PRIVATE INTERNATIONAL LAW NOTES

INTRODUCTION TO PRIVATE INTERNATIONAL LAW




“Private international law is the body of principles, rules, and at times, policies that indicate how a foreign element in a legal problem or dispute should be dealt with”

Mortensen 2008

The common law has traditionally classified multi-state cases as giving rise to one or more of three different issues:

1.       Jurisdiction

o    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

2.       Recognition and enforcement of foreign judgments

o    Where the case has proceeded to judgment in the other state or country, whether that judgment can be recognised or enforced in the forum

3.       Choice of law

o    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

o    Is the forum or foreign law to be ‘the law of the cause’ (lex causae) that disposes of the case, and how does the forum court choose one or the other?

o    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’

 

Private international law has its historical development in civil law. Lex fori is the law of the forum and lex causae is law of the cause/law of the matter in dispute. It is sometimes called the dispositive law (as opposed to procedural law.)

 

 

 

 

 

The court will still apply its procedural laws as to how the parties come about but it may apply some other law to resolve that dispute eg lex causae is not the law of Qld, it is the law of Indonesia. In Australia, there is a PIL rule which says disputes over real property are to be determined by the lex situs (place where the property is situated). The law where real property is will determine the rights and duties of people who have disputes over rights to property. The mechanism by which the court determines the lex situs is Indonesian law, is private international law.

 

 

There is a conflict of laws – two sets of laws and each set would give a different outcome when applied to the facts of the case.

 

 

The locus delicti is the place of the tort. Jurisdiction is the first issue that has to be addressed. The first question is can the court which has a foreign element before it addresses that foreign element.

 

 

The choice of law process is the process by which a court decides which of these two competing laws the court will apply to a case. Wherever these torts occur, the law that governs that action are governed by the law where you negligently performed. Forum shopping is not about going and getting a result, but preventing people from transferring actions from one system to another. Lex loci delicti is the law of the place of the tort which governs the law that will be applied. The two jurisdictions that are in conflict are not necessarily two jurisdictions in an international sense.

REGIE NATIONAL DES USINES RENAULT SA V ZHANG (2002) 210 CLR 491

·       The defendant was Renault (French company), the tort was committed in New Caledonia, and the forum was the NSWSC

·       Jurisdiction

o    P spent some time in hospital in NSW – ongoing medical treatment was sufficient under NSW rules to find jurisdiction

·       Choice of law (a foreign or interstate law)

o    What rule is applied to decide the matter to determine whether Renault was negligent in the manufacture or design?

o    Not going to turn to NSW law – going to turn to the law of France/New Caledonia

·       Recognition or enforcement of a foreign or interstate judgment

o    If you do apply French law, and the French company is liable, how do you get those damages

o    Assuming that Renault has no assets in NSW, how do you get those damages?

o    Recognition or enforcement of a foreign or interstate judgment

§   Hoping that a French court would enforce your interstate judgment

 

 

 

 

 

Private international law is not just about a conflict of substantive laws, but also about a conflict between different States’ conflict of law rules ie a conflict of conflict of laws.

 

 

Procedural rules will always be the law of the forum/lex fori. There is never a question of a Qld court applying civil procedure laws of California. However, a Qld court may apply foreign substantive law or lex causae.

Private international law rules such as lex loci delecti and lex situs are rules of choice of law. Qld court has different procedural rules to a French court and different substantive law, and may also have different private international law rules.

RE ANNESLEY; DAVIDSON V ANNESLEY [1926] CH 692

·       English testatrix dies while domiciled in France leaving a will (she had property in France)

o    Disowned (English) son disputes the validity of the will

o    If the will is invalid she has died intestate

·       Jurisdiction

o    Which State can determine the validity of the will? English or French? Or both?

§   May be that the English court has jurisdiction to hear this matter

§   May also be the case that the French court has jurisdiction to hear this matter

·       What happens when two courts both try and address the same matter

§   Assuming English court only has jurisdiction

·       English forum

o    Under English law and French law, the will is valid

o    Therefore there is no conflict – no problem

o    However, French law will only deal with 1/3 of the property

§   Substantive law of England differs from substantive law of France

o    Applying English law, the son gets nothing, whereas applying French law, the son gets 2/3 of the property

·       How does the court decide which of the two is going to apply?

o    Turns to the conflict of law rules/choice of law rules

o    Under British law, succession to movables is determined by the domicile of the testatrix ie France

o    Under French law, succession to movables is determined by nationality of the testatrix ie England

·       Therefore, there is a conflict of substantive law and a conflict of choice of law rules

 

 

 

For the most part, dealing with the common law of Australia. The conflict of law rules do not differ between the states, but the substantive law may. Nielson v Overseas Projects sets the law on how you deal with conflict of conflict of laws. In this case, the HCA elevated the goal of consistency in international litigation over and above all other goals of PIL.

Judicial decisions

The main source of choice of law rules in Australia remains the common law.

Constitutional sources

The Commonwealth Constitution includes a number of provisions important to private international law questions within the Australian federation.

International conventions

PIL is about national law of Australia. Some of this law has its origins in international conventions, and only becomes part of the substantive law of Australia if enacted by legislation. UNDROIT and UNICTRAL try to adopt international conventions that introduce uniform legislation (substantive law). Hague Conventions doesn’t try to introduce uniform substantive laws, it tries to introduce uniform conflict of law rules.

Legislation

Most of Australia’s PIL is found in the legislation for family law. By looking at the different ways in which PIL is characterised eg common law vs legislation.

Scholarly writing

Why the courts adopt these rules and why they sometimes have difficulties applying the rules.

 

 

A conflict of laws – may be State (as in nation State/country) or State (as in constituent element of nations State – Queensland, California, British Columbia). It is the existence of a conflict of laws which calls into question the scope of PIL. Conflict of laws is conflict between two bodies of law. There is no question of the government acting unless they are acting in a private capacity.

It may apply between:

·       Two nation states (Australia and France) OR

·       Two constituent components (NSW and Qld or Qld and California) OR

·       Between a nation state and another nation state’s constituent component (Australia and Quebec)

Australian constitutional powers – federal includes: corporations, insurance, insolvency and marriage eg Federal Marriage Act 1961. However, in the US/Canada, marriage is a state power. There can be a conflict between Federal law and eg Californian law.

Australian common law – no conflict possible between States. In interstate cases, the doctrine limits the choice of law method to cases where at least one of the contending laws is of statutory origin. States modify common law eg Civil Liability Act 2003 (Qld). There is conflict only if on a particular matter there is a conflict between, eg a WA statute and Qld statute; WA statute and common law; common law and Qld statute.

 

Public international law – the public law eg nation state, human rights, international crime.

Private international law – the private law eg obligations (contract, tort and restitution), property (holding, transfer, succession), persons (family law, corporations law, insolvency status), not crime, government or administration.

Public international law – conventional (treaty) and customary international law (practice of nations).

Private international law – the individual nation’s municipal law (Federal or State), though some unification through international treaties eg Hague Convention on Exclusive Choice of Court Agreements

Why does a court ever apply a foreign law – why not simply apply the lex fori? What is the policy/theory underpinning PIL?

 

 

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 is 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.

The goal of consistency therefore also aims to minimize 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: Perret v Robinson; Stevens v Head.

As an objective for conflicts law, the goal of consistency has been dismissed as both unrealistic and, on occasions, subversive of just results in particular cases.

Involves giving effect to the expectations of the parties. 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.

Reciprocity eg respecting that another country has a separate legal system and that legal system will give effect to our laws etc. Recognising that we won’t necessarily apply our laws to solve a dispute.

The doctrine of comity was the basis for the application of foreign laws according to Story, but mainly used to emphasise that a form court had no obligation to apply the law o fanother country or state.

HILTON V GUYOT 159 US 113 (1894)

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.

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. 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 an harmonious international legal order.

1.       The consequences of globalization multistate legal problems are increasingly common

2.       It is inherently and historically complex, with debated theoretical underpinnings

3.       Its rules, as common law rules supplemented with legislative provisions, are in flux

4.       PIL is municipal law, therefore it is not universal, and differs from State to State (including differences in conflict of laws itself – different States may have different ways of addressing a foreign element in legal issues)

5.       Some degree of uniformity is, however, sometimes attempted through international conventions eg

Hague Convention on Exclusive Choice of Court Agreements

JURISDICTION

Jurisdiction is the power that a court has to deal with a particular case. However, a court will not necessarily hear a case just because these rules of jurisdiction are satisfied. There are certain multi-state cases a court has no jurisdiction to determine, even when jurisdiction is otherwise established on one of the grounds discussed in this chapter. There are also considerations which allow a court, in the exercise of its discretion, to decline jurisdiction in a multi-state case even though the court still has the right to determine the case.

 

1.       Jurisdiction at common law

o    Very narrow jurisdiction, but nevertheless continues to exist in Australia

2.       Jurisdiction in interstate cases

o    Defendant is in another state or territory

o    Special rules about Australia and the legal systems within Australia

3.       Jurisdiction in international cases

o    Defendant is outside Australia

 

 

1.       The old English system was based on territoriality – the defendant had to be present in the territory of the forum. If the defendant was outside of your territory, you had no jurisdiction even if he was one of your citizens.

2.       The alternative is consent, or if the defendant voluntarily submits to the jurisdiction of the court.

There are a number of situations where this may be the case

o    Actually not the defendant

o    Alternative forum might be harder on the defendant (assuming the alternative forum has jurisdiction)

o    Where the defendant can counterclaim

In sophisticated sales contracts, they can have a choice of forum clause which allows the parties to choose beforehand what forum the dispute will be resolved in. However, just because have submitted in a contract to a choice of forum doesn’t mean the parties have agreed about the choice of law (can have choice of forum clause and a choice of law clause.)

 

1.       Claim (writ, application, originating summons) issued – when filed and checked in court registry

o    The defendant must be within the jurisdiction when the writ is issued: Laurie v Carroll

§ Separate from issue of serving the writ

2.       Claim served on defendant (respondent) – personally or in case of corporation (delivery to office)

o    Jurisdiction is ‘perfected’ when served

o    However, if left when knowing of writ or to avoid service, then jurisdiction is perfected

o    Defendant tagged on flight between Texas and Tennessee when travelling through Arkansas airspace: Grace v Macarthur

o    Only at this stage can a court be considered to have jurisdiction over a defendant

 

 

Jurisdiction is perfected only when claim served, as only then can the defendant be said to be under a duty to obey the court’s command to appear before it.

When does the defendant have to be in the territory? When summons is issued? When it is served? How long do they have to be in the jurisdiction? What purpose is that person within the territory?

LAURIE V CARROLL

 

·       Facts

o    L based in London, C based in Melbourne

o    Contractual dispute about moneys to come out of a theatrical performance

o    C decided to sue L for some of the proceeds that should have come out of this contract

o    C gets writ issued in Melbourne but discovers that L left Melbourne the day before the writ was issued and went to Sydney

o    L subsequently discovers he is going to be sued by C and before anything can happen he goes back to the UK

o    Writ issued on 14 June but never served on L

o    C tried to obtain substituted service on 21 June

·       Held

o    At common law, at the time the writ was issued L was not in the jurisdiction of the court (had left Melbourne to go to Sydney)

o    Thus when the writ was issued, the court had no jurisdiction over L

o    The court refused substituted service

§   If D isn’t within the jurisdiction when the writ is issued, can’t serve writ

o    If L left Australia knowing C would sue, would fall within the court’s jurisdiction

§   D must knowingly evade service by leaving the jurisdiction before the writ can be served

§   Here, the court may order substituted service on the defendant as physical service of initiating process had failed

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. It does not matter that the defendant’s presence there is temporary:

Colt Industries Inc v Sarlie.

In general the purpose for which the defendant is inside the territorial borders of the forum is irrelevant to the question of jurisdiction. In some jurisdictions, D simply has to be within the territory – there is no length of time eg D validly served when flying over Arkansas airspace: Grace v MacArthur. The exception is if D is lured into the jurisdiction under false pretences merely to issue a writ. However, it is only the most extreme cases that the exception is likely to upset the court’s jurisdiction.

Similar principles apply in personal actions against a company. The company must have some presence inside the forum’s territorial bounds to be subject to the jurisdiction of the forum court. 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. Holland J in National Commercial Bank v Wimborne identified three criteria that tend to establish a company is carrying on a business in the forum:

 

1.       The company is represented in the forum by an agent, who has authority to make binding contracts with persons in the place

2.       The business is conducted at some fixed and definite place in the forum

3.       The business has been conducted in the forum for a sufficiently substantial period

 

 

PERRETT V ROBINSON

 

·       Tried to allege that Qld didn’t have jurisdiction because D fraudulently led into jurisdiction

o    Failed because D knew exactly what he was doing – going for the sole purpose of being served with the writ

 

1.       Submission by agreement

o    Forum clause – constitutes a voluntary submission to the jurisdiction of the forum’s court and, even where there is no other connection with the forum, a party cannot later deny the jurisdiction of its courts or the power they have to render a binding judgment: Vogel v Kohnstamm

o    If not expressly stated in terms of contract, unlikely that it can otherwise be inferred

o    Distinguished from choice of law clause which specifies that the law of the forum, or another place, shall be the proper law of the contract: Dunbee v Gilman and Co

o    Also distinguished from an arbitration clause, in which disputes referred to arbitration in the forum

2.       Authorising lawyers to accept service of writ

o    Jurisdiction is established once the lawyer is served, and indorses acceptance of service on a copy of the document

3.       Appearance

o    Clearest expression of submission to jurisdiction is the entry by the defendant of an unconditional appearance in response to the originating process

o    A person who does not intend to submit to the court’s jurisdiction has two alternative courses

§  Person served may refuse to enter an appearance

§  Can enter conditional appearance (except NSW and SA)

o    Person who actively challenges jurisdiction must act consistently with protest against jurisdiction

§  Tacit concession of court’s right to hear and determine the merits of the plaintiff’s claim will be taken as submission to jurisdiction

 

Most states allow you to make a conditional appearance before the court (ie not appearing before court as a defendant because don’t accept the court’s jurisdiction.) If you appear and do something with that challenge eg raise substantive issues, then you’ve required the court to deal with that and have consented to the court. In SA you actually do appear before the court, but if that appearance is solely for the purpose of challenging it, that appearance is not an appearance (ie an appearance is not deemed to be submission to the jurisdiction.)

Even if the defendant denies the court’s jurisdiction, the defendant will be taken to submit to jurisdiction where he or she:

 

·       Agrees to allow the substantive case to be heard: Rimini Ltd v Manning Management and Marketing Ltd

·       Defendant’s lawyer makes oral submissions on the merits: Boyle v Sacker

·       Defendant makes a counterclaim on a ground related to the plaintiff’s claim: Factories Insurance Co v Anglo-Scottish General Commercial Insurance Co

·       Defendant consents to interlocutory orders in the cause: Esal (Commodities) Ltd v Pujara

·       Defendant argues against the extension of the limitation period applicable to the claim: Portelli v Selstam

·       Defendant applies for an order for security for costs: Lhonex, Limon and Co v Hong Kong and Shanghai Banking Corporation

 

However, an exception to this principle is where there is an application that the action should be stayed on the ground of forum non conveniens. The application proceeds on the assumption that the court has jurisdiction, but it is argued that in the exercise of its discretion the court should decline that jurisdiction.

Jurisdiction at common law applies in this case as well, but in most situations it is replaced by statute:

 

·       QLD – Uniform Civil Procedure Rules 1999

·       NSW – Uniform Civil Procedure Rules 2005

·       ACT – Supreme Court Rules 1937

·       FCT – Federal Court Rules (Cth)

·       VIC – Supreme Court (General Civil Procedure) Rules 1996

·       TAS – Supreme Court Rules 2000

·       SA – Supreme Court Rules 2006

·       HCA – High Court Rules 2004 (Cth)

·       WA – Supreme Court Rules 1971

 

 

For private international law purposes, Qld is as foreign to NSW as it is to Quebec. From a common law perspective, Qld has no jurisdiction in NSW – legislation has changed this substantially eg Service and Execution of Process Act 1992 (Cth) and the uniform State and Territory Jurisdiction of Courts (Cross-vesting) Acts 1987. These schemes have done away with any private international law issues that could arise between states and territories.

The Act applies to all superior and inferior tribunals having the status of a court under state or territory law. It provides that initiating processes 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, eg Qld Court will use Qld procedure to serve D in WA. 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, s 12.

This 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.

Establishes a system of cross vesting of jurisdiction between (federal, state and territory) courts, without detracting from the jurisdiction of any court. Under this legislation, jurisdiction of superior courts is cross- vested but transfers are allowed to more appropriate superior courts.

State Supreme Courts have not cross vested their jurisdiction to the federal court, however, they do have federal jurisdiction. Territory courts can vest their jurisdiction in the federal court. There is also no cross-vesting of Federal and Family Court jurisdictions. The inability of the FCA and Family Court of Australia to receive state and internal territory jurisdictions – as held in Wakim – is now the largest gap in the scheme.

There was some debate as to whether cross-vested jurisdiction was ‘substantive’ or ‘procedural’ jurisdiction: Seymour-Smith v Electricity Trust of SA (1989) 17 NSWLR 648; David Syme & Co Ltd (Rec & Mgr Appted) v Grey (1992) 115 ALR 247. This is no longer practically relevant because of the Service and Execution of Process Act. Thus there is no longer really an issue of jurisdiction between states and territories in PIL – always have the power to transfer matter to another court. However, it must be noted that the law of Qld and NSW are completely separate entities for choice of law, but not for jurisdiction.

This is where the defendant is outside Australia. Under common law, a court has no jurisdiction as the defendant is not within the court’s territorial jurisdiction and has not submitted to that jurisdiction.

If P is present in forum this can be the basis of jurisdiction. Even if all of those things are present, the court will still not have jurisdiction if D is outside the forum (in common law.) This is the case if the D is a resident of the forum but has left before the summons were issued. The courts have adopted legislation which adds to

common law and in certain circumstances the court will have jurisdiction over the foreign defendant. Note: Federal Court Rules O 8 r 2 is a catch-all clause.

 

If a person is domiciled in Australia or usually resident in Australia, Australia will have jurisdiction even if the cause of action arises somewhere else. Australian courts will always have jurisdiction over you as an Australian resident.

 

1.       Contract made in the forum

o    Not necessarily clear what ‘made in the forum’ means

§  Most common way is where acceptance of contract is in Australia

o    Where last act necessary to create a binding contractual obligation occurred: Deer Park Engineering v Townsville Harbour Board

§  Place where the offeror received official communication of acceptance of the terms of the agreement

o    Clause in agreement stating where contract is made is not conclusive of the place the contract was made as this conclusion is ascribed by law, not the agreement of the parties: Sheldon Pallet Manufacturing Co Pty Ltd v NZ Forest Products Ltd

2.       Breach of contract within the forum

o    Doesn’t mean that every part of the breach occurs in Australia, but the breach alleged must occur in Australia

o    This can occur even if the contract is made somewhere else

o    Most common is failure to pay

o    To justify service on this ground, the plaintiff must show that

§  The action is ‘in respect of’ or ‘founded on’ a valid contract

§  There was a breach of that contract

§  The breach took place in the forum

·       Obligation which plaintiff alleges has been breached must be one which had to be performed in the forum

·       If plaintiff alleges that it is the performance of an act that constitutes a breach of contract, the breach is taken to occur where the act took place: Safran v Chani

3.       Contract is governed by the laws of the forum (proper law of the contract – forum clause)

o    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, 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

 

The use of ‘contract’ doesn’t mean contract strictly – it could be an assignment of a right (also falls within this head of jurisdiction), actions brought by a third party in respect of a contract made by others, and actions relating to other obligations to pay a fixed sum of money that are imposed by law.

 

1.       Cause of action arose in jurisdiction (FCA, HCA, NSW, QLD, Tas) – wider than simply torts

o    Cost of hospital treatment in NSW was sufficient for NSWSC to find that it had jurisdiction:

Renault v Zhang

2.       Tort committed in forum

o    In all jurisdictions, service outside Australia is permissible in an action ‘founded’ or ‘based’ on a tort committed in the forum

o    The tort was failure to inform about the risk of thalidomide: Distillers Co v Thompson

o    Agar v Hyde (2000) 201 CLR 552

o    Dow Jones & Company v Gutnick (2002) 194 ALR 433

3.       Damages suffered in the forum

o    Injury sustained, in whole or part, in the forum, from a tort, wherever occurring

o    In order to determine whether damages wholly or partly suffered in jurisdiction, have to be careful of what the tort actually is

§  As soon as Australian courts say all they need is part of damages within forum, the court will readily accept jurisdiction

§  Not just terms of damages in terms of paying out money, also pure economic loss

o    P injured in accident in Qld incurred damage after returning to NSW because she needed further treatment in Sydney and suffered economic loss as a result of reduced earning capacity: Flaherty v Girgis (1985) 4 NSWLR 248

o    Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491

o    Dow Jones & Co Inc v Gutnick (2002 10 CLR 575 at 622

o    These lead to the possibility that jurisdiction exercised only on the basis of the plaintiff’s residence

 

DISTILLERS CO V THOMPSON (1971)

·       Court required to determine

o    Whether alleged wrong constitutes a ‘tort’; and

o    Whether occurred to a sufficient degree in the forum

·       The tort was failure to inform about the risk of thalidomide

o    If it was negligently manufactured outside Australia, don’t have jurisdiction about negligent manufacture

o    Tort was failure to warn in NSW where they submitted the drug

 

 

DOW JONES & COMPANY V GUTNICK (2002) 210 CLR 575

Gleeson CJ, McHugh, Gummow and Hayne JJ (at 607):

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.

 

·       The question was whether the Victorian court had jurisdiction to hear this dispute

·       Problem with the court exercising on this basis is that it can be called into any jurisdiction where it is downloaded

o    Reputation/damages suffered is only going to be suffered where people knew this particular person

§   Even though under principle articulated by the judges a Zimbabwean court may exercise jurisdiction, they may not be able to prove defamation

§   Not necessarily Zimbabwean law if it is heard in Zimbabwe

 

Real property (land) – situs (time and space) – jurisdiction founded ie, as long as that property was in Australia in time and space and also at the time the dispute about the property arose means jurisdiction will be found. If property is somewhere else, there will be a problem with enforcement. The action must relate to title to, or possession of property: Shire of Yeerongpilly v Love (1906) cf Victoria v Hansen[1960].

SHIRE OF YEERONGPILLY V LOVE (1906)

·       Matter concerning rates outstanding in relation to property

·       Under legislation, property itself was security for the rates

·       To the extent that unpaid rates was a claim against the property meant it was related to title/possession of property

·       Property in Australia and dispute about rates in Australia

 

 

VICTORIA V HANSEN [1960]

·       Dispute about stamp duty in relation to property

·       Stamp duty merely personal debt, couldn’t be used against property - not sufficiently connected to title/possession of property

·       When talking about property need to think about what the actual claim is and how that relates to property

o    Unpaid rates falls within property because it is broadly construed

 

Leave to serve outside Australia (FCA, ACT, WA) leave of court required:

 

·       Appropriate case (primae facie case)

o    So as not to put D to time and expense of answering spurious claims

·       Within grounds of jurisdiction

·       Unlikely to obtain stay in proceedings on basis of forum non conveniens

 

 

Most courts in Australia (or at least FCA, ACT, WA) will ask whether they are the appropriate court to adjudicate a matter. Technically, have to show that you are not an inappropriate court to hear the matter.) The plaintiff must pre-empt other grounds on which the defendant might apply for a stay of proceedings eg forum clause providing for dispute to be determined in another court. Leave won’t be granted where it is evident that the plaintiff won’t succeed, either because it is unlikely they will make out the claim or the defendant has a good defence. If don’t submit to process, need leave to proceed – can still proceed against foreign D even if they do nothing, but must satisfy burden of above three requirements.

HCA, NSW, Qld, SA, Tas, Vic – service of initiating process does not require leave of court BUT leave is required if proceeding to litigation without the defendant entering an appearance. The court therefore has discretion to refuse leave, even in cases that come within one of the specified grounds of 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.

AGAR V HYDE (2000) 201 CLR 552

 

·       If the defendant argues that leave to proceed should not be given, the court might fairly be asked to consider

o    That the court was a clearly inappropriate forum (ie a forum non conveniens) to decide the case

o    That the claim had insufficient prospects of success

o    That the claims were not of a kind set out in the grounds of jurisdiction in r 124

o    Gaudron, McHugh, Gummow and Hayne JJ required a ‘high degree of certainty about the ultimate outcome of the proceedings’

·       Facts

o    Action against IRFB by a group of P’s who suffered injuries because of scrums collapsing

§   IRFB failed to property scrutinize the way rules about scrimmaging had been applied

§   Damages suffered in Australia due to negligence of IRB (outside Australia)

o    P really has burden that the court is not a forum non conveniens

o    This forum is an appropriate forum to hear this dispute

o    Could argue that Australia is an appropriate forum to hear dispute about injuries suffered in Australia – falls under FCA rules

·       Held

o    Without adjudicating matter, court said that alleging tort by IRFB and IRFB was negligent was saying that IRFB had duty of care

o    The court was not satisfied that P could prove this

§   Looked at substance of matter and asked primae facie whether P could show they have a good case against D

§   In this particular case, claim is spurious – couldn’t see on information before it that duty and breach could be proved

o    Heads of damages themselves are not sufficient – they are a precondition but still have to satisfy other requirements

o    Limits possible exorbitant jurisdiction of Australian courts

o    Gaudron, McHugh, Gummow and Hayne JJ

§   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

§   The court was a clearly inappropriate forum for the determination of the proceedings, under the relevant principles of forum non conveniens

§   The claim had insufficient prospects of success to warrant an overseas defendant being put to the time, expense and trouble of the litigation

·       Had to be a high degree of certainty about the ultimate outcome of the proceeding – not sufficient that the plaintiff’s failure at trial merely be likely or probable

JURISDICTION II

Common law: presence or consent to jurisdiction.

Inter-state: Service & Execution of Process Act 1992 (Cth) and Cross-Vesting Acts 1987

International: refer to each jurisdiction’s legislative requirements re leave to serve and leave to proceed and grounds for jurisdiction:

·       Personal – defendant domiciled or resident

·       Contract – made in forum, breached in forum, choice of law clause

·       Tort – committed in forum, damages suffered in forum

Even if, under normal rules, a court has extraterritorial jurisdiction, that jurisdiction might not be exercised because:

1.       The law of the jurisdiction requires it not to be exercised (‘substantive limits on jurisdiction’)

2.       The law of jurisdiction gives the court a discretion allowing it to choose not to exercise jurisdiction (‘restraints on proceedings’)

The first of these is mandatory and the second is discretionary.

 

 

Coercive power of the court is the power of the court to consider a matter, adjudicate on that matter and adjudicate on that matter and then enforce that decision. The exceptions of foreign state immunity and diplomatic and consular immunity are subject to public international conventions. Foreign immovables are slightly different.

BRITISH SOUTH AFRICAN COMPANY V COMPANHIA DE MOÇAMBIQUE [1893]

·       Applied to title, possession or trespass actions (and actions dependant on these)

·       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

o    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

·       Extent of application uncertain

·       Altered in ACT (1995) and NSW (1989)

o    Increasingly legislative intervention that undermines the Mozambique principle

o    Even when the common law principle continues to apply, courts have been reading this narrowly

·       Stands for the proposition that a court, even though it may have jurisdiction over a defendant, may not hear a matter where at the heart of the matter is title/possession to immovable property eg land

o    Stands to reason that if the dispute is about title/possession to property in Russia, an Australian court should not be the appropriate place to deal with that matter – it has the ability to control who has title/possession to land

Foreign immovables include land, patents, trade marks, copyrights etc.

DAGI V BROKEN HILL PROPRIETY COMPANY LTD (NO 2) [1997]

·       Facts

o    Claim against BHP concerning land that had been affected by mining operating in PNG

o    Part of the action against the company was in nuisance and negligence

§   Nuisance was the extent to which the activities of the company had impacted on title/possession of landholders in PNG

§   Negligence was that the activities had caused pollution to the water supply in PNG

o    The court had to decide whether any of those matters came within the Mozambique principle

§   Nuisance affects possession/enjoyment of land

·       To the extent that this matter was about the extent/use/enjoyment of land, the Mozambique principle applies

o    At the heart of the matter, the dispute was about immovables/title to/possession of immovables

·       Held

o    The negligence action was not about land or title to/possession of land

§   It was about negligence that caused damage to P

§   Fell outside principle

§   Court had power to hear matter even though it occurred outside Australia

§   No difference between this case and Renault

 

 

 

Contracts dealing with land

To the extent that the dispute is about rights/duties of parties under a contract, even though the contract is about land, the Mozambique principle is found not to apply.

Breach of trust

If the matter is about breach of trust, even though the subject matter of the trust is land, the court said the matter is about breach of trust, not immovables.

This is an example of the principle of classification (way different legal issues are classified.) The Mozambique principle will only apply to the middle circle, anything else classified slightly differently will not.

SINGH V SINGH (2009) 253 ALR 575

·       Facts

o    Two brothers had a dispute and one owed the other money

o    Both brothers were residents of WA

o    B feared his assets were going to come under attack so he transferred interests in immovable property in Malaysia to his wife and daughter (these transfers were executed in WA)

o    A wanted to bring an action against B to recover money and restrain dealing in property by his wife and daughter to deliver property for auction

o    B argued Mozambique principle

·       Held

o    The court narrowly construed the Mozambique principle

o    This does not involve foreign immovable property, but auction sought by A is not about title/possession to property as such

§   Trying to enforce personal obligation against WA residents not to deal with property in any way that adversely affects A’s interests

·       The order against the wife and daughter in Australia not to do something in Australia

o    Can restrain Australian resident from dealing with property in Malaysia

o    If the matter is simply about a personal obligation, they will not construe this as falling within the Mozambique principle

o    At CL there is still this exception

Foreign State Immunities Act 1985 (Cth) – foreign state is immune from the jurisdiction of any court in Australia. However there are exceptions for:

·       Submission

·       Commercial activities (vs public function): Victoria Leasing Aircraft Ltd v United States of America

(2005)

o    Eg contract for the supply of goods or services; agreement for a loan or some other transaction for or in respect of the provision of finance; a guarantee or indemnity in respect of a financial obligation

Diplomatic Privileges and Immunities Act 1967 (Cth) and Consular Privileges and Immunities Act 1972 (Cth) implement the Vienna Conventions. They are limited to actions carried out in official capacity, if actions are carried out in a private capacity the courts will have jurisdiction.

1.       Restraints the forum court places on itself

o    International cases – by a stay or dismissal of proceedings

o    Interstate cases – by a transfer or stay of proceedings

2.       Restraints the forum court places on litigant in another court

o    By anti-suit injunction

 

REGIE NATIONAL DES USINES RENAULT SA V ZHANG

·       Renault raised question of whether NSW was the appropriate forum to deal with this

o    Asking the court to recognise it had jurisdiction, but asked the court not to exercise that jurisdiction

§   More than one court probably has jurisdiction in this case

§   Don’t want P suing in all three forums

§   Forum non conveniens is the action one takes when one is asking a court with jurisdiction not to exercise that jurisdiction

 

MARITIME INSURANCE CO LTD V GEELONG HARBOUR TRUST (1908) 6 CLR 194

·       Injustice to defendant because

o    Oppressive or vexatious; or

§   Ie P is trying to forestall some kind of action/get an unfair advantage by forum shopping

§   Effectively P trying to initiate the action in the most inappropriate place and try to undermine the action

o    An abuse of process; AND

·       Stay 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 geographic location of the forum. The principle also meant that a stay was highly improbable, and the plaintiff’s choice of forum only rarely displaced.

There were many criticisms about the approach taken by the HCA. This approach is not just about causing damages to the defendant, but giving the plaintiff the right to sue where they want to sue and get any advantage of invoking the court’s jurisdiction – approach is to give the plaintiff freedom of choice. This approach made it difficult to argue for the defendant that an Australian court is an inappropriate court – plaintiff friendly approach (forum shopping?).

 

FORUM NON CONVENIENS

SPILIADA MARITIME CORPORATION V CANSULEX LIMITED [1987] 1 AC 460

·       The ‘clearly more appropriate forum’ test

·       Court considers the forum with which the proceedings have the most real and substantial connection by considering a range of connecting factors articulated by Goff LJ

Forum non conveniens is a Scottish law concept. If there is more than one potential jurisdiction and D challenges, should consider which jurisdiction is the most appropriate jurisdiction – if there is another forum which is clearly more appropriate with jurisdiction, will stay and may even dismiss proceedings. This test makes the court engage in a comparative exercise.

Connecting factors

·       Residence and availability of witnesses

·       Residence and place of business of parties to action

·       Law of the cause

o    In Australia, approach to tort is lex loci delicti

o    Only one factor amongst many and is not determinative

o    If the law of the cause is a foreign jurisdiction, this can be taken into account

·       Legitimate jurisdictional advantage eg longer limitation period

o    If the reason doesn’t exist in the other court, should give the plaintiff who has found jurisdiction the right to give effect to that jurisdictional advantage

Having considered these factors, the court can restrain proceedings if it is satisfied that there is a clearly more appropriate forum, with jurisdiction, where the proceedings could be determined more suitably for the interests of the parties and the ends of justice.

In Lubbe v Cape Plc, the way 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’. This was because the complexity of the claims was such that, without the assistance that was available to the plaintiffs in England, the claims would have not been heard at all in South Africa.

In proceedings in tort, English courts have accepted the place in which the tort is committed is prima facie the natural forum for the determination of the dispute. Thus a plea of forum non conveniens is harder to sustain when the plaintiff alleges a tort has been committed in the forum.

 

THE AUSTRALIAN APPROACH

OCEANIC SUN LINE SPECIAL SHIPPING CO INC V FAY (1988) 165 CLR 197

·       Brennan J

o    Geelong Harbour Trust

·       Deane and Gaudron JJ

o    Intermediate position – clearly inappropriate forum test

§   Instead of asking which is the most appropriate forum, should simply ask ourselves whether we are an inappropriate forum

·       Wilson and Toohey JJ

o    Spiliada

 

VOTH V MANILDRA FLOUR MILLS PTY LTD (1992) 171 CLR 538

·       Facts

o    P was NSW company, D was Missouri accountant

o    P took action against Missouri accountant

o    D had given a subsidiary of P some advice about tax that was negligent

o    Because of that negligence, a subsidiary of P suffered tax penalty which resulted in them losing certain tax rights in Australia

o    P’s subsidiary company was a Kansas company, and D was in Missouri – nothing to do with Australia

o    To the extent that P had suffered some loss in Australia, the NSW court said they had jurisdiction

§   D said they are not the most appropriate forum

·       About US tax law between Missouri D and Kansas P

·       When NSWSC said had jurisdiction, application forum non conveniens

·       Held

o    Application for forum non conveniens succeeded on appeal in HCA

o    Confirms that, in Australia, a court can still only decline to exercise jurisdiction when the proceedings are vexatious and oppressive, or an abuse of the court’s process

§   On its face, no different from Geelong Harbour Trust

§   But also brought revision of court’s understanding of the terms ‘vexatious’ and ‘oppressive’

·       If the court itself found it was a clearly inappropriate, proceedings would be vexatious and oppressive

·       This was therefore a doctrine of forum non conveniens, but narrower than

Spiliada

 

The Voth test is still limited to actions being vexatious or oppressive, but gave it new meaning. The ‘clearly inappropriate forum’ test considers the same factors as Goff LJ did in Spiliada but only need to consider own forum’s appropriateness. It is a very insular approach that is out of kilter with other common law jurisdictions and ought to change. HCA (and many other courts that apply Voth) will readily listen to P’s claims – it is plaintiff friendly.

The only way a D will succeed is if they can show the court is clearly inappropriate. This has been said to be exorbitant jurisdiction, allowing Aus courts to adjudicate on matters that other courts should adjudicate. It is a self-focussed approach. The only circumstance in which the Voth test should provide a different outcome to the Spiliada test was where the factors indicated that there was a more appropriate forum for the determination of proceedings but where the court in Australia was not a clearly inappropriate forum.

REGIE NATIONAL DES USINES RENAULT SA V ZHANG

‘The defendant would need to show that…a trial in NSW would be productive of injustice, because it would be oppressive in the sense of seriously and unfairly burdensome, prejudicial or damaging, or vexatious, in the sense of productive of serious and unjustified trouble and harassment’

‘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’ [at 521]

The upshot of applying the Voth test is that Aus courts readily consider matters which probably should be adjudicated somewhere else (if applied Spiliada.) Australian courts quite readily apply foreign bodies of law – exorbitant jurisdiction, but ready access to foreign lex causae.

In Renault v Zhang, the HCA interpreted vexatious and oppressive in a not dissimilar way to Geelong (limited application of Voth in Renault.) Usually D will enter a conditional appearance and then bears the onus of showing the court is a clearly inappropriate forum. In courts where you need leave to proceed and serve against a foreign D, it is up to P to show that the court is not a clearly inappropriate forum.

 

PROCEDURE

The doctrine of forum non conveniens can 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 set aside: cf Henwood v Levesque Beaubien Geoffrion Inc. Forum non conveniens can also be raised in proceedings where the court has jurisdiction as of right, either at common law or under the SEPA. The courts will only stay proceedings in matters that raise issues internal to Australia in ‘very rare’ cases (normally dealt with by transfer under the Cross-vesting Acts.)

BEREZOVSKY V MICHAELS [2000] 2 ALL ER 986

·       House of Lords held trial judge erred in not taking into account a line of cases that established that the place where a tort was committed was prima facie the most appropriate forum for the determination of the dispute

·       This case puts into dispute Templeman LJ’s remarks that the only authority that should be cited to the court in any application for a stay or dismissal on the ground of forum non conveniens was Goff LJ’s speech in Spiliada

If it is possible to analogise from Spiliada to the position in Australia, the only authority that should be referred to the court is the majority judgment in Voth. This sets out the principles by which the discretion to stay or dismiss proceedings is exercised, and therefore the precise manner in which other cases have been decided is rarely relevant.

 

LIS ALIBI PENDENS (SIMILAR PROCEEDINGS IN FOREIGN FORUM)

 

 

Where the defendant in the forum merely applies to have a temporary stay of proceedings pending determination of the proceedings in the foreign place, the principles of Voth do not apply. The court has to consider:

·       Whether the proceedings in the foreign place were commenced first

·       The stage they have reached

·       The effect that determination of the foreign proceedings would have on the proceedings in the forum

If the defendant in the forum applies to either 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 make the proceedings in the forum vexatious or oppressive, then the principles of Voth do apply. Thus the overriding consideration remains whether the forum court is a clearly inappropriate forum for the determination of the proceedings: Sentry Corporation v Peat Marwick.

Traditionally, the existence of identical or related proceedings in the 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: Cohen v Rothfield.

Lis alibi pendens is not in itself a ground to find forum non conveniens. From Henry v Henry factors other than

lis alibi pendens include:

·       Enforcement of foreign judgment in Australia

·       Extent of foreign court’s jurisdiction

·       Relative connectivity of parties with forums

·       Ability of parties to participate in proceedings in relevant forums on equal footing

·       The stage the separate proceedings have reached

·       The costs incurred

 

BUT if foreign proceedings commenced first on the same issue, then primae facie vexatious and oppressive to commence proceedings in an Australian court in relation to the same matter: Henry v Henry (1996) 185 CLR

571. In this case, there were divorce proceedings being litigated in Monaco. One party came to Australia and commenced divorce proceedings in Australia. The proceedings were stayed on the basis of forum non conveniens and was granted on the basis of lis alibi pendens.

To the extent that it signals a scenario that is prima facie 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. 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 discouraged under the principles of Voth.

 

JURISDICTION CLAUSES

1.       Non-exclusive jurisdiction clause

o    Parties agree to submit to the jurisdiction of a place but there is no further agreement precluding either party from suing elsewhere

o    Persuasive

2.       Exclusive jurisdiction clause

o    Parties agree not only to submit to the jurisdiction of the courts of a foreign place but alos agree not to sue in any other place

o    Eg ‘disputes under this contract are to be referred only to the Supreme Court of Queensland)

o    Even when the clause is exclusive, an Aus court will not necessarily use that as a basis for

forum non conveniens

o    Highly persuasive but not necessarily binding on the court

§  Simply becomes one of a number of factors

o    Brandon J in The Eleftheria [1970] 94 at 100

 

EXCLUSIVE JURISDICTION CLAUSES

There is no need for the term ‘exclusive’ to be used for a forum clause to be classified as such, though a well- drafted agreement would use the term: Gem Plastics v Satrex Marine. A plea of forum non conveniens will be harder to sustain if the exclusive jurisdiction clause places the determination of disputes in the forum: Bowport Ltd v Alloy Yachts International.

Traditionally, the classification of a forum clause as an exclusive jurisdiction clause requiring disputes to be dealt with in a foreign place has required the forum court to grant a stay or dismissal of proceedings unless the most exceptional circumstances demanded otherwise.

OCEANIC SUN LINE SPECIAL SHIPPING CO V FAY

·       Brennan J required countervailing reasons to be proved before the court should refuse to stay proceedings brought in breach of an exclusive jurisdiction clause

THE ELEFTHERIA [1970] 94 AT 100

·       In exercising discretion, a court should take into account all of the circumstances of the particular case

o    Where evidence is to be found, and effect of this on expense and convenience of the trial

o    Whether the law of the forum is to apply (choice of law clause?)

o    Connection of parties and degree of connection

o    Merely seeking procedural advantage

o    Whether plaintiff might be prejudiced by having to sue in foreign court

§   Deprived of security for their claim

§   Unable to enforce any judgment obtained

§   Faced with a time bar not applicable in England

§   For political, racial, religious or other reasons

·       Weighing against that factor are a number of factors (reflect what Goff LJ said)

o    If exclusive clause that said to sue in France, these factors suggest to sue in Australia, this might outweigh that even though there is an exclusive jurisdiction clause

LEWIS CONSTRUCTION CO PTY LTD V M TICHAUER SA [1966] VR 341

·       Facts

o    Contract between Victorian corporation and French corporation for construction of a huge crane on a dock on a building site

o    Crane brought over in pieces by ship, assembled and used in Victoria

§   Place where operator sits fell off and killed three people

o    Part of action was breach of contract

o    Clause in contract said ‘in case of litigation…the only competent court was the Commercial Court of Lyon’

o    Relative convenience and expense (particularly of witnesses and evidence’

o    P commenced action in Victoria

·       Held

o    Hudson J held that it was for more than a balance of convenience that the proceedings be tried in Victoria than France

o    Court went through balancing exercise suggested by Brandon J in The Eleftheria

§   Law of the cause is Australia, lex loci delicti is Australia

§   P would have to call many witnesses from Victoria, and D would have to call witnesses from France but would have been insignificant in volume compared with what P would have to provide

o    Combination of these factors meant Vic court found it did have jurisdiction and it would exercise that jurisdiction even though there was an exclusive jurisdiction clause

o    Another question arose here

§   If parties who agree to exclusive jurisdiction clauses and parties freely go about breaching their own contracts, this undermines the basis on which enter into exclusive jurisdiction clause

§   Hague Convention on Choice of Forum Convention which tries to give effect to choice of forum clauses in contracts

·       If we allow a Victorian court to simply ignore the contractual obligations of those parties, actually endorsing a breach of contract

o    This is fine when you follow this process but it doesn’t prevent the D going to the court in France and suing the P in France for breach of contract

§   Perhaps this is part of the balancing process by which parties resolve their dispute

§   Some debate about the extent to which courts should ignore these clauses because of the effect it has on parties contractual obligations to each other

It seems likely that, where a foreign court has allowed litigation to proceed in breach of an exclusive jurisdiction clause, the party who objected to the continuation of the foreign proceedings may be entitled to damages in an Australian court for any loss caused by the breach of contract. Equally, litigants in an Australian forum should be conscious that, if the court allows them to proceed in the forum in technical breach of an exclusive jurisdiction clause, they might still be liable under the law of a foreign place – especially the agreed place for dealing with disputes – for damages for breach of contract.

 

NON-EXCLUSIVE JURISDICTION CLAUSES

It is not an apparent breach of contract for the proceedings to be pursued in the courts of the forum: Akai Pty Ltd v The People’s Insurance Co Ltd. 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 but is nonetheless, a relevant consideration for the court to take into account: Green v Australian Industrial Investment.

 

TRANSFERS

·       At common law

o    Arguable that provisions of the Cross-vesting Acts have effectively ‘ousted’ the application of the common law principles in interstate cases

·       Under its own rules of court; or

·       Cross-vesting Acts ss 5 & 13 (but transferring court may exercise jurisdiction)

o    Transfer made if, s 5

§   There are related proceedings in another court: Bankinvest AG v Seabrook (1988)

§   Court exercising cross-vesting jurisdiction

§   Interests of justice

 

The court gives a great deal of discretion to transfer from one court to another. Voth is not applied when dealing with interstate actions – more of a Spiliada approach.

BHP BILLITON LTD V SCHULTZ (2004) 211 ALR 523 AT 527

Gleeson CJ, McHugh and Heydon JJ

‘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’

An anti-suit injunction is a restraint a court places on another party to stop litigation somewhere else. 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 like imprisonment or sequestration can follow if the proceeding is not discontinued.

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.

CSR LIMITED V CIGNA INSURANCE AUSTRALIA LIMITED (1997) 189 CLR 345

 

 

·       Facts

o    In June 1995 CSR (Australian company) and CSR America (US subsidiary company) and others brought proceedings against Cigna Corporation (US company) and Cigna Australia (Australian subsidiary) in US District Court in NJ

§   Cigna companies obliged to indemnify CSR companies for loss the latter suffered as a result of liabilities they incurred for asbestos-related injuries to third parties

§   Also alleged breaches of the Sherman Act (successful P could recover triple damages)

o    In July 1995, Cigna Aus commenced proceedings against both CSR’s in NSWSC

§   Sought negative declaration – Cigna not liable to indemnify CSR companies in respect of liabilities incurred as a result of any asbestos-related claims made in either Aus or the US

§   Soon after, Cigna Australia applied for interlocutory anti-suit injunction restraining the CSR companies from continuing the NJ proceedings

·       Granted by Rolfe J in August 10, 2010

o    CSR companies then applied for stay of NSW proceedings on ground of forum non conveniens

§   Refused in April 1996

·       Held

o    NSW proceedings should, pending the outcome of the NJ proceedings, be stayed on the ground that they were oppressive

o    Purpose of NSW proceedings had been to prevent NJ proceedings from continuing (purpose merely to prevent legitimate proceedings in the foreign court being continued)

§   Corollary to this conclusion was that the anti-suit injunction should not have been ordered

§   NJ proceedings could not have been vexatious or oppressive, especially in light of special damages available under the Sherman Act

o    Principles relating to the granting of an injunction against a proceeding in a foreign court should be tempered by considerations of comity

§   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

o    Accepted forum non conveniens and that injunction should never have been granted

 

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.

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:

1.       The forum court considers whether it should stay or dismiss the proceedings before itself: Voth

2.       If the forum court decides not to stay or dismiss proceedings, it must decide whether

a.        To require the plaintiff (in the forum) to apply to the foreign court for a stay or dismissal of the foreign proceedings

b.       To grant the anti-suit injunction against the defendant (in the forum), restraining the foreign proceedings

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.

The grounds on which an anti-suit injunction can be granted spring from two sources:

1.       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

2.       There is a separate equitable jurisdiction to grant an anti-suit injunction

o    If the foreign proceedings amount to unconscionable conduct, the unconscientious exercise of a legal right or reach 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: Continental Bank NA v Aeokas Comania Naviera SA

The jurisdiction to grant an anti-suit injunction is one that should be exercised with caution: Société Nationale Industrielle Aerospatiale v Lee Kui Jak (per Goff LJ). It 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.

In Amchem Products Inc v British Columbia (WCB) 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. 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.

However, in CSR, the majority pointed out that even in Amchem this was not a general rule. Nor could it be, when the different circumstances in which an interlocutory injunction could be granted were taken into account. The majority thought 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.

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. The injunction will ordinarily issue to restrain the breach of contract unless the defendant can show strong reasons why it should not: XL Insurance Ltd v Owens Corning.

Parties that continue Australian litigation in breach of a foreign anti-suit injunction will not be exposed to the contempt processes of the relevant Australia forum but may be under the law of the foreign place.

COMMONWEALTH BANK OF AUSTRALIA V WHITE

·       Byrne J found there was good reason for proceedings against Lloyd’s to continue in Victoria even though the proceedings were brought in breach of an exclusive jurisdiction clause in favour of the English courts

·       High Court of England and Wales not satisfied and granted an anti-suit injunction against the P in Victoria to restrain the Victorian proceedings

·       Attempts made by Lloyd’s to have the Victorian proceedings stayed

o    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

·       Held, in VSC, that the stay should be refused

o    Comity did not require it

§   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 as appropriate that the Victorian court prefer its own decision

o    Also remedies available in Australia that English law had not been proved to provide

·       Refusal of the stay would, nevertheless, be no defence to English proceedings for breach of the injunction

CHOICE OF LAW METHOD I

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. 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 a court must decide whether there is a need to invoke a choice of law rule, and how that rule is to be invoked.

REGIE NATIONAL DES USINES RENAULT SA V ZHANG

·       Matter before the court was really about jurisdiction

o    Doesn’t mean NSW court was the only court – France, New Cal and NSW may have had jurisdiction

§   French court has jurisdiction

·       Territoriality according to French law?

§   New Caledonian Court has jurisdiction

·       No territoriality (defendant not within jurisdiction) but tort within forum according to New Caledonian law

§   New South Wales has jurisdiction

·       No territoriality (defendant not within jurisdiction)

·       Rely on ground of jurisdiction claimed in NSW UCPR Sch 6(e) – damages suffered in forum

·       NSW found that it was not a clearly inappropriate forum to hear the matter

o    Whichever court hears the matter has to decide how the matter will be dealt with

§   Has to decide what law to apply to resolve the dispute

 

·       Indicative rules indicate to the court what body of rules to resolve the dispute

·       Dispositive rules are rules that dispose of the matter (lex causae)

The process by which the court determines what the indicative/dispositive rule is called the choice of law method. Thus, the choice of law rule is a jurisdiction-selecting rule.

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 solemnization or the place where the tort occurred) that effectively selects a legal system.

The choice of law method is the method by which court determines whether a choice of law rule is invoked in a particular case. The approach taken is not prescribed by law, and not necessarily always (or habitually applied):

·       Requires one of the parties before the case to raise the issue before the court

·       Quite often it is the defendant, because plaintiff initiates action in forum assuming forum law would apply

There is an element of circularity in the choice of law method – may come into the process at any of the stages. Often the method is determined by area of law (multi-state marriage and property better adapted to method than contract):

·       If the dispute is about tort, fairly obvious to those dealing with matters that it is obvious there is a private international law issue

·       In other areas it is not quite so clear

1.       Identification of a conflict of laws

o    Identification of the possibility that a foreign body of law might apply

2.       Classification of the subject matter

o    Need to conceptually classify the matter as one of contract/tort/property/marriage before you can determine the choice of law rules, and then dispositive rules that apply

3.       The classification of substantive or procedural law

o    Procedural laws are lex fori

o    Substantive laws may be foreign laws

4.       Identification of choice of law rule

o    What is the Australian rule that tells you whether to accept the foreign law

5.       Application of the law of the cause

o    At the end of the process work out whether the plaintiff will succeed on the matter

A choice of law rule only need be invoked if there is a conflict of laws. That is, there needs to be more than one legal system and a different outcome from their application. If the same result would be achieved, it doesn’t matter which law is applied.

This question can only be answered after considering two subordinate issues:

·       Which legal systems are possibly relevant to cases; and

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

The local court must first identify the legal systems that are possibly relevant to the cause. Herein lies the circularity of this method. Local choice of law rules must be used to identify these possibly relevant legal systems. The court must at this point identify which legal system would be relevant on application of any choice of law rule currently obtaining in the forum. This process merely eliminates the need to consider laws that are on any view irrelevant.

Once the possibility of 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.

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.

·       A true conflict is a difference between the application of laws and requires a choice of law rule to break the deadlock

·       A false conflict is where either outcome would be the same under each legal system OR no evidence of the other legal system and so it is presumed to be the same as that of the forum

GORE V OCTAHIM WISE LIMITED [1995] 2 QD R 242

 

·       Once it was determined that the Hong Kong Bills of Exchange Ordinance was substantially similar to the Bills of Exchange Act 1909 (Cth), Williams J was able to decide the case in accordance with the latter

·       Subsequent reference to a choice of law rule would have added nothing to the ultimate determination of the proceeding

Example – Mortensen page 167

The Family Court recognises the identification of any possible alternative legal system by any choice of law ie domicile, citizenship, place of marriage. The choice of law rules of Australia need to be considered generally to determine which possibilities might ‘match’ – only place of marriage and domicile. This is simply a step to eliminate those legal systems which clearly have no possible relevance.

Following this, the internal rules of each possible legal system need to be considered (ie choice of law rule ignored for the present). Under Australian law, Rupert and Flavia would have a valid marriage. Under Ruritanian law, the marriage is not valid and a court is unlikely to even consider an application, as no application for annulment or divorce. If Hentzau included as a possibility, it is likely to be invalid.

 

The process of classification requires the court to allocate the subject matter of the proceeding to one of the established choice of law classifications. Where a conflict exists, the need arises to apply a choice of law rule. However, choice of law rules differ according to the classification (characterisation or qualification) of the matter under dispute. That is, is it a property matter/contractual matter/tortious matter etc. The actual classification may take place late in the proceedings when it becomes evident there is a PIL issue.

MACMILLAN INC V BISHOPSGATE INVESTMENT TRUST PLC (NO 3) [1996] 1 ALL ER 585

 

·       Facts

o    Matter was a dispute between P and three companies regarding ownership to companies incorporated in New York

o    English judge immediately recognised there was a conflict of laws issue because the shares are in companies in New York

§   However must classify the matter in dispute

·       P was alleging they were the owners of the shares and there was a claim for restitution

o    Based on claim for breach of trust

§   In England, breach of trust is place of breach

·       D agreed there was a breach of trust but argued the dispute was that the interest they had to the shares was a priority because they were bona fide purchasers

o    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 – New York

 

	Claim (restitution)	Defence (priorities)
Classification	Breach of trust	Property
Choice of law rule	Law of place where breach occurred	Law of place where property is situated (lex situs)
Law of cause	England	New York
Outcome	Macmillan recovers	Macmillan fails

·       Held

o    P argued the court should classify the matter according to the issues P raises

§   This argument was rejected

o    Held it was the ‘issue’ that was to be classified

§   Classification should occur by way of what the actual dispute between the parties is

·       In this case, the dispute was not about breach of trust because the defendant admitted the breach of trust

§   The court will classify the matter

o    Classification is a matter of the lex fori

 

The classification is by reference to the forum’s classifications. However, classification of property as movable or immovable is usually classified according to the law of situs.

APT V APT [1974] P 127

·       Marriage of wife (in England) by proxy in Argentina

·       Classification if issue as either

o    Formal validity of marriage (Argentina – valid)

o    Essential validity/capacity to marry – domicile (England – invalid)

·       First step is to recognise there is a foreign element involved

·       Second step is to characterise the matter

o    Formal validity – procedure of getting married

§   Was the person who conducted the marriage qualified

§   Were the witnesses appropriate

o    Essential validity – ability as an individual to marry

·       This isn’t about the capacity to marry, it is about the process of being married

o    As soon as the classification was made, the case was decided

·       The method used was first to analyse the role and juridical purpose of the rule, and to take that into account when deciding how to classify it

LEE V LAU [1967] P 14

·       Under Hong Kong law a husband had a wife and any number of tsipsis (concubines)

·       Concubines have a right to succeed property and all children are legitimate for the purposes of Hong Kong

·       The law of Hong Kong said that it was a monogamous marriage

·       Classification is a matter of the lex fori

o    Dispute about rights to inherit property in Australia, therefore Australian law will classify

o    Australia classified as polygamous – classification according to the law of the forum

 

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.

If the subject matter to be classified is one of substance, then a choice of law rule is used to identify the law of the cause. If the subject matter is procedural, then the law of the forum applies exclusively.

The process of distinguishing between substance and procedure was variable and usually based on the rights/remedies distinction. That is rights were determined by the substantive law and remedies by the procedure of the court.

JOHN PFEIFFER PTY LTD V ROGERSON (2000) 203 CLR 503

·       Appeal from ACT that involved a workplace accident in NSW

o    NSW statute placed a cap on damages that could be recovered

·       Question was whether, from the territory court’s perspective, the NSW cap on damages was procedural

·       HCA took a different approach entirely

·       Procedure was held to be those ‘which are directed to governing or regulating the mode or conduct of court proceedings’

·       Callinan J

o    Held procedure to comprise only ‘laws and rule relating to procedures such as the initiation, preparation and prosecution of the case, the recovery processes following judgment and the rules of evidence

·       Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ

o    Two guiding principles should be seen as lying behind the need to distinguish between substantive and procedural issues. First, litigants who resort to a court to obtain relief must take the court as they find it. … Secondly, matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or to adopt the formulation put forward by Mason CJ in McKain, ‘rules which are directed to governing or regulating the mode or conduct of court proceedings’ are procedural and all other provisions or rules are to be classified as substantive

·       Kirby J

o    Limited procedural rules to those that ‘will make the machinery of the forum court run smoothly as distinguished from those determinative of the rights of both parties’

·       All judges agreed that limitation periods were substantive

·       In dispensing with the right-remedies distinction, procedure is back to the procedures of the courts

·       HCA thus saying that if there is a Renaul v Zhang situation where the likely law applied is New Caledonia or France, that body of law will resolve a lot of issues

o    Procedure is only the rules that govern a case

o    Anything that governs rights and duties is substantive

o    Giving foreign jurisdiction greater effect

·       Procedure is therefore to be read narrowly

 

Nevertheless, uncertainties still prevail:

·       Law of evidence – likely to be procedural

o    Some rules of evidence are so intricately connected to the matter before the court they may not be

·       Burden of proof – likely to be procedural

·       Presumptions – like evidence

o    See Re Cohn [1945] Ch 5

·       Statutes of fraud – procedural in the past but now open to question

·       Remedies – largely procedural in the past but now open to doubt

·       Damages – heads of damage are regarded as substantive while quantification (such as caps) regarded as procedural until Pfeiffer

o    Some clarification now evident from Regie Nationales des Usines Renault SA v Zhang (2002) 210 CLR 491; BHP Biliton Limited v Schultz (2004) 211 ALR 523; Neilson v Overseas Projects

Corporation of Victoria Ltd (2005) 221 ALR 231

§   In Regie majority willing to reserve for further consideration whether Pfeiffer applies for foreign tort

o    Australia was willing to trust other State courts but not foreign courts with respect to damages

·       Limitation periods – regarded as procedural in McKain v RW Miller & Co (South Australia) Pty Ltd

(1991) 174 CLR 1

o    Legislatively overruled in each State and Territory (eg Choice of Law (Limitation Periods) Act 1996 (Qld)), so that if the law of the cause is that of another State or Territory, that State or Territory’s limitation period is to apply

§   Limits forum shopping

§   Effect of Pfeiffer is to endorse this approach – ie limitation periods as substantive law

REGIE NATIONAL DES USINES RENAULT SA V ZHANG (2002) 210 CLR 491, 520

 

Per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ

In Pfeiffer, reference is made to the difficulty in identifying a unifying principle which assists in making the distinction, in this universe of discourse, between questions of substance and those of procedure. The conclusion was reached that the application of limitation periods should continue to be governed by the lex loci delicti and, secondly, that:

…all questions about the kinds of damage, or amounts of damages that may be recovered, would likewise be treated as substantive issues governed by the lex loci delicti

We would reserve for further consideration, as the occasion arises, whether that latter proposition should be applied in cases of foreign tort.

Once the issue is classified, then the choice of law can be identified. The court will usually have identified the result of the application of a foreign law as the law of the cause, so its application is simply then endorsed. But what happens when, applying the foreign law as the lex causae, we include the foreign choice of law rules, which then refers the choice of law question back to the forum or even to another state?

Example – Mortensen page 167

Before moving onto classification, the court recognises that the substantive law of the countries is different. It is unlikely a choice of law rule would lead to Hentzau. In classifying the dispute, under common law formal and essential validity is required. If formally valid, Australian law applies (marriage in Australia.) However, for Rupert & Flavia the issue is the essential validity of the marriage and is governed by the law of the domicile of the parties eg Ruritania.

Ruritanian law about what you can bring before the court – classify as procedural or substantial. The mechanism by which the court is asked to recognise validity or invalidity – it is likely Australian courts won’t take this into account because it is a matter of procedure. However, the law about sister-in-laws is substantive.

 

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). If choice of law method has been followed closely, 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 legal system.

CHOICE OF LAW METHOD II

 

 

1.       Identification of a conflict of laws

2.       Classification of the subject matter

3.       The classification of substantive or procedural law

4.       Identification of choice of law rule

5.       Application of the law of the cause

·       Dépeçage

·       The incidental question

·       Renvoi

·       Exclusion of unacceptable laws

Dépeçage means to divide. In multi-state cases, it 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.

There are two or more issues in dispute, each of which gives rise to a conflict of laws. Dépeçage admits that each issue is dealt with by a different choice of law rule, and so a different law of the cause. The result is one which probably not that of each legal system alone. It is marked in contract.

Validity of marriage

·       Formal validity and essential validity

·       Form of dépeçage

o    Dividing issues into different matters each which have separate choice of law rules and will take you to separate dispositive bodies of law

Contract governed by two separate choice of law rules

·       Deals with a range of complex issues and may find that in one aspect that contract is to be governed by the law of State A and in another respect is to be governed by the law of State B

The incidental question is where there are two issues in dispute, each of which gives rise to a conflict of laws. If normal choice of law rules are applied, they would be determined in accordance with different choice of law rules. 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 – a main and a preliminary issue. The incidental question makes the preliminary issue incidental to the main issue even in circumstances where they could theoretically be dealt with separately.

SCHWEBEL V UNGAR (1964) 42 DLR (2D) 622

·       Facts

o    U born in Hungary (domicile of origin) and married W in Hungary

o    Both Jewish and had to flee Hungary and decided to go to Israel after the war

o    As they travelled through Italy they went through the Jewish religious divorce process – Gett

§   Requires one party to denounce another party

§   Only a religious ceremony – does not occur in court

o    Both arrived separately in Israel and became domiciled in Israel

o    Some stage later, U travelled to Canada and meets and marries S

o    S wants to end the marriage and applies to the court for a declaration that the marriage is void on the basis that U already married

§   The Gett was not effective

·       Issue

o    The main issue was whether U had the capacity to enter the second marriage

§   Normally a question for the lex domicilii at the time of the second marriage, the law of Israel

o    Was the divorce by ‘Gett’ effective?

§   Normally a question for the lex domicilii at the time of the divorce, the law of Hungary

o    In order to determine whether U had the capacity to marry, had to determine whether the divorce was effective

§   At the time of getting divorced in Italy, domiciled in Hungary

 

 

·       Held

o    According to the preliminary question, in the First Court in Canada, the Chief Justice said this was a classic case of dépeçage

§   If applied the law of Hungary, the divorce is not effective

·       Hungarian law did not recognise divorces like the Gett, had to go to court

o    If this was the case she did not have the capacity to marry

o    According to the law of Israel, persons who are already married cannot get married again

§   If you deal with these issues separately, the marriage between S and U would be annulled

 

o    The Court of Appeal disagreed with the lower court

§   The main question is whether U had the capacity to enter into this marriage

·       There is a preliminary question about the divorce

·       If the issues are separated into two, would deal with two different choice of law clauses

o    The one issue was really an incidental question to the main issue

§   Once you determine what is actually in dispute and determine the choice of law that follows on from that classification, should use that choice of law for the entire matter

·       Ignore the second choice of law rule

·       Israeli law should determine all issues that are incidental to the main issue

§   Treat the preliminary issue as incidental to the main issue, and deal with both issues by the law governing the main issue ie the incidental question technique

·       Determining that matter as an actual court in that country would

o    Have a judgment that reflects the kind of judgment that would occur in any one single jurisdiction

HAQUE V HAQUE (NO 1) (1962) 108 CLR 230

·       Incidental question approach appears to be followed in Australia

·       Facts

o    Muslim Indian national who retained Indian domicile but spent time in WA

§   When arrived in Australia was already married, but took a second wife in WA

§   Could not marry according to the laws of Australia but was able to in a traditional Muslim ceremony

·       As part of the ceremony, entered into an agreement that said children of that marriage would be legitimate and would inherit under him

o    When he died he left property to his brother but none to the children of his first or second marriage

·       The question was whether these children could succeed under the law that would govern his succession both testate and intestate

·       Held

o    The choice of law rule that applies to determine succession to property is the lex loci domicile

o    Indian law would govern the validity of his children to inherit under him

§   Their ability to inherit depended on whether they were legitimate

§   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

o    Main question was whether the children of the second marriage were entitled to share in the testator’s movable property

§   Governed by the law of the place where the testator was domiciled at the time of his death

o    Preliminary question was the validity of the children as legitimate children and the marriage entered into

§   This question was incidental to the succession question

o    Recognised not the polygamous marriage but the effects of that marriage because at the heart of the matter was the succession question

Revoi is a conflict of conflict rules ie choice of law rules. 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.

·       A remission is where the foreign choice of law rule remits to the law of the forum

·       A transmission is where the foreign choice of law rule transmits to a different foreign law

 

COLLIER V RIVAZ (1841) 2 CURT 855; 163 ER 608

·       Facts

o    R born in Ireland but spent most of his life in England

o    Towards the end of his life he moves to Belgium and dies there

o    R left will and number of codicils within will (adds/detracts from will)

o    Parties were unhappy with the contents of the will

§   Challenged the validity of four of those codicils in an English court

§   Lex fori is England and English law

·       The court that considers this issue recognises, probably because the parties have raised it, the fact there are two legal systems involved (Ireland could also possibly still be there)

·       The court looks at the contents of the law that would apply to those facts to see if there was a conflict

o    If English law, codicils valid

o    If Belgian law, codicils invalid

·       Held

o    Recognised conflict of laws

§   Look at choice of law rules to resolve

·       Also look at Belgium’s choice of law rules – the law of the place where domiciled at death will determine the validity of the will and will inherit property under those rules

o    Domicile at death was Belgium

·       England’s choice of law rule is the law of the domicile at his death

o    Therefore, codicil invalid

§   What is meant by Belgian law?

·       Does this just mean Belgian rules about succession or Belgian choice of law rules as well?

o    When Belgian law says succession is determined by the lex loci domicilii, domicile is interpreted differently

§   England – where you make your home

§   Belgium – your nationality

·       R kept English citizenship when he moved to Belgium

o    If Belgium had to deal with the validity of the will, would apply the law of England

§   English courts need to decide how the Belgium court reacts to the situation where the matter will be turned back to them

·       Belgium court would reject the remission and apply English law

§   When you apply a choice of law rule which leads to Belgium, it requires you to not only deal with Belgium’s internal laws about codicils but Belgium’s choice of law rules

·       This is where there is a conflict of conflict of law rules

Ignoring the renvoi means the forum’s choice of law rules are not permitted to ‘pick up’ the choice of law rules of a foreign forum, so it disregards a potential remission or transmission. This may lead to deciding the matter differently to the way another country might deal with a matter.

 

 

 

 

 

 

In Collier v Rivaz, England might end up applying Belgian law. If the matter were actually litigated in Belgium, a Belgian court, if it ignored the renvoi, would apply English law. The two entities would have different outcomes – this encourages forum shopping. If Belgium’s conflict of law rules was lex loci domiclii at the time of death there would not be a problem. Where the internal laws are the same, the forum’s laws are applied ie England would have recognised Beglian law was the same.

The foreign law, according to its own terms, does not give an answer. Accordingly, the forum’s choice of law rule has not identified an appropriate law of the cause, and the forum’s choice of law method fails. Therefore the forum’s internal law is applied by default. This theory is the same as ignoring the renvoi if it arises.

 

In Collier v Rivaz England’s choice of law rule was domicile at time of death. Belgian law either remits the matter back to England or transmits it onto Ireland, but doesn’t give an answer. This is actually simply

recognising the conflict of conflict of law rules. Assume this jurisdiction doesn’t help you to resolve the issue and the internal rule is simply applied. The effect is the same as ignoring the renvoi. However there is a slightly different effect in that the forum is applying its own rules in default. Under désistement, a forum would actually look at the choice of law rules of the other jurisdiction.

 

This is one of the most common ways of reacting to the renvoi – often called the single renvoi. On only one occasion will another country’s choice of law rules be considered.

The forum court refers the question to the foreign forum’s choice of law rules. If the law of the foreign forum 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. This is the result the law of the foreign forum intended.

 

 

If in Collier v Rivaz the choice of law rule says domicile at the time of death, considering the internal and choice of law rules – choice of law says nationality at time of death eg England. Therefore, would go back to English laws, but only the internal rules. The result achieved in a sense is the same that would have occurred had the matter been decided in the Belgian court, so there is some elimination of forum shopping. However, the way in which Belgium reacts to renvoi has not been considered – accepted that Belgium either goes to the internal

rules of England/Ireland, but not what Belgium’s reaction to that is.

The single renvoi theory has a different result in the case of a transmission. The forum court accepts the foreign court’s transmission and applies the internal law of the third forum as the law of the cause.

 

This often happens for remission, not transmission. For this method there is only one go at the renvoi eg if a choice of law rule says to apply a foreign body of rules, it will not apply internal rules to the matter. The result is the same as ignoring the renvoi, with the forum difference that the foreign choice of law rule is recognised, though not applied.

If the law of the foreign forum remits the question to the law of the forum, the court in the forum rejects that remission and applies the law of the foreign forum as the law of the cause.

If the law of the foreign forum transmits the question onto a third country’s laws, the forum court rejects the transmission and applies the law of the foreign forum.

 

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 the foreign forum had adopted. This approach emphasises consistency in outcome with the foreign court and therefore discourages forum shopping. It adopts the result in the case the foreign forum would have reached, having applied its own choice of law rule, and its particular solution to the problem of renvoi.

When there is a choice of rule that sends a forum to another jurisdiction, should pretend to be a judge in that other jurisdiction and do exactly what that other jurisdiction would do. This takes into account internal rules, choice of law rules and the other jurisdiction’s attitude to renvoi.

 

If the foreign court ignores the renvoi, it – the foreign court – will apply the internal law of the forum, F. The forum court will apply the law of F.

If the foreign court accepts the renvoi, it – the foreign court will apply its own internal law, X. The forum court will apply the law of X.

If the foreign court rejects the renvoi, it – the foreign court – will apply the internal law of the forum, F. The forum court will apply the law of F.

NEILSON V OVERSEAS PROJECTS CORPORATION OF VICTORIA LTD (2005) 221 ALR 213

 

 

·       Facts

o    N domiciled in WA – wife of an employee of a Vic company

o    Vic company had contract for work to be done in China

o    N and husband go to China and Vic company have provided flat which has a staircase with no banisters

§   N asks for it to be fixed

§   Company renting the flat say they will fix it but never do

§   N falls and is injured because of the negligence in China of the Vic company

o    Limitation period in China expired so brings actions against husband’s employer in WA

·       Held

o    More than 1 jurisdiction involved – WA and China

o    This is a matter of tort – lex loci delicti

§   China’s law will apply – if there is no difference just apply WA law because there is no conflict of laws

o    Question is where Chinese tort law that applies, including limitation period, do you also have to look at Chinese choice of law rules?

§   Double renvoi

§   Aus conflict of law rule for tort is lex loci delicti

·       It is the same in China, but there is an exception

o    Even if the tort occurred in China, if D and P were both foreign nationals of the same nationality, it is the law of the nationality that will apply

o    China’s attitude to renvoi

§   On evidence before the court, they found that a Chinese court would ignore the renvoi and would simply apply a 6 year limitation period

§   Apply Australian double renvoi theory and N succeeded

o    HCA said they can apply this theory across classifications

§   On the facts it is limited to tort – at least for tort, Australia would adopt a double renvoi theory

§   Eliminates forum shopping

 

·       Ultimately the party that was going to pay was the NSW insurer

·       Giving effect to Chinese choice of law rules doesn’t give a proper answer

Single versus double renvoi compared

Single renvoi

 

Double renvoi

 

There are a number of places in the judgment where the application of the double renvoi theory is phrased so broadly it could apply to a range of classifications. There are a number of commentators who suggest this should not be done. A significant body of case law does apply double renvoi theory, but with regard to succession to property.

RE ANNESLEY, DAVIDSON V ANNESLEY [1926] CH 692

 

·       Facts

o    Testatrix died in France in 1924 leaving a will disposing of her movable property

o    British subject domiciled in France at the time of her death

o    British internal law (dispositive rule) – will was valid

o    French internal law (dispositive rule) – will party valid

§   Only 1/3 of estate could be dealt with by will

§   Other 2/3 had to be distributed to the testatrix’s children

o    Conflict of internal rules

o    English choice of law rule

§   Succession of movables determined by law of the place where the deceased was domiciled at time of death

o    French choice of law rule

§   Succession of movables determined by law of the place where deceased was a national at the time of death

o    Choice of law rules for succession to property in England different to France

o    If apply single renvoi, then the English court would apply both the internal and choice of law of France

§   Choice of law rule would remit the matter back to England

§   The will would be valid

·       Held

o    English court applied double renvoi

§   The English court put itself in the shoes of the French court

·       Considered both its internal rules, choice of law rules and its attitude to the conflict of choice of law rules

·       French court would have applied English law, but English law would have sent the matter back to France

o    France would accept the renvoi

§   The court was satisfied France’s attitude was to adopt a single renvoi theory

§   On that basis, the English court found the will to be valid to 1/3

 

RE ROSS, ROSS V WATERFIELD [1930] 1 CH 377

·       Facts

o    English national leaves will which is contested

o    Deceased domiciled in Italy

§   In Italy, have to leave half of property to son

·       Held

o    English court adopted double renvoi theory

o    Italian court would apply its internal rule and choice of law rule as well

o    The court found Italy rejects the renvoi – English court applied English internal rules

§   In terms of a remission, will always determine based on nationality at death

 

Foreign court theory assumes the common law does not have a solution to the problem of renvoi. It assume that the foreign country does have a solution to the problem of renvoi: Re Duke of Wellington [1947] Ch 506.

It does not always apply the foreign solution to renvoi. It is sometimes the foreign solution as adjusted by the law of the forum: Simmons v Simmons.

SIMMONS V SIMMONS (1917) 17 SR (NSW) 419

·       Led to similar position in Annesley

·       English national domiciled in France (New Caledonia)

·       Question was what (as a British subject) was the deceased’s national law applicable to a question of intestacy?

·       Evidence before the court suggested the French court would reject the renvoi

o    Nine years later, evidence suggested French court would accept the renvoi

·       Relying on evidence before the court as to how a foreign court would act

o    Outcome achieved is not necessarily the same as if a matter was heard in the foreign court

§   Only relying on evidence before the court

·       In many of these cases have an English court applying a foreign choice of law rule which refers you to nationality

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. 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 laws has any close symmetry to the true position of the foreign law.

·       Unrecognised states

·       Penal laws

·       Revenue laws

·       Expropriation laws

·       Foreign governmental interests

·       Public policy

 

When the law is something which is really about a foreign government trying to effect its public laws.

ATTORNEY-GENERAL FOR NEW ZEALAND V ORTIZ [1982] QB 349

·       Attempt by NZ government to get Maori carvings back from Ortiz who was a collector of cultural heritage on basis that he had smuggled them out without an export permit and those goods were forfeit to the State

·       House of Lords said trying to give effect to a government statute

·       Because body of law is giving effect to a government interest, will not give effect to it

 

ATTORNEY-GENERAL FOR THE UNITED KINGDOM V HEINEMANN PUBLISHERS PTY LTD & WRIGHT (THE ‘SPYCATCHER’ CASE) (1987) 10 NSWLR 86; (1988) 165 CLR 30

·       Employee breached employment conditions – not to speak about matters governed by the Official Secrets Act

·       Trying to give effect to government interest in effect to giving effect to Official Secrets Act

Ability or discretion of a court when according to choice of law rules have to apply body of foreign dispositive rules, will not apply foreign dispositive rules if they infringe some Australian public policy.

·       To enforce the foreign law is seriously detrimental to the interests of the forum

·       To enforce the foreign law would cause injustice in the circumstances of the case

·       The content of the foreign law is morally unacceptable (including that it is in breach of public international law to the extent that public international law conforms to domestic law)

OPPENHEIMER V CATTERMOLE (INSPECTOR OF TAXES) [1976] AC 249

·       Body of laws that choice of laws would have led to would require court to give effect to laws in Nazi Germany to prevent Jews from owning property

·       If choice of law rules take us to a body of laws that are Nazi anti-Semitic laws, will not apply those laws on the basis that they are against public policy

KUWAIT AIRWAYS CORPORATION V IRAQ AIRWAYS CO [2002] 3 ALL ER 694

·       Lord Hope of Craighead (at 247)

o    It would seem therefore to be contrary to principle for our courts to give legal effect to legislative and other acts of foreign states which are in violation of international law as declared under the Charter of the United Nations

·       The majority held that Resolution 369 offended public international law and English public policy and therefore wouldn’t be applied

o    The majority did not then conclude that Iraqi law was inapplicable, but that the Iraqi law of usurpation, without the overlay of the confiscatory decree, was still to govern the claim

The content of foreign law is treated as a question of fact, not law. Therefore, it must be pleaded and proved by evidence. The onus of proof lies with the party who claims that the law of the cause differs from the law of the forum.

It is not the foreign law that is actually before the court, but the foreign law as presented and read by expert witnesses, and as adjusted by the procedural law of the forum, that is used by the forum court. The fact that it is open for the parties to either plead and prove, or ignore the potential application of, foreign laws makes the choice of law method optional. It is only invoked if one of the litigants wants it.

Foreign law is essentially facts seen through the eyes and procedures of the forum. A party is required to raise foreign law cf Damberg v Damberg (2001) 52 NSLWR 492 where parties were not allowed to agree to facts that weren’t facts.

Failure to plead, or to prove results in:

·       Presumption that the foreign law is the same as that of the forum

·       The law of the forum applied in default where the foreign law is not proved

PERSONAL CONNECTING FACTORS

Many choice of law rules use a personal connecting factor to determine the law of the cause. Eg choice of law rule for intestate succession to moveables is the law of the place where the deceased was domiciled at time of death.

Some choice of law rules are not dependant on a personal connecting factor. Eg Choice of law rule for intestate succession to immovables is law of the place where the immovable is situated. Also, the choice of law for tort is the place where the tort occurred.

 

Domicile is of a Roman law origin. In Australia there is a combination of domicile and territorialism. A person is subject to Australian public law absolutely – it doesn’t matter who they are. However, for certain private purposes, the fact you are Australian doesn’t mean you have forgone this body of law.

·       Domicile

·       Citizenship (or nationality)

·       Residence

 

A person can only have one domicile at any one time. In Australia, there is no difference between nationality and citizenship. When a foreign state uses nationality, it is quite often the case they mean something closer to citizenship.

 

Domicile is a common law concept (and not used in this form outside the common law world.) Domicile at common law has to some extent been amended by legislation – Domicile Act 1982 (Cth), and Domicile Act 1981 (Qld). The Domicile Acts commenced on 1 July 1982 and are entirely prospective. If domicile needs to be determined prior to 1982, common law is applied.

Types of domicile

·       Domicile of origin

·       Domicile of dependence

·       Domicile of choice

 

Each person has, at the one time, only one domicile for any one purpose (but has both State and federal domicile for different purposes): Lloyd v Lloyd [1962] VR 70.

RE BENKO DECEASED [1968] SASR 243

·       Hungarian came to Australian and acquired Australian domicile but didn’t acquire permanent or indefinite presence in any one state

·       For purposes of State legislation, the court said that if can’t identify which state is domiciled out, has to still have a domicile of origin in Hungary

·       Cf Domicile Acts – the person ‘has for the time being the closest connection’

A person’s domicile of origin is ascribed at birth. The common law rule is that a legitimate child takes father’s domicile at time of birth, and an illegitimate child takes mother’s. Foundlings take domicile where found.

If a marriage is annulled, at common law a child became illegitimate. Under s 91 Marriage Act 1961 (Cth) a child is legitimate if either parent had reason to believe in validity.

Frrom 1 January 1979, removed illegitimacy – s 3 Status of Children Act 1978 (Qld). The relationship between every person and his father and mother shall be determined irrespective of whether the father and mother are or have been married to each other. The problem with this section is that it then didn’t say what domicile or origin a child would have been regarded as illegitimate would take – the parent with whom they are staying.

At common law, the domicile of origin is only replaced when:

·       Clear evidence of new domicile

·       Always capable of being revived: Udny v Udny

 

The Domicile Acts abolished the rule of revival (but still applied if domicile needs to be determined at a date prior to 1982.) For any point after 1982, cannot reacquire your domicile of origin – not a revival, simply a domicile of choice.

The doctrine of revival has been abolished under s 7 Federal Act and s 6 State Act (as at 1 July 1982).

UDNY V UDNY (1869) LR 1 SC&DIV 441

 

·       Facts

o    In England, racked up debt so goes to France

§   Gives up English domicile

§   Lives in France only for the purpose of evading his creditors

§   Returns after they won’t pursue him

·       Never acquires domicile of choice

o    Question whether the son was legitimate or illegitimate

§   Depends on the domicile of the father

·       Scotland, England, France

§   Had to give up his English domicile to leave, but never acquired French domicile

·       Held

o    Because he had lost that domicile of choice and not acquired another, there was a vacuum

o    Simply applied domicile of origin – revived

§   Scottish law would determine whether the child was legitimate

Where a person does not have the legal capacity to acquire a domicile of choice, that person’s domicile is known as a domicile of dependence. For minors, domicile follows that of their parents until majority. For married women, at common law their domicile depends on their husband’s: AG (Alberta) v Cook [1926] AC

444. Abolished by s 6 Federal Act; s 5 State Act. For the mentally ill, domicile freezes as the time of incapacity arose. If incapacity arose in minority, domicile depends on relevant parent’s, even after majority is reached.

Domicile of choice requires two factors:

1.       Presence (or factum)

2.       Intention (or animus manendi)

For presence, length of time is immaterial, bare presence is sufficient. If there is a dispute, you have to adduce evidence of what your intention is.

WHITE V TENNANT 8 SE 596 (1888)

·       Residence in Pennsylvania – sufficient to show that the deceased had a chosen domicile there – was established immediately once he had crossed the border from West Virginia

MARRIAGE OF FERRIER-WATSON AND MCELRATH (2000) 155 FLR 311

·       Factum required residence in the new place

·       The husband, who claimed to be domiciled in Australia and, on that basis, entitled to apply for a divorce, could not have an Australian domicile

·       Although he had been present in Australia, he had not established residence by the time he made the application

·       Held length of a lawful presence in the new country was immaterial

·       Factum can amount to a bare presence in a place that is intended to be home

Intention (or animus) at common law is an intention to reside permanently in the place. Intention of leaving domicile of origin in itself is insufficient, as is intention to acquire a new domicile in the future. It must be freely chosen ie not a duty – foreign posting, relief from illness, escape creditors. However, this can be overridden by other factors – it is just that this in itself will not show a new domicile.

An intention to reside permanently or indefinitely in the new country or State is required: s 10 Federal Act; s 9 State Act. The Acts thus introduced another element – indefinitely instead of permanency. You don’t have to envisage being there forever, but have to be there indefinitely. There is no limit to factors which could go to determining animus.

RE FURSE DECEASED; FURSE V INLAND REVENUE COMMISSIONERS [1980] 3 ALL ER 838

·       When he died, ability to leave property became subject to domicile at death – England or New York

·       ‘If unable to manage farm in England, would move to house in New York’

·       Question was whether he intended to remain in England indefinitely

o    Was that contingency likely to occur, if it was and he envisaged leaving England he didn’t have an English domicile

·       Contingency unlikely to eventuate and therefore no real limitation on acquiring domicile in England

 

OSVATH-LATKOCZY V OSVATH-LATKOCZY [1959] SCR 751, 19

·       Lived in Canada but declared that he would ‘go back to Hungary if the Russians were out of Hungary’ but also that there was ‘no hope or expectation that political conditions would permit return’

·       Never really envisaged being able to go back to Hungary

·       Contingency unlikely, so domicile of choice as Canada

·       Canadian residence likely to be indefinite

 

IRC V BULLOCK [1976] 3 ALL ER 353

·       On retirement from RAF, return to Nova Scotia, but wife objected

o    Return dependent on changing her mind or her predeceasing husband

·       Knows he won’t be indefinitely in the UK

·       Court said his intention to remain there was quite clear

o    Sufficiently definite from preventing him from acquiring a domicile of choice in England

 

MARRIAGE OF FERRIER-WATSON AND MCELRATH (2000) 155 FLR 311

·       Residence is the very best evidence of required intention

·       No limit to factors – includes for example, purchase of property, extent of business dealings, acquiring nationality

·       Fact that you live in this jurisdiction is the best evidence of the fact you have acquired a domicile in this jurisdiction

Refugees and temporary residents are capable of having a domicile of choice in Australia. Australian authorities suggest illegality is a bar to domicile of choice. The fact you can show presence and intention to reside in a place means people like refugees and illegal immigrants can acquire a domicile of choice. Refugee in Australia tends to suggest you are awaiting to return to a country – reality is that many refugees don’t intend to return. Common law only requires presence and intention, doesn’t say anything about illegality. However the fact that at common law one can acquire a domicile doesn’t affect your public law obligations as an illegal immigrant.

MARK V MARK [2005] 3 ALL ER 912

·       Establishing jurisdiction in divorce proceedings between couple originally domiciled and married in Nigeria

·       Woman was an illegal immigrant

·       English court said for the purposes of marriage, she had the intention to reside in the UK indefinitely, she was in the UK, therefore acquired UK s her domicile

·       Australian citizenship

·       Foreign citizenship (as recognised by Australian law)

·       Dual citizenship

Initially there was only British subject status. The Australian Citizenship Act 1948 (Cth) created the additional status of Australian citizen. British subject status was abolished for Australian citizens in 1981, s 37 British Nationality Act 1981 (UK) – Australian citizens are ‘Commonwealth citizens’ for the purposes of UK law.

The Australian Citizenship Act 2007 (Cth) lists five grounds:

·       Birth

·       Adoption

·       Descent

·       Grant

·       Residence

·       Renunciation

·       Revocation by minister eg conviction of certain offences

·       Service in hostile armed forces

·       Children of responsible parents who cease to be citizens

 

Foreign citizen may be important if foreign citizen has connecting factors with some body of law we have to apply eg in Oppenheimer when the laws of Nazi Germany said Jews cannot be citizens, they refused to recognise that body of law.

The general rule is that Australian law recognises that a person has a foreign citizenship (or has lost such citizenship) when the relevant foreign law recognises that the person is a citizen: Sykes v Cleary (No 2).

The exception is that Australian law does not recognise the foreign citizenship when the foreign lwa does – the person has taken reasonable steps to discharge the foreign citizenship: Sykes v Cleary (No 2).

SYKES V CLEARY (NO 2) (1992) 176 CLR 77

·       Facts

o    Federal by-election

§   2 candidates were originally from Greece/Switzerland

§   Both were born overseas and were overseas nationals because of their birth, had both taken up Australian citizenship

o    At the time they took out Australian citizenship in oath was requirement that renounce allegiance to foreign country

§   Under Australian law, foreign national cannot stand for Parliament

o    Laws of Greece/Switzerland allowed them to only renounce their citizenship based on application

§   Neither of these candidates had done that

·       Held

o    HCA ruled that both of these candidates were still candidates of the foreign countries and therefore could not stand for parliament

§   They had not taken reasonable steps to renounce their citizenship

o    There are circumstances where it might not be possible to renounce their citizenship

o    If there are no reasonable steps to renounce, even if foreign country recognises Australia will not

Residence is unusual as a connecting factor but it does arise eg formal validity of a will can be determined by the law of the place of habitual residence. There are variable terms – ‘residence’, ‘ordinary residence’, ‘habitual residence’. It is probably ordinary residence that indicates the most permanent attachment.

Resident – uncertain whether a person’s presence must have some degree of relative permanence: Re an Infant [1981] Qd R 225; cf Re Taylor; ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194. Some continual presence there is necessary – common sense approach to what residence is.

Ordinary residence: Akbarali v Brent London Borough Council [1983] 2 AC 309, 343, 4 per Scarman LJ

“… a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration ….”

Habitual residence is used by the Hague Child Abduction Convention and the Hague Child Protection Convention. An appreciable period of residence is ‘habitual’: Re J (a minor: abduction) [1990] 2 AC 562, 578. This concept is not prevalent in Australian law, and it is rather difficult for the legislature and those responsible for implementing these conventions to understand what is meant by habitual residence – not clear how this distinguishes from ordinary residence. More is required than for domicile – continual presence is not required for domicile.

STATUTE AND THE CHOICE OF LAW METHOD

There are two ways in which statutes can effect the choice of law method:

1.       Statute itself can apply a choice of law rule eg Marriage Act 1961 (Cth)

2.       Where the statute is part of the potentially applicable law of the cause (lex causae)

 

In the first instance, the statute impedes on the choice of law process eg common law. This is rare in Australia cf UK as part of the EU.

For the second point, problems arise when statutes have a localizing element – limits the application of the statute to a particular area.

Since the statute will take priority over the common law when they lead to different outcomes, a statute may effect the common law choice of law rules. Need to consider:

·       The statute law of the forum

o    To what extent does the forum, if its own choice of law rules refer to the law of the forum give effect to its own statutes

·       Statute law of another jurisdiction

o    Where our choice of law rules refer us to a body of foreign dispositive rules, and the foreign body of law has a statute with a localising element

·       The statute law of another State in the exercise of cross-vesting jurisdiction (not covered)

A forum court will be required to apply a statute of the forum in two situations:

1.       The statute itself indicates that it must be applied in a certain case (ie mandatory rules)

2.       If the forum’s choice of law rules (including through renvoi) identifies the law of the forum as the law of the cause, and that body of dispositive law includes a statute

The statute simply requires that it be applied before any matter brought within the forum, irrespective of the multi-state nature of the case, and therefore irrespective of the effect of the choice of law rules of the forum (which might lead to the law of the cause being a foreign body of dispositive rules).

GOLDEN ACRES LTD V QUEENSLAND ESTATES PTY LTD [1969] QD R 378

·       Facts

o    Queensland Auctioneers and Agents Act 1922 required agents for the sale of land (estate agents) to be licensed by the state of Queensland

o    One party was trying to obtain the agent’s fees from the sale of land from another party

o    Contract for the establishment of an agency in Queensland included choice of law clause which had the law of Hong Kong as the applicable law

§   This was actually in the contract which was at the core of the dispute

o    Estate agent argued the contract was governed by the law of the cause

§   Common law of Australia recognises express choice of law clauses

·       Common law process would lead us to apply the law of Hong Kong

·       Held

o    While the choice of law led to Hong Kong, this could not override a mandatory rule

 

Whether a statute is to apply as a mandatory rule depends on the terms of the statute itself. The problem is that it is unusual for those drafting legislation to consider defining the intended territorial operation of the statute explicitly. Those that include an express statement of territorial operation include:

·       Section 11(1) Carriage of Goods By Sea Act 1991 (Cth)

·       Section 67 Trade Practices Act 1974 (Cth)

·       Section 8 Insurance Contracts Act 1984 (Cth)

 

AKAI PTY LTD V PEOPLE’S INSURANCE CO LTD (1996) 188 CLR 418

·       Contract had express choice of law clause in favour of England

·       Statute mandatory so to overrule common law choice of law rule of applying the chosen law

 

Note: In that case, the mandatory rule will only be applied in the forum UNLESS a foreign court seized with the matter, according to its own choice of law rules, finds the Queensland law as the law of the cause (which will only occur if it does not apply the parties’ chosen law of the cause (Hong Kong)

Statutes, however, seldom include explicit localising rules. A localising rule means the statute is designed to only operate within the jurisdiction and is not outside the jurisdiction. When these situations occur, the court is required to localize the statute – that is, determine the territorial operation of the statute. This is no more than the choice of law method – determining the applicable law to the cause (and whether it includes a statute.)

BARCELO V ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LTD (1932) 48 CLR 391

·       Sykes J said that a statute should be applied to the maximum extent of the relevant parliament’s legislative power

·       Evatt J effectively suggested the same

o    Thought that, so long as the forum statute was constitutionally valid, it should be applied to a multi-state case before a forum court as though all material events and transactions had occurred within the forum

MYNOTT V BANARD (1939) 62 CLR 68

 

·       HCA had to decide an action brought by the survivors of the deceased who were bringing an action under the Victorian Act

·       Facts

o    Employee killed while working in NSW

o    Resident in Vic, employer was a Vic company, employment contract entered into in Vic and governed by Vic law

o    Problem was at the time there was no choice of law rule the court could use

§   Not a tort, simply a statutory claim

§   Statute itself has no choice of law rules within it

·       Question for the HCA was can that Vic statute apply to death that occurred in NSW

·       Held

o    Nothing in the statute to indicate it should operate outside Vic

o    Assumed Vic Parliament didn’t intend to operate outside Vic

o    Even though the forum might be Vic, Vic would not necessarily apply its statute to a death that occurred outside its jurisdiction

o    Interpreting the intention of parliament to have within the statute a localising rule

o    Choice of law rule embedded in the statute was that worker’s compensation would be the applicable law only when the death occurred in Victoria

o    Merely localising the statutes

Forum merely relies on the established choice of law rules, and if that means the application of the laws of the forum, then the forum statute applies.

BARCELO V ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LTD (1932) 48 CLR 391

·       Facts

o    Debentures issued by Electrolytic under a trust deed that stated it would be governed by the law of Victoria

o    Holders of debentures lived in Melbourne and London

o    In 1931, Victorian Parliament passed the Financial Emergency Act 1931 which allowed interest payments to be made on debentures to be reduced, and payment of the reduced rate to discharge the company’s obligation to pay the full sum

o    Electrolytic sought a declaration in the VSC that, by paying a reduced sum of interest, it had met its interest obligations to the debenture holders

§   Therefore, its case was that the Act applied to the debentures

o    Common law choice of law rule identified the law of Victoria as the law of the cause

·       Held

o    Full Court of the Supreme Court decided the Act did apply to debentures

o    In the HCA, Rich J held that the common law choice of law rule required the application of the law of Victoria to the interest obligations, and this meant the Act applied in this particular case

o    Dixon J held that for statutes like the Act that did not include localising rules, the ‘settled, if artificial rule of construction’ was that they were to be interpreted consistently with established rules of international law

o    McTiernan J relied on English decisions that had construed statutes consistently with the rules of private international law

§   Found nothing to exclude the debenture from its territorial operation

 

If a choice of law rule leads to foreign lex causae, then statute won’t apply: Sykes v Cleary (choice of law rule that foreign nationality to be determined by the law of the foreign state – so Australian Citizenship Act 1948 (Cth) did not govern the loss of foreign nationality.

The better approach is not to read anything in unless you can impute that intention to Parliament – should assume that statutes can operate extra-territorially unless there is something about that statute that says it shouldn’t apply.

SYKES V CLEARY (1992) 176 CLR 77

·       Facts

o    Common law choice of law rules is that foreign nationality is determined by the foreign law

o    The Australian Citizenship Act had requirement that anyone obtaining Australian citizenship take an oath – swear allegiance to Australia and forgo allegiance to any other nationality

o    Argument that through the oath statute contained a mandatory rule that overrode the common law rule

·       Held

o    Held this was not the case – didn’t read any localising effect into this

o    Read it down in terms of infringing on the common law private international law rules

§   Eg only in Mynott when there is no exceptional choice of law rule that can be used, run through the usual process

o    Important thing is the choice of law process may mean that you don’t end up applying your own statutes (eg Sykes)

§   Have to be quite clear that your own statute does not override the common law rules

§   Have to be careful about the nature of the act you have within your jurisdiction

§   Have to be aware whether that Act contains within it a mandatory rule that overrides the common law process

Statute law of foreign jurisdiction usually applies if the forum’s choice of law rules indicates that the foreign law is to be the lex causae. What if the foreign statute contains its own localising rule?

SAYERS V INTERNATIONAL DRILLING CO LTD NV (1971) 3 ALL ER 163

 

 

·       Facts

o    English court had dispute between employee (English) and employer (Dutch)

§   Contract had exemption for liability in tort – could only sue in contract

o    Exemption clause was invalid under both the law of England and the Dutch Civil Code

o    The English common law choice of law rules said the contract was governed by Dutch law

o    Dutch Civil Code has within it a localising effect

§   Civil Code is not supposed to be applied with any case where one of the parties is not Dutch

o    Want to import foreign body of law to dispose of matter but can’t because of localising element

·       Held

o    When there is no alternative there is a problem

§   Can’t apply Dutch law because of localising effect and can’t apply English law because choice of law rule says to apply Dutch law

·       Substantive law is affecting

o    Dutch evidence was that if DCC did not apply the clause was valid (from cases in Netherlands)

§   Could exclude statute and apply alternative Dutch rule

·       This relies on there being an alternative that the foreign court has in itself provided in the past

CHOICE OF LAW METHOD (REVISION)

1.       Identification of a conflict of laws

2.       Classification of the subject matter

3.       Classification of substantive or procedural law

4.       Identification of the choice of law rule

5.       Application of the law of the cause

 

First step is to identify that there are these jurisdictions that are important. The only way you can tell this is if you have some knowledge of the choice of law rules you have to apply – this is why the process is somewhat circular.

Merely identifying those jurisdictions is one thing – what we are really looking for is a conflict of laws – those jurisdictions provide different outcomes. When that occurs, we have a conflict of laws. In a sense if they all do the same thing and apply the lex fori, you are ignoring your choice of law rules.

Once you have identified there is a conflict of laws or likely that there is a conflict of laws, the next step is to classify the matter. Classification – trying to narrow the issue down to the point where, associated with that classification is a choice of law rule. Whether you have a rule that is at a sufficient degree of abstraction there is a choice of law rule attached to that.

That classification process – sometimes there are alternatives to that level of abstraction. Then have to narrow the issue down to what is actually in dispute between the parties – and that is what you classify and from that classification you find the choice of law rule.

Once you’ve done that, there are other problems. Depecage is a contractual issue – situation where having classified the matter as contract you find that there are two different choice of law rules associated with the different classifications but continue with both of those eg formal and essential validity of a marriage. The

other alternative is that once you have classified a matter in resolving the dispute there are two classifications that you have been unable to avoid – simply fold the incidental question into the main question.

Then you have substance and procedure – issues of procedure fall outside the choice of law rules.

 

At this stage you can eliminate some of the jurisdictions. This leads you to a foreign body of law.

Once you have removed those statues with a localising effect, have identified the law of the cause. Now must address the questions of the choice of law rules of other jurisdictions and whether need to consider the problem that arises from conflict of conflict of law rules.

This isn’t a step by step process.

FOREIGN AND INTERSTATE JUDGMENTS

 

 

 

It becomes a matter for Australian law as to whether Australia will recognise or enforce a foreign judgment – hope that a foreign entity will reciprocate the basis for our jurisdiction. This is the foundation upon which recognition and enforcement is based.

 

 

While Australian courts may exercise exorbitant jurisdiction – may be of no effect if the defendant has no assets in Australia and judgment cannot be enforced in a foreign state in which the defendant does have assets.

There is a close relationship between concepts. The basic principle underpinning recognition and enforcement is the extent to which the foreign court’s exercise of its jurisdiction mirrors the ‘enforcement’ (Australian) court’s jurisdiction.

Therefore, at common law, a foreign court’s judgment will be recognised in Australia if the foreign court exercised jurisdiction based on:

1.       Presence in the jurisdiction

2.       Submission to the jurisdiction

 

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.

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: Dow Jones & Company Inc v Gutnick.

There are two main ways of recognising and enforcing judgments:

·       Enforcement at common law

·       Enforcement under statute

o    Foreign judgments

o    Interstate judgments

 

Enforcement of a judgment obtained in a court outside Australia requires that matter to be brought in Australia as a new case. Australia views the judgment as an obligation – one party is to pay the other party a sum of money. If it is merely an obligation to pay and you are requiring that to be paid in Australia, all that the Australian court is doing is entertaining an action to enforce an obligation. The foreign judgment is evidence of that obligation.

However, the foreign judgment is not enforceable because of the foreign judgment – strictly only enforceable when adjudged to be enforceable by a court in the forum. This means that the court in the forum must have jurisdiction over the judgment debtor at common law, under SEPA or by its rules of court.

If the judgment debtor refuses to pay the obligation, have to come to Australia to initiate a new action. Jurisdiction will have to be found either by common law or statute.

For the forum to enforce a foreign judgment at common law, must satisfy the following conditions:

·       Foreign court has international jurisdiction

o    Look at the mechanism by which the foreign court has exercised jurisdiction in deciding the matter in the first place

o    Know that the foreign court has exercised jurisdiction according to its laws, so don’t look to its laws

o    Look to our law to see if it is exercising jurisdiction in a way that mirrors ours

·       Final judgment

·       Fixed sum

·       Identical parties

 

The Australian court will apply Australian law to determine whether in fact it will enforce that obligation.

International jurisdiction means the competence that the law of the forum recognises that at court in a foreign country can exercise if its judgment is to be recognised or enforced in the forum. International jurisdiction is assessed by the laws of the forum. It is assumed the foreign court had jurisdiction under its rules. At common law, therefore mirrors (to a large extent) common law jurisdiction of forum. Other (wider possibilities have arisen.)

At common law, this mirrors common law jurisdiction of forum, that is:

·       Presence within territory of foreign court

o    At time initiating process served on defendant – including corporation

o    Under our jurisdictional regime, we readily recognise presence within the jurisdiction – thus we will recognise if a foreign court exercises jurisdiction on the same basis

·       Submission

o    Either express or by conduct inconsistent with a protest against jurisdiction

o    Defendant can say that they never submitted to the jurisdiction of the other court

Where the defendant/judgment debtor is a natural person, the international jurisdiction of the foreign court will be recognised when the debtor was served in the foreign place with the initiating process for the proceeding that led to the making of the foreign judgment.

There are two particular means by which submission to the jurisdiction of the foreign court might be shown:

1.       Express agreement

2.       Conduct inconsistent with a protest against the jurisdiction of the foreign court

 

This is a less than perfect mirror of jurisdiction.

Note: if the parties agree to a choice of forum clause and judgment is entered against the debtor in that place, at common law, the foreign court will be regarded as having exercised property international jurisdiction even if B refused to actually appear before the foreign court. A choice of law clause is insufficient to establish international jurisdiction.

HARRIS V TAYLOR [1915] 2 KB 580

·       Considered the question of a challenge to jurisdiction

·       Facts

o    D challenged court’s jurisdiction, but the court rejected the challenge

o    D didn’t accept the rejection and didn’t come to court

o    Court ruled summarily against the defendant and P sought to have the judgment enforced in England

·       Held

o    English court enforced the judgment

o    Even though D had challenged jurisdiction and lost and had not appeared, that amounted to submission to jurisdiction

HENRY V GEOPROSCO INTERNATIONAL LTD [1976] 1 QB 726

·       Extended Harris v Taylor

·       Facts

o    D went to foreign court and said they weren’t the appropriate court – raised forum non conveniens

o    They lost that challenge and ruled against the D

o    Went to the English jurisdiction and tried to have that judgment enforced

o    English court had to consider whether that jurisdiction was appropriately exercised

·       Held

o    When D raised forum non conveniens, they recognised te competence of that foreign court but requested it to not exercise that jurisdiction it clearly had

o    English court enforced the judgment

 

Section 11 of the Foreign Judgments Act 1991 (Cth) ensures that neither approach is followed in Australia. 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 jurisdiction. NB applies to common law enforcement action.

In rem proceeding

·       Ground for jurisdiction and follows choice of law rule that law regarding title to or possession of immovable property is determined by the lex situs

·       Probably only for immovable property and chattels

 

Domicile or residence

·       Possibly can be international jurisdiction in Australia if old English precedents are followed

·       Where the judgment debtor 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: Marshall v Houghton

o    Also held this applied for defendant who was domiciled in foreign place

 

Nationality

·       Precedent in the UK suggests nationality should not be used: Sirdar Gurdyal Singh v Rajah of Faridkote[1894] AC 670

·       However, Federal Finance & Mortgage Ltd v Winternitz (Unreported NSW 1989) says otherwise

·       Raises question as to whether we should accept jurisdiction in a foreign court that is exercised on a conceptually similar basis to what we would exercise jurisdiction, but not the same basis.

Real and substantial connection

·       Canadian courts 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

·       Morguard Investments Ltd v De Savoye [1990] 3 SCR 1077 related to a matter internal to Canada involving two provinces

o    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’

·       The proposition was extended in Beals v Saldanha[2003] 3 SCR 416 to foreign jurisdiction

·       Unlikely this will be followed in Australia – adds nothing to interstate judgments (SEPA) and the ground is so flexibly defined as to give little guidance as to when foreign judgments made where there was some connection with the place where it was rendered will not be recognised

Reciprocal jurisdiction

·       While reciprocity underpins recognition of foreign judgment, it is not applied in sense wider than common law

o    Except by way of statute in relation of recognition of marriages, annulments and divorces

·       While a foreign court may exercise a wide jurisdiction under its statute to allow for service on defendant outside the jurisdiction of that court, and that basis is the same (mirrors) that of the Australian court in which enforcement is requested, this is insufficient to found ‘international jurisdiction’: Crick v Hennesy [1973] WAR 74

·       Therefore, just because some other court has exercised some similar jurisdiction does not mean that we will accept that jurisdiction

o    Australia tends to mirror the common law ie presence, submission – may mirror domicile but this is where the issue stops

o    Australia doesn’t mirror anything else at common law

o    There are exceptions relating to marriage, divorce, annulment of marriage etc

Judgment must be final and conclusive res judicata (ie cannot be re-litigated in the same court by the same parties) but it may be subject to appeal, and can include a default judgment. If there is an appeal, can stay the enforcement of the original action. Except if it can be set aside by appearance.

NOUVION V FREEMAN (1889) 15 APP CAS 10

·       Spanish summary judgment not final as defendant could bring plenary proceedings within certain time

·       Until that time had expired, there was always time to relitigate the matter

·       English court said they would not enforce until such time as the expiry date had come and gone

The theory of obligation assumes that the foreign judgment will represent an obligation on the part of the defendant/judgment debtor to pay a sum of money to the plaintiff/judgment creditor. At common law, enforcement is only for a fixed sum – if the sum can’t be calculated it is not capable of enforcement. This includes an order in specie such as specific performance or an injunction. However, some other orders may be recognised:

WHITE V VERKOUILLE [1989] 2 QD R 191

·       Required that Qld court appoint a receiver – subject to probate etc

·       Order to appoint a receiver was a foreign order but Qld court willing to enforce that order here

·       At common law can get something other than damages enforced, but they are limited

The plaintiff seeking to enforce a judgment in Australia must be the same plaintiff that sought the judgment in the first place. The defendant must be the same defendant who was in the foreign court.

BLOHN V DESSER [1962] 2 QB 116

·       Austrian judgment and Austrian D was partnership

·       Partners not liable for debts of partnership under Austrian law

·       P succeeded in Austria and wanted to enforce against 1 partner with property in England

·       English court said there was a difference in defendants

o    Here the defendant was one partner and in Austria was a partnership

·       Foreign judgment obtained by fraud

·       Debtor denied natural justice

·       Enforcement would amount to enforcement of foreign penal law, revenue law or other governmental interest

·       Recognition or enforcement would be contrary to forum’s public policy

The original judgment must be obtained by fraud, however, a question arises as to whether this is extrinsic or intrinsic fraud. Intrinsic fraud is evident during the litigation eg the fraudulent issues are raised at court.

Extrinsic evidence comes to light after the litigation.

A court ought to accept that a judgment is a legitimate judgment, and should only question if matters come to light after that judgment eg perjury or falsification of documents or something not known to the courts that made that decision. Otherwise, it may amount to re-litigation if intrinsic fraud is considered.

AHMED V HABIB BANK [2001] EWCA CIV 1270

·       Foreign judgment lacked reasoning and documents suggested fraud

·       Facts

o    When it came time to enforce, the judgment obtained in Pakistan, considered the fraud raised by the defendant

o    D brought evidence during the trial that the matter was tainted by fraud but the trial judge in Pakistan didn’t find a fraud to exist

o    D managed to give evidence in England to say that the documents they had suggested there was a fraud and any reasonable court with those documents would have found a fraud

·       Held

o    English court in a sense re-litigated issues

§   Could not see how a Pakistani judge couldn’t see a fraud

o    Refused to enforce the judgment

o    Reconsidering evidence and saying how a Pakistani judge should have decided it according to English standards

o    Undermining one of the key principles that is required for enforcing judgments – final and conclusive – the foreign judgment was not res judicata on the question of fraud

·       Consequences of this decision

o    Incompatible with concepts of res judicata

o    Encourages ‘saving for a second attempt’

§   Defendant may not participate completely in the foreign proceedings

·       See Yoon v Song (2000) 158 FLR 295

 

ISRAEL DISCOUNT BANK V HADJIPATREAS [1983] 3 ALL ER 129

·       Court said that if matter could have been raised in the foreign court, was not raised in the foreign court but raised now (kind of intrinsic fraud) strategically as a defence, will not accept that fraud as a fraud that is used to defend the enforcement action

·       At least accepted some limitations

·       See also Owens Bank Ltd v Bracco [1992] 2 AC 443

 

HOUSE OF SPRING GARDENS LTD V WAITE [1991] 1 QB 241

·       Original judgment made in Ireland, but 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

English (and NZ) approach is to allow for cases other than extrinsic fraud. The Canadian approach is limited to extrinsic fraud. The Australian approach refers includes the following cases:

NORMAN V NORMAN (NO 2) (1968) 12 FLR 39

·       Initially federal court took English approach

·       Can take into account fraud that is raised during that case as part of the defence to the enforcement

 

KEELE V FINDLEY (1990) 21 NSWLR 445

·       NSW court ruled that only extrinsic evidence ought to be taken into account

 

YOON V SONG (2000) 158 FLR 295

·       FCA came back to Norman and said there are cases in which intrinsic fraud can be taken into account as a defence

Therefore, in Australia it appears to be the case that intrinsic fraud can be used as a basis to defend an enforcement action.

The requirements of natural justice are:

·       Due notice of proceedings (forum clauses and foreign law?) and

·       Both parties given fair opportunity to present their case

If parties are not given appropriate opportunities to prepare/participate and the judgment was rendered under those circumstances, D can use 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. 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.

 

INCOMPATIBLE JUDGMENTS

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. When someone comes to enforce a judgment in Australia, D says they have received judgment somewhere else in their favour.

SHOWLAG V MANSOUR [1995] 1 AC 431

·       Facts

o    S went to a court in England and succeeded against M

o    M went to a court in Egypt and succeeded against S

o    S tried to enforce the English judgment in Jersey

o    M tried to use the Egyptian judgment as a defence to the enforcement of the English judgment

·       Held

o    Court looked at both judgments and said both are enforceable

§   Both exercised international jurisdiction etc

o    The first in time prevails – whoever got the judgment first prevails

§   A subsequent incompatible judgment cannot be used as a defence where both the parties are the same

o    Lord Keith of Kinkel held 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

o    First in time to enforce the judgment prevails

 

A blanket acceptance of the competencies of a foreign court and for the registration of that court in the forum, allowing enforcement (subject to defences similar to those at common law.) The Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK) was replicated in all States of Australia, and common with the Commonwealth including Canada and NZ. Therefore, the defendant doesn’t have to be in the jurisdiction. This statutory

encoding of the common law that parallels the common law to some extent but with a small amount of variation.

This Act replaced all existing state and Cth legislation and thus applies to all states and territories. It list jurisdiction with which there is a reciprocal agreement. For superior courts:

·       Canada

·       France

·       Germany

·       Italy

·       Japan

·       Korea

·       New Zealand

·       Poland

·       Singapore

·       Switzerland

·       China

·       UK

 

For inferior courts, there is a smaller list:

·       Some Canadian provinces

·       New Zealand

·       UK

·       Poland

·       Switzerland

 

Where the Act applies, cannot enforce at common law.

Judgment is defined as ‘a final and interlocutory judgment or order given or made by a court on civil proceedings’: s 3(1). It also allows for the registration of:

·       Criminal judgments which award compensation to victim

·       Arbitral awards

·       Allows for proclamations allowing specific performance and injunctions (none yet made)

 

Therefore, judgment doesn’t have to be for a fixed sum of money, a much wider range of actions can be enforced than at common law.

 

REGISTRATION

Registration much occur within 6 years of judgment (or appeal) provided that:

·       It is a judgment to which the Act applies

·       Not wholly satisfied

·       Enforceable in the place where it was made

 

NB: no need for court to have jurisdiction over judgment debtor. See Hunt v BP Exploration Co (Libya) Ltd (1979) 144 CLR 565. At common law you do have to have jurisdiction over the judgment debtor at common law or statute.

HUNT V BP EXPLORATION CO (LIBYA) LTD (1979) 144 CLR 565

·       Facts

o    BP took action against H in UK, also had assets in Qld

o    BP wanted to enforce the judgment in Qld because he had assets here

o    H challenged because he wasn’t in Qld and had no connection other than having property there

·       Held

o    No need for the Supreme Court to have personal jurisdiction over the judgment debtor for the judgment to be registered

o    At common law, saying this is an action in personam

§   Action to enforce an obligation that already exists

§   This is not the case at all – this is merely registration under a reciprocal arrangement which allows us to enforce a judgment against a particular person

o    Illustrates doesn’t require jurisdiction

§   But must comply to similar standards required of the common law

o    ‘At common law a judgment creditor who sought to enforce a foreign judgment who sought to enforce a 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 the court’

o    The Act dispensed with this requirement, since ‘the application for registration does not involve an action in personam requiring service of the Supreme Court’s process in or outside the jurisdiction’

Because there is a reciprocal arrangement scheme, it almost stands to reason that judgments will be

recognised. On registration, it is ‘naturalised’ ie has the same force and effect as judgment of a court and deemed to be made on date of registration. Judgment registered in a State’s Supreme Court can then be registered in any other State’s Supreme Court by way of Service and Execution of Process Act 1992 (Cth).

Registration can be stayed until foreign appeal concluded. Most of the courts require notice to be given to the judgment debtor.

Judgment debtor can resist and make judgment unenforceable by having the registration set aside. The debtor can apply to the Supreme Court in which the foreign judgment was registered to have the registration set

aside. If a judgment was made in a foreign country and merely registered in Victoria, the debtor can invoke the procedures of the Foreign Judgments Act in SA to have registration of the judgment set aside there.

1.       If judgment is one to which the Foreign Judgments Act does not apply

2.       If the judgment registered was for a sum greater than the amount payable at the time of registration

3.       Obtained in breach of Act

4.       S 7 Foreign Judgments Act – if condition for registration were not met and grounds which mirror to large extent common law

o    Sets out a number of defences available and a number of bases on which you can have a judgment set aside

o    While it mirrors the common law, the Act itself sets out different rules as to international jurisdiction depending on whether the action is

§   In personam

§   In rem

§   Relating to immovable property

§   Unclassified

 

However, in any of these cases, international jurisdiction not recognised if

·       Foreign proceedings related to immovable property was not located in the foreign place

·       Brought in breach of exclusive choice of forum clause

·       Judgment debtor entitled to immunity in public international law and did not submit to court’s jurisdiction

 

SECTION 7 FOREIGN JUDGMENTS ACT

1.       Set aside if foreign court not exercising a recognised international jurisdiction

 

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

·       If the proceedings were brought in the foreign court in breach of an exclusive jurisdiction clause (and the defendant had not otherwise submitted to its jurisdiction)

·       If the debtor 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 the debtor did not submit to jurisdiction

Proceedings in personam

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 was a natural person who was ‘resident’ in the relevant foreign place. This may mean that the debtor was merely present in the foreign place at the time proceedings were commenced.

It is also sufficient that the proceedings relate to a transaction that the debtor effected through an office or place of business that the debtor had in the foreign place. Further, the international jurisdiction of the foreign court is established if the debtor voluntarily submitted to its jurisdiction. It expressly excludes submission by agreement/conduct.

(most instances except most matrimonial causes) – where judgment debtor ‘resident’ in foreign jurisdiction = presence, conduct of business through agent etc, submission, exclusive jurisdiction clause, raising of substantive issues etc.

DE SANTIS V RUSSO [2002] 2 QD R 230

·       Facts

o    R took action against D in supreme court in Rome and managed to obtain judgment against D

o    D actually attempted to engage in the litigation in Rome but didn’t manage to get it right

§   Whatever approach they made the court rejected that approach

§   D failed to become engaged in the matter

o    Finally court entered summary judgment in Australia

o    R comes to Australia and tries to get judgment enforced

·       Held

o    Court looked at D’s attempts, so Australian court said that D did not submit to the jurisdiction of the court

o    If D had not succeeded in submitting to the jurisdiction of the court, then D had not submitted to the jurisdiction of the court therefore the court did not have jurisdiction over D and refused to enforce judgment

o    This is part of the defence to the registration of the judgment under the registration

o    Registration was set aside on the basis that there was no in personam jurisdiction of the Roman court

o    Some of the concepts that exist under common law still apply under statute

o    Precedent for the way in which registration set aside

·       Overriding consideration 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 submission

o    On that ground, she could not be considered to have participated in the foreign proceedings, and registration was set aside

See section 7(5) of the Foreign Judgments Act – submission does not include:

·       Contesting the jurisdiction of the court

·       Inviting the court in its discretion not to exercise its jurisdiction in the proceedings

o    S 11 and relation to common law Proceedings in rem

Property, often maritime property (ships). International jurisdiction established if immovable property within jurisdiction of foreign court. 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 place at the time of the proceedings.

Unclassified proceedings

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.

2.       If not identical parties

 

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.

3.       If judgment obtained by fraud

 

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

4.       If no natural justice

 

B had insufficient or no notice AND did not participate in the proceedings: Barclays Bank Ltd v Piacun [1984] 2 Qd R 746

5.       If contrary to public policy (of Australia)

 

The registration of a foreign judgment must be set aside if enforcement of the judgment would be contrary to public policy.

6.       If incompatible judgment

o    Being a judgment obtained in foreign court AFTER a final and conclusive judgment made elsewhere in a court having international jurisdiction

Perhaps the most important thing about the Act is that the judgment debtor does not need to be within the jurisdiction of the court, the rest follows the common law to some extent.

Sections 104 – 6 and 109 Service and Execution of Process Act 1992 (Cth).

MARRIAGE

Marriage is largely a federal concern – Marriage Act 1961 (Cth) and Family Law Act 1975 (Cth). There is no conflict of law issues within Australia because choice of law and recognition rules are all derived from Australia – really foreign marriage/foreign divorce.

The Hague Convention on Celebration and Recognition of the Validity of Marriages 1978 sought to create a mechanism by which marriages entered into anywhere in the world would be widely recognised, and did so by making the choice of law rule lex loci celebrationis.

 

The Act sits on top of the existing common law – the changes were brought into effect on 7 April 1986.

·       For marriages entered into in Australia prior to this date, they are still governed by the common law to some extent

·       For marriages which post-date this, only the Act applies – no common law

·       For marriages that are foreign to Australia the common law and Act apply as an alternative

‘Australian marriage’ is one solemnised in Australia according to Australian law (Marriage Act 1961 (Cth) (or solemnised by Australian foreign diplomatic officers in Australia or overseas).

‘Foreign marriage’ is one solemnised in a foreign country under a foreign system of law. Foreign marriages are one fo the concerns of Private International Law, and are governed largely by Part V Marriage Act 1961 (Cth), addressing:

·       Whether a foreign marriage is valid

·       The extent of recognition of marriages or unions within the nature of marriage

Common law applies only to the extent that the Marriage Act 1961 (Cth) preserves and permits its application. Otherwise the Marriage Act governs marriage – it only really changes the essential validity requirements. The Act provides:

·       Marriageable age is 18 (16-18 possible with parental and judicial consent)

·       Prohibited relationship – descent, siblings (including half and adopted siblings)

o    No affinity prohibitions

·       Reality of consent

Primary issue where

·       Declaration of validity

·       Annulment

 

An incidental question when

·       Dissolution

·       Revocation of will by marriage

·       Inheritance of spouse or child

·       Legitimacy of child

·       Taxation relief of spouse

 

HYDE V HYDE AND WOODMANSEE (1866) LR 1 P & D 130 AT 133

·       Husband brought proceedings in England for the dissolution of a marriage conducted in Utah in accordance with Mormon rites

o    Marriage had been entered at a time when Mormonism endorsed and practised polygamy

o    Having renounced his Mormonism, the husband returned to England

o    Wife then remarried a second time – again, in Utah, in accordance with Mormon rights – so the husband alleged that a dissolution could be granted on the ground of her adultery

·       Decree was refused

·       Marriage was only potentially polygamous, therefore refused any remedy that could otherwise be granted by an English court

·       Lord Penzance’s definition of a Christian marriage

o    The voluntary union for life of one man and one woman to the exclusion of all others

 

Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life:

Marriage Amendment Act 2004 (Cth) – ss 5, 46(1) Marriage Act 1961 (Cth).

 

The marriage relationship is one entered only with the voluntary consent of the man and woman involved. The mere agreement of the parties to live as husband and wife was the only requirement imposed by the medieval canon law for a relationship to be recognised as a marriage.

Consent cannot be given if:

·       Duress

·       Fraud

·       Mental capacity

·       Mistake as to effect of ceremony

 

So long as they are also of marriageable age, it is only the parties’ consent to the marriage that is relevant.

The best that can be said is that marriage is a relationship for an indefinite period. It will subsist for life unless earlier dissolved in accordance with the law.

Whenever (irrespective of the grounds) the law recognises that a marriage can be dissolved a mensa et thoro, it must assume that a marriage might not subsist until the parties are separated by death.

Monogamous

o    Though aspect of polygamous marriages are ‘recognised’

o    Suggested by ‘to the exclusion of all others’

An enduring, and intractable, question concerning the legal concept of marriage has been whether it is only a legally and actually monogamous marriage that will be recognised, or whether concessions are to be made to the recognition of potentially or actually polygamous marriages. Need to distinguish between monogamous and polygamous marriage (and potentially polygamous marriage.)

A potentially polygamous marriage is where there is only 1 spouse, but there is the potential to take another.

The time for determining the nature of the union is the time when the proceedings that give rise to the need to determine the question are commenced:

·       A potentially polygamous marriage, which has become an actually polygamous marriage, may be valid

o    Eg if wife doesn’t give birth within 2 years, entitled to take another wife – if she does it becomes monogamous

§   Also possible that parties may unintentionally changed the union from potentially polygamous to monogamous by acquiring domiciles in a place, like Australia, which under its internal law does not allow polygamy

o    If it is potentially polygamous it is always voidable – it needs to become actually monogamous

§   Defect is cured by change to a monogamous marriage

·       But an actually polygamous marriage, even if it becomes actually monogamous, will never be valid

o    If you had 2 wives and now have 1, still have an actually polygamous marriage

§   Not regarded as married

§   Absolutely void – will not be recognised

·       The fact the union has been polygamous means will not be regarded as union

·       There has to be a marriage before start looking if it is a valid marriage

o    Invalid or void at the outset and cannot be altered by any subsequent event, except the separate solemnization of a valid monogamous marriage

 

CLASSIFICATION

Classification is then important – potentially polygamous or actually monogamous. There is no clear authority on classification in terms of marriage. It may be:

·       Lex domicili

·       Lex loci celebrationis

·       Lex fora: Lee v Lau

 

In common law, have two aspects to marriage which require choice of law rules – essential and formal validity.

 

 

 

 

In the example above, if applied lex domicili, would have to recognise polygamous marriage and this cannot be the case.

LEE V LAU [1967] P14

 

·       Marriage in Hong Kong – could only have 1 wife but could have a number of concubines

·       Classification in Hong Kong would be monogamous because it makes a distinction between concubines and wives

o    Nature is that wife not in relationship to the exclusion of all others

§   If classify according to lex loci celebrationis, valid and domicile would be valid

·       Held

o    Contrary to what would happen in forum so have to apply law of the forum

o    Classification has to be according to the law of the forum – forum courts decide whether marriage is valid or not

o    It could not be considered a valid marriage, as the husband could take additional partners who possessed some legal status

§   Could not be said to be to the exclusion of all others

o    Avoids the problem of importing fine distinctions that foreign laws might make between monogamous and polygamous marriages

When it is an incidental question to something else, Australia will recognise that. If don’t recognise marriage but the nature of the union – it would have a detrimental effect on those children.

 

CORBETT V CORBETT [1971] BELLINGER V BELLINGER (2002)

·       Bride born male

·       Marriage when woman who had undergone sex change operation (born male)

·       Neither of these marriages were declared valid marriages

 

C AND D (1979)

·       Annulled for pre-operative intersex person who underwent corrective surgery after marriage, on the basis of mistake as to spouse’s sex

·       Marriage entered into when one of the parties after the wedding went through an operation to correct the one sex

·       Court annulled marriage not on the basis of the sex, but on the basis that the other party was not aware of that

RE WAKIM; EX PARTE MCNALLY (1999) 198 CLR 511 AT 553

·       McHugh j suggested that ‘marriage now means, or in the near future may mean, a voluntary union between two people to the exclusion of others’

ATTORNEY –GENERAL V KEVIN (2003) 30 FAM L R 1

·       Distinguished above if marriage was post-operative gender reassignment

·       Recognized the fact that one party physically might not have reflected their actual sex

o    Operation merely corrected this

o    Persons were of the opposite sex and could be married

·       An apparently heterosexual union involving a post-operative transsexual or an intersex person will be recognised as a marriage in Australia, even if it is not recognised as such in some other place

·       Held also that c and d had been wrongly decided

 

S 88EA Marriage Act 1961 (Cth) (Marriage Amendment Act 2004 (Cth) a union solemnised in a foreign country between:

·       A man and another man; or

·       A woman and another woman

 

Must not be recognised as a marriage in australia.

May recognise that marriage under state law for another purpose. Under the Australian construct of marriage don’t recognise it as that legal relationship. If the union you are looking at falls within this definition, can ask if it is recognised.

 

HOMOSEXUAL RELATIONSHIPS AND CIVIL UNIONS

Section 51(xxxi) of the Constitution provides that the Parliament shall have power to make laws in respect of marriage. The Federal government can only legislate with respect to marriages between a man and a woman, as legislation between two men or women doesn’t fall within pl (xxi) – they aren’t marriages.

States and Territories, for the purposes of their laws, may recognise ‘other’ relationships eg ‘significant relationship’ – monogamous homosexual relationship ss 4, 7, 11 Relationships Act 2003 (Tas). See also Civil Unions Act 2004 (NZ); r 3 Civil Unions (Recognised Overseas Relationships) Regulations 2005 (NZ).

In the process of identifying and applying the choice of law rules relating to a marriage, the Marriage Act should be consulted first, and the common law rules only applied to the extent that they are both preserved and permitted by the Act. It does so in two cases:

·       The validity of a marriage celebrated in Australia before 7 April 1986 is to be determined in accordance with the common law rules of private international law

o    Marriage Act provides some exceptions that, as mandatory rules, override the effect of the common law rules

·       The validity of a marriage solemnised overseas at any time is initially to be determined by reference to the rules set out in Pt VA of the Marriage Act

o    If the marriage is not valid according to Pt VA but it would be recognised as valid under the common law rules of PIL, the marriage will still be recognised as valid in Australia

§   Common law rules can save validity of marriage solemnised overseas

§   There are still exceptions which override the common law rules

 

Choice of law rules:

·       Lex loci celebrationis

·       Two choice of law rules

o    One for formal validity

o    One for essential validity

 

BROOK V BROOK (1861) 9 HLC 193 AT 207 – 8; 11 ER 704 AT 709

·       Per Lord Campbell LC

o    There can be no doubt of the general rule, that ‘a foreign marriage, valid according to the law of a country where it is celebrated is good everywhere.’ But while the forms of entering into the contract of marriage are to be regulated by the lex loci contractus, the law of the country

in which the parties are domiciled at the time of marriage, and in which the matrimonial residence is contemplated’

·       Formal validity

o    Whether religious or civil

o    Qualifications of celebrant

o    Need for witnesses

o    Requirements of notice and registration

o    Need for parental consent – questionable

·       Essential validity

o    Age qualification

o    Relationship by common descent or affinity qualification

o    Pre-existing marital status

 

 

These common law choice of law rules still apply, but only for marriages entered before 7 April 1986 or potentially foreign marriages.

Formal validity – the general rule is that the law of the cause for any issue relating to formal validity is governed by the law of the place of solemnisation (lex loci celebrationis):

·       Held that whether a marriage is validly solemnised when one of the parties appears only by proxy is a question of formal validity: Apt v Apt

For a marriage to be valid – must be formally and essentially valid.

If essentially valid, but formally invalid, then marriage is invalid. This is an exception to the requirement that you have to have formal validity.

If the marriage was made in accordance with the formal requirements prescribed in the place where it was solemnised it will be valid, so long as the marriage is also regarded as being essentially valid. On the other hand, if the marriage did not satisfy the formal requirements prescribed in the place where it was solemnised, it will be invalid, even if the marriage is essentially valid.

The time at which the marriage must comply with the formal requirements of the law of the place where it was solemnised is the time when the marriage was entered. It will not be invalid if it met the requirements and then the law subsequently changed so as to invalidate the marriage. However, if a law change subsequently validates a marriage, this works in favour of the validity of the marriage.

Potentially two requirements for recognition of a marriage at common law:

·       Declaration de presenti – a serious and genuine exchange of consent by the man and the woman to a present marriage

·       Solemnisation by a priest

 

Common law marriage requires nothing more than a serious and genuine exchange of consent by the man and the woman present at the marriage and Mills limited to marriages in England and Ireland: Catterall v Catterall (1857) 1 Rob Ecc 580; 163 ER 1142. Regarding requirement of episcopally-ordained priest (a priest ordained by a bishop): R v Millis (1844).

Where marriage not valid at lex loci celebrationis, but satisfies common law marriage in Australia, will be recognised when:

·       Impossible to satisfy formal requirements: Savenis v Savenis [1950] SASR 309 cf Marriage of X (1983) 65 FLR 132

·       Serving in armed forces occupying lex loci celebrationis

o    Reason offered for the rule is that the parties did not voluntarily submit to the internal law of the occupied place

o    Probably just unreasonable to expect occupying troops to be subject to the law of the place in which they are in belligerent occupation

·       Conscientious objection – usually to religious ceremony required

o    If the law of the place where the marriage was solemnised required the parties to use a particular religious ceremony, it may be sufficient for parties who did not adhere to that religion to satisfy the requirements of a common law marriage for the marriage to be recognised as formally valid in Australia

Where the two parties have the capacity to enter into marriage, but in a jurisdiction where it is impossible for them to get married under the formal laws of that jurisdiction eg requirement that need to be certain religion. The concept is still used where party can’t satisfy formal validity – if satisfies common law marriage, may then recognise formal validity.

SAVENIS V SAVENIS [1950] SASR 309

·       Facts

o    Couple wanted to marry in Germany at the end of WWII where the law required them to get married in a certain format

o    Format couldn’t be complied with because the registry destroyed etc – absolutely impossible because of destruction in war

o    Agreed to get married

·       Held

o    Court recognised that union as a valid union even though there was no formal validity

o    Court fairly strict in doing this

 

MARRIAGE OF X (1983) 65 FLR 132

·       Facts

o    Couple wanted to marry in Vietnam during the war

o    Could have gone and got married but feared being involved with the government of the day and didn’t do that

·       Held

o    The court did not recognise this as a substitute for formal validity

o    Still have to satisfy that requirement

o   

Has to be impossible to satisfy formal validity before recognise at common law These are the only times can have no formal validity but can recognise the marriage as valid.

The issues which are classified as questions of essential validity are all those which relate to a person’s legal capacity to marry. Two issues remain in doubt:

·       Reality of consent – whether the marriage is void on the grounds of duress, fraud, mistake or mental incapacity

·       Physical impediments which, in some places outside Australia, might render a marriage void or voidable

BROOK V BROOK (1861) LORD CAMPBELL LC

·       Facts

o    English widower and his sister-in-law married while travelling in Holstein (which the House of Lords thought was in Denmark)

o    The parties had the capacity to marry under the law of Denmark, but not under the law of England, where the marriage offended rules of affinity

·       Held

o    Lord Campbell LC

§   The essentials of the contract depend upon the lex domicili, the law of the country in which the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated

o    Comment suggests two choice of law rules

§   Law of the cause for a question relating to the essential validity of a marriage could be either the laws of the places where the parties were respectively domiciled at the time of marriage (dual domicile rule)

§   Law of the places where the parties intend to establish the matrimonial home (matrimonial home rule)

Dual domicile rule generally followed in Australia – that is, where each party is domiciled at the time of the marriage (including the lex domicili’s choice of law rules – renvoi.) That is, when applying domicile of one of the parties, it is quite possible that apply the party’s choice of law rules as well – renvoi may come into this theoretically – however, unlikely that will have a conflict of conflict of laws.

Essential validity requires us to apply the dual domicile rule. Debate as to residence (matrimonial home) as whether that is a second choice of law requirement (mainly in UK) – only require dual domicile in Australia.

Physical/pre-existing impediments

·       Eg husband’s impotence or wife’s pregnancy

·       More easily classified as essential validity to be determined then by that person’s lex domicile

 

Wilful refusal is more difficult to classify. It relates more directly to what the law regards as a person’s marital responsibility than it does to capacity – therefore arguable that question of essential validity – suggestions include:

·       Law of the forum

o    Similar to dissolutions

·       Lex domicili of the petitioner ie person willing

·       Whichever gives relief to the person aggrieved

o    If either law gives basis to invalidate marriage and party not refusing to consummate marriage, can rely on either of the jurisdictional laws to invalidate the marriage

In Australia, a marriage can only be declared invalid if it is void. Usually, wilful refusal in other legal systems merely renders a marriage voidable and, while that is the case, a court in Australia must recognise the marriage as valid. If a foreign court annuls the marriage on the ground that one party refused to consummate it, decree of annulment may be recognised in Australia under rules for recognition of foreign decrees – in neither case does a choice of law rule arise.

Only if foreign place, wilful refusal retrospectively renders the marriage void ab initio that a court in Australia could consider whether the marriage is invalid and then have to decide between the law of the forum and the petitioner’s domicile.

Essential validity – the exceptions – the rule in Sottomayer v De Barros. SOTTOMAYER V DE BARROS (NO 2) (1978) LR 5 PD 94

·       Facts

o    Two first cousins wanted to get married

o    He was domiciled in England, she was domiciled in Portgual

o    English law doesn’t prevent cousins getting married, but under Portuguese law could only marry first cousin if received Papal dispensation

o    She didn’t do this and got married

·       Held

o    When considered validity in England – she didn’t have essential validity

o    If the only thing that is missing from her essential validity is the fact she did not get consent, will override this problem

o    Exception is if

§   The marriage is celebrated in Australia;

§   One party is domiciled in Australia

§   The other party is not domiciled in Australia – and

·       Does not have capacity to marry under the law of the place of domicile but

·       Would have capacity to marry if domiciled in Australia

§   And the incapacity relates to consanguinity and can be overcome by Papal dispensation, that was not obtained

MILLER V TEALE (1954) 92 CLR 406

·       HCA reluctantly accepted the role in Sottomayer v De Barros (No 2) was law in Australia, but only applied in cases where such an incapacity can be removed by a special consent or dispensation (see above)

·       Still has to be determined in Australia whether a restraint attached to a decree recognised in Australia on one of these grounds would also be recognised

o    HCA limited this to cases where the limitation was imposed on both parties to the decree merely to prevent remarriage before the time period for appealing against the decree absolute had expired

 

Largely governed by common law and aspects of Marriage Act 1961 (Cth) that modify common law eg common law (canon) marriages solemnised in Australia are not recognised. Therefore need to distinguish between formal and essential validity. Legislation inserts essential requirements into this union.

Section 23(1)(c) of the Act precludes recognition of a marriage solemnised in Australia in accordance with the requirements of a common law marriage, but that did not satisfy the formal requirements specified in s 48 of the Act.

 

 

Generally lex domicili, except:

·       Marriage Act s 10(1)(b) – person must be of age both in domicile and Australia for essential validity

·       Where lex domicile would not recognise a divorce, the capacity to marry might be determined by the

lex domicile at the time of the subsequent marriage rather than initial marriage: Schwebel v Unger

 

Essential validity is determined by the lex domicili at the time of the marriage. If at that particular point in time, a divorce which was obtained earlier but the person’s new domicile recognises that divorce, will apply that new domicile.

A marriage entered into in Australia is governed entirely by the lex loci celebrationis after 1986. Validity of marriage solemnised in Australia to be determined by the Law of Australia, and common law expressly excluded: ss 23A Marriage Act 1961 (Cth).

Doesn’t matter what your domicile is, will recognise that marriage as valid. No longer requires you to consider the essential validity of the marriage in accordance with the domicile of the parties. Will consider it valid marriage if foreign parties marry in Australia even if the lex domicili doesn’t consider it to be valid. If signatory to the convention, that country must regard it as valid as it is marriage according to the lex celebrationis.

Part III Div 2 only allows a marriage to be declared invalid if:

·       At the time of the marriage, one party is already lawfully married to someone else

·       The parties are within the prohibited relationship

·       The marriage does not comply with the Act’s requirements as to form

·       There was no reality of consent

·       One party was not of marriageable age

Overall policy is to favour validity of marriages that are valid overseas. Structure of Pt V supports this general aim. Pt VA applies to any marriage solemnised in a place outside Australia – and at any time – therefore has both prospective and retrospective application.

Marriage Act 1961 (Cth) ss 11, 23A, Part VA

·       The Act’s introduction of lex loci celebrationis means that for marriages entered into outside Australia

o    Will be valid if recognised as valid by either

§   The lex loci celebrationis OR

§   The common law rules of private international law

 

Legislation encourages the recognition of marriages. If our legislation doesn’t allow your marriage to be recognised, allows you to have recourse to the common law.

 

Section 88A implements Hague Convention (Chapter II). Adopts primacy of lex loci celebrationis s 88C.

Intention is to make the validity of the marriage entirely dependent on the lex loci celebrationis. No longer requires you to look at the essential validity of the marriage. This is different to marriages in Australia s 88C – applies to all foreign marriages, if it is valid in a foreign country it will be valid here.

If marriage is valid at time of marriage according to local law (or at time that validity falls to be determined) then recognised in Australia as valid, subject only to exceptions in s 88D. If there is a marriage recognised somewhere else, will recognise it here – exception if no real consent, s 88D(1). Section 88D(2) mirrors Article 23B.

Marriage valid in Australia if the marriage ss 88C and 88D

·       Was at the time it was solemnised, valid under the lex loci celebrationis ss 88C(1)(a) or, at the time of validity of marriage is being determined, been validated by the lex loci celebrationis: s 88C(2)(a) AND

·       The marriage is ‘essentially’ valid under the law of Australia: s 88D(2) – (3)

 

If void or voidable under the lex loci celebrationis then not recognised MA s 88D(4) – therefore could not grant declaration of validity. The legislation is constructed specifically to give effect to the lex loci celebrationis.

Marriage Act 1961 ss 88E(1) and (2)

Marriage recognised when

·       The marriage is recognised as valid under the common law rules of private international law; and

·       If one party to the marriage was domiciled in Australia, both parties were of marriageable age

 

Marriages that do not fall into what is discussed in s 88E can still be validated by the common law eg formal and essential validity of the marriage.

Common law is therefore still relevant but only where:

·       Marriage is invalid by the local law because of failure to comply with formalities of that law, but this might be considered a common law marriage: Savenis v Savenis; OR

·       Marriage is invalid in some essential validity respect by the local law, but valid in all other respects by the law of the domicile; OR

·       Although valid by local law, falls foul of an exception in s 88D, and that exception does not apply at common law, the marriage being valid at common law

Thus the legislation gives you a second go – if can’t get recognised under the legislation where merely gives effect to lex loci celebrationis, can still try under common law which looks to essential and formal validity, and the common law may fill the gap by applying the canon law.

Pt VA expressly denies the use of the incidental question method in determining whether a marriage solemnised in a place outside Australia should be recognised: s 88F. Therefore, if it is necessary to know

whether an overseas marriage is valid to determine whether a woman is entitled to an inheritance as the testator’s wife, that is to be determined by the rules of Pt VA and not the incidental question method, by the law governing the primary question of succession.

 

 

 

If it is valid at local law, it is valid in Australia – this is simply what s 88C does. As long as requirements of s 88D

are complied with.

If not married or the local law does not recognise this, the next question is whether it is valid in Australia. Just because it is invalid in the place obtained, doesn’t mean invalidated. Although may not do so under statute, can do so under common law and may be able to get it validated because of religious exception that rectifies formal validity. Still require s 88D(2) which says have to be over 18 – this is always required. The one exception is s 88D(3) – may recognise if at the time want to be validated, over 16 even if at the time they were married they were under 18 (or even 16.)

DISSOLUTION AND ANNULMENT

 

 

Determined within Australia and outside Australia – need to know the law of the domicile. Every marriage entered into prior to the changes may have a foreign element. Those that post-date legislation do not have this effect.

 

 

 

 

Marriages that pre-date legislation are driven mostly by CL but the Act still has some pre-dating aspects. When it is governed by CL there are two choice of law rules – formal and essential validity. The only extent to which the Act changes the CL is in relation to the age of marriage, won’t recgonise marriages where lex domicile allows it to be under 18 years.

After 7 April 1986, domicile plays no part in determining validity – only lex loci celebrationis.

 

 

 

 

The legislative scheme in Australia is designed to give couples every opportunity to have their marriage recognised in Australia. If something prevents it from being recognised under the statutory scheme, eg no formal validity, then the statutory regime allows you to apply the CL regime. In place of the CL concept of essential validity, the legislation imposes an Australian essential validity of marriage by requiring you to not breach certain conditions s 88D. However, if missing element of statutory scheme, can rely on CL.

Matrimonial causes is a federal issue. It is defined to include proceedings in relation to:

·       Dissolution of a marriage (divorce)

·       Annulment of a marriage

·       Validity of a marriage

·       Maintenance and property distribution, s 4 FLA

FLA does covers 3 things: (i) jurisdiction; (ii) choice of law rules; (iii) when you can recognise a foreign divorce or a foreign annulment.

FLA has exorbitant jurisdiction and quite readily entertains applications. MA does everything in its power to have union recognised as marriage, and FLA does everything in its power to enable people to dissolve a marriage. Recognition of divorces and annulments becomes mirror image of jurisdiction powers of courts to hear these matters.

On date the application is filed either party is:

·       Australian citizen

·       Domiciled in Australia

·       Ordinary resident and has been for 1 year

 

On date application is filed either party is:

·       Australian citizen

·       Ordinary resident

·       Present in Australia

 

·       Common law – law of the forum

·       Ss 48, 51 & 53 FLA – law of the forum

o    Decree of dissolution can be made even if some or all of the circumstances on which the decree is based took place outside Australia

·       Substantive law – only one ground for dissolution (12 months continued separation)

·       A decree of nullity must be based on ground that the marriage is void (not voidable)

·       Determined by applying the relevant choice of law rules for the validity of the marriage

o    Lex loci celebrationis if under s 88

o    At CL look at combination of lex loci celebrationis and domicile of the parties/lex domicilii

The rules for the recognition in Australia (including Norfolk Island) of a decree of dissolution or annulment made in accordance with the law of a foreign territory are set out in s 104 of the FLA.

Problems come in with regards to recognition of foreign annulments/divorces. The underlying legislative intent is to recognise divorces/annulments – gives effect to the 1970 Hague Convention on Recognition of Divorces and Legal Separations.

There are two schemes:

·       Recognition on statutory grounds, s 104(3)

o    Two general conditions must be satisfied

§   ‘Effected in accordance with the law of an overseas jurisdiction’

·       Requires that it be effected or recognised in the connected place, not necessarily made there, s 104(8) FLA

o    Need not be the result of civil litigation eg talaq or get, so long as it leads to an effective dissolution or annulment in a connected place

§   Party to the decree must have had some personal connection with that foreign place

o    Governs the matter entirely – only through s 104(5) that you can consider CL scheme

·       Recognition at common law, s 104(5)

o    Common law does not operate in cases where it overlaps with the statutory grounds

o    Any restrictions on statutory grounds cannot be used to read limitations into the effect of the common law rules

o    CL does not have the ‘effected’ requirement – must be obtained in foreign jurisdiction subject to two exceptions

 

In its express terms, s 104(8) only helps when the second place is ‘another overseas jurisdiction’. It does not help when the second place is Australia. However, it might still be recognised on a statutory ground eg a Jewish divorce in Melbourne is still ‘effected in accordance with the law’ of Israel, and therefore, without resorting to the extension of s 104(8) is recognised in Australia on the basis of the parties’ Israeli domicile.

ARMITAGE V ATTORNEY GENERAL [1906]

 

 

·       This is the one exception and explains the way the process might work at CL

·       Facts

o    Parties domiciled in NY and obtained divorce in SD

o    NY law recognised SD divorce – parties had no connection with SD

o    SD recognised divorce based on party’s presence

o    Parties wanted divorce recognised in England

o    At time, CL of England said the basis for recognising foreign divorces is simply the lex domicile

·       Held

o    This case extended the CL principle

o    Because the choice of law rule in NY was the same as in England, will recognise NY’s recognition of the SD divorce as long as the parties’ connection with NY was domicile

o    This idea is entrenched in the legislation

§   CL only does it in this connection – that is, connection between England and NY is domicile

Section 104(10) means ‘in relation to divorces, annulments and legal separations effected whether by decree, legislation or otherwise’. This captures religious divorces such as talak or get.

For the statutory grounds, the personal connection must have existed at the time the proceedings for separation, dissolution or annulment were commenced in the foreign place: s 104(1). The common law tends to require this connection also.

The mere presence of a party to a decree in the place where it was made is not a sufficient connection with the place for the decree to be recognised on a statutory ground. However, the effect of Travers v Holley is probably that this will be sufficient at common law.

A foreign decree will be recognised under statute if, at the tie proceedings were commenced, the respondent was ordinarily resident in the foreign place: s 104(3)(a).

It will also be recognised in some cases where the applicant was ordinarily resident in the foreign place: s 104(3)(b), provided that:

·       The applicant must have been ordinarily resident in the foreign place at the time proceedings were commenced

·       The applicant must have been ordinarily resident in the foreign place for at least one year immediately before the commenced of the proceedings or the foreign place was the last place where the parties had cohabited

The rule in Travers v Holley probably has the effect that a foreign decree of annulment will be recognised at common law if, at the time proceedings were commenced, the applicant was ordinarily resident in the foreign place.

 

A foreign decree of dissolution or annulment will be recognised under statute if, at the time proceedings were commenced, either the applicant or the respondent was domiciled in the foreign place: s 104(3)(c).

This is the same at common law.

The FLA deems a national of a plurilegislative nation to be a national of all its parts eg a Scot si deemed to be an English national. A foreign decree will be recognised under statute if, at the time proceedings was commenced, the respondent was a national of the foreign place: s 104(3)(d). A foreign decree will be recognised under statute in some cases where the applicant was a national of the foreign place if the following conditions are satisfied:

·       The applicant must have been a national of the foreign place at the time the proceedings were commenced

·       The applicant must have a more substantial physical connection with that foreign place

o    Sufficient if the applicant had also been ordinarily resident in the foreign place at the time proceedings were commenced

o    Sufficient if the applicant had also been ordinarily resident in the foreign place for one continuous year falling, at least in part, within the two years before proceedings commenced

o    Sufficient if the applicant had been present in the foreign place at the time proceedings were commenced and the last place where the parties cohabited had been another foreign place, and at the time proceedings were commenced, the law of the second place did not provide for the separation, dissolution or annulment of marriages

The rule in Travers v Holley probably enables the recognition of a decree of separation, dissolution or annulment when, at the time proceedings were commenced, the applicant was merely a national of the foreign place.

A dissolution or annulment of a marriage…effected in accordance with the law of an overseas jurisdiction shall be recognised as valid in Australia where:

·       The respondent was ordinarily resident in the overseas jurisdiction …

·       The applicant … was ordinarily resident in the overseas jurisdiction … and [additional requirements of ordinary residence or cohabitation are also met]

·       The applicant or the respondent … was domiciled in the overseas jurisdiction ...

·       The respondent was a national of the overseas jurisdiction …

·       The applicant … was a national of the overseas jurisdiction … and [requirements of substantial physical connection – ordinary residence]; or

·       The applicant … was a national of, and present in, the overseas jurisdiction … and the last place of cohabitation of the parties to the marriage was an overseas jurisdiction the law of which …did not provide for … dissolution … annulment … or legal separation …

If one of these connections is satisfied with the place that got the divorce or the place that recognised the divorce obtained elsewhere, will recognise it.

Common law scheme is from s 104(5) FLA. Grounds of recognition are:

·       Made in the place of marriage

o    Mitford v Mitford [1923] P 130

o    Corbett v Corbett [1957] 1 All ER 621

o    Merker v Merker [1963] P 283

 

·       Made in a place with a real and substantial connection to a party

o    Indyka v Indyka [1969] 1 AC 33 (dissolution)

o    Law v Gustin [1976] Fam 155 (annulment)

o    In the Marriage of Dornom [1984] FLC 91 – 556 (cf 104(3) FLA)

 

INDYKA V INDYKA [1969] 1 AC 33

·       Facts

o    Czech woman married to English man

o    W lived in Czechoslovakia and obtained a divorce there and simply wanted that divorce recognised in England

o    Problem was the English CoL rule for recognition of divorce was lex domicili – had to be divorced according to law of domicile

o    In 1969, married women followed domicile of husband so she had an English domicile even though living in C

·       Held

o    If English choice of law rule is lex domilcii, has to be divorced according to law of England

o    As soon as court recognised this saw problem with applying this rule

o    New rule – place by which person who seeks to have divorce recognised has a real and substantial connection with the place that gave them the divorce

o    Will recognise divorce so long as you obtain it from a jurisdiction where you have a real and substantial connection

o    Domicile may be real and substantial connection, but could be somewhere else

o    This has been extended at CL so not only will we recognise a divorce obtained in a place where you have a real and substantial connection but if the place where you have a real and

substantial connection recognises a divorce you obtained in another jurisdiction, will also recognise that divorce

o    Like Armytage but don’t require domicile, just real and substantial connection

 

·       Recognised in a place with a real and substantial connection

o    Mather v Mahoney [1968] 3 All ER 223

o    Messina v Smith [1971] P 322

 

·       Made in a place exercising a reciprocal jurisdiction

o    Circumstances enabling a court in Australia to hear and determine proceedings for dissolution and annulment are deemed to allow a foreign court to exercise such a jurisdiction, and such decrees recognised

o    Travers v Holley [1953] P 246

o    Robinson-Scott v Robinson-Scott [1958] P 71

 

TRAVERS V HOLLEY [1953] P 246

 

·       Facts

o    Woman in NSW and husband deserted her

o    H had English domicile and returned to England

o    Wife sought to have divorce in NSW

o    NSW had legislation (to overcome CL problem) which allowed wife who had been in jurisdiction for 3 years and had been deserted to obtain divorce

o    NSW readily divorced

o    When wanted to have divorce recognised, England said their rule for recognition of divorce was lex domicli – woman’s’ domicile followed husband’s domicile

o    Divorce not in accordance with law of England, in accordance with law of NSW

o    English legislation had exactly the same exception as in NSW

·       Held

o    On the basis that England had the same exception to the rule as NSW did, the English court recognised the NSW divorce eg reciprocal jurisdictional capacities

o    This effectively became the CL rule

o    As long as have reciprocal basis for recognition, have recognition of divorce and annulment

o    The foreign court need not have assumed jurisdiction on the same legal ground as the forum court could

§   The circumstances before the foreign court need only be such as would permit the forum court to exercise jurisdiction

o    This rule also applies to annulments

o    Irrelevant that the forum court did not have jurisdiction to determine similar proceedings at the time the foreign court made the decree: Indyka v Indyka

o    Do not have to have reciprocal substantive grounds – it must be reciprocal jurisdiction

 

ROBINSON-SCOTT V ROBINSON-SCOTT [1958] P 71

·       Court in Zurich granted wife divorce assuming jurisdiction on the ground of domicile (as the concept was understood in Switzerland) because under Swiss law she was taken to be domiciled in Zurich

·       Decree recognised in England, even though under the law of England, the wife was domiciled in England

·       Husband had deserted her and she had lived in Zurich for at least three years before applying for the divorce

·       If such proceedings had arisen in England, a court could also have exercised jurisdiction in proceedings for dissolution

MOUNTBATTERN V MOUNTBATTERN [1959] P 43

 

·       Facts

o    Similar to Armitage, couple in NY but merely resident in NY for 3 years and got a divorce in Mexico

o    Mexican divorce recognised in NY – in Armitage, NY recognised SD divorce

o    Question was at CL will England recognise the divorce obtained in Mexico b/c it was recognised in NY

§   In Armytage the court said will recognise it if the basis which the parties had connection with NY was domicile

·       Extended to real and substantial connection

§   Here no real and substantial connection nor domicile – only residents for 3 years

·       Held

o    Refused to recognise divorce

§   If merely recognition of divorce obtained in 3rd jurisdiction, require either domicile or real and substantial connection

o    Authority for real and substantial connection was Indyka – she was a Czech national

§   Residence for 3 years is probably insufficient as Indyka interpreted it

§   If resident in NY and divorce obtained in NY there would have been no problem of recognition

o    CL structure narrower if trying to get divorce obtained by 3rd jurisdiction

o    Would be reversed if the rule in Travers v Holley and s 104(8) were combined

On the basis that:

·       A party to the marriage has been denied natural justice

·       Recognition would be contrary to public policy

·       Decree does not comply with the law under which it was made

o    This is more controversial – it is unlikely the court will consider the law that the foreign court applied

·       Ss 104 (4) – (5); Igra v Igra [1951] P 404; Re Meyer [1971] P 209;

 

PEMBERTON V HUGHES[1899] 1 CH 781

·       English court of Appeal held it would not investigate the propriety of the proceedings in the foreign court

·       Stated this principle on the assumption that the matter before the foreign court was one with which it was competent to deal

CONTRACT

Contract is a product of the will of the parties and is intended to create legal rights and obligations with reference to some legal system which is the proper law of the contract.

The proper law of the contract is:

‘…the system of law by which the parties intended the contract to be governed, or, where their intention is neither expressed nor to be inferred from the circumstances, the system of law with which the transaction has its closest and most real connection’

Dicey & Morris

The system of law by which the parties intended to be governed is by including a choice of law clause – this is the subjective approach. The alternative is the object of determination or objective approach. The proper law of the contract is the Australian choice of law rule of contract. The relevant time for determining the precise content of the proper law is the time when proceedings inr elation to contract are commenced.

Legislation has superseded certain contracts, and will state the substantive law which cannot be contracted out of.

·       International carriage of goods by sea

·       International sale of goods

·       Insurance

·       Hire purchase

·       Consumers sales

The framework of public international law – the assumption that a ‘proper law’ must be a ‘municipal law’: Shamil Bank of Bahrain v Beximco[2004] 2 Lloyd’s Rep 1. Though may contain terms of a contract derived, eg from Sharia law – though still referenced to some municipal system of law. They would only be incorporated into the contract merely as a term, subject to the proper law of the contract whether express or implied.

Proper law must be the law of a legal entity.

Contract and contract related claims – these are not based on the contract itself, but so closely connected that they are governed by the contract:

·       Quantum meruit

·       Direct actions against insurers under compulsory third party insurance schemes

·       Actions for indemnity: Sweedman v Transport Accident Commission [2006] HCA 8

·       Assignment of benefit of insurance contract

 

RAIFFEISEN ZENTRALBANK OSTERREICH AGC V FIVE STAR GENERAL TRADING LLC

Shipowners                                                                                         Insurers

(Dubai)                               Insurance contract                                    (France) (English proper law)

 

Assignment (governing law?)

Bank (Austria)

·       Facts

o    Assignment of benefit of insurance contract between ship owner (Dubai) and insurers (France)

o    Contract indicated that the contract was to be governed by the law of England even though the parties were not English and the contract had nothing to do with England

o    Ship owner assigned rights under insurance contract to Austrian bank

o    Question what rule governed the assignment of rights under the contract

·       Held

o    The assignment of rights was so connected to the contract as to be governed by the proper law of the contract

o    Because parties chose expressly for law of England to apply to contract

No renvoi – where parties have chosen proper law, assume that they have chosen the internal law. Doesn’t seem conceivable that parties would choose a legal system to govern their contract knowing that jurisdiction would send you onto another jurisdiction.

Neilson v Overseas Projects Corporation of Victoria Ltd suggested that renvoi is an issue which needs to be taken into account in a range of PIL issues including contract. WASC picked up on this issue in O’Driscoll v J Ray McDermott SA.

O’DRISCOLL V J RAY MCDERMOTT SA [2006] WASCA

 

 

·       Contract between parties in WA and Singapore, and choice of law for contract was the law of Singapore

o    It was the law with which the contract had the most real and substantial connection

·       Issue came up whether limitation period ought to be applied

o    Following Neilson and Pfieffer, limitation periods are substantive

o    If choice of law is Singapore, Singaporean limitation period should apply

§   Because we consider limitation periods to be substantive, we also apply Singaporean choice of law rules

·       No conflict arose

·       Raises the possibility that renvoi and choice of law rules may be a pertinent issue

·       The court’s method plainly rests on the assumption that the doctrine of renvoi was applicable in the case (and so, at least, anywhere the proper law is to be objectively determined)

AKAI PTY LTD V THE PEOPLE’S INSURANCE COMPANY LTD (1996) 188 CLR 418

·       Two-tiered approach

o    Subjective proper law

§   Express choice

§   Implied choice

o    Objective proper law

 

The common law recognises that, at the time a contract is made, the parties may provide that the contract is to be governed by the law of a particular place: Gienar v Meyer.

VITA FOOD PRODUCTS INCORPORATED V UNUS SHIPPING CO [1939] AC 277

·       Choice of law recognised provided ‘the intention expressed is bona fide and legal, and provided there is no reason for avoiding the choice on grounds of public policy

·       Facts

o    Nova Scotia ship owner and NY consignee

o    Choice of law in the contract itself was English law

o    Contract also contained a term which exempted the ship owner from liability in negligence

o    The ship ran aground on the way to NY and was stuck there for some time and the cargo of fish was damaged

o    Consignee sued for negligence

§   Ship owner raised defence of exemption clause in the context that English law would give effect to the exemption clause

·       Held

o    NS court said the contract has nothing to do with England but the court was willing to give effect to the contract and the choice of law clause

§   If the English court recognised the contractual exemption as valid, the court would give effect to that

o    The law chosen by the parties will be the proper law of the contract provided the intention expressed is bona fide and legal

1.       Bad faith (debatable)

o    May be that the court will not respect your choice if you choose in bad faith – might apply law of the forum or objective approach

o    Golden Acres Ltd v Queensland Estates Pty Ltd [1969] Qd R 378; (1970) 123 CLR 418

§  One party to the dispute had tried to establish an estate agency in Qld without registering themselves under Qld legislation

§  Indicated choice of law was meant to be the law of Hong Kong

§  Two matters arose

·       Fact there was Qld legislation that required them to be registered

·       Choice of law clause was such to avoid Qld legislation, and thus was in bad faith

§  Legislation was overriding in any effect – it becomes paramount and overrides degree to which the choice of law governs that issue

·       Normally point 3 which captures point 1, difficult to imagine where bad faith stands on its own

 

2.       Unconnected law (debatable)

o    Some states require a connection with that State

o    Not required in Australia and the UK

o    The courts are only likely to be looking for a reason not to apply an unconnected law when the effect of enforcing the choice would be a result outrageously offensive to the legal or moral standards of the forum

 

3.       Overriding legislation

o    To the extent that contract does not infringe certain legislation, can apply choice of law

o    Eg s 11 Carriage of Goods by Sea Act 1991 (Cth) – complete

o    Eg Trade Practices Act 1974 (Cth) – partial

 

4.       Public policy

o    If giving effect to choice of law contrary to public policy, a court will not give effect

Implied from contractual terms such as:

·       Choice of forum

·       Arbitration clause

·       Technical language eg if contract framed using language common to a particular legal system, indicates parties wanted their rights and duties interpreted according to that system

By themselves, they may not be sufficient, but together they may show a stronger intention. These are not limited, so there may be a range of factors which show what the choice of law is going to be.

See Compagnie D’Armement Maritime SA v Compagnie Tunisienne De Navigation SA[1971] AC 572

The objective proper law is the legal system with which the contract has its most closest and real connection – its ‘seat’. The terms of the contract as a whole and the circumstances surrounding it at the time it was formed, must be taken into account. Factors include:

·       Place of contracting (lex loci contractus)

·       Place of performance

·       Place of residence or business of parties

·       Nature of the subject matters (eg immovable property)

·       Currency of payment

·       Flag of vessel carrying goods

 

If the parties subjective intention cannot be determined, only then do you objective determine what the proper law of the contract is. To this list can add choice of forum, arbitration clause etc.

Two problems arise:

1.       Possibility of distinguishing between an implied choice and a place with the closest and most real connection

2.       Evenly balanced factors as to the latter – uncertainty that the formula has brought to the objective determination of the proper law and the associated difficulty in predicting what it would be without resorting to litigation

o    James Miller& Partners Ltd v Whitworth Street Estates (Manchester) Ltd

 

JAMES MILLER& PARTNERS LTD V WHITWORTH STREET ESTATES (MANCHESTER) LTD [1970] AC 583

 

 

·       Facts

o    Scottish builder entered into contract to renovate property in Scotland owned by an English company

o    Used a standard form contract (English contract) produced by the Royal Institute of British Architects

§   K provided that when a dispute arose, the President of the RIBA would appoint an arbitrator

o    Dispute did arise, President appointed an arbitrator in Scotland and began arbitration according to Scottish law

o    Got to a point where needed to clarify issues of law

§   Scottish law required arbitrator to do this but English law required a court to determine

·       Held

 

How proper law is determined
	Subjective proper law (implied choice)	Objective proper law
English law	Viscount Dilhorne	Lord Hodson Lord Guest
Scots law		Lord Reid Lord Wilberforce

o    Four judges thought it was impossible to infer the intention of the parties

§   English standard form contract – most real and substantial connection with England

§   Building in Scotland, Scottish arbitrator, one party Scottish builder so Scottish law should apply

o    Viscount Dilhorne

§   Thought because the parties chose an English insurance contract, must have intended English law ought to apply

§   Acknowledged that if this was not the case, would have considered Scottish law to have the most real connection

o    Thus the decision turned on whether Dilhorne though the contract inferred intention

o    Opposite result would have been reached if he had decided differently on the question of whether it was a case of implied choice or closest and most real connection

Every contract needs to have a proper law at the time the contract is entered into. Can proper law float? Three situations:

·       There is no provision for the proper law, but on the happening of a given event the law of State A is the proper law

o    Problematic because no proper law at the time the contract was entered

·       The law of State X is the proper law, but on the happening of a given event the law of State Z is the proper law

o    As long as indicate what the proper law is to be, that’s fine

·       Some time after the contract has been formed, the parties agree expressly that the law of State Y is now to be the proper law

o    No problem when parties enter into a contract and failed to express what the proper law was and then somewhere down the line they realize they have failed and agree what the proper law is to be

THE ARMAR [1981] 1 ALL ER 498

·       Doubts as to the first proposition – contract requires, at the start, a proper law

·       Proper law attributable at the time the contract made

o    A contract has to have a proper law at the time it is made, and the attribution of a proper law to a contract could not be made dependent on a contingency that may or may not subsequently occur

More than one proper law of the contract may appear to exist – three situations:

1.       True depeçage – ie to ‘divide’

2.       Incorporation

3.       More than one contract

WANGANUI-RANGITIKEI ELECTRIC POWER BOARD V AUSTRALIAN MUTUAL PROVIDENT SOCIETY (1934) 50 CLR 581 AT 604 PER EVATT J

·       ‘…the whole story, 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

governing law of the contract’

 

LIBYAN ARAN FOREIGN BANK V BANKER’S TRUST CO [1989] QB 728

·       K between bank and 1 of its customers

·       Had two bank accounts for customer, one in England and one in NY

·       Court said relationship to bank account in England, English law governed that contractual relationship but for NY bank account, was to be governed by NY law

FORSIKIRINGSAKTIESELSKAPET VESTA V BUTCHER [1988] 2 ALL ER 43

·       Facts

o    Norwegian contract where express choice of law was Norway

o    Within insurance contract, security term that required property to be under surveillance for 24 hours

o    Insurer entered into reinsurance contract – said to be governed by English law

§   Incorporated by reference one of the terms of the original insurance contract ie security clause

·       Held

o    Although express choice of law clause was English law, clause about the security was to be governed by Norwegian law

Where term, governed by law of State A, is simply incorporated into the contract by its terms, with the contract governed by the law of State B.

Incorporated terms requires validity to be determined by the proper law of the contract – law of State B. Rights and duties from legislation in one jurisdiction are simply contractual terms, but choice of law is another jurisdiction.

VITA FOOD PRODUCTS INCORPORATED V UNUS SHIPPING CO [1939] AC 277

·       The proper law was the law of England but the contract provided that in some cases the provisions of Untied States or Canadian legislation were to apply

 

Proper law does not govern all aspects of the formation and performance of the contract. What law would govern the formation of the contract if the formation is what is bringing the contract into question.

Formation: parties capacity to contract, need to comply with formalities etc.

Performance: whether contract is enforceable, whether it is legal, obligations implied by law, failure to perform etc.

 

Recognise proper law as expressed cannot apply If what is in question is the very validity of the contract. Can apply that law as the putative proper law of the contract – consistent authority for the fact that this is as close as can get to determining what the parties intended the substantive law to be.

COMPANIA NAVIERA MICRO SA V SHIPLEY INTERNATIONAL INC, THE PAROUTH [1982] 2 LLOYD’S REP 351

·       The law of the cause for issues relating to the formation of a contract should be the putative proper law

MYNOTT V BARNARD (1939) 62 CLR 68, 80

·       Putative proper law determined objectively – not that of parties choice

·       Even though parties have chosen proper law, probably better to determine the proper law objectively

·       Approach that seems to be favoured in relation to a whole lot of matters

 

OCEANIC SUN LINE SPECIAL SHIPPING CO INC V FAY (1988) 165 CLR 197, 225

·       Law of the forum

Once something is procedural, will be determined by lex fori – if substantive, then question arises whether objective proper law applied or subjective as determined by parties.

·       Contracting capacity – objectively determined putative proper law (determined by closest and most real connection)

·       Offer and acceptance – objectively determined putative proper law

·       Statutes of frauds – much uncertainty, probably putative proper law

o    Much more narrowly construed than they were bringing into question whether procedural or substantive – result of this case is probably substantive: John Pfeiffer

o    If they are substantive and result is K, should have been in writing, what jurisdiction do we refer to?

§   Expressly chosen jurisdiction of the parties or objectively determined by the court

·       Consideration - objectively determined putative proper law

·       Reality of consent – uncertain but likely to be putative proper law

 

MOUNT ALBERT BOROUGH COUNCIL V AUSTRALIAN TEMPERANCE AND GENERAL LIFE ASSURANCE SOCIETY [1938] AC 224

·       Proper law as chosen or where does not exist, objectively determined

It is not illegal in either the law of the forum or under the proper law, but it is in the place of performance: Ralli Bros v Compañia Naviera Sota y Aznar.

RALLI BROS V COMPAÑIA NAVIERA SOTA Y AZNAR [1920] 2 KB 287

·       Facts

o    The forum was England

o    The proper law of the contract was English

o    The contract was illegal in the place of performance, Spain

·       Held

o    The court would not enforce a contract illegal in the place of performance

·       How to interpret the result?

o    The way in which the case expressed that principle makes it unclear as to whether it is a choice of law rule or an internal rule of England

§   Choice of law – effect of depeçage

·       Contract will be governed by the law of England, but the extent of performance’s illegality will be determined by the place of performance

o    If this is the case, have 2 proper laws of contract

o    Two ways to determine

§   Is the rule a choice of law rule?

·       If so, the contract will not be enforced by a Queensland court whenever it is illegal in the place of performance

·       This notion was determinative in Ralli Bros independently of the proper law, and should be applied to all multi-state contract cases where it is relevant

·       Eg Royal Boskalis Westminster NV v Mountain [1999] QB 674

§   Is the rule an internal rule of common law countries?

·       Therefore, the rule was applied in Ralli Bros because the (internal) law of England was the proper law

·       If so, the contract will not be enforced by a Queensland court whenever

o    The proper law of the contract is the law of a common law country; AND

o    The contract is illegal in the place of performance

·       Toprak v Finagrain [1979] 2 Lloyd’s Rep 98, 114

·       Euro-Diam Ltd v Bathurst [QB] 1, 14

·       Carriage of Goods by Sea Act 1991 (Cth)

·       Insurance Contracts Act 1984 (Cth)

·       Sale of Goods (Vienna Conventions) Acts

·       Trade Practices Act 1974 (Cth)

Australian Law Reform Commission 1992 Choice of Law Report

“…the proper law of the contract as developed by the common law is ill defined and uncertain in scope and inadequate to deal with modern developments in international contracts”

TORT

PHILIPS V EYRE (1870) LR 6 QB 1, WILLIES J

In order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England … Secondly the act must not have been justifiable by the law of the place where it was done.

ANDERSON V ERIC ANDERSON RADIO & TV PTY LTD (1965) 114 CLR 20

·       Australia – justiciability

·       Approach initially to say these were threshold issues

o    Then the action would be available in Australia – matter of justiciability

o    Hadn’t yet determined by what law the matter would be heard in Australia

·       Matter in tort which would have been actionable in Australia and the foreign jurisdiction so could be heard in Australia, then the court went on to apply the law of the forum

o    Therefore, was not seen as a choice of law rule but a threshold issue

·       Dominant approach was to see these as choice of law rules

o    Had to apply laws of both jurisdictions and only where both jurisdictions allow the action to succeed would be actionable

o    Rigorous burden for P to succeed

 

BOYS V CHAPLIN [1971] AC 356

·       UK – choice of law rule – double actionability rule

·       Facts

o    Car accident in Malta where 2 English servicemen were injured

o    Court saw Phillips as requiring two choice of law rules – application of law of forum and place where tort occurred

·       Held

o    So much of that case had to do with England and the fact it occurred in Malta was so fortuitous, that the minority judgment at least considered an exception to the requirement that satisfy two choice of law rules

§   Double actionability rule seen as appropriate for most cases but not all – should be exception to that, ie proper law of the tort

·       Where so many factors connect it with 1 jurisdiction not the other

BABCOCK V JACKSON 191 NE 2D 279 (1963)

·       United States – proper law approach: Babcock v Jackson

·       Facts

o    Two NY residents go for a drive into Canada and involved in a car accident

o    Passenger wants to sue the driver in negligence

o    Ontario had a statute which prevented passengers from cars suing drivers

§   ‘Guest’ statute – voluntarily went into vehicle and couldn’t sue

o    If applied lex loci delicti, P would not have succeeded in NY

o    Car registered in NY, journey started and was to end in NY, residents domiciled in NY

·       Held

o    While accident occurred in Ontario, so many of the factors would connect it with NY that NY law ought to apply

§   Fashioned the proper law of the tort

§   Not necessarily dictated by lex loci delicti – merely one factor

o    The court is to consider

§   The place where the injury occurred

§   The place where the conduct causing the injury occurred

§   The domicil, residence, nationality, place of incorporation and place of business of the parties

§   The place where the relationship, if any, between the parties is entered

 

BREAVINGTON V GOLDMAN (1988) 169 CLR 41

·       HCA rejected Phillips v Eyre for a number of reasons, but not clear on what the choice of law rule was

·       Part of difficulty had to do with the constitutional circumstances

 

MCKAIN V RW MILLER & CO (SA) PTY LTD (1991) 174 CLR 1

·       HCA returned to Phillips and reformulated two rules, but applied double actionability rule

·       Lasted until 2000

o    Part of reasoning which underpins double actionability rule may apply to earlier cases

·       The double actionability rule was rejected by John Pfeiffer (domestic) and Renault

(international)

o    Don’t have to satisfy law of forum and lex loci delicti, only lex loci delciti

United States

Differs between States, but many adopt proper law approach: Badcock v Jackson 191 NE 2d 279 (1963)

United Kingdom

Abolished rule in Phillips v Eyre (Private International Law (Miscellaneous Provisions) Act 1995) and adopts a proper law approach

Canada

Lex loci delicti with a proper law exception: Tolofson v Jensen [1994] 3 SCR 1022

JOHN PFEIFFER PTY LTD V ROGERSON (2000) 203 CLR 503

·       The rule

o    Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at 540

§   ‘… the common law should now be developed so that the lex loci delicti is the governing law with respect to torts committed in Australia but which have an interstate element’

o    Kirby J at 562 - 3

§   ‘Subject to the Constitution, where the court of the forum has jurisdiction which it exercises and where proceedings for a civil wrong are actionable in accordance with the preceding rules, the court shall, in determining the substantive rights and obligations of the parties, apply to the facts found, the common law of Australia as modified by the statute law of the place where the acts or omissions occurred that give rise to the civil wrong in question’

o    What court had to say about lex loci delicti based on the fact that two jurisdictions were Australian

·       Any exceptions?

o    Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at 538

§   Adopting any flexible rule or exception to a universal rule would require the closest attention to identifying what criteria are to be used to make the choice of law. Describing a flexible rule in terms such as "real and substantial" or "most significant" connection with the jurisdiction will not give sufficient guidance to courts, to parties or to those, like insurers, who must order their affairs on the basis of predictions about the future application of the rule.

REGIE NATIONAL DES USINES RENAULT SA V ZHANG 210 CLR 491

·       Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at 17, 20 – 1

o    The question then is whether, consistently with Pfeiffer, and by way of extension to it, it is the lex loci delicti which should be applied by courts in Australia as the law governing questions of substance to be determined in a proceeding arising from a foreign tort. If so, there is a subsidiary question as to whether, as the respondent would have it, there should be appended to that choice some "flexible exception" doctrine resembling that found in Boys v Chaplin

o    The submission by the Renault companies is that the reasoning and conclusion of Pfeiffer that the substantive law for the determination of rights and liabilities in respect of intra-Australian torts is the lex loci delicti should be extended to foreign torts … and that this should be without the addition of any “flexible exception”. That submission should be accepted

NEILSON V OVERSEAS PROJECTS CORPORATION OF VICTORIA LTD (2005) 221 ALR 213

 

·       This case raised another complexity – renvoi in the case of torts

o    Prior to 2000, considered whether P would succeed by applying two choice of law rules

§   Merely considered internal laws, did not choose to consider choice of law rules

·       Chinese choice of law rule, apply where parties have more substantial and real connection n

o    To get to a point where the court wants to apply this exception, it has to get to a point of applying choice of law rules

·       The effect was that the lex loci delicti (substantive) did not govern the tort

o    Hard rule in Zhang and Pfeiffer says only apply lex loci delicti

§   As soon as bring renvoi, have the possibility of fashioning an exception to the lex loci delicti to the extent that you end up applying the law of the forum

o    Perhaps, following Neilson, not correct to say one choice of law rule

§   True in form but not in substance

·       Flexibility is artificially created – if want that flexibility, why don’t you create – should be an alternative

·       Controversial

o    Supported as

§   Providing flexibility – Keyes

§   Delivering uniformity in outcome between forum and foreign court – Briggs

·       No forum shopping – delivers uniformity of outcome between the forum and the place of the tort

·       Doesn’t come close to addressing lex loci delicti

o    Rejected as

§   Undermining territoriality, predictability, and simplicity – Mortensen

o    Certainly undermined by the fact that relying on a foreign body of law’s choice of law rules and you don’t know what that is/where it will send you

§   If you fashion your own exception to the lex loci delicti, have some control over which body of law will resolve that issue

·       Alternative suggested – exception based on proper law of the tort

o    Rejected by HCA as giving rise to uncertainty

o    Equivocal by Gray

o    Support by Mortensen

o    UK – Private International Law (Miscellaneous Provisions) Act 1995

·       Only exception is public policy – narrowly construed

o    Kuwait Airways Corporation v Iraq Airways Co [2002] 3 All ER 694

§   Claim for conversion held, by the rule in Phillips v Eyre to be governed by the law of the place of the tort – Iraq – as well as the law of the forum – England

§   Iraqi law was also held to have offended English public policy to the extent that, at the time, it violated UN Security Council Resolutions

While it covers the tort itself, what of other issues related to, but not necessarily part of the tort itself, including:

·       Determining the place of the tort?

·       Survival of actions?

·       Wrongful death claims?

·       Interspousal immunity?

·       Indemnities?

·       Contractual defences to tort actions?

The place of the tort is largely determined by the law of the forum, however the process is not quite as simple. Concepts that are embedded in the lex loci delicti jurisdiction inform the way the form court determines where the tort occurred. Where the law of the place of the tort has some role to play as the law of the cause, it is important for the law of the forum to fix one place as the location for that tort.

The mere fact doing this suggests this is an approach of the law of the forum – mechanism by which try and determine what the lex loci delicti will be.

DISTILLERS CO (BIOCHEMICALS) LTD V THOMPSON [1971] AC 458

·       The 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 the cause of action occur?

·       May depend on the tort alleged to have occurred

o    If tort alleged is negligent manufacture, then place of manufacture

o    If tort alleged is negligent failure to warn, then place where product marketed or sold

 

Misrepresentation – where communication was received: Voth v Malindra Flour Mills (1990) 171 CLR 538

Defamation – where publication received in communicable form: M Isaacs & Son v Cook

Maritime accidents – outside any states jurisdiction – the law of the flag (where ship is registered). If in port, usually the port state.

 

 

 

The first is a tort, the second is because of a tort. The tort that exists has to exist for both actions to survive, but could be separate actions from original tort.

Tort occurs in State B and injures one of the parties that would have been a party to that particular matter. Two approaches are possible:

·       Choice of law rule could be applied to the action brought by or against the personal representative

o    Would require survival of actions under the law of the place of the tort

·       Choice of law rule could be applied to the action that was vested in or subsisting against the deceased

o   

Requires a survival of action under the law of the forum Uncertain, but see Kerr v Palfrey [1970] VR 825

Parties who were dependent on the deceased suing in their own right. There are two approaches:

·       Classified as a ‘tort-like’ claim (ALRC) – governed by lex loci delicti

·      

Independent (statutory) claim governed by lex fori, but conditional of tort governed by lex loci delicti Uncertain, see Koop v Bebb (1951) 84 CLR 629

Abolished in Australia in FLA, but exists in other countries.

WARREN V WARREN [1972] QD R 386

·       Could be governed by lex loci delicti (classified as tort); or

·       Lex domicile (classified as an issue of personal capacity

SWEEDMAN V TRANSPORT ACCIDENT COMMISSION [2006] HCA 8

·       Facts

o    Particularly problematic where no fault compensation schemes

o    NSW resident injured a Vic resident in NSW

o    Vic resident in Vic decides to claim compensation from no fault comp scheme under Vic legislation

o    Fund turns around and says going to claim against person who causes injury only to find that there is no indemnity in NSW

§   If applied lex loci delicti, Vic claimant would have no action in an indemnity in NSW

·       Question arises as to whether we should classify an indemnity as a matter of tort or should we classify it as something else

·       Held

o    Will not classify indemnities as tortious but they are quasi-contractual

o    NSW resident responsible for paying not b/c of lex loci delicti, but domicile of claimant requires him to do so

Contract provides an exemption for liability arising from a tort. There are two ways this can be classified:

·       Tortious (lex loci delicti)

·       Contractual (proper law of the contract)

 

Undecided, except that by focusing on the dispute, which relates to the effect of the contractual exemption clause, the matter is more likely contractual.

Place where tort occurred where can’t contract out of liability – if governed by proper law of the contract (usually jurisdiction which allows such clauses) clause will be good defence. If court classifies as tortious, may be struck out.

PRIVATE INTERNATIONAL LAW