Blunden v Commonwealth of Australia

[2003] HCATrans 261

[2003] HCATrans 261

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 WEDNESDAY, 6 AUGUST 2003, AT 4.00 PM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth:   May it please the Court, I appear for the defendant with my learned friends, MR A.W. STREET, SC, MR P.J. HANKS, QC and MR T.M. HOWE.  (instructed by Australian Government Solicitor)

MR G.F. LITTLE, SC:   May it please the Court, I appear with my learned friend, MS E.J. TECHERA, for the plaintiff.  (instructed by Pamela Coward & Associates)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MR M.J. LEEMING, for the Attorney‑General for New South Wales who intervenes in the proceedings.  (instructed by Crown Solicitor for New South Wales)

MR C.J. KOURAKIS, QC, Solicitor-General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MS N.D. CHARLESWORTH, for the Attorney‑General of South Australia who intervenes.  (instructed by Crown Solicitor’s Office (South Australia))

GLEESON CJ:   Mr Solicitor, for the Commonwealth, tomorrow we will, to the extent to which it is necessary, sit from 10.00 am to 1.00 pm and 2.00 pm to 4.00 pm and we would like counsel over the adjournment this evening to agree between themselves on a division of that time, if they have not already done so.  Yes, Mr Solicitor.

MR BENNETT:   If the Court pleases, this is a case about private international law.

HAYNE J:   Why?  Not so fast, Mr Solicitor, not so fast.

KIRBY J:   One could characterise it in a different way.

MR BENNETT:   One could.  In Pfeiffer this Court disposed of the rule in Phillips v Eyre and held that one looks as a matter of private international law in torts to the lex loci delicti as between States.  In Zhang this Court extended that to torts committed in foreign countries.  The issue that arises today of course is what one does in relation to torts committed at sea, specifically a tort committed in relation to a collision between two ships of the Royal Navy which do not have home ports.

KIRBY J:   Of the Royal Navy?

MR BENNETT:   Royal Australian Navy, I should have said, your Honour.  The problem is how one applies the rule in Pfeiffer and Zhang.

HAYNE J:   Why?

GUMMOW J:   No, the question is whether there is any occasion to apply any law other than the lex fori.

MR BENNETT:   The way we put it, your Honour, lex fori is one of the choices.

GUMMOW J:   Wait a minute, where there is no other law area with an interest, if you like, which the forum recognises through its common law rule of private international law.

HAYNE J:   There is no choice between the laws of two law areas, is there, Mr Solicitor?

MR BENNETT:   That is my submission, your Honour, and what we will be saying is that in those circumstances the private international law –and I advisedly use that term instead of conflicts of laws – of the forum has to decide between three possible solutions – four possible solutions, I suppose.  The first solution is the lex fori on its own, and that involves all the disadvantages identified by this Court in Pfeiffer and Zhang, and, notwithstanding what Mr Bell may have said in his book, all the disadvantages of forum shopping.

One may secondly try to identify a lex loci, and we submit that neither the law maritime nor the common law, for different reasons, can be ‑ ‑ ‑

GUMMOW J:   There is no lex loci.

MR BENNETT:   Precisely, your Honour.  That is what my submission will be.  I thought it might take me some time to reach that point but if that be ‑ ‑ ‑

GUMMOW J:   The question comes down to, I think, we are in the forum, the forum has federal jurisdiction, section 80 of the Judiciary Act indicates the common law, the common law includes rules of private international law, the question is, is there any such rule here which has a claim if you like to be included as part of the lex causae other than the lex fori?  The hazard is that unless you fix upon some particular law, you will have differential outcomes between different forums in Australia.

MR BENNETT:   Yes.

GUMMOW J:   You say it has to avoid that.

MR BENNETT:   Yes.

GUMMOW J:   The question is, why, when it was always open to you to enact a federal limitation law and you failed to do it for 100 years.

HAYNE J:   And where the differential outcome applies only in this very unusual set of circumstances of collision at sea between two naval vessels, and not operate in relation to other collision cases.

MR BENNETT:   One hopes it is unusual, your Honour, but it applies to a large number of claims.

GUMMOW J:   Reading Verwayen, one would have thought limitation problems had gone away.

MR BENNETT:   There is a difference between Voyager claims and Melbourne claims.

GUMMOW J:   I will not ask any more.

MR BENNETT:   There is a big policy difference between the two in the way they are treated, for reasons which perhaps are fairly obvious.  The third possible way of doing it, and the way which we suggest is the best way, is to say, let us, by analogy with Pfeiffer and Zhang, apply a rule of private international law which says one looks at the place with the closest and most substantial connection.

HAYNE J:   But, Mr Solicitor, the premise for all of that is that one is in the realm of discourse of choice of law, private international law – let us not get hooked up on the title.  Why are we in that realm of discourse at all, when the events with which we are concerned did not occur in the law area and there is no connecting feature which invites attention to a law area other than the forum? 

MR BENNETT:   Your Honour, that brings me to the fourth possibility, which we do not espouse, which is saying that because there is no law area, there is no applicable law, and the rule of ‑ ‑ ‑

GUMMOW J:   No.

HAYNE J:   No.

MR BENNETT:   One has the lex fori which one starts with.

HAYNE J:   Yes.

MR BENNETT:   But its rules of private international law, applied to a tort on the moon, or ‑ ‑ ‑

GUMMOW J:   The question is, are there any rules?

MR BENNETT:   Yes, that is a different way of putting what I have just said, your Honour.

GUMMOW J:   And should one be invented?  That is what you are really saying – one should be invented, I think.

MR BENNETT:   No, your Honour.

GUMMOW J:   No bad thing, maybe, but that is how it is, really.

MR BENNETT:   There is no case which lays down the rules we applied in this situation.  There is no doubt of that.

HAYNE J:   But there are statutory provisions that would have been engaged, relevantly, if the collision had been between ships other than ships of the Royal Australian Navy.

MR BENNETT:   Yes, if people chose to invoke the law maritime and its jurisdiction.  The problem with the law maritime is that it is not a law applying in a law area as such; it is merely a branch of the common law dealing with a subject matter.

GUMMOW J:   Yes.

MR BENNETT:   It applies, for example, as we have said in our submissions, to a dispute between two mortgagees over a ship which has never sailed.  That is not on the high seas in any real sense.  It is a body of law applicable to a subject matter rather like divorce.

GUMMOW J:   Yes.  Lord Diplock says that usefully in The Tojo Maru.

MR BENNETT:   Yes, that was a case I was going to ‑ ‑ ‑

GUMMOW J:   Yes, [1972] AC at 290 to 291.

MR BENNETT:   Yes, that is the one I was ‑ ‑ ‑

GUMMOW J:   In the first version of your submissions you refer to jurisdiction under the Admiralty Act 1988. That cannot be right, can it? These events precede that.

MR BENNETT:   Yes, they do.

HAYNE J:   But for the presence of the warships, it would have been the Navigation Act that relevantly applied.

MR BENNETT:   If it had been invoked by a plaintiff, your Honour, but, in the same way as in family law, an ordinary court of the land cannot award a property settlement; it is something that is only awarded when one invokes the jurisdiction of the Family Court or another court with family law jurisdiction, and then a particular area of law, as opposed to a law area, a particular subject matter of law becomes applicable. 

Admiralty law, or the law maritime, is nothing more than that.  It is a law school subject.  It is something which deals with a particular type of dispute, where one person invokes the rules of it and applies them against someone else, accepting the consequences.

GUMMOW J:   Now, the reference to the Admiralty Act was in 6.3 of your first version, I think we can dismiss that, can we?

MR BENNETT:   Your Honour, the questions are sufficiently difficult, but our thinking has certainly developed as the matter has advanced.  What the pleading raises, of course, is a choice between New South Wales and the Australian Capital Territory, which is another issue which I will be saying somewhat less about.  There are, of course, Voyager claims in a number of jurisdictions – sorry, Melbourne claims in a number of jurisdictions.

GUMMOW J:   That is why you advocate a single outcome rule.

MR BENNETT:   Yes.  Your Honour, we would submit it is highly inappropriate that a plaintiff should be entitled to say, “I select Tasmania”, or, “I select Queensland”, or, “I select Western Australia”, because the limitation regime may be more plaintiff friendly in one place than another place.

KIRBY J:   You complain about that, but why is not the plaintiff entitled to say, “Well, you had it within your power to correct this and you did not do so, so stop complaining”?

MR BENNETT:   If we corrected it after 1964, we would have had a problem with section 51(xxxi) of the Constitution.

KIRBY J:   So be it.  If the plaintiff then says, “Well, you had the power since 1901 and you had warships from before the First World War, so” ‑ ‑ ‑

MR BENNETT:   We also then had Parker’s Case which said that a serviceman could not sue in that sort of situation.

CALLINAN J:   Justice Windeyer – the Commonwealth nearly always declined to take the point but never until Verwayen, anyway, I do not think, waived it in any way.  That was the practice.

MR BENNETT:   Yes.  This Court is concerned, of course, not just with a large number of claims arising out of the Melbourne/Voyager collision, or more particularly with one of them.  There is a more general proposition which could affect unregistered pleasure craft off the coast.  Indeed, to some extent ‑ ‑ ‑

GUMMOW J:   They would be registered though, would they not?

MR BENNETT:   Many would not be, your Honour.  Dinghies would not be – or many would not be – and there are other unregistered boats.  But the problem could also rise in relation to new volcanic islands; it can arise in relation to places where no particular foreign government is recognised as being in de facto control.  I said semi‑facetiously earlier, it could arise on the moon.  But it is, in that sense, a general problem which needs to be solved.  We submit that this Court has solved the private international law problem in the Pfeiffer area and the Zhang area, and all we need to do is fill this last little gap.  We suggest the most rational and consistent way of doing it, as part of the new body of private international law to emerge since the demise of Phillips v Eyre, which is really what we are doing.

GUMMOW J:   Would this apply to aerial torts as well?

MR BENNETT:   Your Honour, it might depend what one was over.

GUMMOW J:   There, there always will be some registration system. 

MR BENNETT:   Also, your Honour, I think a number of international treaties, for fairly obvious reasons, apply the jurisdiction of the place that the aeroplane next lands at.  There are agreements about that sort of thing.  My submissions can be shortened by the fact that I do not need to address your Honours on the proposition – or I assume, from what has been said, I do not need to – that the law maritime is not the law of an area.  So we are not dealing with a situation where there is a lex loci that can be applied.

The same applies to the common law.  In one goes back before Yarmirr for the moment, this Court held in the Seas and Submerged Land’s

Act Case, applying the majority decision in R v Keyn that the common law did not extend beyond the low‑water mark.

GUMMOW J:   Yarmirr has come along too.

MR BENNETT:   Yarmirr has come along too and considerably reduced the scope for that, but Yarmirr of course was only dealing with the territorial sea and was also dealing with particular questions of whether the common law could have some application in relation to events occurring beyond the low‑water mark.  It was not dealing with the problem that arises here.  One cannot seriously suggest, we would submit, that the common law is the area of law for the entire high seas.  That would be to attribute to Australia an even greater claim than was made by someone on behalf of England many years ago.  In the high seas of course many countries have rules as to how they deal with claims in relation to torts committed on the high seas.

KIRBY J:   I thought we were told in Yarmirr that there was some English authority to the effect that the common law did apply on the high seas, including a decision of the Court of Appeal of England in relatively recent times.  I will have a look at that.

MR BENNETT:   Yes.  Your Honours, might I hand to the Court some submissions dealing with an article by Tetley called “Choice of Law – Maritime Torts” which was an article which it was suggested we have some regard to.

GLEESON CJ:   Thank you.

MR BENNETT:   Can I also hand to the Court at the same time some extracts from Marsden on Collisions at Sea, this being, I am told by aficionados in the area, the leading work on the subject. 

GUMMOW J:   The leading British work?

MR BENNETT:   Yes, your Honour.  The other matter is the case which your Honour Justice Gummow referred to, The Owners of the Motor Vessel Tojo Maru v N.V. Bureau Wijsmuller [1972] AC 242. We have copies of that for the Court. Is that a convenient time, your Honour?

GLEESON CJ:   We will adjourn until 10 o’clock tomorrow morning.

AT 4.18 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 7 AUGUST 2003