Private International Law Notes

Private International Law

Private International Law2010

introduction to private international law Private international lawPrivate 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 2008The common law has traditionally classified multi-state cases as giving rise to one or more of three different issues:1. Jurisdiction Whether the local court, or forum, has the power to hear and determine the case, or whether the contacts the case has with another state or country limit or otherwise restrain the forum courts power or willingness to decide the case2. Recognition and enforcement of foreign judgments Where the case has proceeded to judgment in the other state or country, whether that judgment can be recognised or enforced in the forum 3. Choice of law Even if the forum court has, and will, exercise the jurisdiction to decide the case, whether it will decide the case in accordance with the law of the forum (lex fori), or in accordance with the law of the other state or country Is the forum or foreign law to be the law of the cause (lex causae) that disposes of the case, and how does the forum court choose one or the other? This question is naturally only important if application of the forums 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 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) What rule is applied to decide the matter to determine whether Renault was negligent in the manufacture or design? 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 If you do apply French law, and the French company is liable, how do you get those damages Assuming that Renault has no assets in NSW, how do you get those damages? Recognition or enforcement of a foreign or interstate judgment Hoping that a French court would enforce your interstate judgment

Conflict of law

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) Disowned (English) son disputes the validity of the will If the will is invalid she has died intestate Jurisdiction 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 Under English law and French law, the will is valid Therefore there is no conflict no problem However, French law will only deal with 1/3 of the property Substantive law of England differs from substantive law of France 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? Turns to the conflict of law rules/choice of law rules Under British law, succession to movables is determined by the domicile of the testatrix ie France 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 Sources of pil

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 decisionsThe main source of choice of law rules in Australia remains the common law. Constitutional sourcesThe Commonwealth Constitution includes a number of provisions important to private international law questions within the Australian federation. International conventionsPIL 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 doesnt try to introduce uniform substantive laws, it tries to introduce uniform conflict of law rules. LegislationMost of Australias 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 writingWhy the courts adopt these rules and why they sometimes have difficulties applying the rules.

multistate or foreign element?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 states constituent component (Australia and Quebec) Entities for private international purposesAustralian 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. Private and public international lawSubject matterPublic 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.SourcePublic international law conventional (treaty) and customary international law (practice of nations). Private international law the individual nations municipal law (Federal or State), though some unification through international treaties eg Hague Convention on Exclusive Choice of Court AgreementsObjectives of private international lawWhy does a court ever apply a foreign law why not simply apply the lex fori? What is the policy/theory underpinning PIL?

ConsistencyThe 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 plaintiffs 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. Particular justice 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 countrys or states law will produce a more just outcome than application of the forums. International and interstate comityReciprocity eg respecting that another country has a separate legal system and that legal system will give effect to our laws etc. Recognising that we wont 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. Features of private international law1. 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

jurisdictionIntroductionJurisdiction 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 Very narrow jurisdiction, but nevertheless continues to exist in Australia 2. Jurisdiction in interstate cases Defendant is in another state or territory Special rules about Australia and the legal systems within Australia3. Jurisdiction in international cases Defendant is outside AustraliaJurisdiction at common law1. 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 Actually not the defendant Alternative forum might be harder on the defendant (assuming the alternative forum has jurisdiction) Where the defendant can counterclaimIn 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 doesnt mean the parties have agreed about the choice of law (can have choice of forum clause and a choice of law clause.)Civil procedure process (two stages)1. Claim (writ, application, originating summons) issued when filed and checked in court registry 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) Jurisdiction is perfected when served However, if left when knowing of writ or to avoid service, then jurisdiction is perfected Defendant tagged on flight between Texas and Tennessee when travelling through Arkansas airspace: Grace v Macarthur 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 courts 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 L based in London, C based in Melbourne Contractual dispute about moneys to come out of a theatrical performance C decided to sue L for some of the proceeds that should have come out of this contract C gets writ issued in Melbourne but discovers that L left Melbourne the day before the writ was issued and went to Sydney L subsequently discovers he is going to be sued by C and before anything can happen he goes back to the UK Writ issued on 14 June but never served on L C tried to obtain substituted service on 21 June Held 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) Thus when the writ was issued, the court had no jurisdiction over L The court refused substituted service If D isnt within the jurisdiction when the writ is issued, cant serve writ If L left Australia knowing C would sue, would fall within the courts 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 Territoriality presence within jurisdiction The basic rule by which a courts jurisdiction is established at common law is that the defendant must be amenable to the courts initiating process. It does not matter that the defendants 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 courts jurisdiction. Similar principles apply in personal actions against a company. The company must have some presence inside the forums 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 place2. The business is conducted at some fixed and definite place in the forum3. The business has been conducted in the forum for a sufficiently substantial period Perrett v Robinson Tried to allege that Qld didnt have jurisdiction because D fraudulently led into jurisdiction Failed because D knew exactly what he was doing going for the sole purpose of being served with the writ Consent defendant voluntarily submits1. Submission by agreement Forum clause constitutes a voluntary submission to the jurisdiction of the forums 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 If not expressly stated in terms of contract, unlikely that it can otherwise be inferred 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 Also distinguished from an arbitration clause, in which disputes referred to arbitration in the forum2. Authorising lawyers to accept service of writ Jurisdiction is established once the lawyer is served, and indorses acceptance of service on a copy of the document 3. Appearance Clearest expression of submission to jurisdiction is the entry by the defendant of an unconditional appearance in response to the originating process A person who does not intend to submit to the courts jurisdiction has two alternative courses Person served may refuse to enter an appearance Can enter conditional appearance (except NSW and SA) Person who actively challenges jurisdiction must act consistently with protest against jurisdiction Tacit concession of courts right to hear and determine the merits of the plaintiffs claim will be taken as submission to jurisdiction Appearance

Most states allow you to make a conditional appearance before the court (ie not appearing before court as a defendant because dont accept the courts jurisdiction.) If you appear and do something with that challenge eg raise substantive issues, then youve 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 courts 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 Defendants lawyer makes oral submissions on the merits: Boyle v Sacker Defendant makes a counterclaim on a ground related to the plaintiffs 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 CorporationHowever, 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 in interstate casesJurisdiction 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 1971For 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. Service and execution of process act 1992 (cth)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. Jurisdiction of courts (Cross-vesting) Act 1987 (Cth)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. Jurisdiction in international casesThis is where the defendant is outside Australia. Under common law, a court has no jurisdiction as the defendant is not within the courts 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. Grounds of jurisdiction Domicile or ordinary residence (forum domicilii)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.Contract1. Contract made in the forum Not necessarily clear what made in the forum means Most common way is where acceptance of contract is in Australia 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 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 Ltd2. Breach of contract within the forum Doesnt mean that every part of the breach occurs in Australia, but the breach alleged must occur in Australia This can occur even if the contract is made somewhere else Most common is failure to pay 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 Chani3. Contract is governed by the laws of the forum (proper law of the contract forum clause) 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 courts 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 trialThe use of contract doesnt 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. Tort1. Cause of action arose in jurisdiction (FCA, HCA, NSW, QLD, Tas) wider than simply torts Cost of hospital treatment in NSW was sufficient for NSWSC to find that it had jurisdiction: Renault v Zhang2. Tort committed in forum In all jurisdictions, service outside Australia is permissible in an action founded or based on a tort committed in the forum The tort was failure to inform about the risk of thalidomide: Distillers Co v Thompson Agar v Hyde (2000) 201 CLR 552 Dow Jones & Company v Gutnick (2002) 194 ALR 4333. Damages suffered in the forum Injury sustained, in whole or part, in the forum, from a tort, wherever occurring 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 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 Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491 Dow Jones & Co Inc v Gutnick (2002 10 CLR 575 at 622 These lead to the possibility that jurisdiction exercised only on the basis of the plaintiffs residence Distillers Co v Thompson (1971) Court required to determine Whether alleged wrong constitutes a tort; and Whether occurred to a sufficient degree in the forum The tort was failure to inform about the risk of thalidomide If it was negligently manufactured outside Australia, dont have jurisdiction about negligent manufacture Tort was failure to warn in NSW where they submitted the drug Dow Jones & Company v Gutnick (2002) 210 CLR 575Gleeson 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 defendants 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 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 Property situated in the forumReal 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 AustraliaVictoria v Hansen [1960] Dispute about stamp duty in relation to property Stamp duty merely personal debt, couldnt 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 Unpaid rates falls within property because it is broadly construed Service outside Australia and leave to proceedLeave to serve outside Australia (FCA, ACT, WA) leave of court required: Appropriate case (primae facie case) 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 wont be granted where it is evident that the plaintiff wont succeed, either because it is unlikely they will make out the claim or the defendant has a good defence. If dont 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 That the court was a clearly inappropriate forum (ie a forum non conveniens) to decide the case That the claim had insufficient prospects of success That the claims were not of a kind set out in the grounds of jurisdiction in r 124 Gaudron, McHugh, Gummow and Hayne JJ required a high degree of certainty about the ultimate outcome of the proceedings Facts Action against IRFB by a group of Ps 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) P really has burden that the court is not a forum non conveniens This forum is an appropriate forum to hear this dispute Could argue that Australia is an appropriate forum to hear dispute about injuries suffered in Australia falls under FCA rules Held Without adjudicating matter, court said that alleging tort by IRFB and IRFB was negligent was saying that IRFB had duty of care 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 couldnt see on information before it that duty and breach could be proved Heads of damages themselves are not sufficient they are a precondition but still have to satisfy other requirements Limits possible exorbitant jurisdiction of Australian courts 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 plaintiffs failure at trial merely be likely or probable

JURISDICTION IIreviewCommon law: presence or consent to jurisdiction. Inter-state: Service & Execution of Process Act 1992 (Cth) and Cross-Vesting Acts 1987International: refer to each jurisdictions 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 forumInternational and interstate jurisdictionEven 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. Substantive limits on jurisdiction

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. Foreign immovables British South African Company v Companhia de Moambique [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 persons title to land outside the forum state or a persons right to the possession of land outside the bounds of the forum 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) Increasingly legislative intervention that undermines the Mozambique principle 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 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 Claim against BHP concerning land that had been affected by mining operating in PNG 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 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 At the heart of the matter, the dispute was about immovables/title to/possession of immovables Held 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 landTo 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 trustIf 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 Two brothers had a dispute and one owed the other money Both brothers were residents of WA 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) 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 B argued Mozambique principle Held The court narrowly construed the Mozambique principle 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 As interests The order against the wife and daughter in Australia not to do something in Australia Can restrain Australian resident from dealing with property in Malaysia If the matter is simply about a personal obligation, they will not construe this as falling within the Mozambique principle At CL there is still this exception Foreign state immunityForeign 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) 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 and consular immunityDiplomatic 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. Restraints on proceedings 1. Restraints the forum court places on itself International cases by a stay or dismissal of proceedings Interstate cases by a transfer or stay of proceedings2. Restraints the forum court places on litigant in another court 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 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 Dont 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

Restraints the forum court places on itself International proceedings Maritime Insurance Co Ltd v Geelong Harbour Trust (1908) 6 CLR 194 Injustice to defendant because 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 An abuse of process; AND Stay would not cause an injustice to the plaintiffThus 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 plaintiffs 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 courts 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 conveniensSpiliada 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 LJForum 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 In Australia, approach to tort is lex loci delicti Only one factor amongst many and is not determinative If the law of the cause is a foreign jurisdiction, this can be taken into account Legitimate jurisdictional advantage eg longer limitation period If the reason doesnt 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 approachOceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 Brennan J Geelong Harbour Trust Deane and Gaudron JJ 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 Spiliada Voth v Manildra Flour Mills Pty Ltd (1992) 171 CLR 538 Facts P was NSW company, D was Missouri accountant P took action against Missouri accountant D had given a subsidiary of P some advice about tax that was negligent Because of that negligence, a subsidiary of P suffered tax penalty which resulted in them losing certain tax rights in Australia Ps subsidiary company was a Kansas company, and D was in Missouri nothing to do with Australia 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 Application for forum non conveniens succeeded on appeal in HCA 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 courts process On its face, no different from Geelong Harbour Trust But also brought revision of courts 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 SpiliadaThe 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 forums 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 Ps 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 ZhangThe defendant would need to show thata 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. ProcedureThe 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 LJs 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 LJs 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 courts 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 incurredBUT 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 clauses1. Non-exclusive jurisdiction clause Parties agree to submit to the jurisdiction of a place but there is no further agreement precluding either party from suing elsewhere Persuasive 2. Exclusive jurisdiction clause 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 Eg disputes under this contract are to be referred only to the Supreme Court of Queensland) Even when the clause is exclusive, an Aus court will not necessarily use that as a basis for forum non conveniens Highly persuasive but not necessarily binding on the court Simply becomes one of a number of factors Brandon J in The Eleftheria [1970] 94 at 100Exclusive jurisdiction clausesThere 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 Where evidence is to be found, and effect of this on expense and convenience of the trial Whether the law of the forum is to apply (choice of law clause?) Connection of parties and degree of connection Merely seeking procedural advantage 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) 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 Contract between Victorian corporation and French corporation for construction of a huge crane on a dock on a building site Crane brought over in pieces by ship, assembled and used in Victoria Place where operator sits fell off and killed three people Part of action was breach of contract Clause in contract said in case of litigationthe only competent court was the Commercial Court of Lyon Relative convenience and expense (particularly of witnesses and evidence P commenced action in Victoria Held Hudson J held that it was for more than a balance of convenience that the proceedings be tried in Victoria than France 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 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 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 This is fine when you follow this process but it doesnt 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 clausesIt is not an apparent breach of contract for the proceedings to be pursued in the courts of the forum: Akai Pty Ltd v The Peoples 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. Interstate casesTransfers At common law 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) 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 527Gleeson 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 appropriateRestraints the forum court places on litigants in another court 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 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) In July 1995, Cigna Aus commenced proceedings against both CSRs 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 CSR companies then applied for stay of NSW proceedings on ground of forum non conveniens Refused in April 1996 Held NSW proceedings should, pending the outcome of the NJ proceedings, be stayed on the ground that they were oppressive 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 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 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 proceedingsb. 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 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 Applying for a stay in the foreign courtThe jurisdiction to grant an anti-suit injunction is one that should be exercised with caution: Socit Nationale Industrielle Aerospatiale v Lee Kui Jak (per Goff LJ). It rests on the idea of comity the forum courts 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 courts processes or when the defendant had brought proceedings in the foreign court in breach of contract. Exclusive jurisdiction clausesIf 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 Lloyds 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 Lloyds to have the Victorian proceedings stayed 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 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 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 IiNTRODUCTIONThe 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 Doesnt 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 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.Choice of law methodThe 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 applyThere 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 Five step process1. Identification of a conflict of laws Identification of the possibility that a foreign body of law might apply2. Classification of the subject matter 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 apply3. The classification of substantive or procedural law Procedural laws are lex fori Substantive laws may be foreign laws4. Identification of choice of law rule What is the Australian rule that tells you whether to accept the foreign law5. Application of the law of the cause At the end of the process work out whether the plaintiff will succeed on the matter Identification of a conflict of lawsA 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 doesnt 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 systemsIdentifying the possibly relevant legal systemsThe 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. The internal rules of the possibly relevant systemsOnce 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. A conflict of laws 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 forumGore 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 proceedingHypothetical exampleExample 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.

Classification of the subject matterThe 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 Matter was a dispute between P and three companies regarding ownership to companies incorporated in New York 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 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 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 YorkClaim (restitution) Defence (priorities)

ClassificationBreach of trustProperty

Choice of law ruleLaw of place where breach occurredLaw of place where property is situated (lex situs)

Law of cause EnglandNew York

Outcome Macmillan recoversMacmillan fails

Held P argued the court should classify the matter according to the issues P raises This argument was rejected 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 Classification is a matter of the lex foriThe classification is by reference to the forums 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 Formal validity of marriage (Argentina valid) 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 Formal validity procedure of getting married Was the person who conducted the marriage qualified Were the witnesses appropriate Essential validity ability as an individual to marry This isnt about the capacity to marry, it is about the process of being married 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 Dispute about rights to inherit property in Australia, therefore Australian law will classify 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.Classification of substantive or procedural lawIf 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 NSW statute placed a cap on damages that could be recovered Question was whether, from the territory courts 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 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 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 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 Procedure is only the rules that govern a case Anything that governs rights and duties is substantive Giving foreign jurisdiction greater effect Procedure is therefore to be read narrowlyNevertheless, uncertainties still prevail: Law of evidence likely to be procedural 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 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 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 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 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 Territorys 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, 520Per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJIn 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 delictiWe would reserve for further consideration, as the occasion arises, whether that latter proposition should be applied in cases of foreign tort.Identification of choice of law ruleOnce 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 167Before 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 wont take this into account because it is a matter of procedure. However, the law about sister-in-laws is substantive.

Application of the law of the causeThe 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 IIIntroduction

Five step process1. Identification of a conflict of laws2. Classification of the subject matter3. The classification of substantive or procedural law4. Identification of choice of law rule5. Application of the law of the cause Complications Dpeage The incidental question Renvoi Exclusion of unacceptable lawsDpeageDpeage 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. Dpeage 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 dpeage Dividing issues into different matters each which have separate choice of law rules and will take you to separate dispositive bodies of lawContract 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 questionThe 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 U born in Hungary (domicile of origin) and married W in Hungary Both Jewish and had to flee Hungary and decided to go to Israel after the war 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 Both arrived separately in Israel and became domiciled in Israel Some stage later, U travelled to Canada and meets and marries S 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 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 Was the divorce by Gett effective? Normally a question for the lex domicilii at the time of the divorce, the law of Hungary 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 According to the preliminary question, in the First Court in Canada, the Chief Justice said this was a classic case of dpeage 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 If this was the case she did not have the capacity to marry 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

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