Report No. 193
The Qld Law Reform Commission says:
"In disputes involving interjurisdictional elements, the Court determining the dispute will apply its own procedural law, but will apply the substantive law which governs the dispute according to the principles of private international law. As a result, there has been extensive litigation in relation to the classification of potentially applicable limitation law.
The question of choice of law rules has now been dealt with by a cooperative approach involving all Australian jurisdictions. Each State and Territory agreed to enact legislation providing that, if the substantive law of another Australian jurisdiction governs a claim before a Court within the enacting jurisdiction, a limitation law of that other jurisdiction is to be regarded as part of that jurisdiction's substantive law and applied accordingly."
As an example, we shall refer to the provisions of the Choice of Law (Limitation Periods) Act (Victoria) 1993:
"Section1: Purpose: The purpose of this Act is to make provision about limitation periods for choice of law purposes.
Section2: Commencement: This Act comes into operation on the day on which it receives the Royal Assent.
Section3: Definitions: In this Act -
"Court' includes arbitrator;
'limitation law' means a law that provides for the limitation of any liability or the barring of a right of action in respect of a claim by reference to the time when a proceeding on or the arbitration of, the claim is commenced.
Section4: Application: This Act extends to a cause of action that arose before the commencement of this section but does not apply to proceeding instituted before the commencement of this section.
Section5: Characterisation of limitation laws: If the substantive law of another place being another State, a Territory or New Zealand, is to govern a claim before a Court of this State, a limitation law of that place is to be regarded as part of that substantive law and applied accordingly by the Court.
Section6: Exercise of discretion under limitation law: If a Court of the State exercises a discretion conferred under a limitation law of a place being another State, a Territory or New Zealand, that discretion, as far as practicable, is to be exercised in comparable cases by the Courts of that place."
It is clear that these Australian statutes have accepted the minority view of Mason CJ and other Judges who agreed with him in the case of McKain v. R.W. Miller and Company (South Australia) Pvt., Limited, (1992): 174 CLR1. So far as provisions of the limitation provisions other than those relating to choice of law are concerned, the Queensland Law Commission in its Report 53 (1998) recommended that the statutory law must reflect the common law rules only and must only bar the remedy and not extinguish the right itself.
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