissions in reply at paragraph 1.
MR BENNETT: Yes.
HAYNE J: In particular, as I understand those submissions, you say that the point at which we enter upon the immediate problem is identified at paragraph 1.2 of the submissions in reply, namely section 80 of the Judiciary Act.
MR BENNETT: Yes. Your Honour, perhaps when one says they are choice of law rules, one might broaden that as a matter of nomenclature to selection of applicable law rules.
HAYNE J: Let us then understand the process that you say is engaged. Section 80, you say, is engaged because there is no relevantly applicable Commonwealth law and the courts of the Territory are therefore to apply the common law. You ask for the creation of a common law rule which would apply a particular process to determine the law of the ‑ ‑ ‑
MR BENNETT: Yes. Your Honour, a common ‑ ‑ ‑
HAYNE J: That common law rule for which you contend is one, I think, which on analysis, will be found to have operation only – I think, only – in case of a collision on the high seas between vessels to which, at the time of these events the Shipping Act did not apply, to which, were it to occur today, other applicable Commonwealth legislation would not apply. That is, the common law rule for which you contend is, in effect, unique to this set of circumstances?
MR BENNETT: No, your Honour, with respect. Let me give your Honour a number of other situations where it might apply. It might apply between two swimmers in the middle of the ocean ‑ ‑ ‑
GLEESON CJ: What happens in the case of oil drilling platforms?
MR BENNETT: There is legislation concerning the continental shelf which, I think ‑ ‑ ‑
HAYNE J: It used to be in the Petroleum (Submerged Lands) Acts bundle of legislation.
MR BENNETT: Yes, it is dealt with in the legislation. Yes, but certainly without being whimsical new volcanic islands, any place on the earth’s surface, a reef in the middle of the ocean, a place that is not claimed by any country, outer space I referred to yesterday, any situation where there is no law area, and indeed, any collision at sea where the Admiralty jurisdiction is not invoked by the plaintiff, and the plaintiff need not invoke it, of course.
HAYNE J: Because that common law rule for which you contend, I think, finds no analogue elsewhere in the common law world. All other common law systems, I think, so far as my limited look at the problem goes, apply the law of the forum or, if there is a flag of the vessel which refers to a single law area and only one flag is engaged, it may resort to that. Am I not right in saying that the common law rule for which you contend finds no analogue elsewhere?
MR BENNETT: Your Honour, one analogue is in the law of contract and that is discussed in Tojo Maru where one applies the proper law of the contract, even if it is to be performed at sea or in a place where there is no law area. There is a discussion of that in Tojo Maru, which I will come to.
HAYNE J: The analogy which is most obvious is that you seek the application of the proper law of the tort.
MR BENNETT: Yes, in a situation where there is no lex loci delicti. Your Honour, we stress that we are arguing this in the context of a jurisdiction which has created the common law rules of Pfeiffer and Zhang, and we simply put it as a matter of completing the triangle. It is the third logical possibility, the tort committed where there is no law area. As was said in Zhang, maritime torts and aerial torts involve different considerations. That is because in the selection of the lex loci delicti as the solution in areas A and B, that solution is not open in area C. So one has to say, in completing the triangle, in developing the common law in that new way that the court has set out to develop it, how does one complete it? That brings me to my ‑ ‑ ‑
GUMMOW J: Why does one have to? That is the threshold question. Why does the forum have to allow of some other law?
MR BENNETT: Because, your Honour – and that is my second point ‑ for all the reasons given in Pfeiffer relating to the disadvantage of the forum as the law to be chosen: the problems of forum shopping, the unfairness to defendants, and so on. The passages in Pfeiffer, particularly in ‑ I will not take your Honours to them – paragraph 59, where it is described as “odd or unusual”, paragraph 44 and paragraph 83. In your Honour Justice Kirby’s judgment, paragraph 129; in your Honour Justice Callinan’s judgment, paragraph 184. Each of those paragraphs is very critical of the law of the forum as a solution to the problem arising in that case.
KIRBY J: What did Mr Bell say in his text? You suggested yesterday he did not find the notion of forum shopping so troubling, but that was what was behind my reservation about just being able to pick any old forum in Australia with its different limitation rules.
MR BENNETT: It is hard to summarise the whole of his book, your Honour.
KIRBY J: No, on this problem. Is there anything in it we should know about? I mean, it is a recent study of the issue.
MR BENNETT: I do not think specifically, your Honour. It is a collection ‑ ‑ ‑
KIRBY J: I think this was his research topic, was it not?
MR BENNETT: Yes. He expresses the view that forum shopping is not as evil as ‑ ‑ ‑
KIRBY J: That was Professor Juenger’s view.
MR BENNETT: Yes. Well, one can debate that, and one knows the arguments on both sides.
GUMMOW J: What is different here, though, is that there is no competing jurisdiction with an interest.
MR BENNETT: Your Honour, there is no competing law area with an interest. There is competition with the jurisdiction with the closest connection, if one applies a proper law analogy. Ironically, in this case, that jurisdiction is the same as the lex fori, which, in one sense, might enable the problem not to be answered at all, except to reject the contentions of my learned friends. We submit that this Court has spoken very recently as to the disadvantages of the lex fori and it should, in leading the common law world as it has in Pfeiffer and Zhang, now complete the triangle in the very small area left. We suggest a rational means of doing that.
CALLINAN J: Mr Solicitor, what would be the position if the action had been instituted in this Court, as it could have been?
MR BENNETT: The same, your Honour. This Court, assuming it did not remit it, which is a fairly big assumption, would have applied section 79 and 80 in the manner we have suggested and one would be asking exactly the same questions that the parties are asking the Court in this case. The trial judge, of course, was faced with pleadings as between New South Wales and the Australian Capital Territory, but that is a different issue.
The third matter is simply to rebut a proposition put to me yesterday that in some way the Commonwealth should lie in the bed it has made because it has not enacted limitation legislation. What we are submitting in this case is concerned with something far more general than the specific facts in this particular case. In another case it may not be the Commonwealth that is the defendant. Federal jurisdiction may be invoked in some other way.
HAYNE J: Can you give me an example of such a case, Mr Solicitor, leaving aside volcanic islands and the like?
MR BENNETT: Well, your Honour, any case where the event constituting the tort occurs outside a law area. The simplest example might be an event occurring at sea where the Admiralty jurisdiction is not invoked and, of course, it is a limited jurisdiction.
HAYNE J: Again, can you give me an example of such a case that arises out of a collision causing personal injury to someone on one of the vessels, where the limitations provided would not be engaged?
MR BENNETT: Yes, your Honour. A collision at sea between two unregistered pirate vessels where a person is injured. Indeed, any collision at sea case where the Admiralty is not invoked. One cannot assume that every point on the globe is in a law area or that every event occurring at sea necessarily involves a ship or ships registered in a place or places. The law has to deal with circumstances broader than that and also ‑ ‑ ‑
HAYNE J: I am sorry to delay and I will remain silent in a moment, but if you go back to the turn of the 20th century and collisions involving ships of the Royal Navy, action was commonly brought in such cases by suing the captain of the vessel and the navigating officer. As far as I can tell, the English courts dealing with such suits simply applied the law of England regardless of where the collision occurred.
MR BENNETT: Your Honour, there is a number of things about that. First, the actions are probably brought in the Admiralty jurisdiction. Secondly, in any event, there was a far more primitive view of selection of applicable law in those days which was far more favourable to the law of the forum. Thirdly, of course, one was not dealing in a universe where Pfeiffer and Zhang occupy such a large part of it. We are simply inviting your Honours to act consistently with the decisions in those cases.
KIRBY J: Could you remind me of what – there was a special statute passed in a number of Australian jurisdictions, if not all, relating to the character of limitation statutes, that they were either to be procedural or substantive and categorise them.
MR BENNETT: I think substantive, your Honour.
KIRBY J: They made them substantive.
MR BENNETT: That is following a number of decisions of this Court.
KIRBY J: Going back to Justice Callinan’s question, that if the suit is – first of all, we start from the proposition that the matter has to be tried somewhere to get a decision and therefore the plaintiff, in the first instance, decides what the venue will be. Now, therefore, you go into that venue and the court for the substantive law will follow Pfeiffer and Zhang.
MR BENNETT: Yes.
KIRBY J: Does the statute say anything as to what it will do in applying the limitation law of that venue or is that court then bound to apply its limitation statute just on the accident of where the plaintiff has brought the proceedings or where, if it came to this Court, we are sitting or we have remitted the proceedings to be tried?
MR BENNETT: Your Honours, as I understand it, it is concerned with a different question, which is whether limitation provisions are substantive or procedural and therefore whether they one automatically applies one’s own or engages in a selection of the applicable law.
KIRBY J: We better have a look at that statute, at least if you will refer us to it. I think they were mentioned in Pfeiffer.
MR BENNETT: I will do that, your Honour. We do stress it is not just limitations. The problem arises more broadly than that. It arises in relation to tort reform. There are jurisdictions which severely limit damages recoverable in tort. Let us assume that at a given point of time, damages are heavily capped in every Australian State except one. Are we going to contemplate with equanimity the result that plaintiffs in all cases where there is no law area of a lex loci delicti will be free to select that State, even if there is no other connection with the jurisdiction. There are real problems which extend beyond limitation law.
GUMMOW J: Just before you go on, Mr Solicitor, you said several times that it is all different if it is in Admiralty jurisdiction. What exactly are you saying?
MR BENNETT: Your Honour, we do not have to deal with that here, there is a doctrine of laches in Admiralty, although no ‑ ‑ ‑
GUMMOW J: There is the limitation provision.
MR BENNETT: And there are limitation provisions which govern some cases.
HAYNE J: Governing personal actions, not just actions in rem, but governing personal actions for personal injuries.
MR BENNETT: Yes, if brought in the Admiralty jurisdiction, yes.
GUMMOW J: It looks like three years.
MR BENNETT: Yes, but there is a provision also which then picks up any applicable limitation period of the forum in the following subsection – not of the forum, but selected by the forum.
GUMMOW J: Yes, but I thought you were saying this question of selection of governing law would be differently approached if the Admiralty jurisdiction had been invoked. Why? Assume there is a general maritime claim for personal injury arising out of an act or omission by the person controlling the ship. That is a general maritime claim under section 4(3). We are not worrying about arresting ships at the moment.
MR BENNETT: No.
GUMMOW J: What would be the governing law? Would it be any different is what I am asking, I suppose?
MR BENNETT: Well, your Honour, it is a question for another day whether, in that situation ‑ ‑ ‑
GUMMOW J: Maybe it is a question we need to know the answer to in order to think about the other question that we do have to decide.
MR BENNETT: The answer would depend on whether a court sitting in Admiralty and applying the common law rules developed in Admiralty would apply and how it would apply whatever this Court determined is to apply as the general common law rule for the selection of the applicable law in the absence of a law area. So in a sense it becomes circular.
GUMMOW J: Yes, that is what I thought.
MR BENNETT: The fourth matter concerns the answer which I gave your Honour Justice Hayne a few minutes ago about other analogues and the one in contract and we simply say that in contract the proper law of the contract has been selected by the common law following Bonython, and that is able to be adapted quite easily to the maritime situation, and that is discussed in the Tojo Maru, which we have handed to your Honours. I will not take your Honours to the passage. It is the beginning of the speech of Lord Diplock, at page 290 to 291. It is a convenient analogue, if one rejects the law of the forum, in this last area that needs to be filled.
The final two matters I need to mention very briefly - although I may need to deal with them at greater length in reply, depending on what my learned friends say – are simply to reject the pure common law on its own, unaccompanied by statute, and nothing as the appropriate laws, nothing can be quickly rejected. That would mean that the oceans were, in some senses, an Alsatia; that one would say, if you have a tort committed in a place where there is no law, then no one can sue and no one can do anything. That might suit the Commonwealth in this case, but it is not a result for which we contend, and it would be an unfortunate result.
KIRBY J: Is not there a difference? The common law does provide for a law of negligence, but the common law did not provide for a law of limitations, and it had to depend upon statute to introduce the notion of limitation.
MR BENNETT: Your Honour, there are many things the common law might provide which would be very uncomfortable in a trial today. It might be an amusing exercise at a law school, in a moot in legal history to have a trial under the pure common law. It would be a very unsatisfying and unedifying ‑ ‑ ‑
KIRBY J: All the more reason for you to have a statute?
MR BENNETT: Your Honour, there are difficulties with a statute.
KIRBY J: What, on an Australian vessel, flying the Australian flag? I do not see why.
MR BENNETT: For that specific ‑ ‑ ‑
KIRBY J: As I understand it, in relation to the defence services, the Commonwealth did enact a law saying that the criminal law of the ACT would apply. This was before recent changes. Is that not the case, to the defence services? By federal statute the Parliament enacted that the criminal law of the Capital Territory would apply to the defence services.
MR BENNETT: I do not know the answer to that question, your Honour.
KIRBY J: I think it was.
MR BENNETT: I can have an inquiry made. Your Honour, the problem is wider than finding Limitation Acts in relation to the Melbourne/Voyager collision. It is a much wider problem, as we put it. There is a Law Commission report, Report No 92, part G – I will not hand it to your Honours or take your Honours to it, but it does discuss some of the difficulties in relation to power of the Commonwealth passing general tort legislation to be applied in this type of case.
KIRBY J: Would there be problem on an Australian vessel under the defence power?
MR BENNETT: No, your Honour, not in relation to these specific facts.
KIRBY J: As Justice Gummow says, the external affairs power. There is no problem of power at all.
MR BENNETT: There are powers which could deal with specific aspects of the problem, but the ‑ ‑ ‑
HAYNE J: You seem to be blowing a lot of cold air on the Admiralty provisions, Mr Solicitor, which rather astonishes me.
MR BENNETT: Your Honour, they are not the law of the law area for the reasons I have given.
KIRBY J: I have never heard you so reluctant about Commonwealth power.
MR BENNETT: I simply indicate there are problems. I do not identify them. In relation to no law, can we just say this? One can understand a situation where one does something which might be a tort in the relevant Australian jurisdiction, in a place where it specifically is not a tort. For example, if one had a country where there was total freedom of speech and no law of defamation, and one Australian were to defame another there but not publish it beyond that country, we would have no difficulty in saying we apply the law of that law area, and the action does not arise.
It is different where that defamation occurs in a place where there is simply no law area at all and in that situation, we would submit, it is more rational to select the forum with the closest connection than to simply take the law of the forum. Let us suppose one is on an American warship, one mile outside American territorial limits, the lex loci delicti may be a place where there is no law, but the connections are all with the legal system of the United States, and ‑ ‑ ‑
KIRBY J: Which legal system in the United States? They do not have the same view that we do about the common law.
MR BENNETT: No, your Honour, they do not. One would have to select what are the connections with the particular ‑ ‑ ‑
KIRBY J: Now, what sort of connection are you talking about? Is it the accident of proximity in geographical terms or is it that here the Naval Board is in charge of the vessel and therefore it is, as it were, constitutional connection or is it some other connection?
MR BENNETT: Largely the second, your Honour. It is a combination. It is like the proper law of the torts doctrine, with all its disadvantages, but it is, we would submit, the best of many evils. One looks at all the connections. One looks at proximity. One looks at control. One looks at the various matters involved. In this case we have set out in our submissions a whole range of matters which show a substantial connection with the Australian Capital Territory.
KIRBY J: This seems to have some resonances with the issues that were debated in Gutnick, that where you have the high seas or outer space or the Internet you have to consider the new regime of some kind.
MR BENNETT: Gutnick is a slightly different problem. Gutnick involved two other elements. The first was the problem of the locus delicti being a place having very little connection with anything – that is the first problem – and that was something which this Court indicated in Pfeiffer it was prepared to accept. Obviously there are cases where the lex loci delicti will be accidental: the husband and wife who drive their car across a corner of another State to take a short cut and who are in it very much by accident. Of course one can have that sort of case. The other aspect of Gutnik of course was the question of where the publication occurred, which we are not concerned with here. In one sense the – no, that is a different sort of
situation. The problem one has here is one is not searching for the locus delicti because it does not take one very far.
KIRBY J: In your written submissions you assert alternatively for the Commonwealth that the plaintiff’s action is statute‑barred on the Imperial Act, 3.3.1, or that you apply the New South Wales Act. You do not refer to the Limitation Act (ACT) there.
MR BENNETT: Well, we do, your Honour. There are some questions arising out of the ‑ ‑ ‑
KIRBY J: I am referring to 3.3.1 and 3.3.2.
MR BENNETT: Yes. The Imperial Act only arises because at the time that was the Act in force, not having been repealed ‑ ‑ ‑
GUMMOW J: We need to know this, do we not, because the questions require us to focus on this, do they not, which limitation regime?
MR BENNETT: Yes, but one only gets there after one has determined the ‑ ‑ ‑
GUMMOW J: Yes, assume you are right and it is the ACT, but then which limitation regime? Why is it any limitation regime other than that which existed when the cause of action arose back in 1964?
MR BENNETT: It would be, your Honour, subject to going through the various transitional provisions and seeing how they apply.
GUMMOW J: Someone will have to do that. Someone on your side too. You have pleaded it.
MR BENNETT: Yes.
GUMMOW J: Otherwise the questions cannot get answered.
MR BENNETT: Perhaps, your Honour, what I should do is have a document just tracing through the sections ‑ ‑ ‑
GUMMOW J: I think so.
MR BENNETT: ‑ ‑ ‑ and I will have that to your Honours later today. Those are my submissions if the Court pleases.
GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Little.
MR LITTLE: Thank you, your Honour. Perhaps without having the statute in front of me to answer Justice Kirby’s query about the choice of law Act that was passed by all the States and the Limitation Act passed by the States and the Territories. That Act provides that a forum court shall apply as part of the substantive law of the case the law, including the limitation law, of the place where the events occurred, if they occurred in a State or Territory other than that State or Territory hearing the case. It is of no application in this case because the events did not occur in a State or Territory other than the Territory here in the case. So that it does not apply in an international context and it does not apply in this case.
KIRBY J: Well, I would just like to have a look at the text of the statute ‑ ‑ ‑
MR LITTLE: Yes, certainly.
KIRBY J: ‑ ‑ ‑ because if there is a statute that commands, it must be obeyed, but it may be that this case sails through that particular problem out into the high seas, where we have still got to find which regime applies.
MR LITTLE: Yes, certainly. The fundamental proposition advanced by the plaintiff in this case is that whether one categorises the tests that have now been held to be appropriate by this Court in international and intra‑national tort cases as the law of the lex loci delicti, or whether one really looks at the law area in which the events occurred, is a moot point. It is our submission that, perhaps crudely translated, the lex loci delicti means the law applying at the place of the commission of the delict or tort. In our submission, that is ‑ ‑ ‑
KIRBY J: One day we will translate these things. The number of students doing Latin at school now is down to less than 1 per cent.
GLEESON CJ: That is only a prima facie view.
MR LITTLE: Some schools have been much higher, I suspect, your Honour.
KIRBY J: Some might, but I am talking about the people who we serve in these things.
GLEESON CJ: Who spend their days poring over private international law cases.
MR LITTLE: Exactly, your Honour, yes, and looking at Case No 15 – Anonymous [1722], which I am afraid I have not been able to locate in time for this hearing today.
It is our submission that the development of the proposition that we put, that one is not looking at a geographical area to determine the lex loci delicti, one is looking at a law area. We say this starts with Parker v The Commonwealth where Mr Justice Windeyer was faced with the first of these cases, and he said in that case, “Clearly, this case has nothing to do with any State or Territory. These are two Commonwealth ships colliding on the high seas. The applicable law is Commonwealth law.” That was followed in Groves, the case to which we have referred your Honours ‑ ‑ ‑
KIRBY J: That does not take it very far though, does it, because the Commonwealth does not have a statute but there would be common law by force of the Judiciary Act.
MR LITTLE: If I may develop my argument to answer that, your Honour. In Groves the discussion by his Honour Mr Justice Murphy, in our submission, is particularly apt, because he talks about a case and it was a land‑based case in that being considered there ‑ ‑ ‑
KIRBY J: What is the citation of that case?
MR LITTLE: Groves (1981-1982) 150 CLR 113, and his judgment particularly at page 134 at about point 8 ‑ ‑ ‑
GUMMOW J: This is an outmoded view. It has been outflanked. This was a view that there was some special “federal common law” because there was a series of distinct State common laws, and that is no longer the understanding. There is but one common law.
MR LITTLE: With respect, the critical passage ‑ ‑ ‑
GUMMOW J: His Honour was adopting the United States view of the federal common law.
MR LITTLE: With respect, I thought he was contrasting it with the United States view, your Honour.
GUMMOW J: They have had to invent the special ‑ ‑ ‑
MR LITTLE: At 135, point 7, the passage commencing “The High Court, as the federal Supreme Court”, et cetera ‑ ‑ ‑
GUMMOW J: Yes:
But undoubtedly in Australia as well as in the United States there is federal common law ‑ ‑ ‑
MR LITTLE: Yes, “surrounding federal Acts”. That is the second kind and I understand his Honour to be distinguishing between the United States position and the Australian and saying ‑ ‑ ‑
KIRBY J: I think what Justice Gummow says is right. At that time the received wisdom, and Justice Priestley wrote on this, was that there were separate common law units of Australia and Justice Murphy was searching in this particular context for a unified common law and he hit upon the idea of a federal common law and then later this Court has said that there is but one Australian common law and, therefore, the step taken by Justice Murphy on the way to that does not need to be taken because for
Federal and State concerns and Territory concerns, for all concerns there is simply one common law of Australia.
MR LITTLE: I was really tracing the history, your Honour, to show how the concept that is ultimately now applied has developed. That was, as your Honour said, a step along the way. The next case, interestingly enough, in circumstances not totally removed from the present, was in Mewett where this Court determined there was a common law in Australia.
Your Honours Justices Gummow and Kirby have dealt with that proposition and the source of that law quite extensively in Mewett, as did Justice Gaudron. The other judgments in that case tended to focus really on the Georgiadis proposition, but the passages in Mewett (1997) 191 CLR 471 that we rely on - we refer first to page 497 point 10, the decision from the judgment of his Honour Justice Dawson talking about the obligations, “the privileges and immunities” that the common law provides for the Crown subject to modification by valid legislation. We then next refer to page 526.
KIRBY J: Was that outflanked in these cases after Coutts by reference to the federal legislation requiring the Commonwealth to be as liable as closely as possible as between subject and subject which rendered the Commonwealth liable to military personnel in a way that at common law the Crown was not? Is that how it came about? It is many years since I looked at this.
MR LITTLE: I am not sure that is the case, your Honour.
KIRBY J: Because the traditional view was that the Crown was not liable to the armed forces.
MR LITTLE: To members of the defence forces but that was whittled down in Groves, for instance, to say that clearly the Crown had immunity at common law in a theatre of war on active service but short of active service they left open whether the immunity applied at all and they said in Groves’ Case it certainly did not apply. Groves’ Case had nothing to do with war or preparation for war or anything of that sort.
CALLINAN J: Page 125 suggests that if there were “training activities” there is still a possibility of a remaining immunity.
MR LITTLE: Yes, that is Groves, your Honour?
CALLINAN J: Yes.
MR LITTLE: Yes, certainly, in wartime.
CALLINAN J: No, but in training for war.
MR LITTLE: In training there is a possibility of it, yes.
CALLINAN J: Because their Honours said:
There is in this case no question either of war or of war‑like activities: not even of training activities ‑ ‑ ‑
MR LITTLE: That is so. The recognition of this Court in that case was of a common law immunity certainly in wartime conditions and maybe existing beyond that.
CALLINAN J: Groves was a simple traffic accident or something, was it not?
MR LITTLE: It was a workman who had climbed up a ladder to get on a transport aircraft, a serviceman, and somebody negligently erected the ladder and it collapsed.
GLEESON CJ: Immunity might be a convenient label but it is not very easy to relate the concept of duty of care to a war.
MR LITTLE: No. That is necessity in wartime is the basis for the immunity, as we understand it.
CALLINAN J: And training for war by simulating wartime conditions.
MR LITTLE: Well, perhaps.
KIRBY J: It would be cases and cases. In the United States Army they would not supply blood plasma during the latter stages of the Second World War and British and Commonwealth soldiers survived because of the different views taken within the armed forces concerning the supply of particular blood products. Now, it may be that that could raise a different issue to the duty owed by commanders in the field, or at least it occurs to me that there might be a point of distinction.
Anyway, we do not have to consider any of these things. I was just wondering whether there was a statute which is the foundation. If you can find statutes, you are on stronger ground than you are if you are searching around for the common law here, because in the relationship between service personnel and the State or the Crown, the service personnel did not have all that many rights.
MR LITTLE: They did not, but now of course we have the Navigation Act enacted in the early 1900s, but I do not think it came into effect until the 1920s, but it excludes naval ships, except where are contrary intention appears, and a contrary intention does appear in the sections of the Navigation Act to which we have referred in our submissions, which are made applicable to naval ships. However, the limitation provision in section 396 is not one of those sections made applicable to naval ships. The defence forces, as your Honour Justice Kirby has just observed, had their own code. They operate in a regime different to the other citizens of the Commonwealth of Australia.
KIRBY J: My recollection is that there has been legislation within the last five years with a defence services criminal code, or something of that kind, but that before that there was federal legislation which applied to defence personnel, so far as it was relevant, the criminal law of the Australian Capital Territory.
MR LITTLE: That is so, your Honour.
KIRBY J: I would like to have reference to that, because that is the type of thing that could have been enacted, as it would seem to me, by the Commonwealth, but was not, to apply to defence personnel, so far as was applicable, the limitation law of the Australian Capital Territory or of some other part of the Commonwealth, but it was not.
MR LITTLE: Exactly, your Honour. Your Honour is correct, that it is the law of the Australian Capital Territory that is applied for disciplinary matters in the defence forces and we can turn up that ‑ ‑ ‑
KIRBY J: I would be indebted to you if you give us reference to that in due course, but not now.
MR LITTLE: Yes, certainly, your Honour, we will be able to provide the Court with that in due course. The Commonwealth did have a bit of a go at regulating personal injury cases in the Navigation Act for the Navy, but left alone the question of limitation in respect of those. So, it is our submission that when one looks at both the common law, from which the duty arises, and then looks at the content and whether that is modified or not, one looks at the obvious statute dealing with the high seas, and that statute includes application to naval ships, so the Commonwealth law draftsman turned his mind to the question of the Navy, and specifically made it referrable to the Navy in the sections to which we have referred, but did not consider it, either relevant or advisable to impose the civil regime of time limitation on defence force personnel in that Act.
It is inconceivable that that was oversight, in our submission, because the care with which the Navy is excluded from the operation of the Navigation Act, except where otherwise provided, and then the careful provision for them in preserving causes of action on the high seas.
KIRBY J: The bringing of a proceeding in 2003 in respect of an event of 1964 is, on the face of things, peculiar. It is perhaps rendered less peculiar that the defendant is the Commonwealth and therefore can answer for itself, but in most circumstances such a very great delay would be a tremendous harassment and burden. The Limitation Act of the English Parliament under James I was 400 years ago. Is it too late for the common law to develop some other principle that, by analogy with statute, is a common law limitation?
MR LITTLE: There has always been the common law power to dismiss for want of prosecution. There is the doctrine of laches, of course, in equity, and that is applied in Admiralty now by the Admiralty statute.
KIRBY J: That is what my question was directed at. Equity developed its notions of limitation by analogy to statute.
MR LITTLE: That is an equitable doctrine that is not, in our submission, applicable in a common law action. Of course, although the delays are lengthy, there are numerous explanations for that, your Honour. The first is that after Parker, the expectation was only civilians could sue, because the Crown had immunity in respect of servicemen at that time. That was the position until the delivery of the judgment in Groves in 1982. So between 1964 and 1982 it would have been thought that there was no course of action available to the servicemen. After Groves and until 1988 it may have been thought there was an action, but it was then thought that the Comcare Act as originally passed in 1988 abolished and extinguished their action, until Georgiadis was delivered in this Court.
In addition, the conditions for which the plaintiffs seemed to sue, mainly in these cases for latent diseases, and the connection between their disease and the events that occurred in the sinking of the Voyager has only been made comparatively recently because of, perhaps, the development of psychiatry, or it may be that people now realising after Georgiadis and being advised that there may now be a cause of action have taken steps to do something about a diagnosis of their condition to see whether it is related. So there are lengthy delays, but the delays are explicable, in our submission, in those circumstances.
CALLINAN J: Mr Little, there were actions after Parker, a number of actions that I know of – the Commonwealth usually did not take the point.
MR LITTLE: I must say, I heard your Honour say that yesterday.
CALLINAN J: I can recollect two in Queensland.
MR LITTLE: Yes, I was not aware of that, your Honour, I must say.
CALLINAN J: I do not think any limitations or choice of law points arose. Certainly not the ones I know of.
MR LITTLE: I understood Mr Solicitor for the Commonwealth to say perhaps they may have been Voyager cases, and Voyager cases were in a different ‑ ‑ ‑
CALLINAN J: No, they were not.
MR LITTLE: They were Melbourne cases, were they?
CALLINAN J: One was, I remember, a reserve serviceman who sued a military doctor, who was also a reserve serviceman. There was no limitation point in that case, or, indeed, any choice of law.
MR LITTLE: I wonder whether a reserve serviceman may, your Honour, have been in a different category to a serving member of the defence force.
CALLINAN J: No, this arose out of military service. As I say, certainly in those cases, no relevant point arose, but I would not be absolutely confident that there were not actions elsewhere in Australia.
MR LITTLE: All we can say is we were not aware of other actions between Parker and Groves. It may well be the thought was that Parker had shut the door on them. It was the general thinking, perhaps. That aspect of Justice Windeyer’s judgment was disapproved in Groves, although it was obiter, because Mr Parker had not been a serviceman but a civilian. The obiter remarks of his Honour were disapproved in Groves.
CALLINAN J: I think it was Justice Windeyer himself who raised the point in Parker. I do not think anybody ‑ ‑ ‑
MR LITTLE: It was, and so it was obiter but it stood as a statement of ‑ ‑ ‑
CALLINAN J: Everybody accepted it.
MR LITTLE: They did, it seems, until Groves changed it. I perhaps got somewhat away from our initial proposition, which is that the Australian law area, as it is now described, following Pfeiffer v Rogerson, is a distinct law area. When one looks at the lex loci delicti of this tort that occurred on the high seas, one says, “What is the law applying to the place of this tort?” This tort occurred on an Australian ship carrying its Australian law, so Australian law is the lex loci delicti.
KIRBY J: Is this the floating island theory, because we are told by Mr Bennett that that is not a view which the English common law has embraced? If it does not embrace it, why should we?
MR LITTLE: Because of our particular development of our Australian law that operates within but outside our State and Territory law, our situation is different to England. It may be it is not a great distinction but there is a distinction between our internal municipal laws which the Tojo Maru talks about, which are the English maritime law, and our Australian federal law that operates outside our State and Territory laws. So when we start talking about internal municipal law, we may not have that in the way the United Kingdom has it.
CALLINAN J: It was rejected, was it not, because of its manifest inconvenience of application and its inconsistency?
MR LITTLE: Yes.
CALLINAN J: Which has nothing to do with whether you have a unitary or a federal system.
MR LITTLE: I would have to concede that is the case, your Honour, but if one looked at, for instance, an injury in the Australian High Commission in London, one would say, “Well, what State or Territory law do we apply to that to determine the rights of either a member of the public going in and slipping and falling there or an employee of the Commonwealth of Australia, being injured there?” One would be searching desperately to find some State or Territory law that could be applied to that to provide a limitation on an action there, in our submission.
GLEESON CJ: What do you say is the law that applies if a postal worker from England goes into the Australian High Commission in London to deliver a letter and trips over a negligently placed obstacle?
MR LITTLE: We would say that both United Kingdom law and Australian law would say that the High Commission is Australian territory, so that the injury has occurred in Australia but not within a State or Territory of Australia and the Australian common law would apply.
GUMMOW J: Untouched by any statute.
MR LITTLE: Untouched by statute. Unless there is a statute applying, and I am assuming there is not a statute applying.
GLEESON CJ: It depends what you mean by “applying”. Suppose every Australian State and Territory had some capping. Let me make the example a little harder. Suppose the postal worker went into the New Zealand High Commission and tripped over a negligently placed obstacle in the New Zealand High Commission. Would the law of New Zealand that takes away rights of common law actions for personal injuries and puts people on some kind of pension scheme apply?
MR LITTLE: Yes, it would, your Honour, the same as a crime being committed on those premises, as I understand it, would be punishable according to New Zealand law.
KIRBY J: The High Court in London, in The Strand, just next door, might have different thoughts about this.
CALLINAN J: He would have visited New Zealand in the same way as Mr Zhang was in Renault.
MR LITTLE: He would have no cause of action in New Newland, but he is entitled to sue overseas by the New Zealand legislation.
CALLINAN J: What body of law would apply?
MR LITTLE: New Zealand law, which if they were – if Mr Zhang’s accident had occurred in New Zealand, because the double actionability rule has now been abolished by this Court, one would simply apply New Zealand law and New Zealand law says there is a barrier to him suing in New Zealand, but there is no barrier to him suing elsewhere in the world, and he could sue the Renault companies in Australia, relying on New Zealand law, which only bars an action in New Zealand. So to answer your Honour’s question about the New Zealand High Commission ‑ ‑ ‑
GUMMOW J: That is a fundamental question about what is involved in picking up a foreign law.
MR LITTLE: That, in our submission ‑ ‑ ‑
GUMMOW J: …..theory has been you pick it up. You do not pick it up and say in its initial form it has some territorial limitation to actions in the High Court of New Zealand. That is the classic theory prior to international law, I think ‑ ‑ ‑
MR LITTLE: We would say that that goes ‑ ‑ ‑
GUMMOW J: ‑ ‑ ‑ which you are not complying with, so your submissions are at odds with it.
MR LITTLE: We say that in this present case most of these issues do not arise because there is an identifiable law area and no other law that can be applied to it. There is no conflict, there is no need for a choice.
GLEESON CJ: The law area being the place where the tort was committed?
MR LITTLE: The law applying at the place where the tort was committed.
GLEESON CJ: What was that place? Identify it as a law area.
MR LITTLE: That is a Commonwealth law area as Justice Windeyer, we say, said in Parker because it was Commonwealth servants on a Commonwealth ship. So we say that that becomes a Commonwealth law area, and that is the lex loci delicti. Even if the Court is not prepared to accept that ‑ ‑ ‑
GUMMOW J: Is that covered in your written submission, Mr Little?
MR LITTLE: It is, your Honour, yes.
GUMMOW J: Whereabouts?
MR LITTLE: Paragraph 5.1 and 5.2, your Honour.
GLEESON CJ: Does this mean that there are parts of Australia that are neither States nor Territories?
MR LITTLE: Yes, your Honour.
GLEESON CJ: What are examples of those, apart from naval vessels on the high seas?
MR LITTLE: High Commissions in foreign countries, Antarctica, for instance, which has ACT law applied to the Antarctica, as I understand it.
KIRBY J: That is a Territory. It is the Antarctic Territory of Australia.
MR LITTLE: High Commissions, I would say, in foreign countries and, apart from that, air space and the high seas.
HAYNE J: Is the rule you propound for the high seas dependent on the flag of the vessels?
MR LITTLE: Well, to get the result that is achieved in this case it is, your Honour. If it were a collision between an Australian ship and a Royal Navy ship, for instance, it may be that the matter would be subject to conventions or whatever, of which I am not aware, or it may be that one law would apply for persons claiming in respect of injuries on the Australian ship and another law apply to persons injured on the United Kingdom ship.
GLEESON CJ: There may be a difference between saying that a locality is part of Australia and saying that a locality is a place where the law of Australia applies.
MR LITTLE: That is a distinction we seek to make, your Honour. We say the lex loci delicti is a law area rather than a specific geographical place. That is why my rather crude translation of what has generally been referred to as the ‘dog Latin’, as I understand it, used in the law ‑ ‑ ‑
KIRBY J: Well, your case is very simple. You say Justice Windeyer said that in this case the law area is that of Australia and when you then look to what is the substantive law applicable you say that Pfeiffer and Zhang say you apply the law of the place in the wrong. When you look to that there is no federal statute which applies a limitation period. Limitation periods are not common law phenomena; they are statutory phenomena. The Commonwealth could have enacted a law, it held back from doing so: see the Navigation Act. Therefore, on this particular matter, though not on the general law of negligence, there is no common law of limitation and, therefore, there is nothing that can be raised against your client bringing a proceeding 40 years later.
MR LITTLE: That is exactly our position.
GUMMOW J: How do you square that with section 80 of the Judiciary Act?
MR LITTLE: Because section 80 begins by saying the laws of the Commonwealth are paramount and that includes the common law, that is the law in Australia, together with Commonwealth statutes, and only if they are ‑ ‑ ‑
GUMMOW J: It does not say that; it says:
the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised ‑ ‑ ‑
MR LITTLE: That is so, your Honour, but to enliven section 80 there has to be – the opening words to enliven section 80, your Honour, are “So far as the laws of the Commonwealth are not applicable”.
GUMMOW J: Well, you say there is no applicable Commonwealth law.
MR LITTLE: Yes, I say there is, your Honour. I say the common law ‑ ‑ ‑
GUMMOW J: But you say the Navigation Act does not apply.
MR LITTLE: I say the Navigation Act applies to give a cause of action, but does not apply ‑ ‑ ‑
GUMMOW J: Give a cause of action.
MR LITTLE: Yes, your Honour, section 260.
KIRBY J: Do you say that the Navigation Act covers the field of this particular issue and therefore removes the possibility of the operation in your cause of action of the State or Territory Limitation Act.
MR LITTLE: Yes, your Honour, because section 260 envisages actions for damages for personal injuries for “loss of life or personal injuries”
and that is applied to naval shipping.
GUMMOW J: No, it is talking about fault and several liability ‑ ‑ ‑
HAYNE J: And how is that engaged in light of section 3 or section 6 in the definition of “vessel”’?
MR LITTLE: Section 261A, your Honour, applies those provisions to ships of the Australian Navy as they apply in the case of other ships. So either by virtue of this statute the cause of action lies against the Commonwealth or, alternatively, this is a recognition ‑ ‑ ‑
GUMMOW J: It is not creating a cause of action, is it?
MR LITTLE: Well, it is a recognition by the Parliament that this cause of action lies at common law.
GUMMOW J: It is a modification of it at various stages.
MR LITTLE: Yes, it is a modification of it, your Honour.
GLEESON CJ: What applies is the common law as modified by the statute law in force in the State or Territory in which the court is sitting. That is a right to sue for damages for negligence provided you bring it within a certain time. That is the common law as modified by statutes.
MR LITTLE: With respect, we say that that only applies so far as the laws of the Commonwealth are not applicable or so far as the provisions are insufficient to carry them into effect or to provide adequate remedies or punishment. We say that is not the case here. We say that the common law is adequate to provide remedies and there is no reason to have recourse to section 80 because it is not providing a remedy where the common law does not provide an adequate remedy. It is providing a bar on the Commonwealth’s argument.
GLEESON CJ: What do you say is the meaning of the expression “the laws of the Commonwealth” in section 80?
MR LITTLE: We say that is now the common law and the Constitution and the Navigation Act.
GUMMOW J: You say “the laws of the Commonwealth” includes the common law of Australia?
MR LITTLE: Yes, your Honour.
KIRBY J: I though that was contrary. I think “laws” has been interpreted to mean statutory law.
MR LITTLE: Statutory law. When one looks at section 80, it says the “Common law to govern”. We would say that after Pfeiffer, which talks about a common law in Australia, that that is within the expression, the heading to section 80, which is “Common law to govern”.
GLEESON CJ: But the common law in Australia includes principles of law that existed before Federation.
MR LITTLE: Yes, your Honour.
GLEESON CJ: Are they laws of the Commonwealth?
MR LITTLE: In so far as they are still operational, yes, your Honour.
GUMMOW J: You would have to refer us to authorities saying that “laws of the Commonwealth” means common law. I think you are scratching pretty hard.
MR LITTLE: Section 80 itself, your Honour, says that “the common law in Australia as modified by the Constitution”.
GUMMOW J: Exactly. Justice Gaudron explained all this in some detail in Mewett, did she not?
MR LITTLE: She did, your Honour, and Mewett is a case that we rely on strongly because Justice Gaudron showed some reticence about the need for the imposition of an inflation law in Mewett.
GUMMOW J: She did, but she certainly was not construing section 80 in the way you are.
GLEESON CJ: I thought there had been more recent cases in which the expression “the laws of the Commonwealth” has been construed. Do you say that the principle to be enforceable as a contract an agreement must have consideration, is a law of the Commonwealth?
MR LITTLE: Yes, your Honour, subject to modification by State or Territory legislation, or indeed, Federal legislation. But, in fact, her Honour Justice Gaudron, in Mewett, talks about Australian law applying to the law of contract. She says that the cases are not based in contract but if one looked at a contractual basis for the claims in Mewett, then one would apply the Australian law of contract your Honour says.
HAYNE J: But the reading you propound can be expressed as “So far as the common law is not applicable the common law as modified does”.
MR LITTLE: Yes, your Honour.
HAYNE J: Yes, I see.
MR LITTLE: But we say that the whole body of law, which is the common law in Australia together with the Navigation Act, covers the field and it is not ‑ ‑ ‑
GLEESON CJ: “Covering the field” is a concept that is relevant if you are talking about section 109 and inconsistency, but what is its relevance in a problem of the kind we are addressing?
MR LITTLE: Because there is then no room to pick up – because section 80 does not operate.
GLEESON CJ: Yes, you are using this in connection with section 80.
MR LITTLE: Yes, your Honour.
GLEESON CJ: But your entire argument on section 80 depends on reading the words “laws of the Commonwealth” as including the common law.
MR LITTLE: Or the Navigation Act, but the Navigation Act recognises the common law right to sue.
KIRBY J: There is no problem with the Navigation Act being a law of the Commonwealth. The problem is the suggestion that “laws of the Commonwealth” includes the common law. There are so many difficulties of making that expression stretch so far that I just think it is an impossible argument and I thought there was authority to the contrary, that laws in section 80 in that respect mean statute.
MR LITTLE: There have been cases determining that and all I can point to, to the contrary, is Justice Gaudron when she talks about if there was contract law ‑ ‑ ‑
GUMMOW J: Where does her Honour say that?
MR LITTLE: I am just looking for that, your Honour.
KIRBY J: This is in Mewett, is it?
MR LITTLE: This is in Mewett, your Honour, yes.
GUMMOW J: You might be lucky she is not here.
MR LITTLE: It is Mewett page 526.
GLEESON CJ: Where she was concerned to distinguish between a national law and a federal law.
MR LITTLE: Yes, your Honour – well, the passage we refer to, your Honour, starts at about point 6 and goes over to the top of the following page.
GLEESON CJ: Do you notice the way she uses the word “in”, “common law in Australia”, not “of Victoria”?
MR LITTLE: Yes, your Honour. Perhaps the next page, your Honour, at 527, the whole of that page.
GUMMOW J: I think you have to really begin at 525 actually. Perhaps if you read 524. In any event, 525 point 5.
MR LITTLE: Point 5, your Honour, yes, “So long as s 80 referred to”, is that the passage to which your Honour is referring?
GUMMOW J: Yes.
GLEESON CJ: You say that the Navigation Act is applicable to this case, do you?
KIRBY J: Did you tell us earlier that it was the Navigation Act that reserved your client’s right to sue?
MR LITTLE: Well, we would say that the Navigation Act has relevance in this case.
GLEESON CJ: Yes, but I am using the words of section 80, which begins by saying, “So far as the laws of the Commonwealth are not applicable”. Do you say the Navigation Act is a law of the Commonwealth which is applicable?
MR LITTLE: Yes, your Honour.
KIRBY J: What is the section of the Navigation Act that you rely on, or sections?
MR LITTLE: Well, we can only rely on section 260 ‑ ‑ ‑
CALLINAN J: And 261A you want too, do you not?
MR LITTLE: ‑ ‑ ‑ and 261A to apply it to naval ships.
CALLINAN J: Are not sections 259 and 261 only concerned with apportionment of liability between ships, or shipowners? They do not say anything about causes of action against shipowners. They are only concerned with division of liability, are they not?
MR LITTLE: They are, your Honour, but it is an implied recognition, in our submission, by the Federal Parliament of the existence of that cause of action.
GLEESON CJ: You sound to me as though you are working up to a section 109 argument, along the lines that the cause of action on which you rely follows from the Navigation Act, that that is a law of Commonwealth, it is applicable to this case, and that it seems to be an implied negation in the Navigation Act of State laws.
MR LITTLE: We say, your Honour, that the common law provides our cause of action. That cause of action is modified to the extent that the Navigation Act operates on that cause of action.
GLEESON CJ: And not otherwise.
MR LITTLE: And not otherwise. Once the common law cause of action is modified by the Navigation Act, there is no room for the opening words – or having regard to the opening words of section 80, there is no room then to go searching around for a State or Territory law that further modifies it.
CALLINAN J: But the best section for you of the Act is 261, is it not, which certainly seems to assume ‑ ‑ ‑
MR LITTLE: Yes:
In addition to any other remedy provided by law, the persons –
It assumes another body of law other than that contained in the statute itself.
CALLINAN J: It assumes a right to recover damages because it speaks about the division of the damages.
MR LITTLE: Yes, your Honour. As we say, Justice Gaudron spends quite some time in Mewett in dealing with the law to be applied to contract in the passage that, particularly to deal with your Honour Justice Kirby’s observation, is at page 525, about point 6 where her Honour starts:
However, s 80 now directs the application of “the common law in Australia”.
Her Honour returns to that question at 526, point 6, dealing both with the law of tort and contract law. Her Honour says that:
it may well be that it is Australian contract law that determines liability in the claims based on contract.
Which is why I answered your Honour the Chief Justice’s question about the need for consideration in the way I did based on that proposition.
GLEESON CJ: Coming back to the Navigation Act in sections 260 and 261, at the moment I can understand why those provisions would be applicable if, for example, there was some claim for contribution between two defendants in relation to an incident of this kind, but how do they apply to a claim for damages for personal injury by an injured person? I can see how they apply in respect of it in relation to rights of contribution, for example, but how do they apply to the plaintiff’s claim?
MR LITTLE: They are a recognition that a plaintiff has an entitlement to claim in the circumstances contemplated by the Navigation Act.
GLEESON CJ: Well, they are an assumption of that.
MR LITTLE: They are an assumption of that right, but they are a recognition of the fact that there is a right of common law.
GLEESON CJ: They are a recognition of the fact that there may be a right.
MR LITTLE: If there were not a right, one would think they would not need to legislate about it.
GLEESON CJ: Let me give you an example of a case where I gather everybody agrees there would be no right, if this occurred in warlike operations, in combat.
MR LITTLE: Yes. The Navigation Act could not apply then because the common law is subject to that immunity.
GLEESON CJ: The Navigation Act would not apply there because the assumption on which section 261 is based would be invalidated.
MR LITTLE: That is so, your Honour.
GLEESON CJ: It is not 261 that creates the right to sue.
MR LITTLE: No, it is a recognition of the right, in our submission, your Honour, and it says what is to occur when that right is exercised, so far as defendants are concerned, and it applies it to Navy ships, and it specifically says – to deal with your Honour’s question concerning times of war – it is not intended to remove the immunity in time of war by looking at section 260(2). It is not to deprive a defence which independently of that section they may have had.
CALLINAN J: I must say I have a problem in seeing how it really helps you because, as the Chief Justice has said, it recognises the possibility of an action, but it does not confer one.
MR LITTLE: No, it does not confer one.
CALLINAN J: If and when, and it may be a big if, damages are recovered for personal injuries for negligence then these provisions with respect to division, or apportionment, will apply, but that is a long way away from saying that there must always be or that there must be a right of action.
MR LITTLE: All we say about the Navigation Act is that it has affected a modification of the common law. We say that our rights exist in the common law and the Commonwealth Parliament has acted to modify those rights. It said that nothing in this Navigation Act will deprive a person of a defence they have at common law or on another basis. It is also said what happens between defendants in the event that a plaintiff succeeds in an action. So that it is operated on the common law, but it having operated and modified the common law to the extent that it has, there is no room, in our submission, for the operation of section 80 because it cannot be said the laws of the Commonwealth are not applicable. They are applicable because this is an area that the Commonwealth is entitled to legislate in, clearly, and has legislated in.
GLEESON CJ: That sounds like a negative implication. It sounds like a proposition that the Navigation Act means that except to the extent to which this Act provides, there will be no room for any other statutory modification of the common law.
MR LITTLE: We do not go that far, your Honour. We say that it forces attention back on the circumstances for the application of section 80, namely, so far as the laws of the Commonwealth are not applicable, and we say they are applicable, or so far as their provisions are insufficient to carry them into effect or to provide adequate remedies, et cetera, and we say, well, those qualifications are not fulfilled in this case. They are adequate.
The common law, in its modified form by the Navigation Act, is adequate to provide remedies and there are procedures available to carry those remedies into effect. There is no reason to have resort to any State or Territory law that has, one would think, no sovereign interest whatsoever in what happens between two Commonwealth ships outside any territorial waters.
One can readily see that where a Federal Court action is heard in a Territory where the events occurred, that that State or Territory would have a considerable interest because of its territorial control of the place where the events occurred and that its laws may very well be very reasonably applicable to the case.
But, in a case like this, one has to search far and wide to try and find some State or Territory law to impinge on what we would say is a right otherwise given by the common law, and we say one cannot totally ignore the heading of the section, the “Common law to govern”. We say that the inquiry mandated by section 80 is not to search the length and breadth of the legislation in the States and Territories, the Commonwealth of Australia, to find some barrier to put in the way of a case that at common law has no such barrier, nor has such a barrier been imposed by the Commonwealth, although they have imposed it in the case of non‑Naval ships.
GLEESON CJ: Does this mean that if a case of contributory negligence is made out against your client, it is a complete bar?
MR LITTLE: That may well follow, your Honour. I would like to reserve our position on that, your Honour, but that may well be the case, although I suppose we would say that in those circumstances the Commonwealth law would not provide adequate remedies and we would wish to pick up section 80, but it may well be that if we had to pick up section 80, we had to pick up the whole of the laws of a State, including their limitation laws, if we wanted to rely on that.
GUMMOW J: Now, assume that the situation is reached where one has to look at the law in force in the ACT. Which of the combinations of Limitation Acts do you say is the right one?
MR LITTLE: Unfortunately, like Mr Solicitor for the Commonwealth, I am not sure of the saving provisions, if there are any, in the subsequent ACT Act, whether it saves the Imperial Act for events occurring before its repeal.
GUMMOW J: Well, the relevant legislation is attached to some of the Commonwealth materials, is it not? Really, you are here to answer questions ‑ ‑ ‑
MR LITTLE: Yes, I appreciate that, your Honour.
GUMMOW J: We expect assistance. The first question is, by what law of the Commonwealth was the Limitation Act 1623 ever in force in the ACT? That is the first question. The second question, what are the consequences of its repeal in its operation in the ACT by the 1985 Act upon a cause of action which seems to have accrued in 1964? The third question is, how is it suggested by anybody that the Limitation Act (NSW) is the applicable one?
MR LITTLE: We have taken the position that these are the Commonwealth’s contentions and it was for them to ‑ ‑ ‑
GUMMOW J: Yes, I understand that.
GLEESON CJ: Is the attraction of the New South Wales Act, if by some conceivable way that applied, the capacity to give discretionary relief against the operation of the Act?
KIRBY J: The suggestion of the New South Wales Act was not yours. It was the Commonwealth’s, was it not?
MR LITTLE: It was the Commonwealth’s.
KIRBY J: They are hardly likely to be trying to provide discretionary relief to you.
GLEESON CJ: Apart from the possibility that there is no Limitation Act at all that applies, what kind of Limitation Act would not bar an action in 2003 in respect of an accident that occurred in 1964?
MR LITTLE: Possibly the Limitation Act (ACT) would be more beneficial than the New South Wales Act because the New South Wales Act has three years, I think, in latent diseases only in which to bring an application for extension of time and by that time would have expired in most of the circumstances, we would imagine.
GLEESON CJ: Even if it does not particularly matter to you or to your opponents, the questions are framed in such a way that we have to identify the relevant limitation period unless we conclude that there is none. What are your submissions on that?
MR LITTLE: These cases, we think would probably be out of time in New South Wales unless, for instance, in Mr Blunden’s case, it was held that the filing of a statement of claim and the seeking of leave under the ACT Act be treated as an application under whatever is the appropriate ‑ ‑ ‑
GLEESON CJ: It may not matter to Mr Blunden, but the answer that we give to these questions may matter a good deal to other people.
MR LITTLE: Yes, your Honour. Mr Blunden, I am sure, would be out of time now, if he made an application under the New South Wales Act. So what we are saying is it would be unless the application under the ACT Act were to be treated as if it had been an application under the New South Wales Act, we think Mr Blunden would probably be out of time under the New South Wales ‑ ‑ ‑
HEYDON J: Your best bet is section 36 of the ACT Act, is it not? That seems to be an unlimited power ‑ ‑ ‑
MR LITTLE: Yes, it is. It has significant differences from the New South Wales Act, but it is not fettered ‑ ‑ ‑
GUMMOW J: This is on page 9 of the Commonwealth’s materials.
MR LITTLE: Yes. It is not fettered the way the New South Wales Act is. The Navigation Act, of course, which contains its own limitation, is an absolutely unfettered discretion, I think, just on just and reasonable grounds, without setting out the criteria that must be taken into account.
GUMMOW J: Section 35 of the ACT Act applies that division to actions:
that accrued before or after the commencement of this Act ‑ ‑ ‑
MR LITTLE: Yes. So it is presumably the appropriate statute for the ACT that would be applicable, if anyone ‑ ‑ ‑
HAYNE J: Now, there is not a whisper of any of this in the pleadings, is there? Not a whisper of any suggestion of extension. If you go to page 44 of the case stated book you see the plea in answer to your claim, which is a plea, in paragraphs 7 and 8, of various limitation provisions, and the reply that is put on at page 46 of the application book denies that the action is statute‑barred, because it occurred in international waters.
GUMMOW J: There is no pleading in the alternative, to try to take advantage of section 36.
HAYNE J: At least for myself, I am much minded to write an advisory opinion about what might happen if such an application were to be made.
MR LITTLE: Our application was originally based on section 36. That was the initial matter before the trial judge, I think.
GUMMOW J: Where do we see that? I do not think anyone let me into the secret.
MR LITTLE: No, it does not appear in the stated case, your Honour.
HAYNE J: It does not seem to leap from the pages of pages 38 and following, which is the initiating process.
GLEESON CJ: Are you telling us that there already has been an application under section 36?
MR LITTLE: Yes, your Honour.
GLEESON CJ: What happened to it?
MR LITTLE: That was the application declined in the ACT Supreme Court and then that was the appeal to the Federal Court that was ‑ the Federal Court allowed the appeal. Their order was not clear as to whether they had granted leave under the ACT legislation or whether they had simply set aside the decision of the trial judge and sent the matter back for retrial. It was from that situation that the stated case arose.
KIRBY J: Well, do we not need to know all this? It is part of the history.
GUMMOW J: Was there a special leave application?
MR LITTLE: There was a special leave application.
GLEESON CJ: Yes, that is right. I have in the back of my mind ‑ ‑ ‑
MR LITTLE: Yes, your Honour sent us back to the Federal Court to try and find out what they had said ‑ ‑ ‑
HAYNE J: What they meant to say.
MR LITTLE: What they meant to say, yes, because they gave no reasons if they had granted leave. We had to concede that. But the special leave application was not pursued and then the stated case was ultimately produced instead of – the Commonwealth brought a special leave application.
GUMMOW J: By consent we can supplement the stated case, can we not?
MR LITTLE: That is so, your Honour.
KIRBY J: I am beginning to feel that the ship I am on is lost at sea. I do not know where I am.
GLEESON CJ: I think you may be assuming that we have better memories than we have, Mr Little. Until you started saying things about section 36 a few minutes ago, I had forgotten ever having looked at this matter before.
MR LITTLE: Yes, I think that the fact ‑ ‑ ‑
KIRBY J: I do not think I was in the special leave application ‑ ‑ ‑
MR LITTLE: Your Honour was not.
KIRBY J: ‑ ‑ ‑ so I do not remember it at all, because I never had anything to do with it.
MR LITTLE: It was your Honour the Chief Justice and Justice Hayne.
KIRBY J: You think we have so much time to look at every special leave book for cases we do not sit in?
MR LITTLE: I know your Honours have very little time ‑ ‑ ‑
KIRBY J: It is a pleasure that we spare ourselves.
MR LITTLE: I see your Honours’ lists and I see the statistics. We know you have very little time.
GLEESON CJ: Maybe you and your opponent should look at the question of adding this material to the stated case. If you produce an agreement as to what you would jointly propose should be added, then Justice Gummow can give consideration to amending the stated case.
MR LITTLE: Yes.
GUMMOW J: The sooner the better.
KIRBY J: Do I understand that before us your primary position is there is no statute of limitation, there is no barrier and therefore you can sail on without any time problem?
MR LITTLE: That is so.
KIRBY J: But if that is held against you, then maybe that is all we have to decide in these proceedings, is that a correct view of the applicable law in the case? If it is not and section 80 incorporates the Australian Capital Territory law, then you are back to wherever you were at the end of the Federal Court proceedings and the proceedings in this Court.
MR LITTLE: Yes, exactly.
KIRBY J: So we are sort of little interlocutory interlude, where you have come to us with a relatively confined question, is there no applicable limitation law as you assert or is there an applicable limitation law as the Commonwealth, in a rather confused way, asserts? It seems to have three irons in the fire: the Imperial Act, the New South Wales Act and the ACT Act, and I do not know what the Commonwealth’s case really is. Mr Solicitor did not really ever make that clear. He seems to be plumping for the ACT Act.
MR LITTLE: This present application for case stated seemed to be provoked by applications by solicitors that I represent to remove two cases from the Victorian Supreme Court into this Court to determine these issues and as to whether Victorian law had anything to say about this in the Victorian cases.
GLEESON CJ: I gather from what you said a moment ago – correct me if I am wrong – that in the case of Mr Blunden against the Commonwealth the very first thing that ever happened was that Mr Blunden made an application under section 36 of the limitation legislation of the ACT.
MR LITTLE: He filed his statement of claim and made an application.
GLEESON CJ: Yes.
MR LITTLE: On filing or shortly thereafter, but he lost that.
KIRBY J: I could understand how people advising a plaintiff like Mr Blunden would say, “Well, if you are bound by the ACT Act, the sooner you get your application in after knowing of it the better and, therefore, make that application, but I advise you I don’t think there’s any limitation that applies”. Is that what we are here to decide?
MR LITTLE: Well, yes, it is, your Honour, but how it occurred was at the time of Mr Blunden’s application the law as laid down by this Court seemed to be that statutes of limitation were matters for the forum hearing the case rather than matters for the lex loci delicti. Between the dismissal of Mr Blunden’s application and the appeal before the Federal Court Pfeiffer v Rogerson was determined saying that the common law position about Limitation Acts was the same as the Choice of Law (Limitation) Act and the view was taken by ourselves at that time that if the common law position was the same as in that statute then no limitation law would apply to this case.
That application was made – and an application was made by ourselves to the Federal Court to adjourn the hearing to give notices to the Attorneys in case it raised a constitutional issue or a matter arising under the Constitution. The Federal Court declined that adjournment and determined the case on the merits and said that the trial judge had not taken sufficient account of the criteria that he was obliged to take into account and allowed the appeal.
GLEESON CJ: They allowed the appeal, but did not do anything else.
MR LITTLE: But did not say what consequential results that had, although we had sought an order granting leave as our order if the appeal succeeded.
KIRBY J: But the Federal Court did set aside the orders of the trial judge?
MR LITTLE: They set aside the orders of the trial judge at first instance but did not make the consequential order.
KIRBY J: The only consequential order they would have had to do was to make the order that it be returned to the ACT Supreme Court to be dealt with ‑ ‑ ‑
GLEESON CJ: No, they could have extended the time themselves.
KIRBY J: But they declined that.
MR LITTLE: We asked them to do that, your Honour.
GLEESON CJ: No, they did not decline it. They did not say whether they were willing to extend time themselves or not.
MR LITTLE: No, they did not. They just said the appeal is allowed and the Commonwealth will pay costs and our notice of appeal asked for an order setting aside the order of Judge Crispin and in its place making an order granting us leave.
GLEESON CJ: That is leave to proceed.
MR LITTLE: Leave to proceed, but as his Honour the Chief Justice ‑ ‑ ‑
KIRBY J: But that is incompatible with what you are arguing here, which is that you do not need any leave of anybody and all you are entitled to do is sail on without any limitation period whatever.
MR LITTLE: That is so.
KIRBY J: Is that a nice limited point that can be tempered to this Court?
MR LITTLE: It is a nice simple point, your Honour.
KIRBY J: But it really turns on section 80, as Justice Gummow pointed out, and how that is interpreted in the facts of this case. If you win on that then you can forget the ACT, forget the Federal Court, you can forget everything else and just go on with your case.
MR LITTLE: That is so. In fact, the Chief Justice invited me to take that step regardless of whether the Commonwealth pursued their application for special leave but I did not have the courage, I am afraid, to do that, your Honour. I preferred that we had this Court’s determination before we brought actions in all the separate jurisdictions involving this issue.
KIRBY J: There are a number of cases riding on this and in the background is does it depend on the Victorian law of limitations or does it depend on some other State if somebody brings a proceeding there?
MR LITTLE: Which are not being fully argued in this case.
KIRBY J: But if your thesis is correct that there is no applicable limitation law, you can forget about all the applicable limitation laws and just sail ahead without any limitation impediment.
MR LITTLE: That is so, your Honour.
GUMMOW J: You had better look at page 10 of the case book. Are you saying we only need to answer question (c) and we should be unwilling to answer (a) and (b) in the absence of submissions?
MR LITTLE: We would say that is the case, particularly as the other two cases that removal was sought of, raised a question of the Victorian Act.
GUMMOW J: Yes.
GLEESON CJ: You mean if we answered question (c) “No”, that would be sufficient for your purposes?
MR LITTLE: Yes, your Honour.
GLEESON CJ: And of course if we answered it “Yes”, that would be even more sufficient for your purposes.
KIRBY J: But is there not a problem? You have told us of the Victorian legislation. These questions refer to the laws of the ACT, the Imperial law and the New South Wales law but do not refer to the Victorian law. At least if you answer these questions, there is a theoretical possibility that the case commenced in Victoria, depending of course on how the court reasons the matter ‑ ‑ ‑
MR LITTLE: May attract Victorian law. That is if it is a forum. If the forum argument is applied rather than “closest connection” argument if the Commonwealth succeeds in ‑ ‑ ‑
KIRBY J: Yes, but if the forum argument is applied then the ACT law is applied in this particular case.
MR LITTLE: In Blunden’s Case but that will not any effect on the other two cases.
KIRBY J: Yes, the reasons would make that clear.
MR LITTLE: We would say that applying the forum law would have the effect of having multiple different legal regimes being applied to cases depending on where throughout the Commonwealth of Australia the cases are brought or where the Court sits if the Federal Court is ‑ ‑ ‑
KIRBY J: What has happened to the cases in Victoria?
MR LITTLE: I think they are simply adjourned awaiting the decision in this case. The applications for removal are adjourned, I think.
GUMMOW J: So is your position that, if it came to it and it was necessary to find some statutory regime, that it should be the forum.
MR LITTLE: No.
GUMMOW J: Well, what do you say?
MR LITTLE: We say the inappropriateness of that, given Pfeiffer and Zhang, indicates that it can only really be the lex causae.
GUMMOW J: Which is?
MR LITTLE: That takes us back to our preliminary submission that it is in an Australian law area; it is Australian law with no Limitation Act.
GUMMOW J: The question I am asking you is, assume that is wrong. Do you have any fallback submission? That is all I am trying to get at. If you do not, you do not.
HEYDON J: It does not arise for Mr Blunden, because the Commonwealth’s position is identical with your second-best position for Mr Blunden, namely Canberra, the ACT.
MR LITTLE: Yes, that is probably our second-best position, your Honour, yes.
HEYDON J: You have to concentrate on Mr Blunden’s position.
MR LITTLE: Yes, but to do that they get there by a closest connection test, which, our submissions are, have been discarded as recently as Gutnick in this Court.
KIRBY J: Yes, but the other way to get there, in the snakes and ladders that are presented to us, is by way of section 80, which appears in its terms, at least on one reading, to say in these cases you apply any statute law of the forum. That is not inconsistent with what this Court said in Pfeiffer or in Zhang, because there the Court was talking of the common law. This is by force of the statute of the Commonwealth.
MR LITTLE: It would then go back to the earlier cases. If the case had been commenced in this Court in its original jurisdiction, it would be influenced by where the Court sat, which, we understand, this Court has tried to get over that proposition.
KIRBY J: We have to obey the valid legislation of the Federal Parliament like everyone else.
MR LITTLE: We say that is why State or Territory laws are not applicable in the circumstances of this case, because it would have the law changing depending on where the Court sat.
KIRBY J: But why is it inapplicable? It may be inconvenient, it may be unjust, it may be a nuisance, but why is it inapplicable?
MR LITTLE: Because this Court has carefully developed its choice of law rules in Pfeiffer ‑ ‑ ‑
KIRBY J: Yes, but they are common law rules. They cannot stand against a valid federal statutory enactment.
MR LITTLE: No, they cannot.
KIRBY J: This is just rudimentary stuff.
MR LITTLE: Well, I understood this Court to say they were mandated by the Constitution.
KIRBY J: I do not think so.
GLEESON CJ: ……very careful there.
MR LITTLE: I know there is an argument about the constitutionality of choice of law rules.
GLEESON CJ: There is a problem about constitutionalising choice of law rules. They can only amended by a referendum.
MR LITTLE: Yes.
KIRBY J: And apart from everything else, section 118 refers only to States and not to Territories and therefore you would only have a hotch‑potch of constitutionalised choice of law rules. So even those who thought that the choice of law rule of the common law was informed by the Constitution, which denies treating the States as separate nations, but it did not provide the whole regime.
MR LITTLE: Yes, I cannot say any more on section 80 than I have already said. My junior has just given me a copy of the Imperial Acts Application Act 1986 (ACT), which does seem to preserve some provisions of the earlier Act, but I think we need to give your Honours more accurate and detailed information on that.
KIRBY J: Would that have been in force at the time?
MR LITTLE: It would not have been in force – well, the Imperial Act would have been in force ‑ ‑ ‑
KIRBY J: Well, you have to trace it through, because the ACT was originally part of New South Wales.
MR LITTLE: That is so, and had ordinances and not statutes, yes.
KIRBY J: Certain statutes were incorporated into the ACT on settlement.
MR LITTLE: I think we should get together to provide your Honours with the details of that legislation and the history of it.
KIRBY J: Then it is a question of working out whether the Limitation Act applies as at the date – or the time begins to run as at the date of the wrong, according to its terms, or whether the Court’s duty is to apply the law applicable at the time of the hearing of the case which, on one view, section 80 seems to be saying.
MR LITTLE: It is only a first instance decision, your Honour, but dealing with section 80, section 80 has been said not to - section 80 or section 79, I must be careful about this – enlarge the reach of State law so that where the States do not have any power to legislate over the high seas we would say that to apply a State law in bar or Territory law in bar of the plaintiff’s claim would be to enlarge the reach of the State law.
KIRBY J: That may be a better argument about inapplicability.
MR LITTLE: Yes, your Honour. That is Young’s. We have referred to it in our submissions, your Honour. It is Re Young’s. It is that section 79 is said to not enlarge the reach of State law. That is Re Young’s Horsham Garage Pty Limited (in Liq) [1969] VR 977 and (1967) 17 FLR 410. I think, from memory, it is a case involving Corporations Law, your Honour, and whether a requirement under the Corporations Law of a State superseded the Commonwealth regime and it was held that the judge in the course of dealing with that application, as we understand it, said that section 79 does not enlarge the reach of State law.
GUMMOW J: There is debate about that, Mr Little, in plenty of cases.
MR LITTLE: There is, your Honour. That is only a first instance decision.
GUMMOW J: Of course it alters the reach of the State law because it makes it applicable to the Commonwealth, apart from other things.
MR LITTLE: That is section 79, in any event, and this Court seems more concerned with section 80.
GLEESON CJ: Mr Little, even if we ultimately arrived at the ACT limitation legislation in Mr Blunden’s case, a great deal would turn for other cases on the route that we took to arrive at that conclusion.
MR LITTLE: Yes, your Honour.
GLEESON CJ: If we arrived at it via section 80, the consequence would be, presumably, that the Victorian actions would be governed by the Victorian limitations statute and any actions in Western Australia would be governed by the Western Australian limitations statute.
MR LITTLE: That is so, your Honour.
GLEESON CJ: If, on the other hand, we arrived at it by the route proposed by the Commonwealth in argument in this case the ACT statute would apply to all these actions, wherever commenced. Is that right?
MR LITTLE: That is so, your Honour. There is an attraction, of course, in the Commonwealth’s argument to that extent but it really, with respect, when one looks at the closest connection, to find the connection is that the Naval Board is constituted in Canberra, saying therefore that is the closest connection with the tort just, in our submission, is far too slender a basis. Justice Gaudron in Mewett took a contrary view about the closest connection with Messrs Rock and Brandon and felt that the port of departure was a much more important proposition than the others.
Your Honours have discarded this test, for obvious reasons, in the other two parts of the triangle as Mr Solicitor for the Commonwealth said and it would be going backwards, in our submission, to apply it in these circumstances where we submit it is unnecessary to apply any State ‑ ‑ ‑
GLEESON CJ: I presume the lack of attraction in reaching a conclusion via section 80 from the Commonwealth’s point of view is what they deprecate as forum shopping, in one sense, section 80 being an invitation to forum shopping.
MR LITTLE: Exactly. I mean, there may, so far as I know, be legislation in the States or Territories barring these actions totally now. It may be an absolute bar as there was in New South Wales in other States or Territories after 30 years. That has been removed in the case of blatant diseases. There was certainly an absolute bar in New South Wales.
GLEESON CJ: Some people take the view that forum shopping promotes healthy competition ‑ ‑ ‑
MR LITTLE: I see that in the Mobil Oil Case. Justice Callinan did not seem to think so. He wondered how much people could reach into the pockets of the citizens of another State.
GLEESON CJ: But whatever you think of forum shopping, section 80 seems to be a provision that promotes it.
MR LITTLE: Where applicable, your Honour. Thank you.
GLEESON CJ: Thank you, Mr Little. Mr Solicitor for New South Wales.
MR SEXTON: If the Court pleases. Your Honours, given the course of the oral argument, we do not wish to add to our written submissions. Can I simply provide one reference ‑ ‑ ‑
GUMMOW J: You have had some comforting observations about ‑ ‑ ‑
MR SEXTON: There were some observations, your Honour, that is true. Justice Kirby raised the question of the legislation in various States that said that limitation provisions were to be considered substantive and not procedural. It is referred to, your Honour, in paragraph 2.1 of our written submissions, and the legislation is listed in Pfeiffer at footnote (156).
KIRBY J: Was that common legislation throughout the Commonwealth and all the States and Territories have enacted it?
MR SEXTON: Yes, your Honour.
KIRBY J: It is a rather short legislation, as I remember it, and just says that limitations will be treated as substantive.
MR SEXTON: Yes, but in a sense it was overtaken by Pfeiffer.
GUMMOW J: It is now section 56 of the Limitation Act (ACT) which is at page 10 of the Commonwealth materials.
MR SEXTON: Unless there is any other matters ‑ ‑ ‑
KIRBY J: You say it was overtaken by Pfeiffer but the legislation is written law and Pfeiffer is common law.
MR SEXTON: When I say it was overtaken, the common law now coincides with the legislation, your Honour. There may be a question as to ‑ ‑ ‑
GUMMOW J: The legislation was unnecessary.
MR SEXTON: Ultimately, your Honour.
GUMMOW J: It is now revealed to be, though it seemed very necessary at the time.
KIRBY J: There is a lot that has been revealed in the course of this litigation.
MR SEXTON: Unless there is any other matters, your Honours.
GLEESON CJ: Thank you, Mr Solicitor. Mr Solicitor for South Australia.
MR KOURAKIS: If the Court pleases, I have just five brief submissions to make. Firstly, if it is the case that the application of section 80 results in the application of the law of the forum, then that will apply equally where the litigation is brought in this Court from the Federal Court, with the added difficulty then that there will have to be decisions or rules determining where those courts are sitting, depending on where they sit at different points in the proceedings. The second submission I make ‑ ‑ ‑
GUMMOW J: I do not understand the first submission you make.
MR KOURAKIS: If the Court pleases, the question that his Honour Justice Windeyer addressed in Parker’s Case and solved by obtaining the agreement, in effect, of the parties to the proposition that the Court, that is, the High Court, could be considered to have sat in Melbourne, although judgment was delivered in Sydney, will arise if the Court sits at different places to hear and determine the proceedings in identifying the law of the forum that will apply.
GUMMOW J: They are talking about common law rules, common law rules including the “private international law rules” and if there is a common law rule which is not modified in the forum, then the common law rule requires you to find the proper law of the tort. It will not produce a different answer, will it?
MR KOURAKIS: If that is so, but if section 80 ‑ ‑ ‑
GUMMOW J: And that is what Mr Bennett is after.
MR KOURAKIS: Yes, but rather than simply using section 80 as applying – as a choice of rule in itself directly the law of the forum. If it still incorporates a rule which allows one to find the proper law of the tort, the problem which I have just referred to will not arise.
GUMMOW J: It has been settled since Musgrave’s Case these provisions, when it talks about common law and so on, pick up private international law, common law, I think. If Mr Solicitor wants to supplement that or give it a tweak to fill in the third side of his triangle.
MR KOURAKIS: Yes. Your Honours, the next submission I make is that the same question would arise if this matter was in Admiralty jurisdiction, because in the end that is federal jurisdiction, which would take us back to section 80, unless, of course, one was to say ‑ ‑ ‑
KIRBY J: That is 8 of the Admiralty Act?
MR KOURAKIS: If it was an action under ‑ ‑ ‑
KIRBY J: Back to section 80, did you say?
MR KOURAKIS: Section 80, yes, because it is an action in federal jurisdiction, and so one would have the same question that would arise. Unless one were to say that an action brought in Admiralty then does involve the application directly of Australian common law as it is modified or applied in maritime actions, but if that is the case ‑ ‑ ‑
GUMMOW J: There are limitation periods in the Admiralty Act, are there not?
MR KOURAKIS: Yes, not universally applying. Although an action might be brought under the Admiralty Act even with respect to an incident which occurred before it came into being, the limitation period might only apply prospectively.
GUMMOW J: Is that right? Well, wait a minute.
MR KOURAKIS: Your Honours, if it is suggested ‑ ‑ ‑
KIRBY J: We have not really been taken to the Admiralty Act. I know it is referred to in the written submissions, but if there are any provisions in the Admiralty Act save for the one about federal jurisdiction I really think we ought to have reference to it.
MR KOURAKIS: If your Honour pleases, for the purpose of the submission I make, it is simply the case that actions such as this can be brought in that jurisdiction under that Act as a personal action.
KIRBY J: The fact remains that they were not so brought.
MR KOURAKIS: No.
KIRBY J: They have been brought in the Australian Capital Territory Supreme Court.
MR KOURAKIS: My submission is simply that the same result should pertain, whether they are brought specifically in Admiralty and if necessary that jurisdiction is expressly invoked as would pertain with respect to an action brought in a State court relying on a common law cause of action.
KIRBY J: Why would a State or Territory, in this case the ACT, limitation law be applicable to an event that happened on the high seas?
MR KOURAKIS: Only through, in my submission, section 80 if it so operates.
KIRBY J: Yes, but section 80 contains a qualification, and it says that it only applies “so far as it is applicable”.
MR KOURAKIS: Yes.
KIRBY J: Now, why - and not inconsistent with the Constitution which contains notions of territoriality of the States and of the Territories with an extendable notion of extraterritoriality where it is sufficiently connected, but why would a State or Territory limitation statute be applicable to an event that happened on the high seas?
MR KOURAKIS: Only if it is picked up either by section 80 or the choice of law rules that apply in section 80.
KIRBY J: I know in private international law matters you go round and round in circles, but you keep talking about section 80, that section 80 has a let out, a qualification, an exception; still has to be applicable.
MR KOURAKIS: Yes.
KIRBY J: And generally the laws made by a legislature are applicable to events that happen in or in relation to their territory. Now, I am just asking the question, which apparently Justice Menhennitt, who was a good judge, found the difficulty for section 79. Why would a limitation period in a limitation statute be applicable to something that has happened hundreds of miles away from that Territory?
GLEESON CJ: Or in Queanbeyan. It would not make any difference, would it, whether the event occurred in Queanbeyan or on the high seas or in Iceland?
MR KOURAKIS: In terms of the applicability of the statute on its face?
GLEESON CJ: Yes.
MR KOURAKIS: If the Court pleases, that is probably so.
HAYNE J: The relevant territorial nexus is in the claim. The claim is brought to the courts of the State. True?
MR KOURAKIS: Yes.
HAYNE J: Yes.
MR KOURAKIS: And one can still go the statute to construe it, and it might well be that on its face there is a construction which limits it to actions which arise within that Territory. So the question might still arise. Your Honour, the question which sections 79 and 80, in my submission, do not answer directly is just where the rules determining what is applicable or not come from. They might be an incorporation of the choice of law rules or they might involve simply an application of constitutional limitations, and the question whether the law applies on its face and if it purports to apply to a certain situation, whether it does so validly given a State’s power to apply extraterritorial legislation.
GUMMOW J: Mr Bennett’s submission would be exactly the same if this was a unitary state and we were just talking about the common law in a unitary state. We have all these federal complications, I know, but, at the end of the day, that is what he is saying. If the ACT were an independent country of its own with common law, this is what would happen.
MR KOURAKIS: Well, that is so, if the ACT was an independent state, but that is not the position in Australia. Your Honours, if I conveniently move to the other issue, the question of the single vessel and whether it is a floating part of the territory. The position that was put by the learned Solicitor‑General for the Commonwealth was one, in the ship The Chung, to which he referred, where the ship was considered and was an enclave within the territorial waters of Hong Kong, and difficulties arise there. But as to the position where the ship is on the high seas and one does not have the difficulty that it is within the territory of another state, and therefore the practical difficulties mentioned there, the proposition is – and it is one put by the Commonwealth itself at paragraph 14.2 of its initial submissions ‑ that the law of the state to which the ship is flagged is the law that applies.
So, if the Court pleases, if an action was brought in Victoria on a tort committed on a ship registered in a New South Wales port but committed on the high seas, the court in Victoria would, consistently with the principle referred to, as I say, at paragraph 14.2 of the Commonwealth’s submissions, apply the law of New South Wales, although the tort did not occur within a law area, in the sense of being within the territory of a state. In my submission ‑ ‑ ‑
KIRBY J: This seems to be the floating island theory of jurisdiction, which, at least in the one passage that has been referred to us in Professor Shearer’s book, rather knocks that on the head.
MR KOURAKIS: Your Honour, at paragraph 14.2 a passage from another text is set out, which is the explanation for the rule to which I have referred. In fact, the passage there set out by the Commonwealth refers to the floating territory theory, and it seems to apply, in my submission, when we are considering a ship on the high seas. The problem in Shearer’s book, to which the Court was taken, is one which occurs where the ship is within the territorial waters of another state, and for that reason refer to it as an enclave, and that raises its own particular problem.
But, in terms of a ship on the high seas, the rules accepted up until now would have, as I say, a Victorian court applying the law of New South Wales for a tort committed on a New South Wales registered ship. That suggests, in my submission, some choice of law operating. If one goes from there to a ship that is not registered or to a collision between ships registered in different parts of Australia, in my submission, similarly, a choice has to be made as to what law will apply, although ‑ ‑ ‑
KIRBY J: Well, one would try to make such a choice conformably with the developments of public international law. There must be an awful lot of law on this subject in the United States, the United Kingdom and elsewhere, one would think.
MR KOURAKIS: I cannot, if the Court pleases, assist with that. The accepted theory, for example, where the collision occurs between ships of two different states is simply that the law of the forum will apply, and that has been the common law choice of law rule that has applied. But, in my submission, it need not be the common law choice of law rule or the rule under section 79 and 80 requiring identification of the applicable law for those purposes. The law may well be something like the Australian common law, supplemented by those rules particular to maritime jurisdiction, obviously subject to Australian Commonwealth laws, but also perhaps subject to valid State laws which can validly have extraterritorial effect.
GUMMOW J: It cannot apply to an action against the Commonwealth. You have to find a federal law that picks them up ‑ ‑ ‑
MR KOURAKIS: In those cases there will be a number of reasons why the State law might not be valid but State laws might validly apply, particularly, for example, to pleasure craft and fishing vessels, and it might be that the applicable law is the Australian common law, subject to
Commonwealth law and any valid State legislation having extraterritorial effect.
Your Honours, finally, on the question of the capacity of a body of law of that type to develop principles to deal with the resolution of tort from the high seas, as to the question of delay, the Supreme Court of the United States has contemplated the application of laches to actions for fatal accidents according to the common law of fatal accidents as developed in the United States in the maritime jurisdiction to supplement the laws which give claims for fatal accidents in some jurisdictions but not others.
KIRBY J: This is to supplement statutory law, is it?
MR KOURAKIS: Yes.
KIRBY J: There is some common law principle of laches developed by that court.
MR KOURAKIS: Yes.
KIRBY J: You had better give us the reference to that.
MR KOURAKIS: The references to the American authorities appear in our submissions at page 3, footnote 7. That law has not been developed to the point of application but your Honours will see in footnote 7 a reference to the decision in Moragne v States Marine Lines. In that action the common law or maritime law action for fatal injury was accepted but in accepting that as a common law claim the Supreme Court contemplated or accepted that in the absence of any enactment by Congress of an applicable statute of limitation, the doctrine of laches may apply. If the Court pleases, they are my submissions.
GLEESON CJ: Thank you. Yes, Mr Solicitor.
MR BENNETT: May it please the Court. May I first deal with this question of the Limitation Act (Imp) and just show how it arose. We took the view that this Court would not be concerned with the details of that, that the purpose of the questions was to select the law or the law area or the jurisdiction whose law was applied rather than to go into the minutiae of how that worked, but I can tell your Honours very quickly how it works.
Under the Limitation Act 1985 (ACT) section 2 repeals the Imperial Act 21 James 1 chapter 16, or the relevant parts of it. Then section 3 provides that subject to certain sections which I will come to:
nothing in this Act
. . .
(b) enables an action . . . to be commenced or maintained which is barred . . . by a law . . . repealed or amended by this Act.
That Act, that Limitation Act (Imp), was the Act in force in the Territory at 1964.
GUMMOW J: By what law? The Seat of Government Acceptance Act, was it, or ‑ ‑ ‑
MR BENNETT: Yes, which incorporated New South Wales law which, in turn, incorporated English law as at July 1828; the Charter of Justice.
GUMMOW J: There is authority that says that, is there not?
MR BENNETT: Sorry, your Honour.
GUMMOW J: Could someone give us a reference. There is authority that says that.
MR BENNETT: Your Honour, I will have a document prepared.
KIRBY J: But did it not also incorporate statute law as applicable in New South Wales and was there not a Limitation Act of colonial times.
MR BENNETT: No, your Honour; the first one was 1969, the first relevant one.
KIRBY J: Of New South Wales.
MR BENNETT: Yes, your Honour. There was not a Limitation Act that dealt with actions on the case prior to that.
KIRBY J: So it rose out of the Law Reform Commission report in New South Wales, did it not?
MR BENNETT: Yes.
KIRBY J: So that presumably would have some background material.
MR BENNETT: Yes. It is fairly straightforward; it is just a long trail. I said that the transition of the provision was subject to certain sections. It is subject to Division 2 of Part 3, which includes section 36, which is the section under which my learned friend’s client applied for an extension of time. So that is the way it works.
KIRBY J: What about the transitional provisions? Are there transitional provisions of the ACT Act of 1985, which dealt with ‑ ‑ ‑
MR BENNETT: That is what I just referred to; that is section 3.
KIRBY J: Section 3.
MR BENNETT: Yes, your Honour, which says that:
nothing in this Act –
. . .
(b) enables an action or arbitration to be commenced or maintained which is barred at the commencement of this Act by a law in force in the Territory that is repealed or amended by this Act ‑
The English Limitation Act had already barred the cause of action, but that is subject to the extension of time provisions.
KIRBY J: Yes, I see.
GUMMOW J: Your materials do not produce section 3 of the 1985 Act.
MR BENNETT: No, they do not, your Honour.
GUMMOW J: You need that before you get into sections 35 and 36.
MR BENNETT: Yes, one does, your Honour. As I say, we have taken the view the Court did not need this, but I apologise for that and ‑ ‑ ‑
GUMMOW J: Well, in other words, you do not press – no one seems to press now – the New South Wales limitation law?
MR BENNETT: The reason for New South Wales, your Honour, was not that it was incorporated by some ACT law, but that on the facts of the decision in Mewett, your Honour will recall that Justice Gaudron, I think by agreement between the parties, applied the law of the port from which the ship had sailed.
GUMMOW J: Which is Jervis Bay.
MR BENNETT: Which is Jervis Bay and parts of which are in New South Wales and parts of which are federal and there are some difficult factual issues there, and so that is why we ‑ ‑ ‑
GUMMOW J: It was a fail‑safe, was it?
MR BENNETT: It was a fail‑safe.
GLEESON CJ: The port from which the ship sailed on its last voyage or ‑ ‑ ‑
MR BENNETT: Yes, it depends which ship of course, your Honour. We have gone into all the facts in our submissions and in the case. Yes, it would have been New South Wales, if that had been the test, but we say of course that it is the place with the closest connection, which goes beyond that. That is the first matter.
KIRBY J: So what are you plumbing for? Closest connection, registration of the ship, presence of the Naval Board, the residence of the sailors?
MR BENNETT: We plump for closest connection, your Honour, which we say – they are all listed in our submissions – when you add them up and throw them in the air and see which weighs the scales down more, you come down in ACT.
KIRBY J: But that seems to be running counter to the theory or concept behind the decision in Pfeiffer.
MR BENNETT: Your Honour, the problem is, the decision in Pfeiffer does not provide the answer to the third corner of the triangle.
KIRBY J: It does not provide the answer you want but it provides another answer.
MR BENNETT: Your Honour, taken literally, the answer provided by Pfeiffer would say there is no law ‑ ‑ ‑
KIRBY J: That is the answer that primarily the plaintiff argues for. There is no relevant rule of the common law.
MR BENNETT: Yes. He might then find there is no principle that says a person must compensate someone who the person injures due to negligence.
KIRBY J: But he says there is a common law of negligence highly developed.
MR BENNETT: Yes, but he has to say that the – if he takes the lex loci – your Honour has taken me to a totally different area, but we submit – and we have devoted some time in our submissions to this – that the common law is not the lex loci. It may be various other things, it may apply for other reasons, but if one is strictly applying the lex loci delicti, if one – the reason one has to develop principle is that there is no law there any more than there is on the moon or on a new volcanic island.
Perhaps your Honour Justice Hayne was not impressed by those examples. May I add another one, and that is a war zone where law and order has so totally broken down that there is no regime recognised by Australia as being a regime in power there. That is perhaps a slightly more realistic example than the Island of Surtsey or some other new volcanic eruption.
CALLINAN J: Mr Solicitor, can I ask you a question? The Solicitor for South Australia drew our attention to a United States case and in that case, Moragne, at page 406 their Honours speak of a law “of laches immemorially applied to admiralty claims”.
MR BENNETT: Yes.
CALLINAN J: You do not plea in laches, though, do you, as a defence?
MR BENNETT: Your Honour, if my friend succeeds on his argument that maritime law is the law to be applied for some reason, the first thing that will happen is that there will be an application for leave to amend to add such a defence.
CALLINAN J: Why would you have pleaded it in the alternative as a defence?
MR BENNETT: That was not a possibility which was raised earlier. It is one of the many matters that may have to be worked out.
KIRBY J: You might be met by a defence of laches in raising the defence of laches.
CALLINAN J: For my own part, I would appreciate some references to English and, if there are any, Australian Admiralty law in which the application of laches has been made.
MR BENNETT: We took the view it was irrelevant, your Honour. One of the reasons it is irrelevant is that if he invokes the Admiralty jurisdiction he then comes ‑ ‑ ‑
CALLINAN J: That may be right, but it seems to me that one cannot say, now, unequivocally, that it is necessarily irrelevant. I would really like to know something about it if the parties can provide some submissions on it.
MR BENNETT: The Admiralty Act itself, your Honour, has ‑ ‑ ‑
CALLINAN J: Because it would seem to me that if ever there were a case for the application of such a doctrine it is probably this one. It may be that the argument is all academic, but if you have not pleaded it or you do not want to rely on it ‑ ‑ ‑
MR BENNETT: Your Honour, it may be we do not have to for this reason, that the Admiralty Act has not been invoked and the reason it has not been invoked by the plaintiff – there are a number of reasons, no doubt – but one of the reasons it has not been invoked is that it contains a limitation provision which is in section ‑ ‑ ‑
HAYNE J: Section 37.
MR BENNETT: Yes, section 37, which provides:
(1) A proceeding may be brought under this Act on a maritime claim ‑
we stress “under this Act”, “A proceeding may be brought under this Act on a maritime claim”, and this could be a maritime claim as defined ‑
at any time before the end of:
(a) the limitation period that would have been applicable in relation to the claim if a proceeding on the claim had been brought otherwise than under this Act ‑
So the primary limitation period goes to what would have happened if it was not in Admiralty. Then it says:
or;
(b) if no proceeding on the claim could have been so brought – a period of 3 years ‑
One would not need to get to this question of laches if he were to sue in Admiralty.
KIRBY J: How do you bring an action under the Act, do you know? Do you have to nominate the Act?
MR BENNETT: Yes, your Honour.
KIRBY J: So you have to specify it?
MR BENNETT: Yes.
KIRBY J: This is brought under the Admiralty Act.
MR BENNETT: Yes.
GLEESON CJ: Or you can go out and arrest something?
MR BENNETT: Well, there might be difficulties doing that, your Honour, but that is not a necessary part of the claim.
GLEESON CJ: Mr Solicitor, can I ask you about section 80. Your principal argument about how we should complete the triangle begins with the assumption that what we are dealing with is a triangle.
MR BENNETT: Yes, your Honour.
GLEESON CJ: But if you look simply at section 80, that leads you to the ACT law, does it not?
MR BENNETT: Which in turn leads one to the common law of the ACT, which is the common law of Australia, which in turn leads one to the question we are asking this Court.
GLEESON CJ: Not the common law of Australia as modified by the Limitation Act (ACT)?
MR BENNETT: Well, no, your Honour. Only if ACT, as a matter of common law, would apply its substantive law such as the Limitation Act. It is a question of which comes first, the chicken or the egg.
GLEESON CJ: Yes, but suppose we have to answer that question.
MR BENNETT: Yes.
GLEESON CJ: Is the Limitation Act (ACT) applicable in relation to litigation concerning events that happen outside the ACT, such as in Queanbeyan?
MR BENNETT: It depends if the choice of law directs one to it, your Honour.
GUMMOW J: Or whether it displaces the choice of law.
MR BENNETT: Yes. When one applies as a matter of choice of law – that was the question my friend raised in his New Zealand example. When one applies the choice of law one does not then say, “Oh, but that law is only applicable within the country so we can’t apply it”. One just does not do that. That would be inimical to the whole process.
HAYNE J: The point I think might be usefully illustrated by considering if Mr Blunden had brought his action in the Supreme Court of Western Australia.
MR BENNETT: Yes.
HAYNE J: On that assumption, as I understand your submission, you get through section 80 according to the following path. There is no law of the Commonwealth relevantly that is applicable. You then look to the common law in Australia. The common law in Australia you say directs you to the law of the place having the best chief principal connection with the events, which you say here is ACT. The Supreme Court of Western Australia should apply the common law of Australia by applying the law of the ACT.
MR BENNETT: Yes, your Honour.
HAYNE J: Including, do you say, the ACT’s limitation provisions?
MR BENNETT: Yes, your Honour.
HAYNE J: Those affecting the substantive remedies, relief, et cetera which are to be obtained. That is the path you say we should follow.
MR BENNETT: Yes, with one addition, your Honour, and that is that at the last stage, ignoring the fact that by its own force, that Limitation Act might only apply to something in the ACT.
HAYNE J: Yes.
GLEESON CJ: Because you only arrive at that conclusion on the basis that the Limitation Act (ACT) is applicable and not inconsistent with, et cetera?
MR BENNETT: Yes.
GUMMOW J: You would reach a contrary result on Justice Hayne’s analysis if there was a statute law of Western Australia which changed this common law rule?
MR BENNETT: The common law choice of law rule?
GUMMOW J: Yes.
MR BENNETT: Yes, your Honour.
HAYNE J: All actions in respect of maritime torts brought in the Supreme Court of Western Australia shall be governed by the law of Western Australia?
GUMMOW J: No matter what the common law rule would be?
MR BENNETT: Yes.
GUMMOW J: But there is not such a law?
MR BENNETT: There is not.
GUMMOW J: Either in Western Australia or in the ACT so far?
MR BENNETT: So far. Here we have two alternative ways one gets to the ACT, in any event.
GLEESON CJ: But because Mr Blunden sued in the ACT Supreme Court in the first place, you do not need to take the intermediate step that you need to take in relation to action commenced in the Supreme Court of Victoria or Western Australia, do you?
MR BENNETT: We would say you do, your Honour, because we would say that it is a federal claim. One looks at section 80. One looks at the common law and there it is.
GLEESON CJ: So you do for the purpose of eliminating any other possibility?
MR BENNETT: Yes, your Honour.
GLEESON CJ: You do for the purpose of eliminating the Limitation Act (Vic)?
MR BENNETT: Yes. Also because one looks at the common law to see whether it is applicable before one looks at the Limitation Act itself, yes, your Honour. Now, there are some other ‑ ‑ ‑
KIRBY J: What is your answer to Justice Menhennitt’s opinion that it is not applicable because the laws of the ACT, being written laws, are laws made for the peace, order and good government – or whatever the territorial provision is – for the ACT, not for the high seas?
MR BENNETT: Because, your Honour – let me go back a step? Suppose one takes a simple situation; a motor accident in Queensland and someone sues in New South Wales. The New South Wales Court, under Pfeiffer, has to apply Queensland law. Let us suppose the Limitation Act (Q) begins with the words, “In an action brought in a Queensland court, the limitation period is six years”.
GLEESON CJ: It is, by hypothesis, a limitation on an action, that is to say an action in an ACT court?
MR BENNETT: Yes.
GLEESON CJ: That is what it is limiting?
MR BENNETT: Yes, but one applies it ‑ ‑ ‑
KIRBY J: It is not procedural. It is substantive by statute.
MR BENNETT: Exactly. So therefore we ignore the words in the Queensland Act that would limit it to Queensland because we are applying it in a New South Wales court.
KIRBY J: But that makes everything applicable.
MR BENNETT: Yes.
KIRBY J: Whereas the federal provision in section 80 has applicability as a condition of application.
MR BENNETT: Yes. Your Honour, it is explained by Justices Wilson and Gaudron in Breavington as being ‑ ‑ ‑
KIRBY J: I never thought I would hear that case referred to again.
MR BENNETT: It is 169 CLR 41 at 99 and it is cited in paragraph 6 point 8 of our submissions in reply. What they said was:
In so far as the law of a State or Territory is thus applied in another State or Territory this occurs not by reason of extended or extraterritorial operation of that State or Territory law, but by operation of the choice of law rule applicable in the State or Territory where the matter falls for adjudication.
So what one picks up is the Queensland law without the bit that says this is to apply in Queensland.
KIRBY J: Is the law of the other State, the written law, the statute law made by a Parliament of another State applied in the different State by force of section 80 or by force of the common law?
MR BENNETT: Your Honour, in the simple case I am giving as an example, by force of the common law, which is the same that section 80 would pick up if it were federal jurisdiction.
KIRBY J: I am just a little bit anxious about judges applying the statute law, and all of it in all of its detail in another law area.
MR BENNETT: It happens all the time, your Honour.
GUMMOW J: It must in European countries because there is no common law.
MR BENNETT: Precisely, it would apply if it was the law of Peru, your Honour. If a defendant who had driven negligently in Peru were to be sued while he happened to be in New South Wales or under some long‑arm statute, the New South Wales court would apply Peruvian law. It would have to read the statutes and call experts ‑ ‑ ‑
KIRBY J: They did not stay the proceedings as forum non conveniens.
MR BENNETT: They might do that, your Honour. It is a matter of perhaps not daily, but certainly regular occurrence that experts on foreign law are called in such situations.
CALLINAN J: In the Queensland and New South Wales example you gave us, in some cases you might have a section 117 point, might you not, unless you did what you say is appropriate?
MR BENNETT: Yes.
KIRBY J: Except that 117 says that you show due regard to the terms of the statute, and you are saying that you can whip parts of the statute out.
MR BENNETT: The problem Justice Callinan refers to was the problem in Goryl v Greyhound in this Court, where a Queensland law said that if one sues in Queensland on an accident in New South Wales, if one is a resident of a State which has a more restrictive tort law, one does not get more than that law would give one. That was held to be in breach of section 117. But that, of course, was conditioned on residence, not on where one sued.
GUMMOW J: Now, all these rules with their expansion, if you like, of statute can be overcome by another statute.
MR BENNETT: They could, your Honour.
GUMMOW J: That is what Akai v People’s Insurance is about.
MR BENNETT: Yes.
GUMMOW J: Get rid of the common law rules if you want to, then make some statutory regime mandatory and limited.
MR BENNETT: Yes. Your Honours, I was also asked about the criminal provisions obtaining on naval warships. Your Honour Justice Kirby asked me about an Act having that effect. Might I also have leave to provide a written submission on that. That will be non‑controversial, of course. It will just be identifying the Act and dealing with it.
KIRBY J: It was not confined to naval vessels and my understanding was it was applying as part of the criminal law of the defence forces, the criminal law of the ACT.
MR BENNETT: Yes, we will have a look at that, your Honour.
KIRBY J: But I think it has been supervened now by a Defence ForceDiscipline Act.
MR BENNETT: Yes. Your Honours, the other matters are fairly brief. There were some submissions about High Commissions in London and foreign embassies. There is some authority dealing with that and there are two cases in Australia which have rejected the suggestion that an embassy is a little piece of foreign territory in which foreign law may apply. The first is the decision of Justice Fox in The Queen v Turnbull; Ex parte Petroff (1971) 17 FLR 438, where his Honour rejected a submission that a prosecution could not be brought for offences against Australian law where those offences occurred in the Soviet Embassy in Canberra. Justice Fox described that argument as “unsound” and said:
The premises of a foreign chancery or embassy are not outside the territory to which the criminal law, otherwise operating in this Territory, applies.
He referred to some 17th century writings by Grotius and then said:
it is apparent from all the modern texts that the principles espoused by Grotius in this connexion –
he said it was a foreign enclave –
do not now have international acceptance.
He referred to a decision of the Circuit Court of Appeal in the District of Columbia in Fatemi v United States where, again, it was said:
“A foreign embassy was not a part of the territory of the sending state ‑
The more recent case is a decision of Justice French, The Minister for Foreign Affairs v Magno (1992) 37 FCR 298 at 321, where his Honour said this:
a legal fiction that the person and premises of ambassadors were outside the territory of the receiving State ‑
has long been discredited. There is an English decision to the same effect, of Justice Cumming‑Bruce in [1973] Fam 24, Radwan v Radwan, where he said diplomatic premises were part of the territory of the receiving state not the sending state, so a decree of divorce obtained by a husband from the Consul‑General of the United Arab Republic in London was not obtained in a country outside Britain.
KIRBY J: That seems to be consistent with the approach of the Privy Council to the floating island theory too.
MR BENNETT: Yes. But the floating island theory is slightly different, your Honour. There is a decision of the New South Wales Court of Appeal in which Justice Heydon participated called Union Shipping New Zealand Limited v Morgan [2002] NSWCA 124.
GUMMOW J: Wait a minute. This is an electronic citation?
MR BENNETT: Yes, your Honour.
GUMMOW J: [2002] NSWCA?
MR BENNETT: 124.
GUMMOW J: 124, thank you.
MR BENNETT: It is a case where a New Zealand ship was in a New South Wales port unloading by means of conveyor belts when a tort was committed on board ship, and it was held that the applicable law was that of New South Wales as the littoral state rather than New Zealand as the flag state. That is a rejection of the floating island theory, but the floating island theory is usually referred to in relation to ships in foreign waters or ports. When the ship is on the high seas the floating island theory still has some validity for certain purposes, certainly for choice of law purposes.
GUMMOW J: What do you say about the point made that the Privy Council case was based on the enclave idea, that is to say, the foreign ship was one mile, was it not, of Hong Kong?
MR BENNETT: Yes.
GUMMOW J: Not the high seas?
MR BENNETT: I am sorry, your Honour?
GUMMOW J: It is put against you that the floating island theory has more strength?
MR BENNETT: Your Honour, we do not deny that, but it does not ‑ ‑ ‑
GUMMOW J: When it is outside on the high seas, whereas the Privy Council Case it was some enclave inside British waters?
MR BENNETT: Yes. That is what has been rejected, but when it is on the high seas, if one has a tort internal to the ship, when they adopt a choice of law rule or ‑ ‑ ‑
KIRBY J: Justice Windeyer’s view in Parker seems to be a reflection of a floating island theory of some kind, does not it? His Honour said that this is a tort that happened on an Australian vessel and therefore the Australian law applies. Is that not correct?
MR BENNETT: There were other factors there, your Honour, and, of course, also there was a distinction between torts internal to a ship and torts arising out of collisions between ships, and that has always been a distinction…..the law of the forum, in the end, of course, as was appropriate in that time.
GUMMOW J: The principle for which you contend, does that have some different aspect to internal ship torts?
MR BENNETT: Your Honours do not need to decide that in this case, but there is a reputable view that if there is an internal ship tort, and if there is a – I am sorry, one takes two steps - that with an internal ship ‑ ‑ ‑
GUMMOW J: Is this internal economy rule?
MR BENNETT: Internal economy rule, yes.
GUMMOW J: Yes.
MR BENNETT: One looks then to the case of the flag and there is authority which suggests where one has a flag place such as Australia, Canada or the United States where you have a federal system, that one looks to the port of registration. That does not help us here, (a) because it is not an internal ship event, and (b) because the ships have no port of registration.
GUMMOW J: I think any principle you get out of this case might have to be fairly narrowly expressed.
MR BENNETT: Yes, it may be a quadrilateral more than a – yes. The other matters are all fairly short. I will not saying anything about the expressio unius argument based on the Navigation Act except to say that it is dealt with in paragraphs 4.4 to 4.5 of our reply and that it involves assumptions about the field covered by the Navigation Act – of our comments on Tetley, I am sorry. Your Honour, in one of the documents we handed up yesterday was our comments on the Tetley article and it is paragraphs 4.4 to 4.5 of those comments. I will not go to them beyond identifying them.
Finally, the Navigation Act, section 260, we would submit clearly does not create a cause of action on its face. It is part of a trilogy of three sections dealing with apportionment and the problem that the common law of course did not provide apportionment in relation to negligence. It is simply rectifying that and it assumes that there is otherwise a liability. It assumes two ships with different owners at least, and in my respectful submission, it just has no relevance to the present case. Unless there is anything else, your Honour, those are our submissions.
GLEESON CJ: Yes, now the form of the stated case is a matter that you will talk to Mr Little about.
MR BENNETT: Yes.
GLEESON CJ: Let us have an agreed addition to cover the matter we discussed in argument.
MR BENNETT: Yes.
GLEESON CJ: We will reserve our decision in this matter and we will adjourn until 9.30 tomorrow morning in Canberra and 9.30 tomorrow morning in Sydney.
AT 12.52 PM THE MATTER WAS ADJOURNED
Key Legal Topics
Areas of Law
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Administrative Law
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Constitutional Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Standing
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Statutory Construction
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Procedural Fairness
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Natural Justice
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