CHISHOLM v PASMINCO METALS-BHAS PTY LTD [1995] NSWCA 74

CHISHOLM v PASMINCO METALS-BHAS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy ACJ, SHELLER and POWELL JJA 16 June 1995, 24 July 1995 [1995] NSWCA 74

PRIVATE INTERNATIONAL LAW — conflict of laws — limitation actions — whether substantive law or procedural law — commencement in New South Wales by plaintiff, injured in South Australia, of proceedings for extension of time within which to sue pursuant to Limitation Act 1969, s60G — primary judge (Finlay J) strikes out statement of claim — on appeal, by leave, to the Court of Appeal

CONSTITUTIONAL LAW — s118 full faith and credit — legislation of South Australia — status in court in New South Wales — conflict of laws — whether substantive or procedural in character — enactment of Limitation of Actions Act 1936 (SA), s38A — plaintiff commences proceedings after South Australian Act but prior to enactment of equivalent legislation in New South Wales

HELD: (Sheller JA; Kirby ACJ and Powell JA concurring): (1) As the plaintiff's proceedings were commenced prior to the amendment of the Limitation Act 1969 to deem the limitation law of another State to be substantive law, such law was to be regarded as procedural and an enactment by the Parliament of South Australia to the contrary did not determine its character for the courts of New South Wales. McKain v RW Miller and Company of South Australia) Pty Ltd (1991) 174 CLR 1; Stevens v Head (1993) 176 CLR 433 considered; (2) Accordingly, the limitation law, being by the common law procedural in character, it was governed by the law of New South Wales and, at the relevant time, the plaintiff was entitled to seek from the Supreme Court of New South Wales, an extension of time within which to sue in respect of wrongs allegedly done to him in South Australia; (3) Therefore, the plaintiff's motion and statement of claim were wrongly struck out and should be returned to the Common Law Division for determination.