“The primary object of this rule” – i.e. that procedure should be governed by the lex fori-“is to obviate the inconvenience of conducting the trial of a case concerning foreign elements in a manner with which the court is unfamiliar.”
“If, therefore, it is possible to apply a foreign rule . . . without causing any such inconvenience, those rules should not necessarily . . . be classified as procedural.”
“14. Transitional provision and savings (1) … (2) Nothing in this Part affects any rules of law (including rules of private international law) except those abolished by s.10 above. (3) Without prejudice to the generality of subsection 2 above, nothing in this part – (a) authorises the application of the law of a country outside the forum as the applicable law for determining issues arising in any claim in so far as to do so – (i) Would conflict with principles of public policy; or (ii) would give effect to such a penal, revenue or other public law as would not otherwise have been enforceable under the law of the forum; or (b) affects any rules of evidence pleading or practice or authorises questions of procedure in any proceedings to be determined otherwise than in accordance with the law of the forum. (4) This part has effect without prejudice to the operation of any rule of law which either has effect not withstanding the rules of private international law applicable in the particular circumstances or modifies the rules of private international law that would otherwise be so applicable.”
“7. Seven such restrictions all deriving from theMotor Accidents Compensation Act 1999 have been identified in this case and each of them was pleaded in the defence. Essentially they are as follows: (1) The maximum amount that may be awarded to the claimant for non-economic loss is presently Australian$309,000 (s.134). (2) In assessing loss of earnings, the court must disregard the amount by which the claimant’s net weekly earnings exceed Australian$2,500 (s.125). This amount is indexed to C s.146. (3) There is no award for the first 5 day’s loss of earning capacity (s.124). (4) No award may be made in respect of gratuitous care if such care does not exceed six hours a week and is for less than six months (s.128). Insofar as the gratuitous care exceeds this amount, the amount that can be recovered is limited to certain sums identified in s.128: (5) The discount rate in respect of future economic loss is prescribed at 5% or as stipulated in regulations (s.127).’ No regulations have as yet been enacted: (6) No interest is payable on damages for gratuitous care on uneconomic loss (s.137).’ That provision also specifies that interest in respect of other heads of damage is only payable insofar as conditions set in s.137 are certified. These conditions impose certain procedural steps which the parties are required to state. (7) The claimant must give credit to any payments made to or on behalf of the claimant by amongst others an insurer in relation to the claim made by the claimant (s.130)”
“While procedure is governed by the lex fori, matters of substance are governed by the law to which the court is directed by its choice of law rule (lex causae). Dicey wrote that English lawyers gave ‘the widest possible extension to the meaning the term ‘procedure’. As a matter of history, this is true; and a court may, even today, be tempted to extend the meaning of ‘procedure’ in order to evade an unsatisfactory choice of law rule. But in general the attitude expressed by Dicey has fallen into disfavour for precisely because it tends to frustrate the purposes of choice of law rule. Thus some questions which were at one time thought of wholly in terms of procedure are now considered to be procedural in some of their aspects only. The development of law as to damages illustrates this process. The difficulty in applying this rule lies in discriminating between rules of procedure and rules of substance. The distinction is by no means clear cut. …”
“35-053 The quantification assessment of damages were, at common law, a matter for lex fori and will continue to be so in cases falling within part 3 of the 1995 Act. Thus even when according to a foreign law applicable under the Act damages for personal injuries can be re-assessed in the light of changed circumstances the English law will assess them ‘once and for all’. The English court will, whatever the foreign applicable law may say, assess general damages in accordance with its own domestic law. It has also been said that whether social security benefits are deductible from an award of general damages is a rule for the quantification of damages and not a rule dealing with a head of damage. The question will, accordingly be referred to English law. 35-054 Difficulties may arise, however, in a situation where the applicable law provides a head of damages which is unknown to the law of the forum or provides a cause of action, creating a liability in damages, which is unknown to English law. For then there may be no appropriate rules of quantification available in the forum’s law. According to the Law Commissions the question was expected to ‘arise infrequently and to attempt to solve the problem in advance may be less satisfactory than in leaving the court to resolve the question on the particular facts of the dispute before it.’ One possible solution would be to model the English assessment on that which obtains in the foreign applicable law, though, in effect, this would be to permit the applicable law to determine the question of quantification and, may, in any event be a method which is not always possible in particular cases. 35-055. On the other hand, questions such as whether loss of earning capacity or pain and suffering or (in fatal accident claims) solatium or loss of society are admissible heads of damage, all questions of remoteness of damage ,the existence and extent of the claimant’s duty to mitigate damage, whether exemplary damages are recoverable, the existence and extent of financial ceilings on recoverable damage, and whether recovery can be had for any head of damage unknown to English law are questions of substantive law. As such, these questions will be governed by the law applicable to the tort determined in accordance with the rule 202 or rule 203.”
“99. Two guiding principles should be seen as lying behind the need to distinguish between substantive and procedural issues. First, litigants who resort to a court to obtain relief must take the court as they find it. A plaintiff cannot ask that a tribunal which does not exist in the forum, (but does in the place where a wrong was committed) should be established to deal, in the forum, with the claim that the plaintiff makes. Similarly, the plaintiff cannot ask that the courts of the forum adopt procedures or give remedies of a kind which their constituting statutes do not contemplate any more than the plaintiff can ask that the court apply any adjectival law other than the laws of the forum. Secondly, 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, not with issues of procedure. Or to adopt the formulation put forward by Mason CJ in McKain, ‘rules which are directed to governing or regulating the mode or conduct of court proceedings are procedural and all other provisions or rules are to be classified as substantive. 100. These principles may require further elucidation in subsequent decisions but it should be noted that giving effect to them has significant consequences for the kind of case in which the distinction between substance and procedure has previously been applied. 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 (which is the result arrived at by the statutes previously referred to). The application of any limitation period would, therefore, continue to be governed (as that legislation requires) by the lex loci delicti. Secondly, all questions about kinds of damage, or amount of damages that may be recovered, would likewise be treated as substantive issues governed by the lex loci delicti.”
“133. The Canadian Supreme Court did not consider it necessary to await legislation to do away with this distinction in cases of such a kind. It is explained that ‘the purpose of substantive/procedural classification is to determine which rules will make the machinery of the forum court run smoothly as distinguished from those determinative of the rights of both parties.’ This court should adopt a similar principle whilst recognising that there is no bright line between ‘substance’ and ‘procedure’. Doing so, will, in turn, contribute to reducing the capacity of the parties to affect adversely the rights of others merely by electing to bring a claim in the courts of one law area of the nation rather than another.”
“164. In the present case, the foregoing meant the application of the common law of Australia as applicable in New South Wales, as modified in turn by any relevant statutory law of that state. The statutory modification applicable is that governing the recovery of damages in such claims. This was not a procedural law which could be ignored by the court of the forum because it was bound only by its own procedural rules. It was classified as a matter of substantive law. It was therefore to be applied by the court of the forum, that is, the Supreme Court. Once applied, it limited the recovery which the respondent might make in his proceedings in the Supreme Court. The limitation in question was the same whether the respondent brought those proceedings in a court in New South Wales, in the Australian Capital Territory or in any other court of Australia having jurisdiction in the case.”
“62. In any event, in my judgment, whatever the merits of the defendant’s arguments on this point, I am bound by the decision of the court of appeal. The rationale of the decision is that all aspects of assessment are procedural and that seems to reflect the traditional view. More specifically, by adopting the reasoning of the majority in Stevens v Head in preference to the observations of the editors of Dicey against Morris who supported the contrary view, the court was plainly accepting the view that a rule imposing a ceiling on damages is procedural. Moreover, since in Roerig the court held that the question of deduction of benefits received elsewhere was procedural, it would be directly contrary to the ruling in that case to say that effect should be given to the New South Wales rule that credit should be given for insurance benefits.”
“181. Although McCain and Stevens are recent cases, they have not proved to be of simple and easy application. They were decided by very narrow majorities. Furthermore, there are aspects of the reasoning of the majority in both cases that cannot be satisfactorily reconciled with quite a deal of the reasoning in Breavington in which there were six different judgments delivered. 182. The correctness of McCain and Stevens has been subject to strong and persuasive criticism by a number of authors; Nygh, Morris, Pryles, Juenger, Hancock, Carter, and the Australian Law Reform Commission. The principle for which the cases stand has been replaced and amended by legislation in the United Kingdom. There had been earlier attempts to ameliorate its consequence from the House of Lords and the Privy Council and it has been overturned judicially in Canada. It does not represent the universal law of the United States. 183. The various matters to which I have referred provide compelling reasons why McCain and Stevens should be reconsidered. 184. The continued application of McCain and Stevens stand, as pointed out by Dean J in Stevens, as an open invitation to litigants to forum shop with consequences which could have a significant impact upon the economic, social and other policies of States which have legislated in respect of them differently from other States. This in turn could lead to diversity of judicial approach. It is undesirable that the courts might be placed in the position which could lead to a perception, however unwarranted, that they are in competition with another, or may be seeking to attract litigants from other courts. The present case is a clear example of forum shopping.”
“It is an accepted principle of private international law that matters of substantive law are to be determined by the law of the cause and matters of procedural or adjectival law by the law of the forum. If the relevant provisions of part 6 are classified as substantive, they will be applicable as part of the lex loci, according to the second condition of the choice of law rule. If, however, they are classified as procedural, they will not be applicable to the facts of this case, as all issues of procedure will be determined by the law of Queensland. As I observed in Mckain, the simplicity of the proposition that matters of substance should be determined according to the law of the cause and matters of procedure according to the law of the forum belies the difficulty of identifying just what is procedural and what is substantive. In that case, I stated my reasons for rejecting the traditional equation drawn between matters relating to a remedy and matters of procedure and proposed a new criterion for the substance-procedure distinction which has its genesis in the principle reason for drawing the distinction at all. That criterion characterised as procedural ‘those rules which are directed to governing or regulating the mode or conduct of the court proceedings’. All other provisions or rules are to be classified as substantive.”
“Double actionability (in the sense explained in Mckain) operates satisfactorily in respect of causes of action; with respect to the quantification of damages, no law other than lex fori can work effectively.”
“3.38 The consultation paper provisionally recommended that there should be no change in the present law on the question of damages, which we confirm. Accordingly, the applicable law in tort of delict determines the question of the availability of particular heads of damages whereas the measure or quantification of damages under those heads is governed by the lex fori. Furthermore, we do not think that express guidance need be given in any implementing legislation on how damages should be quantified in a case where a court in the United Kingdom is faced with assessing the quantum of damages under a head of damage unknown to our laws. We expect the question to arise infrequently and to attempt to solve the problem in advance may be less satisfactory than leaving the court to resolve the question on the particular facts of the dispute before it. Limitations on Recovery 3.39 We agree with the view taken by all consultants who commented on this matter, that a statutory ceiling on damages is a substantive issue for the applicable law in tort or delict rather than a procedural issue for the lex fori. We do not think there is a need for this matter to be included in implementing legislation, since it is connected with the question of damages generally, on which we are making no proposals for a change in the law.”