The Private International Law (Choice of Law in Tort) Bill is a useful move which deserves support.
The changes it proposes to the conflict of law rules for tort claims are simple but important.
In the lottery of Member’s Bills, winners are hard to come by. Few bills recently have brought this into focus as sharply as the Airport Authorities Amendment Bill, addressing the rules governing lost luggage disposal, which some commentators suggested was a sub-optimal use of Parliamentary time. But once in a while, a bill like the Private International Law (Choice of Law in Tort) Bill, which proposes simple but important law reform, is drawn.
The Member’s Bill, sponsored by National MP David Bennett, would:
- abolish the so-called “double-actionability” rule (the Rule) under which, when a tort claim is brought in New Zealand for an action committed in another jurisdiction, the New Zealand court can hear the claim only if the tort is actionable in both jurisdictions. It must then apply New Zealand law unless the other country has the more significant relationship with the occurrence and with the parties (s 6)1
- establish a place-of-the-wrong rule in which the applicable law is the law of the jurisdiction in which the events constituting the tort occur (s 7(1))
- provide rules to determine where a tort can be said to have occurred where the events occurred in more than one jurisdiction (s 7(2)), and
- provide for an exception to the place-of-the-wrong rule, allowing a court to apply the law of another jurisdiction where substantially more appropriate to do so (s 8).
Chapman Tripp comments
Chapman Tripp welcomes these changes as an example of smart, no-frills law making, bringing New Zealand into step with comparable jurisdictions.
The Rule has come under increasing attack for being, in the words of one Australian author, “notoriously difficult to understand and apply”.2 It is also arguably unnecessary as forum non conveniens rules separately determine whether a court can and should hear a claim.
For these reasons, Australia, Canada and England have moved in recent years to a place-of-the-wrong rule, which applies the law of the country where the tort was committed.3
While the section 8 exception marks a distinction from the Australian approach, which has viewed exceptions as undermining certainty, the Act’s approach is cogent and certainly preferable to the existing Rule. Any potential adjustments can be considered through the select committee process.
The Bill is therefore timely, if not overdue.
Our thanks to Ollie Neas for writing this Brief Counsel.