RW Miller & Co (South Australia) Pty Limited v McKain

[1991] HCATrans 89

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S103 of 1990

B e t w e e n -

R W MILLER & CO (SOUTH

AUSTRALIA) PTY. LIMITED

Applicant (Defendant)

and

WILLIAM THOMAS McKAIN

Respondent (Plaintiff)

Removal of cause pursuant to
section 40(1) of the

Judiciary Act 1903

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

Miller(2) 93 10/4/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 APRIL 1991, AT 10.03 AM

(Continued from 9/4/91)

Copyright in the High Court of Australia

MASON CJ:	Yes, Mr Ellicott.
MR ELLICOTT:	Your Honours, could I give Your Honours a

reference to a case of Wells, 345 US 514, an

American case. It is a dissenting judgment of

Mr Justice Jackson at page 521 and Your Honours

will note from that that two other judges

concurred. May I also inform the Court that in

England the common law position has been reversed

by statute, subject to some public policy provision, but the statute is the Foreign Limitations Period Act 1984, so that the foreign

limitation governs, subject as I say to this policy

provision.

Could I take Your Honours to the judgment of

Mr Justice Menzies in Pedersen v Young, 110 CLR 162

at page 166 and I wanted to take Your Honours to

this in the light of the fact that the Court is now
exercising federal jurisdiction, section 79 of the

Judiciary Act and to cases such as this and

Fielding v Duran, a judgment of Mr Justice Dawson.

There is also a case, I think, of Bowtell, that

Mr Justice Toohey dealt with and another case that
Mr Justice Stephen dealt with and I will give

Your Honours a reference to that, but the purport of this is to point up the anomalies that occur if

one pursues this path and the submission I want to

make is that the anomalies are now such that

Your Honours should see that the submission that we are putting to the Court actually does, at least,

overcome one of the anomalies.

It may enable the Court ultimately to treat

the convenience of the parties, as distinct from the place of the wrong, as the appropriate place to which to remit a matter for the purposes of

hearing that is within the Court, or for the

Federal Court to do so, and I will develop that but

this judgment does not help us, but it is a

judgment which goes the other way, but I should

read it. He says at 166:

It is a well-established principle that

statutes of limitation, except where title is
affected, are rules of procedure only and form

part of the lex fori. The reason why such

statutes are so regarded is that they relate

to the remedy and not the right. Since

21 Jae. I c. 16 the usual form of a statute of

limitation has been to provide that an action

shall not be brought except within the time

stated after the cause of action arose.	A
statute in this form, notwithstanding any

generality of expression, must of necessity be
construed as applying to the commencement of

actions in courts subject to the.power of the

Miller(2) 94 10/4/91

legislature enacting it and to no other

courts.

He then goes on to refer to the relevant

provisions; to section 75(iv) of the Constitution,

to section 79. At the foot of the page he said:

If it should happen that the action is

heard and determined in Queensland, this Court

will then be exercising its jurisdiction there

and such laws of that State as are applicable

will apply. As at present advised I do not

think that the laws of a States relating to

proceedings in State courts cannot apply in

this Court by virtue of sections 79 and 80

merely because, upon their true construction,

as State Acts they relate only to the courts

of the State. It may well be a part of the

office of sections 79 and 80 to make

applicable in this Court some State statutes

which, upon their true construction, apply of
their own force only to courts governed by the
laws of the State in which the court is

exercising its federal jurisdiction although

it is clear that some such statutes are

outside the scope of these sections. Thus in

relation to the Victorian Supreme Court Act

which was then ..... Justice Dixon in Cohen

said: "I assume that in some way the law

which in England results from 21 Jae. I c.

16 ..... is in force in relation to an action

heard in this Court. If it had not been for

the doubts expressed in Lady Carrington .... . I

should have supposed that sections 79 and
80 ..... operated in such a way that a suit in

this Court ..... was affected by

sections 79 ..... of the Victorian Supreme Court

Act ..... (The doubts about the application

of ..... 79 -

have been removed by Musgrave -

Notwithstanding what I regard as the

possibility of applying in this Court, by

virtue of sections 79 and 80 of the Judiciary
Act, some statutes of a State which, upon
their true construction, apply only to the

courts of the State, it may well be impossible

to apply the Queensland statute of limitations

in this action even if it were to be heard and

determined in Queensland but this point I do

not find it necessary to decide here. The

position as I see it at the present stage of

the action is that the Queensland statute

pleaded cannot apply if the action is heard in

the registry in which it now is. In these

circumstances the defendant's plea is

Miller(2) 95 10/4/91

demurrable if for no other reason than that it

omits ..... the allegation without which the

statute pleaded cannot possibly be an answer

to the plaintiff's claim.

That, of course, was a case of an action

between residents of two States, New South Wales

and Queensland, and the proceeding was commenced by

a writ issued out of the State of New South Wales

Registry.

Could I take Your Honours to a decision of

Mr Justice Dawson in Fielding v Doran, 59 ALJR 511.

At page 512 I will just read the facts - two

applications before His Honour for an order

pursuant to section 44; this action be remitted

either to Victoria or to Queensland.

The action is for damages for injury

sustained by the plaintiff in a motor car

collision caused by the negligence of the

defendant. The accident occurred on

24 July 1980 on the Bruce Highway ..... The

action was commenced in the Victorian Office

of the Registry of this

Court ..... approximately four years after the

cause of action is alleged to have arisen .....

But for the occurrence of the accident

there and the presence of the police officer
to whom the accident was reported, the action
has no connection with the State of

Queensland. The plaintiff and her medical

witnesses are to be found in Victoria and the

defendant is in Tasmania.

So obviously the convenience of the parties would

be to have this case heard in Victoria.

If this were all, then it seems clear that the convenience of everyone would require

me to order the remitter of the matter to the

appropriate court in Victoria. Counsel for

the defendant contended otherwise. He

maintained that the necessity for the court to

view the place where the accident occurred,

together with the presence of the police
witness in Queensland, tipped the balance of
convenience in favour of the State of

Queensland. However, I think that the

circumstances of the accident are such that it

is unlikely that a view will prove necessary,

particularly as it appears that photographs

will be available. The evidence of the police

witness is not likely to be crucial and, in

any event, his present in Queensland is not,

of itself, a strong reason .....

Miller(2) 96 10/4/91

But the matter is complicated by the

existence of differences between the
applicable law in Victoria and Queensland. The
first point of difference concerns the
discount rate to be considered in calculating

an award of damages. Section 5 of the Common

Law Practice Act requires an award of damages for future loss ..... to be discounted by five per cent ..... The discount rate applicable in Victoria is three per cent.

The second point of difference is the

rate of interest payable upon the award of

damages. In Victoria s. 79A ..... the Act

provides that the judge, upon application,

shall give damages in the form of interest at

"such rate not exceeding the maximum rate

approved -

et cetera.

In Queensland, the position is governed

by s.72 ..... It invests the judge with a

discretion as to the rate of interest to be

applied and interest may be payable in respect

of a greater period than in Victoria .....

These differences of law, when measured

against the factors indicating the balance of

convenience posed a question similar to that

recently decided in Pozniak v Smith. In that

case their Honours stated the question to be:

"Is the balance of convenience a factor

which is capable of affecting the exercise of the discretion when the choice is between two systems of law which confer rights of a

differente measure upon the plaintiff?"

In the earlier case of Robinson v Shirley

Brennan J., though leaving the question open,

indicated his view .....

"I am not persuaded that convenience in

the conduct of the trial is a factor which is
capable of affecting the exercise of the

discretion which must choose between two

systems of law which confer rights of

different measures upon the plaintiff. But it

is not necessary for me to decide that

question in the present case, for the balance

of convenience does not clearly favour a trial

in Sydney."

In Pozniak's case, this Court accepted that the balance of convenience favoured New South

Wales over Queensland. Howeverr Gibbs C.J.,

Miller(2) 97 10/4/91

Wilson and Brennan JJ. in a joint judgment, were not persuaded that that was decisive of

the question. After noting that the diversity

jurisdiction of this Court is designed to

provide an impartial forum and not a separate

body of law for the resolution of disputes

between residents of different States, their

Honours enquired whether the balance of

convenience spelt injustice.	They expressed
their answer in this way:

"We do not seek to minimise the relevance

of the factor of convenience in a case where
the applicable law in the competing

jurisdictions is substantially similar. It is

then of great importance. However, in our

opinion, it cannot go beyond that unless the

circumstances are exceptional. The balance of

convenience cannot be allowed to lead to

injustice. The only safe course, in a case

where the relevant law in the competing

jurisdictions is materially different in its

effect on the rights of the parties, is to

remit it to the State whose law has given rise

to the cause of action."

Mason J at 712, also expressed his resistance to the "notion that in determining which court shall hear the case when there is a material difference in the laws of the States we should give effect to the so-called right of the

plaintiff to select the place of hearing,

subject only to the balance of convenience".

He referred to the selection of the lex loci

delicti by Brennan J. in Robinson's case. In

Mason J.'s opinion, the "attraction" of the

reasoning in Robinson's case was "obvious".

That was so, according to His Honour, because

the approach adopted there favoured the "law

most closely connected with the circumstances

giving rise to the cause of action".	However,
he was of the view that there will be cases
"where some State, other than the State in
which the accident occurred, has a more
significant relationship with the occurrence
and the parties, in which event the case will
be remitted to that State and its law will be
applied":

Now, of course, one has to have in mind what the

Chief Justice said in Breavington, in relation to

his view in Pozniak - not necessarily that view,

but the view that those rules should still be taken

into account.

There is, however, in addition to the differences in the laws of Victoria and

Miller(2) 98 10/4/91

Queensland, to which I have referred, another

circumstance -

and there is reference to section 11, which limits

the action to three years -

If that section were applicable in the present case, the action would be statute barred. In Victoria, the State in which the action was commenced in this Court, the period of

limitation for ..... personal injuries ..... is

six years ..... Were the action to be heard in

Victoria, the six year period of limitation

would apply and the plaintiff's action would

not be statute barred. See Judiciary Act 1903

(Cth), s.79.

Now, whether that is a correct statement, or

whether it is referring to an action actually
brought in the court in Victoria, it is not clear

to me as the reader.

It was contended by the defendant that

the Queensland period of limitation would be

inapplicable if the matter were remitted to

that State, although he reserved the right to

argue the opposite in that event. The

plaintiff, on the other hand, submitted that

she should not have to run the risk of her

action being statute barred and that such a

risk was a sufficient reason in itself for the

action to be hear in Victoria.

Assuming that the Limitation of Actions Act 1958 (Vic) would apply were the action to

remain in Victoria and that the Queensland Act

would apply if the action were remitted to

that State, there would be strong reasons

against remitting the action to Queensland.

In State Bank Gibbs C.J. refused to remit

to the Supreme Court of New South Wales an

action in contract. Although it was assumed

that the cause of action arose under the law

of New South Wales, it was submitted that if a

federal court were to try the action, s. 94 of
the Supreme Court Act would have no

application. That section gives the Supreme

Court of New South Wales power to award

interest on money recovered in an action. The

chief justice, without deciding the point, was

influenced by the view expressed by Mason J.

in Australian National Airlines .. ... He

explained that it was open to him to decide

the matter that way because:

Miller(2) 99 10/4/91

"It does not follow that Pozniak v Smith

requires that the matter be remitted to the

Supreme Court of that State. the purpose of

the remitter ..... is simply to relieve this

Court of the necessity to hear cases that

might more conveniently be heard elsewhere -

and I do not think I need to read the rest of that.

At the foot of the page:

In my view, however, it is unnecessary to

have regard to these considerations because I inapplicable if the action were remitted to
have reached the clear conclusion that the

Queensland. No doubt the Queensland court

hearing the action would be exercising federal

jurisdiction so that the provisions of s. 79

of the Judiciary Act would apply bringing

s. 11 of the Limitation of Actions Act, if

application, into operation. But as Stephen

J. decided in Scotland v Bargen s.79 merely

picks up State laws as it finds them ands. 11

of the Queensland Act prescribes a period of

limitation for actions brought in Queensland

and not otherwise. Such was also the view of

Kitto J. in Pedersen v. Young ....

I do not doubt that the view expressed by

Kitto J ..... and the decision of Stephen J. in

Scotland V. Bargen were both correct.

Your Honours, Bargen is reported - I do not think I

need to take Your Honours to it because I think

this is sufficient reference to it, in

Mr Justice Dawson's· judgment, but it is in 154 CLR

at 318 - the official reference.

I do not regard the contrary as being tenable.

Section 11 of the Limitation of Actions Act 1974 (Q) is capable of an operation only in

relation to actions brought in Queensland and

commenced elsewhere.

I am, therefore, able to approach the

present application upon the basis that the
plaintiff's action would not be barred should

it be remitted to Queensland. Had it been

otherwise I should have been compelled to

regard the limitation period in Queensland as

a material circumstance in the exercise of my

power to remit the action to that State for it

is hardly to be supposed that the power of
remitter is to be exercised so as to deprive a

plaintiff of a right to proceed which would

can have no operation in relation to actions

Miller(2) 100 10/4/91

otherwise exist in the diversity jurisdiction

of this Court.

However, it seems to me that the position

is different so far as the other material

differences between the respective laws of

Queensland and Victoria are concerned. The

purpose of this Court's diversity jurisdiction

is not to enlarge or diminish the substantive

rights of the parties and it is necessary to

have regard to those differences in exercising

the power of remitter under section 44.

Now, Your Honours, Your Honours will recall the

reference to construction that I referred to

yesterday in Kay's Leasing in the sentence that I
read from the judgment of Mr Justice Kitto, that in
order to restrain the seeming universality of the

relevant enactment, it should be presumed that the

intention was to affect only those rights and

obligations, the discharge of which was governed by

the law of the enacting State, we would say,

according to the rules of private international

law. It is basic, of course, to our submission,

that the rights and obligations are the rights

which circumscribe the entitlement to damages.

Now, one important - - -

DEANE J:  Mr Ellicott, what if the Act had, in this case,

said, "Without extinguishing the cause of action or

affecting its enforceability in courts outside

South Australia, no action shall be brought in a

South Australian court".	What would the result be
in your argument?

MR ELLICOTT:  The same and, indeed, I wanted to pursue that

now, not in quite the same way, but really what I

was about to refer to about Breavington, I would

submit, encompasses that, because what I wanted

to - - -

DEANE J: Because, unless that be so, if all that is

involved here is a question of construction, there

would be very powerful reasons for this Court

taking the view that it should not interfere with a
strong line of authority settling that question of
construction, but should leave it to legislative

action.

MR ELLICOTT: Yes. Well, Your Honour, we would submit that

the result is the same whatever the statute says.

When I say "whatever the statute says", I mean if

it says what Your Honour puts to me.

DEANE J: Well, you deal with it in your way.

Miller(2) 101 10/4/91

MR ELLICOTT: Could I remind Your Honours, just now going

back to Breavington, 169 CLR 41 at page 67, where

the relevant provision is set out. It said: Subject to subsection (2), no action for

damages shall lie in the Territory in respect

of the death of or injury to a resident of the

Territory in or as a result of an accident

that occurred in the Territory.

Now, Your Honour Justice Deane will understand I am

placing emphasis on the words "no action for

damages shall lie in the Territory" and one could

add, in parenthesis, (and we are not intending to
say anything about any other place), but it is this

provision which the Court saw as providing a

limitation on the right to recover damages

according to the law of the place of the wrong.

Now we would submit, likewise, that a statute of

limitations which could be construed as the Court

has construed it in Pedersen v Young, should be

applied so as to limit the right to the entitlement
to damages in the same way, because what one is
ascertaining is what is the right which the
plaintiff has to recover damages in the place of
the wrong, and it would not matter whether it said

those things that Mr Justice Deane put to me, it

would still lead to the same result and, indeed,

the same point was pregnant in the case of

Breavington.

Now this much may be said about Breavington;

that it has indicated that limitations on the right

to recover damages are not procedural, they are

matters which clearly affect the entitlement and

therefore should be taken into account under one or

other of the approaches that we discussed
yesterday.

Now, going back to Mr Justice Dawson's judgment in this case of Fielding and remembering

the points that were raised, the first point that I

just want to advert to is this, that the issue

that arises as to the discount rate, we would

submit, as a result of Breavington has clearly now

been subsumed, that is to say that it relates to

damages and the right to damages and therefore the

law of the place of the wrong will be the

significant matter. Now, I do not have to develop that but I do submit that that is a consequence of

Breavington and what I am seeking to do is to show,

if it is within my power to convince Your Honours

about it, is that the proposition that we are

putting to the Court is so fundamental that it does

enable courts exercising federal jurisdictions to

do justice within the Commonwealth in a way which

would give to parties the same rights wherever the

Miller(2) 102 10/4/91

action is heard subject, of course, to the

procedural provisions that govern the actual trial
but so that the various provisions which delimit

the cause of action or the entitlement to damages

are picked up from the law of the place of the

wrong so that the question of discount would be

covered.

Recently, in a decision

BRENNAN J: But is not your problem to make good the

proposition that the South Australian law,

whichever section may be applicable, is one which

comes within the exception to which

Mr Justice Menzies referred in Pederson, namely, a

case where title is affected?

MR ELLICOTT: With respect not, Your Honour. We would

submit that the true construction of any statute of

limitations is that it is saying that in the place

of the wrong the person wronged shall not be
entitled to recover damages unless they proceed
within six years or three years, as the case may
be. It matters not that it is limited to actions
within the State. That is not the point and, of

course, this point was not dealt with by the Court

in Pedersen v Young and has not become a relevant

point until now.

It has to be remembered, repeating of course,

what I put to Your Honours yesterday, that Pedersen v Young have been decided and those cases have been

decided against a background of Koop v Bebb and the

Phillips v Eyre principle and the proposition that

it was the law of the forum that governed the

rights of the parties, subject to some narrower

view of the application of the principles in

Phillips v Eyre. It was therefore very natural

that in dealing with Pedersen v Young the Court

would not think of doing any more than saying,

"Well, that statute only applies to actions

commenced in South Australia".

That in itself has immense consequences for

this reason: that it means that any action can be

brought within the High Court, indeed within the

Federal Court, in those courts and not be subject

to any limitation period.

Now, Your Honours spent a lot of time, I am

sure, on Commonwealth v Verwayen considering

questions of estoppel and the like, and I will not

say any more about it .. But had that proceeding

been commenced in the High Court Your Honours would
have been saved the problem because there would

have been no limitation period.

Miller(2) 103 10/4/91

On the other hand, we have Commonwealth v

Dixon that I referred to yesterday that does raise

the question because the proceeding was started in

the High Court. We say that the judgment of

Justice Dawson and Justice Stephen indicates quite clearly, and we would say consistently, with

Pedersen v Young, that there is no limitation once

actions are brought in the High Court.	That
surely is an anomaly.	Your Honours obviously can

say it is an anomaly which legislature can deal

with, but is it an anomaly which this Court can

deal with? That is the question.

McHUGH J: But it is a different problem. In a diversity

problem your problem is should you have separate

law applying to actions heard within a State simply

because one is heard in a Federal Court and one is

heard in a State court? I can appreciate the force

of your criticism of Pedersen v Young in that

respect, but in the choice of law problem you have

a different problem. It is which legal regime

should apply particularly in relation to procedural

law?

MR ELLICOTT:	But it is, indeed, the same problem.
MCHUGH J:	No, it is not.
MR ELLICOTT:	I would submit it is. Let us just take an

instance of what happens if you follow this path, well it is the path that is being followed at the

moment.

McHUGH J: Could I interrupt you just to say this: it seems

to me, although you have never said it in terms,

that your argument very much depends upon the

vested rights theory. You have never said it but

that is what it really comes to - - -

MR ELLICOTT:	I do not have to say that.
McHUGH J: But what has to be applied in New South Wales is

the law of New South Wales.

MR ELLICOTT: Yes. If the vested rights theory had been -if

that was it, it was adopted in Breavington's case,

we would say. We are not seeking to have it

adopted here. If that is the effect of our

argument it is the effect of Breavington, that is

our answer to that, Your Honour. All we are saying

is, "Now, let us look at Breavington and see what

it decided", distill the principles, and say, "Now

what is the relevant law to determine the

entitlement to damages?"

Can I take this instance. An action entered

in South Australia in which A, a resident of South

Miller(2) 104 10/4/91

Australia is injured by a resident of New South

Wales, being the driver. If A sues in South

Australia, and assume these provisions apply, a

three-year period applies. If A sues in New South

Wales the argument would be six-year limitation

period applies. If A sues in the High Court in New

South Wales no limitation period applies if heard

there.	If the action in the High Court is set down
period, in the very State, no limitation period. If they had proceeded in the South Australian	for hearing in South Australia no limitation the Supreme Court of South Australia no limitation period.
Now, that would seem to be the consequence of the present approach in the area which section 79
covers and all I am submitting is that if our
argument is accepted, then it overcomes that problem and it overcomes the obvious anomaly which
exists in relation to it because whilst it exists
it discourages the uniformity that the Court
considered, we would submit, certainly by a
majority, to be of great importance in Breavington
and it certainly encourages forum shopping in a way
which is blatant. It is perhaps, at first sight,
an unbelievable proposition that there is no
statute of limitations or no limitation period in
an action in the High Court but it would seem to be
the result of the decisions of the Court, and we
would submit that in the eyes of reasonable people it could properly be regarded, that is the result
of all that, as absurd and it is not appropriate to
a judicial system.

McHUGH J: It is not absurd if you understand that you are

enforcing in New South Wales the law of New South

Wales, subject to its statutes of limitation.	You
are not enforcing the law of South Australia.

MR ELLICOTT: But that, with great respect, Your Honour,

begs the question and the question is, "What law of

New South Wales are you enforcing?", and we

are - - -

McHUGH J: The one that is given by New South Wales.

MR ELLICOTT:	- - - we are submitting that you are enforcing the law, whether it derives from section 118 or the
principles enunciated by the Chief Justice or the
second rule in Phillips v Eyre as expressed by
Justices Brennan and Dawson, the law of New South
Wales is that the entitlement to damages of a party
suing in New South Wales where that party is
resident in another State or Territory, that law of
New South Wales says - the applicable law in New

Miller(2) 105 10/4/91

South Wales says, ''That entitlement is delimited by the limitation period of another State''.

Now, that is the law, and the statute of

limitations of New South Wales has to be construed in the light of that law because that is the basic law and, obviously, if it is section 118, there is no question about it. But if the limitation period

in New South Wales is treated as procedural, well,

it must give way, that is, for the purposes of confining it to New South Wales as it could be under the statements by Mr Justice Menzies, then,

obviously, it is confined to procedural matters.

But when you are dealing with substantive law, and

it must give way to substantive law, the

substantive law that we are seeking to have applied

as the law of New South Wales - not as a law of

South Australia, but the law that is applicable in

New South Wales - is that the right of action of a

person who sues in relation to a tort committed in

another State is to be delimited by the statute of

limitations of that State. That is our proposition

and it is either right or wrong.

McHUGH J:  How does it fit in with the old law that you

could always enforce a promise to pay in respect of

a cause of action which was statute barred, the

theory being that the cause of action still

subsists, only the remedy is barred? Now, does

your argument mean the rejection of that long held

aspect of the law?

MR ELLICOTT: It depends there on the intention of the

parties. It would have to if it is a contractual

arrangement.

McHUGH J:  But if your argument is right there is no

consideration for the promise.

MR ELLICOTT: If it, in effect, is saying, "We will pay this

amount notwithstanding that the debt is statute

barred", well, so be it. That is it. That is the

contract and the Court will enforce it.

McHUGH J: Because there is consideration given for the

promise.

MR ELLICOTT: Yes, but that is quite different to a

situation where one is asking the question: what

is the relevant law to be applied by a court in New

South Wales that has a statute of limitations which is, according to Pederson v Young and these other

cases, confined to actions in New South Wales but

which is, we would submit, by ordinary rules of

statutory interpretation to be confined to

procedural aspects and to give way to the

substantive law that this Court would declare to be

Miller(2) 106 10/4/91

the law if it agreed with us. That is how that

would arise. So that that is our answer,

Your Honour. It is either right or wrong.

GAUDRON J: 

Mr Ellicott, I wonder if I might ask you this:

is this really a case about enforcing the laws of
another State or is there an earlier question about

actionability?  I make that question on the

assumption that we are not talking about diversity

of other federal jurisdiction; if we were talking

purely about State jurisdiction.

MR ELLICOTT: 

Your Honour, if one is talking about

enforceability in the sense of - - -

GAUDRON J: Actionability.

MR ELLICOTT: - - -accepting jurisdiction and then enforcing

a judgment, well this is not about that. This is

asking the question: what is the right of the

person to damages at the moment that person calls

up the jurisdiction - - -

GAUDRON J:  Or is it?

MR ELLICOTT:  - - -of New South Wales. At that point of

time one answers that by reference to the law of

the place of the wrong and one can say of that, you

can use the word actionability, you can say is this

actionable in South Australia? But that is only
the same thing as saying, is this person entitled

to damages in South Australia.

GAUDRON J:  It may be the same result but the distinction as

to actionability is one that was there as long ago

as Phillips v Eyre and it was not necessarily

abandoned by Breavington v Godleman, was it?

MR ELLICOTT:  We would submit that although this case is a

different case on the facts, that in principle it

is saying the same thing. In other words, it is

entitlement of a person to recover in the place of	saying that as in Breavington a partial cap, for instance, on damages is something that goes to the
the wrong, so a total cap on damages, if you like, however it comes about, whether by reason of some
provision such as - for instance, if it is said that there should be no damages for torts for personal injury, that would govern, a la
Breavington. Likewise a total cap under a statute
of limitations would cover.

You can say of the position in Breavington

that it is not actionable. Once you read that

provision I referred to earlier, there is no right to take action in the territory to recover damages

for pain and suffering. It is not actionable to

Miller(2) 107 10/4/91

that extent. We are saying, all right, you can say

it is not actionable completely because it is

statute barred.	But it is a distinction without a
difference.

GAUDRON J: Could I ask you this: leaving aside the

position in this country where at least some

distinction may arise by reason of the nature of

federal jurisdiction, is there any case elsewhere

that you know of where an action has been allowed
to be maintained, that action being statute barred

in the place of the tort at the time when it was

commenced in the forum?

MR ELLICOTT: It is implicit in Guaranty Trust and Heavner,

we would submit - I just do not recollect fully the

facts - but I think it is implicit in both those

cases that that would be so.

GAUDRON J: That was not a tort case.

MR ELLICOTT:  I think Heavner -

GAUDRON J: Heavner was.

MR ELLICOTT:  - - - was a tort case, and the other one was a

trust case, but the same principles, we would

submit, would apply. And we would submit that it

would be completely offensive to the notions that

Your Honour expressed in that joint judgment to

allow the consequences that I have just addressed

on to exist within our system. If there is a
single system of law, one has to ask the question,

"Where are you going to put the knife?"

GAUDRON J: Well, the question is: can it arise in a single

system of law? Can this problem arise in a unitary

system?

MR ELLICOTT: I am sorry, Your Honour, I - - -

GAUDRON J:  Can a foreign tort which is statute barred in

the place of its occurrence be the subject of

action elsewhere, that elsewhere being a unitary

system of law?

MR ELLICOTT: Well, Your Honour, a lot is going to depend on

what this Court would say of the rules in Phillips

v Eyre, how far they extend.

GAUDRON J:  I am asking you about how those rules were

applied in the situation. That is the important

point.

MR ELLICOTT: Well, Your Honour, I do not know of such a

case as that, but if one took the second rule in

Phillips v Eyre and said that in some way all it

Miller(2) 108 10/4/91

was asking, "Is this sort of claim one that could

arise under the law?", in other words, could a

person be sued for negligence in Barbados, then

that would give a satisfactory answer to the second

rule. But that has not been the result of

Breavington, we say.

GAUDRON J:	No.
MR ELLICOTT:	We say that Breavington, even in the judgments

of Justices Brennan and Dawson, has moved away from

that proposition if that is a valid statement. And
that would be a valid statement if one still

entertained the view that that old case of Machado

v Fontes still had something to say on the matter.

But I would submit that the current law in

relation to Phillips v Eyre as expounded in those
two judgments in Breavington is such that it would

now, to be logical, have to exclude the situation,

that is to say, it would have to say that it was

not actionable in the State of the wrong if a

similar rule was to be applied. But if there is

going to be a distinction between international and

intranational, that is for another day - - -

BRENNAN J: Well, is this for another day?

MR ELLICOTT:  - - - but it is odd to think that the Court

would take a different view.

BRENNAN J:  Is it not fundamental to your argument? Do you

not have to in some way transform a federation into

a unity to produce what you are describing as a

unitary system, as distinct from a reciprocal

system in which mechanisms are provided for

bringing the respective sources of law into

conformity and available for application in instant

cases?

MR ELLICOTT:  With respect not, Your Honour. Your Honours

have	already done it in Breavington, if that is
what	it means.	But we would submit that is not
what	it means.	What it means - - -

BRENNAN J: Are there not two possibilities? One is that

you have what you call a unitary system of law,

that is, not that there is any conflict between

laws and a method of resolving that conflict, but

only one law. Or alternatively, and if that be so

then, of course, you have an Australian law derived
in some way by the Constitution and constrained

into unity by the Constitution, though it be a

federal Constitution. The alternative is that any

court in Australia exercising State jurisdiction

can exercise only jurisdiction under the law of the

forum. And the question then is: what does the

Miller(2) 109 10/4/91

law of the forum say about the law of the State of
the place of the delict? Have you not to go back
to that fundamental question of what law is being

applied?

MR ELLICOTT:  I thought I had in the last day, Your Honour -

go back to that, that is what we are submitting:

that the law of New South Wales, if that is the

forum, is saying that the law of the place of the wrong shall determine the entitlement to damages,

and there is nothing inconsistent with or contrary to the idea of law within a federal system in that

proposition, because all that is doing is restating

a problem, or solving a problem that had existed

internationally, but also exists because of the

fact that within our federation we do have State

and federal parliaments, and we do have the power

for the States to effect the common law, and

therefore that the law in the various States will

differ.

But so far as the common law is the same, and

putting section 118 aside, that common law is

expounded by this Court which lies at the head of

that system - that unitary system - in that sense,

as expounded by this Court, will be binding on all

courts, because that is why this Court is here, in

part, to expound that common law and tell the

States what the law is, and that is part of the

compact, if one looks at it that way. Now that is

not a problem, we would submit, and that is not a

problem whether you are looking at it from the
point of view of Phillips v Eyre, or a new
principle; it is certainly not a problem under the

section 118 approach.

Your Honours, we would submit that it is

immensely important to stand at the door of the

court, wherever it is; in any State or Territory,

and just at that moment before the writ is taken

out, ask, ttHas this person got a right or an

entitlement to damages in the place of the wrong?".

Now, we are entitled to ask that question because

this Court has said it is the place of the wrong
that is going to govern it and if, according to the

law of the place of the wrong, there is no such

entitlement and we say you take into account the

that person does not have a right." Now, that is

limitation period for that purpose, even though it

is only directed to the courts of the State or

as clearly as I think I can put it from the point

of view of how the question has to be answered.

But just in conclusion, can I just submit that

we would submit that the result of our argument

would be that when this Court, in dealing with such

Miller(2) 110 10/4/91

matters as Mr Justice Dawson did in that case of the difference in the discount rate; it could put aside questions such as the differences in the

limitation period, and one would think, in having

regard to the recent decision in MBP v Gogic - I

will not take Your Honours to it, in relation to

interest rate, that is in 98 ALR 193 - that the

Court could put aside questions in relation to interest because they too are an aspect of the

measure of damages and once Breavington has gone

into the damages area, ·it has indeed gone into the

area of State and Territory law, and it may well be

that there is a law of New South Wales, a statutory

law, that says that in actions in this State you

can recover damages for pain and suffering, but the

effect of Breavington is that if the law of the

Territory says that in actions in this Territory no

such damages can be claimed, the effect of
Breavington is that they cannot be claimed in New

South Wales.

It has become the law of New South Wales, and

in other words, under the Territory situation there

has been a cap on part of the remedy, under the

statute of limitations there is a cap on the whole

of the remedy. Your Honours, I think that is all I

wanted to submit to the Court.

MASON CJ:  Thank you, Mr Ellicott. Mr Solicitor for

Victoria.

MR BERKELEY:  I wonder, Your Honours, if I might hand up

copies of our outline of argument.

MASON CJ: 

Thank you.

MR BERKELEY: 

Your Honours, the proposition we seek to

establish by our argument is this, that when there
is a conflict between the statutes of two States
that conflict is to be resolved in accordance with

rules formulated by this Court and they are to be

formulated in accordance with whatever policy this Court thinks it is appropriate to adopt as between

the States of the Commonwealth of Australia and
those conflicts are not to be resolved by automatic

resort to the common law rules of private

international law.  And we say that because, in our

submission, section 118 of the Constitution has
everything to do with conflict of laws as between

two States and to establish that might I go

straight away to Sun Oil in 100 L Ed, it would also

be in 486 United States Reports when they become

available.

Now the facts of that case do not matter

terribly much for the purposes of our argument but

Miller(2) 111 10/4/91

it was a conflict of law situation. There was a

judgment delivered by the majority. There was

also, I should explain, a concurring judgment

delivered by a minority but the reasons for the
concurrence were not the same as the reasons of the

majority and the majority in fact in a passage I
will refer to criticized those reasons. Could I go

to page 753 of Sun Oil in the right-hand column

under [4a].

The first sentence of the Full Faith and

Credit Clause was not much discussed at either the Constitutional Convention or the state

ratifying conventions. However, the most

pertinent comment at the Constitutional

Convention, made by James Wilson of

Pennsylvania, displays an expectation that it

would be interpreted against the background of

principles developed in international
conflicts law. Moreover, this expectation was

practically inevitable, since there was no

other developed body of conflicts law to which

courts in our new Union could turn for

guidance.

And then there is a footnote which is [4b] which is

apparently a footnote written by the judges in the

majority where Their Honours say:

Justice Brennan's concurrence,

post ..... misunderstands the famous statement

from Milwaukee County ..... that "the very

purpose of the full faith and credit clause

was to alter the status of the several states

as independent foreign sovereignties." This

statement is true, as the context of the

statement in Milwaukee County makes clear, not

because the Clause itself radically changed

the principles of conflicts law but because it

made conflicts principles enforceable as a
matter of constitutional command -

that is the Constitution says there shall be

conflicts of law principles as between States -

rather than leaving enforcement to the

vagaries of the forum's view of comity. The

Full Faith and Credit Clause "substituted a command for the earlier principles of comity

and thus basically altered the status of the

States as independent sovereigns".

The concurrence's assertion ..... that

Milwaukee County did not rely upon

international conflicts law is entirely

because the point. It is not our point -

Miller(2) 112 10/4/91

the majority say -

that the content of the Full Faith and Credit

Clause is governed by international conflicts

law, but only -

I will leave out the words in parentheses -

only that its original content was properly

derived from that source.

So that when in the United States the Supreme Court

is deciding a conflict case between two States the

rule which the State follows is not the common law
rule of private international law but the rule

established by the Supreme Court for that purpose,

and as we understand what the majority say in this

case, the Constitution, that is Article IV,

section 1 and in our Constitution section 118, the

constitutional guarantee and command is that as

between the States of the United States or the of law principles, but it leaves the content of section 118 to be filled out by this Court.

Now, when the Supreme Court did that in the

United States - when the Supreme Court lays down a

principle of conflicts law to be adopted for the
purpose of resolving an interstate conflict, the

Supreme Court is not construing the Constitution,

but it is applying what is implied in the
Constitution that the content of Article VI
section 1, of the full faith and credit clause,

shall be filled out by the Supreme Court, adopting

whatever policy the -Supreme Court thinks is

appropriate for the circumstances of the States of

the union.

DEANE J:  Mr Solicitor, which do you read as the original

attack in these footnotes and which is the empire

striking back? Footnote 3 at page 764 says that
the majority must cite Milwaukee.	I suppose -

MR BERKELEY:  I am sorry, Your Honour, where is it, at

page - - -?that, - - -

DEANE J: Page 764.

MR BERKELEY:  I am not saying - the majority were not

criticizing Milwaukee in the footnote, they were

criticizing Justice Brennan's view of it.

DEANE J:  I am sorry, I was diverting you, but I was just

trying to work out - - -

MR BERKELEY:  Your Honour is always diverting, if I may say

so, with respect.

Miller(2) 113 10/4/91

DEANE J: - - - which came first.

MASON CJ: Well, I think (4a) came first and footnote 3 is a

reply, because you will see in the text on

page 764, Justice Brennan does cite Milwaukee and

he cites the passage which is the subject of the

criticism in footnote (4a).

MR BERKELEY:  I think, if I might say so, we would like to

suggest that (4b) is a statement by the majority of

the court.

MASON CJ: Yes.

MR BERKELEY:  Now, what in fact the United States Supreme

Court did - there is a book I got from the library in this Court, which is called American Conflicts

and I will merely give a reference to it,

4th Edition by Professor Leflar and others, and

that book has a section on Faith and Credit to

Public Acts, in connection with conflicts of law,

which starts at page 217. It was published in

1986, which would be before Sun Oil, but it is

apparent enough that what happened in the United

States was that the United States Supreme Court adopted as appropriate to the circumstances of the union, the rules of private international law which

were applicable as between foreign jurisdictions

and one can see that that might well have been

appropriate because every State supreme court is

the ultimate court of appeal for State matters and

one could expect the common law to develop
differently and indeed it was not always the common

law.

So that, in a real sense, the different States

of the union are much more akin to foreign

jurisdictions than the States of the Commonwealth

of Australia and it follows from that, in our

submission, that what was appropriate in the

United States will not necessarily be appropriate

for Commonwealth and Breavington shows that,

because a large part - well, in so far as one can

ascertain any common ration from Breavington, it is

apparent that three, and we think four of the

Judges were of the view that whatever might be the

situation as between the State of Victoria and some

foreign jurisdiction, as between the State of
Victoria and another State in the Commonwealth, the

State of Victoria should look to the law of the lex

loci. I am sorry, should look to the law of the

locus; my junior has been telling me that for days.

Now, this consequence that once - - -

BRENNAN J: There is no doubt that the court of the forum

must look to the lex loci. Anybody agrees with

that.

Miller(2) 114 10/4/91

MR BERKELEY:	Yes, Your Honour.
BRENNAN J:	The problem is whether they must shut their eyes

to the lex fori, and in respect of what matters.

MR BERKELEY:  Yes, Your Honour. May I deal with that in due

course, Your Honour? I have not overlooked the

point. In fact, I am beginning to start on it
because once you get away - I mean, Phillips v Eyre

says you have to have a complete cause of action,

you have to have every ingredient - the conduct

overseas has to include every ingredient of the

tort according to English law even though it might

not be a tort by local law. So that it is like

where you have to have a tort by English law, you

have to prove that in the English court, then one

can see it is fairly rational to say that that

cause of action is created by the law of England.

It is not created by the law of California or

anywhere else. But once you depart from that as

you did in Breavington v Godleman, what you have to

do now in the Supreme Court of Victoria is to say

you have to have every ingredient of the tort,

according to law of South Australia.	It might not
be a tort in Victoria at all.

Indeed, that is the situation in the United

States. Some States have statutes which create

death actions, Lord Campbell's Act actions, and

some States do not. Now, the textbook I referred

to says that the Supreme Court has held that even
though a State has not itself provided for death

actions, the full faith and credit clause requires

it to entertain an action for a death claim which

arises in another State.

So, once you get away from Phillips v Eyre you

also get away from Koop v Bebb because the

rationale of that is that you have to have a cause

of action according to the law of the forum.	But
that is not any longer the case.	You have to have
a cause of action according to the law of the place
where it all happened.	It then becomes easier to

say, and we would say the consequence is that that cause of action is created by the law of the place

where the thing has happened, not by the law of the

forum.

McHUGH J:  Does that mean that the State courts do not apply

the law of their sovereign?

MR BERKELEY:	Did Your Honour say "sovereign"?
MCHUGH J: Yes.

MR BERKELEY: Well, if I might say so with respect,

Your Honour, that is a very strange word to use at

Miller(2) 115 10/4/91

this stage of the development of our Constitution

because they are not sovereign. The passage I have

just read out from Sun Oil shows that for the

purposes of conflict of laws they are not
sovereign. Section 118 does not allow them to

apply conflicts laws which would be appropriate between sovereign independent States. In fact, section 118 says they are not to apply private

international law rules at all. What the State

supreme court has to do is to apply section 118

rules for the purpose of developing conflicts.

Now, this Court may say, in developing those

rules, it is appropriate to take the same rule as

the common law private international law. But as

in Breavington, this Court might say, for

Australia, it is not appropriate to do that.

McHUGH J: Are we going to hear any argument from you about

the interrelationship between section Sl(xxv) and

section 118, because Sl(xxv) or its American

equivalent was actually part of Article IV

section 1 and was put there for drafting devices

and, prima facie, it seems to me that 118 is

evidentiary only, having regard to Sl(xxv)?

MR BERKELEY:  I am sorry, I shall have to ask Your Honour;

when Your Honour says "evidentiary only", that

means that the State court has to accept the

existence and validity of an interstate law, and

that is all?

McHUGH J: In so far as it is applicable in the action; so

far as it is recognized. I know that Merwin

Pastoral gives it a substantive operation in that

situation, but you - - -

MR BERKELEY: There is a whole passage in the joint judgment

of Justices Wilson and Gaudron in Breavington - and

I will ask my learned junior to find it - which

says what section 118 is not, and one of the things

they say it is not is evidentiary.

McHUGH J: Well that is a minority view, is it not?

MR BERKELEY: Well, everybody was in a minority in that

case, that is one of my problem.	But the passage I
read out from Sun Oil says it is not.	The conflict

of laws is imposed upon the States of the United

States, that is a constitutional command - - -

McHUGH J:  The decision in Sun Oil, in terms, denied it was

a command. The argument in Sun Oil was that

whatever the State was, Kansas was it not, had to

apply the other law.

Miller(2) 116 10/4/91

MR BERKELEY:  Can I explain that to Your Honour? Perhaps I

ran over it too quickly, but as I understand what

was said in that footnote it is this, that

section 118 says that in resolving disputes between

two State laws, every court in Australia shall-

they cannot automatically just say, "We are going to apply the law of the forum", there has to be a

rule for resolving which law shall apply.

Section 118 of the Constitution says that and it

says it as a matter of constitutional command. It

develop rules and we have done that by analogy with

does not say what that rule shall be, and what the

the common law rules of private international law".

But when a State court applies that rule they are

not applying a rule of private international law,

they are applying the policy which we have evolved

for the purposes of section 118. So that rule is

not a rule of private international law, it is a

section 118 rule.

McHUGH J: That is not what it says, is it? If you look at

the bottom of 755 in the plurality judgment, six

lines from the bottom, the judges say:

Today, for example, we do not hold that Kansas

must apply its own statute of limitations to a

claim governed in its substance by another

State's law, but only that it may.

MR BERKELEY:  Yes, that is because the Supreme Court has

said, "As a matter of policy, as between the States

of the Unites States, the State courts may adopt

any common law rule of private international law,

so long as that rule, the results achieved, are
fair and equitable." But I think that is a red

herring because "fair and equitable" probably

comes from the due process clause. Now, what the

Supreme Court has done is to allow the States to

have a choice between the law of the forum, and in

some States we find that in matters of limitation the State has adopted the law of the forum and in

other matters the State has adopted the law of the

locus delicti.

But that is not because the common law rules

say that, but because that is what has been laid

down by the Supreme Court. The Supreme Court has

said, "This is what you will do", and in fact

probably that is why the full faith and credit

clause is in the Constitution, so as to enable the

Supreme Court to say what shall be done about

conflict of laws. If that article was not in the

Constitution the matter would never get to the

Supreme Court, not as far as State laws are

concerned, because the final and ultimate court is

each State's supreme court, and the ~nly way it can

Miller(2) 117 10/4/91

get to the Supreme Court is if it is a

constitutional matter, and it becomes a
constitutional matter because it is in the full

faith and credit clause.

So that the fact that Your Honour sees, in

Sun Oil, that Kansas is at liberty to do something

is because the Supreme Court says they may do it,

not because the rules of private international law

say they may do it.

McHUGH J:  But it is their choice. the Constitution. It is not mandated by

MR BERKELEY:  No, it is mandated by the Supreme Court

pursuant to the authority implied in the

Constitution, just as in Australia, if our

submission is correct, it will be the High Court

pursuant to the implied authority in section 118.

I do not think I want to say anything more about

section 118, but we would say, with respect, that

if our view of section 118 is correct and in view

of Breavington v Godleman, the position of

limitation acts is open. It is open for this Court

to decide what is the appropriate rule as far as

actions of tort are concerned. We would suggest

that the appropriate rule is that the period of

limitation should be governed by the same law which

creates the cause of action.

In Commonwealth v Dixon, 13 NSWLR 601, which has already been referred to, Justice Mahoney in a

brief passage discusses this question of procedural

statutes in a passage which we would seek to rely

on. At page 620 letter B His Honour says:

It may be, of course, accepted that a

State legislature may not, as such, prescribe the procedure to be followed in a Federal court and that, for some purposes, a statute of limitations is to be categorised as

procedural rather than substantive. But there

are, I think, distinctions to be made.

"Procedural" or "rule of procedure" are terms

which, on their widest meaning, may convey a

number of things which are different. Thus, a
provision dealing with the way in which a

court is to do what it does is procedural in

one sense. A provision which grants a

privilege to defeat a plaintiff's claim is, if

it be procedural, procedural in another sense.

Statutes of limitation have been classified as

procedural for a particular purpose, viz, a

purpose in the context of the conflict of laws

and in order that the courts may determine

what laws are to be applied in the courts of

the forum. It does not, I think, follow that,

Miller(2) 118 10/4/91

because a law has been categorised as

procedural for that purpose, it must be

categorised as procedural in considering the

powers of a sovereign legislature in a Federal

system.

We would say by way of analogy that because a

limitation Act is procedural for the purpose of a

rule of conflict of laws which says that this cause

of action is created by the law of the forum, it is

not necessarily procedural for the purposes of a

section 118 rule which says that as between the

States of Australia the cause of action is created

by the law of the place where the act is done.

And that in considering the situation for the

purposes of section 118, Your Honours are, in our

created the cause of action.

submission free - section 118 requires Your Honours which
to make a decision and Your Honours are free to
make the decision, in our submission, but for the

purposes of section 118 the appropriate Limitation

TOOHEY J:	Mr Solicitor, what do you mean by recreation of the cause of action when it is non-statutory. Are
you talking about the common law of New South Wales
or South Australia or the common law of Australia or what?
MR BERKELEY:	In the case of this case it would be the

common law of South Australia and in

Breavington's case it was the common law of the

Northern Territory.

Your Honour, that is an expression which was

used in Koop v Bebb. It was pointed out that in

the Phillips v Eyre situation where you had to have

a completely cause of action in accordance with

English law, common law or otherwise, I mean

whether it was a statutory cause of action or

common law cause of action, Phillips v Eyre still	required the alleged conduct to contain every	ingredient of the cause of action according to
English law, common law statutes.

Now, if it was a common law cause of action it

was ..... and inevitable to say, this cause of

action is the creature of English law and, indeed,

often enough it need not have been a cause of

action by the law of the locus. So, it was in that

sense that I was referring to the law which created

the cause of action. Now, in Breavington

v Godleman we would say, with respect, that it is

the law of the locus which creates the cause of

action. You may sue in New South Wales for

something which is not a cause of action at all in

Miller(2) 119 10/4/91

New South Wales but it is a cause of action in some

other State.

TOOHEY J:  When you say it may be a cause of action in one

State but not in another, you presumably mean because in the other State the right of action has

been excluded by some statutory provision?

MR BERKELEY: That would have to be so under our system,

yes, Your Honour, you have only got - - -

TOOHEY J: Well, then is there any room in this area of

debate for the notion of a common law of Australia?

MR BERKELEY:	It is not part of our argument, Your Honour, and I have always found it very difficult to
understand.  I mean, I can understand the common
law is something which floats ..... but when one draws distinction between the common law of
Australia and the common law of a State, for
instance, in a sense in our system, you can not
have a common law of a State because as this Court
is the ultimate court of appeal this Court will say
what is the common law for Australia as a federal
jurisdiction and for each State as a separate
jurisdiction and that common law will be the same.
BRENNAN J:	How do you compel the Supreme Court of New South Wales, under your theory, to entertain an action
for motor car negligence occurring outside New
South Wales?
MR BERKELEY:	One has to distinguish a number of situations,

Your Honour. The simple answer is, you cannot. I mean you could not 9ompel, the only reason you can

do it is that the Supreme Court of New South Wales

is a superior court of record with an unlimited

jurisdiction. You could not, for instance, compel

the magistrate's court at Sydney to entertain the
action because, obviously, if the court has not got

jurisdiction to entertain an action it has not got

jurisdiction, that is the end of it.

BRENNAN J: But the Supreme Court of New South Wales has not

perhaps I am wrong.

got jurisdiction to entertain a motor car action?

MR BERKELEY:  I am sorry, I wonder if Your Honour could say

that again?

BRENNAN J:  As I understand the New South Wales law, you

cannot bring an action for motor car negligence in

New South Wales.

MR BERKELEY:  I mean that must be statutory, Your Honour?

Miller(2) 120 10/4/91

BRENNAN J: Statutory, yes.

MR BERKELEY:  Yes. It is terribly interesting because, for

this reason, I do not think what I am going to say

is a red herring: supposing there was statutory

cause of action for motor car action in South

Australia, that was not a common law action it was

a statutory. You get statutory cause of action for

breach of employees duties and so on and indeed, in

some cases breach of the Road Traffic Act may be

more than evidence of negligence; it may even, in

fact, create a statutory cause of action. You

would then get a conflict between two State laws.

DAWSON J: Yes, but assume that there is a statute which

says the Supreme Court has no jurisdiction to

entertain motor car negligent cases.

MR BERKELEY:  Yes, but there is also a statute which says,

full faith and credit shall be in the laws of South

Australia and in the United States that has been construed as requiring the New South Wales court to accept the action in respect of the statutory

negligence in South Australia, and I was referring

to death claims actions.

DAWSON J: Well, why should it not compel the court of

petty sessions to accept the action?	You conceded
that it would not.

MR BERKELEY:  Yes, I can concede that, Your Honour, but

the - - -

DAWSON J: Well, why would it not compel the court of

petty sessions?

MR BERKELEY: For this reason, that the limitation upon the

supreme court is not the Supreme Court Act, but a

general State act, which in effect destroys the

cause of action.

DAWSON J:

So is the limitation on the court of

petty sessions jurisdiction.

MR BERKELEY:  No, Your Honour. The jurisdiction of

petty sessions is - they only have the jurisdiction

which the statute gives them.

DAWSON J: Well they have a statutory restriction and so is

the jurisdiction of the supreme court a statutory

jurisdiction, in a sense.

MR BERKELEY: Well, Your Honour, the answer may be this.

Where you get a section 118 question, what I said

was postulated upon the proposition that there was

a South Australian statute creating the cause of

action and a New South Wales statute saying those

Miller(2) 121 10/4/91

sort of actions shall not be brought in New South

Wales. Now, on that basis, you have a prima facie

conflict between the two State

statutes

DAWSON J:  But we are postulating another basis where there

is no jurisdiction in a court in New South Wales to

here the action. What do you say then?

MR BERKELEY:  Could I answer that in two stages,

Your Honour? I will want to have a look at what

Your Honour said to me, but the answer to

Your Honours question is the second stage of what I

want to put. If Your Honour starts with my

proposition, there are two statutes, one of which

says, the South Australian one says a cause of

action; the New South Wales one which says we do

not have such cause of action in New South Wales.

Then you have a conflict between two State statutes

and the section 118, if it is to be construed in

the same way as it has been in the United States,

says, that the New South Wales courts have to

entertain that action in respect of the South

Australian cause of action, and it would follow, if

that is correct, that is a jurisdiction which

arises under the Constitution and it would be a

federal jurisdiction, either imposed by section 76

in the Judiciary Act or it would be jurisdiction

directly imposed by section 118, as conceded by the

supreme court.

Now, if I take Your Honours example, where the

form of the statute says, the court shall not

entertain this action, rather than saying there is

no such cause of action, this Court would have to

consider whether this was not a way of getting around the constitutional command or guarantee

contained in section 118. Now, I have not thought

about that question, Your Honour, but -

BRENNAN J: Well, the jurisdiction under section 118 would

be federal jurisdiction/

MR BERKELEY:	Yes, Your Honour.
BRENNAN J:	How would that be vested in a State court otherwise than in under section 71?

MR BERKELEY: It would be, Your Honour. That is how it

would be, Your Honour, unless -

BRENNAN J:  How would it be vested in a State court,

otherwise than by section 71?

MR BERKELEY:  Unless it was directly vested by section 118

or, you see, the sort of statute that Your Honour

Mr Justice Dawson - - -

Miller(2) 122 10/4/91

DAWSON J:  So section 118 not only supplies the choice of

law, but vests the jurisdictions with which to

apply it.

MR BERKELEY:  Your Honour, the way section 118 is construed

is that it allows the cause of action which arises

in one State to be sued on in any of the other

States. Now, if you get a State - - -

DAWSON J:  So it vests jurisdiction?

MR BERKELEY: That may well be, Your Honour.

DAWSON J: Well that is what you are saying, is it not?

McHUGH J: That is contrary to Boilermakers, is it not? It

says that chapter III is the source of federal

jurisdiction.

MR BERKELEY: 

I understand that, Your Honour, but I am not

sure that one has to understand every case in the
context of the arguments which were raised and the
issues and, although I have not looked at it for a

long time, I would be surprised if section 118 was

put in the Boilermakers case.

McHUGH J: 

No, but the thought would not have occurred to

anybody.

MR BERKELEY:  No Your Honour, it always amazes me that there are still so many unanswered questions.

BRENNAN J: But you should not let Boilermakers hold you

back.

MR BERKELEY:  I am sorry I cannot do more to assist

Your Honour, but if section 118 in fact means what

the Supreme Court of the United States says it

means in relation to full faith and credit being given to statutes which create causes of action,

then it would follow, in my submission, although I

would be a real question about a State act which	am not in a position to elaborate it here, there
said you cannot sue on that cause of action in this State.

GAUDRON J: Well, something similar was dealt with in the

judgment of Justice Wilson and myself in

Breavington, which said that the the double

actionability aspect of Phillips v Eyre probably

would not survive in the event that because an

action was not actionable in the forum, that would

conflict with section 118 if its jurisdiction was

otherwise regularly invoked, but it did not go

further, I do not know that the United States

decisions go further than that.

Miller(2)	123	10/4/91
MR BERKELEY:	No.	In the small amount of reading I have

done about it, I do not think that this particular

point has ever arisen in the United States and,

indeed, the texts seem to show to show full faith

and credit really was not much discussed by the

Court before about the 1930s. I think that really

concludes what we want to say, and I will sit down,

if I may, before anybody else asks me anything else.

MASON CJ: Yes, Mr Solicitor for Tasmania.

MR BALE:  Yes. If it please the Court, if I might initially

hand up my outline.

MASON CJ:	Thank you.	Yes.
MR BALE:	May it please Your Honours.	Your Honours will see

that whilst I reach the same destination as that

reached by my learned friends who have preceded, I

do so by taking a rather different path, and for

that reason it is appropriate, I think, that I

should walk Your Honours, I hope briskly, down that

path.

Firstly, in relation to section 118, it is my

initial submission that that is not a choice of law
provision. That, we would submit, was, in effect,

decided by the majority in Breavington, and it is

so, in my submission, for three reasons. There is

nothing in its text, or in its context, or in its

constitutional history which lends support to the

proposition that section 118 ought to be treated as

a choice of law provision. So far as its text is

concerned, a choice of law rule would, in our

submission, at least identify a means of

establishing the law to be applied in any given

situation, if not identifying the law itself.

Section 118, in our submission, does neither.

It does not identify the means or the law but

rather, in terms, states an imperative in relation

to the chosen law. That is, that once the proper

law to be applied has been determined by the

application of appropriate choice of law rules,

then the forum court will give full faith and

credit to it. I refer there to a number of the

judgments in Breavington, which have been amply

read from and I do not propose, unless I am

directed to, to read those passages again, and I should also refer Your Honours to other passages

which have been cited - or two passages which were

cited in Anderson, again simply by way of

reference, rather than reading from them. One was

from the judgment of Chief Justice Barwick at
page 25, and the other from the judgment of

Justice Taylor, at page 37 of Anderson.

Miller(2) 124 10/4/91

In its constitutional context, secondly, it is

my submission that section 118 falls within the
chapter of the Constitution entitled The States,
but in which in every other provision deals
primarily with the relationship between the States
and the Commonwealth although, of course,

sections 106 through sections 108 do operate to

guarantee the continuing sovereignty of member

States in a federal context.

Section 118, we would submit, is but one

aspect of the recognition of that sovereignty
ensuring that where they apply the laws, public

acts and records and the judicial proceedings of

every State are accorded full faith and credit in a

forum. This context, in our submission, does not

any more than its test identify either specifically

or by any discernible implication when those laws,
public acts and records or judicial proceedings are
properly to apply. That is left to be done by an

application of choice of law rules.

Thirdly, from the historical viewpoint, I

would simply submit that there is nothing in the

constitutional debates and the primary
constitutional debates that addressed section 118

of the 1897 debates at pages 1005 to 1006. It is

my submission that there is nothing in those

constitutional debates which would suggest that it

was ever intended that section 118 would operate as

a choice of law rule.

Moving on then to the effect of section 118.

It is my submission that this is both evidentiary

and substantive. That it is evidentiary, or that

at least it was intended to be evidentiary, appears

from the constitutional debates to which I have

referred. It was also the view of Quick and Garran

at pages 961 to 963 of their classic work.

However, we would submit that it should not be

regarded as wholly evidentiary and has properly	been seen as having substantive effect as well.
For example, so as to operate to prevent one State from declining to give full faith and credit to the
judgment, for example, of another State on public
policy grounds. Merwin was authority for that
proposition, and I refer to a number of judgments there of Your Honour the Chief Justice at pages 81
to 83, and the earlier passages that I cited from
the judgments of Justices Brennan and Dawson and
also to a passage of Your Honour Justice Deane at
pages 129 to 131.

I submit that that last judgment properly, in

our respectful submission, takes the matter

further, further than the limitation of public

Miller(2) 125 10/4/91

policy grounds in that it involves that a law once made applicable through operation of the choice of law rules is to be given the same operation and

force in the forum as it would have been given in the loci delicti. And I submit that the words of

Your Honour Justice Deane in that context are

helpful.

So far as the third point, in my submission,

is concerned, I hope I need not spend too much time

on it because I would submit that if anything is

clear from Breavington it is that in a conflict

situation in Australia the choice of law rule in relation to liability in tort should be that the

lex loci delicti will apply. Although it is not

relevant for the purposes of any decision to which

Your Honours will come in this case, we would say

that it is to apply with the exception that another

law is shown to have a closer and more real

connection.

We would submit that authority for that is to

be found in Chaplin v Boys in the passage to which

reference is made, and also in the judgments in

Breavington to which are there referred.

In my submission, that is essentially, in

fact, the choice of law rule as was established in

Phillips v Eyre. It is interesting that

Phillips v Eyre has been, for a long time, the

source of considerable debate, but if I may simply

draw Your Honours briefly to it. The passage to

which I particularly refer is to be found at

page 28 of the judgment. That is in the judgment

of Mr Justice Willes, at about 28 point 3 where he

says:

A right of action, whether it arise from

contract governed by the law of the place or

wrong, is equally the creature of the law of

the place and subordinate thereto.	The terms
of the contract or the character of the

subject-matter may shew that the parties
intended their bargain to be governed by some

other law; but, prima facie, it falls under

the law of the place where it was made. And

in like manner the civil liability arising out

of a wrong derives its birth from the law of

the place, and its character is determined by

that law. Therefore, an act committed abroad,

if valid and unquestionable by the law of the

place, cannot, so far as civil liability is

concerned, be drawn in question elsewhere

unless by force of some distinct exceptional

legislation, superadding a liability other

than and besides that incident to the act

itself. In this respect no sound distinction

Miller(2) 126 10/4/91

can be suggested between the civil liability

in respect of a contract governed by the law

of the place and a wrong.

And then His Honour goes on to deal in the terms

that have been a source of so much debate with

what, in my submission, is the jurisdictional test

and not the choice of law rule. And thus, I say in

the outline, to the extent that it is still

relevant, one can find the basis for the

proposition which the majority has adopted in

Breavington in Phillips v Eyre.

Support is also to be found in the passages

which are cited there and could I also add a

reference which does not appear there to the work
by Nygh on Conflicts of Laws in Australia, 4th

Edition, at page 271.

Now, it will be seen from the passage that I

just read from Phillips v Eyre that the

qualification expressed there to the choice of law

rule was in terms of "distinct exceptional

legislation superadding a liability". It would be

our submission that that would be seen today as too

narrow and therefore an inappropriate

qualification. One can see that if one were to

attempt to apply it to the example advanced by

Professor Pryles in his article in 1989, 63 ALJ - I

am not going to read from it, Your Honours - 158 at

page 175. I just advance it as a useful reference.

I would likewise submit, with respect, that if

the qualification expressed by Your Honour

Justice Deane in Breavington at pages 135 to 137,

in terms of predominant territorial nexus, is

intended to be narrower or, indeed, to differ from

the qualification in the terms expressed by Your is undesirably and unnecessarily narrower. Prima

facie, in our submission, the territorial nexus

would usually be the predominant and very often,

indeed, the only factor upon which departure from

the basic rule would be founded, applying the

formulation of Your Honour the Chief Justice. But

if other considerations than territoriality justify

another law being applied on the basis that it

gives a closer and more real connection then, in

our submission, that should not be excluded.

It would be our submission that to allow of no

qualification to the rule might be unnecessarily

and unjustly restrictive and that the desirability

of uniformity which, in one sense, would be

achieved by not admitting of any qualification, is

properly overridden by the importance of ensuring

that, as far as possible, that justice is done

'

Miller(2) 127 10/4/91

between the parties and if, and under the law,

other than that of the locus, is found to have a

more real and closer connection, for whatever

reason, than the lex loci, then it is our

submission that it ought to be applied. That view,

of course, is supported by the several judgments in

Byrnes v Groote Eylandt, especially that of

President Kirby. Again I do not stay to read from those passages as they have already been exhaustively referred to.

Perhaps I should add this, very briefly, in

relation to the fourth point in our outline.

Your Honour Justice Deane in Breavington, defined

full faith and credit, at pages 129 to 130, in

terms which would require the forum court to accept

and act upon the lex loci to the extent that that

was a valid law. In our respectful submission,

that is a wholly appropriate formulation and it

involves this that, so far as is presently

relevant, section 118 requires not only that a

public act of a State, the law of which applies

through application of the appropriate choice of

law rule, be accepted and acted upon from the

evidentiary viewpoint, but also that it be given
the same force and effect that it would have been

given in the locus, public policy and any other

considerations not withstanding. Now that is all I

would have to say in relation, Your Honour, to

section 118, and if I may turn then to the

limitation issue.

It is our submission that the right of action

and the availability of the damages remedy in tort

are essentially combined. If the remedy is not

available the right simply may as well not exist
because from any practical viewpoint it is
worthless. That was essentially, in our
submission, recognized by Chief Justice Dixon and

Williams in Maxwell v Murphy in the passages to

which I have referred. In my submission, it was

recognized by Your Honour the Chief Justice in

Breavington, again in the passage to which I have

referred, and was clearly recognized by

President Kirby in Byrnes v Groote Eylandt on

page 23D, and from 23F through to page 24A.

McHUGH J: Well, if you had to start again, there might be a

great deal to be said for treating limitations as

substantive but that is not the way that the law is

interpreted. I mean, you cannot treat the law

reports as though they contained blank pages, as

Mr Justice Gibbs once said.

MR BALE: Indeed not, Your Honour, but, in my submission,

there are no blank pages involved in the

proposition that can be adopted by this Court that

Miller(2) 128 10/4/91

one should treat for the purposes of choice of law

rules, and that is all I need, with respect,

concern myself with - with respect, it is all this

Court need concern itself with - may not, in

relation to the application of choice of law
rules - I am sorry, let me start again. That is

not to say that this Court cannot, in relation to

the application to the choice of law rules, say

that a limitation provision is to be applied as

part of the lex loci.

McHUGH J: Well, what about when the tort is committed

outside Australia?	Do you have a distinction then,
or do you - - -?

MR BALE: Again, although that is not necessary for a

decision in this case, I would submit there is no

need to make a distinction, Your Honour, and for

the reasons that I am about to develop I hope that

Your Honours might be persuaded that that

proposition is valid.

May I just draw attention to two references

which are not included in the outline. I hope that

Your Honours would find them helpful and I simply

make the references without taking time to read

from them. The first is Morris.

DEANE J:  Where do we write this in, Mr Solicitor, after

Maxwell v Murphy?

MR BALE:  Yes, thank you, Your Honour. The first is

Morris's work on the Conflict of Laws, the third

edition, at page 454, at about point 5. That is in

a passage in which the learned author analyses,

critically, the proposition, in relation to foreign

statutes of limitation, that they should be

characterized as procedural only and, in similar

vein, in Sykes and Pryles' work, Australian Private

International Law, I believe it is the only

edition, at page 130.

McHUGH J:  No, there are two editions of Sykes.

MR BALE: If there is a second edition, I am sorry, I have

not had access to it. The reference that I have

given then is in the first edition.

Your Honours, in Breavington, a statutory limitation on the type of damage which was

recoverable was held to be part of the law of the

Northern Territory which is the lex loci delicti,

was applied by the appropriate conflict of law

rule. In our submission, it is logically absurd to

say that a limitation provision which deprives a

plaintiff in totality of his right to pursue an

action is not a substantive provision where it is

Miller(2) 129 10/4/91

held substantive, or a provision is held
substantive which only deprives him of part of his

otherwise entitlement to damages.

In reality, in our submission, a denial of the

right to pursue damages at all is every bit as

substantive as a limitation on the type of damages

to be recovered and if, therefore, the measure of

damages is to be regarded as part of the

substantive law so also should the right to pursue

damages, so that a limitation of the type presently

under consideration should be treated as

substantive, at least for the purposes of the

application of choice of law rules.

As those of Your Honours who formed the Court

in Rodway, 169 CLR 515, following Breavington, said

at page 518:

But the difference between substantive law and

procedure is often difficult to draw and

statutes which are commonly classified as

procedural - statutes of limitation, for

example - may operate in such a way as to

affect existing rights or obligations. When

they operate in that way they are not merely
procedural and they fall within the

presumption against retrospective operation.

Now, of course, Your Honours there were dealing

with a quite different consideration. You were

dealing with the consideration of retrospectivity, but it is quite clear, in our submission, that the sorts of limitation provisions with which we are

currently dealing operate to affect rights. They

take away the right to pursue a cause of action in

given circumstances and it would be our submission

that to the extent that the Pederson v Young line

of cases would otherwise preclude this Court from

holding that these sorts of provisions are

substantive for the purposes of application of

choice of law rules, those cases should no longer

be followed.

There are six reasons which I have tried to bring together for submitting that that ought to be

the law. They are these: firstly, uniformity. If it is desirable that there be uniformity in the law to be applied in respect of the occurrence of an

event wherever the action to which the event gives

rise is taken, then it is necessary for the law

chosen to control the action to include its

limitation provisions. That sort of uniformity is

impossible to achieve consistently if the relevant

limitation periods established by the lex loci are

not to be applied.

Miller(2) 130 10/4/91

One can take a very simple example:  you have

two passengers in the same motor vehicle injured in

a motor car accident in South Australia. One is a

resident of South Australia and is treated there

and sues there. The other is a resident of New

South Wales and is treated there and sues there.

But the limitation proceedings are different, so

that the passenger who sues in South Australia is
deprived, not his cause of action, but its value to

him. Whereas the passenger who sues in New South

Wales gets full value from his cause of action.

That sort of lack of uniformity in today's

Australia, in our submission, is to be avoided.

McHUGH J: But you can get lack of uniformity in all sorts

of procedural rules: standard of proof; quantum of
proof; discovery, all ultimately affecting the

decision. Supposing in one of those States you had

to prove negligence beyond reasonable doubt?	One
plaintiff may recover, the other not.

MR BALE: Certainly you do, Your Honour.

McHUGH J:  Why select one procedural area, namely, statutes

of limitations?

MR BALE:  Because we, with respect, say it is not

procedural. We say a provision which goes to the

usefulness of the cause of action as a cause of

action which destroys its usefulness - - -

McHUGH J:  I do not know about other States, but the New

South Wales Limitation Act, if I recollect, draws a

distinction between extinguishing causes of action

and barring them.

MR BALE:	Yes.
McHUGH J:	And I would be surprised if other States'

statutes of limitation - - -

MR BALE:  I think the New South Wales statute is still

unique, Your Honour. It might not remain unique

for very long, depending on the decision of the

Court in this case, and that is something that I

was going to come to in a moment, but let me come

to it now.

I would submit that it is highly undesirable

that we should continue to have legislative

fictions, or that they should be encouraged. One

can very easily, in relation to limitation periods,

create what is no more, in our submission, than a

legislative fiction, and that is you can have a

cause of action which is simply barred - and

Your Honour Justice McHugh would say, "Well, that

is a simple procedural provision" - and you could

Miller(2) 131 10/4/91

at the same time have instead a piece of

legislation which said "the cause of action is

extinguished, substantive, but it may be revived in

these circumstances, substantive".

That sort of nonsense, in my submission, should not be encouraged. If we are going to be

honest and realistic, in each of those cases, all

we have is a provision that is saying, "A cause of

action effectively cannot be made use of; cannot

provide a basis for the recovery of damages". The

legislatures choose to say it in a different way

and by saying it in a different way, it is argued

that they may produce a substantially different

result and yet essentially by doing the same thing.

In our submission, that sort of thing is avoided by

treating them - the necessity for such provisions

is avoided by treating for choice of law purposes,

as substantive, these sorts of limitation

provisions.

That was to be my sixth point. I will take it

as my second, may it please Your Honour. The now

third point is the consistency point. The fact,

dare I say the accident, that a particular court

has jurisdiction to entertain a matter should not
logically involve, as a consequence, that a

plaintiff in that jurisdiction has different rights

in relation to the enforcement of a cause of action

to those of a plaintiff in the locus. It is

absurd, in our submission, that the lex loci should
apply as to the cause of action, not to the law

which governs the right to sue upon that cause. Fourthly, as a discouragement to forum

shopping: it is simply not possible to effectively

prevent forum shopping by the application of the lex loci, unless the lex loci limitation periods are included as part of that law.

Next, predictability in the operation of the

law. In our submission it is important that a

plaintiff can readily identify the law of the place

in which his cause of action arises; is controlling

all the matters which affect that cause of action

and give him a right to utilize that cause of

action. And it is equally important, particularly

when one recognizes the costs of insurance and

insurance premiums and the basis upon which they are determined, that a defendant be able to rely

upon the lex loci as the law which is going to

determine all aspects of his liability, by which I

mean, not only the creation of the liability, but

also its duration.

McHUGH J: That is all right in some cases but supposing you

had a case where the plaintiff and defendant are

Miller(2) 132 10/4/91

residents in New South Wales; they are temporarily

in South Australia; they are driving an insured

New South Wales vehicle; they both return to New

South Wales. Why should they have the South

Australian Limitation Act governing their

relationship?

MR BALE: Well, that is a question of the choice of the

proper law, I would respectfully submit,

Your Honour. It is for the forum court to

determine what is the proper law to apply if it has
determined - given the qualifications which we

submit might apply and ought to apply in relation

to the selection of the lex loci. But given that

South Australia is determined to be the proper law to apply then, in my submission, it should be all

of the law relevant to the maintenance and

enforceability of the cause of action.

There is no reason, in my submission, simply because the individuals concerned happen to live in

New South Wales or Victoria or Tasmania or anywhere

else, that their conduct in South Australia, both,

as I say, as to the creation by it of liability and
the duration during which that liability might be

enforced - no basis at all why it should be

enforced other than by the law of the place in

which it occurred.

The sixth point brought me back to section 118

and it was this, that if section 118 requires that

there be uniformity of State law to determine the

legal consequences attaching to a set of facts

occurring in a State - and that essentially was

what I understood Your Honour Justice Deane and

Your Honour Justice Gaudron with Justice Wilson to

be saying should be the case, in Breavington - then

the only way in which that requirement can be

satisfied is to include within the lex fori any

relevant limitation periods which that law

establishes.

Your Honour Justice Deane raised to my learned

friend, Mr Ellicott, this question, I think - I

hope I noted the substance of it correctly - "What

is the effect of a lex loci provision which says

that a limitation period did not extinguish a cause

of action and did not apply to actions taken in
another State? If that were the South Australian

provision what would the position be in New South

Wales?"

My response to that would be, there is no

conflict because when the New South Wales law says

that the lex loci is to apply, one goes to the lex

loci, one sees within the lex loci that specific

provision which says that the cause of action in

Miller(2) 133 10/4/91

New South Wales is still available, or outside

South Australia is still available and so, through

application of the lex loci you still get to the situation that the action would be maintainable,

consistently with the lex loci in New South Wales.

Those are my submissions, may it please the Court.

MASON CJ: Yes, thank you, Mr Solicitor. Mr Solicitor for

South Australia.

MR DOYLE:  If the Court pleases, we seem to have a very

large tail here wagging a pretty small dog, because

the small dog is in the end just the question, are

time limits of the law of the place, if I can use

that term, to be applied and of course, the big

tail is, what is the appropriate approach to choice of law and then the even bigger tail is the meaning of section 118. However, the difficulty is that it

is not completely satisfactory to approach the case

on what I have called the narrow basis, simply

looking at it as a question of the application of

time limits because, of course, ones approach to

that tends to be influenced by ones approach to

those wider questions.

Your Honours, I want to put some short

submissions on each of the three points, namely the
narrow issue, putting aside the broader questions

of the approach to time limits, and then some quite

short submissions on what is the appropriate choice

of law rule, and then some shortish submissions on

section 118.

Can I just say at the outset, in relation to section 118, in our submissions it is given a more

modest role than given by Mr Ellicott. We would

submit its function is to deal with what I will

call ttconflicting statutestt, situations where

statutes of more than one jurisdiction both claim to apply to the same situation; or alternatively,

a situation in which a statute not of the place

where the events occurred purports to apply, even

though the events seem, at first sight, to be

wholly governed by the law of the place where they

occurred. In our submission, that is the situation

where section 118 is needed. As for the rest, the

fact that we have uniform common law and uniform

choice of law rules means that there is no need for

section 118 to play a further role.

Your Honours, coming then to the narrow

question, in our submission, it does appear that

both sections 36 of the Limitation of Actions Act

and section 82 of the Workers Compensation Act

would appear to be relevant. In our submission, it

is clear from the South Australian Workers

Miller(2) 134 10/4/91

Compensation Act that it applies on the basis of an

injury within the State. Nothing more is required.

Just so it is not overlooked, Your Honours,

the position in South Australia appears to be at

the moment that both time limits are applied

cumulatively. In our outline we have referred to a

case of Karasaridis v Kastoria, (1984) 37 SASR 345.

That was a case, Your Honours, dealing with a

question of amending a statement of claim outside
the limitation period, and the majority of the

court resolved the matter under the Supreme Court

Rules. The Chief Justice, who was in dissent on

that issue, referred to the question of the

cumulative or otherwise application of the time

limits, and could I just ask Your Honours to look

at page 353 where, having referred to the two

sections, he said:

Where a time limit for the bringing of an

action is prescribed by a special Act, the
question whether the effect of the special Act
is to exclude the time limit in the Limitation

of Actions Act or, on the contrary, to operate

in tandem with it, is a matter of

construction. In principle I see no objection

to the concurrent operation of two time limits

and no reason why the bringing of an action

should not be subject to both.

I will not read on, but he goes on to develop

that point a little on that page, and the following

page. Justice Zelling did not find it necessary to

deal with the point at all. Justice Jacobs dealt

with the point at the very end of his judgment, on

page 363, and there, having agreed with

Justice Zelling that the matter could be disposed of under the Supreme Court Rules, he said, in the

final paragraph:

it becomes strictly unnecessary to consider

Question 4 ..... It may be useful to say,

however, that I agree with the Chief Justice
that where the time limit imposed under the

special Act is the same as the time limit

imposed under the Limitation of Actions Act,
then unless the context of the special Act

would require the Court to hold otherwise, the

two identical time limits should be subject to
the same and qualified power to extend in

s. 48(2).

Now, it is very compressed, but one gets the

impression that he is accepting that both time

limits operate, and he is saying, "Well that being
the case, I now look at the situation as to

extension of time". There is no other decision,

Miller(2) 135 10/4/91

Your Honours, in South Australia, of which I am

aware, dealing with this point, but that decision

does suggest that they operate cumulatively.

DEANE J:  Is His Honour saying that you can extend the

compensation time limit under the provision of the

Limitation Act?

MR DOYLE:	Yes, that is the other point I want to just bring out of these judgments. If you can keep them
handy, Your Honours, and could Your Honours also
look at section 48 of the Limitation of Actions Act
at the same time? Your Honours will see that
section 48(1) is quite general in its terms:

where an Act -

et cetera -

a court may extend the time so prescribed.

DEANE J: That answers my query. I had forgotten - - -

MR DOYLE:  Yes, so the way it has been interpreted in

South Australia, Your Honours, is that you would

seek your extension of time in respect of the time
limit under the Workers Compensation Act under

section 48(1); the extension of time you seek in

respect of the time limit under section 36 of the
Limitation of Actions Act but, I suppose, one

would say the source of the power is 48(1), but the

exercise of the power to do that is controlled by

section 48(3)(b), and that control applies only if

you are extending the time under section 36, and

what the Chief Justice said was, well, that seemed

to him to be intended, and so that was why he

regarded the restrictions under section 48(3)(b) as

really the decisive restrictions. It was easier to

get an extension of time limit under the Workers

Compensation Act than it was under the Limitation

of Actions Act.

TOOHEY J: Given the time limit in each case, Mr Solicitor,

is there any relevant difference between the

operation of the two limitation provisions, other

than the difference that might arise from

section 48(3)(b)?

MR DOYLE:  You mean relevant in this particular case,

Your Honour?

TOOHEY J: Yes.

MR DOYLE:  Not so far as I am aware. One of the oddities is

that, for reason of detail, the time limit under
the Workers Compensation Act may, in fact in some

cases, be a little longer. It will still be three

Miller(2) 136 10/4/91

years but the time may start to run a little later,

but there is nothing I am aware of in this case

that suggests that would make any difference here.

That particular fact is also adverted to in the

judgment of the Chief Justice on the page after the

page I read from.

So, depending on what Your Honours do in

relation to the application to amend, Your Honours
will need to bear in mind that, at least in South

Australia, the approach is that both sections

operate cumulatively.

We would also, Your Honours, accept that on

the traditional approach to time limits both

sections do look procedural if one is going to use

that classification because in each case the two
time limits apply to a separately existing and

pre-existing cause of action. The cause of action

asserted here, in our submission, is a common law

action in negligence and it does not owe its origin

to either statute, nor is it preserved by either

statute. The Workers Compensation Act, as we read

it, simply imposes a time limit on the exercise of

it.

Now, each of those sections merely imposes a

time restriction on bringing the cause of action

and it also may be pertinent to bear in mind that

each of those time limits is capable of indefinite

extension. One can never say, in theory, that it

is impossible to get either time limit extended.

In theory, the power exists in perpetuity and as to

the significance of that, without reading from it,

could I refer Your Honours to the case referred to in paragraph 5 of the outline, Australian Iron and Steel, and in the passage there referred to,

although on this point it is adverse to me, the

fact that time limits were capable of indefinite

extension was treated as all the more clearly

making them procedural.

Could I come then to this question, what I

have called the narrow question, should the time

limits of the law of the place be applied when one

is engaged in a choice of law exercise?

DEANE J:  Mr Solicitor, I do not want to take time but if,

as you say, the time limit under the

Compensation Act can be longer, does not the

reasoning of Chief Justice King on page 353 lead to

a different conclusion?

MR DOYLE: Well, Your Honour, with respect, that had

occurred to me. His Honour adverted to the

specific point at page 354 and just past the

Miller(2) 137 10/4/91

mid-point of the page he said, and it begins over

to the right hand side:

I do not think that the consideration that

under certain circumstances the limitation

period under the Limitation of Actions Act

might expire before the period under the

Workers Compensation Act, or the

consideration, also adverted to by

Mr von Doussa, that for a time, but not now,

the effect of infancy on the two limitation

periods differed, is sufficient to give rise

to an implication in the Workers Compensation

Act excluding the limitation of time -

et cetera. So that was his answer, Your Honour.

So, I accept, Your Honours, that the balance

of authority supports the view that at the choice

of law level one does not pick up time limits.	In
approaching this matter, I would first of all

submit that the Court should put aside cases such

as Maxwell v Murphy and cases in the area where the

real issue is retrospective operation of changes in

the time limits. In my submission, it is quite

conceivable that in that area one might categorize

them as procedural and treat them in one way but

that in the area of choice of law one may treat

them differently.

In our submission, the decision in Pedersen is

the real obstacle here and it is a decision which I

have to submit should not be followed. I am not

going to read from it, Your Honours, I think

virtually all of it has been read to the Court.

Could I just refer the Court to three passages

which, in particular, touch on the choice of law

situation? Justice Kitto at 166 point 2;

Justice Menzies at 167 point 8 and Justice Windeyer

at 170 point 2. Your Honours will recall that the

central issue there was one under section 79 but in

those passages the choice of law position was

adverted to.

Now, what is the essence of the reasoning that

has lead to the present position? It seems to be

this, Your Honours, that it is said, "Well, first

of all time limits affect procedure, no substance."

And then it is said, when you analyse it and boil

it all down, "Therefore such provisions must be

construed as applicable only to the commencement of
actions in courts of the legislating State", and
presumably there is really a silent third step in
that reasoning, "Because procedure is the province

of the forum."

Miller(2) 138 10/4/91

So, you first of all identify them as

procedural and then you say, "Well, because
procedure is the province of the forum, surely the

legislature is only speaking to its own courts."

Now, it is a logical enough course of reasoning, in

our respectful submission, but it is a rather

unsatisfactory one, we would also submit.

In our respectful submission, if one stands

back for a moment, it is surely the more natural

approach to say that the South Australian time

limits are simply intended to apply to any cause of

action which arises under South Australian law.

Why should one even start by asking the question or

by making the statement, "They are procedural",

when one looks at the statute and says, "What is

this statute intended to do?" In our respectful

submission, surely, what it is intended to do is

apply time limits to actions which arise under or

owe their life to South Australian law.

DAWSON J: Is that right? What is the reason behind time

limits?

MR DOYLE:  Well Your Honour, in our respectful submission,

the reason is not, as it were, a message to the

courts. It is equally, if I could put it this way,

a message to parties who operate under the law and

the difficulty with Pedersen is it categorizes the

law here really as purely adjectival and more or

less speaking just to the courts but, in our

submission, parties also live under time limits and

operate under them and there is no particular

reason to approach the issue from such a narrow

footing and so, I do not know if this satisfies

Your Honour, I do not attempt an encyclopaedic

statement of the reasons for time limits. I just make the general proposition that time limits are

important for the people who live under them as

well.

DAWSON J:  No doubt they are important, but why are they

imposed?

MR DOYLE: Well, one would think for a variety of reasons,

perhaps in part to protect defendants against stale

- or to put the defendant in a position where he

can say, well I am no longer at risk in respect of

that suit; in part because it is common knowledge

that the older a case is, the harder it is to

dispose of it satisfactorily. In some contexts the

prime motive may be that you are operating in an

area where, let us say, insurance is important and

it is important that premiums be able to be fixed

and that claims be, as it were, identified and

disposed of within a confined period of time.

Miller(2) 139 10/4/91

DAWSON J: It is considerations such as the latter that

might differ from State to State, may they not?

MR DOYLE:  Well of course they might, Your Honour, but, and

although this leads me on to another aspect of the

submission, it is convenient to deal with it. In

my submission, the question Your Honour puts to me

there really assumes that - well, if I can take

New South Wales as the other posited State -

New South Wales as the other State has an equal and perhaps a prior interest in the time limits to be

applied to a cause of action arising under

South Australian law. In the abstract I would

acknowledge that New South Wales might have some

interest in it, because it perhaps does not want

its courts trying to handle very stale claims

because they may take up more time of the court
but, in my respectful submission, when one looks at

it overall, it would seem that the rationale of

them is what I have put, to govern causes of action

arising under the law of legislature and that it is also that legislature and that law which really has

the main interest in the time for which such a

cause of action should be allowed to be asserted.

So I do not, with respect, entirely deny any

force to Your Honour's observation, but in my

submission when one thinks about it logically and

if one approaches it that way and says who has got

the real interest in what should be the time limit,

it is the law of the State under which the cause of

action arises, because that again is the law to

which the parties will be looking when they are

thinking about their position and that is the law

under which they are operating.

TOOHEY J:	I just have some difficulty with this notion of the law under which the cause of action arises. Say, for instance, two residents of New South Wales
travel to South Australia.  One is driving a
vehicle in which the other is a passenger. There
is an accident.  One is injured. The parties
return to New South Wales.  In what sense does the
cause of action arise under the law of South
Australia, assuming it to be a common law action?

MR DOYLE: In my submission, in this sense, Your Honour: New South Wales common law, as I understand it,

says that when you are injured in another State in

a way that is a tort in that State, you have a

cause of action. Now, if you are a Phillips v

Eyre man that is not a complete statement of the

position, but to answer the question I will leave

it there.

So, what New South Wales law does is give you

a right of action, but it refers you then to South

Miller(2) 140 10/4/91

Australia because it is a right of action which is

inextricably linked with the legal position in

South Australia.

TOOHEY J: That may be another question, but confining it to

the notion of the cause of action arising

somewhere.

MR DOYLE:  In my submission, when one gets to choice of law,

when one refers to the other body of law, if we

posit Your Honour's situation and the action is in

New South Wales, my submission is that when you

then refer to South Australian law to see if what

happened is tortious, again why would you refer

only to one part of the law governing the cause of

action?	You are saying, "What is the position as
to these events under South Australian law?"	On

the accepted or traditional approach, you put aside

the South Australian time limits on artificial

reasoning, we contend, proceeding on a prior

categorization of them as procedural. We say, "Put

that aside and then when you refer to South

Australian law what would be more natural than to

say you would include in the reference the South

Australian time limits?" because those South

Australian time limits are in inextricably mixed up

with the cause of action because they are intended

to govern causes of action arising under South

Australian law and to ignore them is to ignore, as

it were, a vital part of what you are doing looking

at the law in South Australia in its application to

the events.

DEANE J:  Mr Solicitor, to a considerable extent Pedersen v

Young turned on questions of construction. If you

read Justice Windeyer's judgment that seems to be

clear, at least so far as that is concerned.

MR DOYLE:  Yes.

DEANE J: That being so, if your submissions were accepted,

does a question of prospective overruling arise,

because there could well be many cases in which
parties have acted on the basis of Pedersen v

Young? I am not suggesting to you that it is so,

but it is something that perhaps should not just be

left without mention.

MR DOYLE: No, I am grateful to Your Honour. Well, I admit

I had not thought about it, but two points occur to

me. If we are thinking of people who have taken

the advantage of Petersen v Young and are in the process of escaping time limits, then, to put it

bluntly, in my submission, the Court should not

worry too much about them. If they find that, in

truth, they are caught by them, so be it.	I am
trying to think whether there is a converse

Miller(2) 141 10/4/91

situation where, in terms of my submissions, it

would be said a party has rightly relied on it and

he would now suffer - - -

DEANE J: Well, take an extreme case where somebody went

along to his solicitor and said, "Is there a time

limit?", and the solicitor said, "No, we do not

have to worry because the appropriate court here is

the High Court or court of the State".

MR DOYLE:  Yes, I agree in that situation there is a risk of

injustice to a party who has acted on the law as it

is. Apart from obvious trite comments, I cannot

think at the moment, Your Honour, of a good answer

to that. It is a problem which I acknowledge the

Court would have to face but, in my submission,

what we do have at the moment has been put by

Mr Ellicott, is really a very strange situation

that by simply selecting your forum it appears you

can escape time limits which are very important

under the law of the place where things happened.

McHUGH J: But there are all sorts of procedural rules. If

you take defamation; you cannot get a jury in a

defamation action in South Australia; if you sue in

New South Wales, you can.

MR DOYLE:  Yes, I accept that, Your Honour, and Your Honour

has already put that to other counsel. In my

submission, no amount of debate can remove the

distinction between substance and procedure.

Perhaps I can put it this way that, in our submission, the procedural area should be confined

to the minimum possible and there will be some
areas where you simply cannot do anything other

than apply the procedures of the forum, but in my

submission a sound approach to the matter is to

say, "The content of procedure in the choice of law

area should be kept as small as possible." and if

you come to it from that point of view, it perhaps

becomes a bit easier to identify the situations

where you will have to accept the procedure of the
forum.

McHUGH J:  What about the question as to whether it is

not - it is all a question of what the legislature

of the place intended with its statute. Did it

intend it only to apply to acts in that State, or did it intend, in effect, to extinguish the cause of action?

MR DOYLE:	My answer to that lies in what I put earlier that, in my submission, the more natural reading of
time limits is that they are intended to apply to
causes of action governed by the law of the State
and therefore it follows, it does not matter where
the cause of action comes into question, whether it

Miller(2) 142 10/4/91

comes into question immediately in a New South

Wales court through the New South Wales common law

referring to the South Australian law, or

immediately in a South Australian court. The point

is, the time limit is intended to govern a cause of

action where one refers to South Australian law as

the governing law.

MCHUGH J:  How do you fit in a provision like 48 in that

scheme?

MR DOYLE:  The only doubt, Your Honour, and it is a question

which I have thought about but do not have an

answer is, "Can the New South Wales court itself

extend the time or would you have to go to South

Australia?".

McHUGH J:	Yes.
MR DOYLE:	And that is a separate and, I acknowledge,

difficult question but, in my submission, again

perhaps to use the analogy I did at the start, we

should not let the tail wag the dog. If you do

have to go to South Australia to get your extension

of time and meanwhile hold the action in New South

Wales, well so be it, but I accept that problem

does arise.

So, Your Honours, notwithstanding the length of time for which Pederson v Young has stood, we

would respectfully submit that in its approach to

choice of law issues it is too narrow and that
really having started from that premise, saying

time limits of procedural, one can virtually see

what is corning thereafter because we all know that
procedure is for the law of the forum and, in our
submission, it makes sense to say, "Why should the

whole debate start from that rather narrow

premise", particularly when we all know that while

the distinction is an obvious one, its application

is always giving rise to difficulty.

I remember Your Honour Justice McHugh,

yesterday when this topic was being dealt with

said, "Why should the New South Wales law give the

South Australian time limit an operation which",

and I think I got this word perfect, "the enacting

legislature did not intend it to have?". In our

respectful submission, putting the question that

way really assumes the answer because, when you put

it that way, you have assumed that it was only

intended to apply to South Australian actions and

then everything else follows.

On this point, Your Honour Justice Brennan

also put to Mr Ellicott this point, well what if

the New South Wales Parliament said the

Miller(2) 143 10/4/91

Supreme Court of New South Wales should not

entertain an action for extraterritorial torts

unless they are brought within so many years, and

one assumes a shorter time limit than the law of

the place allowed. Now that is a problem, in our

respectful submission, which, if it can be

resolved, can only be resolved by an application of

section 118. In other words, that is a separate

issue, in our submission, and I will come back to

that, but if you come to the conclusion that the

local Parliament, as a matter of construction, has

laid down a rule which purports to bind its forum

courts in the time limits that they apply to torts

arising elsewhere, well then you have got a full

faith and credit problem.

Your Honours, as to section 79 of the

Judiciary Act, we submit that the same approach provides the answer. If the court is sitting in South Australia and section 79 of the Judiciary Act is relevant then, because that section commands the court to apply the laws applicable, or to apply the law of the place where it is sitting in all cases

to which they are applicable. Now if the court is

sitting in South Australia, in our submission, if

it is a South Australian cause of action, South

Australian time limits are applicable, because they

govern South Australian attributible causes of

action and there is no difficulty. If the court

happens to be sitting in New South Wales and

section 79 applies then, in our submission, the

approach is that, when section 79 says to the

New South Wales court, apply New South Wales law,

that includes the New South Wales choice of law

rules and under the submissions I put earlier, once

again you refer to South Australian law, including
its time limits and so we submit that that approach

also works under section 79.

So, in summary, on that aspect of the matter,

we submit that that approach gives a much more

satisfactory result. It makes common sense - if I

can put myself in that school of

jurisprudentialists just for the moment - it

discourages forum shopping and, in my submission, it gives a proper role to the law of the place of the events.

Could I go then to the question of the

appropriate choice of law rule and could I just
repeat that, in our submission, the way choice of
law rules operate is that it is the common law of

New South Wales which gives a right of action and

it does so, relevantly, when the law of the place
where the event has occurred gives a cause of

action to the person injured. In that situation,

Miller(2) 144 10/4/91

the law of the place is being applied mediately not

immediately.

Now, in our respectful submission, if one were

to adopt the approach to choice of law which was

adopted by the Chief Justice in Breavington the

case for what I have just been putting is stronger

and I say that for this reason, that if the first

limb of Phillips v Eyre goes and if the law of the
forum ceases to play any significant role in the

resolution of the matter as it does under the

Chief Justice's approach then, in our submission,

it seems all the more appropriate to include,

putting it colloquially, as much as possible of the

law of the place when you do refer to it.

In our submission, the oddity of including the

time limits of the forum is all the more evident

when, if one does away with the first limb of

Phillips v Eyre and refers only to the law of the

place because under that approach the law of the
place - that is the Chief Justice's approach - has

the predominant role and he referred to it as the

"governing law" and, in my submission, it would be

odd if it was the governing law but it is not

relevant for that purpose. That approach also

assists to get a uniform result on a given set of

facts and, in our submission, that approach, that

is including the local time limits, is also more

likely to fit in with the expectation of the

parties, although, with respect, Your Honour the

Chief Justice, it might be open to doubt to what

extent really, in a real sense, people have

expectations as to outcomes in these situations.

If Your Honour is really referring there to a kind

of reasonable man then we would certainly endorse

that approach. Whether, in truth, Australian

citizens moving from place to place, by and large,

have a particular view as to what is likely to be

the legal outcome in a conflict situation, we would

regard as rather more doubtful.

So, we submit, if that is the approach to

choice of law, it strengthens the submissions which

we have been putting and, to the extent it is

relevant, we do, at the choice of law level,

support the approach taken by Your Honour

the Chief Justice, in brief, for very similar

reasons, that it is more likely to give a single

result on a given set of facts, more likely to fit

in with what are the expectations of what I will

call the reasonable man and, also - and now

addressing really the point Your Honour Justice

Brennan made in Breavington at page 111 about the

position of the States in a federation, in our

respectful submission, a State in this particular

federation has a limited and one would say, query,

Miller(2) 145 10/4/91

any interest, in applying its law simply because it

happens to be the forum to events which occur

wholly in another State.

Now, Your Honour Justice Brennan has expressed a contrary point of view to that but we submit that

is the truth of the matter, that when the only

claim to apply your law is that you are the forum

where the action has been brought that there is,

query, any real interest in saying, "Our law should

govern the substantive position in this matter" and

that is why - - -

BRENNAN J:  Mr Solicitor, I can see the force of that

argument when the cause of action arises at common

law but one can readily cogitate differing policy

views being adopted by the parliaments of two

States: in one State where the cause of action is

created by the legislature; in the other, where it

is positively rejected.

MR DOYLE:	Yes.
BRENNAN J:	What one could think, for example, in the modern

context, for obvious reasons, there might be a
desire in one State to create a cause of action

with respect, say, to AIDS infection; in another,
to refuse to allow its courts to give relief for
that, for substantial policy reasons. I see the
force in relation to the common law areas but with

respect to the substantive legislative provisions

it seems to me to be a problem of no small

importance.

MR DOYLE: Yes. Well, Your Honour, I recognize that but, in

our respectful submission, if we take that and if

we postulate that the New South Wales Parliament

has enacted that there shall be no actions for

damages arising out of contraction of AIDS in New

South Wales to head it right off and to stop it,

and then someone sues in New South Wales in respect

of an AIDS' case and the events occurred in South

Australia, really, in the end one can still say,

"Well, why should it concern the New South Wales

Parliament merely because its courts happen to be hearing the case?" South Australian law will be

being applied only because that is where the events

happened and, assuming one acknowledges some

exception to the rigid application of the law of

the place, and also because there are no

exceptional circumstances which tell you not to

apply South Australian law.

So, if that is the position, I would, as it

were, rhetorically put back to Your Honour, "Why should it concern the New South Wales Parliament merely that they are hearing the cas~?

Miller(2) 146 10/4/91

BRENNAN J:	Yes.
MR DOYLE:	So it follows that on the approach to the choice

of law matter we disagree with what appears to be

really the fundamental rationale of the opposing

view and, in our respectful submission, Your Honour

Justice Brennan really said all that can be said in

support of it - and we do not deny its force - at

pages 111 and 115 in Breavington and what I have

put is our answer to it.

There will, of course, still be difficulties.

This Court's decision in Voth v Manildra shows how

it will still be difficult at times to decide what

is the relevant place.	But those difficulties just
have to be faced.

Could I also just invite the Court's attention

at some convenient stage, on this issue, to a quite

recent report which is just on our list of

authorities, I am not going to read from it. It is

the report of the Law Commission in England of 11

December 1990, "Private International Law - Choice

of Law in Tort and Delict". The Law Commissions of

England and Scotland there have grappled, query,

finally with the problem and I think Your Honours

would find their discussion of the matter helpful.

Also, finally and very briefly on the approach

to choice of law, while it does not have to be

decided here, our submission is that application of

the law of the place is not an inflexible

requirement. In our submission, the United States

experience indicates that to make it an inflexible

requirement would be to impose a straitjacket that

is almost certain, in due course, to make the rule

itself unworkable.

Could I then come to section 118,

Your Honours, again on the same basis that while it

does not directly arise here, it has a contextual

relevance in that if section 118 says certain

things one may be all the more inclined to apply
time limits of the law of the place at the choice

of law level, but also because, in our submission,

Mr Ellicott, in his submissions, gave section 118 a

greater role than should be given to it.

We submit that in the Australian Federation the problem is statutes.

MASON CJ:  Mr Solicitor, we may adjourn now and resume at

2.15 pm.

Miller(2) 147 10/4/91

AT 12.50 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

MASON CJ: Yes, Mr Solicitor.

MR DOYLE: If the Court pleases, turning then to

section 118, as I said at the adjournment, in our

submission, its role was in relation to statutes.

We have uniform common law; uniform common law

choice of law rules and even with the presence of

Phillips v Eyre in them, there is no problem in

this area, it is only when statutes intrude that we

face the possibility within the federation of

getting different answers on the one set of facts.

Could I just say a little more about the

nature of the problem? First of all, what we may find is that you have forum statute which confers

rights which the law of the place either does not

give, it is merely silent, or which it

affirmatively denies, presumably through a statute.

In that situation if the forum court applies its statute, then whether you are an adherent to

Phillips and Eyre, or whether you apply the law of

the place, you are going to find the forum court

giving a result contrary to the result that would

be given by Phillips v Eyre or a reference to the

law of the place.

Another possibility is you may have a forum

statute - and I am assuming all along that on the

facts the statute purports or claims to apply -

which denies a remedy which the law of the place

gives, and in that situation the law of the place again might be common law or statute. Now, as it

happens, if you are an adherent to Phillips v Eyre

that is not a problem because Phillips v Eyre

allows that role for the law of the forum, but if

you advocate applying the law of the place, then
you will find the court of the forum not giving a

result which would be given by reference to the law

of the place. And it is not difficult to visualize

situations in which this Court itself may find

itself in the odd position; you could have an

accident say, in one State, involving two

passengers; one sues in State A and let us say

fails; one sues in State Band succeeds. The two

actions could theoretically come on for appeal in

this Court and be heard together and yet, if the

Court, as it were, traces its jurisdiction back to

the law of the respective States it is

contemplating the possibility of giving differing

Miller(2) 148 10/4/10

answers to the two passengers injured in the one

accident. And then one again can, I suppose, turn

it round by saying, "Well now, in those situations, what if we postulate the same statutes of the forum

but now envisage the matter being litigated in the

law of the place; what is to happen there?"

In some of those situations the exception to the inflexible application of the law of the place

may solve the problem, and in some situations a

process of categorization may solve the problem.

For instance, in the area of tort you may find if

it is a statute that by categorizing it not as a

tort situation you escape the problem and make it

easier, as it were, to resolve what is an apparent

conflict. That may well work at least where you
have a clash between a statute and common law.

But, in our submission, one cannot say that those approaches will always work.

Then conversely you can get the situation

where, for example, a statute of New South Wales

might purport to apply to events in Victoria which,

at least initially, look wholly Victorian. That

situation came before the Victorian Supreme Court

in the case of Borg Warner v Zupan, (1982) VR 437.

That is referred to in our outline, Your Honours,

in paragraph 12.

I will not read from the case but I will give

Your Honours some page references in a moment. In

essence what happened there was there was an

accident in Victoria. As it happened, the person

who was injured was a worker, and the employer was

a New South Wales employer and paid workers'

compensation under the New South Wales Act, and

then sought to sue one of the persons involved in

the accident in Victoria exercising the right of

recovery under the New South Wales legislation

which is given in the fairly common form enabling

an employer who pays compensation to sue a person

who has negligently injured the worker to recover the compensation.

So, while it started off, at least when one

first looked at the facts, looking simply like an

intra-Victorian tort situation, one found a New

South Wales statute on its terms purporting to apply and to give a remedy.

What the court did in the end was to say,

"Well, first of all the court looked at the New

South Wales section and concluded that the section

was not confined to giving rights of recovery in

New South Wales courts, and it also concluded that

it was not confined to accidents which happened in

New South Wales." So at that stage the court was

Miller(2) 149 10/4/91

not able to get rid of the problem by a process of

construction.

Then it went through what might seem almost

the agony of deciding whether this really was a

case in tort because as the court really posed to

itself, "If this is a tort case how come, in

effect, we are being asked to apply New South Wales

law to what looks like a wholly Victorian tort?"

So, then it went through a somewhat tortuous

process of characterization and concluded that it

was not in truth a tort and so then was finally

left confronting the question, "Well, now, is there

anything that stops us applying the New South Wales

statute in this Victorian action to allow remedy?"

and the court concluded that there was nothing and,

therefore, allowed the actions to proceed.

Now, in that case it looks like a satisfactory

result, but one can obviously see it would have

been far more difficult to resolve had it not been

possible to categorize the New South Wales statute

as not creating a cause of action in tort. That

was really the solvent to the problem in that

particular situation, and the position would have

been even more difficult if there had been a

Victorian statute apparently bearing on the

situation and appearing to dictate a contrary

result.

The page references I will give to

Your Honours just to indicate, and I will just give

the page references where one can pick out the
steps in the judgments. First of all, the judgment

of Mr Justice Murphy, pages 440 point 5;

443 point 05; 444 point 20 and then

Mr Justice Marks, 448 point 15 and then three

references together dealing with the application of

Phillips v Eyre, 453 point 40; 455 point 05 and

456 point 45 and then on the question of the

application of the New South Wales Act,

461 point 45 and 462 point 05. So, I just use that

case as a convenient illustration of the problems

which can arise.

So, there can be within the Federation

competing statutes. You can find statutes

purporting to apply when on ordinary choice of law

approaches they would not be selected and you can,
as we had there, also have statutes from outside a

State apparently purporting to operate on events

wholly within a State. And all of those statutes,

of course, prima facie look valid when one asks the

question or applies the test, "Peace, order and

good government".

Miller(2) 150 10/4/91

The next point we would make about that

problem is, that choice of law rules, in our

submission, cannot resolve them because it does

appear to be accepted that once the forum court

decides its own statute purports to apply and

provided it is a statute for peace, order and good

government, then the forum court will apply it

subject, of course, to section 118 and I will not

go through the cases on that point, but we have set
out some cases in paragraphs 11 and 12 of our

outline of submissions and, in particular, we have

referred to what Your Honour Justice Brennan said

in Breavington on that point where Your Honour
appeared to acknowledge that the forum court must

always apply statutes of the forum which purport to

apply.

And we also just make the point in

paragraph 13 that this potential problem is not

restricted to situations of civil action ability as

the passage that Mr Ellicott read from the Port

MacDonnell case indicates. It could be a situation

where you are looking at criminal liability because

you could have a statute of South Australia saying, "Because you have got a South Australia licence you

can fish in these waters" and you might have a

Victorian statute which says, in effect, "Well,

because you have not got one of our licences you

cannot fish in those very same waters", that could

arise, so it is not just a problem of civil

actionability.

Now, as to that, our submission is that within the Australian Federation there should be an answer

to this problem, that prima facie as I have put it,

it is not a question of validity at the level of

peace, order and good government because we are

assuming the statutes have passed that test. And

we submit that section 118 can given an answer, but

this is the only problem for which it is needed.

At the common law level it is not required.

What we submit is that in those situations of

what I will call are the conflicting statutes or

statutes purporting to apply when it is either not

apparently a choice of law situation at all or they

purport to apply contrary to choice of law rules,

what we submit is that the giving of full faith and

credit means that in those situations the courts

must decide which of the rival statutes is to apply

if they are rivals or, if it is a single statute,

whether the application of the statute is

consistent with full faith and credit.

It is not, in our submission, ever a case of

automatic deference by the law of the forum to the laws of some other place. In our submission, that

Miller(2) 151 10/4/91

is not involved. It is a question of whether the

application of one or one of two competing statutes

is consistent with the giving of full faith and

credit, and we submit that what section 118

requires is that that type of matter be resolved so

as to give a single answer wherever the question

arises within the legal system of the Federation.

So what is the answer? First of all, in our

submission, the answer can vary from area of law to
area of law. In a case where one does categorize

it as a tort situation the answer may be that you

will apply the law of the statute of the place of

the injury. In a status situation the answer may

be you will apply the law of the domicile. In a

contract situation it may be you will apply the

statute which is part of the proper law of the

contract.

The point I make is that, in our submission,

we are not putting ourselves into an inflexible

strait-jacket here. What we are doing is

submitting that section 118 requires the courts in

that situation to make the choice. The requirement

is to make a choice that will give you one answer

wherever the question arises, but the answer is not

an inflexible answer to be applied universally in

every situation.

So for that reason, if in Breavington

Your Honour Justice Deane, when you referred to

"the predominant territorial nexus" was putting

that forward as a universal criterion as distinct

from one in the area of tort, we would submit that

that is not the prop·er answer; that in truth the

answer can vary as long as it is an answer that

will give a single result to a single set of facts.

Again, the answer may replicate choice of law

rules but our submission is that it does not have

what is the appropriate answer within the federal	to. It is the function of the Court to determine
system. The appropriate answer may be found in an
existing choice of law rule. It may not be.

So, in our submission, all that is necessary

to say at this stage is that section 118 does give

the courts that function, and it is not necessary
nor is there any point, in our submission, in
attempting to say here what will be the answer for

all conceivable situations. But again, in our

submission, it is not enough to say as Your Honours

Justice Gaudron and Justice Wilson appeared to say in Breavington that what you do is you decide the

case in the way in which the court of the place

where things happened would decide it, because in

this situation of rival statutes or statutes

Miller(2) 152 10/4/91

claiming to apply, the court of the place where

things happened will just, in effect, ask you the

same question.

That is a satisfactory approach, that is,

acting as if you were the court of the place when

it is merely a problem that the events occurred in

State A and the action is being heard in State B.

But when you add into the problem the fact that statutes that ordinarily would not be applied are

claiming to apply, then you have to answer a

further problem, and so just saying - - -

GAUDRON J:  You do have this problem, do you not,

Mr Solicitor:	assume it happens in State A. It is
the subject of	litigation in State A, and there is
no question of	federal jurisdiction.

MR DOYLE:  I am sorry, I did not understand the question.

GAUDRON J: Well, assume the events which are the subject of

the litigation arose in State A. They are

litigated in State A, and there is no question of

federal jurisdiction. On what basis could the

courts of State A apply the laws of State B?

MR DOYLE:	Prima facie, Your Honour, they would not, but - - -
GAUDRON J:	But what you are saying hypothesizes that, if

you change it now and bring it in State B, or even

State C or D, you might find that law B applies.

MR DOYLE:  You may, Your Honour. Initially the choice of

law rules will solve the problem, but you may find

that, having applied the choice of law rules, that

you are hearing the case in State B, we will say,

and the events are in State A, you may find choice

of law rules are pointing you to State A, but you

have got a statute - - -

GAUDRON J: Well, let us say you find them pointing you to

State C.

MR DOYLE:  Pardon, Your Honour.

GAUDRON J: Let us assume that you find choice of law rules

pointing you to State C.

MR DOYLE:  Then there is no problem.

GAUDRON J: Well there is a problem if the action is brought

in State A, the events happened in State A, and

that is the point of what was said in that

judgment, that if you are assuming that throughout

the entire Federation there can only be one set of legal consequences, then you have got to deal with

Miller(2) 153 10/4/91

the situation in which the choice of law question

does not arise simply because the matters are

litigated in the State where they happened.

MR DOYLE: Well, I may not have understood Your Honour

properly but, in giving the answer I gave, because

our choice of law rules in Australia are uniform, I

had assumed that if - - -

GAUDRON J:  And they are only uniform to the extent that

they depend on the common law. On your argument,

perhaps, any State could tomorrow legislate quite

different choice of law rules.

MR DOYLE: Exactly, and then a situation to which

section 118 applies would have arisen, because now

you would have a statute of a State dressed up, and

I do not mean that in a pejorative sense, as choice

of law rules which is now giving the State statutes

an operation in situations which prima facie the

laws of other States would not give it an

operation. So, the only reason why I submitted
that the test of acting as if you were the court of
the place is not enough is that, once you get
beyond an ordinary choice of law situation into a

case in which there are these statutes making a

claim to apply contrary to choice of law rules, or

in a manner not recognized by choice of law rules,

then you have got a further ingredient to the

problem which will be faced also by the court of

the place where things happened.

GAUDRON J:  But does this not show up the problem that we

are not really talking about quite the same thing

as is comprehended in the notion of choice of law?

MR DOYLE:  I accept we are not, Your Honour, because perhaps

my categorization is not acceptable, but I have

treated choice of law as being what happens under

the - - -

GAUDRON J: Well it is the only one we know. I mean -

MR DOYLE:  Yes. Choice of law is what we recognize as the

common law choice of law rules. The statutes, you

can call them a form of choice of law; what it

really means is you find a given statute which has

within it its own choice of law rule, for example,

it purports to apply throughout Australia on the

basis that the parties it refers to were resident

in South Australia. It is a choice of law problem,

but it is a problem which the ordinary choice of

law rules cannot resolve, because the accepted law

is that subject to section 118 at least a court of

the forum will always apply its own statutes, and

the difficulty is you may find the court of the

forum on that principle confronted by -one of its

Miller(2) 154 10/4/91

statutes which tells it not to do what would happen

under the law of the place.	Now only a
constitutional principle can resolve that.	An

ordinary, I will say, common law choice of law rule

cannot resolve that problem.

BRENNAN J:  Is it right then that you limit the operation of

the constitutional rule to cases where there are

inconsistencies, using that term in a section 109

sense?

MR DOYLE:  No, Your Honour, because you may find that there

is only one statute, but what you may find is, if I

can give an example, that the choice of law rule

refers to the law of State A, but there is a

statute of State B, and B might or might not be the

forum, which purports to apply to those facts and

give a different result and it is the only statute

bearing on the situation. So it is not just a

section 109 situation. It can be what I have

called rival statutes, but it can also be a single statute claiming, if I can use that term, to apply

to events, when it would not be selected by any

choice of law rule, but it just claims on its own terms to apply to the events and, of course, I am

assuming they are events outside the legislating

State.

BRENNAN J:  Then there would have to be inconsistency in the

same sense between that statute and the common law

rules?

MR DOYLE:	Yes, of the law of the place, if that is the one you refer to.
BRENNAN J:	Do you put it on an inconsistency basis? That

is, do you attribute to 118 the same kind of

operation as one attributes to section 109?

MR DOYLE:  Only in a broad sense, Your Honour. Our

submission is that what I have referred to is a

problem which can and does arise from time to time

within the Federation and that it is unsatisfactory

to have a system which provides no answer to that

problem. I am not suggesting that the Federation,

as it were, will collapse if you have no answer,

but if you have no answer then you do accept then

that, in that situation, depending on where the

case is litigated, you may well get differing

results, in particular, without wanting to be

unduly repetitious, because the forum court absent

a constitutional principle, will always apply forum

statutes and then also, in some situations, you may

find, as we found in Borg Warner v Zupan, a

Victorian court, wondering really how it comes to

be applying and on what basis, a New South Wales

statute to events that, at least when viewed from

Miller(2) 155 10/4/91

only have to play with the facts a little bit to produce a situation in which you would say, "Well

one point of view, are wholly within Victoria.

now, all right, that was all right on those facts,

but now the facts are changed, it does not look

satisfactory to apply the New South Wales statute

and how do we decide what to do?", and in my

submission we do need to have a principle which

resolves that and, in our submission, only a

constitutional principle can.

So, we put forward this answer, and we put it

forward only in relation to cases of personal

injury because, in my submission, even though this particular issue does not arise in this case, just

to make the submission clearer, I put forward the

answer we would suggest for that limited area, and

that is that you apply the - if there are

conflicting statutes, or a statute making a claim

to apply - you apply it, if it is a statute of the
law of the place which has the closest connection

with the events, that would usually be the place

where the events occurred, but not invariably.

Now, that looks suspiciously like the choice of law

rule and it may be said, "Well, why go through all

that agony just to come up with something that

looks like the choice of law rule?" and the answer

to that is that there will be situations where you

have to have a rule; the content may be the same,

but it has to be of a higher status than a choice

of law rule because it has to enable a court to say

that a statute will not be applied.

GAUDRON J:	And that rule will apply in the courts of the place where it happened?
MR DOYLE:	Yes, it will apply everywhere.
GAUDRON J:	Yes.

MR DOYLE:  So, in our submission, that is all you need from

section 118, but you do require that much. Now, I

think this morning Your Honour Justice Brennan
said, "What if you had a New South Wales statute

imposing a time limit, specifically for out of

State torts?". Now, in our submission, if you say

that forum law supplies the time limits, then

presumably you have not got a problem because you

are quite happy, in a New South Wales court, to

apply the time limits of the forum, but if in that

situation you say that the time limits of the law

of the place should be applied then our submission

would be that such a statute would be invalid -

perhaps I should not say "invalid" - that such a

statute could not be applied, having.regard to

section 118, because it is the law of

Miller(2) 156 10/4/91

South Australia which has the closest connection

with the tort I am postulating, assuming the tort

is in South Australia, and putting it a little more

broadly, such a statute would amount to refusing

access to the New South Wales courts for the
enforcement of actions arising under South

Australian law, and in my submission that is contrary to the requirement of full faith and

credit but, more narrowly, it is because South

Australian law has the closest connection, that one

cannot apply in that situation the New South Wales

time limit.

BRENNAN J:  Mr Solicitor, could I just understand; you say

closest connection, you are using proper law of the

tort concept instead of lex loci concept?

MR DOYLE:  Yes, Your Honour. I am saying that the fact that

events occurred in a place will usually be enough

but will not be decisive and so, for instance, in a

given situation perhaps the relationship between

the parties might be of such significance that that
outweighs the law of the place where the events

occurred.

I realize the actual test, Your Honour, may be

a little fuzzy, but because this issue does not

really arise here I have not, with respect,

attempted to think it right through. Our basic

submission is that there has to be a principle in section 118 to resolve these statutory situations

and it has to be a principle which enables you to

arrive at a single result wherever the issue

arises, and then that is our suggested answer for

personal injury cases .. But it is rather like the
proper law of the tort approach but probably gives

more weight to the place where things happen than

that approach does.

This morning also, I think Your Honours

Justices Brennan and Dawson said, "Well, what if

New South Wales law took away from the Supreme Court of New South Wales and any other court the	ability to hear a given type of case, let us say
actions between husband and wife arising out of
motor vehicle accidents, what would happen then
because the jurisdiction has gone altogether. In our submission, section 118 can provide an answer
even to that if one accepts that the Constitution
and section 118 assume the existence of a system of
State courts to which the residents of other States
may have access and, although there are very few
references in the Constitution to the State courts, section 73, I think it is, for example, gives this
Court jurisdiction under the Constitution in
respect of appeals from the supreme court of any
State.

Miller(2) 157 10/4/91

DEANE J:  Mr Solicitor, is it inherent in your submission

that notwithstanding different statutory contexts,
the common law could not develop differently in

different parts of the country?

MR DOYLE:  It is, yes, Your Honour, because of the role of

this Court. In our submission, it seems

inconceivable that this Court could say, "Well, the common law of Queensland is X but on the same point the common law of South Australia is Y".

DEANE J:  In the way the Privy Council did in relation to

it.

MR DOYLE:	Yes.
McHUGH J:	It depends though.  Take a case like Gogic where

we, in effect, said, "Well, the South Australian

Supreme Court has fixed 4 per cent as the

interest", that is all we said. If Queensland

Supreme Court fixes 3 per cent that will be the

common law of Queensland. It does not necessarily

mean that the Queensland Supreme Court is wrong?

MR DOYLE:  No, but in my submission the common law is to

have an interest rate, but then the particular

interest rate you choose, that is a matter of local

preference. In my submission, that example, at

least, is not an example of conflicting common law

of Australia.

Your Honours, as to the situation where there

is in New South Wales no court - - -

DEANE J:  What if there could be a variation, common law in

different places in Australia, where would your

argument go then?

MR DOYLE:  I can think of a few proverbial answers to that,

Your Honour.

DEANE J: Because if it goes to section 118 it would destroy

the whole basis of your argument -

MR DOYLE:	Yes.
DEANE J:	- - - in that you would be saying, section 18 is

what settles it, but it is only called in when you

need it, which really is not saying anything at

all, is it?

MR DOYLE:  No. Well, if the common law varied, I suppose,

Your Honour, what that would then require one to

address is the question of whether section 118 also

controlled the content of common law rules.

Miller(2) 158 10/4/91

DEANE J:  When there was conflict or contrariety between

them -

MR DOYLE:	Yes.
DEANE J:	- - - but as I say, if it does, does not your

argument then become, well section 118 does govern it all but you do not need to resort to it most of

the time.

MR DOYLE:  Your Honour, it is not necessary to decide

whether section 118 does in truth govern the common

law rules, but I accept that issue would have to be

faced if one says that this Court could declare the

common law differently subject to section 118 in

different parts of Australia.

DEANE J: It depends though what is the right conceptual

order of events, does it not?

MR DOYLE:  Yes. example in the New South Wales court, in our So, Your Honours, just going back to the

submission the answer to that is that if the New

South Wales Parliament terminated the existing

jurisdiction of the New South Wales courts in a

given area and created no replacement court,

section 118 may well invalidate the termination of

that jurisdiction. I do not go so far as to say

that the New South Wales court must always permit

such claims to be litigated in its supreme court,

but if through terminating existing jurisdiction it
left no court to which a resident of another State

could bring a certain type of claim, it may well be

that the termination of that jurisdiction was

contrary to section 118 although that, I

acknowledge, is starting to look like a slightly

different operation of section 118 because it now

seems to be simply invalidating a statute.

But again, it may be the answer is that in

so far as that statute attempts to prevent people

with causes of action under other State laws from	bringing their claims, that it is not to be applied
because the law of the place with the closest
connection gives them a right and section 118
simply requires that it be able to be enforced.

Your Honours, just in brief on the question of

whether section 118 should be given any role, or
indeed this role, could I make these brief

submissions. First of all, when one looks at it in

its context in Chapter V there is good reason to

see it as playing a substantive part, because when

one just glances through Chapter V first of all

sections 106 to 108 are of undeniable importance in

terms of the existence of the States as components

of the Federation. Section 109 is a· v·ery important

Miller(2) 159 10/4/91

section in relation to the relationship between the

States and the Commonwealth. The next three or

four can perhaps be passed over in this context,

but then 116 contains a very important guarantee;

so does 117; so in a practical sense does 119.

So while the context does not all point one

way, there are plenty of things in that chapter
which one can call, as it were, fundamentals of our

Federation and a number of them one can call

guarantees of a type. It only takes one a certain

distance down the road, but in my submission, one

could not say from its context that one would never

attribute to section 118 some kind of significant

substantive operation within the Federation.

The second point that needs to be addressed is

whether this approach deprives section Sl(xxv) of

all content. In our submission it does not. First

of all, it may have a part to play in relation to

what I will call "procedural provisions".

Section 118 may be the guarantee. There may still

be a need, or at least a role, for supportive laws

of a procedural type. Secondly, it may well be,

although one does not have to decide it, that

although 118 contains the guarantee, Sl(xxv)

enables the Commonwealth Parliament to legislate to

decide how best to get to the result. I, a few

moments ago suggested that, in the area of personal

injury actions, a certain content for section 118

that would give you the uniform result. It does

not follow because the guarantee requiring uniform

result is there, that only the courts can play a

part in finding the way to the end. It may well be

that Parliament also can play a part, and if it

chooses to legislate, as long as it legislates

obviously within the head of power to get a single

result, that may well be within its power.

I am not suggesting for a moment the Court should decide that issue here.	I am merely saying
that that may well be a role for section Sl(xxv).

It is rather as if in addition to section 92 there

were a power for the Commonwealth Parliament to

legislate with respect to the freedom of trade,

commerce and intercourse among the States. When

one thinks of that, in my submission, one can think

of laws that might usefully be passed under such a

head of power without in any way weakening the

important guarantee in section 92. The content of

the laws, of course, would still be controlled to some extent by the requirement for the guarantee.

The third possibility, which I just mentioned

for completeness, is that uniform State laws,

laying down uniform choice of law rules to be

applied to statutes, may also be possible in this

Miller(2) 160 10/4/91

area, because if the constitutional requirement is

simply to resolve the conflicts between statutes so

as to achieve a single result on a given set of

facts, then absent Commonwealth legislation which

does it, it by no means follows that uniform State

legislation could not do it, well obviously there
is a problem with unilateral action by one State,

because that would then introduce a disconformity.

So I just mention that because, in our submission, that possibility should not be overlooked.

BRENNAN J:	May I take you back for a moment to your previous proposition. If section 118 can operate
in a single statute situation so that it gives
effect to the common law of choice of law, or it
can do so, then that is because laws in section 118
include common law. If section Sl(xxv) is subject to section 118, what can section Sl(xxv) do with respect to the common law thus protected?

MR DOYLE: Well, what it can do, Your Honour, is, in effect,

change the common law because, in my submission,

what section 118 embodies is the requirement to

reach a single result on a given set of facts and

no more than that and so, if the common law is

altered, you may do that still consistently with

that requirement. So, in conclusion on this aspect

of the matter, Your Honours, in this particular

case there is no need to resort to section 118, but

I have put these submissions in part because

Mr Ellicott, as I understood him, advanced a much

wider role for the section which we would not

accept, but in part also because if one accepts

that section 118 does play that part, then finally,

and here again is the very long tail wagging the

little dog, one can say well, in that context, does

it really make sense to have choice of law rules

which do not pick up time limits of the place where

things occurred and allow a disconformity of result

which, at least in principle, is contrary to the

requirement of section 118. So in that way we

would call the section 118 argument in aid of our

submissions at the very outset, as to the proper
approach to time limits.	And they are our

submissions, if the Court pleases.

MASON CJ:  Thank you, Mr Solicitor. I thought, Mr Solicitor

for New South Wales, you are addressing on the side

of the respondent.

MR MASON:	Yes, the last turn of the screw does, but some of the steps along the way the respondent would not
wish to embrace unless it had to and the respondent has therefore indicated that it would wish
interveners to speak before it.

Miller(2) 161 10/4/91

MASON CJ: 

And is it agreed with the other interveners

supporting the applicant that you should address at
this stage?

MR MASON: 

Yes, Your Honour.

MASON CJ: Very well.

MR MASON: That is subject to the Court's view.

MASON CJ: Well, if it is agreeable to the other interveners

and to the parties, it is acceptable to the Court.

MR MASON:  Thank you. I do seek the Court's indulgence for

providing the Court with a longer outline of

submissions than appropriate. I nevertheless do

not make an apology for that and hope that it will

result in a shorter submission on my part orally.

MASON CJ: In presenting the oral submission you will bear

in mind all that we have heard from your

predecessors up to date, rather than just

presenting a comprehensive argument afresh.

MR MASON:	I shall, and in so far as we take a position different to our predecessors, that is the thrust
of the argument we will be putting, if Your Honour
pleases.

The first paragraph is a proposition that I

think has been put, that is a reflection of the

little dog syndrome, that maybe, and perhaps

unfortunately, the facts of this case do not compel

a determination of the section 118 issue, because

on the traditional approach it does not compel the

New South Wales court to give to the South

Australian statute any greater effect than it was intended to have and there is, in our submission, a

clear and consistent body of authority against

which this limitation statute was enacted, which
would have treated it as, we call it procedural,

but also having the effect of being confined in its

intended operation to actions in the South
Australian Supreme Court.

The judgment of Mr Justice Kitto, referred to in paragraph l(c), is to our knowledge, the only

case in which the matter has actually been

discussed in a 118 context, but the argument that

was advanced by Mr Byers in Pedersen's case did

rely upon section 118 and was rejected implicitly

by the whole Court, explicitly by Mr Justice Kitto

in his judgment.

On section 118 itself, we submit that the

Court should follow a narrow view of section 118;

we cannot put it into an entirely procedural

Miller(2) 162 10/4/91

pigeon-hole, but we endeavour to keep it as narrow

as is appropriate, consistent with other provisions

of the Constitution and the authority of the

earlier decisions. Your Honours, in paragraph 3(b)

there is a reference to the Sun Oil case and the

decision which that has reached, both generally as

to full faith and credit in the United States, and
specifically on this particular problem. It does

indicate, in our submission, a clear trend in the

United States of a retreat from an expansive

approach, the full faith and credit clause,

perhaps under the influence of Mr Justice Jackson,

and all of the difficulties that that approach

created.

On page 3, Your Honours, we - and we

acknowledge the particular assistance of Mr Katz

and his knowledge of American law - address the

matters advanced by Your Honour Mr Justice Deane at

page 132 in Breavington, where Your Honour said

that the American jurisprudence may perhaps be disregarded because of significant textual and

contextual differences between our 118 and their

provision and, in our submission, the various

matters that Your Honour fixed upon are not true

matters of distinction. Your Honours, the first is

the presence of the word, "public Acts", which are in both Constitutions, but in the American context have been held to apply expressly to State statutes

so that the omission of an express reference in

America to "laws" is not a justification, we

submit, for ignoring here decisions there as to the

effect of the American clause.

Secondly, we submit that even if the presence of "laws" in the Australian provision adds

something, it is not anything that provides

assistance in the present context which involves a

resolution of, perhaps, conflicts between different

statutory provisions, because each Constitution has "public Acts" in it which has been held to apply to

State statutes.

Thirdly, Your Honour indicated the presence of

the words, "in each State" in the American
provision, as we read it, suggesting that that was
a narrower operation, whereas in our Constitution

the words are, "throughout the Commonwealth", and

our submission is that that is not a point of true

distinction in that the American case law has

applied the full faith and credit clause to the

District of Columbia, which is not a State, and on

the principle by which that extension was made,

would have applied it to territories and

possessions had it been necessary to do to.	It is
not necessary to do so because the statutory

Miller(2) 163 10/4/91

provision referred to in the middle of page 4 has

done that by way of congressional enactment.

The fourth point of distinction Your Honour

drew attention to was the unifying function

performed by this Court as distinct from the

abdication by the United States Supreme Court of a

function to declare a unified common law and our

submission is to remind Your Honours, with respect,

that certainly until Erie v Tompkins, the position

about the unity of the common law was in America

the same as it still is in Australia.

Fourthly, Your Honour mentioned the fact that

demand of section 118 is uncomplicated by the

competition of a possibly overlapping due process
clause but as the Sun Oil case makes apparent in

the structure of the judgment which analysed "full

faith and credit" at great length and then said,

"We don't need to spend much time on due process
because it is the same principles", what we would

draw from that and submit to the Court is that this

shows that in a relevant context the two clauses

each stand, as it were, on their own feet and one

therefore does not, as it were, read down the
operation of "full faith and credit'' in the United

States merely because there is a parallel result

achieved by the due process provision.

The Sun Oil case, which we mention in

paragraph 4, has been referred to the Court and I

do not trouble the Court with reading or citing any

more of that.

In paragraph 5 we address some of the matters,

and hopefully all of the matters of substance,

which Your Honours Justices Deane and Gaudron,

together with Mr Justice Wilson, fixed upon in

Breavington as a basis for giving section 118 a

function in determining the content of choice of

law rules. Firstly, our submission is that the

Merwin Pastoral case which, at page 97,

Justices Wilson and Gaudron were prepared to extend

by analogy to statutory law, cannot provide a

springboard for the conclusion that section 118 is

an underlying reflection of a unity or a choice of

law creating provision.

Our submission is that Merwin decides no more

than section 118 ensures that the forums common law

conflicts rules may not lead to refusal to apply

the statute law of another State if otherwise

applicable on grounds of public policy. We would

accept, however, that by parity of reasoning a

forum statute that purported to say to a forum

court that it can do what Merwin said the common

law would not let it do would be struck down by

Miller(2) 164 10/4/91

118. That perhaps shows that section 118 is not

purely evidentiary and may limit the capacity of
States to enact arbitrary choice of law rules.

In our submission, Merwin cannot be translated

into a duty to negate the operation of an otherwise
applicable statute of the forum, because if it did

so it would be denying the forum laws operation

throughout the Commonwealth which 118 itself is

designed to protect. "Throughout the Commonwealth"

includes the forum and if it were otherwise you

would have the absurd situation that each State

would have to defer to the laws of another State

and 118 would not provide any assistance, or even

any guidance, about resolution of matters of

conflict other than to say, you stand aside where
another State's law reaches out to touch this

matter.

On page 7 we address, if the Court pleases,

the underlying premise which we detect - detect is

a false statement - which is explicit in the

statements of Your Honours that section 118 is

designed to address the consequences of the

discordant operation of State laws which purport to

apply to the one set of facts and Your Honours, as

did other of the Justices, pointed to the

desirability of having a unitary legal system in

Australia. That is not denied but what, with

respect, is put in issue and we do put in issue, is
that there is a constitutional mandate for it and

that that mandate provides the springboard for

making section 118 become an overarching provision

that, with some of the arguments that have been put

today and yesterday, seems to set every other

provision of the Constitution at nought.

We would, with respect, challenge the

assumption that there is a paramount constitutional

mandate for a need for a single outcome for

litigants regardless of forum and say that taken to

its logical conclusion, which my learned friend

Mr Ellicott did, that would set at nought the

rights of electors through their parliaments to

enact choice of law rules because, as we see the
consequence of the argument that is put against us,
every choice of law provision, including section 79

of the Judiciary Act, section 11 of the

(Cross-Vesting) Act and choice of law enactments

enacted by the States, either singly or in co-

operation with each other, every such provision has

to be tested against the metewand of 118 and maybe
that is okay, but will fail if it does not meet

some broad test that, in effect, says, "The law of

the State with the closer connection must

necessarily prevail in order to achieve this goal",

Miller(2) 165 10/4/91

and we submit perhaps an elusive goal, "of a

unitary system" .

Your Honours, we have given two examples of

State legislation passed by a number of States, but

not all States, where a detailed attempt has been

made to create a choice of law formula in a

particular area of the law. The very complexity of

those statutory provisions and the policy factors

that must necessarily have been taken into account

in achieving the balance shows, in our respectful

submission, the difficulty, to say the least, that

this Court would be embarking upon if section 118

is erected, as it were, the sole choice of law

provision.

DEANE J:  But that just is not right, Mr Solicitor. I mean,

nobody has ever suggested that if you have a co-

operative scheme the States could not withdraw the
extent or application of their legislation and
thereby bring into force a co-operative scheme for

resolving problems within section 118.

MR MASON:  I am not sure whether Your Honour would be

confining the States' rights to truly co-operative

schemes.

DEANE J:  I was just commenting on your statement that the

approach to section 118 that you are attacking

would preclude co-operative schemes between the

States for determining conflict of law principles

in certain cases and pointing out it is just not

so.

MR MASON:  If the application of the rules worked out in

that co-operative scheme did not meet with the

approach to section 118 that found - - -

DEANE J: But they would. If State A and State B get

together and say in this area by legislation the

law of State A will apply and not State B,

section 118 would have nothing at all to say to

that.

MR MASON:  There would be no need for section 118, no. I

accept that.

DEANE J:  And that would be the way you would put into

effect such a co-operative scheme.

MR MASON:  I accept that, Your Honour. My point therefore

needs to be refined, and I do seek to do so to say that what may be put in issue by the approach that

is put against us about 118 is the capacity of

individual States, or less than all States, to

enact what is a reasoned choice of law rule which

may depart from the common law choice of law

Miller(2) 166 10/4/91

position and therefore destroy the unity of the

system.

In one sense tort may be the easiest of all

the situations, and if section 118 is to be pressed

into service in a conflict resolution way, then any

principles would have to meet with the needs of

other areas of law besides tort where the

attachment of the parties involved in a transaction

may be less clear than they are in tort, for

example, a will situation where there may be

domicile in one State, residence in another,
property in another. And it is in that area that
there should be and there is at risk the right of

the States and the Parliament and the people

through the Parliament to work out the policy

factors in a way that does not make their task nugatory or necessarily subject to section 118 challenge simply because a broadly stated test

might perhaps arrive at a different result.

Your Honours, in the United States, the full

faith and credit clause has really been seen as

providing a bottom line, as it were, a method

whereby only arbitrary and unfair choice of law

systems worked out by the States may be struck

down. I say that because something my learned

friend, the Solicitor for South Australia, said to

the effect that one State has a closer relationship

to the facts of the matter as if that answered the

section 118 position. As we would read the

conclusion that perhaps Justices Wilson and Gaudron

reached from the section 118 proposition they took

to its application in the torts area by saying,

"Therefore, the way we apply that in a tort

situation is to say that the place of the tort

being the place with the greater connection is

therefore necessarily the choice of law that is

mandated by section 118.", what is apparently

explicit in that approach is that the capacity to

depart from that "one winner only" approach is put

at risk. In Allstate v Hague, 449 US 302, at page 308 the principle that was there stated in a very short passage I will read:

In order to ensure that the choice of law is

neither arbitrary nor fundamentally

unfair ..... the Court has invalidated the

choice of law of a State which has had no

significant contact or significant aggregation

of contacts, creating state interests, with

the parties and the occurrence or transaction.

So it is very much a test which says if you go too

far in making a statutory choice of law provision

which has an operation that just is unfair, then

Miller(2) 167 10/4/91

section 118 or full faith and credit has a role to

play.

On pages 7 to 9 we would respectfully draw

issue with the five factors which Your Honour

Justice Deane in Breavington at page 122 and

following fixed upon as being the aspects from

which you inferred an intention to create a unitary

system.

The first was federal jurisdiction, and in

particular diversity jurisdiction, and we would

submit that the Constitution necessarily provides

the capacity for that unity to be departed from by

the very vesting of federal jurisdiction in State

courts. And we submit that diversity jurisdiction

itself may involve conformity by federal courts

with the local State law even though this produces

different results in different States. That is

what section 79 of the Judiciary Act has ensured

and that is the position the American Supreme Court

came to in its momentous decision of Erie v

Tompkins.

Secondly, Your Honour referred to the rule of

law and the separation of powers. We would submit

that, with respect, this does not really add

anything or provide a basis for a unitary system

nor does the description of the law administered by

federal courts as the national law. With the

greatest of respect, that is stating what is in

issue.

Uniformity of administration of federal and

State laws is a goal but, we submit, not one that

is compelled by the uncertain assistance of

section 118. Conflicts rules themselves are part

of the pre-existing law. So, we would respectfully

say that it is not a departure from the rule of law

to have a system whereby different results are

reached in different fori by the application of

otherwise appropriate rules of law.

Thirdly, Your Honour referred to the common

law inheritance and, with respect, the problem we

are facing really arises because of the impact of statutes and there is also the inheritance of the

principle of parliamentary sovereignty which is

reflected in the Constitution and the empowerment of the State parliaments to legislate as they see

fit within limits, we accept, for the peace, order

and good government of the State concerned.

Then, fourthly, Your Honour referred to the

principle of the injustice of a single situation

being exposed to inconsistent results

contemporaneously. We would acknowledge the

Miller(2) 168 10/4/91

injustice of that but submit that to move from that

to say that one resolves it by creating a unitary

system of law is to go much further than the
Constitution would have contemplated.

We would submit that the principles of private international law, whatever their application,

being derived ultimately from the law of the place

of the jurisdiction which, as long as we have

States, State courts and State parliaments, must

include a law deriving from those sources but

nevertheless resolve conflicts in a way that is

presumably capable of being fair and have regard to

the interests of the relevant parties involved, that is the way to proceed rather than deriving

from this notion an idea of unitary system.

The fifth aspect was the role of the High

Court and, with great respect, we submit, it is

question begging to assume that this Court's role

applies in all areas where the laws of different

States direct different outcomes. The fact is that

the very unity of the High Court means that it is
the supreme arbiter of the law of the States as
well as the law of the Commonwealth and if that law

of the States produces certain outcomes, well then,

so be it, other things being equal.

We submit, Your Honours, that this unity

approach ignores the capacity of private

international law to resolve conflicts in a

consistent way and overlooks the fact that if

matters get too far out of kilter, section Sl(xxv)

may provide a way of resolving conflicting

conflicts rules.

In any event, this unity is, with respect, a

bit of a shimmerer because disconformity

necessarily occurs at whatever point one draws the

substance procedure line and, in a sense, this is

the point that Justice McHugh has been putting in
the course of argument.

We would also pose this question that the

example is always given an accident that occurs, a

driver and two passengers; one passenger sues in terrible that you get a different result arising

out of that one accident? We would pose this

situation: an accident occurs in Albury/Wodonga.

Is it not terrible that you get a different result

depending upon which side of the bridge the people

happen to be when the accident occurs? In our

respectful submission, disconformity, disunity is a

necessary - maybe not appropriate, but a necessary
outcome of a federal system in which substantive

law making powers in certain significant areas are

Miller(2) 169 10/4/91

conferred upon States.

We then submit, Your Honours, that section 118

really provides no criteria for exercising choice

and I think that written submission, if I may say

so, we would ask just to speak for itself and I

will not develop orally the balance of page 10.	We
have had the advantage of seeing the written

submissions for the Commonwealth on section 118 and

may I say that we would adopt those submissions in

their entirety.

Turning then, if I may, to the common law

position and just dealing with three preliminary

matters, Your Honour Justice Gaudron asked one of

the earlier speakers this morning whether there was

any case law that dealt with the situation of an

action which was barred in the place of the
occurrence, but there was then an action brought in

another forum after the time bar had fallen in the

place of the occurrence. I hope I have correctly

understood your question. Dicey & Morris - - -

GAUDRON J: It was a tort action.

MR MASON: Well, Dicey & Morris 11th Edition, page 189

footnote 26, list a whole number of cases,

including Pedersen v Young.

GAUDRON J: Oh yes, but not in federal jurisdiction. It

seems to me there may be quite different

considerations in a unitary system.

MR MASON:  We would submit that the mere fact that it is a

federal jurisdiction would not in itself be a

criterion of distinction.

GAUDRON J: It may not be, but I was putting it in terms

really of an actionability rule and certainly thus

far in our jurisprudence there is not much about

actionability in federal jurisdiction.

MR MASON:  Yes. If conflicts rules are really rules which

resolve conflicts as to matters of substance and

matters of procedure, then a jurisdictional

requirement should make no difference in principle

to matters of substance.

GAUDRON J: Well it may. It may be that there is a

difference, but anyway you have referred me to

the - - -

MR MASON:  I do not say that that footnote deals with tort,

but it is a collection of a whole lot of cases
dealing with what I took to be the broader

question, namely time bar in the place, extended

time in the forum.

Miller(2) 170 10/4/91

GAUDRON J: Yes, but you see, if I could just explain in

that context, if you wish to come back with

something on Pedersen v Young, it is wrong, I would

think, in matters of federal jurisdiction, to

distinguish between the place and the forum, save

where you have got a true international aspect. If the Pedersen v Young situation, once you are within federal jurisdiction, your place of the wrong is

Australia and there is no warrant for being more

precise than that. Your law district, in matters

of federal jurisdiction, is the entire country.

MR MASON:  In so far as federal jurisdiction includes

diversity jurisdiction, in other words an area

which may be entirely outside of the legislative
competence of the national Parliament, there must

have been an - - -

GAUDRON J: Well that has not yet been decided, has it?

MR MASON:  I would certainly submit that the area of

diversity jurisdiction encompasses a number of

areas which would be outside of federal legislative

competence qua substance. Once you see that

diversity jurisdiction deals with the method of

adjudicating disputes and not necessarily with the

laws by reference to which they will be determined,

then there is necessarily, in our submission, an

indication that if section 79 had not been written,

one would have had to have invented it in any

event, that there is a necessary need to have

reference to a body of law which, as

Mr Justice Deane has said so strongly, as it were,

pre-exists outside of the jurisdiction of the court

that administers that body of law. So we would

submit, with respect, that questions of

jurisdiction, federal or otherwise, do not really
provide any pointer to the questions of the

substantive content of private international law

rules.

GAUDRON J:  No, but they may bear on, if it is a separate question, the issue of actionability.

MR MASON:	Yes. Well again, if actionability is seen as looking at substance or something other than
substance.

Your Honours, the second preliminary comment

is that some of the submissions, particular from my

learned friend, Mr Ellicott, seemed almost to be

saying that Breavington v Godleman launches us into

a new era where the law which the forum exercises

in an interstate conflict situation, is not the law

of the forum but the law of some other body, be it

South Australia, or whatever, but we would submit, as a matter of primary principle of conflicts law,

Miller(2) 171 10/4/91

it must be the law of the forum, what is in issue

is what is the content of that law, and the extent

to which that law borrows from the substance of a

legal system having a closer connection with the

facts of the matter.

Your Honours, there is just a short dictum by

Mr Justice Hutley in Walker v Pickles,

(1980) 2 NSWLR 281, at 284 and 285, where

His Honour said that:

An action of tort may be brought in New

South Wales courts irrespective of where the facts founding the action may have occurred, even if they occurred in a place where there

may be no law at all. A pleading of a cause

of action in tort which did not allege that

the facts occurred in any particular law

district would be formally valid.

And to similar effects, Lord Pearson in Boys v

Chaplin, 1971) AC 356 at 395 and 396. And a place

where there might be no law at all would be the

high seas, for example, and we would respectfully

submit that whatever rule this Court is invited to

create with respect to conflicts matters, it should

not be one which throws out the window hundreds of
years of inherited and universal principle with

respect to private international law that the

obligation that is enforced is, at bottom, an

obligation created by and capable of modification

by the place in which the action is brought.

A third, minor point: Your Honour

Mr Justice Brennan asked about transport accidents

in New South Wales. Transcover has been repealed

and so we are sort of back - it is called a common

law system but it is the common law of negligence
in which there are compulsory insurance; no

contributory negligence is a complete defence,

et cetera.

BRENNAN J:	Welcome back.
MR MASON:	Your Honours, in paragraph 6 we refer the Court

to, and borrow from, the working pPaper of the Law

Commission on this whole question of

"Classification of Limitation in Private

International Law" - - -

MASON CJ:  Would you provide us with a copy of that? We do

not seem to have a copy of it?

MR MASON:  I shall, yes, Your Honour. May I do that within

a couple of days, it is quite a bulky document?

MASON CJ: Yes, certainly.

Miller(2) 172 10/4/91

MR MASON:  There was a report that followed on the working

paper. The more detailed discussion is in the

green working paper than the report.

Your Honours, the fact that limitation statutes were approached as a single area does not

mean that there should not be some principle stated

if the Court is going to change the existing law as

to the approach of characterization that is

inherent in that change. The substance procedure

line that is drawn by way of private international

law characterization is really, we submit, a

shorthand way of say, "Those areas in which the

Court will defer to the place with the most

relevant connection to the tort, breach of

contract, et cetera", and those areas where the

forum is saying, "Well, if you want us to hear the
case, we are applying our rules", or "We are

accepting what our Parliament tells us".

In an article by a Mr Cook called "Substance"

and "Procedure" in the Conflict of Laws, 42 Yale

Law Journal, 333, at 343-4, there is a short

sentence, if I may read:

If we admit that the "substantive" shades off

by imperceptible degrees into the

"procedural", and that the "line" between them

does not "exist", to be discovered merely by

logic and analysis, but is rather to be drawn

so as best to carry out our purpose, we see

that our problem resolves itself substantially

in this this:  How far can the court of the

forum go in applying the rules taken from the
foreign system of law without unduly

hindering or inconveniencing itself?

In a sense, that approach tends to stand

side-by-side with that of my learned friend, the

Solicitor for South Australia, who said that when

it comes to a choice perhaps we should be narrowing

down the scope of what is deemed procedural for

conflicts rules rather than increasing them.

Your Honours, on page 12 we refer the Court to the decision taken by the House of Lords not to buy into judicial reform of this area and we have not

cited, because I am sure the Court, with respect,

would be familiar with it, the principles whereby

this Court - Trigwell and the like - decides

whether or not an area is appropriate for judicial

as distinct from from legislative reform.

Nevertheless, we submit, that the Court should

adopt the rule that is proposed in paragraph 8.	As
stated we confine the principle - - -

Miller(2) 17 3 10/4/91

McHUGH J:  Do we adopt such a rule prospectively or

retrospectively, because it may have the effect of
defeating rights of litigants already before the

courts?

MR MASON:  Yes, well, prospectively.

McHUGH J: Prospectively.

MR MASON:  The rule that we propose is confined, in its

narrower formulation, to the situation we have
here: shorter period in the lex causae, longer

period in the forum, the reason for that we will

come to later if we may.

In paragraph (a) of the notes we submit that

if there is a new principle the Court should, with

respect, abandon the question of simply

characterizing it as substantive rather than

procedural and just break straight through to a

more direct principle. The other notes, if I may,

I will not burden the Court by just reading and

leave them. Paragraph (e), we do nevertheless
submit that there should be the flexible tail in

the principle. The decision of Warner v Auberge

Gray Rocks Inn referred to in the middle of page 13

is a very interesting example of that flexible

principle at operation, perhaps a little bit too

flexible. That is in New Jersey, the very

jurisdiction that created the Heavner rule which

was cited to the Court earlier as being one of the

very early decisions in the United States that did

the switch to a substantive categorization.

The New Jersey·Court, nevertheless, created an

exception which would be very helpful to the

plaintiff in this case. It said that this rule we

now declare does not apply to a plaintiff who is

domiciled in the forum. So, we would cite that as

an example of a more flexible approach being in

play in an appropriate case. Whether it has to be

quite that flexible we do not wish to put a

particular position.

The American Law Institute restatement

paragraph that is referred to at the very bottom of

the page is an up-to-date collection of the case

law as well as the formulation of a possibly

appropriate principle. The British Columbia
legislation is a statement which - I will just
quickly read from the section 13 that is referred

to:

Where it is determined in an action that

the law of a jurisdiction other than British

Columbia is applicable and the limitation law

of that jurisdiction is, for the purposes of

Miller(2) 174 10/4/91

private international law, classified as

procedural, the court may apply British

Columbia limitation law or may apply the

limitation law of the other jurisdiction if a

more just result is produced.

Finally, Your Honours, we submit, that a

different position may prevail with respect to the

reverse situation of a shorter forum statute and

not be brought, does not necessarily say, an

that is because a law which says, as does the New may

action within six years can be brought, but a law

which says, an action which after three years may

not be brought, is apparently universal in that

forbidding.

We would submit that particularly if the Court

were to make a rule other than prospectively, there

would be great difficulty because the local

limitation statutes have presumably been enacted

against present understanding that they are to be

regarded as universal in speaking to their local

courts and the difficulty in just saying, "Will you

disregard local limitation statutes?", is that a

rule of the common law is being erected, as it

were, in the face of a statutory command addressed

to the local courts.

My learned friend, the Solicitor for South Australia, queried the interest of a particular

State in applying its own law in relation to

external matters. We would submit that there may

well be a real interest. For one thing, the forum
may have an interest in barring all claims of a

particular nature. It may be seen to be

inappropriate that out-of-State litigants should be

able to bring a claim, such as an AIDS claim, to

use the example which was given, whilst local

residents were not. The local parliament may think

it appropriate to save the time of its courts by

prescribing a universal rule, even though it
operates, in part, to external residents.	We would

submit it would have to be a particularly blatant

and arbitrary locally enacted choice of law rule

before one could say there was no interest in the

local forum parliament and, for reasons we gave

before, before there could be any possibility of
any challenge under section 118. If the Court

pleases.

MASON CJ:  Thank you, Mr Solicitor. Mr Solicitor for the

Northern Territory.

MR PAULING: If Your Honours please, I will be extremely

brief. We had prepared submissions in writing, but

all of the points that were there contained have

Miller(2) 175 10/4/91

been picked up in other submissions and I do not

propose to hand up the outline in those

circumstances.

The Northern Territory supports the majority

result in Breavington and that is that in personal

injuries torts the lex loci ought to apply.

Whether it is a flexible or inflexible rule, we do

not seek to make a present submission. The Law

Reform Commission, in its discussion paper number

44 on Choice of Law Rules, raised a rather

interesting fact situation of businessmen in a

plane going from Melbourne to Brisbane where, in

the air space over New South Wales, one defames the

other, where none of the parties have any

particular interest in New South Wales at all, it

only just happened that they were there and whether

an inflexible rule in relation to the locus - and I

appreciate that we are not talking a~out the

peculiar problems of defamation, but whether an

inflexible rule might bring about a result that

nobody wanted.

The Northern Territory does not wish to be

involved in the debate as to the extent to which

section 118 provides the Court for the majority

result. Section 118 does not yet apply to the

Territory. It may do so at some stage in the

future, although by following the path of the

Chief Justice in Breavington, of course, no

differentiation would be made between choice of law

rules and the result of those choice of law rules,

as between a State and a Territory.

Whatever the correct basis for the majority

result in Breavington, it is our submission that it

is highly desirable to ensure that to the maximum
extent possible - and there will be cases where it

will not be possible to resolve it - a common

result will arise wherever the matter is tried,

including, of course, where the matter involves the

Territory. The Territory seems to have been the

source of a fair bit of this litigation, not only

Breavington and Perrett were Northern Territory

cases, so too was the case considered by the Court

of Appeal in New South Wales in Byrnes v Groote

Eylandt Mining Company and another which has not

yet, as far as I can ascertain, been referred to in

anyone's submissions, also a decision of the Court

of Appeal in New South Wales, called Guidera v
Government Insurance Office of New South Wales,

(1990) Aust Torts Reports page 68043, it is on our

list of authorities.

In that case, again it was an accident in the

Northern Territory, a motor vehicle accident, and

the connection with the Northern Territory was only

Miller(2) 176 10/4/91

that, that the locus of the wrong was in the

Northern Territory. The plaintiff chose not to sue

the owner or the driver of the motor vehicle, but

sued in New South Wales the Government Insurance

Office, pursuant to the specific provisions of the

Motor Vehicles (Third Party Insurance) Act. That

Act contained provisions in relation to discounting

which were less advantageous to the plaintiff than

if the law of the Northern Territory applied, and

the Court there in a joint judgment of the

Chief Justice Gleeson and Justices Clarke and

Handley were of the view that because the statutory

scheme was invoked, that it took with it those

provisions that related to discounting.

I bring it to the Court's attention because of the matters raised by Your Honour Justice McHugh in pointing to the fact that in deciding what law to

apply, ultimately the Supreme Court of New South

Wales in those circumstance is applying New South

Wales law to ascertain what the content of the law

applicable to the particular incident is. So that

at page 68048, in the first column, there is

reference there:

As was point out in Breavington the ultimate issue in a case such as the present

is one as to the law of New South Wales. To

paraphrase the words of Lord Pearson in the
passage from Chaplin v Boys last cited, a

choice of law in involved and, as it has to be made in the New South Wales court in which the action is brought, it must be governed by the

principles of New South Wales law for making

such a choice. If, in a given case, the law

of New South Wales is to the effect that the

rights and the liabilities of a party to an

action are to be determined by reference to

rules which have their origin in the law of

another jurisdiction, such as another State or

Territory of the Commonwealth of Australia, it

Wales court has regard to that other law it is not to be overlooked than when a New South	does so because of the dictates of the law of
New South Wales.

But that is distinguishable from the present

situation because there the plaintiff had

deliberately invoked a statutory jurisdiction in

New South Wales enabling him to sue the third party

insurer, and so he took the whole scheme, where

Your Honours favour the resolution of the problems

that arise, as set out by Justice Murray in Western

Australia in McKenna v KFV Fisheries, and with

respect, adopt His Honour's reasoning.

Miller(2) 177 10/4/91

Finally, Your Honours, the only matter I would

raise is that in discussion attention has been

drawn to the possibility of a statute saying that

it only operated, for example a limitation statute,

within the particular jurisdiction. It is apposite

to look at the limitation - not a time limitation,

but a limitation as to the damages recoverable,

which was the subject of the litigation in

Breavington, because it provided:

Subject to sub-section (2), no action for

damages shall lie in the Territory in respect

of the death of or injury to a resident of the

Territory.

And there, of course, the action was brought in

Victoria, but it seems to us that no member of the

Court thought that that phraseology was decisive.

In the end result we would submit that

limitations are inherently related to the cause of action and adopt the submissions of those who have

put similar propositions. We would rely, with

respect, on the approach of Your Honour

Justice Toohey in Breavington in another context at

page 161. There Your Honour said:

A defect of applying the lex fori, in its

domestic sense, to matters of substance is

that the rights and obligations of the parties

may be determined by a law which has no

connexion with the events giving rise to the

claim and little connexion with the parties

themselves. It encourages a plaintiff to

resort to a forum (assuming service of the

defendant so as to permit resort thereto)

expressly for the purpose of avoiding a

limitation that exists according to the law of

the place where the tort was committed. The

present case is a good illustration of this.

And, Your Honour, we see no point of distinction

here and, in our submission, the proper

limitations, whether it be section 35 or section 82

of the Workers Compensation Act, the proper

limitation to be applied is the South Australian

one in New South Wales. Those are out submissions,

if the Court pleases.

MASON CJ: Thank you, Mr Solicitor. Mr Solicitor for

Queensland.

MR DAVIES: May it please the Court, I hand up copies of our

outlines.

MASON CJ:	Thank you.	Yes.
Miller(2)	178	10/4/91

MR DAVIES:  Your Honours, the only submissions we wish to

advance relate to paragraph 3 of our outline.	The
applicant's case, which we tentatively support,

depends upon the correctness of those submissions

and the submissions which we want to make now

really are by way of qualification of the

propositions which we state in paragraph 3.

The propositions were made really in an

attempt to achieve uniformity of result wherever

the case is heard. However, we accept what

Your Honour Justice Brennan said that, first of

all, lack of uniformity only occurs because of a

statutory law. We accept also that uniformity,

which is achieved in consequence of those

propositions, is partial only. If, as we submit,

section 118 is not a choice of law provision, it

will achieve uniformity of substantive law to be

applied, including statutory law, only where there

is no statute of the forum which requires a

different result. Where that occurs, we accept

that the forum is obliged to apply its own statute.

So that in the examples that Your Honour gave

where, in the forum, there is a statute which

prohibits the cause of action, the forum is bound

by that statute and, similarly, we would submit, it

is bound by a statute which provides a shorter

period of limitation. Now, in that respect, we

give an answer different from that which our

learned friend, Mr Ellicott, gave, I think to that

question, by Your Honour. Your Honours, it also,

of course, will not achieve uniformity of

procedural law, except what Your Honour

Justice McHugh said in that respect, and we accept

that procedural law .can often have an important

effect on rights.

Unless those propositions are correct the South Australian limitation provisions, in our

respectful submission, will not apply here, and

even the uniformity we have suggested will not be

achieved.

We really make the point that except for the

desirability of uniformity there is no interest

which, I was going to say the States have, but

certainly which I expect only for Queensland, which

Queensland can have in the acceptance of those

propositions. In other words, it really cannot

matter from Queensland's point of view whether its

limitation statutes affect all actions brought in

Queensland, wherever the tort is committed, or all

torts committed in Queensland wherever the action

is brought.

Your Honours, if however, the limitation

provisions in this case are not merely procedural

Miller(2) 179 10/4/91

then for that reason, in our respectful submission,
they do not speak only to the courts in South

Australia. They are part of the lex delicti to be

applied in New South Wales, and they are applied

not because of any extraterritorial operation, but

because the appropriate law which is chosen to be

applied is South Australian law. The illustration

which my learned friend, the Solicitor-General for

the Northern Territory, gave of the legislation in

Breavington, in our respectful submission,

illustrates that point.

Your Honours, finally it may be that in making

the submission which we made in paragraph 3 of our

outline we have placed too high a premium on an
attempt to achieve uniformity, particularly when

that can be partial only. Another solution to that

may be agreement among the States or, as

Your Honour indicated tentatively in your judgment in Breavington, legislation pursuant to

section 5l(xxv).	They are our submissions, may it
please the Court.

MASON CJ:  Thank you, Mr Solicitor. Who is addressing next,

Mr Wheelahan or the Solicitor for the Commonwealth?

MR GRIFFITH: If it is convenient to the Court, I think

between myself and Mr Wheelahan we agreed that I

should, Your Honour.

MASON CJ: Yes, very well.

MR GRIFFITH: If I could hand the Court our submissions.

There is also a short volume of statutory

materials.

As we indicated on our appearance, our

intervention is limited to matters concerning
section 118. Perhaps turning first to the

construction point that we raise in paragraph 1 of

our contentions, we submit that the judgments of	this Court in Breavington are unanimous in their	acceptance of the proposition that whatever
section 118 means it is full faith and credit to
laws as they stand that is required, and not full
faith and credit to laws as notionally altered.
The section does not give a State law, we submit,
an extraterritorial operation which on its true
construction it does not purport to have. I will
not take the Court to the references which we give
to paragraph 1 for that proposition.

We would submit that unless the South

Australian legislation purports to apply in New

South Wales, no question of conflict with New South

Wales law arises, and no ground for the possible

application of section 118 exists. This, we

Miller(2) 180 10/4/91

submit, is a point of characterization and

construction, not of a prior categorization of the
provision of substantive or procedural, although
the traditional categorization of provisions for

the purpose of private international law may bear

heavily on its construction. As to this I could

give the Court references to Pedersen v Young, in

particular 110 CLR 165, Justice Kitto; pages 166

and 167, Justice Menzies.

So the label of "substantive or procedural"

may be a convenient method of expressing the

outcome of the process of construction, and in

saying this we would submit that our propositions

would seem to be in accordance with how those terms

were used by Your Honour Justice Deane in

Breavington, particularly at page 136.	I will not
read the Court that passage.	And if I may also

refer to page 139 on the issue of the construction

of the various provisions.

Turning then to the section 118 point itself,

our first proposition in paragraph 2 is that

section 118 requires no more than:

the laws, the public Acts and records, and the

judicial proceedings of every State -

being acknowledged throughout the Commonwealth and

be implemented in good faith where they are

otherwise valid and applicable by virtue of the

choice of law rules of the forum. Again, we submit

that this was an interpretation accepted by three

Justices of this Court in Breavington as being one

consistent with all previous decisions of this

Court - - -

GAUDRON J: But on that view does it do any more than the

common law? I mean, the common law in terms of

choice of law surely did not permit the application

in bad faith, for example, of the applicable rule?

MR GRIFFITH:  Your Honour, perhaps one answer to

Your Honour's question is, yes, because of the

example of Merwin itself. It has already been

sufficient referred to in argument hitherto, but

one has in that case, Your Honour, a marking off an

incapacity of a State to rely upon its own issue of

public policy to refuse to give recognition to the

law of a State.

GAUDRON J: But that does allow some substantive operation

beyond the ordinary choice of law rules?

MR GRIFFITH:	Of course, Your Honour, there are other aspects; penal laws, taxing laws, issues of that
sort, Your Honour, but it might be better,

Miller(2) 181 10/4/91

Your Honour, to enlarge the submissions and come

back to the negative rather than to cut off all

aspects of the positive, if Your Honour would

permit me to do that, but I do accept Your Honour's

qualification that it is intended that proposition

admits what as common ground is the application of

section 118 hitherto. Perhaps, if I could get back

to an anchor, Your Honour, and say, we would start

where three Justices of this Court were in

Breavington and having anchored ourselves on that

rock seek to go a little further. But we do,

Your Honour, as I admitted as Your Honour asked me

the question, accept of course the Merwin decision.

But we say that this approach is consistent

with the traditional and current approach as

adopted by the Supreme Court of the United States

in relation to the United States consitutional

provisions which - indeed, the language of this

proposition in paragraph 2 is one which reflects

very closely the language of Justice Stephens in

Phillips Petroleum Co v Shutts, 472 US 797 and, in

particular, at page 834-835. This approach -

interpretation - gives the section a substantive

operation consistent with federal comity without

limiting the capacities of the States or the

Commonwealth to engage in legislative reform of choice of law rules in the national interest.

Enlarging on this, in paragraph 3, we make two

propositions derived from the language in context of the section in paragraph (a) and paragraph (b) which stand by themselves as propositions. As to

paragraph (c) we do contrast section 118 with

section 109 because the section does not refer to

inconsistency between laws and provides no formula

for its resolution.

In the Port MacDonnell case, 160 CLR 374 this

Court said:

The Constitution contains no express

paramountcy provision similar to section 109
by reference to which conflicts between
competing laws of different States are to be

resolved.

In our submission, it is wrong to draw any analogy

between section 118 and section 109. Section 118,

we submit, is premised on the essential quality of

State law whereas section 109, read with covering

clause 5 of the Constitution, is premised on the

essential supremacy of the Commonwealth.

Section 109 specifically and explicitly refers to

inconsistency between Commonwealth and State laws

and provides a clear constitutional formula for its

resolution. As to that we contrast section 118.

Miller(2) 182 10/4/91

We submit that nothing is to be gained from

characterizing section 118 or section 109, for that

matter, as a guarantee that an individual will not

be subject to contemporaneous but inconsistent

legislative demands.

Chapter Vas a whole, like section 92, is

concerned with the structural position of the incidental effect on individual liberty, but we

submit that individual liberty is not its focus.

If analogy is to be drawn within the context of

Chapter V, we would submit it lies between

section 118 and the section immediately preceding

it, section 117. Both are drawn from Article IV of

the Constitution of the United States and both
have, as their essential focus, the enactment of

against the citizens of another State.

rules of comity within the federal system.

Section 118, we submit, similarly does no more

within its substantive operation than prevent

discrimination by a State against the laws, public

acts, records and judicial proceedings of another

State.

Turning then to our proposition in

paragraph 4, we submit that there is nothing in the

structure of the Australian Constitution, or the
nature of Australian federalism, that requires that
the substantive rules applicable to determine the
legal conflicts of conduct must be the same

irrespective of where litigation occurs, and we

refer to that famous dictum of Justice Holmes in

dissent in Lochner v New York, 198 US 45, and would

say that the Australian Constitution no more enacts

Kelsen's General Theory of Law and State than the

14th amendment of the United States Constitution

enacts Mr Herbert Spencer's Social Statistics.

Apart from the autochthonous expedient of allowing

State courts to be invested with federal

jurisdiction under section 77(iii), we submit

Chapter III assumes the existence of separate State

and federal courts, separately administering State

and federal laws. Chapter V of the Constitution,

we submit, assumes the continued existence of the

States as distinct legal and political entities

having equal status.

As the Court reaffirmed in Union Steamship Co

of Australia Limited v King, 166 CLR 1, the States

have always had the capacity to enact

extraterritorial legislation and have therefore

always have the capacity to enact laws which will

conflict in the territorial operation. However,

apart from covering clause V and section 109, we

submit there is nothing in the Constitution that

Miller(2) 183 10/4/91

expressly requires a State to defer to any system of lawother than its own. Any attempt to distill from the vague and general language of section 118,

a comprehensive system of federal choice of law
rules, we see as firstly being impractical and

unnecessary and secondly, as something that may or

have the effect of inhibiting legislative reform

either by an exercise of co-operative federalism

between the States and the Commonwealth such as

presently being engaged in by the current

Australian Law Reform Commission reference, or

alternatively by an enactment under section 51(xxv)

of the Constitution, although, of course, we would

accept very much what was said by Your Honours,

Justice Wilson and Justice Gaudron, in Breavington, indicating that the application of section 118

would be subject to the exercise of the power under

section 51 ( xxv) .

The existence of a unified system of common

law in Australia and the position of the High Court

as the sole final Court of Appeal, we submit,

provides another reason for resisting the

temptation to constitutionalize choice of law

rules. To the extent that those rules are common

law based, they are capable of adaption and

modification to meet the needs of the Australian

federal system without resort to constitutional

overlay, and we would refer to Breavington as an
example as to that and certainly to some of the

arguments made hitherto yesterday and today to

indicate the scope for this Court to examine the

common law rules in so far as they apply between

the States within Australia.

To seek to constitutionalize these choice of

laws based upon a notion of the nature of the

federal compact, we submit, would also run counter

to the foundation of Australian constitutional

jurisprudence. We have mentioned the Boilermakers'

case this morning. Perhaps at the close of play

may I refer briefly to the Engineers' case,

28 CLR 129. In that case, dealing with the basis

of rejecting the old doctrine of immunity of

instrumentalities at page 145 the Court said:

It is an interpretation of the Constitution

depending on an implication which is formed on

a vague, individual conception of the spirit

of the compact, which is not the result of

interpreting any specific language to be

quoted, nor referable to any recognized

principle of the common law of the

Constitution, and which, when stated, is

rebuttable by an intention of exclusion

equally not referable to any language of the

instrument or acknowledged common law

Miller(2) 184 10/4/91

constitutional principle, but arrived at by

the Court on the opinions of Judges as to

hopes and expectations respecting vague

external conditions. This method of

interpretation cannot, we think, provide any

secure foundation for Commonwealth or State
action, and must inevitably lead - and in fact

has already led - to divergencies and

inconsistencies more and more pronounced as

the decisions accumulate.

This is similar, of course, to the language of

Justice Scalia in the Sun Oil Company case,

486 US 727-8 a case to which ample reference has

been made, where at 766 in the Lawyers' Edition, he

referred to the constitutionalizing of choice of

law rules as involving the court embarking on an

enterprise with no compass to guide beyond its own

perceptions as to what seemed desirable.

To the extent that any relevant general

principles may be inferred from Chapter V of the
Constitution, we submit that in the exercise of the State powers and capacities, including the power to prescribe choice of law rules to operate within

State courts, it is to be unimpeded subject to the

express limitations set out in the Constitution and

to the existence of inconsistent Commonwealth
legislation.

As Your Honour Mr Justice Brennan pointed out in Breavington at page 116 to 117 an expansive

interpretation of section 118 would not only

undermine that principle, but would potentially

create conflict between State laws where none would

otherwise exist.

Turning then to paragraph 6 of our

contentions, we submit that the majority judgment

in the Corporations case, 64 ALJR 157, in

particular at page 160, emphasizes that it is

legitimate to have regard to the Convention Debates

for the purpose of determining the subject-matter

of a provision of the Constitution. We have

included extracts from the Convention Debates in

the volume of supplementary materials which has

been distributed to the Court. They, of course, as

we know, contain scant reference to section 118,

but they certainly contain no suggestion that its
purpose was substantially to effect the established common law principles of choice of law, or that its subject-matter was to be substantially different

from that which in 1900 was, and always has been

attributed to the equivalent provisions of the

United States Constitution.

Miller(2) 185 10/4/91

We refer specifically only to one passage of the Adelaide Debates and that appears at pages 18

and 19 of the materials which the Court has. In

answering a question by Mr Dobson, Mr Barton quotes

from Baker's "Annotated Constitution of the United

States", and then states:

So I take it that the effect of this clause
would be to cause the courts of the

Commonwealth to take judicial notice of the

laws, acts, and records of the States without

the necessity of requiring them to be proved

by cumbrous evidence.

At the foot of that page Mr Barton again refers to
a quotation from Baker's "Annotated Constitution of

the United States", and says:

This provision and the laws of Congress

in relation thereto establish a rule of

evidence rather than of jurisdiction.

Mr Isaacs then refers him to what is now

section Sl(xxv) in terms:

The Commonwealth Parliament might possibly exercise the power to give the same effect

throughout the Commonwealth to the judgment of
the State as is given in the State to the

judgment itself.

And Mr Barton responds:

It is more than possible that the

hon. member's suggestion is correct. One

clause means that as a matter of evidence

judicial notice is to be taken; the other

means that there is legislative power, not

only to define the manner in which that shall

be done, but it may also mean further than

cause recognition of these matters in that, that there is a legislative power to substance as well as in evidence.

And we would see this as being, in essence, the

construction for which we contend before the Court

today.

McHUGH J: Just by the way, is Sl(xxv) the source of

sections 79 and 80 of the Judiciary Act?

MR GRIFFITH:  It could be a source, Your Honour. May I

reflect on the definite article overnight. It

could go to support it, yes, Your Honour, in our

submission, but I think we could pick up other

support. May I reflect on that, Your Honour?

Miller(2) 186 10/4/91

DEANE J:  You would submit, would you, that recognition was

a stronger word that full faith and credit?

MR GRIFFITH:  Yes, Your Honour. Your Honour, we would

submit that that carries with it, as has been
regarded in the United States with respect to the

United States provision appearing in one paragraph,

Your Honour, the power to enact comprehensive

provisions providing for choice of law.

DEANE J:	And that to recognize is to do more than to give
full faith and credit to something.

MR GRIFFITH: That would be our submission, yes,

Your Honour. We see it as very much substantive

power and one, Your Honour, that provides a

mechanism to provide the appropriateness of result

within the operation of a federal system, and as I

mentioned, Your Honour, when one looks at the

Australian Law Reform Commission discussion paper

No 44, which is extracted at page 33 to page 76 of

the materials, one sees that that exercise

discusses, Your Honour, whether or not a

uniformative approach between the States and the

Commonwealth and the States and the Territories can

be obtained by an exercise in co-operative

legislation or, alternatively, by exercise of the

power under section Sl(xxv). It seems the views

taken, Your Honour, we would agree with, that it

could proceed either way and it matters perhaps not

which is used. We do submit, Your Honour, that

there is undoubtedly plenary power under
paragraph 25 to obtain that result.

In this, as in perhaps more than any other

matter, it is appropriate that the examination of
these problems proceed on the basis of amiable
co-operation to resolve difficult problems which,
as has already been put to the Court, are not to be
resolved merely by considering in isolation the
problem of a personal injury occuring in one

jurisdiction and litigated in another.

McHUGH J: Well, perhaps section Sl(xxv) does little more

than put in more modern language the last limb of

Article IV section 1 of the United States

Constitution which speaks about Congress made by general laws prescribed the manner in which such

acts, records and proceedings shall be proved and

the effect thereof.

MR GRIFFITH: Yes, Your Honour, that is so. It is clear

enough that the provisions of the American Article

were split up, Your Honour, and one was stated in

the form of section 118, providing as it does, and

the other aspect, Your Honour, was picked up as the

plenary power under paragraph (xxv). So, we would

Miller(2) 187 10/4/91

accept and endorse that approach, Your Honour. Of

course, the Sun case indicates the extent to which

that is accepted in America.

Perhaps, before indicating, this might be an

appropriate time to the Court, could I quickly

mention also Quick and Garran?

MASON CJ:  I was just going to ask you, is the answer you

gave to Justice McHugh consistent with your

submission in paragraph 8?

MR GRIFFITH: Well, Your Honour, I had not got to

paragraph 8.

MASON CJ: Yes, well, I was asking whether, in advance, you

were abandoning it?

MR GRIFFITH:  The last answer, Your Honour?

MASON CJ: Yes, because you say section 5l(xxv) of the

Constitution provides a sufficient source of

Commonwealth legislative power.

MR GRIFFITH: Yes. Well, Your Honour, I did not intend to

be inconsistent with that. Did I appear to be?

MASON CJ: Yes, I thought you were indicating that

section 5l(xxv) had no greater operation than the
relevant provision in the United States
Constitution article in your response to

Justice McHugh.

MR GRIFFITH:  I had in mind, Your Honour, what was said

about that article in Sun Oil. Can I take the

Court to that, which appears on page 756 of the

Lawyers Edition report. Your Honour, we seem to

have hovered around this part but my learned

friend, Mr Ellicott, referred to the paragraph on

page 755 which summarized the petitioner's

contentions.	Then follows, Your Honour, the
court's examination, on page 755, of the Erie doctrine in jurisprudence and how they distinguish	the Guaranty principles not applying to full faith
and credit. I will not take the Court to that
other than to indicate that that picks up very much
where my learned friend, Mr Ellicott, left that
issue of the Erie principle and whether that applies in full faith and credit context.

Then, on page 756 comes the reference I

earlier referred to of Mr Justice Scalia referring

to having no guide "beyond our own perceptions".

Then on the right-hand column he goes on:

In sum, long established and still

subsisting choice-of-law practices that come

Miller(2) 188 10/4/91

to be thought, by modern scholars, unwise, do

not thereby become unconstitutional. If

current conditions render it desirable that

forum States no longer treat a particular

issue as procedural for conflict of laws

purposes, those States can themselves adopt a

rule to that effect ..... or it can be proposed

that Congress legislate to that effect under

the second sentence of the Full Faith and

Credit Clause ..... It is not the function of

this Court, however, to make departures from

established choice-of-law precedent and

practice constitutionally mandatory.

So, Your Honour, we were picking up from that,

Your Honour, the acceptance of the Court, at least three years ago, Your Honour, that there is this

capacity to exercise this power. And we would say

similarly, Your Honour, there is a capacity which

is discussed briefly in the Law Reform Commission

paper and it is a matter of probably open choice, amiable co-operation with the legislative schemes

such as cross-vesting or by action by the

Commonwealth after discussions under the power.

Would the Court permit me to mention briefly,

before perhaps indicating it is an appropriate

time, the reference - - -

MASON CJ:  Mr Solicitor, it may be convenient to adjourn now

and you can resume tomorrow at 10.15 am.

MR GRIFFITH: Yes. Sorry, I would just indicate I was in

mid-sentence on this point but I am quite happy to

stop right now, Your Honour.

AT 4.20 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 11 APRIL 1991.

Miller(2) 189 10/4/91