Private international law in Australia [Fourth edition.] 9780409348279, 0409348279

Table of contents :
Private International Law in Australia 4th edition
Contents
Detailed contents
Preface
Table of Cases
Table of Statutes
Part 1
Chapter 1
Part 2
Chapter 2
Chapter 3
Chapter 4
Chapter 5
Chapter 6
Part 3
Chapter 7
Chapter 8
Chapter 9
Chapter 10
Chapter 11
Chapter 12
Part 4
Chapter 13
Chapter 14
Chapter 15
Chapter 16
Part 5
Chapter 17
Chapter 18
Chapter 19
Part 6
Chapter 20
Chapter 21
Chapter 22
Part 7
Chapter 23
Chapter 24
Index

Citation preview

Private International Law in Australia Fourth Edition

Private International Law in Australia Fourth Edition

Reid Mortensen

BCom (Hons I), LLB (Hons I), PhD (Qld) Professor of Law and Head of School, School of Law and Justice, University of Southern Queensland Lawyer, Supreme Court of Queensland

Richard Garnett

BA, LLB (UNSW), LLM (Harv) Professor of Law, Melbourne Law School, University of Melbourne

Mary Keyes

BA, LLB (Hons) (Qld), GCert Higher Education, PhD (Griffith) Professor of Law Griffith Law School, Griffith University

LexisNexis Butterworths Australia 2019

LexisNexis AUSTRALIA LexisNexis Butterworths 475–495 Victoria Avenue, Chatswood NSW 2067 On the internet at: www.lexisnexis.com.au ARGENTINA LexisNexis Argentina, Buenos Aires AUSTRIA LexisNexis Verlag ARD Orac GmbH & Co KG, Vienna BRAZIL LexisNexis Latin America, Sao Paulo CANADA LexisNexis Canada, Markham, Ontario CHILE LexisNexis Chile, Santiago CHINA LexisNexis China, Beijing, Shanghai CZECH REPUBLIC Nakladatelství Orac sro, Prague FRANCE LexisNexis SA, Paris GERMANY LexisNexis Germany, Frankfurt HONG KONG LexisNexis Hong Kong, Hong Kong HUNGARY HVG-Orac, Budapest INDIA LexisNexis, New Delhi ITALY Dott A Giuffrè Editore SpA, Milan JAPAN LexisNexis Japan KK, Tokyo KOREA LexisNexis, Seoul MALAYSIA LexisNexis Malaysia Sdn Bhd, Petaling Jaya, Selangor NEW ZEALAND LexisNexis, Wellington POLAND Wydawnictwo Prawnicze LexisNexis, Warsaw SINGAPORE LexisNexis, Singapore SOUTH AFRICA LexisNexis Butterworths, Durban SWITZERLAND Staempfli Verlag AG, Berne TAIWAN LexisNexis, Taiwan UNITED KINGDOM LexisNexis UK, London, Edinburgh USA LexisNexis Group, New York, New York LexisNexis, Miamisburg, Ohio

A catalogue record for this book is available from the National Library of Australia. ISBN:

9780409348279 (pbk). 9780409348286 (ebk).

© 2019 Reed International Books Australia Pty Limited trading as LexisNexis. First edition, 2006 (reprinted 2009, 2010); second edition, 2011; third edition, 2015. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Minion Pro and Myriad Pro. Printed in Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Contents Detailed Contents Preface Table of Cases Table of Statutes

vii xvii xix lvii

PART 1

Introduction to Private International Law

1

Chapter 1

Scope, Development and Purpose

3

PART 2

Jurisdiction and Judgments

25

Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6

Personal Jurisdiction Jurisdiction: Exceptions and Immunities Restraints on Proceedings The Effect of Foreign and Interstate Judgments International Arbitration

27 75 91 133 171

Part 3

Choice of Law Method

Chapter 7 Chapter 8 Chapter 9 Chapter 10 Chapter 11 Chapter 12

Choice of Law Method 1: The General Part 191 Choice of Law Method 2: Complications and Exceptions 215 Proof of Foreign Law 249 Personal Connections 265 Constitutional Limits on Choice of Law 299 Statutes 315

Part 4

International Family Law

Chapter 13 Chapter 14 Chapter 15 Chapter 16

The Validity of Marriages and Other Adult Relationships Separation, Dissolution and Annulment of Marriage Parental Responsibility Property and Maintenance

Part 5

Choice of Law for Obligations

Chapter 17 Chapter 18 Chapter 19

Contracts 439 Torts 469 Equitable Claims and Trusts 491

189

v

331 333 367 387 423

437



Private International Law in Australia

PART 6

Choice of Law for Property

Chapter 20 Chapter 21 Chapter 22

The Location and Classification of Property Transfer of Property between Living and Corporate Persons Succession to Property on Death

PART 7

International Company Law

Chapter 23 Chapter 24

International Company Law Corporate Insolvency

Index

503 505 517 533

557 559 573 585

vi

Detailed Contents Preface Table of Cases Table of Statutes

xvii xix lvii

PART 1

Introduction to Private International Law

Chapter 1

Scope, Development and Purpose 3 Themes of private international law 3 Historical development 7 Ancient approaches 7 Scholarly development 8 Institutional writing as a source of law 12 Judicial development in England 13 An Australian private international law 15 Objectives 19 Consistency 20 Particular justice 22 International and interstate comity 23

PART 2

Jurisdiction and Judgments

Chapter 2

Personal Jurisdiction 27 Introduction 27 Personal jurisdiction at common law 28 Presence 28 Submission 32 Personal jurisdiction in interstate cases 34 Diversity jurisdiction 34 Service and Execution of Process Act 1992 (Cth) 37 Cross-vested jurisdiction 38 Personal jurisdiction in international cases 45 Jurisdiction over New Zealand defendants 45 Personal jurisdiction in international cases not involving New Zealand 45 Harmonised rules of court 50 Grounds of jurisdiction — personal connections 51 Grounds of jurisdiction — submission to the jurisdiction 51 Grounds of jurisdiction — contracts 52 Grounds of jurisdiction — wrongs 56

vii

1

25



Private International Law in Australia Grounds of jurisdiction — application of forum legislation 65 Grounds of jurisdiction — property 66 Grounds of jurisdiction — probate and administration 68 Grounds of jurisdiction — foreign judgments and awards 69 Grounds of jurisdiction — injunctions, interim and ancillary relief, freezing orders 69 Method of service 70 Conclusion 73

Chapter 3

Jurisdiction: Exceptions and Immunities 75 Introduction 75 Foreign immovables 75 The Moçambique principle 75 Australian Capital Territory 78 New South Wales 78 Personal actions relating to immovables 79 Reform 80 Foreign state immunity 80 Foreign states 81 Exceptions to immunity 82 Immunity from execution 86 Diplomatic and consular immunity 87 Diplomatic immunity 87 Consular immunity 88 Duration and waiver 88

Chapter 4

Restraints on Proceedings 91 Introduction 91 International proceedings 91 Mandatory rules 92 Jurisdiction agreements 94 Forum non conveniens 101 Procedure 108 Interstate proceedings 112 Interstate proceedings in superior courts 112 Forum non conveniens 122 Interstate proceedings in intermediate and inferior courts 122 Restraining proceedings in another court 124 Restraining proceedings in a foreign court 124 Restraining proceedings in another Australian or a New Zealand court 130 Reform 130 Conclusion 131

viii





Detailed Contents

Chapter 5

The Effect of Foreign and Interstate Judgments 133 Introduction 133 Recognition and enforcement of judgments at common law 136 International jurisdiction 137 Final and conclusive 143 Fixed sum 143 Identical parties 145 Fraud 145 Natural justice 148 Public policy 149 Penal and revenue judgments 150 Incompatible judgments 150 Foreign competition judgments 151 Estoppel and foreign judgments 151 Registration of foreign judgments 153 Registration — conditions and effect 156 Setting aside registration 158 International jurisdiction 159 Identical parties 163 Fraud 163 Natural justice 163 Public policy 164 Incompatible judgments 164 Registration of interstate judgments 165 Full faith and credit 165 Registration procedures 167 Registration of New Zealand judgments 168

Chapter 6

International Arbitration 171 Introduction 171 Enforcement of international arbitration agreements 171 Writing requirement 172 A matter capable of settlement by arbitration 172 Applicable law in international arbitration 178 Law governing the substance 178 Law governing the arbitration agreement 179 Law governing the arbitral procedure 180 Enforcement of arbitral awards 182 Foreign arbitral awards 182 Enforcement of awards under the Model Law 187 Investor–state arbitration 188

ix



Private International Law in Australia

Part 3

Choice of Law Method

189

Chapter 7

Choice of Law Method 1: The General Part 191 Introduction 191 Choice of law and internal rules 192 The identification of a conflict of laws 192 Identifying the possibly relevant legal systems 193 The internal rules of the possibly relevant systems 193 A conflict of laws 193 The classification of the subject matter 194 The subject matter 194 Classifications 196 The law of classification 198 The classification of substantive or procedural law 200 General principles of procedural law 200 Particular issues 203 The identification of the choice of law rule 213 The application of the law of the cause 213 Which aspects of the law of the cause? 213

Chapter 8

Choice of Law Method 2: Complications and Exceptions 215 Introduction 215 Complications of choice of law method 215 Dépeçage 215 The incidental question 216 Renvoi 219 Exclusion of unacceptable laws 231 Unrecognised states 231 Penal laws 232 Revenue laws 234 Expropriation laws 235 Foreign governmental interests 238 Public policy 240

Chapter 9

Proof of Foreign Law The status of foreign law The presumption of identity Presumption of identity — interpretation of foreign statutes Foreign law as fact and precedent Evidence of foreign law Expert witnesses Judicial notice Reference of a question of foreign law Documentary sources of law Determination of foreign law Proof of interstate law x

249 249 251 253 255 256 256 257 258 261 262 263





Detailed Contents

Chapter 10

Personal Connections 265 Introduction 265 Domicile 266 Domicile of origin 269 Domicile of dependence 272 Domicile of choice 274 Nationality 278 Australian citizenship 279 Foreign nationality 285 Multiple nationalities 288 Residence 288 Residence 289 Ordinary residence 289 Habitual residence 291 Reform 295

Chapter 11

Constitutional Limits on Choice of Law 299 Introduction 299 Full faith and credit 300 Full faith and credit: No public policy exclusion of interstate law 300 Full faith and credit: Effect on the content of the choice of law rule 302 Interstate discrimination 310 The Australian Constitution in choice of law: Status and future 313

Chapter 12

Statutes 315 Introduction 315 Forum statutes 316 Extraterritorial reach of statutes 316 Statutory choice of law rules 316 Self-limiting provisions 317 Generally-worded statutes 318 Statutes of other places 324 Foreign statutes 324 Interstate statutes 325 Interstate statutes under the cross-vesting scheme 326 Operation of s 11(1)(b) 326

Part 4

International Family Law

Chapter 13

The Validity of Marriages and Other Adult Relationships 333 Introduction 333 The legal concept of marriage 335 Voluntary union 336 xi

331



Private International Law in Australia Indefinite duration The sex or gender of the parties Other recognised adult relationships Monogamous union The common law choice of law rules The formal validity of marriage The essential validity of marriage Other issues Marriage: The present choice of law rules Marriages solemnised in Australia before 7 April 1986 Marriages solemnised in Australia from 7 April 1986 Marriages solemnised outside Australia The recognition of other interstate and foreign adult relationships

337 337 339 340 343 344 349 353 355 357 358 359 364

Chapter 14

Separation, Dissolution and Annulment of Marriage 367 Introduction 367 Jurisdiction 368 Dissolution of marriage 368 Annulment of marriage 368 Choice of law 372 Dissolution 372 Annulment 373 Void, revoked and terminated adult relationships 373 Recognition of decrees 373 Australian decrees 373 New Zealand decrees 373 Sources of rules for recognising foreign decrees 374 Unrecognised foreign decrees 382 Natural justice 383 Public policy 384 Failure to comply with the foreign law 385

Chapter 15

Parental Responsibility 387 Introduction 387 Jurisdiction 389 Jurisdictional competence 389 Exercise of jurisdiction 397 The application of the Child Abduction Convention 400 Habitual residence 400 Child Abduction Convention countries 401 General approach 401 Central authorities 402 Wrongful removal or retention 403 Return 406 xii



Detailed Contents



Settlement into new environment 406 Excusable removal or retention 407 Access 414 Choice of law 415 Part VII of the Family Law Act 415 Child Protection Convention 415 The recognition of foreign parenting orders 418 The general law 418 The registration of foreign parenting orders 420 Chapter 16

Property and Maintenance 423 Introduction 423 Jurisdiction 424 Jurisdiction as of right 424 Parties 424 Limits on jurisdiction 425 Discretionary stay of proceedings 426 Anti-suit injunctions 427 Stay of trans-Tasman proceedings 428 Courts 430 Choice of law 430 Recognition and enforcement of foreign property and maintenance orders 431 Property orders 431 Maintenance 432 Overseas maintenance orders registered before 1 July 2000 433 Overseas maintenance orders registered from 1 July 2000 433 New York Maintenance Convention 434

Part 5

Choice of Law for Obligations

Chapter 17

Contracts 439 The scope of the proper law 439 Classification 440 Time of attribution 441 The determination of the proper law 443 Subjective proper law 443 Objective proper law 448 Change of proper law 451 Multiple proper laws 453 Dépeçage 453 Incorporation 454 Formation and performance 455 Formation 455 Performance 457 xiii

437



Private International Law in Australia Related claims 461 Specific contracts 461 International sea carriage of goods contracts 461 International sale of goods contracts 462 Insurance contracts 462 Consumer contracts 463 Consumer credit contracts 464 Contracting out 465 Reform 465

Chapter 18

Torts 469 Introduction 469 The general tort choice of law rule 469 Renvoi 471 The place of the tort 473 The general rule 473 Negligence 474 Misrepresentation 475 Defamation 476 Maritime torts 476 Choice of law for defamation 477 Defamation within Australia 477 Foreign defamations 479 Circumstances in which the governing law may not be applied 479 Procedural rules 479 Public policy 480 Claims and defences under forum legislation 481 Classification of specific issues 482 Survival of actions 482 Wrongful death 483 Nominal defendants 483 Direct actions against insurers 484 Interspousal immunity 484 Indemnity 485 Contribution 486 Insurers’ rights of subrogation 487 Conversion 487 Concurrence of liability 488 Contractual and statutory defences to claims in tort 489

Chapter 19

Equitable Claims and Trusts 491 Introduction 491 Jurisdiction 491 Jurisdiction in equity 491 xiv





Detailed Contents Choice of Law — Equitable Claims Equitable defences Equitable remedies Choice of Law — Trusts Hague Trusts Convention Trusts outside the scope of the Hague Trusts Convention

492 496 496 497 498 500

PART 6

Choice of Law for Property

Chapter 20

The Location and Classification of Property 505 The method of classifying property 505 Immovables and movables 505 The location of property 507 Tangible property 507 Debts 508 Other intangible property 510 The classification of property 512 Tangible property 513 Debts 514 Other intangible property 514

Chapter 21

Transfer of Property between Living and Corporate Persons 517 Introduction 517 Transfer of immovable property 518 Formal validity 518 Essential validity 518 Capacity 519 The contract requiring the transfer 519 Transfer of movable property 520 Tangible property 520 Debts 524 Other intangible movable property 530

Chapter 22

Succession to Property on Death 533 Introduction 533 Executors and administrators 534 Jurisdiction 534 The appointment of a personal representative 535 Scission 535 Re-sealing of foreign and Commonwealth grants 537 Refusal to confirm grants 537 Representative’s accountability 538 Administration 538 Principal administration 539 Ancillary administration 540 Beneficial succession 540 xv

503



Private International Law in Australia Immovable property 541 Movable property 547 The exercise of powers of appointment 552 General and special powers 552 Formal validity 552 Capacity 553 Essential validity 553 Interpretation 554 Revocation 554 Reform 555

PART 7

International Company Law

Chapter 23

International Company Law 559 Introduction 559 Jurisdiction 560 The power to exercise jurisdiction 560 Courts 561 Restraints on companies’ proceedings within Australia 562 Restraints on trans-Tasman companies’ proceedings 563 Restraints on companies’ proceedings in international cases 563 Choice of law 565 The validity of incorporation 567 Capacity and powers 567 Members’ rights and liabilities 568 Internal management 568 Recognition and enforcement of foreign companies’ orders 570

Chapter 24

Corporate Insolvency 573 Introduction 573 The Model Law 573 Overview 573 Access of foreign representatives and creditors to Australian courts 574 Recognition of foreign insolvency proceedings and relief 575 Concurrent insolvency proceedings and judicial cooperation 579 Winding up of companies 582

Index

557

585

xvi





Preface to the Fourth Edition Since the last edition was published, Australian private international law has continued to consolidate its somewhat unique approach within the common law system. Private international law continues to grow in practical importance in Australia; this is demonstrated most clearly in the increase in the number of cases coming before the courts in all of the areas which are covered in this book. With notable exceptions, Australian legislators have given limited attention to this field. Much of the focus in terms of legal development remains on jurisdiction, while the recognition and enforcement of foreign judgments has become increasingly significant. While the number of cases in the family jurisdiction has grown substantially, there have been only a small number of changes in the principles applied in that context. The amendments to the Marriage Act in 2017 to allow same-sex marriage to be celebrated in Australia, and to remove the prohibition on recognition of foreign-celebrated same-sex marriages, are particularly noteworthy, but the recognition of same sex marriages already celebrated overseas may not have been given the careful attention it needed. In relation to jurisdiction, the most important change that has occurred is the recent adoption in four states and the Australian Capital Territory of the so-called harmonised rules on service of process outside Australia,1 developed under the auspices of the Council of Chief Justices. In most common law systems, service of process establishes the competence of the courts to deal with international disputes. While, in principle, harmonisation between the rules of court in the states and territories, and for that matter the Federal Court, is desirable, there are serious shortcomings in the harmonised rules. Most problematically, in the form of the rules adopted in New South Wales, South Australia, Tasmania and Victoria, the requisite connections to various aspects of the claims are to ‘Australia’ rather than to the relevant state.2 Not only do we believe that insufficient attention has been paid to the legal basis of the harmonised rules, in allowing a state court to exercise jurisdiction over overseas defendants in cases that have no connection with the relevant state, it seems that the harmonised rules create some of the world’s most exorbitant international jurisdictions. Still on the topic of jurisdiction, in 2016, the Federal Parliament’s Joint Standing Committee on Treaties (JSCOT) recommended that Australia take binding treaty action to bring the Hague Convention on Choice of Court Agreements 2005 into effect in Australia, in the form of an International Civil Law Act. At the date of writing, in November 2018, this had still not come to fruition; when (and if) it does, this will give stronger protection to exclusive jurisdiction clauses in commercial contracts, equivalent to that given to arbitration clauses. JSCOT also recommended that the International Civil Law Act should implement the Hague Principles on Choice of Law in International Commercial Contracts; this recommendation is not currently being pursued by the federal government. In the area of recognition and enforcement of foreign judgments, the High Court has been active since the last edition with two decisions that confirm the generally liberal 1. 2.

See Chapter 2. The version of the harmonised rules adopted in the Australian Capital Territory refers to connections to the Territory rather than to Australia: Court Procedures Rules 2006 (ACT) r 6502.

xvii



Private International Law in Australia

approach towards enforcement in Australian law. In PT Bayan Resources TBK v  BCBC Singapore Pte Ltd 3 the court held that a mareva order may be issued by an Australian court in aid of enforcement of a foreign judgment, while in Firebird Global Master Fund II Ltd v Republic of Nauru,4 a foreign state judgment debtor was declared not to be immune from the jurisdiction of an Australian court in a proceeding to enforce the judgment where the transaction upon which the judgment was based was commercial. This edition remains the same in structure as the previous editions, although a new chapter on Equitable Claims and Trusts has been added to the section on Choice of Law for Obligations. Looking to the future, the consequences for private international law of the United Kingdom’s exit from the European Union (‘Brexit’) remain unclear, but are potentially significant for Australia. During the UK’s membership of the European Union, there has been an increasing divergence between Australian private international law, and the laws applicable in the UK, many of which derive from EU legal instruments. It is possible that Brexit will have the indirect effect of reviving UK legal developments as an important source for Australian private international law. The law is stated as of 30 June 2018. We thank Jocelyn Holmes, Geraldine MacLurcan and Catherine Britton for their editorial and production work on this edition. Reid Mortensen Toowoomba, Queensland

Richard Garnett Melbourne, Victoria

Mary Keyes Brisbane, Queensland November 2018

3. 4.

(2015) 258 CLR 1. (2015) 258 CLR 31.

xviii

Table of Cases References are to paragraphs — v National Bank of Greece and Athens [1961] AC 255 …. 7.19, 8.64 Adamson’s Executors v McTaggart (1893) 20 R 738 …. 23.13 Adcock v Aarons (1903) 5 WALR 140 …. 2.50 Addison v Addison [1955] NI 1 …. 13.39 — v Brown [1954] 1 WLR 779 …. 8.58 Administration of Norfolk Island v SMEC Australia Pty Ltd [2004] NFSC 1 …. 6.2 Adsteam Building Industries Pty Ltd v The Queensland Cement and Lime Co Ltd (No 4) [1985] 1 Qd R 127 …. 9.10 AED Oil Ltd v Puffin FPSO Ltd (2010) 27 VR 22; [2010] VSCA 37 …. 6.5 — v — (No 2) [2009] VSC 534 …. 6.5, 6.9 Aerospatiale Holdings Australia Pty Ltd v Elspan International Ltd (1992) 28 NSWLR 321 …. 6.24 Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 …. 2.43, 2.44, 2.45 Agarwal v Bagga [2016] NSWCS 1402 …. 16.12 Agnew v Usher (1884) 14 QBD 78 …. 2.83 Agrokar DD, Re [2017] EWHC 2791 (Ch) …. 24.12 Ah Yin v Christie (1907) 4 CLR 1428 …. 10.29 Ahmed v Habib Bank [2001] EWCA Civ 1270 …. 5.26 AIG UK Ltd v QBE Insurance (Europe) Ltd [2008] QSC 308 …. 17.24 Ainslie v Ainslie (1927) 39 CLR 381 …. 14.50 Airbus Industrie GIE v Patel [1999] 1 AC 119 …. 4.89 Aircraft Support Industries Pty Ltd v William Hare UAE LLC [2015] NSWCA 229 …. 6.32, 6.33 AJ Smeman Car Sales v Richardson Pre-Run Cars (1969) 63 QJPR 150 …. 21.14

A

A (a minor), Re [1988] 1 FLR 365 …. 15.33, 15.53 A (Minor) (Abduction) (No 2), Re [1993] 1 All ER 272 …. 15.56 A (Minors) (Abduction: Acquiescence), Re [1992] Fam 106 …. 15.47, 15.56 A v B [1979] 1 NSWLR 57 …. 15.18 — v S (Financial Relief after Overseas US Divorce) [2002] EWHC 1157 …. 16.14 AAP Industries Pty Ltd v Rehau Pte Ltd [2015] NSWSC 468 …. 4.15 Abate, as Liquidator of Onix Capital SA, Re [2017] FCA 751 …. 24.11 Abigroup Contractors Pty Ltd v Transfield Pty Ltd (1998) 217 ALR 435; [1998] VSC 103 …. 6.12 Abouloff v Oppenheimer (1882) 10 QBD 295 …. 5.28 Abrook v Paterson (1995) 58 FCR 293 …. 4.59 ACD Tridon Inc v Tridon Australia Pty Ltd [2002] NSWSC 896 …. 6.2, 6.5, 6.14 Ace Insurance Ltd v Moose Enterprise Pty Ltd [2009] NSWSC 175 …. 4.31 — v — [2009] NSWSC 724 …. 4.15, 4.16, 4.28, 4.87 Achillopoulos, Re [1928] Ch 433 …. 22.10 ACN 006 397 413 Pty Ltd v International Movie Group (Canada) Inc [1997] 2 VR 31 …. 6.33 Acquaah-Akuffo & Abioye [2016] FamCAFC 194 …. 15.27 Activate No 1 Pty Ltd v Equuscorp Pty Ltd [1999] FCA 619 …. 4.69 Adams, Re [1967] IR 424 …. 22.42 Adams v Adams [1971] P 188 …. 1.4, 8.37, 8.38 — v Cape Industries plc [1990] Ch 433 …. 5.13, 5.15, 5.32 — v Clutterbuck (1883) 10 QBD 403 …. 21.4 xix



Private International Law in Australia

AK Investment CJSC v Kyrgyz Mobile Tel Ltd [2012] 1 WLR 1804 …. 5.33 Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 …. 4.10, 4.15, 4.17, 4.19, 4.20, 4.28, 4.29, 4.20, 6.19, 9.9, 12.4, 12.8, 12.23, 17.6, 17.7, 17.11, 17.12, 17.14, 17.15, 17.16, 17.48, 17.53 — v — [1998] 1 Lloyd’s Rep 90 …. 4.20, 4.28 Akbarali v Brent London Borough Council [1983] 2 AC 309 …. 10.59, 10.60 Akers v Deputy Commissioner of Taxation (2014) 311 ALR 167; [2014] FCAFC 57 …. 24.1, 24.3, 24.4, 24.6, 24.15, 24.16 — v Saad Investments Co Ltd (in official liquidation) (2010) 190 FCR 285; [2010] FCA 1221 …. 24.8 — v — [2013] FCA 738 …. 24.15 — v Samba Financial Group [2017] AC 424 …. 19.21, 19.25 Aksionairnoye Obschestvo AM Luther v James Sagor & Co [1921] 1 KB 456 …. 8.37 — v — [1921] 3 KB 532 …. 8.51 Al-Attiya v Bin-Jassim Bin-Jaber Al Thani [2016] EWHC 212 …. 3.26 Aldrich v Attorney-General [1968] P 281 …. 22.5 Alexander v Alexander (1969) 113 Sol Jnl 344 …. 14.32 Alfarsi & Elhage [2016] FamCA 428 …. 15.8 Ali v Ali [1968] P 564 …. 13.15, 13.16 Allen v Depuy International Ltd [2015] EWHC 926 …. 7.40 Allen & Cortez [2016] FamCA 320 …. 16.4, 16.7, 16.8 Allergan Pharmaceuticals Inc v Bausch & Lomb Inc [1985] ATPR 40-636 …. 6.9 Allstate Insurance Co v Hague 449 US 302 (1981) …. 1.31 Alseran v Ministry of Defence [2017] EWHC 3289 …. 7.41 Alstom Ltd v Sirakis (No 2) [2012] NSWSC 64 …. 9.23 Aluminal Industries Inc v Newtown Commercial Associates 89 FRD 326 (1980) …. 2.9 Aluminium Industrie Vaassen BC v Romalpa Aluminium Ltd [1976] 1WLR 676 …. 9.2

Alvear v Chetwynd Park Pty Ltd [2014] VSC 214 …. 7.24, 7.31 ALYK (HK) Ltd v Caprock Commodities Trading Pty Ltd and China Construction Bank Corp [2015] NSWSC 1006 …. 6.38 AM McKenzie, dec’d, Re (1951) 51 SR (NSW) 293 …. 1.18, 10.10 Amaca Pty Ltd v Frost (2006) 67 NSWLR 635; [2006] NSWCA 173 …. 2.68, 7.40 Amchem Products Inc v British Columbia (Workers’ Compensation Board) [1993] 1  SCR 897 …. 4.38, 4.86, 4.89 — v Workers’ Compensation Board (1989) 42 BCLR (2d) 77 …. 4.89 Americhip Inc v Dean [2015] 3 NZLR 498 …. 5.41 Amin Rasheed Shipping Corp v Kuwait Insurance Co [1984] AC 50 …. 17.1, 17.5, 17.14, 17.15, 17.17 Amor v Macpak Pty Ltd (1989) 95 FLR 10 …. 4.73 An Infant, Re [1981] Qd R 225 …. 10.56 Anderson and McIntosh [2013] FamCAFC 200 …. 14.21 Anderton v Enterprising Global Group Pty Ltd [2003] WASC 67 …. 4.69 Andressen v Bendigo and Adelaide Bank Ltd [2016] SASC 111 …. 2.8 — v — (No 2) [2017] SASC 25 …. 2.8 Anglo-Czechoslovak Credit Bank v Janssen [1943] VLR 185 …. 8.38 Anglo-Iranian Oil Co Ltd v Jaffrate (The Rose Mary) [1953] 1 WLR 246 …. 1.4, 8.65, 8.66 Annesley, Re; Davidson v Annesley [1926] Ch 692 …. 8.28, 8.29, 8.30, 8.32, 8.33, 9.2 Anning v Anning (1907) 4 CLR 1049 …. 21.4 Anziani, Re; Herbert v Christopherson [1930] 1 Ch 407 …. 21.26 Application for Adoption of M, Re (1992) 112 ACTR 39 …. 10.56 Application of Perpetual Trustee Company Ltd: Re Estate of Dempsey [2016] NSWSC 159 …. 10.8, 10.9, 10.16, 10.23, 10.25, 10.27 Apt v Apt [1947] P 127 …. 7.18 — v — [1948] P 83 …. 7.18 — v — [1948] P 204 …. 13.23 xx



Table of Cases

Armacel Pty Ltd v Smurfit Stone Container Corp (2008) 248 ALR 573; [2008] FCA 592 …. 4.16, 5.41 Armar Shipping Co v Caisse Algerienne d’Assurance et de Reassurance, (The Armar) [1981] 1 All ER 498 …. 17.21, 17.22 Armitage v Attorney-General [1906] P 135 …. 14.41 Arthur v Secretary, Dept of Family & Community Services [2017] FamCAFC 111 …. 15.44 AS Latvijas Krajbanka v Antonov [2016] EWHC 1679 …. 23.22 Askew, Re [1930] 2 Ch 259 …. 8.20 AssetInsure Pty Ltd v New Cap Reinsurance Corp Ltd (in liq) (2004) 61 NSWLR 451; [2004] NSWCA 225 …. 20.10 — v — (2006) 225 CLR 331; [2006] HCA 13 …. 20.10 Astro Exito Navegacion SA v Southland Enterprise Co Ltd (No 2) (The Messiniaki Tolmi) [1982] QB 1248 …. 2.16 Astro Venturoso Compania Naviera v Hellenic Shipyards SA (The Marianna) [1983] 1 Lloyd’s Rep 12 …. 17.23 Atlantic Underwriting Agencies Ltd v Compagnia di Assicurazione di Milano SpA [1979] 2 Lloyd’s Rep 240 …. 17.18 Attorney-General v Bouwens (1838) 4 M & W 171; 150 ER 1390 …. 20.7, 20.10, 20.13 — v Higgins (1857) 2 H & N 339; 157 ER 339 …. 20.16 — v Kevin (2003) 30 Fam LR 1; [2003] FamCA 94 …. 13.11, 13.12 — v Lord Sudeley [1896] 1 QB 354 …. 20.19 Attorney-General for England and Wales v R [2002] 2 NZLR 91 …. 9.2, 9.9, 17.33 Attorney-General for the United Kingdom v Wellington Newspapers Ltd [1988] 1 NZLR 129 …. 8.53 Attorney-General of Botswana v Aussie Diamond Products Pty Ltd (No 3) [2010] WASC 141 …. 17.15, 17.16 Attorney-General of New Zealand v Ortiz [1982] QB 349 …. 1.6 — v — [1984] AC 1 …. 8.51, 8.52, 8.53, 8.54

Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (the Spycatcher case) (1987) 10 NSWLR 86 …. 1.6, 8.53, 8.54, 8.61, 8.62 — v — (1988) 165 CLR 30 …. 8.53, 8.54, 8.58, 8.61, 8.62, 19.6, 19.7 August, The [1891] P 328 …. 17.34 Augustus v Permanent Trustee Co (Canberra) Ltd (1971) 124 CLR 245 …. 12.27, 17.13, 19.28, 23.22 Austin & Hong [2015] FamCA 1119 …. 13.52 Australasian Temperance and General Mutual Life Assurance Society v Howe (1922) 31 CLR 290 …. 2.19 Australian Broadcasting Corp v Waterhouse (1991) 25 NSWLR 519 …. 2.69, 12.31, 12.32, 18.20 Australian Commercial Research and Development Ltd v ANZ McCaughan Merchant Bank [1989] 3 All ER 65 …. 4.54 Australian Competition and Consumer Commission v Chen (2003) 132 FCR 309; [2003] FCA 897 …. 17.50, 19.16 — v Valve Corp (No 3) (2016) 337 ALR 647; [2016] FCA 196 …. 2.52, 17.17, 17.19, 17.50, 17.51 Australian Federation of Islamic Councils Inc v Westpac Banking Corp (1988) 17 NSWLR 623 …. 3.21, 3.28 Australian Gourmet Pastes Pty Ltd v IAG New Zealand Ltd [2017] VSCA 155 …. 4.9, 4.56 Australian Insurance Brokers Ltd v Hudig Langeveldt Pty Ltd (No 2) (1991) 7 WAR 343 …. 2.41 Australian International Islamic College Board Inc v Kingdom of Saudi Arabia (2013) 298 ALR 655; [2013] QCA 129 …. 3.21 Australian Mutual Provident Society v GEC Diesels Australia Ltd [1989] VR 407 …. 2.78 — v Gregory (1908) 5 CLR 615 …. 20.33, 21.34 Australian Public Trustees Ltd (in its capacity as trustee and/or responsible entity of the Government Property Trust No 5) v Australian Public Trustees Ltd (in its capacity as trustee of the Government Property Trust No 3) (2012) 81 ACSR 236; [2012] VSC 364 …. 20.16 xxi





Private International Law in Australia

Australian Securities and Investments Commission v Cycclone Magnetic Engines Inc (2009) 71 ACSR 1; [2009] QSC 058 …. 23.20 — v Edwards (2004) 22 ACLC 1469; [2004] QSC 344 …. 24.28 Ayres v Evans (1981) 39 ALR 129; 56 FLR 235 …. 8.45, 24.23 AZ (a Minor) (Abduction: Acquiescence), Re [1993] 1 FLR 682 …. 15.47 Azoff-Don Commercial Bank, Re [1954] Ch 315 …. 24.30

Bank of Credit and Commerce International SA (No 10), Re [1997] Ch 213 …. 24.31 Bank of Tokyo v Karoon [1987] AC 45 …. 4.87 Bank Polska Kasa Opieki Spolka Akcyjna v Zbigniew Opara (2010) 238 FLR 309; [2010] QSC 093 …. 5.46, 5.55, 5.66, 5.67 Bank voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248 …. 8.49 Bankers Trust International Ltd v Todd Shipyard Corporation (The Halcyon Isle) [1981] AC 221 …. 7.50 Bankinvest AG v Seabrook (1988) 14 NSWLR 711 …. 4.59, 4.61, 4.62, 4.64, 4.65, 4.67, 4.68, 4.69, 4.71, 4.73, 23.8 Bannon v Nauru Phosphate Royalties Trust (No 1) [2016] VSC 425 …. 3.19 Bant and Clayton [2015] FamCAFC 222 …. 9.23, 9.24 Barcelo v Electrolytic Zinc Co of Australasia Ltd (1932) 48 CLR 391 …. 12.11, 12.12, 12.24 Barclays Bank Ltd v Piacun [1984] 2 Qd R 476 …. 5.22, 5.46, 5.65 Barker, Re [1995] 2 VR 439 …. 22.31, 22.42, 22.45 Baroda, Maharanee v Wildenstein [1972] 2 QB 283 …. 2.9 Barraclough, Marriage of (1987) 11 Fam LR 773 …. 15.46 Barrie’s Estate, Re 35 NW 2d 658 (1949) …. 22.32 Barriga, In the Marriage of (No 2) (1981) 7 Fam LR 909 …. 13.4, 13.32, 14.32, 14.37, 14.38 Barrios and Sanchez, Marriage of (1989) 13 Fam LR 477 …. 15.71 Barros Mattos Junior v Macdaniels Ltd [2005] EWHC 1323 …. 18.7 Baschet v London Illustrated Standard Co [1900] 1 Ch 73 …. 7.38 Base Metal Trading Ltd v Shamurin [2005] 1 WLR 1157 …. 18.43, 23.22 Basra and Ahmed [2016] FamCA 838 …. 14.21, 14.45, 14.48 Bassi, Marriage of (1994) 17 Fam LR 571 …. 15.54 Bata v Bata [1948] WN 366 …. 2.69 Bateman v Fairfax Media Publications Pty Ltd [2013] ACTSC 72 …. 18.20 — v Service (1881) 6 App Cas 386 …. 23.19

B

B (A Minor) (Abduction), Re [1994] 2 FLR 249 …. 15.40 B (Minors) (Abduction) (No 2), Re (1993) 1 FLR 993 …. 15.31, 15.39 B v B (Minors: Enforcement of Access Abroad) [1988] 1 All ER 652 …. 15.57, 15.59 Baba & Jarvinen (1980) FLC 90-882 …. 16.8 Babcock v Jackson 191 NE 2d 279 (1963) …. 18.3 Bailey, Re [1985] 2 NZLR 656 …. 22.24, 22.34 Bain v Whitehaven Railway Co (1850) 3 HLC 1 …. 7.31 Baindail v Baindail [1946] P 122 …. 13.19, 13.20 Bak & Bak (1980) FLC 90-877 …. 16.8 Baker v Bolton (1808) 1 Camp 493; 170 ER 1033 …. 18.34 Bakri Navigation Co Ltd v ‘Golden Glory’ Glorious Shipping SA (1991) 217 ALR 152 …. 6.14 Baldry v Jackson [1976] 1 NSWLR 19 …. 2.10 — v — [1977] 1 NSWLR 494 …. 18.40 Ballard v Attorney-General (Vic) (2010) 30 VR 413; [2010] VSC 525 …. 19.4, 19.28 Bamgbose v Daniel [1955] AC 107 …. 13.19 Banco de Bilbao v Sancha and Rey [1938] 2 KB 176 …. 23.22 Banco de Vizcaya v Don Alfonso de Borbon y Austria [1935] 1 KB 140 …. 8.41, 8.51 Bank of Africa v Cohen [1909] 2 Ch 129 …. 21.6 xxii



Table of Cases

Bateman and Idameneo (No 123) Pty Ltd v Fairfax Media Publications Pty Ltd [2013] ACTSC 72 …. 9.29 Bater v Bater [1906] P 209 …. 14.50 Bath v British and Malayan Trustees Ltd [1969] 2 NSWR 114; (1969) 90 WN (Pt 1) (NSW) 44 …. 8.46, 22.12 Baxter v RMC Group plc [2003] 1 NZLR 304 …. 2.77 BCBC Singapore Pte Ltd v PT Bayan Resources TBK [2012] WASC 170 …. 2.93, 2.94 Beals v Saldanha [2003] 3 SCR 416 …. 5.21 Beamish v Beamish (1861) 9 HL Cas 274; 11 ER 735 …. 13.26 Beaumont, Re [1893] 3 Ch 490 …. 10.18 Beaver v Master in Equity of the Supreme Court of Victoria [1895] AC 251 …. 20.17 Bedake, In the Estate of [2015] ACTSC 267 …. 10.6, 10.7, 10.22 Belhaj v Straw [2017] AC 964 …. 8.51, 8.69 Bell v Kennedy (1868) LR 1 Sc & Div 307 …. 10.24, 10.27 Bell Group NV (in liq) v Insurance Commission of Western Australia [2017] WASCA 229 …. 4.92 Bellinger v Bellinger (2002) 1 All ER 311 …. 13.11 — v — [2003] 2 AC 467; [2003] 2 WLR 1174 …. 13.6, 13.12 Belyando Shire Council v Rivers [1908] QWN 17 …. 2.50 Bempde v Johnstone (1796) 3 Ves Jun 198; 30 ER 967 …. 10.7, 10.17 Benaim & Co v Debano [1924] AC 514 …. 17.42 Benefit Strategies Group Inc v Prider (2005) 91 SASR 544; [2005] SASC 194 …. 5.29, 8.42, 8.43 Benko, dec’d, Re [1968] SASR 243 …. 10.8, 10.9 Benson v Rational Entertainment Enterprises Ltd [2015] NSWSC 906 …. 2.50, 2.58, 4.14, 4.25 Berchtold, Re [1923] 1 Ch 192 …. 20.18, 20.33 Berezovsky v Abramovich [2010] EWHC 647 …. 19.20, 19.21 — v Michaels [2000] 2 All ER 986 …. 2.74



Berry v Shead (1886) 7 NSWLR 39 …. 10.56 Berthiaume v Dastous [1930] AC 79 …. 13.24 Bethell, Re; Bethell v Hildyard (1888) 38 Ch D 220 …. 13.16 Betts and Hampson [2017] FamCA 107 …. 14.24, 14.45 BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 …. 2.31, 4.59, 4.61, 4.62, 4.69, 4.70, 4.71, 4.72, 4.73, 4.76, 4.79, 7.29, 7.42, 7.44, 7.52 BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725 …. 2.83 — v — [1985] VR 756 …. 17.11 BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169; [2008] FCA 551 …. 6.9, 6.14, 6.20 Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1981] 2 Lloyd’s Rep 446 …. 2.41 Blad v Bamfield (1673) 3 Swans 603; 36 ER 992 …. 1.22 Blair and Jenkins, Marriage of (1988) 12 Fam LR 85 …. 15.73 Bligh & James [2018] FamCA 187 …. 16.10 Blohn v Desser [1962] 2 QB 116 …. 5.15, 5.25 Blonde and Other Ships, The [1921] P 155 …. 20.27 Blue Sky One Ltd v Mahan Air [2010] EWHC 631 …. 8.20, 21.17 Blunden v Commonwealth (2003) 218 CLR 330; [2003] HCA 73 …. 11.17, 18.16 Blyth, Re [1997] 2 Qd R 567 …. 22.42, 22.49 Bodley Head Ltd v Flegon [1972] 1 WLR 680 …. 17.29 Bogart Lingerie Ltd v Steadmark Pty Ltd [2013] VSC 212 …. 4.54 Boissevain v Weil [1950] AC 327 …. 17.38 Bonacina, Re [1912] 2 Ch 394 …. 17.32 Bonython v Commonwealth [1951] AC 201 …. 17.15, 17.37 Booth v Phillips [2004] EWHC 1437 …. 18.16 Borg Warner (Aust) Ltd v Zupan [1982] VR 437 …. 7.17, 12.29 Bourke v State Bank of New South Wales (1988) 85 ALR 61 …. 4.61 Bowling v Cox [1926] AC 751 …. 2.50 Boyle v Sacker (1888) 39 Ch D 249 …. 2.16 Boys v Chaplin [1971] AC 356 …. 7.39, 18.3 xxiii



Private International Law in Australia

BP Australia Ltd v Wales [1982] Qd R 386 …. 2.58 BP plc v National Union Fire Insurance Co [2004] EWHC 1132 …. 17.24 Brabo, The [1949] AC 326 …. 2.41 Bradley v Commonwealth (1973) 128 CLR 557 …. 1.5 Brailey v Rhodesia Consolidated Ltd [1910] 2 Ch 95 …. 9.10 Brassard v Smith [1925] AC 371 …. 20.16 Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1 …. 17.50 — v — (2003) 130 FCR 317; [2003] FCAFC 153 …. 2.40 Brear v James Hardie & Coy Pty Ltd (2000) 50 NSWLR 388; [2000] NSWCA 352 …. 7.48 Breavington v Godleman (1988) 169 CLR 41 …. 1.6, 1.25, 1.29, 7.39, 11.5, 11.8, 11.9, 11.10, 11.11, 11.14, 11.16 Breen & Breen [2014] FamCA 1030 …. 15.16 Bremer v Freeman (1857) 10 Moo PC 306; 14 ER 508 …. 22.36 Bristol-Myers Squibb Co v Superior Court of California, San Francisco County 582 US (2017) …. 2.9 Bristow v Sequeville (1850) 5 Exch 275; 155 ER 118 …. 9.10 British South Africa Co v Companhia de Moçambique [1893] AC 602 …. 2.35, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 16.6, 16.16 — v De Beers Consolidated Mines Ltd [1910] 2 Ch 502 …. 3.9 Brodin v A/R Seljan 1973 SLT 198 …. 18.47 Brook v Brook (1861) 9 HL Cas 193; 11 ER 703 …. 13.22, 13.32 Brooke v Director General, Dept of Community Services (NSW) (2002) 29 Fam LR 121; [2002] FamCA 258 …. 15.40 Brown v Babbit Ford Inc 571 P 2d 689 (1977) …. 1.34 — v Brown [1963] NSWR 1371 …. 14.45 — v Gregson [1920] AC 860 …. 22.29 — v New Zealand Basing Ltd [2018] 1 NZLR 245; [2017] NZSC 139 …. 12.9, 17.10 Browne v Browne [1917] NZLR 425 …. 10.27 Bruce v Bruce (1790) 6 Bro PC 566; 2 ER 1271 …. 10.17, 22.35

Brunel v Brunel (1871) LR 12 Eq 298 …. 10.27 Buchanan v Rucker (1808) 9 East 192; 103 ER 546 …. 5.32 Buckle v Buckle [1956] P 181 …. 13.40 Buckley v Gibbett [1996] 836 FCA 1 …. 4.69 Bulong Nickel Pty Ltd, Re (2002) 42 ACSR 52; [2002] WASC 126 …. 17.11 Bumper Development Corp Ltd v Commissioner of Police of the Metropolis [1991] 4 All ER 638; [1991] 1 WLR 1362 …. 7.36, 23.17 Bunyon v Lewis (No 3) [2013] FamCA 888 …. 10.55, 15.8, 15.12, 15.14, 15.24 Burgess (dec’d), Estate of, Re (2011) 111 SASR 401; [2011] SASC 223 …. 22.4 Burnham v Superior Court of California 495 US 604 (1990) …. 2.9 Burt v Yiannakis [2015] NZHC 1174 …. 3.9, 19.15, 19.27 Bushfield Aircraft Co v Great Western Aviation Pty Ltd (1996) 16 SR (WA) 97 …. 5.17 Busst v Lotsirb Nominees Pty Ltd [2003] 1 Qd R 477; [2002] QCA 296 …. 17.15, 17.23, 17.44, 18.44 Butler, Re [1969] QWN 48 …. 5.71 Buttigeig v Universal Terminal & Stevedoring Corp [1972] VR 626 …. 2.68 Buultjens v Robertson [2010] FCA 134 …. 11.11

C

C v C (Minor Abduction: Rights of Custody Abroad) [1989] 2 All ER 465 …. 15.40, 15.53 C and D (1979) 5 Fam LR 636 …. 13.11 C and P Trading Pty Ltd v Roladuct Spiral Tubing Pty Ltd [1994] 2 Qd R 247 …. 2.26 Cain, In the Marriage of (1987) 11 Fam LR 540; FLC 91-808 …. 14.26, 14.30, 16.14 Caithness, Earl of, Re (1891) 7 TLR 354 …. 22.33 Caldwell v Caldwell [1946] SASR 185 …. 10.56 Callum & Favre [2016] FamCA 487 …. 15.15 Cambridge Credit Corp Ltd v Lissenden (1987) 8 NSWLR 411 …. 20.10

xxiv



Table of Cases

Cammell v Sewell (1860) 5 H & N 728; 157 ER 1371 …. 18.42, 20.8, 21.10 Canadian Pacific Railway Co v Parent [1917] AC 195 …. 7.13, 18.47 Canavan, Re (2017) 349 ALR 534; [2017] HCA 45 …. 10.49, 10.52, 12.14 Cannon v Cannon [2005] 1 Fam LR 169 …. 15.42 Cape & Cape (2013) 50 Fam LR 1; [2013] FamCAFC 114 …. 15.1 Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd (2013) 298 ALR 666; [2013] WASCA 66 …. 4.22, 6.6, 6.8 Carey v Australian Broadcasting Corp (2010) 77 NSWLR 136; [2010] NSWSC 709 …. 18.20 Cariaga v Eighth Judicial District Court 762 P 2d 886 (1988) …. 2.9 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 …. 5.40, 23.22 Carron Iron Co v Maclaren (1855) 5 HLC 416; 10 ER 961 …. 4.87 Casaceli v Natuzzi SpA (2012) 292 ALR 143; [2012] FCA 691 …. 6.5, 6.6 Casdagli v Casdagli [1918] P 89 …. 8.19 Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd (No 2) [2012] FCA 1214 …. 6.38 — v TCL Airconditioner (Zhongshan) Co Ltd [2013] VSC 92 …. 2.43 Castree v ER Squibb & Sons Ltd [1980] 2 All ER 589 …. 2.68 Castrique v Imrie (1870) LR 4 HL 414 …. 5.18, 14.50 Caterpillar Financial Services Corp v SNC Passion [2004] 2 Lloyd’s Rep 99 …. 17.40 Catterall v Catterall (1847) 1 Rob Eccl 580; 163 ER 1142 …. 13.26, 13.28 Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365 …. 2.41 Central Petroleum Ltd v Geoscience Resource Recovery LLC [2017] QSC 223 …. 4.14, 4.54, 5.41 Centrebet Pty Ltd v Baasland (2012) 272 FLR 69; [2012] NTSC 100 …. 2.52, 2.76, 4.54 Century Credit Corp v Richard (1962) 34 DLR (2d) 291 …. 21.13, 21.14

Chaff and Hay Acquisition Committee v JA Hemphill and Sons Pty Ltd (1947) 74 CLR 375 …. 1.6, 7.36, 11.1 Challenor v Douglas [1983] 2 NSWLR 405 …. 2.78 Chamberlain v Chamberlain 43 NY 424 at 434 (1870) …. 22.41 Chan Wing (Vanuatu) Ltd v Motis Pacific Lawyers [1998] VUCA 3 …. 4.47 Chandra and Alhoub [2015] FamCA 77 …. 14.4, 14.26 Chang, Marriage of (1992) 15 Fam LR 629 …. 15.28 Chapman and Jansen, Re (1990) 13 Fam LR 853 …. 4.62, 4.69 Chappell’s Estate, Re 213 P 684 (1923) …. 22.41 Charron v Montreal Trust Co (1958) 15 DLR (2d) 240 …. 17.29 Charter Pacific Corp Ltd v Commonwealth Scientific & Industrial Research Organisation [1998] FCA 1362 …. 4.69 Chase Manhattan Bank NA v Israel-British Bank (London) Ltd [1981] Ch 105 …. 19.17 Chatenay v Brazilian Submarine Telegraph Co Ltd [1891] 1 QB 79 …. 17.17 Chen v Lu [2014] NSWSC 1053 …. 22.34 Chen and Tan [2012] FamCA 225 …. 16.6 Cheni v Cheni [1965] P 85 …. 13.15 Chenoweth v Summers (1941) 47 ALR (CN) 364a …. 2.50 Chicago Bridge and Iron Constructors Pty Ltd v Sarvanidis (1986) 44 SASR 418 …. 2.41 Chichester v Marquis and Marchioness of Donegal (1822) 1 Add 5; 162 ER 2 …. 10.20 Child Support Registrar & Higgins [2016] FamCAFC 2 …. 16.9 Chow Cho Poon (Private) Ltd, Re (2011) 80 NSWLR 507; [2011] NSWSC 300 …. 24.7, 24.23 Chubb Insurance Co of Australia Ltd v Moore (2013) 302 ALR 101; [2013] NSWCA 212 …. 12.13 Citibank Ltd v Nobes (1993) 15 Qld Lawyer Reps 9 …. 2.33 xxv





Private International Law in Australia

City of Detroit v Proctor 61 A 2d 412 (1948) …. 1.7, 11.1 City of Swan v McGraw-Hill Companies, Inc (2014) 99 ACSR 280; [2014] FCA 442 …. 2.16 CJ CGV Co Ltd, Re (2013) 281 FLR 390; [2013] VSC 656 …. 8.47 Clague v Graves (1987) 11 Fam LR 494 …. 15.71 Claim by Helbert Wagg & Co Ltd, Re [1956] Ch 323 …. 8.51, 17.11 Clark, Re [1904] 1 Ch 294 …. 20.16 Clark v Clark 222 A 2d 205 (1966) …. 1.29 Clarke v Clarke [1964] VR 773 …. 10.60 Clayton v Bant (No 2) [2015] FamCA 102 …. 14.4, 16.4, 16.8 Clements v Macaulay (1866) 4 Macph 583 …. 22.6 Clivpee Ltd (in admin), Re [2010] NSWSC 1215 …. 23.8 Close v Arnot [1997] NSWSC 569 …. 5.12, 5.29 Club Mediterranée NZ v Wendell [1989] 1 NZLR 216 …. 4.38 Club Resorts Ltd v Van Breda [2012] 1 SCR 572 …. 4.38 Clunies-Ross; Ex parte Tottendell, Re (1987) 72 ALR 241 …. 3.4 Clurname Pty Ltd v McGraw-Hill Financial, Inc [2017] FCA 1319 …. 2.75 Clyne v Federal Commissioner of Taxation (No 2) (1981) 57 FLR 198 …. 9.10 CMA CGM SA v Ship ‘Chou Shan’ (2014) 311 ALR 234; [2014] FCAFC 90 …. 18.16 Coast Lines v Hudig & Veder Chartering NV [1972] 2 QB 34 …. 17.17, 17.18 Cohen v Rothfield [1919] 1 KB 410 …. 4.53 Cohn, Re [1945] Ch 5 …. 7.33 Coleman v Shang [1961] AC 481 …. 13.19 Colin Joss & Co Pty Ltd v Cube Furniture Pty Ltd [2015] NSWSC 735 …. 6.38 Collens, Re [1986] Ch 505 …. 22.18 Collier v Rivaz (1841) 2 Curt 855; 163 ER 608 …. 8.13, 8.14, 8.15, 8.19 Colonial Bank v Cady (1890) 15 App Cas 267 …. 21.31 Colosseum Investment Holdings Pty Ltd v Vanguard Logistics Services Pty Ltd [2005] NSWSC 803 …. 2.77

Colt Industries Inc v Sarlie [1966] 1 All ER 673 …. 2.9 — v — (No 2) [1966] 3 All ER 85 …. 5.22 Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCAFC 192 …. 4.23, 6.2, 6.5, 6.6, 6.7, 6.13 Commissioner for Stamp Duties v Salting [1907] AC 449 …. 20.17 Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694 …. 20.18, 20.19 Commissioner of Stamps v Hope [1891] AC 476 …. 20.11, 20.14, 20.28 Commonwealth v Australian Capital Territory (2013) 250 CLR 441; [2013] HCA 55 …. 13.1, 13.7, 13.8, 13.9, 13.10, 13.14, 13.20, 13.27 — v Woodhill (1917) 23 CLR 482 …. 3.3, 3.7 — v Yarmirr (2001) 200 CLR 1 …. 20.6 Commonwealth Agricultural Service Engineers Ltd, Re [1928] SASR 342 …. 9.29 Commonwealth Bank v White (No 2) [2004] VSC 268 …. 4.28 Commonwealth Bank of Australia v White [1999] 2 VR 681; [1999] VSC 262 …. 2.76, 4.14, 4.18, 4.91 — v — (No 4) [2001] VSC 11 …. 4.91 Commonwealth Central Authority & Cavanaugh [2015] FamCAFC 233 …. 15.31 Compagnie D’Armement Maritime SA v Compagnie Tunisienne De Navigation SA [1971] AC 572 …. 17.11, 17.14 Compagnie des Messageries Maritimes v Wilson (1954) 94 CLR 577 …. 4.10, 4.28 Compagnie Tunisienne de Navigation SA v Compagnie d’Armement Maritime SA [1971] AC 572 …. 6.19 Compania Merabello San Nicholas SA, Re [1973] Ch 75 …. 24.28 Compania Naviera Vascongado v Steamship ‘Cristina’ [1938] AC 485 …. 20.9 Conlon v Mohammed [1987] ILRM 5623 …. 13.23 Connelly v RTZ Corp Plc [1998] AC 854 …. 4.35 Constantinou, Re [2013] 2 Qd R 219; [2012] QSC 332 …. 3.10

xxvi



Table of Cases

Continental Bank NA v Aeokas Compania Naviera SA [1994] 2 All ER 540 …. 4.87 Contractors Ltd v MTE Control Gear Ltd [1964] SASR 47 …. 4.16 Coode, In the Goods of (1867) LR 1P&D 449 …. 2.88 Cooper v Cooper’s Trustees (1888) 15 R (HL) 21 …. 13.32 — v Casey (1995) 18 Fam LR 433 …. 10.64, 15.31 Cooper-King v Cooper-King [1900] P 65 …. 9.10 Copin v Adamson (1874) LR 9 Ex 345 …. 23.25 — v — (1875) 1 Ex D 17 …. 23.25 Coppin v Coppin (1725) 2 P Wms 291 …. 22.19 Corbett v Corbett [1957] 1 All ER 621 …. 14.35, 14.42 — v — [1971] P 83 …. 13.6, 13.11 Corcoran v Corcoran [1974] VR 164 …. 18.4 Cordoba Shipping Co Ltd v National State Bank [1984] 2 Lloyd’s Rep 91 …. 2.75 Corin v Corin (1971) 7 SR (WA) 124 …. 15.18 Corvisy v Corvisy [1982] 2 NSWLR 557 …. 3.3 Coupland v Arabian Gulf Petroleum Co [1983] 1 WLR 1136 …. 18.43 Courtice v Australian Electoral Commission (1990) 95 ALR 297 …. 2.30 Courtney, Re; Ex parte Pollard (1840) Mont & Ch 239 …. 21.7 Cox v Ergo Versicherung AG [2014] AC 1379 …. 7.44, 18.34 CPPIB Credit Investments Inc v Ren [2017] NSWSC 771 …. 14.26 Craig v Allstate Insurance Co of Canada (2002) 214 DLR (4th) 103 …. 7.41 Crawford (dec’d), Estate of, Re (2004) 90 SASR 119; [2004] SASC 370 …. 22.31, 22.45 Crick v Hennessy [1973] WAR 74 …. 5.20 Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22; 62 ALR 1 …. 2.19 Crumpler v Global Tradewaves Ltd (in liq) [2013] FCA 1127 …. 24.11

Crumpton’s Judicial Factor v Finch-Noyes 1918 SC 378 …. 10.18, 10.22 Cruse v Chittum [1974] 2 All ER 940 …. 10.63 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 …. 4.54, 4.82, 4.83, 4.84, 4.85, 4.86, 4.87, 4.89, 4.90, 16.8 — v Thompson (2003) 59 NSWLR 77 …. 7.40 Cuban Atlantic Sugar Sales Corp v Compania de Vapores San Elefterio (C/V) Lda [1960] 1 QB 187 …. 2.58 Cunnington, Re [1924] 1 Ch 68 …. 22.42 Currie, Will of (1899) 25 VLR 224 …. 12.18, 20.15 Cutcliffe, Re [1940] Ch 565 …. 20.3 Czernikow Ltd v Rolimpex [1979] AC 351 …. 3.16

D

D (a Child), Re [2005] UKHL 51 …. 15.48 D, an Infant, Re [1943] Ch 568 …. 15.18 D R Insurance Co v Central National Insurance Co [1996] 1 Lloyd’s Rep 74 …. 2.50 Dagi v Broken Hill Proprietary Co Ltd (No 2) [1997] 1 VR 428 …. 3.4 Dahms v Brandsch (1911) 13 CLR 336 …. 2.19 Daler and Ehan [2014] FamCA 741 …. 14.40 Dalhousie, Countess of v M’Douall (1840) 7 Cl & F 817; 7 ER 1279 …. 10.17, 10.18 D’Almeida Araujo Lda v Sir Frederick Baker & Co Ltd [1953] 2 QB 329 …. 7.39 Dalrymple v Dalrymple (1811) 2 Hag Con 54; 161 ER 665 …. 1.22, 13.22 Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87 …. 9.3, 9.4, 9.8, 9.10, 19.27 Dampskibsselskabet Norden A/S v Beach Building and Civil Group Pty Ltd (2013) 216 FCR 469; [2013] FCAFC 107 …. 6.13 Daralievski v Transport Accident Commission [2003] SADC 30 …. 4.79 Darcy v Medtel Pty Ltd (No 3) [2004] FCA 807 …. 7.49

xxvii





Private International Law in Australia

Darrell Lea Chocolate Shops Pty Ltd v Spanish-Polish Shipping Co Inc (1990) 25 NSWLR 568 …. 2.77 Das v George Weston Ltd [2017] ONSC 4129 …. 7.41, 8.64 D’Ath v TNT Australia Pty Ltd [1992] 1 Qd R 369 …. 2.68 David Syme and Co Ltd (Rec and Mgr Appt’d) v Grey (1992) 115 ALR 247 …. 2.31, 2.32, 2.33, 2.34, 2.35, 12.31, 12.34, 12.35, 12.36 Davidson v Global Investments International Ltd (1995) 19 ACSR 89 …. 24.25 Davies v Davies (1915) 24 DLR 737 …. 22.33 Davis v Turning Properties Pty Ltd (2005) 222 ALR 676 …. 5.24 Dawn Jade Ltd v Himanshu Girdhar Dua [2014] NSWSC 1085 …. 5.51, 9.2, 9.5 Dawson v Baker (1994) 120 ACTR 11 …. 4.61, 4.62, 4.69 — v Perpetual Trustee Co Ltd (1953) 89 CLR 138 …. 3.9 De Beeche v South American Stores Ltd [1935] AC 148 …. 9.10 De Dampierre v De Dampierre [1988] AC 92 …. 14.6 De L v Director-General, New South Wales Dept of Community Services (1996) 187 CLR 640 …. 15.29, 15.44 De Reneville v De Reneville [1948] P 100 …. 7.20, 13.31, 13.33 De Santis v Russo (2001) 27 Fam LR 414; [2001] QSC 065 …. 5.29, 5.34, 5.57, 8.58 — v — [2002] 2 Qd R 230; [2001] QCA 457 …. 5.58 De Thoren v Attorney-General (1876) 1 App Cas 686 …. 7.33 De Virte, Re [1915] 1 Ch 920 …. 22.29 Deer Park Engineering Pty Ltd v Townsville Harbour Board (1974) 5 ALR 131 …. 2.52, 2.58 DEF and the Protected Estates Act 1983, Re (2005) 192 FLR 92; [2005] NSWSC 534 …. 2.35, 5.69, 5.71 Denpro Pty Ltd v Centrepoint Freeholds Pty Ltd (1983) 48 ALR 39 …. 2.30 Department of Family and Community Services v Raelson [2014] FamCA 131 …. 10.69

Dept of Communities & Clementine [2010] FamCA 746 …. 15.39 Dept of Communities, Child Safety and Disability Services and Garning (Discharge Application) [2012] FamCA 839 …. 15.33 Dept of Health and Community Services v Casse (1995) 19 Fam LR 474 …. 15.31, 15.47 Deputy Commissioner of Taxation v Ahern [1986] 2 Qd R 342 …. 2.46 Despina GK, The [1983] 1 All ER 1 …. 5.18 Desputeaux v Editions Chouette 2003 SCC 17 …. 6.5 D’Etchegoyen v De’Etchegoyen (1883) 13 PD 132 …. 10.27 Deutsche National Bank v Paul [1898] 1 Ch 283 …. 2.85 Deutsche Schachtbau-und Tiefbohrgesellschaft mbH v Shell International Petroleum Co Ltd (No1&2) [1990] 1 AC 295 …. 6.17, 6.20 Dewar v Maitland (1866) LR 2 Eq 834 …. 22.29 Di Mento v Visalli [1973] 2 NSWLR 199 …. 13.31 Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230 …. 18.46 Diamond v Bank of London and Montreal Ltd [1979] QB 333 …. 2.41, 2.75 Dimskal Shipping Co SA v International Transport Workers Federation (The Evia Luck (No 2)) [1992] 2 AC 152 …. 17.33 Director-General, Department of Communities, Child Safety and Disability Services v Tallulah [2015] FamCA 4 …. 10.70 — v Williams [2016] FamCA 227 …. 10.69 Director-General, Department of Communities, Child Safety and Disability Services & Ibbott (No 2) [2015] FamCA 698 …. 10.63, 10.69, 15.40 Director-General, Department of Communities, Child Safety and Disability Services and Sabeer [2017] FamCA 252 …. 10.69 Director-General, Department of Communities (Child Safety Services) v Hardwick [2011] FamCA 553 …. 10.63, 10.68

xxviii



Table of Cases

Director-General, Dept of Families v RSP (2003) 30 Fam LR 566; [2003] FamCA 623 …. 15.51 Director-General, Dept of Family and Community Services v Raddison (2012) 46 Fam LR 567; [2012] FamCAFC 41 …. 15.57 Director-General of Family and Community Services (NSW) & Davis (1990) 14 Fam LR 381 …. 15.53 Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458 …. 2.64, 2.65, 2.66, 2.68, 18.10 Dobson & Van Londen (2005) FLC 93-225 …. 16.8 Dockpride Pty Ltd v Subiaco Redevelopment Authority [1999] FCA 133 …. 4.69 Doe v Howard [2015] VSC 75 …. 5.22, 5.30, 8.43 Dohm & Acton [2008] FamCA 482 …. 13.52 Donnelly, Re (1927) 28 SR (NSW) 34 …. 22.34 Donohue v Armco Inc [2002] 1 Lloyd’s Rep 425 …. 4.90 Dornoch Ltd v Westminster International BV (The WD Fairway) [2009] 2 Lloyd’s Rep 191 …. 8.20, 20.9, 21.17 Dornom, Marriage of [1984] FLC 91-556 …. 14.32 Dost Aly Khan, Goods of (1880) 6 PD 6 …. 22.10 Douez v Facebook, Inc [2017] SCC 33 …. 4.26 Douglas v Longano (1981) 147 CLR 212 …. 10.11 — v Philip Parbury & Associates [1999] WASC 15 …. 4.48, 4.69, 4.75 Douglas Financial Consultants Pty Ltd v Price [1992] 1 Qd R 243 …. 21.14, 21.15 Douglas Webber Events Pty Ltd, Re (2014) 291 FLR 173; [2014] NSWSC 1544 …. 4.9, 4.18, 4.56, 23.10 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 …. 2.66, 2.70, 2.71, 2.72, 2.73, 2.74, 2.77, 2.79, 4.46, 4.51, 5.3, 18.11, 18.15 Downing v Al Tameer Establishment [2002] EWCA Civ 721 …. 6.14

DP v Commonwealth Central Authority (2001) 206 CLR 401; [2001] HCA 39 …. 15.29, 15.31, 15.40, 15.45, 15.48, 15.49, 15.55, 15.56 Drew Brown Ltd v The Orient Trader (1972) 34 DLR (3d) 339 …. 17.42 Drews v Insurance Corp of British Columbia (1998) 55 BCLR (3d) 281 …. 18.43 Drill-Tec GmbH Grossbohr-undUmwelttechnik v Campbell [2002] NSWSC 1173 …. 2.16 Dryden v Dryden (1876) 2 VLR (E) 74 …. 9.12 Du Bray v McIlwraith [2009] NSWSC 888 …. 3.8 Dubai Electricity Co v Islamic Republic of Iran Shipping Lines [1984] 2 Lloyd’s Rep 380 …. 17.24 Duckworth v Jamison (2014) 51 Fam LR 471; [2014] FamCA 308 …. 15.8, 15.15 Duff v R (1979) 28 ALR 663 …. 3.29, 3.31 Dukov v Dukov [1969] QWN 9 …. 13.29 Duleep Singh, Re (1890) 6 TLR 385 …. 10.18 Dulles’ Settlement (No 2), Re; Dulles v Vidler [1951] Ch 842; [1951] 2 All ER 69 …. 2.15, 2.16, 5.20 Dunbee v Gilman and Co (Australia) Pty Ltd [1968] 2 Lloyd’s Rep 394 …. 5.15 Duncan v Lawson (1889) 41 Ch D 394 …. 20.25, 22.24 Durie’s Trustees v Osborne [1960] SC 444 …. 22.42, 22.54 Durra v Bank of New South Wales [1940] VLR 170 …. 2.50 Dutton v Howell (1693) Shower 24; 1 ER 17 …. 1.22 Dyer v Dyno Nobel Asia Pacific Ltd [2003] NSWSC 213 …. 7.49 Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] 1 NZLR 289 …. 9.11 Dynasty Ptd Ltd v Coombs (1995) 13 ACLC 1290 …. 23.12 Dyno Wesfarmers Ltd v Knuckey [2003] NSWCA 375 …. 7.49, 9.2, 9.5, 18.34 xxix





Private International Law in Australia Engel v Adelaide Hebrew Congregation Inc (2007) 98 SASR 402; [2007] SASC 234 …. 17.1 English v Donnelly [1958] SC 494 …. 17.13 English, Scottish and Australian Chartered Bank, Re [1893] 3 Ch 385 …. 24.31 English’s Coasting and Shipping Co Ltd v British Finance Co Ltd (1886) 14 R 220 …. 5.49 Ennstone Building Products Ltd v Stanger Ltd [2002] 1 WLR 3059 …. 17.35 Entores Ltd v Miles Far East Corp [1955] 2 QB 327 …. 2.52 Erie Beach Co Ltd v Attorney-General for Ontario [1930] AC 161 …. 20.16 Eriez Magnetics Pty Ltd v Duro Felguera Australia Pty Ltd [2017] WASC 304 …. 6.6 Esal (Commodities) Ltd v Pujara [1989] 2 Lloyd’s Rep 479 …. 2.16 ESCO Corp v Bradken Resources Pty Ltd (2011) 282 ALR 282; [2011] FCA 905 …. 6.36 Esmore & Esmore (1979) FLC 90-711 …. 16.8 Estate Grundy; La Valette v ChambersGrundy [2018] NSWSC 104 …. 2.15, 22.48 Estate of Constantinou (decd), Re [2013] 2 Qd R 219; [2012] QSC 332 …. 19.4, 19.20, 19.21 Eurogold Ltd v Oxus Holdings [2007] FCA 811 …. 4.29 Evans v Burrell (1859) 28 LJP & M 82 …. 22.4 — v European Bank Ltd (2004) 61 NSWLR 75; [2004] NSWCA 82 …. 8.55 EWC Payments Pty Ltd v Commonwealth Bank of Australia (No 2) [2014] VSC 4 …. 21.36 Excalibur Ventures LLC v Texas Keystone Inc [2013] EWHC 2767 …. 19.5 Exportrade Corp v Irie Blue New Zealand Ltd [2013] NZCA 675 …. 4.38 Eyre v Nationwide News Pty Ltd [1967] NZLR 851 …. 2.41, 2.69

E

E (Children) (Abduction: Custody Appeal), Re [2012] 1 AC 144 …. 15.51 E (D), Re [1967] Ch 761 …. 15.70 E I Du Pont de Nemours & Co & Endo Labs Inc v Agnew & Kerr [1987] 2 Lloyd’s Rep 585 …. 17.23, 17.24 Earthworks and Quarries Ltd v FT Eastment and Sons Pty Ltd [1966] VR 24 …. 2.50, 2.58 Easterbrook v Easterbrook [1944] P 10 …. 13.39 Ebbage v Manthey [2001] QSC 004 …. 23.21 Edmunds v Simmonds [2001] 1 WLR 1003 …. 7.41 Efax Pty Ltd v Sonray Capital Markets Pty Ltd (in liq) (2011) 84 ACSR 195; [2011] NSWSC 554 …. 23.8 Egbert v Short [1907] 2 Ch 205 …. 4.33 Eisenwerk v Australian Granites Ltd [2001] 1 Qd R 461 …. 6.14 EJK v TSL (2006) 35 Fam LR 559; [2006] FamCA 730 …. 15.27 Ekran OAO v Magneco Metrel UK Ltd [2017] EWHC 2208 (Comm) …. 6.32 El Condado, The (1939) 63 Lloyd’s L Rep 330 …. 8.49 El Oueik, In the Marriage of (1977) 29 FLR 171 …. 8.58, 10.60, 14.47, 14.48 Eldaleh [2016] FamCA 1103 …. 13.52 Elderslie Finance Corp Ltd v New Page Pty Ltd (No 5) [2007] FCA 961 …. 24.24 Electra Air Conditioning BV v Seeley International Pty Ltd [2008] FCAFC 169 …. 6.6 Electro Optic Systems Pty Ltd v State of New South les (2012) 273 FLR 304; [2012] ACTSC 184 …. 18.11 Elliott v Bali Bungy Co [2002] NSWSC 906 …. 18.34 Ellis, the Estate of [2017] NTSC 56 …. 22.36, 22.37 Emajor v Emajor [2016] NZHC 2022 …. 5.29 Emanuel v Symon [1908] 1 KB 302 …. 5.19, 5.57 Emin v Yeldag [2002] 1 FLR 956 …. 8.38 Eng Liat Kiang v Eng Bak Hern [1995] 3 SLR 97 …. 4.38

F

F (a minor), Re [1992] 1 Fam LR 548 …. 15.37 F (a minor), Re [1995] Fam 224 …. 15.37 xxx



Table of Cases

F (Hague Convention: Child’s Objections), Re (2006) 36 Fam LR 183; [2006] FamCA 685 …. 15.54 FAI General Insurance Co Ltd v Ocean Marine Mutual Protection & Indemnity Association Ltd (1997) 41 NSWLR 559 …. 4.14 — v — (1997) 41 NSWLR 117 …. 4.16 Farnell and Chanbua [2016] FCWA 17 …. 10.13 Faxtech Pty Ltd v ITL Optronics Ltd [2011] FCA 1320 …. 4.15, 4.18 Featherstone Resources Ltd, Re; Tetley v Weston (2014) 288 FLR 265; 101 ACSR 394 [2014] NSWSC 1139 …. 4.56 Federal Finance & Mortgage Ltd v Winternitz SC(NSW), Sully J, 9 November 1989, unreported …. 5.19 Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International BV (No 3) (2013) 300 ALR 741; [2013] FCA 85 …. 5.34 Felixstowe Dock & Railway Co v United States Lines Inc [1989] QB 360 …. 5.20 Fenston’s Settlement, Re [1971] 3 All ER 1092 …. 22.53, 22.54 Fenton v Fenton [1957] VR 17 …. 14.38 Fernandez v Perez [2012] NSWSC 1242 …. 9.24 Ferrier-Watson and McElrath, Marriage of (2000) 155 FLR 311; [2000] FamCA 219 …. 10.4, 10.7, 10.20, 10.24, 10.27, 14.8 Ferreira v Stockinger [2015] NZHC 2916 …. 10.29 Ferris v Plaister (1994) 34 NSWLR 474 …. 6.13 Fertico v Murray River Corn [2002] SADC 89 …. 4.79 Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32 …. 17.3 Fielding v Doran (1984) 60 ALR 342 …. 2.23 Filter Solutions Ltd v Donaldson Australia Pty Ltd [2006] NZHC 762 …. 7.31 Finlay v Finlay (1885) 23 SLR 584 …. 16.7 Finnish Marine Insurance Co Ltd v Protective National Insurance Co [1990] 1 QB 1078 …. 2.16, 2.50, 2.60

Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31 …. 3.22, 3.27 Flaherty v Girgis (1985) 4 NSWLR 248 …. 2.77, 2.78 — v — (1987) 162 CLR 574 …. 2.3, 2.25, 2.77, 2.78 Fleming v Marshall (2011) 279 ALR 737; [2011] NSWCA 86 …. 2.60, 9.19, 9.20, 17.17, 17.54, 19.8 Fletcher Steel v Moghe [2006] NSWSC 425 …. 5.17 Flint Ink NZ Ltd v Huhtamaki Australia Pty Ltd [2014] VSCA 166 …. 6.5, 6.10, 6.11 Foley v Farquharson [2003] FLC 93; [2003] QSC 021 …. 4.60 Folliott v Ogden (1789) 1 H Bl 123; 126 ER 75 …. 8.51 Fordyce v Bridges (1848) 2 Ph 497; 41 ER 1035 …. 22.41 Forsikringsaktieselskapet Vesta v Butcher [1988] 2 All ER 43 …. 8.3, 17.25 Foster v Driscoll [1929] 1 KB 470 …. 8.62, 17.40 — v Skilled Communication Services Pty Ltd [2003] QCA 363 …. 18.44 Four Seasons Holdings Inc v Brownlie [2017] UKSC 80 …. 17.17 Francis v Emijay Pty Ltd [2006] 2 Qd R 5; [2006] QCA 062 …. 18.44 Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 …. 4.22, 6.5 Fraser v Fraser [2017] NZHC 1055 …. 4.56 Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418 …. 12.17, 17.12 Freke v Lord Carbery (1873) LR 16 Eq 461 …. 20.2, 20.25, 22.24 Freme v Clement (1881) 18 Ch D 499 …. 22.49 Fremlin v Fremlin (1913) 16 CLR 212 …. 10.15 Friedrich v Friedrich 982 F 2d 1396 (1992) …. 15.31 — v — 78 F 2d 1060 (1996) …. 15.51 Fry, Re [1946] Ch 312 …. 21.31 Fulcrum Securities Ltd v Lake [2009] NSWSC 1202 …. 5.52

xxxi





Private International Law in Australia

Fuld’s Estate (No 3), Re [1968] P 675 …. 7.33, 10.25, 10.27, 22.38, 22.40 Fuller v K & J Trucks Coffs Harbour Pty Ltd (2006) 67 NSWLR 516 …. 7.40 Fullford v Pearson [2004] NSWSC 150 …. 7.49 Furse, dec’d, Re [1980] 3 All ER 838 …. 10.25

G

G, Re [1966] NZLR 1028 …. 10.22 G (a Minor) (Enforcement of Access Abroad), Re [1993] Fam 216 …. 15.57 G v G (1985) 10 Fam LR 718 …. 5.69 — v P [1977] VR 44 …. 10.11 G McG v DW (No 1) [2000] 1 ILRM 107 …. 14.35 Gainsford v Tannenbaum (2012) 216 FCR 543; [2012] FCA 904 …. 24.9, 24.22 Gallagher, Re (2018) 355 ALR 1; (2017) 349 ALR 534 …. 10.49, 10.50, 10.52 Gambier v Gambier (1835) 7 Sim 263; 58 ER 838 …. 10.20 Gandhi v Patel [2002] 1 FLR 603 …. 13.43 Gardner v Wallace (1995) 184 CLR 95 …. 2.19, 2.21, 2.23 Gargan v Gargan [1999] QSC 316 …. 4.60 Gem Plastics Pty Ltd v Satrex Maritime (Pty) Ltd (1995) 8 ANZ Ins Cas 61-283 …. 4.16 Genish-Grant v Director-General, Dept of Community Services (2002) 29 Fam LR 51 …. 15.52 Gereis v Yagoub [1997] 1 FLR 854 …. 13.43 Ghosh v D’Rozario [1963] 1 QB 106 …. 3.33 Giedo van der Garde BV v Sauber Motorsport AG [2015] VSC 80 …. 6.5, 6.38 Gienar v Meyer (1796) 2 H Bl 603; 126 ER 728 …. 17.7 Gilmore, In the Marriage of [1993] FamCA 3 …. 16.16 Gilmore v Gilmore [1993] FLC 92-353 …. 14.6, 16.7, 16.10, 16.14 — v — [1993] NZFLR 561 …. 16.10 Gimli Auto Ltd and Eagle Ridge Pontiac Buick GMC v BDO Dunwoody Ltd (Trustee) and Canada Campers Inc 1998 ABCA 154 …. 21.12

Glasson v Scott (1973) 1 ALR 370 …. 15.18 Glencore International AG v Metro Trading Inc [2001] 1 Lloyd’s Rep 284 …. 8.20, 18.42, 21.9, 21.10, 21.11, 21.17, 21.20 Global Container Lines Ltd v Bonyad Shipping Co [1999] 1 Lloyd’s Rep 287 …. 23.17 Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) (2010) 79 ACSR 383; [2010] NSWCA 196 …. 4.23, 4.24, 4.25 Godfrey v Demon Internet [2001] QB 201 …. 2.71 Godleman v Breavington [1987] VR 645 …. 11.8 Goenaga, Re [1949] P 367 …. 22.10 Goetschius v Brightman 156 NE 660 (1927) …. 18.42 Golden Acres Ltd v Queensland Estates Pty Ltd [1969] Qd R 378 …. 12.17, 17.10, 17.12 Goldsborough Mort & Co Ltd v Hall [1948] VLR 145 …. 17.37 Goliath Portland Cement Co Ltd v Bengtell (1994) 33 NSWLR 414 …. 12.20 Gomez v Gomez-Monche Vives [2008] EWCA Civ 1065 …. 19.20 Gonzalez v Agoda Co Pte Ltd [2017] NSWSC 1133; [2017] NSWSC 1133 …. 4.14, 4.26, 17.51 Goodwin v United Kingdom (2002) 35 EHRR 18 …. 13.12 Gordhan v Kerdemelidis [2011] NZHC 1808 …. 5.29 — v — [2013] NZHC 566 …. 5.17 Gore v Octahim Wise Ltd [1995] 2 Qd R 242 …. 7.10, 7.11 Gorton v Australian Broadcasting Commission (1973) 22 FLR 181 …. 2.69, 18.20 Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463 …. 11.10, 11.23, 11.24 Gould v Brown (1998) 193 CLR 346; [1998] HCA 6 …. 2.29, 23.1 Government of India v Taylor [1955] AC 491 …. 5.67, 8.45, 8.47 Grace v Macarthur 170 F Supp 442 (1959) …. 2.9 Graeme Mason v Murray’s Charter Coaches and Travel Services Pty Ltd (1998) 88 FCR 308; [1998] FCA 1430 …. 7.48

xxxii



Table of Cases

Gramophone Co Ltd v Magazine Holder Co (1911) 28 RPC 221 …. 9.3 Gray v Formosa [1963] P 259 …. 8.63, 14.47, 14.48 Gray Eisdell Timms Pty Ltd v Combined Auctions Pty Ltd (1995) 17 ACSR 303 …. 23.12 Graziano v Daniels (1991) 14 Fam LR 697 …. 15.42, 15.45, 15.56 Greenfield, Re [1985] 2 NZLR 662 …. 22.48 Greenfield and Dawson, Marriage of (1984) 9 Fam LR 606 …. 15.75 Gregg v Perpetual Trustee Co (1918) 18 SR (NSW) 252 …. 21.4, 21.6, 21.7 Gresham Property Investments Ltd v Global Consulting Services Pty Ltd [2016] NSWSC 415 …. 4.74 Griffith v Australian Broadcasting Corp [2002] NSWSC 86 …. 7.49 Grissom v Grissom [1949] QWN 52 …. 14.45 Groos, Re [1915] 1 Ch 572 …. 22.40 Grosvenor, Re [2017] FamCA 366 …. 15.74 Grummett v Grummett (1965) 7 FLR 415 …. 14.13 Grzybowicz v Grzybowicz [1963] SASR 62 …. 13.29 Gsponer v Johnstone (1988) 12 Fam LR 755 …. 15.53 Guardian of Matt v Barber (2002) 216 DLR (4th) 574 …. 18.41 Gumbrell v Jones [2001] NZFLR 593 …. 15.33, 15.59 Gutnick v Indian Farmers Fertiliser Cooperative Ltd [2016] VSCA 5 …. 6.38 Guzowski v Cook (1981) 149 CLR 128 …. 2.23

H

H, Re [2000] 2 All ER 1 …. 15.40 H, Re [2000] 2 Fam LR 51 …. 15.42 H (Abduction: Custody Rights), Re [1991] 2 AC 476 …. 15.39 H v S [2015] NZHC 310 …. 8.62, 21.11 H and H [1985] FLC 91-640 …. 15.40 Hackford v Hackford [2015] FamCA 415 …. 15.74 Hagen, The [1908] P 189 …. 2.41 Hall v Australian Capital Territory Electricity Authority [1980] 2 NSWLR 26 …. 2.68, 2.83

Hallen v Angledal [1999] NSWSC 552 …. 6.36 Halpern v Halpern [2008] QB 195 …. 17.1 Halvard, Re [2016] FamCA 1051 …. 15.74 Hamilton v Hamilton [2016] EWHC 1132 …. 7.23 — v Merck & Co Inc (2006) 66 NSWLR 48; [2006] NSWCA 55 …. 7.24, 7.51, 18.27 Hamilton-Irvine, Re (1990) 94 ALR 428 …. 4.66 Hamza v Minister for Justice, Equality and Law Reform [2010] IEHC 427 …. 13.23 Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170 …. 6.6, 6.11, 6.23 Haque v Haque (No 1) (1962) 108 CLR 230 …. 1.31, 1.32, 1.33, 8.11, 8.12, 13.4, 13.19, 13.58, 20.22 — v — (No 2) (1965) 114 CLR 98 …. 20.2, 20.3, 20.6, 20.8, 20.10, 20.14, 20.21, 20.22, 20.23, 20.24, 20.26, 20.28, 20.29, 20.32 Harding v Wealands [2005] 1 All ER 415; [2005] 1 WLR 1539 …. 7.40, 7.42, 23.21 — v — [2007] 2 AC 1 …. 7.40, 7.41, 7.42, 23.21 Hargood v OHTL Public Company Ltd [2015] NSWSC 446 …. 4.14, 4.26, 17.28 Harold M Pitman Co v Typecraft Stoneware Ltd 626 F Supp 305 (1986) …. 2.9 Harris v Harris [1947] VLR 44 …. 5.69, 5.70, 5.71 Har-Shefi v Har-Shefi (No 2) [1953] P 220 …. 14.40 Hartwell Trent (Australia) Pty Ltd v Tefal Société Anonyme [1968] VR 3 …. 2.41 Harvey v Farnie (1882) 8 App Cas 43 …. 14.28 Hashmi v Hashmi [1972] Fam 26 …. 13.19 Hassan v Hassan [1978] 1 NZLR 385 …. 13.16, 13.32, 13.56, 14.47 Hausman v Buckley 299 F 2d 696 (2nd Cir 1962) …. 23.21 Hayel Saeed Anam & Co v Eastern Sea Freighters Pty Ltd (1973) 7 SASR 200 …. 2.61 Hayes, Pumpkin Patch Originals Ltd (Admin Apptd) (in Rec) v Pumpkin Patch Originals Ltd (Admin Appointed) (in Rec) [2016] FCA 1353 …. 24.7 Hays v Hays [2015] EWHC 3825 …. 21.6

xxxiii





Private International Law in Australia

Helbert Wagg & Co Ltd, Re [1956] Ch 323 …. 1.4, 20.10, 21.28 Hellenic Lines Ltd v Embassy of Pakistan 307 F Supp 947 (1969) …. 17.8 Hellmann’s Will, Re (1866) LR 2 Eq 363 …. 22.39 Henry, Marriage of (1995) 19 Fam LR 227 …. 10.25 Henry v Commonwealth (2012) 264 FLR 381; [2012] ACTSC 94 …. 7.49 — v Henry (1996) 185 CLR 571 …. 1.26, 4.42, 4.53, 4.54, 14.6, 14.7, 14.8, 14.27, 16.7, 24.29 Henthorn v Fraser [1892] 2 Ch 27 …. 2.53 Henwood v Levesque Beaubien Geoffrion Inc (1998) 128 Man R (2d) 72 …. 4.48 Herman v Meallin (1891) 8 WN (NSW) 38 …. 5.12, 10.56 Hernando, Hernando, Re v Sawtell (1884) 27 Ch D 284 …. 22.23, 22.24, 22.53 Herron, Re [1941] 4 DLR 203 …. 22.48 Hesperides Hotels Ltd v Aegean Turkish Holidays Ltd [1977] 3 WLR 656 …. 8.38 — v Muftizade [1979] AC 508 …. 1.18, 3.3 Hewit’s Trustees v Lawson (1891) 18 R 793 …. 21.5 Hibbert and Hetley [2018] FamCA 1 …. 10.69 Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) 90 FCR 1 …. 6.7 High Commissioner for Pakistan in the United Kingdom, The v National Westminster Bank plc [2015] EWHC 3052 …. 22.7 HIH Casualty and General Insurance Ltd, Re [2008] 1 WLR 852 …. 24.1, 24.23 HIH Casualty & General Insurance Ltd (in liq) v Wallace (2006) 68 NSWLR 603; [2006] NSWSC 1150 …. 6.3, 6.13, 17.24 Hills & Killen [2015] FamCA 536 …. 13.52 Hilton v Guyot 159 US 113 (1894) …. 1.34 Hiralal v Hiralal (2013) 10 ASTLR 300; [2013] NSWSC 984 …. 2.6, 19.4, 19.9, 19.27, 22.7, 22.14 Hislop v Paltar Petroleum Ltd (No 3) [2017] FCA 1253 …. 9.2 Hitchcock v Pratt (2010) 79 NSWLR 687; [2010] NSWSC 1508 …. 12.4, 22.34, 22.48 Ho v Akai Pty Ltd (in liq) (2006) 247 FCR 205 …. 2.40

Hobson v Queanbeyan Australian Football Club [2003] ACTSC 8 …. 7.40 Hockey v Mother o’ Gold Consolidated Mines Ltd (1903) 29 VLR 196 …. 21.11 Hodge v Club Motor Insurance Agency Pty Ltd (1974) 7 SASR 86 …. 7.17, 7.19, 17.3, 18.36 Hodgson v Dimbola Pty Ltd [2009] ACTSC 59 …. 1.26, 18.8, 18.27 — v Stawell (1854) 1 VLT 51 …. 13.26 Hoey v Martin’s Stock Haulage (Scone) Pty Ltd [2003] ACTSC 41 …. 7.40 Hog v Lashley (1792) 6 Bro PC 577; 2 ER 1278 …. 10.7 Hogg v Provincial Tax Commissioner [1941] 4 DLR 501 …. 20.29 Holden v Holden [1969] VR 334 …. 15.18 Holland v Lampen-Wolfe [2000] 3 All ER 833 …. 3.21 Hollandia, The, Re The Morviken [1983] 1 AC 565 …. 17.46 Holman v Johnson (1775) 1 Coup 341; 98 ER 1120 …. 1.22 Homawoo v GMF Assurance SA [2010] EWHC 1941 …. 7.41 Home Ice Cream Pty Ltd v McNabb Technologies LLC (No 2) [2018] FCA 1093 …. 4.18 Homeward Bound Gold Mining Co NL v McPherson (1896) 17 LR (NSW) (Eq) 281 …. 9.23 Hong & Cao [2018] FamCA 40 …. 16.7 Hooft van Huysduynen (No 1), Marriage of [1990] FLC 92-119 …. 15.32 Hooper v Gumm (1867) LR 2 Ch App 282 …. 20.9 Hooshmand v Ghasmezadegan (2000) FLC 93-044 …. 9.10, 13.26, 13.30 Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 …. 23.22 Houlditch v Marquess of Donegal (1834) 2 Cl & F 470; 6 ER 1232 …. 5.24 House of Spring Gardens Ltd v Waite [1991] 1 QB 241 …. 5.28 Hoyles, Re [1911] 1 Ch 179 …. 20.2, 20.29 Hub Capital Pty Ltd v Challock Pty Ltd [1999] 2 Qd R 588 …. 4.69 Huber v Steiner (1835) 2 Bing NC 202; 132 ER 80 …. 7.24

xxxiv



Table of Cases

Huddart Parker Ltd v The Ship ‘Mill Hill’ (1950) 81 CLR 502 …. 4.17 Hughes v Oxenham [1913] 1 Ch 254 …. 2.85 Hui v Esposito Holdings Pty Ltd [2017] FCA 648 …. 6.32 Hulse v Chambers [2002] 1 All ER (Comm) 812 …. 7.41 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 …. 19.16 Hunt v BP Exploration Co (Libya) Ltd (1980) 144 CLR 565 …. 5.48 — v — [1980] 1 NZLR 104 …. 5.51 — v — [1981] 1 NZLR 209 …. 5.49 Hunter Grain Pty Ltd v Hyundai Merchant Marine Co Ltd (1993) 117 ALR 507 …. 18.12 Huntingdale Village Pty Ltd (recs & mgrs apptd) v Corrs Chambers Westgarth (a firm) (No 3) [2016] WASC 366 …. 12.11 Huntington v Attrill [1893] AC 150 …. 7.20, 8.40, 8.41 Hussain v Hussain [1983] Fam 26 …. 13.16 Hutchinson v Bank of Scotland plc [2012] QSC 28 …. 19.20 Hutter v Hutter [1944] P 95 …. 13.39 HWC v The Corp of the Synod and Diocese of Brisbane (2008) 220 FLR 92; [2008] QSC 212 …. 7.49 Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130 …. 13.6, 13.7, 13.11, 13.14, 13.20, 13.27, 13.56 Hyland v Hyland (1971) 18 FLR 461 …. 10.25, 10.27

I

Igra v Igra [1951] P 404 …. 8.63, 14.47 Ikimi v Ikimi [2002] Fam 72 …. 10.55 Imam Din v National Assistance Board [1967] 2 QB 213 …. 13.4, 13.19 IMC Aviation Solutions Pty Ltd v Altain Khuder LLC (2011) 282 ALR 717; [2011] VSCA 248 …. 6.28 Incapable Person FCC, Re an alleged & the Protected Estates Act 1983 (1990) 19 NSWLR 541 …. 5.71, 5.72 Incitec Ltd v Alkimos Shipping Corp (2004) 138 FCR 496; [2004] FCA 698 …. 4.21, 4.25



Independent Insurance Co, Re [2005] NSWSC 587 …. 24.23 Independent Trustee Services Ltd v Morris (2010) 79 NSWLR 425; [2010] NSWSC 1218 …. 5.19, 5.24 Indian Chief, The (1801) 3 C Rob 12; 165 ER 367 …. 10.17 Indian Farmers Fertiliser Cooperative Ltd v Gutnick [2015] VSC 724 …. 6.38 Indyka v Indyka [1969] 1 AC 33 …. 14.32, 14.36, 14.41 Inglis v Commonwealth Trading Bank (1972) 20 FLR 30 …. 3.3 — v Robertson [1898] AC 616 …. 21.11 Inland Revenue Commissioners v Bullock [1976] 3 All ER 353 …. 10.25 — v Duchess of Portland [1982] Ch 314 …. 10.30 — v Stype Investments (Jersey) Ltd [1982] 1 Ch 456 …. 22.7, 22.13 Innovia Films Ltd v Frito-Lay North America, Inc [2012] EWHC 790 …. 19.7 Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16 …. 12.9, 12.11, 12.13, 12.16, 12.22, 18.30, 18.45 Intermetal Group Ltd v Worslade Trading Ltd [1998] 2 IR 1 …. 4.38 International Awards Group LLC Asian Advertising Festival (Spikes) Asia Pty Ltd (No 1) (2016) 120 IPR 473; [2016] FCA 617 …. 2.79 International Movie Group Inc & Movie Group Inc v Palace Entertainment Corporation Pty Ltd (1995) 128 FLR 458 …. 6.33 International Relief and Development Inc v Nadu [2014] FCA 887 …. 6.32 International Tank & Pipe SAK v Kuwait Aviation Fuelling Co KSC [1975] QB 224 …. 6.20 Isaac Penhas v Tong Soo Eng [1953] AC 304 …. 13.26 Islamic Republic of Iran v Barakat Galleries Ltd [2009] QB 22 …. 8.56 — v Berend [2007] EWHC 132 …. 8.20, 21.17 Israel Discount Bank v Hadjipateras [1983] 3 All ER 129 …. 5.27, 5.35 ISS Machinery Services Ltd v Aeolian Shipping SA [2001] 2 Lloyd’s Rep 641 …. 17.26

xxxv



Private International Law in Australia

Istvan v Istvan SC (Vic), Lush J, 29 October 1982, unreported …. 18.35 lpole v Canadian Nor rn Railways Co [1923] AC 113 …. 18.47 Ivanishvili v Credit Suisse AG [2018] NZHC 1755 …. 19.18

J

J (A Minor) (Abduction), Re [1990] 2 AC 562 …. 10.63, 10.64, 10.74, 15.31 J v C [1970] AC 668 …. 15.61 Jabbour v Custodian of Absentee’s Property of State of Israel [1954] 1 All ER 145 …. 20.10 Jablonowski v Jablonowski (1972) 28 DLR (3d) 440 …. 10.29 Jackson v TCN Channel 9 Pty Ltd [2002] NSWSC 1229 …. 7.40 Jacobs v Australian Abrasives Pty Ltd [1971] Tas SR 92 …. 2.68 — v Beaver (1908) 17 Ont LR 496 …. 5.29 Jacobs, Marcus & Co v Crédit Lyonnais (1884) 12 QBD 589…. 17.34, 17.42 Jaffer v Williams (1908) 25 TLR 12 …. 5.19 Jahwar v Betta Livestock 17 [2001] 4 IR 42 …. 4.38 Jakstas v Jakstas [1957] QWN 17 …. 10.56 James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353 …. 4.75, 4.76 James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583 …. 6.21, 17.8, 17.18, 17.19 Jamieson v Commissioner for Internal Revenue (2007) 210 FLR 210; [2007] NSWSC 324 …. 8.47, 10.25 — v Robb (1881) 7 VLR 170 …. 5.32 Jaroszonek v Jaroszonek [1962] SASR 157 …. 13.30 Jarvis Conklin Mortgage Co, Re (1895) 11 TLR 373 …. 24.28 Jasmit and Jasmit [2014] FCCA 972 …. 14.8 Jausnik v Nominal Defendant (No 5) (2016) 316 FLR 359; [2016] ACTSC 306 …. 18.40 Jeannot v Furst (1909) 25 TLR 424 …. 5.22 Jebsens International (Australia) Pty Ltd v Interfert Australia Pty Ltd (2012) 112 SASR 297; [2012] SASC 50 …. 6.13

Jenton Overseas Investment Pte Ltd v Townsing (2008) 221 FLR 398; [2008] VSC 470 …. 5.34, 5.67, 8.58 Jet Holdings Inc v Patel [1990] QB 335 …. 5.28 JH Rayner (Mincing Lane) Ltd v Dept of Trade and Industry [1989] Ch 72 …. 3.13, 3.15 — v — [1990] 2 AC 418 …. 23.20 JLM v Director-General NSW Dept of Community Services (2001) 22(4) Leg Rep SL4a …. 15.48, 15.50 John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd (No 2) [2015] NSWSC 564 …. 4.28 John Kaldor Fabricmaker Pty Ltd v Mitchell Cotts Freight (Aust) Pty Ltd (1989) 18 NSWLR 172 …. 17.12, 17.14, 17.48 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 …. 1.25, 1.29, 1.30, 7.13, 7.14, 7.26, 7.27, 7.28, 7.30, 7.31, 7.33, 7.38, 7.39, 7.43, 11.3, 11.12, 11.13, 11.14, 11.15, 11.16, 11.17, 11.18, 11.19, 11.27, 11.28, 17.31, 17.42, 18.2, 18.4, 18.10, 18.11, 18.20, 18.28, 18.33, 18.35, 19.15, 23.21 John Russell and Co Ltd v Cayzer, Irvine and Co Ltd [1916] 2 AC 298 …. 2.6 John Sanderson and Co (NSW) Pty Ltd v Giddings [1976] VR 421 …. 2.10 Johnson, Re [1903] 1 Ch 821 …. 8.33 Johnson v Billyard (1890) 11 LR (NSW) 319 …. 21.4, 21.7 Johnson Matthey & Wallace Ltd v Ahmad Alloush (1984) 135 NLJ 1012 …. 7.36 Johnstone v Commonwealth (1979) 143 CLR 398 …. 2.22 Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270 …. 3.26 Joyce v Joyce [1979] Fam 93 …. 14.46 Joye v Sheahan (1996) 62 FCR 417 …. 2.8, 2.9 JP Morgan Chase Bank NA v PT Indah Kiat Pulp and Paper Corp [2012] NSWSC 1279 …. 5.22 JSC BTA Bank v Ablyazov [2011] EWHC 202 (Comm) …. 8.56 Judd v Judd (1958) 75 WN (NSW) 147 …. 10.56

xxxvi



Table of Cases

Julia Farr Services Inc v Hayes (2003) 25 NSWCCR 138; [2003] NSWCA 37 …. 7.28, 7.52 Jupiter (No 3), The [1927] P 122 …. 8.49, 20.9 Jupiter (No 3), The [1927] P 250 …. 20.9

K

K (A Child) (Reunite International Child Abduction Centre Intervening), Re [2014] AC 1401; [2014] UKSC 29 …. 15.40 Kadam v MiiResorts Group 1 Pty Ltd (No 4) [2017] FCA 114 …. 9.22 Kahler v Midland Bank Ltd [1950] AC 24 …. 17.4, 17.34, 17.38 Kanoria v Guinness [2006] 1 Lloyd’s Rep 701 …. 6.32 Kapila, In the matter of Edelsten [2014] FCA 1112 …. 24.9 Kapur v Kapur [1984] FLR 920 …. 10.63 Karim v Khalid (2007) 38 Fam LR 300; [2007] FamCA 1287 …. 15.27 Kaufman, Goods of [1952] P 325 …. 22.12 Kaufman v Gerson [1904] 1 KB 591 …. 8.64 Kay’s Leasing Corp Pty Ltd v Fletcher (1964) 116 CLR 124 …. 12.13, 17.11 Kazemi Estate v Islamic Republic of Iran [2014] 3 SCR 176 …. 3.26 KBRV Resort Operations Pty Ltd v Chilcott (2001) 51 NSWLR 516; [2001] NSWCA 116 …. 7.48 Keele v Findley (1990) 21 NSWLR 444 …. 5.29, 5.30 Keen & Scofield [2013] FCCA 540 …. 16.8 Keen Corp v Caldwell 840 SW 2d 715 (1992) …. 1.34 Keenco v South Australia and Territory Air Service Ltd (1974) 8 SASR 216 …. 5.15 Kehr, Re [1952] Ch 26 …. 22.15 Kelly v Panayiotou [1980] 1 NSWLR 15 …. 15.18 — v Selwyn [1905] 2 Ch 117 …. 17.3, 21.32, 21.33, 21.34 Kemeny v Kemeny (1998) 23 Fam LR 105; FLC 92-806; [1998] FamCA 34…. 14.8, 16.16 Kemp v Piper [1971] SASR 25 …. 18.4 Kendall v Kendall [1977] Fam 208 …. 14.45, 14.48



Kennedy v Wallace (2004) 142 FCR 185; [2004] FCAFC 337 …. 7.34 Kennion v Buchan’s Trustees (1880) 7 R 570 …. 22.50 Kent v Paterson-Brown [2018] EWHC 2008 …. 19.18 Kent & Kent [2017] FamCA 21 …. 16.8 Kent & Kent [2017] FamCAFC 157 …. 16.7 Kertesz v Kertesz [1954] VLR 195 …. 10.22 Khademollah, Marriage of (2000) 159 FLR 42; [2000] FamCA 1045 …. 14.8 Khan v Khan [1963] VR 203 …. 13.16, 13.20 Khan’s Settlement, Re [1966] Ch 567 …. 22.53 Kilah v Director-General, Dept of Community Services (2008) 39 Fam LR 431; [2008] FamCAFC 81 …. 10.67 Kilgour v Kilgour 1987 SLT 568 …. 15.39 Kim v Minister for Immigration and Border Protection [2016] FCA 959 …. 10.37 Kim Michael Productions Pty Ltd v Tropical Islands Management Ltd [2010] NSWSC 269 …. 9.2 King v Brandywine Reinsurance Co (UK) Ltd [2004] 2 Lloyd’s Rep 670 …. 17.24 — v — [2005] 1 Lloyd’s Rep 655 …. 17.24 — v Lewis [2004] EWHC 168 …. 2.71 King of Spain v Machado (1827) 4 Russ 225; 38 ER 790 …. 9.1 Kingston’s (Duchess of) case [1775–1802] All ER Rep 623 …. 5.26 Kingston Futures Pty Ltd v Waterhouse [2012] QSC 212 …. 9.10 Kingsway General Insurance Co v Canada Life Insurance Co (2001) 149 OAC 303 …. 18.41 Kirkby & Kirkby [2017] FamCA 884 …. 13.52 KK Sony Computer Entertainment v Van Veen (2006) 71 IPR 179 …. 3.5 Kloebe, Re (1884) 28 Ch D 175 …. 22.15 KM (A Minor) (Habitual Residence), Re [1996] 2 FCR 333 …. 10.69 Knight v Adventure Associates Pty Ltd [1999] NSWSC 861 …. 4.26 Knowles (dec’d), Re [1995] 2 NZLR 377 …. 20.30, 20.32 Kochanski v Kochanska [1958] P 147 …. 13.30 Kodak (Australasia) Pty Ltd v Commonwealth (1989) 98 ALR 424 …. 2.30

xxxvii



Private International Law in Australia

Kok v Resorts World at Sentosa Pte Ltd [2017] WASCA 150 …. 5.34, 8.58, 8.64 — v Sheppard [2009] NSWSC 1262 …. 18.27 Kolchmann v Meurice [1903] 1 KB 534 …. 2.85 Konamaneni v Rolls-Royce Industrial Power (India) Ltd [2002] 1 WLR 1269 …. 23.21, 23.22 Kontis v Barlin (1993) 115 ACTR 11 …. 4.79 Koop v Bebb (1951) 84 CLR 629 …. 7.11, 9.30, 12.4, 18.11 Korea Resolution and Collections Corp v Lee [2013] NZHC 985 …. 5.15, 5.19 Korner v Witzkowitzer [1950] 2 KB 128 …. 7.31 Korvine’s Trust, Re [1921] 1 Ch 343 …. 7.18 Kreet & Sampir (2011) 44 Fam LR 405; [2011] FamCA 22 …. 13.42, 13.52 Kuan & Toh [2016] FamCAFC 115 …. 15.27 Kuklycz v Kuklycz [1972] VR 50 …. 13.26, 13.27, 13.28, 13.29 Kuwait Airways Corp v Iraqi Airways Co [1995] 3 All ER 694 …. 3.16, 3.18, 8.67 — v — (No 3) [2001] 1 Lloyd’s Rep 161 …. 8.68 — v — (Nos 4 and 5) [2002] 2 AC 883; [2002] 3 All ER 209 …. 1.4, 8.57, 8.60, 8.66, 8.68, 18.28, 18.42 Kuwait Oil Tanker Co SAK v Qabazard [2003] 3 All ER 501 …. 20.10, 21.28 Kwok Chi Leung Karl v Commissioner of Estate Duty [1988] 1 WLR 1035 …. 20.10

L

L, Re [1999] 1 Fam LR 433 …. 15.42 La Donna Pty Ltd v Wolford AG (2005) 194 FLR 26; [2005] VSC 359 …. 6.14 Labuda v Langford [2001] ACTSC 126 …. 7.43, 7.45 Lahoud v The Democratic Republic of Congo [2017] FCA 92 …. 6.40 Lai v Huang [2016] NZHC 2828 …. 22.34 Laker Airways v Sabena, Belgian World Airlines 731 F 2d 909 (1984) …. 4.89 Lambe, In the Will of [1972] 2 NSWLR 273…. 5.71 Lambert Leasing Inc v QBE Insurance Australia Ltd [2012] NSWSC 953 …. 9.10

— v QBE Insurance Ltd [2016] NSWCA 254 …. 7.34 Lan & Hao [2016] FamCA 670 …. 16.4, 16.6, 16.8 Landon & Yin [2016] FamCA 1068 …. 13.4 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 …. 1.25, 11.12 Lao & Yeng [2018] FamCA 560 …. 15.8 Lapsley v Grierson (1845) 8 D 34 …. 13.8 Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd (2011) 279 ALR 772; [2011] NSWSC 268 …. 6.5 Laurie v Carroll (1958) 98 CLR 310 …. 1.6, 2.3, 2.7, 2.8, 2.9, 2.10, 2.16, 11.1 Law v Gustin [1976] Fam 155 …. 14.32 Law Debenture Trust Corp plc, The v Ukraine [2017] EWHC 655 …. 8.69 Lawrence v Lawrence [1985] Fam 106 …. 13.33, 13.34, 13.35, 13.55 Lawson v Serco Ltd [2006] 1 All ER 823 …. 12.9, 12.15 Lazard Brothers & Co v Midland Bank Ltd [1933] AC 289 …. 23.17, 23.18 Lazarewicz v Lazarewicz [1962] P 171 …. 13.8, 13.29 Lazarus v Deutsche Lufthansa AG [1985] 1 NSWLR 188 …. 9.2 Lee v Abdy (1886) 17 QBD 309 …. 21.26, 21.27 — v Lau [1967] P 14 …. 7.20, 13.16, 13.17, 13.18 Legend International Holdings Inc (as debtor in possession of the assets of Legend International Holdings Inc) v Legend International Holdings Inc [2016] VSC 308 …. 24.8, 24.12, 24.23 Leighton International Ltd v Hodge [2011] NSWSC 1381 …. 9.20 Lenders v Anderson (1883) 12 QBD 50 …. 2.48 Lendrum v Chakravarti 1929 SC 96 …. 13.38 Lengyel v Rasad (No 2) [1990] FLC 92-154 …. 13.43 Leon v Numkena 689 P 2d 566 (1984) …. 1.34 Lepre v Lepre [1965] P 52 …. 14.48 Leroux v Brown (1852) 12 CB 801; 138 ER 1119 …. 7.20, 7.35

xxxviii



Table of Cases

Lethbridge v Lethbridge (1902) 19 WN (NSW) 128 …. 10.58 Levick’s Will Trusts, Re [1963] 1 All ER 95 …. 22.40 Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320 …. 2.43, 2.52, 2.76, 2.80 Lewal’s Settlement Trusts, Re [1918] 2 Ch 391 …. 22.38, 22.52, 22.54 Lewincamp v ACP Magazines Ltd [2008] ACTSC 69 …. 7.40 Lewis v Baldwin (1848) 11 Beav 153; 50 ER 775 …. 23.14 — v Balshaw (1935) 54 CLR 188 (1935) 54 CLR 188 …. 22.8, 22.9, 22.10, 22.12 Lewis Construction Co Pty Ltd v M Tichauer SA [1966] VR 341 …. 2.53, 2.58, 2.68 LFDB v SM [2015] FCA 725 …. 5.77 — v — (No 3) [2017] FCAFC 178 …. 5.77, 16.16 Lhoneux, Limon & Co v Hong Kong & Shanghai Banking Corp (1886) 33 Ch D 446 …. 2.16 Li v Zhou (2014) 310 ALR 66; [2014] NSWCA 176 …. 3.26 Li Lian Tan v Durham and General Accident & Life Assurance Corp Ltd [1966] SASR 143 …. 7.17, 7.19, 18.36 Liaoning Zhongwang Group Co Ltd v Alfield Group Pty Ltd [2017] FCA 1223 …. 6.31, 9.3, 9.4 Libyan Arab Foreign Bank v Bankers Trust Co [1989] QB 728 …. 8.3, 17.25 Lieu & Antcliff [2016] FamCA 942 …. 13.52 Lifestyle Investment Group v Coral Investments Securities Ltd [2016] NZHC 2262 …. 4.56, 19.5 Liftronic Pty Ltd v Montgomery Elevator Co [1996] ATPR 41–458 …. 2.79 Lightning v Lightning Electrical Contractors [1998] NPC 71 …. 19.27 Limerick, Countess of v Earl of Limerick (1863) 4 Sw & Tr (Supp) 252; 164 ER 1512 …. 9.12 Lin & Nicoll [2016] FamCA 401 …. 13.26, 13.28 Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 …. 5.22 Linter Group Ltd (in liq) v Price Waterhouse (1992) 2 ACSR 346 …. 4.69

Lipohar v R (1999) 200 CLR 485; [1999] HCA 65 …. 11.20 Lister v McAnulty [1944] 3 DLR 673 …. 18.37 Littauer Glove Corp v FW Millington (1920) Ltd (1928) 44 TLR 746 …. 5.13 Liu v Ma [2017] VSC 810 …. 5.19 LK v Director-General, Dept of Community Services (2009) 237 CLR 582; [2009] HCA 9 …. 10.63, 10.64, 10.67, 10.68, 10.69, 10.74, 15.12, 15.31, 15.40 LKT Industrial Berhad (Malaysia) v Chun [2004] NSWSC 820 …. 6.32 Lloyd v Guibert (1865) LR 1 QB 115 …. 17.17 — v Lloyd [1962] VR 70 …. 10.8 Lodge v Lodge (1963) 107 Sol Jo 437 …. 13.23 Lord Advocate v Jaffey [1921] 1 AC 147 …. 10.20 Lord Cable, Re [1977] 1 WLR 7 …. 22.16 Lord Cranstown v Johnstown (1796) 3 Ves 170; 30 ER 952 …. 3.9 Lorentzen v Lydden & Co Ltd [1942] 2 KB 202 …. 8.49, 8.50, 8.59 Lorillard, Re [1922] 2 Ch 638 …. 22.14, 22.15, 22.16 Lough Neagh Exploration Ltd v Morrice [1999] NICA 8 …. 4.33 Loutchansky v Times Newspapers Ltd [2002] QB 783 …. 2.71 Lowenthal v Attorney-General [1948] 1 All ER 1 All ER 295 …. 10.51 LR Avionics Technologies Ltd v The Federal Republic of Nigeria [2016] EWHC 8 …. 3.27 Lubbe v Cape Plc [2000] 2 All ER 986 …. 4.35 Lucasfilm Ltd v Ainsworth [2012] 1 AC 208 …. 3.5 Luke v Lyde (1759) 2 Burr 882; 97 ER 614 …. 1.19 — v Mayoh (1921) 29 CLR 435 …. 2.25 Lundgren v O’Brien (No 2) [1921] VLR 361 …. 13.40

M

M v L [2017] SASC 39 …. 16.12 — v L (Financial Relief after Overseas Divorce) [2003] EWHC 328 …. 16.14

xxxix





Private International Law in Australia

McCabe v McCabe [1994] 1 FLR 410 …. 13.23 McDonald v Director-General, Dept of Community Services (2006) 36 Fam LR 468; [2006] FamCA 1400 …. 15.48 Macdonald v Macdonald 1932 SC (HL) 79 …. 20.3, 20.24 McDougall v Occidental Syndicate Ltd (1912) 4 DLR 727 …. 5.29 McElroy v McAllister 1949 SC 110 …. 8.20, 18.7 McEntee v Connor (1994) 4 Tas R 18 …. 4.69, 4.75 McGrath as Liquidators of HIH Insurance Ltd, Re [2008] NSWSC 881 …. 24.22 MacGregor v Application des Gaz [1976] Qd R 175 …. 2.68 McGregor v Potts (2005) 68 NSWLR 109; [2005] NSWSC 1098 …. 7.40, 18.25 McIntyre v Eastern Prosperity Investments Pte Ltd (No 6) (2005) 218 ALR 401; [2005] FCA 155 …. 23.17 McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 …. 1.25, 1.29, 7.24, 7.25, 7.26, 7.28, 7.47, 7.48, 11.1, 11.10, 11.11, 11.12 McKee v McKee [1951] AC 352 …. 15.69 McKelvey v Meagher (1906) 4 CLR 265 …. 9.10 Mackender v Feldia AG [1967] 2 QB 590 …. 17.33 McLaughlin, Re [1922] P 235 …. 12.11 McM v C (1980) 5 Fam LR 650 …. 15.18 MacMillan v MacMillan [1989] SLT 350 …. 15.42, 15.51, 15.56 Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [1995] 3 All ER 747; [1995] 1 WLR 978 …. 8.20, 19.5, 21.17 — v — [1996] 1 All ER 585; [1996] 1 WLR 387 …. 7.13, 7.14, 7.20, 7.23, 8.3, 19.27, 21.11, 21.31 McMorran, Re [1958] Ch 624 …. 22.42, 22.54 McOwan, Marriage of (1993) 17 Fam LR 377 …. 15.44 Macquarie Bank Ltd v Juno Holdings S.a.r.l. [2015] NSWSC 1260 …. 5.8 Madden International Ltd v Lew Footwear Holdings Pty Ltd (2015) 50 VR 22; [2015] VSCA 90 …. 2.43 Magnin v Creevey [2017] NSWSC 375 …. 9.2

Mahadervan v Mahadervan [1964] P 233 …. 7.33 Maiden Civil (P & E) Pty Ltd, Re [2013] NSWSC 852 …. 21.15 Maider and Carrigan [2008] FamCA 862 …. 14.21 Malaysia-Singapore Airlines Ltd v Parker [1972] 3 SASR 300 …. 5.20, 5.43 Maldonado, In the Estate of [1954] P 223 …. 7.23 Male v Roberts (1800) 3 Esp 163; 170 ER 574 …. 17.29 Malicorp v Government of the Arab Republic of Egypt [2015] EWHC 361 (Comm) …. 6.32 Manifold [1962] Ch 1, Re …. 22.10, 22.16 Manolopoulos v Pnaiffe [1930] 2 DLR 169 …. 5.29 Maples v Maples [1988] Fam 14 …. 5.61 Maraver, Goods of (1828) 1 Hagg Ecc 498; 162 ER 658 …. 22.38 Marett, Re (1887) 36 ChD 400 …. 10.30 Maritime Insurance Co Ltd v Geelong Harbour Trust Commissioners (1908) 6 CLR 194 …. 4.33, 4.39, 4.41, 4.46 Mark v Mark [2005] UKHL 42; [2006] 1 AC 98; [2005] 3 All ER 912 …. 1.5, 10.1, 10.3, 10.4, 10.7, 10.25, 10.29, 10.55, 10.60, 10.63, 15.31 Marks v Australia and New Zealand Banking Group Ltd [2014] QCA 102 …. 5.56, 5.57 — v National and General Insurance Co Ltd [1993] ACTSC 84 …. 5.69 Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223 …. 2.4, 2.16 Marsh & Marsh [2014] FCCA 132 …. 16.9 Marshall v Fleming [2013] NSWSC 566 …. 9.19 — v — [2014] NSWCA 64 …. 9.18, 9.19, 9.21 — v — [2017] NSWSC 1107 …. 9.19 — v Houghton [1923] 2 WWR 553 …. 5.19 Martin, Re [1900] P 211 …. 7.20 Martin, Re; Loustalan v Loustalan [1900] P 211 …. 22.47 Martin v Kelly (1995) 22 MVR 115 …. 7.24 Martyn v Graham [2003] QDC 447 …. 5.17 xl



Table of Cases

Maschmann v Wenzel [2007] NSWSC 850 …. 5.66 Mastaka v Midland Bank Executor & Trustee Co Ltd [1941] Ch 192 …. 22.48 Mather v Mahoney [1968] 3 All ER 223 …. 14.41 Mauritius Commercial Bank Ltd v Hestia Holdings Ltd [2013] EWHC 1328; [2013] 2 All ER 898 …. 4.30, 17.23 Maxwell v Murphy (1957) 96 CLR 261 …. 7.47 Mayfield v Mayfield [1969] P 119 …. 14.32 Meatyard, Goods of [1903] P 125 …. 22.9, 22.10 Meckiff v Simpson [1968] VR 62 …. 9.30 Medapati & Revanka (No 2) [2017] FamCA 319 …. 16.4, 16.6, 16.8 Mégret, Re [1901] 1 Ch 547 …. 22.53 Mendelson-Zeller Co Inc v T & C Providores Pty Ltd [1981] 1 NSWLR 366 …. 17.15, 17.16 Mendikwae Ltd v Mezin [2000] QSC 56 …. 5.22 Mengel’s Will Trusts, Re [1962] Ch 791 …. 22.28, 22.43 Mercantile Mutual Insurance (Australia) Ltd v Neilson (2004) 28 WAR 206; [2004] WASCA 60 …. 8.23 Mercedes Benz AG v Leiduck [1996] AC 284 …. 2.5 Merker v Merker [1963] P 283 …. 13.29, 14.35, 14.42 Merrick & Wellington [2014] FamCA 514 …. 15.8 Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd (1933) 48 CLR 565 …. 11.4, 11.5, 11.6, 11.11, 11.12, 11.14, 11.15, 17.13, 17.14, 17.16, 21.7 Messina v Smith [1971] P 322 …. 14.41 Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 …. 2.66, 2.67, 2.77, 18.10 Mewett v Commonwealth (1998) 191 CLR 471 …. 11.17 Meyer, Re [1971] P 298 …. 8.63, 14.48 Meyer v Dresser (1864) 16 CB (NS) 646 …. 7.46 Mhambrey and Vairaja [2018] FamCAFC 120 …. 10.68, 10.69, 10.70

Micallef, Estate of [1977] 2 NSWLR 929 …. 22.33 Michael Wilson & Partners Ltd v Nicholls (2008) 74 NSWLR 218; [2008] NSWSC 1230 …. 7.34, 9.23 — v — (2011) 244 CLR 427; [2011] HCA 48 …. 19.6 Midland Montagu Australia Ltd v O’Connor (1992) 2 NTLR 86 …. 4.69 Milder v Milder [1959] VR 95 …. 13.30 Milkovich v Saari 203 NW 2d 408 (1973) …. 1.31 Miller, Re; Bailie v Miller [1914] 1 Ch 511 …. 22.26, 22.27 Miller v Teale (1954) 92 CLR 406 …. 10.20, 13.38, 13.40 Miller and Caddy, In the Marriage of (1980) 10 Fam LR 858 …. 16.16 Miller and Caddy, In the Marriage of (1985) FLC 91-625 …. 14.26 Mills v Mills (1938) 60 CLR 150 …. 23.12, 23.13, 23.14 Mineracoes Brasilieras Reunidas v EF Marine SA (The Freights Queen) [1977] Lloyd’s Rep 140 …. 17.46 Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 16) [2017] WASC 340 …. 7.29, 12.35 Minister for Immigration, Local Government and Ethnic Affairs v Gugerli (1992) 36 FCR 68 …. 10.43 Minmetals Germany GmbH v Ferco Steel Ltd [1999] 1 All ER (Comm) 315 …. 6.32 Mitchner, Re [1922] St R Qd 252 …. 22.41 Mitford v Mitford [1923] P 130 …. 14.42 Mitsubishi Motors Corp v Soler ChryslerPlymouth, Inc (1985) 473 US 614 …. 6.5 Mobil Oil Australia Pty Ltd v State of Victoria (2002) 211 CLR 1; [2002] HCA 27 …. 2.8, 2.9, 12.4 Mobi-Light Inc v KK Machinery Pty Ltd [2010] WADC 105 …. 5.22, 5.29 Mohamed v Knott [1969] 1 QB 1 …. 7.22 Monaco v Monaco (1937) 157 LT 231 …. 15.70 Monash IVF Pty Ltd v Burmeister (No 2) [2017] NSW 903 …. 4.74 Monde Petroleum SA v Westernzagros Ltd [2015] EWHC 67 …. 6.14 xli





Private International Law in Australia

Moore, as Debtor-in-Possession of Australian Equity Investors [2012] FCA 1002 …. 24.8, 24.9 Morguard Investments v De Savoye [1990] 3 SCR 1077 …. 5.21 Morin v Bonhams & Brooks Ltd [2003] 2 All ER (Comm) 36 …. 2.41, 2.75 Morton v Morton [2008] FamCA 854 …. 16.7 Moses v Stephenson (1981) 10 NTR 32 …. 15.18 Mostyn v Fabrigas (1775) 1 Coup 161; 98 ER 1021 …. 1.20, 1.22 Moti v R (2011) 245 CLR 456; [2011] HCA 50 …. 3.5 Mount Albert Borough Council v Australasian Temperance & General Mutual Life Assurance Society [1938] AC 224 …. 12.24, 17.8, 17.15, 17.34, 20.14 Mountbatten v Mountbatten [1959] P 43 …. 14.41 MRA v NRK 2011 SLT 873 …. 13.23 Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd [1990] WAR 531 …. 4.69 Mulugeta Guadie Mengiste v Endowment Fund for the Rehabilitation of Tigray [2017] EWCA Civ 1326 …. 5.33 Munroe v Douglas (1820) 5 Madd 379; ER 940 …. 10.17 Munsie v Munsie [2012] NSWSC 479 …. 7.40 Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7 …. 2.60, 9.2, 19.6, 19.8, 19.9, 19.10, 19.14, 19.15, 19.17, 19.27, 20.1 Murakami Takako (Executrix of Estate of Takashi Murakami Suroso, decd) v Wiryadi Louise Maria [2008] SGCA 44 …. 19.2, 19.5 Murphy v Deichler [1909] AC 446 …. 22.50 Murray v Champernowne [1901] 2 IR 232 …. 22.53 Murray and Tam, Marriage of; Director, Family Services (ACT) (Intervener) (1993) 16 Fam LR 982 …. 15.40, 15.46, 15.55 Musgrave v Commonwealth (1937) 57 CLR 514 …. 2.21 Mustafa, In the Marriage of (1981) 7 Fam LR 711; FLC 91-112 …. 8.41, 13.40, 14.28 Mutch v Dalley [1923] St R Qd 138 …. 2.15

Muusers v State Government Insurance Office (Qld) [1980] 2 NSWLR 73 …. 2.83 MW v Director-General, Dept of Community Services (2008) 244 ALR 205; [2008] HCA 12 …. 15.40 My v Toyota Motor Co [1977] 2 NZLR 113 …. 2.68 Mynott v Barnard (1939) 62 CLR 68 …. 7.17, 12.19, 12.20, 17.12

N

N, Re [2000] 2 FCR 512 …. 15.40 N v N [2000] 3 FCR 84 …. 10.63, 10.69 Nabi v Heaton (Inspector of Taxes) [1981] 1 WLR 1052 …. 13.4, 13.19 Nachimson v Nachimson [1930] P 217 …. 13.9 Nalpantidis v Stark (No 2) (1996) 65 SASR 454 …. 7.24, 18.4 Napiat Pty Ltd v Salfinger (No 7) (2011) 202 FCR 264; [2011] FCA 1322 …. 10.57 National Australia Bank Ltd v Dessau [1988] VR 521 …. 19.16 National Bank of Greece and Athens v Metliss [1958] AC 509 …. 1.31, 7.19 National Commercial Bank v Wimborne (1978) 5 BPR 11,958 …. 19.5, 19.6, 19.11, 19.15 — v — (1979) 11 NSWLR 156 …. 2.4, 2.11, 2.16 National Mutual Holdings Pty Ltd v Sentry Corp (1989) 22 FCR 209 …. 4.87, 9.28 National Westminster Bank v UtrechtAmerica Finance Co [2001] 2 All ER (Comm) 7 …. 4.90 Navarro and Jurado (2010) 44 Fam LR 310; [2010] FamCAFC 210 …. 14.8 Naviera Amazonica Peruana SA v Compania Internacional de Seguros del Peru [1988] 1 Lloyd’s Rep 116 …. 6.21 Naylor v Kilham [1999] VUSC 11 …. 4.47 Nehemiah v Athletics Congress of the USA 765 F 2d 42 (1985) …. 2.9 Neilson v Overseas Projects Corp (Vic) Ltd (2005) 223 CLR 331; [2005] HCA 54 …. 1.26, 1.29, 1.30, 1.35, 7.40, 7.49, 8.16, 8.17, 8.20, 8.21, 8.22, 8.23, 8.24, 8.26, 8.27, 8.30, 8.31, 8.32, 8.34, 9.1, 9.6, 9.7, 9.8, 9.28, 17.5, 18.4, 18.5, 18.7, 18.8, 18.9 xlii



Table of Cases

— v Overseas Projects Corporation of Victoria Ltd [2002] WASC 231 …. 8.23 Nelson v Bridport (1846) 8 Beav 547; 50 ER 215 …. 20.24, 21.5 Nelson & Nelson [2016] FamCA 516 …. 13.52 Nevill & Nevill [2016] FamCAFC 41 …. 16.10 New Brunswick Railway Co v British & French Trust Corp [1939] AC 1 …. 17.4 New Cap Reinsurance Corp Holdings Ltd, Re (1999) 32 ACSR 234; [1999] NSWSC 536 …. 24.25 New Cap Reinsurance Corp Ltd v AE Grant (2009) 257 ALR 740; [2009] NSWSC 662 …. 24.24 New York Breweries Co v Attorney-General [1899] AC 62 …. 22.7 New Zealand Basing Ltd v Brown [2017] 2 NZLR 93 …. 17.10 Newbeld & Newbeld [2007] FamCA 1483 …. 16.20 Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 …. 20.16 Newmarch v Newmarch [1978] Fam 79 …. 14.46 News Corp Ltd v Lenfest Communications Inc (1996) 21 ACSR 553 …. 4.49 Nicholls v Michael Wilson & Partners Ltd (2010) 243 FLR 177; [2010] NSWCA 222 …. 19.6, 19.8, 19.15, 23.15 Nicola v Ideal Image Development Corp Inc (2009) 215 FCR 76; 261 ALR 1; [2009] FCA 1177 …. 4.25, 6.5, 6.6 Nissan v Attorney-General [1970] AC 179 …. 3.9 Nolan v Borger 203 NE 2d 274 (1963) …. 8.19 — v Minister for Immigration & Ethnic Affairs (1988) 165 CLR 178 …. 1.6, 10.49 Nominal Defendant v Bagot’s Executor & Trustee Co Ltd [1971] SASR 346 …. 7.19, 18.38 — v Motor Vehicle Insurance Trust (WA) (1983) 50 ALR 511 …. 2.50 Norfolk Island Shipping Line Co, Re (1988) 6 ACLC 990 …. 24.25, 24.28 Norman v Norman (No 2) (1968) 12 FLR 39 …. 5.29



— v — (No 3) (1969) 16 FLR 231 …. 10.56, 10.58, 14.21, 14.44, 14.49 Norris, Re (1888) 4 TLR 452 …. 10.61 Nottebohm Case (Second Phase) (Liechtenstein v Guatemala) [1955] ICJ Rep 4 …. 10.32 Nouvion v Freeman (1889) 15 App Cas 1 …. 5.22 Novasonic Corp Ltd v Hagenmeyer (A/Asia) BV (1983) 8 ACLR 303 …. 2.30 Nudd v Taylor [2000] QSC 344 …. 2.4, 3.9 Nugent v Vetzera (1866) LR 2 Eq 704 …. 15.70 Nygh and Casey [2010] FamCA 145 …. 13.30

O

Oates v Consolidated Capital Services Ltd (2008) 66 ACSR 277; [2008] NSWSC 464 …. 23.21 Ocean Marine Insurance Co Ltd v CSR Ltd [2012] NSWSC 1229 …. 20.12, 21.26, 21.28 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 …. 1.26, 1.29, 2.41, 4.14, 4.17, 4.39, 4.42, 7.20, 17.14, 17.28, 17.33 O’Driscoll v J Ray McDermott [2001] WADC 198 …. 17.5 — v J Ray McDermott SA [2006] WASCA 25 …. 7.49, 8.20, 17.5 Office of the Children’s Lawyer v Balev 2018 SCC 16 …. 10.65, 10.68 Official Solicitor v Yemoh [2011] WLR 1450 …. 13.19 Ogden v Ogden [1908] P 46 …. 13.23 Ogilvie, Re [1918] 1 Ch 492 …. 22.28, 22.43 Ogilvy v Ogilvy’s Trustees 1927 SLT 83 …. 21.6 OJSC Oil Co Yugraneft (in liq) v Abramovich [2008] EWHC 2613 …. 19.5, 19.17 OJSC TNK-BP Holding v Lazurenko [2012] EWHC 2781 …. 7.38 O’Keefe and Beveridge (In Their Capacity As Joint Liquidators of Level One Residential (Jersey) Ltd and Special Opportunity Holdings Ltd) v Caner [2017] EWHC 1105 …. 23.22 Old UGC Inc v Industrial Relations Commission of New South Wales (2006) 225 CLR 274; [2006] HCA 24 …. 12.13, 12.20, 12.21 xliii



Private International Law in Australia

Olex Focas Pty Ltd v Skodaexport Co Ltd [1998] 3 VR 380 …. 17.25 Olivaylle Pty Ltd v Flottweg GmbH & Co KGAA (No 4) (2009) 255 ALR 632; [2009] FCA 522 …. 2.52 O’Neill, Re [1922] NZLR 468 …. 20.29 Open Universities Australia Pty Ltd v The TAFE Commission [2017] VSC 617 …. 4.61 Oppenheimer v Cattermole [1976] AC 249 …. 1.4, 8.64, 8.65, 8.68, 10.49, 10.51 Optus Networks Pty Ltd v Gilsan (International) Ltd [2006] NSWCA 171 …. 9.12, 9.23 Orleans, Duchess d’, Goods of (1859) 1 Sw & Tr 253; 164 ER 716 …. 12.22 Orr-Ewing’s Trustees v Orr-Ewing (1885) 13 R (HL) 1 …. 22.6 Osborne, Re [1928] St R Qd 129 …. 22.34 Osoba, dec’d, Re [1979] 1 WLR 247 …. 22.25 Overseas Food Importers & Distributors Ltd and Brandt, Re (1981) 126 DLR (3d) 422 …. 5.58 Owens Bank Ltd v Bracco [1992] 2 AC 443 …. 5.28 Owusu v Jackson [2005] 2 WLR 942 …. 4.38 O/Y Wasa SS Co Ltd v Newspaper Pulp and Wood Export Ltd (1949) 82 Lloyd’s L Rep 936 …. 8.49 OZ-US Film Productions Pty Ltd (in liq) v Heath [2000] NSWSC 967 …. 19.6, 19.8

Paramasivam v Flynn (1998) 90 FCR 489 …. 19.5, 19.6, 19.8, 19.10, 19.13, 23.22, 23.23 Park and Byon [2003] FamCA 121 …. 14.4, 14.8 Parkasho v Singh [1968] P 233 …. 13.15 Parma & Parma [2007] FamCA 670 …. 13.52 Parnell Manufacturing Pty Ltd v Lonza Ltd [2017] NSWSC 562 …. 4.16, 17.11 Parnell-Schoneveld v Repatriation Commission (2003) 74 ALD 37; [2003] FCA 153 …. 10.18, 10.20 Parsons & Whittemore Overseas Co Inc v Societe Generale de L’Industrie du Papier 508 F 2d 969 (2nd Cir, 1974) …. 6.32, 6.33 Pascarl & Oxley (edited) (2013) 49 Fam LR 364; [2013] FamCAFC 47 …. 15.27 Passlow v Butmac Pty Ltd [2012] NSWSC 225 …. 6.5 Patterson, Re; Ex parte Taylor (2001) 207 CLR 391; [2001] HCA 51 …. 10.35 Paul v Mid Coast Meat Co Pty Ltd [1995] 1 Qd R 658 …. 4.61, 4.69 Paulin, Re [1950] VLR 462 …. 22.34 Pavitt v Pavitt [2018] QSC 77 …. 5.45 PCH Offshore Pty Ltd v Dunn (No 2) (2010) 273 ALR 167; [2010] FCA 897 …. 2.77, 5.42, 9.10 Pedersen v Young (1964) 110 CLR 162 …. 1.6, 2.21, 2.23, 7.47, 11.1 Peer International Corp v Termidor Music Publishers Ltd [2004] 2 WLR 849 …. 8.50, 8.51, 8.59 Pegasus Leasing Ltd v Balescope Pty Ltd (1994) 63 SASR 51 …. 4.69, 4.75 — v Cadoroll Pty Ltd (1996) 59 FCR 152 …. 4.69, 4.92 — v Tieco International (Australia) Ltd (1993) 61 SASR 195 …. 4.69 Pemberton v Hughes [1899] 1 Ch 781 …. 14.50 Pendal Nominees Pty Ltd v M and A Investments Pty Ltd (1989) 18 NSWLR 383 …. 2.45 Penn v Lord Baltimore (1750) 1 Ves Sen 444; 27 ER 1132 …. 1.19, 3.9 Pepin v Bruyere [1900] 2 Ch 504 …. 22.19 Pergamon Press Ltd v Maxwell [1970] 1 WLR 1167 …. 23.22

P

P, Re [2004] 2 Fam LR 1057 …. 15.37 P (GE), an Infant, Re [1965] Ch 568 …. 15.18 Pabiyanov & Pabiyanova [2018] FamCA 168 …. 16.20 Padolecchia v Padolecchia [1968] P 314 …. 13.33 Pagliotti v Hartner (2009) 41 Fam LR 41; [2009] FamCAFC 18 …. 16.6, 16.7, 16.14 Pain v Holt (1919) 19 SR (NSW) 105 …. 22.34, 22.48 Paine, Re [1940] Ch 46 …. 13.33 Palmer v Turnbull [2018] QCA 112 …. 9.2 Papadopoulos v Papadopoulos [1930] P 55 …. 14.50 Paradise Enterprises Ltd v Kakavas [2010] VSC 25 …. 8.64, 17.33, 19.14 xliv



Table of Cases

Perlak Petroleum Maatschappij v Deen [1924] 1 KB 111 …. 9.10 Permanent Trustee Co (Canberra) Ltd v Finlayson (1967) 9 FLR 424 …. 11.6 — v — (1968) 122 CLR 338 …. 11.6, 22.14, 22.16 — v Permanent Trustee Co of New South Wales Ltd (1969) 14 FLR 246 …. 17.41 Perrett v Robinson [1985] 1 Qd R 83 …. 2.10 — v — (1988) 169 CLR 172 …. 1.29 Persian v Persian [1970] 2 NSWR 538 …. 13.26 Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225 …. 4.87 Peter Buchanan Ltd v McVey [1954] IR 89 …. 8.45 Petroleo Brasiliero v Mellitus Shipping [2001] 1 All ER (Comm) 993 …. 4.37 Petrotimor Companhia de Petroleos SARL v Commonwealth (2003) 197 ALR 461; [2003] FCAFC 3 …. 3.9 Pfalz, The [1921] Argus LR 39 …. 20.27 Philipson-Stow v Inland Revenue Commissioners [1961] AC 727 …. 20.18, 20.33 Phillips v Batho [1913] 3 KB 25 …. 16.17 — v Eyre (1870) LR 6 QB 1 …. 11.8, 11.9, 11.10, 11.12, 11.13, 11.15, 18.2, 18.32, 18.35, 18.36, 18.42 Phrantzes v Argenti [1960] 2 QB 19 …. 7.38 Piatek v Piatek (2010) 245 FLR 137; [2010] QSC 412 …. 19.6, 19.9 Pickering v Stephenson (1872) LR 14 Eq 322 …. 23.14 Picturesque Atlas Publishing Co v Campbell (1891) 24 SALR 145 …. 23.19 Pipon v Pipon (1744) Amb 25; 27 ER 14 …. 1.22, 10.3, 22.35 Placer (PNG) Pty Ltd v Dyno Nobel Asia Pacific Ltd [1999] NSWSC 1292 …. 19.12 Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483 …. 19.6 Plantagenet Wines Pty Ltd v Lion Nathan Wine Group Australia Ltd (2006) 229 ALR 327; [2006] FCA 247 …. 4.74 Platz v Lambert (1994) 12 WAR 319 …. 4.69 Playa Larga v I Congreso del Partido [1983] 1 AC 244 …. 3.14

Plozza & Plozza v South Australian Insurance Co Ltd [1963] SASR 122 …. 7.17, 7.36, 17.3, 18.36 Pocock v Universal City Studios LLC [2012] NSWSC 1481 …. 9.2 Point of Pay Pty Ltd v Roots [2012] VSC 380 …. 4.54 Ponticelli v Ponticelli [1958] P 204 …. 13.31, 13.39 Port of Melbourne Authority v Anshun (1981) 147 CLR 589 …. 5.42 Portelli v Seltsam Ltd [1988] VR 377 …. 2.16 Potinger v Wightman (1817) 3 Mer 67; 36 ER 26 …. 10.18 Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479 …. 3.5 Povey v Hordern [1900] 1 Ch 492 …. 22.53 Power Curber International Ltd v National Bank of Kuwait [1981] 3 All ER 607 …. 21.28 Prekons Insaat Sanayi AS v Rowlands Castle Contracting Group Ltd [2006] EWHC 1367 …. 7.46 Preston v Melville (1841) 8 Cl & F 1; 8 ER 1 …. 22.4 — v Preston [1963] P 411 …. 13.29 Price, Re; Tomlin v Latler [1900] 1 Ch 442 …. 22.42 Price v Dewhurst (1837) 8 Sim 279; 59 ER 111 …. 5.33 Priest, Re [1944] Ch 58 …. 22.40 Princess Reuss v Bos (1871) LR 5 HL 176 …. 23.16 Privatbrauerei Erdinger Weissrau Werner Brombach GmbH v World Brands Australia Pty Ltd [2016] WASC 9 …. 5.57 Pro Swing Inc v Elta Golf Inc [2006] 2 SCR 612 …. 5.24 Proactive Building Solutions v Keck [2013] NSWSC 1500 …. 4.20, 8.20, 17.5, 17.53 Programmed Maintenance Services Ltd v Shell Co of Australia Ltd [2000] QDC 249 …. 4.79 Progressive Holdings Inc v Crown Life Insurance Co (2000) 147 Man R (2d) 175 …. 4.11 Prowse v European & American Steam Shipping Co, The Peerless (1860) 13 Moo PC 484; 15 ER 182 …. 9.10 xlv





Private International Law in Australia

Pryce, Re [1911] 2 Ch 286 …. 22.53 PT Arutmin Indonesia v PT Thiess Contractors Indonesia [2013] QSC 332 …. 17.40 PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1 …. 5.24 PT Garuda Indonesia v Birgen Air [2002] SGCA 12 …. 6.21 PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2011) 192 FCR 393; [2011] FCAFC 52 …. 3.16 — v — (2012) 247 CLR 240; [2012] HCA 33 …. 3.13, 3.16, 3.20 Puccini Festival Australia Pty Ltd v Nippon Express (Australia) Pty Ltd (2007) 17 VR 36; [2007] VSC 288 …. 2.43 Pugh v Morrison [2011] ACTSC 44 …. 18.20 Pulido v RS Distribution Pty Ltd (2003) 177 FLR 401; [2003] ACTSC 61 …. 7.48 Puttick v Tenon Ltd (2008) 238 CLR 265; [2008] HCA 54 …. 4.44, 4.45, 4.46, 4.54, 18.33, 18.34

R

R (Child Abduction), Re (1995) 1 FLR 716 …. 15.47 R v Brentwood Superintendent Registrar of Marriages; Ex parte Arias [1968] 2 QB 956 …. 13.33, 13.36 — v Burgess; Ex parte Henry (1936) 55 CLR 608 …. 10.49 — v Byrne (1867) 6 SCR (NSW) 302 …. 13.26 — v Ford (1913) 32 NZLR 1219 …. 9.12 — v Gowda; R v Mashru [2018] QCA 31 …. 13.4 — v Home Secretary; Ex parte L [1945] KB 7 …. 10.51 — v International Trustee for the Protection of Bondholders AG [1937] AC 500 …. 17.6, 17.15 — v Langdon (1953) 88 CLR 158 …. 15.61 — v Macdonald; Ex parte Macdonald (1953) 88 CLR 197 …. 2.19 — v Madan [1961] 2 QB 1 …. 3.34 — v McLeod (1890) 11 LR (NSW) 218 …. 5.9 — v Millis (1844) 10 Cl & Fin 534; 8 ER 844 …. 13.26, 13.27 — v Oregan; Ex parte Oregan (1957) 97 CLR 323 …. 2.19 — v Superintendent of Vine Street Police Station; Ex parte Liebmann [1916] 1 KB 268 …. 10.51 — v Tan [1983] QB 1053 …. 13.11 — v White and Noonan; Ex parte TA Field Pty Ltd (1975) 133 CLR 113 …. 5.75 — v Williams [1942] AC 541 …. 20.16 Radwan v Radwan (No 2) [1973] Fam 35 …. 13.33, 13.35, 13.53 Raiffeisen Zentralbank Osterreich AG v Five Star Trading LLC [2001] QB 825; [2001] 3 All ER 257; [2001] EWCA Civ 68 …. 7.22, 7.23, 17.3, 20.10, 21.21, 21.25, 21.26, 21.28, 21.34 Rainford v Newell-Roberts [1962] IR 95 …. 5.19 Raithatha v Ariel Industries PLC (2012) 212 FCR 139; [2012] FCA 1526 …. 24.7 Raja Bahrin, Marriage of (1986) 11 Fam LR 233 …. 15.71 Ralli Bros v Compañia Naviera Sota y Aznar [1920] 2 KB 287 …. 17.39, 17.40

Q

QBE Insurance (Aust) Ltd v Hotchin (administrator of the estate of Hotchin (dec’d)) [2011] NSWSC 681 …. 4.89 QRS 1 ApS v Frandsen [1999] 1 WLR 2169 …. 8.45 Quarter Enterprises Pty Ltd v Allardyce Lumber Co Ltd (2014) 85 NSWLR 404; [2014] NSWCA 3 …. 5.30, 5.57, 5.63 Quazi v Quazi [1980] AC 744 …. 14.13, 14.21 Queensland v Property Nominees Pty Ltd (1982) 6 ACLR 739 …. 2.11 Queensland Estates Pty Ltd v Collas [1971] Qd R 75 …. 17.11 Queensland Mercantile Agency Co Ltd, Re [1891] 1 Ch 536 …. 21.29, 21.30, 21.32 Queensland Nickel Pty Ltd (in liq) v Queensland Nickel Sales Pty Ltd [2017] QSC 305 …. 9.2, 9.9 Quick v Quick [1953] VLR 224 …. 13.26 Quinlan v Safe International Försäkrings AB (2006) 14 ANZ Ins Cas 61-693; [2005] FCA 1362 …. 4.18, 4.26 Qureshi v Qureshi [1972] Fam 173 …. 13.16 xlvi



Table of Cases

Ralston, Re [1906] VLR 689 …. 20.29, 22.18 Ramanathan v Naidu [2007] NSWSC 693 …. 5.29, 5.63 Randwick Labor Club Ltd v Amalgamated Television Services Pty Ltd [2000] NSWSC 906 …. 7.40 Razelos v Razelos (No 2) [1969] 3 All ER 929 …. 2.8 RBS Rights Issue Litigation, Re [2016] EWHC 3161 …. 7.34 RCB v The Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47 …. 15.7 Recyclers of Australia Pty Ltd v Hettinga Equipment Inc (2000) 100 FCR 420; [2000] FCA 547 …. 6.20 Red Fox, Marriage of 542 P 2d 918 (1975) …. 1.34 Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190 …. 18.3 Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd (2015) 89 NSWLR 104; [2015] NSWCA 73 …. 18.40 Redcliffe Resources Ltd, The Matter of [2016] FCA 404 …. 20.16 Reese Bros Plastics Ltd v Hamon-Sobelco Aust Pty Ltd (1988) BCL 91 …. 2.52 Regazzoni v KC Sethia (1944) Ltd [1958] AC 301 …. 8.62, 17.40 Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10 …. 1.25, 1.29, 2.78, 3.5, 3.11, 4.43, 4.46, 4.51, 4.54, 7.40, 7.49, 9.1, 9.2, 9.4, 9.7, 9.30, 11.19, 18.2 Reid v Wright [2012] NSWSC 1149 …. 7.49 Reidy v Trustee of Christian Brothers (1994) 12 WAR 583 …. 7.29 Reihana, Marriage of (1980) 6 Fam LR 134 …. 15.71 Reinsurance Australia Corp Ltd v HIH Casualty and General Insurance Ltd (in liq) (2003) 254 ALR 29; [2003] FCA 56 …. 4.18, 4.24, 4.30 Renault v Zhang (2002) 210 CLR 491 [2002] HCA 10 …. 18.4, 18.20, 18.23, 18.25, 18.28 Republica de Guatemala v Nunez [1927] 1 KB 669 …. 21.23, 21.24, 21.25, 21.27 Resort Condominiums International Inc v Bolwell (1993) 118 ALR 655 …. 6.35, 6.38 Reyes v Al-Malki [2017] UKSC 61 …. 3.30

Reynolds v Reynolds (1979) FLC 90-728 …. 16.8 Richard West Partners (Inverness) Ltd v Dick (1969) 2 Ch 424 …. 3.9 Richards v Director-General, Dept of Child Safety [2007] FamCA 65 …. 15.45 Richardson v Mellish (1824) 2 Bing 229; 130 ER 294 …. 8.57 Rickshaw Investments Ltd v Nicolai Baron von Uexkull [2006] SGCA 39; [2007] 1 SLR 377 …. 4.38, 19.5, 19.11 Rimini Ltd v Manning Management and Marketing Pty Ltd [2003] 3 NZLR 22 …. 2.16 Rinehart v Welker [2012] NSWCA 95 …. 6.5 Risdon Iron and Locomotive Works v Furness [1906] 1 KB 49 …. 23.20 Risk v Risk [1951] P 50 …. 13.20 Ritchie, Re [1942] 3 DLR 330 …. 20.29 River Gum Homes Pty Ltd v Meridian Pty Ltd [2010] QCA 293 …. 4.74, 4.75 Robert v Robert [1947] P 164 …. 13.39 Roberta, The (1937) 58 Lloyd’s Rep 159 …. 7.33 Robertson v Struth (1844) 5 QB 941; 114 ER 1503 …. 5.9 Robinson v Bland (1760) 1 Wm Bl 234; 2 Burr 1077; 97 ER 717; 96 ER 129 …. 1.21, 1.22 — v Studorp Ltd (2013) 279 FLR 329; [2013] QSC 238 …. 9.25 Robinson-Scott v Robinson-Scott [1958] P 71 …. 14.35 Robson v Robson [2010] QSC 378 …. 10.61 Robotunits Pty Ltd v Mennel [2015] VSC 268 …. 6.4, 6.5, 6.6 Rochford v Dayes (1989) 84 ALR 405 …. 2.19 Rocklea Spinning Mills Pty Ltd v Consolidated Trading Corp [1995] 2 VR 181 …. 4.54 Roerig v Valiant Trawlers Ltd [2002] 1 WLR 2304 …. 7.41 Roff v Aqua Distributors Pty Ltd [1996] 966 FCA 1 …. 4.69 Ropat Pty Ltd v Scarfe [1999] 2 Qd R 102 …. 4.69 Ross, Re; Ross v Waterfield [1930] 1 Ch 377 …. 8.20, 8.29, 8.30, 8.32 Ross v Ross [2010] NZCA 447 …. 5.34, 8.58

xlvii





Private International Law in Australia

Rossano v Manufacturers Life Insurance Co [1963] 2 QB 352 …. 9.10, 20.3 Rosseel NV v Oriental Commercial & Shipping Co (UK) Ltd [1991] 2 Lloyd’s Rep 625 …. 6.35 Rothwells Ltd (in liq) v Connell (1993) 119 ALR 538 …. 11.6 Routley v Bridgestone Australia Ltd [2004] NSWDDT 4 …. 7.40 Row v Jugg [1911] 1 Ch 179. …. 21.5 Rowe v Silverstein [1996] 1 VR 509 …. 5.69 Rowett Leaky & Co Ltd v Scottish Provident Institution [1927] 1 Ch 55 …. 17.41 Roy Hill Holdings Pty Ltd v Samsung C&T Corp [2015] WASC 458 …. 6.4, 6.13, 6.14 Royal Bank of Scotland plc v Babcock & Brown DIF III Global Co-Investment Fund LP [2017] VSCA 138 …. 4.25 Royal Trust Co v Attorney-General (Alberta) [1930] AC 144 …. 20.11 — v Provincial Secretary — Treasurer of New Brunswick [1925] 2 DLR 49 …. 20.14 Rubin v Eurofinance SA; New Cap Reinsurance Corp (in liq) v AE Grant [2013] 1 AC 236 …. 24.13, 24.16, 24.17, 24.21 Rucker, Re; Ex parte Rucker (1834) 3 LJ Bcy 104 …. 20.3 Rudd v Rudd [1924] P 72 …. 14.45 Ruding v Smith (1821) 2 Hag Con 371; 161 ER 774 …. 10.17, 13.30 Rumput (Panama) SA v Islamic Republic of Iran Shipping Lines (The ‘Leage’) [1984] 2 Lloyd’s Rep 259 …. 6.9 Russian and English Bank v Baring Bros & Co [1936] AC 405 …. 24.26 Russian Commercial & International Bank, Re [1955] Ch 148 …. 24.26 Rutherford & Safi [2014] FamCA 154 …. 13.52 Ryder v Hartford Insurance Co [1977] VR 257 …. 7.14, 7.17, 7.19, 18.36

S

S (A Child) (Abduction: Rights of Custody), Re [2012] 2 AC 257 …. 15.51 S (a Minor) (Abduction: Custody Rights), Re [1993] Fam 242 …. 15.54

S (minors) (abduction: wrongful retention), Re [1994] Fam 70 …. 15.39 S (Minors) (Child Abduction: Wrongful Retention), Re [1994] 1 FCR 83 …. 10.69 S and S Ltd v XYZ Ltd [2016] NZHC 26 …. 19.18 SA Consortium General Textiles v Sun and Sand Agencies Ltd [1978] QB 279 …. 8.43 Sadler v Robins (1808) 1 Camp 253; 170 ER 948 …. 5.23 Safran v Chani (1969) 14 FLR 128 …. 2.15 — v — (1970) 72 SR (NSW) 146 …. 2.59 Sahni & Kamdar [2018] FCCA 937 …. 16.8 Sahrawi & Hadrami [2018] FamCAFC 170 …. 15.27 Salacup, Marriage of (1993) 17 Fam LR 141 …. 10.28 Salfinger v Niugini Mining (Australia) Pty Ltd (No 3) [2007] FCA 1532 …. 21.36 Saliba v Falzon [1998] NSWSC 302 …. 19.20 Saltram Wine Estates Pty Ltd v Independent Stave Co (1992) 57 SASR 156 …. 2.41 Salvesen v Administrator of Austrian Property [1927] AC 641 …. 14.28, 14.50 Samarni v Williams [1980] 2 NSWLR 389 …. 2.95, 17.26 Sanders, Goods of [1900] P 292 …. 22.11 Sangha v Mander (1985) 47 RFL (2d) 212 …. 13.39 Sankil and Sankil (2007) FLC 93-351; [2007] FamCA 1381 …. 14.8 Sauber Motorsport AG v Giedo van der Garde BV (2015) 317 ALR 786 …. 6.5, 6.32, 6.38 Savenis v Savenis and Szmeck [1950] SASR 309 …. 13.28 Saxby v Fulton [1909] 2 KB 208 …. 8.64, 9.13, 17.38 Sayers v International Drilling Co NV [1971] 3 All ER 163 …. 7.13, 12.26, 12.27, 18.47 Schemmer v Property Resources Ltd [1975] Ch 273 …. 8.55 Schenck, Marriage of (1981) 7 Fam LR 170 …. 15.71 Schib Packaging Srl v Emrich Industries Pty Ltd (2005) 12 VR 268; [2005] VSCA 236 …. 2.43 Schibsby v Westenholz (1870) LR 6 QB 155 …. 1.34, 5.12

xlviii



Table of Cases

Schintz, Re; Schintz v Warr [1926] 1 Ch 711 …. 23.13 Schmidt v Won [1998] 3 VR 435 …. 2.35, 4.69, 4.75 Schnabel v Lui [2002] NSWSC 15 …. 5.22, 8.42 Schnapper, Re [1928] Ch 420 …. 22.39 Schumacher v Summergrove Estates Ltd [2012] NZHC 3177 …. 3.9 — v — [2013] NZHC 1387 …. 3.9 — v — [2014] 3 NZLR 599 …. 4.38, 19.15, 19.27 Schwarz, Marriage of (1985) 10 Fam LR 235 …. 15.71 Schwebel v Ungar (1963) 42 DLR (2d) 622 …. 13.32 — v — (1964) 48 DLR (2d) 644 …. 8.4, 8.5, 8.6, 8.7, 8.8, 8.9, 8.10 Schweitzer v Kronen Verwaltungs GmbH [1998] VSC 190 …. 2.50 Scott v Attorney-General (1886) 11 PD 128 …. 13.40 Scottish National Orchestra Society v Thomson’s Executor 1969 SLT 325 …. 22.14, 22.15 Scrimshire v Scrimshire (1752) 2 Hag Con 395; 161 ER 782 …. 1.22, 10.18, 13.22 Sealey v Callan [1953] P 135 …. 16.14 Secretary, Attorney-General’s Dept (Cth) v Donald [2011] FamCA 482 …. 10.68 Secretary, Department of Family and Community Services v Padwa (2016) 55 Fam LR 261; [2016] FamCAFC 57 …. 15.31 Secretary, Dept of Social Security v SRA (1993) 118 ALR 467 …. 13.11 Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v HR & CD [2016] NSWSC 1926 …. 13.4 Secure Capital SA v Credit Suisse AG [2015] EWHC 388 …. 7.23 — v — [2017] EWCA Civ 1486 …. 7.23 Sedgwick Ltd v Bain Clarkson Ltd (1994) 56 FCR 578 …. 2.75 Seegner v Marks (1895) 21 VLR 491 …. 5.12 Seeley International Pty Ltd v Electra Air Conditioning BV (2008) 246 ALR 589; [2008] FCA 29 …. 6.6

Sehota, Re [1978] 3 All ER 385 …. 13.19 Sells v Rhodes (1905) 26 NZLR 87; Kaur v Narula [2007] FMCAfam 657 …. 10.27 Sennar (No 2), The [1985] 1 WLR 490 …. 5.40 Sentry Corp v Peat Marwick (1990) 95 ALR 11 …. 4.53 Severstal Export GmbH v Bhushan Steel Ltd (2013) 84 NSWLR 141; [2013] NSWCA 102 …. 5.24 Seymour-Smith v Electricity Trust of South Australia (1989) 17 NSWLR 648 …. 2.31 Shagang South-Asia (Hong Kong) Trading Co Ltd v Daewoo Logistics [2015] EWHC 194 (Comm) …. 6.21 Shahnaz v Rizwan [1965] 1 QB 390 …. 13.19 Shamil Bank of Bahrain EC v Beximco Pharmaceuticals Ltd [2004] 2 Lloyd’s Rep 1 …. 17.1 Shanghai Electric Group Pty Ltd v PT Merak Energi Indonesia [2010] SGHC 2 …. 7.38 Sharpe v Crispin (1869) LR 1 P&D 611 …. 10.18 Sharps Commercials Ltd v Gas Turbines Ltd [1956] NZLR 819 …. 5.20 Sheldon v Douglas (No 1) [1963] NSWR 129 …. 14.38 Sheldon Pallet Manufacturing Co Pty Ltd v New Zealand Forest Products Ltd [1975] 1 NSWLR 141 …. 2.51 Shelling v Farmer (1726) 1 Stra 646; 93 ER 756 …. 1.22 Shenken v Phoenix Life Ltd [2015] ScotCS CSOH …. 22.14 Sherrin Hire Pty Ltd v Tidd Ross Todd Ltd (No 2) [2016] FCA 891 …. 9.24 Ship ‘Gem of Safaga’ v Euroceanica (UK) Ltd (2010) 182 FCR 27; [2010] FCAFC 14 …. 20.9 Ship ‘Sam Hawk’ v Reiter Petroleum Inc (2016) 246 FCR 337 …. 7.50 Shipowners’ Mutual Protection and Indemnity Association (Luxembourg) v Containerships Denizcilik Nakliyat VE Ticaret AS (The Yusuf Ceprioglu) [2016] EWCA Civ 386 …. 7.13 — v Hodgetts [1999] 2 Qd R 58 …. 6.12 Shire of Yeerongpilly v Love (1906) 1 QJPR 73 …. 2.83 xlix





Private International Law in Australia

Shoalhaven City Council v Ellis [2012] NSWLEC 225 …. 11.9 Showlag v Mansour [1995] 1 AC 431 …. 5.37, 5.68 Showtime Touring Group Pty Ltd v Mosely Touring Inc [2010] NSWSC 974 …. 2.52 Siam Steel International PLC v Compass Group (Australia) Pty Ltd [2014] WASC 415 …. 6.14 Sibly & Cassidy [2015] FamCA 912 …. 16.4 Siegelman v Cunard White Star Ltd 221 F 2d 189 (1955) …. 1.31 Sierra Leone Telecommunications Co Ltd v Barclays Bank plc [1998] 2 All ER 821 …. 23.20, 23.22 Sigley & Sigley (2018) 57 Fam LR 347; [2018] FamCA 3 …. 15.74 Sigma Coachair Group Pty Ltd v Bock Australia Pty Ltd [2009] NSWSC 684 …. 2.77 Sim v Robinow (1892) 19 R 665 …. 4.33 Sim Hok Khun @ Hadi Gunawan v Henry Budi Harsono @ Sim Hok Kiong [2012] SGHC 256 …. 19.28 Simmons v Simmons (1917) 17 SR (NSW) 419 …. 8.32, 8.33, 9.2 Simonfi v Fimmel [2000] ACTSC 54 …. 4.76 Simonin v Mallac (1860) 2 Sw & Tr 67; 104 ER 917 …. 13.23 Simons v Simons [1939] 1 KB 490 …. 16.17 Sinclair v Sinclair (1798) 1 Hag Con 294; 161 ER 557 …. 14.42 Singh v Commonwealth (2004) 222 CLR 322 …. 1.6, 10.35, 10.46, 10.49 — v Singh (2009) 253 ALR 575; [2009] WASCA 53 …. 3.9, 3.11 Sinha Peerage Claim [1946] 1 All ER 348 …. 13.19 Sino Dragon Trading Ltd v Noble Resources International Pte Ltd [2016] FCA 1131 …. 6.29, 6.33, 6.38 Sirdar Gurdyal Singh v Rajah of Faridkote [1894] AC 670 …. 5.19 SK Foods LP v SK Foods Australia Pty Ltd (in liq) (No 3) (2013) 302 ALR 260; [2013] FCA 526 …. 5.39 Skelton v Z487 Ltd [2014] NZHC 707 …. 4.56 Smith & Saywell (1980) FLC 90-856 …. 16.8

Soares, Marriage of (1989) 13 Fam LR 163 …. 15.28 Societe Co-op Sidmetal v Titan International Ltd [1966] 1 QB 828 …. 5.20 Société Eram Shipping Co Ltd v Compagnie Internationale de Navigation [2003] 3 WLR 21 …. 20.10, 21.28 Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 …. 4.87, 4.89 — v United States District Court for the Southern District of Iowa 482 US 522 (1986) …. 1.34 Soderberg v Soderberg [2016] FamCA 71 …. 16.7 Soleimany v Soleimany [1999] QB 785 …. 6.38 Solomon v Solomon (1912) 29 WN (NSW) 68 …. 10.29 Somers v Fournier (2002) 214 DLR (4th) 611 …. 7.41, 7.43, 7.45 Somerville v Lord Somerville (1801) 5 Ves Jun 750; 31 ER 839 …. 10.7, 10.17, 10.18, 10.46 Song v Shi [2011] NSWSC 1207 …. 14.11 Sottomayor v De Barros (1877) LR 3 PD 1 …. 17.29 — v — (No 2) (1879) 5 PD 94 …. 13.37, 13.38, 13.44, 13.55 South Adelaide Football Club v Fitzroy Football Club (No 1) (1988) 49 SASR 380 …. 2.57 South African Breweries Ltd v King [1899] 2 Ch 173 …. 17.34 South Head & District Synagogue (Sydney) (Administrators Appointed), Re [2017] NSWSC 823 …. 17.1 Sowa v Sowa [1961] P 70 …. 13.20 Soysa & Commissioner of Police [2011] FamCAFC 39 …. 15.40 Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 …. 1.18, 4.34, 4.38, 4.39, 4.41, 4.43, 4.46, 4.49, 4.50, 4.51, 4.56, 4.65, 4.68, 4.71, 4.73, 23.8 Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69 …. 19.8, 19.15 — v — [2013] FCAFC 106 …. 5.33, 5.34 SS Pacific Star v Bank of America Trust & Savings Assn [1965] WAR 159 …. 5.18 l



Table of Cases

S-T (formerly J) v J [1998] Fam 103 …. 13.11 St George Bank Ltd v McTaggart [2003] 2 Qd R 568; [2003] QCA 059 …. 4.78, 4.79 St Pierre v South American Stores (Gath & Chaves) Ltd [1936] 1 KB 382 …. 4.33 Stafford Allen & Sons Ltd v Pacific Steam Navigation Co [1956] 2 All ER 716 …. 17.26 Stammbach v MBD Energy Ltd [2014] NSWSC 807 …. 4.74 Standard Chartered Bank Ltd v Inland Revenue Commissioner [1978] 3 All ER 644 …. 20.16 Standard Insurance Company Ltd, Re [1968] Qd R 118 …. 24.6, 24.30 Stanford International Bank, Re [2009] EWHC 1441 …. 24.7 Stankus v Stankus (1974) 9 SASR 20 …. 13.32 Stanley v Bernes (1830) 3 Hagg Ecc 373; 162 ER 1190 …. 10.7 Stanley Kerr Holdings Pty Ltd v Gibor Textile Enterprises Ltd [1978] 2 NSWLR 372 …. 2.41, 17.18 Starkowski (otherwise Urbanski) v AttorneyGeneral [1954] AC 155 …. 13.4, 13.24 Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG [2014] 1 All ER 590; [2013] UKSC 70 …. 4.28 Starr-Diamond v Diamond (No 3) [2013] NSWSC 351 …. 2.35 State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 154 CLR 579 …. 2.23 State Central Authority & Spring-Ernst (No 2) [2013] FamCA 906 …. 15.8 State Central Authority and LJK (2004) FLC 93-200 …. 15.40 Steen and Black (2000) FLC 93-005 …. 14.8 Stein v Valkenhuysen (1858) EB and E 65; 120 ER 431 …. 2.10 Sterling Pharmaceuticals Pty Ltd v Boots Co (Aust) Pty Ltd (1992) 34 FCR 287 …. 4.53 Stern v National Australia Bank [1999] FCA 1421 …. 5.34, 8.58 Stevens v Head (1993) 176 CLR 433 …. 1.25, 1.29, 7.24, 7.25, 7.26, 7.27, 7.28, 7.39, 11.10, 11.12, 11.23, 11.24

Stewart v Australian Crime Commission (2012) 206 FCR 347; [2012] FCAFC 151 …. 7.34 — v Franmara Inc (No 2) [2012] NZHC 1771 …. 3.5 Stillianesis v Stillianesis [2017] NSWSC 1189 …. 14.11 Stirling-Maxwell v Cartwright (1879) 11 Ch D 522 …. 22.13 Stoeck v Public Trustee [1921] 2 Ch 67 …. 10.49 Stransky v Stransky [1954] P 428 …. 10.57, 10.58 Street v Queensland Bar Association (1989) 168 CLR 461 …. 11.21, 11.25 Studd v Cook (1883) 8 App Cas 577 …. 22.25 Studorp Ltd v Robinson [2012] NSWCA 382 …. 4.51 — v — [2014] QCA 174 …. 9.25 Subbotovsky v Waung (1968) 72 SR (NSW) 242 …. 7.36 — v — [1968] 3 NSWR 261 …. 9.23 Sudlow v Dutch Rhenish Railway (1855) 21 Beav 43; 52 ER 724 …. 23.13 Sue v Hill (1999) 199 CLR 462; [1999] HCA 30 …. 1.6, 10.49, 10.51, 12.14 Sulamerica Cia Nacional de Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638 …. 6.20 Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237 …. 4.88 — v — (No 1) [2012] VSC 1 …. 4.88 Surgibit IP Holdings Pty Ltd v Ellis (No 2) [2017] NSWSC 1379 …. 8.43 Suria, In the Marriage of (1977) 3 Fam LR 11,541 …. 13.31 Sussex Peerage Case (1844) 11 Cl & F 85; 8 ER 1034 …. 9.10 Suzlon Energy Ltd v Bangad (No 3) [2012] FCA 123 …. 9.2 Svirkis v Gibson [1977] 2 NZLR 4 …. 5.29 Swan, In the Will of (1871) 2 VR (IE&M) 47 …. 13.4, 13.32 Swanson v Harley (1995) 102 NTR 25 …. 4.69 — v — (1995) 103 NTR 25 …. 2.33, 2.39 li





Private International Law in Australia

Sweedman v Transport Accident Commission (2006) 226 CLR 362; [2006] HCA 8 …. 1.29, 7.13, 7.37, 11.17, 11.18, 11.20, 11.22, 11.23, 11.27, 11.28, 12.4, 12.14, 17.3, 18.38, 18.39, 18.40 Swiss Bank Corp v Boehmische Industrial Bank [1923] 1 KB 673 …. 21.28 Syal v Heyward [1948] 2 KB 443 …. 5.27 Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 …. 2.52, 2.75, 2.79, 17.50, 18.13 Sykes v Cleary (No 2) (1992) 176 CLR 77 …. 10.49, 10.50, 10.51, 10.52, 10.53, 12.14 Szechter v Szechter [1971] P 286 …. 13.31 Szintay v Szintay (1954) 73 WN (NSW) 330 …. 15.28

Taylor v Begg [1932] NZLR 286 …. 5.23 — v Lovegrove (1912) 18 ALR (CN) 22 …. 21.14 — v Taylor (SC (Vic), Lush J, 17 September 1970, unreported) …. 15.70 — v Trustees of Christian Brothers [1994] Aust Torts Reps 81-288 …. 4.69 TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 311 ALR 387; [2014] FCAFC 83 …. 6.32, 6.38 — v The Judges of the Federal Court of Australia (2013) 295 ALR 596; [2013] HCA 5 …. 6.39 Tedja and Sony [2015] FamCAFC 13 …. 14.4, 14.8 Telesto Investments Ltd v UBS AG (2012) 262 FLR 119; [2012] NSWSC 44 …. 5.41, 2.75 — v — (2013) 94 ACSR 29; [2013] NSWSC 503 …. 4.14, 4.22, 4.23, 4.42, 5.15, 5.22, 5.39, 5.41, 5.42 Templeman and Linden [2015] FamCA 528 …. 14.4 Teo v Guan (2015) 296 FLR 172; 53 Fam LR 248; [2015] FamCAFC 94 …. 16.6, 16.8, 19.20 Terrell v Secretary of State for the Colonies [1953] 2 QB 482 …. 9.12 Terry (dec’d), Re [1951] NZLR 30 …. 20.30 Teves and Campomayor, In the Marriage of [1995] FLC 92-578 …. 13.32, 13.58 Texas v White 19 L Ed 277 (1868) …. 8.38 Tharsis Sulphur & Copper Co Ltd v Société Industrielle et Commerciale des Métaux (1889) 58 LJKB 435 …. 2.95 THC Holding Pty Ltd v CMA Recycling Pty Ltd (Admin Apptd) (2014) 101 ACSR 202; [2014] NSWSC 1136 …. 17.16 Thompson, Marriage of (1990) 14 Fam LR 542 …. 15.40 Thomson v Harding (1853) 2 El & Bl 630; 118 ER 904 …. 22.15 Thor Shipping A/S v Ship Al Duhail (2008) 173 FCR 524; [2008] FCA 1842 …. 20.9 Thorn-L & M Appliances Pty Ltd v Claudianos [1970] Qd R 141 …. 7.11 Through Transport Mutual Insurance Assn (Eurasia) Ltd v New India Assurance Co Ltd, The Hari Bhum [2004] 1 Lloyd’s Rep 206 …. 4.90

T

T (Minors) (International Child Abduction: Access), Re [1993] 3 All ER 127 …. 15.58 Taczanowska v Taczanowski [1957] P 301 …. 13.29 Taffa and Taffa [2009] FamCA 85 …. 14.30 Taffa and Taffa (Summary Dismissal) [2012] FamCA 181 …. 16.7 Tahiri v Minister for Immigration and Citizenship (2012) 293 ALR 526; [2012] HCA 61 …. 9.1 Tai-Soo Suk v Hanjin Shipping Co Ltd [2016] FCA 1404 …. 24.11 Tallerman and Co Pty Ltd v Nathan’s Merchandise (Vic) Pty Ltd (1957) 98 CLR 93 …. 2.53 Talwar and Sarai [2018] FamCAFC 152 …. 9.2, 9.26 Tamburin, In the Estate of (2014) 119 SASR 143; [2014] SASC 58 …. 22.11 Tang, Re [2017] VSC 59 …. 10.9, 10.27, 22.35 Tang, Re [2017] VSCA 171 …. 9.23, 22.35 Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332 …. 6.9 Tassell v Hallen [1892] 1 QB 321 …. 2.83 Taurus Funds Management Pty Ltd v Aurox Resources Ltd [2010] NSWSC 1223 …. 4.61 Taylor, Marriage of (1988) 12 Fam LR 423 …. 15.28 Taylor, Re; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194 …. 10.57, 10.58 lii



Table of Cases

Tipperary Developments Pty Ltd v State of Western Australia (2009) 38 WAR 488; [2009] WASCA 126 …. 7.35, 17.31 Tirta v Lim [2012] FamCA 63 …. 10.60 Tisand Pty Ltd v Owners of Ship MV ‘Cape Moreton’ (Ex ‘Freya’) (2005) 143 FCR 43; [2005] FCAFC 68 …. 20.9 Titchfield Management Ltd v Vaccinoma Inc (2008) 68 ACSR 448; [2008] NSWSC 1196 …. 24.26 TMW, Ex parte [1981] Qd R 436 …. 15.18 Todd Shipyards Corporation v Altema Compania Maritima SA (The Ioannis Daskalelis) …. 7.50 Tolofson v Jensen [1994] 3 SCR 1022 …. 7.28 Toronto General Trusts Corp v R [1919] AC 679 …. 20.12 Toyo Engineering Corp v John Holland Pty Ltd [2000] VSC 553 …. 6.36 Tracy v Tracy (1939) 39 SR (NSW) 447 …. 14.13 Trade Practices Commission v Collings Construction Co Pty Ltd (1994) 53 FCR 137 …. 4.69 — v Manfal Pty Ltd (1990) 21 FCR 230 …. 2.30 Transfield Philippines Inc v Pacific Hydro Ltd [2006] VSC 175 …. 6.7 Translink Shipping Ltd v Compagnie Wallisienne de Navigation SARL (1991) 37 Fiji LR 46 …. 4.38 Transpac Capital Pte Ltd v Buntoro [2008] NSWSC 671 …. 6.37 Transport Accident Commission v Sweedman (2004) 10 VR 31; 210 ALR 140; [2004] VSCA 162 …. 11.17, 11.25 Travers v Holley [1953] P 246 …. 1.34, 14.25, 14.27, 14.31, 14.32, 14.33, 14.34, 14.36, 14.37, 14.38, 14.41 Traversi’s Estate, Re 64 NYS 2d 453 (1946) …. 22.46 Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1993) 36 FCR 406 …. 5.40 Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2) (2012) 201 FCR 535; [2012] FCA 276 …. 6.38 Trendtex Trading Corp v Central Bank of Nigeria [1977] QB 529 …. 3.16

Trepca Mines Ltd, Re [1960] 3 All ER 304 …. 5.20 Tribond Developments Pty Ltd v AttorneyGeneral of South Australia [1997] FCA 106 …. 4.69 Tricon Industries Pty Ltd v Abel Lemon and Co Pty Ltd [1988] 2 Qd R 464 …. 2.41 Trina Solar (US) Inc v Jasmin Solar Pty Ltd (2017) 247 FCR 1; [2017] FCAFC 6 …. 4.14, 17.28 Trnka, Marriage of (1984) 10 Fam LR 213 …. 15.74 Trotter v Trotter (1828) 4 Bli NS 502; 5 ER 179 …. 22.42 Tucker, In the Goods of (1864) 3 Sw and Tr 585; 34 LJPM & A 29; 164 ER 1402 …. 2.88, 22.4 Tulloch v Williams (1846) 8 D 657 …. 4.35 Turelin Nominees v Dainford Ltd (1983) 47 ALR 326 …. 2.30 Turner v Grovit [2005] 1 AC 101 …. 4.38 Twin Benefits Ltd v Barker [2017] EWHC 1412 …. 19.3 Tyburn Productions Ltd v Conan Doyle [1991] Ch 75 …. 3.5 Tycoon Holdings Ltd v Trencor Jetco Inc (1992) 34 FCR 31 …. 2.46 Tyler v Judges of the Court of Registration 55 NE 812 (1900) …. 2.1 Tzortzis v Monark Line AB [1968] 1 All ER 949 …. 17.13

U

Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd (2011) 277 ALR 415; [2011] FCA 131 …. 6.32, 6.38 Uhlmann v Harris (No 2) [2018] QSC 28 …. 2.35, 3.6, 11.14, 22.34 Ulvstig (dec’d), Re [2000] QSC 66 …. 22.31, 22.45 Udny v Udny (1869) LR 1 Sc & Div 441 …. 10.7, 10.9, 10.15 Ungar v Ungar [1967] 2 NSWR 618 …. 13.32 Union Nationale des Cooperatives Agricoles de Cereales v Robert Caterall & Co Ltd [1959] 2 QB 44 …. 6.35 Union Shipping New Zealand Ltd v Morgan (2002) 54 NSWLR 690; [2002] NSWCA 124 …. 4.46, 18.16 liii





Private International Law in Australia

Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 …. 12.4 United Railways of the Havana and Regla Warehouses Ltd, Re [1960] Ch 52 …. 17.5, 17.16, 17.43 United Railways of the Havana and Regla Warehouses Ltd, Re [1961] AC 1007 …. 17.15 United States of America v Inkley [1989] 1 QB 255 …. 8.41, 8.53 United States Securities and Exchange Commission v Manterfield [2009] EWCA Civ 27 …. 8.55 United States Surgical Corporation v Hospital Products International Pty Ltd [1983] 2 NSWLR 157 …. 23.22 — v — [1982] 2 NSWLR 766 …. 9.2, 9.5, 19.5, 19.6, 19.8, 19.15, 23.22 United States Trust Co of New York v Australia and New Zealand Banking Group Ltd (1995) 37 NSWLR 131 …. 9.28 Upright v Mercury Business Machines 231 NYS 2d 417 (1961) …. 8.38 Uriarau, Marriage of (1986) 11 Fam LR 657 …. 15.73 Usines de Melle’s Patent, Re (1954) 91 CLR 42 …. 20.31

Venter v Ilona MY [2012] NSWSC 1029 …. 4.14, 4.25, 4.30, 17.28 Vervaeke v Smith [1977] Fam 77 …. 13.38 — v — [1983] 1 AC 145 …. 5.37, 14.47, 14.48 Vetreria Etrusca SRL v Kingston Estate Wines Pty Ltd [2008] SASC 75 …. 4.24 Victoria v Hansen [1960] VR 582 …. 2.50, 2.83 Victoria Leasing Aircraft Ltd v United States of America (2005) 218 ALR 640; [2005] VSCA 76 …. 3.18, 3.21 Victorian Philip Stephan Photo Litho Co v Davies (1890) 11 LR (NSW) 257 …. 5.16 Virgtel Ltd v Zabusky [2006] 2 Qd R 81; [2006] QSC 066 …. 23.21 Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277 …. 17.5, 17.7, 17.8, 17.10, 17.13, 17.46 — v — [1939] AC 290 …. 17.11, 17.26 Vizcaya Partners Ltd v Picard [2016] UKPC 5 …. 5.15 Vogel v Kohnstamm Ltd [1973] 1 QB 133 …. 5.15 Von Wyl v Engeler [1998] 3 NZLR 416 …. 5.58 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 …. 1.26, 2.41, 2.75, 4.39, 4.40, 4.41, 4.42, 4.43, 4.45, 4.46, 4.47, 4.49, 4.51, 4.53, 4.54, 4.56, 4.57, 4.71, 4.75, 4.86, 5.41, 16.7, 18.10, 18.12, 23.11, 23.13 VTB Capital plc v Nutritek International Corp [2013] 2 AC 337 …. 4.36, 4.50 Vucicevic v Aleksic [2017] EWHC 2335 …. 22.24

V

V v B (A Minor) (Abduction) [1991] 1 FLR 266 …. 10.63 Vadala v Lawes (1890) 25 QBD 310 …. 5.28 Valkama v Jamieson (1994) 11 SR (WA) 246 …. 4.79, 4.80 Valve Corporation v Australian Competition and Consumer Commission (2017) 351 ALR 584; [2017] FCAFC 224 …. 17.17, 17.50, 17.51, 18.13 Van Rensburg and Paquay, Marriage of (1993) 16 Fam LR 680 …. 15.25, 15.28, 15.61, 15.71 Van Vogt v All Canadian Group Distributors Ltd (1969) 71 WWR 535 …. 4.11 Vanquelin v Bouard (1863) 15 CB (NS) 341; 143 ER 817 …. 14.50 Varley, Estate of [2007] SASC 420 …. 20.7 Vautin v BY Winddown, Inc (No 2) [2016] FCA 1235 …. 4.25 Velasco v Coney [1934] P 143 …. 22.46

W

W v W [2001] 2 WLR 674 …. 13.11 — v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 …. 15.47 Wahbe Tamari & Sons Co v Bernhard Rothfos Beteiligungsgesellschaft mbH [1980] 2 Lloyd’s Rep 553 …. 8.3, 17.25 Wakim, Re; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 …. 2.29, 2.30, 4.60, 12.30, 12.36, 15.2, 15.20, 23.1 Walker v Newmont Australia Ltd [2010] FCA 298 …. 2.16 — v WA Pickles Pty Ltd [1980] 2 NSWLR 281 …. 9.1, 9.2, 9.30 liv



Table of Cases

Wall v Mutuelle de Poitiers Assurances [2014] EWCA Civ 138 …. 7.31 Walpole v Canadian Northern Railways Co [1923] AC 113 …. 7.13 Walsh v R [1894] AC 144 …. 20.14 Walton and Esposito [2006] FamCA 336 …. 14.5 Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society (1934) 50 CLR 581 …. 8.3, 12.11, 12.20, 17.25 Ward Group Pty Ltd v Brodie & Stone plc (2005) 143 FCR 479; [2005] FCA 471 …. 2.75, 17.50, 18.14 Ward’s Case (1625) Latch 4; 82 ER 245 …. 1.20 Warren v Warren [1972] Qd R 386 …. 18.4, 18.37 Warren & Horodecki [2016] FamCA 875 …. 16.4, 16.7 Warrender v Warrender (1835) 2 Cl & Fin 488; 6 ER 1239 …. 10.20, 13.16 Warter v Warter (1890) 15 PD 152 …. 13.40 Waterhouse v Australian Broadcasting Corp (1989) 86 ACTR 1 …. 4.69 Waterhouse & Allen v Australian Broadcasting Corp (1992) 27 NSWLR 1 …. 12.32, 12.34 Watkins v North American Land and Timber Co (Ltd) (1904) 20 TLR 534 …. 2.10 Watson & Godfrey v Cameron (1928) 40 CLR 446 …. 2.19 Wawanesa Mutual Insurance Co v Lindblom (2001) 200 DLR (4th) 123 …. 18.41 Wayland, Estate of [1951] 2 All ER 1041 …. 22.5 WDR Delaware Corp v Hydrox Holdings Pty Ltd [2016] FCA 1164 …. 6.5 Webb (decd), In the Estate of; Webb v Rogers (1992) 57 SASR 193 …. 19.4, 19.28 Weber, Ex parte [1916] 1 AC 421 …. 10.51 Weber v Aidone (1981) 36 ALR 345 …. 2.22, 2.23 Weckstrom v Hyson [1966] VR 277 …. 2.60, 8.3, 17.15 Weinstock v Sarnat [2005] NSWSC 744 …. 22.13 Weiss, Estate of, Re [1962] P 136 …. 22.16

Welex AG v Rosa Maritime Ltd, The Epsilon Rosa [2003] 2 Lloyd’s Rep 509 …. 4.90 Wellington, Duke of, Re [1946] Ch 118 …. 3.10 Wellington, Duke of, Re [1947] Ch 506 …. 8.31, 8.32 West Tankers Inc v Ras Riunione Adriatica Di Sicurta SpA [2005] EWHC 454 …. 18.41 Westacre Investments Inc v The State-Owned Company Yugoimport SDPR [2008] EWHC 801 …. 9.18 — v — [2009] 2 SLR 166 …. 9.18 Western Australia v Vetter Trittler Pty Ltd (in liq) (1991) 30 FCR 102 …. 2.40 WesTrac Pty Ltd v Eastcoast OTR Tyres Pty Ltd (2008) 219 FLR 461; [2008] NSWSC 894 …. 6.6 White v Hardwick (1922) 23 SR (NSW) 6 …. 2.16 — v Tennant 8 SE 596 (1888) …. 10.24 — v Verkouille [1990] 2 Qd R 191 …. 5.24 Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285 …. 23.12 Whitelegg, Goods of [1899] P 267 …. 22.10 Whittman v UCI Holdings Ltd [2016] NZHC 1228 …. 24.14 Whung v Whung (2011) 258 FLR 452; [2011] FamCA 137 …. 19.27 Whyalla Refineries Pty Ltd v Grant Thornton (a firm) (2001) 182 ALR 274; [2001] WASC 49 …. 4.69 Whyte v Rose (1842) 3 QB 493; 114 ER 596 …. 22.13 Wickham Freight Lines Ltd v Ferguson (2013) 83 NSWLR 162 …. 7.40 Wilding v Bean [1891] 1 QB 100 …. 2.39 Wilkinson v Kitzinger [2006] EWHC 2022 (Fam) …. 13.6, 13.31, 13.56 William Hare UAE LLC v Aircraft Support Industries Pty Ltd [2014] NSWSC 1403 …. 6.32, 6.33 Williams, Re [1945] VLR 213 …. 20.29 Williams v The Society of Lloyd’s [1994] 1 VR 274 …. 2.16, 2.75, 2.76 Williams and Glyn’s Bank Plc v Astro Dinamico Cia Naviera SA [1984] 1 All ER 760 …. 2.16 lv





Private International Law in Australia

Williamson v Osenton 232 US 619 (1914) …. 10.7, 10.11 Willoughby, an Infant, Re (1885) 30 Ch D 324 …. 15.18, 15.70 Wilson v Wilson [1903] P 157 …. 9.10 Wilson Electric Transformer Co Pty Ltd v Electricity Commission of New South les [1968] VR 330 …. 18.38 Wilton and Jarvis, Marriage of (1996) 133 FLR 355 …. 7.29 Winans v Attorney-General [1904] AC 287 …. 10.25 Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd [2011] NZLR 754 …. 2.79 Winkworth v Christie, Manson and Woods Ltd [1980] Ch 496 …. 21.11, 21.18 Winter v Winter [1984] 1 Ch 421 …. 2.86 Witten v Lombard Australia Ltd [1970] ALR 77 …. 4.53 Wolfenden v Wolfenden [1946] P 61 …. 13.26 Wolford & Attorney-General’s Department (Cth) [2014] FamCAFC 197 …. 15.44 Wong v Jani-King Franchising Inc [2014] QCA 76 …. 5.17, 5.58 — v Wei (1999) 65 BCLR (3d) 222 …. 7.41 Wood v Astra Resources Ltd [2016] FCA 1192 …. 24.8 Woodhead, In the Marriage of (1997) 23 Fam LR 559 …. 10.60 Woolworths Ltd v DS McMillan (SC(NSW), 29 February 1988, unreported) …. 17.24 Workcover Corp v Pross Chiyoda Pty Ltd [1999] SAWCT 86 …. 4.79 World Firefighters Games Brisbane v World Firefighters Games Western Australia Inc (2001) 161 FLR 355; [2001] QSC 164 …. 4.69, 4.74, 4.75 Worth v Worth [1931] NZLR 1109 …. 14.13 Wu, In the Marriage of (1994) FLC 92-477 …. 10.28 Wynn, Re [1983] 3 All ER 310 …. 22.20

X, Y and Z v The Bank [1983] 2 Lloyd’s Rep 535 …. 17.16 XL Insurance Ltd v Owens Corning [2000] 2 Lloyd’s Rep 500 …. 4.90 XPlore Technologies Corp of America v Tough Corp Pty Ltd [2008] NSWSC 1267 …. 5.22, 5.29

Y

Yarham v Transport Accident Commission [2017] NSWCA 301; (2017) 83 MVR 19 …. 18.46 Yates v Thompson (1835) 3 Cl & Fin 544 …. 22.25, 22.42 Ye v Zeng (No 5) [2016] FCA 850 …. 6.29 Yingling v Gifford [2016] NZHC 1556 …. 5.29 Yoder v Yoder 3330 A 2d 825 (1974) …. 1.34 Yoon v Song (2000) 158 FLR 295; [2000] NSWSC 1147 …. 5.29 Young, Re [1942] VLR 4 …. 20.29 Young JR v Buccaneer Energy Ltd [2014] FCA 711 …. 24.8 Yperion Technology SAS v Luminex Pty Ltd [2012] FCA 554 …. 4.23, 4.25

Z

Z487 Ltd v Skelton [2014] QSC 309 …. 4.8 Zanda & Zanda [2014] FamCAFC 173 …. 15.27 Zao and Gong [2018] FamCA 379 …. 16.4 Zardo v Ivancic (2003) 149 ACTR 1 …. 7.40 Zegna & Zegna [2015] Fam CA 345 …. 15.15 Zeta-PDM Ltd v Petro Technology Australia Pty Ltd [2011] WASC 338 …. 5.57 Zhang v Shanghai Wool and Jute Textile Co Ltd (2006) 201 FLR 178; [2006] VSCA 133 …. 6.14 — v Zemin (2010) 79 NSWLR 513; [2010] NSWCA 255 …. 3.13, 3.15, 3.26 Zivnostenska Banka National Corp v Frankman [1950] AC 57 …. 7.13, 17.4, 17.17, 18.47 ZP v PS (1994) 122 ALR 1 …. 15.26 Zwillinger v Schulof [1963] VR 407 …. 2.16

X

X, In the Marriage of (1983) 65 FLR 132 …. 13.28 X v Attorney-General of New Zealand [2017] 3 NZLR 115 …. 3.17, 3.26 lvi

Table of Statutes References are to paragraphs Australian Citizenship Amendment (Allegiance to Australia) Act 2015 ….  10.46, 10.47 Australian Citizenship Legislation Amendment Act 2002 …. 10.33, 10.45 s 2 …. 10.45 Sch 1 …. 10.45 Australian Consumer Law 2010 …. 2.76, 2.80, 4.20, 4.23, 4.26, 6.7, 17.12, 17.49, 17.50, 18.31 Pt 3-2, Div 1 …. 12.7, 17.12, 17.51 Pt 5-3 …. 17.50 s 18 …. 6.5, 6.6 s 18(1) …. 2.80, 4.18, 17.50, 18.13, 18.31 s 23 …. 4.26 s 60 …. 18.30, 18.45 s 64 …. 4.20, 17.53 s 67 …. 17.51 s 67(a) …. 12.7, 17.12, 17.51 s 67(b) …. 17.12, 17.51 Australian Crime Commission Act 2002 s 29 …. 7.34 Australian Securities and Investments Commission Act 2001 …. 23.4 Bankruptcy Act 1966 …. 22.15 ss 247–252JC …. 22.15 Bills of Exchange Act 1909 …. 7.10 Building and Construction Industry Security of Payment Act 1999 s 34 …. 4.20 Carriage of Goods by Sea Act 1991 …. 17.12, 17.46 s 11(1) …. 12.7 s 11(2) …. 4.6, 6.13 Child Support (Registration and Collection) Act 1988 …. 16.18, 16.20, 16.21, 16.22, 16.23 s 3(1)(c) …. 16.18

COMMONWEALTH

Australian Citizenship Act 1948 …. 10.35, 12.14 s 17 …. 10.43, 10.44, 10.45, 10.53 s 17(2) …. 10.43 s 25(1) …. 10.37 Australian Citizenship Act 2007 …. 10.35, 15.5 s 12 …. 10.37 s 13 …. 10.38 ss 15A–19A …. 10.39 s 16(3) …. 10.39 s 19C(1)–(2) …. 10.38 s 19C(2)(b) …. 10.38 s 19C(3) …. 10.38 s 19C(4) …. 10.38 s 20 …. 10.40 ss 21–28 …. 10.40 s 24(3)–(8) …. 10.40 s 25 …. 10.41 s 27 …. 10.53 s 29(3) …. 10.44 s 29(3)(a)(i) …. 10.45 s 30(4) …. 10.44 s 30(5) …. 10.44 s 30(6) …. 10.44 s 33 …. 10.47 s 33AA …. 10.47 s 33AA(2) …. 10.47 s 33AA(9) …. 10.47 ss 33AA(10)–(23) …. 10.47 s 34(1) …. 10.48 s 34(2) …. 10.48 s 34(3)(b) …. 10.48 s 34A …. 10.48 s 35 …. 10.46 s 35AA …. 10.46 s 36 …. 10.42 Sch 1 …. 10.53 Australian Citizenship Amendment Act 1984 …. 10.35 lvii



Private International Law in Australia

Child Support (Registration and Collection) Act 1988 — cont’d s 18A …. 16.20 s 25(1)–(1A) …. 16.20 s 25A(4) …. 16.20 s 26 …. 16.20 s 30(1) …. 16.20 s 36 …. 16.20 s 38A …. 16.20 s 38C …. 16.20 Child Support (Registration and Collection) Regulations 2018 reg 5 …. 16.20 Sch 1 …. 16.22 Sch 2 …. 16.20 Civil Aviation (Carriers’ Liability) Act 1959 …. 2.79 Commonwealth of Australia Constitution Act (Australian Constitution) …. 1.25, 1.26, 2.18, 2.24, 2.29, 5.21, 11.2, 11.9, 11.12, 11.14, 11.16, 11.17, 11.18, 11.26, 11.27, 13.7, 18.2 s 44(i) …. 10.49, 10.52 s 51(xx) …. 23.1 s 73(ii) …. 4.62 s 75 …. 2.18 s 75(iv) …. 2.18, 2.19, 2.20, 10.58 s 109 …. 11.9 s 117 …. 11.2, 11.18, 11.21, 11.22, 11.23, 11.24, 11.25 s 118 …. 1.25, 5.69, 5.71, 9.29, 11.2, 11.3, 11.4, 11.5, 11.7, 11.8, 11.9, 11.10, 11.11, 11.12, 11.13, 11.14, 11.16, 11.17, 11.18, 11.19, 11.20, 11.23, 11.24, 12.28, 12.29, 17.13, 18.28, 19.11 s 122 …. 17.52, 23.1 Competition and Consumer Act 2010 ….  2.30, 2.79, 17.50 Pt IX …. 17.50 Pt XI …. 17.50 s 5 …. 17.50 s 5(1) …. 2.79, 12.7 Sch 2 …. 2.80, 4.20, 12.7, 17.12, 18.13 Competition and Consumer (Industry Codes — Franchising) Regulation 2014 Sch 1 …. 4.27 Consular Privileges and Immunities Act 1972 …. 3.28

s 9 …. 3.28 s 9(2) …. 3.34 s 12 …. 3.31 Corporations Act 2001 …. 1.8, 2.12, 20.16, 23.1, 23.2, 23.4, 23.5, 23.7, 23.8, 23.9, 23.10, 23.18, 24.29 Ch 5 …. 24.5, 24.11, 24.25 Pt 5.7 …. 24.23, 24.25, 24.26, 24.27 Pt 5.7B, Div 2 …. 24.17 Pt 5B.2 …. 24.27 Pt 5B.2 Div 2 …. 24.23 Pt 9.6A, subdiv C …. 4.59 s 9 …. 23.4, 24.25 s 21 …. 24.25 s 109 …. 2.12 s 109X …. 23.4 s 117(2)(g) …. 23.4 s 119A …. 2.12, 23.4 s 135 …. 20.16 s 232 …. 4.18 ss 232–233 …. 23.10 s 233 …. 4.18 s 237 …. 4.18, 23.10 s 459P(1)(b) …. 24.31 s 580 …. 24.23 s 581 …. 24.4 s 581(2) …. 24.22 s 581(2)(a) …. 24.23 s 581(2)(b) …. 24.23 s 581(3) …. 24.23 s 581(4) …. 24.24 s 582(3) …. 23.18, 24.26 s 583 …. 24.31 s 601CD …. 2.12 ss 601CD–601CF …. 23.4 ss 601CDA–601CF …. 23.5 s 601CL …. 24.5 s 601CL(14)(a) …. 24.27 s 601CL(14)(b) …. 24.27 s 601CL(15)(a) …. 24.27 s 601CL(15)(b) …. 24.27 s 601CL(15)(c) …. 24.27 s 601CL(16) …. 24.27 s 1072F(1) …. 20.16 s 1317H …. 4.18, 23.10 ss 1337B–1337E …. 23.7 s 1337B(3) …. 23.8 s 1337C …. 23.8 s 1337E(2) …. 23.7 lviii



Table of Statutes

s 1337H(1)–(2) …. 23.8 s 1337H(3) …. 23.8 s 1337J(1)–(2) …. 23.8 s 1337J(3) …. 23.8 s 1337K(1)–(3) …. 23.9 s 1337K(4)–(5) …. 23.9 Corporations Regulations 2001 reg 5B.2.05 …. 23.5 reg 5.6.74 …. 24.23 Credit (Commonwealth Powers) Acts 2010 …. 17.52 Cross-border Insolvency Act 2008 …. 24.4 s 6 …. 9.16, 24.1 s 8(b) …. 24.5 s 12(2) …. 24.6, 24.30 s 16(b) …. 24.11 s 17(1)(b) …. 24.17 s 22 …. 24.4 Diplomatic Privileges and Immunities Act 1967 …. 3.28 s 7(2) …. 3.34 s 11(a) …. 3.30 s 11(b) …. 3.30 s 14 …. 3.29 Domicile Act 1982 …. 10.4 s 3 …. 10.5 s 4 …. 10.9 s 5 …. 10.4 s 6 …. 10.21 s 7 …. 10.16, 10.19, 10.31 s 9(1) …. 10.19 s 9(2) …. 10.19 s 10 …. 10.26 s 11 …. 10.9 Domicile (Consequential Amendments) Act 1982 ss 3–4 …. 10.20 Electronic Transactions Act 1999 s 14B(1)(b) …. 2.52 Evidence Act 1995 …. 9.23 s 5 …. 9.30 s 143 …. 9.30 s 174 …. 9.23 s 175 …. 9.24 s 185 …. 5.69, 9.29, 11.3 Evidence (Transitional Provisions and Consequential Amendments) Act 1995 s 3 …. 5.69, 11.3

Family Law Act 1975 …. 10.20, 10.55, 10.63, 10.64, 13.1, 13.43, 14.2, 14.16, 14.29, 14.47, 15.1, 15.13, 15.14, 15.16, 15.29, 15.58, 15.62, 16.5, 16.9, 16.13, 16.16, 16.18, 16.19, 16.22, 16.23 Pt II, Div 4 …. 6.5 Pt VII …. 15.1, 15.2, 15.19, 15.20, 15.33, 15.35, 15.60, 15.61, 15.67, 15.72, 15.73, 15.74, 15.75 Pt VII, Div 13 …. 15.2, 15.67, 15.73 Pt XIIIAA, Div 4, Subdiv C …. 15.13 Pt XIIIAA, Div 4 …. 15.8, 15.13 Div 13 …. 15.73, 15.74, 15.75, 15.78 s 3(2)(a) …. 14.17 s 3(2)(b)–(c) …. 14.16 s 4 …. 10.55, 10.63 s 4(1) …. 10.63, 14.2, 14.17, 15.73 s 4(1)(a) …. 13.4, 14.2 s 4(1)(b) …. 13.4 s 4(3)(b) …. 10.20 s 4AA(1) …. 16.2 s 4AA(5) …. 16.2 s 6 …. 13.20 s 34 …. 16.8 s 39 …. 15.19 s 39(1)(a) …. 14.11, 16.12 s 39(1A) …. 14.11 s 39(1A)–(2) …. 16.12 s 39(3) …. 14.4 s 39(3)(a) …. 14.38 s 39(4) …. 14.5, 14.38, 16.4 s 39(8) …. 14.11, 16.12 s 39B …. 16.13 s 39F …. 16.13 s 41 …. 14.11, 16.12 s 48 …. 14.13, 14.37 s 51 …. 13.39, 13.43, 13.52, 14.14 s 53 …. 14.13 s 60CA …. 15.25 s 61D …. 15.1 s 61D(1) …. 15.68 s 63B …. 15.1 s 64B(1)–(6) …. 15.68 s 64B(2)(b) …. 15.57 s 64B(4) …. 15.57 s 65AA …. 15.25, 15.59 s 65C …. 15.4 s 65D(1) …. 15.68 ss 65DAA–65DAB …. 15.68 lix





Private International Law in Australia

Family Law Act 1975 — cont’d s 67Q …. 15.71 s 67U …. 15.71 s 69E …. 15.1, 15.8, 15.13 s 69E(1) …. 15.4, 15.5, 15.7 s 69E(1)(a) …. 15.7 s 69E(1)(b) …. 15.18 s 69E(1)(b)–(e) …. 15.14 s 69E(1)(e) …. 15.18 s 66F …. 16.5 s 69H …. 15.19 s 69J …. 15.19 s 69K …. 15.7, 15.19 s 69N …. 15.19 ss 69P–69Q …. 10.13 s 69ZE(1) …. 15.2 s 69ZE(2) …. 15.2 s 69ZG …. 15.2 s 69ZH …. 15.2 s 69ZH(2) …. 15.6 s 69ZH(4) …. 15.2, 15.73 s 69ZK …. 15.1 s 70G …. 15.73, 15.74 s 70H …. 15.75 s 70J …. 15.75 s 70J(1) …. 15.75 s 70J(2) …. 15.76 s 70K …. 15.77 s 70L(5) …. 15.77 s 70L(6) …. 15.77 s 70M …. 15.78 s 103 …. 14.16 s 104 …. 14.19 s 104(1) …. 14.27 s 104(2) …. 14.29 s 104(3) …. 14.19, 14.20, 14.21, 14.40, 14.49 s 104(3)(a) …. 14.26 s 104(3)(b) …. 14.27 s 104(3)(c) …. 14.28, 14.40, 14.41 s 104(3)(d) …. 14.30, 14.39 s 104(3)(e)–(f) …. 14.31 s 104(4)(a) …. 14.44 s 104(4)(b) …. 14.47 s 104(5) …. 14.19, 14.22, 14.23, 14.38, 14.44, 14.47 s 104(8) …. 14.40, 14.41 s 104(9) …. 13.46 s 104(10) …. 14.19

s 104A …. 14.19 s 110 …. 16.18, 16.19 s 110A …. 16.18 s 110B …. 16.18 s 111 …. 16.18 s 111AA …. 16.18, 16.22 s 111AA(2) …. 16.9, 16.22 s 111AB …. 16.18 s 111B …. 15.1, 15.29 s 111CA …. 15.14 ss 111CA–111D …. 15.1 s 111CA(1) …. 15.9, 15.14, 15.62 s 111CB …. 15.13 s 111CB(1) …. 15.1 s 111CB(2) …. 15.16 s 111CD …. 15.4, 15.8, 15.14 s 111CD(3) …. 15.15 s 111CD(4) …. 15.16 s 111CE …. 15.16 s 111CF …. 15.17 s 111CG(2) …. 15.24 s 111CH(1) …. 15.23 s 111CH(3) …. 15.23 s 111CH(5) …. 15.23 s 111CR(2) …. 15.66 s 111CR(3) …. 15.66 s 111CS(2) …. 15.63 s 111CS(3) …. 15.63 s 111CS(4) …. 15.63 s 111CS(5)(a) …. 15.63 s 111CS(5)(b) …. 15.63 s 111CS(5)(c) …. 15.63 s 111CS(6) …. 15.65 s 111CS(7) …. 15.64 s 111CS(8) …. 15.64 s 111CT(2)(a) …. 15.72 s 111CT(2)(b) …. 15.72 s 119 …. 18.37 Sch 1 …. 15.14 Family Law Amendment Act 1991 …. 15.2 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 …. 16.2 Family Law (Bilateral ArrangementsIntercountry Adoption) Regulations 1998 …. 10.38 Sch 1 …. 10.38 lx



Table of Statutes

Family Law (Child Abduction Convention) Regulations 1986 …. 9.16, 15.1, 15.29, 15.35, 15.40, 15.73 reg 2(1) …. 15.57 reg 4(2) …. 15.40 reg 4(3) …. 15.40 reg 5 …. 15.34 reg 6 …. 15.35 regs 8–9 …. 15.34 reg 10 …. 15.32 reg 10(b) …. 15.32 reg 11 …. 15.34 reg 12(2)(a) …. 15.72 reg 13 …. 15.34 reg 14 …. 15.7 reg 14(1) …. 15.36 reg 14(2) …. 15.36 reg 15(1) …. 15.44 reg 15(2) …. 15.42 reg 15(4) …. 15.42 reg 16 …. 15.37 reg 16(1) …. 15.41 reg 16(2) …. 15.42 reg 16(2)(c) …. 15.42 reg 16(3) …. 15.45, 15.56 reg 16(3)(a)(i) …. 15.46 reg 16(3)(a)(ii) …. 15.47 reg 16(3)(b) …. 15.48 reg 16(3)(c) …. 15.54 reg 16(3)(c)(ii) …. 15.54 reg 16(3)(d) …. 15.55 reg 16(5) …. 15.56 reg 24 …. 15.58 regs 24–25 …. 15.34 reg 25 …. 15.36, 15.58 reg 29(5) …. 9.14 reg 29(5)(a) …. 15.40 Sch 2 …. 15.32 Family Law (Child Protection Convention) Regulations 2003 …. 15.1, 15.8 reg 2(1) …. 15.19 reg 3(3) …. 15.9 regs 5–9 …. 15.10 reg 6(2) …. 15.35 reg 10 …. 15.72 reg 11 …. 15.72 reg 12 …. 15.72 reg 12(4) …. 15.73 reg 14 …. 15.19

Sch 1 …. 15.9 Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 …. 10.38 Family Law Regulations 1984 …. 16.21, 16.23 reg 4(1) …. 15.73 reg 23 …. 15.74 reg 24 …. 15.78 reg 28B(3) …. 16.19 reg 28C …. 16.23 reg 28D(2) …. 16.23 reg 28D(3) …. 16.23 reg 28D(5) …. 16.23 regs 40–56 …. 16.21 reg 48 …. 16.21 reg 50(1) …. 16.21 reg 50(2) …. 16.21 reg 50A …. 16.21 reg 50A(3) …. 16.21 reg 53 …. 16.21 Sch 1A …. 15.73 Sch 4 …. 16.21 Federal Court of Australia Act 1976 s 54A …. 9.22 Federal Court Rules 2011 …. 2.1, 2.39, 2.79 Div 10.5 …. 2.100 Div 10.6 …. 2.97 r 7.37 …. 2.94 r 10.22 …. 2.14 r 10.24, item 18(b) …. 23.6 r 10.28 …. 2.95 r 10.42, item 1 …. 2.64 r 10.42, item 2 …. 2.56 r 10.42, item 3(a) …. 2.51 r 10.42, item 3(b) …. 2.54 r 10.42, item 3(c) …. 2.60 r 10.42, item 4 …. 2.66 r 10.42, item 5 …. 2.77 r 10.42, item 6 …. 2.84 r 10.42, item 7 …. 2.87 r 10.42, item 8 …. 23.6 r 10.42, item 12 …. 2.79 r 10.42, item 13 …. 2.79 r 10.42, item 14 …. 2.79 r 10.42, item 15 …. 2.79 r 10.42, item 16 …. 2.79 r 10.42, item 18(a) …. 2.48 r 10.42, item 18(b) …. 2.48 r 10.42, item 19 …. 2.49 lxi





Private International Law in Australia

Federal Court Rules 2011 — cont’d r 10.42, item 21 …. 2.81 r 10.42, item 23 …. 2.92 r 10.43(1)(a) …. 2.40 r 10.43(1)(b) …. 2.40 r 10.43(1)(c) …. 2.40 r 10.43(2)–(4) …. 2.100 r 10.43(4)(a) …. 2.40 r 10.43(4)(b) …. 2.40 r 10.43(4)(c) …. 2.40 r 10.43(6) …. 2.40 r 10.43(7) …. 2.40, 2.100 r 10.44 …. 2.93, 5.49 r 10.46 …. 2.101 r 10.65 …. 2.98 r 10.64 …. 2.98 r 10.65 …. 2.98 r 10.66 …. 2.98 rr 10.69–10.72 …. 2.98 rr 10.73–10.74 …. 2.99 r 10.75 …. 2.99 r 41.65 …. 5.49 Foreign Corporations (Application of Laws) Act 1989 …. 19.13, 23.1, 23.14, 23.15, 23.16, 23.17, 23.19, 23.20, 23.21, 23.22 s 3 …. 23.15 s 7 …. 23.15, 23.16 s 7(1) …. 23.15 s 7(2) …. 23.17 s 7(3)(a) …. 23.17, 23.19 s 7(3)(b) …. 23.20 s 7(3)(e) …. 23.20 s 7(3)(g) …. 19.13, 23.22 s 8(1) …. 23.16 Foreign Judgments Act 1991 …. 5.7, 5.8, 5.16, 5.29, 5.43, 5.44, 5.45, 5.46, 5.47, 5.48, 5.49, 5.50, 5.52, 5.53, 5.54, 5.55, 5.56, 5.57, 5.58, 5.60, 5.61, 5.67, 5.68, 5.72, 23.24 s 3(1) …. 5.46, 5.57, 5.67 s 5(1) …. 5.44 s 5(3) …. 5.44 s 5(4) …. 5.46 s 5(5) …. 5.46 s 5(6) …. 5.46 s 5(7) …. 5.46 s 6(1) …. 5.47 s 6(3) …. 5.47 s 6(6) …. 5.47 s 6(7) …. 5.50

s 6(8) …. 5.50 s 6(12) …. 5.47 s 7 …. 5.55, 5.58 s 7(1) …. 5.54 s 7(1)(a)(iv) …. 5.56 s 7(2)(a)(i)–(iii) …. 5.55 s 7(2)(a)(v) …. 5.64 s 7(2)(a)(vi) …. 5.63 s 7(2)(a)(vii) …. 5.55, 5.62 s 7(2)(a)(ix) …. 5.55 s 7(2)(a)(x) …. 5.55 s 7(2)(a)(xi) …. 5.67 s 7(2)(b) …. 5.68 s 7(3)(a)(i) …. 5.57 s 7(3)(a)(ii) …. 5.57 s 7(3)(a)(iii) …. 5.57 s 7(3)(a)(iv) …. 5.57 s 7(3)(a)(v) …. 5.57 s 7(3)(b) …. 5.60 s 7(3)(c) …. 5.61 s 7(4)(a) …. 5.56 s 7(4)(b) …. 5.56 s 7(4)(c) …. 5.56 s 7(5) …. 5.59 s 8 …. 5.54 s 8(1) …. 5.51 s 8(2)–(3) …. 5.51 s 8(4) …. 5.51 s 9 …. 3.22 s 10(1) …. 5.53 s 11 …. 5.16, 5.59 s 18 …. 5.7, 5.43 s 19(b) …. 5.7, 5.43 Foreign Judgments Regulations 1992 …. 5.44, 5.45, 23.24 reg 5 …. 5.45 Sch 1 …. 5.44 Foreign Proceedings (Excess of Jurisdiction) Act 1984 s 9 …. 5.38 Foreign States Immunities Act 1985 …. 3.12–3.27 s 3 …. 3.15 s 3(1) …. 3.16 s 9 …. 3.14, 3.22 s 10(2)–(3) …. 3.17 s 10(6)–(8) …. 3.17 s 10(9)(a) …. 3.17 s 11 …. 3.22 lxii



Table of Statutes

s 11(1) …. 3.18 s 11(2)(b) …. 3.21 s 11(3) …. 3.18, 3.21 s 12(1) …. 3.23 s 12(3) …. 3.23 s 12(5) …. 3.23 s 12(6) …. 3.23 s 13 …. 3.24 s 14(1)–(2) …. 3.25 s 15 …. 3.25 s 22 …. 3.21 s 30 …. 3.27 s 32(3) …. 3.27 s 35 …. 3.27 s 38 …. 3.13 s 40 …. 3.15 High Court Rules 2004 …. 2.1, 2.39, 2.79 r 9.01.1(a) …. 2.14 r 9.07 …. 23.6 r 9.07.1 …. 2.39 r 9.07.3 …. 2.43 r 23.03 …. 2.15 Insurance Contracts Act 1984 …. 4.20, 17.12, 17.48, 17.53 s 8 …. 12.7, 12.8, 17.12 s 8(1) …. 17.47 s 8(2) …. 12.8, 17.47, 17.53 s 43(1) …. 6.13 s 52 …. 17.53 s 52(1) …. 4.20 International Arbitration Act 1974 …. 6.1, 6.2, 6.24, 6.29, 6.36, 6.38, 6.40, 19.12 Pt II …. 6.3 s 3 …. 6.3 s 3(3) …. 6.2, 6.27 s 3(4) …. 6.3 s 3(5) …. 6.3 s 7 …. 6.2, 6.12 s 7(1) …. 6.2 s 7(2) …. 4.9, 6.4, 6.8 s 7(3) …. 6.8 s 7(4) …. 6.9 s 7(5) …. 4.9, 6.13, 6.20 s 8 …. 6.27 s 8(2) …. 6.28 s 8(3) …. 6.28 s 8(3A) …. 6.29 s 8(5) …. 6.28, 6.29, 6.30, 6.37 s 8(6) …. 6.33

s 8(7) …. 6.28, 6.29, 6.38 s 8(7)(a) …. 6.37 s 8(7)(b) …. 6.37 s 8(7A) …. 6.38 s 8(8) …. 6.35, 6.36 s 8(9) …. 6.36 s 8(10) …. 6.36 s 9(1) …. 6.28 s 9(3) …. 6.28 s 16 …. 6.23 s 16(1) …. 6.2 s 20 …. 6.26 s 21 …. 6.24, 6.25, 6.39 s 21(1) …. 6.25 s 21(2) …. 6.25 s 32 …. 6.40 s 35 …. 6.40 Sch 3 …. 6.40 International Arbitration Amendment Act 2010 Sch 1, item 28 …. 6.3 Judiciary Act 1903 s 44 …. 2.22 s 79 …. 2.21 s 80 …. 2.21, 3.6, 18.16 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 2.28, 4.59, 4.62, 4.71, 4.74, 4.75, 4.76, 4.81, 5.5 s 3(2) …. 2.30 s 4 …. 2.28, 2.34, 12.36 s 4(1) …. 2.30 s 4(1)(b) …. 12.36 s 4(2) …. 2.30 s 4(2)(b) …. 12.36 s 5 …. 2.28 4.59, 4.63, 4.64, 4.76 s 5(7) …. 4.61 s 8(1) …. 4.76 s 9(2) …. 2.30 s 11 …. 2.28, 12.30 s 11(1) …. 12.35 s 11(1)(a) …. 12.30 s 11(1)(b) …. 12.30, 12.31, 12.32, 12.33, 12.34, 12.35, 12.36 s 11(1)(c) …. 7.29, 12.35 s 11(3) …. 4.59 s 13(a) …. 4.62 Marine Insurance Act 1909 s 3 …. 20.27 s 9(2)(a) …. 20.27 lxiii





Private International Law in Australia

Marriage Act 1961 …. 1.8, 10.20, 12.1, 13.1, 13.3, 13.5, 13.6, 13.7, 13.8, 13.9, 13.11, 13.13, 13.14, 13.18, 13.21, 13.41, 13.43, 13.44, 13.47, 13.50, 13.53, 13.54, 13.58 Pt III, Div 2 …. 13.48, 13.58 Pt V …. 13.54, 13.57 Pt VA …. 13.21, 13.50, 13.51, 13.52, 13.55, 13.56, 13.57, 13.58, 13.59 s 5 …. 13.5, 13.8 s 5(1) …. 13.6, 13.10, 13.11, 13.14, 13.54 s 5(4)(b) …. 10.20 ss 10–14 …. 13.8 s 10(1)(b) …. 13.42, 13.45 ss 11–21 …. 13.42 s 22 …. 13.3, 13.21 s 23(1)(c) …. 13.44 s 23(1)(d) …. 13.8, 13.42 s 23(2) …. 13.42 s 23(3) …. 13.42 s 23A(1) …. 13.48 s 23A(1)(a) …. 13.48, 13.58 s 23A(1)(b) …. 13.54 s 23B(1) …. 13.48 s 23B(1)(d) …. 13.8, 13.42 s 23B(2) …. 13.42 s 23B(3) …. 13.42 s 48 …. 13.44 s 55 …. 13.47 s 56(1) …. 13.47 s 65 …. 13.54 s 71(1) …. 13.54 s 88 …. 13.54 s 88B(4) …. 13.6, 13.11 s 88C …. 13.21 s 88C(1)(a) …. 13.50, 13.52 s 88C(1)(b) …. 13.53 s 88C(2) …. 12.5 s 88C(2)(a) …. 13.52 s 88C(2)(b) …. 13.53 s 88D …. 13.52 s 88D(1) …. 12.5, 13.50, 13.52, 13.53, 13.55 s 88D(2) …. 12.5, 13.52 s 88D(2)–(3) …. 13.52, 13.53 s 88D(2)(a) …. 13.55 s 88D(2)(d) …. 13.8 s 88D(3) …. 13.52 s 88D(4) …. 13.52, 13.55 s 88D(4)(b) …. 13.53

s 88E(1) …. 13.3, 13.21, 13.50, 13.55 s 88E(2) …. 13.55 s 88E(3) …. 13.57 s 88EA …. 13.51 s 88F …. 13.58 s 91 …. 10.11 s 104(6) …. 13.54 Marriage Amendment Act 1985 …. 22.33 Marriage Amendment Act 2004 …. 13.5 Marriage Amendment (Definition and Religious Freedoms) Act 2017 …. 13.1, 13.3, 13.6, 13.7, 13.10, 13.51 s 3, Sch 1 …. 13.6, 13.10 Matrimonial Causes Act 1959 …. 10.8, 13.1, 14.2, 14.16 National Consumer Credit Protection Act 2009 …. 17.52, 17.53 s 12(2) …. 17.52 s 18(2) …. 17.52 s 21(1)–(3) …. 17.52 s 21(2) …. 17.52 s 21(3)(a) …. 17.52 s 21(4) …. 17.52 s 334(1) …. 17.53 s 334(3) …. 17.53 s 334(4) …. 17.53 Nationality and Citizenship Act 1948 …. 10.35 Papua New Guinea Independence (Australian Citizenship) Regulations reg 4 …. 10.42 Personal Property Securities Act 2009 …. 21.3, 21.15, 21.35 s 235(1) …. 20.26 s 235(2) …. 20.26 ss 238–241 …. 21.19 s 238(1) …. 21.12 s 238(2) …. 21.12 s 238(3) …. 21.12, 21.19 s 239(1) …. 21.35 s 239(2) …. 21.35 s 240(1) …. 21.35 s 240(4) …. 21.35 Service and Execution of Process Act 1901 …. 1.24, 2.24, 2.25, 2.32, 2.39, 2.78 s 4 …. 1.23 s 11 …. 1.23, 2.25 s 21 …. 1.23 lxiv



Table of Statutes

Service and Execution of Process Act 1992 …. 1.23, 2.12, 2.24, 2.25, 2.26, 2.27, 2.33, 2.39, 2.102, 4.48, 4.55, 4.59, 5.5, 5.7, 5.8, 5.21, 5.50, 5.54, 5.69, 5.75, 11.6 Pt 6 …. 5.72 s 3 …. 2.26 s 3(1) …. 5.72 s 8(4) …. 2.33 s 9 …. 2.12, 23.4 s 12 …. 1.23, 2.26 s 14 …. 2.26 s 15 …. 1.23, 2.12, 2.26 s 16 …. 2.26 s 17 …. 2.26 s 20 …. 4.55 s 20(3) …. 4.77, 4.79, 4.80 s 20(4) …. 4.78 s 20(5) …. 4.80 s 21 …. 4.93 s 105 …. 1.23 s 105(1) …. 5.73, 5.74 s 105(2) …. 5.74 s 105(5) …. 5.74 s 105(6) …. 5.73 s 106 …. 5.75 s 109 …. 1.23, 5.75 State and Territorial Laws and Records Recognition Act 1901 s 18 …. 5.69, 5.70, 5.71, 11.3 Trade Marks Act 1995 …. 2.79 Trade Practices Act 1974 …. 6.7, 12.22, 18.30, 18.45 s 52 …. 6.6 s 52(1) …. 2.80, 4.18, 18.13, 18.31 s 67 …. 18.30 s 74(1) …. 12.22, 18.30, 18.45 Trans-Tasman Proceedings Act 2010 …. 1.4, 1.23, 2.37, 2.38, 2.103, 4.7, 4.8, 4.9, 4.26, 4.55, 4.57, 5.6, 5.47, 5.77, 14.18, 14.24, 16.7, 16.10, 16.16, 16.22, 23.5, 23.10, 23.26, 24.7 Pt 7 …. 5.6, 5.43, 5.77 s 4 …. 2.38, 14.18, 16.22 s 9(1) …. 2.38 s 9(2) …. 2.95 ss 17–19 …. 14.9 s 17(1) …. 4.26 s 19 …. 16.10, 23.9 s 19(1) …. 4.56, 14.9 s 19(2) …. 4.56

s 19(2)(d) …. 4.26, 4.56 s 19(2)(f) …. 4.56 s 20 …. 4.57, 4.96 s 20(1)(a) …. 4.9 s 20(1)(b) …. 4.8, 4.9 s 20(2) …. 4.9 s 20(2A) …. 4.8 s 20(3) …. 4.8 s 20(3)(b) …. 4.7, 4.26 s 20(3)(c) …. 4.7, 4.26 s 21(1) …. 4.7, 4.55, 4.57 s 21(2) …. 4.7, 4.55 s 22 …. 16.11 s 22(1) …. 4.95 s 22(2) …. 4.95 s 24 …. 4.56 s 66(1) …. 5.77 s 66(1)(c)–(d) …. 23.26 s 66(2) …. 5.77 s 66(2)(a) …. 14.18, 16.22 ss 67–68 …. 14.18 s 72(1) …. 5.77 s 79(2) …. 5.77 s 79(2)(c) …. 23.26 Trans-Tasman Proceedings Regulation 2012 reg 15(1) …. 23.26 reg 16 …. 24.7 Trusts (Hague Convention) Act 1991 …. 19.18 s 6 …. 19.18 s 7 …. 19.18 s 7(1) …. 19.26

AUSTRALIAN CAPITAL TERRITORY

Administration and Probate Act 1929 s 9(2) …. 2.88, 22.5 s 80 …. 22.11 Birth (Equality of Status) Act 1988 s 5 …. 10.11 Civil Law (Wrongs) Act 2002 …. 3.7, 18.18, 18.26 Pt 9.2 …. 18.18 s 15 …. 18.33 s 24 …. 18.34 s 123(5) …. 18.18 s 220 …. 3.7 s 220(1)–(2) …. 3.7 s 220(2) …. 3.7 s 220(3) …. 3.7 lxv





Private International Law in Australia

Civil Partnerships Act 2008 s 15 …. 13.59 Civil Partnerships Regulation 2010 reg 4 …. 13.59 Civil Unions Act 2008 s 6(1) …. 13.13 s 6(b) …. 13.13 s 7(b) …. 13.13 s 7(d) …. 13.13 s 7(e) …. 13.13 s 9(1) …. 13.13 s 9(2) …. 13.13 s 10 …. 13.13 Civil Unions Act 2012 …. 13.59 ss 11–14 …. 14.3 ss 12–14 …. 14.12 s 21 …. 14.3 s 27 …. 13.59 Court Procedures Rules 2006 …. 2.1 Div 6.8.9 Note 3 …. 2.39 Div 6.8.12 …. 2.97 Subdiv 2.9.4.2 …. 2.94 r 111 …. 2.15 r 1000 …. 2.15 r 1179 …. 9.22 r 3307 …. 2.33 r 3479 …. 5.49 r 6463 …. 2.95 r 6464 …. 2.14 r 6501(1)(g)(ii) …. 2.63 r 6501(1)(s) …. 2.46 r 6502 …. 2.34, 2.39, 2.94 r 6502(a) …. 18.10 r 6502(a)(i) …. 2.67 r 6502(a)(ii) …. 2.67, 2.77 r 6502(b)(i) …. 2.51 r 6502(b)(ii) …. 2.54 r 6502(b)(iii) …. 2.55 r 6502(b)(iv) …. 8.60, 8.62 r 6502(c) …. 2.56 r 6502(d)(i) …. 2.92 r 6502(d)(ii) …. 2.92 r 6502(d)(iii) …. 2.93 r 6502(e) …. 2.81, 2.84 r 6502(f) …. 2.86 r 6502(g) …. 2.48 r 6502(i) …. 2.89 r 6502(j) …. 2.79 r 6502(k) …. 2.49 r 6502(l) …. 2.50, 2.87

r 6502(m) …. 2.50, 2.90 r 6502(n) …. 2.64 r 6502(o) …. 23.6 r 6502(p) …. 2.79 r 6502(q)(ii)–(iii) …. 2.91 r 6503 …. 2.42, 2.45 r 6503(5) …. 2.42 r 6504(2) …. 2.45 r 6504(2)(b) …. 4.51 r 6508 …. 5.49 r 6507 …. 2.43 r 6509 …. 2.101 r 6509(1) …. 2.101 r 6510 …. 2.100 r 6551 …. 2.98 r 6553 …. 2.98 r 6554 …. 2.98 r 6555 …. 2.98 rr 6558–6561 …. 2.98 rr 6562–6563 …. 2.99 r 6564 …. 2.99 Evidence Act 2011 s 143 …. 9.30 s 174 …. 9.23, 9.24 s 176 …. 9.27 Foreign Judgments Act 1954 …. 5.43 Jurisdiction of Courts (Cross-vesting) Act 1993 …. 2.28, 4.59, 4.62, 4.71, 4.74, 4.75, 4.76, 4.81 s 4 …. 2.34, 12.36 s 5 …. 4.59, 4.63, 4.64, 4.76 s 8(1) …. 4.76 s 11 …. 12.30 s 11(1) …. 12.35 s 11(1)(a) …. 12.30 s 11(1)(b) …. 12.30, 12.31, 12.32, 12.33, 12.34, 12.35, 12.36 s 11(1)(c) …. 7.29, 12.35 Legislation Act 2001 s 169(1) …. 10.14 Limitation Act 1985 ss 55–57 …. 7.48 Parentage Act 2004 s 11(4) …. 10.13 s 11(5) …. 10.14 s 38 …. 10.11 s 38(2) …. 10.11 Road Transport (Third-Party Insurance) Act 2008 Pt 2.7 …. 18.35 lxvi



Table of Statutes

Sale of Goods (Vienna Convention) Act 1987 …. 2.52, 2.53, 17.47 Wills Act 1968 …. 22.1 Pt 3B …. 22.22 s 15A …. 22.37 ss 15A–15H …. 22.19 s 15D(1)(c) …. 22.31 s 15D(2) …. 22.50 s 20 …. 22.33 s 20A …. 22.33

NEW SOUTH WALES

Administration and Probate Act 1969 s 14(2) …. 2.88 Building and Construction Industry Security of Payments Act 1999 s 34 …. 17.53 Children (Equality of Status) Act 1976 …. 10.11 Choice of Law (Limitation Periods) Act 1993 …. 7.48 Civil Liability Act 2002 …. 12.22, 18.26, 18.30 Pt 4 …. 7.37 s 5N …. 18.30 s 5N(1) …. 12.22 Civil Procedure Act 2005 s 64(3) …. 7.29 Commonwealth Powers (Family Law– Children) Act 1986 …. 15.2 Commonwealth Powers (De Facto Relationships) Act 2003 …. 2.30, 16.2 Compensation to Relatives Act 1897 s 3 …. 18.34 Contracts Review Act 1980 …. 2.36 s 11(1)(b) …. 2.36 Corporations (Commonwealth Powers) Act 2001 s 4 …. 23.1 ss 5–6 …. 23.1 Conveyancing Act 1919 …. 12.27 Credit (Commonwealth Powers) Acts 2010…. 17.52 Defamation Act 2005 …. 18.18, 18.21 s 11(1) …. 18.19 s 11(2) …. 18.20 s 11(3) …. 18.20 s 11(4) …. 18.21 s 11(5) …. 18.18 Domicile Act 1979 …. 10.4 s 3 …. 10.9

s 4 …. 10.4 s 5 …. 10.21 s 6 …. 10.16, 10.19, 10.31 s 8(1) …. 10.19 s 8(2) …. 10.19 s 9 …. 10.26 s 10 …. 10.9 Dust Diseases Tribunal Act 1989 …. 4.70 s 11A …. 7.42 s 32 …. 7.52 Electronic Transactions Act 2000 s 13B(1)(b) …. 2.52 Evidence Act 1995 …. 9.23 s 143 …. 9.30 s 174 …. 9.23 s 175 …. 9.24 Foreign Judgments Act 1973 …. 5.43 Further Remedies to Creditors Act 1855 …. 1.23 Industrial Relations Act 1996 s 106(1) …. 12.21 Insurance Act 1902 s 19 …. 6.13 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 2.28, 4.59, 4.62, 4.71, 4.74, 4.75, 4.76, 4.81, 5.71 s 4 …. 2.28, 2.34, 2.35, 12.36 s 4(3) …. 2.30 s 4(4) …. 2.30 s 5 …. 2.28, 4.59, 4.63, 4.64, 4.76 s 5(7) …. 4.61 s 8(1) …. 4.76 s 9 …. 2.30 s 11 …. 2.28, 12.30 s 11(1) …. 12.35 s 11(1)(a) …. 12.30 s 11(1)(b) …. 12.30, 12.31, 12.32, 12.33, 12.34, 12.35 s 11(1)(c) …. 7.29, 12.35 s 11(3) …. 4.59 s 13(a) …. 4.62 Jurisdiction of Courts (Foreign Land) Act 1989 …. 2.35 s 3 …. 3.8 s 4 …. 3.8 Law Reform (Miscellaneous Provisions) Act 1944 s 2 …. 18.33 Legal Profession Act 2004 s 143 …. 23.22

lxvii





Private International Law in Australia

Moratorium Act 1930 …. 11.4 Motor Accidents Compensation Act 1999 …. 7.41 Pt 2.4 …. 18.35 NSW Trustee and Guardian Act 2009 …. 2.35 Probate and Administration Act 1898 s 107 …. 22.11 Protected Estates Act 1983 …. 5.71 s 13 …. 2.35 Relationships Register Act 2010 ss 4–5 …. 13.13 s 4(1) …. 13.13 s 5 …. 13.13 s 5(1) …. 13.13 s 5(2) …. 13.13 s 5(3) …. 13.13 s 5(3)(c) …. 13.13 s 9 …. 13.13 ss 10–15 …. 14.3 ss 11–13 …. 14.12 s 14 …. 14.12 s 14(1)(b)–(c) …. 13.13 s 16 …. 13.59 Relationships Register Regulation 2010 reg 4 …. 13.59 Sale of Goods (Vienna Convention) Act 1986 …. 2.52, 2.53, 17.2, 17.47 Sch 1, Art 18(2) …. 2.52 Status of Children Act 1996 s 5 …. 10.11 s 6 …. 10.11 s 14(1)(a) …. 10.13 s 14(1A) …. 10.14 s 14(2) …. 10.14 Succession Act 2006 …. 22.1 Pt 2.4A …. 22.22 s 12 …. 22.33 s 13 …. 22.33 s 47 …. 22.37 ss 47–50 …. 22.19 s 48(1) …. 22.37 s 48(2)(c) …. 22.31 s 48(3) …. 22.50 s 64 …. 22.34, 22.48 Transport Accidents Compensation Act 1987 …. 11.23 Trustee and Guardian Act 2009 s 41 …. 2.35 Uniform Civil Procedure Rules 2005 …. 2.1 lxviii

Pt 11A …. 2.97 r 6.9 …. 2.15 r 6.44(1) …. 9.18 r 6.44(2) …. 9.19, 9.21 r 6.45 …. 9.20 r 10.3(3) …. 2.39 r 10.6 …. 2.95 r 10.13 …. 2.14 r 11.3 …. 2.39 r 11.4 …. 2.15 r 11.4(1) …. 2.39 r 11.5 …. 2.42 r 11.5(5) …. 2.42 r 11.6 …. 2.101 r 11.6(2) …. 2.45 r 11.6(2)(b) …. 4.51 r 11.7 …. 2.45 r 11.8AA …. 2.43 r 11.8AB …. 5.49 rr 11.9–11.11 …. 2.100, 2.101 r 11A.2 …. 2.98 r 11A.4 …. 2.98 r 11A.5 …. 2.98 r 11A.6 …. 2.98 rr 11A.9–11A.12 …. 2.98 rr 11A.13–11A.14 …. 2.99 r 11A.15 …. 2.99 r 12.11 …. 2.15 r 20.14 …. 9.19, 9.22 r 25 …. 5.24 r 25.16 …. 2.94 r 53.6 …. 5.49 Sch 6 …. 2.34 Sch 6(a) …. 18.10 Sch 6(a)(i) …. 2.67 Sch 6(a)(ii) …. 2.67, 2.77 Sch 6(b)(i) …. 2.51 Sch 6(b)(ii) …. 2.54 Sch 6(b)(iii) …. 2.55 Sch 6(b)(iv) …. 2.60, 2.62 Sch 6(c) …. 2.56 Sch 6(d)(i) …. 2.92 Sch 6(d)(ii) …. 2.92 Sch 6(d)(iii) …. 2.93 Sch 6(e) …. 2.81, 2.84 Sch 6(f) …. 2.86 Sch 6(g) …. 2.48 Sch 6(i) …. 2.89 Sch 6(j) …. 2.79

Table of Statutes

Sch 6(k) …. 2.49 Sch 6(l) …. 2.50, 2.87 Sch 6(m) …. 2.50, 2.90 Sch 6(n) …. 2.64 Sch 6(p) …. 2.79 Sch 6(q)(ii)–(iii) …. 2.91 Sch 6(s) …. 2.46

s 4 …. 10.11 s 5D(1) …. 10.13 s 5D(1)(b) …. 10.14 s 5DA(1) …. 10.14 Supreme Court Act s 26 …. 9.22 Supreme Court Rules 1987 …. 2.1 O 7A …. 2.97 r 6.08 …. 2.14 r 6.13 …. 2.95 r 7.01 …. 2.39 r 7.01(1)(a) …. 2.82 r 7.01(1)(b) …. 2.84 r 7.01(1)(d) …. 2.89 r 7.01(1)(e) …. 2.86 r 7.01(1)(f)(i) …. 2.51 r 7.01(1)(f)(ii) …. 2.54 r 7.01(1)(f)(iii) …. 2.60 r 7.01(1)(g) …. 2.56 r 7.01(1)(h) …. 2.49 r 7.01(1)(j) …. 2.66 r 7.01(1)(k) …. 2.77, 2.92 r 7.01(1)(o) …. 2.79 r 7.01(1)(p) …. 2.85 r 7.02(1)(a) …. 2.40 r 7.02(1)(b) …. 2.40 r 7.02(1)(c) …. 2.40, 2.48 r 7.02(2)(a) …. 2.40 r 7.02(2)(b) …. 2.40 r 7.02(2)(c) …. 2.40 r 7.02(5)(c) …. 2.40 r 7.03 …. 2.93, 2.101 r 7.05 …. 2.45 rr 7.08–7.09 …. 2.101 rr 7.09–7.14 …. 2.100 r 7A.02 …. 2.98 r 7A.04 …. 2.98 r 7A.05 …. 2.98 r 7A.06 …. 2.9 rr 7A.09–7A.12 …. 2.98 rr 7A.13–7A.14 …. 2.99 r 7A.15 …. 2.99 r 8 …. 2.15 r 8.08 …. 2.15 r 37A.07 …. 2.94 r 89.07(1) …. 2.33 Supreme Court Rules 2012 r 7.03 …. 5.49 r 94.07 …. 5.49

NORTHERN TERRITORY

Administration and Probate Act 1969 s 14(2) …. 22.5 s 111 …. 22.11 Choice of Law (Limitation Periods) Act 1994 …. 7.48 Compensation (Fatal Injuries) Act 1974 s 7(1) …. 18.34 Defamation Act 2006 …. 18.21 s 10(5) …. 18.18 Domicile Act …. 10.4 Evidence (National Uniform Legislation) Act …. 9.23 s 143 …. 9.30 s 174 …. 9.23 s 175 …. 9.24 s 176 …. 9.27 Foreign Judgments Act 1955 …. 5.43 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 2.28, 4.59, 4.62, 4.71, 4.74, 4.75, 4.76, 4.81 s 4 …. 2.34, 12.36 s 5 …. 4.59, 4.63, 4.64, 4.76 s 8(1) …. 4.76 s 11 …. 12.30 s 11(1) …. 12.35 s 11(1)(a) …. 12.30 s 11(1)(b) …. 12.30, 12.31, 12.32, 12.33, 12.34, 12.35, 12.36 s 11(1)(c) …. 7.29, 12.35 Law Reform (Miscellaneous Provisions) Act 1956 Pt II …. 18.33 Motor Accidents (Compensation) Act 1979 …. 11.8, 18.35 Personal Injuries (Civil Claims) Act 2007 …. 18.26 Personal Injuries (Liabilities and Damages) Act 2002 …. 18.26 Sale of Goods (Vienna Convention) Act 1987 …. 2.52, 2.53, 17.47 Status of Children Act lxix





Private International Law in Australia

Wills Act 2000 …. 22.1 Pt 5A …. 22.22 s 14 …. 22.33 s 15 …. 22.33 s 45 …. 22.37 ss 45–48 …. 22.19 s 46(4) …. 22.31 s 46(5) …. 22.50 s 47 …. 22.37

Domicile Act 1981 …. 10.4 Evidence Act 1977 …. 9.23 s 68 …. 9.23 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 2.28, 4.59, 4.62, 4.71, 4.74, 4.75, 4.76, 4.81 s 3 …. 2.35 s 4 …. 2.34, 12.36 s 5 …. 4.59, 4.63, 4.64, 4.76 s 8(1) …. 4.76 s 11 …. 12.30 s 11(1) …. 12.35 s 11(1)(a) …. 12.30 s 11(1)(b) …. 12.30, 12.31, 12.32, 12.33, 12.34, 12.35, 12.36 s 11(1)(c) …. 7.29, 12.35 Motor Accident Insurance Act 1994 s 33 …. 18.35 Motor Vehicle Insurance Act 1936 …. 7.19 s 20 …. 11.23, 11.24 Personal Injuries Proceedings Act 2002 …. 18.26 s 7(1) …. 18.27 Reciprocal Enforcement of Judgments Act 1959 …. 5.43, 5.48, 5.65 Sale of Goods (Vienna Convention) Act 1986 …. 2.52, 2.53, 17.47 Status of Children Act 1978 s 3 …. 10.11 s 17(2)(b) …. 10.14 s 18(2)(b) …. 10.14 s 19(2) …. 10.13 ss 19A–19G …. 10.14 s 19C(2) …. 10.14 s 19E(4) …. 10.14 s 21(1) …. 10.14 s 22(2) …. 10.14 s 23(4) …. 10.14 Succession Act 1981 …. 22.1 Div 6A …. 22.22 s 5 …. 22.37 s 6(2) …. 2.88, 22.5 s 14 …. 22.33 s 15 …. 22.33 ss 33T–33Y …. 22.19 s 33T(2)(c) …. 22.50 s 33T(2)(d) …. 22.31 s 66 …. 18.33 Uniform Civil Procedure Rules 1999 …. 2.1

QUEENSLAND

Auctioneers and Agents Act 1922 …. 12.17, 17.10, 17.12 s 11 …. 17.12 British Probates Act 1898 s 4 …. 22.11 Choice of Law (Limitation Periods) Act 1996 …. 7.48 Civil Liability Act 2003 …. 18.26 Civil Partnerships Act 2011 s 4(1) …. 13.13 s 5(a) …. 13.13 s 5(b) …. 13.13 s 5(c) …. 13.13 s 7 …. 13.13 s 9(1)(a) …. 13.13 ss 14–19 …. 14.3 s 15 …. 14.12 s 30 …. 14.3 s 33(2) …. 13.59 s 44 …. 14.3 Civil Partnerships Regulation 2012 reg 4 …. 13.59 Civil Proceedings Act 2011 s 64 …. 18.34 Common Law Practice Act 1867 …. 1.23 Commonwealth Powers (De Facto Relationships) Act 2003 …. 2.30 Commonwealth Powers (Family Law– Children) Act 1990 …. 15.2 Corporations (Commonwealth Powers) Act 2001 s 4 …. 23.1 ss 5–6 …. 23.1 Credit (Commonwealth Powers) Acts 2010 …. 17.52 Defamation Act 2005 …. 18.21 s 11(5) …. 18.18 lxx



Table of Statutes

Pt 7, Div 1 …. 2.39 Pt 7, Div 3 …. 2.97 r 55 …. 2.33 r 115 …. 2.14 r 119 …. 2.95 r 124(1) …. 2.39 r 124(1)(a) …. 2.64 r 124(1)(b)(i) …. 2.81 r 124(1)(c) …. 2.84 r 124(1)(d) …. 2.48 r 124(1)(e)(i) …. 2.89 r 124(1)(f) …. 2.86 r 124(1)(g)(i) …. 2.51 r 124(1)(g)(ii) …. 2.63 r 124(1)(g)(iii) …. 2.54 r 124(1)(g)(iv) …. 2.60 r 124(1)(h) …. 2.56 r 124(1)(i) …. 2.49 r 124(1)(k) …. 2.66 r 124(1)(l) …. 2.77 r 124(1)(m) …. 23.6 r 124(1)(o) …. 2.92 r 124(1)(q) …. 2.79 r 124(1)(r) …. 2.49 r 124(1)(t) …. 2.79 r 124(1)(t)(ii) …. 2.79 r 124(1)(u) …. 2.79 r 124(1)(x) …. 2.46 r 126 …. 2.45 r 127(b) …. 2.93, 5.49 r 129(1) …. 2.101 r 129(2) …. 2.101 r 130 …. 2.100 r 130B …. 2.98 r 130D …. 2.98 r 130E …. 2.98 r 130F …. 2.98 rr 130I–130L …. 2.98 rr 130M–130N …. 2.99 r 130O …. 2.99 rr 135–137 …. 2.15 r 144 …. 2.15 r 144(4) …. 2.15 r 260F …. 2.94 r 501 …. 9.22 r 947J …. 5.49 Workers’ Compensation and Rehabilitation Act 2003 s 324(1) …. 18.8

SOUTH AUSTRALIA

Administration and Probate Act 1919 ss 17–19 …. 22.11 Commonwealth Powers (De Facto Relationships) Act 2009 …. 2.30, 16.2 s 4(1)(b) …. 16.2 Commonwealth Powers (Family Law) Act 1986 …. 15.2 Corporations (Commonwealth Powers) Act 2001 s 4 …. 23.1 ss 5–6 …. 23.1 Civil Liability Act 1936 …. 18.26 s 23 …. 18.34 Credit (Commonwealth Powers) Acts 2010 …. 17.52 Defamation Act 2005 …. 18.21 s 11(5) …. 18.18 Domicile Act 1980 …. 10.4 Evidence Act 1929 …. 9.23 s 63 …. 9.23, 9.24 s 63A …. 9.27 Family Relationships Act 1975 s 6 …. 10.11 s 10C(3) …. 10.13 s 10C(3)(a) …. 10.14 s 10C(4) …. 10.14 Foreign Judgments Act 1971 …. 5.43 Further Remedies to Creditors Act 1856 …. 1.23 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 2.28, 4.59, 4.62, 4.71, 4.74, 4.75, 4.76, 4.81 s 4 …. 2.34, 12.36 s 5 …. 4.59, 4.63, 4.64, 4.76 s 8(1) …. 4.76 s 11 …. 12.30 s 11(1) …. 12.35 s 11(1)(a) …. 12.30 s 11(1)(b) …. 12.30, 12.31, 12.32, 12.33, 12.34, 12.35, 12.36 s 11(1)(c) …. 7.29, 12.35 Limitation of Actions Act 1936 ss 38–38A …. 7.48 Motor Vehicles Act 1959 ss 115–116 …. 18.35 Relationships Register Act 2016 s 4 …. 13.13 ss 4–5 …. 13.13 s 5(2) …. 13.13 lxxi





Private International Law in Australia

Relationships Register Act 2016 — cont’d s 5(3)(d) …. 13.13 s 5(4) …. 13.13 s 8 …. 13.13 s 9 …. 13.13 ss 10–14 …. 14.3 s 14(1)(b)–(c) …. 13.13 s 14(3) …. 14.12 s 26(1) …. 13.59 s 65A …. 13.59 Relationships Regulations 2016 reg 7 …. 13.59 Sale of Goods (Vienna Convention) Act 1986 …. 2.52, 2.53, 17.47 Supreme Court Act 1935 s 67 …. 9.22 Supreme Court Civil Rules 2006 …. 2.1 Ch 3, Pt 4, Div 4 …. 2.97 r 40 …. 2.39 r 40(1) …. 2.39 r 40A …. 2.34 r 40A(a)(i) …. 2.67, 18.10 r 40A(a)(ii) …. 2.67, 2.77 r 40A(b)(i) …. 2.51 r 40A(b)(ii) …. 2.54 r 40A(b)(iii) …. 2.55 r 40A(b)(iv) …. 2.60, 2.62 r 40A(c) …. 2.56 r 40A(d)(i) …. 2.92 r 40A(d)(ii) …. 2.92 r 40A(d)(iii) …. 2.93 r 40A(e) …. 2.81, 2.84 r 40A(f) …. 2.86 r 40A(g) …. 2.48 r 40A(i) …. 2.89 r 40A(j) …. 2.79 r 40A(k) …. 2.49 r 40A(l) …. 2.50, 2.87 r 40A(m) …. 2.50, 2.90 r 40A(n) …. 2.64 r 40A(o) …. 23.6 r 40A(p) …. 2.79 r 40A(q)(ii)-(iii) …. 2.91 r 40A(s) …. 2.46 r 40B …. 2.42 r 40B(5) …. 2.42 r 40C(2) …. 2.45 r 40C(2)(b) …. 4.51 r 40F …. 2.43

r 40G …. 5.49 r 40H …. 2.101 r 41(2) …. 2.101 r 41B …. 2.98 r 41D …. 2.98 r 41E …. 2.98 r 41F …. 2.98 rr 41I–41L …. 2.98 rr 41M–41N …. 2.99 r 41O …. 2.99 r 67(1)(c) …. 2.14 r 67(1)(d) …. 2.95 r 92 …. 2.15 r 92(3)(a) …. 2.15 r 247(7) …. 2.94 r 346(7) …. 5.49 Survival of Causes of Action Act 1940 s 2 …. 18.33 Wills Act 1936 …. 22.1 Pt 3A …. 22.22 s 20 …. 22.33 s 20A …. 22.33 s 25A …. 22.37 ss 25A–25D …. 22.19 s 25C(c) …. 22.31 s 25C(d) …. 22.50

TASMANIA

Administration and Probate Act 1935 s 48 …. 22.11 Administration and Probate Act 1958 s 27 …. 18.33 Alternative Dispute Resolution Act 2001 s 3 …. 9.22 s 5 …. 9.22 Civil Liability Act 2002 …. 18.26 Commonwealth Powers (De Facto Relationships) Act 2006 …. 16.2 Commonwealth Powers (Family Law) Act 1987 …. 15.2 Corporations (Commonwealth Powers) Act 2001 s 4 …. 23.1 ss 5–6 …. 23.1 Credit (Commonwealth Powers) Acts 2009 …. 17.52 Defamation Act 2005 …. 18.21 s 11(5) …. 18.18 Domicile Act 1980 …. 10.4 lxxii



Table of Statutes

Evidence Act 2001 …. 9.23 s 143 …. 9.30 s 174 …. 9.23 s 175 …. 9.24 s 176 …. 9.27 Fatal Accidents Act 1934 s 4 …. 18.34 Foreign Judgments Act 1963 …. 5.43 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 2.28, 3.6, 4.59, 4.62, 4.71, 4.74, 4.75, 4.76, 4.81 s 4 …. 2.34, 12.36 s 4(3) …. 3.6 s 5 …. 4.59, 4.63, 4.64, 4.76 s 8(1) …. 4.76 s 11 …. 12.30 s 11(1) …. 12.35 s 11(1)(a) …. 12.30 s 11(1)(b) …. 12.30, 12.31, 12.32, 12.33, 12.34, 12.35, 12.36 s 11(1)(c) …. 7.29, 12.35 Limitation Act 1974 ss 32A–32D …. 7.48 Motor Accidents (Liabilities and Compensation) Act 1973 s 16 …. 18.35 Relationships Act 2003 s 4 …. 13.13 s 4(1)(a) …. 13.13 s 4(1)(b) …. 13.13 s 7 …. 13.13 ss 10–12 …. 14.12 s 11 …. 13.13 s 11(1)(b) …. 13.13 s 13(3)(a) …. 13.13 ss 15–17 …. 14.3 ss 15–18 …. 14.12 s 65A …. 13.59 Relationships Regulations 2013 reg 8 …. 13.59 Remedies to Creditors Act 1857 …. 1.23 Sale of Goods (Vienna Convention) Act 1987 …. 2.52, 2.53, 17.47 Status of Children Act 1974 s 3 …. 10.11 s 10C(1) …. 10.13 s 10C(1A) …. 10.14 s 10C(2) …. 10.14 s 10C(3)–(5) …. 10.14

Supreme Court Rules 2000 …. 2.1 Pt 38A …. 2.97 r 134 …. 2.14 r 147 …. 2.100, 2.101 r 147(3) …. 2.39 r 147A …. 2.34, 2.39 r 147A(a)(i) …. 2.67, 18.10 r 147A(a)(ii) …. 2.67, 2.77 r 147A(b)(i) …. 2.51 r 147A(b)(ii) …. 2.54 r 147A(b)(iii) …. 2.55 r 147A(b)(iv) …. 2.60, 2.62 r 147A(c) …. 2.56 r 147A(d)(i) …. 2.92 r 147A(d)(ii) …. 2.92 r 147A(d)(iii) …. 2.93 r 147A(e) …. 2.81, 2.84 r 147A(f) …. 2.86 r 147A(g) …. 2.48 r 147A(i) …. 2.89 r 147A(j) …. 2.79 r 147A(k) …. 2.49 r 147A(l) …. 2.50, 2.87 r 147A(m) …. 2.50, 2.90 r 147A(n) …. 2.64 r 147A(o) …. 23.6 r 147A(p) …. 2.79 r 147A(q)(i)-(ii) …. 2.91 r 147A(s) …. 2.46 r 147B …. 2.42, 2.45 r 147B(5) …. 2.42 r 147C(2) …. 2.45 r 147C(2)(b) …. 4.51 r 147F …. 2.43 r 147G …. 5.49 r 147H …. 2.101 rr 148–153 …. 2.100, 2.101 r 154 …. 2.15 r 168 …. 2.15 r 721 …. 5.49 r 781(6) …. 2.33 r 937G …. 2.94 r 970B …. 2.98 r 970D …. 2.98 r 970E …. 2.98 r 970F …. 2.98 rr 970I–970L …. 2.98 rr 970M–970N …. 2.99 r 970O …. 2.99 lxxiii





Private International Law in Australia

Wills Act 2008 …. 22.1 Pt 5A …. 22.22 s 16 …. 22.33 s 17 …. 22.33 ss 60–62 …. 22.19 s 60(2)(c) …. 22.31 s 60(2)(d) …. 22.50 s 61 …. 22.37

VICTORIA

Administration and Probate Act 1958 …. 18.33 s 29 …. 18.33 s 88(4) …. 22.11 Choice of Law (Limitation Periods) Act 1993 …. 7.48 Commercial Arbitration Act 1984 …. 6.1 Commercial Arbitration Act 2011 …. 6.1 Commonwealth Powers (De Facto Relationships) Act 2004 …. 16.2 Commonwealth Powers (Family Law– Children) Act 1986 …. 15.2 Corporations (Commonwealth Powers) Act 2001 s 4 …. 23.1 ss 5–6 …. 23.1 Credit (Commonwealth Powers) Acts 2010 …. 17.52 Defamation Act 2005 …. 18.21 s 11(5) …. 18.18 Domicile Act 1978 …. 10.4 Evidence Act 2008 …. 9.23 s 143 …. 9.30 s 174 …. 9.23 s 175 …. 9.24 s 176 …. 9.27 Financial Emergency Act 1931 …. 12.12, 12.24, 17.34 Foreign Judgments Act 1962 …. 5.43 Further Remedies to Creditors Act 1858 …. 1.23 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 2.28, 4.59, 4.62, 4.71, 4.74, 4.75, 4.76, 4.81 s 4 …. 2.34, 12.36 s 5 …. 4.59, 4.63, 4.64, 4.76 s 8(1) …. 4.76 s 11 …. 12.30 s 11(1) …. 12.35

s 11(1)(a) …. 12.30 s 11(1)(b) …. 12.30, 12.31, 12.32, 12.33, 12.34, 12.35, 12.36 s 11(1)(c) …. 7.29, 12.35 Relationships Act 2008 s 3 …. 13.13 s 5 …. 13.13 s 6 …. 13.13 s 10 …. 13.13 s 10(3)(a) …. 13.13 ss 11–16 …. 14.3, 14.15 Sale of Goods (Vienna Convention) Act 1987 …. 2.52, 2.53, 17.47 Status of Children Act 1974 s 3 …. 10.11 s 10C(2)(b) …. 10.14 s 10D(2)(a) …. 10.13 s 10D(2)(b) …. 10.14 s 10D(2)(d) …. 10.14 s 10E(2)(c)(d)(i) …. 10.13 s 10E(2)(d) …. 10.14 s 10E(2)(f) …. 10.14 ss 11–16 …. 10.14 s 13(1)(c) …. 10.14 s 14(1)(c) …. 10.14 s 15(1)(b) …. 10.14 s 16(1)(b) …. 10.14 Supreme Court (General Civil Procedure) Rules 2005 r 7.08 …. 5.49 Supreme Court (General Civil Procedure) Rules 2015 …. 2.1 O 80 …. 2.97 r 6.09 …. 2.14 r 6.14 …. 2.95 r 7.01 …. 2.39 r 7.02 …. 2.34, 2.39, 2.94 r 7.02(a)(i) …. 2.67, 18.10 r 7.02(a)(ii) …. 2.67, 2.77 r 7.02(b)(i) …. 2.51 r 7.02(b)(ii) …. 2.54 r 7.02(b)(iii) …. 2.55 r 7.02(b)(iv) …. 2.60, 2.62 r 7.02(c) …. 2.56 r 7.02(d)(i) …. 2.92 r 7.02(d)(ii) …. 2.92 r 7.02(d)(iii) …. 2.93 r 7.02(e) …. 2.84 r 7.02(f) …. 2.86 lxxiv



Table of Statutes

r 7.02(g) …. 2.48 r 7.02(j) …. 2.79 r 7.02(k) …. 2.49 r 7.02(l) …. 2.50, 2.87 r 7.02(m) …. 2.50, 2.90 r 7.02(n) …. 2.64 r 7.02(o) …. 23.6 r 7.02(s) …. 2.46 r 7.02(p) …. 2.79 r 7.03 …. 2.42, 2.101 r 7.03(5) …. 2.42 r 7.04 …. 2.45 r 7.04(2) …. 2.45 r 7.04(2)(b) …. 4.51 r 7.07 …. 2.43 rr 7.09–7.14 …. 2.100, 2.101 r 8.03 …. 2.15 r 8.08 …. 2.15 r 37A.07 …. 2.94 r 50.01 …. 9.22 r 80.02 …. 2.98 r 80.04 …. 2.98 r 80.05 …. 2.98 r 80.06 …. 2.98 rr 80.09–80.12 …. 2.98 rr 80.13–80.14 …. 2.99 r 80.15 …. 2.99 Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 r 11.07 …. 5.49 Transport Accidents Act 1986 …. 11.17, 11.25, 12.14, 18.38, 18.39 s 96 …. 18.35 Wills Act 1997 …. 22.1 Pt 2, Div 7 …. 22.22 s 13 …. 22.33 s 14 …. 22.33 ss 17–19 …. 22.19 s 17(2)(c) …. 22.31 s 17(2)(d) …. 22.50 s 17(3) …. 22.50 s 18 …. 22.37 Workers’ Compensation Act 1928 …. 12.19 Wrongs Act 1958 …. 18.26, 18.34 s 16 …. 18.34

WESTERN AUSTRALIA

Administration Act 1903 s 6 …. 22.11

Artificial Conception Act 1985 s 6 …. 10.13 s 6A …. 10.14 s 7(2) …. 10.14 Choice of Law (Limitation Periods) Act 1994 …. 7.48 Civil Liability Act 2002 …. 18.26 Corporations (Commonwealth Powers) Act 2001 s 4 …. 23.1 ss 5–6 …. 23.1 Credit (Commonwealth Powers) Acts 2010 …. 17.52 Defamation Act 2005 …. 18.21 s 11(5) …. 18.18 Domicile Act 1981 …. 10.4 Evidence Act 1906 …. 9.23 s 53 …. 9.23, 9.30 s 70 …. 9.23 s 71 …. 9.23, 9.24 Family Court Act 1997 …. 15.2, 15.60, 16.5 Pt 5 …. 15.61, 15.67 s 35 …. 16.4 s 36 …. 15.19 s 43 …. 15.19 s 70(1) …. 15.68 s 84 …. 15.68 s 88 …. 15.6 s 89(1) …. 15.68 ss 89AA–89AB …. 15.68 s 118 …. 16.5 s 149 …. 15.71 s 153 …. 15.71 Fatal Accidents Act 1959 s 4 …. 18.34 Foreign Judgments Act 1963 …. 5.43 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 2.28, 4.59, 4.62, 4.71, 4.74, 4.75, 4.76, 4.81 s 4 …. 2.34, 12.36 s 4(1)–(3) …. 2.30 s 5 …. 4.59, 4.63, 4.64, 4.76 s 11 …. 12.30 s 11(1) …. 12.35 s 11(1)(a) …. 12.30 s 11(1)(b) …. 12.30, 12.31, 12.32, 12.33, 12.34, 12.35, 12.36 s 11(1)(c) …. 7.29, 12.35 lxxv





Private International Law in Australia

Law Reform (Miscellaneous Provisions) Act 1941 s 4 …. 18.33 Motor Vehicle (Third Party Insurance) Act 1943 s 7(3) …. 18.35 s 8(1) …. 18.35 Relief of Creditors Ordinance 1856 …. 1.23 Rules of the Supreme Court 1971 …. 2.1 O 9, r 1(2) …. 2.14 O 9, r 3 …. 2.95 O 10, r 1(1) …. 2.39, 2.40 O 10, r 1(1)(a)(i) …. 2.82 O 10, r 1(1)(a)(ii) …. 2.82 O 10, r 1(1)(b) …. 2.84 O 10, r 1(1)(c) …. 2.48 O 10, r 1(1)(d) …. 2.86, 2.89 O 10, r 1(1)(e)(i) …. 2.51 O 10, r 1(1)(e)(ii) …. 2.54 O 10, r 1(1)(e)(iii) …. 2.60 O 10, r 1(1)(f) …. 2.56 O 10, r 1(1)(g) …. 2.92 O 10, r 1(1)(j) …. 2.85 O 10, r 1(1)(k) …. 2.66 O 10, r 1(1)(l) …. 2.79 O 10, r 1A(3A) …. 2.39 O 10, r 2 …. 2.49 O 10, r 4(1) …. 2.40 O 10, r 7 …. 2.93, 2.94 , 5.49 O 10, rr 9–10 …. 2.101 O 10, r 9(2)–(5) …. 2.100 O 10, r 10(3)(a) …. 2.101 O 11, r 4 …. 2.40 O 11A …. 2.97 O 11A, r 2 …. 2.98 O 11A, r 4 …. 2.98 O 11A, r 5 …. 2.98 O 11A, r 6 …. 2.98 O 11A, rr 9–12 …. 2.98 O 11A, rr 13–14 …. 2.99 O 11A, r 15 …. 2.99 O 12 …. 2.15 O 12, r 6 …. 2.15 O 44, r 8(1) …. 5.49 O 44A r 8(1) …. 5.49 O 52A(7) …. 2.94 Sale of Goods (Vienna Convention) Act 1986 …. 2.52, 2.53, 17.47 Supreme Court Act 1935

s 50 …. 9.22 Wills Act 1970 …. 22.1 Pt XA …. 22.22 s 4 …. 22.37 s 14 …. 22.33 s 14A …. 22.33 ss 20–21 …. 22.19 s 20(2)(c) …. 22.31 s 20(2)(d) …. 22.50 s 21 …. 22.37

FEDERAL COUNCIL OF AUSTRALASIA

Australasian Civil Process Act 1886 …. 1.23, 2.24 Australasian Judgments Act 1886 …. 1.23

CANADA

Canadian Water Carriage of Goods Act 1910 …. 17.7 Court Jurisdiction and Proceedings Transfer Act …. 5.21

CUBA

Law 860 …. 8.50

EUROPE

European Convention on Human Rights …. 13.12 European Economic Area’s Lugano Convention …. 5.4, 21.28 European Union Convention on the Law Applicable to Contractual Obligations 1980 (Rome Convention) …. 17.3, 17.54, 17.55, 21.21 Art 1 …. 17.1 Art 3 …. 17.54 Art 4(1) …. 17.54 Art 4(2) …. 17.54 Art 4(3) …. 17.54 Art 4(4) …. 17.54 Art 5 …. 17.54 Art 6 …. 17.54 Art 20 …. 17.54 Regulation (EC) 864/2007 of the European Parliament and Council on the Law Applicable to Non-Contractual Obligations (Rome II Regulation) …. 7.41, 7.42, 18.3, 18.7 Art 4(1) …. 18.3 lxxvi



Table of Statutes

Art 4(2) …. 18.3 Art 4(3) …. 18.3 Art 15(c) …. 7.41 Art 24 …. 18.7 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2009 on the law applicable to contractual obligations (Rome I Regulation) …. 17.54 Art 3 …. 17.54 Art 4(1) …. 17.54 Art 4(1)(a) …. 17.54 Art 4(2) …. 17.54 Art 4(4) …. 17.54 Art 6 …. 17.54 Art 7 …. 17.54 Art 8 …. 17.54 Art 15 …. 17.54 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation recast) …. 5.4

INDIA

Special Marriages Act 1954 …. 13.50, 13.57

INTERNATIONAL

Agreement between the Government of Australia and the Government of New Zealand on Child and Spousal Maintenance 2000 …. 16.9, 16.18, 16.22 Art 7 …. 16.22 Agreement between the Government of Australia and the Government of the United States of America for the Enforcement of Maintenance (Support) Obligations 2002 …. 16.18, 16.23 Australia and New Zealand Closer Economic Relations Trade Agreement 1983 …. 5.43 Convention on the Settlement of Investment Disputes (ICSID Convention) …. 6.40 Art 52(1) …. 6.40 Convention Providing a Uniform Law on the Form of an International Will 1973 …. 22.22, 22.37

Art 1(2) …. 22.22 Art 3(1) …. 22.22 Art 4(1) …. 22.22 Art 5(1) …. 22.22 Art 9 …. 22.22 Art 12 …. 22.22 Annex Art 1(1) …. 22.22 Hague Child Abduction Convention 1980 …. 10.2, 10.62, 10.63, 10.64, 10.65, 10.66, 10.67, 10.68, 10.69, 15.1, 15.3, 15.7, 15.8, 15.10, 15.12, 15.16, 15.19, 15.21, 15.25. 15.27, 15.29, 15.33, 15.34, 15.37, 15.40, 15.47, 15.51, 15.52, 15.54, 15.57, 15.59, 15.60, 15.71 Art 1 …. 15.33 Art 3 …. 15.38, 15.39, 15.40 Art 5(a) …. 15.40 Art 5(b) …. 15.57 Art 4 …. 15.1, 15.30 Art 7 …. 15.34 Art 7(e) …. 15.40 Art 11 …. 15.42 Art 12 …. 15.37, 15.41, 15.42 Art 13 …. 15.41, 15.45, 15.54 Art 13(a) …. 15.46, 15.47 Art 13(b) …. 15.48 Art 18 …. 15.35 Art 20 …. 15.55 Art 21 …. 15.58 Hague Convention on Celebration and Recognition of the Validity of Marriages 1978 …. 13.2, 13.3, 13.21, 13.41, 13.48 Art 9 …. 13.2 Hague Convention on Choice of Court Agreements 2005 …. 2.103, 4.7, 4.96, 4.97, 17.57 Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption …. 10.38 Hague Convention on Recognition of Divorces and Legal Separations 1970 …. 14.19 Hague Convention on the Law Applicable to Maintenance Obligations 1973 …. 16.15 Art 4 …. 16.15 Hague Convention on the Law Applicable to Succession 1988 …. 22.56

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Hague Convention on the Law Applicable to Trusts and on their Recognition 1985 …. 19.18, 19.19, 19.20, 19.21, 19.22, 19.24, 19.25, 19.26, 19.28 Art 2 …. 19.19 Art 3 …. 19.18 Art 5 …. 19.21 Art 6 …. 19.20 Art 7 …. 19.21, 19.28 Art 8 …. 19.23 Art 9 …. 19.22 Art 10 …. 19.23 Art 15 …. 19.20, 19.24 Art 16 …. 19.20, 19.24 Art 17 …. 19.22 Art 18 …. 19.20, 19.24 Art 20 …. 19.19 Art 21 …. 19.19 Hague Convention on the Protection of Children 1996 (Child Protection Convention) …. 10.2, 10.54, 10.62, 10.63, 10.64, 10.65, 15.1, 15.2, 15.8, 15.9, 15.11, 15.12, 15.13, 15.14, 15.16, 15.17, 15.19, 15.20, 15.21, 15.22, 15.23, 15.24, 15.25, 15.37, 15.61, 15.62, 15.64, 15.65, 15.66, 15.72 Art 1(2) …. 15.62 Art 2 …. 15.11 Art 3 …. 15.14, 15.62 Art 4 …. 15.14, 15.62 Art 6 …. 15.13 Art 7 …. 15.14, 15.16, 15.17 Art 8 …. 15.24 Arts 8–9 …. 15.10 Art 8(2) …. 23 Art 20 …. 15.65 Arts 29–39 …. 15.10 Arts 30–31 …. 15.10 Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations 1973 …. 16.18 Hague Convention on the Recovery Abroad of Maintenance 1956 …. 16.18, 16.21 Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters 1965 (the Hauge Service Convention) …. 2.96, 2.97, 2.98, 2.99 Art 2 …. 2.97

Hague Principles on Choice of Law in International Commercial Contracts 2015 …. 17.1, 17.3, 17.57 Art 1(1) …. 17.57 Art 2(1) …. 17.57 Art 3 …. 17.1, 17.57 Art 4 …. 17.57 Art 8 …. 17.57 Hague-Visby Rules 1968 …. 17.46 Hague-Visby Rules 1979 …. 17.46 Hamburg Rules 1978 …. 17.46 International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, and Protocol of Signature …. 17.8 Treaty on Judicial Assistance in Civil and Commercial Matters between Australia and the Republic of Korea …. 9.17 art 27(1) …. 9.17 UNCITRAL Model Law on Cross-border Insolvency 1997 Art 2 …. 24.7 Art 2(3) …. 24.7 Art 2(j) …. 24.5 Art 6 …. 24.12 Art 9 …. 24.5 Art 11 …. 24.5 Art 12 …. 24.5 Art 13(1) …. 24.6 Art 13(2) …. 24.6, 24.30 Art 14 …. 24.5, 24.6 Art 15(1) …. 24.7 Art 16(3) …. 24.8 Art 17(2) …. 24.8 Art 19 …. 24.14, 24.15 Art 20 …. 24.11, 24.19 Art 21 …. 24.11, 24.13, 24.15 Art 21(2) …. 24.11 Art 22(1) …. 24.15 Art 22(3) …. 24.15 Art 23 …. 24.17 Art 25 …. 24.20, 24.21 Arts 25–27 …. 24.20 Art 26 …. 24.20, 24.21 Art 27 …. 24.21 Art 28 …. 24.18 Art 29 …. 24.19, 24.20 Art 29(a)(i) …. 24.19 Art 29(b)(i) …. 24.19 lxxviii



Table of Statutes

Art 29(a)(ii) …. 24.19 Art 29(b)(ii) …. 24.19 Art 32 …. 24.6 UNCITRAL Model Law on International Commercial Arbitration 1985 …. 6.16, 6.18, 6.19, 6.23, 6.24, 6.25, 6.26, 6.35, 6.39, 9.16 Art 1 …. 6.23, 6.39 Art 1(1) …. 6.23 Art 8 …. 6.2 Art 12 …. 6.23 Art 14 …. 6.23 Art 17H …. 6.35 Art 19 …. 6.25 Art 20(2) …. 6.21 Art 25(1) …. 9.16 Art 25(2) …. 9.16 Art 28(1) …. 6.16, 6.17 Art 28(2) …. 6.19 Art 28(3) …. 6.18 Art 34 …. 6.23 Art 35 …. 6.26, 6.39 Art 36 …. 6.26, 6.39 United Nations Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment Art 14(1) …. 3.26 United Nations Convention on Contracts for the International Sale of Goods 1980 …. 17.2, 17.47 Art 1(1) …. 17.2, 17.47 Art 6 …. 17.2, 17.47 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) …. 2.103, 4.12, 4.97, 6.2, 6.26, 6.27, 6.29 Art II(2) …. 6.3 Art III …. 6.27 Art V …. 6.27, 6.28 Art VI …. 6.27 Vienna Convention on Consular Relations 1963 …. 3.28 Art 1(d) …. 3.23 Art 1(e) …. 3.23 Art 1(f) …. 3.23 Art 43 …. 3.31, 3.32 Art 44 …. 3.32 Art 45(1)–(2) …. 3.34

Art 45(3) …. 3.34 Art 45(4) …. 3.34 Art 53(4) …. 3.33 Art 55(3) …. 3.33 Vienna Convention on Diplomatic Relations 1961 …. 3.28 Art 1(d) …. 3.23 Art 31(1) …. 3.30 Art 32(1)–(2) …. 3.34 Art 32(3) …. 3.34 Art 32(4) …. 3.34 Art 37(1) …. 3.29 Art 37(2) …. 3.29, 3.30 Art 37(3) …. 3.29, 3.30 Art 38(1) …. 3.30 Art 39(2) …. 3.33

IRAQ

Resolution 55 …. 8.67 Resolution 369 …. 8.60, 8.67, 8.68

NAURU

Nauruan Phosphate Royalties Trust Act s 32A …. 3.19

NEW ZEALAND

Accident Compensation Act 2001 …. 4.57 s 317 …. 4.57 s 319 …. 4.57 Australasian Creditors Act 1858 …. 1.23 Companies Act 1993 …. 23.26 Evidence Act 1908 …. 9.11 High Court Rules 2016 …. 2.47, 2.62 Historic Articles Act 1962 …. 8.52 Insolvency (Cross-border) Act 2006 …. 24.7 Limitation Act 2010 s 55 …. 7.48 Marriage Act 1955 …. 13.50, 13.56, 13.57 s 3(1) …. 13.56 Marriage (Definition of Marriage) Act 2013 s 5 …. 13.56 Matrimonial Causes (War Marriages) Act 1947 …. 14.17 Private International Law (Choice of Law in Tort) Act 2017 s 7(3) …. 18.7 Reciprocal Enforcement of Judgments Act 1934 …. 5.77 Securities Act 1978 …. 23.26

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Securities Markets Act 1988 …. 23.26 Takeovers Act 1993 …. 23.26 Trans-Tasman Proceedings Act 2010 …. 1.23, 2.95, 9.25 s 97(1) …. 9.25 s 97(2) …. 9.25 s 98 …. 9.25 s 99 …. 9.25 ss 100–102 …. 9.25

PEOPLE’S REPUBLIC OF CHINA

General Principles of Civil Law …. 9.6

SPAIN

Spanish Civil Code …. 7.23

UNITED KINGDOM

British Nationality Act 1981 …. 10.35 s 37 …. 10.35 Civil Jurisdiction and Judgments Act 1982 s 30(1) …. 3.7 Civil Partnership Act 2004 …. 13.59 s 214 …. 13.59 s 216 …. 13.59 Sch 20 …. 13.59 Common Law Procedure Act 1852 …. 2.24, 2.39 Contracts (Applicable Law) Act 1990 …. 17.54 Colonial Probates Act 1892 …. 22.11 Education Act 1962 …. 10.59 Employment Rights Act 1996 s 94(1) …. 12.15

Fatal Accidents Act 1976 …. 18.34 Foreign Judgments (Reciprocal Enforcement) Act 1933 …. 5.43, 5.44 Foreign Corporations Act 1991 …. 23.16 Foreign Marriages Act 1892 …. 13.50, 13.54, 13.57 Marriage Act 1753 (Lord Hardwicke’s Act) …. 13.26, 13.28 Matrimonial Causes (War Marriages) Act 1944 …. 14.17 Private International Law (Miscellaneous Provisions) Act 1995 Pt III …. 18.3 ss 5–7 …. 13.20 s 9(5) …. 18.7 s 11 …. 18.3 s 12 …. 18.3 s 13 …. 18.3 s 14(3)(b) …. 7.41 Official Secrets Act 1911 …. 8.53 Wills Act 1861 (Lord Kingdown’s Act) …. 22.36, 22.37 Wills Act 1963 …. 22.19, 22.36, 22.37

UNITED STATES OF AMERICA

Harter Act 1893 …. 17.7 Judiciary Act 1789 …. 2.18 Sherman Act …. 4.82, 4.83, 4.87 United States Code s 1738 title 28 …. 11.3 United States Constitution …. 5.21, 11.21 Art IV, s 1 …. 11.3 Art IV, s 2 …. 11.21

lxxx

PART 1 Introduction to Private International Law

Chapter 1 Scope, Development and Purpose Themes of private international law 1.1  Private international law is the body of principles, rules and, at times, policies and approaches that indicate how a foreign element in a legal problem or dispute should be dealt with. In most cases, legal questions are local, only involving people and circumstances within the one state or country. However, through migration, trade and communications, legal relationships increasingly cross state and national borders, giving rise to cross-border — or ‘multi-state’ — cases when a dispute occurs. Thus, a case before a court in New South Wales might involve a person who lives in Victoria, or it might relate to an event that occurred in Singapore. The action in New South Wales might be paralleled by an action in Singapore, or even be pre-empted by a judgment made there. In addressing multi-state cases like these, the law in common law and civil law countries has traditionally classified them as giving rise to one or more of three different issues: • jurisdiction: whether the local court — or ‘forum’ — has the power to hear and determine the case, or whether the contacts the case has with another state or country limit or otherwise restrain the forum court’s power or willingness to decide the case; • recognition and enforcement of foreign judgments: where the case has proceeded to judgment in the other state or country, whether that judgment can be recognised or enforced in the forum; and • choice of law: even if the forum court has — and will — exercise the jurisdiction to decide the case, whether it will decide the case in accordance with the law of the forum (lex fori), or in accordance with the law of the other state or country. Is the forum or foreign law to be ‘the law of the cause’ (lex causae) or ‘applicable law’ that disposes of the case, and how does the forum court choose one or the other? This question is, naturally, only important if application of the forum’s law is likely to give a different result to the application of the foreign law: that is, where there is ‘a conflict of laws’. 1.2  In Australia, other common law countries and civil law countries, private international law is concerned with these three issues: jurisdiction, the recognition and enforcement of foreign judgments, and choice of law. While, in the course of a cross-border dispute, the chronological sequence of these issues is likely to mean that the question of jurisdiction is dealt with first, and the enforcement of a foreign judgment last, these issues will be dealt 3

1.2

Private International Law in Australia

with together in Part 2 of this book. In the past, these issues were treated as the ‘bookends’ of private international law, but it is now appreciated that questions of jurisdiction and judgments are closely related, in that the forum’s recognition or enforcement of a foreign judgment depends significantly on the jurisdiction of the foreign court that rendered it. In this respect, the rules of jurisdiction are also largely mirrored in the rules for recognising foreign judgments. Further, at a deeper policy level, schemes that make generous provision for the recognition — or ‘circulation’ — of foreign judgments often do so because the forum and foreign country have agreed to proportionate rules of jurisdiction that give the forum’s law-makers confidence that the foreign judgment emerged from a credible judicial process. In Australia, this has certainly been the case for the recognition and enforcement of interstate judgments and those made by New Zealand courts. As a result, these questions will be considered together. Parts 3–7 largely deal with choice of law; however, the principles relating to jurisdiction and judgments in family law (Part 4) and, to a small extent, company law (Part 7) are based on concepts that differ from those dealt with in Part 2. This is typical of private international law. For example, the concepts of choice of contract law have greater coherence with the general principles of contract law than they do with, for example, the concepts of choice of tort law. In this respect, the private international law is a hotchpotch and cannot be neatly explained by principles and rules that are standardised through the private international law. It also means that, in this text, questions of jurisdiction and judgments in family law will be separately addressed in Part 4. To the extent that there might also be unique principles relating to jurisdiction and judgments for company law and insolvency, these are dealt with in Part 7. 1.3  The subject of private international law is also referred to as ‘conflict of laws’, a term especially in common use in the United States. However, the term ‘conflict of laws’ does not describe the subject comprehensively, as it only suggests the choice of law issue. A ‘conflict’ is not essential where the issue between parties is one of jurisdiction or the enforcement of a foreign judgment. Still, the term ‘private international law’ is also misleading, because this body of law becomes applicable when either an international or an interstate element arises in a case. This is despite the fact that the great American jurist Joseph Story invented the term ‘private international law’ when outlining principles applicable to both international and interstate cases. It is certainly a shortcoming when, as Story recognised, in a federation like Australia or the United States, this body of law is more commonly used in interstate than in international cases. There is little prospect, however, that the term ‘private international law’ will be displaced by more accurate, but clumsier, badges like ‘private international and interstate law’. Nevertheless, the term ‘cross -border law’ is in increasing use. 1.4  Another objection to the term ‘private international law’ is its possible confusion with ‘public international law’. The two subjects are not unrelated.1 Historically, both public and private international law developed through the scholarship of continental European jurists. The outcome of cases involving private international law questions can still turn on public international law concepts like international personality,2 obligations not to discriminate 1. 2.

A Mills, The Confluence of Public and Private International Law: Justice, Pluralism and Subsidiarity in the International Constitutional Ordering of Private Law, Cambridge University Press, Cambridge, 2010. Adams v Adams [1971] P 188.

4

Scope, Development and Purpose



1.5

against foreign nationals, basic human rights, and the compliance of the law of the cause with Security Council Resolutions.5 Treaties and conventions which create international legal obligations between countries have led more recently to some important reshaping of rules of private international law. In this respect the work of the Hague Conference on Private International Law has been of immense significance, and many multilateral conventions concluded through the conference have been implemented in Australian law. Australia has also entered into a number of bilateral treaties with various countries which regulate aspects of private international law, the most important of which is the treaty with New Zealand on court proceedings and regulatory enforcement.6 3

4

1.5  There are, nevertheless, important differences between public and private international law. Public international law comprises customary international law, treaties, conventions, and legislation passed by international agencies such as the United Nations. Its effectiveness lies only in countries voluntarily complying with its rules and, at least in a ‘dualist’ legal system like Australia’s, it cannot be enforced directly unless implemented through legislation passed by a competent parliament.7 Public international law aims to regulate relations between nation states that have international personality or, through international human rights instruments, relations between the national governments of countries and their citizens. It is therefore universal, in the sense that the rules of public international law are the same regardless of where in the world they are considered. In contrast, private international or conflicts law has, since the late 19th century, been recognised as an aspect of municipal law.8 Even though the field largely originated in the work of legal scholars, its legal sources are now constitutions, statutes and, in common law countries, judicial decisions. The ordinary courts can therefore enforce it. The traditional disregard for academic opinion in the common law, however, cannot be rigidly maintained in private international law, where there is a lingering view that academic opinion might have more weight in the field than it does in other areas of the common law.9 Further, as the name suggests, private international law regulates legal relations between private persons and corporations. It therefore deals with problems encompassed by the different departments of the private law, such as family law, contract, tort, property and corporations, but again only to the extent that these problems also involve a foreign element. And, it is only ‘international law’ in the sense that it addresses an international (or interstate) element in a legal problem. It is not universal because, as municipal law, conflicts law frequently differs from country to country and even from state to state. This means that, on occasion,

3. 4. 5. 6.

7. 8. 9.

Anglo-Iranian Oil Co Ltd v Jaffrate (The Rose Mary) [1953] 1 WLR 246; Re Helbert Wagg & Co Ltd [1956] Ch 323 at 346. Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249 at 278. Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883. Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement [2013] ATS 32, given effect in the Trans-Tasman Proceedings Act 2010 (Cth). Bradley v Commonwealth (1973) 128 CLR 557. However, see Lord Hope of Craighead’s comments on the need to use the ‘universal’ principles of domicile in Mark v Mark [2005] 3 All ER 912 at 917. See 1.18.

5

1.5

Private International Law in Australia

a multi-state case might not only reveal a conflict of laws, it might also be complicated by a conflict of conflicts laws themselves.10 1.6  Since this subject deals exclusively with the private law, its concept of a ‘foreign country’ or a ‘foreign law’ also differs from that of public international law. In private international law, the important political unit is the private law area — which, in this text, is generally referred to as a ‘place’. Thus, different places are treated as foreign to each other, even if they are not so for public international law purposes. In private international law, but not the conventions of international relations, member countries of the Commonwealth are treated as foreign to each other.11 In cases which do not involve federal or national law, member states, territories, provinces or countries of a federal or composite nation are, in a sense, foreign to each other. The older Australian cases certainly adopted this classification. In Chaff and Hay Acquisition Committee v JA Hemphill and Sons Pty Ltd, Williams J observed that ‘[f]or the purposes of private international law, South Australia is a foreign country in the courts of New South Wales’.12 This anomalous description has been the subject of serious revision since the 1980s and, in choice of law cases especially, the High Court of Australia has tried to align the status of interstate relations in conflicts law more closely to the political and economic reality of Australia as ‘one country and one nation’.13 1.7  By contrast, other federal or composite nations have tended to preserve the unified approach to international and intranational matters. The United Kingdom comprises three distinct private law areas in England and Wales, Scotland and Northern Ireland, and for conflicts law purposes these regard each other as different countries. In the United States, each state and territory of the Union is a separate law area. Even during the Cold War an American judge could declare that ‘Michigan’s sovereignty is as foreign to Delaware as Russia’s’.14 Canadian provinces and territories are also separate places for private international law purposes. Indeed, given the prevalence of federal or composite nations in the English-speaking world, within the common law tradition private international law has, in general, developed in response to legal problems of an intra-national character. 1.8  Even though in English-speaking countries the relevant private law area is usually the state, territory or province, there are some private law matters in which the subject matter of the problem is one of federal or national concern. In Australia, legislative power has been invested in and exercised by the Commonwealth Parliament in matters of insurance, negotiable instruments, insolvency, intellectual property, marriage and matrimonial causes. In addition, the interests of securing national uniformity in areas which have traditionally been within the legislative competence of the state parliaments have sometimes led the 10. 11.

12. 13. 14.

The problem of renvoi: see 8.13–8.35. Attorney-General of New Zealand v Ortiz [1982] QB 349 at 581; Attorney-General for the United Kingdom v  Heinemann Publishers Australia Pty Ltd and Wright (1987) 10 NSWLR 86 at 137. The convention is, though, falling into disuse, and for many purposes Australian law now treats Commonwealth countries as ‘foreign’: Nolan v Minister for Immigration & Ethnic Affairs (1988) 165 CLR 178 at 184–5; Sue v Hill (1999) 199 CLR 462 at 503; Singh v Commonwealth (2004) 222 CLR 322 at 350–1, 372–3. (1947) 74 CLR 375 at 396; see also Laurie v Carroll (1958) 98 CLR 310 at 331; Pedersen v Young (1964) 110 CLR 162 at 170. Breavington v Godleman (1988) 169 CLR 41 at 78, 134–5, 160; see further at 1.24. City of Detroit v Proctor 61 A 2d 412 at 416 (1948).

6

Scope, Development and Purpose



1.9

states to refer law-making power in the area to the Commonwealth Parliament. The most important of these powers is arguably a comprehensive power to regulate the incorporation, conduct and liquidation of companies, which the Commonwealth exercises under the Corporations Act 2001. The relevant private law area in these cases is Australia as a whole, and conflicts law will in general (though not always) be inapplicable to cases with interstate elements only.15 Here, private international law usually only applies to international cases. Because in federal nations the power to legislate in different areas of the private law is often distributed between the central and regional governments, some knowledge of the internal distribution of powers peculiar to each federation is required before the relevant private law area can be identified. Thus, in Australia, marriage is a subject regulated by federal legislation — the Marriage Act 1961 (Cth). In Canada and the United States, it is regulated instead by provincial and state laws. There cannot therefore be a conflict of marriage laws within Australia, although they do occur within Canada and the United States. Further, in deciding whether there is a conflict between the marriage laws of Australia and one of these other countries, the comparison to be made is between, on the one hand, Australian federal law and, on the other, for example, Ontario or California law.

Historical development Ancient approaches 1.9  Not until the 12th century did there emerge anything like a private international law and, in particular, the modern choice of law method. The ancient approach to multi-state cases was a ‘substantive law approach’. Here, special courts decided multi-state cases in accordance with a separate body of laws. In a large measure this was because, even in Greece and Rome where refined systems of private law were developed, a fundamental premise of ancient legal systems was the idea of a personal law. The law by which a person lived depended on his citizenship, and not on where the person lived or conducted business. Thus, the ius civile or civil law of Rome was only available to Roman citizens, and only applied in disputes between citizens by a magistrate called the ‘urban praetor’. In 242 BC, a special office of peregrine praetor was created to deal with any dispute in Rome involving a foreigner, even where the other party was a citizen. Through the centuries, the peregrine praetors developed a distinct body of law called the ius gentium or the law of nations, based on an amalgam of Roman and foreign — particularly Greek — legal institutions. It nevertheless proved to be more adaptable than the civil law, and better suited to the exigencies of trade and commerce in the Mediterranean basin. However, to the Roman, the ius gentium was a personal law applicable to non-Romans and dealings with them. The distinction between the civil law and the ius gentium eventually collapsed by the gradual reception of the ius gentium into the urban praetor’s jurisdiction, and the result was some harmonisation of the laws applied in local disputes and in those involving a foreigner. In any case, the Edict of Caracalla in 212 AD extended Roman citizenship to all inhabitants of the Empire, and so universalised the application of the civil law within the Empire’s limits. Under the later Roman law, there was therefore no pressing need for any body of law specifically addressing multi-state cases. 15.

See further 23.1 and 23.22.

7

1.10

Private International Law in Australia

Scholarly development 1.10  The revival of the teaching and study of Roman law in the Italian universities in the 12th century and, under the influence of feudalism, the decline of the idea of a personal law, helped the emergence of private international law. Technically, the Corpus Iuris Civilis compiled under Justinian in the 6th century was still regarded as the common law of the Holy Roman Empire. But the Italian city-states had also developed ‘statuta’ or municipal laws to regulate local activity. Statuta frequently differed from the Imperial common law, and differed between cities. The scholars who explained how to deal with conflicts of statuta in cases between residents of different cities became known as ‘statutists’, and conceived the modern approaches to choice of law. So, the probable founder of conflicts law — Aldricus  — suggested that a judge dealing with conflicting statuta should apply the better and more useful law. This is a ‘multilateral approach’. It involves the evaluation of relevant but competing laws or legal systems, and the selection of one or the other. The statutists more commonly took a ‘unilateral approach’, in which the court determined the proper territorial operation of the statutum and gave it effect. Here, they generally classified rules as either ‘real’ or ‘personal’, although to these the French scholar Bertrand d’Argentré (1519–90) added a third ‘mixed’ category. The relevant classification indicated the geographical operation of the law. Bartolus of Sassoferrato (1314–57) illustrated the method in the famous ‘English Question’, where he posited whether the English rule of primogeniture (by which the eldest son inherited all of his father’s property) could apply to property in Italy. The solution was a matter of construction of the relevant English statutum. If the rule were expressed as ‘[t]he possessions of deceased persons shall pass to the firstborn’, the subject of the law was property. It would therefore be classified as real, and would not apply to property outside England. In contrast, a rule stating that ‘[t]he firstborn shall succeed’ indicated that its subject was personal, and it might apply extraterritorially to property in Italy if the deceased were English. This method of classification was regarded by later statutists as excessively formal, and the statutist period was marked by unproductive debate about methods of classification. That also exhausted the intellectual vigour of scholarship in the subject, and by the 17th century proved inadequate to deal with new political conditions in Europe. 1.11  The statutists nevertheless revolutionised legal approaches to multi-state cases, and French statutists especially left a considerable doctrinal legacy to modern conflicts law. Thus, the statutists developed choice of law rules that still provide the basic approach to particular multi-state problems. Questions of procedure are governed by the law of the forum (the lex fori), liability for torts is often governed by the law of the place of the tort (the lex loci delicti), and rights to property are determined by the law of the place where the property is situate (the lex situs). The French scholar Charles du Moulin (1500–66) held that the traditional classification of rules as real or personal did not apply to questions of rights which depend on the will of the parties. In this case, the intention of the parties, whether express or tacit, determined their legal rights and obligations, an assumption which underlies the idea of party autonomy in English law and ‘the proper law of the contract’ choice of law rule. 1.12  The Reformation and the rise of nationalism in the 16th century decentralised political power in northern Europe, and municipal laws began to displace the supranational 8



Scope, Development and Purpose

1.13

Roman and canon laws. Jean Bodin’s Six Books of the Commonwealth legitimised the new political order by the idea of national sovereignty, in which a sovereign was regarded as unlimited within the territory he governed in power, function and duration. Moulin, Argentré and the Dutch scholars Christian Rodenburg (1618–68), Paul Voet (1619–77) and John Voet (1647–1714) all referred to aspects of national sovereignty in their theories of private international law. However, it was the Frisian scholar Ulric Huber (1636–94) who integrated the idea more thoroughly in his On the Conflict of Laws, a work which marks the first real departure from statutist theory. Huber’s theory was based on three assumptions which remain important to conflicts law. The first was ‘territorial sovereignty’ — that ‘[t]he laws of each state have force within the limits of that government and bind all subject to it; but not beyond’. This idea of territoriality was strengthened by Huber’s claim that all persons within the sovereign’s territory — whether permanently or temporarily — were his subjects. The second assumption was ‘comity’, an idea initially developed by Paul Voet. The local sovereign might give effect to a foreign sovereign’s laws in his own realm. This was only because of ‘convenience and the tacit consent of nations’ and not because the foreign sovereign’s laws had any right to be applied in the local sovereign’s country. The third assumption was implicit, but was later called ‘the theory of vested rights’. Foreign laws cannot — consistent with the idea of territorial sovereignty — have direct force in the local sovereign’s realm, but the local sovereign recognises rights valid in the foreign country in the interests of ‘commerce and … international usage’. To some extent these assumptions bring internal contradictions to Huber’s theory: unlimited sovereignty is especially difficult to reconcile with the recognition of rights created by another sovereign. But later scholars extended the role of Huber’s assumptions in conflicts of law. This was particularly so when the subject was first considered in the United States and England, and the idea of territorial sovereignty converged neatly with assumptions of territoriality that common law judges made in their first incursions into multi-state cases. As a result, Huber has probably had more influence on the development of common law rules of private international law than any other scholar or judge. 1.13  The United States presented ample opportunity for multi-state cases to arise, and Americans were the first common law scholars to consider theories of private international law. Early contributions to the subject were made by Samuel Livermore (d.  1833) and Chancellor James Kent (1763–1847). However, it was the Harvard scholar and Supreme Court Justice Joseph Story (1779–1845) who made a permanent contribution in his Commentaries on the Conflict of Laws (1834). This was an attempt to integrate the 506 common law decisions in multi-state cases — most of which were American — and European scholarship. Huber was credited with particular authority, and Story placed great emphasis on the comity of nations. This, he held, stood ‘upon just principles’, and was the most appropriate way to explain why a forum court might apply a foreign law, even though it was not under any obligation to do so. Story thought that courts should give effect to the comity of nations by presuming that, in the absence of local laws which specifically directed how foreign laws were to be treated, the government was prepared to recognise foreign laws unless they were repugnant to public policy or local interests. The Commentaries have been criticised for Story’s indiscriminate use of European scholarship, but the continuing importance of the work lies in his bringing organisation and coherence to the undeveloped common law principles — and rules relating to domicile, choice of law, jurisdiction in 9

1.13

Private International Law in Australia

multi-state cases and foreign judgments. In doing so, they were also profoundly to influence the English theorist Albert Venn Dicey (1835–1922) and the German Friedrich Carl von Savigny (1779–1861). 1.14  English scholarship on private international law followed soon after Story’s Commentaries. In 1838, William Burge published his Commentaries on Colonial and Foreign Laws, a work which dealt partially with the increasing problem of conflicting laws between the various legal systems of the British Empire. Texts on the law of domicile were published by the civilian judge Robert Phillimore in 1847 and H W Cole in 1857. Phillimore  was especially critical of ‘the spirit of an English common lawyer’ in Story’s work. But the first English lawyers to write comprehensive works on conflicts law were John Westlake (1828–1913), whose Treatise on Private International Law (1858) still largely depended on European scholarship, and John Alderson Foote (1849–1922), whose Treatise (1878) relied more on the decisions of English courts. The classic English text, however, became Dicey’s Conflict of Laws (1896), which finally established private international law as a department of English municipal law, rather than as a branch of public international law. It is the only one of the 19th century texts which has been continued, and the original and the 14 subsequent editions remain a profoundly influential work of high prestige. Dicey elevated the theories of territorial sovereignty and of vested rights. Accordingly, Dicey thought ‘that the Courts, eg, of England, never in strictness enforce foreign law; when they are said to do so, they enforce not foreign laws, but rights acquired under foreign laws’.16 The theory of vested rights was one reason why Dicey completely rejected comity as the reason why an English forum might apply foreign laws. It had nothing to do with the courtesy the forum showed to the foreign sovereign, but arose because it would cause inconvenience and injustice to litigants not to recognise the legal rights and obligations they acquired in the foreign country.17 1.15  Dicey’s ideas of territorial sovereignty and vested rights would be developed even further in the United States through Joseph Beale’s (1861–1943) Treatise on the Conflict of Laws (1935) and the (first) Restatement of the Conflict of Laws (1934). In Beale’s work, the doctrine of vested rights reached its pinnacle. Following Huber, Beale held that a sovereign — or state — only had the legislative power over transactions or events that occurred within its borders. This was coupled with a theory of the vesting of rights, by which Beale argued that a legal relationship (or a right to compensation) would ‘vest’ on the last event that could, by the law of the country where it occurred, create that relationship or right. As a result, a tort could only be recognised when, by the law of the place where the events occurred, a person would secure a right to compensation. At this point, said Beale, rights in tort would vest. The result was that, according to Beale, the governing law for a multi-state tort was the law of the place where the tort occurred. A similarly strong territorial emphasis was given in other areas of the law. For example, the governing law for a contract was the law of the place where the contract was made because this was the place where the rights vested. American choice of law, especially as Beale had articulated it in the First Restatement, acquired a rigidity that 16. 17.

A V Dicey, A Digest of the Law of England with Reference to the Conflict of Laws, Sweet & Maxwell, London, 1896, p 10. G W Bartholomew, ‘Dicey and the Development of English Private International Law’ (1959) 1 Tasmanian University Law Review 240.

10



Scope, Development and Purpose

1.17

European thinking did not have, and which eventually led American conflicts scholarship to react against vested rights in a more extreme way. 1.16  Private international law scholarship on the European continent in the late 19th century was dominated by Savigny’s Treatise on the Conflict of Laws (1849). Savigny also drew on Story’s Commentaries and, like Story, began with the idea of territorial sovereignty. He also accepted Huber’s idea of comity. But Savigny rejected the doctrine of vested rights as circular. The forum court might enforce rights acquired in a foreign country, but the question whether persons had acquired enforceable rights on the basis of their conduct in the foreign country still depended on whether it was to be judged by reference to the forum law or the foreign law. So, vested rights did not really indicate how the selection between forum and foreign law should be made.18 The Treatise was an attempt to state a private international law of universal application, and centred on the idea that it was possible to identify the ‘seat’ or territorial location of every legal relation by reference to factors like the domicile of the parties, the place where the transaction occurred, the place where any property or thing involved in the legal relation was located, and the place of the litigation.19 For the most part, this led Savigny to deduce choice of law rules similar to those which had been accepted since the statutist period. In this respect, his contribution was generally unoriginal, although the idea of finding the ‘seat’ of a legal relation by assessing its contacts with a particular place has also proved influential in the development of the English notion of the ‘proper law of the contract’ and related proposals for a ‘proper law of the tort’. However, Savigny brought even more important theoretical and doctrinal improvements to the subject. In the first place, he recognised that in approaching the choice of law problem a court did not necessarily classify the rules in question. Instead, the process of classification could address the legal relations involved in the dispute, and this is the approach he implicitly took to choice of law issues throughout the Treatise. Second, he expounded the idea that the basic purpose of private international law was to ensure consistent outcomes in litigation: ‘in cases of conflict of laws, the same legal relation (cases) have to expect the same decision, whether the judgment be pronounced in this state or that’.20 This is one reason why it was important that Savigny’s choice of law rules be universal, in the sense that they be recognised and applied in all countries. If, for example, all countries adopt a uniform choice of law rule that the validity of a marriage is to be determined by reference to the law of the place where it was solemnised, whether a case involving the validity of a marriage celebrated in Ruritania is dealt with in Australia, Hentzau or Ruritania, the law of Ruritania will be applied. So, regardless of where in the world the case is determined, the result is the same. European scholars later dubbed this idea ‘decisional harmony’. The idea was certainly implicit in the writings even of the statutists. Nevertheless, it was first elucidated by Savigny and remains a central objective of conflicts law. 1.17  There was a deeper, and more radical, ferment in American private international law scholarship in the 20th century. As mentioned, much of this was a reaction to the rigidity of 18. 19. 20.

F C von Savigny, A Treatise on the Conflict of Laws (W Guthrie trans), 2nd ed, Stevens & Sons, London, 1880, p 147. Savigny, above n 18, p 35. See also pp 195–7. Savigny, above n 18, pp 69–70.

11

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Private International Law in Australia

Beale’s emphasis on vested rights, and the impact that had in the courts that were prone to use the First Restatement. The most influential theorist in the ‘American conflicts revolution’ was Brainerd Currie. His theory of ‘interest analysis’ began with the assumption that the primary duty of the court was to its own sovereign. Therefore, if asked in a multi-state case to apply the law of a different country or state, the court in the forum had first to determine whether the legislative policies of its own sovereign would be advanced by application of its own forum law. If so, then the law of the forum had to be applied. If not, then a relevant foreign law could be applied. However, if the court in the forum also found that application of the foreign law would not advance policies of the foreign sovereign, then, by default, it would again apply the law of the forum. In other words, the court would only apply a foreign law if it found that policies of the forum were not advanced by application of the law of the forum to the case, and that the policies of the foreign sovereign would be advanced if the foreign law were applied to the case. Further, Currie argued that if the forum court found that, even though the forum and foreign law differed, they advanced similar policies, there was a ‘false conflict’. In most cases of a false conflict, the law of the forum would be applied. As a result, Currie eschewed the rules-based approach that the common law had taken since the reception of Huber’s multilateralism. Indeed, interest analysis could only be described as an ‘approach’ — Currie actually believed that ‘[w]e would be better off without choice-of-law rules’.21 It also meant that, instead of assessing the ‘seat’ of a legal relationship (as Savigny suggested), the court concentrated on giving effect to the different states’ interests in the way that the case would be decided. This naturally gave priority to the interests of the forum. Interest analysis, which has been adopted in some of the United States, has certainly led to parochial adjudication — but then it is supposed to.22

Institutional writing as a source of law 1.18  As is evident from the above account, the basic structure of common law choice of law method owes much more to the reflections of scholars than is usual in other departments of the common law. It is occasionally said that scholarship is of ‘particular value’ in deciding multi-state cases.23 As a result, while theoretical scholarship is rarely recognised as a direct, authoritative source of law in common law jurisdictions, in practice it has been a significant source of ideas, principles and rules in private international law. In the 19th century, this could be attributed to the large gaps in the field and the higher frequency of novel cases — the phenomenon of ‘case-sparseness’.24 In 1879, Frederic Harrison could still observe that:25 … when a decision of [private international law] arises, it is seldom decided off-hand with reference to merely English decisions. Books are cited as authorities which are usually 21. 22. 23. 24.

25.

B Currie, Selected Essays on the Conflict of Laws, Duke University Press, Durham NC, 1963, p 183. For an account of subsequent developments in interest analysis, see L Brilmayer, Conflict of Laws, 2nd ed, Aspen, Gaithersburg, Md, 1995. Hesperides Hotels Ltd v Muftizade [1979] AC 508 at 536; Re AM McKenzie, dec’d (1951) 51 SR (NSW) 293 at 297; Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 488. R Fentiman, ‘“Legal Reasoning in the Conflict of Laws”: An Essay in Law and Practice’ in W Krawietz, N  MacCormick and GH von Wright (eds), Prescriptive Formality and Normative Rationality in Modern Legal Systems, Duncker & Humblot, Berlin, 1994, pp 443, 445–8. F Harrison, On Jurisprudence and the Conflict of Laws, Clarendon Press, Oxford, 1919, p 102.

12



Scope, Development and Purpose

1.19

foreign … An author such as Huber, a Dutch professor of the seventeenth century, is constantly quoted … Story, Foelix and Boullenois are in constant requisition, and the court will seriously attend to dicta of foreign lawyers writing under systems widely different from our own and from each other, whose notions of jurisprudence rest upon theories entirely contrary to our own.

By the time Dicey wrote in 1896, a considerable body of precedent had become available. But even at that point it was thought that the particular influence of Story, who was himself deeply indebted to continental jurists, meant that English courts were still necessarily affirming foreign academic opinion. The influence of Dicey, in particular, is profound, and his Conflict of Laws is still sometimes cited as representing the law without further comment or reference to precedent.26 Conflict of Laws’ organisation as a sequence of structured rules and sub-rules, with commentary beneath each rule, encourages its use by courts as an easily referenced code and, so, a source of law.27 No other text has this stature, and it may be that, with the present form of private international law as a developed body of the common law, other academic opinion is now largely an indirect source of law. However, the complexity of the problems and solutions that arise in multi-state cases almost guarantees that scholarship in the subject will continue to have a persuasive role.

Judicial development in England 1.19  England was slower than the countries of the European continent to develop a private international law that was actually applied by the courts. There were a number of features of the English legal system that obviated the need for conflicts law, and thereby retarded its development. The first was the centralised administration of justice — and hence the application of one body of law common to all of England — that developed from the 12th century. The English courts never had to deal with the conflicts of regional and provincial laws that courts in the decentralised Low Countries, Italy and France did. Second, the powerful common law courts had jurisdictional rules that precluded the hearing of multi-state cases until the 17th century. Trials at common law were by a jury drawn from the district where the relevant events took place, because jurors decided questions of fact on the basis of their own personal knowledge. As the sheriff had no power to empanel a jury of foreigners, trial by jury effectively prohibited common law jurisdiction in cases involving international elements. Third, the Court of Chancery did claim the right to adjudge claims involving property outside England. However, this only existed when it had personal jurisdiction over defendants by reason of their presence in England, and in these cases it only applied English equity.28 Fourth, the several courts that did assume jurisdiction in multi-state cases applied international laws, and therefore encountered no problems of conflicting English and foreign laws. The High Court of Admiralty had exercised jurisdiction in multi-state cases from the 14th century, but applied the international law of 26. 27.

28.

See CK Allen, Law in the Making, Clarendon Press, Oxford, 1927, pp 154–6. Fentiman, above n 24, pp 458–9; CGJ Morse, ‘Making English Private international law’ in J Fawcett, Reform and Development in Private International Law, Oxford University Press, Oxford, 2002, pp 273, 282–5; M  Keyes, ‘Order, Illumination and Influence: Dicey, Morris & Collins on the Conflict of Laws, Fourteenth Edition’ (2007) 3(2) Journal of Private International Law 355 at 356–8. For example, Penn v Lord Baltimore (1750) 1 Ves Sen 444; 27 ER 1132.

13

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Private International Law in Australia

the sea, which was based on the ancient sea law of Rhodes and, in northern Europe, on the customs of Oleron and Wisby. The staple courts and the courts of pie poudre applied the international law merchant. Indeed, they sometimes referred to this as the law of nations or ius gentium.29 It has also been called the ‘private international law of the Middle Ages’.30 Fifth, with the sole exception of the advocates who practised in the civilian courts, the English legal profession was largely insulated from the bursts of Roman law scholarship that had taken place in the European universities from the 12th century. The education of an English lawyer was practical, conducted through the Inns of Court and based on writs, pleadings and English feudal land law. The rational discourses of civilian scholars were completely alien to the common law method, and it is no accident that the first judges in England to draw on the European scholarship sat in civilian courts or, as in Lord Mansfield’s case, had received education in Roman law. It is probable that, with the House of Lords hearing more Scottish appeals, continental influences were mediated to English judges through their first exposure to Scottish law, which had had a more significant reception of Roman law.31 1.20  Important developments in jurisdictional rules in the 17th century laid the basis for the common law courts to consider multi-state cases, and eventually to adopt choice of law rules to deal with them. These were motivated by the common law courts’ attempts to appropriate jurisdiction and business from the Court of Admiralty, and rested on the simple fiction of pleading that all the relevant circumstances occurred in England — for example, ‘on the island of Minorca … at London … in the parish of St Mary le Bow, in the ward of Cheap’.32 Initially this did not lead to the development of choice of law rules to deal with foreign laws relevant to the case. The earlier approach at common law was to require that the matter first proceed to judgment in a foreign court, and then enforce the foreign judgment in England by an action in debt. 1.21  The first choice of law rules were adopted by English courts in the late 17th and 18th centuries, and in general the judges imported the solutions to multi-state cases already suggested in the European scholarship. The landmark decision in this period was that of Lord Mansfield in Robinson v Bland.33 The plaintiff Englishman lent Sir John Bland, another Englishman, the sum of £300 in Paris for gambling. Sir John lost this and other sums to the plaintiff and so gave him a bill of exchange payable in England. After Sir John’s death, the plaintiff brought actions claiming, inter alia, repayment of the £300 loan by Sir John’s administrator. Evidence proved that, in France, money lost in gambling between two gentlemen could be recovered as ‘a debt of honour’ before the Marshals of France. The Court of King’s Bench held that the plaintiff could recover the loan; Lord Mansfield and Wilmot J holding that the laws of England and France on point were the same. However, the court also considered how it should have dealt with the law of France if it had differed from English law. Denison and Wilmot JJ thought English law should apply as the plaintiff 29. 30. 31. 32. 33.

Luke v Lyde (1759) 2 Burr 882 at 887; 97 ER 614 at 617; see 1.9. W Mitchell, An Essay on the Early History of the Law Merchant, Cambridge University Press, Cambridge, 1904, pp 1, 21. A E Anton, ‘The Introduction into English Practice of Continental Theories of Conflict of Laws’ (1956) 5 International and Comparative Law Quarterly at 534. Mostyn v Fabrigas (1775) 1 Coup 161; 98 ER 1021 at 1022; Ward’s Case (1625) Latch 4 at 5; 82 ER 245 at 246. (1760) 1 Wm Bl 234 at 256; 2 Burr 1077; 96 ER 129 at 141; 97 ER 717.

14



Scope, Development and Purpose

1.23

sued in an English court. But on the basis of comity, the ‘ius gentium’ and the authority of Huber, Lord Mansfield ruled that a contract is generally governed by the law of the place where it was made unless the parties intended it to be governed by some other law. In this case, he concluded that, if there had been a conflict of laws, the loan would be governed by English law. 1.22  Robinson v Bland stands at the crossroad of common law development in multi-state cases. Denison and Wilmot JJ’s approach embodied the older unilateral perspective that viewed the question through the eyes of English law. Lord Mansfield, though, took the modern multilateral approach which, through a choice of law rule, selects a jurisdiction that then provides the rules that dispose of the case. In this late 18th and early 19th century period, multilateralism gradually gained ascendance in civilian and common law courts. They ruled that an English court could not entertain an action relating to immovable property outside England,34 that succession to movable property was governed by the law of the deceased’s domicile,35 that the validity of a marriage was governed by the law of the place where it was solemnised,36 and that there was no liability in tort if the action were lawful in the place where the tort occurred.37 Westlake observed that this course of decisions showed — unusually — a ‘reception’ of civilian doctrine into the common law. Though often only implicitly, Huber’s ideas of sovereignty and vested rights especially loomed large in many judgments.38 And, even though English conflicts law has developed substantially since this early period, it still possesses a more civilian structure than other departments of the common law do.

An Australian private international law 1.23   The emergence of an Australian private international law — distinctive from the English law that Australian courts necessarily received or adopted — has been influenced by a number of considerations: the creation of the Australian federation; special regional ties with near neighbours; the United Kingdom’s own distancing from common law institutions by its membership (for the time being) of the European Union; and the fragmentation of the common law world. For the most part, distinctive Australian approaches to private international law have involved questions of jurisdiction and the enforcement of judgments, with no real departure from English antecedents in choice of law until the early 2000s. In the colonial period, New South Wales  developed a model statute, adopted elsewhere in Australasia, to deal more effectively with intercolonial absconding debtors by making Australasian money judgments easier to enforce.39 The particularly generous recognition of 34. 35. 36. 37. 38. 39.

Shelling v Farmer (1726) 1 Stra 646; 93 ER 756. Pipon v Pipon (1744) Amb 25; 27 ER 14. Scrimshire v Scrimshire (1752) 2 Hag Con 395; 161 ER 782. Blad v Bamfield (1673) 3 Swans 603; 36 ER 992; Dutton v Howell (1693) Shower 24 at 30, 34; 1 ER 17 at 21, 23; Mostyn v Fabrigas (1775) 1 Coup 161; 98 ER 1021. For example, Holman v Johnson (1775) 1 Coup 341; 98 ER 1120; Dalrymple v Dalrymple (1811) 2 Hagg Con 54; 161 ER 665. Further Remedies to Creditors Act  1855 (NSW); Australasian Creditors Act  1858 (NZ); Common Law Practice Act 1867 (Qld), ss 20–22; Further Remedies to Creditors Act 1856 (SA); Remedies to Creditors Act 1857 (Tas); Further Remedies to Creditors Act 1858 (Vic); Relief of Creditors Ordinance 1856 (WA).

15

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Private International Law in Australia

intercolonial and interstate judgments that has marked Australian law began as a Federal Council of Australasia initiative in 1886.40 It was refined through early federal legislation41 and, finally, the Service and Execution of Process Act  1992 (Cth), which gives complete enforcement jurisdiction throughout the nation to all state and territory courts.42 The interstate adjudicative jurisdiction of colonial and state courts also began as an Australasian statute,43 and then proceeded through the same developments in federal statute law.44 The Act of 1992, together with the cross-vesting scheme that applies to all superior courts,45 have given rise to a scheme by which, roughly, all federal, state and territory civil process can be served on any person anywhere in Australia, but proceedings are then transferred to, or stayed in favour of, ‘the appropriate court’ (or forum conveniens).46 The outcome is that ‘the more appropriate court’ in Australia, as determined by judicial discretion, is supposed to deal with litigation. This scheme has now been extended to legal questions relating to New Zealand, and in a sense has returned the scheme to an Australasian model of private international law where ‘the more appropriate court’ in Australia or New Zealand  deals with legal proceedings.47 1.24  It is through intra-national cross-border arrangements that the most distinctive developments in Australian private international law have taken place, and these arrangements have driven further developments in international questions. Australia is not only a highly homogenous and integrated federal system with shared political, cultural and linguistic traditions, but its courts – since Federation – have been subject to the overriding appellate control of the High Court in all federal, state and territory matters.48 This has encouraged the development of a distinct system of private international law for intranational disputes, although in choice of law (as opposed to jurisdiction and judgments) this only emerged in the 2000s. The emerging differences between English and Australian law started to become evident with the publication of the first Australian textbook in the field in 1968, Conflict of Laws in Australia49 by the Dutch-Australian academic and judge Peter Nygh (1933–2002). Nygh’s Conflict of Laws was structured along the lines of the English texts and, while referring to Australian authority throughout, still relegated to the end chapters all of the unique Australian issues — interstate conflicts, full faith and credit,

40. 41. 42. 43. 44. 45. 46. 47.

48.

49.

Australasian Judgments Act 1886 (FCA). Service and Execution of Process Act 1901 (Cth) s 21. Judgment debtors have no defences to interstate enforcement: Service and Execution of Process Act 1992 (Cth) ss 105, 109. Australasian Civil Process Act 1886 (FCA). Service and Execution of Process Act 1901 (Cth) ss 4, 11; Service and Execution of Process Act 1992 (Cth) ss 12, 15. See 2.24–2.36. See 4.55–4.80. See Trans-Tasman Proceedings Act 2010 (Cth); Trans-Tasman Proceedings Act 2010 (NZ); R Mortensen, ‘Together Alone: Integrating the Tasman World’ in A Dickinson, M Keyes and T John (eds), Australian Private International Law in the 21st Century, Hart Publishing, Oxford, pp 113, 142–4. R Garnett, ‘Sir Zelman Cowen and the Emergence of an Interstate Private International Law in Australia’ (2015) 38 Melbourne University Law Review 1041 at 1044; Z Cowen, American-Australian Private International Law, Oceana Publications, 1957, p 84. PE Nygh (with EI Sykes and DJ MacDougall), Conflict of Laws in Australia, Butterworths, Sydney, 1968.

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Scope, Development and Purpose

1.25

the Service and Execution of Process Act  1901 (Cth), questions of federal jurisdiction.50 They were still treated as mere additions to the core body of English-influenced law. Dr Nygh noted that ‘a divergence’ existed with English law and was being widened, but considered that the principal need for an Australian text was to encourage Australian experimentation with local solutions to multi-state legal problems.51 However, by 1976 Nygh’s Conflict of Laws had more comprehensively integrated the distinctive Australian law of interstate conflicts with the main body of the text and, in addition, aimed to deal just as comprehensively with New Zealand legal authorities.52 Nygh abandoned efforts at including New Zealand law in 1991, concluding that ‘the independent path taken by Australia has meant that New Zealand could no longer be treated as an addendum’.53 A second series of text began in 1972 when Professor Edward Sykes (1910–2006) published A Textbook of the Australian Conflict of Laws.54 Although this began as an integrated work of Australian law, the strong debt to English developments was still evident and, indeed, recent changes in English law were the sole rationale that Professor Sykes gave for the text.55 A Textbook also attempted to organise the law differently to the traditional distinctions between jurisdiction, the enforcement of judgments and choice of law but, when recasting the work jointly with Professor Michael Pryles (b. 1945) in 1979, Sykes reverted to the traditional categories. Renamed as Australian Private International Law, this series ended in 1991.56 1.25  It was not until 2000 that any Australian choice of law rule departed from the law inherited from the common law of England, and it was the Constitution’s full faith and credit clause (s 118) that drove the change. A new source of choice of law almost arose in 1988, when a minority of three judges in the High Court held that the law governing an interstate tort should be governed by constitutional considerations rather than the common law.57 The approach, nevertheless, gained no ground through the 1990s.58 However, the recognition in Lange v Australian Broadcasting Corporation59 that the common law of Australia had to conform to the demands of the Constitution eventually saw s 118 become important for a re-writing of choice of law rules in tort.60 The High Court held in 2000 that s 118 gave states a predominant territorial interest in events within their borders and, accordingly, the law of a state where a tort occurred would govern an interstate tort case. In doing so, the court abandoned the old English choice of law rule that required reference to both the law of the forum and the law of the place where the tort occurred. Although the Constitution 50. 51. 52. 53.

54. 55. 56.

57. 58. 59. 60.

At pp 653–715. At pp 5–6. PE Nygh, Conflict of Laws in Australia, 3rd ed, Butterworths, Sydney, 1976, pp v–vi. PE Nygh, Conflict of Laws in Australia, 5th ed, Butterworths, Sydney, 1991, p xvi. The series is now in its ninth edition: M Davies, AS Bell and PLG Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, Sydney, 2014. EI Sykes, A Textbook of the Australian Conflict of Laws, Law Book Company, Sydney, 1972. At pp vi–ix. EI Sykes and MC Pryles, Australian Private International Law, Law Book Company, Sydney, 1979; EI Sykes and MC Pryles Australian Private International Law, 2nd ed, Law Book Company, Sydney, 1987; EI Sykes and MC Pryles Australian Private International Law, 3rd ed, Law Book Company, Sydney, 1991. Breavington v Godleman (1988) 169 CLR 41 (Deane, Wilson and Gaudron JJ). See 11.8–11.12. McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1; Stevens v Head (1993) 176 CLR 433. (1997) 189 CLR 520. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; see 11.13–11.19.

17

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Private International Law in Australia

could have no effect on foreign tort cases, this development then influenced the adoption of a similar rule for torts that occurred overseas.61 It was after these developments that the current textbook series Private International Law in Australia began, recognising modern understandings of the relationship between adjudicative jurisdiction and the enforcement of judgments, clarifying the structure of choice of law method, and giving prominence to fundamental principles of the Constitution and statutes under choice of law.62 1.26  The historical and constitutional ties of Australia to the United Kingdom and the common law world more generally mean that these continue to influence Australian private international law.63 Still, recently both of the above factors have diminished, and compounded the differences between Australian and English private international law that the Australian Constitution has also driven.64 English materials in private international law are of ‘ever decreasing utility’ to Australia given the dominant focus, for the time being, on litigation in the United Kingdom involving European Union law — especially in the case of jurisdiction, the enforcement of judgments and choice of law in contract and tort.65 Further, in two major common law countries, Canada and the United States, private international law principles have veered widely from the English common law origins.66 The growing lack of uniformity in the common law world should therefore encourage Australian judges and lawmakers to develop a uniquely Australian private international law. Some evidence of this ‘independence’ can be seen in three distinctive developments in Australia. First, in Neilson v Overseas Projects Corp (Vic) Ltd67 the rule that the High Court had adopted for choice of law for torts68 was supplemented by the doctrine of renvoi69 — an approach that is unique in the common law world and contrary to international trends that prefer to prohibit the use of renvoi in choice of law. It adds extreme complexity to Australian choice of law — so extreme that lower courts have at times seemed unaware of its relevance.70 Second, Australian principles of establishing jurisdiction by the cross-border service of process have progressively grown in exorbitance — which means that the connection that a party or the subject-matter of the proceedings has with the forum is tenuous. The Supreme Court of New South Wales, in particular, led this development with a rule that allowed service outside New South Wales when the action related to damage suffered within the state for a tort ‘wherever occurring’. This permits jurisdiction in cases where nothing more than the 61. 62.

63. 64. 65.

66. 67. 68. 69. 70.

Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; see 11.19. RG Mortensen, Private International Law in Australia, LexisNexis Butterworths, Sydney, 1996; R Mortensen, R Garnett and M Keyes, Private International Law in Australia, 2nd ed, LexisNexis Butterworths, Sydney, 2011; R Mortensen, R Garnett and M Keyes, Private International Law in Australia, 3rd ed, LexisNexis Butterworths, Sydney, 2015. A Dickinson, ‘The Future of Private International Law in Australia’ (2012) 19 Australian International Law Journal 1 at 3. See 1.24. A Dickinson, ‘What, If Anything, Can Australia Learn from the EU Experience?’ in A Dickinson, M Keyes and T John (eds), Australian Private International Law for the 21st Century, Hart Publishing, Oxford, 2014, pp 157, 160–1. Dickinson, above n 65, p 4. (2005) 223 CLR 331; [2005] HCA 54. See 1.24. For an explanation of the doctrine of renvoi, see 8.13–8.35. Cf Hodgson v Dimbola Pty Ltd [2009] ACTSC 59; discussed at 18.8.

18



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1.27

loss of earning capacity or of the plaintiff ’s financial loss arises in the state. In effect, the rule can give jurisdiction to the state courts just because the plaintiff lives in the state. The jurisdiction has since been adopted in most states and in the territories.71 The law of New South Wales also allows the exercise of jurisdiction in claims over foreign land or immovable property where almost all other common law jurisdictions do not.72 And even though most common law countries, under the doctrine of forum non conveniens,73 put limits on the exercise of jurisdiction when there is a clearly more appropriate forum to deal with the litigation, the High Court opted for principles that were friendlier towards a plaintiff ’s choice of court.74 More recently, the harmonised rules that have been adopted in New South Wales, South Australia, Tasmania and Victoria for the service of civil process overseas allow a state court to exercise jurisdiction merely when a relevant incident occurs ‘in Australia’ — and so potentially outside the relevant state. These rules allow the relevant state court to exercise jurisdiction in cases that have no connection at all with the state — a clear instance of an exorbitant jurisdiction that no other country has been prepared to claim.75 Third, Australia has implemented more of the family law conventions concluded by the Hague Conference on Private International Law than any other country. The influence of Peter Nygh in this respect is noteworthy.76 An Australian delegate to the Hague Conference and, from 1979, a judge of the Family Court of Australia, Justice Nygh promoted Australia’s implementation of, among other Hague Conventions, the Marriage Validity Convention,77 the Divorce Convention,78 the Child Abduction Convention,79 the Child Protection Convention80 and the Maintenance Convention.81 In contrast to the parochial manner in which general civil jurisdiction has developed in Australia, Nygh’s work in Australia’s international family law has given it a strong internationalist dimension.

Objectives 1.27  The question arises as to what policy objectives are promoted by private international law. In particular, why should a court in the forum ever apply the law of another country or state? Why should it not always apply the law of the forum? Scholars and judges have long speculated about the objectives of private international law, but today there is probably recognition that it serves a number of sometimes competing purposes. These include the need to promote uniformity or predictability of legal, social or economic consequences; the expectations or intentions of the parties; the validation of legal transactions or relationships; respect for the interests of other countries and states; international and interstate 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81.

Dickinson, above n 65, p 169; see also 2.77–2.78. See 3.8. See 4.32–4.47. Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; Henry v Henry (1996) 185 CLR 571. See 2.24–2.47. See 1.24; and D Bennett, ‘Peter Edward Nygh’ (2002) 76 Australian Law Journal 595 at 596. See 13.2. See 14.19. See 15.29. See 15.1, 15.62. See 16.18.

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co-operation; and the justice of the result in the particular case. To some extent these can be reduced to three more general themes frequently found in rationales for the enforcement of foreign law or rights: (1) consistency; (2) particular justice; and (3) international and interstate comity.

Consistency 1.28  The idea that choice of law rules especially are designed to promote certainty, predictability and uniformity in the adjudication of multi-state cases has been an important assumption behind the application of foreign laws, and since Savigny has been identified as a central objective of modern conflicts law. Ensuring consistent outcomes in multi-state cases is naturally one aspect of the basic principle of the rule of law that like cases be decided alike.82 Therefore, a reason why a court in the forum might apply the law of Ruritania is to deliver an outcome similar to that which a court in Ruritania would have delivered had the action been dealt with there. The result is that individuals can predict the legal consequences of their actions even when they have contact with other countries and states, and it allows them to make appropriate plans for personal and business arrangements that cross borders. These are basic prerequisites to the maintenance of international and interstate order and economic development. Similar objectives are sometimes recognised in questions of jurisdiction, especially where the jurisdictional rules aim to have litigation placed in a court in the place that provides the law of the cause. 1.29  The goal of consistency therefore also aims to minimise the legal significance of the plaintiff ’s choice of forum, and so discourages the practice of forum shopping. This involves plaintiffs bringing an action in one court primarily to obtain material benefits that they could not obtain had they sued in a more appropriate court. Thus, the plaintiff in Breavington v  Godleman83 brought an action relating to a motor vehicle accident in the Northern Territory in the Supreme Court of Victoria because damages for economic loss were recoverable in Victoria but not in the Northern Territory. The plaintiffs in Perrett v Robinson84 and Stevens v Head85 sued in Queensland even though the claims arose out of motor vehicle accidents in (respectively) the Northern Territory and New South Wales, because more generous damages awards were available in Queensland than in the other jurisdictions. In McKain v RW Miller & Co (SA) Pty Ltd86 the expiration of the limitation period barred a claim for personal injuries in South Australia, where the accident occurred. The plaintiff therefore commenced proceedings in New South Wales, where the limitation period had not expired. In some of these cases, High Court judges expressly denounced the practice of forum shopping as undesirable.87 In John Pfeiffer Pty Ltd v Rogerson88 and 82. 83. 84. 85. 86. 87.

88.

BR Opeskin, ‘The Price of Forum Shopping: A Reply to Professor Juenger’ (1994) 16 Sydney Law Review at 14. (1988) 169 CLR 41. (1988) 169 CLR 172. (1993) 176 CLR 433. (1991) 174 CLR 1. Breavington v Godleman (1988) 169 CLR 41 at 73–4, 76, 88, 91, 113, 147–8, 161, 170; McKain v RW Miller Pty Ltd (1991) 174 CLR 1 at 23, 29, 50; Stevens v Head (1993) 176 CLR 433 at 452; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 212. (2000) 203 CLR 503; [2000] HCA 36.

20



Scope, Development and Purpose

1.30

Regie Nationale des Usines Renault SA v  Zhang, the High Court adopted choice of law rules for interstate and international tort cases that were specifically designed to deter forum shopping. Having said that, the High Court has since used complications in choice of law method and processes of classification to apply the law of the forum in interstate and international cases. Therefore, in the Western Australian case of Neilson v Overseas Projects Corp of Victoria Ltd,90 the High Court applied the Western Australian limitation period to a case involving a tort in China.91 And, in the Victorian case of Sweedman v Transport Accident Commission,92 the High Court applied the law of Victoria to an accident that took place in New South Wales on the contestable ground that the claim was for an indemnity and was not a tort or tort-like.93 It may be that, as an objective for conflicts law, the goal of consistency is both unrealistic and, on occasion, subversive of just results in particular cases, although it seems difficult to put Neilson and Sweedman in those categories. Universal agreement on choice of law rules is nevertheless unlikely and still would not promote consistency if, for example, they required application of the law of the forum. And, even if all countries’ choice of law rules uniformly required Ruritania’s law to be applied in a particular case, there is no guarantee that the result would be just. Ruritania’s law may be intrinsically unjust, even a ‘drag … on the coat-tails of civilisation’.94 So, forum shopping is not only regarded as inevitable; in multi-state cases, it is also a useful means of avoiding and marginalising unjust laws.95 89

1.30  While rules of private international law remain municipal laws, consistency is effectively an unattainable goal. A more realistic objective is a more general body of principles that provides some reasonable regularity in multi-state litigation. But greater consistency in outcome is more feasible within a federation. This is especially so in a relatively small federation like Australia, where there is a uniform national common law and largely uniform choice of law rules. In its 1992 Choice of Law report,96 the Law Reform Commission adopted consistency — ‘uniformity of result’ — as the main objective of the reform of choice of law rules applicable in interstate cases. The commission also preferred to pursue the goal of consistency in international cases, though this would necessarily require much more international co-operation in the development of choice of law rules than is presently even conceivable. John Pfeiffer Pty Ltd v Rogerson97 is a watershed in High Court jurisprudence on the need for a basic policy of pursuing consistent outcomes in litigation. Certainty and predictability of outcome, as well as the need to deter forum shopping, were significant reasons for the court in Pfeiffer making radical revisions of the choice of law rules for interstate torts.98 And in Neilson v  Overseas Projects Corp of Victoria Ltd,99 the 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99.

(2002) 210 CLR 491; [2002] HCA 10. (2005) 223 CLR 331; [2005] HCA 54. See 8.20–8.27. (2006) 226 CLR 362; [2006] HCA 8. See 18.38–18.39. Clark v Clark 222 A 2d 205 at 209 (1966). F K Juenger, ‘What’s Wrong with Forum Shopping?’ (1994) 16 Sydney Law Review at 5. Australian Law Reform Commission, Choice of Law, Report No 58, Canberra, AGPS, 1992. (2000) 203 CLR 503; [2000] HCA 36. At 532, 536, 538–40, 552–3, 560. (2005) 223 CLR 331; [2005] HCA 54.

21

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Private International Law in Australia

High Court elevated the goal of consistency in international litigation over and above all other goals of private international law. The court claimed in Neilson to be adopting the same outcome that it was believed that, in the circumstances of the case, a Chinese court would be inclined to give. However, there were great uncertainties in Neilson as to what a Chinese court would actually decide, showing that the search for consistency does not always give either a predictable or certain result.100

Particular justice 1.31  The fact that a case heard in the forum has contacts with another country or state might indicate to the judge that application of the other country’s or state’s law will produce a more just outcome than application of the forum’s law. Aldricus’ suggestion that a judge apply the law which is better and more useful is the oldest reason given for the application by a judge of a foreign law. Professor Robert Leflar listed ‘the better law’ as one consideration the judge should take into account when choosing between the forum’s law and the foreign law,101 and ‘the better law’ has been openly decisive in cases determined in parts of the United States.102 Otherwise, it is only rarely that judges openly admit that they are applying the forum or foreign law because it produces justice in the particular case.103 In many multi-state cases, nevertheless, the result is one which appeals intuitively to a sense of justice. Haque v Haque (No 1)104 provides an example. 1.32  The testator in Haque (No 1) was an Indian Muslim. He entered a polygamous marriage with Azra Bux, a West Pakistani Muslim, in Fremantle in 1955. They had executed a pre-nuptial agreement, by which the testator promised to regard Azra as his lawful wife and any children of the marriage as legitimate and entitled to all the rights of inheritance granted to them under Islamic law, regardless of any later will or disposition the testator might make. Subsequently, the testator made a will leaving all his property to his brother, Nural Haque. There were two children of the 1955 marriage. The testator died in 1956, and Azra and her children brought a claim in Western Australia based on the pre-nuptial agreement. Its success partly depended on the application of Islamic law, under which the polygamous marriage, the legitimacy of the children and their rights of inheritance were recognised. To the extent that it related to movable property, the High Court upheld the claim, even though a polygamous marriage had no effect under the law of Western Australia. The applicable law of the cause was held to be the law of the testator’s domicile. He was domiciled in India, and the law of India recognised Islamic law as his personal law. The court therefore ordered that the testator’s movable estate be distributed in accordance with Islamic law.

100. See 8.20–8.27. 101. R A Leflar, ‘Choice-Influencing Considerations in Conflicts Law’ (1966) 41 New York University Law Review at 267. 102. For example, Milkovich v Saari 203 NW 2d 408 (1973); Allstate Insurance Co v Hague 449 US 302 (1981). 103. Cf Siegelman v Cunard White Star Ltd 221 F 2d 189 at 206 (1955); National Bank of Greece and Athens SA v Metliss [1958] AC 509 at 525. 104. (1962) 108 CLR 230.

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Scope, Development and Purpose

1.34

1.33  For a number of reasons, justice was probably better served in Haque (No 1) by application of Islamic law than it would have been by application of the law of the forum, Western Australia. First, Islamic law as the personal law of both parties set the mental legal referent by which they were used to organising their legal relations. As the court said: ‘[I]t was an attempt by Muslims honestly and genuinely to establish a relation which Muslim law would recognise’.105 In that light, it would be unjust to upset the marriage relationship by application of the law of Western Australia, which did not figure significantly in the formation of legal relations between them. Second, application of Islamic law protected the intentions of the parties as formalised in the pre-nuptial agreement and, unlike the law of the forum, would not give effect to the testator’s attempt to renege on his promise to provide for the children of the marriage. Honouring the reasonable expectations of the parties is an important mode by which application of foreign law serves the interests of particular justice. It is naturally more important in cases like Haque (No 1) where parties’ expectations and intentions are relevant to the creation and management of the legal relationship, and is prominent in multi-state contract cases where parties are mostly free to choose the law that will govern the contractual relationship.

International and interstate comity 1.34  The doctrine of comity was the basis for the application of foreign laws according to Story, but mainly used to emphasise that a forum court had no obligation to apply the law of another country or state. Today, it is probably more important in North America than elsewhere for explaining why a foreign law might be applied. In the United States, in any case, the courts are more likely to provide policy reasons for the application of a foreign law. In interstate cases in the United States, there are constitutional considerations that sometimes compel a court in the forum state to apply the other state’s law. Occasionally, American courts appeal to the idea of comity where constitutional considerations do not operate, as when the foreign law is that of another country,106 or a Native American sovereignty.107 But despite the use of the idea of comity, it is still imprecise. In Hilton v Guyot, Gray J offered the following definition:108 ‘Comity’, in the legal sense, is neither a matter of absolute obligation on the one hand, nor of mere courtesy and goodwill upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.

Thus, comity represented some discretionary power for recognising foreign laws, short of an obligation to do so. The actual decision in Hilton v Guyot also assumed that comity imported requirements of mutuality and reciprocity between the relevant countries’ laws 105. At 249. 106. Yoder v Yoder 3330 A 2d 825 (1974); Keen Corp v Caldwell 840 SW 2d 715 (1992). 107. Marriage of Red Fox 542 P 2d 918 (1975); Brown v Babbit Ford Inc 571 P 2d 689 (1977); Leon v Numkena 689  P 2d 566 (1984); L L Vest, ‘Cross-Border Judgments and the Public Policy Exception: Solving the Foreign Judgment Quandary by Way of Tribal Courts’ (2004) 153 University of Pennsylvania Law Review 797 at 803–4. 108. 159 US 113 at 163–4 (1894).

23

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Private International Law in Australia

and so, even though foreign judgments could be recognised as conclusive in New York, a French judgment was not. French courts did not recognise any foreign judgments as conclusive, and therefore did not reciprocate the New York rule.109 However, the need for reciprocity as a precondition to the application of a foreign law is questionable, because a court does not usually make its own rules dependent on those of other countries. This form of private law retaliation is probably best avoided. It is also doubtful whether the idea of comity can be reduced to such a concrete rule. The better approach seems to be that it is a principle which obliges the forum court unilaterally to seek a reasonable accommodation between the interests of the forum and the foreign country, and the mutual interest all countries have in promoting a harmonious international legal order.110 1.35  The doctrine of comity therefore does not necessarily indicate how an accommodation between forum, foreign and international interests is to be made. It only indicates that the accommodation might possibly lead the forum court to apply a foreign law. This justifies one of Dicey’s criticisms, that comity did not explain the actual content of conflicts rules.111 It only indicated the motive, for example, for applying the law of Ruritania to a multi-state contract case. It did not explain why the law of Ruritania should be considered the proper law of the contract and should govern the outcome of the case. In Neilson v Overseas Projects Corp of Victoria Ltd,112 Gummow and Hayne JJ said that ‘comity is “either meaningless or misleading”; it is “a matter for sovereigns, not for judges required to decide a case according to the rights of the parties”’. That much is true, and it is not a criticism that can be made as easily of consistency and particular justice as reasons for applying a foreign law.

109. Hilton v  Guyot 159 US 113 at 227–8 (1894). See also Schibsby v  Westenholz (1870) LR 6 QB 155 at 159; Travers v Holley [1953] P 246 at 257. 110. Société Nationale Industrielle Aérospatiale v United States District Court for the Southern District of Iowa 482 US 522 at 555 (1986). 111. Dicey, above n 16, pp 10–11. 112. (2005) 223 CLR 331 at 363; [2005] HCA 54.

24

PART 2 Jurisdiction and Judgments

Chapter 2 Personal Jurisdiction Introduction 2.1  ‘Jurisdiction’ has a number of different meanings, but in private international law, it refers to the authority that a court has to deal with a particular case, according to its own rules of competence. The rules of jurisdiction in private international law therefore indicate when, according to the law of the forum, a court can hear and determine particular multistate cases. In this chapter and Chapters 3 and 4 the discussion is limited to the rules of jurisdiction — under the laws of Australian states and territories — in personal actions. These are actions in which the technical object is to establish a claim against a person.1 In practical terms, the plaintiff brings the action to compel the defendant personally to perform (or not to perform) an act or to pay the plaintiff a sum of money. Personal actions include the most common claims brought in relation to contracts, torts and property rights, and equitable suits for specific performance and injunctions. They do not include matrimonial causes, proceedings between de facto couples, or proceedings concerning the care of, or responsibility for, children. The special rules relating to the original jurisdiction of the Family Court in these matters are discussed in Chapters 14 and 15. In Australia, a court’s jurisdiction in a multi-state case also depends on whether the rules of jurisdiction originate in the common law or statute, and whether the defendant is in another state or territory or in another country. Therefore, a distinction is made between jurisdiction at common law, jurisdiction in interstate cases, and jurisdiction in international cases.2 2.2  At the outset, it should be emphasised that a court will not necessarily hear a case just because these rules of personal jurisdiction are satisfied. In addition to personal jurisdiction, the court must also have subject matter jurisdiction to determine the case. Subject matter jurisdiction is discussed in Chapter 3. Further, a court may decline to exercise jurisdiction in a multi-state case even though it has both personal and subject matter jurisdiction. This is discussed in Chapter 4. And while, under its own law, a court may have jurisdiction, and may exercise that jurisdiction, in a multi-state case it is possible that the forum court’s judgment has to be enforced in another legal system. If an Australian judgment has to be enforced outside the forum, the effect of the judgment depends on that other legal system’s 1. 2.

Tyler v Judges of the Court of Registration 55 NE 812 at 814 (1900). Subsequently, in the notes in this chapter, references to the following Rules will be to jurisdiction only: Federal Court Rules 2011 (Cth); High Court Rules 2004 (Cth); Court Procedures Rules 2006 (ACT); Uniform Civil Procedure Rules 2005 (NSW); Supreme Court Rules 1987 (NT); Uniform Civil Procedure Rules 1999 (Qld); Supreme Court Civil Rules 2006 (SA); Supreme Court Rules 2000 (Tas); Supreme Court (General Civil Procedure) Rules 2015 (Vic); Supreme Court Rules 1971 (WA).

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Private International Law in Australia

rules relating to foreign judgments. The effect of an Australian judgment in a foreign legal system depends on the private international law of that foreign country. It is the foreign private international law that has to be consulted before a prediction can be made whether, in a multi-state case, the exercise of jurisdiction by an Australian court is likely to lead to a judgment that can be enforced internationally. The grounds on which the judgment of a foreign or interstate court can be enforced in Australian courts are considered in Chapter 5.

Personal jurisdiction at common law 2.3  Australian courts will be jurisdictionally competent if they have both subject matter jurisdiction over the particular claims and defences, and personal jurisdiction over the parties to the dispute. Historically, the law has been more concerned with personal jurisdiction than with subject matter jurisdiction.3 In terms of subject matter jurisdiction, the superior courts of the states and territories have general common law and equitable jurisdiction. The Federal and Family Courts’ subject matter jurisdiction is limited to those matters granted by statute. These prima facie limitations may be subject to the accrued jurisdiction of the Australian courts. The parties to the dispute cannot invest a court with jurisdiction that it otherwise lacks. There are a number of specific limitations to the courts’ subject matter jurisdiction which only arise in international disputes, and which are discussed in Chapter 3. 2.4  In Australian law, the law of personal jurisdiction principally concerns the amenability of the defendant to service of process, which is taken to establish the courts’ jurisdictional competency.4 The plaintiff ’s action in commencing proceedings is treated as a submission to the jurisdiction, including to any related cross- and counter-claims that the defendant may raise.5 2.5  It is often said that there are only two grounds of personal jurisdiction at common law: the defendant is present in the forum at the time of service; and the defendant has submitted to the jurisdiction of the forum court.6 Otherwise, an Australian court only has jurisdiction over individuals outside its own territorial limits where an extraterritorial jurisdiction has been validly conferred on the court by statute.7

Presence 2.6  The basic rule by which a court’s jurisdiction is established at common law is that the defendant must be amenable to the court’s initiating process, which in most personal actions is a writ of summons, in some Australian jurisdictions called a ‘claim’.8 Under English common law, the King’s writ originally only ran within the territorial limits of the 3. 4. 5. 6. 7. 8.

Laurie v Carroll (1958) 98 CLR 310 at 322; cf Flaherty v Girgis (1987) 162 CLR 574 at 598. Laurie v Carroll (1958) 98 CLR 310 at 323–4. National Commercial Bank v  Wimborne (1979) 11 NSWLR 156 at 174; Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223 at 232–3; Nudd v Taylor [2000] QSC 344. For criticism, see A Dickinson, ‘Keeping Up Appearances: The Development of Adjudicatory Jurisdiction in the English Courts’ (2016) 86 British Yearbook of International Law 6. Mercedes Benz AG v Leiduck [1996] AC 284 at 297. John Russell and Co Ltd v Cayzer, Irvine and Co Ltd [1916] 2 AC 298 at 302.

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Personal Jurisdiction

2.8

kingdom, and so presence in England at the time of service was required before a person was brought under the court’s jurisdiction. In Australia, this means that a Supreme Court will have power to hear and determine an action when the defendant is physically present in the relevant state or territory at the time of service,9 and that the Federal Court and the High Court (in its original jurisdiction) will have power to hear and determine an action when the defendant is physically present in Australia at the time of service.10 The rule begs three questions — when, for how long and for what purpose must the defendant be present in the forum if jurisdiction is to be properly established on this basis? 2.7  Legal proceedings are commenced by the plaintiff (or applicant), although for the most part they are commenced by lawyers on the plaintiff ’s behalf. The plaintiff prepares the ‘initiating process’ (a writ, application, claim, originating summons, motion or petition) and has that document filed and checked (for formalities) in the court registry. If the initiating process is in order, the court registry ‘issues’ it. The plaintiff must then arrange for the initiating process to be ‘served’ on the defendant (or respondent). This is generally achieved by handing the initiating process to the defendant in person or, for a corporate defendant, delivering it to the corporation’s office. At common law, a plaintiff ’s right to a court’s jurisdiction can depend on where the defendant was when the initiating process was issued or served. There is no jurisdiction over a person who has been in the territory of the forum, but who left it before initiating process was issued. Laurie v Carroll  11 involved a contractual dispute between Laurie, a theatrical agent in London, and Carroll, a theatrical entrepreneur in Melbourne, over profits arising from Dame Margot Fonteyn’s 1957 Australian tour. Laurie was in Victoria between 11 and 13 June 1957 for Dame Margot’s Melbourne performances, and then travelled to Sydney. The writ in the action issued out of the Supreme Court of Victoria on 14 June. Laurie had been involved in negotiations to settle the dispute, and was aware that Carroll might sue. He left Australia on 20 June, without ever having been served with the writ. Carroll applied on 21 June for an order allowing substituted service of the writ on Laurie’s solicitors in Melbourne. Herring CJ made the order, but Laurie successfully appealed to the High Court to have the order set aside. Laurie had left Victoria one day before the writ was issued, and was therefore outside the jurisdiction of that state’s Supreme Court. 2.8  The High Court’s judgment in Laurie v Carroll also included useful dicta on the point at which a court would establish jurisdiction over a potential defendant. The basic principle on which jurisdiction rests, according to Dixon CJ and Williams and Webb JJ, is that, at the issue of the writ, the defendant ‘may be regarded as falling under the command of the writ as an exercise of jurisdiction’. However, their Honours added that it was the service of the writ which perfected the defendant’s duty to obey its command to appear before the court.12 So, jurisdiction is established when the defendant is served within the forum, even if the defendant subsequently leaves.13 Conversely, jurisdiction is not generally established over a person who is in the forum at the time initiating process is issued but who leaves 9. 10. 11. 12. 13.

Hiralal v Hiralal [2013] NSWSC 984 at [71]. The jurisdiction of the Family Courts is regulated differently: see 14.4–14.9. (1958) 98 CLR 310. At 328. Razelos v Razelos (No 2) [1969] 3 All ER 929.

29

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Private International Law in Australia

before it can be served. In these circumstances, the court in Laurie v Carroll recognised an exception: a person who left the place after initiating process was issued and who either knew that process had been issued or who left to evade service of process will be regarded as within the jurisdiction of the court.15 Here, the court may order substituted service on the defendant as physical service of initiating process has failed. This understanding of Laurie v Carroll was accepted by the defendant in Joye v Sheahan.16 There, the Full Court of the Federal Court held that there was jurisdiction in proceedings where the defendant was in Australia at the time a summons was issued, but had left Australia before being served but while knowing of the issue of the summons. 14

2.9  The basic principle is therefore that jurisdiction is established when the defendant is served within the territorial limits of the forum court. It does not matter that the defendant’s presence there is temporary.17 Even if the defendant is merely in transit through the forum territory, if served with a forum writ the forum courts would seem to have jurisdiction. For this reason, it is known as ‘transit’ or ‘tag’ or ‘gotcha!’ jurisdiction. Indeed, it was held in Grace v Macarthur18 by a United States district court in Arkansas that initiating process was validly served on the defendant in an aircraft when, in the course of a flight between Tennessee and Texas, it passed through Arkansas airspace. Grace v  Macarthur is not necessarily good authority in some parts of the United States, where more substantial contacts with the state are required before jurisdiction is properly established.19 However, in other states, transit jurisdiction is regarded as valid.20 In Australia, although Grace v Macarthur is compatible with the stronger principles of territoriality that the High Court accepted in Laurie v Carroll, it seems unlikely that jurisdiction would be established if the defendant were only in the forum’s airspace at the time initiating process was issued.21 2.10  In general, the purpose for which the defendant is inside the territorial borders of the forum is irrelevant to the question of the forum court’s jurisdiction. There is an established exception to this general principle if the plaintiff tricked, fraudulently enticed or physically coerced the defendant inside the borders of the forum territory in order to have 14. 15. 16. 17. 18. 19. 20.

21.

Andressen v Bendigo and Adelaide Bank Ltd [2016] SASC 111. Leave to appeal from this decision has been granted: Andressen v Bendigo and Adelaide Bank Ltd (No 2) [2017] SASC 25. (1958) 98 CLR 310 at 328; Mobil Oil Australia Pty Ltd v State of Victoria (2002) 211 CLR 1 at 23, 36; [2002] HCA 27. (1996) 62 FCR 417 at 421–2. Colt Industries Inc v Sarlie [1966] 1 All ER 673; Maharanee Baroda v Wildenstein [1972] 2 QB 283; Mobil Oil Australia Pty Ltd v State of Victoria (2002) 211 CLR 1 at 23, 36; [2002] HCA 27. 170 F Supp 442 (1959). Nehemiah v Athletics Congress of the USA 765 F 2d 42 (1985); Harold M Pitman Co v Typecraft Stoneware Ltd 626 F Supp 305 (1986). Burnham v Superior Court of California 495 US 604 (1990); Cariaga v Eighth Judicial District Court 762 P 2d 886 (1988); Aluminal Industries Inc v Newtown Commercial Associates 89 FRD 326 (1980). The US Supreme Court has significantly narrowed the scope of general jurisdiction in a series of recent cases and it has been argued that transit jurisdiction as endorsed in Burnham ‘is completely inconsistent with the solicitude expressed for general defendants in Goodyear and Daimler’: J W Stempel, ‘The Irrepressible Myth of Burnham and Its Increasing Indefensibility after Goodyear and Daimler’ (2015) 15 Nevada Law Journal 1203 at 1210. This pattern of narrowing the scope of general jurisdiction has continued with the Supreme Court’s decision in Bristol-Myers Squibb Co v Superior Court of California, San Francisco County 582 US __ (2017). Joye v Sheahan (1996) 62 FCR 417 at 421.

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2.12

the defendant served. This exception is based on the court’s inherent power to prevent the plaintiff abusing the process of the court. However, it is in only the most extreme cases that the exception is likely to upset the court’s jurisdiction. For example, the exception will not be admitted when the defendant is brought inside the forum’s borders through extradition proceedings,23 or in obedience to a subpoena,24 or where service of the writ was not the only reason why the plaintiff invited the defendant into the forum.25 In Perrett v Robinson,26 the claim was raised that the plaintiff and Robinson, the first defendant, conspired to defraud FAI Insurance, the second defendant, and that service of the writ on Robinson should be set aside. Robinson had caused injury to the plaintiff in a motor vehicle accident in the Northern Territory, where damages for future economic loss were not recoverable. The plaintiff therefore sued in Queensland where full common law damages could be awarded. He asked Robinson to travel into that state, and there accept service of the writ. Robinson willingly complied, as any damages award would ultimately be borne by the insurer, FAI. In the Full Court of the Supreme Court of Queensland, FAI’s argument against jurisdiction was rejected on the ground that no fraud had been committed. To Connolly J, the company could not have been defrauded since, under the contract of insurance, it had agreed to bear liability for any damages awarded in Queensland. McPherson J held that, in any event, even if FAI were the real defendant to the action it had a presence in the state as it conducted business there, and so it was within the jurisdiction of the Supreme Court. 22

2.11  Similar principles apply in personal actions against a company. The company must have some presence inside the forum’s territorial bounds to be properly subject to the jurisdiction of the forum court. However, as a company’s separate legal identity is a legally constructed fiction, it naturally does not have a tangible presence anywhere. So, at common law a company is considered to be present in a place and within the common law jurisdiction of its courts if it carries on business there. In National Commercial Bank v Wimborne,27 Holland J identified three criteria that tend to establish that a company is carrying on a business in the forum. These are: • the company is represented in the forum by an agent who has authority to make binding contracts with persons in the place; • the business is conducted at some fixed and definite place in the forum; and • the business has been conducted in the forum for a sufficiently substantial period. The court has no jurisdiction over a company which terminates its business in the forum before being served with initiating process in the action.28 2.12  Federal legislation extends the common law rules by ensuring that every company conducting business in Australia is amenable to the jurisdiction of all federal, state and territory courts, even if the company does not conduct business in the forum state or 22. 23. 24. 25. 26. 27. 28.

Stein v Valkenhuysen (1858) EB and E 65; 120 ER 431; Laurie v Carroll (1958) 98 CLR 310 at 331. John Sanderson and Co (NSW) Pty Ltd v Giddings [1976] VR 421. Baldry v Jackson [1976] 1 NSWLR 19. Watkins v North American Land and Timber Co (Ltd) (1904) 20 TLR 534. [1985] 1 Qd R 83. (1979) 11 NSWLR 156 at 165. Queensland v Property Nominees Pty Ltd (1982) 6 ACLR 739 at 745–6.

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territory. The Corporations Act 2001 (Cth) requires any foreign company intending to carry on business in Australia to be registered with the Australian Securities and Investments Commission, and to nominate a registered office and a local agent in Australia.29 Any local or foreign company can be served by leaving the initiating process at its registered office or, for a foreign company, with its local agent, or by sending it to the registered office or local agent by post.30 Although the Corporations Act is federal legislation, the company must still nominate a state or territory for registration.31 However, even if the company is registered in a different state or territory to the forum it will still be amenable to the initiating process of forum courts served in accordance with the provisions of the Service and Execution of Process Act 1992 (Cth).32

Submission 2.13  The second general means by which, at common law, the court has jurisdiction over a person is by that person’s consent or voluntary submission to the court’s jurisdiction. There are two particular means by which this submission might be established: authorising lawyers to accept service within the forum; and conduct inconsistent with a protest against jurisdiction.

Instructing lawyers to accept service 2.14  The person who knows that litigation is pending may instruct a lawyer to accept service of initiating process on their behalf. A foreign party may include a provision in a contract which authorises a lawyer within the jurisdiction to accept service on its behalf, which is called a service of suit clause. Jurisdiction is established once the lawyer is served. The rules of all superior courts in Australia provide for this mode of service.33

Submission by conduct 2.15  A party may be taken to have submitted to the jurisdiction if its conduct is inconsistent with a protest against the jurisdiction. The clearest example is the entry of an unconditional appearance in response to the plaintiff ’s service of initiating process, in those jurisdictions which allow the defendant to enter an unconditional appearance.34 A defendant that does not intend to submit to the court’s jurisdiction generally has two alternative courses. First, the defendant may refuse to enter an appearance. In New South Wales, this is the only course open to a person served who denies the Supreme Court’s jurisdiction, but the rules provide that the defendant may apply to have service set aside without having entered an appearance.35 Second, in all jurisdictions except the Federal Court, New South Wales and 29. 30. 31. 32. 33. 34. 35.

Corporations Act 2001 (Cth) s 601CD. Corporations Act 2001 (Cth) s 109. Corporations Act 2001 (Cth) s 119A. Service and Execution of Process Act 1992 (Cth) ss 9, 15; see 2.24–2.27. FCt r 10.22; HCt r 9.01.1(a); ACT r 6464; NSW r 10.13; NT r 6.08; Qld r 115; SA r 67(1)(c); Tas r 134; Vic r 6.09; WA O 9 r 1(2). ACT r 1000; NSW r 6.9; NT r 8; Qld rr 135–137, 144(4); SA r 92; Tas r 154; Vic r 8.03; WA O 12. See Re Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104 at [16]. NSW rr 11.4, 12.11.

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South Australia, the defendant may enter a conditional appearance, by which that person may challenge the plaintiff ’s assertion of jurisdiction.36 In South Australia, it is possible to enter an appearance and then challenge jurisdiction, because the rules provide that entry of an appearance is not deemed to be a submission to the jurisdiction of the Supreme Court.37 In none of these cases can submission to jurisdiction be inferred.38 2.16  A defendant who actively challenges the jurisdiction of the court must act consistently with a protest against jurisdiction, because a tacit concession of the court’s right to hear and determine the merits of the plaintiff ’s claim will be taken as submission to jurisdiction. The test is whether the defendant has by its conduct waived its right to challenge jurisdiction. In National Commercial Bank v Wimborne, Holland J stated that in order to establish such a waiver, ‘the facts must show a voluntary act unequivocally evincing an intention to abandon or not assert a right’.39 This is always a question of fact, and if the defendant consistently maintains its objection to jurisdiction, it will not be taken as having submitted even if it makes other applications which go beyond a protest to the jurisdiction. In Laurie v Carroll, the primary judge had granted an order for substituted service and an interim injunction. The foreign defendant sought to have both the order and the injunction discharged, and the plaintiff argued that the application to have the injunction discharged should be treated as a voluntary submission or a waiver of the right to contest jurisdiction. The High Court held that the defendant had neither submitted nor waived his objection to jurisdiction because the application to have the injunction discharged was ‘coupled with an objection to the jurisdiction’.40 The defendant may be taken to have submitted to the jurisdiction where they agreed to allow the substantive claim to be heard;41 where the defendant’s lawyer made oral submissions on the merits;42 where the defendant counterclaimed on a ground related to the plaintiff ’s claim;43 where the defendant consented to interlocutory orders in the cause;44 where the defendant argued against the extension of the limitation period applicable to the claim;45 where the defendant produces documents in response to a subpoena;46 or where the defendant applied for an order for security for costs.47 There are, nevertheless, some

36. 37. 38. 39. 40. 41. 42.

43.

44. 45. 46. 47.

HCt r 23.03; ACT r 111; NT r 8.08; Qld r 144; Tas r 168; Vic r 8.08; WA O 12 r 6; see, for example, Mutch v Dalley [1923] St R Qd 138; Safran v Chani (1969) 14 FLR 128. SA r 92(3)(a). Re Dulles’ Settlement (No 2); Dulles v Vidler [1951] Ch 842; [1951] 2 All ER 69. (1979) 11 NSWLR 156 at 176. (1958) 98 CLR 310, 335. Rimini Ltd v Manning Management and Marketing Pty Ltd [2003] 3 NZLR 22 at 30. Boyle v Sacker (1888) 39 Ch D 249; Re Dulles’ Settlement (No 2) [1951] Ch 842, 847, cited with approval in National Commercial Bank v Wimborne (1979) 11 NSWLR 156, 177, and applied in City of Swan v McGrawHill Companies, Inc (2014) 99 ACSR 280; [2014] FCA 442 at [117]. National Commercial Bank v  Wimborne (1979) 11 NSWLR 156 at 174; Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223; Drill-Tec GmbH Grossbohr-und-Umwelttechnik v Campbell [2002] NSWSC 1173 at [64]. Esal (Commodities) Ltd v Pujara [1989] 2 Lloyd’s Rep 479. Portelli v Seltsam Ltd [1988] VR 377. Walker v Newmont Australia Ltd [2010] FCA 298. Lhoneux, Limon & Co v Hong Kong & Shanghai Banking Corp (1886) 33 Ch D 446; cf White v Hardwick (1922) 23 SR (NSW) 6.

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exceptions to the general principle.48 The most important relates to applications that the action should be stayed on the ground of forum non conveniens: that is, that the court is a clearly inappropriate forum for the determination of the dispute. The application for a stay proceeds on the assumption that the court has jurisdiction, but the defendant argues that in the exercise of its discretion the court should decline that jurisdiction. In Williams and Glyn’s Bank Plc v Astro Dinamico Cia Naviera SA,49 the House of Lords held that, when coupled with an actual denial of jurisdiction, an application for a stay on the alternative ground of forum non conveniens did not constitute submission to the jurisdiction of the English court.50 It is probably not a submission to the court’s jurisdiction to make requests for further and better particulars of the plaintiff ’s claim, when they are not filed in the court or the subject of orders it makes.51

Personal jurisdiction in interstate cases 2.17  There is now an extensive scheme of statute law enabling all courts in Australia to hear and determine interstate cases, by which is meant cases involving people or circumstances having contacts with more than one state or territory of Australia. The Federal Court and the High Court (in its original jurisdiction) naturally have personal jurisdiction over any person present in Australia, and a plaintiff in one state or territory can therefore have a person in another state or territory served by initiating process issued out of either court. However, the subject matter must still be such as is properly raised in a federal jurisdiction if either court is to have power to determine the claim. Unlike the position for service of process issued out of the federal courts, in an interstate case, if the forum is a state or territory court, service of initiating process outside the forum will be required, and therefore in most cases recourse must be had to the statute law that enables extraterritorial service within Australia.

Diversity jurisdiction 2.18  The High Court of Australia has original jurisdiction in a small number of matters that have a specifically federal dimension. In terms of personal actions, the most important is the ‘diversity jurisdiction’ granted by s 75 of the Australian Constitution. In particular, s 75(iv) provides that the High Court has original jurisdiction in ‘all matters … between residents of different States’. This is modelled on a provision in the Judiciary Act 1789 (US), although in the United States, lower federal courts exercise a much more extensive diversity jurisdiction than is available in the High Court of Australia. Since the High Court’s diversity jurisdiction is guaranteed by the Constitution, the Federal Parliament has no power to limit it. However, it is hardly appropriate that parties have the right to demand a trial in the nation’s highest appellate court simply because they reside in different states. The High Court itself has 48. 49. 50. 51.

For example, Laurie v Carroll (1958) 98 CLR 310; Zwillinger v Schulof [1963] VR 407. [1984] 1 All ER 760. Cf Astro Exito Navegacion SA v Southland Enterprise Co Ltd (No 2) (The Messiniaki Tolmi) [1982] QB 1248; Finnish Marine Insurance Co Ltd v Protective National Insurance Co [1990] 1 QB 1078. Williams v The Society of Lloyd’s [1994] 1 VR 274 at 294.

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therefore narrowed the actual exercise of its diversity jurisdiction by restrictive interpretation of s 75(iv), and has statutory powers to remit diversity cases to federal, state and territory trial courts. 2.19  The High Court has held that, to establish diversity jurisdiction, the plaintiff must prove that the parties are residents of different states at the time the action is brought.52 Therefore, the jurisdiction is not established when the parties have been residents of different states, but at the time initiating process is issued they both live in the same state or one party lives in another country.53 Thus, the critical issue is the parties’ residence, and it is here that the High Court has confined the jurisdiction to almost the narrowest grounds possible. In Australasian Temperance and General Mutual Life Assurance Society v Howe,54 Isaacs J held that a person can be considered resident in a particular state if their residential connection with the state is such that the person is identified with that state as opposed to all other states. For purposes of diversity jurisdiction, a person can therefore only be a resident of one state. So long as the parties are identified with different states to this extent, the length of residence in each state is irrelevant.55 Much potential litigation before the High Court under s  75(iv) was effectively excluded by the court’s ruling in Howe that a ‘resident’ must be a natural person. In consequence, there is no right to bring a matter before the High Court where either party to the dispute is a corporation, or to join a third party which is a corporation.56 But the court has made some concession to substance over form in recognising the right to diversity jurisdiction in actions claiming relief against the resident of another state by prerogative writ, even though in such actions the Crown is formally the prosecuting party and is not considered a resident of a different state.57 2.20  There is no decision suggesting that diversity jurisdiction exists where one party is a resident of a federal territory or where both parties are resident in different federal territories. Even if such an action is within the spirit of the High Court’s diversity jurisdiction, it is not technically embraced by s  75(iv). The High Court’s consistently narrow approach to the provision suggests that it would most likely deny that it had original jurisdiction in cases where at least one party was a resident of a territory. 2.21  The question arises as to what law the High Court is to apply when it actually does exercise its diversity jurisdiction. Obviously, any relevant federal statutes will be applicable. However, diversity jurisdiction more frequently involves private litigation which is regulated by state or territory law. In these cases, the applicable law is determined by ss 79 and 80 of the Judiciary Act 1903 (Cth), which apply to the High Court when it is exercising any original jurisdiction.58 These provisions require the High Court to apply the laws of the state or territory in which it is sitting, including those laws relating to procedure, evidence and the competency of witnesses. Importantly, they also include that state’s or territory’s private 52. 53. 54. 55. 56. 57. 58.

Dahms v Brandsch (1911) 13 CLR 336. Cf Watson & Godfrey v Cameron (1928) 40 CLR 446; Gardner v Wallace (1995) 184 CLR 95 at 97. (1922) 31 CLR 290 at 324. R v Oregan; Ex parte Oregan (1957) 97 CLR 323. Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22; 62 ALR 1; Rochford v Dayes (1989) 84 ALR 405. R v Macdonald; Ex parte Macdonald (1953) 88 CLR 197. Musgrave v Commonwealth (1937) 57 CLR 514 at 532.

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international law. There seems little doubt that these provisions can lead to forum shopping within the High Court. The opportunity might arise, for example, in an action between a resident of one state where the limitation period is yet to expire and a resident of a second state where it has expired. The plaintiff might be able to escape the risk of having the action statute-barred by commencing proceedings in the High Court’s registry in the first state, as ss 79 and 80 require the court to apply the first state’s law and its longer limitation period.59 But, if the case is such that choice of law rules require a court in the first state to apply the law of the second state as the governing law, even in diversity jurisdiction the High Court will have to apply the limitation period of the second state.60 2.22  The High Court has a general power to remit matters to other courts, and this is the primary means it uses to avoid trying cases in the exercise of its diversity jurisdiction. Section 44 of the Judiciary Act 1903 (Cth) enables a remission to be made on the application of either of the parties or on the court’s own motion, to any federal, state or territory court that has jurisdiction with respect to the subject matter and the parties. In effect, these limitations only mean that the High Court must remit to a court that has jurisdiction in the same kind of action as that being remitted. Under s 44, so long as the High Court exercises the power of remission properly, the remission itself is the source of the lower court’s jurisdiction. There is no other need for the lower court to have had personal jurisdiction over the parties at common law or on some other statutory ground.61 2.23  Though broad, the power to remit is limited by some basic principles. In the first place, the remission is not to change the rights of the parties. The matter can therefore only be remitted to a court in a state or territory which would recognise the parties’ rights as they stand in the High Court: that is, before the remission is made.62 For example, the plaintiff in Gardner v Wallace63 hoped to have the matter remitted by the High Court — sitting in Melbourne — to a Queensland court. The action related to a personal injury he suffered on the Gold Coast, and it was arguable that in Queensland no limitation period was applicable.64 However, Dawson J held that the law of Victoria would apply in the action brought in the High Court, and thought that a remission to Queensland was unlikely as it would alter the law applicable to the case. The decision was made in a conscious attempt to discourage the plaintiff ’s forum shopping.65 Second, where the remission can be made to more than one court without changing the rights of the parties, it is made to the most appropriate court. The judgment about appropriateness is made by reference to considerations of convenience, such as the place where the parties to the action or the relevant witnesses happen to reside.66

59. 60. 61. 62. 63. 64. 65. 66.

Cf Pedersen v Young (1964) 110 CLR 162; Gardner v Wallace (1995) 184 CLR 95. See 7.47–7.49. Johnstone v Commonwealth (1979) 143 CLR 398 at 408; Weber v Aidone (1981) 36 ALR 345. State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 154 CLR 579 at 586. (1995) 184 CLR 95. Pedersen v Young (1964) 110 CLR 162; Fielding v Doran (1984) 60 ALR 342. Gardner v Wallace (1995) 184 CLR 95 at 100. Guzowski v Cook (1981) 149 CLR 128; Weber v Aidone (1981) 36 ALR 345.

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Service and Execution of Process Act 1992 (Cth) 2.24  The main source of jurisdiction in intra-Australian cases is the Service and Execution of Process Act 1992 (Cth). This important statute completed more than a century of reforms by which provision for the service of initiating process throughout Australia was simplified and liberalised. The first experiment in this sphere was the Federal Council of Australasia’s Australasian Civil Process Act 1886, which allowed a writ issued out of a Supreme Court in one participating colony to be served in another participating colony. The action had to be based on one of the grounds of subject matter jurisdiction described in the Australasian Civil Process Act, which were modelled on the grounds for extraterritorial service outlined in the Common Law Procedure Act 1852 (UK) and its progeny. Thus, for example, the action had to relate to a contract made in the colony, a tort occurring in the colony and so on. The Australasian Civil Process Act potentially included Fiji and New Zealand as participating colonies, but the Federal Council was generally handicapped by New South Wales’ refusal to participate and South Australia’s participation for only a short period. The council’s powers in respect of the service of process were reproduced in the Australian Constitution, and the Australasian Civil Process Act provided the framework for the Service and Execution of Process Act 1901 (Cth). 2.25  The Act of 1901 therefore only secured jurisdiction in an interstate case when the plaintiff could prove that the action could be based on one of the grounds of jurisdiction which required a relevant connection with the state or territory. These connections were of the same kind as the grounds of jurisdiction still found in the state and territory rules of court.67 Much of the case law interpreting the rules of court was therefore also relevant for interpreting the Service and Execution of Process Act 1901. Indeed, it was open to a plaintiff to justify service of a defendant in another state or territory on the basis of the Act of 1901, or the rules of court, or both.68 The Act of 1901 allowed process issued out of any state or territory ‘Court of Record’ to be served in another state or territory. It was not necessary to obtain the leave of the court to serve interstate, and if the defendant entered an appearance, jurisdiction was established. However, if the defendant failed to appear the plaintiff had to prove that the action was based on one of the grounds of subject matter jurisdiction set out in s 11 of the Act.69 Thus, the action had to relate to a contract made in the state or territory, a tort occurring in the state or territory and so on. In 1987, the Australian Law Reform Commission recommended the removal of any requirement that there was a relationship between the subject matter of the action and the forum state or territory, so long as some procedure was available to determine the most appropriate forum for trial of the action.70 This recommendation eventually led to the enactment of the 1992 Act. 2.26  The Service and Execution of Process Act 1992 governs the interstate service of any initiating process issued out of a state or territory court. It applies to all superior and inferior

67. 68. 69. 70.

See below 2.48 ff. Flaherty v Girgis (1987) 162 CLR 574. Luke v Mayoh (1921) 29 CLR 435 at 439. Australian Law Reform Commission, Service and Execution of Process, Report No 40, Canberra, AGPS, 1987, pp 84–5.

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tribunals having the status of a court under state or territory law.71 It provides that ‘initiating process’ issued out of any state or territory court can be served anywhere in Australia, and is to be served as the rules of the court of issue require.72 That initiating process must be accompanied by certain notices prescribed in the Act, which advise the defendant of their rights as to jurisdiction and to contest the action.73 The plaintiff ’s failure to include such a notice has been held to be a mere irregularity that can be waived by the defendant, as in the case where the defendant contests the merits of the claim.74 Process served interstate in accordance with the legislation takes effect as if it had been served in the state or territory of the court of issue.75 The defendant is also to enter an appearance to the initiating process as the rules of the court of issue require,76 and unless the plaintiff obtains an abridgment of the period in which the defendant must enter an appearance the defendant must do so within 21 days.77 Further, if the defendant wishes to challenge the jurisdiction of the court of issue the defendant can only do so in accordance with that court’s rules.78 2.27  This simple regime effectively extends the personal jurisdiction of all state and territory courts to the whole of Australia and its external territories, and gives them all the right to compel the appearance of any person anywhere in the country or an external territory. The legal right to jurisdiction in any personal action served within Australia is therefore undoubted, though it should be reiterated that in all cases the courts have discretionary powers to decline the jurisdiction or, in the case of the Supreme Courts, to transfer such cases to another court.79 The Service and Execution of Process Act thereby renders other statutory provision for interstate service obsolete. In most interstate cases, the Service and Execution of Process Act probably rendered the extension of the Supreme Courts’ personal jurisdiction under the state and territory cross-vesting legislation superfluous, and possibly even invalid.80 There might possibly remain some cases where the cross-vesting legislation adds to the Supreme Courts’ jurisdiction, and others where it is important to know whether a court is exercising cross-vested jurisdiction or jurisdiction under the Service and Execution of Process Act.81

Cross-vested jurisdiction 2.28  The federal, state and territory parliaments have all passed Jurisdiction of Courts (Cross-vesting) Acts to resolve jurisdictional problems which had arisen between federal courts on the one hand, and state and territory Supreme Courts on the other.82 The cross-vesting 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82.

Service and Execution of Process Act 1992 (Cth) s 3. Service and Execution of Process Act 1992 (Cth) s 15. Service and Execution of Process Act 1992 (Cth) s 16. C and P Trading Pty Ltd v Roladuct Spiral Tubing Pty Ltd [1994] 2 Qd R 247 at 249. Service and Execution of Process Act 1992 (Cth) s 12. Service and Execution of Process Act 1992 (Cth) s 14. Service and Execution of Process Act 1992 (Cth) s 17. Service and Execution of Process Act 1992 (Cth) s 17. See 4.58–4.80. See 2.33. See 12.30–12.36. Jurisdiction of Courts (Cross-vesting) Act  1987 (Cth); Jurisdiction of Courts (Cross-vesting) Act  1993 (ACT); Jurisdiction of Courts (Cross-vesting) Act  1987 (NSW); Jurisdiction of Courts (Cross-vesting)

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scheme aims generally to close gaps which had developed between federal and Supreme Court jurisdictions, and to end conflicts between them. These objectives are stated in the preamble to the Cross-vesting Acts: … it is desirable … to establish a system of cross-vesting of jurisdiction between [federal, state and territory] courts, without detracting from the jurisdiction of any court …

To this end the scheme provides for the jurisdiction of most superior courts in Australia to be invested in almost every other,83 subject to a requirement that superior courts must transfer an action to another superior court in some cases.84 The Act also provides for the application of special choice of law rules in courts which are possibly exercising cross-vested jurisdiction.85 This section only considers the nature of the cross-vesting of jurisdiction effected by the scheme. 2.29  The original intention of the cross-vesting scheme was that all federal, state and territory superior courts would, for the most part, exchange jurisdictions: that is, that these jurisdictions would be cross-vested. This has not been the result, as it has been held that the two federal courts involved — the Federal Court of Australia and the Family Court of Australia — cannot receive the jurisdictions of the state Supreme Courts or probably, if given by territory legislation, those of the territory Supreme Courts. In Gould v Brown86 the High Court, although only by a technical majority of three judges (Brennan CJ and Toohey and Kirby JJ) to three (Gaudron, McHugh and Gummow JJ), affirmed a decision of the Full Court of the Federal Court that federal courts could validly receive state jurisdictions. The even division of the court on this point soon changed, and in Re Wakim; Ex parte McNally87 a new majority of six judges (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) to one (Kirby J) held that, because under the Constitution a federal court could be invested by the Commonwealth Parliament with federal jurisdiction, the Constitution carried a ‘negative implication’ that a federal court not be validly invested with a non-federal jurisdiction. As a result, the attempt to invest state jurisdictions in the federal courts under the cross-vesting legislation was invalid. Although it is less clear, it appears from the judgment of Gummow and Hayne JJ in Wakim that, when an attempt to invest territory jurisdictions in federal courts is made by territory legislation, this also is invalid.88 However, where territory jurisdiction is invested in federal courts by federal legislation, it is

83. 84. 85. 86. 87. 88.

Act (NT); Jurisdiction of Courts (Cross-vesting) Act  1987 (Qld); Jurisdiction of Courts (Cross-vesting) Act  1987 (SA);  Jurisdiction of Courts (Cross-vesting) Act  1987 (Tas); Jurisdiction of Courts (Crossvesting) Act 1987 (Vic); Jurisdiction of Courts (Cross-vesting) Act 1987 (WA). The federal Act deals with the jurisdiction of the federal courts, and the Supreme Courts of the external territories. References in this chapter are to the federal Act, and to the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), which is identical to the other state and territory legislation. Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4; Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 4. Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 5; Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 5. These provisions are discussed in detail at 4.59–4.74. Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 11; Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 11. (1998) 193 CLR 346. (1999) 198 CLR 511. At 594–6.

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perfectly valid. The ultimate outcome is that the federal jurisdictions of the Federal Court and Family Court of Australia are given to the state and territory Supreme Courts, but the jurisdictions of the state, Australian Capital Territory and Northern Territory Supreme Courts are not invested in the federal courts. 2.30  The courts participating in the cross-vesting scheme are the Federal Court, the Family Court of Australia, the Family Court of Western Australia and the Supreme Courts of all states and territories (including the external territories). As it stands after Wakim, the scheme provides for the following grants of jurisdiction: • Federal Court to Supreme Court: The original and appellate jurisdiction of the Federal Court of Australia is invested in the Supreme Court of the states and territories.89 The Federal Court’s jurisdiction in any matter arising under federal industrial relations laws and any matter arising under federal competition laws which relate to boycotts or the misuse of market power in a trans-Tasman market is excluded. This grant of jurisdiction resolves conflicts within cases which raise issues under both the Competition and Consumer Act 2010 (Cth) and, to the extent that it is within the accrued jurisdiction of federal courts, the general law of contract and tort, which, on occasions, had led the Federal Court to enjoin plaintiffs from proceeding in state Supreme Courts.90 • Family Court of Australia to Supreme Courts: The original and appellate jurisdiction of the Family Court of Australia is invested in the Supreme Court of the states and territories.91 This investiture is less significant, following the referral by the states of their jurisdiction concerning property disputes between de facto partners.92 • State and internal territory Supreme Courts to Supreme Court: The original and appellate jurisdiction of the Supreme Court of the states, the Australian Capital Territory and the Northern Territory in any ‘state matter’ is invested in the Supreme Court of the other states and territories.93 • State and internal territory Supreme Courts to Family Court of Western Australia: The original and appellate jurisdiction of the Supreme Court of the states, the Australian Capital Territory and the Northern Territory in any ‘state matter’ is invested in the Family Court of Western Australia.94 • External territory Supreme Courts to Federal Court: The original and appellate jurisdiction of the Supreme Court of the external territories is invested in the Federal Court of Australia.95 There is no provision in the federal cross-vesting legislation equivalent to those of the states and internal territories limiting the grant 89. 90.

91. 92. 93. 94. 95.

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4(1). For example, Denpro Pty Ltd v Centrepoint Freeholds Pty Ltd (1983) 48 ALR 39; Turelin Nominees v Dainford Ltd (1983) 47 ALR 326; Novasonic Corp Ltd v Hagenmeyer (A/Asia) BV (1983) 8 ACLR 303; cf Trade Practices Commission v Manfal Pty Ltd (1990) 21 FCR 230. Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4(1). For example, Commonwealth Powers (De Facto Relationships) Act 2003 (NSW), and legislation of the same name enacted by the other states between 2003 (Qld) and 2009 (SA). Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 4(3). Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 4(4). Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4(2).

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• • • •

2.31

to jurisdiction in ‘state (or territory) matters’, and therefore this grants to the Federal Court the federal jurisdiction of the external territory Supreme Courts. Also, the principle of Wakim does not affect this grant of jurisdiction as it is one given to federal courts by federal (and not territory) legislation. External territory Supreme Courts to Family Court of Australia: The original and appellate jurisdiction of the Supreme Court of the external territories is invested in the Family Court of Australia.96 External territory Supreme Courts to Supreme Courts: The original and appellate jurisdiction of the Supreme Court of the external territories is invested in the Supreme Court of the states and other territories.97 External territory Supreme Courts to Family Court of Western Australia: The original and appellate jurisdiction of the Supreme Court of the external territories is invested in the Family Court of Western Australia.98 Family Court of Western Australia to state and territory Supreme Courts: The original and appellate jurisdiction of the Family Court of Western Australia is invested in the state and territory Supreme Courts.99

The cross-vesting legislation provides expressly that each of the participating courts is able to exercise jurisdiction conferred on it by the cross-vesting scheme.100 From the above, it should be apparent that the scheme does not effect a complete cross-vesting of jurisdiction between all superior courts in Australia. The inability of the Federal Court and the Family Court of Australia to receive state and internal territory jurisdictions — as held in Wakim — is now the largest gap in the scheme. Second, there is no cross-vesting of jurisdiction between the Federal Court and the Family Court of Australia. Further, the scheme does not provide for the investment of any additional federal jurisdiction in the Federal Court, other than the federal jurisdiction of the external territory Supreme Courts.101 The Federal Court can only exercise federal jurisdiction in matters the Commonwealth Parliament has invested in the court directly.102 But as the grants referred to above show, it still resolves the most important problems of jurisdiction that the emergence of the federal courts had created. On the whole, the scheme seemed to operate effectively and efficiently. Wakim has not led to a reconsideration of the parts of the scheme that remain intact.103 2.31  The issue of importance in this section is to determine the meaning of the term ‘cross-vested’ jurisdiction. It is suggested that such jurisdiction refers only to ‘subject matter’ jurisdiction: that is, the power a court has to deal with a case of a particular kind. Personal jurisdiction, by contrast, is the power a court has over a person due to that person being Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4(2). Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4(2). Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ss 3(2), 4(2). Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) s 4(1)–(3). Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 9(2); Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 9. 101. Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4(2). 102. Kodak (Australasia) Pty Ltd v Commonwealth (1989) 98 ALR 424; Courtice v Australian Electoral Commission (1990) 95 ALR 297. 103. R Mortensen, ‘Autochthonous Essential: State Courts and a Cooperative National Scheme of Civil Jurisdiction’ (2004) 22 University of Tasmania Law Review 109 at 136–40. 96. 97. 98. 99. 100.

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served with the court’s initiating process in accordance with the court’s rules. The view that only subject matter jurisdiction is cross-vested was taken by Gummow J of the Federal Court in David Syme and Co Ltd (Rec and Mgr Appt’d) v Grey.104 2.32  David Syme concerned a claim for damages in the Supreme Court of the Australian Capital Territory. The plaintiff alleged defamation by the defendant newspaper company. The defendant had no presence in the territory, and was therefore served at its office in Melbourne. It challenged the court’s jurisdiction, and this challenge was upheld by a majority (Neaves and Gummow JJ; Higgins J dissenting) on appeal to the Full Court of the Federal Court. The plaintiff in David Syme argued that, under the cross-vesting scheme, the defendant could be served in Victoria without leave. Rejecting this argument, Gummow J listed four reasons why he thought personal jurisdiction had not been cross-vested: the scheme still adds significantly to the jurisdiction of the participating courts even if it is only construed as cross-vesting subject matter jurisdiction; there are ‘matters’ mentioned in the cross-vesting legislation that refer to the parties and the subject matter, suggesting a cross-vesting of subject matter jurisdiction; the parliaments cannot be presumed to have intended to add, after the (then) Service and Execution of Process Act 1901 (Cth) and the (then) rules of court, a third source of interstate jurisdiction without expressly stating so; and the cross-vesting of personal jurisdiction is anomalous. In relation to this last point, Gummow J thought that anomalies arose because the cross-vesting scheme would extend the personal jurisdiction of the Supreme Courts to places elsewhere in Australia, but not to places overseas. It also added nothing to the personal jurisdiction of the Federal and Family Courts, which already had jurisdiction over persons throughout Australia.105 2.33 Since David Syme was decided, the Service and Execution of Process Act  1992 (Cth) has been enacted, which extended the personal jurisdiction of the Supreme Courts throughout Australia and so rendered it strictly unnecessary to consider whether a state or territory Supreme Court may exercise the personal jurisdiction of another state or territory Supreme Court in an intranational dispute. Indeed, it is possible that the Service and Execution of Process Act partially renders provisions for service under the cross-vesting scheme invalid. The Service and Execution of Process Act relevantly states:106 … this Act applies to the exclusion of a law of a State [including a federal territory] with respect to: (a) the service … in another State of process of the relevant State that is process to which this Act applies.

This means that, where a person can be served under the Service and Execution of Process Act, that person cannot be served under a law of a state or territory,107 including the state or territory cross-vesting legislation. Given also the exhaustive operation of the Service and Execution of Process Act, it would appear that the rules providing for service under the 104. (1992) 115 ALR 247; see also BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [44]–[45] and [52] (Gummow and Hayne JJ); K Mason and J Crawford, ‘The Cross-Vesting Scheme’ (1988) 62 Australian Law Journal 328; cf Seymour-Smith v Electricity Trust of South Australia (1989) 17 NSWLR 648. 105. (1992) 115 ALR 247 at 274–5. 106. Service and Execution of Process Act 1992 (Cth) s 8(4). 107. Swanson v Harley (1995) 103 NTR 25 at 29; Citibank Ltd v Nobes (1993) 15 Qld Lawyer Reps 9.

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cross-vesting scheme are inoperative to the extent they provide for service under state or territory cross-vesting legislation.108 2.34  Of course, the above conclusion regarding intranational cases still leaves open the possibility that personal jurisdiction may be cross-vested in international disputes, where service outside Australia on a foreign defendant is involved. This is the view that was taken by the Harmonisation of Rules Committee of the Council of Chief Justices of Australia and New Zealand;109 consequently, the harmonised rules of court which have been adopted in four states110 refer to the existence of connections to Australia, rather than the relevant state. It is suggested that not only is this based on an incorrect interpretation of the crossvesting legislation, but it is inefficient for a Supreme Court to apply indirectly the rules for service abroad of another state or territory Supreme Court, and to rely on the cross-vesting legislation provisions in relation to transferring proceedings to determine which Australian court should hear proceedings.111 The reasoning of Gummow J in David Syme which rejects the conferral of such jurisdiction is again apposite here. 2.35  If cross-vesting is indeed limited to subject matter jurisdiction, in what circumstances can a court be said to be exercising such jurisdiction? The basic premise asserted here, in line with the views of Gummow J in David Syme and the authors Kelly and Crawford,112 is that the ordinary jurisdiction of the state and territory Supreme Courts and cross-vested jurisdiction cannot overlap; cross-vested jurisdiction only comes into operation when the rules of ordinary jurisdiction do not apply. Cross-vested jurisdiction is therefore a form of ‘supplementary’ jurisdiction. Consequently, it is suggested that it applies in the following situations. The first case is where a matter is transferred from one superior court to another under s  5 of the cross-vesting legislation. The second case is where a state or territory Supreme Court lacks power to adjudicate a particular matter. An example would be where the Supreme Court of Victoria has no power to determine questions of title or trespass to land in Queensland under the Moçambique rule.113 The effect of cross-vesting is to confer on the Supreme Court of Victoria all the jurisdiction of the Supreme Court of Queensland, which would include the power to determine the question of title or trespass to land in 108. See, for example, ACT r 3307; NT r 89.07(1); Qld r 55; Tas r 781(6). 109. According to Justice Perram, the convenor of the Harmonisation of Rules Committee, the sub-committee which drafted the rules agreed ‘that the reference within the paragraphs to a place should be to Australia and not to an individual State or Territory of whose Rules the rules form part. This is because State and Territory courts now have Australia wide jurisdiction pursuant to section 4 of the uniform Jurisdiction of Courts (Cross vesting) Acts.’: Letter of 15 October 2015 cited in A Dickinson, ‘In Absentia: Evolution and Reform of Australian Rules of Adjudicatory Jurisdiction’ in M Douglas et al, Commercial Issues in Private International Law: A Common Law Perspective (Hart, 2019 forthcoming), text to n 188. 110. The Australian Capital Territory has also adopted the harmonised rules. The relevant references in the Australian Capital Territory rules are to ‘the ACT’ and to ‘the territory’: ACT r 6502. At the time of writing this chapter in April 2018, four states had adopted the harmonised rules of court (New South Wales, South Australia, Tasmania and Victoria); in the relevant rules of all four states, the relevant reference was to Australia: NSW Sch 6; SA r 40A; Tas r 147A; Vic r 7.02. 111. Cf Justice Perram, cited in Dickinson, above n 109. 112. D Kelly and J Crawford, ‘Choice of Law under the Cross-Vesting Legislation’ (1988) 62 Australian Law Journal 589 at 593: ‘[T]he purpose of the cross-vesting scheme is to overcome only existing limits in the exercise of jurisdiction.’ 113. British South Africa Co v Companhia de Moçambique [1893] AC 602.

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Queensland. Indeed, one commentator115 has asserted that the effect of the cross-vesting scheme is to ‘pick up’ statutes such as the Jurisdiction of Courts (Foreign Land) Act 1989 (NSW) which have abolished the Moçambique rule for all cases, both intranational and foreign, and to make such legislation available to courts in other states and territories. Suppose, for example, the Supreme Court of Victoria had to determine a question of title or trespass to land in Indonesia. Such a claim would be barred by the Moçambique rule under the common law rules applicable in Victoria but, as a result of the cross-vesting scheme, the above New South Wales legislation could be imported into Victoria to ‘cure’ the deficit in subject matter jurisdiction. The Victorian court would then enjoy the subject matter jurisdiction of the Supreme Court of New South Wales and could adjudicate the issue. The correctness of this view was left open by the Victorian Court of Appeal in Schmidt v Won.116 A similar instance would be where legislation limits jurisdiction in relation to a matter to the courts of one state or territory only. For example, the NSW Trustee and Guardian Act  2009 (NSW) confers power only upon the Supreme Court of New South Wales  to appoint the New South Wales Trustee to manage a mentally incapable person’s estate. In such a case, the cross-vesting legislation gives power to the superior courts of another state or territory to exercise such jurisdiction.117 114

2.36  The more controversial situation where cross-vested jurisdiction arguably exists is where a plaintiff or defendant seeks to rely on a statute of another state or territory in circumstances where such legislation would not be ‘picked up’ by the choice of law rules of the forum. Suppose, for example, that a Victorian plaintiff sued a New South Wales defendant for breach of contract in the Supreme Court of Victoria in relation to a contract governed by Victorian law, and the defendant raised a counter-claim under the Contracts Review Act 1980 (NSW). Under common law choice of law rules, the New South Wales Act could not be admitted in Victoria if the matter fell within the scope of the choice of law clause and so would be outside the subject matter jurisdiction of the Victorian court. The effect of cross-vesting, however, is to give the Victorian court all of the subject matter jurisdiction of the Supreme Court of New South Wales  and, since the Act could be applied if the proceedings were heard in New South Wales, so too can the statute apply in Victoria. Such an interpretation of cross-vested jurisdiction is reinforced by s 11(1)(b) of the cross-vesting legislation, which provides that where a court is exercising cross-vested jurisdiction, and a matter arises under the written law of another state or territory, the court must apply the written and unwritten law of such state or territory. In the example above, s 11(1)(b) would give the Victorian court the power to apply the New South Wales Act ‘directly’, where such power did not exist before cross-vesting. Hence, the cross-vesting scheme creates a new 114. Starr-Diamond v  Diamond (No 3) [2013] NSWSC 351 at [6]. However, if the parties were residents of different states, the court would be exercising federal jurisdiction, in which case the court would not be exercising jurisdiction in a ‘State matter’ (per s 3 of the cross-vesting legislation) and the subject-matter jurisdiction of the original court could not be cross-vested under s  4 of the cross-vesting legislation: Uhlmann v Harris (No 2) [2018] QSC 28 at [10]–[11]. 115. J Davis, ‘The OK Tedi River and the Local Actions Rule: A Solution’ (1998) 72 Australian Law Journal 786. 116. [1998] 3 VR 435 at 447–8 (Ormiston JA, with whom Charles and Batt JJA agreed). 117. See, for example, Re DEF and the Protected Estates Act  1983 (2005) 192 FLR 92; [2005] NSWSC 534 at [27]–[29] (which related to the Protected Estates Act 1983 (NSW) s 13, which was repealed and replaced by the Trustee and Guardian Act 2009 (NSW) s 41).

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choice of law analysis by enabling a party to plead a statute of another state or territory even where it would not have been selected under common law choice of law rules. In this way, therefore, the subject matter jurisdiction of the state and territory courts is enlarged. It must be acknowledged, however, that this aspect of cross-vested jurisdiction has been generally ignored by courts and litigants. For this reason, and also for the anomalous consequences caused, it is suggested in Chapter 12118 that s 11(1)(b) should be repealed, to eliminate this aspect of cross-vested jurisdiction.119

Personal jurisdiction in international cases Jurisdiction over New Zealand defendants 2.37  In international cases where New Zealand courts or parties are involved, a separate regime applies.120 It resembles the Service and Execution of Process Act, on which it was based. The scheme has three aspects. First, it facilitates the service of process of Australian courts in New Zealand; this aspect is discussed in this chapter.121 Second, it provides exclusively for the circumstances in which a stay of proceedings may be granted by an Australian court, where Australian process has been served in New Zealand  and a New Zealand  court is the alternative forum. This aspect is addressed in Chapter  4. Third, it facilitates the registration of New Zealand judgments in Australia. This aspect of the scheme is discussed in Chapter 5. 2.38  The Trans-Tasman Proceedings Act 2010 permits the service of the initiating process of any Australian court or tribunal122 in New Zealand.123 It imposes no requirement of nexus, nor any requirement of leave to serve the defendant in New Zealand, nor of leave to proceed if the New Zealand defendant does not enter an appearance. There is no requirement of nexus between the jurisdiction in which proceedings are commenced and the parties or the subject matter of the dispute. This very expansive jurisdiction is, like the intra-Australian scheme, intended to be controlled by provisions of the legislation which permit proceedings to be stayed. Those provisions are discussed in Chapter 4.

Personal jurisdiction in international cases not involving New Zealand 2.39  There are many multi-state cases that have a close connection with the forum state but in which, at common law, the courts of the forum have no jurisdiction because the defendant is not present in the forum at the time of service. It is irrelevant at common law 118. See 12.36. 119. See, generally, R Garnett, ‘The Dominance of Uniformity of Outcome in Australian Choice of Law: Is It Time to Relax the Grip?’ (2013) 37 Australian Bar Review 192 at 211–12. 120. The scheme is contained in the Trans-Tasman Proceedings Act  2010 (Cth), which gives effect to the Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement done at Christchurch on 24 July 2008: [2013] ATS 32. 121. See 2.38. 122. The term ‘court’ is defined to mean all Australian federal, state and territory courts: Trans-Tasman Proceedings Act 2010 (Cth) s 4. 123. Trans-Tasman Proceedings Act 2010 (Cth) s 9(1).

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whether there is a connection between the forum and the subject matter of the dispute, such as that the claim relates to property in the forum state, or a tort that occurred in the state or caused damage to a business centred in the state, or even that the defendant is a local resident who fled before initiating process could be issued.124 Claims like these first became actionable in English courts by legislation, including the Common Law Procedure Act 1852 (UK). This gave the common law courts an ‘assumed’, ‘extraterritorial’ or ‘longarm’ jurisdiction in a range of actions connected with England. The legislation was copied in all rules of court in all the Australian colonies, and formed the basis for the provisions of the Service and Execution of Process Act 1901 (Cth). As seen, for the state and territory Supreme Courts, the rules of court also made provision for service of process outside the state or territory in actions having some connection with the state or territory. However, the Service and Execution of Process Act 1992 (Cth), which replaced the Act of 1901, is a generous grant of jurisdiction to these courts over persons anywhere in another state or territory, even where there is no connection with the forum state or territory.125 Except in New South Wales the rules of court provide only for service of initiating process outside Australia.126 In New South Wales, the rules provide for service of initiating process in another state or territory as well as outside Australia, referring to service under the Service and Execution of Process Act.127 The High Court Rules allow service ex iuris where this is allowed under the Federal Court Rules.128

Leave to serve 2.40  In the Federal Court, the Northern Territory and Western Australia, the rules provide that the leave of the court must be obtained before a person can be served outside Australia.129 In order to secure this leave, a plaintiff must show that the case is an appropriate one for service outside the country, and that the case is within one of the grounds of jurisdiction specified in the relevant rules of court.130 In the Federal Court and the Northern Territory, the plaintiff must also show that they have a ‘prima facie case for the relief claimed’, and in Western Australia it must be shown that the plaintiff has a ‘good cause of action’.131 In either case, because the application for leave to serve out is made at an early stage, this does not impose a significant obstacle. A prima facie case will be established ‘if, on the material

124. For example, Wilding v Bean [1891] 1 QB 100. 125. Swanson v Harley (1995) 103 NTR 25 at 29. 126. ACT r 6502; NSW r 11.4(1); NT r 7.01; Qld r 124(1); SA r 40(1); Tas r 147A; Vic r 7.02; WA O 10 r 1(1). These provisions do not apply to service in New Zealand: ACT Div 6.8.9 Note 3; NSW r 11.3; Qld Pt 7 Div 1 Note; SA r 40; Tas r 147(3); Vic r 7.01; WA O 10 r 1A(3A). 127. NSW r 10.3(3). 128. HCt r 9.07.1. 129. FCt r 10.43(1)(a); NT r 7.02(1)(a); WA O 10 r 1(1). In the Federal Court and the Northern Territory, if the court has not given leave prior to service being made, the plaintiff can apply for service to be confirmed, but must have a satisfactory explanation for failing to seek prior leave to serve out of the jurisdiction: FCt r 10.43(1)(b), (6), (7); NT r 7.02(1)(b), (5)(c). The rules in those two jurisdictions also provide that service is effective if the defendant waives any objection to service by filing an appearance: FCt r 10.43(1)(c); NT r 7.02(1)(c). 130. FCt r 10.43(4)(a), (b); NT r 7.02(2)(a), (b); WA O 11 r 4. 131. FCt r 10.43(4)(c); NT r 7.02(2)(c); WA O 10 r 4(1).

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before the court, inferences are open which, if translated into findings of fact, would support the relief claimed’.132 2.41  The application for leave to serve is made by the plaintiff ex parte and full and fair disclosure must be made.133 The plaintiff should also show that the defendant is unlikely to obtain a stay of the proceedings, on the basis that the parties agreed to litigate exclusively in a foreign court, or on the ground of forum non conveniens. Therefore, the plaintiff must show that there are strong grounds for non-enforcement of an exclusive foreign jurisdiction clause, or that the court is not a clearly inappropriate forum to determine the dispute.134 Similarly, the plaintiff must pre-empt other grounds on which the defendant might apply for a stay of proceedings: lis alibi pendens, or a forum clause providing for the dispute to be determined in another court.135 Leave will not be granted where it is evident that the plaintiff will not succeed at trial, either because the plaintiff is unlikely to make out the claim136 or because the defendant has a good defence.137 However, where the plaintiff claims to be able to serve outside Australia on a number of grounds of jurisdiction it is only necessary to show a prima facie case for the particular relief sought. It is not necessary that the plaintiff show a prima facie case for every cause of action pleaded.138 Since the granting of leave to serve allows the court to exercise an exorbitant jurisdiction, any doubt about the interpretation of the rules or the appropriateness of service in the particular case should be resolved in favour of the defendant.139 2.42  In the jurisdictions which have adopted the harmonised rules, in most cases service may be made outside the jurisdiction without the leave of court. If service outside Australia without leave is not authorised, the harmonised rules enable service to be made outside Australia with the court’s leave.140 The court may grant an application for leave to serve originating process outside Australia if three conditions are satisfied: the claim must have ‘a real and substantial connection’ with Australia or the forum; Australia or the forum must be ‘an appropriate forum’ for the trial; and ‘in all the circumstances the Court should assume jurisdiction’.141 132. Western Australia v Vetter Trittler Pty Ltd (in liq) (1991) 30 FCR 102 at 110; Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317; [2003] FCAFC 153 at [97]; Ho v Akai Pty Ltd (in liq) (2006) 247 FCR 205 at [10]. 133. The Hagen [1908] P 189 at 201; Eyre v  Nationwide News Pty Ltd [1967] NZLR 851; cf Hartwell Trent (Australia) Pty Ltd v Tefal Société Anonyme [1968] VR 3 at 8. 134. Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. 135. See 4.11–4.25 and 4.53–4.54. 136. Diamond v Bank of London and Montreal Ltd [1979] QB 333; Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1981] 2 Lloyd’s Rep 446 at 456–7; Chicago Bridge and Iron Constructors Pty Ltd v Sarvanidis (1986) 44 SASR 418 at 425; Morin v Bonhams & Brooks Ltd [2003] 2 All ER (Comm) 36 at 50–1. 137. The Brabo [1949] AC 326. 138. Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365 at 373. 139. The Hagen [1908] P 189 at 201; Stanley Kerr Holdings v Gibor Textile Enterprises Pty Ltd [1978] 2 NSWLR 372; Tricon Industries Pty Ltd v Abel Lemon and Co Pty Ltd [1988] 2 Qd R 464 at 471–2; Australian Insurance Brokers Ltd v Hudig Langeveldt Pty Ltd (No 2) (1991) 7 WAR 343; Saltram Wine Estates Pty Ltd v Independent Stave Co (1992) 57 SASR 156. 140. ACT r 6503; NSW r 11.5; SA r 40B; Tas r 147B; Vic r 7.03. 141. In the Australian Capital Territory, the requisite connection is to the Australian Capital Territory: r 6503(5). In the other jurisdictions, the required connection is to ‘Australia’: NSW r 11.5(5); SA r 40B(5); Tas r 147B(5); Vic r 7.03(5).

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Leave to proceed 2.43  In the High Court, the Australian Capital Territory, New South Wales, Queensland, South Australia, Tasmania and Victoria, service of initiating process outside Australia does not require the leave of the court. In all jurisdictions except Queensland, if the person served has not entered an appearance to the initiating process the plaintiff must apply for leave to proceed with the litigation.142 The court therefore has a discretion to refuse leave to proceed, even in cases that come within one of the specified grounds of jurisdiction permitting service out of the jurisdiction. The onus is placed on the plaintiff to show that, having regard to all the relevant circumstances, the case is an appropriate one for service outside the country. The High Court addressed the details of the procedure to follow in these cases in Agar v  Hyde.143 The plaintiffs claimed damages for injuries they suffered in scrums, when playing rugby in New South Wales. They had process served on the International Rugby Football Board (IRFB) in London, as well as various overseas Rugby Football Unions. The central allegation rested on the claim that, as the IRFB and other defendants were responsible for formulating the rules of rugby, and in particular the rules relating to the formation of scrums, they owed a duty of care to the plaintiffs and had been negligent in failing to monitor the safety of their rules relating to scrums. Leave to proceed against the IRFB and other defendants was sought in the Supreme Court of New South Wales but, ultimately, on appeal to the High Court, this leave was refused. The court held that it was not arguable that the defendants could have owed the plaintiffs a duty of care, and so the actions were ‘doomed to fail’.144 Importantly, the High Court indicated what procedure had to be followed when leave to proceed was being sought. Gaudron, McHugh, Gummow and Hayne JJ identified three major issues that the plaintiff had to address if jurisdiction was contested by the defendant. Their Honours noted that, for some of these issues, considerations of international comity and restraint in the exercise of jurisdiction had to be taken into account.145 The nature of the claim being alleged in the proceedings had to be based properly on one (or more) of the grounds of jurisdiction set out in the rules.146 The court here had to ask: ‘[I]s the claim a claim in which the plaintiff alleges that he has a cause of action which, according to those allegations, is’ within one of the grounds of jurisdiction set out in the rules?147 At this point, it is not necessary to argue the strength of the plaintiff ’s claim. All that is considered is the nature of the allegations, not ‘whether those allegations will be made good at trial’.148 The statement of claim itself will usually, though not always, be enough to show whether the plaintiff has addressed this issue. Agar v Hyde concerned the requirements for leave to proceed under the New South Wales rules. In Schib Packaging Srl v Emrich Industries Pty Ltd, the Victorian Court of Appeal did not 142. HCt r 9.07.03; ACT r 6507; NSW r 11.8AA; SA r 40F; Tas r 147F; Vic r 7.07. In Queensland, there are no explicit requirements either of leave to serve out or of leave to proceed in the absence of an appearance. For a criticism of the bifurcated approach to jurisdiction, see P Myburgh and E Schoeman, ‘Jurisdiction in TransNational Cases’ [2004] New Zealand Law Review 403. 143. (2000) 201 CLR 552; [2000] HCA 41. 144. At 576, 584. 145. At 571. 146. At 573. 147. At 573 (emphasis in original). 148. At 574.

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refer to Agar v Hyde, and held that the plaintiff is required to establish ‘a strongly arguable case’,149 but a differently constituted Victorian Court of Appeal disapproved this aspect of Schib Packaging as being inconsistent with Agar v Hyde in Madden International Ltd v Lew Footwear Holdings Pty Ltd.150 2.44 In Agar v Hyde, the court held that it would be wrong to attempt exhaustively to enumerate the circumstances in which the court could set aside service of initiating process, or stay proceedings, but stated that it might do so if any of the following obtained: • the nature of the allegations made did not bring the claim within one (or more) of the grounds of jurisdiction set out in the rules;151 • the court was a clearly inappropriate forum for the determination of the proceedings, under the relevant principles of forum non conveniens.152 These are discussed in Chapter 4;153 or • the claim had insufficient prospects of success to warrant an overseas defendant being put to the time, expense and trouble of the litigation. Gaudron, McHugh, Gummow and Hayne JJ held that there had to be ‘a high degree of certainty about the ultimate outcome of the proceeding’, so it was not sufficient that the plaintiff ’s failure at trial merely be ‘likely’ or ‘probable’. The test was the same as that applied in local proceedings where a defendant can secure summary judgment that the matter not go to trial.154 In Agar v Hyde, it was this issue that led the court to refuse leave to proceed. The absence of a duty of care necessarily meant that the plaintiff had insufficient — indeed, no — prospects of success. 2.45  The harmonised rules of court have incorporated this aspect of Agar v Hyde, in the provision relating to whether the court should dismiss or stay the proceedings, or set aside the originating process or its service, on the application of the person on whom process was served.155 These provisions state that the court may make an order setting aside originating process or its service, or dismiss or stay the proceedings: if satisfied — (a) that service out of Australia of the originating process is not authorised by these Rules; or (b) that the Court is an inappropriate forum for the trial of the proceeding; or (c) that the claim has insufficient prospects of success to warrant putting the person served out of Australia to the time, expense and trouble of defending the claim.

149. (2005) 12 VR 268; [2005] VSCA 236. 150. (2015) 50 VR 22; [2015] VSCA 90. See likewise Puccini Festival Australia Pty Ltd v Nippon Express (Australia) Pty Ltd (2007) 17 VR 36; [2007] VSC 288 at [14]; Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320 at [127]–[135]; cf Castel Electronics Pty Ltd v TCL Airconditioner (Zhongshan) Co Ltd [2013] VSC 92 at [14]. 151. (2000) 201 CLR 552 at 575; [2000] HCA 41. 152. For the same reason, the court should also consider the effect of any jurisdiction clause which applies to the issues in dispute. 153. See 4.39–4.51. 154. Agar v Hyde (2000) 201 CLR 552 at 576; [2000] HCA 41. 155. ACT r 6504(2); NSW r 11.6(2); SA r 40C(2); Tas r 147C(2); Vic r 7.04(2).

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Although the question of onus of proof was not raised in Agar v  Hyde, and is not mentioned in the harmonised rules, while in practice the defendant will probably raise these issues in an application to contest jurisdiction,156 the plaintiff bears the onus of establishing that they are not made out. This is, for example, the principle applicable in these applications under the doctrine of forum non conveniens, in which the plaintiff must show that the court is not a clearly inappropriate forum for the determination of the proceedings.157 Ultimately, the party on whom the onus rests will depend on the construction of the relevant rules.158 2.46  As noted above, the plaintiff must show that the case is within one of the grounds of jurisdiction specified in the relevant rules of court. The most commonly invoked and important grounds of jurisdiction are discussed below. The principle that requires the rules of court to be read narrowly means that in the Federal Court, the Northern Territory, and Western Australia, the action must be completely within one of the grounds specified in the rules if the court is properly to assume jurisdiction. It is insufficient that the action comes partly within one ground and partly within another.159 In the Australian Capital Territory, New South Wales, Queensland, South Australia, Tasmania and Victoria, the rules explicitly allow service outside Australia in such a case.160

Harmonised rules of court 2.47  The rules of court of the Australian superior courts have until recently been separately developed by Rules Committees in each jurisdiction; there has been a degree of similarity between the rules in the nine different jurisdictions. Between 2016 and early 2018, the Australian Capital Territory and New South Wales, South Australia, Tasmania and Victoria adopted nearly identical, ‘harmonised’ rules addressing service outside Australia. These rules were developed under the auspices of the Council of Chief Justices, and were based on the New Zealand High Court Rules.161 The rules in these five jurisdictions now allow service ex iuris in almost exactly the same circumstances. The rules in the other four Australian jurisdictions (the Federal Court, the Northern Territory, Queensland and Western Australia) are in many respects similar to the harmonised rules, but there are some differences. One of the most significant differences is that, as explained above,162 in the four states that have adopted the harmonised rules, the connection used in the rules is to Australia, rather than to the relevant state. The Australian Capital Territory has adopted the harmonised rules, but in those rules, the connection used is to the Australian

ACT r 6503; NSW r 11.7; Qld r 126; NT r 7.05; Tas r 147B; Vic r 7.04. See 4.39. Cf Pendal Nominees Pty Ltd v M and A Investments Pty Ltd (1989) 18 NSWLR 383. Deputy Commissioner of Taxation v Ahern [1986] 2 Qd R 342. ACT r 6501(s); NSW Sch 6(s); Qld r 124(1)(x); SA r 40A(s); Tas r 147A(s); Vic r 7.02(s); cf Tycoon Holdings Ltd v Trencor Jetco Inc (1992) 34 FCR 31 at 34–5. 161. For a detailed explanation of the provenance of the rules, see Dickinson, above n 109. See also M Douglas and V Bath, ‘A New Approach to Service outside the Jurisdiction and outside Australia under the Uniform Civil Procedure Rules’ (2017) 44 Australian Bar Rev 160. 162. See 2.34. 156. 157. 158. 159. 160.

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Capital Territory. Some of the grounds of jurisdiction in the harmonised rules are new to Australia,163 and their interpretation may take some time to settle.

Grounds of jurisdiction — personal connections 2.48  For all of the superior courts, the rules provide that a person who is domiciled or ordinarily resident in the territory of the forum court can be served outside Australia.164 The harmonised rules have introduced two important changes to this. In addition to the connections of domicile and ordinary residence, they also include ‘habitual residence’; a personal connecting factor developed by the Hague Conference of Private International Law and used in some Hague Conventions. In the four states which have adopted the harmonised rules, the relevant connection is not to the territory of the forum court, but to Australia;165 in the Australian Capital Territory, the stated connection is to the Australian Capital Territory.166 The concepts of domicile, ordinary residence and habitual residence import more permanent connections with a place than mere presence, and are discussed in detail in Chapter 10. To the extent that the rules require a connection to the relevant law area, they are therefore a sensible extension of the common law requirements for jurisdiction, and actually restore the more ancient principle that the proper place in which litigation against a person was to be determined was a court in the place where the defendant was domiciled (forum domicilii). If the defendant can be served on this ground, there is no other requirement for the action to have any connection with the forum in order to establish jurisdiction.167

Grounds of jurisdiction — submission to the jurisdiction 2.49  The rules of court allow service on a foreign defendant who has submitted to the jurisdiction of the forum court. The Federal Court, Australian Capital Territory, New South Wales, Queensland, South Australian, Tasmanian and Victorian rules allow service outside Australia when the defendant has submitted, or agreed to submit, to the jurisdiction of the court.168 In the Northern Territory and Western Australia, the agreement to submit to jurisdiction must be a term of a contract, and the proceedings must be ‘founded on a

163. There is a limited amount of jurisprudence from New Zealand courts interpreting the High Court Rules (NZ) upon which the harmonised rules were based. Some of the novel bases of jurisdiction in the harmonised rules are similar to some grounds of jurisdiction under the UK Practice Direction which contains the rules authorising service out of the jurisdiction: Civil Procedure Rules 1998 (SI 1998/3132), Practice Direction 6B. 164. FCt r 10.42, item 18(a); ACT r 6502(g); NSW Sch 6(g); NT r 7.01(1)(c); Qld r 124(1)(d); SA r 40A(g); Tas r 147A(g); Vic r 7.02(g); WA O 10 r 1(1)(c). Most of the rules refer to ‘persons’ in this ground of jurisdiction, but in the Federal Court, particular provision is made for a similar ground of general jurisdiction in the case of corporations, relying on the connecting factors of incorporation, carrying on business, or registration within the forum: FCt r 10.42, item 18(b). 165. NSW Sch 6(g); SA r 40A(g); Tas r 147A(g); Vic r 7.02(g). 166. ACT r 6502(g). 167. Lenders v Anderson (1883) 12 QBD 50. 168. FCt r 10.42, item 19; ACT r 6502(k); NSW Sch 6(k); Qld r 124(1)(r); SA r 40A(k); Tas r 147A(k); Vic r 7.02(k).

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contract’, or ‘in respect of the contract’. 170 The Queensland rules permit service out on both grounds — where the defendant has submitted generally as well as where the defendant has contractually submitted to the jurisdiction.171 169

Grounds of jurisdiction — contracts 2.50  There are eight specific grounds on which an action affecting a contract might allow service of a person outside Australia: the contract contains a term by which the defendant submits to the jurisdiction;172 the contract was made in the forum, or in Australia; the contract was made by or through an agent connected to the forum, or Australia; the contract was to be performed in the forum or in Australia; there was a breach of the contract within the forum or in Australia; the contract is governed by the law of the forum or Australia; one of the parties to the contract has a connection to the forum; and the proceedings concern the construction, rectification, setting aside or enforcement of a contract affecting property within the forum.173 The term ‘contract’ in these rules encompasses all rights and obligations that were created by express agreement. The rules are interpreted broadly and include actions brought by a third party in respect of a contract made by others,174 and actions relating to other obligations to pay a fixed sum of money that are imposed by law. Therefore, these rules may allow service outside Australia in respect of an action for money had and received;175 actions in quasi-contract176 and quantum meruit;177 an action by a governmental agency for the recovery of rates, charges or taxes;178 and an action for the recovery of a debt.179 Consequently, an action for the enforcement of a judgment debt resulting from litigation in another country potentially lies within the rules.180 A debt may also be regarded as personal property, and if deemed to be located in the forum the rules allowing service outside Australia in claims relating to property in the forum may also be applicable. A  plaintiff therefore could rely on either of these grounds in proceedings for the enforcement of a foreign judgment. The ‘contract’ — even as understood in this looser sense — must be between the plaintiff and the defendant.181 This includes claims brought by

169. 170. 171. 172. 173. 174. 175. 176. 177.

178. 179. 180.

181.

NT r 7.01(1)(h). WA O 10 r 2. Qld r 124(1)(i). This basis of jurisdiction is discussed at 2.49. This final basis of jurisdiction is discussed at 2.84. Nominal Defendant v Motor Vehicle Insurance Trust (WA) (1983) 50 ALR 511. Bowling v Cox [1926] AC 751; Durra v Bank of New South Wales [1940] VLR 170. Benson v Rational Entertainment Enterprises Ltd [2015] NSWSC 906 at [87]. Earthworks and Quarries Ltd v FT Eastment and Sons Pty Ltd [1966] VR 24; Schweitzer v Kronen Verwaltungs GmbH [1998] VSC 190 at [43]. In the jurisdictions which have adopted the harmonised rules, there is a separate ground of jurisdiction relating to claims for restitution: ACT r 6502(l); NSW Sch 6(l); SA r 40A(l); Tas r 147A(l); Vic r 7.02(l). Belyando Shire Council v Rivers [1908] QWN 17; Chenoweth v Summers (1941) 47 ALR (CN) 364a; Victoria v Hansen [1960] VR 582. Earthworks and Quarries Ltd v FT Eastment and Sons Pty Ltd [1966] VR 24. Adcock v Aarons (1903) 5 WALR 140. In the jurisdictions which have adopted the harmonised rules, there is a separate ground of jurisdiction ‘when it is sought to recognise or enforce any judgment’: ACT r 6502(m); NSW Sch 6(m); SA r 40A(m); Tas r 147A(m); Vic r 7.02(m). Finnish Marine Insurance Co Ltd v Protective National Insurance Co [1990] 1 QB 1078.

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a plaintiff as an assignee of rights under the contract or against a defendant as transferee of liabilities under the contract.182

Contract made in the forum 2.51  In all jurisdictions, a person can be served outside Australia in an action relating to a contract made in the forum,183 or in Australia.184 The law of the forum determines where the contract is made. Occasionally, the parties specify where the contract was made in the agreement itself. Such a provision is not conclusive of the place where the contract is made.185 That conclusion is ascribed by law, and not the agreement of the parties. 2.52  At common law, contracts made by express agreement are made in the place where the last act necessary to create a binding contractual obligation occurred.186 In general, this will be the place where the offeror received communication of acceptance of the terms of the agreement. This rule also holds whenever some form of instantaneous communication is used. This applies when communications between the parties are by telephone,187 fax,188 email,189 or by acceptance of terms provided on a website.190 The Electronic Transactions Acts of the Commonwealth, the states and territories provide that ‘electronic communication is taken to have been received at the place where the addressee has its place of business’.191 International sale of goods contracts governed by the Sale of Goods (Vienna Convention) Acts are deemed to be made wherever the offeror received the acceptance of their offer, regardless of the mode of acceptance.192 2.53  Where communications between the parties are by post or telegram, the contract will be made in the place from where the letter or telegram was sent. The ‘postal rule’ only applies where the circumstances are such that it must have been within the contemplation of the parties that, according to ordinary usage, the post or a telegram might be used to communicate acceptance.193 It is never applicable when the contract falls within the terms of the Sale of Goods (Vienna Convention) Acts.

182. 183. 184. 185. 186. 187. 188. 189.

190. 191. 192. 193.

D R Insurance Co v Central National Insurance Co [1996] 1 Lloyd’s Rep 74 at 78. FCt r 10.42, item 3(a); ACT r 6502(b)(i); NT r 7.01(1)(f)(i); Qld r 124(1)(g)(i); WA O 10 r 1(1)(e)(i). NSW Sch 6(b)(i); SA r 40A(b)(i); Tas r 147A(b)(i); Vic r 7.02(b)(i). Sheldon Pallet Manufacturing Co Pty Ltd v New Zealand Forest Products Ltd [1975] 1 NSWLR 141. Deer Park Engineering Pty Ltd v Townsville Harbour Board (1974) 5 ALR 131. Entores Ltd v Miles Far East Corp [1955] 2 QB 327 at 332; Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539. Reese Bros Plastics Ltd v Hamon-Sobelco Aust Pty Ltd (1988) BCL 91. Olivaylle Pty Ltd v Flottweg GmbH & Co KGAA (No 4) (2009) 255 ALR 632 at 642; [2009] FCA 522; Showtime Touring Group Pty Ltd v Mosely Touring Inc [2010] NSWSC 974; Centrebet Pty Ltd v Baasland (2012) 272 FLR 69; [2012] NTSC 100; Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320. Australian Competition and Consumer Commission v Valve Corp (No 3) (2016) 337 ALR 647; [2016] FCA 196 at [78]. For example, Electronic Transactions Act 1999 (Cth) s 14B(1)(b); Electronic Transactions Act 2000 (NSW) s 13B(1)(b). For example, Sale of Goods (Vienna Convention) Act 1986 (NSW) Sch 1, Art 18(2). Henthorn v Fraser [1892] 2 Ch 27 at 33; Tallerman and Co Pty Ltd v Nathan’s Merchandise (Vic) Pty Ltd (1957) 98 CLR 93; Lewis Construction Co Pty Ltd v M Tichauer SA [1966] VR 341.

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Contract made by an agent in the forum 2.54  In the Federal Court, service outside the jurisdiction is permitted where the contract was made on behalf of the defendant by the defendant’s agent who was resident in the forum, or trading or carrying on business in the forum.194 In the other jurisdictions, the agent need not be that of the defendant: service outside the jurisdiction is permitted where the contract was made by an agent trading or residing in the forum195 or in Australia. 196

Contract to be performed in the forum 2.55  Under the harmonised rules, service out of the jurisdiction is authorised where a contract was to be ‘wholly or in part performed’ in the forum,197 or in Australia.198 This is a new ground of jurisdiction in Australia. If the parties have stipulated the place of performance in the contract, that will likely be decisive; otherwise, determining where a contract is to be performed is a question of interpretation of the contract, which should be done according to the governing law of the contract. The case law interpreting the older ground of jurisdiction where a contract was breached in the forum199 will be relevant in interpreting this new basis of jurisdiction in the harmonised rules.

Breach of contract in the forum 2.56  In all of the rules of court, service outside Australia is permitted if the proceedings concern a breach of a contract in the forum or Australia.200 To justify service on this ground, the plaintiff must show that: (1) the action is ‘in respect of ’ or ‘founded on’ a valid contract; (2) there was a breach of that contract; and (3) the breach took place in the forum. 2.57  The action does not have to be one in contract for service outside Australia to be permissible. For example, in South Adelaide Football Club v Fitzroy Football Club (No 1),201 the South Australian Supreme Court permitted service outside the state on this ground where the action was in tort. The plaintiff alleged that the defendant in Victoria induced a breach of contract in South Australia, so the action could be properly classified as one ‘in respect of ’ a breach in the forum state. 2.58  Identifying the location of a breach of contract requires interpreting the contract in question. The obligation which the plaintiff alleges has been breached must be one which had to be performed in the forum. It is not sufficient that the obligation in question could have been performed in the forum as well as in some other place.202 To determine where the obligation had to be performed, the terms of the contract are obviously of paramount FCt r 10.42, item 3(b). ACT r 6502(b)(ii); NT r 7.01(1)(f)(ii); Qld r 124(1)(g)(iii); WA O 10 r 1(1)(e)(ii). NSW Sch 6(b)(ii); SA r 40A(b)(ii); Tas r 147A(b)(ii); Vic r 7.02(b)(ii). ACT r 6502(b)(iii). NSW Sch 6(b)(iii); SA r 40A(b)(iii); Tas r 147A(b)(iii); Vic r 7.02(b)(iii). See 2.58–2.59. FCt r 10.42, item 2; ACT r 6502(c); NSW Sch 6(c); NT r 7.01(1)(g); Qld r 124(1)(h); SA r 40A(c); Tas r 147A(c); Vic r 7.02(c); WA O 10 r 1(1)(f). 201. (1988) 49 SASR 380. 202. Cuban Atlantic Sugar Sales Corp v  Compania de Vapores San Elefterio (C/V) Lda [1960] 1 QB 187; BP Australia Ltd v Wales [1982] Qd R 386.

194. 195. 196. 197. 198. 199. 200.

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importance, but otherwise the court must resort to rules of law, common business practices and custom. In the case of a failure to pay a debt, the breach occurs where the debt was to be paid. If this was in the forum, then service outside Australia might be allowed. Alternatively, the place where payment is to be made might be expressed or implied in the contract.203 If this cannot be identified in, or inferred from, the contract itself, the general rule is that the debtor must pay the creditor at the creditor’s place of residence. 204 So long, therefore, as the creditor resides in the forum, the breach of the obligation to pay the debt can be assumed to have occurred there. 2.59  If the plaintiff alleges that it is the performance of an act that constitutes a breach of contract then that breach is taken to occur where the act took place. In Safran v Chani,205 the breach was a repudiation of a promise to marry, made by a letter posted in Melbourne. The New South Wales Court of Appeal held the repudiation occurred where the letter was posted, and did not depend on where the marriage was meant to take place.

Contract governed by the law of the forum 2.60  In all Australian jurisdictions, a person can be served outside Australia in an action relating to a contract that is governed by the law of the forum,206 or ‘by Australian law’.207 In the Federal Court, the Australian Capital Territory, the Northern Territory, Queensland and Western Australia, this means that the law of the cause in an international contract case — the proper law of the contract — must be the law of the forum.208 Therefore, to determine whether it has jurisdiction the court must answer a choice of law question. Just how the court determines the proper law of the contract is discussed at length in Chapter 17. However, when deciding whether service outside Australia can be justified on this ground, the court only has to be satisfied that there is a good arguable case that the proper law is the law of the forum,209 and therefore the court’s investigation need not be as thorough at this point as it must be at the later time when the court is determining the proper law of the contract at trial.210 2.61  There will be instances where the law of the forum governs the contract because a forum statute deems itself to apply to the contract, and not because the proper law of the contract is the law of the forum.211 2.62  The harmonised rules have introduced some complexity to this ground of jurisdiction. They state that service out of Australia is permitted for a contract claim which 203. For example, Earthworks and Quarries Ltd v FT Eastment and Sons Pty Ltd [1966] VR 24; Lewis Construction Co Pty Ltd v M Tichauer SA [1966] VR 341; Deer Park Engineering Pty Ltd v Townsville Harbour Board (1974) 5 ALR 131. 204. Benson v Rational Entertainment Enterprises Ltd [2015] NSWSC 906 at [91]. 205. (1970) 72 SR (NSW) 146. 206. FCt r 10.42, item 3(c) (allowing service out of the jurisdiction if the contract is governed by the law of the Commonwealth or of a state or territory); ACT r 6502(b)(iv); NT r 7.01(1)(f)(iii); Qld r 124(1)(g)(iv); WA O 10 r 1(1)(e)(iii). 207. NSW Sch 6(b)(iv); SA r 40A(b)(iv); Tas r 147A(b)(iv); Vic r 7.02(b)(iv). 208. Weckstrom v Hyson [1966] VR 277 at 282. 209. Finnish Marine Insurance Co Ltd v Protective National Insurance Co [1990] 1 QB 1078 at 1084. 210. Fleming v Marshall (2011) 279 ALR 737 at [36]; Murakami v Wiryadi (2010) 268 ALR 377 at [65]. 211. For example, Hayel Saeed Anam & Co v Eastern Sea Freighters Pty Ltd (1973) 7 SASR 200.

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‘was by its terms or by implication to be governed by Australian law or to be enforceable or cognizable in an Australian court’.212 In terms, this seems to apply only to cases where the proper law of the contract has been expressly or impliedly chosen by the parties, and not to cases where the parties have not made a choice of law.213 There is no obvious reason why the harmonised rules should have limited the reference to the governing law in this way. The meaning of the second part of this provision — a contract claim which ‘was by its terms or by implication … to be enforceable or cognizable in an Australian court’ is unclear. It might be intended to refer to a jurisdiction clause in favour of an Australian court which includes within its scope claims for breach of contract.214

A party to the contract had a connection to the forum 2.63  In Queensland, service out is permitted on the basis of either party’s residence or place of business in the forum.215 This is clearly an exorbitant basis of jurisdiction, if it is the plaintiff ’s place of residence or business.

Grounds of jurisdiction — wrongs Cause of action arising in the forum 2.64  The rules in most jurisdictions allow service outside Australia where the claim is founded on a cause of action that arose in the forum,216 or in Australia.217 These rules comprehend actions in tort but are not limited to them, and would, for example, also cover actions for a breach of contract that arose in the forum.218 The extraterritorial jurisdiction recognised in Distillers Co (Biochemicals) Ltd v Thompson219 was based on this ground. The defendant company in Distillers manufactured a sedative called ‘Distaval’ in England. Distaval was marketed in New South Wales, and taken there on prescription by Mrs Thompson, while she was pregnant. The sedative was largely made of thalidomide and, as a result, Mrs Thompson’s daughter was born in 1962 without arms and with defective eyesight. Through her father as next friend, the baby brought an action in the Supreme Court of New South Wales  against the defendant as manufacturer and, importantly, as supplier of Distaval, alleging that the company had been negligent in the manufacture of 212. NSW Sch 6(b)(iv); SA r 40A(b)(iv); Tas r 147A(b)(iv); Vic r 7.02(b)(iv). The same phrase is used in the Australian Capital Territory rules, but in those rules, the requisite connection is to ‘a territory law’, and the relevant forum is ‘the court’: ACT r 6502(b)(iv). 213. As is explained in detail in Chapter 17, the governing law of a contract is the law the parties intended to apply to it (either expressly or by inference); in the absence of an actual choice by the parties, then the proper law of the contract is the law of the legal system with the closest and most real connection to the contract. 214. This particular provision is not found in the New Zealand High Court Rules 2016 on which the harmonised rules are based. The related provision of the English rules authorises service out of the jurisdiction in respect of contract claims where the contract ‘contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of the contract’: Civil Procedure Rules 1998 (SI 1998/3132) (England and Wales), Practice Direction 6B — Service Out of the Jurisdiction, para 3.1(6)(d). 215. Qld r 124(1)(g)(ii). 216. FCt r 10.42, item 1; ACT r 6502(n); Qld r 124(1)(a). 217. NSW Sch 6(n); SA r 40A(n); Tas r 147A(n); Vic r 7.02(n). 218. See 2.56–2.59. 219. [1971] AC 458.

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the sedative and in failing to warn of its dangers if taken by pregnant women. The writ was served in England, under the rule allowing service outside New South Wales when a cause of action arose in the state. The defendant contested jurisdiction, but the Privy Council ultimately upheld the Supreme Court’s jurisdiction in the case. 2.65  In the Privy Council in Distillers, Lord Pearson considered three competing theories as to when a cause of action would arise in the state: (1) when every ingredient of the cause of action occurred in the state; (2) when the last ingredient of the cause of action — the event that completes it and brings it into being — occurs in the state; and (3) when the act that gives the plaintiff a cause of complaint occurs in the state. His Lordship ruled out (1) on precedent and (2) as bad theory. It was (3) that indicated where the cause of action arose. Lord Pearson held that ‘[t]he right approach is, when the tort is complete, to look back over the series of events constituting it and ask the question, where in substance did this cause of action arise?’.220 In Distillers, the defendant’s failure to warn in New South Wales  that Distaval could cause birth defects could constitute negligence in the state, and in substance the cause of action could be said to have arisen there. So, as held by the Privy Council in that case, before service on this ground can be permitted, the important question to answer is whether the act that in substance gives the plaintiff a cause of complaint has occurred in the forum.

Tort committed in the forum 2.66  In the Federal Court, the Northern Territory, Queensland and Western Australia, service outside Australia is permissible in an action ‘founded’ or ‘based’ on a tort committed in the forum.221 The court must locate the place where the tort was committed and be satisfied that it occurred to a sufficient degree within the forum before service outside Australia can be permitted on this basis. This has become much less significant in every jurisdiction but Western Australia because of the head of jurisdiction which permits service out of the jurisdiction if the plaintiff claims to have suffered damage within the forum in consequence of a tort which occurred outside the forum.222 The questions as to whether the alleged wrong could constitute a ‘tort’ and its presumed location are answered by the law of the forum.223 However, at common law much depends on the particular tort alleged and the circumstances of the case. The principle of Distillers224 is adapted, and the question becomes: Where, in substance, did the tort arise?225 With the High Court’s recognition in Dow Jones & Co Inc v  Gutnick226 that an internet defamation occurs anywhere where the plaintiff has a reputation to injure and where the material is downloaded, Briggs has expressed reservations as to how well the Distillers test can work in internet cases. If the law of defamation differs markedly between the forum and other states and countries, then it is necessary to ask by reference to something other than the forum’s law of defamation 220. 221. 222. 223. 224. 225. 226.

At 468. FCt r 10.42, item 4; NT r 7.01(1)(j); Qld r 124(1)(k); WA O 10 r 1(1)(k). See 2.77–2.78. Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391. [1971] AC 458. See 2.64–2.65. (2002) 210 CLR 575; [2002] HCA 56.

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where in substance the tort arose. The ‘substance’ of the defamation could differ between jurisdictions.227 While this might be so for choice of law purposes, the nature of the inquiry in jurisdiction cases does not require this. It only requires the court to decide whether a tort occurred in the forum. The possibility that, according to the law of the forum, the tort might also have taken place somewhere else is irrelevant, even if it did. And that means, for establishing jurisdiction, the question logically remains whether in substance a given tort — as that is defined exclusively in the forum — took place there. 2.67  The harmonised rules use a different form of words. In the jurisdictions which have adopted them, service outside Australia is authorised where the claim is ‘founded on a tortious act or omission which was done or which occurred wholly or partly in’ the forum228 or Australia.229 The precise meaning of this provision is unclear; the English Court of Appeal interpreted the related English rule to require that ‘substantial and efficacious acts’ were committed within the jurisdiction.230 Again, this provision is not significant because of the related ground of jurisdiction in the harmonised rules enabling service out ‘where damage was sustained wholly or partly in’ the forum231 or Australia.232

Product liability claims 2.68  Distillers has had the consequence that product liability claims against foreign manufacturers may be expressed as negligent marketing in the forum, by failure to give appropriate warnings in the forum of the risks associated with the product. In these cases a tort is taken to have been committed in the forum, and service outside Australia may be permitted even though the actual manufacture took place in the foreign country.233 The more basic principle of Distillers is that the tort occurs in the place where in substance the cause of action arose. As a result, if the claim of negligent marketing appears to the court to be artificial or unreal, leave to serve or proceed will not be granted.234 By analogy to the case of negligent misstatement, the place where the defendant’s activity was directed — in the sense of the place where goods were intended to be distributed — should be regarded as significant.235

Defamation 2.69  Torts committed by spoken or written words are generally taken to have been committed where the communication was received. Thus, a defamation occurs where the 227. A Briggs, ‘The Duke of Brunswick and Defamation by Internet’ (2003) 119 Law Quarterly Review 210 at 212–13. 228. ACT r 6502(a)(i) (emphasis added). 229. NSW Sch 6(a)(i); SA r 40A(a)(i); Tas r 147A(a)(i); Vic r 7.02(a)(i). 230. Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391. 231. ACT r 6502(a)(ii). 232. NSW Sch 6(a)(ii); SA r 40A(a)(ii); Tas r 147A(a)(ii); Vic r 7.02(a)(ii). 233. Jacobs v Australian Abrasives Pty Ltd [1971] Tas SR 92; My v Toyota Motor Co [1977] 2 NZLR 113; Castree v ER Squibb & Sons Ltd [1980] 2 All ER 589; D’Ath v TNT Australia Pty Ltd [1992] 1 Qd R 369. 234. Lewis Construction Co Pty Ltd v Tichauer SA [1966] VR 341; Buttigeig v Universal Terminal & Stevedoring Corp [1972] VR 626; MacGregor v Application des Gaz [1976] Qd R 175; Hall v Australian Capital Territory Electricity Authority [1980] 2 NSWLR 26. 235. Amaca Pty Ltd v Frost (2006) 67 NSWLR 635 at 644–5; [2006] NSWCA 173.

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defamatory publication is received in a comprehensible form. A defamation made by a national broadcast in Australia is therefore committed in every state and territory of the Commonwealth.237 This principle has been applied to alleged defamations occurring on the internet, although not without considerable controversy. 236

Internet defamation 2.70 In Dow Jones & Co Inc v Gutnick,238 the plaintiff, a Victorian resident, sued the defendant company in the Supreme Court of Victoria for defamation. The claim was limited to the extent to which the alleged defamation had occurred in Victoria. The defendant was incorporated in Delaware but it centred its business in New York, from where it published the Wall Street Journal and — through an internet server in New Jersey — Barron’s Online. In 2000, Barron’s published stories about the plaintiff, questioning his business probity. The plaintiff had extensive business interests in the United States, Israel and Australia, but both his social and business life were centred in Victoria. The Victorian writ was served on the defendant in the United States, relying on the claim that, as Barron’s Online could be accessed in Victoria, a tort had been committed in the state, or damage had been suffered in the state.239 The defendant entered a conditional appearance, challenging the right of the Victorian court to exercise jurisdiction and, alternatively, applying for proceedings to be stayed on the ground that the court was a clearly inappropriate forum to deal with the case. Hedigan J in the Supreme Court of Victoria held that the court had jurisdiction, and should exercise it. The Victorian Court of Appeal refused to grant leave to appeal, but the defendant gained special leave to appeal to the High Court of Australia. Nevertheless, the High Court unanimously upheld Hedigan J’s decision. It agreed that the Supreme Court of Victoria had jurisdiction on the ground that if a defamation had been committed in Barron’s Online it had occurred in Victoria. 2.71  The leading judgment in Gutnick is that of Gleeson CJ and McHugh, Gummow and Hayne JJ, who held that, ordinarily, ‘defamation is to be located at the place where the damage to reputation occurs’.240 Their Honours continued:241 It is only when the material is in comprehensible form that the damage to reputation is done and it is damage to reputation which is the principal focus of defamation, not any quality of the defendant’s conduct. In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed.

236. Bata v Bata [1948] WN 366; Eyre v Nationwide News Pty Ltd [1967] NZLR 851. 237. Gorton v Australian Broadcasting Commission (1973) 22 FLR 181; Australian Broadcasting Corp v Waterhouse (1991) 25 NSWLR 519. 238. (2002) 210 CLR 575; [2002] HCA 56. 239. See 2.77. 240. (2002) 210 CLR 575; [2002] HCA 56 at 606. 241. At 607.

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Gaudron J agreed with this judgment,242 and Kirby and Callinan JJ concurred. Finding the repeated use of the word ‘ordinarily’ in this passage in the joint judgment significant, Richardson and Garnett have suggested that the court in Gutnick has recognised a more ‘fluid’ standard for locating an internet defamation than is often supposed. It is merely a presumption that the place of downloading is the place of the tort, but in other cases different connections might locate the defamation somewhere else.243 In Gutnick, unlike the other judges, Kirby J decided that Victorian jurisdiction was established on the ground that damage had been sustained in Victoria, and so for the purpose of establishing jurisdiction he did not have to decide where an internet defamation was located.244 However, he did deal with the question of the defamation’s location for choice of law purposes, and the conclusion would be equally applicable for identifying the place ascribed to a defamation for the purpose of establishing jurisdiction. Kirby J also held that the damage to reputation is essential to the claim in defamation, and so ‘[t]he material has to be accessed or communicated in a jurisdiction where the plaintiff has a reputation’.245 That is usually the place where the plaintiff lives, but damage — and so defamation — can also occur in all places where the plaintiff has a significant reputation. It potentially means that the one publication can be subject to a range of different defamation laws.246 Callinan J agreed that the defamation is deemed to occur ‘where comprehension of defamatory matter occurs’.247 This can give rise to a separate cause of action in each place where the communication is comprehended.248 In the result, Barron’s Online was capable of being downloaded, and was downloaded in comprehensible form, in Victoria. The allegation was therefore one of a tort having been committed in the state. There is nothing exceptional in Gutnick’s conclusion that the place of downloading is ordinarily the place where an internet defamation occurs. This is also the conclusion that English courts have drawn.249 2.72  Central to the concerns about the decision in Gutnick is the ‘Zimbabwe factor’. This is that, if it is possible for purposes of jurisdiction to locate a defamation at any place at which the plaintiff has a reputation and where the material can be downloaded, then anyone publishing on the internet has to measure the material against the defamation laws of every country. If all countries took the Gutnick approach, jurisdiction could be exercised — as it was put in the joint judgment — ‘from Afghanistan to Zimbabwe’.250 The ubiquitous nature of the internet means that publication potentially occurs immediately in any country on the globe. The means of avoiding this, as was argued in Gutnick, is the adoption of a ‘single publication rule’, by which a single, allegedly defamatory publication is deemed to be located in one place only. That place could potentially be identified by 242. At 610. 243. M Richardson and R Garnett, ‘Perils of Publishing on the Internet: Broader Implications of Dow Jones v Gutnick’ (2004) 13 Griffith Law Review 74 at 78. 244. (2002) 210 CLR 575; [2002] HCA 56 at 622. 245. At 639. 246. At 639. 247. At 652. 248. At 652. 249. Godfrey v Demon Internet [2001] QB 201; Loutchansky v Times Newspapers Ltd [2002] QB 783; King v Lewis [2004] EWHC 168 at [15]. 250. (2002) 210 CLR 575 at 609; [2002] HCA 56.

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reference to a number of possible connections. For example, it could be the place where the publisher acted (rather than the place where publication occurred), or the place where the material was uploaded on to the internet, or the place of the plaintiff ’s habitual residence — the last of which was the Australian Law Reform Commission’s preference in its 1992 Choice of Law report.251 All single publication options were naturally rejected in Gutnick. It concerned the judges that, especially given the dominance within the internet of American servers, those connections that focus on the defendant’s place of acting, or the place of uploading, would lead to the import of American standards of defamatory conduct.252 So, the court continued to allow injury to reputation, as the gist of defamation, to determine the relevant locating factor for internet libels. Callinan J appears to have had no concern whatsoever about the ‘Zimbabwe factor’.253 Svantesson has surveyed the possibility of locating a defamation in other places — where the material was created; where it was uploaded; where the defamatory material was acquired; where it was understood; where the act injuring the plaintiff occurs; or where the plaintiff suffers damage. He also concluded that the place where the material was comprehended — the Gutnick location — was imperfect, but seemed to be the best option.254 2.73  Those who lamented Gutnick often expressed concern that it threatened the right to free expression on the internet. Further, the High Court’s statement of the rules of jurisdiction (and choice of law) that enabled local laws to apply to internet communications was, it was argued, singularly inappropriate for a medium of communication that was essentially global.255 This claim, which rests on the supposed effect of the Zimbabwe factor, can be exaggerated. The mere fact that a court can, under its own rules, and does, exercise jurisdiction does not necessarily mean that it has any material consequences. Nor does it mean that liability is imposed. For the exercise of jurisdiction does not mean that coercive power can be applied against the defendant. As discussed earlier,256 it is jurisdiction coupled with the ability to enforce a judgment against the defendant that amounts to coercion. It will hardly ever be the case that, if the defendant is absent, merely exercising jurisdiction on the ground that a tort was committed in the forum will, of itself, enable the resulting judgment to be enforced internationally.257 At best, the plaintiff will get a judgment that can be enforced against any assets the defendant has in the forum, or the right to garnishee any debtors the defendant might have in the forum.258 However, the larger question in Gutnick was whether the internet creates such different conditions for communication that different rules should be crafted for it. Here, Rolph objected that the essence of the tort 251. 252. 253. 254. 255. 256. 257.

258.

Australian Law Reform Commission, Choice of Law, Report No 58, Canberra, AGPS, 1992, p 57. (2002) 210 CLR 575 at 609, 633, 653–4; [2002] HCA 56. At 651. D J B Svantesson, ‘“Place of Wrong” in the Tort of Defamation — Behind the Scenes of a Legal Fiction’ (2005) 17 Bond Law Review 149. R Garnett, ‘Dow Jones & Company v Gutnick: An Adequate Response to Transnational Internet Defamation?’ (2003) 4 Melbourne Journal of International Law 196. See 2.2. Cf Svantesson, above n 254, at 160. For the Australian rules, see 5.11–5.17 and 5.56–5.59. The enforcement of an Australian judgment overseas will naturally depend on the recognition and enforcement rules of the relevant foreign country. Briggs, above n 227, at 214.

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is not the method of making the communication, but that another person understood it. And, in any case, the risk of adopting a technology-specific rule is that it cannot deal with, or even foresee, emerging technologies of communication.259 He therefore believed that the place of downloading was rightly maintained as the place of the tort.260 Richardson and Garnett did so as well, but only because they believed that the court adopted a flexible approach in allowing that an internet defamation could, on occasion, shift from the place of downloading.261 2.74  There are means other than the rules of international jurisdiction for dealing with the Zimbabwe factor. One, raised in Gutnick, is the doctrine of forum non conveniens, which in Australia will defeat the plaintiff ’s choice of forum if the court, by reference to geographical contacts, decides that it is a clearly inappropriate forum for dealing with the case. Gutnick itself though, a case brought in the plaintiff ’s home state, is not an example of an inappropriate court for the supposed victim to litigate in. It might be different if the plaintiff, like the defendant, were foreign to the forum, and had only decided to sue there because he had something of a reputation to maintain in the forum or because it had a more plaintiff-friendly defamation law than other places. Forum non conveniens may not, however, be an effective way to deal with this.262 For that reason, some believe that the better principle would be to allow that the tort had occurred in the forum (or anywhere else) if the defendant intended to harm the plaintiff ’s reputation there.263 This would not give a single publication rule — the publisher might ‘intend’ injury in a number of places with which the plaintiff has some significant connection. But nor would it leave the Zimbabwe factor intact, as the possible places where the defamation was located would be limited to those within the range of both the plaintiff ’s and the defendant’s spheres of significant business or personal activity.

Other communication torts 2.75  Misrepresentations are committed in the place where the communication was received and acted upon,264 if the defendant knew or anticipated that the plaintiff would receive the message there.265 Where a statement is made at large, that is, not directed to a particular person, it is necessary that the party making the statement targeted or directed

259. D Rolph, ‘The Message, Not the Medium: Defamation, Publication and the Internet in Dow Jones & Co v Gutnick’ (2002) 24 Sydney Law Review 263 at 270–1. 260. At 280; Svantesson, above n 254, at 179–80. 261. Richardson and Garnett, above n 243. 262. For example, Berezovsky v Michaels [2000] 2 All ER 986. 263. Garnett, above n 255, at 216; O Bigos, ‘Jurisdictional Discretion in Defamation on the Internet’ [2004] Lloyd’s Maritime and Commercial Law Quarterly 129 at 135. 264. Diamond v Bank of London and Montreal Ltd [1979] QB 333; Cordoba Shipping Co Ltd v National State Bank [1984] 2 Lloyd’s Rep 91; Sedgwick Ltd v Bain Clarkson Ltd (1994) 56 FCR 578; Williams v The Society of Lloyd’s [1994] 1 VR 274 at 316–17; Morin v Bonhams & Brooks Ltd [2003] 2 All ER (Comm) 36 at 46–8; Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539. 265. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 568; Telesto Investments Ltd v UBS AG (2012) 262 FLR 119; [2012] NSWSC 44 at [197]–[203]; Clurname Pty Ltd v McGraw-Hill Financial, Inc [2017] FCA 1319 at [65].

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the statement to the particular jurisdiction in which it is claimed that the statement was received.266

Misleading conduct 2.76  For the purposes of jurisdiction, a claim based on the statutory prohibition of misleading or deceptive conduct under the Australian Consumer Law is often treated as tortious,267 although in most jurisdictions there are separate bases of jurisdiction applicable to statutory claims which would authorise service out for a claim based on misleading or deceptive conduct.268

Damage suffered in the forum 2.77  In every jurisdiction but Western Australia, service outside Australia is permitted if the proceeding is ‘founded on’ or caused by a tortious act or omission in respect of which damage was suffered wholly or partly in the forum269 or Australia.270 Accordingly, it is possible to serve process outside Australia even if much of the damage is suffered outside the forum, and some only is suffered inside the forum’s borders once the plaintiff moves there. This rule applies to ‘any compensable damage caused by the tort, including economic loss’.271 For example, it is sufficient if the plaintiff incurred medical expenses in the forum;272 lost property in the forum that was offered as security to finance an overseas purchase;273 or suffered economic losses in the forum.274 This ground has become the more popular means of establishing international jurisdiction in personal injuries cases, but it is also available in other tort claims.275 Even where only part of the damage is suffered in the forum, if the plaintiff is allowed to proceed against the defendant on this ground the plaintiff is then entitled to claim for recovery of all of the damage suffered — whether sustained inside the forum or outside.276 A defendant served on this ground may join a third party for contribution — even before judgment is entered against the defendant — on the basis that, by the adverse judgment, the defendant has suffered damage in the forum.277 2.78  This ground arguably allows the most exorbitant international jurisdiction exercised by Australian courts. In effect, it allows service outside Australia merely because 266. Ward Group Pty Ltd v Brodie & Stone plc (2005) 143 FCR 479; [2005] FCA 471. 267. Commonwealth Bank of Australia v  White [1999] 2 VR 681 at 697–9; [1999] VSC 262; Centrebet Pty Ltd v  Baasland (2012) 272 FLR 69; [2012] NTSC 100 at [5]; Lew Footwear Holdings Pty Ltd v  Madden International Ltd [2014] VSC 320 at [196]; cf Williams v Society of Lloyd’s [1994] 1 VR 274 at 312. 268. See 2.80. 269. FCt r 10.42, item 5; ACT r 6502(a)(ii); NT r 7.01(1)(k); Qld r 124(1)(l). 270. NSW Sch 6(a)(ii); SA r 40A(a)(ii); Tas r 147A(a)(ii); Vic r 7.02(a)(ii). 271. Sigma Coachair Group Pty Ltd v Bock Australia Pty Ltd [2009] NSWSC 684 at [124]. 272. Flaherty v Girgis (1987) 162 CLR 574. 273. Baxter v RMC Group plc [2003] 1 NZLR 304. 274. Colosseum Investment Holdings Pty Ltd v  Vanguard Logistics Services Pty Ltd [2005] NSWSC 803; PCH Offshore Pty Ltd v Dunn (No 2) (2010) 273 ALR 167; [2010] FCA 897. 275. Metall Und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 at 437; Darrell Lea Chocolate Shops Pty Ltd v Spanish-Polish Shipping Co Inc (1990) 25 NSWLR 568; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56; Baxter v RMC Group plc [2003] 1 NZLR 304. 276. Flaherty v Girgis (1985) 4 NSWLR 248 at 266–7. 277. Australian Mutual Provident Society v GEC Diesels Australia Ltd [1989] VR 407.

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of the plaintiff ’s personal connection — usually by reason of residence — with the forum, despite the complete absence of any connection between the events or the defendant on the one hand, and the forum on the other.278 The plaintiff ’s capacity to earn naturally follows the plaintiff wherever they happen to be. As Flaherty v Girgis279 recognised that diminution of earning capacity was ‘damage’ within the meaning of the rule, the rule effectively edges close to allowing service overseas merely because the plaintiff is resident in the forum. And jurisdiction exercised merely because of a plaintiff ’s personal connection with the forum has long been regarded as exorbitant, and even an excessive claim of power over a defendant.280 For this reason, the rule allowing extraterritorial service on this ground was challenged in New South Wales on the basis that it was outside the state parliament’s power to legislate for the peace, welfare and good government of New South Wales. While this question had been left open in Challenor v Douglas,281 it was brought squarely before the New South Wales Court of Appeal in Flaherty v Girgis.282 There, the attempt by New South Wales  to exercise jurisdiction and impose liability on a person who had no connection with the state was argued to be outside the state’s legislative powers. It would only be within state legislative power to impose liability on a person who was outside the state if that was done by reference to a fact, event, thing or transaction that had a direct connection with the state. However, in Flaherty v Girgis, McHugh JA (with whom Kirby P and Samuels JA agreed) held that, in New South Wales, liability on the part of the defendant was already recognised by the application of the state’s choice of law rules, so the rule was only providing a means by which a court could render judgment in a matter for which New South Wales laws already recognised a pre-existing liability.283 Accordingly, the rule was valid. But, with respect, McHugh JA’s reasons in Flaherty are based on a circular, bootstrapping argument. McHugh JA held that New South Wales had the power to exercise jurisdiction and impose liability on a person who was outside the state because New South Wales  had already imposed liability on the person. On this reasoning, any exercise of jurisdiction by a state court would be constitutionally permissible in a multi-state case simply because liability would be recognised, or denied, under the application of the state’s choice of law rules. The doubtful aspect of the Court of Appeal’s decision in Flaherty is therefore that the constitutional validity of a rule having extraterritorial effect was not determined by reference to a ‘fact, event, thing or transaction’ connected with the state, but by reference to the state’s own laws — specifically, its choice of law rules. And, because of choice of law rules, whenever a state court is seised of jurisdiction in a multi-state case, even without the defendant before the court, it will have to decide the question of liability. The question of state legislative power was not argued in the appeal to the High Court 278. For example, Flaherty v Girgis (1987) 162 CLR 574; Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10. 279. (1985) 4 NSWLR 248. 280. The French claim to jurisdiction on the basis of the plaintiff ’s French citizenship under the former Code Civil, Art 14, was an example: L I de Winter, ‘Excessive Jurisdiction in Private International Law’ (1968) 17 International and Comparative Law Quarterly 706 at 713; K H Nadelmann, ‘Jurisdictionally Improper Fora in Treaties on the Recognition of Judgments’ (1967) 67 Columbia Law Review 995. 281. [1983] 2 NSWLR 405. 282. (1985) 4 NSWLR 248. 283. At 267–8.

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in Flaherty v  Girgis. On later occasions when the rule appeared in appeals before the High Court, Kirby J noted the exorbitance of the rule, but also that the question of state constitutional power to make the rule was not raised with the court.285 284

Grounds of jurisdiction — application of forum legislation 2.79  The rules in most jurisdictions authorise service out of the jurisdiction in a number of different cases where the proceedings concern forum legislation. In the Federal Court, the High Court, the Australian Capital Territory, New South Wales, Queensland, South Australia, Tasmania and Victoria, the rules allow service outside Australia where the action concerns the construction, effect or enforcement of forum286 or Australian287 legislation. The Federal Court and High Court Rules also provide for service outside Australia where there is a breach of a statute in Australia,288 or a breach of a statute outside Australia which causes damage to be suffered in Australia,289 or where the proceeding is for any relief or remedy under an Act.290 Under the harmonised rules, service out is authorised ‘when the claim arises’ under a forum291 or an Australian enactment and: (i) any act or omission to which the claim relates was done or occurred in the forum or Australia, or (ii) any loss or damage to which the claim relates was sustained in the forum or Australia, or (iii) the enactment applies expressly or by implication to an act or omission that was done or occurred outside Australia in the circumstances alleged, or (iv) the enactment expressly or by implication confers jurisdiction on the court over persons outside Australia.292

Paragraphs (i), (iii) and (iv) are entirely new in Australia as heads of jurisdiction. In paras (i) and (ii) the breadth of the terms ‘to which the claim relates’ suggests that these provisions will have a wide reach. Paragraph (ii) is similar to the provision in the Federal Court Rules enabling service out of the jurisdiction in respect of a breach of a statute outside Australia causing damage in Australia.293 The meaning of an act or omission ‘to which the claim relates’ is more broadly worded than simply referring to an aspect of the claim itself. Where a 284. Flaherty v Girgis (1987) 162 CLR 574. In the High Court, the rule was argued to be inconsistent with the provisions of the Service and Execution of Process Act 1901 (Cth), and invalid on that ground. The High Court also rejected this argument. 285. Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 528; [2002] HCA 10; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 622; [2002] HCA 56. As President of the Court of Appeal, Kirby J had agreed with McHugh JA’s judgment in Flaherty v Girgis: (1985) 4 NSWLR 248 at 253. 286. FCt r 10.42, item 14; ACT r 6502(p); Qld r 124(1)(t). 287. NSW Sch 6(p); SA r 40A(p); Tas r 147A(p); Vic r 7.02(p). 288. FCt r 10.42, item 12; for example, Liftronic Pty Ltd v Montgomery Elevator Co [1996] ATPR 41–458; Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539. 289. FCt r 10.42, item 13. This includes claims under the Trade Marks Act 1995 (Cth): see International Awards Group LLC Asian Advertising Festival (Spikes) Asia Pty Ltd (No 1) (2016) 120 IPR 473; [2016] FCA 617. 290. FCt r 10.42, item 15. 291. In the Australian Capital Territory rules, the relevant reference in this provision is to ‘a territory law’: ACT r 6502(j). 292. ACT r 6502(j); NSW Sch 6(j); SA r 40A(j); Tas r 147A(j); Vic r 7.02(j). 293. FCt r 10.42, item 13.

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representation is communicated from outside Australia to within Australia, with knowledge of the defendant, this will come within the terms of this paragraph.294 Paragraph  (iii), which  is applicable when the legislation ‘applies expressly or by implication to an act or omission that was done or occurred’ outside Australia, might include, for example, the reference in s 5(1) of the Competition and Consumer Act 2010 (Cth) to the application of parts of that legislation, including most of the Australian Consumer Law, to conduct outside Australia engaged in by Australian companies, citizens, and ordinary residents. The purpose of para (iv) is unclear; it is unusual for substantive Australian legislation to confer personal jurisdiction. In the Federal Court, High Court and Queensland, service out is authorised where the action concerns a ministerial or an administrative act done under a forum statute.295 In Queensland, service ex iuris is permitted in proceedings under an imperial or Commonwealth Act affecting property in the state.296 In the Northern Territory and Western Australia, the only specific reference to statutory claims are the rules allowing service out in proceedings brought under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth).297 2.80  Claims that the defendant breached s  18(1) of the Australian Consumer Law, the statutory prohibition against misleading or deceptive conduct,298 are common in international litigation. In those jurisdictions where there are no specific provisions in the rules of court dealing with statutory claims, the plaintiff might rely instead on the analogous basis of jurisdiction. For example, a claim for breach of the statutory prohibition on misleading or deceptive conduct is usually analogised to a claim in tort.299 Other statutory claims may be more analogous to claims in contract.300

Grounds of jurisdiction — property Property in the forum 2.81  For the Federal Court, the High Court and Queensland, the rules provide for a person to be served outside Australia where the subject matter of the action is property situate within the forum,301 both real and personal. In the Australian Capital Territory, New South Wales, South Australia, Tasmania and Victoria, service out of the jurisdiction 294. Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd [2011] NZLR 754 at [106] (applying the provision of the New Zealand High Court Rules on which para (j) of the harmonised rules is based). 295. FCt r 10.42, item 16; Qld r 124(1)(u). 296. Qld r 124(1)(t)(ii). 297. NT r 7.01(1)(o); WA O 10 r 1(1)(l). This is also a ground of jurisdiction in Queensland: Qld r 124(1)(q). 298. The Australian Consumer Law is contained in the Competition and Consumer Act  2010 (Cth) Sch  2. Section  18(1) is the equivalent to s  52(1) of the Trade Practices Act  1974 (Cth). Its wording is almost identical (the only difference is that s 52(1) prohibited misleading or deceptive conduct by corporations, whereas s 18(1) refers to persons, which includes corporations). Because of the similarity of the provisions, the extensive jurisprudence relating to s 52(1) of the Trade Practices Act should be treated as relevant to s 18(1) of the Australian Consumer Law. See Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320 at [197]. 299. See 2.76. 300. Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320 at [177]. 301. FCt r 10.42, item 21; Qld r 124(1)(b)(i).

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is authorised if the subject matter of the claim is land or other property in the forum or Australia.303 The primary enquiry is therefore the location or situs of the property. This is a straightforward matter where the property is land or a tangible, which are situate where they are located in space and time. It can be a much more complex issue where the property is intangible, as in the case of choses in action or intellectual property rights. The situs of property is also important in choice of law issues. This is discussed in Chapter 20, and the principles by which the law attributes a physical location to property in choice of law issues are the same as those which would be used on this ground to determine whether the action concerns property in the territory of the forum. 302

Land in the forum 2.82  In the Northern Territory and Western Australia, the rules allow service outside Australia where the subject matter is land in the forum.304 There is, under these general rules, no extraterritorial jurisdiction where the property concerned is personal. However, there might be more specific rules allowing service outside Australia in actions relating to particular kinds of personal property; for example, shares in a company situate in the forum.305 Thus, where possible, actions relating to personal property in these jurisdictions must be brought on contract or tort grounds. 2.83  Whether the rules allow service outside Australia in actions concerning real and personal property or only land, this ground is only available where the action relates to the title to, or possession of, the property.306 Thus, in Shire of Yeerongpilly v  Love307 this ground permitted service outside Queensland in an action for the recovery of rates because, by statute, the unpaid rates also constituted a charge on the land in the state. The action therefore affected title to property: namely, a security interest in the land. On the other hand, in Victoria v Hansen308 service outside Victoria was not permitted in an action for the recovery of stamp duty levied on a transfer of land in Victoria, as the legislation only imposed a personal obligation on the taxpayer to pay the duty. Extraterritorial service has also been denied in actions for the recovery of rent,309 breach of a covenant under a lease,310 enforcing a contract for the insurance of property in the forum,311 and enforcing a royalty agreement on oil exploited in the forum.312

302. 303. 304. 305. 306. 307. 308. 309. 310. 311. 312.

ACT r 6502(e). NSW Sch 6(e); SA r 40A(e); Tas r 147A(e). NT r 7.01(1)(a); WA O 10 r 1(1)(a)(i). WA O 10 r 1(1)(a)(ii). Victoria v  Hansen [1960] VR 582 at 586; Hall v  Australian Capital Territory Electricity Authority [1980] 2 NSWLR 26. (1906) 1 QJPR 73. [1960] VR 582. Agnew v Usher (1884) 14 QBD 78. Tassell v Hallen [1892] 1 QB 321. Muusers v State Government Insurance Office (Qld) [1980] 2 NSWLR 73. BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725.

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Instruments affecting property in the forum 2.84  There are also rules authorising service outside Australia where the action concerns the construction, effect or enforcement of any act, deed, will, other instrument, contract, obligation or liability affecting land or property in the forum,313 or Australia.314 In the Northern Territory and Western Australia, the rules only apply to documents affecting land in the forum.

Mortgage of personal property in the forum 2.85  In the Northern Territory and Western Australia, service outside Australia is permissible in an action relating to a mortgage of personal property located in the forum.315 This ground was originally required in those jurisdictions where actions relating to personal property had to be justified on contract or tort grounds, because they were held not to include actions for the enforcement of securities on personal property.316

Trusts 2.86  In the states and territories, service of initiating process on a trustee of property who is outside Australia is possible for the execution of written trusts, if the trust is to be executed under the law of the forum.317 The property must be in the forum at the time leave to serve is sought or presumably, under the rules allowing service without leave, when service takes place.318 This does not help to establish jurisdiction, therefore, if the trustee has misappropriated property and successfully absconded. 2.87  In the jurisdictions that have adopted the uniform rules, service out of the jurisdiction is authorised where the claim is for a constructive trust and ‘the alleged liability of the person to be served arises out of an act or omission that was done or occurred wholly or partly’ in the forum319 or in Australia.320 In the Federal Court and the High Court, service of process outside Australia is possible if the proceedings relate to trusts governed by the law of the forum.321

Grounds of jurisdiction — probate and administration 2.88  The granting of probate or letters of administration is the court’s official recognition of the title of a personal representative to a deceased person’s estate. It is not a personal action directed towards the determination of a dispute, albeit that a contest as to another 313. 314. 315. 316. 317. 318. 319. 320. 321.

FCt r 10.42, item 6; ACT r 6502(e); NT r 7.01(1)(b); Qld r 124(1)(c); WA O 10 r 1(1)(b). NSW Sch 6(e); SA r 40A(e); Tas r 147A(e); Vic r 7.02(e). NT r 7.01(1)(p); WA O 10 r 1(1)(j). Deutsche National Bank v Paul [1898] 1 Ch 283; Kolchmann v Meurice [1903] 1 KB 534; Hughes v Oxenham [1913] 1 Ch 254. ACT r 6502(f); NSW Sch 6(f); NT r 7.01(1)(e); Qld r 124(1)(f); SA r 40A(f); Tas r 147A(f); Vic r 7.02(f); WA O 10 r 1(1)(d). Winter v Winter [1984] 1 Ch 421. ACT r 6502(l). NSW Sch 6(l); SA r 40A(l); Tas r 147A(l); Vic r 7.02(l). FCt r 10.42, item 7.

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person’s entitlement to act as personal representative might exist. The rules therefore make no provision for service outside Australia in applications for a grant of probate or letters of administration. At common law the court only has jurisdiction to grant probate or letters of administration if the deceased left assets in the forum.322 In the Australian Capital Territory, the Northern Territory and Queensland, legislation provides that the courts have jurisdiction to grant probate or letters of administration even when the deceased did not leave any property in the forum or, for that matter, anywhere else.323 2.89  Except in the Federal Court and the High Court, service outside Australia is permitted in proceedings for the administration of the deceased person’s estate, when the deceased died domiciled in the forum.324 Although there is no requirement that the deceased’s property or personal representative be in the forum, unless that is the case, there will rarely be a practical need to assume jurisdiction on this ground.

Grounds of jurisdiction — foreign judgments and awards 2.90  In the Australian Capital Territory, New South Wales, South Australia, Tasmania and Victoria service outside Australia is permitted in an action relating to the enforcement of a foreign judgment in the forum.325 This overcomes a serious obstruction to the enforcement of foreign judgments by litigation (as opposed to enforcement by registration).326 However necessary it is to enforce the judgment in the forum, the jurisdiction of the forum court would otherwise depend on the foreign judgment being situate in the territory of the forum, or emerging from a contractual relationship connected with the forum. The situs of the foreign judgment, as a debt payable to the plaintiff judgment creditor, is affected by the complications applicable to the situs of debts generally, and it will often be situate outside the place where it is to be enforced.327 2.91  The Australian Capital Territory, New South Wales, South Australian, Tasmanian and Victorian rules also provide for the enforcement of foreign arbitral awards in the forum.328

Grounds of jurisdiction — injunctions, interim and ancillary relief, freezing orders 2.92  The rules of all the superior courts authorise service out of the jurisdiction where an injunction is sought enjoining the defendant to do, or refrain from doing, anything within the forum,329 or within Australia.330 The rules in the jurisdictions that have adopted 322. In the Goods of Tucker (1864) 3 Sw and Tr 585; 164 ER 1402; In the Goods of Coode (1867) LR 1P&D 449. 323. Administration and Probate Act 1929 (ACT) s 9(2); Administration and Probate Act 1969 (NT) s 14(2); Succession Act 1981 (Qld) s 6(2). 324. ACT r 6502(i); NSW Sch 6(i); NT r 7.01(1)(d); Qld r 124(1)(e)(i); SA r 40A(i); Tas r 147A(i); Vic r 7.02(i); WA O 10 r 1(1)(d). 325. ACT r 6502(m); NSW Sch 6(m); SA r 40A(m); Tas r 147A(m); Vic r 7.02(m). 326. See 5.8–5.42. 327. See 20.10–20.15. 328. ACT r 6502(q)(ii)–(iii); NSW Sch 6(q)(ii)–(iii); SA r 40A(q)(ii)–(iii); Tas r 147A(q)(i)–(ii); Vic r 7.02(q)(ii). 329. FCt r 10.42, item 23; ACT r 6502(d)(i); NT r 7.01(1)(k); Qld r 124(1)(o); WA O 10 r 1(1)(g). 330. NSW Sch 6(d)(i); SA r 40A(d)(i); Tas r 147A(d)(i); Vic r 7.02(d)(i).

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the harmonised rules also allow service out of the jurisdiction for applications for interim or ancillary relief in relation to current or pending judicial or arbitral proceedings or an arbitration agreement, ‘in respect of any matter or thing in or connected with’ the forum or Australia.331 2.93  In the jurisdictions that have adopted the harmonised rules, the rules also make specific provision for service out of the jurisdiction ‘when the claim … is an application for a freezing or ancillary order … in respect of any matter or thing in or connected with Australia’.332 In the Federal Court, Queensland, the Northern Territory and Western Australia, the rules authorising service out of the jurisdiction make no specific provision for service of applications for freezing orders. In BCBC Singapore Pte Ltd v PT Bayan Resources TBK, Pritchard J granted leave to serve an application for a freezing order overseas pursuant to O 10 r 7, which enables the Western Australian court to grant leave to serve ‘any originating process other than a writ’. 333 There are equivalent provisions under the rules of the Federal Court, the Northern Territory and Queensland.334 2.94  The rules of all the superior courts also contain uniform rules on freezing orders. In all jurisdictions, except the Australian Capital Territory and Victoria, the uniform rules of court dealing specifically with freezing orders authorise service of an application for freezing order on a person outside Australia if any of the assets to which the order relates are within the jurisdiction.335 In BCBC Singapore Pte Ltd v PT Bayan Resources TBK, Pritchard J held that O 10 r 7, which required the court to grant leave, prevailed over the provision of the rules of court enabling service of an application for a freezing order without any requirement for leave to do so.336 In the Australian Capital Territory and Victoria, the rules dealing specifically with freezing orders do not authorise service of an application for a freezing order outside Australia; instead, they refer to the rules relating to service out of the jurisdiction.337

Method of service 2.95  Where process is to be served in New Zealand under the Trans-Tasman Proceedings Act 2010 (NZ), service must be effected in accordance with the requirements of the place of issue.338 Otherwise, in most jurisdictions the parties’ agreement as to the means of service is effective. Rules in all jurisdictions except Tasmania allow the parties to a contract expressly to agree on a method of service.339 These rules obviate the need for physical service, and ACT r 6502(d)(ii); NSW Sch 6(d)(ii); SA r 40A(d)(ii); Tas r 147A(d)(ii); Vic r 7.02(d)(ii). ACT r 6502(d)(iii); NSW Sch 6(d)(iii); SA r 40A(d)(iii); Tas r 147A(d)(iii); Vic r 7.02(d)(iii). [2012] WASC 170 at [55]–[57]. FCt r 10.44; NT r 7.03; Qld r 127(b). FCt r 7.37; NSW r 25.16; NT r 37A.07; Qld r 260F; SA r 247(7); Tas r 937G; WA O 52A(7). [2012] WASC 170 at [55]–[57]. Notes to ACT Subdiv 2.9.4.2 and Vic r 37A.07 (stating that an application for a freezing order or ancillary order can be served outside Australia where service out is authorised under r 6502 and r 7.02 respectively). 338. Trans-Tasman Proceedings Act 2010 (Cth) s 9(2). 339. FCt r 10.28; ACT r 6463; NSW r 10.6; NT r 6.13; Qld r 119; SA r 67(1)(d); Vic r 6.14; WA O 9 r 3; see, for example, Tharsis Sulphur & Copper Co Ltd v Société Industrielle et Commerciale des Métaux (1889) 58 LJKB 435; Samarni v Williams [1980] 2 NSWLR 389. 331. 332. 333. 334. 335. 336. 337.

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therefore can reduce the costs of service if the defendant is outside the territorial limits of the forum. 2.96  If the parties have not made an agreement as to the method of service, the method to be used depends on whether Australia is party to a multilateral or bilateral convention with the country in which the defendant is to be served. The Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters 1965 (the Hague Service Convention)340 facilitates service in and from countries which are also parties to the convention.341 Australia has also acceded to a number of bilateral conventions, largely made by the United Kingdom with European countries in the 1920s and 1930s, for the manner of serving legal process in those countries. Service under any of these conventions is only possible where the circumstances already justify service under the domestic rules of long-arm jurisdiction. 2.97  Under the Hague Service Convention, service is achieved by cooperation between the designated state authorities nominated by each state party.342 In Australia, the relevant authorities are the Commonwealth Attorney-General’s Department, which is the Central Authority, and the registries of the Federal and Supreme Courts, which are additional, or forwarding, authorities under the convention. The Australian courts have enacted specific provisions in their rules which deal with the process by which service is to be achieved under the Hague Service Convention.343 There are two aspects to the convention. The first facilitates the service of Australian process in other convention states. The second facilitates the service of foreign process, issued by other convention states, in Australia. 2.98  The provisions enabling service overseas under the Hague Service Convention prevail over other provisions of the rules relating to service.344 If the defendant to Australian proceedings is in another contracting state, the plaintiff to Australian proceedings makes an application to the registry of the court in which proceedings are commenced, for service in that other contracting state.345 The registry communicates the request for service to the relevant central or other authority in another convention state.346 The foreign authority which deals with the request issues a certificate of service, once it has been achieved, which is then transmitted to the relevant Australian registry. The registry is obliged to send a copy of that certificate to the applicant for service under the convention, or their lawyer.347 340. Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters, 15 November 1965, Hague, No 14 (entered into force 10 February 1969) (‘the Hague Service Convention’) entered into force in Australia on 1 November 2010. 341. At the date of writing, in April 2018, there were 73 states party to the Hague Service Convention. 342. See Hague Service Convention Art 2. 343. FCt Div 10.6; ACT Div 6.8.12; NSW Pt 11A; NT O 7A; Qld Pt 7 Div 3; SA Ch 3, Pt 4, Div 4; Tas Pt 38A; Vic 80; WA O 11A. 344. FCt r 10.62; ACT r 6551; NSW r 11A.2; NT r 7A.02; Qld r 130B; SA r 41B; Tas r 970B; Vic r 80.02; WA O 11A r 2. 345. FCt r 10.64; ACT r 6553; NSW r 11A.4; NT r 7A.04; Qld r 130D; SA r 41D; Tas r 970D; Vic r 80.04; WA O 11A r 4. 346. FCt r 10.65; ACT r 6554; NSW r 11A.5; NT r 7A.05; Qld r 130E; SA r 41E; Tas r 970E; Vic r 80.05; WA O 11A r 5. 347. FCt r 10.66; ACT r 6555; NSW r 11A.6; NT r 7A.06; Qld r 130F; SA r 41F; Tas r 970F; Vic r 80.06; WA O 11A r 6.

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The rules of court contain specific provisions about applications for default judgments in cases where service is done under the Hague Service Convention.348 2.99  The rules of court also contain provisions which deal with the service in Australia of the process of foreign courts which are parties to the Hague Service Convention. In such a case, a request for service from a foreign authority might be conveyed either to the AttorneyGeneral’s department, as Central Authority, or directly to the relevant registry. In either case, the registry of the relevant court is obliged to serve the document,349 subject to minimal restrictions.350 2.100  Under the other service conventions, service of Australian process abroad is achieved in a similar way, although the actual service of documents outside Australia is usually conducted through an Australian or British diplomatic or consular mission. The rules of court make provision for service in such cases.351 In most states, the internal territories, the Federal Court and the High Court, the rules for the manner of international service provide that, when service is to occur in a convention country, it must be effected in accordance with the relevant convention.352 2.101  Where the country in which service outside Australia has to be made is not party to a convention with Australia, slightly different rules apply. In New South Wales, Tasmania and Victoria, the Attorney-General can nominate countries not party to a convention, where the process is to reflect that applicable to convention countries and the initiating process is therefore transmitted through the Attorney-General for service through a diplomatic or consular mission.353 The Western Australian rules also contemplate the possibility that service of process overseas, in a country that is not party to a convention, could be done through an Australian or British diplomatic or consular mission.354 If a mission is not used, then service must be done personally or through agents in the relevant foreign country. In all jurisdictions except Queensland, the rules provide that personal service is not required as long as the local requirements of the place of service are observed.355 In Queensland, service abroad must be done in the same way as is required in the forum,356 but is not to be conducted contrary to the requirements for service of process in the place where service is being effected.357

348. FCt rr 10.69–10.72; ACT rr 6558–6561; NSW rr 11A.9–11A.12; NT rr 7A.09–7A.12; Qld rr 130I–130L; SA rr 41I–41L; Tas rr 970I–970L; Vic rr 80.09–80.12; WA O 11A rr 9–12. 349. FCt r 10.75; ACT r 6564; NSW r 11A.15; NT r 7A.15; Qld r 130O; SA r 41O; Tas r 970O; Vic r 80.15; WA O 11A r 15. 350. FCt rr 10.73–10.74; ACT rr 6562–6563; NSW rr 11A.13–11A.14; NT rr 7A.13–7A.14; Qld rr 130M–130N; SA rr 41M–41N; Tas rr 970M–970N; Vic rr 80.13–80.14; WA O 11A rr 13–14. 351. FCt Div 10.5; NT rr 7.08–7.09; Qld r 130. 352. FCt r 10.43(2)–(4), (7); ACT r 6510; NSW rr 11.9–11.11; NT rr 7.09–7.14; Tas rr 147, 148–153; Vic rr 7.09–7.14; WA O 10 r 9(2)–(5). 353. NSW rr 11.9–11.11; NT rr 7.08–7.09; Tas rr 147, 148–153; Vic rr 7.09–7.14. 354. WA O 10 rr 9–10. 355. FCt r 10.46; ACT r 6509; NSW r 11.6; NT r 7.03; SA r 40H; Tas r 147H; Vic r 7.03; WA O 10 r 10(3)(a). 356. ACT r 6509(1); Qld r 129(1); SA r 41(2). 357. Qld r 129(2).

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Conclusion 2.102  The statutory regimes for the interstate or international service of initiating process have expanded the extraterritorial jurisdiction of Australian courts significantly. All practical limitations on a plaintiff ’s ability to have initiating process served on a person in another state or territory have been eliminated by the Federal Court’s jurisdiction over all persons in Australia and its external territories, and by the enactment of the Service and Execution of Process Act 1992. The Trans-Tasman Proceedings Act has likewise eliminated practical limitations on the service of Australian process in New Zealand. Further, the more gradual reform of the rules of the superior courts has increased the grounds on which those courts will allow service to be made on a person outside Australia. 2.103  While, as the discussion in this chapter shows, there continues to be some variation in the rules of international jurisdiction available for the different federal, state and territory superior courts, Australia was an enthusiastic participant in the efforts of the Hague Conference on Private International Law to develop an international convention on jurisdiction, which was intended to emulate the success of the European Community’s scheme for jurisdiction and judgments. Initially, that convention was intended to have a broad scope, covering most civil and commercial matters, but due to fundamental international differences about acceptable bases of jurisdiction, the original convention failed. A more modest Convention on Choice of Court Agreements was agreed in 2005.358 This is also a ‘double convention’, allowing the automatic recognition and enforcement of any judgment made in the exercise of the convention’s jurisdiction.359 That convention was based on and inspired by the international success of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention), which has led to a significant increase in the use of international commercial arbitration. The New York Convention is described in detail in Chapter 6. It is likely that Australia will accede to the Hague Choice of Court Convention in the near future.360 Some of its 358. Convention on Choice of Court Agreements, 30 June 2005, Hague, No 37 (entered into force 1 October 2015). At the time of writing, in April 2018, this convention had been ratified by Mexico, the European Union (meaning that the Convention has entered into effect in all member state of the European Union), and Singapore. The United States, China, Ukraine and Montenegro had signed it. 359. R Garnett, ‘The Internationalisation of Australian Jurisdiction and Judgments Law’ (2004) 25 Australian Bar Review 205 at 208–25. 360. The federal parliament’s Joint Standing Committee on Treaties recommended in November 2016 that Australia should accede to this convention: Joint Standing Committee on Treaties, Parliament of Australia, Implementation Procedures for Airworthiness — USA; Convention on Choice of Courts — Accession; GATT Schedule of Concessions — Amendment; Radio Regulations — Practical Revision (Report No 166, November 2016) at [3.21]. At the time of writing in April 2018, the Attorney-General’s Department was preparing drafting instructions for the International Civil Law Bill, by which it is intended that this convention will be brought into effect in Australia. For comment on the convention and its possible effect in Australia, see R Garnett, ‘The Hague Choice of Court Convention: Magnum Opus or Much Ado About Nothing?’ (2009) 5 Journal of Private International Law 161; M Keyes, ‘Jurisdiction under the Hague Choice of Courts Convention: Its Likely Impact on Australian Practice’ (2009) 5 Journal of Private International Law 181; BA Marshall and M Keyes, ‘Australia’s Accession to the Hague Convention on Choice of Court Agreements’ (2017) 41 Melbourne University Law Review 246; A Mills, ‘The Hague Choice of Court Convention and Cross-border Commercial Dispute Resolution in Australia and the Asia-Pacific’ (2017) 18 Melbourne Journal of International Law 1.

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provisions clearly influenced the provisions relating to the effect to be given to exclusive choice of courts agreements in the Trans-Tasman Proceedings Act 2010 (Cth), as will be described in Chapter 4. 2.104  Even if a court has a prima facie ability to exercise jurisdiction — whether at common law or under the Service and Execution of Process Act, the Trans-Tasman Proceedings Act, the cross-vesting legislation or the rules of court — the person served might have a defence that requires the court to conclude that it does not have jurisdiction. The two most common limitations on the court’s jurisdiction are that the plaintiff ’s claim relates to a foreign immovable, and that the defendant proves the right to foreign state immunity. Both limitations are discussed in Chapter 3. 2.105  Given the recent expansion of extraterritorial jurisdiction, it is not surprising that over the same period there has been a related emphasis on considerations that can lead a court, in the exercise of its discretion, to decline a jurisdiction it actually has the right to exercise. Here, even if jurisdiction is established, the court might still refuse to hear the case. In multi-state cases, these considerations include the various species of forum non conveniens, lis alibi pendens, and the existence of a forum clause in a contract requiring the dispute to be determined in another court. As seen, in actions brought under the rules of court against a person outside Australia, the plaintiff must show that these considerations would not lead the court to decline jurisdiction before the court will grant leave to serve or proceed. However, there is usually still some opportunity for the defendant to argue against the exercise of jurisdiction by raising these considerations after having been served. In actions brought against a person in another state or territory, there are similar opportunities to have proceedings stayed or transferred to another court. These are discussed in Chapter 4.

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Chapter 3 Jurisdiction: Exceptions and Immunities Introduction 3.1  There are cases where a court that would have personal jurisdiction under the rules set out in Chapter 2 does not exercise it. This is either because the circumstances of the case are such that, for reasons other than those rules of personal jurisdiction, the court lacks jurisdiction over the subject matter of the case or the circumstances are such that the court has a right to exercise jurisdiction but, in the exercise of a discretionary power, declines to do so. The latter circumstances are considered in Chapter 4. The former can arise in three different circumstances: foreign immovables; foreign state immunity; and diplomatic and consular immunity.1 All three issues are discussed in this chapter.

Foreign immovables The Moçambique principle 3.2  In all states except New South Wales, and in the Australian Capital Territory, a court has no jurisdiction in certain cases involving immovable property outside Australia. The rule is ancient, but took its present shape in British South Africa Co v Companhia de Moçambique.2 There, it was established that the rule was one of substance, denying a court in England any right to hear or determine a case involving either the title to or possession of land outside England, or a question of trespass to land outside England. The Moçambique principle still encompasses both propositions. However, it has been qualified and adjusted after a century of adjudication and legislative development.3 As a result, it remains uncertain to what extent actions other than trespass to land are excluded from the court’s jurisdiction. It is also uncertain whether, or to what extent, the Moçambique principle embraces actions 1.

2. 3.

The ‘act of state’ doctrine, which focuses on the nature of governmental acts rather than, as for foreign state immunity, the identity of the defendant, and the possible non-justiciability of certain claims implicating acts of foreign states, are not considered. See M Davies, A Bell and P Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, Sydney, 2014, pp 254–60; R Garnett, ‘Foreign States in Australian Courts’ (2005) 29 Melbourne University Law Review 704 at 714–31. [1893] AC 602. For a discussion of the rule and its development, see W R Johnson, ‘The Mozambique Rule and the (Non) Jurisdiction of the Supreme Court of Western Australia over Foreign Land’ (2003) 31 University of Western Australia Law Review 266.

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concerning immovable property other than land. There seems real doubt that, in Australia, the principle applies in proceedings in a superior court when the immovable property is in another state or territory. The Moçambique principle no longer applies in New South Wales at all and has only limited operation in the Australian Capital Territory. 3.3  The Moçambique principle denies a court in the forum the power to hear or determine any case in which it would be required to determine a person’s title to land outside the forum state or a person’s right to the possession of land outside the bounds of the forum.4 It also denies a court in the forum the power to hear or determine any action for trespass to land outside the forum state even when no question of title to or possession of land outside the forum arises. These two propositions lie at the centre of the principle. It is also likely, however, that other actions that depend on questions of title, possession or trespass are excluded from the jurisdiction of the forum’s courts.5 These include an application for an injunction to restrain a trespass,6 an action for conspiracy to commit a trespass, and any action in negligence or nuisance that requires a determination of a question of title or possession.7 In Australia, the courts have been prepared to extend the principle further and have denied jurisdiction merely because the action concerned land outside the forum, even though no question of title, possession or trespass arose. Thus, in Commonwealth v  Woodhill,8 the High Court held that the Supreme Court of New South Wales  had no jurisdiction to determine a claim for compensation for a federal resumption of land in the Jervis Bay Territory, even though no question of the Federal Government’s title to or possession of the land was involved. It may, nevertheless, be that the broader reading of the principle in Woodhill is no longer favoured. 3.4  The Moçambique principle was considered in more detail again in Dagi v Broken Hill Proprietary Co Ltd (No 2).9 In this case, the plaintiffs sought damages in the Supreme Court of Victoria for negligence and nuisance. They alleged that the defendant company had caused damage to their homes and polluted their drinking water by mismanagement of waste from the Ok Tedi mine in Papua New Guinea. Byrne J strongly reiterated the core propositions of Moçambique, and held that any claim that in substance related to a question of title to, possession of, or trespass to land in Papua New Guinea, could not be heard. However, in Dagi (No 2) Byrne J did hold that jurisdiction existed to determine claims in negligence in which it was alleged that the plaintiff ’s customary use of and amenity to water was affected by the mine. The distinguishing feature was whether a question of title to or possession of land was the ‘gravamen’ of the proceedings, or whether it was merely incidental to the claim made by the plaintiff. The decision shows that the Moçambique principle still does not apply when no question of title, possession or trespass arises.10

4. 5. 6. 7. 8. 9. 10.

Inglis v Commonwealth Trading Bank (1972) 20 FLR 30. Hesperides Hotels Ltd v Muftizade [1979] AC 508 at 536. Corvisy v Corvisy [1982] 2 NSWLR 557. Hesperides Hotels Ltd v Muftizade [1979] AC 508 at 536. (1917) 23 CLR 482. [1997] 1 VR 428. See also Re Clunies-Ross; Ex parte Tottendell (1987) 72 ALR 241.

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3.6

3.5  In Australia, in the High Court decision in Potter v Broken Hill Proprietary Co Ltd,11 the Moçambique principle was applied to deny jurisdiction to hear or determine an action relating to the infringement of a patent granted in another state. One reason given by the court was that a patent is a monopoly right granted by, say, the sovereign of Ruritania and therefore cannot be moved — is ‘immovable’ — from Ruritania.12 Another reason given in Potter for forum abstention in the area of foreign intellectual property rights was the act of state doctrine; namely, that the forum courts will not adjudicate upon the acts of a foreign state within its own territory.13 The Potter decision has been relied upon, in both of the above aspects, to dismiss actions brought for breach of foreign copyright and infringement of a foreign trade mark.14 More recently, however, it has been questioned whether these intellectual property rights should be considered of the same immovable quality as a patent and, even more emphatically, whether the bar on adjudication of foreign intellectual property rights should be limited to cases in which the validity of registered rights (patents and trade marks) is involved as opposed to where infringement of such rights or any aspect of non-registered rights is present.15 The High Court has indicated that it has reserved ‘for further consideration’ the standing of the Potter decision.16 3.6  At least so far as the jurisdiction of the state and territory Supreme Courts is concerned, it appears likely that the Moçambique principle no longer applies where the land or immovable is situate in another state or territory. Under the cross-vesting scheme, the Supreme Court of any state or territory has the jurisdiction of the Supreme Court of any other state or territory. Hence, the jurisdiction that is exercisable by the Supreme Court of Tasmania in questions of title to land in Tasmania is also invested in the Supreme Court of Western Australia under s 4(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Tas). The latter court should therefore be able to determine a case concerning title to, possession of, or trespass to land in another state or territory, at least in a matter arising in state jurisdiction. However, where the matter arises in federal jurisdiction (such as an action between residents of different states) there is no ‘state matter’ capable of being cross-vested in another state or territory court under the Act.17 In such a case, s  80 of the Judiciary Act  1903 (Cth) applies the Moçambique rule as part of the common law of Australia in all Australian jurisdictions except New South Wales and the Australian Capital Territory.18 Important to this position is the finding in Moçambique that the rule is one of subject

11. 12. 13. 14. 15.

16. 17. 18.

(1906) 3 CLR 479. At 494 (Griffith CJ). At 504–5 (Barton J) and 510 (O’Connor J). Tyburn Productions Ltd v Conan Doyle [1991] Ch 75. In support of this more limited view, see Lucasfilm Ltd v Ainsworth [2012] 1 AC 208; KK Sony Computer Entertainment v Van Veen (2006) 71 IPR 179 (NZHC) (in both cases, breach of foreign copyright admissible); Stewart v  Franmara Inc (No 2) [2012] NZHC 1771 (breach of foreign patent admissible); see  generally R Garnett, ‘Enhanced Enforcement of IP Rights in Transnational Cases in Australia’ (2017) 27 Australian Intellectual Property Journal 114. Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 520; [2002] HCA 10; see also the comments in Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 at [49]. Uhlmann v Harris (No 2) [2018] QSC 28 at [10]–[11]. At [33], [38].

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matter and not personal jurisdiction,19 for, while there are doubts as to whether the personal jurisdiction of the Supreme Courts has been cross-vested, there is no doubt that the subject matter jurisdiction of the Supreme Courts has been.20 Note, however, that even if the idea that Moçambique has been abrogated in Supreme Court jurisdictions for claims relating to interstate immovables is accepted, the Moçambique principle would continue to deny the inferior courts of the states and territories (except the Australian Capital Territory and New South Wales) any jurisdiction in cases concerning title to, possession of, or trespass to land in another state or territory.

Australian Capital Territory 3.7  The Australian Capital Territory has introduced a partial modification of the Moçambique principle.21 It allows an Australian Capital Territory court to deal with cases involving ‘land or other immovable property’ outside the territory, although the Act does not empower a court to judge ‘upon title to, or right to the possession of ’ land or other immovables outside the territory.22 The principles of forum non conveniens are still applicable as discretionary limits on the exercise of jurisdiction in these cases.23 This brings the Australian Capital Territory position close to that in the United Kingdom, where there is a similar partial modification of the Moçambique principle.24 The legislation seems to bring situations like that of Commonwealth v  Woodhill25 into the jurisdiction of the territory’s courts. If, however, even in actions for trespass or conspiracy to commit a trespass, title to or possession of land outside the territory had to be considered, the court could not deal with the case. Nevertheless, it should be noted that the Act merely provides that a court is not to be taken to have jurisdiction in questions of title or possession of land or immovables outside the territory by reason of the Act.26 If, for instance, the territory’s Supreme Court can hear questions concerning the title to or possession of land elsewhere in Australia under the cross-vesting scheme,27 or the Moçambique principle were to be abrogated by common law adjudication,28 the legislation would not prevent the territory Supreme Court from exercising the larger jurisdiction it would therefore have gained.

New South Wales 3.8  The Moçambique principle was abrogated in New South Wales in 1989.29 In that state, a court will only refuse to hear and determine an action concerning land or immovables outside New South Wales  if it considers that it is not an appropriate court to hear the 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29.

[1893] AC 602 at 629. See 2.28–2.36. Civil Law (Wrongs) Act 2002 (ACT) s 220. Civil Law (Wrongs) Act 2002 (ACT) s 220(1)–(2). Civil Law (Wrongs) Act 2002 (ACT) s 220(3); see 4.3 and 4.32–4.56. Civil Jurisdiction and Judgments Act 1982 (UK) s 30(1). (1917) 23 CLR 482; see 3.3. Civil Law (Wrongs) Act 2002 (ACT) s 220(2). See 3.6. See 3.11. Jurisdiction of Courts (Foreign Land) Act 1989 (NSW) s 3.

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proceedings. Such an outcome was reached in Du Bray v McIlwraith, where the court refused to make an order for possession of foreign land for the reason that such an order would not be enforced in the foreign country. 30

31

Personal actions relating to immovables 3.9  There are a number of actions in which title to or possession of land outside the forum is relevant, but which fall outside the Moçambique principle and can be heard by a court of appropriate jurisdiction in the forum.32 Among these are actions arising out of a contract dealing with an immovable outside the forum;33 actions in quasi-contract that concern an immovable outside the forum;34 actions for specific performance of a contract dealing with an immovable outside the forum;35 actions alleging the existence of a trust in respect of an immovable outside the forum;36 actions alleging breach of a fiduciary obligation in the management of an immovable outside the forum;37 and actions alleging fraud in the management of an immovable outside the forum.38 The common feature of all these actions is that the plaintiff is attempting to enforce a personal legal or equitable obligation on the part of the defendant. Even though a question of title or possession might be incidental to the action, it is not its predominant feature. A case dealing with this issue was Nudd v Taylor.39 In this case, the defendant had filed a counterclaim that asserted her right to a share in the proceeds of sale of a number of properties in California. The success of the counterclaim depended on demonstrating a beneficial interest in the properties, but doing so meant the court would have to determine a question concerning a foreign immovable. The Supreme Court of Queensland considered the possibility that the defendant could classify her claim as the enforcement of an equitable obligation, and therefore as an exception to the Moçambique principle. However, a further complication was that the plaintiff was not within the court’s jurisdiction. It was held that, in the circumstances, the counterclaim raised an equitable obligation which therefore did not deprive the court of jurisdiction and that, as the counterclaim arose in a broad sense from the initial claim filed by the plaintiff, the plaintiff had submitted himself to the jurisdiction of the court. The court was willing to take a broad view of the exceptions to the Moçambique principle in order to do justice between the parties.40 In Burt v Yiannakis,41 Asher J of the High Court of New Zealand recognised the existence of a personal exception to the Moçambique rule, but refused to apply the exception to a claim for a constructive trust based on contributions to 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41.

Jurisdiction of Courts (Foreign Land) Act 1989 (NSW) s 4. [2009] NSWSC 888. Petrotimor Companhia de Petroleos SARL v Commonwealth (2003) 197 ALR 461 at 472; [2003] FCAFC 3. British South Africa Co v De Beers Consolidated Mines Ltd [1910] 2 Ch 502. Nissan v Attorney-General [1970] AC 179. Penn v Lord Baltimore (1750) 1 Ves Sen 444; 27 ER 1132. Richard West Partners (Inverness) Ltd v Dick (1969) 2 Ch 424; Nudd v Taylor [2000] QSC 344; Schumacher v Summergrove Estates Ltd [2012] NZHC 3177 (reversed on different grounds: [2013] NZHC 1387). Dawson v Perpetual Trustee Co Ltd (1953) 89 CLR 138. Lord Cranstown v Johnstown (1796) 3 Ves 170; 30 ER 952; Singh v Singh (2009) 253 ALR 575; [2009] WASCA 53. [2000] QSC 344. At [28]. [2015] NZHC 1174.

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foreign property. Such an action was ‘proprietary’ in nature and so distinct from a claim for breach of fiduciary duty or specific performance of a contract. 3.10  Questions of title or possession do arise directly in applications for a grant of probate or letters of administration. The courts have, nevertheless, been prepared to exercise jurisdiction in these cases, even where the estate includes immovable property outside the forum.42 The reason is that the Moçambique principle originated in the common law courts and was a common law rule. Questions of probate and administration are matters of ecclesiastical and equitable jurisdiction, and the rule therefore was inapplicable when these jurisdictions were being exercised.

Reform 3.11  The simple fact that the Moçambique principle was, and remains, applicable only for common law claims, and was never thought worth replicating in equitable and ecclesiastical jurisdictions, itself suggests that it might be of limited utility. There is little scholarly support for maintaining the principle. In this vein, Johnson has argued for its abrogation, principally relying on the rule’s origin in limited English rules for deciding the venue of litigation dealing with land claims and the imprecision of exceptions to the principle.43 Certainly, any concerns about the appropriateness of courts hearing claims relating to foreign immovables can now be resolved by principles of forum non conveniens. In Regie Nationale des Usines Renault SA v  Zhang,44 Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ said that the continuing authority of the Moçambique principle would be reserved for further consideration ‘in an appropriate case’.45 Renault was an appeal in an application to set aside service on the ground of forum non conveniens,46 and involved a personal injuries claim for a wrong alleged to have occurred in France.47 There was no question of immovable property even remotely connected to the issues of the case, which raises the question of why Moçambique was even mentioned. It does suggest, though, that these judges are contemplating whether the common law of Australia has reached the point where the Moçambique principle can be dispensed with.

Foreign state immunity 3.12  There is a longstanding immunity from jurisdiction for foreign sovereigns or states derived from the principles of public international law.48 In Australian law the topic is now governed exclusively by the Foreign States Immunities Act 1985 (Cth), which commenced on 1 April 1986. 42. 43. 44. 45. 46. 47. 48.

Re Duke of Wellington [1946] Ch 118; Re Constantinou [2013] 2 Qd R 219; [2012] QSC 332. Johnson, above n 3, at 291–2. (2002) 210 CLR 491; [2002] HCA 10. At 520. Note, however, that in Singh v Singh (2009) 253 ALR 575; [2009] WASCA 53 at [21] it was suggested that until the High Court reviews the Mocambique rule it is ‘advisable to treat it as good law’. See 4.3 and 4.32–4.56. See 18.2. For an argument that foreign state immunity should be abolished as a separate doctrine and actions against foreign states resolved solely by principles of private international law, see R Garnett, ‘Should Foreign State Immunity Be Abolished?’ (1999) 20 Australian Yearbook of International Law 175.

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3.15

3.13  Like any question of jurisdiction, the existence or otherwise of foreign state immunity must be determined before a court can consider the merits of the proceedings.49 It is not essential, however, that the defendant actually plead the immunity before the court is required to decide this preliminary issue. If a court becomes aware that the defendant is entitled to foreign state immunity, it must ensure the immunity is recognised and given effect.50 However, just how immunity is given effect depends on the point reached in the proceedings. Thus, the court can set aside service at any time before judgment or, if it becomes aware of the immunity after rendering judgment, it can set the judgment aside.51 3.14  The general rule is that a foreign state is immune from the jurisdiction of any court in Australia.52 The rule is subject to some significant exceptions. This means that the Foreign States Immunities Act effectively states a theory of restrictive state immunity; that is, there are some actions against a foreign state that are not subject to the immunity. The theory of restrictive state immunity was effectively the position reached by the common law in the 1980s.53 However, the statement of the general rule in the Act means there are two important questions to determine before foreign state immunity can be established: (1) what is a ‘foreign state’ for the purposes of the Act; and (2) what are the exceptions to the general rule of immunity?

Foreign states 3.15  The term ‘foreign state’ is defined in s 3 of the Act as including any independent sovereign state in or outside the Commonwealth of Nations. To this are added places attached to those states that have a separate status, as well as the constituent provinces, states, territories or other subdivisions of foreign federal or composite states. The states and territories of Australia are not included. The European Union is also probably not a foreign state for the purposes of the Act.54 In addition, the head of any such foreign state (including a governor-general or governor) in the exercise of their public functions and the executive government of a foreign state are deemed to be a foreign state. The latter will also embrace any department of a foreign government. Individuals (other than a head of state) may also be entitled to foreign state immunity if considered to be part of the foreign state, even if no longer serving in the government.55 If the Minister for Foreign Affairs certifies that an entity or person is a foreign state for the purpose of the Foreign States Immunities Act, that certificate is conclusive of the status.56 However, if there is no certificate or merely an ambiguous one, it is still possible to prove that an entity or person is included in the definition of ‘foreign state’ by the tendering of ordinary evidence.

49. 50. 51. 52. 53. 54. 55. 56.

JH Rayner (Mincing Lane) Ltd v Dept of Trade and Industry [1989] Ch 72 at 193–4. Zhang v Zemin (2010) 79 NSWLR 513; [2010] NSWCA 255 at [31], [48]. Foreign States Immunities Act 1985 (Cth) s 38. For a general discussion of the Act, see PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240; [2012] HCA 33. Foreign States Immunities Act 1985 (Cth) s 9. Playa Larga v I Congreso del Partido [1983] 1 AC 244. JH Rayner (Mincing Lane) Ltd v Dept of Trade and Industry [1989] Ch 72. Zhang v Zemin (2010) 79 NSWLR 513; [2010] NSWCA 255 at [65]–[71]. Foreign States Immunities Act 1985 (Cth) s 40.

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3.16  The Foreign States Immunities Act also refers to a body called a ‘separate entity’.57 This is a person or corporation that is an agency or instrumentality of a foreign state, though not a part of its executive government. In determining whether a person or body is an agency or instrumentality of a foreign state it is necessary to consider whether the entity is carrying out the foreign state’s functions or purposes. While ownership and control of the entity by the foreign state will be important factors in resolving the question, neither is determinative.58 For example, a government-owned trading corporation,59 a central bank60 or a state-owned airline61 can be separate entities eligible for immunity. As will be seen, however, the scope of immunity for a separate entity is narrower than it is for a foreign state.62

Exceptions to immunity 3.17  There are a number of express exceptions to the general immunity from jurisdiction enjoyed by a foreign state or separate entity. The first is submission, which is established by express agreement to submit to the jurisdiction of the court in Australia.63 It can also be established by conduct. The conduct sufficient to constitute submission includes the initiation of related proceedings, the taking of any step in the proceedings that is not an assertion of immunity, and an application for costs or an assertion of an interest in property.64 For example, filing a statement of defence to the merits would constitute a submission to jurisdiction or waiver of immunity, but filing a joint consent memorandum seeking an extension of time for filing a defence would not.65 These rules are merely specific examples of the general principles by which jurisdiction is established by submission.66 There is provision for a foreign state or separate entity to establish immunity after submission by conduct has occurred if this took place in ignorance of the immunity.67 3.18  Immunity is not available for proceedings that concern commercial transactions.68 These include any commercial, trading, business, professional or industrial activity.69 In Victoria Leasing Aircraft Ltd v United States of America,70 the Victorian Court of Appeal held that, in determining whether the matter in dispute concerned a commercial transaction, it was necessary to consider — in Buchanan JA’s words — ‘the transaction viewed as a 57. Foreign States Immunities Act 1985 (Cth) s 3(1). 58. PT Garuda Indonesia Ltd v  Australian Competition and Consumer Commission (2011) 192 FCR 393; [2011] FCAFC 52 at [42]–[48] (Lander and Greenwood JJ); [127]–[128] (Rares J). 59. Czernikow Ltd v Rolimpex [1979] AC 351; Kuwait Airways Corp v Iraqi Airways Co [1995] 3 All ER 694. 60. Trendtex Trading Corp v Central Bank of Nigeria [1977] QB 529. 61. PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240; [2012] HCA 33. 62. See 3.21. 63. Foreign States Immunities Act 1985 (Cth) s 10(2)–(3). 64. Foreign States Immunities Act 1985 (Cth) s 10(6)–(8). 65. X v Attorney-General of New Zealand [2017] 3 NZLR 115 at [24]. 66. See 2.13–2.16. 67. Foreign States Immunities Act 1985 (Cth) s 10(9)(a). 68. Foreign States Immunities Act 1985 (Cth) s 11(1). 69. Foreign States Immunities Act 1985 (Cth) s 11(3). 70. (2005) 218 ALR 640; [2005] VSCA 76.

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3.19

whole’. The transaction in question in Victoria Leasing was an alleged agreement between the Governments of Nauru and the United States, by which Nauru agreed to reform its laws relating to money laundering, passports, and the transfer of money for terrorist organisations, if the United States provided money to Nauru to assist in meeting its loan repayments and to ensure that a major corporate lender gave it more time to repay its borrowings. Although the alleged agreement between the governments therefore involved a promise to influence a creditor, overall it ‘concerned governmental functions’ such as ‘diplomatic and foreign relations, national security, intelligence, terrorism and the reform of banking laws and passport abuse’.72 The alleged agreement therefore did not amount to a commercial transaction, and was within the foreign state immunity that the United States could validly claim. It has been argued that the approach taken in Victoria Leasing contrasts with the House of Lords’ approach in Kuwait Airways Corp v Iraqi Airways Co,73 where the majority focused on discrete aspects of the ‘transaction’ to include some within the immunity but to exclude others.74 The ‘transaction’ in this case was the seizure by the Iraqi Government — in the course of the Gulf War — of commercial airliners owned by Kuwait Airways, and then the vesting by an Iraqi decree of the aircraft in Iraqi Airways. Lord Goff, with whom Lords Jauncey and Nicholls agreed,75 held that the acts of seizure and removal of the aircraft were governmental acts protected by foreign state immunity. However, the acts of retention and use by Iraqi Airways after receiving the aircraft were commercial acts that could be the subject of a claim in conversion against the company.76 Lords Mustill and Slynn of Hadley dissented on this point and believed that the events as a whole had to be classified. Their Lordships would have given foreign state immunity for the whole claim.77 Garnett points out that the dissenting speeches in Kuwait Airways are more compatible with the decision in Victoria Leasing,78 and until the High Court of Australia says differently, Victoria Leasing must be considered as representing the law in Australia. Accordingly, it recognises a broader reading of foreign state immunity. 71

3.19  Another case in which immunity was imposed involving Nauru was Bannon v Nauru Phosphate Royalties Trust (No 1).79 In Bannon, the claimant sued the Trust for breach of his employment contract and the Trust counterclaimed for breach of fiduciary duty. The claimant’s defence to the counterclaim was that under Nauruan legislation80 he  had no personal liability for any acts performed within his powers and duties as Secretary of the Trust and was also entitled to be indemnified by the Nauruan Government for any liability incurred. A third party notice seeking indemnification was filed against Nauru but was dismissed on the ground of foreign state immunity. The court found, with little reasoning,

71. 72. 73. 74. 75. 76. 77. 78. 79. 80.

At 645. At 646. [1995] 3 All ER 694. For other aspects of the case, see 8.59 and 8.65–8.67. See Garnett, above n 1, at 710. [1995] 3 All ER 694 at 717, 720. At 710–11. At 719, 722. See Garnett, above n 1, at 711. [2016] VSC 425. Nauru Phosphate Royalties Trust Act 1968 s 32A.

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that the indemnity provision involved political and governmental activity rather than commercial acts. 3.20  In PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission81 the commission brought an action for a civil penalty against a foreign state-owned airline in respect of alleged anti-competitive arrangements and understandings arising from the use of surcharges on commercial freight services in Australia. The High Court held that the proceedings involved a commercial transaction even though they did not concern the enforcement of private law rights under any freight contract. The arrangements and understandings that Garuda allegedly entered into were dealings of a commercial, trading and business character. The court also found that for the commercial transaction exception to apply, the proceeding instituted against the foreign state need not be brought by a party to the transaction in question. 3.21  Expressly mentioned in the Foreign States Immunities Act as commercial transactions are: (1) a contract for the supply of goods or services; (2) an agreement for a loan or some other transaction for or in respect of the provision of finance; and (3) a guarantee or indemnity in respect of a financial obligation.82 The alleged agreement in Victoria Leasing Aircraft Ltd v United States of America,83 discussed above, did not qualify as a commercial transaction as it amounted to a promise either to influence a creditor to give more time for the repayment of a loan or to provide money to make those loan repayments. The definition did not cover ‘a promise to prevent a creditor enforcing rights under a security’.84 If, however, the transaction is a commercial transaction within the meaning of the Act, foreign state immunity is still available when the parties to the proceeding are governments or the parties agree to immunity. The first exception is not available to a separate entity that would, in this case, be denied immunity.85 Foreign state immunity is also still available if the transaction is a payment in respect of a grant, scholarship, pension or something of the same kind.86 In Australian Federation of Islamic Councils Inc v Westpac Banking Corp,87 a gift payment made on behalf of a foreign state to assist Islamic schools was held to be within the scope of the immunity. By contrast, an agreement by which a foreign government (Saudi Arabia) promised the Australian International Islamic College Board to meet the costs of educating the children of Saudi scholarship recipients studying at the college was held to be a commercial transaction and not a payment in respect of a scholarship.88 The court relied on the report of the Australian Law Reform Commission (Foreign State Immunity, Report No 24) upon which the Act was based. According to the report, ‘the object of the scholarship exception was to avoid litigation between foreign states conferring benefits and the recipients of those benefits. It was not concerned with commercial arrangements 81. 82. 83. 84. 85. 86. 87. 88.

(2012) 247 CLR 240; [2012] HCA 33. Foreign States Immunities Act 1985 (Cth) s 11(3). (2005) 218 ALR 640; [2005] VSCA 76; see also 3.18. At 645. Foreign States Immunities Act 1985 (Cth) s 22. Foreign States Immunities Act 1985 (Cth) s 11(2)(b). (1988) 17 NSWLR 623. Australian International Islamic College Board Inc v  Kingdom of Saudi Arabia (2013) 298 ALR 655; [2013] QCA 129.

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between foreign states and those contracted to provide the benefits in question’. For all other proceedings concerning commercial transactions, there is no immunity.90 89

3.22  Recently, the High Court of Australia in Firebird Global Master Fund II Ltd v Republic of Nauru91 had to consider an action to register a Japanese judgment in Australia under s 9 of the Foreign Judgments Act 1991 (Cth) against a foreign state, Nauru. The plaintiff judgment creditor issued a summons to register the judgment, which was not served on Nauru, and judgment was entered against the defendant. The court first rejected Firebird’s argument that an application to register a foreign judgment was not a ‘proceeding’ within the general immunity provision in s 9 of the Foreign States Immunities Act 1985 (Cth). The court then found Nauru to be not immune from the jurisdiction for the purposes of registering the Japanese judgment on the basis that such a proceeding ‘concerned’ a commercial transaction under the exception in s  11 of the 1985 Act. The commercial element was established by showing that the underlying transaction upon which the judgment was based was ‘commercial’. The court considered it desirable to take a broad approach to the commercial transactions exception. As discussed below,92 however, the court ultimately found Nauru to be immune from execution of the judgment because the property against which execution was sought was not commercial. 3.23  There is also no immunity for actions relating to a contract of employment where the contract is made in Australia or to be performed in Australia.93 Immunity is, however, restored where the employee is a national of the foreign state but not a permanent resident of Australia at the time that the contract is made.94 Immunity is also reimposed where the employee is: (a) a member of the diplomatic staff of a mission as defined in Art 1(d) of the Vienna Convention on Diplomatic Relations (1961) (VCDR) (that is, a member of staff having diplomatic rank); or (b) a ‘consular officer’ as defined in Art 1(d) of the Vienna Convention on Consular Relations (1963) (VCCR) (that is, a member of staff having consular rank).95 Immunity also applies where: (i) the employee is a member of the administrative and technical staff of a mission as defined in Art 1(f) of the VCDR; or (ii) a ‘consular employee’ as defined in Art 1(e) of the VCCR unless the member or employee was, at the time the contract was made, a permanent resident of Australia.96 3.24  There is no foreign state immunity for actions relating to any personal injury or damage to property caused by an act or omission in Australia.97 3.25  Immunity is also denied for a large range of matters concerning property. These include any proceeding in respect of a foreign state’s or separate entity’s ownership, 89. 90. 91. 92. 93. 94. 95. 96. 97.

At [11]. Cf Holland v Lampen-Wolfe [2000] 3 All ER 833. (2015) 258 CLR 31. See 3.27. Foreign States Immunities Act 1985 (Cth) s 12(1); see generally R Garnett, ‘The Rights of Diplomatic and Consular Employees in Australia’ (2018) 31 Australian Journal of Labour Law 1. Foreign States Immunities Act 1985 (Cth) s 12(3). Foreign States Immunities Act 1985 (Cth) s 12(5). Foreign States Immunities Act 1985 (Cth) s 12(6). Foreign States Immunities Act 1985 (Cth) s 13.

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possession or use of immovable property in Australia; copyright, patents or trade marks used or imported into Australia for the purpose of a commercial transaction; an interest in a trust; a gift; or a disposition of property under a will.98 3.26  By contrast, it has recently been held by courts in a number of common law countries, including Australia, that in the absence of an express statutory exception to immunity (such as those mentioned above), foreign states enjoy immunity for acts of torture. In Zhang v  Zemin,99 the New South Wales  Court of Appeal followed a decision of the House of Lords100 to the effect that there are no ‘implied’ exceptions to foreign state immunity under the Act even where the defendant’s impugned conduct, as in the case of torture, would be in violation of principles of public international law.101 Furthermore, a foreign state does not submit to the jurisdiction of Australian courts (and consequently waive immunity) by becoming a State Party to the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. While Art 14(1) of the convention provides that a State Party ‘shall ensure in its legal system that the victim of an act of torture has an enforceable right to fair and adequate compensation’, such a provision does not create a universal civil jurisdiction allowing a victim to sue a foreign state in the domestic courts of any State Party.102 Immunity was also upheld in an action against a former Prime Minister for abuse of power, specifically, inducing breaches of duty by other state officials resulting in torts being committed against the claimant.103

Immunity from execution 3.27  Foreign states also enjoy immunity from execution of judgments104 although such immunity does not extend to the commercial property of the foreign state, which is defined to include ‘property other than diplomatic or military property that is in use by the foreign state concerned substantially for commercial purposes’.105 If funds are to be used for the purposes of government administration, performance of a government’s civic duties and functions to its citizens or for the advancement of the community, the fact that the object is achieved by entering into commercial transactions does not mean that the funds are used for commercial purposes.106 Where property is primarily used for the processing of visa and passport applications for a foreign state, by an agent of the state, it is not commercial.107 All property of separate entities, by contrast, is liable to execution.108

98. 99. 100. 101. 102. 103. 104. 105. 106. 107. 108.

Foreign States Immunities Act 1985 (Cth) ss 14(1)–(2), 15. (2010) 79 NSWLR 513; [2010] NSWCA 255. Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270. See  also Kazemi Estate v  Islamic Republic of Iran [2014] 3 SCR 176 and X v  Attorney-General of New Zealand [2017] 3 NZLR 115. Li v Zhou (2014) 310 ALR 66; [2014] NSWCA 176. Al-Attiya v Bin-Jassim Bin-Jaber Al Thani [2016] EWHC 212 (QB). Foreign States Immunities Act 1985 (Cth) s 30. Foreign States Immunities Act 1985 (Cth) s 32(3). Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31. LR Avionics Technologies Ltd v The Federal Republic of Nigeria [2016] EWHC 8 (QB) at [38]. Foreign States Immunities Act 1985 (Cth) s 35.

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3.30

Diplomatic and consular immunity 3.28  Immunity from the jurisdiction of a court in Australia is recognised for diplomatic and consular officers and the premises of diplomatic missions and consulates. For diplomatic officers and missions, the Diplomatic Privileges and Immunities Act 1967 (Cth) implements the Vienna Convention on Diplomatic Relations 1961. For consular officers and missions, the Consular Privileges and Immunities Act 1972 (Cth) implements the Vienna Convention on Consular Relations 1963. The immunity is available to representatives of Commonwealth and foreign countries, although there is potential for consular immunity to be broader for representatives of declared Commonwealth countries.109 As is the case for foreign state immunity, where it becomes evident to a court that a defendant is entitled to diplomatic or consular immunity, the court should stay the proceeding.110

Diplomatic immunity 3.29  There are four groups of persons who can properly make a claim of diplomatic immunity. The first group is ‘diplomatic agents’, and includes an ambassador or high commissioner, diplomatic staff and the members of their families.111 The second is the administrative and technical staff and the members of their families.112 The third group is the service staff, such as butlers and cooks.113 The fourth group comprises private servants of diplomatic agents. A certificate from the Minister for Foreign Affairs is evidence that a person belongs to one of these classes, but probably does not amount to conclusive proof.114 3.30  The scope of diplomatic immunity depends on the group to which the person claiming the immunity belongs. A ‘diplomatic agent’ is immune from jurisdiction in any civil proceeding unless it relates to:115 • the title to, or possession of, immovable property in Australia; • the person’s private involvement as personal representative or beneficiary in a question of succession to property on death; or • the agent’s professional or commercial actions that do not relate to official functions.116 If the diplomatic agent is a national or permanent resident of Australia, the immunity only protects official acts performed in the course of diplomatic functions.117 Administrative and technical staff have a similar immunity to diplomatic agents, but it is limited to acts

109. Consular Privileges and Immunities Act 1972 (Cth) s 9. No Commonwealth country has been the object of such a declaration. 110. Australian Federation of Islamic Councils Inc v Westpac Banking Corp (1988) 17 NSWLR 623. 111. Convention on Diplomatic Relations 1961 Art 37(1). 112. Convention on Diplomatic Relations 1961 Art 37(2). 113. Convention on Diplomatic Relations 1961 Art 37(3). 114. Diplomatic Privileges and Immunities Act 1967 (Cth) s 14; cf Duff v R (1979) 28 ALR 663 at 695. 115. Convention on Diplomatic Relations 1961 Art 31(1). 116. A claim by a domestic servant employed by the diplomat where human rights abuses have occurred falls within this exception: Reyes v Al-Malki [2017] UKSC 61 (Lords Wilson and Clarke, Lady Hale). See Garnett n 93 above. 117. Convention on Diplomatic Relations 1961 Art 38(1).

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done in the course of their duties.118 If administrative or technical staff are nationals or permanent residents of Australia, this immunity does not extend to members of their families.119 Service staff have immunity for acts done in the course of their duties.120 Private servants who are nationals or ordinary residents of Australia are entitled to immunity in respect of acts done in the course of their duties.121

Consular immunity 3.31  Two groups of persons are entitled to consular immunity: consular officers (including honorary consuls); and administrative and technical staff. Again, the Minister for Foreign Affairs can certify that a person belongs to one of these groups. This constitutes evidence that the person belongs to that group, but probably, again, not conclusive proof.122 3.32  Consular officers are immune from the jurisdiction of a court in Australia for acts done in the course of consular functions.123 They also cannot be punished for refusing to give evidence in any legal proceeding in Australia.124 However, consular officers do not have immunity where the proceedings: (1) arise out of a contract the officer did not enter as agent of the country represented; or (2) brought by a third party for an accident in Australia caused by a vehicle, vessel or aircraft.125 Administrative and technical staff have a similar immunity. However, so long as it does not relate to their official functions or correspondence, they can be punished for refusing to give evidence in other proceedings in Australia.

Duration and waiver 3.33  Diplomatic and consular immunity persists in respect of any acts undertaken in the course of official duties. These can never be the subject of proceedings in a court in Australia.126 For acts done outside the course of official duties but within the scope of the immunity, the immunity lasts while the person holds the diplomatic or consular position in Australia. So, proceedings brought against a person may have to be stayed if, and when, that person assumes a diplomatic or consular position.127 Equally, proceedings against a person for such acts may be brought once that person leaves Australia, or within a reasonable period after that person’s departure.128 3.34  Diplomatic or consular immunity can be waived either by words or by conduct. The country represented can waive immunity for any of its diplomatic or consular officers, and

118. 119. 120. 121. 122. 123. 124. 125. 126. 127. 128.

Convention on Diplomatic Relations 1961 Art 37(2). Diplomatic Privileges and Immunities Act 1967 (Cth) s 11(a). Convention on Diplomatic Relations 1961 Art 37(3). Diplomatic Privileges and Immunities Act 1967 (Cth) s 11(b). Consular Privileges and Immunities Act 1972 (Cth) s 12; Duff v R (1980) 28 ALR 663 at 695. Convention on Consular Relations 1963 Art 43. Convention on Consular Relations 1963 Art 44. Convention on Consular Relations 1963 Art 43. Convention on Diplomatic Relations 1961 Art 39(2); Convention on Consular Relations 1963 Art 55(3). Ghosh v D’Rozario [1963] 1 QB 106. Convention on Diplomatic Relations 1961 Art 39(2); Convention on Consular Relations 1963 Art 53(4).

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this can be given by the express words of the ambassador or high commissioner. No other person can waive this immunity, even if that person is the defendant in the proceedings.130 Again, where a diplomat or consular officer initiates proceedings he or she may not rely on the immunity if required to defend any related counterclaim.131 Waiver of immunity in respect of civil or administrative proceedings shall not be held to be a waiver of immunity in respect of execution of any judgment for which a separate waiver will be necessary.132 129

129. Convention on Diplomatic Relations 1961 Art 32(1)–(2); Diplomatic Privileges and Immunities Act 1967 (Cth) s 7(2); Convention on Consular Relations 1963 Art 45(1)–(2); Consular Privileges and Immunities Act 1972 (Cth) s 9(2). 130. R v Madan [1961] 2 QB 1. 131. Convention on Diplomatic Relations 1961 Art 32(3); Convention on Consular Relations 1963 Art 45(3). 132. Convention on Diplomatic Relations 1961 Art 32(4); Convention on Consular Relations 1963 Art 45(4).

89

Chapter 4 Restraints on Proceedings Introduction 4.1 In Chapter  3, the circumstances in which a court (which would have personal jurisdiction) might lack subject-matter jurisdiction were considered. This chapter considers other limitations on the jurisdiction of courts to deal with litigation. Here, a court clearly is competent to hear the case both in terms of personal and subject-matter jurisdiction. In international and interstate cases, there are almost always at least two courts that are competent to hear the case. Often the parties disagree as to which of those courts should do so. This chapter looks at the circumstances in which, usually by the exercise of a discretion invested in the judge, it is thought appropriate that one court or another not hear the case, even though that court’s competence is accepted. This can occur in two distinct situations. The first concerns cases in which an Australian forum restrains the hearing of a case before the forum court itself. The second deals with the rarer case in which a court in Australia restrains litigants from commencing or continuing with litigation before a foreign court. In international and interstate cases, the parties almost always can litigate in the courts of more than one country. As a result, increasingly, much litigation has simply been undertaken to determine finally where the parties should litigate the merits of the case, and the courts have developed principles which aim to answer this question and to answer it quickly. 4.2  The principles by which proceedings in Australia can be restrained differ in source and emphasis, depending on whether the proceedings involve international or interstate issues. Therefore, international proceedings and interstate proceedings are considered separately below.

International proceedings 4.3  In international proceedings, three considerations affect the court’s decision whether to stay proceedings which have been brought before it. The first is where there is an applicable mandatory law of the forum, which directs the Australian court to retain or decline jurisdiction. The second is whether the parties have contractually agreed to litigate exclusively in a particular court. Finally, if there is no effective mandatory rule and no effective exclusive jurisdiction agreement, the court may decline to exercise jurisdiction on the basis that it is a clearly inappropriate forum, by reference to the principle of forum non conveniens.

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Mandatory rules 4.4  A mandatory rule is one which is intended to be applied, notwithstanding any contrary agreement between the parties. The court lacks any discretion to stay proceedings if there is a forum mandatory rule directing it to stay proceedings, or not to stay proceedings. Most mandatory laws emanate from statute, although it is also possible for a mandatory rule to be derived from the unwritten law. Most mandatory rules are substantive provisions, and their effect and operation in domestic litigation is relatively well understood. Their effect in international litigation is less clear, particularly at the jurisdictional stage. 4.5  The issue for consideration in this section is what effect a mandatory rule might have on the court’s decision whether to stay proceedings, if the defendant challenged the court’s jurisdiction in an international case. The impact of a substantive mandatory rule in resolving the substantive issue in dispute — for example, in an international contract case — is discussed further in Chapters 12, 17 and 18. Usually the question is the extent to which the parties’ contractual agreement undermines the effectiveness of mandatory rules. The courts of the place where the mandatory rule was enacted are less likely to uphold contractual agreements which would have the effect of undermining the application of those mandatory rules, than are the courts of other legal systems. The availability, in most international disputes, of a number of different courts therefore undermines the effectiveness of mandatory rules, and the outcome of a case in which a mandatory rule might be applied can therefore depend on which court takes jurisdiction. What is most often material in ensuring an effective resolution to the particular dispute is determining where the defendant’s assets are located, against which any eventual judgment might be enforced. 4.6  There is a small number of express mandatory rules in Australian legislation relevant to disputes about forum. These rules may direct an Australian court to retain jurisdiction, as in s 11(2) of the Carriage of Goods by Sea Act 1991 (Cth), which provides for the exclusive jurisdiction of the Australian courts in contracts for the international carriage of goods by sea, from any Australian port. This provision states that an agreement between the parties which purports to deprive an Australian court of jurisdiction in such cases is ineffective. In substance, this directs that in Australian litigation, the court must not decline to exercise its jurisdiction. 4.7 In Chapter  2, the effect of the Trans-Tasman Proceedings Act  2010 (Cth) was described, in relation to the personal jurisdiction of Australian courts in litigation involving New Zealand. The Act also contains provisions relating to jurisdictional challenges in proceedings where New Zealand  is the alternative forum. Those provisions apply with exclusive effect, so that any application for a stay of Australian proceedings on forum grounds, where New Zealand is the alternative forum, must be dealt with under the Act.1 The provisions of the Act applicable if the parties have concluded an exclusive choice of court

1.

See  Trans-Tasman Proceedings Act  2010 (Cth) s  21(1). The Act does not deal with, or prevent, staying proceedings on grounds other than forum challenges: s 21(2).

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agreement are based in part on the Hague Convention on Choice of Court Agreements, and therefore only apply to commercial contracts.2 4.8  The Trans-Tasman Proceedings Act  2010 (Cth) provides that where there is an exclusive choice of court agreement3 in favour of an Australian court, an Australian court must not stay proceedings in favour of litigation in New Zealand,4 unless the choice of court agreement is null and void under Australian law,5 including its rules of private international law.6 4.9  Conversely, Australian legislation may direct an Australian court to stay certain proceedings. Such a requirement is found in s  7(2) of the International Arbitration Act 1974 (Cth), which requires that an Australian court must stay proceedings brought in breach of an international arbitration agreement, with very limited exceptions.7 A similar requirement is found in the Trans-Tasman Proceedings Act 2010 (Cth), which requires Australian courts to stay proceedings brought in breach of an exclusive choice of New  Zealand  court agreement,8 subject to very limited exceptions.9 The exceptions in the Trans-Tasman Proceedings Act  2010 (Cth) are very similar to the exceptions to enforcement of arbitration agreements under the New York Convention which are described in Chapter 610 and the case law interpreting those exceptions is likely to be influential in the interpretation of the exceptions to enforcement of choice of court clauses in this context.11

2.

3.

4. 5. 6. 7. 8. 9.

10. 11.

The provisions relating to exclusive choice of court agreements do not apply to consumer and employment contracts: Trans-Tasman Proceedings Act 2010 (Cth) s 20(3)(b), (c). See R Mortensen, ‘Together Alone: Integrating the Tasman World’ in A Dickinson et al, Australian Private International Law for the 21st Century: Facing Outwards, Hart Publishing, Oxford, 2014, pp 131–4. Exclusive choice of court agreement is defined in the Act to mean ‘a written agreement’ that ‘designates the courts, or a specified court or courts, of a specified country, to the exclusion of any other courts, as the court or courts to determine disputes between’ the parties to the proceedings including the ‘matters in issue’ in the proceedings: Trans-Tasman Proceedings Act 2010 (Cth) s 20(3). See Trans-Tasman Proceedings Act 2010 (Cth) s 20(1)(b). This includes claims that the clause is affected by fraud, misrepresentation, and mistake: Z487 Ltd v Skelton [2014] QSC 309. Trans-Tasman Proceedings Act 2010 (Cth) s 20(2A). See Z487 Ltd v Skelton [2014] QSC 309. The exceptions are set out in the International Arbitration Act 1974 (Cth) s 7(2), (5). Trans-Tasman Proceedings Act 2010 (Cth) s 20(1)(a). The five exceptions are where: the exclusive choice of court agreement is null and void under New  Zealand  law (including its rules of private international law); a party to the agreement lacked capacity under Australian law; giving effect to the agreement ‘would lead to a manifest injustice or would be manifestly contrary to Australian public policy’; ‘for exceptional reasons beyond the control of the parties’ the agreement ‘cannot reasonably be performed’; or the New Zealand court has decided not to hear the dispute: Trans-Tasman Proceedings Act 2010 (Cth) s 20(2). These exceptions are very similar to the exceptions in the Hague Choice of Court Agreements Convention (see Article 6; the main difference is that the Convention does not explicitly refer to the rules of private international law of the law of the chosen court as being relevant to determining whether the choice of court agreement is null and void). Section 20(1)(b). The Trans-Tasman Proceedings Act came into effect in October 2013. As at April 2018, there have not been any Australian cases addressing the interpretation and application of the exceptions to enforcement in s  20(2). In In the matter of Douglas Webber Events Pty Ltd, Brereton J did not enforce the choice of New Zealand courts because it did not apply to the plaintiff to Australian proceedings, nor to the issues in dispute in the Australian proceedings: (2014) 291 FLR 173; [2014] NSWSC 1544. In Australian Gourmet

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4.10  An Australian court is constitutionally obliged to give effect to statutory directions to retain or stay proceedings in such cases.12

Jurisdiction agreements 4.11  As already indicated, the parties can expressly agree as to the forum in which proceedings may, or must, be commenced.13 Such agreements are called jurisdiction clauses or agreements, forum clauses, or choice of court agreements.14 They are commonly included in international contracts, and are also used in intranational contracts. As already indicated, a distinction is made between exclusive and non-exclusive jurisdiction agreements.15 An exclusive jurisdiction agreement provides that the parties will litigate only in the courts of a particular place, whether of the forum or a foreign country; whereas a non-exclusive jurisdiction agreement is merely a submission to the jurisdiction of the nominated court, and does not oblige the parties to litigate only in the nominated court. A jurisdiction agreement must be distinguished from a choice of law clause by which the law of the cause for the contract is selected,16 which does not necessarily amount to a submission to the jurisdiction of the courts of the place that gives the proper law of the contract.17 In Chapter 2, it was explained that submission to the jurisdiction of the forum court is effective to establish that court’s competency over the defendant, because the rules of court in all Australian jurisdictions enable service out of the jurisdiction on this basis.18 This chapter focuses on the effect in Australia of jurisdiction agreements if one party challenges the jurisdiction of the Australian court. Jurisdiction agreements in favour of foreign courts may be enforced in two ways: first, the Australian court may stay proceedings brought in breach of a foreign jurisdiction agreement; and second, the court may award damages for the breach of such an agreement. Jurisdiction agreements in favour of the forum may be enforced in three ways: first, by refusing to stay forum proceedings; second, by enjoining the commencement or continuation of foreign proceedings brought in breach of the agreement; and third by the award of damages for breach of contract.

12. 13. 14. 15.

16. 17. 18.

Pastes Pty Ltd v  IAG New Zealand  Ltd the Victorian Court of Appeal held that the defendant could not enforce the choice of court agreement to which it was not a party: [2017] VSCA 155 at [57]. Compagnie des Messageries Maritimes v Wilson (1954) 94 CLR 577 at 585; Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 443. They can also agree on other forms of dispute resolution, including arbitration, which is discussed in detail in Chapter 6. A jurisdiction agreement is different to a choice of law agreement, which selects the applicable law for the contract: see 17.7. Briggs suggested that ‘there is no apparent reason why parties may not, if so advised, make an agreement for the resolution of disputes which is more complex, and better suited to their needs, than would be provided by a plain and simple ‘ “exclusive or non-exclusive’’ template.’: ‘The Subtle Variety of Jurisdiction Agreements’ [2012] Lloyd’s Maritime and Commercial Law Quarterly 364 at 376. Cf D Joseph, Jurisdiction and Arbitration Agreements and Their Enforcement, 3rd ed, Sweet & Maxwell, 2015, p 102. See 17.7–17.13. Van Vogt v  All Canadian Group Distributors Ltd (1969) 71 WWR 535 at 539; Progressive Holdings Inc v Crown Life Insurance Co (2000) 147 Man R (2d) 175. See 2.49.

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4.12  An agreement as to jurisdiction can be decisive in the court’s decision whether to exercise its jurisdiction, if it is exclusive. If the parties have made an agreement as to exclusive jurisdiction, such an agreement should be enforced, absent strong reasons for non-enforcement. As explained above, international arbitration agreements are specifically protected by Australian legislation, which gives effect to the New York Convention. They are discussed in more detail in Chapter 6. The principles relating to the enforcement of arbitration agreements have influenced the treatment of exclusive jurisdiction agreements. 4.13  The policy of most legal systems, including Australia, is to enforce exclusive jurisdiction agreements, subject to certain limitations. The enforcement of jurisdiction agreements is appropriate in the context of international commercial transactions but less readily justified in non-commercial contracts, such as those involving consumers and employees. 4.14  The parties’ agreement as to forum is treated as a separate agreement from the main contract.19 Consequently, an attack on the validity of the main agreement — for example, on the ground that the contract is voidable for misrepresentation — will not invalidate the jurisdiction agreement. It is only where the party seeking to avoid the contractual choice of forum asserts that the choice of forum itself is invalid because their assent to that particular term of the agreement was vitiated that such an argument should be considered.20 Whether the parties have actually concluded a jurisdiction agreement is determined in Australia by the law of the forum.21 If contractual terms including the jurisdiction agreement are readily accessible from a website by clicking on hyperlinks, they will form part of the agreement.22 4.15  The distinction between exclusive and non-exclusive jurisdiction agreements is a question of contractual interpretation. The question is whether the parties are obliged to litigate in the chosen court, if they decide to litigate.23 If so, the agreement is regarded as exclusive. The use of the word ‘exclusive’ in the choice of court agreement is a strong indicator of the parties’ mutual intention; conversely, the failure of the parties explicitly to include the word ‘exclusive’ may be a strong indication that they did not intend the submission to be exclusive.24 4.16  Other relevant factors include the language in which the agreement is expressed. Thus, a forum clause is more likely to be exclusive if ‘disputes’ are to be ‘referred to’, for 19.

20. 21.

22. 23. 24.

This is according to the doctrine of separability, which is well established in international commercial arbitration. It also applies in international litigation: FAI General Insurance Co Ltd v Ocean Marine Mutual (1997) 41 NSWLR 559 at 567. Commonwealth Bank of Australia v White [1999] 2 VR 681; [1999] VSC 262 at [11]; Telesto Investments Ltd v UBS AG (2013) 94 ACSR 29; [2013] NSWSC 503 at [278]. Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 225 per Brennan J; 260–1 per Gaudron J. Wilson and Toohey JJ also applied the law of the forum, without explaining why (at 202) and Deane J agreed with Wilson and Toohey JJ on this point (at 256). See also Venter v Ilona MY [2012] NSWSC 1029, Hargood v OHTL Public Company Ltd [2015] NSWSC 446 at [23] and Central Petroleum Ltd v Geoscience Recovery LLC [2017] QSC 223 at [49]. The same reasoning has been applied to the formation of arbitration clauses: Trina Solar (US), Inc v Jasmin Solar Pty Ltd (2017) 247 FCR 1 at 14, 28, 31. Benson v Rational Entertainment Enterprises Ltd [2015] NSWSC 906 at [60]; Gonzalez v Agoda Company Pte Ltd [2017] NSWSC 1133 at [121]–[125]. Akai Pty Ltd v The People’s Insurance Co Ltd (1996) 188 CLR 418 at 425. Ace Insurance Ltd v Moose Enterprise Pty Ltd [2009] NSWSC 724 at [33]. This is especially so if the parties used the term ‘exclusive’ in previous or related agreements, but not in the relevant contract: Faxtech Pty Ltd v ITL Optronics Ltd [2011] FCA 1320; AAP Industries Pty Ltd v Rehau Pte Ltd [2015] NSWSC 468 at [16].

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example, the courts of Ruritania than if the parties simply ‘submit to’ the jurisdiction of Ruritania’s courts.25 If the parties refer ‘all’ or ‘any’ disputes to the nominated court, or use mandatory language such as that the parties ‘must’ or ‘shall’ submit disputes to the nominated court,26 these factors may indicate that the agreement is exclusive. If supplemented by a clause selecting the law of Ruritania as the subjective proper law of the contract, the forum clause is more likely to be treated as exclusive.27 If the court would have been competent without the agreement, this is also an indicator that the clause was intended to be an exclusive jurisdiction agreement.28 On the other hand, selection of a neutral forum might also be held to indicate exclusivity.29 The subject matter of the contract may also suggest that the forum clause is exclusive. In FAI Insurance Co v Ocean Marine Mutual Protection & Indemnity Assn Ltd, the fact that the contract was one of reinsurance between two international insurers suggested that disputes were only to be determined in one place, and therefore the forum clause was held to establish exclusive jurisdiction.30

Exclusive foreign jurisdiction agreements 4.17  Where the parties have expressly chosen a foreign court as the exclusive forum for litigation, this agreement will be enforced, unless the court takes the view that the foreign court would lack subject matter jurisdiction to deal with the issues in dispute, or there are strong reasons for non-enforcement.31 4.18  In some Australian cases, the courts have held that the foreign court nominated in exclusive jurisdiction agreements would lack subject matter jurisdiction to determine issues under Australian legislation, and for that reason have not enforced the agreement. This is particularly so in cases involving claims for breach of the statutory prohibition of misleading or deceptive conduct, under s 18(1) of the Australian Consumer Law 2010.32

25. 26. 27. 28. 29. 30. 31.

32.

FAI General Insurance Co Ltd v Ocean Marine Mutual Protection & Indemnity Assn Ltd (1997) 41 NSWLR 117 at 127. Ace Insurance Ltd v Moose Enterprise Pty Ltd [2009] NSWSC 724 at [33]. Gem Plastics Pty Ltd v Satrex Maritime (Pty) Ltd (1995) 8 ANZ Ins Cas 61-283; cf Contractors Ltd v MTE Control Gear Ltd [1964] SASR 47. Ace Insurance Ltd v Moose Enterprise Pty Ltd [2009] NSWSC 724; Armacel Pty Ltd v Smurfit Stone Container Corp (2008) 248 ALR 573; [2008] FCA 592 at [88]. Parnell Manufacturing Pty Ltd v Lonza Ltd [2017] NSWSC 562. (1997) 41 NSWLR 117 at 127. Huddart Parker Ltd v The Ship ‘Mill Hill’ (1950) 81 CLR 502 at 508–9; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 224, 231, 259; Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 429, 445, 447. Australian Consumer Law s 18(1), which replaced the Trade Practices Act 1974 (Cth) s 52(1) and similar provisions of the state and territory Fair Trading Acts, with effect from 1 January 2011. See, e.g., Faxtech Pty Ltd v ITL Optronics Ltd [2011] FCA 1320; Reinsurance Australia Corp Ltd v HIH Casualty and General Insurance Ltd (in liq) (2003) 254 ALR 29; [2003] FCA 56; Commonwealth Bank of Australia v White [1999] 2 VR 681; [1999] VSC 262; Quinlan v Safe International Försäkrings AB (2006) 14 ANZ Ins Cas 61-693; [2005] FCA 1362; Home Ice Cream Pty Ltd v McNabb Technologies LLC (No 2) [2018] FCA 1093. Similarly, in  Re Douglas Webber Events (2014) 291 FLR 173; [2014] NSWSC 1544, Brereton J held that only an Australian court could exercise jurisdiction to deal with a dispute under the Corporations Act 2001 (Cth), ss 232, 233, 237 and 1317H.

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In Faxtech Pty Ltd v  ITL Optronics, Middleton J held that only an Australian court has jurisdiction to deal with this claim.33 4.19  The court may find that there are strong reasons for non-enforcement in at least two situations. The first is ‘where the foreign jurisdiction clause offends the public policy of the forum whether evinced by statute or declared by judicial decision’.34 This includes a situation where the chosen court would not apply Australian substantive legal principles which give effect to Australian policy. In Akai Pty Ltd v The People’s Insurance Co Ltd,35 the High Court held that certain remedial provisions of Australian legislation would be applied in favour of the insured, if the dispute was heard in the Australian courts. The parties had expressly chosen to litigate exclusively in England. By majority, the High Court held that the court was obliged to ensure the application of those remedial provisions. Unless the defendant could show that the English court would apply those provisions in favour of the insured, the majority held that the Australian court must not stay proceedings in favour of the parties’ choice of court. 4.20 In Akai, the majority ultimately relied on a provision of the Insurance Contracts Act 1984 (Cth), which prohibits contracting out of the operation of that Act,36 to justify non-enforcement of the exclusive choice of English court agreement. Other statutes contain similar provisions restricting the parties’ ability to contract out of the application of legislation, including the Australian Consumer Law, which states that the consumer guarantees established in the Australian Consumer Law cannot be excluded, restricted or modified by contract.37 Following Akai, the statutory prohibition of contracting out means that a foreign jurisdiction agreement cannot exclude the operation of the substantive provisions of the relevant statute.38 The People’s Insurance Company, defendant to Australian proceedings, successfully applied for an anti-suit injunction in the English Commercial Court, preventing Akai, the plaintiff to the Australian proceedings, from continuing with the Australian litigation on the merits of the dispute.39 The defendant’s assets, against which any Australian order would ultimately have to be enforced, were located in Singapore, where it was most unlikely that the Australian judgment, refusing to uphold the parties’ agreement as to forum and choice of law, would be given effect. In other words, the majority’s decision in Akai was ultimately futile. 4.21  The second situation which may establish strong reasons justifying non-enforcement of an exclusive foreign jurisdiction agreement is where the litigation in the Australian court includes matters beyond the scope of the jurisdiction agreement, or third parties to 33. 34. 35. 36. 37. 38.

39.

[2011] FCA 1320 at [16], [18]. Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 445. (1996) 188 CLR 418. At 447–8, applying the Insurance Contracts Act 1984 (Cth) s 52(1). Australian Consumer Law s 64. The Australian Consumer Law is found in Sch 2 to the Competition and Consumer Act 2010 (Cth). See  Proactive Building Solutions v  Keck [2013] NSWSC 1500, applying the prohibition on contracting out in the Building and Construction Industry Security of Payment Act 1999 (NSW) s 34, to justify nonenforcement of an express choice of English courts. Akai Pty Ltd v People’s Insurance Co Ltd [1998] 1 Lloyd’s Rep 90.

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the agreement. In such a case, the public interest in avoiding multiplicity of litigation, the possibility of inconsistent outcomes, and inconvenience to third parties, might justify nonenforcement of the jurisdiction agreement.40 4.22  Whether the jurisdiction agreement applies to all of the issues in dispute in the Australian proceedings is a question of the interpretation of the agreement, which should be done according to the proper law of the contract. Reference to ‘all’ or ‘any’ disputes is more likely to be held to encompass every possible dispute between the parties; if the agreement refers to particular types of disputes, it will be limited in its effect. In construing the agreement, there are two competing interpretive approaches. The first, now dominant, approach is that the courts should interpret forum clauses broadly and beneficially, on the basis that the parties:41 … are unlikely to have intended that different disputes should be resolved before different tribunals or that the appropriate tribunal should be determined by fine shades of difference in the legal character of individual issues, or by the ingenuity of lawyers in developing points of argument.

4.23  A common form of words used in jurisdiction agreements is that the parties agree to submit all disputes ‘arising from or in connection with the contract’ to the jurisdiction of a particular court. The phrase ‘in connection with’ is regarded as broader in scope than the phrase ‘arising from’42 and is therefore often interpreted to encompass a wide range of non-contractual claims. A broadly-worded jurisdiction clause will probably be held to encompass claims under Australian legislation, including claims under the Australian Consumer Law.43 4.24  The second interpretive approach places a great deal of weight on the wording of the jurisdiction clause, and is more likely to lead to a narrow construction of the agreement.44 If the second approach is taken, it is more likely that the forum agreement will not be enforced, at least so far as non-contractual claims are concerned. The first approach is superior in that it is more likely to represent the parties’ mutual intentions at the time of contracting.45 4.25  The court may refuse to enforce a choice of foreign court agreement by staying proceedings where third parties to litigation in the forum are not parties to the jurisdiction agreement and would not therefore be bound by it.46 Where the third parties were involved 40. 41.

42. 43.

44. 45. 46.

Incitec Ltd v Alkimos Shipping Corp (2004) 138 FCR 496; [2004] FCA 698 at [47]. Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 at 165. See also Telesto Investments Ltd v UBS AG (2013) 94 ACSR 29; [2013] NSWSC 503 at [269]–[272]; Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd (2013) 298 ALR 666 at 684–6; [2013] WASCA 66. Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) (2010) 79 ACSR 383; [2010] NSWCA 196 at [56]. Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCA 192; Yperion Technology SAS v Luminex Pty Ltd [2012] FCA 554 at [16]–[17]; Telesto Investments Ltd v UBS AG (2013) 94 ACSR 29; [2013] NSWSC 503 at [269]–[272]. See, for example, Reinsurance Australia Corp Ltd v HIH Casualty and General Insurance Ltd (in liq) (2003) 254 ALR 29; [2003] FCA 56; Vetreria Etrusca SRL v Kingston Estate Wines Pty Ltd [2008] SASC 75. Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) (2010) 79 ACSR 383; [2010] NSWCA 196. Incitec Ltd v Alkimos Shipping Corp (2004) 138 FCR 496; [2004] FCA 698; Venter v Ilona MY [2012] NSWSC 1029 at [42]–[43]; Vautin v BY Winddown, Inc (No 2) [2016] FCA 1235; Royal Bank of Scotland plc v Babcock & Brown DIF III Global Co-Investment Fund LP [2017] VSCA 138.

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4.26

in the transactions in question, it is possible that the court may still enforce the jurisdiction agreement, at least against the parties to the contract.47 In general, Australian courts are likely to enforce exclusive foreign jurisdiction agreements in commercial contracts strictly.48 Non-commercial contracts 4.26  Cross-border litigation involving consumers and employees is uncommon in comparison to commercial litigation. In general, Australian courts are unlikely to enforce exclusive jurisdiction agreements in non-commercial cases.49 Under the Trans-Tasman Proceedings Act, even exclusive choice of court agreements nominating New Zealand courts in consumer and employment contracts are merely one factor to be considered in determining whether an Australian court should stay proceedings.50 In cases to which the Trans-Tasman Proceedings Act does not apply, Australian courts refer to the principles developed in commercial cases, but are inclined not to enforce jurisdiction clauses as strictly in non-commercial cases. In Quinlan v Safe International Försäkrings AB, Nicholson J stated that ‘in a consumer situation, the court should not place as much weight on an exclusive jurisdiction clause in determining a stay application as would be placed on such a clause where there was negotiation between business people’.51 However, in Gonzalez v  Agoda Co Pte Ltd,52 Button J enforced an exclusive jurisdiction clause in favour of Singaporean courts against an Australian consumer, finding that there was no strong cause for nonenforcement of the clause. It was argued in this case that the foreign jurisdiction clause was void as being an unfair term under the Australian Consumer Law.53 Button J declined to reach a concluded view on that point, but commented that on the evidence, he did not accept ‘that there is anything unfair about an international corporation seeking to protect itself from claims being litigated in the courts of countless countries applying countless different substantive and procedural laws’.54

47.

48.

49. 50.

51.

52. 53. 54.

Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) (2010) 79 ACSR 383; [2010] NSWCA 196 at [71]–[80]; Nicola v Ideal Image Development Corp Inc (2009) 261 ALR 1; [2009] FCA 1177 at [79]. See also Yperion Technology SAS v Luminex Pty Ltd [2012] FCA 554. Cf Royal Bank of Scotland plc v Babcock & Brown DIF III Global Co-Investment Fund LP [2017] VSCA 138. But see  Benson v  Rational Entertainment Enterprises Ltd, in which Robb J placed ‘little weight’ on the exclusive jurisdiction clause because there was ‘no real connection’ between the chosen forum and either the parties or the facts of the dispute: [2015] NSWSC 906 at [132]. E.g. Knight v Adventure Associates Pty Ltd [1999] NSWSC 861; Hargood v OHTL Public Company Ltd [2015] NSWSC 446. This is because they are excluded from the definition of exclusive choice of court agreements in the TransTasman Proceedings Act 2010 (Cth) s 20(3)(b) and (c). Therefore, the effect of a choice of court agreement in a consumer or employment contract falls to be determined under s 17(1), in which case, it is merely one factor that the court should take into account: s 19(2)(d). See below 4.56. (2006) 14 ANZ Ins Cas ¶61-693; [2005] FCA 1362 at [46]. This passage was cited with approval by Karakatsanis, Wagner and Gascon JJ of the Supreme Court of Canada in Douez v Facebook, Inc [2017] SCC 33 at [34]. [2017] NSWSC 1133. Australian Consumer Law 2010 s 23. [2017] NSWSC 1133 at [126].

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4.27  The Franchising Code of Conduct renders ineffective a clause in a franchising agreement which requires a party to bring an action or proceeding relating to that agreement anywhere other than the state or territory in which the franchised business is based.55 This would invalidate any exclusive choice of court clause in a franchising contract, but does not apply to non-exclusive jurisdiction clauses in such contracts because they do not ‘require’ a party to bring proceedings in any particular court.

Consequences of breaching an exclusive foreign jurisdiction agreement 4.28  At least in principle, damages are available for breach of an agreement to litigate exclusively in the forum.56 Equally, litigants in an Australian court should be conscious that bringing proceedings in Australia in breach of an exclusive foreign jurisdiction agreement may expose them to liability for damages for breach of contract. Moreover, the courts of the agreed foreign forum might issue an anti-suit injunction against the plaintiff in the Australian proceedings, enjoining the Australian plaintiff from continuing with those proceedings.57

Non-exclusive foreign jurisdiction agreements 4.29  A non-exclusive jurisdiction clause provides that the parties submit to the jurisdiction of the nominated courts, but does not preclude the parties from suing elsewhere. It is therefore not a breach of contract for proceedings to be pursued in the courts of the forum.58 As would be expected, a non-exclusive jurisdiction clause is not as strong an argument as an exclusive jurisdiction clause for a stay or dismissal of proceedings commenced in the forum. It is, nevertheless, a relevant consideration for the court to take into account in deciding whether, on normal principles of forum non conveniens, the court should refuse to exercise jurisdiction.59 Forum non conveniens is discussed below at 4.32 ff.

Unilateral and asymmetric jurisdiction agreements 4.30  Some jurisdiction agreements apply to the parties differently. They typically oblige one party to litigate, if at all, exclusively in one jurisdiction, and give the other party the right to choose to litigate in a range of forums. This type of agreement is called unilateral or asymmetric. In the Australian cases, the relevant component of the clause is treated separately from the clause as a whole, and Australian courts have not doubted the

55. 56.

57. 58. 59.

Franchising Code of Conduct, cl 21. This code is Sch 1 to the Competition and Consumer (Industry Codes — Franchising) Regulation 2014 (Cth). Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG [2014] 1 All ER 590; [2013] UKSC 70; Compagnie des Messageries Maritime v Wilson (1954) 94 CLR 577 at 587; Ace Insurance Ltd v Moose Enterprise Pty Ltd [2009] NSWSC 724 at [53]; Commonwealth Bank v White (No 2) [2004] VSC 268 at [5]; John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd (No 2) [2015] NSWSC at [32]–[33] (assuming without deciding that damages are available for breach of arbitration and forum agreements); R Garnett, ‘Jurisdiction Clauses Since Akai’ (2013) 87 Australian Law Journal 134 at 148–9; A Briggs, Agreements on Jurisdiction and Choice of Law, Oxford University Press, Oxford, 2008, Ch 8. E.g. Akai Pty Ltd v The People’s Insurance Company [1998] 1 Lloyd’s Rep 90. See Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 426, 428, 447. Eurogold Ltd v Oxus Holdings (Malta) Ltd [2007] FCA 811.

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enforceability of the relevant aspect of the clause, or of such clauses as a whole. They are regarded as enforceable in England,61 although they are not enforceable in some legal systems and therefore they should be used with caution.62 60

Jurisdiction agreements in favour of the forum 4.31  The parties seldom dispute the effect of an express choice of the forum court. Where they do, Australian courts will enforce an exclusive agreement, absent strong grounds for non-enforcement, by refusing to grant a stay, or by granting an anti-suit injunction to restrain the commencement or continuation of foreign proceedings brought in breach of the agreement.63 Again, in principle, damages are available for breach of an exclusive jurisdiction agreement.64 If the choice of the forum court is non-exclusive, its effect will be determined by the principle of forum non conveniens.

Forum non conveniens 4.32  If there is no applicable mandatory law which determines whether proceedings should be stayed or retained, and no exclusive jurisdiction agreement, the applicable principle for determining whether proceedings should be stayed is forum non conveniens. This is a principle of Scots law, adopted in England in the 1970s and 1980s, a version of which was then adopted in Australia. The Australian case law version of forum non conveniens is unique in the common law world, and was developed in reaction to the English version of the principle, which is discussed below before moving on to a consideration of the Australian law. There are also several legislative versions of forum non conveniens in Australia which differ from the case law version of this principle. 4.33  For most of the 20th century, the common law in Australia, as stated in Maritime Insurance Co Ltd v Geelong Harbour Trust Commissioners,65 only allowed a court to grant a stay of proceedings in which it had jurisdiction where the defendant could show that: (1)  if  the proceedings were to continue they would cause an injustice to the defendant because they were (a) oppressive or vexatious; or (b) an abuse of the process of the court; and (2) a stay of the proceedings would not cause an injustice to the plaintiff. Thus the availability of a stay depended more on the moral propriety of the proceedings than on the relative suitability of the forum. The principle also meant that it was highly improbable that the court would stay proceedings, and the plaintiff ’s choice of forum was only rarely

60. 61. 62. 63. 64.

65.

Reinsurance Australia Corp Ltd v  HIH Casualty & General Insurance Ltd (in liq) (2003) 254 ALR 29; [2003] FCA 56 at [343]–[346]; Venter v Ilona MY [2012] NSWSC 1029. See Garnett, above n 56, at 137. Mauritius Commercial Bank Ltd v Hestia Holdings Ltd [2013] EWHC 1328; [2013] 2 All ER 898. See M Keyes and BA Marshall, ‘Jurisdiction Agreements: Exclusive, Optional, and Asymmetric’ (2015) Journal of Private International Law 345. Ace Insurance Ltd v Moose Enterprise Pty Ltd [2009] NSWSC 175. Dinelli argues that damages should not be awarded for breach of a jurisdiction agreement if that would contradict a foreign judgment which is recognised in Australia: ‘The Limits on the Remedy of Damages for Breach of Jurisdiction Agreements: The Law of Contract Meets Private International Law’ (2015) 38 Melbourne University Law Review 1023. (1908) 6 CLR 194. See also St Pierre v South American Stores (Gath & Chaves) Ltd [1936] 1 KB 382 at 398.

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displaced. This was in marked contrast to the position under Scots law. There, under principles of forum non conveniens the court could restrain proceedings commenced properly in Scotland where there was another place in which the proceedings could be more suitably determined in the interests of the parties and the ends of justice.67 66

The Spiliada approach 4.34  In England, the pressure of an increasing volume of international litigation and opportunities for forum shopping saw the traditional principle gradually transformed until, in Spiliada Maritime Corp v Cansulex Ltd,68 the House of Lords adopted the Scottish principles for the purposes of English law. The English doctrine of forum non conveniens comprises two stages. The first stage requires the court to grant a stay, if the defendant can establish that there is another more appropriate forum for the resolution of the dispute, which is referred to as the ‘natural forum’. That is the forum which might be regarded as the seat of the proceedings — the court with which the proceedings have their most real and substantial connection. This is identified by considering a range of connecting factors. In Spiliada, Lord Goff of Chieveley listed these as the residence and availability of witnesses; the residence and places of business of the parties; and the law of the cause. The second stage is that, even if the defendant has established that there is a more appropriate forum, the court might not grant a stay if the plaintiff can show that the effect of a stay would be to deprive the plaintiff of a ‘legitimate personal or juridical advantage’ which was available in the forum, but not in the other forum. In Spiliada, the legitimate advantages referred to by Lord Goff include the benefit of a longer limitation period.69 4.35  Under the English principles of forum non conveniens, the main issue therefore is whether there is a more appropriate forum in another place that can hear and determine the proceedings. In Lubbe v Cape Plc,70 the defendant applied for a stay of proceedings in England, and undertook to submit to the jurisdiction of the South African courts to deal with the plaintiff ’s claims. The South African courts did not have jurisdiction to hear a claim against the defendant, and would only gain jurisdiction once the defendant complied with the undertaking. This was thought sufficient by the House of Lords for the courts in South Africa to be regarded as having jurisdiction to determine the dispute. The plea of forum non conveniens still failed in Lubbe, however, because it appeared that the plaintiffs could not fund their class actions for asbestos-related claims in South Africa.71 Although the way that litigation might be funded in the different countries’ courts (which usually relates to the availability of legal aid or contingency fees) will not normally be decisive in an application to stay proceedings, it can be in ‘exceptional cases’. In Lubbe, the complexity of the claims

66.

67. 68. 69. 70. 71.

Cf Egbert v Short [1907] 2 Ch 205. However, see Lough Neagh Exploration Ltd v Morrice [1999] NICA 8, where an action was dismissed for abuse of process, as the plaintiff had claimed similar relief in Northern Ireland to a matter it had discontinued in the Republic of Ireland. Sim v Robinow (1892) 19 R 665. [1987] AC 460. At 478. [2000] 2 All ER 986. See also Tulloch v Williams (1846) 8 D 657.

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was such that, without the assistance that was available to the plaintiffs in England, the claims would not be heard at all in South Africa.72 4.36  In proceedings in tort, the English courts have accepted that the place in which the tort is committed is prima facie the natural forum for the determination of the dispute, subject to countervailing factors.73 In general, a plea of forum non conveniens is harder to sustain when the plaintiff alleges a tort has been committed in the forum. 4.37  If the defendant to the litigation in question seeks to join a foreign third party to claim contribution or indemnity in the proceedings, then the question of forum non conveniens is determined independently for the third party proceedings. So long as the principal litigation is being conducted in the natural forum, there are considerable advantages in also allowing the third party claim to be considered, as it avoids multiplicity of proceedings (lis alibi pendens) and potentially conflicting judgments. In Petroleo Brasiliero v Mellitus Shipping,74 the English Court of Appeal held that, in determining the plea of forum non conveniens in a third party contribution claim, some weight will be given to the absence of any claim for contribution in the alternative forum. While the court rejected the view that this should be given conclusive weight, in Petroleo Brasiliero it nevertheless considered that the absence of a claim for contribution in Saudi Arabia, where the third party was located, was a significant factor in reaching the conclusion that the third party claim should be heard in England.75 4.38  United Kingdom courts cannot, at the time of writing this chapter, apply Spiliada in litigation internal to the European Union or European Economic Area, where the court that will hear the case is determined by common rules of jurisdiction.76 These rules give jurisdiction to a court in any country in the European Union or European Economic Area when the defendant is ‘domiciled’ in that country, or some other connection, such as the occurrence of a tort or delict in the country, is established. If there is more than one European Union or European Economic Area court that has jurisdiction under those rules, the court ‘first seised’ of jurisdiction will hear the case.77 For some time, the question of the extent to which principles of forum non conveniens have a residual application in European litigation has vexed courts in the United Kingdom. In general, the European Court of Justice has put a

72. 73. 74. 75. 76.

77.

See also Connelly v RTZ Corp Plc [1998] AC 854; E Peel, ‘Forum Non Conveniens Revisited’ (2001) 117 Law Quarterly Review 187 at 190. VTB Capital plc v Nutritek International Corp [2013] 2 AC 337 at [10], [51]. [2001] 1 All ER (Comm) 993. K Takahashi, ‘Forum Non Conveniens Discretion in Third Party Proceedings’ (2002) 51 International and Comparative Law Quarterly 127. The relevant principles are contained in Council Regulation (EU) No 1215/2012 on jurisdiction and the recognition of judgments in civil and commercial matters (recast) (referred to as Brussels I Recast or Brussels I bis). The Brussels I Recast replaced the Brussels I Regulation, with effect from 10 January 2015. At the time of writing this chapter, in April 2018, it was not clear what form the UK law on jurisdiction will take, upon the UK’s withdrawal from the European Union in 2019. Brussels I Recast, Article 29. The Brussels I Recast recognises various grounds of exclusive jurisdiction: Article 24. That exclusive jurisdiction must be recognised by the courts of member states by staying proceedings in favour of the courts of the place of exclusive jurisdiction: Article 27.

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stop to these opportunities.78 There are English commentators, nevertheless, who argue that English courts could stay proceedings against an English defendant (despite its domicile in a European Union country) in favour of a court in a country outside the European Union or European Economic Area.79 Outside the European arrangements, the Spiliada principles have become the settled approach in England to dealing with international litigation. They have also gained wide acceptance throughout the Commonwealth. They have been adopted in Canada, Fiji, New Zealand  and Singapore.80 The Irish courts also apply the Spiliada principles in international litigation in non-European cases.81

Australian approach 4.39  The case law has taken a different course in Australia. The High Court rejected the Spiliada doctrine of forum non conveniens by a majority in Oceanic Sun Line Special Shipping Co Inc v Fay,82 although on this point Wilson and Toohey JJ dissented. The decision in Oceanic Sun was unsatisfactory in that, among the majority, Brennan J endorsed the traditional, narrow principles as stated in Geelong Harbour Trust,83 and Deane and Gaudron  JJ held to an intermediate position. This latter approach prevailed when majority support for a distinctive Australian doctrine of forum non conveniens emerged in Voth v Manildra Flour Mills Pty Ltd.84 4.40 In Voth, the plaintiff company was incorporated in New South Wales and the defendant was an accountant in Missouri. The plaintiff commenced proceedings in the Supreme Court of New South Wales, claiming damages for negligent advice the defendant was alleged to have given to one of the plaintiff ’s subsidiaries, a company incorporated in the State of Kansas. The defendant was served in Missouri, but applied to have service set aside on the ground of forum non conveniens. This application succeeded on appeal in the High Court of Australia. 4.41  In formal terms, Voth confirms that, in Australia, a court can still only decline to exercise jurisdiction when the proceedings are vexatious or oppressive, or an abuse of the court’s process. On its face, this was no different from the traditional principle of Geelong 78.

79.

80.

81. 82. 83. 84.

Owusu v Jackson [2005] 2 WLR 942; Turner v Grovit [2005] 1 AC 101; CD Bougen, ‘Time to Revisit Forum Non Conveniens in the UK? Group Josi Reinsurance Co v UGIC’ (2001) 32 Victoria University of Wellington Law Review 705 at 712–13. E Peel, ‘Forum Non Conveniens and European Ideals’ [2005] Lloyd’s Maritime and Commercial Law Quarterly 363; A Briggs, ‘Forum Non Conveniens and Ideal Europeans’ [2005] Lloyd’s Maritime and Commercial Law Quarterly 378. Club Mediterranée NZ v Wendell [1989] 1 NZLR 216; Exportrade Corp v Irie Blue New Zealand Ltd [2013] NZCA 675; Schumacher v Summergrove Estates Ltd [2014] 3 NZLR 599; R J Paterson, ‘Forum Non Conveniens in New Zealand’ (1989) 13 New Zealand Universities Law Review 337; Translink Shipping Ltd v Compagnie Wallisienne de Navigation SARL (1991) 37 Fiji LR 46; S Gallacher, ‘After The Spiliada — Forum Non Conveniens in New Zealand and Australia’ (1996) 8 Otago Law Review 603 at 606–7; Rickshaw Investments Ltd v Nicolai Baron von Uexkull [2007] 1 SLR(R) 377; Amchem Products Inc v British Columbia (Workers’ Compensation Board) [1993] 1 SCR 897 at 931; Eng Liat Kiang v Eng Bak Hern [1995] 3 SLR 97; Club Resorts Ltd v Van Breda [2012] 1 SCR 572 at [101]–[112]. Intermetal Group Ltd v Worslade Trading Ltd [1998] 2 IR 1; Jahwar v Betta Livestock 17 [2001] 4 IR 42. (1988) 165 CLR 197. (1908) 6 CLR 194. (1990) 171 CLR 538.

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Harbour Trust. However, Voth also brought a revision of the court’s understanding of the terms ‘vexatious’ and ‘oppressive’. The proceedings would be vexatious and oppressive if the  court found that it was itself a clearly inappropriate forum for the determination of the proceedings. This was therefore a doctrine of forum non conveniens, but a narrower one than that of Spiliada. It only allowed the court to consider its own appropriateness for the determination of the proceedings. It did not require the Australian court to consider which court was the more appropriate forum and, accordingly, did not require the Australian court to undertake comparisons with foreign courts. Nevertheless, the court in Voth assessed its own appropriateness by reference to the same factors that Lord Goff set out in Spiliada for identifying the natural forum, and carried out a comparative analysis in determining whether to stay proceedings. This suggests that the Australian test and the English test are not radically different, but that the threshold for establishing that a stay should be granted is higher in Australia. The majority in Voth thought that the only circumstance in which the Voth test should provide a different outcome to the Spiliada test was where these factors indicated that there was a more appropriate forum for the determination of the proceedings but where the court in Australia was not a clearly inappropriate forum.85 4.42  In Australia, the existence of any legitimate juridical and personal advantage to the plaintiff of litigating in the forum is treated as one of the connecting factors to be considered in determining whether Australia is a clearly inappropriate forum.86 The availability of relief under Australian legislation in Australian litigation is regarded as a juridical advantage.87 The High Court has rarely held that an Australian court was clearly inappropriate, but Voth was such a case. 4.43  The Australian principle of forum non conveniens has been widely and consistently criticised for the weight it gives to the plaintiff ’s choice of court and, consequently, the enhanced opportunities it provides for forum shopping.88 In practice, the Voth test has not provided defendants much opportunity to have proceedings in Australia restrained, and is therefore much more deferent than Spiliada to the plaintiff ’s choice of court.89 Further, except in cases of lis alibi pendens — for which the High Court has adopted less parochial principles90 — the court has repeatedly reinforced this preference of giving effect to the plaintiff ’s selection of forum. In Regie Nationale des Usines Renault SA v Zhang,91 the Supreme Court of New South Wales assumed jurisdiction in a claim relating to injuries suffered in a motor accident in New Caledonia, and which included a claim for defective manufacture 85. 86. 87. 88.

89. 90. 91.

At 558. Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 251; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564–5; Henry v Henry (1996) 185 CLR 571 at 587. Telesto Investments Ltd v UBS AG (2013) 94 ACSR 29; [2013] NSWSC 503 at [170]–[171]. M C Pryles, ‘Judicial Darkness on the Oceanic Sun’ (1988) 62 Australian Law Journal 774 at 784–9; L Collins, ‘The High Court of Australia and Forum Conveniens: The Last Word?’ (1991) 107 Law Quarterly Review 182 at 187; M C Pryles, ‘Forum Non Conveniens — The Next Chapter’ (1991) 65 Australian Law Journal 442 at 450; R Garnett, ‘Stay of Proceedings in Australia: A “Clearly Inappropriate” Test’ (1999) 23 Melbourne University Law Review 30 at 35. M Keyes, ‘Jurisdiction in International Family Litigation: A Critical Analysis’ (2004) 27 University of New South Wales Law Journal 42 at 55. See 4.53–4.54. (2002) 210 CLR 491; [2002] HCA 10.

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of the vehicle by the French defendants. Jurisdiction was claimed on the ground that the plaintiff sustained injury in New South Wales. He was a New South Wales resident and, after having spent some time in hospital in New Caledonia, was repatriated to Sydney where he was hospitalised for several months. He suffered severe disablement. A stay was granted by Smart J, but reversed by the Court of Appeal. The refusal of the stay was confirmed by the High Court. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ responded to the argument that the Supreme Court of New South Wales was a clearly inappropriate forum by returning to the foundational principle that the defendants had to show that ‘a trial in New South Wales would be productive of injustice, because it would be oppressive in the sense of seriously and unfairly burdensome, prejudicial and damaging, or vexatious, in the sense of productive of serious and unjustified trouble and harassment’.92 Although the law of the cause is a factor to weigh in assessing whether or not to accept the plea,93 their Honours noted that an ‘Australian court cannot be a clearly inappropriate forum merely by virtue of the circumstance that the choice of law rules which apply in the forum require its courts to apply foreign law as the lex causae’.94 It was possible in Renault that the governing law of the case would be French, although the defendants’ evidence had not established the French principles of liability for a delict to occur in France or New Caledonia. While the majority believed that a fair trial would be received in France or New Caledonia, the defendants had not shown that they would suffer oppression or vexation in the ‘relevant sense’.95 4.44 In Puttick v Tenon Ltd,96 another personal injury case, the appellant’s husband had been employed by the respondent in New Zealand. He was exposed to asbestos during visits to factories in Malaysia and Belgium, as part of his employment, and subsequently developed asbestos-related diseases. He later moved with his family to Victoria where he commenced proceedings against the respondent. He died before those proceedings were heard. The proceedings were continued by his wife on behalf of his estate, and on behalf of herself and their children, as his dependants. His employer successfully applied for a stay of proceedings, principally on the basis that New Zealand law was the governing law, a proposition which the primary judge accepted. That decision was upheld by the Victorian Court of Appeal but overturned by the High Court, which was not satisfied that the respondent employer had established that New Zealand law was the governing law of the tort. Given the emphasis placed on that conclusion by the primary judge and on the first appeal, the High Court held that the respondent had not discharged the onus of showing that the forum was clearly inappropriate. But even if it was, the court again stressed that the Australian court would not be clearly inappropriate just because a foreign law was the law of the cause,97 particularly where the foreign law was New Zealand law, even if most of the evidence was found in New Zealand.98

92. 93. 94. 95. 96. 97. 98.

At 521. At 504, citing Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 566. At 521. At 521. (2008) 238 CLR 265; [2008] HCA 54. At [49]. At [31], [32].

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4.47

4.45  In the High Court appeal in Puttick v  Tenon Ltd, for the first time there was a direct challenge to the Australian principle of forum non conveniens enunciated in Voth. The High Court unanimously affirmed that principle,99 which is therefore likely to remain part of the Australian law for the foreseeable future. 4.46  It has already been noted that the assumption of jurisdiction on the ground that damage was suffered in the forum is arguably the most exorbitant jurisdiction exercised by Australian courts.100 Renault shows that the Australian principle of forum non conveniens does little to constrain the exercise of that jurisdiction. The case reinforces the importance, emphasised in Voth, of focusing on the appropriateness of the local court for dealing with the litigation, as against comparing the local and foreign courts to find the better of the two for determining it.101 The High Court in Renault and Puttick v Tenon Ltd shifted from the emphasis in Voth on the geographic considerations that inform the assessment of a clearly inappropriate forum and that put a gloss on the more traditional conceptions of vexation and oppression. The judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Renault plainly restored the idea of vexation and oppression to a primary role in stay applications, and seems to cast it in the more moral terms of Geelong Harbour Trust rather than the geographic terms of Voth. The clear inappropriateness of the local forum is subordinate to this principle. Renault and Puttick v Tenon Ltd demonstrate how much more favourable the Australian principles are to the plaintiff. There is no suggestion, as there is in the Spiliada line of cases,102 that a court in the place of the wrong is prima facie the natural forum for the litigation, or even that the place of the wrong is to be given extra weight in assessing the plea. However, if the Australian court finds that the law of the forum is likely to govern the claim, this will undoubtedly make it extremely difficult to secure a stay of any proceedings before it.103 While Australian choice of law principles, especially in tort, have been modified to recognise the territorial claims of other countries’ law to apply in multi-state disputes, the principles of jurisdiction, only lightly constrained by the Voth test, continue to assert older unilateral approaches in international litigation.104 4.47  The Australian approach to forum non conveniens has not been adopted in any other common law country, and the High Court majority’s unwillingness to accede to the general trend of authority throughout the Commonwealth remains another point at which Voth is consistently exposed to criticism.105 The legislative versions of forum non conveniens described below resemble the English principle rather than the Australian case law principle. 99. At [28]–[30], [38]. 100. See 2.78. 101. G Lindell, ‘Regie Nationale des Usines Renault SA v Zhang: Choice of Law in Torts and Another Farewell to Phillips v Eyre but the Voth Test Retained for Forum Non Conveniens in Australia’ (2002) 3 Melbourne Journal of International Law 364 at 381. 102. See 4.36 and 4.73. 103. See, for example, Union Shipping New Zealand Ltd v Morgan (2002) 54 NSWLR 690 at 735; [2002] NSWCA 124; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 608, 642, 654; [2002] HCA 56. 104. P Smart, ‘Foreign Torts and the High Court of Australia’ (2002) 118 Law Quarterly Review 512. 105. The one possible exception is Vanuatu, where in Naylor v Kilham [1999] VUSC 11, Lunabek ACJ applied Voth. However, the decision is difficult to reconcile with the earlier decision of the Vanuatu Court of Appeal in Chan Wing (Vanuatu) Ltd v Motis Pacific Lawyers [1998] VUCA 3, and was probably decided per incuriam. See R Mortensen, ‘Duty Free Forum Shopping: Disputing Venue in the Pacific’ (2001) 32 Victoria

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Procedure 4.48  The doctrine of forum non conveniens may be raised where, in cases of service of a defendant outside Australia, the plaintiff seeks leave to serve or to proceed, or where the defendant, once served, applies to have service of process set aside.106 In any of these cases, the onus rests on the plaintiff to show that the court is not a clearly inappropriate forum. Forum non conveniens can also be raised in proceedings where the court has jurisdiction as of right, either at common law or under the Service and Execution of Process Act 1992 (Cth). In this case, the defendant must apply for a stay to show that the court is a clearly inappropriate forum. It is possible to raise forum non conveniens in cases where jurisdiction is established at common law or under the Service and Execution of Process Act, which only raise issues internal to Australia. However, the courts will only stay proceedings in matters that raise issues internal to Australia in ‘very rare’ cases. Questions of the appropriate forum in these cases will normally be dealt with by transfer under the cross-vesting scheme.107 4.49  The doctrine of forum non conveniens is applied to determine where the arguments about the merits of the case are to be heard and determined. Often, the decision about where to litigate will finalise the dispute. However, this is not always the case and, as an interlocutory question, the issue of forum non conveniens should be determined quickly. In Spiliada, Lord Templeman stated that the decision whether to stay proceedings is for the primary judge, that submissions should be brief, and that appeal courts should be slow to interfere.108 In Voth, the majority echoed this sentiment, holding that submissions to the court should be measured in minutes and, where possible, an agreed statement of the relevant connecting factors for the case should be handed to the court.109 In several later cases, judges have noted that it is difficult, if not impossible, to follow the direction of the majority in Voth, given the importance of the issue of jurisdiction to the parties.110 4.50  Lord Templeman’s statement was re-affirmed by the Supreme Court of the United Kingdom in VTB Capital plc v Nutritek International Corp, in which Lord Neuberger noted that since Spiliada was decided, the judiciary had been encouraged to exercise far greater case management powers, and held that the courts should invoke those powers ‘to ensure that the evidence and argument on service out and stay applications are kept within proportionate bounds and do not get out of hand’.111 4.51  The rules of the New South Wales, South Australian, Tasmanian, Victorian and the Australian Capital Territory Supreme Courts state that initiating process may be set aside,

106. 107. 108. 109. 110. 111.

University of Wellington Law Review 673; R Mortensen, ‘Comity and Judicial Restraint in Vanuatu’ (2002) 33 Victoria University of Wellington Law Review 95. Cf Henwood v Levesque Beaubien Geoffrion Inc (1998) 128 Man R (2d) 72, where it was held that dismissal of proceedings was not the appropriate way to respond to a successful plea of forum non conveniens. Douglas v Philip Parbury & Associates [1999] WASC 15; see also 4.59–4.73. Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 465. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565. See, for example, News Corp Ltd v Lenfest Communications Inc (1996) 21 ACSR 553 at 573–4. [2013] 2 AC 337 at 376–7.

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or the exercise of jurisdiction declined, if the court concludes that it is an ‘inappropriate’ forum for the trial of the proceedings.112 The language of the rules has raised the question whether they amount to a statutory modification of the common law principles of Voth, and so import the principles of Spiliada by legislative action. In Regie Nationale des Usines Renault SA v Zhang113 and Dow Jones & Co Inc v Gutnick114 the majority in the High Court treated the rules for the New South Wales and Victorian Supreme Courts as demanding the common law standards of Voth.115 In Renault, both Kirby and Callinan JJ, who appeared to support the adoption of the Spiliada principles, believed that the rules of court modified the common law and required the question of a stay or dismissal to be assessed according to either the Spiliada standard or one that made no reference to the common law concepts of vexation and oppression required by Voth.116 Kirby J reiterated that view in Gutnick;117 however, in both cases, this was a minority position.118 There is no specific reference to a stay on the ground of ‘inappropriateness’ in the present rules in the Northern Territory, Queensland and Western Australian Supreme Courts, the Federal Court and the High Court, but the common law entitlement to apply for a stay or dismissal of proceedings on the ground of forum non conveniens is certainly available in litigation in each of those courts. 4.52  In an application on the ground of forum non conveniens, slightly different considerations may arise in cases of lis alibi pendens.

Related proceedings 4.53  Lis alibi pendens arises where there are similar or related proceedings between the same parties in the forum and in a foreign court. Where the defendant in the forum merely applies for a temporary stay of proceedings pending determination of the proceedings in the foreign place, the principles of Voth do not apply. The court considers whether the proceedings in the foreign place were commenced first, the stage they have reached, and the effect that determination of the foreign proceedings would have on the proceedings in the forum.119 However, if the defendant in the forum applies either to have service set aside or for a permanent stay of proceedings on the ground that the existence of identical or related proceedings in a foreign place makes the proceedings in the forum vexatious and oppressive, then the principles of Voth do apply. So, the overriding consideration remains whether the forum court is a clearly inappropriate forum for the determination of the proceedings.120 Traditionally, the existence of identical or related proceedings in the 112. See Court Procedures Rules 2006 (ACT) r 6504(2)(b); Uniform Civil Procedure Rules 2005 (NSW) r 11.6(2)(b); Supreme Court Civil Rules 2006 (SA) r 40C(2)(b); Supreme Court Rules 2000 (Tas) r 147C(2)(b); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 7.04(2)(b). 113. (2002) 210 CLR 491; [2002] HCA 10. 114. (2002) 210 CLR 575; [2002] HCA 56. 115. Cf Lindell, above n 101, at 379–80. 116. (2002) 210 CLR 491 at 543–5, 562–6; [2002] HCA 10. 117. (2002) 210 CLR 575 at 640–1; [2002] HCA 56. 118. But see Studorp Ltd v Robinson, in which Allsop P expressed the view that ‘[t]here seems to me to be a difference in quality and emphasis with the addition of the adverb [clearly]’: [2012] NSWCA 382 at [5]; and compare [62] (Hoeben JA). 119. Sterling Pharmaceuticals Pty Ltd v Boots Co (Aust) Pty Ltd (1992) 34 FCR 287 at 294. 120. Sentry Corp v Peat Marwick (1990) 95 ALR 11 at 36–7.

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foreign place has not made courts more inclined to grant a stay of proceedings, especially where the defendant in the forum is the plaintiff in the foreign proceedings.121 However, in the High Court’s decision in Henry v Henry,122 an almost identical matrimonial cause in Monaco was a significant factor in the decision whether to grant a stay of proceedings in Australia. Indeed, the majority — Dawson, Gaudron, McHugh and Gummow JJ — held that, where proceedings are already pending in a foreign place, it is prima facie vexatious and oppressive to commence proceedings in an Australian court in relation to the same matter.123 4.54  In considering the plea of forum non conveniens, the majority in Henry held that the court should also take into account other factors including the jurisdiction of the foreign court; whether its judgment can be enforced in Australia; the stage the separate proceedings have reached; the costs incurred; the relative connections each party has with the foreign and forum courts; and the ability of each of the parties to participate in the proceedings in the foreign and forum courts on an equal footing.124 But to the extent that it signals a scenario that is prima facie considered vexatious and oppressive and in which proceedings are likely to be stayed or dismissed, Henry shifts from the general approach to forum non conveniens in Australia.125 It also suggests that a comparison is to be made between the circumstances of the forum court and those of the foreign court, which is stated to be impermissible in Voth, and re-emphasised both in Renault v Zhang and in Puttick v Tenon.126 The approach of Henry, nevertheless, still depends on the primacy of Voth’s ‘clearly inappropriate forum’ gloss on the principles of vexation and oppression. It is therefore unclear whether the return to a more substantive assessment of vexation and oppression in Renault is likely to upset the principle of Henry. However, even if that is unlikely, it should be noted that Henry’s conclusion that the Australian proceedings will be prima facie vexatious and oppressive only holds where the foreign proceedings are commenced first, and where they relate to the same subject matter. If the Australian proceedings were commenced first, or the proceedings are on a related, but not identical, matter, the normal principles of Voth will be applicable.127

Trans-Tasman litigation 4.55  As noted above, the provisions of the Trans-Tasman Proceedings Act 2010 (Cth) relating to staying proceedings apply with exclusive effect so that any application for a stay of Australian proceedings on forum grounds, where New Zealand is the alternative Cohen v Rothfield [1919] 1 KB 410 at 414; Witten v Lombard Australia Ltd [1970] ALR 77 at 80. (1996) 185 CLR 571. At 590–1. At 592–3. Primary judges have taken these factors into account in stay applications that did not involve parallel proceedings: Point of Pay Pty Ltd v Roots [2012] VSC 380; Bogart Lingerie Ltd v Steadmark Pty Ltd [2013] VSC 212; Centrebet Pty Ltd v Baasland (2012) 272 FLR 69. 125. Garnett, above n 88. 126. Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 520–1; [2002] HCA 10; Puttick v Tenon Ltd (2008) 238 CLR 265; [2008] HCA 54 at [27]. 127. Central Petroleum Ltd v  Geoscience Resource Recovery LLC [2017] QSC 223. Cf Australian Commercial Research and Development Ltd v ANZ McCaughan Merchant Bank [1989] 3 All ER 65 at 69; Rocklea Spinning Mills Pty Ltd v Consolidated Trading Corp [1995] 2 VR 181; CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345. 121. 122. 123. 124.

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forum, must be dealt with under the Act. The provisions of the Trans-Tasman Proceedings Act relating to staying proceedings in which there is no exclusive choice of court agreement are very similar to the related provisions of the Service and Execution of Process Act 1992 (Cth),129 on which they were based.130 128

4.56  The Act provides that the court may stay proceedings in favour of litigation in New  Zealand, if the New Zealand  court is jurisdictionally competent to deal with ‘all the matters in dispute’,131 and ‘the more appropriate court to determine those matters’.132 Evidently, this requires the court to use the Spiliada version of forum non conveniens, rather than the Voth version. The Trans-Tasman Proceedings Act lists a number of factors to which the court must refer in determining whether the New Zealand court is more appropriate. This list contains some of the factors listed in Spiliada133 and endorsed in Voth, but like the equivalent provision in the Service and Execution of Process Act, the Trans-Tasman Proceedings Act also lists more specific considerations. These include the location of ‘the subject matter of the proceeding’, the parties’ financial circumstances and ‘any other matter that the Australian court considers relevant’.134 Non-exclusive forum agreements and parallel litigation are listed as relevant factors.135 In Australian Gourmet Pastes Pty Ltd v IAG New Zealand Ltd,136 the Victorian Court of Appeal considered that a stay in favour of the New Zealand courts should be declined as Australia was the principal place of business for two of the parties, the residence of the likely witnesses for the proceedings and the place where the subject-matter – circumstances giving rise to an insurance claim – was located.137 In contrast, in Fraser v Fraser,138 which was an application in New Zealand for a stay under the equivalent New Zealand provision,139 Fitzgerald J considered that the factors favouring the New Zealand or Western Australian courts were ‘relatively finely balanced’.140 However, more of the witnesses were likely to be in Australia, and this weighed slightly in favour of the Australian court.141 A stay was granted.142

128. See  Trans-Tasman Proceedings Act  2010 (Cth) s  21(1). The Act does not deal with, or prevent, staying proceedings on grounds other than forum challenges: s 21(2). 129. See Service and Execution of Process Act 1992 (Cth) s 20, discussed at 4.77–4.80. 130. See  R Mortensen, ‘Woodhouse Reprised: Accident Compensation and Trans-Tasman Integration’ (2013) 9 Journal of Private International Law 1 at 25–31; Mortensen, above n 2, pp 125–31. 131. Re Douglas Webber Events Pty Ltd [2014] NSWSC 1544 at [34]–[38]. 132. See Trans-Tasman Proceedings Act 2010 (Cth) s 19(1). 133. Re Featherstone Resources Ltd; Tetley v Weston (2014) 288 FLR 265; 101 ACSR 394; [2014] NSWSC 1139 at [7]. 134. See Trans-Tasman Proceedings Act 2010 (Cth) s 19(2); Re Featherstone Resources Ltd; Tetley v Weston (2014) 288 FLR 265; 101 ACSR 394; [2014] NSWSC 1139. 135. See Trans-Tasman Proceedings Act 2010 (Cth) s 19(2)(d), (f). 136. [2017] VSCA 155. 137. At [83]. 138. [2017] NZHC 1055. 139. Trans-Tasman Proceedings Act 2010 (NZ) s 24. 140. [2017] NZHC 1055 at [46]. 141. At [35], [46]; cf Skelton v  Z487 Ltd [2014] NZHC 707, where the predominance of witnesses in New Zealand led to the stay being refused. 142. See also Lifestyle Investment Group v Coral Investments Securities Ltd [2016] NZHC 2262.

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4.57  A shortcoming of the provision for stays of proceedings on forum grounds in the Trans-Tasman Proceedings Act is its apparent inability to address trans-Tasman personal injuries claims.143 As noted, the Act gives an Australian court power to stay proceedings in favour of a New Zealand court if the New Zealand court ‘has jurisdiction to determine matters in issues between the parties’ and ‘is the more appropriate court’.144 In New Zealand, personal injuries claims cannot be brought in the courts; under the Accident Compensation Act  2001 (NZ) injury compensation is an administrative procedure and handled by an administrative agency — the Accident Compensation Corporation. Personal injuries litigation in a New Zealand  court is prohibited.145 As the compensation it provides is usually less generous than the common law damages available for personal injuries claims in Australia, the Accident Compensation Act has been a significant motivation for New  Zealand  litigants to bring personal injuries claims in Australian courts.146 If these injuries are deemed to have taken place in New Zealand, Australian courts would almost inevitably conclude that the question was governed by New Zealand law and, as a result, there would be a strong case for a stay in favour of the New Zealand courts. However, there is no court in New Zealand that has jurisdiction to determine a personal injuries claim, and so it appears that the Trans-Tasman Proceedings Act gives no power to an Australian court to grant the stay. The problem is compounded in that the Act also prohibits Australian courts from granting a stay of proceedings on forum grounds at common law147 — Voth is not available to courts to consider a stay of proceedings in trans-Tasman matters. This is an unsatisfactory state of affairs, and stems from a failure to consider the implications of New Zealand’s unique accident compensation scheme when the trans-Tasman scheme of jurisdiction was developed. It is worth considering an amendment to the Act to allow stays of proceedings in favour of decision-makers other than courts — including the Accident Compensation Corporation.

Interstate proceedings 4.58  Contests about the forum in which multi-state litigation should be heard also arise in multi-state litigation within Australia. Here, the effective choice is between two courts in Australia, whether that is a choice between courts in different states or territories, or between a federal court on the one hand and a state or territory court on the other. Different rules apply to determine whether multi-state proceedings within Australia should be restrained, depending on whether those proceedings were commenced in superior or intermediate and inferior courts.

Interstate proceedings in superior courts 4.59  For proceedings initiated in a superior court, the circumstances in which the court is required to decline to exercise a jurisdiction that is otherwise properly established differ 143. See generally Mortensen, ‘Woodhouse Reprised’, above n 130, pp 25–33. 144. Trans-Tasman Proceedings Act 2010 (Cth) s 20. 145. Accident Compensation Act  2001 (NZ) s  317. Litigation may be permitted if exemplary damages are claimed: s 319. 146. See Mortensen, ‘Woodhouse Reprised’, above n 130, pp 11–12. 147. Trans-Tasman Proceedings Act 2010 (Cth) s 21(1).

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radically from the case law principle of forum non conveniens. For most cases, the rules are derived from the Jurisdiction of Courts (Cross-vesting) Acts enacted in all Australian jurisdictions.148 Under s 5 of the Cross-vesting Acts, the court is in some cases obliged to transfer the proceeding to one of the other superior courts participating in the cross-vesting scheme. It is not necessary that the transferring court be exercising cross-vested jurisdiction to make the transfer. The transferring court may be exercising jurisdiction at common law, under the Service and Execution of Process Act 1992 (Cth) or under its own rules of court. Therefore, the obligation to transfer is the primary restraint on the exercise of a superior court’s jurisdiction in interstate cases. On receiving a transferred proceeding, the transferee court is to deal with the proceeding as if the steps already taken in the transferring court had been taken in the transferee court.149 So, the transferee court takes up the proceeding where it was left in the transferring court. If, for example, pleadings had closed in the transferring court before the order for transfer was made, the parties need not undertake pleading again in the transferee court.150 As will be seen, the initial intention motivating the transfer procedure was that it should serve a similar function to the administrative allocation of litigation to a judge within a court by the court’s bureaucracy. The transfer was therefore, at first, seen as a ‘nuts and bolts management decision’151 that secured an allocation of litigation across the superior courts of the nation in a similar way. There is later High Court authority that emphasises the judicial character of the decision to transfer, and that therefore disagrees with its characterisation as an administrative decision.152 This still does not alter the scheme’s basic aim of securing an efficient allocation of the proceedings to the best-placed court in the federation. 4.60  Since the High Court’s decision in Re Wakim; Ex parte McNally153 a transfer cannot be made to the Federal Court or the Family Court of Australia where the proceedings concern matters arising under state or territory law that do not fall within the accrued jurisdiction of the relevant federal court.154 A transfer can still be made to a federal court in proceedings involving a relevant federal matter.155 Some state courts have been prepared to transfer a mixed state and federal matter to a federal court with the intent that, once the parties were in the federal court, they would test whether the proceedings could be

148. See 2.28–2.29; Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth); Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT); Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW); Jurisdiction of Courts (Cross-vesting) Act (NT); Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld); Jurisdiction of Courts (Cross-vesting) Act 1987 (SA); Jurisdiction of Courts (Cross-vesting) Act  1987 (Tas); Jurisdiction of Courts (Cross-vesting) Act  1987 (Vic); Jurisdiction of Courts (Cross-vesting) Act 1987 (WA). References in this chapter will be to either the federal Act or to the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), which is identical to the other state and territory legislation. Similar rules are found in other Australian legislation; for example, Corporations Act 2001 (Cth) Pt 9.6A, subdiv C. 149. See Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 11(3); Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) s 11(3). 150. Abrook v Paterson (1995) 58 FCR 293 at 296. 151. Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 714. 152. BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at 540, 565; [2004] HCA 61. 153. (1999) 198 CLR 511; [1999] HCA 27. 154. See 2.29–2.30. 155. Gargan v Gargan [1999] QSC 316.

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encompassed by federal accrued jurisdiction.156 This naturally requires the parties to argue the question of accrued jurisdiction, and probably defeats the cross-vesting scheme’s purpose of eliminating litigation over jurisdiction. It also risks an adverse decision on the question of accrued jurisdiction, in which case the parties must recommence in the state court. Wakim does not affect the power of a federal court to transfer to a Supreme Court, although the matter must first be within federal jurisdiction before the transfer can be made, as the federal court otherwise has no power to deal with the case even by transfer. If the matter is commenced within a federal court but is outside its jurisdiction, it cannot be transferred to a state or territory court. It must be commenced afresh in the relevant state or territory court, without any of the benefits of the Cross-vesting Act’s provisions by which all steps that have been taken in the first court are deemed to have been taken in the second court. 4.61  The application for a transfer of a proceeding may be made by one of the parties, or by the federal, state or territory Attorney-General. The court may also order the transfer on its own motion.157 However, just who bears the onus of proving that there are grounds to order a transfer is open to doubt. In the leading New South Wales case of Bankinvest AG v Seabrook,158 Rogers AJA held that a person who applied for a transfer did not carry any onus of proving that it ought to be made. Bankinvest has been influential in this and other respects, but there is a competing line of authority to the effect that the person who applies for a transfer does have the responsibility of persuading the court that there are grounds to make the order.159 Gummow J accepted this in the High Court’s decision in BHP Billiton Ltd v Schultz,160 and it is now generally accepted that there is no onus on the applicant for a transfer.161 In practice, it is most unlikely that a person would apply for a transfer without arguing grounds for the order. 4.62  The Cross-vesting Acts provide that there is no appeal from a judge’s decision to order a transfer, or from a judge’s refusal to do so.162 The rationale for this is the same as the policy underlying the courts’ directions in forum non conveniens applications that submissions should be short, and without reference to long lists of prior decisions on point.163 The question is about where to litigate, and litigation on that question should be minimised. However, the Commonwealth Constitution guarantees an appeal from decisions of Supreme Courts to the High Court of Australia.164 An appeal was taken to the

156. Foley v Farquharson [2003] FLC 93-126; [2003] QSC 021. 157. See  Jurisdiction of Courts (Cross-vesting) Act  1987 (Cth) s  5(7); Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 5(7). 158. (1988) 14 NSWLR 711 at 727. 159. Bourke v  State Bank of New South Wales  (1988) 85 ALR 61 at 76; Dawson v  Baker (1994) 120 ACTR 1 at 17–18; Paul v Mid Coast Meat Co Pty Ltd [1995] 1 Qd R 658 at 662. 160. (2004) 221 CLR 400; [2004] HCA 61 at [71]. 161. Taurus Funds Management Pty Ltd v  Aurox Resources Ltd [2010] NSWSC 1223 at [5]; Open Universities Australia Pty Ltd v The TAFE Commission [2017] VSC 617. 162. See Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 13(a); Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 13(a). 163. See 4.49–4.50. 164. See Commonwealth Constitution s 73(ii).

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High Court in BHP Billiton Ltd v Schultz, with the court accepting that, to the extent that they might suggest that no appeal would lie to the High Court, the Cross-vesting Acts were ineffective.166 The ban on appeals is nevertheless still effective for appeals to the federal, state and territory courts of first appeal. These courts have therefore only heard matters concerning transfers by means other than appeals. Thus, in Bankinvest v Seabrook167 the trial judge removed the matter to the New South Wales Court of Appeal on his own motion. The Full Court of the Family Court and a Full Court of the Supreme Court of the Australian Capital Territory have heard matters concerning transfers by special procedures allowing those courts to exercise original jurisdiction.168 The ban on appeals, while reinforcing that the decision to transfer should not be litigated at length, also made it more difficult to secure uniform interpretations of the transfer provisions of the Cross-vesting Acts even within single states. The New South Wales Court of Appeal’s decision in Bankinvest emerged early after the passage of the Cross-vesting Acts as a highly persuasive approach to transfers throughout the federation, and the High Court’s willingness to take the appeal in BHP Billiton Ltd v Schultz gave an authoritative interpretation of the transfer provisions that is binding on all Australian courts. 165

4.63  Section 5 of the Cross-vesting Acts sets out three circumstances in which an order for transfer can be made. These are: (1) the existence of related proceedings; (2) that the court is exercising cross-vested jurisdiction; and (3) the interests of justice. That a transfer must be in the ‘interests of justice’ is a prerequisite for the making of an order on the first two grounds, but it is completely sufficient for ordering a transfer on the third ground. This means that litigation about transfers centres on the question of whether it is in the interests of justice to make the order, as the additional requirements for a transfer on the first two grounds are, in practice, unnecessary to satisfy if the interests of justice alone would justify the order.

Related proceedings 4.64  Paralleling in broad terms the lis alibi pendens ground for stays of proceedings at common law discussed above,169 s 5 of the Cross-vesting Acts provides for a transfer of a proceeding where it ‘arises out of, or is related to, another proceeding’ pending in another superior court, and ‘it is more appropriate’ that the first proceeding be determined in the other court. The leading case in this connection is Bankinvest AG v Seabrook.170 4.65 In Bankinvest, there were related proceedings in New South Wales and Queensland. They both concerned loans that the plaintiff Swiss corporation had made in Sydney to a large number of Australian interests, companies and individuals. These were spread across New South Wales, Queensland, Victoria and Tasmania. The proceedings in the Supreme Court of New South Wales  were brought to recover money from a number of these companies and individuals under the loans and supporting guarantees. However, some 165. 166. 167. 168. 169. 170.

(2004) 221 CLR 400; [2004] HCA 61. At [55], [127], [214]. (1988) 14 NSWLR 711. Re Chapman and Jansen (1990) 13 Fam LR 853; Dawson v Baker (1994) 120 ACTR 1. See 4.53–4.54. (1988) 14 NSWLR 711.

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of the defendants in New South Wales were also plaintiffs in proceedings brought against Bankinvest in the Supreme Court of Queensland, and these partly rested on allegations of breaches of Queensland legislation. The Queensland proceedings did not involve many of the parties to the New South Wales proceedings, but did raise issues which were likely to be comprehended by the New South Wales proceedings. The trial judge in New South Wales, Rogers CJ Comm D, removed the matter to the Court of Appeal, which ordered a transfer of the New South Wales proceedings to the Supreme Court of Queensland. The plaintiff conceded that the proceedings in the two states were related, so the only issue was whether it was more appropriate that they be determined in the Queensland court. Here, Rogers AJA held that the Cross-vesting Act displaced the traditional rules of forum non conveniens, and prescribed different criteria for determining where the matter should be heard.171 The only ‘lodestar’ was what the interests of justice should dictate. In identifying this, assistance could be found in Lord Goff ’s speech in Spiliada and, in particular, the connecting factors he set out for establishing the natural forum.172 In this case, it was likely that the matter would be governed by the Queensland legislation — the alleged wrongful acts took place in Queensland, and most of the parties, witnesses and documents were in that state. There was also a cross-claim for negligence against Queensland solicitors. The only real connection with New South Wales was the location of Bankinvest’s office. In these circumstances, the Queensland court was the most convenient venue for the matter, and a transfer of the New South Wales proceedings was the only means of avoiding duplicate litigation. 4.66  For a transfer to be made on this ground, there must be some relationship between the two sets of proceedings. If the proceeding is to arise ‘out of ’ a proceeding pending in another court, the second proceeding must in some sense be a cause of the first. There must be some degree of association between the proceedings for them to be regarded as ‘related’.173

Cross-vested jurisdiction 4.67  The second ground on which a transfer may be ordered under s 5 arises where the transferring court is exercising cross-vested jurisdiction. Here, it is necessary to have regard to all of the following: • whether the transferring court would not have had jurisdiction in the proceeding but for its jurisdiction under the cross-vesting scheme or, in the case of the federal courts, but for an accrued jurisdiction; • whether the matter involves the application, interpretation or validity of another state’s or territory’s legislation or, in the case of the Supreme Courts, of federal legislation; and • the interests of justice. Once the court has had regard to these, it must determine whether it is more appropriate that the proceeding be heard in the other superior court. In Bankinvest, the New South Wales

171. Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 727–9. 172. See 4.34. 173. Re Hamilton-Irvine (1990) 94 ALR 428 at 432–3.

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Court of Appeal held that all three considerations were satisfied and that this was another ground justifying a transfer to the Supreme Court of Queensland.174

Interests of justice 4.68  The third ground recognised under s 5 on which a transfer can be made from one superior court to another is that ‘it is otherwise in the interests of justice that the relevant proceeding be determined’ in the other court. The ‘interests of justice’ is also a requirement of the related proceedings and cross-vested jurisdiction grounds of transfer,175 so if it is possible to order a transfer on those grounds it would be equally possible to order a transfer on this ground. Most applications for a transfer are made on this ground. As seen above, in Bankinvest v Seabrook176 the New South Wales Court of Appeal held that the interests of justice required the case to be transferred to Queensland. Street CJ held that a transfer was ‘a “nuts and bolts” management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute’.177 His Honour (agreeing with Rogers AJA) rejected any reference to the doctrine of forum non conveniens as it had developed in Australia.178 In deciding whether or not to transfer, Rogers AJA held that ‘the relevant matters and considerations are essentially the same as were specified by the House of Lords in Spiliada’. Although the High Court had held that it was inapplicable in applications for a stay or dismissal of proceedings, Spiliada had ‘already, in effect, been made applicable in Australian courts in relation to transfers between Supreme Courts by the various Australian Parliaments’.179 4.69  Bankinvest therefore governed the circumstances in New South Wales in which a transfer could be made to another court — whether federal, state or territory. The ban on appeals naturally made it more difficult to develop a common approach across participating courts, but the logic, practicality and cooperative ethos of the Bankinvest principles led to their adoption in most of the other state Supreme Courts, the Federal Court and the Family Court of Australia.180 The Supreme Court of the Australian Capital Territory presented an early challenge to Bankinvest by holding that the decision to transfer should be conditioned

174. 175. 176. 177. 178. 179. 180.

(1988) 14 NSWLR 711 at 730. See 4.64–4.67. (1988) 14 NSWLR 711; see also 4.65. At 714. At 714, 730. At 730. Midland Montagu Australia Ltd v O’Connor (1992) 2 NTLR 86; Swanson v Harley (1995) 102 NTR 25; Pegasus Leasing Ltd v Tieco International (Australia) Ltd (1993) 61 SASR 195; Pegasus Leasing Ltd v Balescope Ltd (1994) 63 SASR 51; McEntee v Connor (1994) 4 Tas R 18; Vic: Linter Group Ltd (in liq) v Price Waterhouse (1992) 2 ACSR 346; Taylor v Trustees of Christian Brothers [1994] Aust Torts Reps 81-288; Schmidt v Won [1998] 3 VR 435; Trade Practices Commission v Collings Construction Co Pty Ltd (1994) 53 FCR 137; Pegasus Leasing Ltd v  Cadoroll Pty Ltd (1996) 59 FCR 152; Roff v  Aqua Distributors Pty Ltd [1996] 966 FCA 1; Buckley v  Gibbett [1996] 836 FCA 1; Charter Pacific Corp Ltd v  Commonwealth Scientific & Industrial Research Organisation [1998] FCA 1362; Activate No 1 Pty Ltd v Equuscorp Pty Ltd [1999] FCA 619 at [12]; Dockpride Pty Ltd v Subiaco Redevelopment Authority [1999] FCA 133 at [11]–[13]; cf Tribond Developments Pty Ltd v Attorney-General of South Australia [1997] FCA 106; Chapman v Jansen (1990) 13 Fam LR 853 at 855, 858–61, 869, 870.

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by the Australian principles of forum non conveniens,181 which meant that a court would only transfer proceedings if it found that it was itself a clearly inappropriate forum for dealing with them. However, by 1994, a Full Court of the Australian Capital Territory Supreme Court spurned this earlier approach and adopted principles akin to those of Bankinvest.182 That isolated the Western Australian Supreme Court, which had consolidated its refusal to recognise the Bankinvest principles for allocating jurisdiction. It consistently took the view that ‘the interests of justice’ did not imply appropriateness as a condition for transfer, and, not without inconsistency, considered that the principles of forum non conveniens needed to be satisfied before a transfer could be made.183 The Western Australian judges were aware that their approach was idiosyncratic, but consciously refused to align their approach with Bankinvest.184 Only with the decision of the High Court in BHP Billiton Ltd v Schultz185 was this difference in approach resolved. 4.70 In BHP Billiton Ltd v  Schultz, the plaintiff suffered from asbestosis, which he claimed to have resulted from exposure to asbestos when he worked for BHP at Whyalla in South Australia. BHP was incorporated in Victoria, but carried on business in South Australia and New South Wales. There were other defendant companies, incorporated in the United Kingdom, the Australian Capital Territory and New South Wales. Although the plaintiff lived in South Australia and the wrongs were alleged to have taken place there, he brought claims against the defendant companies in the New South Wales Dust Diseases Tribunal. The tribunal had jurisdiction to deal with claims relating to dust-related conditions, and was recognised as having developed a ‘particular experience and facility in dealing with dust disease claims’. It could sit outside the state, and it had sat in South Australia. In Schultz, liability was not in issue and it was accepted that, in the tribunal, the law of South Australia would govern the question of BHP’s potential liability to the plaintiff. However, under the Dust Diseases Tribunal Act 1989 (NSW) the tribunal could award a conclusive judgment for damages for a plaintiff ’s medical condition, but also later, though still conclusive, judgments for subsequent and ensuing medical conditions. This was likely to be advantageous to the plaintiff, where a conclusive judgment for damages in South Australia would have to take into account the progress of the condition. Any interim award for damages in South Australia might have to be repaid if it turned out to be more than the final judgment justified, whereas the conclusive character of the first judgment in the Dust Diseases Tribunal would preclude any repayment by the plaintiff. There were also more significantly limited rights of appeal in New South Wales than was the case in South 181. Waterhouse v Australian Broadcasting Corp (1989) 86 ACTR 1. 182. Dawson v Baker (1994) 120 ACTR 11. The only reservations that the court in Dawson v Baker had about the Bankinvest approach was that ‘the interests of justice’ condition for a transfer did not always turn on ‘appropriateness’: at 22. A similar change in thinking took place in the Queensland Supreme Court: cf Paul v Mid Coast Meat Co Pty Ltd [1995] 1 Qd R 658; Ropat Pty Ltd v Scarfe [1999] 2 Qd R 102; Hub Capital Pty Ltd v Challock Pty Ltd [1999] 2 Qd R 588; World Firefighters Games Brisbane, 2002 v World Firefighters Games Western Australia (2001) 161 FLR 355; [2001] QSC 164. 183. Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd [1990] WAR 531; Platz v Lambert (1994) 12 WAR 319; Douglas v Philip Parbury & Associates [1999] WASC 15 at [19]–[24]; Whyalla Refineries Pty Ltd v Grant Thornton (a firm) (2001) 182 ALR 274; [2001] WASC 49. 184. Anderton v Enterprising Global Group Pty Ltd [2003] WASC 67 at [28]–[31]. 185. (2004) 221 CLR 400; [2004] HCA 61.

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Australia. As is possible under the Cross-vesting Act’s transfer provisions, BHP applied to the Supreme Court of New South Wales to have the proceedings removed from the tribunal to the Supreme Court, and then transferred to the Supreme Court of South Australia. Sully J in the New South Wales Supreme Court refused to remove and transfer the proceedings to South Australia. Leave to appeal to the High Court having been granted, a majority of the court (Gummow, Kirby, Hayne and Callinan JJ) ordered the removal and transfer to the South Australian Supreme Court. The remaining judges (Gleeson CJ and McHugh and Heydon JJ) agreed with the majority’s principles, but would have had the question remitted to the New South Wales court for reconsideration. 4.71  The most significant aspect of the decision in Schultz was that a majority of the judges  — Gleeson CJ and McHugh, Heydon and Kirby JJ — explicitly accepted that Bankinvest v Seabrook represented the correct approach to the question of a transfer under the Cross-vesting Acts.186 Gummow J (with whom Hayne J agreed) endorsed Nygh’s analysis of the transfer provisions187 that rested on the Bankinvest approach,188 and Callinan J adopted precisely the same principles. This makes the Spiliada search for the ‘the more appropriate forum’ the governing objective in transfer proceedings. As Gleeson CJ and McHugh and Heydon JJ held:189 There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first [transferring] court is a ‘clearly inappropriate forum’. It is both necessary and sufficient that, in the interests of justice, the second [transferee] court is more appropriate.

The term ‘natural forum’ which Lord Goff had used in Spiliada was freely applied to the Australian court that should keep, or receive, the proceedings after a judge’s consideration of a transfer application.190 This means that no more weight is to be given to the plaintiff ’s choice of court than to the defendant’s preference for a different court — a rejection of the application of the more plaintiff-oriented Voth principles. As Gleeson CJ and McHugh and Heydon JJ said: ‘The interests of justice are not the interests of one party, and there may be interests wider than those of either party to be considered’.191 Their Honours explicitly endorsed the factors set out in Spiliada as relevant to the question of transfer. These include the availability of witnesses, the places where the parties respectively reside or carry on business, and the law of the cause, although the range of other considerations was ‘legion’ and the weight to be given to each in a given case could vary.192 If the parties lived in different states, the residence of the parties might not be so determinative of the natural forum. The comparative cost, expense and convenience of the different courts seemed to be accepted as relevant considerations to account for in transfer proceedings.193

186. 187. 188. 189. 190. 191. 192. 193.

At [12]–[14], [162]. P Nygh, ‘Choice of Law Rules and Forum Shopping in Australia’ (1995) 6 Public Law Review 237 at 243–4. BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [76]. At [14]. At [20], [109], [163], [259]. At [15]. At [18]. At [19].

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4.72  The majority’s order to remove and transfer the proceedings in Schultz rested on their conclusion that the Supreme Court of South Australia was the natural forum for the litigation. A significant factor was that, in rejecting BHP’s application for a removal and transfer of the proceedings, the trial judge had given decisive weight to the plaintiff ’s choice of forum, and the advantages that the Dust Diseases Tribunal Act gave to the plaintiff.194 Gleeson CJ and McHugh and Heydon JJ thought that, as this indicated a preference for the plaintiff ’s choice of forum over the search for the more appropriate forum, there was a material error in the judgment.195 These factors were also influential in the other judgments,196 but which concluded further that the Supreme Court of South Australia was the more appropriate or ‘natural’ forum. Gummow and Hayne JJ found that, as all other factors were evenly balanced, the transfer should be made to South Australia, as it provided the law of the cause.197 Both Kirby and Callinan JJ accepted that the court in the place of the wrong would be the natural forum,198 which made the South Australian court the more appropriate forum. 4.73  As has been seen, as applied in England, the Spiliada principles have led courts to the more specific principle that, in multi-state tort litigation, a court in the place of the tort is prima facie the natural forum for the litigation.199 Similar, though not completely identical, principles seemed to have emerged in transfer applications in Australia with the adoption of the Spiliada approach through Bankinvest and Schultz. Callinan J in Schultz gave the clearest endorsement of the English approach, when stating that the ‘natural forum’ would ‘in most cases mean the jurisdiction in which the tort was committed’.200 His Honour noted that it was also likely that the place of the tort was a place with which most parties had, and would continue to have, a presence, and would give a proximate court that could deal with the dispute quickly and with savings in costs and expense.201 Kirby J also said that the natural forum will usually be the place of the wrong.202 Gummow J (with whom Hayne J agreed) treated the state that gave the law of the cause as the decisive consideration for a transfer in Schultz,203 and in tort cases this would be the state where the tort occurred.204 However, Gummow J’s approach does not begin with the place of the tort as the preferred natural forum, but as the critical consideration favouring South Australia in the case in hand. While Gleeson CJ and McHugh and Heydon JJ also identified the law of the cause as an important consideration to weigh, they noted that ‘New South Wales might well be the “natural forum” for an action for damages brought by a passenger in a motor vehicle if they were both residents of New South Wales, even though the injury resulted from a collision

194. 195. 196. 197. 198. 199. 200. 201. 202. 203. 204.

At [69]. At [25], [29]. At [69], [167]–[170], [258]. At [100]. At [170], [259]. See 4.36. (2004) 221 CLR 400; [2004] HCA 61 at [259]. At [259]. At [170]. At [100]. See 18.10.

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that occurred on the other side of the Queensland or Victorian border’. Accordingly, most of the judges in Schultz treated the place of the tort as one, albeit a most significant and weighty, consideration to be taken into account when deciding whether or not to transfer proceedings, and only Kirby and Callinan JJ would begin with a court in the state where the tort occurred as prima facie the natural forum. 205

4.74  In transfers under the Cross-vesting Acts, the choice of court made by the parties under an exclusive jurisdiction clause is merely ‘a relevant consideration’, having regard to the need to hold the parties to their contractual obligations, and therefore may be less decisive than in an international case.206 In World Firefighters Games Brisbane v World Firefighters Games Western Australia Inc,207 the parties agreed by contract to arrangements for the staging of ‘The World Firefighters Games’ in Brisbane in 2002, but also to submit to the exclusive jurisdiction of the Western Australian courts in relation to any disputes under the contract. The parties had been in dispute over these arrangements for two years before the applicant sought urgent injunctive relief in the Supreme Court of Queensland in 2002. The respondent then sought a transfer of the proceedings to the Supreme Court of Western Australia, but had to overcome significant connections with Queensland, including the location in the state of the lawyers, most of the witnesses and most of the relevant documents. The dispute related to events in Brisbane. However, the exclusive jurisdiction clause was apparently the decisive factor in Philippides J’s order to transfer the matter to the Western Australian court. In general, her Honour considered that one should not begin with the ‘strong bias’ that the common law had given to the forum chosen by the parties in an exclusive jurisdiction clause, but that under the Cross-vesting Acts it remained a relevant consideration ‘on the basis that the “interests of justice” require that due acknowledgement be accorded to such a clause as representing the bargain between the parties and that proper regard be given to the need to hold parties to their bargain.’208 In World Firefighters in particular, the fact that the parties had agreed to the exclusive jurisdiction of the Western Australian courts while conscious of all of the connections that their arrangements had with Queensland made the clause an even weightier factor in the decision to transfer.209 Many subsequent cases have endorsed the analysis taken by Philippides J in World Firefighters. But in several cases, the courts have not enforced exclusive choices of other state and territory courts,210 and nonexclusive choices are even less likely to be determinative in transfer applications.211 205. (2004) 221 CLR 400; [2004] HCA 61 at [18]. Although, given that the Victorian and Queensland capitals are closer to the New South Wales border than Sydney, it will often be more convenient to try proceedings in the former states: see, for example, Amor v Macpak Pty Ltd (1989) 95 FLR 10. 206. See 4.11–4.31. 207. (2001) 161 FLR 355; [2001] QSC 164. 208. At 364–5. Cf Stammbach v MBD Energy Ltd, in which Brereton J observed that in an application for a transfer of proceedings under the cross-vesting legislation, ‘it is not a question of giving contractual effect to [the jurisdiction] clause, but simply of taking the agreement of the parties reflected in it as one amongst several factors that indicate some greater connection with Victoria than with NSW’: [2014] NSWSC 807 at [21]. 209. (2001) 161 FLR 355; [2001] QSC 164 at 369. 210. River Gum Homes Pty Ltd v Meridian Pty Ltd [2010] QCA 293 at [20] (the exclusive jurisdiction clause is ‘relevant, but subject to other considerations bearing on the comparative convenience of litigating in the competing jurisdictions’). 211. Plantagenet Wines Pty Ltd v Lion Nathan Wine Group Australia Ltd (2006) 229 ALR 327; [2006] FCA 247; Gresham Property Investments Ltd v  Global Consulting Services Pty Ltd [2016] NSWSC 415. Cf Monash

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Forum non conveniens 4.75  The question has arisen whether, in proceedings that have an interstate element, an Australian court is able to stay proceedings at common law under the principles of Voth v Manildra Flour Mills Pty Ltd.212 It seems that, while the superior courts could still technically use the power to stay or dismiss proceedings on forum non conveniens grounds to relocate litigation to another Australian court, the transfer provisions of the Cross-vesting Acts have effectively ‘ousted’ the application of the common law principles in interstate cases. In Schmidt v Won,213 the Victorian Court of Appeal unanimously held that Voth ‘should be considered as having no continued practical application’ where the exercise of jurisdiction between the state and territory Supreme Courts was concerned. The ‘ordinary remedy’ of a party in one state served with initiating process of the Supreme Court of another state was to seek a transfer of the proceedings under the Cross-vesting Acts. Only in cases that were in the traditional sense frivolous, vexatious or oppressive, or an abuse of the process of the court, should a stay or dismissal of interstate proceedings be sought.214 The approach taken in Schmidt v Won has been adopted in other states.215 A stronger approach was taken by Perry J in the Supreme Court of South Australia in Pegasus Leasing Ltd v Balescope Pty Ltd,216 where it was considered that Voth was limited to international cases. In practice, it should be easier for a defendant to succeed in an application to transfer proceedings than in an application for a stay under the Voth principles, so a well-advised defendant would always apply for transfer under the cross-vesting legislation rather than for a stay under the principle of forum non conveniens.

Interstate proceedings in intermediate and inferior courts Transfer of proceedings 4.76  The Cross-vesting Acts do not apply to the intermediate and inferior courts. However, there is effectively provision for a transfer from an inferior court to be channelled through the relevant state or territory Supreme Court. Under s 8(1) of the Cross-vesting Acts, there are two cases where a proceeding in an inferior court in a state or territory can be removed to the Supreme Court, and transferred by the Supreme Court to the Federal Court, the Family Court of Australia, the Family Court of Western Australia or the Supreme Court of another state or territory. First, this may occur when the proceeding in the inferior court arises out of, or is related to, another proceeding that is pending in one of those other superior courts. Second, this may occur when it appears to the Supreme Court that it should

212. 213. 214. 215.

216.

IVF Pty Ltd v  Burmeister (No 2), in which it was held that the non-exclusive choice of the New South Wales courts (together with a choice of NSW law) carried ‘substantial weight’: [2017] NSW 903 at [25]. (1990) 171 CLR 538; see also 4.32–4.47. [1998] 3 VR 435. At 453–4. James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353; World Firefighters Games Brisbane v  World Firefighters Games Western Australia Inc (2001) 161 FLR 355 at 362; [2001] QSC 164; McEntee v Connor (1994) 4 Tas R 18 at 24; Douglas v Philip Parbury & Associates [1999] WASC 15 at [17]; River Gum Homes Pty Ltd v Meridian Pty Ltd [2010] QCA 293. (1994) 63 SASR 51 at 56.

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give consideration to the transfer of the proceeding in the inferior court. In either case, if the proceeding is removed to the Supreme Court it is treated as a proceeding that is pending in that court, and can be transferred to the Federal Court, the Family Court of Australia, the Family Court of Western Australia or another Supreme Court in accordance with the powers that the Supreme Court has under s 5 of the Cross-vesting Acts.217 The second of these cases was that considered by the High Court in BHP Billiton Ltd v Schultz,218 where the proceedings were removed from the New South Wales Dust Diseases Tribunal to that state’s Supreme Court, and then transferred to the Supreme Court of South Australia.219

Stays of proceedings 4.77  For intermediate and inferior courts, the primary source of restraint on the exercise of a jurisdiction properly established is s  20(3) of the Service and Execution of Process Act 1992 (Cth). This provides: … the court may order that the proceeding be stayed if it is satisfied that a court of another State [or Territory] that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters.

4.78  The legislation lists ‘matters’ that the court may consider in determining whether an interstate court is the appropriate court for the proceeding, which include: the places of residence of the parties and of any witnesses; the place where the subject matter of the proceeding is situated; the financial circumstances of the parties; any forum clause; the law of the cause; and whether a related or similar proceeding has been commenced.220 4.79  There are cases in which judges have suggested that the stay be granted only where the first court is a clearly inappropriate forum.221 However, in Valkama v Jamieson,222 Blaxell DCJ added that ‘[a]rguably … this principle should also extend to situations where the other Australian tribunal is the “more appropriate” one’.223 In an obiter dictum in BHP Billiton Ltd v Schultz,224 Gummow J noted that s 20(3) explicitly states that no weight should be given to the plaintiff ’s choice of court. This presumably means that, as in transfers made in the interests of justice between superior courts, the search is for the more appropriate forum, and the common law principles favouring the plaintiff ’s choice of court have no application. This is certainly the trend in the reported cases.225

217. See 4.59–4.74. 218. (2004) 221 CLR 400; [2004] HCA 61. 219. See  4.70–4.72. See also James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353; Simonfi v Fimmel [2000] ACTSC 54 at [1]. 220. See  Service and Execution of Process Act  1992 (Cth) s  20(4). This list is not exhaustive of the relevant considerations: St George Bank Ltd v McTaggart [2003] 2 Qd R 568; [2003] QCA 059 at [11]. 221. Kontis v Barlin (1993) 115 ACTR 11 at 21–2; Valkama v Jamieson (1994) 11 SR (WA) 246 at 249; Daralievski v Transport Accident Commission [2003] SADC 30 at [12]–[14]. 222. (1994) 11 SR (WA) 246. 223. See also St George Bank Ltd v McTaggart [2003] 2 Qd R 568; [2003] QCA 059 at [11]. 224. (2004) 221 CLR 400; [2004] HCA 61 at [75]. 225. Workcover Corp v Pross Chiyoda Pty Ltd [1999] SAWCT 86; Programmed Maintenance Services Ltd v Shell Co of Australia Ltd [2000] QDC 249; Fertico v Murray River Corn [2002] SADC 89 at [20].

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4.80  Although s 20(3) only empowers the inferior court to grant a stay of proceedings, the court does have power under s 20(5) to make the order subject to any ‘conditions it considers just and appropriate in order to facilitate determination of the matter in issue without delay or undue expense’. Naturally, if the court has decided that another court is ‘the appropriate court’ to hear and determine the proceeding, those conditions will often require the parties to pursue the proceeding in that second court. This can ultimately have the same effect as a transfer of the proceeding.226

Restraining proceedings in another court 4.81  The principles by which a court in Australia restrains proceedings otherwise brought properly before it provide one means by which the question about where to litigate can be resolved. An alternative means of resolving this question is for the court to exercise powers by which it can restrain the conduct of proceedings in a foreign court. This is achieved by the issue of an ‘anti-suit injunction’. The anti-suit injunction is descended from orders by which the Court of Chancery restrained a person within its jurisdiction from pursuing litigation in a common law or ecclesiastical court, on the ground that the court considered the conduct of the proceeding to be in breach of equitable principles. In Australia, injunctions of this kind were also the means by which Supreme Courts (on the one hand) and federal courts (on the other) restrained proceedings in each other that were considered to encroach on the restraining court’s own jurisdiction. The Cross-vesting Acts have largely removed the need for this to occur, though not as completely as might be hoped.227 In all of these cases, the restraining court does not issue an injunction against the other court. It issues an injunction directly against the person who is the plaintiff in the proceeding in the other court, so long as that person is within the jurisdiction of the restraining court. It is contempt of the restraining court for that person to continue the litigation, and normal processes of contempt, such as imprisonment or sequestration, can follow if the proceeding is not discontinued. However, this means that the indirect result of an anti-suit injunction is that it strikes at the jurisdiction of the other court. The restraining court resolves the question about where to litigate in its own favour, but this makes the anti-suit injunction an extraordinary remedy that should only be granted after the most cautious consideration of the issues.

Restraining proceedings in a foreign court 4.82  The principles by which an anti-suit injunction is ordered were discussed by the High Court in CSR Ltd v Cigna Insurance Australia Ltd.228 In this case, CSR (an Australian company), CSR America (a United States subsidiary company) and other related companies brought proceedings against Cigna Corporation (a United States company), Cigna Australia (its Australian subsidiary) and related companies, in the United States District Court in New Jersey in June 1995. The New Jersey proceedings alleged that the Cigna companies 226. Valkama v Jamieson (1994) 11 SR (WA) 246 at 250. 227. See 4.92. 228. (1997) 189 CLR 345.

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were obliged to indemnify the CSR companies for loss the latter suffered as a result of liabilities they incurred for asbestos-related injuries to third parties. They also alleged breaches of the Sherman Act (the United States federal anti-trust law) and of the New Jersey anti-trust law. Under the Sherman Act, a successful plaintiff could recover treble damages. In July 1995, Cigna Australia commenced proceedings against CSR and CSR America in the Supreme Court of New South Wales. These were for a negative declaration: that is, that Cigna was not liable to indemnify the CSR companies in respect of liabilities incurred as a result of any asbestos-related claims made in either Australia or the United States. Soon after, Cigna Australia applied in the Supreme Court for an interlocutory anti-suit injunction restraining the CSR companies from continuing the New Jersey proceedings. This was granted by Rolfe J in August. The CSR companies then applied to Rolfe J for a stay of the New South Wales proceedings on the ground of forum non conveniens. This was refused in April 1996. The CSR companies’ appeals to the Court of Appeal were dismissed; however, subsequent appeals to the High Court were allowed by a majority comprising Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ. Brennan CJ dissented. 4.83  The majority of the High Court in CSR held that the New South Wales proceedings should, pending the outcome of the New Jersey proceedings, be stayed on the ground that they were oppressive. The purpose of the New South Wales proceedings had been to prevent the New Jersey proceedings from continuing. The corollary to this conclusion was that the anti-suit injunction should not have been ordered. The New Jersey proceedings could not be considered vexatious or oppressive, especially in light of the special damages available to the CSR companies under the Sherman Act. 4.84  The majority in CSR held that the principles relating to the granting of an injunction against a proceeding in a foreign court should be tempered by considerations of comity.229 Since an anti-suit injunction indirectly interferes with the foreign proceeding, it can be interpreted as a breach of international comity between courts. Hence the remedy is only granted cautiously. This underlies the procedure the majority in CSR prescribed for applications for anti-suit injunctions, and the grounds on which they can ultimately be awarded. There is no more specific role for comity in the grant of anti-suit injunctions, in the formulation of other principles or by assessing, in a given case, whether international comity would be undermined by the grant of a particular injunction. It has been suggested that, in every case, the court should assess whether the violation of comity likely to be caused by the granting of the particular injunction being sought is warranted.230 There are further suggestions that comity should require that the processes of contempt should not follow a breach of an anti-suit injunction, but instead either that damages should be available for wrongly (from the forum’s perspective) continuing the foreign proceedings or that a foreign judgment made in breach of the forum’s anti-suit injunction simply not be enforceable in the forum. An alternative is that comity would suggest that damages be awarded instead of an anti-suit injunction altogether.231 These ideas have not been incorporated into Australian law. 229. CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 395–6. 230. Cf D Tan, ‘Anti-Suit Injunctions and the Vexing Problem of Comity’ (2005) 45 Virginia Journal of International Law 283 at 313. 231. Tan, above n 230, at 341–55; P Gross, ‘Anti-Suit Injunctions and Arbitration’ [2005] Lloyd’s Maritime and Commercial Law Quarterly 10 at 24–7.

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4.85  Where there are proceedings in the forum and the foreign place, the majority in CSR indicated that a number of steps be taken before an anti-suit injunction could be considered:232 • the forum court should first consider whether it should restrain the exercise of its own jurisdiction; • if the forum court decides that it should exercise its own jurisdiction, then it must consider whether to: – require the plaintiff in the local proceedings to apply to the foreign court for a stay or dismissal of the foreign proceedings; or – grant the anti-suit injunction. 4.86  The procedure shows the relationship between the doctrine of forum non conveniens and the granting of anti-suit injunctions. The central issue is where the matter in dispute between the parties is to be decided — in the forum or foreign court. In Australia, the forum court must first examine its own jurisdiction by determining, in accordance with Voth v Manildra Flour Mills Pty Ltd,233 whether it is a clearly inappropriate forum. If it does reach this conclusion, the question about where to litigate is answered in favour of the foreign court. Thus, as in CSR, if the purpose of the proceeding in the forum is merely to prevent legitimate proceedings in the foreign court being continued, then the proceeding in the forum will be oppressive and the forum court a clearly inappropriate forum. On the other hand, if the court finds that it is not a clearly inappropriate forum then the question arises as to how the jurisdiction of the foreign court is to be dealt with. In CSR, it was argued that, as a general rule, an anti-suit injunction should be refused until the plaintiff in the forum has applied to the court in the foreign place for a stay or dismissal of the foreign proceedings.234 However, the majority in CSR held that, while this might be desirable in some cases, it could not be required in all. If the court believes it appropriate to consider whether to grant the anti-suit injunction, the approach is the same as for other interlocutory injunctions.235 There is, nevertheless, a significant difference between an anti-suit injunction on the one hand, and other interlocutory injunctions on the other. The anti-suit injunction is effectively a final decision about where the litigation is to be conducted, where other interlocutory injunctions are intended to maintain the status quo between the parties until a final decision is made.236 4.87  The grounds on which an anti-suit injunction can be granted spring from two sources.237 First, the court has an inherent power to protect the integrity of its own process, and an injunction can be granted in any circumstances where that is required to provide that protection. So, if the foreign proceedings interfere or tend to interfere with proceedings in the forum court, grounds exist to restrain the proceedings in the foreign  court.238 232. 233. 234. 235. 236. 237. 238.

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 395–401. (1990) 171 CLR 538; see also 4.39–4.46. Cf Amchem Products Inc v British Columbia (WCB) [1993] 1 SCR 897 at 931. (1997) 189 CLR 345 at 396. At 397. See M Douglas, ‘Anti-suit Injunctions in Australia’ (2017) 41 Melbourne University Law Review 66. National Mutual Holdings Pty Ltd v Sentry Corp (1989) 22 FCR 209 at 232.

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Second, there is a separate equitable jurisdiction to grant an anti-suit injunction. Here, an injunction may be granted if the foreign proceedings amount to unconscionable conduct, the unconscientious exercise of a legal right, or breach of a legal or equitable right. Thus, commencing proceedings in the foreign court in breach of an exclusive jurisdiction clause favouring the courts of the forum is breach of a legal right (in contract) that can be appropriately enforced by an anti-suit injunction.239 There are also grounds in equity to grant the injunction where the foreign proceedings amount to vexation or oppression.240 The mere fact that there are parallel proceedings in the foreign place does not make them vexatious or oppressive.241 However, where the foreign proceedings correspond completely to the proceedings in the forum, in the sense that there is no material benefit for the plaintiff in the foreign proceedings, there are good reasons to assume that the proceedings are merely commenced in order to vex or oppress.242 In such a case, an anti-suit injunction can be granted. In CSR Ltd v Cigna Insurance Australia Ltd,243 the fact that the New Jersey proceedings involved claims for treble damages under the Sherman Act that were not available in New South Wales helped to show that they were not vexatious or oppressive. 4.88  If the plaintiff to foreign proceedings cannot show that they have a legitimate interest in taking the foreign proceedings, this is likely to establish that the foreign proceedings are vexatious and oppressive.244 In Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 1), Croft J took into account that the defendants to foreign proceedings had no assets in the foreign jurisdiction against which any judgment might be enforced.245

Applying for a stay in the foreign court 4.89 The CSR principles were developed from those already stated by the Privy Council in Société Nationale Industrielle Aerospatiale v  Lee Kui Jak246 and the Supreme Court of Canada in Amchem Products Inc v British Columbia (WCB).247 They were further developed by the House of Lords in Airbus Industrie GIE v Patel.248 As Lord Goff emphasised in the SNI appeal, the jurisdiction to grant an anti-suit injunction is one that should be exercised with caution.249 This last principle is one that has preoccupied the various courts, and rests on the idea of ‘comity’ — the forum court’s recognition of the legitimate authority of a foreign court within its own borders, and the rights of its citizens and of those protected by the laws it administers.250 This has procedural consequences, and one of these is that the plaintiff 239. Continental Bank NA v  Aeokas Compania Naviera SA [1994] 2 All ER 540; Ace Insurance Ltd v  Moose Enterprises Pty Ltd [2009] NSWSC 724. 240. Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871. 241. Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225 at 234. 242. Carron Iron Co v Maclaren (1855) 5 HLC 416 at 437; 10 ER 961 at 970; Bank of Tokyo v Karoon [1987] 45 at 60. 243. (1997) 189 CLR 345. 244. Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237 at [461]. 245. [2012] VSC 1 at [36], [53]. 246. [1987] AC 871. 247. [1993] 1 SCR 897. 248. [1999] 1 AC 119. 249. [1987] AC 871 at 892. 250. CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 395–6; cf 4.86.

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may have some obligation to use the processes of the foreign court to end proceedings there. In Amchem, Sopinka J held that it was ‘preferable’ that the plaintiff first apply for a stay of proceedings (or its equivalent) in the foreign court before being allowed to seek an anti-suit injunction in the local court.251 The rationale is that, so far as comity between courts is concerned, it is better that a foreign court make a decision about the suitability of proceedings before it than that the local court impose its will on the foreign court. The point was developed further by the majority in CSR. Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ pointed out that, even in Amchem, it was not thought to be a ‘general rule’ that a plaintiff be required first to apply in the foreign court for a stay of the foreign proceedings. Nor could it be, when the different circumstances in which an interlocutory injunction could be granted were taken into account. The CSR majority thought that this step could not be expected when the injunction was granted to protect the integrity of the local court’s processes or when the defendant had brought proceedings in the foreign court in breach of contract.252 However, they added that ‘[t]here may be cases — for example, cases based on contentious or novel claims of unconscionable conduct — in which it is appropriate or desirable that an anti-suit injunction not be granted until an application has been made for a stay or dismissal of the foreign proceedings’.253 So, whether there is a requirement that the local plaintiff should apply for a stay of the foreign proceedings before applying for an anti-suit injunction in the forum depends on the circumstances of the case. Nevertheless, Bell and Gleeson have expressed scepticism as to whether the prerequisite that the applicant should apply for a stay in the foreign court exists at all.254 They have argued, in the first place, that this duty rested on tenuous or false assumptions, amongst which they included the widespread belief that the foreign court is insulted when proceedings before it are restrained.255 Further, they suggest that the plaintiff cannot be expected to apply for a stay where the relevant foreign court does not have a doctrine of forum non conveniens.256 Nevertheless, the CSR formulation of this duty accounts for this possibility. A third consideration raised by Bell and Gleeson is that the application for a stay of proceedings on the ground of forum non conveniens can sometimes be regarded as an act of submission to the jurisdiction of the foreign court. If so, the making of the application itself can, if the foreign court rejects it, result in the judgment of the foreign court becoming enforceable in the forum.257 This is not, however, the case in an Australian forum, as the Australian principles for the recognition of a foreign judgment do not consider that an [1993] 1 SCR 897 at 931. (1997) 189 CLR 345 at 396. At 397. A S Bell and J Gleeson, ‘The Anti-suit Injunction’ (1997) 71 Australian Law Journal 955 at 968. See QBE Insurance (Aust) Ltd v Hotchin (administrator of the estate of Hotchin (dec’d)) [2011] NSWSC 681 at [17]. 255. Bell and Gleeson, ibid at 968. Certainly, the foreign court’s awareness of proceedings before it is often overstated. The injunction can require a discontinuance of proceedings that, so far as the foreign court’s administration is concerned, is indistinguishable from a discontinuance brought because the litigation is compromised before trial. However, where proceedings have been before the court for some period, judges have openly expressed irritation at the effect of a foreign anti-suit injunction: Laker Airways v  Sabena, Belgian World Airlines 731 F 2d 909 at 939–42 (1984); Amchem Products Inc v Workers’ Compensation Board (1989) 42 BCLR (2d) 77 at 102–5. 256. Bell and Gleeson, above n 254 at 968. 257. At 969. 251. 252. 253. 254.

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application for a stay of proceedings in the foreign court amounts to a submission to the jurisdiction of the foreign court.258

Exclusive jurisdiction clauses 4.90  Whether the parties have agreed to an exclusive jurisdiction clause that encompasses the issues in dispute in the litigation is relevant also in an application for an anti-suit injunction. If an exclusive jurisdiction or arbitration clause provides for the dispute to be dealt with in the forum, there will undoubtedly be stronger reasons for the forum court to issue an anti-suit injunction against the continuation of foreign proceedings brought in breach of the clause.259 Indeed, the injunction will ordinarily issue to restrain the breach of contract unless the defendant can show strong reasons why it should not.260 Further, even if the jurisdiction clause is not exclusive, if the continuation of the foreign proceedings is for some other reason in breach of a contractual agreement between the parties, the same principles will apply.261 4.91  Proceedings brought in Australia can, of course, be the object of a foreign anti-suit injunction. While parties that continue Australian litigation in breach of a foreign anti-suit injunction will not, for that reason, be exposed to the contempt processes of the relevant Australian forum, they might well be subject to contempt proceedings and penalties under the law of the foreign place. In Commonwealth Bank of Australia v White,262 Byrne J found that there was good reason for proceedings against Lloyd’s, the English insurer, to continue in Victoria, even though the proceedings were brought in breach of an exclusive jurisdiction clause in favour of the English courts. However, the High Court of England and Wales was not satisfied that there were good reasons to continue proceedings in Victoria, and granted an anti-suit injunction against White, the plaintiff in Victoria, to restrain the Victorian proceedings. Attempts were then made by Lloyd’s to have the Victorian proceedings stayed. One reason given was to show comity to the English court, and its decisions that there were no good reasons to litigate in Victoria in breach of the contract and to grant the anti-suit injunction. In the Victorian Supreme Court, Warren J held that the stay should be refused. Comity did not require it, especially as the anti-suit injunction emerged because the English and Victorian courts had disagreed as to whether there were good reasons to bring proceedings in breach of the exclusive jurisdiction clause, and it was appropriate that the Victorian court prefer its own decision. There were also remedies available in Australia that English law had not been proved to provide.263 The refusal of the stay, nevertheless, would be no defence to English proceedings for breach of the injunction. Commenting on this case, Moshinsky questions whether the same decision to refuse a stay would have been made if the anti-suit injunction had issued before the Victorian proceedings had 258. See 5.16–5.17. 259. CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 393. 260. XL Insurance Ltd v Owens Corning [2000] 2 Lloyd’s Rep 500 at 508–9; Donohue v Armco Inc [2002] 1 Lloyd’s Rep 425 at 433, 439; Welex AG v Rosa Maritime Ltd, The Epsilon Rosa [2003] 2 Lloyd’s Rep 509 at 517–18; Through Transport Mutual Insurance Assn (Eurasia) Ltd v  New India Assurance Co Ltd, The Hari Bhum [2004] 1 Lloyd’s Rep 206 at 211–13. 261. National Westminster Bank v Utrecht-America Finance Co [2001] 2 All ER (Comm) 7 at 20. 262. [1999] 2 VR 681; [1999] VSC 262. 263. Commonwealth Bank of Australia v White (No 4) [2001] VSC 11 at [39]–[40].

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been commenced. In that situation, the stronger grounds for a stay that are given by the principles of lis alibi pendens would certainly be available to the Victorian defendant.265 264

Restraining proceedings in another Australian or a New Zealand court 4.92  There is now little need for one court in Australia to issue an anti-suit injunction against another. The cross-vesting scheme’s provision for transfers between superior courts creates another method of deciding in which court the merits of a case are to be determined, a method which depends significantly on the cooperation of the courts involved.266 In Pegasus Leasing Ltd v Cadoroll Pty Ltd,267 this cooperation was not forthcoming. There were parallel proceedings in the Federal Court (sitting in the Australian Capital Territory) and the Supreme Court of South Australia, each involving the same parties and almost the same issues. However, each of the courts had refused to transfer the proceeding before it to the other. As multiple proceedings with the prospect of incompatible judgments being rendered was undesirable, Neaves J in the Federal Court granted an anti-suit injunction to restrain the Supreme Court proceedings. This was endorsed on appeal to the Full Court. Though it is regrettable that in Pegasus Leasing the cross-vesting scheme was not used as it was intended, there is little doubt that the power to issue an anti-suit injunction against another Australian court still exists.268 4.93  There is a limited prohibition on the granting of anti-suit injunctions against other courts in Australia under s 21 of the Service and Execution of Process Act 1992 (Cth). This prohibition only arises where a proceeding was commenced by the service of initiating process under the Act.269 In that case, the proceeding cannot be restrained by another Australian court. 4.94  An Australian court cannot restrain a party from commencing or continuing with litigation in New Zealand on the basis that New Zealand is not the appropriate forum.270 Because the legislation restricts the prohibition to that particular ground, it seems likely that an Australian court might grant an injunction to prevent commencement or continuation of New Zealand litigation on other grounds.

Reform 4.95  The Australian principles of jurisdiction have been widely criticised. In particular, the case law version of the forum non conveniens principle has been criticised as being too heavily weighted in favour of the plaintiff, which is thought to be inappropriate, especially given the breadth of many of the rules relating to jurisdictional competency discussed in 264. 265. 266. 267. 268. 269. 270.

M Moshinsky, ‘Comity and Foreign Anti-Suit Injunctions’ (2005) 79 Australian Law Journal 89 at 91. See 4.53. See 4.59–4.74. (1996) 59 FCR 152. Bell Group NV (in liq) v Insurance Commission of Western Australia [2017] WASCA 229. See 2.24–2.27. See Trans-Tasman Proceedings Act 2010 (Cth) s 22(1), (2).

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Chapter 2. The differences between the case law version of forum non conveniens and the

legislative versions of the same principle have also attracted criticism. In 2012, the Standing Council on Law and Justice established a working group to consider reform to the principles of jurisdiction and choice of law.271 While there is widespread support for reform to the rules of jurisdiction,272 that project was never completed and it seems unlikely that it will be revived. 4.96  Section  20 of the Trans-Tasman Proceedings Act  2010 (Cth) was influenced by the Hague Convention of 30 June 2005 on Choice of Court Agreements (the Hague Choice of Court Convention),273 although it is not identical to it. In 2016, the Australian Parliament’s Joint Standing Committee on Treaties recommended that Australia should accede to the Hague Choice of Court Convention.274 At the time of writing, in April 2018, the Commonwealth Attorney-General’s Department was preparing instructions for the parliamentary drafters for the International Civil Law Bill, which is intended to bring the Choice of Court Convention into effect for Australia. The precise detail of that Bill is unknown; nor is it known when the Bill might be presented to federal parliament. 4.97  In summary, the Hague Choice of Court Convention is inspired by the New York Convention (the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958) and is intended to give a high level of protection to exclusive choice of court agreements.275 The Choice of Court Convention is not comprehensive;276 therefore, even when legislation giving effect to it is enacted, it will only apply to some jurisdiction agreements in Australia and the current law will continue to apply to many choice of court agreements.

Conclusion 4.98  In Australia, the law of jurisdiction can be seen to comprise two separate questions. The first is whether the court is competent to deal with the claim. Historically, this has 271. Standing Council of Law and Justice, Communiqué, 12–13 April 2012. 272. The Hon J Allsop and D Ward, ‘Incoherence in Australian Private International Law’ and A S Bell, ‘Rationalisation and Rationale: Approaching the Reform of Rules for the Assertion of Jurisdiction over Foreign Defendants’ in Dickinson et al, above n 2, Chs 3, 4. 273. Convention on Choice of Court Agreements, opened for signature 30 June 2005 (entered into force 1 October 2015). 274. Joint Standing Committee on Treaties, Implementation Procedures for Airworthiness-USA; Convention on Choice of Courts-accession; GATT Schedule of Concessions-amendment; Radio Regulations-partial revision, Report 166 (November 2016) [3.21]. 275. For detailed explanations of the likely effect of the Hague Choice of Court Convention on Australian law, see  R Garnett, ‘Magnum Opus or Much Ado About Nothing?’ (2009) 5 Journal of Private International Law 161; BA Marshall and M Keyes, ‘Australia’s Accession to the Hague Convention on Choice of Court Agreements’ (2017) 41 Melbourne University Law Review 246; A Mills, ‘The Hague Choice of Court Convention and Cross-border Commercial Dispute Resolution in Australia and the Asia-Pacific’ (2017) 18 Melbourne J of Int L 1. 276. It only applies to exclusive choices of courts of Contracting States to the Convention (Article 3(a)); a number of different matters are excluded from the scope of the Convention (Article 2(2)); the Convention does not apply to consumer and employment contracts (Article 2(1)); and the Convention only applies in international cases: Article 1(2). See Marshall and Keyes, above n 275 at 271–81.

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been principally concerned with ensuring that the court has personal jurisdiction over the defendant. The circumstances in which that is the case were discussed in Chapter 2. The court must also have subject matter jurisdiction over each of the particular claims and defences raised by the parties; limitations on subject matter jurisdiction were discussed in Chapter  3. Finally, the court may be required because of mandatory rules to stay proceedings or retain jurisdiction in international cases. If not, Australian courts always have a discretion whether to stay proceedings in favour of litigation in a foreign court. The court may also restrain commencement or continuation of foreign proceedings by the issue of an anti-suit injunction. Together, the issues of jurisdiction form a major part of private international law in Australia.

132

Chapter 5 The Effect of Foreign and Interstate Judgments Introduction 5.1  In Chapter 1, the three broad issues addressed in private international law were introduced — jurisdiction, the recognition and enforcement of a foreign judgment, and choice of law.1 So far, the discussion in Part 2 (in Chapters 2–4) has concentrated on jurisdiction. The second ‘issue’ in private international law arises when a case has proceeded to judgment in a place outside the forum state — whether that is another state, territory or country — and the person who is to benefit from that judgment (in the case of money judgments, the judgment creditor) wants the judgment of the interstate or foreign court to be either recognised or enforced in the forum state. For family law matters, this issue will be discussed in Part 4. This chapter considers the principles by which an interstate or foreign judgment in all other matters in personam and in rem will be recognised in an Australian court. 5.2  There is a close relationship between the principles of jurisdiction and those dealing with the effect of interstate and foreign judgments. The roles of the two bodies of principle are also complementary. The most evident connection lies in the reliance placed on the jurisdiction actually exercised by the foreign court when deciding whether its judgment may be given any effect in an Australian forum. In general terms, the foreign court’s judgment will only be recognised if the court exercised jurisdiction in the proceedings on the narrow grounds allowed to a domestic court at common law: that is, the defendant was present in the foreign place or submitted to the jurisdiction of its courts.2 In that respect, the rules of ‘international jurisdiction’ — which from the perspective of Australian law give a foreign court’s judgment juridical credibility — mirror the common law rules of domestic jurisdiction for an Australian court. While, for multi-state litigation in Australia, courts are given more generous extraterritorial jurisdictions than this under statute or their own rules of court,3 a foreign court exercising a similar extended jurisdiction in multi-state proceedings is not likely to see Australian law giving the resulting foreign judgment any effect in an Australian forum.

1. 2. 3.

See 1.1. See 2.3–2.16. See 2.17–2.94.

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5.3  The extended jurisdiction exercised by Australian courts under statute or their rules of court raises another aspect of the relationship between jurisdiction and the recognition and enforcement of foreign judgments. Even if an Australian court exercises jurisdiction in international litigation, it does not mean that this will have any extraterritorial effect. The exercise of jurisdiction does not mean that the court can impose liability, which depends on it being able to exercise coercive power. While it will be able to exercise coercive power in the forum, it will only be able to impose liability outside the borders of the forum state if the rules for the recognition and enforcement of foreign judgments in the place where enforcement is sought recognise the forum court’s judgment. In most cases, foreign principles of recognition are as equally reluctant as those of Australian law to concede the right of (what is from the foreign court’s perspective) a foreign court to exercise a long-arm jurisdiction in rendering a locally-enforceable judgment. So, as was noted in the discussion of Dow Jones & Co Inc v Gutnick,4 while the right of an Australian state court to exercise jurisdiction in an internet defamation case merely because the libellous material was downloaded in the state might initially seem exorbitant, the actual exercise of that jurisdiction by an Australian court could be worthless to the plaintiff if the defendant had no Australian presence or assets.5 In considering how effective litigation is likely to be, it is necessary to account for both the jurisdiction of the local court and the principles for enforcing a foreign judgment in the place where it is needed to enforce the local judgment. This chapter, however, only considers the Australian rules for the recognition and enforcement of foreign judgments. If the intention is to enforce the judgment outside Australia, the principles of recognition and enforcement in the relevant foreign country also need to be consulted. 5.4  The relationship between principles of jurisdiction and the effect of foreign judgments has been developed in international and federal schemes designed to assist the crossborder enforcement of judgments. It is generally believed that cross-border trade, and so the success of free-market areas, are assisted by easing the ability to enforce civil judgments between the countries that are participating as trading partners.6 A trading debtor should not be able to abscond within the market area. This has led to the development of ‘direct jurisdiction’ schemes for the cross-border enforcement of judgments in multi-state market areas. Most importantly, the European Union and the European Economic Area have, under the Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation recast) and the 2007 Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Lugano Convention), progressively refined a scheme by which all countries have agreed to common rules of jurisdiction for civil matters internal to the market area. If the defendant is domiciled in a European Union or a European Economic Area country then these common rules of jurisdiction apply to the litigation. The judgment that results can generally circulate freely through the whole market area, and is recognised and enforceable 4. 5. 6.

(2002) 210 CLR 575; [2002] HCA 56. See 2.73. However, this is not always the case. Competition judgments seem, at times, to have been used to hinder international trade: see D Senz and H Charlesworth, ‘Building Blocks: Australia’s Response to Foreign Extraterritorial Legislation’ (2001) 2 Melbourne Journal of International Law 69.

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5.7

in all countries within the European Union and the European Economic Area. Under the European schemes, there are a number of exceptions to the rules for giving effect to another European judgment, but the jurisdiction of the rendering court cannot be questioned in the country enforcing the judgment. 5.5  Once the rules of jurisdiction for dealing with cross-border matters internal to Australia are placed alongside the rules for enforcing judgments across state borders, it becomes evident that the Australian judgments scheme represents an even purer direct jurisdiction model than the European Union and the European Economic Area schemes do. Unlike the European schemes, the Australian principles of jurisdiction do not incorporate common rules of jurisdiction for the federal, state and territory courts in cross-border matters. The combined effect of the Jurisdiction of Courts (Cross-vesting) Acts and the Service and Execution of Process Act 1992 (Cth) means that, for all Australian courts, jurisdiction in interstate cases should be allocated to the forum conveniens, or the most appropriate court. The limited subject-matter jurisdictions of the federal courts bring a qualification to this principle. However, as will be seen in this chapter, once a state or territory court renders a judgment, that judgment effectively becomes enforceable anywhere in Australia and its external territories. There are no exceptions to the enforceability of the judgment throughout the federation, whether those exceptions would have been based on jurisdiction or some other ground. This arguably makes the cross-border circulation of state and territory judgments through the Australian market area the freest in the world.7 5.6  This free-market area has recently expanded to include New Zealand, pursuant to the Trans-Tasman Proceedings Act 2010 (Cth), which came into effect on 11 October 2013. Part  7 of the Act, dealing with enforcement of New Zealand judgments in Australia, is discussed below.8 5.7  Interstate and foreign, non-New Zealand, judgments receive significantly different treatment under Australian law. A judgment made in another state or territory can only be enforced by registration under the Service and Execution of Process Act. To recognise or enforce a judgment made in a place outside Australia, the judgment creditor must do so either at common law or by registration under the Foreign Judgments Act 1991 (Cth). Nevertheless, the enactment of the Foreign Judgments Act simplified the law relating to the registration of judgments made outside Australia substantially. From 27 June 1993, all state and territory legislation under which foreign judgments could be registered became ineffective.9 With the exception of New Zealand judgments, the Foreign Judgments Act is now the sole statute under which foreign judgments can be registered. Accordingly, in this chapter consideration is given to the recognition and enforcement of judgments at common law; the registration of foreign judgments; and the registration of interstate judgments.

7.

8. 9.

R Mortensen, ‘Judgments Extension under CER’ [1999] 2 New Zealand Law Review 237 at 262–7; R Mortensen, ‘Autochthonous Essential: State Courts and a Cooperative National Scheme of Civil Jurisdiction’ (2004) 22 University of Tasmania Law Review 109 at 109–10. See 5.77. Foreign Judgments Act 1991 (Cth) ss 18, 19(b).

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Recognition and enforcement of judgments at common law 5.8  The recognition or enforcement of a foreign judgment at common law depends on the theory of obligation. Effectively, the theory is that there is an obligation on the part of the judgment debtor to pay a sum of money to the judgment creditor and that the foreign judgment is evidence of that obligation. However, the obligation is not enforceable because of the foreign judgment. As with any other debt, the obligation is strictly only enforceable when adjudged to be enforceable by a court in the forum and, accordingly, reduced to the form of a judgment of the forum court. Therefore, if the judgment creditor A wishes to be paid the sum given in a judgment by a judgment debtor B who is in the forum — and B is not prepared to pay that money voluntarily — A must institute proceedings in debt in the forum against B for the recovery of the money. Note that the effect of enforcement of a foreign judgment at common law is that the cause of action merges in the judgment. Whatever rights and obligations exist in respect of the debt are those created by the judgment and it is not permissible to ‘go behind’ the judgment to consider, for example, transaction documents.10 For enforcement purposes the court in the forum must have jurisdiction over B, whether at common law, under the Service and Execution of Process Act, or by its own rules of court. If B is in another state or territory, a court in Australia will be able to exercise jurisdiction in proceedings in debt brought against B. If B is outside Australia, then A can only seek to enforce the foreign judgment in the forum if the rules of court provide that the forum court has, by reason of the subject matter of the claim, power to allow B to be served outside Australia or to give leave to proceed against a person served outside Australia. In the Supreme Courts of the Australian Capital Territory, New South Wales, South Australia, Tasmania and Victoria, service can be effected on the defendant/judgment debtor B simply because the proceedings concern the enforcement of a foreign judgment in the state.11 In other states and the territories, the jurisdiction of the forum court would have to depend on the foreign judgment being ascribed a location in the forum, or emerging from a contractual relationship connected with the forum.12 As will be seen, when compared to enforcement at common law, one significant advantage of the procedure for registering a foreign judgment under the Foreign Judgments Act is the absence of any requirement that the Australian forum court have jurisdiction over B.13 5.9  For a forum court to accept that a judgment made in a foreign country creates an obligation on the part of the judgment debtor that the forum court is prepared to recognise and enforce, the judgment must satisfy the following four conditions: • • • • 10. 11. 12. 13.

the foreign court must have international jurisdiction; the judgment must be final and conclusive; the judgment must be for a fixed sum; and the parties must be identical. Macquarie Bank Ltd v Juno Holdings Sarl [2015] NSWSC 1260 at [25]–[26]. See 2.90–2.91. See 2.90. See 5.48.

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5.11

The rule of pleading is that A need only allege that B is indebted to A for a fixed sum. Hence, A need not plead these four requirements in the statement of claim. Strictly, B is to put any of these requirements in issue by pleading its absence in B’s defence.14 However, if any of these requirements is put in issue, the onus of proving that the requirement is satisfied probably rests on A.15 In practice, therefore, A’s lawyers would normally plead in the statement of claim that these requirements are satisfied. 5.10  Even if a foreign judgment satisfies the four requirements set out above, its enforcement in the forum could be resisted successfully by B on B’s pleading and establishing any one of the following four defences: • the foreign judgment was obtained by fraud; • the foreign judgment was obtained in proceedings in which B was denied natural justice; • enforcement of the foreign judgment in the forum would amount to the enforcement of a foreign penal or revenue law, or of a foreign governmental interest; or • the recognition or enforcement of the foreign judgment in the forum would be manifestly contrary to the public policy of the forum. Each of these requirements and defences is now considered.

International jurisdiction 5.11  ‘International jurisdiction’ means the competence that the law of the forum recognises that a court in a foreign country can exercise if its judgment is to be recognised or enforced in the forum. So, the international jurisdiction of the foreign court is not assessed by reference to the law of the relevant foreign country, although, hopefully, the foreign court will not have rendered judgment without the power to do so under its own law. International jurisdiction is assessed by reference to the law of the forum. As has been noted, under the common law of Australia, the rules of international jurisdiction roughly mirror the rules by which the forum court is able to exercise its own jurisdiction at common law.16 So, the foreign court is regarded in the forum as having had the international jurisdiction to render a judgment capable of being recognised or enforced in the forum when: • the defendant/judgment debtor B was present in the foreign place at the time B was served with the initiating process for the proceedings in the foreign court; • B submitted to the jurisdiction of the foreign court; or • the judgment made in the foreign court delivered title to, or possession of, tangible property located in the foreign place. The possibility that B’s residence, domicile or citizenship in the foreign place might also establish international jurisdiction will also be considered, as will the fact that the foreign court was exercising a reciprocal jurisdiction to that which the forum court is lawfully able to exercise. The Canadian principles by which the proceedings’ real and 14. 15. 16.

Robertson v Struth (1844) 5 QB 941; 114 ER 1503. R v McLeod (1890) 11 LR (NSW) 218 at 221. See 2.3–2.16.

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substantial connection with the foreign place establish international jurisdiction are also discussed below.17

Presence 5.12  Where the defendant-judgment debtor B is a natural person, the international jurisdiction of the foreign court will be recognised when B was served, while physically present in the foreign place, with the initiating process for the proceeding that led to the making of the foreign judgment.18 It is not sufficient for international jurisdiction to arise on this ground that another person present in the foreign place accepted service of initiating process on B’s behalf.19 If B was fraudulently induced to enter the foreign jurisdiction in order for service of process to be made upon him or her, then international jurisdiction may not exist.20 5.13  When B is a corporation, the international jurisdiction of the foreign court will also be recognised when B was served in the relevant foreign place with the initiating process for the foreign proceeding. A corporation is regarded as being present in a foreign country when it is carrying on business at a definite place in that country.21 A corporation may also be deemed to be carrying on business in the foreign country where it has an agent in the country which conducts the business of the corporation exclusively and has authority to bind it in contracts with third parties.22 The mere existence of a wholly-owned subsidiary of the corporation in the foreign country is insufficient to create a ‘presence’ unless the subsidiary is an agent in the sense above.23

Submission 5.14  The second general means by which the foreign court can have international jurisdiction over B is by B’s consent, or voluntary submission, to the court’s jurisdiction. There are two particular means by which submission to the jurisdiction of the foreign court might be shown: express agreement; or conduct inconsistent with a protest against the jurisdiction of the foreign court. Again, it should be noted how these principles mirror, although less perfectly, those by which a forum court is able to exercise jurisdiction over a person at common law.24 5.15  It has already been seen how, by a ‘forum clause’, parties to a contract can agree that any dispute in relation to the contract is to be determined by the courts of a given place — or of a number of places — and submit themselves to the jurisdiction of those courts.25 If parties A and B agree in a forum clause to submit to the jurisdiction of a foreign court and judgment is entered against B in that place, at common law the foreign 17. 18. 19. 20. 21. 22. 23. 24. 25.

See 5.21. Schibsby v Westenholz (1870) LR 6 QB 155 at 161; Herman v Meallin (1891) 8 WN (NSW) 38. Seegner v Marks (1895) 21 VLR 491. Close v Arnot [1997] NSWSC 569. Littauer Glove Corp v FW Millington (1920) Ltd (1928) 44 TLR 746 at 747: see also 2.9. Adams v Cape Industries plc [1990] Ch 433. Adams v Cape Industries plc [1990] Ch 433. See 2.13–2.16. See 4.11–4.31.

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court will be regarded as having exercised a proper international jurisdiction. It does not matter if B refused to appear before the foreign court. In these cases, it appears that the agreement to submit to jurisdiction must be expressed in the contract.27 Until recently, it was considered that a submission to the jurisdiction of a foreign court that can at best only be inferred from the terms of the contract is insufficient, in itself, to establish international jurisdiction.28 However, in Vizcaya Partners Ltd v Picard,29 the Privy Council held that there does not have to be an express contractual agreement to submit to the foreign jurisdiction but that consent can be express or implied. An agreement to submit to a foreign jurisdiction might also arise, in the case of a contract governed by foreign law, by an implied term under that law. A forum clause should, however, be distinguished from a choice of law clause, which specifies that the law of a given place shall be the proper law of the contract.30 A choice of law clause is not sufficient to establish international jurisdiction. 26

5.16  Obviously, where B has entered an unconditional appearance in response to A initiating proceedings in the foreign place, the foreign court is considered at common law to have had international jurisdiction in the proceedings.31 This, however, is not the case if B has arranged for the entry of a conditional appearance: that is, an appearance that allows B to argue actively against the jurisdiction of the foreign court. Contesting jurisdiction has two aspects: asserting that jurisdiction does not exist; or claiming that it should not be exercised on discretionary, appropriate forum grounds. The distinction between an unconditional and a conditional appearance is embodied in s 11 of the Foreign Judgments Act. This section provides that in any proceedings brought in Australia to enforce a foreign judgment the foreign court is not taken to have had jurisdiction to give the judgment merely because the judgment debtor entered an appearance; nor is the foreign court taken to have had international jurisdiction merely because the judgment debtor participated in the foreign proceedings for the purpose of contesting the jurisdiction of the court or for inviting the court, in its discretion, not to exercise its jurisdiction in the proceedings. The operation of s 11 is not limited to proceedings for the registration of a judgment under the Foreign Judgments Act. It applies ‘in any proceedings brought in Australia’, including those where enforcement is being sought at common law. 5.17  In more recent decisions it has been confirmed that a defendant will not be found to have submitted to the jurisdiction of the foreign court where it limits itself to challenging the existence or exercise of the court’s jurisdiction and takes no action indicating a willingness to contest the merits of the action.32 In Wong v Jani-King Franchising Inc,33 the defendant 26. 27. 28. 29. 30. 31. 32.

33.

Telesto Investments Ltd v UBS AG (2013) 94 ACSR 29; [2013] NSWSC 503. Vogel v Kohnstamm Ltd [1973] 1 QB 133; Adams v Cape Industries plc [1990] Ch 433 at 465–6. Cf Blohn v Desser [1962] 2 QB 116 at 123; Korea Resolution and Collections Corp v Lee [2013] NZHC 985 at [35]. [2016] UKPC 5. Dunbee v Gilman and Co (Australia) Pty Ltd [1968] 2 Lloyd’s Rep 394; Keenco v South Australia and Territory Air Service Ltd (1974) 8 SASR 216. Victorian Philip Stephan Photo Litho Co v Davies (1890) 11 LR (NSW) 257. Bushfield Aircraft Co v Great Western Aviation Pty Ltd (1996) 16 SR (WA) 97; filing a defence that addresses matters going to the merits or a counter-claim is a submission: Martyn v Graham [2003] QDC 447 at [23]; Fletcher Steel v Moghe [2006] NSWSC 425 at [9]–[11]. [2014] QCA 76.

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was held to have submitted to the jurisdiction of the foreign court in circumstances where it had not only entered a ‘special appearance’ for the purposes of contesting jurisdiction but had also filed an opposition to joinder of another defendant to the foreign action. The defendant/judgment debtor’s reason for opposing the joinder was that it would delay the trial and so ‘went beyond anything that was needed to contest the court’s jurisdiction’.34

Property in the foreign country 5.18  If the foreign judgment was made in proceedings in rem, the forum court will recognise the international jurisdiction of the foreign court where the property in question was deemed, by Australian rules for ascribing a location to property, to be situate in the relevant foreign place.35 In this case, proceedings in rem should be understood as any that relate to the determination of title to, or possession of, property.36 They are not limited to maritime proceedings. However, it is possible to understand this rule of international jurisdiction as an example of the choice of law rule by which rights in property are determined in accordance with the law of the place where the property was situate.37 Given that these choice of law rules do not necessarily apply when the property in question is intangible, it is probable that this ground of international jurisdiction is only available when the foreign judgment related to immovable property or chattels.

Domicile, citizenship and residence 5.19  In the Manitoba Court of Appeal’s decision in Marshall v Houghton,38 it was held that where the judgment debtor B is ordinarily resident in a foreign place, the relevant foreign courts will, for that reason, have international jurisdiction to render a judgment capable of being recognised or enforced in the forum.39 Equally, the court in Marshall held that international jurisdiction would be established if B were domiciled in the foreign place. There is more — but old — authority for this latter proposition than there is for residence as a ground of international jurisdiction, so it should at least be considered possible that the judgment is enforceable at common law when B was domiciled in the place where the judgment was made.40 There is also a possibility that B’s nationality in the foreign place will be sufficient to establish international jurisdiction. This was certainly the opinion of Sully J in the Supreme Court of New South Wales in Federal Finance & Mortgage Ltd v Winternitz.41 However, in an appeal from the Punjab — Sirdar Gurdyal Singh v Rajah of Faridkote — the Privy Council effectively ruled out nationality as a good ground of international jurisdiction,42 and the trend of authority remains against it.43 Nonetheless,

34. 35. 36. 37. 38. 39. 40. 41. 42. 43.

At [16]. For a recent New Zealand decision, see Gordhan v Kerdemelidis [2013] NZHC 566. The Despina GK [1983] 1 All ER 1. SS Pacific Star v Bank of America Trust & Savings Assn [1965] WAR 159. See 20.1–20.4 and 21.1–21.36; Castrique v Imrie (1870) LR 4 HL 414 at 429. [1923] 2 WWR 553. See also, to the same effect, Korea Resolution and Collections Corp v Lee [2013] NZHC 985 at [29]. Emanuel v Symon [1908] 1 KB 302 at 309, 311; Jaffer v Williams (1908) 25 TLR 12 at 13. SC(NSW), Sully J, 9 November 1989, unreported, BC8901479. [1894] AC 670 at 683–4. See Rainford v Newell-Roberts [1962] IR 95.

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5.21

in a recent, uncontested decision in New South Wales, the Supreme Court recognised a judgment on the basis of the defendant’s ‘active nationality’ of the foreign country, which was shown by the fact that he used his passport regularly in international travel. Despite the attempt in this decision to give nationality a stronger basis for jurisdiction by requiring it to be ‘active’ (as opposed to dormant), it must remain a dubious ground of international jurisdiction in a world where persons increasingly have multiple citizenships. 44

Reciprocal jurisdictions 5.20  It will be seen, when discussing the recognition of decrees made in matrimonial causes, that a court in Australia is prepared to recognise a decree of annulment or divorce when it was made by a foreign court that was exercising a reciprocal jurisdiction to that which an Australian court could exercise.45 However, this does not appear to be a ground on which a court in Australia will be prepared to recognise or enforce a general civil judgment made in another place. For example, in Crick v Hennessy46 an action was brought in the Supreme Court of Western Australia to enforce a judgment made in England. The High Court of Justice in England had exercised jurisdiction on the basis that there were good grounds under the rules of court for serving the defendant outside England. This paralleled the jurisdiction that the Supreme Court of Western Australia was also able to exercise. However, Burt J held that the exercise of a reciprocal jurisdiction to that which the forum court was prepared to exercise was not sufficient to establish international jurisdiction at common law. The English judgment was therefore unenforceable in Western Australia. In Re Dulles Settlement (No 2), Dulles v Vidler,47 Denning LJ offered the opinion that reciprocity was able to establish international jurisdiction at common law. This view is nevertheless anomalous. The position adopted in Crick v Hennessy is strongly reinforced by the case law.48

Real and substantial connection 5.21  The Canadian courts have developed a broad basis for the recognition of extraterritorial judgments where the judgment is made in a place that has a real and substantial connection with the action or the defendant. This was first accepted for the recognition in one province of a judgment made in another, in Morguard Investments v De Savoye.49 In Morguard, La Forest J, for the Supreme Court of Canada, held that a departure from the narrow English rules for recognising judgments, which Canada had inherited, was justified within the context of the Canadian federation. Efforts were therefore to be made to give Canada something akin to a ‘full faith and credit’ principle that, unlike Canada, the Australian and United States Constitutions provided for explicitly.50 It was 44. 45. 46. 47. 48.

49. 50.

Independent Trustee Services Ltd v Morris (2010) 79 NSWLR 425; [2010] NSWSC 1218; see also Liu v Ma [2017] VSC 810. See 14.33–14.38. [1973] WAR 74. [1951] Ch 842 at 851. Sharps Commercials Ltd v Gas Turbines Ltd [1956] NZLR 819; Re Trepca Mines Ltd [1960] 3 All ER 304; Societe Co-op Sidmetal v Titan International Ltd [1966] 1 QB 828; Malaysia-Singapore Airlines Ltd v Parker [1972] 3 SASR 300 at 304; Felixstowe Dock & Railway Co v United States Lines Inc [1989] QB 360 at 373–6. [1990] 3 SCR 1077. See 5.69–5.71.

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therefore held that a Canadian provincial court should recognise the judgment of another province’s courts where the jurisdiction that the rendering province’s court was exercising was based on a real and substantial connection between the province and the action of the defendant, and on ‘principles of order and fairness’.51 Despite the interprovincial dimension in this broad ground of recognition, in Beals v Saldanha52 the Supreme Court of Canada subsequently accepted that the real and substantial connection ground of recognition also applied for the recognition of foreign judgments. In Beals, a Florida judgment was recognised in Ontario on this ground. The real and substantial connection basis of recognition is adapted from a similar ground for the recognition of foreign annulments and divorces.53 However, the assessment made by Canadian courts for the recognition of general civil judgments probably differs from the approach taken for matrimonial decrees in that, under the Morguard and Beals standard, the court is ultimately determining whether it was unfair to expect the defendant to have litigated in the place where judgment was rendered. Although developments in Canada have influenced radical changes in other aspects of Australian private international law,54 it is suggested that it is both unlikely that the real and substantial connection ground for recognising general civil judgments will be followed in Australia, and undesirable that it should. First of all, the full faith and credit imperatives of the Commonwealth Constitution and the Service and Execution of Process Act 1992 (Cth) already give even more generous recognition of interstate judgments across Australia than the Morguard standard has provided for Canada.55 The ‘real and substantial connection’ ground would therefore add nothing to the recognition of interstate judgments in Australia and in that respect is unnecessary. Second, the ground is so broadly and flexibly defined as to give little guidance as to when a foreign judgment with some connection with the place where it was rendered will not be recognised. Beals probably gives Canada the most generous rules for the recognition of foreign judgments (made outside a federal or, for example, European Union context) in the world.56 It has therefore been suggested that Morguard and Beals have not given a principle for determining whether a court from another province or country had jurisdiction to give a judgment that bound the parties outside its borders, but merely ‘a collective expression for a set of principles’.57 Accordingly, the real and substantial connection test gives almost ‘total flexibility’ and, as a consequence, almost no certainty.58 Blom and Edinger therefore conclude that Canada now needs rules for the recognition of interprovincial and foreign judgments that either supplement, or replace, the real and substantial connection standard.59 The recognition of general civil judgments, more so than 51. 52. 53. 54. 55. 56. 57. 58. 59.

At 1103–9. [2003] 3 SCR 416. See 14.32. See 7.28. See 5.69–5.75. H S Fairley, ‘Open Season: Recognition and Enforcement of Foreign Judgments in Canada after Beals v Saldanha’ (2004) 11 ILSA Journal of International and Comparative Law 304 at 316–18. J Blom and E Edinger, ‘The Chimera of the Real and Substantial Connection Test’ (2005) 38 University of British Columbia Law Review 373 at 418–19. Blom and Edinger, above n 57, at 416. Blom and Edinger, above n 57, at 418. The Court Jurisdiction and Proceedings Transfer Act, enacted in British Columbia, Nova Scotia and Saskatchewan, may provide an example of such ‘rules’, although the Act does not expressly address the issue of recognition of foreign or inter-provincial judgments.

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matrimonial decrees, is an area where certainty and predictability serve the useful roles of enabling the planning of transactions, and encouraging the settlement of disputes. The Canadian jurisprudence only seems to undermine these policies and is best avoided.

Final and conclusive 5.22  To be recognised or enforced at common law, a judgment made in a foreign place must be final and conclusive — it must be res judicata. This means that the matter could not be relitigated by the same parties in the same court. Accordingly, a judgment that is subject to appeal is generally still regarded as being final and conclusive.60 Yet, where an appeal is pending in the foreign country’s courts in respect of the judgment, the enforcing court may stay enforcement of the judgment pending the outcome of the appeal.61 In most cases, a judgment made in default of appearance is also regarded as final and conclusive.62 However, if the defendant/judgment debtor B has a right to have a judgment made by default set aside without having to show cause to do so, then the judgment could not be regarded as final and conclusive until B’s right in that respect expires.63 In Nouvion v Freeman,64 the House of Lords considered that a Spanish judgment made in summary proceedings, where the defendant’s range of defences was limited, was not final. The reason was that the defendant could subsequently bring plenary proceedings in the same court where it would have access to all available defences, and until this occurred the Spanish judgment was unenforceable at common law in England. By contrast, where a defendant was entitled to apply to the foreign court to stay enforcement of its judgment or relieve the defendant from complying with its terms, but not challenge the judgment’s validity, the foreign judgment was final and conclusive.65

Fixed sum 5.23  The theory of obligation assumes that the foreign judgment will represent an obligation on the part of the defendant/judgment debtor B to pay a sum of money to the plaintiff/judgment creditor A. Consequently, at common law a foreign judgment will only be recognised or enforced if it represents a fixed sum. If the judgment is for a sum that cannot be calculated, it will not be capable of enforcement.66 5.24  The requirement that the judgment made in the foreign place be for a fixed sum has historically precluded enforcement in the forum of orders in specie akin to equitable decrees of specific performance or injunction. There are obvious practical problems in 60. 61. 62.

63. 64. 65. 66.

Colt Industries v Sarlie (No 2) [1966] 3 All ER 85. JP Morgan Chase Bank NA v PT Indah Kiat Pulp and Paper Corp [2012] NSWSC 1279. Barclays Bank Ltd v Piacun [1984] 2 Qd R 476; Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508; Mendikwae Ltd v Mezin [2000] QSC 56; Schnabel v Yung Lui [2002] NSWSC 15 at [77]; XPlore Technologies Corp of America v Tough Corp Pty Ltd [2008] NSWSC 1267 at [17]; Telesto Investments Ltd v UBS AG (2013) 94 ACSR 29; [2013] NSWSC 503 at [188]; Doe v Howard [2015] VSC 75 at [80]. Jeannot v Furst (1909) 25 TLR 424 at 425. (1889) 15 App Cas 1. Mobi-Light Inc v KK Machinery Pty Ltd [2010] WADC 105 at [33]. Sadler v Robins (1808) 1 Camp 253; 170 ER 948; Taylor v Begg [1932] NZLR 286.

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obtaining the enforcement of orders of this kind at common law since the defendant will normally have to be present within the jurisdiction of the enforcing court, or have assets there, to ensure compliance with the orders. However, it does not necessarily preclude an Australian court with jurisdiction in equity from transforming an order in specie made in a foreign place into an appropriate equitable decree enforceable in the forum.67 For example, in White v Verkouille68 McPherson J in the Supreme Court of Queensland recognised an order made in Nevada for the appointment of a receiver where the defendant had a sufficient connection with the foreign court. There is nothing unusual in this approach, as courts in Australia, exercising jurisdiction in probate, are prepared to recognise foreign appointments of personal representatives in multi-state succession cases.69 Yet, in more recent cases, courts have shown an increased willingness to relax the strictures of the ‘fixed sum’ rule.70 In Davis v Turning Properties Pty Ltd,71 Campbell J of the Supreme Court of New South Wales granted Mareva relief in respect of assets in Australia in support of a Mareva order granted in a foreign country. The court saw this action as an example of a court making its remedies available to assist proceedings in a foreign court. The court stated that it had an inherent jurisdiction to make a Mareva order in aid of the enforcement of a foreign judgment in Australia, whether that judgment had been obtained or not. This view was recently followed by the High Court in PT Bayan Resources TBK v BCBC Singapore Pte Ltd.72 Even more dramatically, in Pro Swing Inc v Elta Golf Inc,73 the Supreme Court of Canada held that the fixed sum rule no longer represented the law of Canada. The court emphasised the outdatedness of the rule at a time of increased technological change and modern means of travel and communications, and the consequent need for national courts to cooperate with one another in the resolution of cross-border disputes. The court laid down three criteria to assist courts in determining whether to enforce a non-monetary judgment: first, that the foreign order be clear and specific as to the rights, duties and obligations that it imposes on the defendant;74 second, that the order be clear about whether it was intended to apply outside the territory of the court of origin;75 and third, whether the proceedings have a sufficient connection with the jurisdiction of enforcement to warrant the local court’s intervention.76 It remains unclear whether Australian courts are ready to embrace the full liberalisation of Pro Swing, but in a very recent decision of the Supreme Court of New South Wales, Independent Trustee

67. 68. 69. 70. 71. 72.

73. 74. 75. 76.

Houlditch v Marquess of Donegal (1834) 2 Cl & F 470; 6 ER 1232. [1990] 2 Qd R 191. See 22.7–22.13. See, generally, K Pham, ‘Enforcement of Non-Monetary Judgments in Australia’ (2008) 30 Sydney Law Review 663. (2005) 222 ALR 676. (2015) 258 CLR 1. See also Severstal Export GmbH v Bhushan Steel Ltd (2013) 84 NSWLR 141; [2013] NSWCA 102, where a mareva order was granted in aid of enforcement of a foreign judgment but the jurisdictional basis relied upon was r 25 of the Uniform Civil Procedure Rules 2005 (NSW), not the court’s inherent jurisdiction. [2006] 2 SCR 612. At 629, 653. At 640–2. At 638–9.

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Services Ltd v Morris, the court lent further support to the trend away from the fixed sum rule by recognising orders made by an English court for declarations of equitable breaches and an account of profits. 77

Identical parties 5.25  The defendant in the proceedings brought in the forum must be the same as the judgment debtor in the foreign place, and the plaintiff in the forum must be the same as the judgment creditor in the same foreign place. In Blohn v Desser,78 a judgment was rendered in Austria against a partnership, Salvator Maskafee Gesellschaft Deir & Co. However, when proceedings were brought in England, the named defendant was Margarete Desser, one of the partners in Salvator Maskafee Gesellschaft Deir & Co. As a judgment made against a partnership in Austria was not, by the law of Austria, considered enforceable against an individual partner, the parties in Austria and England were not identical. Accordingly, the judgment was not enforceable at common law in England.

Fraud 5.26  If the judgment made against the defendant/judgment debtor B in the foreign place was obtained by fraud, the foreign judgment is still possibly enforceable by the plaintiff/ judgment creditor A in the forum. However, if B raises and establishes the question of fraud by way of defence to the proceedings in the forum, then the judgment will not be recognised or enforced. The most debated question in this context is whether fraud can include matters that were raised, considered and determined in the foreign court — or whether it is limited to matters that arise in evidence that is only discovered after the foreign judgment was rendered. This is called ‘extrinsic fraud’. In purely domestic proceedings in Australia and other common law countries, a judgment can only be ‘impeached’ or relitigated if the fraud were extrinsic. To allow reconsideration of a matter of fraud that has already been adjudged by a court is, in effect, to allow the merits of the case to be reargued.79 In proceedings for the recognition or enforcement of a foreign judgment, however, common law courts have traditionally been prepared to allow B to raise a question of fraud like perjury or the falsification of documents even when the foreign court considered that very issue. In Ahmed v Habib Bank,80 a Pakistani judge had explicitly found against the allegations of fraud. However, in proceedings to enforce the judgment in England, Mummery LJ thought that the Pakistani judgment lacked reasons for concluding that there was no fraud and, further, that there appeared to be documentary evidence to support the defendant’s claim. The English Court of Appeal granted a new trial. However, this was despite the English court’s acceptance that the foreign court was correct to be ‘critical’ of the defendant’s evidence.81 The result is that the foreign judgment is not res judicata on the question of

77. 78. 79. 80. 81.

(2010) 79 NSWLR 425; [2010] NSWSC 1218. [1962] 2 QB 116. Duchess of Kingston’s case [1775–1802] All ER Rep 623. [2001] EWCA Civ 1270. At [51].

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fraud, and the forum court can find that fraud existed in the foreign proceedings even when the foreign court found otherwise. 5.27  There are obvious difficulties in the failure to limit the defence of fraud to extrinsic fraud discovered after judgment was rendered in the foreign place. First, it seems to be incompatible with the recognition that the foreign judgment is final and conclusive and res judicata on all other issues adjudged by the foreign court. Second, it can encourage the defendant B not to participate completely in the foreign proceedings. For example, the rule enables B to withhold evidence of fraud in the foreign proceedings in the knowledge that it will be possible to raise the same evidence in proceedings to enforce the same judgment in the forum.82 This is despite the decision of the English Court of Appeal in Israel Discount Bank v Hadjipateras,83 where it was held that a defendant who failed to raise a defence of undue influence in proceedings in New York could not, as a consequence, raise that defence in England. In Hadjipateras, the defendant had adopted this strategy — in the event, unwisely — because his perception was that the English law of undue influence was more favourable to his case. It is, nevertheless, difficult to understand why that strategy would be permissible in questions of common law fraud but not for undue influence — which is a species of equitable fraud. Third, as already observed, the approach differs from that taken to domestic judgments. However, the policy of finalising litigation would seem to be as applicable in multi-state cases as in domestic. The more liberal approach taken in proceedings for the recognition or enforcement of foreign judgments may arguably be seen as an example of parochial adjudication.84 5.28  A long line of English authorities supports the proposition that the defence of fraud is not limited to extrinsic fraud.85 The rule was confirmed by the House of Lords in Owens Bank Ltd v Bracco.86 The only retreat from this position in England arose in House of Spring Gardens Ltd v Waite.87 There, the original judgment was made in Ireland, but the defendants tried again in Ireland to have that judgment set aside on the ground of fraud. This failed, and the plaintiff sought to enforce the judgment in England. The English court considered that, as the question of fraud had already been relitigated in Ireland, the defendants could not raise it again in England. 5.29  The English approach to the defence of fraud has been accepted in New Zealand.88 In contrast, the Canadian courts have only allowed a defendant/judgment debtor B raising 82. 83. 84.

85. 86. 87. 88.

Syal v Heyward [1948] 2 KB 443. [1983] 3 All ER 129. But compare R Garnett, ‘Fraud and Foreign Judgments: The Defence that Refuses to Die’ (2002) 2 Journal of International Commercial Law 161, who argues that the fraud defence performs the important function of allowing the defendant to ventilate one of the most serious allegations in the administration of justice — that a judgment was dishonestly procured — in circumstances where it may not have received a fair or adequate hearing on the issue in the foreign court. Such an exceptional situation justifies the departure from the res judicata principle in the case of fraud. See, for example, Abouloff v Oppenheimer (1882) 10 QBD 295; Vadala v Lawes (1890) 25 QBD 310; Jet Holdings Inc v Patel [1990] QB 335. [1992] 2 AC 443. [1991] 1 QB 241. Svirkis v Gibson [1977] 2 NZLR 4 at 10; Gordhan v Kerdemelidis [2011] NZHC 1808 at [26]–[31], where the article referred to at above n 84 was cited with approval. See also Yingling v Gifford [2016] NZHC 1556 at [11]–[13]; Emajor v Emajor [2016] NZHC 2022 at [65]–[67].

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the defence of fraud to rely on extrinsic evidence. In Australia, the matter has not, until very recently, been considered by any appellate court. In Norman v Norman (No 2), Fox J held that B was not limited to reliance on extrinsic evidence in raising the defence of fraud.90 However, in Keele v Findley,91 Rogers CJ Comm D in the Supreme Court of New South Wales gave extended consideration to the question and preferred the Canadian approach. He also noted the consistent criticism of the English cases, and the importance of aligning the treatment of foreign and domestic judgments. While some commentators have argued that Keele v Findley embodies an eminently sensible approach to the question,92 it was more recently rejected in the New South Wales Supreme Court in Close v Arnot93 and Yoon v Song,94 and, until very recently, in the majority of Australian decisions since.95 The court in Close v Arnot held that Keele v Findley did not apply in circumstances where the foreign judgment was undefended and the defendant had ‘good reason’ for not contesting the plaintiff ’s claim in the foreign court. The good reason found in that case was that the defendant could not afford the cost of legal representation. In Yoon v Song, Dunford J accepted that the older English approach correctly stated the law.96 That case involved a joint venture in Korea. A Korean judgment was obtained against the defendant, who was subsequently sued in New South Wales in proceedings to enforce the Korean judgment. The defendant argued that the Korean judgment had been obtained by fraud as the plaintiff, in the Korean proceedings, had claimed money that had actually been paid to a third party, but had not disclosed this to the Korean court. This case considered whether the English rule — that it is not necessary to show that fresh facts have been found since the original judgment in order to find fraud — was the correct approach. All that was required was that it be shown that the foreign court was misled in coming to a wrong decision by evidence that was false. Dunford J added:97 ‘I am not satisfied that Keele v Findley was correctly decided. Indeed the facts of this case demonstrate in my mind good reason for applying a different test of fraud in respect of foreign judgments to that applied in domestic judgments …’ . In the Australian decisions since Yoon v Song which have adopted the English approach, the courts have, however, emphasised the onerous burden on the defendant in terms of proving fraud98 and consequently have rejected the defence on each occasion. Such burden arguably limits the operation of the defence to the very serious and clear cases. 89

89. 90. 91. 92. 93. 94. 95.

96. 97. 98.

Jacobs v Beaver (1908) 17 Ont LR 496 at 506; McDougall v Occidental Syndicate Ltd (1912) 4 DLR 727; Manolopoulos v Pnaiffe [1930] 2 DLR 169. (1968) 12 FLR 39 at 47. (1990) 21 NSWLR 444. M Davies, A Bell and P Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, Sydney, 2014, at [40.74]. [1997] NSWSC 569. (2000) 158 FLR 295; [2000] NSWSC 1147. See, for example, De Santis v Russo (2001) 27 Fam LR 414; [2001] QSC 065; Benefit Strategies Group Inc v Prider (2005) 91 SASR 544; [2005] SASC 194; Mobilight Inc v KK Machinery Pty Ltd [2010] WADC 105; Ramanathan v Naidu [2007] NSWSC 693 at [24] (under the Foreign Judgments Act 1991 (Cth)); cf XPlore Technologies Corp of America v Tough Corp Pty Ltd [2008] NSWSC 1267 at [19]. (2000) 158 FLR 295 at 300; [2000] NSWSC 1147. At 300. See, in particular, De Santis v Russo (2001) 27 Fam LR 414; [2001] QSC 065 at [16]; Ramanathan v Naidu [2007] NSWSC 693 at [24].

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5.30  Recently, however, there appears to have been a swing back in favour of Keele v Findley. In Quarter Enterprises Pty Ltd v Allardyce Lumber Co Ltd,99 the New South Wales Court of Appeal said that there were ‘powerful reasons for preferring the views in Keele’, but ultimately found it unnecessary to choose between the competing approaches as there was no evidence of an intent to deceive the foreign court.100 The Keele approach was also adopted by the Supreme Court of Victoria in Doe v Howard101 on the basis that ‘there is a public interest in the finality of a judicial determination’.102 The court in Howard further held that the same rule should apply to foreign default judgments.103 In the absence of High Court authority the matter is not entirely settled but a detectable momentum back in favour of Keele is apparent.

Natural justice 5.31  If the defendant/judgment debtor B was denied natural justice in the proceedings brought in the foreign place, B can successfully defend proceedings in the forum for the recognition or enforcement of the judgment. The rules of natural justice are twofold: that there be due notice of the proceedings; and that both parties be given a fair opportunity to present their cases. In private international law, natural justice has been more an issue in proceedings for the recognition of a decree of dissolution or annulment than it has in the recognition or enforcement of a general civil judgment.104 5.32  The courts will refuse to give effect to a foreign judgment where no notice of the foreign proceedings was given to B, even if the relevant foreign law allows proceedings to be brought without providing notice to B.105 This rule can be qualified, especially where B has voluntarily submitted (for example, by a forum clause) to the jurisdiction of the foreign courts before the proceedings in the foreign place were initiated and, at the time of submission, B was aware that proceedings could be brought there without having to give notice.106 Even if B has been given notice of the foreign proceedings and an adequate opportunity to appear, there may still be a denial of natural justice if B is not properly advised of the consequences of a failure to appear.107 5.33  As is generally the case under principles of natural justice, a foreign judgment will not be recognised or enforceable in the forum where the foreign judge had a material or personal interest in the outcome of the proceedings.108 More recently, the Privy Council in AK Investment CJSC v Kyrgyz Mobile Tel Ltd109 suggested that an English court may examine the question whether a foreign court or foreign court system is corrupt or lacking 99. 100. 101. 102. 103. 104. 105. 106. 107. 108. 109.

(2014) 85 NSWLR 404; [2014] NSWCA 3. (2014) 85 NSWLR 404; [2014] NSWCA 3 at [136]–[145]. [2015] VSC 75. At [129]. At [133]. See 14.44–14.46. Buchanan v Rucker (1808) 9 East 192; 103 ER 546. Jamieson v Robb (1881) 7 VLR 170. Adams v Cape Industries plc [1990] Ch 433 at 564–6. Price v Dewhurst (1837) 8 Sim 279; 59 ER 111. [2012] 1 WLR 1804 at 1830.

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in independence but only where there is cogent evidence to support such allegations. This view appears to have been accepted by the Full Court of the Federal Court in Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport.110 Where however the defendant is aware of the court’s bias at the time of the foreign proceedings but fails to raise the issue within the time specified under the law of the foreign country, it is barred from doing so at the enforcement stage.111

Public policy 5.34  It will be seen in Chapter 8 that a court in Australia has power to refuse to apply the usual law of the cause in a choice of law case on the ground that to do so would be contrary to the public policy of the forum.112 Similarly, the forum court has power not to recognise or enforce a foreign judgment where to do so would produce an outcome that is contrary to the public policy of the forum. This has also been more common as a defence to the recognition of matrimonial decrees than it has for the recognition or enforcement of general civil judgments.113 While the defence gives some flexibility to the court when deciding whether to enforce the foreign judgment, in the clear majority of Australian cases the public policy defence has been narrowly construed. The defence has been said to be only available where a fundamental question of moral and ethical policy, fairness of procedure or illegality is involved,114 or where there is ‘substantial injustice, either because … [the judgment involves] a repugnant foreign law or a repugnant application of the law in a particular case’.115 A narrow approach to public policy is justified by the need to respect and recognise other sovereign states’ laws and institutions.116 5.35  It has been seen that the traditional English approach to the defence of fraud allows the defendant to raise the defence in proceedings to enforce a foreign judgment even where the issue was placed before the foreign court in the original proceeding. In Israel Discount Bank of New York v Hadjipateras,117 however, the English Court of Appeal suggested that the defence of public policy may not be invoked at the stage of enforcement if the circumstances underlying the defence provided a similar defence in the action before the foreign court. In that case, the bank sued the defendant Hadjipateras — father and son — in New York under guarantees by which the Hadjipateras had guaranteed repayments of loans made by the bank to Liberian companies. The court in New York rendered judgment against the Hadjipateras, which the bank then tried to enforce against them in England. There, the

[2013] FCAFC 106. Mulugeta Guadie Mengiste v Endowment Fund for the Rehabilitation of Tigray [2017] EWCA Civ 1326. See 8.57–8.69. See 14.47–14.48. Stern v National Australia Bank [1999] FCA 1421 at [143]; De Santis v Russo (2001) 27 Fam LR 414; [2001] QSC 065 at [22]. 115. Jenton Overseas Investment Pte Ltd v Townsing (2008) 221 FLR 398; [2008] VSC 470 at [22]. 116. Jenton Overseas Investment Pte Ltd v Townsing (2008) 221 FLR 398; [2008] VSC 470 at [22]. See also Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International BV (No 3) (2013) 300 ALR 741; [2013] FCA 85 at [44] (rev’d on other grounds: [2013] FCAFC 106); Ross v Ross [2010] NZCA 447; Kok v Resorts World at Sentosa Pte Ltd [2017] WASCA 150. 117. [1983] 3 All ER 129. 110. 111. 112. 113. 114.

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son argued that his father had exercised undue influence over him when he — the son — entered the guarantee and so, on that ground, it would be contrary to the public policy of England to enforce the judgment. Undue influence was admitted. However, in the Court of Appeal Stephenson LJ held that it should also be accepted that the law of New York on undue influence was the same as the law of England — even though the son believed that he had some advantage in raising the point in England that he would not have had in New York.118 The judge considered that the judgment debtor should take all possible defences that he had in the place where the judgment was made, and should not try to draw out litigation by reserving the defence until the judgment came to be enforced in another place at a later time. The court found for the bank.

Penal and revenue judgments 5.36  Australian courts will not enforce foreign penal or revenue judgments, a principle which is part of the general rule against enforcement of foreign penal or revenue laws. This issue is discussed in Chapter 8.

Incompatible judgments 5.37  Where the matter adjudged in the foreign place has already been adjudged differently in the forum, it will normally be contrary to the public policy of the forum to recognise or enforce the foreign judgment.119 The question then arises as to the approach to be taken when the matter is adjudged in one foreign country — Hentzau — and adjudged differently in another foreign country — Ruritania. In this case, is either the Ruritania or Hentzau judgment capable of being enforced in the forum, and if so, which one? The question arose in Showlag v Mansour120 where judgment was rendered in the same matter in England and in Egypt, and then there was an attempt to enforce both judgments in Jersey. The English judgment favoured the plaintiff, Showlag, and was entered on 5 December 1990. The Egyptian judgment did not recognise Showlag’s claim and therefore favoured the Egyptian defendant, Mansour. At the earliest, it was entered on 23 May 1991. In Jersey, proceedings were brought to enforce the English judgment against Mansour but the Egyptian judgment was raised as a defence. Both judgments were enforceable in Jersey. These proceedings went on appeal to the Privy Council. There, Lord Keith of Kinkel held that the principle is that ‘where there are two competing foreign judgments each of which is pronounced by a court of competent jurisdiction and is final and not open to impeachment on any ground then the earlier in time must be recognised and given effect to the exclusion of the other.’121 He added: ‘At the same time it is to be kept in mind that there may be circumstances under which the party holding the earlier judgment may be estopped from relying on it’.122 This appears to be the common law rule, although in this case enforcement was sought under

118. 119. 120. 121. 122.

At 134. Vervaeke v Smith [1983] 1 AC 145. [1995] 1 AC 431. At 440–1. At 441.

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Jersey enforcement of foreign judgments legislation. In Showlag v Mansour, the English judgment was the earlier in time and therefore was recognised and enforced.

Foreign competition judgments 5.38  The federal Attorney-General has power to disallow the enforcement of any anti-trust judgment made by a foreign court. This also enables the Attorney-General to allow only part of the judgment to be enforced, and the remaining part not to be. The disallowance is not automatic, and is exercisable only when the Attorney-General believes that it is desirable for the protection of the national interest that the foreign court assumed an excessive jurisdiction, or that the foreign court exercised a jurisdiction or power that was contrary to international law or inconsistent with international comity or international practice.123

Estoppel and foreign judgments 5.39  In most cases it will be the plaintiff who seeks to enforce a foreign judgment against the defendant in the forum. A foreign judgment may, however, also be relied upon by a defendant to prevent a plaintiff relitigating the same matter in the forum, first, where a judgment in favour of the plaintiff has been wholly satisfied and second, where the plaintiff ’s action was dismissed in the foreign court. In such cases, the foreign judgment may be pleaded by the defendant as a cause of action estoppel or res judicata in any subsequent action in an Australian forum between the same parties on the same cause of action. A cause of action estoppel exists where the factual circumstances required for establishing the requirements to relief are the same in both the local and foreign proceedings, even where the legal effect of conduct and method of proof of conduct might be different. The causes of action in both proceedings must therefore be in substance the same.124 A mistake or error of law in the foreign judgment does not preclude the operation of the doctrine of cause of action estoppel.125 5.40  In Carl Zeiss Stiftung v Rayner and Keeler (No 2),126 the House of Lords held that a foreign judgment may also give rise to an issue estoppel, in certain circumstances. An issue estoppel operates to preclude a matter determined in a judgment being reopened in later proceedings in the forum between the same parties. Three requirements for the operation of this doctrine were identified: that the same issue has been decided by a court of competent jurisdiction; that the foreign judgment was final and conclusive127 and on the merits; and

123. Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth) s 9. For a comprehensive discussion on ‘blocking measures’ taken against foreign competition judgments, see Senz and Charlesworth, above n 6. 124. Telesto Investments Ltd v UBS AG (2013) 94 ACSR 29; [2013] NSWSC 503 at [193]–[201]. 125. SK Foods LP v SK Foods Australia Pty Ltd (in liq) (No 3) (2013) 302 ALR 260; [2013] FCA 526. 126. [1967] 1 AC 853. 127. The issue of finality of the foreign judgment is governed by the law of the country in which the judgment was rendered: see R Garnett, Substance and Procedure in Private International Law, Oxford University Press, Oxford, 2012, at [7.38].

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that the parties to the judgment (or their ‘privies’)128 were the same parties to the proceedings in the forum (or their privies). The expression ‘on the merits’ was later defined in The Sennar (No 2)129 as a decision that ‘establishes certain facts proved or not in dispute, states what are the relevant principles of law applicable to such facts and expresses a conclusion with regard to the effect of applying such principles to the factual situation concerned’. In that case, the House of Lords held that a Dutch court’s decision that an exclusive jurisdiction clause in a bill of lading applied to the plaintiff ’s claim, although procedural in that it concerned the court’s jurisdiction, was still a decision ‘on the merits’ which prevented the plaintiff from subsequently proceeding in an English court. Consequently, a foreign judgment may found an issue estoppel even where the judgment was interlocutory in nature. 5.41  The above principles have been accepted as authoritative in Australian law.130 For example, in Armacel Pty Ltd v Smurfit Stone Container Corp131 an issue estoppel was held to arise from a decision of a United States court that a choice of forum provision stipulating the New South Wales courts was not an exclusive jurisdiction clause. Consequently, a party was barred from asserting that the clause was exclusive in subsequent proceedings in New South Wales. In Telesto Investments Ltd v UBS AG132 it was held that a finding by a Singapore court in granting an anti-suit injunction to restrain a party from pursuing proceedings in New South Wales, that the party had acted vexatiously and oppressively, amounted to an issue estoppel preventing the party from arguing that its conduct was not vexatious and oppressive in subsequent New South Wales proceedings. Nevertheless, such a conclusion did not oust the New South Wales court’s discretion to determine whether it was a ‘clearly inappropriate forum’ under the test in Voth v Manildra Flour Mills Pty Ltd.133 By contrast in Central Petroleum Ltd v Geoscience Resource Recovery LLC,134 a determination by a foreign court that it had personal jurisdiction over a defendant under its own law did not give rise to an issue estoppel that bound an Australian court. For an issue estoppel to arise from a foreign judgment, the foreign court must first be found to be ‘a court of competent jurisdiction’, which means that it has ‘international jurisdiction’ according to Australian private international law principles.135 5.42  It also appears that the doctrine of Anshun estoppel136 may be relied upon in relation to a foreign judgment. Such an estoppel operates to prevent an issue being raised 128. A privy is an entity that claims through or under a person in a successor relationship or a mutual relationship. Examples of a successor relationship would be testator and executor or company and liquidator, while examples of a mutual relationship would be joint contractors or beneficiaries; see Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1993) 36 FCR 406. 129. [1985] 1 WLR 490 at 499 (Lord Brandon). 130. Armacel Pty Ltd v Smurfit Stone Container Corp (2008) 248 ALR 573; [2008] FCA 592; Telesto Investments Ltd v UBS AG (2013) 94 ACSR 29; [2013] NSWSC 503; see also, in New Zealand, Americhip Inc v Dean [2015] 3 NZLR 498. 131. (2008) 248 ALR 573; [2008] FCA 592. 132. (2012) 262 FLR 119; [2012] NSWSC 44 at [133]–[136]. 133. (1990) 171 CLR 538. 134. [2017] QSC 223. 135. See 5.11–5.21. Query, however, whether such a requirement was satisfied in the case of Armacel Pty Ltd v Smurfit Stone Container Corp (2008) 248 ALR 573; [2008] FCA 592. 136. Port of Melbourne Authority v Anshun (1981) 147 CLR 589.

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5.44

in subsequent proceedings that could have been, but was not, ventilated in an earlier action between the same parties. In the context of a foreign judgment, however, the estoppel will only be available in later Australian proceedings if the equivalent doctrine exists under the law of the country that rendered the judgment.137

Registration of foreign judgments 5.43  There has long been legislation in Australia for the enforcement of foreign judgments by registration in a local court. This legislation has generally adopted the approach taken in the Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK), which provided that judgments made in countries proclaimed under the statute could be registered, and thereby enforced. However, under the statute of 1933 registration could be set aside on the judgment debtor proving that the foreign court lacked international jurisdiction, the judgment was obtained by fraud, the judgment debtor was denied natural justice, and so on. Until 1991, each of the Australian states and territories had legislation of this kind, providing for the enforcement of the foreign judgment by registration in its Supreme Court.138 The South Australian statute departed from the approach taken in the United Kingdom Act of 1933 in allowing the registration of judgments made in countries that were not proclaimed under the legislation, and in having more generous rules of international jurisdiction.139 In 1991, federal legislation was enacted in response to national obligations Australia assumed under the 1983 Closer Economic Relations Trade Agreement with New Zealand, and further, to ease the enforcement of New Zealand judgments in Australia.140 The Foreign Judgments Act 1991 (Cth) was nevertheless designed eventually to replace the state and territory statutes, and since 27 June 1993 it has only been possible to register judgments under the Foreign Judgments Act.141 5.44  The Foreign Judgments Act allows the registration of judgments from both superior and inferior courts of proclaimed places. The conditions of proclamation are that the foreign place will give substantial reciprocity of treatment to Australian judgments.142 It is no accident that most of the places that do reciprocate are Commonwealth jurisdictions, as the approach taken in the United Kingdom Act of 1933 was replicated throughout the Commonwealth and was partially designed to assist the freer circulation of judgments within the Commonwealth. The superior courts to which the Foreign Judgments Act applies, set out in Sch 1 to the Foreign Judgments Regulations (Cth), are set out in the table below:

137. PCH Offshore Pty Ltd v Dunn (No 2) (2010) 273 ALR 167; [2010] FCA 897 at [107]; Telesto Investments Ltd v UBS AG (2013) 94 ACSR 29; [2013] NSWSC 503 at [235]–[236]. 138. Foreign Judgments Act 1954 (ACT); Foreign Judgments Act 1973 (NSW); Foreign Judgments Act 1955 (NT); Reciprocal Enforcement of Judgments Act 1959 (Qld); Foreign Judgments Act 1971 (SA); Foreign Judgments Act 1963 (Tas); Foreign Judgments Act 1962 (Vic); Foreign Judgments Act 1963 (WA). 139. Malaysia-Singapore Airlines Ltd v Parker (1972) 3 SASR 300. 140. See now Trans-Tasman Proceedings Act 2010 (Cth) Pt 7. 141. Foreign Judgments Act 1991 (Cth) ss 18, 19(b). 142. Foreign Judgments Act 1991 (Cth) s 5(1), (3).

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Private International Law in Australia Foreign place

Superior courts

Alberta, Canada

Supreme Court of Canada, Court of Appeal, Court of Queen’s Bench

The Bahamas

Court of Appeal, Supreme Court

British Columbia, Canada

Supreme Court of Canada, Court of Appeal, Supreme Court

British Virgin Islands

Eastern Caribbean Supreme Court

Cayman Islands

Grand Court

Dominica

Eastern Caribbean Supreme Court, Court of Appeal, High Court of Justice

Falkland Islands

Court of Appeal, Supreme Court

Fiji

Supreme Court, Court of Appeal, High Court

France

Cour de Cassation, Cours d’Appel, Tribunaux de grand instance, Tribunaux de commerce, Cours d’assise, Tribunaux correctionnels

Germany

Bundesgerichtshof, Oberlandesgerichte Bayerische Oberste Landesgericht, Landgerichte

Gibraltar

Court of Appeal, Supreme Court

Grenada

Supreme Court (consisting of the Court of Appeal, High Court)

Hong Kong, People’s Republic of China

High Court (consisting of the Court of Final Appeal, Court of First Instance)

Israel

Supreme Court, District Courts, Moslem Religious Courts, Druze Religious Courts

Italy

Corte Suprema di Cassazione, Corte di Assise, Corte d’Appello, Tribunale

Japan

Supreme Court, High Courts, District Courts, Family Courts

Korea

Supreme Court, Appellate Courts, District Courts, Family Court, Patent Court, Administrative Court

Malawi

High Court, Supreme Court

Manitoba, Canada

Court of Queen’s Bench

Montserrat

Privy Council, Eastern Caribbean Court of Appeal, High Court

Papua New Guinea

Supreme Court of Justice, National Court of Justice

Poland

Supreme Court, Commercial Courts, Courts of Appeal, Provincial Courts

St Helena

Supreme Court 154

The Effect of Foreign and Interstate Judgments



Foreign place

5.45

Superior courts

St Kitts and Nevis

Privy Council, Eastern Caribbean Court of Appeal High Court (Saint Christopher Circuit), High Court (Nevis Circuit)

St Vincent and the Grenadines

Eastern Caribbean Supreme Court (consisting of the Court of Appeal, High Court)

Seychelles

Court of Appeal, Supreme Court

Singapore

Privy Council, Supreme Court (consisting of the Court of Appeal, High Court)

Solomon Islands

Court of Appeal, High Court

Sri Lanka

Supreme Court, Court of Appeal, High Court, District Court

Switzerland

Bundesgericht, Kantonale Obere Gerichte, Handelsgerichte

Taiwan, China

Supreme Court, High Courts, District Courts

Tonga

Court of Appeal, Supreme Court

Tuvalu

Court of Appeal, High Court

United Kingdom

Supreme Court of the United Kingdom, Senior Courts of England and Wales, Court of Judicature of Northern Ireland, Court of Session

Western Samoa

Court of Appeal, Supreme Court

5.45  The inferior courts to which the Foreign Judgments Act applies, set out in reg 5 of the Foreign Judgments Regulations (Cth), are set out in the table below:143 Foreign place

Inferior courts

Alberta, Canada

Provincial Court

British Columbia, Canada

Provincial Court

Manitoba, Canada

Provincial Court

New Zealand

District Court

Poland

District Court

Switzerland

Bezirksgerichte, Erstinstanzliche Gerichte, Arbeitsgerichte, Mietgerichte

United Kingdom

County Courts (England and Wales),143 County Courts (Northern Ireland), Sheriff Courts (Scotland)

143. The Family Court in England and Wales is not a County Court, and as it is not listed in the Foreign Judgments Regulations its judgments are not registrable under the Foreign Judgments Act 1991 (Cth): Pavitt v Pavitt [2018] QSC 77.

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5.46  The range of determinations that can be registered under the Foreign Judgments Act is broader than those that can be enforced at common law. The term ‘judgment’ is defined in the Act to include ‘a final or interlocutory judgment or order given or made by a court in civil proceedings’.144 Registration of the judgment will be refused if it is not final and conclusive according to the common law principles discussed above.145 Consequently, a judgment is still regarded as final and conclusive even though it is subject to an appeal.146 Further, a judgment given in default of appearance is generally considered final and conclusive even though it is easier to reopen than one given after a contested hearing.147 The Act also allows for registration of judgments made in criminal proceedings that provide compensation to an injured person, and arbitral awards.148 Further, there is provision for proclamations to be made allowing the registration of non-pecuniary judgments; for example, injunctions and orders for specific performance.149 To date, no proclamations have been made to this effect, with the result that, except for New Zealand judgments, only judgments for a sum of money can be registered. An order for seizure and sale of a defendant’s assets to satisfy a debt that exists independently of the judgment is not a judgment for a sum of money.150

Registration — conditions and effect 5.47  A judgment creditor is able to apply for registration of a judgment (to which the Foreign Judgments Act applies) in the Supreme Court of a state or territory. This application must be made within six years of the date the judgment was made or, if it had been the subject of an appeal, the last date in which a judgment was made in the proceedings in the foreign territory.151 There are alternative procedures where the judgment was made in proceedings to which the Trans-Tasman Proceedings Act 2010 (Cth) applies.152 The judgment must be registered by the Supreme Court so long as:153 • it is a judgment to which the Act applies; • it is not wholly satisfied; and • it is enforceable in the place where it was made. It follows from these conditions that, if the foreign judgment has been partially satisfied, it is only to be registered for the balance of money remaining payable to the judgment creditor on the date of application.154

144. Foreign Judgments Act 1991 (Cth) s 3(1). 145. Foreign Judgments Act 1991 (Cth) s 5(4). See 5.22; Bank Polska Kasa Opieki Spolka Akcyjna v Zbigniew Opara (2010) 238 FLR 309; [2010] QSC 093 at [63]. 146. Foreign Judgments Act 1991 (Cth) s 5(5). 147. Barclay’s Bank Ltd v Piacun [1984] 2 Qd R 476. 148. Foreign Judgments Act 1991 (Cth) s 3(1). 149. Foreign Judgments Act 1991 (Cth) s 5(6), (7). 150. Bank Polska Kasa Opieki Spolka Akcyjna v Zbigniew Opara (2010) 238 FLR 309; [2010] QSC 093 at [51]–[58]. 151. Foreign Judgments Act 1991 (Cth) s 6(1). 152. See 5.77. 153. Foreign Judgments Act 1991 (Cth) s 6(1), (3), (6). 154. Foreign Judgments Act 1991 (Cth) s 6(12).

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The Effect of Foreign and Interstate Judgments

5.49

5.48  The advantage of enforcing a foreign judgment by registration rather than by proceedings at common law is that there is no need for the registering Supreme Court to have jurisdiction over the judgment debtor. In Hunt v BP Exploration Co (Libya) Ltd,155 the High Court of Justice in England rendered judgments in favour of BP Exploration and against Nelson Hunt in two sums: one over US$15 million, and the other close to UK£9 million. Hunt had large property interests in Queensland, and BP Exploration therefore applied to register the judgments in that state’s Supreme Court under the Reciprocal Enforcement of Judgments Act 1959 (Qld) (which had similar procedures to the Foreign Judgments Act). Matthews J registered the judgment, and also issued injunctions restraining the removal of assets from Queensland. However, Hunt applied for registration to be set aside, on the ground that he had at no stage been present in the state or submitted to the jurisdiction of the Supreme Court. This question was raised on appeal to the High Court, which held that there was no need for the Supreme Court to have personal jurisdiction over the judgment debtor for the judgment to be registered. Stephen, Mason and Wilson JJ pointed out ‘that at common law a judgment creditor who sought to enforce a foreign judgment in Queensland by suing on the judgment in the Supreme Court could only do so if the judgment debtor was answerable or amenable to the jurisdiction of that Court’.156 The Reciprocal Enforcement of Judgments Act dispensed with this requirement, it being held that ‘[t]he application for registration does not involve an action in personam requiring service of the Supreme Court’s process in or outside the jurisdiction’.157 Barwick CJ, Murphy J and Aickin J agreed with this approach. 5.49  So, the judgment debtor may have no connection with the forum in which the judgment is validly registered.158 However, in all Australian states and territories, the rules of the Supreme Courts require notice to be given to the judgment debtor that registration has been effected.159 These rules also allow service of the notice of registration on a judgment debtor who is overseas, and in all cases leave to serve this notice is required.160 The Federal Court has similar rules.161 This prior leave requirement makes it in practice more difficult to enforce a foreign judgment under the Foreign Judgments Act than under the common law rules in the states and territories where the new harmonised service rules have been adopted. As noted at 2.89 and 5.8 above, prior leave is no longer required in those jurisdictions to

(1980) 144 CLR 565. At 572. At 573. See also English’s Coasting and Shipping Co Ltd v British Finance Co Ltd (1886) 14 R 220 at 225–6; Hunt v BP Exploration Co (Libya) Ltd [1981] 1 NZLR 209. 159. Court Procedures Rules 2006 (ACT) r 3479; Uniform Civil Procedure Rules 2005 (NSW) r 53.6; Supreme Court Rules (NT) 2012 r 94.07; Uniform Civil Procedure Rules 1999 (Qld) r 947J; Supreme Court Civil Rules 2006 (SA) r 346(7); Supreme Court Rules 2000 (Tas) r 721; Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) r 11.07; Rules of the Supreme Court 1971 (WA) O 44A r 8(1). 160. Court Procedures Rules 2006 (ACT) r 6508; Uniform Civil Procedure Rules 2005 (NSW) r 11.8AB; Supreme Court Rules (NT) 2012 r 7.03; Uniform Civil Procedure Rules 1999 (Qld) r 127(b); Supreme Court Civil Rules 2006 (SA) r 40G; Supreme Court Rules 2000 (Tas) r 147G; Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 7.08; Rules of the Supreme Court 1971 (WA) O 44 r 8(1), O 10 r 7. 161. Federal Court Rules r 41.65 (notice requirement); r 10.44 (service). 155. 156. 157. 158.

157

5.49

Private International Law in Australia

serve process outside Australia to enforce a foreign judgment under common law principles. This anomaly requires addressing. 5.50  On registration in the Supreme Court, a foreign judgment has the same force and effect as a judgment of that court and is deemed to be made on the date of registration. The foreign judgment is therefore naturalised by registration, and can be enforced by all the normal processes of execution available in that court.162 A judgment registered in a Supreme Court under the Foreign Judgments Act can then be registered in the Supreme Court of another state or territory under the provisions of the Service and Execution of Process Act 1992 (Cth).163 5.51  If the defendant/judgment debtor B has appealed against the decision of the court in the foreign place, then registration of the foreign judgment can be stayed until the appeal is determined or until some other date specified by the Supreme Court.164 The Supreme Court must, however, require B to bring the appeal in the foreign place within a specified time and to pursue it expeditiously.165 It can attach other conditions to the stay.166 5.52  It is not possible for a defendant to file a cross-claim in proceedings to enforce a foreign judgment under the Act, because the rights and liabilities of the parties have been determined by the judgment and the only proceedings outstanding are for enforcement of that judgment.167 5.53  If the judgment is one to which the Foreign Judgments Act applies, it is only enforceable by use of the registration procedures of the Act. It does not seem possible to attempt enforcement of the judgment by proceedings at common law.168

Setting aside registration 5.54  Under the Foreign Judgments Act, a registered judgment is effectively resisted and made unenforceable by having the registration of the judgment set aside. A stay ordered under s 8 only suspends processes of execution on the judgment.169 Two procedures for setting aside registration are available. First, the defendant/judgment debtor B can apply to the Supreme Court in which the foreign judgment was registered to have the registration set aside. Second, if the judgment made in the foreign place was registered in the Supreme Court of one state — for example, Victoria — and subsequently, under the provisions of the Service and Execution of Process Act, registered in a second state — for example, South Australia — then B is able to apply to the South Australian court to have registration set 162. Foreign Judgments Act 1991 (Cth) s 6(7). 163. Foreign Judgments Act 1991 (Cth) s 6(8). 164. Foreign Judgments Act 1991 (Cth) s 8(1); see, for example, Hunt v BP Exploration Co (Libya) Ltd [1980] 1 NZLR 104; Dawn Jade Ltd v Himanshu Girdhar Dua [2014] NSWSC 1085 at [45], where the defendant was required to have a reasonably arguable case on the appeal and to satisfy the balance of convenience for a stay to be granted. 165. Foreign Judgments Act 1991 (Cth) s 8(2)–(3). 166. Foreign Judgments Act 1991 (Cth) s 8(4). 167. Fulcrum Securities Ltd v Lake [2009] NSWSC 1202. 168. Foreign Judgments Act 1991 (Cth) s 10(1). 169. See 5.51.

158

The Effect of Foreign and Interstate Judgments



5.56

aside. Even though there is no opportunity under the Service and Execution of Process Act to have registration of a judgment made in Victoria to be set aside in South Australia, it seems that, if that judgment was made in a foreign country and merely registered in Victoria, B can invoke the procedures of the Foreign Judgments Act in South Australia to have registration of the judgment set aside there. 170

5.55  The grounds on which registration of a judgment can be set aside are listed in s 7 of the Foreign Judgments Act, and largely parallel the grounds on which enforcement of a judgment at common law can be defended. If one of these grounds is proved by the defendant/judgment debtor then, with one exception, the Supreme Court must set registration aside. The one exception is that the court has a discretion to set aside (or not to set aside) a judgment made in a foreign place where the matter was also adjudged in another foreign place.171 Note, however, that there is no general discretion to decline to set aside registration of a judgment where a ground for impeachment has been established.172 The grounds for setting aside are discussed below. Further, there are a number of grounds on which the Supreme Court must set registration aside that restate the conditions on which registration is properly made. Thus, registration must be set aside if the judgment: is one to which the Foreign Judgments Act does not apply; was registered for a sum greater than was payable to the judgment creditor at the time of registration; or was otherwise registered in breach of the Act.173 Registration must also be set aside if the judgment has been wholly satisfied,174 or if the foreign judgment is no longer enforceable in the foreign country: that is, it has been reversed on appeal or set aside or discharged by the relevant foreign courts.175

International jurisdiction 5.56  The registration of a judgment made by a foreign court must be set aside if the foreign court was not exercising a recognised international jurisdiction.176 Here, the international jurisdiction that is recognised is itself defined in the Foreign Judgments Act. However, the conditions on which that jurisdiction is recognised depend on the nature of the proceedings that led to the rendering of the foreign judgment. So, there are different rules of international jurisdiction for proceedings in personam, proceedings in rem or relating to immovable property, and proceedings that cannot be classified as either. In any of these cases, international jurisdiction will not be recognised in any of the following cases: • if the foreign proceedings related to immovable property that was not located in the foreign place;177

170. 171. 172. 173. 174. 175. 176. 177.

Foreign Judgments Act 1991 (Cth) s 7(1). See 5.68. Bank Polska Kasa Opieki Spolka Akcyjna v Zbigniew Opara (2010) 238 FLR 309; [2010] QSC 093 at [48]. Foreign Judgments Act 1991 (Cth) s 7(2)(a)(i)–(iii). Foreign Judgments Act 1991 (Cth) s 7(2)(a)(x). Foreign Judgments Act 1991 (Cth) s 7(2)(a)(vii), (ix). Foreign Judgments Act 1991 (Cth) s 7(1)(a)(iv). Foreign Judgments Act 1991 (Cth) s 7(4)(a); Marks v Australia and New Zealand Banking Group Ltd [2014] QCA 102.

159

5.56

Private International Law in Australia

• if the proceedings were brought in the foreign court in breach of an exclusive jurisdiction clause (and the defendant/judgment debtor B had not otherwise submitted to its jurisdiction);178 or • if B ‘was a person who under the rules of public international law was entitled to immunity from the jurisdiction of the courts’ of the foreign place and B did not submit to jurisdiction.179 (The latter point is assumed to mean that B had foreign state or diplomatic immunity.)

Proceedings in personam 5.57  An ‘action in personam’ is defined negatively in the Foreign Judgments Act as excluding, in effect, proceedings relating to marriage, annulment, separation, parenting orders, the administration of deceased estates, insolvency and mental health.180 It should also, by implication, exclude proceedings in rem and proceedings relating to immovable property. The foreign court is recognised as having exercised international jurisdiction in proceedings in personam where, at the time the proceedings were commenced, the defendant/judgment debtor B was a natural person who was ‘resident’ in the relevant foreign place.181 If the common law understanding of ‘residence’ is assumed to apply here, it may mean that B was merely present in the foreign place at the time proceedings were commenced.182 If B is a corporation, international jurisdiction is established if B had its principal place of business in the foreign place.183 In either case, it is also sufficient that the proceedings relate to a transaction that B effected through an office or place of business that B had in the foreign place.184 Further, the international jurisdiction of the foreign court is established if B ‘voluntarily submitted’ to its jurisdiction.185 This seems to adopt the common law.186 It expressly includes a submission by agreement.187 It also expressly includes submission by some forms of conduct: that is, when B was the plaintiff in the foreign proceedings or, as defendant, counter-claimed in the foreign proceedings.188 It would be assumed that submission by other forms of conduct would also be sufficient to establish international jurisdiction.

178. Foreign Judgments Act 1991 (Cth) s 7(4)(b). 179. Foreign Judgments Act 1991 (Cth) s 7(4)(c). 180. Foreign Judgments Act 1991 (Cth) s 3(1). Proceedings relating to the maintenance of children are, however, within the scope of the Act. See De Santis v Russo (2001) 27 Fam LR 414; [2001] QSC 065 at [10]. 181. Foreign Judgments Act 1991 (Cth) s 7(3)(a)(iv). 182. Emanuel v Symon [1908] 1 KB 302 at 309. 183. Foreign Judgments Act 1991 (Cth) s 7(3)(a)(iv). 184. Foreign Judgments Act 1991 (Cth) s 7(3)(a)(v). 185. Foreign Judgments Act 1991 (Cth) s 7(3)(a)(i). 186. See 5.14; Quarter Enterprises Pty Ltd v Allardyce Lumber Co Ltd (2014) 85 NSWLR 404; [2014] NSWCA 3 at [52]; Marks v Australia and New Zealand Banking Group Ltd [2014] QCA 102 at [38]; Zeta-PDM Ltd v Petro Technology Australia Pty Ltd [2011] WASC 338. 187. Foreign Judgments Act 1991 (Cth) s 7(3)(a)(iii); Marks v Australia and New Zealand Banking Group Ltd [2014] QCA 102 at [34]–[36]; Privatbrauerei Erdinger Weissrau Werner Brombach GmbH v World Brands Australia Pty Ltd [2016] WASC 9. 188. Foreign Judgments Act 1991 (Cth) s 7(3)(a)(ii).

160

The Effect of Foreign and Interstate Judgments



5.58

5.58  The decision in De Santis v Russo addressed the issue of voluntary submission to the jurisdiction of a foreign court under the Foreign Judgments Act. To some extent, the decision also takes into account the foreign court’s assessment of the quality of the defendant’s involvement in the proceedings in deciding whether, by Australian law, the defendant has participated in the foreign proceedings so as to have submitted to the foreign court’s jurisdiction. In this case, De Santis appealed from an order that dismissed her application under s 7 of the Act to set aside a registered Italian judgment. The Italian judgment had awarded Russo 20 million lire, together with another 5.5 million lire for costs in a dispute heard by the Corte di Appello di Roma in 1994. De Santis had attempted to have the court in Rome consider her informal submissions, but the Roman court ignored this attempt and ruled against her by default. In an application to set aside registration of the Italian judgment in Queensland, the question for the state’s Court of Appeal was whether De Santis, by attempting to contest the matter and participate in the dispute, had voluntarily submitted to the jurisdiction of the Roman court. McPherson JA considered that the rules of jurisdiction that applied had to be those of Australia and not of Italy.190 It appeared that De Santis had ‘done nothing that resembled what was required’ in order to appear in court.191 The question then became whether, in the terms of the Foreign Judgments Act, De Santis had ‘participated in the proceedings of the court only to the extent necessary for the purpose of contesting the application’.192 McPherson JA found that De Santis had attempted to address the merits of the claim, but that these attempts were ignored. On the basis of Canadian and New Zealand authority,193 McPherson JA held that De Santis had not submitted to the Roman court’s jurisdiction:194 189

The court rejected the informal method of seeking to appear before it and found her guilty of default. The court did not … consider the informally presented submissions that were made by the defendant. In my view, the unsuccessful attempt by Mrs De Santis did not amount to participation in the proceedings before the Court of Appeals in Rome or constitute a voluntary submission on her part to the jurisdiction of that Court.

The overriding consideration in this case appeared to be not that De Santis had tried to participate and defend the merits of her claim, which may suggest voluntary submission, but that the foreign court had taken no notice of her attempts or informal submissions. On that ground, she could not be considered to have participated in the foreign proceedings, and registration was set aside. Such a conclusion seems highly dubious in light of the decisions involving enforcement at common law discussed earlier195 which suggest that any steps taken by the defendant in the foreign proceedings that go beyond a protest to jurisdiction would be considered a submission. The attitude taken by the foreign court to such conduct of the defendant would seem an irrelevant consideration.

[2002] 2 Qd R 230; [2001] QCA 457. At 237. At 238. At 238. Re Overseas Food Importers & Distributors Ltd and Brandt (1981) 126 DLR (3d) 422; Von Wyl v Engeler [1998] 3 NZLR 416. 194. De Santis v Russo [2002] 2 Qd R 230 at 242; [2001] QCA 457. 195. See, for example, Wong v Jani-King Franchising Inc [2014] QCA 76. 189. 190. 191. 192. 193.

161

5.59

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5.59  Further, and relevantly, s 7(5) of the Foreign Judgments Act spells out what will not constitute voluntary submission and does so in precisely the same terms as s 11 of the Act dealing with enforcement of a foreign judgment at common law.196 Thus, voluntary submission and, therefore, international jurisdiction are not established where B’s appearance or participation in the proceedings in the foreign place was for:197 (c) protecting, or obtaining the release of: (i) property seized, or threatened with seizure, in the proceedings; or (ii) property subject to an order restraining its disposition or disposal; (d) contesting the jurisdiction of the court; (e) inviting the court in its discretion not to exercise its jurisdiction in the proceedings.

Proceedings in rem 5.60  The Foreign Judgments Act does not define an ‘action in rem’. Under the general law, it includes a maritime proceeding brought against a vessel and one relating to the title to, or possession of, any property — movable or immovable. The international jurisdiction of a foreign court is established under the Foreign Judgments Act in proceedings in rem or relating to immovable property if the property was in the relevant foreign place at the time of the proceedings.198

Unclassified proceedings 5.61  If the foreign judgment emerged from proceedings that could not be classified as in personam or in rem, the Foreign Judgments Act provides that the international jurisdiction of the foreign court is recognised if it ‘is recognised by the law in force in the state or territory in which the judgment is registered’.199 Nygh suggests that this includes the proceedings expressly excluded from the definition of an action in personam in the Foreign Judgments Act; namely, proceedings relating to marriage, annulment, separation, parenting orders, the administration of deceased estates, insolvency and mental health.200 However, in the case of family law proceedings, decrees will not be registrable under the Foreign Judgments Act.201 It is also uncertain to what extent this will allow the registration of orders relating to administration or insolvency, for which other procedures are available. The provision simply seems to enable a residue of unclassified orders from recognised foreign courts to retain registration, so long as the common law rules of international jurisdiction are satisfied.

196. 197. 198. 199. 200. 201.

See 5.16. Foreign Judgments Act 1991 (Cth) s 7(5). Foreign Judgments Act 1991 (Cth) s 7(3)(b). Foreign Judgments Act 1991 (Cth) s 7(3)(c). Davies, Bell and Brereton, above n 92, at [41.24]. Maples v Maples [1988] Fam 14.

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Identical parties 5.62  The registration of a foreign judgment must be set aside if the rights under that judgment are not vested in the applicant for registration. The applicant must therefore be the judgment creditor of the judgment made in the foreign place.202

Fraud 5.63  The registration of a foreign judgment must be set aside if that judgment was obtained by fraud.203 This parallels the defence of fraud available at common law.204

Natural justice 5.64  The registration of a foreign judgment must be set aside if the defendant/judgment debtor B did not receive notice of the foreign proceedings in sufficient time to enable B to defend the proceedings. There is also a requirement that B did not appear in the proceedings.205 In considering this ground for having registration set aside, it is irrelevant that notice was given in accordance with the law of the relevant foreign place. 5.65  In Barclays Bank Ltd v Piacun,206 the judgment debtor, Anthony Piacun, left England in 1980. The bank brought proceedings to enforce a guarantee against him in England in 1981, and judgment in the sum of £276,000 was entered in default of appearance in 1982. The bank sought registration of the judgment in Queensland under the Reciprocal Enforcement of Judgments Act 1959 (Qld), as Mr Piacun had made his home in that state. The Supreme Court registered the judgment and refused to set it aside. On appeal to the Full Court of the Supreme Court, it was accepted that, even though made in default of appearance, the English judgment was final and conclusive. It was also accepted that the English court conceivably exercised a proper international jurisdiction on the ground that Piacun agreed to submit to its jurisdiction or that the guarantee had been entered through an office or place of business in England. However, the Full Court did not consider that Piacun had received notice of ‘proceedings in sufficient time to enable him to defend the proceedings’. Connolly J held that actual notice was required.207 In the English proceedings, substituted service had been ordered, and the first notice that Piacun received of anything relating to the proceedings was the notice that the English judgment had been registered in Queensland. Neither Connolly J nor Macrossan J was prepared to accept that notice of registration was sufficient.208 The registration of the English judgment was set aside. 5.66  In recent Australian decisions, courts have continued to demand that the defendant receive actual notice of the foreign proceedings or else registration of the judgment will be 202. Foreign Judgments Act 1991 (Cth) s 7(2)(a)(vii). 203. Foreign Judgments Act 1991 (Cth) s 7(2)(a)(vi). 204. Ramanathan v Naidu [2007] NSWSC 693; Quarter Enterprises Pty Ltd v Allardyce Lumber Co Ltd (2014) 85 NSWLR 404; [2014] NSWCA 3. 205. Foreign Judgments Act 1991 (Cth) s 7(2)(a)(v). 206. [1984] 2 Qd R 476. 207. At 478. 208. At 482.

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set aside. A plaintiff ’s informing the defendant that such proceedings exist or are likely to exist,209 or an awareness or expectation on the part of the defendant that such proceedings may be commenced, is insufficient.210

Public policy 5.67  The registration of a foreign judgment must be set aside if enforcement of the judgment would be contrary to public policy.211 Again, with one possible modification, this ground parallels the defence of public policy available for proceedings to enforce a foreign judgment brought at common law.212 The possible difference is that, as this is enforcing public policy under a federal statute (the Foreign Judgments Act), it is probably the public policy of Australia as a whole that must be considered. Enforcement at common law is more likely to implicate the public policy of the state or territory in question, which might then allow the assessment of policy to be made by reference to fundamental principles of the state’s or territory’s statute law. The enforcement of a foreign taxation judgment is generally considered to be contrary to public policy.213 However, the Act allows the registration of judgments made in some taxation matters in Papua New Guinea. These are limited to judgments for the recovery of Papua New Guinea income tax, and the Act expressly excludes additional and other tax payable in Papua New Guinea.214 It would therefore seem that, by necessary implication, this public policy ground should not be available to a respondent who is a judgment debtor under a judgment for Papua New Guinea income tax.

Incompatible judgments 5.68  The registration of a foreign judgment may be set aside by the registering Supreme Court if the matter in dispute in the foreign proceedings had, before it was adjudged in the foreign place, ‘been the subject of a final and conclusive judgment by a court having jurisdiction in the matter’.215 This is the one case in which registration need not be set aside — the court merely has a discretion to do so. Though uncommon, it is most likely to arise where the same matter was earlier adjudged in a second foreign place. If, for example, judgment in parallel proceedings were made in both Hentzau (first) and Ruritania (second), the Australian court has a discretion to maintain registration of the judgment made in Ruritania because, even though a separate judgment was rendered in Hentzau, the courts in both Ruritania and Hentzau may have determined the matter in a similar way. However, where the judgments made in Ruritania and Hentzau are incompatible, the judgment made in Hentzau must have a strong claim to priority and it should (it is submitted) be an exceptional case in which the court does not set aside registration of the judgment made

Maschmann v Wenzel [2007] NSWSC 850. Bank Polska Kasa Opieki Spolka Akcyjna v Zbigniew Opara (2010) 238 FLR 309; [2010] QSC 093 at [39]. Foreign Judgments Act 1991 (Cth) s 7(2)(a)(xi). Jenton Overseas Investment Pte Ltd v Townsing (2008) 221 FLR 398; [2008] VSC 470; Bank Polska Kasa Opieki Spolka Akcyjna v Zbigniew Opara (2010) 238 FLR 309; [2010] QSC 093 at [64]–[66]. 213. Government of India v Taylor [1955] AC 491. 214. Foreign Judgments Act 1991 (Cth) s 3(1). 215. Foreign Judgments Act 1991 (Cth) s 7(2)(b). 209. 210. 211. 212.

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in Ruritania. The Privy Council’s decision in Showlag v Mansour has been considered in this connection.217 For present purposes, it is important that Showlag v Mansour arose under the Jersey legislation that is the equivalent of the Foreign Judgments Act, and which also gives the courts of Jersey a discretion to set aside the registration of a foreign judgment when the matter had been the subject of a judgment of another court having jurisdiction in the matter. Two foreign judgments that were otherwise independently registrable in Jersey were incompatible, so the Privy Council applied a rule of chronological priority. The first judgment made had a superior claim to recognition in the forum. 216

Registration of interstate judgments Full faith and credit 5.69  Although the effect to be given in any Australian state or territory to judgments made in another state or territory is codified in the Service and Execution of Process Act 1992 (Cth), the underlying status of an interstate judgment to which the Act gives effect is directed by constitutional considerations. Section 118 of the Commonwealth Constitution — the ‘full faith and credit’ clause — provides: Full faith and credit shall be given, throughout the Commonwealth, to the laws, the public Acts and records, and the judicial proceedings of every State.

A more extended analysis of s 118 is given in Chapter 11, where its implications for choice of law, which are more debatable, are considered at length.218 Section 118 of the Constitution used to be supplemented by s 18 of the State and Territorial Laws and Records Recognition Act 1901 (Cth), which provided: All public acts records and judicial proceedings of any state or territory, if proved or authenticated as required by this Act, shall have such faith and credit given to them in every Court and public office as they have by law or usage in the Courts and public offices of the state or territory from whence they are taken.

Section 18 has been repealed219 and replaced by s 185 of the Evidence Act 1995 (Cth). In the older case law s 18 was the provision to which the courts paid the most attention when discussing full faith and credit, but it now seems the position is the same regardless of whether s 118 of the Constitution or s 185 of the Evidence Act is relied upon: that is, an order or judgment of a state or territory court will be accorded the same status in another Australian court as it would have in the court of rendition.220 Such a result is said to be

216. 217. 218. 219. 220.

[1995] 1 AC 431. See 5.37. See 11.3–11.20. Evidence (Transitional Provisions and Consequential Amendments) Act 1995 (Cth) s 3. Marks v National and General Insurance Co Ltd [1993] ACTSC 84 (20 September 1993) at [14]; G v G (1985) 10 Fam LR 718 at 718–19; Rowe v Silverstein [1996] 1 VR 509; and especially Re DEF and the Protected Estates Act 1983 (2005) 192 FLR 92; [2005] NSWSC 534 at [48]–[58], [76].

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consistent with the ‘integrated system for the administration of the law in Australia’.221 The strength of this recognition is apparent from the early decision of Harris v Harris.222 5.70  The interstate judgment that the Victorian courts were asked to recognise in Harris v Harris was a decree of divorce made by the Supreme Court of New South Wales in 1937. That court could only grant a divorce if the petitioner had been domiciled in New South Wales. The husband of that dissolved marriage subsequently remarried, but later petitioned in the Supreme Court of Victoria for a divorce from the second wife on the ground of adultery. However, that divorce could only be granted if the second marriage was valid — and that question depended on the validity of the 1937 divorce. Fullagar J considered that the petitioner had been domiciled in Victoria since birth in 1906. That meant that the Supreme Court of New South Wales would not have had jurisdiction under its own rules to grant the divorce in 1937. Nor at common law would the divorce have normally been entitled to recognition, as it was not made by the court in the place where the parties were domiciled.223 Nevertheless, Fullagar J held that s 18 of the State and Territorial Laws and Recognition Act precluded the Victorian court from considering the jurisdiction of the New South Wales court to grant the 1937 divorce. As in New South Wales the decree was considered conclusive, it had to be treated as equally conclusive in Victoria and other parts of Australia. Ultimately, therefore, the second marriage was valid and could be dissolved. 5.71  In probate and administration cases, courts have held that s 18 of the State and Territorial Laws and Records Recognition Act and s 118 of the Constitution do not require the recognition of an interstate grant when recognition would not be accorded to the grant at common law.224 In Re an Alleged Incapable Person FCC and the Protected Estates Act 1983225 the Supreme Court of Queensland made orders under the Protected Estates Act 1983 (NSW), in the purported exercise of jurisdiction under the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW). However, the plaintiff in the Queensland proceedings had not initiated a claim under the Protected Estates Act, and had merely sought damages at common law for personal injuries. Consequently, when recognition of the orders was sought in the Supreme Court of New South Wales, Powell J held them to be a nullity and would not accord full faith and credit to them. This was despite the fact that, as Powell J said, ‘in the normal course, an order of a superior court of record of general jurisdiction cannot be treated as void, or non-existent, and, even if made beyond power, that order stands’ and would be recognised under the full faith and credit clause.226 Significantly, however, in the later decision of Re DEF and the Protected Estates Act 1983,227 which concerned very similar facts to Re FCC, Campbell J of the Supreme Court of New South Wales declined to follow the earlier decision. Campbell J felt that regardless of the procedural deficiencies in the order made in the Supreme Court of Queensland in the FCC case, it was still an order of 221. 222. 223. 224. 225. 226. 227.

Re DEF and the Protected Estates Act 1983 (2005) 192 FLR 92; [2005] NSWSC 534 at [76]. [1947] VLR 44. At 48; see 14.27. In the Will of Lambe [1972] 2 NSWLR 273; Re Butler [1969] QWN 48. (1990) 19 NSWLR 541. At 547. (2005) 192 FLR 92; [2005] NSWCA 534.

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a superior court which must be accorded full faith and credit in all Australian courts. The strong policy of interstate recognition from Harris v Harris has been reasserted.

Registration procedures 5.72  Part 6 of the Service and Execution of Process Act 1992 (Cth) sets out the mandatory procedures for the enforcement of a judgment made in another state or territory of Australia. This applies to any judgment made in any court in Australia. So, in addition to a judgment for a sum of money, Part 6 allows the registration of orders in specie, such as a decree for an injunction or specific performance.228 It also includes a judgment registered in another state or territory’s Supreme Court under the Foreign Judgments Act.229 The judgment may originate in any superior or inferior court; the term ‘court’ is defined to mean ‘a court of a state [or territory] and includes an authority exercising the powers of such a court’.230 5.73  To enforce in one state — ‘the forum’ — a judgment made in another state — ‘the rendering state’ — a copy of the judgment must be lodged with a court of similar jurisdiction in the forum.231 The ‘appropriate court’ in which to register the judgment is, if the court in the rendering state was the Supreme Court, the Supreme Court of the forum.232 If the judgment was made in an inferior court in the rendering state, the appropriate court is the court in the forum ‘in or by which relief as given by the judgment could have been given’. If more than one court in the forum qualifies as appropriate in these terms, registration should occur in the forum court of most limited jurisdiction.233 Where there is no appropriate court, registration of the judgment should take place in the forum’s Supreme Court.234 5.74  The only precondition to registration in the forum is that the judgment made in the rendering state must be enforceable in the rendering state.235 If it is, then the forum court must register the judgment.236 Once registration occurs, the judgment has the same force and effect as if it had been made by the registering court in the forum.237 The effect of this procedure is that the judgment is accorded the most complete recognition possible. Its enforcement anywhere in Australia is determined solely by its ability to be enforced in the state or territory where it was first rendered. 5.75  There are no defences to registration of a judgment made in another state or territory under the Service and Execution of Process Act, and once the judgment is registered there are no grounds on which registration can be set aside. Further, the Act expressly provides that enforcement cannot be impeded by any defence available under the common law

228. 229. 230. 231. 232. 233. 234. 235. 236. 237.

Service and Execution of Process Act 1992 (Cth) s 3(1). Service and Execution of Process Act 1992 (Cth) s 3(1). Service and Execution of Process Act 1992 (Cth) s 3(1). Service and Execution of Process Act 1992 (Cth) s 105(1). Service and Execution of Process Act 1992 (Cth) s 105(6). Service and Execution of Process Act 1992 (Cth) s 105(6). Service and Execution of Process Act 1992 (Cth) s 105(6). Service and Execution of Process Act 1992 (Cth) s 105(5). Service and Execution of Process Act 1992 (Cth) s 105(1). Service and Execution of Process Act 1992 (Cth) s 105(2).

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rules of private international law.238 If the defendant/judgment debtor B wishes to resist enforcement in any state that has registered the judgment, the only course available to B is to seek a stay of enforcement in the forum. The stay is only available to enable B to reargue the case in the rendering state where the judgment was first made.239 The scheme therefore effectively compels B to raise all questions in the original proceedings, because there is no opportunity to raise other issues at the point of enforcement in another state or territory.

Registration of New Zealand judgments 5.76  One of the present authors argued240 that the trans-Tasman market area would be better served if New Zealand were incorporated into the existing scheme for jurisdiction and judgments that is currently in place for the Australian states and territories. For matters internal to the trans-Tasman market area, the jurisdiction of an Australian or New Zealand court would be determined purely by reference to common law principles of forum conveniens, the resulting judgment would be enforceable anywhere in Australia or New Zealand simply by registration in the relevant state, territory or New Zealand court, there would be no defences to registration in the relevant Australian or New Zealand forum, and the full range of judicial orders (including interim orders and orders in specie) would become registrable. 5.77  Many of these proposals were adopted in the Trans-Tasman Proceedings Act 2010 (Cth), with Pt 7 of the Act providing that final and conclusive money and non-money judgments from New Zealand may now be registered in an Australian court. ‘Final and conclusive’ is to be interpreted in accordance with the common law principles referred to above at 5.22.241 So, for example, an ex parte freezing order that is expressed to operate for a limited period of time or until further order was held not to be a final and conclusive judgment.242 The following judgments may also be registered: a judgment given in criminal proceedings where a person is required to pay an injured person a monetary sum by way of compensation, damages or reparation; a judgment involving a regulatory action criminal fine; a judgment in New Zealand market proceedings (which need not be final and conclusive but may be an interlocutory order); and a judgment registered in a New Zealand court under the Reciprocal Enforcement of Judgments Act 1934 (NZ).243 Some judgments remain excluded from registration under the Trans-Tasman Proceedings Act, including orders made in relation to dissolution of a marriage; orders made to enforce an obligation to maintain a spouse or a de facto partner; orders made to enforce a child support obligation; orders made under legislation dealing with the proceeds of crime; orders relating to the granting of probate or letters of administration of the estate of a deceased person; orders

238. Service and Execution of Process Act 1992 (Cth) s 109; R v White and Noonan; Ex parte TA Field Pty Ltd (1975) 133 CLR 113 at 117. 239. Service and Execution of Process Act 1992 (Cth) s 106. 240. Mortensen, above n 7. 241. LFDB v SM [2015] FCA 725 at [94]. 242. At [95]–[100]. 243. Trans-Tasman Proceedings Act 2010 (Cth) s 66(1).

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for guardianship; or orders relating to the care, control or welfare of a child. There are only three grounds for setting aside registration of a New Zealand judgment: that (i) the judgment was contrary to Australian public policy; (ii) it was registered in contravention of the Trans-Tasman Proceedings Act; or (iii) the subject matter of the judgment was immovable property or was an in rem judgment in respect of movable property and neither such property was situated in New Zealand.245 In relation to the public policy defence, the narrow interpretation from the common law noted at 5.34 above applies.246 Consequently, there is no breach of public policy where a New Zealand court’s approach to a problem is not one that would be adopted by an Australian court. A mere difference in laws is insufficient. Finally, an Australian court cannot refuse to enforce a New Zealand judgment on the ground that it would involve enforcement of a New Zealand public law; involves an amount payable in respect of New Zealand tax; or is a civil regulatory penalty or regulatory regime criminal fine.247 244

244. 245. 246. 247.

Trans-Tasman Proceedings Act 2010 (Cth) s 66(2). Trans-Tasman Proceedings Act 2010 (Cth) s 72(1). LFDB v SM [2017] FCAFC 178. Trans-Tasman Proceedings Act 2010 (Cth) s 79(2).

169

Chapter 6 International Arbitration Introduction 6.1  In the context of private international law, the three main issues in international commercial arbitration are: enforcement of international arbitration agreements; applicable law; and enforcement of arbitral awards. Until 2010, international arbitration in Australia was regulated by two main statutory schemes: the International Arbitration Act 1974 (Cth) and uniform state legislation; for example, the Commercial Arbitration Act  1984 (Vic). The effect of amendments to the International Arbitration Act and the new uniform state legislation1 is that the Act now exclusively regulates international commercial arbitration in Australia.2

Enforcement of international arbitration agreements 6.2  The International Arbitration Act was enacted in 1974, initially to give effect to the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). The convention had 159 state parties as of May 20183 and has effectively become a universal, global law. The convention was attached to the International Arbitration Act and enacted in two important provisions, the key provision for arbitration agreements being s 7. This section provides, in effect, for the mandatory stay of court proceedings brought in breach of an arbitration clause or agreement where the place of arbitration is a member state of the convention (other than Australia) or a party to the arbitration agreement is incorporated in, or has its principal place of business in, such a country.4 The large number of countries that are party to the New York Convention has meant that, in practice, these conditions have been readily complied with. A key element in s 7 is that the stay remedy is mandatory: once the requirements of the section are satisfied, a party cannot rely on arguments of convenience or discretion to resist the grant of such

1. 2.

3. 4.

See now, for example, Commercial Arbitration Act 2011 (Vic). For a fuller discussion of the 2010 amendments to the International Arbitration Act 1974 (Cth), see R Garnett and L Nottage, ‘The 2010 Amendments to the International Arbitration Act: A New Dawn for Australia?’ (2011) 7 Asian International Arbitration Journal 29; ‘What Law (if Any) Now Applies to International Commercial Arbitration in Australia?’ (2012) 35 University of New South Wales Law Journal 953. See  (accessed 25 May 2018). International Arbitration Act 1974 (Cth) ss 3(3), 7(1); ACD Tridon Inc v Tridon Australia Pty Ltd [2002] NSWSC 896 at [96].

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an order. A contrast may be made with jurisdiction clauses in this respect.5 An arbitration clause which, in its terms, creates an option to arbitrate (for example, the parties may submit any disputes to arbitration) is nevertheless enforceable under s 7 on the basis that once a dispute has arisen and a party elects to go to arbitration a binding obligation to arbitrate comes into existence.6

Writing requirement 6.3  To obtain a stay, the applicant must also show that there is an ‘[arbitration] agreement in writing’ under s  3 of the International Arbitration Act which is defined in Art II(2) of  the  convention as ‘an arbitral clause in a contract or an arbitration agreement signed by the [parties] or contained in an exchange of letters or telegrams’. The policy underlying the writing requirement is to ensure that an agreement was in fact consented to and concluded and that the terms of the arbitral clause are clear and susceptible of proof.7 The burden of proof lies on the party seeking to satisfy the writing requirement.8 Further, for an ‘exchange’ of documents to occur there must be a mutual transfer between the parties; a mere transmission from one party to the other is insufficient.9 In the 2010 amendments to the International Arbitration Act, the definition of ‘in writing’ was expanded10 to include an agreement whose ‘content is recorded in any form’ and which ‘is contained in an electronic communication and the information in that communication is accessible so as to be usable for subsequent reference’. The aim of this amendment is to ensure that an agreement in electronic form will be enforceable under Pt II of the Act. A further amendment in 201011 provides that a reference in a contract to any document containing an arbitration clause is also an ‘arbitration agreement’, provided that the reference is such as to make the clause part of the contract. Both new provisions apply to arbitration agreements entered into on or after 6 July 2010.12

A matter capable of settlement by arbitration 6.4  In order to defeat a stay application and avoid a dispute being referred to arbitration, a party will need to show that there is no ‘matter capable of settlement by arbitration’.13 In effect, the party must establish one of the following: that (a) the subject matter of the dispute is not ‘arbitrable’, in the sense that the public interest requires the issues to be heard 5.

6. 7. 8. 9. 10. 11. 12. 13.

See Chapter 4. Article 8 of the 1985 UNCITRAL Model Law on International Commercial Arbitration (the Model Law) (implemented in Australia in s 16(1) of the International Arbitration Act) provides an alternative and independent basis for a stay of court proceedings in favour of arbitration; see Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45 at [204]. The terms of Art 8 are similar to s 7. Administration of Norfolk Island v  SMEC Australia Pty Ltd [2004] NFSC 1 (Supreme Court of Norfolk Island). HIH Casualty & General Insurance Ltd (in liq) v Wallace (2006) 68 NSWLR 603; [2006] NSWSC 1150 at [135]. HIH Casualty & General Insurance Ltd (in liq) v Wallace (2006) 68 NSWLR 603; [2006] NSWSC 1150 at [145]. HIH Casualty & General Insurance Ltd (in liq) v Wallace (2006) 68 NSWLR 603; [2006] NSWSC 1150 at [145]. International Arbitration Act 1974 (Cth) s 3(4). International Arbitration Act 1974 (Cth) s 3(5). International Arbitration Amendment Act 2010 (Cth) Sch 1, item 28. International Arbitration Act 1974 (Cth) s 7(2).

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in a court; (b) the plaintiff ’s claims do not fall within the scope of the arbitration agreement and so are beyond an arbitral tribunal’s jurisdiction; or (c) the arbitration agreement is invalid or inoperative. Each of these elements is addressed below. Note, however, that to obtain a stay, there is no requirement that the claims or defences of the parties be ‘sustainable’ or have a reasonable prospect of success.14 Similarly, the fact that a matter might be resolved more quickly by a court and such quicker resolution is advantageous to one or both parties does not render the matter incapable of settlement by arbitration.15

Arbitrability 6.5  The concept of arbitrability has widened in recent years, to the extent that most commercial disputes involving private parties, with no rights of third parties involved, can be resolved by an arbitral tribunal. This category would include misleading and deceptive conduct claims under s 18 of the Australian Consumer Law 2010 (Cth),16 unless possibly if the deception alleged is of the public in general as opposed to a party to the contract.17 Arbitrability may also not exist where one of the parties is a ‘consumer’.18 Both competition19 and corporations matters are now generally arbitrable,20 although the power to issue a winding up order must remain with the courts because of the possible impact on third party creditors.21 Intellectual property matters may also be resolved by arbitration, at least where no ruling on the validity of a registered right such as a trade mark or patent with more than inter partes effect is involved.22 In AED Oil Ltd v Puffin FPSO Ltd (No 2), the status of taxation claims was left open, although the court found in that case that a dispute concerning the effect and operation of a term in a contract whereby one party conferred on the other an indemnity in respect of taxation liabilities was arbitrable.23 Furthermore, in Passlow v Butmac Pty Ltd,24 a statutory claim for contribution was held to be capable of resolution by arbitration even where the statute provided that contribution may be awarded where found by the court to be just and equitable.25 A dispute between a trustee 14. 15. 16. 17. 18. 19.

20. 21. 22.

23. 24. 25.

Robotunits Pty Ltd v Mennel [2015] VSC 268 at [32]. Roy Hill Holdings Pty Ltd v Samsung C&T Corp [2015] WASC 458 at [41]. Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 30 NSWLR 160. Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45 at [186]. See generally R Garnett, ‘Arbitration of Cross-Border Consumer Transactions in Australia: A Way Forward?’ (2017) 39 Sydney Law Review 569. Mitsubishi Motors Corp v Soler Chrysler-Plymouth, Inc (1985) 473 US 614; Casaceli v Natuzzi SpA (2012) 292 ALR 143; [2012] FCA 691 at [50] (exclusive dealing); but compare Nicola v Ideal Image Development Corp Inc (2009) 215 FCR 76; [2009] FCA 1177 at [59], [61], where the matter was left open. See ACD Tridon Inc v Tridon Australia Pty Ltd [2002] NSWSC 896; Robotunits Pty Ltd v Mennel [2015] VSC 268 at [69]; WDR Delaware Corp v Hydrox Holdings Pty Ltd [2016] FCA 1164. ACD Tridon Inc v  Tridon Australia Pty Ltd [2002] NSWSC 896 at [192]; WDR Delaware Corp v  Hydrox Holdings Pty Ltd [2016] FCA 1164 at [161]–[162]. N Blackaby, C Partasides, A Redfern and M Hunter, Redfern and Hunter on International Arbitration, 5th ed, Oxford University Press, 2009, p 125. In Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd (2011) 279 ALR 772; [2011] NSWSC 268, a dispute concerning the rights and obligations of parties to a contractual licence of a patent was held to be arbitrable. Copyright claims were held to be arbitrable in Desputeaux v Editions Chouette 2003 SCC 17. [2009] VSC 534 (reversed on other grounds: (2010) 27 VR 22; [2010] VSCA 37). [2012] NSWSC 225. See also Flint Ink NZ Ltd v Huhtamaki Australia Pty Ltd [2014] VSCA 166.

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and a beneficiary was also found to be arbitrable even where the arbitral tribunal would not have the power to remove the trustee directly.26 Criminal offences, employment disputes and family law matters all, however, remain generally non-arbitrable, although Pt II Div 4 of the Family Law Act 1975 (Cth) enables arbitration of some family law matters. A dispute, however, does not cease to be arbitrable merely because a non-party has an interest in the outcome of the arbitration and cannot be heard in the proceeding.27

Scope of the arbitration agreement 6.6  The scope of the arbitration agreement has been the subject of many Australian decisions, not all consistent with one another. Fortunately, the law has been largely clarified by the Full Federal Court in Comandate Marine Corp v Pan Australia Shipping Pty Ltd,28 where it was stressed that in interpreting the scope of an arbitration agreement or clause a wide and flexible approach should be taken, with the aim of referring as many of the plaintiff ’s claims as possible to arbitration. Narrow views of arbitration agreements lead to disputes being fragmented between courts and arbitral tribunals, an outcome which is not only inconvenient but may lead to inconsistent outcomes. Consequently, in Comandate it was held that where the parties had agreed to refer to London arbitration ‘all disputes arising out of the contract’, this wording would embrace both claims for breach of contract and breach of s 52 of the Trade Practices Act 1974 (Cth) (now s 18 of the Australian Consumer Law), based on pre-contractual misrepresentations. The court noted that the words ‘arising out of ’ would now be considered equivalent in scope to the previously-used wider term ‘arising in connection with’ and would cover matters relating to the making, terms and performance of the principal contract, as well as its breach.29 Such an approach therefore emphasises that the parties chose to arbitrate and this intention should be given effect to, and that less concern should be had for the particular wording used in their agreement. A broad approach to construction is justified by both party autonomy and the needs of international commerce, which require certainty and efficiency in dispute resolution. In more recent cases, therefore, stays have been almost routinely ordered where parties have used generous wording in their arbitration clause.30 However, where parties ‘carve out’ from an arbitration clause a sphere of disputes to be referred to litigation, and a party sues in court in accordance with the carve out, the court will not stay the proceedings. In Seeley International Pty Ltd v Electra Air Conditioning BV,31 parties to an agreement had provided that ‘any question or difference of opinion shall be referred to arbitration in Melbourne’, but also that ‘nothing in this clause … prevents a party from seeking injunctive or declaratory 26. 27. 28. 29. 30.

31.

Rinehart v Welker [2012] NSWCA 95 at [176]. Giedo van der Garde BV v Sauber Motorsport AG [2015] VSC 80 at [18] (affirmed (2015) 317 ALR 786). (2006) 157 FCR 45; [2006] FCAFC 192. At [175]. See, for example, WesTrac Pty Ltd v Eastcoast OTR Tyres Pty Ltd (2008) 219 FLR 461; [2008] NSWSC 894; Nicola v Ideal Image Development Corp Inc (2009) 215 FCR 76; [2009] FCA 1177; Casaceli v Natuzzi SpA (2012) 292 ALR 143; [2012] FCA 691; Cape Lambert Resources Pty Ltd v MCC Australian Sanjin Mining Pty Ltd [2013] WASCA 66; Robotunits Pty Ltd v Mennel [2015] VSC 268; Eriez Magnetics Pty Ltd v Duro Felguera Australia Pty Ltd [2017] WASC 304; Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170. (2008) 246 ALR 589; [2008] FCA 29 (aff ’d: [2008] FCAFC 169). For a fuller discussion, see  R Garnett, ‘Coexisting and Conflicting Jurisdiction and Arbitration Clauses’ (2013) 9 Journal of Private International Law 361.

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relief in the case of material breach or threatened breach of this agreement’. The plaintiff sought a declaration from the court that the defendant was in breach of the agreement and had engaged in conduct in violation of Australian consumer protection legislation. The court refused to stay its proceedings in favour of arbitration. 6.7  The court in Comandate also found that where parties enter into foreign arbitration and choice of law clauses, they should be held to their bargain even if the result is that they are not entitled to bring claims under an Australian statute such as the Australian Consumer Law because, for example, the foreign arbitrator refuses to apply that legislation.32 While in some decisions before Comandate courts had suggested that parties should not be able to contract out of the Trade Practices Act by choice of foreign law and arbitration,33 this view has now been superseded by the policy of enforcing arbitration agreements where possible. 6.8  A court can also impose conditions on the grant of a stay under s  7(2) of the International Arbitration Act and make interim or supplementary orders in relation to any property that is the subject matter of the stay application under s 7(3). Such powers, however, should not be exercised to usurp the jurisdiction of the arbitral tribunal but only to preserve the rights of the parties until the matter is before the tribunal.34

Third parties 6.9  The presence of third parties has also raised some important issues in stay applications. First, s  7(4) of the International Arbitration Act allows a person ‘claiming through or under a party’ to an arbitration agreement (as well as a party itself) to enforce an arbitration agreement by stay or have the agreement enforced against it. The expression ‘claiming through or under a party’ has been interpreted to require the satisfaction of two conditions. The first is where there is a relationship of sufficient proximity between the person claiming through or under the original party to the agreement and the second is where a claim or defence is ‘derived from’ such party.35 Examples of persons who were found to have the requisite proximity with the original party to the arbitration agreement and whose claims or defences were ‘derived’ from such party include a liquidator of a party;36 an assignee of a debt of a party;37 a subsidiary of a party;38 and a parent company and guarantor of a party.39 6.10  Sufficient ‘proximity’ and derived rights were also found to exist between subsidiaries of the same corporate group in Flint Ink NZ Ltd v Huhtamaki Australia Pty Ltd.40 Flint Ink concerned a plaintiff, Lion Dairy, who sued Huhtamaki Australia (HA) for losses to products caused by defective packaging supplied to it by HA. The packaging had been 32. 33. 34. 35. 36. 37. 38. 39. 40.

Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCAFC 192 at [241]; see also, to the same effect, Transfield Philippines Inc v Pacific Hydro Ltd [2006] VSC 175 at [73]. See, for example, Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) 90 FCR 1 at 23–4. Cape Lambert Resources Pty Ltd v MCC Australian Sanjin Mining Pty Ltd [2013] WASCA 66 at [95], [110]. BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169. Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332. The Leage [1984] 2 Lloyd’s Rep 259. Allergan Pharmaceuticals Inc v Bausch & Lomb Inc [1985] ATPR 40-636. AED Oil Ltd v Puffin FPSO Ltd (No 2) [2009] VSC 534. [2014] VSCA 166.

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manufactured in New Zealand by Huhtamaki New Zealand (HNZ), using ink supplied to it by a New Zealand company, Flint Ink. HA argued that if the packaging was defective, the defects were caused by the ink supplied by Flint Ink. HA filed a third party contribution action against Flint Ink and Flint Ink sought a stay based on a New Zealand arbitration agreement entered into between it and HNZ. Flint Ink argued that HA was bound by the arbitration clause as a party claiming through or under HNZ The Victorian Court of Appeal agreed, finding that HA had sufficient proximity to HNZ, as both companies were part of the same corporate group. HA’s claim was also derived from HNZ, as both companies manufactured and supplied packaging for products, including to the plaintiff, and both companies were susceptible to suffering economic loss in the event of a breach by Flint Ink. The particulars of breach in the third party claim identified a failure by Flint Ink to exercise reasonable care only in relation to HNZ, but no acts of breach were specified in relation to HA. Consequently, any breach of duty committed by Flint Ink against HA was wholly derivative of any breach by Flint Ink against HNZ, and so Flint Ink’s liability to HA could only arise if it were liable to HNZ. 6.11 The Huhtamaki case was, however, recently not followed by the Full Court of the Federal Court in Hancock Prospecting Pty Ltd v  Rinehart.41 The Full Court rejected the view that subsidiaries from the same corporate group have the requisite proximity to one another. Merely because persons are in a close relationship or their respective rights are closely related is not sufficient.42 Further, in Hancock, no derivative rights existed in the situation where a party to an arbitration agreement was sued for breach of fiduciary duty and a third party was sued as a knowing recipient of property that it had received from the original party. Liability for knowing receipt is direct and not derivative of liability for breach of fiduciary duty.43 Hence, the third party could not claim the benefit of the arbitration clause. 6.12  Also, as regards third parties, the mere fact that a plaintiff has sued in the same action another defendant who is not a party to an arbitration clause will not prevent a stay of the proceedings brought against a defendant who is bound by such a clause.44 This conclusion flows from the fact that a stay is mandatory where the requirements of s 7 are satisfied despite the inconvenient outcome of proceedings being fragmented between an arbitration tribunal and the court.

Invalid and inoperative arbitration agreements 6.13  An arbitration clause or agreement may, however, be invalid due to either the operation of a mandatory statute of the forum or conduct by a party, such as fraud or unconscionability, in the procuring of the agreement. Statutory provisions such as s 11(2) of the Carriage of Goods by Sea Act 1991 (Cth) and s 43(1) of the Insurance Contracts Act 1984 (Cth) prohibit arbitration in matters covered by the enactment and in such a 41. 42. 43. 44.

[2017] FCAFC 170. At [311]. At [316]. Abigroup Contractors Pty Ltd v Transfield Pty Ltd (1998) 217 ALR 435; [1998] VSC 103; Shipowners Mutual Protection and Indemnity Assn v Hodgetts [1999] 2 Qd R 58 (QCA).

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case a stay cannot be awarded because there is no arbitration agreement to enforce. This conclusion is confirmed by s 7(5) of the International Arbitration Act, which provides that a court is not required to order a stay where the arbitration agreement is ‘null and void, inoperative or incapable of being performed’. Yet, even in the context of s  11(2) above, which invalidates a foreign arbitration clause in a sea carriage document, courts in recent decisions have held that the prohibition does not apply to an arbitration provision in a voyage charterparty, as opposed to a clause in a bill of lading.46 The allegation of invalidity must, however, relate to the arbitration clause itself; arguments that the principal contract in which the clause is contained will not prevent enforcement of the arbitration clause and a stay being granted. This outcome flows from the acceptance by Australian courts of the doctrine of separability, which provides that the arbitration agreement and the principal contract in which it is normally contained are separate contracts, with an arbitrator having capacity to adjudicate questions relating to the validity of the principal contract.47 The separability doctrine applies unless the parties by their agreement have manifested an intention that the arbitration agreement is not to survive termination of the underlying contract.48 45

6.14  Australian courts, in several decisions, have considered the argument that an arbitration agreement has been rendered ‘inoperative’ because of waiver by one of the parties. However, clear evidence that a party had ‘intentionally and unequivocally abandoned its right to arbitrate’49 is required to establish this defence. So, for example, a waiver may arise where a party makes an application to the court for security for costs,50 where it has been guilty of gross delay51 in making a stay application or where it filed a cross-claim and/or defence on the merits in court.52 Note, however, that the filing of a defence in court proceedings to avoid the imminent threat of default judgment, when accompanied by a clear intention to arbitrate, is not a waiver.53 In addition, where parties, after a dispute arose, entered a new agreement submitting the dispute within the scope of the arbitration clause to resolution by a court, the arbitration clause was also found to be inoperative.54 Repudiation of an arbitration agreement by a party would also have that effect.55 An arbitration agreement is 45. 46.

47. 48. 49. 50. 51. 52. 53. 54. 55.

See also Insurance Act 1902 (NSW) s 19; HIH Casualty & General Insurance Ltd (in liq) v Wallace (2006) 68 NSWLR 603; [2006] NSWSC 1150. Dampskibsselskabet Norden A/S v  Beach Building and Civil Group Pty Ltd (2013) 216 FCR 469; [2013] FCAFC 107; Jebsens International (Australia) Pty Ltd v  Interfert Australia Pty Ltd (2012) 112 SASR 297; [2012] SASC 50. Ferris v Plaister (1994) 34 NSWLR 474; Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCAFC 192 at [229]. Roy Hill Holdings Pty Ltd v Samsung C&T Corp [2015] WASC 458 at [23]–[24]. Zhang v Shanghai Wool and Jute Textile Co Ltd (2006) 201 FLR 178; [2006] VSCA 133; Roy Hill Holdings Pty Ltd v Samsung C&T Corp [2015] WASC 458 at [33]. La Donna Pty Ltd v Wolford AG (2005) 194 FLR 26; [2005] VSC 359. ACD Tridon Inc v  Tridon Australia Pty Ltd [2002] NSWSC 896; BHPB Freight Pty Ltd v  Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169 at 185; [2008] FCA 551. BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169; [2008] FCA 551. Eisenwerk v Australian Granites Ltd [2001] 1 Qd R 461. Bakri Navigation Co Ltd v ‘Golden Glory’ Glorious Shipping SA (1991) 217 ALR 152; Monde Petroleum SA v Westernzagros Ltd [2015] EWHC 67. John Downing v Al Tameer Establishment [2002] EWCA Civ 721.

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not, however, rendered inoperative merely because neither party ‘enlivened’ the clause by giving notice of a dispute to the other party in accordance with their agreement.56

Applicable law in international arbitration 6.15  The issue of applicable law in international commercial arbitration is complex and requires a close analysis of the relevant statutory regime. The three principal laws to be considered are: (a) the law governing the substance or merits of the dispute (the lex causae); (b) the law governing the arbitration agreement; and (c) the law governing the arbitration procedure (the lex arbitri).

Law governing the substance Express choice of law and mandatory rules 6.16  The law governing the substance or merits of the dispute is in most cases the law which applies to the principal contract in which the arbitration clause or agreement is contained, since most disputes in international arbitration concern this contract. In their contracts, parties will often have made an express choice of the substantive law (normally the law of a country or, in a federal system, the law of a state or province). This selection will be generally given effect to according to principles of choice of law for contracts57 where the choice was made in good faith and (possibly) does not infringe mandatory rules of the forum. A complication, however, in respect of mandatory rules is that an international arbitration tribunal does not have a ‘forum’ in the same sense as a national court; it is a temporary body created by the agreement of the parties to resolve a discrete category of disputes as defined in the agreement. Arguably, therefore, an arbitral tribunal is not bound by the mandatory rules of the country in which the arbitration takes place, at least as far as substantive law is concerned. Some support for this view comes from Art 28(1) of the Model Law, which provides that ‘the tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute’. The absence of reference to mandatory rules in this provision possibly suggests that they need not be applied by the tribunal in an arbitration with the Model Law as procedural law.

Lex mercatoria 6.17  Article 28(1) requires an arbitral tribunal to give effect to the ‘rules of law’ as are chosen by the parties. The use of the plural ‘rules’ here may suggest that the drafters of the Model Law have intended that the parties could select something other than a domestic legal system as the applicable substantive law; for example, transnational commercial law principles or a lex mercatoria. Supporters58 of such a transnational law point to the development of increasingly uniform customs and practices of international trade such as the UNIDROIT Principles of International Commercial Contracts, the Uniform Customs 56. 57. 58.

Siam Steel International PLC v Compass Group (Australia) Pty Ltd [2014] WASC 415. See 17.7–17.13. See, for example, C Stoecker, ‘The Lex Mercatoria: To What Extent Does it Exist?’ (1990) 7 Journal of International Arbitration 101.

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and Practices on Documentary Credits and the Incoterms of the International Chamber of Commerce which, taken together, may be said to constitute an international customary law. Alternatively, the lex mercatoria may be seen as a method or technique59 whereby an arbitral tribunal can draw upon a range of diverse transnational sources to resolve a particular dispute. While common law commentators were initially sceptical about the existence of a lex mercatoria,60 a more relaxed attitude now seems to prevail as can be seen from a decision of the English Court of Appeal, where an award in which an arbitral tribunal applied ‘internationally accepted principles of law governing contractual relations’ was enforced.61

Amiable composition 6.18  In one respect, the Model Law clearly allows parties to choose an alternative to a domestic law. Article 28(3) provides that the parties to an arbitration agreement may authorise the tribunal in writing to resolve the dispute by reference to considerations of general justice and fairness (often referred to as the doctrine of amiable composition). Such an option, at least in common law countries, is rarely exercised.

No express choice of law 6.19  The next issue to consider is what substantive law will be applied by an international arbitration tribunal or court where the parties have not made an express choice in their agreement. According to general principles of choice of law for contract, an Australian court will first look for an implied choice of law by the parties and if this cannot be found then the law with which the contract is most closely connected will be sought. There is High Court authority62 to the effect that the choice of a place or seat of arbitration will constitute an implied choice of such law as the substantive law of the contract, although there have been cases where such a choice has been overcome by a preponderance of connections with another country.63 It should, however, be noted that the above principles are the Australian common law choice of law rules and may not necessarily apply in the case of a Model Law arbitration. Article 28(2) of the Model Law provides that in the absence of an express choice, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable. It is suggested, though, that in the case of an arbitration with an Australian seat, Australian choice of law rules would most likely be applied under Art 28(2).

Law governing the arbitration agreement 6.20  In practice, the law governing the arbitration agreement is rarely expressly chosen by the parties, although it does exist as a discrete entity because the arbitration clause is a legally separable agreement from the principal contract in which it is usually contained. The law governing the arbitration agreement determines issues such as the ascertainment of the 59. 60. 61. 62. 63.

E Gaillard, ‘Transnational Law: A Legal System or a Method of Decision-Making?’ (2001) 17 Arbitration International 62. See  especially M Mustill, ‘The New Lex Mercatoria: The First Twenty-Five Years’ (1987) 4 Arbitration International 86. Deutsche Schachtbau-und Tiefbohrgesellschaft mbH v Shell International Petroleum Co Ltd (No 1 & 2) [1990] 1 AC 295. Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418. Compagnie Tunisienne de Navigation SA v Compagnie d’Armement Maritime SA [1971] AC 572.

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parties to the agreement and the validity and scope of the agreement. In Australian court decisions, when the law governing the arbitration agreement is foreign it has only been occasionally pleaded.64 Where the arbitration agreement is a clause in a larger contract it has been assumed in most cases that the law governing the arbitration agreement is the same as that applicable to the principal contract, at least where the law of the principal contract has been expressly chosen by the parties.65 Where, however, no such choice has been made, it has been held that the governing law of the arbitration agreement should be the same as the law of the place or seat of arbitration.66 The application of mandatory rules of the forum to arbitration agreements (for example, rules which invalidate such agreements) is not entirely clear, although, as discussed above,67 such rules clearly apply in the context of stay applications in Australian courts, pursuant to s 7(5) of the International Arbitration Act.

Law governing the arbitral procedure The seat of the arbitration 6.21  The third major law in international arbitration is the law governing the arbitral procedure (the lex arbitri), which concerns matters such as the powers and duties of arbitrators, the requirements for their appointment and removal, challenges to awards, pleadings, hearings, evidence and award of interim measures by the arbitral tribunal and the court. It is now well accepted that the arbitral procedural law is the law of the place where the arbitration is to be held, often referred to as the ‘seat’ of the arbitration.68 While courts have recognised that it is theoretically possible for parties to choose the procedural law of another country to govern their arbitration, such a choice is rarely assumed to have been made given the practical complications that would result.69 It is also important to note the difference between the seat of the arbitration and a place where the arbitral tribunal chooses to conduct part of the proceedings, inspect evidence or examine witnesses.70 Once agreed, the seat of the arbitration does not change even when the tribunal conducts its hearings at a different place or places. To alter the seat or procedural law, a new, express agreement between the parties achieving this result is required.71 6.22  It is also common in arbitrations conducted under the auspices of an arbitral institution (such as the Australian Centre for International Commercial Arbitration 64. 65.

66. 67. 68. 69. 70. 71.

Recyclers of Australia Pty Ltd v Hettinga Equipment Inc (2000) 100 FCR 420; [2000] FCA 547; BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169; [2008] FCA 551. International Tank & Pipe SAK v Kuwait Aviation Fuelling Co KSC [1975] QB 224; Recyclers of Australia Pty Ltd v Hettinga Equipment Inc (2000) 100 FCR 420; [2000] FCA 547 at [22]; compare Sulamerica Cia Nacional de Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638, where the law of the principal contract was not applied because it would have invalidated the arbitration agreement. The law of the seat of arbitration was chosen instead. Deutsche Schachtbau-und Tiefbohrgesellschaft mbH v Shell International Petroleum Co Ltd (No 1 & 2) [1990] 1 AC 295 at 310. See 6.13. James Miller & Partners v Whitworth Street Estates (Manchester) Ltd [1970] AC 583; Shagang South-Asia (Hong Kong) Trading Co Ltd v Daewoo Logistics [2015] EWHC 194 (Comm). Naviera Amazonica Peruana SA v Compania Internacional de Seguros del Peru [1988] 1 Lloyd’s Rep 116. Model Law Art 20(2). PT Garuda Indonesia v Birgen Air [2002] SGCA 12 (Singapore CA).

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(ACICA)) for the procedural rules of such an institution to be incorporated in the arbitration agreement. Such rules will be applied by the arbitral tribunal subject to compliance with any mandatory provisions of the lex arbitri, which continues to operate as the supervisory procedural law of the arbitration. 72

The Model Law 6.23  In 1989, the Commonwealth Parliament enacted the Model Law in s  16 of the International Arbitration Act. The Model Law was developed by the United Nations as a law of arbitral procedure to be adapted by member states for the conduct of arbitrations within their territories. It was intended to be a vehicle for global harmonisation of arbitration law based on the principles of party autonomy and reduced judicial interference in the arbitral process. Such policy is reflected in the limited grounds for court removal of arbitrators (under Arts 12 and 14 of the Model Law) and for setting aside of awards (under Art 34). The Model Law, however, only applies to ‘international commercial arbitration’,73 with the terms ‘international’ and ‘commercial’ broadly defined. In effect, for an arbitration not to be ‘international’ it would have to be between two Australian parties providing for arbitration in Australia with performance of any contractual obligations occurring wholly within the country. Similarly, almost every conceivable business relationship would fall within the scope of ‘commercial’, except for consumer and employment agreements.74 A dispute over the ownership and entitlement to valuable assets is commercial despite being between members of a family.75 6.24  Once the parties’ agreement is found to involve ‘international commercial arbitration’, the Model Law will apply as the procedural law of the arbitration. However, the drafters of the 1989 amendments to the International Arbitration Act proceeded to allow parties to exclude the Model Law if they wished. Under the pre-July 2010 version of s 21 of the International Arbitration Act, the parties could agree that ‘any dispute that has arisen between them is to be settled otherwise than in accordance with the Model Law’. The intention of the drafters in enacting the old s 21 was to give parties further flexibility by allowing them to choose a procedural law other than the Model Law to govern their arbitration, in particular the previous uniform state legislation, which had features, such as a right of appeal on an error of law, not found in the Model Law. Parties occasionally chose the uniform state legislation in preference to the Model Law.76 6.25  More controversially, some courts also took the view that the choice by parties of procedural rules of an arbitral institution such as the International Chamber of Commerce, or ad hoc rules, in their arbitration agreement also amounted to an exclusion of the Model Law under s 21. Such an approach ignored the fact that Art 19 of the Model Law expressly allows parties to choose their own procedural rules, as well as having the unfortunate and unanticipated result that the uniform state legislation applied to the arbitration as the 72. 73. 74. 75. 76.

The ACICA Rules may be found at . Model Law Art 1. See Model Law Art 1(1) n 2 for the definition of ‘commercial’ and Garnett, n 18 above. Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170 at [133]–[135]. See, for example, Aerospatiale Holdings Australia Pty Ltd v Elspan International Ltd (1992) 28 NSWLR 321.

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arbitral procedural law. This conclusion flowed from the fact that every arbitration with an Australian seat must have a procedural law and so, with the Model Law excluded, the uniform legislation applied by default. A series of recent developments, however, has altered this position. Most significantly, in July 2010 the old s 21 was repealed and replaced by a new provision which states that: 21 Model Law covers the field — if the Model Law applies to an arbitration the law of a State or Territory relating to arbitration does not apply to that arbitration.

The effect of this provision is to make the Model Law mandatory for all international commercial arbitrations with their seat in Australia, with no scope for exclusion.77 If parties, for example, choose a set of institutional rules in their agreement, the Model Law will continue to apply as arbitral procedural law. In 2015 the provision was further amended to include a new s 21(2), which provides that s 21(1) applies to ‘an arbitration arising from arbitral proceedings that commence on or after the commencement of this sub-section, whether the arbitration agreement giving rise to the arbitration was made before, on or after 6 July 2010’. The effect of s 21(2) is that s 21(1) is made retrospective, at least as far as arbitration proceedings that commenced on or after 18 August 2015 are concerned.

Enforcement of arbitral awards 6.26  The enforcement of arbitral awards in Australia is governed by two regimes: the New York Convention and the Model Law. In the case of foreign awards, that is, awards made by an arbitral panel outside Australia, s 20 of the International Arbitration Act provides that where both the convention and the Model Law could apply to enforcement, the provisions of the convention will prevail. The result is that the enforcement provisions of the Model Law (Arts 35 and 36) apply, in practice, only to awards made in Australia where the Model Law was the procedural law of the arbitration.

Foreign arbitral awards 6.27  The provisions of the New York Convention with respect to enforcement of foreign awards (Arts III, V and VI) were enacted in s 8 of the International Arbitration Act. This section provides that, for enforcement in Australia, the foreign award must have been made in a country which is a member state of the convention, or the party seeking enforcement must be either domiciled or ordinarily resident in Australia or another convention country. Under s 3(3) of the Act, ‘ordinary residence’ in the case of a corporation refers to its place of incorporation or principal place of business.

Formalities 6.28  Once it is established that the convention is available for enforcement of an award, the party seeking enforcement must comply with some procedural requirements. Section 8(2) and (3) of the International Arbitration Act provides that the award may be enforced in a court of a state or territory or in the Federal Court as if the award were a judgment or an 77.

Explanatory Memorandum to the International Arbitration Amendment Bill 2009, paras 112, 117.

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order of that court. The party seeking enforcement must produce the original award or a certified copy thereof (s 9(1)) and the original arbitration agreement or a certified copy. Any documents not in English must be translated: s 9(3). In addition, the award creditor must satisfy the enforcing court, at least to the level of an arguable case, that the award creditor and award debtor were both parties to the arbitration agreement.78 Once these matters are complied with, an Australian court will then enforce the award unless the defendant can establish a defence under Art V of the convention (implemented in s 8(5) and (7) of the Act).

Defences: General 6.29  An important preliminary issue in respect of the defences under s 8(5) and (7) is whether they are exhaustive or whether an Australian court has a residual discretion not to enforce an award even where none of the express defences are established. While courts in a few Australian decisions have suggested that such a discretion existed, the matter has now been settled in the 2010 amendments to the International Arbitration Act, where a new s  8(3A) provides that the court ‘may only refuse to enforce a foreign award in the circumstances mentioned in subsections (5) and (7)’. Such a provision makes it clear that an Australian court no longer has any residual discretion not to enforce a foreign award. This view is also consistent with the unanimous opinion of commentators who have also asserted that the New York Convention defences are to be construed narrowly and only available in exceptional cases so as to ensure that the pro-enforcement policy of the convention is not undermined.79 Further evidence of this pro-enforcement policy can be seen in two recent decisions where indemnity costs were awarded against parties whose defences to enforcement lacked any reasonable prospects of success.80 Incapacity of party 6.30  The first defence under s 8(5) is that a party to the arbitration agreement was under an incapacity at the time the agreement was made. This ground has been very rarely invoked in decisions under the convention. Invalidity of arbitration agreement 6.31  The second defence is that the arbitration agreement was invalid under the law expressed in the agreement to be applicable to it or failing an express choice under the law of the country where the award was made. Again, this ground has rarely been pleaded, most likely because questions of invalidity of the arbitration agreement would be raised at an earlier stage of the proceedings. The presumption that foreign law is the same as Australian law has no application to this defence. The party resisting enforcement must therefore affirmatively establish the content of the foreign law.81

78. 79. 80. 81.

IMC Aviation Solutions Pty Ltd v Altain Khuder LLC (2011) 282 ALR 717; [2011] VSCA 248 at [135]. See, for example, A van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation, Kluwer Law International, The Netherlands, 1981, p 265. Ye v Zeng (No 5) [2016] FCA 850; Sino Dragon Trading Ltd v Noble Resources International Pte Ltd (No 2) [2016] FCA 1169. Liaoning Zhongwang Group Co Ltd v Alfield Group Pty Ltd [2017] FCA 1223; see also 9.3.

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Lack of notice of proceedings/inability to present case 6.32  The next defence is that a party was not given proper notice of the appointment of the arbitrator or the arbitration proceedings, or was otherwise unable to present its case in the arbitration proceedings. The question of notice of the proceedings was raised unsuccessfully in LKT Industrial Berhad (Malaysia) v Chun82 and Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd.83 In Uganda Telecom, the court held that the requirement of notice will be satisfied in two situations: first, where actual notice has been given to the defendant as a matter of fact; and second, where constructive or deemed notice has occurred, such as where the plaintiff ’s notice has complied with the parties’ contractual terms, including any arbitration rules.84 The issue of a party’s inability to present its case has been invoked in many decisions but has been rarely successful; courts generally take the view that only serious breaches of due process by the tribunal would suffice.85 An example of a violation would be where a party was prevented from presenting its case by matters outside its control,86 such as where it was not informed of the case which it was called upon to meet.87 A glaring example of such conduct occurred in Hui v Esposito Holdings Pty Ltd.88 There, an arbitrator stated that the availability of defences and set-offs would not be addressed in a preliminary hearing but then delivered an award which determined such issues, without giving the party an opportunity to be heard. The key statement of principle comes from the Full Court of the Federal Court in TCL Air Conditioner (Zhongshan) Co Ltd v  Castel Electronics Pty Ltd89 who stated that a breach of natural justice by a tribunal will not be established unless there is demonstrated ‘real unfairness’ or ‘real practical injustice’90 in how the dispute resolution was conducted. ‘Real practical injustice’ means that there is ‘a realistic rather than a fanciful possibility that the award may not have been made or may have differed in a material respect favourable to a party said to have been denied the opportunity’.91 ‘Real unfairness’ will not arise, by contrast, if the loss of opportunity to present one’s case was ‘a result of the party’s own failures or strategic choices’.92 Also, where a defendant’s complaint amounts to no more than a ‘disguised attack on the factual findings or legal conclusions of an arbitrator dressed up as a complaint about natural justice’,93 it will fail.

82. 83. 84. 85. 86. 87.

88. 89. 90. 91. 92. 93.

[2004] NSWSC 820. (2011) 277 ALR 415; [2011] FCA 131. See also International Relief and Development Inc v Nadu [2014] FCA 887 and Ekran OAO v Magneco Metrel UK Ltd [2017] EWHC 2208 (Comm). Parsons & Whittemore Overseas Co Inc v Societe Generale de L’Industrie du Papier 508 F 2d 969 at 975 (2nd Cir, 1974). Minmetals Germany GmbH v Ferco Steel Ltd [1999] 1 All ER (Comm) 315 at 326. Kanoria v  Guinness [2006] 1 Lloyd’s Rep 701; William Hare UAE LLC v  Aircraft Support Industries Pty Ltd [2014] NSWSC 1403 (affirmed [2015] NSWCA 229) (where an award of damages was made by an arbitral tribunal for a claim that was not included in the plaintiff ’s statement of claim). See also Malicorp v Government of the Arab Republic of Egypt [2015] EWHC 361 (Comm). [2017] FCA 648. (2014) 311 ALR 387; [2014] FCAFC 83. At [112]. Hui v Esposito Holdings Pty Ltd [2017] FCA 648 at [184]. At [228]. Giedo van der Garde BV v Sauber Motorsport AG (2015) 317 ALR 786 at [8].

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Excess of jurisdiction 6.33  The next defence is that the award deals with a difference or contains a decision on a matter not falling within the scope of the arbitration agreement. Consistent with the approach taken to the other convention defences, national courts have rarely refused to enforce awards on the basis that the tribunal exceeded its jurisdiction, largely because of a concern not to intrude upon the merits of the dispute and to ‘second-guess’ the arbitrator.94 This defence also needs to be read in conjunction with s 8(6) of the International Arbitration Act, which states that where an award contains decisions on matters submitted to arbitration, and those decisions can be separated from decisions on matters not submitted, then the part within jurisdiction can be enforced. In two Australian decisions courts have applied the doctrine of severance to excise an invalid part of an award, leaving the remainder enforceable.95 Composition/procedure inconsistent with agreement 6.34  A further defence is that the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the place of arbitration.

Award not binding/set aside in seat 6.35  An award will also not be enforceable where it has not yet become binding on the parties to the arbitration agreement or has been set aside by a competent authority of the country in which, or under the law of which, the award was made. The second part of this paragraph needs to be read in conjunction with s 8(8) of the International Arbitration Act, which provides that if an application to set aside the award is made in the country where the award was originally made, the court in the country of enforcement (for present purposes, the Australian court) may, if it considers appropriate, adjourn the proceedings. Returning, however, to the first issue under this paragraph, when is an award not binding on the parties? In Resort Condominiums v Bolwell,96 the Supreme Court of Queensland held that for an award to be enforceable under the convention it must finally dispose of, or at least resolve, one of the disputes of the parties. If a tribunal’s decision can be varied or changed by the same body in a later decision, it is not final. Hence, purely interlocutory orders must be distinguished from interim or partial awards such as an initial award on liability pending a further and final award on quantum of damages. Note, however, that Art 17H of the Model Law provides that an ‘interim measure’ issued by an arbitral tribunal shall be enforced ‘upon application to the competent court irrespective of the country in which it was issued’. This provision would allow an Australian court to enforce certain interlocutory orders made by a foreign arbitral tribunal, provided that the requirements of the Model Law are satisfied. Another aspect of the binding nature of an arbitral award is whether an additional formal requirement in the country where the award was made must be complied with before the 94. 95.

96.

Parsons & Whittemore Overseas Co Inc v  Societe Generale de L’Industrie du Papier 508 F 2d 969 at 976–7 (2nd Cir, 1974); Sino Dragon Trading Ltd v Noble Resources International Pte Ltd [2016] FCA 1131 at [6], [117]. International Movie Group Inc v Palace Entertainment Corp Pty Ltd (1995) 128 FLR 458; aff ’d sub nom ACN 006 397 413 Pty Ltd v International Movie Group (Canada) Inc [1997] 2 VR 31; William Hare UAE LLC v Aircraft Support Industries Pty Ltd [2014] NSWSC 1403 at [136] (affirmed [2015] NSWCA 229). (1993) 118 ALR 655.

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award can be enforced; for example, that the award be ‘confirmed’ by a court at the seat of arbitration. Courts have generally held that an award is enforceable under the convention without the need to comply with such formalities.97

Stay of enforcement 6.36  As noted above, under s  8(8) an Australian court may adjourn enforcement proceedings pending a challenge to the award in the country where it was made. Such an order was granted in Toyo Engineering Corp v John Holland Pty Ltd98 for the following reasons. First, the challenge to the award in the place of arbitration had a reasonable chance of success. Second, adequate security for payment of the award had been provided by the defendant should the award survive the challenge. Third, the challenge application had been brought promptly by the defendant. And finally, the stay was of a relatively short duration with consequently little prejudice to the plaintiff. By contrast, in Hallen v Angledal,99 the New  South Wales  Supreme Court refused to adjourn enforcement proceedings because, first, there was insufficient evidence that an application to set aside the award had been made to a court in the seat of arbitration, and, second, there was no arguable case for a challenge in any event. The 2010 amendments to the International Arbitration Act include new provisions which allow the court in the country of enforcement to order proceedings that have been adjourned under s  8(8) to be resumed and costs to be awarded against the party seeking adjournment where, for example, the challenge application is not being pursued in good faith or with reasonable diligence.100

Arbitrability 6.37  The final two defences to enforcement under the convention are contained in s 8(7)(a) and (b) and, in contrast to the grounds in s 8(5), these defences are not dependent on any request coming from the party against whom the award is invoked, but must be established by the party seeking enforcement in every case.101 The first of these defences is that the subject matter of the difference between the parties is not capable of settlement by arbitration. Arbitrability was discussed at 6.5, but here a different choice of law rule is applied: it is the standards of the law of the country of enforcement which govern. Conceivably, therefore, it would be possible for an award to be considered arbitrable in the country where the award is made (for example, on a competition law matter) but not under the law of the country of enforcement. Increasing harmonisation of the principles of arbitrability should, however, make such divergent outcomes rarer.

Public policy 6.38  The final defence under the convention is that the award is contrary to public policy. In Australia, a decision of the Supreme Court of Queensland102 gave public policy a very Union Nationale des Cooperatives Agricoles de Cereales v Robert Caterall & Co Ltd [1959] 2 QB 44; Rosseel NV v Oriental Commercial & Shipping Co (UK) Ltd [1991] 2 Lloyd’s Rep 625. 98. [2000] VSC 553; see also ESCO Corp v Bradken Resources Pty Ltd (2011) 282 ALR 282; [2011] FCA 905. 99. [1999] NSWSC 552. 100. International Arbitration Act 1974 (Cth) s 8(9), (10). 101. Transpac Capital Pte Ltd v Buntoro [2008] NSWSC 671 at [44]. 102. Resort Condominiums International Inc v Bolwell (1993) 118 ALR 655. 97.

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broad definition, to the effect that it would be violated whenever an arbitral tribunal made orders which could not be made by an Australian court. This arguably erroneous approach has, however, not been followed in later cases. More recent Australian authority has taken the view that the public policy defence should be narrowly interpreted, and only available where enforcement of the award would constitute an offence to fundamental norms of fairness or justice.103 A breach of public policy would embrace conduct which would be considered opprobrious according to commonly-held standards such as fraud, corruption, human trafficking or a contract to conduct a criminal enterprise.104 An error of law in the award does not satisfy this standard,105 but an award that permitted double recovery would be contrary to public policy.106 Note also that the 2010 amendments to the International Arbitration Act introduced a new s  8(7A) which provides that ‘without limiting s  8(7) enforcement of a foreign award would be contrary to public policy if (a) the making of the award was induced or affected by fraud or corruption or (b) a breach of the rules of natural justice occurred in connection with the making of the award’. The requirements for showing a breach of natural justice were discussed at 6.32 above, namely that a defendant must show a ‘real unfairness’ or a ‘real practical injustice’ in the conduct of the arbitration or the making of the award.107 In particular, there is no breach of natural justice merely because a person who may be affected by the outcome of an arbitration is not involved in the proceeding. Such a conclusion flows from the inter partes nature of arbitration.108 The same approach applies to determining whether an award should not be enforced on the ground of bias.109

Enforcement of awards under the Model Law 6.39  In practice, enforcement under Arts 35 and 36 of the Model Law will only be required in the case of awards made in Australia which arose from an ‘international commercial arbitration’ under Art 1 and, in the case of agreements entered into before 6 July 2010, did not involve an exclusion of the Model Law under s 21 of the International Arbitration Act. Since, however, the Model Law provisions on enforcement are effectively identical to the convention, the discussion at 6.26–6.38 would equally apply here. In TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia,110 the High Court rejected an argument that the enforcement by an Australian court of an award under Art 35, in circumstances where it could not deny enforcement on the ground of error of law, was unconstitutional. 103. Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd (No 2) [2012] FCA 1214 at [33], [177]; Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd (2011) 277 ALR 415; [2011] FCA 131 at [132]; Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2) (2012) 201 FCR 535; [2012] FCA 276 at [96]. 104. Soleimany v Soleimany [1999] QB 785 (English CA). 105. Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd (2011) 277 ALR 415; [2011] FCA 131 at [133]. Nor would ‘mere procedural imperfections’: Colin Joss & Co Pty Ltd v  Cube Furniture Pty Ltd [2015] NSWSC 735 at [46]. 106. Indian Farmers Fertiliser Cooperative Ltd v Gutnick [2015] VSC 724 (affirmed [2016] VSCA 5). 107. TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 311 ALR 387; [2014] FCAFC 83. 108. Giedo van der Garde BV v Sauber Motorsport AG [2015] VSC 80 at [26] (affirmed (2015) 317 ALR 786). 109. ALYK (HK) Ltd v Caprock Commodities Trading Pty Ltd and China Construction Bank Corp [2015] NSWSC 1006 at [34]; Sino Dragon Trading Ltd v Noble Resources International Pte Ltd [2016] FCA 1131 at [191]. 110. (2013) 295 ALR 596; [2013] HCA 5.

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Investor–state arbitration 6.40  In 1989, the Commonwealth Parliament also enacted the Convention on the Settlement of Investment Disputes (ICSID Convention) into Australian law in the International Arbitration Act.111 The convention was concluded in 1965 and currently has 153 state parties.112 The objective of the ICSID Convention is to encourage private investment and promote confidence between states and private investors. To this end, the convention provides an arbitration mechanism for disputes between investors and host states which can be invoked pursuant to an arbitration clause in a contract or, more commonly, through the provisions of a bilateral investment treaty (BIT) between the host state and the nation state of the investor which confers on the investor a direct right to arbitrate against the host state. All contracting countries to the ICSID Convention are bound to recognise and enforce awards given under the convention, with only limited grounds available to apply for annulment of the award. Specifically, annulment may only be granted where: the arbitral tribunal has been improperly constituted; there has been a manifest excess of jurisdiction; there has been corruption by the tribunal; there has been a serious departure from a fundamental rule of procedure; or there has been a failure to state the reasons upon which the award is based.113 In Australia, the statutory mechanism for enforcement of an ICSID award is s  35 of the International Arbitration Act, which provides that an award may be enforced in a state or territory court or the Federal Court of Australia as if it were a judgment of the court. An ICSID award was recently enforced in Australia in Lahoud v The Democratic Republic of Congo.114

111. 112. 113. 114.

International Arbitration Act 1974 (Cth) s 32 and Sch 3. As of May 2018. ICSID Convention Art 52(1). [2017] FCA 92.

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PART 3 Choice of Law Method

Chapter 7 Choice of Law Method 1: The General Part Introduction 7.1  The choice of law question only arises if a court in the forum has jurisdiction to determine a case, and does not consider that it should decline to exercise that jurisdiction. That being so, the court must decide the case. However, it does not necessarily follow that, as the forum court has jurisdiction, it must determine the case in accordance with its own local law — the law of the forum. The contacts that the case could have with another place may, at times, require the forum court to decide the case in accordance with the law of another country or state. This is the issue which, in the strictest sense, the term ‘conflict of laws’ addresses. The court will only have to decide between the law of the forum and the law of another place if, when applied, they lead to different, conflicting outcomes. 7.2  As will be seen, the result in a choice of law case does not only depend on the choice of law rule relevant to the case. It is often just as important to identify the point at which, when dealing with a case, a court must decide whether there is even a need to invoke a choice of law rule, and how that rule is to be invoked. These are issues of method or process, rather than the content of the choice of law rule. For this reason, in this chapter and in Chapter 8 special attention is given to the method used when addressing a choice of law problem. However, it would be a mistake to think that the method outlined in these chapters is prescribed by law, or even habitually adopted by judges dealing with choice of law cases. Rather, the steps outlined follow from the usual structure of a multi-state case and of modern choice of law rules. In practice, the judge usually isolates the few issues that are central to resolving the dispute between the parties, and addresses them directly. But the complete mental process that the judge could undertake in coming to select those few issues is rarely ever articulated. It cannot be pretended that these steps represent a logical process. There is circularity involved in this method, especially at the point at which a conflict of laws is identified. Finally, the method fits some areas of the law better than it does others. Multi-state marriage and property cases are probably better adapted to this method than are, for example, cases involving issues of contract. Nevertheless, in all areas it might be necessary that the approach to the problem be adjusted to take important nuances of the case into account. Legal reasoning is rarely as tidy as this outline of choice of law method might initially suggest. 7.3  The key steps entailed in this method are: (1) the identification of a conflict of laws; (2) the classification of the subject matter; (3) the classification of substantive or procedural 191

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law; (4) the identification of the choice of law rule; and (5) the application of the law of the cause. This is sometimes called ‘The General Part’ of the choice of law method, as it leads the court to decide the law that should generally apply to the case. There are exceptions, arising either because of complications created by choice of law rules themselves or because of the nature of the law that would, in the general case, have to be applied.1 These are discussed in Chapter 8.

Choice of law and internal rules 7.4  This outline of the choice of law method also owes much to the influential work of Lederman on how, in a multi-state case, facts and laws are to be classified.2 The most important distinction in Lederman’s work is the difference between ‘indicative rules’ and ‘dispositive rules’ — more commonly referred to as ‘choice of law rules’ and ‘internal rules’. The choice of law (or indicative) rule does not ‘supply the answer’ to the question raised in a multi-state case. Its function is to ‘refer authoritatively to another body of rules of law which will answer this question’:3 that is, the choice of law rule is a jurisdiction-selecting rule. It therefore indicates whether the case is to be determined in accordance with, for example, the law of the forum or the law of another place. In its simplest form, a choice of law rule will therefore specify a juridical category (such as the formal validity of marriage or tort) and its associated connecting factor (such as the place of solemnisation or the place where the tort occurred) that effectively selects a legal system.4 The selected legal system is called the law of the cause (lex causae). However, the identification of the law of the cause does not in itself suggest to the court how the merits of the case are to be determined. It merely indicates which place’s law will provide the rules that ultimately determine that. The internal (or dispositive) rules provide the answer to the question raised by the case. They address the ultimate issue on the merits — such as whether a marriage is valid, whether the plaintiff can succeed, whether probate should be granted and so on.5 So, in the most general sense, the choice of law method requires the initial application of a choice of law rule that identifies the law of a particular place as the law of the cause, and the law of the cause then provides an internal rule that determines the outcome.

The identification of a conflict of laws 7.5  There is no need to invoke the choice of law method unless there is a true conflict of laws involved in the case before the court. This question itself can only be answered after considering two subordinate issues, namely: • which legal systems are possibly relevant to the case; and

1. 2. 3. 4.

5.

F K Juenger, Choice of Law and Multi-State Justice, Martinus Nijhoff, London, 1993, pp 43, 70–4. W R Lederman, ‘Classification in Private International Law’ (1951) 3 Canadian Bar Review 1. At 15. R D Leslie, ‘Building Blocks for Choice of Law Structures’ (1998) 19 Statute Law Review 202 at 202–6. Choice of law rules can be structured differently; for example, by stating a hierarchy of connecting factors or exceptions to the preferred connecting factor: Leslie at 206–8. Lederman, above n 2, at 15–16.

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7.10

• the likely result in the case on application of the internal rules of each of those possibly relevant legal systems.

Identifying the possibly relevant legal systems 7.6  The local court must first identify the legal systems that are possibly relevant to the case. Herein lies the circularity of this method. Local choice of law rules must be used to identify these possibly relevant legal systems. However, the very purpose of the exercise is to narrow the problem before the court so that it is in a better position to decide whether any choice of law rule needs to be invoked in the case and, if so, which one. In accordance with Lederman’s suggestion, the court must at this point identify which legal systems would be relevant on application of any choice of law rule currently obtaining in the forum.6 7.7  Obviously, if this step were undertaken too officiously the judge would need an extraordinary knowledge of choice of law rules. The authors of Nygh rightly point out that this process merely eliminates the need to consider laws that are ‘on any view irrelevant’.7 In practice, the legal systems that are at least within the range of consideration by the court in a multi-state case are evident to anyone with a general understanding of choice of law rules.

The internal rules of the possibly relevant systems 7.8  Once the possibly relevant legal systems have been identified, the internal laws of those legal systems are applied to the case. This indicates how, if the case were treated as a purely domestic proceeding in each of the possibly relevant places, the laws of those places would require the proceeding to be determined. At this stage, the choice of law rules of each relevant place should be ignored.

A conflict of laws A true conflict 7.9  The likely outcome in each of the possibly relevant territories allows the court in the forum to determine whether there is a true conflict of laws. If there is (in the sense that the laws of the relevant places require the case to be determined in different ways), then the court will have to proceed to other steps in the choice of law method as, if the case is to be decided one way or another, the court has to resolve the conflict. The choice of law rule is needed as a genuine tie-breaker.

A false conflict 7.10  Once the internal laws of the relevant places are applied, it may become evident that the case will be decided the same way, regardless of which law is applied. This is common, and is known generically as a ‘false conflict’ (although American theorists use 6. 7.

Lederman, above n 2, at 21. M Davies, A Bell and P Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, Sydney, 2014, p 344.

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the term in a more extended sense). A false conflict can arise, first of all, because the law of a foreign place is either not applied, or presumed to be the same as the law of the forum, unless it is proved by evidence to differ from the law of the forum.8 That being so, where this evidence is not available the forum court will have to apply the law of the forum — or will assume that the outcome required on application of the internal laws of the forum and the foreign place is the same and, so, that there is no conflict of laws. Second, there is a high degree of uniformity between the laws of different states and territories of Australia. The common law is assumed to be uniform throughout Australia, which means that choice of law issues should not arise in interstate cases where, in all relevant states or territories, the relevant internal rules are common law. That significantly reduces the potential for choice of law cases within Australia. However, the export of the common law of England and United  Kingdom statutory developments to much of the Commonwealth has also reduced the potential for conflicts of laws on a broader scale. For example, Gore v Octahim Wise Ltd9 was a multi-state bill of exchange case in the Supreme Court of Queensland. The case had contacts with Australia and Hong Kong, and further analysis would probably have revealed that the law of Hong Kong was the law of the cause. However, once Williams J determined that the Hong Kong Bills of Exchange Ordinance was substantially the same as the Bills of Exchange Act 1909 (Cth), he was able to decide the case in accordance with the latter.10 In this case, subsequent reference to a choice of law rule would have added nothing to the ultimate determination of the proceeding. 7.11  Gore represents good choice of law method, as it shows a judge prepared to avoid any reference to a choice of law rule unless that is essential to decide the case brought by the parties to the court.11 In comparison, in Koop v Bebb12 the High Court unnecessarily spent time discussing the choice of law rules for an interstate tort even though the laws of the relevant states — New South Wales and Victoria — were identical. Finally, it should be noted that, once applied, different internal laws can sometimes lead to the same outcome. If so, there is again no true conflict of laws and no need to proceed with the choice of law method. In all these false conflicts, the forum court will be able to reach a decision in the case without the need to use a choice of law rule.

The classification of the subject matter The subject matter 7.12  If there is a true conflict, the court can only determine the proceeding by reference to the choice of law method. At this point, the court must classify the subject matter that is addressed differently by the laws of the relevant jurisdictions. The process of classification (which is also called characterisation or qualification) requires the court to allocate the subject matter of the proceeding to one of the established choice of law classifications. 8. 9. 10. 11. 12.

See 9.2–9.4. [1995] 2 Qd R 242. At 243–4. See also Thorn-L & M Appliances Pty Ltd v Claudianos [1970] Qd R 141. (1951) 84 CLR 629.

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7.13

This therefore requires, first, that the court identify precisely the nature of the subject matter. While, when viewed closely, classification will always involve reference to the conflicting rules engaged in the dispute,13 it still remains necessary to determine which particular rules of law drawn to the court’s attention by the proceedings are to be classified.

What is classified? 7.13  More specifically, the question in classification is whether the court merely needs to classify the rules of law engaged in the cause of action brought by the plaintiff. In many cases, the court may only have to consider the juridical classification of the plaintiff ’s cause of action, but the more accurate position seems to be that it is the question on which the parties join issue that is the proper subject matter to be classified. In John Pfeiffer Pty Ltd v Rogerson,14 the majority of judges in the High Court (Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ) referred to the characterisation of ‘actions’. Too much should not be made of this. The reference is casual, and does not involve any consideration of the question of classification. In Pfeiffer also, the matter on which the parties had joined issue was the action itself. Macmillan Inc v Bishopsgate Investment Trust plc (No 3)15 is a clearer example of a case where classification was important, and the parties had not joined issue on the cause of action. A restitutionary claim for breach of trust was brought in England against the three defendant companies to recover shares held in companies incorporated in New York. The breach of trust would, under the usual English choice of law rule, be governed by the law of England, where the breach occurred. However, the defendant companies did not dispute the breach of trust, but claimed in defence that they had interests in the shares in priority to the plaintiff, as they were purchasers for value in good faith and without notice. A  question of priorities would, by the usual English choice of law rule, be governed by the law of the place where the shares were deemed to be located, which in Macmillan was New York. Accordingly, the case turned on whether it was the cause of action or the defence that was to be classified. The English Court of Appeal held unanimously that it was the ‘issue’ that was to be classified. As Staughton LJ put it: ‘I would regard it as plain that the rules of conflict of laws must be directed to the particular issue of law which is in dispute, rather than the cause of action which the plaintiff relies on’.16 In separate judgments, Auld and Aldous LJJ made the same point.17 As there was no question concerning the breach of trust in issue between the parties, and the case would turn on how the question of priorities would be decided, the court applied the law of New York. The Macmillan approach was endorsed by Callinan J in Sweedman v Transport Accident Commission,18 where his Honour referred to it as classification of ‘substance rather than form’, or ‘of the true, real, or substantial issues in dispute, of law and fact … and not the 13. 14. 15. 16. 17. 18.

C Forsyth, ‘Characterisation Revisited: An Essay in the Theory and Practice of English Conflict of Laws’ (1998) 114 Law Quarterly Review 141 at 148. (2000) 203 CLR 503; [2000] HCA 36 at [81]. [1996] 1 All ER 585. At 596. At 604, 614; Shipowners Mutual Protection and Indemnity Association (Luxembourg) v  Containerships Denizcilik Nakliyat VE Ticaret AS (The Yusuf Ceprioglu) [2016] EWCA Civ 386 at [15]. (2006) 226 CLR 362; [2006] HCA 8.

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nomenclature of the cause of action’.19 Similar approaches to this have been taken where defendants have raised contractual defences to claims in tort. The usual method adopted by English courts has been to classify the question as one of contract.20 7.14  It can be appropriate that the cause of action is classified. If the defendant denies the allegations made by the plaintiff in the action, or that the action establishes any liability on the defendant’s part,21 then the parties have joined issue on aspects of the cause of action. This would make it the appropriate object of classification, even in terms of the analysis undertaken in Macmillan Inc v Bishopsgate Investment Trust plc (No 3).22

Allocation 7.15  The subject matter is then allocated to the appropriate choice of law classification. This is a question of law.

Complications 7.16  The process of classification is not usually troublesome, but two complications do occasionally arise in the case law. First, there is a small and relatively fixed number of classifications that largely took their present form in the 19th century. A case could involve subject matter that has not been previously allocated to one of these classifications and that does not fit neatly into one of them. Second, the subject matter always involves a foreign law — whether that foreign law be in conflict with another or with the law of the forum. Is  a court in the forum to classify that foreign law in accordance with the principles of the law of the forum, or should it make some concession to the principles of the foreign law?

Classifications 7.17  The law does not generally provide efficient tools for dealing with novel cases, and this is no different for one that requires a conflict of laws to be classified. Through the 20th century, many of these novel cases arose in new areas of the law created by statute and, understandably, the courts were reluctant to allocate them to established common law classifications. This was especially so in areas of workplace compensation law. These claims have some similarities to both contract and tort, but the courts have been reluctant to classify them as either. Workplace compensation claims have tended to be treated as unique.23 On the other hand, statutory claims that can sometimes be brought directly against a motor vehicle insurer also have similarities to both contract and tort. Here, the

19. 20.

21. 22. 23.

At [116]–[117]. Canadian Pacific Railway Co v Parent [1917] AC 195; Walpole v Canadian Northern Railways Co [1923] AC 113 at 118; Zivnostienka Banka National Corp v Frankman [1950] AC 57; Sayers v International Drilling Co NV [1971] 3 All ER 163; see 18.47. Ryder v Hartford Insurance Co [1977] VR 257; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36. [1996] 1 All ER 585. Mynott v Barnard (1939) 62 CLR 68; Borg Warner (Aust) Ltd v Zupan [1982] VR 437.

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7.19

courts have been prepared to treat them as one or the other, with some inconsistency.24 There is no real method that explains the difference in approach. 7.18  Where the subject matter is more traditional, a more principled approach can be possible. This is sometimes called the ‘analytical approach’. For example, in a case often discussed in this context, Apt v  Apt,25 the subject matter was a marriage that took place in Argentina by proxy. At the time the marriage was solemnised, the wife was in England. However, English courts had never classified a question of marriage by proxy. There were two primary choice of law rules in England relating to marriage. Questions concerning the formal validity of marriage were determined by the law of the place where the marriage was celebrated (lex loci celebrationis) — in this case, Argentina, under whose internal law the marriage was valid. Questions concerning the essential validity of a marriage were determined by the law of the place where the parties were domiciled at the time of the marriage. For the wife, this was England, under whose internal law the marriage was invalid. So, the classification of the question of marriage by proxy was decisive to the outcome. Lord Merriman P concluded that ‘the celebration of marriage by proxy is a matter of the form of the ceremony or proceeding, and not an essential of the marriage’.26 In the Court of Appeal, Cohen LJ agreed that ‘the method of giving consent as distinct from the fact of consent is essentially a matter for the lex loci celebrationis, and does not raise a question of capacity’.27 The law of the cause was therefore Argentine, and the marriage was held in England to be valid. Accordingly, the method used by the courts in Apt was first to analyse the role and juridical purpose of the rule, and to take that into account when deciding how to classify it. The analytical approach is also relatively indifferent to the ultimate outcome, the purpose being to make a principled allocation of the subject matter to a choice of law classification without considering the consequences of that classification for the parties.28 7.19  The outcome of classifying the subject matter in one way or another is an important issue under the ‘functional approach’. Here, the court in the forum largely classifies the subject matter in the way that will, from the law of the forum’s perspective, secure the most desirable result in the case. In some cases, the courts’ preference for one classification over another has been based openly on the perceived demands of justice.29 In others, the motivation for the classification is not stated so openly. However, it is possible to interpret some cases involving statutory claims brought directly against a motor vehicle insurer as involving a more result-oriented classification. In these cases, the subject matter had sometimes been classified as tortious, meaning (under the then choice of law rule for torts) that a plaintiff could only recover if there was a right of recovery under the law of the forum

24.

25. 26. 27. 28. 29.

Compare Plozza v South Australian Insurance Co Ltd [1963] SASR 122; and Hodge v Club Motor Insurance Agency Pty Ltd (1974) 7 SASR 86 to Li Lian Tan v Durham and General Accident & Life Assurance Corp Ltd [1966] SASR 143; and Ryder v Hartford Insurance Co [1977] VR 257. [1947] P 127; [1948] P 83. Apt v Apt [1947] P 127 at 147. Apt v Apt [1948] P 83 at 88. Re Korvine’s Trust [1921] 1 Ch 343. For example, National Bank of Greece and Athens v Metliss [1958] AC 509; Adams v National Bank of Greece and Athens [1961] AC 255.

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and the law of the place where the tort occurred.30 Had this been the classification adopted in Hodge v Club Motor Insurance Agency Pty Ltd,31 the plaintiff would not have recovered. The forum was South Australia and the accident took place in that state. However, the motor vehicle was insured in Queensland and the right to sue the insurer directly only existed under the Motor Vehicle Insurance Act 1936 (Qld). Bray CJ held that the subject matter was properly classified as quasi-contractual, largely because the obligation on the insurer arose under statute and was ‘like one arising out of a contract’.32 The propriety of that classification has been hotly disputed.33 However, the effect in Hodge of treating the subject matter as quasi-contractual was that the choice of law rule identified the law of Queensland as the law of the cause, and the plaintiff was therefore able to recover damages.

The law of classification 7.20  The second complicating issue that can arise when classifying the subject matter of the proceeding is the law used to undertake that process. Is it to be the law of the forum, or are the juridical concepts of the law of the relevant foreign jurisdiction also to be considered? In  Oceanic Sun Line Special Shipping Co Inc v  Fay,34 Brennan J held that classification should be undertaken in accordance with the law of the forum, and certainly, this must be the primary reference for a court undertaking classification. It is undoubtedly the practice of the courts.35 For example, in Lee v Lau36 an English court had to classify a customary Chinese marriage that took place in Hong Kong. The union allowed the man to have tsipsis, or secondary wives, who had rights of succession and whose children would be regarded as legitimate. In Hong Kong, this customary union was regarded as a monogamous marriage. However, Cairns J rejected the use of the law of Hong Kong for classification of the marriage. He classified it in accordance with the law of England as potentially polygamous — an express application of the law of the forum. There are numerous other examples of classification by the law of the forum in the case law.37 7.21  The one exception to the primary classification of the subject matter in accordance with the law of the forum is the classification of property as immovable or movable. This is done in accordance with the law of the place where the property is situate.38 7.22  However, too strict an application of the law of the forum at the point of subject matter classification can thwart the whole choice of law process.39 For example, in Mohamed 30. 31. 32. 33. 34. 35. 36. 37. 38. 39.

For example, Li Lian Tan v  Durham and General Accident & Life Assurance Corp Ltd [1966] SASR 143; Ryder v Hartford Insurance Co [1977] VR 257. (1974) 7 SASR 86. Nominal Defendant v Bagots Executor & Trustee Co Ltd [1971] SASR 346 at 365–7. D Kingsford-Smith and G Burton, ‘Recent Problems with Characterization of Statutory Rights in the Conflict of Laws’ (1980) 9 Sydney Law Review 190. (1988) 165 CLR 197 at 225. Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [1996] 1 All ER 585 at 604, 614. [1967] P 14. For example, Leroux v Brown (1852) 12 CB 801; 138 ER 1119; Huntington v Attrill [1893] AC 150; Re Martin [1900] P 211; De Reneville v De Reneville [1948] P 100. See 20.3. Raiffeisen Zentralbank Osterreich AG v Five Star General Trading LLC [2001] 3 All ER 257 at 269.

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v Knott an English court had to determine the validity of a marriage in Nigeria between two Nigerians. The wife was aged 13 at the time, an age at which she could lawfully marry under the law of Nigeria but not under the law of England. Had the English court classified strictly in accordance with the law of the forum it could have found that this case did not concern a marriage, as a 13-year-old could not, by the law of England, enter into marriage. However, this would pre-empt the choice of law process so, to some extent, application of the law of the forum was suspended until a more general classification was completed. In Mohamed v Knott, the English court held that this was a question of the essential validity of a marriage, and as this was determined by the law of the place where the parties were domiciled, the marriage was valid. 40

7.23  If classification is not to be undertaken by too strict an application of the law of the forum, it is also evident that it should not be made purely by reference to some other law. Despagnet advocated classification by reference to the law of the cause. This is, though, premature. The whole purpose of the choice of law process (including classification) is the identification of the law of the cause and so, if that is already known at the time of classification, it would be pointless even to undertake classification in the first place. Rabel’s suggestion that classification should be undertaken by reference to concepts that are independent of any one legal tradition is more theoretically appealing. The difficulty is the character of private international law as municipal law, not international law (in the pure sense) that can be developed by state practice. Identifying and, in an international context, agreeing on these common international concepts is problematic, and simply does not happen in practice. Falconbridge built on this approach, claiming that courts basically classified by reference to the law of the forum.41 However, this is not classification by reference to the categories of the forum’s internal law. Instead, it must use, and in doing so, develop, the categories of the private international law of the forum, which is supposed to have more encompassing and cosmopolitan legal concepts, that are better able to manage a legitimate classification of foreign laws.42 This is closer to the actual practice of the courts. In general, the courts use the law of the forum but are prepared also to take the context of the foreign rule into account. A good example is In the Estate of Maldonado.43 There, the Spanish Civil Code provided that the State of Spain was to inherit property for which there was no heir. The applicable rule under the law of England was that of bona vacantia, by which the British Crown would take the property. If this were a question of succession to movable property, the law of the cause would be Spanish. However, if it were one of appropriation, English law would apply and the Crown would take the property. In  England, Barnard J accepted that the Spanish rule should be interpreted in its own context as one of succession. The property was therefore to pass to the State of Spain. This approach still begins with the law of the forum, as the private international law of 40. 41. 42.

43.

[1969] 1 QB 1. J D Falconbridge, Essays on the Conflict of Laws, 2nd ed, Law Book Co, Toronto, 1954, p 52. Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [1996] 1 All ER 585 at 604; Raiffeisen Zentralbank Osterreich AG v Five Star General Trading LLC [2001] 3 All ER 257 at 269; Secure Capital SA v Credit Suisse AG [2015] EWHC 388 (Comm) at [32] (aff ’d [2017] EWCA Civ 1486); Hamilton v Hamilton [2016] EWHC 1132 (Ch) at [161]–[162]. [1954] P 223.

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England had a class of succession to movable property and an associated choice of law rule that were both used to reach a determination of the case. However, the Spanish position that the rule of heirlessness was one of succession was also recognised and given effect by incorporation into the English classification.

The classification of substantive or procedural law General principles of procedural law The right–remedy distinction 7.24  An important consideration that can arise in choice of law cases is whether the subject matter to be classified involves substantive or procedural law.44 Classification of the issue is to be conducted primarily according to the principles of the law of the forum.45 Consequently, statutory provisions of the law of the cause that declare an issue to be substantive are not determinative of the question in proceedings in the forum.46 If the issue is one of substance, the appropriate choice of law rule is used to identify the law of the cause that may be the law of another place. However, if the subject matter in question is procedural, it is generally determined in accordance with the law of the forum.47 The  question therefore becomes what constitutes a procedural law, and it is one that common law courts were traditionally prepared to answer in the broadest terms. This tendency stemmed from the 19th century case of Huber v Steiner,48 where a distinction was made between law that affected the ‘rights and merits’ of a contract, which was regarded as substantive, and one that affected the enforcement of the right or the remedy only, which was procedural.49 Subsequently, the right–remedy distinction was used as a substitute for the question whether the issue was to be classified as substantive or procedural. The use of the right–remedy distinction was, as recent reforms have proved, unnecessary, and it would have been equally possible simply to attempt a classification of an issue as procedural. Further, it took this process of classification far from its moorings in procedural law and gave greater opportunity for forum courts to apply their own law. This was exemplified by two decisions of the High Court of Australia in the early 1990s: McKain v RW Miller & Co (South Australia) Pty Ltd50 and Stevens v Head.51 In McKain, an appeal from New South Wales, the majority (comprising Brennan, Dawson, Toohey and 44. 45. 46.

47.

48. 49. 50. 51.

See, generally, R Garnett, Substance and Procedure in Private International Law, Oxford University Press, Oxford, 2012. Hamilton v Merck & Co Inc (2006) 66 NSWLR 48; [2006] NSWCA 55. Hamilton v  Merck & Co Inc (2006) 66 NSWLR 48; [2006] NSWCA 55 at [44]; Martin v  Kelly (1995) 22 MVR 115 at 124; Nalpantidis v Stark (1996) 65 SASR 454 at 459; Alvear v Chetwynd Park Pty Ltd [2014] VSC 214 at [20]. Exceptional situations include the taking of evidence or service of process in a foreign country where the law of that place may also be relevant: see Garnett, above n 44, Chs 4 and 8. Also, the question of finality of a foreign judgment, for the purposes of the doctrines of res judicata and issue estoppel, is governed by the law of the country in which the judgment was rendered: see Garnett, above n 44, pp 212–15. (1835) 2 Bing NC 202; 132 ER 80. At 88. (1991) 174 CLR 1. (1993) 176 CLR 433.

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McHugh JJ) held that the South Australia limitation period was procedural, and thus the New South Wales  limitation period as the law of the forum applied to the proceeding. The  majority used the traditional right–remedy distinction, holding that a statute of limitation that time-barred the bringing of a proceeding was remedial.52 In Stevens, an appeal from Queensland, the question was whether a cap on the recovery of damages imposed by the law of New South Wales  was substantive or procedural. There was no such limitation on the common law damages available in Queensland. The same majority (Brennan, Dawson, Toohey and McHugh JJ) held that the New South Wales statute created a procedural law and, therefore, in Stevens, damages were to be assessed at the higher amount available at common law in Queensland. It related only to the manner in which damages were to be quantified. This was considered to be different to the head of damage in respect of which damages were to be calculated, and so procedural.53 7.25  In both McKain and Stevens, the classification of procedural law was conducted analytically. The question was whether, from the forum’s perspective, the interstate law extinguished rights, or merely qualified or withheld a remedy. If, regardless of the effect it had on the outcome of the case for the parties, it merely qualified or withheld remedies, it was procedural. The analysis was not entirely consistent, as the assumption is that the forum court should be entitled to use its own procedures — but in practice it was the interstate or foreign laws that were the only object of classification. Further, issues were decided ad hoc, largely by analogy to related issues and without reference to an authoritative definition of procedure that could confine the limits of the concept. There had long been proposals to approach the classification of issues as substantive or procedural by reference to the purpose or outcome achieved by the rules. Cook had noted the blurred lines between substance and procedure that made an analytical approach to classification problematic, and that it was preferable to classify ‘so as best to carry out our purpose’.54 This favoured a substantive classification — the determination of an issue as procedural only being necessary to prevent the court ‘unduly hindering or inconveniencing itself ’.55

Mode or conduct of court proceedings 7.26  In his dissent in McKain, Mason CJ believed that the defining criterion of a procedural law was that it was directed towards the regulation of court proceedings, and the Chief  Justice did not consider the application of a limitation period to have that quality.56 Indeed, he held that there was no difference in the effect of a limitation period which extinguished a right and one which barred the bringing of a proceeding.57 The operation of both was central to the rights and liabilities of the parties, and directly affected the outcome of the proceeding. Deane and Gaudron JJ adopted the same narrow definition of procedure, but for constitutional reasons.58 In Stevens, the same three judges 52. 53. 54. 55. 56. 57. 58.

(1991) 174 CLR 1 at 44. (1993) 176 CLR 433 at 459. W Cook, ‘Substance and Procedure in the Conflict of Laws’ (1933) 42 Yale Law Journal 333 at 344. Cook, above n 54, at 344. (1991) 174 CLR 1 at 26–7. At 21. At 52.

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continued to take this view of procedural law.59 The approach of Mason CJ in McKain, with a corresponding rejection of the right–remedy distinction, was finally adopted in John Pfeiffer Pty Ltd v Rogerson.60 7.27  Pfeiffer was an appeal from the Australian Capital Territory that involved a workplace accident in New South Wales. Liability was not an issue. However, a New South Wales statute placed a cap on the damages that could be recovered for a workplace injury. The question was therefore whether, from the territory court’s perspective, the New South Wales cap on damages was procedural, and so whether it would allow the territory court to assess damages in accordance with the territory law that placed no limitation on the common law damages available. This question was almost identical to that raised in Stevens, so the territory courts classified the New South Wales  statute as remedial and procedural, and awarded full common law damages. This decision was reversed on appeal to the High Court. 7.28  In Pfeiffer, the joint majority (Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ) noted that the case law on substance and procedure showed that the question was addressed ad hoc: there was no ‘unifying principle’.61 This had also been a theme of the dissenting judgments in McKain and Stevens,62 which provided their Honours with an a priori definition of procedural laws as those ‘which are directed to governing or regulating the mode or conduct of court proceedings’.63 Callinan J developed this principle to conclude that procedure comprises only ‘laws and rules relating to procedures such as the initiation, preparation and prosecution of the case, the recovery processes following any judgment and the rules of evidence’.64 Any other laws were substantive.65 Kirby J adopted the purposive definition given by the Canadian Supreme Court in Tolofson v  Jensen66 that procedure amounted to the rules that ‘will make the machinery of the forum court run smoothly as distinguished from those determinative of the rights of both parties’.67 In practice, there is little to differentiate these three definitions of procedure in Pfeiffer. Had the High Court’s discussion in Pfeiffer been limited to providing a definition of ‘procedure’ then a relatively clear test would have been provided for future decisions. The court, however, also proceeded to define the term ‘substantive’ as ‘matters that affect the existence, extent and enforceability of the rights and duties of the parties to an action’.68 Such a test, in effect, makes a matter substantive depending on whether it influences the outcome in litigation. Outcome determination is a useful criterion but does have the potential to conflict with the mode or conduct of court proceedings test as an issue could, in some cases, satisfy both principles, meaning that it could be both procedural 59. 60. 61. 62. 63. 64. 65. 66. 67. 68.

(1993) 176 CLR 433 at 451, 469. (2000) 203 CLR 503; [2000] HCA 36. At [97]. (1991) 174 CLR 1 at 22–7, 53, 62; (1993) 176 CLR 433 at 445, 469–70. (2000) 203 CLR 503; [2000] HCA 36 at [99]. At [192]. At [192]. [1994] 3 SCR 1022 at 1071–2. (2000) 203 CLR 503; [2000] HCA 36 at [133]. At [99].

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and substantive. It would therefore be desirable in future decisions if Australian courts gave predominant weight to the mode or conduct of proceedings test in making the classification, and only used outcome determination as a secondary principle where the connection between an issue and the conduct of proceedings is slight.69

Cross-vested jurisdiction 7.29  There is one case where, even though the subject matter is classified as procedural, a court need not apply the law of the forum. This arises under the Cross-vesting Acts.70 Where  it appears to a court that it will, or will be likely to, be exercising cross-vested jurisdiction, it can apply any rules of procedure (or evidence) that it considers appropriate, so long as they are rules applied in any superior court in Australia or an external territory.71 Thus the classification of subject matter as procedural in the course of exercising cross-vested jurisdiction does not limit the court to the application of the law of the forum. It  could select a procedural law from elsewhere in Australia that is, given the nature of the proceeding, better adapted to the case. This, though, is unlikely. So far, the courts have been reluctant to rely on the discretion given by this provision to adopt procedural laws that differ from those that would normally be applicable in the forum.72 Normally, it would be expected that a court receiving a transfer of proceedings under the Cross-vesting Acts will apply its own procedural laws.73 Very recently, however, the Western Australian Supreme Court applied the procedural rules of New South Wales to a matter that had been transferred to it from the Supreme Court of New South Wales.74 The relevant New South Wales rule75 (that did not exist in Western Australia) allowed a claimant to add a cause of action that had arisen after the commencement of proceedings. The court felt that it was ‘overwhelmingly in the interests of justice’76 that the New South Wales rule be applied, since it had been assumed throughout the case management of the proceeding that the plaintiff could raise all possible claims, consistent with the New South Wales position.

Particular issues 7.30  Consideration is now given to the treatment of several issues and whether they can be regarded as substantive or procedural according to the test enunciated in John Pfeiffer Pty Ltd v Rogerson. 69. 70. 71.

72. 73. 74. 75. 76.

For a supportive authority, see Julia Farr Services Inc v Hayes (2003) 25 NSWCCR 138; [2003] NSWCA 37. See 2.28–2.36. See Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 11(1)(c); Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) s 11(1)(c); Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 11(1)(c); Jurisdiction of Courts (Cross-vesting) Act (NT) s 11(1)(c); Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld) s 11(1)(c); Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) s 11(1)(c); Jurisdiction of Courts (Cross-vesting) Act 1987 (Tas) s  11(1)(c); Jurisdiction of Courts (Cross-vesting) Act  1987 (Vic) s  11(1)(c); Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) s 11(1)(c). Reidy v  Trustee of Christian Brothers (1994) 12 WAR 583 at 587–8; but cf Marriage of Wilton and Jarvis (1996) 133 FLR 355. BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [227]. Mineralogy Pty Ltd v Sino Iron (No 6) [2017] WASC 340. Civil Procedure Act 2005 (NSW) s 64(3). Mineralogy Pty Ltd v Sino Iron (No 6) [2017] WASC 340 at [139].

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Evidence 7.31  The rules as to the evidence which can be tendered to a court in the forum are pre-eminently a matter for the law of the forum.77 This is likely still to be the case, and in John Pfeiffer Pty Ltd v  Rogerson78 Callinan J explicitly listed the rules of evidence as matters of procedural law. It is only in the most exceptional cases that the courts will not classify questions as to evidence as procedural, as to allow too much deviation from this classification may alter the conduct of the trial. In Alvear v  Chetwynd Park Pty Ltd,79 a provision that precluded a party from having evidence admitted in a proceeding if the evidence had not been disclosed by the party in a pre-filing statement or defence was held to be procedural since it related to the admissibility of evidence. Similarly, the question of what expert evidence a court may order is clearly procedural.80 An extreme example of where matters concerning evidence were treated as procedural is Korner v Witzkowitzer.81 There, a contract was governed by the law of Czechoslovakia. However, in proceedings in England, no evidence as to an oral variation of this contract could be admitted, as the English parol evidence rule prohibited the admission of oral evidence to that effect. Yet the court in Korner also held that had the issue been one of admission of evidence to interpret a contract as opposed to vary it, a substantive classification would have been adopted. The  distinction, however, between variation and interpretation of a contract is dubious given the clear potential to affect outcome in both cases and the limited nexus with court proceedings. A substantive classification of parol evidence is therefore to be preferred.82 7.32  The rules of evidence by which the content of foreign law is proved are discussed in Chapter 9.

Presumptions and burden of proof 7.33  There have been doubts as to the appropriate classification of presumptions. In the common law tradition, presumptions serve a similar role to evidence in that they establish a factual position before the court on which it can make its decision. In Re Cohn,83 Uthwatt J treated a presumption (as to the order in which people died) as substantive, and so determined by the law of the cause.84 This would seem to be more compatible with the principles of John Pfeiffer Pty Ltd v Rogerson.85 While cases on the related question of the burden of proof have generally adopted a procedural characterisation,86 commentators have objected to this conclusion on the basis that the allocation of the burden of proof is often likely to determine the outcome of litigation.87 Again, Pfeiffer may require some rethinking of this classification. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87.

Bain v Whitehaven Railway Co (1850) 3 HLC 1 at 19. (2000) 203 CLR 503 at 574; [2000] HCA 36. [2014] VSC 214 at [29]. Wall v Mutuelle de Poitiers Assurances [2014] EWCA Civ 138. [1950] 2 KB 128. Garnett, above n 44, p 197, citing Filter Solutions Ltd v Donaldson Australia Pty Ltd [2006] NZHC 762. [1945] Ch 5. De Thoren v Attorney-General (1876) 1 App Cas 686; Mahadervan v Mahadervan [1964] P 233. (2000) 203 CLR 503; [2000] HCA 36. The Roberta (1937) 58 Lloyd’s Rep 159; Re Fuld’s Estate (No 3) [1968] P 675. See, for example, A Briggs, The Conflict of Laws, 2nd ed, Clarendon Press, Oxford, 2008, p 234; Garnett, above n 44, pp 198–9.

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7.34

Privilege 7.34  The rules of privilege, in particular legal professional privilege, have traditionally been regarded as forming part of the law of evidence (and so are procedural), as they relate to whether certain material is admissible in litigation.88 Yet privilege can also be seen as having a significant impact on the rights and duties of the parties, by removing key items of evidence from a proceeding. In Kennedy v Wallace,89 the Full Court of the Federal Court, rather paradoxically, referred to privilege as ‘a substantive right’ while at the same time assuming that it was procedural for private international law purposes. The  court softened this conclusion slightly by holding that, for the purposes of the Australian law of privilege, a foreign lawyer is to be treated no differently to an Australian lawyer.90 An arguably more nuanced view, while still applying the law of the forum, was expressed by Brereton J of the New South Wales Supreme Court in Michael Wilson and Partners Ltd v Nicholls.91 The judge there said that matters of discovery and privilege are governed by the law of the forum because they are both ‘part of the local procedure’. Yet, where foreign law obligations of confidentiality are involved, ‘the [Australian] court may limit or even dispense with discovery as a matter of discretion’.92 In this way, the court could be said to apply an ‘enlightened’ version of forum law93 which takes account of foreign interests. Most recently, in Stewart v Australian Crime Commission,94 the Full Court of the Federal Court had to consider whether foreign lawyers could claim legal professional privilege under foreign law to prevent disclosure of documents required under s 29 of the Australian Crime Commission Act 2002 (Cth). A majority of the court held that s 29, which preserves the right to legal professional privilege as a defence to disclosure, included only the Australian law of privilege. Such privilege may extend to local or foreign lawyers, whether the law as to which they were advising was local or foreign and whether the communication occurs in Australia or elsewhere.95 Consequently, as no ‘choice of law question arose’ in the case, the classification of privilege as substantive or procedural did not require determination. It is therefore suggested that the matter remains open in Australian law96 and that an

88. 89. 90. 91. 92. 93. 94. 95. 96.

Davies, Bell and Brereton, above n 7, p 391. (2004) 142 FCR 185; [2004] FCAFC 337 at [199]. At [198]–[204]. (2008) 74 NSWLR 218; [2008] NSWSC 1230. At [11]. Garnett, above n 44, p 236. (2012) 206 FCR 347; [2012] FCAFC 151. At [77] (Jagot and Bromberg JJ). Compare the minority view of Besanko J in Stewart v Australian Crime Commission (2012) 206 FCR 347; [2012] FCAFC 151 at [53], which would have applied the law of the forum to the question of privilege, assuming a choice of law question arose, although, significantly, not because the matter was procedural. Forum law should instead apply, because ‘there are important connecting factors with the forum, namely the production of documents or a request for their production and a claim or assertion of privilege’. See also Re the RBS Rights Issue Litigation [2016] EWHC 3161 (Ch) at [171] where forum law was again applied, although on the basis that privilege forms part of local public policy, in that it involves the striking of a balance between disclosure and protection of information. In Lambert Leasing Inc v QBE Insurance Ltd [2016] NSWCA 254 at [66] it was acknowledged that privilege raises ‘difficult choice of law issues’.

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appropriate choice of law rule for legal professional privilege would be the law of the country in which the lawyer is admitted to practice.97

Statutes of frauds 7.35  Statutes of frauds provide that certain contracts are unenforceable unless they are reduced to writing. Inevitably, these include contracts for the transfer or creation of an interest in land. In Leroux v Brown,98 the contract was one of employment, which would have been enforceable in France even if not in writing. In England, it was subject to the requirement for writing in the statute of frauds. Jervis CJ held that the statute did not affect the existence of the contract, merely its enforceability. For that reason, it was procedural and would be applied in an English court. The opposite approach was, however, taken by the Court of Appeal of Western Australia in Tipperary Developments Pty Ltd v The State of Western Australia.99 Given the clear connection between this issue and the outcome of litigation, and the comparatively slender link to the conduct of court proceedings, a substantive classification is preferable.

Parties to litigation 7.36  The question of whether the claimant or defendant to litigation has legal personality and the capacity to sue or be sued is governed by the law of the entity’s domicile or country of formation.100 A distinct issue is whether an entity, despite having legal personality under its constituent law, can nevertheless be made a party to litigation in the forum. This matter is procedural and governed by the law of the forum.101 The question of whether the claimant or defendant is a proper party to the litigation is substantive and governed by the law of the cause. An example is the right of a claimant to directly sue the tortfeasor’s liability insurer.102 In the case of defendants, a rule that requires that one person (for example, a principal debtor) be sued before another (such as a guarantor) is closely connected with the rights and liabilities of the parties and so is substantive.103 A claimant’s right to pursue a statutory derivative action against a company is also best classified as substantive. This issue is considered more fully below.104 7.37  The right of a person to obtain contribution or indemnity from a tortfeasor is also regarded as substantive and governed by the law of the cause of action.105 Recent civil liability legislation in Australia has introduced proportionate liability for claims for economic loss or property damage. The basis of such liability is that a tortfeasor cannot be held liable for more than his or her proportionate share of responsibility for the harm 97. 98. 99. 100. 101. 102. 103. 104. 105.

J McComish, ‘Foreign Legal Professional Privilege: A New Problem for Australian Private International Law’ (2006) 28 Sydney Law Review 297; Garnett, above n 44, p 242. (1852) 12 CB 801; 138 ER 1119. (2009) 38 WAR 488; [2009] WASCA 126 at [81] (McLure JA, with whom Wheeler and Newnes JJA agreed). Chaff and Hay Acquisition Committee v JA Hemphill & Sons Pty Ltd (1947) 74 CLR 375. Bumper Development Corp v Commissioner of Metropolis [1991] 4 All ER 638. Plozza v South Australian Insurance Co [1963] SASR 122. Subbotovsky v Waung (1968) 72 SR (NSW) 242; cf Johnson Matthey & Wallace Ltd v Ahmad Alloush (1984) 135 NLJ 1012 (Eng CA). See 23.21. Sweedman v Transport Accident Commission (2006) 226 CLR 362; [2006] HCA 8.

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incurred by the claimant, having regard to the relative responsibilities of others for the damage.106 Since the focus of this inquiry is on the ascertainment of the rights and liabilities of the parties, a substantive classification is warranted.107

Remedies 7.38  The remedies that a court may award to a plaintiff who establishes in the forum that they have rights under the law of the cause have generally been determined in accordance with the law of the forum. As a result, the kind of remedy available has usually been regarded as a matter of procedural law. Therefore, even if, for example, an injunction was not available under the law of the cause to enforce rights it had established, the court in the forum could still grant an injunction if that is a remedy available in the forum in analogous circumstances.108 Equally, if the forum court does not have the power to award a remedy available under the law of the cause, that remedy cannot be granted.109 It is unclear whether this position has changed with the adoption of the new definition of procedure in John Pfeiffer Pty Ltd v Rogerson although the High Court did note that a claimant cannot obtain remedies of a kind which the forum cannot provide.110 However, remedies are not peculiarly tied to the mode or conduct of court proceedings, and in many cases are closely related to the kind of claim involved in the proceedings. A possible way of balancing these considerations would be to require that the particular remedy exist under both the law of the forum and the law of the cause of action but then apply the law of the cause to determine whether such relief may be granted on the facts of the case.111

Damages 7.39 Before Pfeiffer,112 questions concerning the recovery of damages were thought to be either substantive or procedural. In general, heads of damage available for different kinds of liability were regarded as substantive,113 whereas questions of quantification were increasingly treated as procedural. That trend was exemplified by the treatment of a ceiling on the recovery of damages in Stevens v Head.114 Although there was no precedent to support the conclusion, the High Court classified the question as one of procedure. Pfeiffer overruled that conclusion.115 As Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ noted: ‘… all questions about the kind of damage, or amount of damages that may be recovered, would likewise be treated as substantive issues.’116 The specific conclusion about damages was a natural consequence of the conclusion that procedural matters 106. 107. 108. 109. 110. 111. 112. 113. 114. 115. 116.

See, for example, Civil Liability Act 2002 (NSW) Pt 4. Garnett, above n 44, pp 127–8. Baschet v London Illustrated Standard Co [1900] 1 Ch 73. Phrantzes v Argenti [1960] 2 QB 19. (2000) 203 CLR 503; [2000] HCA 36 at [99]. Garnett, above n 44, pp 296–7; OJSC TNK-BP Holding v  Lazurenko [2012] EWHC 2781 (Ch) at [11]; Shanghai Electric Group Pty Ltd v PT Merak Energi Indonesia [2010] SGHC 2. (2000) 203 CLR 503; [2000] HCA 36. Boys v Chaplin [1971] AC 356 at 379; Breavington v Godleman (1988) 169 CLR 41. On remoteness of damage, see D’Almeida Araujo Lda v Sir Frederick Baker & Co Ltd [1953] 2 QB 329. (1993) 176 CLR 433. See 7.28. (2000) 203 CLR 503; [2000] HCA 36 at [100].

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concerned the mode or conduct of court proceedings. The quantification of damages is a question that clearly concerns the extent of liability, and so is to be determined by the usual law of the cause. 7.40  The High Court has backtracked a small way from the conclusion in Pfeiffer that all questions of damage are matters of substance. In the foreign tort case of Regie Nationale des Usines Renault SA v Zhang,117 Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ noted their conclusion in Pfeiffer about the classification of ‘… all questions about the kinds of damage, or amount of damages that may be recovered’, and stated: ‘We would reserve for further consideration, as the occasion arises, whether that latter proposition should be applied in cases of foreign tort.’118 That does not follow from the definition of procedure given in Pfeiffer and if, in a foreign tort case, a court were ever to treat a question of quantification as procedural, that would create a genuine exception to the basic principles of substance-procedure classification. Further, it would be an exception crafted only for parochial purposes, and inconsistent with the basis policy of deterring forum shopping in these cases.119 Despite the comment in Renault, in a more recent foreign tort case to have come before the High Court — the Western Australian case of Neilson v Overseas Projects Corp of Victoria Ltd120 — no opportunity was taken to treat the damages available under the foreign Chinese law as procedural. The law of Western Australia was, however, still applied to the question of the assessment of damages on application of the doctrine of renvoi.121 Lower courts in interstate tort cases have consistently classified all questions of damages as substantive122 and in one foreign tort case a court suggested that questions of quantum of damages would likely be governed by the law of the cause of action.123 It is clear, however, that a statutory scheme, in which a claimant’s right to sue in respect of any or all heads of damages is extinguished, is part of the substantive law of the cause of action.124 7.41  Until recently, the English courts maintained the distinction between heads of damage, classified as substantive, and the quantification of damages as matters of procedure.125 117. (2002) 210 CLR 491; [2002] HCA 10. 118. At [76]. 119. Harding v Wealands [2005] 1 All ER 415 at 444 (Eng CA). Note that while this decision was reversed by the House of Lords (see Harding v Wealands [2007] 2 AC 1), the statement arguably remains good law in Australia. 120. (2005) 223 CLR 331; [2005] HCA 54. 121. See 8.21–8.27. 122. CSR Ltd v Thompson (2003) 59 NSWLR 77 at 79–80; Hobson v Queanbeyan Australian Football Club [2003] ACTSC 8 at [22]; Routley v  Bridgestone Australia Ltd [2004] NSWDDT 4 at [20]–[21]; Hoey v  Martin’s Stock Haulage (Scone) Pty Ltd [2003] ACTSC 41 at [44]; Zardo v  Ivancic (2003) 149 ACTR 1 at 2–4; Randwick Labor Club Ltd v Amalgamated Television Services Pty Ltd [2000] NSWSC 906 at [190]; Jackson v TCN Channel 9 Pty Ltd [2002] NSWSC 1229 at [91]; Fuller v K & J Trucks Coffs Harbour Pty Ltd (2006) 67 NSWLR 516 at 525; Lewincamp v ACP Magazines Ltd [2008] ACTSC 69 at [134]; Munsie v Munsie [2012] NSWSC 479 at [16]. 123. McGregor v Potts (2005) 68 NSWLR 109 at [54]. 124. Amaca Pty Ltd v Frost (2006) 67 NSWLR 635; Allen v Depuy International Ltd [2015] EWHC 926 (QB); Wickham Freight Lines Ltd v Ferguson (2013) 83 NSWLR 162. 125. Edmunds v Simmonds [2001] 1 WLR 1003 at 1011; Hulse v Chambers [2002] 1 All ER (Comm) 812; and Alseran v Ministry of Defence [2017] EWHC 3289 (QB) at [873]–[874]. In Canada a similar approach is taken, see Wong v Wei (1999) 65 BCLR (3d) 222; Somers v Fournier (2002) 214 DLR (4th) 611 at [51]; Craig v Allstate Insurance Co of Canada (2002) 214 DLR (4th) 103 at [22]; and Das v George Weston Ltd 2017 ONSC 4129 at [214].

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This approach to the assessment of damages was given the English Court of Appeal’s imprimatur in Roerig v Valiant Trawlers Ltd,126 and in Harding v Wealands127 the House of Lords held that restrictions on the recovery of damages were procedural both at common law and under s  14(3)(b) of the Private International Law (Miscellaneous Provisions) Act 1995 (UK). Consequently, provisions of the Motor Accidents Compensation Act 1999 (NSW), which placed a few limitations on the usual assessment of damages at common law, were held not to be applicable in an English court. However, the implementation in the United Kingdom in 2009 of the Rome II Regulation (Regulation EC 864/2007 of the European Parliament and Council on the Law Applicable to Non-Contractual Obligations) has had the effect of reversing the decision in Harding v  Wealands. Article 15(c) of the Regulation provides that the nature and assessment of damage is a matter governed by the law applicable to the non-contractual obligation.128 In essence, the Australian position in Pfeiffer has therefore been adopted in England. 7.42  Some matters relating to damages, however, remain uncertain under both Australian common law and the Rome II Regulation. In the English Court of Appeal decision in Harding v Wealands,129 Arden LJ held that matters of procedure included questions such as: (1) the opportunity to pay damages by instalments; (2) the ability to claim damages for the same injuries in an action subsequent to the present proceedings; and (3) the conversion of the sum awarded into a foreign currency.130 Some doubt in Australian law might be cast over the classification of the first two by the judgments of a majority of the High Court in BHP Billiton Ltd v Schultz.131 There, Callinan J thought that a tribunal’s ability to make a conclusive, provisional award of damages, although still able to make a subsequent and distinct award of final damages,132 was a matter of substance. Important to this classification was that the power to make a conclusive interim award deprived the defendant of a defence that damages had already been assessed and awarded.133 Gummow, Kirby and Hayne JJ separately agreed with this classification.134 Gleeson CJ and McHugh and Heydon JJ did not think that it was necessary to classify the issue.135 7.43  The question of interest on damages is also not entirely resolved. The right to pre-judgment interest, that is, interest by way of damages dating from the accrual of the cause of action, is clearly substantive and governed by the law of the cause.136 The right to post-judgment interest, that is, interest payable on a judgment debt, is less clear. According to one view, such interest is merely another form of damages and so is substantive, whereas

126. 127. 128. 129. 130. 131. 132. 133. 134. 135. 136.

[2002] 1 WLR 2304. [2007] 2 AC 1. Homawoo v GMF Assurance SA [2010] EWHC 1941 (QB) at [7]. [2005] 1 All ER 415 (reversed on other grounds: [2007] 2 AC 1). At 436–7. (2004) 221 CLR 400; [2004] HCA 61. Under Dust Diseases Tribunal Act 1989 (NSW) s 11A. (2004) 221 CLR 400; [2004] HCA 61 at [226]. At [79], [147], [177]. At [26]. Labuda v Langford [2001] ACTSC 126 at [6]; Somers v Fournier (2002) 214 DLR (4th) 611 at [31].

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an alternative analysis considers such interest as a means by which the court enforces its judgments137 and so is procedural. 7.44  The question of whether benefits already received by a claimant may be deducted from an award of damages is best regarded as substantive and governed by the law of the cause.138 7.45  By contrast, the issue of costs in proceedings is procedural as it concerns court administration.139

Set off 7.46  The doctrine of set-off involves a defendant seeking to deduct a debt owed to it by the claimant from an amount owed by the defendant to the claimant with the debts arising from connected claims. While the older English decisions appear to support a procedural classification of the right to set-off,140 more recently courts have suggested that a substantive view may be taken where the effect of the defendant’s claim to set-off is to discharge or extinguish its liability to the claimant on the original claim.141 In such a situation, the right to set-off would be governed by the law of the claimant’s cause of action (the claim against which the right to set-off is asserted).142

Limitation periods 7.47  Limitation periods provide either that a proceeding cannot be commenced within a stated period from the time it arose, or that a civil right or liability is extinguished within a stated period from the time it arose. In both cases, the right cannot be enforced unless the defendant does not rely on the limitation period as a defence. In McKain v RW Miller & Co (South Australia) Pty Ltd,143 the High Court maintained the traditional difference between limitation periods that apply to the initiation of proceedings, and those that extinguish civil rights and liabilities. The former, which represented the usual form of statutes of limitation, were regarded as merely denying access to the courts to enforce a right, and so were classified as procedural. This was the classification reached for the South Australian statute in McKain.144 The decision was criticised on the basis that the distinction between limitations on the bringing of a proceeding and the existence of a right was, despite its lineage, generally unreal. It also could undermine the policies underlying the law of the cause, insofar as use of a different limitation period to that prescribed by the law of the cause could keep claims alive even when rights created under the law of the cause were not generally meant to be enforced in that place. However, 137. The issue of execution or the means of enforcement of a judgment is procedural: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at [192] (Callinan J). 138. BHP Billiton Ltd v  Schultz (2004) 221 CLR 400; [2004] HCA 61 at [148] (Kirby J), [251] (Callinan J); Cox v Ergo Versicherung AG [2014] 1 AC 1379. 139. Somers v Fournier (2002) 214 DLR (4th) 611 at [20]; Labuda v Langford [2001] ACTSC 126 at [6]. 140. See, for example, Meyer v Dresser (1864) 16 CB (NS) 646. 141. Prekons Insaat Sanayi AS v Rowlands Castle Contracting Group Ltd [2006] EWHC 1367 (Comm) at [12]. 142. See, for a fuller discussion, Garnett, above n 44, pp 308–11. 143. (1991) 174 CLR 1. 144. See also Pedersen v Young (1964) 110 CLR 162 at 166–7; cf Maxwell v Murphy (1957) 96 CLR 261.

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7.49

the primary criticism, especially for interstate conflicts, was that it encouraged forum shopping. As a result, there has been both legislative and judicial reversal of the law as stated in McKain. 7.48  The reforming legislation was introduced in all Australian states and territories and is now uniform.145 The legislation provides that, where the law of the cause applicable to a claim before a court is the law of another state or territory or New Zealand, the limitation period prescribed by the law of that state or territory or New Zealand is to apply to the proceeding. In addition, if that state’s or territory’s or the New Zealand statute of limitations confers a discretion on a court (say, to extend a limitation period), the forum court is also able to exercise that discretion.146 The reforming legislation expressly provides that the discretion must be exercised in the manner in which it is exercised in comparable cases by the courts of the relevant state or territory or New Zealand. So, as in interstate tort cases the law of the cause is that of the place where the tort occurred, a court in the Australian Capital Territory will apply the New South Wales limitation period in any proceeding involving an accident in New South Wales.147 New Zealand  also accords reciprocal treatment to Australian limitation periods.148 7.49 In Pfeiffer, the High Court held that all issues concerning statutes of limitation would be regarded as substantive as they affect the ability to enforce rights and liabilities.149 There was no restriction of this to interstate statutes of limitation, and as the classification rested on the basic definition of procedural law this would equally apply to foreign statutes of limitation. This was confirmed in Regie Nationale des Usines Renault SA v  Zhang.150 The central question in Neilson v Overseas Projects Corp of Victoria Ltd151 was whether a Chinese limitation period was applicable to claims brought in Western Australia. If Chinese law were the law of the cause, there was no doubt that the Chinese limitation period would defeat the plaintiff ’s claim. Since Pfeiffer, lower courts have also consistently treated foreign limitation periods as matters of substance.152

145. See Limitation Act 1985 (ACT) ss 55–57; Choice of Law (Limitation Periods) Act 1993 (NSW); Choice of Law (Limitation Periods) Act 1994 (NT); Choice of Law (Limitation Periods) Act 1996 (Qld); Limitation of Actions Act 1936 (SA) ss 38–38A; Limitation Act 1974 (Tas) ss 32A–32D; Choice of Law (Limitation Periods) Act 1993 (Vic); Choice of Law (Limitation Periods) Act 1994 (WA). 146. See also McKain v RW Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1 at 31. 147. Graeme Mason v  Murray’s Charter Coaches and Travel Services Pty Ltd (1998) 88 FCR 308; [1998] FCA 1430; Brear v James Hardie & Coy Pty Ltd (2000) 50 NSWLR 388 at 396; [2000] NSWCA 352; KBRV Resort Operations Pty Ltd v Chilcott (2001) 51 NSWLR 516 at 518; [2001] NSWCA 116; Pulido v RS Distribution Pty Ltd (2003) 177 FLR 401 at 408; [2003] ACTSC 61. 148. Limitation Act 2010 (NZ) s 55. 149. (2000) 203 CLR 503; [2000] HCA 36 at [100], [132], [193]. 150. (2002) 210 CLR 491; [2002] HCA 10. 151. (2005) 223 CLR 331; [2005] HCA 54. 152. Griffith v Australian Broadcasting Corp [2002] NSWSC 86 at [403]; Dyer v Dyno Nobel Asia Pacific Ltd [2003] NSWSC 213 at [24]–[25]; Dyno Wesfarmers Ltd v Knuckey [2003] NSWCA 375 at [37]; Fullford v Pearson [2004] NSWSC 150 at [5]; Darcy v Medtel Pty Ltd (No 3) [2004] FCA 807 at [17]–[20]; O’Driscoll v J Ray McDermott SA [2006] WASCA 25; HWC v The Corp of the Synod and Diocese of Brisbane (2008) 220 FLR 92; [2008] QSC 212 at [37]; Henry v Commonwealth (2012) 264 FLR 381; [2012] ACTSC 94; Reid v Wright [2012] NSWSC 1149.

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Priorities and rights of creditors 7.50  Questions relating to the administration and distribution of a debtor’s asset fund, including issues of priority between creditors, have traditionally been regarded as procedural and governed by the law of the forum.153 More recently, public policy has been advocated as a preferable basis for application of forum law. Where claims to a fund are governed by multiple applicable laws, it would be ‘incoherent and impossible’ for a system of priorities to be constructed based on the potentially conflicting priorities rules of such different laws.154 By contrast, the nature and existence of the right of a creditor who makes a claim to a fund, such as a maritime lien, is better seen as substantive and governed by the law under which the right is created.155 In The Ship ‘Sam Hawk’ v Reiter Petroleum Inc,156 however, four judges of the Full Court of the Federal Court157 adopted a new two-step test for recognition of foreign maritime liens in Australia. First, the court should determine what rights exist under the applicable law. If foreign law is the applicable law, then this would require the defendant to show that a maritime lien existed under such law. Second, the court must then characterise the right to determine whether it can be described as a ‘maritime lien’ under Australian law. Such an approach has been rightly criticised for making the enforceability of a maritime lien depend upon the forum in which the ship is arrested and so giving insufficient recognition to foreign laws.158

Notice before action provisions 7.51  A statutory provision that requires a claimant to give notice to the other party before commencing proceedings is best classified as procedural, since it is a means to expedite the resolution of claims. A substantive classification should, however, be adopted where the  consequence of non-compliance with a notice provision would result in the extinguishment of the plaintiff ’s claim.159

Rights of appeal 7.52  The definition of procedure adopted in Pfeiffer160 might suggest that rights of appeal are procedural, as they arguably govern or regulate the mode or conduct of court proceedings after determination at first instance. This view was taken by the New South

153. The Halcyon Isle [1981] AC 221, 230–1. 154. The Ship ‘Sam Hawk’ v Reiter Petroleum Inc (2016) 246 FCR 337 at [160] (Allsop CJ and Edelman J) (with whom Kenny, Besanko and Rares JJ agreed on this point). See also, expressing a similar view, Garnett n 44 above, pp 174–5. 155. The Ioannis Daskalelis [1974] SCR 1248; Garnett, above n 44, pp 181–2; Davies, Bell and Brereton, above n 7, p 398; cf The Halcyon Isle [1981] AC 221. 156. (2016) 246 FCR 337 157. Allsop CJ, Edelman, Kenny and Besanko JJ; Rares J dissenting on this point. 158. (2016) 246 FCR 337 at [430] (Rares J); M Douglas, ‘Characterisation of a Foreign Maritime Lien by the Lex Fori’ (2017) 17 Oxford University Commonwealth Law Journal 152; M Hafeez-Baig, ‘A Novel Approach to Foreign Maritime Liens’ (2017) 133 Law Quarterly Review 378. 159. Hamilton v Merck and Co Inc (2006) 66 NSWLR 48; [2006] NSWCA 55. Note the treatment of statutory provisions of the law of the cause that declare an issue to be ‘substantive’: see 7.24. 160. (2000) 203 CLR 503; [2000] HCA 36 at [192].

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Wales  Court of Appeal in Julia Farr Services Inc v  Hayes. However, in BHP Billiton Ltd v  Schultz162 Callinan J thought that some rights of appeal in issue were substantive. His  Honour considered that the limitation of rights of appeal to questions of law, and the exclusion of some rights of appeal entirely,163 was ‘a serious and substantive matter’.164 As noted above,165 however, a conflict between the ‘mode or conduct of court proceedings’ and ‘the rights and liabilities of the parties’ views should generally be resolved in favour of a procedural classification. 161

The identification of the choice of law rule 7.53  Once the subject matter of the proceeding is classified and is not to be treated as a matter of procedural law, the choice of law rule can be identified. This is also a question of law, although even in the 21st century there are choice of law rules applicable to some common classifications that remain uncertain. The most important choice of law rules are discussed in Chapters 13–24.

The application of the law of the cause 7.54  The choice of law rule identifies which jurisdiction is to provide the law that will determine the merits of the proceeding. This is called ‘the law of the cause’ (lex causae) or ‘the governing law’. If choice of law method has been followed closely when addressing a multi-state problem, the court should already know how the law of the cause will determine the proceeding as, when identifying the existence of a conflict of laws, the court had to consider the likely result on application of the internal rules of each of the legal systems that were possibly relevant to the case. One of these would have been the law of the place ultimately selected as the law of the cause.

Which aspects of the law of the cause? 7.55  In ‘The General Part’ of choice of law method, it can be assumed that it is only the internal law of the cause that is applied in the proceeding.166 However, it does appear — and has recently been strongly confirmed — that the common law requires reference to the choice of law rules prescribed by the selected foreign law as well. That raises the complication of renvoi, which will be considered in Chapter 8.167

161. 162. 163. 164. 165. 166. 167.

(2003) 25 NSWCCR 138; [2003] NSWCA 37. (2004) 221 CLR 400; [2004] HCA 61. Dust Diseases Tribunal Act 1989 (NSW) s 32. (2004) 221 CLR 400; [2004] HCA 61 at [247]; see also Kirby J at [148] n 259. See 7.28. See 7.4. See 8.13–8.35.

213

Chapter 8 Choice of Law Method 2: Complications and Exceptions Introduction 8.1  In Chapter 7, ‘The General Part’ of choice of law method was outlined. This described the process by which a court decides whether there is any need to invoke a choice of law rule, how the relevant choice of law rule is identified and, for the most part, how it is applied. It should be emphasised that this is the general method, and that, on occasion, cases arise when the method must be adjusted or supplemented. The choice of law rules themselves create conceptual difficulties, which have potential to complicate the method used in a choice of law case. In addition, there are multi-state cases in which the result suggested by ‘The General Part’ is considered unacceptable and, in its place, the law of the forum applied. The complications of choice of law method to be considered in this chapter are dépeçage, the incidental question, and renvoi. Following that, some of the grounds on which the court is prepared to exclude the application of an unacceptable law of another place are discussed. These are unrecognised states, penal laws, revenue laws, expropriation laws, foreign governmental interests and public policy. The exclusion of foreign laws on the ground of public policy also raises the relevance of a breach of public international law to choice of law method.

Complications of choice of law method Dépeçage 8.2  The word ‘dépeçage’ means ‘to divide’, and in multi-state cases refers to a process by which different issues in the one case might be divided, segregated and determined in accordance with the laws of different places. So, the one case is decided by reference to the laws of two or more places and, accordingly, the result is one that would probably not be required in any one of them. This suggests that dépeçage arises when the court is classifying the subject matter in dispute. The case is found to involve two or more issues that bring relevant laws into conflict and, so, two or more subject matter classifications are made. From there, each classification is dealt with in accordance with different choice of law rules. 8.3  The practical question is whether Australian courts accept the legitimacy of dépeçage. In general terms, there seems to be no reason why, if classification of the subject matter is to focus on the issue in dispute, different issues in dispute might not be subject to different choice of law rules and referred to differing laws of the cause. As Aldous LJ said in Macmillan 215

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Inc v Bishopsgate Investment Trust plc (No 3):1 ‘Any claim … may involve a number of issues which may have to be decided according to different systems of law.’ More specifically, the question of dépeçage has arisen in multi-state contract cases, and the orthodox position in Australia was, in contrast, that dépeçage of the contract should not take place. This was the view expressed by Evatt J in Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society:2 … the whole theory which lies at the root of private international law, however difficult that theory may be in application, is that the law of one country, and one country alone, can be the proper or governing law of the contract.

Evatt J’s claim that this is the ‘whole theory’ on which private international law is constructed is both grandiose and far from the mark. The disproportion to one side, Evatt J’s view means that the law of the cause in a multi-state contract case is the law of one place only, and the contract cannot be subject to dépeçage. However, this approach has been questioned, and it would not be safe to suggest that dépeçage of a contract cannot be accepted. There are cases in which judges have contemplated the possibility of dépeçage, though ultimately concluding that the law of the cause was the law of one place only.3 There  are two English cases that, nevertheless, could be genuine examples of dépeçage: Libyan Arab Foreign Bank v  Banker’s Trust Co4 and Forsikringsaktieselskapet Vesta v Butcher.5 These cases are discussed in Chapter 17. As dépeçage has been more marked in contract cases, extended consideration of the question will be left for that chapter.6

The incidental question 8.4  The incidental question is related to dépeçage. In the one multi-state case, there are two issues to be determined and, if normal choice of law rules are applied, they would be determined in accordance with different choice of law rules. However, the incidental question method becomes relevant where the two issues, though referable to different choice of law rules, are related, in the sense that one must be determined before the other can be as well. Accordingly, the determination of one question is incidental to the determination of the other. The problem is illustrated by Schwebel v Ungar.7 8.5  In Schwebel v Ungar, the respondent, Ungar, was born in Hungary, where she had a domicile of origin. She married twice. The first time was to Waktor, and the marriage took place in Hungary. However, the couple, who were Jews, fled Hungary with the intention of migrating to Israel. En route, when in Italy, the couple divorced in accordance with a Jewish gett ceremony. Each of them independently migrated to Israel, where Ungar acquired a domicile of choice. Subsequently, she visited Canada where she was married the second 1. 2. 3. 4. 5. 6. 7.

[1996] 1 All ER 585 at 614. (1934) 50 CLR 581 at 604. For example, Weckstrom v Hyson [1966] VR 277 at 282–5; Wahbe Tamari & Sons Co v Bernhard Rothfos Beteiligungsgesellschaft mbH [1980] 2 Lloyd’s Rep 553. [1989] QB 728. [1988] 2 All ER 43. See 17.25. Schwebel v Ungar (1963) 42 DLR (2d) 622 (aff ’d (1964) 48 DLR (2d) 644).

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8.9

time, to the appellant, Schwebel. However, Schwebel later applied in the High Court of Ontario for a declaration that the marriage was void, on the ground that Ungar was still married to Waktor at the time of the second marriage. 8.6  There were two issues in the circumstances of Schwebel v Ungar that could give rise to choice of law questions. The main issue, in the sense that it was the ultimate question to be determined, was whether Ungar had the capacity to enter the second marriage. This was a question of the essential validity of the marriage and, accordingly, would be determined by the law of the place where Ungar was domiciled at the time of the second marriage — the law of Israel. However, there was also a preliminary issue. Was the divorce by gett effective? Only if the gett were capable of recognition in Ontario would Ungar have been unmarried, and legally capable of entering the second marriage. It is the treatment of the preliminary issue where the incidental question can arise. 8.7  On the one hand, the court could treat the preliminary issue and the main issue as independent of each other. In this case, each issue should be determined in accordance with the independently applicable choice of law rule. This is the approach taken by McRuer CJ in the High Court of Ontario in Schwebel v Ungar. So, the preliminary issue concerning the recognition of the gett was, at common law, to be determined in accordance with the law of the place where the parties were domiciled at the time of the divorce. For both Ungar and Waktor this was the law of Hungary, under which the gett was not recognised. That being so, the answer to the main question is that, since she was still married to Waktor, Ungar did not have the legal capacity to enter the second marriage and, accordingly, it was void. 8.8  On the other hand, the court could treat the preliminary issue as merely an incident of the main issue, and determine both in accordance with the choice of law rule applicable to the main issue. This is the incidental question approach, and it is the method used by the Ontario Court of Appeal in determining the appeal from McRuer CJ’s decision in Schwebel v Ungar. The main issue as to Ungar’s capacity to enter the second marriage would be determined in accordance with the law of Israel. Under the law of Israel, the gett was recognised and, accordingly, Ungar was considered unmarried and capable of entering the second marriage. The Court of Appeal therefore held that the second marriage was valid. 8.9  It is possible to reconfigure the above analysis of McRuer CJ’s decision.8 Arguably, the decision did not involve an independent application of the choice of law rule for each issue. For, once the preliminary issue of the recognition of the gett was resolved against its being recognised, the main issue of capacity to marry was determined without reference to its own choice of law rule. In other words, the real point to be resolved where the issues are related is which issue is to have priority over which. Is, as McRuer CJ decided, the preliminary issue to be decided by reference to its conflicts rules first? Or, as the Court of Appeal decided, is the main issue to be decided by reference to its conflicts rules? Of course, the outcome in Schwebel v Ungar suggests that, where there are two related issues to be determined in a multi-state case, both issues should be determined in accordance with the choice of law rule applicable to the main question. The incidental question is therefore determined in accordance with the law of the cause for the main question. 8.

See 8.7.

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8.10  A more direct approach to Schwebel v  Ungar was taken in a recent critique of the decision.9 Fassberg’s view of the decision is that it deals with only one issue: capacity to marry. This is governed by the law of the parties’ domicile, the only question being, the parties’ domicile at what point? McRuer CJ took this to be the parties’ domicile at the time of the gett, where the Court of Appeal took it to mean their domicile at the time the second marriage was solemnised. Fassberg’s suggestion, consistent with the result (though not the reasoning) in Schwebel v Ungar, is that the question of capacity should be referred to the parties’ domicile at the time the proceedings are brought. After all, the point of interest in the litigation is the person’s status ‘today’.10 However, this is unlikely to be suitable in marriage cases where it will be important to know whether, at the time of the solemnities, the parties have capacity to marry. Fassberg’s analysis, nevertheless, still requires an ordering of the two issues in the case as preliminary and main issues, but with a focus exclusively on the main issue. 8.11  It is likely that the incidental question approach is the law in Australia. Haque v Haque (No 1)11 involved succession to both movable and immovable property, although the incidental question only arose in respect of the movables. The testator, Abdul Haque, was a Muslim, born domiciled in India. In 1925 he married Kulsum Bibi, and in 1927 migrated to Western Australia. In 1955, the testator married a second wife, Azra Bux, in Fremantle. This marriage was actually polygamous, and so not recognised in Western Australia. However, it was considered valid under Islamic law, which was the recognised personal law for Muslims in India. The testator signed a pre-nuptial agreement with Azra before the second marriage, by which he agreed to recognise that any children of the second marriage would be legitimate and also to recognise any entitlements those children would have to inherit his property as his legitimate children under Islamic law — even if he made a will to the contrary. He did make a will to the contrary, all his property being left to his brother, Nural Haque. The first wife, Kulsum, and all the testator’s children claimed that they were entitled to share in the testator’s property in accordance with Islamic law. In the case of the children of the second marriage, this claim mainly rested on the pre-nuptial agreement. The High Court held that the disposition of the testator’s movable property was to be determined in accordance with the law of the place where he was domiciled at the time of his death: India. The law of India recognised Islamic law as the testator’s personal law, and therefore that the children of the second marriage were entitled to share in the movable property. 8.12  There were two questions in Haque (No 1) that had potential to raise choice of law issues. The main question was whether the children of the second marriage were entitled to share in the testator’s movable property. This would be governed by the law of the place where the testator was domiciled at the time of his death, which was Indian or Islamic law. Islamic law recognised that legitimate children had rights in the testator’s property, even if he made a will to the contrary. The preliminary question was whether the children of the 9. 10.

11.

C W Fassberg, ‘On Time and Place in Choice of Law for Property’ (2002) 51 International and Comparative Law Quarterly 385. Fassberg, above n 9, at 396–7. Fassberg argues, however, that where status is to be determined by the law of the forum, the courts should be able to refer to domicile at the time of the divorce. The argument in favour of domicile at the time of the proceedings only applies where a person’s status is referable to a foreign law. (1962) 108 CLR 230.

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second marriage were legitimate. Under the law of Western Australia, the children would have been considered illegitimate, as the second marriage would not have been recognised. The High Court held that the children were to be considered legitimate, ‘whatever the law of Western Australia might say’.12 The court did not expressly address the issue whether the preliminary issue should be treated independently of the main issue, or as an incident of the main issue. However, by determining the preliminary question of legitimacy in accordance with the Islamic law that governed the main issue, the court’s result in Haque (No 1) is consistent with the incidental question method.

Renvoi The nature of the problem 8.13  The term ‘renvoi’ means ‘remit’, or ‘send back’. To understand the problem, it is important to bear in mind the distinction between internal (or dispositive) rules and choice of law (or indicative) rules.13 It is probably best to explain the specific problem of renvoi in private international law by example. In Collier v Rivaz,14 the testator, Ryan, was born in Ireland. For most of his life Ryan lived in England, but he moved to Belgium in 1802 where he died in 1829. He left a will and six codicils. Four of the codicils dealing with movable property were valid under English law, but invalid under Belgian law. In both England and Belgium, questions of testate succession to movable property were determined by the law of the place where the deceased was domiciled at the time of his death. However, under English private international law, Ryan was regarded as domiciled in Belgium at the time of his death, even though he was a British subject. Under Belgian law, the concept of domicile was more like nationality, and Ryan was deemed to be domiciled in England at his death. Sir Herbert Jenner in the Prerogative Court of the Archbishop of Canterbury had to determine the validity of the codicils. The private international law of England required this to be determined by the law of Belgium, but the private international law of Belgium required the question to be determined by the law of England.

Remission and transmission 8.14  Collier v  Rivaz illustrates one (and the more common) form of the problem of renvoi: remission. The choice of law rules of the forum require the matter to be determined in accordance with the law of another place (say, Ruritania), whereas the choice of law rules of Ruritania require the matter to be determined in accordance with the law of the forum. So, the law of the forum refers the question to the law of Ruritania, and the law of Ruritania remits the matter to the law of the forum. In a case of remission, the question is whether the forum court is to apply the law of Ruritania or the law of the forum. 8.15  The other form of renvoi is transmission.15 For example, if in Collier v  Rivaz the private international law of Belgium had required a question of succession to movables 12. 13. 14. 15.

At 248. See 7.4. (1841) 2 Curt 855; 163 ER 608. See Note (1898) 14 Law Quarterly Review 231 at 232.

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to be determined by the law of the place where the testator was born, it would decide the case by reference to a third legal system: the law of Ireland. So, in a case of transmission the forum court would, by the choice of law rules of the forum, refer the question to the law of Ruritania, only to learn that the choice of law rules of Ruritania transmit the question to the law of yet another place (say, Hentzau). The question in a case of transmission is whether the forum court is to apply the law of Ruritania or of Hentzau, or of the forum. 8.16  The problem of renvoi is often presented as a ‘dialogue’ between courts. The forum refers the question to Ruritania, which remits the question to the forum or transmits it to Hentzau. However, that is a conceptual convenience. There is no actual dialogue between the courts of the various countries. The reference and remission or transmission take place entirely within the mind of the forum judge, and the whole exercise is one by reference to the forum’s choice of law rules and the forum’s means of dealing with the problem of renvoi.16

A conflict of conflicts rules 8.17  Both remission and transmission arise because there is a conflict of conflicts rules. The choice of law rules in the forum and Ruritania differ, initially identifying as the law of the cause the laws of different places. The problem of renvoi therefore arises when the court is applying the law of the cause (as initially selected), the question being which part of the law of the cause is first to be applied. Often, the problem of renvoi is said to arise because the forum’s choice of law rules choose the whole of the law of the cause — its internal rules and its choice of law rules. The majority in the High Court in Neilson v Overseas Projects Corp of Victoria Ltd cast the problem in this way: that is, as emerging from the choice of law rule’s selection of the whole of the law of the cause.17 However, this plainly does not happen, as internal rules and choice of law rules are, in significant respects, exclusive of each other. Whether or not renvoi occurs therefore depends on whether the forum’s choice of law rules select, in the first instance, the internal rules of the law of the cause or, instead, the choice of law rules of the law of the cause.18 Thus, in a case of (potential) remission, the forum court could apply the internal rules of Ruritania only. As it would not ‘see’ Ruritania’s choice of law rules (by which Ruritanian law would deal with the case in accordance with the law of the forum), no renvoi occurs. However, if the forum court’s choice of law rules select, in the first instance, the choice of law rules of Ruritania, then the remission to the law of the forum occurs and the forum court must have some means of dealing with the problem of renvoi. There are at least two general approaches to the problem: ignoring the renvoi, or recognising it. If the problem is recognised, there are at least four more specific ways of dealing with it.19

16. 17. 18.

19.

See Neilson v Overseas Projects Corp of Victoria Ltd (2005) 223 CLR 331 at 365; [2005] HCA 54. (2005) 223 CLR 331 at 367, 369, 388, 418–19; [2005] HCA 54. E H Abbot, ‘Is Renvoi a Part of the Common Law?’ (1908) 24 Law Quarterly Review 133 at 135–6; T A Cowan, ‘Renvoi Does Not Involve a Logical Fallacy’ (1938) 87 University of Pennsylvania Law Review 34 at 39–40. See, generally, the classifications in E Griswold, ‘Renvoi Revisited’ (1938) 51 Harvard Law Review 1165 at 1167–70.

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Ignoring the renvoi 8.18  The forum court could interpret the reference to the law of Ruritania as a reference to the internal law of Ruritania only. Confronted with the same multi-state case, Ruritanian law might deal with the question in accordance with the law of the forum, or the law of a third place, Hentzau. However, as the forum’s choice of law rules are not permitted to ‘pick up’ the choice of law rules of Ruritania, it disregards the potential remission to the law of the forum or transmission to the law of Hentzau. Ignoring the renvoi therefore means that the forum court may decide the case differently to the way that a Ruritanian court would decide it.

Recognising the renvoi 8.19  The forum court could interpret the reference to the law of Ruritania by the forum’s choice of law rules as a reference, in the first instance, to the choice of law rules of Ruritania. Accordingly, if the Ruritanian choice of law rule requires the question to be determined in accordance with the law of the forum, the forum court must recognise the remission. If the Ruritanian choice of law rule requires the question to be determined by the law of Hentzau, the forum court must recognise the transmission. However, the forum’s recognition of the remission or transmission could be dealt with in accordance with at least four different theories: • The désistement theory: The forum court recognises that the law of Ruritania either remits the question to the law of the forum or transmits the question to the law of Hentzau. The forum court therefore concludes that the law of Ruritania does not, in its own terms, intend that it apply its own law to the question. So, the court in the forum assumes that its choice of law method has not identified a possibly applicable law of the cause. That being so, the forum’s choice of law rules have failed, and so the forum abandons its choice of law method. It applies the law of the forum by default.20 • ‘Accepting the renvoi’ or single renvoi: The forum court ‘refers’ the question to the Ruritanian choice of law rules. If the law of Ruritania remits the question to the law of the forum, the forum court accepts that remission and applies the law of the forum as the law of the cause. That is the result that the law of Ruritania intended. This is how Sir Herbert Jenner decided Collier v Rivaz.21 His Lordship applied the English choice of law rule that the question of the validity of the codicils be determined by the law of Belgium. Then, Sir Herbert accepted the Belgian choice of law rule remitting the same question to the law of England. At that point, he refused to apply the English choice of law rule again. The internal law of England was applied, and the codicils were held to be valid.22 However, the theory of single renvoi has a different result in a case of a transmission. If the Ruritanian choice of law rule transmits the question to the law of Hentzau, the forum court accepts Ruritania’s transmission and applies the internal law of Hentzau as the law of the cause. 20. 21. 22.

Griswold, above n 19, at 1168; E O Schreiber, ‘The Doctrine of Renvoi in Anglo-American Law’ (1918) 31 Harvard Law Review 523 at 529–33. (1841) 2 Curt 855; 163 ER 608; see also 8.14. See also Casdagli v Casdagli [1918] P 89 at 111; Nolan v Borger 203 NE 2d 274 (1963).

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• ‘Rejecting the renvoi’: The forum’s choice of law rules refer the question to Ruritania’s choice of law rules. If Ruritanian law remits the question to the law of the forum, the court in the forum rejects that remission and applies the law of Ruritania as the law of the cause. If the law of Ruritania transmits the question to the law of Hentzau, the forum court rejects Ruritania’s transmission and, again, applies the law of Ruritania as the law of the cause. The result is the same as when ignoring the renvoi, with the formal difference that the foreign choice of law rule is recognised, although not applied. • The foreign court theory or double renvoi: In accordance with its own choice of law rules, the forum court refers the question to the law of Ruritania. It then identifies how a court in Ruritania would decide the case, after the court in Ruritania had applied Ruritania’s solution to the problem of renvoi. So, the theory of double renvoi is not in itself an immediate solution to the problem of renvoi. It adopts whatever solution to renvoi the courts in Ruritania had adopted. This approach therefore emphasises consistency in outcome with the foreign court, and therefore discourages forum shopping.23 Effectively, it adopts the result in the case that the Ruritanian court will have reached, having applied its own choice of law rule, and its particular solution to the problem of renvoi — whether that be ignoring the renvoi, the désistement theory, or accepting or rejecting the renvoi.

When is renvoi used? 8.20  The traditional position of the common law was that the doctrine of renvoi was generally not recognised in choice of law cases. As a consequence, in most multi-state cases in which the use of choice of law rules was triggered, the court would ignore any potential renvoi. In Australia at least, this position must be open to serious doubt. In Neilson v Overseas Projects Corp of Victoria Ltd,24 the High Court was prepared to adopt the doctrine of renvoi in a foreign tort case, even though the limited authority that was previously available on point was to the effect that renvoi was inapplicable in tort cases.25 While in Neilson Gummow, Hayne and Kirby JJ said that they were not prescribing a standard approach to renvoi in all choice of law cases that might be heard in Australian courts,26 aspects of the decision suggest that the question of renvoi might now be open in areas of choice of law that, beforehand, were closed to it. In particular, the High Court’s conclusion that, in its reference to a foreign law, the choice of law rule for tort was taken to be selecting the whole of the foreign law,27 effectively meant that it selected the foreign choice of law rule in preference to the foreign internal laws. There was nothing in this conclusion that was peculiar to the law of tort, with the consequence that the same reasoning might be equally applicable in other areas of choice of law. Further, the rationale of the court in Neilson for adopting the theory of double renvoi was to ensure that the Australian court reached the same result as the relevant foreign court would.28 Again, there is nothing in this policy that is peculiar to the law of tort, and the 23. 24. 25. 26. 27. 28.

See 1.28–1.30. (2005) 223 CLR 331; [2005] HCA 54. McElroy v McAllister 1949 SC 110 at 126. (2005) 223 CLR 331 at 366, 388; [2005] HCA 54. At 367, 369, 387, 418–19. At 342, 364, 392–3, 418–19.

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8.21

same argument could be easily raised in other areas of the law. Even before Neilson, the doctrine of renvoi was accepted in cases involving marriage validity (even when dependent on the recognition of a decree of divorce or annulment), legitimation29 and succession to property on death.30 While the matter has not been conclusively resolved, the balance of recent English authority rejects the application of the doctrine to the issue of transfer of title to chattels.31 Since Neilson, the Western Australian Court of Appeal, accepting that the reasoning of Neilson did not limit renvoi to tort cases, recognised that the doctrine is available in multi-state contract cases, at least where the parties have made no express choice of law in their contract and the court is required to select the applicable law.32 Where, however, the parties have made an express choice of foreign law, it has been argued that the doctrine of renvoi should not apply as the parties would more likely have intended that the domestic law of the foreign country govern their rights and obligations under the contract in this situation.33 The broad rationale for the use of renvoi in Neilson, therefore, suggests that the doctrine could be available for use in any area of law for which statute does not forbid it.34

Double renvoi in Australian law Tort cases 8.21  The doctrine of double renvoi has been adopted by the High Court for use in multi-state tort cases. Given that the choice of law rule for torts is uniform across the Australian states and territories, the problem of renvoi is not as likely to arise in interstate tort cases.35 In the landmark case of Neilson v Overseas Projects Corp of Victoria Ltd,36 the plaintiff, an Australian citizen, was a long-term resident of, and domiciled in, Western Australia. In  the early 1990s, the plaintiff ’s husband was employed to work in the People’s Republic of China for the defendant company. The defendant was a Victorian Government-owned corporation, registered in Victoria. Its insurer was incorporated in New South Wales. The husband’s contract entitled him to an apartment in Wuhan, China, and for the plaintiff to accompany him to China. In October 1991, the plaintiff was injured 29. 30. 31.

32. 33. 34. 35. 36.

Re Askew [1930] 2 Ch 259. Re Ross [1930] 1 Ch 377. Macmillan Inc v  Bishopsgate Investment Trust plc (No 3) [1995] 1 WLR 978; Islamic Republic of Iran v  Berend [2007] EWHC 132; Blue Sky One Ltd v  Mahan Air [2010] EWHC 631 (Comm); cf Glencore International AG v Metro Trading Inc [2001] 1 Lloyd’s Rep 284; and The ‘WD Fairway’ [2009] 2 Lloyd’s Rep 191; see 21.17. O’Driscoll v J Ray McDermott SA [2006] WASCA 25 at [12], [59]–[60]. M Davies, A Bell and P Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, 2014, p 366; Proactive Building Solutions v Keck [2013] NSWSC 1500 at [27]–[30]. R Mortensen, ‘ “Troublesome and Obscure”: The Renewal of Renvoi in Australia’ (2006) 2 Journal of Private International Law 1 at 23; see 22.37. Note especially in the area of defamation where uniform legislation now applies in all states and territories; see 18.18. (2005) 223 CLR 331; [2005] HCA 54. For critiques of the decision, see Mortensen, above n 34; A Dickinson, ‘Renvoi: The Comeback Kid’ (2006) 122 Law Quarterly Review 183; A Mills, ‘Renvoi and Proof of Foreign Law in Australia’ [2006] Cambridge Law Journal 37; M Keyes, ‘Foreign Law in Australian Courts: Neilson v Overseas Projects Corporation of Victoria Ltd’ (2007) 15 Torts Law Journal 9; R Garnett, ‘The Dominance of Uniformity of Outcome in Australian Choice of Law: Is it Time to Relax the Grip?’ (2013) 37 Australian Bar Review 192 at 206–10.

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when she fell over the edge of the staircase in the flat. She was initially hospitalised in China, but on medical advice returned to Australia after her discharge from hospital. In June 1997, the plaintiff brought claims in the Supreme Court of Western Australia in contract and tort for occupier’s liability. The parties agreed that, if the claims were brought within the limitation period, the plaintiff was entitled to damages of $300,000. Accordingly, the only question to decide in Neilson was whether the claims — brought just less than six years after the accident — were time-barred. The Western Australia limitation period was six years and so, by the law of the forum, the claim would be within time. However, the Australian choice of law rule for torts required all matters of substance (including the question of limitation) to be determined by the law of the place where the tort occurred. This was China, and by Chinese law a one-year limitation period was applicable to claims relating to personal injuries. Under ‘special circumstances’ a court could extend this. It was therefore important to the plaintiff that she establish that Western Australian law governed the question of limitation. 8.22  The Chinese choice of law rule, like the Australian, generally required the question to be governed by the law of the place where the delict occurred. However, unlike the Australian choice of law rule, it also had an exception that stated that, if the parties had a common nationality or domicile, the court ‘may’ apply the law of nationality (the lex patriae) or the law of the place of domicile (the lex domicilii). A difficult question in Neilson was whether the plaintiff had adequately established the effect of the exception to the Chinese choice of law rule and whether, in the circumstances of Neilson, Australian law as the law of the common nationality would be applied by a Chinese court.37 For the present, it is sufficient to note that a majority in the High Court (Gleeson CJ and Gummow, Hayne, Callinan and Heydon JJ) accepted that there was enough available to the court to show that the Chinese choice of law rule would lead to the application of Western Australian law. The question then became whether the Chinese choice of law rule would be recognised by the Australian forum, and applied. 8.23  At first instance in Neilson, McKechnie J dismissed the claim in contract but allowed the claim in tort.38 If Chinese law applied, his Honour considered that there were ‘special circumstances’ for an extension of the one-year limitation period. However, McKechnie J also held that the Chinese choice of law rule gave him a discretion to apply Australian law, which he did ‘because both parties are nationals of Australia’.39 Although he made no mention of the doctrine, in this connection McKechnie J was recognising the doctrine of renvoi and applying the theory of single renvoi. The insurer appealed to the Full Court of the Supreme Court,40 which did see  the renvoi. McLure J (with whom Johnson J and Wallwork AJ  agreed)41 disagreed with both of the critical conclusions in McKechnie J’s judgment. There were no ‘special circumstances’ to justify an extension of the Chinese limitation period,42 and the doctrine of renvoi had no application in tort cases.43 An appeal 37. 38. 39. 40. 41. 42. 43.

See 9.6–9.7. [2002] WASC 231. At [199]–[208]. Mercantile Mutual Insurance (Australia) Ltd v Neilson (2004) 28 WAR 206; [2004] WASCA 60. At 222. At 220. At 214, 216.

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8.26

was therefore taken to the High Court, which decided that the claims in tort were governed by the Western Australian limitation period. 8.24  In Neilson, a majority comprising Gleeson CJ and Gummow, Hayne, Kirby and Heydon JJ accepted the doctrine of double renvoi for tort cases. Therefore, once the forum’s choice of law rule pointed to the application of a foreign law, Gummow and Hayne JJ thought that ‘basic considerations of justice require that, as far as possible, the rights and obligations of the parties should be the same whether the dispute is litigated in the courts of that foreign jurisdiction or is determined in the Australian forum’.44 Gleeson CJ and Kirby and Heydon JJ made similar observations about the need, under the method of Australian choice of tort law, to adopt the result that it seemed that the foreign court would reach in the same case.45 In doing so, the local judge had to be scrupulous in matching the assumed decision of the foreign court. At first instance, something like this had been tried in McKechnie J’s decision to extend the Chinese limitation period. However, the judge’s mistake, according to the High Court, had been ‘to step in the shoes of a foreign judge, exercising that judge’s powers as if sitting in the foreign court’.46 The identification with the approach, it was assumed, that the foreign court would take was not precise enough for the High Court. As Kirby J put it, the role of the Western Australian judge ‘was to ascertain, according to the evidence or other available sources, how the foreign court itself would have resolved the substantive rights of the parties in an hypothetical trial conducted before it’.47 8.25  Of course, to adopt the result that the evidence showed that a Chinese court would reach, it was necessary to know how the Chinese court, applying Australian law, would deal with the Australian choice of law rule that required application of Chinese law in a tort case where the accident occurred in China. There was simply no evidence as to whether a Chinese court would ignore or recognise the renvoi. But the majority accepted that the court was free to use Australian principles to interpret the Chinese choice of law rules. In doing so, the majority (Gleeson CJ and Gummow, Hayne and Heydon JJ) concluded that the Chinese court would ignore the renvoi,48 and apply the internal law of Western Australia to the claim. This included the Western Australian limitation period, so the claim was within time. 8.26  Unlike the other judges of the majority in Neilson, Callinan J preferred to accept the renvoi: ‘[T]he right course to adopt here is for the Australian courts to accept the (likely) Chinese reference to Australian law in accordance with the practice of most jurisdictions’.49 The plain rationale for Callinan J’s adoption of the theory of single renvoi was the priority it gave to application of the law of the forum: … [I]f the evidence shows that the foreign court would be likely to apply Australian law by reason of its choice of law rules or discretions, then the Australian common law of torts should govern the action. This is a solution which offers finality, and limits the need to search for and apply foreign law.50 44. 45. 46. 47. 48. 49. 50.

(2005) 223 CLR 331 at 363; [2005] HCA 54. At 342, 389, 392–3, 393, 418–19. At 392. See also at 342, 369, 409, 419. At 392–3. At 341–2, 373–4, 420. At 414. At 415.

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It therefore appears that Callinan J may not have endorsed the use of single renvoi in a case of a transmission, at least if the third jurisdiction were not another Australian state or territory. The only judge in Neilson who believed it best not to allow the problem of renvoi at all was McHugh J. In dissent, McHugh J held that the plaintiff had not managed to prove the content of the Chinese choice of law rule. However, his Honour would not have given effect to any foreign choice of law rule had it been proved by evidence placed before the court. The reference to Chinese law was therefore a reference to the internal law of China, and, accordingly, McHugh J believed that the claim was out of time.51 8.27  Neilson is a strong decision in favour of the doctrine of renvoi and, as has been noted,52 may have implications beyond choice of law in tort. There are a number of factors at issue in the case that could suggest that the decision is an instance of forum preference. These include the approach taken, despite a distinct lack of supporting evidence, to establish that the Chinese choice of law rule did require application of the law of Western Australia;53 the need also to couple this with the doctrine of renvoi if Western Australian law were to apply; and the assumption, again without any evidence, that the ‘national law’ was Western Australian even though there is no state-based nationality and the defendant was a Victorian company. As there are no exceptions to the choice of law rule in tort that would otherwise allow application of the law of the forum,54 renvoi would possibly be the only means of securing its application in a foreign tort case. In Callinan J’s judgment, the forum orientation of the decision is explicit.55 At the same time, though, the only real policy justification that the High Court gave for the adoption of double renvoi was decisional harmony: the objective of securing the one result, regardless of whether the matter had been litigated in China or Western Australia.56 As Heydon J said: ‘This Court has seen it as undesirable that “the existence, extent and enforceability of liability [should vary] according to the number of forums to which the plaintiff may resort” .’57 This policy rationale might be more compelling if there were not significant doubts about the way that the High Court satisfied itself, without evidence, that a Chinese court would apply Western Australian law.58 Succession on death 8.28  In Re Annesley; Davidson v Annesley,59 the testatrix died in France in 1924, leaving a will disposing of her movable property. She was a British subject, but domiciled at the time of her death in France. Under the internal law of England (which was assumed to be the law applicable to a British subject) the testatrix’s will was valid. Under the internal law of France, only one-third of the estate could be dealt with by will. The other two-thirds 51. 52. 53. 54. 55. 56. 57. 58. 59.

At 356. See 8.20. See 9.6–9.7. Other than where a matter is classified as procedural or would infringe local public policy; see 18.24–18.28. (2005) 223 CLR 331 at 415; [2005] HCA 54. At 342, 363. At 419. See 9.6–9.7. [1926] Ch 692.

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8.30

had to be distributed amongst the testatrix’s children. Under English choice of law rules, a question of succession to movables was to be determined in accordance with the law of the place where the deceased was domiciled at the time of death: that is, the law of France. Under French choice of law rules, the question was to be determined by the law of the place where the deceased was a national at the time of death — presumed to be the law of England. In the High Court of Justice in England, Russell J identified a remission. English choice of law rules required the case to be determined in accordance with the law of France, but the French choice of law rules required the case to be determined in accordance with the law of England. However, the theory of double renvoi required Russell J to determine how a French court would decide the case. The evidence suggested that the Cour de cassation in France would, if confronted with the problem of renvoi, adopt the theory of single renvoi. So, a court in France would refer the question to the law of England and note that the law of England would remit it to the law of France. That being so, the court in France would accept the remission and apply the internal law of France. By the theory of double renvoi, Russell J had to adopt the decision the French court would reach. Thus, he applied the law of France to the question, and only one-third of the estate could be dealt with by will. 8.29  In Annesley, therefore, the court in England adopted the result that would have been reached by a court in France. It did not apply the theory of single renvoi as that theory would be applied by a court in England. The theory of double renvoi required the court in England to apply the theory of single renvoi as that would be applied by a court in France. The same method was adopted in Re Ross; Ross v Waterfield,60 but with a different result. There, the testatrix also died a British subject, but domiciled in Italy. Under her will, she had cut her son from her estate. This was effective under the law of England, which was again assumed to be the law of the place where she was a national at the time of her death. However, under the law of Italy the son was entitled to one-half of all property in Italy and one-half of all movable property located elsewhere. The English choice of law rule again required a question of succession to movables to be determined in accordance with the law of the place where the deceased was domiciled at the time of death — the law of Italy. The Italian choice of law rule provided for the question to be determined by the law of the place where the deceased was a national at the time of death, which was presumed to be the law of England. Luxmoore J noted that the problem of renvoi arose: he, as an English judge, referring the question to the law of Italy and the law of Italy remitting the question to the law of England. The theory of double renvoi then required him to adopt the decision that a court in Italy would reach, which therefore meant he had to determine how the problem of renvoi would be dealt with in Italy. It appeared that an Italian court would reject the renvoi. Therefore, on referring the question to the law of England and finding that it remitted the question to the law of Italy, an Italian court would reject the remission and apply English law. Luxmoore J accordingly applied English law, and held that the son had no entitlement to his mother’s estate. 8.30  The results in Annesley and Ross differ, because (as it appeared on the evidence) the problem of renvoi was solved in different ways in France and Italy. However, the judges 60.

[1930] 1 Ch 377.

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in both cases used the theory of double renvoi consistently, adopting the decision that, on the evidence, it appeared the relevant foreign court would make. This again illustrates the primary policy rationale of the theory of double renvoi that was so influential in Neilson v Overseas Projects Corp of Victoria Ltd.61 If the assessment of the foreign court’s approach to the case is accurately established by the evidence, it necessarily delivers decisional harmony. It requires the decision that would be reached in the foreign place to be made in the courts of the forum. So, whether the case is adjudged in the forum or foreign court, the result will be the same. Nevertheless, the theory of double renvoi also brings its own considerable conceptual problems.

Shortcomings of double renvoi62 8.31  The theory of double renvoi is not a direct solution to the problem of renvoi. Indeed, it assumes that the common law either cannot or should not deal with remission or transmission directly, and must ride on the solution reached by courts in the other place. Ironically, having itself abdicated responsibility for directly solving the problem of renvoi, the common law court then assumes that the courts in the other territory have formulated some reasonable, direct solution to the problem. Unsurprisingly, that is not necessarily the case. In Re Duke of Wellington,63 a remission arose, again in a succession case, between the laws of England and Spain. Wynn-Parry J therefore applied the theory of double renvoi, by which he had to determine how a court in Spain would deal with a remission. However, eminent Spanish jurists had given conflicting evidence on how a court in Spain would deal with the problem of renvoi. The truth was that the law of Spain did not have a settled answer to the problem. Still, the theory of double renvoi required Wynn-Parry J to assume that the law of Spain did have a solution. He, an English judge, therefore had to sift the Spanish legal sources to determine how a court in Spain would deal directly with a remission. This was even though the theory of double renvoi denied him the right to consider English legal sources in developing a direct solution to renvoi. Concluding that the law of Spain would reject a remission from the law of England, Wynn-Parry J held that a court in Spain would apply the internal law of England to the case and did likewise. Slightly different needs arose in Neilson,64 where there was no evidence as to how the foreign Chinese law would deal with the problem of renvoi. Gummow and Hayne JJ merely noted that there was no evidence that the Chinese choice of law rule would make any reference to the forum’s choice of law rules.65 Gleeson CJ and Heydon J thought that the use of the word ‘applied’ in the English translation of the Chinese choice of law rule suggested that a Chinese court would ignore the renvoi.66 The process is artificial — this was an Australian construction placed on an unofficial translation of the Chinese law, with no warrant that it would give anything akin to the Chinese choice of law rule as understood in any Chinese court. However, it is an artificial task that is directed by the imperatives of the doctrine of double renvoi. 61. 62. 63. 64. 65. 66.

(2005) 223 CLR 331; [2005] HCA 54; see also 8.21–8.27. Mortensen, above n 34, at 12–22; Garnett, above n 36, at 206–10. [1947] Ch 506. (2005) 223 CLR 331; [2005] HCA 54; see also 8.21–8.27. (2005) 223 CLR 331 at 373; [2005] HCA 54. At 342, 420.

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8.32  The theory of double renvoi also assumes that the conclusion the court in the forum would reach is the result that is dictated by the law of the foreign country. As has been seen with Neilson,67 there may be significant difficulties with the evidence on the relevant foreign law so that, in an objective sense, it is also difficult to have any confidence that the legal scenario accepted by the court as representing the foreign law has any close symmetry to the true position of the foreign law. Further, cases involving a remission or transmission on the basis of nationality have shown that the result is often one reached by adjusting the law of the foreign place by the principles of the law of the forum. This has long been a problem in the common law world, where in cases of, for example, tort or succession, ‘plurilegislative’ nationalities — such as that of a British subject or an American, British, Canadian or Australian national or citizen — do not help to identify the relevant private law area that could deal with the case. Neilson again exemplifies the problem, once the court satisfied itself that the Chinese choice of law rule would have the parties’ common national law apply. This, of course, is the ‘national law’ as that would be understood in China, but there was no evidence as to how a Chinese court would interpret that or deal with citizenship in a federation. Further, the defendant was a corporation and, by Australian principles, corporations do not hold Australian nationality.68 There is also no Australian national law on limitation of actions, and if a claim is being brought under federal law a limitation period could only be identified if the court were exercising federal jurisdiction. But a Chinese court would not be exercising federal jurisdiction when trying to determine what the Australian national law on limitation would be. Finally, there is the problem that, if resort is made to a domicile of the parties with common nationality,69 the parties in Neilson were ‘domiciled’ or registered in different states. In Neilson, the difficulty of finding the national law in a federation was noted by a number of the judges,70 and it was one reason why Kirby J was not satisfied that the plaintiff had shown that Chinese law would remit the question to Western Australian law.71 However, the parties had, throughout the proceedings, assumed that the national law was Western Australian, and the court accepted that they had not joined issue on the point. While this is consistent with the adversarial method, it is nevertheless incompatible with the claim that the foreign court’s decision is being adopted. In Annesley, Ross and Duke of Wellington, the laws of the other places — all civil law countries in continental Europe — required questions of succession to be determined by the law of the place where the deceased was a national at the time of death. The deceased persons in all of these cases were British subjects, a nationality that, at the time, spanned the different countries of the United Kingdom and all of the other dominions, states, provinces, territories and colonies of the Empire and Commonwealth. The judges in Annesley, Ross and Duke of Wellington assumed that the law of England was the law applicable to the British subjects in question. Still, the identification of English law as the national law of a British subject was not expressly required by the laws of the foreign countries involved. It  was merely assumed by the English judges.

67. 68. 69. 70. 71.

See also 8.21–8.27. See 10.32. See Simmons v Simmons (1917) 17 SR (NSW) 419. (2005) 223 CLR 331 at 340, 361, 375, 384–5, 393–4, 400, 406; [2005] HCA 54. At 400.

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8.33  In Simmons v Simmons,72 the deceased had a domicile of origin in New South Wales, but migrated to New Caledonia and acquired a domicile of choice there. He died domiciled in New Caledonia, but still a British subject. There was no will, but the deceased left movable property in New South Wales. In the Supreme Court of New South Wales, Street J held that, in accordance with New South Wales choice of law rules, the question of the relevant rules of intestacy to apply was to be determined in accordance with the law of the place where the deceased was domiciled at death. This was the law of New Caledonia (France). However, the law of France remitted the question to the national law of the deceased at the time of his death. Street J also found that the law of France would reject the renvoi (and therefore the evidence showing how a court in France would deal with the problem of renvoi differed from the evidence on that point accepted in Annesley). The crucial question in Simmons was, what (as a British subject) was the deceased’s national law applicable to a question of intestacy? The law of France did not identify the particular place within the British Empire that would provide the law of the cause. Street J therefore had to place a common law gloss on the law of France. He held that:73 In applying the rule of distribution according to nationality to the case of a British subject domiciled in a country in which that rule applies, it must … be interpreted as meaning distribution according to the internal law applicable in that part of the British Empire in which the deceased had his domicile before he fixed his residence abroad.

The last place in the Empire where the deceased had been domiciled was New South Wales, which therefore provided the governing law of intestacy. However, the result was not one dictated by the law of France as the theory of double renvoi would claim it should be. It was dictated by the law of France, as adjusted by common law principles of domicile.74 8.34  The theory of double renvoi would not provide a solution to any problem of remission or transmission before an Australian court if the courts of the other place also used the theory of double renvoi. McHugh J called the result an ‘infinite regression’,75 but ‘stalemate’ is a more accurate metaphor. The forum court cannot adopt the result that would be reached by the foreign court if the foreign court will only adopt the result that would be reached by the forum court. Neither court, in the renvoi dialogue, can say what the result would be. And given that double renvoi is the predominant approach taken wherever the doctrine of renvoi is recognised in the Commonwealth, the problem is not as fantastic as it might first seem. Indeed, it becomes a real problem once the evidential rule is taken into account that, if it is not proved by one of the parties, the foreign law is presumed to be the same as the law of the forum. If, as is more common than not, neither of the parties has proved how the foreign law approaches the problem of renvoi, it must be presumed that it adopts the same approach as the law of the Australian forum does. Since Neilson, therefore, it must be presumed that the foreign law uses the doctrine of 72. 73. 74. 75.

(1917) 17 SR (NSW) 419. At 423. See also Re Johnson [1903] 1 Ch 821. Neilson v Overseas Projects Corp of Victoria Ltd (2005) 223 CLR 331 at 351; [2005] HCA 54. His Honour used language that had been applied where two countries using the doctrine of single renvoi are involved. Cf Cowan, above n 18, at 47; E N Griswold, ‘In Reply to Mr Cowan’s Views on Renvoi’ (1939) 87 University of Pennsylvania Law Review 257 at 257.

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double renvoi. McHugh J offered this as one reason why, in Neilson, renvoi should be ignored.76 It also might explain why, even in the absence of any evidence on the point, the majority was prepared to find that the Chinese choice of law rule for delicts would, unlike Australian law, ignore the renvoi. 8.35  Accordingly, the doctrine of double renvoi is only a workable approach to the problem if the foreign law-maker has been persuaded not to accept it, or if the local court itself develops an understanding of the foreign law that deems that the foreign law does not accept it. Nevertheless, despite the conceptual problems with the theory of double renvoi, the Australian Law Reform Commission concluded in the Choice of Law report that, ‘while logically hard to defend, the principle … leads to a sensible result’.77 With respect, that appears to be a conclusion that is itself logically hard to defend.

Exclusion of unacceptable laws 8.36  There are a number of cases where ‘The General Part’ of choice of law method would suggest that the law of another place is the law of the cause, but where the courts of the forum will still refuse to apply it. In some of these cases, the forum courts are bound to refuse application of the foreign law to the case. In others, it is almost as if the forum courts exercise a discretion, albeit a highly constrained one, not to apply the foreign law.

Unrecognised states 8.37  For the purposes of public international law, the Commonwealth Government has the power to recognise foreign governments or to refuse them recognition. The question can therefore arise whether the law of the cause identified by choice of law rules should be applied when it is the law of an unrecognised state. The logical answer is that the public and private international law should speak with the one voice and, therefore, that the non-recognition of a government could be a reason to refuse recognition of its laws.78 This is the approach suggested by Adams v Adams,79 albeit that the case concerned the question of the recognition of another country’s matrimonial decrees. There, an English court was asked to recognise a divorce granted in Rhodesia by Macaulay J, a judge appointed by the Rhodesian Government that had, in 1965, unilaterally declared independence from the United Kingdom. The United Kingdom did not recognise the 1965 unilateral declaration of independence, and nor would the English court recognise the decree made by Macaulay J. 8.38  As logical as Adams may seem, the approach taken in that case is inflexible. More  commonly, the courts have been prepared to recognise the laws of a state that the national government has not recognised, so long as that administration is in de

76. 77. 78. 79.

(2005) 223 CLR 331 at 353; [2005] HCA 54. Australian Law Reform Commission, Choice of Law, No 58, Canberra, AGPS, 1992, p 112. Aksionairnoye Obschestvo AM Luther v James Sagor & Co [1921] 1 KB 456. [1971] P 188.

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facto control of the relevant place.80 In Anglo-Czechoslovak Credit Bank v  Janssen,81 a bank incorporated in Czechoslovakia was dissolved by order of the occupying German authorities who had, after invading the country, taken de facto control of Czechoslovakia by belligerent occupation in 1939. However, the Czechoslovak controllers of the bank later took proceedings on a bill of exchange in the Supreme Court of Victoria. The defendant applied to have the action dismissed on the ground that (1) the bank did not exist; or (2) the action was being maintained without its authority. To accept either argument, the German decree liquidating the bank had to be recognised. However, Australia was at war with Germany and did not recognise the German administration in Czechoslovakia as the de jure government. For that reason, O’Bryan J dismissed both defences. This decision was reversed in the Full Court of the Supreme Court, where Mann CJ held that the relevant enquiry was whether the German administration was in de facto control of Czechoslovakia. Whether it was the de jure government was not important to the determination of private rights. The decree was therefore recognised and the defences succeeded. More recently, in Emin v Yeldag82 an English judge recognised a divorce made in the Turkish Republic of Northern Cyprus (TRNC). The TRNC claimed to secede from Cyprus in 1983, but this secession was not recognised by the United Kingdom and was declared illegal by a United  Nations Security Council Resolution. Although the British Government did not recognise the TRNC, it was prepared to intervene in Emin v  Yeldag to support the recognition of a divorce made under the TRNC’s authority. Sumner J was prepared to recognise the divorce on this ground.83 This exception to the policy of Adams may well be more appropriate in family law than in other areas.84

Penal laws 8.39  An Australian court will not apply the penal law of another place, even if as a result of proper use of choice of law method that law would ordinarily apply to the case. The  penal laws of another state generally concern its specific governmental interests, and are not considered suitable for enforcement in multi-state disputes between private citizens. This is reinforced by the assumption that another state’s penal laws do not, by public international law, have extraterritorial operation, whatever the state might claim. However, extraterritorial enforcement would become available for foreign penal laws if they were to be applied in the forum as part of the law of the cause. 8.40  Evidently, a penal law includes one that requires the imposition of a criminal sanction, like imprisonment or a fine. But, in private international law the concept is much broader. Indeed, it must be if the indirect enforcement of penal laws through private litigation is to 80. 81. 82. 83.

84.

Upright v  Mercury Business Machines 231 NYS 2d 417 (1961); Hesperides Hotels Ltd v  Aegean Turkish Holidays Ltd [1977] 3 WLR 656 at 665–6. [1943] VLR 185. [2002] 1 FLR 956. Sumner J also recognised the decree on the basis that ‘the Republic of Cyprus is one country but with two territories, each with their own system of law’: at [77]. This is doubtful, as it assumes official recognition of Cyprus as something like a federal state, which the United Kingdom does not concede: Y Ronen, ‘Recognition of Divorce Without Recognition of Statehood’ [2004] Cambridge Law Journal 268 at 270–1. Ronen, above n 83, at 270; cf Texas v White 19 L Ed 277 at 240 (1868).

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8.42

be avoided. For these purposes, the most authoritative definition of a penal law was that stated by Lord Watson in Huntington v Attrill:85 … no proceeding, even in the shape of a civil suit, which has for its object the enforcement by the state, whether directly or indirectly, of punishment imposed for such breaches by the lex fori, ought to be admitted in the courts of any other country.

The two elements that must be present for a law to be classified as penal are therefore, first, that the object of enforcing the law is the imposition of a penalty of some kind; and, second, that the penalty is being recovered ‘at the instance of the State or of an official … or of a member of the public in the character of a common informer’.86 8.41  The Huntington test established that a private claim on a bond brought in England by the United States Government to ensure that the defendant appeared in criminal proceedings was an attempt by a foreign government to enforce a penal law.87 It has also led to the rule that a prohibition on the guilty party to a divorce from remarrying should be classified as penal.88 In Banco de Vizcaya v Don Alfonso de Borbon y Austria,89 a law of confiscation was held to be penal. Securities owned by King Alfonso XIII of Spain were held at the Westminster Bank in London, but to the order of the Banco de Vizcaya. In 1931, King Alfonso was expelled from Spain and all Spanish banks were directed (without compensating the King) to deliver any of the King’s property in their possession to the Spanish Treasury. In 1932, both the King and the Banco de Vizcaya claimed the securities from Westminster Bank. Lawrence J found for the King, as the Banco de Vizcaya was obliged to deliver the securities to the Spanish Treasury. This would, directly or indirectly, involve the enforcement of laws expropriating property from the King, and thus would amount to the enforcement of a foreign penal law. 8.42  The status of foreign laws and judgments on punitive damages has recently divided Australian courts. In Schnabel v  Lui90 Bergin J of the Supreme Court of New South Wales refused to enforce part of a United States judgment which was for punitive damages. The court noted that the purpose of the award of such damages was to punish the defendant for its wilful non-compliance with the foreign court’s orders and so enforcement of the award by an Australian court would involve it enforcing a foreign penal law. It was implicit in the court’s decision that all punitive damages awards and laws would be unenforceable. The court nevertheless found that the compensatory part of the damages award could be severed from the punitive component and enforced. The Schnabel case was, however, distinguished by the Full Court of the Supreme Court of South Australia in Benefit Strategies Group Inc v Prider91 which suggested (obiter) that a punitive damages award would only be unenforceable where it involved a ‘public’ element rather than a vindication of private rights. In Schnabel, the public element was manifested in the fact that the defendant was punished 85. 86. 87. 88. 89. 90. 91.

[1893] AC 150 at 156. At 158. United States of America v Inkley [1989] 1 QB 255. In the Marriage of Mustafa (1981) 7 Fam LR 711. [1935] 1 KB 140. [2002] NSWSC 15. (2005) 91 SASR 544 at 552; [2005] SASC 194.

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for breaching its duty to the court. By contrast, where an award of punitive damages was made to punish the defendant’s deliberate and callous disregard of the plaintiff ’s rights enforcement was permissible. 8.43 The Benefit Strategies decision was recently applied by the Supreme Court of New  South Wales  in Surgibit IP Holdings Pty Ltd v  Ellis (No 2)92 and by the Supreme Court of Victoria in Doe v  Howard.93 In Surgibit, a judgment for treble damages was enforced where the basis of the award was not a lack of respect for the court or a failure to comply with court orders but the defendant’s ‘wilful’ breach of the plaintiff ’s patents. In Doe v Howard an award of punitive damages was similarly enforced where the defendant had engaged in ‘intentional and egregious conduct’ towards the claimant. J Forrest J went further, declaring that all awards of punitive damages in civil suits between private parties are enforceable, including sanctions for non-compliance with court orders.94 Only sums payable to a state by way of punishment are penal.95 The distinction between foreign laws providing for compensation and involving the enforcement of private law rights as opposed to laws involving the vindication of governmental interests is discussed at 8.55.

Revenue laws 8.44  For similar reasons to their refusal to enforce the penal laws of another place, Australian courts will not enforce the revenue law of another place. Like penal laws, revenue laws implement important governmental interests and policies. Further, the power to recover taxes can be considered a corollary of the power to levy them in the first place. As there is little question that the legislature of a foreign state cannot effectively impose taxes on persons or things outside its borders, it follows that its government cannot generally recover taxes from people and corporations outside its borders. The choice of law rules in the forum cannot therefore give extraterritorial operation to another place’s revenue laws by identifying them as part of the law of the cause. 8.45  The law prohibits both the direct and indirect enforcement of another state’s revenue laws.96 Thus, it is clear that the government of another place cannot bring proceedings in the forum for the recovery of a taxation debt. For this reason, in Government of India v Taylor97 the House of Lords allowed the liquidator of an English company to reject a proof of debt that the Indian Government claimed to have arisen as a result of the company’s taxation liabilities. Accordingly, those managing personal or corporate insolvencies can ignore the insolvent’s taxation liabilities to the governments of other states when that is the [2017] NSWSC 1379. [2015] VSC 75. At [170]. On this point, the court endorsed the view of Lord Denning MR in SA Consortium General Textiles v Sun and Sand Agencies Ltd [1978] QB 279 at 299–300. 96. Peter Buchanan Ltd v McVey [1954] IR 89; QRS 1 ApS v Frandsen [1999] 1 WLR 2169; P St J Smart, ‘The Rule Against Foreign Revenue Laws’ (2000) 116 Law Quarterly Review 360. Note, however, that on 1 December 2012 the OECD Convention on Mutual Administrative Assistance in Tax Matters entered into force in Australia. Under the Convention the Commissioner of Taxation is obliged to provide administrative assistance in the recovery of foreign tax debts by parties to the Convention. 97. [1955] AC 491; Smart, above n 96, at 363. 92. 93. 94. 95.

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8.48

sole purpose of the claim. The rule does not apply where, alongside a foreign government claiming a tax debt, creditors are also proving private (that is, non-taxation) debts to the trustee-in-bankruptcy or liquidator.98 The principle is, however, extended to prohibit less direct claims for the recovery of foreign revenue. 8.46  The application to the Supreme Court of New South Wales in Bath v British and Malayan Trustees Ltd99 was for the attorney of a Singaporean executor to be granted letters of administration, to enable it to deal with property the deceased had left in New South Wales. The deceased had died domiciled in Singapore, a fact that would normally give the Singaporean executor priority in any claim to be appointed administrator of the New  South Wales  property. However, the Singaporean executor had undertaken to the court in Singapore that he would use any foreign assets that came within his control to pay outstanding Singaporean probate duties. That being so, the granting of letters of administration to the Singaporean executor’s attorney would indirectly expose New South Wales property to the satisfaction of Singaporean taxes. The appointment would indirectly enforce another state’s revenue law, and so Helsham J refused to make it. 8.47  As has been seen, this exclusionary rule for choice of law method is paralleled by the rule that a foreign judgment will not be recognised or enforced if this would give effect to a foreign revenue law.100 Government of India v Taylor101 itself is actually a case of a refusal to recognise a foreign judgment debt. The position is different, however, where a plaintiff has paid tax to a foreign revenue authority and then seeks to recover such tax in a civil suit against a private party for contract or unjust enrichment. In such a situation the plaintiff is seeking to enforce private rights, not foreign revenue laws.102 However, it has also been seen that any taxation judgment made by a New Zealand court and any income tax judgment made by a Papua New Guinea court is enforceable by registration in Australia.103 It does not follow that New Zealand or Papua New Guinea revenue laws will be applied by an Australian court if picked up for application by the Australian choice of law rule. In these cases, the exclusionary rule would still seem applicable. If the Government of New Zealand  or of Papua New Guinea needs to enforce its revenue law against an Australian interest, it must therefore obtain judgment in its own country, and secure extension in Australia by taking advantage of the Australian rules for the enforcement of their revenue judgments.

Expropriation laws 8.48  Laws of other places that expropriate property from a person can qualify for application if selected by choice of law rules as part of the law of the cause. However, this will depend on the type of expropriation involved. Expropriation laws include: • laws of requisition, by which the person’s property is used by government for a limited period but in exchange for compensation; 98. 99. 100. 101. 102. 103.

Ayres v Evans (1981) 56 FLR 235. (1969) 90 WN (NSW) (Pt 1) 44. See 5.36. [1955] AC 491; see also 8.45 and Jamieson v Commissioner for Internal Revenue [2007] NSWSC 324. Re CJ CGV Co Ltd (2013) 281 FLR 390; [2013] VSC 656. See 5.67 and 5.77.

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• laws of nationalisation, by which the person’s property is acquired by government for its permanent use but in exchange for compensation; and • laws of confiscation, by which property is requisitioned or nationalised, but with the difference that the taking is without compensation. In the past, expropriation laws of any kind could qualify for application under normal choice of law rules. This was even when they were confiscatory. However, recent adjudication in England has placed a blanket prohibition on the application, in England, of a foreign nationalisation law that purports to have effect in the forum — regardless of whether it was confiscatory or not. Any of these kinds of laws might also be refused application in the forum if they can also be classified as penal.

Laws of nationalisation 8.49  Foreign laws nationalising property have, at times, been given effect in the forum by being applied in choice of law cases. The leading case in this respect was Lorentzen v  Lydden & Co Ltd,104 which involved a Norwegian decree made on the cusp of the German invasion of Norway in 1940. An emergency measure, the decree requisitioned all Norwegian ships that were outside German occupied territory — whether that was in Norway or anywhere else. It vested the ships, and any existing claims relating to them, in a curator. The curator claimed in the English courts to be entitled to a debt for an English charterer’s loss of a Norwegian ship, which sunk before the decree was made. Despite the defendants’ objections that the debt was located in England and that English law would not recognise that the debt was transferred to the curator, the curator was held to be entitled to succeed. Atkinson J held that the dictates of ‘policy’ suggested that the English court should give effect to the Norwegian decree. Plainly, the policy in question was the common engagement of the United Kingdom and Norway as allies ‘in a desperate war for their existence’.105 However, there are two curious points about Lorentzen v  Lydden. The  first is that the choice of law rule applicable to the transfer of the debt required its validity to be determined by English law, not Norwegian law. ‘Public policy’ — namely, support for the Norwegian Government-in-Exile — was used to direct that the law of Norway, which would not usually have been selected by the choice of law rule, should nevertheless be applied. The second is that effect was given to a nationalising requisition. The decision was best relegated to the ‘wartime cases’ category, and not followed.106 Earlier cases had already shown a marked disinclination to give effect to nationalisation measures.107 8.50  Both aspects of Lorentzen v  Lydden were raised to defend the claims made in England in Peer International Corp v  Termidor Music Publishers Ltd.108 The claimant alleged that it held  copyright in Cuban musical works through licensing agreements it made between 1930 and 1950. After the Cuban Revolution of 1960, Cuban Law 860 required all licensing agreements made before the Revolution to be submitted for 104. [1942] 2 KB 202. 105. At 215. 106. Bank voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248; cf O/Y Wasa SS Co Ltd v Newspaper Pulp and Wood Export Ltd (1949) 82 Lloyd’s L Rep 936. 107. The Jupiter (No 3) [1927] P 122; The El Condado (1939) 63 Lloyd’s L Rep 330. 108. [2004] 2 WLR 849.

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approval by a government board. If neither presented nor approved, the rights established under those agreements were forfeited, and the authors could enter new agreements. The defendant companies made agreements with authors after Law 860 came into force, and claimed the English copyright in the music under its authority. Relying on Lorentzen v  Lydden, the defendants argued that Law 860 was, regardless of the confiscation it made, capable of application in England. Further, although the law of the place where the property was situate would normally govern a copyright claim, and this copyright was English, the defendants argued that Law 860 was designed to correct a contractual imbalance between authors and publishers and, therefore, ‘was entirely consonant with English and international concepts of public policy’.109 As in Lorentzen v Lydden, public policy could be invoked to secure the application of a law that otherwise would not be applicable.110 These arguments were emphatically rejected, and Lorentzen v  Lydden was overruled on the ground that it was wrongly decided.111 In the English Court of Appeal, Aldous LJ (with whom Mance and Latham LJJ agreed)112 held that Cuban Law 860 was confiscatory. It removed the claimant’s copyright without compensation.113 It also claimed to have extraterritorial effect, in determining rights to property in England. An English court would not give effect to a foreign decree confiscating English property.114 Even if Cuban law was compatible with English public policy, it could not be used as ‘a sword’ to direct what the law of the cause would be. There is, as Mance LJ said, ‘little basis for elevating public policy to a positive connecting factor overriding the law of the situs [which is normally the law of the cause in property cases] … It would create confusion and uncertainty to do so’.115 For laws of nationalisation, Peer International settles that these will not be enforced, whether confiscatory or not, if affecting property in the forum.116

Laws of confiscation 8.51  In Aksionairnoye Obschestvo AM Luther v  James Sagor & Co,117 the early Soviet Government had, in 1918, confiscated Russian timber products from the plaintiffs, and in  1919 took possession of them. In 1920, these were sold to the English defendants. However, after the timber was imported into England the plaintiffs sought a declaration that the timber belonged to them. This was rejected in the English Court of Appeal, which held that the confiscation was a legally valid act on the part of the administration that was in de facto control of Russia. The reasoning in Luther’s case, nevertheless, does suggest that, if the other place’s government has not actually brought the property under its control,

At 855. At 855–8. At 858. At 868–9, 870. At 867. At 863–5. At 870. D Osborne, ‘Foreign Law and Property in England’ [2004] Cambridge Law Journal 567 at 567–8; K Mok, ‘Foreign Act of State and Public Policy Exceptions: Peer International Corp v  Termidor Music Publishers Limited’ (2005) 27 Sydney Law Review 167 at 177–8. 117. [1921] 3 KB 532 approved in Belhaj v Straw [2017] AC 964 at [35] (Lord Mance); [126] (Lords Neuberger and Wilson); [174] (Lady Hale and Lord Clarke); and [214] (Lords Sumption and Hughes). 109. 110. 111. 112. 113. 114. 115. 116.

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the expropriation may not be recognised in the forum as effective.118 However, an effective expropriation may not be recognised when it can be classified as penal. Banco de Vizcaya v Don Alfonso de Borbon y Austria119 is an example where a Spanish confiscatory law was considered penal, because the confiscation of Alfonso XIII’s property was made precisely because he had been King of Spain.120 To an extent this has meant that expropriation laws directed at one person only have been considered penal, as it is easier to interpret these laws as being intended to punish the person concerned than as being incidents of some broader government policy.121 Similar considerations might apply to expropriations directed at small groups of people.122 The removal of copyright, without compensation, was considered confiscatory in Peer International Corp v Termidor Music Publishers Ltd.123

Foreign governmental interests 8.52  The possibility of a broader approach to laws considered unacceptable for enforcement in the forum (even though selected as part of the law of the cause) was also explored by Lord Denning MR in Attorney-General of New Zealand  v  Ortiz.124 That case was an attempt by the New Zealand  Government to recover a Maori carving that had been removed from New  Zealand  in breach of that country’s Historic Articles Act  1962. The carving had been bought by the defendant in New York but brought to England. The  New  Zealand  Government’s claim failed, eventually because the House of Lords ruled  that, within the terms of the New Zealand  statute itself, the carving had not been forfeited to the government. However, in the Court of Appeal Lord Denning MR held that an English court would not enforce the ‘other public laws’ of another country.125 These were eiusdem generis with penal and revenue laws and were laws that are an attempted exercise by a government of its sovereign authority over property outside its borders or over persons outside its borders who were not its subjects. Private international law would not allow a government to exercise its sovereign power beyond the limits of its authority. Since it was an ‘other public law’, the New Zealand Historic Articles Act was not enforceable in England. 8.53  Lord Denning’s approach in Ortiz was singular but was later accepted by a majority in the English Court of Appeal.126 It was considered in Australia in Attorney-General for the United Kingdom v  Heinemann Publishers Australia Pty Ltd127 (the Spycatcher case), where the British Government attempted to restrain the publication in New South Wales of a book called Spycatcher. The author, Peter Wright, had been a British MI5 agent, and in the book recounted illegal activities on the part of the secret service organisation. Attorney-General of New Zealand v Ortiz [1984] AC 1 at 20. [1935] 1 KB 140. See 8.41. Folliott v Ogden (1789) 1 H Bl 123; 126 ER 75; Re Claim by Helbert Wagg & Co [1956] Ch 323 at 346. Re Claim by Helbert Wagg & Co [1956] Ch 323 at 345. [2004] 2 WLR 849. [1984] AC 1. At 20–4. United States of America v Inkley [1989] 1 QB 255 at 265; see also Attorney-General for the United Kingdom v Wellington Newspapers Ltd [1988] 1 NZLR 129. 127. (1987) 10 NSWLR 86; (1988) 165 CLR 30. 118. 119. 120. 121. 122. 123. 124. 125. 126.

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The British Government claimed that this was in breach of Wright’s obligations under the Official Secrets Act 1911 (UK), as well as his employment as a Crown servant and an equitable duty of confidence, and sought an injunction to restrain publication. Further, the Commonwealth Government supported the British Government’s claim. The claim failed, both in the New South Wales courts and the High Court of Australia. 8.54  In the New South Wales  Court of Appeal, the ‘other public laws’ exclusion was accepted by Street CJ and Kirby P. However, Street CJ thought that this did not prevent the British Government’s claim from succeeding as it was supported by the Commonwealth Government.128 The local sovereign could allow a foreign sovereign to enforce its laws in the forum. Kirby P held that the British Government was attempting to enforce an ‘other public law’: that is, the public law of secret service confidentiality imposed by the Official Secrets Act, Crown prerogative and equitable principle.129 For this reason, the claim had to be rejected. McHugh JA did not accept that there was an ‘other public law’ exclusion, but also rejected the British Government’s claim. The ‘other public law’ exclusion nevertheless influenced the High Court’s reasons for also rejecting the claim, but the majority formulated the principle differently and with more precision. Mason CJ and Wilson, Deane, Dawson, Toohey and Gaudron JJ thought that the expression ‘public law’ had no accepted meaning in the common law, and considered that the object Lord Denning had in mind in Ortiz was more accurately defined as ‘public interests’ or ‘governmental interests’.130 These were ‘claims enforcing the interests of a foreign sovereign which arise from certain powers peculiar to government’.131 In Spycatcher, the British Government was trying to enforce an obligation of confidentiality owed by a member of its secret service — a matter peculiar to the government’s interests in its own national security. It was inappropriate for Australian courts to adjudge matters relevant to the internal security of another country. It could also be detrimental to Australia’s own national interests and its relations with other countries were the courts to do so. Consequently, it was better not to deal with these cases at all. Spycatcher therefore established that it is not the classification of a law as ‘public’ that denies its application. It is the object of the proceeding as a pursuit of a foreign governmental interest that prevents enforcement of the law, whether it would ordinarily be considered public or private. 8.55  The issue of foreign governmental interests has arisen in a series of cases in which foreign regulatory authorities have sought orders in Australian and English courts. The  leading Australian decision is Evans v  European Bank Ltd,132 in which a receiver appointed by the United States Federal Trade Commission was held entitled to sue in New  South Wales  to recover the proceeds of a credit card fraud. The proceedings were held not to involve the enforcement of a foreign governmental interest because their object was to compensate aggrieved individuals who had suffered loss due to the fraud rather than to punish the wrongdoers. This conclusion was reached even though the claimant was a governmental entity and the fact that some of the funds may not have been able 128. 129. 130. 131. 132.

(1987) 10 NSWLR 86 at 119–22. At 136–43. Attorney-General for the United Kingdom v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 42. At 42. (2004) 61 NSWLR 75; [2004] NSWCA 82.

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to be distributed to the victims but would remain with the United States Government as a surplus. The key point was that the predominant destination of the funds showed that the purpose of the proceedings was compensatory. An earlier decision of the High Court of England and Wales in Schemmer v  Property Resources Ltd133 was distinguished by the court in Evans. Schemmer involved an action in England by a receiver appointed by the United States Securities and Exchange Commission to freeze and take possession of certain funds held in banks in England belonging to persons who had committed acts of fraud in the United States. The court in Schemmer held that the action could not proceed because the purpose of the proceeding was to place the funds in the foreign government’s possession to prevent the commission or continuation of breaches of United States regulatory laws. By contrast, in Evans the receiver’s objective was to acquire funds for a predominantly compensatory purpose. Note that Evans was approved and applied by the English Court of Appeal on similar facts in United States Securities and Exchange Commission v Manterfield.134 8.56  The foreign governmental interests doctrine was also referred to with approval by the English Court of Appeal in Islamic Republic of Iran v Barakat Galleries Ltd,135 although again not found to be applicable on the facts. Barakat involved an action by the Iranian Government seeking the return of antiquities held by a gallery in London. Iran was held entitled to recover the antiquities based on provisions of its own law which conferred upon the state rights of ownership over the articles even though they had not come into the state’s possession. The claim was therefore admissible as it involved the assertion of rights of ownership, not an attempt to enforce export restrictions.136

Public policy 8.57  The courts of the forum will not enforce the law of another place where to do so is contrary to the public policy of the forum. This is the most unpredictable ground for identifying an unacceptable law, as there is no agreed method for defining the ‘public policy’ of the forum. There is, nevertheless, increasing support for the view that public policy in international cases should be conceived in more limited terms than it is in domestic law.137 Nor is there agreement on the sources that can be used to id