Summary Notes Contract

Transcription

1 Summary Notes Contract 1. What is the connection with the other jurisdiction? 2. Is there time to serve? a. Primary action commenced by filing summons: SCCR 34 b. Have six months to serve defendant: SCCR 39(1)(b) 3. Method of service: a. If company: i. Serve as authorise or serve on directors: SCCR 62 ii. Can serve by leaving at registered office: SCCR 109X(1) iii. If trading in Australia, must be registered with ASIC which will be sufficient for presence: s 601CD, Corporations Act b. If individual: i. Personal service required: SCCR 67(1) ii. May be physically present: Laurie v Carroll iii. May also have submitted through instructions (SCCR 67(1)(c)), appearance (Malborough Harbour Board) or express agreement (SCCR 40A(k)) 4. Service outside of jurisdiction (without leave): a. If Australian state: i. Can serve in other state in the same way: s 15, SEPA b. If NZ: i. Can serve in NZ in the same way: s 9, TTPA c. If international: i. May be relation to contract (SCCR 40A(b)) and (i) entered in Aus; (ii) made through agent in Aus (iii) to be performed in Aus (iv) governed by Aus law ii. May be in relation to breach in Aus: SCCR 40A(c) iii. Defendant may be domiciled, ordinary resident or habitually resident in Aus: SCCR 40(g) iv. May relate to Aus property: SCCR 40A(e) 5. Service outside of jurisdiction (with leave): a. Consider prospects of success as per Agar v Hyde b. Consider if real and substantial connection, appropriate forum and circumstances: SCCR 40B(5) c. If Hague Convention on Service signatory, effect under that: art 3-6; SCCR 41D. If not, serve personally in accordance with other country s laws: SCCR 40H 6. Challenging jurisdiction: a. If in Aus: i. Transfer to other jurisdiction: s 5, Cross Vesting Act ii. Stay if other court has jurisdiction: s 20, SEPA b. If in NZ: i. Stay on basis NZ is more appropriate: s 19, TTPA

2 c. If international: i. Set aside if SCCR 40(1): (a) not authorised, (b) inappropriate forum as per Voth, (c) insufficient prospects of success d. If jurisdiction agreement: i. Determine if exclusive or not on the basis of express and implied terms ii. If exclusive, enforce unless against public policy: Akai iii. If in NZ, see specific requirements: s 20, TTPA 7. Choice of law: a. Ensure there is a true conflict: Koop v Bebb b. Classify the issue in dispute: Macmillian v Bishopsgate (No 3), according to law of the forum: Oceanic Sun Line Special Shipping Co Ltd v Fay c. Determine if the issue is substantive or procedural law, with substantive being law of the cause and procedural law of the forum: McKain v RW Miller d. Find proper law of the contract i. Look to the express intention of the contract ii. Look to an implied intention of the contract: Akai iii. Find where most real and substantial connection: Bonython v Commonwealth e. Apply proper law to the contract f. Consider exclusions: i. Mandatory rules: ACCC v Valve ii. Application of government interests: AG (UK) v Heinemann Publishers Australia Pty Ltd iii. Public policy exclusions: Reggazzoni v KC Sethia 8. Prove foreign law as fact if parties choose to plead identity presumed: Regie Nationale Voth Must be clearly inappropriate forum on the basis that it: o Is vexatious, oppressive or an abuse of process, brings an injustice to the defendant o and is clearly inappropriate on the basis of connecting factors Able to seek a legitimate advantage in forum selection Relies on considerations of connection from Spiliada, including: o Applicable law o Availability of witnesses o Financial position of the parties o Places where the parties reside o Multiplicity of proceedings o Efficiency, expedition and economy of the proceedings

3 Tort 1. What is the connection with the other jurisdiction? 2. Is there time to serve? a. Primary action commenced by filing summons: SCCR 34 b. Have six months to serve defendant: SCCR 39(1)(b) 3. Method of service: a. If company: i. Serve as authorise or serve on directors: SCCR 62 ii. Can serve by leaving at registered office: SCCR 109X(1) iii. If trading in Australia, must be registered with ASIC which will be sufficient for presence: s 601CD, Corporations Act b. If individual: i. Personal service required: SCCR 67(1) ii. May be physically present: Laurie v Carroll iii. May also have submitted through instructions (SCCR 67(1)(c)), appearance (Malborough Harbour Board) or express agreement (SCCR 40A(k)) 4. Service outside of jurisdiction (without leave): a. If Australian state: i. Can serve in other state in the same way: s 15, SEPA b. If NZ: i. Can serve in NZ in the same way: s 9, TTPA c. If international: i. May be in relation to tort (SCCR 40A(a)) that was (i) done in Australia or (ii) damage was in Australia ii. Defendant may be domiciled, ordinary resident or habitually resident in Aus: SCCR 40(g) iii. May be in relation to Aus statute (SCCR 40A(p)) 5. Service outside of jurisdiction (with leave): a. Consider prospects of success as per Agar v Hyde b. Consider if real and substantial connection, appropriate forum and circumstances: SCCR 40B(5) c. If Hague Convention on Service signatory, effect under that: art 3-6; SCCR 41D. If not, serve personally in accordance with other country s laws: SCCR 40H 6. Challenging jurisdiction: a. If in Aus: i. Transfer to other jurisdiction: s 5, Cross Vesting Act ii. Stay if other court has jurisdiction: s 20, SEPA b. If in NZ: i. Stay on basis NZ is more appropriate: s 19, TTPA c. If international: i. Set aside if SCCR 40(1): (a) not authorised, (b) inappropriate forum as per Voth, (c) insufficient prospects of success 7. Choice of law: a. Ensure there is a true conflict: Koop v Bebb b. Classify the issue in dispute: Macmillian v Bishopsgate (No 3), according to law of the forum: Oceanic Sun Line Special Shipping Co Ltd v Fay

4 c. Determine if the issue is substantive or procedural law, with substantive being law of the cause and procedural law of the forum: McKain v RW Miller d. Find lex loci delete (where negligent act or omission occurs): Breavington; Pfeiffer e. Apply law of place where tort occurred f. Consider renvoi: i. Take into account foreign court s choice of law rules, and if foreign court remits hear if possible: Neilson ii. Transmission (referral to a third country) possible but unlikely g. Consider exclusions: i. Public policy: Kuwait Airways Corp v Iraqi h. Prove foreign law as fact if parties choose to plead identity presumed: Regie Nationale

5 Enforcement 1. If within Aus: a. Full faith and credit applies: s 118, Constitution; s 185, Evidence Act b. State Matters i. Register on lodgement of copy of judgment: s 105, SEPA ii. As per s 105, must be (5) enforceable by court that made judgment and (6) from a SC or other court capable of making judgment iii. Can be stayed if subject to appeal: s 106(1) iv. PIL no longer applies: s 109 c. Federal Matters i. Judgments of Federal courts may be enforced throughout Australia: s 25, Judiciary Act 1903 (Cth); s 18, Federal Court of Australia Act 1976 (Cth) d. Defences i. None 2. If within NZ: a. Aus courts must enforce registrable NZ judgments: s 68, TTPA b. s 66(1) Registrable judgments are i. (a) final and conclusive ii. (b) given in a civil proceeding iii. (c) registered in NZ c. s 66(2) Registrable judgment is not i. (a) excluded matter ii. (b) non monetary iii. (c) crime iv. (d) probate v. (e) guardianship vi. (f) managing property for incapable vii. (g) child welfare viii. (h) pecuniary penalty via regulations ix. (f) conviction x. (j) regulation based d. S 72, Australian court can set aside if i. (a) contrary to public policy ii. (b) judgment was registered in contravention of the Act iii. (c) in relation to immovable property not situated in NZ at the time of the proceedings 3. If international: a. Does Foreign Judgments Act 1991 (Cth) apply? i. Within 6 years: s 6(1) ii. Final or interlocutory: s 3(1) iii. Final and conclusive: s 5(5) iv. Made by court to which act applies: Sch 1, Foreign Judgment Regs v. Provide notice personally on each debtor: SCCR 346(7) b. If so, can set aside under s 7(2)(a):

6 i. (ii) judgment fore greater than amount payable at registration date ii. (iii) registered in contravention of the act iii. (iv) no jurisdiction iv. (v) insufficient notice v. (vi) fraud vi. (vii) reversed on appeal vii. (viii) rights not vested by person making application viii. (ix) judgment discharged ix. (x) judgment wholly satisfied x. (xi) contrary to public policy c. If not, do common law conditions apply (Robertson v Struth)? i. Court must have international jurisdiction as per law of the forum ii. Judgment must be final and conclusive iii. Judgment must be for fixed sum iv. Identical parties d. If so, can set aside: i. Fraud ii. Denial of natural justice iii. Enforcement of foreign governmental interest iv. Manifestly contrary to public policy v. Penal or revenue judgment vi. Incompatible judgment vii. Foreign competition judgment viii. Subject to estoppel with Aus proceedings

7 Arbitration 1. Governed by the International Arbitration Act 1974 (IAA), informed by NY Convention and Model Law 2. Is it international commercial arbitration? a. Are parties in (a) different places or business (b) place of arbitration/performance different (c) expressly provided: art 1(3), Model Law b. Is it commercial as per wide definition: art 1(1), Model Law c. Is it in writing: s 3, IAA 3. Will proceedings be stayed? a. Is governed by convention country or convention party or Australian domicile: s 7(1), IAA b. Have proceedings been instituted but matter is capable of being settled by arbitration: s 7(2) i. Must be arbitrable, not excluded matter (eg criminal, employment, family) ii. Must be within the scope given flexible approach unless narrow language used: Comandate Marine Corp v Pan Australia Shipping iii. May not be invalid or inoperative agreement: Zhang v Shanghai Wool iv. Must not be prohibited by mandatory statute: s 7(5), IAA v. Must have valid exercise of third party rights, where claim derived from party or sufficient proximity: s 7(4), IAA; BHPH Freight Pty Ltd v Cosco Oceania Chartering 4. If proceeding to arbitration, apply relevant law: a. Law governing merits of dispute: i. Express choice and mandatory rules: art 28(1) ML ii. Then implied choice: Akai Pty Ltd; art 28(1) ML iii. Then connection to other countries: art 28(2) ML; Compagnie b. Law governing interpretation of arbitration agreement: i. Express choice in contract: International Tank & Pipe SAK v Kuwait Aviation Fuelling Co KSC ii. If no choice, law of the place or seat of the arbitration: Deutsche Schachtbau GmbH v Shell International Petroleum Co Ltd c. Law governing arbitral procedure: i. Seat of arbitration: James Miller & Partners v Whitworth Street Estates (Manchester) Ltd 5. Enforcing Arbitral Award a. Check conditions for enforcement: i. As per s 8, IAA, NY Convention applies ii. Must be in convention state: art I(3), NYC iii. Parties seeking enforcement must be domicile or residence or have assets: s 3(3), IAA iv. Must have certified copy: s 9(1), IAA b. Effects of enforcement: i. Become binding on all parties (s 8(1), IAA) and applies to all territories (s 8(2), IAA)

8 6. Setting Aside Arbitral Award as per s 8(5), IAA (informed by s 34, ML) a. (a) incapacity or parties b. (b) invalidity of agreement c. (c) lack of notice or opportunity d. (d) beyond scope of arbitration e. (e) composition of tribunal not in line with agreement f. Award not binding (issue not resolved, subject to challenge) can be stayed: s 8(8) g. Subject matter is different or not capable of settlement: s 8(7)(a) h. Contrary to public policy: s 8(7)(b)