Private International Law (Choice of Law in Tort) Bill

I am very pleased to rise this evening to speak about the Private International Law (Choice of Law in Tort) Bill and to affirm the Labour Party’s support for the further passage of this bill. Really, we all feel privileged to be here tonight debating this bill, because it was originally under the stewardship of, I think we can say, one of the great reforming legislators of our age, the now Minister David Bennett. The thing you can say about Mr Bennett is that he is probably the guy you have at the vanguard of the revolution, inspiring the masses with fiery oratory, getting the pulse racing and everything, but he probably is not the guy that you have doing the detailed drafting of the constitution.

So while this is, you know, just an absolutely astonishing achievement—pulling this bill through and passing it on to Sarah Dowie—there were a few matters that did need addressing in terms of the text of the bill, which the very, very good Justice and Electoral Committee did pick up. I look forward to speaking about some of those a little bit later on. It is a bill that does enjoy support across the House—on this side of the House, certainly—and my understanding is that the select committee worked very collaboratively to make sure that the bill did address some of the issues that were raised in select committee hearings. My colleague in the House here tonight, Louisa Wall, who was on that select committee, certainly reports satisfaction with involvement in that process.

As Sarah Dowie said, this is a bill that addresses a particular issue in our law. I think in his first reading speech Mr Finlayson said that this is not a bill that is going to fundamentally change our way of life in New Zealand, but it addresses a particular and important issue in our law. That is this issue that we have around double actionability in respect of tort law. Sarah Dowie gave a pretty good explanation of that. It is the issue that we come across when we have multiple jurisdictions, and the questions—again, Mr Finlayson explained this very well in his first reading speech—are: what law applies, and where does it apply? It is those sorts of situations you get where you may be in an overseas jurisdiction, something has happened, there is a question of tort—a question of a wrong that is being done to someone. Do you apply the law from that jurisdiction or from New Zealand’s jurisdiction, and what particular law is it? There is a lot of case law that sits in behind this.

One of the most famous cases, which I read up on a little bit, is the Red Sea Insurance Co Ltd v Bouygues SA—I am not sure how we would pronounce it—which was a famous case that went to the Privy Council in 1995. In that particular case we have a situation where it is unclear whether the particular jurisdiction under which the tort should be heard was Hong Kong or Saudi Arabia, owing to the fact that different aspects of the case took place across those two different jurisdictions. Immediately we can see the particular problem that we have here. The issue is that it becomes complex for the parties. It becomes unsure as to which piece of law we should be applying. A lot of time and legal proceedings can be spent on that aspect that we call—sorry, I have just lost the particular bit of terminology, here—essentially, the clash of legal systems; asking what particular law we apply to this situation, instead of actually dealing with the substance of the case.

What this bill does is move towards repealing double actionability. That is the first of four substantial parts of this bill. The first is abolishing double actionability. That is done in the new clause 10 of the bar 2 bill. That removes the hurdle of having to look at the rules in both jurisdictions. That is actually no small thing, because this has been a piece of common law that has applied for many, many years across countries that apply the common law, stemming out of the United Kingdom. It has in fact been removed by the courts in Australia and Canada, and as an Act of Parliament in the UK back, I think, in the late 90s or early 2000s. We are one of the remaining jurisdictions within the common law jurisdictions that still has this on the book.

Having removed that, you cannot just leave an empty space. So what this piece of legislation does is replace double actionability with a new general rule that says we actually look at the place of wrong. We ask where the tort arose, and that is the place in which we apply the rules. So it is kind of a bit of a “when in Rome”. That will put a new onus on New Zealanders and New Zealand companies and organisations to fully understand the laws and the regulations and the practices in different jurisdictions in which they are operating. So it is a major change to them, and this is noted in some of the legal commentaries. They are going to have to do a little bit more work and will not be able to rely on the fact that they know New Zealand law in the future. So that is important, but we think that it is a sensible approach.

What the bill also does is set in place some rules to determine exactly how we deal with that, and also, in a very sensible way, it does provide an avenue for there to be exceptions to the common rule. That gives the judiciary some flexibility to just make sensible decisions if we need to vary a little bit from that common rule.

I know that all members in this House really want to see members’ bills proceeding with good haste, so I think I will leave my comments, which cover the substantial matters in the bill, there, and I look forward to coming back and making some further contributions in the happy event that we proceed to the Committee stage next. Thank you, and I commend this bill to the House.

I have a confession to make at the beginning of this contribution. When I was first confronted by the Private International Law (Choice of Law in Tort) Bill, I really did not understand what a tort was. That is kind of surprising, because I think I have actually read every novel that John Grisham has ever written, and one of them is actually called The King of Torts, but I cannot quite recall what the book was about. As the old adage goes, if you actually do not know something, hire people around you who do know the things that you do not know—right? So thankfully for me, my executive assistant (EA) is also a fourth-year law student, and so she was able to explain to me—on a number of occasions, I might add—what a tort was. I think on about the fifth or the sixth time through I was starting to understand it. It was certainly not something we did in social work degrees, actually, to be fair, so it was not something I was going to pick up at university.

For a start, actually, for us as at the Justice and Electoral Committee, when we were confronted with this, I think it was really important for us, first of all, to be able to gain an understanding of what it was we were talking about, so then we were able to gauge the importance of it. That may also reflect why, in fact, there were only two submitters on this piece of legislation, because the general population probably thought: “We don’t want to appear just as ignorant as Jono Naylor, so we won’t turn up to actually submit on this bill either.”

That said, with a very good education under my belt from my EA, from other members of the committee, and from our very fine submitters, I now want to speak about this bill, because, actually, as the previous speaker intimated, while it is addressing one very small part of our law, it is actually a very important one.

The purpose of this bill is to establish rules to clarify what New Zealand’s law will be, relating to where cases about tortious wrongs are to be heard, and what law applies. There is one thing that really does not work in the world, and that is when we have legislation that gives rise to ambiguity. At the moment, with the double actionability rule in place, there is some ambiguity about trying to define which law should be applied when there is a tort in play and when it is actually then required—it sets a very high bar, actually, in the current state—for it to be a wrong both here and overseas.

I think it is also clear to point out, and I think I am in a place now to do this after my education, to anybody who is listening, that a tortious wrong is actually a wrongdoing to a person or an organisation, and—in fact, it is only private, civil wrongs. I am already correcting myself. A breach of contract is covered by different Acts, and so is criminality, so I think it is important that we do understand the narrow scope to which this applies.

Obviously, what we are trying to do now is actually address the practical issues that relate to the country in which a private legal matter must be resolved—for example, where the case should be heard and whose law actually applies in a particular circumstance. It is very difficult, if you are a New Zealander and you believe that somebody has wronged you, to simply think that it is somehow against the laws of New Zealand and, therefore, that should apply. Of course, if the wrongdoing occurred while you were both overseas, that then adds a little bit of muddiness to the waters and makes things a little bit more difficult for people to determine how to resolve this. So, as is always the way when we are passing legislation, whenever we can provide clarity rather than having muddy waters, that is something that is well worth doing.

This bill is specifically required for the law of tort, because the types of disputes that arise from torts are generally not governed by written agreements that would specify the jurisdiction that any future action would be decided within. So if it was a breach of contract, for example, you may well have it written into the contract that if there is a falling out or a breach of the contract in any way, shape, or form, the law of Kazakhstan or the law of the US or the law of New Zealand will be what applies. But because torts, and the civil nature of them, do not necessarily apply to things that will have been written down—and already there is going to be some ambiguity—it is important that our law actually clarifies exactly where that tort should be heard and what laws and what jurisdictions will apply.

We are aiming now to have more consistency with New Zealand—

💬 Mr DEPUTY SPEAKER: I am sorry to interrupt the member—and it is tragic to do so—however, it is time for us to adjourn for the dinner break.

Sitting suspended from 6 p.m. to 7.30 p.m.

Now, obviously when we left off with that interruption from the dinner break, I could see so many disappointed faces on the opposite side of the House. Obviously, they were enjoying things so I thought I should come back and finish things off.

💬 Alastair Scott: Start again.

I could start again from the beginning, but I will not do that because I have not got quite enough time to do it all again.

As we said earlier, there were only actually two submitters to this piece of legislation. We were wondering whether it was because people did not necessarily understand what it was about or whether or not it was so cut and dry and obvious that we should do it that nobody felt the need to comment on it. We did have a couple of submissions. One was from the New Zealand Law Society, and again it gave very helpful information for those of us who were novices in this whole area, also particularly from three people—Campbell McLachlan, Jack Wass, and Maria Hook—who highlighted some of the case law that had contributed to this. I do want to pick up on that because I did wonder how we had got ourselves into this situation in the first place of having legislation that we now need to change.

With the indulgence of yourself, Mr Assistant Speaker, and the House, I just want to go back to where it all started, which was, unbelievably, actually in Jamaica in 1870. At the time, in Jamaica, there was a guy called Governor Eyre, who was the governor for Jamaica during a rebellion. Of course, Jamaica was an English colony at the time. Jamaica was operating under martial law at the time. Governor Eyre, in his wisdom, made orders for thousands of people to be flogged. He had activists tried for treason and then had them executed.

The plaintiff who actually then took Governor Eyre to court in this case was, obviously, Mr Phillips, who was one of the victims of these activities—i.e. being flogged and beaten. While Mr Eyre was still in Jamaica, funnily enough for him, legislation was passed forgiving any acts done with good faith to suppress the rebellion. So when he returned, he could not be charged with the tortious wrongs of trespass to the person and false imprisonment. So despite the fact that many leading politicians and thinkers considered his actions to be inappropriate, there was not a lot of choice, ultimately, because it did not line up in the two jurisdictions. This was the starting point for some of these bits of legislation to come into place.

What has happened now is that actually there has been a lot of confusion, as I said earlier, about which jurisdiction would apply for cases in tort beyond that. In recent times Australia, Canada, and the UK have moved to the “place-of-wrong” rule, which is that, actually, these torts are deemed to occur in the place where the event happened. They have dealt with them and now we are catching up. I want to acknowledge that those places—Australia, Canada, and England—used common law rather than legislation to change that, but to tidy things up here in New Zealand, obviously, we are going down the legislative route through the great work of the Hon David Bennett initially, followed up by Sarah Dowie, who, incidentally, has obviously been the chair of this committee.

I guess, to sum up, I want to say it has been a fascinating learning curve for all of those of us who have been involved. To be fair, probably two submissions on it was an appropriate amount because, probably, if we had had to sit through more than that, we may have struggled to get our heads around it all. But we had two very informative submissions that improved our knowledge to enable us, as legislators, now to improve legislation for New Zealand so that we are consistent with our counterparts around the world and can ensure that going forward that private international law—that choices of law in tort—will actually take place under the appropriate laws, and ensure that we get good results.

As this issue has proceeded through Parliament, I have improved my knowledge of the law. I must admit I did not properly understand this when this bill was at first reading, and I still do not pretend to be an expert in the finer detail of the incidence of tort law when there is a crossover of jurisdiction.

As the commentary says, when we talk about torts we are talking about a wrongful act that is not a breach of contract that results in civil liability. So we are not concerned with contract law. We are not concerned with the criminal code. We are concerned with civil liability arising from non-breaches of contracts that are wrongful acts, which are torts.

When this matter comes to the Committee stage I will be asking the Minister to give us an assurance that one of the recommendations for changes in the bill that has been made by the select committee is done properly. That relates to the issue of personal injury. In New Zealand we have a very different system for personal injury from what applies around the world, or in most other parts of the world. In most other parts of the world, if you suffer a personal injury, you have a right to sue for your losses against the person who caused your injury if they were acting negligently. So you have a right in tort to recover your losses for personal injury overseas.

In New Zealand the right to compensation for personal injury is abrogated by the Accident Compensation Act. In return for universal access to accident compensation, including earnings-related compensation, treatment, and sometimes lump-sum payments, New Zealanders give up their right to sue. The ACC system, of course, is not a fault-based system, so you do not have to prove fault. Your entitlement arises from your need according to your injury, not as a consequence of someone else having a liability to compensate you for a wrong. It is true that in respect of workplace injuries overseas there are quite a few non-fault personal injury compensation schemes in operation, but it is also true that outside of the workplace, in most jurisdictions, we still have tort-based liability for personal injury that relies upon proving negligence on the part of the party that caused the injury.

Where this becomes important is if someone is bringing a claim in New Zealand in respect of a tort. This legislation, as is clear from the commentary, can apply to torts. It says: “The bill as introduced does not specify that the bill would also apply to torts committed in New Zealand. To clarify this, we recommend inserting clause 5(4) to state that the bill would apply to events occurring in New Zealand as it applies to events occurring in any other country.” Then they go on to say that if we are going to do that, we have got to make it clear that we are not doing anything in this bill to override New Zealand’s provisions in respect of accident compensation or in respect of personal injury that is covered by the Accident Compensation Act 2001.

The select committee has proposed inserting a clause into this agreement that makes it clear that the applicable law that will be considered in a tortious claim where this is being tried through private international law and it applies to a personal injury, “… the applicable law would be the law of the country where the individual was when they were injured.” So that is intended to cover the situation and make sure that this bill does not affect the operation of New Zealand’s Accident Compensation Act, which, of course, not only provides compensation on a no-fault basis but it also goes further and provides that no one can bring a tortious action for personal injury in New Zealand because it is covered by the no-fault accident compensation scheme.

There is a definition included in this, as reported back, of personal injury, and I think we need to be very, very careful that we are capturing the same definition of personal injury as is covered by the Accident Compensation Act in New Zealand. If it is not identical, then we are going to create legal uncertainty, which is undesirable, and that is something that we should be at pains to get absolutely right. It is actually quite a complex area. In New Zealand, what amounts to a personal injury is not just a physical injury. A personal injury can be mental, physical, or both mental and physical, and it can also extend to death. It can, at times, include infection. You can be accidentally infected in a way that meets the definition of personal injury in New Zealand, and your only right of compensation would be under the accident compensation legislation, if that fell within the definition of personal injury in New Zealand.

So we need to make sure that we have got that correct. I know that this is a member’s bill, and so we do not have the same level of departmental support as we do for some other legislation. I think this is actually a very important detail of this legislation, and I would expect that the member who is in charge of this bill, Sarah Dowie, when this issue comes to the Committee stage, should be in a position to answer detailed questions in respect of this recommendation from the Justice and Electoral Committee so that we can be sure that this change, which is I think a wise change, brings New Zealand into alignment with overseas countries, like the United Kingdom and Australia, and I think someone also said Canada, did they?

💬 Hon Member: Yep.

And Canada. That is a good thing. I do not mind the fact that we are taking a codified statutory route, rather than a common law route. But given that we are, the details of the statutory route that we are taking have to be perfect because we are not leaving as much jurisdiction to the common law courts in order to sort out these details. If we are codifying, the codification has to be perfect, otherwise we will be creating problems.

Conversely, if you leave it to the courts, and you have got the slow development of a common law approach to these issues, then these issues are only dealt with as they arise. So the court cases have the ability to evolve on an iterative basis, and only issues that are central to the case before the courts are determinative for the future. Unless they had a case that dealt with personal injury, they would not be determining where the boundary lies in a personal injury, as defined in the likes of this legislation. The fact that we are codifying it and we are putting a statutory definition in there will bind the courts, and it will mean that the courts do not have room to move if there is an argument that has not been thought of.

I had not thought through that issue of personal injury that, obviously, was thought of by either the officials or the submitters or the select committee itself. They are wise to have thought of it. But we must take great care, given that we are codifying this issue in New Zealand law, therefore taking away the jurisdiction of the court in an iterative way to allow the law to evolve, including that if the facts ever arose relating to personal injury—we must take special care that we do not get that definition wrong.

The bill as introduced does not mention whether parties can enter into agreements choosing the law to apply to tort claims. It is common for parties to international commercial contracts to choose applicable law. You can often read contracts that say that the laws of Hong Kong, or the United Kingdom, or New Zealand will apply, and that can be said in a contract even if the parties to the contract are not from, for example, the United Kingdom. Indeed, it is very common for shipping contracts to include a provision that says that the United Kingdom laws, in respect of maritime law, will apply to a dispute, rather than there being a later battle as to what is the proper—

I am sorry to interrupt the honourable member. His time has expired.

E Te Mana Whakawā Tuarua, tēnā koe. Tēnā koutou katoa e ngā mema o Te Whare Pāremata o Aotearoa. In taking a call in this debate on the Private International Law (Choice of Law in Tort) Bill, I have great pleasure rising to support this bill that was put forward by my respected colleague Sarah Dowie, the member for Invercargill.

I am not a legal expert or even a lawyer, but luckily we have talent in this House in this area, and I would, obviously, acknowledge that of the member who just resumed his seat, David Parker. But I did want to just comment on one statement that the Hon David Parker made in his speech around parties that may choose to contract, particularly in international business dealings, and which jurisdiction and which law would apply in their business dealings. As I say, I am not a lawyer, but my understanding of what a tort is is that it is a wrongful act, other than a breach of contract. I do wonder, as we go through the process and as we discuss it in the Committee stage, if the member may be able to, perhaps, if I am wrong, correct my misunderstanding of what we are dealing with here.

I am genuinely interested in this point, because, obviously, I have had my Arbitration Amendment Bill drawn, which, I think, has some relation to this piece of legislation. Actually, I also have to say that the Private International Law (Choice of Law in Tort) Bill was briefly in the ballot under my name. I think it has been in the process for some time. It was originally introduced, I think, under our friend and former colleague Chris Auchinvole’s name, and then, obviously, under the Hon David Bennett before he joined the executive. But Sarah Dowie has done incredibly good work, both as chair of the Justice and Electoral Committee and sponsor of the bill, in ensuring that the different views are heard on it, and that members gain a greater understanding of what is a somewhat technical area of the law.

I certainly bow down to the legal brilliance of colleagues such as the Honourable Judith Collins, who was a noted member of the legal profession and, I believe, president of the Auckland District Law Society for a term. But with my rudimentary knowledge of the law, I was very interested to observe, as we went through the hearings process, that what we were considering here, in codifying in statute, was a significant change in how private international law jurisdictional issues would be addressed. It represented a departure from something like 800 years of development of the common law. Being a traditionalist, I am very hesitant to see any departure from something that has so carefully and in such a considered way developed over 800 years. But the concept that we are moving to—from double actionability, which is the ancient concept, to this bill, which provides for lex loci delicti commissi, which is that the law of the place in which the harm or wrong was committed should apply—is itself not a new concept.

I believe that lex loci delicti came about in the United Kingdom as a legal concept in the 19th century, and, as has been discussed by other members so far in this debate, jurisdictions, such as the United Kingdom and Australia, already apply the principle of lex loci delicti, instead of the previous double actionability, in order to provide greater clarity to, particularly, those operating in the international business sphere; although not restricted solely to that. I believe my colleague Jono Naylor, the list member of Parliament from Palmerston North, had a very interesting case that was not strictly a modern commercial dispute.

But, actually, the abolition of the role of double actionability and the establishment of a general rule—that the applicable law is the law of the country where the events constituting the tort occurred—is, in my view, a useful development; although, as has been mentioned, there are areas where we do need to explore the detail, to ensure that we as a House are doing the right thing in, effectively, rewriting 800 years of common law development. So it is more obvious in a case of property issues, for instance. If your property is damaged, it is pretty straightforward to understand what the property is, what the damage was that occurred, where it occurred, and then apply the relevant local rules and legislation to that case.

As has been canvassed in the debate, areas such as personal injury are somewhat more difficult to understand, and to provide, I think, comprehensive legal provisions for that will provide great certainty in all such cases of personal injury. So if we look at the Accident Compensation Act 2001, there are a couple of components to what might constitute an accident. It was very interesting that the Hon David Parker referred to certain forms of infection as constituting an accident or an accidental injury. Of course, most diseases, most medical conditions that are not the result of the application of external force causing harm or injury—such as a broken leg, or even, actually, a millipede bite, believe it or not, constitutes an accident in terms of the Accident Compensation Act 2001. When someone may have, for instance, been infected due to medical malpractice, due to unclean—

💬 Hon David Parker: Ginger beer—Donoghue and Stevenson.

Ah, yes! Donoghue and Stevenson—of course, being an experienced lawyer, the Hon David Parker would know that case. I think I studied that in first-year law at Otago University with Professor Mark Henaghan—I think in the introduction. Yes, the snail in the ginger beer. So personal injury can be caused by something other than merely a physical accident, like, for instance, some negligence on the part of a tour company that may lead to a severe sunburn and then a skin infection that could result from that severe sunburn. It could, of course, be something far more sinister, such as someone knowing that they have a contagious and serious disease and not taking proper precautions—prophylactic precautions—to prevent that being passed on to another person, and in some jurisdictions that would—

💬 Chris Bishop: What sort of measures?

Prophylactic measures, Mr Bishop: protections—being safe. So, in some jurisdictions, that would constitute more than just an accident resulting in injury but an actual assault on another person. So I actually think it is right and proper that the remedies that would be available to the person if they did not take the proper—if the person who committed the tort against them did not take the proper prophylactic protections, the remedies that are available in that jurisdiction should be available to the person who has suffered the tortious damage. As the member across the aisle has commented, mental injury does need to be considered.

So I think it is absolutely appropriate that when we consider this bill, we have made a recommendation of amending the current statutory bar on personal injury claims in section 317 of the Accident Compensation Act 2001. We think it is desirable to amend clause 7 to state specifically how the bill would treat personal injury. Our proposed insertion of clause 7(2)(aa) would make it clear that the applicable law in these cases would be the law of the country where the individual was when they were injured. We also make a couple of consequential suggestions of amendments to clause 7(3), which provides a definition of personal injury and expands that to include the mental injuries of the sorts that have been discussed—diseases and infections.

So there is another interesting question, which we did discuss in the select committee, and it was actually quite an electrifying discussion, I have to say. Some people might find this a rather dry area of the law, but the distinction between substance and procedure was raised. So in clause 11(2)(b), which specified that the questions of procedure are to be determined according to New Zealand law, we thought it was desirable that, in these cases, the distinction between substance and procedure should be allowed to evolve over time. We live in an electronic age when one may be able to, in due course, conduct one’s litigation electronically, for instance, and so we recommended inserting clause 11(3) to clarify that the courts will be able to further develop the distinction between substance and procedure through case law over time. This is a very good bill, and I commend it to the House.

I am pleased to take what will be quite a short moment to speak to this bill to express, firstly, that the Greens will be supporting this bill in its passing through. I have to say, this, to me, is a bill that only a lawyer could love. We have heard words like “fascinating” and “electrifying”. Sadly, I do not quite share the passion for bills like the Private International Law (Choice of Law in Tort) Bill. Nevertheless, that is not to say it is not a worthy bill; we know it is a necessary piece of legislation. We know this because the two submitters told us so at some length.

The Law Society and the three learned academics who did submit to the bill were not modest in their contribution, but I am sure it was very helpful to those with a much better grip of these matters than I enjoy. I was interested to hear that even the Hon David Parker learnt something in the process of this bill. I also learnt a few things watching this bill go through the select committee, but my starting point was somewhat closer to Mr Naylor’s: being unsure exactly what a tort was. Had I seen the word in a trivia quiz, I might have thought that perhaps it was something you would see in the window of a German bakery or some such, but it proved not to be the case. I now know better than that. I did have the advantage—not unlike Mr Naylor—of having a senior executive assistant with a law degree, and he was able to enlighten me about the basics of this matter, at least.

I thank Mr Foster-Bell for telling us that Chris Auchinvole first introduced this bill. With all due regard to Mr David Bennett, I was struggling to associate a fairly dry, technical legal bill with our learned friend Mr Bennett. It just did not seem to be his territory. Associated with our former colleague Chris Auchinvole, it does seem to make a great deal more sense.

It has been a learning opportunity. I can now speak with a level of confidence about double actionability and other exciting matters. It has been an interesting process. I think, in all seriousness, any piece of legislation that seeks to clarify and simplify law, to remove ambiguity, has got to be a good thing. Particularly, the Law Society and the academics who contributed were quite keen on the fact that we are aligning our legislation with similar jurisdictions—the UK, in particular. So, on their good advice, as I say, the Greens are happy to support this legislation.

I too am going to take only a very short call on this particular bill, important though it may be in its own right. I really have only three comments to make. The first is that I do want to commend my colleagues on the Justice and Electoral Committee for the attention they paid to this bill and in preparing it for the second reading. I think it is a job well done on their part.

Secondly, I want to make it perfectly clear that New Zealand First has no issue with the content of this bill itself. It is quite clear that the codification and clarification of the law in the way this bill does is well worthwhile and is something that has been needed for some time. As David Clendon said, it will mean that New Zealand will catch up with similar jurisdictions. So I do not have any particular issues to raise with regard to the technicality of the bill.

Nevertheless, I do want to explain, thirdly, why New Zealand First will still be voting against it. The reason is simply this: we do not want to reward the Government for not making this a Government bill. That is what it should have been: a Government bill and not a member’s bill. Those opposite may think this is not an important point, but we do think it is an important point, and it is important because the spaces available for genuine members’ bills should not be taken up in the way that has been done with this bill. This bill is quite clearly, by its highly technical nature, a bill that should have been brought forward by the Government itself as a stand-alone bill with the full force of the advice available from Government departments to assist the select committee and the Parliament in assessing and dealing with a matter of this complexity. It is just not a suitable subject for a member’s bill.

When it comes from a Government member, they ought to know that a bill of this kind should be brought forward as a Government bill and not as a member’s bill. For that reason only, New Zealand First will not reward the Government by giving our votes in favour of this bill even though we have no issue with the content of the bill itself. We shall be voting against it for that reason, and that reason only.

For the second time this afternoon, the New Zealand First Party has decided to be churlish, I have got to say, and vote against a bill that its members actually acknowledge is a good bill—including, in particular, that last case. For reasons best known only to their caucus, or perhaps to Winston Peters, they have decided to vote against it.

That was a wholly hopeless contribution from Mr O’Rourke, and it is actually a bit distressing. Mr O’Rourke is a member of the Justice and Electoral Committee and most of the time makes very worthwhile contributions on the committee, including on some quite tricky matters—including, might I say, on some technical matters. His objection to the bill we are debating was that it is a technical bill. His conclusion from that was that it should therefore be a Government bill—except the House is perfectly capable of dealing with technical bills before it that are members’ bills, just as select committees are.

The process that this bill has gone through, in the name of my good colleague Sarah Dowie and some of our other colleagues before that, is no different from any other process that a Government bill would go through. It is drafted. It goes to a select committee. There is expert advice provided by groups like the Law Society and legal experts, and we also have the benefit of the Ministry of Justice officials to provide advice. The argument that because it is a technical bill it should therefore be a Government bill makes no sense whatsoever.

Members opposite often complain, on members’ days, about bills in the names of Government backbenchers. It seems to me that their basic argument is that the Government backbench should have no members’ bills, because it takes time away from, in their words, legitimate bills that they propose. It takes time away from legitimate bills like the Child Poverty Reduction and Eradication Bill, in the name of Jacinda Ardern, which is literally a 6-clause bill that just sets up an agency to set targets—that is literally all it does; or the gay adoption bill, in Jacinda Ardern’s name, that proposed the Law Commission write a bill for her, which the Parliament then had to unconstitutionally adopt at first reading; or Iain Lees-Galloway’s trite and simplistic and symbolic bill around the thresholds. I think members really cry crocodile tears here, when they turn up and say that Government backbenchers are not entitled to members’ bills.

The ASSISTANT SPEAKER (Lindsay Tisch): Can we just come back to this bill. It is interesting, but come back to this bill.

I take your point, Mr Assistant Speaker. I was just responding to some of the silly remarks made by Mr O’Rourke.

This is a good bill, and, actually, members of the Government are entitled to propose bills that are useful. They are entitled to propose simple bills that make important reforms. The bill we were debating just before this one, a bill in my name, makes a substantive contribution to free speech. A bill that I previously advanced will help to raise organ donation rates in New Zealand. There are lots of other examples of good Government backbench bills that have come before the House.

💬 Carmel Sepuloni: What does this bill do?

I am getting to that, Miss Sepuloni. What I want to talk about is, firstly, what this bill does and, secondly, why it is important and why it is a good bill. When we are dealing with tort—and I acknowledge what the previous speaker said, about thinking it was some sort of French pastry. But tort is actually derived from the French word for wrong, and it relates, basically, to private disputes between persons. It is a bit complicated in New Zealand because of the existence of the Accident Compensation Act and our long history of no-fault insurance for accidents, but we do still have the law of tort in New Zealand for negligence, nuisance, defamation, things like that. Defamation has been in the news a bit recently, for reasons that members from both parties will know about. That is also a tort. A lot of people think it is some sort of criminal wrongdoing, but it is a civil remedy and is, in fact, a tort.

The rules regarding how you deal with cross-border torts—when a company does something to another individual in another country, or vice-versa—can be very tricky. Basically, when you are dealing with that, the courts in countries deal with three different issues. They decide whether or not the New Zealand courts can hear the case, they choose what law to apply, and then they apply the chosen substantive law. This very useful bill is concerned with the second of those issues—choosing what law to apply. What the bill does, basically, as Mr David Parker mentioned previously, is codify as a general rule of New Zealand law that the law applicable to a tort will be the law of the jurisdiction in which the events constituting the alleged tort took place. So if a New Zealander or a New Zealand company is subject to a tort in, say, Australia, the law that will apply in that particular case is the law of Australia—the tort law relating to Australia.

There are differences in the common law between different countries, and so it is very important that we figure out what law will apply. It will be where the tort actually took place. What the bill does is abolish what is called the double actionability rule, which allows a New Zealand court jurisdiction over torts that occur outside New Zealand but only where a claim would lie under both New Zealand tort law if the act had been done in New Zealand and the civil law of the country where the act was done. It is quite a complicated issue, and because it is so complicated it has been subject to a lot of criticism in the academic commentary over the years. This bill does away with it. So that is what the bill does, to answer Miss Sepuloni’s question from just before.

Why is this important? Well, it is important for the reasons I have already adverted to a little bit. It is important because, increasingly, New Zealand companies and New Zealand individuals are travelling, we are doing business overseas, and there is a lot of multinational commerce that goes on. So New Zealand companies doing business in foreign countries should be interested in this bill. I suspect 99.9 percent of them have no idea that it is going through the Parliament, but actually, in the unlikely event that they are subject to a tort in an overseas country, then they will be impacted by this bill and it will be useful and of importance to them.

The other group that will be interested is foreign companies doing business in New Zealand. Again, perhaps that is why New Zealand First is voting against the bill—it does not like the whole concept of foreign companies being based in New Zealand and doing work, and employing New Zealanders.

💬 Hon David Bennett: Are they voting against my bill?

David Bennett asks whether New Zealand First is are voting against the bill—yes, it is. For the second time this afternoon, everyone in the Parliament is going to vote for a bill, but for reasons, basically, of spite and churlishness, New Zealand First members are going to vote against it. Denis O’Rourke even admitted that they have no objection to the bill, and some of his remarks in his speech even complimented aspects of the bill. But for reasons best known only to themselves, New Zealand First members have decided to vote against it—very depressing.

So that is why the bill is important. Thirdly, why is it a good bill? Why is it relevant? Why is it significant? Well, the first reason is that it simplifies the law relating to cross-border torts. I do not want to say it makes it massively simpler, because this is a very tricky area of the law and it is one that is, almost by definition and by necessity, a complicated area. But it does make things simpler, as I said, by getting rid of that double actionability rule. As I said before, the academic commentary on this is pretty clear. This proposal to get rid of double actionability is supported by the legal profession and supported by experts in the field.

The second reason, and this probably the more important reason, is that it does bring New Zealand law into line with other countries. There are a number of countries that have already done this. New Zealand is, in some ways, a bit behind the eight ball when it comes to this issue. Australia has moved to this. Canada and England have moved to this. They have moved to what is known as the “place-of-the-wrong” rule—in other words, you apply the law of the country where the tort was committed. This bill has been widely welcomed by the legal profession, and therefore I think it is something that the House, with the exception of New Zealand First, will support.

There are a number of changes that we made at the select committee. I am a member of the Justice and Electoral Committee and, my word, we have been a busy committee in the last few months. We have been dealing with the family and whānau violence legislation, we have been dealing with Jan Logie’s bill to do with domestic violence leave, we have been dealing with my bill relating to censorship, and I think we have got Mr Foster-Bell’s arbitration bill before us as well. We have got a lot of business to get through, but we did make time to do this bill—to hear submissions on it and to go through it.

We have made some changes to the Crown Proceedings Act sections, so clause 4 of the bill states that the Act will bind the Crown. The Crown Proceedings Act is the Act that contains rules relating to the Crown’s civil liability, and, of course, it would usually apply to tort proceedings involving the Crown. To remove doubt, we have recommended amending clause 4 to make it clear that nothing in the bill would limit or affect the application of the Crown Proceedings Act to any claim in tort by or against the Crown. That is a removal-of-doubt clause. Arguably, you could say it is not necessary. We have decided to put it in. I think there was a submission from a submitter—whose name escapes me—suggesting we do that, and we have decided to do that.

We have made a number of other minor changes to the bill, which I am sure my colleagues will be canvassing in their contributions to the House tonight.

💬 Hon David Bennett: Tell us about them.

David Bennett says “Tell us about them.”, but I am running out of time so I will leave it to my colleagues Todd Muller and Maureen Pugh to make points about the changes the committee has made.

This is a good bill. It is going to be supported by all but—basically, a majority of the House, and I commend it to the House for that reason.

I am sorry to interrupt, and I do apologise that I was so engrossed with what the member was saying, I forgot the 2- minute bell. But I did learn a lot.

I am pleased to take a call on the second reading of this bill, the Private International Law (Choice of Law in Tort) Bill. This deals with a very—I suppose it is a complex area of law. If I think back to my days in law school, tort—yes, it can be difficult to grasp. Essentially, if you are wronged personally, the act of being wronged other than when you are in a contract has been established through common law—through judge-made law. The torts have been established through the courts, and that is, basically, the origins of tort law—it is all judge-made—and here we are just clearing up some legal uncertainties that are unnecessary and that could be very costly, particularly to parties going before the courts. So we are trying to expedite those processes by making sure that it is very clear which jurisdiction applies when a tortious act occurs across multiple jurisdictions with various international parties.

This is a sensible piece of legislation. Based on the number of submissions—from the Law Society and a law professor—I guess it will be talked about among the law community, and I am sure it will come in handy for certain parties when a dispute does arise.

I was thinking about what is a typical scenario of a potential tortious act that may fall under this piece of legislation. I guess I was thinking about Jono Naylor earlier, who was giving some self-promotion about his performance in a band. He was in a band. He was a keyboard player and a vocalist for the band Truly Made with their one-off hit, “For the Summer”. Mr Naylor kindly distributed that song to Kris Faafoi and me over the dinner break, and I had a listen. I had a listen to Mr Naylor and, you know, it is not a bad tune. It is not a bad tune. It has got a bit of a sun-drenched, reggae-type beat and some pretty good vocals, kind of like Steely Dan meets the Wailers in some sense. But I could hear Jono doing those nice syncopating keyboard stabs, as you do on a reggae tune, and so he really held it down. Yes, it was a very nice tune.

Upon listening to that I could not find any—I was not aggrieved, there was no tortious act that I was injured from, from listening to that tune. But then again, Mr Naylor mentioned Jamaica. He mentioned Jamaica in his contribution, and I was wondering, well, what the folks in Jamaica—the origin, I guess, of reggae music—would think if they heard Mr Naylor’s tune, which is this sort of reggae-type tune. Who is to say? The people in Jamaica may well feel aggrieved. They may well feel that there was a tortious act and that they were injured. There could be some sort of injury upon listening to Mr Naylor and this sort of pop version of a reggae-type tune that Mr Naylor was involved in, and so which jurisdiction would apply? Where was the injury—where did the harm occur? Would it be in Jamaica? Would it be in New Zealand? Who knows?

But this is the reason for this legislation. It is to establish very clearly which jurisdiction applies, which is where the tortious act actually took place, and so that will, hopefully, clear up those sorts of potential disputes. Remember, the example I am giving is not—you know, who are we to say what the extent of the law is, because tort law is judge-made law and it is still evolving, and who is to say that there might not be some sort of harm that is created in the future by the example that I have just given. That was just one example.

The other point I wanted to make, just to give another example—one that is, I guess, quite close to home—is about the tort of invasion of privacy, or protection of privacy. Consider the example of an electoral agent in, say, an office like Gore in Clutha-Southland who is potentially aggrieved through the covert installation of—who knows—a listening device or of a recording device. That could potentially give rise to the tort of invasion of privacy.

💬 Hon Ruth Dyson: Unless they got paid out. Unless they got hush money.

Unless they got hush money, indeed. But that is another layer of—potentially, another legal wrong that has been committed. So in that scenario, yes, sure. Perhaps that electoral support agent, or whichever employee it was, was offshore in another jurisdiction—say, Jamaica—working. Someone was working in Jamaica and a covert listening device was installed in the jurisdiction where that person was working, but the instructions were given by, perhaps, the supervising member of Parliament to a firm. Who knows? But there was the installation of a listening device covertly recording private conversations, and so, again, this legislation would be applicable in that situation.

I just wanted to give these examples of where this bill may be applicable in terms of the jurisdiction that would apply where a tortious act is committed. We are looking at a range of tortious acts. Of course, in the international sphere we are looking at economic harm—economic harm to businesses, I guess, primarily, with these cases. But, you know, accessing the courts, engaging lawyers, court fees, the adversarial process—all of that is largely beyond the scope of little private disputes. In the international cases, it will involve major businesses and corporations, and so they will benefit from having a bit more certainty in terms of the process that they are following when they are deciding to engage in a cause of action to sue another party.

So, yes, I do stand in support of this bill. I commend Sarah Dowie from Invercargill, which is very close to Clutha-Southland and is also part of Te Tai Tonga, for bringing this bill to the House. I am sure that it will provide clarity for those very technical and complex legal issues that will arise in future around tortious acts, around which jurisdiction will apply and how the legal proceedings will carry on there. So I commend this bill.

It has been quite an entertaining reading of the Private International Law (Choice of Law in Tort) Bill. I think it is always a good indication of how desperate we are for material when we start talking about reggae as part of international choice of law in tort. This bill here is in the name of Sarah Dowie, the chair of the Justice and Electoral Committee, and was first read in this House by the now very honourable David Bennett. As we learnt earlier today too, Mr Bennett is the first Cabinet Minister from Hamilton in 33 years—so a proud moment for that electorate, I imagine. A fine achievement indeed, it is. Also, I learnt tonight that this bill was first introduced into this House by the former member for West Coast - Tasman Chris Auchinvole. A fine, upstanding gentleman he is, as well. I imagine that he would have relished the opportunity of speaking to this very interesting bill himself.

But I have to say I agree with my colleague David Clendon tonight. When I first started dealing with this bill at the Justice and Electoral Committee I was challenged. I, first of all, could not work out what on earth a tort was and for me, Mr Clendon, it sounded like something you would put in a pie dish and bake and serve with cream. But, actually, a tort is a wrongful act that results in civil liability, but, of course, as we have heard tonight, it does not apply to contracts.

In common law jurisdictions it is a civil wrong that unfairly causes someone else to suffer loss or harm that results in legal liability for the person who commits the tortious act. The victim of the harm can recover their losses as damages in a lawsuit, but in order to successfully take a case the plaintiff in the lawsuit, commonly referred to as the injured party, must show that the action or lack of action was the actual cause of the harm, and that has to be able to be legally identified as the cause. If anyone was wondering what the person who commits the act is called, they are called a tortfeasor—for reference.

When an action is brought in New Zealand, in a New Zealand court, for a tort that happened outside of this country, the common law rule of double actionability applies. We have heard a lot about that tonight. So what does it mean, some may ask. It means that when a tort is committed outside of New Zealand the tort claim is successful only if it is actionable in both the New Zealand jurisdiction and the country where the tort took place. So the plaintiff must establish that the tort would have been actionable in New Zealand if it had been committed here, and that the tort is actionable under the law of the country in which it was committed.

If both of those are satisfied, then the court applies New Zealand’s law to the substance of that claim. But it does get complicated when one country has a more significant relationship with the event that led to the tort and with both parties involved, in which case the substantive law of that country can be applied to the complete exclusion of the other law. An example of that situation could be where a New Zealand employee is, say, working overseas and suffers an injury due to the negligence of the employer in creating an unsafe workplace. So if it is the law in the country where the event took place, is it New Zealand law, or perhaps the country where the injury took place—so the law applies from that country—or if the employee was to sue, say, the parent company of that employer, which may actually be residing in Australia, which law would apply? So it does get very confusing, and this bill does clarify this.

We were told by submitters, of whom, we have heard, there were only two, that there is a huge consensus for the double actionability rule to torts claims to be removed. It is agreed that it was outdated and no longer fit for purpose. It has been abolished in the United Kingdom, in Australia, and in Canada. So this bill removes that double actionability, and this aspect of the bill was supported by the New Zealand Law Society and other submitters.

The Private International Law (Choice of Law in Tort) Bill is very similar to the UK Act, which was seen by the New Zealand Law Society as providing a very valuable resource in creating a body of case law that is accrued in the United Kingdom. So that will help with the interpretation and the application of the law here in New Zealand.

We did rely very heavily on the legal advisers to the Justice and Electoral Committee. It was a very technical bill, and it did require the expertise of those legal minds to guide us through the process.

I thought I would share with the House tonight one of the most famous tort law suits that has happened in recent history, and it was the case of a 79-year-old woman who sued McDonald’s when she spilt her coffee and was burnt. So the 79-year-old woman, Stella Liebeck, spilt a cup of McDonald’s coffee on her lap and sustained third-degree burns and, as a result of that, Mrs Liebeck had to have skin grafts. So she had quite a lot of recovery and healing to do. And when she went to McDonald’s and asked it to cover her medical bills, it declined. So Mrs Liebeck filed a civil lawsuit. It was found during the case that McDonald’s had been negligent because it had received thousands of complaints from other customers about the temperature of its coffee, yet it had continued to instruct its staff to serve the coffee at this high temperature. So when Mrs Liebeck was burnt, she could prove that McDonald’s had been negligent because it was aware of the potential harm of the temperature of this coffee. In the end, Mrs Liebeck was awarded damages—$200,000 for her medical bills and then $2.7 million for punitive damages. That was later revised down to $640,000, and then appealed and it was settled out of court.

But the point of this is that had Mrs Liebeck been a Kiwi on holiday in the United States, then she would have had to prove that there was a duty of care owed to her by McDonald’s, and that she had suffered actual loss, injury, or damage that was directly caused by McDonald’s negligence, which she obviously did. Under this bill, wherever the events occurred, that is the applicable law or, in the event of damage to property, it is deemed to be the country where the property was located. So if Mrs Liebeck was an American on holiday in New Zealand at the time of the incident, the ability to apply a tort law is severely curtailed because of our Accident Compensation Act.

So, in summary, actionability is in the place where the damage was done. If something happens in New Zealand, it is dealt with under New Zealand law. If it occurs in another country, it is that jurisdiction’s law that will apply. This bill aligns us with similar jurisdictions internationally, and, therefore, simplifies the law. I commend it to the House.

Tēnā koe, Mr Assistant Speaker. I am going to be very brief. I am a member of the Justice and Electoral Committee. We are, as a Labour Party, supporting this piece of legislation. So I do want to congratulate Sarah Dowie, in whose name this Private International Law (Choice of Law in Tort) Bill has been submitted—well, who now has responsibility for it; it was initially submitted under the name of the Hon David Bennett.

I just wanted to note that when I spoke at the first reading, I purported that there would possibly be hundreds of submissions and, in fact, we had two. But, in saying that, I do have to commend the quality of those submitters. They were the New Zealand Law Society, and also Professor Campbell McLachlan QC, Jack Wass, and Dr Maria Hook, from Victoria University. Almost all of their recommendations have been accepted by the select committee.

I want to highlight, as they did in their submissions, that the bill largely adopts the scheme and language of Part III of the UK Private International Law (Miscellaneous Provisions) Act of 1995. The only thing, really, to add is that the Law Society, in particular, highlighted that that law, given it has been operating since 1995, will be helpful in providing recourse to a body of case law to assist with the interpretation and application of legislation in New Zealand.

There is not really much I can add in terms of the commentary that we have heard tonight. I think we are going to have an interesting Committee stage debate, and I think I will leave my definitions and further contributions to this bill until that stage. Thank you.

Mr Assistant Speaker—

💬 Michael Wood: Quality, not quantity.

Oh, one can do both. Look, thank you for the opportunity to say a few words on the Private International Law (Choice of Law in Tort) Bill in its second reading. Well, this is dry stuff, I would have to say. As someone who was not on the Justice and Electoral Committee and as someone, as you can probably tell, who is not a lawyer, it has been quite a mission of resilience for the last hour and a half to 2 hours as we have debated that, and—even though the Assistant Speaker is going to tell me to sit down—can I just acknowledge the Lions supporters in the gallery for having the resilience to stay with us. What an extraordinary effort. I can assure you that the New Zealand Parliament has more vibrant days and vibrant debates than this, but occasionally we are drawn to very engaging, technical debates that certainly can be a bit dry. So I am delighted to be able to speak for a few minutes on this bill.

I acknowledge the Hon David Bennett from Hamilton, who took this particular bill forward initially, and now, of course, it has been passed to my good friend and colleague Sarah Dowie. But, thinking of David Bennett and the good city of Hamilton, a very good friend of mine, the late, great Sir Ross Jansen, was the mayor—I knew him in my university days, and he strongly advised me that I should be a lawyer. I have a sense that he would be very impressed to know that, all these years later, I am standing here, holding a view in respect of something as intriguing as torts.

But, anyway, as we have heard already from all of the speakers, a tort is, essentially, a private dispute between persons, and what we are doing here is providing a solution or a simplification, along with the similar jurisdictions of Australia, Canada, and England, to codify as a general rule that the law applicable to the alleged tort will be the law of the jurisdiction in which the events constituting the alleged tort took place. Actually, very much as a layman to this particular issue, that seems to make a heck of a lot of sense, and one wonders why it has taken so long, across the various jurisdictions, to get to what appears to be quite a simplistic and a simple and a sensible solution. The current model that exists, until this bill passes, of double actionability has been described in the words of one Australian author as notoriously difficult to understand and apply, and, based on having listened to the various contributions over the last 2 hours, I think that is a very fair assessment, not only of the historic case but, potentially, even of what is proposed as a solution. But then, you know, I am not a lawyer, so others may well see the compelling logic of it more clearly than I do.

What I would like to do is just specifically talk to, I guess, the three key clauses that underpin this sensible change. The first is clause 7(1), which establishes the “place-of-wrong” rule, in which the applicable law is the law of the jurisdiction in which the events constituting—that is a hard word to say; “constituting”—a tort has occurred. Secondly, clause 7(2) provides rules to determine where a tort can be said to have occurred where the events have occurred in more than one jurisdiction, which is a critical component because sometimes, depending on the nature of the dispute, it is over multiple jurisdictions. Then, of course, clause 8 provides for an exception to the “place-of-wrong” rule, allowing the court to apply the law of another jurisdiction where it is substantially more appropriate to do so.

It was interesting to hear that there were two specific and quite comprehensive contributions from submitters, and I am not going to step through that in any particular detail.

Look, I could go through here every one of the changes that the select committee made—

💬 Chris Bishop: Oh, I said you would.

Yes, I know you did. But I think, in due deference to those watching and to those observing, and I wish them good luck for the second test—

💬 Hon Member: You don’t really mean that.

—generally, good luck—can I commend the bill to the House and I look forward to the vote, which should be unanimous. But, as my learned colleague Chris Bishop said, it is very disappointing when a party whose members stand and say that it is a good bill and stand and say that it is technically the right solution to address a problem that exists, will then stand and say that they will vote against it because they do not think it is appropriate for the Government backbenchers to be able to put a bill up on a day like this. I think they can do better than that, and they know they can. I commend the bill to the House.

Bill read a second time.