HIGH COURT OF AUSTRALIA
GLEESON CJ,
GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJHELEN MARGARET SWEEDMAN APPELLANT
AND
TRANSPORT ACCIDENT COMMISSION RESPONDENT
Sweedman v Transport Accident Commission [2006] HCA 8
9 March 2006
M28/2005ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of Victoria
Representation:
B W Walker SC with J K Kirk for the appellant (instructed by Henry Davis York)
D F Jackson QC with P H Solomon for the respondent (instructed by Transport Accident Commission)
Interveners:
D M J Bennett QC, Solicitor-General of the Commonwealth with G A Hill intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
M G Sexton SC, Solicitor-General for the State of New South Wales with M J Leeming intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales)
C J Kourakis QC, Solicitor-General for the State of South Australia with M J Wait intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor's Office (SA))
C J Kourakis QC, Solicitor-General for the State of South Australia with M J Wait intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)
P M Tate SC, Solicitor-General for the State of Victoria with M K Moshinsky intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Sweedman v Transport Accident Commission
Private international law – Motor accident – Applicable law – Accident occurred in New South Wales between a car registered in Victoria and driven by a Victorian resident and a car registered in New South Wales and driven by a New South Wales resident – Accident assumed to have been caused by negligence of New South Wales driver – Victorian driver and passenger obtained compensation payments from the Transport Accident Commission pursuant to Transport Accident Act 1986 (Vic) – The Commission sued the New South Wales driver in the County Court of Victoria, exercising federal jurisdiction, for indemnity pursuant to Transport Accident Act, s 104 – Alternative avenue of redress was available to the Victorian residents under the Motor Accidents Act 1988 (NSW) – Whether the regime established by the Motor Accidents Act supplanted that of the Transport Accident Act – Whether identification of the law of Victoria as the applicable law by virtue of common law choice of law rules and the operation of Judiciary Act 1903 (Cth), s 80 would be inconsistent with the operation of the Constitution.
Private international law – Choice of law – Applicable choice of law rule – Action brought on a statutory obligation of the appellant to indemnify the respondent – Statute provided no particular method of enforcing the obligation – Where appropriate action for enforcing the right of indemnity is an action in the nature of a quantum meruit – Where action brought in federal jurisdiction – Whether applicable law is the law of the State with which the obligation of the appellant to indemnify the Commission has the closest connection.
Statutes – Construction – Motor accident – Where statutes of different States said to be capable of being invoked in relation to the same circumstances – Transport Accident Act invoked in proceedings in County Court of Victoria for an indemnity claim – Whether the provisions of the Motor Accidents Act spoke to, or in opposition to, those proceedings.
Constitutional law – Inconsistency between laws of States – Where statutes of different States said to be capable of being invoked in relation to the same circumstances – Transport Accident Act invoked in proceedings in County Court of Victoria for an indemnity claim – New South Wales funds depleted in Victorian proceedings – Whether any inconsistency or clash between Victorian and New South Wales statutes – Whether State of New South Wales had the greater governmental interest in providing for the compelled financial consequences of a motor vehicle accident occurring in New South Wales – Whether any such inconsistency denied the operation of the Judiciary Act, s 80.
Constitutional law (Cth) – Discrimination between residents – Resident of New South Wales subject to claim to indemnity under Victorian statute – Transport Accident Act, s 104(1) provided that that provision did not apply to a person entitled to be indemnified by the Commission under s 94 of that Act – Section 94 obliged the Commission to indemnify persons who have paid the transport accident charge levied upon owners of registered motor vehicles under Transport Accident Act, s 109(1) for the relevant period – New South Wales driver would not have been subject to claim to indemnity had she been resident in Victoria – Where New South Wales driver bound to hold third-party insurance pursuant to Motor Accidents Act, ss 8 and 11 – Whether Transport Accident Act, s 104(1) subjected New South Wales driver to any disability or discrimination which would not be equally applicable to her if she were resident in Victoria.
Words and phrases – "inconsistency".
Constitution, ss 75(iv), 92, 109, 117.
Judiciary Act 1903 (Cth), ss 30, 39, 80.
Motor Accidents Act 1988 (NSW), ss 2, 8, 11, 40-82A.
Transport Accident Act 1986 (Vic), ss 1, 8, 27, 35, 94, 104, 109.
GLEESON CJ, GUMMOW, KIRBY AND HAYNE JJ. The event giving rise to this litigation was an accident between two motor vehicles on 20 July 1996. The accident occurred on a public road in the State of New South Wales. One car was registered in the State of Victoria and was driven by a Victorian resident, Mr Sutton, with Mrs Sutton as passenger. The other car was driven by the appellant, Mrs Sweedman, a New South Wales resident. This car was registered in New South Wales and owned by Mrs Sweedman's son. Mr and Mrs Sutton were injured and, for the purposes only of the present litigation, it is assumed that this accident was caused by the negligent driving of Mrs Sweedman.
The mobility of the Australian population is assisted by motor vehicles and their passage between the States is protected by the Constitution itself. It is to be expected that when State legislatures deal with the legal and social consequences of motor accidents they do not restrict their attention to the use of cars within particular State territorial limits.
At the date of the accident both New South Wales and Victoria had legislative regimes which bore upon the legal responsibility of Mrs Sweedman to Mr and Mrs Sutton. The legislative regimes of New South Wales and Victoria differed in significant respects. They implemented distinct governmental policies concerning the legal consequences of motor vehicle accidents. This litigation is occasioned by the interaction and alleged disharmony between the legislation of Victoria and New South Wales. The Attorneys-General for both States intervened in this Court, together with their Commonwealth, South Australian and Western Australian counterparts. The Attorney-General for New South Wales supported the decision below and opposed the submissions of the appellant.
The legislation of the two States
The Motor Accidents Act 1988 (NSW) ("the NSW Act") repealed (by s 5) the Transport Accidents Compensation Act 1987 (NSW) and thereby abolished the scheme it had established for the compensation of the victims of transport accidents; the common law was reinstated (by s 6) in respect of transport accidents occurring on or after 1 July 1987. However, Pt 5 (ss 40-67) and Pt 6 (ss 68-82A) placed various restrictions and limitations upon the pursuit of the common law rights of Mr and Mrs Sutton against Mrs Sweedman and the measure of damages recoverable. This reflected one of the stated objects of the statute, the reduction of the cost of the former common law based scheme (s 2A(1)(c)(i)).
The NSW Act had more than one focus and was not concerned purely with personal injury litigation. In particular, it provided in Pt 3 (ss 8-34) for a system of compulsory third-party insurance. Section 8 made it an offence to use or cause or permit another person to use on a public street a motor vehicle to which a third-party policy complying with s 9 was not in force. Section 11 forbad the registration of a motor vehicle unless the registration authority was satisfied that there existed a third-party policy in relation to that vehicle. The car driven by Mrs Sweedman was registered in New South Wales and it may be inferred that there was compliance with the third-party insurance requirements of ss 8 and 11 of the NSW Act.
Mr and Mrs Sutton did not sue Mrs Sweedman in tort pursuant to the NSW Act. They took the other avenue under the law of Victoria.
The Transport Accident Act 1986 (Vic) ("the Victorian Act") established a scheme of compensation in respect of those injured or killed as a result of transport accidents (s 1). One of the stated objects of the statute was "[t]o reduce the cost to the Victorian community of compensation for transport accidents" (s 8(a)). Section 35 conferred an entitlement to compensation under the Victorian Act on a person injured as a result of a transport accident which occurred in Victoria or, in certain circumstances, elsewhere in Australia. In particular, the accident in New South Wales in which Mr and Mrs Sutton were involved qualified under s 35(1)(b) because the car was a registered motor vehicle under the Road Safety Act 1986 (Vic) and they were residents of Victoria and respectively the driver and passenger.
Section 27 of the Victorian Act required the respondent, the Transport Accident Commission ("the Commission"), to establish and maintain the Transport Accident Fund ("the Fund"). Owners of a registered motor vehicle such as that driven by Mr Sutton were obliged by s 109 to pay a transport accident charge to be credited by the Commission to the Fund (s 27(2)). Payments of compensation were to be made out of the Fund (s 27(3)). The Commission made payments of compensation to Mr and Mrs Sutton which it contended totalled $35,310.29 on 9 April 2002, the date of the institution of the action giving rise to this appeal.
The litigation between the Commission and Mrs Sweedman
The subject of the litigation is not the rights of Mr and Mrs Sutton to compensation payments by the Commission, nor their rights in tort against Mrs Sweedman.
By statement of claim filed in the County Court of Victoria at Melbourne on 9 April 2002, the Commission sued Mrs Sweedman for indemnity for that proportion of the amount of its liability to make payments under the Victorian Act in respect of the injuries to Mr and Mrs Sutton which was appropriate to the degree to which the injuries were attributable to the negligence of Mrs Sweedman.
Counsel for the Commission stressed that the ambit of the insurance provided to Mrs Sweedman by the compulsory third-party insurance under the NSW Act was not confined to her liability in tort to Mr and Mrs Sutton; it extended to "liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle"[1]. The phrase "liability in respect of" is sufficiently broad to provide Mrs Sweedman with recourse to the third-party insurer for the indemnity sought by the Commission. The essence of the submission for Mrs Sweedman is that the occasion for such recourse cannot arise. This is said to be because the source of the claim by the Commission to indemnity is in the Victorian Act and, in the circumstances, that legislation is inoperative or inapplicable for constitutional reasons.
[1]NSW Act, s 9; Sched 1, Item 1.
As already remarked, Mrs Sweedman is a resident of New South Wales. The Commission is established by Pt 2 (ss 10-33) of the Victorian Act with characteristics which bring it within the constitutional description of the State of Victoria for the purposes of s 75(iv) of the Constitution[2]. That has not been disputed. It also is accepted that, by operation of ss 75(iv) and 77(iii) of the Constitution and s 39(2) of the Judiciary Act 1903 (Cth) ("the Judiciary Act"), the County Court was invested with federal jurisdiction in a matter between the State of Victoria and a resident of the State of New South Wales. (It is unnecessary to enter upon the question whether there was a matter relating to the same subject-matter claimed under the laws of different States, within the meaning of s 76(iv) of the Constitution.)
[2]See Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219 at 232-233.
The claim for indemnity made by the Commission was expressed by reference to s 104(1) of the Victorian Act. This confers upon the Commission in certain circumstances an entitlement to indemnity where the Commission has made compensation payments under the Victorian Act. Section 104(2) imposes what in argument was identified as a "cap"; the liability of Mrs Sweedman under s 104(2) is not to exceed the amount of damages which, but for the Victorian Act, she would be liable to pay Mr and Mrs Sutton in respect of their injuries. There are various issues of construction of s 104 which were not pressed by the parties as decisive of this case, and upon which it is unnecessary for this Court to enter. However, as noted above, Mrs Sweedman did contend that s 104(1) does not apply to her situation.
On 18 July 2003 the County Court (Judge Duggan) reserved questions for the Court of Appeal in the form of a special case. The Court of Appeal (Winneke P, Callaway and Nettle JJA) amended the applicable form of the text of s 104(1) as stated in the questions reserved. The Court of Appeal went on to give answers which favoured the Commission[3]. It is against that order that the appeal is brought by special leave.
[3]Transport Accident Commission v Sweedman (2004) 10 VR 31.
Section 104(1) reads:
"If an injury arising out of a transport accident in respect of which the Commission has made payments under this Act arose under circumstances which, regardless of section 93, would have created a legal liability in a person (other than a person who is entitled to be indemnified under section 94) to pay damages in respect of pecuniary loss suffered by reason of the injury, the Commission is entitled to be indemnified by the first-mentioned person for such proportion of the amount of the liability of the Commission to make payments under this Act in respect of the injury as is appropriate to the degree to which the injury was attributable to the act, default or negligence of the first-mentioned person."
Section 93 denies recovery by an action for damages but makes special provision for some recovery in cases of "serious injury" and in wrongful death actions. Section 94 imposes in some circumstances a liability upon the Commission itself to provide indemnity. It will be necessary later in these reasons to make further reference to s 94.
For the reasons that follow the appeal should be dismissed.
The scope of the two laws
It is convenient first to give further consideration to the scope of the two statutes, the NSW Act and the Victorian Act. The accident in which Mr and Mrs Sutton were injured took place in New South Wales but they received compensation payments from the Commission set up by the Victorian Act. In turn, the Commission (the respondent) in the County Court action in Victoria asserts against a New South Wales resident, Mrs Sweedman (the appellant), its entitlement under s 104(1) of the Victorian Act to indemnity.
There is nothing necessarily antithetical to the system of federation established and maintained under the Constitution in the legislation of one State having legal consequences for persons or conduct in another State[4]. There are three relevant corollaries to that general proposition. First, it is sufficient for the validity of a law such as s 104(1) that it has any real connection between its subject-matter and the State of Victoria[5]. Plainly, s 104(1) meets that criterion. The appellant does not assert lack of State power to legislate with extra-territorial operation.
[4]Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at 26 [16], 58 [122]; APLA Ltd v Legal Services Commissioner (NSW) (2005) 79 ALJR 1620 at 1653 [158]; 219 ALR 403 at 445.
[5]Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at 22-23 [9], 34 [48], 58-59 [122]-[123].
Secondly, as to adjudication of the legal consequences referred to above, the choice of law rules have the important function, in the absence of an effective statutory overriding requirement, of selecting the law to be applied to determine the consequences of acts or omissions which occurred in a State (or Territory) other than that where action is brought[6]. This means that questions of alleged "inconsistency" between laws of several States must be considered not at large, but first with allowance for the operation of applicable choice of law rules. This may remove the necessity in a given case to answer those questions of inconsistency. However, as will appear, the appellant enlists what are said to be constitutional imperatives which dictate an outcome in the litigation at odds with the operation of choice of law rules, rather than consistent with those rules.
[6]Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at 36 [57].
Thirdly, reference is appropriate to the point clearly made in the joint reasons in John Pfeiffer Pty Ltd v Rogerson[7] that, subject to what followed in that passage:
"because there is a single common law of Australia[8], there will be no difference in the parties' rights or obligations on that account, no matter where in Australia those rights or obligations are litigated".
Their Honours went on to refer to statutory modifications to the common law and to other considerations, including those applying in federal jurisdiction, which may dictate different outcomes according to the seat of the litigation. Further, it is well settled that (putting to one side consideration of specific provisions such as ss 51(ii), 51(iii), 92, 99 and 117) there is no general requirement in the Constitution that a federal law such as s 80 of the Judiciary Act have a uniform operation throughout the Commonwealth[9]. In addition, s 118 of the Constitution does not require certainty and uniformity of legal outcomes in federal jurisdiction or otherwise[10].
[7](2000) 203 CLR 503 at 518 [15].
[8]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 15; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 556; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562‑563, 566; Lipohar v The Queen (1999) 200 CLR 485 at 505, 509, 551-552.
[9]Leeth v The Commonwealth (1992) 174 CLR 455 at 467; Kruger v The Commonwealth (1997) 190 CLR 1 at 63, 153‑154; R v Gee (2003) 212 CLR 230 at 255 [64].
[10]John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 532‑534 [59]-[65], 555‑558 [137]-[143].
New South Wales and Victoria submitted that in any event no question of differential outcome could arise here because, if the Commission had sued in a New South Wales court, the Judiciary Act would have mandated the same outcome as in the County Court. That submission may be accepted as correct. It appears that the limitation period under the Limitation of Actions Act 1958 (Vic)[11] would be the general period of six years. On the other hand, the NSW Act (s 52) imposes a limitation period of three years and the Commission sued more than five years after the accident. But counsel for the Commission correctly emphasised that in its terms s 52 addresses "legal proceedings for damages under [the NSW Act]" and the claim by the Commission for indemnity did not answer that description. Hence the postulated identity of outcome.
[11]Section 5(1)(d).
What has been said so far as to it being not uncommon for one State to legislate with consequences for persons or conduct in another State must be read with a caveat. This is that in a federal system one does not expect to find one government legislating for another[12]. But that is not an absolute proposition, as the outcome in State Authorities Superannuation Board v Commissioner of State Taxation (WA)[13] indicates. No party or intervener questioned the correctness of this decision. There, a body identified with the State of New South Wales was validly assessed to stamp duty on its agreement to acquire a real estate interest in Perth.
[12]cf In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 529.
[13](1996) 189 CLR 253.
Section 4 of the NSW Act states:
"This Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities."
If the NSW Act had gone on to stipulate that no claim to indemnity or exoneration might be brought in any court by any party against a tortfeasor in respect of a motor accident occurring in New South Wales, other than as permitted by the NSW Act, and if s 4 be read in terms as applicable to the Commission, there may have been questions both as to constitutional power[14] and inconsistency. But that situation has not arisen.
[14]See BHP Billiton Ltd v Schultz (2004) 79 ALJR 348 at 364-365 [89]-[94], 374-375 [142]-[144], 380 [178]-[179], 382-383 [191]-[201]; 211 ALR 523 at 544-545, 557-559, 566, 568‑570.
Moreover, an examination of the NSW Act discloses that it is not directed to blocking or restricting claims, whether made in New South Wales or elsewhere, to enforce liabilities of the nature of that created by s 104(1) of the Victorian Act. Indeed, as earlier mentioned, the compulsory third-party policy would cover the appellant for the claim by the Commission to indemnity under s 104(1). Nor is the NSW Act (or the Victorian Act) concerned to displace the operation in respect of such claims of the choice of law rules[15]. These are critical considerations for what follows in these reasons.
[15]cf Akai Pty Ltd v People's Insurance Co Ltd (1996) 188 CLR 418.
Choice of law
Against this background, two essential steps are to be taken for the resolution of the appeal. The first step concerns the character in law of the claim made for indemnity under s 104(1) and the identification of the choice of law rule applicable to that claim. In Pfeiffer[16] it was explained, with reference to Koop v Bebb[17], that the term "tort" used for the purposes of choice of law rules may encompass civil actions for acts or omissions made wrongful by statute. The same reasoning applies to quasi-contractual or restitutionary claims arising from statute.
[16](2000) 203 CLR 503 at 519-520 [21]; see also at 548 [116].
[17](1951) 84 CLR 629.
The second step concerns the operation upon the indemnity claim of the federal jurisdiction which, given the character and identity of the parties, has been engaged with respect to that controversy. When these steps have been taken some of the substratum upon which the appellant's submissions rest will cease to be of dispositive significance for the present case.
First, as to the choice of law rule, the following is to be said. It was accepted on both sides and by the interveners that, consistently with Victorian WorkCover Authority v Esso Australia Ltd[18], the obligation of the appellant to indemnify was distinct from any underlying claim in tort[19]. The choice of law rule in tort had no direct role to play. But what was the applicable choice of law rule?
[18](2001) 207 CLR 520.
[19]cf Dicey and Morris, The Conflict of Laws, 13th ed (2000), vol 2, §35‑042.
Section 104(1) of the Victorian Act states that the Commission "is entitled to be indemnified" but leaves it to the general law to spell out the character and incidents of that entitlement. Section 138 of the Accident Compensation Act 1985 (Vic) conferred in similar terms an entitlement to indemnity upon the Victorian WorkCover Authority. This provision was considered in Esso[20]. The older authorities referred to in that case indicate that, where the amount of the statutory entitlement was liquidated, the action of debt was appropriate notwithstanding that the statute gave no particular method of enforcing the obligation[21].
[20](2001) 207 CLR 520 at 526-530 [12]-[20], 555‑559 [96]-[105].
[21](2001) 207 CLR 520 at 528 [15]; cf at 558 [105].
The requirement to fix the appropriate degree of attribution to the negligence of the tortfeasor before quantification of the amount recoverable by the Commission on the indemnity, suggests a characterisation more akin to indebitatus assumpsit than to the old action of debt[22]. In that vein, in the present case, Nettle JA described the right of indemnity as "enforceable as a quasi-contractual cause of action in the nature of a quantum meruit"[23]. That view of the matter was consistent with the view of Bray CJ on analogous provisions in other legislation[24]. On that classification, and as explained by Bray CJ in the authorities just cited, for the purposes of the choice of law rules, the law applicable to the action, the lex causae, will be the law of the State with which the obligation of the appellant to indemnify the Commission has the closest connection.
[22]cf Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at 250-251; Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520 at 532-535 [26]-[32], 555‑559 [96]-[105].
[23](2004) 10 VR 31 at 41.
[24] Nominal Defendant v Bagot's Executor and Trustee Company Ltd [1971] SASR 346 at 365-366; Hodge v Club Motor Insurance Agency Pty Ltd (1974) 7 SASR 86 at 91. Bray CJ's dissenting judgment in the first of these cases was upheld by this Court: (1971) 125 CLR 179 at 183.
There was, however, a dispute as to the selection of New South Wales or Victoria as the place of closest connection. The appellant stressed that the accident occurred in New South Wales and that the appellant resided there. However, the better view favours Victoria. The obligation to indemnify is sourced in s 104(1) of the Victorian Act, the moneys recovered will go to augment the Fund (s 27(2)(a), (g)), and the obligation only arose after payments required by the Victorian Act had been made out of the Fund (s 27(3)(a)) to Mr and Mrs Sutton, Victorian residents.
There is no authority in this Court settling the selection of the governing choice of law rule in a case such as the present. Victoria proposed an answer which fixed upon the characterisation of the compensation payments to Mr and Mrs Sutton as made by the Commission from the Fund under compulsion of Victorian law and upon the liability of Mrs Sweedman to the Commission as restitutionary in nature[25]. Victoria submitted that the outcome of a search for the "closest connection", posited by Bray CJ, may be difficult to predict with certainty. Rather, the governing law was that which was the source of the legal compulsion to make the compensation payments[26].
[25]Goff and Jones, The Law of Restitution, 6th ed (2002) at 20-22 [1‑019]-[1‑020]; Jackman, The Varieties of Restitution, (1998) at 97‑100; Grantham and Rickett, Enrichment and Restitution in New Zealand, (2000) at 207-210.
[26]Adopting the position taken in Panagopoulos, Restitution in Private International Law, (2000) at 175; cf Gutteridge and Lipstein, "Conflicts of Law in Matters of Unjustifiable Enrichment", (1939) 7 Cambridge Law Journal 80 at 92‑93, favouring "the law of the place in which the payment of money or the vesting of property occurs which constitutes the enrichment".
However, it is unnecessary to determine here which of the above classifications is correct as the first step in identifying the applicable choice of law rule. This is because, as noted above, the identification of the law of Victoria as the source of the compulsion upon the Commission to make the payments to the injured parties (two Victorian residents), and thus of a restitutionary obligation, is a significant pointer to the selection of the law of Victoria as the law with the closest connection to the indemnity entitlement of the Fund against the tortfeasor. Whichever competing thesis be adopted, the road so chosen leads to the law of Victoria rather than to that of New South Wales.
Federal jurisdiction
However, the County Court was exercising federal jurisdiction. This is national in nature. In those circumstances, there was presented no direct choice between laws of competing States. Rather, federal law controlled and required the ascertainment under the Judiciary Act of the applicable law[27]. Section 80 of the Judiciary Act was engaged[28]. Federal jurisdiction was to be exercised by the County Court in respect of a matter, being the controversy as to the enforcement of an obligation the governing law of which under the common law choice of law rules was that of Victoria. The County Court was exercising jurisdiction in Victoria. No Victorian statute was identified as modifying that common law choice of law rule[29]. There was no applicable provision in a law of the Commonwealth. The upshot was that s 80 required the County Court to apply that common law choice of law rule in determining the law to govern the action[30].
[27]John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 530 [53], 562 [156]; Agtrack (NT) Pty Ltd v Hatfield (2005) 79 ALJR 1389 at 1392 [8]; 218 ALR 677 at 679‑680.
[28]Section 80 states:
"So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters."
[29]Section 80 speaks of "the statute law in force" in that State; the text and structure of s 80 indicate that laws of other States are not "in force" there. Submissions by South Australia and Western Australia to the contrary were correctly controverted by the appellant.
[30]Blunden v The Commonwealth (2003) 218 CLR 330 at 338‑339 [16]-[18], 359‑361 [91]-[97].
However, s 80 by its terms is denied any operation which is inconsistent with the operation of the Constitution. The appellant then submits that to apply, by the medium of s 80, the statute law of Victoria as the law which governs the action for indemnity, and operates to the exclusion of the NSW Act, would offend the Constitution in several respects. One respect is the operation of s 117 of the Constitution upon the Victorian Act. Consideration of s 117 may be deferred. The other respect concerns principles for resolving inconsistency between State laws, which are said to be derived from the text and structure of the Constitution[31]. This argument will be treated first.
[31]McGinty v Western Australia (1996) 186 CLR 140 at 168-169; APLA Ltd v Legal Services Commissioner (NSW) (2005) 79 ALJR 1620 at 1665 [240]; 219 ALR 403 at 462.
The case for the appellant on inconsistency
There are threshold difficulties with the appellant's case which should be identified immediately. Upon its proper construction did the NSW Act speak at all, or in opposition, to the County Court action by the Commission against the appellant? The provisions of Pt 5 (ss 40-67) and Pt 6 (ss 68-82A) of the NSW Act, headed respectively "CLAIMS AND COURT PROCEEDINGS TO ENFORCE CLAIMS" and "AWARDING OF DAMAGES", were not engaged. The statements of the objects of those parts made in ss 40A and 68A indicate that the legislation is concerned with claims for damages, not an indemnity claim of the nature asserted by the Commission. That claim had its source in Victorian statute law, but it is not suggested that New South Wales should refuse to recognise s 104(1) on the grounds of its public policy. Section 118 of the Constitution would appear to foreclose any such reliance upon public policy[32]. Within the Commonwealth, considerations of the kind considered in Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd[33] would not arise[34].
[32]John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 533‑534 [64].
[33](1988) 165 CLR 30.
[34]John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 549‑551 [119]-[124].
Where then is the operation of the NSW Act, against which it is said that s 80 of the Judiciary Act cannot operate to enlist the common law choice of law rule which selects the Victorian Act? An affirmative answer appears to require the adoption into inter-State relations of the "covering the field" doctrine developed by this Court in giving effect to the paramountcy of Commonwealth law. But as between States there is no paramountcy. Where then lies the necessity or sufficiency of reasoning to displace the selection of the rule of decision in the County Court litigation which is obtained through Ch III of the Constitution and the Judiciary Act?
The appellant's submissions took three steps, each depending upon what preceded it. The first postulated an "inconsistency" or, the preferred term, a "clash" which the Constitution addressed. The second was to identify the constitutional mechanism which resolved the clash. The third was to subject the operation of the Judiciary Act in this case to that constitutional mechanism. These steps are now considered in turn.
The appellant submitted that there was a "clash" between the operation of the two statutes. This was demonstrated by considering an outcome in favour of the claim to indemnity made by the Commission in this case. What was said to be "New South Wales funds", apparently the resources of the third‑party insurer of the appellant, would be depleted by reference to an amount which, under the scheme of the NSW Act, should be paid out only pursuant to an action for damages by Mr and Mrs Sutton litigated in accordance with the stipulations (including the limitation provision in s 52) of the NSW Act.
The Constitution required that "clash" to be resolved by a means other than the common law choice of law rules. The path dictated by the Constitution required the court of the forum to identify which of New South Wales and Victoria had "the greater governmental interest" in providing for the compelled financial consequences (not necessarily all those consequences) of a motor vehicle accident occurring in New South Wales.
The greater governmental interest was that of New South Wales. Why this was so, and why the greater governmental interest here was not that of the State with which the indemnity claim had the closest connection (the choice of law rule in quasi-contract and for a restitutionary claim), was not succinctly articulated. Rather, various considerations were prayed in aid. These appear to be as follows.
The appellant contended that her preferred outcome was referable to, or consistent with, the "constitutionally conformed" but not mandated choice of law rule in tort as settled by Pfeiffer. It also was said that New South Wales had "the closer nexus to the subject matter of the intersection" between the two laws. That "intersection" appeared to be "how [much] money can be paid out for accidents [occurring in New South Wales]". Another consideration was that the entitlement to indemnity only arose under s 104(1) because of the liability of the appellant under the combination of the NSW Act and the common law of tort and it was the law of New South Wales which was availed of in fixing the "cap" under s 104(2).
The outcome of this application of the constitutionally mandated criterion of greater governmental interest was that the primacy of the NSW Act could not accommodate the operation of s 104(1) against the appellant. This meant that nothing in the provisions of the Judiciary Act could operate in a way which denied that result.
Conclusions respecting inconsistency
The acceptance, now recognised in s 2(1) of the Australia Act 1986 (Cth), of the proposition that State Parliaments may make laws with extra-territorial operation, allows for the possibility that individuals and corporations are subjected to conflicting commands. Legislation most often enlists the criminal law and creates offences to encourage observance of its requirements. Questions of "double jeopardy" may arise[35].
[35]Pearce v The Queen (1998) 194 CLR 610 at 630 [71], 644‑645 [107].
The Constitution itself, in s 74, contemplates the exercise of federal jurisdiction in resolving questions "as to the limits inter se of the Constitutional powers of any two or more States"[36]. Other provisions of the Constitution (in particular, ss 52, 90) require a distinction between exclusive and concurrent legislative power. The body of authority concerning s 109 of the Constitution is concerned with inconsistent laws made in exercise of concurrent federal and State powers. There was some consideration of inconsistency between State laws in Port MacDonnell Professional Fishermen's Association Inc v South Australia[37] but no "real" inconsistency arose on the facts of that case.
[36]Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at 52‑53 [109]-[110].
[37](1989) 168 CLR 340 at 374. See also Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at 34 [48], 52-53 [110], 61 [131].
Any question of "inconsistency" in the present case requires as a first step asking whether the NSW Act as well as the Victorian Act spoke at all to the indemnity action brought by the Commission. That is not answered by contemplation at the higher realms of abstraction upon which the submissions for the appellant concentrated. What is called for is a consideration of the particular claim made by the Commission, rather than, as the appellant would have it, looking in the broadest sense to a character attributed to the NSW Act as implementing a policy controlling the total financial outcomes of accidents occurring in that State. References by the appellant to an outcome consistent with the choice of law rule in tort were inapposite. When attention is given to the nature of the claim made by the Commission, it is apparent, and in accord with what has been said earlier in these reasons, that the NSW Act does not speak in any way which impairs or detracts from the pursuit of that claim. Indeed, as also pointed out, the coverage of a claim by the appellant under the third-party policy to answer the demand for indemnity by the Commission would supplement the operation of the Victorian Act. Claims of such a kind are only likely to be a small proportion of claims under the two legislative schemes and then only because of the interstate movement of motorists within Australia in accordance with the freedom that the Constitution itself envisages in s 92.
The appellant's case fails at the first step. But something more should be said respecting the criterion of inconsistency the appellant propounded.
Constitutional discourse has been informed by principles of varying width and precision which identify and resolve the disharmony between laws of more than one legislature. One principle adopts from Imperial law the term "repugnancy"; another the term "incompatibility" considered recently in Fardon v Attorney-General (Qld)[38]. The broadest principle is the "covering the field" test which was developed in cases applying s 109 of the Constitution, as remarked above. Authorities such as Collins v Charles Marshall Pty Ltd[39] and Ansett Transport Industries (Operations) Pty Ltd v Wardley[40] which upheld State laws against "covering the field" claims by federal law suggest that the NSW Act would not prevail over s 104(1) if this were the determinative constitutional norm.
[38](2004) 78 ALJR 1519; 210 ALR 50.
[39](1955) 92 CLR 529.
[40](1980) 142 CLR 237.
But principles derived from Imperial law and later from s 109 assume a hierarchy of legislative competence, whether its peak be at Westminster or at the seat of government established under s 125 of the Constitution. The "covering the field" test was devised to uphold conceptions of federalism expressed in the paramountcy provision of s 109[41]. Whatever principle may be settled upon to meet cases of inconsistency between laws of several States in exercise of concurrent powers held as polities of equal authority, it will not be one that relies upon a "covering the field" test.
[41]APLA Ltd v Legal Services Commissioner (NSW) (2005) 79 ALJR 1620 at 1658 [192]; 219 ALR 403 at 452.
Perhaps with an awareness of these difficulties, the appellant in her submissions eschewed reliance upon the s 109 case law. (And, in light of Pfeiffer[42], reliance upon s 118 of the Constitution as itself a circuit breaker also was discounted in oral submissions.)
[42](2000) 203 CLR 503 at 533-534 [62]-[65], 555‑558 [137]-[143]; see also Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 536‑537 [127].
Instead, the appellant appealed to the constitutional criteria of a "clash" at an "intersection" which was resolved by ascertainment of the "greater governmental interest". The latter may take its inspiration from United States conflict of laws jurisprudence which, along with the "proper law of the tort", was not accepted for Australia in Pfeiffer[43] and is now in disfavour in the United States Supreme Court[44].
[43](2000) 203 CLR 503 at 537-538 [76]-[80], 562‑563 [157]-[158].
[44]See Franchise Tax Board of California v Hyatt 538 US 488 (2003).
New South Wales has an undoubted interest in legislating with respect to motor accidents in its territory; Victoria also has an undoubted interest in recoupment from out‑of‑State tortfeasors of payments Victoria has made to injured residents of Victoria. Which interest is the greater? The interests are not easily measurable or even comparable within the means available in the processes of adjudication. It is undoubtedly the case that the many criteria of constitutional adjudication do not involve bright lines. That is no encouragement to further indeterminacy.
In the end, three things are to be said on this branch of the case. First, no adequate constitutional criterion is asserted by the appellant which would resolve inconsistency between the laws of two or more States. That criterion awaits formulation on another occasion where the circumstances of the propounded incompatibility of the State laws suggest a criterion by which that incompatibility is to be recognised and resolved. Secondly, and in any event, the NSW Act has not in this case been shown to speak at odds with the claim to indemnity made against the appellant in the County Court. Thirdly, the operation of the Judiciary Act is not displaced in the County Court action and the law of Victoria is the lex causae in that litigation.
There remains for consideration the submissions respecting s 117 of the Constitution.
Section 117 of the Constitution
The appellant submits that if she had resided in Victoria rather than New South Wales she would not have been subjected to the claim to indemnity under s 104(1). This sub‑section in its terms does not apply to "a person who is entitled to be indemnified [by the Commission] under section 94" and, it is said, the practical effect of this is that, had the appellant resided in Victoria, the exception would have operated and s 104(1) would not have been engaged.
Section 117 states:
"A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State."
The appellant is a subject of the Queen resident in New South Wales and contends that she is exposed in Victoria to a disability or discrimination, amenability to a s 104(1) claim by the Commission, which would not be equally applicable to her were she a resident of Victoria. The mandatory terms of s 117 of the Constitution require that the appellant not be amenable to the s 104(1) claim, with the result that there is no content to the "matter" propounded under s 75(iv) of the Constitution. This last step was not advanced in these terms but was implicit in the appellant's case.
That submission may be compared with the outcome in Goryl v Greyhound Australia Pty Ltd[45]. The plaintiff, as a resident of New South Wales, was, by the terms of s 20 of the Motor Vehicles Insurance Act 1936 (Q), limited in her action in the Queensland District Court to the damages she could have recovered under New South Wales law for her motor vehicle accident in New South Wales; these were less than the damages she would otherwise have received under Queensland law had she been a Queensland resident. Section 20 was rendered inapplicable by s 117 of the Constitution to limit recovery of damages.
[45](1994) 179 CLR 463.
However, for several reasons Goryl does not support the reliance placed upon s 117 by the present appellant.
The appellant urged consideration of the reality of the situation as that to which s 117 is directed. That emphasis upon substance and practical operation of laws impugned for contravention of a constitutional limitation or restriction on power may be accepted[46]. But to approach the present case in that way does not assist the appellant. She was required by the NSW Act to have third‑party insurance and it was not asserted that she had any direct personal financial interest in the outcome of the case. The insurer no doubt has an interest, but the NSW Act (s 101) stipulates that applications to become a licensed insurer may be made only by corporations licensed under the Insurance Act 1973 (Cth) or by the Government Insurance Office of New South Wales or its affiliates. It is not suggested that a corporation may be a subject of the Queen within the meaning of s 117.
[46]Ha v New South Wales (1997) 189 CLR 465 at 498.
Secondly, unlike the Queensland statute considered in Goryl, the operation of s 94 of the Victorian Act is not conditioned by residence. Rather, it is conditioned by payment for the relevant period of the "transport accident charge" for the registered motor vehicle in question. Section 94 would have obliged the Commission to indemnify Mr Sutton as driver of a motor vehicle registered in Victoria in respect of any liability in respect of an injury to or death of a person arising out of its use in Victoria or in another State or Territory, but not in respect of any period where the transport accident charge had not been paid. Payment of that charge to the Commission is required by s 109 and receipts are paid by the Commission into the Fund established under s 27. The obligation of payment of the charge is imposed upon the owner of a "registered motor vehicle" (s 109(1)). That expression has a detailed definition in s 3 which refers to the Road Safety Act 1986 (Vic) and the regulations made thereunder. The upshot is that a vehicle may be registered in Victoria even though its owner or user or both ordinarily reside outside that State[47], and a person must not use a vehicle on a highway in Victoria unless registered under that statute or exempted under the regulations[48].
[47]Road Safety (Vehicles) Regulations 1988, reg 203.
[48]Road Safety Act 1986 (Vic), s 7.
On the other hand, the effect of s 111 of the Victorian Act is that the owner of the car driven by the appellant, being insured under the third‑party system in New South Wales, would not have been required, while in Victoria, to have paid the transport accident charge.
The words in brackets in s 104(1), namely "other than a person who is entitled to be indemnified under section 94", reflect the circumstance that the entitlement against the Commission under s 94 is, in a practical if not also legal sense, the consideration for payment of the transport accident charge. Without the exception to s 104(1), the benefit under s 94 conferred by payment of the transport accident charge required by s 109 would have been rendered nugatory.
The appellant is exposed to the claim by the Commission to indemnity under s 104(1). She is not exempted. But that is because she was not required to have paid the charge levied under the Victorian scheme.
There is no differential treatment in s 94 attributable to residence so as to attract s 117 of the Constitution. A non-Victorian resident who owned or drove a registered motor vehicle in respect of which the s 109 charge had been paid would have the benefit of the exception to s 104(1); a Victorian resident who had failed to pay the charge would not have the benefit of the exception.
By its terms, s 117 of the Constitution is addressed to protecting a "subject of the Queen" from disability or discrimination in the form of laws and governmental actions or policies. It is therefore necessary in each case where s 117 is invoked to examine the operation of the impugned law, action or policy, to decide whether the discrimen it chooses concerns the State residence of the person who invokes its provisions.
It is unnecessary to consider, on the footing that there was a disability or discrimination attributable to residence, whether this was appropriate and adapted (sometimes described as "proportional"[49]) to the attainment of a proper objective[50].
[49]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567, referring to Cunliffe v The Commonwealth (1994) 182 CLR 272 at 377, 396.
[50]Permanent Trustee Australia Ltd v Commissioner of State Revenue (Vict) (2004) 220 CLR 388 at 423‑424 [88]-[89].
Orders
The appellant seeks orders displacing the answers given by the Court of Appeal. In particular she seeks answers that s 104(1) of the Victorian Act would be invalid and inapplicable against the appellant in the County Court proceeding. That answer should not be given. The appeal should be dismissed with costs.
CALLINAN J. This appeal raises federal constitutional questions, and questions about the integrity of the Constitutions of the States, and their hegemony over events and people within them, and of choice of law.
Facts and previous proceedings
On 20 July 1996, a car driven by the appellant ("the New South Wales car") collided with a car driven by Mr John Sutton ("the Victorian car") on a road in New South Wales. Mrs Helen Sutton was a passenger in the Victorian car. Mr and Mrs Sutton were residents of Victoria at the time of the collision. Both suffered injuries as a result of it. The Victorian car was registered in Victoria. The New South Wales car was owned by the appellant's son. It was registered in New South Wales. When it was not in use it was kept at a garage at the appellant's residence at Gravesend in New South Wales[51].
[51]The lex loci stabuli, a term used, as Dicey and Morris point out, in jest with respect to the garaging of cars: Dicey and Morris on the Conflict of Laws, 13th ed (2000), vol 1 at 30 [1-075].
The respondent, which is a body corporate established by the Transport Accident Act 1986 (Vic) ("the TA Act"), has paid compensation to Mr and Mrs Sutton ("the casualties") in satisfaction of a claim made by them under that Act. How their entitlement in that regard arises will be explained later.
The respondent commenced proceedings against the appellant in the County Court of Victoria on 9 April 2002 to recover from the appellant the sum of the payments made to Mr and Mrs Sutton under the TA Act. It contended that s 104 of that Act gave it a statutory right of indemnity against the appellant recoverable in the Victorian courts. On 18 July 2003, at the request of the parties, the County Court ordered that three questions be reserved for the consideration of the Court of Appeal of Victoria, in the form of a special case, pursuant to s 76(1) of the County Court Act 1958 (Vic).
The Court of Appeal of Victoria
The questions stated for the Court of Appeal (Winneke P, Callaway and Nettle JJA) and the answers given by that Court appear below[52]:
[52]The decision of the Court of Appeal is reported as Transport Accident Commission v Sweedman (2004) 10 VR 31.
"A.Whether, given the agreed facts set out in paragraphs 1-9 of the Special Case, s 104(1) of the Transport Accident Act 1986 (Vic) is capable as a matter of construction of applying to the [appellant] so as to give the [respondent] a right of indemnity against the [appellant].
[Yes.]
B.Whether, given the agreed facts set out in paragraphs 1-9 of the Special Case, this proceeding is a matter within federal jurisdiction and, if so, whether s 104(1) of the Act is capable of applying as against the [appellant] in light of ss 79 and 80 of the Judiciary Act 1903 (Cth).
[Yes.]
C.Whether, given the agreed facts set out in paragraphs 1-9 of the Special Case, in its potential application to the [appellant] in this proceeding s 104(1) of the Act is invalid or inapplicable as being:
(a)contrary to Chapter III and s 118 of the Commonwealth of Australia Constitution Act ('the Constitution'); or
[No.]
(b) contrary to s 117 of the Constitution; or
[No.]
(c)inconsistent with the operation of the provisions of the Motor Accidents Act 1988 (NSW), as it applied at the time of the Accident.
[No.]"
In the Court of Appeal, the appellant's principal argument was that s 104 of the TA Act did not apply to her, as a matter of construction. She submitted that this was so because the intended reach of the TA Act was to the borders of Victoria only: otherwise the section would have the potential to expose tortfeasors to double liability, or double jeopardy in respect of torts occurring outside the State. That, and her other arguments were rejected by the Court of Appeal. The appellant did not press the argument principally relied on there in this Court. The Victorian Parliament has, in any event, amended s 104 of the TA Act to apply it explicitly to legal liability for events arising outside Victoria[53].
[53]See s 31(a) of the Transport Accident (Amendment) Act 2004 (Vic), which commenced operation on 8 December 2004.
Nettle JA, with whom Winneke P agreed, rejected the appellant's further submission, and the one that figured more prominently in this Court, that because the proceeding was within federal jurisdiction, that is, as a matter between a State and a resident of another State within the meaning of s 75(iv), and also a matter arising under the Constitution or involving its interpretation, the law to be picked up and applied by ss 79 and 80 of the Judiciary Act 1903 (Cth) should be the common law choice of law rule applicable to all Australian torts. The laws to be applied were therefore the laws in force in New South Wales, the lex loci delicti. Nettle JA rejected the submission on the basis that the claim under s 104 of the TA Act was in the nature of a statutory "quasi-contractual cause of action in the nature of a quantum meruit"[54], rather than a claim in tort, even though, in order to succeed the respondent would have to prove that the appellant had committed a tort[55].
[54](2004) 10 VR 31 at 41 [28], citing Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520 at 527 and Hodge v Club Motor Insurance Agency Pty Ltd (1974) 7 SASR 86 at 102.
[55]See s 104 of the TA Act.
Nettle JA also rejected another of the appellant's submissions, and again one that in a slightly different form, assumed much more prominence in this Court, that s 104(1) trespassed, unconstitutionally, upon a preserve of the New South Wales legislature, and that it was beyond the constitutional competence of the Victorian Parliament to provide for the civil liability of an interstate resident in respect of a collision between motor vehicles occurring in another State. Nettle JA said this of it[56]:
"It is within the competence of a State to make things in or connected with the State the occasion for the imposition of liability, and evidently the occasion for imposition of liability under s 104(1) is that the tort in question involves a Victorian resident or a Victorian registered motor car. Arguably it is also sufficient to sustain the section that it applies to acts or omissions outside Victoria that have had consequences within the State and it should not be regarded as a problem that the section is productive of consequences for persons or conduct in another State or Territory."
His Honour went on to say[57]:
"[I]t is tolerably clear that Victoria has power to impose civil liability upon the driver of a Victorian registered vehicle in respect of his or her driving of the vehicle wherever in Australia, and to impose upon a Victorian resident civil liability in respect of a traffic accident wherever occurring in Australia, and to impose civil liability upon a resident of another State in respect of a traffic accident occurring in Victoria. Therefore it is difficult to see why Victoria would not also have power sufficient to sustain the imposition of liability under s 104 upon a resident of another State in respect of a motor accident occurring in that other State where it results in injury to a victim ordinarily resident in Victoria (or to others to whom the commission may be liable to pay compensation)."
[56](2004) 10 VR 31 at 54 [71].
[57](2004) 10 VR 31 at 55 [74].
Nettle JA also rejected the appellant's next submission, that s 104 of the TA Act and the Victorian statutory scheme generally subjected her to a disability or discrimination to which she would not be subject if she were resident in Victoria. That disability or discrimination was said to arise out of the fact that the respondent had no entitlement to recover from an owner or driver of a "Victorian registered motor vehicle": s 94 precludes that. It was then argued that a vehicle could not be registered in Victoria unless it was ordinarily kept there, and that the section had therefore the practical effect of favouring Victorian residents and discriminating against residents elsewhere. Nettle JA formulated the question whether s 104 created discrimination against non-Victorian residents in contravention of s 117 of the Constitution as, in essence, a question whether s 117 proscribes discrimination by Victoria in the provision of compulsory third party insurance benefits to owners and drivers of vehicles registered in Victoria exclusively, that is without also providing the same or similar benefits to owners and drivers of vehicles registered in other States and Territories. After discussing the reasons of each of the Justices in Street v Queensland Bar Association[58], Nettle JA concluded that s 117 does not operate to do so here.
The appeal to this Court
[58](1989) 168 CLR 461.
The appellant's arguments
The appellant submitted in this Court that in consequence of an inconsistency, as she put it, a "clash", between s 104 particularly, and some other provisions generally, of the TA Act on the one hand, and the provisions of the Motor Accidents Act 1988 (NSW) ("the MA Act") on the other, the former was rendered "inoperative": it accordingly could not be relied upon by the respondent to recover money from the appellant. Counsel for the appellant described the "clash", in language customarily used in discourse about s 109 of the Constitution, as one of "operational inconsistency", adding, that "[i]n operation this Victorian law [the TA Act] has an effect which is sufficiently inimical to the intended effect of the New South Wales law [the MA Act]" to produce that result. It was next submitted that because the New South Wales legislature had a "closer nexus" with the subject matter of the clash between the two enactments, the New South Wales enactment prevailed over the Victorian one. The appellant emphasized the fact that the operation of s 104 of the TA Act depended upon the creation, and therefore, the existence of an underlying liability of a tortfeasor under the MA Act. This, it was contended, supported the appellant's argument that the TA Act "force[d] an intersection" with the MA Act in a manner that "altered, detracted [from] or impaired" its intended operation.
Before examining the respects in which the appellant submitted that s 104(1) of the Transport Accident Act was inconsistent with the Motor Accidents Act, it is desirable to point to certain features of each Act.
Section 35 of the Transport Accident Act creates an entitlement in a person to compensation in accordance with the Act where the transport accident occurred in Victoria, or where it occurred in another State or Territory and involved a "registered motor vehicle" and, at the time of the accident, the person was a resident of Victoria, or the driver of, or a passenger in, the registered motor vehicle. The compensation is paid by the Transport Accident Commission. Section 104(1) gives the Commission a right of indemnity against the person responsible for the accident.
The Motor Accidents Act has several functions[111]. One relates to insurance. The Act creates a requirement that motor vehicles used on public streets in New South Wales be insured by a "third-party policy" in the terms of Sched 1: ss 3(1), 8, 9 and 11. The third-party policy insures the owner and driver of all but excepted motor vehicles against "liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle … in the use or operation of the vehicle in any part of the Commonwealth …". Thus the liability of the insurer is not limited to liabilities arising in New South Wales. Nor is the liability limited to damages payable to an injured person. The liability includes a liability like that arising under s 104 – a statutory liability to indemnity which is not a claim for damages.
[111]The Motor Accidents Compensation Act 1999 (NSW) repealed some parts but not other parts of the Motor Accidents Act. It is convenient to speak of the Motor Accidents Act using the present tense, whether or not the provisions discussed remain in force now.
Thus the third-party policy extends to the circumstances of a case like the present, where the victims did not sue the owner or driver in New South Wales, but were compensated by the Commission in Victoria, and the Commission sought indemnity from the driver. Section 104(1) thus does not prevent the insurance scheme contemplated by the Motor Accidents Act from operating in an integrated fashion so as to indemnify both the driver and those whom she injured. And it does not take away from the defendant an advantage which that defendant would have had if the victim had not sought compensation from the Commission but had instead sued in New South Wales.
Another function of the Motor Accidents Act is to regulate the enforcement of common law rights of action for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle (ss 40(1) and 41). One way in which that function is fulfilled is through Pt 5. The principal role of Pt 5 is to create procedural requirements regulating the manner in which plaintiffs enforce their claims for "damages" in respect of death or injury so caused. A claim under s 104(1) is not a claim of that kind. Part 5 relates to the claims of injured persons, not to claims for indemnity from those who have met claims by injured persons. This illustrates the fact that the Motor Accidents Act does not exhaustively define the remedies which may exist in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.
Yet another function of the Motor Accidents Act is seen in Pt 6. It limits the amounts to be arrived at as integers in an award of damages which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle. Although Pt 6 is exhaustive in the sense that damages are not to be awarded to a person in respect of a motor accident contrary to Pt 6, it does not deal with claims for indemnity by those who have met claims relating to death or injury, but only with the damages payable under those claims.
In short, the relevant sections of the Motor Accidents Act, in terms of what they provide and what they do not provide, do not seek to deal with and regulate claims of the kind which arise under s 104(1). But they do permit persons against whom indemnity is obtained under s 104(1) to recover from their insurers. There is thus no collision between the Motor Accidents Act and s 104(1) in that respect. Similarly, s 104(1) does not purport to reduce the ambit of the Motor Accidents Act. Section 104(2) provides that the liability of the defendant under s 104(1) shall not exceed the amount of damages payable to the injured person: that is, under s 104(1) neither the tortfeasor nor the insurer incurs greater liability than that tortfeasor or insurer would have incurred had the victim proceeded against the tortfeasor under the common law as modified by the Motor Accidents Act.
Against this background it is convenient to examine the five groups of inconsistencies between s 104(1) and the Motor Accidents Act which the appellant contended for. They centre on a much smaller range of the provisions than those referred to in argument.
The first of the five was that there were differences between the Motor Accidents Act and the Transport Accident Act as to the permissible recovery of particular heads of loss. Section 104(2) of the Transport Accident Act prevents these differences from having significance. Even if in relation to some heads of loss Victoria is more generous than New South Wales and in relation to others New South Wales is more generous than Victoria, whatever a victim recovers under the Transport Accident Act, the amount recoverable under s 104(1) by the Commission cannot exceed the amount recoverable by the victim under the Motor Accidents Act. For this reason it is necessary to reject the appellant's submission that recoveries by the Commission under s 104(1) "undermine the NSW Parliament's attempts to restrict what is compensable".
The second alleged inconsistency was that judgment under the Motor Accidents Act in favour of a victim would crystallise the liability of the insurer into a once-and-for-all amount, while potential liabilities under s 104(1) could go on for an extended period. It was said that this impaired the ability of insurers "to provision for, or close off, claims", inconsistently with the objects of the Motor Accidents Act. It is convenient to consider this "inconsistency" with the third inconsistency, which was said to lie in the fact that the Motor Accidents Act, s 52, subjected a claim under the Motor Accidents Act by a victim to a three year limitation period, while a claim by the Commission under s 104(1) was subjected by s 5(1)(d) of the Limitation of Actions Act 1958 (Vic) to a six year limitation period. The appellant pointed out that in this very case the s 104(1) claim was instituted more than three years after the accident. This comparison of the provisions does not indicate "inconsistency". To compare the limitation period applicable to a claim for damages against the owner/driver at fault with the limitation period applicable to a claim by the Commission for indemnity is not to compare like with like. A more appropriate comparison is a comparison between the three year limitation period binding the claimant under the Motor Accidents Act and s 68 of the Transport Accident Act. Section 68(1) gives to a person making a claim on the Commission as the result of a transport accident one year after the accident or a death caused by the accident in which to make the claim, or one year after the injury first manifested itself. Section 68(2) provides for claims to be made within three years if the Commission considers there are reasonable grounds for the delay. The limitation regime created by the Victorian legislation in relation to claims by injured persons against the Commission, far from being more lenient than that imposed by the New South Wales legislation on claims by injured persons against tortfeasors, is less lenient. The fact that a claimant hampered by the Victorian limitation regime can sue in New South Wales does not reveal an "inconsistency" which is "inimical" to the Motor Accidents Act. Even if it be assumed that while only one claim can be made under the Motor Accidents Act, several may be made under s 104(1), none of the latter can be made after six years, and all must relate to payments by the Commission in response to claims by victims made within three years at the latest. No doubt there is a risk, as this case reveals, that from time to time an insurer may have to indemnify an owner or driver sued by the Commission under s 104(1) up to six years after the accident. Since the third-party policy insures against "liability in respect of" vehicles used or operated in any part of the Commonwealth, the legislative language contemplates the policy meeting liabilities other than those which sound in damages and which are subject to the specific limitation and other restrictions of Pts 5 and 6 of the Motor Accidents Act. The fact that the Motor Accidents Act contemplates those other liabilities arising indicates that legislation in other States generating them is not inconsistent with the Motor Accidents Act. In particular, provision will have to be made for those other liabilities, or they will have to be closed off, as insurers see fit in the light of claims under the legislation of other States which are subject to limitation periods which may be longer than that provided by the Motor Accidents Act. Those are decisions for insurers to make in the light of their experience of those claims being made, and their perception of the likelihood of them being made in future. That circumstance does not create an inconsistency with the objects of the Motor Accidents Act in view of the terms of s 9(a)(i) and Sched 1, for the objects must give way to those clear words: the role of the statutory objects is only to assist in resolving a competition between competing constructions (see s 2B(1)).
The fourth inconsistency was said to lie in the differences between the procedures which are to be followed by victims making claims under each Act. So far as these differences rest on a relevant comparison, they tend to lack materiality, partly because some of them are trivial, partly because the absence in the Transport Accident Act of requirements equivalent to those in the Motor Accidents Act will be overcome by the fact that in practice claimants under the Transport Accident Act will tend to behave in a manner functionally similar to the way required under the Motor Accidents Act, and partly because s 104(2) prevents recovery under the Transport Accident Act greater than that achievable under the Motor Accidents Act. But the fundamental reason why the fourth alleged inconsistency is not a true inconsistency is that the Motor Accidents Act contemplates that persons driving in New South Wales will be insured against liabilities other than those relating to the payment of damages; that is, statutory indemnities of the type illustrated by s 104(1). A difference between what a claimant for damages must do under the Motor Accidents Act and what a claimant for payments under the Transport Accident Act must do does not reveal an inconsistency between the Motor Accidents Act and s 104(1). Recovery by a claimant for damages under the Motor Accidents Act is a form of recovery distinct from recovery under s 104(1). The fact that the latter kind of recovery is one which the language of the Motor Accidents Act and the third-party policy contemplates as available precludes a conclusion of inconsistency.
The fifth inconsistency relied on turned on "the possibility of double recovery by [the Commission] and the victim", which was said to undermine the goals of the Motor Accidents Act – controlling claim payments and insurance premiums (s 2A(2) and s 68A). This appears to postulate a claim in Victoria against the Commission and an earlier, concurrent or subsequent claim in New South Wales against the tortfeasor. In this Court the argument was put very briefly, perhaps because Callaway JA and Nettle JA in the Court of Appeal gave compelling reasons for the conclusion that s 42[112] and s 104 of the Transport Accident Act in combination prevent any double recovery by victims and also any double recovery by the Commission[113]. For those reasons, which it is unnecessary to repeat, the argument must be rejected.
[112]Sub-sections (1), (2), (3) and (5) of s 42 provide:
"(1)This section applies where a person is injured or dies as a result of a transport accident if –
(a) the person, a dependant of the person or the surviving spouse of the person is entitled to compensation in respect of the accident in accordance with this Act; and
(b) a person has a right to claim compensation or a right of action in respect of the accident under the law of a place outside Victoria.
(2)The person, or a dependant or a surviving spouse of the person, is not entitled to compensation in accordance with this Act if, under the law of a place outside Victoria –
(a) the person, dependant or surviving spouse has been paid or has recovered an amount of compensation or damages; or
(b) an award of compensation or judgment for damages has been made, given or entered; or
(c) any payment into court has been accepted; or
(d) there has been a compromise or settlement of a claim; or
(e) a claim for compensation or action for damages is pending.
(3)If the person, a dependant or a surviving spouse of the person –
(a) receives compensation under this Act in respect of a transport accident; and
(b) under the law of a place outside Victoria –
(i)receives compensation or damages; or
(ii)obtains an award of compensation or judgment for damages; or
(iii)payment into court has been accepted; or
(iv)there has been a settlement or compromise of a claim –
in respect of the accident –
the Commission may recover from that person, dependant or surviving spouse as a debt due to the Commission the amount of compensation paid under this Act or the amount to which paragraph (b) refers, whichever is the lesser.
...
(5)If a person who claims or is entitled to claim compensation under this Act in respect of a transport accident claims compensation or commences proceedings outside Victoria for the recovery of damages in respect of that accident, the person must give notice in writing to the Commission."
[113]Transport Accident Commission v Sweedman (2004) 10 VR 31 at 36-38 [9]-[17], 43-44 [38] and 45-46 [42]-[44].
The appellant's arguments that material inconsistencies exist must fail. The Transport Accident Act and the Motor Accidents Act have differences, but they are not what the appellant accepted had to be found – inconsistencies in substance. They satisfy no possible test for inconsistency, and the correctness of various tests for inconsistency debated at the bar table need not be considered.
Accordingly, the answer given by the Court of Appeal of Victoria to question C(c) is correct. Thus the question of how inconsistencies between the legislation of different States are to be resolved does not arise.
I would prefer to say nothing about the references made in the reasons of the majority and in the reasons of Callinan J to United States authorities. Very little reference was made in argument to United States law. The respondent made no reference to it. Three interveners, and the appellant in reply, referred to it only briefly.
Section 117 of the Constitution
Turning to question C(b), I agree with the reasons given by the majority for concluding that s 104(1) is not contrary to s 117 of the Constitution[114]. In consequence, the answer given by the Court of Appeal of Victoria to question C(b) is correct.
[114]At [54]-[66].
Chapter III and s 118 of the Constitution
The notice which the appellant served pursuant to s 78B of the Judiciary Act 1903 (Cth) maintained that s 104 is unconstitutional on the ground that the effect of its application to the facts of this case would be "to facilitate inconsistent and indeterminate legal results for matters arising within Australia, … contrary to the rule of law, the implied requirements of Ch III of the Constitution in relation to the creation and maintenance of one unified system of law, and the requirements of s 118 of the Constitution". However, the appellant did not advance any specific or distinct submission to this Court in support of that proposition beyond contending that to give effect to s 104(1) was to fail to give full faith and credit to the Motor Accidents Act and was to undermine the "unified and integrated legal structure established under, and envisaged and protected by, Chapter III of the Constitution".
These contentions rest on the proposition that the Motor Accidents Act is impaired by the claim under s 104(1). That in turn rested on the argument that there were inconsistencies between s 104(1) and the Motor Accidents Act. It follows from the rejection of that argument that there is accordingly no reason to doubt the correctness of the answer which the Court of Appeal of Victoria gave to question C(a). It also follows that that Court's answer to the second part of question B is also correct.
Orders
I agree with the majority that the appeal should be dismissed with costs.