John Pfeiffer Pty Ltd v Rogerson

[2000] HCA 36

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

JOHN PFEIFFER PTY LIMITED  APPLICANT

AND

DAVID ROGERSON  RESPONDENT

John Pfeiffer Pty Limited v Rogerson
[2000] HCA 36
21 June 2000
C14/1998

ORDER

1. Special leave to appeal granted, the appeal treated as instituted and heard instanter, and allowed.

1. Orders of the Full Court of the Federal Court of Australia made on 8 July 1998 set aside.  In place thereof order that:

(a)the appeal to that Court be allowed; and

(b)the orders of the Full Court of the Supreme Court of the Australian Capital Territory made on 3 December 1997 be set aside and, in place of those orders, order that:

i)the appeal to the Full Court of the Supreme Court of the Australian Capital Territory be allowed;

ii)the orders of the Master made on 24 April 1997 be set aside;

iii)the matter be remitted to the Master to be determined in accordance with the reasons of this Court; and

iv)the costs of the whole of the proceedings before the Master to abide the outcome of that further hearing.

On appeal from the Federal Court of Australia

Representation:

B W Walker SC with A S Bell for the applicant (instructed by Hickson Wisewoulds)

T F Bathurst QC with F M G Parker and D J C Mossop for the respondent (instructed by Gary Robb & Associates)

2.

Interveners:

D M J Bennett QC, Solicitor-General of the Commonwealth with M A Perry and G A Hill intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

W C R Bale QC, Solicitor-General of the State of Tasmania with S K Lighton intervening on behalf of the Attorney-General of the State of Tasmania (instructed by Crown Solicitor for the State of Tasmania)

T I Pauling QC, Solicitor-General for the Northern Territory intervening on behalf of the Attorney-General for the Northern Territory (instructed by the Solicitor for the Northern Territory)

D Graham QC, Solicitor-General for the State of Victoria with S G E McLeish intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia with R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)

B M Selway QC, Solicitor-General for the State of South Australia with M D Walter intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)

M G Sexton SC, Solicitor-General for the State of New South Wales with N E Abadee intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for the State of New South Wales)

P M Donohoe QC with P A Walker intervening on behalf of the Attorney-General for the Australian Capital Territory (instructed by the ACT Government Solicitor)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

John Pfeiffer Pty Limited v Rogerson

Private International Law – Choice of law – Tort – Negligent act committed and damage suffered in New South Wales – Action commenced in Australian Capital Territory – Whether double actionability rule is a choice of law rule – Whether double actionability rule applies to proceedings in federal jurisdiction – Whether a single choice of law rule should be adopted consistently in both federal and non-federal jurisdiction in all courts in Australia – Whether the lex fori or lex loci delicti is applicable – The lex loci delicti governs torts committed in Australia which have an interstate element.

Private International Law – Substance and procedure – Distinction – Matters of substance bear upon existence or enforceability of remedies rights and obligations – Limitations on type and quantum of damages are substantive not procedural.

Limitation of Actions – Limitation provisions barring either right or remedy are substantive not procedural.

Constitutional Law (Cth) – Full faith and credit – Effect of s 118 of the Constitution upon common law choice of law rules – Whether a single choice of law rule should be adopted consistently in both federal and non-federal jurisdiction in all courts in Australia – Effect of Ch III of the Constitution upon common law.

Tort – Damages – Whether Pt 5 of the Workers Compensation Act 1987 (NSW) limits the amount of economic and non-economic loss recoverable.

Words and phrases – "choice of law" – "lex loci delicti" – "lex fori" – "double actionability rule" – "full faith and credit" – "substance and procedure" – "federal diversity jurisdiction".

Constitution, Ch III, s 118.
Judiciary Act 1903 (Cth), ss 79, 80.
Workers Compensation Act 1987 (NSW), Pt 5.

GLEESON CJ, GAUDRON, McHUGH, GUMMOW AND HAYNE JJ.

The issue

1. The applicant submits that the Court should reformulate the principles that govern how a claim in tort, brought in the courts of one Australian jurisdiction (here the Australian Capital Territory), should be determined when some (or, in this case, all) of the relevant facts occurred in another Australian jurisdiction (here New South Wales).  The particular question is what effect the courts of the jurisdiction in which the proceedings are brought should give to legislation of the jurisdiction in which the tort was committed.

   The federal context

2. Before turning to the facts which give rise to this application, it is important to note that the issue arises in a federal context, and not in an international context.  We put issues that might arise in an international context entirely to one side[1].  Because the issues are in the Australian federal context, several preliminary but basic points should be made at the outset.  First, while the phrases "law area" and "lex fori", adapted from the lexicon of private international law, may be used to identify each of the States and Territories which comprise the geographical area of Australia, these expressions are to be understood in the Australian federal context.  Thus, each law area, if it be a State, is a component of the federation and, if it be a Territory, is a Territory of the federation.  And with respect to matters that fall within federal jurisdiction, the Commonwealth of Australia is, itself, a law area.  Across all these law areas there runs the common law of Australia, as modified from time to time and in various respects by the statute law of competent legislatures.  Thus, "law area" and "lex fori" are used in a sense which involves the application by particular courts of the laws of particular legislatures and, in the case of the States and Territories, those laws may reach beyond the geographical area of the State or Territory in question.

   [1]cf Berezovsky v Michaels [2000] UKHL 25.

3. Secondly, the common law of Australia includes the rules for choice of law, again subject to statutory modification.  Thirdly, where those common law rules select the law of a law area other than that in which the court in question exercises jurisdiction as the law which determines the outcome of an action, generally they do so by applying the statute law of that other law area in preference to the common law.  Sometimes, however, they may apply the common law in preference to statute law[2].  In the present case, the applicant contends that the statute law of the law area in which the events in question occurred should be applied in preference to the common law.  Other and more difficult questions arise where, in the case of the States and Territories of Australia, the statute law of two law areas differs and it is sought to apply one rather than the other as the governing law.  That is not this case.

   [2]See, for example, Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20.

   The facts and earlier proceedings

4. The applicant seeks special leave to appeal from the Full Court of the Federal Court of Australia.  The application for special leave was heard by the whole Court as if on the hearing of the full appeal.

5. The applicant was sued by the respondent in the Supreme Court of the Australian Capital Territory for damages for personal injury suffered by the respondent in 1989 in a workplace accident.  The action was framed in tort and the present matter must be decided on that basis notwithstanding that, in this Court, the respondent sought also to frame the case in contract.

6. The respondent, a carpenter, was employed by the applicant in the Australian Capital Territory where the applicant had its principal business office.  The incident which led to the respondent's injury occurred, however, while the respondent was working for the applicant at the Queanbeyan District Hospital in New South Wales.

7. When the action came on for hearing before the Master of the Supreme Court of the Australian Capital Territory, the parties indicated that the case was in the nature of a test case to determine whether s 118 of the Constitution[3] requires that the law to be applied in the assessment of the respondent's damages is that of New South Wales rather than that of the Australian Capital Territory. The parties appear to have agreed before the Master that, if liability were established and the law to be applied were that of New South Wales, the damages to be allowed would be limited by Pt 5 of the Workers Compensation Act 1987 (NSW) ("the NSW Compensation Act"). If, however, the law to be applied were the law of the Australian Capital Territory, the parties agreed that those damages should be assessed in accordance with the common law at $30,000 together with out of pocket expenses.

   [3]Section 118 provides:

   "     Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State."

8. The Master found that the applicant had failed to provide a safe system of work and was liable to the respondent.  The Master concluded that the decision of this Court in Stevens v Head[4] bound him to hold that the law of the Australian Capital Territory applied to determine the quantum of the damages to be allowed and accordingly gave judgment for the respondent for $31,689.75 (being the sum of the agreed general damages and the agreed out of pocket expenses) together with costs.

   [4](1993) 176 CLR 433.

9. From this judgment the applicant appealed to the Full Court of the Supreme Court of the Australian Capital Territory which dismissed the appeal with costs.  The applicant appealed from that judgment to the Full Court of the Federal Court of Australia which again dismissed the appeal with costs.  It is in respect of this last judgment that application is made for special leave to appeal.

   The relevant New South Wales statutory provisions

10. Reference should be made to the relevant provisions of Pt 5 of the NSW Compensation Act. That Part is concerned with common law remedies for workplace injuries. Division 3 of Pt 5 applies to an award of damages in respect of injury to a worker or death of a worker resulting from or caused by an injury "being an injury caused by the negligence or other tort of the worker's employer."[5]  It applies to an award of damages in respect of an injury "caused by the negligence or other tort of the worker's employer even though the damages are recovered in an action for breach of contract or in any other action."[6]

    [5]s 151E(1).

    [6]s 151E(3).

11. Section 151F provides that "[a] court may not award damages to a person contrary to this Division." Prima facie, as a matter of New South Wales statute law[7], the prohibition of s 151F is directed to the courts of New South Wales, at least where they are exercising State jurisdiction. If the court in question is a federal court or a New South Wales court exercising federal jurisdiction with which it has been invested by the Parliament pursuant to s 77(iii) of the Constitution, the question will be whether s 151F is "picked up" by s 79 of the Judiciary Act 1903 (Cth) ("the Judiciary Act").

    [7]Interpretation Act 1987 (NSW), s 12.

12. Other provisions of Div 3 of Pt 5 give content to the prohibition in s 151F. In particular, reference should be made to s 151G(2) and (4):

    "(2)   The amount of damages to be awarded for non-economic loss is to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded.

    …

    (4)    If the amount of non-economic loss is assessed to be $36,000 or less, no damages for non-economic loss are to be awarded."

    and to s 151H(1):

    "No damages are to be awarded for economic loss unless the injured worker has received a serious injury or dies as a result of the injury."

    The parties are agreed that, if the regime established by these provisions applies to the respondent's claim, the matter should be remitted to the Master of the Supreme Court of the Australian Capital Territory to determine what damages, if any, should be awarded.

    The nature of the problem

13. Federal, State and Territory courts have jurisdiction in personal actions if the defendant is served with the court's originating process within the territorial bounds of the court's jurisdiction[8].  Those courts will also take jurisdiction in certain other circumstances prescribed by rules of court or by the Service and Execution of Process Act 1992 (Cth).  In this "long arm" jurisdiction a plaintiff must show some connection between the claim and the jurisdiction in which the claim is made.

    [8]      Laurie v Carroll (1958) 98 CLR 310; Gosper v Sawyer (1985) 160 CLR 548 at 564-565.

14. In by far the majority of cases, the jurisdiction of Australian courts in personal actions depends on the defendant's presence in the territorial jurisdiction at the time of service of the originating process.  In such cases it is not necessary to show any other connection with the jurisdiction.  Thus, questions can arise as to the law to be applied to determine the consequences which attach to an act or omission which occurred in a State or Territory other than that in which proceedings are brought.  Those questions can arise whether the proceedings are in federal or non-federal jurisdiction.

15. No question as to the law to be applied arises for State or Territory courts if the events which give rise to the proceeding all occurred within the territory of the court's jurisdiction. It is the body of law comprising the Constitution, applicable Commonwealth legislation, applicable legislation of the State or Territory concerned, and the common law of Australia. But if the parties or the events have some relevant connection with another Australian jurisdiction, there is a question whether any of the legislation of that other jurisdiction should be taken into account in deciding any of the three issues of existence, extent or enforceability of rights and obligations. No question can arise about the other sources of law: effect must always be given by a State or Territory court to the Constitution[9] and to any applicable Commonwealth legislation, and subject to what follows, because there is a single common law of Australia[10], there will be no difference in the parties' rights or obligations on that account, no matter where in Australia those rights or obligations are litigated.

    [9]Covering cl 5.

    [10]    Mabo v Queensland [No 2] (1992) 175 CLR 1 at 15; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 556; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 566; Lipohar v The Queen (1999) 74 ALJR 282 at 289, 291, 316; 168 ALR 8 at 18, 22, 56.

16. There may be cases where, although the common law applies both in the law area in which a particular case is litigated and in the law area in which the relevant events occurred, it may have been modified in one of them in some relevant particular.  For example, contributory negligence may have been removed as an absolute defence, as was the case in Anderson v Eric Anderson Radio & TV Pty Ltd[11].

    [11](1965) 114 CLR 20.

17. If a court of a State or Territory must apply legislation of that State or Territory in deciding the existence, extent or enforceability of rights and obligations, but the courts of another State or Territory would not give effect to the rules found in that legislation (if the same issues were litigated between the same parties in that other State or Territory), the existence, extent or enforceability of the parties' rights and obligations will differ according to where the litigation is conducted.  Similarly, if the courts of the jurisdiction in which the matter is to be heard do not give effect to rules found in the legislation of the jurisdiction where the events occurred (and which the courts of the latter jurisdiction would apply) there will be different outcomes according to where the litigation takes place.  In the traditional language of private international law, if the forum does not give effect to the law of the place of the commission of the tort (the lex loci delicti), but instead applies the law of the forum (the lex fori), there will be different outcomes according to the jurisdiction in which the proceedings are brought.

18. Although the Commonwealth of Australia is a single law area with respect to matters within federal jurisdiction, a question can, nonetheless, arise in such matters as to whether the legislation of one State or Territory is to be applied rather than that of another.  That question can arise in State and Territory courts exercising federal jurisdiction, in federal courts and in this Court.  Commonly the question arises in "federal diversity jurisdiction"[12] where a resident of one State sues a resident of another in a court other than a court of the State or Territory in which the events in question occurred[13].  It can also arise in proceedings against the Commonwealth[14] or in proceedings by a resident of one State against another State[15], again if the proceedings are brought in a court other than a court of the State or Territory in which the events occurred.

    [12]Section 75(iv) of the Constitution provides that the High Court shall have original jurisdiction in all matters "between States, or between residents of different States, or between a State and a resident of another State". Section 39(2) of the JudiciaryAct 1903 (Cth) vests the High Court's original jurisdiction concurrently in State courts, subject to exceptions which are not presently relevant.

    [13]    See, for example, R v Langdon; Ex parte Langdon (1953) 88 CLR 158; R v Macdonald; Ex parte Macdonald (1953) 88 CLR 197; R v Oregan; Ex parte Oregan (1957) 97 CLR 323; Pedersen v Young (1964) 110 CLR 162; Gleeson v Williamson (1972) 46 ALJR 677; Weber v Aidone (1981) 55 ALJR 657; 36 ALR 345; Guzowski v Cook (1981) 149 CLR 128; Robinson v Shirley (1982) 149 CLR 132; Pozniak v Smith (1982) 151 CLR 38; Bargen v State Government Insurance Office (Q) (1982) 154 CLR 318; Foxe v Brown (1984) 59 ALJR 186; 58 ALR 542; Fielding v Doran (1984) 59 ALJR 511; 60 ALR 342; Gardner v Wallace (1995) 184 CLR 95.

    [14]See, for example, Musgrave v The Commonwealth (1937) 57 CLR 514; Parker v The Commonwealth (1965) 112 CLR 295; Suehle v The Commonwealth (1967) 116 CLR 353; Johnstone v The Commonwealth (1979) 143 CLR 398; State Bank (NSW) v Commonwealth Savings Bank (1984) 154 CLR 579; McCauley v Hamilton Island Enterprises Pty Ltd (1986) 61 ALJR 235; 69 ALR 270; Bowtell v The Commonwealth (1989) 63 ALJR 465; 86 ALR 31.

    [15]See, for example, Daly v State of Victoria (1920) 28 CLR 395; Griffin v South Australia (1924) 35 CLR 200; New South Wales v Bardolph (1934) 52 CLR 455; Crouch v Commissioner for Railways (Q) (1985) 159 CLR 22.

19. The question in this case arises in federal jurisdiction, a question having arisen under the Constitution when the proceedings were first before the Master.

    The state of the authorities

1. In cases which have some "foreign" element and concern the law of contract, or concern questions of status, it has long been accepted that the courts should identify and apply the law which governs the issue or issues that fall for decision.  Thus, in cases concerning contracts, the courts seek to identify the proper law of the contract[16] and, in cases concerning questions of status, they seek to identify the relevant governing law[17].  The process of choice of law has, therefore, been well understood and accepted in these areas.  In the area of tort, however, the position has been less clear.

   [16]    Robinson v Bland (1760) 2 Burr 1077 [97 ER 717]; Allen v Kemble (1848) 6 Moo PC 314 [13 ER 704]; Lloyd v Guibert (1865) LR 1 QB 115; Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society (1934) 50 CLR 581; Mount Albert Borough Council v Australasian Temperance and General Mutual Life Assurance Society [1938] AC 224; Bonython v The Commonwealth (1950) 81 CLR 486; [1951] AC 201.

   [17]    For example, Kent v Burgess (1840) 11 Sim 361 [59 ER 913]; Berthiaume v Dastous [1930] AC 79; Della Torre v Della Torre [1955] SASR 278.

2. It should be noted that the term "tort" is used in this context to denote not merely civil wrongs known to the common law but also acts or omissions which by statute are rendered wrongful in the sense that a civil action lies to recover damages occasioned thereby.  Thus, Koop v Bebb[18], which will be considered shortly, involved statutes of New South Wales and Victoria, both of which substantially reproduced Lord Campbell's Act and so gave an action in respect of wrongful death where the common law gave none.

   [18](1951) 84 CLR 629.

3. Although the nineteenth century decision of the Court of Exchequer Chamber in Phillips v Eyre[19] was given in a context far removed from that of the Australian federal compact, it was taken for many years as stating the principles to be applied by courts in Australia when dealing with a claim in tort where the tort had been committed elsewhere in Australia[20].  In Koop v Bebb, a case which did not involve federal jurisdiction, this Court held, in 1951, that:

   "In the present state of authority it must be accepted that 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"[21].

   As the majority of the Court pointed out, this was the language of Willes J in Phillips v Eyre.  For the statement of the first condition, Willes J had relied on Liverpool, Brazil, and River Plate Steam Navigation Co Ltd v Benham (The "Halley")[22] although, as the majority in Koop also pointed out:

   "in that case the Privy Council decided that the defendant was not liable in England for an act done abroad by another person, not because of the character of the act according to English law, but because the person who did it was not one for whose defaults the defendant was responsible according to English law."[23]

   [19](1870) LR 6 QB 1.

   [20]    See, for example, Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 at 69 per O'Connor J.

   [21] (1951) 84 CLR 629 at 642 per Dixon, Williams, Fullagar and Kitto JJ citing Walpole v Canadian Northern Railway Co [1923] AC 113 at 119; McMillan v Canadian Northern Railway Co [1923] AC 120 at 123, 124.

   [22](1868) LR 2 PC 193.

   [23](1951) 84 CLR 629 at 642.

4. The rule in Phillips v Eyre, adopted in Koop, can be seen to be a rule that requires "double actionability" and it is convenient to describe it in that way.  But what law is applied if effect is given to the double actionability rule?  Is the double actionability rule one which deals only with the existence of a cause of action in the forum?  Or is one or other of the two limbs in Phillips v Eyre a choice of law rule?

5. In the course of argument in this application, the double actionability rule was spoken of as being directed to the question either of "jurisdiction" or "justiciability".  Neither of those descriptions is completely accurate.  They are, moreover, descriptions that may distract attention from important considerations.

6. Questions of jurisdiction (in the sense of authority to decide) are better kept separate from questions of the applicable law.  A court has jurisdiction in a civil action either because the plaintiff has served the originating process on the defendant while within its territorial jurisdiction or because applicable "long arm" provisions have been invoked[24].  The assumption of jurisdiction raises no question as to the law to be applied in deciding the rights and duties of the parties.  That last question might, in some cases, affect whether the court should decline to exercise its jurisdiction and stay the proceedings[25].  But the authority of a court to decide a question of forum non conveniens and, also, to decide the substantive rights and duties of the parties comes from the fact of service of the process.

   [24]In crime, jurisdiction is founded upon presence to stand trial and the governing law always is that in force in the forum:  Lipohar v The Queen (1999) 74 ALJR 282 at 301-302; 168 ALR 8 at 36.

   [25]See Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565-566 per Mason CJ, Deane, Dawson and Gaudron JJ.

7. Further, to describe the question as one of "justiciability" or, even, "procedural enforceability" distracts attention from the need to identify the content of the rules which are to be invoked in deciding the rights and duties of the parties.  That can be illustrated by Koop which establishes or supports propositions which have not been challenged, and which are assumed in what follows in these reasons.

8. In Koop, the action was brought in the Supreme Court of Victoria in respect of a death resulting from an accident in New South Wales.  This Court held that the provisions of the Wrongs Act 1928 (Vic) did not operate beyond the borders of Victoria and that the statute enacted a rule to form part of the general body of the law of Victoria relating to civil liability for wrongful acts, neglects and defaults.  Nevertheless, the common law choice of law rules which then applied in Victoria meant that the Victorian Act determined the outcome of an action with respect to an accident in New South Wales[26].  By parity of reasoning, if the common law choice of law rules select the lex loci delicti as the law to be applied, it is not useful and may be misleading to ask whether a statute which confers a right of action in that law area extends to a proceeding brought in the courts of another law area to determine whether it is "justiciable" or "procedurally enforceable" in that law area.  Many statutes have a territorial reach and institutional operation which is limited.  But that does not necessarily mean that a cause of action conferred by the statute law of one State or Territory cannot be the subject of proceedings in the courts of another State or Territory.  The question whether it can or cannot will only be answered by the choice of law rules.

   [26](1951) 84 CLR 629 at 641.

9. In Anderson v Eric Anderson Radio & TV Pty Ltd, a case which was held not to involve federal jurisdiction[27], Windeyer J considered the question of choice of law in claims in tort where there was some connection with an Australian jurisdiction other than that of the forum[28].  The suggestion, that by then had been made in some academic writing[29], that the double actionability rule was no more than a threshold requirement, invited attention to what was the source of the law which the forum would apply to decide the rights of the parties.  Windeyer J pointed out that to conclude that the courts of the forum would entertain an action on a foreign tort because the events were of a character actionable in the forum, does not necessarily mean that those courts must determine it in accordance with the municipal law of the forum.  As his Honour said, "[a]ssumption of jurisdiction and choice of law are logically distinct."[30]

   [27](1965) 114 CLR 20 at 24-25 per Barwick CJ, 37 per Taylor J, 44-45 per Windeyer J (Kitto and Menzies JJ not deciding).

   [28] (1965) 114 CLR 20 at 41-42.

   [29]    Windeyer J referred to the review of Falconbridge, Essays on the Conflict of Laws, (1947) by Yntema in (1949) 27 Canadian Bar Review 116; Spence, "Conflict of Laws in Automobile Negligence Cases", (1949) 27 Canadian Bar Review 661; Dicey's Conflict of Laws, 7th ed (1958) at 943.

   [30] (1965) 114 CLR 20 at 41.

10. In Anderson Windeyer J concluded that the decisions in The "Halley" and Koop required the conclusion that:

    "under our system of private international law as it stands at present, a court that entertains an action based upon a foreign tort must (unless there be a statute to the contrary) decide the rights of the parties as it would in an action based on a similar event occurring within its own domain."[31]

    [31] (1965) 114 CLR 20 at 42.

11. Barwick CJ and Taylor J, who with Windeyer J constituted the majority of the Court in Anderson, did not address the distinction between actionability and choice of law that was considered by Windeyer J.  Barwick CJ and Taylor J did conclude, however, that, as the action then in question had been brought in New South Wales, the law of that State applied to the issue of contributory negligence, notwithstanding that the events in question occurred in the Australian Capital Territory.  That is, the majority concluded that the law of the forum was to be applied in determining the rights of the parties.

12. In Breavington v Godleman[32], and the related case of Perrett v Robinson[33], the Court reconsidered Koop and Anderson.  Breavington concerned a motor accident that occurred in the Northern Territory. The appellant was a passenger in a motor vehicle owned by, and driven by an employee of, the Australian Telecommunications Commission ("Telecom") which collided with a car driven by the first respondent. The appellant sued the two drivers and Telecom in the Supreme Court of Victoria. (At the time of the accident the first respondent had been a resident of the Northern Territory but he had moved to Victoria before the action was brought. The Court's process was served on him in Victoria.) The parties accepted that Telecom was the Commonwealth for the purposes of s 56 of the Judiciary Act. Thus, the action (being an action against the Commonwealth) was an action in federal jurisdiction[34].

    [32] (1988) 169 CLR 41.

    [33] (1988) 169 CLR 172.

    [34] Constitution, s 75(iii).

13. Six separate sets of reasons for judgment were given in Breavington. Different views were expressed about what, if any, influence or effect s 118 of the Constitution had on the resolution of the kind of problem presented by the case[35].  Different views were expressed about the operation of the double actionability rule[36] and about whether it should be modified in some way[37].  For immediate purposes, however, what is important to note is that a majority of the Court held that the law of the Northern Territory, as the lex loci delicti, was to be applied by the Supreme Court of Victoria in determining the appellant's entitlement to damages.  Although there was some discussion in the case as to the significance of the matter being a matter within federal jurisdiction, no member of the majority rested his or her decision on that aspect.  Thus, the majority of the Court clearly departed from what had been decided in Koop and in Anderson.

    [35] (1988) 169 CLR 41 at 97-98 per Wilson and Gaudron JJ, 136-137 per Deane J; cf at 83 per Mason CJ, 117 per Brennan J, 150 per Dawson J, 164 per Toohey J.

    [36] (1988) 169 CLR 41 at 73 per Mason CJ, 142-143 per Dawson J, 155-156 per Toohey J.

    [37] (1988) 169 CLR 41 at 110-111 per Brennan J, 158 per Toohey J.

14. The Court returned to these subjects in McKain v R W Miller & Co (SA) Pty Ltd[38] and again in Stevens v Head[39].  Neither was a case in which the action was brought in federal jurisdiction.  (Although in McKain federal jurisdiction was attracted when the cause pending in the Supreme Court of New South Wales was removed into this Court by order under s 40(1) of the Judiciary Act.) In McKain, a majority of the Court said that it was preferable "to state the common law rules for application by Australian courts in cases of Australian torts in terms to which a majority of this Court assent"[40].  The rules adopted[41] were those formulated by Brennan J in Breavington, namely:

    "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."[42]

    That approach was reaffirmed by the same members of the Court in their joint judgment in Stevens.  In Stevens, the majority said that:

    "    This formulation [of the principles relating to intranational torts] focusses attention on the kind of civil liability which a plaintiff is seeking to enforce.  A plaintiff's cause of action under the law of the forum thus depends in part upon an affirmative answer to the question whether, by the lex loci, the relevant facts gave and continue to give[43] rise to a civil liability of the kind which the plaintiff seeks to enforce."[44]

    [38] (1991) 174 CLR 1.

    [39] (1993) 176 CLR 433.

    [40] (1991) 174 CLR 1 at 38-39 per Brennan, Dawson, Toohey and McHugh JJ.

    [41] (1991) 174 CLR 1 at 39.

    [42] (1988) 169 CLR 41 at 110-111.

    [43] (1991) 174 CLR 1 at 39-40.

    [44] (1993) 176 CLR 433 at 453.

15. At this stage, it is important to note that the decisions of this Court in Koop[45], McKain[46] and Stevens[47] applied and developed the common law choice of law rules, which had been formulated by the courts of the United Kingdom, as the common law choice of law rules for Australia.  They did so before it was held by this Court in Lange v Australian Broadcasting Corporation[48] that the common law of Australia must adapt to the Constitution. That being so, the reasoning in Koop, McKain and Stevens can only be accepted if it is consistent with the Constitution. Those decisions must be examined, therefore, to determine whether that is so. In particular, they must be examined to determine whether they are consistent with Ch III of the Constitution and the integrated judicial system which it mandates.

    [45] (1951) 84 CLR 629.

    [46] (1991) 174 CLR 1.

    [47] (1993) 176 CLR 433.

    [48] (1997) 189 CLR 520.

16. An examination of the decisions in McKain and Stevens reveals a number of matters.  First, no question arose in either case as to the right of the plaintiff to maintain an action in the court in which proceedings were commenced and, thus, there was no issue in those cases as to the double actionability rule.  Secondly, neither case was concerned with the question as to what law was to be applied to determine whether the defendant was liable in the action.  Rather, they were concerned solely with the question whether certain statutory laws of the place of the wrong were to be classified as substantive or procedural[49], it being accepted that, if they were procedural, they were not to be applied.

    [49]    In McKain, the question was whether s 36(1) of the Limitation of Actions Act 1936 (SA) or s 82(2) of the Workers Compensation Act 1971 (SA), both of which stipulated a limitation period of 3 years to commence an action for damages for personal injuries, were procedural or substantive, and thus applicable to bar an action commenced in the Supreme Court of New South Wales. Section 14(1) of the Limitation Act 1969 (NSW) provided for a limitation period of 6 years. In Stevens, the question was whether s 79 of the Motor Accidents Act 1988 (NSW), which restricted the amount of damages recoverable for non-economic loss suffered as a result of a motor accident, was procedural or substantive, and thus applicable in an action commenced in the District Court of Queensland. There was no comparable statute in force in Queensland.

17. Although the formulation in McKain and Stevens is a formulation suggestive of a double actionability rule and although neither case raised an issue as to the law to be applied in determining whether the defendant was liable, Dawson J, a member of the majority in McKain and in Stevens, was later to say that:

    "[McKain] decided that, provided two conditions were met, an action could be maintained in a State other than that in which the tort occurred and that the law, procedural and substantive, to be applied in resolving the action was the law of the State in which the action was heard, that is to say, the law of the forum."[50]

    [50]    Gardner v Wallace (1995) 184 CLR 95 at 98.

18. A more important matter to be noted with respect to Koop, McKain and Stevens is that they were not matters in federal jurisdiction.  The need to examine the reasoning in those cases is strengthened by the fact that it has no necessary application in matters of federal jurisdiction which are being heard in increasing numbers not only in the federal courts but in the courts of the States.  And the difficulty of applying the reasoning in those cases to federal courts was acknowledged in McKain, it being said by the majority in that case that:

    "The problem for federal courts exercising Australia‑wide jurisdiction and bound by s 79 of the JudiciaryAct 1903 (Cth) raises additional questions for consideration which need not delay us here." (footnote omitted)[51]

    [51] (1991) 174 CLR 1 at 35.

19. There is considerable difficulty in thinking that the principles formulated by the majority in McKain can have any application, in at least some kinds of case, in federal jurisdiction.  So, in an action commenced in this Court's diversity jurisdiction, there appears to be no scope for a double actionability rule.  But before turning to the issues that arise in actions in federal jurisdiction, it is convenient to consider the nature of the right which is enforced by a court in respect of events which happened outside its jurisdiction and the source of the choice of law rules which that court applies.

    Nature of the right enforced by courts in respect of events which happened outside their jurisdiction

20. In Koop, this Court held that the law of the forum enforces an obligation of its own creation in respect of an act done outside the territorial jurisdiction of the forum, but only if the act would have been a civil wrong if done in the territory of the forum and the act had a particular character according to the law of the place in which it was done[52].  This holding plainly rejected the vested rights theory put forward by Holmes J in Slater v Mexican National Railroad Co[53].  Holmes J had described the theory in the following terms:

    "The theory of the foreign suit is that although the act complained of was subject to no law having force in the forum, it gave rise to an obligation, an obligatio, which, like other obligations, follows the person, and may be enforced wherever the person may be found."[54]

    [52] (1951) 84 CLR 629 at 644.

    [53] 194 US 120 (1904).

    [54] 194 US 120 at 126 (1904). The vested rights theory stemmed, in the United States, largely from Story, Commentaries on the Conflict of Laws, 8th ed (1883), but it was entrenched by the Restatement, Conflict of Laws, which was published in 1934.  It held sway in the United States for many years.  Only on publication in 1971 of the Restatement 2d, Conflict of Laws, could it be said finally to have been supplanted as the dominant theoretical explanation of the private international law rules applied in the United States.

1. The view adopted in Koop that the forum enforces an obligation of its own creation appears to reflect the local law theory or theories[55] associated with Judge Learned Hand and Professor Cook[56].  As Judge Hand said in Guinness v Miller:

   "[N]o 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."[57]

   [55]    Cavers, "The Two 'Local Law' Theories", (1950) 63 Harvard Law Review 822.

   [56]    See Cook, The Logical and Legal Bases of the Conflict of Laws, (1949), Ch 1.

   [57] 291 F 769 at 770 (1923); affd Hicks v Guinness 269 US 71 (1925). See also Direction der Disconto-Gesellschaft v United States Steel Corporation 300 F 741 (1924); Scheer v Rockne Motors Corporation 68 F 2d 942 (1934); Siegmann v Meyer 100 F 2d 367 (1938).

2. The local law theory, which, in part, may be based on the notion of comity between nations, provides support for the view that the forum should apply its own laws to determine both liability in the action and the extent of that liability with respect to events occurring outside its jurisdiction.  But in actions commenced in federal jurisdiction, the acts or events all occurred within the jurisdiction – the law area of Australia – and the only task for the court is to identify the body of law that governs their consequences.  That task neither requires nor is assisted by resort to either vested rights theories or local law theories.

   The source of the choice of law rules

3. It was said by the majority in McKain[58] to be "axiomatic" that it is the governing system of law binding on the court of the forum which furnishes the rules for choice of law.  A number of points should be made with respect to that statement.  First and as has been indicated earlier in these reasons, the identification in this way of the "lex fori" has to be understood in the sense required for that term within the Australian federation.

   [58] (1991) 174 CLR 1 at 34.

4. The second point that should be made is that in McKain the majority used the expression "conflict of law rules" rather than "choice of law rules".  The latter is the preferable expression.  The unsatisfactory nature of the term "conflict of laws" was discussed by Dr J H C Morris in the sixth edition of Dicey's Conflict of Laws[59].  It was pointed out that the only "conflict" possible is that in the mind of the judge who is to decide which system of law to apply to the facts before the court, whereas the term "choice of law" correctly indicates the existence of the possibility of the application of one or other system of law to the facts of the case under consideration[60].  In the Australian federation, the term "conflict" is better used to identify inconsistency between laws, the inconsistency leading, to the extent of that inconsistency, to the invalidity of one law.  Further and as already indicated, in actions commenced in federal jurisdiction, the question is not so much a question as to choice of law, but identification of the applicable law.

   [59]    The sixth edition was published in 1949 and was the first edition under the editorship of Dr J H C Morris.

   [60]    Dicey's Conflict of Laws, 6th ed (1949) at 7.

5. The third point which should be made with respect to the statement in McKain is that, as already pointed out but subject to certain State legislation dealing with one of the issues that arise in choice of law cases for Australian torts involving an interstate element[61], the choice of law rules are provided by the common law of Australia. It is now well accepted that the common law must adapt to the Constitution[62].  Ideally, it should also adapt so as to provide practical solutions to particular legal problems which occur in the federal system.  Thus, ideally, the choice of law rules should provide certainty and uniformity of outcome no matter where in the Australian federation a matter is litigated, and whether it is litigated in federal or non-federal jurisdiction.  The question whether the common law with respect to the choice of law rule for Australian torts involving an interstate element should now be modified, as the applicant contends, requires analysis of the manner in which it operates both in non-federal and federal jurisdiction.

   [61]That issue is whether limitation laws are substantive or procedural.

   [62]    See Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 140; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 566.

   Operation of the choice of law rules – non-federal jurisdiction

6. Two questions arise with respect to choice of law rules.  First, what kinds of issues are subject to those rules.  The second is whether the source of the content of the rules which the forum applies to the determination of the rights and duties of the parties is the law of the forum or some other law.  These two questions lie at the heart of the issues raised with respect to torts involving an interstate element which are litigated in the courts of a State other than that in which the events in question occurred.

7. In McKain, the majority said:

   "    Traditionally, a distinction has been drawn between substantive law (the subject of the conflict of law rules) and procedural law which is governed by the lex fori alone.  Though the dividing line is sometimes doubtful or even artificial, the need to distinguish between substantive law and procedural law is clearly recognized for a number of forensic purposes."[63]

   The majority accepted and applied this traditional distinction.  That is, they accepted that only substantive questions (as opposed to procedural questions) were the subject of the choice of law rules.

   [63] (1991) 174 CLR 1 at 40.

8. A conclusion that questions of substance are governed by choice of law rules does not necessarily mean, however, that the relevant rule will direct attention to some law other than the law of the forum.  As already indicated, the question whether the choice of law rule directs attention to the law of the forum or to some other law did not have to be decided in either McKain or Stevens because the relevant statute of the place of commission of the tort (upon which the defendant relied, in denial or diminution of liability to the plaintiff) was, in each case, classified as relating to a procedural issue.

9. In McKain, the statutory limitation provision of the place of commission of the tort was classified as procedural.  Procedural issues being governed by the law of the forum, it was held that no effect should be given to the limitation provision of the place of commission.  And in Stevens, the legislation of the place of commission (which placed limits on the amount of damages recoverable) was held not to deal with the substantive issue of heads of damage but the procedural issue of quantification of damages.  Again, therefore, quantification was governed by the law of the forum and it was held that no effect should be given to the statute of the place of commission.  Subsequent to McKain, legislation was enacted in several jurisdictions to provide that time limitation laws are to be treated as substantive rather than procedural[64].

   [64]    Choice of Law (Limitation Periods) Act 1993 (NSW); Choice of Law (Limitation Periods) Act 1993 (Vic); Limitation of Actions Act 1936 (SA), ss 38, 38A; Limitation of Actions Act 1974 (Q), s 43A; Choice of Law (Limitation Periods) Act 1994 (WA); Limitation Act 1974 (Tas), ss 32A-32D; Choice of Law (Limitation Periods) Act 1994 (NT); Limitation Act 1985 (ACT), Pt 4, Div 4.

10. It can be seen from McKain and from Stevens that, if the law of the forum applies to all substantive and procedural issues, the only scope for the operation of the law of the place of the commission of the tort is that afforded by the double actionability rule.  That rule operates to give what is, in effect, a defence to the claim that is made, in cases where, by the law of the place, the circumstances of the occurrence would not give rise to a civil liability of the kind which the plaintiff seeks to enforce.

    Applicable law in federal jurisdiction

11. As already indicated, it was held in Anderson that that case was not an action in federal jurisdiction and, thus, it was not necessary for the Court to consider whether either the double actionability rule adopted in Koop or a choice of law rule is applicable in matters within federal jurisdiction.  Nor was that question specifically addressed in Breavington, although Wilson and Gaudron JJ were of the view that the choice of law rule should "take account of the existence of federal jurisdiction as delineated in Ch III of the Constitution."[65]

    [65] (1988) 169 CLR 41 at 86. See also at 122-125 per Deane J, 166-167 per Toohey J. But cf at 107, 114 per Brennan J.

12. To understand the questions that arise in federal jurisdiction it is necessary to refer to ss 79 and 80 of the Judiciary Act. Those sections provide:

    "    79. 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.

    80. So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters."

13. There is one aspect of s 79 which was adverted to by Gaudron J in The Commonwealth v Mewett and which should be noted.  Her Honour observed:

    "Given that the Commonwealth is a single nation and given, also, its integrated legal system, it is not strictly accurate to speak in terms of a court exercising federal jurisdiction in a State or Territory, as does s 79 of the Judiciary Act[66].  Rather, the jurisdiction of this Court extends throughout the Commonwealth, as does the jurisdiction of the Federal Court.  In both cases, jurisdiction is exercised in Australia, not in a State or Territory."[67]

    [66]    See Kruger v The Commonwealth (1997) 190 CLR 1 at 136-137, 138-139 per Gaudron J.

    [67] (1997) 191 CLR 471 at 524-525.

14. The observation by Gaudron J in Mewett also directs attention to the nature of the question posed with respect to torts which involve an interstate element and which are litigated in federal jurisdiction.  The jurisdiction of this Court and the Federal Court[68] and the Family Court[69] is clearly Australia wide; so too (but, perhaps, less obviously) is the jurisdiction of courts invested with federal jurisdiction when that jurisdiction is exercised. Thus, strictly the question that arises in matters of federal jurisdiction does not involve any choice between laws of competing jurisdictions, but identification of the applicable law in accordance with ss 79 and 80 of the Judiciary Act.

    [68]    Federal Court of Australia Act 1976 (Cth), s 18.

    [69]    Family Law Act 1975 (Cth), s 27.

15. Questions as to the law applicable in federal jurisdiction to determine tort actions involving an interstate element can arise in two contexts. They can arise in actions brought in State courts exercising federal jurisdiction or, as in this case, in a Territory court. Alternatively, they can arise in this Court or in a federal court created pursuant to Ch III of the Constitution.

16. Musgrave v The Commonwealth[70] has been understood as involving the proposition that, by operation of either or both ss 79 and 80, the common law choice of law rules apply to an action in tort brought in federal jurisdiction.  In Pedersen v Young, Windeyer J put the matter this way:

    "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."[71]

    There is legislation, earlier referred to, providing that time limitation laws are to be treated as substantive and not procedural.  There are, however, no State laws providing either for an actionability rule or a choice of law rule for torts involving an interstate element.  The relevant rules are rules of the common law[72]. Thus it was that various submissions in the present case proceeded on the basis that the Supreme Court of the Australian Capital Territory was obliged by s 80 to apply the common law choice of law rules as part of the common law of Australia.

    [70] (1937) 57 CLR 514.

    [71] (1964) 110 CLR 162 at 169-170. See also Musgrave v The Commonwealth (1937) 57 CLR 514 at 532, 543, 547-548, but cf at 550-551; Deputy Federal Commissioner of Taxation v Brown (1958) 100 CLR 32 at 39; Parker v The Commonwealth (1965) 112 CLR 295 at 306; Suehle v The Commonwealth (1967) 116 CLR 353 at 356.

    [72]    See The Commonwealth v Mewett (1997) 191 CLR 471 at 526 per Gaudron J.

17. No question presently arises as to the position which would obtain if s 80 were displaced by a specific statutory federal choice of law rule[73]. Nor is it necessary to determine what would have been the position if s 80 had not been enacted or were repealed. A question would have arisen as to whether the common law choice of law rules, as later formulated in these reasons, nevertheless apply in federal jurisdiction as part of the ultimate constitutional foundation.

    [73]    See, for example, Domicile Act 1982 (Cth), and compare Trusts (Hague Convention) Act 1991 (Cth).

18. The view that the common law rules with respect to actionability and choice of law apply in matters involving federal jurisdiction has the consequence, in effect, that if an action is brought in a State court exercising federal jurisdiction, the law of that State will govern the action no matter where the events in question occurred. However, when actions involving an interstate element have been brought in this Court, the question as to which law should govern the action has largely been transformed into questions as to choice of venue or choice of the forum to which the matter should be remitted under s 44 of the Judiciary Act. In practice, questions as to the applicable law have played a
    

    [74]    See, for example, Parker v The Commonwealth (1965) 112 CLR 295; Gleeson v Williamson (1972) 46 ALJR 677; Guzowski v Cook (1981) 149 CLR 128; Pozniak v Smith (1982) 151 CLR 38; Fielding v Doran (1984) 59 ALJR 511; 60 ALR 342.

    [75]    See, for example, Weber v Aidone (1981) 55 ALJR 657; 36 ALR 345; Robinson v Shirley (1982) 149 CLR 132; Crouch v Commissioner for Railways (Q) (1985) 159 CLR 22.

    significant role in the selection of venue or remittee forum[74].  However, so, too, have considerations of practical convenience[75].

19. Because ss 79 and 80 of the Judiciary Act both require reference to the statute law of the State or Territory in which the court concerned is exercising federal jurisdiction so far as that statute law is applicable, it follows that, subject to some qualifications which can be put to one side for the moment, the statute law of the State or Territory in which federal jurisdiction is exercised will be applied. And if the common law rules for choice of law in a case which has some interstate element are applicable and require reference to the laws of the forum, the law which will be applied will depend upon where the court is sitting[76].  In a case concerning a tort committed in Australia, and in respect of which a federal, State or Territory court is exercising federal jurisdiction, the existence, extent and enforceability of the rights and obligations of the parties may, therefore, be affected significantly by where the court sits.

    [76]    Robinson v Shirley (1982) 149 CLR 132 at 136 per Brennan J.

    Reconsideration: matters relevant to the federation: Ch III and s 118 – "full faith and credit"

20. At the least, the fact that, in matters involving federal jurisdiction, the outcome of an action for tort may be affected significantly by where the court sits is properly called odd or unusual.  That is because, although the source of the power to decide is constant, the content of the rights and duties to which the court gives effect may vary according to where the power to decide is exercised in the federation.  It is a result which warrants reconsideration of the question of the applicable law in matters involving federal jurisdiction.  Moreover, as has been seen, little attention was given to that question in the decided cases.

21. It is, however, undesirable to restrict reconsideration to the question that arises in federal jurisdiction.  Ordinarily, the question whether a matter falls within federal jurisdiction will depend on the identity of the parties or their State of residence, not the events which are said to give rise to tortious liability.  For example, the rights of a plaintiff who is struck by a motor vehicle should not differ according to whether it was driven by an employee of the Commonwealth or by a private individual.  So, too, they should not differ according to whether it was driven by a person resident in the same State or by a person resident in a different State.

22. Reconsideration of the rules to be applied with respect to torts which involve an interstate element but which are not litigated in federal jurisdiction is not precluded by the fact that McKain and Stevens have not stood for very long.  Although it is clear that, in those cases, the majority adopted a modified double actionability rule, it is not entirely clear that those cases require application of the lex fori to questions of substance.  Moreover and notwithstanding those decisions, the course of authority in this Court has not been free from doubt and difficulty.

23. In considering the rules which should apply with respect to Australian torts involving an interstate element but which are not litigated in federal jurisdiction, it is relevant to have regard to the requirement of s 118 of the Constitution that:

    "    Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State."

24. In its terms, s 118 does not state any rule which dictates what choice is to be made if there is some relevant intersection between legislation enacted by different States. Nor does it, in terms, state a rule which would dictate what common law choice of law rule should be adopted. It may well be, however, that s 118 (and in some cases s 117, or even s 92 in its protection of individual intercourse[77]) deals with questions of competition between public policy choices reflected in the legislation of different States – at least by denying resort to the contention that one State's courts may deny the application of the rules embodied in the statute law of another State on public policy grounds[78].

    [77]    AMS v AIF (1999) 73 ALJR 927; 163 ALR 501.

    [78]    cf Loucks v Standard Oil Co of New York 120 NE 198 at 202 (1918).

25. In Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd[79], Rich and Dixon JJ and Evatt J suggested that s 118 precludes the courts of one State from concluding (as the primary judge had in that case) that the application of the statute of another State "would at the stage and in the circumstances in which it was invoked work manifest injustice to or, in effect, a fraud on one of the parties."[80]  And in Breavington, six members of the Court appear to have accepted that s 118 may preclude the refusal of one State to apply the law of another on the grounds of public policy where the law of that other State is otherwise applicable[81]. However, it may also be that s 118 suggests that the constitutional balance which should be struck in cases of intranational tort claims is one which is focused more on the need for each State to acknowledge the predominantly territorial interest of each in what occurs within its territory than it is on a plaintiff's desire to achieve maximum compensation for an alleged wrong.

    [79] (1933) 48 CLR 565 at 577 and 587-588.

    [80]    Moolpa Pastoral Co Pty Ltd v Merwin Pastoral Co Pty Ltd unreported, Supreme Court of Victoria per Macfarlan J cited (1933) 48 CLR 565 at 577 per Rich and Dixon JJ.

    [81] (1988) 169 CLR 41 at 81, 96-97, 116, 133-134, 150.

1. It has been said that the giving of full faith and credit to the law of another State only when the choice of law rules of the forum point to that law "is to give full faith and credit to one's own law rather than to that of the sister‑state, a fact which the unity of the common law in Australia has so far concealed."[82] And there was a deal of debate in the oral argument in the present case about the effect of s 118. Some of those questions were considered in Breavington[83] but not resolved by the formulation of a choice of law rule deriving its force from s 118. However, the terms of s 118 indicate that, as between themselves, the States are not foreign powers as are nation states for the purposes of international law. That apart, it is not necessary in the present matter to resolve other questions respecting s 118. The matter is to be resolved, in our view, by developing the common law to take account of federal jurisdiction as delineated in Ch III of the Constitution and, also, to take account of the federal system in which sovereignty is shared between the Commonwealth and the member States of the federation.

   [82]    D St Leger Kelly, "Chief Justice Bray and the Conflict of Laws", (1980) 7 Adelaide Law Review 17 at 27-28.

   [83] (1988) 169 CLR 41 at 81-82, 95-100, 116-117, 129-136, 150.

   The common law and the Constitution

2. It was said in Lange v Australian Broadcasting Corporation that:

   "    With the establishment of the Commonwealth of Australia ... it became necessary to accommodate basic common law concepts and techniques to a federal system of government embodied in a written and rigid constitution."[84]

   And it was also pointed out that, within the "single system of jurisprudence" constituted by the Constitution, federal, State and Territory laws and the common law of Australia, "the basic law of the Constitution provides the authority for the enactment of valid statute law and may have effect on the content of the common law."[85]

   [84] (1997) 189 CLR 520 at 562.

   [85] (1997) 189 CLR 520 at 564.

3. In Lange, it was held that the common law of qualified privilege should be developed consistently with the existence of the implied constitutional freedom to discuss government and political matters.  So, too, the common law with respect to the choice of law rule for tort should be developed to take into account various matters arising from the Australian constitutional text and structure.  They include:

   .the existence and scope of federal jurisdiction, including the investment of State courts with federal jurisdiction pursuant to s 77(iii) of the Constitution;

   .     the position of this Court as the ultimate court of appeal, not only in respect of decisions made in the exercise of federal jurisdiction;

   . the impact of s 117 and s 118 of the Constitution upon any so-called "public policy exception" to a choice of law rule for tort;

   .     the predominant territorial concern of the statutes of State and Territory legislatures; and

   .     more generally, the nature of the federal compact.

4. The matters we have referred to require that a somewhat different approach now be adopted with respect to Australian torts which involve an interstate element.  Moreover, they favour the adoption of a single choice of law rule consistently in both federal and non-federal jurisdiction in all courts in Australia.

5. In Lange, the common law rule which was propounded with respect to qualified privilege was developed so as to satisfy what the Court identified as the constitutional imperative respecting freedom of communication.  This imperative "operates as a restriction on legislative power" so that "[s]tatutory regimes cannot trespass upon the constitutionally required freedom."[86]

   [86]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 566.

6. The matters we have mentioned as arising from the constitutional text and structure may amount collectively to a particular constitutional imperative which dictates the common law choice of law rule which we favour.  It may be that those matters operate constitutionally to entrench that rule, or aspects of it concerning such matters as a "public policy exception".  If so, the result would be to restrict legislative power to abrogate or vary that common law rule.  However, we leave these questions open, not the least because there were no developed submissions upon them.

7. Finally, we would emphasise that, while the approach to the common law we take in this judgment was at the forefront of the submissions of the present applicant, it was not discussed in the judgments in McKain or Stevens, being decisions which pre-date Lange.

   Choice of law rule – the various possibilities

8. It is convenient to deal first with the choice of law rule.  The various possibilities which emerge from a consideration of the cases and academic writings in this and other jurisdictions are the lex fori, the lex loci delicti, and the proper law of the tort, in each case with or without a flexible exception.

9. There are two main theoretical considerations that point in favour of the lex fori.  The first, which was earlier referred to, is the theory that the forum enforces an obligation of its own creation.  That being so, there is some force in the view that the forum should apply its own laws.  Moreover, it may be said that it is to be inferred that it is the legislative will of the State whose courts are enforcing an obligation of that State's creation that those courts should apply the law of that State to which they owe their origin and from which they derive their authority.  But such an answer can be seen to invite further consideration, especially in a federation.  Even leaving aside any consideration of what follows from a federal system of government, an assertion that the courts of a State apply only the law of that State would seem to be satisfied, in any event, if the courts of the State in question apply that State's own rules to determine what law should be applied.

10. In Europe, reference has usually been made to the lex loci delicti as the law governing delictual liability[87].  The reference to that law has traditionally been founded in notions of sovereignty over the place of commission of the tort giving existence to the obligation which is enforced[88].  And these views competed with those of Savigny[89] and Waechter[90] that precedence should be given to the lex fori[91].  Resort to notions of sovereignty, however, offers no sure and simple basis for preferring one choice of law rule to another.  Especially is that so in a federal system, like Australia, where "sovereignty" is shared between the federal, State, and Territory law areas, each with its own legislature and its own distinct democratic processes.

    [87]    Kahn-Freund, "Delictual Liability and the Conflict of Laws", (1968) II Recueil des Cours 5 at 15-19.

    [88]    See, for example, Bartin, Principes de Droit International Privé, (1932), vol II at 290; Niboyet, Traité de Droit International Privé Français, (1947-1950), vol V, par 1427.

    [89]    Savigny, System des heutigen roemischen Rechts, (1849).

    [90]    Waechter, Ueber die Collision der Privatrechtsgesetze verschiedener Staaten, (1841-1842).

    [91]    See the reference to Savigny in argument in The "Halley" (1868) LR 2 PC 193 at 195.

11. The chief theoretical consideration in favour of applying the law of the place of commission of the tort to decide the substantive rights of the parties (at least in intranational torts) is that reliance on the legal order in force in the law area in which people act or are exposed to risk of injury gives rise to expectations that should be protected.  Similar values can be seen underlying the doctrine of estoppel, the presumption against ex post facto laws and the principles of stare decisis[92].  Moreover, in a federal system, a choice of law rule which proceeds on the footing that the predominant concern of State and Territory legislatures is with acts, matters and things in their respective law areas strikes a balance between the interests of those several legislatures whose laws may be involved in a particular dispute.

    [92]    Rheinstein, "The Place of Wrong:  A Study in the Method of Case Law", (1944) 19 Tulane Law Review 4 at 20-23.

12. Ever since the seminal article by Morris in 1951, "The Proper Law of a Tort"[93], there has been considerable academic and judicial consideration given to whether the "mechanical" application of the lex loci delicti will always give what is thought, a priori, to be a fair or just result.  Cases such as M'Elroy v M'Allister[94], Lautour c Guiraud[95] and Babcock v Jackson[96], in which residents of one jurisdiction were killed or injured in accidents happening in another jurisdiction with which the actors had no contact, have been held out as demonstrating the need for a more flexible rule than the unwavering application of the lex loci delicti.  These kinds of consideration led to the decision of the House of Lords in Chaplin v Boys[97] and are reflected in different views expressed in Breavington[98].  And in the United States, since the Restatement 2d, Conflict of Laws embraced the theory of the proper law of the tort, that approach has achieved widespread use[99].

    [93]    (1951) 64 Harvard Law Review 881.

    [94] [1949] SC 110.

    [95]    The leading decision of the Chambre Civile of the French Cour de Cassation, Cass Civ 25.5.1948, noted in Kahn-Freund, "Delictual Liability and the Conflict of Laws", (1968) II Recueil des Cours 5 at 17.

    [96]    191 NE 2d 279 (1963).

    [97] [1971] AC 356 at 379-380 per Lord Hodson, 392 per Lord Wilberforce.

    [98] (1988) 169 CLR 41 at 76-77 per Mason CJ, 162-163 per Toohey J; cf at 112-114 per Brennan J, 147-148 per Dawson J.

    [99]    See, for example, Symeonides, "Choice of Law in the American Courts in 1998:  Twelfth Annual Survey", (1999) 47 American Journal of Comparative Law 327.

13. More recently, in the United States, at least in the literature on the subject, there has been a revival of support for the lex loci delicti[100].At the same time the effectiveness of the earlier search for the better law by an "interest" analysis, which seeks to determine the law that should be applied by reference to governmental interest in the application of the policy underlying the relevant statute law, has been doubted[101].  Further, the Federal Tort Claims Act of 1948[102] subjects the United States to tort liability "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."

    [100] Korn, "The Choice-of-Law Revolution:  A Critique", (1983) 83 Columbia Law Review 772 at 801; Dane, "Vested Rights, 'Vestedness', and Choice of Law", (1987) 96 Yale Law Journal 1191 at 1194-1204; Laycock, "Equal Citizens of Equal and Territorial States:  The Constitutional Foundations of Choice of Law", (1992) 92 Columbia Law Review 249 at 336-337.

    [101] As to "interest" analysis, see Alaska Packers Association v Industrial Accident Commission 294 US 532 at 547 (1935). See also Currie, Selected Essays on the Conflict of Laws, (1963); Currie, "Comments on Babcock v Jackson, A Recent Development in Conflict of Laws", (1963) 63 Columbia Law Review 1212 at 1233­1243.

    [102] 28 USC §1346(b).

14. A rule which requires or permits courts to choose, as the governing law, the law of the jurisdiction having the most significant connections with the parties or events, leads to difficulties in practice.  As Kahn‑Freund pointed out more than 30 years ago:

    "There is no ultimate distinction between a connecting factor which is 'significant' and one which is 'accidental'.  This is a matter of impression, of feelings, one might almost say an aesthetic matter which defies rational argument for or against.  A discussion of the virtues of connecting factors such as 'place of act', 'place of injury', 'common domicil or residence or nationality of parties', etc, is possible, but not in terms of deductive reasoning.  There are only two methods of argument open to those who participate in such debates:  one is the argument of tradition, the other is the argument of expediency."[103]

    Moreover, it might be thought that, often enough, the search for the proper law of the tort has led, in the United States, to the application of the law of the forum simply because the plaintiff chose to institute the proceedings in that place.

    [103] Kahn-Freund, "Delictual Liability and the Conflict of Laws", (1968) II Recueil des Cours 5 at 36.

15. Adopting any flexible rule or exception to a universal rule would require the closest attention to identifying what criteria are to be used to make the choice of law.  Describing a flexible rule in terms such as "real and substantial" or "most significant" connection with the jurisdiction will not give sufficient guidance to courts, to parties or to those, like insurers, who must order their affairs on the basis of predictions about the future application of the rule.  What emerges very clearly from the United States experience in those States where the proper law of the tort theory has been adopted is that it has led to very great uncertainty.  That can only increase the cost to parties, insurers and society at large.

16. Whatever may be the advantages of a flexible rule or of a flexible exception to a universal rule in the case of international torts, the practical disadvantages are such that neither approach should be adopted with respect to Australian torts which involve an interstate element.

    Lex fori v lex loci delicti

17. Before turning to the question whether the common law choice of law rule should be the lex fori or lex loci delicti, it is necessary to recognise that the place of the tort may be ambiguous or diverse.  Difficulty will arise in locating the tort when an action is brought, for example, for product liability and the product is made in State A, sold in State B and consumed or used by the plaintiff in State C[104].  And the tort of libel may be committed in many States when a national publication publishes an article that defames a person[105]. These difficulties may lead to litigants seeking to frame claims in contract rather than tort (as the NSW Compensation Act anticipated[106]) or for breach of s 52 of the Trade Practices Act 1974 (Cth) or some similar provision. Characterising such actions may be difficult and may raise questions whether the private international law rules about tort or some other rules are to be applied[107].

    [104] cf Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458; Buttigeig v Universal Terminal & Stevedoring Corporation [1972] VR 626; Macgregor v Application des Gaz [1976] Qd R 175; Jacobs v Australian Abrasives Pty Ltd [1971] Tas SR 92.

    [105] McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513; David Syme & Co Ltd v Grey (1992) 38 FCR 303; Berezovsky v Michaels [2000] UKHL 25.

    [106] s 151E.

    [107] Collins, "Interaction between Contract and Tort in the Conflict of Laws", (1967) 16 International and Comparative Law Quarterly 103; Pryles, "Tort and Related Obligations in Private International Law", (1991) II Recueil des Cours 9 at 166­191.

18. Moreover, even if the place of the tort can be located in a single jurisdiction, it will often enough be entirely fortuitous where the tort occurred.  Why, so the argument goes, should the rights of Victorian residents injured when the car in which they are driven (by another Victorian) differ according to whether, if a driver falls asleep and the car runs off the road near the Victorian border, it does so south of Wodonga or north of Albury?  But for every hard case that can be postulated if one form of universal rule is adopted, another equally hard case can be postulated if the opposite universal rule is adopted.

19. It is as well then to compare the consequences of the application, in cases of intranational torts, of the lex loci delicti with the consequences of applying the lex fori.  If the lex loci delicti is applied, subject to the possible difficulty of locating the tort, liability is fixed and certain; if the lex fori is applied, the existence, extent and enforceability of liability varies according to the number of forums to which the plaintiff may resort and according to the differences between the laws of those forums and, in cases in federal jurisdiction, according to where the court sits.

20. From the perspective of the tortfeasor (or in many cases an insurer of the tortfeasor) application of the lex loci delicti fixes liability by reference to geography and it is, to that extent, easier to promote laws giving a favourable outcome by, for example, limiting liability.  If the lex fori is applied, the tortfeasor is exposed to a spectrum of laws imposing liability.

21. From the perspective of the victim (the plaintiff) application of the lex loci delicti can be said to make compensation depend upon the accident of where the tort was committed, whereas, if the lex fori is applied, the plaintiff can resort to whatever forum will give the greatest compensation.

22. In Australia, in all its law areas, the same common law rules apply and any relevant difference in substantive law will stem from statute.  Applying the lex loci delicti will apply a single choice of law rule consistently in both federal and non‑federal jurisdiction in all courts and will recognise and give effect to the predominant territorial concern of the statutes of State and Territory legislatures.  These factors favour giving controlling effect to the lex loci delicti rather than the lex fori.

23. Application of the lex loci delicti as the governing law in Australian torts involving an interstate element is similar to the approach adopted in Canada following the decision of the Supreme Court of Canada in Tolofson v Jensen[108].  Moreover and so far as the subject matter permits, it gives effect to the reasonable expectations of parties.  And it is a rule which reflects the fact that the torts with which it deals are torts committed within a federation.  Accordingly, the common law should now be developed so that the lex loci delicti is the governing law with respect to torts committed in Australia but which have an interstate element.

    [108] [1994] 3 SCR 1022.

    Double actionability rule

24. It is necessary to consider the double actionability rule both in relation to federal and non‑federal jurisdiction.  So far as concerns federal jurisdiction, once it is appreciated that that jurisdiction extends throughout Australia, it follows that a court exercising that jurisdiction with respect to an Australian tort is exercising jurisdiction with respect to events that occurred in its own law area.  That being so, there is no scope for the operation of a double actionability rule.  And that is so whether or not the tort involves an interstate element.

25. So far as concerns non-federal jurisdiction, the question is whether, in a federation, the common law should any longer require double actionability as a threshold test before the courts of one State or Territory will recognise and enforce obligations arising as a result of tortious acts or omissions in another State or Territory.  Somewhat different considerations apply in a context in which the applicable law is the lex loci delicti from those that arise if the lex fori were to be applied.

26. Quite apart from s 118 of the Constitution, it would be incongruous if a State or Territory were to allow a remedy for an act or omission in another State or Territory which did not constitute an actionable wrong under the laws of that latter State or Territory. But application of the lex loci delicti negates that possibility.  Thus, the sole question that arises in relation to a double actionability rule in non-federal jurisdiction is whether the courts of a State or Territory should be obliged to give a remedy in accordance with the law of the State or Territory in which the relevant events occurred when, if the events had occurred in the law area of the forum, none would be given.

1. In Koop the second limb of the rule was stated in terms of non-justification according to the law of the State where the acts occurred, rather than actionability in that State[237].  In both Koop[238] and Anderson[239], however, the defendant's conduct would in fact have been actionable in both jurisdictions.

   [237](1951) 84 CLR 629 at 642 per Dixon, Williams, Fullagar and Kitto JJ; see also Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20 at 23 per Barwick CJ, 27-28 per Kitto J.

   [238](1951) 84 CLR 629.

   [239](1965) 114 CLR 20.

2. In this application, the applicant submits that the question of the applicable choice of law rule for cross-border torts (which had been the subject of full argument in Breavington v Godleman[240] and which resulted in a majority decision[241] in favour of the application of the lex loci delicti) was neither a live issue in McKain[242] nor the subject of any argument or submissions in that case, a matter which was adverted to by the Justices who were in the minority, Mason CJ[243], Deane J[244] and Gaudron J[245].Nor was the correctness of the rule as formulated in McKain[246] challenged in Stevens[247].

   [240](1988) 169 CLR 41 at 45-48.

   [241]Mason CJ, Wilson, Brennan, Deane and Dawson JJ; Toohey and Gaudron JJ dissenting.

   [242](1991) 174 CLR 1.

   [243](1991) 174 CLR 1 at 15, 17.

   [244](1991) 174 CLR 1 at 45.

   [245](1991) 174 CLR 1 at 54, 56.

   [246](1991) 174 CLR 1.

   [247]No party sought to re-argue its correctness: see (1993) 176 CLR 433 at 439.

3. The applicant contends that these and other matters provide a basis for the re-opening of McKain and Stevens.  The other matters are of the kind discussed by Gibbs CJ in The Commonwealth v Hospital Contribution Fund[248], and about which I made some remarks in Esso Australia Resources Ltd v Commissioner of Taxation[249]. 

   [248](1982) 150 CLR 49 at 56-58. See also John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438-439 per Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ.

   [249](1999) 74 ALJR 339 at 368; 168 ALR 123 at 162.

4. Although McKain and Stevens are recent cases, they have not proved to be of simple and easy application.  They were decided by very narrow majorities.  Furthermore, there are aspects of the reasoning of the majority in both cases that cannot be satisfactorily reconciled with quite a deal of the reasoning in Breavington in which there were six different judgments delivered.

1. The correctness of McKain and Stevens has been subject to strong and persuasive criticism by a number of authors:  Nygh[250], Morris[251], Pryles[252], Juenger[253], Hancock[254], Carter[255] and the Australian Law Reform Commission[256].  The principle for which the cases stand has been replaced and amended by legislation in the United Kingdom[257].  There had been earlier attempts to ameliorate its consequences by the House of Lords[258] and the Privy Council[259], and it has been overturned judicially in Canada[260].  It does not represent the universal law of the United States[261]. 

   [250]See Nygh, "The Miraculous Raising of Lazarus:  McKain v R W Miller & Co (South Australia) Pty Ltd", (1992) 22 University of Western Australia Law Review 386 at 394:

   "I believe that the majority judgment in McKain is wrong in principle … There is no logical reason for the double-barrelled rule in Phillips v Eyre".

   [251]Morris, "Torts in the Conflict of Laws", (1949) 12 Modern Law Review 248 and "The Proper Law of a Tort", (1951) 64 Harvard Law Review 881.

   [252]Pryles, "The Law Applicable to Interstate Torts:  Farewell to Phillips v Eyre?", (1989) 63 Australian Law Journal 158 at 181 and "Of Limitations and Torts and the Logic of Courts", (1992) 18 Melbourne University Law Review 676.

   [253]Juenger, "Tort Choice of Law in a Federal System", (1997) 19 Sydney Law Review 529 at 531.

   [254]Hancock, Torts in the Conflict of Laws (1942) at 89 cited in Carter, "Torts in English Private International Law", (1981) 52 British Year Book of International Law 9 at 13.

   [255]Carter, "Torts in English Private International Law", (1981) 52 British Year Book of International Law 9.

   [256]Australian Law Reform Commission, Choice of Law, Report No 58, (1992), par 6.14.

   [257]Private International Law (Miscellaneous Provisions) Act 1995 (UK).

   [258]Chaplin v Boys [1971] AC 356.

   [259]Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190.

   [260]Tolofson v Jensen [1994] 3 SCR 1022.

   [261] There is no single "United States" position.  Under the first Restatement, Conflict of Laws, it was stated, that, with minor exceptions, all substantive questions relating to the existence of a tort claim are governed by the local law of the place of the wrong. 

   Under the Restatement 2d, Conflict of Laws, the general principle is stated in §145:

   "The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in §6."

   The rule for personal injuries is stated in §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 under the principles stated in §6 to the occurrence and the parties, in which event the local law of the other state will be applied."

2. The various matters to which I have referred provide compelling reasons why McKain and Stevens should be reconsidered.

3. The continued application of McKain and Stevens stands, as pointed out by Deane J in Stevens[262], as an open invitation to litigants to forum shop with consequences which could have a significant impact upon the economic, social and other policies of States which have legislated in respect of them differently from other States.  This in turn could lead to diversity of judicial approach.  It is undesirable that courts might be placed in a position which could lead to a perception, however unwarranted, that they are in competition with one another, or may be seeking to attract litigants from other courts.  The present case is a clear example of forum shopping.

   [262](1993) 176 CLR 433 at 462.

4. The applicant not surprisingly embraces in its submissions the reasoning of Mason CJ in Breavington[263].  In Breavington, the Court held, in a case in which a plaintiff who had sustained personal injuries in a motor vehicle accident in the Northern Territory in respect of which he sued for damages in Victoria, that the law to be applied by the Victorian court in determining the entitlement to damages, was the lex loci delicti, the law of the Northern Territory.  Their Honours who sat on the Court (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ) as has been noted, reached this conclusion by different routes.

   [263](1988) 169 CLR 41.

5. There is common thread in the reasons of the minority in McKain and Stevens which does accord with the decision and much of the reasoning in Breavington.

6. Speaking of statutes of limitation in McKain, Mason CJ said this[264]:

   "Moreover, it is simply no longer accepted that all matters which touch upon a remedy are necessarily to be treated as procedural or adjectival.  Thus, the question of what heads of damage are recoverable is now treated as a substantive issue[265] and a statute placing a limit on the amount of damages recoverable is not regarded simply as a matter concerning quantification of damage (which, on traditional analysis, has been treated as a procedural consideration) but rather as an express limitation on substantive liability[266].  In Breavington I rejected the notion that the principles according to which damages for personal injury are to be assessed is a matter of procedure and concluded that the measure of damages is plainly a question of substantive law[267].  It follows that, even if it be correct to say that a statute of limitations only affects the availability or otherwise of a remedy, that circumstance, of itself, should not dictate that statutes of limitation be classified as procedural."

   [264](1991) 174 CLR 1 at 24.

   [265]Chaplin v Boys [1971] AC 356.

   [266]Livesley v Horst Co [1925] 1 DLR 159; Allan JPanozza & Co Pty Ltd v Allied Interstate (Qld) Pty Ltd [1976] 2 NSWLR 192; Breavington v Godleman (1988) 169 CLR 41.

   [267](1988) 169 CLR 41 at 79.

7. In McKain, Deane J adhered to what he had said in Breavington[268] and concluded that whether a matter was merely procedural or substantive depended upon the real effect of the application of the particular law.  His Honour said[269]:

   "In truth, however, the traditional distinction between right and remedy provides no acceptable basis for classifying limitation provisions as procedural and not substantive. As a matter of substance, the unavailability of a remedy by reason of a limitation period will ordinarily be of immeasurably greater significance than the theoretical persistence of the underlying right. Even as a matter of theory, the existence and extent of a remedy is commonly accepted as an incident and measure of a right. A limitation provision, such as s 36(1) or s 82(2), is not directed to regulating court proceedings in any real sense. Where applicable and invoked by a defendant, such a provision deprives a plaintiff of his or her right to a remedy and confers upon the defendant immunity from judgment. Where the law of one jurisdiction, under which a cause of action arises, provides that the action can be brought only within a designated period, the barring of the action after that period is as much a substantive provision of the law of that jurisdiction as was the provision, whether statutory or customary law, which gave rise to the cause of action in the first place. To say that a law which gives rise to a cause of action is substantive but a law which confines the bringing of the action and bars the remedy is merely procedural seems to me to confound reality and good sense." (footnote omitted)

   [268](1988) 169 CLR 41 at 120ff.

   [269](1991) 174 CLR 1 at 48-49.

8. Gaudron J said[270]:

   "It should be noted that the South Australian provisions, when construed in the way I have indicated, are not properly characterized as 'procedural' laws.  On the basis that there is a complete dichotomy between 'procedural' and 'substantive' laws, they are to be characterized as 'substantive'."

   [270](1991) 174 CLR 1 at 62.

9. Their Honours in the minority in Stevens regarded themselves as free to adhere to what they had said in McKain.  Mason CJ in Stevens reiterated and expanded upon what he had said in the earlier case[271]:

   "As I observed in McKain[272], the simplicity of the proposition that matters of substance should be determined according to the law of the cause and matters of procedure according to the law of the forum belies the difficulty of identifying just what is procedural and what is substantive.  In that case, I stated my reasons for rejecting the traditional equation drawn between matters relating to a remedy and matters of procedure[273] and proposed a new criterion for the substance-procedure distinction which has its genesis in the principal reason for drawing the distinction at all.  That criterion characterized as procedural 'those rules which are directed to governing or regulating the mode or conduct of court proceedings'[274].  All other provisions or rules are to be classified as substantive.

   While Deane J and Gaudron J, to a lesser extent, expressed similar opinions in their separate judgments, the majority of the Court chose to follow the traditional approach to the substance-procedure dichotomy and, in the circumstances of that particular case, distinguished between statutes of limitation which cut off resort to the courts for enforcement of the claim and statutes which extinguish a civil liability and destroy a cause of action.  That particular conclusion is relevant only by analogy in this case, however, which deals not with statutes of limitation, however described, but with provisions dealing with the awarding of damages."

   His Honour later discussed the substantive nature of the process of the assessment of damages[275]:

   "In Breavington[276] and again in McKain[277], I expressed my view that provisions or rules dealing with the measure of damages are substantive in nature.  In the latter case, Deane J expressed the same opinion[278].  Although, at first glance, this view might appear to be in conflict with the authorities noted above, a close analysis of precisely what is meant by the assessment or quantification of damages indicates that this conflict is illusory and also illustrates clearly that the appellant's argument must fail."

   [271]Stevens v Head (1993) 176 CLR 433 at 445.

   [272](1991) 174 CLR 1 at 22.

   [273](1991) 174 CLR 1 at 22-27.

   [274](1991) 174 CLR 1 at 26-27.

   [275](1993) 176 CLR 433 at 447-448.

   [276](1988) 169 CLR 41 at 79.

   [277](1991) 174 CLR 1 at 24.

   [278](1991) 174 CLR 1 at 48.

10. In Stevens, Gaudron J explained what had been decided in McKain[279]:

    "The second matter is that no issue arose in McKain as to the substantive law to be applied in that case which was brought in New South Wales with respect to events in South Australia.  It was common ground that it was the law of South Australia.  Only two issues arose.  The first was whether a distinction was to be made between 'substantive law' and 'procedural law', with the New South Wales Court applying its own procedural laws.  The second was whether, if that distinction was to be made, a South Australian limitation provision was to be regarded as procedural or substantive[280].  Some passages in the majority judgment in that case may suggest that the law of the forum applies to determine the consequences which attach to interstate torts, or some of those consequences …  But that is not a matter that was decided by that case.  That is clear from the statement in that judgment that 'the plaintiff conceded that the substantive law of the place of the wrong is "imported into the forum" and that concession is consistent with the second part of the conflict of law rules as we have stated them'[281]."

    [279](1993) 176 CLR 433 at 465-466.

    [280]See, for their respective formulations of the issues, (1991) 174 CLR 1 at 18 per Mason CJ, 33 per Brennan, Dawson, Toohey and McHugh JJ, 46 per Deane J, 56 per Gaudron J.

    [281](1991) 174 CLR 1 at 40.

11. In my opinion what should be regarded as procedural are the laws and regulations which are reasonable and necessary, in the lex fori for the conduct of the action only; that is to say the laws and rules relating to procedures such as the initiation, preparation, and the prosecution of the case, the recovery processes following any judgment and the rules of evidence.  That a test of reasonable necessity is appropriate is consistent with the explanation of Sir William Beckett[282] quoted by Deane J[283] in McKain:

    "Its basis is an obvious practical necessity.  In each country courts are organized in the manner found appropriate by the lex fori, which determines which courts have jurisdiction in different classes of cases, the method in which proceedings must be instituted and the pleadings, written and oral, conducted, the manner and the stage at which evidence must be given and judgment delivered, and the means by which the judgments can be executed.  In all these matters it is obvious that an English court cannot be expected at one time to apply French and at another Japanese procedure, and it is impossible for any law other than the lex fori to apply.  There is absolute unanimity in the systems of all countries that all these matters are governed by the lex fori."

    [282]Beckett, "The Question of Classification ('Qualification') in Private International Law", (1934) 15 British Year Book of International Law 46 at 66.

    [283](1991) 174 CLR 1 at 49.

12. In any realistic and practical sense the application of a statute of limitations will have the most profound of impacts upon the rights of the parties.  With almost equal force the same may be said of provisions limiting either heads of damage or measures of damages, particularly in tort cases.

13. In tort cases the infliction of non-minimal damage is integral to the establishment of the tort and the availability of the remedy:  damage is the gist of the action.  The measure of damage for breach of contract has usually been regarded as a matter of substance.  In Ekins v East-India Co[284] interest on damages for breach of contract was awarded in accordance with the law of the place of the contract[285].  In the first edition of Cheshire's Private International Law[286] the author notes that the measure of damage for breach of contract "belongs to the domain of substantive law".  So too, when status is involved in a case, the courts look to the law where the status, for example of a married person, was created, the place of the marriage[287].

    [284](1717) 1 P Wms 395 [24 ER 441].

    [285]Arnott v Redfern (1826) 3 Bing 353 [130 ER 549]; Fergusson v Fyffe (1841) 8 Cl & Fin 121 [8 ER 49].

    [286](1935) at 531.

    [287]Berthiaume v Dastous [1930] AC 79 at 81.

14. In the first edition of Dicey's The Conflict of Laws, the author stated[288]:

    "Any rule of law which solely affects, not the enforcement of a right but the nature of the right itself, does not come under the head of procedure." 

    [288]Dicey, The Conflict of Laws (1896) at 712.

15. The same opinion as Mason CJ formed in McKain was expressed by La Forest J in Tolofson v Jensen[289].  His Lordship concluded that:

    "the purpose of substantive/procedural classification is to determine which rules will make the machinery of the forum court run smoothly as distinguished from those determinative of the rights of both parties".

    [289][1994] 3 SCR 1022 at 1071-1072.

16. In the United States, the Restatement 2d, Conflict of Laws discusses the distinction between substance and procedure in these terms[290]:

    "These characterizations, while harmless in themselves, have led some courts into unthinking adherence to precedents that have classified a given issue as 'procedural' or 'substantive', regardless of what purposes were involved in the earlier classifications." 

    [290]§122, comment b.

17. The Restatement also uses language such as "how its judicial machinery functions" and "administering the courts' processes"[291].

    [291]§122, comment a.

18. The statutory cap upon damages imposed by the Act is in truth a matter of real substance and should be so treated in the forum in which the trial took place.

19. I would uphold the appeal for the reasons I have stated: that ss 151F, 151G and 151H of the Act form part of the lex loci delicti.  They are matters of substance and not procedure.  They fell for application in the proceedings in the court of the Australian Capital Territory in which the respondent brought his action. 

20. What I have held is sufficient to dispose of the case.  I do not think it necessary or appropriate to formulate any different a rule from the double actionability rule that the majority stated in McKain and Stevens and which I have quoted earlier in these reasons. Nor is it necessary for me to look to the possible application or otherwise of s 118 of the Constitution for the resolution of this case.

21. I would say this however; that the double actionability rule does appear to me to have a real purpose to serve in the Federation. History shows that the model for s 118 of the Constitution, Art IV, s 1[292] of the Constitution of the United States has had a far from uniform construction in that country[293].  The proposition (slightly adapted) stated in Pacific Employers Insurance Co v Industrial Accident Commission[294], that a forum State should not be obliged to apply an obnoxious law of another State[295], is one which has the attraction of reserving to the States a right (in respect of a claim for a remedy in the forum that would not otherwise be available there) to reject that which is alien to the policies of a particular State.

    [292]"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."

    [293]For example contrast Alaska Packers Association v Industrial Accident Commission 294 US 532 (1935) with Pacific Employers Insurance Co v Industrial Accident Commission 306 US 493 (1939).

    [294]306 US 493 (1939).

    [295]306 US 493 at 501 (1939).

1. Section 118 seems, I might say, to have been little discussed during the convention debates. In 1897, in Adelaide, Mr Barton (as he then was) gave several illustrations[296] of the intended operation of s 118 none of which would suggest that a jurisdiction should provide a remedy in its courts in circumstances in which that remedy is repugnant to the laws and policies of the jurisdiction in which a case is brought.

   [296]Official Record of the Debates of the Australasian Federal Convention, (Adelaide), 20 April 1897 at 1005-1006.

2. The respondent, after properly conceding that the point had not previously been taken, sought to argue that the respondent had a case for breach of contract also, and that the law applicable to that cause of action was the law of the Australian Capital Territory:  that such a cause of action was implicit in the respondent's statement of claim; that that case had not been addressed by the intermediate courts; that accordingly the case should be remitted for that issue to be determined; and that, therefore, this was not an appropriate case for this Court to decide finally at this point.  The argument, in that regard must be rejected.  The pleadings do not allege any breach of contract.  The allegation of "breach of duty" was made in combination with allegations and particulars of negligence only, and, were so described in the statement of claim.  The absence of any reference anywhere to contract shows that the respondent chose to frame and pursue his rights by reference to tort exclusively.  The applicant pleaded contributory negligence.  The respondent filed no reply denying the availability of contributory negligence because his remedy was based in contract[297].  The case therefore was framed in negligence only and so litigated[298].

   [297]cf Astley v Austrust Ltd (1999) 197 CLR 1.

   [298]University of Wollongong v Metwally(No 2) (1985) 59 ALJR 481; 60 ALR 68.

3. However, the parties are agreed that the matter does need to be remitted to the Master for further consideration.  Why this is so is stated in the reasons of the majority which I do not repeat and with whose proposed orders I concur.