Vicki Vanessa Zappacosta v the Queanbeyan Bowling Club Limited [1991] ACTSC 117 (20 December 1991)

SUPREME COURT OF THE ACT

VICKI VANESSA ZAPPACOSTA v. THE QUEANBEYAN BOWLING CLUB LIMITED
S.C. No. 473 of 1990
Practice and Procedure - Private International Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

Practice and Procedure - Validity of service of writ - Conditional appearance and Defence - Whether submission to jurisdiction.

Private International Law - Tort - Negligence - Act committed in NSW - Death in ACT - Action in ACT Court - Venue - Choice of law - Relief.

Workers' Compensation Act 1987 (NSW), s.116(4), 149(2), 151(1)

Compensation (Fatal Injuries) Act 1968 (ACT)

Compensation to Relatives Act 1897 (NSW)

Service and Execution of Process Act 1901 (Cth)

Corporations Law 1989 (Cth), ss.109Y, X,

Supreme Court of the ACT Rules, O.12 3.1,

Dust Diseases Tribunal Act 1989 (NSW), s.11(1)

Wrongs Act 1928 (Vic)

Rules of the Supreme Court of NSW (Pt 10)

Cotter v Workman (1972) 20 FLR 318

Coppin v Tobler Bros Canberra Marine Centre (1980) 1 NSWLR 183

Seymour-Smith v Electricity Trust SA (1989) 17 NSWLR 648

Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41

"Further Aspects of the Cross-Vesting Scheme" (1988) 62 ALJ 1016

Baffsky v John Fairfax and Sons Ltd (1990) 97 ACTR 1

Victorian Broadcasting Network Ltd v Whitlam (1980) 31 ALR 184

Dickson v Law and Davidson (1895) 2 Ch 62

Firth and Sons v De Las Rivas (1893) 1 QB 768

Reid Murray Development Queensland (Pty) Ltd v Lynwood Holdings Pty Ltd and Alfred Daniel Walsh (1964) QWN 1

Capewell v Seltino Pty Ltd (1986) 2 Qd R 2

In re Roche; Allen v Helton (1939) QWN 25

Byrnes v Groote Eylandt Mining Co Pty Ltd (1990) 93 ALR 131

Maple v David Syme and Co Ltd (1975) 1 NSWLR 97

Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538

Mangion v James Hardie and Co Pty Ltd (1990) 20 NSWLR 100

Koop v Bebb [1951] HCA 77; (1951) 84 CLR 629

Flaherty v Girgis [1987] HCA 17; (1987) 162 CLR 574

Luke v Mayoh [1921] HCA 39; (1921) 29 CLR 435

Seward v Vera Cruz (owners) (The Vera Cruz) (1884) 10 App Cas 59

Hall v ACT Electricity Authority (1980) 31 ALR 557

Adastra Aviation Ltd v Airparts (NZ) Ltd and Anor (1964) NZLR 393

Wilson Electric Transformer Company Pty Ltd v Electricity

Commission of NSW (1968) VR 330

Ansett Transport Industries (Operations) Pty Ltd v Alenia

Aeritalia and Selenia S.p.A. (ACTSC; Miles CJ; 27/11/91; unreported)

Buttigeig v Universal Terminal and Stevedoring Corporation (1972) V.R. 626

Distillers Co. (Bio-Chemicals) Ltd v Thompson (1971) AC 458

Keevers v O'Neill (1977) 1 NSWLR 587

Baldry v Jackson (1977) 1 NSWLR 494

"Conflict of Laws" Nygh; 4th ed.; 37

Nominal Defendant v Motor Vehicle Insurance Trust of Western Australia (1983) 50 ALR 511

HEARING

CANBERRA
20:12:1991

Counsel for the Plaintiff/Respondent: Mr D. Campbell

Instructing solicitors: Messrs Scott Sheils and Glover

Counsel for the Defendant/ Applicant: Mr J. Hartigan

Instructing solicitors: Messrs Vandenberg Reid Pappas

and MacDonald

ORDER

The Notice of Motion dated 16 May 1991 be dismissed.

Leave be given to the plaintiff to amend the Statement of Claim within seven days hereof.

DECISION

On 18 December 1987, Juilio Zappacosta (the deceased), a greenkeeper employed by the defendant, intervened in a fight between two drunken guests of the club. He was seriously injured. The club's premises are situated at Campbell Street, Queanbeyan, in the State of New South Wales.

2. Mr Zappacosta died of his injuries on 14 January 1988 at Royal Canberra Hospital in the Australian Capital Territory.

3. On 27 October 1989, in the New South Wales Compensation Court, an award was made in favour of the dependants of the deceased pursuant to the provisions of s.116(4) of the Workers' Compensation Act 1987 (NSW).

4. These proceedings were commenced on 31 July 1990. The plaintiff is the widow of the deceased. Her claim is pleaded as being pursuant to the Compensation (Fatal Injuries) Act 1968 (ACT) rather than the Compensation to Relatives Act 1897 (NSW).

5. On 16 May 1991 the defendant entered a "conditional appearance". Instead of then applying for a stay of proceedings or to set aside the service of the Writ of Summons on the defendant, the defendant also filed and delivered a Defence. That Defence denies that this Court has jurisdiction to entertain the claim in question. It alleges that the law of New South Wales should apply in any event. It asserts that the plaintiff's cause of action does not arise in the Territory. The Defence then goes on to plead substantively to the Statement of Claim. It also alleges that the payments to the plaintiff pursuant to the Workers' Compensation Act 1987 (NSW) entitle it to defend the plaintiff's claim. I assume that to be an assertion that that Act bars a claim such as that brought by the plaintiff if benefits under the Act have been sought and paid.

6. By Notice of Motion dated 16 May 1991 the defendant seeks to have this action struck out for want of jurisdiction. Alternatively, it seeks a declaration that the substantive law applicable is that of New South Wales.

7. A number of issues are raised by this application. It is necessary, first, to consider whether service of the Writ has been validly effected. That is, whether this Court has validly commanded the defendant to appear upon pain of judgment in default. The next question is whether the defendant has, by appearing, albeit conditionally, and then filing a substantive defence, waived any defect in service and/or submitted to the jurisdiction of this Court. The third question is whether the cause of action asserted by the plaintiff is one which this Court has jurisdiction to entertain. The fourth question is whether the cause of action arises substantively by virtue of New South Wales or Territory law. In considering the latter two questions, the reference in paragraph 1 of the Statement of Claim to the Compensation (Fatal Injuries) Act 1968 (ACT) is not decisive. If that reference is wrong, it can be easily amended.
Validity of Service of Writ of Summons -

8. The Writ of Summons herein was served by delivery of a sealed copy of it to the premises of the defendant club in Queanbeyan, New South Wales. It was endorsed pursuant to the provisions of the Service and Execution of Process Act 1901 (Cth) (SEP Act). The Statement of Claim was endorsed on the Writ.

9. The provisions of the Corporations Law 1989 (Cth) (s.109Y) were not availed of. However, s.109X of that Law expressly preserves other lawful modes of service.

10. Since O.12 r.1 of the Rules of this Court was repealed following Cotter v Workman (1972) 20 FLR 318, those Rules have not provided for service of process out of the jurisdiction of this court but within the Commonwealth.

11. Although Cotter v Workman (supra) was applied by Master Allen in Coppin v Tobler Bros Canberra Marine Centre (1980) 1 NSWLR 183, the correctness of that decision was doubted by Rogers C.J. Comm D in Seymour-Smith v Electricity Trust SA (1989) 17 NSWLR 648.

12. In Seymour-Smith's case, his Honour took the view that by virtue of the rules of private international law, the Supreme Court of New South Wales had jurisdiction to enforce rights arising out of acts occurring outside the territorial limits of New South Wales. The right to command appearance is procedurally subordinate to that substantive right.

13. Given that the High Court has now declared that the law to be applied in deciding tort claims will, at least within Australia, be the lex loci delicti commissi, the consequences of the choice of one Australian jurisdiction over another will not alter the substantive rights of the parties (see Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41).

14. His Honour also noted that the complementary cross-vesting legislation has significantly altered the consequences of inappropriate service of process. It is, of course, absurd to regard other jurisdictions within Australia as if they were foreign countries. The cross-vesting legislation was intended to vest in each superior Court of Australia not only the substantive jurisdiction of each such Court but also the procedural jurisdiction.

15. Thus, his Honour held, a writ issued out of the Supreme Court of New South Wales could be served in South Australia without reliance on the Rules of the Supreme Court of New South Wales. His Honour endorsed the opinion expressed by Mr Griffith QC, and Messrs Rose and Gageler in an article entitled "Further Aspects of the Cross-Vesting Scheme" (1988) 62 ALJ 1016, namely, that State Courts granted cross-vesting jurisdiction have power to authorise service of their writs anywhere else in Australia.

16. The effect of that view being accepted may well be that the SEP Act has become redundant.

17. The practical utility of this point of view is undeniable. Sterile arguments as to the validity of process or the effectiveness of service are avoided. They can be replaced, if the need arises to dispute the appropriateness of the forum, by an application for removal of the cause in question "in the interests of justice" to a more appropriate forum.

18. Whilst I do not accept Rogers J's view that no weight at all attaches to a plaintiff's choice of venue (see Baffsky v John Fairfax and Sons Ltd (1990) 97 ACTR 1) there will not be many cases where the fate of an application will depend on that factor. In any event, it is a far more rational approach to regard the issue as one of venue rather than jurisdiction.

19. It may well be that Victorian Broadcasting Network Ltd v Whitlam (1980) 31 ALR 184 would now be differently decided if service had been able to be effected in the exercise of cross-vested jurisdiction rather than pursuant to the SEP Act.

20. Order 78 r.6.03 would allow service of process in such a case. Of course, leave would be required (see O.78 r.6.04). However, in that case, as here, the writ was served pursuant to the provisions of the SEP Act. There is no invalidity in either the issue or the service of the writ. It would be appropriate to stay proceedings where the provisions of s.11 of the SEP Act cannot be met by the plaintiff (see Victorian Broadcasting Network Ltd v Whitlam (supra) 192).

21. It would not be appropriate to stay proceedings, the effect of the cross-vesting legislation being put to one side, if either the defendant has appeared, or if one of the conditions in s.11(1) of the SEP Act is satisfied.
Conditional Appearance -

22. It was not easy to distill from the defendant's submissions what it intended to achieve by way of its "conditional appearance". That particular procedure is usually intended to reserve to the defendant the right to object to the writ or its service as irregular. That option is not open to this defendant as service was clearly not irregular nor was the writ irregularly issued. (See Victorian Broadcasting Network Ltd v Whitlam (supra.)

23. The defendant's real objection is that this matter is, in reality, a New South Wales action. It is suggested that it has no relevant nexus with the Territory so that leave to proceed would not be granted under s.11(1) of the SEP Act.

24. The defendant did not obtain leave of the Court to enter a conditional appearance. O 13 r.17 deals with setting aside of a writ or the service thereof. It provides:-

"A defendant before appearing may, without obtaining an order to
enter or entering a conditional appearance, serve notice of motion
to set aside the writ or the service upon him of the writ or of
notice of the writ or to discharge the order authorizing such
service."

It appears that various procedures have been used to regulate conditional appearance (or appearance under protest). Under this provision, it does not seem that leave is required, although the appearance will become unconditional if the defendant expressly or implicitly waives the objection by reason of which the appearance is offered only conditionally. It is not necessary, however, to enter that appearance before applying to test the regularity of the writ or its service or the jurisdiction of the court to entertain the cause of action asserted in the writ. Some jurisdictions do expressly require leave to file a conditional appearance to avoid delay in testing the objection asserted (for example, E.O. O.12 r.7 (1962)). There was a conditional appearance by leave in Dickson v Law and Davidson (1895) 2 Ch 62. In Firth and Sons v De Las Rivas (1893) 1 QB 768 an appearance accompanied by a protest was held effective to permit objection to the jurisdiction without leave.

25. Accordingly, the conditional appearance entered in this matter cannot be regarded as a submission to the jurisdiction. I do not consider that the Defence filed can be construed as a waiver of the objection to jurisdiction. That objection is expressly relied upon in the Defence that was filed. It seems to me that the substance of the defendant's position should be given effect to even if the substantive matters of defence are not clearly expressed to be alternatives to those objections. That was the approach taken in Firth and Sons v De Las Rivas (supra) and I propose to follow it.

26. It would, no doubt, remove doubts if a similar provision was made by the Rules of this Court as are made by the Rules of the Supreme Court of Victoria. Rule 8.08 of those Rules provides that a conditional appearance may be entered without leave but becomes unconditional unless the defendant makes an appropriate application within 14 days from the filing of it.
Service under the Service and Execution of Process Act 1901 (Cth) s.11(1) -

27. There is, as it happens, no objection to the form of the writ or the service of it pursuant to s.4 of the SEP Act. It is not alleged that service was ineffective for any non-compliance with the provisions of that Act. It is submitted, however, that as the subject matter of the litigation as pleaded does not satisfy any part of s.11(1), the Court should stay the proceedings in this jurisdiction.

28. A conditional appearance does not dispense with a need for the plaintiff to obtain leave to proceed under s.11(1). The Defence filed, being subject to the conditional appearance, is ineffectual to prevent the plaintiff from applying for and obtaining default judgment if the cause pleaded satisfies any of paragraphs (a) to (f) of s.11(1).

29. That view is supported by Reid Murray Development Queensland (Pty) Ltd v Lynwood Holdings Pty Ltd and Alfred Daniel Walsh (1964) QWN 1. In that case Stanley J expressed the opinion that although the SEP Act makes no provision for a conditional appearance, a conditional appearance, whether procedurally necessary or not, is not an "appearance" within the meaning of s.11(1). The defendant was unsuccessful in persuading the Court that the plaintiff should be denied leave to proceed. As a result, Stanley J gave the plaintiff leave to proceed but stayed that leave for 14 days to enable the defendant to appear unconditionally and file a defence thereafter as provided for by the Rules.

30. Under the SEP Act, a writ issued in the manner and form prescribed may be served anywhere in Australia without leave. A defendant may well desire a conditional appearance to stand as unconditional if the objection to be taken is dismissed. In that case, leave to file the conditional appearance should be sought. That leave will be granted (usually ex parte) on terms that if no application is made within a prescribed time (usually 14 days) to set aside the writ or the service of it, or to stay the proceedings for want of a prescribed nexus (for example, s.11(1) SEP Act), the appearance would stand as unconditional (see Capewell v Seltino Pty Ltd (1986) 2 Qd R 2, 11-13 per Master Lee QC). The same position may be arrived at by stating an objection on the face of the appearance which does not relate to a matter that goes to issue, service or nexus. (For example, see In re Roche; Allen v Helton (1939) QWN 25.) In that case, the appearance will be perceived as being, in reality, unconditional.

31. The usual form of conditional appearance leaves the defendant at large as to the nature and extent of the objection to be taken. However, I would accept the Defence filed in this matter as stating the objections to be taken. The Defence denies substantive jurisdiction over the subject matter of the litigation, either absolutely or by reason of a lack of sufficient nexus. It leads to the result, the defendant submits, either as a result of s.11(1) SEP Act or as a matter of discretion that the proceedings should be stayed in this jurisdiction.

32. I will consider first the question of jurisdiction.
Jurisdiction over subject matter of the litigation -

33. The defendant's written submissions claimed that this Court has -

"...no jurisdiction to entertain an action under the Compensation
(Fatal Injuries) Ordinance (sic)."

As a general statement, that submission is self-evidently wrong. This Court must have jurisdiction to adjudicate on a claim arising under Territory legislation. However, it seems, from oral argument, that the defendant's contention is that, in the circumstances of this case, no claim arises under the Compensation (Fatal Injuries) Act 1968 (ACT). It is contended that, as a result, the court has no jurisdiction to entertain the action in question.

34. That contention must also fail. In the first place, the claim is that the plaintiff's cause of action arises by virtue of Territory law. If that assertion is legally incorrect then an application could be made to strike out all or part of the Statement of Claim. In the second place, if the plaintiff's claim really arises under the Compensation to Relatives Act 1898 (NSW), there is no doubt that, under the rules of private international law, assuming the test in Breavington v Godleman (supra) is satisfied, this Court will entertain such an action and give appropriate remedies. The choice of law defining those rights and remedies is quite another matter. The test in Breavington v Godleman (supra) applies to statutory causes of action as much as to those which arise under common law (see Byrnes v Groote Eylandt Mining Co Pty Ltd (1990) 93 ALR 131).

35. It follows that this court has jurisdiction over the subject matter of the litigation whether or not the cause of action arises by virtue of ACT or NSW law. Of course, there may well be a procedural bar to the continuation of the proceedings in the absence of a submitting appearance (for example, s.11(1) SEP Act). There could be, also, a discretionary bar to the matter proceeding, for example, forum non conveniens or otherwise (see Maple v David Syme and Co Ltd (1975) 1 NSWLR 97; Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538).

36. Mr Hartigan, for the defendant, contended that claims by relatives for the death of a worker had been inadvertently abolished in New South Wales. If that is right and if the cause of action is a product of New South Wales law, he submitted, there is no justiciable cause in this Territory. He referred to Mangion v James Hardie and Co Pty Ltd (1990) 20 NSWLR 100. However, that case merely determined that the Dust Diseases Tribunal had jurisdiction to award damages pursuant to the Compensation to Relatives Act 1897 (NSW) where the death complained of was caused by a dust related condition within the meaning of the Dust Diseases Tribunal Act 1989 (NSW). That action can properly be described as a claim for damages "in respect of that dust-related condition or death" (Dust Diseases Tribunal Act 1989 (NSW), s.11(1)). It does not seem to assist in determining the question of the effect of the Workers' Compensation Act 1987 (NSW).

37. Section 151E(1) of the Workers' Compensation Act 1987 (NSW) applies Division 3 of that Act to:-

"...an award of damages in respect of:
(b) the death of a worker resulting from or caused by an
injury, being an injury caused by the negligence or other tort of
the worker's employer."

It is true that the right to sue for damages had been abolished as from 30 June 1987 (see s.149(2)). Section 149(2) of the Act had barred actions under the Compensation to Relatives Act 1897 as from 30 June 1987, where the action would have been against an employer or a person for whom the employer was vicariously liable.

38. Those rights were, on 1 February 1990, retrospectively restored (see s.151U), albeit in a greatly limited form. The abolition of that bar seems to be as complete as it could be. The Compensation to Relatives Act itself was never repealed or amended. The right to enforce the remedies provided by that Act was, temporarily, barred but the right of action was not extinguished or modified. Indeed if it had been, the terms of s.151U are wide enough to remove retrospectively that modification.

39. Section 151 of the Workers' Compensation Act 1987 preserves all other rights save insofar as that Act otherwise expressly provides. There is no "express" provision repealing, amending, affecting or recognising rights conferred by the Compensation to Relatives Act 1897, save as follows.

40. Section 151N(5) of the Workers' Compensation Act 1987 provides:-

"In an action for the award of damages under the Compensation to
Relatives Act 1897, section 10(4) of the Law Reform (Miscellaneous
Provisions) Act 1965 does not apply so as to prevent the reduction
of damages by the contributory negligence of the deceased person."

It is not necessary at this time to consider whether an assessment of damages under the Compensation to Relatives Act 1897 is affected by any other provision contained in Division 3 of the Workers' Compensation Act 1987.

41. It is enough to conclude that the right of action under the Compensation to Relatives Act 1897 has not been abolished in New south Wales.

42. I am satisfied that, whether liability arises in this case under the Compensation to Relatives Act 1897 (NSW) or the Compensation (Fatal Injuries) Act 1968 (ACT), the rules of private international law enable this Court to adjudicate upon the subject matter of the litigation (see, for example, Koop v Bebb [1951] HCA 77; (1951) 84 CLR 629).
Procedural bar under s.11(1) Service and Execution of Process Act 1901 (Cth) -

43. In Victorian Broadcasting Network Ltd v Whitlam (supra) the Full Court of the Federal Court of Australia, on appeal from this Court, affirmed the right of a defendant, even if service has been validly effected under the SEP Act, to move to stay proceedings if leave to proceed in default of appearance would be refused.

44. That decision is binding on me. It was also cited with approval by Mason ACJ, Wilson and Dawson JJ in Flaherty v Girgis [1987] HCA 17; (1987) 162 CLR 574, 586. It may be added that the majority judgment in the latter case affirmed the authority of Luke v Mayoh [1921] HCA 39; (1921) 29 CLR 435. That holds, therefore, that s.11(1) does not imply any restriction on the matters which may be the subject of claims made in writs issued for service out of the jurisdiction.

45. It may be noted that, in this Territory, apart from the effect of the Cross-vesting legislation and Rules made thereunder, the only authority for extra-Territorial service of the process of this Court within Australia is the SEP Act.

46. Section 11(1)(d) permits leave to proceed where it is made to appear that:-

"... any act or thing ... for which damages are sought to be
recovered, was done ... within that ...part (of the Commonwealth
in which the writ was issued)."

The death of the deceased is the event in respect of which damages are sought. The wrong to the relatives may be regarded as having been committed either in the jurisdiction where the deceased suffered injury or where he died. If it is necessary to decide on one place as the place of the wrong, it could be either New South Wales or this Territory. Section 11(1)(d) does not, however, necessarily require a determination as to the place of the wrong. It could permit enforceable process to issue from any jurisdiction in which one or more of the acts or events combining to constitute the cause of action for damages took place.

47. In Koop v Bebb (supra) the deceased was negligently injured in New South Wales. He died in Victoria. Action was brought in Victoria, purportedly under the Wrongs Act 1928 (Vic). The defendant objected that the action arose under the Compensation to Relatives Act 1897 (NSW) and that the action could only be brought in New South Wales.

48. The Court was unanimous in the view that the action was maintainable in Victoria. It was unnecessary to decide whether the defendants could have been compelled to submit to the jurisdiction of the Victorian Court. The defendant had entered an unconditional appearance. The majority (Dixon, Williams, Fullagar and Kitto JJ) regarded the Victorian Act as having the following effect:-

(641) "Section 15 (equivalent of s.7 of the ACT Act) should
therefore be considered as enacting a rule of the law of Victoria,
to be applied in the Victorian courts, and to be applied as it
stands, without textual emendation. Its effect in relation to a
case which contains an extra-Victorian element depends upon the
application of the rules of private international law which form
part of the law in Victoria. The section may be considered as
simply creating an addition to the category of actionable wrongs by
reference to which, in a case involving a foreign element, the rules
of private international law give a right of action in Victoria in
conditions which they define. Alternatively the section may be
regarded as giving a right of action in Victoria whenever the
condition is fulfilled that the deceased person (if he had survived)
would have been entitled by the law of Victoria, including its rules
of private international law, to recover damages for the act,
neglect, or default which caused his death. If the first view be
accepted, the question in the present case is whether the rules of
Victorian private international law operate to give the plaintiffs a
right of action against the defendants in Victoria, having regard to
the fact that they would have had a right of action against him
under Part III of the Wrongs Act if his negligence had been
committed in Victoria. On the other hand, if the second view be
accepted, the question is only whether the rules of private
international law would have given the plaintiff's father, if he had
survived, a right of action in Victoria against the defendant for
his negligence committed in New South Wales."

On any view of it, the wrong was actionable in Victoria. The majority found it unnecessary to decide whether the genesis of liability was the Victorian or New South Wales Act. Nor did the majority need to advert to the question whether the act or thing for which damages were sought was the wrongful act of the defendant or the death which resulted or whether it was both.

49. McTiernan J, in a concurring judgment, based his conclusion on the proposition that the cause of action accruing to the dependants arose in and was defined by the law of New South Wales, including the rights conferred by the New South Wales Act. The place of death was irrelevant to the determination of the legislative genesis of the wrong sued upon. The wrong so created was, however, actionable in Victoria by virtue of the rules of private international law recognized by the courts of Victoria.

50. Breavington v Godleman (supra) did not endorse Koop v Bebb (supra) insofar as that case assumed that the lex fori was the law to be applied once the Victorian court decided that it had jurisdiction. However, the judgments in that case do not address the issue as to the determination of place of the wrong, that is that place the law of which constitutes the lex loci delicti commissi. They do address the issue of the choice of law. The choice of law is to be the lex loci delicti commissi. There can be only one such place according to our rules of private international law. I do not need, as between Australian jurisdictions, to consider the doctrine of renvoi.

51. There is, of course, no doubt that the cause of action in favour of the dependants of the deceased is not a mere transfer of the cause of action that the deceased would have had but for his death (see The Vera Cruz (1884) 10 App Cas 59). It is a separate cause of action to which it is a necessary condition precedent that the deceased could have sued in respect of the injury causing his or her death and recovered damages. It is upon the death of the injured person that the cause of action arises.

52. However, it is s.11(1)(d) of SEP Act which requires construction. It does not necessarily require merely an identification of the lex loci delicti commissi. On the other hand, not every matter associated with the wrong alleged is a relevant "act or thing" under s.11(1)(d).

53. In Hall v ACT Electricity Authority (1980) 31 ALR 557, a fire started in this Territory by an allegedly negligent act spread to and caused damage to the property of persons in New South Wales.

54. The defendant was served in the Territory with a writ issued in New South Wales endorsed for service in the Territory. A conditional appearance was entered. The defendant objected that no nexus recognized by s.11(1) of the SEP Act existed and the action should be stayed. The plaintiff relied, in the alternative, on the Rules of the Supreme Court of NSW (Pt 10).

55. In acceding to the defendant's application, Master Sharpe made the following observation:-

(559) "The mere suffering of damage within the jurisdiction has
never been held to invoke s.11(1)(d)."

The Master referred to a contrary opinion of Hardie Boys J in Adastra Aviation Ltd v Airparts (NZ) Ltd and Anor (1964) NZLR 393. In the latter case, his Honour distinguished the form of an English rule authorising service out of the jurisdiction, where the nexus was "a tort committed within the jurisdiction", from the New Zealand rule which referred to "any act for which damages are claimed". In the former case, the place of the wrongful act (that is the locus delicti commissi) would be the place where "the tort" was committed. It was not committed where the damage is suffered (if that place is different). His Honour held, however, that damage being a constituent part of the cause of action, the infliction of damage within the jurisdiction was an "act for which damages are claimed".

56. Reference was made to Wilson Electric Transformer Company Pty Ltd v Electricity Commission of NSW (1968) VR 330. In that case, a worker had been killed whilst employed by the plaintiff, a Victorian company. He was electrocuted in New South Wales at a power station operated by the defendant, a New South Wales statutory corporation. The plaintiff sued in the Supreme Court of Victoria for a contribution from the defendant towards the compensation paid by the plaintiff in respect of the death of the worker. The writ was endorsed under the SEP Act. The right to contribution relied on was created by s.62 of the Workers Compensation Act 1958 (Vic). Adam J rejected the proposition that the liability so created could be described as a "contract" within the meaning of s.11(1)(b) of the SEP Act. As to s.11(1)(d), his Honour held -

(333) "Under that paragraph the "act or thing...for which damages
are sought to be recovered" must be "done" or be "situate" in
Victoria. What is complained of in this action and that for which
damages in the shape of an indemnity against the compensation paid
are sought is the conduct of the defendant in the operation and
control of its power station in New South Wales - "acts" or
"things" there "done" or "situate". The contention that the act
for which damages are sought to be recovered was the payment of
compensation in Victoria - the subject matter of the indemnity - I
find quite unconvincing. For the foregoing reasons, it has not
been made to appear to me that this case comes within any of the
cases referred to in s.11(1) of the Service and Execution of
Process Act."

No issue arises in this case as to the categorisation of the right of action vested in the plaintiff. It is not contractual. Whilst s.11(1)(d) is not confined to tortious claims, it is plainly applicable to the present matter. (c.f. Ansett Transport Industries (Operations) Pty Limited v Alenia Aeritalia and Selenia S.p.A. (ACTSC; Miles C.J.; 27/11/91; unreported). The point, however, made by Miles C.J. in the latter case is of assistance in the present matter. The principle his Honour affirmed was that the matter of the construction of s.11(1) of the SEP Act is one of statutory interpretation. Referring to s.11(1)(d) his Honour said -

(7) "Although para.11(1)(d) of the Act has been described as "the
tort provision, authorising leave to be granted in respect of
actions involving torts committed within the forum" (Law Reform
Commission, Service and Execution of Process, Report ALR 40, para.
123) it is clear that as a matter of construction of the words
used in the statute, the ambit of the paragraph must go beyond
claims in tort, and extends to any claim for damages in which
there is an act of the type contemplated which has been done or is
still to be done within the territorial limits of the court of
issue of process. The reference to "an act...to be done" would
seem to include an omission where an omission gives rise to a
right to sue."

I would respectfully support that view of s.11(1)(d).

57. It follows that s.11(1)(d) does not confine itself to acts or omissions which are themselves complete causes of action. It suffices that the act or omission satisfies the statutory description.

58. Any act or omission which is a constituent element of the claim for damages, whether alone or in combination with other acts or omissions is sufficient.

59. It seems to me that if a person has no right to claim damages until some loss has been suffered then the act or omission comprising that suffering of loss or damage is one of the acts or things to which s.11(1)(d) refers. Insofar as Hall v ACT Electricity Authority (supra) suggests otherwise, I decline to follow it.

60. The happening of the death of the deceased in this Territory completed the chain of acts or omissions giving rise to the right to claim damages. The subsequent events quantifying the extent of the claim are not relevant. That is the distinction suggested by Hardie Boys J in Adastra Aviation Ltd v Airparts (NZ) Ltd (supra) and I respectully adopt it.

61. I do not regard Wilson Electric Transformer Company Pty Ltd v Electricity Commission of NSW (supra) as requiring a different conclusion. That was a case primarily of contract. Damage is not an ingredient of the cause of action. The place of breach is focussed upon by s.11(1)(b) SEP Act. Section 11(1)(d) was treated as only of peripheral relevance. The indemnity, even if not "contractual" (and some doubt exists about the correctness of the characterisation of the right of action) was activated not by payment which, was in Victoria, but rather by the liability to make payment which arose in New South Wales.

62. Buttigeig v Universal Terminal andStevedoring Corporation (1972) VR 626, another case referred to in Hall v ACT Electricity Authority (supra), was not a case which related to s.11(1)(d). The validity of service in that case relied on Rules of Court based on a ground that a "tort" was committed within the jurisdiction". That test is different. That was said to focus on the "act on the part of the defendant which gives the plaintiff his cause of complaint within the jurisdiction" (Distillers Co. (Bio-chemicals) Ltd v Thompson (1971) AC 458, 466 per Lord Pearson). In the latter case, whilst the negligent manufacture took place in the United Kingdom, a failure to warn the plaintiff had taken place in New South Wales where the product was marketed.

63. It has been held that a test in terms of "damage suffered wholly or partly in the state caused by a tortious act or omission however occurring" is satisfied if the death under the Compensation to Relatives Act 1897 (NSW) occurs in New South Wales wherever the consequential loss of support may happen (see Keevers v O'Neill (1977) 1 NSWLR 587; Baldry v Jackson (1977) 1 NSWLR 494). Nygh ("Conflict of Laws" 4th ed p 37) suggests that the "damage suffered" test merely reflects the Distillers view as opposed to that adopted by Master Sharpe in Hall v ACT Electricity Authority (supra).

64. In Nominal Defendant v Motor Vehicle Insurance Trust of Western Australia (1983) 50 ALR 511, the plaintiff sought to sue on a right created by a Western Australian Statute. It sued in New South Wales. The right to sue arose out of the fact that there had been personal injury caused by the use of a Western Australian motor vehicle in New South Wales upon which judgment was obtained in New South Wales. The defendant did not indemnify the plaintiff. Miles J held that the cause of action, although created by the Western Australian statute, arose within the State of New South Wales.

65. It may be concluded therefore that the cause of action herein arose at the moment of death of the deceased and not before. That death happened in this Territory. It follows that the cause of action arose here. That cause of action is based on two material facts. The first is injury resulting in death which, had death not happened, would have entitled the deceased to sue the defendant and recover damages. That event happened in New South Wales. Its wrongful character can only derive from the law of that State. The second material fact was the death itself. That happened in this Territory.

66. It is not the function of the SEP Act to define the jurisdiction of State and Territory Courts. It is intended to facilitate service of process and to be supplementary to other modes of extra-territorial service (see Flaherty v Girgis (supra)). There is no reason to suppose that s.11(1) was intended to lead to a result that only one State or Territory could issue enforceable process for or in respect of any one cause of action. It does limit the range of available States and Territories to those with which the pleaded cause of action has one or more of the prescribed connections (in the absence of a submitting appearance).

67. In this case it seems to me that, if an act or omission which is an element of the cause of action happened in the Territory, the terms of s.11(1)(d) are satisfied. It follows, of course, that a writ issued by a relevant New South Wales court would also have satisfied s.11(1)(d). The Courts of the other States and Territories could hear and determine the cause but the defendant would not be obliged by the terms of the SEP Act to submit to the jurisdiction of those Courts. Whether it could be obliged to do so by Rules of Court or legislation of such States or Territories I do not need to decide. Nor do I need to decide whether the Cross-vesting legislation or Rules made pursuant thereto would render the objection raised in these proceedings redundant.

68. It should be noted that the effectiveness of the writ to bring the defendant before this Court does not imply that this Court is the more appropriate venue. Neither does it decide the question of choice of law.

69. It follows that the writ in this matter has not only been validly served but obliges the defendant to appear unconditionally or suffer judgment in default of appearance unless there is a discretionary reason for restraining these proceedings on the ground that this Court is a forum non conveniens.
Venue -

70. It was submitted for the defendant that New South Wales is the more appropriate venue. This was based on an assumption that the law to be applied could vary depending on whether the action was brought in New South Wales or the Territory. However, Breavington v Godleman (supra) and Byrnes v Groote Eylandt Mining Co Pty Ltd (supra) make it quite clear that the law to be applied in determining this cause, whatever that is, will not alter with the place where the action was brought.

71. I have no doubt that, but for that consideration, the Territory would be the more appropriate forum from the point of view of geographic proximity of all those persons and the site of all events connected with the case. Whether tested by reference to the principles of forum non conveniens or pursuant to the cross-vesting legislation (see, for example, Voth v Manildra Flour Mills Pty Ltd (supra)) this Territory is clearly enough the preferable venue. There is no discretionary reason based on venue to stay proceedings in this jurisdiction.
Choice of Law -

72. In Koop v Bebb (supra), the High Court was able to point to the identity between the laws of Victoria and of New South Wales. The law of Victoria gave a remedy either by virtue of the Wrongs Act 1928 (Vic) and the rules of private international law or by virtue of the Compensation to Relatives Act 1897 (NSW) applied by the law of Victoria by virtue of the rules of private international law accepted by the common law of that State. The right and the remedy were the same in each State.

73. It really did not matter which of the two relevantly identical Acts applied.

74. However, in the present case the terms of the Workers' Compensation Act 1987 (NSW) create a real difference between the laws of that State and the laws of this Territory notwithstanding that each would grant a substantive remedy. There is the possible application of some of the provisions of that Act which limit the assessment of damages. That may disadvantage the plaintiff. There is also the effect of s.155 of the Act. That section requires insurance to be maintained by employers. It is to cover liability under the Act and -

"...an unlimited...amount in respect of the employer's liability
independently of this Act (being a liability under a law of New
South Wales) for any injury to any such worker."

Thus if the employer's liability in this case is to be characterised as "a liability under a law of New South Wales" it is likely that it will be indemnified by an insurer. However, if the liability is characterised as being under a law of this Territory it may well not be so indemnified.

75. There is, of course, no doubt that the wrongful character of the act or omission causing injury derives from the law of New South Wales. There is also no doubt that McTiernan J in Koop v Bebb (supra) was of the opinion that the legislation applying in the place of the wrongful act provided the source of the dependants' rights even if the death occurred elsewhere. The majority did not decide the issue.

76. I am persuaded that the view preferred by McTiernan J is right. The act of the defendant which potentially raises a cause of action in the defendants is the wrongful act neglect or default. The consequential event, namely the death, is adventitious as to its occurrence. It would be inconsistent, in my view, with the objective underlying Breavington v Godleman (supra) if a wrongful act could be given different consequences depending on where the person suffering the injury died. The law governing the wrongful act or omission should therefore be the same law as governs the consequences of that wrongful act or omission. It is the place of the wrong.

77. That conclusion also seems to me to be consistent with Voth v Manildra Flour Mills Pty Ltd (supra).

78. It should be noted that the right to claim damages arises only when and where the death happens, it does not follow that the law to be applied to the issue of liability for that death is that of the place where the right to claim damages arises.

79. It follows that, in my opinion, the liability of the defendant, if any be found, will arise by virtue of the Compensation to Relatives Act 1897 (NSW) not the Territory Act. That former Act enables a cause of action to arise in this Territory by virtue of the rules of private international law which form part of the laws of this Territory. It follows also that the provisions of the Workers' Compensation Act 1987, insofar as they substantively affect the measure of damages, will also be applicable.
Relief -

80. It follows that, insofar as the Notice of Motion seeks to strike out or stay the present action, it fails.

81. The Statement of Claim requires amendment to delete the reference to the Territory legislation. I give leave to the plaintiff to amend accordingly. I allow seven days to do so.

82. The defendant must appear, if it chooses to do so, unconditionally to avoid default proceedings thereafter. The present Defence need not have been filed. It is of no effect as a Defence. If, however, it is intended to file a Defence it will not be appropriate to plead the first three paragraphs of the present Defence. However, no directions as to the filing of or forum of the Defence are needed at this stage of the proceedings.

83. As I have ruled that the law of New South Wales is the applicable law, no formal declaration is necessary. Accordingly, I propose simply to order that the Notice of Motion be dismissed.

84. I will hear the parties as to costs.