302 SYDNEY LAW REVIEW
NO doubt many of these criticisms are of a minor nature. On matters of
judgment and opinion it is rare to find any semblance of agreement. My
last and most serious criticism of this casebook is that there is too little
to stretch the student's mind. Usually the cases are so severely edited that
the student is unable to see the conflicting arguments that produced the
litigation. Rarely is the student faced with apparently contradictory decisions
- and in all of these cases Hall, in his brief introduction to the case, has
explained the inconsistency. The result is that this collection of materials
resembles, more than anything else, a sophisticated and superior "nutshell".
Such books have a useful purpose and this book can be recommended at that
level. But as a collection of materials for a university course in family law
it is inadequate.
D. J. MACDOUGALL"
The Choice of Law Process, by David F. Cavers. Ann Arbor, University of
Michigan Press, 1%5. 336 pp. ($8.50).
Over the last decade or so American conflicts law has been in the
throes of a Great Cultural Revolution. The unfortunate Joseph H. Beale is
cast in the role of President Liu. The scholarly Red Guards join in reviling
him, but cannot agree on what, if anything, should be substituted for the
vested-rights framework he so carefully construed in the First American
Restatement of the Conflicts of Law.
The adherents of the vested-rights theory assumed that a proper solution
to conflictual problems lay in the due apportionment of legislative jurisdiction.
The rules which they devised were therefore directed to determining the
governing law without regard to the contents of the laws ostensibly in conflict.
Cavers was one of the first writers to protest against such jurisdiction-selecting
rules and to argue that any solution of the conflict should proceed from an
examination of the contents of the laws ostensibly in conflict.'
This reviewer had the privilege of attending the Thomas M. Cooley
Lectures at the University of Michigan Law School in January, 1964, when
Professor Cavers delivered the lectures now embodied in this book. At that
time I was unfamiliar with American writings on the conflict of laws and I
went away deeply shocked at his willingness to sacrifice the apparent security
of existing rules to the will-o'-the-wisp of "justice in the particular case".
He appeared to share with the Red Guards in China a desire to destroy
the inherited framework in the hope that on the ruins a new and better
structure could be built. In all fairness to him he did give us some guidelines
as to how the new structure should be built.
Cavers proposes that a conflicts problem should be approached in two
stages. At the first stage the court should examine the laws ostensibly in
conflict in order to determine whether they are really in conflict. Obviously
there is no conflict if all the laws which claim to be applicable to the
situation are identical, if not in wording then in effect. An Australian example
of such a situation is found in Koop v. Bebb2 where a claim for wrongful
death would have succeeded whether one applied the law of the forum,
* LL.B. (Melb.), J.D. (Chicago), Professor of Law in the University of British
Columbia.
:D.F. Cavers, "A Critique of the Choice-of-Law Prablem" (1933) 47 Harv. L.R. 173.
(1951) 81 C.L.R. 629.
PRIVATE INTERNATIONAL LAW 303
the Victorian Wrongs Act, or the .?ex loci delicti, the identical Compensation
of Relatives Act of New South Wales.
Even where the laws in content are diametrically opposed the conflict
may still be a false one because only one law really purports to apply. The
other law has no interest in the situation. Assume that a married couple
domiciled in New South Wales drive their car which is registered and insured
in New South Wales for a short trip into a neighbouring jurisdiction where
marital immunity still prevails. In that jurisdiction the husband injures his
wife through his careless driving.
Ostensibly there is a conflict between the law of New South Wales which
permits the wife to sue her husband in such a case and the lex loci delilcti
which would prevent the suit. But Cavers would argue that the conflict is false.
The lex loci delicti has no interest in maintaining domestic peace between
couples resident in other states or in protecting New South Wales insurers
from collusive claims between spouses. No interest of the locus delicti would
be advanced by applying its law.
Conversely in some cases the forum may not be interested. In construing
the law of the forum the court may find that it does not purport to apply
extra-territorially. This, of course, has occurred in Australia, the recent decision
of the High Court in Kay's Leasing Pty. Ltd. v. Fletchel.3 being a prime example.
The above examples are relatively straightforward. But there are cases
where a determination that a false conflict exists will depend very much on
how the interests involved are analysed by the court. Thus it could be argued
that Anderson v. Eric Anderson Pty. LtdP presents a case of false conflict,
namely a collision between two New South Welshmen in the Australian Capital
Territory. What interest does the Territory have in ensuring that a New South
Wales plaintiff receives some of his damages from a defendant insured in
New South Wales rather than lose his entire claim by reason of his contributory
negligence?
However a different emphasis may discern some interest on the part of
the Territory. Thus it could be argued that the absolute bar of contributory
negligence was modified to encourage greater care in driving in the Territory.
The local driver now knows that he will not be relieved of liability because
the plaintiff himself was careless for his own safety. A court impressed
with the compensation aspect may hold the conflict to be false, whilst a court
impressed with the deterrence aspect may hold it to be real. Except in a
clear-cut case the discernment of an interest will often be arbitrary.
If the conflict is false there is no need to choose between them. But if
the conflict is true a choice must be made. Whilst Cavers maintains the need
to do justice in the particular case he does not mean thereby that each
decision to prefer one law over the other should be made dd hoc. The court
should resolve such conflicts by formulating a "principle of preference" which
would be of use not only in the particular instance but also in future cases
of a similar type.
An example of the process he advocates is given at pages 124 to 130
of his book. The hypothetical case there discussed bears some likeness to
Kay's Leasing Pty. Ltd. v. Fletcher and may well be discussed in its terms.
New South Wales, the forum, has enacted in its hire purchase legislation
certain provisions to protect hirers from undue exploitation. An agreement
is entered into in Victoria between a vendor who is resident in Victoria and
New South Wales hirers which contravenes the New South Wales provisions.
Victoria does not follow a policy of protection.
Clearly there is a true conflict since Victoria has an interest in allowing
" (1964) 116 C.L.R. 124.
* (1965) 114 C.L.R.20.
304 SYDNEY LAW REVIEW
ils residents to dictate hire-purchase terms to their advantage. New South
Wales also h~ a legitimate concern in protecting its residents. But how far
should its protection extend? Cavers ~$ouldsuggest that the policy which is
fairest, not only in this individual case but in future like cases, is to restrict
the protective New South Wales rule to transactions where the protected person
had a home in that state and the transaction had its centre there (see
his Principle of Preference No. 6, at p. 181).
This policy, he considers. is fair to all parties. On the one hand it
protects the Victorian vendor from undue surprise. which might await him if
the protection adhered to all residents of New South Wales. On the other
liand it extends the protection of New South Wales law to transactions wholly
centered in Kew South Wales but formally entered into outside that State.
In that case the Victorian seeking profit from New South Wales transactions
can be expected to conform to the laws of that State.
In Cavers' view the court sets itself up as determining. in the absence
of a clear statutory direction by the legislature. what is the proper ambit
oI the local rule (and for that matter of the foreign rule as well). This
the courts have done for years, as Cavers points out. But hitherto they have
pretended that they merely discover and carry out the intention of the
legislature. Cavers would wish them to take on an openly arbitral role and
decide for and on behalf of the state legislatures what would be the best
accommodation between their conflicting laws. Again this cannot be objectionable.
The supremacy of the legislature is not challenged; it can, at any time,
give express directions as to how the process of accommodation is to be
carried out; more ~visely,perhaps, it may leave it to the courts.
However, before we scrap our existing rules and go framing new
"principles of preference" we should stop to consider whether this will really
bring about that brave new world of perfect individual justice combined with
certainty of the law. Discontent with existing rules has been caused not by
their general inappropriateness to modern circumstances but by their inflexibility
in extraordinary situations. Generally speaking the rule that torts are governed
by the lex loci delicti is sensible; and Cavers' five "principles of preference"
dealing with torts (Ch. 6 ) do not really depart from the basic principle.
Problems only arise when two NFV Yorkers go on a jaunt in Ontario and
fall foul of its guest-passenger statute5 or when a Nev- Yorker buys a 'plane
ticket in New York and then happens to crash to his death in one of the
few jurisdictions which still limit the amount recoverable on wrongful death
~ l a i m s . ~But these are not typical situations.
It is unfortunately the atypical situations which make hard law. The
validity of Cavers' '-principles of preference" will also be tested not by the
straightforward situations but by the borderline puzzles, where the choice
is hard and mzy ultimately have to be made by rule of thumb. Cavers, of
course, appreciates this. He does not put forward his rules of preference as
cast-iron rules to be followed in all circumstances, but more as guidelines to
be applied if this would produce a just result, and to be abandoned for a
different "principle of preference". or even an ad hoc decision, if it would
not. But in that case the Holy Grail recedes forever in the distance.
This reviewer is more cautious. He would not wish to cast away the
received wisdom of our forefathers, provided it is received with the appreciation
that they dealt with more limited situations than their rules purport to
legislate for. Thus rules which lay down the circumstances in which English
courts will deal with foreign torts were framed with torts such as trespass,
defamation and negligence causing collisions at sea in mind. They were not
Babcock V. Jackson, 12 N.Y. 2d 473; 191 N.E. 2d 279 (1963).
'Kitberg v. Northeast Airlines 9 N.Y. 2d 34; 172 N.E. 2d 526 (1961).
PRIVATE INTERNATIONAL LAW 305
framed to deal with international aviation, third-party motor insurance or
manufacturers' liability. Instead of extending the limited rule to unlimited
situations we should be more ready to devise new rules to apply to new
situations. In devising the new rules the methods advocated by Cavers will
be helpful. When framing a conflictual rule dealing with manufacturers'
liability or consumer protection, the courts should consider the aims of
such legislation and how such local aims can best be advanced without
losing sight of the interests of the jurisdictions which do not consider such
rules necessary or have adopted different solutions. If Cavers' writings can
convince the courts that their function is the accommodation of conflicting
laws rather than the mechanical extension by dubious analogy of old inherited
rules, he will have done us all a great service.
P. E. NYGH*
Conflictof Laws -Cases, Notes and Materials, by J. G. Castel. Butterworth &
Co. (Canada) Ltd., 1968. xxvi and 1104 pp. ($19.50).
The first thing which struck this reviewer is the wealth of Canadian-conflicts material. In this country conflicts cases are few and far between,
thdugh their rate has been increasing of late. If conflictual problems do arise,
counsel often shirk them and even if they are bold enough to argue a matter
of conflicts law, the judiciary will find some way to ignore it. In Canada
apparently it is otherwise, due undoubtedly to the fact that the civil law
province of Quebec must be accommodated to the other common law provinces.
However, though Canadian courts have often illuminated relatively obscure
corners of the law of conflicts such as the rules dealing with negotiable
interests, title to movables (particularly motor cars) and actions relating to
foreign land, the basic principles have been imported from England. Thus
we meet most of the familiar English cases in this book. Strangely enough
the United States is not as well represented. Their case law is apparently
not of great relevance to Canadian jurisprudence except in the areas, such as
torts, where American cases have also recently attracted the attention of English
writers and judges. American textwriter opinion, on the other hand, is well
represented and deservedly so.
Most compilers of students' casebooks have to agonize in deciding
what to leave out. Professor Caste1 has not omitted anything. Indeed this
book of over 1,100 pages in relatively close print is a teacher's delight.
There is so much to choose from. Each chapter is introduced by a short
editorial. Professor Castel, as any good compiler of casebooks should, refrains
from seeking to impose any views on the reader. The main cases are followed
by notes which include not only extracts from other decisions, including the
most important Australian cases, but also extracts from critical comments
in the leading English, American and Canadian journals. A welcome innovation
is the printing of extracts from foreign statutory material where this is
necessary to understand a decision involving such statutes.
P. E. NYGH*
* LL.M. (Spd.), S.J.D. (Mich.), Associate Professor of Law, University of Sydney.