Topic 1: Introduction

Transcription

1 Topic 1: Introduction Rules of private international law are made for men and women not the other way round and a nice tidy logical perfection can never be achieved - Gray v Formosa [1963]; per Donovan LJ Reading: Mortensen, ch 1 A. SOME CONCEPTS AND ISSUES Private international law comprises the body of principles, rules and policies that indicate how a foreign element in a legal problem or dispute should be dealt with, including the court s jurisdiction to hear cases and its ability to enforce its judgement. o What is the governing law of the transaction? Which court can hear the case? Choice of court can be a crucial strategic decision. Can the transaction be enforced domestically? Country in the context of private international law refers to a geographical area (not necessarily a sovereign state in the public international law sense) with its own system of private law for the purpose of resolving conflicts between legal systems. o Ie, States of Australia; Territories of Australia and the Commonwealth of Australia. NB, there is one common law in Australia. Jurisdiction of courts (and the different meanings of the word): o Whether the local Court (forum) has the power to hear and determine the case, or whether the contacts the case has with another State or country limit or otherwise restrain the forum court s power or willingness to decide the case Does the court have the competence to determine a cross-border dispute? Must or will the court exercise that jurisdiction? o The choice of court is crucial. It is a strategic decision. o Globalisation means that jurisdictional issues are increasingly important, both domestically (between states) and internationally (between countries). However, the cross-vesting regime and High Court decisions emphasizing the single common law of Australia mean that the focus when considering jurisdiction is on international disputes. Applicable law: o What law and rules (both substantive and procedural) will the court apply to determine a cross-border dispute? Whether the court will decide the case in accordance with the law of the forum (lex fori), or in accordance with the law of another State or country. Lex causae: the law of the cause. Recognition and enforcement of judgements (and arbitral awards): o Where the case has proceeded to judgement in the other state or country, must or will a court in one legal system give effect to a judgement given by another court (or arbitral tribunal) in another legal system? o Many international conventions are designed to create uniform substantive laws. o Rules that relate to the service of process are important- if you can t serve process, the court cannot enforce its decision. Statute is particularly important in this area. o Forum non conveniens: An acknowledgment that the court has jurisdiction but for practical reasons (such as the location of witnesses) the court should not hear the case. It is a difficult argument to make. 3

2 B. CASE STUDIES Oceanic Sun Line Special Shipping Co v. Fay [1988] HCA 32 Fay, a resident of Queensland, was a passenger on a Greek ship sailing in Greek waters. He sustained serious injuries on the ship and sued in negligence An issue arose as to when and where the contract was entered into? o Did the NSW court have jurisdiction? o Was the exclusive jurisdiction clause on the ticket part of the contract? o Should the court have refused to exercise jurisdiction on forum non conveniens grounds? The High Court expressly denounced the practice known as forum shopping as undesirable. On the question of forum non conveniens, the High Court opted for principles that were more favourable towards a plaintiff s choice of court than other jurisdictions. o The Australian approach provides more incentives for forum shopping than other Commonwealth Courts (ie, English, Canadian and New Zealand courts) Venter v Ilona MY Ltd [2012] NSWSC 1029; Ilona MY Ltd v MD Engineering Gesellschaft mit bescharänkter Haftung [2012] NSWSC 1029 This case concerned multinational parties and a variety of claims following the accidental death at sea of the chief engineer of a ship crushed by a descending hatch cover. Mrs Venter brought her suit in NSW and the defendant (the owners of the ship) brought a cross-claim against the manufacturer of the hoist. The manufacturer resisted joinder, claiming the benefit of an exclusive jurisdiction clause requiring claims against it to be made in Germany. Rein J: What is the applicable law in relation to the incorporation of terms? What is the effect of the exclusive jurisdiction clause? o In accordance with Australian law, the facts indicate that the exclusive jurisdiction clause was incorporated into contract. Were the reasons against a stay of proceedings strong enough to preclude the defendants being held to bargain? On the facts, strong countervailing reasons had not been established to make it inappropriate to hold the Owners to their bargain. As such, the grounds have been made out for a stay of the proceedings. Was the Supreme Court a clearly inappropriate forum? o The question is not whether there is a more appropriate forum elsewhere, but rather whether this court is a clearly inappropriate forum. On the facts, this forum is not a clearly inappropriate forum. The Owners have not advanced compelling grounds for requiring the case to be heard here rather than in Germany, in accordance with the exclusive jurisdiction clause in the contract. The cross claim should be stayed permanently. 5

3 C. A COURSE ROADMAP; SOURCES OF LAW AND DOCTRINE OF STARE DECISIS International Acts: o Conventions (Hague Conference on Private Law); Trans-Tasman Proceedings o Legislation Service and Execution of Process Act 1992 (Cth); Foreign Judgments Act 1991 (Cth); Foreign Evidence Act (1994) (Cth) and enactments of States and Territories; cross-vesting legislation o Rules of Court and related legislation relating to procedure- UCPR o Common law- court cases are a very significant source of law in this area Binding precedent: o Judge must extract the concept from the statute by interpretation o The decisions of other courts may be relevant but not binding in relation to the meaning of similar legislation, even if the words are similar or identical o The court must both interpret statute and apply the statute to the facts Persuasive authority: o The court generally follows its own previous decisions on legislation unless clearly wrong. However, the High Court is not so constrained if it feels that interpretation is wrong. Stare decisis: The doctrine of precedent. o Private International Law comprises both legislation and common law. There is one common law within Australia. As such, the view of the High Court is decisive. If no High Court decision exists, what is the effect of a decision of an indirect intermediate appellant court? i. Within Australia Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] 230 CLR 89 Farah Constructions (controlled by Farah George Elias, a real estate developer) and Say- Dee (controlled by a businesswomen Sadie Elias (no relation to Mr Elias) and Dalida Dagher), entered into a joint-venture to buy and redevelop a property in Burwood. Say-Dee contributed $225,000, plus stamp duty, while the rest of the $630,000 price was borrowed. Farah submitted a development application to Burwood Council for a combined commercialresidential project, but this was rejected with the council stating that the development would require an amalgamation with adjacent blocks. Mr Elias, his wife Margaret, and teenage daughters Sarah and Jade each bought 1 of the 4 adjacent units totalling $2.06 million, whilst his company bought the other adjacent property for $1.68 million. o Mr Elias gave evidence that he had invited the defendants to join in the purchases of these properties but they declined for financial reasons. Mr Elias offered to buy Say-Dee s interest in the first property. Say-Dee declined and relations deteriorated. Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong Since there is a common law of Australia rather than on each Australian jurisdiction, the same principle applies in relation to non-statutory law. Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407 Gett v Tabet [2009] NSWCA 7

4 ii. Overseas Judgments Cook v Cook (1986) 162 CLR 376 The precedents of other legal systems are not binding and are useful only to the degree of the persuasiveness of their reasoning. o Per Mason, Wilson, Deane and Dawson JJ Union Shipping New Zealand Ltd v Morgan [2002] NSWCA 124 Questions the relevance of non-binding overseas authority where no binding authority exists. The persuasive reasoning in Cook v Cook [1986] applies to reasoning about common law, not statutory construction. o Per Haydon JA 8

5 Topic 2: Personal Jurisdiction Historically, the primary basis of the Court's jurisdiction in an action in personam was service of originating process on a defendant within the jurisdiction The Service and Execution of Process Act 1992 (Cth) extended the area within which service on a defendant may be effected, and there are rules of court relating to substituted service and service outside the jurisdiction. - Mobil Oil Australia Ltd v Victoria [2002] HCA 27; per Gleeson CJ Reading: Mortensen, chs 2 (esp. pp 31-39, 52-79), 4 (esp. pp , ) The term jurisdiction is a generic term used in a variety of senses, some relating to geography, some to persons and procedures, and others to constitutional and judicial structures and powers. It is the authority that a court has to deal with a particular case. o Thus, federal jurisdiction is the authority to adjudicate derived from the Commonwealth Constitution and laws, whereas the inherent jurisdiction, used in relation to such things as the granting of permanent stays for abuse of process, identifies the power of a court to make orders of a particular description. Jurisdiction may be used to describe: o The amenability of a defendant to the court s writ and its geographical reach, or o To identify the subject-matter of those actions entertained by a particular court, or o To locate a particular territory or law area. NB; the rules relating to jurisdiction may be positive/negative, mandatory/discretionary. Jurisdiction in personal actions: o These are actions in which the object is to establish a claim against a person. Jurisdiction is based on the court s personal jurisdiction over the defendant. Such actions include: contract, tort, property right and equitable suits Jurisdiction in rem: o Refers to an exercise of admiralty jurisdiction. In certain circumstances, control over property may be exercised. However, this primarily relates to ships and planes. Subject matter jurisdiction: o The authority of a court to hear cases of a particular type or relating to a particular subject matter. Forum shopping: the practice undertaken by the plaintiff in selecting the best court for which to grant a remedy against the defendant. Although heavily criticised by Spielgman CJ, it is the best practice of lawyers to provide sound advice to their client. 9

6 A. COMMON LAW Australian courts will have jurisdiction if they have both subject matter jurisdiction over the particular claims and defences, and personal jurisdiction over the parties to a dispute. The superior courts of the states and territories have general common law and equitable jurisdiction, whilst the subject matter of other courts (eg the family court) may be limited. In Australian law, the plaintiff s action in commencing proceedings is treated as a submission to the jurisdiction, including to any cross-claim the defendant may raise. o This is limited by the courts subject matter jurisdiction and the courts personal jurisdiction over the defendant. i. Territorial jurisdiction based on defendant's presence: Individuals At common law, a court may only exercise jurisdiction over a defendant where the defendant is present in the forum, or where the defendant submits to the jurisdiction of the forum court. The plaintiff must be able to serve notice on the defendant. This is generally achieved by handing the initiating process to the defendant in person or delivering it to the corporation s office (for a corporate defendant). There is no jurisdiction over a person who has been in the territory of the forum, but who left before initiating process was issued. Through the cross-vesting legislation, Australian courts are able to serve notice outside of their jurisdiction (ie, a NSW Court may serve notice on a person located in Victoria). However, there are constraints on serving notice outside of Australian jurisdiction. A Supreme Court will have power to hear and determine an action when the defendant is physically present in the relevant state or territory, whilst both the Federal Court and High Court will have power to hear and determine an action when the defendant is physically present in some place in Australia. Gosper v Sawyer (1985) 160 CLR 548 Mason and Deane JJ (at 564): The general doctrine of the common law is that, in the absence of a submission to the jurisdiction by a defendant, civil jurisdiction is territorial, that is to say, related to the territory of whose system of government the particular court forms part. A court's power to issue process in an action in personam, where the defendant does not submit to the jurisdiction and where questions of status or succession are not involved, is prima facie exercisable only against those present within the limits of its territory at whatever be the relevant time or times. o A court cannot extend its process and so exercise sovereign power beyond its own territorial limits. Vidyagauri Hiralal v Nitin Hiralal & Ors [2013] NSWSC 984 Re Mustang Marine Australia Services Pty Ltd (in liq) [2013] NSWSC

7 Laurie v Carroll (1958) 98 CLR 310 The case involved a contractual dispute between Lurie (a theatrical agent in London) and Carroll (a theatrical entrepreneur in Melbourne), over profits arising from an Australian tour. Laurie was in Victoria between 11 th 13 th June 1957 and then travelled to Sydney. The writ in the action was issued out of the Supreme Court of Victoria on 14 th June. Laurie had been in negotiations seeking to settle the dispute and was aware that Carroll might sue. Laurie left Australia on 20 th June, without having been served with a writ. Carroll applied on 21 st June for an order allowing substituted service of the writ on Laurie s solicitors in Melbourne. Dixon CJ, Williams and Webb JJ: At the issue of the writ, the defendant may be regarded as falling under the command of the writ as an exercise of jurisdiction. However, it is service of the writ which perfects a defendant s duty to obey its command to appear before the court. Jurisdiction is established when the defendant is served within the forum, even if the defendant subsequently leaves. Jurisdiction is generally not established over a person who is in the forum at the time initiating process is issued but who leaves before it can be served. o But an exception exists with regards to a person who left the place after process was issued but who leaves before it can be served. Here, the court may order substituted service on the defendant as physical service of the initiating process has failed. Jurisdiction is established when the defendant is served within the territorial limits of the forum court. It does not matter that the defendant s presence there is temporary. Even if the defendant is merely in transit through the forum territory, if served with a forum writ, the forum courts would seem to have jurisdiction. Generally, the purpose for which the defendant is inside the territorial borders of the forum is irrelevant, unless the plaintiff tricks, fraudulently entices or physically coerces the defendant inside the borders of the forum territory in order to have the defendant served. o This exception will not apply when the defendant is brought inside the forum s borders through extradition proceedings, or in obedience to a subpoena. Joye v Sheahan (1996) 62 FCR 417 The SA Supreme Court took the view that substituted service may be served where the defendant knew of the writ and intentionally flees with knowledge of its existence or with the intention to evade service. NB, this is not the general prevailing view. Perrett v Robinson [1985] 1 Qd R 83 Robinson had caused injury to the plaintiff in a motor vehicle accident in the NT, where damages for future economic loss were not recoverable. Accordingly, the plaintiff sued in QLD, where full common law damages could be awarded. The plaintiff requested that Robinson travel into that state and there accept service of the writ. Robinson willingly complied. The claim was raised that the parties had conspired to defraud FAI Insurance, the second defendant, and that as such the service of the writ on Robinson should be set aside. o This claim was rejected on the ground that no fraud had been committed. On the facts, FAI had contractually agreed to bear liability for damages awarded in QLD. As such, even if FAI Insurance were the real defendant, it had presence in QLD as it conducted business there and so it was within the jurisdiction of the Supreme Court of QLD. 12

8 Personal service: Uniform Civil Procedure Rules 2005 (NSW) Personal service required only in certain circumstances (1) Any document required or permitted to be served on a person in any proceedings may be personally served, but need not be personally served unless these rules so require or the court so orders. (2) Except as otherwise provided by these rules: (a) any originating process, and any order for examination or garnishee order, in proceedings in the Supreme Court, the Industrial Relations Commission (including the Commission when constituted as the Industrial Court), the Land and Environment Court, the District Court or the Dust Diseases Tribunal must be personally served, and (b) any originating process in the Local Court must be served in one of the following ways: (i) it may be personally served on the defendant, (ii) it may be left, addressed to the defendant, at the defendant s business or residential address, with a person who is apparently of or above the age of 16 years and apparently employed or residing at that address, (iii) if served by the Local Court, it may be sent by post, addressed to the defendant, to the defendant s business or residential address in an envelope marked with a return address (being the address of the Local Court but not so identified), and (c) any order for examination, garnishee order or subpoena for attendance in proceedings in the Local Court must be served in one of the following ways: (i) it may be personally served on the person to whom it is directed, (ii) it may be left, addressed to the person to whom it is directed, at that person s business or residential address, with a person who is apparently of or above the age of 16 years and apparently employed or residing at that address, and (d) any subpoena for production in proceedings in the District Court or the Local Court must be served in one of the following ways: (i) it may be served personally on the person to whom it is directed, (ii) it may be left, addressed to the person to whom it is directed, at that person s business or residential address, with a person who is apparently of or above the age of 16 years and apparently employed or residing at that address, (iii) it may be sent by post, addressed to the person to whom it is directed, to the person s business or residential address in an envelope marked with the return address of the party at whose request the subpoena was issued. (3) If an envelope, posted as referred to in subrule (2) (b) (iii), is returned to the court by the postal authority as having not been delivered to the addressee: (a) service of the document contained in the envelope is taken not to have been effected, and (b) any judgment given or entered on the basis of that service is to be set aside, and the registrar must so advise the party by whom or on whose behalf it was posted. (4) Service of a subpoena in accordance with subrule (2) (c) (ii) or (d) (ii) or (iii) is taken to be personal service for the purposes of rule 33.5 (1). (5) Unless an earlier date is proved, a defendant who enters an appearance is taken to have been personally served with the relevant originating process on the date on which appearance was entered. (6) The provisions of this rule concerning the service of originating processes extend to the service of amended statements of claim if the defendant to be served has not filed either a notice of appearance or notice of defence. 13

9 Uniform Civil Procedure Rules 2005 (NSW) How personal service effected generally (1) Personal service of a document on a person is effected by leaving a copy of the document with the person or, if the person does not accept the copy, by putting the copy down in the person s presence and telling the person the nature of the document. (2) If, by violence or threat of violence, a person attempting service is prevented from approaching another person for the purpose of delivering a document to the other person, the person attempting service may deliver the document to the other person by leaving it as near as practicable to that other person. (3) Service in accordance with subrule (2) is taken to constitute personal service. Substituted Service: Uniform Civil Procedure Rules 2005 (NSW) Substituted and informal service generally (1) If a document that is required or permitted to be served on a person in connection with any proceedings: (a) cannot practicably be served on the person, or (b) cannot practicably be served on the person in the manner provided by law, the court may, by order, direct that, instead of service, such steps be taken as are pecified in the order for the purpose of bringing the document to the notice of the person concerned. (2) An order under this rule may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time. (3) If steps have been taken, otherwise than under an order under this rule, for the purpose of bringing the document to the notice of the person concerned, the court may, by order, direct that the document be taken to have been served on that person on a date specified in the order. (4) Service in accordance with this rule is taken to constitute personal service. Substituted service can be ordered when the plaintiff is unable to effect personal service. Corporations: Uniform Civil Procedure Rules 2005 (NSW) 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, be served on the corporation. A foreign person (individual or corporation) must be present inside the forum s territorial bounds to be properly subject to the jurisdiction of the forum court. 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. o All companies conducting business in Australia are amendable to the jurisdiction of all state and territory courts [s 9 Service and Execution of Process Act 1992 (Cth)] o Foreign corporations are required to register in Australia. 14

10 National Commercial Bank v Wimborne (1979) 11 NSWLR 156 Holland J: A foreign person or corporation is not subject to the jurisdiction of the court in a personal action unless he or it is present in NSW or has voluntarily submitted or waived his right to object to the jurisdiction. The test for presence within the jurisdiction in respect of a body corporate is whether the foreign corporation carries on its business within the territory of NSW. The following indicia may assist the court in determining this question of fact: i. Whether the company is represented in the forum by an agent, who has authority to make binding contracts with persons in the place. ii. Whether the business is carried on at some fixed and definite place in the forum. iii. Whether the business has been conducted in the forum for a sufficiently substantial period of time. On the facts, the appointment of a local bank as correspondent banker for a foreign bank was not sufficient to make the foreign bank present in its jurisdiction. o The bank was carrying on its own business of the bank. It was merely an agent for the foreign corporation. Pan Australia Shipping Pty Ltd v The Ship 'Comandate' (No 2) [2006] FCA 1112 Sunland Waterfront (BVI) Ltd v Prudentia Investments P/L (No 2) [2012] VSC 239 Corporations Act 2001 (Cth) 21 Carrying on business in Australia or a State or Territory (1) A body corporate that has a place of business in Australia, or in a State or Territory, carries on business in Australia, or in that State or Territory, as the case may be. (2) A reference to a body corporate carrying on business in Australia, or in a State or Territory, includes a reference to the body: (a) establishing or using a share transfer office or share registration office in Australia, or in the State or Territory, as the case may be; or (b) administering, managing, or otherwise dealing with, property situated in Australia, or in the State or Territory, as the case may be, as an agent, legal personal representative or trustee, whether by employees or agents or otherwise. (3) Despite subsection (2), a body corporate does not carry on business in Australia, or in a State or Territory, merely because, in Australia, or in the State or Territory, as the case may be, the body: (a) is or becomes a party to a proceeding or effects settlement of a proceeding or of a claim or dispute; or (b) holds meetings of its directors or shareholders or carries on other activities concerning its internal affairs; or (c) maintains a bank account; or (d) effects a sale through an independent contractor; or (e) solicits or procures an order that becomes a binding contract only if the order is accepted outside Australia, or the State or Territory, as the case may be; or (f) creates evidence of a debt, or creates a security interest in property, including PPSA retention of title property of the body; or (g) secures or collects any of its debts or enforces its rights in regard to any securities relating to such debts; or (h) conducts an isolated transaction that is completed within a period of 31 days, not being one of a number of similar transactions repeated from time to time; or (j) invests any of its funds or holds any property. 15

11 Corporations Act 2001 (Cth) 109X Service of documents (1) For the purposes of any law, a document may be served on a company by: (a) leaving it at, or posting it to, the company s registered office;; or (b) delivering a copy of the document personally to a director of the company who resides in Australia or in an external Territory; or (c) if a liquidator of the company has been appointed - leaving it at, or posting it to, the address of the liquidator s office in the most recent notice of that address lodged with ASIC; or (d) if an administrator of the company has been appointed - leaving it at, or posting it to, the address of the administrator in the most recent notice of that address lodged with ASIC. (2) For the purposes of any law, a document may be served on a director or company secretary by leaving it at, or posting it to, the alternative address notified to ASIC under subsection 5H(2), 117(2), 205B(1) or (4) or 601BC(2). However, this only applies to service on the director or company secretary: (a) in their capacity as a director or company secretary; or (b) for the purposes of a proceeding in respect of conduct they engaged in as a director or company secretary. (3) Subsections (1) and (2) do not apply to a process, order or document that may be served under section 9 of the Service and Execution of Process Act (6) This section does not affect: (a) any other provision of this Act, or any provision of another law, that permits; or (b) the power of a court to authorise; a document to be served in a different way. (7) This section applies to provisions of a law dealing with service whether it uses the expression serveǁ or uses any other similar expression such as - giveǁ or - sendǁ. Corporations Act 2001 (Cth) 601CD When a foreign company may carry on business in this jurisdiction (1) A foreign company must not carry on business in this jurisdiction unless: (a) it is registered under this Division; or (b) it has applied to be so registered and the application has not been dealt with. (2) For the purposes of this Division, a foreign company carries on business in this jurisdiction if it: (a) offers debentures in this jurisdiction; or (b) is a guarantor body for debentures offered in this jurisdiction; and Part 2L.1 applies to the debentures. 16

12 Corporations Act 2001 (Cth) 601CX Service of documents on registered body (1) A document may be served on a registered body: (a) by leaving it at, or by sending it by post to, the registered office of the body; or (b) in the case of a registered foreign company - by leaving it at, or by sending it by post to, the address of a local agent of the foreign company, being: (i) in a case to which subparagraph (ii) does not apply - an address notice of which has been lodged under subsection 601CG(1); or (ii) if a notice or notices of a change or alteration in that address has or have been lodged under subsection 601CV(1) - the address shown in that last-mentioned notice or the later or latest of those last-mentioned notices. (2) For the purposes of subsection (1), the situation of the registered office of a registered body: (a) in a case to which neither paragraph (b) nor paragraph (c) applies - is taken to be the place notice of the address of which has been lodged under paragraph 601CB(e) or 601CE(g); or (b) if only one notice of a change in the situation of the registered office has been lodged with ASIC under subsection 601CT(3) - is, on and from: (i) the day that is 7 days after the day on which the notice was lodged; or (ii) the day that is specified in the notice as the day from which the change is to take effect; whichever is later, taken to be the place the address of which is specified in the notice; or (c) if 2 or more notices of a change in the situation of the registered office have been lodged under subsection 601CT(3) - is, on and from: (i) the day that is 7 days after the day on which the later or latest of those notices was lodged; or (ii) the day that is specified in the later or latest of those notices as the day from which the change is to take effect; whichever is later, taken to be the place the address of which is specified in the relevant notice; and is so taken to be that place irrespective of whether the address of a different place is shown as the address of the registered office of the registered body in a return or other document (not being a notice under subsection 601CT(3)) lodged after the notice referred to in paragraph (a) or (b), or the later or latest of the notices referred to in paragraph (c), was lodged. (3) Without limiting the operation of subsection (1), if 2 or more directors of a registered body reside in Australia or an external Territory, a document may be served on the body by delivering a copy of the document personally to each of 2 of those directors. (3A) Without limiting the operation of subsection (1), a document may be served on a registered body that is registered as a proprietary company and has only one director by delivering a copy personally to that director. (4) Where a liquidator of a registered body has been appointed, a document may be served on the body by leaving it at, or by sending it by post to, the last address of the office of the liquidator notice of which has been lodged. (5) Nothing in this section affects the power of the Court to authorise a document to be served on a registered body in a manner not provided for by this section. (6) Subject to subsection 8(4), subsection 8(3) applies in relation to a reference in this section. 17

13 ii. Jurisdiction based on defendant's submission: At common law, a court may also establish jurisdiction over a person by that person s consent, or voluntary submission to the court s jurisdiction. Voluntary submission? Commonly, parties to an agreement agree (via a forum clause) that any dispute is to be determined by the courts of the forum or of a foreign country and thereby submit themselves to the jurisdiction of its court. This clause constitutes a voluntary submission to the forum courts jurisdiction and a party cannot later deny such jurisdiction. The submission to jurisdiction should be expressly stated in the contract, it is unlikely to otherwise be inferred from the terms of the contract. o Thus, a forum clause can be distinguished from a choice of law clause that specifies the proper law governing the contract as such a clause is not a sufficient ground of jurisdiction at common law. It should also be distinguished from an arbitration clause in which the parties submit to arbitration. However, in such a clause, the parties may have been taken as to submit to the jurisdiction of the forum in so far as the courts are empowered to supervise or review arbitration proceedings. Uniform Civil Procedure Rules 2005 (NSW) 10.6 Service in accordance with agreement between parties (1) In any proceedings, any document (including originating process) may be served by one party on another (whether in New South Wales or elsewhere) in accordance with any agreement, acknowledgment or undertaking by which the party to be served is bound. (1A) In relation to the service of an originating process in proceedings on a claim for possession of land, the agreement, acknowledgment or undertaking referred to in subrule (1) must be made after the originating process is filed but before it is served. (2) Service in accordance with subrule (1) is taken for all purposes (including for the purposes of any rule requiring personal service) to constitute sufficient service. Uniform Civil Procedure Rules 2005 (NSW) 11.2 Cases for service of originating process (1) Originating process may be served outside Australia in the circumstances referred to in Schedule 6. (2) This rule extends to originating process to be served outside Australia in accordance with the Hague Convention. Uniform Civil Procedure Rules 2005 (NSW) Schedule 6 Proceedings in respect of which originating process may be served outside Australia Originating process may be served outside Australia in relation to the following circumstances: (h) if the proceedings are proceedings in respect of which the person to be served has submitted or agreed to submit to the jurisdiction of the court, 18

14 Submission by Agreement: The person who knows that litigation is pending may instruct a lawyer to accept service of initiating process on their behalf. Jurisdiction is established once the lawyer is served. Uniform Civil Procedure Rules 2005 (NSW) Acceptance of service by solicitor If a solicitor notes on a copy of: (a) any originating process, or (b) any other document required or permitted to be served in any proceedings, but not required to be personally served, that he or she accepts service of the document on behalf of any person, the document is taken to have been duly served on that person on the date on which the note is made or on such earlier date of service as may be proved. A defendant can submit to the court s jurisdiction by express agreement, authorising lawyers to accept process [UPCR 10.13] It is open to the parties to agree on the mode of service different from those in the rules. Howard v National Bank of New Zealand Ltd (2002) 121 FCR 366 The dispute arose out of certain loan transactions which the applicant entered into with the Queenstown branch of the respondent bank. On the facts, Mr Chan expressly invited Mr Cusack to serve the process issued by the applicants out of this court on the respondents by delivering service copies of the material to Minter Ellison Rudd Watts at their office in Wellington. Mr Cusack acted on that invitation. The originating proceedings were served on the respondents in NZ without leave. An order confirming that service is now sought. The respondents oppose confirmation. Drummond J: It is open to parties to litigation to agree on a mode of service different from those provided for in the rules unless the rules themselves prohibit consensual service. A party to a contract who is outside the Commonwealth will be regarded as having submitted to the jurisdiction of this court by agreeing (in a formal or informal ad hoc way) that it is to have jurisdiction over that party with respect to disputes arising under the contract. o But if the parties have failed to specify in the contract the method by which the foreign respondent party can be served process, leave to serve out of the court s jurisdiction will still be necessary to complete this court s authority over that respondent The general rule is that it is for the court to determine, in the interests of justice, the time and manner in which the jurisdiction issue should be resolved. However, where a statutory precondition to the invocation of the court s jurisdiction was required to exist before the court s jurisdiction can be invoked, the court might be under an obligation to determine the facts upon which its jurisdiction depends as a preliminary issue. o If the conduct relied upon by the applicants all took place in New Zealand or if the subject matter of their complaints concerns activity with respect to financial services, then the applicants may fail to prove the case that they have set up. But I do not think that it is a statutory precondition to the existence of this court s jurisdiction. 19

15 Garsec v His Majesty the Sultan of Brunei (2008) NSWCA 211 The claimant brought proceedings relating to an alleged agreement to sell an old, rare and beautiful manuscript copy of the Holy Koran for $8 million. The Sultan failed to perform the contract. The claimant sought specific performance. The Sultan (first defendant) was served out of the jurisdiction. The second defendant has not been served but the proceedings have come to his attention and he has engaged the same Australian solicitors. The defendants took no steps to protect their position. Thus, when they later applied to withdraw their appearance, it was refused. Spigelman CJ: On the facts, notwithstanding that there was no other tribunal in which the proceedings could be heard; this court is a clearly inappropriate forum. Proceedings which are brought for the dominant purpose of preventing another party from pursuing remedies available in the courts of another country and not available in this country are seriously and unfairly prejudicial and damaging. They are thus oppressive. o The inability to obtain relief in the foreign forum must also be relevant, albeit not decisive. The fact that it is the only forum in which relief may be available should generally be given significant weight. However, a possible consequence of the test adopted in Australian law is that the Australian forum could be regarded as clearly inappropriate, even though proceedings could not be commenced in any other forum. Campbell JA: Both opponents filed a notice of appearance in the proceedings. The trial judge refused leave to withdraw the notices of appearance. When both opponents have appeared, the Supreme Court clearly has jurisdiction to deal with the case alleged against them. The effect of the stay granted by the trial judge is, despite it having jurisdiction over the dispute, the court declines to exercise that jurisdiction. o The power is a discretionary one in the sense that its exercise involves a subjective balancing of processes. It should only be exercised in a clear case. The onus lies upon the defendant. In order to justify a stay two conditions must be satisfied: 1. The defendant must satisfy the Court that the continuance of the action would cause an injustice because it would be oppressive or vexatious to him or would be an abuse of the process of the court in some other way. 2. The stay must not cause an injustice to the plaintiff If the plaintiff is not acting bona fide or in pursuit of a legitimate advantage in pursuing the proceedings in a legal system of this country, that will of course make it much easier for a continuation of the proceedings to be characterised as vexatious or oppressive. The mere fact that a tribunal in some other country would be a more appropriate forum for the particular proceedings does not necessarily mean that the local court is a clearly inappropriate one. The court has a duty to disputes that are within its jurisdiction except where continuance of the action would involve conduct that was oppressive or vexatious sufficiently to amount to an injustice. 20

16 Submission by Appearance: Entry by the defendant of an unconditional appearance in response to the plaintiff s service of initiating process is clearly an expression of submission. Submission to the jurisdiction cannot be inferred; however a person who actively challenges the jurisdiction of the court must act consistently with such a protest. Tacit concession of the court s right to hear and determine the merits of the plaintiff s claim (eg, taking positive steps such as allowing the substantive claim to be heard, making a counter-claim on the basis of the plaintiff s claim or consenting to interlocutory orders on the clause etc.) will be taken as submission to jurisdiction. A foreign party, who submits to jurisdiction for one claim, does not consent to the jurisdiction for all purposes. However a foreign plaintiff who brings an action does consent to the jurisdiction of the court in relation to any related cross-claims. o Exceptions include forum non conveniens, whereby the application proceeds on the basis that the court has jurisdiction but should use its discretion to decline the exercise of that jurisdiction, as well as applications for further particulars of the plaintiff s claim. A person who does not intend to submit to the court s jurisdiction generally has two alternatives: o The person served may refuse to enter any appearance. In NSW, this is the only option available to a defendant; however the defendant may apply to have the service set aside without having entered an appearance. o Except in NSW and SA, the person served may enter a conditional appearance. National Commercial Bank v Wimborne (above) Marlborough Harbour Board v Charter Travel Co (1989) 18 NSWLR 223 Passengers sought damages for negligence against the owners of the ship and the travel agent. The owners and travel agent subsequently initiated a cross-claim against the Marlborough board and the captain of the ship. o NB, a party who submits to jurisdiction for one purpose does not submit to jurisdiction for all purposes. The court held that, by bringing an action, a foreign plaintiff does not submit to every crossclaim. However, they do submit to a cross-claim arising out of the same subject matter, whether or not comprising the same cause of action. On the facts, the cause of action arose from the sinking of the ship. As such, the plaintiffs were exposed to the defendant s cross-claim. Vertzyas v Singapore Airlines (2000) 50 NSWLR 1 Passenger brought a claim in the NSW District Court. The Defendant defended both on the merits and on the basis of jurisdiction. The passenger argued that, by defending on the merits, Singapore Airlines had summited to jurisdiction Applying Laurie v Carol, in order for a party to waive an objection to such jurisdiction, he must commit acts in court proceedings. Acts outside court proceedings are not relevant. o On the facts, by the conduct of the defendant in seeking further particulars etc, they had shown an unequivocal intention to contest on the merits. As such, they had submitted to the jurisdiction of the court. 21

17 Objection to jurisdiction: Uniform Civil Procedure Rules 2005 (NSW) Setting aside originating process etc (1) In any proceedings, the court may make any of the following orders on the application of a defendant: (a) an order setting aside the originating process, (b) an order setting aside the service of the originating process on the defendant, (c) an order declaring that the originating process has not been duly served on the defendant, (d) an order discharging: (i) any order giving leave to serve the originating process outside New South Wales, or (ii) any order confirming service of the originating process outside New South Wales, (e) an order discharging any order extending the validity for service of the originating process, (f) an order protecting or releasing: (i) property seized, or threatened with seizure, in the proceedings, or (ii) property subject to an order restraining its disposal or in relation to which such an order is sought, (g) an order declaring that the court has no jurisdiction over the defendant in respect of the subject-matter of the proceedings, (h) an order declining to exercise jurisdiction in the proceedings, (i) an order granting such other relief as the court thinks appropriate. (2) Such an order may not be made unless notice of motion to apply for the order is filed by the defendant within the time limited for the defendant to enter an appearance in the proceedings. (3) Notice of motion under subrule (2): (a) may be filed without entering an appearance, and (b) must bear a note stating the applicant s address for service. (4) The making of an application for an order under subrule (1) does not constitute submission to the jurisdiction of the court. 22

18 B. SERVICE ELSEWHERE IN AUSTRALIA It is now relatively easy to effect service within Australia. The Courts have territorial jurisdiction within Australia and thus a plaintiff may have a person located in one state or territory served by initiating process out of either the Federal Court or the High Court. The High Court has original jurisdiction in a small number of matters that have a specifically federal dimension (eg, diversity jurisdiction pursuant to s 75 of the Constitution). However, such actions are confined to natural persons residing in different states at the time the action is brought and such cases may be remitted to lower courts for adjudication. The Service and Execution of Process Act 1992 (Cth) governs the interstate service of any initiating process issued out of a state or territory court. In effect, the following provisions extend the personal jurisdiction of all state and territory courts to the whole of Australia, giving them the right to compel the appearance of any person anywhere in Australia. The Act provides that initiating process can be served anywhere in Australia and is to be served as the rules of the court of issue require [s 15]. However, certain notices must accompany the initiating process, advising the defendant of their rights as to jurisdiction and to contest the action [s 16], although the plaintiff s failure to include such a notice is a mere irregularity that can be waived by the defendant. Process served interstate takes effect as if it had been served in the same state or territory of the court of issue [s 12]. A defendant who is required to enter an appearance must do so with 21 days [s 17] Service and Execution of Process Act 1992 (Cth) 5 Territories regarded as States (1) For the purposes of this Act, each Territory (other than a Territory that, under subsection 7(2), is taken to be part of a State or another Territory) is to be regarded as a State. (2) For the purposes of the application of this Act in relation to a Territory (other than the Australian Capital Territory), the reference to the Governor of a State in paragraph (a) of the definition of tribunal in subsection 3(1) is a reference to the Administrator of the Territory. Service and Execution of Process Act 1992 (Cth) 7 Territories (1) This Act extends to each external Territory. (2) For the purposes of this Act: (a) the Christmas Island Territory is taken to be part of Western Australia; and (b) the Territory of Cocos (Keeling) Islands is taken to be part of Western Australia; and (c) the Jervis Bay Territory, the Australian Antarctic Territory and the Territory of Heard Island and McDonald Islands are taken to be part of the Australian Capital Territory; and (d) the Territory of Ashmore and Cartier Islands is taken to be part of the Northern Territory; and (e) the Coral Sea Islands Territory is taken to be part of Norfolk Island. 23