Breavington v Godleman

[1988] HCA 40

HIGH COURT OF AUSTRALIA

Mason C.J., Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ.

BREAVINGTON v. GODLEMAN AND OTHERS

(1988) 169 CLR 41

18 August 1988

Private International Law—Federal Jurisdiction

Private International Law—Tort—Negligence—Act committed in Territory—Personal injury—Territory statute imposing limit on amount of damages—Action in State court—No limit on amount of damages under State law—Choice of law—Whether law of place of tortious act or of forum—The Constitution (63 and 64 Vict. c. 12), ss. 118, 122—Motor Accidents (Compensation) Act 1979 (N.T.), ss. 4,5—State and Territorial Laws and Records Recognition Act 1901 (Cth), s. 18. Federal Jurisdiction—Conflict of laws—Full faith and credit—Whether State court required to give full faith and credit to Territory statute—Whether law of Territory a law of the Commonwealth—Inconsistency—The Constitution (63 and 64 Vict. c. 12), ss. 109, 118—State and Territorial Laws and Recognition Act 1901 (Cth), s. 18. Federal Jurisdiction—Action in State court against Commonwealth—Submission to jurisdiction—Whether federal jurisdiction—Whether State choice of law rules apply—The Constitution (63 and 64 Vict. c. 12), ss. 75(iii), 78—Judiciary Act 1903 (Cth), ss. 39(2), 56, 64, 79.

Decisions

MASON C.J.: This appeal raises an important conflict of laws problem. The appellant sued the respondents in the Supreme Court of Victoria for damages for personal injury arising out of a collision between the vehicle in which he was riding and one driven by the first respondent. The collision took place in the Northern Territory. By his statement of claim the appellant alleges that the collision was caused by the negligence of one or more of the respondents. The issue presented by the pleadings is whether the Supreme Court should determine the appellant's claim for damages by reference to (a) the common law principles governing the assessment of damages ordinarily applied in Victoria or (b) the statutory provisions in force in the Northern Territory governing the recovery of damages in actions in the Territory.

2. The issue arises in this way. By their defences the respondents alleged that the appellant was a resident of the Northern Territory within the meaning of s.4 of the Motor Accidents (Compensation) Act 1979 (N.T.) ("the Act"). Section 5 of that Act provided:

"(1) Subject to sub-section (2), no action for damages shall lie in the Territory in respect of the death of or injury to a resident of the Territory in or as a result of an accident that occurred in the Territory.

(2) Subject to sub-section (3), nothing in

sub-section (1) deprives a person of the right to bring an action for damages for pain and suffering or loss of amenities of life.

(3) A person who has received or has elected to receive a benefit under section 17 shall not

commence or continue an action referred to in sub-section (2)."

The respondents went on to allege that s.5 barred the appellant's action except to the extent that the appellant claimed pain and suffering and loss of amenities of life. The appellant, by his reply, contended that s.5 had no application to the action. The points of law arising on the pleadings were set down for argument. O'Bryan J. ordered that pars.4 and 5 of the first respondent's defence and pars.8 and 9 of the second and third respondents' defence, which raised ss.4 and 5 of the Act, be struck out on the ground that the lex fori applied. The Full Court (Young C.J., King and Beach JJ.) allowed the respondents' appeal on the footing that the lex loci delicti, namely the law of the Northern Territory, applied. The Full Court set aside the order made by O'Bryan J. and declared that the paragraphs in question constituted a good defence to so much of the appellant's claim as they sought to answer. The appellant's case in this Court is that the orders made by O'Bryan J. should be restored on the ground that the law of Victoria as the law of the forum is the applicable law.

3. One of the respondents is the Australian Telecommunications Commission. It is common ground that the Commission is "the Commonwealth" within the meaning of s.56 of the Judiciary Act 1903 (Cth). This section enables a person making a claim against the Commonwealth, whether in contract or in tort, which arose in a State or Territory, to bring a suit in the High Court or the Supreme Court or other court of competent jurisdiction of that State or Territory. It is not the function of s.56 to invest jurisdiction in the High Court or the courts of the States in actions against the Commonwealth. That is the function of s.75(iii) of the Constitution and s.39(2) of the Judiciary Act: Baume v. The Commonwealth (1906) 4 CLR 97, at p 102; The Commonwealth v. Evans Deakin Industries Ltd (1986) 161 CLR 254, at p 264. The presence of s.56 in Pt IX dealing with "Suits By and Against the Commonwealth and the States" rather than in Pt VI dealing with "Exclusive and Invested Jurisdiction" indicates that the section has a different purpose, as does the language of the provision. What it does is to confer a right to proceed against the Commonwealth in the circumstances mentioned. Whether s.56 is the source of the Commonwealth's liability in tort, either alone or in conjunction with s.64 of the Judiciary Act and perhaps s.75(iii) and s.78 of the Constitution is a question that I put to one side.

4. Although, for these reasons, s.56 does not limit or curtail the investment of jurisdiction achieved by s.39(2), the effect of s.56 is to qualify or restrict what may be done in the exercise of that jurisdiction by providing that the right to proceed against the Commonwealth in respect of a claim in contract or tort arising in a Territory is exercisable only in the circumstances mentioned in the section. The Judiciary Act confers no such right in any other circumstances. On this footing s.56 enabled the Commission to defeat the action on the ground that the appellant had no right to proceed against the Commonwealth in the Supreme Court of Victoria: see The Commonwealth v. Rhind (1966) 119 CLR 584, at pp 599, 606-607. Whether the absence of such a right to proceed should be raised by way of objection to the jurisdiction or by way of defence is not a question that needs to be decided. The Commission has not taken such an objection, nor pleaded such a defence. Accordingly, the Supreme Court of Victoria had jurisdiction to entertain and determine the claim for relief against the Commission. That jurisdiction was necessarily federal jurisdiction by reason of s.75(iii) of the Constitution and s.39(1) and (2) of the Judiciary Act.

5. The respondents' contention that the lex loci delicti is the governing law rests on two suggested bases: (1) the principles of private international law and (2) ss.106, 107 and 118 of the Constitution and s.18 of the State and Territorial Laws and Records Recognition Act 1901 (Cth) ("the Recognition Act"). It is convenient to examine these arguments in the order in which I have stated them.

6. By way of introduction I should make some preliminary comments about the conflicts problem as it has been seen within the Australian federation. Historically Australian courts have approached choice of law questions within the federation on the footing that they are to be resolved by the common law principles of private international law. In 1911 O'Connor J. described the principle on which the courts of one State take cognizance of a wrong committed in another State as being "well recognized": Varawa v. Howard Smith Co. Ltd (1911) 13 CLR 35, at p 69. In this respect we have travelled the same path as the United States in resolving inter-State conflict problems by recourse to the rules of private international law, rather than by reference to any wide-ranging substantive operation to be attributed to the full faith and credit provisions of s.118 of the Constitution and s.18 of the Recognition Act. As Williams J. observed in Chaff and Hay Acquisition Committee v. J. A. Hemphill and Sons Pty Ltd (1947) 74 CLR 375, at p 396, "(f)or the purposes of private international law, South Australia is a foreign country in the courts of New South Wales." Just one year later an American judge was to say, "Michigan's sovereignty is as foreign to Delaware as Russia's": City of Detroit v. Proctor (1948) 61 A 2d 412, at p 416.

7. True it is that Napier J. in In re E. and B. Chemicals and Wool Treatment Proprietary Limited (1939) SASR 441, at pp 443-445 and In re E. &B. Chemicals and Wool Treatment Proprietary Limited ("No. 2") (1940) SASR 267 was prepared to ascribe a substantive operation to s.118, as was Richards J. in No. 2, at p.280, in treating that section as a direction that the court of a State should apply the law of another State whenever that was the proper law of the transaction. However, in this Court s.118 has achieved a limited substantive operation only. Thus in Merwin Pastoral Co. Pty Ltd v. Moolpa Pastoral Co. Pty Ltd (1933) 48 CLR 565 Rich and Dixon JJ. (at pp 573, 577) and Evatt J. (at pp 587-588) considered that s.118 precluded an argument that the Court should not give effect to a defence arising under New South Wales law, which was the proper law of the contract, on the ground that the New South Wales law contravened Victorian public policy, Victoria being the forum.

8. In treating the conflicts problem within the federation in this way Australian courts have followed the course which has been adopted by the courts in Canada as well as the United States. As the Constitution of Canada lacked any counterpart to s.118, which is itself a reflection of s.1 of Art.IV of the United States Constitution, the Canadian experience in applying the rules of private international law is not as instructive as it might otherwise be.

9. According to prevailing opinion, the common law rules of private international law provide a less than ideal means of resolving conflicts problems within Australia: see Anderson v. Eric Anderson Radio &T.V. Pty Ltd (1965) 114 CLR 20, at p 46. So much may be conceded without further discussion. But it is necessary to establish how those rules presently stand in the light of those decisions of this Court before considering whether they should be altered in any relevant respect.

10. Koop v. Bebb (1951) 84 CLR 629 held that an action in tort will lie in one State for a wrong committed elsewhere in Australia if (i) the wrong is of such a character that it would have been actionable if it had been committed in the State in which the action is brought and (ii) it was not justifiable by the law of the place where it was done. In so holding the Court accepted as applicable to a conflicts of law problem within Australia the two conditions stated by Willes J. in Phillips v. Eyre (1870) LR 6 QB 1, at pp 28-29, as the conditions on which an English court would entertain the action in respect of a tort committed in another jurisdiction. In Koop v. Bebb Dixon, Williams, Fullagar and Kitto JJ. (at p 642) described the first condition as "free from ambiguity". But, as Windeyer J. noted in Anderson (at p.41), that a plaintiff has a good cause of action in the sense that it is "actionable" does not mean that there is no defence to it. The word "actionable" should be understood as "triable" or "justiciable".

11. In Koop v. Bebb their Honours (at pp 642-644) recognized that the use of the words "not justifiable" in the statement of the second condition by Willes J. was controversial and confusing. In Machado v. Fontes (1897) 2 QB 231 Lopes and Rigby L.JJ. had considered that the act complained of must not be "innocent" in the country where it was done and that if the act was contrary in any respect to the law of that country, though giving rise to no civil liability there, it was not "justifiable" for the purposes of the second condition. But Cussen J. in Varawa v. Howard Smith Co. Ltd (No. 2) (1910) VLR 509 did not accept this interpretation of the second condition. He was not alone in this opinion: Naftalin v. London, Midland and Scottish Railway Co. (1933) SC 259, at pp 274, 275; see also M'Elroy v. M'Allister (1949) SC 110. The Judicial Committee in Canadian Pacific Railway Company v. Parent (1917) AC 195, at p 205, questioned whether the language used in Machado v. Fontes was sufficiently precise. After reviewing these developments and the deficiencies of the exposition in Machado v. Fontes, including its inconsistency with earlier and later decisions, Dixon, Williams, Fullagar and Kitto JJ. (at pp 642-643) suggested that the second condition is accurately expressed by saying that the act must be such as to give rise to civil liability of the law of the place where it was done. The effect of this interpretation of the second condition is to pay more attention to the lex loci delicti. More recently, the House of Lords in Chaplin v. Boys (1971) AC 356 overruled Machado v. Fontes. In Chaplin v. Boys Lord Hodson and Lord Wilberforce (at pp 377, 389) took substantially the same view of Machado v. Fontes as that taken by this Court in Koop v. Bebb.

12. In Koop v. Bebb Dixon, Williams, Fullagar and Kitto JJ. observed (at pp 643-644) that courts applying the English rules of private international law did not accept the view of Holmes J. in Slater v. Mexican National Railroad Co. (1904) 194 US 120, at p 126 and New York Central Railroad v. Chisholm (1925) 268 US 29, at p 32, that the act complained of gives rise to an obligation where it takes place which follows the person and may be enforced wherever the person may be found. According to that view, sometimes known as "the vested rights" or "obligation" theory, the only source of this obligation is the law of the place of the act and it determines the existence of the obligation and the extent of it. In rejecting the vested rights theory, their Honours went on to say (at p.644):

"English law as the lex fori enforces an obligation of its own creation in respect of an act done in another country which would be a tort if done in England, but refrains from doing so unless the act has a particular character according to the lex loci actus."

On the other hand, McTiernan J. (at p.649) thought that the lex loci delicti was the applicable law. In reaching this conclusion his Honour referred to New York Central Railroad and quoted the comment of Willes J. in Phillips v. Eyre, at p 28:

"A right of action, whether it arise from contract governed by the law of the place or wrong, is equally the creature of the law of the place and subordinate thereto ... in like manner the civil liability arising out of a wrong derives its birth from the law of the place, and its character is determined by that law."

In the context in which it appeared this statement by Willes J. was directed to the first of the two conditions and did not amount to a statement that the lex loci delicti was the governing law.

13. Subsequently in Anderson this Court, in conformity with what had been decided in Koop v. Bebb, unanimously applied the lex fori in determining whether contributory negligence on the part of a plaintiff required a verdict to be entered for a defendant. There the Court applied the law of New South Wales as the lex fori in an action in the District Court of that State for damages in respect of a negligent act committed in the Australian Capital Territory, the plaintiff being adjudged guilty of contributory negligence. According to New South Wales law, contributory negligence on the part of a plaintiff necessitated a verdict for a defendant, whereas the law of the Territory provided for an apportionment of liability. The Court upheld the entry of a verdict for the defendant. Koop v. Bebb and Anderson therefore stand as authorities for the proposition that the lex fori is the applicable law.

14. So the question arises whether this Court should now reconsider that principle. Generally speaking, this Court should be reluctant to depart from a principle accepted in two of its previous decisions, one of them unanimous. But here the question is one of fundamental importance and this Court's previous consideration of it was necessarily somewhat restricted. It is apparent from the joint judgment in Koop v. Bebb and from that of Windeyer J. in Anderson that the Court was applying, subject to some qualification, the rules of private international law as they had been formulated by English courts at a time when the judgments of this Court were subject to an appeal by special leave to the Judicial Committee. The two judgments also recognized that there were elements of uncertainty in the rules as they had been expressed, which would require elucidation in the future. Since then Chaplin v. Boys has cast a long shadow over the previously accepted English view that the lex fori governs substantive questions arising in respect of torts committed outside the jurisdiction, once the two preliminary conditions are satisfied. Although Koop v. Bebb lessened the opportunities for forum shopping by requiring that the act complained of must give rise to civil liability according to the law of the place of the tort, a plaintiff, like the appellant in this case, may find that the law of another State or Territory offers a more generous assessment of damages. Accordingly, continuing acceptance of the lex fori as the governing law still offers opportunities to forum shoppers. All these factors justify our taking a fresh look at the question.

15. Justice Cardozo, who acknowledged the force of precedent and the need for certainty in the law, nevertheless asserted "when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment. ... There should be greater readiness to abandon an untenable position when the rule to be discarded may not reasonably be supposed to have determined the conduct of the litigants ...": Cardozo, The Nature of the Judicial Process (1921), at pp.150-151. As we have seen, the principle established by Koop v. Bebb gives too much scope to the law of the forum and leads to forum shopping.

16. It is convenient to begin with Chaplin v. Boys. It is an unsatisfactory decision, if only because, by reason of division of opinion, it does not authoritatively state the law upon the point. A road collision took place in Malta involving the plaintiff and the defendant, both being British subjects temporarily resident in Malta as members of the British Armed Forces. There was a cause of action under Maltese and English law. However, under the law of Malta only expenses and money loss could be recovered, whereas English law permitted the recovery of general damages for pain and suffering and loss of amenities of life. Lord Guest thought (at p.381) that the question whether particular heads of damage were recoverable was procedural so that he did not need to examine Machado v. Fontes or the problem now under consideration. However, his Lordship referred to the law of Malta as the substantive law (at p.381), thereby indicating a view that issues of substance are to be governed by the lex loci delicti. Lord Hodson and Lord Wilberforce considered that, once the Phillips v. Eyre conditions are satisfied, civil liability for a foreign tort should be governed by the lex loci delicti subject to an exception so that the rights of the parties with respect to an issue in tort is to be determined by the law of the place with which the parties had the most significant connection (at pp.378, 389-392). On the other hand, Lord Donovan and Lord Pearson favoured the application of the lex fori (at pp.383, 406), Lord Pearson stating that in appropriate cases it would be desirable to apply the law of the natural forum in order to discourage forum shopping (at p.406). Although Lord Donovan and Lord Pearson accepted the principle stated in Machado v. Fontes, they considered that the decision was or might be objectionable on the ground that it was a blatant example of forum shopping (at pp 383, 406). In the result Chaplin v. Boys identified either the lex loci delicti, or the lex loci delicti subject to the exception already mentioned, as the governing law.

17. The flaw in the "vested rights" theory as a basis for the lex loci delicti was exposed by Learned Hand J. in Guinness v. Miller (1923) 291 F 769 where he said (at p 770):

"no court can enforce any law but that of its own sovereign, and, when a suitor comes to a jurisdiction foreign to the place of the tort, he can only invoke an obligation recognized by that sovereign. A foreign sovereign under civilized law imposes an obligation of its own as nearly homologous as possible to that arising in the place where the tort occurs."

In the United States the "vested rights" theory also came under powerful criticism because it led to unjust results in particular cases by insisting on the rigid application of the law of the place of the injury even though that law had a tenuous and insubstantial connection with the parties and the occurrences. Lord Wilberforce recognized the force of this criticism in Chaplin v. Boys. He noted the character of the majority of foreign torts which usually involve personal injury or death sustained by travellers away from their place of residence in which the place of the occurrence of the wrong is often fortuitous. His Lordship concluded (at p.388) that "(t)o fix the liability of two or more persons according to a locality with which they may have no more connection than a temporary, accidental and perhaps unintended presence, may lead to an unjust result."

18. The demolition of the "vested rights" theory did not exclude reference to the law of the place of the act as an important element in the principle to be applied by the court of the forum in dealing with a foreign tort. After all the law of the place of the wrong is a material factor and, in many cases, the critical factor, in the resolution of the rights of the parties. In most cases the application of that law satisfies the reasonable expectations of the parties. In the United States where the courts, having rejected the view that the law of the place of the tort should invariably govern the availability of relief for the tort, regard the law of the place of the tort as the basic or prima facie law to be applied, the governing law is the local law of the state which has the most significant relationship with the parties: see Babcock v. Jackson (1963) 240 NYS 2d 743; 191 NE 2d 279; also reported in (1963) 2 Ll. Rep. 286.

19. In Babcock v. Jackson the plaintiff was a passenger in a car owned and driven by the defendant, both parties being resident in New York. An accident took place in Ontario, Canada, during a weekend trip. The law of Ontario excluded liability on the part of a driver to a passenger, but the law of New York (the lex fori) did not. The court declined to apply the lex loci delicti on the ground that justice, fairness and the best practical result was to be achieved "by giving controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation" (at p.749 of N.Y.S.; p.283 of N.E.; p.289 of Ll. Rep.). This approach is explicitly incorporated in the Restatement, Second, Conflict of Laws s.145. According to the Restatement s.146:

"In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship ... to the occurrence and the parties ..."

In Chaplin v. Boys Lord Hodson (at p 380) and Lord Wilberforce (at p 391), after finding that the two conditions in Phillips v. Eyre were satisfied, concluded, in conformity with the American approach, that the law of England should govern the assessment of damages as England had a more significant relationship with the parties and with the occurrence.

20. This approach avoids the shortcomings of the application of the lex fori, particularly the problem of forum shopping, by acknowledging the primacy of the law of the place of the wrong. The approach has encountered criticism from another quarter because it fails to give absolute primacy to that law, thereby contributing to uncertainty of outcome in some situations: see the dissent of Bell C.J. in Griffith v. United Air Lines, Inc. (1964) 203 A 2d 796, at pp 807 et seq. Granted the force of this criticism, it does not justify the inflexible application of the law of the place of the wrong with the consequential injustice it would cause in particular cases. The mechanical application of that law cannot do justice to the infinite variety of cases in which persons come together in a foreign jurisdiction from different legal backgrounds. On the other hand the qualified or flexible application of the law of the place of the wrong copes with the incidents of tort law in the modern age of travel when the place of the accident may be fortuitous, as it is in the case of an aircraft accident, and the parties may have no substantial connection with the law of that place or with that place at all.

21. So, in Chaplin v. Boys it would have been unjust to have relegated the parties to a determination of their rights and liabilities according to the law of Malta. Prima facie, as the law of the place where the accident took place, it was the law to be applied. But its application to the assessment of damages in a case involving parties ordinarily resident in England, who were temporarily stationed in Malta, would plainly result in an injustice. The plaintiff would bear the impact of his serious disabilities in England, including economic loss and loss of amenities of life. As both the plaintiff and the defendant were English residents it was appropriate that the plaintiff should recover and that the defendant should pay damages assessed in conformity with English law.

22. It follows that, if we were looking at the conflicts problem as it arises in relation to foreign torts in the context of a tort committed outside Australia, the American approach or some modification of it, such as the first alternative proposed by the Law Commission and the Scottish Law Commission in Working Paper No. 87, pp.164-165, would have much to commend it. That alternative involves the application of the lex loci delicti subject to an exception involving the application of the law of the country with which the occurrence and the parties had, at the time of the occurrence, the closest and most real connection. If we were to adopt either of these approaches, there would be no place for the two conditions in Phillips v. Eyre. Although Lord Hodson and Lord Wilberforce in Chaplin v. Boys contemplated their retention in conjunction with the application of the law of the place of the wrong, subject to the exception mentioned, the Phillips v. Eyre conditions have little to offer and present a needless complication once the new approach is adopted.

23. In Chaplin v. Boys Lord Wilberforce (at p 391) spoke of the need to take into account "the varying interests and considerations of policy which may arise when one or more foreign elements are present". No doubt a court, in deciding whether the powerful primary claim of the law of the place of the wrong should be discarded, may find it necessary to take account of the policy which underlies the law of a relevant jurisdiction. However, for my part the interests of the parties themselves are likely to be more material in ascertaining whether another law has a closer connection with the parties and the occurrence with respect to the issue to be litigated. The justice of the case turns very largely on the need to give effect to the legitimate or reasonable expectations of the parties. They may have acted in reliance upon an assumption that the courts would apply a certain rule or they may have expected that their rights would be determined by the law of a particular place: see the dissent of Breitel J. in Miller v. Miller (1968) 290 NYS 2d 734, at p 747.

24. The conflicts problem with which we are presently concerned is an inter-jurisdictional problem within Australia. The range of potential conflicts between the laws operating in the States and Territories of Australia is obviously not nearly as great as that which obtains internationally. We have but a limited number of separate territorial jurisdictions or law areas and there is a basic homogeneity or similarity in the common law and the statute law in force in the various States and Territories. The disparity between the Motor Accidents (Compensation) Act of the Northern Territory and the common law of Victoria with respect to the assessment of damages is the exception rather than the rule. The possible existence of significant differences in the laws of States and Territories, arising from the enactment of a statute peculiar to one or more, but not all, States and Territories led me to conclude at an earlier time that we should adopt within the Australian federation the approach that seems best suited to the resolution of international conflicts: see Pozniak v. Smith (1982) 151 CLR 38, at pp 53-54. However, that approach did not commend itself to other members of the Court in that case. What is more the approach is posited on the fact that, on the international scene, there are situations in which the parties have no substantial connection with the law of a particular jurisdiction, especially the law of the place of the tort.

25. One cannot make the same comment with the same force about Australian residents with respect to the law of a State or Territory in which they happen to be at a particular time. Australia is one country and one nation. When an Australian resident travels from one State or Territory to another State or Territory he does not enter a foreign jurisdiction. He is conscious that he is moving from one legal regime to another in the same country and that there may be differences between the two which will impinge in some way on his rights, duties and liabilities so that his rights, duties and liabilities will vary from place to place within Australia. It may come as no surprise to him to find that the local law governed his rights and liabilities in respect of any wrong he did or any wrong he suffered in a State or Territory. He might be surprised if it were otherwise. In these circumstances there may be a stronger case for looking to the law of the place of the tort as the governing law for the purpose of determining the substantive rights and liabilities of the parties in respect of a tort committed within Australia.

26. Barry J. made a related, though different, point in Walton v. Walton (1948) VLR 487 with reference to the English rule calling for a heavy burden of proof on a person seeking to establish a domicile of choice. His Honour observed (at p.489):

"in the Australian community, where social ideas and customs are substantially the same throughout the continent, and where there is a common nationality and a common language, the same significance or importance cannot be ascribed to a person's conduct in moving from one State to another as when the question arises in connection with the action of a person moving to a community where, by reason of a difference of language and national traditions, institutions and usages, he takes on the character of a foreigner".

27. On this footing the Supreme Court of Victoria should apply the law of the Northern Territory in determining the appellant's entitlement to damages. And if the applicable law to be applied by the Supreme Court is the law of the place of the wrong subject to the flexible exception the result would be the same. There is simply no reason to depart from the lex loci delicti as the primary or basic law to be applied. It cannot be said that there was no substantial connection between the law of the Northern Territory and the parties and the occurrence. The appellant was a resident of the Territory at the time and the statute specifically applies to an action for damages in respect of injury to a resident in or as a result of an incident that occurred in the Territory.

28. In reaching the conclusion that, as a matter of conflicts of law, the law of the Northern Territory is to be applied, I reject the notion that the principles according to which damages for personal injury are to be assessed is a matter of procedure. It would be artificial to regard that question as one of adjectival or procedural law. The measure of damages is plainly a question of substantive law.

29. I turn now to the respondents' alternative submission based on the provisions of the Constitution. Section 118 and s.51(xxv) of the Constitution are the counterpart of Art.IV, s.1, of the United States Constitution which provides:

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof."

Section 118 provides:

"Full faith and credit shall be given,

throughout the Commonwealth to the laws, public Acts and records, and the judicial proceedings of every State."

And s.51(xxv) confers legislative power on the Parliament with respect to:

"The recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States".

In view of the presence of s.51(xxv) it is impossible to regard s.118 as a special command that State laws should be recognized. That function is left to Commonwealth legislation pursuant to s.51(xxv).

30. But s.118 has no application to the laws and public Acts of a Territory: Anderson, at p.31. The question then is whether s.18 of the Recognition Act applies to the laws and public Acts of a Territory. Section 18 provides:

"All public acts records and judicial

proceedings of any State or Territory, if proved or authenticated as required by this Act, shall have such faith and credit given to them in every Court and public office as they have by law or usage in the Courts and public offices of the State or Territory from whence they are taken."

The absence of any reference to "laws" as well as the reference to "public acts" instead of "public Acts" indicates that the section does not apply to statutes and other laws of States and Territories. Section 3 of the Recognition Act, which provides that judicial notice should be taken of "State Acts" supports the same conclusion. Indeed, the Recognition Act makes no provision for judicial notice to be taken of "Territory Acts". Section 18 makes provision for the proof and authentication of public acts such as proclamations, orders and commissions. It is not apt to deal with statutes. And it has been asserted that, being evidentiary in character, the section "does not affect the principles on which the Courts of one State take cognizance of wrongs committed in another State": Varawa v. Howard Smith Co. Ltd, at p 69, per O'Connor J. In Anderson, Windeyer J. (at p 46) agreed with this statement.

31. However, in Harris v. Harris (1947) VLR 44 Fullagar J., after drawing attention (at pp 45-46) to the fact that s.18 had its origins in the American constitutional provision and has as a counterpart an Act passed by Congress in 1790 and saying that "No distinction ... can, I think, be drawn between either pair of provisions" went on to state (at p.59):

"The two may mean the same thing, as is held in the United States, or either may be wider or narrower than the other. But the one is a broad general pronouncement or direction such as one would expect to find in a Constitution, and such as may be expected to be the subject of much argument and much difference of opinion, fluctuating perhaps from time to time as social and political conditions change. The other seems to me to be a specific and precise direction ..."

32. For present purposes it is unnecessary to determine whether there is any inconsistency between these views and, if so, which is correct. For my part I doubt that s.18 is merely evidentiary in its consequences. But that is by the way for it is clear that s.18 has no application to the statutes of a Territory. For this reason s.18 does not sustain the respondents' argument.

33. It becomes crucial then to determine the role of s.118. As noted earlier, in Merwin Pastoral, Rich and Dixon JJ. (at p.577) and Evatt J. (at pp.587-588) considered that the section prohibited a court of one State from refusing to give effect to a defence under the law of another State, when the law of that other State was the proper law of the contract then in question, on the ground that the law was contrary to public policy considerations of the forum. This approach to the interpretation of the section accords with that given to Art.IV, s.1 of the United States Constitution at that time.

34. In Bradford Electric Co. v. Clapper (1932) 286 US 145 Brandeis J. acknowledged (at p 160) that the courts of one State may refuse relief to a plaintiff suing on a statutory cause of action arising in another State because the enforcement of the right conferred would be obnoxious to the public policy of the forum. But he went on to say (at p.160) that Art.IV s.1 prohibited a refusal by the courts of one State "to give effect to a substantive defense under the applicable law of another State". Later decisions of the Supreme Court have cut back the effect of Clapper. Although it has been accepted that the purpose of the full faith and credit clause was to preserve rights acquired or confirmed under statutes and judicial proceedings of one State by requiring recognition of their validity in other States, "the very nature of the federal union of states, to which are reserved some of the attributes of sovereignty, precludes resort to the full faith and credit clause as the means for compelling a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate": Pacific Insurance Co. v. Industrial Accident Commission (1939) 306 US 493, at p 501. It has been held that Clapper decided no more than that a State statute applicable to employer and employee within the State, which by its terms provides compensation for the employee if he is injured in the course of his employment while temporarily in another State, will be given full faith and credit there when not obnoxious to its policy: Pacific Insurance, at p 504; and see Nevada v. Hall (1979) 440 US 410, at pp 421-422. The governing principle that has emerged is that in cases of conflict between a statute of the forum and the statute of another State "the conflict is to be resolved, not by giving automatic effect to the full faith and credit clause, compelling the courts of each state to subordinate its own statutes to those of the other, but by appraising the governmental interests of each jurisdiction, and turning the scale of decision according to their weight": Alaska Packers Association v. Industrial Accident Commission (1935) 294 US 532, at p 547. "(T)he Court has invalidated the choice of law of a State which has had no significant contact or significant aggregation of contacts, creating state interests, with the parties and the occurrence or transaction": Allstate Insurance Co. v. Hague (1981) 449 US 302, at p 308.

35. It is evident from this brief sketch of the authorities that the full faith and credit clause has not hampered the elaboration and application of the principles of private international law in the disposition of inter-State conflicts problems in the United States. Indeed, the cases mark a retreat from the provisions of the Constitution to the more flexible provisions of judge-made law. The reason for the retreat was forcefully stated by Stone J. in Alaska Packers (at p.547) in these terms:

"A rigid and literal enforcement of the full faith and credit clause, without regard to the statute of the forum, would lead to the absurd result that, wherever the conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own. Unless by force of that clause a greater effect is thus to be given to a state statute abroad than the clause permits it to have at home, it is unavoidable that this Court determine for itself the extent to which the statute of one state may qualify or deny rights asserted under the statute of another."

36. The underlying implication in these remarks is that a rigid and literal enforcement of the full faith and credit clause would result in the application of the lex loci delicti. Although the principles which have evolved in the United States treat the lex loci delicti as the basic law, they allow for its displacement. As Lord Hodson noted in Chaplin v. Boys (at p 380), these principles favour the lex fori because a court will tend to favour its own policies over those of other States and will be inclined to give its own rules a wider application than it will give to those of other States. That seems to have been the American experience. However, for present purposes the point to be made is that the relevant American law is not dictated by the provisions of the Constitution. The Supreme Court has interpreted the Constitution so that it does not stand in the way of judicial development of appropriate conflicts of law principles.

37. Apart from the implication referred to in the preceding paragraph, the interpretation given to the full faith and credit clause does not support the respondents' argument. Why then should we give to the facsimile an interpretation denied to the original? I would give an affirmative answer if it clearly appeared that the full faith and credit clause had been understood at the close of the last century as the solvent of inter-State conflicts. But this was not the case. The same answer might be given if Australian history and understanding pointed in that direction. But the Convention Debates and the textbooks are silent upon the point.

38. The presence of the word "laws" in s.118 distinguishes the section from its North American ancestor. No doubt that word was inserted to guard against the possibility that the reference to "public Acts" might leave a category of laws in force in a State outside the reach of the section. The presence of the word does not justify giving the section the far-reaching interpretation proposed by the respondents. If any provision in the Constitution is to be regarded as the source of a solution to inter-jurisdictional conflicts of law problems within Australia, it is perhaps s.51(xxv). It is preferable that Parliament should provide a solution by an exercise of legislative power, if that be legitimate, than that the Court should spell out a rigid and inflexible approach from the language of s.118.

39. For the foregoing reasons I would dismiss the appeal.

WILSON AND GAUDRON JJ.: Rodney Godleman, Charles Taylor Piercy and the Australian Telecommunications Commission ("the respondents") are defendants to an action commenced by Anthony Breavington ("the appellant") in the Supreme Court of Victoria to recover damages for injuries sustained by him in a motor vehicle accident in the Northern Territory. The question which arises on this appeal is whether the appellant's right to recover damages is to be determined according to the law of Victoria, or according to the law which would have been applied if the action had been brought in the Supreme Court of the Northern Territory. The question arises because under Victorian law damages fall for assessment in accordance with the common law, whereas the Motor Accidents (Compensation) Act 1979 (N.T.) ("the Compensation Act") has introduced into the Northern Territory a no fault motor accident compensation scheme. Section 5 of the Compensation Act provided, at the relevant time, that:

(1)Subject to sub-section (2), no action for damages shall lie in the Territory in respect of the death of or injury to a resident of the Territory in or as a result of an accident that occurred in the Territory.

(2)Subject to sub-section (3), nothing in sub-section (1) deprives a person of the right to bring an action for damages for pain and

suffering or loss of amenities of life.

(3)A person who has received or has elected to receive a benefit under section 17 shall not

commence or continue an action referred to in sub-section (2)."

2. Section 5(2) of the Compensation Act, whilst allowing that an action may be brought to recover damages (unless the injured person has received or elected to receive a benefit under s.17 of the Compensation Act), effectively excluded any entitlement to recover damages in an action in the Territory for loss of earnings or loss of earning capacity. Damages recoverable for pain and suffering and loss of amenities of life were limited to $100,000.00 (s.39(1)).

3. At the time of the accident the appellant was a resident of the Northern Territory. His action for damages in the Supreme Court of Victoria attracted defences pleading, inter alia, the terms of s.5 of the Compensation Act. The question of law thereby raised was the subject of a hearing before O'Bryan J. who held that the matter was to be determined in accordance with the law of Victoria, and ordered that the relevant paragraphs of the defences raising s.5 of the Compensation Act be struck out.

4. The Full Court of the Supreme Court of Victoria (Young C.J., King and Beach JJ.) upheld an appeal from the decision and orders of O'Bryan J., holding that the appellant ought not to be permitted to recover in Victoria more than he could recover in the Northern Territory. From that decision the present appeal is brought.

5. The appeal was initially argued by reference to the common law rules of private international law determining choice of governing law for the adjudication of liability in respect of tortious acts committed outside the law district of the forum. It is convenient here to note that s.5 of the Compensation Act is concerned only with actions commenced in the Northern Territory and not with actions instituted elsewhere. The Act does not purport to provide generally as to the rights and liabilities arising out of motor vehicle accidents in the Northern Territory. If it did so provide, then it seems to us that the question which would then arise would not necessarily be a choice of law question in the ordinary sense. Rather, the question might be whether an Act of the Northern Territory, depending for its force on the Northern Territory (Self-Government) Act 1978 (Cth), attracts the operation of Covering Cl.5 or s.109 of the Constitution: see Lamshed v. Lake (1958) 99 CLR 132; Spratt v. Hermes (1965) 114 CLR 226.

6. Hitherto it has been accepted that the common law rules determining choice of law apply to actions in tort, involving what is hereafter loosely described as an interstate aspect, by reason that each State and Territory has been regarded as a separate law area enforcing its own laws: Koop v. Bebb (1951) 84 CLR 629; Anderson v. Eric Anderson Radio &T.V. Pty. Ltd. (1965) 114 CLR 20. It has also generally been accepted that those choice of law rules apply notwithstanding that the matter falls for determination in the exercise of invested federal jurisdiction. See, for example, Pedersen v. Young (1964) 110 CLR 162, per Windeyer J. at pp 169-170. Even in matters involving the original jurisdiction of this Court the private international law rules determining choice of law have been seen to have a significant role. See, for example, Musgrave v. The Commonwealth (1937) 57 CLR 514. More recently that role has been manifest in determining choice of remittee forum in the exercise of the powers granted by s.44 of the Judiciary Act 1903 (Cth): see Pozniak v. Smith (1982) 151 CLR 38.

7. The seeming incongruity in the determination of liability for tortious acts occurring in Australia but involving an interstate aspect by reference to the choice of law rules of private international law led to an invitation to the parties to address additional arguments by reference to s.118 of the Constitution, s.18 of the State and Territorial Laws and Records Recognition Act 1901 (Cth) ("the Recognition Act") and s.56 of the Judiciary Act. Submissions were also put on behalf of the Attorneys-General of the Commonwealth, New South Wales, Victoria, Queensland, South Australia and Western Australia intervening pursuant to s.78A of the Judiciary Act, and the Attorney-General of the Northern Territory.

8. Before turning to the questions raised by s.118 of the Constitution, s.18 of the Recognition Act and s.56 of the Judiciary Act, it is convenient to examine, albeit briefly, the relevant common law rules relating to tortious liability in matters of private international law and their operation in Australia. The applicable common law rule, known as the rule in Phillips v. Eyre (1870) LR 6 QB 1, is formulated by reference to torts committed outside the law district of the forum. The rule was expressed in its application to the States of Australia in Koop in the following terms (at p.642):

"an action of tort will lie in one State for a wrong alleged to have been committed in another State, if two conditions are fulfilled: first, the wrong must be of such a character that it would have been actionable if it had been committed in the State in which the action is brought; and secondly, it must not have been justifiable by the law of the State where it was done".

9. Like Phillips v. Eyre, Koop was concerned solely with the question whether action might be brought in a court other than a court having jurisdiction where the tort was committed. In neither case did the question arise as to the law to be applied in the adjudication of the rights and liabilities of the parties. That question arose in Anderson where the issue was whether in an action in negligence in the District Court of New South Wales in respect of events in the Australian Capital Territory the defendant could rely on contributory negligence which was then a complete defence in New South Wales. Under the law of the Australian Capital Territory contributory negligence resulted only in the reduction of damages. It was held that the law of New South Wales should be applied. Windeyer J. rested his conclusion that New South Wales law was applicable, at least in part, on the decision in Koop, saying (at p.42):

"When in Koop v. Bebb (at p 642) this Court spoke of 'the rule of private international law which defines the conditions of civil liability' in one State for an act done in another, the reference was not, as I read the judgment, merely to the entertaining of an action but also to the substantive law for determining liability in an action."

10. The decision in Anderson has been understood to require the application of the forum law as the substantive law determining liability for a tortious act committed outside the law district of the forum: Chaplin v. Boys (1971) AC 356, per Lord Wilberforce at p 386; Kolsky v. Mayne Nickless Ltd. (1970) 72 SR(NSW) 437, at pp 444-445. In Pozniak Mason J. (referring to Koop; Anderson, per Windeyer J. (at pp.41-42); and Kolsky) stated (at p.49) that "the balance of Australian authority ... holds that it is the lex fori that determines questions of substance".

11. Consideration of choice of law in Anderson was directed to the same issue as presents itself in a unitary legal system, viz. choice of law to be applied in the determination of liability for torts committed outside the law district of the forum. However, in Australia the question must be framed to take account of the existence of federal jurisdiction as delineated in Ch.III of the Constitution.

12. Chapter III jurisdiction, whether exercised by this Court, by courts created by the Commonwealth Parliament or by State courts invested with federal jurisdiction, is an Australian jurisdiction. A court when exercising federal jurisdiction, notwithstanding that it is exercising jurisdiction within a particular State or Territory, is not in any relevant sense a forum of the law district of that State or Territory. By force of s.75(iv) of the Constitution, federal jurisdiction includes matters between residents of different States and between a State and a resident of another State. In the ordinary course of litigation in respect of tortious acts, involving what we have loosely described as an interstate element, matters may fall for adjudication by a court of a State or Territory exercising the judicial power of that State or Territory or by a court exercising federal judicial power. Thus, in the context of the Australian federation and the Australian legal system, the choice of law questions which may arise cannot be confined as in a unitary legal system. The question in relation to tortious acts becomes one of the law to be applied when the matter is litigated in a court other than a court exercising the judicial power of the State or Territory in which the tort was committed.

13. To some extent choice of law questions may have been minimized in matters of original federal jurisdiction by force of s.79 of the Judiciary Act which provides as follows:

"The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable."

Either by choice of venue, or by choice by this Court of remittee forum under s.44 of the Judiciary Act, any choice of law question which would otherwise arise in relation to the determination of tortious liability may be obviated by selecting a venue or remittee forum in the State or Territory where the cause of action arose. In practice, of course, the choice of law question has played a significant role in the selection of venue or remittee forum. See, for example, Parker v. The Commonwealth (1965) 112 CLR 295; Gleeson v. Williamson (1972) 46 ALJR 677; Pozniak.

14. The position concerning choice of law in matters litigated in State courts invested with federal jurisdiction is somewhat ambiguous. In Anderson, Barwick C.J. (at p.24) left open the possibility that the question of the applicability of forum law to determine actionability (if not the question of choice of law) might be different depending upon whether or not the action involved the exercise of invested federal jurisdiction. However, in Pedersen Windeyer J. said (at pp.169-170):

"When the Judiciary Act makes the law of a State binding upon courts exercising federal jurisdiction within the State, the law thus designated is, it has been held, the whole body of the law of the State including the rules of private international law so far as applicable."

See also Musgrave, at pp.532, 543 and 547-548, but cf. Evatt and McTiernan JJ., at pp.550-551; Deputy Federal Commissioner of Taxation v. Brown (1958) 100 CLR 32, per Dixon C.J. at p 39; Parker, per Windeyer J. at p 306; Suehle v. The Commonwealth (1967) 116 CLR 353, per Windeyer J. at p 356.

15. The operation of the choice of law rules of private international law, whether by their own force in matters not involving the exercise of federal jurisdiction, or by force of s.79 in matters of federal jurisdiction, allows for the possibility that tortious liability (or the extent thereof) in respect of actions occurring in Australia may be determined by reference to different substantive laws depending upon the location or venue of the court in which action is brought. The undesirability of that possibility is obvious, not only in terms of its potential as an inducement to forum shopping, but in terms of perception of the law itself. It is not only undesirable, but manifestly absurd that the one set of facts occurring in the one country may give rise to different legal consequences depending upon the location or venue of the court in which action is brought. The problem of choice of law is akin to the problem of inconsistent State and Commonwealth laws applying to the one set of facts, which problem is resolved by s.109 of the Constitution.

16. In the course of argument several solutions were advanced in answer to the problem of choice of law in the adjudication of tortious liability for acts occurring in Australia but having an interstate aspect. The solution advanced on behalf of the appellant was the retention of the choice of law rule to be discerned from the actual decision in Anderson, but ameliorated by the adoption of the doctrine of forum non conveniens as enunciated by the House of Lords in Spiliada Maritime Corporation v. Cansulex Ltd. (1987) 1 AC 460, thus allowing a court to decline to exercise jurisdiction if another and more appropriate forum is available for the litigation of the matter. The respondents, supported by the Attorneys-General of New South Wales, Queensland and South Australia, preferred as a solution the adoption as a common law rule of the principles enunciated by Lord Wilberforce in Chaplin v. Boys. On behalf of the States of Victoria and Western Australia it was argued that the lex loci delicti should be adopted. On behalf of the Attorney-General of the Northern Territory it was urged that the solution was to be found in the full faith and credit provisions of s.118 of the Constitution and s.18 of the Recognition Act.

17. Notwithstanding that the operation of the choice of law rules may produce undesirable consequences in the adjudication of liability for tortious acts committed in Australia but involving an interstate aspect, a question arises whether the solution should be provided by judicial or by legislative intervention. We think this Court should not hesitate to depart from the existing choice of law rules if, on analysis, they prove to be unsatisfactory in point of legal principle. Leaving aside the larger constitutional questions which arise in consequence of the federal structure in Australia, it is our view that the rule that the lex fori determines liability for tortious acts committed in Australia but outside the law district of the forum, implicit in the actual decision in Anderson is, as a matter of legal principle, unsatisfactory.

18. In Anderson Kitto J. (at pp.28-29) decided the matter on the basis that the wrong which occurred in the Australian Capital Territory and which was the subject of an action commenced in New South Wales would not have been actionable if committed in New South Wales. His Honour therefore found it unnecessary to consider what law governed the question of liability. Barwick C.J. (at p.23) accepted and Taylor and Menzies JJ. (at pp.35 and 38-40 respectively) seem to have accepted that liability was to be determined by the application of the same rules as would be applied in the forum if the tort had been committed in the law district of the forum. No reason was assigned therefor, although Taylor J. referred to The "Halley" (1868) L.R. 2 P.C. 193. Windeyer J. (at pp.41-42) rested his decision in part upon the authority of The "Halley" and in part upon the decision in Koop, although, as we have previously noted, Koop was concerned with actionability and not choice of governing law.

19. In The "Halley" Selwyn L.J., speaking for the Privy Council, dismissed the notion of "vested rights" as determinative of liability in matters of private international law. The "vested rights" theory found some acceptance by Willes J. in Phillips v. Eyre, at least in relation to the question of actionability. In the latter case it was said (at p 28):

"The obligation is the principal to which a right of action in whatever court is only an accessory, and such accessory, according to the maxim of law, follows the principal, and must stand or fall therewith. 'Quae accessorium locum obtinent extinguuntur cum principales res peremptae sunt.' A right of action, whether it arise from contract governed by the law of the place or wrong, is equally the creature of the law of the place and subordinate thereto. The terms of the contract or the character of the subject-matter may shew that the parties intended their bargain to be governed by some other law; but prima facie, it falls under the law of the place where it was made. And in like manner the civil liability arising out of a wrong derives its birth from the law of the place, and its character is determined by that law."

54. This passage contemplates two methods of submission to jurisdiction: one statutory, the other voluntary (hence the expression "subject itself"). It thus supports the view that s.56 is not the only way in which the Commonwealth's common law immunity from suit is waived. Undoubtedly s.56 does waive that immunity but it does not do so exhaustively; waiver can also be achieved, apart from s.56, by the Commonwealth subjecting itself to jurisdiction.

55. Quite apart from authority, the Commonwealth Solicitor-General submitted that as a matter of principle there was no reason why the Commonwealth could not submit just like any other litigant. In my view the Commonwealth can voluntarily submit to jurisdiction. This conclusion does not contradict s.56. Section 56 simply achieves a statutory waiver of Commonwealth immunity. There is no inconsistency in concluding that over and above this statutory waiver the Commonwealth can, if it wishes, submit like any other litigant. After all, s.56 does not in its terms state that a plaintiff "shall only sue" in either the High Court or the Supreme Court of the place of the wrong, which it could have stated if it was intended to be an exhaustive provision dealing with waiver of immunity from suit.

56. Of the two cases opposed to this conclusion, it should be noted that the comments of Windeyer J. in Suehle were obiter. In addition, the observations of Connor J. in Coe were made without the benefit of argument. Neither judge referred to the judgment of Griffith C.J. in Baume which was relied upon in this case.

57. Section 56 must be considered in conjunction with s.39 of the Judiciary Act. The latter section invests the courts of the States with federal jurisdiction "in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it ...". There is an exception and there are conditions and restrictions, none of which is applicable here. In The Commonwealth v. Evans Deakin Industries Ltd. (1986) 161 CLR 254, at p 264 the majority commented:

"The Supreme Court is given jurisdiction to entertain a suit to which the Commonwealth is a party by the combined effect of s.39(2) of the Judiciary Act and s.75(iii) of the Constitution."

In the present case s.39(2) operates to confer jurisdiction on the Supreme Court of Victoria to entertain a claim against the Commonwealth. Notwithstanding s.56, the Commonwealth may submit to the jurisdiction of that Court and that is what it has done in the present case.

58. This conclusion makes it unnecessary to deal with a submission made by the Solicitor-General for South Australia that s.21 of the Telecommunications Act 1975 (Cth) may itself subject Telecom to the jurisdiction of the Supreme Court of Victoria. Section 21(1)(d) enables the Commission to "sue or be sued in its corporate name". However, it is unlikely that a section dealing with the constitution of the Commission should have been intended to place Telecom outside the operation of s.56 of the Judiciary Act.

59. In the case presently before the Court, the appellant was at the time of his accident resident in the Territory. So too were the first respondent and the second respondent, for whose alleged negligence the third respondent is sued vicariously. The no-fault scheme is expressly aimed at residents of the Territory in relation to accidents in the Territory; it does not purport to apply to those who are not resident when injured. The limitation on the right of Territory residents to claim damages cannot be described as merely procedural. Clearly it is a matter of substance. In the appellant's submission, the Act is concerned only to control actions for damages in the Territory and evinces no interest in restricting recovery in actions outside the Territory. This, I think, takes too simplistic a view of the legislation. Certainly, so far as is relevant to this appeal, the Act does not seek to have extra-territorial operation; but, equally, it does set out to limit severely the common law damages that may be recovered in the case of a resident who is injured in the Territory. That, no doubt, has a number of important implications both for injured persons and those who injure them. It is the Territory with which the accident and the parties, at the time of the accident, had a close connection. There was no connection with Victoria relevant to the commission of the tort.

60. Undoubtedly there are significant policy considerations in the selection of an appropriate law. Fawcett, "Policy Considerations in Tort Choice of Law" (1984) 47 Modern Law Review 650 suggests that these conditions may operate at a multinational level, a party level and a jurisprudential level. It is unnecessary to agree with the whole of the learned author's analysis to see that, in the present case, requiring civil liability between the parties according to the lex loci delicti in respect of the relevant claims made in the forum acknowledges the relationship between the Territory and Victoria, gives appropriate recognition to the law of the former, effects a proper balance of the interests of the parties including the prevention of forum shopping, and produces a rule which has reasonable certainty and ease of application. This approach also gives due recognition to the place of Victoria and the Territory within the Federal Commonwealth.

61. The argument on behalf of the appellant that if the forum chosen by him is not the natural or appropriate forum, his action may be stayed, is not sufficient. The question is not one of forum non conveniens; it is more deeply rooted than that.

62. The appeal should be dismissed.

Orders

Appeal dismissed with costs.