Top Scoops

Book Reviews | Gordon Campbell | Scoop News | Wellington Scoop | Community Scoop | Search

 

Choice of Law Bill a winner

Home / Publications / Choice of Law Bill a winner

Choice of Law Bill a winner

11 October 2016 | BRIEF COUNSEL

The Private International Law (Choice of Law in Tort) Bill is a useful move which deserves support.

The changes it proposes to the conflict of law rules for tort claims are simple but important.

In the lottery of Member’s Bills, winners are hard to come by. Few bills recently have brought this into focus as sharply as the Airport Authorities Amendment Bill, addressing the rules governing lost luggage disposal, which some commentators suggested was a sub-optimal use of Parliamentary time. But once in a while, a bill like the Private International Law (Choice of Law in Tort) Bill, which proposes simple but important law reform, is drawn.

Key provisions

The Member’s Bill, sponsored by National MP David Bennett, would:

• abolish the so-called “double-actionability” rule (the Rule) under which, when a tort claim is brought in New Zealand for an action committed in another jurisdiction, the New Zealand court can hear the claim only if the tort is actionable in both jurisdictions. It must then apply New Zealand law unless the other country has the more significant relationship with the occurrence and with the parties (s 6)1

• establish a place-of-the-wrong rule in which the applicable law is the law of the jurisdiction in which the events constituting the tort occur (s 7(1))

• provide rules to determine where a tort can be said to have occurred where the events occurred in more than one jurisdiction (s 7(2)), and

• provide for an exception to the place-of-the-wrong rule, allowing a court to apply the law of another jurisdiction where substantially more appropriate to do so (s 8).

Chapman Tripp comments

Chapman Tripp welcomes these changes as an example of smart, no-frills law making, bringing New Zealand into step with comparable jurisdictions.

The Rule has come under increasing attack for being, in the words of one Australian author, “notoriously difficult to understand and apply”.2 It is also arguably unnecessary as forum non conveniens rules separately determine whether a court can and should hear a claim.

For these reasons, Australia, Canada and England have moved in recent years to a place-of-the-wrong rule, which applies the law of the country where the tort was committed.3

While the section 8 exception marks a distinction from the Australian approach, which has viewed exceptions as undermining certainty, the Act’s approach is cogent and certainly preferable to the existing Rule. Any potential adjustments can be considered through the select committee process.

The Bill is therefore timely, if not overdue.

1 See Baxter v RMC Group plc [2003] 1 NZLR 304, applying the English law from Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190, which was originally derived from Phillips v Eyre (1870) 6 LR QB 1.

2 Davies, Bell and Brereton Nygh’s Conflict of Laws in Australia (9th ed, LexisNexis, 2014) at [20.2].

3 In Australia and Canada, this departure was by case law: see, e.g., John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; 172 ALR 625 and Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; 187 ALR 1; Tolofson v Jensen [1994] 3 SCR 1022. In England, the change was precipitated by the EU Rome II Regulation (see, eg, Dicey, Morris & Collins The Conflict of Laws, vol 2 (15th ed, Sweet & Maxwell, 2012), at [35R-099]) and effected by statute: Private International Law (Miscellaneous Provisions) Act 1995, ss 9-13 (excluding defamation claims).

Our thanks to Ollie Neas for writing this Brief Counsel.

ends

© Scoop Media

 
 
 
Top Scoops Headlines

 


Julian Assange: A Thousand Days In Belmarsh
Julian Assange has now been in the maximum-security facilities of Belmarsh prison for over 1,000 days. On the occasion of his 1,000th day of imprisonment, campaigners, supporters and kindred spirits gathered to show their support, indignation and solidarity at this political detention most foul... More>>

Binoy Kampmark: The Mauling Of Novak Djokovic
Rarely can the treatment of a grand sporting figure by officialdom have caused such consternation. Novak Djokovic, the tennis World Number One, has always had a tendency to get under skin and constitution, creating a large following of admirers and detractors. But his current treatment by Australian authorities, and his subsequent detention as an unlawful arrival despite being granted a visa to participate in the Australian Open, had the hallmarks of oppression and incompetent vulgarity... More>>

Binoy Kampmark: Voices Of Concern: Aussies For Assange’s Return

With Julian Assange now fighting the next stage of efforts to extradite him to the United States to face 18 charges, 17 of which are based on the brutal, archaic Espionage Act, some Australian politicians have found their voice. It might be said that a few have even found their conscience... More>>



Forbidden Parties: Boris Johnson’s Law On Illegal Covid Gatherings

It was meant to be time to reflect. The eager arms of a new pandemic were enfolding a society with asphyxiating, lethal effect. Public health authorities advocated various measures: social distancing, limited contact between family and friends, limited mobility. No grand booze-ups. No large parties. No bonking, except within dispensations of intimacy and various “bubble” arrangements. Certainly, no orgies... More>>

Dunne Speaks: Question Time Is Anything But
The focus placed on the first couple of Question Time exchanges between the new leader of the National Party and the Prime Minister will have seemed excessive to many but the most seasoned Parliamentary observers. Most people, especially those outside the Wellington beltway, imagine Question Time is exactly what it sounds... More>>



Gasbagging In Glasgow: COP26 And Phasing Down Coal

Words can provide sharp traps, fettering language and caging definitions. They can also speak to freedom of action and permissiveness. At COP26, that permissiveness was all the more present in the haggling ahead of what would become the Glasgow Climate Pact... More>>