Private International Law A

Transcription

1 LAWS5017 Contents Private International Law A 1. Scope of Private International Law... 6 (A) SOME CONCEPTS AND PERSISTENT ISSUES... 6 (B) TRANSNATIONAL LEGAL PROBLEMS: TWO CASE STUDIES Personal Jurisdiction (A) COMMON LAW (i) Territorial jurisdiction based on defendant s presence (ii) Jurisdiction based on defendant s submission (B) SERVICE OUT OF THE JURISDICTION (i) General considerations (ii) Contract (iii) Tort (iv) Other cases (C) DISCRETIONARY NON-EXERCISE OF JURISDICTION (i) Foreign jurisdiction clauses (ii) Forum non conveniens ( clearly inappropriate forum ). Local proceedings oppressive or vexatious (D) ANTI-SUIT INJUNCTIONS (i) Foreign proceedings unconscionable, oppressive or vexatious for the purposes of equity 52 (ii) Remedies in foreign proceedings (e.g. multiple damages) unavailable in the forum (iii) The role of international comity ( respect for the jurisdiction of the foreign court ) (iv) Trans-Tasman proceedings (v) Intranational proceedings Substance and Procedure (A) RATIONALE OF THE DISTINCTION AND CHARACTERISATION (i) The efficiency of litigation : kinds of process, pleadings, admissibility of evidence, form of remedy as procedural issues; the existence and content of legal rights and duties as substantive issues (ii) Characterisation by the lex fori (B) LIMITATION OF ACTIONS; DAMAGES (i) Traditional distinction between substantive (extinguishing the right) and procedural (barring the remedy) limitation laws

2 (ii) Statutory reform in respect of intranational (and New Zealand) limitation laws; query limitation laws of countries outside Australia (and New Zealand) (iii) Remoteness of damage; heads of damage; quantification of damages Proof of Foreign Law (A) FOREIGN LAW AS FACT. METHODS OF PROOF (i) Foreign law as fact (ii) Role of expert evidence and the presumption of similarity (iii) Co-existence of common law and statutory methods of proof (iv) New Zealand legislation (v) Filing of notices, determination of foreign law by foreign court (vi) Foreign tort claims (B) WHO IS A COMPETENT WITNESS? (i) Practitioners, judges, persons academically qualified (ii) Questions of commercial practice or usage Exclusionary Doctrines (A) FOREIGN REVENUE LAWS (B) (i) Policy against direct/indirect enforcement and the extra-territorial assertion of foreign sovereign authority (ii) Recognition of foreign revenue laws (i) FOREIGN PENAL LAWS, FOREIGN PUBLIC LAWS AND FOREIGN GOVERNMENTAL INTERESTS 85 What is a penal law? A law that awards a penalty to the state to redress a public wrong 85 (ii) An independent exclusionary doctrine in relation to public laws? What is a public law? 87 (iii) Australian courts will not enforce the governmental interests of foreign states ( claims enforcing the interests of a foreign sovereign which arise from the exercise of certain powers peculiar to government ) (C) FORUM PUBLIC POLICY (i) Violation of fundamental principles of justice or morality (ii) Gross violation of human rights (iii) Flagrant breach of public international law (iv) Constitutional and federal considerations (full faith and credit) Choice of Law in Contract (A) CONCEPT OF THE PROPER LAW AND ITS IDENTIFICATION (i) Express choice of law and limitations on party autonomy (ii) Inferred choice of law

3 (iii) Objective proper law: the system of law by reference to which the contract was made or that with which the transaction has its closest and most real connection (iv) Contracts relating to immovable property (land): a strong indication or presumption in favour of the lex situs in the absence of an express or inferred choice of law (v) Renvoi doctrine (B) CAPACITY (i) Lex domicilii (law of the place of indefinite home in the case of a natural person; law of the place of incorporation in the case of a corporation) (ii) Lex loci contractus (law of the place where the contract was made) (iii) Objective proper law (iv) Contracts relating to immovable property FORMATION (i) A preliminary question: is the transaction a contract? Consensus ad idem (agreement to the same thing) and the express terms of the contract; existence of agreement, mistake, non est factum governed by the lex fori. A secondary question: is the transaction a legally binding contract? governed by the putative (supposed) proper law (ii) Offer and acceptance (e.g. timely acceptance of an offer or the application of the postal acceptance rule) governed by the putative (supposed) proper law (iii) Consideration whether a necessary element of a binding contract - governed by the proper law (iv) Contracts for the international sale of goods [not examinable] FORMAL VALIDITY (i) Statute of Frauds provisions ( no action or proceedings may be brought ) (ii) Mandatory requirements (e.g. execution of document in the presence of a notary public): compliance with lex loci contractus or the proper law ILLEGALITY AND FOREIGN PUBLIC POLICY (i) Illegality: the respective roles of the proper law, lex fori and the law of the place of performance (lex loci solutionis) (ii) Foreign public policy. Considerations of international comity may indicate that Australian courts should not enforce a contract contrary to the public policy of the foreign place of performance DURESS AND FORUM PUBLIC POLICY PERFORMANCE, VARIATION AND DISCHARGE (i) Performance (ii) Excuses for non-performance (iii) Variation and discharge DAMAGES FOR BREACH OF CONTRACT (i) Remoteness of damage (ii) Measure of damages

4 7. Choice of Law in Tort (A) FOREIGN TORTS AND LOCAL TORTS; MARITIME TORTS AND AERIAL TORTS (i) Lex fori as the only relevant law in respect of local torts (torts committed in the forum); intranational torts and international torts; where is a tort committed?; the Distillers test (ii) Maritime torts: internal or inland waters (including bays and harbours) and the territorial sea as part of the coastal state; ships engaged in innocent passage through the territorial sea?; torts committed on the high seas (iii) Aircraft on the ground and in flight; airspace as part of the territory of the subjacent state 144 (B) HISTORICAL BACKGROUND (i) The rule in Phillips v. Eyre: double actionability - wrongs actionable if committed in the forum and not justifiable (i.e. giving rise to civil liability) under the lex loci delicti (law of the place where the wrong was committed); lex fori as the applicable substantive law (ii) A flexible exception to the rule in Phillips v. Eyre? (C) MODERN AUSTRALIAN LAW (ii) Intranational torts: the lex loci delicti as the applicable substantive law; rejection of double actionability ; no role for forum public policy as an exclusionary doctrine; rejection of any flexible exception ; amount or quantification of damages as a substantive, rather than a procedural, issue; reasons for adopting the lex loci delicti as the applicable substantive law? 158 (iii) International torts: the lex loci delicti as the applicable substantive law; rejection of double actionability ; forum public policy as an exclusionary doctrine; rejection of any flexible exception ; query amount or quantification of damages as a substantive or procedural issue 160 (iia) Standard of care (iv) Forum statutes (v) Concurrent liability in tort and contract (vi) Renvoi doctrine (vii) Foreign compensation schemes (D) COMPARATIVE APPROACHES (i) United States (ii) Canada (iii) European Union (iv) PRC, Japan, Singapore Foreign Judgments (A) ENFORCEMENT OF FOREIGN JUDGMENTS AT COMMON LAW (i) Jurisdiction in the international sense (ii) Final and conclusive (iii) Fixed (definite) sum of money (iv) Recognition of foreign non-money equitable orders

5 (v) Defences (vi) Conclusiveness of foreign judgments (vii) Procedure

6 1. Scope of Private International Law Private International Law is the regime of legal principles applied by Australian courts in cases which have a relevant foreign element This element may be a fact or a party connected with the relevant foreign legal system. What is a relevant foreign connection in the Australian system may not be a relevant foreign connection in another system Final exam is going to cover all materials Terminology Term lex fori lex loci delicti/locus delicti lex causae Forum non conveniens Definition The law of the country in which an action is brought The law of the place where the tort was committed Law of the cause Discretionary power that allows courts to dismiss a case where another court, or forum, is much better suited to hear the case (A) SOME CONCEPTS AND PERSISTENT ISSUES The relationship between private international law and public international law Although both these disciplines are concerned with legal questions which transcend national or territorial boundaries and the confines of a single municipal legal system, private international law and public international law have a different scope and character. Private international law is part of municipal law and its sources (municipal legislation and decided cases) are the same sources which inform other parts of municipal law, such as tort, contract and property. - Private international law is concerned with the interaction of legal systems Public international law, on the other hand, is the body of legal rules, universal in character, which regulates relations between sovereign states and is founded on the consent of states as manifested in treaties and international custom. Countries in private international law In private international law, we use the term country, not state A country is a geographical area with its own system of private law There are many sovereign states which are not countries for the purposes of private international law (e.g. Tasmania, California, British Columbia, Scotland, Hong Kong SAR) New Zealand and all the countries in Western Europe are typical unitary legal systems - i.e. they are a sovereign state for public international law and a country for the purposes of private international law. 6

7 Other states and territories in NSW From the perspective of a NSW court for choice of law purposes, the other states and territories of Australia are foreign legal systems. However, the same, albeit it with minor variations, regime of choice of law in tort principles apply to intranational torts as international torts. Sec 15(1) of the Service and Execution of Process Act 1992 (Cth) makes Australia a single law area for the purpose only of service of originating process. Three major areas of study in Private International Law A 1. Personal jurisdiction: the private international law principles that determine whether a person, which includes a non-natural person such as a corporation, is subject to the jurisdiction (power or authority) of an Australian Court (Oceanic Sun Line Special Shipping Co v Fay (1988)). 2. Choice of law: the principles concerned with identifying the system of legal rules which will be applied by an Australian court. Every area of private law has a choice of law aspect to it. - For example, the NSWSC in its probate jurisdiction in respect of devolution on death of property will apply the rules of private international law. These include that the devolution of death of movable property (including money in a bank account) is governed by the law of the place of domicile of the deceased person and immovable property is governed by the law where the property is situated. 3. Foreign judgments: the recognition and enforcement in Australia of foreign judgments. Choice of law rules There are three choice of law rules relevant in this course: 1. Procedural issues are governed by the lex fori. 2. Liability in tort is governed by the lex loci delicti (the law of the place where the tort was committed). 3. Liability in contract is governed by the proper law of the contract (the law agreed by the parties or, in the absence of agreement, the legal system with which the contract has its closest and most real connection). In the choice of law process, the expression lex causae (law of the cause) is a description of the legal system identified by the relevant forum choice of law rule as the applicable substantive law. - For example, in a case involving liability in tort, the lex causae is the lex loci delicti. (B) TRANSNATIONAL LEGAL PROBLEMS: TWO CASE STUDIES The function and purpose of private international law (conflict of laws) is illustrated by two case studies in transnational legal problems: Dr Fay's personal injury in a shipboard accident during a Greek islands cruise and his attempt, as a Queensland resident, to litigate a common 7

8 law negligence action in New South Wales against a Greek shipping line (Oceanic Sun Line Special Shipping Co v. Fay); and the death at sea in a work-related accident off the coast of Thailand of the chief engineer of an Australian registered ship and the private international law issues which arose in the subsequent tort and contract proceedings in New South Wales (Venter v. Ilona MY). In these cases, reference is made to two persistent issues in private international law: 1. Choice of law (which system of law should the court apply?), and 2. Personal jurisdiction (is the defendant subject to the authority of the court and, if so, is there a discretionary ground on which the court may decline to exercise jurisdiction?) A Greek islands cruise *Oceanic Sun Line Special Shipping Co v. Fay (1988) 165 CLR In this case, the NSWSC was exercising jurisdiction over a Greek corporation concerning a maritime tort committed in Greece. - The P, Dr Fay (a veterinarian), was a resident of Queensland. He booked a cruise through a travel agent in NSW. - The travel agent, acting on behalf of the P, paid for the ticket and in return received an exchange order. - The exchange order set out the relevant details of the cruise (cabin number etc.) and included the clause: this exchange order will be exchanged for a ticket when the passenger boards the ship in Greece. - The cruise was to be conducted in entirely Greek territorial waters. The ship, the Stella Oceanis, was registered in Greece and was a Greek flag vessel. - The cruise was owned and operated by the D, Oceanic Sun Line: a Greek corporation with its headquarters in Athens. - When Dr Fay boarded the ship, the exchange order was exchanged for a ticket. - The travel agent took all of the tickets on behalf of the tour party. - After a few days, she disposed of all of the tickets except one. - While the ship was in Greek territorial waters, an accident occurred: while the P was engaged in clay shooting, the gun discharged into his abdomen and he suffered massive personal injury. - Dr Fay argued negligence on the part of the D in the supply of the defective recreational equipment. He received 3 weeks of intensive medical treatment in Athens and was subsequently repatriated to Australia. - In the first instance, Dr Fay came to NSW for the purpose of extensive surgical procedures (he ultimately returned to his home in Queensland). - The P commenced proceedings in the Supreme Court of NSW and the Ds appealed to the HCA. - The P s claim was founded solely on the tort of negligence (although there was concurrent liability in tort and contract). Issues: 1. Personal jurisdiction 8

9 2. Choice of law in tort 3. Substance and procedure Outcome: - Personal jurisdiction Note: there are only 2 bases of common law jurisdiction: 1. The presence of the defendant within the territory of NSW, or 2. Voluntary submission. The D was a company outside NSW and therefore, originating process can only be served under statutory authority. Sec 15(1) of the Service and Execution of Process Act 1992 (Cth) does not apply as it is concerned with service in other parts of Australia. Schedule 6 paragraph (e) of the Uniform Civil Procedure Rules 2005 (formerly Part 10 of the Supreme Court Rules 1970 and now Sch 6, paragraph (a)(ii) in the revised UCPR rules) contains the only possible basis for service of originating process: UCPR 2005 Schedule 6 Service outside of Australia without leave An originating process may be served outside of Australia without leave in the following cases: (e) when the claim is founded on a tortious act or omission: (i) which was done or which occurred wholly or partly in [NSW]/Australia, or (ii) in respect of which the damage was sustained wholly or partly in [NSW]/Australia Even though, in this case, the tort was committed in Greece, the P suffered some damage in NSW (the medical and hospital expenses incurred after his repatriation to Australia) and therefore fell within (e). However, this doesn t exhaust all the jurisdictional questions in a case of this kind because, in all cases, the court has discretionary power to decline to exercise jurisdiction. The originating process was served on the defendant in Greece by reference to paragraph (e) of the UCPR If the defendant had done nothing, nothing would have happened as a result because any judgment of the NSWSC is not enforceable in any other country but New Zealand. The D applied for a permanent stay of the proceedings on the basis of the two discretionary grounds: a) First ground: foreign jurisdiction clause. The Greek D argued that there is an exclusive Greek jurisdiction clause. 9

10 The ticket contained the statement: in the event of any claim of the passenger against the carrier, the courts of Athens, Greece have exclusive jurisdiction. The HCA was of no doubt from a private international law point of view that the proper law of the contract (and therefore any subsequent litigation) of carriage was Greek law. HCA stated that the anterior question as to whether a contract includes a particular express term is governed by the lex fori, not by the proper law of the contract. The HCA held that the provision in the ticket was not a term in the contract, rather it was a provision one party sought unilaterally to add after the contract was made. b) Second ground: forum non conveniens (clearly inappropriate forum) i.e. that the local proceedings are oppressive (seriously and unfairly burdensome, prejudicial or damaging) or vexatious (productive of serious and unjustified trouble and harassment). The D argued that the court in the exercise of its inherent power should decline to exercise that jurisdiction. The HCA determined that the D in this case failed to demonstrate (the onus being on the D) that NSW was clearly an inappropriate forum (the P could not travel to Greece to engage in proceedings). If the D contests the merits of a plaintiff s claim, that constitutes a voluntary submission to the court s jurisdiction. Therefore, the court here had jurisdiction to hear the claim. - The case settled before it went to trial on terms unfavourable to Dr Fay. - This was due to a clause in the contract which stated that the maximum liability of the carrier was $5, The D had no assets in NSW, Australia or New Zealand. - A judgment of the NSWSC given in exercise of extra-territorial jurisdiction deprives any judgment of that court to international recognition i.e. the judgment is not enforceable because a Greek court didn t exercise jurisdiction in the international sense and the NSWSC lacked international jurisdiction competence. A death at sea *Venter v. Ilona MY [2012] NSWSC 1029 Principles: - Applying settled principles, a permanent stay of proceedings may be granted where proceedings in NSW are commenced in breach of an exclusive foreign jurisdiction clause 10

11 - Whether an exclusive foreign jurisdiction clause is incorporated as a term of contract governed by foreign law is a question to be determined by the lex fori and not by the proper law of contract as such - Ship s chief engineer killed when hoist malfunctioned. His wife was the ship s chief steward. - Wife brought two tort claims against the owners of the ship as a result of a maritime tort committed on an Australian registered ship just within or outside the limits of the territorial sea of Thailand: 1. Compensation to relatives claim 2. Psychiatric injury - There was no problem of personal jurisdiction because the Illona was owned by a NSW company. - Critical issue was the location of the ship when the accident happened According to the United Nations Convention on the Law of the Sea, the territorial sea of a coastal state extends 12nm. There was a possibility it was a boat length outside or within the territorial sea of Thailand when the accident occurred. If the tort was committed within the territorial sea of Thailand, the choice of law would be Thailand. If the tort was committed on the high seas, for choice of law purposes, the place of the tort would be the place of registration of the ship - i.e. NSW. In the law of Thailand, there is a 1 year for the bringing of a fatal accident claim, respectively. In NSW, there is a 3-year limitation period. - The wife of the deceased commenced the litigation within 3 years but after 1 year. - The owners cross-claimed against the German manufacturer for 1. Damages for breach of contract There was a contract between the owners of the Illona and the German manufacturer for the manufacture and supply of the helicopter hanger door The contract included German law as the proper law (express clause) and it included an exclusive German jurisdiction clause. 2. Contribution as a concurrent tortfeasor, as the designer and manufacturer of the allegedly defective hoist. - The case between the wife and Illona settled. - The German manufacturer applied for a permanent stay of the proceedings being brought by the ship owners on account of there being an exclusive German jurisdiction clause - Alternatively, the German manufacturer sought a permanent stay of proceedings on the ground that NSW was a clearly inappropriate forum. Issues: choice of law; substance and procedure - Wife s claim: Where was the ship situated when the accident occurred? 11

12 If the place of the tort was Thailand, the court would be required to determine whether limitation provisions were procedural or substantive. - Manufacturer s claim: Did the contract include the exclusive German jurisdiction clause? Outcome: - In respect of the court s discretionary non-exercise of jurisdiction in Australian law, the Australian judge approaches its decision with a strong bias in favour to giving effect to what the parties have agreed e.g. if the parties to a commercial contract have agreed upon exclusive German jurisdiction, the parties are to be Outcome to that agreement. - In German law, unless the terms and conditions of trading were attached to the conditions of trading, the contract does not include that provision i.e. they require the physical annexure of the terms and conditions of trading with the quotation. - This had not occurred. Therefore, under German law, there was no exclusive jurisdiction clause. - However, the NSWSC said that the anterior question as to whether a contract includes a particular express term (consensus ad idem) was not a matter to be determined by German law, it was a procedural matter to be determined by NSW as the lex fori (Oceanic Sun Line Special Shopping Co v Fay). - In NSW, as there was no formal requirement for physical attachment in order for the terms of trading to be a part of the contract, the terms and conditions were incorporated into the contract, and the exclusive jurisdiction clause applied - NSWSC granted a permanent stay in favour of the German manufacturers 12

13 2. Personal Jurisdiction Personal jurisdiction is concerned with jurisdiction over the person of a particular defendant In private international law, as in other contexts, the term jurisdiction should be used with precision There are several different meanings: - NSW as a geographical area as a jurisdiction This is not the meaning prescribed in PIL - Subject matter jurisdiction e.g. proceedings for dissolution of marriage (Family Court of Australia), bankruptcy proceedings. We are not concerned with this either. - Jurisdiction concerning monetary limits e.g. courts such as the District Court of NSW have very exact monetary limits on the claims which the court may entertain. In this topic, the term jurisdiction is used in the sense of the power or authority of a court over a particular defendant i.e. the amenability of a defendant to the court's writ and the geographical reach of that writ or what may be described as personal jurisdiction. Our concern/focus is with the NSW Supreme Court. - Whether the D, as a person, is subject to the jurisdiction of the NSWSC the power or authority of the NSWSC Overview The aim of this topic is to introduce the concept of personal jurisdiction, to outline the bases of common law jurisdiction (defendant's presence, voluntary submission) and the statutory bases of extra-territorial jurisdiction (Uniform Civil Procedure Rules 2005 (NSW) Part 11; Service and Execution of Process Act 1992 (Com) s 15(1); Trans-Tasman Proceedings Act 2010 (Com) s 9(1)) with particular reference to the Supreme Court of New South Wales. Process 1. Consider whether there is basis for jurisdiction over the D - Does the court have common law jurisdiction? - If not, is there statutory jurisdiction? Statutory authority is required for the service of originating process outside the geographical region of NSW 2. Are there discretionary grounds on which the Court may decline to exercise jurisdiction? (A) COMMON LAW Two bases of CL jurisdiction in NSW 13

14 1. The presence of the defendant within the territory of the court - i.e. New South Wales in the case of the Supreme Court of New South Wales, Australia in the case of the Federal Court of Australia or the High Court of Australia 2. The defendant s voluntary submission to NSW jurisdiction. Note: - The defendant's ownership of assets in the territory of the court (the forum) is not a basis of common law jurisdiction. - Likewise, the fact that a tort was committed in the forum or that the place of breach of a contract was the forum or that the proper law of a contract is the lex fori is not a basis of common law jurisdiction. (i) Territorial jurisdiction based on defendant s presence Basic rule: person against whom claim is made (generally the defendant) must be amenable to service of court s originating process (statement of claim, summons etc.): (1) Within the territorial jurisdiction of the court If a defendant is served with originating process within NSW, they are subject to the common law jurisdiction of the court (2) Elsewhere in Australia OR (3) Outside Australia Limitations/rules relating to (2) and (3) Individuals Common law jurisdiction clearly is established if the defendant is served with the originating process while present in the forum. In this regard, the fleeting or transient presence of the defendant in the forum at the time of service of the originating process is sufficient to establish common law jurisdiction even although the defendant and the subject matter of the proceedings have no connection with the forum: HRH Maharanee of Baroda v. Wildenstein A defendant 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 the defendant later enters the forum and is served there with the originating process: Laurie v. Carroll However, a defendant who was present in the forum at the time of issue of the originating process but departed the forum before service of the originating process is subject to the common law jurisdiction of the court if he or she knew of the issue of the originating process or departed the forum with intent to evade service of the originating process: Joye v. Sheahan. *Gosper v. Sawyer (1985) 160 CLR

15 - An employee in New South Wales applied to the Industrial Commission of New South Wales for orders under the Industrial Arbitration Act 1940 (NSW), s 88F(1), to avoid or vary provisions of a superannuation fund of which he was a member. - Membership of the fund was a condition of his employment. - It was administered by trustees all of whom are ordinarily resident in Victoria. - The registrar ordered that process be served on the trustees in Melbourne. They entered a conditional appearance and moved to have service of process set aside. Issue: - Whether the process of the Commission could validly be served on the trustees in Victoria by virtue of the law of New South Wales Held: - 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 [T]he ordinary basis of territorial jurisdiction is the personal presence of the defendant within the court's territory *Laurie v. Carroll (1958) 98 CLR 310 Principle: - The presence of the D in the territory of the court on a date before the issue of the originating process is not a basis of CL jurisdiction - However, it is a basis of CL jurisdiction that the D was present in the territory of the court on the date of issue of the originating process but left the territory of the court before personal service, knowing of the issue of the originating process or the evade personal service - Case on evading jurisdiction. - The D, Laurie, was a theatrical entrepreneur who lived in England. He came to Australia for a short period because he had entered into a contract with the P, Carrol, who was also a theatrical entrepreneur where they were to promote an Australian tour of Margo Fontaine. - A dispute arose between them. Laurie went and obtained advice from a solicitor in Melbourne. The advice was that an originating process is to be issued very shortly against you, and if you do not wish to be subject to jurisdiction to the VSC, you should make a hasty departure. Nothing unethical about giving this advice - The D took that advice and he crossed the Murray River into NSW, stayed in NSW for a very short time and then returned to his home in England. There are two dates we need to focus on in June 1957: 13 June 1957: Laurie left Victoria on this date. 14 June 1957: The plaintiff filed the OP in the VSC and hence the proceedings commenced. Issue: - Whether a D, in proceedings in the VSC for breach of contract, was subject to the CL jurisdiction of the VSC 15

16 HeldS: - Most obvious way in which the D could be subject to jurisdiction is service while the D was in Vic, but this did not happen - Just because the D was present in Vic when the matter arose is not a basis for CL jurisdiction - As the D had left Vic before the issue of the OP, he was not amenable to the CL jurisdiction of the VSC - If the above dates were reversed, and D had left after the OP was filed, but BEFORE there was a chance to serve on him, there will be jurisdiction - If the D had left the jurisdiction knowing that it had been issued, or even if they did not know, they will be taken has having left for the purpose of evading service - The D must have been present in the jurisdiction when the proceedings commenced/documents were filed *Joye v. Sheahan (1996) 62 FCR Dec 1994: OP filed in FCA. - On that date, D was present in Australia. However, it proved impossible for the P to serve the OP on the D Dec 1994: D left Australia. He was well aware that the OP had been issued, but left with the intent of evading service. Issue: - Was the D subject to the CL jurisdiction of the FCA? Outcome: - The D, wherever he may be, was subject to the CL jurisdiction of the FCA. - Court could make an order for substituted service *HRH Maharanee of Baroda v. Wildenstein [1972] 2 QB 283 Principle: - Service of the OP on the D during a fleeting visit to the forum is sufficient to establish CL jurisdiction - However, under the forum non conveniens principle, the court may decline to exercise jurisdiction if the D demonstrates that the continuous of the proceedings in the forum would constitute an injustice to the D (i.e. that the proceedings are oppressive or vexatious to the D) and that a stay of proceedings would not constitute an injustice to the P - Not oppressive or vexatious to serve OP on a D while he is on a visit to the country - HRH Maharanee of Baroda was an Indian princess who resided in France. Daniel Wildenstein was a famous art dealer. - Sale of an artwork in France by Wildenstein to the princess. She brings the artwork to England for appraisal. - Was told that the artwork was a copy; the value is much less than what she paid. - Princess commenced proceedings in English High Court 16

17 - Problem of personal jurisdiction Wildenstein in France. - D also raced horses. He would come to England 1 day a year to attend the Ascot races. - Princess had to wait 9 months to serve OP on him. D was served at the racecourse. Issue: - Was the D subject to the CL jurisdiction of the English High Court Outcome: - Yes - If a D is served while within the territory of the court, the D is subject to the Court s jurisdiction, even if their presence is fleeting or transient. This is the case even if the D has no other connection with the territory. Corporations A defendant corporation will be present in the forum for the purpose of common law jurisdiction if the corporation carries on business in the forum at some fixed and definite place and the business has been carried on for a sufficiently substantial period: National Commercial Bank v. Wimborne *National Commercial Bank v. Wimborne (1979) 11 NSWLR 156 Principle: - A foreign person or corporation is not subject to the jurisdiction of the NSWSC unless he or it is present in NSW or has voluntarily submitted or waived the right to object to the jurisdiction - A corporation is present in a jurisdiction if it carries on a business there - Common law criteria for carrying on a business (Holland J) 1. The company is represented in the forum by an agent who has authority to make binding contracts with persons in the place; 2. The business is conducted at some fixed and definite place in the forum; or 3. The business has been conducted in the forum for a sufficiently substantial period. - NCB incorporated under Saudi Arabian law - No office in NSW but arrangement with local Bank to conduct their business (e.g. collecting the proceeds of bills of exchange from NSW importers and remitting the proceedings back to NCB, establishing letters of credit etc.) - It was a correspondent bank, so it could not enter into binding contracts for NCB. Issue: - Whether NCB was present/carrying on business in NSW and therefore subject to common law jurisdiction of NSWSC for abuse of legal process in Switzerland Outcome: - At common law, a company is considered to be present in a place and within the common law jurisdiction of its courts if it carries on business there. - It was a correspondent bank it could not enter into binding contracts for NCB. 17

18 - Appointing a solicitor to commence or defend proceedings in the forum is NOT constituted as presence in the forum. - 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 office expenses) (ii) Jurisdiction based on defendant s submission Voluntary submission = indication of willingness to be bound by the court s decision What constitutes a voluntary submission? A defendant makes a voluntary submission to the jurisdiction of the court if the defendant takes a step in proceedings which in all the circumstances amounts to a recognition of the court's jurisdiction in respect of the claim : The Messiniaki Tolmi A voluntary submission may take several forms, e.g.: 1. The filing of an unconditional appearance in the proceedings (Paramasivam v. Sabanathan) Paramasivam v. Sabanathan [2013] NSWSC Proceedings in NSWSC for the tort of defamation. The place of the defamation was Sri Lanka. - Three of the named Ds were not actually served with the OP of the NSWSC, but they were residents of Sri Lanka. - They filed an appearance of the proceedings in NSW. Outcome: - The filing of the appearance constituted a waiver of any objection to failure to properly serve OP, therefore they voluntarily submitted to the jurisdiction of the court. 2. An express agreement to submit to the court's jurisdiction (Dunbee v. Gilman & Co (Australia)) The agreement must be express. If there is an agreement, it indicates there is a contract between the parties. If there is express agreement to submit to NSW jurisdiction it will amount to voluntary submission. NOTE: If voluntary submission to the jurisdiction of the Supreme Court of New South Wales takes the form of an express agreement to submit, this does not dispense with the requirement for service of the originating process on the defendant. 18

19 An agreement will not be implied from other terms in the contract between the parties. If there is submission by agreement, that agreement must be express. An agreement that the law of a particular country is the proper law of a contract does NOT constitute a voluntary submission to the courts of that country (Dunbee v. Gilman & Co (Australia)). Dunbee v. Gilman & Co (Australia) (1968) 70 SR (NSW) P English company - D NSW company - Entered into commercial contract; P appointed the D as the P s agent for the distribution of its good in the Asia-Pacific region. - The contract included an express choice of law term this agreement is governed by the laws of England. - The drafter was providing the parties had agreed on English law as the governing/proper law of the contract. Express choice of English law as the proper law of the contract. - A dispute arose and the English party commenced proceedings in the English High Court to recover damages for breach of contract - There was a clear basis of jurisdiction the English equivalent of the UCPR 2005 Sch 6 Para (c) authorizing the service of originating process outside England in a contract case where the contract was governed by English law. - Service on D in NSW pursuant to the English equivalent of the UCPR. - NSW D received advice: - D took no part in proceedings - the English court gave default judgment for P and awarded damages for breach of contract. - The English P sought to enforce the judgment in NSW. They can only do so by reference to NSW private international law. The foreign judgment has no force or effect of its own. It can only be enforced by references to principles of Australian PIL. Foremost, then and now, is that a foreign judgment will not be enforced in NSW unless the foreign court exercised what is known as jurisdiction in the international sense exercise a jurisdiction that is recognised under Australian PIL. Only if foreign court exercised jurisdiction in circumstances which would have constituted common law jurisdiction in NSW Issue: - Did the foreign court exercise jurisdiction in factual circumstances which would have constituted common law jurisdiction in NSW? Outcome: - P argued that the contract has an express choice of law clause 19

20 - Court: this says nothing as to personal jurisdiction an agreement to voluntarily submit to jurisdiction must be express. It will not be implied from an express choice of law clause. - P left with English judgment 3. Arguing the merits of the case without filing an appearance (The Messiniaki Tolmi; Vertzyas v. Singapore Airlines). *The Messiniaki Tolmi [1984] 1 Lloyd s Rep Proceedings in Admiralty Court in England. - The D, a Taiwanese entity, made an application to strike out part of the P s claim and applied at the same time for permanent stay of proceedings on forum non conveniens. Held: - [a person] makes a voluntary submission to the jurisdiction if he takes a step in proceedings which in all the circumstances amounts to a recognition of the Court s jurisdiction in respect of the claim which tis the subject matter of those proceedings (at 270) - An application to strike out a claim is inconsistent with an objection to jurisdiction because it is outing the merits of the P s claim in issue - Application to strike out constitutes voluntary submission - indicating the court has jurisdiction. *Vertzyas v. Singapore Airlines (2000) 50 NSWLR 1: conduct insistent with a protest against jurisdiction Principle: - In order for a party to be treated has 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 - V, a resident of Greece, purchased a return air ticket from Athens to Sydney. - During the course of journey from Athens to Sydney, it was her contention she suffered bodily injury when thrown around the cabin of the aircraft (the aircraft lost and then quickly regained height, and in the process the P was thrown against a locker). - She commenced proceedings in respect of her bodily injury. - P s claim governed by the regime governing liability of air carriers bodily injury and death (Warsaw Convention, now the Montreal Convention) - NSW was not a place in which P could bring her claim against Singapore Airlines (see Article 28 it was not a place where the air carrier has its principal place of 20

21 business, or where the contract of carriage was made). V had to bring it in the place of destination (this was Greece, as she had a return ticket). - V commenced proceedings in NSW. According to case law, an air carrier can waive an objection to jurisdiction. - Through its solicitors, Singapore Airlines filed a defence without filing an appearance and at the same time made an objection to the jurisdiction of the court. - The solicitors also wrote to V and put in issue the merits of her claim - that she hadn t suffered the bodily injury alleged or within the meaning of the Warsaw Convention. Also asked for her to submit to medical examination. Outcome: - Notwithstanding that Singapore Airlines had the clearest possible objection to jurisdiction, they were taken to have voluntary submitted. - It chose to fight the jurisdictional issues and the merits at the same time Objection to jurisdiction An objection to jurisdiction of the Supreme Court of New South Wales in accordance with UCPR r is NOT a voluntary submission to the jurisdiction of that court - An objection to the court s jurisdiction OR the exercise of the jurisdiction = not a voluntary submission *Uniform Civil Procedure Rules 2005 (NSW) Rule Setting aside originating process (1) Defendant can apply for (a) an order setting aside the originating process, (b) an order setting aside the service of the originating process on the defendant (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 Cross-claims and amended claims The filing of an appearance in the proceedings also will be treated as a voluntary submission to any amendment of the original claim which is founded on or directly arises out of the same subject matter as the original claim: Marlborough Harbour Board v. Charter Travel Co. Likewise, the party who has commence proceedings in New South Wales as plaintiff will be regarded as having submitted to the jurisdiction of the court in respect of cross-claims by the defendant arising out of the same subject matter as the plaintiff s claim Marlborough Harbour Board v. Charter Travel Co (1989) 18 NSWLR Russian cruise ship struck rocks off the coast of NZ and sank 21

22 - MHB a NZ statutory authority responsible for the ship at the time of its loss. - Claim made by 82 NSW residents (Joan Dillon the lead plaintiff) against ship owner (Baltic Shipping). Claims from Ps was for personal injury, property damage - Ship owner made contract in NSW so jurisdiction not an issue for them. - BUT compulsory pilot under NZ law is was navigating the ship at the time. - Third party notice is issued by Baltic Shipping against MHB - Baltic Shipping sought indemnity on the basis MHB was another tortfeasor who, if sued, would be liable in respect of the same damage (sought contribution by MHB) - The MHB filed an appearance in the proceedings in NSW - submitted voluntarily to NSW jurisdiction (before Trans-National Proceedings Act 2010). - Ship owner sought to amend claim to include claim for damages for loss of the ship itself Issue: - Whether voluntary submission to original claim extended to amended claim Held (NSWCA): - The NSWCA said the original voluntary submission also constituted a voluntary claim to any amendment to the original claim so long as it arose out of the same subject matter. - Negligent navigation by compulsory pilot exposed the Ps to personal injury and property damage for Ps, as well as the loss of the ship itself (B) SERVICE OUT OF THE JURISDICTION Golden rule: any one is subject to the jurisdiction of the NSWSC if there is a lawful basis for the service of originating process on that person - Must be a statutory basis for service outside jurisdiction (UCPR) (i) General considerations Extra-territorial jurisdiction, in the present context, is the service of originating process outside the forum - e.g. the service of the originating process of the Supreme Court of New South Wales on a defendant in California. At common law, the originating process of the Supreme Court of New South Wales cannot be served outside the state and a statutory basis is required for extra-territorial jurisdiction. Service within Australia If the defendant is outside New South Wales but in another state or territory of Australia, the originating process may be served under s 15(1) Service and Execution of Process Act 1992 (Com). *Service and Execution of Process Act 1992 (Com) 22

23 Sec 15(1) An initiating process in a State may be served in another State McEntee v. Connor (1994) 4 Tas R 18 - Case involved service of the originating process of the Supreme Court of Tasmania on the D in Western Australia in respect of a tort committed in Japan (assault on an aircraft on a runway at a Japanese airport). - Proceedings commenced by a resident of Tas; served OP on D in WA Held: - Fundamental principle from Laurie v Carroll: test for determining whether a person is subject to a court s jurisdiction is whether there is a lawful basis for the serving of the OP - The D was subject to the personal jurisdiction of the Supreme Court of Tasmania because the Service and Execution of Process Act 1992 (Com) s 15(1) provided the legal basis for the service of the originating process in Western Australia Service in New Zealand If the defendant is in New Zealand, the originating process in civil proceedings issued by any Australian federal, state or territory court be served without leave under s 9 (1) Trans-Tasman Proceedings Act 2010 (Com) - Gives effect in gives effect in Australian law to an intergovernmental agreement between Australia and New Zealand and which was proclaimed to commence on 11 October 2013 There is no requirement of any nexus or connection between the proceedings and Australia or any state or territory of Australia. Trans-Tasman Proceedings Act 2010 (Com) Sec 9 (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. Service outside Australia (and New Zealand) If the defendant is outside Australia (and New Zealand) extra-territorial service of the originating process is authorised by the Uniform Civil Procedure Rules 2005 (NSW) Part 11 Schedule 6 paragraph (h). - Need a connection to NSW: e.g. proper law of contract is in NSW, place of tort is NSW 23

24 Part 11 UCPR replaced the Supreme Court Rules 1970 (NSW) Part 10. The new rules made no substantive changes to the equivalent provisions in the old rules. Note: even if there is a basis of jurisdiction (e.g. a foreign court exercised jurisdiction under their equivalent of Part 11) not useful to have that foreign judgment enforced if there are no assets of the D in Australia and NZ. General considerations Prior leave of the court is not required for the service of originating process outside Australia: Agar v. Hyde. - However, if the defendant does not appear, the plaintiff may not proceed (i.e. to default judgment) except with the leave of the court: r 11.8AA. - The granting of leave to proceed requires that the plaintiff demonstrate that one or more of the paragraphs of Schedule 6 applies: Agar v. Hyde. A defendant who has been served with originating process outside Australia may object to the existence or exercise of the jurisdiction of the court - E.g. the defendant may seek to demonstrate that the Supreme Court of New South Wales is an inappropriate forum for the trial of the proceedings: see r 12.11; Renault v. Zhang. The court, in its discretion, also may set aside service of the originating process outside Australia where the plaintiff s claim has insufficient prospects of success: Agar v. Hyde. Where originating process may be served outside Australia under Part 11, the court may order substituted service on the defendant within or outside New South Wales if personal service is impracticable: ASIC v. Sweeney (No 2) *Uniform Civil Procedure Rules 2005 (NSW) Part 11 Service of documents outside Australia and service of external process Rule 11.1 Application of Part (1) This Part applies to proceedings in the Supreme Court Rule Division does not apply to service in New Zealand of documents for or in certain trans-tasman proceedings This Division (which contains rules on service outside of Australia) does not apply to service in New Zealand of an originating process for, or of any other document to be served in or for, a proceeding an originating process for which may be served in New Zealand under Division 2 of Part 2 of the Trans-Tasman Proceedings Act 2010 of the Commonwealth. Rule 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. Rule 11.5 When allowed with leave 24