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Choice of Law Bill a winner

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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.


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