Bennett DavidPRIVATE INTERNATIONAL LAW (CHOICE OF LAW IN TORT) BILLFirst ReadingDAVID BENNETT (National—Hamilton East): I move That the Private International Law (Choice of Law in Tort) Bill be now read a first time. I nominate the Justice and Electoral Committee to consider the bill. It is great to see you here Mr Speaker for this very important piece of legislation. I know that you have made time in your busy schedule to be here and we respect that you have come along to be part of this bill.Many members of this House will take some time to digest this bill and to look at the complexities of it but those members who do take that time will actually enjoy understanding more about this bill and what it adds to the New Zealand legal system. I would like to pay tribute initially to Minister Chris Finlayson who has had an important role in making this bill come through the House. I also want to pay tribute to Chapman Tripp as well which has written an excellent article on this bill. If anybody wishes to get a very brief summary that is easy to understand that is probably your best avenue at this time apart from of course the speeches here tonight which may be brief by some members of the House but should be understandable as well to those who are listening.Basically this bill clarifies a very important part of tort law. The law of tort is one of the most exciting areas of law. I remember when I studied it at university at law school at Victoria University here I enjoyed the law of tort as one of my favourite subjects. We actually had a French professor who taught us the French law of tort which was very interesting as well. One of the issues in tort law—Kris Faafoi: What did you learn?DAVID BENNETT: I learnt a lot. The law of tort covers many areas from defamation to 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 common law basis.There are some issues though in the law of tort. One of those issues is which jurisdiction would actually apply to a situation that may arise. If there is a certain set of facts that has multiple jurisdictions involved then the question is which jurisdiction would actually apply. This bill seeks to clarify this in a way that will provide a mechanism so that the New Zealand legal system will be up to date with other common law legal systems that have made similar changes but also will give some clarity to those in this field of practice.The bill essentially does a couple of things and the first is to abolish a rule called the double actionability rule.Paul Foster-Bell: What rule?DAVID BENNETT: The double actionability rule. It is very old in the sense that it comes from our common law heritage in the UK. 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. That is clause 6 of the bill. If members go to clause 6 they will see Abolition of certain common law rules". Well that is abolishing that double actionability rule.We have abolished that rule so now in clause 7 we create the general rule which will be the rule that should apply in those circumstances. Basically clause 7(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." Under clause 7(1): "The general rule is that the applicable law is the law of the jurisdiction in which the events constituting the tort in question occur." That is sensible and reflects what people would naturally expect.Clause 7(2) provides certain rules to determine where a tort can be said to have occurred when the events occurred in more than one jurisdiction. I will go through some examples of how that could actually happen but basically the rule in clause 7(2) says that "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"—so this is in regard to property damage—"the law of the jurisdiction where the property was when it was damaged;". The second part of that is: "(b) in any other case the law of the jurisdiction in which the most significant element or elements of those events occurred." Basically the applicable rule where there are different jurisdictions has two limbs to the test. One is in respect to damaged property and the other is for other cases and the rule gives some clarity around which jurisdiction would apply in the case.So first of all we have started off with abolishing that common law rule and then we have created the new general rule. That has two tests and the second test has two limbs to it one being around damages to property and the other one being for other cases. Now we come to the next part of the legislation which 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. Effectively that gives the court the ability to look at those circumstances that we have got in the general rule and determine that another jurisdiction may be more appropriate in that case.That exemption is in clause 8 and if we go to clause 8(1) it has basically got two factors there. 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 …". This is because as you go back to the general rule we say that it is the jurisdiction 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 now to displace that first general rule in circumstances where clause 8 is met.There are four really big elements to this legislation. The first is to abolish the common law rule; the second is to establish the place of wrong which is the jurisdiction where it occurs; the third is to provide rules around when it can be said to have occurred; and the fourth is to give an exemption from the general rule in certain circumstances. That provides a lot of clarity in the New Zealand law and it is something that you have seen happen in recent years in Australia Canada and England where they have brought into effect this place-of-wrong rule.For those members who wish to delve a little bit further into this area of law I would suggest they have a look at a couple of cases. There is some really interesting law around this area. One case is the Red Sea Insurance Co. case. That is a case that basically shows where in one jurisdiction there may not have been the ability to have the satisfaction of a tortious result and so the parties were looking at the area of jurisdiction because in one area where the actual event or the parties may have been based they did not have that support. The other case that is really good to look at is Boys v Chaplin. That also had a similar circumstance in the sense that something had happened in Malta which did not have this approach.This legislation clarifies the law in this area. It is a great piece of legislation. It is something that I think the legal fraternity will find of much benefit and it is our pleasure to propose it to this House."