limitation-Injury caused by negligent act in New South Wales-Death resulting in Victoria-Right of action in Victoria by dependants of deceased- Wrongs Act 1928 (No. 3807) (Vict.), Part III.-Compensation to Relatives Act, 1897- MELBOURNE, 1946 (N.S.W.) (No. 31 of 1897-No. 23 of 1946). Evidence-Action in Victoria in respect of tort committed in "New South Wales-

Proof of New South Wales aw-Pleading-Statement of claim-Whether cause of action disclosed-New South Wales law not pleaded as fact-Judicial notice -State and Territorial Laws and Records Recognition Act 1901-1950 (No. 5 of 1901-No. 80 of 1950), S. 3.

In the present state of authority it must be accepted that an action of tort will lie in one State of the Commonwealth for a wrong alleged to have been committed in another State if two conditions are fulfilled: (1) 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 (2) it must not have been justifiable by the law of the State where it was done.

Per Dixon, Williams, Fullagar and Kitto JJ.: As to the second of the above conditions, it may be the true view that the act complained of must have been such as to give rise to a civil liability by the law of the place where it was done.

Walpole v. Canadian Northern Railway Co., (1923) A.C. 113, at p. 119, and McMillan v. Canadian Northern Railway Co., (1923) A.C. 120, at pp. 123, 124, applied.

Machado v. Fontes, (1897) 2 Q.B. 231, discussed. Slater v. Mexican National Railroad Co., (1903) 194 U.S. 120 [49 Law. Ed. 900], commented on.

84 CLR 630

Naftalin v. London Midland &Scottish Railway Co., (1933) S.C. 259, at pp. 274, 275, M'Elroy v. 'Allister, (1949) S.C. 110, Canadian Pacific Railway Co. v. Parent, (1917) A.C. 195, at p. 205, Varawa v. Howard Smith Co. Ltd. [No. 2], (1910) V.L.R. 509, and New York Central Railroad Co. v. Chisholm, (1925) 268 U.S. 29 [69 Law. Ed. 828], referred to.

In an action brought in the Supreme Court of Victoria on behalf of infant plaintiffs the statement of claim alleged that the plaintiffs' father was a passenger in a motor truck driven by the defendant the truck overturned as a result of the defendant's negligence, causing injury to the father from which he died the plaintiffs were dependent on their father for support. Under the heading " Particulars under the Wrongs Act 1928 " the statement of claim gave particulars of the persons on whose behalf the action was brought and of the nature of the claim. It appeared that the accident had occurred in New South Wales and that the plaintiffs' father had died in

Held that the plaintiffs were entitled to maintain the action in Victoria. By Dixon, Williams, Fullagar and Kitto JJ.: The action…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Koop v Bebb

Details

AGLC: Koop v Bebb [1951] HCA 77
Case: [1951] HCA 77
Decision Date: 20 December 1951

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The plaintiffs, infant children suing by their next friend, brought an action against the defendant for damages arising from the death of their father. The father was a passenger in a motor truck driven by the defendant, which overturned due to the defendant's alleged negligence. The accident occurred in New South Wales, but the father died in Victoria. The plaintiffs, who were dependent on their father, claimed they had suffered loss due to his death. The defendant objected that the statement of claim did not disclose a cause of action enforceable in Victoria, as the negligent act occurred outside of Victoria.

The central legal issue before the High Court was whether the plaintiffs could maintain an action in Victoria for a tort committed in New South Wales, specifically concerning a fatal accident. This required the court to consider the application of Victorian legislation, namely the Wrongs Act 1928 (Vict.), in conjunction with the principles of private international law, and how these interacted with New South Wales legislation, the Compensation to Relatives Act, 1897-1946 (N.S.W.). The court also had to determine whether the statement of claim sufficiently pleaded a cause of action, particularly in relation to proving the law of New South Wales.

The High Court, in allowing the appeal, held that an action in tort may lie in one Australian State for a wrong committed in another if two conditions are met: the wrong must be actionable in the state where the action is brought, and it must not have been justifiable in the state where it was committed. The court reasoned that the Victorian Wrongs Act, by its own force, provided a right of action in Victoria if the deceased would have been entitled to sue in Victoria had they survived. This condition was met because the alleged negligence was actionable under both Victorian and New South Wales law. Furthermore, the court found that the State and Territorial Laws and Records Recognition Act 1901-1950 mandated judicial notice of New South Wales legislation, meaning the plaintiffs were not required to plead the New South Wales Act as a fact. The court concluded that the statement of claim sufficiently disclosed a cause of action.

Orders