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Published online by Cambridge University Press: 24 January 2025
There has been renewed interest in the constitutional dimensions of choice of law. This interest was reignited by the High Court’s decision in John Pfeiffer Pty Ltd v Rogerson, where the Court appealed to ‘constitutional factors’ as guiding the selection of the lex loci delicti as a common law choice of law rule in intra-national tort cases. While the central importance of the overarching constitutional framework to intra-national choice of law questions may be accepted, the High Court struggled to identify with precision the relevance of constitutional provisions and implications for the choice of law inquiry. In particular, it failed to respond adequately to concerns expressed in earlier majority judgments about the continued capacity of State legislatures to direct their courts as to the legal standards to be applied in a case involving out-of-state elements. Because of the fact pattern that arose in Pfeiffer, the High Court was able to avoid the more difficult questions that arise in intra-national choice of law cases, particularly the question of which legal standards apply when there is an ‘inconsistency’ between two or more State legislative provisions.
I would like to thank Jim Davis, Leslie Zines, Robert Burrell, Graeme Hill, Marita Rendina, Heather Roberts, Amelia Simpson and the anonymous referees for their very helpful comments. Many of the ideas for this paper were developed during my time at the Cornell Law School. I would like to thank the Cornell Law School for the Fellowship opportunity provided to me, and thank the Honourable Justice Michael Kirby AC CMG, Peter Bayne, Jim Davis and David Hambly for their support.
1 See Stephen, Gageler, ‘Private Intra-national Law: Choice or Conflict, Common Law or Constitution?’ (2003) 23 Australian Bar Review 184Google Scholar; Graeme, Hill, ‘Resolving a True Conflict Between State Laws: A Minimalist Approach’ (2005) 29 Melbourne University Law Review (forthcoming)Google Scholar; Graeme, Hill and Adrienne, Stone, ‘The Constitutionalisation of the Common Law’ (2004) 25 Adelaide Law Review 67Google Scholar; Jeremy, Kirk, ‘Conflicts and Choice of Law within the Australian Constitutional Context’ (2003) 31 Federal Law Review 247Google Scholar; JusticeBradley, Selway, ‘The Australian “Single Law Area“’ (2003) 29 Monash University Law Review 30Google Scholar.
2 (2000) 203 CLR 503 ('Pfeiffer’).
3 (1988) 169 CLR 41 ('Breavington’).
4 Ibid 121.
5 Ibid.
6 Ibid 135.
7 Ibid 129.
8 Ibid 137. Justice Deane adhered to this approach in McKain v R W Miller & Company (South Australia) Pty Ltd (1991) 174 CLR 1 ('McKain’) and Stevens v Head (1993) 176 CLR 433 ('Stevens’), adding in McKain that ‘[i]n a case where there is a substantive nexus with the territory of more than one State, the determination of predominant territorial nexus may well involve a discretionary weighing of competing factors, including considerations of what is fair and just, in which the rules of private international law may be important by way of analogy': at 53.
9 Breavington (1988) 169 CLR 41, 130. In his Honour's judgment in Breavington, Deane J slid from discussing territorial limitations on State legislative power to discussion of conflict resolution. Consequently, it is not entirely clear whether his Honour sought to impose a territorial limitation on State legislative power (thereby rendering an extra-territorial law invalid if it did not satisfy the predominant territorial nexus test), or whether territoriality simply informed the choice of law process. The better view is that his Honour saw invalidity in the horizontal context in the same way as ‘invalidity’ operates under s 109 of the Constitution.
10 Ibid 98. Justice Gaudron repeated this view in McKain (1991) 174 CLR 1: ‘there is only one body of law which applies to any given set of facts. That is achieved by covering cl. 5 and by ss. 106, 107, 108, 109 and 118 in Ch. V of the Constitution which, when taken together, leave no room for the notion that the one set of facts might, within Australia, simultaneously be subject to different legal regimes': at 55.
11 Breavington (1988) 169 CLR 41, 88, 91.
12 Ibid 98.
13 ‘[A] reconsideration of Breavington leads me to think that some aspects of what Wilson J. and I then said might conveniently be stated in different terms': McKain (1991) 174 CLR 1, 55.
14 Ibid 56.
15 For example, where the place of some act is entirely fortuitous.
16 McKain (1991) 174 CLR 1, 56. Justice Gaudron adhered to that view in Stevens (1993) 176 CLR 433, 464.
17 McKain (1991) 174 CLR 1, 58.
18 (1994) 179 CLR 463 ('Goryl’).
19 Ibid 476.
20 Breavington (1988) 169 CLR 41, 78.
21 Ibid 73, 76.
22 Ibid 77.
23 Ibid 76. For example, where the place of the accident is merely fortuitous.
24 Ibid 77.
25 A view that Sir Anthony continues to hold: see SirAnthony, Mason, ‘Choosing Between Laws’ (2004) 25 Adelaide Law Review 165, 171Google Scholar.
26 Breavington (1988) 169 CLR 41, 82.
27 (1991) 174 CLR 1, 31.
28 Ibid, quoting Breavington (1988) 169 CLR 41, 150.
29 Although probably implicit in the works of earlier scholars, this choice of law objective was most coherently advanced by Friedrich von Savigny: Private International Law: A Treatise on the Conflict of Laws and the Limits of Their Operation in Respect of Place and Time (William Guthrie trans, 1869). It is true, as the joint judgment points out in Pfeiffer ((2000) 203 CLR 503, 536 [74] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ)), that Savigny adopted a forum-centred approach in relation to delictual liability (see Savigny at 171–4). However, that was a consequence of Savigny's failure to apply his own system to tort cases, instead considering them to be more in the nature of criminal acts, thereby attracting forum law. For a discussion of the historical connection between tort law and criminal law, see Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 ('Zhang’), 510 [46] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
30 See Symeon, Symeonides, ‘American Choice of Law at the Dawn of the 21st Century’ (2001) 37 Willamette Law Review 1, 4Google Scholar.
31 Ibid 5. An exception to this is Mason CJ, who thought that the law's underlying policy might be a relevant factor in applying the exception, but considered that ‘the interests of the parties themselves are likely to be more material in ascertaining whether another law has a closer connexion with the parties and the occurrence with respect to the issue to be litigated': Breavington (1988) 169 CLR 41, 77.
32 Although, as indicated, Gaudron J resiled from that strict position in McKain: see above n 13 and accompanying text.
33 See Savigny, above n 29, 89, 96.
34 See also Kirk, above n 1, 265 ('Both judges thus moved towards applying an approach which might be labeled a search for the “proper law of the dispute“’). However, it is not entirely clear what their Honours’ final views were. Although both accepted the need for some flexibility in determining the applicable body of law (McKain (1991) 174 CLR 1, 53 (Deane J), 56 (Gaudron J)), in Goryl (1994) 179 CLR 463, 476 their Honours seemed to suggest a fixed place of tort rule ('where an accident occurs in one State but is the subject of proceedings in another, s. 118 requires … that liability be determined and damages be calculated in accordance with the law of the State in which the accident occurred’).
35 Breavington (1988) 169 CLR 41, 111 (Brennan J).
36 Ibid 142 (Dawson J).
37 Pederson v Young (1964) 110 CLR 162, 170 (footnote in original; McKain (1991) 174 CLR 1, 36 n 40).
38 McKain (1991) 174 CLR 1, 36.
39 Ibid. See also Breavington (1988) 169 CLR 41, 112 (Brennan J).
40 Breavington (1988) 169 CLR 41, 116–17 (Brennan J).
41 McKain (1991) 174 CLR 1, 36.
42 Ibid 37. As Dawson J said in Breavington (1988) 169 CLR 41, s 118 ‘is not directed to a conflict of laws; where there is a conflict it makes no choice or, to put it another way, does not require the application of a law which is not otherwise applicable': at 150.
43 Ulric Huber, ‘De Conflictum Legum Diversarum in Diversis Imperiis', see English translation in Ernest, Lorenzen, Selected Articles on the Conflict of Laws (1947) 137, 162Google Scholar.
44 Joseph, Story, Commentaries on the Conflict of Laws (5th ed, 1857) 31Google Scholar, although Story saw the notion of comity as informing the formulation of forum common law rules that directed a judge to apply foreign law.
45 Albert, V Dicey, ‘On Private International Law as a Branch of the Law of England’ (1890) 6 Law Quarterly Review 1Google Scholar, 1–21; Albert, V Dicey, ‘On Private International Law as a Branch of the Law of England (Continued)’ (1891) 7 Law Quarterly Review 113–24Google Scholar.
46 Joseph, Beale, A Treatise on the Conflict of Laws (1935) 1967–9Google Scholar.
47 See, eg, Cuba Railroad Co v Crosby, 222 US 473, 478–9 (1912); Slater v Mexican National Railroad Co, 194 US 120, 126 (1904); American Banana Co v United Fruit Co, 213 US 347 (1909); New York Life Insurance Co v Dodge, 246 US 357 (1918).
48 Walter, Cook, The Logical and Legal Bases of the Conflict of Laws (1949) 20–1Google Scholar.
49 See, eg, Guinness v Miller, 291 Fed 769, 770 (DCNY, 1923), aff'd 299 Fed 538 (2nd Cir, 1924), aff'd in part, rev'd in part Hicks v Guinness, 269 US 71 (1925).
50 Chief Justice Mason took a similar view in McKain (1991) 174 CLR 1, 31.
51 Ibid 36.
52 Carl, Georg von Wächter, ‘On the Collision of Private Laws of Different States', reproduced in (1964) 13 American Journal of Comparative Law 417, 418Google Scholar.
53 Ibid.
54 Ibid 421.
55 McKain (1991) 174 CLR 1, 37; Stevens (1993) 176 CLR 433, 453.
56 McKain (1991) 174 CLR 1, 36.
57 A result seen by Brennan J as ‘inimical to the high purpose of a national Constitution': Breavington (1988) 169 CLR 41, 117.
58 For convenience, I will refer to the leading joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ as the judgment of the Court.
59 The Court left to one side the choice of law rule for international torts: Pfeiffer (2000) 203 CLR 503, 514 [2]. See also 550 [120], 560–1 [150] (Kirby J). Subsequently, in Zhang (2002) 210 CLR 491, the Court adopted the lex loci delicti for international torts.
60 See also Lipohar v The Queen (1999) 200 CLR 485 ('Lipohar’), 503 [37] (Gleeson CJ), 515 [73], 526 [102]–[103], 532 [116] (Gaudron, Gummow and Hayne JJ), 551 [165], 552–3 [169]–[170] (Kirby J).
61 Pfeiffer (2000) 203 CLR 503, 534 [65]. See also at 550 [121] (Kirby J).
62 Ibid 534 [65].
63 The Court saw the notion of comity as one that supported the local theory: ibid 527 [41]. Whether this is correct, or whether the local law theory was advanced as an alternative justification for the application of foreign law out of discontent for the idea of comity, the High Court has clearly rejected both rationales.
64 (1991) 174 CLR 1, 34 (Brennan, Dawson, Toohey and McHugh JJ).
65 Pfeiffer (2000) 203 CLR 503, 533 [63]. Justice Kirby also rejected direct resort to the Constitution: ‘[n]either the provisions of the Constitution [footnoting ss 117 and 118] nor the implications necessarily derived from its language and structure yield a solution': at 546 [108].
66 Ibid 528 [44]. The Court again accepted that there is one common law for Australia: at 518 [15].
67 Ibid 535 [72].
68 Ibid 539 [83]. In truth, the lex fori is no choice of law approach at all.
69 See Savigny, above n 29.
70 Pfeiffer (2000) 203 CLR 503, 538 [79]. Justice Kirby also considered that ‘[t]he goals that should apply to a “choice of law” rule are clear. It should offer results that are certain and predictable': at 555 [136]. For the possibility that Pfeiffer may still allow forum shopping in relation to some torts, see J L R, Davis, ‘Is There Still Scope for Forum Shopping After John Pfeiffer v Rogerson?’ (2002) 20 Australian Bar Review 107Google Scholar.
71 Pfeiffer (2000) 203 CLR 503, 539 [82]. See also at 560 [150] (Kirby J).
72 Ibid 537 [76].
73 See, eg, Gary, Simson, ‘Choice-of-Law Revolution in the United States: Notes on Rereading von Mehren’ (2003) 36 Cornell International Law Journal 125Google Scholar; Harold, L Korn, ‘The Choice-of-Law Revolution: A Critique’ (1983) 83 Columbia Law Review 772Google Scholar.
74 Beale, above n 46.
75 Douglas, Laycock, ‘Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law’ (1992) 92 Columbia Law Review 249, 256Google Scholar.
76 See, eg, Cuba Railroad Co v Crosby, 222 US 473, 478–9 (1912); Slater v Mexican National Railroad Co, 194 US 120, 126 (1904); American Banana Co v United Fruit Co, 213 US 347 (1909); New York Life Insurance Co v Dodge, 246 US 357 (1918).
77 See discussion in Symeon, Symeonides, ‘General Report’ in Symeon, Symeonides (ed), Private International Law at the End of the 20th Century: Progress or Regress? (2000) 3, 22Google Scholar.
78 See discussion in Elliott, Cheatham and Willis, Reese, ‘Choice of the Applicable Law’ (1952) 52 Columbia Law Review 959, 959Google Scholar.
79 See discussion in Gary, Simson, Issues and Perspectives in Conflict of Laws: Cases and Materials (3rd ed, 1997) 14Google Scholar.
80 Jan, Kropholler and Jan, von Hein, ‘From Approach to Rule-Orientation in American Tort Conflicts?’ in James, Nafziger and Symeon, Symeonides (eds), Law and Justice in a Multistate World (2002) 317, 321Google Scholar.
81 Friedrich, Juenger, Choice of Law and Multistate Justice (1993) 148-50Google Scholar.
82 David, Cavers, The Choice of Law Process (1964) 65Google Scholar. See also Brainerd, Currie, Selected Essays on the Conflict of Laws (1963) 106Google Scholar.
83 Albert, Ehrenzweig, A Treatise on the Conflict of Laws (1962)Google Scholar; Currie, above n 82, 119.
84 Currie, above n 82.
85 191 NE 2d 279 (1963).
86 Ibid 285.
87 Cheatham and Reese, above n 78; Hessel, Yntema, ‘The Objectives of Private International Law’ (1957) 35 Canadian Bar Review 721Google Scholar; Robert, Leflar, ‘Choice-Influencing-Considerations in Conflicts Law’ (1966) 41 New York University Law Review 267Google Scholar; American Law Institute, Restatement (Second) of Conflict of Laws (1971) ('Second Restatement’).
88 Symeonides, above n 30, 26.
89 Robert, Leflar, American Conflicts Law (3rd ed, 1977) 195Google Scholar.
90 Luther, L McDonald III, ‘Toward Application of the Best Rule of Law in Choice of Law Cases’ (1984) 35 Mercer Law Review 483Google Scholar.
91 Juenger, above n 81.
92 (2000) 203 CLR 503, 537 [77]. See the articles referred to by the Court: at n 100; and the articles referred to by Kermit, Roosevelt III, ‘The Myth of Choice of Law: Rethinking Conflicts’ (1999) 97 Michigan Law Review 2448Google Scholar, 2466 n 96. See also Zhang (2002) 210 CLR 491, 516 [63].
93 191 NE 2d 279 (1963), see above n 85 and accompanying text.
94 Pfeiffer (2000) 203 CLR 503, 537 [76]. See also at 559 [147] (Kirby J).
95 Ibid 537 [77].
96 Ibid 540 [88].
97 Ibid 527 [41].
98 Justice Kirby also rejected the double actionability rule: ibid 547 [113], 554–5 [135]. His Honour stated that: ‘[i]t is insufficiently attentive to the federal context in which an Australian choice of law rule must be expressed. It responds inadequately to the increased mobility of people, goods and services within Australia and to the need for an efficient use of Australia's integrated court system': at 555 [135].
99 Ibid 576 [201]–[202].
100 Ibid 515 [3].
101 Ibid 544 [102]-[103]. See also at 564 [163] (Kirby J). Pfeiffer concerned a proceeding in the ACT Supreme Court. The ACT did not have relevant legislation affecting common law choice of law rules and, thus, it was unnecessary for the Court to consider the forum statutory modification limb of s 80. Similarly, nor was it necessary for the Court to give a conclusive view as to the relationship between ss 79 and 80 of the Judiciary Act 1903 (Cth) ('Judiciary Act’) for choice of law purposes. Referring to Musgrave v Commonwealth (1937) 57 CLR 514, the Court indicated that it has been understood that ‘by operation of either or both ss 79 and 80, the common law choice of law rules apply to an action in tort brought in federal jurisdiction': ibid 531 [55] (emphasis added); see also at 563 [159] (Kirby J). Subsequently, in Blunden v Commonwealth of Australia (2003) 203 ALR 189 ('Blunden’), the joint judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ emphasised that one turns first to s 80 and then to s 79 only if necessary in a particular case: at 194 [18]. Blunden also highlights that the common law choice of law rules will be picked up by s 80, with substantive common law rules being picked up only if there is no relevant common law choice of law rule: at 194 [18].
102 Pfeiffer (2000) 203 CLR 503, 540 [87]. See also at 562–3 [157] (Kirby J). His Honour, however, left open the possibility that a different rule should be used where ‘acts or omissions occurred in more than a single law area of Australia': at 563 [158].
103 Ibid 535 [67]. Justice Kirby also referred to various constitutional factors pointing to a rejection of the double actionability rule and adoption of the lex loci delicti, eg, at 546 [108], 550–1 [123]–[124]. Similar ground was covered by Gummow J writing extra-curially: JusticeW M C, Gummow, ‘Full Faith and Credit in Three Federations’ (1995) 46 South Carolina Law Review 979Google Scholar.
104 (2000) 203 CLR 503, 515 [3]. See also Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 ('Mobil’), 34 [48] (Gaudron, Gummow and Hayne JJ).
105 Pfeiffer (2000) 203 CLR 503, 535 [70]. However, the judgment is a little ambiguous as their Honours earlier said that ‘the common law of Australia includes the rules for choice of law, again subject to statutory modification': at 515 [3]. It is unclear how this statement sits with the Court's express statement that the question was left open. It is possible that their Honours were referring to statutory modification by Commonwealth legislation. The Court's decision in Blunden did not address either question directly. There was some discussion that appears, on its face, to be relevant to the second question. In a joint judgment, Gleeson CJ, Gummow, Hayne and Heydon JJ said that ‘the application of any rules of the common law will, in the terms of s 80, be subjected to any modification, in the present case, by the statute law in force in the territory': (2003) 203 ALR 189, 194 [18] (emphasis added). Since s 80 picked up the substantive ACT law of limitation (in the absence of relevant choice of law rules), the reference in the passage to ‘common law’ (rather than to ‘common law choice of law rules’ as appears elsewhere in the passage) and the emphasis on the circumstances of the case suggest that their Honours were not talking about the statutory modification of choice of law rules.
106 If pursued on its own.
107 As in Pfeiffer, where an assertion about s 118 attracted federal jurisdiction.
108 If the tort claim and a related federal claim constitute the same ‘matter’ within the jurisdiction of a federal court.
109 Pfeiffer (2000) 203 CLR 503, 536–7 [75], 538 [79], 539 [84] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
110 Ibid 536–7 [75], 538 [79], 540 [87].
111 Ibid 528 [44].
112 See, eg, Re Wakim; Ex parte McNally (1999) 198 CLR 511 ('Re Wakim’), 540 [2] (Gleeson CJ), 548–9 [34] (McHugh J).
113 See also Pfeiffer (2000) 203 CLR 503, 550–1 [123] (Kirby J). Although the desire for certainty and predictability to meet insurer expectations is readily apparent, it is not entirely clear how non-insurer parties would have any expectations in relation to unexpected tortious events. See also in this regard: Hill and Stone, above n 1, 78; Gary, Davis, ‘John Pfeiffer Pty Ltd v Rogerson: Choice of Law in Tort at the Dawning of the 21st Century’ (2000) 24 Melbourne University Law Review 982Google Scholar, 999–1001.
114 See Australian Communist Party v Commonwealth (1951) 83 CLR 1 ('Communist Party Case’), 193 (Dixon J); cf Kartinyeri v Commonwealth (1998) 195 CLR 337, 381 (Gummow and Hayne JJ); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 513 [103] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
115 Cf Kirk, above n 1, 269.
116 Jeffrey, Goldsworthy, ‘Legislative Sovereignty and the Rule of Law’ in Tom, Campbell, K D, Ewing and Adam, Tomkins (eds), Sceptical Essays on Human Rights (2001) 61Google Scholar, 64–5.
117 Kartinyeri v Commonwealth (1998) 195 CLR 337, 381 (Gummow and Hayne JJ); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 513 [103] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); cf Communist Party Case (1951) 83 CLR 1, 193 (Dixon J).
118 R v Kidman (1915) 20 CLR 425; Polyukhovich v Commonwealth (1991) 172 CLR 501.
119 Pfeiffer (2000) 203 CLR 503, 535 [67].
120 Ibid 518 [15], citing Mabo v Queensland [No 2] (1992) 175 CLR 1, 15; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 556; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 566; Lipohar (1999) 200 CLR 485, 505, 509 (Gaudron, Gummow and Hayne JJ), 551–2 (Kirby J). See also Leslie, Zines, ‘The Common Law in Australia: Its Nature and Constitutional Significance’ (2004) 32 Federal Law Review 337, 344-7Google Scholar.
121 Re Wakim (1999) 198 CLR 511, 574 [110] (Gummow and Hayne JJ). Although, even this conclusion may be subject to some doubt. Having an integrated judicial system with the High Court at its apex does not mean that it is a unitary legal system like the one envisaged by Dixon, J in his lecture on ‘The Law and the Constitution’ in Jesting Pilate (1965) 38, 53Google Scholar. Thus, it may be argued, that there is nothing more than goals of judicial expediency or convenience requiring the common law to be a single body of law. See Lipohar (1999) 200 CLR 485, 574–84 (Callinan J).
122 Justice Kirby certainly rejected ‘the integrated court system and the unified common law’ (Pfeiffer (2000) 203 CLR 503, 546 [108] n 212) as constitutional factors that would ‘yield a solution': at 546 [108]. Compare the view put forward by Simson that the integrated nature of the US judicial system is sufficient to require uniformity of outcome:
the Framers reasonably may have concluded that an integrated judicial system would provide an important adhesive among the various states. Under this analysis, the Framers insisted on such a system at least in part because they saw it as an essential reminder to the states that, though separate in many ways, they are above all integral parts of a nation that frequently must act as one.
Gary, Simson, ‘State Autonomy in Choice of Law: A Suggested Approach’ (1978) 52 Southern California Law Review 61, 68Google Scholar.
123 Pfeiffer (2000) 203 CLR 503, 535 [67].
124 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 ('Stack’); Re Wakim (1999) 198 CLR 511, 562–3 (McHugh J), 584–5 (Gummow and Hayne JJ). The Court in Pfeiffer pointed to other circumstances in which federal jurisdiction may be triggered: (2000) 203 CLR 503, 518–19 [18].
125 (1982) 150 CLR 49, 62.
126 Cf Hill and Stone, above n 1, 76.
127 The first of these arguments would apply only so far as a State court exercises federal jurisdiction.
128 The second of these arguments would apply to all State cases.
129 See, eg, Leeth v Commonwealth (1992) 174 CLR 455 ('Leeth’), 487 (Deane and Toohey JJ), 502 (Gaudron J); Nicholas v The Queen (1998) 193 CLR 173, 208–9 [74] Gaudron J.
130 (2002) 209 CLR 339, 352 [44].
131 (2001) 207 CLR 584, 608 [65].
132 Cameron v The Queen (2002) 209 CLR 339, 352 [44] (emphasis in original).
133 (1996) 189 CLR 51 ('Kable’), 103.
134 Ibid 114.
135 (1992) 174 CLR 455.
136 (2004) 204 ALR 455 ('Putland’).
137 Ibid 470 [59].
138 Ibid 471 [61].
139 It seems, then, that in some contexts the constitutional constraints may affect the exercise of judicial power in a different way to the affect on legislative and executive power. Cf Hill and Stone, above n 1, 87.
140 In any event, as Hill and Stone point out, the Court's decision in Blunden ‘is squarely inconsistent with any constitutional requirement that a case in federal jurisdiction must lead to the same outcome, regardless of where in Australia it is instituted': ibid 75.
141 Stack (1983) 154 CLR 261, 293 (Mason, Brennan and Deane JJ). See also Kable (1996) 189 CLR 51, 103 (Gaudron J).
142 See Stack (1983) 154 CLR 261, 293 (Mason, Brennan and Deane JJ).
143 Justice Kirby also referred to the ‘predominantly territorial concern of the statutes of the several States and Territories’ (Pfeiffer (2000) 203 CLR 503, 551 [124]) as a factor, amongst others, that was relevant to the development of a new choice of law rule for an Australian context.
144 Ibid 534 [65].
145 Ibid 536–7 [75].
146 Ibid 515 [2].
147 The grant of legislative power to the various Australian States is not expressed in identical terms. Nevertheless, it is well accepted that nothing turns on the precise form of words used: see Mobil (2002) 211 CLR 1, 33 [46] (Gaudron, Gummow and Hayne JJ), 54 [113] (Kirby J).
148 See Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, 14 (the Court) ('Union Steamship’); Mobil (2002) 211 CLR 1, 33–4 [47] (Gaudron, Gummow and Hayne JJ), 53–4 [112] (Kirby J); State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253, 271 (Brennan CJ, Dawson, Toohey and Gaudron JJ).
149 That capacity is clearly reflected in s 2(1) of the Australia Acts 1986 (Cth) and (UK). See also Kirk, above n 1, 251–3; Brian, R Opeskin, ‘Constitutional Dimensions of Choice of Law in Australia’ (1992) 3 Public Law Review 152, 154–8Google Scholar.
150 Pearce v Florenca (1976) 135 CLR 507, 518 (Gibbs J) (footnote in original; Mobil (2002) 211 CLR 1, 34 [48] n 144 (Gaudron, Gummow and Hayne JJ)).
151 Union Steamship (1988) 166 CLR 1, 14; Port MacDonnell Professional Fisherman's Association Inc v South Australia (1989) 168 CLR 340, 372 (footnote in original; Mobil (2002) 211 CLR 1, 34 [48] n 145 (Gaudron, Gummow and Hayne JJ)).
152 (2002) 211 CLR 1, 34 [48]. Their Honours then said that there may remain some questions ‘about the resolution of conflict if two States make inconsistent laws': at 34 [48] (footnote omitted). This issue will be taken up further below.
153 Ibid 26 [16]. Cf at 51–65 [105]–[143] (Kirby J); BHP Billiton Ltd v Schultz (2004) 211 ALR 523 ('Schultz’), 558 [143] (Kirby J); Austin v Commonwealth (2003) 215 CLR 185 ('Austin’), 276 [207] (McHugh J).
154 Pfeiffer (2000) 203 CLR 503, 533–4 [64].
155 Kirk above n 1, 268 (footnotes omitted). See also Davis, above n 113, 1001-2.
156 Union Steamship (1988) 166 CLR 1, 14.
157 Pfeiffer (2000) 203 CLR 503, 521 [27]. See also Mobil (2002) 211 CLR 1, 52 [108] (Kirby J).
158 (2000) 203 CLR 503, 536–7 [75].
159 See Peter, E Nygh, ‘Private International Law — Full Faith and Credit: A Constitutional Rule for Conflict Resolution’ (1991) 13 Sydney Law Review 415, 430Google Scholar. Fortunately for the Court, on the facts in Pfeiffer, all relevant acts, matters and things occurred within NSW. The Court did acknowledge the difficulties that might arise in other contexts where those acts, matters or things have a connection to more than one law area (eg product liability or defamation cases): at 538–9 [81]. See also Mobil (2002) 211 CLR 1, 76–7 [180] (Callinan J). However, these difficulties do not just provide hard cases to be decided at a later time; the existence of these difficult cases suggests that the ideas of sovereignty and territoriality cannot be guiding principles for the determination of choice of law cases. See also the discussion by Opeskin, above n 149, 164; Kirk, above n 1, 252–3, 283.
160 Lorenzen, above n 43, 3.
161 Cook, above n 48, 59–60. Ernest Lorenzen was similarly critical of Story's methodology. Lorenzen posed a simple hypothetical to expose the erroneous logic. Assume the question before a court is whether a deed to land is valid. The land is situated in state A, the deed was executed and delivered in state B by X who is a citizen of state C. Lorenzen said:
According to Story's first maxim state A has exclusive power over the property; state B has exclusive power over the execution of the deed, the act being done in state B; and State C, exclusive power over X. How are we to get out of the embarrassment? By applying the law of state A where the property is situated? But why should the laws of state B and of state C relinquish their power? Who is to be the umpire to choose from among the competing powers the one that is to control?
The only conclusion that can be reached from the foregoing discussion is that the rules of the Conflict of Laws are not based upon, nor are they derivable from, any uniform theory of territoriality.
Lorenzen, above n 43, 8–9.
162 Richard, Fentiman, ‘English Private International Law at the End of the 20th Century: Progress or Regress?’ in Symeon, Symeonides, Private International Law at the End of the 20th Century: Progress or Regress? (2000) 165, 190Google Scholar.
163 Although, as the Court recognised, at a greater level of uncertainty. It is interesting to note that in the contracts context, the degree of uncertainty involved in determining the proper law of contract has not resulted in a stricter territorial rule (Bonython v Commonwealth (1948) 75 CLR 589 (High Court of Australia); (1950) 81 CLR 486; [1951] AC 201 (Privy Council), cited with apparent approval by Gaudron, Gummow and Hayne JJ in Mobil (2002) 211 CLR 1, 36 [56]). See also Davis, above n 113, 1005.
164 The Court acknowledged that the lex loci delicti involves uncertainty in some circumstances; see the examples identified by the Court of product liability and defamation: Pfeiffer (2000) 203 CLR 503, 538–9 [81].
165 See P M, North and J J, Fawcett, Cheshire and North's Private International Law (12th ed, 1992) 16–17Google Scholar, discussing early attempts at choice of law solutions following the fall of the Roman Empire.
166 See Roosevelt, above n 92.
167 Although not predictability as it would be impossible to know in most cases the residence of a plaintiff or defendant prior to an accident. But query the extent to which predictability is relevant in the context of unexpected tortious conduct.
168 The example was first used by Currie, above n 82, 609. See also Simson, above n 122, 83. Again, the alphabetical rule may not enhance predictability as it would be impossible in most cases to anticipate the residence of the plaintiff or defendant in advance.
169 Importantly, some of those rules would not accord equality of treatment to non-residents and non-forum laws as I argue is required by ss 117 and 118.
170 Currie referred to this argument as a ‘dragnet’ argument; that the traditional choice of law rules would approximate the state's interest: above n 82, 101–2.
171 (2004) 204 ALR 455, 471 [61]. See above nn 129-40 and accompanying text.
172 See above n 1, 79.
173 The relevant head of federal jurisdiction being s 75(iii) of the Constitution.
174 Blunden (2003) 203 ALR 189, 199 [40] (Gleeson CJ, Gummow, Hayne and Heydon JJ). The ‘high seas’ are ‘beyond the geographical territory of Australia and beyond any internal waters or any waters which Australian law treats as territorial waters': at 202 [56] (Kirby J).
175 Ibid 196 [27].
176 Ibid 198 [36].
177 On the basis that the ACT was ‘the seat of the administration and operation of the Royal Australian Navy': ibid.
178 On the basis that it was the ‘last port of the ship on which the plaintiffs were injured': ibid.
179 Ibid 194 [18], 199 [38], 200 [45], with Kirby J (at 213–4 [101]) and Callinan J (at 215 [108]) agreeing with this application of s 80.
180 The same result has been reached in the US, although in a case involving forum residents: see American Banana Co v United Fruit Co, 213 US 347, 355–6 (1909) (Holmes J) ('No doubt in regions subject to no sovereign … [civilized nations] may treat some relations between their citizens as governed by their own law, and keep to some extent the old notion of personal sovereignty alive’), noted in Roosevelt, above n 92, 2480 n 151.
181 Blunden (2003) 203 ALR 189, 195 [19] (Gleeson CJ, Gummow, Hayne and Heydon JJ).
182 Ibid.
183 Ibid 195 [23]. See also at 199 [40].
184 Ibid 196 [25] (footnotes omitted, emphasis added).
185 Ibid 200 [41].
186 Ibid 200 [42].
187 Ibid [44].
188 See Street v Queensland Bar Association (1989) 168 CLR 461 ('Street’), 492 (Mason CJ), 528 (Deane J), 546 (Dawson J). In Goryl (1994) 179 CLR 463, the validity of similar provisions was left open by most judges: at 474–5 (Brennan J), 489 (Dawson and Toohey J), 471 (Mason CJ, agreeing), 498 (McHugh J). Only the judgment of Deane and Gaudron JJ suggests that such a scheme would breach s 117 of the Constitution: at 478–80.
189 Given the decision in Blunden, the High Court might decide that, in the absence of applicable legal principles in NSW, an ACT court should apply ACT law.
190 Pfeiffer (2000) 203 CLR 503, 527 [43]. It is reasonably clear that the Court did not intend to confine the word ‘inconsistency’ in this passage to the meaning of the word in s 109 of the Constitution. Various judgments in other cases have alluded to the resolution of an ‘inconsistency’ between State laws (see, eg, Mobil (2002) 211 CLR 1, 34 [48] (Gaudron, Gummow and Hayne JJ), 52–4 [109]–[123] (Kirby J); Port MacDonnell Professional Fisherman's Association Inc v South Australia (1989) 168 CLR 340, 374 (the Court)).
191 Hill and Stone, above n 1, 78 n 61.
192 Ibid (emphasis in original).
193 Of course, I am not referring here to situations in which Commonwealth law is applicable.
194 Pfeiffer (2000) 203 CLR 503, 515 [3].
195 Schultz (2004) 211 ALR 523.
196 BHP Billiton Ltd v Schultz [2002] NSWSC 981, [33] (Sully J).
197 Dust Diseases Tribunal Act 1989 (NSW) s 11A(2)(a).
198 Dust Diseases Tribunal Act 1989 (NSW) s 11A(2)(b).
199 Section 30B confers a power to make an interim assessment of damages.
200 Schultz (2004) 211 ALR 523, 532 [29] (Gleeson CJ, McHugh and Heydon JJ), 546 [98] (Gummow J), 565 [174] (Kirby J), 566 [177] (Hayne J), 586 [262] (Callinan J).
201 On the assumption that the provisions are substantive, a point not decided by the Court.
202 Section 30B is directed to the Supreme Court of South Australia, but is not explicit in its terms about the location of events that it will cover. As to whether the NSW tribunal can apply a South Australian provision directed, on its face, to a South Australian court, see below nn 257-61 and accompanying text.
203 Opeskin has made a similar point about a ‘distinction … between techniques of conflict avoidance and those of conflict resolution': above n 149, 154.
204 For example, the minimalist textual view of representative and responsible government in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
205 (2000) 203 CLR 503, 533 [63], 535 [67].
206 (1989) 168 CLR 461, 548.
207 Ibid 485.
208 To adopt Laycock's words, above n 75, 278.
209 Ibid 275 (footnote omitted). See also Roosevelt, above n 92, 2516–18.
210 In circumstances where the parties are all resident of the same law area, any invocation of the public policy exception would not operate to the detriment of a non-resident. However, as will be discussed below, the overlapping effect of s 118 would prevent the rejection of non-forum law on the basis of forum public policy.
211 By analogy with s 92, there is no reason why s 117 could not apply to the Commonwealth: see Cole v Whitfield (1988) 165 CLR 360, 398–400 (the Court).
212 See Goryl (1994) 179 CLR 463.
213 Street (1989) 168 CLR 461, 492–4 (Mason CJ), 512 (Brennan J), 528–9 (Deane J), 548 (Dawson J), 559–60 (Toohey J), 570–3 (Gaudron J), 583–4 (McHugh J).
214 Ibid 583 (McHugh J).
215 For example, in Pfeiffer, both the plaintiff and defendant were resident in the same law area. In those circumstances, s 117 would have no operation.
216 (2000) 203 CLR 503, 533–4 [63]–[64], 535 [67]. Their Honours said, ‘in Breavington, six members of the Court appear to have accepted that s 118 may preclude the refusal of one State to apply the law of another on the grounds of public policy where the law of that other State is otherwise applicable': at 533-4 [64].
217 See Nygh, above n 159, 428; Georgina, Whitelaw, ‘Interstate Conflicts of Laws and Section 118’ (1994) 5 Public Law Review 238, 248Google Scholar.
218 The Court in Pfeiffer suggested as much: (2000) 203 CLR 503, 541 [91]. See also Breavington (1998) 169 CLR 41, 99 (Wilson and Gaudron JJ); Hill and Stone, above n 1, 74.
219 For a similar view in the US context, see Roosevelt, above n 92, 2513–6.
220 See also Pfeiffer (2000) 203 CLR 503, 550–1 [123], 554 [133] (Kirby J). For the view that the US Full Faith and Credit provision prohibits a state court from adopting these kinds of choice of law rules or approaches, see Laycock, above n 75, 310–15. Other ‘common law rules with a homeward trend’ include exceptions to the application of non-forum revenue of penal laws (see Nygh, above n 159, 426). These exceptions, too, would appear to be prohibited by s 118.
221 Again, by analogy to s 92, there is no reason why s 118 could not apply to the Commonwealth: see Cole v Whitfield (1988) 165 CLR 360, 398–400 (the Court). This would mean that s 51(xxv) of the Constitution would be subject to the equality of treatment requirements of s 118.
222 If the views developed in Part VI are accepted, s 79 of the Judiciary Act would appear to be vulnerable to invalidity.
223 Roosevelt, above n 92, 2504. This may result in intra-national choice of law principles diverging from international choice of law principles, eg, in the possible invocation of a public policy exception. However, that is a necessary consequence of the federal compact.
224 This understanding of ss 117 and 118 in the choice of law context appears to be consistent with the analysis of Hill and Stone, above n 1.
225 See Kirk, above n 1, 269.
226 A unilateralist approach was also outlined by the author in a paper presented at the Faculty of Law, Australian National University, 22 August 2001 (copy on file with author).
227 Although not entirely precise (see Symeonides, above n 30, 5 n 7), that definition is sufficient as a shorthand for present purposes.
228 See above nn 30-1 and accompanying text.
229 A useful explanation of the statutist method can be found in Martin, Wolff, Private International Law (1945) 22–5Google Scholar, Juenger, above n 81, 11–15 and Kurt, Lipstein, Principles of the Conflict of Laws, National and International (1981) 7–13Google Scholar.
230 See Gageler, above n 1, 186 ('I think it becomes critical to ask at the threshold whether the common law of Australia can properly have any role to play in telling an Australian court whether or not to give effect to an Australian statute’ (emphasis in original)); Kirk, above n 1, 247, 271 ('But it is strange that an Australian court should be able to decide not to apply a valid Australian statute, applicable by its terms, pursuant to powers granted to it by the common law. It represents an elevation of common law principles and powers above statutory choices made through the democratic process’).
231 See Gageler, above n 1, 186. Cases recognising the unity of the common law include, eg, Pfeiffer (2000) 203 CLR 503, 518 [15]; Lipohar (1999) 200 CLR 485, 505, 509 (Gaudron, Gummow and Hayne JJ), 551–2 (Kirby J); Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 566; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 556; Mabo v Queensland [No 2] (1992) 175 CLR 1, 15.
232 Pfeiffer (2000) 203 CLR 503, 536 [73]. However, the Court considered that this concern was addressed, in part, by the forum court applying its forum choice of law rules: ibid.
233 In Mobil (2002) 211 CLR 1, the Court rejected a submission from the plaintiff that ‘an implication from federalism prohibits State legislation which, if given extra-territorial effect, would affect the relationship between another State or a Territory and its residents or would determine the legal consequences of actions in another State or Territory': at 26 [16] (Gleeson CJ). That submission was rightly rejected as being too broad. The argument in this paper does not suggest that a State legislature has an exclusive relationship with its residents: it in no way suggests that a forum State cannot prescribe legislative standards that will apply to non-forum residents in forum courts. What is suggested is that, if not for contrary constitutional indications, there would be an exclusive relationship between the legislature and courts of each State.
234 It would appear from Pfeiffer that when a State court is exercising federal jurisdiction, the Commonwealth Parliament could, subject to ss 117 and 118, set out a choice of law rule to be applied by those courts (cf the discussion of Justice Selway challenging this broad assumption: above n 1, 36). State courts would then be bound by Covering Clause 5 to comply with that prescription. However, the accepted position currently is that s 80 of the Judiciary Act requires the application of common law choice of law rules in federal jurisdiction (see above n 101). Thus, the analysis in the following sections is relevant to all State courts whether exercising federal or state jurisdiction.
235 Austin (2003) 215 CLR 185, 246 [115] (Gaudron, Gummow and Hayne JJ) (emphasis added); see also at 217 [24] (Gleeson CJ), 300 [279] (Kirby J). See also Bayside City Council v Telstra Corporation Limited (2004) 206 ALR 1, 12 [31] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).
236 Austin (2003) 215 CLR 185, 259-60 [147]-[148] (Gaudron, Gummow and Hayne JJ), 283 [228] (McHugh J), 302 [284], 307 [299] (Kirby J).
237 There is a strong argument that the Constitution not only protects State governmental capacities from the exercise of Commonwealth legislative power, but also protects those capacities from State legislative power: see Mobil (2002) 211 CLR 1, 25-6 [15] (Gleeson CJ); Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410, 451 (McHugh J).
238 Austin (2003) 215 CLR 185, 246 [115] (Gaudron, Gummow and Hayne JJ). See also at 258 [145] ('That “fundamental constitutional conception” has proved insusceptible of precise formulation’). See also at 300 [279], 302 [283] (Kirby J).
239 See Kirk, above n 1, 267–8; Mason, above n 25, 168; Breavington (1988) 169 CLR 41, 131–3 (Deane J).
240 See Street (1989) 168 CLR 461, 485 (Mason CJ). See also Kirk, above n 1, 267.
241 See Street (1989) 168 CLR 461, 503 (Brennan J), 525 (Deane J), 553–4 (Toohey J), 583 (McHugh J).
242 See ibid 541 (Dawson J).
243 Cf Mobil (2002) 211 CLR 1, 83 [192] (Callinan J): ‘Section 118 of the Constitution at the very least requires as a matter of comity between the States due deference to the reasonable exercise of the jurisdictions of the courts of each of them'; Schultz (2004) 211 ALR 523, 570 [201]: ‘Section 118 is a section designed, among other things, to ensure comity between the states.'
244 A view of s 118 as performing purely an evidential role is not consistent with Pfeiffer: see Kirk, above n 1, 267.
245 (2000) 203 CLR 503, 533–4 [64].
246 That would not preclude the operation of the common law in combination with the other aspects of s 118. First, common law approaches like the proper law of tort, which have the potential to take account of the respective State laws, could be adopted consistently with s 118. However, as explained in Part II, that approach depends upon a territorial demarcation of legislative power: a proposition that finds little support in the Constitution. Secondly, as I will explore further below, the common law might provide a basis to determine a conflict between State laws after a unilateralist method has been initially adopted.
247 Most academic commentary on s 118 has also analysed s 118 in this way: see Nygh, above n 159; Opeskin, above n 149; Whitelaw, above n 217.
248 Gageler, above n 1, 186.
249 Cheatham and Reese, above n 78, 961.
250 See Nygh, above n 159, 424, 432. However, as Nygh notes, choice of law rules may not always be useful, particularly in relation to causes of action created by statute: at 424.
251 Alfred, Hill, ‘The Judicial Function in Choice of Law’ (1985) 85 Columbia Law Review 1585, 1600Google Scholar.
252 (1988) 169 CLR 41, 137.
253 See n 192 and accompanying text.
254 The three possibilities resemble Currie's categories of no interest, false conflict and true conflict: see generally above n 82, chs 2 and 4. However, critically, the statutory construction task that has been suggested is fundamentally different to Currie's resident-focused inquiry. The approach described here would look to whether the State statutes purport to apply to the legal relationship: it does not assume that the underlying policy will favour residents. The approach described here is reminiscent of Wächter, although it does not suffer from the same forum-centred criticisms. A State court's task is not limited to ascertaining the reach of forum statutes. It is compelled by s 118 to undertake the same inquiry in relation to the reach of non-forum laws.
255 See Gageler, above n 1, 187.
256 The statutory construction process may have been assisted by the presumption that the NSW legislature has traditionally had a predominant territorial concern.
257 See Kirk, above n 1, 291–2. This seems to have been the effect of Mason CJ's comments in McKain (1991) 174 CLR 1, 30–1. During the course of argument in Schultz, Gummow J appeared to accept this proposition, at least as arising from the application of common law choice of law rules ([2003] HCATrans 512 (4 December 2003)). It would also be consistent with similar ideas accepted by the Court in the context of s 79 of the Judiciary Act picking up State law as surrogate federal law: see ASIC v Edensor Nominees (2001) 204 CLR 560, 591 (Gleeson CJ, Gaudron and Gummow JJ); Solomons v District Court of New South Wales (2002) 211 CLR 119, 135 [24] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ); see also the oral submissions of counsel for the appellant in Schultz ([2003] HCATrans 512 (4 December 2003)).
258 Stevens (1993) 176 CLR 433, 445.
259 Pfeiffer (2000) 203 CLR 503, 543–4 [99]. See also 548–9 [116]–[117] (Kirby J). It is possible that s 118 is qualified in the same way as s 117. To require a State court to apply the procedural laws of another State legislature could be seen as infringing its autonomy to a greater extent than is required by national unity: see Street (1989) 168 CLR 461, 492 (Mason CJ), 528 (Deane J), 546 (Dawson J).
260 See Pfeiffer (2000) 203 CLR 503, 548–9 [116]–[117] (Kirby J).
261 See Schultz (2004) 211 ALR 523, 546 [99] (Gummow J), 582 [244], 586 [260] (Callinan J).
262 Cf Nygh who considers that these kinds of conflicts ‘should be resolved by the political rather than the legal process': above n 159, 432.
263 Hill, above n 1.
264 Arthur, Taylor von Mehren and Donald, Theodore Trautman, The Law of Multistate Problems: Cases and Materials on Conflict of Laws (1965) 376–402Google Scholar.
265 Russell, J Weintraub, Commentary on the Conflict of Laws (4th ed, 2001)Google Scholar.
266 F W, Baxter, ‘Choice of Law and the Federal System’ (1963) 16 Stanford Law Review 1Google Scholar.
267 As indicated above, the parochial approach of Currie to apply forum law in these circumstances would be inconsistent with s 118 of the Constitution; see above n 219 and accompanying text.
268 Kirk, above n 1, 285.
269 Ibid 287.
270 This reflects the different basis underlying Kirk's test. As explained above, the approach advocated in this paper is derived from what I have argued to be a command in s 118 to accord equality of treatment. Kirk's test aims for uniform outcomes and is based on ‘necessity and federalism, as informed by the rule of law': ibid 285.
271 Gageler, above n 1, 188.
272 Kirk, above n 1, 280.
273 Ibid 287.
274 Hill, above n 1.
275 Hill's analysis suggests that where conflicting rights are vested in one party, that party may elect between these rights and, thus, at least to that extent, this approach will result in one law being applied. To this extent, at least, Hill's argument appears to be a sophisticated restatement of the vested-rights theory.
276 Selway, above n 1, 42-5. See also Schultz (2004) 211 ALR 523, 558 [144] (Kirby J).