Con Nalpantidis v Andrew Stark No. SCGRG 92/914 Judgment No. 5362 Number of Pages 22 Private International Law (1995) 65 Sasr 454

[1995] SASC 5362

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA DOYLE CJ(1), BOLLEN(2) AND DEBELLE(3) JJ

CWDS
Private international law - choice of law - torts - Injury sustained in Victoria by admittedly careless driving - action in negligence taken in South Australia - legislative restrictions in Victoria imposing various requirements before proceedings brought or damages recovered at common law - application of rule in McKain v Miller - first limb of McKain test satisfied - statutory compensation available in Victoria not "of the kind" claimed to be enforced in South Australia - legislative declaration that restrictions are substantive is not conclusive - restrictions relate to entitlement to make a claim - common law cause of action made contingent on satisfaction of requirements - restrictions therefore substantive - no civil liability in law of the place of the tort - second limb of McKain test not satisfied.

Wrongs Act 1935 (SA) s35A; Transport Accident Act 1986 (Vic) 593, referred to. McKain v A W Miller and Co (SA) Pty Ltd (1991) 174 CLR 1; Breavington v Godleman (1988) 169 CLR 41; Chisholm v Pasminco Metals - BHAS Pty Ltd (NSW Court of Appeal, 24.7.1995, unreported); Stevens v Head (1993) 176 CLR 433; Wilson v Natrass (Victorian Full Court,16 May 1995, unreported, available on SCALE), applied.

HRNG ADELAIDE, 8-9 August 1995 #DATE 14:12:1995 #ADD 15:1:1996

Counsel for plaintiff:     Mr B Hayes QC with Mr M Kernot

Solicitors for plaintiff: Palios, Meegan and Nicholson

Counsel for defendant:     Mr M Livesey

Solicitors for defendant: Ward and Partners

Counsel for intervener:     Mr M Walter

Solicitors for intervener: Crown Solicitor

ORDER
Questions answered.

JUDGE1 DOYLE CJ The Court is asked to answer questions of law arising in an action and set out in a Case Stated by a Judge of the District Court of South Australia.

2. The plaintiff and the defendant are residents of South Australia. On 27 June 1990 the defendant drove the plaintiff in the defendant's motor car (registered under the Motor Vehicles Act (SA) and insured under that Act) on a short trip into the State of Victoria. While returning to South Australia on the same day the motor car, still being driven by the defendant, left the road and rolled over. The accident happened in Victoria. The plaintiff, by summons dated 13 December 1991 issued out of the District Court of South Australia, has claimed damages from the defendant for personal injuries allegedly sustained in the accident. The Summons alleges that the defendant was negligent. The parties have agreed that the plaintiff is to recover 85% of his damages (if any) to be assessed.

3. The defendant pleads that because the accident happened in Victoria:
    (1) The District Court of South Australia has no
    jurisdiction to try the action;

(2) The plaintiff's entitlement to damages (if any) must be
    determined by the law of Victoria, and in particular the
Transport Accident Act 1986 ("the TA Act");

(3) The plaintiff is not entitled to damages for negligence
under the TA Act, as to which the defendant relies in
particular on s93 of the TA Act.

(4) The plaintiff is entitled to claim compensation payments
(not damages) under certain provisions of the TA Act, but in
    fact no compensation is payable other than for medical
expenses pursuant to s60 of the TA Act.

4. Acting under s46A of the TA Act the Transport Accident Commission ("the TAC") has determined the plaintiff's degree of impairment in respect of the plaintiff's injury at 3%. The definitions in and provisions of the TA Act indicate that this assessment is made in relation to any physical or mental injury sustained (see in particular the definition of "injury" in s3(1)).

5. On these facts (set out more fully in the Case Stated) the District Court Judge has stated a series of questions, questions which might stimulate an enjoyable seminar for experts in the conflict of laws but which fill me with a sense of impending doom as I tackle the complexities which arise in this area of the law.

6. The questions are as follows:
    "(1) Does the plaintiff's claim arise out of circumstances
    of such a character that, if they had occurred within South
    Australia, a cause of action would have arisen entitling the
    plaintiff to enforce against the defendant a civil liability
    of the kind which he claims to enforce in South Australia?

(2) By the law of Victoria, does the claim arise out of
    circumstances which give rise to a civil liability of the
    kind which the plaintiff is claiming to enforce?

(3) Should Section 93 of the Transport Accident Act 1986
    (Victoria) ("the Victorian Act") be regarded as part of the
    substantive law of Victoria?

(4) Should the plaintiff's entitlement to damages and their
quantification be determined by reference to Section 93 of
    the Victorian Act?

(5) Do the provisions of Section 188 of the Constitution of
    Australia Act 1901, Section 18 of the State and Territorial
    Laws and Records Recognition Act 1901 and/or Section 2(1) of
    the Australia Act 1986 require that the District Court of
    South Australia determine the plaintiff's entitlement to
damages and their quantification by reference to Section 93
    of the Victorian Act?

(6) Is the plaintiff precluded from recovering damages inter
    alia:
    (a) by reason of the TAC's impairment assessment of 3%;
(b) by reason of the absence of a Section 93 Certificate.

(7) Is the "Court" to which the plaintiff may apply pursuant
to Section 93(4)(d) of the Victorian Act a Court of Victoria?

(8) Is the plaintiff entitled only to compensation in
    accordance with the Victorian Act?

(9) Should the plaintiff's entitlement to damages and their
    quantification be determined by reference to the law of South
    Australia?"

PRINCIPLES
7. The relevant law for this case was settled by the High Court in McKain v R W Miller and Co (SA) Pty Ltd (1991) 174 CLR 1. The majority judgment (Brennan, Dawson, Toohey and McHugh JJ) now states the Australian choice of law rules to be applied by other Australian courts to intranational torts, despite the dissents expressed by Deane J and Gaudron J in Stevens v Head
(1993) 176 CLR 433.

8. The principles are clear, whatever may be the difficulty of their application. They are as follows.

9. First, that the rules for resolving conflicts of laws in matters litigated in South Australia are furnished by the common law of South Australia, subject to any relevant statutory modification: McKain at 34-35. The only potentially relevant statutory provision of which I am aware is s38A of the Limitation of Actions Act (SA) which provides:
    "(1) A limitation law of the State is a substantive law of
    the State.

(2) A limitation law of another State or a Territory of the
    Commonwealth, or of New Zealand, is to be regarded as a
    substantive law of that place and applied accordingly."

10. However, as will emerge later, this case does not turn on limitation laws, and so s38A can be put to one side.

11. Secondly, the common law rules as formulated by Brennan J in Breavington v Godleman (1988) 169 CLR 41 at 110-111 were approved by the majority in McKain at 39. They are:
    "A plaintiff may sue in the forum to enforce a liability in
    respect of a wrong occurring outside the territory of the
    forum if - 1. the claim arises out of circumstances of such a
    character that, if they had occurred within the territory of
    the forum, a cause of action would have arisen entitling the
    plaintiff to enforce against the defendant a civil liability
    of the kind which the plaintiff claims to enforce; and 2. by
    the law of the place in which the wrong occurred, the
    circumstances of the occurrence gave rise to a civil
    liability of the kind which the plaintiff claims to enforce.

This restatement is narrower in expression than the
    traditional formulation of the Phillips v Eyre conditions
    which speak of 'a character that ... would have been
    actionable' and 'justifiable'. It defines more precisely the
    issues which are referred for determination to the lex fori
    and the lex loci respectively."

12. The majority went on to say (at 39) that the civil liability under the law of the place in which the wrong occurred must be a continuing liability, and accordingly if that civil liability were extinguished, as distinct from the bringing of the action being merely barred by a procedural provision, then the cause of action conferred by the common law of the forum was also extinguished.

13. Thirdly, the cause of action which is enforced under these rules is a cause of action under the law of South Australia as the law of the forum, although it is a cause of action which reflects the content of South Australian law applicable to events occurring in South Australia and the law of Victoria (on the present facts) applicable to events occurring in Victoria. This principle is drawn from McKain at 39 and Stevens at 453. See also Nygh, Conflict of Laws in Australia (6th ed) pp342-344.

14. Fourthly, matters of procedure are governed by South Australian law as the forum law. A Victorian provision which is found to be procedural rather than substantive will be disregarded; McKain at 39-44, Stevens at 456-457:
    "In determining whether, by the lex loci, the relevant facts
    give rise to a civil liability of the kind which the
    plaintiff seeks to enforce, the courts of the forum
    distinguish between substantive and procedural laws.
    Procedure is governed exclusively by the laws of the forum,
    but the substantive laws of the place of the tort determine
    whether, by those laws, there exists a civil liability of the
    kind which the plaintiff seeks to enforce."

15. Guidance in the application of the distinction is given by the majority judgments in McKain and Stevens and, in particular, the discussion of limitation statutes and laws affecting the quantification of damages.

16. Fifthly, it is implicit in the passages referred to that the law of South Australia must determine whether a Victorian provision or rule is substantive or procedural. There can be no doubt that South Australian law will determine what are its own procedural rules, when it is necessary to do so. But when deciding whether a Victorian law, such as a limitation provision, is substantive or procedural, how does South Australian law proceed? In my opinion the court must consider how the Victorian provision operates within the body of Victorian law, applying the forum's understanding of substance and procedure. This is how the matter appears to have been approached in McKain and Stevens, although the point did not arise. It follows that a provision such as s93(20) of the TA Act (set out below) cannot be conclusive, although it indicates the intention of the Victorian Parliament and must play a part in the forum's assessment of the provisions of s93.

17. In Chisholm v Pasminco Metals - BHAS Pty Ltd (Court of Appeal, New South Wales, 24 July 1995, (unreported, available on SCALE)) the Court considered s38A(1) of the Limitation of Actions Act (SA) which is set out above.

18. The Court held that despite this provision it would, in an action commenced in New South Wales, treat the relevant South Australian time limit as procedural. Sheller JA said (at pp5-6):
    "But a New South Wales Court in deciding whether a law is
    substantial or procedural applies New South Wales law ... The
    South Australian legislature cannot abrogate or override New
    South Wales conflict of laws rules ... accordingly, applying
    the law of the forum, the New South Wales Court was bound to
    treat the South Australian limitation as procedural and so
    not operating as a limitation of action in proceedings
    commenced in New South Wales."

19. I respectfully agree with the approach taken, but on the basis that the South Australian provision was not conclusive. The bare declaration was not treated as altering the manner in which the limitation provision operated, and that manner of operation had already been held in McKain to indicate that the limitation provision was procedural. I would not agree if it was intended to hold that the legislative declaration was irrelevant. It must, in my opinion, be taken into account in deciding how the limitation provision operates.

20. This is the approach which I propose to apply to s93(20).

21. This approach is not in conflict with the requirements of s118 of the Constitution. In McKain the majority rejected the view that s118 overrides the provisions of the forum law which would otherwise control the choice of law in a particular case. In Breavington Dawson J said (at 150):
"Section 118 of the Constitution is not directed to a
    conflict of laws; where there is a conflict it makes no
    choice or, to put it another way, does not require the
    application of a law which is not otherwise applicable."

22. The majority in McKain approved this statement. They said (at 37):
    "The selection of the applicable rules governing liability is
    the function of the common law; s118 provides for recognition
    by the courts of the power of the rules so selected."

23. It follows from this that South Australian common law choice of law rules (there being no relevant statutory rules) will in this case determine which Victorian rules are substantive and which are procedural. That is done by considering their operation, not by acting on a Victorian legislative conclusion or prescription on the very question which South Australian law must decide.

24. But, in a case of uncertainty, it may be relevant that the Victorian legislature has indicated that a provision is intended to have a substantive operation.

25. I turn now to the application of the two rules formulated in McKain. The first rule, as I will call it, involves the application of the forum law to the events on the assumption that they occurred within the territory of the forum. The second rule, as I will call it, involves the application of the law of the place (meaning the place of the tort) to the events which occurred there. But it is first necessary to identify the relevant aspects of the forum law (South Australian law) and the law of the place (Victorian law).

SOUTH AUSTRALIAN LAW
26. It is convenient to deal first with the South Australian law. A person injured in a motor vehicle accident in South Australia may claim damages for negligence from the person whose negligence caused the injury. The damages which may be awarded are regulated by s35A of the Wrongs Act. That section also contains provisions relevant to liability. One of them (s35A(1)(i)) was invoked in the present case. I will set out the leading provisions of s35A, omitting others and the definitions in the interests of brevity.
    "35A.(1) Notwithstanding any other law, where damages are to
    be assessed for or in respect of an injury arising from a
    motor accident, the following provisions apply:
    (a) no damages shall be awarded for non-economic loss
    unless -
     (i) the injured person's ability to lead a normal life was
     significantly impaired by the injury for a period of at
     least seven days; or
     (ii) the injured person has reasonably incurred medical
     expenses of at least the prescribed minimum in connection
     with the injury; and
    (b) if damages are to be awarded for non-economic loss, they
    shall be assessed as follows:
     (i) the injured person's total non-economic loss shall be
     assigned a numerical value on a scale running from 0 to 60
     (the greater the severity of the non-economic loss, the
     higher the number); and
     (ii) the damages to be awarded for non-economic loss shall
     then be calculated by multiplying the prescribed amount by
     the number assigned under subparagraph (i); and
    (c) no damages shall be awarded for mental or nervous shock
    except in favour of -
     (i) a person who was physically injured in the accident,
     who was the driver of or a passenger in or on a motor
     vehicle involved in the accident or who was, when the
     accident occurred, present at the scene of the accident; or
     (ii) a parent, spouse or child of a person killed, injured
     or endangered in the accident; and
    (d) if the injured person was incapacitated for work, no
    damages shall be awarded for loss of earning capacity in
    respect of the first week of the incapacity; and
    (e) if -
     (i) the injured person is to be compensated by way of a
     lump sum for loss of future earning capacity or other
     future losses; and
     (ii) an actuarial multiplier is used for the purpose of
     calculating the present value of the future losses,
    then in determining the actuarial multiplier a prescribed
    discount rate shall be applied; and
    (f) no damages shall be awarded to compensate for the cost
    of the investment or management of the amount awarded; and
    (g) no damages shall be awarded -
     (i) to allow for the recompense of gratuitous services
     except services of a parent, spouse or child of the injured
     person; or
     (ii) to allow for the reimbursement of expenses, other
     than reasonable out-of-pocket expenses, voluntarily
     incurred, or to be voluntarily incurred, by a person
     rendering gratuitous services to the injured person; and
    (h) damages awarded to allow for the recompense of
    gratuitous services of a parent, spouse or child shall not
    exceed four times State average weekly earnings; and
    (i) if the injured person (not being a person under the age
    of 16 years) was, contrary to the requirements of the Road
    Traffic Act 1961 not wearing a seat belt at the time of the
    accident, the damages to be awarded shall, on account of that
    contravention, be reduced by 15 per cent or such greater
    percentage as the court thinks just and equitable having
    regard to the extent to which the proper use of a seat belt
    would have reduced or lessened the severity of the injury;
    and
    (j) if -
     (i) the injured person (not being a person under the age
     of 16 years) was, at the time of the accident, a voluntary
     passenger in or on a motor vehicle; and
     (ii) the driver's ability to drive the motor vehicle was
     impaired in consequence of the consumption of alcohol or a
     drug and the injured person was aware, or ought to have
     been aware of the impairment,
    it shall be presumed that the injured person was negligent in
    failing to take sufficient care for his or her own safety,
    and the damages shall be reduced to such extent as may be
    just and equitable having regard to that negligence; and
    (k) no interest shall be awarded on damages compensating a
    non-economic or prospective loss; and
    ...

(2) Notwithstanding the limits fixed by subsection (1)(h),
    if the court is satisfied that by rendering gratuitous
    services a parent, spouse or child has saved or will save the
    injured person the cost of engaging another person to provide
    those services (those services being reasonably required by
    the injured person), the court may make an award of damages
    in excess of that limit but the damages awarded in that event
    must not reflect a rate of remuneration for the person
    providing the services in excess of State average weekly
    earnings."

VICTORIAN LAW
27. The TA Act is more complex. The TA Act provides for the payment of compensation to a person injured in a transport accident. "Transport accident" is defined by s3(1) to mean:
    "... an incident directly caused by the driving of a motor
    car or motor vehicle, a railway train or a tram."

28. The entitlement to compensation arises under s35(1) which provides:
    "(1) (Person injured) A person who is injured as a result
    of a transport accident is entitled to compensation in
    accordance with this Act if -
    (a) the accident occurred in Victoria; or
    (b) the accident occurred in another State or in a Territory

    and involved a registered motor vehicle and, at the time of
    the accident, the person was -
     (i) a resident of Victoria; or
     (ii) the driver of, or a passenger in, the registered
     motor vehicle."

29. I do not need to concern myself with the question of the impact of s117 of the Constitution on the provision: cf Street v Queensland Bar Association
(1989) 168 CLR 461; Goryl v Greyhound Australia Pty. Limited (1994) 179 CLR
463. The TA Act goes on to provide for the circumstances in which a claim to compensation arises and, in Division 3 of Part 2, for the various types of compensation payable and the amount payable. The TAC pays compensation to persons entitled and, subject to an appeal procedure, decides upon claims made to it for compensation. The TAC must, by s46A, determine the degree of impairment, expressed as a percentage, of a person injured as a result of a transport accident and who appears to be or to be likely to be entitled to an impairment benefit. This must be done within a specified time after an accident. An earlier assessment may be made, on application, under s47(7) or s47(7A). Payments are made by the TAC on the basis of the impairment assessment.

30. This is but a brief description of the compensation scheme.

31. The TA Act allows damages to be recovered in respect of injury as a result of a transport accident. The relevant provisions are found in s93, which provides as follows (I omit certain provisions relating to death claims):
    "93(1) (after 1 January 1987) A person shall not recover
    any damages in any proceedings in respect of the injury or
    death of a person as a result of a transport accident
    occurring on or after the commencement of section 34 except
    in accordance with this section.

93(2) (Serious injury) A person who is injured as a result
    of a transport accident may recover damages in respect of the
    injury if -
    (a) the Commission has determined the degree of impairment
of the person under section 46A, 47(7) or 47(7A); and
    (b) the injury is a serious injury.

93(3) (Deemed serious) If -
(a) under section 46A, 46(7) or 47(7A), the commission has
    determined the degree of impairment of a person who is
    injured as a result of a transport accident; and
    (b) the degree so determined is 30 per centum or more -
    the injury is deemed to be a serious injury within the
    meaning of this section.

93(4) (Less than 3%) If -
(a) under section 46A, 46(7) or 47(7A), the commission has
    detriment the degree of impairment of a person who is injured
    as a result of a transport accident; and
    (b) the degree so determined is less than 30 per centum -
    the person may not bring proceedings for the recovery of
    damages in respect of the injury unless -
    (c) the Commission -
     (i) is satisfied that the injury is a serious injury; and
     (ii) issues to the person a certificate in writing
     consenting to the bringing of the proceedings; or
    (d) a court, on the application of the person, gives leave
    to bring the proceedings.

93(5) (Service of copies) A copy of an application under
    sub-section 4(d) must be served on the Commission and on each
    person against whom the applicant claims to have a cause of
    action.

93(6) (Must be serious) A court must not give leave under
    sub-section (4)(d) unless it is satisfied that the injury is
    a serious injury.

93(7) (Limits on recovery) Damages of any kind in respect
    of an injury cannot be recovered in proceedings in accordance
    with sub-sections (2), (3) and (4) other than damages -
    (a) for pecuniary loss but only if -
     (i) the assessment of damages before any reduction in
     respect of the person's responsibility for the injury is
     more than $30,520 but less than $686,840, in which case the
     amount that can be recovered is that amount so assessed as
     reduced first under sub-section (11) and secondly in
     respect of the person's responsibility for the injury; or
     (ii) the assessment of damages before any reduction in
     respect of the person's responsibility for the injury is
     more than $686,840, in which case the amount that can be
     recovered is $686,840 as reduced first under sub-section
     (11) and secondly in respect of the person's responsibility
     for the injury;
    (b) for pain and suffering but only if -
     (i) the assessment of damages before any reduction in
     respect of the person's responsibility for the injury is
     more than $30,520 but less than $305,250, in which case the
     amount that can be recovered is that amount so assessed as
     reduced first under sub-section (11) and secondly in
     respect of the person's responsibility for the injury; or
     (ii) the assessment of damages before any reduction in
     respect of the person's responsibility for the injury is
     more than $305,250, in which case the amount that can be
     recovered is $305,250 as reduced first under sub-section
     (11) and secondly in respect of the person's responsibility
     for the injury.
    ...

93(10) (Damages excluded) Damages awarded to a person under
    this section shall not include damages in respect of -
    (a) in the case of an award of pecuniary loss damages under
    sub-section (7), any pecuniary loss suffered in the period of
    18 months after the transport accident; or
    (b) any loss suffered or that may be suffered as a result of
    the incurring of costs or expenses of a kind referred to in
    section 60; or
    (c) the value of services of a domestic nature or services
    relating to nursing and attendance -
     (i) which have been or are to be provided by another
     person to the person in whose favour the award is made; and
     (ii) for which the person in whose favour the award is
     made has not paid and is not and will not be liable to pay.

93(11) (Compensation deducted from personal injury damages)
    Damages under sub-section (7) are to be reduced -
    (a) in the case of damages for pecuniary loss -
     (i) if the person was entitled to compensation under this
     Act, by the amount of compensation paid in respect of the
     injury under sections 49, 50, and 51; or
     (ii) if the person was not entitled to compensation under
     this Act because of section 37, by the amount of any
     compensation paid in respect of lost earnings other than
     earnings lost in the first 18 months after the transport
     accident; and
    (b) in the case of damages for pain and suffering -
     (i) if the person was entitled to compensation under this
     Act, by the amount of compensation paid in respect of the
     injury under sections 47, 48 and 54; or
     (ii) if the person was not entitled to compensation under
     this Act because of section 37, by the amount of any
     compensation paid otherwise than in respect of lost
     earnings or other pecuniary loss.
    ...

93(12) (Costs) Subject to the discretion of the court -
    (a) in proceedings relating to an application for leave of
    the court under sub-section (4)(d) - costs are to be awarded
    against a party against whom a decision is made; and
    (b) in proceedings for the recovery of damages in accordance
    with this section -
     (i) if no liability to pay damages is established, costs
     are to be awarded against the claimant; and
     (ii) if damages are assessed but cannot be awarded under
     this section, each party bears its own costs; and
     (iii) if damages are awarded, costs are to be awarded
     against the defendant.
    ...

93(13) (Discount rate) Where an award of damages in
    accordance with this section is to include compensation,
    assessed as a lump sum, in respect of damages for future loss
    which is referable to -
    (a) deprivation or impairment of earning capacity; or
    (b) loss of the expectation of financial support; or
    (c) a liability to incur expenditure in the future -
    the present value of the future loss must be qualified by
    adopting a discount rate of 6 per centum in order to make
    appropriate allowance for inflation, the income from
    investment of the sum awarded and the effect of taxation on
    that income.

93(14) (Other law re discount) Except as provided by
    sub-section (13), nothing in that sub-section affects
    any otherlaw relating to the discounting of sums awarded
    as damages.

93(15) (Interest) A court must not, in relation to an award
    of damages in accordance with this section, order the payment
    of interest, and no interest shall be payable, on an amount
    of damages, other than damages referable to loss actually
    suffered before the date of the award, in respect of the
    period from the date of the death of or injury to the person
    in respect of whom the award is made to date of the award.

93(16) (Other law re interest) Except as provided by
    sub-section (15), nothing in that sub-section affects
    any other law relating to the payment of interest on
    an amount of damages, other than special damages.

93(17) (Definitions) In this section -
    'pain and suffering damages' means damages for pain and
    suffering, loss of amenities of life or loss of enjoyment of
    life;

'pecuniary loss damages' means damages for loss of earnings,
    loss of earning capacity, loss of value of services or any
    other pecuniary loss or damage;

'serious injury' means -
    (a) serious long-term impairment or loss of a body function;
    or
    (b) permanent serious disfigurement; or
    (c) severe long-term mental or severe long-term behavioural
    disturbance or disorder; or
    (d) loss of a foetus.

93(18) (Other rights) Nothing in sub-section (1) -
    (a) affects a right to compensation under this Act or an Act
    or enactment referred to in section 37 or 38; or
    (b) applies to the recovery of damages in respect of a
    transport accident involving an organized motor vehicle race
    or speed trial or a test in preparation for such a race or
    trial by a person who, by reason of section 41, is not
    entitled to compensation in accordance with this Act in
    respect of that accident; or
    (c) applies to the recovery of damages in respect of a
    transport accident to which section 41A or 41B applies by a
    person who, by reason of that section, is not entitled to
    compensation in accordance with this Act in respect of that
    accident.

93(19) (Accrual of cause of action) Notwithstanding
    anything to the contrary in this Act, for the purposes of the
Limitation of Actions Act 1958, the cause of action in
    respect of an injury arises on the day of the transport
    accident or on the day on which the injury first manifests
    itself.

93(20) (Section 93 substantive) For the avoidance of doubt
    it is hereby declared that all the provisions of this section
    contain matters that are substantive law and are not
    procedural in nature."

32. It is clear that s93 contemplates a claim for damages for negligence. This is the view which the Supreme Court of Victoria has taken: Wilson v Nattrass (Unreported - Full Court, 16 May 1995) Brooking J at p1, Ashley J at p23, Hedigan J at p6. The various restrictions imposed by s93 do not alter the fact that a plaintiff who can satisfy those restrictions recovers, ultimately, upon proof of negligence in the usual way.

FIRST RULE
33. If the circumstances out of which the claim arises had occurred in South Australia, a cause of action would have arisen entitling the plaintiff to enforce against the defendant a claim for damages for negligence, the damages being in respect of the plaintiff's injuries.

34. That is the same kind of civil liability which the plaintiff now claims to enforce. I assume that the plaintiff accepts that his damages will be assessed in accordance with the provisions of the Wrongs Act if he can satisfy the second rule. In my opinion that in any event is the position in light of the third principle above. The plaintiff cannot recover more than South Australian law would allow if the circumstances occurred in this State.

SECOND RULE
35. In the circumstances which occurred, the only claims available to the plaintiff were a claim for compensation under Division 2 of Part 3 of the TAC Act and a damages claim if available in light of the provisions of s93 of the TAC Act.

36. In my opinion the compensation claim is not a civil liability of the kind which the plaintiff claims to enforce in South Australia, nor was this contended. The entitlement to compensation does not require proof of negligence, the entitlement is exercised against the TAC, and the assessment of compensation bears no relationship to the assessment of damages at common law and subject to the provisions of the Wrongs Act.

37. If the plaintiff claimed damages from the defendant in Victoria, would the plaintiff be enforcing a civil liability of the kind which he enforces in South Australia?

38. If the answer is in the affirmative, has that liability been extinguished? No extinguishing event has been pleaded or suggested: cf McKain at 39. The proceedings were issued just under eighteen months after the accident. The proceedings were brought within time under Victorian law (cf Limitation of Actions Act (Vic) s5(1)(a)), and so even if the Victorian limitation were substantive it has not extinguished the liability.

39. Accordingly, the critical question is the nature of the civil liability, if any, which arose under Victorian law as a result of the accident.

40. The defendant's answer to this question is twofold. First, that s93 of the TA Act has extinguished common law liability and replaced it with a hybrid cause of action, partly statutory and partly common law. This cause of action is said not to produce a liability of the same kind as that which is enforced under South Australian law. Secondly, that in any event the circumstances did not give rise to any civil liability on the part of the defendant because the plaintiff is unable to make a claim because he cannot satisfy or has not satisfied the requirements of s93. It is necessary to consider each of these contentions.

41. It is necessary to note certain agreed facts. I have already noted that the TAC has determined the plaintiff's degree of impairment in respect of the plaintiff's injury at 3%. The TAC has refused to issue a certificate pursuant to s93(4)(c) that it is satisfied that the plaintiff's injury is a serious injury, and accordingly has not consented to the bringing of proceedings claiming damages. The plaintiff has not applied to any court under s93(4)(d) for leave to bring proceedings claiming damages. The Court was not asked to consider whether a South Australian court could, relying directly on s93(4) or on cross-vested jurisdiction, grant leave under sub-section (4).

42. The second rule, and the defendant's submissions, require consideration of the liability for damages which would arise under Victorian law if the accident had happened in Victoria. Is the liability for damages which s93 of the TA Act assumes and regulates, a civil liability of the same kind as that which the Wrongs Act assumes and regulates?

43. In answering this question one must have regard only to such provisions of the law of the place as are part of its substantive law, and disregard procedural laws of the place: McKain at 456-457:
    "In determining whether, by the lex loci, the relevant facts
    give rise to a civil liability of the kind which the
    plaintiff seeks to enforce, the courts of the forum
    distinguish between substantive and procedural laws.
    Procedure is governed exclusively by the laws of the forum,
    but the substantive laws of the place of the tort determine
    whether, by those laws, there exists a civil liability of the
    kind which the plaintiff seeks to enforce."

44. If the accident had happened in Victoria it would have been a transport accident as defined by the TA Act. But the plaintiff would be able to recover damages only if two preliminary conditions were met. First, the TAC must determine the degree of impairment: s93(2)(a). In the present case this condition has been satisfied. Secondly, the injury must be a serious injury: s93(2)(b). The degree of impairment in the present case is less than 30%, and so the injury is not deemed to be a serious injury: s93(3). The plaintiff has not obtained a certificate from the TAC pursuant to s93(4)(c), nor has the plaintiff been given leave to bring proceedings under s93(4)(d) on the basis that a court is satisfied that the injury is a serious injury - see s93(6) and
(17).

45. If the plaintiff satisfies these preliminary conditions the plaintiff "may recover damages in respect of the injury", but the amount of those damages is regulated by sub-section (7) and subsequent provisions of s93. These later provisions, in my opinion, merely govern the quantification of damages. Admittedly the language used in s93(7) - "Damages ... cannot be recovered ..." - might suggest an intent to strike at the liability, but taken as a whole the later provisions of s93 seem to me to assume a liability for damages and merely to direct the court how to exercise its power to award damages: cf Stevens at 459-460. That being so, I do not think that s93(20) can alter the position, for the reasons indicated above. If I am wrong in that, and some of them deny a remedy in respect of a particular head of damages and so are substantive and control the damages recoverable in South Australia, they do not so transform the cause of action in Victoria as to lead to the conclusion that the liability under Victorian law is not of the same kind as that arising under South Australian law.

46. It follows, in my opinion, that the critical question is whether the requirement that the TAC make a determination and the further requirement that the injury be deemed a serious injury or that a certificate be obtained or that leave be granted under s93(4) are matters of substance, not mere procedure.

47. The language of these provisions is consistent with a substantive effect, because they deny a right to recover any damages unless the conditions are satisfied. And these provisions do not, in contrast to s93(7), have a meaningful operation only when a court is in the process of quantifying damages. They are conditions to be met before a claim for damages can be entertained, although presumably leave could be sought under s93(4)(d) in the proceedings in which a claim for damages was made. But, until leave is granted, there seems to be no liability, or at most a contingent liability. It is also relevant to note that the requirements of sub-sections (2)-(6) form no part of the cause of action which exists if they are satisfied, and no part of the process of quantification of damages. They are in every respect antecedent matters: see Wilson v Nattrass, Brooking J at pp2-4, and the cases cited there. Putting the matter a little differently, these provisions do not give any direction to a court relating to the process or manner of quantifying damages, they relate to the entitlement to make a claim at all. And that entitlement depends upon the performance of an administrative function under the TA Act by the TAC, and a particular outcome of that process (an impairment of 30 per centum or more) or a further decision either by the TAC or by a court.

48. In my opinion these considerations suggest that the effect of sub-sections (2)-(6) is to make contingent the common law cause of action for damages for injury sustained in a transport accident, and to lead to the conclusion that they are substantive: cf Stevens at 457.

49. It may be objected to this tentative conclusion that the provisions are procedural because they do no more than establish a procedure to be followed by a claimant for damages. I acknowledge that the requirements of these provisions can be called a procedure, for such they are. But difficult as it may be, there is a distinction between right and remedy, between substance and procedure, and McKain (esp. at 40-44) requires that distinction as traditionally understood to be observed, despite the criticisms (which I respectfully find quite persuasive) and alternative approach expressed by Mason CJ in McKain at 18-27. To call the process which the provisions require a procedure is not to draw the relevant distinction.

50. These provisions do not operate when the transport accident happens or when the injury is suffered, but at a later time. And they do assume the existence of a right to claim damages, the right and its incidents being found elsewhere. But they prevent the exercise of the right unless their conditions are met. Moreover, they do so in terms which suggest that it is beyond the power of a defendant to waive their effect. It is not that the language is imperative - the same might be said of the language found in the Limitation of Actions Act. The significant thing is the denial of the recovery of damages, as distinct from the traditional limitation approach of stipulating a time within which to take a procedural step, albeit a significant one. Nor is there a body of case law, as there is with limitation provisions, supporting the conclusion that such provisions are procedural: cf Commonwealth v Verwayen
(1990) 170 CLR 394 at 405 Mason CJ. The provisions do not deal with the topic of procedure - the time and manner of enforcing in a court the liability to pay damages for personal injury. They deal with something unrelated to such proceedings, even though one of the features of the provisions is the power of a court to grant leave under s93(4)(d).

51. In my opinion the correct conclusion is that sub-sections (2) to (6) are substantive provisions, not procedural provisions, and their effect is to make contingent (upon their satisfaction) the common law cause of action for damages for injury suffered as a result of a transport accident. To that extent I agree with the approach taken in Wilson v Nattrass by Ashley J (pp20-21) and Hedigan J (pp4-6), in preference to the approach taken by Brooking J. In Wilson v Nattrass the accident occurred in South Australia and the proceedings were instituted in Victoria. The court was concerned with the application of the first rule, but in the respect indicated my approach is the same as the approach of the majority.

52. Were the plaintiff in the present case able to meet the requirements of sub-sections (2) to (6), the question would arise of whether the liability which arose was a liability of the same kind as that which would arise under South Australian law if the circumstances had occurred in South Australia. In Wilson v Nattrass Ashley J apparently (p23-24 and 26) and, more clearly Hedigan J (p7), expressed the view that once the requirements of sub-sections
(2) to (6) were met, the civil liability which arose was a liability of the same kind as that which would have arisen under South Australian law if the circumstances occurred in South Australia. I am inclined to agree.

53. But it is not necessary to answer that question in the present case. The plaintiff, on the facts in the Case Stated, has no right under Victorian law to claim damages for his injury. Or, to put it more precisely, by the law of Victoria where the accident happened and the injury was sustained, there is no civil liability for injury on the part of the defendant to pay damages for that injury. The liability would arise if the conditions of sub-sections
(2)-(6) were satisfied, but these provisions are not procedural requirements to be disregarded by South Australian law. This is not, to my mind, a case in which a civil liability has been extinguished. It is a case in which a circumstance essential under the law of the place to the existence of the civil liability has not been established.

54. It is implicit in the rule formulated by Brennan J in Breavington (cf 110-111) and approved by a majority in McKain (at 39) that the plaintiff must be able to show that, under the law of the place, a civil liability in fact had arisen. It is not enough to show that had certain other events occurred a civil liability might have or would have arisen.

55. In my opinion it is necessary to apply the second rule to the circumstances as they stand when the court is asked to apply the rule. It may well be, as Ashley J held in Wilson v Nattrass (p17), that the first rule is to be applied as at the time of the institution of the proceedings. But the present case illustrates that the second rule may require consideration of later events. If the plaintiff had obtained leave under s93(4)(d) after instituting his proceedings in South Australia, I consider that they would be valid proceedings, even though liable to be struck out or dismissed until the obtaining of that leave.

56. It follows that I accept the second of the defendant's answers to the question arising under the second rule, but am inclined (without deciding) to reject the first answer advanced by the defendant.

57. The plaintiff's submission was that s93 of the TA Act was wholly procedural, and related merely to the remedy available to expose the civil liability for damages for the injury sustained. I reject that submission, although as I have indicated I accept it in relation to some of the provisions of s93.

THE "FLEXIBLE EXCEPTION" 58. Since preparing these reasons I have had the benefit of reading the reasons in draft of Debelle J.

59. The approach which His Honour takes was not raised by or during the course of the submissions of either party nor by the intervener. Not having had the benefit of submissions on the point, I am not inclined to express a view upon the availability as a matter of law of the so-called "flexible exception" nor upon its application to the present case. The parties chose to present the case upon a different basis, and while that does not bind the Court, I do not think that it is appropriate to depart from that basis without the benefit of submissions.

60. It follows, that my reasons should not be read as rejecting the approach taken by Debelle J.

61. I would answer the questions in the Case Stated as follows:
    (1) Yes.

(2) By the law of Victoria, on the basis of the agreed facts
    the circumstances of the occurrence have given rise to no
    civil liability on the part of the defendant for damages for
    the injury sustained by the plaintiff.

(3) Yes, but in part only.

(4) Not necessary to answer, because the plaintiff has no
    entitlement to damages in South Australia.

(5) Not necessary to answer.

(6) (a) No, because a degree of impairment determined at
    less than 30% does not itself mean that a liability for
    damages does not arise.
    (b) Yes, unless (which is not the case) the plaintiff has
    obtained leave to bring proceedings for damages under
s93(4)(d).

(7) Not necessary to answer.

(8) Yes, on the basis of the agreed facts.

(9) No, not by reference only to the law of South Australia.

JUDGE2 BOLLEN J I concur in the answers proposed by the Chief Justice.

JUDGE3 DEBELLE J A judge of the District Court has stated a case for the consideration of this Court seeking determination of certain questions. The facts giving rise to the case stated, the relevant statutory provisions, and the questions are recited in the judgment of the Chief Justice.

2. It will be noticed at the outset that these proceedings arise out of an accident in which only one car was involved; that the plaintiff passenger and the defendant driver both reside in Port McDonnell which is not far from the border between South Australia and Victoria; that the plaintiff and defendant drove to Victoria for a short trip and were in Victoria for less than one day; that the plaintiff and defendant were returning home to Port McDonnell in the defendant's motor car when the accident occurred; and that the car was the subject of a policy of comprehensive third party insurance issued by the State Government Insurance Corporation of South Australia. This combination of facts provides, therefore, a very close connection with South Australia. The only factor which is not connected with South Australia is the fortuitous event that the accident occurred in Victoria. There is no suggestion of forum shopping.

3. The rule for determining a plaintiff's right to sue in a court of a State or Territory for a tort alleged to have been committed in another State or Territory was stated by the majority in McKain v R W Miller and Co (SA) Pty Ltd (1991) 174 CLR 1 at 39 by Brennan, Dawson, Toohey and McHugh JJ in these terms:
    "`A plaintiff may sue in the forum to enforce a liability in
    respect of a wrong occurring outside the territory of the
    forum if - 1. the claim arises out of circumstances of such
    a character that, if they had occurred within the territory
    of the forum, a cause of action would have arisen entitling
    the plaintiff to enforce against the defendant a civil
    liability of the kind which the plaintiff claims to enforce;
    and 2. by the law of the place in which the wrong occurred,
    the circumstances of the occurrence gave rise to a civil
    liability of the kind which the plaintiff claims to enforce.

This restatement is narrower in expression than the
    traditional formulation of the Phillips v Eyre conditions
    which speak of "a character that ... would have been
    actionable" and "justifiable". It defines more precisely the
    issues which are referred for determination to the lex fori
    and the lex loci respectively.'

The reasons for judgment of Dawson J in Breavington v.
    Godleman (1988) 169 CLR esp. at 146-147 and in the
associated case of Perrett v. Robinson (1988) 169 CLR 172,
    at 186 accord with this formulation. It is, we think, the
    appropriate formulation in respect of intranational torts
    though the present case suggests a need for a qualification
    or refinement next to be mentioned."

4. The rule was reiterated in Stevens v Head (1993) 176 CLR 433. In Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463, Mason CJ, Deane and Gaudron JJ, who had dissented in McKain, stated that so long as the decisions in McKain and Stevens v Head stood, they must faithfully be applied by the courts of this country.

5. The rule as stated in McKain is based on the rule in Phillips v Eyre
(1870) LR 6 QB 1. But as Brennan J noted in Breavington v Godleman (1988) 164 CLR 41 at 111, the statement of the rule is narrower in expression than the traditional formulation in Phillips v Eyre. In Breavington v Goldman, Brennan and Dawson JJ acknowledged that the operation of the rule might lead to difficulty but concluded that the narrowing of the rule was justified by the constitutional framework of this country and the desirability of a rule which discouraged forum shopping: see Brennan J at 112 and Dawson J at 145-148.

6. There is no difficulty in this case with the first limb of the rule. The plaintiff sues in negligence and that is a cause of action which may be maintained under the law of South Australia. It is the second limb of the rule which gives rise to the issues in this action. There is much to be said for the conclusion that the plaintiff fails to satisfy the second limb of the rule. But I prefer not to express a final view on that issue since the unusual facts of this case enable an alternative approach.

7. In Breavington v Goldman Toohey J had preferred a more flexible approach, adopting the reasons of Lord Wilberforce in Chaplin v Boys (1971) AC 356, at 387-392. In that decision, Lord Wilberforce had noted (at 389) the conflict between the desire for certainty and simplicity in the law on the one hand and the need for "flexibility in the interests of individual justice" on the other. His Lordship concluded that in a limited kind of case it was appropriate to recognise an exception to the second limb of the rule in Phillips v Eyre. His Lordship referred to a number of decisions in the United States of America and in particular to Babcock v Jackson (1963) 2 Lloyds Rep 286. In that case both the plaintiff and defendant resided in New York. The plaintiff was a passenger in a car and driven by the defendant which was involved in an accident in Ontario, Canada in the course of a weekend trip. The law of Ontario excluded any liability of the driver to his passenger but the law of New York (the lex fori) did not. The plaintiff was allowed to recover. As Lord Wilberforce noted at 390, the basic law, as accepted in New York and elsewhere in the United States of America, was the lex delicti but the judgment of the court established a principle equally applicable whatever the basic law might be.
    "Justice, fairness and `the best practical result'... may
    best 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":
    Babcock v Jackson (supra) at 289.

8. Lord Wilberforce then referred to the general principles set out in the American Law Institute Restatement (2nd) Conflict of Laws (proposed official draft, May 1, 1968). He summarised it in these terms (at 390-391):
    "This states as the general principle that rights and
    liabilities of the parties with respect to an issue in tort
    are determined by the local law of the state, which, as to
    that issue, has the most significant relationship to the
    occurrence and the parties, and that separate rules apply to
    different kinds of torts. The importance of the respective
    contacts is to be evaluated according to their relative
    importance with respect to the particular issue, the nature
    of the tort, and the purpose of the tort rules involved. In
    an action for a personal injury the local law of the state
    where the injury occurred (the basic rule in the United
    States of America) determines the rights and liabilities of
    the party, unless with respect to the particular issue
    (emphasis supplied) some other state has a more significant
    relationship with the occurrence and the parties, in which
    event the local law of the other state will be applied (see
    p146)." Lord Wilberforce approved the principle stating (at 391):
    "This formulation has what is very necessary under a system
    of judge-made law, the benefit of hard testing in concrete
    applications... There must remain great virtue in a general
    well-understood rule covering the majority of normal cases
    provided that it can be made flexible enough to take account
    of the varying interests and considerations of policy which
    may arise when one or more foreign elements are present." Lord Wilberforce applied this qualification to resolve the question in Chaplin v Boys. He said (at 392):
    "The tort here was committed in Malta; it is actionable in
    this country. But the law of Malta denies recovery of
    damages for pain and suffering. Prima facie English law
    should do the same: if the parties were both Maltese
    residents it ought surely to do so; if the defendant were a
    Maltese resident the same result might follow. But in a case
    such as the present, where neither party is a Maltese
    resident or citizen, further inquiry is needed rather than an
    automatic application of the rule. The issue, whether this
    head of damage should be allowed, requires to be segregated
    from the rest of the case, negligence or otherwise, related
    to the parties involved and their circumstances, and tested
    in relation to the policy of the local rule and of its
    application to these parties so circumstanced ...

The rule limiting damages is the creation of the law of
    Malta, a place where both plaintiff and defendant were
    temporarily stationed. Nothing suggests that the Maltese
    state has any interest in applying this rule to persons
    resident outside it, or in denying the application of the
    English rule to these parties. No argument has been
    suggested why an English court, if free to do so, should
    renounce its own rule. That rule ought, in my opinion, to
    apply."

9. Toohey J believed that this flexible approach should be adopted in Australia but not at the expense of undermining the general rule. Referring to Lord Wilberforce's observation (at 391) that "the general rule should not apply unless clear and satisfying grounds are shown" Toohey J added in Breavington v Godleman at 163:
    "It is only in special circumstances where, after examination
    of the policy underlying the law which may be applied and the
    interests of the parties to be affected, it is clear that the
    lex loci delicti has no real connexion with the proceedings,
    that the exception can be invoked, enabling a plaintiff to
    recover damages available in the lex fori but not available
    in the lex loci delicti. Such a requirement should do much
    to alleviate any fears that unacceptable uncertainty will be
    introduced into this area of the law."

10. In McKain v R W Miller and Co (SA) Pty Ltd, it was recognised by the majority that it was necessary to qualify the rule as it had been formulated by Brennan and Dawson JJ in Breavington v Godleman. Although a majority of the court in Breavington v Godleman may not have favoured the flexible approach formulated by Lord Wilberforce and adopted by Toohey J, I do not think that a majority of the High Court has rejected it. In the reasons of the majority in McKain, express reference was also made to the flexible exception. As I understand their reasons, the majority did not state that the exception should not apply. Instead, their Honours took the view that it could only apply in circumstances which "would be out of the ordinary in cases of intranational torts": McKain (supra) at 38.

11. This is a case calling for the operation of the flexible exception to the rule as it was formulated in McKain. It can fairly be described as a case which is "out of the ordinary in intranational torts". I have already referred to the circumstances which make it an extraordinary case. It is appropriate to restate them. The plaintiff suffered his injuries when the car in which he was a passenger overturned. No other vehicle was involved in the accident. The car is the subject of a policy of compulsory third party insurance issued by the State Government Insurance Corporation of South Australia. Both the plaintiff and defendant reside in South Australia. The accident occurred in the course of a short trip from South Australia to Victoria. It was a kind of temporary short visit made to another State by many who reside near a State boundary. The only connection with Victoria is the fortuitous event that the accident happened in Victoria. There is no suggestion of forum shopping. The interests of justice require that this action be heard by a court in South Australia and determined by the law of South Australia. It is relatively rare for an action to be brought in a Court of one State for injuries received in an accident in another State involving one car only where the plaintiff and defendant both reside in the State in which the action is brought and the car is insured in the State in which both parties reside. However viewed, these are special and extraordinary circumstances which attract the operation of the exception. To allow an exception of this kind will not result in any unacceptable uncertainty being introduced to the rule as it was stated by the majority in McKain.

12. Further, the interests of South Australia are more clearly associated with the issues in this action than the interests of the State of Victoria. The legislative policy of Victoria in relation to compensation for those injured in motor vehicle accidents has little, if any, application to residents of another State temporarily visiting Victoria when no other motor car is involved in the accident.

13. Finally, South Australia is the natural forum. There is no hint of forum shopping. The rule as stated in McKain might have to apply with its full rigour in a case where the action is brought in the court of a State which has no obvious connection with the circumstances of the act complained of: cf Adam J in Corcoran v Corcoran (1974) VR 164, 171-172. There are three reported decisions in State Supreme Courts which apply the flexible approach of Lord Wilberforce. They are Corcoran v Corcoran (supra), Kemp v Piper

(1971) SASR 25 and Borg Warner (Australia) Ltd v Zupan (1982) VR 437. In the first two decisions one vehicle only was involved in the collision and the parties were both temporarily in another State. In Kolsky v Mayne Nickless Ltd (1970) 72 SR (NSW) 437 the Court of Appeal in New South Wales refused to apply the exception. However, in that case two vehicles were involved in the motor accident which gave rise to the claim for damages and the parties were resident in two different States.

14. For these reasons, the plaintiff is entitled to prosecute this action in the District Court.

15. The question as to the law to be applied in determining the issues in the District Court is now well settled. Where the plaintiff is entitled to sue in one State for a wrong committed in another, the law to be applied is the law of the State in which the plaintiff sues, namely, the lex fori, whether the action be one which is permitted under the rule as stated in McKain or be one which falls within the flexible exception to that rule: McKain v R W Miller and Co (SA) Pty Ltd (supra); Stevens v Head (supra); Gardner v Wallace (unreported, High Court of Australia, Dawson J, 10 November 1995); and Chaplin v Boys (supra) per Lord Wilberforce at 387-392.

16. The questions in the case stated have been formulated by reference to the rule as stated in McKain v R W Miller and Co (SA) Pty Ltd. No regard has been had to the possibility of Lord Wilberforce's exception. I do not think that the form of the case stated precludes the Court from answering the questions in a way which gives effect to that exception. As a general rule, the Court is confined to the specific questions stated for its determination especially where all of the facts necessary for the decision may not be before the Court or a party may be taken by surprise: Burke v Yurilla SA Pty Ltd (1991) 56 SASR 382, 391. None of these considerations are present in this case and the answer can be given within the framework of the questions in the case stated. Further, the desirability of avoiding unnecessary litigation reinforces the desirability of doing so.

17. For these reasons I would answer the questions in the case stated as follows.
    1. Yes.

2. Not necessary to answer. The action may, nevertheless,
    be maintained in South Australia.

3. Not necessary to answer.

4. No

5. No.

6. No.

7. Not necessary to answer.

8. No.

9. Yes.