A car accident in the Northern Territory. One driver is from Victoria and is badly injured.
Northern Territory limits actions for damages for pain and suffering and loss of potential income are limited. In Victoria, on the other hand, these things are allowed.
Very artfully, the lawyer sues in Victoria. Question: which law should apply? _ Victoria’s or the Northern Territory’s. Answer _ the Northern Territory’s, according to the High Court. Why is that so? Well, we sort of know, but we are not exactly sure. Some of the judges say it is because the common law provides that the law of the place of the wrong is applied. Other judges said it was because the Constitution provides that each state must give full faith a credit to other states’ law, the Northern Territory being treated as a state for this purpose.
The upshot is that the Victorian court has to apply Northern Territory law.
The High Court gave that answer in 1988. It has help to tidy up what is called forum shopping. This is where the plaintiff wanders around the arcade of the eight Australian states and territories and picks the one that best suits his case.
Then the Federal Parliament passed legislation that helped some more. It said that a court of a state or territory can itself remove an action to the most appropriate state or territory. In our car-prang example, the case is removed to the Northern Territory.
That is very sensible for most wrongs. But what about defamation. A car-prang can only happen in one state. Most television programs and newspapers publish in several or all states, so in fact they publish eight separate libels. So forum shopping is still alive. People generally not liked by juries (public servants, lawyers and used-car sellers) therefore sue in the ACT where there are no juries in civil cases. People loved by the masses (footballers and pop singers) go to a jury state, like NSW.
And no matter where the action is begun, nearly all libel cases involve lawyers drafting defences and pleadings on up to eight different sets of law. It is very expensive and confusing.
The answer the media and law reformers have sought, on and off, for 20 years is uniform defamation laws. An invitation recently to speak to the ACT Labor Lawyers on this made me put a proposal which withstood cross-examination over a Thai dinner by about 20 lawyers. (My other radical free-speech proposals, on the other hand, were cross-examined to death.)
I suggested that the pursuit of uniform defamation laws was hopeless. The politicians would always stymie it because each state jealously guards its right to have its own law. Besides there is no guarantee that after uniformity is attained, one or two states will not change their law. The quest for uniformity should therefore be abandoned.
Instead, we should lower the sights and press only for uniform rules on how to determine which of the eight separate libel laws should apply in any given case. I proposed: 1. That the defamed plaintiff should be allowed to sue in any state or territory he likes. 2. That the law of the place where he sues and only that law applies to the whole action. And 3. That the plaintiff is deemed to have selected the place where his damage is highest.
So when a Sydneysider sues The Sydney Morning Herald in the ACT (which they often do because ACT law is easy on plaintiffs), the ACT law applies, but the Sydneysider is deemed to have suffered greatest in the ACT where only 3000 copies of the paper are available to a population of 300,000 people. So he might get $5,000 for the ACT damage. His NSW damages would be limited to $4999 and damages in the other states might be say $1000 for Victoria and $500 each for the others. That is a hefty incentive to sue in NSW.
The proposals have a self-regulating element. Plaintiffs who shop for easier laws suffer a converse reduction in damages. They would be naturally attracted to the state where they actually suffered most, which should be the place where they sue anyway.
Under this proposal each state and territory court would be freed from the tyranny of applying seven other laws in each libel action and each state and territory parliament can get on with developing what they think is the best libel law for them without worrying whether it will be undermined by forum shopping.