Nalpantidis v Stark

[1996] HCATrans 241

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A15 of 1996

B e t w e e n -

CON NALPANTIDIS

Applicant

and

ANDREW STARK

Respondent

Application for special leave to appeal

DAWSON J

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 14 AUGUST 1996, AT 2.52 PM

Copyright in the High Court of Australia

MR D.M. QUICK, QC:   May it please the Court, I appear with my learned friend, MR M.J. KERNOT, for the applicant.  (instructed by Palios Meegan & Nicholson)

MR T.A. GRAY, QC:   May it please the Court, I appear with MR M.C. LIVESEY, for the respondent.  (instructed by Ward & Partners)

DAWSON J:   Mr Quick.

MR QUICK:   For the purpose of this application, the Court should have an appeal book and, as well, an agreed book of cases, together with an outline of submissions by myself on behalf of the applicant and also one by my learned friends, Mr Gray and Mr Livesey, for the respondent.

DAWSON J:   Yes.

MR QUICK:   The facts giving rise to this application are as follows:  on 27 June 1990 the plaintiff and ‑ ‑ ‑

DAWSON J:   We have read the papers and we know the facts, Mr Quick, if that saves you time.

MR QUICK:   It certainly does.

KIRBY J:   Accident in Victoria - South Australian plaintiff.  That is the essence of it.

MR QUICK:   As well, South Australian defendant; South Australian registered and insured vehicle; no other vehicle involved; no connection with Victoria, save for the fact that the accident actually happened there.

DAWSON J:   Very well.

MR QUICK:   One other matter:  it was a very short trip - surfing trip, actually, into Victoria for the day and the plaintiff and the defendant were on the way back to Port Macdonnell in South Australia when the accident occurred and, as I have said, not involving any other vehicle.

The defendant, in answer to the proceedings, objected that there was no common law entitlement. Proceedings were instituted in the District Court of Adelaide and the defendant objected that there was no common law entitlement in Victoria having regard, in particular, to section 93 of the Transport Accident Act 1986 of Victoria. The judge, before whom the matter came, referred the matters for the opinion of the Full Court of the Supreme Court by means of a case stated and by a majority of two to one, the court answered certain questions, and I will come to the findings of the court immediately.

May I take the Court to the application book at page 50 and to the bottom of the page?  This page is part of the reasons for decision of Chief Justice Doyle with whom Justice Bollen agreed.  At line 43, the very bottom of the page, his Honour held:

The plaintiff, on the facts in the Case Stated, has no right under Victorian law to claim damages for his injury.  Or, to put it more precisely, by the law of Victoria where the accident happened and the injury was sustained, there is no civil liability for injury on the part of the defendant to pay damages for that injury.  The liability would arise if the conditions of sub‑sections (2)‑(6) -

that is of section 93 of the Victorian Act -

were satisfied, but these provisions are not procedural requirements to be disregarded by South Australian law.  This is not, to my mind, a case in which a civil liability has been extinguished.  It is a case in which a circumstance essential under the law of the place to the existence of the civil liability has not been established.

His Honour then held, in effect, that the action for damages in respect of negligence under a motor vehicle accident occurring in Victoria had been abolished by section 93 of the Victorian Act.

DAWSON J:   This is a case in which McKain v Miller was applied, is it not?

MR QUICK:   It is but there was a difference between the ‑ ‑ ‑

DAWSON J:   Let me just question a little further.  You do not take any exception to that, the fact that McKain v Miller, which is a recent decision of this Court, was applied and applied correctly so far as it went, you would say?

MR QUICK:   Yes, your Honour, there being a division between members of the court as to whether or not McKain effectively put an end to the argument about whether or not a flexible exception exists.

DAWSON J:   That is the point.

MR QUICK:   That is the point.

DAWSON J:   Yes, well, if you develop that.

MR QUICK:   It will not take very long to develop that.  That is a very shortly stated point.

DAWSON J:   But that is the only point, is it not?

MR QUICK:   There are two points in the application for leave.  That is one of them.

DAWSON J:   Yes.

MR QUICK:   As to that point, there is a clear division of opinion between the majority of this Court and of Justice Debelle.  Justice Debelle held that in McKain’s Case, whilst the majority judgment recognised the existence of the flexibility exception and made some comments in relation to it, they did not expressly exclude it and it may well be that the rule still exists.

DAWSON J:   They did not adopt it, did they?

MR QUICK:   Not expressly, no.

DAWSON J:   Even implicitly?

MR QUICK:   Save, your Honour, I would say this, that the particular passage referred to and relied upon both by Chief Justice Doyle and also by Justice Debelle recognises that there might be circumstances in which a need for a flexible rule exists.

DAWSON J:   Well, if you take us to the passage.

MR QUICK:   I will, your Honour.  It is in the book of cases and appears at ‑ ‑ ‑

KIRBY J:   Unfortunately, I did not receive the book of cases.  Do you have a spare copy?  The other Justices received them but it did not come to me.

MR QUICK:   Can I just hand up a copy?

KIRBY J:   Yes.  I am in a distant part of the building and it may be somewhere between.

MR QUICK:   I am sorry if it has occurred, your Honour.

DAWSON J:   What page is it, Mr Quick?

MR QUICK:   At page 39 of the judgment in McKain v Miller 174 CLR 1 which is in the book of cases. It is behind the first of the coloured dividers. Does the Court have it? The particular passage is at page 39. There was reference first to the - I am sorry, the particular passage is referred to in the judgment of Justice Debelle which appears in the application book at page 57. He refers to McKain’s Case at page 38, where the Full Court say, that is, the majority say at page 38 in McKain’s Case, after referring to the judgment of Chief Justice Mason in Breavington, as follows - I am reading from about the sixth line on page 38:

His Honour saw no reason (at least in the circumstances of that case) “to depart from the lex loci deliciti as the primary or basic law to be applied”.  Provided effect be accorded to statutes which are part of the lex fori, this approach is similar in its operation to that favoured by Brennan and Dawson JJ.  But his Honour’s reference to the lex loci delicti as the primary law to be applied suggests that his Honour regarded the underlying principle, applicable to torts occurring outside as well as to torts occurring inside Australia, as having some degree of flexibility, sufficient to accommodate a case where he parties had no substantial connection with the lex loci delicti.  We do not wish to foreclose future consideration of the question whether the Phillips v Eyre rule (as we state it in this judgment) is suitable for application to actions arising from torts occurring outside Australia but, mindful of the freedom of intercourse throughout this country and the general similarity of the laws in force in the various parts of Australia (to which the Chief Justice referred in Breavington v Godleman, the overwhelming desideratum in a rule for intranational torts is certainty of application or, more accurately, as much certainty as the subject matter admits.

DAWSON J:   Really, one has to go then to the last line of the next paragraph, or perhaps the last two lines.

However, the flexible exception would apply only in special circumstances - - -

MR QUICK:   Yes, and your Honour that ‑ ‑ ‑

DAWSON J:   No, but you have to read on:

where “the lex loci delicti has no real connection with the proceedings”.  As such circumstances would be out of the ordinary in cases of intranational torts, and as it is now 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, we think it right to adopt rules expressed in more categorical terms.

Then it is expressed in terms which exclude the flexible exception.

MR QUICK:   Your Honour, we would submit that the passage before those last couple of lines, namely the passages that recognise that in special circumstances there might be a need for such a provision, and in circumstances out of the ordinary there might be a need for such a provision, but those are circumstances in which the flexible exception might still operate.  That was the way in which Justice Debelle understood, as I read his judgment, the dictum in McKain’s Case of the majority.

DAWSON J:   It not a more natural way of reading it to read it as saying that the flexible exception is not applicable in the case of intranational torts?

MR QUICK:   As to that, your Honour, all I can say is there is a division of opinion as to whether or not that is the case.  Justice Debelle thought that this did not exclude it and that there might well be a need in justice and also in the words actually used permitting the rule still to exist.  I found this morning a case not referred to in our list of authorities or in the argument, but a case decided by Chief Justice Miles of the Supreme Court of the Australian Capital Territory, in which it appears that his Honour also read this same passage as permitting of a flexible exception in limited circumstances, namely, the circumstances where there is no real connection with the law of the place of the accident.  That was a defamation case.  I will give the Court the name in a moment.  Where there is no real connection but also where the real connection is with another jurisdiction.

DAWSON J:   Now, that is the next point:  if you say that the flexible exception does apply, you have to point to special circumstances.  The gist of that passage is special circumstances will not exist with intranational torts because there will always be some connection with the lex loci.  That is the applicable law.

MR QUICK:   In this case we would say that the facts are such that the special circumstances exist by the very nature of the fact that everything points to South Australian law being the appropriate law, whereas there is nothing other than the accident - of it happening in Victoria.

DAWSON J:   There are those who think the lex loci is always the appropriate law.

MR QUICK:   That is a matter which we would submit needs to be determined on the hearing of the merits of this application, but at the moment there is a division ‑ ‑ ‑

DAWSON J:   That demonstrates that the lex loci, if it is the lex loci, has a connection in cases of this sort.  That is where the accident occurred.  It has been said, I think, by the former Chief Justice that most people would think that the law that applies is the law where the accident occurs.

MR QUICK:   That is really the issue to be determined.

GAUDRON J:   That issue has been determined in this sense:  it has been authoritatively determined that the rule to be applied is that as stated at page 39 of McKain v Miller.  It is a formulation which allows no room for flexible exception and it is preceded by a statement which strongly indicates that that is its intention.

MR QUICK:   Your Honour, all I can say in relation to that is Justice Debelle understood McKain to read differently.  As I have pointed out, Chief Justice Miles of the ACT Supreme Court also did in the case of Woodgerv Federal Capital Press 107 ACTR 1. I have had copies brought into Court today, and the particular passage appears at the foot of page 36 and the top of page 37. That was a defamation case. In that case, his Honour, after reviewing Breavington and after referring to McKain, came to the conclusion that there might still be occasion for a court considering an intranational tort to determine whether or not it would apply the law of the forum in these circumstances or the law of the place where the tort occurred.

KIRBY J:   That would introduce a great element of uncertainty in the application of the McKain principle which appears to be the purpose of the Judges who sat in that case to put to an end.  Why, given that we are informed in the respondent’s submissions, which attach the Attorney‑General’s notice, that this matter is going to lead to legislation, why should we bring this up when McKain seems simple?  The principle for which you argue is rather complex and unsettling of the principle in McKain, and in any case, the whole thing looks as if it is going to be the subject of legislation in every jurisdiction.

MR QUICK:   There are a number of points that your Honour has made to me.  Can I deal with them one by one?  Dealing, first of all, with the question of whether or not McKain is straight forward or whether or not there will need to be a complicating addendum to the rule as it appears in McKain’s Case.  The rule can be quite simply stated and capable of clear application provided it is made clear that the rule has to be for unusual cases, out of the ordinary, and where there is no real connection with the ‑ ‑ ‑

KIRBY J:   That opens up a whole Pandora’s box of factual circumstances.

MR QUICK:   One other matter that I would refer to:  in McKain’s Case, it appears that the rationale for laying down the rule was twofold.  One was the need for certainty, and the second was that it was on the basis that there was no real difference between the laws of the various States involved.  We know in this case that there is a substantial difference between the law of Victoria and the law of South Australia.  That being the case, one of the underlying reasons for adopting, if I might say so, the unqualified rule by majority, if that is what they did decide, was that there was no real difference between the laws of the two States.  That is not the case here.  There is a substantial difference. 

Your Honour Justice Kirby raised with me the question of the amendments to the legislation.  In answer to that, all I can say is this:  we do not know if it will occur, in what form it will occur, and it may well be that the form in which it does occur is dependent upon the existence or non‑existence of a flexible rule of exception to the second limb of the basic rule.

KIRBY J:   I agree.  It should be given very small, if any, weight, because what happens to legislation, especially national, agreement is very uncertain.  But, in this field we do know that there was agreement earlier and legislation was enacted around the country to try to settle some of the concerns, and this is an area where there has been a lot of uncertainty in various States outside this area.  I think it seems probable that something will eventuate.  I agree it should not be given a lot of weight because we just do not know.  It is guesswork.

MR QUICK:   If the Court pleases, I will press on.  There is a second special leave point.  I say nothing further, bearing in mind the time limitation in relation to that.

The characterisation of section 93 of the Victorian Motor Accidents Act has been substantive rather than procedural and according to the criteria for characterisation laid down in Stevens v Head ‑ ‑ ‑

GAUDRON J:   Is that not something of a red herring in the circumstances of this case?  Is not the question whether there is civil liability under the law of Victoria?

MR QUICK:   That is the question and, indeed, that is the way I have framed the special leave point in the forefront of our submissions.

GAUDRON J:   Yes.  Well, what, whether it is procedural or substantive really got to do with it?

MR QUICK:   If the law is procedural then for the purposes of the conflict of laws applications it is to be disregarded altogether, and we apply the law of the forum instead.

GAUDRON J:   Yes, but if the law is one that says there is no liability, that is what it says.  It is a pointless exercised to then go and attempt to characterise it as procedural.

MR QUICK: Section 93 does not say that. It assumes the existence of liability by reason of some other source than the enactment, itself. It limits the liability by determining that certain heads of damages will not be available and it prescribes that unless certain procedural steps are undertaken and certain things achieved, then a court in Victoria is not to award damages at all. Our submission is that the decision that the decision which has been reached in this case, that is by the Full Court here, is inconsistent with the reasoning in Stevens v Head which was in connection with a section which was similar in terms to section 93 of the Victorian Act, although it concerned the New South Wales Act, and held that that was a procedural statute which did not remove a cause of action but simply modified the way in which a court was to proceed in connection with the assessment of damages.

As such, liability had not been abolished in New South Wales and, therefore, it is our submission that the same reasoning ought to apply to the Victorian legislation, and that it ought to be held that section 93 has not taken away the cause of action in Victoria and, hence, there still exists an action there and, hence, there should still be an action here according to the two-limb rule laid down in McKain’s Case.

In dealing with that point, we have drawn attention to the fact that there seems to be, as your Honour Justice Kirby remarked in a New South Wales decision as part of the Court of Appeal ‑ ‑ ‑

DAWSON J:   I see your time has expired, Mr Quick.  We have your written submissions.

MR QUICK:   If the Court pleases.

DAWSON J:   We need not trouble you, Mr Gray. 

The rule which was applied in this case is that laid down in McKain v Miller.  That does not allow, in the circumstances of this case, being those of an intranational tort, any room for the application of a flexible exception.  No special leave point otherwise arises.  There is, therefore, no basis for the granting of special leave to appeal and special leave to appeal is accordingly refused.

MR GRAY:   An application is made for costs, if the Court pleases.

DAWSON J:   Can you say anything about that, Mr Quick?

MR QUICK:   In the argument we have drawn attention to the fact that the defendant is really not a defendant in person but behind him stands a motor vehicle insurer pursuant to a statutory action.  The point at issue was one which was brought for its benefit as much as anyone else’s and, in those circumstances, it is our submission that there should be no order for costs made against the applicant.

DAWSON J:   The application will be dismissed with costs.

AT 3.14 PM THE MATTER WAS CONCLUDED