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Legislative Assembly for the ACT: 1995 Week 06 Hansard (Thursday, 21 September 1995) . . Page.. 1604 ..


LAW REFORM (MISCELLANEOUS PROVISIONS)(AMENDMENT) BILL 1995

MR HUMPHRIES (Attorney-General) (10.50): Mr Speaker, I present the Law Reform (Miscellaneous Provisions) (Amendment) Bill 1995, together with its explanatory memorandum.

Title read by Clerk.

MR HUMPHRIES: I move:

That this Bill be agreed to in principle.

This is a Bill to amend the Law Reform (Miscellaneous Provisions) Act 1955 following a recommendation arising out of the law review program conducted by the Attorney-General's Department. This amendment allows the Supreme Court to make an order having regard to the merits of the case in certain types of cases where jurisdiction may presently be denied. For example, in an action for the recovery of damages for trespass to foreign land, jurisdiction may be denied even if both parties reside in the ACT and title to that land is not in issue. This amendment will cure such a problem.

The proposed amendment abrogates, in part, a law of law sometimes called the Mozambique rule. The Mozambique rule stems from the decision of the House of Lords in British South Africa Co. Inc. v. Companhia De Mozambique, an 1893 case. This decision is authority for two propositions. The first part of the rule affirms that ACT courts have no jurisdiction to entertain an action for the determination of title to, or the right to possession of, land or other immovables situated outside the jurisdiction of the court. This is a rule founded on commonsense and is expressly retained in proposed subsection 34(2) of the principal Act.

The second part of the rule denies jurisdiction to entertain a personal action merely because foreign land is incidentally involved. For example, jurisdiction may be denied in an action for the recovery of damages for trespass to foreign land even if title to that land is not in issue. The logic for this rule stems from the medieval period. The second part of the rule has been severely criticised. It has been said to result in anomalous and arbitrary decisions, the injustice of possibly denying a plaintiff a venue for the hearing of the case, and illogical operation. The abolition of the second part of the rule is provided for in proposed subsection 34(1) of the principal Act. This formulation is consistent with the approach of the High Court in Voth v. Manildra Flour Mills Pty Ltd and the decision of Justice Deane in Oceanic Sun Line Special Shipping Co. Inc. v. Fay. I commend the Bill to the Assembly.

Debate (on motion by Mr Connolly) adjourned.


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