No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 24 January 2025
(1965) 112 C.L.R. 295; (1965) 38 A.L.J.R. 444. High Court of Australia; Windeyer J.
2 See Huddart Parker Ltd v. The‘ Mill Hill’ (1950) 81 C.L.R. 502, 508.
3 However, it is interesting to note the reference to the dictum of Lord Pearce in I.C.I.v. Shatwell [1965] A.C. 656, 685; [1964] 3 W.L.R. 329, 349 as Lord Pearce obviously favours the former as shown by his approval, in that case, of dicta to that effect in Stavely Iron and Chenlical Co. Ltd v. Jones [1956] A.C. 627 and of the judgment of Fullagar J. in Darling Island Stevedoring and Lighterage Co. Ltd. v. Long (1957) 97 C.L.R. 36.
4 (1965) 112 C.L.R. 295, 301; (1965) 38 A.L.J.R. 444, 446.
5 (1940) 66 C.L.R. 344.
6 (1785) 1 T.R. 493.
7 (1919) 35 T.L.R. 642.
8 (1785) 1 T.R. 493.
9 This decision was affirmed by the House of Lords at (1787) 1 Bro. P.C. 76 but no reasons were given. During argument in Warden v. Bailey (1811) 4 Taunt. 67, 75 Lawrence J. said‘ I have heard from good private information that the reasons assigned by Lord Mansfield for reversing the judgment of the Court of Exchequer were not adopted by the House of Lords, though the judgment of the Chief Justices was affirmed.’
10 (1869) L.R. 5 Q.B. 94.
11 The Article referred to was couched in terms almost identical with those of s. 42 of the Army Act, 1881 (Imp.).
12 (1869) L.R. 5. Q.B. 94, 109. This decision has been subjected to severe criticism. Bower in his work The Law ofActionable Damage (2nd ed.) 87 n. (j) says that the dec.ision of the majority (Mellor and Lush JJ.) is undoubtedly wrong and the dissentient judgment of Cockburn C.J. right. See also the decisions of Starke and Evatt JJ. in Gibbons v. Duffell (1932) 47 C.L.R. 520.
13 (1873), L.R. 8 Q.B. 255.
14 Ibid. 271.
15 (1875) L.R. 7 H.L. 744.
16 (1918) 87 L.J.K.B. 1116.
17 Ibid. 1119.
18 (1919) 35 T.L.R. 642.
19 Ibid. 643.
20 (1869) L.R. 5 Q.B. 94, 109.
21 (1616) Hob. 134; See also Stanley v. Powell [1891] 1 Q.B. 86, 89.
22 Burdett v. Abbot (1812) 4 Taunt. 401 H.L. at 450; Halsbury's Laws of England (3rd ed., 1961) xxxiii, 849.
23 Crown Proceedings Act, 1947 (Eng.) s. 10.
24 If it is argued that the Defence legislation impliedly removes the right to bring such an action by setting out all the rights and duties of servicemen, s. 117A of the Defence Act 1903-1965 (Cth) would have had the effect of defeating the plaintiff in the present case as, by virtue of that section, the deceased was subject to the Act.
‘117A. A person, not being a member of the Defence Force, who accompanies any part of the Military Forces, whether within or beyond Australia, shall be subject to this Act as if he were a member of the Military Forces… ’
25 (1965) 112 C.L.R. 295, 299; (1965) 38 A.L.J.R. 444, 445.
26 O. 26 r. 18 provides– ‘ (1.) The Court or a Justice may order a pleading to be struck out onthe ground that it does not disclose a reasonable cause of action or answer.’
27 Halsbury's Laws of England (3rd ed. 1961) xxx, 38.
28 (1965) 112 C.L.R. 295, 296.
29 0.35 r. 2 provides– ‘ (1.) If it appears to the Court or a Justice that there is, in a proceeding, a question of law which it would be convenient to have decided before any evidence is given or any question or issue is determined, the Court or Justice may make an order accordingly and may direct that question of law to be raised for the opinion of the Court or of the Full Court, either by special case or in such other manner as the Court or Justice deems expedient’.
30 These sections provide as follows:—
‘79. The laws of each State, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding in all Courts exercising federal jurisdiction in that State in all cases to which they are applicable.
80. So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law of England as modified by the Constitution and by the statute law in force in the State in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistentwith the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise oftheirjudisdiction in civil and criminal matters.
31 (1965) 112 C.L.R. 295, 297.
32 Musgrave v. The Commonwealth (1937) 57 C.L.R. 514.
33 [1901] 2 K.B. 606.
34 (1870) L.R. 6 Q.B. 1.
35 [1901] 2 K.B. 606.
36 (1870) L.R. 6 Q.B. 1.
37 (1951) 84 C.L.R. 629.
38 Ibid. 643 per Dixon, Williams, Fullagar and Kitto JJ.—‘It seems clear that the last word has not been said on the subject, and it may be the true view that an act done in another country should be held to be an actionable wrong in Victoria if, first, it was of such a character that it would have been actionable if it had been committed in Victoria, and, secondly, it was such as to give rise to a civil liability by the law of the place where it was done’. But cf. Machado v. Fontes [1897] 2 Q.B. 231.
39 [1901] 2 K.B. 606.
40 (1870) L.R. 6 Q.B. 1.
41 (1951) 84 C.L.R. 629.
42 See Musgrave v. The Commonwealth (1937) 57 C.L.R. 514; The Queen v. Oregan;Ex Parte Oregan (1957) 97 C.L.R. 323; Deputy Commissioner of Taxation v. Brown (1958) 100 C.L.R. 32.
43 Phillips, ‘ Choice of Law in Federal Jurisdiction’ (1961), 3 Melbourne University Law Review 170, 348.
44 [1956] V.L.R. 580.
45 [1936] S.A.S.R. 152.
46 [1955] S.A.S.R. 117.
47 [1959] Qd.R. 254.
48 [1956] V.L.R. 580.
49 Ibid.
50 The cases are reviewed by Hocker ‘Lord Campbell's Act—A Comment’ (1961- 1964), 4 University of Queensland Law Journal, 451.