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Our Fragmented Federation: Forum Bias and Forum Shopping in Australia

Published online by Cambridge University Press:  24 January 2025

Cameron Moore
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Extract

In Breavington v Godleman, Deane J stated: Basic to the jurisprudence of this country is the notion that the courts apply, as distinct from make, the law, that is to say, that the law operates contemporaneously to regulate lawfulness and consequences of conduct independently of judicial proceedings. In that context, it would be to substitute the bedlam of a Babel for an ordered system of law to recognise the right of each of the country's court systems, notwithstanding the place of this Court inall of them, to speak at the same time but in conflicting terms about the lawfulness, consequences or attributes of a particular act or thing in a particular place at a particular time.

Type
Research Article
Information
Federal Law Review , Volume 22 , Issue 1 , March 1994 , pp. 171 - 193
Copyright
Copyright © 1994 The Australian National University

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References

1 (1988) 169 CLR 41 at 135. See also Wilson and Gaudron JJ at 88.

2 This point was made by Deane J in Breavington (1988) 169 CLR 41 at 122-123.

3 It is not intended in this article to deal with the subject of crim.

4 Musgrave v The Commonwealth (1937) 57 CLR 514, and see Breavington (1988) 169 CLR 41 at 85.

5 Breavington (1988) 169 CLR 41 at 123 per Deane J; Mabo v Queensland (No 2) (1992) 175 CLR 1 at 29 per Brennan J (Mason CJ and McHugh J agreeing) and at 79 per Deane and Gaudron JJ. See also s 80 Judiciary Act 1903 (Cth).

6 Such as overriding statutes of the forum (see below at 175-180).

7 Law Reform Commission, Choice of Law (Report No 58,1992).

8 Under the previous Service and Execution of Process Act 1901 (Cth) and relevant State provisions.

9 By virtue of s 5, Territories are to be regarded as States.

10 Throughout this article, unless specifically stated, the word “State” is used to mean “State or Territory”.

11 (1991) 174 CLR 1 at 22.

12 Ibid at 41.

13 Ibid at 44. See however the strong dissent of Mason CJ at 18-30, and Deane J at 46-52.

14 Pursuant to agreement by the State Attorneys-General. At the time of writing the only provisions enacted are: Limitation Act 1969 (NSW), s 78, inserted by Limitation(Amendment) Act 1993, s 3, and Limitation of Actions Act 1936 (SA), s 38A, inserted by Limitation of Actions (Mistake of Law or Fact) Amendment Act 1993, s 3.

15 (1993) 176 CLR 433.

16 See below at 180-182.

17 [1971] AC 356.

18 (1993) 176 CLR 433 at 456.

19 [1976] 2 NSWLR 192.

20 (1993) 176 CLR 433 at 458.

21 Opeskin, B, “Statutory Caps on Damages in Australian Conflict of Laws ” (1993)Google Scholar 109 LQR 533 at 537, described this as arguably a distinction without a difference.

22 Eg, Black-Clawson Limited v Papierwerke AG [1975] AC 591.

23 Section 14 of the draft State and Territory Choice of Law Bill, and s 81L to be inserted in the Judiciary Act 1903 (Cth). The sections are in identical terms.

24 See, eg, Stevens v Head (1993) 176 CLR 433 at 460.

25 (1993) 1 Qd R 465.

26 Since all parties to the action were Queensland residents, this was not a case involving federal jurisdiction.

27 (1993) lQdR 465 at 466.

28 The Motor Vehicles Insurance Act 1936 (Qld).

29 (1993) lQdR 465 at 468.

30 (1988) 169 CLR 41.

31 (1988) 169 CLR 172.

32 Note that this involved an implicit characterisation of the claim as a tortious one, notwithstanding that the claim for the top-up amount was a direct action against the nominal defendant: see Ryder v Hartford Insurance Co [1977] VR 257, and cf Plozza v South Australian Insurance Co Ltd [1963] SASR 122 and Hodge v Club Motor Insurance Agency Pty Ltd [1974] 7 SASR 86.

33 (1994) 120 ALR 605.

34 (1993) 176 CLR 433.

35 (1994) 120 ALR 605 at 616 per Dawson and Toohey JJ and at 621 per McHugh J.

36 (1988) 169 CLR 41. This case is discussed later in this article.

37 (1994) 120 ALR 605 at 627 per McHugh J.

38 Ibid at 619 per Dawson and Toohey J.

39 Section 118 and the recent cases construing it are discussed later in this article.

40 (1994) 120 ALR 605 at 611.

41 Ibid.

42 Hunt v BP Exploration Co (Libya) Limited (1980) 144 CLR 565 at 570-572; Kay&s Leasing| Corporation Pty Limited v Fletcher (1964) 116 CLR 124 at 142 per Kitto J; Goodwin v Jorgensen (1973) 128 CLR 374.

43 (1973) 128 CLR 374.

44 (1973) 128 CLR 374 at 383.

45 (1988) 166 CLR 1 at 14.

46 (1932) 48 CLR 391 at 428.

47 See, eg, Barcelo (1932) 48 CLR 391, Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society (1934) 50 CLR 581; Douglas Financial Consultants Pty Limited v Price [1991] 1 Qd R 243.

48 (1934) 50 CLR 581 at 601.

49 (1964) 116 CLR 124 at 143.

50 [1991] lQdR 243.

51 (1991) 174 CLR 1 at 36.

52 (1870) LR6QB1 at 28-29.

53 (1951) 84 CLR 629 at 642.

54 (1988) 169 CLR 41.

55 Ibid at 98. Note: for interstate conflicts only. Section 118 does not apply to cases involving international conflicts, and such cases would continue to be governed by the Phillips v Eyre rule on this approach.

56 Ibid at 137.

57 [1971] AC 356.

58 (1988) 169 CLR 41 at 77.

59 See, eg, Byrnes, v Groote Eylandt Mining Co Pty Ltd (1990)Google Scholar 19 NSWLR 13; Woolford v The Nominal Defendant (Qld) [1993] 1 Qd R 465; Guidera v Government Insurance Office of New South Wales (1990) Aust Torts Reports §81-040.

60 (1991) 174 CLR 1 at 38.

61 See Breavington (1988) 169 CLR 41 at 73-74.

62 McKain (1991) 174 CLR 1 at 39.

63 See, eg, The Volvox Hollandia [1988] 2 Lloyd&s Rep 361 at 371 and Charman v WOC Offshore BV [1993] 1 Lloyds Rep 378 at 385.

64 Robinson v Shirley (1982) 149 CLR 132 at 136.

65 Eg, the rule in Phillips v Eyre.

66 (1992) 174 CLR 455.

67 Ibid at 475.

68 Ibid.

69 Deane, Toohey and Gaudron JJ.

70 Consisting of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and Acts by the same name in every State. The State Acts are virtually identical.

71 Federal jurisdiction is excluded from the definition of “State matter ” in s 3(1) of the State i Acts.

72 Such actions involve the exercise of federal jurisdiction by virtue of s 75(iv) of thei Constitution.

73 NEC Information Systems Australia Pty Ltd v Iveson (1992) FCR 258 at 264-265.

74 (1992) 38 FCR 303 at 312.

75 The term “subject-matter ” is used broadly in this article and may include the nature of the parties to the dispute: see s 75(iii)-(v) of the Constitution; cf the narrower use by Gummow J in David Syme (1992) 38 FCR 303 at 319.

76 This point was made by Pincus J in an extra-curial paper “Cross Vesting of Jurisdiction ” (1989) 19 QLSJ 259 at 260.

77 Eg, Seymour-Smith v Electricity Trust of South Australia (1989) 17 NSWLR 648.;

78 Eg, New South Wales, Pt 20 r 2B, and Queensland, O 98 “Cross vesting ”.

79 Laurie v Carroll (1958) 98 CLR 310 at 328.

80 Ibid at 328-332.

81 (1992) 38 FCR 303.

82 See below at 186.

83 Section 5(7).

84 The words in square brackets are due to minor differences in wording between the Commonwealth and State Acts.

85 A question remains as to whether a matter involving State jurisdiction that could have been brought in the Federal Court in its accrued jurisdiction is now to be regarded as a cross-vested matter: see D Kelly and J Crawford, “Choice of Law Under the Cross-vesting Legislation ” (1988) 62 AL/589 at 591.

86 (1992) 38 FCR 302 at 330.

87 Felton v Mulligan (1971) 124 CLR 367 at 373, 382,388 and 402-403.

88 Most notably D Kelly and J Crawford, above n 85 and G Griffith, D Rose and S Gageler, “Choice of Law in Cross-vested Jurisdiction: A Reply to Kelly and Crawford ” (1988) 62 ALJ 698.

89 Unreported, New South Wales Supreme Court, Common Law Division, 7 February 1992.

90 Discussed by Gummow J in David Syme (1992) 38 FCR 302 at 315.

91 See, eg, the use of the term in McKain; cf Gummow J in David Syme at 316.

92 Above n 89.

93 See also the later decision in the same matter, Waterhouse v The Australian BroadcastingCorporation (1992) 27 NSWLR1 at 3-4 where Hunt CJ recommended the reform of s 11.

94 This problem is discussed and the following points are contained in the article by D Kelly and J Crawford, above n 85.

95 Sub-section (1).

96 See, eg, D Kelly and J Crawford, above n 85, at 590; G Griffith et a, above n 88 at 703; Sykes, E and Pryles, M Australian Private International Law, (3rd ed 1991) at 252; Waterhouse v Australian Broadcasting Corporation (1992)Google Scholar 27 NSWLR1, cf Law Reform Commission, Report No 58 at 22.

97 G Griffith et al, above n 88.

98 Ibid at 702.

99 Ibid at 705.

100 McKain (1991) 174 CLR 1 at 36.

101 (1988) 169 CLR 41.

102 McKain (1991) 174 CLR 1 at 53.

103 Breavington (1988) 169 CLR 41 and McKain (1991) 174 CLR 1.

104 Section 4 (2) of the draft State and Territory legislation and s 81B(2) of the draft insertion into the Judiciary Act 1903 (Cth).

105 Cf Native Title Act 1993 (Cth), s 12.

106 See the similar suggestion by Mason CJ in Breavington (1988) 169 CLR 41 at 83; cf Kenton v Kenton (1918) 25 CLR 291 at 298 per Barton J.

107 The Territories could presumably be covered by s 122 of the Constitution.