LAWS2018: PRIVATE INTERNATIONAL LAW A. Professor Ross Anderson

Transcription

1 LAWS2018: PRIVATE INTERNATIONAL LAW A Professor Ross Anderson 1

2 CONTENTS TOPIC 1: Scope of Private International Law. 3 TOPIC 2: Personal Jurisdiction... 7 TOPIC 3: Substance and Procedure TOPIC 4: Proof of Foreign Law TOPIC 5: Exclusionary Doctrines 45 TOPIC 6: Choice of Law in Contract TOPIC 7: Choice of Law in Tort.. 76 TOPIC 8: Foreign Judgements

3 TOPIC 1: SCOPE OF PRIVATE INTERNATIONAL LAW Legal problem with some foreign legal element can potentially be in domain of private international law. Concerned with countries, which for the purposes of PIL, are geographical areas with their own legal systems and COL rules, which is different to a country in terms of a sovereign state. New Caledonia is NOT a country doesn t have its own legal system, overseas operation of French law FINAL EXAM: State registration of foreign judgements, NZ judgement pages beginning heading B NOT IN EXAM. Only s11 of the Foreign Judgements Act is testable (only one concerned with enforcement of Foreign judgements under CL) i) Transnational legal problems 2 introductory case studies A Greek islands cruise Oceanic Sun Line Special Shipping Co v. Fay (1988) 165 CLR 197 (Materials, p 132) Booked Greek cruise through NSW travel agent Agent received exchange order on behalf of client receipt for cost of cruise, details of cruise, location of cabin etc o Clause This will be exchanged for ticket when passenger boards ship in Greece Entirely in Greek territorial waters Ship Stella Oceanis Greek ship registered in Greek (Greek flag ship) Cruise operated by Greek Corp (Oceanic Sunline), owned ship too When F boarded ship, exchanged order for a ticket Accident during cruise in Greek territorial waters - injury while shooting clay targets (surgical and medical treatment in Athens, then repatriated to Aus) o Further surgery in NSW, then went home to QLD F took tort action against cruise company in NSW SC (poor decision to confine to 1 claim was concurrent liability in tort and contract) Jurisdictional issues Common law jurisdiction in NSW SC is based on ONLY 2 basis: 1) Presence of D in NSW territory; OR 2) D s voluntary submission to juris of NSW Neither of which were possibilities in this case. No connection required between the plaintiff & NSW. Here, statutory basis of jurisdiction was under UCPR which allowed service in juris outside Aus Schedule 6 para (d) in tort case, originating process can be served outside aus if the tort was committed in NSW didn t apply obviously Schedule 6 para (e) Sufficient for originating process to be served outside Aus if they are proceedings to recover for damage suffered in NSW, regardless of where the tort is committed. o Suffered damage compensable in tort proceedings in NSW o Here some damage suffered in NSW medical and hospital expenses occurred once back in Aus NB court always has discretion to reject jurisdiction. D applied for a permanent stay of the proceedings on the basis of 2 discretionary grounds: (a) Term of the ticket granting exclusive jurisdiction to greek courts o Ticket contained statement that any claim against carrier, Athens Greece courts had exclusive jurisdiction, clear beyond doubt that this was the only place for litigation o F argued that this wasn t part of the K of carriage 3

4 Issue then which legal system decides whether a contract contains a particular express term? o HCA in no doubt that applying NSW law as law of forum, proper law of the contract of carriage was greek law o The provision in the ticket was hence NOT a law of the contract, was a provision sought to be added by a party unilaterally AFTER the making of the contract o Therefore this did not preclude the proceedings from going ahead (b) Forum non conveniens (clearly inappropriate forum) argued by the D as a second ground to rely on to refuse jurisdiction o HCA held that failed to demonstrate how this was so o Seriously injured passenger, could not travel to Greece, possibility that NSW was clearly inappropriate forum was remote o Court refused to stay the proceedings on this ground Case settled. Another provision in ticket set max liability to $5k USD therefore this was final offer of settlement Had it gone to trial COL issue would have been where was the tort committed? Greece would clearly have been identified as the place of the court (from the test in Distillers case for ALL torts). Potential application of K law (wasn t litigated) Although some other legal systems are relevant in matters of K, can be quite dogmatic and say that liability in K (breach, performance and discharge) are governed by the legal system which is the proper law of the K, which here is greek law therefore in this respect all roads would have led to Greece, which would have determined issues of liability. A death at sea Venter v. Ilona MY [2012] NSWSC 1029 (Supplementary Materials) Fatal accident on Aus registered ship, off coast of Thailand Precisely where it occurred (off the coast of Thailand) when the accident occurred was an issue matter of minutes o Tort on ship in territorial waters, place of tort for COL purposes = territory (Thailand) o Tort on high seas, place of tort for COL purposes = place of registration ship Aus PIL COL rule for tort = place of the tort (lex loci delicti) COL rule for matters of procedure = law of the forum (Lex fori) o Here, litigate in NSWSC procedural matters = NSW law o Includes laws of evidence o If foreign law is relevant, it is relevant only with respect to matters of substance V brought tort proceedings in NSW for her husbands death under Compensation to Relatives Act, and on their own behalf in respect of her psychiatric injury. She was a crew of the ship and saw husband crushed to death on the ship. Different limitation periods in NSW and Thai law: o Thailand 1y for bringing fatal accident period (beyond this time) o NSW 3y limitation period (V was within this) Modern caselaw would have determined that limitation law is substantive. Owners of the ship made a 3 rd party claim against 3 rd party german manufacturer of a door that fell and crushed V on the basis they were another tortfeasor (under NSW legislation) Issues of where the ship was when the accident occurred fell away Case SETTLED as between V and the ship owners however the case as between the manufacturers and the shipowners stayed Contract for manufacture + supply of helicopter hanger door 4

5 o Express choice of German law as proper law of K o Also incl exclusive German jurisdiction clause Aus judge approaches this with a strong bias in favour of giving effect to what parties have agreed this is a starting point parties would be held to this agreement Problem: anterior issue, whether the contract included the exclusive german jurisdiction clause o In German law, unless T&C of trading were physically attached to the contract, then they were not part of the contract o Therefore under german law, the exclusive german juris was NOT part of the K NSWSC held that whether or not the clause was part of the contract was an anterior question, that was NOT to be determined according to German law, but rather NSW law as the lex fori. NSW law no formal requirement of physical attachment requiring T&Cs of trading to be attached, therefore the clause WAS attached ii) Some concepts of private international law Private international law is part of local or municipal law in every developed legal system. Country in the context of private international law = a geographical area (not necessarily a sovereign state in the public international law sense) with its own legal system (e.g. NSW) Forum/lex fori: place/law of the place where the court is sitting. International, federal (international) & constitutional considerations Aus states & territories are separate countries in the private international law sense, at least with respect to matters, such as tort, contract and property, within their legislative competence. full faith and credit; choice of law in federal jurisdiction; the cross- vesting scheme. iii) Main issues of private international law Choice of law, personal jurisdiction and the recognition and enforcement of foreign judgments: the three persistent issues of private international law. iv) 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, they 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. 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. v) Some common law choice of law rules within the scope of this course: Procedural issues are governed by the lex fori (law of the forum) If foreign law is relevant, it is relevant only with respect to matters of substance I.e. COL rules are only in relation to substantive law 5

6 Controversial areas: limitation provisions and provisions related to damages matter of debate as to whether these are areas of substantive or procedural law Liability in tort is governed by the lex loci delicti (the law of the place where the tort was committed). 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 e.g. in a case involving liability in tort, the lex causae is the lex loci delicti. 6

7 TOPIC 2: PERSONAL JURISDICTION Jurisdiction over the person of a particular defendant. Rules which determine whether person is subject to power or authority of a court. First look to common law jurisdiction. Process 1) Determine whether there is a basis of juris 2) Is there a ground upon which court may decline to exercise juris? A) COMMON LAW Based on either 1) presence of defendant in NSW of 2) voluntary submission to jurisdiction ONLY. i) Territorial jurisdiction based on D s presence Ordinary basis of territorial jurisdiction is personal presence of D within the court s territory (Gosper v Sawyer) Mere fleeting or transient presence at a particular point may be a sufficient basis of CL juris (BROAD) (HRH Maharanee of Baroda v Wildenstein) E.g. passenger in transit in NSW is enough A D who is NOT present in the forum at the time of the originating process is NOT subject to CL jurisdiction of the court unless they later enter the forum and are served with originating process (Laurie v Carroll) Presence before the commencement of proceedings is NOT a basis of jurisdiction (Laurie v Carroll), However (per Laurie dictum and affirmed in Joye v Sheahan): If D was present at the date of commencement of proceedings, but left before service of originating process, either 1) with knowledge that it had been served or 2) with the intent to evade service, then this = sufficient for CL jurisdiction Individuals Laurie v Carroll D Laurie, theatrical entrepreneur (promoter) lived in England Came to Aus, had entered K with C, L and C to promote Aus tour of ballerina L got advice from solicitor in Melb who advised that if didn t want to be subject to juris in Victoria then should depart Vic as orig process going to be served 13 th June left Vic (to NSW, then went to England) o 14 th June P filed originating process in Sup Crt Vic o HCA: issue whether L subject to CL juris of VSC HCA: NOT within jurisdiction VICSC had left the territory of the court before commencement of proceedings, therefore was not within jurisdiction. Present the day before was not enough. Hence court was wrong to make order for substituted service o TO make such an order requires personal jurisdiction DICTUM (of great authority) if D was present within territory when proceedings commenced but left before service they would be treated as within if they knew or had intent to evade service 7

8 Joye v Sheahan Full Fed Crt Illustrates situations in mind of dictum of Laurie. Full Fed Crt juris therefore referring to Aus as geographical area 6 th December: date of issue of summons, Joye was present in Aus o However all reas steps for service taken and was impossible 13 th December: Joye left Aus ISSUE: whether order for substituted service of originating process could be made? (They didn t know where J was) HELD: Mr J was present in Aus when proceedings commenced, on the evidence he DID have knowledge of this and possibly also intent to evade personal service Squarely within dictum of Laurie Therefore personal juris made out order for substituted service on him + his solicitors + accountants made (likely to bring to his attention) HRH Maharanee of Baroda v Wildenstein Fleeting/ transient presence enough Princess (P) purchased painting in France from D (both were residents of France) Represented as a work of a name artist (paid lots for it) o Until this point from perspective of P sale made in france, K gov by French law Painting brought to England to be appraised copy (not an original worth a lot less) Princess brought proceedings in Eng HC sought rescission of the K and return of the purchase price Originating process served 9 months later on W at the race course (only came to Eng one day each year) HELD: This WAS a sufficient basis of CL jurisdiction fleeting presence (1 day of the year) is enough Even though neither P or D or subject matter of proceedings have connection with Eng Then must consider if there is a discretion to decline jurisdiction W applied for permanent stay on basis of forum non conveniens o D had to est. that proceedings were vexatious or oppressive o Will NOT be so if P has legitimate juridical reason for bringing proceedings in Eng o P could establish this the relative delay in the French legal system made valid reason to bring in Eng Therefore stay of proceedings was NOT granted. **NB: Real reason she probably brought in Eng: Rules of PIL (not explored in case) o Matters of procedure governed by law of forum o Even though matters of substance of K still proper law of K o Procedural advantage available in Eng law (not French) rescission remedy was NOT available under French law o This would have been a better juridical reason (form of remedy) Gosper v Sawyer Jurisdiction based on D s PRESENCE (territorial) Mason and Deane JJ: 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 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 or other process directed to the D 8

9 Corporations Same CL principles apply to corporations as to natural persons. Presence of corporation = if the corporation carries on business (National Commercial Bank v Wimborne), which must have been carried on 1) At a FIXED PLACE of business 2) For a REASONABLE PERIOD of time Foreign corporations cannot do so without being registered under ASIC have to nominate agent for purpose of service of originating process. SO would only have to fall back on CL if corp breaching requirement to be on ASIC register. National Commercial Bank v Wimborne ii) Jurisdiction based on D s submission What constitutes voluntary submission? Submission = Indication of willingness by D to be bound by court s decision (Messinaki) Ways in which party can voluntarily submit to jurisdiction? 1) Filing appearance in proceedings = constintues waiver of any objection to NSW jurisdiction (e.g. Paramasivam v Sabnathan) This also = a voluntary submission to any amendments to the initial claim, provided that it is on the same subect matter (Marlborough Harbour Board v Charter Travel) 2) Submission by agreement - This must be an express agreement (Dunbee v Gilman) In a K, a choice of proper law clause is NOT sufficient, must be an express choice of jurisdiction clause 3) If the D puts in issue/ raises the merits of the D s claim this is an acknowledgement that the court has juris. Should rather only make an objection to jurisdiction if there is one (The Messiniaki Tolmi; Vertzyas) Paramasivam v Sabnathan Defamation place of tort = Sri Lanka 3 of the Ds were not served with orig process (defect), residents of sri lanka They filed an appearance in NSW This was amount to constitute a waiver of any objection and = voluntary submission to jurisdiction of court Dunbee v Gilman & Co P English co, D was NSW co Agency K for distribution of goods Term which said this agreement is governed by the laws of England No doubt that English law proper law of K by express choice Dispute P commenced proceedings in EngHC for breach of K Clear juris for service of originating process on D in NSW UCPR 2005 Sch 6, para (c), authorised service outside England where K was governed by Eng law o Equiv provision in NSW: sch 6, para C, (iii) (extraterritorial jurisdiction) No doubt that Eng court had juris under Eng law 9

10 What should the D do? Advised to do nothing o D said had no assets and no commercial reputation that would be adversely affected in Eng o Advised to do nothing in response to Eng proceedings Eng HC gave judgement in favour of P in default of D s appearance damages for breach of K P then sought to enforce this Eng judgement in NSW court o Can only do so in relation to NSW rules of PIL o From perspective of PIL not material that Eng ex jurisdiction in accordance with its law o Rather, whether Eng law exercised a juris that is recognised under Aus PIL rules o This will only be so if the foreign court ex juris in the international sense HELD: The foreign court must have ex a juris ex in Aus PIL i.e. the foreing court must have ex juris in circumstances that constitute CL juris as understood in Aus PIL. Translated into a NSW context, did the Eng court ex juris that = CL juris here? ASK: was the D present in Eng when the originating process was served? NO OR did the D voluntarily submit to Eng juris? NO o Even though the K says that K is governed by Eng law o This was a choice of law and NOT jurisdiction o Submission to juris must be express choice of law not enough Therefore, the Eng court did NOT have juris as understood in Aus PIL sense, i.e. wouldn t have CL under NSW law, therefore the foreign decision was NOT enforced Unenforceable in NSW P should have brought the proceedings in NSW claim would ve been different can t bring again here, the cause of action has merged into the judgement (all the P then has is the Eng judgement, which is unenforceable) The Messinaki Tolmi D made application to strike out part of P s SOC at the same time as application for stay of proceedings on grounds of forum non conveniens. Application for striking out = acknowledged the court s jurisdiction. Vertzyas v Singapore Airlines Bodily injury mid flight V commenced proceedings against Sing Warsaw Convention basis of jurisdiction for claim against air carrier: under this, NSW was NOT a place that V could bring claim against Sing o Could do so in place of destination o In return ticket, this is place of ultimate destination here = Greece I.e. lacked juris under Warsaw convention However, caselaw indicates air carrier can waive juris to air carrier Sing filed a defence WITHOUT filing an appearance, at the same time as objecting to the jurisdiction of the court o At the same time, solicitors wrote to V putting in issue the merits of her claim o Questioning her injury and not that within the meaning of the convention o Requesting she submit to a medical claim HELD: If have an objection to jurisdiction, this is waived if put the merits of the P s case in issue. Therefore there was JURIS here, even though had clear grounds to object. Objection to jurisdiction Distinguish between the court lacking jurisdiction (can make objection on these grounds), and a request for the court to exercise discretion to not exercise jurisdiction. 10

11 Objection not to exercise juris may = voluntary submission, as this impliedly acknowledges there IS juris (under old caselaw) Uniform Civil Procedure Rules 2005 (NSW) r12.11 D can object to jurisdiction of court both the existence and the exercise can be safely objected to This will NOT amount to voluntary submission Cross-claims and amended claims (voluntary submission by P and D) P commencing claim in NSW voluntarily submits to any cross claim, so long as in relation to same subject matter. Foreign D voluntarily submitting to NSW juris, e.g. by appearance, will extend to any amendment of the P s claim, so long as within the same subject matter Russian cruise ship sank off NZ coast for two cases below (one is a 3 rd party proceeding) Baltic Shipping v Dillon personal claim Marlborough Harbour Board v Charter Travel Co claim for contribution from MHB Dillon NSW resident brining proceedings against ship owner for sinking of Russian cruise ship in NZ (Baltic Shipping v Dillon) o Claim for psychiatric injury, loss of property Case gov by NSW law unimpeded by NSW compensation scheme Baltic Shipping voluntarily submitted to personal juris They commenced 3 rd party proceedings against Marlborough Harbour Board Sought indemnity on the basis that Malborough were another tortfeasor liable for same damage claim for contribution o They were responsible for the pilot as their employee MHB filed an appearance in NSW court The Russian shipowner then sought toa mend their 3 rd party claim to sue for damages for loss of the ship (i.e. MHB sunk their ship) o MHB argued that is not what they voluntarily submitted to NSWCA: Original voluntary submission was also one to an amendment to the original claim, so long as it concerned the same subject matter Subject matter: negligent operation of the ship resulting in the loss of the ship Therefore same subject matter, and MHB had voluntarily submitted to this claim B) SERVICE OUT OF THE JURISDICTION Service can only be operative outside juris with statutory authority Word of caution: where extraterritorial jurisdiction, anterior question is whether there are assets of the D in the juris to execute the judgement. If no local (NSW) assets proceedings are futile because no other country will enforce exercise of extraterritorial juris under pt 11 UCPR. i) Service within Australia Service and Execution of Process Act 1992 (Com) s15(1) Initiating process may be served in ANY part of Australia. (1) An initiating process issued in a State may be served in another State. 11

12 (2) Service on an individual must be effected in the same way as service of such an initiating process in the place of issue. (3) Service on a company or a registered body must be effected in accordance with section 9. (4) Service on any other body corporate must be effected in accordance with section 10. (5) Service on a body politic (for example, the Commonwealth or a State) must be effected in the same way in which process of the Supreme Court of the State in which service is to be effected may be served on the body politic. This section breaks down territorial boundaries. Australia becomes a single territorial area for the purpose of service of documents. Leave NOT required. This act applies fundamental principles of juris McEntee v Connor If a D in WA could lawfully be served under Tas law, then under the Act, then the person would be subject to Tas jurisdiction. ii) Service in NZ Service of originating process of Aus court authorised in NZ under Trans-Tasman Proceedings Act, leave not required. Trans-Tasman Proceedings Act 2010 (Com) s9(1) Service of Initiating documents in NZ (1) An initiating document issued by an Australian court or tribunal that relates to the proceeding may be served in New Zealand under this Part. (2) However, the document must be served in New Zealand in the same way that the document is required or permitted, under the procedural rules of the Australian court or tribunal, to be served in the place of issue. Note: For service of the initiating document in New Zealand under this Part, it is not necessary for the Australian court or tribunal: (a) to give leave for the service; or (b) to be satisfied that there is a connection between the proceeding and Australia. iii) Service of docs OUTSIDE Aus (and NZ) 1 change to UCPR Pt 11 CHANGES TO UCPR PT 11: *NB: Part 11 UCPR has changed Service of docs outside Australia updated (ones in sup materials out of date) however note changes are essentially cosmetic, no substantive change. THEREFORE REFER TO THE ONE THAT IS IN THE COURSE MATERIALS. Sch 6 Para (a) is now para (n): Original basis for service outside jurisdiction same language o Relied on in Distillers v Thompson (its predecessor) Our concern: service outside Aus in tort and contract claims o Para (c) is now para(b) and vice versa o However the particular basis for service outside the juris are the same o Tort (d) tort committed in NSW, and (e) where plaintiff suffered any damage in NSW now in revised rules BOTH combined in para (a) 12

13 However NEW PROVISION Pt 11, Rule 5: permits service of originating process by NSWSC outside Aus with the leave of the court, even in cases that do NOT fall within one of the basis under the paras in sch 6 o This is NEW way of asserting extraterritorial jurisdiction o Requires substantial connection to Aus, Aus is an appropriate forum, and in all circumstances, it should assert o However paras in sch 6 are detailed unlikely that wouldn t fall under these and a judge would still grant under rule 5 o Therefore new rule of little practical importance Broadening of extraterritorial jurisdiction to Australia GENERALLY: o The REVISED rules substitute the Australia as the jurisdiction for anywhere that previously referred to jurisdiction of NSW o i.e. service outside the juris if the tort was committed in Australia (not just NSW) or if the damage was suffered in Aus (not just NSW) o In a sense this is the BROADENING of extraterritorial jurisdiction Carries a little uncertainty to use Australia generally in PIL circumstances as the relevant jurisdiction A contract governed by Australian law present uncertainty, as distinct from governed by the law of a state or territory of Aus o IN one sense there is NO SUCH THING as Aus law (only NSW law or other state) o Distinct differences between K law between states & territories (esp. u statute) Service outside Austr alia not reciprocal: Note that in regards to extraterritorial jurisdiction it is not reciprocal: On NO account would the same juris ex by a foreign court be recognised here I.e. this would NOT amount to exercising jurisdiction in the international sense if it were a foreign court using this discretionary type of jurisdiction And foreign courts would not either as in no court would enforce a judgement given in the exercise of this extraterritorial jurisdiction i.e. if the property was located overseas, an overseas judge would not enforce the judgement, if made exercising this type of jurisdiction Service outside Aus - Substantive rules These rules only apply to NSWSC. UCPR 2005 (NSW) Pt 11 - r 11.1, 11.2 (and schedule 6), 11.4, 11.7 Application for a permanent stay of proceedings Rule 7 can apply for permanent stay of proceedings where: 1) Service not authorised by the rules OR 2) Where NSW is a clearly inappropriate forum OR Additionally, 3 rd ground added in CL in Agar v Hyde where P has no reas prospects of success at trial o Now expressly incorporated in revised rules as new Rule 6: proceedings may be permanent stayed if P has insufficient prospects of success Summary: Prior leave of the court is NOT required for service of originating process outside Aus (Agar v Hyde) So long as falls within one of the lettered paras within sch 6 can just do it However - If foreign D doesn t file appearance in response to originating process (i.e. doesn t submit to juris) 13