Pfeiffer Pty Ltd v Rogerson

[1999] HCATrans 436

IN THE HIGH COURT OF AUSTRALIA

Registry  No C14 of 1998

B e t w e e n -

JOHN PFEIFFER PTY LIMITED

Applicant

and

DAVID ROGERSON

Respondent

Application for special leave to appeal

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 1 DECEMBER 1999, AT 10.17 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please your Honours, I appear with my learned friend, DR A.S. BELL, for the applicant.  (instructed by Hickson Wisewoulds)

MR T.F. BATHURST, QC:   May it please the Court, I appear with my learned friends, MR F.M.G. PARKER and MR D.J.C. MOSSOP for the respondent.  (instructed by Gary Robb & Associates)

MR D.M.J. BENNETT, QC, Solicitor‑General for the Commonwealth:  May it please the Court, I appear with my learned friends, DR M.A. PERRY and MR. G.A. HILL, intervening on behalf of the Attorney‑General for the Commonwealth.  (instructed by the Australian Government Solicitor)

MR W.C.R. BALE, QC, Solicitor-General for the State of Tasmania:   I appear with my learned friend, MS S.K. LIGHTON, intervening on behalf of the Attorney-General for the State of Tasmania.  (instructed by the Crown Solicitor for Tasmania)

MR T.I. PAULING, QC, Solicitor-General for the Northern Territory.  If the Court pleases, I appear, intervening on behalf of the Attorney‑General for the Northern Territory.  (instructed by the Solicitor for the Northern Territory)

MR D. GRAHAM, QC, Solicitor General for the State of Victoria:  If the Court pleases, I appear with my learned friend, MR S.G.E. McLEISH, intervening on behalf of the Attorney-General for the State of Victoria.  (instructed by the Victorian Government Solicitor)

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia:   May it please the Court, I appear with my learned friend, MR R.M. MITCHELL, intervening on behalf of the Attorney-General for the State of Western Australia.  (instructed by the Crown Solicitor for Western Australia)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia:   May it please the Court, I appear with my learned friend, MR M.D. WALTER, intervening on behalf of the Attorney-General for the State of South Australia.  (instructed by the Crown Solicitor for South Australia)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales:   May it please the Court, I appear with my learned friend, MS N.E. ABADEE, intervening on behalf of the Attorney-General for the

State of New South Wales.  (instructed by the Crown Solicitor for New South Wales)

MR P.M. DONOHOE, QC:   May it please the Court, I appear with my learned friend, MR P.A. WALKER, intervening on behalf of the Attorney‑General for the Australian Capital Territory.  (instructed by the ACT Government Solicitor)

GLEESON CJ:  Yes, Mr Walker.

MR WALKER:   Your Honours, this is an argument about the confluence of the Constitution, a State statute and the common law. It is an argument where the start and finish, in our submission, is the effect of the Constitution and of the fact that one country was made by the Constitution has upon what is called the common law choice of law rules for tort and it is a case about the effect, depending upon the content of those rules, of the existence of the statute, which in this case would make the difference which your Honours have read about of some $30,000 by reason of the New South Wales regime, to render unavailable what the common law would provide under the common law’s substantive doctrine of compensatory damages. So that there are three of the four sources of law in Australia in question in this argument.

The fourth source of law, which is not in question, is, of course, Commonwealth legislation and the significance, therefore, is that this is not a case in which section 109 plays any part, although it may be a case where what some commentators have playfully called the missing section 109A may play a part. In other words, what we will submit is the speaking silence in the Constitution on the question of clashes between State and State legislation and State and Territory legislation. There is no relevant Territory legislation, though we will be coming back to that later on. The starting point, accordingly, in our submission, is the question of the choice of law rule at common law in a country where the supreme law is the Constitution.

GUMMOW J:   Well, is that right?  Is not the starting point to identify the nature of the jurisdiction that was being exercised by the Supreme Court in the Australian Capital Territory and was that not federal jurisdiction and does that not then engage section 79 and 80 of the Judiciary Act and do you not then therefore get to the common law through section 80?  After all, this proceeding was brought, as the record makes it as plain as a pikestaff, to challenge Stevens v Head and therefore there was a question that immediately arose concerning the interpretation of the Constitution within the meaning of section 76(i).

MR WALKER:   That is plain as a pikestaff, as your Honour says, yes.  The common law, in our submission, whether it is invoked via section 80 or whether it is applied domestically, as it were, within the Territory ‑ ‑ ‑

GUMMOW J:   I mention that because that makes this case different from McKain.

MR WALKER:   Yes, there are other respects in which it is different from McKain, but, in our submission, the difference that your Honour has identified, with respect, is not a difference which will, in our submission, affect any of the fundamental matters of how the common law is shaped.

GUMMOW J:   Well it may help you, because section 80 refers to, “the common law in Australia as modified by the Constitution”.

MR WALKER:   Yes, but we do not need section 80 for that; that is, section 80 uses that reference in place of the common law of England in the original version, but we do not need that reference in the statute for the proposition that the common law in Australia is the common law in a country where the supreme law is the Constitution and whereas this Court made clear in Lange, it is imperative that the common law conform to the Constitution.

GUMMOW J:   Well, assume there was no section 80 enacted and the action had been brought in this Court, as it could be.

MR WALKER:   Yes. My argument would still be that the common law in Australia first, is one body of doctrine and second, that as a body of doctrine, being one of the four available sources of law in this country, like the other three, that is, like all statutes in the country, it is subject to the Constitution, without any qualification to that proposition of any kind. So that, when I said that this is a case about the confluence of those three sources of law in this case, it is a flowing together which requires that at no time ‑ ‑ ‑

GUMMOW J:   All I am putting to you is it is a case about the construction of section 80 of the Judiciary Act.

MR WALKER:   Well, your Honour, in construing section 80 of the Judiciary Act one necessarily asks what is the common law in Australia as affected by the Constitution, and it is that topic which, in our submission, is the subject of this argument.

So far as concerns the question which has been raised in a number of places, including out of courts, concerning section 118, our position is as follows: section 118, because it is in the Constitution, must be considered for the constitutional supremacy which will drive, in our submission, the outcome as to the inquiry for the content of the choice of law rule at common law. But our argument proceeds on the basis that if there were no provision section 118 by reason of (1) what the Constitution does in terms of creating the Commonwealth of Australia, and (2) certain other provisions to which we will come, the same result would follow as we say is clinched by section 118. In that sense and in that sense only, section 118 is not essential to that part of our argument which calls in aid the Constitution but, with respect, because section 118 is there, there is no real point in examining whether or not it would have made the difference to the outcome.

It follows from what we have put to your Honours about the sources of law and the supremacy of the Constitution that unless there is something in section 118 which renders it, as to its content, a prescription in specific terms of a choice of law rule, in this case for tort, then like any constitutional provision in any of its comparisons with what would otherwise be the common law, it is simply one of the provisions to which the common law must conform; and the primary way we submit in which, as to the common law choice of law rules for tort, section 118 provides a standard to which those rules must conform is by way of a prohibition. The prohibition is what we will seek to develop from the antecedent case law as being what some have called the notion of refusing to enforce a foreign odious statute, what might be called the public policy of the forum as a trumping device in relation to the foreign law which would otherwise be applied, or perhaps, as we have put it in our written outline, a form of chauvinism more appropriate to imperial and mercantile England of last century than Australia at the end of this century. Certainly, we submit ‑ ‑ ‑

KIRBY J:   What does “chauvinism” mean?

MR WALKER:   It means ‑ ‑ ‑

KIRBY J:   Why are we castigating anyone?

MR WALKER:   It means an uncritical preference originally by Monsieur Chauvin for revolutionary France, notwithstanding all evidence to the contrary of the need to criticise, in that case, a country or national attachment.

KIRBY J:   You say Phillips v Eyre is based on such an attitude?  I would have thought it had a different foundation.

MR WALKER:   There are matters in Phillips v Eyre to which we will come soon which, in our submission, are explicitly rooted in a preference for what we would call English public policy, or the British way, over the possibility - possibly only hypothetical; sometimes actual – that other countries will not only do things differently but do things so much worse that they must not be given effect to in the forum.  It is that ‑ ‑ ‑

KIRBY J:   Back in the 19th century most countries did do things worse.

MR WALKER:   It is integral to the notion of public policy that judgments are formed daily and in ways that are critical for whole populations as to what is better and what is worse.  I am not suggesting that public policy is a value‑free zone.  It is of course a zone where values govern and are the whole purpose of public policy.  What we are submitting is that section 118 for the law districts, which are the States and Territories of this country, abolishes the possibility of denigratory judgments as to the public policy explicit in another jurisdiction’s statute, for example.

KIRBY J: Did it do that in 1900 or was it then infected by the same chauvinism and is it something which we now, reading the Constitution with today’s eyes, see with a different perspective?

MR WALKER:   No, it did it from the first instant of the Commonwealth, your Honour.

KIRBY J:   So, though originally made by the United Kingdom Parliament, it was unaffected by the chauvinism that was infecting them in other respects?

MR WALKER:   I may be misunderstanding how broadly your Honour wishes me to respond to the questions of public policy involved in a feeling that one’s country is superior in the way it orders things than another country.

GUMMOW J:   The other country in Phillips v Eyre was the colony of Jamaica, actually.

MR WALKER:   Quite, to which we will come back as an important matter when considering what is to be gathered as a matter of common law technique from Phillips v Eyre. In our submission, for reasons to which we are going to be turning almost immediately, properly understood, and before one gets to the particular respects in which the Constitution nudges the common law at places towards a certain outcome in relation to choice of law for tort and in other places sets up prohibitions against the choices which might be made, in our submission, at the end of the day what is to be gathered from the common law 19th and 20th century, combined with those constitutional considerations, will be, and not coincidentally, similar to the territoriality principle which underlies one of the major planks of Justice La Forest’s reasoning in Tolofson to which your Honours have been referred in the Supreme Court of Canada.  The result in the jargon is that, in our submission, as it stands on the facts of this case, including the legislative facts of this case, the common law choice of law rule for tort which ought to have been applied was the lex loci delicti.

GAUDRON J:   For what?  For everything?

MR WALKER:   My argument will be, your Honour, precisely as your Honour has put it, for everything, for reasons which we will develop and explain concerning the so‑called distinction between substance and procedure.

GAUDRON J:   And is it clear that it was not the lex loci delicti that was not applied here, other than in relation to the calculation of damages?

MR WALKER:   It is clear that in relation to the outcome, the lex loci delicti was not applied as it ought to have been, that is for everything.

GAUDRON J:   To determine the liability, you mean.

MR WALKER:   Yes, and that word “everything” requires recognition of something that we should address at the outset. It follows, we hope, from the way we have opened it to your Honours that choice of law rules are not uniquely prescribed or stipulated in the text of section 118 or any other part of the Constitution.

GAUDRON J:   I wonder if the expression “choice of law” is not itself a misnomer, in the context of the Australian Federation?

MR WALKER:   Yes, your Honour.  We use it because it is time honoured but, with great respect, it is a phrase coupled with the other phrase “jurisdictional rule” which, perhaps, leads to more trouble than it was worth but, in our submission, it does have this essential usefulness in place, for example, of the expression “conflicts”, that there will be only one answer for any court as to the law which governs - that is for one court, there will be only one answer to the question what law governs the claim of right and obligation before me.  That involves a choice in the sense that, not of a discretion, but that there are available arguments, well rehearsed over the centuries, as to what they might be.

For present purposes, it is clear from the books, that is from the authorities, that “choice of law” is a phrase which, however difficult it may be taken literally, is nonetheless usefully used as a label to describe the means by which a court ascertains, according to pre‑existing rules, that regime which is, in Australia, an amalgam of the Constitution, Commonwealth legislation, State legislation or Territory legislation and the common law and which of the regimes available, by reference to the different possibilities which may emerge when States and Territories legislate within their competency as to the outcome of that argument about rights and obligations.

The different possibilities emerge precisely because there is, we submit, an essentially territorial nexus of legislative competence for States and Territories, essentially, if not exactly, and we will be coming back to that proposition.  It follows also from what we have said in opening that the choice of law rules, though in this case falling to be considered as a matter of what is the common law in Australia, the choice of law rules may, of course, be altered by the Parliaments within their sovereignty so that the New South Wales Parliament could codify and in so doing amend, perhaps radically, the common law choice of law rules.

GAUDRON J:   What do you say the ban is?  I thought you said earlier that there was at least a ban in section 118.

MR WALKER:   I was just coming to that with the word “but”, your Honour. But, like any statute it must be judged against the commands and prohibitions of the Constitution. There is no such statute in play in this case and hypothetical examples are, on the one hand, easy to construct, on the other hand, hard to make useful, so as to compel an outcome in this case. It remains to be said in principle that there is nothing remarkable, indeed it is axiomatic, that any statute of any kind must match the requirements of the supreme law of the Constitution and a choice of law rule in particular will no doubt fall to be gauged against the requirements, for example but not exclusively, of sections 106, 117 and 118 of the Constitution.

When the time comes of an ambitious codification or, more properly, considerable amendment of what are presently the common law choice of law rules by a Parliament, if that time every comes, that will be the occasion when the limits of State or territorial legislative competence to alter the content to an infinite degree of those choice of law rules will fall to be decided. For our position today, what matters and what we assert is that it is self evident there are limits, that is, all statutes must conform to the Constitution just as the common law does, and in our submission it is clear that there are species of hypothetical or perhaps one might call bizarre examples one could dream up of State or Territory choice of law legislation which would rapidly introduce the possibility of having breached section 118.

GUMMOW J:   The Territories will be in a different position, will they not?

MR WALKER:   Yes, your Honour, they will.  Section 118 is addressed, we submit, to the Territories as it is addressed to the States but does not attach to the laws of the Territories.  But for our purposes it is the former comprehensive effect of section 118 throughout the Commonwealth which matters and which means that it does not matter in this case that it was a Territory court as opposed to a State court which was seized with the choice of law problem.

GAUDRON J:   Now, when you talk about choice of law rule or rules in this context, are you also talking about justiciability or only that part of the law that determines the applicable law, because it appears to me that there may well be different considerations so far as section 118 is concerned at least as to justiciability rules and governing law rules?

MR WALKER:   Yes.  Yes and yes.

GAUDRON J:   Yes.

MR WALKER:   May I make it clear.  Our argument, if not exclusively devoted to the question of what we call the regime which decides the content of the outcome of the dispute as to rights and obligations, what I might call the applicable law for the dispute, our argument is basically devoted to that.  One cannot argue that, in our submission, given the evolution of case law, particularly in this Court, but also in the English precedents upon which that is based, without visiting to some considerable extent the notion that your Honour has raised by the use of the word “justiciability” and which both authorities and commentators have described by use of the expression “a jurisdictional rule”.

The metaphor of “threshold” will also enter to describe the same aspect of private international law to which we will come, but our argument is not ultimately about jurisdiction or justiciability in the sense which we apprehend your Honour Justice Gaudron has raised.  It is, for the reasons we are about to come to, essential by reason of the common law history.

GUMMOW J:   Can you give an example of what you treat as comprehended within the notion of non‑justiciability?  I was wondering whether Spycatcher is an example.

MR WALKER:   Non‑justiciability is, of course, like all the words in this area of multiple import, restricting it to what we would call the jurisdictional question, that is the capacity or duty of the court to undertake an adjudication, as opposed to the remoteness of the subject‑matter from something fit to be decided by judges according to legal method, such as political questions, and concentrating only on the jurisdictional matter, then, in our submission – and we confess this is uninstructed by great consideration – the obvious example is a claim to jurisdiction by a court over people who have had no physical connection at any of the relevant times, be they ‑ ‑ ‑

HAYNE J:   So “long arm jurisdiction” is it called?

MR WALKER:   Laurie v Carroll kind of considerations, yes.

GAUDRON J:   But why does it not also include that aspect of Phillips v Eyre which is sometimes referred to as “the double actionability”?

MR WALKER:   It does.

GAUDRON J:   You know, “a suit is maintainable in the jurisdiction if”, et cetera.

MR WALKER:   It does.  Our argument is that Phillips v Eyre has been forced, we say wrongly, with great respect, to change its jurisprudential character from a rule ‑ ‑ ‑

HAYNE J:   From what to what?

MR WALKER:   From a rule which is at least partly, if not predominantly, jurisdictional to a rule which is only choice of law.  Now, the two merge at a point where the choice of law rule is expressed as the lex fori.  They merge at that point because for a court to enter upon a dispute which it is going to decide according to the law of its own Territory is both jurisdictional and choice of law, but, in our submission, the way in which Phillips v Eyre, whether one calls it a rule or not does matter, but makes the point.

The way in which that has been transformed in the Australian authorities forces one to scrutinise where it came from and the basis upon which it was erected and the purpose for which it was erected and, in our submission, when that is done, two things follow.  First, the common law is not as clear as might have been thought as to what ought to have been or ought to be, depending upon this Court’s approach to its own authorities, the common law outcome.

Second, it raises matters, particularly the double-actionability on the first limb of the double-actionability requirement; it raises aspects which run, we say, right up against a prohibition in section 118, and that is the prohibition in section 118 against the forum court deciding to denigrate the positive enactment of the locus delicti as a ground for refusing to enforce it by adjudicating rights and obligations in accordance with it.

HAYNE J:   Does it follow from that last proposition that a State could not pass a law saying that in all actions in the Supreme Court of this State, having interstate or intra-national connections, the State court will apply the law of the forum regardless of the connection?

MR WALKER:   We do not think that last proposition necessarily has in train that consequence, your Honour, but it is, with great respect, the question which requires to be asked about the principles upon which we base our argument, but the answer to that question really should await a statute which comes along in that form. It is possible, though we stress we cannot undertake on the facts of this case and the issues of this case to argue it, it is possible that such a law may, depending on what the court finds or affirms to be the common law, run into difficulties posed by a combination of sections 117 and 118, depending upon the parties before the court, but that is so speculative and hypothetical that it is not possible to answer your Honour squarely as to whether the consequence your Honour raises flows necessarily and always or would simply be a possibility.

HAYNE J:   But section 118 would prohibit a law that gave effect to Government of India v Taylor  in Australia saying, the courts of this State shall not enforce the revenue, laws, judgments, et cetera, of another State, and the question is, does it go beyond that kind of operation?

MR WALKER:   There are, of course, a number of other prohibitions – I do not suggest that they are unimportant, but they could be called lower‑order prohibitions – which have to do, for example, with the impossibility under section 118 of a State enacting legislation, which would render either impossible or near impossible judicial recognition of the statutes of another State.  On its face section 118 of course imports, and has always been considered perhaps to have as its primary function, contrary to our general argument, that kind ‑ ‑ ‑

HAYNE J:   The evidentiary proof, et cetera.

MR WALKER:   Yes.

HAYNE J:   Yes.

MR WALKER:   Which goes back a century earlier, obviously, to the American precedent for it.

GLEESON CJ:   Mr Walker, a related question may be this.  The statutory provision that operates to achieve the result that you say should apply in present case is section 151F of the Workers Compensation Act of New South Wales a court:

may not award damages to a person contrary to this Division.

MR WALKER:   Yes, your Honour.

GLEESON CJ:   What do you take the word “court” to mean in that section?

MR WALKER:   In our submission, and notwithstanding at first sight it is against our argument, the Interpretation Act 1987 and ordinary canons of interpretation, if they continue to apply, requires “court” to be read as a New South Wales court.

GLEESON CJ:   How do you get from that to the consequence for which you contend?

MR WALKER:   I get to the consequence for which I contend by arguing that the choice of law rule at common law, subject to the Constitution, which is applied as a matter of the law binding the ACT court, requires that the rights and obligations of the parties be determined as if they were being determined according to the New South Wales law. The “as if” is critical to our argument. New South Wales law is not being applied of its own force.

GUMMOW J:   No, but at some stage, a point could be reached where there would be an argument as to whether section 80 did not present a section 109 issue.

MR WALKER:   Yes.  At some point that will arise.  There is also an anterior question always in these cases which, depending upon its answer, means there will not be any problem of a kind called a conflicts problem at all, and ‑ ‑ ‑

GUMMOW J:   Yes, what I mean is if the New South Wales statute purported to require the ACT Supreme Court to act in a particular fashion ‑ ‑ ‑

MR WALKER:   It would fall foul of 109 by reason of a federal statute requiring the ACT to proceed differently.

GUMMOW J:   Yes, or the federal statute which establishes the Territory court and gives it its powers.

MR WALKER:   Yes, rather than assent to the last proposition, your Honour, may we simply submit that that last is a possibility.

GUMMOW J:   Yes.

HAYNE J:   But it drives you back to the important point, does it not, that when a court of State A looks to the common law rules of conflicts and derives an answer on what we have described as choice of law, it is deriving an answer about the content of rules, obligations, rights, et cetera, which the courts of State A enforce, if you like, ultimately, in furtherance of the judicial power of that State and not by application of the law of State B but in furtherance of the judicial power of State A because that is where its common law rules (universal throughout Australia) have taken it.

MR WALKER:   Yes, emphatically so. That is also offered in answer to your Honour the Chief Justice’s question which I wish to elaborate in a moment. It is not accurate, or at least it can be misleading, to talk about the law of New South Wales or the law of the Australian Capital Territory, though as shorthand, and properly understood, it is perfectly convenient. For the reasons your Honour Justice Hayne just pointed out, the law of New South Wales and the law of ACT has a number of matters which are in common and are beyond the competency of their legislatures to affect, but the common law is not beyond the competency of a legislature to affect, subject and subject only to 109 matters in relation to legislatures apart from the Commonwealth, subject to section 51 and other limitations on the subject matter of Commonwealth legislation and finally, of course, the Constitution for all of them.

It is for those reasons, in our submission, that in answer to your Honour the Chief Justice, we are bound to say that it is the common law rule, both in its traditional form as, as it were, enunciated in textbooks talking of a rule in Phillips v Eyre plus, in our submission, as it ought to be understood based on the authorities construed in deference to the Constitution, that the law which is applied is, of course, the law of the forum because the choice of law rule and application is the law of the forum and the statutes of the locus delicti which, if that is the choice, are to be applied by analogy, as it were, which involves mutatis mutandis where that is necessary.

Thus, for example, a law of the locus delicti may have, on utterly orthodox grounds and not only by reason of provisions such as the Interpretation Act (1987) in New South Wales, an essentially or, perhaps exclusively, territorial reach.  The fact that it speaks about what may be done, as in the provision in question in this case as your Honour the Chief Justice has pointed out, by a court which is territorially located in the legislating Territory and is, of course, the court which is applying the choice of law rule is not one of those courts is not something which defeats the choice of the law to be applied but merely recognises that there is a decision being made as if the transaction or relationship were governed by New South Wales law.

KIRBY J:   What is the meaning in section 118 where it seems to draw a distinction between “the laws” and “the public Acts” of every State?  What is the distinction that is being drawn in that?  Is it a reference to, say, the imperial laws that continue in force or is that a distinction between the common law, inferentially common laws and the public Acts?

MR WALKER:   I think the short answer, your Honour, is this, that one rejects ‑ ‑ ‑

KIRBY J:   Is this the subject of any authority, or not?

MR WALKER:   Not, I think, to justify the answer I am about to give your Honour except for all the authorities that may be cited for the first of my propositions which is this:  the common law of Australia is one body of law by reason, amongst other things, but particularly of this Court’s position at the apex of a judicature, Chapter III.

KIRBY J:   I know that doctrine and I participated in saying it myself but my eyes have just fallen upon that provision of section 118 which, on one view, may suggest, I think, differently.

MR WALKER:   No.  “Full faith and credit” is an expression which is wholly unsuitable to, we would submit, antithetical to the States and Territories, that is the Commonwealth, throughout which 118 commands full faith and credit, their obedience to their own common law.  One does not give full faith and credit to one’s own law.  One obeys it because it is the law.  Full faith and credit is something given to a neighbour’s or sister’s or brother’s State system of law.  It is not something one gives to one’s own law.

KIRBY J:   Yes, but the question is whether section 118 has been written on a different hypothesis, an American hypothesis that the common law is different from State to State.

MR WALKER:   I cannot answer that either from travaux preparatoires or authority, your Honour.  I will have to take that on notice.

KIRBY J:   At some stage you will have to take us to the American origins of the predecessor to 118.

McHUGH J:   “Laws” is not in the United States Constitution and did not Sir Anthony Mason in Breavington express the view that “laws” was inserted in case the words “public acts” did not cover laws that were in force.

MR WALKER:   Yes. That was, with respect to Justice Kirby, exactly the point in all the colonies and it was going to continue, not least by reason of the Constitution, section 107, because the laws, quite apart from the common law of those Territories, notoriously included laws other than those enacted by the local legislature and imperial Acts are one obvious source. Whether that is a complete answer to your Honour, historically, or to pick up Justice McHugh’s observation, whether it is the complete answer to the verbal distinction between the United States precedent or analogue and a section 118, I frankly do not know and will have to research for your Honours.

KIRBY J:   Whilst we are ditching chauvinism, may it be appropriate on the brink of a new century that we dispatch lex loci and the Latin expressions.  Very few Australians now learn that and speaking for myself, I think it may be appropriate that we use the law of the tort.

MR WALKER:   Your Honour, there is always the question, I suppose, as a species is approaching extinction as to whether you hurry it or seek to slow it down in that progress if that is progress but ‑ ‑ ‑

KIRBY J:   Justice Meagher would be proud of you.

HAYNE J:   The question of the prominence that law schools give to the teaching of conflict of laws in a Federal State which may be an altogether separate subject.

MR WALKER:   Yes, we use the expression ‑ ‑ ‑

GUMMOW J:   And an alarming one, I think.

MR WALKER:   We use the expression because it has been used in the authorities ‑ ‑ ‑

KIRBY J:   I am not blaming you, I am just ‑ ‑ ‑

MR WALKER:   If there is a terse English phrase ‑ ‑ ‑

KIRBY J:   There will be a lot of people who will read our decisions who will not understand the English and who will be curious at the Latin.

MR WALKER:   Your Honour, we would be content with some translation such as “law of the place of the wrong” except the suggestion, if that phrase is used anew, there may be a difference between the meaning of the wrong and delicti is one which is not worth introducing simply in order to remove a dead language.

GUMMOW J:   They took the phrase “in loco parentis” out of the Family Law Act at one stage, over Sir Maurice Byers opposition, and put in “member of the household”.  That gave rise to at least two cases in this Court which I was involved.

GLEESON CJ:   The usual consideration that is thought to commend the use of Latin is that it is a universal language and, importantly, that it is a dead language, and that its meaning does not change from generation to generation.

MR WALKER:   It has the advantage in this area as well that it may well be a continued source of link, not merely superficial link, but real link with the writings of the civilians and the writings of other centuries on the point.

KIRBY J:   It may be a dead language, and so on, but a lot of the people will not understand it.  Citizens will not understand it.  However, different justices may take different views on this.

MR WALKER:   May I then turn to why, in our submission, as a matter of common law, the notion of double actionability, the so-called rule in Phillips v Eyre, ought to be scrutinised, in our submission, by this Court to the same end as this Court, for example, scrutinised Bilbie v Lumley and Kelly v Solari, for example, in David Securities, to that same end and employing, with respect, exactly the same technique in its search for what is the common law in Australia.

GUMMOW J:   It is a veil of tears.

MR WALKER:   I will stay very briefly in that case, your Honour, and I should say no more briefly than I was going to stay in any event.  In Koop v Bebb 84 CLR 629 the passage at page 644, which concludes what used at least to be the well‑known passage starting at page 642, expressed what was at the time the use being made of the double actionability rule in what was then called the conflicts area. We would pick it up where Sir Owen and the other Justices have completed their citation from Mr Justice Holmes from which they are departing:

English law as the lex fori –

we stress that –

enforces an obligation of its own creation in respect of an act done in another country which would be a tort if done in England –

hence our use of the expression in answer to the Chief Justice, “as if” –

but –

and then a very important expression in relation to the questions asked by Justice Gaudron –

refrains from doing so unless the act has a particular character according to the lex loci actus.

Which, I am sorry, Justice Kirby, will be interchangeable with the lex loci delicti.

KIRBY J:   I am not seeking to control Sir Owen Dixon; I am simply speaking of our age.

MR WALKER:   It may actually defeat one virtue of the Latin, that it is always used in a standard form.

KIRBY J:   They learnt Latin back then in 1951.  I learnt it myself.

MR WALKER:   The “actus”, your Honour, perhaps may be a more precise version of the flavour that we are seeking to achieve.  It would also have to be unfortunately omitus.  So far as concerns what the Judges were saying in that passage for present purposes, we wish to stress this.  It is expressed in terms of its function as a rule which says yes or no to the exercise of jurisdiction.  That is, to entering upon the adjudicative function – the expression “refrains from doing so unless”.

HAYNE J:   Is that right?

MR WALKER:   Yes, your Honour.

HAYNE J:   Personal jurisdiction might be asserted and it would simply be judgment for the defendant.

MR WALKER:   I am sorry, it refrains from entering upon, adjudicating, on the merits on that dispute.  There may be judgment for the defendant with an estoppel or res judicata.

HAYNE J:   No, it adjudicates on the merits by saying, “No remedy will be given by this Court in these circumstances”.

MR WALKER:   Yes.  It is in that sense that justiciability and jurisdiction are, though traditional, unhappy words to describe this effect of the rule as it was then understood.  The critical matter for present purposes is by reason of the function which your Honour Justice Hayne has just corrected me on, it was the lex fori which was being enforced so that it permitted writers to say - and, with respect, correctly - that the law being applied was lex fori, with a very important parenthesis, if, and only to the extent that, it was the same as – and I am now generalising – lex loci delicti.  That is how that rule was seen at that stage and it is for those reasons, in our submission, that the perhaps unfortunate label of jurisdiction or justiciability was given to its operation.  It was of course, as we put earlier, an example of how such rules merge with true choice of law rules when the lex fori is the law in question.

GLEESON CJ:   Are you inviting us to conclude that the law that applies intra-nationally, in this respect, should be different from the law that applies internationally?

MR WALKER:   We are inviting the Court to hold that the law which applies intra-nationally is brought about by a different set of requirements than those which will produce the rule as to international conflicts; whether that will produce a difference in content is a matter of (a) principle and (b) authority, but, in our submission, there are intra-national matters and the Constitution is the first of them and section 118 and section 106 are obvious ones as well, particularly, which are peculiarly applicable to the intra‑national question and which will not have a role either at all or in the same way as to the international question.

Your Honours asked me, do we submit that there will be a difference? There may or may not be a difference, but there is a difference, method and reasoning by which this Court should reach the result and the essential reason for that is, quite simply, that the Constitution made one country and did not amalgamate, uneasily, a number of countries, whereas the law as between nations proceeds upon, recognises and is designed to achieve the possibility of nations continuing to exist independent and sovereign from each other under some form of rule of law. None of that imperative implies where a Constitution has made one country.

GAUDRON J:   And it may be, Mr Walker, that section 117 also has some bearing on intra-national disputes.

MR WALKER:   We have mentioned that several times, I think for that reason.

GAUDRON J:   One can envisage situations where the rights of a citizen, say the citizen resident in one State might be different for the purposes of section 117 if they seek to enforce them in the courts of another State or something, so that there may be disability or discrimination.

MR WALKER:   Yes.  May I return to your Honour the Chief Justice’s question:  public policy, of what I will call the forum, be that a State, Territory or something which I will call Australia in relation to federal courts, is likely or does have a role in international conflicts, which it cannot have in intra-national conflicts.

GLEESON CJ:   Well, it might be that it is not necessary for your argument to focus so much on what you have called the chauvinism of a particular rule; it may be sufficient to acknowledge that considerations of comity may be relevant in international dealings that are not relevant, indeed that are positively excluded intra-nationally.

MR WALKER:   Yes. That is, with great respect, another way that we would embrace that the language of comity, the idea of comity, is at odds with, among other provisions of the Constitution, sections 106 and 118.

KIRBY J:   And that is reliant not just on 118, that is reliant on perhaps not even particular sections but the very notion of calling into existence a new nation which is a federation.

MR WALKER:   We would refer as well to covering clauses 4 and 5, covering clause 4, making the country; covering clause 5, subjecting everyone to the laws, and we would call those in aid but, with great respect, we would accept the formulation as your Honour Justice Kirby has put it. It is the fact of what the Constitution did by making a country as well as the specific provisions to which we refer which mean that to talk of comity is, as it were, a constitutional offence.

KIRBY J:   It is not the way the United States judges have approached the matter though.

MR WALKER:   No, but in our submission it is the way in which our structure, particularly our relation to the common law, requires the outcome in this country.  Your Honours, in dissent in Breavington v Godleman 169 CLR 41 Justice Brennan in the well‑known passage at page 110 turns to this categorisation of what the so‑called rule is doing and says at the top of that page:

The two conditions –

that is the double actionability –

are not merely the criteria of the forum’s jurisdiction ‑

and that, of course, is used in the sense that I have sought to argue earlier today –

they state the substantive law which governs a plaintiff’s right to recover a judgment in respect of an extraterritorial wrong.  The two conditions govern both the existence of the forum’s jurisdiction and its exercise ‑

Perhaps that is the merger of which we speak –

They are part of the lex fori.

And then there is the passage which I have already read from Koop v Bebb.  Following the citation from Lord Wilberforce, his Honour proceeded:

The forum must determine its jurisdiction and the law to be applied in exercising its jurisdiction according to the lex fori.  There is no other system of law to which these basic questions can be referred.  The two Phillips v Eyre conditions –

which is the shorthand his Honour was adopting –

are applied as part of the lex fori.  Then, the lex fori being the governing law, the second of the Phillips v Eyre conditions requires reference to the lex loci in order to determine whether that condition is satisfied.

And there is a reference to Anderson.  That famously was taken up and applied in McKain v Miller 174 CLR 1. We do not go to the extended passage. Could we take your Honours for present purposes, first, to pages 38 and 39 where at the foot of page 38 a number of things require observation. First, there is the reference to the fact that what was now preferred to be stated or:

the common law rules for application by Australian courts in cases of Australian torts –

which, it is clear from the beginning of that sentence, refers to what is also being called “íntranational torts” –

in terms to which a majority of this Court assent, we think it right to adopt rules expressed in more categorical terms.

More categorical than what Justice Brennan had called the Phillips v Eyre requirements.  What is being recognised in that passage at the foot of page 38 and the top of page 39 is, first, that what Justice Brennan did in Breavington v Godleman was not to promulgate the law.  It could not be as a matter of the way in which the Bench divided.  Second, what is recognised in that passage is that it is not simply an application by incorporation, as it were, of Phillips v Eyre, that there are matters which are being altered as a matter of common law technique by the majority as what they there held to be the law.

Now, for the reasons that we have expanded upon in writing, in our submission, that is a part of the majority judgment in McKain v Miller which did not result from whatever benefit the Court obtains from argument, and we have drawn attention to the possibility that that is a reason why it ought to be re-examined by this Court.

GUMMOW J:   It also does not address the situation of an action in this Court between residents of two States in respect of a tort.

MR WALKER:   No, it does not.  The occasion did not call for it.

GUMMOW J:   No.

MR WALKER:   If one were promulgating a general rule, then that is one of the matters that would need to be considered.

Your Honours, Stevens v Head, of course, does not add to the way in which the common law was thus, as it were, evolved from the special function on the way to applying lex fori which the Phillips v Eyre double actionability rule had as was perceived in Koop v Bebb to a frank choice of law rule via Breavington v Godleman in dissent enunciated for the first time in McKain v Miller and repeated in Stevens v Head.  That there were difficulties even before any of that happened, in our submission, can be illustrated very briefly.  We have already referred your Honours to Koop v Bebb.  Your Honours will recall that there is a footnote on page 643 of 84 CLR where Justices Dixon and the others refer to the discussion by Justice Cussen, to which we will not be taking you, but to which we refer your Honours in Varawa v Howard Smith [No 2] (1910) VLR.  The passage where Mr Justice Cussen discussed a deal of the common law is at pages 525 to 532.  Now, a lot of that discussion concerns the so-called second limb of Phillips v Eyre, rather than the first limb, and it is, of course, the first limb which is the subject of our attack in relation to its status as part of the common law choice of law rule in this country.

HAYNE J:   You describe it as “part of a common law choice of law rule”.  What do you mean in this context by describing it as “a choice of law rule”? What law is chosen by this double actionability test?

MR WALKER:   May I commence my answer by noting that the supposed difference between matters of substance and matters of procedure complicate considerably a simple answer to your Honour and I would wish simply to note that and then not complicate it, I hope.  That which is chosen by the forum, that is, by the forum court according to the law binding the forum court, lex fori, if one will, is the set of rules, what may be done, what may not be done, what consequences follow from states of affairs described in the law, which will then be applied as the pre-existing law to the facts as they are found according to judicial process so as to result in the content of the judgment declaring or enforcing the respective rights and obligations.

HAYNE J:   But to which law?

MR WALKER:   That is a long‑winded way of saying that it provides that the content of the dictates of law by which one knows from the application of the general to the particular how the parties before the judge are to have their positions adjusted by judgment, by order.  Thus, for example, if New South Wales passes a moratorium statute which affects, according to its terms, being a New South Wales moratorium statute, the way in which a purchase price may be obtained and, therefore, enforced in default of payment for a contract to govern by the law of New South Wales then the Moratorium Act notwithstanding – it speaks to and of New South Wales only and not of Victoria – will provide the content of the vendor’s right to the price when the vendor, invoking the law of Victoria as the forum, finds itself having rights and obligations determined according to the law chosen by the lex fori.

The lex fori chooses the law of the contract and by its own choice of law techniques ascertains that the proper law of the contract is New South Wales. That does not bring in some etiolated version of the common law ignoring the statutes which operate upon common law rights. It includes the New South Wales Moratorium Act and again notwithstanding and, perhaps because, that Moratorium Act in New South Wales applies only to and for New South Wales, in Victoria a Victorian court, obeying its dictates that the law of New South Wales is the law chosen to regulate the rights between contracting parties enforces the Moratorium Act and that is Merwin v Moolpa as your Honours are aware.

HAYNE J:   But, on that example the content of the rules that are applied to adjust the rights and obligations of the parties may be found in the example you just gave in New South Wales law, though it is applied by the Victorian court pursuant to its rules, the Australian rules, of conflict of laws.

MR WALKER:   We need to insist, and it may be we need to concede and recognise, that what is being done when a court is applying the law of another place, that is a place other than the place providing a legislature binding the court, it is applying its own law, answering the dictate of its own legal system.  It is for that reason that one, in considering matters of substance and procedure, ought not hurry, a priori or in the abstract, to categorise, either in principle or by reference to established categories in case law, particular statutes, especially statutes, as substantive or procedural.

First one asks is there a law in the forum which compels the forum court to proceed in a particular way.  We have already hypothesised that there may one day be laws of forums which require the forum court to make a choice of law in a particular way but there are already a multitude of forum statutes which require, for example, process in the Supreme Court of New South Wales by way of delegated law making and rules to be on A4 paper and typed in a particular way, to use the most trivial example, or for service to be accomplished in another way, to use a fundamental example.  They are laws which apply just as the choice of law rules apply as lex fori and they must be obeyed and there is nothing, by definition, about the common law rules of choice of law which can stand for a second against an inconsistent statute.

HAYNE J:   But before we come to the substance procedure problems, if you make an analysis of the kind you made in relation to a contract, against the principles stated in McKain v Miller, to which law does the forum court look for the content of the rules that it will use to adjust the rights and obligations of the parties in a tort case.

MR WALKER:   In a tort case.  The place where the wrong act or omission occurred.  It would be convenient for my answer if I could have confined it to “act”, but I cannot, but, in our submission, the common law has no difficulty with locating omissions, however odd particular examples may be.

HAYNE J:   If that is right, that answer, what is the purpose of the double‑actionability test?  Is it a filter to filter out some kinds of claim from consideration, is it a choice of law test; what is the purpose that you say is fulfilled by the double-actionability test as disclosed in McKain?

MR WALKER:   No good purpose is served by it.  An unconstitutional purpose is served by it of requiring, not merely permitting, but requiring the forum court to pass some judgment about the lex loci delicti.

McHUGH J:   Well, one good purpose that is served by it is that it keeps some cases out of the courts of the forum and, I know you say it can be dealt with on public policy grounds, and you seem to concede in your written submissions that such a rule is necessary to filter those cases, but it can be argued that it is a particular application of public policy.  In this day and age, the question has to be asked, why should, in any event, courts of one forum be used by people whose causes of action arise in another?

MR WALKER:   There is a short answer to that and that is that one should not be forced, in a country which has constitutionalised travel and has constitutionalised non-discriminatory treatment in Commonwealth areas of citizens, one should not require people to be able to sue only in a place which may be very remote from where they are.  So that, when one suffers misfortune on a holiday that has taken you across the continent at real expense ‑ ‑ ‑

McHUGH J:   Yes, but you are talking about car travel, but the law at tort, it goes beyond highway accidents, you know.

MR WALKER:   It does, but unless it can accommodate those matters then, in our submission, in principle, it will not be right.

McHUGH J:   But why should the ACT ‑ ‑ ‑

MR WALKER:   It is not only motor cars, your Honour.

McHUGH J:   - - -for instance, be a forum for New South Wales litigants?  I mean, in the State of New South Wales and the other States are invested with federal jurisdiction in criminal cases to the detriment of other litigants.  That is something that cannot be avoided.  But there is something to be said for this first condition in the sense that it is a filter.

MR WALKER:   Yes, but your Honour is now talking about a docket control filter rather than an odious statute public policy filter.  It is its roots in the latter kind of filter which, in our submission, renders it unconstitutional and not the common law in this country accordingly.

GAUDRON J:   In any event, in a Federation such as ours, it is a very ineffective docket filter.

MR WALKER:   I was going to come to this, that docket ‑ ‑ ‑

GAUDRON J:   As this case shows.

MR WALKER:   Docket control is not something one would expect to find the common law proceeding upon unless one can locate some general principle in the common law that courts ought to be able to deny people who are otherwise subject to its jurisdiction or entitled to invoke its jurisdiction the adjudication which they seek.

McHUGH J:   But you seem to want to constitutionalise this rule.  Why cannot ‑ ‑ ‑

MR WALKER:   No, I do not seek to constitutionalise the rule at all.

McHUGH J:   You seem to want to invoke section 118 to prevent the States and Territories from legislating to protect their courts.

MR WALKER:   No, your Honour. I think I have protested several times, your Honour may think overmuch, that we do not say that legislation is impermissible according to the argument we present. What we say is, like all legislation it will be measured against the yardstick provided by the Constitution which is supreme over it. There is nothing surprising or constitutionalising about that except in a sense that that expression has never been used hitherto, except in the sense that the common law of this country is constitutionalised or all the statutes of this country are constitutionalised.

McHUGH J:   Let me get you down from the abstract to a concrete illustration.  Could the ACT legislate to prevent causes of action arising in New South Wales from being heard in the courts of the ACT?

GAUDRON J:   It may be that that involves questions of section 122 in any event and if it were a State court it might involve section 117.

MR WALKER:   May I add some others which I gratefully adopt.  First, via section 122, one looks at the Court Act and for the definition and stipulation of the jurisdiction of the court, and the first step would be to examine for repugnancy, and if there is any to reconcile it, between provisions which state the jurisdiction of the court which we submit then import a duty to exercise it, so you cannot say to every fourth person, “You are turned away ‑ ‑ ‑

McHUGH J:   Let me give you a simple illustration.  Supposing the ACT legislature passed an ordinance or a piece of legislation which says, “The courts of this Territory shall have jurisdiction to deal with tortious acts or omissions committed in this Territory and not otherwise”.

MR WALKER:   It may be that for the territorial court, which is not a court referred to in terms by Chapter III, there would be no difficulty, because of section 122, in doing that. There is, of course, no difficulty in Federal Courts or in other courts which are being created rather than recognised as the High Court – created by the Constitution, the High Court, or recognised, the Supreme Courts, that maybe there is no difficulty, as with Federal Courts, of limiting their jurisdiction. If it were only a jurisdiction‑limiting provision, it would be no more remarkable than those jurisdiction‑limiting provisions which apply with respect to the Family and Federal Courts. That would not be a position which would throw up the possibility of what your Honour accuses me of seeking to do, namely, constitutionalising a choice of law rule. It would not throw it up at all. You would have gone to a court whose door is not open to you at all.

It may be – and I apologise for not being categorical, so I need to think about it – that 117 would be engaged, as her Honour Justice Gaudron has proposed.  That would depend upon facts which would need to be available.

GAUDRON J:   For example ‑ ‑ ‑

MR WALKER:   It may be - I do not wish to place too much emphasis on that possibility - if it were not a Territory court but it were a State court who did that, depending upon the court in question, there might be Chapter III problems as to whether there are abrogations of the constitutional role of courts, including the Supreme Courts named in the Constitution, if the jurisdiction were ‑ ‑ ‑

GUMMOW J:   There would be inconsistency perhaps with section 39 of the Judiciary Act.

MR WALKER:   Yes, there is that as well.

GUMMOW J:   In so far as diversity jurisdiction is  ‑ ‑ ‑

MR WALKER:   It may be that there would also be Chapter III difficulties if one were to cut a court down, in effect, so that one can see that justice is no longer available in practical terms.  In our submission, those raise very large questions of the kind of legislation which to our knowledge has not been attempted which, while not abolishing rights or obligations, effectively denies means by which they might be enforced.  Questions of that kind, which might involve obviously section 109 inconsistencies with the Judiciary Act but perhaps more importantly Chapter III problems, would need to be considered.

The example your Honour has put to me is really in one sense a very simple example with a very simple answer. Can the Parliament create a court of limited jurisdiction? Yes. Can it change a court’s jurisdiction after it has created it in a way which might be described as limiting, restricting or reducing it? Yes, and for the same reason as it may expand it, subject to whatever other requirements there are in the Constitution which might limit that power. That is of course the overt publicly available way of exerting docket control which one can contemplate.

McHUGH J:   Is there not some inconsistency between your answer to the Chief Justice and what you have just been saying?  In terms of the second limb of the Phillips v Eyre rule, you say notwithstanding it is a direction to the Court, nevertheless it has to be taken into account in this choice of law context but, if you look at it in terms of the first limb, although it is a direction to the Court, it seems to have some different character.

MR WALKER:   Yes.  Direction to the Court can be used in two senses.  All law, including substantive law to be applied by the Court, can be seen in one sense as a direction to the Court as to how certain things must fall out.  Then there is, in the sense that we wish to use it for a slightly later part of our argument, a more specific form of legislation which in terms is directed to a court which is why, in answer to the Chief Justice, particularly the opening words which are of a familiar kind, conferre Stevens v Head, there are statutes which are on their face speaking to a court other than the one which is now, according to the choice of law rule, setting about applying the law of the locus delicti.

GUMMOW J:   Which view is that?

MR BALE:   It is in 1994-95, your Honour.

GUMMOW J:   Yes, but which view do you say his Honour was supporting?

MR BALE:   Supporting the view that the lex fori applied both to substantive and to procedural law.  It is at the paragraph at the top of page 98, your Honour, starting:

The effect of section 5 of the Choice of Law (Limitation Periods) Act is not entirely clear.

Does your Honour have that?

GUMMOW J:   I see.

MR BALE:   And then towards the bottom of that paragraph.

GUMMOW J:   Yes.  But you would say that the Solicitors-General who got together and drafted section 5 of the Choice of Law (Limitation Periods) Act got it right, were proceeding on the right assumption.

MR BALE:   Well, his Honour certainly was of the view that it was wrong and that States had proceeded on a misconception as to the operation of McKain v Miller and Stevens v Head.

GLEESON CJ:   But relating that passage to the circumstances of this case, and the decisions of the courts below against which leave to appeal is sought, all that the courts below have said, as I understand them, is that in order to sue in the Australian Capital Territory Supreme Court for something that happened in Queanbeyan, you have got to show that it is a tort according to the law of New South Wales and a tort according to the law of the Australian Capital Territory.  The reason why the legislation of New South Wales about modified common law damages is relevant is that somebody wants to argue that that has substantive effect, which produces the result that one of the two conditions stated in McKain v Miller is not satisfied, and that argument was rejected on the ground that those two conditions are only about substantive provisions, not about procedural provisions, and this one is procedural.

MR BALE:   Our contention here is, of course, that any law which deals with the quantum of damages and affects the quantum of damages affects the right and it does not just deal with the pursuit of the right but it affects the right itself and is therefore substantive, not merely procedural.

GLEESON CJ:   But what has section 118 to do with any of that?

MR BALE:   Because section 118, we would contend, is saying that all the parts of the law that relate to the tort must be applied.  That is, not only the law that determines liability but that part of the law which determines quantum, and therefore a statute which bears on the quantum which is recoverable is picked up by section 118.

GLEESON CJ:   Is that another way of saying even if that law is properly characterised as procedural, the distinction between substance and procedure is rendered irrelevant by section 118 and the ACT Supreme Court is obliged by section 118 to apply the modification of damages provisions of the New South Wales statute, even if they are only procedural?

MR BALE:   That is not how we would put it, your Honour.  We would put it as saying that a law which bears upon the right compared with the way in which the right might be pursued is part of the substantive law.  The law which deals with pure procedures, that is the manner in which the right might be pursued, is a procedural law and each jurisdiction is at liberty to determine how its courts are going to allow rights to be pursued ‑ ‑ ‑

KIRBY J:   That is a little complicated in this case because, instead of the New South Wales Parliament saying that no damages shall be recovered over the sum of X, it said no court shall award and therefore on one view you can give full faith and credit to the New South Wales law in the ACT by saying, “Well, we note that that is what they say in New South Wales, ‘directed to the court’, which is the New South Wales court, but we can give that full faith and credit but it does not speak to us”.

MR BALE:   Your Honour, that is the difficulty, I think, that others on the Bench have adverted to earlier in the argument.  I recognise that as a wrinkle in this case and our submissions are put on the issue of principle, not so much on how that principle needs to be applied to the somewhat difficult wording that the context of the various provisions of 151F, 151G and 151H create and it is unhappy wording whichever way one addresses it, because certainly one argument that would be open is it speaks - 151F, I think that is - to the courts of New South Wales by reason of the relevant interpretative provisions and not to courts elsewhere.

GUMMOW J:   Are there not a whole lot of cases which assume the contrary in this field, that when the law is translated across from the lex loci delicti to the forum that the necessary adjustments are made?

GAUDRON J:   Certainly that seems to be the premise upon which section 80 of the Judiciary Act applies where you are in matters of federal jurisdiction including, if you look at what was decided in Mewett, that the extension powers of limitation periods which were limited to State courts were transmuted so that the Federal Courts or courts exercising federal jurisdiction ‑ ‑ ‑

MR BALE:   Your Honour Justice Gummow was talking about 151F, I assume?

GAUDRON J:   Yes, but it is the same principle.

GUMMOW J:   It is the same idea.

MR BALE:   Yes, there are, your Honour.  There are cases, I think ‑ ‑ ‑

GUMMOW J:   Otherwise none of this would ever work because laws – you are talking about statutes and they are going to be applying to acts, matters and things of the law of the place of the delict and that will be it.  You will never have any relevant choice of law rule.  It will never work.

MR BALE:   We do not seek, in our submission, to address the operation and the proper interpretation of section 151.  As I say, we are seeking to address the in principle issue and all we say in relation to that is that we perceive that there may be some interpretative difficulty but it is not one that we seek to address.

Your Honours, could I simply, very quickly, because of the question raised by his Honour Justice Kirby earlier to Mr Walker, particularly, mention very briefly that there are a number of indicia that suggest that section 118 was perceived not to have a purely procedural effect at the time that the Constitution came into force.

KIRBY J:   Do not assume that I at least take the view that one looks at the Constitution in 1900. I mean, I do not think the Court did that in Sue v Hill.

MR BALE:   No. I would not for a moment, but your Honour did raise the question, what was the history of the Constitution.

KIRBY J:   Yes, and that takes you back before the Constitution. That takes you back to the United States Constitution.

MR BALE:   It does and I simply wanted to draw attention, firstly, to the analysis that I have mentioned of his Honour Justice Deane in Breavington of the earlier United States cases.  I want to suggest that it was quite clear, if one looks at those cases and one looks at the cases that are cited in Quick & Garran, that reference the immediate history to clause 118.

GUMMOW J:   But it does not come just from the United States.  It comes, I think on one view of it, from cases like the Duchess of Kingston’s Case.  There has been a trial for bigamy of this woman in the Ecclesiastical Courts.  The question then, what happens in an action in the Court of Queen’s Bench?  To what extent do they give full faith and credit to the Ecclesiastical Court’s decision?  And the answer given was, “We do not if it is fraud.”  So I think it goes back a long way and I think it goes back to England where there was a series of concurrent courts with various jurisdictions.

MR BALE:   Yes.  I am obliged to your Honour for that.  I do note from most of the things that I have seen written on this section in any event ‑ ‑ ‑

GUMMOW J:   Well, someone should have a look at (1776) 20 St Tr pages 355, 400 and 513.

MR BALE:   I am obliged to your Honour for that.

GUMMOW J:   That is where the Americans got it from, I think.  It comes from England, I think.

GLEESON CJ:   Mr Solicitor, is that a convenient time?

MR BALE:   Yes, your Honour.

GLEESON CJ:   We will expect the parties to agree between themselves on a division of time for tomorrow and if they have any difficulty making such an agreement then we will be pleased to mediate.  We will adjourn until 10.15.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 2 DECEMBER 1999