Private International Law (Choice of Law in Tort) Bill

This is debate on clauses 3 to 4, and schedule 1.

Thank you for the opportunity to speak on the Private International Law (Choice of Law in Tort) Bill, which was originally brought in the name of the Hon David Bennett, who then decided to pass it on to me. I often say that while I am not emotionally attached to this bill, it has grown on me. We have heard, in previous debates, about small, technical, but very effective bills, and this is, in my opinion, no different.

In discussing Part 1, with regard to the preliminary provisions—clauses 3A, 3B, and 4—I note that clause 3B, of course, sets out the interpretation. It defines applicable law, claim, and country. This relates to the substance of the bill, in that this is about tort law, of course. Tort is a civil wrong. Tort has been established over many, many years of common law and jurisprudence. It relates to those civil wrongs such as defamation, negligence, and, of course, personal injury. I note from the second reading speeches that I do have some questions to answer with regard to personal injury, so I will get to that in the debate on Part 2, the more substantive provisions of this bill.

We have dealt with a claim and the jurisprudence behind tort, but what this bill does in respect of the interpretation clause, clause 3B, with the definition of “country” is that we start talking about the jurisdiction of where a tort occurs and where a claim can be brought. So we are talking about a country in the sense of private international law, and what this bill does in substance, which relates back to that definition, is that where a tort or an injury occurs overseas what is happening here is that the rule of double actionability is actually being disposed of. So if a tort occurs overseas at the moment, a plaintiff would need to apply to the New Zealand court, and they would be heard only if the jurisdiction where that injury or tort occurred had similar rules, and then the plaintiff could actually bring the tort in New Zealand.

The double actionability rule is being disposed of, and in it its place we will be looking at the claim for the tort being brought in the country in which the tort occurred. So it is an important definition there, under clause 3B, and you can see that it relates very much to the substance of this bill.

The term “applicable law”, of course, means the law to be used for determining issues relating to the tort, and, again, that goes to the jurisdiction. We need these clauses going towards the interpretation of tort law so that we understand exactly where the tort occurs, which jurisdiction applies, and how that claim will be dealt with, moving forward.

The purpose of this bill, of course, as I have described, is, under clause 3: “to establish rules for choosing the law to be used for determining issues relating to tort.” It is very important to do that. It has been confusing in the past when bringing tort claims across jurisdictions. This little bill, while technical, will make a real difference in respect of tort law, moving forward. It is a pleasure to be the member in charge of this bill.

It is a pleasure to rise and take a call on the Private International Law (Choice of Law in Tort) Bill. It was an interesting second reading debate, actually, on this issue. I was particularly enamoured with what the member Rino Tirikatene had to say, because he devoted so much of his speech to talking about me that it was just, you know, kind of quite flattering, really. Obviously, at this Committee stage I want to limit this contribution to the issues contained within Part 1, that being the preliminary provisions.

It has been an interesting learning curve for a number of us, actually, even getting our heads around what torts actually are—for those of us who are not legally trained. Clearly, what has really been going on is that, with this double actionability, there needed to be some revision, because it was becoming increasingly difficult, obviously, for people to be able to take action for things that had happened outside of New Zealand.

I think the interpretation of this is clearly very important. If we look under clause 3B, it is important that we get absolute clarity on what we are talking about, in terms of the jurisdiction that is in play. It would be quite easy for two New Zealanders who might have been overseas, for something to occur overseas, and for them to then try to say that there had been a tortious act committed, but, actually, it might be contravening New Zealand law, but not necessarily the laws of the country in which they were at the time. So there would be some confusion, I think, about whether or not a claim could be made.

What we have now is that actually it is important that in clause 3B we get this term “applicable law”, meaning “the law to be used for determining issues relating to tort”. And, of course, the applicable law in this instance is that jurisdiction in which the action or the injury took place—where it actually occurred. It is useful, at this stage, to have those clarifications. “Claim” clearly means “a claim in tort”, because it is the Private International Law (Choice of Law in Tort) Bill. All the claims referred to within this legislation will be in relation to a tort, and not in relation to anything else. So it is good to have that spelt out, right at the beginning of the bill, so that people can have a clear understanding of what is in place.

Under clause 3B the term “country” is an interesting one. That word, in itself, clearly has different meanings. Often we will use the word “nation”, we will use the word “country”, and we will use the word “jurisdiction”. The word “country” sometimes is used in terms of the definition between town and country. But I think it is really important that again we are talking about this in the context of this bill, so that “country” does mean “a country in the sense of private international law”. It has got to be cleared up, so that when these claims are made, people can be very clear about what jurisdiction applies, where the act occurred, and what has gone on, and the lawyers and judges involved can be very clear on what process they need to do.

Finally, clause 4, in Part 1, is about the Act binding the Crown. Again, sometimes people think that the Crown is somehow above the law. Again, it is useful for this to be spelt out, that this is, in fact, actually binding on the Crown—that if somebody believes that they have been wronged by the Crown, they still have an ability to take a tort out, with regard to that.

So, again, clause 4(2) states that “Nothing in this Act limits or affects the application of the Crown Proceedings Act 1950 in respect of any claim in tort by or against the Crown.” Of course, while I have said that it is binding on the Crown, in case somebody believes the Crown has wronged them, it is also binding on the Crown, that if the Crown believes it has been wronged, it also can make a tortious claim under this bill.

I look forward to further parts, where we get into a bit more of the meaty stuff of this bill. I look forward, as we progress this through the Committee stage, to taking further calls with regard to that.

I have pleasure in standing to discuss this Private International Law (Choice of Law in Tort) Bill in its Committee stage here tonight. The bill is in the name of the chair of the Justice and Electoral Committee, Sarah Dowie. As we know, the bill was first introduced by the now very honourable David Bennett.

Tonight we are discussing Part 1, which covers the preliminary provisions of this bill. We are talking about clauses 3, 3A, 3B, and 4(1) and (2). For clarification, just to clarify it for those who may be confused about what we are even talking about, a tort is a wrongful act that results in civil liability but it does not apply to breaches of contract. 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 transitional, savings, and related provisions are set out in schedule 1 and they, of course, have effect, according to their terms. But I would like to just point out some of the confusion that arises with tort law and why this bill is necessary for clarifying the jurisdiction for the case. For instance, if a couple is married overseas, in an overseas country, and they come to live in New Zealand and want to get divorced, what is the country that the law applies to and where is that case able to be heard?

The applicable law that is set out in clause 3B, in the interpretation clause of this bill, defines the law to be used for determining the issues relating to tort and the claims in tort. We have a very famous claim of tort law, which I have used in other readings of this bill, that sets out very clearly where the liability for certain cases lies. Of course, that is further simplified here, in New Zealand, with our ACC legislation.

As my colleague Jono Naylor has pointed out, clause 4 of this bill does bind the Crown and we would expect that to be the case. There is nothing that affects the application of the Crown’s ability to be prosecuted in cases of tort law that are brought against the Crown.

This is a very technical bill, and those of us not being of legal backgrounds have taken great advice from our legal advisers to the select committee. We certainly do look forward to further debate on this bill. At this point I will hand over to my colleagues. Thank you.

Part 1 agreed to.

Part 2 Substantive provisions