Private International Law (Choice of Law in Tort) Bill

I move, That the Private International Law (Choice of Law in Tort) Bill be now read a second time. It is an honour to rise on this bill, the Private International Law (Choice of Law in Tort) Bill, which is now in my own name. As you very well know, Mr Deputy Speaker, this bill was not originally in my name. Instead, the original owner of this small but helpful bill was David Bennett, now the Hon David Bennett. I congratulate him on his elevation to Minister, the first Minister for Hamilton in 33 years. This bill was introduced the House last September, and had its first reading—

💬 Mr DEPUTY SPEAKER: Welcome back.

—in early December. During that time the Hon David Bennett led on this bill admirably, and while I certainly do not have the same emotional connection to it, I have come to understand the incredible value of this small but technical bill. I am now honoured to lead off in this second reading.

This bill may seem complex, but the truth is, for those members who do take the time to understand it, it simplifies matters regarding tort law, and this bill adds significant improvements to the New Zealand legal system regarding international tort. The law of torts covers civil wrongs and many subject matters, from defamation to negligence and other forms of loss that may be incurred. It is a very important part of our legal system and something that has a very strong grounding in common law.

As in all fields of law, issues arise from time to time and solutions are required to improve that system. One of those issues is which jurisdiction applies in special cases and in certain situations—for example, if there is a case where there are multiple jurisdictions involved, the question arises as to which laws apply. These matters are technical and procedural, but are, nevertheless, fundamental to ensuring an effective judicial system. This bill seeks to clarify these elements of confusion in tort law by providing a mechanism so that the New Zealand legal system will be up to date with other common law legal systems around the world that have made similar changes. This will clarify the field of practice for all those involved in this system.

There are fundamental changes introduced by this bill. The first is to abolish a rule called the double actionability rule. Double actionability is a somewhat archaic rule passed down from our common law heritage with England. Basically, under that rule, 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, and then it must apply the New Zealand law unless the other country has the more significant relationship with the occurrence and the parties.

Firstly, the bill abolishes this double actionability rule in clause 6, which describes the abolition of certain common law rules. It is far beyond time this archaic rule is removed. Legal professionals have long called for reform, as the law is widely known as being difficult to understand and near impossible to apply. For these reasons, Australia, Canada, and England have recently reformed this rule as well, and so should we.

This bill takes away, but also creates. With the double actionability rule abolished, clause 7 of the bill creates the general rule that will be used in situations where the intent of the double actionability rule would have applied. In short, clause 7, subclause (1) establishes the place-of-wrong rule, in which the applicable law is the law of the jurisdiction in which the events constituting the tort in question occur. Clause 7(1) states: “The general rule is that the applicable law is the law of the jurisdiction in which the events constituting the tort in question occur.” Simply, if the event happened in the jurisdiction, that jurisdiction’s law would rule supreme. This is a sensible and logical rule, and it is what you would expect of our judicial system.

Clause 7(2) goes into more detail by providing certain rules to determine where a tort can be said to have occurred when the events happened in more than one jurisdiction. As stated in the bill, the rule in clause 7(2) says: “Where elements for those events occur in different jurisdictions, the applicable law under the general rule is taken as being—(a) for a cause of action in respect of damage to property, the law of jurisdiction where the property was damaged.” The second part, clause 7(2)(b), is: “in any other case, the law of the jurisdiction in which the most significant element or elements of those events occurred.” Therefore, the new regime created by this bill caters to two areas comprised of torts, one being around damages to property, and the other being for other cases. In reflection, this bill starts by abolishing the ineffective and outdated double actionability rule, which has no place in the modern legal system. In its place, the bill creates a new multi-purpose regime that has two key elements: one relating to damages to property and the other for more general cases.

This bill does not stop with just building this new regime; the bill goes further and adds a dynamic mechanism to ensure flexibility and adaptability in the regime’s approach to rulings. The bill provides an exemption to the place-of-wrong rule, allowing a court to apply the law of another jurisdiction where it is substantially more appropriate to do so. In essence, the bill, effectively, gives the court the ability to look at certain complex and unique circumstances and judge whether the regime and general rule that this bill creates determines the proper jurisdiction, and whether a different course may be more appropriate. The exemption is clarified in clause 8(1), which has two main elements. The first is “(a) the significance of the factors that connect a tort with the jurisdiction whose law would be the applicable law under the general rule”, and the second part is “(b) the significance of any factors connecting the tort with another jurisdiction”. Once both are satisfied, if it is “substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other jurisdiction, the general rule is displaced …”.

In the general rule, it states the jurisdiction is that in which the events occur, and so it can be displaced under that exemption and the applicable law for determining those issues or that issue is the law of that other jurisdiction. Basically, we have got the ability to now displace the first general rule in circumstances where clause 8 is met. This gives flexibility for the judicial system to properly address cases to that best effect.

When I was a student at Otago University completing my law degree, I remember quite vividly the nuances and colour of tort law, and tort law in respect of international jurisdictions was definitely one of the more complex topics to get your head around. I can see that this bill will certainly help clarify this and make the lives of future law students much easier by simplifying an unnecessarily complex part of tort law. It can be seen to be more supportive of their education moving forward.

I would like to end by simply, again, thanking the Hon David Bennett for passing the bill over to me. As I said earlier, while I do not have an emotional connection to it, it is certainly—well, a small bill, a technical bill, one that is procedural and will help the jurisdiction and the placement of actions to be more easily processed. I want to thank all of the people and the members that have helped the Justice and Electoral Committee consider it. The two submitters—not four, as the Films, Videos, and Publications Classification (Interim Restriction Order Classification) Amendment Bill had, but two—were very helpful in their consideration of this highly technical piece of law. I also want to thank the officials and the clerks of the committee for helping us with procedure.

In summary, we will be abolishing, should this pass, the double actionability rule and providing a new regime that will make the decision as to jurisdiction to international torts easier, simpler, and more efficient. Thank you.

Debate interrupted.