Private International Law

Transcription

1 Private International Law (LAWS2018) *** J Beaumont, Semester The University of Sydney 1

2 Table of Contents 1. Introduction... Error! Bookmark not defined. (a) Some Concepts and Persistent Issues... Error! Bookmark not defined. (b) Case Studies... Error! Bookmark not defined. (c) A Course Roadmap; Sources of Law and Doctrine of Stare Decisis... Error! Bookmark not defined. (i) Within Australia... Error! Bookmark not defined. Rules in relation to statute: precedent and statutory interpretation... Error! Bookmark not defined. (ii) Overseas Judgements... Error! Bookmark not defined. 2. Personal Jurisdiction... 5 (a) Common Law Service... 5 (i) Territorial Jurisdiction Based on Defendant s Presence... 5 (b) Jurisdiction Based on Defendant s Submission (c) Service Elsewhere in AUS (d) Service in NZ (e) Service outside Australia (i) General (ii) Contract (iii) Tort (iv) Other Cases (f) Discretionary Non-exercise of Jurisdiction (i) Mandatory Rules (ii) Foreign Jurisdiction Clauses (iii) International Cases Clearly Inappropriate Forum (iv) Intra-Australian Cases in the interests of justice, the 2 nd court is more appropriate (v) Trans-Tasman Proceedings (g) Convention on Choice of Court Agreements (h) Anti-Suit Injunctions (i) Foreign proceedings unconscionable, oppressive or vexatious for the purposes of equity ; remedies unavailable in the forum (ii) Breach of legal or equitable right; comity; anti-anti-suit injunctions (iii) Trans-Tasman Proceedings (iv) International Proceedings General Applicable Law Topics (a) Terminology, Structure, and Approach (i) Characterisation (ii) Renvoi (iii) The incidental question (iv) Forum statutes and the conflict of laws (b) Proper Law and the Lex Fori Substance and Procedure (i) Rationale of the distinction and development in AUS (ii) Characterisation by the lex fori (iii) Limitation and prescription of actions (iv) Kinds or heads of damage/amount or quantification of damages as substantive issues (v) Other: Legal professional privilege; formal requirements Choice of Law in Tort (a) Historical Background (i) The traditional rule in Phillips v Eyre (ii) A flexible exception to the rule in Phillips v Eyre? (iii) Torts committed within the forum forum law (lex fori) applies (b) Modern Australian Law (i) Intranational torts (ii) International torts (iii) Locating the place of the tort (locus delicti) (iv) Overriding forum statutes

3 (v) Foreign compensation schemes (vi) Concurrent liability in tort and contract (vii) Renvoi (d) Maritime and Aerial Torts (i) Maritime Torts (ii) Aerial Torts (e) Equitable and Other Non-Contractual Obligations Choice of Law in Contract (a) Identification of the Applicable Law (i) Express choice of law and limitations on party autonomy (ii) Inferred Choice (iii) Promissory character of choice of law provision? (iv) Objective proper law: the system of law with which the transaction has its closest and most real connection (v) Overriding forum statutes (vi) Renvoi? (b) Capacity (c) Formation (i) Consent; Offer and Acceptance (ii) Consideration whether a necessary element of a binding contract governed by the proper law (iii) Formal validity (d) Illegality and Foreign Public Policy (i) Forum Public Policy (ii) Illegality: the respective roles of the proper law, lex fori and law of the place of performance (iii) Foreign public policy and international comity (e) Performance, Variation and Discharge Foreign Law (a) Introduction and Ascertainment of Foreign Law (i) Foreign law as fact? (ii) Presumption of similarity (iii) Role of Expert Evidence (iv) Mode of proof: who is a competent witness? (v) Alternative methods of proof (vi) Interstate and Trans-Tasman Law (vii) Filing of Notices (b) Exclusion of Foreign Law (i) Foreign penal and revenue laws (ii) Australian courts will not enforce the government interests of foreign states (iii) Forum public policy (iv) Constitutional and federal considerations (full faith and credit) Recognition + Enforcement of Foreign Judgements (a) Enforcement at Common Law (i) Jurisdiction in the international sense (ii) Final and conclusive (iii) Fixed (definite) sum of money? (iv) Defences (b) Enforcement in Equity (c) Statutory Registration of Foreign Judgments (i) Relationship between the statute and the common law (ii) Registration: procedure (iii) Effect of registration (iv) Foreign judgments to which the statute (Part 2 Reciprocal enforcement of judgments ) applies (v) Setting aside registration (vi) Stays of enforcement under s (vii) Recognition of the conclusiveness of foreign judgments (viii) Registration procedure (ix) Other (d) NZ Judgments

4 (i) Enforcement of NZ judgments exclusively by registration (ii) Setting aside registration public policy (iii) Notice of registration and effect of registration (iv) Stay of enforcement proceedings pending appeal by judgment debtor in NZ (v) Non-application of common law rules of private international law (e) Convention on Choice of Court Agreements (f) The Enforcement of Judgments within Australia (i) A simple and straight forward registration scheme (ii) Non-application of common law rules of private international law (g) International Arbitration Awards (i) Statutory Enforcement (ii) Setting Aside Public Policy

5 1. Personal Jurisdiction i) Can the Court Exercise Jurisdiction? (a) Common Law Service Historically, the primary basis of the Court's jurisdiction in an action in personam was service of originating process on a defendant within the jurisdiction The Service and Execution of Process Act 1992 (Cth) extended the area within which service on a defendant may be effected, and there are rules of court relating to substituted service and service outside the jurisdiction. Mobil Oil Australia Ltd v Victoria [2002] HCA 27; at [10] (Gleeson CJ). (i) Territorial Jurisdiction Based on Defendant s Presence 1. Presence when cause of action arises (but leaves prior to commencement of proceedings) = does not establish jurisdiction. 2. Presence when served originating process = establishes jurisdiction (Gosper v Sawyer) o Even if D has fleeting presence in the forum, + subject matter has no connection with forum: HRH Maharanee of Baroda o D who is not present in the forum at the time of issue of the originating process is not subject to the common law jurisdiction of the court unless D later enters the forum and is served there with the originating process: Laurie v Carroll 3. Presence when writ issued, but departed before service of originating process established J if and only if (Laurie v Carroll) o D left NSW knowing the originating process had been issued; or o D left NSW for the purpose of evading personal service. INDIVIDUALS Basic rule comes from Gosper v Sawyer: ordinary basis of territorial jurisdiction is personal presence of defendant within the court s territory at the relevant time/times. Case * Gosper v Sawyer (1985) 160 CLR 548 Key Extract(s) Gibbs CJ, Wilson and Dawson JJ (at 557): o [I]n an action in personam, the rules as to the legal service of the writ define the limits of the jurisdiction of the court and the question whether service can be effected out of the jurisdiction does not involve a matter of procedure but an extension of jurisdiction : see Laurie v Carroll [1958] HCA 4; (1958) 98 C.L.R. 310, at pp Mason and Deane JJ (at 564): o The general doctrine of the common law is that, in the absence of a submission to the jurisdiction by a defendant, civil jurisdiction is territorial, that is to say, related to the territory of whose system of government the particular court forms part. o Putting to one side actions involving questions of status or succession and actions in rem (where the basis of jurisdiction may be domicile or presence of property respectively), the ordinary basis of territorial jurisdiction is the personal presence of the defendant within the court's territory (see per Lord Selborne L.C., Berkley v Thompson (1884) 10 App Cas 45, at p 49). o The usual method by which a court asserts such jurisdiction is the issue (or, arguably, the issue and service) of its writ or other process directed to the defendant. Since the effective assertion of jurisdiction is confined by the limits of actual jurisdiction, a court's power to issue process in an action in personam, where the defendant does not submit to the jurisdiction and where questions of status or succession are not involved, is prima facie exercisable only against those present within the limits of its territory at whatever be the relevant time or times (see the discussion in Laurie v Carroll (1958) 98 CLR 310, at pp 324ff.): o A court cannot extend its process and so exercise sovereign power beyond its own territorial limits (Cheshire, op. cit., pp ). o Conversely, a court's power to authorize service of its writ is ordinarily a measure of its jurisdiction in an action in personam (cf. John Russell and Company Limited v Cayzer, Irvine and Company Limited [1916] 2 AC 298, at p 302). What is the relevant time? See Laurie v Carroll. Case *Laurie v Carroll (1958) 98 CLR 310 (see also Carroll v Laurie [1959] VR 275) at pp Extract(s) What is the relevant time? 5

6 I.e. what does Gosper mean when it says person must be present within the limits of territory at whatever be the relevant time or times? General Rule: General rule from Laurie v Carroll à relevant time is service of the writ or claim, i.e. if no service, there s no jurisdiction. Issues: o Exception if person knew of issue of writ and left jurisdiction with knowledge of its existence or with intention to evade service? Mortensen 2.9 Mortensen 2.9: Takes view that Laurie v Carroll allowed substituted service if person knew of issue of writ and left jurisdiction with knowledge of its existence or with intention to evade service Nygh: Construes Laurie v Carroll differently and feels the case does not stand for this. Prof Bath Commentary: Feels this is the correct view. South Australia: Takes view that if D knew of issue of writ and left jurisdiction with knowledge of its existence or with intention to evade service, then yes can stills substitute service. o o o What if the person was tricked into coming into the jurisdiction? If fraudulently tricked into coming into the jurisdiction No; invalid service, no jurisdiction. What if person temporarily within the jurisdiction? If not fraudulently tricked into coming into the jurisdiction and merely temporarily in the jurisdiction Yes; valid service, jurisdiction. I.e. if fraud, doesn t matter why person is in the jurisdiction e.g. as a foreigner, temporary presence, subject of Crown etc. What if person came into jurisdiction specially to be served? Valid: See Perrett v Robinson [1985] 1 Qd R 83 getting advantage of longer limitation period. How is Personal Service effected? Uniform Civil Procedure Rules 2005 (NSW) r Personal service required only in certain circumstances (cf SCR Part 9, rules 1 and 2; DCR Part 8, rule 3; LCR Part 7, rules 3 and 20) (1) Any document required or permitted to be served on a person in any proceedings may be personally served, but need not be personally served unless these rules so require or the court so orders. (2) Except as otherwise provided by these rules: (a) any originating process, and any order for examination or garnishee order, in proceedings in the Supreme Court, the Industrial Relations Commission (including the Commission when constituted as the Industrial Court), the Land and Environment Court, the District Court or the Dust Diseases Tribunal must be personally served, and (b) any originating process in the Local Court must be served in one of the following ways: (i) it may be personally served on the defendant, (ii) it may be left, addressed to the defendant, at the defendant's business or residential address, with a person who is apparently of or above the age of 16 years and apparently employed or residing at that address, (iii) if served by the Local Court, it may be sent by post, addressed to the defendant, to the defendant's business or residential address in an envelope marked with a return address (being the address of the Local Court but not so identified), and (c) any order for examination, garnishee order or subpoena for attendance in proceedings in the Local Court must be served in one of the following ways: (i) it may be personally served on the person to whom it is directed, 6

7 (ii) it may be left, addressed to the person to whom it is directed, at that person's business or residential address, with a person who is apparently of or above the age of 16 years and apparently employed or residing at that address, and (d) any subpoena for production in proceedings in the District Court or the Local Court must be served in one of the following ways: (i) it may be served personally on the person to whom it is directed, (ii) it may be left, addressed to the person to whom it is directed, at that person's business or residential address, with a person who is apparently of or above the age of 16 years and apparently employed or residing at that address, (iii) it may be sent by post, addressed to the person to whom it is directed, to the person's business or residential address in an envelope marked with the return address of the party at whose request the subpoena was issued. As to service by post, see section 76 of the Interpretation Act (3) If an envelope, posted as referred to in subrule (2) (b) (iii), is returned to the court by the postal authority as having not been delivered to the addressee: (a) service of the document contained in the envelope is taken not to have been effected, and (b) any judgment given or entered on the basis of that service is to be set aside, and the registrar must so advise the party by whom or on whose behalf it was posted. (4) Service of a subpoena in accordance with subrule (2) (c) (ii) or (d) (ii) or (iii) is taken to be personal service for the purposes of rule 33.5 (1). (5) Unless an earlier date is proved, a defendant who enters an appearance is taken to have been personally served with the relevant originating process on the date on which appearance was entered. (6) The provisions of this rule concerning the service of originating processes extend to the service of amended statements of claim if the defendant to be served has not filed either a notice of appearance or notice of defence. Uniform Civil Procedure Rules 2005 (NSW) r How personal service effected generally (cf SCR Part 9, rule 3; DCR Part 8, rules 3 and 14; LCR Part 7, rules 3 and 14) (1) Personal service of a document on a person is effected by leaving a copy of the document with the person or, if the person does not accept the copy, by putting the copy down in the person's presence and telling the person the nature of the document. (2) If, by violence or threat of violence, a person attempting service is prevented from approaching another person for the purpose of delivering a document to the other person, the person attempting service may deliver the document to the other person by leaving it as near as practicable to that other person. (3) Service in accordance with subrule (2) is taken to constitute personal service. How is Substituted Service Effected? Substituted means INSTEAD of personal service (i.e. same jurisdictional scope) do not confuse with service outside the jurisdiction (extension of jurisdictional scope). o i.e. substituted service can be ordered when you are unable to effect personal service. Uniform Civil Procedure Rules 2005 (NSW) r Substituted and informal service generally (cf SCR Part 9, rules 10 and 11; DCR Part 8, rules 5 and 16; LCR Part 7, rules 5 and 16) (1) If a document that is required or permitted to be served on a person in connection with any proceedings: (a) cannot practicably be served on the person, or (b) cannot practicably be served on the person in the manner provided by law, 7

8 the court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned. (2) An order under this rule may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time. (3) If steps have been taken, otherwise than under an order under this rule, for the purpose of bringing the document to the notice of the person concerned, the court may, by order, direct that the document be taken to have been served on that person on a date specified in the order. (4) Service in accordance with this rule is taken to constitute personal service. CORPORATIONS Common Law Test: Applies to foreign companies not registered under Corporations Act. Requires determining whether the foreign corporation is carrying on business in the jurisdiction. Case * National Commercial Bank v Wimborne (1979) 11 NSWLR 156 Facts NCB was corporation under Saudi Arabian law; no assets, office, or place of business in NSW Instead, arrangement with local bank where bank collected proceeds of bills of exchange from NSW importers and remitted proceeds to NCB in Saudi Arabia. Issue Whether NCB was subject to the common law jurisdiction of NSWSC in proceedings for abuse of legal process by NCB in Switzerland Principles No à not subject to NSWSC jurisdiction. o At common law, foreign person or corporation is not subject to jurisdiction of NSWSC unless he or it is present in NSW, or has voluntarily submitted or waived the right to object to the jurisdiction. o At statute, jurisdiction may arise such as where it is directly conferred or authority is given for service outside the jurisdiction of claims arising in or relating to subject matters within the jurisdiction. o As a board corporate or artificial legal entity separate from its members, the NCB can have no physical presence. Set out test for presence within jurisdiction of body corporate or artificial legal entity: o The test for presence within the jurisdiction in respect of a body corporate or artificial legal entity separate from its members is whether the foreign corporation carries on its business within the territory of New South Wales: the question is one of fact for the court to determine according to the following indicia: (a) whether it carries on business here, and this it can only do by an agent who must have authority on behalf of the corporation to make contracts with persons in NSW binding on the corporation; Cannot be a mere ministerial agent, or agent carrying on his own business Local solicitor to commence/defend proceedings is insufficient (b) whether the business is carried on at some fixed and definite place within the State. Consider: Whether the name of the foreign corporation is displayed at the agent s place of business; Whether it owns or leases the premises or pays the rent; Whether it employs staff or particular staff are allocated by the agent to its business and it pays their wages or pays office expenses; Anything which one would expect to find if a person doing business had established or maintained a place or office for doing it in a particular territory. (c) whether the business has been continued for a sufficiently substantial period of time. Held in this case: The appointment of a local bank as correspondent banker for a foreign bank was not sufficient to make the foreign bank present in the jurisdiction. It is not enough to show that the foreign corporation has an agent here if he is merely a ministerial agent; or is carrying on his own business and not that of the foreign corporation; such presence is not established by showing that the foreign corporation has appointed a local solicitor to commence or defend particular 8

9 legal proceedings in the jurisdiction. It is not essential to find but it is relevant to consider whether the name of the foreign corporation is displayed at the agent's place of business, whether it owns or leases the premises or pays the rent, whether it employs staff or particular staff are allocated by the agent to its business and it pays their wages or pays office expenses, indeed anything which one would expect to find if a person doing business established or maintained a place or office for doing it in a particular territory. Statutory Service: Applies to foreign companies registered under Corporations Act à allows local agent to accept service. Corporations Act 2001 (Cth), ss 21, 109X, 601CD, 601CT and 601CX 21 Carrying on business in Australia or a State or Territory (1) A body corporate that has a place of business in Australia, or in a State or Territory, carries on business in Australia, or in that State or Territory, as the case may be. (2) A reference to a body corporate carrying on business in Australia, or in a State or Territory, includes a reference to the body: (a) establishing or using a share transfer office or share registration office in Australia, or in the State or Territory, as the case may be; or (b) administering, managing, or otherwise dealing with, property situated in Australia, or in the State or Territory, as the case may be, as an agent, legal personal representative or trustee, whether by employees or agents or otherwise. (3) Despite subsection (2), a body corporate does not carry on business in Australia, or in a State or Territory, merely because, in Australia, or in the State or Territory, as the case may be, the body: (a) is or becomes a party to a proceeding or effects settlement of a proceeding or of a claim or dispute; or (b) holds meetings of its directors or shareholders or carries on other activities concerning its internal affairs; or (c) maintains a bank account; or (d) effects a sale through an independent contractor; or (e) solicits or procures an order that becomes a binding contract only if the order is accepted outside Australia, or the State or Territory, as the case may be; or (f) creates evidence of a debt, or creates a security interest in property, including PPSA retention of title property of the body; or (g) secures or collects any of its debts or enforces its rights in regard to any securities relating to such debts; or (h) conducts an isolated transaction that is completed within a period of 31 days, not being one of a number of similar transactions repeated from time to time; or (j) invests any of its funds or holds any property. 109X Service of documents (1) For the purposes of any law, a document may be served on a company by: (a) leaving it at, or posting it to, the company s registered office; or (b) delivering a copy of the document personally to a director of the company who resides in Australia or in an external Territory; or (c) if a liquidator of the company has been appointed leaving it at, or posting it to, the address of the liquidator s office in the most recent notice of that address lodged with ASIC; or (d) if an administrator of the company has been appointed leaving it at, or posting it to, the address of the administrator in the most recent notice of that address lodged with ASIC. (2) For the purposes of any law, a document may be served on a director or company secretary by leaving it at, or posting it to, the alternative address notified to ASIC under subsection 5H(2), 117(2), 205B(1) or (4) or 601BC(2). However, this only applies to service on the director or company secretary: (a) in their capacity as a director or company secretary; or (b) for the purposes of a proceeding in respect of conduct they engaged in as a director or company secretary. (3) Subsections (1) and (2) do not apply to a process, order or document that may be served under section 9 of the Service and Execution of Process Act (6) This section does not affect: (a) any other provision of this Act, or any provision of another law, that permits; or (b) the power of a court to authorise; a document to be served in a different way. 9

10 (7) This section applies to provisions of a law dealing with service whether it uses the expression serve or uses any other similar expression such as give or send. 601CD When a foreign company may carry on business in this jurisdiction (1) A foreign company must not carry on business in this jurisdiction unless: (a) it is registered under this Division; or (b) it has applied to be so registered and the application has not been dealt with. (2) For the purposes of this Division, a foreign company carries on business in this jurisdiction if it: (a) offers debentures in this jurisdiction; or (b) is a guarantor body for debentures offered in this jurisdiction; and Part 2L.1 applies to the debentures. 601CT Registered Office (1) A registered body must have a registered office in this jurisdiction to which all communications and notices may be addressed and that must be open: a. If the body has: (i) Lodged a notice under subsection (2); or (ii) Lodged a notice under subsection (2) and a notice or notices under subsection 94) for such hours (being not fewer than 3) between 9 am and 5 pm on each business day as are specified in that notice, or in the later or last of those notices, as the case may be; or b. Otherwise each business day from at least 10am to 12 noon and from at least 2pm to 4pm and at which a representative of the body is present at all times when the office is open. (2) A registered body may lodge written notice of the hours (being not fewer than 3) between 9 am and 5 pm on each business day during which the body's registered office is open. (3) Within 7 days after a change in the situation of its registered office, a registered body must lodge a written notice of the change and of the new address of that office. (4) A registered body that has lodged a notice under subsection (2) must, within 7 days after a change in the hours during which its registered office is open, lodge a notice, in the prescribed form, of the change. 601CX Service of documents on registered body (1) A document may be served on a registered body: (a) by leaving it at, or by sending it by post to, the registered office of the body; or (b) in the case of a registered foreign company by leaving it at, or by sending it by post to, the address of a local agent of the foreign company, being: (i) in a case to which subparagraph (ii) does not apply an address notice of which has been lodged under subsection 601CG(1); or (ii) if a notice or notices of a change or alteration in that address has or have been lodged under subsection 601CV(1) the address shown in that last-mentioned notice or the later or latest of those last-mentioned notices. (2) For the purposes of subsection (1), the situation of the registered office of a registered body: (a) in a case to which neither paragraph (b) nor paragraph (c) applies is taken to be the place notice of the address of which has been lodged under paragraph 601CB(e) or 601CE(g); or (b) if only one notice of a change in the situation of the registered office has been lodged with ASIC under subsection 601CT(3) is, on and from: (i) the day that is 7 days after the day on which the notice was lodged; or (ii) the day that is specified in the notice as the day from which the change is to take effect; whichever is later, taken to be the place the address of which is specified in the notice; or (c) if 2 or more notices of a change in the situation of the registered office have been lodged under subsection 601CT(3) is, on and from: 10

11 (i) the day that is 7 days after the day on which the later or latest of those notices was lodged; or (ii) the day that is specified in the later or latest of those notices as the day from which the change is to take effect; whichever is later, taken to be the place the address of which is specified in the relevant notice; and is so taken to be that place irrespective of whether the address of a different place is shown as the address of the registered office of the registered body in a return or other document (not being a notice under subsection 601CT(3)) lodged after the notice referred to in paragraph (a) or (b), or the later or latest of the notices referred to in paragraph (c), was lodged. (3) Without limiting the operation of subsection (1), if 2 or more directors of a registered body reside in Australia or an external Territory, a document may be served on the body by delivering a copy of the document personally to each of 2 of those directors. (3A) Without limiting the operation of subsection (1), a document may be served on a registered body that is registered as a proprietary company and has only one director by delivering a copy personally to that director. (4) Where a liquidator of a registered body has been appointed, a document may be served on the body by leaving it at, or by sending it by post to, the last address of the office of the liquidator notice of which has been lodged. (5) Nothing in this section affects the power of the Court to authorise a document to be served on a registered body in a manner not provided for by this section. (6) Subject to subsection 8(4), subsection 8(3) applies in relation to a reference in this section. Service and Execution of Process Act 1992 (Cth), ss9 and 15 S9 Service on Companies and Registered Bodies (6) If the registered body is a registered foreign company, a process, order or document may be served by leaving it at, or by sending it by post to: (a) (b) The address of a local agent of the foreign company notice of which has been lodged under the Corporations Act 2001; or If a notice or notices of a change or alteration in that address has or have been so lodged the address shown in that last mentioned notice or the later or latest of those last-mentioned notices. Uniform Civil Procedure Rules 2005 (NSW) r Personal service on corporation (cf SCR Part 9, rule 3; DCR Part 8, rule 12; LCR Part 7, rule 12) Personal service of a document on a corporation is effected: (a) by personally serving the document on a principal officer of the corporation, or (b) by serving the document on the corporation in any other manner in which service of such a document may, by law, be served on the corporation. (b) Jurisdiction Based on Defendant s Submission SUBMISSION BY AGREEMENT Obviously, someone out of the jurisdiction can explicitly submit to the jurisdiction of the local court. Uniform Civil Procedure Rules 2005 (NSW) r Service in accordance with agreement between parties (cf SCR Part 9, rule 9; DCR Part 8, rule 15; LCR Part 7, rule 15) (1) In any proceedings, any document (including originating process) may be served by one party on another (whether in New South Wales or elsewhere) in accordance with any agreement, acknowledgment or undertaking by which the party to be served is bound. (1A) In relation to the service of an originating process in proceedings on a claim for possession of land, the agreement, acknowledgment or undertaking referred to in subrule (1) must be made after the originating process is filed but before it is 11

12 served. (2) Service in accordance with subrule (1) is taken for all purposes (including for the purposes of any rule requiring personal service) to constitute sufficient service. Uniform Civil Procedure Rules 2005 (NSW) r Acceptance of service by solicitor (SCR Part 9, rule 7; DCR Part 8, rules 6 and 7; LCR Part 7, rules 6 and 7) If a solicitor notes on a copy of: (a) any originating process, or (b) any other document required or permitted to be served in any proceedings, but not required to be personally served, that he or she accepts service of the document on behalf of any person, the document is taken to have been duly served on that person on the date on which the note is made or on such earlier date of service as may be proved. Uniform Civil Procedure Rules 2005 (NSW) r 11.4, Schedule 6 Para K 11.4 Cases for service of originating process (1) Originating process may be served outside of Australia without leave in the circumstances referred to in Schedule 6. (2) This rule extends to originating process to be served outside Australia in accordance with the Hague Convention. Schedule 6 Service outside of Australia without leave (k) when the person to be served has submitted to the jurisdiction of the court A VOLUNTARY SUBMISSION? Test: Robert Goff LJ in The Messiniaki Tolmi o A person voluntarily submits to the jurisdiction of the court if he voluntarily recognizes, or has voluntarily recognised, that the Court has jurisdiction to hear and determine the claim which is the subject matter of the relevant proceedings. o He is precluded thereafter from objecting to the Court exercising its jurisdiction in respect of such claim. Forms amounting to submission Active Acceptance: o 1. Filing of an unconditional appearance in the proceedings: Paramasivan v Sabanathan o 2. Express agreement to submit to the court s jurisdiction: Dunbee v Gilman & Co o 3. Instruction lawyers to accept service D who actively challenges jurisdiction of the court must act consistently with a protest against jurisdiction, because a tacit concession of the court s right to hear and determine the merits of the case will be taken as submission to jurisdiction. o Test: whether D by their conduct waived right to challenge jurisdiction. For example: 1. D counterclaimed on a ground related to P s claim: Marlborough Harbour Board 2. Arguing the merits of the case without filing an appearance (e.g. a defence): The Meesinaki; Vertzyas v Singapore Airlines 3. Consent to interlocutory orders: Esal (Commodities) Ltd 4. Application for a stay on grounds of forum non conveniens (as this proceeds on assumption that the court has jurisdiction): Williams and Glyn s Bank plc Case Howard v National Bank of New Zealand Ltd (2002) 121 FCR 366 Facts D instructed solicitor in NZ to accept service of originating process from Australia. Then argued this was not actually a submission to jurisdiction. Held At 15: In my opinion, service on a respondent out of the Commonwealth of this Court's originating process in any kind of proceeding effected under an agreement within O 7 r 14 [of the Federal Court Rules] gives this Court jurisdiction in that proceeding over the respondent for the reason stated in Laurie v Carroll at 323: O 7 r 14 creates a means whereby the Court's process can be lawfully served on a foreign respondent. Case * Vertzyas v Singapore Airlines (2000) 50 NSWLR 1 Facts P purchased return ticket to Athens on Singapore airlines. Suffered bodily injury on flight from Athens to Sydney. 12

13 Under Article 28 of Warsaw Convention, action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the Court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an established by which the contract has been made or before the Court having jurisdiction at the place of destination. Under the Convention, NSW did not have jurisdiction. Likely Greece as ultimate destination had jurisdiction. However, writ served on Singapore Airlines in NSW in any case. Singapore airlines responded by: 1. Arguing that NSW did not have jurisdiction under Warsaw Convention 2. Filing a defence 3. Asking P to present herself for medical examinations. Issue Had Singapore Airlines voluntarily submitted to NSW jurisdiction? Held Yes. o o In order for a party to be treated as having submitted to the jurisdiction of the court so as to waive an objection to such jurisdiction he or she has to do acts which are inconsistent with his maintaining such objection. Here, D/solicitors chose to fight both jurisdictional issues and the merits of the case simultaneously manifesting an unequivocal intention to contest the case on its merits. Key Extracts it seems to me that the appropriate principle is that in order for a party to be treated as having submitted to the jurisdiction of the court so as to waive an objection to such jurisdiction he or she has to do acts in the court proceedings which are inconsistent with his maintaining such objection. Thus not every act which seeks to raise the merits of the other party's case will be regarded as inconsistent but only those which manifest an unequivocal intention to contest those merits. Commentary Allsop P approved this reasoning in Gulf Air Co v Fattouh: clean and powerful SUBMISSION BY APPEARANCE Conduct/actions inconsistent with a protest against jurisdiction Mortensen 2.16; Nygh 3.115: o Taking positive steps in the action (other than a mere failure to object) E.g. allowing substantive claim to be held; making submissions on the merits; consenting to interlocutory orders, etc. o Foreign party who submits to jurisdiction for one claim, does not consent to jurisdiction for all purposes; o Foreign plaintiff who brings action does not submit to jurisdiction for all purposes, but does consent to jurisdiction of court in related cross-claims. Cross claims and amended claims: Case National Commercial Bank v Wimborne (1979) 11 NSWLR 156 Facts See above. Held At 174: a foreign plaintiff, not otherwise subject to the jurisdiction of the Court, who brings an action in the Court submits himself by necessary implication to every matter of counter-claim that would operate as a defence to his action or that would as a set-off or cross-claim arising out of the same subject matter reduce or extinguish the plaintiffs' claim; and also, at least if he is not a foreign Sovereign, to a counter-claim founded on or directly arising out of the same subject matter as the plaintiffs' claim that would require to be tried in order to do justice between the parties in relation to that subject matter even if it might result in a judgment against the plaintiff on the counterclaim. Case Marlborough Harbour Board v Charter Travel Co (1989) 18 NSWLR 223 Facts Russian cruise ship sank in NZ territorial waters. Ps were residents of NSW à claimed in tort and contract against Baltic Shipping (operator) and Charter Travel (owner s agent) Ship owner contended the accident occurred while ship was navigated by compulsory pilot under NZ law. o Compulsory pilot was employee of Marlborough Harbour Board (NZ Statutory Authority) o Ship owner made third party claim against MHB, seeking contribution or indemnity. 13

14 o MHB filed an appearance to the third party claim. Ship owner then wanted to amend the third party claim to include a claim for the loss of the ship. MHB said they had only agreed to submit to third party claim. Issue Did the voluntary submission extend to a claim created by an amendment seeking to recover damages for loss of the ship itself? Held Yes o A foreign defendant filing an appearance in proceedings in NSW constitutes a voluntary submission o If P submits claim in NSW, P voluntarily submits to any cross claim that D might bring against P, where cross claim arises from same subject matter o If D files an unconditional appearance, D also voluntarily submits to P s amendment of their original claim, which is founded on or directly arises out of the same subject matter as the original claim. o Here, the amended claim arose out of the same subject matter as the original claim (negligence of MHB). In National Commercial Bank v Wimborne, Holland J (at 174) said that a foreign plaintiff submitted himself by necessary implication to a counterclaim founded on or directly arising out of the same subject matter as the plaintiffs' claim that would require to be tried in order to do justice between the parties in relation to that subject matter even if it might result in a judgment against the plaintiff on the counter-claim. As it seems to me, that is the position here. The essential subject-matter of the defendants' original counter-claim was the sinking of the ship and the responsibility of Marlborough and/or Captain Jamison for it. Although the damages which they claimed did not extend to the ship itself, they were not minimal. The Court has been told that they might amount to some millions of dollars. The addition of the ship and other items to the heads of damage enlarges the scope of the inquiry as to damage and, I will assume, involves a different cause of action, but it does not involve a claim which is not founded on the same subjectmatter. o i.e. a foreign plaintiff, by bringing an action, does not submit to every cross-claim. However, they do submit to a cross- or counterclaim arising out of the same subject matter, whether or not based on the same cause of action. In this case essential subject matter was the sinking of the ship. Therefore there was jurisdiction. Case * Garsec v His Majesty the Sultan of Brunei (2008) NSWCA 211. Facts Claim made; Ds entered a motion of appearance. The original claim was then withdrawn and replaced with a new claim. The Ds took no steps protect their position (i.e. by arguing no jurisdiction). Ds then applied to withdraw appearance. Held Application was refused. It was too late. OBJECTION TO JURISDICTION Before SC Rules à if D merely objected to exercise of jurisdiction, as opposed to existence of jurisdiction, and was unsuccessful, the objection was regarded as a voluntary submission. Under SC rules à objection to exercise or existence of jurisdiction cannot be taken as a voluntary submission: r12.11(4) Uniform Civil Procedure Rules 2005 (NSW) r Setting aside originating process etc. (cf SCR Part 11, rule 8) (1) In any proceedings, the court may make any of the following orders on the application of a defendant: (a) an order setting aside the originating process, (b) an order setting aside the service of the originating process on the defendant, (c) an order declaring that the originating process has not been duly served on the defendant, (d) an order discharging: (i) any order giving leave to serve the originating process outside New South Wales, or (ii) any order confirming service of the originating process outside New South Wales, (e) an order discharging any order extending the validity for service of the originating process, 14

15 (f) an order protecting or releasing: (i) property seized, or threatened with seizure, in the proceedings, or (ii) property subject to an order restraining its disposal or in relation to which such an order is sought, (g) an order declaring that the court has no jurisdiction over the defendant in respect of the subject-matter of the proceedings, (h) an order declining to exercise jurisdiction in the proceedings, (i) an order granting such other relief as the court thinks appropriate. (2) Such an order may not be made unless notice of motion to apply for the order is filed by the defendant within the time limited for the defendant to enter an appearance in the proceedings. (3) Notice of motion under subrule (2): (a) may be filed without entering an appearance, and (b) must bear a note stating the applicant's address for service. (4) The making of an application for an order under subrule (1) does not constitute submission to the jurisdiction of the court. (c) Service within Australia (between states + territories) Mortensen: simple regime effectively extends the personal jurisdiction of all state and territory courts to the whole of Australia and its external territories. o Principle can be asserted with confidence in line with HCA and FCA decisions. Do you need a requirement of leave to serve process? Need to go to anyone to get permission? o No not a requirement to serve; don t need a territorial connection with the parties or subject matter. Does this have the effect of extending the jurisdiction of the courts? o Yes extends state and territory court jurisdictions to wherever may be in Australia. o Don t have to worry about service anywhere in Australia. Service and Execution of Process Act 1992 (Cth), s 5 5 Territories regarded as States (1) For the purposes of this Act, each Territory (other than a Territory that, under subsection 7(2), is taken to be part of a State or another Territory) is to be regarded as a State. (2) For the purposes of the application of this Act in relation to a Territory (other than the Australian Capital Territory), the reference to the Governor of a State in paragraph (a) of the definition of tribunal in subsection 3(1) is a reference to the Administrator of the Territory. Service and Execution of Process Act 1992 (Cth), s Effect of service Subject to this Act, service of a process under this Act: (a) has the same effect; and (b) may give rise to the same proceedings; as if the process had been served in the place of issue. Service and Execution of Process Act 1992 (Cth), s 15 **** 15 Initiating process may be served in any part of Australia (1) An initiating process issued in a State may be served in another State [including territories]. issue. (2) Service on an individual must be effected in the same way as service of such an initiating process in the place of (3) Service on a company or a registered body must be effected in accordance with section 9. Service and Execution of Process Act 1992 (Cth), s Appearance to state address for service (1) An appearance entered after service of the initiating process must state an address within Australia as an address for service. (2) The appearance is effective only if it contains an address for service. 15

16 (3) The court of issue must set aside the appearance if, on application by the party by whom or on whose behalf the process was served, the court is satisfied that the address for service contained in the appearance is false or misleading. (4) Subsection (3) does not limit the court s power to set aside an appearance. (5) For the purposes of this Act, if the appearance would not have been required to contain an address for service had the initiating process been served in the same State as the State of the court of issue: (a) the appearance is taken to contain an address for service if it states an address of the person entering the appearance; and (b) that address is taken to be the address for service. Case McEntee v Connor (1994) 4 Tas R 18 Facts P in Tas and D in WA. Relationship took the pair to Japan, where relationship fails in spectacular manner. P brought D with action in tort for assault allegedly committed in Japan. D tried to get case transferred to WA. Key Extracts With respect to causes of action that arise wholly within Australia, it seems to me that in a practical sense, the cross-vesting legislation has ousted the operation of the common law. In such cases it is difficult to conceive of a situation where an Australian forum will be clearly inappropriate, and the choice of that forum will be governed by the principles governing the exercise of the statutory discretion conferred by the crossvesting legislation. Under the legislation, transfer to another Supreme Court will depend upon it being in the interests of justice to transfer. Commentary In a practical sense, would be very difficult to apply for transfer of case. Need to show it would serve interests of justice. (d) Service in NZ Intergovernmental agreement between Australia and NZ that came into effect on 11 October 2013 Legislation treats NZ as if it was an Australian state or territory. NZ legislation reciprocates to Australia. Trans-Tasman Proceedings Act 2010 (Cth), s 9(1) and s10 9 Service of initiating documents in New Zealand (1) An initiating document issued by an Australian court or tribunal that relates to the proceeding may be served in New Zealand under this Part. (2) However, the document must be served in New Zealand in the same way that the document is required or permitted, under the procedural rules of the Australian court or tribunal, to be served in the place of issue. Note: For service of the initiating document in New Zealand under this Part, it is not necessary for the Australian court or tribunal: (a) to give leave for the service; or (b) to be satisfied that there is a connection between the proceeding and Australia. 10 Effect of service under section 9 Service of an initiating document in New Zealand under section 9: (a) has the same effect; and (b) gives rise to the same proceeding; as if the initiating document had been served in the place of issue. Note: For initiating documents issued by an Australian court, the defendant may apply to the Australian court to stay the proceeding on the grounds that a New Zealand court is the more appropriate court: see Part 3. In some cases, the defendant and the defendant s lawyer may appear remotely in that stay proceeding without the court s leave: see subsection 18(4). 17 Application to stay Australian proceeding on forum grounds (1) A defendant in a civil proceeding in an Australian court may apply to the court for an order staying the proceeding on the grounds that a New Zealand court is the more appropriate court to determine the matters in dispute. (2) The application must be made within: a. 30 working days of the Australian court after the day on which the defendant was served with the initiating document for the proceeding; or b. if, before or after the end of that period, the plaintiff or defendant applies to the Australian court for a shorter or longer period any shorter or longer period the Australian court considers appropriate. 16

17 (e) Service outside Australia + NZ (i) General Basic rule: personal jurisdiction requires presence in the jurisdiction of the court. Exceptions: Rules of court/legislation give courts extra-territorial jurisdiction in relation to actions connected with the jurisdiction (used to be called long-arm jurisdiction ). o In AUS, courts only have jurisdiction through a combination of r11.2 and Schedule 6 critically important and highly examinable. POWER TO SERVE OUTSIDE AUS Applies to Supreme Court Uniform Civil Procedure Rules 2005 (NSW) r Application of Part (1) This Part applies to proceedings in the Supreme Court. (2) For the purposes of this Part, a reference to Australia includes a reference to the external Territories. Can serve outside AUS in the circumstances referred to in Schedule 6 Uniform Civil Procedure Rules 2005 (NSW) r Cases for service of originating process (1) Originating process may be served outside Australia in the circumstances referred to in Schedule 6. (2) This rule extends to originating process to be served outside Australia in accordance with the Hague Convention. Key Schedule 6 circumstances: 1. (a) cause of action arises in NSW 2. (b) proceedings founded on contract made in NSW or breached in NSW 3. (d) proceedings founded on tort committed in NSW 4. (e) proceedings for recovery of damages in respect of damage suffered in NSW Uniform Civil Procedure Rules 2005 (NSW), Schedule 6 Schedule 6 Proceedings in respect of which originating process may be served outside Australia Originating process may be served outside Australia in relation to the following circumstances: a) if the proceedings are founded on a cause of action arising in New South Wales, b) if the proceedings are founded on a breach in New South Wales of a contract (wherever made), whether or not the breach is preceded or accompanied by a breach (wherever occurring) that renders impossible the performance of any part of the contract which ought to be performed in New South Wales, c) if the subject-matter of the proceedings is a contract and the contract: i. is made in New South Wales, or ii. is made on behalf of the person to be served by or through an agent carrying on business or residing in New South Wales, or iii. is governed by the law of New South Wales, or iv. is one a breach of which was committed in New South Wales, d) if the proceedings are founded on a tort committed in New South Wales, e) if the proceedings, wholly or partly, are founded on, or are for the recovery of damages in respect of, damage suffered in New South Wales caused by a tortious act or omission wherever occurring, f) if the proceedings are for contribution or indemnity in respect of a liability enforceable by proceedings in the court, g) if the person to be served is domiciled or ordinarily resident in New South Wales, h) if the proceedings are proceedings in respect of which the person to be served has submitted or agreed to submit to the jurisdiction of the court, 17