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Mutton, Alison --- "Choice of Law on the High Seas: Blunden v Commonwealth" [2004] SydLawRw 18; (2004) 26(3) Sydney Law Review 427

* BA, final year student, Faculty of Law, University of Sydney. The author would like to thank Ross Anderson for his valuable time and insights. The views expressed in this article are those of the author.

[1] [2000] HCA 36; (2000) 203 CLR 503; 172 ALR 625 (hereinafter Pfeiffer).

[2] [2002] HCA 10; (2002) 210 CLR 491; 187 ALR 1 (hereinafter Zhang).

[3] Consistent with practice within the courts and academic commentary, the terms lex loci delicti (or law applying at the place of the commission of the tort) and lex fori (or law of the forum) are used.

[4] (2004) 203 ALR 189 (hereinafter Blunden).

[5] The term ‘high seas’ has been defined as ‘beyond the geographical territory of Australia and

beyond any internal waters or any waters which Australian law treats as territorial waters’: see Blunden, above n4 at [56] (Kirby J). See also Convention on the High Seas done at Geneva on 29 April 1958, 1963 Australia Treaty Series 12 (entered into force for Australia on 13 June 1963).

[6] Blunden, above n4 at [58] (Kirby J). See also id at [20] (Gleeson CJ, Gummow, Hayne & Heydon JJ).

[7] Zhang, above n2 at [76] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ). Unfortunately the judgment does not give any indication as to what these ‘special considerations’ may be. Some possible considerations are explored in Lawrence Collins (ed), Dicey & Morris on the Conflict of Laws (13th ed, 2000) at 1537–1543.

[8] [2002] NSWCA 124; (2002) 54 NSWLR 690 (hereinafter Morgan).

[9] Id at [104]–[106] (Heydon JA; Hodgson & Santow JJA agreeing).

[10] Id at [105] (Heydon JA; Hodgson & Santow JJA agreeing).

[11] This was assumed in the case of Roerig v Valiant Trawlers Ltd [2002] 1 WLR 2304. Dictum to this effect can be found in Morgan, above n8 at [17] (Heydon JA). See also CF Finlayson, ‘Shipboard Torts and the Conflict of Laws’ (1986) 16 VUWLR 119 at 140; Collins, above n7 at 1537. In a federal system such as exists in Australia, the law of the place of registration will apply: Finlayson, above at 140.

[12] See William Tetley ‘Choice of Law – Tort and Delict – Common Law/Civil Law/ Maritime Law – Maritime Torts’ (1993) 1(1) Tort LR 42.

[13] See Blunden v Commonwealth of Australia [2003] HCATrans 262 (7 August 2003) at <http:// www.austlii.edu.au/au/other/HCATrans/2003/262.html> (27 July 2004).

[14] Hereinafter the Judiciary Act.

[15] The facts are primarily obtained from Blunden, above n4 at [1]–[5] (Gleeson CJ et al), [78]–[79] (Kirby J).

[16] See id at [26] (Gleeson CJ et al), [78] (Kirby J).

[17] Chronic post-traumatic stress disorder; major depressive disorder; alcohol abuse; and shock and sequelae.

[18] Blunden, above n4 at [3] (Gleeson CJ et al).

[19] The case stated also nominated the potential applicability of the statutory limitation period prescribed by s3 of Imperial Act 21 James 1, Chapter 16 (as it applied in the Australian Capital Territory or New South Wales). However, the Imperial Act was ‘not supported by any viable argument’: Blunden, above n4 at [69] (Kirby J), and accordingly was not dealt with in the course of judgment.

[20] Blunden, above n4 at [623] (Kirby J). See also Blunden, above n4 at [61] (Kirby J): ‘the common law did not develop a general principle to oblige the commencement of proceedings within a given time’.

[21] Id at [9] (Gleeson CJ et al), [107] (Callinan J).

[22] Id at [9] (Gleeson CJ et al), [89] (Kirby J).

[23] Id at [12] (Gleeson CJ et al), [86] (Kirby J). See also Pfeiffer, above n1 at [25] to [28] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).

[24] Blunden, above n4 at [89]–[91] (Kirby J).

[25] (1997) 191 CLR 471 at 525–7; 146 ALR 299 at 328–9 (Gaudron J).

[26] Blunden, above n4 at [9] (Gleeson et al), note 97 (Kirby J).

[27] Id at [90]–[91], note 97 (Kirby J).

[28] Id at [43] (Gleeson CJ et al), [91] (Kirby J).

[29] Id at [28] (Gleeson CJ et al).

[30] Id at [30] (Gleeson CJ et al). See also the transcripts of the High Court proceedings where counsel for the plaintiff encouraged the view that lex loci delicti referred not specifically to a geographical place but rather to a ‘law area’; here, it was submitted, the Court must deal with the lex loci delicti as a ‘Commonwealth law area’: Blunden v Commonwealth of Australia [2003] HCATrans 262 (7 August 2003) at <http://www.austlii.edu.au/au/other/HCATrans/ 2003/262.html> (27 July 2004).

[31] Blunden, above n4 at [30]–[32] (Gleeson CJ et al).

[32] [1938] UKPC 75; [1939] AC 160 at 174. See also DP O’Connell, The International Law of the Sea (1984) at 735– 7; Martin Davies & Anthony Dickey, Shipping Law (2nd ed, 1995) at 60.

[33] Hereinafter the Navigation Act.

[34] Blunden, above n4 at [34] (Gleeson CJ et al), [108] (Callinan J).

[35] [1922] HCA 62; (1922) 31 CLR 421 at 431 (Knox CJ & Gavan Duffy J).

[36] Blunden, above n4 at [28]–[29] (Gleeson CJ et al), [91] (Kirby J).

[37] Id at [35] (Gleeson CJ et al), 108 (Callinan J).

[38] Hereinafter the Limitation Act.

[39] Id at [35], [38]–[39], [45] (Gleeson CJ et al), [91] (Kirby J), [109] (Callinan J).

[40] Id at [97] (Kirby J).

[41] Id at [36] (Gleeson CJ et al). Note that Kirby J in characterising the Commonwealth’s submission did not limit the suggested rule to events which gave rise to the Commonwealth liability but rather to any ‘cause of action arising on the high seas’: id at [67].

[42] Id at [68], [80] (Kirby J).

[43] Applying Commonwealth v Mewett (1997) 191 CLR 471 at 527 (Gaudron J).

[44] Blunden, above n4 at [36] (Gleeson CJ et al), [69], [80], [83] (Kirby J).

[45] Id at [37] (Gleeson CJ et al).

[46] Id at [40]–[42] (Gleeson CJ et al).

[47] Judiciary Act 1903 (Cth) s 64.

[48] Blunden, above n4 at [43] (Gleeson CJ et al). See also [99] (Kirby J).

[49] Id at [100], [101] (Kirby J).

[50] The joint judgment also specifically notes that ‘[the Limitation Act 1985] speaks to actions such as the present instituted in the courts of the territory’: id at [38] (Gleeson CJ et al).

[51] Id at [92] (Kirby J).

[52] Id at [94] (Kirby J). See also [19] (Gleeson CJ et al).

[53] Id at [94] (Kirby J). See also [46] (Gleeson CJ et al).

[54] Id at [5] (Kirby J).

[55] Id at [6]–[8] (Gleeson CJ et al), [95] (Kirby J).

[56] Id at [98] (Kirby J).

[57] Id at [35] (Gleeson CJ et al), [91] (Kirby J), [109] (Callinan J).

[58] Id at [84] (Kirby J).

[59] As said by Kirby J himself: id at [100].

[60] Id at [106] (Callinan J). See also id at [25] (Gleeson CJ et al), [99] (Kirby J).

[61] See above n41 and accompanying text.

[62] Blunden v Commonwealth of Australia [2003] HCATrans 261 (6–7 August 2003) at <http:// www.austlii.edu.au/au/other/HCATrans/2003/261.html> (27 July 2004).

[63] Blunden, above n4 at [43] (Gleeson CJ et al).

[64] Id at [41] (Gleeson CJ et al).

[65] Ibid, citing Pfeiffer, above n1 at [79] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).

[66] Ibid, citing Pfeiffer, above n1 at [78] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).

[67] As emphasised by the joint judgment: id at [42] (Gleeson CJ et al).

[68] Examples given by the Solicitor–General of the Commonwealth and dismissed by the joint judgment as ‘fanciful’ (id at [42]) include unregistered pleasure craft off the coast, unregistered pirate ships, two swimmers in the middle of the ocean, new volcanic islands, a reef in the middle of the ocean, places where no particular foreign government is recognised as being in defacto control, a war zone where law and order has so totally broken down that there is no regime recognised by Australia as being a regime in power there: Blunden v Commonwealth of Australia [2003] HCATrans 262 (7 August 2003) at <http://www.austlii.edu.au/au/other/ HCATrans/2003/262.html> (27 July 2004).

[69] Pfeiffer, above n1 at [58] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).

[70] See Jeremy Kirk, ‘Conflicts and Choice of Law Within the Australian Constitutional Context’ (2003) 31 Fed LR 247 at 259.

[71] Pfeiffer, above n1 at [59] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).

[72] Id at [60] Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).

[73] Id at [44] (Gleeson CJ et al).

[74] This is the primary appeal of the lex loci delicti rule according to Tetley: above n12 at 43. See also Pfeiffer, above n1 at [87] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ), [129] (Kirby J); Zhang, above n2 at [130] (Kirby J).

[75] See Part 6A below.

[76] Blunden, above n4 at [100] (Kirby J).

[77] Pfeiffer, above n1 at [200] (Callinan J); Kirk, above n70 at 258.

[78] Judiciary Act 1903 (Cth) s 56(1)(c): the claim may be brought ‘in the Supreme Court of any State or Territory or in any other court of competent jurisdiction of any State or Territory’.

[79] See further, ‘Court Win for Melbourne’s Crew’ The Age (11 December 2003), available at <http://www.theage.com.au/articles/2003/12/10/1070732282494.html> (27 July 2004).

[80] Blunden, above n4 at [42] (Gleeson CJ et al), [84] (Kirby J), [108] (Callinan J).

[81] Compare Friedrich K Juenger, ‘What’s Wrong with Forum Shopping?’ [1994] SydLawRw 1; (1994) 16 Syd LR 5 and Brian R Opeskin, ‘The Price of Forum Shopping: A Reply to Professor Juenger’ (1994) 16 Syd

LR 14. See also Andrew Bell, Forum Shopping and Venue in Transnational Litigation (2003).

[82] Pfeiffer, above n1 at [129] (Kirby J), [184] (Callinan J); Zhang, above n2 at [194] (Callinan J).

[83] Australian Law Reform Commission, Choice of Law, Report No 58 (1992) at 1.16.

[84] Blunden, above n4 at [44] (Gleeson CJ et al), [63]–[66], [99] (Kirby J), [108] (Callinan J).

[85] Id at [42] (Gleeson CJ et al).

[86] Id at [70], [76] (Kirby J).

[87] See for instance Convention on the High Seas, above n5; United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982, 1994 Australian Treaty Series 31 (entered into force for Australia on 16 November 1994).

[88] Blunden, above n4 at [76] (Kirby J). As to the requirement of a ‘substantial and bona fide connection’, see id at [72] (Kirby J); Zhang, above n2 at [105]; Ian Brownlie, Principles of Public International Law (6th ed, 2003) at 309.

[89] See above n5. See also Convention on the Law of the Sea, above n87 at Art 97 para 1.

[90] See also Blunden, above n4 at [74] (Kirby J).