Federal court of australia

PROPER LAW OF THE TORT

158 The applicant advanced her case on the unspoken assumption that the law of the tort was that of Australia. In written submissions, the respondents contested that assumption. They argued that the substantive law of the claim in negligence is to be determined by the law of the place of the wrong, or threatened wrong—the lex loci delicti—and that in this case it was Papua New Guinea. There would have been a fair argument that that should have been pleaded: Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at [70] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). However, the applicant did not take that point. Nor, really, was it fully argued. In large part, that is because presumptions as to foreign law displace most of the significance of the point. Nevertheless, it is appropriate that I express a view on the question.

11.Applicable principles

159 Preliminarily, there can be no doubt that, after John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 and Zhang, it is correct to say that the lex loci delicti should be applied to foreign torts and that there is no “flexible exception”: Zhang at [75]. That, of course, leaves the more difficult question: what was the place of the tort alleged by the applicant?

160 It is appropriate to start with general principles. In Amaca Pty Ltd v Frost (2006) 67 NSWLR 635, Spigelman CJ (with whom Santow and McColl JJA agreed) started by citing the then most-recent enunciation of the principle, in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at [43] (citations removed):

Reference to decisions such as Jackson v Spittall, Distillers Co (Biochemicals) Ltd v Thompson and Voth v Manildra Flour Mills Pty Ltd show that locating the place of commission of a tort is not always easy. Attempts to apply a single rule of location (such as a rule that intentional torts are committed where the tortfeasor acts, or that torts are committed in the place where the last event necessary to make the actor liable has taken place) have proved unsatisfactory if only because the rules pay insufficient regard to the different kinds of tortious claims that may be made. Especially is that so in cases of omission. In the end the question is ''where in substance did this cause of action arise''? In cases, like trespass or negligence, where some quality of the defendant's conduct is critical, it will usually be very important to look to where the defendant acted, not to where the consequences of the conduct were felt.

161 Spigelman CJ noted that the relevant passage in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 was this, at 567:

One thing that is clear from Jackson v Spittall and from Distillers is that it is some act of the defendant, and not its consequences, that must be the focus of attention. Thus, in Distillers the act of ingestion of the drug Distaval by the plaintiff's mother was ignored, the place of that act being treated like the place of the happening of damage, as one that might have been "quite fortuitous".

162 Spigelman CJ continued (at [13]) that focusing attention on the act of the defendant—which the High Court has said is a matter that “it will usually be very important to look to” (Dow Jones at [43])—requires first that one identify the relevant “act.” That involves questions of characterisation which, “notoriously, are matters on which judgments can and do reasonably differ.” At [14], Spigelman CJ drew the following from Jackson v Spittall (1870) LR 5 CP 542 (his Honour’s emphasis): “determination of a place of a tort was said to involve identifying ‘the act on the part of the defendant which gave the plaintiff his cause of complaint’”. At [15], his Honour quoted the following passage from Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458 at 468, to the following effect (again with Spigelman CJ’s emphasis):

… It is not the right approach to say that, because there was no complete tort until the damage occurred, therefore the cause of action arose wherever the damage happened to occur. The right approach is, when the tort is complete, to look back over the series of events constituting it and ask the question, where in substance did this cause of action arise?

163 At [18]–[20], Spigelman CJ quoted the joint judgment of Mason CJ, Deane, Dawson and Gaudron JJ in Voth, interspersing his commentary, as follows:

[18] In Voth, the joint judgment of Mason CJ, Deane J, Dawson J and Gaudron J adopted the test in Jackson v Spittall, as explained in Distillers Co (Biochemicals) Ltd. With respect to the former case their Honours said (at 567):

“… It may sometimes be that the ‘cause of complaint’ is the failure or refusal of the defendant to do some particular thing — in other words, an omission. It makes no sense to speak of the place of an omission. However, it is possible to speak of the place of the act or acts of the defendant in the context of which the omission assumes significance and to identify that place as the place of the ‘cause of complaint’. That is what was done by Goddard LJ in George Monro Ltd v American Cyanamid and Chemical Corp ([1944] KB 432, at p 439), where the failure to warn as to the nature of goods was treated as an aspect of their sale. Sale took place outside the jurisdiction and accordingly, in the view of his Lordship, the tort was committed outside the jurisdiction.” (Emphasis added)

[19] With respect to Distillers Co (Biochemicals) Ltd their Honours said (at 567):

“The approach formulated in Distillers does no more than lay down an approach by which there is to be ascertained, in a commonsense way, that which is required by Jackson v Spittall, namely, the place of ‘the act on the part of the defendant which gives the plaintiff his cause of complaint’. That approach has particular point if, as was the case in Distillers, it is necessary to ascribe a place to an omission for the purpose of determining where, if at all, a tort was committed.”

[20] Each case turns on its facts and it will rarely be appropriate to try to reason on the basis of factual analogies. Product liability cases, where there is movement from one jurisdiction to another, pose the issue in an acute form.

The warning against reasoning by analogies was adopted by French CJ, Gummow, Hayne and Kiefel JJ at [23] of Puttick v Tenon Limited (2008) 238 CLR 265.

164 At [23]–[24] of Amaca, Spigelman CJ’s said this:

[23] The thrust of contemporary doctrine is that the Court must focus on issues of substance. It is necessary not to be distracted from this task by the ingenuity of a pleader.

[24] In such cases it is often necessary to look beyond a prolix smorgasbord of particulars to identify what is the true nature of the cause of action: for example, “in reality” (Buttigeig (at 629, line 28)) or “in truth” (James Hardie & Co Pty Ltd v Hall (at 573.3)). It is often necessary to set aside particulars which are “unreal” or “artificial” (Buttigeig (at 629, line 37 and at 629, line 41) and MacGregor v Application des Gaz (at 177)). …

165 The final passage from Amaca that I wish to set out is the following, from [38] of the Chief Justice’s reasons for judgment:

Expressed, as they necessarily must be expressed, at a high level of generality, the authoritative tests for determining the place of a tort are to identity the place:

• Which gives the plaintiff cause for complaint (Jackson v Spittall).

• Where in substance the cause of action arose (Distillers Co (Biochemicals) Ltd).

• Where the act or omission assumes significance (Voth).

166 Puttick, which I mentioned above, was an appeal from the Victorian Court of Appeal in Puttick v Fletcher Challenge Forests Pty Ltd (2007) 18 VR 70. That was an appeal from a judgment of a single judge of the Victorian Supreme Court in which, including because the law of the tort was that of New Zealand, the primary judge had permanently stayed the proceeding on the ground of forum non conveniens. The Court of Appeal by majority dismissed an appeal. The High Court held that the Court of Appeal had erred in attributing determinative weight to a finding, not open on the material then available, that the lex causae was the law of New Zealand. The point of the foregoing is only to say that, while the judgment of Warren CJ in the Court of Appeal was overturned as to its result, there was no issue as to her Honour’s statement of the applicable principles.

167 Having set out Voth at 566–7, much of which was also quoted by Spigelman CJ above, Warren CJ said (at [17]) that “the general tenor of the passage is straightforward: the place of the tort is where the negligent act occurred. To suggest otherwise is to subvert the basic principle that the law governing the substantive dispute in an action for negligence is the lex loci delicti commissi, that is, the law of the place where the wrong was committed” (the emphasis is her Honour’s).

168 Warren CJ set out Spigelman CJ’s three tests, which I quoted above. She said, “[e]ach of these tests will lead to the same result. The common theme is a concern with substance, not form” (emphasis added). Her Honour then quoted a passage from 569 of Voth, which is useful in the resolution of the issue in this case, and so will be quoted fully (emphasis supplied, citations removed):

[T]here are cases where, when information is being imparted, the failure to draw attention to some particular matter is, for practical purposes, the same as a positive statement as to that matter. That was the situation in Shaddock & Associates Pty. Ltd. v. Parramatta City Council [No. 1]. And it would seem that that is also the present case, for, in a context in which the appellant was providing professional accountancy services on the basis that withholding tax was not payable, the failure to draw attention to the requirement that it be paid was, for all practical purposes, equivalent to a positive statement that it was not payable. When the case is approached on that basis it is clear that, in substance, the cause of complaint is the act of providing the professional accountancy services on an incorrect basis. The same is true if the matter is approached as an omission, for the omission takes its significance from that same act of providing those services.

169 Warren CJ stated, at [19], that the import of that passage was that “the omission is not considered to have satisfied these tests where damage occurs, but rather the omission is considered to have satisfied these tests where that thing which was not done (that is omitted) should have, in fact, been carried out.”

170 I interpose that Voth concerned negligent accountancy work done by a Missouri, USA accountant and in Missouri, though for a corporation in New South Wales, Australia. The lex causae was that of Missouri. The majority in that case stated thus (at 568) (emphasis added):

If a statement is directed from one place to another place where it is known or even anticipated that it will be received by the plaintiff, there is no difficulty in saying that the statement was, in substance, made at the place to which it was directed, whether or not it is there acted upon. And the same would seem to be true if the statement is directed to a place from where it ought reasonably to be expected that it will be brought to the attention of the plaintiff, even if it is brought to attention in some third place. But in every case the place to be assigned to a statement initiated in one place and received in another is a matter to be determined by reference to the events and by asking, as laid down in Distillers, where, in substance, the act took place.