John Pfeiffer Pty Ltd v Rogerson
High Court of Australia · 2000
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
The accident happened in one state and the case is being heard in another. Whose law decides what the plaintiff gets?
Pfeiffer expressly put international cases "entirely to one side" ([2]) and stated its rule for intranational torts ([102]). Zhang closed the gap two years later: the Court accepted the submission that Pfeiffer's conclusion "should be extended to foreign torts, despite the absence of the significant factor of federal considerations, and that this should be without the addition of any 'flexible exception'" ([75]). So the lex loci delicti now governs both, but the authority for a foreign tort is Zhang, not Pfeiffer -- and Pfeiffer's federal reasoning does not carry across.
DEFAMATION HAS ITS OWN STATUTORY CHOICE-OF-LAW RULE, and it is not this one. Section 11 of the uniform Defamation Acts supplies it; the South Australian instance is the one set out here. Section 11(1) is consistent with this case: matter published wholly within one Australian jurisdictional area is governed by "the substantive law that is applicable in that area".
IT IS SUB-SECTION (2)
THAT DEPARTS: on "a multiple publication of matter in more than one Australian jurisdictional area", the law to be applied is that "of the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection" -- one law for the whole publication, chosen by closest connection, rather than the law of each place of publication applied separately. Sub-section (3) lists what a court may take into account: where the plaintiff was ordinarily resident at the time of publication (or a corporation's principal place of business), "the extent of publication in each relevant Australian jurisdictional area", "the extent of harm sustained by the plaintiff in each relevant Australian jurisdictional area", and any other relevant matter.
WHY THE COMMON LAW YIELDS. Section 11(2) mandates the closest-connection rule itself; what makes it override the general common law rule is s 6(2): "[t]his Act does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication)". Section 11 provides otherwise, so to that extent the general law gives way. SUB-SECTION (4)
DOES SOMETHING NARROWER AND SEPARATE: "the substantive law applicable in an Australian jurisdictional area does not include any law prescribing rules for choice of law that differ from the rules prescribed by this section" -- it stops the law SELECTED under s 11 from bringing its own, different choice-of-law rule with it. That is an anti-renvoi provision about the content of the selected law, not the source of s 11's priority.
WORK-INJURY DAMAGES USE A STATUTORY CONNECTING FACTOR, and it is not simply the place of injury. Chapter 9 Part 9.2 of the Workers Compensation Act 1951 (ACT) supplies a choice-of-law rule for damages claims for work-related injury. Section 182D: "[t]he substantive law of the Territory or State of connection governs -- (a) whether or not a damages claim can be made in relation to a work-related injury to a worker; and (b) if a damages claim can be made -- the determination of the damages claim."
THE TEST IS A CASCADE, in s 36B (s 36A defines the term; s 36B supplies the test). A worker's employment is connected with "the Territory or State where the worker usually works in the employment" (s 36B(3)(a)); failing that, where the worker "is usually based for the purposes of the employment" ((3)(b)); failing that, where "the employer's principal place of business in Australia is located" ((3)(c)); with a separate rule for ships in (4).
ONLY IF NONE OF THOSE IDENTIFIES A PLACE does presence matter, and then conditionally: under s 36B(5) the employment is connected with the ACT if "(a) the worker is in the ACT when injured; and (b) the worker is not entitled to compensation in relation to the injury under the workers compensation law of an external Territory, or a place outside Australia". So the place of injury is not excluded from the inquiry -- it is last in it, and employment connection generally controls. Section 36B(6) lists what must be considered in deciding where a worker usually works, including work history over the previous 12 months and the intentions of worker and employer.
WHICH DEFENDANTS IT REACHES, and this is where one set of facts can attract two laws. Section 182E: "[t]his part applies only to a damages claim against 1 or more of the following people: (a) the employer; (b) a person who is vicariously liable for the acts of the employer; (c) a person for whose acts the employer is vicariously liable." So it is not confined to the employer: paragraphs (b) and (c) bring in others through vicarious liability in either direction. A defendant OUTSIDE those three categories is left to the common law place-of-wrong rule -- but whether a particular occupier or head contractor is outside them is a question about (b) and (c) on the facts, not something established by the label.
AND THE SUBSTANCE/PROCEDURE LINE IS DRAWN BY THE STATUTE TOO, in terms that will look familiar. Section 182B(1) defines substantive law to include, "whether or not it would otherwise be regarded as procedural in nature", a law prescribing the time within which an action must be brought, a law limiting the kinds of injury for which damages may be recovered, and a law limiting the amount recoverable. Compare Pfeiffer, which characterises laws bearing upon the existence, extent or enforceability of remedies as substantive. Section 182B(2) is this Act's anti-renvoi provision -- "substantive law does not include a law prescribing rules for choice of law" -- doing the job s 11(4) of the Defamation Act does for defamation. What gives Part 9.2 priority over the common law is its own terms: s 182D provides that the substantive law of the Territory or State of connection "governs" the questions it lists. What it establishes is that a work-injury damages claim needs the workers compensation statute's connecting factor worked through before the place-of-wrong rule is applied, and that the answer can differ between defendants in the one action.
OTHER JURISDICTIONS HAVE EQUIVALENT SCHEMES, and their terms are not set out here.
What happened?
The plaintiff was injured in New South Wales and sued in the Australian Capital Territory. All the relevant facts had occurred in New South Wales, whose legislation capped the damages available. The question was what effect the ACT courts should give to that legislation.
Under the then rule in McKain and Stevens v Head, a plaintiff had to show the wrong was actionable under the law of the forum as well as under the law of the place. The classification of limitation periods was untidy — some were treated as procedural, others as substantive, and legislation had intervened in places ([98], [100]) — and the quantification of damages was treated as procedural, so the forum's law fixed it. A plaintiff who could choose the forum could therefore influence the measure of damages.
The Court was explicit about the confines of the question: "the issue arises in a federal context, and not in an international context. We put issues that might arise in an international context entirely to one side" ([2]).
What did the Court decide?
The double actionability rule was discarded for intranational torts, and the law of the place of the wrong was made to govern every question of substance ([102]).
The Court then spelt out what that does to two disputed categories. "First, the application of any limitation period, whether barring the remedy or extinguishing the right, would be taken to be a question of substance not procedure ... Secondly, all questions about the kinds of damage, or amount of damages that may be recovered, would likewise be treated as substantive issues governed by the lex loci delicti" ([100]). The first resolves a classification that had been inconsistent; the second reverses the position under Stevens v Head.
The dividing principle is at [99]: "litigants who resort to a court to obtain relief must take the court as they find it", so the forum's adjectival law applies; but "matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance".
Proposition
What is the principle?
For an intranational tort — one committed in one Australian law area and sued on in another — "[t]he lex loci delicti should be applied by courts in Australia as the law governing all questions of substance", and the double actionability rule is discarded. "[L]aws that bear upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not as procedural laws", so limitation periods and the kinds and amounts of damages recoverable are governed by the law of the place of the wrong.
Why does this case matter?
Because of what it took away from plaintiffs' lawyers. Before Pfeiffer, choosing where to issue was a way of choosing what the claim was worth, and doing it well was a real skill. After it, the value of the claim travels with the accident and the choice of court decides much less.
Which is not to say the work got easier. Classification remains important, because it determines which issues follow the governing substantive law and which follow the forum's procedure — and identifying where the tort occurred is its own difficulty, one the Court expressly acknowledged ([81]–[83]). What changed is which of those questions is worth fighting, not how many there are.
Exam and application relevance
Identify where the wrong occurred before anything else, and say whether the case is intranational or international. Pfeiffer decided the first and expressly reserved the second; Zhang decided the second two years later, without a flexible exception. Cite the right one.
Then characterise each issue, using the Pfeiffer test: does the law bear on the existence, extent or enforceability of the rights and obligations, or does it govern the mode or conduct of the proceedings? Note the asymmetry the second limb creates. A plaintiff still takes the forum's court as they find it — its procedures, and the forms of relief its constituting statutes contemplate ([99]) — but a law that affects whether a remedy exists, how far it extends or whether it can be enforced is substantive and belongs to the place of the wrong. "The forum's remedies apply" is too blunt to be safe.
Then test yourself on the boundary. A forum statute caps general damages for personal injury; a forum rule requires expert reports to be exchanged 28 days before hearing; a forum statute bars proceedings brought more than three years after the injury. One of those three is the forum's to apply. Say which, and say what makes the other two different.
Check your understanding
Why does the substance–procedure distinction carry more weight after this case than it did before?