Hostname: page-component-745bb68f8f-5r2nc Total loading time: 0 Render date: 2025-02-04T22:03:50.407Z Has data issue: false hasContentIssue false
  • English
  • Français

The Effect of the Constitution on the Common Law as Revealed by John Pfeiffer V Rogerson

Published online by Cambridge University Press:  24 January 2025

Greg Taylor
Get access Rights & Permissions [Opens in a new window]

Extract

Recently, the High Court of Australia has again concerned itself with the need for the common law to conform to the Constitution and with the manner in which, and extent to which, such conformity is ensured. In the 1990s, the Court considered the effect of the Constitution's guarantee of freedom of speech on defamation law and reached at length, in Lange v Australian Broadcasting Corporation, a common position on the influence of the Constitution on the common law which enjoys the support of the whole Court. The consensus thus reached has now been applied in John Pfeiffer v Rogerson to the area of choice-of-law in tort.

Choice of law is another area in which, during the Court's fin de siécle period in the late 1980s and 1990s, there was considerable disagreement among members of the Court. The well-known succession of cases started with Breavington v Godleman in 1988. Some members of the Court held that the applicable choice-of-law doctrine in intra-national cases was mandated by the terms of the Constitution and to be found by applying a command allegedly inherent in s 118 (possibly with the aid of other constitutional provisions).

Type
Research Article
Information
Federal Law Review , Volume 30 , Issue 1 , March 2002 , pp. 69 - 95
Copyright
Copyright © 2002 The Australian National University

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

The author wishes to thank Emeritus Professor Leslie Zines and the anonymous reviewer for their comments on the draft of this article. Needless to say, any remaining errors or infelicities are the author's alone. Some final updating of footnotes was carried out while the author was studying in Germany under the University of Adelaide's Small Research Grants Scheme, the support of which is gratefully acknowledged.

References

1 (1997) 189 CLR 520.

2 Except, it would now seem, Callinan, J: see Australian Broadcasting Corporation v Lenah Game Meats (2001) 185 ALR 1Google Scholar. It is suggested, however, that his Honour's reservations expressed in that case chiefly relate to whether the implication identified in Lange exists at all, and not with the precise manner of its effect (if it exists) on the common law. Kirby J, for his part, defends the Lange implication in his reasons (eg at 57), but again it would be unwise to read anything into the brief references by his Honour to the issue considered here, which was not dealt with directly.

3 (2000) 203 CLR 503.

4 (1988) 169 CLR 41. The other cases were McKain v RW Miller and Co. (SA) (1991) 174 CLR 1 and Stevens v Head (1993) 176 CLR 433.

5 See Stevens v Head (1993) 176 CLR 433, 464; Georgina, Whitelaw, 'Interstate Conflicts of Laws and Section 118' (1994) 5 Public Law Review 238, 245Google Scholar. For the sake of simplicity, reference is usually made below only to the most frequently cited provision, s 118.

6 Janey, Greene, 'Choice of Law in Tort–the Song that Never Ends' (1998) 26 Federal Law Review 349, 358Google Scholar. For a sample of the criticisms levelled at the doctrine here discussed, see Edward, Sykes Michael, Pryles, Australian Private International Law (3rd ed, 1991) 326-8Google Scholar.

7 Stevens, (1993) 176 CLR 433, 461f (Deane J), 464f (Gaudron J).

8 (2000) 203 CLR 503.

9 See the list at (2000) 203 CLR 503, 535 to which reference will be made again below.

10 Adrienne, Stone, 'Choice of Law Rules, the Constitution and the Common Law' (2001) 12 Public Law Review 9, 11Google Scholar.

11 Breavington v Godleman (1988) 169 CLR 41, 83.

12 Michael, Pryles, 'The Law Applicable to Interstate Torts: Farewell to Phillips v Eyre' (1989) 63 Australian Law Journal 158, 172Google Scholar. See also Breavington, (1988) 169 CLR 41, 151; Elizabeth James, 'Case Note: John Pfeiffer Pty Ltd v Rogerson: The Certainty of 'Federal' Choice of Law Rules for International Torts: Limitations, Implications and a Few Complications' (2001) 23 Sydney Law Review 145, 145.

13 Australian Law Reform Commission, Choice of Law, Report No 58 (1992) 59-62; Pryles, above n 12, 175; Sykes and Pryles, above n 6, 569f.

14 Friedrich, Juenger, 'Tort Choice of Law in a Federal System' (1997) 19 Sydney Law Review 529, 538-41Google Scholar.

15 See the analysis of La Forest J in Tolofson v Jensen [1994] 3 SCR 1022, 1050-63 for an excellent example, and cf Greene, above n 6, 367-9.

16 Ibid 355.

17 James, above n 12, 163.

18 Australian Law Reform Commission, above n 13, 50-9, 63-6; Sykes and Pryles, above n 6,579-81.

19 This somewhat inelegant word, and the associated verb 'constitutionalise', are used in this article to mean the determination of choice-of-law questions by constitutional rules. There is no necessary implication that that would mean any elevation of such questions into federal jurisdiction—although, if a choice-of-law rule were constitutionally determined, that could not be ruled out.

20 For a description of the German approach in relation to defamation law, see the author's 'Public Law, Private Rights: A Comparative View of the Theory Behind Recent Changes in Defamation Law to Make It Reflect Constitutional Values' (2000) 11 Public Law Review 274.

21 See above, n 20.

22 There is no codification of the law of sub-national conflicts in Germany. However, the Federal Supreme Court has stated (e.g. in BGHZ 40, 32, 34f; BGHZ 85, 16, 22-6) that the (codified) principles of private international law are generally to be applied analogously in intra-German conflict-of-law cases. As the German Civil Code applies throughout Germany and the states (to the extent that they have any power at all) often pass uniform, or near-uniform legislation anyway, there is not much need for intra-national conflicts law in Germany. It was, however, also of use in cases involving the post-War zones of occupation, the former 'German Democratic Republic' (East Germany, which was never recognised as a foreign country in West Germany, but at most as a separate German state), and similar historical cases. For a commentary, see Otto, Palandt Andreas, Heldrich, Bürgerliches Gesetzbuch (61st ed, 2002) 2342-3, 2358, 2543-5Google Scholar. For a broader consideration of conflicts of law by a German scholar in English, see Gerhard, Kegel, 'The Crisis of Conflict of Laws' [1964] 21 Hague Recueil 95, especially at 198Google Scholar. (I am grateful to Professor Elsabe Schoeman–see below, n 32–for drawing my attention to this source.)

23 This, in summary, was the legal principle behind the decision of the Federal Constitutional Court in the seminal Lüth case (BVerfGE 7, 198), which may be found in English translation : see the references in Taylor, above n 20, 283 n 78. The provision of the codes involved was s 826 of the Civil Code, which gives a right to damages for the intentional infliction of harm contra bonos mores.

24 BVerfGE 7, 198, 205f. (All translations from German in this article are the author's.)

25 (1997) 189 CLR 520, 566.

26 BVerfGE 7, 198, 205 : 'keine bürgerlich-rechtliche Vorschrift darf in Widerspruch zu ihm stehen.'

27 [1996] 3 SA 850.

28 [1996] 3 SA 850, 881.

29 [1996] 3 SA 850, 884, 897f (Mahomed DP). This is indeed what happened in South Africa, the Supreme Court of Appeal of which has now adopted Lange's development of defamation law to include a criterion of reasonableness: National Media v Bogoshi [1998] 4 SA 1196.

30 [1993] 3 SA 850, 906.

31 For discussion of South African law in this period, see Amod v Multilateral Motor Vehicle Accidents Fund [1998] 4 SA 753, 765; McCarthy v Constantia Property Owners' Association [1999] 4 SA 847, 855; Pharmaceutical Manufacturers' Association of South Africa; Re Ex Parte President of the Republic of South Africa [2000] 2 SA 674, 696-8; JD van, der Vyver, 'The Private Sphere in Constitutional Litigation' (1994) 57 Tydskrif vir hedendaagse Romeins-hollandse Reg 378Google Scholar; Halton, Cheadle Dennis, Davis, 'The Application of the 1996 Constitution in the Private Sphere' (1997) 13 South African Journal of Human Rights 44Google Scholar; Chris, Sprigman Michael, Osborne, 'Du Plessis is Not Dead : South Africa's 1996 Constitution and the Application of the Bill of Rights to Private Disputes' (1999) 15 South African Journal of Human Rights 25Google Scholar.

32 Professor Elsabe Schoeman of the University of South Africa has kindly confirmed this point. The only case involving intra-national choice of law was the matrimonial case of Friedmann v Friedmann's Executors [1922] Natal Provincial Division 259, in which the Court followed the law of the place of the marriage (which was also the domicile of one party) in preference to the law of the other party's domicile, which would have rendered the marriage void. I am very grateful to Professor Schoeman for confirming this point for me, and for her comments on other points relating to South African law. Now that the South African provinces have more powers than they did under the old dispensation (see Schedules 4 and 5 of the 1996 Constitution), it may be that a case of intra- national choice of law in torts will arise there one day. But that has not occurred yet.

33 Section 8 of the 1996 Constitution provides:

Application

8. (1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.

(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.

(3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court -

(a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and

(b)may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1).

(4) A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person.

On the drafting of this section, see van der Vyver, above n 31. Section 8 is an extraordinarily ambiguous section (cf Amod v Multilateral Motor Vehicle Accidents Fund [1998] 4 SA 753, 765; McCarthy v Constantia Property Owners' Association [1999] 4 SA 847, 855), which could be interpreted in a number of ways. Adding to the uncertainty is s 39 (2), which provides :

(2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

34 Carmichele v Minister of Safety and Security [2001] 4 SA 938, 961-3. Note also the statement, at [36], that the Court's duty under South African law 'is different in degree to that which the Canadian Charter of Rights cast upon Canadian judges' (emphasis added)–nothing is said about its being different in nature.

35 Sprigman and Osborne, above n 31, 51. See further Dennis, Davis, 'Has Any Author been Subjected to a 'Ruderer' Review? or, Cry the Beloved Academic Halls of Learning' (2001) 118 South African law Journal 250, 254Google Scholar.

36 Sprigman and Osborne, above n 31, 50.

37 As well as the one-hundredth anniversary of Federation, which we have just celebrated, most state Parliaments will shortly celebrate their 150th anniversaries.

38 It is clearly necessary here to draw a line between the 'government' and other actors. The Court divided, for example, on the question whether Universities were part of the 'government' in McKinney v University of Guelph [1993] 3 SCR 229. The majority's conclusion was that they were not. For further cases, see Patrick, Macklem et al, Canadian Constitutional Law (2nd ed, 1997) 1133-6Google Scholar, and the references there cited; note also the apparent status of the applicant in National Ballet of Canada v Glasco (2000) 49 OR (3rd) 230, 249f.

39 Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery [1986] 2 SCR 573, 592-9.

40 [1995] 2 SCR 1130.

41 Ibid 1169.

42 Ibid 1170. Emphases as in original (underlining replaced by italics).

43 Ibid 1171.

44 Ibid 1171.

45 [1994] 3 SCR 1022.

46 An exception is clearly established in international cases: see Hanlan v Sernesky (1998) 38 OR (3rd) 479; Wong v Lee (2000) 50 OR (3rd) 419. An exception may be emerging in intra- national cases as well: see Buchan v Non-Marine Underwriters, Members of Lloyd's London, England (1999) 44 OR (3rd) 685, 690-4; Wong, (2000) 50 OR (3rd) 419, 422; Lau v Li (2001) 53 OR (3rd) 727 (with references to the relevant passages in Tolofson and other cases).

47 [1994] 3 SCR 1022, 1065f.

48 Peter, Hogg, Constitutional Law of Canada (4th ed, 1997)Google Scholar; Macklem et al, above n 38.

49 South Africa's common law is essentially the old Roman-Dutch law; Canada is divided between common law provinces and Quebec, with its (recently revised) Civil Code in the French tradition; Germany's Civil Code dates from 1896 and combines a variety of influences (Roman and Germanic). (On the sources of South African law, see Reinhard, Zimmermann, Roman Law, Contemporary Law, European Law: The Civilian Tradition Today (2001), 128–51)CrossRefGoogle Scholar.

50 See the sources listed in Taylor, above n 23, 275 n 4, to which must now be added Douglas v Hello! [2001] QB 967, 990-2, 1001-3, 1011-12; Venables v News Group Newspapers [2001] 1 All ER 908, 913, 917f, 932, 943; Nicholas, Bamforth, 'The True 'Horizontal Effect' of the Human Rights Act 1998' (2001) 117 Law Quarterly Review 34Google Scholar.

51 (1997) 189 CLR 520, 563f.

52 Taylor, above n 23, 281-3.

53 Ibid 289 for further references.

54 For a summary of US law, see Gummow, J, (1995) 46 South Carolina Law Review 979, 1021-3Google Scholar.

55 Juenger, above n 14, 535-7.

56 Allstate Insurance v Hague (1981) 449 US 302, 312f.

57 (1989) 168 CLR 340.

58 See above, n 4.

59 Allstate Insurance, (1981) 449 US 302, 314f. For a case in which it was not satisfied, see Phillips Petroleum v Shutts (1985) 472 US 797. See also Ferens v John Deere (1990) 494 US 516, 532.

60 Allstate Insurance, (1981) 449 US 302, 316 n 22.

61 See Symeon, Symeonides, 'Choice of Law in the American Courts in 2000: As the Century Turns' (2001) 49 American Journal of Comparative Law 1, 3-15Google Scholar.

62 Sun Oil v Wortman (1988) 486 US 717, 727f. See also Mistretta v United States (1989) 488 US 361, 392; Baker (by Thomas) v General Motors (1998) 522 US 222, 249.

63 (1964) 376 US 254.

64 Ibid 279f, 706.

65 (1997) 189 CLR 520, 575.

66 Toogood v Spyring (1834) 1 CM & R 181, 193; 149 ER 1044, 1050.

67 (1997) 189 CLR 520, 571. See also ibid 565.

68 Ibid 571.

69 Ibid 571f.

70 See Muldowney v South Australia (1996) 186 CLR 352, 367, 370f, 373f, 376-8, 387f; Michael, Chesterman, 'Privileges and Freedoms for Defamatory Political Speech' (1997) 19 Adelaide Law Review 155, 162Google Scholar; Michael, Chesterman, 'Clarity and Loose Ends' (1997) 44 Gazette of Law & Journalism 5, 5Google Scholar; Sally, Walker, 'It's a Miracle! High Court Unanimity on Free Speech' (1997) 22 Alternative Law Journal 179, 181Google Scholar; Sally, Walker, 'Lange v ABC: The High Court Rethinks the 'Constitutionalisation' of Defamation Law' (1998) 6 Torts Law Journal 9, 14fGoogle Scholar; George, Williams, 'Sounding the Core of Representative Democracy: Implied Freedoms and Electoral Reform' (1996) 20 Melbourne University Law Review 848, 866fGoogle Scholar.

71 (1997) 189 CLR 520, 566.

72 Ibid 573.

73 This is, in effect, what Deane J proposed in governmental and political matters in Theophanous, (1994) 182 CLR 104, 185. Although clearly a very extreme position, as it would leave political office-holders vulnerable to even the most absurd and concocted rumours, it has been supported by others. For a survey of American proposals for the reform of defamation law, see Michael, Chesterman, 'The Money or the Truth: Defamation Reform in Australia and the USA' (1995) 18 University of New South Wales Law Journal 300Google Scholar. For US judicial opinions to this effect, see New York Times, (1964) 376 US 254, 293-305; Garrison v Louisiana (1964) 379 US 64, 79f.

74 Adrienne, Stone, 'Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication' (2001) 25 Melbourne University Law Review 375, 400-17Google Scholar.

75 Chesterman, above n 73, 302-8.

76 Taylor, above n 20, 282.

77 For a description of the mechanism involved, see Murray, Gleeson, 'The State of the Judicature' (2000) 74 Australian Law Journal 147, 157fGoogle Scholar.

78 Peter, Nygh, 'The Miraculous Raising of Lazarus: McKain v RW Miller & Co (South Australia)' (1992) 22 University of Western Australia Law Review 286, 386f (see especially n 3)Google Scholar; Pryles, above n 12, 158, 181; Sykes and Pryles, above n 6, 561f, 565.

79 Juenger, above n 14, 534.

80 (1991) 174 CLR 1.

81 (1993) 176 CLR 433.

82 (2000) 203 CLR 503, 515. A very similar turn of phrase is used in Australian Securities and Investments Commission v Edensor (2001) 75 ALJR 363, 375f.

83 Ibid 528. Emphases added.

84 Ibid 534, 540, 544 (twice).

85 Ibid 531.

86 Ibid 533-4.

87 As could happen if, for example, cars driven by two residents of the Northern Territory collided in the Australian Capital Territory and the drivers wished to sue in the Northern Territory.

88 For a passage in Breavington presaging this approach, see (1988) 169 CLR 41, 95.

89 In Pfeiffer, the Court left open the question of the extent to which international choice-of- law rules should be altered: (2000) 203 CLR 503, 514. Of course, as overseas jurisdictions are, by definition, outside Australia, the case for applying constitutional values based on our unified system of law to them is much weaker than the case for applying them to the territories. At the time of writing, argument had occurred (on 8-9 August 2001) in the High Court in the case of Regie National Des Usines Renault SA v Zhang (S9/2001), and judgment had been reserved. Special leave to appeal had been granted on 15 December 2000 by Gaudron and Kirby JJ (S192/2000). The transcript of the special leave hearing records the following protest by Kirby J against the Latin language used in the field of conflict of laws:

KIRBY J: You will have to start using English words. I do not understand this foreign language any more.

WALKER SC : Your Honour, we have had this passage before. I think, by majority, I am commanded to use Latin. However, may I, and with some relief venture this English.

KIRBY J: After the 70s, nobody learned Latin any more, so the law ultimately has to catch up.

WALKER SC : Unless age limits on judges are reversed in some way –

KIRBY J: Justice Gaudron tells me her son is majoring in it, but he is a real exception, like his mother.

90 (2000) 203 CLR 503, 535.

91 Ibid.

92 Ibid 531. See also Edensor (2001) 75 ALJR 363, 402 n 221.

93 (1957) 31 Australian Law Journal 240.

94 It is interesting to note that McHugh J's judgments in Stephens v West Australian Newspapers (1994) 182 CLR 211 and in Theophanous v Herald & Weekly Times (1994) 182 CLR 104, 205-7 appear to contain the seeds of the Lange doctrine on the effect of the Constitution on the private law.

95 See, eg, McKain, (1991) 174 CLR 1, 34-6, where the judgment also talks about the need not to deny an important legislative power to the states by over-constitutionalising.

96 For a judgment in this area by McHugh J sitting as a single judge, see Re Stubberfield (1996) 70 ALJR 646.

97 Although one learned commentator doubts even this ( Peter, Nygh, 'Full Faith and Credit: AConstitutional Rule for Conflict Resolution' (1991) 13 Sydney Law Review 415, 424f)Google Scholar, he cites a passage in which her Honour (with Wilson J) states that s 118 produces an 'inflexible rule.' The true position appears to be as stated in Breavington, (1988) 169 CLR 41, 98: her Honour thought that s 118 did not state a rule, but that effect could be given to its command only by applying the 'inflexible rule' in favour of the lex loci delicti. This is correctly stated by Greene (above n 6, 358) to be an 'indirect' form of constitutional determination. At any rate, Nygh J's view only increases the strength of the case presented below that her Honour is now not in favour of over-constitutionalisation of choice-of-law rules.

98 Stevens, (1993) 176 CLR 433, 464.

99 It is, however, certainly arguable that the majority's endorsement in McKain was obiter: Michael, Pryles, 'Of Limitations and Torts and the Logic of Courts' (1992) 18 Melbourne University Law Review 676, 676, 682Google Scholar; Nygh, above n 78, 393f.

100 This conception appears to have been adopted by the present High Court, although there are arguments against it: see, eg, Whitelaw, above n 5, 245f. Certainly Brennan CJ would not have endorsed this conception: Breavington, (1988) 169 CLR 41, 111.

101 (1993) 176 CLR 433, 466.

102 (1997) 191 CLR 471.

103 Ibid, 524, quoting Breavington, (1988) 169 CLR 41, 88.

104 Tolofson v Jensen [1994] 3 SCR 1022, 1063.

105 Whitelaw, above n 5, 247.

106 Despite research, the present author has been unable to locate any judicial expression of opinion by Hayne J on the matters considered here before Pfeiffer.

107 (1992) 27 NSWLR 78, 86f.

108 See especially at 86f.

109 (1992) 38 FCR 303, 314.

110 (1995) 38 NSWLR 714, 717f.

111 Gummow, W M C 'Full Faith and Credit in Three Federations' (1995) 46 South Carolina Law Review 979Google Scholar.

112 Pfeiffer, (2000) 203 CLR 503, 527; Gummow, above n 111, 984.

113 Pfeiffer, (2000) 203 CLR 503, 527; Gummow above n 111, 985f.

114 Gummow above n 111, 1000.

115 Ibid 1000.

116 (2000) 203 CLR 503, 514.

117 Gummow above n 111, 1005.

118 Ibid 1008.

119 Ibid 1010.

120 (1988) 169 CLR 41, 83.

121 Gummow above n 111, 1019.

122 Ibid 1024.

123 Pfeiffer, (2000) 203 CLR 503, 576.

124 (1995) 38 NSWLR 714.

125 Ibid 717.

126 Ibid 718.

127 (2000) 203 CLR 503, 546.

128 Ibid 557.

129 Ibid.

130 Some but not all of which is duplicated by Commonwealth legislation: see Pryles, above n 12, 170.

131 Nygh, above n 97, 421; Whitelaw, above n 5, 239; but cf Sykes and Pryles, above n 6, 316.

132 Breavington, (1988) 169 CLR 41, 116.

133 Australian Law Reform Commision, above n 13, 17, 20, 37 (includes other suggestions); Nygh, above n 97, 426; Sykes and Pryles, above n 6, 318, 337f; Whitelaw, above n 5, 241f (all with further references). For references to US cases, see Sykes and Pryles, above n 6, 317.

134 See, however, Australian Law Reform Commission, above n 13, 25; Nygh above n 97; Whitelaw, above n 5, 250f.

135 See above n 120.

136 This possible defect in Commonwealth power is what Michael, Detmold fails to consider ('Australian Law Areas: The Status of Laws and Jurisdictions' (2001) 12 Public Law Review 185, 198)Google Scholar. Although this article is not principally concerned with whether the Commonwealth or the states have power to alter the decision in Pfeiffer, it should be stated that the power of the states cannot be annulled simply by stating that it would be 'better' if they did not possess it. Diversity and difference in statute law are part of the essence of a federation—otherwise there would be no need for a choice-of-law rule at all!

137 See above, n 90.

138 (1989) 168 CLR 461, 521f.

139 See also the very perceptive remarks in Greene, above n 6, 359 n 41 on the nature of choice-of-law rules. Treating them as conferring a right on the citizen, of course, goes one step even beyond treating them as a directive to the citizen.

140 Laurence, Tribe, American Constitutional Law (3rd ed, 2000) vol 1, 1247Google Scholar.

141 (1988) 169 CLR 41, 98.

142 Cf Greene, above n 6, 359.

143 Lange, (1997) 189 CLR 520, 567.

144 See above, n 127.

145 (1997) 189 CLR 520, 566.

146 (2000) 203 CLR 503, 528.

147 Australian Law Reform Commission, above n 13, 30.

148 Thus, similar (if not uniform) legislation has been enacted to convert limitation periods into substantive law: for a selection, see Limitation Act 1969 (NSW.) s 78; Accident Compensation Act 1995 (Vic.) s 138A; Choice of Law (Limitation Periods) Act 1996 (Qld); Limitation of Actions Act 1974 (Qld) s 43A; Choice of Law (Limitation Periods) Act 1994 (WA); Limitation of Actions Act 1936 (SA) s 38A; Limitation Act 1974 (Tas) s 32C; Choice of Law (Limitation Periods) Act 1994 (NT); Limitation Act 1985 (ACT) s 56.

149 (1920) 28 CLR 129, 151.

150 Whitelaw, above n 5, 248f.

151 Ibid 249.