[1] INTRODUCTION SOME CONCEPTS & PERSISTENT ISSUES

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1 [1] INTRODUCTION SOME CONCEPTS & PERSISTENT ISSUES Private international law: The body of principles, rules and, at times, policies and approaches that indicate how a foreign element in a legal problem/dispute should be dealt with [Mortensen] Rules of domestic legal systems that assist courts in those systems resolve disputes involving ks with foreign legal systems (rules governing how a NSW court deals with a foreign element in torts and ks cases) Foreign element: Foreign party Accident in a foreign nation Property located overseas (ks) Persons Place of birth/citizenship (e.g. Roman law applied to Roman citizens) Current location/residence/place of business Subject matter Place of occurrence of tort (place of wrong) Law governing k (place of contracting, or k selects a foreign forum/foreign law to apply) Foreign litigation (subject matter litigated in French court simultaneously) Foreign judgment (enforcing a judgment of a Singaporean court) Foreign elements can be important in the course of litigation: PIL relates to other subjects (especially civil procedure) Originating process issued Service Appearances Interlocutory proceedings o e.g. Application for a stay (forum non conveniens) Pleadings Trial Judgment o e.g. Application for an anti-suit injunction Enforcement Strategy in litigation: PIL can present a strategic choice about where to bring claim/which law applies, which will determine the outcome of the case. For example: Only 1 jurisdiction will hear the case o Statute of limitations might have expired in 1 jurisdiction, but not the other o No cause of action in 1 jurisdiction

2 1 jurisdiction gives better remedies (does not cap damages) than other jurisdictions o US exemplary damages vs. damages capped D might have assets in a particular jurisdiction (e.g. NSW) o P might want to bring claim in NSW, or o In another jurisdiction whose judgements are enforceable in NSW 3 issues that frame the unit: Jurisdiction Does a court have the authority to decide a matter with a foreign element + should it exercise that authority? If a court has the authority to decide a matter, it can choose to not decide the matter (discretionary non-exercise of jurisdiction) Clearly inappropriate forum (forum non conveniens) Choice of law principle Recognition + enforcement of foreign judgments Which substantive law will court apply to decide matter with foreign element? The law of the forum/place vs. another law area (done in rare cases) (NSW court can apply law of other State/Territory/foreign nation) Will a court in 1 legal system give effect to a judgment given by a court in another legal system? How to enforce foreign judgments in Australia (Rather than how to enforce Australian judgments overseas) Private international law : Sometimes referred to as conflict of laws Different to public international law PIL is not truly international o Can involve issues between parties of different Australian States/Territories (parties can be natural person/company/state/territory) o Source is domestic, private law (not international law) Foreign has a BROAD meaning in PIL: McKain v R W Miller To describe the States as separate countries in private international law may sound anachronistic. Yet it is of the nature of the federation created by the Constitution that the States be distinct law areas whose laws may govern any subject matter subject to constitutional restrictions and qualifications. The laws of the States, though recognized throughout Australia, are therefore capable of creating disparities in the legal consequences attached in the respective States to the same set of facts unless a valid law of the Commonwealth overrides the relevant State laws and prescribes a uniform legal

3 consequence. That may or may not be thought to be desirable, but it is the hallmark of a federation as distinct from a union Not truly international, as conflicts may arise between different States/Territories Australian States/Territories can be treated like different nations, for purposes of PIL o States/Territories are still members of a Federation o But, it does mean that the choice of law issue can arise within Australia Law areas of Australia: McKain Law area = a piece of geography with its own legal system Each state of Australia is its own law area o Can be foreign to one another (SA is foreign to NSW) o NSW law (laws made by NSW Parliament govern the geography in NSW) Federal law is another law area o Created by Cth Parliament, governs the entire continent Country / area for purpose of resolving conflicts between legal systems: States of Australia Territories of Australia (3, including Norfolk Island) [McKain] Cth of Australia [Bills of Exchange Act, Corporations Act etc.] Farah v Say-Dee There is only 1 CL in Australia, thus no conflicts of law (within Federation) through CL But, legislation may vary Thus, choice of law issues can arise within Australia (conflicts of law through legislation) Purposes of PIL (not examinable): Consistency Like cases with a foreign element are treated alike Particular justice What is fair in this case? Comity What should the court do to treat foreign law areas with respect? WADA Essendon case PIL Does the Court of Arbitration for Sport ( CAS ) have jurisdiction to issues determine this dispute (which is a very Australian matter)? What law does CAS apply in resolving the dispute which was arbitrated? Australian law/its own rules/something else (choice of law issue)? Will an Australian court enforce the CAS award? PIL purposes Consistency: All sports should receive equal treatment under World Anti-Doping Code Particular justice: Is it fair to apply WADC as proper law, which entails strict liability? Would it be fair if players could escape suspension, if WADC did not apply?

4 Comity: ASADA and Australia recognise the importance of the WADC The Code is in use by most countries following the unanimous adoption of the International Convention against Doping in Sport by the UNESCO General Conference in 2005 The bigger picture: Globalisation makes PIL necessary (as relationships cross borders, law must as well) The availability (and quality) of cross-border dispute settlement can reduce the risk of cross-border business, and so encourage it Moves to harmonise substantive law are relevant (means choice of law and forum shopping is less of an issue): UNIDROIT, UNCITRAL Another approach: harmonise rules of PIL PIL is a big deal in other parts of the world, and increasingly, in Australia as well CASE STUDIES Forum A place in which a dispute may be heard Precise meaning of forum depends on the context (a law area (NSW)/a court of a law area (NSWSC)) Lex fori Law of the forum/place where proceedings are brought (e.g. NSW court applies NSW law) Forum non conveniens An inconvenient forum (clearly inappropriate forum) Lex cause Lex domicilii Lex loci contractus Lex loci delicti Law situs Proper law of the x Law which (according to PIL rule of the forum) applies to the particular cause of action (law applicable to settlement of the case) Law of a person s domicile Law of the place where the k was concluded Law of the place where the wrong (tort/crime) was committed Law of the place where the relevant properly is located System of law governing the x [Oceanic Sun] Oceanic Sun Line Special Shipping v Fay Facts Parties litigating about where to litigate In 1983, F (Australian) was injured during a trap shooting on a Greek cruise ship during a cruise of the Aegean Sea F sued Greek ship owner + operator in NSWSC F bought in NSW an exchange order from NSW travel agent (motherin-law), which he exchanged for a ticket when he went to Greece

5 Exchange order mentioned ship, sailing date, cabin number, fare etc. Terms of k were printed on the ticket, which the agent collected in Greece before the cruise, and she held onto tickets until ready to board cruise There were terms that were not on the exchange order, but were on the ticket later on (did the terms on the ticket later on form part of the k?) cl 12 limited liability (including for damage to $5000) cl 13 specified exclusive jurisdiction of Greek courts Injury occurred in Greek waters, on Greek boat, staffed by Greek citizens O wanted to stay on proceedings in NSWSC, pointing to EJC instead Issue Preliminary question (Did NSW court have jurisdiction to hear case or should it dismiss/stay proceedings in favour of Greek courts?) Even if NSW court did have jurisdiction, would the court decline to exercise its jurisdiction and stay proceedings in favour of Greek courts? Subsidiary questions Did the exclusive jurisdiction cl on the ticket k apply? (If so, then this would have meant that the reservation/exemptions would apply) Whose law applied to determine if the exclusion cl formed part of the k? Decision (3:2) [1] Lex fori (law of Australia) applied to determine the preliminary question of incorporation (NSW law determined whether/not cl 13 was part of the k) Rather than the putative law of k (Greek law) [2] k (of carriage) was concluded/made in NSW (not later on in Greece) (Law of Australia governs the issue of the incorporation of terms) But, the proper law of the k (law that governs basically everything else) is the law of Greece [3] Conditions printed on the ticket were not part of the k [4] Court should decline to exercise jurisdiction if Australia is a clearly inappropriate forum [5] Majority decided not to follow Spiliada v Cansulex (UK) Whether/not an Australian court is appropriate Rejected UK s more appropriate forum test UK approach to inappropriate forum is bad, apply other approach in Aus (Dissent: Greek courts were more appropriate) Principle Courts can decline to exercise its jurisdiction for more than 1 reason 1. Clearly inappropriate forum 2. Jurisdiction cl (cl in k which states that disputes must be litigated in a court in another nation)

6 Venter v Ilona MY Facts Single judge in NSWSC Accident on 74 metre yacht, probably off coast of Thailand Very international flavour V (US) was chief stewardess of The Ilona V s husband (South African) was chief engineer, crushed on by helipad V witnessed the accident and sued for mental injury/compensation to Relatives Act (NSW) (sued under NSW law) The Ilona was registered in Australia, but was owned by o 2 NSW companies (including Ilona), and o 1 Jersey company V and Ilona (ship company) settled after argument re where accident occurred This was important, as it would determine the applicable law o If on high seas, then use law of flag state (Australian law) 3 year limitation period o But, if in Thailand, apply Thai law Limitation period had expired Dispute continued with I and MDE (German company) MDE manufactured and installed the helipad MDE sought permanent stay on proceedings Pointed to the k with I, which required any claim against MDE to be made in Bochum, Germany (jurisdiction cl) But, this was contained in terms and conditions that were referred to, but not attached to, the quotation (which I argued was the k) Issue Decision Do the terms (including the jurisdiction cl) form part of the k [Oceanic Sun]? (Whether the terms of condition of trading were part of the k was to be determined by the forum) [Oceanic Sun] The issue of which law governs incorporation was determined by the law of the forum (Australian law, not foreign law) This mattered, because NSW law à the terms did not need to be physically attached to the k to bind the parties (terms part of k) German law à German Professor explained that the terms probably did need to be attached to the k to bind the parties (terms not part of k) Conflicts of laws (law of one place is in conflict with the law that could potentially otherwise apply) I s claim was stayed But, case might have been different if V had not settled (V s involvement might have been a strong reason )

7 Principle Court can have jurisdiction, but decline to exercise it (stay the proceedings) An agreement (between private individuals) that x court has exclusive jurisdiction does not deprive other courts (e.g. NSWSC) of their jurisdiction Just because an Australia ship and a German company agree that everything will happen in Germany, Does not mean the NSWSC lacks jurisdiction (it still has power), But it may respect decision of parties and decline to exercise power (stay) But those other courts will hold parties to their bargain (foreign jurisdiction cl in k) and stay proceedings, unless they have a strong reason not to do so A court will also stay proceedings if it is a clearly inappropriate forum A forum considers foreign factors to determine if clearly inappropriate What law governed issue of whether terms were incorporated (choice of law)? (After choice of law issue, determine applicable law/proper law of k) The applicable law is relevant to whether proceedings will be stayed (If Chinese law applied to an Australian k dispute, that is a big reason for an Australian court to stay those proceedings, on the basis that it is a CIF) SOURCES OF LAW & DOCTRINE OF STARE DECISIS Sources of Australia PIL: Cases (judicial decisions) Acts (e.g. Foreign Judgments Act (Cth)) Subsidiary legislation (e.g. Rules) Cth Constitution International conventions (which are then implemented by legislation) Scholarly writings (not really)? Stare decisis (precedent) and PIL: CL is the main source of PIL, though Acts are also important Issues within Australia are often resolved by Act (e.g. SEPA, Cross-Vesting Acts) Farah Constructions v Say-Dee Issue If no HCA decision, to what extent are NSW courts bound by decisions of interstate/foreign courts? Principle Superior Courts of Australia should not depart from the decisions of other intermediate appellate courts (Courts of Appeal), Unless convinced those decisions are plainly wrong HCA has definitively established 1 CL for whole of Australia This means law across Aus is consistent unless Acts differ, So, choice of law is less important within Australia

8 UK judgments: Cook v Cook The precedents of other legal systems are not binding, and Are useful only to the degree of the persuasiveness of their reasoning Other foreign judgments: Union Shipping NZ v Morgan Primary judge followed 19 th Century decision and much criticised McKinnin (Scotland), rather than 3 USSC decisions (which D argued were highly persuasive) Arguably Cook v Cook must be understood as not glossing over the differences between passing dicta, considered dicta, and rationes decidendi; nor the difference between statements proceeding from highly experienced lawyers of good reputation in ultimate appellate courts and statements proceeding from other persons SUMMARY PIL is about cases with a foreign element Key issues: jurisdiction, choice of law, foreign judgments Foreign can include other Aus States/Territories PIL objectives: consistency, particular justice, comity PIL is part of Aus domestic law: CL and Statute There is 1 CL of Australia (Aus law areas will only present choice of law issues in Australian inter-state litigation if Statutes differ) [Farah]

9 [2] PERSONAL JURISDICTION Jurisdiction A generic term that is used in a variety of senses [PT Garuda] 1. Geography/law area (geographic area over which a court presides) 2. Authority to decide [Kirk] Competence Almost a synonym for jurisdiction; Personal + subject matter jurisdiction in respect of a matter Personal jurisdiction Court s authority over a particular person in relation to a particular type of claim (claim in personam e.g. k, tort, equitable remedies) Amenable D is open/susceptible to the court s command Courts authority to decide in civil litigation: 1 Originating A doc which is the 1 st step in litigation process (e.g. How proceedings are commenced in court writ) issued e.g. Claim for damages for k (writ of summons) The issue of the writ = a command of the court (person named on the writ must show up) 2 Service After the writ has been issued, must give it to the person who is named on the writ 3 Appearances After being served, D goes to court, acknowledges that he has been served 4 Interlocutory proceedings 5 Pleadings 6 Trial 7 Judgment 8 Enforcement A hearing before determination of matter, but after matter has been commenced (Litigation about where to litigate) Important for jurisdiction Potential for fight over jurisdiction Jurisdiction issues in PIL: Does the court have authority to decide this case with a foreign element? Put another way: does the court have the competence (jurisdiction) to hear and determine the cross-border dispute in question? Even if the court does have authority to decide the case, will it exercise that authority? Courts can decline to exercise their jurisdiction Threshold points on jurisdiction: PT Garuda Indonesia v ACCC No Australian court is of unlimited jurisdiction Courts must decide matters according to the law (State Supreme Courts and Federal Courts are subject to the Constitution) Courts can (not will) hear matters it they have both personal jurisdiction (jurisdiction in personam) + subject matter jurisdiction

10 PERSONAL jurisdiction Subject matter jurisdiction Amenability of a court to make orders binding a D Includes personal jurisdiction at CL, personal jurisdiction in interstate cases, personal jurisdiction in international cases Authority to decide actions of a particular subject matter (e.g. Federal jurisdiction matters that have a federal subject matter) For State courts, there are few limitations on subject matter [Laristan] In cases with a foreign element, court can lack subject matter jurisdiction in cases re foreign immovables, foreign state immunity The focus of personal jurisdiction: The authority that an Australian court (e.g. NSWSC) has over a person in a case with a foreign element o Limited to actions in personam o (e.g. actions in k, tort, equitable remedies (inunction/specific performance)) If the court lacks personal jurisdiction, the matter will not proceed o Application to set aside the originating process [UCPR r 12.11] o Application to set aside service of the originating process [UCPR r 12.11] TERRITORIAL JURISDICTION BASED ON D s PRESENCE INDIVIDUALS Jurisdiction is based on geography Gosper v Sawyer The general doctrine of the CL is that, in the absence of a submission (to the jurisdiction by a D), civil jurisdiction is territorial The ordinary basis of territorial jurisdiction is the personal presence of the D within the court s territory The usual method by which a court asserts such jurisdiction is the issue (or, arguably, the issue and service) of its writ/other process directed to the D Gosper v Sawyer; Laurie v Carroll At CL, personal jurisdiction requires Presence (if no submission), or Submission (if no presence) If no presence/submission, jurisdiction can exist under Statute: John Pfeiffer v Rogerson A court has personal jurisdiction in a civil action/jurisdiction either because P has served the originating process on D while within its territorial jurisdiction, or D has submitted, or Because applicable long arm provisions (statutory provision authorising service outside the jurisdiction) have been invoked

11 Presence: John Russell v Cayzer D must be amenable to the court s originating process (/susceptible to being served) (D must be amendable to the writ/susceptible to being given the writ) D will be amendable to that, if D is present within the geographical jurisdiction (NSW) at time of service, then at CL, court (that issued the process) has personal jurisdiction over D Presence turns on geography: If D is in NSW at the time of service à NSWSC has jurisdiction (If D is outside NSW at the time of service à NSWSC does not have jurisdiction) If D is within Australia at the time of service à FCA/HCA has jurisdiction External territories Territories (Law Reform) Act 1992 (Cth); Christmas Island Act 1958 (Cth) (Christmas Island is in WA) Presence issues: When does the D need to be present within the jurisdiction (timing)? Present at some relevant time? Is presence at the time of issue of the originating process sufficient? How long does the D need to be present (duration)? Is fleeting presence sufficient? For what purposes does the D need to be present? Enough that D is there, or Must D be there to get served? Laurie v Carroll Facts L (Australian born, London based) was a talent agent (foreign element) C (Australian based) wanted L to import a dancer to Australia Different company (J) became involved Initially, 3 parties worked together, but relationship broke down C did not respond to contact, so L worked with J (excluded C) L came to Australia for the shows (was present in the jurisdiction here) L met with C to discuss re-arrangement (but nothing came of this) C commenced proceedings (writ issued) against L in VICSC (forum) The day before proceedings were commenced, L went to NSW (not in the jurisdiction at the time the writ was issued/proceedings commenced) Writ was not served C then obtained an order for substituted service The day before the order was made, L had left Australia L, through lawyers in Australia, appealed to HCA to have the order for substituted service set aside Issue Did VICSC have authority over L, even though L not served properly? No

12 Decision Principle L won (order set aside) Time = D s presence at the TIME of SERVICE (not the time of issue of the writ) When a writ is issued, the court is making a command to D, But it is an inchoate command (not perfected until service) Amenability to command of writ depends on presence (at time of service) Service of writ, not issue of writ, perfects exercise of jurisdiction Court will NOT have jurisdiction if writ was issued while D in jurisdiction, But D leaves before D can be served [Joye] Temporary/fleeting presence is fine if service happens in the jurisdiction Exception If D is present because of fraud/coercion/a trick Razelos Does not matter if D comes and subsequently leaves, as long as D was served at the key time/within jurisdiction Joye v Sheahan Facts 1 November 1994 S applied to FCA for order that J attend examination re C s company affairs 25 November Court issued summons (OP) directing J to attend for examination J still in Australia on this date 9 December S s solicitors faxed J s solicitors, informing them that the summons had been issued and asking whether they had instructions to accept service of summons on behalf of J Also posted and received on 13 December 13 December J departed jurisdiction (before he could be personally served) 16 December J s lawyers send letter to S s lawyers saying they had no instructions to accept service (thus, no jurisdiction by submission) February 1995 S sought order for substituted service on J Registrar ordered that personal service be dispensed with and that service be effected by posting sealed copy of summons to J s solicitors and accountants (order for substituted service made) J then applied to have the substituted service order set aside

13 Decision OP issued while J was still in the jurisdiction (cf Laurie where OP had not been issued before D left jurisdiction) Strong suggestion that J knew of the summons and left country in order to evade its service, hence order for substituted service was granted (Request to HCA for special leave was rejected) Principle KNOWLEDGE is key What did D actually know? If D leaves jurisdiction KNOWING writ was issued (service of writ was coming) Court will have power over D (through substituted service) Court can order substituted service to satisfy personal jurisdiction If D leaves jurisdiction after writ issued + before service, but did NOT KNOW that writ was issued Court will not have jurisdiction Jurisdiction by SUBMISSION Instructing solicitors to accept service is enough (did not happen here) HRH v Wildenstein Facts Dispute as to authenticity of artwork Both parties were resident in France Both parties owned properties in UK (including stud farms in Ireland) Both parties were connected with social life in England H served writ (claiming rescission and repayment) on W at Ascot when he popped in briefly for a horse race (writ served at races) Principle Fleeting presence is sufficient [Laurie] Short visit irrelevant (D need only be served in the jurisdiction) Court should not strike out unless vexatious/oppressive/abuse of process Purpose Irrelevant that it was very impolite to serve D at a social event Even though P s action was bad form, it was not an abuse of legal process Purpose for which D is in the jurisdiction: Perrett v Robinson Facts R injured P in car accident in NT (both were resident in NT) Car owned by W (registered in Qld) NT law did not allow claim for future economic loss (under scheme) P wanted to sue in Qld (no scheme), as he could get full CL damages P drove R to Qld where he served the process on him (collusion) (R did not complain as FAI were ultimately liable as insurers) FAI objected to Qld jurisdiction on the basis of fraud FAI wanted service of the writ set aside, plus a stay on proceedings

14 Principle Generally, the reason why D is in the jurisdiction (purpose of visit) is irrelevant (the court will have personal jurisdiction at CL) UNLESS D tricked/fraudulently enticed/coerced into the jurisdiction by P to be served (no jurisdiction) [Laurie] No fraud if D entered the jurisdiction willingly (despite collusion) (No fraud if D willingly made himself available to be served) Valid if D came into jurisdiction specially to be served Generally, D must be in the jurisdiction for the sole purpose of x No jurisdiction if D solely fraudulently enticed Insurance k FAI had agreed to be liable for damages in Qld, plus had presence in Qld, so fell within jurisdiction of QLDSC anyway (This was just in accordance with the insurance k) Case study: [1] Does the NSWSC have jurisdiction under CL principles? M is a London-based music promoter, who founded The Big Racket festival in 2004 In the lead up to the 2016 festival, ticket sales were particularly dire A number of 2015 bands, including Australian band Noose, had still not been paid The 2016 line-up was partially announced; the headline act was American band BMYM. Shortly after the line-up announcement, BMYM tweeted that they were not yet confirmed to play The Big Racket, and were still in discussions with M M immediately called BMYM, who were touring Australia. The vocalist (P), told M that he knew that 2015 bands had still not been paid. BMYM did not want to find themselves in that situation P demanded BMYM receive an increased percentage of its fee upfront, and that M travel to Australia to discuss further terms in person M agreed, but noted that it had to be a very short trip (of only a few hours) due to competing commitments M went to Australia, and visited BMTH at their hotel in Sydney. When he entered P s hotel room, he was surprised to see the members of Noose together with P M was served with a writ issued out of the NSWSC, which claimed outstanding fees owed to Noose relating to The Big Racket 2015 You tricked me, you filthy pig! screamed M I did not trick you, squealed P, I did want to discuss terms in person, and we do need a greater percentage up front. But you need to pay these guys Jurisdiction/presence is territorial at CL [Gosper], unless there has been submission No submission here, thus the issue is whether this presence is sufficient for the purposes of the court s personal jurisdiction at CL Fleeting presence is sufficient [HMH]

15 Main issue Whether the purpose for which D was in NSW comes within the scope of the exception identified in Laurie (exception to the general rule that presence is sufficient if D is in the jurisdiction for the purpose of fraud/tricked/coerced) Unlike Perrett v Robinson, there was no collusion here Tricked? o D came into the jurisdiction on the basis of incomplete assumptions o Sometimes an omission can be tantamount to a trick o But, D was not tricked as, P did want D here for that reason, but there were just other things happening as well o Exception does not apply, as D brought into jurisdiction to be served + to discuss other things, thus D would be subject to the court s jurisdiction [Nygh] What if more than 1 reason why D is convinced to enter the jurisdiction (purpose)? o Binding à Laurie EXCEPTION only operates when D entered jurisdiction for the SOLE PURPOSE of being served [Nygh; (Stein)] o Not binding, but persuasive à not an abuse of process if P had bona fide intentions in inviting D into the jurisdiction, even if there was a collateral aim of serving process (need not be the sole purpose, can be collateral) [Watkins] o Sole purpose exception has been interpreted narrowly [Evers] [2] Does the NSWSC have jurisdiction under CL principles? Upon landing, M receives a tip off that Noose are trying to have him served M immediately books another flight and goes back to London to avoid being served Substituted service [Joye] But, the only reason D was in the jurisdiction in the first place was because of fraud Even though D left with knowledge, he was only in the jurisdiction because of fraud D s presence, which is a necessary condition for the order of substituted service turned on P s fraud (answer here depends on whether fraud was found in the 1 st place) PERSONAL SERVICE [UCPR NSW] UCPR r (when is personal service required)? Originating process in all courts (except local courts) must be personally served UCPR r (how is service effected)? Leaving copy of document with person If person does not accept, put copy down in person s presence + inform nature of doc If person serving is prevented by violence/threat of violence from serving, then leave it as near as practicable to person being served

16 SUBSTITUTED SERVICE What if the D is present in the jurisdiction, but cannot be served? UCPR r (1) If a doc required/permitted to be served on a person in connection with proceedings: (a) cannot practicably be served on the person, or (b) cannot practicably be served on the person in the manner provided by law, 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 doc to the notice of the person concerned (2) Court order can direct that document 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 Carrying on business for a while (cf fleeting presence for natural persons) All companies conducting business in Australia are amenable to jurisdiction of all State/Territory courts, even if does not conduct business in the State/Territory forum ss 601CD, 601CT(1), 601CG CA Foreign corporations carrying on business in Australia must register as foreign corporations, establish local office and appoint local agent s 9 SEPA Service can be effected on Australia + registered foreign corporations by leaving it at their registered office s 15 SEPA Can serve OP of any State in another State If the foreign company is NOT registered in Australia, Must rely on CL rules in Wimborne/service out of jurisdiction Corporations registered in Australia: UCPR r (personal service on corporation) 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 (CA below), be served on the corporation

17 s 109X CA (for corporations) Leaving at/posting to registered office (or at liquidator s/administrator s office if in liquidation/administration) Personal service on director who resides in Australia s 601CX CA (for foreign corporations) Leaving at/sending to registered office/local agent Personally delivering copy to 2 directors if 1/more live in Australia Personally delivering to director of foreign corporation who resides in Australia If corporation NOT REGISTERED in Australia (CL): CL only relevant for unregistered foreign corporations Like a person, company needs to be present in the jurisdiction National Commercial Bank v Wimbourne Facts NCB (Saudi Arabian bank) had no assets, no branch, no agency, no place of business in NSW But, in a few cases, NCB used SYD Bank in collecting proceeds of bills of exchange from NSW importers and remitting proceeds to NCB in SA Issue Decision Principle Did NSWSC have jurisdiction over NCB? No NCB not present in jurisdiction (claim struck out) When is a corporation present? Presence = carrying on business in the forum/jurisdiction If a foreign corporation is NOT registered in Australia, but is carrying on BUSINESS in NSW, that foreign corporation is PRESENT in NSW When is the foreign corporation carrying on business in the forum? 1. Agent with authority to make ks with people in NSW on behalf of the foreign corporation 2. Foreign corporation has business carried on at some fixed and definite place within the State (place of business)? 3. Business continued for a sufficiently substantial period of time [1] Agent: Corporation will NOT have presence if the agent is a mere ministerial agent / agent is carrying on its own business (and not that of the foreign corporation) No presence if the foreign corporation has appointed a local solicitor to commence/defend particular legal proceedings in the jurisdiction (not enough to be an agent in the jurisdiction) [cf natural person in Laurie] Indicators: Name of foreign corporation is displayed at agent s place of business Foreign business pays rent/pays office expenses/employs staff? The more the foreign business does in NSW, the more likely a NSW court will have jurisdiction over it

18 Adams v Cape Industries (different issue) Facts D (UK Company, CI, was the parent company of South African asbestos mining company) supplied asbestos for insulation material D sold to factory in Texas P (200+ employees, of which A was 1) in Texas sued for negligence and won judgment ($15m+) and then tried to enforce against P s assets in UK Issue Does foreign place have jurisdiction over a corporation (different issue)? Had the Texas Court exercised jurisdiction in the international sense? Decision Principle CI had no fixed place of business in the US (even though D had a subsidiary operating in US, it had no place of business in Texas, and was carrying on subsidiary s business, not the parent company s business) A corporation will be present in a foreign nation if it carries on business there at a fixed place + for more than a minimal period of time For a company to have a presence in the foreign jurisdiction/nation Company must have its own fixed place of business (a branch office) in the jurisdiction from which it has carried on its own business for more than a minimal time; and Company s business was transacted from that fixed place of business JURISDICTION BASED ON D s SUBMISSION Ways that a D can submit to the court s jurisdiction: Positively indicating submission o Entering an unconditional appearance o Instructing lawyers to accept service o Agreement in advance ( jurisdiction clause AKA forum clause ) Submission inferred from conduct Submission by appearance: Some jurisdictions distinguish an unconditional / conditional appearance Conditional = D recognises he has been given a writ, but contests court s jurisdiction There is no such distinction in NSW (just an appearance ) Perkins v Williams; Gascoyne Trading v Pen-Pak Ocean Products (Filing an unconditional appearance in a jurisdiction that provides for a way to set aside the process without filing an unconditional appearance (NSW) amounts to submission) Filing an appearance can amount to a submission, because, in NSW, D can apply to have service set aside without appearing UCPR r 6.9 In NSW, a D can enter an appearance by filing a notice of appearance UCPR r D can apply to set aside the writ/service without entering an appearance

19 Submission by instructing lawyers (positive submission): Common in litigation to serve documents on D s lawyers A person located overseas can instruct Australian lawyers to accept service in Australia on their behalf, as per rules of all superior courts Merely instructing lawyers does NOT amount to submission, But, instructing lawyers to accept service on his/its behalf amounts to a submission UCPR r Solicitor can accept OP/served document on behalf of any person Duly served if solicitor notes acceptance on OP Submission by agreement (in advance) (positive submission): Jurisdiction cl/forum cl/jurisdiction agreement Parties may agree in a k that a court has jurisdiction in disputes arising in relation to x (An agreement to submit to the jurisdiction of the court) Venter v Ilona Submission = insofar as the customer is a merchant (who has been entered as such in the commercial register), then Bochum shall be the place of jurisdiction UCPR r 10.6(1) Parties can be served by each other in accordance with any agreement/binding undertaking (e.g. Parties agree to exclusive jurisdiction of NSW courts to resolve their disputes ) Mondial Trading v Interocean Marine Transport Also at CL, jurisdiction cl can amount to submission Dunbee v Gilman Jurisdiction cl must be in express terms Howard Parties can specify (in a jurisdiction cl) how service is to be effected (mode of service different from those in the rules) But, if not specified, then must use the rules to serve (NB: if party to be served is overseas, this can be effected under sch 6, para h)

20 Submission inferred from D s conduct: The Messiniaki Tolmi D takes a step in proceedings which (in all the circumstances) amounts to a recognition of the court s jurisdiction in respect of the claim (No appearance/agreement/instruction to solicitors, but D does something which entails that he necessarily accepts that the court has power in the case) Conduct inconsistent with protest against jurisdiction includes: [1] Arguing merits (of claim) at same time as objecting to jurisdiction [Vertzyas; Winborne] P serves D in a k matter D disputes that the court has jurisdiction At the same time D argues that there was no breach If D is arguing that there was no breach, then D is making this argument with the assumption that the court should determine the controversy in D s favour, and asking the court to do this means D wants the court to have power, thus inconsistent [2] Counterclaims on grounds related to P s claims [Marlborough] [3] Consenting to interlocutory orders The Messiniaki Tolmi What steps amount to voluntary submission depends on the CONTEXT/circumstances of the case (but, having submitted, a party is precluded from objecting to jurisdiction) Howard v National Bank of NZ Facts Concerned FCR (same as NSW rules): service of OP in accordance with agreement between the parties will enliven Court's jurisdiction over D P commenced proceedings against National Bank of NZ in FCA OP issued in Qld FC, but served on Bank in NZ without leave of court Claim P sought order confirming validity of service Ds argued not properly served outside the jurisdiction and, thus, no jurisdiction established Decision Lawyers had unqualified instructions from D to receive OP on behalf of bank and they received it They had also told this to the P s lawyers This was enough to bring the D within the jurisdiction of the FCA Principle If a respondent in/outside the Cth agrees in a formal/informal ad hoc way that the OP in a particular case may be served on it at a place in/outside the Cth, service in accordance with that agreement will be effective to give this Court jurisdiction in the action over that respondent. [The rule] allows service not only to respondents in the Cth, but also respondents outside the Cth, which will be effective to entitle the Court to exercise over both local and foreign residents such jurisdiction as it may have in actions in personam Agreements to submit to jurisdiction are sufficient for the purposes of the court having jurisdiction Can submit by agreement even though you are not present