2. PERSONAL JURISDICTION... 9 (A) COMMON LAW i) Territorial jurisdiction based on defendant s PRESENCE... 10

Transcription

1 1. INTRODUCTION... 5 A) SOME CONCEPTS AND PERSISTENT ISSUES... 5 B) CASE STUDIES... 6 C) COURSE ROADMAPS... 8 i) Tpics and Surces f Law... 8 ii) Stare Decisis and Private Internatinal Law PERSONAL JURISDICTION... 9 (A) COMMON LAW i) Territrial jurisdictin based n defendant s PRESENCE Individuals Persnal Service Substituted Service Crpratins (b) Jurisdictin Based n Defendant s SUBMISSION Psitive Submissin Submissin by Cnduct C. SERVICE ELSEWHERE IN AUSTRALIA (STATUTE) D. SERVICE IN NEW ZEALAND E. SERVICE OUTSIDE AUSTRALIA i) General NSW Service Leave t Prceed If D applies t Set Aside Service ii) Schedule 6 Grunds f Jurisdictin Cause f Actin arising in NSW Cntract Trts F. DISCRETIONARY NON-EXERCISE OF JURISDICTION i) Freign Jurisdictin Clauses Agreement n Exclusive Freign Jurisdictin Other Relevant Factrs fr Stay New Zealand and Exclusive Jurisdictin Clauses Hw t Apply fr Discretinary Nn-Exercise f Jurisdictin in NSW ii) Internatinal Cases Clearly Inapprpriate Frum Origins f Frum Nn cnveniens The Test in Operatin iii) Intra-Australian cases Inapprpriate Frum G. ANTI-SUIT INJUNCTIONS i) Anti-anti suit injunctins ii) Anti-suit injunctins frm freign curts iii) NZ and Intra-Natinal Prceedings GENERAL APPLICABLE LAW TOPICS A. TERMINOLOGY, STRUCTURE AND APPROACH i) Chice f Law Methd Step 1: Identify Cnflict f Law Step 2: Characterizatin f subject matter (LOOK AT NYGH) ii) The Incidental Questin... 55

2 iii) Renvi Pssible Slutins Australian Psitin iv) Frum statutes and the cnflict f laws Generally Wrded Statute B. STEP 3: PROPER LAW AND THE LEX FORI SUBSTANCE AND PROCEDURE i) Ratinale f distinctin and develpment in Australia Hw t distinguish substantive and prcedural law: ii) Characterizatin by the Lex Fri (Law f the Frum) iii) Limitatin and prescriptin f actins Intra-Natinal and NZ Limitatins Law Limitatins Law f Other Cuntries iv) Heads f damage/ amunt f quantificatin f damages as substantive issues Intra-Natinal Cases Internatinal Cases v) Other issues f substance and prcedure THE LAW APPLICABLE TO TORTS A) INTRODUCTION i) Revisin and key ideas fr chice f law Substance v Prcedure ii) Histrical Backgrund Traditinal Rule in Phillips v Eyre A flexible Exceptin t the rule? Trts Cmmitted within the frum Lex Fri Applies B) MODERN AUSTRALIAN LAW i) Intranatinal Trts ii) Internatinal Trts iii) Lcating the place f the trt (lcus delicti) Types f Cases iv) Override frum statutes v) Freign cmpensatin schemes vi) Cncurrent Liability in Trt and Cntract vii) Renvi D. MARITIME AND AERIAL TORTS i) Maritime Trts Trts n the High Seas Trt Occurring in Territrial seas f State ii) Aerial Trts D. EQUITABLE AND OTHER NON-CONTRACTUAL OBLIGATIONS Fiduciary Obligatins Breach f Cnfidence THE LAW APPLICABLE TO CONTRACTS A) IDENTIFICATION OF THE APPLICABLE LAW i) Express Chice f Law and Limitatins n Autnmy Party Autnmy Limits t Party Autnmy Prmissry character f chice f law prvisin?

3 ii) Inferred Chice iii) Objective Prper Law iv) Overriding frum Statutes v) Renvi B. CAPACITY i) Individuals ii) Crpratins C. FORMATION i) Cnsent; Offer and Acceptance ii) Cnsideratin iii) Frmal Validity D. ILLEGALITY AND FOREIGN PUBLIC POLICY i) Frum Public Plicy ii) Illegality iii) Freign public plicy and internatinal cmity E. PERFORMANCE, VARIATION AND DISCHARGE FOREIGN LAW A) ASCERTAINMENT OF FOREIGN LAW i) Freign Law as Fact ii) Presumptin f similarity Presumptin nt always applicable iii) Expert Evidence iii) Mde f prf: Cmpetent Witness? iv) Alternative Mdes f Prf v) Interstate and Trans-Tasman Law Interstate Law Trans-Tasman Law vi) Filing f ntices vii) Neilsn case Renvi and evidence B. EXCLUSION OF FOREIGN LAW i) Freign Penal and Revenue Laws Revenue Laws Penal Laws ii) Freign gvernmental interests iii) Frum public plicy Vilatin f fundamental principles f justice r mrality Grss Vilatin f Human Rights Vilatin f Internatinal Law Others iv) Cnstitutinal and federal cnsideratins FOREIGN JUDGMENT A) Enfrcement at Cmmn Law i) Jurisdictin in the Internatinal Sense ii) Final and Cnclusive iii) Fixed Sum f Mney? iv) Identity f Parties v) Effect f Freign Judgments Recgnized at Cmmn Law

4 VI) Defences B) Enfrcement in Equity C) Statutry Registratin f Freign Judgments i) Relatinship Between Statute and Cmmn Law ii) Prcedural advantages f recgnitin iii) Effect f Registratin iv) Freign Judgments t which the Statute Applies & Setting Aside Registratins v) Stay f Enfrcement D) New Zealand Judgments: Trans-Tasman Prceedings Act 2010 (Cth) Part i) Enfrcement f NZ judgment exclusively by registratin ii) Setting aside registratin public plicy iii) Others E) Enfrcement f Judgments within Australia F) Internatinal Arbitratin i) Statutry enfrcement ii) Setting aside public plicy [s 8(5)] PRIL PROBLEM

5 1. INTRODUCTION A) SOME CONCEPTS AND PERSISTENT ISSUES What is private internatinal law? Mrtensen: The bdy f principles, rules and at times, plicies and appraches that indicate hw a freign element in a legal prblem r dispute shuld be dealt with Mrris: That part f the private law f a particular cuntry which deals wit cases having a freign element 3 issues that frame the unit Jurisdictin: whether the lcal curt (frum) has pwer t hear and determine the case, r whether the cntacts the case has with anther state r cuntry limit the curt s pwer r willingness t decide the case Chice f law: even if the frum curt has and will exercise jurisdictin t decide the case, whether it will decide it in accrdance with the law f the frum (lex fri), r in accrdance with the law f the ther state r cuntry. I the frum r freign law t be the law f the cause (lex causae) that dispses the case, and hw des the frum curt chse ne r the ther? i.e. cnflict f law Recgnitin and enfrcement f freign judgments: where the case has prceeded t judgment in the ther state/cuntry, whether that judgment can be recgnized r enfrced in the frum Difference between public and private internatinal law PIL Cmprises custmary internatinal law, treaties, cnventins and legislatin passed by internatinal agencies such as the UN. Effectiveness lies nly in cuntries vluntarily cmplying with its rules and it cannt be enfrced directly in Australia unless implemented thrugh legislatin passed by the parliament PIL aims t regulate relatins between natin states that have internatinal persnality It is universal, i.e. rules f public internatinal law are the same regardless f where in the wrld they are cnsidered PrIL Municipal law Legal surces are cnstitutins, statutes, and in CL cuntries, judicial decisins. Hence, rdinary curts can enfrce it Regulates legal relatins between private persns and crpratins. Deals with prblems encmpassed by different areas f private nly but nly t the extent that it invlves a freign element Nt municipal because as municipal law, cnflicts law frequently differs frm cuntry t cuntry and even frm state t state. Objective f PriL: Why cuntries d nt just apply the law f the frum? Cnsistency Ensure cnsistent utcmes (basic principle f the rule f law). Prmtes certainty, predictability and unifrmity in the adjudicatin f multi-state cases Individuals can predict the legal cnsequences f their actins even when they have cntact with ther cuntries and it allws them t make apprpriate plans fr persnal and business arrangement that crss brders Aims t minimize legal significance f the plaintiff s chice f frum, and s discurages frum shpping Particular justice: what is fair in this case 5

6 Judge apply law which is better and mre useful Cmity Curt treating freign law areas with respect Surces f PrIL Cnstitutinal surces S 75 (iv) HC has an riginal jurisdictin in diversity matters that arise between residents f different states S 118 full faith and credit clause Lange v ABC: cmmn law f Australia had t cnfrm t the demands f the Cnstitutin Full faith and credit clause gave states a predminant territrial interest in events within their brders and accrdingly the law f a state where a trt ccurred wuld gvern an interstate trt case Internatinal cnventins Legislatin Judicial decisins Schlarly writings Terms t familiarize with Frum: place in which a dispute may be heard Lex fri: the law f the frum/place (e.g. NSW curt applying NSW law) Lex lci deliciti: the law f the place (lcus) f the wrng (the derelictin) = where the trt/crime ccurred Frum nn cnveniens: an incnvenient frum Lex causae: the law applicable t the settlement f the particular case Lex situs: the place where the prperty is situated Prper law f the x: the system f law gverning the x WADA Essendn Case Issues: Des the Curt f Arbitratin fr Sprt ( CAS ) have jurisdictin t determine this very Australian matter? What law des the CAS apply in reslving the dispute which was arbitrated? Australian law, its wn rules, r smething else? Will an Australian curt enfrce the CAS award? Purpses f PIL Cnsistency: All sprts shuld receive equal treatment under the Wrld Anti-Dping Cde ( WADC ) Particular justice: Is it fair t apply the WADC as the prper law, which essentially entails strict liability? Wuld it be fair if the players culd escape suspensin, if the WADC did nt apply? Cmity: ASADA and Australia recgnize the imprtance f the WADC: The Cde is in use by mst cuntries fllwing the unanimus adptin f the Internatinal Cnventin against Dping in Sprt by the UNESCO General Cnference in B) CASE STUDIES Oceanic Sun Line Special Shipping C v Fay [1988] HCA 32 Facts: 6

7 Bught in NSW an exchange rder frm NSW travel agent, which was exchanged fr ticket when went t Greece. Exchange rder mentined ship, sailing date, cabin number, fare etc. Terms f k printed n ticket, which mther in law travel agent cllected in Greece befre he barded the cruise. She held nt tickets until they were ready t bard cruise. Terms f k Cl 12 limited liability and Cl 13 specified exclusive jurisdictin f Greek Curts Injury ccurred in Greek waters, Greek ship Curt fund that cntract was cncluded in NSW Issues: Did NSW curt have jurisdictin t hear case r shuld it dismiss/stay prceedings in favur f Greek curts? Did the exclusive jurisdictin clause n the ticket k apply? (if s, then tis wuld have meant that the reservatin/exemptins wuld apply) Whse law applied t determine whether exclusin clause frmed part f the k? Findings: Lex fri (i.e. Law f Australia) applied t determine preliminary questin f incrpratin nt putative law f cntract (which was Greek) Cntract f carriage cncluded in NSW nt Greece [whle f curt] (Brennan, Wilsn and They JJ expressed view that prper law f the K was Greek) They and Wilsn: ntwithstanding ur cnclusin that the cntract was made in NSW,... prima facie the prper law f the cntract is the law f Greece. The test fr discvering the prper law f the cntract that is, in general terms, the substantive law f the cuntry which the parties have chsen as that by which their mutually enfrceable rights are t be ascertained Cnditins printed n ticket nt part f cntract (whle f curt) Curt shuld decline t exercise jurisdictin if Australia is a clearly inapprpriate frum (Brennan, Deane and Gaudrn JJ) Majrity decisin nt t fllw UK case f Spiliada v Cansulex [1987]: rejected mre apprpriate frum test (Wilsn and They JJ dissented: Greek curts were mre apprpriate) Venter v Ilna MY Ltd; Ilna MY Ltd v MD Engineering Gesellschaft mit bescharänkter Haftung [2012] NSWSC 1029 Facts: Husband and wife n ship. Mrs. V (American) was chief stewardess and her husband was chief engineer (Suth African). Husband died in frnt f wife due t accident. Ship was registered in Australia and wned by 2 NSW parties and a party in Jersey. Mrs Venter and Ilna settled after argument abut where the accident ccurred This was imprtant: wuld determine applicable law If n high seas, then use law f flag state (ie Australian law), but if in Thailand, apply Thai law (under which limitatin perid had expired). Under Australian law, 3 year limitatin perid Ds then sught t jin D manufacturer and installer f helipad hatch (German C (MDE)) MDE sught permanent stay n prceedings, pinting t K with wners requiring any claim against it t be made in Bchum, Germany. But this was cntained in terms and cnditins that were referred t, but nt attached t, the qutatin (which Illna argued was the cntract) Issue: Like in Fay, there was an issue abut whether this jurisdictin clause was part f the k Findings: Curt fllwed Fay, which held that whether terms f cnditin f trading were part f the K was t be determined by the frum 7

8 Under NSW Law, terms did nt need t be physically attached t K bind parties; but German Prfessr explained that, under German Law, Terms and Cnditins f Trading prbably did need t be attached t the manufacturer s qutatin in rder t bind If parties include in K a freign jurisdictin clause, curts have firm dispsitin t hld parties t bargain, unless party arguing prceedings shuld be heard can prvide strng reasns against ding s Owners crss claim was stayed. But might have been different if Mrs Venter had nt settled (ie her invlvement might have been a strng reasn ) Takeaways: Curts can have jurisdictin but nt exercise it An agreement that x curt has exclusive jurisdictin des nt deprive ther curts (e.g. NSWSC) f their jurisdictin But thse ther curts will hld parties t their bargain and stay prceedings unless they have a strng reasn nt t A curt will als stay prceedings if it is a clearly inapprpriate frum A frum cnsiders freign factrs t determine if clearly inapprpriate, e.g. where party is frm, where did trt ccur, where the witnesses will be etc. An issue: what law gverned the issue f whether the terms were incrprated? The applicable law is relevant t whether prceedings will be stayed C) COURSE ROADMAPS i) Tpics and Surces f Law Tpics: Jurisdictin Des curt have persnal jurisdictin? Cmmn law and statute If s, will curt decline t exercise that jurisdictin? Chice f law tpics General applicable law tpics Law applicable t trts Law applicable t cntracts Freign law Freign judgments Surces f Australian PIL Judicial decisin Acts, e.g. Freign Judgments Act 1991 (Cth) Subsidiary legislatin, e.g. Rules Cmmnwealth Cnstitutin Internatinal cnventins (implemented by legislatin) Schlarly writing nt anymre ii) Stare Decisis and Private Internatinal Law CL is main surce f PrIL, thugh statutes are als imprtant Issues within Australia are ften reslved by statute (eg SEPA, Crss-Vesting Acts) High Curt definitive and establishes ne cmmn law fr whle f Australia This means law acrss Aus is cnsistent unless statutes differ, s chice f law is less imprtant within Australia 8

9 If n High Curt decisin, t what extent are NSW curts bund by decisins f interstate r freign curts? Farah Cnstructins Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 UK judgments Ck v Ck (1986) 162 CLR 376: Subject, perhaps, t the special psitin f decisins f the Huse f Lrds given in the perid in which appeals lay frm this cuntry t the Privy Cuncil, the precedents f ther legal systems are nt binding and are useful nly t the degree f the persuasiveness f their reasning per Masn, Wilsn, Deane and Dawsn JJ, [19] Other freign judgments Unin Shipping New Zealand Ltd v Mrgan [2002] NSWCA 124 (maritime trt case we will cnsider later) Heydn JA, w/ Hdgsn and Santw JJA agreeing: Primary judge had fllwed 19th C decisin and much criticised 1955 decisin f Scttish Inner huse (McKinnn), rather than 3 US SC decisins, which the D argued were highly persuasive Arguably Ck v Ck must be understd as nt glssing ver the differences between passing dicta, cnsidered dicta, and ratines decidendi; nr the difference between statements prceeding frm highly experienced lawyers f gd reputatin in ultimate appellate curts and statements prceeding frm ther persns. 2. PERSONAL JURISDICTION The fcus f Persnal jurisdictin (a) (e) The authrity that an Australian curt (primarily NSWSC) has ver a persn in a case with freign element Limited t actins in persnam, e.g. cntract, trt, claim fr injunctin, etc. If the curt lacks persnal jurisdictin, the matter will nt prceed Hw that might ccur (UCPR r 12.11) Applicatin t set aside the riginating prcess Applicatin t set aside service f the riginating prcess Jurisdictin is cnsidered in the three bld areas. Originating prcess (e.g. writ) issued Service Appearance Interlcutry prceedings à ptential, fr fight verjurisdictin Pleadings Trial Judgment Enfrcement Jurisdictinal issues in PrIL Des this curt have the authrity t decide this case with a freign element? (Kirk case) i.e. Des the curt have the cmpetence (jurisdictin) t hear and determine the crss-brder dispute in questin Even if curt des have authrity t decide the case, will it exercise that authrity? Threshld pints n jurisdictin 9

10 N Australian curt is f unlimited jurisdictin: PT Garuda Indnesia Ltd v Australian Cmpetitin and Cnsumer Cmmissin (2012) 247 CLR 240 Curts can (nt will) hear matters if they have persnal jurisdictin (jurisdictin in persnam) and subject matter jurisdictin. Persnal jurisdictin: amenability f a curt t make rders binding a defendant Includes persnal jurisdictin at cmmn law, persnal jurisdictin in interstate cases, persnal jurisdictin in internatinal cases Subject matter jurisdictin: authrity t decide actins f a particular subject matter (addressed in cnstitutinal law) Fr State curts, few limitatins n subject matter: Federal Capital Cmmissin v Laristan Building and Investment C Pty Ltd (1929) 42 CLR 582, 586 (Dixn J). In cases with a freign element, curt can lack subject matter jurisdictin in cases invlving freign immvables, freign state immunity, etc (A) COMMON LAW Persnal jurisdictin at cmmn law is based n either presence r submissin. If n presence r submissin, jurisdictin can exist under statute A curt has jurisdictin in a civil actin either because the plaintiff has served the riginating prcess n the defendant while within its territrial jurisdictin, [r the defendant has submitted,] r because applicable lng arm prvisins have been invked Jhn Pfeiffer Pty Ltd v Rgersn (2000) 203 CLR 503, 521 [25] i) Territrial jurisdictin based n defendant s PRESENCE Gsper v Sawyer (1985) 160 CLR 548 «Masn and Deane JJ: The general dctrine f the cmmn law is that, in the absence f a submissin t the jurisdictin by a defendant, civil jurisdictin is territrial [T]he rdinary basis f territrial jurisdictin is the persnal presence f the D within the curt s territry The usual methd by which a curt asserts such jurisdictin is the issue (r, arguably, the issue and service) f its writ r ther prcess directed t the D INDIVIDUALS Fr there t be jurisdictin, the D must be amenable t the curt s riginating prcess Jhn Russell and C Ltd v Cayzer, Irvine and C Ltd [1916] 2 AC 298 If D is present within the gegraphical jurisdictin at the time f service, then at cmmn law, the curt has persnal jurisdictin ver D Presence turns n gegraphy: (but nte Statute Law in part (c)) Supreme Curt f states will have pwer t hear and determine an actin where defendant is physically present in relevant state and territry at the time f service Federal Curt and High Curt will have pwer t hear and determine an actin where defendant is physically present in Australia at the time f service Presence issues: (Cases belw will answer thse questins) When des the D need t be present within the jurisdictin Hw lng des the D need t be present? 10

11 Fr what purpses des the D have t be present? Summary f answer (Key pints n timing) The imprtant time is the time f service: Laurie v Carrll Fleeting presence is fine: Laurie v Carrll; HRH v Wildenstein Des nt matter if D subsequently leaves, as lng as served within jurisdictin: Razels v Razels (N 2) [1969] 3 All ER 929 Curt will nt have jurisdictin if writ issued while D in jurisdictin, but D leaves befre D can be served: Laurie v Carrll; Jye v Sheahan Exceptin: if D knew f issue f writ, substituted service pssible: Jye v Sheahan Laurie v Carrll (1958) 98 CLR 310 When D has t be present «Facts: Cntractual dispute between Laurie and Carrll ver prfits f tur. Laurie was in Victria between 11 and 13 June fr perfrmances, and travelled t Sydney. Writ was issued ut f Supreme Curt f Victria n 14 June. Laurie had been invlved in negtiatin t settle the dispute and was aware that Carrll might sue. He left Australia n 20 June, withut ever having been served with the writ. Carrll applied n 21 June fr substituted service «High Curt n appeal: Set aside rder fr substituted service. Laurie had left Victria ne day befre the writ was issued, and was therefre utside the jurisdictin f that State s Supreme Curt. There is n jurisdictin ver a persn wh has been in the territry f the frum, but wh left it befre initiating prcess was issued (i.e. befre curt registry dates and stamps it) «Obiter dicta Issue f writ: defendant may be regarded as falling under the cmmand f the writ as an exercise f jurisdictin. Hwever, it was the service f the writ that perfected the defendant s duty t bey its cmmand t appear befre the curt i.e. there is jurisdictin if D is served within the frum even if D subsequently leaves It des nt matter if presence was temprary as lng as service happens in jurisdictin If D leaves befre served, n jurisdictin unless: D left after the issue f initiating prcess and knew that prcess had been issued r wh left t evade serviceà curt can rder substituted service (affirmed in Jye v Sheahan) Jye v Sheahan (1996) 62 FCR 417 «Facts: 1 Nvember 1994: Sheahan applied t FCA fr rder that Jye attend examinatin abut cmpany affairs f Crtaus Ltd 25 Nvember: Curt issued directing him t attend fr examinatin (under s 596B f the Crpratins Law). Jye still in Oz n this date 9 December: Shehan s slicitrs faxed Jye s slicitrs, telling them that the summns had been issued and asking whether they had instructins t accept service f summns n behalf f Jye. Als psted and received n 13 December 13 December: Jye departed jurisdictin 16 December: Jye s lawyers send letter t Sheahan s laywers saying they had n instructins t accept service 2 Feb 1995: Sheahan sught rder fr substituted service n Jye 11

12 7 Feb: Registrar rdered that persnal service be dispensed with and that service be effected by psting sealed cpy f summns t his slicitrs and accuntants (ie, rder fr sub service made) Jye then applied t have the substituted service rder set aside Ø Distinguished frm Laurie case: Originating prcess nt issued while Laurie was in jurisdictin. Here OP was issued while Jye was in jurisdictin Ø Finding: If D leaves jurisdictin after writ issued and befre service, but did nt knw f existence f writ, then curt will nt have jurisdictin But here, there was strng suggestin that J knew f the summns and left cuntry in rder t evade its service, hence rder fr substituted service was granted Request t High Curt fr special leave was rejected HRH Maharanee f Barda v Wildenstein [1972] 2 QB Hw lng des D have t be present «Facts: Dispute as t authencity f artwrk. Bth parties resident in France. Bth parties wned prperties in UK, including stud farms in Ireland, and were cnnected with scial life in England/ Maharanee served writ (claiming rescissin and repayment) n W at Asct when he ppped in briefly fr a hrse race. Served at races. «Finding: Denning MR: desn t matter if shrt visit, just that D was served in the jurisdictin. Curt shuld nt strike it ut unless vexatius/ppressive/abuse f prcess She was ding n mre than ur law permits, even thugh it may have ruined his day at the races. Sme might regard her actin as bad frm; nne can legitimately cndemn it as an abuse f legal prcess... [Davies LJ] «Nte: In US, Grace v Macarthur initiating prcess validly served by Arkansas curt n the defendant in an aircraft when in the curse f a flight between tw states it passed thrugh Arkansas airspace. In general, the purpse fr which defendant is in the territry is irrelevant (Perrett v Rbinsn) Exceptin: if defendant was tricked, fraudulently enticed r physically cerced by the plaintiff inside the brders f the territry in rder t have the defendant served (Laurie v Carrll) Perrett v Rbinsn [1985] 1 Qd R 83 «Facts: Rbinsn injured Perrett in car accident in NT. Car wned by W, register in Qld; R + P resident in NT. NT law did nt allw claim fr future ecnmic lss (cmpensatin scheme). P wanted t sue in Qld, where he culd get full cmmn law damages. P drve Rbinsn t Qld where he served prcess n him (Rbinsn didn t cmplain as FAI were ultimately liable as insurers). FAI bjected t Qld jurisdictin n basis f fraud. Wanted t have service f the writ set aside, plus a stay n prceedings (in the alternative) «Held: Qld SC said n fraud cmmitted (D had cme in willingly) Valid if came int jurisdictin specially t be served The cmpany culd nt have been defrauded since in the insurance k, FAI had agreed t be liable fr damages in Qld Plus, even if FAI were the real defendant it had presence in the state as it cnducted business there, and s it was within jurisdictin f SC Example f what is nt fraud: D willingly made himself available t be served 12