O'DRISCOLL v J Ray McDermott, SA - [2001] WADC 198

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: O'DRISCOLL -v- J RAY McDERMOTT, SA [2001] WADC 198

CORAM: NISBET DCJ

HEARD: 31 JULY 2001

DELIVERED : 23 AUGUST 2001

FILE NO/S: CIV 4160 of 1998

BETWEEN: PETER O'DRISCOLL
Plaintiff
AND
J RAY McDERMOTT, SA
Defendant

Catchwords:

Private international law - Contract - Tort - Workers' compensation - Assessment of damages - Choice of law rules - Plaintiff in Western Australia - Offered employment by defendant company off-shore - Injured in Indonesian waters - Trial of preliminary issues

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (WA)

Rules of the Supreme Court of Western Australia

Result:

Issues determined in part only

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr A R Beech

Solicitors:

Plaintiff: Friedman Lurie Singh
Defendant: Phillips Fox

Case(s) referred to in judgment(s):

Akai Pty Ltd v People's Insurance Co Ltd (1996) 188 CLR 418
Allan J Panozza& Co Pty Ltd v Allied Interstate (Qld) Pty Ltd [1976] 2 NSWLR 192
Bonython v Commonwealth (1950) 81 CLR 486
Breavington v Godleman (1988) 169 CLR 41
Chellaram v Chellaram [1985] Ch 409
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1
James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583
John Pfeiffer Pty Ltd v Rogerson (2000) 172 ALR 625
Libyan Arab Foreign Bank v Bankers Trust Co [1989] QB 728
McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
Nalpantidis v Stark (1995) 65 SASR 454
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Phillips v Eyre (1870) LR6QB 1
Rahim v Crawther (1996) 17 WAR 559
Regie Nationale des Usines Renault SA v Fuzu Zhang (2001) 1 Leg Rep SL 1
Stevens v Head (1993) 176 CLR 433
Wenham v Ella (1972) 127 CLR 454
Zhang v Regie Nationale des Usines Renault SA [2000] NSWCA 188

Case(s) also cited:

Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20
Koop v Bebb (1951) 84 CLR 629
Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418
Gardner v Wallace (1995) 184 CLR 95
Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463
Helmers v Coppins (1961) 106 CLR 156
Starr v Douglas (1994) 35 NSWLR 133
Thompson v Hill; Clarke v Fowler (1995) 38 NSWLR 714
Vita Foods Products Incorporated v Unus Shipping Co Ktd (in Liq) [1939] AC 277

NISBET DCJ: On 21 January 2000 the Principal Registrar of this Court, presiding over a pre‑trial conference between the parties, ordered that the conference be adjourned to a listing conference to be held on 7 March 2000 "for the allocation of a date for the determination of a preliminary issue". The preliminary issue was not defined. Similarly by the time the matter came before a Registrar on 7 March 2000 the preliminary issue had still not been determined and yet it was ordered to stand for trial on 19 July 2000. On 19 July 2000 when the matter came on for hearing in a trial list before a Judge of the court he noted the deficiencies in the adherence to the Supreme Court Rules and gave certain procedural directions such that the parties agreed the matters which were to stand for determination at a trial of preliminary issues. Six matters were identified as requiring determination as a preliminary issue as follows:
"1.On the issue of the proper law of the contract to the extent the plaintiff's claim is based on contract, is the proper law of the contract relating to liability the laws of:
(a)Republic of Singapore;
(b)State of Western Australia;
(c)Republic of Indonesia;
(d)Republic of Panama.
2.To the extent the plaintiff's claim is based on contract, is the proper law of the contract relating to the issue of quantum the laws of:
(a)Republic of Singapore;
(b)State of Western Australia;
(c)Republic of Indonesia;
(d)Republic of Panama.
3.To the extent the plaintiff's claim is based on negligence is the applicable law on liability the laws of:
(a)Republic of Singapore;
(b)State of Western Australia;
(c)Republic of Indonesia;
(d)Republic of Panama.
4.To the extent the plaintiff's claim is based on negligence is the applicable law on the issue of quantum the laws of:
(a)Republic of Singapore;
(b)State of Western Australia;
(c)Republic of Indonesia;
(d)Republic of Panama.
5.Does the plaintiff's claim arise out of circumstances of such a character that, if they had occurred in Western Australia, a cause of action would have arisen entitling the plaintiff to enforce against the defendants a civil liability of the kind which the plaintiff is claiming to enforce?
6.Does any part (and, if so, which part or parts) of Division 2 of Part 4 of the Workers' Compensation and Rehabilitation Act (WA) 1981 apply to the plaintiff's claim?"
The only witness called in the trial of the preliminary issue was the plaintiff. He testified as to the circumstances of his engagement by the defendant. The defendant is engaged in the business of dealing with off‑shore installations in the oil and gas industry and the plaintiff is an experienced quality control supervisor in the same industry. He said that engagements are often made over the telephone and occasionally by response to advertisement. In any event he said that on 25 March 1992 he attended an interview with a representative of the defendant in Perth, at an office in the city. During the course of the interview he was asked a series of questions concerning his knowledge and experience in the industry. He then said:
"After Mr Evans had interviewed me he said that it looks like I would be a suitable candidate for the position that was being offered, and we went through the scope of work, the requirements that I would have to do, briefly outlined the salary, briefly outlined the schedule of work, and what was due. The first contract was Balleda field, and it was left there. He said that it looks like I was a suitable candidate for the position.
What happened subsequently?---I received I think it was a telephone call from Lyn Evans saying that I was successful with the interview. However I would have to go to Singapore, and in Singapore a contract would be signed and my scope of work would be further outlined with conditions, with conditions of pay.
Did you know where Mr Evans was calling from? Was he still in Perth?---He may have gone back to Singapore by then. It could have been a few days later.
So what happened then?---I received air tickets saying would I fly to Singapore. I went to Singapore. I put my notice in with Attwood Oceanics that I was working for at the time, which was month (sic). I flew to Singapore possibly on 2 or 3 May. I can't remember the exact dates. They put me up in a hotel, the Boulevard Hotel in Singapore. I was collected at the hotel, taken into the office in Shipyard Road in Jerong. From there my scope of work was outlined, my salary was briefly talked about, and then I went up to administration and there the contract was given to me. I was asked to look at the contract and sign the contract if I was happy with it.
Had you seen any sort of contract at all when I was in Perth? (sic).---Yes, a sort of brief - no name on the top, my name was not on the top obviously, I hadn't been employed. There was a brief outline of what the schedule would be, 90 days on without any leave. They said for every three days that I work I would get one day off with pay. It was quite brief. He was more interested in what I could perform on the job. That's what Lyn was after, and the details were sorted out when I was in Singapore."
The plaintiff went on to describe a feature of his engagement by the defendant which was not in dispute, namely that he entered a series of fixed term contracts each for a specific job in different locations in South East Asia. He said that if these contracts went longer than three months he invariably worked three months on, one month off, and he would occasionally spend that month in Western Australia and occasionally elsewhere, there being no obligation for him to return to Western Australia for his holidays.
As to the last of his engagements with the defendant, that during which he claims to have been injured in circumstances the subject of the claim to this Court, he said:
"Yes, I'd been away for over the Christmas break. I flew back to Singapore and I think it was 8 January, at McDermott's request, and on 9 January, I looked at a new contract. I reviewed that contract. There was a small matter with regards to salary that the then quality manager Ricky Cardno said that he would fix, and I signed the contract there in Singapore on 9 January.
At the time you signed it, had it been signed by the defendant?‑‑‑Negative, no.
Would you look at this document? If you can confirm that this is a copy of the contract that you signed?---Yes, that's correct. It was dated the 9th, yes. That's the date I was in Singapore. (9th January 1995.)
…
The defendant seems to think that you signed it in Thailand, or off Thailand. What's your recollection of that?---My recollection is that I did sign a contract in Singapore on the 9th. Even my diary entry, everything says it was in Singapore on that particular day, and I made a note to the effect that Ricky is to fix up the rate of pay."
As these passages of transcript reveal, the plaintiff was attempting to paint a picture that whilst there were initial discussions held in Perth between him and a representative of the defendant with a view to him being offered employment, no formal contract of employment was finalised either orally or in writing until he went to Singapore. Additionally, as to the last of the plaintiff's engagements by the defendant, his evidence disclosed that in his view the last contract was entered into in Singapore and only some incidental feature of it was signed up or finalised whilst he was working in Thailand.
During the course of his cross‑examination, however, it became clear that the plaintiff's evidence was in direct conflict with earlier statements he had made in relation to the circumstances of his employment. He swore an affidavit on 22 February 1999 which was filed in this Court on 5 March that year in which he deposed as follows:
"4.1(a)When I was engaged on behalf of the defendant by Mr Evans in Western Australia some time on or about 25 March 1992, I was told that the defendant had a number of companies in South East Asia and I would be seconded to various of the defendant's group of companies for the purposes of particular projects which could be in Singapore, Indonesia, Thailand and Malaysia. As far as I knew the defendant's head office was in Singapore;
(b)I was told that the terms of my employment would be in standard form. I was given 'P-1' which is the annexure to my previous affidavit confirming the terms of my employment in Western Australia subject to agreement on matters such as pay and location;
(c)I have always assumed that 'P-1' contains the contract terms between the defendant and myself and any variation in pay or location of my employment would be recorded in a supplementary 'employment agreement' (because I assumed the defendant used standard form documents with its employees);
(d)to the best of my recollection I was in Thailand on behalf of the defendant working for another company in the defendant's group of companies. The defendant's head office in Singapore contacted me to say that they would be sending to me another contract to continue my employment with the defendant's group of companies in the South East Asian region. I recall receiving the document which may be the agreement marked 'RAL-1' to the affidavit of Robyn Angel Lee on behalf of the defendant in this action. I signed and returned the document to the defendant's head office in Singapore and was subsequently sent to Indonesia by the defendant.
4.2For rest breaks I returned to Western Australia as my 'home base'."
In his statement of claim the plaintiff pleaded particulars of breach of contract as follows:
"(a)The plaintiff was, at the material time, employed by the defendant pursuant to a contract of employment concluded in the State of Western Australia;"
In my opinion when the plaintiff was giving evidence he presented as a person who was alive to the benefit of him now saying that his initial engagement was in Singapore and not in Western Australia. The only other explanation for the difference between the plaintiff's oral testimony and his affidavit of February 1999 was that at the time he swore the affidavit he saw a benefit in establishing that his employment was in Western Australia with a view to persuading this Court that it had jurisdiction to entertain the action when faced with an application by the defendant to strike out the claim on the basis of lack of jurisdiction pursuant to the provisions of O 12 r 6(2). In either case it demonstrates that the plaintiff is an unreliable witness when it comes to determining the true nature of the circumstances surrounding the formation of the contract of employment between him and the defendant.
In my opinion this observation is particularly well made having regard to the fact that on the court file there is also an affidavit sworn by the plaintiff 31 August 1998 in action number 206 of 1998 in which he is described as the "intended plaintiff" and the defendant as the "intended defendant". This affidavit was referred to by the plaintiff in par 2 of his affidavit sworn 22 February 1999 in this action, which affidavit I have previously referred to. In the affidavit sworn 31 August 1998 in action CIV 206 of 1998, the plaintiff deposed in par 4.1:
"Some time on or about 25 March 1992 I was recruited in Western Australia by an agent of the intended defendant for employment as a senior QC inspector in the South East Asian region. On 25 March 1992 I attended an interview with Lyn Evans, chief inspector, McDermott South East Asia Group and I was informed that the intended defendant was a member of this group. It was an American group of companies providing industrial services in South East Asia. Mr Evans and I discussed my recruitment, conditions relating to work scope, salary package and rest and recreation ('R and R') terms. I was then and there recruited by Mr Evans." (My emphasis.)
Accordingly, it is my opinion that the evidence establishes that the first contract entered into by the plaintiff with the defendant was entered into in Perth, Western Australia on 25 March 1992 for performance in various parts of South East Asia.
It was common ground between the parties that after his initial engagement the plaintiff flew to Singapore and from there commenced work with the defendant on fixed term contracts of employment. These were to be performed at different locations in South East Asia. The arrangement was that upon the completion of each contract the plaintiff would return to Singapore, complete paperwork in respect of that contract whereupon he would be paid off and then re‑engaged for another separate contract at a different location. The periods varied and it seems obvious that the reason why the defendant chose this method of engagement was that it could only offer employment for its work force for existing projects and if the work finished and there was no more on offer, then that was an end to the matter.
As to the place of execution of the last contract entered into between the plaintiff and the defendant, it says in its terms that it was executed in Thailand, however, in this regard I accept the evidence of the plaintiff that it is more probable than not that with regard to this contract, it was entered into in Singapore but some aspect of its documentation was not completed until after the plaintiff had left Singapore and gone to Thailand.
Again, I think it is common ground between the parties that of the other contracts entered into by the plaintiff other than the first and the last, these were all offered by the defendant to the plaintiff whilst he was in Singapore, accepted by the plaintiff whilst in Singapore so that those engagements were all concluded there.

The proper law of the contract - liability (The first issue)

Absent an express provision in the contract by which the parties have chosen the proper law of the contract, an Australian court will examine the contract and the circumstances of its formation to determine whether or not the parties have evinced a common intention as to the system of law to govern the contract: Akai Pty Ltd v People's Insurance Co Ltd (1996) 188 CLR 418 at 441. The proper law of a contract is the law which defines the respective rights and obligations of the contracting parties: Bonython v Commonwealth (1950) 81 CLR 486 at 498; and see also Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 217. In this regard Australian courts will look for the system of law with which the contract in question has its closest and most real connection: Bonython, Oceanic Sun Line (supra).
The time at which the court must look to determine the proper law of the contract is the time of the formation of the contract: James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583 at 614 ‑ 615. Nevertheless it should be observed that if there is a change in the contractual arrangement between the parties this could result in a choice of a different proper law of the contract as would have been determined if found at the date the contract was entered into: Libyan Arab Foreign Bank v Bankers Trust Co [1989] QB 728 at 746.
In my opinion, it is not to the point that the initial engagement of the plaintiff by the defendant was in Perth. The contract between the parties which falls for determination is that which was in existence at the time the alleged breach occurred, ie, the contract entered into on 9 January 1995. In my opinion the proper law of this contract is the law of the Republic of Singapore insofar as any liability might attach to the defendant for an alleged breach thereof. My reasons for coming to this opinion are that, in looking for the system of law with which the contract has the closest connection, I have already found that the contract was entered into in Singapore. Whilst the place of performance of the contract was to be in "South East Asia", according to its terms, the performance of that contract appears to have been at all times supervised and managed from the Republic of Singapore. It was to Singapore that the plaintiff had to return upon the completion of the work in order to complete his reports and "sign off" on his contract. The contract was not complete until the performance of these functions in Singapore. The language of the contract is English. There was no evidence as to what is the official language of the Republic of Singapore however, to the extent that I might take judicial notice of that fact, courts of the Republic of Singapore communicate with this Court in English. Whilst it is true that the plaintiff said in his affidavit previously referred to that he returned to Western Australia for his "rest breaks" during the course of the performance of his various contracts with the defendant, and maintained a residence (and, it would appear, a family) in Western Australia this to me is not a factor which outweighs those I have already mentioned although, of course, the place of residence of the parties to a contract can be a factor taken into account in determining where the most real connection with the contract is: Chellaram v Chellaram [1985] Ch 409 at 425. In any event in evidence the plaintiff said he only sometimes returned to Western Australia for his rest breaks.

Proper law of the contract - quantum (The second issue)

Ordinarily speaking (and some particular law of the Republic of Singapore to one side) the object of the assessment of damages for breach of contract is to put a plaintiff who has sustained a breach of a contract in the same position as he would have been in had the contract been performed. This is the law in Australia: Wenham v Ella (1972) 127 CLR 454 at 471; Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 at 11 ‑ 12 and Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64. In these circumstances therefore it would be surprising if the proper law of the contract was that of the Republic of Singapore, ie, the law which had to determine what were the rights and obligations of the parties under the contract, and some other law was to be applied in the assessment of damages for its breach. There is authority which suggests that the assessment of quantum of damages for breach of contract is generally determined by the proper law of the contract: Allan J Panozza& Co Pty Ltd v Allied Interstate (Qld) Pty Ltd [1976] 2 NSWLR 192 and Stevens v Head (1993) 176 CLR 433 at 458; 112 ALR 7 at 24 ‑ 25, although, I would not put the matter as strongly as was put by counsel for the defendant because the majority in Stevens v Head explaining Panozza said of it that:
"The proper law of a contract of carriage was taken to be the law of Queensland which contained a provision limiting the liability of a carrier. On appeal in an action commenced against the carrier in the District Court of New South Wales, the provision was held to be 'an express limitation upon the substantive liabilities arising under a contract to which the Act applies' and the limitation was accordingly held to be effective. Where the sources of the rights and obligations of contracting parties are in part the express terms of the contract and in part the provisions of its proper law, the courts of the forum are constrained to ascertain the parties' rights and obligations from those sources, not from the lex fori. In our respectful opinion, there is no valid analogy between the rules for determining the contractual rights and obligations arising in part from the proper law of the contract and the conflict of law rules governing the assessment of damages in respect of extraterritorial torts. When a plaintiff is entitled to enforce a civil liability in tort in respect of a tort committed outside the forum territory, the quantification of damages to be awarded in respect of the tort is a matter for the law of the forum. The quantification of damages is a matter distinct from the kind of civil liability in respect of which damages are to be quantified."
I have included the full quotation of this passage because that concerning torts is apt for the remaining issues for determination.
For present purposes, however, I think I can conclude with reasonable safety that the assessment of damages (for any proven breach of a contract the proper law of which is that of the Republic of Singapore) is to be done according to the laws of the Republic of Singapore.

Choice of law for tortious liability (The third issue)

The choice of law rules governing international torts are presently in a state of flux. Until the decision of the High Court in John Pfeiffer Pty Ltd v Rogerson (2000) 172 ALR 625 the choice of law rules applied in Australia followed the revised statement in Phillips v Eyre (1870) LR 6 QB 1 explained by the High Court for the Australian federation in Breavington v Godleman (1988) 169 CLR 41 at 110 - 11. That case and the line which followed it (McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1; Stevens v Head (supra)) were overruled by the High Court in John Pfeiffer although that case, involving a tort within Australia, obliged the High Court to state that its decision was confined to torts committed within Australia. Whether the Breavington rules still apply to international torts remains to be seen. Presently however the law is as stated in Breavington. That case determined that a plaintiff may sue in the forum to enforce a liability in respect of a tort occurring outside the forum if:
1.the claim arose 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 a 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.
Provided a civil liability of the kind described in pars 1 and 2 above exists under the law of the place of the wrong, the Court will determine the extent of that liability according to the law of the forum: Breavington (supra) Nalpantidis v Stark (1995) 65 SASR 454; Rahim v Crawther (1996) 17 WAR 559.
In New South Wales the Court of Appeal has found expressly that these rules still apply to international torts: Zhang v Regie Nationale des Usines Renault SA [2000] NSWCA 188. However, special leave to appeal has been granted by the High Court: Regie Nationale des Usines Renault SA v Fuzu Zhang (2001) 1 Leg Rep SL 1.
The first limb of the choice of law rules enable the plaintiff to sue in Western Australia for damages for negligence occurring outside Australia. It is the second limb of the choice of law rules which causes me some disquiet. It is common ground between the parties that the barge on which the plaintiff was working at the time of his accident was in Indonesian waters. Dependant upon the precise circumstances in which the plaintiff was injured, a determination will have to be made as to whether the defendant was in breach of one or either or both of the duties of care of an employer to provide an employee with a safe place of work and a safe system of work. Clearly if it is the former then the place of work was within Indonesia. If the latter or a combination of the former and the latter, the system of work may have been devised in Singapore or Indonesia or indeed, subject to the evidence, somewhere else entirely. Without evidence which addresses the issues in the second limb of the choice of law rules I am quite unable to decide the matter.

Choice of law rules – tort – quantum (The fourth issue)

Regardless of how the choice of law rules operate to select the correct law to apply to the claim in tort in this case, it seems reasonably clear that the assessment of damages for negligence for a tort occurring outside of Australia is a matter of procedure to be governed by the laws of the forum, in this case the laws of Western Australia. See the discussion in John Pfeiffer, Stevens v Head (supra) and Rahim v Crawther (supra) at 572 – 582.

The fifth issue

Here the question for determination is: Does the plaintiff’s claim arise out of circumstances of such a character that, if they had occurred in Western Australia, a cause of action would have arisen entitling the plaintiff to enforce against the defendants a civil liability of the kind which the plaintiff is claiming to enforce? This is a question which cannot possibly be answered without there being a full trial with evidence led in the usual way. On the state of the pleadings as they are, only a trial will establish the nature and extent of the duty of care and whether or not it was breached. Assuming however for the moment that the plaintiff establishes that the defendant was under a duty of care to provide him with a both a safe place of work and a safe system of work and that in breach of those duties of care he sustained damage then, in that event a cause of action would have arisen which would be enforceable in Western Australia if those circumstances had occurred here.

The sixth issue - Application of the Workers' Compensation and Rehabilitation Act (WA) 1981

The question here asked is: Does any part (and, if so, which part or parts,) of Division 2 of Part IV of the Workers' Compensation & Rehabilitation Act (WA) 1981 apply to the plaintiff’s claim?
This division was inserted into the Workers’ Compensation and Rehabilitation Act 1981 by Act No. 48 of 1993. It is headed “Constraints on awards of common law damages”. It was in force at the time the plaintiff’s claim is said to have arisen. The question has to be answered in the context of the plaintiff’s separate claims in contract and in tort. With regard to the plaintiff’s claim in contract I have already found that the proper law of the contract and the proper law for the assessment of damages is the law of the Republic of Singapore. With regard to the plaintiff’s claim in tort I have been unable to determine how the choice of law rules will operate in this particular case by reason of a lack of evidence which addresses the second limb of the rules.
The first question which falls for determination therefore is whether or not the relevant provisions of the Act apply to the plaintiff’s claim in contract. In this regard s 93B provides as follows:
"93B.Application of this Division
(1)This Division applies to the awarding of damages against a worker’s employer independently of this Act in respect of a disability suffered by a worker if –
(a)the disability was caused by the negligence or other tort of the workers’ employer; and
(b)compensation has been paid or is payable in respect of the disability under this Act, or would have been paid or be payable but for section 22.
(2)This Division applies even if the damages resulting from the negligence or other tort of the worker's employer are sought to be recovered in an action for breach of contract or other action."
The question then becomes whether or not the Act has any extra‑territorial reach such that it is superimposed upon and must be given effect in respect of a claim for damages for breach of a contract which claim is to be determined according to the laws of the Republic of Singapore. Section 15 of the Act purports to give the Act extra territorial effect such that a claim for compensation "subject to and in accordance with this Act" (s 15(1)) may be brought against an employer "domiciled or ordinarily resident in the State or who has a place of business in the State or was present in the State at the time of employing the worker." (Section 15(4)).
Relevantly, I have already found that the contract pursuant to which the plaintiff had been employed by the defendant at the time he claims his cause of action accrued, was a contract entered into in Singapore, the proper law of which is the law of the Republic of Singapore. At the time of the defendant employing the plaintiff pursuant to that contract the defendant was not present in the State within the meaning of that expression in s 15(4) of the Act.
Additionally, in my opinion, for the sake of completeness, the assessment of damages for breach of a contract the object of which in Australia at least is to put a plaintiff in as near a position as money can do it as he would have been in had the contract been performed, is in my opinion a matter of substance not procedure, unlike the position as it appears to be in respect of claims in tort.
Accordingly, the answer to part of the question is that no part of Division 2 of Part IV of the Act applies to the plaintiff's claim in contract.
With regard to the plaintiff's claim in tort, the opposite would appear to me to be the case. Assuming that the plaintiff succeeds in establishing the defendant's liability in negligence, damages will be assessed according to the law of the forum because the plaintiff cannot obtain more by way of damages than the laws of the State of Western Australia would allow for the circumstances giving rise to his claim if it occurred here: Nalpantidis v Stark (supra) at 457, 459 and Rahim v Crawther (supra) at 565. See also Zhang. Additionally, where the laws of the forum serve to limit a right of recovery, this can be seen as procedural in nature because it bars the remedy and not the right. In the case of the relevant provisions of the Act here under consideration, these serve to limit the extent of the remedy. They are not to be seen as limiting the right, or the extent of the right, and again are properly characterised as being procedural rather than substantive such that the principle in Stevens v Head previously referred to, applies, namely that for extra territorial claims in tort, laws of the forum limiting the remedy are to be seen as being procedural not substantive and hence to be applied in the forum as if the wrong being redressed occurred within the forum.
Hence the remaining part of the answer to the question is that insofar as the plaintiff succeeds in establishing a claim in tort, the provisions of Division 2 of Part IV of the Act will apply.