Nygh's conflict of laws in Australia [Ninth edition.] 9780409332117, 0409332119, 9780409332124, 0409332127

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Nygh’s Conflict of Laws in Australia Ninth Edition

Martin Davies MA (Oxon), BCL (Oxon), LLM (Harvard) Admiralty Law Institute Professor and Director, Maritime Law Center, Tulane University Law School Professorial Fellow, University of Melbourne

Andrew Bell SC BA, LLB (Syd), BCL, D Phil (Oxon), FAAL Barrister, 11 Wentworth Chambers, Sydney Adjunct Professor, University of Sydney Law School

Paul Le Gay Brereton AM, RFD, BA, LLB (Syd), FAAL Judge of the Supreme Court of New South Wales

LexisNexis Butterworths Australia 2014

AUSTRALIA

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Davies, Martin. Nygh’s conflict of laws in Australia. 9th edition. 9780409332117 (pbk). 9780409332124 (hbk). 9780409332155 (ebk). Includes index. Conflict of Laws — Australia. Bell, S. Andrew. Brereton, Paul. 342.94042.

© 2014 Reed International Books Australia Pty Limited trading as LexisNexis. 7th Edition 2002, reprinted 2008, Eighth edition 2010. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Plantin and Gillsans. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface This is the second edition of Peter Nygh’s book Nygh’s Conflict of Laws in Australia to be published since his untimely death in 2002, the year the seventh edition was published. The three co-authors of the eighth edition — Martin Davies of Tulane University Law School, Andrew Bell SC of the New South Wales Bar, and Justice Paul Brereton of the Supreme Court of New South Wales — have reunited to produce this, the ninth edition. Peter Nygh had a distinguished career as an academic and a judge. As befits the leading Australian private international lawyer of his generation, his life and career had a distinctly international flavour. He was born in Germany and received his primary and secondary education in the Netherlands, his tertiary education in Australia, at the University of Sydney Law School, and his postgraduate education in the United States, at the University of Michigan. His career as an academic began at the University of Tasmania and continued at the University of Sydney, where he was first made Professor, and then Macquarie University, where he was a Professor and Founding Head of the Macquarie Law School. He also taught for a year at the University of Cologne in Germany. He was then appointed a Judge of the Family Court of Australia and later designated to the Appeal Division of that court. He served on the Family Court for 14 years. During that time, he was awarded the degree of Doctor of Laws by the University of Sydney, principally in recognition of the contribution to learning he made through earlier editions of this book, the first six of which he wrote alone. After retiring from the Family Court, Peter served as Principal Member of the Refugee Review Tribunal and Visiting Professor at both Bond University and the University of New South Wales. Peter was associated with the Hague Conference on Private International Law for over 25 years, beginning with his membership of Australia’s first delegation in 1975. He helped to draft the Convention on Celebration and Recognition of the Validity of Marriages and the Convention on the Law Applicable to Matrimonial Property Regimes, and he represented Australia in the negotiations that led to the Convention on Protection of Children and Co-operation in Respect

of Intercountry Adoption. He was one of two rapporteurs for the Hague Conference’s arduous efforts to produce an international convention on the recognition and enforcement of judgments. He was honoured by the Australian Government for his outstanding contribution to private international law, and in particular his representation of Australia at the Hague Conference on Private International Law, by the award of a Centenary Medal in 2001 and the Order of Australia in 2002. The co-authors of this edition have continued the practice they developed for the eighth edition: preserving as much as possible of Peter Nygh’s original work, but reorganising and rewriting the content to the extent needed to keep up with the changing nature of transnational litigation. The reorganised structure of the book is the same as in the eighth edition. Martin Davies and Andrew Bell are jointly responsible for Chapter 3. Martin Davies is responsible for Chapters 1, 5, 8, 11, 12, 13, 15, 16, 20, 22, 23, 32, 33, 40 and 42. Andrew Bell is responsible for Chapters 2, 4, 6, 7, 9, 10, 14, 17, 18, 19, 21, 35, 36, 37, 39, 41 and 43. Paul Brereton revised the whole of the section on Family Law — Chapters 24 to 31 — as well as Chapters 34 and 38. Because of Paul Brereton’s position on the Supreme Court of New South Wales, it should be noted that he is not associated with the views expressed in Chapters 1–23 and 32–43 (except 34 and 38). Martin Davies and Andrew Bell (and, of course, Peter Nygh) alone are formally responsible for those chapters. There have been many developments in the areas covered by this book in the three years since the last edition. The new edition considers, among other things, the decisions of the High Court of Australia in Moti v R (2011) 245 CLR 456, about the act of state doctrine and the version of the Moçambique rule applied in intellectual property cases; Momcilovic v R (2011) 245 CLR 1; 280 ALR 221, concerning federal jurisdiction; PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 290 ALR 681, concerning foreign state immunity; and TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (2013) 295 ALR 596, which upheld the constitutional validity of the International Arbitration Act 1974 (Cth). These are just examples: there have been many other significant developments in state and territory courts since the eighth edition, including the decision of the Court of Appeal of New South Wales in Murakami v Wiryadi (2010) 268 ALR 377 on the doctrine of forum non conveniens, choice of law in equity, and issues relating to matrimonial property and equitable obligations; and the decision of the Full Court of the Federal Court of Australia in Joyce v Sunland Waterfront (BVI) Ltd

(2011) 195 FCR 213; 281 ALR 52 on the taking of evidence by video link. There have also been significant legislative and procedural changes. The Federal Court of Australia adopted new rules in 2011. The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters came into force for Australia on 1 November 2010; it has been implemented through changes to the civil procedure rules of the various jurisdictions of Australia, which may have some far-reaching implications for the service of legal documents outside Australia. The Trans-Tasman Proceedings Act 2010 (Cth) came into force on 17 October 2013, changing the way that proceedings in New Zealand are treated in jurisdictional terms. Other jurisdictions around the world have continued to expand acceptance of the legality of same-sex and transgender marriages. Because Australia has not (or has not yet) done the same, there is an increased possibility for conflicts to arise in relation to the recognition of foreign marriages. Although there have been significant legislative developments of the kind just mentioned, Australian conflict of laws is still largely driven by the common law. To that extent, it is increasingly divergent from its parent in the United Kingdom, where the principles governing the traditional conflict of laws areas of jurisdiction, choice of law and enforcement are all now heavily influenced by the instruments designed to shape the processes of dispute resolution within the European Union. A new edition of Dicey’s great English conflicts textbook has been published since our last edition (Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Thomson/Sweet & Maxwell, London, 2012), and while it remains an unparalleled authority on many conflicts issues, it also highlights the everincreasing extent to which the conflict of laws in the United Kingdom is driven by the United Kingdom’s membership of the European Union, and the corresponding decreasing significance of the traditional common law principles, which are still the basis of Australian conflict of laws. Martin Davies would like to thank his two co-authors for agreeing, at a fairly late stage, to take over responsibility for some of the chapters that he had revised for the seventh and eighth editions, because he was unexpectedly unable to complete them himself due to illness (now happily past). Andrew Bell would like to thank his secretary, L’Annie Field, for her excellent secretarial and administrative assistance. Paul Brereton would like to thank Sam Hartridge, Sigrid Neumueller, Warwick Ambrose, Amy O’Callaghan and Ellen Chapple, who assisted with the research.

All authors thank the editorial staff at LexisNexis Butterworths for their professional support in the production of this edition. Martin Davies New Orleans Andrew Bell Sydney Paul Brereton Sydney September 2013

Table of Cases References are to paragraphs A A (a minor), Re [1988] 1 FLR 365 .… 28.69 A (Minors) (Abduction: Custody Rights), In re [1992] Fam 106 (EWCA) .… 28.67, 28.68 — (abduction: habitual residence), Re [1996] 1 All ER .… 28.26, 28.39, 28.41 A Best Floor Sanding Pty Ltd v Skyer Australia Pty Ltd [1999] VSC 170 .… 7.57 A Co Ltd v Republic of X [1990] 2 Lloyd’s Rep 520 .… 10.16, 10.35 A Z (A Minor) (Abduction: Acquiescence), In re [1993] 1 FLR 682 .… 28.55 A-G for Victoria v Commonwealth (1962) 107 CLR 529 .… 29.7, 29.9 A-M v A-M (Divorce: Jurisdiction; Validity of Marriage) [2001] 2 FLR 6 .… 25.73 A/O A M Luther v James Sagor & Co [1921] 3 KB 532 .… 18.24 A/S Tallinna Laevauhisus v Estonian State SS Line (1947) 80 LI LR 99 .… 17.32 A v A (Child Abduction) [1993] 2 FLR 225 .… 13.39 A v B [1979] 1 NSWLR 57 .… 28.13 — v — [2007] 1 Lloyd’s Rep 237 .… 39.8 A v GS (2004) 32 Fam LR 583 .… 28.43 A v H [2009] EWHC 636 (Fam) .… 25.73, 29.5 Abate v Abate [1961] P 29 .… 26.49

ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 .… 4.6 ABC Shipbrokers v The Offi Gloria [1993] 3 NZLR 576 .… 16.43, 33.72 Abdullahi Ali Gurey, Re [2000] MRTA 43 .… 25.72 Abebe v Commonwealth (1999) 197 CLR 510; 162 ALR 1 .… 5.5 Abela v Baadarani [2013] UKSC 44 .… 3.37 Abidin Daver, The [1984] AC 398 .… 7.88 Abigroup Contractors Pty Ltd v Transfield Pty Ltd [1998] VSC 103 .… 7.5 Abouloff v Oppenheimer (1882) 10 QBD 295 .… 40.71 Abrahamson, Re; Ex parte Crisp and Gunn Ltd (1978) 22 ALR 749 .… 42.17 Abrook v Paterson (1995) 58 FCR 293 .… 6.38, 6.58 Absolutely Fabulous Exhibitions and Events (Management) Pty Ltd (in liq), Re (1997) 25 ACSR 577 .… 36.77 Acc Fin International Securities Ltd v National Trustees Executors and Agency Co of Australasia Ltd (1990) 99 FLR 432 .… 6.20 ACD Tridon v Tridon Australia [2002] NSWSC 896 .… 7.32, 7.35, 7.56, 7.57 Ace Insurance Ltd v Moose Enterprise Pty Ltd [2009] NSWSC 724 .… 7.64, 8.27, 9.1, 9.19, 9.22, 9.32, 19.14, 19.19 Ace Insurance SA NV v Zurich Insurance Co [2001] 1 Lloyd’s Rep 618 .… 7.60 Acehill Investments Pty Ltd v Incitec Ltd [2004] SASC 344 .… 35.10 Ackermann v Levine, 788 F 2d 830 (2d Cir 1986) .… 3.34, 11.6 ACN 006 397 413 Pty Ltd v International Movie Group (Canada) Inc [1997] 2 VR 31 .… 43.2, 43.13 ACN 076 676 438 Pty Ltd (in liq) v A-Comms Teledata Pty Ltd [2000] WASC 214 .… 3.115 Acton Engineering Pty Ltd v Campbell (1991) 31 FCR 1 .… 35.10 Adams v Cape Industries plc [1990] Ch 433 .… 26.62, 35.17, 35.24, 40.10, 40.11, 40.17, 40.19, 40.86–40.88 — v National Bank of Greece SA [1961] AC 255 .… 14.42, 14.45, 14.46, 18.63, 19.101, 35.49

ADC & AMC, Application; re HAC [2013] NSWSC 565 .… 30.31 Adcock v Aarons (1903) 5 WALR 140 .… 3.54 Addison v Addison (1965) 399 P 2d 897 .… 27.14 — v Brown [1954] 2 All ER 213 .… 18.41 Adelaide Electric Supply Co v Prudential Assurance Co [1934] AC 122 .… 19.91 Adoption, Re (1995) 14 SR (WA) 387 .… 30.24 Adoption Application, Re [1952] Ch 16; [1951] 2 All ER 931 .… 30.3 — [1981] 2 NSWLR 645 .… 30.28 AFG Insurances Ltd [2002] NSWSC 735 .… 36.43 AG v Bouwens (1838) 4 M & W 171 .… 32.40 — v Glendining (1904) 92 LT 87 .… 32.44 Agar v Hyde (2000) 201 CLR 552 .… 3.37, 3.41, 20.12 Agee, In the Marriage of (2000) 27 Fam LR 140 .… 28.72, 28.73, 28.76 Agnew v Usher (1884) 14 QBD 78 .… 3.94 Agro Co of Canada Ltd v The Regal Scout [1984] 2 FC 851 .… 7.21, 7.42 Ah Yin v Christie (1907) 4 CLR 1428 .… 13.19 Aichhorn & Co KG v The Ship MV Talabot (1975) 132 CLR 449 .… 5.12 AIG (UK) Ltd v QBE Insurance (Europe) Ltd [2008] QSC 308 .… 6.31, 19.9 AIG Europe (UK) Ltd v The Ethniki [2000] 2 All ER .… 7.23 AIG Europe SA v QBE International Insurance Ltd [2001] 2 Lloyd’s Rep 268 . … 7.23 Ainslie v Ainslie (1927) 39 CLR 381 .… 26.52, 40.33, 40.44, 40.60, 40.62 Air Attention WA Pty Ltd v Seeley International Pty Ltd (Walsh J, SC (WA), 3 September 1996, BC9604200, unreported) .… 6.29 Air Foyle Ltd v Center Capital Ltd [2003] 2 Lloyd’s Rep 753 .… 40.92 Air Nauru v Niue Airlines Ltd [1993] 2 NZLR 632 .… 7.52 Airbus Industrie GIE v Patel [1999] 1 AC 119 .… 9.8

Ajatni v Comptroller of Customs [1954] 1 WLR 1405 .… 17.27 AK Investment CJSC v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804 .… 10.76, 10.81, 40.71, 40.87, 40.88, 41.16 Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 .… 6.32, 7.40, 7.50, 7.80, 19.11, 19.18, 19.22, 19.25, 19.26, 19.42, 19.49, 39.2, 39.3, 40.17 — v — [1998] 1 Lloyd’s Rep 90 .… 9.1, 9.3, 9.19, 19.49, 40.17, 40.45 Akbarali v Brent London Borough Council [1983] 2 AC 309 .… 13.35, 13.37, 13.38 Akers v Saad Investments Co Ltd (2010) 190 FCR 285 .… 36.19, 36.21 Akzo Nobel Chemicals Ltd v Commission of the European Communities [2011] 2 AC 338 .… 16.26 Al Battani, The [1993] 2 Lloyd’s Rep 219 .… 7.86, 19.49 Al Habtoor v Fotheringham [2001] EWCA Civ 186 .… 28.41 Al Midani v Al Midani [1999] 1 Lloyd’s Rep 923 .… 19.8 Al-Bassam v Al-Bassam [2002] EWHC 2281 .… 19.8 — v — [2004] EWCA Civ 857 .… 38.3 Al-Saedy v Musawi [2010] EWHC 3293 (Fam) .… 25.73 Alaska Packers Assn v Industrial Accident Commission of California (1935) 294 US 532 .… 2.22 Albeko Schuhmaschinen AG v The Kamborian Shoe Machine Co Ltd (1961) 111 LJ 519 .… 19.64 Alcock v Smith [1892] 1 Ch 238 .… 22.17, 22.22–22.24, 33.25 Alcom Ltd v Republic of Columbia [1984] AC 580 .… 10.20, 10.35 Aldridge Electrical Industries Pty Ltd v Mobitec AB (2001) 39 ACSR 287 .… 23.14 Alexandra I, The [1972] 2 Lloyd’s Rep 469 .… 23.4 Alexsandrov v Alexsandrov [1967] SASR 303 .… 26.48, 26.53 Alfonso-Brown v Milwood [2006] EWHC 642 (Fam) .… 25.4 Ali v Ali .… 24.34, 24.36, 24.37, 24.39

Alkimos Shipping Company v Hind Lever Chemicals Corporation Ltd [2004] FCA 969 .… 9.1, 9.19 Allan J Panozza & Co Pty Ltd v Allied Interstate (Q) Pty Ltd [1976] 2 NSWLR 192 .… 16.17, 19.106 Alleged Incapable Person F C C and the Protected Estates Act 1983, Re (1990) 19 NSWLR 541 .… 6.48, 6.52, 31.11, 42.31, 42.32 Allen v Kemble (1848) 6 Moo PCC 314 .… 22.29 — v Lloyd’s of London 94 F 3d 923 (1996) .… 7.47 Allen’s Estate, Re [1945] 2 All ER 264 .… 38.53, 38.54 Allerdyce Lumber Company Ltd v Quarter Enterprises Pty Ltd [2010] NSWSC 807 .… 41.14 — v — (No 2) (2012) 265 FLR 217; [2012] NSWSC 438 .… 40.74, 41.14, 41.16 Alliance Bank (Ltd) v Irving (1865) 4 SCR (NSW) Eq 17 .… 37.24 Allison, In the Marriage of (1981) 1 SR(WA) 248 .… 27.27 Allonah Pty Ltd v The Ship Amanda N (1989) 21 FCR 60; 90 ALR 391 .… 5.15 Allsopp v Incorporated Newsagencies Co Pty Ltd (1975) 26 FLR 238 .… 20.16, 20.70 Allstate Life Insurance Co v ANZ Banking Group Ltd (1996) 64 FCR 1 .… 9.1, 9.15, 9.18, 9.28, 9.30 — v — [1995] FCA 1563 .… 9.1 — v — (FCA, 21 September 1995, unreported) .… 9.18 — v — (No 18) (1995) 133 ALR 667 .… 11.20, 11.21 — v — (1996) 64 FCR 55 .… 9.13 — v — (No 3) (1996) 64 FCR 1 .… 9.12 — v — (No 4) (Court’s Allstate Judgment No 29) (1996) 64 FCR 61 .… 11.21 — v — (No 33) (1996) 64 FCR 79 .… 17.8, 17.30 — v Hague (1981) 449 US 302 .… 2.24 Alstom Ltd v Sirakis (No 2) [2012] NSWSC 64 .… 17.15, 21.14, 23.11

Altertext Inc v Advanced Data Communications Ltd [1985] 1 All ER 395 .… 3.4, 4.16 Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676 .… 33.33 Amaca Pty Ltd v Frost (2006) 67 NSWLR 635 .… 20.11 — v Munro [2013] NSWSC 50 .… 6.13, 6.30 Amalgamated Wireless (Australasia) Ltd v McDonnell Douglas Corporation (1987) 77 ALR 537 .… 35.20, 35.24 Amaltal Corporation Ltd v Maruha (NZ ) Corp Ltd [2004] 2 NZLR 614 .… 43.9 Amanuel v Alexandros Shipping Co [1986] QB 464 .… 3.86, 3.87 Amazonia, The [1990] 1 Lloyd’s Rep 236 .… 7.25, 7.37 Amchem Products Inc v Workers Compensation Board [1993] 1 SCR 897 .… 9.8 American Diagnostica Inc v Gradipore Ltd (1998) 44 NSWLR 312 .… 39.1, 39.7, 39.9, 39.10 American Nonwovens Inc v Non Wovens Engineering SRL (1994) 648 So 2d 565, 567 (Ala) .… 15.14 Amin Rasheed Shipping Corporation v Kuwait Insurance Co [1984] AC 50 .… 19.1, 19.4, 19.23, 19.27, 19.31–19.33 Amor v Macpak Pty Ltd (1989) 95 ALR 10 .… 6.50 AMP Society v GEC Diesels Australia Ltd [1989] VR 407 .… 3.73, 3.90 — v Gregory (1908) 5 CLR 615 .… 32.5, 32.8, 32.11, 36.6 Amrad Operations Pty Ltd v Genelabs Technologies Inc (1999) 45 IPR 447 .… 3.44 Amwano v Parbery (2005) 148 FCR 126 .… 8.42, 17.3 Anderson, Re [1911] 1 KB 896 .… 16.37, 36.3, 36.5, 36.33 — v Equitable Assurance Society of the United States (1926) 134 LT 557 .… 23.7 — v Eric Anderson Radio and TV Pty Ltd (1965) 114 CLR 20 .… 2.13, 5.16 — v Johnson (1877) 1 Knox (NSW) 1 .… 16.39

— v King County (2006) 138 P 3d 963 .… 24.8 — v NV Transandine Handelsmij (1941) 31 NYS 2d 194 .… 35.37 AndhikaSamyra, The [1989] 1 HKLR 198 .… 7.42 Andrico Unity, The 1989 (4) SA 325 .… 16.43, 33.72 Andros, Re (1883) 24 Ch D 637 .… 29.11 Angelic Grace, The [1994] 1 Lloyd’s Rep 168 .… 7.72 — [1995] 1 Lloyd’s Rep 87 .… 9.19, 9.21 Angliss v Urquhart [2002] NSWCA 256 .… 31.1 Anglo-Australian Foods Ltd v Von Planta (1988) 20 FCR 34 .… 8.4 Anglo-Czechoslovak & Prague Credit Bank v Janssen [1943] VLR 185 .… 10.6 Angus v Commonwealth (1962) 79 WN (NSW) 388 .… 5.23 Annand, Re (1888) 14 VLR 1009 .… 40.57 Annefield, The [1971] P 168 .… 7.22 Annesley, Re [1926] Ch 692 .… 13.27, 14.54, 15.4, 15.10, 15.21 Anning v Anning (1907) 4 CLR 1049 .… 33.16, 33.30, 33.64 Antclizo Shipping Corp v Food Corp of India (SC (WA), Bredmeyer M, 6 November 1998, unreported). .… 43.15 Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55 .… 4.1 Antoniou, In the Marriage of [1990] FLC 92-146 .… 28.21 ANZ Banking Group Ltd v Cawood [1987] 1 Qd R 131 .… 23.11, 23.20 ANZ Grindlays Bank plc v Hussein Salah Hussein Abdul Fattah (1991) 4 WAR 296 .… 3.4, 3.38, 4.2, 4.16, 4.18, 4.19, 4.24 Anziani, Re [1930] 1 Ch 407 .… 33.21, 33.60 APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 .… 2.3 Apple Computer Inc v Apple Corps SA [1990] 2 NZLR 598 .… 7.52 Apple Corporations Ltd v Apple Computer Inc [1992] RPC 70 .… 9.19 Applecross Pte Ltd v Lim (No 2) [2010] FCA 589 .… 3.11 Applewhite v Etheridge, 187 SE 588 (1936) .… 33.54

Apt v Apt [1948] P 83 .… 14.4, 14.16–14.18, 14.41, 25.4, 25.8 Aquagenics Pty Ltd v Break O’Day Council [2010] TASFC 3 .… 7.55 Arab Monetary Fund v Hashim (No 3) [1991] 2 AC 114 .… 10.60 — v — (No 5) [1992] 2 All ER 910 .… 4.22 — v — [1993] 1 Lloyd’s Rep 543 .… 21.5, 21.6 Aratra Potato Co Ltd v Egyptian Navigation Co (The El Amria) [1982] 1 Lloyd’s Rep 119 .… 7.89 Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545 .… 4.10, 4.14, 11.8, 11.37 Armacel Pty Ltd v Smurfit Stone Container Corporation (2007) 164 FCR 123 . … 4.12 — v — (2008) 248 ALR 573 .… 3.45, 7.63, 7.64, 8.60, 40.52–40.55 Armagas Ltd v Mundogas SA [1986] AC 717 .… 20.6, 20.18 Armar Shipping Co Ltd v Caisse Algerienne d’Assurance et de Reassurance (The Armar) [1981] 1 All ER 498 .… 3.67 Armitage v Attorney-General [1906] P 135 .… 15.17, 26.46 Armstead v Armstead [1954] VLR 733 .… 13.9, 13.24 Armstrong v Armstrong [1892] P 98 .… 9.13 Armytage v Armytage [1898] P 178 .… 13.37 Arnotts Ltd v Trade Practices Commission (1990) 97 ALR 555 .… 5.16 Arsanovia Ltd v Cruz City 1 Mauritius Holdings [2012] EWHC 3702 .… 39.2, 43.7 Artola Hermanos, Re (1890) 24 QBD 640 .… 36.24–36.27, 36.31, 36.32, 36.34 Asciano Services Pty Ltd v Australian Rail Track Corporation Ltd [2008] NSWSC 652 .… 6.32 Ash v Lloyd’s Corporation (1991) 6 OR(3d) 235 .… 7.27, 7.47 Ashjal Pty Ltd v Alfred Toepfer International (Australia) Pty Ltd [2012] NSWSC 1306 .… 41.8 Ashville Investments v Elmer Contractors [1989] 1 QB 488 .… 7.72

ASIC v Activesuper Pty Ltd (No 1) (2012) 92 ACSR 614 .… 35.15, 35.22–35.24 — v Cycclone Magnetic Engines Inc (2009) 71 ACSR 1 .… 35.24 — v Edwards [2004] QSC 344 .… 35.24 — v International Unity Insurance (General) Ltd [2004] FCA 1060 .… 35.21 — v Risqy Ltd [2008] QSC 107 .… 35.24 Askew, Re [1930] 2 Ch 259 .… 15.10, 15.24 Assetinsure Pty Ltd v New Cap Reinsurance Corporation Ltd (in liq) (2006) 225 CLR 331 .… 32.33, 32.35 AssicurazioniGeneraliSpA v EgeSigorta A/S (Colman J, 31 July 2001, unreported) .… 7.23 Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq) (2000) 202 CLR 588 .… 33.34 Assunzione, The [1954] P 150 .… 19.29 Astley v Austrust Ltd (1999) 197 CLR 1 .… 20.35 Atco Industries (Aust) Pty Ltd v Ancla Maritima SA (1984) 35 SASR 408 .… 3.38 Atkinson Footwear Ltd v Hodgskin International Services Ltd (1994) 31 IPR 186 .… 32.39 Atlantic Star, The [1974] AC 436 .… 8.9 Atlasnavios Navegaçao v Ship Xin Tai Hai (No 2) [2012] FCA 1497 .… 8.47, 8.54, 9.15 Attorney-General (Alberta) v Cook [1926] AC 444 .… 13.8 Attorney-General (NSW) v Ray (1989) 90 ALR 263 .… 6.47 Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 .… 21.12 — v — (1988) 165 CLR 30 .… 2.29, 10.70, 18.1, 18.3, 18.5, 18.8, 18.22, 18.29, 18.32, 21.12 Attorney-General for Ceylon v Reid [1965] AC 720 .… 24.24, 24.30, 24.33, 24.36

Attorney-General of England and Wales v R [2002] NZLR 91 .… 14.40, 21.15 Attorney-General of New Zealand v Ortiz [1984] AC 1 .… 18.3, 18.24, 18.29, 18.30 Attorney-General v Kent (1862) 1 HL Cas 12 .… 13.24 — v Kevin (2003) 30 Fam LR 1 .… 24.1, 24.15, 24.16 — v McLean (1876) 14 SCR (NSW) 72 .… 13.7 — v Otahuhu Family Court [1995] 1 NZLR 603 .… 24.14 — v Parsons [1956] AC 421 .… 35.40 Attorney-General’s Reference (No 1 of 1987) (1987) 47 SASR 152 .… 33.28 Auckland Corporation v Alliance Assurance Co [1937] AC 587 .… 19.91 Augustus v Permanent Trustee Co (Canberra) Ltd (1971) 124 CLR 245 .… 21.12, 21.14, 34.17, 34.18, 34.21, 34.26 Aussie Home Security Pty Ltd v Sales Systems Australia Pty Ltd (2000) 172 ALR 141 .… 20.12 Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136; 173 ALR 619 .… 5.16–5.18, 5.20 Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 .… 5.2 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 .… 9.5, 9.6 — v Waterhouse (1991) 25 NSWLR 519 .… 6.36, 6.39, 6.43 Australian Commercial Research & Development Ltd v ANZ McCaughan Merchant Bank Ltd [1989] 3 All ER 65 — v — [1990] 1 Qd R 101 .… 3.38 Australian Commercial Research & Development Ltd v ANZ McCaughan Merchant Bank Ltd [1989] 3 All ER 65 .… 8.47, 8.57, 8.59 Australian Competition and Consumer Commission v Air New Zealand Ltd (No 10) [2013] FCA 322 .… 11.8 — v April International Marketing Services Australia Pty Ltd (No 6) (2010) 270 ALR 504 .… 3.45

— v April International Marketing Services Australia Pty Ltd [2009] FCA 735 . … 3.40, 3.107 — v Chaste Corporation Pty Ltd (in liq) [2002] FCA 1183 .… 3.36 — v Chen (2003) 132 FCR 309 .… 3.50 — v Kokos International Pty Ltd [2007] FCA 2035 .… 3.11, 3.36 — v Prysmian Cavi e Sistemi Energia SRL (2011) 283 ALR 137 .… 3.44 — v Prysmian Cavi e Sistemi Energia SRL (No 4) (2012) 298 ALR 251 .… 3.40, 3.44, 3.45 Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd (1990) 95 ALR 444 .… 11.20 Australian Federation of Islamic Councils Inc v Westpac Banking Corporation (1988) 17 NSWLR 623 .… 10.2, 10.9, 10.13, 10.20, 10.65 Australian Insurance Brokers Ltd v Hudig Langeveldt Pty Ltd (No 2) (1991) 7 WAR 343 .… 3.47, 3.89 Australian International Islamic College Board Inc v Kingdom of Saudi Arabia [2013] QCA 129 .… 10.18, 10.21 Australian Iron and Steel v Hoogland (1962) 108 CLR 471 .… 16.13 Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd (2001) 53 NSWLR 1 .… 11.20 Australian Mutual Provident Society v Gregory (1908) 5 CLR 615 .… 33.75, 33.76, 36.4 Australian Public Trustees Ltd (recs apptd) (in its capacity as trustee and/or responsible entity of Government Property Trust No 5) v Australian Public Trustees Ltd (recs apptd) (in its capacity as trustee and/or responsible entity of Government Property Trust No 3) (2012) 81 ACSR 236 .… 32.32 Australian Securities and Investment Commission v Activesuper Pty Ltd (2012) 92 ACSR 614 .… 36.66 — v Edensor Nominees Pty Ltd (2001) 204 CLR 559; 177 ALR 329 .… 5.16, 5.17, 5.20 — v Landy DFK Securities Ltd (2002) 123 FCR 548 .… 5.4, 5.5 — v Rich (2004) 49 ACSR 578 .… 11.20

— v Sweeney (No 2) (2001) 38 ACSR 743 .… 3.11, 3.36 Australian Securities Commission v Bank Leumi Le-Israel (1995) 134 ALR 101 .… 17.10 Australian Solar Mesh Sales Pty Ltd v Anderson (2000) 101 FCR 1 .… 5.4, 5.5 Australian Wool Innovation Ltd v Newkirk [No. 2] [2005] FCA 1307 .… 17.4 Australian Zircon NL v Austpac Resources NL (2010) 243 FLR 423 .… 16.22 Austrian Lloyd Steamship Co v Gresham Life Assurance Society Ltd [1903] 1 KB 249 .… 7.63, 7.67 AV & P Kemeny, In the Marriage of (1998) 23 Fam LR 105 .… 26.6 Avondale Motors (Parts) Pty Ltd v FCT (1971) 124 CLR 97 .… 36.53 Axon v Axon (1937) 59 CLR 395 .… 25.73 Aylmore dec’d, Re [1971] VR 375 .… 37.1 Ayres v Evans (1981) 39 ALR 129; 51 FLR 395 .… 18.14, 36.39–36.42 B B (Minor) (Abduction) (No 2), Re [1993] 1 FLR 993 .… 13.39, 28.55, 28.67 — [1994] 2 FLR 249 .… 28.55, 28.59 B (S) (An Infant), Re [1968] Ch 204 .… 30.9, 30.10 B, Re (1983) 9 Fam LR 40 .… 25.58 B-M (Wardship) (Jurisdiction), Re [1993] 1 FLR 979 .… 13.37, 28.61 B v B (1981) 7 Fam LR 1011 — v — (Abduction; Custody Rights) [1993] Fam 32 .… 28.61 Baba v Jarvinen (1980) FLC 90-882 .… 27.30 Babanaft International Co SA v Bassatne [1990] Ch 13 .… 4.20, 34.46 Babcock v Jackson (1963) 12 NY 2d 473 .… 12.14, 20.1 Baden v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1993] 1 WLR 509 .… 40.66 Baehr v Lewin (1993) 852 P 2d 44 .… 24.8 Baindail v Baindail [1946] P 122 .… 24.46

Bairstow v Queensland Industries Pty Ltd [1955] St R Qd 335 .… 30.34 Bajpayee v Ship Estancia [2003] FCA 1640 .… 5.7 Bajrami v Albania (12 December 2006, INCADAT HC/E/898) .… 28.41 Bak & Bak (1980) FLC 90-877 .… 27.29 Baker v General Motors Corp (1998) 522 US 222 at 232 .… 2.23 — v Vermont (1999) 744 A 2d 864 .… 24.8 Bakri Navigation Company Ltd v Owners of Ship ‘Golden Glory’ (1991) 217 ALR 152 .… 7.29 Balajan v Nikitin (1994) 35 NSWLR 51 .… 3.129, 38.44–38.46 Baldry (deceased), Re [2004] WTLR 609 (Fam) .… 38.2 — v Jackson [1976] 1 NSWLR 19 .… 3.10 — v Jackson [1977] 1 NSWLR 494 .… 20.45, 20.48 Ballabil Holdings Pty Ltd v Hospital Products Ltd (1985) 1 NSWLR 155 .… 4.22, 4.23, 4.26 Ballard v A-G (Vic) (2010) 30 VR 413 .… 34.19 Bamgbose v Daniel [1955] AC 107 .… 29.9 Banco Atlantico SA v British Bank of the Middle East [1990] 2 Lloyd’s Rep 504 .… 22.17 Banco de Bilbao v Sancha [1938] 2 KB 176 .… 35.29, 35.37 Banco de Portugal v Waddell (1880) LR 5 AC 161 .… 36.59, 36.61 Banco de Vizcaya v Don Alfonso de Borbon y Austria [1935] 1 KB 140 .… 18.16, 18.20 Bando Trading Co Ltd v Registrar of Titles [1975] VR 353 .… 23.10 Bangkok Bank Ltd v Swatow Lace Co Ltd [1963] NSWR 488 .… 11.22 Banh, In the Marriage of (1981) 6 Fam LR 643 .… 17.47, 25.23 Bank Mellat v Helliniki Techniki SA [1984] QB 291 .… 39.7, 39.10 Bank of Africa Ltd v Cohen [1909] 2 Ch 129 .… 19.55, 33.17–33.19, 38.10 Bank of New South Wales v Commonwealth Steel Co Ltd [1983] 1 NSWLR 69 .… 3.88

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… 23.18, 23.19 — v Piacun [1984] 2 Qd R 476 .… 40.33, 41.10, 41.16 Baring Bros & Co Ltd v Cunninghame DC [1997] CLC 108 .… 21.5 Barker, Re [1995] 2 VR 439 .… 38.32–38.34 Barlow’s Will, Re (1887) LR 36 Ch D 287 .… 31.8, 31.9 Barnes, Re; Ex parte Barnes v Makhoul (1994) 53 FCR 169 .… 36.54 — v Ministry of Defence (UK) (1997) 14 NSWCCR 450 .… 10.2, 10.25 Barraclough, In the Marriage of (1987) 11 Fam LR 773 .… 28.61 Barriga, In the Marriage of (No 2) (1981) FLC 91-088. .… 25.4, 25.33, 26.17, 26.41, 26.42, 26.44 Barrios and Sanchez, In the Marriage of (1989) 13 Fam LR 477 .… 28.26, 28.41 Barros Mattos Junior v Macdaniels [2005] ILPr 630; EWHC 1323 .… 21.5, 21.6 Barton v DCT (1974) 131 CLR 370 .… 36.53 Barton’s Estate, Tod v Barton, Re [2002] EWHC 264 .… 34.8, 34.28 Baschet v London Illustrated Standard Co [1900] 1 Ch 73 .… 16.44 Base Metal Trading Ltd v Shamurin [2005] 1 WLR 1157 .… 20.35, 21.15, 35.42 Basse, In the Will of [1909] VLR 313 .… 37.24 Bata v Bata (1948) 92 Sol Jo 574 .… 3.75 Batchelder v Kawamoto, 147 F 3d 915 (9th Cir, 1998) .… 35.44 Bateman v Service (1881) 6 App Cas 386 .… 35.39, 35.40 Bateman and Idameneo (No 123) Pty Ltd v Fairfax Media Publications Pty Ltd and Ors [2013] ACTSC 72 .… 6.28 Bath v British and Malayan Trustees Ltd (1969) 90 WN (NSW) (Pt 1) 44 .… 18.8, 18.12, 37.13, 37.37, 37.38 Battenberg v Restrom (2006) 149 FCR 128 .… 4.15, 36.50 — v — [2007] FCFCA 195 .… 13.36 Batthyany v Walford (1887) 36 Ch D 269 (CA) .… 21.5 Baxter, Re; Ex parte Official Receiver v Baxter (1986) 10 FCR 398 .… 42.34

Bazias 3, The [1993] QB 673 .… 5.15 BCBC Singapore Pte Ltd v PT Bayan Resources TBK (No 3) [2013] WASC 239 .… 4.6, 4.17–4.19, 40.42, 41.8 BCI Finances Pty Ltd v Commissioner of Taxation [2012] FCA 855 .… 11.19, 11.44 Beals v Saldanha [2003] 3 SCR 416 .… 40.8, 40.10, 40.22 Bear Stearns High-Grade Structure Credit Strategies Master Fund Ltd, Re (United States Bankruptcy Court, SDNY, 5 September 2007) .… 36.21 Beasley v State Government Insurance Commission (SA) (1988) 92 FLR 257 . … 10.2, 10.3 Beatty v Beatty [1924] 1 KB 807 .… 40.35 Beaudoin v Trudel [1937] 1 DLR 216 .… 27.12 Beaumont, Re [1893] 3 Ch 490 .… 13.13, 13.27 Beckford v Kemble (1822) 1 Sim & St 7; 57 ER 3 .… 3.134 — v Wade (1805) 17 Ves J 87; 34 ER 34 .… 16.12 Beer v Patrick (1880) 1 LR (NSW) 157 .… 40.57 Beidenhope v Cantanor [2011] FamCA 669 .… 8.21 Beldis, The [1936] P 51 .… 5.14 Belgenland, The, 114 US 355, 365–6 (1885) .… 8.8 Bell v Bell (1954) 73 WN (NSW) 7 .… 42.17, 42.20 — v Kennedy (1868) LR 1 Sc & Div 307 .… 13.4 Bell Group (in liq) v Westpac Banking Corporation (2004) 208 ALR 491 .… 6.6, 6.8, 6.9, 6.15, 6.19, 6.20, 6.52, 6.56, 11.20, 11.24, 11.25, 11.28, 11.34 Bella Products Pty Ltd v Creative Designs International Ltd (2009) 258 ALR 538 .… 8.51, 8.53 Bellinger v Bellinger [2003] UKHL 21 .… 24.14 Belmont v Fitzpatrick [1973] 2 NZLR 532 .… 41.5 Belyando Shire Council v Rivers (1908) QWN 17 .… 3.54 Benarty, The [1984] 2 Lloyd’s Rep 244 .… 7.43

Benefit Strategies Group Inc v Prider (2005) 91 SASR 544 .… 18.18, 40.44, 40.60, 40.62, 40.66, 40.73, 40.81, 40.89, 41.2 — v — (2007) 211 FLR 113 .… 40.2, 40.33, 40.34 Benko, Re [1968] SASR 243 .… 13.9 Berchtold, Re [1923] 1 Ch 192 .… 32.5, 32.10, 32.11 Berdan v Greenwood (1880) 20 Ch D 764 .… 11.22 Berezovsky v Abramovich [2011] EWCA Civ 153 .… 34.16, 34.18, 34.21 — v Michaels [2000] 2 All ER 986 (HL) .… 3.75 Berger, dec’d, Re [1990] Ch 118 .… 38.22 Bergerem v Marsh (1921) 125 LT 630 .… 36.5 Berisford plc v New Hampshire Insurance Co [1990] 2 QB 631 .… 7.60, 7.65, 7.83 Berkovits v Grinberg [1995] 2 All ER 681 .… 26.25 Berny, The [1979] QB 80 .… 5.12 Berriman v Cricket Australia (2007) 17 VR 528 .… 16.10 Berthiaume v Dastous [1930] AC 79 .… 25.2, 25.4 BEST Australia Ltd v Aquagas Marketing Pty Ltd (1988) 83 ALR 217 .… 3.49 Betta Cones Co Pty Ltd v Microbyte Investments Pty Ltd [1993] ACL Rep 185 Vic 10 .… 4.22, 4.23 Bettle, Ex parte (1895) 14 NZLR 129 .… 36.4 Betty Ott, The v General Bills Ltd [1992] 1 NZLR 655 .… 16.43, 33.72 Beximco Pharmaceuticals Ltd v Shamil Bank of Bahrain [2004] 1 WLR 1784 . … 19.7, 19.16 BHP Billiton Ltd v Schultz (2004) 221 CLR 400 .… 3.24, 5.2, 5.3, 5.19, 6.1, 6.5, 6.13, 6.16, 6.24, 6.28, 6.30, 6.31, 6.34, 6.52, 8.2 BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725 .… 3.66, 3.84, 3.94, 3.97, 19.17, 35.17, 35.18, 35.20 BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169 .… 7.21, 7.32, 7.33, 7.36, 9.1, 10.15, 39.2

— v — (No 4) (2009) 263 ALR 63 .… 23.11, 23.12, 23.13, 23.20 Bialkower v Acohs Pty Ltd (1998) 83 FCR 1 .… 5.16 Biota Holdings Ltd v Glaxo Group Ltd [2006] VSC 71 .… 11.40 Bischoffsheim, Re [1948] Ch 79 .… 29.8, 29.10 Bishop v Bishop [1971] 1 NSWLR 300 .… 26.41 Biskra, The [1983] 2 Lloyd’s Rep 59 .… 7.36 Bisso v Inland Waterways Corp 349 US 85 (1955) .… 7.44, 7.45 Black v Yates [1992] 1 QB 526 .… 40.49, 40.50, 41.11 Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 .… 14.26, 40.51, 41.31 — v — [1981] 2 Lloyd’s Rep 446 .… 39.2, 39.4 Blackett v Darcy (2005) 62 NSWLR 392 .… 13.19 Blackman & Co v Oliver Davey Glass Co [1966] VR 570 .… 7.80 Blackmer v United States, 284 US 421 (1932) .… 11.8 Blackwood v R (1882) 8 App Cas 82 .… 37.5 Blain, Ex parte (1879) 12 Ch D 522 .… 36.50 Blair v Blair [1968] 3 All ER 639 .… 26.43 Blair and Jenkins, In the Marriage of (1988) 12 Fam LR 85 .… 28.29 Blake v Norris (1991) 20 NSWLR 300 .… 6.14 Bliersbach v McEwen (1959) SC 43 .… 25.3 Blithmann, Re (1866) LR 2 Eq 23 .… 36.3, 36.30 Blohn v Desser [1962] 2 QB 116 .… 40.19, 40.31, 40.37 Blue Sky One Ltd v Mahan Air [2011] 1 Lloyd’s Rep Plus 6 .… 15.15 Blue Wave, The [1982] 1 Lloyd’s Rep 151 .… 7.20, 7.86 Blunden v Commonwealth (2003) 218 CLR 330 .… 5.16, 5.22, 5.23, 12.5, 20.75–20.77 Blyth, Re [1997] 2 Qd R 567 .… 34.13, 38.21, 38.23, 38.27 Board of Directors of Rizzo-Bottiglieri-de Carlini Armatori Spa (as debtor in

possession of Rizzo-Bottiglieri-de Carlini Armatori Spa) v Rizzo-Bottiglieride Carlini Armatori Spa [2013] FCA 157 .… 36.13 Bodley Head Ltd, The v Flegon [1972] 1 WLR 680 .… 19.52, 19.84 Boele v Norsemeter Holding AS [2002] NSWCA 363 .… 17.45, 40.13, 40.15, 40.44, 40.58, 40.62, 40.82, 40.84, 40.85 Bofinger v Kingsway (2009) 239 CLR 269 .… 21.1 Bogart Lingerie Ltd v Steadmark Pty Ltd [2013] VSC 212 .… 7.32, 8.29, 8.61 Bonacina, Re [1912] 2 Ch 394 .… 19.71 Bond, Re; Ex parte Hong Kong Bank of Australia Ltd (1991) 105 ALR 581 .… 36.54 — (1992) 34 FCR 453 .… 36.54 Bond Brewing Holdings Ltd v Crawford (1989) 1 WAR 517 .… 6.12, 42.28, 42.29 Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 71 ALR 125 .… 5.17 Bondholders Securities Corporation v Manville [1933] 4 DLR 699 .… 22.7, 33.67 Bonelli, Goods of (1875) LR 1 PD 69 .… 17.23 Bonkowsky v Bonkowsky [1960] NSWR 251 .… 17.27 Bonny v Society of Lloyd’s 3 F 3d 156 (1993) .… 7.47 Bonython v Commonwealth (1948) 75 CLR 589 .… 23.2, 23.7, 23.9 — v — [1951] AC 201 .… 19.28, 19.90, 23.1, 23.4, 23.5 Boocock v Hilton International Co [1993] 4 All ER 19 .… 3.38 Borch v Answer Products Inc [2000] QSC 379 .… 3.37, 3.42, 3.82 Borg Warner (Aust) Pty Ltd v Zupan [1982] VR 437 .… 2.26, 20.42, 20.46 Boswell v Coaks (No 2) (1894) 6 R 167 .… 40.71 Bourke, Re [1928] 1 DLR 318 .… 32.11 — v State Bank of New South Wales (1988) 85 ALR 61 .… 6.21 Bouton v Labiche (1994) 33 NSWLR 225 .… 30.26, 30.30

Bouygues Offshore SA v Caspian Shipping Co (Nos 1, 3, 4 and 5) [1998] 2 Lloyd’s Rep 461 .… 7.89 Bowden Bros & Co v Imperial Marine and Transport Insurance Co (1905) 5 SR (NSW) 614 .… 17.37 — v — (1902) 2 SR (NSW) 257 .… 35.16 Bowling v Cox [1926] AC 751 .… 3.54 Bowtell v Commonwealth (1989) 86 ALR 31 .… 5.21 Boyd v Leslie [1964] VR 728 .… 37.6 Boyle v Sacker (1888) 39 Ch D 249 .… 3.113 Boys v Chaplin [1971] AC 356 .… 12.16, 12.17, 20.2 BP Australia v Wales [1982] Qd R 386 .… 3.70 BP Exploration Co (Libya) Ltd v Hunt [1980] 1 NSWLR 496 .… 17.41, 41.8 — v — (No 2) [1979] 1 WLR 783 .… 23.12 — v — [1976] 3 All ER 879 .… 3.36, 3.55 BP plc v National Union Fire Insurance Co [2004] EWHC 1132 .… 19.9 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 .… 19.22 Brabender v Brabender [1949] VLR 69 .… 13.7 Bradford v Bradford [1943] SASR 123 .… 13.7 Bradford Electric Light Co v Clapper (1932) 286 US 145 .… 2.21 Braes of Doune Wind Farm (Scotland) Ltd v Alfred McAlpine Business Services Ltd [2008] 1 Lloyd’s Rep 608 .… 39.7 Brailey v Rhodesia Consolidated Ltd [1910] 2 Ch 95 .… 17.24 Brassard v Smith [1925] AC 541 .… 32.42 Braun v The Custodian [1944] 3 DLR 412 .… 32.43, 33.37 Bray v F Hoffmann-La Roche Ltd (2002) 118 FCR 1 — v — (2003) 130 FCR 317 .… 3.44, 3.45, 3.49, 35.22 Bray v F Hoffmann-La Roche Ltd (2002) 118 FCR 1 .… 35.22, 35.24

BRC Piling Pty Ltd v Trans Pacific Shipping Co [1992] 2 VR 686 .… 6.38 Breavington v Godleman (1988) 169 CLR 41 .… 1.2, 1.16, 1.24, 2.2, 2.6, 2.10, 2.11, 2.14, 2.15, 2.24, 2.26–2.28, 5.20, 5.23, 8.1, 9.24, 12.5, 12.18, 12.21–12.23, 16.14, 42.33 Breen v Breen [1964] P 144 .… 25.38 Bremer v Freeman (1857) 10 Moo PC 306 .… 17.5, 38.2, 38.4 Brent v Chapman (1809) 9 US (5 Cranch) 358 .… 16.12 Brereton v Milstein [1988] VR 508 .… 4.23 Bright v Femcare Ltd (2000) 175 ALR 50 .… 20.62 Brinkibon Ltd v Stahag Stahl Gmbh [1983] 2 AC 34 .… 3.60 Bristow v Sequeville (1850) 5 Exch 275 .… 17.22, 19.58 British Aerospace plc v Dee Howard Co [1993] 1 Lloyd’s Rep 368 .… 7.65, 7.83 British Airways Board; British Caledonian Airways Ltd v Laker Airways Ltd [1985] AC 58 .… 9.31 British American Tobacco Australia Services Ltd v Eubanks, for the United States of America (2004) 60 NSWLR 483 .… 11.15, 11.21, 11.40, 11.50, 11.52 — v Western Australia (2003) 217 CLR 30 .… 5.2, 5.16, 5.17, 5.23, 20.11 British and French Trust Corporation v New Brunswick Ry Co [1937] 4 All ER 516 .… 19.91 British Controlled Oil Fields v Stagg [1921] WN 319 .… 19.18 British Nylon Spinners Ltd v ICI Ltd [1953] Ch 19 .… 18.31, 18.48 British South Africa Co v Companhia de Moçambique [1893] AC 602 .… 3.1, 3.118, 3.140 — v De Beers Consolidated Mines Ltd [1910] 2 Ch 502; [1912] AC 52 .… 33.9 Brix–Neilson v Oceaneering Australia Pty Ltd [1982] 2 NSWLR 173 .… 3.73 Broadbent v Medical Board of Queensland (2011) 195 FCR 438; 282 ALR 96 . … 5.20 Brockley Cabinet Co Ltd v Pears (1972) 20 FLR 333 .… 41.16

Brockmeyer v May, 383 F 3d 798 (9th Cir 2004) .… 3.34, 11.6 Brodie v Singleton Shire Council (2001) 206 CLR 512 .… 20.27 Broken Hill Pty Ltd v Potter (1906) 3 CLR 4 .… 3.1 Brook v Brook (1861) 9 HLC 193 .… 25.24 Brown, Re [1895] 2 Ch 666 .… 31.8 — v Beleggings Societeit NV (1961) 29 DLR (2d) 673 .… 33.37 — v Brown (1933) 50 WN (NSW) 33 .… 13.25 — v Brown [1963] NSWR 1371 .… 26.63 — v Gregson [1920] AC 860 .… 38.57 — v Kalal (1986) 7 NSWLR 423 .… 13.37, 28.14, 28.15 — v Lemeki and Papua New Guinea [1997] HREOCA 25 .… 10.24, 10.57 Brown Boveri (Australia) Pty Ltd v Baltic Shipping Co (1989) 15 NSWLR 448 .… 23.8, 23.11, 23.12, 23.15 Browne v Browne [1917] NZLR 668 .… 13.19 Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 .… 2.32 Buchanan, Re; Ex parte Mervac Finance Ltd (1991) 31 FCR 135 .… 36.54 — v Rocker (1808) 9 East 192 .… 25.58, 40.84 Buciu v Sabau (1997) 22 Fam LR 75 .… 13.27, 25.34, 25.47 Buck v Attorney-General [1965] Ch 745 .… 10.70 Bucknell, Ex parte (1936) 56 CLR 221 .… 8.31 Bui v DPP (Cth) (2012) 244 CLR 638; 284 ALR 445 .… 5.16, 5.18 Buisson v Warburton (1873) 4 AJR 43 .… 36.30 Bulger, Re (1911) 19 WLR 573 .… 31.1 Bulk Chartering & Consultants Australia Pty Ltd v T & T Metal Trading Ltd (The ‘Krasnogorsk’) (1993) 31 NSWLR 18 .… 39.2 Bulldogs Rugby League Club Ltd v Williams [2008] NSWSC 822 .… 3.11, 3.50, 3.111 Bulong Nickel Pty Ltd, Re (2002) 26 WAR 466 .… 19.17, 40.80

Bumper Development Corporation Ltd v Commr of Police of the Metropolis [1991] 4 All ER 638; [1991] 1 WLR 1362 .… 16.36, 17.31, 17.33, 35.32 Bunbury v Bunbury (1839) 1 Beav 318; 48 ER 963 .… 37.23 Burbidge, Re [1902] 1 Ch 426 (CA) .… 31.1 Burmine Ltd v Mount Edon Gold Mines (Australia) Ltd (1993) 12 ACSR 360 . … 35.10 Burnfiel v Burnfiel [1925] 3 DLR 935 .… 26.47 Burnham v Superior Court, 495 US 604 (1990) .… 3.7 Burns v Minister for Health [2012] WASCA 267 .… 16.13 Buron v Denman (1848) 2 Exch 167 .… 10.69 Burpee v Burpee [1929] 3 DLR 18 .… 40.13 Bushfield Aircraft Co v Great Western Aviation Pty Ltd (1996) 16 SR(WA) 97 . … 40.8, 40.10, 40.13 Busst v Lotsirb Nominees Pty Ltd [2003] 1 Qd R 477 .… 19.30, 19.33 Butchart, Re [1932] NZLR 125 .… 38.42, 38.43 Butler, Re [1969] QWN 48 .… 37.6 Buttes Gas and Oil v Hammer [1982] AC 888 .… 10.73, 10.75, 10.80, 10.82 Buttigeig v Universal Terminal and Stevedoring Corporation [1972] VR 626 .… 3.74, 20.6, 20.9 Buzzacott v Gray [1999] FCA 1525, BC9907149 .… 10.30 Byrnes v Groote Eylandt Mining Co Pty Ltd (1990) 19 NSWLR 13 .… 16.13 C C (An Infant), Re [1959] Ch 363 .… 10.51 — In re (1981) 8 Fam LR 257 .… 28.13 C and C, In the Marriage of (1998) 23 Fam LR 491 .… 25.70 C and the Adoption Act 2000, Re (NSW) [2007] NSWSC 768 .… 30.16, 30.37 C v C (Abduction: Rights of Custody) [1989] 2 All ER 465 .… 28.59, 28.71, 28.77

— v — (Ancillary Relief: Nuptial Settlement) [2004] EWCA Civ 1030 .… 34.31, 34.35 C v D [2007] EWHC 1541 .… 39.4, 39.8 — v — [2008] 1 Lloyd’s Rep 329 .… 39.1, 39.3, 39.8 Cabassi, Re [1955] QWN 71 .… 28.15 Cadet v Stevens (1966) 40 ALJR 171 .… 5.2 Cain, in the Marriage of (1987) 11 Fam LR 540 .… 27.24, 27.31, 27.41 Caldwell v Caldwell [1946] SASR 185 .… 13.38, 26.47 Callaghan dec’d, Re [1948] NZLR 846 .… 13.16 Callwood v Callwood [1960] AC 659 .… 17.5, 27.20, 27.21 Cambridge Credit Corp Ltd v Lissenden (1987) 8 NSWLR 411 .… 20.51, 32.36 Cambridge Gas Transportation v Official Committee of Unsecured Creditors of Navigator Holdings plc [2007] 1 AC 508 .… 36.1, 40.28 Camdex International Ltd v Bank of Zambia (No 2) (1997) Times 28 January 1997 — v — (No 3) [1997] CLC 714 .… 18.29, 23.14 Cammell v Sewell (1860) 5 H & N 728 .… 22.22, 33.22, 33.43, 33.48, 40.28 Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386 .… 33.68 Campos v Kentucky and Indiana Terminal Railroad Co [1962] 2 Lloyd’s Rep 459 .… 23.8 Canadian Pacific Railway Co v Parent [1917] AC 195 .… 20.36 Canning v Brown (1867) 6 SCR (NSW) (L) 169 .… 17.23 Cannon Screen Entertainment Ltd v Handmade Films (Distributors) Ltd (11 July 1989, unreported) .… 7.65 Cannon Street Pty Ltd v Karedis [2007] 1 Qd R 505 .… 19.81 Canton, Re [1924] VLR 237 .… 37.3 Cap Blanco, The [1913] P 130 .… 7.63 Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd (2013)

298 ALR 666 .… 7.5, 7.75, 39.1 Capon, Re (1965) 49 DLR (2d) 675 .… 26.48 Carbotrade SpA v Bureau Veritas 99 F 3d 86 1997 AMC 98 (2d Cir 1996) .… 20.76 Carbulon v Carbulon (1944) 57 NE 2d 59 .… 26.47 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 .… 3.97, 4.6, 4.16, 4.18, 4.27, 9.6, 40.40 Carey v Australian Broadcasting Corporation (2010) 77 NSWLR 136 .… 20.16 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 .… 17.6, 33.52, 35.38, 35.39, 40.2, 40.36, 40.45, 40.47, 40.52, 40.53, 40.55, 40.91 Carlaw, Re [1966] 1 NSWR 148 .… 38.39 Carlton, Re [1924] VLR 237 .… 37.16 Carlyle Capital Corporation Ltd v Roberts Guernsey (2012) Judgment 39/2012 . … 9.18 Carmona v White (1980) 25 SASR 525 .… 29.10 Carnegie Corporation v Pursuit Dynamics Plc (2007) 162 FCR 375 .… 4.2 Carr v Fracis Times & Co [1902] AC 176 .… 10.71 Carrick Estates Ltd v Young [1988] 1 WWR 261 .… 40.14 Carroll v Lanza (1955) 349 US 408 .… 2.22 Carron Iron Co v Maclaren (1855) 5 HL Cas 416 .… 9.2, 9.26 Carter v Carter [1932] NZLR 1104 .… 25.3 Cartier, Re [1952] SASR 280 .… 13.7, 13.23, 13.26 Carvalho v Hull, Blyth (Angola) Ltd [1979] 1 WLR 1228 .… 7.28, 7.77, 7.86, 7.88 Casaceli v Natuzzi Spa (2012) 292 ALR 142 .… 7.55 Casdagli v Casdagli [1919] AC 145 .… 1.15, 13.5, 13.6 Cash v Nominal Defendant (1969) 90 WN (NSW) Pt 1 77 .… 37.6–37.8 Cashel v Carr (2005) 34 Fam LR 256 .… 26.6 Castel Electronics Pty Ltd v TCL Airconditioner (Zhongshan) Co Ltd [2013]

VSC 092 .… 3.41, 43.9, 43.10 Castillon v P & O Ports Ltd (No 2) [2008] 2 Qd R 219 .… 40.53 Castree v Squibb Ltd [1980] 2 All ER 589 .… 3.74 Castrique v Imrie (1870) LR 4 HL 414 .… 33.22, 40.27, 40.28 Caswell v Sony/ATV Music Publishing (Australia) Pty Ltd [2012] NSWSC 986 .… 4.9, 4.11, 11.5, 11.7, 11.8, 11.35, 11.36 Caterpillar Inc v Lewis, 519 US 61 (1996) .… 5.2 Catterall v Catterall (1847) 1 Rob Eccl 580 .… 25.8, 25.9 CBS United Kingdom Ltd v Lambert [1983] Ch 37 .… 4.22 CDJ v VAJ (1998) 197 CLR 172 .… 28.18 CE Heath Underwriting & Insurance (Australia) Pty Ltd v Barden (SC (NSW), Rolfe J, 19/10/94, BC9403144, unreported) .… 8.60 Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365 .… 3.44, 3.49 Celtic Resources Holdings plc v Arduina Holding BV (2006) 32 WAR 276 .… 4.6, 4.18, 4.19, 40.41, 40.42 Censori v Holland [1993] 1 VR 509 .… 42.30 Central Authority v Perry (1995) 20 Fam LR 380 .… 28.67 Centrebet Pty Ltd v Baasland (2012) 272 FLR 69 .… 3.38, 3.43, 3.58, 40.23 Century Yuasa Batteries Pty Ltd v Turek [2004] QSC 271 .… 8.53 Chaff and Hay Acquisition Committee v JA Hemphill & Sons Pty Ltd (1947) 74 CLR 375 .… 16.36, 35.30, 35.31 Challenor v Douglas [1983] 2 NSWLR 405 .… 3.73 Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245 .… 40.56 Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334 . … 4.5, 9.3, 39.1 Chaparral, The [1972] 407 US 1 .… 7.44, 7.51, 7.61, 7.85, 7.86 Chaplin v Boys [1971] AC 356 .… 14.47 Chapman v Luminis Pty Ltd (1998) 86 FCR 513 .… 5.16

— v Travelstead (1998) 86 FCR 460 .… 36.27, 36.28, 36.31 Chapman and Jansen, In the Marriage of (1990) 13 Fam LR 853 .… 6.26 Chapman Marine Pty Ltd v Wilhelmsen Lines A/S [1999] FCA 178 .… 17.2 Chappel v Hart (1998) 195 CLR 232 .… 20.31 Charles T Dougherty Co Inc v Krimke, 144 A 617 (1929) .… 33.46 Charm Maritime Inc v Kyriakou [1987] 1 Lloyd’s Rep 433 .… 40.56 Charron v Montreal Trust Co (1958) 15 DLR (2d) 240 .… 19.51, 19.53, 33.67, 37.7, 37.8 Chase Manhattan Bank v New Hampshire Insurance Co 749 NYS 2d 632 (NY Sup 2002) .… 8.59 Chase Manhattan Bank NA v Israel-British Bank (London) Ltd [1981] Ch 105 . … 16.2, 21.5, 21.6, 21.14 Chatard’s Settlement, Re [1899] 1 Ch 712 .… 28.87 Chatenay v Brasilian Submarine Telegraph Co [1891] 1 QB 79 .… 19.89 Chaudhary v Chaudhary [1985] Fam 19 .… 26.70 Chaudhry v Chaudhry [1976] Fam 148 .… 24.48 Chellaram v Chellaram [1985] Ch 409 .… 34.11, 34.19, 34.23, 34.25, 34.38 Chen v Tan [2012] FamCA 225 .… 8.21, 8.27, 27.26, 27.31, 27.41 Cheni v Cheni [1965] P 85 .… 24.26, 24.30, 24.33, 25.41 Chenoweth Summers [1941] Arg LR(CN) 364a .… 3.54 Cherry v Cherry [1971] 1 SASR 148 .… 26.7, 26.9 Chesterman’s Trusts, Re [1923] 2 Ch 466 .… 23.7 Chetti v Chetti [1909] P 67 .… 25.3, 25.41 Chief Collector of Taxes Papua New Guinea v TA Field Pty Ltd (1975) 49 ALJR 351 .… 23.11 Chief Commr of Stamp Duties v Paliflex Pty Ltd (1999) 47 NSWLR 382 .… 32.19 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161; 201 ALR 1 .… 5.16

Children’s Law Reform Act, the Matter of, de Martinez v Martinez-Jarquin (Ontario, 18 July 1990, INCADAT HC/E/CA368) .… 28.41 China Shipping (Australia) Agency Co Pty Ltd v Kelly Pty Ltd (2010) 79 NSWLR 650 .… 5.13 China Sichuan Chanhong Electric Company Ltd v CTA International Pty Limited [2009] FCA 397 .… 43.6 Chiwell v Carlyon (1897) 14 SC 61 (South Africa) .… 27.17 Choice Investments Ltd v Jeromnimon Midland Bank Ltd, Garnishee [1981] QB 149 .… 23.14, 23.21 Chong, In the Marriage of (1992) 15 Fam LR 629 .… 28.20 Chow Cho Poon (Private) Ltd, Re (2011) 80 NSWLR 507 .… 36.13, 36.37 Chowdhury v Mitsui OSK Lines Ltd [1970] 2 Lloyd’s Rep 272 .… 7.42 Christofaro v Christofaro [1948] VLR 193 .… 12.13, 14.4, 25.73 Christos, The [1977] 1 Lloyd’s Rep 109 .… 7.36 Chubb Insurance Co of Australia Ltd v Moore [2013] NSWCA 212 .… 2.3, 19.3 Citi-March Ltd v Neptune Orient Lines Ltd [1996] 2 All ER 545 .… 7.89 Clague v Graves (1987) 11 Fam LR 494 .… 28.27 Clarke v Clarke [1964] VR 773 .… 13.38 — v Lo Bianco (1991) 59 BCLR (2d) 334 .… 40.9 Cleaver v Delta American Reinsurance Co (in liq) [2001] 2 AC 328 .… 36.59 Close v Arnot (SC (NSW), Graham AJ, 21 November 1997, 10107/96, BC9706194, unreported) .… 40.6, 40.72, 40.73, 41.19 Clough Engineering Ltd v Oil & Natural Gas Company of India (2008) 249 ALR 458 .… 7.40, 7.47, 19.13, 19.47, 19.48 Club Resorts Ltd v Van Breda [2012] 1 SCR 572 .… 40.9 Clunies-Ross, Re; Ex parte Totterdell (1987) 72 ALR 241 .… 3.125, 4.23 — (1988) 20 FCR 358 .… 36.43 Clyne v Federal Commr of Taxation (No 2) (1981) 57 FLR 198 .… 17.24 Coast Lines Ltd v Hudig & Veder Chartering NV [1972] 2 QB 34 .… 7.43,

19.35, 19.37 Coates as Liquidator of Campus Holidays Ltd v Charles Porter & Sons Pty Ltd (1990) 2 ACSR 733 .… 3.71 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 .… 16.22, 19.22, 19.25 Cohn, Re [1945] Ch 5 .… 12.15, 14.29, 17.15 Coin Controls Ltd v Suzo International (UK) Ltd [1999] Ch 33 .… 32.38 Colbert v Tocumwal Trading Co Pty Ltd [1964] VR 820 .… 3.115 Coleman v Shang [1961] AC 481 .… 24.48 Collens, Re [1986] Ch 505 .… 38.7 Collier v Rivaz (1841) 2 Curt 855 .… 15.17, 15.22, 17.5 Collins v A-G (1931) 47 TLR 484 .… 29.29 Colonial Bank v Cady (1890) 15 App Cas 267 .… 32.45, 33.37 Colorado, The [1923] P 102 .… 16.42 Colosseum Investment Holdings Pty Ltd v Vanguard Logistics Services Pty Ltd [2005] NSWSC 803 .… 3.73, 3.88, 8.27, 8.29 Colt Industries Inc v Sarlie (No 2) [1966] 3 All ER 85 .… 40.32 Comandate Marine Corporation v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45 .… 5.11, 5.15, 6.19, 7.3, 7.27, 7.53, 7.55, 7.75, 19.13, 39.1 — v Ship Boomerang 1 (2006) 151 FCR 403; 234 ALR 169 .… 5.9, 5.12 Commercial Bank of South Australia, Re (1887) 36 Ch D 522 .… 22.17, 22.28 Commercial Union Assurance Co Plc v NRG Victory Reinsurance Ltd [1998] 1 Lloyd’s Rep 80 .… 19.9 Commissioner of Police (WA) v Dormann (1997) FLC 92-766 .… 28.67, 28.73 Commissioner of Succession Duty v Hargrave(1972) 3 SASR 118 .… 16.38 Commissioner of the Australian Federal Police v Nguyen [2013] NSWSC 179 . … 6.30 Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 .… 5.22 — v Dixon (1988) 13 NSWLR 601 .… 5.23

— v Mewett (1997) 191 CLR 471 .… 5.16, 5.22, 5.23 — v Verwayen (1990) 170 CLR 394 .… 16.13 — v Woodhill (1917) 23 CLR 482 .… 3.122 — v Yarmirr (2001) 200 CLR 1 .… 32.15 Commonwealth Bank of Australia v White; ex parte The Society of Lloyd’s [1999] 2 VR 681 .… 3.41, 3.66, 3.82, 7.27, 7.40, 7.47, 20.61 — v — (No 3) [2000] VSC 259 .… 8.53, 9.1 — v — (No 4) [2001] VSC 511 .… 3.82, 40.56 — in the matter of Oswal [2013] FCA 391 .… 4.16 Commonwealth Development Corp (UK) Ltd v Montague [2000] QCA 252 .… 43.8 Commr for Railways (Qld) v Peters (1991) 24 NSWLR 407 .… 5.20, 5.23 Commr of Stamp Duties v Salting [1907] AC 449 .… 32.37 Commr of Stamp Duties (NSW) v Owens (No 2) (1953) 88 CLR 168 .… 5.17 Commr of Stamp Duties for Queensland v Livingston [1965] AC 694 .… 32.37 Commr of Stamps v Hope [1891] AC 476 .… 32.25 Commr of State Taxation (WA) v Mechold Pty Ltd (1995) 30 ATR 69 .… 4.23 Commr of Taxation v Energy Resources of Australia (1994) 54 FCR 25 .… 23.9 — v Karageorge (1996) 34 ATR 196 .… 4.23 — v Lamesa Holdings BV (1997) 77 FCR 597 .… 32.5 — v Ma (1999) 92 FCR 569 .… 35.20 — v Oswal [2012] FCA 1507 .… 3.37, 3.44 Compagnie des Messageries Maritimes v Wilson (1954) 94 CLR 577 .… 7.41, 7.42, 12.23, 19.40 Compagnie Tunisienne de Navigation SA v Compagnie d’Armement Maritime SA [1971] AC 572 .… 7.12, 19.8, 19.22, 19.26, 19.27, 19.32, 39.3, 43.8 Compania Merabello San Nicholas SA, Re [1973] Ch 75 .… 36.67, 36.71 Conagra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302 .… 20.19

Conagra International Fertiliser Co v Lief Investments Pty Ltd (1997) 141 FLR 124 .… 8.48 Concha v Murietta (1889) 40 Ch D 543 .… 17.33 Conley v FCT (1998) 81 FCR 24 .… 23.15 Connelly v RTZ Corporation Plc [1998] AC 854 .… 8.9, 8.11 Connop v Varena Pty Ltd [1984] 1 NSWLR 71 .… 41.11 Connor v Connor [1974] 1 NZLR 632 .… 18.14, 18.15, 41.16 Constantinou v Constantinou (2012) 271 FLR 276 .… 37.23, 37.28 Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2007) 157 FCR 260 .… 5.3 Consumers Trust, in the matter of; ex parte Rubin [2009] EWHC 2129 .… 36.14 Continental Bank NA v AeakosCompaniaNaviera SA [1994] 1 WLR 588 .… 7.65, 7.72 Cook v Gregson (1854) 2 Drew 286; 61 ER 729 .… 16.42 Cook Industries Inc v Galliher [1979] Ch 439 .… 4.16 Cooke v The Charles A Vogeler Co [1901] AC 102 .… 36.50, 36.51 Coombs & Barei Constructions Pty Ltd v Dynasty Pty Ltd (1986) 42 SASR 413 .… 4.23 Cooper v Casey (1995) 18 Fam LR 433 .… 13.35, 13.36, 13.39, 28.42 — v Makita USA Inc, 117 FRD 16 (D Me 1987) .… 3.34, 11.6 Cooper-King v Cooper-King [1900] P 65 .… 17.27 Coote, Petitioning Creditor, Re; Re Reference by Registrar in Bankruptcy (1993) 47 FCR 522 .… 36.50, 36.55 Copin v Adamson (1875) LR 1 Ex D 17 .… 40.18 Corbett v Corbett (orse Ashley) [1971] P 83 .… 24.6, 26.50, 26.51, 26.71 Corcoran v Corcoran [1974] VR 164 .… 12.14, 12.17, 12.23, 20.1, 20.67 Cordoba Shipping Co Ltd v National State Bank (The Albaforth) [1984] 2 Lloyd’s Rep 91 .… 3.76 Corin v Corin (1991) 7 SR (WA) 124 .… 13.35, 13.39, 28.5, 28.14, 28.15

Cornelius v Banque Franco-Serbe [1941] 2 All ER 728 .… 22.32, 22.34 Corvetina Technology Ltd v Clough Engineering Ltd (2004) 183 FLR 317 .… 43.11 Corvisy v Corvisy [1982] 2 NSWLR 557 .… 3.123 Costa Vraca Pty Ltd v Bell Regal Pty Ltd [2003] FCAFC 305 .… 3.86 Cote, Ex parte (1873) LR 9 Ch App 27 .… 22.13 Coupland v Arabian Gulf Oil Co [1983] 2 All ER 434 .… 20.35 Courageous Coloctronis, The [1979] WAR 19 .… 8.12 Courtney, Re; Ex parte Pollard (1840) Mont & Ch 239 .… 33.11, 33.14, 33.18 Couzens v Negri [1981] VR 824 .… 3.132 Cox v Ergo Versicherung AG [2012] EWCA Civ 854 .… 14.6 — v Journeaux (1934) 52 CLR 282 .… 5.2 Craig, Re (1916) 86 LJ Ch 62 .… 36.5 Crandell v Servier Laboratories (Aust) Pty Ltd [1999] FCA 1461 .… 6.9 Cranstown v Johnston (1796) 3 Ves 170 .… 3.136 Craven’s Estate (No 1), Re [1937] Ch 423 .… 33.32 Crawford (dec’d), Re Estate of (2004) 90 SASR 119 .… 38.34 Credit Lyonnais v NH Insurance Co [1997] 2 Lloyd’s Rep 1 .… 19.33 Crédit Suisse Financial Products v Société Générale d’Enterprises [1997] CLC 168 .… 7.23 Crick v Hennessy [1973] WAR 74 .… 40.22, 41.14, 41.16 Crispin, Ex parte (1873) LR 8 Ch 374 .… 36.50–36.52 Cristofaro v Cristofaro [1948] VLR 193 .… 25.4 Croker v Cmr of Taxation [2003] FCAFC 23 .… 42.7 Crook, Re (1936) 36 SR (NSW) 186 .… 32.8 Crosby v Kelly (2012) 203 FCR 451 .… 5.4 Crouch v Commr for Railways (Qld) (1985) 159 CLR 22 .… 5.20 — v — (1989) 85 ALR 347 .… 5.3

Crowe v Kader [1968] WAR 122 .… 24.37, 24.43 Cruh v Cruh [1954] 2 All ER 545 .… 13.19 Cruise Lines Inc v Shute 499 US 585 (1991) .… 7.85 Cruse v Chittum [1974] 2 All ER 940 .… 13.39 Cryonic Medical, Re [2002] VSC 338 .… 41.1 CSL Australia Pty Ltd v Formosa (2010) 261 ALR 441 .… 5.6 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 .… 8.44, 8.46–8.50, 8.52, 8.59, 9.4, 9.5, 9.8–9.11, 9.14, 9.26, 9.27, 9.32, 14.23, 18.21 — v NZ Insurance Co Ltd (1994) 36 NSWLR 138 .… 9.1, 9.15 Cuban Atlantic Sugar Sales Corporation v San Elefterio (C/V) Ltd [1960] 1 QB 187 .… 3.72 Cunnington, Re [1924] 1 Ch 68 .… 38.21, 38.24 Currie, Will of (1899) 25 VLT 224 .… 32.35 — v Bircham (1822) 1 Dowl & Ry KB 35 .… 37.22 Curtin University of Technology v Woods Bagot Pty Ltd [2012] WASC 449 .… 7.55 Cusack v Commr of Taxation (2002) 120 FCR 520 .… 23.2, 23.7 Cutliffe’s Will Trusts, Re [1940] Ch 565 .… 32.4 Cvetkovic v R [2010] NSWCCA .… 11.46 CW v HR and DS (WSSC, 19 February 1997, INCADAT HC/E/WS 332) .… 28.41 Czarnikow Ltd v Rolimpex [1979] AC 351 .… 10.7 D D v L [2005] FamCA 479 .… 27.28–27.30 D’Ath v TNT Australia Pty Ltd [1992] 1 Qd R 369 .… 3.40, 3.74, 20.9 D’Almeida Araujo Lda v Sir Frederick Becker & Co Ltd [1953] 2 QB 329 .… 16.14, 19.106 D’Huart v Harkness (1865) 34 Beav 324; 55 ER 660 .… 38.66, 38.67

D’Orgeval, Will and Estate of (1920) 41 ALT 174 .… 17.19, 38.12 DA Technology Australia Pty Ltd v Discreet Logic Inc (FCA, Gummow J, 10/3/1994, BC9405780, unre-ported) .… 8.53 Daebo International Shipping Co Ltd v The Ship Go Star (2011) 283 ALR 255 . … 32.30 — v — [2012] FCAFC 156 .… 20.20, 20.74 Daewoo Australia Pty Ltd v Suncorp-Metway Ltd (2000) 48 NSWLR 692 .… 23.14 Dagi v BHP Co Ltd (No 2) [1997] 1 VR 428 .… 3.124, 3.140, 10.68, 18.9 Dahms v Brandsch (1911) 13 CLR 336 .… 5.2 Dalgety & Co Ltd v Aitchison; The ‘Rose Pearl’ (1957) 2 FLR 219 .… 5.8 Daljeet Singh v Minister for Immigration and Multicultural Affairs (No 2) [2001] FCA 327 .… 17.9 Dallah Real Estate v Ministry of Religious Affairs [2011] 1 AC 763 .… 43.7, 43.8 — v Pakistan [2011] 1 AC 763 .… 15.18 Dallal v Bank Mellat [1986] QB 441 .… 39.2 Dallhold Estates (UK) Pty Ltd, Re [1992] BCC 394 .… 36.42 Dalmia Cement Ltd v National Bank of Pakistan [1975] 1 QB 9 .… 43.10 Dalmia Dairy Industries Ltd v National Bank of Pakistan [1978] 2 Lloyd’s Rep 223 .… 17.7 Dalton v New South Wales Crime Commission (2006) 227 CLR 490 .… 3.17 Damberg v Damberg (2001) 52 NSWLR 492 .… 17.45, 34.6, 34.44, 34.46 Damiano v Damiano [1993] NZFLR 548 .… 28.69, 28.72 Dampskibelskabet Norden A/S v Beach Building and Civil Group Pty Ltd (2012) ALR 161 .… 39.2, 43.7 Danyluk v Danyluk [1964] WAR 124 .… 25.73 Darrell Lea Chocolate Shops Pty Ltd v Spanish-Polish Shipping Co Inc (The ‘Katowice II’) (1990) 25 NSWLR 568 .… 3.73, 3.86, 3.87 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR

353 .… 3.54, 21.1 David Syme & Co Ltd v Grey (1992) 38 FCR 303 .… 3.40, 6.11, 6.41, 6.43, 6.44, 20.5 Davidson v Global Investments International Ltd (1995) 125 FLR 409 .… 36.66, 36.70 Davidson’s Settlement Trusts, Re (1873) LR 15 Eq 383 .… 36.5 Davis v Davis (1922) 22 SR (NSW) 185 .… 40.35, 42.18, 42.23 — v Federal Commr of Taxation (1989) 86 ALR 195 .… 5.16, 5.17, 19.56 — v PR Sales Co, 304 F 2d 831 (1962) .… 33.54 — v Turning Properties Pty Ltd (2005) 222 ALR 676 .… 4.6, 4.18, 4.19, 16.37, 40.40, 41.26 Dawson, dec’d, Re [1966] 2 NSWR 211 .… 23.10 — v Perpetual Trustee Co Ltd (1953) 89 CLR 138 .… 3.134, 37.23 De Andrade, In the Marriage of (1984) 19 Fam LR 271 .… 10.47 De Beeche v South American Stores Ltd [1935] AC 148 .… 17.27 De Bueger v J Ballantyne & Co Ltd [1938] AC 452 .… 23.4 De L v Director General New South Wales Department of Community Services (1996) 187 CLR 640 .… 28.17, 28.37, 28.40, 28.72, 28.73, 28.76, 28.78 De la Vega v Vianna (1830) 1 B & Ad 284; 109 ER 792 .… 16.48 De Larragoiti, Re [1907] 2 Ch 14 .… 31.5, 31.8, 31.10 De Nicols, Re [1900] 2 Ch 410 .… 27.17, 27.21 — v Curlier [1900] AC 21 .… 14.28, 19.100, 27.4, 27.10, 27.12, 27.13, 27.17 De Reneville v De Reneville [1948] P 1001 .… 4.27, 25.69 De Santis v Russo (2001) 27 Fam LR 414 .… 40.78, 41.16, 41.19 — v — [2002] 2 Qd R 230 .… 40.78, 41.16, 41.19, 41.20 De Thoren v Attorney-General (1876) 1 App Cas 686 .… 16.34 De Virte, Re [1915] 1 Ch 920 .… 38.55 Dean Witter Reynolds Inc v Byrd (1985) 470 US 213 .… 7.56

Deans v Supplementary Benefits Commission [1972] NZLR 1015 .… 27.63, 27.66 Debtor, Re; Ex parte Viscount of the Royal Court of Jersey [1981] Ch 384 .… 36.41 Debtor (No 784 of 1991), Re [1992] Ch 554 .… 36.53 Debtors (No 836 of 1935), Re [1936] Ch 622 .… 36.51 DEF and the Protected Estates Act 1983, Re (2005) 192 FLR 92 .… 31.11, 37.5, 37.6, 42.2, 42.32 Delaney v Superior Court, 789 P 2d 934, (Cal 1990) .… 11.32 Delco Australia Pty Ltd v Equipment Enterprises Inc (t/as Kukla Trenchers) (2000) 100 FCR 385 .… 3.40, 3.53, 3.80, 3.108, 20.12, 20.63 Delfino v Trevis (No 2) [1963] NSWR 194 .… 40.47 Della Torre v Della Torre [1955] SASR 278 .… 25.4 Delos, The [2001] 1 Lloyd’s Rep 703 .… 7.22, 7.74 Delta Car Rentals Australia Pty Ltd v Bamco Villa Pty Ltd [2000] FCA 72 .… 6.9 Den Norske Bank (Luxembourg) SA v The Ship Martha II [1996] FCA 136 .… 5.12 Denaro v Denaro [1954] QWN 17 .… 28.15 Dennys Lascelles Ltd v Borchard [1933] VLR 46 .… 33.9, 33.12 Department of Community Services v Carmichael [2008] FamCA 690 .… 28.71 Department of Families,Youth and Community Care v Moore (1999) 24 Fam LR 475 .… 28.49 Department of Health and Community Services v Casse (1995) 19 Fam LR 474 .… 28.54, 28.67 Deposit and Investment Co Ltd (Receiver appointed), Re (1991) 30 FCR 463 . … 4.14 Deputy Commr of Taxation v Ahern [1986] 2 Qd R 342 .… 4.6 — v Bollands [2012] WASC 143 .… 3.103 — v Dunn [2012] WASC 500 .… 3.103

— v Hickey [1999] FCA 259 .… 6.38 — v Hua Wang Bank Berhad (2010) 80 ATR 449 .… 4.24 — v Sharp (1988) 82 ACTR 1 .… 4.20 — v State Bank (NSW) (1992) 174 CLR 219 .… 5.2 Derby & Co Ltd v Weldon [1990] Ch 48 .… 4.23 — v — (Nos 3 and 4) [1990] Ch 65 .… 4.22, 4.26, 4.28 — v — (No 6) [1990] 1 WLR 1139 .… 4.22 Descant v Administrators of Tulane Educational Fund, 639 So 2d 246 (1994) . … 20.50 Deschamps v Miller [1908] 1 Ch 856 .… 3.134, 3.138, 21.14 Despina R, The [1979] AC 685 .… 23.11, 23.12 Desputeaux v Editions Corvette(1987) Inc [2003] 1 SCR 178 .… 7.52, 7.53 Detroit v Gould (1957) 146 NE 2d 61 .… 18.7 Deutsche Bank Filiale Nürnberg v Humphrey 272 US 517 (1926) .… 23.7 Deutsche Schachtbau GmbH v Ras Al Khaimah National Oil Co [1990] 1 AC 295 .… 39.5, 39.6 Deverall v Grant Advertising Inc [1955] 1 Ch 111 .… 35.25 Devos v Devos (1970) 10 DLR (3d) 603 .… 27.7, 27.8, 27.12, 34.23 Di Mento v Visalli (1973) 1 ALR 351 .… 25.64, 26.7 Di Sora v Phillips (1863) 10 HL Cas 624 .… 17.30 Diab, Re [1994] IRTA 4292 .… 25.4 Diamond v Bank of London and Montreal Ltd [1979] 1 QB 333 .… 3.76 Dick v McIntosh [2001] FCA 1008 .… 36.39, 39.41, 39.43 Didisheim v London and Westminster Bank [1900] 2 Ch 45 .… 16.37, 31.7–31.9 Dimskal Shipping Co SA v International Transport Workers Federation [1992] 2 AC 152 .… 19.67, 19.75, 19.85, 21.5 Dinnison v Commonwealth (1997) 74 FCR 184 .… 5.3, 5.23

Director-General of Department of Community Services v Crowe (1996) 21 Fam LR 159 .… 28.57, 28.60, 28.66 — Re Jules (2008) 40 Fam LR 122 .… 27.23, 28.1, 28.10 — Re Sophie [2008] NSWSC 1239 .… 28.20 — v M and C (1998) 24 Fam LR 178 .… 28.51 — v Y [1999] NSWSC 644 .… 28.10 Director-General of Department of Community Services (Central Authority) v Apostolakis (1996) 21 Fam LR 1 .… 28.51, 28.64 — v RMS (1999) 27 Fam LR 259 .… 28.49 Director-General of Department of Community Services (Child Safety Services) v Hardwick [2011] Fam CA 553 .… 13.37 Director-General of Family and Community Services (NSW) v Davis (1990) 14 Fam LR 381 .… 28.40, 28.64, 28.69, 28.71 Director-General, Department of Families v RSP [2003] FamCA 623 .… 28.71 Director-General, Department of Families, Youth and Community Care (Qld) v Hobbs [1999] FamCA 2059 .… 28.59 Director-General, Department of Families, Youth and Community Care v Bennett (2000) 26 Fam LR 71 .… 28.71, 28.75 — v Thorpe (1997) 141 FLR 44 .… 28.51, 28.67, 28.68 Director-General, Department of Family, Youth and Community Services v Reissner (1999) 25 Fam LR 330 .… 28.29, 28.84 Disney Enterprises Inc v Click Enterprises Inc (2006) 267 DLR (4th) 291 .… 40.10 Distillers Co (Bio-Chemicals) Co Ltd v Thompson [1971] AC 458 .… 3.53, 3.74, 20.6, 20.8, 20.10, 20.11 Distin, Re; Ex parte Ormiston (1871) 24 LT 197 .… 36.60 Ditfort, Re; Ex parte Deputy Commr of Taxation (1988) 19 FCR 347 .… 10.76 Dixon v Royal Insurance Australia Ltd (1991) 105 ACTR 1 .… 20.51, 32.36 DJL v Central Authority (2000) 201 CLR 226 .… 28.38 DM v Director-General, Department of Community Services (1998) 24 Fam LR

168 .… 28.49 Dobell v SS Rossmore Co Ltd [1895] 2 QB 408 .… 19.7 Dobson and Van Londen, In the Marriage of (2005) 33 Fam LR 525 .… 9.1, 9.29 Doetsch, Re [1896] 2 Ch 836 .… 16.41, 35.35, 37.34 Doglioni v Cripsin (1866) LR 1 HL 301 .… 38.2, 38.3 Dominion Capital Pty Ltd v Pico Holdings Inc (2001) 4 VR 195 .… 23.14 Domroese and Leggatt, In the Marriage of (1996) 20 Fam LR 213 .… 28.32 Don’s Estate, Re (1857) 4 Drew 194 .… 29.11 Donnelly, Re (1927) 28 SR (NSW) 34 .… 32.11, 38.43 Donohue v Armco [1999] 2 Lloyd’s Rep 649 .… 7.24 — v — [2002] 1 Lloyd’s Rep 425 .… 7.31, 7.49, 7.78, 7.79, 7.89, 7.92, 9.3, 9.8, 9.25 Dooney, Re [1993] 2 Qd R 362 .… 40.33 Dorajay Pty Ltd v Aristocrat Leisure Ltd [2007] FCA 1502 .… 11.24 Dornoch Ltd v Westminster International BV [2009] 2 CLC 226 .… 15.15, 32.28 Dornom, In the Marriage of (1984) FLC 91-556 .… 26.41, 26.43 Dost Aly Khan, Goods of (1880) 6 PD 6 .… 17.25 Douglas v Douglas (1871) LR 12 Eq 617 .… 13.16 — v Hello! Ltd (No 6) [2006] QB 125 .… 21.12 — v Longano (1981) 147 CLR 212 .… 13.12, 29.15 — v Philip Parbury & Associates [1999] WASC 15 .… 6.29 — v Republic of Nauru (2004) 187 FLR 221 .… 10.30, 10.31 Douglas Financial Consultants Pty Ltd v Price [1992] 1 Qd R 243 .… 22.23, 33.21, 33.43, 33.45–33.47, 33.70 Douglas Pharmaceuticals Ltd v Nutripharm New Zealand Ltd (1997) 42 IPR 407 .… 20.63 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 .… 3.75, 20.7, 20.14

Down to Earth Spring Water Pty Ltd v State Bank of New South Wales (1991) 31 FCR 81 .… 6.26 Doyle (dec’d), Re; Ex parte Brien v Doyle (1993) 112 ALR 653; 41 FCR 40 .… 3.129, 33.17, 33.20, 36.51, 36.52, 36.57 — v Hall Chadwick [2007] NSWCA 159 .… 42.20 DP v Commonwealth Central Authority (2001) 206 CLR 401 .… 28.37, 28.64, 28.66, 28.70, 28.71, 28.76, 28.78 DPP v Alexander (1993) 33 NSWLR 482 .… 11.15, 11.23, 11.39 Dryden v Dryden (1876) 2 VLR (E) 74 .… 17.39, 37.23 DS Parklane Developments Pty Ltd v Korea First Finance Ltd (SC(NSW), Santow J, 20 August 1997, 2776/97, BC9703785, unreported) .… 41.6 Du Bray v McIlwraith [2009] NSWSC 888 .… 3.129 Dubai Electricity Co v Islamic Republic of Iran Shipping Lines (The Iran Vojdan) [1984] 2 Lloyd’s Rep 380 .… 19.9 Duchess of Kingston’s Case (1776) 2 Sm LC (13th ed) 644 .… 40.65 Duchess of Orleans, Re (1859) 1 Sw & Tr 253 .… 37.11 Duder v Amsterdamsch Trustees Kantoor [1902] 2 Ch 132 .… 3.132, 27.31 Duff v R (1980) 28 ALR 663 .… 10.64 Duff Development Co Ltd v Government of Kelantan [1924] AC 797 .… 10.6 Duke v Andler [1932] 4 DLR 529 .… 27.34 Duke of Wellington, Re [1947] Ch 506 .… 15.10, 15.21 — [1948] Ch 118 .… 3.139 Dukov v Dukov (1968) 13 FLR 136 .… 25.21, 25.22 Dulaney v Merry [1901] 1 QB 536 .… 33.21, 33.23 Dulles’ Settlement (No 2), Re [1951] Ch 842 .… 40.16, 40.21 Dumas v US Fidelity & Guaranty Insurance Co 134 So 2d 45 (1961) .… 20.50 Dunbee Ltd v Gilman & Co (Australia) Pty Ltd (1968) 70 SR (NSW) 219 .… 19.8, 40.20 Duncan v Lawson (1889) 41 Ch D 394 .… 32.6

Dune’s Trustees v Osborne [1960] SC 444 .… 38.71 Dunlop Pneumatic Co v AG Cudell & Co [1902] 1 KB 342 .… 35.19 Dunlop Rubber Co Ltd v Dunlop [1921] 1 AC 367 .… 3.97 Dunn, Re; Ex parte Andrew (1981) 35 ALR 466 .… 19.58 Dunne v Saban [1955] P 178 .… 13.27 Durra v Bank of New South Wales [1940] VLR 170 .… 3.54 Duyvewaardt v Barber (1992) 43 RFL (3d) 139 .… 27.8, 34.23 Dworkin-Cosell Interair Courier Services Inc v Avraham (1989) 728 F Supp 156 (SDNY) .… 43.10 Dyce Sombre v Troup (1856) Deane 22 .… 31.5 DYK & The Adoption Act 2000, Re [2005] NSWSC 1045 .… 30.5 Dynamics Corp of America (in Liq), Re [1976] 2 All ER 669 .… 23.17 Dynamit Attorney-General v Rio Tinto [1918] AC 292 .… 18.45 Dyno Wesfarmers Ltd v Knuckey [2003] NSWCA 375 .… 17.4, 20.55 Dzikowski v Mazgay (unreported, 7 July 1965) noted in (1967) 40 ALJ 361 .… 5.2 E E & B Chemicals and Wool Treatment Pty Ltd, Re [1939] VLR 278 .… 20.70 E (A Minor) (Abduction), Re [1993] 1 FLR 135 .… 28.70 E (Abduction: Non-Convention Country), Re [1998] 2 FLR 642 .… 28.41 E D & F Man (Sugar) Ltd v Yani Haryanto (No 2) [1991] 1 Lloyd’s Rep 429 .… 40.93, 40.94, 41.17 E F Hutton & Co (London) Ltd v Mofarrij [1989] 2 All ER 633 .… 3.55 E v H (1986) 7 NSWLR 212 .… 29.37 Eagle Star Insurance Co Ltd v Yuval Insurance Co Ltd [1978] 1 Lloyd’s Rep 357 .… 39.6 Earl of Oxford’s Case (1615) 1 Ch Rep 1 .… 9.2 Earthworks and Quarries Ltd v F T Eastment & Sons Pty Ltd [1966] VR 24 .…

3.54, 3.70 Eastern Trader, The [1996] 2 Lloyd’s Rep 585 .… 40.17 Ebbage v Manthey [2001] QSC 004 .… 35.45 Edelsten v Health Insurance Commission (1988) 90 ALR 595 .… 2.20 Edwards v Australian Securities Commission (1997) 72 FCR 350 .… 35.24 — v Santos Ltd (2011) 242 CLR 421 .… 5.4 Efax Pty Ltd v Sonray Capital Markets Pty Ltd (in liq) (2011) 84 ACSR 195 .… 6.10, 35.5 Egan v Egan [1928] NI 159 .… 13.7 Egbert v Short [1907] 2 Ch 205 .… 8.5 Egerton’s Will Trusts, Re [1956] Ch 593 .… 27.5, 27.6, 27.16 Egis Consulting Australia Pty Ltd v First Dynasty Mines Ltd [2001] WASC 224 .… 3.60 Egmatra AG v Marco Trading Corporation [1999] 1 Lloyd’s Rep 862 .… 7.26, 17.9 Eisenberg v Joseph [2001] NSWSC 1062 .… 23.11 EisenwerkHensel Bayreuth Dipl-IngBurkhardt GmbH v Australian Granites Ltd [2001] 1 Qd R 461 .… 7.6 EJK v TSL (2006) 35 Fam LR 559 .… 28.18 El Ajou v Dollar Land Holdings plc [1993] 3 All ER 717, reversed on other grounds [1994] 2 All ER 685 (CA) .… 21.5, 21.6 El Alami, In the Marriage of (1987) 11 Fam LR 852 .… 28.21 El Amria, The and El Minia [1981] 2 Lloyd’s Rep 539 .… 7.20 — [1982] 2 Lloyd’s Rep 28 .… 7.20 El Oueik v El Oueik (1977) 3 Fam LR 11,351 (NSWSC, Toose J) .… 26.62, 26.72 El-Ajou v Dollar Land (Manhattan) Ltd [2005] EWHC 2551 .… 36.19 El-Kharouf v El-Kharouf [2004] NSWSC 187 .… 8.39 Elder v Queensland (1997) 141 FLR 467 .… 3.120

Elders CED Corporation v Dravo Corporation (1984) 59 ALR 206 .… 7.5 Elders IXL Ltd v Lindgren Pty Ltd (1987) 79 ALR 411 .… 3.89 Electra Air Conditioning BV v Seeley International Pty Ltd ACN 054 687 035 [2008] FCAFC 169 .… 7.75 Electro Optic Systems Pty Ltd v New South Wales [2012] ACTSC 184 .… 20.9 Electronic Industries Imports Pty Ltd v Public Curator of Queensland [1960] VR 10 .… 16.38, 37.6 Eleftheria, The [1970] P 94 .… 7.81, 7.86–7.88 Elias, Re (1851) 3 Mac & G 42 ER 251 .… 31.8 Ellen G White Estate Inc v Knudson [2013] FCA 378 .… 3.36 Ellerman Lines Ltd v Read [1928] 2 KB 144 .… 9.19 Ellinger v Guiness, Mahon & Co [1939] 4 All ER 16 .… 7.88 Ellis v Dariush-Far (2007) 242 ALR 635 .… 41.12 — v M’Henry (1871) LR 6 CP 228 .… 40.62 Ellison v Karnchanit (2012) 48 Fam LR 33 .… 29.35 Elna Australia Pty Ltd v International Computers Pty Ltd (1987) 14 FCR 461; 74 ALR 232 .… 11.39, 11.40, 11.42, 11.43 — v — (No 2) (1987) 16 FCR 410; 75 ALR 271 .… 11.39 Eloc Electro-Optiek BV, Re [1982] Ch 43 .… 36.72 Emanuel Management Pty Ltd (In Liq) v Fosters Brewing Group Ltd (1999) 73 ACSR 303 .… 35.10 Emanuel v Symon [1908] 1 KB 302 .… 40.19, 40.23, 40.26, 41.20 Embiricos v Anglo–Austrian Bank [1904] 2 KB 870; [1905] 1 KB 677 .… 22.17, 22.23, 22.24, 33.22, 33.25 Employers’ Liability Assurance Corporation Ltd v Sedgwick, Collins & Co [1927] AC 95 .… 35.25 Empson v Smith [1966] 1 QB 426 .… 10.63 Emre II, The [1989] 2 Lloyd’s Rep 182 .… 7.19 Engel v Adelaide Hebrew Congregation Inc (2007) 98 SASR 402 .… 7.71, 19.7

Engelke v Musmann [1928] AC 433 .… 10.64 England v Sontrop (1999) 20 Qld Lawyer Reps 88 .… 16.19 Enohin v Wylie (1862) 10 HL Cas 1 .… 37.4, 38.2, 38.3 Entores Ltd v Miles Far East Corporation [1955] 2 QB 327 .… 14.55, 19.62, 22.9 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 .… 1.19 Epar, The [1985] 2 MLJ 3 .… 7.42 Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498 .… 33.68 Erdal, In the Marriage of (1992) 15 Fam LR 465 .… 28.17, 28.20 Ertel Bieber & Co v Rio Tinto Co [1918] AC 260 .… 19.95 Esanda Finance Corporation Ltd v Wordplex Information Systems Ltd (1990) 19 NSWLR 146 .… 3.45 Esco Corporation v Bradken Resources Pty Ltd (2011) 282 ALR 282 .… 43.8 Esdale v Bank of Ottawa [1920] 1 WWR .… 40.14 Esmore & Esmore (1979) FLC 90-711 .… 27.30 Esso China Inc v Chan Wing Mou [1999] VSC 294, BC9905861 .… 41.16 Etler v Kertesz (1960) 26 DLR (2d) 209 (Ont CA) .… 21.5 Eubanks, for the United States of America v Cannar [2003] NSWSC 1267 (affirmed on other grounds (2004) 60 NSWLR 483) .… 11.23 Euro-Diam Ltd v Bathurst [1990] 1 QB 1 .… 18.46, 19.77, 19.79 Euroceanica (UK) Ltd v The Ship Gem of Safaga (as surrogate for the ships JBU Opal and JBU Onyx) (2009) 182 FCR 1; 263 ALR 68 .… 5.10, 32.28 Eurofood IFSC, Re [2006] Ch 508 .… 36.22 Eurogold Ltd v Oxus Holdings (Malta) Ltd [2007] FCA 811 .… 8.29, 8.60 European Bank Ltd v Citibank Ltd (2004) 60 NSWLR 153 .… 17.7, 17.33 — v Evans (2010) 240 CLR 432 .… 23.7, 23.11 Evans, Re [1947] Ch 695 .… 13.24 — v Evans [1942] SASR 223 .… 13.24

— v Strachan (1999) 9 Tas R 10 .… 42.2, 42.30 Evans Marshall & Co v Bertola SA [1973] 1 WLR 349 .… 7.63, 7.86 Evers v Firth (1987) 10 NSWLR 22 .… 3.8, 3.10 Ewing v Orr-Ewing (1883) 9 AC 34 .… 36.24 Express Airways v Port Augusta Air Services [1980] Qd R 543 .… 3.60 Eyre v Nationwide News Pty Ltd [1967] NZLR 851 .… 3.46, 3.75 F F & B Chemicals and Wool Treatment Pty Ltd, Re (1939) SASR 441 .… 2.19, 42.18 — [1940] SASR 267 .… 42.8 F (Hague Convention: Child’s Objections), Re (2006) 26 Fam LR 183 .… 28.73 F (minor: abduction: rights of custody abroad), In re [1995] 3 All ER 641 .… 28.49 F Hoffman-La Roche Ltd v Empagran SA, 542 US 155 (2004) .… 40.95 FA Mann (1937) 18 BYIL 97 .… 19.77 FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association (1997) 41 NSWLR 559 .… 7.27, 7.64, 7.66, 7.80 Fair Work Ombudsman v Pocomwell Ltd [2013] FCA 250 .… 8.36 — v Toyota Material Handling (NSW) Pty Ltd (2012) 209 FCR 428 .… 5.18 Fairfax Financial Holdings Ltd, Re [2011] NSWSC 223 .… 11.52 Falcon Private Bank v Barry Bernard Charter [2012] HKFCI 1039 .… 21.6 Far East Oil Tanker SA v Owners of the Ship ‘Andres Bonifacio’ [1991] 1 SLR 694 .… 5.10 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 .… 5.16, 21.1, 36.5 Faxtech Pty Ltd (t/as Point Trading) v ITL Optronics Ltd [2011] FCA 1320 .… 7.47, 7.62–7.64, 7.93, 8.60 Fayed v Al-Tajir [1988] QB 712 .… 10.49, 10.66 Federal Bank of Australia v White (1895) 21 VLR 451 .… 36.8

Federal Commr of Taxation v Energy Resources of Australia (1994) 126 ALR 161 .… 23.4 — v Ma (1999) 92 FCR 569 .… 3.111 Federal Deposit Insurance Corporation v Vanstone [1992] 2 WWR 407 .… 40.9 Federal Finance & Mortgage Ltd v Winternitz (SC (NSW), Sully J, 9 November 1989, BC8901479, unre-ported) .… 40.23–40.25 Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International NV (2007) 157 FCR 558 .… 4.10, 4.14, 10.84, 11.37 — v Spirits International BV (No 3) [2013] FCA 85 .… 40.78, 40.87, 40.88 Felixstowe Dock & Ry Co v United States Lines Inc [1989] QB 360 .… 40.22 Felton v Mulligan (1971) 124 CLR 367 .… 5.5, 5.6 Fencott v Muller (1983) 152 CLR 570 at 606 .… 5.6 Feng v GMS Fulfilment Service Ltd (2004) 50 ACSR 527 .… 35.32 Fenton v Fenton [1957] VR 17 .… 26.39, 26.41 Ferdinand Wagner v Laubscher Bros & Co [1970] 2 QB 313 .… 40.15 Ferguson’s Will, Re [1902] 1 Ch 483 .… 38.21 Fernandez (t/as Suave Productions) v Perez (t/as Pitbull) [2012] NSWSC 1242 . … 17.10 Ferrier-Watson v McElrath (2000) 26 Fam LR 169 .… 8.49, 13.3, 13.10, 13.19, 13.21 Ferris v Plaister (1994) 34 NSWLR 474 .… 7.27 Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32 .… 21.5 Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 60 NSWLR 425 .… 35.15, 35.22, 35.41 Fielding v Doran (1984) 60 ALR 342 .… 5.3, 5.19 Fields v Southern Farm Bureau Casualty Insurance Co 87 SW 3d 224 (Ark 2002) .… 20.65 Fife v Fife (1964) 49 DLR (2d) 648 .… 26.47 Filipowski v Frey [2005] NSWLEC 166 .… 3.11

Finnish Marine Insurance Co Ltd v Protective National Insurance Co Ltd [1989] 2 All ER 929 — v — [1990] 1 QB 1078 .… 3.58 Finnish Marine Insurance Co Ltd v Protective National Insurance Co Ltd [1989] 2 All ER 929 .… 3.113 Fiona Trust & Holding Corporation v Privalov [2008] 1 Lloyd’s Rep 254 .… 7.75 — v — [2010] EWHC 3199 (Comm) .… 16.29, 21.5, 21.16 — v Skarga [2013] EWCA Civ 275 .… 21.6 Fiorentino v Irons (1997) 79 FCR 327 .… 36.77 Firebrace v Firebrace (1878) 4 PD 63 .… 13.37 First Laser Ltd v Fujian Enterprise (Holdings) Co Ltd [2012] HKCFA 52 .… 21.6 Fish v Solution 6 Holdings Ltd (2006) 225 CLR 180; 227 ALR 241 .… 5.3 Fisher v Fisher (1976) 2 Fam LR .… 27.63 Fitzgerald, Re [1904] 1 Ch 573 .… 34.20 Fitzpatrick, Re [1952] Ch 86 .… 37.20, 37.21 Flaherty v Girgis (1985) 4 NSWLR 248 .… 3.73, 6 — v — (1987) 162 CLR 574 .… 3.14, 3.18, 6.62, 42.18 Flakt Australia Ltd v Wilkins and Davies Construction Co Ltd (1979) 25 ALR 605 .… 7.5 Fleetwood v Benjamin (1870) 9 SCR (NSW) 162 .… 36.8 Fleming v Marshall (2011) 279 ALR 737 .… 8.30, 8.35, 8.38, 8.40, 8.43, 8.63, 16.11, 17.29, 19.30, 19.33 Flett v Brough (1999) DFC 95-211 .… 27.36 Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 .… 3.36 Florance v Hutchinson (1891) 17 VLR 471 .… 17.44, 18.41 Fluor Australia Pty Ltd v ASC Engineering Pty Ltd (2007) 19 VR 458 .… 20.46, 20.48, 20.49

Flynn dec’d (No 2), Re [1969] 2 Ch 403 .… 37.33 FN & the Mental Health Act 1958 [1984] 3 NSWLR 520 .… 31.7, 31.8, 31.10 Fokas v Fokas [1952] SASR 152 .… 25.21, 25.22 Folias, The [1979] AC 685 .… 23.12 Fon Hock, Re (1911) 7 Tas LR 25 .… 38.7 Forbes v Forbes (1854) Kay 341 .… 29.10 Fordyce v Bridges (1848) 2 Ph 497 .… 34.20 Forestry Commission v Vickers-Armstrong (Tractors) Ltd [1964] Tas SR 109 . … 3.43 Forgan v Bainbridge, 274 P 155 (1928) .… 33.54 Forsikrings A/S Vesta v Butcher [1989] 1 AC 852 .… 19.86 Forster, Re (1919) 20 SR (NSW) 156 .… 37.35 Forsyth v Forsyth [1891] P 363 .… 34.31 Forum Craftsman, The [1985] 1 Lloyd’s Rep 291 .… 7.70 Foster v Driscoll [1929] 1 KB 470 .… 18.46, 19.83 Foti v Banque Nationale de Paris (No 1) (1989) 54 SASR 354 .… 23.11 Fournier v The Margaret Z [1999] 3 NZLR 111 .… 16.43, 33.72 Foxe v Brown (1985) 58 ALR 542 .… 5.2 Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 .… 7.55, 7.72, 7.73, 20.61 Francke & Rasch, Re [1918] 1 Ch 470 .… 22.34 Frandsen v County of Brevard (2001) 800 So 2d 757 .… 24.8 Freckmann v Pengendar Timur Sdn Bhd [1989] WAR 62 .… 3.39 Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418 .… 19.20 Freke v Lord Carbery (1873) LR 16 Eq 461 .… 32.4, 32.5, 32.10, 38.27 Fremlin v Fremlin (1913) 16 CLR 212 .… 13.26 Fricke v Isbrandtsen Co (1957) 151 F Supp 465 (SDNY) .… 19.10

Fried Krupp Attorney-General, Re [1917] 2 Ch 188 .… 18.44 Friedrich v Friedrich (1996) 78 F 3d 1060 .… 28.71 Friis v Friis (2000) 26 Fam LR 205 .… 6.9 Frost v Bankstown Wiley Park Motor Cycle Club Inc [2008] ACTSC 104 .… 16.16 Fulcrum Securities Ltd v Lake [2009] NSWSC 1202 .… 40.49 Fuld (dec’d), In the Estate of (No 3) [1968] P 675 .… 14.48, 15.10, 16.28, 38.8, 38.9, 38.26 — [1966] 2 WLR 717 .… 13.19 Fulham Football Club v Olympique Lyonnais SASP, CAS 20034/O/486 .… 39.21 — v Richards [2012] 1 All ER 414 .… 7.55 Fuller v K & J Trucks Coffs Harbour Pty Ltd (2006) 67 NSWLR 516 .… 16.16 — v Webster, 95 A 335 (1915) .… 33.54 Fullerton Nominees Pty Ltd v Darmago [2000] WASCA 4 .… 18.42, 18.53 G G & H Montage GmbH v Irvani [1990] 2 All ER 225 .… 16.24, 22.12, 22.17, 22.32, 22.35 G, Re [1966] NZLR 1028 .… 13.13, 13.14, 13.22, 31.3 G (A Minor) (Abduction), Re [1989] 2 FLR 475 .… 28.77 G (A Minor) (Enforcement of Access Abroad), In re [1993] Fam 216 .… 28.84 G (an infant), Re [1968] 3 NSWR 483 .… 30.3, 30.4, 30.10 G v C (1985) 10 Fam LR 718 .… 42.27, 42.33 G v P [1977] VR 44 .… 13.12 Gaetano and Maria, The (1882) 7 PD 137 .… 16.21 Gainsford v Tannenbaum (2012) 293 ALR 699 .… 36.18, 36.19, 36.21 Galbraith v Grimshaw [1910] AC 508 .… 36.27 Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd (2002) 124 FCR

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— v Gibson 479 P 2d 648 (Cal 1971) .… 20.65 Gifford v Strang (2003) 198 ALR 100 .… 20.26 Gilchrist v Dean [1960] VR 266 .… 3.54, 3.89, 3.90 Gillespie, Re; Ex parte Robarts (1886) 18 QBD 286 .… 22.17 Gillick v West Norfolk and Wisbech Health Authority [1986] AC 112 .… 13.37 Gilmore, In the Marriage of (1993) 16 Fam LR 285 .… 8.19, 8.21, 26.6, 27.27, 27.28, 27.31, 27.34, 27.41, 28.17 Gilsan (International) Ltd v Optus Networks Pty Ltd [2004] NSWSC 1077 .… 19.78 Glass v Keough (1867) 4 WW & A’B (L) 189 .… 36.9 Glasson v Scott (1973) 1 ALR 370 .… 13.37, 28.14, 28.15 Gleeson v Phelan (1914) 15 SR (NSW) 30 .… 34.20 Glencore International AG v Exter Shipping Ltd [2002] 1 All ER (Comm) 1 .… 9.15, 9.31 Glencore Nickel Pty Ltd, Re (2003) 44 ACSR 210 .… 40.80 Global Fund Partners Ltd v Babcock & Brown Ltd (in liq) (2010) 79 ACSR 383 .… 7.3, 7.69, 7.72, 7.78, 7.80, 8.61 Global Reality Development Corporation v Dominion Wines Ltd [2005] NSWSC 1221 .… 35.6 Glueck v Stang (2008) 76 IPR 75 .… 32.38 Glynn, Re; Glynn v Harries [1980] Tas R 248 .… 13.12 GOC & GC, Application; re WJS [2013] NSWSC 563 .… 30.31 Godard v Gray (1870) LR 6 QB 139 .… 40.44, 40.47, 40.62 Goenaga, The Estate of [1949] P 367 .… 37.12 Golden Acres Ltd v Queensland Estates Pty Ltd [1969] Qd R 378 .… 19.19 Goldsbrough Mort & Co Ltd v Hall (1949) 78 CLR 1 .… 23.9 — v Hall [1948] VLR 145 .… 19.91, 23.5 Gollogly and Owen, In the Marriage of (1989) 13 Fam LR 622 .… 28.41, 28.53 Goodridge v Department of Public Health (2003) 798 NE 2d 941 .… 24.8

Gordon v Norwegian Capricorn Line (Aust) Pty Ltd [2007] VSC 517 .… 20.76 — v Tolcher (2006) 231 CLR 334; 231 ALR 582 .… 5.16, 5.18 Gordon Pacific Developments Pty Ltd v Conlon [1993] 3 NZLR 760 .… 40.19, 40.22, 41.4, 41.21, 41.23 Gorringe v Transport Commission (Tasmania) (1950) 80 CLR 357 .… 20.27 Gorton v Australian Broadcasting Commission (1973) 22 FLR 181 .… 20.15 Gosman v Ockerby [1908] VLR 298 .… 3.70 Gosper v Sawyer (1985) 160 CLR 548 .… 3.56, 19.47, 19.94 Gough & Gilmore Holdings Pty Ltd v Caterpillar of Australia Pty Ltd [2009] FCA 1429 .… 3.44 Gould, In the Marriage of (1993) 17 Fam LR 156 .… 27.26, 35.29 — v Brown (1998) 193 CLR 346 .… 6.2 Government of India v Taylor [1955] AC 491 .… 18.4, 18.11 Granite Springs Pty Ltd v Intercooler Water Dispensers Pty Ltd [2000] VSC 224 .… 3.74, 20.9 Granozcski v Shaw (1896) 7 QLJ 18 .… 3.113 Grant v Easton (1883) 13 QBD 302 .… 3.54 Grappo v Coventry Financial Corp (1991) 235 Cal App 3d 496 .… 27.22 Gray (otherwise Formosa) v Formosa [1963] P 259 .… 18.62, 26.67, 26.70 Graziano v Daniels (1991) 14 Fam LR 697 .… 28.51, 28.64 Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad (1998) 196 CLR 161 .… 36.18 Gredd v Arpad Busson [2003] EWHC 3001 .… 11.50 Green v Australian Industrial Investment Ltd (1989) 25 FCR 532 .… 7.47, 8.60, 19.48 Greenfield and Pawson, In the Marriage of (1984) 9 Fam LR 606 .… 28.32, 28.35 Gregg v Perpetual Trustee Co (1918) 18 SR (NSW) 252 .… 32.11, 33.7, 33.20 Greig v Fire and All Risks Insurance Co Ltd [1989] 2 Qd R 563 .… 13.35

Gresham Corporation Pty Ltd (in liq), Re [1990] 1 Qd R 306 .… 23.17 Griesheim, The (Hong Kong Court of Appeal, No 70 of 1983, unreported) .… 7.20 Griffiths (a bankrupt), Re (2004) 139 FCR 185 .… 23.17 Grimwood v Bartels (1877) 46 LJ Ch 788 .… 31.6, 31.7 Grissom v Grissom [1949] QWN 52 .… 26.63 Groos, The Estate of [1904] P 269 .… 37.12, 38.29, 38.38, 38.41 — Re [1915] 1 Ch 572 .… 38.28 Gros v Jones [2011] NSWSC 1605 .… 41.5 Grove, Re (1888) 40 Ch D 216 .… 29.11, 29.22 Grummett v Grummett (1966) 7 FLR 415 .… 25.65, 26.7 Grunfeld v USA [1968] 3 NSWR 36 .… 10.7 Grupo Mexicano de Desarrollo SA v Alliance Bond Fund Inc, 527 US 308 (1999) .… 4.16 Grupo Torras SA v Al Sabah [2001] CLC 221 (CA) .… 21.5 Grzybowicz v Grzybowicz (1963) 4 FLR 136 .… 25.21, 25.22 Gsponer, In the Marriage of (1988) 12 Fam LR 755 .… 28.58, 28.59, 28.69, 28.70, 28.74 Guaranty Trust Co of New York v Hannay & Co [1918] 1 KB 43; [1918] 2 KB 623 .… 17.6, 22.5, 22.16, 22.17 Guepratte v Young (1851) 4 De G & Sm 217; 64 ER 804 .… 34.10 Guiard v De Claremont [1914] 3 KB 145 .… 40.15 Gulbenkian v Gulbenkian [1937] 4 All ER 618 .… 14.57 Gulf Bank KSC v Mitsubishi Heavy Industries Ltd [1994] 1 Lloyd’s Rep 323 . … 7.61 Gulf Oil Corporation v Gilbert 330 US 501 (1947) .… 8.8, 8.17, 8.33 Guzowski v Cook (1981) 149 CLR 128 .… 5.3 H

H (Child Abduction: Mother’s Asylum), Re [2003] EWHC 1820 .… 28.41 — (child abduction: rights of custody), Re [2000] 1 FLR 201 .… 28.59 H (Minors) (Abduction: Custody Rights), Re [1991] 2 AC 476 .… 28.41, 28.54 H and the Adoption of Children Act, Re [1990] ACLD 1005 .… 6.48, 6.52 H v H (1995) 12 NZFLR 498 .… 13.35 Habib v Commonwealth (2010) 183 FCR 62 .… 10.75, 10.80, 18.1 Haefliger, Re [1992] ACL Rep 395 NSW 21 .… 37.3 Hafza v Director-General of Social Security (1985) 6 FCR 444 .… 30.3 HAG Import Corporation (Australia) Pty Ltd v Krosnienskie Huty Szkla ‘Krosno’ SA [2004] FCA 1223 .… 3.44 Hagen, The [1908] P 189 .… 3.46 Hagerbaum, Re [1933] IR 198 .… 29.23 Haji-Ioannou v Frangos [2009] 2 CLC 500 .… 15.10, 15.16 Halcyon the Great, The [1975] 1 WLR 515 .… 23.21 Hall v v Australian Capital Territory Electricity Authority [1980] 2 NSWLR 26 . … 3.74, 3.93 — v Woolf (1908) 7 CLR 207 .… 36.5 Halla Liberty, The [2000] 1 HKC 659 (HK Court of First Instance) .… 5.10 Hallen v Angledal [1999] NSWSC 552 .… 43.8 Halpern v Canada (Attorney-General) (2003) 225 DLR (4th) 529 — v Halpern [2006] 2 Lloyd’s Rep 83 .… 39.7 — v Halpern [2008] QB 195 .… 19.8 Hamilton v Merck & Co Inc (2006) 66 NSWLR 48 .… 14.27, 16.4, 20.11 Hamilton-Irvine, Re (1990) 94 ALR 428 .… 6.19 Hamlyn & Co v Talisker Distillers [1894] AC 202 .… 19.2 Hampstead Meats Pty Ltd v Emerson and Yates Pty Ltd [1967] SASR 109 .… 3.70 Hamza v Minister for Justice, Equality and Law Reform [2010] IEHC 427 .…

25.4 Hanbury-Brown, In the Marriage of (1995) 20 Fam LR 334 .… 28.42, 28.49, 28.54, 28.55 Hannema, In the Marriage of (1981) 7 Fam LR 542 .… 27.3, 27.8, 27.13, 27.31, 27.41 Hansen v Dixon (1906) 23 TLR 56 .… 19.103 — v Turkey [2003] 2 FCR 97 .… 28.41 Haque v Haque (No 1) (1962) 108 CLR 230 .… 13.27, 15.29, 15.30, 15.33, 24.13, 24.25, 38.4 — v — [1963] WAR 15, 26 .… 24.45 — v — (No 2) (1965) 114 CLR 98 .… 32.3, 32.5, 32.8–32.14, 32.16, 32.18, 32.24–32.27, 32.31, 32.33, 32.37, 33.64, 33.75 Har-Shefi v Har-Shefi (No 2) [1953] P 220 .… 15.17 Harbour Assurance Co (UK) Ltd v Kansa General International Insurance Co Ltd [1993] QB 701 .… 7.27, 7.72 Hardie Rubber Co Pty Ltd v General Tire and Rubber Co (1973) 129 CLR 521 . … 11.20 Harding v The Commrs for Stamps for Queensland [1898] AC 769 .… 32.13 Hardwick Game Farm v Suffolk Agricultural and Poultry Producers Assn [1969] 2 AC 31 .… 32.26, 32.29, 33.26 Harmer v Bell The Bold Buccleugh (1851) 7 Moo PC 267 .… 5.8 Harold Meyers Travel Service Ltd v Magid (1977) 15 OR (2d) 1 .… 19.73 Harris v Harris [1947] VLR 44 .… 2.6, 26.59, 40.45, 42.26, 42.27, 42.29, 42.33 — v — [1979] 2 NSWLR 252 .… 29.33, 29.35, 29.37, 29.43 — v Russell (1868) 2 QSCR 17 .… 36.30 — v Taylor [1915] 2 KB 580 .… 40.16 Harris Corp v National Iranian Radio & Television (1982) 691 F 2d 1344, 1357 (11th Cir) .… 7.88 Harriton v Stephens (2006) 225 CLR 52 .… 20.65 Harrods (Buenos Aires) Ltd, Re [1992] Ch 72 .… 36.66

Harry, Re (1996) 106 NTR 1 .… 38.12, 38.15 Hartwell Trent (Australia) Pty Ltd v Tefal SA [1968] VR 3 .… 3.46 Hashmi v Hashmi [1972] Fam 36 .… 24.46, 24.48, 29.11 Hassan v Hassan, Re (1976) 69 DLR (3d) 224 .… 24.33, 24.36, 24.37 — v — [1978] 1 NZLR 385 .… 24.23, 26.28 Hawkins, Re [1977] Ch 714 .… 23.10 Hay v Northcote [1900] 2 Ch 262 .… 25.79, 26.77 Haynsworth v Corporation of Lloyd’s 121 F 3d 956 (1997) .… 7.47 Hayward, Re [1897] 1 Ch 905 .… 36.30 HC Sleigh Ltd v Barty Clarke & Co Ltd [1954] SASR 49 .… 3.2, 3.66 Hebei Import and Export Corp v Polytek Engineering Co Ltd [1999] 2 HKC 205 .… 43.9 Hecht v Buisman’s [1974] Rev Crit 82 .… 15.18 Heilbrunn v Lightwood PLC [2007] FCA 433 .… 3.73 Heilman v Falkenstein (1917) 33 TLR 383 .… 37.23 Heinemann & Co v SB Hale & Co [1891] 2 QB 83 .… 35.13 Helbert Wagg & Co Ltd, Re [1956] Ch 323 .… 18.23, 19.15, 19.93, 23.23, 32.35, 33.62 Helicopter Utilities Pty Ltd v Australian National Airlines Commission [1962] NSWR 747 .… 8.22 Hell Colour Australia Pty Ltd v Everbest Printing Co Ltd [2010] VSC 643 .… 23.14 Hellenic Lines Ltd v Rhoditis 400 US 856 (1970) .… 20.76 Hellman’s Will, Re (1866) LR 2 Eq 363 .… 28.87, 38.11 Henderson v Amadio Pty Ltd (No 1) (1995) 62 FCR 1 .… 5.16 — v Bank of Hamilton (1894) 23 SC 716 .… 3.135 — v Henderson (1843) 3 Hare 100 .… 40.56 — v Merrett Syndicates Ltd [1995] 2 AC 145 .… 20.35

Hendrikman v Magenta Druck & Verlag GmbH [1997] QB 426 .… 40.13 Henriques v General Privileged Dutch Co Trading to the West Indies (1728) 2 Ld Raym 1532; (1728) 93 ER 862 .… 16.36, 35.26 Henry, In the Marriage of (1995) 19 Fam LR 227 .… 13.20, 13.21 — v Geopresco International Ltd [1976] QB 726 .… 40.16, 40.17 — v Henry (1996) 185 CLR 571 .… 8.19, 8.21, 8.28, 8.36, 8.44, 8.45, 8.49, 8.52–8.54, 8.59, 9.28, 13.8, 13.20, 13.21, 26.6, 27.28 Her Majesty’s Revenue and Customs v Hashu Dhalomal Shahdadpuri [2011] SGCA 30 .… 41.11 Herman v Meallin (1891) 8 WN (NSW) 38 .… 40.6 Hermanowski v United States of America (2006) 149 FCR 93 .… 17.8 Hernandez v Robles (2006) 855 NE 2d 1 (New York) .… 24.8 Hernando, Re; Hernando v Sawtell (1884) 27 Ch D 284 .… 38.10 Heron v National Trustees Executors and Agency Co of Australasia Ltd [1976] VR 733 .… 29.23, 29.29, 30.34 Hesperides Hotels Ltd v Muftizade [1979] AC 508 .… 3.1, 3.121, 3.126 Heuston v Barber (1990) 19 NSWLR 354 .… 38.38, 38.42, 38.43 Hewitt, Re [1915] 1 Ch 228 .… 34.25 Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1997) 150 ALR 345 .… 5.15 — v — (No 5) (1998) 90 FCR 1 .… 7.5, 7.55, 7.75 — v United Shipping Adriatic Inc (1998) 89 FCR 166 .… 7.18, 7.42 Hi-Gene Ltd v Swisher Hygiene Franchise Corp [2010] NZCA 359 .… 43.9 Hicks v Ruddock (2007) 156 FCR 574 .… 10.76, 10.82 Hightime Investments Pty Ltd v Adamus Resources [2012] WASC 295 .… 23.11 HIH Casualty and General Insurance Ltd, Re (2005) 215 ALR 562 .… 36.59 — (in liq) v R J Wallace (2006) 68 NSWLR 603 .… 7.39, 7.68, 19.9 — Re; McGrath v Riddell [2008] 1 WLR 852 .… 36.45, 36.58 — v Chase Manhattan Bank [2001] 2 Lloyd’s Rep 483 .… 8.59

— v Chase Manhattan Bank [2003] 2 Lloyd’s Rep 61 .… 8.59 HIH Insurance Limited, Re [2008] 1 WLR 852 .… 36.1 Hilditch Pty Ltd v Dorval Kaiun KK (No 2) (2007) 245 ALR 125 .… 32.29 Hill v Hibbit (1870) 25 LT 183 .… 16.34 Hill, In the Goods of (1870) LR 2 P & D 89 .… 37.11 His Beatitude Archbishop Torkom Manoogian, Armenian Patriarch of Jerusalem v Sonsino [2002] EWHC 1304 (Ch) .… 34.19, 34.20 Hiscox v Outhwaite [1992] 1 AC 562 .… 43.5, 43.8 Hitchcock v Pratt (2010) 79 NSWLR 687 .… 2.1, 2.3, 38.42, 38.45, 38.47 Ho v Akai Pty Ltd (in liq) ACN 001 500 714 (2006) 24 ACLC 1526; [2006] FCAFC 159 .… 3.44 Hobbs v Australian Press Assoc [1933] 1 KB 1 .… 35.14 Hockey v The Mother o’Gold Consolidated Mines Ltd (1903) 29 VLR 196 .… 33.23, 33.26, 33.27, 33.70 Hodge v Club Motor Insurance Agency Pty Ltd (1974) 7 SASR 86 .… 2.20 Hodgetts v Shipowners’ Mutual Protection and Indemnity Association (Luxembourg) [1999] 2 Qd R 58 (QCA) .… 7.5 Hodgson v Dimbola Pty Ltd [2009] ACTSC 59 .… 16.4, 16.16, 20.9 — v Stawell (1854) 1 VLT 51 .… 25.9 Hoerter v Hanover Telegraph Works (1893) 10 TLR 103 .… 7.62, 7.67 Hofman v Hofman [1965] NZLR 795 .… 27.3 Hogan v Australian Crime Commission (2010) 240 CLR 651 .… 5.4 — v Hogan (No 2) [1981] 2 NSWLR 768 .… 29.14 — v Moore (1885) 6 ALT 156 .… 40.57 Holden v Holden [1968] VR 334 .… 13.37, 28.14 Hole Estate, Re [1948] 4 DLR 419 .… 32.4 Holland v Lampen-Wolfe [2000] 1 WLR 1573, 3 All ER 833 (HL) .… 10.10 Hollander v McQuade (1896) 12 WN (NSW) 154 .… 8.47

Hollandia, The [1983] AC 565 .… 7.42, 7.43, 19.41 Homestake Gold of Australia Ltd v Peninsula Gold Pty Ltd (1996) 20 ACSR 67 .… 19.53, 22.7 Homeward Bound GM Co (N/L) v McPherson (1895) 17 LR (NSW) (Eq) 281 . … 17.14, 17.15 Honda Motor Co v Superior Court, 12 Cal Rptr 861 (Cal Ct App, 1992) .… 3.34, 11.6 Hong Kong Kapok Vacuum Flask Enterprises Pty Ltd v Megavest International Pty Ltd [2003] VSC 330 .… 23.11, 23.20 Hong Kong and Macao Glass Co v Gritton (1886) 12 VLR 128 .… 40.46 Hooper v Gumm (1867) LR 2 Ch App 282 .… 33.70 Hooshmand v Ghasmezadegan (2000) FLC 93-044 .… 25.9, 25.13, 25.14, 25.18, 25.21 Hope v Carnegie (1866) LR Vol 1 320 .… 9.17, 37.23 Horne v Rouquette (1878) 3 QBD 514 .… 22.4, 22.35 Hornett v Hornett [1971] P 255 .… 26.54, 26.64 Hospital Products Ltd v Ballabil Holdings Pty Ltd [1984] 2 NSWLR 662 .… 4.26 Houlditch v Marquess of Donegal (1834) 2 Cl & F 470 .… 27.34, 40.39 House v R (1936) 55 CLR 499 .… 8.30–8.32 House of Spring Gardens Ltd v Waite [1991] 1 QB 241 .… 40.69, 40.86 Houston, Re (1826) 1 Russ 312 .… 31.6 Howard, Re [1924] 1 DLR 1062 .… 38.35–38.37 — v — [2003] FCA 41 .… 8.53 — v National Bank of New Zealand Ltd [2002] FCA 1257 .… 3.11 Howison’s Application, Re [1959] E Af 568 .… 24.24 Hoy v Hoy (1906) 25 NZLR 857 .… 13.37 Hoyles, Re [1911] 1 Ch 179 .… 32.5, 32.8, 32.11, 32.15 HRX Holdings Pty Ltd v Pearson (2012) 205 FCR 169 .… 5.18

Huber v Steiner (1835) 2 Bing NC 202 .… 16.1 Huddart Parker Ltd v The Ship Mill Hill (1950) 81 CLR 502 .… 6.32, 7.80, 8.61 Hudson Fabric Shoppe, Re [1926] 1 DLR 199 .… 33.24 Hugh v Skinner [2012] FamCA 145 .… 8.21, 8.35, 8.62, 8.64 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425 .… 3.44, 3.49 Humphries v Humphries [1992] NZFLR 18 .… 13.20, 13.23, 13.26 Hunt v BP Exploration Co (Libya) Ltd (1979) 144 CLR 565 .… 41.8 — v — [1981] 1 NZLR 209 .… 41.8 — Estate of v R (1968) 67 DLR (2d) 373 .… 32.42, 33.37 Hunter v Hunter [1962] P 1 .… 27.34 — v Potts (1791) 4 TR 182 .… 36.60, 36.61 Hunter Grain Pty Ltd v Hyundai Merchant Marine Co Ltd (1993) 117 ALR 507 .… 20.12, 20.18 Huntington v Attrill [1893] AC 150 .… 14.27, 18.17, 18.18, 40.95 Hyde v Hyde (1866) LR 1 P&D 130 .… 24.3, 24.14, 24.34, 24.36, 24.50 Hyland v Hyland (1971) 18 FLR 461 .… 13.19, 13.20, 13.23 I I Congreso del Partido [1983] 1 AC 244 .… 10.2, 10.25 IBSSL v Minerals Trading Corp [1996] 1 All ER 1017 .… 43.15 ICI Australia Operations Pty Ltd v Kidde-Graviner Ltd [1999] WASCA 65 .… 3.44, 3.74, 20.9 Idemitsu Queensland Pty Ltd v Agipcoal Australia Pty Ltd [1996] 1 Qd R 26 .… 23.4, 23.7 Idoport Pty Ltd v National Australia Bank (2000) 50 NSWLR 640 .… 17.8, 17.30 Igra v Igra [1951] P 404 .… 26.66, 26.68, 40.84 Imagination Entertainment Ltd v Hetherington [2011] SASC 41 .… 8.45

Imam Din v National Assistance Board [1967]2 QB 213 .… 24.47 IMC Aviation Solutions Pty Ltd v Altain Kluder LLC (2011) 282 ALR 717 .… 43.7 Imperial Life Assurance Co of Canada v Colmenares (1967) 62 DLR (2d) 138 . … 3.64 Inasmuch Community Inc v Bright [2006] NSWCA 99 .… 40.53 Incitec Limited v Alkimos Shipping Corporation (2004) 138 FCR 496 .… 7.29, 7.80, 7.81, 7.84, 7.87, 7.90 Independent Commission Against Corruption v Cornwall (1993) 38 NSWLR 207 .… 11.32 Independent Insurance Co, Re (2005) 193 FLR 43 .… 36.41 Independent State of Papua New Guinea (No 2), Re [2001] 2 Qd R 162 .… 17.9 Independent Trustee Services Ltd v Morris (2010) 79 NSWLR 425 .… 16.37, 40.23, 40.25, 40.40 Indian Fortune, The [1985] 1 Lloyd’s Rep 344 .… 7.86 Industrial Commission of Wisconsin v McCartin, 330 US 622, 67 S Ct 886 (1947) .… 42.1 Industrie, The [1894] AC 201 .… 19.89 Indyka v Indyka [1969] 1 AC 33 .… 12.4, 26.37, 26.41–26.43, 26.45, 26.51, 26.55, 26.56 Infant, Re (1934) 34 SR (NSW) 349 .… 30.25 — [1973] Qd R 116 .… 13.38 — [1981] Qd R 225 .… 13.35, 13.38, 30.3 Infant M, Re (1967) 87 WN (NSW) (Pt 1) 48 .… 30.4 ING USA Annuity and Life Insurance Co v J P Morgan Securities Inc [2009] WASC 157 .… 11.51 Inglis v Commonwealth Trading Bank (1972) 20 FLR 30 .… 3.119, 3.135 — v — (1969) 119 CLR 334 .… 5.20 — v Robertson [1898] AC 616 .… 32.29, 33.22, 33.23, 33.27 — v Usherwood (1801) 1 East 515 .… 33.24

Innovia Films Ltd v Frito-Lay North America Inc [2012] EWHC 790 .… 21.12 Inquiry, Election of Officers TWU, Re (1990) 89 ALR 575 .… 5.16 Insurance Commr v Joyce (1948) 77 CLR 39 .… 20.29 Insurance Corporation of Hanover Inc v Latino Americana de Reasseguros SA 868F Supp 520 .… 7.85 Intelsat Corp v Multivision TV LLC, 736 F Supp 2d 1334 (SD Fla 2010) .… 3.34, 11.6 International Association of Science and Technology for Development v Hamza (1995) 122 DLR (4th) 92 .… 16.36 International Factors (Singapore) Pty Ltd v Speedy Tyres Pty Ltd [1991] Tas R (NC) N9; (1991) 5 ACSR 250 .… 23.11 International Tank and Pipe SAK v Kuwait Aviation Fuelling Co KSC [1975] QB 224 .… 39.11 International Westminster Bank plc v Okeanos Maritime Corp [1987] 3 All ER 137 .… 36.70, 36.72 Intpro Properties v Sauvel [1983] QB 1019 .… 10.26, 10.47 Iran Vojdan, The [1984] 2 Lloyd’s Rep 380 .… 7.63 IRC v Bullock [1976] 3 All ER 353 .… 13.19 — v Stype Investments Ltd [1982] Ch 456 .… 37.7, 37.14 Irving Trust Co v Maryland Casualty Co, 83 F 2d 168 (2d Cir, 1936) .… 33.7 Irwin v State of Queensland [2011] VSC 291 .… 6.28, 6.30 Islamic Arab Insurance Co v Saudi Egyptian American Reinsurance Co [1987] 1 Lloyd’s Rep 315 .… 19.37 Islamic Republic of Iran v Barakat Galleries Ltd [2009] QB 22 .… 18.16, 18.19, 18.29, 18.33 — v Berend [2007] EWHC 132 .… 15.15 Israel Discount Bank of New York v Hadjipateras [1983] 3 All ER 129 .… 40.14, 40.56, 40.62, 40.63, 40.68, 40.76 ITC Distribution Ltd v Filmpac Holdings Ltd (VSC, Fullagar J, No 4787/90, 6 March 1990, unreported, BC 9000889) .… 23.20

Ivanovski v Perdacher [2006] NSWSC 978 .… 8.29 Iveagh v IRC [1954] Ch 364 .… 34.20, 34.23 Ives v Lim [2012] WASCA 136 .… 4.9 J J (a child), Re [2005] UKHL 40 .… 28.41 — (return to foreign jurisdiction: convention rights), Re [2004] EWCA Civ 417 .… 28.41 J (A Minor) (Abduction), Re [1990] 2 AC 562 .… 13.35, 13.37, 13.39, 28.58 J N Taylor Finance Ltd v Bond Corporation Finance Ltd (1991) 55 SASR 428 . … 35.10 J Schmidt v Government Insurance Office of New South Wales [1973] 1 NSWLR 59 .… 20.67 J v C [1970] AC 668 .… 28.22 JA (Child Abduction: Non-Convention Country), Re [1998] 1 FLR 231 .… 28.41 Jabbour v Custodian of Absentee’s Property of State of Israel [1954] 1 All ER 145 .… 17.15, 32.32, 32.33, 33.62, 33.66 Jablonowski v Jablonowski (1972) 28 DLR (3d) 440 .… 13.19 Jackson v John Fairfax & Sons Ltd (1986) 98 FLR 145 .… 6.14 — v Mylan (2012) 263 FLR 148 .… 6.2, 6.13 — v Spittall (1870) LR 5 CP 542 .… 3.80 — v Sterling Industries Ltd (1987) 162 CLR 612 .… 4.16, 4.21 Jacobs v Australian Abrasives Ltd [1971] Tas SR 92 .… 3.74 — v Beaver (1908) 17 Ont LR 496 .… 40.71 — v Credit Lyonnais (1884) 12 QBD 589 .… 19.92 — v Jacobs [1950] P 146 .… 27.32 Jacobson v Frachon (1927) 44 TLR 103 .… 40.83 Jacombe v Jacombe (1961) 105 CLR 355 .… 16.34, 25.73

Jaffer v Williams (1908) 25 TLR 12 .… 40.25 Jakstas v Jakstas [1957] QWN 17 .… 13.38 Jalamatsya, The [1987] 2 Lloyds Rep 164 .… 5.15 James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 357 .… 6.13, 6.15, 6.34 — v Hall (1998) 43 NSWLR 554 .… 16.19, 17.7, 17.10, 17.32 James Hardie Industries Pty Ltd v Grigor (1998) 45 NSWLR 20 .… 8.17, 8.40 James N Kirby Pty Ltd v International Cargo Control Pty Ltd [2000] NSWSC 289 .… 8.50 James North & Sons Ltd v North Cape Textiles Ltd [1984] 1 WLR 1428 .… 3.97 James v Minister for Immigration & Multicultural Affairs [2001] FCA 909 .… 26.12 Jamieson v Commr for Internal Revenue (2007) 210 FLR 210 .… 13.19 — v — [2007] NSWSC 324 .… 41.11 Janesland Holdings Pty Ltd v Simon [2000] ANZ Conv R 112 .… 19.47 Janetzki v Janetzki (1999) 28 MVR 532 .… 6.43 Jani-King Franchising Inc v Jason [2013] QSC 155 .… 40.16, 41.6 Jarman, Re; Ex parte Cook (No 1) (1996) 188 CLR 595; 143 ALR 129 .… 5.3 Jaroszonek v Jaroszonek [1962] SASR 157 .… 25.14, 25.21 JayaarImpex Limited v Toaken Group Limited [1996] 2 Lloyd’s Rep 437 .… 7.17 Jeannot v Fuerst (1909) 25 TLR 424 .… 40.33, 40.84 Jenton Overseas Investment Pte Ltd v Townsing (2008) 221 FLR 398 .… 41.16 — (2008) 21 VR 241 .… 40.78 Jet Holdings Inc v Patel [1990] QB 335 .… 40.67, 40.83, 40.86 Jewish National Fund Inc v Royal Trust Co (1966) 53 DLR (2d) 577 .… 34.20 JGP & ASP, Application of, Re AJP [2011] NSWSC 151 .… 30.31 JH Rayner (Mincing Lane) Ltd v Dept of Trade and Industry [1989] Ch 253 .… 10.60, 10.61

— v — [1989] Ch 72 .… 10.3, 10.14 — v — [1990] 2 AC 418 .… 10.3, 10.78 JLM v Director-General, NSW Dept of Community Services (2001) 206 CLR 401 .… 28.71 Jogia (A Bankrupt), Re [1988] 1 WLR 484 .… 21.5, 21.6 — [1988] 2 All ER 328 .… 3.63 John Downing v Al Ta-meer Establishment [2002] EWCA Civ 721 .… 7.30 John J Shanahan & Co v George B Landers Construction Co Inc, 266 F 2d 400 (1959) .… 33.24 John Kaldor Fabricmaker Pty Ltd v Mitchell Cotts Freight (Australia) Pty Ltd (1989) 18 NSWLR 172 .… 3.64, 19.26, 19.33 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 .… 1.19, 2.2, 2.16, 2.29, 2.31, 3.8, 3.9, 5.16, 8.38, 12.4–12.6, 12.15, 12.18, 12.19, 12.21, 14.7, 14.23, 14.26, 16.3–16.8, 16.11, 16.12, 16.16–16.20, 16.22, 16.24–16.27, 16.29, 16.41, 16.43, 20.2, 20.7, 20.15, 20.22, 20.37, 20.46, 20.48, 20.54, 20.55, 20.58, 20.60, 20.61, 20.67, 20.76, 29.35, 29.43, 33.72, 36.64 John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1999) 196 CLR 553; 161 ALR 318 .… 5.17 John Russell and Co Ltd v Cayzer, Irvine and Co Ltd [1916] 2 AC 298 .… 3.86, 3.87 John Sanderson and Co (NSW) Pty Ltd (in liq) v Giddings [1976] VR 421 .… 3.10 John Walker & Son Ltd v Henry Ost & Co Ltd [1970] 2 All ER 106 .… 20.17 Johnson, Re [1903] 1 Ch 821 .… 15.22 — v Billyard (1890) 11 NSWLR 319 .… 33.6 — v Lemeki and Papua New Guinea [1997] HREOCA 26 .… 10.24, 10.57 Johnson Matthey & Wallace Ltd v Ahmad Alloush (1984) 135 NLJ 1012 (CA) . … 16.41 Johnson Tiles Pty Ltd v Esso Australia Ltd [2001] FCA 421 .… 6.9 Johnstone v Commonwealth (1979) 143 CLR 398 .… 5.3

— v Pedlar [1921] AC 262 .… 10.71 Jolley v Mainka (1933) 49 CLR 242 .… 23.10 Jones, Re (1961) 25 DLR (2d) 595 .… 29.9 — Re Estate of (1921) 182 NW 227 (Iowa) .… 13.21 — v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270 . … 10.2, 10.5, 10.14, 10.29 — v Queensland [1998] 2 Qd R 385 .… 3.120 — v TCN Channel Nine Pty Ltd (1992) 26 NSWLR 732 .… 6.42 Jonstan Pty Ltd v Nicholson (2003) 58 NSWLR 223 .… 3.82 Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37 .… 40.53 Joss v Snowball (1969) 72 SR (NSW) 218 .… 20.37 Joyce v Joyce [1979] Fam 93 .… 26.62 — v Sunland Waterfront (BVI) Ltd (2011) 195 FCR 213; 281 ALR 52 .… 11.25, 11.26, 11.29 Joye v Beach Petroleum NL (1996) 67 FCR 275 .… 11.43, 36.45 — v Sheahan (1996) 62 FCR 417 .… 3.11 JP Morgan Chase Bank NA v PT Indah Kiat Pulp and Paper Corp [2012] NSWSC 1279 .… 40.32 Juan Ismael & Co Inc v Indonesian Government [1955] AC 72 .… 10.13 Judd v Judd (1958) 75 WN (NSW) 147 .… 13.38 Judgment Debtor, Re [1939] Ch 601 .… 41.27 Judiciary and Navigation Acts (Advisory Opinions Case), Re (1921) 29 CLR 257 .… 5.2 Jugoslavenska Oceanska Plovidba v Castle Investment Co Inc [1974] QB 292 . … 23.12, 23.15, 39.12 K K v D [2003] 10 JJC 0701 .… 29.9 K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; 252 ALR 471 .… 5.21

KA & C Smith Pty Ltd v Ward (1998) 45 NSWLR 702 .… 19.3 Kahler v Midland Bank Ltd [1950] AC 24 .… 19.2, 33.10 Kalantarizadeh, Re [1995] IRTA 5593 .… 25.47, 25.49 Kalblue Pty Ltd, Re (1994) 12 ACLC 1057 .… 36.66 Kamouh v Associated Electrical Industries International Ltd [1980] QB 199 .… 16.38, 31.7 Karfarin Bank v Dara (No 2) [2010] 1 Lloyd’s Rep 236 .… 22.28 Karides and Wilson, In the Marriage of (1998) 23 Fam LR 435 .… 28.18, 28.20 Karim v Khalid (2007) 38 Fam LR 300 .… 28.18 Kassim v Kassim [1962] P 224 .… 24.4, 24.24 Katavic v Katavic (1977) 29 FLR 510 .… 25.21, 25.22 Katayama v Japan Airlines Corporation (2010) 79 ACSR 286 .… 36.13 Kaufman v Gerson [1904] 1 KB 591 .… 18.39, 18.43 Kaur v Ginder (1958) 13 DLR (2d) 465 .… 24.37 — v Narula [2007] FMCAFAM 657 .… 13.19 Kavir Pty Ltd v Dwyer [1973] Qd R 192 .… 35.40 Kawasaki Steel Corporation v ‘The Daeyang Honey’ (1993) 120 ALR 109 .… 5.12 Kay’s Leasing Corp Pty Ltd v Fletcher (1964) 116 CLR 124 .… 12.15, 12.23, 15.12, 19.15, 19.74 Kay, Re [1927] VLR 66 .… 34.24 Kaye v Sutherland (1887) 20 QBD 147 .… 3.94 Keele v Findley (1990) 21 NSWLR 444 .… 40.70–40.74, 41.16 Keenco v South Australia & Territory Air Service Ltd (1974) 8 SASR 216 .… 40.20 Kehr, Re [1951] 2 All ER 812 .… 37.29 Keil v Keil [1947] VLR 383 .… 13.35 Kellow v Irish Murphy’s Pty Ltd [2010] VSC 239 .… 6.30

Kelly v Panayiotou [1980] 1 NSWLR 15 .… 28.15 — v Selwyn [1905] 2 Ch 117 .… 33.58, 33.74–33.77 Kemeny v Kemeny (1998) 23 Fam LR 105 .… 8.64, 26.6, 27.24, 27.28, 27.34, 40.32, 40.50 Kemp v Piper [1971] SASR 25 .… 12.17 Kempe v Webber (2003) 31 Fam LR 332 .… 30.3 Kenda v Johnson (1992) 15 Fam LR 369 .… 6.26 Kendall v Kendall [1977] Fam 208 .… 26.69 Kent v SS Maria Luisa (No 2) (2003) 130 FCR 12 .… 5.8, 5.10 Kenward v Kenward [1951] P 124 .… 24.24 Ker’s Settlement Trusts, Re [1963] 1 Ch 553 .… 34.30 Kerr v Kerr (1981) 147 DLR (3rd) 384 .… 27.13 — v Palfrey [1970] VR 825 .… 20.57–20.59 Kerrigan v Commissioner of Public Health, 289 Conn 135; 957 A 2d 407 .… 24.8 Kertesz v Kertesz [1954] VLR 195 .… 13.22 Keshaw, Re [1994] ACL Rep 50 FC 6 .… 36.55 Kessler’s Estate, Re (1964) 203 NE 2d 221 .… 27.14 Kevin (validity of marriage of transsexual), Re [2001] FamCA 1074 .… 24.15, 24.16 Khademollah, In the Marriage of (2000) 26 Fam LR 686 (FC) .… 8.47 Khamis v Khamis (1978) 4 Fam LR 410 .… 28.35 Khan v Khan [1963] VR 203 .… 24.18, 24.22, 24.34, 24.50 Khan’s Settlement Trusts, Re [1966] Ch 567 .… 38.63, 38.74 Khoo Hooi Leong v Khoo Hean Kwee [1926] AC 529 at 543 .… 29.13 Khoury v Khayat [1943] AC 507 .… 23.9 Ki Won Yoon v Young Dung Song (2000) 158 FLR 295 .… 40.72, 40.73, 41.2 Kilah v Director-General Department of Community Services (2008) 39 Fam

LR 431 .… 13.37, 13.39, 28.68 Kim Meller Imports Pty Ltd v EurolevantSpA (1986) 7 NSWLR 269 .… 7.42 Kim Michael Productions Pty Ltd v Tropical Islands Management Ltd [2010] NSWSC 269 .… 8.34, 8.47 King v Brandywine Reinsurance Co (UK) Ltd [2004] 2 Lloyd’s Rep 670 .… 19.9 King of Spain v Machado (1827) 4 Russ 225; 38 ER 790 .… 17.40 Kingdom of Spain v Christie Ltd [1986] 1 WLR 1120 .… 18.30 Kingston Futures Pty Ltd v Waterhouse [2012] QSC 212 .… 17.32 Kinihill Engineers Pty Ltd v Zhen Yun Ltd [1992] ACL Rep 85 SA 4 .… 3.41 Kinoshita & Co, Re (1961) 287 F 2d 951 .… 7.71 Kirchner v Gruban [1909] 1 Ch 413 .… 7.86 Kirwan’s Trusts, Re (1884) 25 Ch D 373 .… 38.67 Kloebe, Re (1884) 28 Ch D 175 .… 37.34 KMP Coastal Oil Pte Ltd v MV Iran Amanat (FCA, Tamberlin J, 1996, BC9605070, unreported); (reversed on other grounds: (1999) 196 CLR 130) .… 3.113, 3.115 Knauf UK GmbH v British Gypsum Ltd [2002] 1 WLR 970 .… 3.29 Knight, Re [1898] 1 Ch 257, 260–1 (CA) .… 31.1, 31.8 Kochanski v Kochanska [1958] P 147 .… 25.14, 25.20, 25.21 Koe v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 508 . … 13.31 Koechlin et Cie v Kestenbaum [1927] 1 KB 889 .… 22.13, 22.17, 22.24 Kohnke v Karger [1951] 2 KB 670 .… 40.48 Kohut v Fedyna [1964] 2 OR 296 .… 30.35 Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 .… 9.5 Konamaneni v Rolls Royce Industrial Power (India) Ltd (2002) 1 WLR 1269 . … 8.40, 21.15, 35.42–35.44 Koninklijke Lederfabriek Oisterwijk v Chase National Bank of the City of New

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426 .… 43.6 Kuwait Oil Tanker Co SAK v Al Bader (Moore-Bick J, 16 November 1998, unreported), aff’d [2000] All ER (Comm) 271 .… 21.5, 21.6 Kwee Seng Chio v Basuki [2002] WASC 60 .… 3.93 Kwok v Commr of Estate Duty [1988] 1 WLR 1035 .… 32.33 L L & W Developments Pty Ltd v Della [2003] NSWCA 140 .… 8.53 L (Minors), Re [1974] 1 All E 913 .… 28.26 L v FINA CAS 95/142 .… 39.20 L v L [1959] VR 213 .… 30.34 L’Abbate v Collins & Davey Motors Pty Ltd [1982] VR 28 .… 16.38, 37.6 La Baloise Compagnie d’Assurances Contre L’Incendie v Western Australian Insurance Co Ltd [1939] VLR 363 .… 11.22 La Donna Pty Limited v Wolford AG (2005) 194 FLR 26 .… 7.32–7.34 Lacon v Higgins (1822) 3 Stark 178; 171 ER 813 .… 17.25 Laemthong International Lines Co Ltd v BPS Shipping Ltd (1997) 190 CLR 181 .… 5.9 Laker Airways v Pan American World Airways, 607 F Supp 324, 327 (SDNY 1985) .… 11.35 — v Sabena Belgian Airays 731 F 2d 909 (1984) .… 9.4 Lambe, In the Will of [1972] 2 NSWLR 273 .… 2.20, 37.16, 38.12, 38.13 Lambert Leasing Inc v QBE Insurance Australia Ltd (2011) 16 ANZ Ins Cas 61–896 .… 8.27 — v — [2012] NSWSC 953 .… 17.8 Laminex (Australia) Pty Ltd v Coe Manufacturing Co [1999] NSWCA 370 .… 8.60, 19.33 Lamshed v Lake (1958) 99 CLR 132 .… 2.4, 2.9, 42.24 Landry v Lachapelle [1937] OR 444 .… 33.7, 33.20 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; 145 ALR

96 .… 1.19, 1.21 Langley’s Settlement Trusts, Re [1962] Ch 541 .… 14.15, 18.58 LarkdenPty Ltd v Lloyd EnergySystemsPty Ltd [2011] NSWSC 268 .… 7.52, 7.53 Larnach v Alleyne (1862) 1 W & W (E) 342 .… 40.57, 40.65 Larsen Oil and Gas Pte Ltd v Petropod Ltd [2011] 3 SLR 414 .… 7.57, 7.75 Lashley v Hog (1804) 4 Paton 581 .… 27.9, 27.11, 27.16 Laurie v Carroll (1958) 98 CLR 310 .… 1.22, 3.4, 3.5, 3.11, 3.115 Lauritzen v Larsen 345 US 571 (1953) .… 20.76 Law v Garett (1878) 8 Ch D 26 .… 7.86 — v Gustin [1976] Fam 155 .… 26.51 Lawrence v Lawrence [1985] Fam 106 .… 12.15, 15.32, 15.33, 25.29, 25.56, 26.59, 26.60 Lawson v Commr for Inland Revenue [1896] 2 Ir R 418 .… 32.13 — v Vacuum Brake Co (1884) 27 Ch D 137 .… 11.22 Lawson’s Trusts, Re [1896] 1 Ch 175 .… 36.5 Lazard Bros & Co v Midland Bank Ltd [1933] AC 289 .… 16.36, 17.5, 17.18, 17.21, 35.27, 35.28 Lazarewicz (otherwise Fadanelli) v Lazarewicz [1962] P 171 .… 25.4, 25.5, 25.20 Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 .… 20.71 Le Feuvre v Sullivan (1855) 10 Moo PC 1; 14 ER 389 .… 33.73, 33.77 Le Mesurier v Le Mesurier [1895] AC 517 .… 26.55 Lea v Smith [1923] SASR 560 .… 37.6 Leach Nominees Pty Ltd v Walter Wright Pty Ltd [1986] WAR 244 .… 3.60 Lebel v Tucker (1867) LR 3 QB 77 .… 22.18, 22.24 Lecouturier v Rey [1910] AC 262 .… 32.38 Leda Holding Pty Ltd v Oraka Pty Ltd [1998] ANZ Conv R 582; (1998) ATPR 41-601 .… 8.59

Lederer v Hunt (2007) FamCA 55 .… 27.30 Leduc, Re (1961) 25 DLR (2d) 680 .… 30.9 Lee (by his next friend Lee) v Minister for Immigration and Citizenship (2011) 199 FCR 335 .… 13.35 Lee Hing, Will of, Re (1901) 1 SR (NSW) (E) 199 .… 17.23, 38.11 Lee v Abdy (1886) 17 QBD 309 .… 33.57, 33.67 — v Lau [1967] P 14 .… 14.27, 24.17, 26.28 Leigh-Mardon Pty Ltd v PRC Inc (1993) 44 FCR 88 .… 7.40, 7.48, 7.80 Leighton International Ltd v Hodge [2011] NSWSC 1381 .… 8.40, 17.29 Leithead v Leithead (1991) 15 Fam LR 56 .… 6.19 Lemenda Trading Co Ltd v African Middle East Petroleum Co Ltd [1988] QB 448 .… 18.42, 18.46, 18.53 Lendrum v Chakravarti 1929 SC 96 .… 25.37 Lengyel and Rasad, In the Marriage of (No 2) (1990) 14 Fam LR 198 .… 11.47, 11.48, 24.52, 25.72, 29.6 Lepre v Lepre [1965] P 52 .… 25.41, 26.67 Leroux v Brown (1852) 12 CB 801 .… 16.24, 19.56 Lesotho Highlands Development Authority v Impreglio SpA [2006] 1 AC 221 . … 23.11 Lester v Lester (2007) 36 Fam LR 488 .… 16.34, 25.4, 25.73 Lett v Lett [1906] 1 IR 618 .… 9.2, 9.19 Levy v Reddy [2009] FCA 63 .… 33.75, 36.39 Lew v Priester [2012] VSC 57 .… 8.27 Lewal’s Settlement Trusts, Re [1918] 2 Ch 391 .… 38.64, 38.71 Lewincamp v ACP Magazines Ltd [2008] ACTSC 69 .… 16.16 Lewis Construction Co Pty Ltd v Tichauer SA [1966] VR 341 .… 3.60, 3.70, 3.74, 14.55, 20.6 Lewis v Balshaw (1935) 54 CLR 188 .… 37.10, 37.13, 37.15 — v Beck (SC(Vic), Beach J, 12 May 1998, 4820/98, BC9802042, unreported) .

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Livesley v Horst [1925] 1 DLR 159 .… 16.14, 16.17, 19.103, 22.28 Livingston v Commr of Stamp Duties (Q) (1960) 107 CLR 411 .… 32.12 LK v Director-General, Department of Community Services (2009) 237 CLR 582 .… 13.3, 13.19, 13.35, 13.37, 28.42, 28.49 Lkt Industrial Berhad (Malaysia) v Chun [2004] NSWSC 820 .… 43.8 Lloyd v Guibert (1865) LR 1 QB 115 .… 17.40 — v Lloyd [1962] VR 70 .… 1.20, 13.8 Lloyd Werft Bremerhaven GmbH v Owners of the ship Zoya Kosmodemyanskaya (Tamberlin J, FCA, 15 May 1997, BC9701974 at 30–2, unreported) .… 10.72 LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575; 49 ALR 599 . … 5.4 Lodge v Lodge (1963) 107 Sol Jo 437 .… 25.3 Logan v Bank of Scotland (No 2) [1906] 1 KB 141 .… 8.4, 9.27 London & Brazilian Bank v Maguire (1895) QR 8 SC 358 .… 22.29 Lord Cable (dec’d), Re [1976] 3 All ER 417 .… 18.29 — Re [1977] 1 WLR 7 .… 34.17, 34.20 Lord Cloncurry’s Case (1811) .… 25.21 Lorillard, Re [1922] 2 Ch 638 .… 37.30, 37.31, 37.36 Loteka Pty Ltd (1989), Re 15 ACLR 620 .… 22.23 Loucks v Standard Oil Co of New York (2004) 61 NSWLR 75 .… 18.34, 18.36 Lubbe v Cape Plc (No 2) [2000] 4 All ER 268 .… 8.9, 8.11, 8.17 Lucasfilms Ltd v Ainsworth [2012] 1 AC 208 .… 7.52, 10.76, 10.83 Luck’s Settlement Trusts, Re [1940] Ch 864 .… 29.22–29.24 Luder v Luder (1963) 4 FLR 292 .… 17.25, 25.4 — v — [1964] ALR 3 .… 12.13, 14.4 Lumbers v Cook (2008) 232 CLR 635 .… 21.1 Lundgren v O’Brien (No 2) [1921] VLR 361 .… 25.41

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Mali v Keeper of the Common Jail (Wildenhus’ Case) 120 US 1 (1887) .… 20.73 Mallon & Co Lawyers Pty Ltd v Gam [2012] WASC 376 .… 3.82, 8.63 Man (Sugar) Ltd v Haryanto (No 2) [1991] 1 Lloyd’s Rep 429 .… 7.37 Mandel v Mandel [1955] VLR 51 .… 26.28 Manifest Shipping Co Ltd v Uni-Polaris Insurance Co Ltd [2003] 1 AC 469 .… 8.23 Manning v Manning [1958] P 112 .… 26.28 Manolopoulos v Pnaiffe [1930] 2 DLR 169 .… 40.71 Maples v Maples [1988] Fam 14 .… 41.24 Mareva Compania Naviera SA v International Bulk Carriers SA [1980] 2 All ER 213 .… 4.1, 9.6 Marie v Garrison (1883) 13 Abb NC 210 (NY) .… 14.15 Maritime Insurance Co Ltd v Geelong Harbour Trust Commrs (1908) 6 CLR 194 .… 8.4, 8.16 Maritime Union of Australia, Re; Ex parte CSL Pacific Shipping Inc (2003) 214 CLR 397 .… 20.73 Mark, Re [2003] Fam CA 822 .… 29.35 Marks v Casey (1890) 7 WN (NSW) 35 .… 16.37 Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223 . … 3.116 Marlex Petroleum Inc v Har Rai [1987] 1 SCR 57 .… 16.43, 33.72 Marrache v Ashton [1943] AC 311 .… 23.12 Marriage Cases, In re (2008) 183 P 3d 384 (Cal) .… 24.8 Marseilles Extension Railway and Land Co, Re (1885) 30 Ch D 5981 .… 7.5 Marshall, Re [1957] Ch 507 .… 30.35 — v Fleming (2011) 279 ALR 167 .… 17.3 — v Houghton [1923] 2 WWR 553 .… 40.7, 40.25 Martens v Stokes (2012) 287 ALR 779 .… 16.4

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McCulloch v Sociedad Nacional de Marineros de Honduras 372 US 10 (1963) . … 20.73 McDonald v Director-General, Department of Community Services NSW [2006] FamCA 1400 .… 28.71, 28.76, 28.77 McDonnell Douglas Corp v Islamic Republic of Iran (1985) 758 F 2d 341 (8th Cir) .… 7.88 McDougall v Occidental Syndicate Ltd (1912) 4 DLR 727 .… 40.71 McFee Engineering Pty Ltd (in liq) v CBS Constructions Pty Ltd (1980) 44 FLR 340 .… 3.54 McGarry v Boonah Clothing Pty Ltd (1988) 80 ALR 284 .… 5.16 McGilvray, Re (1986) 66 ALR 181 .… 41.27 McGrath as Liquidators of HIH Insurance Ltd, Re [2008] NSWSC 780 .… 4.14 McGregor v Potts (2005) 68 NSWLR 109 .… 8.26, 8.43, 8.56, 8.63, 17.3 McGuinness v A-G (Vic) (1940) 63 CLR 73 .… 11.32 McHenry v Lewis (1882) 22 Ch D 397 .… 9.27 McIntyre v Eastern Prosperity Investments Pte Ltd (No 6) (2005) 218 ALR 401 .… 35.32 McJannett v Gibbs [2012] WASC 369 .… 11.46 McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 .… 1.18, 1.24, 2.2, 2.16, 12.18, 13.6, 14.52, 16.1, 16.3, 16.5, 16.8, 16.9, 16.11, 16.13, 20.22 McKee v McKee [1951] AC 352 .… 28.24 McKelvey v Meagher (1906) 4 CLR 265 .… 17.23 McKenzie, Re (1951) 51 SR (NSW) 293 .… 13.12, 13.13, 13.26 McLaren (dec’d), Estate, Re [2001] SASC 103 .… 30.34, 30.35 McLean v Pettigrew [1945] 2 DLR 65 .… 12.14 — v Shields (1885) 9 OR 699 .… 40.14 McM v C (No 1) (1980) 5 Fam LR 650 .… 13.37, 28.15 — v — (No 2) [1980] 1 NSWLR 27 .… 28.21 McManus v Clouter (No 1) (1980) 5 Fam LR 650 .… 28.14, 29.15

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Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387 .… 3.44 Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd (1933) 48 CLR 565 . … 2.27, 19.35, 19.93, 33.8, 33.9, 33.12, 33.15, 33.18 Messenger Press Pty Ltd v Commissioner of Taxation [2012] FCA 756 .… 23.4 Messina v Smith [1971] P 322 .… 26.45, 26.71, 40.93 Metal Industries (Salvage) Ltd v Owners of S T ‘Harle’ [1962] SLT 114 .… 18.15 Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 . … 3.74, 3.77, 20.8, 20.11, 20.20, 20.21 Metrocall Inc v Electronic Tracking Systems Pty Ltd (2000) 52 NSWLR 1 .… 7.58 Mette v Mette (1859) 1 Sw & Tr 416 .… 25.24 Meyer, Re [1971] P 298 .… 26.68, 40.76 — v Dresser (1864) 16 CB(NS) 646; 143 ER 1280 .… 16.47 MF Global Australia Ltd (in liq), Re (2012) 267 FLR 27 (SCNSW) .… 23.17 MGO and AAO, Application of; Re LDC [2011] NSWSC 951 .… 30.6 Michael Wilson & Partners Ltd v Robert Colin Nicholls [2008] NSWSC 1230 . … 16.26, 27.31 Microsoft Corporation v PC Club Australia Pty Ltd (2005) 148 FCR 310 .… 35.48 Middleton v Middleton [1967] P 62 .… 18.61, 26.67, 30.30 Milder v Milder [1959] VR 95 .… 25.22 Miles v Miles [2006] NSWSC 918 .… 30.28 Miliangos v George Frank (Textiles) Ltd Lord Wilberforce [1976] AC 443 .… 23.11, 23.14, 23.15, 23.20 Millennium Federation Pty Ltd v Bigjig Pty Ltd [2000] 1 Qd R 275 .… 4.22 Miller v Teale (1954) 92 CLR 406 .… 2.28, 18.20, 25.37, 26.78 — v Whitworth Street Estates (Manchester) Ltd [1970] AC 583 .… 19.30, 19.32, 39.6, 39.10, 39.11

Miller and Caddy, In the Marriage of (1986) 84 FLR 169 .… 27.34, 40.50 Mills v Commonwealth of Australia (2003) Aust Torts Reports 81-714 .… 16.16, 17.1, 17.21, 17.23, 17.32 — v Mills (1938) 60 CLR 150 .… 8.22 MindShare Communications Ltd v Orleans Investments Pty Ltd [2000] FCA 521, BC200001897 .… 41.6 Mineral Commodities Ltd v Promet Engineers (Africa) Pty Ltd [2008] FCA 30 . … 8.54, 8.60 Minister for Home Affairs v Zentai (2012) 289 ALR 644 .… 17.3 Minister of Home Affairs v Fourie (South African Constitutional Court, CCT60/04, 1 December 2005) .… 24.7 Minwalla v Minwalla [2004] EWHC 2823 (Fam) .… 34.35 Miskovic and Secretary, Dept of Families, Community Services and Indigenous Affairs, Re [2006] AATA 420 .… 13.25 Missouri Steamship Co, Re (1889) 42 Ch D 321 .… 19.84 Mitchell, Re (1881) LR 17 Ch D 515 .… 31.8 — v Superior Court 690 P 2d 625 (Cal 1984) .… 11.32 Mitchner dec’d, Re [1922] St R Qd 252 .… 34.20 Mitford v Mitford [1923] P 130 .… 26.50 Mitsubishi Motors Corp v Soler Chrysler-Plymouth Inc (1985) 473 US 614 .… 7.48, 7.54 Mitsui OSK Lines Ltd v The Ship Mineral Transporter [1983] 2 NSWLR 564 . … 3.11, 23.11 Mittelman, In the Marriage of (1984) 9 Fam LR 724 .… 28.26 MKL & MJL, Application; re YSL [2013] NSWSC 564 .… 30.31 ML Ubase Holdings Co Ltd v Trigem Computer Inc (2007) 69 NSWLR 577 .… 36.27, 36.74 Mobi-Light Inc v KK Machinery Pty Ltd [2010] WADC 105 .… 40.32, 40.37, 40.74 Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 .… 1.19, 2.1, 2.3,

2.32, 3.16 Mockbel v Attorney General (Cth) (2007) 162 FCR 278 — v — [2007] FCA 1536 .… 10.81, 18.1 Modern Building Wales Pty Limited v Limmer&Trinidad Co Limited [1975] 1 WLR 1281 .… 7.22 Mody v South Seas Cruises Ltd [2009] NSWSC 183 .… 9.27, 9.28 Mohamed v Knott [1969] 1 QB 1 .… 24.41, 24.47, 25.60 Moldauer v Constellation Brands Inc [2013] SASC 38 .… 8.38, 8.54 Moll v Royal Packet Navigation Ltd (1952) 52 SR (NSW) 187 .… 23.9 Momcilovic v R (2011) 245 CLR 1 at 26 .… 5.6 Mondial Trading Pty Ltd v Interocean Marine Transport Inc (1985) 65 ALR 155 .… 3.85, 3.111 Mong Kuen Wong v May Wong [1948] NZLR 348 .… 17.12 Monier Inc, Application of, Re (2009) 76 NSWLR 158 .… 11.52 Monro (George) Ltd v American Cyanamid and Chemical Corporation [1944] KB 432 .… 20.6, 20.11 Montan v Sanchez; Re MacDonald (1962) 34 DLR (2d) 14 .… 29.13 Monterosso Shipping Co Ltd v International Transport Workers’ Federation (The Rosso) [1982] 2 Lloyd’s Rep 120 .… 19.37 Monticello v McTiernan (1995) 19 Fam LR 108 (FC) .… 8.21, 28.18, 28.19 Moore (as debtor in possession of Australian Equity Investors) v Australian Equity Investors [2012] FCA 1002 .… 36.13, 36.18, 36.20 Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457; 31 ALR 161 .… 5.5 Moran v Pyle National (Canada) Ltd (1973) 43 DLR (2d) 239 .… 20.5 — v — (1975) 1 SCR 393 .… 3.74 Morf-Zinggeler v Morf [1999] WASC 96, BC9904142 .… 41.2, 41.16 Morgan v Higginson (1897) 13 WN (NSW) 146 .… 8.47 Morlea Professional Services Pty Ltd v Richard Walter Pty Ltd (in liq) (1999)

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8.31, 8.53 Otis Elevator Co v Guide Rails [2002] NSWSC 1004 .… 9.15 Otto Lewis, Ex parte (1749) 27 ER 1043 .… 31.5 Ovens and King Traders Pty Ltd, Re [1949] VLR 16 .… 16.24 Overall v Permanent Trustee Co Ltd [1999] FCA 1385 .… 6.9 OW Bunker and Trading Co Ltd A/S v Ship MV Mawashi Al Gasseem (No 2) (2007) 242 ALR 342 .… 5.8 Owens Bank Ltd v Bracco [1992] 2 AC 443 .… 40.69, 40.72 Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 .… 3.41 Owners of the Motor Vessel Eleftherotria v Owners of the Motor Vessel Despina R [1979] AC 685 .… 23.12 Owners of the Motor Vessel Iran Amanat v KMP Coastal Oil Pty Ltd (1999) 196 CLR 130; 161 ALR 434 .… 5.8 Owners of the Ship ‘Shin Kobe Maru’ v Empire Shipping Co Inc (1994) 181 CLR 404 .… 5.8, 5.10 Oxnard Financing SA v Rahn [1998] 1 WLR 1465 (CA) .… 16.37, 35.13, 35.33 OZ-US Film Productions Pty Ltd (in liq) v Heath [2000] NSWSC 967 .… 21.12, 34.46, 34.47 — v — [2001] NSWSC 298 .… 3.88 Oztan v New South Wales Insurance Ministerial Corporation (1995) 23 MVR 259 (NSWCA) .… 20.53 P P (a minor)(child abduction: non-convention country), Re [1997] Fam 45 .… 28.26 P (GE) (an Infant), Re [1965] Ch 568 .… 28.10 P, In the matter of [2009] EWHC 163 (Ch) .… 38.10 P v P (Minors) (Child Abduction) [1992] 1 FLR 155 .… 28.73 Pacific Insurance Co v Industrial Accident Commission (1939) 306 US 493 .… 2.22

Pacific Senator, The [2001] 2 Lloyd’s Rep 674 .… 7.63, 7.65, 7.85 Padolecchia v Padolecchia [1968] P 314 .… 25.2, 25.25, 25.28 Paget v Ede (1874) LR 18 Eq 118 .… 3.134 Paget’s Settlement, Re [1965] 1 WLR 1046 .… 34.30 Pagliotti v Hartner (2009) 223 FLR 121 .… 8.64, 26.6, 27.28, 27.31, 27.34, 27.41 Paharpur Cooling Towers Ltd v Paramount (WA) Ltd [2008] WASCA 110 .… 7.68, 7.75 Pain v Holt (1919) 19 SR (NSW) 105 .… 38.26, 38.42, 38.43 Paine, Re [1940] Ch 46 .… 25.24 Palmer, In the Will of (1904) 29 VLR 946 .… 37.3 Pamesa Valencia v Euro League Basketball (CAS 2004/A/605) .… 39.16 Pan Lloyd Shipping Ltd v Cho Hung Bank [1992] 1 HKLR 356 .… 7.20 Pan v Bow (2008) 220 FLR 271 .… 10.6, 10.9, 10.30, 10.31 Panayiotou v Sony Music Entertainment (UK) Ltd [1994] Ch 142 .… 11.42 Panayotides, In the Marriage of (1996) 21 Fam LR 446 .… 28.43 Papadopoulos v Papadopoulos [1930] P 55 .… 25.41, 40.59 Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (1993) 44 FCR 485 .… 3.80, 20.63 Papua and New Guinea Development Bank v Manton [1982] VR 1000 .… 23.4 Paramasivam v Flynn (1998) 90 FCR 489 .… 21.14, 21.15, 34.48, 34.51, 34.53, 35.42 Paramount Airways Ltd (in admin), Re [1993] Ch 223 .… 36.61 Parbery (in their capacity as liquidators for Lehman Brothers Australia Ltd (in liq)), Re (2011) 285 ALR 476 .… 36.37 Parente v Bell (1967) 116 CLR 528 .… 5.16 Park v Citibank Savings Ltd (1993) 31 NSWLR 219 .… 11.15 Parkasho v Singh [1968] P 233 .… 17.7, 24.29

Parken v Royal Exchange Assurance Co (1846) 8 SC (2d) 365 .… 8.6 Parker v Commonwealth (1965) 112 CLR 295 .… 5.19, 20.77 Parnell-Schoneveld v Repatriation Commission (2003) 74 ALD 37; [2003] FCA 153 .… 13.4, 13.13 Parouth, The [1982] 2 Lloyd’s Rep 351 .… 19.64 Parr v Rural Agents Pty Ltd [1975] 2 NSWLR 347 .… 7.39 Parson, Re [1926] 1 DLR 1160 .… 27.12 Parsons and Co Ltd v Electricity Trust of South Australia (1976) 16 SASR 93 . … 23.4 Pascarl v Oxley [2013] FamCAFC 47 .… 8.21 Pascoe, Re; Hudson [2005] FCA 1421 .… 36.43 Passlow v Butmac Pty Ltd [2012] NSWSC 225 .… 7.55 Pastrikos v Pastrikos (1980) FLC 90-897 .… 27.31, 27.41 Pat v Yindjibarndi Aboriginal Corporation RNTBC (No 2) [2012] WASC 491 . … 6.10 Patel v Patel (1982) 1 NZFL 413 .… 11.47 Pathway Investments Pty Ltd v National Australia Bank Ltd (No 2) [2012] VSC 495 .… 9.13 Patrick Grehan v Medical Inc and Valley Pine Associates [1986] IR 528 .… 20.5 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 .… 4.16, 40.40 — v Proceeds of Sale of the Vessel MV Skulptor Konenkov (1997) 75 FCR 47; 144 ALR 394 .… 5.14 Patterson, Re (2001) 207 CLR 391 .… 24.1 Pattison (Trustee), Re; Bell v Bell [2007] FCA 137 .… 4.26 Paulin, Re [1950] VLR 462 .… 15.16, 38.46, 38.49 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 .… 3.54 Payne v R [1902] AC 552 .… 32.25 PCH Offshore Pty Ltd v Dunn (No 2) (2010) 273 ALR 167 .… 8.43, 8.47, 8.54,

17.3, 40.56 Pearce v Tower Manufacturing and Novelty Co Ltd (1898) 24 VLR 506 .… 35.16 Pearse’s Settlement, Re [1909] 1 Ch 304 .… 34.11 Pearson, Re [1892] 2 QB 263 .… 36.50, 36.54 — [1946] VLR 356 .… 30.34 Peat’s Trusts, Re (1869) LR 7 Eq 302 .… 16.12 Pedersen v Young (1964) 110 CLR 162 .… 1.18, 5.17, 13.6, 16.12 Pelegrin v Coutts and Co [1915] 1 Ch 696 .… 31.7 Pemberton v Hughes [1899] 1 Ch 781 .… 26.26, 26.27, 26.46, 40.58 Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 .… 20.74 Penglase, Ex parte (1903) 3 SR (NSW) 680 .… 42.17 Penhas v Tan Soo Eng [1953] AC 304 .… 25.8, 25.9 Peniche v Hannan [1999] FCA 915, BC9904100 .… 10.16 Penn v Lord Baltimore (1750) 1 Ves Sen 444 .… 3.1, 3.131 Pennington, Re (No 2) [1978] VR 617 .… 25.73 People’s Insurance Co of China, Hebei Branch v Vysanthi Shipping Co Ltd (The Joanna V) [2003] 2 Lloyd’s Rep 617 .… 40.94 Pepin v Bruyere [1902] 1 Ch 24 .… 38.13 Perdaman Chemicals and Fertilizers Pty Ltd v ICICI Bank Ltd [2013] FCA 175 .… 3.44, 3.82, 6.20 Pergamon Press Ltd v Maxwell [1970] 1 WLR 1167 .… 21.15, 35.42 Perkins, Re (1958) 58 SR (NSW) 1 .… 38.39 — v Williams (1900) 17 WN (NSW) 135 .… 3.113 Perlak Petroleum Mij v Deen [1924] 1 KB 111 .… 17.22 Permanent Trustee Co (Canberra) Ltd v Finlayson (1967) 9 FLR 424 .… 2.28, 18.7, 37.23, 37.27, 37.30–37.32, 37.35, 37.37, 42.24 — v Permanent Trustee Co of NSW Ltd (1969) 14 FLR 246 .… 19.37, 19.88

Permanent Trustee Co of New South Wales v Pym [1938] 38 SR (NSW) 1 .… 38.21 Perpetual Executors and Trustee Association of Australia Ltd v Roberts [1970] VR 732 .… 29.11, 34.26 Perpetual Trustee Co v Commr of Stamp Duties (NSW) [1977] 2 NSWLR 472 . … 32.37 Perrett v Robinson [1985] 1 Qd R 83 .… 3.8 — v — (1986) 169 CLR 172 .… 1.2, 1.9–1.11 Perrini v Perrini [1979] Fam 84 .… 25.28, 25.29, 25.56, 26.51 Perry v Perry [1947] VLR 470 .… 26.52 — v United States 294 US 330 (1935) .… 23.8 — v Zissis [1977] 1 Lloyd’s Rep 607 .… 3.105 Pertsch v P T John Holland Constructions Indonesia [2001] QSC 127 .… 20.35 Peter Buchanan Ltd v McVey [1954] IR 89 .… 18.14 Peters v Peters [1968] P 275 .… 26.44 Peterson Farms Inc v C&M Farming Ltd [2004] 1 Lloyd’s Rep 614 .… 39.2 Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia (2003) 126 FCR 354 .… 10.75, 10.76, 10.80 Pettkus v Becker (1980) 117 DLR (3d) 257 (Sup Ct Can) .… 21.5 PGA v R (2012) 245 CLR 355; 287 ALR 599 .… 5.16 Philip Morris Ltd v Ainley [1975] VR 345 .… 3.82 Philipson-Stow v Inland Revenue Commissioners [1961] AC 727 .… 38.25 Phillips v Batho [1913] 3 KB 25 .… 27.32 — v Eyre (1870) 6 LR QB 1 .… 1.22, 19.103, 20.2, 20.54, 20.57, 20.67, 20.71 — v Hunter (1795) 2 Hy Bl 402 .… 36.60, 36.61 Phrantzes v Argenti [1960] 2 QB 19 .… 16.44, 16.46, 19.106 Piatek v Piatek (2010) 245 FLR 137 .… 8.19, 8.21, 8.64, 14.7, 27.17, 32.24, 34.43 Pick v Discover Financial Services Inc, No Civ A 00-935-SLR (D) Del Sept 28

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3.118, 3.141, 8.2, 8.25, 8.26, 8.28, 8.29, 8.37, 8.39, 8.40, 8.42, 12.10, 12.16, 12.18, 12.21, 14.23, 15.7, 15.8, 16.16, 17.1–17.4, 18.21, 20.2, 20.4, 20.22, 20.37, 20.54, 20.55, 20.61, 20.67, 20.68, 20.76 Reid v Republic of Nauru [1993] 1 VR 251 .… 10.2 Reidy v Trustee of the Christian Brothers (1994) 12 WAR 583 .… 6.50 Reihana, In the Marriage of (1980) 6 Fam LR 134 .… 28.26 Reinsurance Australia Corporation Ltd v HIH Casualty and General Insurance Ltd (2003) 254 ALR 29 .… 7.23, 7.80, 8.35, 8.36, 8.53, 8.59, 14.5, 14.7 Relationships Australia v Pasternak (1996) 20 Fam LR 604 .… 28.18 Remilton v City Mutual Life Assurance Society Ltd (1908) 10 WALR 19 .… 3.60 Renault v Zhang (2002) 210 CLR 491 .… 9.27 Rennie’s Car Sales v Union Acceptance Corporation Ltd [1955] 4 DLR 822 .… 33.51 Rent Plus Ltd v Sorensen (No 2) [2013] NSWSC 67 .… 41.16 Republic of India v India SS Co Ltd: The Indian Grace (No 1) [1993] AC 410 . … 40.48, 40.51 — v — (No 2) [1998] AC 878 .… 5.11 Republic of Somalia v Woodhouse Drake & Carey (Suisse) SA [1993] QB 54 . … 10.6 Republica de Guatemala v Nunez [1927] 1 KB 669 .… 33.59, 33.63, 33.67, 33.69, 33.77 Res Nova Inc v Edelsten (SC(NSW), Foster J, 17049/1980, 7 May 1985, BC8601318, unreported) .… 40.71 Resarta Pty Ltd v Finemore (2002) 55 NSWLR 320 .… 6.13, 6.15 Research Systems Corp v IPSOS Publicite, 276 F 3d 914 (7th Cir 2002) .… 3.34, 11.6 Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 .… 5.4 Resort Condominiums International Inc v Bolwell (1993) 118 ALR 655 .… 43.8, 43.10

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— v Shirley (1982) 149 CLR 132 .… 5.3 Robinson-Scott v Robinson-Scott [1958] P 71 .… 13.27, 26.38 Roby v Corporation of Lloyd’s 996 F 2d 1353 (1993) .… 7.47, 7.85 Rochford v Dayes (1989) 84 ALR 405 .… 5.2 — v Habashy [2005] QCA 197 .… 33.12 Rogers v Rogers (2010) 44 Fam LR 235 .… 8.21, 8.64 Roggenkamp v Bennett (1950) 80 CLR 292 .… 20.29 Rogowski (dec’d), Re; Estate of Bresiada [2007] SASC 161 .… 37.10, 37.16 Rolfe v Transworld Marine Agency Co NV (1998) 83 FCR 323 .… 36.42 Rolland, In the Goods of (1893) 14 LR (NSW) (B&P) 102 .… 37.11, 38.12 Romeyko v Whackett (1980) 6 Fam LR 400 .… 28.15 Roper (dec’d), Re [1927] NZLR 731 .… 38.39 Rosa S, The [1989] QB 419 .… 23.8 Rose Mary, The [1953] 1 WLR 246 .… 18.23, 18.44 Rosenberg v Percival (2001) 205 CLR 434 .… 16.23, 20.31 Rosenhain & Co Ltd v Commonwealth Bank (1922) 31 CLR 46 .… 22.5, 22.9 Rosler v Hilbery [1925] Ch 250 .… 3.97 Ross, Re [1930] 1 Ch 377 .… 15.16, 15.21, 38.2 Rossano v Manufacturers Life Insurance Co [1963] 2 QB 352 .… 18.13, 19.35, 23.23, 32.17, 32.33, 33.62 Rossmick No 1 Pty Ltd v Bank of Queensland Ltd [2008] FCAFC 81 .… 6.15 Rothschild v Currie (1841) 1 QB 43 .… 22.4, 22.35 Rothwells Ltd (in liq) v Connell (1993) 119 ALR 538 .… 2.28, 16.25, 18.7, 18.12, 19.34, 19.35, 19.49, 19.56, 19.58 Rouquette v Overman (1875) LR10QB 525 .… 22.27 Rowe v Silverstein [1996] 1 VR 509 .… 42.2, 42.29, 42.33 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 298 CLR 516 .… 21.1

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30.7 S v S (Divorce Staying Proceedings) [1997] 2 FLR 100 .… 26.6, 27.28 SA Cryonic Medical, Re [2002] VSC 338 .… 41.1, 41.2, 41.9 SA General Textiles v Sun and Sand Ltd [1978] QB 279 .… 18.16, 40.15, 40.61, 41.11, 41.13, 41.20 SA Metallurgique de Prayon v Koppel (1933) 77 Sol Jo 800 .… 14.27 Sabatier v Trading Co [1927] 1 Ch 495 .… 35.25 Sadik v Owarowa (1975) TASSC, CCH Family Law and Practice 10-950.99 .… 25.21 Sadiqi v Commonwealth (No 2) (2009) 191 FCR 1 .… 10.72 Safran v Chani (1970) 72 SR (NSW) 146 .… 3.68, 3.69 Saint-Gobain Abrasives Pty Ltd v McPherson [2009] NSWCA 214 .… 2.1 Salacup, In the Marriage of (1993) 17 Fam LR 141 .… 13.19 Saliba v Falzon [1998] NSWSC 302 .… 34.3, 34.8, 34.20, 38.24 Salkeld v Salkeld (No 1) [2000] SASC 85 .… 34.30 Saltram Wine Estates Pty Ltd v Independent Stave Co (1992) 57 SASR 156 .… 3.47, 3.93 Salvesen v Administrator of Austrian Property [1927] AC 641 .… 26.49 Santos Ltd v Helix Energy Services Pty Ltd (2009) 28 VR 595 .… 3.23 — v Delhi Petroleum Pty Ltd [2002] SASC 272 .… 40.53 Sapir v Sapir (No 2) (1989) 13 Fam LR 362 .… 6.47 Sara v Sara (1962) 31 DLR (2d) 566 .… 24.33, 24.37 Sardanis v Sumitomo Corp, 718 NYS 2d 66 (NY App Div 2001) .… 3.34, 11.6 Sargent v ASL Developments Ltd (1974) 131 CLR 634 .… 7.31 Savenis v Savenis [1950] SASR 309 .… 25.11, 25.12, 25.16, 25.21 Saxby v Fulton [1909] 2 KB 208 .… 17.38, 18.41, 18.42, 19.73 Sayers v International Drilling Co NV [1971] 3 All ER 163 .… 19.37, 20.36 Scandinavian Bunkering AS v Bunkers on Board the Ship FV Taruman (2006)

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Scruples Imports Pty Ltd v Crabtree & Evelyn Pty Ltd (1983) 1 IPR 315 .… 17.21 Seaconsar Far East Ltd v Bank Markazi Jomhouri Islam Iran [1994] 1 AC 438 . … 3.41, 3.45, 3.48 Seagull Manufacturing Co Ltd, Re [1993] Ch 345 .… 36.77 Seagulls Rugby League Football Club Ltd v Superintendent of Licences (1992) 29 NSWLR 357 .… 11.22 Searle (dec’d), Estate of [1963] SASR 303 .… 30.34, 42.27 Sebba dec’d, Re [1959] Ch 166 .… 17.5 Secretary for Justice v Sigg [1993] NZFLR 340 .… 28.83 Secretary, Attorney-General’s Department (Cth) v Donald [2011] Fam CA 482 . … 13.37 — v TS (2000) 27 Fam LR 376 .… 28.56, 28.59, 28.62 Sedgwick Ltd v Bain Clarkson Ltd (1994) 56 FCR 579 .… 3.80, 20.63 Seegner v Marks (1895) 21 VLR 491 .… 40.6 Seeley International Pty Ltd v Electra Air Conditioning BV [2008] FCA 29 .… 7.75 Seereederei Baco Liner GmbH v Al Aliyu [2000] FCA 656 .… 8.39 Sehota dec’d, Re [1978] 3 All ER 385 .… 24.48 Selina, In the Marriage of (Appeal No 52 of 1991, 22 May 1991, unreported) . … 28.59 Selkrig v Davies (1814) 2 Dow 230 .… 36.61 Sellar, Re (1925) 25 SR (NSW) 540 .… 38.43 Selot’s Trusts, Re [1902] 1 Ch 488 .… 18.56 Sennar, The (No 2) [1984] 2 Lloyd’s Rep 142 .… 7.70 Sennar, The (No 2) [1984] 2 Lloyd’s Rep 142 — (No 2) [1985] 1 WLR 490 .… 40.52, 40.54 Sentry Corporation v Peat Marwick Mitchell & Co (1990) 95 ALR 11 .… 9.13 Services Europe Atlantique Sud (SEAS) of Paris v Stockholms Rederiaktiebolag

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Sherlock, Re (1991) 102 ALR 156 .… 4.14, 36.77 Sherrin v M J Sherrin Pty Ltd (SC (SA), Olsson J, 31 July 1992, unreported) .… 38.38 Shierson v Vlieland-Boddy [2005] 1 WLR 3966 .… 36.20 Ship Gem of Safaga v Euroceanica (UK) Ltd (2010) 182 FCR 27; 265 ALR 88 . … 5.9, 5.10, 32.28 Ship Hako Endeavour v Programmed Total Marine Services Pty Ltd (2013) 296 ALR 265 .… 5.11 Shipping Corporation of India Ltd v Gamlen Chemical Co A/Asia Pty Ltd (1980) 147 CLR 142 .… 36.18 — v Jaldhi Overseas Pte, 585 F 3d 58 (2d Cir 2009) .… 4.29 Shire of Yeerongpilly v Love (1906) 1 QJPR 73 .… 3.96 Shoham v Islamic Republic of Iran, — F Supp 2d — (DDC 2013) .… 3.34, 11.6 Showlag v Mansour [1995] 1 AC 431 .… 40.94 Showtime Touring Group Pty Ltd v Mosley Touring Inc [2010] NSWSC 974 .… 3.60, 3.70 — v — (2013) 296 ALR 597 .… 3.80 Siegelman v Cunard White Star Ltd (1955) 221 F 2d .… 19.10 Siemens Ltd v OriginEnergyUrangquinty Power Pty Ltd (2011) 279 ALR 759 . … 7.53 — v — (No 2) [2001] NSWSC 742 .… 23.12 — v Schenker International (Australia) Pty Ltd (2004) 216 CLR 418 .… 36.18 Sierra Leone Telecommunications Co Ltd v Barclays Bank plc [1998] 3 All ER 821 .… 19.35 Sigma Coachair Group Pty Ltd v Bock Australia Pty Ltd [2009] NSWSC 684 . … 3.73, 3.80, 8.54, 20.63 Sill v Worswick (1791) 1 Hy Bl 665 .… 33.21, 36.60, 36.61 Simmons v Simmons (1917) 17 SR (NSW) 419 .… 14.54, 15.3, 15.10, 15.21 Simonin v Mallac (1860) 2 Sw & Tr 67 .… 14.26, 25.3 Simons v Simons [1937] 1 KB 490 .… 27.32

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Smay Investments Ltd v Sachdev [2003] 1 WLR 1973 .… 35.43 SMEC Australia Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2011] VSC 213 .… 6.34 SMEC International Pty Ltd v CEMS Engineering Inc (2001) 38 ACSR 595 .… 23.14 Smeman (AJ) Car Sales v Richardsons Pre-mun Cars (1969) 63 QJPR 150 .… 33.45 Smijth v Smijth (1918) 1 SLR 156 .… 29.2, 29.10 Smith v Bayer Corp 131 S Ct 2368 .… 5.2 — v Cotton (1926) 27 SR (NSW) 41 .… 16.48, 42.22, 42.23 — v Saywell (1980) FLC 90-856 .… 27.30 Smith Kline & French Laboratories Ltd v Bloch [1983] 2 All ER 72 .… 9.31 Soares, In the Marriage of (1989) 13 Fam LR 163 .… 28.20 Société du Gaz de Paris v Armateurs Français 1926 SC(HL) 13 .… 8.6 Société Eram Shipping Co Ltd v Cie Internationale de Navigation [2004] 1 AC 260 .… 14.11, 19.94 Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] 1 AC 871 .… 9.8, 9.9, 9.30 — v United States District Court for the Southern District of Iowa, 482 US 522, 107 S Ct 2542 (1987) .… 3.27 Society of Lloyd’s v Hyslop [1993] 3 NZLR 135 .… 7.47 — v Marich (2004) 139 FCR 560 .… 41.12, 41.26 Sohio Supply Co v Gatoil (USA) Inc [1989] 1 Lloyd’s Rep 588 .… 7.65 Sokana Industries Inc v Freyre & Co Inc [1994] 1 Lloyd’s Rep 56 .… 9.25 Soleimany v Soleimany [1999] QB 785 .… 43.11 Solomon v Hatti (NSWCA, 10 February 1987, BC8701598) .… 25.73 — v Solomon (1912) 29 WN (NSW) 68 .… 13.19 Solomons v District Court (NSW) (2002) 211 CLR 119; 192 ALR 217 .… 2.1, 5.16, 5.17

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Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 .… 3.24, 3.37, 3.43–3.45, 3.48, 3.76, 3.77, 3.129, 6.29, 8.12–8.14, 8.16–8.23, 8.25–8.30, 8.33, 8.35, 8.38, 8.43, 8.44, 8.47, 8.48, 8.50–8.54, 8.59, 8.60, 9.32, 20.6, 20.8, 20.12, 20.18, 20.19, 26.6, 27.28 — v — (1991) 171 CLR 538 .… 17.2, 17.3, 21.11 VTB Capital plc v Nutritek International Corp [2013] 2 WLR 398 .… 8.9, 8.10, 8.27 W W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 .… 28.67 WA Dewhurst & Co Ltd v Cawrse [1960] VR 278 .… 3.60, 19.61 Wadley v Ron Finemore Bulk Haulage Pty Ltd [2013] VSC 5 .… 20.9 Wagner v Laubscher Bros [1970] 2 QB 313 .… 41.27 Wainwright & Son Pty Ltd v Gibson [1921] VLR 8 .… 3.70 Waite’s Settlement Trusts, Re [1958] Ch 100 .… 38.62, 38.63, 38.65, 38.71, 38.73, 38.74 Wakim, Re; Ex parte McNally (1999) 198 CLR 511 .… 1.26, 3.22, 6.2–6.4, 6.7–6.9, 28.1, 34.45, 35.2, 35.5 Wala v Wala [1966] NZLR 254 .… 11.47 Walker v Newmont Australia Ltd [2010] FCA 298 .… 4.9 — v W A Pickles Pty Ltd [1980] 2 NSWLR 281 .… 17.2, 20.70 — v Witter (1778) 1 Doug 1 .… 40.43 Wall v Toll Transport Pty Ltd [2010] VSC 522 .… 16.10 Wallaby Grip Ltd v Gilchrist [2007] NSWSC 1181 .… 6.30 Wallach, Re [1950] 1 All ER 199 .… 13.17 Waller v Freehills (2009) 177 FCR 507 .… 4.2, 4.9, 4.14, 4.15, 36.77 Walpole v Canadian Northern Railway Co [1923] AC 113 .… 20.36 Walsh, Re; Ex parte The Flying Tiger Line Inc (1985) 7 FCR 579 .… 23.20 Walt Disney Productions v H John Edwards Publishing Co Ltd (1952) 69 WN(NSW) 281 .… 11.22

— v — (1954) 71 WN (NSW) 150 .… 17.14, 17.36 Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Ltd [2005] FCA 399 .… 4.28 Wanganui-Rangitikei Electric Power Board v AMP Society (1934) 50 CLR 581 .… 12.23, 19.2, 19.3, 19.44, 19.94 Ward v Interag Pty Ltd [1985] 2 Qd R 552 .… 4.9, 11.8 Warner v Fischer (1875) 13 SCR (NSW) 46 .… 40.24 — in the matter of Rivkin [2007] FCA 2020 .… 36.43 Warren v Coombes (1979) 142 CLR 531 .… 8.30 — v Warren [1972] Qd R 386 .… 12.14, 12.23, 20.66 Washington v Commonwealth (1939) 39 SR (NSW) 133 .… 5.23 Waterhouse v Australian Broadcasting Corporation (1992) 27 NSWLR 1 .… 6.36, 6.41, 6.46, 6.47, 6.52, 6.59, 6.63 Watkins v North American Land Timber Co Ltd (1904) 20 TLR 534 .… 3.10 Watson v Employers Liability Assurance Corp (1954) 348 US 66 .… 2.22 Watson and Godfrey v Cameron (1928) 40 CLR 446 .… 5.2 Wayland as Liquidator of ABC Containerline BV, Re (2005) 52 ACSR 750 .… 35.21 WD Fairway, The [2009] 2 Lloyd’s Rep 191 .… 5.10, 15.15, 32.28 Webb, In the Estate of; Webb v Rogers (1992) 57 SASR 193 .… 34.2, 34.20, 34.24, 34.25, 34.38, 37.23 — Re (Mohr J, SC (SA), 2 August 1991, unreported) .… 15.20 — v Webb [1992] 1 All ER 17 .… 3.125, 34.11 — v Webb [1994] 1 QB 696 .… 3.131, 3.134 Weber, Ex parte [1916] 1 AC 421 .… 13.32 — v Aidone (1981) 36 ALR 345 .… 5.3 Webster Computer Systems Pty Ltd v Fujitsu Ltd [2007] FCA 825 .… 3.40, 3.107, 3.108 Webster-Tweel v Royal Trust Corporation of Canada, 2010 ABQB 139 .…

34.25 Weckstrom v Hyson [1966] VR 277 .… 3.67, 3.69 Weinstock v Sarnat [2005] NSWSC 744 .… 3.99, 9.1, 9.16, 37.20, 37.23, 37.26 Weir v Lohr (1967) 65 DLR .… 18.6, 18.15 Weissfisch v Julius [2006] 1 Lloyd’s Rep 716 .… 39.8 Welch v Tennent [1891] AC 639 .… 27.19–27.21 Welsby v Welsby [1970] 2 All ER 467 .… 26.43 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 .… 40.70 West Clothing Co Pty Ltd v Sail America Foundation for International Understanding [1988] WAR 119 .… 3.43, 4.16 West of England Steamship Owners Protection & Indemnity Assoc Ltd v John Holman & Sons [1957] 3 All ER 421 .… 35.14 West Tankers Inc v Riunione Adriatica di Sicurtà SpA (The Front Comor) [2008] 2 Lloyd’s Rep 661 .… 9.4 West’s Process Engineering Pty Ltd v Westralian Sands Ltd (SC (NSW), 6 August 1997, unreported) .… 6.32 Western Australia v Duncan [2011] NSWSC 1320 — v Vetter Trittler Pty Ltd (in liq) (1991) 30 FCR 102 .… 3.44, 3.45 Western Australia v Duncan [2011] NSWSC 1320 .… 6.30, 6.33 Western Investments Inc v Jugoimport SPDR Holding Co [1999] QB 740 .… 43.11 Westinghouse Uranium Contract, Re [1978] AC 547 .… 18.29, 18.31 Westland v Arab Organisation for Industrialisation [1994] 2 Lloyd’s Rep 608 . … 35.27 Westminster City Council v C [2008] EWCA Civ 198 .… 25.24, 25.29, 25.41 — v Islamic Republic of Iran [1986] 3 All ER 284 .… 10.26, 10.30, 10.31, 10.37 Westpac Banking Corporation v Halabi (SC (NSW), 22 December 1987, BC8700813, unreported) .… 11.40, 11.44 — v MV Stone Gemini [1999] FCA 917 (final orders after decision at (1999)

110 FCR 47) .… 23.13 — v P & O Containers Ltd (1991) 102 ALR 239 .… 3.89 — v P & O Containers Ltd (1991) 105 ALR 90 .… 3.113 — v Paterson (1999) 95 FCR 59 at 62; 167 ALR 377 .… 5.5 WesTrac Pty Ltd v Eastcoast OTR Tyres Pty Ltd (2008) 219 FLR 461 .… 7.5 White v Hardwick (1922) 23 SR (NSW) 6 .… 3.113 — v Verkouille [1990] 2 Qd R 191 .… 16.37, 27.34, 40.39, 40.40 — v White [1974] VLR 434 .… 16.48 White Cliffs Opal Mines Ltd v Miller (1904) 4 SR (NSW) 150 .… 19.63, 19.88 Whitehaven Rly Co v Forbes (1850) HL Cas 1 .… 16.20 Whitehouse v Whitehouse (1900) 21 LR (NSW) (D) 16 .… 13.25 Whitelegg, Goods of [1899] P 267 .… 17.24 Whitton, Application of [2007] NSWSC 606 .… 4.14 Whung v Whung (2011) 45 Fam LR 269 .… 8.27, 8.29, 8.45, 8.47, 8.49, 8.51, 21.12, 27.29 Whyalla Refiners Pty Ltd v Grant Thornton (a firm) (2001) 182 ALR 274 .… 6.29 Whyte v Rose (1843) 3 QB 493 .… 37.18, 37.20 Wight v Eckhardt Marine GmbH [2004] 1 AC 147 .… 14.12 Wilby, Re [1956] P 174 .… 30.34 Wilkie v Fattorini (1862) 1 SCR (NSW) Eq 32 .… 3.133 — v McCalla (No 3) [1905] VLR 278 .… 17.23 Wilkinson v Kitzinger (No 2) [2006] EWHC 2002 (Fam) .… 25.2 Wilkinson’s Settlement, Re [1917] 1 Ch 620 .… 38.67, 38.71 Wilks, Re [1935] Ch 645 .… 37.29 William Cable & Co Ltd v Teagle Smith & Sons Ltd [1928] NZLR 427 .… 3.95 Williams, Re (1904) 2 N & S 183 .… 40.13 — Re [1945] VLR 213 .… 32.4, 32.8, 32.9, 32.12, 32.13

— v Osenton 232 US 619 (1914) .… 13.5 — v Simpson [2011] 2 NZLR 380 .… 36.19 — v Society of Lloyd’s [1994] 1 VR 274 .… 3.41, 3.45, 3.66, 3.82, 3.109, 7.47, 20.61 — v United States and Australasia SS Co (1908) 25 WN (NSW) 43 .… 3.84 — v Usher (1955) 94 CLR 450 .… 17.15, 17.21 Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] AC 368 .… 18.14, 18.23, 18.26 Williams and Glyn’s Bank plc v Astro Dinamico Cia Naviera SA [1984] 1 All ER 760 (HL) .… 3.114 Williamson, Re (1912) 8 Tas LR 33 .… 17.44 Willoughby (an infant), Re (1885) 30 Ch D 324 .… 28.15, 28.86 Wilson v Ake (2005) 34F Supp 2d 1298 (MD Fla) .… 2.5 — v Nattrass (1995) 21 MVR 41 .… 16.19 — v Wilson [1903] P 157 .… 17.24 Wilson, Re [1954] 1 Ch 733 .… 30.34 Wilson, Smithett and Cope Ltd v Terruzzi [1976] QB 683 .… 23.23 Wilson Electrical Transformer Co Pty Ltd v Electricity Commission of New South Wales [1968] VR 330 .… 3.54 Wilton and Jarvis, In the Marriage of (1996) 133 FLR 355 .… 6.50, 6.51 Wimalaratna v Ellis [1985] ACLD 40 .… 37.1 Winans v Attorney-General [1904] AC 287 .… 13.19 Winchcombe v Winchcombe [1955] QWN 16 .… 42.8, 42.18 Windsurf Holdings Pty Ltd v Leonard [2009] NSWCA 6 .… 5.6, 5.16 Winkworth v Christie Manson and Woods Ltd [1980] Ch 496 .… 32.22, 32.27, 33.21, 33.43 Winter Storm Shipping Ltd v TPI 310 F 3d 263 (2d Cir 2002) .… 4.29 Winter v v Winter [1984] 1 Ch 421 .… 3.100 WJ Alan & Co Ltd v El Nasr Export & Import Co [1972] 2 QB 189 .… 23.4,

23.6 Wolfenden v Wolfenden [1946] P 61 .… 25.8 Wolff v Oxholm (1817) M & S 92 .… 18.44 Woodhouse AC Israel Cocoa Ltd v Nigerian Produce Marketing Co Ltd [1971] 2 QB 23 .… 23.6 Woolley, Re; Ex parte Applicants M276/2003 (2005) 225 CLR 1 .… 13.37 Word Publishing Co Pty Ltd, Re [1992] Qd R 336 .… 41.14 World Firefighters Games Brisbane v World Firefighting Games Western Australia Incorporated (2001) 161 FLR 355 .… 6.32 World of Technologies (Aust) Pty Ltd v Tempo (Aust) Pty Ltd [2007] FCA 114 . … 19.65 World Tanker Carriers Corp v MV Ya Mawlaya, 99 F 3d 717 (5th Cir 1996) .… 40.11 Worms v De Valdor (1880) 49 LJ (NS) 261 .… 18.55 Wragge v Sims Cooper & Co (Aust) Pty Ltd (1934) 50 CLR 483 .… 22.17, 33.12 Wright v Cantrell (1943) 44 SR (NSW) 45 .… 10.10 WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 .… 3.44, 3.45 — v — (1994) 51 FCR 115 .… 3.45 Wu, Re (1994) 121 FLR 1 .… 13.24, 13.25 Wykeham, Re (1823) T&R 537 .… 31.1 Wynn, Re [1983] 3 All ER 310 .… 38.15 Wyong Shire Council v Shirt (1980) 146 CLR 40 .… 16.31, 20.23 X X (Children) (Parental Order), Re [2008] EWHC 3030 (Fam) .… 25.58, 29.45 X v Y [2011] I L Pr 4 .… 15.4 X, In the Marriage of (1983) 8 Fam LR 793 .… 25.5, 25.23, 25.40 XAG v A Bank [1983] 2 All ER 464 .… 9.19

XPlore Technologies Corp of America v Tough Corp Pty Ltd [2008] NSWSC 1267 .… 40.32, 40.33, 40.44, 40.47, 40.74 Y Yamabuta v Tay (No 2) (1995) 16 WAR 262 .… 4.20 Yan Xie v Chen Shaoji [2008] NSWSC 224 .… 10.9, 10.30, 10.31 Yandil Holdings Pty Ltd v Insurance Co of North America (1987) 7 NSWLR 571 .… 4.21–4.23, 34.46 Yarborough v Yarborough (1933) 290 US 202 .… 2.5 Yeo v Huy (No 2) [2012] FamCA 541 .… 8.21, 8.29, 8.36, 8.47, 8.51 Yew v Attorney-General for British Columbia [1924] 1 DLR 1166 .… 24.48 Yoon v Young Dong Song [2000] NSWSC 1147 .… 11.46 Youell v Kara Mara Shipping Co Ltd [2000] 2 Lloyd’s Rep 102 .… 20.50 Young v Lalic [2006] NSWSC 18 .… 27.23, 28.1, 28.10 — v S & L Consultancy [2009] NSWSC 223 .… 43.10 Young, Re [1924] SASR 187 .… 32.39 — (dec’d), Re [1955] St R Qd 254 .… 16.37 — Re [1942] VLR 4 .… 32.12, 32.13 Youngman v Lawson [1981] 1 NSWLR 439 .… 13.12 Yperion Technology SAS v Luminex Pty Ltd [2012] FCA 554 .… 7.78 YTC Universal Ltd v Trans Europa SA [1973] 1 Lloyd’s Rep 480 .… 7.67 Yu v STX Pan Ocean Co Ltd (South Korea) [2013] FCA 680 .… 36.13 Yuen Tse v Minister of Employment and Immigration (1983) 32 RFL (2d) 274 . … 29.10, 29.11 Yukos Capital SARL v OJSC Rosneft Oil Company [2012] EWCA Civ 855 .… 10.68, 10.70, 10.81 — v — [2013] 1 All ER 223 .… 18.1 Yzerman v Schofield [2011] WASC 200 .… 3.27, 3.43, 3.45, 3.46, 3.48 Z

Z v SS (Child abduction) [2008] All ER (D) 234 .… 28.68 Zanatta v Netpro Employees Pty Ltd [2004] QSC 131 .… 16.4 Zebrarise Ltd v De Nieffe [2005] 1 Lloyd’s Rep 154 .… 22.17 Zeta-PDM Ltd v Petro Technology Australia Pty Ltd [2011] WASC 338 .… 41.20 Zhang v Regie National des Usines Renault SA [2000] NSWCA 188 .… 8.54 — v — [2008] NSWSC 1296 .… 10.4, 10.6, 10.9, 10.29, 10.30 — v — (2010) 79 NSWLR 513 .… 10.4, 10.5, 10.9 — v Shanghai Wool & Jute Textile Co Ltd (2006) 201 FLR 178 .… 7.32 Zivnostenka Banka National Corporation v Frankman [1950] AC 57 .… 20.36, 33.10 Zoubek v Zoubek [1951] VLR 368 .… 17.47 ZP v PS (1994) 181 CLR 639 .… 8.21, 28.18, 28.26, 28.35 Zucker v Tyndale Holdings Pty Ltd [1993] 1 All ER 124 .… 4.21 Zussino v Zussino (1969) 71 SR (NSW) 24 .… 12.17 Zwillinger v Schulof [1963] VR 407 .… 2.28, 13.16

Table of Statutes References are to paragraphs COMMONWEALTH Acts Interpretation Act 1901 s 2B .… 26.4 s 17(a) .… 1.20 Administrative Decisions (Judicial Review) Act 1977 s 8(1) .… 35.9 s 9 .… 35.9 Admiralty Act 1988 .… 5.8, 5.10, 10.2 Pt IV .… 5.13 s 3(1) .… 5.12 s 4(2)–(3) .… 5.8 s 4(3)(u) .… 5.15 s 5(1) .… 5.12 s 7 .… 5.8 s 8 .… 5.12 s 9 .… 5.6 s 10 .… 5.8 s 15 .… 5.8 s 15(a)–(c) .… 5.7 s 16 .… 5.8

s 17 .… 5.8, 5.9 s 18 .… 5.8 s 19 .… 5.9 s 20 .… 5.12 s 20(4) .… 5.14 s 22(1)–(2) .… 5.12 s 22(3) .… 5.12, 5.14 s 22(4)–(5) .… 5.12 s 23 .… 5.12 s 27(1)–(2) .… 5.13 s 28(1) .… 5.13 s 28(2) .… 5.13 s 29 .… 5.15 s 31(1)–(2) .… 5.14 Arbitration (Foreign Awards and Agreements) Act 1974 .… 7.3 Austraclear Regulations .… 22.3 r 7 .… 22.10 r 7.9 .… 22.10 r 8A .… 22.11 r 8B.2(c) .… 22.3 r 12.1–12.3 .… 22.10 r 23.3 .… 22.3 r 23.5 .… 22.3 Australian Citizenship Act 1948 .… 13.29, 13.30 s 10 .… 13.29 s 17 .… 13.30 Australian Citizenship Act 2007 .… 13.29, 13.30

s 4(1)(b) .… 13.29 s 13 .… 13.29, 30.32 s 15A .… 13.29 s 16(1)–(5) .… 13.29 s 17(2) .… 13.29 s 19B .… 13.29, 30.32 s 19C–D .… 30.32 s 19D(4)–(8) .… 13.29 s 19E–F .… 30.32 s 21 .… 13.29 s 26(1) .… 13.29 s 28 .… 13.29 s 32A .… 13.30 s 33 .… 13.30 s 35 .… 13.30 s 36 .… 13.30 Australian Consumer Law 2010 .… 1.19, 3.78, 3.79, 7.55, 7.93, 8.57, 8.58, 19.10, 19.47, 19.48, 20.61–20.63, 35.22, 43.12 Ch 2 .… 20.32 s 5(1) .… 3.79 s 5(3) .… 3.79 s 18 .… 8.35, 8.36, 8.57–8.60, 20.32, 20.61, 20.63, 40.77 s 67 .… 7.40, 34.33 s 67(b) .… 19.42 s 236 .… 8.58, 20.61 s 243(b) .… 8.58 Australian Crime Commission Act 2002

ss 28–29 .… 16.26 Australian Securities and Investments Commission Act 2001 .… 35.4 Banking Act 1959 .… 23.22 Banking (Foreign Exchange) Regulations 1959 .… 23.22 Bankruptcy Act 1966 .… 1.19, 4.15, 13.36, 36.25, 36.59 s 5 .… 36.56, 36.57 s 27 .… 36.47 s 28(1) .… 36.47 s 29 .… 36.4 s 29(2)(a) .… 36.38, 36.41 s 29(5)(b) .… 36.38 s 29(1) .… 36.45 s 29(2) .… 18.14, 36.38, 36.39 s 29(3) .… 36.40, 36.42 s 29(4) .… 36.43 s 33(1) .… 36.26 s 35 .… 36.47 s 40(1) .… 36.48–36.50, 36.52–36.54 s 43(1) .… 36.48, 36.50, 36.51, 36.53, 36.54 s 55 .… 36.55 s 58(1) .… 36.56 s 77(e) .… 36.58 s 81 .… 4.15 s 120 .… 36.57 s 153(1) .… 36.65 Bankruptcy Regulations 1996 reg 3.01 .… 36.38

reg 4.04 .… 23.20, 36.54 Bills of Exchange Act 1909 .… 1.19, 22.1–22.5, 22.19, 22.28 s 4 .… 22.9, 22.13 s 6(2) .… 22.2 s 8 .… 22.5 s 9(1) .… 22.16 s 26(1) .… 22.9 s 27 .… 22.7 s 51(2) .… 22.34 s 62 .… 22.28 s 77 .… 1.23, 22.1 s 77(a) .… 22.13, 22.24 s 77(a)(i) .… 22.15 s 77(a)(ii) .… 22.16 s 77(b) .… 22.17, 22.18, 22.21, 22.24, 22.25 s 77(c) .… 22.4, 22.32, 22.33, 22.36 s 77(d) .… 23.9, 23.18 s 77(e) .… 22.27, 22.30 s 77A .… 1.23, 22.1, 22.15 s 89 .… 22.5 s 95(1) .… 22.2 Carriage of Goods by Sea Act 1991 .… 12.23, 19.48, 23.18 s 11 .… 19.40, 19.42 s 11(1) .… 12.23, 19.40 s 11(2) .… 7.18, 19.40 s 11(2)(c) .… 7.40 Sch 1 .… 1.7

Sch 1A .… 1.7, 23.18 Sch 2 .… 1.7 Cheques Act 1986 .… 1.19, 22.4, 22.19 s 3(1) .… 22.9, 22.14 s 7(1) .… 22.2 s 25 .… 22.9 s 39(1) .… 22.5, 22.6 s 40 .… 22.26 s 42 .… 22.26 s 117 .… 22.2 s 117(2) .… 22.14 s 117(3) .… 22.6 s 117(4) .… 22.15 s 117(5) .… 22.15 s 117(6) .… 22.16 s 117(7) .… 22.14 s 117(8) .… 22.26 s 117(9) .… 22.8 s 117(10) .… 22.19, 22.26, 22.31 s 117(11) .… 22.30 s 117(12) .… 22.19, 22.36 s 117(13) .… 22.19, 22.36 s 117(14) .… 22.19, 22.30 Child Support (Assessment) Act 1989 .… 27.42, 27.45, 27.65, 27.68, 27.71, 27.77 s 12(1)(f) .… 27.43 s 12(2A) .… 27.43

s 12(3) .… 27.43 s 12(4) .… 27.43 s 24(1)(b) .… 27.42 s 24(2) .… 27.42, 27.44 s 25(d) .… 27.42 s 29A–B .… 27.42, 27.44 s 150DA .… 27.45 Child Support (Registration and Collection) Act 1988 .… 23.18, 27.55, 27.65, 27.68, 27.71, 27.77 s 4(1) .… 27.44 s 4(1)(b) .… 27.55 s 5AA .… 27.60 s 18A(1)–(2) .… 27.55 s 25(2A-B) .… 27.56 s 25A-B .… 27.57 s 26 .… 27.56 s 28(1)(d) .… 27.56 s 30(1) .… 27.56 s 30A .… 27.60 s 38A .… 27.56 s 38C .… 27.56 Child Support (Assessment) Regulations 1988 r 9A .… 27.45 Child Support (Registration and Collection) Regulations 1988 .… 27.54 r 3A .… 27.42 r 19 .… 23.18 Sch 2 .… 27.42, 27.55, 27.60

Christmas Island Act 1958 s 8A(1)–(2) .… 1.20 s 8E(1) .… 1.20 s 14B(1) .… 1.20 Civil Aviation (Carriers Liability) Act 1959 .… 3.101 s 1A .… 1.7 s 9 .… 23.18 Civil Aviation (Carriers Liability) Act 1961 s 12(2) .… 20.72 s 13 .… 20.72 s 35 .… 20.72 s 36 .… 20.72 Sch 2 .… 20.72 Coastal Waters (State Title) Act 1980 s 5 .… 3.120 Cocos (Keeling) Islands Act 1955 s 8A(1)–(2) .… 1.20 s 8E(1) .… 1.20 Commonwealth Constitution .… 2.24, 5.4 Covering Cl 5 .… 2.11 s 38(a)–(d) .… 5.3 s 51(xxiv) .… 3.17 s 51(xxv) .… 2.4, 2.6 s 51(xxxvii) .… 35.1 s 73(ii) .… 6.15, 6.16 s 75 .… 5.6 s 75(ii) .… 5.1

s 75(iii) .… 5.1, 5.20–5.23 s 75(iv) .… 5.1–5.3, 5.20, 5.21 s 75(v) .… 5.3 s 76 .… 5.6 s 76(iii) .… 5.1, 5.3 s 77(iii) .… 5.6 s 78 .… 5.23 s 109 .… 5.18 s 118 .… 2.3, 2.7–2.12, 2.16–2.19, 2.25–2.27, 2.29, 2.32, 3.141, 18.7, 42.1, 42.2, 42.24–42.27, 42.29, 42.30, 42.33, 42.34 s 122 .… 2.4, 2.5, 2.11, 35.1 Commonwealth of Australia Constitution Act 1900 s 80 .… 11.30 Compensation (Japanese Internment) Act 2001 .… 13.4 Competition and Consumer Act 2010 Pt IV .… 35.22 Pt XI .… 35.22 s 5(1) .… 20.62, 35.22 s 5(5) .… 20.63 s 18 .… 8.57 s 87CD(3)(b) .… 20.32 Sch 2 .… 8.57, 34.33 see also Australian Consumer Law 2010 Consular Privileges and Immunities Act 1972 .… 10.24, 10.44 s 5(2)(e) .… 10.66 s 9 .… 10.45 s 10 .… 10.57 s 12 .… 10.64

s 14(1) .… 10.26 s 15 .… 10.24 s 29(2) .… 10.24 Copyright Act 1968 .… 8.51 Corporations Act 1989 .… 6.8, 35.37 s 82 .… 35.2 Corporations Act 2001 .… 1.19, 3.15, 4.9, 4.14, 6.8, 6.10, 7.47, 7.56, 23.17, 23.22, 35.1–35.5, 35.7, 35.9, 35.11, 35.12, 35.20, 35.22, 35.23, 35.25, 35.32, 35.37, 36.25, 40.80 Ch 5 .… 36.44, 36.66 Pt 5.6, Div 1A .… 23.17 Pt 5.7 .… 35.21, 35.46, 36.66, 36.67 r 7.8.03(6) .… 23.14 s 3(1)(b) .… 35.1 s 3(2) .… 35.1 s 5(7) .… 36.77 s 9 .… 23.17, 35.4, 35.21, 35.34, 35.46, 36.66 s 21 .… 35.21 s 21(2)–(3) .… 35.23 s 21(3)(a) .… 35.41 s 42 .… 6.12 s 44 .… 6.12 s 117 .… 35.37 ss 180–184 .… 35.42 s 186 .… 35.42 s 459E .… 23.14 s 479(3) .… 36.76 s 513A .… 23.17

s 554C .… 23.17 s 581(2) .… 36.38, 36.39, 36.74 s 581(4) .… 11.43 s 582(3) .… 35.46, 36.67 s 583 .… 36.73 s 585 .… 36.73 s 596A .… 4.2, 4.14 s 596B .… 4.2, 4.14, 36.77 s 601CD .… 35.21 s 601CE .… 35.41 s 601CF .… 35.21 s 601CG .… 35.21 s 601CL(14)(a) .… 36.69 s 601CL(14)(b) .… 36.70 s 601CL(15) .… 36.75 s 601CX .… 3.15 s 601CX(1) .… 35.21 s 601CX(3) .… 35.21 s 601CX(5) .… 35.21 s 601CY .… 35.41 s 761D .… 23.8 s 764A(1)(c) .… 23.8 s 911A .… 23.8 s 911D .… 23.8 s 981B .… 23.14 s 1274 .… 11.46 s 1337B(1)–(2) .… 35.4

s 1337B(3) .… 35.9 s 1337B(5) .… 35.4 s 1337C(1)–(2) .… 35.4 s 1337E(1)–(2) .… 35.4 s 1337H .… 6.10, 35.6 s 1337H(1)–(5) .… 35.6 s 1337H(5)(d) .… 35.9 ss 1337H–1337K .… 35.5 s 1337J(1)–(3) .… 35.7 s 1337K(1)–(6) .… 35.8 s 1337K(8) .… 35.8 s 1337L .… 35.10 s 1337M .… 35.11 Corporations Rules r 11.4 .… 4.14, 36.77 Crimes Act 1914 .… 10.70 Cross-Border Insolvency Act 2008 .… 1.8, 35.3, 36.2, 36.11, 36.18, 36.36, 36.39 s 12(2) .… 36.59, 36.75 s 13 .… 36.13 s 21 .… 36.38 s 22 .… 36.38 s 43(1)(b) .… 36.61 Customs Act 1901 .… 5.16 Damage by Aircraft Act 1999 .… 20.72 Defence (Visiting Forces) Act 1963 .… 10.11 s 13 .… 10.11

Diplomatic Privileges and Immunities Act 1967 .… 10.4, 10.44 s 7(2)(d) .… 10.66 s 11 .… 10.55 s 11(a) .… 10.53 s 14 .… 10.64 Domicile Act 1982 .… 13.4, 13.16, 15.1 s 3 .… 13.29 s 3(2) .… 13.27 s 4(1) .… 13.6, 13.9, 13.27 s 4(1)(b) .… 13.29 s 5(1)–(2) .… 13.4 s 6 .… 13.18, 26.18 s 7 .… 13.11, 13.19, 13.21, 13.27 s 8(1) .… 13.17 s 8(2) .… 13.22 s 9 .… 13.19, 13.20 s 9(1) .… 13.12, 13.14, 13.16 s 9(2) .… 13.12 s 9(2)(a)–(b) .… 13.15 s 9(3) .… 13.14, 13.16 s 9(4) .… 13.16, 13.17, 13.27 s 9(5) .… 13.15 s 10 .… 13.19, 13.20, 13.25 s 11 .… 13.9 s 12 .… 13.23 s 12(1) .… 13.29 s 14 .… 13.29

Domicile (Consequential Amendments) Act 1982 .… 13.4 Domicile Regulations 1982 r 3 .… 13.4 Electronic Commerce Act 1999 .… 1.8 Electronic Transactions Act 1999 .… 3.62 s 146(5)–(6) .… 3.62 Evidence Act 1995 .… 5.17, 8.54, 11.45, 11.49, 17.10, 17.22, 17.23 Pt 4.3 .… 11.49 Pt IIIA .… 5.16 s 4(1) .… 8.54, 17.10 s 5 .… 11.45, 17.34, 17.36 s 6 .… 42.25 s 9 .… 11.45 s 13(8) .… 17.22 s 48 .… 8.54 s 49 .… 8.54 s 69 .… 5.16 s 79 .… 17.22 s 80 .… 17.30 s 126H .… 11.32 s 143(1) .… 17.34 s 148 .… 11.47 s 150 .… 11.47 s 153 .… 17.36 s 155 .… 11.49 s 157 .… 11.46 s 158 .… 11.46

s 174 .… 17.10 s 175 .… 17.10, 17.17 s 175(2) .… 17.14 s 176 .… 17.7 s 185 .… 2.8, 2.9, 2.11, 17.34, 31.11, 42.25, 42.26, 42.29, 42.33 Evidence (Transitional Provisions and Consequential Amendments) Act 1995 s 3 .… 2.8, 42.25 Evidence and Procedure (New Zealand) Act 1994 Pt 2 .… 4.8, 11.12 s 7 .… 4.8, 11.12 s 7(a)–(b) .… 4.8, 11.12 s 8(1) .… 4.8, 11.12 s 9 .… 11.12 s 25 .… 11.24 s 26 .… 11.24 s 40 .… 17.16, 17.33, 17.35 Evidence and Procedure (New Zealand) Regulations r 4 .… 11.12 Sch 1 .… 4.8, 11.12 Excise Act 1901 .… 5.16 Fair Work Act 2009 .… 8.36 Family Court Regulations 1984 Div 2 .… 11.5 reg 21AF .… 11.5 reg 21AG(1)(2) .… 11.5 Family Court Rules 2004 r 23.01A .… 28.15

Family Court Rules 2011 r 10.62 .… 3.28 r 10.64(1) .… 3.28 Family Law Act 1975 .… 1.19, 5.17, 13.8, 13.18, 24.3, 24.43, 25.70, 26.4, 26.5, 27.31, 27.42, 27.47, 27.52, 27.58, 27.66, 28.25, 28.47, 28.49, 28.82, 29.1, 29.17, 29.35, 29.43, 29.44, 30.18 Pt VII .… 27.58, 28.43, 28.45 Pt VIII .… 27.58, 28.9 Pt XII .… 26.12 Pt XIIIA .… 28.30 s 4 .… 28.30 s 4(1) .… 13.39, 26.1, 26.4, 26.23 s 4(1)(ca)(i) .… 27.24 s 4(1)(ca)(iii) .… 27.24 s 4(3) .… 13.4 s 4AA .… 27.39 s 6 .… 24.34, 24.49, 24.51 s 7 .… 26.4 s 23A(1) .… 25.67 s 31(2) .… 27.25 s 33B .… 27.23 s 34 .… 27.30 s 39(1)(a)–(b) .… 27.23 s 39(1A) .… 27.23 s 39(2) .… 27.23 s 39(3) .… 26.1 s 39(3)(a) .… 26.39 s 39(3)(b) .… 13.8

s 39(4)(a) .… 26.2, 27.23 s 39(4)(b) .… 27.41 s 39(8) .… 26.5, 27.23 s 39A .… 27.39 s 40(3) .… 27.23 s 42(2) .… 25.65, 26.8 s 43(1)(a) .… 24.2 s 44(3) .… 27.24 s 48 .… 26.9, 29.37 s 50 .… 29.36 s 51 .… 25.50, 25.63 s 53 .… 25.64, 26.7, 26.8 s 60CA .… 28.18, 28.32 s 60E .… 29.35 s 60H(1) .… 29.44 s 60H(1)(c)–(d) .… 29.44 s 60H(2) .… 29.44 s 60H(3) .… 29.44 s 60H(5) .… 29.44 s 61B .… 28.14 s 61C(1) .… 28.14, 28.58, 28.60 s 64(1)(a) .… 28.18 s 65Q .… 28.30 s 65Y .… 28.59 s 65Z .… 28.59 s 66E(1)–(2) .… 27.42 s 66G .… 27.46, 27.51

s 66P .… 29.35 s 68B(1) .… 28.19 s 69E(1) .… 27.47, 28.3, 28.4, 28.11 s 69H(2) .… 28.2 s 69K .… 27.48 s 69P .… 29.35, 29.36 s 69P(1)–(2) .… 29.35 s 69P(3) .… 29.36, 29.37 s 69Q .… 29.35 s 69R .… 29.35 s 69S .… 29.35 s 69S(1) .… 29.35 s 69T .… 29.35 s 69U(1) .… 29.35 s 69U(3) .… 29.35 s 69ZE(2) .… 28.5 s 69ZH(2) .… 28.5 s 69ZJ .… 28.9 s 69ZK .… 28.1, 28.10 s 70(C) .… 28.15 s 70G .… 28.23, 28.29–28.36, 28.58 s 70H–70J .… 28.23, 28.29–28.36 s 70J(1) .… 28.32–28.34 s 70J(2) .… 28.33 s 70K .… 28.23, 28.34 s 70L .… 28.23 s 70M .… 28.36

s 71 .… 24.52 s 72 .… 27.41 s 79 .… 27.3, 27.13, 27.23, 27.33, 27.34, 40.50 s 85 .… 27.25 s 90RC .… 27.39 s 90SB .… 27.39 s 90SD .… 27.39 s 90SK .… 27.39 s 91 .… 29.39 s 102 .… 11.47, 11.48, 17.47 s 103 .… 26.13, 27.40, 27.41, 27.52 s 104 .… 1.25, 26.14, 26.46, 26.59, 27.24 s 104(1) .… 26.25 s 104(2) .… 26.23, 26.24 s 104(3) .… 13.34, 26.14, 26.16, 26.24–26.26, 26.36, 26.40, 26.43, 26.49–26.52, 26.74 s 104(3)(a) .… 26.16 s 104(3)(b) .… 26.17 s 104(3)(b)(i) .… 26.30 s 104(3)(c) .… 26.18 s 104(3)(d) .… 13.33, 26.20 s 104(3)(e) .… 13.33, 26.24, 26.39, 26.40 s 104(3)(e)(i)–(ii) .… 26.21 s 104(3)(f) .… 26.21, 26.39, 26.40 s 104(4) .… 26.61, 26.74 s 104(4)(b) .… 26.58 s 104(5) .… 26.36, 26.40, 26.46

s 104(6) .… 25.79, 26.76 s 104(7)(a)–(b) .… 26.59 s 104(8) .… 26.29, 26.30, 26.48, 26.49 s 104(9) .… 25.29, 25.56 s 104(10) .… 26.28, 26.31, 26.53, 26.56, 26.58 s 106B .… 27.25 s 110 .… 27.35, 27.53, 27.62 s 110A–B .… 27.53 s 111 .… 27.53 s 111A .… 27.25, 27.53 s 111AA .… 27.25, 27.50 s 111AB .… 27.53 s 111B .… 28.37 s 111B(1B) .… 28.72 s 111B(4)(a) .… 28.59 s 111C .… 30.6 s 111C(3) .… 30.21 s 113 .… 26.2, 26.32 s 119 .… 20.64 Family Law Amendment Act 1987 .… 29.1 s 24 .… 28.1 s 66 .… 29.35 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 .… 27.39 Family Law Reform Act 1995 s 31 .… 29.35 Family Law Regulations 1984 .… 27.54, 27.61

Pt IIAC .… 3.26 Pt III Div 2 .… 27.61, 27.62 Pt IV .… 27.77 r 14(a)(i), Sch 1A .… 28.29 r 21(3) .… 23.18, 27.78 r 21AD .… 3.28 r 21AE(2) .… 3.32 r 21AF .… 3.31 r 21AF(1) .… 3.28 r 21AG(1)–(2) .… 3.31 r 23 .… 28.30 r 25 .… 27.62, 29.35 r 28 .… 27.63 r 28(2) .… 27.63 r 28A .… 27.63 r 28A(2)–(3) .… 27.63 r 28A(4) .… 27.65 r 28A(6) .… 27.64 r 28B .… 27.63 r 28B(2)–(3) .… 27.66 r 28B(4) .… 27.67 r 28C(1) .… 27.68 r 28D(2)–(3) .… 27.68 r 28D(5) .… 27.68 r 29(1)–(2) .… 27.71 r 29(4) .… 27.71 r 29(6) .… 27.71

r 29A(2)–(3) .… 27.72 r 29B(1) .… 27.73 r 29B(3) .… 27.73 r 29C(1)–(3) .… 27.73 r 32(1)–(2) .… 27.54 r 32(4) .… 27.54 r 36 .… 27.58, 27.59 r 36(1) .… 27.58 r 36(4) .… 27.58 r 37 .… 27.58, 27.59 r 39 .… 27.69 r 39(4) .… 27.69 r 39(5) .… 27.70 r 39B(1)–(2) .… 29.35 r 39B(4) .… 29.35 r 50(1) .… 27.76 r 50(3) .… 27.77 r 50A(3) .… 27.77 r 50A(6) .… 27.76 r 50B(2) .… 27.76 Sch 2 .… 27.53, 27.62, 29.35 Sch 4 .… 27.75, 29.35 Sch 4A .… 29.35 Family Law (Bilateral Arrangements — Intercountry Adoptions) Regulations 1998 .… 30.21 r 5 .… 30.21 r 6 .… 30.21

r 8 .… 30.21 Sch 1 .… 30.21, 30.22 Family Law (Child Abduction Convention) Regulations 1986 .… 28.17, 28.37 r 2(1) .… 28.41, 28.81 r 2(1C) .… 28.41, 28.54 r 2(2) .… 28.53 r 6(2) .… 28.43, 28.45 r 8 .… 28.43 r 11 .… 28.46 r 13(4) .… 28.50 r 14(1) .… 28.47 r 15 .… 28.48, 28.49 r 16 .… 28.64 r 16(1) .… 28.50 r 16(1A)(b) .… 28.41 r 16(1A)(c) .… 28.53 r 16(2) .… 28.51 r 16(3) .… 28.50, 28.63, 28.65, 28.76 r 16(3)(a)(ii) .… 28.61 r 16(3)(b) .… 28.69, 28.71 r 16(3)(c) .… 28.72 r 16(3)(d) .… 28.74, 28.75 r 16(5) .… 28.76 r 17 .… 28.62 r 17(2) .… 28.62 r 18(1) .… 28.64 r 18(1)(c) .… 28.40

r 19 .… 28.40 r 24(1) .… 28.82 r 25(1)(b) .… 28.84 r 29(5)(a) .… 28.57 Sch 1 .… 28.37 Sch 2 .… 28.41 Family Law (Hague Convention on Intercountry Adoption) Regulations 1988 r 15 .… 30.6 Family Law Rules 1984 .… 5.17 r 16.05 .… 11.23 Family Law Rules 2004 r 11.17 .… 27.23 r 12 .… 28.7 Federal Court of Australia Act 1976 .… 5.4 s 14(3) .… 5.10, 32.28 s 18 .… 3.13 s 28 .… 6.15 s 32W(5)(a)–(b) .… 23.18 s 47A .… 11.24 s 47A(2) .… 11.25, 11.29 s 47A(3) .… 11.29 s 47E .… 11.28 Federal Court of Australia Act 1999 s 39 .… 27.23 Federal Court Rules 1979 O 8 .… 4.14 O 8 r 1 .… 36.77

O 8 r 1(a) .… 3.53 O 8 r 1(n) .… 3.108 O 8 r 2 .… 3.107, 3.108, 36.77 O 8 r 3 .… 36.77, 41.8 O 8 r 4 .… 36.77 O 8 r 6 .… 3.113 O 9 r 7 .… 3.45 O 74 r 6(1) .… 41.8 Federal Court Rules 2011 .… 3.36, 3.40, 3.44, 3.49, 3.108, 3.113, 3.132, 4.6, 4.25 Div 7.4 .… 4.17 Div 9.4 .… 35.13 Div 10.4 .… 3.36 Div 10.6 .… 3.26, 11.5 Div 28.5 .… 3.52, 3.104 r 1.33 .… 3.49 r 7.37 .… 4.24 r 8.04 .… 4.9, 4.14 r 10.02 .… 35.20 r 10.05 .… 35.13 r 10.41 .… 3.38 r 10.42 .… 3.40, 3.51, 3.52, 4.2, 34.39 r 10.42, item 1 .… 3.53 r 10.42, item 2 .… 3.59, 3.68 r 10.42, item 3 .… 3.59 r 10.42, item 3(a) .… 3.60 r 10.42, item 4 .… 3.73

r 10.42, item 5 .… 3.73 r 10.42, item 6 .… 3.92 r 10.42, item 7 .… 3.100 r 10.42, item 8 .… 3.102 r 10.42, item 9 .… 3.104 r 10.42, item 10 .… 3.104 r 10.42, item 11 .… 3.106 r 10.42, item 12 .… 3.79, 3.101 r 10.42, item 13 .… 3.79, 3.83, 3.101 r 10.42, item 14 .… 3.83 r 10.42, item 17 .… 3.90 r 10.42, item 18(a)–(b) .… 3.84 r 10.42, item 19 .… 3.85, 3.111 r 10.42, item 20 .… 3.86 r 10.42, item 21 .… 3.91 r 10.42, item 22 .… 3.91 r 10.42, item 23 .… 3.97 r 10.42, item 24(a)–(b) .… 3.102 r 10.43 .… 8.19, 8.20 r 10.43(2) .… 3.38 r 10.43(4) .… 3.49 r 10.43(6)–(7) .… 3.38 r 10.44 .… 4.2, 4.9, 11.9 r 10.45 .… 11.9 r 10.51 .… 3.40 r 10.63(2) .… 3.32 r 10.64 .… 3.31, 11.5

r 10.65 .… 3.31, 11.5 r 13.01 .… 3.45 r 13.01(1)(b) .… 3.45 r 13.01(3) .… 3.113 Foreign Corporations (Application of Laws) Act 1989 s 7(1) .… 35.42 s 7(2) .… 35.28, 35.36 s 7(3) .… 35.36, 35.38, 35.40, 35.48 s 7(3)(a) .… 35.38 s 7(3)(e) .… 35.42, 35.45 s 7(3)(f)–(g) .… 35.45 s 7(4) .… 35.40 s 8 .… 35.29 s 9(1) .… 35.28 Foreign Evidence Act 1994 .… 11.54 s 3(1) .… 11.14, 11.16 s 7(1)(a) .… 11.14, 11.24 s 7(1)(b) .… 11.14 s 7(1)(c) .… 11.16, 11.39 s 7(2) .… 11.19 s 7(2)(a) .… 11.15 s 8(2) .… 11.23 s 8(2)(a) .… 11.22 s 9(2)(b) .… 11.21 s 15(2) .… 11.21 s 41 .… 11.54 s 42 .… 11.54

s 42(2)(a) .… 11.54 Foreign Judgments Act 1991 .… 1.23, 4.6, 7.2, 23.18, 40.1, 40.31, 40.41, 40.49, 41.1, 41.2, 41.8, 41.25, 41.32, 41.33, 42.13, 42.14 s 3 .… 18.11, 18.16 s 3(1) .… 41.11, 41.16, 41.19, 41.20 s 3(1)(a) .… 41.10 s 3(1)(b) .… 41.11 s 3(1)(c) .… 41.7 s 5(1) .… 41.4, 41.5 s 5(3) .… 41.4, 41.5 s 5(4) .… 41.11 s 5(4)(a) .… 41.10 s 5(5) .… 41.10 s 5(6) .… 41.4, 41.5, 41.11 s 5(7) .… 41.5 s 5(8) .… 41.2 s 5(9) .… 41.5 s 6 .… 41.14 s 6(1)–(2) .… 41.9 s 6(3) .… 41.14 s 6(5) .… 41.9 s 6(6) .… 41.12, 41.16 s 6(7) .… 41.26 s 6(7)(b) .… 41.26 s 6(7)(c) .… 41.15 s 6(8) .… 41.15 s 6(10) .… 41.27

s 6(11) .… 41.28 s 6(11)(a)–(b) .… 23.18 s 6(11A) .… 41.28 s 6(12) .… 41.13 s 6(15) .… 41.15 s 7 .… 41.14 s 7(2)(a) .… 41.16 s 7(2)(a)(iii) .… 41.28 s 7(2)(a)(xi) .… 40.78 s 7(2)(b) .… 41.17 s 7(3) .… 41.16, 41.18 s 7(3)(a) .… 41.20 s 7(3)(b) .… 41.21 s 7(3)(c) .… 41.22 s 7(4) .… 41.25 s 7(5) .… 41.20 s 7(5)(d)–(e) .… 41.20 s 8(1)–(4) .… 41.10 s 9(1)–(2) .… 41.16 s 10(1) .… 41.29 s 11 .… 40.14–40.17 s 12(1)–(2) .… 41.30 s 12(3) .… 41.31 s 17 .… 41.8 s 18(1) .… 41.2 s 19(a)–(b) .… 41.2 Foreign Judgments Regulation 1992 .… 41.5, 41.6

Foreign Judgments Regulations (Amendment) 1993 .… 41.6 Foreign Limitation Periods Act 1984 .… 7.86 Foreign Proceedings (Excess of Jurisdiction) Act 1984 .… 11.35, 40.95 Pt II, Div 2 .… 11.55, 18.31 s 7 .… 11.50 s 9 .… 40.95 ss 10–12 .… 40.96 s 14 .… 40.97 Foreign States Immunities Act 1985 .… 10.2, 10.3, 10.8, 10.11, 10.13, 10.14, 10.16, 10.25, 10.26, 10.30, 10.31 s 3(1) .… 10.3, 10.5, 10.7 s 3(3)(a) .… 10.3 s 3(3)(b) .… 10.4 s 3(3)(c) .… 10.5 s 6 .… 10.11, 10.44 s 7(1) .… 10.2 s 9 .… 10.2, 10.14 s 10(1) .… 10.15 s 10(2)–(3) .… 10.16 s 10(6)–(7) .… 10.15 s 10(8) .… 10.13, 10.15 s 10(9) .… 10.15 s 10(11) .… 10.17 s 11 .… 10.21 s 11(1) .… 10.18, 10.23 s 11(2) .… 10.18 s 11(3) .… 10.19, 10.21

s 12 .… 10.24 s 13 .… 10.25 s 14 .… 10.40 s 14(2) .… 10.27 s 14(3)(a) .… 10.28 s 16 .… 10.28 s 17 .… 10.16 s 18 .… 10.22 s 19 .… 10.24 s 22 .… 10.8 s 23 .… 10.30 s 24 .… 10.30, 10.31 s 25 .… 10.30 s 26 .… 10.30 s 27 .… 10.9, 10.31 s 28 .… 10.31 s 29(1) .… 10.32 s 30 .… 10.33 s 31 .… 10.35 s 32(1) .… 10.35 s 32(2) .… 10.38 s 32(3) .… 10.22, 10.36 s 32(3)(b) .… 10.37 s 33 .… 10.40 s 34 .… 10.33 s 35 .… 10.41 s 35(1) .… 10.33

s 36(1) .… 10.4 s 38 .… 10.9 s 40 .… 10.6, 10.9 s 40(1)(c) .… 10.5 s 40(1)(d) .… 10.31 s 40(5) .… 10.31 s 41 .… 10.39 High Court Rules 2004 O 9 .… 3.13 r 9.07.1 .… 3.36, 4.2, 4.9, 8.20, 34.39 ICSID Implementation Act 1990 .… 43.23 Immigration (Guardianship of Children) Act 1946 s 4AAA(2)(a)–(c) .… 30.5 s 4AAA(3) .… 30.5 s 4AAB .… 30.5 s 5 .… 30.5 s 6(1) .… 30.5 Income Tax Assessment Act 1936 .… 19.2 s 218 .… 23.15 Industrial Relations Act 1996 s 106 .… 19.45 Insurance Contracts Act 1984 .… 7.40, 7.50, 19.48 s 8(2) .… 19.42, 19.49 s 45 .… 21.13 s 52(1) .… 19.42 International Arbitration Act 1974 .… 1.25, 3.104, 5.15, 7.3, 7.18, 7.58, 41.7, 41.8, 43.1, 43.2, 43.4, 43.10, 43.16

Pt II .… 7.3, 7.5, 43.1, 43.2, 43.4, 43.7, 43.25 Pt III .… 7.3, 7.6, 43.1, 43.25 Pt IV .… 43.1, 43.23 s 3(2) .… 43.14 s 3(3) .… 43.6 s 7 .… 7.6, 15.18 s 7(1) .… 7.5 s 7(2) .… 7.5, 7.6, 7.28, 7.29, 7.53, 7.68 s 7(2)(a)–(b) .… 7.5 s 7(3) .… 7.5 s 7(4) .… 7.21 s 7(5) .… 7.5, 7.28, 7.29, 7.37 s 8 .… 15.18 s 8(2) .… 43.7, 43.10 s 8(3) .… 43.2 s 8(4) .… 43.4 s 8(5) .… 43.8, 43.10 s 8(5)(b) .… 43.8 s 8(6) .… 43.8 s 8(7) .… 43.9, 43.10 s 8(7)(a) .… 43.9 s 8(7)(b) .… 43.11 s 8(8) .… 43.8 s 9 .… 15.18 s 9(1) .… 43.7 s 9(5) .… 43.7 s 10 .… 15.18

s 10(1) .… 43.6 s 12 .… 43.2 s 16 .… 7.6, 39.5, 43.1 s 19 .… 43.9, 43.23 s 20 .… 43.2, 43.18 s 21 .… 39.13, 43.17 s 30 .… 43.17 s 34 .… 43.25 s 35 .… 43.25 Sch 1 .… 1.7, 7.3, 15.18 Art II(2) .… 7.3 Sch 2 .… 1.8, 7.3, 7.6 Art 1 .… 7.6 Art 1(2) .… 7.6 Art 1(3) .… 7.6 Art 7(2) .… 7.3 Art 34 .… 43.22 Art 35(2) .… 43.19 Art 36(1) .… 43.19 Art 36(1)(b) .… 43.20 Art 36(2) .… 43.22 Sch 3 .… 7.6, 43.1, 43.23 Art 25(1) .… 43.24 Art 42(1) .… 43.24 Art 42(3) .… 43.24 International Monetary Agreements Act 1947 s 11 .… 23.23

International Organisations (Privileges and Immunities) Act 1963 .… 10.60–10.62, 10.64 Pt II .… 10.63 s 6(1) .… 10.62 s 6(1)(a)(i) .… 10.61 s 10 .… 10.65 Sch 2 .… 10.63 Sch 3 .… 10.63 Sch 5 .… 10.63 Interpretation Act 1984 13A .… 27.35 Jervis Bay Territory Acceptance Act 1915 s 4A(1) .… 1.20 s 4D .… 1.20 s 4F .… 1.20 Judiciary Act 1903 .… 3.52, 19.81 s 3A .… 5.16 s 38(c)–(d) .… 5.21 s 39(2) .… 5.6, 5.21, 5.23, 6.53 s 39B(1A)(c) .… 5.4 s 44 .… 5.3, 5.19, 5.23 s 44(1) .… 5.3, 5.20 s 44(2) .… 5.3, 5.20, 5.21 s 44(2A) .… 5.21 s 44(3)(a) .… 5.21 s 56 .… 5.22, 5.23 s 58 .… 5.23

s 64 .… 5.22, 5.23 s 75 .… 5.22 s 78 .… 5.23 s 79 .… 2.32, 5.3, 5.6, 5.16–5.19, 5.23, 6.36, 6.59, 20.77, 28.9, 29.44 s 80 .… 2.1, 2.32, 5.16, 5.17, 5.23, 6.36, 6.59, 20.77, 29.44 s 80A .… 5.16 Jurisdiction of Courts (Cross-vesting) Act 1987 .… 6.1, 6.54, 27.23, 28.15 s 3(1) .… 6.11, 6.54 s 3(3) .… 6.11 s 4 .… 36.47 s 4(1) .… 6.55 s 4(1)(b) .… 6.52 s 4(2) .… 6.11, 6.55 s 5 .… 6.51 s 5(1) .… 3.22 s 5(2) .… 3.21, 3.22, 5.19, 6.12–6.14, 6.18, 6.30, 6.52 s 5(2)(i) .… 6.17, 6.19, 6.24, 8.52 s 5(2)(ii) .… 6.21, 6.24, 6.26, 6.28 s 5(2)(iii) .… 6.17, 6.24, 6.27–6.29, 6.32, 6.41 s 5(3) .… 3.22 s 5(4) .… 6.9, 6.23 s 5(5) .… 36.47 s 5(7) .… 6.14 s 9(2) .… 6.11 s 11 .… 6.52, 6.53, 6.56–6.58, 6.60, 6.65 s 11(1) .… 6.35 s 11(1)(a) .… 6.35, 6.36

s 11(1)(b) .… 6.35, 6.39, 6.40, 6.43 s 11(1)(c) .… 6.35, 6.49, 12.15, 16.6 s 11(2)–(3) .… 6.37 s 13 .… 6.15 s 13(a) .… 6.15 s 13(b) .… 6.50 s 16(4)–(5) .… 6.6, 6.7 Jurisdiction of Courts Legislation Amendment Act 2000 Sch1 para 61 .… 6.9, 6.23 Lands Acquisition Act 1906 .… 3.122 Marriage Act 1961 .… 1.19, 13.8, 13.18, 24.4, 24.15, 24.21, 24.41–24.43, 25.10, 25.47, 25.78, 29.5, 29.21, 30.18 Pt IV Div 3 .… 25.76 Pt V .… 1.25, 25.58, 25.77, 25.79, 25.81, 26.76, 29.20 Pt VA .… 15.30, 24.13, 24.41, 24.49, 25.1, 25.42, 25.43, 25.48, 25.51, 25.54, 25.59, 25.71, 25.76, 25.77, 25.81, 25.82 Pt VII .… 24.25 s 5 .… 24.2 s 5(4) .… 13.4 s 8(1) .… 24.25 s 10 .… 25.58 s 10(2)(b) .… 13.8 s 11 .… 25.39, 25.58 s 12 .… 25.58 s 22 .… 25.80 s 23 .… 29.6 s 23A .… 25.39 s 23A(1) .… 25.53, 25.59

s 23A(1)(a) .… 25.74 s 23A(1)(b) .… 25.77 s 23B(1)(a) .… 24.46, 25.53 s 23B(1)(d) .… 25.63, 25.67 s 23B(1)(d)(ii) .… 25.68 s 55 .… 25.39, 25.76 s 71(1) .… 25.77 s 72 .… 25.78 s 73 .… 25.79 s 78 .… 25.77 s 81 .… 25.77 s 83 .… 25.78 s 88 .… 25.80 s 88A .… 25.42 s 88B(1) .… 25.42, 25.44 s 88B(2) .… 25.82 s 88B(4) .… 24.41 s 88C .… 25.42 s 88C(1) .… 24.42, 25.40, 25.44, 25.47 s 88C(1)(b) .… 24.42, 25.82 s 88C(2)(a) .… 24.42, 25.45 s 88D .… 25.1 s 88D(1) .… 25.44, 25.60, 25.70, 25.82 s 88D(2) .… 25.49, 25.50, 25.59, 25.71, 25.82 s 88D(2)(a) .… 25.47, 25.54 s 88D(2)(b) .… 25.47, 25.59 s 88D(2)(c) .… 25.47

s 88D(2)(d) .… 25.47, 25.63, 25.67 s 88D(3) .… 25.48, 25.82 s 88D(4) .… 25.70, 25.82 s 88D(5) .… 25.46 s 88E .… 25.1, 25.63 s 88E(1) .… 25.1, 25.51, 25.54, 25.60, 25.67, 25.70, 25.71 s 88E(2) .… 25.51, 25.59 s 88E(3)–(4) .… 24.49 s 88EA .… 24.11, 24.49 s 88F .… 15.30, 24.13, 25.43, 38.4 s 88G .… 11.48, 25.72 s 88G(1) .… 17.47 s 88G(2)–(3) .… 11.48 s 89 .… 29.18, 29.20 s 89(2) .… 29.19 s 89(3) .… 29.20 s 89(3)(a) .… 13.8 s 89(4) .… 29.19 s 90 .… 29.21, 29.29 s 90(1) .… 29.25 s 90(2) .… 29.27 s 90(3) .… 29.28 s 91 .… 29.4, 29.5, 29.39 s 91(2) .… 13.8, 29.5 s 91(3)–(4) .… 29.5 s 92(1) .… 29.30 s 94(1) .… 24.46

s 111(2) .… 29.5, 29.20 s 111A .… 14.22 s 120(f) .… 25.81 Marriage (Overseas) Act 1955 .… 29.20 s 32 .… 25.80 Marriage Amendment Act 1976 .… 14.22 Marriage Amendment Act 1985 .… 24.41, 25.42 s 25 .… 29.25 s 25(2) .… 29.26 Marriage Amendment Act 2002 .… 25.77 Marriage Amendment Act 2004 .… 30.18 Matrimonial Causes Act 1959 s 24(3) .… 25.64 s 67(1) .… 25.64, 26.7, 26.8 s 95(2) .… 26.26 s 95(3) .… 26.39 Migration Act 1958 s 12 .… 25.1 s 15(1) .… 13.19 s 476(1)(e) .… 17.9 Migration Litigation Reform Act 2005 .… 5.3 Navigation Act 1912 .… 5.6 s 425(1AA) .… 5.6 Navigation Act 2012 s 326 .… 20.37 New Tax System (Goods and Services) Tax Act 1999 .… 35.22 Norfolk Island Act 1979

s 18 .… 1.20 Occupational Health and Safety (Maritime Industry) Act 1993 .… 5.6 Patents Act 1990 .… 32.38 Personal Property Securities Act 2009 .… 33.4, 33.8, 33.33, 33.34, 33.45, 33.47, 33.48, 33.71 Ch 7 .… 33.4 Pt 7.2 .… 14.3 s 10 .… 33.36 s 55(2)–(5) .… 33.71 s 77(3) .… 33.71 s 234(1)–(2) .… 33.13 s 235(3) .… 33.29 s 235(5) .… 33.29 s 238 .… 33.55 s 238(1) .… 33.29, 33.33 s 238(1A) .… 16.43 s 238(2)–(3) .… 33.29 s 239 .… 33.55 s 239(1) .… 33.65 s 240 .… 33.55 s 240(1) .… 33.36, 33.40 s 240(4)–(5) .… 33.71 s 241 .… 33.34, 33.55 Proceeds of Crime Act 1987 .… 42.10, 42.11 Proceeds of Crime Act 2002 .… 42.10, 42.11 Records Recognition Act 1901 .… 42.26 Sea-Carriage of Goods Act 1924

s 9(1) .… 12.23 Service and Execution of Process Act 1901 .… 42.7, 42.18 Pt IV .… 23.11, 42.8, 42.22 s 20(2) .… 42.17 Service and Execution of Process Act 1992 .… 1.26, 3.14, 3.16, 3.17, 6.11, 6.27, 6.62, 42.4, 42.26 Pt 2 .… 3.15, 3.18, 6.53 Pt 5 .… 42.6 Pt 6 .… 41.3, 41.15, 42.2–42.7, 42.9, 42.11, 42.13–42.15, 42.18, 42.22 Pt 7 .… 42.6 s 3(1) .… 3.15, 3.17, 42.2, 42.7, 42.8, 42.10–42.13, 42.18 s 3(1)(e) .… 42.13 s 3(1)(g) .… 42.11 s 3(1)(h) .… 42.2 s 3(1)(j)–(k) .… 42.2 s 5(1) .… 42.5 s 7(2) .… 42.5 s 8(4) .… 3.14 s 9 .… 3.15 s 10(1) .… 3.15 s 11 .… 3.15 s 12 .… 3.16 s 13 .… 3.15 s 14(1) .… 3.19 s 15(1) .… 1.10, 3.15, 12.15, 28.16, 34.39, 37.26 s 15(2) .… 3.15 s 16 .… 3.15

s 17(1)–(2) .… 3.19 s 18 .… 3.20 s 19(1) .… 3.20 s 20 .… 3.18, 3.21, 3.24, 6.27 s 20(1) .… 6.27, 8.52 s 20(2)–(3) .… 3.23 s 20(4) .… 3.24 s 20(5)–(7) .… 3.25 s 21 .… 3.23 s 27 .… 4.2 s 29 .… 4.7 s 30 .… 4.7 s 31 .… 4.7 s 32(1) .… 4.7 s 33 .… 4.7 s 34 .… 4.7 s 48 .… 42.12 s 104 .… 42.15 s 105 .… 27.38 s 105(1) .… 42.15, 42.17 s 105(2) .… 42.17, 42.21 s 105(3)–(4) .… 42.15 s 105(5) .… 42.16, 42.18 s 105(6) .… 42.16 s 106(1)–(3) .… 42.19 s 109 .… 42.18 s 130 .… 3.16

Shipping Registration Act 1981 s 11(1)(a) .… 5.10 s 11(1)(c) .… 5.10 Stamp Duties Act 1920 s 29 .… 5.17 State and Territorial Laws and Records Recognition Act 1901 s 3 .… 2.10 s 6 .… 2.10 s 15 .… 2.10 s 18 .… 2.8, 2.10, 2.14, 42.25, 42.26, 42.29, 42.33 Status of Children Act 1996 .… 13.12, 13.13, 29.13 s 5 .… 13.12 s 14(1)–(3) .… 13.12 Statute Law Revision Act 2008 .… 22.3 Supreme Court Rules .… 8.25 Taxation Administration Act 1953 Sch 1, Div 263 .… 41.11 Territories (Law Reform) Act 1992 .… 1.20 Trade Practices Act 1974 .… 3.50, 3.79, 7.5, 7.40, 7.47, 7.55, 7.56, 7.73, 7.93, 8.35, 8.57, 8.59, 14.5, 19.13, 19.47, 19.48, 35.22, 35.41 see also Competition and Consumer Act 2010 s 52 .… 3.78, 3.82, 7.70, 8.35, 8.36, 8.57, 8.59, 8.60, 14.7, 20.7, 20.61, 40.77, 43.12 s 67 .… 7.40, 19.42, 19.48 s 68 .… 7.40 s 82 .… 3.82, 11.39 s 87 .… 19.47 Trans-Tasman Proceedings Act 2010 .… 41.6

Pt 7 .… 41.32 s 17 .… 8.24 s 19(2) .… 8.24 s 20(1) .… 8.24 Trusts (Hague Convention) Act 1991 .… 1.25, 34.2, 37.28 s 4 .… 34.2 s 6 .… 34.2 s 7(1)–(2) .… 34.2 Volunteers Protection Act 2003 .… 20.27 AUSTRALIAN CAPITAL TERRITORY Administration and Probate Act 1929 s 9(1) .… 37.1 s 9(2) .… 37.2 s 80 .… 37.16 s 8C .… 37.30 Adoption Act 1993 .… 30.1 Pt 4A .… 30.7 s 5 .… 30.10 s 8 .… 30.2 s 8(1) .… 30.9 s 9(b) .… 30.2 s 12 .… 30.8 s 13(1) .… 30.2 s 14(b) .… 30.20 s 37 .… 30.5 s 39H .… 30.7 s 46(1) .… 30.32

s 53 .… 30.12 s 54(1) .… 30.31, 30.38 s 57B .… 30.7 s 57D–F .… 30.15 s 57J .… 30.7, 30.21 s 57K .… 30.21 s 57L(1) .… 30.25, 30.32 s 57L(2)(a) .… 30.24, 30.32 s 57L(2)(b)–(c) .… 30.26 s 57L(3) .… 30.29 s 57L(5) .… 30.28 s 57M(1) .… 30.37 s 116 .… 30.28 Age of Majority Act 1974 .… 13.17 Birth (Equality of Status) Act 1988 .… 29.1 Civil Law (Wrongs) Act 2002 Ch 7A .… 16.32, 20.32, 20.49 Pt 2.4 .… 20.56 s 5 .… 20.27 ss 6–11 .… 20.27 s 16 .… 20.59 s 24 .… 20.54 ss 32–36 .… 20.26 s 43(1)(b) .… 16.31, 20.23 s 45(1) .… 20.24 s 45(3) .… 20.24 s 95(1)–(2) .… 16.30, 20.30

s 102(2) .… 20.28 s 107F(1)(a) .… 16.32, 20.32 s 107F(2)(b) .… 20.32 s 110 .… 20.26 s 112 .… 20.26 s 113 .… 20.27 s 123 .… 20.16 ss 206–209 .… 20.51 s 218 .… 20.64 s 220 .… 8.25 Civil Unions Act 2012 .… 38.39 Commercial Arbitration Act 1986 s 22(1) .… 39.6 Commercial Arbitration Act 1989 s 38(2) .… 17.9 Court Procedure Rules 2006 .… 3.132, 4.25 Div 2.4.10 .… 35.13 Div 6.8.9 .… 3.36 Div 6.8.12 .… 3.26 Subdiv 2.9.4.2 .… 4.17 r 744 .… 4.24 r 2601(g)(i) .… 3.60 r 3497 .… 41.8 r 6501(g) .… 3.59 r 6501(h) .… 3.68 r 6501(h)(i) .… 3.59 r 6501(1) .… 3.37

r 6501(1)(a) .… 3.53, 3.80 r 6501(1)(b)(i)–(ii) .… 3.91 r 6501(1)(c) .… 3.92 r 6501(1)(d)(i)–(iv) .… 3.84 r 6501(1)(e)(i)–(ii) .… 3.98 r 6501(1)(f) .… 3.100, 34.39 r 6501(1)(j) .… 3.103 r 6501(1)(k–l) .… 3.73 r 6501(1)(m)(i)–(iv) .… 3.102 r 6501(1)(n) .… 3.90 r 6501(1)(o) .… 3.97 r 6501(1)(p) .… 3.86 r 6501(1)(q) .… 3.101 r 6501(1)(r) .… 3.85, 3.111 r 6501(1)(s) .… 3.91 r 6501(1)(t)(i) .… 3.81 r 6501(1)(v) .… 3.104 r 6501(1)(w) .… 3.105 r 6501(1)(x) .… 3.106 r 6501(1)(y) .… 3.107 r 6503(3)(c) .… 3.37 r 6504 .… 4.2, 4.9, 11.8, 11.37 r 6506 .… 11.8, 11.37 r 6508 .… 3.37 r 6508(1) .… 3.41 r 6510 .… 11.5 r 6510(1) .… 3.28, 3.31, 11.5

r 6510(2) .… 3.31, 11.5 r 6511 .… 3.28 r 6554(1)(b) .… 3.31, 11.5 r 6813(1)(a)–(b) .… 11.14 r 6813(1)(c) .… 11.16, 11.39 r 6813(3) .… 11.19 r 6813(5) .… 11.23 r 6813(5)(a) .… 11.22 r 6830(2)–(3) .… 11.21 r 6843 .… 11.50 r 6843(3) .… 11.50 r 6843(3)(b) .… 11.52 r 6843(6)(a) .… 11.52 r 6850 .… 11.51 Domestic Relationships Act 1994 Pt 3 .… 27.35 s 11(1) .… 27.36 s 11(2) .… 27.37 Electronic Transactions Act 2001 .… 3.62 Evidence Act 2011 .… 11.49 s 48 .… 8.54 s 49 .… 8.54 s 126K .… 11.32 s 150 .… 11.47 Evidence (Miscellaneous Provisions) Act 1991 Div 3.2 .… 11.24 Div 3.3 .… 11.24

Div 3.4 .… 11.24 s 20 .… 11.53 s 32 .… 11.24 Fair Trading ( Australian Consumer Law) Act 1992 .… 3.78 s 7 .… 20.61 Family Provision Act 1969 .… 38.42 s 8(1) .… 38.42 Foreign Judgments Act 1954 .… 41.2 Guardianship and Management of Property Act 1991 .… 31.3 s 12 .… 31.11 Jurisdiction of Courts (Cross-vesting) Act 1993 .… 6.1, 6.7, 6.35, 6.54, 28.15 s 3(1) .… 6.11, 6.54 s 4 .… 6.54 s 4(3) .… 6.11 s 5 .… 6.51 s 5(1) .… 3.22 s 5(2) .… 3.21, 3.22, 5.19, 6.12–6.14, 6.18, 6.30, 6.35, 6.41, 6.52, 6.53 s 5(2)(i) .… 6.17, 6.19, 6.24, 8.52 s 5(2)(ii) .… 6.21, 6.24, 6.26, 6.28 s 5(2)(iii) .… 6.17, 6.24, 6.27–6.29, 6.32 s 5(3) .… 3.22 s 5(4) .… 6.23 s 5(7) .… 6.14 s 8(1)(b) .… 6.13 s 9 .… 6.11 s 9(b) .… 6.14 s 11 .… 6.52, 6.56–6.58, 6.60, 6.65

s 11(1) .… 6.35 s 11(1)(a) .… 6.35, 6.36 s 11(1)(b) .… 6.35, 6.39, 6.40, 6.43 s 11(1)(c) .… 6.35, 6.49 s 13 .… 6.15, 6.16 s 13(a) .… 6.15 s 13(b) .… 6.50 s 16(4)–(5) .… 6.6, 6.7 Law Reform (Miscellaneous Provisions) Act 1955 s 34 .… 3.127 s 34(1)–(2) .… 3.128 s 35 .… 3.129 Law Reform (Miscellaneous Provisions) Act 1985 .… 3.1 Law Reform (Miscellaneous Provisions) Ordinance 1955 s 15 .… 2.13, 2.14 Legislation Act 2001 s 97(1) .… 3.83 Limitation Act 1985 ss 55–57 .… 16.8, 20.59 Mental Health (Treatment and Care) Act 1994 .… 31.3 s 48D .… 31.11 Parentage Act 2004 .… 29.1, 29.13, 29.14, 29.16, 29.33, 29.42 s 7 .… 29.33, 29.42 s 8 .… 29.33, 29.42 s 9 .… 29.34 s 10 .… 29.34 s 11 .… 29.40–29.42

s 11(2)–(3) .… 13.12, 29.41 s 11(4) .… 13.12, 29.40–29.42 s 11(5) .… 13.12, 29.40, 29.41 s 11(6) .… 29.40–29.42 s 11(7)–(8) .… 29.43 s 24(a) .… 29.45 s 24(e) .… 29.45 s 25 .… 29.45 s 38 .… 13.12, 29.15 s 39 .… 29.15 s 39(5) .… 29.14 s 42 .… 29.45 s 45 .… 29.45 Road Transport (General) Act 1999 ss 178–180 .… 20.53 Sale of Goods (Vienna Convention) Act 1987 .… 3.60, 19.109 Testamentary Guardianship Act 1984 s 5 .… 28.88 Wills Act 1968 Pt 2A .… 38.14 s 11 .… 38.69 s 11A .… 38.12 s 15A .… 38.15, 38.17 s 15B .… 38.18 s 15C .… 38.15, 38.36 s 15D(1)(a)–(b) .… 38.16 s 15D(1)(c) .… 38.36

s 15D(2) .… 38.68, 38.69 s 15E(1) .… 38.19 s 15F .… 38.20 s 15G .… 38.23, 38.29, 38.38 s 20 .… 38.39 s 20A .… 38.40 s 26 .… 38.71 NEW SOUTH WALES Absent Debtors Act 1840 .… 4.29 Adoption Act 2000 .… 30.1 s 7(a) .… 30.10 s 8(1)(a) .… 30.10 s 23(1) .… 30.20 s 23(2) .… 30.2 s 23(4) .… 30.2, 30.9 s 26 .… 30.20 s 31 .… 30.7 s 31(2) .… 30.7 s 77 .… 30.5 s 90(1)(g) .… 30.7 s 102 .… 30.12 s 107 .… 30.6 s 108 .… 30.15 s 108(1)(b) .… 30.16 s 109 .… 30.15 s 113 .… 30.21 s 116(1) .… 30.32, 30.37

s 116(1)(b) .… 30.25 s 116(2) .… 30.32 s 116(2)(a) .… 30.24 s 116(2)(b)–(c) .… 30.26 s 116(3) .… 30.29 s 116(5) .… 30.28 s 117(1) .… 30.37, 30.38 s 126 .… 30.28 Business Names Act 2002 s 38 .… 35.13 Children (Equality of Status) Act 1976 .… 29.1 Choice of Law (Limitation Periods) Act 1993 .… 16.8, 20.59 Civil Liability Act 2002 Pt 4 .… 16.32, 20.32 s 5B(1)(b) .… 16.31, 20.23 s 5D(1) .… 20.24 s 5D(3)(a)–(b) .… 16.23, 20.31 s 5D(4) .… 20.24 s 5F .… 5.6, 20.29 s 5F(1) .… 20.29 s 5G .… 20.29 s 5H .… 5.6 s 5Q(1) .… 16.33, 20.33 s 5R(1) .… 20.25 ss 27–33 .… 20.26 s 34 .… 20.49 s 35 .… 20.49

s 35(1)(a) .… 16.32, 20.32 s 35(3)(b) .… 20.32 ss 36–39 .… 20.49 s 42 .… 20.26 s 44 .… 20.26 s 45 .… 20.27 s 50(1) .… 16.30, 20.30 s 50(3) .… 20.30 ss 55–58 .… 20.27 s 58A–C .… 20.27 ss 59–66 .… 20.27 Civil Procedure Act 2005 s 6(1) .… 41.2 s 100 .… 23.13 s 101(2) .… 23.13 Sch 4 .… 41.2 Commercial Arbitration Act 1984 .… 39.9 s 22(1) .… 39.6 s 38(2) .… 17.9 Commonwealth Powers (Family Law-Children) Act 1986 .… 28.1 Compensation to Relatives Act 1897 .… 6.43, 12.8, 12.13 s 3(1) .… 12.13, 20.54 Contracts Review Act 1980 .… 6.43, 7.46, 19.47 s 7(1) .… 19.10, 19.43 s 17(3) .… 19.43 Conveyancing Act 1919 s 36 .… 34.21

Corporations (Commonwealth Powers) Act 2001 .… 35.1 Corporations (New South Wales) Act 1990 s 42 .… 6.12, 35.2 s 44 .… 6.12 Credit Act 1984 s 3(1)(a) .… 19.46 Defamation Act 1974 .… 6.45 Defamation Act 2005 s 11 .… 20.16 Domicile Act 1979 .… 13.4, 13.9, 13.11, 13.12, 13.15, 13.16, 13.27 s 5 .… 13.18 s 6 .… 13.11, 13.21 s 7(2) .… 13.22 s 8(1) .… 13.12, 13.14 s 8(2) .… 13.12 s 9 .… 13.25 s 10 .… 13.9 s 11 .… 13.23 Dust Diseases Tribunal Act 1989 s 25(3) .… 6.30 s 32 .… 8.41 Electronic Transactions Act 2000 .… 3.62 Evidence Act 1898 .… 17.14 Evidence Act 1995 .… 11.49, 17.10, 17.14 s 48 .… 8.54 s 49 .… 8.54 s 148 .… 11.47

s 174 .… 17.10 s 174(2) .… 17.14 s 175 .… 17.10 s 175(2) .… 17.14 s 176 .… 17.7 Evidence (Audio and Audio Visual Links) Act 1998 s 5B .… 11.24 s 5C .… 11.30 s 5C(2) .… 11.32 s 5D(1) .… 11.28 s 5D(2)–(3) .… 11.29 ss 12–20 .… 11.53 Evidence on Commission Act 1995 s 6(1)(a)–(b) .… 11.14 s 6(1)(c) .… 11.16, 11.39 s 6(2) .… 11.19 s 7(2) .… 11.23 s 7(2)(a) .… 11.22 s 8(2)(b) .… 11.21 s 32 .… 11.50, 18.21 s 32(6)(a) .… 11.52 s 33(3) .… 11.50 s 33(3)(b) .… 11.52 s 34 .… 11.51 Fair Trading Act 1987 .… 3.78 s 28 .… 20.61 Family Provision Act 1982 .… 9.16, 38.45

s 11(1)(b) .… 38.44, 38.46 Federal Courts (Consequential Amendments) Act 2000 s 3 .… 6.7 Federal Courts (State Jurisdiction) Act 1999 s 6 .… 6.2, 34.45 Foreign Judgments Act 1973 .… 41.2 Guardianship Act 1987 s 48B .… 31.11 Guardianship Regulation 2010 r 16 .… 31.11 Hire Purchase Agreements Act 1941 s 26C .… 12.23 s 31 .… 12.23 Insurance Act 1902 s 19 .… 7.38, 7.39 Interest Reduction Act 1931 .… 12.23 Interpretation Act 1987 .… 38.44 Jurisdiction of Courts (Cross-vesting) Act 1987 .… 6.1, 6.7, 6.35, 6.54, 28.15 s 3(1) .… 6.11, 6.54 s 4 .… 6.54 s 4(2) .… 34.45 s 4(3) .… 6.11 s 5 .… 6.51 s 5(1) .… 3.22 s 5(2) .… 3.21, 3.22, 5.19, 6.12–6.14, 6.17, 6.18, 6.30, 6.41, 6.52, 38.47 s 5(2)(i) .… 6.19, 6.24, 8.52 s 5(2)(ii) .… 6.21, 6.24, 6.26, 6.28

s 5(2)(iii) .… 6.24, 6.27–6.29, 6.32 s 5(3) .… 3.22 s 5(4) .… 6.23 s 5(7) .… 6.14 s 8(1)(b) .… 6.13 s 9 .… 6.11 s 9(b) .… 6.14 s 11 .… 6.52, 6.53, 6.56–6.58, 6.60, 6.65 s 11(1) .… 6.35 s 11(1)(a) .… 6.35, 6.36 s 11(1)(b) .… 6.35, 6.39, 6.40, 6.43 s 11(1)(c) .… 6.35, 6.49 s 13 .… 6.15, 6.16 s 13(a) .… 6.15 s 13(b) .… 6.50 s 16(4)–(5) .… 6.6, 6.7 Jurisdiction of Courts (Foreign Land) Act 1989 .… 3.1, 3.127, 38.44 s 3 .… 3.127, 8.25 s 4 .… 3.129, 8.25 s 5 .… 3.129 Law Reform (Marital Consortium) Act 1984 s 3 .… 20.64 Law Reform (Miscellaneous Provisions) Act 1944 Pt 2 .… 20.56 s 2(2) .… 20.60 Law Reform (Miscellaneous Provisions) Act 1946 .… 7.55 s 6(1) .… 20.51

s 6(4) .… 20.51 Law Reform (Miscellaneous Provisions) Act 1965 s 8 .… 20.28 Married Women’s Property Act 1901 .… 24.48, 42.22 Mental Health Act 2007 .… 31.3 Minors (Property and Contracts) Act 1970 s 15 .… 13.17 Moratorium Act 1930 .… 2.27 Motor Accidents Act 1988 .… 2.30, 2.33, 6.43, 21.8 s 79 .… 12.15 Motor Accidents Compensation Act 1999 ss 32–34 .… 20.53 Probate and Administration Act 1898 s 40 .… 37.1 s 107 .… 37.16 Property (Relationships) Act 1984 .… 24.9 Pt 3 .… 27.35 s 15 .… 27.36 s 16 .… 27.37 Protected Estates Act 1983 .… 42.31 s 13 .… 6.48 s 14 .… 31.11 Real Property Act 1900 .… 33.64 Restraints of Trade Act 1976 .… 19.3 Sale of Goods (Vienna Convention) Act 1986 .… 3.60, 19.109 Status of Children Act 1996 .… 29.1, 29.13, 29.14 s 4(a)–(b) .… 29.43

s 4(1) .… 29.16 s 5(1) .… 29.15, 29.16 s 6 .… 29.15 s 7(1) .… 29.14 s 8 .… 29.14 s 9 .… 29.33 s 10 .… 29.33 ss 11–13 .… 29.34 s 14(a)–(b) .… 29.42 s 14(1)(a) .… 29.40, 29.41 s 14(1)(b) .… 29.41 s 14(1A)(a) .… 29.42 s 14(2) .… 29.40, 29.41 s 14(3) .… 29.41 s 14(4) .… 29.40–29.42 s 14(5) .… 29.40 s 14(5A) .… 29.42 s 14(6) .… 29.40, 29.41 s 15 .… 29.40, 29.41 Succession Act 2006 Ch 6 .… 38.42 Pt 2.4 .… 38.14 Pt 3 .… 38.45 s 6(5) .… 38.69 s 8 .… 38.12 s 12 .… 38.39 s 13 .… 38.40

s 33 .… 38.23, 38.29, 38.38 s 36 .… 38.71 s 37 .… 38.71 s 47 .… 38.17 s 48(1) .… 38.15, 38.36 s 48(2)(a)–(b) .… 38.16 s 48(2)(c) .… 38.36 s 48(3) .… 38.68, 38.69 s 49 .… 38.18 s 50(1) .… 38.19 s 50(2) .… 38.20 s 59 .… 38.42 s 64 .… 2.1, 38.44, 38.45 s 65 .… 38.46 Supreme Court Rules 2006 Pt 10 r 3 .… 4.10 Pt 10 r 5 .… 17.42 Surrogacy Act 2010 s 8 .… 29.45 s 11 .… 29.45 s 12 .… 29.45 s 32 .… 29.45 Testator’s Family Maintenance and Guardianship of Infants Act 1916 .… 29.14 Trustee and Guardian Act 2009 .… 31.3, 31.11 s 42 .… 31.11 s 81 .… 31.12 s 81(2)–(5) .… 31.12

Uniform Civil Procedure Rules 2005 .… 3.132, 4.25, 8.40 Div 1 .… 3.36 Pt 6 Div 9 .… 17.4 Pt 11 .… 3.36 Pt 11A .… 3.26, 11.5 Pt 11A.4 .… 11.5 Pt 11A.4(1) .… 3.28 Pt 11A.5 .… 11.5 Pt 10 r 1(1)(e) .… 8.13 r 6.1(2)(a) .… 3.113 r 6.44(1)–(2) .… 8.40 r 10.9 .… 35.13 r 10.10 .… 35.13 r 10.11 .… 35.13 r 11.2 .… 3.27, 3.37 r 11.4 .… 3.37, 3.41 r 11.5 .… 4.2, 4.9, 4.10, 11.8, 11.37, 41.8 r 11.7(2)(b) .… 3.37 r 11A.2 .… 3.28 r 11A.3(2) .… 3.32 r 11A.4 .… 3.31 r 11A.5 .… 3.31 r 25 .… 40.42 r 25.14 .… 4.17 r 25.16 .… 4.24 r 31.6(3) .… 11.21 r 53.6 .… 41.8

r 107 .… 35.20 Sch 1 .… 3.36 Sch 6 .… 3.41 Sch 6 para (a) .… 3.53, 3.80 Sch 6 para (b) .… 3.59 Sch 6 para (c) .… 3.55, 3.59 Sch 6 para (c)(i) .… 3.60 Sch 6 para (c)(iv) .… 3.68 Sch 6 para (d) .… 3.73 Sch 6 para (e) .… 3.73, 8.13 Sch 6 para (f) .… 3.90 Sch 6 para (g) .… 3.84 Sch 6 para (h) .… 3.59, 3.85, 3.111 Sch 6 para (i) .… 3.86 Sch 6 para (j)–(k) .… 3.91 Sch 6 para (l)–(m) .… 3.92 Sch 6 para (n) .… 3.97 Sch 6 para (o) .… 3.98, 3.99 Sch 6 para (p) .… 3.100, 34.39 Sch 6 para (q) .… 3.102 Sch 6 para (r) .… 3.81, 3.83 Sch 6 para (s) .… 3.83 Sch 6 para (t) .… 3.104 Sch 6 para (u) .… 3.105 Sch 6 para (v) .… 3.106 Sch 6 para (w) .… 3.108 Workers Compensation Act 1926

s 71 .… 17.44 Workers Compensation Act 1987 s 151Z .… 5.6 NORTHERN TERRITORY Absconding Debtors Act 1978 Pt IV .… 4.29 Administration and Probate Act 1969 s 14(1) .… 37.1 s 14(2) .… 37.2 s 111 .… 37.16 Adoption of Children Act 1994 .… 30.1 s 6(1) .… 30.2 s 7 .… 30.2, 30.9 s 8 .… 30.10 s 13 .… 30.20 s 37 .… 30.5 s 49 .… 30.12 s 50 .… 30.15 s 50(1)(a) .… 30.24, 30.32 s 50(1)(b)–(c) .… 30.26 s 50(1)(d) .… 30.25 s 50(2)(a) .… 30.28 s 50(2)(b) .… 30.29 s 51 .… 30.27 s 52(1) .… 30.37, 30.38 s 82 .… 30.28 Adult Guardianship Act 1988 .… 31.3

s 30 .… 31.11, 31.12 Age of Majority Act 1981 .… 13.17 Choice of Law (Limitation Periods) Act 1994 .… 16.8, 20.59 Commercial Arbitration Act 1986 s 22(1) .… 39.6 s 38(2) .… 17.9 Community Welfare Act 1983 s 97(3) .… 5.17 Compensation (Fatal Injuries) Act 1974 s 7(1) .… 20.54, 24.43 Consumer Affairs and Fair Trading Act 1990 .… 3.78, 20.61 Corporations (Northern Territory) Act 1990 .… 35.2 s 42 .… 6.12 s 44 .… 6.12 De Facto Relationships Act 1991 Pt 2 .… 27.35 s 15 .… 27.36 s 17 .… 27.37 Defamation Act 2006 s 10 .… 20.16 Domicile Act 1979 .… 13.4, 13.9, 13.11, 13.12, 13.15, 13.16, 13.27 s 5 .… 13.18 s 6 .… 13.11, 13.21 s 7(2) .… 13.22 s 8(1) .… 13.12, 13.14 s 8(2) .… 13.12 s 9 .… 13.25

s 10 .… 13.9 s 11 .… 13.23 Electronic Transactions (Northern Territory) Act 2000 .… 3.62 Evidence Act 1939 .… 11.49, 17.13 s 49E .… 11.24 s 49E(3) .… 11.25 s 49I .… 11.30 s 49I(2) .… 11.32 s 49K .… 11.28 ss 49U–49ZC .… 11.53 s 50(2)(a)–(b) .… 11.14 s 50(2)(c) .… 11.16, 11.39 s 50(4) .… 11.19 s 50(6) .… 11.23 s 50(6)(a) .… 11.22 s 51(2)(b) .… 11.21 s 51(3) .… 11.21 s 52 .… 11.50 s 53 .… 11.50 s 53(3) .… 11.50 s 53(3)(b) .… 11.52 s 53(6)(a) .… 11.52 s 54(1) .… 11.51 s 63 .… 17.13 Evidence (National Uniform Legislation) Act s 21(1) .… 11.29 s 48 .… 8.54

s 49 .… 8.54 s 148 .… 11.47 Family Provision Act 1970 .… 38.42 s 8(1) .… 38.42 Foreign Judgments Act 1954 .… 41.2 Jurisdiction of Courts (Cross-vesting) Act 1987 .… 5.3, 6.1, 6.7, 6.54, 28.15 s 3(1) .… 6.11, 6.54 s 4 .… 6.54 s 4(3) .… 6.11 s 5 .… 6.51 s 5(1) .… 3.22 s 5(2) .… 3.21, 3.22, 5.19, 6.12–6.14, 6.17, 6.18, 6.30, 6.41, 6.52 s 5(2)(i) .… 6.19, 6.24, 8.52 s 5(2)(ii) .… 6.21, 6.24, 6.26, 6.28 s 5(2)(iii) .… 6.24, 6.27–6.29, 6.32 s 5(3) .… 3.22 s 5(4) .… 6.23 s 5(7) .… 6.14 s 8(1)(b) .… 6.13 s 9 .… 6.11 s 9(b) .… 6.14 s 11 .… 6.52, 6.53, 6.56–6.58, 6.60, 6.65 s 11(1) .… 6.35 s 11(1)(a) .… 6.35, 6.36 s 11(1)(b) .… 6.35, 6.39, 6.40, 6.43 s 11(1)(c) .… 6.35, 6.49 s 13 .… 6.15, 6.16

s 13(a) .… 6.15 s 13(b) .… 6.50 s 16(4)–(5) .… 6.6, 6.7 Law Reform (Miscellaneous Provisions) Act 1956 Pt II .… 20.56 s 6 .… 20.60 s 15(1) .… 20.28 Mental Health and Related Services Act 2005 .… 31.3 Pt 18 .… 31.11 s 150 .… 31.11 Motor Accidents (Compensation) Act 1979 .… 1.2 s 5 .… 20.65 s 5(1) .… 1.2 s 13 .… 1.2 s 17 .… 1.2 Personal Injuries (Liabilities and Damages) Act 2003 s 7 .… 20.27 s 8 .… 20.27 s 14 .… 16.30, 20.30 Proportionate Liability Act 2005 Pt 2 .… 16.32, 20.32, 20.49 s 13(1)(a) .… 16.32, 20.32 s 13(2)(b) .… 20.32 Sale of Goods (Vienna Convention) Act 1987 .… 3.60, 19.109 Status of Children Act 1978 .… 13.12, 13.13, 29.1, 29.13, 29.14 s 2A .… 29.16 s 4(1) .… 13.12, 29.15

s 4(2) .… 29.15 s 4A .… 29.33 s 5 .… 29.33 s 5A(2) .… 29.41 s 5A(2)(a) .… 29.40 s 5B(1)–(2) .… 29.43 s 5C .… 13.12, 29.41 s 5D(1) .… 13.12 s 5D(1)(a) .… 29.40, 29.41 s 5D(1)(b) .… 13.12, 29.40, 29.41 s 5D(2)–(3) .… 29.40, 29.41 s 5DA(1) .… 13.12 s 5DA(1)(a) .… 29.42 s 5DA(2)–(3) .… 29.42 s 5E .… 13.12 s 5E(b) .… 29.41 s 5F .… 13.12 s 6(1) .… 29.14 s 6(3) .… 29.14 s 9 .… 29.34 s 9B .… 29.34 Supreme Court Rules 2006 .… 3.132, 4.25 O 7 .… 3.36, 4.25 O 7.01(1)(e) .… 34.39 O 7.01(1)(f) .… 3.60 O 7.01(1)(g) .… 3.68 O 7.01(1)(h) .… 3.59

r 7.01(1)(a) .… 3.91 r 7.01(1)(c) .… 3.84 r 7.01(1)(d) .… 3.98, 3.99 r 7.01(1)(e) .… 3.100 r 7.01(1)(h) .… 3.85, 3.111 r 7.01(1)(j)–(k) .… 3.73 r 7.01(1)(m) .… 3.97 r 7.01(1)(n) .… 3.86, 3.87 r 7.01(1)(p) .… 3.92 r 7.01(1)(q) .… 3.101 r 7.02 .… 3.38 r 7.02(1) .… 8.19, 8.20 r 7.03(1) .… 11.9 r 7.06(a) .… 3.106 r 7.06(c) .… 4.2, 4.9, 41.8 r 7.07(3) .… 3.90 r 7A .… 3.26, 11.5 r 7A.02 .… 3.28 r 7A.03(2) .… 3.32 r 7A.04 .… 3.31, 11.5 r 7A.04(1) .… 3.28 r 7A.05 .… 3.31, 11.5 r 8.09 .… 3.113 r 37A .… 4.17 r 37A.07 .… 4.24 Wills Act 2000 Pt 5 .… 38.14

s 8(6) .… 38.69 s 10 .… 38.12 s 14 .… 38.39 s 15 .… 38.40 s 32 .… 38.23, 38.29, 38.38 s 35 .… 38.71 s 36 .… 38.71 s 45 .… 38.17 s 46(1) .… 38.15, 38.36 s 46(2)–(3) .… 38.16 s 46(4) .… 38.36 s 46(5) .… 38.68 s 46(6) .… 38.69 s 47 .… 38.18 s 48(1) .… 38.19 s 48(2) .… 38.20 Work Health Act 1986 s 52 .… 20.64 Workmen’s Compensation Act 1981 .… 16.13 QUEENSLAND Adoption Act 2009 .… 30.1 s 6(1) .… 30.10 s 11 .… 30.2, 30.9 s 37A .… 30.16 s 76 .… 30.20 s 189(1)(a) .… 30.2 s 189(1)(c)(ii)–(iii) .… 30.2

s 192 .… 30.5 s 199 .… 30.7 s 200(c)–(d) .… 30.7 s 291 .… 30.12 s 292 .… 30.15 s 293(1) .… 30.26 s 293(1)(a) .… 30.24 s 293(1)(b) .… 30.25 s 293(1)(e) .… 30.32 s 293(2) .… 30.32 s 293(3) .… 30.28 s 293(4) .… 30.29 s 293(5) .… 30.28 s 293(6) .… 30.31 s 299(1) .… 30.37, 30.38 s 299(2) .… 30.37 Age of Majority Act 1974 .… 13.17 Auctioneers, Real Estate Agents, Debt Collectors and Motor Dealers Acts 1922 to 1961 .… 19.19 British Probates Act 1898 s 4 .… 36.17 Choice of Law (Limitation Periods) Act 1996 .… 16.8, 20.59 Civil Liability Act 2003 Ch 2 Pt 2 .… 16.32 s 9(1)(b) .… 16.31, 20.23 s 11(1) .… 20.24 s 11(3)(a)–(b) .… 16.23, 20.31

s 11(4) .… 20.24 s 13 .… 20.29 s 14 .… 20.29 s 23(1) .… 20.25 ss 25–27 .… 20.27 ss 28–30 .… 20.49 s 31 .… 20.49 s 31(1)(a) .… 20.32 s 31(3) .… 20.32 s 32 .… 20.49 s 33 .… 20.49 s 35 .… 20.26 s 37 .… 20.27 ss 38–44 .… 20.27 s 39(2)–(4) .… 20.27 s 47(1)–(3) .… 16.30, 20.30 Commercial Arbitration Act 1990 s 22(1) .… 39.6 s 38(2) .… 17.9 Commonwealth Powers (Family Law-Children) Act 1990 .… 28.1 Corporations (Commonwealth Powers) Act 2001 .… 35.1 Corporations (Queensland) Act 1990 .… 35.2 s 42 .… 6.12 s 44 .… 6.12 Credit Act 1987 s 5(1) .… 19.46 Defamation Act 2005

s 11 .… 20.16 Defamation Law of 1889 .… 6.42 Domicile Act 1981 .… 13.4, 13.9, 13.11, 13.12, 13.15, 13.16, 13.27 s 5 .… 13.18 s 6 .… 13.11, 13.21 s 7(2) .… 13.22 s 8(1) .… 13.12, 13.14 s 8(2) .… 13.12 s 9 .… 13.25 s 10 .… 13.9 s 11 .… 13.23 Electronic Transactions (Queensland) Act 2001 .… 3.62 Evidence Act 1977 .… 11.49 s 26(1) .… 11.41 s 37(2)(b) .… 11.52 s 37(4)(a) .… 11.52 s 38(1) .… 11.51 s 39R .… 11.24 ss 39G–39P .… 11.53 s 39U .… 11.30 s 39U(2)(e) .… 11.32 s 39W .… 11.28 s 39X .… 11.29 s 42 .… 11.47 s 42A .… 11.47 s 68 .… 17.13 s 95 .… 8.54

Evidence on Commission Act 1988 s 4(1)(a)–(b) .… 11.14 s 4(1)(c) .… 11.16, 11.39 s 4(2) .… 11.19 s 4(4) .… 11.23 s 4(4)(a) .… 11.22 s 7(3)(b) .… 11.21 s 7(4) .… 11.21 Fair Trading Act 1989 .… 3.78 s 16 .… 20.61 Federal Courts (Consequential Amendments) Act 2001 s 39 .… 6.7 Federal Courts (State Jurisdiction) Act 1999 s 6 .… 6.2 Guardianship and Administration Act 2000 .… 31.3 ss 166–171 .… 31.11 Jurisdiction of Courts (Cross-vesting) Act 1987 .… 5.3, 6.1, 6.7, 6.35, 6.54, 28.15 s 3(1) .… 6.11, 6.54 s 4 .… 6.54 s 4(3) .… 6.11 s 5 .… 6.51 s 5(1) .… 3.22 s 5(2) .… 3.21, 3.22, 5.19, 6.12–6.14, 6.17, 6.18, 6.30, 6.41, 6.52 s 5(2)(i) .… 6.19, 6.24, 8.52 s 5(2)(ii) .… 6.21, 6.24, 6.26, 6.28 s 5(2)(iii) .… 6.24, 6.27–6.29, 6.32

s 5(3) .… 3.22 s 5(4) .… 6.23 s 5(7) .… 6.14 s 8(1)(b) .… 6.13 s 9 .… 6.11 s 9(b) .… 6.14 s 11 .… 6.52, 6.53, 6.56–6.58, 6.60, 6.65 s 11(1) .… 6.35 s 11(1)(a) .… 6.35, 6.36 s 11(1)(b) .… 6.35, 6.39, 6.40, 6.43 s 11(1)(c) .… 6.35, 6.49 s 13 .… 6.15, 6.16 s 13(a) .… 6.15 s 13(b) .… 6.50 s 16(4)–(5) .… 6.6, 6.7 Justices of the Peace and Commissioners for Declarations Act 1991 s 31 .… 11.47 Law Reform Act 1995 s 5 .… 20.28 s 12 .… 20.64 s 13 .… 20.64 s 15 .… 20.27 s 16 .… 20.27 Mental Health Act 2000 .… 31.3 Money Lenders Act 1916 s 4 .… 6.25 Motor Accident Insurance Act 1994

s 52(2) .… 20.53 Motor Vehicle Insurance Act 1936 .… 1.2 Motor Vehicles Securities Act 1986 s 13 .… 33.45 s 26(1) .… 33.45 Personal Injuries Proceedings Act 2002 s 7(1) .… 16.4 Property Law Act 1974 Pt 19 .… 27.35, 27.37 Public Trustee Act 1978 ss 78–79 .… 31.12 Queensland Law Society Act 1952 .… 19.81 Reciprocal Enforcement of Judgments Act 1959 .… 41.2 Sale of Goods (Vienna Convention) Act 1986 .… 3.60, 19.109 Status of Children Act 1978 .… 13.12, 13.13, 29.1, 29.13, 29.14 s 2 .… 29.16 s 6(1) .… 13.12, 29.15 s 6(2) .… 29.15 s 14(1)–(2) .… 29.43 s 15(1) .… 29.40, 29.41 s 17(2)(a) .… 13.12, 29.40 s 17(2)(b) .… 29.40 s 17(3)–(4) .… 29.40, 29.41 s 18(2)(a)–(b) .… 13.12, 29.40 s 18(3)–(4) .… 29.40 s 19(2)(a) .… 13.12 s 19(2)(b) .… 13.12, 29.41

s 19(2)(c) .… 29.41 s 19(2)(d)(i)–(ii) .… 29.41 s 19B .… 29.42 s 19C(3) .… 13.12, 29.42 s 19D(2) .… 13.12, 29.41 s 19D(2)(b) .… 13.12 s 19D(3) .… 13.12 s 19E(2)(a)–(b) .… 13.12, 29.41 s 19E(4) .… 13.12 s 19F–G .… 29.42 s 23(2)(a)–(b) .… 29.41 s 23(4) .… 29.41 s 24 .… 29.33 s 26 .… 29.34 s 27 .… 29.34 s 28 .… 29.33 s 33(1) .… 29.14 s 34 .… 29.14 Succession Act 1981 Pt 4 .… 38.42 Pt 2 Div 6 .… 38.14 s 5 .… 38.15, 38.17 s 6(1) .… 37.1 s 9(2) .… 37.2 s 10(11)–(12) .… 38.69 s 14 .… 38.39 s 15 .… 38.40

s 18 .… 38.12 s 33D .… 38.23, 38.29, 38.38 s 33I .… 38.71 s 33J .… 38.71 s 33T(1) .… 38.15, 38.36 s 33T(2)(a)–(b) .… 38.16 s 33T(2)(c) .… 38.68 s 33T(2)(d) .… 38.36 s 33T(3) .… 38.69 s 33U .… 38.18 s 33V(1) .… 38.19 s 33W .… 38.20 s 41 .… 38.42 s 66 .… 20.56 s 66(2) .… 20.60 Supreme Court Act 1995 s 17 .… 20.54 s 72 .… 4.29 Supreme Court (Foreign Judgments) Rules 1993 r 10(1) .… 41.8 Surrogacy Act 2010 s 12 .… 29.45 s 21 .… 29.45 s 22(2)(g) .… 29.45 s 54 .… 29.45 s 56 .… 29.45 Uniform Civil Procedure Rules 1999 .… 3.132, 4.25

Ch 4, Pt 7 .… 3.36, 3.37 Ch 8, Div 2 .… 4.17 Pt 7, Div 3 .… 3.26, 11.5 r 107 .… 35.20 r 124 .… 3.42 r 124(g) .… 3.55 r 124(i) .… 3.59 r 124(1) .… 3.37, 3.53 r 124(1)(a) .… 3.80 r 124(1)(b)(i)–(ii) .… 3.91 r 124(1)(c) .… 3.92 r 124(1)(d) .… 3.84 r 124(1)(e)(i) .… 3.98 r 124(1)(e)(ii) .… 3.99 r 124(1)(f) .… 3.100, 34.39 r 124(1)(g) .… 3.60 r 124(1)(h) .… 3.68 r 124(1)(i) .… 3.85, 3.111 r 124(1)(j) .… 3.103 r 124(1)(k–l) .… 3.73 r 124(1)(m)(i)–(ii) .… 3.102 r 124(1)(n) .… 3.90 r 124(1)(o) .… 3.97 r 124(1)(p) .… 3.86 r 124(1)(q) .… 3.101 r 124(1)(t)(i) .… 3.81 r 124(1)(t)(ii) .… 3.92

r 124(1)(u) .… 3.83 r 124(1)(v) .… 3.104 r 124(1)(w) .… 3.106 r 124(1)(x) .… 3.107 r 127(b) .… 4.2, 4.9, 11.8, 11.37, 41.8 r 130B .… 3.28 r 130C(2) .… 3.32 r 130D(1) .… 3.28 r 130D(2) .… 3.31, 11.5 r 130E(1)(b) .… 3.31, 11.5 r 131 .… 11.50 r 260F .… 4.24 r 392(1) .… 11.24 r 408 .… 11.39 SOUTH AUSTRALIA Administration and Probate Act 1919 s 5 .… 37.1 s 17 .… 37.16 s 19 .… 37.16 Adoption Act 1988 .… 30.1 s 4(1) .… 30.37 s 7 .… 30.10 s 8(1) .… 30.2 s 12 .… 30.20 s 20 .… 30.12 s 21(1) .… 30.15, 30.32 s 21(1)(a) .… 30.24

s 21(1)(b) .… 30.25 s 21(1)(c) .… 30.26 s 21(1)(d) .… 30.29 s 21(2) .… 30.37, 30.38 s 21(4) .… 30.32 s 21(a1) .… 30.15 Aged and Infirm Persons Property Act 1940 s 32A–B .… 31.12 Age of Majority (Reduction) Act 1970 .… 13.17 Civil Liability Act 1936 s 23 .… 20.54 s 32(1)(b) .… 16.31, 20.23 s 33 .… 20.26 s 34(1) .… 20.24 s 34(3) .… 20.24 s 36 .… 20.29 s 37 .… 20.29 s 44(1) .… 20.25 s 46(1)–(2) .… 20.30 s 64 .… 20.64 s 65 .… 20.64 s 74 .… 20.27 Commercial Arbitration and Industrial Referral Agreements Act 1986 s 22(1) .… 39.6 s 38(2) .… 17.9 Commonwealth Powers (Family Law) Act 1986 .… 28.1 Consumer Transactions Act 1982

s 3 .… 19.46 s 6 .… 19.46 Corporations (Commonwealth Powers) Act 2001 .… 35.1 Corporations (South Australia) Act 1990 .… 35.2 s 42 .… 6.12 s 44 .… 6.12 De Facto Relationships Act 1996 .… 27.37 Defamation Act 2005 s 11 .… 20.16 Domestic Partners Property Act 1996 Pt 3 .… 27.35 s 9(2) .… 27.36 Domicile Act 1980 .… 13.4, 13.9, 13.11, 13.12, 13.15, 13.16, 13.27 s 5 .… 13.18 s 6 .… 13.11, 13.21 s 7(2) .… 13.22 s 8(1) .… 13.12, 13.14 s 8(2) .… 13.12 s 9 .… 13.25 s 10 .… 13.9 s 11 .… 13.23 Electronic Transactions Act 2000 .… 3.62 Evidence Act 1929 .… 11.49 Pt 6C .… 11.24 s 45C(3)(b) .… 8.54 s 59E(1) .… 11.19 s 59E(1)(a)–(b) .… 11.14

s 59E(1)(c) .… 11.16, 11.39 s 59E(4) .… 11.24 s 59F(1) .… 11.50, 11.52 s 59F(7) .… 11.51 s 59IE .… 11.24 ss 59IH–59IP .… 11.53 s 63 .… 17.11 s 63a .… 17.7 Fair Trading Act 1987 .… 3.78 s 14 .… 20.61 Family Relationships Act 1975 .… 29.1, 29.13, 29.14 s 6(1) .… 13.12, 29.15 s 6(2) .… 29.15 s 6(3) .… 29.14 s 6(4) .… 29.16 s 7(b)–(c) .… 29.34 s 8 .… 29.33 s 10A(1) .… 29.42 s 10A(2)–(3) .… 29.40 s 10B(1) .… 29.43 s 10B(3) .… 29.43 s 10C(1)–(2) .… 13.12, 29.41 s 10C(3) .… 13.12, 29.40 s 10C(3)(b)(i) .… 29.41 s 10C(3)(b)(ii) .… 29.42 s 10C(4) .… 13.12, 29.40, 29.41 s 10C(6) .… 29.40–29.42

s 10G .… 29.45 s 10H .… 29.45 Federal Courts (State Jurisdiction) Act 1999 s 6 .… 6.2 Foreign Judgments Act 1971 .… 41.2 s 5 .… 41.2 Guardianship and Administration Act 1993 .… 31.3 s 34(2) .… 31.11 Inheritance (Family Provision) Act 1972 .… 38.42 s 7(1) .… 38.42 s 7(1)(a) .… 38.48 Jurisdiction of Courts (Cross-vesting) Act 1987 .… 6.1, 6.7, 6.35, 6.54, 28.15 s 3(1) .… 6.11, 6.54 s 4 .… 6.54 s 4(3) .… 6.11 s 5 .… 6.51, 34.30 s 5(1) .… 3.22 s 5(2) .… 3.21, 3.22, 5.19, 6.12, 6.14, 6.17, 6.18, 6.30, 6.41, 6.52 s 5(2)(i) .… 6.19, 6.24, 8.52 s 5(2)(ii) .… 6.21, 6.24, 6.26, 6.28 s 5(2)(iii) .… 6.24, 6.27–6.29, 6.32 s 5(3) .… 3.22 s 5(4) .… 6.23 s 5(7) .… 6.14 s 8(1)(b) .… 6.13 s 9 .… 6.11 s 9(b) .… 6.14

s 11 .… 6.52, 6.53, 6.56–6.58, 6.60, 6.65 s 11(1) .… 6.35 s 11(1)(a) .… 6.35, 6.36 s 11(1)(b) .… 6.35, 6.39, 6.40, 6.43 s 11(1)(c) .… 6.35, 6.49 s 13 .… 6.15, 6.16 s 13(a) .… 6.15 s 13(b) .… 6.50 s 16(4)–(5) .… 6.6, 6.7 Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 Pt 3 .… 16.32, 20.32, 20.49 s 3(1) .… 20.28 s 8(2)(a) .… 16.32, 20.32 s 8(2)(b) .… 20.32 Limitation of Actions Act 1936 s 38A .… 20.59 Matrimonial Causes Act 1929 s 17 .… 26.78 Mental Health Act 2009 .… 31.3 ss 61–78 .… 31.11 Motor Vehicles Act 1959 ss 115–116 .… 20.53 Sale of Goods Act 1895 s 22 .… 33.42 Sale of Goods (Vienna Convention) Act 1986 .… 3.60, 19.109 Supreme Court Civil Rules 2006 .… 3.37, 3.132, 11.10

Ch 3, Pt 3, Div 3, Subdiv 2 .… 3.26, 11.5 r 40 .… 3.36 r 40(1) .… 3.37 r 40(1)(a)(i) .… 3.91 r 40(1)(a)(ii) .… 3.92 r 40(1)(b) .… 3.84 r 40(1)(c) .… 3.86, 3.87 r 40(1)(d) .… 3.59 r 40(1)(d)(i) .… 3.60 r 40(1)(e) .… 3.68 r 40(1)(f)(i)–(ii) .… 3.73 r 40(1)(g) .… 3.100, 34.39 r 40(1)(h) .… 3.98 r 40(1)(i) .… 3.99 r 40(1)(j) .… 3.104, 3.105 r 40(1)(l) .… 3.85, 3.111 r 40(1)(m) .… 3.97 r 41(1) .… 4.2, 4.9 r 41(3) .… 11.10 r 41B .… 3.28 r 41C(2) .… 3.32 r 41D .… 3.31, 11.5 r 41D(1) .… 3.28 r 41E .… 3.31, 11.5 r 64 .… 35.13 r 247 .… 4.17 r 247(7) .… 4.2, 4.9, 4.24

Survival of Causes of Action Act 1940 .… 20.56 s 3 .… 20.60 Trustee Act 1936 s 59C .… 34.30 Volunteers Protection Act 2001 .… 20.27 Wills Act 1936 Pt 3 .… 38.14 s 10 .… 38.69 s 12(2) .… 38.12 s 20 .… 38.39 s 20A .… 38.40 s 23 .… 38.23, 38.29, 38.38 s 25A(1) .… 38.15, 38.17 s 25A(2) .… 38.18 s 25A(3) .… 38.19 s 25A(5) .… 38.20 s 25B .… 38.15, 38.36 s 25C(1)(a)–(b) .… 38.16 s 25C(c) .… 38.36 s 25C(d) .… 38.68, 38.69 ss 29–31 .… 38.71 Wrongs Act 1936 s 23(b) .… 12.17 TASMANIA Administration and Probate Act 1935 s 27 .… 20.56 s 27(3) .… 20.60

s 27(5) .… 20.57 s 47A(2) .… 37.16 s 48 .… 37.16 Adoption Act 1988 .… 30.1 s 6(1)(a)–(b) .… 30.2 s 7 .… 30.2, 30.9 s 8 .… 30.10 s 20(2A)(a)–(b) .… 30.20 s 42 .… 30.5 s 46(1) .… 30.7 s 59 .… 30.15, 30.16 s 59(2) .… 30.12 s 60(1) .… 30.24, 30.32 s 60(2)(a) .… 30.24 s 60(2)(b) .… 30.25 s 60(2)(c)–(d) .… 30.26 s 60(3) .… 30.28 s 60(4) .… 30.29 s 60(5) .… 30.28 s 60(6) .… 30.31 s 61(2) .… 30.37, 30.38 s 61(4) .… 30.37 s 96 .… 30.28 Age of Majority Act 1973 .… 13.17 Australian Consumer Law (Tasmania) Act s 6 .… 20.61 Civil Liability Act 2002

Pt 9A .… 16.32, 20.32, 20.49 s 5(1) .… 20.30 s 5(4) .… 20.30 s 11(1)(b) .… 16.31, 20.23 s 13(1) .… 20.24 s 13(3)(a)–(b) .… 16.23, 20.31 s 13(4) .… 20.24 s 15 .… 20.29 s 16 .… 20.29 s 23(1) .… 20.25 s 28D .… 20.64 ss 29–35 .… 20.26 s 38 .… 20.26 s 41 .… 20.26 s 42 .… 20.27 s 43B(1)(a)–(b) .… 16.32, 20.32 ss 44–49 .… 20.27 Commercial Arbitration Act 1985 s 22(1) .… 39.6 Commercial Arbitration Act 1986 s 38(2) .… 17.9 Commonwealth Powers (Family Law) Act 1987 .… 28.1 Corporations (Commonwealth Powers) Act 2001 .… 35.1 Corporations (Tasmania) Act 1990 .… 35.2 s 42 .… 6.12 s 44 .… 6.12 De Facto Relationships Act 1999 .… 27.37

Defamation Act 1957 .… 6.42 Defamation Act 2005 s 11 .… 20.16 Domicile Act 1980 .… 13.4, 13.9, 13.11, 13.12, 13.15, 13.16, 13.27 s 5 .… 13.18 s 6 .… 13.11, 13.21 s 7(2) .… 13.22 s 8(1) .… 13.12, 13.14 s 8(2) .… 13.12 s 9 .… 13.25 s 10 .… 13.9 s 11 .… 13.23 Electronic Transactions Act 2000 .… 3.62 Evidence Act 2001 .… 11.49, 17.10 s 48 .… 8.54 s 49 .… 8.54 s 148 .… 11.47 s 174 .… 17.10 s 175 .… 17.10 s 176 .… 17.7 Evidence (Audio and Visual Links) Act 1999 s 6 .… 11.24 s 10C .… 11.30 s 10C(2) .… 11.32 s 10D(1) .… 11.28 s 10D(2)–(3) .… 11.29 ss 11–19 .… 11.53

Evidence on Commission Act 2001 s 5 .… 11.50 s 5(3) .… 11.50 s 5(3)(b) .… 11.52 s 5(6)(a) .… 11.52 s 6(1) .… 11.51 s 7(2)(a)–(b) .… 11.14 s 7(2)(c) .… 11.16, 11.39 s 7(3) .… 11.19 s 7(5) .… 11.23 s 7(5)(a) .… 11.22 s 7(7)(b) .… 11.21 s 7(8) .… 11.21 Fair Trading Act 1990 .… 3.78 Fatal Accidents Act 1934 s 4 .… 20.54, 24.43 Federal Courts (Consequential Amendments) Act 2001 s 34 .… 6.7 Federal Courts (State Jurisdiction) Act 1999 s 6 .… 6.2 Foreign Judgments Act 1963 .… 41.2 Guardianship and Administration Act 1995 .… 31.3 s 81 .… 31.11 Jurisdiction of Courts (Cross-vesting) Act 1987 .… 6.1, 6.7, 6.35, 6.54, 28.15 s 3(1) .… 6.11, 6.54 s 4 .… 6.54 s 4(3) .… 6.11

s 5 .… 6.51 s 5(1) .… 3.22 s 5(2) .… 3.21, 3.22, 5.19, 6.12, 6.14, 6.17, 6.18, 6.30, 6.41, 6.52 s 5(2)(i) .… 6.19, 6.24, 8.52 s 5(2)(ii) .… 6.21, 6.24, 6.26, 6.28 s 5(2)(iii) .… 6.24, 6.27–6.29, 6.32 s 5(3) .… 3.22 s 5(4) .… 6.23 s 5(7) .… 6.14 s 8(1)(b) .… 6.13 s 9 .… 6.11 s 9(b) .… 6.14 s 11 .… 6.52, 6.53, 6.56–6.58, 6.60, 6.65 s 11(1) .… 6.35 s 11(1)(a) .… 6.35, 6.36 s 11(1)(b) .… 6.35, 6.39, 6.40, 6.43 s 11(1)(c) .… 6.35, 6.49 s 13 .… 6.15, 6.16 s 13(a) .… 6.15 s 13(b) .… 6.50 s 16(4)–(5) .… 6.6, 6.7 Limitation Act 1974 ss 32A–32D .… 16.8, 20.59 Mental Health Act 1996 .… 31.3 s 83D .… 31.11 Public Trustee Act 1930 s 67 .… 31.12

Relationships Act 2003 Pt 2 .… 38.39 Pt 5 .… 27.35 s 4 .… 29.42 Sale of Goods (Vienna Convention) Act 1987 .… 3.60, 19.109 Status of Children Act 1978 .… 13.12, 13.13, 29.1, 29.13, 29.14 s 3(1) .… 13.12, 29.15 s 3(2) .… 29.15 s 3(4) .… 29.16 s 4(1) .… 29.14 s 4(3) .… 29.14 s 5 .… 29.33 s 8 .… 29.33 s 8B–C .… 29.34 s 10A(1)–(2) .… 29.43 s 10C .… 29.41 s 10C(1) .… 13.12, 29.40–29.42 s 10C(1A) .… 13.12, 29.42 s 10C(2) .… 13.12, 29.40, 29.41 s 10C(3)–(4) .… 13.12, 29.41 s 10C(5) .… 29.40–29.42 Supreme Court Civil Procedure Act 1932 s 6(5) .… 37.1 s 36 .… 17.7 Supreme Court Rules 2000 .… 3.132 Div 1A .… 4.17 Div 10 .… 3.36

Pt 36 .… 4.17 Pt 38A .… 3.26, 11.5 r 147 .… 11.37 r 147(2) .… 11.9 r 147A .… 4.2, 4.9 r 147A(1) .… 3.37, 3.83, 3.107 r 147A(1)(a) .… 3.84 r 147A(1)(b) .… 3.53, 3.80 r 147A(1)(c)–(d) .… 3.73 r 147A(1)(e) .… 3.91 r 147A(1)(f) .… 3.59, 3.85, 3.111 r 147A(1)(g) .… 3.86 r 147A(1)(h) .… 3.55, 3.59 r 147A(1)(h)(i) .… 3.60 r 147A(1)(h)(iv) .… 3.68 r 147A(1)(i) .… 3.90 r 147A(1)(j) .… 3.91 r 147A(1)(k)(i) .… 3.81, 3.101 r 147A(1)(k)(ii) .… 3.83 r 147A(1)(l) .… 3.83 r 147A(1)(m–n) .… 3.92 r 147A(1)(o) .… 3.97 r 147A(1)(p)(i) .… 3.98 r 147A(1)(p)(ii) .… 3.99 r 147A(1)(q) .… 3.100, 34.39 r 147A(1)(r)(i)–(ii) .… 3.102 r 147A(1)(s) .… 3.104

r 147A(1)(t) .… 3.105 r 147A(1)(u) .… 3.106 r 147B .… 3.37 r 147B(1) .… 3.41 r 167 .… 3.113 r 721 .… 41.8 r 937G .… 4.2, 4.9, 4.24 r 970B .… 3.28 r 970C(2) .… 3.32 r 970D(1) .… 3.28 r 970D(2) .… 3.31, 11.5 r 970E(1)(b) .… 3.31, 11.5 Surrogacy Act 2012 s 13 .… 29.45 s 16 .… 29.45 s 40 .… 29.45 Testator’s Family Maintenance Act 1912 .… 38.42 s 3 .… 38.42 Wills Act 2008 Pt 5 .… 38.14 s 4 .… 38.17 s 8(5) .… 38.69 s 10 .… 38.12 s 16 .… 38.39 s 17 .… 38.40 s 47 .… 38.23, 38.29, 38.38 s 50 .… 38.71

s 51 .… 38.71 s 60(1) .… 38.15, 38.36 s 60(2)(a)–(b) .… 38.16 s 60(2)(c) .… 38.36 s 60(2)(d) .… 38.68 s 60(3) .… 38.69 s 61 .… 38.18 s 62(1) .… 38.19 s 62(2) .… 38.20 Wrongs Act 1954 s 2 .… 20.28 VICTORIA Accident Compensation Act 1985 .… 5.6 s 135A .… 20.64 Administration and Probate Act 1958 .… 38.42 s 6 .… 37.1 s 29 .… 20.56, 20.57 s 29(2) .… 20.60 s 88(4) .… 37.16 s 88D(1) .… 37.16 s 91 .… 38.42 Adoption Act 1984 .… 30.1 s 6(1)(b) .… 30.37 s 7(1)(a)–(b) .… 30.2 s 8 .… 30.2, 30.9 s 9 .… 30.10 s 11 .… 30.20

s 47 .… 30.5 s 51(1)(b) .… 30.7 s 66 .… 30.12 s 67(1) .… 30.24, 30.32 s 67(2)(a) .… 30.24 s 67(2)(aa) .… 30.25 s 67(2)(b)–(c) .… 30.26 s 67(3) .… 30.27 s 67(5) .… 30.28 s 67(6) .… 30.29 s 67(7) .… 30.28 s 67(8) .… 30.31 s 69(1) .… 30.37, 30.38 s 69(2) .… 30.37 s 69D .… 30.15 s 69D(1) .… 30.16 s 69E .… 30.15, 30.16 s 69F .… 30.15 s 69U .… 30.21 Age of Majority Act 1977 .… 13.17 Australian Consumer Law and Fair Trading Act 2012 .… 3.78 s 8 .… 20.61 Choice of Law (Limitation Periods) Act 1993 .… 16.8, 20.59 Commercial Arbitration Act 1984 s 22(1) .… 39.6 s 33 .… 43.2 s 38(2) .… 17.9

Commonwealth Powers (Family Law-Children) Act 1986 .… 28.1 Corporations (Commonwealth Powers) Act 2001 .… 35.1 Corporations (Victoria) Act 1990 .… 35.2 s 42 .… 6.12 s 44 .… 6.12 Credit Act 1984 s 3(1) .… 19.46 Defamation Act 2005 s 11 .… 20.16 Domicile Act 1978 .… 13.4, 13.9, 13.11, 13.12, 13.15, 13.16, 13.27 s 5 .… 13.18 s 6 .… 13.11, 13.21 s 7(2) .… 13.22 s 8(1) .… 13.12, 13.14 s 8(2) .… 13.12 s 9 .… 13.25 s 10 .… 13.9 s 11 .… 13.23 Electronic Transactions Act 2000 .… 3.62 Evidence Act 1958 .… 17.35 s 9B(1)(a)–(b) .… 11.14 s 9B(1)(c) .… 11.16, 11.39 s 9B(2) .… 11.19 s 9B(4) .… 11.23 s 9B(4)(a) .… 11.22 s 9B(6)(b) .… 11.21 s 9B(7) .… 11.21

s 9N(1) .… 11.50 s 9N(3) .… 11.50 s 9N(3)(b) .… 11.52 s 9N(6)(a) .… 11.52 s 9O .… 11.51 s 42E .… 11.24 s 42W .… 11.30 s 42W(2) .… 11.32 s 42Y .… 11.28 s 48 .… 8.54 s 49 .… 8.54 Evidence Act 2008 .… 11.49, 17.10 s 21(1) .… 11.29 s 60 .… 17.35 s 61 .… 17.35 s 76 .… 17.35 s 126J–K .… 11.32 s 148 .… 11.47 s 174 .… 17.10 s 175 .… 17.10 s 176 .… 17.7 Fatal Accidents Act 1846 .… 20.9, 24.43 Federal Courts (Consequential Amendments) Act 2000 s 24 .… 6.7 Federal Courts (State Jurisdiction) Act 1999 s 6 .… 6.2 Foreign Judgments Act 1962 .… 41.2

Guardianship and Administration Act 1986 .… 31.3 ss 63A—63G .… 31.11 Jurisdiction of Courts (Cross-vesting) Act 1987 .… 6.1, 6.7, 6.35, 6.54, 28.15 s 3(1) .… 6.11, 6.54 s 4 .… 6.54 s 4(3) .… 6.11 s 5 .… 6.51 s 5(1) .… 3.22 s 5(2) .… 3.21, 3.22, 5.19, 6.12, 6.14, 6.17, 6.18, 6.30, 6.41, 6.52 s 5(2)(i) .… 6.19, 6.24, 8.52 s 5(2)(ii) .… 6.21, 6.24, 6.26, 6.28 s 5(2)(iii) .… 6.24, 6.27–6.29, 6.32 s 5(3) .… 3.22 s 5(4) .… 6.23 s 5(7) .… 6.14 s 8(1)(b) .… 6.13 s 9 .… 6.11 s 9(b) .… 6.14 s 11 .… 6.52, 6.53, 6.56–6.58, 6.60, 6.65 s 11(1) .… 6.35 s 11(1)(a) .… 6.35, 6.36 s 11(1)(b) .… 6.35, 6.39, 6.40, 6.43 s 11(1)(c) .… 6.35, 6.49 s 13 .… 6.15, 6.16 s 13(a) .… 6.15 s 13(b) .… 6.50 s 16(4)–(5) .… 6.6, 6.7

Married Women’s Property Act 1890 .… 24.48, 34.44 Mental Health Act 1986 .… 31.3 s 93A—93L .… 31.11 Property Law Act 1958 Pt IX .… 27.35 s 280 .… 27.36 s 283 .… 27.37 Road Management Act 2004 ss 102–103 .… 20.27 Sale of Goods (Vienna Convention) Act 1987 .… 3.60, 19.8, 19.109 State Trustees (State Owned Company) Act 1994 s 12 .… 31.12 Status of Children Act 1974 .… 13.12, 13.13, 29.1, 29.13, 29.14 s 3(1) .… 13.12, 29.15 s 3(2) .… 29.15 s 3(4) .… 29.16 s 4(1) .… 29.14 s 4(3) .… 29.14 s 5 .… 29.33 s 8(2) .… 29.34 s 8(5)–(6) .… 29.34 s 10A(1) .… 29.40, 29.41 s 10B(1)–(2) .… 29.43 s 10C(2)(a)–(b) .… 13.12, 29.40 s 10C(3)(a) .… 29.40 s 10C(4) .… 29.40 s 10D(2)(a)–(b) .… 13.12, 29.40

s 10D(3)(a) .… 29.40 s 10D(4) .… 29.40 s 10E(2)(a)–(b) .… 13.12, 29.41 s 10E(2)(c)–(d) .… 13.12 s 10E(2)(e)–(f) .… 29.41 s 10E(2)(i) .… 13.12 s 10E(3)(a) .… 29.41 s 10E(4) .… 29.41 s 13(1)(a) .… 13.12 s 13(1)(b) .… 13.12, 29.42 s 13(1)(c) .… 13.12 s 13(2)–(3) .… 29.42 s 14(1)(a) .… 13.12 s 14(1)(b) .… 29.42 s 14(1)(c) .… 13.12 s 14(1)(d) .… 13.12, 29.41 s 14(2)–(3) .… 29.42 s 15(1)(b) .… 13.12 s 16(1)(a) .… 29.41 s 16(1)(b) .… 13.12, 29.41 s 16(1)(c) .… 13.12, 29.41 s 20 .… 29.45 s 22 .… 29.45 Supreme Court Act 1986 s 37(3) .… 4.17 s 39 .… 17.7 Supreme Court (General Civil Procedure) Rules 2005 .… 3.132, 4.25

O 7 .… 3.36 O 7, Pt 1 .… 3.27 O 7, Pt 2 .… 3.27 O 7.01(1)(f) .… 3.60 O 7.01(1)(g) .… 3.68 O 37A .… 4.17 O 80 .… 3.26, 3.27, 11.5 r 7.01(1)(a) .… 3.91 r 7.01(1)(c) .… 3.84 r 7.01(1)(d) .… 3.98, 3.99 r 7.01(1)(e) .… 3.100, 3.101, 34.39 r 7.01(1)(f) .… 3.59 r 7.01(1)(h) .… 3.59, 3.85, 3.111 r 7.01(1)(h)(i) .… 3.73 r 7.01(1)(j) .… 3.73 r 7.01(1)(k) .… 3.97 r 7.01(1)(l) .… 3.86, 3.87 r 7.01(1)(m) .… 3.92 r 7.04 .… 3.37 r 7.04(1)(a) .… 3.41 r 7.05 .… 3.37 r 7.06(a)(i)–(ii) .… 3.106 r 7.06(c) .… 4.2, 4.9, 11.8, 11.37 r 7.07(1) .… 3.90 r 7.07(3) .… 3.40, 3.90 r 7.09 .… 3.27 r 7.09(a) .… 11.8, 11.37

r 8.09 .… 3.113 r 21.03(1.2) .… 23.11 r 37A.07 .… 4.24 r 68.02(1)(f) .… 23.20 r 80.02 .… 3.28 r 80.03(2) .… 3.32 r 80.04 .… 3.31, 11.5 r 80.04(1) .… 3.28 r 80.05 .… 3.31, 11.5 Supreme Court (Miscellaneous Civil Proceedings) Rules 1998 s 11.19 .… 41.8 Transport Accident Act 1986 .… 2.30, 2.33, 20.39 s 93 .… 16.18, 16.19, 20.64 s 104 .… 2.33 Wills Act 1997 Pt 2 Div 6 .… 38.14 s 7(4) .… 38.69 s 9(1) .… 38.12 s 13 .… 38.39 s 13(4) .… 38.40 s 17(1) .… 38.15, 38.36 s 17(2)(a)–(b) .… 38.16 s 17(2)(c) .… 38.36 s 17(2)(d) .… 38.68 s 17(3) .… 38.69 s 18 .… 38.18 s 19(1) .… 38.19

s 19(2) .… 38.20 s 37 .… 38.23, 38.29, 38.38 s 41 .… 38.71 Wrongs Act 1958 .… 20.46, 20.77 Pt IVAA .… 16.32, 20.32, 20.49 s 15 .… 12.8 s 16 .… 20.54 s 23A(1) .… 20.46 s 23B(6) .… 20.46 s 24AI(1)(a) .… 16.32, 20.32 s 24AI(3) .… 16.32, 20.32 s 25 .… 20.28 ss 31A–31H .… 20.27 ss 34–42 .… 20.27 s 48(1)(b) .… 16.31, 20.23 s 51(1) .… 20.24 s 51(4) .… 20.24 s 53 .… 20.29 s 54(1) .… 20.29 s 61(1) .… 16.33, 20.33 s 62(1) .… 20.25 ss 67–75 .… 20.26 s 83 .… 20.26 WESTERN AUSTRALIA Administration Act 1903 s 6 .… 37.1 s 47A .… 29.1

s 61 .… 37.16 Adoption Act 1994 .… 29.1, 30.1 s 3(1)(a) .… 30.10 s 4 .… 30.37 s 38(2) .… 30.20 s 39(1)(e) .… 30.20 s 65(1) .… 30.2 s 65(3) .… 30.2, 30.9 s 136 .… 30.12 s 136A .… 30.15 s 136A(1) .… 30.16 s 136B .… 30.15 s 136C .… 30.16 s 138(1) .… 30.32 s 138(1)(a) .… 30.24 s 138(1)(b) .… 30.25 s 138(1)(c) .… 30.29 s 138(1)(d)(i)–(ii) .… 30.26 s 138(2) .… 30.28 s 138(3) .… 30.37, 30.38 s 138(7) .… 30.28 Adoption of Children Act 1896 .… 29.1 Age of Majority Act 1972 .… 13.17 Artificial Conception Act 1985 .… 13.12 s 3(1) .… 29.40 s 3(2) .… 29.41 s 5 .… 13.12, 29.41

s 6(1) .… 29.40, 29.41 s 6(1)(b) .… 13.12 s 6(2) .… 29.40, 29.41 s 6A .… 13.12, 29.42 s 6A(1)–(2) .… 29.42 s 7(1) .… 13.12, 29.41 s 7(2) .… 13.12, 29.40 Choice of Law (Limitation Periods) Act 1994 .… 16.8, 20.59 Civil Liability Act 2002 Pt 1F .… 16.32, 20.32, 20.49 s 5AB–AE .… 20.27 s 5AK(1)(a) .… 16.32, 20.32 s 5AK(3)(b) .… 16.32, 20.32 s 5B(1)(b) .… 16.31, 20.23 s 5C(1) .… 20.24 s 5C(3)(a)–(b) .… 16.23, 20.31 s 5C(4) .… 20.24 s 5K(1) .… 20.25 s 5L(1)–(3) .… 16.30, 20.30 s 5Q–T .… 20.26 s 5W .… 20.26 s 5Z .… 20.27 Commercial Arbitration Act 1985 s 22(1) .… 39.6 s 38(2) .… 17.9 s 53 .… 5.17 Corporations (Commonwealth Powers) Act 2001 .… 35.1

Corporations (Western Australia) Act 1990 .… 35.2 s 42 .… 6.12 s 44 .… 6.12 Defamation Act 2005 s 11 .… 20.16 Domicile Act 1981 .… 13.4, 13.9, 13.11, 13.12, 13.15, 13.16, 13.27 s 5 .… 13.18 s 6 .… 13.11, 13.21 s 7(2) .… 13.22 s 8(1) .… 13.12, 13.14 s 8(2) .… 13.12 s 9 .… 13.25 s 10 .… 13.9 s 11 .… 13.23 Electronic Transactions Act 2003 .… 3.62 Evidence Act 1906 .… 11.49, 17.35 s 53(1)(b) .… 17.35 s 56 .… 11.47 s 70 .… 17.11 s 71 .… 17.11 s 73A(3)(b) .… 8.54 s 97(1) .… 11.29 s 110(1)(a)–(b) .… 11.14 s 110(1)(c) .… 11.16, 11.39 s 110(2) .… 11.19 s 110(4) .… 11.23 s 110(4)(a) .… 11.22

s 110(6)(b) .… 11.21 s 110(7) .… 11.21 s 117(1) .… 11.50 s 117(3) .… 11.50 s 117(3)(b) .… 11.52 s 117(6)(a) .… 11.52 s 118(1) .… 11.51 s 121 .… 11.24 s 121(3) .… 11.30, 11.32 ss 123–130 .… 11.53 Fair Trading Act 2010 .… 3.78 s 19 .… 20.61 Family Court Act 1997 Pt 5A .… 27.35 s 36(2) .… 28.2 s 36(3) .… 28.5 s 36(4) .… 27.49, 28.5 s 69 .… 28.14 s 117 .… 27.46 s 119 .… 27.51 s 205X .… 27.36 Family Law Act 1997 s 35 .… 28.2 Fatal Accidents Act 1959 s 4 .… 20.54, 24.43 Federal Courts (State Jurisdiction) Act 1999 s 6 .… 6.2

Foreign Judgments Act 1963 .… 41.2 Guardianship and Administration Act 1990 .… 31.3 s 44A .… 31.11 s 83A–D .… 31.12 Inheritance (Family and Dependants Provision) Act 1972 .… 38.42 s 4 .… 29.1 s 6(1) .… 38.42 Interpretation Act 1984 s 13A .… 27.35 Jurisdiction of Courts (Cross-vesting) Act 1987 .… 6.1, 6.7, 6.35, 28.15 s 3(1) .… 6.11, 6.54 s 4 .… 6.54 s 4(3) .… 6.11 s 5 .… 6.51 s 5(1) .… 3.22 s 5(2) .… 3.21, 3.22, 5.19, 6.12, 6.14, 6.17, 6.18, 6.30, 6.41, 6.52 s 5(2)(i) .… 6.19, 6.24, 8.52 s 5(2)(ii) .… 6.21, 6.24, 6.26, 6.28 s 5(2)(iii) .… 6.24, 6.27–6.29, 6.32 s 5(3) .… 3.22 s 5(4) .… 6.23 s 5(7) .… 6.14 s 8(1)(b) .… 6.13 s 9 .… 6.11 s 9(b) .… 6.14 s 11 .… 6.52, 6.53, 6.56–6.58, 6.60, 6.65 s 11(1) .… 6.35

s 11(1)(a) .… 6.35, 6.36 s 11(1)(b) .… 6.35, 6.39, 6.40, 6.43 s 11(1)(c) .… 6.35, 6.49 s 13 .… 6.15, 6.16 s 13(a) .… 6.15 s 13(b) .… 6.50 s 16(4)–(5) .… 6.6, 6.7 Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 s 3 .… 20.28 s 7(1) .… 20.46 Law Reform (Miscellaneous Provisions) Act 1941 s 3 .… 20.64 s 4 .… 20.56 s 4(2) .… 20.60 Mental Health Act 1996 .… 31.3 Motor Vehicle (Third Party Insurance) Act 1943 s 7(3) .… 20.53 s 8 .… 20.53 s 15 .… 20.53 Oaths, Affidavits and Statutory Declarations Act 2005 s 7(3) .… 11.28 Property Law Act 1969 .… 3.136 s 31A .… 29.1 Restraint of Debtors Act 1984 s 17(1) .… 4.29 Rules of the Supreme Court 1971 O 10 .… 3.27, 3.36, 34.39

O 11A .… 3.26, 11.5 O 44A .… 41.8 O 10 r 1(1)(d) .… 34.39 O 10 r 1A .… 8.19, 8.20 O 10 r 4 .… 3.38 r 8(1) .… 41.8 r 10.1A(3) .… 3.27 r 11A.2 .… 3.28 r 11A.3(2) .… 3.32 r 11A.4 .… 3.31, 11.5 r 11A.4(1) .… 3.28 r 11A.5 .… 3.31, 11.5 Sale of Goods (Vienna Convention) Act 1986 .… 3.60, 19.109 Stamp Act 1921 s 27(1) .… 16.25 Supreme Court Act 1935 s 172 .… 17.7 Supreme Court Rules 1987 .… 3.132, 4.25 O 52 .… 4.17 O 10 r 1(e) .… 3.60 O 10 r 1(f) .… 3.68 O 10 r 1(1)(a)(i) .… 3.91 O 10 r 1(1)(a)(ii) .… 3.102 O 10 r 1(1)(c) .… 3.84 O 10 r 1(1)(d) .… 3.98–3.100 O 10 r 1(1)(g) .… 3.97 O 10 r 1(1)(h) .… 3.86

O 10 r 1(1)(i) .… 3.103 O 10 r 1(1)(j) .… 3.92 O 10 r 1(1)(k) .… 3.73 O 10 r 1(1)(l) .… 3.101 O 10 r 7 .… 4.2, 4.9, 11.8, 11.37 O 12 r 7 .… 3.113 O 52A r 7 .… 4.24 Surrogacy Act 2008 s 8 .… 29.45 s 19 .… 29.45 s 21 .… 29.45 Volunteers and Food and Other Donors (Protection from Liability) Act 2002 .… 20.27 Wills Act 1970 Pt IX .… 29.1 Pt VII .… 38.14 s 4 .… 38.15, 38.17 s 9 .… 38.69 s 14 .… 38.39 s 14A .… 38.40 s 20(1) .… 38.15, 38.36 s 20(2)(a)–(b) .… 38.16 s 20(2)(c) .… 38.36 s 20(2)(d) .… 38.68, 38.69 s 21(1) .… 38.18 s 21(2) .… 38.19 s 21(3) .… 38.20

s 24 .… 38.23, 38.29, 38.38 s 26(c)–(d) .… 38.71 s 32 .… 38.12 NEW ZEALAND Care of Children Act 2004 ss 81–91 .… 28.36 Commerce Act 1986 .… 41.9 Evidence Act 2006 s 164(1)–(2) .… 11.13 s 165(1)–(2) .… 11.13 Evidence Amendment Act 1994 s 16(1) .… 4.8 Fair Trading Act 1986 .… 20.63 Historic Articles Act 1962 .… 18.30 Limitation Act 1950 s 28C .… 16.8, 16.10 Marriage Act 1955 .… 24.14 Pt VII .… 25.81 Reciprocal Enforcement of Judgments Act 1934 .… 41.32 Status of Children Act 1969 .… 29.1, 29.27 UNITED KINGDOM Administration of Justice Act 1920 s 9(2)(d) .… 40.69 Arbitration Act 1950 .… 39.11 Arbitration Act 1996 s 48(4) .… 23.11

s 53 .… 43.5 Bankruptcy Act 1914 .… 36.50, 36.53 s 122 .… 36.38 Bills of Exchange Act 1882 .… 22.1, 22.4, 22.35 s 29 .… 17.43 s 30 .… 17.43 s 72 .… 1.23, 22.1 s 72(2) .… 22.21–22.23, 22.34 s 72(3) .… 22.32, 22.34 Bills of Lading Act 1855 s 1 .… 7.20 Carriage of Goods by Sea Act 1971 .… 7.42 Children Act 1989 s 8 .… 28.59 Children and Young Persons Act 1933 .… 24.47 Civil Jurisdiction and Judgments Act 1982 s 30(1) .… 3.122 s 31 .… 40.14 s 32(3) .… 40.17 s 33 .… 40.17 s 33(1) .… 40.16 s 34 .… 40.47 Civil Procedure Rules .… 40.41 Consular Marriage Act 1849 .… 25.79 ss 12–13 .… 26.77 Contracts (Applicable Law) Act 1990 .… 19.4, 19.5, 19.8 Contracts (Rights of Third Parties) Act 1999 .… 7.21

Evidence (Proceedings in Foreign Jurisdictions) Act 1975 .… 18.14 Fatal Accidents Act 1976 .… 40.49 Fertilizers and Feeding Stuffs Act 1926 s 2(2) .… 33.26 Foreign Judgments (Reciprocal Enforcement) Act 1933 .… 1.23, 41.2 s 4(1)(a)(iv) .… 40.69 Foreign Limitation Periods Act 1984 .… 16.10 Foreign Marriage Acts of 1892 to 1947 (IMP) .… 25.80 Foreign Marriages Act 1834 .… 25.81 Foreign Marriages Act 1892 .… 25.91 Insolvency Act 1986 .… 36.45, 36.50, 36.77 s 265 .… 36.61 Insolvency Rules 1986 r 6.111 .… 23.17 Investment Bank Special Administration Regulations 2011 .… 36.13 Judicature Act 1873 .… 9.2, 9.5 Legitimacy Act 1926 .… 29.18, 29.23 Legitimacy Act 1976 .… 29.39 s 3 .… 29.4 Lord Hardwicke’s Act of 1753 .… 25.8 Lord Kingsdown’s Act s 3 .… 38.29, 38.38, 38.41 Marine Insurance Act 1906 s 17 .… 8.23 Marriage (Enabling) Act 1960 s 1(3) .… 24.40 Matrimonial Causes Act 1973

s 24(1)(c) .… 34.35 s 11(d) .… 24.40 Matrimonial Proceedings (Polygamous Marriages) Act 1972 s 4 .… 24.40 Mental Capacity Act 2005 .… 31.2 National Assistance Act 1948 .… 24.47 Oaths and Evidence (Overseas Authorities and Countries) Act 1963 s 1 .… 11.15 Official Secrets Act 1911 .… 21.12 s 2 .… 18.32 Pilotage Act 1913 .… 20.37 Private International Law (Miscellaneous Provisions) Act 1995 .… 14.3 s 5 .… 24.42 s 12 .… 20.2 Protection of Trading Interests Act 1980 .… 40.96 State Immunity Act 1978 .… 10.2, 10.3 s 3(3) .… 10.20 s 16(2) .… 10.11 Statute of Frauds 1677 .… 16.24 s 1 .… 19.56 s 3 .… 19.56 s 4 .… 19.56 s 17 .… 19.56 Supreme Court Act 1981 s 37(3) .… 4.17 Third Parties (Rights against Insurers) Act 1930 .… 36.71 Variation of Trusts Act 1958

s 1 .… 34.30 Wills Act 1837 .… 38.66, 38.69 s 10 .… 38.69 s 27 .… 38.71 CANADA Canada Evidence Act 1985 s 50(1.2) .… 11.31 Civil Marriage Act 2005 .… 24.7 Criminal Code s 131(1.1) .… 11.31 CHINA Chinese Civil Code .… 17.12 General Principles of the Civil Law of the People’s Republic of China Art 146 . … 15.7 EUROPE EC Regulation 864/2007 .… 21.4 Art 14 .… 21.5 European Convention on Human Rights .… 24.14 European Union Council Regulation 44/2001 .… 1.23, 9.4, 13.2 Art 23 .… 7.42 Art 24 .… 7.42 European Union Council Regulation 1346/2000 .… 36.22 Rome I Regulation (EC) No 593/2008 .… 15.11, 16.20 Rome I Regulation (EC) No 864/2007 .… 16.20 FRANCE French Civil Code .… 8.42, 14.22, 14.28, 19.7, 27.10

French Penal Code Law No 80–538 Art 1A .… 11.25 Nouveau Code de Procédure Civile .… 8.7 GERMANY German Civil Code .… 14.29, 38.24 GREECE Act 3504 .… 14.45 ITALY Act No 218 of 31 May 1995 Art 13 .… 15.4 NETHERLANDS Marriage Law .… 24.12, 24.13 REPUBLIC OF IRELAND Family Law (Divorce) Act 1996 .… 1.6 SPAIN Spanish Civil Code .… 14.30 SWITZERLAND Code of Obligations Art 42 .… 39.20 Penal Code Art 271 .… 11.15, 11.29 INDIA Hindu Marriages Act 1955 .… 24.29, 24.31 Special Marriage Act 1954 .… 25.81 JAPAN Corporate Reorganisation Act .… 36.13

PAPUA NEW GUINEA Reciprocal Enforcement of Custody Orders Act 1978 .… 28.36 RHODESIA Marriage Act .… 24.24 UNITED STATES OF AMERICA Abrogation Act 31 USC s 5118(d)(2) .… 23.8 Bankruptcy Code .… 36.13 California Evidence Code 1070 (1995) .… 11.32 Constitution Art IV .… 2.5, 2.20, 2.23, 42.1 Art VI .… 11.7, 11.36 Defense of Marriage Act .… 2.5, 24.8, 24.11 Federal Rules of Civil Procedure .… 9.13 r 4(2)(k) .… 40.11 r B .… 4.29 Federal Trade Commission Act .… 18.34 22 Guam Code Annotated s 18305 .… 20.50 Louisiana Statutes Annotated—Revised Statutes s 22:655 .… 20.50 New York General Obligations Law s 5–1401 .… 15.13 Racketeer Influenced and Corrupt Organisations .… 7.49, 7.92 Restatement (Second) of Conflict of Laws 1971 s 8(1) .… 15.4

s 74 .… 26.47 s 187(2(a)) .… 15.13 s 187(3) .… 15.11, 15.13 Restatement (Second) of Torts 1979 s 886A(2) .… 20.47 Sherman Act .… 7.54, 9.27, 14.23, 18.21, 18.31, 40.95 Uniform Child Custody Jurisdiction Act .… 28.36 Workers’ Compensation Act of Vermont .… 2.21 INTERNATIONAL CONVENTIONS AND LAWS Agreement Between the Government of the United States of America and the Government of Australia for the Enforcement of Maintenance (Support) Obligations 2002 .… 27.53 Australia-New Zealand Agreement Child and Spousal Maintenance 2000 .… 27.25, 27.45, 27.74 Art 1.2 .… 27.50 Art 2 .… 27.45 Art 4 .… 27.45 Art 5(1)–(3) .… 27.45 Art 6(1) .… 27.45 Art 7 .… 27.74 Brussels Convention on Jurisdiction and Enforcement of Judgments 1968 Art 27(2) .… 40.13 Code of Sports Related Arbitration (CAS) .… 39.15 Art 45 .… 39.17, 39.18, 39.21 Art 58 .… 39.17 Rule 45 .… 39.16, 39.18, 39.19 Rule 58 .… 39.16 Convention on the International Regulation for Preventing Collisions at Sea

1972 .… 20.75 Convention on the Settlement of Investment Disputes between States and Nationals of other States 1965 .… 43.23 Convention relating to Bills of Lading 1924 .… 23.8 Court of Arbitration for Sports Rules Art 17 .… 39.17 EEC Convention on the Law Applicable to Contractual Obligations 1980 (Rome Convention) .… 1.23, 19.5, 19.8, 19.49 Art 1(1) .… 19.5, 19.19 Art 3(1) .… 19.5, 19.19, 19.22 Art 3(3) .… 19.39 Art 4 .… 19.35 Art 4(1) .… 19.28 Art 4(2) .… 19.38 Art 4(3) .… 19.35 Art 7 .… 19.20 Art 7(2) .… 19.49 Art 8(1) .… 19.70 Art 12 .… 33.63 Art 15 .… 19.4 Geneva Convention on the Territorial Sea and the Contiguous Zone 1958 .… 5.12 Hague Convention on Celebration and Recognition of the Validity of Marriages 1978 .… 1.6, 1.25, 24.12, 24.13, 25.1, 25.5, 25.42 Art 2 .… 25.2 Art 11 .… 25.49 Hague Convention on Choice of Court Agreements 2005 .… 1.6, 7.79 Hague Convention on Intercountry Adoption 1993 .… 13.29, 30.6, 30.7, 30.11, 30.16–30.18, 30.22 Art 6 .… 30.6

Art 14 .… 30.6 Art 15 .… 30.6, 30.17 Art 16 .… 30.6, 30.17 Art 17(c) .… 30.6 Art 23 .… 30.15 Art 44 .… 30.6 Hague Convention on Intercountry Adoption Regulations 1998 .… 30.15 r 4 .… 30.6 r 15 .… 30.6 r 16 .… 30.15, 30.21 r 18 .… 30.15, 30.21 r 34(1) .… 30.16 Sch 2 .… 30.6, 30.22 Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption of 1993 .… 1.6, 30.6 Hague Convention on Recognition of Divorces and Legal Separations of 1970 . … 1.6 Hague Convention on the Civil Aspects of International Child Abduction 1980 . … 1.6, 11.12, 13.36, 13.37, 13.39, 28.23, 28.26, 28.29, 28.37–28.51 Art 3 .… 28.52, 28.58, 28.62, 28.74 Art 3(a) .… 28.61 Art 4 .… 28.41, 28.59 Art 5 .… 28.59 Art 5(b) .… 28.81 Art 11 .… 28.49, 28.74 Art 12 .… 28.51 Art 13 .… 28.63 Art 13(b) .… 28.71

Art 16 .… 28.40 Art 19 .… 28.40 Art 20 .… 28.63 Art 21 .… 28.80, 28.83, 28.84 Art 35 .… 28.41, 28.74 s 7 .… 11.12 Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions 1961 .… 1.6, 1.25, 38.12, 38.14 Art 1 .… 15.24 Hague Convention on the International Protection of Adults 2000 .… 31.2 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance of 2007 .… 1.6, 29.35 Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary 2006 .… 1.6, 32.46, 33.39 Art 4 .… 33.39 Art 5 .… 33.39 Art 19(1) .… 32.46 Hague Convention on the Law Applicable to Maintenance Obligations 1973 Art 16 .… 15.24 Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons 1989 .… 38.67 Art 3 .… 38.1 Hague Convention on the Law Applicable to Trusts and on their Recognition 1984 .… 1.6, 34.2, 34.3, 34.6, 34.8, 34.18, 34.23, 37.28 Art 1 .… 34.4 Art 2 .… 34.5 Art 3 .… 34.6 Art 4 .… 34.8, 34.29 Art 5 .… 34.4

Art 6 .… 34.16–34.19, 34.28, 34.29, 34.40 Art 7 .… 34.19–34.21, 34.28, 34.29, 34.40 Art 8 .… 34.15, 34.24, 34.26–34.30 Art 8(h) .… 34.30 Art 9 .… 34.22, 34.25 Art 11 .… 34.40 Art 12 .… 34.40 Art 13 .… 34.17, 34.21, 34.41 Art 14 .… 34.42 Art 15 .… 34.31, 34.35 Art 15(b) .… 34.35 Art 16 .… 34.34 Art 17 .… 34.16 Art 18 .… 34.36 Art 19 .… 34.36 Art 20 .… 34.43 Art 21 .… 34.3 Art 22 .… 34.3 Ch III .… 34.40 Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations 1973 .… 1.6, 27.53 Hague Convention on the Recognition of Divorces and Legal Separations 1970 . … 1.25, 26.14 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 .… 3.26–3.30, 3.35, 3.38, 11.5, 11.7, 11.9–11.11, 11.35–11.37 O 10 .… 3.27 Art 1 .… 3.26, 3.28, 11.5

Art 2 .… 3.30 Art 5 .… 3.30, 11.5 Art 8 .… 3.32, 3.34 Art 10 .… 3.34 Art 10(a) .… 3.33, 3.34, 11.6 Art 10(b)–(c) .… 3.34, 11.6 Art 13 .… 3.30 Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters 1970 .… 1.6, 11.2, 11.5, 11.9, 11.15, 11.17, 11.18, 11.23, 11.33, 11.35, 11.36, 11.50, 18.14 Art 1 .… 11.17 Art 2 .… 11.17 Art 5 .… 11.17 Art 6 .… 11.17 Art 9 .… 11.17, 11.23 Art 10 .… 11.17 Art 11 .… 11.17, 11.33, 11.51 Art 11(b) .… 11.33 Art 13 .… 11.17 Art 23 .… 11.35, 11.36, 11.52 Art 39 .… 11.2 Hague Rules .… 1.7, 19.7, 19.41 Art 4 r 5 .… 23.8 Art 9 .… 23.8 Hague-Visby Rules .… 1.7, 7.42, 12.23, 19.40, 19.41 International Arbitration Act 1974 .… 3.52 International Monetary Agreement 1945 Art VIII s 2(b) .… 23.23

Montreal Convention of 1999 .… 1.7 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 .… 1.7, 7.3, 43.1, 43.2, 43.6, 43.8, 43.11, 43.17–43.19, 43.21, 43.22, 43.24 Art III .… 43.2 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1959 .… 1.25, 27.53, 27.75–27.77 Art V(1)(a) .… 15.18 Rotterdam Rules .… 1.7 Treaty of Rome .… 18.11 Art 85(3) .… 7.53 UNCITRAL Arbitration Rules .… 39.9 UNCITRAL Model Law on Cross-Border Insolvency 1997 .… 1.8, 16.42, 36.2, 36.11–36.45 Art 2(a) .… 36.13 Art 2(b) .… 36.36 Art 8 .… 36.18 Art 9 .… 36.12 Art 10 .… 36.12 Art 11 .… 36.12 Art 12 .… 36.12 Art 13 .… 36.12, 36.59 Art 14 .… 36.12, 36.59 Art 15 .… 36.13 Art 16(3) .… 36.19 Art 17 .… 36.12, 36.13 Art 17(i)(a) .… 36.13 Art 17(2) .… 36.18

Art 19 .… 36.12, 36.14 Art 20 .… 36.12, 36.16 Art 20(3) .… 36.16 Art 21 .… 36.4, 36.12, 36.14, 36.16, 36.23, 36.37 Art 22 .… 36.15 Art 25 .… 36.12, 36.29, 36.37, 36.39 Art 26 .… 36.12, 36.29, 36.37, 36.39 Art 27 .… 36.12, 36.29, 36.37, 36.39 Art 28 .… 36.16, 36.25, 36.26 Art 29 .… 36.12, 36.29 Art 30 .… 36.12 Ch III .… 36.13, 36.25 Preamble .… 36.11 UNCITRAL Model Law on Electronic Commerce 1996 .… 3.61 UNCITRAL Model Law on International Commercial Arbitration 1985 .… 1.25, 7.3, 7.6, 39.5, 43.1, 43.2, 43.16, 43.18, 43.21, 43.22 Art 1(2) .… 39.13, 43.17 Art 7 .… 43.19 Art 8 .… 7.6 Art 8(1) .… 7.6, 7.28 Art 8(2) .… 7.6 Art 11 .… 39.14 Art 19 .… 39.13 Art 20(1) .… 39.13 Art 20(2) .… 39.13 Art 28 .… 43.3 Art 28(1)–(2) .… 39.5, 43.3

Art 28(3) .… 39.6 Art 35 .… 43.3, 43.17 Art 35(1) .… 43.17 Art 36 .… 43.17 Art 36(1)(a)(i)–(iv) .… 43.22 Art 36(1)(b)(i)–(ii) .… 43.22 Ch VIII .… 43.2 Sch 2 .… 39.13 Sch 3 .… 7.6 UNCITRAL Model Law on International Commercial Arbitration 1998 .… 1.8 UNIDROIT Principles of International Commercial Contracts 1994 .… 12.15 United Nations Convention on Contracts for the International Sale of Goods 1980 (Vienna Sales Convention) .… 1.7, 1.25, 3.60, 19.8, 19.50, 19.92, 19.93, 19.106, 19.107 Art 1(2)–(3) .… 19.110 Art 2 .… 19.111 Art 3 .… 19.111 Art 4 .… 19.107 Art 5 .… 19.107 Art 6 .… 19.109 Art 7(2) .… 19.108 Art 10(a)–(b) .… 19.110 Art 18(2) .… 3.60 Art 23 .… 3.60 Art 24 .… 3.60 Art 79 .… 19.92, 19.113 Art 100 .… 19.112 Pt II .… 19.107

Pt III .… 19.107 Vienna Convention on Consular Relations 1963 .… 10.44, 10.45, 10.56 Art 43 .… 10.57, 10.59 Art 44 .… 10.58 Art 45(1) .… 10.65 Art 45(2) .… 10.66 Art 45(3)–(4) .… 10.67 Art 53(3)–(4) .… 10.63 Art 58(2) .… 10.59 Vienna Convention on Diplomatic Intercourse and Immunities 1961 .… 10.4, 10.44–10.46 Art 24 .… 10.49 Art 31(1) .… 10.26, 10.47 Art 31(3) .… 10.48 Art 32(1) .… 10.65 Art 32(2) .… 10.66 Art 32(3)–(4) .… 10.67 Art 37(1) .… 10.51 Art 37(2)–(3) .… 10.52 Art 38(1) .… 10.50 Art 39(2) .… 10.63 Vienna Convention on the International Sale of Goods (the CISG) see United Nations Convention on Contracts for the International Sale of Goods 1980 (Vienna Sales Convention)

Contents Preface Table of Cases Table of Statutes

Part I: General Chapter 1 Introduction to the Subject What Do We Mean by the Conflict of Laws? The Three Stages of a Conflicts Problem The Law of an Area The Law Areas of Australia The Sources of Australian Conflicts Law Chapter 2 Conflicts within Australia Introduction Can the Federal Parliament Enact Choice of Law Rules? The Effect of the Constitution — Full Faith and Credit The alternative interpretations of full faith and credit Does s 118 have any substantive effect?

Part II: Jurisdiction and Procedure Chapter 3 Jurisdiction in Personam Introduction Service Within the Jurisdiction

Service Outside the Jurisdiction, but Within Australia High Court and Federal Court State and territorial courts Service Outside Australia The Hague Service Convention When service outside Australia is permitted Submission By agreement in advance By appearing or taking steps in the proceedings By bringing action as plaintiff Foreign Land The position in New South Wales and the Australian Capital Territory Exceptions to the Moçambique rule Patents and Other Intellectual Property Rights Chapter 4 Interlocutory Relief Introduction Subpoenas and Summonses for Examination Within Australia and in New Zealand Outside Australia in countries other than New Zealand Anton Piller Orders Freezing (Mareva) Orders General principles Defendant within the jurisdiction; assets outside Australia Defendant abroad; assets within Australia Defendant and assets outside Australia Third parties Foreign Attachment

Chapter 5 Federal and Admiralty Jurisdiction The Diversity Jurisdiction of the High Court The Jurisdiction of the Federal Court Federal Jurisdiction in State Courts Jurisdiction In Rem in Admiralty Choice of Law in Federal Jurisdiction Effect of change of venue Suits by or Against the Commonwealth or a State Chapter 6 Cross-Vested Jurisdiction Constitutional Validity of the Scheme Cross-Vesting as Between States and Territories Transfer of Proceedings Under the Cross-Vesting Scheme Related proceedings: s 5(2)(i) Exercise of cross-vested jurisdiction: s 5(2)(ii) Transfer in the interests of justice: s 5(2)(iii) The Question of Onus Choice of Law in Cross-Vested Jurisdiction The three choice-of-law rules When does a court exercise cross-vested jurisdiction? Chapter 7 Forum Selection and Arbitration Agreements Introduction The existence and enforceability of the jurisdiction or arbitration agreement The agreement’s continuing efficacy Overriding effect of mandatory forum law Arbitrability The nature of the jurisdiction or arbitration agreement

Scope and construction of the jurisdiction or arbitration agreement Discretionary considerations Chapter 8 Restraint of Local Proceedings: Clearly Inappropriate Forum Introduction Development of the Forum Non Conveniens Doctrine The Voth ‘Clearly Inappropriate Forum’ Test The decision Summary and application The test reaffirmed New Zealand Foreign land: the Australian Capital Territory and New South Wales The Test in Operation Assessing the significance of the factors Availability of an adequate alternative forum The relevance of a foreign lex causae Proceedings pending elsewhere Availability of witnesses and other evidence The anchoring effect of s 18 of the Australian Consumer Law (formerly s 52 of the Trade Practices Act 1974 (Cth)) Other factors Chapter 9 Restraint of Foreign Proceedings: Anti-Suit Injunctions Introduction General Principles Injunctions to Protect the Jurisdiction of the Court and the Court’s Processes Once Set in Motion Injunctions Granted in Aid of a Legal Right Injunctions Granted to Restrain Vexatious or Oppressive Foreign Proceedings

Chapter 10 State Immunity, Act of State and Non-Justiciability Introduction Who is Entitled to Immunity? Visiting Forces Indirect Immunity Exceptions from Immunity By submission Commercial transactions Proceedings in tort, property and company law No torture exception Service of Process Enforcement Waiver Commercial property Immovable property Separate entities Diplomatic and Consular Immunity The Diplomatic Convention The Consular Convention International organisations Period of immunity Waiver of immunity Act of State and Non-Justiciability Chapter 11 Evidence From and For Other Countries Introduction The Testimony of Witnesses Introduction

Compelling the attendance of the witness by subpoena Evidence on commission before Australian-appointed examiners abroad Letters of request and the Hague Evidence Convention Audio- and video-linked testimony Documents and Discovery Compelling the production of documents by subpoena Letters of request for documentary evidence and the Hague Evidence Convention Letters of request for oral testimony supported by documentary evidence Statutory Provision for the Admission of Foreign Documents Taking Evidence for Foreign Proceedings Letters of request Audio- and video-linked testimony Prohibition on taking evidence for foreign proceedings

Part III: Choice of Law Generally Chapter 12 Choice-of-Law Theories The Theory of Vested Rights The Local Law Theory Non-conflicts How to Resolve a True Conflict According to Currie: interest analysis According to Cavers: principles of preference According to Ehrenzweig: policy analysis According to Leflar/Juenger: the ‘teleological approach’ and the ‘better law’ Choice-of-Law Technique in Australia The Objectives of Choice-of-law Rules

The reasonable expectations of the parties Uniformity of result Organic interpretation Localising laws Chapter 13 Personal Connecting Factors: Domicile, Nationality and Residence Domicile The Domicile Acts The function of domicile The area of domicile Domicile in a federation or union The three types of domicile distinguished Domicile of origin Domicile of dependence Married women Domicile of Choice Acquisition of a domicile of choice Loss of domicile of choice Persons of unsound mind Evidence of change of domicile Conflict of laws as to the acquisition of domicile Nationality Foreign nationality Residence, Ordinary Residence and Habitual Residence Chapter 14 Characterisation and the Selection of the Lex Causae Introduction The Mechanics of Resolving a Conflict Problem

The analytical approach The functional approach The Determination of the Connecting Factor Chapter 15 Renvoi and the Incidental Question Renvoi: A Conflict of Conflict Rules Neilson and the whole of the foreign law In what kinds of case does renvoi apply? Critique of the double renvoi or ‘foreign court’ theory The Incidental Question Chapter 16 Substance and Procedure Introduction Limitations in Time Within Australia and New Zealand International cases Damages and Statutory Compensation Evidence General principles The Statute of Frauds and other statutes stipulating requirements as to form Privilege Burden of Proof and Presumptions Parties to an Action Priorities and Security The Remedy Set-Off and Counterclaim The Mode of Judgment and Execution Chapter 17 The Pleading and Proof of Foreign Law

Introduction Foreign Law Must be Proved as a Fact The Manner of Proving Foreign Law Pursuant to statute By expert evidence By reference out The Effect of Evidence of Foreign Law Judicial Notice of the Law of Other Australian States and Territories The Presumption that Foreign Law is the Same as that of the Forum Limitations on the presumption Chapter 18 The Exclusion of Foreign Laws and Institutions Introduction The Refusal to Enforce Foreign Governmental Interests Revenue laws Penal laws Expropriation Other Governmental Interests Public Policy The protection of the domestic interests of Australia The protection of the external interests of Australia The protection of moral interests of universal application The Exclusion of Foreign Status and its Incidents Retrospective Laws

Part IV: Obligations Chapter 19 Contracts The Proper Law

Express selection of the proper law Choice of law by inference Where a choice of law cannot be inferred Mandatory Laws of the Forum The Creation of the Contract Capacity to enter into a contract The formalities of the contract Offer and acceptance Reality of consent Consideration The Validity, Continuance, and Effect of the Contractual Obligation The enforceability of the transaction Construction and extent of the obligation Performance The variation and extinction of obligations Remedies for breach The Vienna Convention on Contracts for the International Sale of Goods Chapter 20 Torts Introduction The Place of the Wrong Negligence Defamation Fraud, breach of confidence, breach of fiduciary duty Passing off Inducing a breach of contract Torts committed in the forum Substance, Procedure and the Civil Liability Legislation

Substantive rules Procedural rules Related Issues Contract and tort Vicarious liability Rights of recourse and contribution Wrongful death Survival of actions Proceedings under the Australian Consumer Law (Cth) Family torts Pleading and the onus of proof Torts Committed on the Sea or in the Air Chapter 21 Restitutionary Claims and Equitable Obligations Introduction Restitution Equitable obligations Chapter 22 Negotiable Instruments Introduction One law or several? Negotiability in Australia Capacity Under the Bills of Exchange Act 1909 (Cth) Under the Cheques Act 1986 (Cth) Law of the place where the contract is made Formal Validity Under the Bills of Exchange Act 1909 (Cth)

Under the Cheques Act 1986 (Cth) Stamp duty Australian dealings with foreign bills and cheques Interpretation and Effect Under the Bills of Exchange Act 1909 (Cth) Under the Cheques Act 1986 (Cth) Assignment Under the Bills of Exchange Act 1909 (Cth) Under the Cheques Act 1986 (Cth) Performance and Discharge Under the Bills of Exchange Act 1909 (Cth) Under the Cheques Act 1986 (Cth) Presentment, Protest and Notice of Dishonour Under the Bills of Exchange Act 1909 (Cth) Under the Cheques Act 1986 (Cth) Other Negotiable Instruments Chapter 23 International Monetary Obligations Introduction The Determination of the Money of Account The Role of the Law of the Currency Protective Clauses The Money of Payment The Currency of the Judgment The Date of Conversion Enforcement of a Judgment in Foreign Currency Currency Trading

Part V: Family Law Chapter 24 The Meaning of Marriage The Definition of Marriage Union Between Persons of Opposite Sex: Same-Sex and Transgender Marriages The standing of same-sex and transgender marriages in Australia No Potential for an Additional Spouse: Polygamous Marriages The nature of polygamous marriage What law determines the nature of the marriage? The time at which the nature of the marriage is determined Capacity to enter into a polygamous marriage The standing of a polygamous marriage in Australia Polygamy and matrimonial relief Unlimited in Duration Chapter 25 The Creation of a Valid Marriage Marriages Celebrated Abroad Recognition at Common Law Formal and essential validity Formal validity: the lex loci celebrationis and exceptions Essential validity: capacity and consent Public policy Recognition Under the Convention The basic rule Application of and exceptions to the basic rule Bigamy Prohibited relationship Marriageable age

Consent Voidable marriages Public policy Proof of overseas marriage Marriages in Australia Involving Foreign Parties Diplomatic Marriages Within Australia In a foreign country under Australian law In a foreign country pursuant to foreign law Chapter 26 Principal Relief: Dissolution, Annulment, Declarations and Legal Separation Jurisdiction Divorce Annulment and declarations Legal separations General Declining jurisdiction — clearly inappropriate forum Choice of Law Divorce Annulment and declarations Legal separations Recognition Ordinary residence Domicile Nationality Applicant or respondent? Effected in Accordance with the Law of an Overseas Country

Definition of annulment Recognition at Common Law Divorces Annulment Legal separations The Time Factor Onus of Proof Circumstances in Which Recognition Will be Refused for Reasons Other than Lack of Jurisdiction Denial of natural justice Public policy Prohibition Against Remarriage After Divorce Chapter 27 Matrimonial Property and Financial Relief Introduction Matrimonial Property The Creation of the Matrimonial Property Relationship Movables The effect of a change of matrimonial domicile Immovables Property Division on Marriage Breakdown Jurisdiction Extra-territorial jurisdiction Declining jurisdiction — forum non conveniens Anti-suit injunctions Choice of law Recognition De Facto and Same-sex Relationships

Maintenance Spousal maintenance Child support Child maintenance International Recognition and Enforcement of Maintenance Liabilities General Maintenance orders registered before 1 July 2000 Enforcement of overseas maintenance liabilities under the Child Support (Registration and Collection) Act 1988 (Cth) Enforcement of Australian maintenance liabilities overseas Proceedings under the Family Law Regulations Pt III Div 2 Enforcement of New Zealand maintenance and support decisions Enforcement under the New York Convention Conversion of currency Chapter 28 The Welfare of Children Jurisdiction By statute At common law Discretion to decline jurisdiction Choice of Law International Abduction or Retention The common law principles Family Law Act 1975 (Cth) ss 70G–70J The Hague Convention Application of the Convention Wrongful removal or retention Grounds for refusal to return child

Residual discretion The imposition of conditions on return Access Foreign Guardianship Orders 685 Chapter 29 The Status of Children Introduction Legitimacy Legitimacy at common law The common law conflicts rules Removal of distinction of ex-nuptial children Legitimation Legitimation under Australian law Legitimation under foreign law Jurisdiction to Make a Declaration of Legitimacy Parentage Proof of parenthood The parentage of children conceived by artificial insemination or in vitro fertilisation Chapter 30 Adoption Introduction Jurisdiction Choice of Law Recognition of Interstate and Foreign Adoptions Adoptions in Australia Countries party to the Hague Convention on Intercountry Adoption Adoption by same-sex couples under the Hague Convention on Intercountry Adoption

Countries with which Australia has a bilateral agreement on intercountry adoption Other countries Declarations as to validity Chapter 31 Mental Incapacity Jurisdiction in the Care and Control of the Mentally Ill and Incapable At common law Under statute Choice of law The Effect of Foreign Orders Within the Forum

Part VI: Property Chapter 32 Property: Preliminary Matters The Distinction Between Movables and Immovables The Situs of Property In general Interests in land Interests in tangible goods Choses in action Negotiable instruments Shares in companies Chapter 33 Transactions Between Living Persons General Principles The distinction between contract and assignment Immovables Capacity to convey an immovable Chattels

The rise of the lex situs Gifts Retention of title clauses Rights embodied in a document The effect of a change of situs Intangibles From lex domicilii to lex situs to lex loci actus The present state of authority Capacity to assign Assignability Priorities Chapter 34 Trusts Introduction The Hague Trusts Convention The Assignment By inter vivos transaction By testamentary disposition The Validity and Administration of the Trust The proper law of the trust Scope of the proper law Mandatory laws Jurisdiction Recognition of Trusts Trusts Created by Operation of Law

Part VII: Corporations and Insolvency Chapter 35 Corporations

Introduction Jurisdiction Service Recognition Place of Incorporation Powers and Functions of Corporations Obligations of Directors of Corporations Derivative Actions Dissolution and Amalgamation of Companies Chapter 36 Bankruptcy and Corporate Insolvency Introduction Effect of Foreign Bankruptcy and Insolvency: General Principles The effect of a discharge under foreign law The Model Law Purpose and key features Foreign main proceeding Concurrent bankruptcy and insolvency proceedings International judicial co-operation in bankruptcy and insolvency Australian Bankruptcy Proceedings With a Foreign Element Effect of Australian bankruptcy Administration in bankruptcy Discharge Winding Up of Companies in Australia

Part VIII: Devolution on Death Chapter 37 Administration of Deceased Estates Jurisdiction to Grant Probate or Letters of Administration

The standing of a foreign executor within the forum Who may apply for a grant of representation? The title of the grantee Administration Jurisdiction Choice of law Chapter 38 Succession Introduction Jurisdiction Intestate Succession Movables Immovables Wills Capacity Formal validity Construction Essential validity Revocation Family Provision Legislation Election Powers of Appointment Capacity Formal validity Construction Essential validity Revocation

Part IX: Arbitration Chapter 39 Choice of Law in Arbitration Introduction The Validity and Effect of the Arbitration Agreement The Substantive Rules to be Applied by the Tribunal The Law Governing Procedure (the Curial Law) Choice of Law in Sporting Arbitrations

Part X: Recognition and Enforcement of Foreign Judgments and Awards Chapter 40 Recognition and Enforcement of Foreign Judgments at Common Law Introduction The Jurisdiction of Foreign Courts Presence or residence of the defendant Voluntary submission by the defendant Suggested additional and alternative bases for jurisdiction Judgments in rem The Judgment Must be Final and Conclusive The Identity of the Parties What Judgments Can Be Enforced? The Effect of a Foreign Judgment Enforcement By way of defence, cause of action estoppel, issue estoppel or Anshun estoppel Can a judgment that is defective under its own law have international validity? Defences to Enforcement

That the foreign judgment was obtained by fraud That the foreign judgment is contrary to public policy That the foreign court acted contrary to natural justice That the foreign judgment is penal or a judgment for a revenue debt That the foreign court acted perversely in refusing to apply the appropriate law That the party seeking enforcement or recognition is estopped from relying on the foreign judgment by reason of estoppel arising out of a prior judgment within the forum between the same parties and concerning the same issue or issues The Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth) Chapter 41 Enforcement of Foreign Judgments by Statute Introduction The Courts to Which the Act Extends What Judgments can be Registered When Registration Must be Set Aside The Jurisdiction of the Foreign Court Effect of Registration New Zealand Judgments Chapter 42 Enforcement of Judgments Within Australia Introduction Part 6 of the Service and Execution of Process Act 1992 (Cth) Scope of Part 6 The registration of judgments under Part 6 Challenge to registered judgment Effect of registration Full Faith and Credit

Chapter 43 Enforcement of Foreign Arbitral Awards Introduction Enforcement Under the 1958 New York Convention: Part II of the International Arbitration Act 1974 (Cth) Enforcement Under the Model Law: Part III of the International Arbitration Act 1974 (Cth) Enforcement of ICSID Awards: Part IV of the International Arbitration Act 1974 (Cth) Index

[page 1]

PART I

General Chapters 1

Introduction to the Subject

2

Conflicts within Australia

[page 3]

Chapter 1

Introduction to the Subject What Do We Mean by the Conflict of Laws? 1.1 The majority of cases that are litigated in our courts are domestic in character. In such cases all relevant facts have occurred within the territory over which the court has jurisdiction and the parties to the litigation are normally resident there. Consequently, there is no question of the court applying any law other than that of the legal system to which it belongs. Even where a case does have foreign connections, it is frequently treated as a domestic case through the failure of counsel, often for sound tactical reasons, to plead foreign law. 1.2 At other times, however, a party raises a prima facie case of conflict by asking the court to apply a foreign law. For instance, in Perrett v Robinson,1 the plaintiff, Mr Perrett, was injured in a motor accident on 5 July 1979 near Mataranka in the Northern Territory. He was resident in the Territory and was driving a car registered there. The car he collided with was registered in Queensland and covered by an insurance policy issued in accordance with the Motor Vehicle Insurance Act 1936 (Qld). It was driven by the defendant, Mr Robinson, who also lived in the Territory. The defendant admitted that the injuries the plaintiff had suffered were the result of his negligence. The plaintiff brought action in the Supreme Court of Queensland. The reason why he preferred to sue in Queensland was obvious: in 1979 the Northern Territory had introduced with the Motor Accidents (Compensation) Act 1979 (NT), a no-fault compensation scheme in relation to motor vehicle accidents. To make this effective, it had abolished in s 5(1) the common law right of plaintiffs who were residents of the Territory to sue in the Territory for damages for personal injuries suffered as a result of a motor accident occurring within the Territory. In lieu thereof persons injured in such accidents are entitled to receive under s 13 periodic benefits while their earning

capacity is impaired, and pursuant to s 17 compensation according to a scale for defined physical disabilities. In Queensland the common law remained in force. Hence, since the defendant had admitted negligence, the plaintiff could, if the accident had occurred in that state, have recovered a lump sum amount comprising compensation for loss of future earnings as well as for pain and suffering. There is little doubt that to a plaintiff, [page 4] a traditional common law recovery affords greater advantages than a no-fault scheme that seeks to limit the amount recoverable. By the same token, the defendant, or rather his insurance company, stood to gain by referring the plaintiff back to the law of the Territory. 1.3 The case illustrates how and why a conflict of laws can arise. Queensland was the jurisdiction in which the proceedings were brought by the plaintiff, or as conflict lawyers call it, the forum. The plaintiff selected that forum because he wanted its law (the lex fori) to apply. The Northern Territory was the place where the wrong had occurred, or as conflict lawyers call it, the locus delicti. The defendant’s insurers wanted its law (the lex loci delicti) to be applied because it would relieve them of a substantial part of their liability. Ultimately, the High Court had to resolve that conflict by a determination, or choice, as to which law should prevail. It decided the issue in favour of the lex loci delicti, thereby ensuring that the plaintiff gained no benefit by bringing action outside the Northern Territory, a tactic sometimes described as ‘forum shopping’.2 This process is of the essence in the conflict of laws. As its title indicates, the subject is concerned with resolving the conflicts that arise because of the interaction between different legal systems. The title is not altogether satisfactory. While it is true that the resolution of conflicts between laws is the most dramatic aspect of the subject, there are other issues, such as jurisdictional questions, which do not necessarily arise out of conflicts between laws, and yet indisputably form an increasingly important part of the subject. 1.4 An alternative title frequently used is ‘Private International Law’. This title too has its dangers. It is often confused with public international law. Although the conflict of laws, or private international law, was once regarded together with

public international law as a branch of a general subject known as ‘International Law’, today the two subjects are considered to be different in both origin and extent. Public international law is a supranational law that exists independently of the legal systems and legislatures of each nation. Although some of its principles can become part of the municipal law of individual countries, it can be altered only by international convention or by tacit agreement between nations. Furthermore, it is concerned mainly with relations between sovereign nations. In contrast, the conflict of laws, or private international law, is part of the municipal or domestic national law of each country (or law area within a country, in the case of federations) and subject to unilateral changes by its legislature. Choice-of-law rules vary between countries, giving rise to the difficult theoretical problems known as ‘classification’3 and renvoi.4 The subject deals mainly with relations between private citizens and organisations. Admittedly, sometimes the two subjects overlap where [page 5] governmental action affects the rights of private citizens, as is the case with sovereign and diplomatic immunity,5 and the expropriation of private property.6 1.5 Obviously the fact that legal systems have divergent ways of dealing with given situations, including the resolution of conflicts of law, can cause problems in areas such as marriage and divorce and in international trade. It is clearly undesirable that a person be treated as married to one person by the courts of the Irish Republic and to another by the courts of Australia. It is equally undesirable that an Australian court should refuse to enforce a contract that was validly entered into according to the law of Japan. 1.6 There are three methods by which such conflicts can be reduced. The first is by countries agreeing on uniform conflicts rules. In some ways, this is the easiest to achieve because it does not require any country to surrender a fundamental domestic policy such as the former refusal of the Irish Republic to grant divorces.7 Countries are not forced to make their domestic law conform to some internationally-agreed norm but are merely required to unify the conflict of laws rules that will be applied in their courts. The main agency in this area is the Hague Conference on Private International Law, of which Australia is a member. The conference has produced a large number of draft conventions, several of which Australia has ratified. They include:

Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions of 1961; Convention on Recognition of Divorces and Legal Separations of 1970; Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 1970; Convention on the Recognition and Enforcement of Decisions relating to Maintenance Obligations of 1973; Convention on Celebration and Recognition of the Validity of Marriages of 1978; Convention on the Civil Aspects of International Child Abduction of 1980; Convention on the Law Applicable to Trusts and on their Recognition of 1985; Convention on Protection of Children and Co-operation in respect of Intercountry Adoption of 1993; Convention on Choice of Court Agreements of 2005; Convention on the Law Applicable to Certain Rights in Respect of Securities held with an Intermediary of 2006; and Convention on the International Recovery of Child Support and Other Forms of Family Maintenance of 2007. 1.7 A more ambitious method of avoiding conflicts is through international conventions, which seek to unify the substantive law of different countries by regulating relationships between private citizens and organisations. This is the function of such bodies as the International Institute for the Unification of Private Law at Rome [page 6] (UNIDROIT) and the United Nations Commission for International Trade Law (UNCITRAL). Australia is a member of each of these organisations. Some progress towards unification has been made in relation to arbitration, international transport and sale of goods. Notable examples are the Hague, Hague-Visby, Hamburg and Rotterdam Rules governing the conditions for the

carriage of goods by sea;8 the Montreal Convention of 1999 governing the carriage of goods and passengers by air;9 the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958;10 and the 1980 Vienna Convention on the International Sale of Goods (known as the CISG).11 Australia is a party to each of those conventions.12 The law that conventions such as these create is both international and private in the true sense of those words. Because it is an international law that transcends municipal legal systems, it is often referred to as ‘transnational law’. To the extent that it succeeds, it will supersede the conflict of laws. 1.8 Many international conventions have been drafted and signed but have never come into force because they have not been adopted by the requisite number of countries. Unification of domestic laws by international convention is largely a ‘package deal’. If a country contemplating adoption regards any one of the provisions of the convention to be contrary to values it holds dear, it will not adopt the convention unless it is permitted to make a reservation on the issue in question. Reservations modify the ‘all or nothing’ nature of international conventions to some extent by permitting an adopting country to state that it will not apply the convention’s provisions on specified subjects. Nevertheless, the relatively inflexible nature of international conventions has led to increasing use of a more flexible instrument of international unification, the model law. As their name suggests, model laws are designed to be a model for domestic legislation, rather than a package of rules that must all be applied in the adopting country. If a country finds the whole of a model law acceptable, it can simply give the model law the force of law by domestic legislation, as Australia did with the UNCITRAL Model Law on International Commercial Arbitration 199813 and the UNCITRAL Model Law on Cross Border Insolvency 1997.14 Alternatively, a country can implement parts of a model law in its domestic legislation without adopting it in toto, as Australia did with the UNCITRAL Model Law on Electronic Commerce 1996.15 [page 7]

The Three Stages of a Conflicts Problem 1.9 In Perrett v Robinson (see 1.2) the main point at issue concerned the resolution of the conflict between the laws of Queensland and the Northern

Territory. But this was not the only problem the legal advisers of the parties had to consider. 1.10 The first problem that the solicitors for the plaintiff had to consider was that of jurisdiction. Both parties were residents of the Northern Territory. The Supreme Court of Queensland is a court of unlimited jurisdiction within the territory of the State of Queensland. But it is not a court of unlimited jurisdiction in the sense that it can summon any person anywhere in the world to appear before it. Some degree of connection between the subject matter and Queensland or between the parties involved and Queensland must be established before the court can hear the matter. In Perrett v Robinson the problem of jurisdiction was solved by the defendant travelling to Mt Isa in Queensland for the sole purpose of being served with the Queensland writ. That stratagem was held to be effective to attract the jurisdiction of the Queensland court in Perrett v Robinson.16 But for this obliging gesture the plaintiff would have found it difficult under the law as it then stood17 to persuade the Supreme Court of Queensland to assume jurisdiction and the conflict of laws problem could not have arisen. 1.11 Hence, only after the issue of jurisdiction has been resolved does the court need to consider the question of the applicable law. In Perrett’s case, this was the question of whether the law of Queensland or that of the Northern Territory should be applied. The court must make a choice between the two legal systems and consequently this stage is referred to as the choice-of-law question. 1.12 Finally, a third type of question could have arisen. If the plaintiff had been allowed to proceed with his claim for damages according to Queensland law, he might have recovered a verdict for an amount far in excess of what Northern Territory law would have given him. But the defendant lived in the Northern Territory and, it may be assumed, did not have any assets in Queensland. Leaving aside the question of direct recourse against the insurer, the plaintiff would, in the case of an uncooperative defendant, have to ask the Northern Territory courts to enforce the Queensland judgment. A judgment of the Supreme Court of Queensland is not by its own force operative in the Northern Territory, unless the Northern Territory court is prepared to recognise and enforce it. Australian courts will, in principle, recognise the judgments of other jurisdictions, be they Australian or foreign. Indeed, they are under constitutional and statutory obligations to recognise the former.18 But they will not enforce every document that bears the seal of a foreign court. Some foreign courts may have jurisdictional standards which our courts consider to be too wide. Other

courts may not observe the minimum standards of fairness that [page 8] our courts insist upon. Hence, the third stage of the problem, namely that of the recognition and enforcement of foreign judgments.19

The Law of an Area 1.13 As stated earlier, the subject known as conflict of laws is concerned with the resolution of conflicts between legal systems. Traditionally, a legal system has been associated with a particular territory. Thus, we speak of the law of England and Wales, of New Zealand and of New South Wales. Each of them constitutes a separate law area or ‘country’. The territorial connection is important since under traditional choice of law rules the determination of which law shall prevail is normally made according to a geographical connection: in the case of personal status by reference to the place where the person lives or has lived at the relevant time; in the case of the effect of a transaction by reference to the place where that transaction occurred. 1.14 The assumption that a legal system is coincidental with a particular territory is not always true. In early medieval Europe, as in many African and Asian countries today, law was seen as a personal rather than a territorial relationship. The connection with a particular legal system would depend on such indicators as membership of a tribe, a religion or even race. Thus, in those areas where personal legal systems still exist, conflicts of law may arise within the same law area. Such conflicts can only be solved by standards no longer sustainable in the modern world; for example, by assuming the superiority of one legal system, or one sex, or of a particular group or race, or even by prohibiting the creation of legal relationships between members of different religions or races.20 1.15 In Western Europe, however, the rise of the modern secular state, based as it is on notions of the equality in law of all citizens and the absolute territorial sovereignty over the national domain, had by the nineteenth century eliminated all traces of earlier personal laws.21 The same influence has been at work in the rest of the world. In some countries, such as Turkey, it has led to the abolition of personal laws and the imposition of one code of law for all citizens. In other

countries, such as Egypt and India, personal laws still exist but they are considered as existing by virtue of, and subject to, the will of the national legislature. Thus, one can say that Muslim law operates in India as part of the law of India applicable to Muslims and subject to the will of the Indian Parliament, which can alter or even abolish it, even though the same customs are also observed in Pakistan by virtue of the law of Pakistan.22 [page 9] 1.16 A ‘law area’ can therefore be defined as a territory that has a unitary system of law. A ‘unitary system of law’ was defined by Deane J in Breavington v Godleman23 as a system in which ‘the substantive rule or rules applicable to determine the lawfulness and the legal consequences or attributes of conduct, property or status at a particular time in a particular part of the national territory will be the same regardless of whereabouts in that territory questions concerning those matters or their legal consequences may arise’. This definition permits variations of law within the same territory depending on factors such as race, religion or locality. But the system itself defines the circumstances in which such rules shall or shall not apply, thus avoiding conflict. 1.17 A political entity with a unitary constitution, like New Zealand, is clearly a law area in this sense. It has a unitary system of law even though it may prescribe special rules for particular groups such as the Maori. A federal state like Australia, Canada or the United States, on the other hand, consists of several law areas, each with its own legislature and consequently with its own legal system.

The Law Areas of Australia 1.18 Australia is a federation consisting of six constituent states,24 two selfgoverning internal territories,25 one internal non-self-governing territory26 and seven external territories of which only three are inhabited.27 In respect of matters governed by state or territorial law, each state and territory in Australia is a distinct law area.28 As Brennan, Dawson, Toohey and McHugh JJ observed in McKain v R W Miller & Co (SA) Pty Ltd:29 To describe the States, as Windeyer J once described them, as ‘separate countries in private international law’[30] may sound anachronistic. Yet it is of the nature of the federation created by the

Constitution that the States be distinct law areas whose laws may govern any subject matter subject to constitutional restrictions and qualifications. The laws of the States, though recognized throughout Australia, are therefore capable of creating disparities in the legal consequences attached in the respective States to the same set of facts unless a valid law of the Commonwealth overrides the relevant State laws and prescribes a uniform legal consequence. That may or may not be thought to be desirable, but it is the hallmark of a federation as distinct from a union.

[page 10] 1.19 Where the law is unified at the federal level, as in the case of bills of exchange, cheques, marriage, matrimonial causes and bankruptcy,31 the Commonwealth of Australia constitutes one law area.32 The Corporations Act 2001 (Cth)33 and the Australian Consumer Law (Cth) operate as one unit of law and jurisdiction throughout Australia. The High Court has often said that, unlike the position in other federations such as the United States, there is only one common law in Australia.34 Thus, to the extent that rights and obligations derive from the common law, rather than from statute, Australia is a single law area.35 1.20 Following the enactment of the Territories (Law Reform) Act 1992 (Cth), the inhabited parts of Australia consist effectively of nine law areas. They are: the Australian Capital Territory which, in the absence of specific provision made to the contrary,36 has the application of its laws and the jurisdiction of its courts extended to the Jervis Bay Territory;37 New South Wales; Norfolk Island; the Northern Territory; Queensland; South Australia; Tasmania; Victoria; and Western Australia which, in the absence of specific provision made to the contrary,38 has the application of its laws and the jurisdiction of its courts extended to the Territories of Christmas Island and the Cocos (Keeling) Islands.39 Federal law extends to Christmas Island and the Cocos (Keeling) Islands unless specified to the contrary;40 as regards the self-governing Territory of Norfolk Island the reverse applies.41 1.21 Unlike Canada, where the province of Quebec adheres to the civil law tradition, all Australian states inherited the same English common law. Unlike the United States, where different interpretations of the common law can and do arise, the High Court of Australia is the final arbiter of any differences in interpretation between state courts.42 Conflicts between Australian law areas arise as the result of legislative intervention: either two statutory provisions in different states conflict

[page 11] with each other, or statutory reform in one state clashes with the unreformed common law of the other.43

The Sources of Australian Conflicts Law 1.22 The common law rules presently applied by Australian courts have their origin in rules developed by English judges in the nineteenth century. Those principles were adapted by Australian courts to local circumstances by substituting ‘Victoria’ or ‘New South Wales’, or whichever other Australian jurisdiction was the forum, for ‘England’.44 Although the process of adaptation of English decisions has not ceased altogether, it can no longer be assumed that modern English interpretations of conflicts law will be followed in Australia, particularly as the English conflict of laws is now so heavily influenced by regulations and directives of the European Union, which have largely replaced the traditional common law conflict of laws.45 Indeed, given the increasing influence of European law in the United Kingdom, Australia is now one of the last outposts of the traditional common law conflict of laws tradition. 1.23 The conflict of laws is still largely the product of judge-made law. Because of the supervisory role of the High Court of Australia, those rules are uniform throughout Australia. When England began to reform parts of it by statute, the Australian legislatures frequently copied the legislation, though not always verbatim.46 More recently, however, the English conflict of laws has been substantially affected by conventions entered into by the United Kingdom as a member of the European Union and European Economic Area.47 This development, together with a reluctance to embrace more recent decisions of the House of Lords, has meant that Australia remains faithful to an earlier version of English law. 1.24 The copying by the drafters of the Australian Constitution of the federal aspects of the United States Constitution has meant that Australian conflict lawyers became familiar with notions such as Full Faith and Credit48 and diversity jurisdiction.49 But the High Court has been reluctant to accept American case law and has preferred to give its own interpretation to the borrowed provisions.50

[page 12] 1.25 As mentioned in 1.7, another growing source of conflicts law is the adoption of international conventions. With very few exceptions,51 this has been done through federal legislation.52 1.26 The main indigenous contribution to the conflict of laws is in the federal area. The cross-vesting legislation53 largely overcame conflicts between federal and state jurisdiction. Although it was dealt a body blow by the High Court’s decision in Re Wakim; Ex parte McNally,54 which held that parts of the legislation were unconstitutional, much of the scheme survived55 and it continues to assist courts in operating across the jurisdictional lines that exist between law areas within Australia. The Service and Execution of Process Act 1992 (Cth) has created one Australian unit for the service of process and the enforcement of judgments of state and territorial courts.56 _________________________ 1.

(1986) 169 CLR 172. See also its companion case: Breavington v Godleman (1988) 169 CLR 41.

2.

As to which, see generally, Bell, Forum Shopping and Venue in Transnational Litigation, Oxford University Press, Oxford, 2003.

3.

See Chapter 14 below.

4.

See Chapter 15 below.

5.

See Chapter 10 below.

6.

See Chapter 18 below.

7.

The Republic of Ireland finally legalised divorce after approval for a constitutional amendment was given by a very narrow majority in a referendum in November 1995. The implementing legislation, the Family Law (Divorce) Act 1996, came into force on 27 February 1997.

8.

See the Carriage of Goods by Sea Act 1991 (Cth), Schs 1, 1A, 2.

9.

See the Civil Aviation (Carriers’ Liability) Act 1959 (Cth), Sch 1A.

10. See the International Arbitration Act 1974 (Cth), Sch 1. 11. See Chapter 19 below. 12. Australia has enacted, but not implemented, legislation to give effect to the Hamburg Rules. Australia has not ratified the Convention in which the Hamburg Rules are contained. 13. International Arbitration Act 1974 (Cth), Sch 2. 14. Cross Border Insolvency Act 2008 (Cth). 15. Electronic Commerce Act 1999 (Cth). 16. [1985] 1 Qd R 83. 17. As from 10 April 1993, a writ issued out of any Australian court can be served under the Service and Execution of Process Act 1992 (Cth) s 15(1) on a defendant anywhere in Australia without requiring a

connection or nexus with the place of issue: see Chapter 3 below. 18. See Chapter 43 below. 19. See Chapters 41 and 42 below. 20. This is the so-called ‘law of interpersonal conflicts’. See on this point, Bartholomew, ‘Private Interpersonal Law’ (1952) 1 ICLQ 325; Gouwgioksiong, ‘Interpersonal Law in Indonesia’ (1965) 29 RabelsZ 545; Lipstein & Szazy, ‘Interpersonal Conflict of Laws’ in, Lipstein, K (ed) International Encyclopedia of Comparative Law (1985) 3(10) 3-35. 21. For survival of such personal laws in England as late as the eighteenth century, see Lindo v Belisario (1795) 1 Hag Con 216; 161 ER 530. 22. See Casdagli v Casdagli [1919] AC 145. 23. (1988) 169 CLR 41 at 121. 24. New South Wales (including Lord Howe Island), Queensland, South Australia, Tasmania (including Macquarie Island), Victoria and Western Australia. 25. Australian Capital Territory and Northern Territory. 26. Jervis Bay Territory. 27. The external territories lie outside the area occupied by the six federating colonies in 1900. They are: Ashmore and Cartier Islands; Australian Antarctic Territory; Christmas Island; Cocos (Keeling) Islands; Coral Sea Territory; McDonald Islands and Heard Island; and Norfolk Island. Only Christmas Island, the Cocos (Keeling) Islands and Norfolk Island have a permanent population. 28. See note 27 above. 29. (1991) 174 CLR 1 at 36; 104 ALR 257 at 274 per Brennan, Dawson, Toohey and McHugh JJ. 30. Pedersen v Young (1964) 110 CLR 162 at 170. 31. Bills of Exchange Act 1909 (Cth); Cheques Act 1986 (Cth); Marriage Act 1961 (Cth); Family Law Act 1975 (Cth); Bankruptcy Act 1966 (Cth). 32. Lloyd v Lloyd [1962] VR 70 at 71 per Barry J. 33. See Chapter 37 below. 34. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 15; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 556; Lange v Australian Broadcasting Corp (1997) 189 CLR 520 at 566; Lipohar v R (1999) 200 CLR 485 at 505, 509–10, 552; 168 ALR 8 at 18, 22, 56; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 517–18; 172 ALR 625 at 630; Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at 81. 35. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 517–18; 172 ALR 625 at 630–1, at [15]–[18]. 36. Jervis Bay Territory Acceptance Act 1915 (Cth) s 4F allows the Governor-General to make laws specifically for the Jervis Bay Territory. 37. Jervis Bay Territory Acceptance Act 1915 (Cth) ss 4A(1), 4D. 38. Cocos (Keeling) Islands Act 1955 (Cth) s 8A(2); and Christmas Island Act 1958 (Cth) s 8A(2) provide for the amendment or repeal of a Western Australian law applying to that territory by federal Ordinance. 39. Cocos (Keeling) Islands Act 1955 (Cth) ss 8A(1), 15AAB(1); Christmas Island Act 1958 (Cth) ss 8A(1), 14B(1). 40. Cocos (Keeling) Islands Act 1955 (Cth) s 8E(1); Christmas Island Act 1958 (Cth) s 8E(1); Acts Interpretation Act 1901 (Cth) s 17(a).

41. Norfolk Island Act 1979 (Cth) s 18; Acts Interpretation Act 1901 (Cth) s 17(a). 42. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562–3; 145 ALR 96 at 108. 43. See ALRC Report No 58, Choice of Law, 1992, para 5.2. 44. For example, in Koop v Bebb (1951) 84 CLR 629 (restating the rule in Phillips v Eyre (1870). LR 6 QB 1); Laurie v Carroll (1958) 98 CLR 310 (restating English common law jurisdiction rules in Australian terms). 45. Thus, in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 the majority of the High Court refused to follow the House of Lords in Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460. 46. See, for example, Bills of Exchange Act 1909 (Cth) ss 77, 77A, modelled on Bills of Exchange Act 1882 (United Kingdom) s 72; and the Foreign Judgments Act 1991 (Cth) which is modelled on the Foreign Judgments (Reciprocal Enforcement) Act 1933 (United Kingdom). 47. For example, EC Regulation 44/2001 and the Rome Convention on the Law Applicable to Contracts 1980. 48. See Chapter 2 below. 49. See Chapter 5 below. 50. Breavington v Godleman (1988) 169 CLR 41 at 82, 83 per Mason CJ; McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 34–7 per Brennan, Dawson, Toohey and McHugh JJ. 51. The Convention on the International Sale of Goods (the CISG) was implemented by state and territorial legislation (see Ch 19 below), as was the Hague Convention on the Conflicts of Law Relating to the Form of Testamentary Dispositions: see Chapter 39 below. 52. See, for example, Marriage Act 1961 (Cth) Pt V implementing the Hague Convention on Celebration and Recognition of the Validity of Marriages 1978; International Arbitration Act 1974 (Cth) implementing the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 and the UNCITRAL Model Law on International Commercial Arbitration 1985; Family Law Act 1975 (Cth) s 104 implementing the Hague Convention on the Recognition of Divorces and Legal Separations 1970; Trusts (Hague Convention) Act 1991 (Cth). 53. See Chapter 6 below. 54. (1999) 198 CLR 511; 163 ALR 270. 55. See 6.8 below. 56. See Chapter 3 below.

[page 13]

Chapter 2

Conflicts within Australia Introduction 2.1 As the previous chapter has indicated, conflicts can arise between the laws of the various states and territories of Australia because of the constitutional competence of state legislatures to enact laws having legal consequences for persons or conduct in another state, provided only that there is a real connection between the subject matter of the law and the state in which the law is enacted.1 Some matters (such as matrimonial causes, marriage law and bankruptcy) are governed by federal law and Australia for those purposes is to be considered a single ‘law area’. The same conclusion follows when a court is exercising federal jurisdiction, in which case, by virtue of the operation of s 80 of the Judiciary Act 1903 (Cth), ‘no direct choice between laws of competing States’ is presented.2 This is because, in federal jurisdiction and by virtue of s 80 of the Judiciary Act 1903, state laws apply as federal laws.3 Even in this context, there may be scope for a clash between multiple applicable surrogate federal laws.4 But most laws which regulate the relationship between citizens are within the responsibility of the state and territory legislatures. Therefore, for those purposes, Australia is not one ‘law area’, but consists of nine separate ‘law areas’.5 [page 14] 2.2 Although a majority of the High Court in Breavington v Godleman6 favoured a ‘one nation’ approach which distinguishes between domestic and international conflicts, whether constitutionally mandated or not, a newly constituted majority of the High Court in McKain v RW Miller & Co (SA) Pty

Ltd 7 reasserted the traditional view that the common law rules of choice of law are not displaced by the Constitution or the fact of federation. In John Pfeiffer Pty Ltd v Rogerson,8 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ expanded on this proposition, saying: [W]hile the phrases ‘law area’ and ‘lex fori’, adapted from the lexicon of private international law, may be used to identify each of the States and Territories which comprise the geographical area of Australia, these expressions are to be understood in the Australian federal context. Thus, each law area, if it be a State, is a component of the federation and, if it be a Territory, is a Territory of the federation. And with respect to matters that fall within federal jurisdiction, the Commonwealth of Australia is, itself, a law area. Across all these law areas there runs the common law of Australia, as modified from time to time and in various respects by the statute law of competent legislatures. Thus, ‘law area’ and ‘lex fori’ are used in a sense which involves the application by particular courts of the laws of particular legislatures and, in the case of the States and Territories, those laws may reach beyond the geographical area of the State or Territory in question … [T]he common law of Australia includes the rules for choice of law, again subject to statutory modification.

2.3 More recent decisions have evidenced the reality that state legislatures, perhaps increasingly, do not confine their legislative reach to conduct on events occurring solely within the territorial or geographical bounds of the state in question.9 It is for that fundamental reason that complex questions frequently arise as to which of two or more potentially applicable systems of law apply in any given case, and what are the guiding principles to be used in answering that question. As Justice Leeming has pointed out, writing extra-judicially, many claimed conflicts are more apparent than real and apparent inconsistency may evaporate as a result of the application of ordinary principles of statutory construction10 —which may have the effect of ‘localising’ state statutes—or the application of choice-of law rules.11 It is only if neither of these two techniques eliminates the conflict of applicable laws that a further mechanism is required. As shall be seen below, the High Court has rejected the view that that mechanism is supplied by s 118 of the Commonwealth Constitution. [page 15]

Can the Federal Parliament Enact Choice of Law Rules? 2.4 By pl (xxv) of s 51 of the Constitution, Parliament may legislate with respect to ‘the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States’. The plenary powers

which the Federal Parliament possesses in relation to the territories under s 122 of the Constitution enable it to provide for the recognition, enforcement and effect of state laws and judgments in the territories and vice versa.12 2.5 The extent of these legislative powers has never been defined. It may be that pl (xxv) when used in conjunction with s 122, will enable the parliament to enact statutory rules for resolving conflicts of law between the states and territories. In the United States Constitution, Art IV, s 1 confers upon Congress a similar power to ‘prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof’. There is in the United States some judicial and textwriter support for the view that this provision enables Congress to enact recognition and choice of law rules applicable in interstate conflicts.13 The Defense of Marriage Act, 28 USC § 1738C is an example of such an enactment, it relevantly providing that: No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.14

2.6 The point has not been resolved in Australia. In Harris v Harris15 Fullagar J proceeded on the assumption that Federal Parliament had the power to compel the courts of Victoria to give substantive recognition to the judgments and decrees of New South Wales. In Breavington v Godleman16 Mason CJ suggested that pl (xxv) might support a legislative solution by the Federal Parliament of inter-jurisdictional conflict of laws problems in Australia.17 It also appears to be the view of Wilson and Gaudron JJ,18 that pl (xxv) enables the parliament to define the circumstances in which the laws of other states are to be recognised. The matter was not considered by the other justices. [page 16]

The Effect of the Constitution — Full Faith and Credit 2.7 Section 118 of the Constitution provides: Full faith and credit shall be given throughout the Commonwealth, to the laws, the public Acts and

records and the judicial proceedings of every State.

2.8 Until 1995, s 118 was amplified by the legislative direction enacted by the Federal Parliament in s 18 of the State and Territorial Laws and Records Recognition Act 1901 which provided that judicial proceedings of any state or territory, if duly authenticated as required by that Act, should have such faith and credit given to them in every court or public office as they had by law or usage in the courts and public offices of the state or territory whence they were taken. Section 18 was repealed in 1995 by s 3 of the Evidence (Transitional Provisions and Consequential Amendments) Act 1995 (Cth). Section 18 was re-enacted in substantially similar form as s 185 of the Evidence Act 1995 (Cth). It now reads: All public acts, records and judicial proceedings of a State or Territory that are proved or authenticated in accordance with this Act are to be given in every court, and in every public office in Australia, such faith and credit as they have by law or usage in the courts and public offices of the State or Territory.

2.9 There is an important difference between s 118 of the Constitution and s 185 of the 1995 Act. Section 118 demands that full faith and credit be given to the laws, the public Acts and records and the judicial proceedings of every state. It makes no reference to the territories, although the use of the words ‘throughout the Commonwealth’ clearly imposes an obligation to give full faith and credit to state laws within the territories.19 Section 185 on the other hand refers to both states and territories but contains no reference to ‘laws’ and speaks of ‘public acts’ omitting the capital ‘A’. 2.10 The position in respect of the repealed statutory provision was explained by Wilson and Gaudron JJ in Breavington v Godleman20 in the following terms: When the Recognition Act was enacted in 1901, s 18 was concerned solely with the public acts, records and judicial proceedings of the States, there being then no Territories within the Commonwealth. It is unlikely that s 18 was intended merely to echo the Constitutional provision, even if operating by reference to faith and credit. The Recognition Act then, as now, was substantially concerned with evidentiary matters. Section 18, then as now, travelled beyond the merely evidentiary, but confined its substantive effect to ‘public acts, records and judicial proceedings, if proved or authenticated as required by this Act’. It is in the evidentiary provisions that the meaning of ‘public acts’ is to be found. It is the evidentiary provisions which govern proof or authentication upon which the substantive operation of s 18 is predicated. The evidentiary provisions, then as now, dealt with, inter alia, proclamations, commissions, orders and regulations (s 6) and by-laws and regulations (s 15). The words ‘public acts’ in s 18 are apt to include such matters. However, the Recognition Act makes no provision for the proof or

[page 17]

authentication of State Acts. By s 3 they are to be the subject of judicial notice and by s 118 of the Constitution they are to be accorded full faith and credit. Nor does the Recognition Act make any provision in respect of Acts of a Territory. Accordingly, in our view, s 18 of the Recognition Act has no operation in relation to either the Acts of the States or the Acts of a Territory.

2.11 The majority of the court agreed with this interpretation which applies equally to s 185 of the Evidence Act 1995 (Cth).21 Thus, one must look to s 118 of the Constitution alone to support an argument that the common law choice of law rules have been displaced within Australia. Despite the omission of the laws of the territories from s 118 of the Constitution, there appeared to be a majority view in Breavington v Godleman that a constitutional obligation akin to full faith and credit is due to the laws of the territories, which were carved out of the original federating states.22 The question therefore is: what does full faith and credit mean in Australia?

The alternative interpretations of full faith and credit 2.12 There are two possible interpretations of s 118: one that would not interfere with the choice-of-law rules developed at common law or, for that matter, with state and territorial legislation determining for those jurisdictions in what circumstances the law of another state or territory should be applied in their courts. The other interpretation would impose an obligation to give substantive effect to the laws of another state or territory through the prescription of a uniform rule of preference, which could not be affected by a state or territorial legislative direction to the contrary. The former interpretation is the one preferred by the High Court.

Section 118 has no effect on choice of law 2.13 In Anderson v Eric Anderson Radio and TV Pty Ltd23 the plaintiff had been injured in the Australian Capital Territory through the negligence of the defendant. The plaintiff brought action in New South Wales. It was found that he was guilty of contributory negligence. The common law rule that contributory negligence constituted a complete defence was still in force in New South Wales. In the Territory it was provided by s 15 of the Law Reform (Miscellaneous Provisions) Ordinance 1955 (ACT) that the plaintiff’s claim should no longer be defeated by reason of his own fault but that in such a case the amount of damages should be apportioned. 2.14 The plaintiff argued that the effect of the full faith and credit provision in

(the now-repealed) s 18 of the State and Territorial Laws and Records Recognition Act 190124 was to make the law of the Territory applicable in the New South Wales [page 18] court. All of their Honours rejected the argument. They took the view that on a proper construction of the Ordinance the right given by s 15 of the Ordinance was enforceable only in proceedings commenced in the courts of the Territory.25 Full faith and credit could not be invoked to make a territorial provision, applicable in its own terms only in the courts of the Australian Capital Territory, part of New South Wales law and as such applicable in New South Wales courts. Before that could happen, the choice-of-law rules of New South Wales had to make the law of the Territory applicable to the case before the court. As Kitto J pointed out:26 … whatever may constitute giving faith and credit to the laws of the Territory, it is faith and credit to these laws as they stand, not as notionally altered …

2.15 The same point was very strongly put by Dawson J in Breavington v Godleman:27 In my opinion the requirement that full faith and credit be given to the laws of a State, statutory or otherwise, throughout the Commonwealth, affords no assistance where there is a choice to be made between conflicting laws. Once the choice is made, then full faith and credit must be given to the law chosen but the requirement of full faith and credit does nothing to effect a choice.

2.16 This statement was expressly approved by the majority of the High Court in McKain v RW Miller & Co (SA) Pty Ltd where they said:28 ‘The selection of the applicable law is the function of the common law; s 118 provides for recognition by the courts of the forum of the rules so selected’. Similarly, in John Pfeiffer Pty Ltd v Rogerson,29 the majority said: In its terms, s 118 does not state any rule which dictates what choice is to be made if there is some relevant intersection between legislation enacted by different States. Nor does it, in terms, state a rule which would dictate what common law choice-of-law rule should be adopted.

2.17 In Sweedman v Transport Accident Commission,30 the majority implied that the appellant was correct to abandon any reliance upon s 118 as providing a test for resolving any inconsistency between laws of different state legislatures. 2.18 The current view of the High Court is therefore that s 118 has no effect on

the choice of law or role to play in resolving inconsistencies (where they in truth exist) between laws of different state legislatures.

Section 118 replaces choice-of-law rules 2.19 The alternative interpretation of s 118, the significance of which must now be considered as largely historical, was first adumbrated in Australia by Napier J in the Supreme Court of South Australia when he gave the following interpretation in F and B Chemicals and Wool Treatment Pty Ltd:31 [page 19] I think that it is a direction to the court of trial to ascertain and apply the proper law of the matter or transaction that is in question. In other words, the intention is that the law to be applied shall be the same, wherever in Australia the cause is tried.32

2.20 A similar interpretation had been given a few years earlier to the equivalent provision in the United States Constitution, Art IV, s 1, from which the Australian provision is derived. That section provides: ‘Full Faith and Credit shall be given in each State to the public Acts, Records and Judicial Proceedings of every other State’. 2.21 In Bradford Electric Light Co v Clapper33 the Supreme Court held that the courts of New Hampshire were bound to give full faith and credit to the Workers’ Compensation Act of Vermont in respect of a claim arising out of the fatal injury suffered by a Vermont resident while he was on a casual assignment in New Hampshire for his Vermont employer. Brandeis J delivering the opinion of the court held that since the employer/employee relationship was centred in Vermont, the New Hampshire courts were constitutionally obliged to give effect to that relationship as defined by the Workers’ Compensation Act of Vermont. 2.22 However, the Supreme Court began a retreat from this position only three years later in Alaska Packers Assn v Industrial Accident Commission of California34 where it was held that California need not give way to the workers’ compensation law of Alaska even though the worker, who was injured in Alaska where his employment was substantially centred, was a party to a contract of employment which stipulated that the Alaskan law was to apply. It was held that the interest of California where the employment of the worker, who was a nonresident alien, began and ended, was greater than that of Alaska. But even this

‘weighing’ process became difficult to maintain. By the end of the decade in which Clapper’s case was decided, the Supreme Court had acknowledged that each state may make its own laws paramount in respect of persons and events within its territory.35 2.23 The retreat was completed with Richards v US36 where the Supreme Court gave up the weighing process altogether and held that in a case involving more than one state, a state court can constitutionally apply the law of any state which has a ‘sufficiently substantial interest in the multi-state activity’.37 The Supreme Court recently said that ‘[t]he Full Faith and Credit Clause does not compel a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate’.38 [page 20] 2.24 The only limitation on a state seeking to apply its own law in a situation where it has no reasonable interest is found in the due process clause of the United States Constitution,39 which has no direct counterpart in the Australian Constitution.40 As Mason CJ remarked in Breavington v Godleman:41 ‘… why should we give to the facsimile an interpretation denied to the original?’

Does s 118 have any substantive effect? 2.25 Is it correct to say, as Gaudron J did in Stevens v Head,42 that, in light of the prevailing view of s 118 as noted above, the section ‘means nothing of any constitutional significance at all’? With respect, this is not correct although the current interpretation only gives s 118 a relatively narrow sphere of operation. 2.26 As Dawson J said in Breavington v Godleman,43 once the choice-of-law rule of the forum has indicated the applicable law of another state or territory, ‘full faith and credit must be given to the law chosen’. This means not only that judicial notice must be taken of such a law, but also that the forum cannot employ public policy of the forum to disapply or override an otherwise applicable interstate statutory law44 indicated by the forum’s choice-of-law rules. In the words used by Marks J in Borg Warner (Aust) Pty Ltd v Zupan,45 s 118 ‘incorporates the negative direction of non-obstruction’. 2.27 Even Brennan and Dawson JJ who took the more restrictive view of s 118 in Breavington v Godleman referred with approval to the decision of the High

Court in Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd46 where the High Court reversed the decision of a Victorian judge who had refused to apply the provisions of the Moratorium Act 1930 (NSW) on the ground that it was contrary to the public policy of Victoria. This public policy objection was untenable in any event, but Rich, Dixon and Evatt JJ also expressed the view that s 118 prevented one state from setting up its public policy as a bar to the enforcement of the law of another state.47 2.28 In Breavington v Godleman both Brennan and Dawson JJ48 accepted those dicta as authority for the proposition that, once the choice-of-law rule of the forum refers to the law of another state or territory, considerations of full faith and credit will preclude the forum state from applying the safety valve of public policy to deny substantive effect to interstate laws. The same, it is submitted, should apply to the refusal to apply interstate penal laws,49 or the refusal to apply interstate revenue [page 21] laws.50 Another modification is suggested by the decision in Zwillinger v Schulof 51 where it was held that the rule that habeas corpus does not lie in respect of a person held abroad, does not apply where the person is detained in another state or territory of Australia. 2.29 In John Pfeiffer Pty Ltd v Rogerson,52 the majority was more reserved, saying only that ‘it may well be’ that s 118 denies one state’s courts the power to deny the application of another state’s statute law on public policy grounds. Subsequently, in Sweedman v Transport Accident Commission,53 it was said that s 118 would ‘appear to foreclose’ any reliance upon public policy as a basis for not recognising or giving effect to an otherwise applicable statute of another State, noting that ‘[w]ithin the Commonwealth, considerations of the kind considered in Attorney General United Kingdom v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 would not arise’.

Sweedman v Transport Accident Commission 2.30 Section 118 of the Constitution having been effectively eliminated as providing any choice-of-law role or solution, a question which remains is whether any other constitutional provision, norm or implication from the federal

structure operates in circumstances where the statutes of two or more states purport to regulate or govern a single set of events. A complex argument in support of a positive answer to this question was sought to be developed in Sweedman v Transport Accident Commission,54 a case in which both the Transport Accident Act 1986 (Vic) and the Motor Accidents Act 1988 (NSW) purported, to some extent at least, to address and regulate a motor vehicle accident in New South Wales between New South Wales and Victorian registered vehicles with drivers respectively from New South Wales and Victoria. The High Court rejected the argument, however, on the basis that it was advanced at too high a level of abstraction, and that it failed to identify any adequate constitutional criterion to resolve inconsistency between the laws of two or more states. 2.31 Importantly, the court in Sweedman was unequivocal in its rejection of any suggestion that, where a clash occurred, it was to be resolved by reference to which state had the ‘greater governmental interest’, a clear echo of once popular ‘government interest analysis’ which formerly informed the ‘proper law of the tort’ approach in the United States and which was rejected for Australia in John Pfeiffer Pty Ltd v Rogerson.55 The court also and unequivocally rejected any ‘covering the field test’, namely a test to resolve inconsistency by asking whether either of the legislatures in question intended to ‘cover the field’ in and by their enactment. This [page 22] was rejected as singularly inapposite for resolving disputes between polities of an equal level on the governmental hierarchy. 2.32 The conundrum as to how, in the apparent absence of constitutional guidance, a clash or incompatibility between valid laws of co-ordinate legislatures speaking inconsistently to the same set of facts is to be resolved, remains to be determined.56 Various theories have been advanced in the academic literature as to how to resolve this conundrum.57 They are carefully analysed by Leeming who broadly supports the approach of Professor Lindell and Sir Anthony Mason to the effect that, subject to federal legislation, primacy should invariably be afforded to territorial legislation which is inconsistent with extra-territorial legislation, and that where there are competing extra-territorial statutes, that which has the ‘closer connection’ to the issue should apply.58 This

is a familiar choice-of-law technique. Leeming would gloss this analysis in three respects: first, he draws attention to the need always to consider whether the question arises in the context of the exercise of federal jurisdiction, in which cases, ss 79 and 80 of the Judiciary Act 1903 and the complex body of learning associated with those two provisions comes into play; second, he notes that while territoriality will usually be the best discrimen and determinative in resolving competition between two or more statutes, this is not invariably the case; and thirdly, he advances a limited, negative role for s 118 of the Constitution, to wit, a view that that section may require the non-application of potentially applicable and competing but inconsistent extra-territorial laws where neither has what may be described as a clear cut closest connection with the issue in dispute. 2.33 Sweedman v Transport Accident Commission59 is instructive, however, because it illustrates that a close analysis of the apparently competing state statutes is required in order first to ascertain whether or not there is in fact a ‘true conflict’.60 In the result in that case, although both the Transport Accident Act 1986 (Vic) and the Motor Accidents Act 1988 (NSW) had apparent potential, the court held that there was no true conflict on the proper construction of both Acts. In point of fact, the court held that the New South Wales Act did not speak to the availability, in New South Wales or otherwise in respect of a New South Wales accident, of a statutorily-conferred right of indemnity from the tortfeasor pursuant to s 104 of the Victorian Act. The New South Wales Act was concerned to place a cap on [page 23] claims for ‘damages’. The Victorian statutory claim was characterised as generating a restitutionary claim in debt. 2.34 Apart from statutory construction and as observed in 2.3 above, a clash or inconsistency between two or more state statutes may be more apparent than real in that it may evaporate following the characterisation of the issue or claim for choice-of-law purposes. Unless the relevant statute of the forum in question itself is or contains a statutory choice-of-law provision, the common law choiceof-law rule of the forum will invariably only point to one applicable law which will either be the local law itself or the statute of the other state. In other words, the very choice-of-law process will, as it is intended to do, itself resolve the

inconsistency or the ‘conflict’ of laws. _________________________ 1.

Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at 22–3, at [9], 34 at [48], 58–9 at [122]– [123]; Sweedman v Transport Accident Commission (2006) 226 CLR 362 at 398, at [183]. For an example of state legislation held to be beyond the competence of a state legislature, see Hitchcock v Pratt (2010) 79 NSWLR 687 in which it was held that s 64 of the Succession Act 2006 (NSW) was beyond constitutional competence insofar as it purported to confer power on the Supreme Court of NSW to make a family provision order affecting succession to property outside New South Wales of a testator who dies domiciled outside of New South Wales. By way of contrast, it was held that the legislation was valid and effective in authorising the Court to make a family provision order affecting immovable property outside New South Wales of a testator who died domiciled in New South Wales, as well as to make such an order in relation to movable property in New South Wales of a testator who died domiciled out of that state.

2.

Sweedman v Transport Accident Commission (2006) 226 CLR 362 at 402, at [33].

3.

Solomons v District Court (NSW) (2002) 211 CLR 119; Saint-Gobain Abrasives Pty Ltd v McPherson [2009] NSWCA 214; R v Baldock (2010) 269 ALR 674 at 702.

4.

See M Leeming, Resolving Conflicts of Laws, Federation Press, 2011, Chapter 6.

5.

See Chapter 1 above.

6.

(1988) 169 CLR 41 at 78 per Mason CJ, at 98 per Wilson and Gaudron JJ, at 124–5 per Deane J.

7.

(1991) 174 CLR 1 at 35–6 per Brennan, Dawson, Toohey and McHugh JJ. Since the decision in Breavington Wilson J had retired and was replaced by McHugh J.

8.

(2000) 203 CLR 503 at [2].

9.

Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at 22–3, at [9], 34 at [48], 58–9 at [122]– [133]; Sweedman v Transport Accident Commission (2006) 226 CLR 362 at 398, at [183]; see also APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 389, at [158]; Hitchcock v Pratt (2010) 79 NSWLR 687.

10. See, for example, Chubb Insurance Co of Australia Ltd v Moore [2013] NSWCA 212. 11. M Leeming, Resolving Conflicts of Laws, Federation Press, 2011, Chapter 6. 12. Lamshed v Lake (1958) 99 CLR 132 at 145–6 per Dixon CJ. 13. See Yarborough v Yarborough (1933) 290 US 202 at 215 note 2 per Stone J. See also Cook, Logical and Legal Bases of the Conflict of Laws, Harvard University Press, Cambridge, MA, 1942, pp 103–5; and Currie, Selected Essays on the Conflict of Laws, Duke University Press, Durham, NC, 1963, p 273. 14. The constitutional validity of this Act was upheld in Wilson v Ake, 34F Supp 2d 1298 (MD Fla 2005). 15. [1947] VLR 44. 16. (1988) 169 CLR 41 at 83. 17. A contrary view is taken by Wynes, Legislative, Executive and Judicial Powers in Australia, 5th ed, Law Book Co, Sydney, 1976, p 174. The Australian Law Reform Commission, in its Report on Choice of Law, 1992, para 3.24, accepted the view that federal legislation providing for uniform choice-of-law rules enacted in reliance on pl (xxv) ‘would be a valid exercise of Commonwealth legislative power’. However, it preferred parallel uniform Commonwealth and state legislation (para 3.25). 18. (1988) 169 CLR 41 at 94. 19. Lamshed v Lake (1958) 99 CLR 132 at 142 per Dixon CJ.

20. (1988) 169 CLR 41 at 94–5. 21. This analysis was supported by Mason CJ, see note 20 above at 80, Brennan J at 115, Dawson J at 148– 9,Toohey J at 166. Deane J expressed no view on the interpretation of s 18. 22. Either because it is desirable to have uniformity: see Wilson and Gaudron JJ, (1988) 169 CLR 41 at 95; or because full faith and credit to territorial laws is mandated by s 122 and Covering Clause 5 of the Constitution: see Brennan J at 115–16, Deane J at 139, and Dawson J at 149. On the other hand Mason CJ at 80, and Toohey J at 163–4, took the view that the imperative of s 118 does not extend to the laws of a territory. 23. (1965) 114 CLR 20. 24. The assumption that s 18 applied to the Territorial Ordinance was, of course, shown to be incorrect in Breavington v Godleman (1988) 169 CLR 41. 25. (1965) 114 CLR 20 at 24 per Barwick CJ, at 37 per Taylor J, at 45 per Windeyer J. 26. See note 25 above at 33. 27. (1988) 169 CLR 41 at 150. 28. (1991) 174 CLR 1 at 37 per Brennan, Dawson, Toohey and McHugh JJ. 29. (2000) 203 CLR 503 at [63] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 30. (2006) CLR 362 at 407, at [493]. 31. [1939] SASR 441 at 443. 32. This interpretation was supported by Hogarth J in Plozza v South Australian Insurance Co [1963] SASR 122 at 128; by Zelling J in Hodge v Club Motor Insurance Agency Pty Ltd (1974) 7 SASR 86 at 102; Edelsten v Health Insurance Commission (1988) 90 ALR 595 at 601 per Gummow J (‘at least provided there was no conflict with the domestic law of the second State’). A contrary view was taken by Helsham J in In the Will of Lambe [1972] 2 NSWLR 273 at 279–80. 33. 286 US 145 (1932). 34. 294 US 532 (1935). 35. Pacific Insurance Co v Industrial Accident Commission, 306 US 493 (1939); Watson v Employers Liability Assurance Corp, 348 US 66 (1954); Carroll v Lanza, 349 US 408 (1955). 36. 369 US 1 (1962). 37. See note 36 above at 15. 38. Baker v General Motors Corp, 522 US 222 at 232 (1998). 39. Allstate Insurance v Hague, 449 US 302 (1981). 40. Somewhat similar limitations may be implied in the ‘peace, order and good government’ clauses of the state constitutions: Breavington v Godleman (1988) 169 CLR 41 at 140 per Deane J; Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR at 10. 41. (1988) 169 CLR 41 at 82–3. 42. (1993) 176 CLR 433 at 464. 43. (1988) 169 CLR 41 at 150. 44. As there is only one common law of Australia, there will never be a difference or clash between the common law of the state whose law governs the dispute and that of the forum. 45. [1982] VR 437 at 461. 46. (1933) 48 CLR 565.

47. See note 46 above at 577 per Rich and Dixon JJ, at 588 per Evatt J. 48. (1988) 169 CLR 41 at 116 per Brennan J, at 150 per Dawson J. 49. Miller v Teale (1954) 92 CLR 406 at 415; see also O’Sullivan v Dejneko (1964) 110 CLR 498. 50. Permanent Trustee Co (Canberra) Ltd v Finlayson (1967) 9 FLR 424. But see to the contrary, Rothwells Ltd (in liq) v Connell (1993) 119 ALR 538 at 545–6 per Fitzgerald P and Williams J, at 548– 9 per McPherson JA. 51. [1963] VR 407. 52. (2000) 203 CLR 503 at 533–4, at [64] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. Compare, to the opposite effect, at 576 at [202]–[203] per Callinan J. 53. (2006) 226 CLR 362 at 404, at [35]. 54. (2006) 226 CLR 362. 55. (2000) 203 CLR 503 at 537–8, 562–3. 56. Sweedman apart, this question was touched upon in Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340 at 374; and Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at 34, at [48], 52–3 at [110], 61 at [131]. See also Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78. 57. See, for example M Detmold, The Australian Commonwealth: A Fundamental Analysis of its Constitution, LBC, 1985, pp 133-157; S Gageler, ‘Private Intra-national Law: Choice or Conflict, Common Law or Constitution?’ (2003) 23 Australian Bar Review 184; J Kirk, ‘Conflicts and Choice of Law Within the Australian Constitutional Context’ (2003) 31 Federal Law Review 247; G Hill, ‘Resolving a True Conflict Between State Laws: a Minimalist Approach’ (2005) 29 Melbourne University Law Review 39; G Lindell and AF Mason, ‘The Resolution of Inconsistent State and Territory Legislation’ (2010) 38 Federal Law Review 391. 58. M Leeming, Resolving Conflicts of Laws, Federation Press, 2011, Chapter 6. 59. (2006) 226 CLR 362. 60. See 2.3 above.

[page 25]

PART II

Jurisdiction and Procedure Chapters 3

Jurisdiction in Personam

4

Interlocutory Relief

5

Federal and Admiralty Jurisdiction

6

Cross-vested Jurisdiction

7

Forum Selection and Arbitration Agreements

8

Restraint of Local Proceedings: Clearly Inappropriate Forum

9

Restraint of Foreign Proceedings: Anti-Suit Injunctions

10

State Immunity, Act of State and Non-Justiciability

11

Evidence From and For Other Countries

[page 27]

Chapter 3

Jurisdiction in Personam Introduction 3.1 The first question that must arise in any case involving foreign elements is whether the court has jurisdiction to hear and determine the matter. Jurisdiction is a term of many meanings.1 The jurisdiction of Australian courts obviously is limited. The Supreme Court of New South Wales, for instance, would not assume jurisdiction to hear a dispute between citizens of Mongolia who had never been within the state and whose dispute had no connection with the state (unless, of course, both parties agreed to have their dispute resolved by the Supreme Court of New South Wales for example as a neutral forum).2 Conventionally, also, jurisdiction would not be asserted with regard to a claim involving foreign land or foreign rights such as patents regarded as having a purely local and strictly territorial sphere of operation, and this was so even if the proposed defendant to the claim was present in or able to be physically served within an Australian state or territory.3 3.2 The ambit of the jurisdiction of Australian courts can be defined by reference to the common law and partly by reference to statute. When the courts of the Australian colonies were first invested with jurisdiction by, or under the authority of, Imperial statute, their jurisdiction was defined by reference to the jurisdiction [page 28] exercised by their English equivalents. Consequently, the colonial courts were subjected to the jurisdictional limits which historical accident and the vagaries of medieval practice had imposed upon the courts of King’s Bench, Common Pleas,

Exchequer, Chancery, Admiralty and the ecclesiastical courts.4 3.3 In explaining the common law rules relating to jurisdiction, a distinction must be drawn between several categories, for each of which special rules exist. The most important category is that of the action in personam. This includes the actions in tort and contract which could traditionally be brought in the common law courts of King’s Bench, Common Pleas and Exchequer, together with suits in equity for such relief as specific performance, injunction, rescission and rectification.5 3.4 Service of the writ is the foundation of jurisdiction in actions in personam.6 Unless a foreign defendant is validly served with process, or voluntarily submits to its jurisdiction, an Australian court cannot exercise jurisdiction over him or her.7 The method by which service can be effected on a defendant resident outside the jurisdiction depends, in the case of a natural person, on whether the defendant is served within the jurisdiction of the court which issued the process, or outside that jurisdiction but within Australia, or outside Australia. Each of these scenarios is considered below. In the case of service on a corporate defendant, there is a body of law relating to when a corporation will be regarded as being ‘present’ in the jurisdiction or otherwise able to be served within the jurisdiction.8 If the corporation is not present and/or otherwise able to be served in the jurisdiction, for an Australian court to be able to exercise jurisdiction over it, in the absence of submission to the jurisdiction, service on the corporation abroad will be required and, as shall be seen, that will only be possible if the claim sought to be propounded against the corporation is one expressly authorised by the relevant rules of the court in which proceedings have been commenced.

Service Within the Jurisdiction 3.5 Traditionally, an action in personam was commenced in the King’s name commanding the sheriff to require the defendant to satisfy the plaintiff’s claim or appear before the King’s justices and answer the claim. The efficacy of the writ was said to depend on the sheriff’s ability to secure compliance with its command. Consequently, no writ could be made effective against a defendant who was beyond [page 29]

the limits of the realm.9Though the reason has gone,10 the rule remains. As the High Court put it in Laurie v Carroll:11 The defendant must be amenable or answerable to the command of the writ. His amenability depended and still primarily depends upon nothing but presence within the jurisdiction.

3.6 The Australian states and territories are all subject to the one sovereign. Yet, for the purposes of jurisdiction, each has traditionally been regarded as a separate sovereignty. This means that an originating process issued out of any state or territorial court does not, except where statute otherwise provides, run beyond the limits of the state or territory in which it was issued.12 Except where authorised by statute, a court cannot exercise jurisdiction merely because the defendant possesses property within the jurisdiction,13 or because the defendant is domiciled within the jurisdiction. 3.7 It suffices that the defendant is physically present within the jurisdiction at the moment of service. The length of presence and the purpose for the defendant’s presence are immaterial as illustrated by the famous case of Maharanee of Baroda v Wildenstein14 where the French art dealer, Daniel Wildenstein, was served with process whilst in England to attend the Ascot races. In the United States, such service during a fleeting presence in the forum is sometimes referred to as ‘tag’ jurisdiction, which has nevertheless been held to conform to the strict American constitutional rules about due process.15 3.8 In Evers v Firth,16 the plaintiff had been injured in a motor accident in Queensland. Both parties resided there. After the action had become barred by the three-year period of the Queensland statute of limitations, the solicitors for the plaintiff persuaded the defendant who was insured by the Queensland State Government Insurance Office to cross the border into New South Wales solely for the purpose of being served with a New South Wales writ. In New South Wales the limitation period was six years which had not yet expired. The New South Wales Court of Appeal held that this was sufficient to attract jurisdiction.17 The same conclusion was drawn by Shepherdson J in the virtually identical circumstances of Perrett v Robinson.18 [page 30] 3.9 Provided that the defendant has been served in the jurisdiction, it is immaterial that the dispute has no connection with the forum.19 It may, for example, concern a contract made and to be performed abroad between parties

who normally reside there.20 Despite any tenuous connection, it has been said in the context of a foreign defendant that ‘a plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise’.21 The onus lies on such a defendant to show that the forum chosen by the plaintiff is clearly inappropriate.22 3.10 However, jurisdiction based on service will not be established if the defendant was forced or tricked into coming into the jurisdiction for the sole purpose of being served with the originating process.23 This exception has been narrowly interpreted in Australia. Thus, the real defendant in Evers v Firth, the Queensland State Government Insurance Office, did not succeed in having the service of the writ set aside on the ground of collusion between the plaintiff and the titular defendant. It has also been held that a person may be served having come within the jurisdiction in response to a summons, subpoena or otherwise by force of law.24 3.11 If the defendant left the jurisdiction before the originating process was issued, and does not subsequently submit to jurisdiction or enter an appearance, the court has no jurisdiction by reason of the fact that the defendant was formerly in the jurisdiction even if it can be proved that the defendant left earlier in order to avoid service.25 The position will apparently be different if, although absent from the jurisdiction, the defendant, at the time the originating process was issued, had authorised a representative or agent to accept service, and this will be so even though authority to accept service may have been withdrawn subsequently.26 If the defendant leaves the jurisdiction after the originating process was issued and with knowledge of its existence or, at least, with the purpose of evading it, an order for substituted service can be made against the defendant.27 The Full Court of the Federal Court has held that mere presence at the time of issue followed by departure without knowledge of the issue of originating process would probably not be enough to warrant an order for substituted service.28 In short, save for the particular cases noted above, an order for substituted service on a foreign defendant will be ineffective to ground jurisdiction in the forum court unless personal service abroad [page 31] is otherwise authorised by the rules of court29 and the conditions for substituted service are otherwise justified.30

3.12 A corporation will be present in the jurisdiction for the purposes of service of proceedings in the circumstances described in Chapter 35 below.31

Service Outside the Jurisdiction, but Within Australia High Court and Federal Court 3.13 A writ issued out of the High Court of Australia or the Federal Court of Australia may be served on any defendant anywhere in Australia.32

State and territorial courts The service of process 3.14 Any process issued out of a state or territorial court must be served in accordance with the Service and Execution of Process Act 1992 (Cth) (Service and Execution of Process Act). Section 8(4) of the Act excludes the concurrent operation of state and territorial laws with respect to service within Australia of process to which the Act applies. Thus, it is no longer possible, as it was prior to the commencement of the Act,33 to serve process within Australia in pursuance of the civil procedure rules of the states and territories as an alternative option. 3.15 Service of process in civil proceedings is dealt with in Pt 2 of the Act.34 Section 15(1) enables initiating process whereby a person becomes a party to proceedings, such as a writ, summons or third party notice,35 issued out of any state or territorial court to be served throughout Australia and each external territory. By virtue of s 15(2) such service is to be effected on individuals in the same manner as that process is served in the place of issue. Companies and other bodies registered under the Corporations Act 2001 (Cth) (Corporations Act) must be served under s 9 of the Act in a manner similar to that prescribed under s 601CX of that Act.36 Bodies corporate that are not registered under the Corporations Act [page 32]

can be served under s 10(1) of the Service and Execution of Process Act either in the manner prescribed by the law of the state or territory where service is to be effected, or by leaving the process at, or mailing it to, that body’s principal office or place of business. However, service is only effective under s 16 if copies of prescribed notices advising the person served of his, her or its rights under the Act are attached to the process served. The manner in which service is to be proved is set out in s 11. 3.16 The Service and Execution of Process Act does not require any prior leave to serve, or subsequent leave to proceed, or any territorial connection between the court issuing the process and either the parties or the subject matter. No nexus between the state from which process is issued and the state in which service is effected need by shown.37 Thus, even a transient such as a Japanese tourist visiting Queensland can be validly served with a writ issued out of a New South Wales court.38 Section 130 of the Act relieves state and territorial courts from any territorial limits imposed by state and territorial law on their jurisdiction and s 12 gives service under the Act the same effect as service effected within the territory of the court of issue. Thus, the jurisdiction of each state and territory Supreme Court now extends to the boundaries of the Commonwealth, with the effect that Australia is a single jurisdictional area, at least so far as personal jurisdiction is concerned.39 3.17 In s 3(1) the term ‘court’ is defined broadly so as to include an authority exercising the powers of a court, including any judge, magistrate, coroner or other officer holding office under the law of a state or territory.40 In Dalton v New South Wales Crime Commission,41 the High Court held that a summons issued by the New South Wales Crime Commission could be served interstate pursuant to the provisions of the Service and Execution of Process Act. In particular, it was held that the exercise of investigative functions by a tribunal such as the Commission was not outside the scope of s 51(xxiv) of the Constitution which provides the constitutional foundation for the Act. 3.18 Although Pt 2 of the Service and Execution of Process Act enables state process to be served outside the jurisdiction of issue, it does not thereby convert what is originally state jurisdiction into federal jurisdiction. The effect of the Act is to extend state and territorial jurisdiction by extending the reach of state and territorial courts wherever they may be in Australia.42 However, the exercise of powers under the Act such as the granting of a stay under s 20 does involve the exercise of federal jurisdiction.43

[page 33]

Appearance 3.19 Under s 17(1) of the Service and Execution of Process Act, if the person served is required or permitted under a law of the place of issue of the process to enter an appearance, that person may do so within 21 days after service or the period that would have applied if process had been served at the place of issue, whichever is longer. The time for appearance may be shortened. On an application for the shortening of time the court must under s 17(2) consider urgency, the places of residence or business of the parties and whether there are any related proceedings pending. Section 14(1) makes it clear that the appearance must be filed in accordance with the procedure of the court of issue or in a manner which is acceptable to that court. If the defendant wishes to contest the jurisdiction of the court of issue this can be done if the procedure of the court of issue permits it. 3.20 Under s 18 an appearance is effective only if it contains an address for service within Australia. If the appearance under the law of the place of issue of the process does not require the giving of an address for service, the address of the person entering the appearance will be taken to be the address for service. The court of issue must set aside the appearance if it is satisfied that the address for service given is false or misleading. The person served may apply for an order under s 19(1) that the plaintiff provide security for costs and a stay of proceedings till security is given.

Change of venue or stay of proceedings 3.21 A defendant who has been sued in an unrelated Australian forum cannot object to the jurisdiction of that court as such. However, a defendant who has been sued in an inappropriate Australian forum can apply for a transfer of proceedings under s 5(2) of the cross-vesting legislation, if the proceedings have been instituted in a Supreme Court or the Federal or Family Courts, or for a stay under s 20 of the Service and Execution of Process Act, if the process was issued out of another court, namely an inferior court of a state such as the District Court of New South Wales or the County Court of Victoria.44

Transfer of proceedings between Supreme Courts

3.22 In relation to process issued out of a Supreme Court of a state or territory, the person served may apply for a transfer of proceedings to another Supreme Court in Australia or the Family Court of Western Australia pursuant to s 5(2), (3) of the Jurisdiction of Courts (Cross-vesting) Acts. Until 1999, it was possible under s 5(1) of the Jurisdiction of Courts (Cross-vesting) Acts to apply for a transfer of proceedings from state or territory Supreme Courts to the Federal Court of Australia or the Family Court of Australia, but the provision was held to be unconstitutional in Re Wakim; Ex parte McNally.45 There is, however, no constitutional inhibition on proceedings being transferred from the Federal Court to a State Supreme Court. [page 34]

Stay of proceedings in other courts 3.23 In relation to process issued out of a court other than a Supreme Court, the person served may apply under s 20(2),(3) of the Service and Execution of Process Act to the court where the process was issued for a stay of proceedings on the ground that a court of another state or territory that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters. Section 21 provides that no other court may restrain proceedings on that ground. This statutory preclusion of interstate anti-suit injunctions in the context of the Service and Execution of Process Act was not adverted to in Santos Ltd v Helix Energy Services Pty Ltd,46 where Byrne J suggested that an anti-suit injunction would be an appropriate remedy in a case where a court had refused to transfer proceedings to another court pursuant to the cross-vesting legislation and there were other proceedings on foot in another jurisdiction which the unsuccessful party on the cross-vesting application did not undertake to discontinue. His Honour said: The granting of an anti-suit injunction should then be seen, not as an intrusion upon the processes of the other court, nor as a reflection upon the competence of the other court, nor as any criticism of the other court for accepting the other proceeding or for progressing it. Rather, it is but a practical order made in aid of the underlying decision made under the cross-vesting legislation as to which court is more appropriate.47

3.24 In determining an application to stay proceedings pursuant to s 20, the court of issue must take into account under s 20(4): (a) the places of residence of the parties and of the witnesses likely to be called in the proceeding;

and (b) the place where the subject matter of the proceeding is situated; and (c) the financial circumstances of the parties, so far as the court is aware of them; and (d) any agreement between the parties about the court or place in which the proceeding should be instituted; and (e) the law that would be most appropriate to apply in the proceeding; and (f)

whether a related or similar proceeding has been commenced against the person served or another person; …

But the plaintiff’s choice of the place of issue is not itself a relevant consideration. This last qualification makes it clear that, contrary to the common law test laid down by the High Court in Voth v Manildra Flour Mills Pty Ltd,48 the court should not start with a presumption in favour of the plaintiff’s choice with the defendant having the burden to prove that the plaintiff’s forum is ‘clearly inappropriate’. Instead, the court should determine which is the more appropriate forum without placing an onus on either side. The approach to be followed is akin to that laid down by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd,49 and involves the identification of the court with which the action has the most real and substantial connection and which can be regarded as the natural forum.50 It is also akin to the approach to be followed on an application for transfer under the cross-vesting [page 35] legislation (see 6.13–6.34),51 although the cross-vesting legislation does not identify specific considerations to be taken into account in the same way as does s 20 of the Service and Execution of Process Act.52 3.25 Under s 20(6) the court may determine the matter without a hearing unless one of the parties objects. If a hearing is held, it may be conducted under s 20(7) by audio link or audiovisual link. The order granting a stay may by s 20(5) be subject to such conditions as the court considers just and appropriate. Those conditions may require the commencement of proceedings in the more appropriate forum within a specified time, or may require an undertaking not to rely on a limitations defence which is available to the defendant under the law of the more appropriate forum, but not in the forum initially chosen by the plaintiff.53

Service Outside Australia The Hague Service Convention 3.26 Australia became party to the Hague Service Convention on 1 November 2010. The civil procedure rules in each Australian jurisdiction have been modified to take into account the effect of the Convention,54 which applies to the service of judicial or extrajudicial documents in other Convention countries.55 3.27 The question whether the Hague Service Convention procedures are intended to be exclusive of other means of service abroad has been described as one attended with ‘difficulty and controversy’,56 and the manner in which the Convention has been implemented in Australia does little to make the question any easier to resolve. Academic commentary uniformly states that the Hague Service Convention procedures are mandatory or, rather, ‘non-mandatory but exclusive’,57 meaning that [page 36] the Convention does not require judicial documents to be sent abroad, but that Convention procedures must be used if the lex fori requires judicial documents to be sent abroad.58 The travaux préparatoires of the Convention support the contention that the Convention procedures were intended to be mandatory in this sense,59 as does the handbook prepared by the Hague Conference on Private International Law,60 and as do decisions from other Convention countries.61 One view is that the old rules continue to identify when service outside Australia is permitted, but that in those cases, service must be effected using Convention procedures when service is to be made in a Convention country. Put more simply, the old rules specify when service out may be made, but the new rules on the convention procedures specify how service must be made in convention countries. This interpretation is supported by a provision in New South Wales explicitly stating that the old rules governing the classes of case in which service of originating process may be made outside Australia extend to originating process to be served in accordance with the Hague Service Convention.62 Similarly, the structure of the rules in Victoria can be seen to support the view that the convention procedures are concerned only with how

service outside Australia is to be made, not when it is permitted. Part 1 of O 7 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) deals with when service outside Australia is allowed, and Pt 2 deals with how service in foreign countries is to be made. Part 2 of O 7 applies only to service in countries that are not party to the Hague Service Convention; service in convention countries is set out in O 80.63 Another view is that the Convention procedures supersede the old rules about when service outside Australia is permitted, thereby allowing service of originating process to be made in another convention country in any kind of case. This interpretation is supported by a provision in Western Australia explicitly stating that the rules governing the classes of case in which service of originating process may be made outside Australia do not apply ‘to or in relation to’ the service of originating process outside Australia under the Hague Service Convention.64 Although Western [page 37] Australia is one of the few jurisdictions that still requires leave of the court before service outside Australia is permitted,65 the relevant rule no longer applies when service is to be made using Hague Service Convention procedures. 3.28 In the other Australian jurisdictions, it is not so clear which of the two views is to be preferred, as there is no provision explicitly stating whether the old rules do or do not continue to apply when service is to be made in a convention country. The rules simply state (as they have long done) the classes of case in which service outside Australia is permitted, and then set out the convention procedures elsewhere in newly-made rules. Each jurisdiction does provide that the rules in relation to the convention procedures prevail over any other provisions to the extent of any inconsistency, which lends some support to the proposition that those procedures must be used in preference to the preexisting rules about service outside Australia (at least in jurisdictions other than New South Wales and Victoria).66 On the other hand, the rules in each Australian jurisdiction state that application for service in a convention country using convention procedures may be made, not that service must be done using those means, which supports the proposition that the convention procedures are facultative not mandatory (at least in jurisdictions other than Western Australia).67

Until an authoritative view is stated by a court, the position remains unresolved (except in New South Wales and Western Australia, where opposite views are dictated by the rules). There is much to be said for the view (required in New South Wales but untenable in Western Australia) that the convention is concerned only with the manner in which process is to be served, if service is permitted (or required) by the lex fori. That was the view expressed by the Supreme Court of the United States in Volkswagenwerk Aktiengesellschaft v Schlunk.68 The Supreme Court pointed out that by its terms, the Convention applies ‘where there is occasion to transmit a judicial or extrajudicial document for service abroad’,69 but it does not define the circumstances in which there is ‘occasion to transmit’ a document. The court concluded that ‘we almost necessarily must refer to the internal law of the forum state’ to determine when there is ‘occasion to transmit’ a judicial document, and it went on to find support for that position in the travaux préparatoires of the Convention.70 Thus (except in Western Australia), there is ‘occasion to transmit’ originating process outside Australia only when the old rules permit service to be made. [page 38] 3.29 Whichever view is preferred, it seems fairly clear that if originating process is to be served outside Australia in another Convention country, the Hague Service Convention procedures must be used. At the very least, it can be said that resort to the traditional methods of permitting service outside Australia should not be used to ‘outflank’ the Convention by authorising service by a means that would not be sanctioned by the Convention.71 Even if it is (as the New South Wales provisions suggest) concerned only with the method of service, the Hague Service Convention will remove the difficulties that have been experienced in the past about effecting service of originating process in civil law countries that regard foreign judicial activity as an invasion of their sovereignty. The Convention’s ‘non-mandatory but exclusive’ nature will mean that unless personal or substituted service can be made within Australia, the Convention procedures must be used for service in Convention countries, given that service of originating process remains the foundation of jurisdiction in actions in personam in Australia: see 3.4. 3.30 The Convention requires Contracting States to designate a Central Authority that receives requests for service coming from other Convention countries.72 The Central Authority is required to serve the document, or to

arrange to have it served by an appropriate agency, either by the methods prescribed by its own law, or by a particular method requested by the applicant, unless that method is incompatible with the receiving country’s law.73 If the request for service complies with the terms of the Convention, the receiving country may not refuse to comply unless it deems that compliance would infringe its sovereignty or security.74 It may not refuse to comply solely because it claims exclusive jurisdiction over the subject-matter of the action or that its internal law would not permit an action of that kind.75 At the time of writing,76 there were 68 Contracting States party to the Convention.77 3.31 Where service of a judicial document is to be effected pursuant to the Convention, application is made to the court registrar, accompanied by a draft request for service abroad, the document to be served, a summary of the document to be served, and, where required by the Central Authority of the receiving country, a translation into the official language or one of the official languages of that country [page 39] of both the document and the summary.78 If the court registrar is satisfied that the application complies with the relevant requirements, they must sign the request for service abroad and must forward two copies of the relevant documents directly to the Central Authority in the receiving country.79 3.32 Article 8 of the Convention permits Contracting States to effect service of judicial documents ‘without application of any compulsion, directly through its diplomatic or consular agents’, unless the receiving country has declared its opposition to such service within its territory. Few countries party to the Convention have expressed their objection to the use of Art 8,80 although several others have stipulated that service through diplomatic channels may only be made on citizens of the state from which the documents originate—ie, only upon Australian citizens in the relevant foreign state.81Thus, it is possible in most Convention countries to serve process directly through Australian diplomatic or consular agents in that country, if the recipient is prepared to accept service ‘without application of any compulsion’. The rules in each Australian jurisdiction provide that the other convention procedures do not apply if the Art 8 diplomatic channels are used.82 3.33 Article 10(a) of the Hague Service Convention provides that nothing in the

Convention shall interfere with the freedom ‘to send judicial documents, by postal channels, directly to persons abroad’, provided the country of destination does not object. Thus, it is possible to bypass the Central Authority mechanism, and simply to mail judicial documents to recipients in Convention countries that have not objected to the operation of Art 10(a) of the Convention. However, almost half of the 68 countries that are party to the Convention have objected to the operation of Art 10(a).83 Several others, including Australia, have expressed qualified objection, in that they insist that service be by some form of registered mail, so as to enable acknowledgment of receipt.84 Some countries, including France, Japan, the [page 40] United Kingdom and the United States, have made no objection to the operation of Art 10(a).85 3.34 Article 10(a) refers to the freedom to ‘send’ judicial documents by postal channels. In contrast, Arts 10(b) and (c) refer to the freedom to ‘serve’ judicial documents by alternative means (ie, via judicial officers of the receiving state). There has been much litigation about the effect of Art 10(a) in the United States, which has been party to the Hague Service Convention since 1969. The view of the majority of American courts is that the difference in language between Art 10(a) and Art 10(b) and (c) means that Art 10(a) does not authorise service by postal channels, but merely the sending of routine documents once litigation has begun.86 This view is also reflected in the declaration made by Japan, which does not object to the sending of judicial documents via postal channels, but observes that sending by such a method does not necessarily constitute valid service in Japan.87 Other American courts hold that judicial documents can be served by mail under Art 10(a).88 It should also be noted that the handbook published by the Hague Conference on Private International Law suggests that Art 10(a) authorises service by mail.89 Even if service by mail is authorised under Art 10(a), the question still remains whether it would be effective for Australian purposes, even if permitted by the receiving country. The Australian provisions giving effect to the Hague Service Convention make an exception for diplomatic or consular service under Art 8, but not mail ‘service’ under Art 10. 3.35 Overall, Australia’s ratification of the Hague Service Convention should

make service of originating process outside Australia a much simpler process than has hitherto been the case, with much less scope for challenge to the propriety of service. According to one of the views described in 3.27, the convention procedures may render most of the existing law about service outside Australia of only historic significance, unless service is to be made in a country that is not party to the Convention. According to the other view described in 3.27, the existing law about service outside Australia continues to be significant, both in defining when service can be made in a Convention country, and if service is to be made in a country that is not party to the Convention. Under either view, the old rules about when [page 41] service outside Australia is permitted continue to have some significance. They are described in the remainder of this chapter.

When service outside Australia is permitted 3.36 Subject to the first of the two views essayed in 3.35 above being authoritatively accepted, service of process outside Australia must be authorised under the rules of the court in which the process is issued. In Australia there are ten jurisdictions to be considered; namely, the original jurisdiction of the High Court,90 the Federal Court, the Supreme Courts of each of the six states, the Northern Territory and the Australian Capital Territory.91 Service may be authorised for any claim for relief that could be granted by the court had the defendant been served within the jurisdiction. This includes declaratory relief.92 An order for substituted service may be made where it has not been possible to serve the defendant abroad, but, with the exception of the special cases referred to at 3.11, only in circumstances where the defendant could have been served under the rules of court; that is to say, where the case or cause of action falls within one or more of the relevant paragraphs of the rules of court (discussed further below) authorising service out of the jurisdiction.93

General principles 3.37 Although the Rules authorising service out of Australia are not uniform as between the jurisdictions referred to at 3.36 above, certain principles are

common to all provisions. In each jurisdiction the exercise of what can be described as the ‘extended’ jurisdiction94 lies in the discretion of the court. In the Supreme Courts of the Australian Capital Territory, New South Wales, Queensland, South Australia, Tasmania and Victoria, no leave is required prior to service of the relevant originating process.95 Instead, leave to proceed must be obtained if the defendant fails to appear,96 except in Queensland and South Australia, where the plaintiff may both [page 42] serve outside Australia and proceed without leave.97 Before or after such leave has been granted, the defendant may apply to set aside the service of the originating process or to stay the proceedings on various grounds including that service in the case was not authorised by the rules of the relevant court, that the forum selected by the plaintiff was ‘an inappropriate forum’ or ‘not a convenient forum’98 or that the plaintiff has in sufficient prospects of success to warrant the defendant being put to the time, trouble and expense of defending them.99 In Queensland and South Australia, the only basis for setting aside service is that it was not authorised by the rules.100 When such an application is made by a foreign defendant, the court will be concerned to ascertain whether the plaintiff’s respective claims fall within the rules of court which set out the cases in which service out of the jurisdiction is authorised. If they do not, such service should be set aside.101 As a matter of practice, an application by a plaintiff for leave to proceed will often be heard simultaneously and in conjunction with an application to set aside service of that process brought by a foreign defendant served outside the jurisdiction (and who may not have entered an appearance, or only entered a conditional appearance).102 3.38 In the Northern Territory and Western Australia, leave to serve the defendant out of the jurisdiction must be obtained prior to service.103 In the Federal Court, leave to serve out of the jurisdiction may be applied for beforehand under r 10.43(2) of the Federal Court Rules 2011, or confirmed under r 10.43(6),(7) if the court is satisfied that the failure to apply for leave is sufficiently explained. In the Federal Court, the rules only permit service outside Australia in accordance with ‘a convention’ (which means any convention dealing with legal proceedings in civil matters other than the Hague Service Convention, such as a bilateral convention),104 the Hague Service Convention, or the law of the foreign country.105

If leave is required prior to service, the absence of leave will not render the service a nullity but is an irregularity for which service may be set aside.106 Conversely, it can [page 43] be waived by the defendant or cured through the exercise of the court’s dispensing power.107 If leave to proceed after service is required, absence of leave to proceed will not affect the service, but a subsequent order or judgment will be a nullity.108 3.39 In each jurisdiction the relevant order, provision of the rules or schedule lays down a number of sub-heads or categories of case in respect of which service out of the jurisdiction is authorised (see 3.51ff below). These sub-heads or categories may in certain circumstances overlap. For example, a plaintiff who has been injured abroad through the failure of their employer to maintain a safe system of work may frame the action in tort or in contract. If the contract of employment was made within the jurisdiction, the court will grant leave to serve the originating process out of the jurisdiction on the ground that the action arises out of a contract made within the jurisdiction.109 It is no objection that the plaintiff could have framed the action in tort in which case leave could not have been granted since the tort complained of took place outside the jurisdiction.110 3.40 The general rule is that each sub-head or category must be interpreted independently and disjunctively.111 (However, as noted at 3.107–3.108 below, this general rule no longer applies in the Federal Court, the Australian Capital Territory, Queensland or Tasmania and it has been modified in New South Wales.) Most importantly, the effect of the general rule is that each claim or cause of action sought to be brought against a foreign defendant must be authorised by the relevant rules of court, and a plaintiff who can bring one or more claims or causes of action within the rules may not add other claims or causes of action in respect of which service is not authorised.112 In Traxon Industries Pty Ltd ACN 009 318 987 v Emerson Electric Co,113 French J (as he then was) held that the plaintiff’s claim for breach of contract fell within the relevant rule permitting service out of the jurisdiction, but the plaintiff’s claims for breach of confidence and breach of fiduciary duty, as pleaded, did not. On that basis, he concluded that an order for service out of the jurisdiction could not be made on the current state of the pleadings such that it would be ‘necessary

[page 44] to reconsider the pleadings and either plead those facts which would make it clear that the causes of action referred to fall within the scope of the rule or to abandon those causes of action’. While French J’s observations were correct and conformable with existing authority, as Conti J pointed out in Webster Computer Systems Pty Ltd v Fujitsu Ltd,114 amendment to the Federal Court Rules since that decision was rendered means that, in the Federal Court, leave to serve out of the jurisdiction may be given when only one of several causes of action falls within the relevant sub-heads of jurisdiction set out in r 10.42 of the Federal Court Rules 2011: see 3.108 below. The general rule continues to apply in the Northern Territory, South Australia, Victoria and Western Australia: see 3.109 below.

Where prior leave is not required 3.41 In Victoria, where the rules of court require the court to ‘be satisfied’ that the subject matter of the proceeding falls within one or more of the relevant subheads or categories of case for service out of the jurisdiction before granting leave to proceed,115 the onus remains on the plaintiff to so satisfy the court in the same manner as in cases where prior leave to issue proceedings is required.116 In Seaconsar Far East Ltd v Bank Markazi Jomhouri Islam Iran,117 it was held that the plaintiff must demonstrate a strong arguable case that service abroad was authorised in respect of each cause of action propounded.118Traditionally, there was also said to be a requirement that the plaintiff must also show a ‘strong arguable case’ that their claim would succeed and that it would not subsequently be stayed on forum non conveniens or other grounds.119 This remains true in Victoria, the only jurisdiction that still retains the requirement that the court ‘be satisfied’ before giving leave to proceed.120 However, in New South Wales, where the requirement that the court ‘be [page 45] satisfied’ was removed in 1988, and where what is now r 11.4 of the Uniform Civil Procedure Rules simply provides that the plaintiff may proceed ‘by leave’, the High Court held in Agar v Hyde121 that it is only necessary to show that the

claim is of a kind to fall within one or more of the relevant categories of case for service abroad set out in Sch 6 to the Rules and no assessment of the strength of the plaintiff’s claim or the likelihood of its success is called for or permitted.122 Agar should be applied in the Australian Capital Territory and Tasmania, where the rules are in the same form as those in New South Wales.123 3.42 In Queensland and South Australia, where the plaintiff may both serve and proceed without leave, the rules provide no basis for challenge to the court’s jurisdiction except that the case does not fall within one or more of the sub-heads or categories for service out of the jurisdiction established by the rules. Although r 124 of the Uniform Civil Procedure Rules 1999 (Qld) does not deal with the question of the onus of persuasion when the court’s jurisdiction is challenged, the Supreme Court of Queensland held in Borch v Answer Products Inc124 that the onus lies on the defendant to show that the case does not fall within the rules, rather than on the plaintiff to show that it does.

Where prior leave is required 3.43 The application for leave to serve outside the jurisdiction is made ex parte. The court must be positively persuaded that leave should be granted being satisfied: (a) that the case falls within one or more of the relevant categories for service of originating process abroad; and (b) that the proceedings would not subsequently be stayed on clearly inappropriate forum grounds or for other reasons.125 It has been said that the court will not be satisfied on slight material although such statements may reflect the traditional but now somewhat outmoded view that the exercise of such jurisdiction is exorbitant.126 3.44 The Federal Court Rules require the applicant to show a prima facie case for all or any of the relief claimed in the proceeding before leave is granted.127 That standard does not suggest the kind of scrutiny that would occur in a submission of no case to answer; however, the court may be prepared to draw inferences more [page 46] readily in favour of the applicant, bearing in mind that he or she has not yet had the advantage of discovery, subpoena and other procedural aids for gathering evidence.128 The purpose is ‘to determine by way of a mini rather than a mega

trial whether the applicant has a prima facie case’.129 The plaintiff/applicant is entitled to use a subpoena served within Australia to seek production of documents tending to show that it has a prima facie case for service out.130 Because the applicant need only show a prima facie case for all or any of the relief sought, it is sufficient for the applicant to establish a prima facie case for relief on one cause of action, it being immaterial that a prima facie case for the same relief on another cause of action cannot be made out.131 There remains, on the authorities, a need for the courts to ‘approach with some circumspection the grant of leave to serve outside the jurisdiction’.132 In Voth v Manildra Flour Mills Pty Ltd,133 the High Court noted that a court should not grant leave to serve outside the jurisdiction unless ‘[the court] is positively persuaded that it should do so’.134 3.45 If the defendant/respondent once served appears to contest the jurisdiction or to have service of the originating process set aside,135 the onus remains on the plaintiff [page 47] to persuade the court that service out is justified.136 An application under r 13.01(1) (b) of the Federal Court Rules 2011 to have service set aside results in a review of the original ex parte decision to grant leave and is a rehearing conducted on the basis of additional materials, recognising that the foreign defendant/respondent should have the opportunity to put before the court any additional facts or arguments which might suggest that leave ought not to have been granted.137 The court may not only have to consider de novo in the light of the evidence adduced by both parties138 whether the subject matter of the claim falls within the ambit of the relevant rule or rules, but also whether the court in its discretion should have allowed the action to proceed.139 However, if the issue on which the granting of leave is to be determined depends on contested evidence, the court should not attempt to determine those issues, but allow the service of the writ if satisfied that ‘there is a serious question to be tried’.140 Even if the court is satisfied of these matters, the defendant may still move to strike out the statement of claim or invoke other provisions of the Rules of Court that provide for the summary disposition of proceedings.141 3.46 On an ex parte application for leave full and fair disclosure is necessary.142 In Eyre v Nationwide News Pty Ltd,143 it was alleged on the ex

parte application for leave to serve the writ out of New Zealand that the defendant’s newspaper was extensively published in that country. When the defendant made application to set aside the order for leave, it appeared that only 21 copies were sent out to subscribers in New Zealand. McGregor J held that there had not been full disclosure and set the order for leave aside. However, in Hartwell Trent (Australia) Pty Ltd v Tefal SA,144 Pape J held that the court should not order that service be set aside merely because there had been some non-disclosure where additional material filed at the [page 48] contested hearing showed that the order, if subsequently applied for, would have been granted. In Yzerman v Schofield,145 originating process for a claim relating to land in Western Australia was served in England after leave was given ex parte by the Supreme Court of Western Australia. Both the application for service outside Australia and the affidavit in support of that application stated the plaintiff’s address to be in Western Australia. In fact, the plaintiff was ordinarily resident in England, and the Western Australian address was, at the most, temporary accommodation. The affidavit also did not disclose that the dispute over ownership of the Western Australian land was related to a dispute over land in England, and that the defendant’s English solicitors had intimated to the plaintiff that they would soon begin proceedings in England asserting a claim by the defendant to that English land. EM Heenan J held that the plaintiff should have disclosed these circumstances when applying for service of the Western Australian writ in England, as they indicated that Western Australia might be a clearly inappropriate forum. Service of the writ was not set aside, but the Western Australian proceedings were stayed on the grounds of forum non conveniens and non-disclosure by the plaintiff. 3.47 Any doubt should be resolved in favour of the foreign defendant, not only where there is any doubt as to the proper construction of the relevant rules,146 but on any question on which the issue of jurisdiction depends. Thus, if there is a doubt as to whether the proper law of a contract is that of the forum or of a foreign country, the question should be resolved in favour of the foreign defendant.147

The exercise of discretion

3.48 After the court is satisfied that the plaintiff has a cause of action that falls within one or more of the grounds for service out of the jurisdiction, it may thereafter as a separate and distinct issue148 have to determine whether the forum chosen by the plaintiff is ‘clearly inappropriate’.149 The question of what constitutes a clearly inappropriate forum is discussed elsewhere.150 It suffices to say at this point that on an application to stay proceedings on the ground that the forum selected by the plaintiff is clearly inappropriate, the onus lies on the party seeking the stay whether or not that party was served within the jurisdiction or was served outside [page 49] the jurisdiction by prior or subsequent leave.151 Another important reason why service out of the jurisdiction may be declined (or subsequently set aside or stayed) is because of the existence of a foreign exclusive jurisdiction clause or arbitration agreement to which the plaintiff has agreed, and the fact that the dispute in question falls within the scope of that clause or agreement.152 3.49 The Federal Court Rules 2011 provide that, in order for the court to give leave to serve an originating application outside Australia, the applicant must satisfy the court that: (a) the court has jurisdiction in the proceeding; (b) the proceeding is of a kind mentioned in the list reproduced below at 3.52; and (c) the party has a prima facie case for all or any relief claimed in the proceeding.153 The drafting of the relevant rule may give the impression that leave must be given if the applicant satisfies the three preconditions, but there are many authorities that say that the court has a residual discretion about giving leave even when the preconditions are fulfilled, or assume the existence of such a residual discretion.154 Note 3 to r 10.43(4) of the Federal Court Rules 2011 also points out that like any order made by the court, an order giving leave for service outside Australia may be made subject to any conditions the court considers appropriate.155 3.50 If the court does assume jurisdiction, it has as full and complete a jurisdiction as if the defendant had been served within the jurisdiction. Thus, the court can order a person who is at all relevant times outside the jurisdiction to return children kept by them outside the jurisdiction to a place or person within the jurisdiction even though it has no present means of enforcing obedience.156 Nevertheless, this jurisdiction cannot be carried too far; the court will not

assume jurisdiction where there is no connection between the forum and the children based on nationality, domicile or ordinary residence.157 In Australian Competition and Consumer Commission v Chen,158 Sackville J held that the fact that an order is likely to prove difficult or even impossible to enforce against an overseas resident (in that case, one operating websites in breach of the Trade Practices Act 1974 (Cth)) is not necessarily a bar to the grant of relief, although it is a material consideration to be weighed against other circumstances relevant to the exercise of the court’s discretion. [page 50]

The grounds upon which service out of the jurisdiction may be granted 3.51 The individual sub-heads of each jurisdiction’s rules of court authorising service on a foreign defendant out of the jurisdiction each require a certain connection between the cause of action or its subject matter and the jurisdiction, although the strength of nexus required is variable. As noted at 3.37 above, the rules are not uniform as between the Federal Court and the Supreme Courts of the states and territories. There is, however, a very large degree of commonality. Set out below by way of illustration is the table in r 10.42 of the Federal Court Rules 2011 although, self-evidently, if proceedings are to be commenced in the Supreme Court of a particular state or territory against a foreign defendant, it is that state or territory’s rules of court that must be consulted by a plaintiff wishing to satisfy itself that service abroad is authorised and that, therefore, the court will have jurisdiction to entertain the claim or claims alleged against the foreign defendant.159 3.52 Rule 10.42 of the Federal Court Rules 2011 provides: … an originating application … may be served on a person in a foreign country in a proceeding that consists of, or includes, any one or more of the kinds of proceeding mentioned in the following table: Item

Kind of proceeding in which originating process may be served on a person outside Australia

1

Proceeding based on a cause of action arising in Australia

2

Proceeding based on a breach of a contract in Australia

3

Proceeding in relation to a contract that: (a)

is made in Australia; or

(b)

is made on behalf of the person to be served by or through an agent who carries on business, or is resident, in Australia; or

(c)

is governed by the law of the Commonwealth or of a State or Territory; in which the applicant seeks:

(d)

an order for the enforcement, rescission, dissolution, rectification or annulment of the contract; or

(e)

an order otherwise affecting the contract; or

(f)

an order for damages or other relief in relation to a breach of the contract

4

Proceeding based on a tort committed in Australia

5

Proceeding based on, or seeking the recovery of, damage suffered wholly or partly in Australia caused by a tortious act or omission (wherever occurring)

6

Proceeding seeking the construction, rectification, setting aside or enforcement of: (a)

a deed, will or other instrument; or

(b)

a contract, obligation or liability affecting property in Australia

[page 51] 7

Proceeding seeking the execution of a trust governed by a law of the Commonwealth, or of a State or Territory, or any associated relief

8

Proceeding that affects the person to be served in relation to the person’s membership of a corporation that carries on business in Australia or is registered in a State or Territory as a foreign company

9

Proceeding in relation to an arbitration carried out in Australia

10

Proceeding for an order under Division 28.5 in relation to an arbitration under the International Arbitration Act 1974

11

Proceeding in which the Court has jurisdiction, seeking relief in relation to the guardianship, protection, or care, welfare and development of a person under 18 years (whether or not the person is in Australia)

12

Proceeding based on a breach of a provision of an Act that is committed in Australia

13

Proceeding based on a breach of a provision of an Act (wherever occurring) seeking relief in relation to damage suffered wholly or partly in Australia

14

Proceeding in relation to the construction, effect or enforcement of an Act, regulations or any other instrument having, or purporting to have, effect under an Act

15

Proceeding seeking any relief or remedy under an Act, including the Judiciary Act 1903

16

Proceeding in relation to the effect or enforcement of an executive, ministerial or administrative act done, or purporting to be done, under an Act, regulations or any other instrument having, or purporting to have, effect under an Act

17

Proceeding seeking contribution or indemnity in relation to a liability enforceable by a proceeding in the Court

18

Proceeding in which:

(a)

the person to be served is domiciled or ordinarily resident in Australia; or

(b)

if the person is a corporation—the corporation is incorporated in Australia, carries on business in Australia or is registered in a State or Territory as a foreign company

19

Proceeding in which the person to be served has submitted to the jurisdiction of the Court

20

Proceeding properly brought against a person who is served, or is to be served, in Australia, if the person to be served has been properly joined as a party

21

Proceeding in which the subject matter, so far as it concerns the person to be served, is property in Australia

22

Proceeding seeking the perpetuation of testimony in relation to property in Australia

23

Proceeding seeking an injunction ordering a person to do, or to refrain from doing, anything in Australia (whether or not damages are also sought)

24

Proceeding affecting the person to be served in relation to: (a)

the person’s membership of, or office in, a corporation incorporated, or carrying on business, in Australia; or

(b)

the person’s membership of, or office in, an association or organisation formed, or carrying on business, in Australia; or

(c)

the person’s conduct as a member or officer of such a corporation, association or organisation.

[page 52] In the balance of this section of the chapter, there is a consideration of the most important of the sub-heads of jurisdiction contained in the respective rules of court of the Federal Court and the respective Supreme Courts.160

Cause of action arising in the jurisdiction 3.53 This sub-head of jurisdiction, which is available in the Federal Court, the Australian Capital Territory, New South Wales, Queensland and Tasmania,161 is not limited to particular types of cause of action. Thus, although other sub-heads of jurisdiction deal expressly, for example, with claims or causes of action in contract and tort, there is no reason why such claims could not also fall within the sub-head which authorises service out of the jurisdiction in relation to causes of action arising in Australia. For a cause of action to arise in the jurisdiction it is not necessary that every element arise locally; rather the test is to ask: ‘Where in substance did the cause of action arise?’162 In Traxon Industries Pty Ltd ACN 009 318 987 v Emerson Electric Co,163 French J (as he then was), before citing this test, observed that:

As von Doussa J observed in Delco Australia Pty Ltd v Equipment Enterprises Inc (t/as Kukla Trenchers)… the authorities establish that ‘cause of action’ within the meaning of O 8 r 1(a) does not refer to all the elements of the cause of action. It refers rather to the act on the part of the defendant which gave the plaintiff his cause for complaint.

A cause of action does not necessarily arise where it became complete.164 In News Corporation v Lenfest Communications Inc,165 Giles J (as he then was) held that ‘cause of action’ should not be given a narrow scope and that there could be a cause of action in estoppel. He went on to hold, however, that this alleged cause of action did not arise in Australia on the facts of that case because, looking at the substance of the matter, the conduct which generated the assumption, and the adoption of the assumption (reliance) and an aspect of that which would render departure from the assumption unconscionable, all occurred outside of Australia.166 In Re Mustang Marine Australia Services Pty Ltd (in liq),167 Brereton J analysed the question of where an insolvent trading claim arises, identifying the place of performance of the relevant director’s duties.

Actions in contract 3.54 The word ‘contract’ includes not only obligations created by the express agreement of the parties, but also has been held to include obligations arising in [page 53] quasi-contract (although this was at the time prior to the recognition of an action for restitution on the basis of a ‘unifying legal concept’ based on reversing unjust enrichment).168 Thus, the ‘contract’ sub-head of jurisdiction contained in the various rules of court has been held to include an obligation for which an action would have lain for money had and received;169 a judgment debt;170 the obligation to pay money held for the use of the plaintiff and upon accounts stated;171 a claim on the quantum meruit;172 or a statutory claim for indemnity against the third party insurer of a vehicle.173 It also includes obligations imposed by statute to pay sums certain such as local government rates,174 income tax175 and stamp duty,176 because of the rather beguiling fiction that everyone promises to do that which they are legally obliged to do.177 But it must be a claim for a fixed sum; the statutory right to claim contribution from a concurrent tortfeasor does not fall within this category since it is a claim for an equitable contribution to be fixed in the discretion of the court.178

3.55 In all jurisdictions, leave may be granted where the proceedings are for the enforcement, rescission, dissolution, rectification or annulment of a contract, or otherwise affect a contract, or are for damages or other relief in respect of the breach of a contract.179 The term ‘otherwise affect a contract’ has been interpreted broadly. It is not confined to actions that sound in damages, but includes proceedings for a declaration that a contract has been frustrated.180 The High Court has held in Tana v Baxter181 that the defendant need not be a party to a valid contract; it suffices that relief is sought against them in relation to the agreement; for example, that it be declared void. Nor need the action lie in respect of the contract whose contacts with the forum qualify; it has been held to include proceedings on a collateral contract constituted by a cheque given by way of security.182 The action itself does not have to lie in contract. It is sufficient that it is in connection with the contract; for example, [page 54] a statutory claim for compensation in respect of an oppressive contract,183 or an action in tort for inducing a party to a contract to break that contract.184 3.56 Not all actions ‘affect’ a contract. It was held by the High Court in Gosper v Sawyer185 that a claim in respect of a discretionary trust did not affect a contract, unless the trustee had admitted that certain trust money was held on behalf of the beneficiary. Similarly, it was held in Newtherapeutics Ltd v Katz186 that an action concerning the appointment of a company director did not affect a contract. 3.57 It is an interesting question whether there has to be a contract between the plaintiff and the defendant. In Nominal Defendant v Motor Vehicle Insurance Trust of Western Australia187 the plaintiff sought leave to serve a defendant out of the jurisdiction. The defendant was the insurer of a third party who was liable to indemnify the plaintiff under a judgment. Treating the judgment debt as a contract, Miles J of the New South Wales Supreme Court held that the action by the plaintiff against the insurer ‘affected’ that contract since to the extent that the plaintiff succeeded against the insurer the liability of the judgment debtor to the plaintiff would be discharged. 3.58 That decision was not followed in Finnish Marine Insurance Co Ltd v Protective National Insurance Co Ltd188 which was dealing with an application for service out of the jurisdiction of a suit for a declaration that the plaintiff was

not a party to a contract with the defendant. The learned Commissioner took the view that a claim that there was no contract between the parties could not be said to ‘affect’ the contract, and furthermore that it was essential that the plaintiff and defendant be parties to the contract ‘affected’. It is respectfully submitted that the reasoning of Miles J is to be preferred. In Centrebet Pty Ltd v Baasland,189 the plaintiff obtained leave to serve outside the Northern Territory where the relief being sought included a declaration that a gambling contract was governed exclusively by the laws of the Northern Territory and that, under that contract, the plaintiff had no liability to the defendant. 3.59 The contract in question must: (a) be made within the jurisdiction, either by the defendant personally or through an agent trading or residing within the forum; or (b) be governed by the law of the forum; (c) be breached in the forum wherever the contract may have been made; or (d) contain a clause by which the parties agree to submit their disputes to the jurisdiction of the court in question.190 [page 55]

Contract made within the jurisdiction 3.60 This is a ground authorising proceedings against an absent defendant in all Australian jurisdictions.191 A contract is ‘made within the jurisdiction’ when the last act necessary to create a binding obligation between the parties took place within the jurisdiction. Thus, in the case of a contract made by mail or telegram the acceptance of the offer must have been posted or cabled within the jurisdiction.192 In the case where offer and acceptance took place by instantaneous communication, such as by telephone, facsimile or email, the contract is made at the place where the message of acceptance is received by the offeror.193 Telex and facsimile messages passing between principals have been treated as instantaneous,194 but there is uncertainty where third parties are involved in the transmission or receipt of such messages. In Express Airways v Port Augusta Air Services195 Douglas J held that an acceptance sent from a post office into the telex system of the offeror is effected at the place where the message is received by telex and not the post office from which it was sent. This decision seems to be contrary to the reasoning of the House of Lords in Brinkibon Ltd v Stahag Stahl Gmbh196 which suggests that, if intermediaries are used, the instantaneous rule does not apply, and was not followed in Leach

Nominees Pty Ltd v Walter Wright Pty Ltd.197 3.61 As regards contracts concluded by way of email or on the Internet, it is submitted that the rules relating to instantaneous communications apply despite the use of intermediate servers. Since such servers could be situated anywhere in the world, the application of the law of their place of location would lead to arbitrary results. This would mean that the place where a contract concluded by email is made is the place where the offeror receives the message of acceptance on its computer, a conclusion accepted by Logan J in Olivaylle Pty Ltd v Flottweg GmbH (No 4)198 as justified even if ‘at the expense of scientific precision’. In the [page 56] case of the acceptance of an offer made on the Internet, the place of contracting is the place where the acceptance of the offer is received; that is to say, the place of the computer to which acceptance is directed, and not the place where the consumer ‘clicked’.199 3.62 The exact place from where the message originated or where it was received will not always be known, or it may be fortuitous, as in the case where the recipient receives the message during travel. However, for the purposes of applying the laws of the Commonwealth and each of the states and territories, the provisions of the Electronic Transactions Act 1999 (Cth) which largely follow the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Transactions, and similar legislation in the states and territories200 will apply. Under s 14(5) of the Commonwealth Act, unless the parties otherwise agree, an electronic message is taken to have been dispatched at the place where the originator has its place of business and to have been received at the place where the addressee has its place of business. Under s 14(6) of the Commonwealth Act, if there is more than one place of business, the place of business most closely connected will apply. If such place cannot be determined, the principal place of business is to be regarded as the sole place of business. If a party has no place of business, the reference will be to that person’s place of ordinary residence. 3.63 In the case of an obligation in quasi-contract the place of ‘making’ is the place where the obligation first arose. Thus, in the case of a liability to pay stamp duty the obligation arises on the execution of the document liable to duty,

if it is executed within the jurisdiction, or when it is first received within the jurisdiction, if it is executed outside the jurisdiction.201 In the case of a statutory indemnity by a third party insurer in respect of damages due under a judgment entered against the insured, the obligation arises in the place where judgment is entered.202 3.64 An interesting question arises if the agreed terms provide that a binding contract does not come into existence unless a document is signed or executed. Is the contract in that case ‘made’ in the place where the offer or counter offer constituting the terms are agreed upon was accepted, or is it the place where the document was signed or act was done which made it a binding obligation? The Supreme Court of Canada in Imperial Life Assce Co of Canada v Colmenares203 took the former view. However, that decision was distinguished by Brownie J of the Supreme Court of New South Wales in John Kaldor Fabricmaker Pty Ltd v Mitchell Cotts Freight (Aust) Pty Ltd.204 His Honour there held that where the subsequent act to be performed is [page 57] not a mere formality but consists, for example, of the supply of information vital to the contract, it is the latter place where the contract is ‘made’. 3.65 A provision in the contract that it shall be deemed to have been made in a certain country does not preclude the court from determining where it was actually made.205 Such a provision is not uncommon in transnational contracts where counterparty copies of the contract may be signed. 3.66 In all jurisdictions, it is further provided that jurisdiction exists if the contract is made on behalf of the defendant by or through an agent carrying on business or residing in the forum.206 The agent need not have authority to bind the principal; it is enough if they are employed as a conduit to obtain orders locally and transmit the same to the principal, who eventually accepts them,207 but they cannot be the agent of the plaintiff.208 In Commonwealth Bank of Australia v White,209 Byrne J noted that the words ‘by’ and ‘through’ showed that this jurisdictional sub-head covered not only cases where the contract is made by an agent who has power to bind the principal but also those cases where the contract is made by the principal through the efforts and intervention of the local agent.

Contract governed by the law of the forum 3.67 This is a ground authorising proceedings against an absent defendant in all jurisdictions. The words ‘governed by the law of the forum’ mean that the proper law of the contract must be the law of the forum.210 For a discussion of the principles relevant to identifying the governing law of a contract, reference should be made to Chapter 19 below. A difficulty may arise where the contract is subject to more than one proper law. This may happen where particular obligations are, under the law of the contract, to be governed by a law other than the law governing the remaining obligations of the contract. In Weckstrom v Hyson,211 McInerney AJ suggested that in such a case leave could not be granted unless the particular issue litigated between the parties was governed by the law of the forum.212 Another view is that for the purposes of granting leave to serve out of the jurisdiction, the whole contract—as a single entity—should be governed by the law of the forum and that service out [page 58] should not be permitted on this ground if any part of the contract is governed by a law other than the law of the forum.213

Contract breached within the jurisdiction 3.68 This is a ground authorising proceedings against an absent defendant in all jurisdictions.214 In most cases the place of breach will be easy enough to determine, particularly where it consists of a positive act of misfeasance. In a few rare cases the misfeasance may involve more than one country, such as where a letter of repudiation is sent from one country to another. The New South Wales Court of Appeal held in Safran v Chani215 that ‘where repudiation is claimed to have been effected by the posting of a letter or the sending of a cable or telegram, the place of posting or sending is the place where the act of repudiation took place and hence where the breach of contract occurred’. If made by telephone, the breach takes place where the words are spoken;216 if made by telex message the breach takes place where the telex is sent.217 Analogy would suggest that, in the case of facsimile and email, the place of dispatch would also be regarded as the place of breach. 3.69 Where a contract is repudiated by one party before completion of their obligation, another difficulty arises. At common law the plaintiff upon

repudiation has the option of either treating the contract as being at an end or of waiting until the time appointed for performance has expired. In Weckstrom v Hyson,218 a promise to marry the plaintiff in Melbourne was repudiated by telegram sent from Darwin in the Northern Territory to the plaintiff in London. McInerney AJ assumed that the plaintiff having accepted the defendant’s repudiation in London, no breach of the contract took place in Victoria. On that view the locality of the place of breach depends on whether the plaintiff has or has not accepted the repudiation. However, the New South Wales Court of Appeal in Safran v Chani219 took the view that the locality of breach in no way depended on the question of acceptance. On this view, which, it is submitted, is the better one, there is a primary breach where the repudiation occurred and a secondary breach where the performance was stipulated. 3.70 Where the breach consists of non-feasance, the place of the breach is the place where the obligation in question is due to be performed.220 This is a matter [page 59] for interpretation depending on the express or implied intention of the parties, the customs of the trade or the particular type of contract involved.221 Where the breach is non-payment of a debt, the place of performance is the place where the payment is to be made.222 If no such place is prescribed, the court must construe the contract, taking into account as one of the relevant factors the residence or place of business of the creditor. But the rule that the debtor must seek out the creditor is not automatically applied, especially where the creditor has more than one place of business.223 The rule that a debtor is excused from payment if the creditor leaves the jurisdiction without appointing a place for payment therein does not apply in this context.224 3.71 This sub-head also includes quasi-contractual obligations. The failure to perform such obligations occurs when payment is not made at the place of residence or business of the person to whom the debt is due.225 Thus, in the case of an action by a liquidator to recover a preferential payment—an action characterised by Ipp J as giving rise to a quasi-contractual obligation to repay— the ‘breach’ for jurisdictional purposes was treated as having occurred in the jurisdiction where the liquidator was resident.226 In the case of a statutory debt this is the office of the relevant government authority.227 3.72 There must have been a definite obligation to perform the contractual

obligation within the jurisdiction. It is not enough that the defendant had the option of performing the contract within the jurisdiction or elsewhere if, at the time of the breach, he or she had not yet made an election.228 In all jurisdictions, it is not necessary that the whole breach occurs within the jurisdiction. It will suffice if a consequential breach occurs within the forum; for example, the dismissal of a local employee on the instructions of an overseas head office.229 In all jurisdictions the proceeding must be one ‘in respect of’, or ‘founded on’ or ‘based on’ a breach of contract. Such words have been given a broad interpretation and the action need not lie for breach of the contract itself. In South Adelaide FC v Fitzroy FC (No 1),230 Lunn AJ held that it covered an action for the tort of inducing a breach of contract. It did not matter where the tort was committed as long as the breach of contract took place in the forum. [page 60]

Tort 3.73 All jurisdictions provide for service out of the jurisdiction if the proceedings are ‘founded on’ or ‘based on’ a tort committed within the forum.231 The practical significance of the inquiry into where the tort was committed has been considerably diminished in all jurisdictions except Western Australia. Except in Western Australia, service outside Australia is permitted when damage is suffered wholly or partly within the jurisdiction as a result of a tort, wherever it occurred.232 Service outside Australia is permitted under this provision when the plaintiff has suffered or continues to suffer within the forum any compensable damage caused by the tort, including economic loss.233 Thus, where a plaintiff is physically injured whilst abroad but returns to New South Wales and receives treatment there, for example, that plaintiff will be treated as having suffered damage in New South Wales. Damages for hurt, humiliation or embarrassment will be suffered or continue to be suffered where the plaintiff is resident, even if, in the case of defamation, for example, the relevantly defamatory publication took place in a jurisdiction other than that of the plaintiff’s residence.234 In this context, the word ‘damage’ comprehends the widest range of loss and harm that may fairly be contemplated as being compensable in an action in tort.235 In AMP Soc v GEC Diesels Australia Ltd,236 a Full Court of the Supreme Court of Victoria held that a claim for contribution against a third party by a defendant, who was being sued in respect of damage

allegedly suffered by the plaintiff in Victoria, fell within the scope of the provision even though the defendant/ claimant could not be said to have suffered any damage until and unless it was held to be liable to the plaintiff. 3.74 Only in Western Australia does the place of the tort remain significant (although it does, in the other jurisdictions, provide an alternative means of justifying service outside Australia). As regards locating the place of the tort or cause of action arising in tort, it is submitted that all provisions have basically the same meaning; namely that ‘the act on the part of the defendant which gives the plaintiff his cause of action [page 61] must have occurred within the jurisdiction’.237 The questions of where the act took place and whether it constitutes a tort must be determined according to the law of the forum.238 Where that act has occurred depends on the particular cause of action. The accepted test is that laid down by Lord Pearson in the Privy Council appeal from New South Wales in Distillers Co (Biochemicals) Ltd v Thompson:239 The right approach is, when the tort is complete, to look back over the series of events constituting it and ask the question: where in substance did the cause of action arise?

The mere fact that damage is suffered within the jurisdiction is not sufficient to locate the tort there, even in the tort of negligence where damage is the gist of the action; there must be an act or omission on the part of the defendant within the forum.240 The effect of that rule was modified somewhat by the holding of the Privy Council in the Distillers case that a negligent omission to warn of dangerous side effects of a drug manufactured in the United Kingdom occurred at the point of sale to the consumer in New South Wales. Thus, if the plaintiff complains that defective goods were sold to him or her within the forum without a warning as to defects or risks, the tort is committed within the jurisdiction.241 A similar tendency to stress the place of impact rather than the place of acting is seen in relation to other torts. 3.75 As regards defamation, it has consistently been held that the place of wrong is the place where the defamatory material was published and received, not where it was written or spoken.242 In Dow Jones & Co Inc v Gutnick,243 allegedly defamatory comments about a Melbourne businessman were posted on the Internet website of the Wall Street Journal in the United States. The

comments were read by subscribers in Victoria, among many other places. The High Court of Australia held that the defamation (if any had occurred) took place in Victoria, where the comments were read, not the United States, where they were written and posted on the Internet. The High Court rejected the defendant’s argument that a special rule was necessary for Internet publication, so as to avoid the consequence that publishers of material on the Internet could find themselves subject to the law of every country in the world from which access to the Internet can be made. Gleeson CJ, McHugh, Gummow and Hayne JJ said that for the purposes of the law of defamation, publication is a [page 62] bilateral act, in which the publisher makes information available and the reader (or viewer or listener) has it available for his or her comprehension.244 3.76 As regards misrepresentation, it was held in Diamond v Bank of London and Montreal Ltd245 that the misrepresentation took place where the message was received and acted upon. The same principle was applied in relation to a negligent misrepresentation sent by telex from abroad and received and acted upon in the forum.246 However, the majority of the High Court in Voth v Manildra Flour Mills Pty Ltd247 qualified the English authorities: if the statement is directed from abroad at a recipient in the forum and intended to be acted upon there, as in Diamond, the tort is committed in the forum;248 but where, as in Voth, the representation is made abroad to a local recipient, the tort is committed there, even though it was acted upon in the forum and caused damage there. 3.77 As regards the tort of inducing a breach of contract, in Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc,249 a choice-of-law case, the English Court of Appeal held that the substance of the tort occurred in England where the breach of contract took place, and not in New York where the instructions to commit the breach were initiated. However, in South Adelaide FC v Fitzroy FC (No 1),250 Lunn AJ came to the opposite conclusion, assuming that the tort took place in Victoria where an Adelaide-based football player was induced to break his contract. The approach taken by the English Court of Appeal appears to be in accordance with the majority view in Voth, namely that a cross-border tort is committed in the place to which it is directed and intended that it should be acted upon.

Statutory actions for misleading or deceptive conduct 3.78 Actions alleging breach of the misleading and deceptive conduct provisions of the Australian Consumer Law (formerly s 52 of the Trade Practices Act 1974 (Cth) or its analogues in the Fair Trading Acts of the various states) have become increasingly important in practice. 3.79 The Federal Court Rules contain provisions mirroring the tort rules for breaches of statute. Rule 10.42 item 12 permits service outside Australia of proceedings ‘founded on a breach of an Act’ if the breach occurs in Australia.251 Rule 10.42 item 13 permits service out of proceedings ‘in relation to damage suffered wholly or partly in Australia’ as a result of breach of an Act, wherever occurring. Like its tort counterpart, this should authorise service outside Australia if the [page 63] plaintiff suffered or continues to suffer within the forum any physical, financial or social consequences of a breach committed abroad.252 3.80 As noted at 3.44 above, the Australian Capital Territory, New South Wales, Queensland and Tasmania permit service out of the jurisdiction of any proceeding founded on a cause of action arising in the jurisdiction.253 These rules would permit service outside Australia of a claim for breach of the misleading and deceptive conduct provisions of the Australian Consumer Law or their state equivalents arising within the jurisdiction.254 For these purposes, ‘cause of action’ does not mean all elements of the cause of action, but rather the act on the part of the defendant which gave the plaintiff his or her cause of complaint.255 For example, by analogy with the cases on tortious misrepresentations, it has been held that a misleading or deceptive statement occurs where the statement is received.256 Accessorial claims in relation to misleading or deceptive conduct, as with primary claims, require that some conduct of the accessory must have occurred in Australia, and that this must be pleaded.257 3.81 The South Australian rules permit service outside Australia of an action ‘brought under a statute of the Commonwealth or the State’,258 which plainly permits service of statutory actions for misleading or deceptive conduct. In the Australian Capital Territory, service outside Australia is permitted if the

proceedings concern the interpretation, effect or enforcement of ‘an ACT law’.259 There are similar provisions in New South Wales, Queensland and Tasmania that refer simply to ‘an Act’, but it is questionable, both in light of the Interpretation Acts of the respective states and ejusdem generis principles of statutory interpretation, whether the reference to ‘an Act’ is capable of extending to a Commonwealth statute or a [page 64] statute of another Australian polity. If this be correct, the rules of these jurisdictions involve a major lacuna.260 3.82 In the Northern Territory, Victoria and Western Australia, there are neither special rules for statutory claims nor any general provision permitting service outside Australia in relation to causes of action arising within the jurisdiction. In those three jurisdictions, it seems that the only possible basis for service outside the forum of a statutory claim for misleading or deceptive conduct would be the tort rules, on the basis that in many respects such actions have been held to be tortlike.261 In Williams v The Society of Lloyd’s,262 McDonald J of the Supreme Court of Victoria refused to accept that argument, saying that the remedy for breach of s 52 is a statutory remedy (damages under s 82) and a ‘tort’ for these purposes is an action for a common law remedy, whether the right be given by statute or common law.263 However, in Commonwealth Bank of Australia v White,264 Byrne J of the Supreme Court of Victoria held exactly the opposite, saying that for these purposes ‘a claim in tort’ may arise under statute as well as at common law. What little authority there is from other jurisdictions supports Byrne J.265 In Commonwealth Bank of Australia v White (No 4),266 Warren J declined an invitation by counsel to prefer McDonald J’s view to that of Byrne J, although Warren J did not need to reach a final decision on the issue in question. Although strict principle favours McDonald J’s view, commercial convenience clearly favours Byrne J’s view, which was adopted in Mallon Lawyers v Gam.267 Litigants in Western Australia have also sought to circumvent this perceived lacuna by commencing proceedings involving a Commonwealth statutory claim in the Federal Court of Australia, and then seeking to have such proceedings cross-vested to the Supreme Court of Western Australia.268

Construction and enforcement of statutes and delegated legislation

generally 3.83 As noted at 3.79 and 3.81 above, the Federal Court and the Supreme Court of South Australia permit service outside Australia of actions brought under state or federal legislation and the Australian Capital Territory permits service out of proceedings concerning the interpretation, effect or enforcement of ‘an ACT law’, which includes a statutory instrument.269 In the Federal Court, the rules extend to regulations, other instruments having or purporting to have effect under an Act, and executive, ministerial or administrative acts done or purporting to be done under [page 65] an Act or regulation or other instrument having or purporting to have effect under an Act.270

Defendant domiciled or ordinarily resident in the jurisdiction 3.84 All jurisdictions permit service out of the jurisdiction against a defendant who is domiciled or ordinarily resident in the jurisdiction although temporarily absent.271 In the Australian Capital Territory and the Federal Court, specific provision is made for corporations incorporated or carrying on business in the jurisdiction.272 In the other jurisdictions, a corporation can be ‘resident’ within the jurisdiction,273 even though it may be resident in another jurisdiction as well.274

Defendant submitted to the jurisdiction 3.85 In all jurisdictions except Western Australia, provision is made for serving a party who has submitted to the jurisdiction.275 These provisions allow service to be effected in cases where the agreement does not stipulate a method of service.276

Defendant a necessary or proper party; claims for contribution or indemnity 3.86 All jurisdictions provide for service outside the jurisdiction on a person

who is a necessary or proper party to an action begun against a person served within the jurisdiction.277 Service is not authorised under this rule when the first defendant (that is, the defendant not to be served under the ‘necessary or proper party’ rule) is served outside Australia and submits to the jurisdiction by entering an unconditional appearance, because in such a case the first limb of the rule is not satisfied.278 In determining whether the defendant to be served outside Australia is a ‘proper party’ for these purposes, the court should first ask whether the local defendant has been properly joined, then determine whether the proposed foreign party would have been a proper party to the proceeding if it had been within the [page 66] jurisdiction.279 The rules of court about joinder of parties provide a good guide to answering the second question.280 3.87 In the Northern Territory, South Australia and Victoria, service is also authorised on a person who is a necessary or proper party to an action brought against a person properly served outside the jurisdiction.281 However, if the first defendant is served outside Australia and waives compliance with the serviceout rules, there can be no service outside Australia on another defendant as a ‘necessary or proper party’.282 In such a case, the action has not been properly brought against the first defendant for the purposes of the ‘necessary or proper party’ rule.283 3.88 Before a foreigner is joined as a party to a local action, the court must take special care. As Speight J said in Pratt v Rural Aviation (1963) Ltd:284 There is an obligation upon the Court before an order is made to scrutinise the cause of action as to its bona fides and the chances of success both as to the propriety of suing the local defendant and the degree of involvement of the intended foreign defendant.

This means that the plaintiff must have a bona fide action against both defendant parties. The plaintiff is not entitled to sue someone within the jurisdiction who clearly is not liable for the injury suffered by the plaintiff merely in order to bring an absent party, who may be liable, into the jurisdiction,285 but if there is an arguable cause of action, the fact that the decision to sue the local defendant is predominantly due to a desire to reach a better funded foreign defendant is no objection.286 Proceedings are properly brought against the local defendant so long as they are not doomed to failure and

the claim is genuine, in the sense that it is brought with the intention that it be prosecuted to finality, whether or not the defendant might be unable to satisfy any ultimate judgment.287 If the foreign party has a good defence in law to the action, it is not a ‘proper party’.288 The liability of the parties need not be joint; it is enough if they arise out of the same transaction or series of transactions.289 3.89 In Gilchrist v Dean290 it was held that a third party notice in which a defendant claims contribution from a third party by virtue of a statute or contract does not come within the scope of the ‘necessary or property party’ rule, which is to be [page 67] confined to the joinder of co-defendants to the principal proceedings. The same has been held to apply to a cross-claim by a defendant against a third party.291 3.90 The difficulties caused by Gilchrist v Dean have been overcome by amendments to the rules in each jurisdiction except South Australia and Western Australia. In the Federal Court, the Australian Capital Territory, New South Wales, Queensland and Tasmania, the rules permit the joinder of a foreign party by service out of the jurisdiction without prior leave ‘where the proceedings are for contribution or indemnity in respect of a liability enforceable by proceedings in the court’.292 In Victoria and the Northern Territory, service of a third party claim for indemnity or contribution under statute or contract is permitted with prior leave of the court.293 As a Full Court of the Supreme Court of Victoria explained in AMP Society v GEC Diesels Australia Ltd:294 This was designed to permit the court to allow service out of third party proceedings where the justice of the matter required service of a claim which did not technically come within the paragraphs of r 7.07(1) because of difficulties such as arose in Gilchrist v Dean.

Property within the jurisdiction 3.91 In the Federal Court, the Australian Capital Territory, New South Wales, Queensland and Tasmania provision is made for service out of the jurisdiction where the subject matter of the proceedings is property within the jurisdiction.295 In South Australia service out is authorised where the claim relates to ‘real or personal property in the State’.296 In Western Australia, the equivalent provision authorises service out when the subject matter of the action is ‘land … or other

property situate within the State’.297 In Victoria and the Northern Territory, the equivalent provisions are confined to land within the jurisdiction.298 In the Federal Court, the Australian Capital Territory, New South Wales, Queensland, Tasmania and Western Australia, the rules authorise service outside Australia of a proceeding for obtaining evidence for a future claim about property in the jurisdiction or perpetuating testimony relating to property within the jurisdiction.299 [page 68] 3.92 It is also a ground for service out of the jurisdiction in the Federal Court, the Australian Capital Territory, New South Wales, Queensland and Tasmania that the proceedings concern the construction, effect or enforcement of, any Act, deed, will or other instrument, or of a contract, obligation or liability affecting property within the jurisdiction.300 In South Australia, the equivalent provision refers to ‘the interpretation of an instrument or the terms of a transaction affecting real or personal property in the State’.301 In Victoria, Western Australia and the Northern Territory special provision is made to permit service abroad in respect of an action for foreclosure on a mortgage of personal property.302 3.93 The courts have generally interpreted these provisions restrictively. It is obvious that land or property is only the subject matter of an action if what is in issue is the right to ownership or possession of the land or property, such as an action for ejectment, or foreclosure of a mortgage. But in relation to proceedings affecting land or property, it has been held that the action brought must have some direct effect on the property itself, its possession or title.303 It is submitted that this interpretation gives the word ‘affecting’ too narrow a scope.304 In South Australia the words ‘relates to’ have been held to have the same restrictive meaning.305 3.94 The line is sometimes difficult to draw. In Agnew v Usher306 the English Court of Appeal held that an action for the recovery of rent on a lease of premises in England did not fall within the equivalent provision, because the obligation to pay was personal, flowing from the contract between the parties and not an obligation affecting land. On the other hand, it has subsequently been held that an action by a tenant against his landlord to recover compensation for improvements due by local custom,307 and the action of an assignee of a lease on a covenant to repair,308 fall within the ambit of this provision. In Muusers v State

Government Insurance Office (Qld)309 Rogers J preferred the narrower interpretation in Agnew v Usher and held that a contract of insurance does not affect the property insured. Neither does a royalty agreement on oil produced in Bass Strait affect property.310 3.95 In relation to property other than land it has been held in the New Zealand case of Pilkington v McArthur Trust Ltd (No 2)311 that an action to enforce a deed executed in New Zealand whereby it was agreed to transfer certain debentures held in that country was an action to enforce a deed affecting property within the jurisdiction. On the other hand, in William Cable & Co Ltd v Teagle Smith & [page 69] Sons Ltd312 it was held that in an action for breach of contract in respect of certain machinery in New Zealand, the true subject matter of the action was a breach of contract and not the machinery. 3.96 In Queensland it has been held that an action to recover local rates charged upon the land comes within the relevant provision,313 but it would seem that a tax imposed as a personal obligation, even though by reference to the ownership of land or dealings with land, would not come within the provision.314 As discussed at 3.93 below, special provision exists in respect of taxes in the Australian Capital Territory, Queensland and Western Australia.

Injunctive relief 3.97 All jurisdictions permit service out of the jurisdiction where an injunction is sought to compel or restrain the performance of any act within the jurisdiction.315 The main purpose of this provision is to allow the court to give relief locally in respect of acts done within the jurisdiction, even though the acts are directed from abroad and may occur in more countries than the forum316 However, the rule must not be used as a subterfuge to bring within the jurisdiction some matter or dispute that is not otherwise connected with the jurisdiction.317 The injunction has to restrain the defendant from doing something within the forum which amounts to an infringement of the plaintiff’s rights there and which is enforceable by a final judgment for an injunction.318 Following Cardile v LED Builders Pty Ltd319 and the High Court’s

characterisation of what was traditionally styled a Mareva injunction as a ‘freezing order’, it may be doubted whether this head of jurisdiction could be relied upon to authorise service out of the jurisdiction or a defendant against whom a freezing order was sought.

Administration of estates 3.98 All jurisdictions except the Federal Court (and the High Court) provide for service out of the jurisdiction in proceedings for the administration of the estate of a person who dies domiciled in the jurisdiction.320 This provision would permit the court to assume jurisdiction to make an order for the administration of the estate (as opposed to a grant of probate) on the sole ground that the deceased died domiciled [page 70] within the jurisdiction, even though there was no property or personal representative within the forum. It would seem that such jurisdiction would be exercised rarely. 3.99 All jurisdictions except the Federal Court (and the High Court) and South Australia also provide for service out of a proceeding for ‘relief that might be obtained in a proceeding for the administration of a person who died domiciled’ in the relevant jurisdiction.321 Such relief might include, for example, an injunction to restrain a party from taking foreign proceedings in respect of foreign assets of the estate of a person who died domiciled in the jurisdiction.322 South Australia permits service out if the action is brought in a probate action relating to the will or testamentary intentions of a person who died domiciled in the state or who made a will or expressed testamentary intentions in circumstances governed by the law of the state.323

Trusts 3.100 All jurisdictions provide for service out of the jurisdiction in proceedings for the execution of trusts that are governed by the law of the forum.324 Except in the Federal Court, New South Wales, South Australia and Tasmania, the jurisdiction is limited to trusts of property situated within the jurisdiction. This has been interpreted as requiring that there be at the time when service out of the

jurisdiction is sought some property affected with the trust still in the jurisdiction. If the trustee leaves the jurisdiction with the trust property or the proceeds of sale thereof before the suit is commenced, no leave can be granted under this sub-head.325

Actions against air carriers 3.101 In the Northern Territory, Victoria and Western Australia, specific provision is made for service out of the jurisdiction when an action is brought under the Civil Aviation (Carriers Liability) Act 1959 (Cth).326 In the Australian Capital Territory and Queensland, service out is permitted only if the proceeding is brought by a resident of the jurisdiction or in relation to damage that happened in the jurisdiction.327 Although there are no similar specific provisions in the Federal Court and Tasmania, service out would be permitted in those jurisdictions by virtue of the general provisions permitting service out of actions brought under state or federal legislation.328 [page 71]

Corporations and associations 3.102 In the Federal Court, the Australian Capital Territory, New South Wales, Queensland and Tasmania, the rules authorise service outside Australia of proceedings affecting the person to be served in relation to that person’s membership of or office in a corporation incorporated in the jurisdiction329 or an unincorporated association or organisation formed or doing business there.330 In the Federal Court, the Australian Capital Territory and Tasmania, the rule includes corporations carrying on business in the jurisdiction even if not incorporated there.331 The equivalent rule in Western Australia is more restricted. It provides for service out of the jurisdiction where the subject matter of the action, so far as it affects the person to be served, is any share or stock in a corporation having its principal place of business within the state.332 This means that the shares or stock must be the subject matter of the action. Thus, an action that merely concerns shares, such as an action to recover stamp duty payable on a share transfer, does not fall within the rule.333

There are no provisions dealing specifically with corporations in the Northern Territory, Victoria or South Australia.

Taxes 3.103 In Western Australia, provision is made for service out of the jurisdiction in respect of taxes or duty which have been imposed or become due ‘on or in respect of property situated within the jurisdiction’.334 In Deputy Commissioner of Taxation v Dunn,335 this provision was construed as permitting service out of the jurisdiction of notice of a writ claiming payment of income tax general interest charge and administrative penalties.336 The Australian Capital Territory and Queensland permit service out of the jurisdiction where the plaintiff seeks to recover an amount payable under a statute of the forum to an entity in the jurisdiction.337 This will cover not only taxes but other rates and charges due to public authorities in that jurisdiction. [page 72]

Arbitration 3.104 The Federal Court rules provide for service outside Australia of proceedings in relation to an arbitration carried out in Australia,338 as well as proceedings for an order under Div 28.5 in relation to an arbitration under the International Arbitration Act 1974 (Cth).339 Similarly, Queensland permits service out of proceedings relating to an arbitration held in Queensland.340 The Australian Capital Territory, New South Wales and Tasmania have more farreaching provisions, permitting service out of the jurisdiction where the proceedings: (i)

relate to an arbitration held in, or governed by the law of, the jurisdiction; or

(ii) are brought to enforce in the jurisdiction an arbitral award wherever made; or (iii) are for orders necessary or convenient for carrying into effect in the jurisdiction the whole or any part of an arbitral award wherever made.341 South Australia makes provision for service out of proceedings for

enforcement of an arbitral award.342 There are no provisions relating to arbitration in the Northern Territory, Victoria or Western Australia.

Enforcement of foreign judgments 3.105 In the Australian Capital Territory, New South Wales, South Australia and Tasmania, the rules make provision for the service of process outside the jurisdiction of proceedings to enforce a foreign judgment.343 This overcomes the problem caused by the rule that any action at common law to enforce a foreign judgment is a new action which requires service upon the judgment debtor.344

Custody of minors and others with legal disabilities 3.106 In the Federal Court, New South Wales, the Northern Territory, Tasmania and Victoria provision is made for service out of the jurisdiction when the proceedings are for the custody, guardianship, protection or welfare of a minor.345 In the Australian Capital Territory, the Northern Territory, Queensland and Victoria, there are similar provisions extending to any person under a legal incapacity or incapable of managing their affairs, although in the Australian Capital Territory and Queensland that person must be domiciled or present or resident in the [page 73] jurisdiction.346 However, in all cases (except in the Federal Court) the relief sought must be within state or territory jurisdiction which is now very limited.

Residual clause 3.107 In the Australian Capital Territory and Queensland, it is sufficient that the proceeding falls partly within one or more of the paragraphs authorising service out.347 The same is true under O 8 r 2 of the Federal Court Rules, which permits service outside Australia of ‘a proceeding which consists of, or includes, any one or more of the kinds of proceeding mentioned in the following table …’ (emphasis added).348 Similarly, the Tasmanian rules permit service out ‘where the proceedings fall either wholly or partly into one or more of the following

cases …’ (emphasis added).349 Thus, there can be service outside Australia of a proceeding made up of at least one claim that falls within the enumerated heads and one or more claims that do not. 3.108 In New South Wales, the rules provide for service out of the jurisdiction where the proceedings, so far as concerns the person to be served, fall partly within one or more of the paragraphs authorising service and as to the residue within one or more of the other paragraphs350 Thus, there cannot be service outside Australia of a proceeding made up of some claims that fall within the enumerated heads and one or more claims that do not.351 3.109 As noted at 3.40 above, the general principle is that the several paragraphs authorising service out of the jurisdiction must be read independently and disjunctively.352 Thus, if a cause of action falls partly within one paragraph and partly within another, service cannot be authorised under either. That is still the position in the Northern Territory, South Australia, Victoria353 and Western Australia. [page 74]

Submission 3.110 An alternative method whereby a foreign defendant may come within the jurisdiction of the court is by voluntary submission to the jurisdiction of the court. This can be done in a variety of ways.

By agreement in advance 3.111 The parties may agree in their contract that in the case of a dispute a specified court or the courts of a specified country shall have jurisdiction. Such an agreement must be in express terms.354 Submission by itself does not overcome the problem of serving a defendant out of the jurisdiction. Unless the contract specifies a method by which a party can be served with process, authority to serve out of the jurisdiction must be sought under one of the heads specified in the relevant court rules.355 However, as noted above at 3.85, in all jurisdictions except Western Australia, provision is made for serving outside Australia on a party who has submitted to the jurisdiction.356 The agreement may specify a place for service within the jurisdiction in which case service will

be effective even if the defendant never received actual notice.357 Or the agreement may indicate a place for service abroad. 3.112 A defendant may also submit in advance of proceedings by instructing solicitors to accept service on their behalf.358

By appearing or taking steps in the proceedings 3.113 After proceedings have been instituted, a defendant may decide to appear and contest the case on its merits. In that case the defendant will be deemed to have submitted to any judgment the court may make.359 Submission may take place by any conduct that is inconsistent with a protest against the jurisdiction.360 Thus, submission takes place if the defendant files an unconditional appearance in a jurisdiction where the rules provide methods for setting aside a writ without entering an appearance,361 or files a conditional appearance and moves to set aside the writ [page 75] or service thereof but fails.362 There is no need to file an appearance in the Northern Territory, New South Wales, Tasmania, Victoria or Western Australia in order to move for service to be set aside,363 and the Federal Court Rules provide that an application to set aside service of originating process must be made at the same time as the respondent files a notice of address for service.364 The defendant also submits by seeking interlocutory relief which is only consistent with an intention to contest the merits before entering an appearance.365 Conversely, the defendant submits if he or she does not object to the jurisdiction when objecting to the plaintiff’s application for interlocutory relief, such as a Mareva order.366 3.114 There must be some conduct in the proceedings by or on behalf of the defendant that is inconsistent with an objection to jurisdiction; a mere failure to object at the first opportunity does not amount to a submission.367 Similarly, an application for a stay of proceedings has been held not to amount to a submission.368 3.115 A defendant who appears only to protest the jurisdiction of the court does not submit to the jurisdiction of that court.369 Nor does a defendant submit by indicating that if submissions as to jurisdiction fail, attempts will be made to

strike out the claim on bases that go to the merits of the case.370 It was said by Smith J in Lindgran v Lindgran371 that a defendant who has unsuccessfully argued the issue of jurisdiction at first instance is not precluded from arguing the matter on appeal even though in the court below that defendant proceeded to argue the merits after the jurisdictional objections had been rejected. But Sholl J in Colbert v Tocumwal Trading Co Pty Ltd372 expressed doubts about the correctness of this view.

By bringing action as plaintiff 3.116 A foreign plaintiff who brings action within the jurisdiction submits thereby to any defence by way of counter-claim or by way of set-off or crossclaim as well as to any action by way of counter-claim arising out of the same subject matter, whether based on the same cause of action or not, even if such a claim could result in a judgment against the plaintiff exceeding the plaintiff’s claim.373 But the plaintiff [page 76] does not thereby submit to claims arising outside of and independent of the subject matter of the plaintiff’s action.374

Foreign Land 3.117 As noted at 3.1, where proceedings involve foreign land and questions relating to the title of foreign land, a series of special principles exists with regard to questions of jurisdiction, whether or not the defendant to the proposed proceedings is a foreign or a local defendant. 3.118 The modern rule denying jurisdiction in respect of land situated abroad stems from the decision of the House of Lords in British South Africa Co v Companhia de Moçambique.375 This case is now regarded as authority for two propositions: (1) an English (and Australian) court will not exercise jurisdiction in respect of the title to, or possession of, land situated abroad; and (2) the court will not entertain an action for trespass to foreign land even if the plaintiff’s title is not in issue.376 These rules still apply as part of the common law in all Australian jurisdictions other than in New South Wales and (to a limited extent)

the Australian Capital Territory.377 3.119 The first proposition is based on the sensible principle that only the court of the place where the land is situated can effectively enforce an order as to title and/or possession. It was accepted by the High Court of Australia in Potter v Broken Hill Pty Co Ltd378 where it was extended with debatable analogy to foreign patents. It has been applied as between the Australian states and territories. In Inglis v Commonwealth Trading Bank379 the Supreme Court of the Australian Capital Territory was asked to make a declaration that the defendant bank had no power of sale over, and no power to deal with, land situated in Tasmania which the plaintiffs had mortgaged to the defendant. Woodward J held that the declaration sought by the plaintiffs raised a question affecting the title to the Tasmanian land and following the Moçambique rule, that the forum lacked jurisdiction. If the matter had arisen after 1 July 1988, the Supreme Court of the Australian Capital Territory might have assumed jurisdiction under the crossvesting legislation.380 3.120 The first proposition was applied by the Supreme Court of Queensland in Elder v Queensland381 and Jones v Queensland382 to justify the court’s refusal to hear Aboriginal native title claims to the sea and seabeds beyond three nautical miles [page 77] from the coast of Queensland. The court held that because the plaintiffs’ claims concerned title to or possessory rights over underwater land beyond the territory of Queensland (which ended at three nautical miles from the shore),383 they were beyond the jurisdiction of the court by virtue of the first part of the Moçambique rule. 3.121 The second proposition was considered by the House of Lords in Hesperides Hotels Ltd v Muftizade.384 In that case the plaintiff company had been dispossessed of its hotel on the north coast of Cyprus as a result of the Turkish invasion of that island in 1974. Turkish Cypriot interests were trying, in England, to organise holiday tours to the hotel. The plaintiff sued seeking damages against the defendant for conspiring to commit trespass, and seeking an injunction to restrain him from committing further trespasses to the hotel. The plaintiff’s title to the hotel was not in dispute and the plaintiff did not seek possession of the hotel. The House unanimously refused to depart from the rule

that no action could lie in England in respect of trespass to foreign land. Indeed, Lord Wilberforce385 went further and made it clear that any action which is based upon the plaintiff’s right of possession of foreign land whether framed in trespass, conspiracy to commit trespass or in negligence or nuisance, is outside the jurisdiction of the English courts. 3.122 The second proposition, which has been abolished by statute in England,386 still applies in Australia, other than in New South Wales and the Australian Capital Territory. In Commonwealth v Woodhill387 the plaintiff brought action in the Supreme Court of New South Wales to recover compensation for the resumption by the Commonwealth of certain land situated at Jervis Bay. The plaintiff’s action was brought under the Lands Acquisition Act 1906 (Cth), a federal statute which as such forms part of the law of New South Wales. The plaintiff did not dispute the validity of the resumption. Before the writ was issued but after the resumption, the area in which the land was situated was ceded by New South Wales to the Commonwealth. Although no question of title, possession or trespass was involved, the High Court applied the Moçambique rule and held that the New South Wales courts lacked jurisdiction at the time the writ was issued. 3.123 In Corvisy v Corvisy388 the plaintiff sought an order in the Supreme Court of New South Wales restraining the defendant from entering upon certain premises in Canberra. McLelland J389 declined to make the order sought, holding that the court had no jurisdiction in proceedings founded upon the title to or possession of real property outside its territorial jurisdiction. His Honour appears to have taken the view that the personal amenability of the defendant to the New South Wales court did not give him jurisdiction in that case. 3.124 In Dagi v BHP Co Ltd (No 2),390 the plaintiffs, citizens of Papua New Guinea, were affected by the discharge of by-products of a copper mine owned by the [page 78] Australian defendant into a river in Papua New Guinea. They sued in the Supreme Court of Victoria alleging trespass, nuisance and negligence. Byrne J held that the trespass and nuisance claims were not justiciable because of the Moçambique rule.391 Negligence claims that were based on the plaintiffs’ proprietary or possessory rights to the affected land and waters were also not

justiciable, for the same reason,392 but negligence claims based on the plaintiffs’ loss of amenity in or enjoyment of the land and waters were justiciable as they did not depend upon the plaintiffs showing title in or possession of the affected foreign land.393 In explaining this distinction, Byrne J said:394 [T]he court will refuse to entertain a claim where it essentially concerns rights, whether possessory or proprietary, to or over foreign land, for these rights arise under the law of the place where the land is situated and can be litigated only in the courts of that place. The claim must not merely concern those rights; it must essentially concern them. This is because the rights must be the foundation or gravamen of the claim.

3.125 On the other hand, in Re Clunies-Ross; Ex parte Totterdell395 French J (as he then was) sitting in the Federal Court in Perth made an order restraining the defendant who resided in Western Australia from disposing of or dealing with his interest in land situated in the territory of the Cocos (Keeling) Islands. His Honour based his jurisdiction on the residence of the defendant. Having regard to the dubious utility of the second proposition, the broader interpretation of French J is to be preferred. 3.126 The rule does not prevent actions being brought for trespass to chattels situated on the plaintiff’s land abroad,396 nor an action for the loss of sheep as the result of the negligent removal of a boundary fence in another jurisdiction.397

The position in New South Wales and the Australian Capital Territory 3.127 The Moçambique rule, in both its forms, has been abolished in New South Wales by the Jurisdiction of Courts (Foreign Land) Act 1989 (NSW). The Australian Capital Territory has abolished the second form of the rule (trespass and other actions relating to foreign land) but not the first (title to foreign land), by the Law Reform (Miscellaneous Provisions) Act 1955 (ACT) s 34. The New South Wales statute, which came into force on 5 October 1990, provides in s 3: The jurisdiction of any court is not excluded or limited merely because the proceedings relate to, or may otherwise concern, land or immovable property situated outside New South Wales.

3.128 Section 34(1) of the Australian Capital Territory statute, added with effect from 31 October 1995, is in very similar form. However, s 34(2) provides that s 34(1) does not empower a court to adjudicate upon title to, or right to the possession of, land or other immovable property situated outside the Territory. Thus,

[page 79] the Australian Capital Territory has preserved the first part of the Moçambique rule while abolishing the second. 3.129 Under s 4 of the New South Wales Act, the court may decline jurisdiction ‘if the court considers that it is not the appropriate court to hear the proceedings’. This language would support the inference that the test laid down by the High Court in Voth is to apply rather than a search for the more appropriate forum, which in most cases would be the situs.398 The inference that Voth principles are to be used is even clearer in the Australian Capital Territory, where the equivalent section (s 35) provides that the court is not bound to exercise jurisdiction if it considers ‘that it is an inappropriate forum in relation to those proceedings’. Under s 5 of the New South Wales Act, the provisions of the Act are to apply whether or not the cause of action has arisen before or after the commencement of the Act. There is no equivalent provision in the Australian Capital Territory.

Exceptions to the Moçambique rule 3.130 There are at least two exceptions to the rule and possibly a third.

The first exception: actions in contract or based on a personal equity between the parties 3.131 The Moçambique rule does not apply to actions arising out of a contract or a personal equity between the parties.399 The best known example of this exception, however, is the jurisdiction of courts of equity in personam in relation to foreign land against persons present within the forum in cases of contract, fraud and trust. This exception was established in the ancient case of Penn v Lord Baltimore.400 This case arose out of the dispute between the Lords Proprietor of Pennsylvania and Maryland respectively, concerning the boundary between their American possessions. They had previously settled their differences by an agreement made in England where both were at the time resident. In the agreement the defendant had undertaken to convey several counties to the plaintiff. In the present action the plaintiff sought specific enforcement of the agreement. To the defendant’s objection that the suit concerned land situated outside England, Lord Hardwicke LC replied that Equity

could act in personam against a defendant who was present before the court by ordering that he carry out the conveyance as agreed or face sanctions against his person or his English assets. The continued validity of this jurisdiction was reaffirmed by the English Court of Appeal in Richard West & Partners (Inverness) Ltd v Dick401 and more recently in R Griggs Group Ltd v Evans.402 Furthermore, it [page 80] has been held that a court has jurisdiction to determine whether an alleged trust in respect of foreign land exists.403 3.132 The court must have personal jurisdiction over the defendant. Traditionally the jurisdiction of the Court of Chancery to order a person to do something or to refrain from doing something depended upon the defendant being served within the jurisdiction. Today jurisdiction in equity can be exercised over a defendant who has been served out of the jurisdiction pursuant to the Civil Procedure Rules. For the purposes of the exception, such service is as effective as if the defendant had been served within the jurisdiction.404 3.133 In Nudd v Taylor,405 the Supreme Court of Queensland extended the principle to apply to a counterclaim made against a non-resident plaintiff for an equitable interest in the proceeds of sale of land in California. The court held that the foreign plaintiff had submitted to the jurisdiction by bringing his action in Queensland, and so was subject to the court’s equitable jurisdiction. Accordingly, the court held that it had jurisdiction to hear the counterclaim for equitable rights over the proceeds of sale of the Californian land. If a nonresident seeks to do any act relating to foreign land by means of an agent, who is within the jurisdiction, the court may prevent the agent from carrying out the act, even though it cannot reach his or her principal personally.406 3.134 Not every equitable obligation can be enforced in this way. In the words of Parker J in Deschamps v Miller407 the equitable jurisdiction in respect of foreign land depends ‘upon the existence between the parties to the suit of some personal obligation, arising out of the contract or implied contract, fiduciary relationship or fraud, or other conduct which, in the view of a Court of Equity in this country, would be unconscionable, and do not depend for their existence on the law of the locus of the immovable property’. Accordingly, there must be a personal obligation between the parties to the suit. Such an obligation may arise

from a contract between the parties for the sale of land as was the case in Richard West & Partners (Inverness) Ltd v Dick. An action to enforce the personal covenant to pay rent on a lease of foreign land can be entertained by our courts.408 The equity can arise from a breach by a trustee of foreign land of his or her fiduciary obligations towards the beneficiaries under a will409 or the refusal of a trustee of an express or resulting trust to reconvey,410 or the equities that arise between partners in a long-term de facto relationship.411 A personal obligation also arises from the equity of redemption, which the mortgagor retains under the Old System mortgage. English courts have granted injunctions to restrain a mortgagee from proceeding with a foreclosure suit [page 81] in the foreign country where the land is situated,412 and conversely have decreed foreclosure of a mortgage of foreign land.413 3.135 However, a claim for a declaration that rights under a mortgage of foreign land have been statute-barred has been held not to fall within the exception.414 The statutory charge created by Torrens Title type of legislation does not create a personal obligation but gives rise to a statutory hypothecation enforceable by a special statutory procedure. Accordingly, it was held by the Supreme Court of Canada in Henderson v Bank of Hamilton415 that an action could not be maintained in Ontario in respect of such a charge created over Manitoba land by Manitoba law even though the defendant was personally amenable to the jurisdiction. 3.136 A personal obligation may also arise out of fraud or other unconscionable dealing. An example is found in Cranstown v Johnston416 where the English Court of Chancery intervened to order the defendant to reconvey to the plaintiff a plantation in the West Indies which the defendant, as a creditor of the plaintiff, had acquired by forcing a judicial sale in the defendant’s absence and in circumstances which ensured that the defendant was the sole bidder at the auction. A further example is supplied by Singh v Singh417 in which the Western Australian Court of Appeal dismissed an appeal from a decision refusing to decline jurisdiction in a case where equitable relief including declarations and injunctions was sought in respect of an alienation of land in Malaysia alleged to have been accompanied by an intent to defraud creditors in contravention of the Property Law Act 1969 (WA).

3.137 A personal obligation may also arise in quasi-contract even though it arises from a situation for which an action in trespass could have been brought. In Nissan v Attorney-General418 the plaintiff complained that British troops had seized his hotel in Cyprus. Instead of suing for trespass, the plaintiff waived the tort and sued in quasi-contract on an implied promise by the Crown to pay for the occupation of the hotel. The Crown was not allowed to rely on the argument that had the action been brought in trespass the Moçambique rule would have applied.419 3.138 Not every equitable obligation is the result of a personal obligation. Certain equitable obligations, such as the Tulk v Moxhay420 covenant, go with the title and bind the subsequent purchaser. A third party who obtains the legal title to land subject to such an equitable encumbrance becomes subject to that encumbrance by force of law and not by way of personal obligation. In that case the Moçambique rule applies and the court cannot exercise jurisdiction to enforce such an obligation if it relates to foreign land.421 It matters not that the third party took the land without [page 82] notice of the equity,422 or with notice of the equity.423 However, a third party who agrees to take the land subject to all existing equities is regarded as being under a personal obligation to the person beneficially entitled to that equity.424

The second exception: actions in Admiralty and suits for the administration of an estate or trust 3.139 The Moçambique rule does not apply to actions in rem in Admiralty where it is no objection that the lien sought to be enforced against the ship arose out of damage caused by the ship to the plaintiff’s land abroad.425 Nor does the rule apply as such to probate and administration suits where the courts have assumed jurisdiction to determine questions on which the title to foreign land depends.426

A possible third exception 3.140 In Moçambique, Lord Herschell LC said: ‘In the exercise of the undoubted jurisdiction of the Courts it may become necessary incidentally to

investigate and determine the title to foreign lands’.427 Some commentators have said that this is merely an incident of the first exception, relating to equitable interests in foreign land.428 However, in Nudd v Taylor,429 Holmes J held that it constitutes a separate and independent third exception that can arise where there is no contract, fiduciary relationship or equity between the parties.430 This exception raises the question of the intended width of the Moçambique rule: does it only prohibit proceedings founded on title to, or the right to possession of, foreign land or does it extend more broadly to proceedings ‘relating to’ title or the right to possession? In Dagi v BHP Co Ltd (No 2),431 Byrne J said that the rule only prohibits claims that ‘essentially concern’ rights to or over foreign land, in the sense that those rights are ‘the foundation or gravamen’ of the claim. Applying that test in Nudd, Holmes J held that a claim by a de facto spouse to a share of the proceeds of sale of foreign land was not incidental to her ability to demonstrate a beneficial interest in the land. The spouse’s claim essentially concerned her right to an interest in the properties as the gravamen of her claim and so fell outside the third exception. However, it did fall within the first exception, that of a personal equitable obligation in relation to foreign land. [page 83]

Patents and Other Intellectual Property Rights 3.141 In Potter v Broken Hill Pty Co Ltd432 the High Court drew an analogy between immovable property situated abroad and foreign patents, and held that the same rule applied to both.433 Consequently, an action could not be maintained in Victoria for the infringement of a New South Wales patent. This decision was followed and extended in Tyburn Productions Ltd v Conan Doyle434 where it was held that claims of title to rights arising under foreign patents, copyright and trade marks were actions of a local nature which did not lie within the jurisdiction of the forum. It was also followed by the Federal Court of Australia in Tritech Technology Pty Ltd v Gordon,435 where it was held that an action to determine rights in or title to foreign patents lay beyond the jurisdiction of the court. However, Finkelstein J went on to apply the first exception to the Moçambique rule, holding that the claim before him was justiciable because it was a claim to enforce a personal equitable obligation in relation to the foreign

patents.436 More recently, in R v Moti,437 six members of the High Court observed that, although conceded, Potter was argued on a basis which ‘can now be seen to be false, namely, “that, for the purposes of the question … under consideration, the several States of Australia stand towards each other in the position of foreign States”’ and that ‘[n]o consideration appears to have been given in argument or in the judgments to relevant constitutional questions including, but not limited to, the application of the full faith and credit provisions of s 118 of the Constitution’. 3.142 The analogy between a patent or copyright and an immovable is highly artificial. As regards patents, Fullagar J has suggested that ‘[a] patent for an invention gives a monopoly within the territory which grants it. Outside that territory it has no force or effect’.438 This means that an infringement of a patent is only an enforceable wrong within the territory for which it was granted. If a patent is infringed outside the territory for which it was granted the owner cannot, in the absence of an international convention or special legislation, bring an action for the infringement either in the country where the breach occurred or in the country where the patent was granted. But in view of the quite different historical background to the law of copyright and trade marks, it is dubious whether even this principle should be extended to other forms of intellectual property. _________________________ 1.

See M Leeming, Authority to Decide, The Federation Press, Sydney, 2012, Ch 1.

2.

Much litigation that takes place in the Commercial Court of the High Court of Justice in London does not in fact involve English parties or have any connection with England other than by reason of the parties’ agreement to submit resolution of their dispute to the English courts.

3.

This traditional rule was known as the Moçambique rule as a consequence of the decision in British South Africa Co v Companhia de Moçambique [1893] AC 602; see also Hesperides Hotels Ltd v Muftizade [1979] AC 508 and Broken Hill Pty Ltd v Potter (1906) 3 CLR 4. The rule was subject to an equitable qualification where in personam orders could be made in certain limited circumstances where equitable intervention was otherwise called for: see Penn v Lord Baltimore (1750) 1 Ves Sen 444; 27 ER 1132. The Moçambique rule, as a common law rule, survives in Australia today (see, for example, TS Productions LLC v Drew Pictures Pty Ltd (2008) 172 FCR 433; 252 ALR 1) although it has been reversed by statute in New South Wales (see Jurisdiction of Courts (Foreign Land) Act 1989 (NSW)) and restricted in its operation in the Australian Capital Territory: Law Reform (Miscellaneous Provisions) Act 1985 (ACT). For a further discussion of the topic of jurisdiction in respect of foreign land, see 3.127–3.130 below. For the impact of the legislation in the Australian Capital Territory and New South Wales on applications for stays of proceedings on discretionary grounds, see 8.25 below.

4.

H C Sleigh Ltd v Barry Clarke & Co [1954] SASR 49 at 52.

5.

For jurisdiction in admiralty and diversity jurisdiction, see Chapter 5 below. Cross-vested jurisdiction is discussed in Chapter 6. Jurisdiction in family law matters is dealt with in Chapters 26–29 inclusive. For jurisdiction in mental disability matters, see Chapter 31.

6.

Laurie v Carroll (1958) 98 CLR 310 at 322–3 per Dixon CJ, Williams and Webb JJ.

7.

Altertext Inc v Advanced Data Communications Ltd [1985] 1 All ER 395 at 398 per Scott J; ANZ Grindlays Bank plc v Hussein Salah Hussein Abdul Fattah (1991) 4 WAR 296 at 299, 300 per Anderson J.

8.

See 35.15–35.25 below.

9.

See M Leeming, Authority to Decide, The Federation Press, Sydney, 2012, Ch 6.

10. It may never have existed: Ehrenzweig,‘The Transient Rule of Personal Jurisdiction: The “Power” Myth and Forum Conveniens’ (1956) 65 Yale LJ 289. 11. (1958) 98 CLR 310 at 323 per Dixon CJ, Williams and Webb JJ. 12. See note 11 above. 13. Polack v Schumacher (1869) 3 SALR 76. 14. [1972] 2 QB 283. 15. See, for example, Burnham v Superior Court, 495 US 604 (1990). 16. (1987) 10 NSWLR 22. 17. Such a strategy would not be efficacious today following the High Court’s decision in John Pffeifer Pty Ltd v Rogerson (2000) 203 CLR 503; 172 ALR 625, in which it was held that limitation statutes which had traditionally been characterised as procedural, and a matter for the law of the forum, were in fact to be characterised as substantive, thus leaving limitations questions to be determined by the law of the cause. 18. [1985] 1 Qd R 83. 19. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 518; 172 ALR 625 at 630, at [14] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 20. Tuckerman v Neville [1992] 2 Qd R 657. 21. Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 252 per Deane J. 22. See Chapter 8 below. 23. Watkins v North American Land Timber Co Ltd (1904) 20 TLR 534 at 536 per Lord Davey. 24. John Sanderson and Co (NSW) Pty Ltd (in liq) v Giddings [1976] VR 421 at 424 per Starke J; Baldry v Jackson [1976] 1 NSWLR 19. 25. Laurie v Carroll (1958) 98 CLR 310. 26. Filipowski v Frey [2005] NSWLEC 166. See also Howard v National Bank of New Zealand Ltd [2002] FCA 1257. 27. Filipowski v Frey [2005] NSWLEC 166 at[24]–[28] per McClellan CJ; Joye v Sheahan (1996) 62 FCR 417. 28. Joye v Sheahan (1996) 62 FCR 417 at 419 per Sheppard, Spender and Hill JJ. 29. See 3.36ff. 30. Australian Securities and Investments Commission v Sweeney (No 2) (2001) 38 ACSR 743; Australian Competition and Consumer Commission v Kokos International Pty Ltd [2007] FCA 2035; Applecross Pte Ltd v Lim (No 2) [2010] FCA 589. See also Bulldogs Rugby League Club Ltd v Williams [2008] NSWSC 822 at [30] per Austin J. 31. See 35.15–35.25 below. 32. Federal Court of Australia Act 1976 (Cth) s 18; HCR 2004 O 9.

33. Flaherty v Girgis (1987) 162 CLR 574. 34. Part 2 is limited to service of process in civil proceedings, a term which includes claims for compensation and to recover proceeds of crime associated with criminal proceedings: Service and Execution of Process Act 1992 (Cth) ss 3(1), 13. 35. See note 34 above at s 3(1) definition of ‘initiating process’. 36. For a discussion of service on companies, see 35.15–35.25 below. 37. Mobil Oil Australia Pty Ltd v Victoria (2000) 211 CLR 1 at 38–9; 189 ALR 161 at 177–8, at [60] per Gaudron, Gummow and Hayne JJ. 38. See the remarks of Master Hogan in Konris v Barlin (1993) 115 ACTR 11 at 18. 39. Schmidt v Won [1998] 3 VR 435 at 452 per Ormiston JA. 40. Service and Execution of Process Act 1992 (Cth) s 3(1), definitions of ‘court’ and ‘authority’. 41. (2006) 227 CLR 490; 226 ALR 570. 42. Flaherty v Girgis (1987) 162 CLR 574 at 597 per Mason ACJ, Wilson and Dawson JJ, at 603 per Brennan J, at 609 per Deane J. 43. See note 42 above at 597–8 per Mason ACJ, Wilson and Dawson JJ. 44. Plantagenet Wines Pty Ltd v Lion Nathan Wine Group Australia Ltd (2006) 229 ALR 327. 45. (1999) 198 CLR 511; 163 ALR 270. See Chapter 6 below. 46. (2009) 28 VR 595. 47. See note 46 above at 603, at [31] per Byrne J. 48. (1990) 171 CLR 538; 97 ALR 124. 49. [1987] 1 AC 640. See the discussion in Chapter 8 below. 50. St George Bank Ltd v McTaggart [2003] 2 Qd R 568. 51. See BHP Billiton Ltd v Schultz (2004) 221 CLR 400; 211 ALR 523. 52. The principles relating to transfers under the cross-vesting legislation are considered in Chapter 6 below. Another difference to be noted between the transfer provisions of the cross-vesting regime and those under the Service and Execution of Process Act is that no appeal lies from a decision in the former case (other than by way of special leave to the High Court) whereas an appeal will lie from a decision pursuant to s 20 of the Service and Execution of Process Act. That having been said, as such a decision would be interlocutory and on a question of practice and procedure, leave to appeal would be required which may be difficult to obtain as a practical matter. 53. See Seymour-Smith v Electricity Trust of South Australia (1989) 17 NSWLR 648. 54. Federal Court Rules 2011 (Cth) Div 10.6; Family Law Regulations 1984 (Cth) Pt IIAC; Court Procedures Rules 2006 (ACT) Div 6.8.12; Uniform Civil Procedure Rules 2005 (NSW) Pt 11A; Supreme Court Rules (NT) Reg 7A; Uniform Civil Procedure Rules 1999 (Qld) Pt 7, Div 3; Supreme Court Civil Rules 2006 (SA) Ch 3, Pt 3, Div 3, Subdiv 2; Supreme Court Rules 2000 (Tas) Pt 38A; Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 80; Rules of the Supreme Court 1971 (WA) O 11A. 55. Hague Service Convention, Art 1. 56. D McClean, International Cooperation in Civil and Criminal Matters, Oxford University Press, London, 2002, p 47. 57. Hague Conference on Private International Law,Special Commission Conclusions and Recommendations (2009), para 12; L Collins, A Briggs, A Dickson, et al, Dicey, Morris and Collins:

The Conflict of Laws, 15th ed, Sweet & Maxwell Ltd, London, 2012, p 280. 58. D McClean, International Cooperation in Civil and Criminal Matters, Oxford University Press, London, 2002, pp 47–54; G Elliott and D Hughes, ‘Australia Joins the Hague Service Convention’ (2010) 84 ALJ 532 at 537 and n 35. See Volkswagenwerk Aktiengesellschaft v Schlunk, 486 US 694, 108 S Ct 2104 (1988), where it was held that use of the Convention procedures is mandatory for service in other Convention countries but only when service abroad is required by the lex fori, which is not always the case in the USA. 59. B Ristau, International Judicial Assistance: Civil and Commercial, International Law Institute, Washington DC, 1995 with 2000 revision, Vol 1, § 4-1-5. 60. Hague Conference on Private International Law, Practical Handbook on the Operation of the Hague Service Convention, eds C Bernasconia and L Thébault,The Hague, 2006, p 21. 61. See Volkswagenwerk Aktiengesellschaft v Schlunk, 486 US 694 at 699, 108 S Ct 2104 at 2108 (1988); Société Nationale Industrielle Aerospatiale v United States District Court for the Southern District of Iowa, 482 US 522 at 534, n 15, 107 S Ct 2542 at 2550 n 15 (1987). 62. UCPR 2005 (NSW) r 11.2(2). 63. SC(GCP)R 2005 (Vic) r 7.09. 64. RSC 1971 (WA) r 10.1A(3). In Yzerman v Schofield [2011] WASC 200, service was made using Hague Service Convention procedures, and the Supreme Court of Western Australia considered whether service outside Australia was permitted under RSC 1971 (WA) O 10. RSC 1971 (WA) r 10.1A(3) was amended in 2012, after the decision in Yzerman, to take the form described in the text, which excludes the operation of O 10 in Hague Service Convention cases: see [2012] Western Australian Government Gazette 2448. 65. See note 103 below. 66. FCR 2011 (Cth) r 10.62; Fam L Regs 1984 (Cth) reg 21AD; CPR 2006 (ACT) r 6511; UCPR 2005 (NSW) r 11A.2; SCR (NT) r 7A.02; UCPR 1999 (Qld) r 130B; SCCR 2006 (SA) r 41B; SCR 2000 (Tas) r 970B; SC(GCP)R 2005 (Vic) r 80.02; RSC 1971 (WA) r 11A.2. 67. FCR 2011 (Cth) r 10.64(1); Fam L Regs 1984 (Cth) reg 21AF(1); CPR 2006 (ACT) r 6510(1); UCPR 2005 (NSW) r 11A.4(1); SCR (NT) r 7A.04(1); UCPR 1999 (Qld) r 130D(1); SCCR 2006 (SA) r 41D(1); SCR 2000 (Tas) r 970D(1); SC(GCP)R 2005 (Vic) r 80.04(1); RSC 1971 (WA) r 11A.4(1). 68. 486 US 694 at 699, 108 S Ct 2104 at 2108 (1988). 69. Hague Service Convention, Art 1. 70. Volkswagenwerk Aktiengesellschaft v Schlunk, 486 US 694 at 700–6, 108 S Ct 2104 at 2108–11 (1988). 71. Knauf United Kingdom GmbH v British Gypsum Ltd [2002] 1 WLR 970 at 921, at [47] per Rix LJ (for the English Court of Appeal). 72. See note 69 above at Art 2. 73. See note 69 above at Art 5. 74. See note 69 above at, Art 13. 75. See note 69 above. 76. 14 August 2013. 77. Albania, Antigua and Barbuda, Argentina, Armenia, Bahamas, Barbados, Belarus, Belgium, Belize, Bosnia and Herzegovina, Botswana, Bulgaria, Canada, China, Croatia, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, the Former Yugoslav Republic of Macedonia, France, Germany, Greece, Hungary, Iceland, India, Ireland, Israel, Italy, Japan, Korea, Kuwait, Latvia, Lithuania, Luxembourg, Malawi, Malta, Mexico, Moldova, Monaco, Netherlands, Norway, Pakistan, Poland,

Portugal, Romania, Russia, Saint Vincent and the Grenadines, San Marino, Serbia, Seychelles, Slovakia, Slovenia, Spain, Sri Lanka, Sweden, Switzerland, Turkey, Ukraine, United Kingdom, United States of America, Venezuela. See the Status Table at . 78. FCR 2011 (Cth) r 10.64; Fam L Regs 1984 (Cth) reg 21AF; CPR 2006 (ACT) r 6510(1),(2); UCPR 2005 (NSW) r 11A.4; SCR (NT) r 7A.04; UCPR 1999 (Qld) r 130D(2); SCCR 2006 (SA) r 41D; SCR 2000 (Tas) r 970D(2); SC(GCP)R 2005 (Vic) r 80.04; RSC 1971 (WA) r 11A.4. 79. FCR 2011 (Cth) r 10.65; Fam C Regs 1984 (Cth) reg 21AG(1),(2); CPR 2006 (ACT) r 6554(1) (b); UCPR 2005 (NSW) r 11A.5; SCR (NT) r 7A.05; UCPR 1999 (Qld) r 130E(1)(b); SCCR 2006 (SA) r 41E; SCR 2000 (Tas) r 970E(1)(b); SC(GCP)R 2005 (Vic) r 80.05; RSC 1971 (WA) r 11A.5. 80. Countries expressing objection to Art 8 are: Belgium, Egypt, Kuwait, Norway, Poland, San Marino, Switzerland: see the table at . 81. Countries objecting to Art 8 except for service on nationals of the country from which service is made are: Bulgaria, China, Croatia, Czech Republic, the Former Yugoslav Republic of Macedonia, France, Germany, Greece, Hungary, India, Korea, Latvia, Lithuania, Luxembourg, Malta, Mexico, Moldova, Monaco, Montenegro, Pakistan, Portugal, Romania, Russia, Serbia, Seychelles, Slovakia, Slovenia, Sri Lanka, Turkey, Ukraine, Venezuela: see the table at . 82. FCR 2011 (Cth) r 10.63(2); Fam L Regs 1984 (Cth) reg 21AE(2); UCPR 2005 (NSW) r 11A.3(2); SCR (NT) r 7A.03(2); UCPR 1999 (Qld) r 130C(2); SCCR 2006 (SA) r 41C(2); SCR 2000 (Tas) r 970C(2); SC(GCP)R 2005 (Vic) r 80.03(2); RSC 1971 (WA) r 11A.3(2). 83. Countries objecting to Art 10(a) are: Argentina, Bulgaria, China, Croatia, Czech Republic, Denmark, Egypt, the Former Yugoslav Republic of Macedonia, Germany, Greece, Hungary, India, Korea, Kuwait, Lithuania, Malta, Mexico, Moldova, Monaco, Montenegro, Norway, Poland, Russia, San Marino, Serbia, Slovakia, Sri Lanka, Switzerland, Turkey, Ukraine, Venezuela. See the table at . 84. See the table at note 83 above. 85. See note 83 above. 86. See, for example, Cooper v Makita USA Inc, 117 FRD 16 (D Me 1987); Bankston v Toyota Motor Corp, 889 F 2d 172 (8th Cir 1989); Melia v Les Grandes Chais de France, 135 FRD 28 (DRI 1991); Honda Motor Co v Superior Court, 12 Cal Rptr 861 (Cal Ct App, 1992); Sardanis v Sumitomo Corp, 718 NYS 2d 66 (NY App Div 2001); Nuovo Pignone, SpA v MV Storman Asia, 310 F 3d 374, 383-5 (5th Cir 2002); Uppendahl v American Honda Motor Co, 291 F Supp 2d 531 (WD Ky, 2003); Intelsat Corp v Multivision TV LLC, 736 F Supp 2d 1334 (SD Fla 2010); In re Mak Petroleum Inc, 424 BR 912 (Bkrtcy MD Fla 2010). 87. ‘Statement by Japanese Delegation to Hague Conference on Private International Law’ (1989) 28 ILM 1556, 1561 (1989); see also Japanese entry in the table, above note 78. 88. See, for example, Ackermann v Levine, 788 F 2d 830 (2d Cir 1986); Research Systems Corp v IPSOS Publicite, 276 F 3d 914 (7th Cir 2002); Brockmeyer v May, 383 F 3d 798 (9th Cir 2004); Shoham v Islamic Republic of Iran,—F Supp 2d—(DDC 2013). 89. Hague Conference on Private International Law, Practical Handbook on the Operation of the Hague Service Convention, eds C Bernasconia and L Thébault,The Hague, 2006, p 69. 90. HCR 2004 O 9.07.1 provides for service of originating process outside of Australia without order of the court in any case where, under the Federal Court Rules, originating process in the Federal Court of Australia may be served outside of Australia. 91. FCR 2011 Div 10.4; CPR 2006 (ACT) Div 6.8.9; UCPR 2005 (NSW) Pt 11, Div 1 and Sch 6; SCR

(NT) O 7; UCPR 1999 (Qld) Ch 4 Pt 7; SCCR 2006 (SA) r 40; SCR 2000 (Tas) Div 10; SC(GCP)R 2005 (Vic) O 7; RSC 1971 (WA) O 10. 92. BP Exploration Co (Libya) v Hunt [1976] 3 All ER 879. 93. Australian Securities and Investments Commission v Sweeney (No 2) (2001) 38 ACSR 743; Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liq) [2002] FCA 1183; Australian Competition and Consumer Commission v Kokos International Pty Ltd [2007] FCA 2035; Commissioner of Taxation v Oswal [2012] FCA 1507; Ellen G White Estate Inc v Knudson [2013] FCA 378; Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268. 94. This jurisdiction was once known as ‘exorbitant’ or ‘long-arm’ jurisdiction, but these descriptions have been said to be inappropriate given the longevity of the existence of this form of jurisdiction and its widespread use and acceptance at least in common law courts: see Agar v Hyde (2000) 201 CLR 552 at 570–1; 173 ALR 665 at 676–7, at [42] per Gleeson CJ. See also Abela v Baadarani [2013] UKSC 44 especially at [53] per Lord Sumption. 95. CPR 2006 (ACT) r 6501(1); UCPR 2005 (NSW) r 11.2; UCPR 1999 (Qld) r 124(1); SCCR 2006 (SA) r 40(1); SCR 2000 (Tas) r 147A(1); SC(GCP)R 2005 (Vic) r 7.01(1). 96. CPR 2006 (ACT) r 6508; UCPR 2005 (NSW) r 11.4; SCR 2000 (Tas) r 147B; SC(GCP)R 2005 (Vic) r 7.04. 97. In Queensland, leave to proceed was required under the old Rules of the Supreme Court (Qld) O 11 r 4, but there is no such provision in Ch 4 Pt 7 of the UCPR 1999 (Qld). When the SCCR 2006 (SA) were amended to make provision for service under the Hague Service Convention, the former provision requiring leave to continue in the event of non-appearance was not reproduced. 98. CPR 2006 (ACT) r 6503(3)(c); UCPR 2005 (NSW) r 11.7(2)(b); SC(GCP)R (Vic) r 7.05. The term ‘inappropriate’ as used in the predecessor to UCPR 2005 (NSW) r 11.7(2)(b) was construed by the majority in Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491 at 503; 187 ALR 1 at 8, at [24] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, as meaning ‘clearly inappropriate’ in the sense that expression was used in Voth v Manildra Flour Mills Pty Ltd (1991) 171 CLR 538; 97 ALR 124. The criticism of the majority approach by Kirby J ((2002) 210 CLR 491 at 542–5) is powerful. In Studorp Ltd v Robinson [2012] NSWCA 382 at [5], Allsop P observed that the use of the adverb ‘clearly’ in the Voth test as opposed to the statutory test evinced a ‘difference in quality and emphasis’. 99. Barack v University of New South Wales [2011] NSWSC 431. 100. Borch v Answer Products Inc [2000] QSC 379. 101. See further at 3.51ff below. 102. See Agar v Hyde (2000) 201 CLR 552 at 574–5; 173 ALR 665 at 679–80, at [53] per Gleeson CJ. 103. RSC (NT) r 7.02; RSC 1971 (WA) O 10 r 4. See, for example, in relation to the Northern Territory, Centrebet Pty Ltd v Baasland (2012) 272 FLR 69. 104. FCR 2011 r 10.41. 105. FCR 2011 r 10.43(2). 106. ANZ Grindlays Bank plc v Hussein Salah Hussein Abdul Fattah (1991) 4 WAR 296. 107. Atco Industries (Aust) Pty Ltd v Ancla Maritima SA (1984) 35 SASR 408; Australian Commercial Research & Development Ltd v ANZ McCaughan Merchant Bank Ltd [1990] 1 Qd R 101. For circumstances where compliance with the requirements was dispensed with, see Boocock v Hilton International Co [1993] 4 All ER 19. 108. Portelli v Seltsam Ltd [1988] VR 337. 109. See 3.59ff below.

110. Freckmann v Pengendar Timur Sdn Bhd [1989] WAR 62. Note that Western Australia is the only jurisdiction that still requires the tort to have been committed within the jurisdiction: see 3.73 below. 111. Matthews v Kuwait Bechtel Corp [1959] 2 QB 57. 112. Tricon Industry Pty Ltd v Abel Lemon & Co Pty Ltd [1988] 2 Qd 464; D’Ath v TNT Australia Pty Ltd [1992] 1 Qd R 369; David Syme & Co Ltd v Grey (1992) 38 FCR 303; 115 ALR 247; Tycoon Holdings Ltd v Tencor Jetco Inc (1992) 34 FCR 31 at 35; Delco Australia Pty Ltd v Equipment Enterprises Inc (t/as Kukla Trenchers) (2000) 100 FCR 385 at [35]. Compare Shantou Hesheng Commercial Development Co v P & O Swire Containers Ltd [1999] 3 VR 478 where some claims could be served outside Australia under the rules but others could not, leave was given to serve those not falling within the rules by virtue of a rule giving the court general discretion to permit service outside Australia (SC(GCP)R 2005 (Vic) r 7.07(3)). Byrne J said that the justice of the case required service out because it was desirable that the issues common to all the claims be determined at the same time, in the same forum, with a saving to the parties and avoiding the risk of inconsistent findings. 113. (2006) 230 ALR 297 at 311. 114. [2007] FCA 825 at [12]; see also Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd [2009] FCA 735; Australian Competition and Consumer Commission v Prysmian Cavi e Sistemi Energia SRL (No 4) (2012) 298 ALR 251 at 261, at [64] per Lander J. 115. SC(GCP)R 2005 (Vic) r 7.04(1)(a). 116. Kinihill Engineers Pty Ltd v Zhen Yun Ltd [1992] ACL Rep 85 SA 4; Williams v Society of Lloyd’s [1994] 1 VR 274. Similar conclusions have been reached in Ontario: Singh v Howden Petroleum Ltd (1979) 100 DLR 3d 121 at 132; and by the Privy Council on appeal from New Zealand: Kuwait Asia Bank EC v National Mutual Life Nominees Ltd [1990] 2 Lloyd’s Rep 95. 117. [1994] AC 438. 118. See also Commonwealth Bank of Australia v White [1999] 2 VR 681 at 693; Trust Co v Stolzenberg (No 2) [1998] 1 WLR 547 at 558 per Waller LJ, approved [2002] 1 AC 1 at 10 per Lord Steyn. 119. Williams v Society of Lloyd’s [1994] 1 VR 274 at 291 per McDonald J, citing Siskina, Owners of Cargo Lately Laden on Board v Distos Compania Naviera SA [1979] AC 210 at 255 per Lord Diplock. See also Commonwealth Bank of Australia v White [1999] 2 VR 681. 120. Schib Packaging Srl v Emrich Industries Pty Ltd (2005) 12 VR 268; Castel Electronics Pty Ltd v TCL Airconditioner (Zhongshan) Co Ltd [2013] VSC 092. In Puccini Festival Australia Pty Ltd v Nippon Express (Aust) Pty Ltd (2007) 17 VR 36, it was held that the long-standing decision to this effect in Williams v Society of Lloyd’s [1994] 1 VR 274 had effectively been overruled by the High Court’s decision in Agar v Hyde (2000) 201 CLR 552; 173 ALR 665. The court in Castel Electronics Pty Ltd v TCL Airconditioner (Zhongshan) Co Ltd [2013] VSC 092 rejected that proposition and followed Williams v Society of Lloyd’s [1994] 1 VR 274 and Schib Packaging Srl v Emrich Industries Pty Ltd (2005) 12 VR 268, holding that Agar was not applicable because it was concerned with the words of the New South Wales rule, which differ from those of the Victorian rule. 121. Agar v Hyde (2000) 201 CLR 552; 173 ALR 665. The High Court did not in terms address the requirement for which Seaconsar Far East Ltd v Bank Markazi Jomhouri Islam Iran [1994] AC 438 is authority; namely that there must be a strong arguable case as to the existence of the jurisdictional facts contained in the particular categories of case for service abroad. There is a respectable view, by analogy with the High Court’s decision in Owners of ‘Shin Kobe Maru’ v Empire Shipping Co Inc (1994) 181 CLR 404 at 426, that jurisdictional facts must be demonstrated at the outset and on the balance of probabilities. 122. Agar v Hyde (2000) 201 CLR 552 at 573–4; 173 ALR 665 at 679, at [51] per Gaudron, McHugh, Gummow and Hayne JJ.

123. CPR 2006 (ACT) r 6508(1); SCR 2000 (Tas) r 147B(1). 124. [2000] QSC 379. 125. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564 per Mason CJ, Deane, Dawson and Gaudron JJ; Yzerman v Schofield [2011] WASC 200; Centrebet Pty Ltd v Baasland (2012) 272 FLR 69. 126. Forestry Commission v Vickers-Armstrong (Tractors) Ltd [1964] Tas SR 109; West Clothing Co Pty Ltd v Sail America Foundation for International Understanding [1988] WAR 119. 127. FCR 2011 r 10.43(4)(c). 128. Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387 at 390 per Heerey J; Western Australia v Vetter Trittler Pty Ltd (in liq) (1991) 30 FCR 102 at 109 per French J; Ho v Akai Pty Limited (in liq) ACN 001 500 714 (2006) 24 ACLC 1526; [2006] FCAFC 159; Australian Competition and Consumer Commission v Prysmian Cavi e Sistemi Energia SRL (No 4) (2012) 298 ALR 251. 129. WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 at 476; 111 ALR 126 at 130, per Beaumont J; Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317 at 339, at [97], per Carr J; Commissioner of Taxation v Oswal [2012] FCA 1507 at [19] per Gilmour J; Australian Competition and Consumer Commission v Prysmian Cavi e Sistemi Energia SRL (2011) 283 ALR 137 at 166, at [199] per Lander J. For an example of a case where no prima facie case was established, and leave to serve outside the jurisdiction was rejected, see Perdaman Chemicals and Fertilizers Pty Ltd v ICICI Bank Ltd [2013] FCA 175. 130. WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 at 474; 111 ALR 126 at 128 per Morling J (with whom Beaumont J agreed); Suzlon Energy Ltd v Bangad (No 2) (2011) 198 FCR 1; 284 ALR 98 at 101, at [9] per Rares J. 131. Western Australia v Vetter Trittler Pty Ltd (in liq) (1991) 30 FCR 102 at 110 per French J; Tycoon Holdings Ltd v Tencor Jetco Inc (1992) 34 FCR 31 at 35–6 per Wilcox J; Trade Practices Commission v Gillette Co (No 1) (1993) 45 FCR 366 at 371 per Burchett J; Cell Tech Communications Pty Ltd v Nokia Mobile Phones (United Kingdom) Ltd (1995) 58 FCR 365; Amrad Operations Pty Ltd v Genelabs Technologies Inc (1999) 45 IPR 447 at 450 per Kenny J; Ho v Akai Pty Limited (in liq) ACN 001 500 714 (2006) 24 ACLC 1526; [2006] FCAFC 159; Gough & Gilmore Holdings Pty Ltd v Caterpillar of Australia Pty Ltd [2009] FCA 1429. 132. Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425 at 436, at [42], per Moore J; Quinlan v Safe International Fäkrings AB [2005] FCA 1362 at [27] where Nicholson J observed that ‘[s]ervice out of the jurisdiction should be approached by the courts with circumspection. It is an exceptional measure’. See ICI Operations Pty Ltd v Kiddle-Graviner Ltd [1999] WASCA 65 at [2] per Kennedy J:‘The court will not be satisfied on slight material’. See also Perdaman Chemicals and Fertilizers Pty Ltd v ICICI Bank Ltd [2013] FCA 175 at [84]. 133. (1990) 171 CLR 538 at 564–5. 134. See also HAG Import Corp (Australia) Pty Ltd v Krosnienskie Huty Szkla ‘Krosno’ SA [2004] FCA 1223 at [12]. 135. Under former FCR O 9 r 7 (see now r 13.01) there was no need to enter a formal appearance to raise such an argument: Trade Practices Commission v Gillette Co (No 2) (1993) 45 FCR 466; 118 ALR 280, affirmed on other grounds as WSGAL Pty Ltd v Trade Practices Commission (1994) 51 FCR 115; 122 ALR 673. 136. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565; 97 ALR 124 at 141, per Mason CJ, Deane, Dawson and Gaudron JJ; Armacel Pty Ltd v Smurfit Stone Container Corporation (2008) 248 ALR 573. 137. Tycoon Holdings Limited v Tencor Jetco Inc (1992) 34 FCR 31 at 33; Bray v F Hoffmann-La Roche

Limited (2003) 139 FCR 317 at [53] per Carr J; Armacel Pty Limited v Smurfit Stone Container Corporation (2008) 248 ALR 573; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 6) (2010) 270 ALR 504; Australian Competition and Consumer Commission v Prysmian Cavi e Sistemi Energia SRL (No 4) (2012) 298 ALR 251. These decisions all concerned O 9 r 7 of the old Federal Court Rules, which was in the same terms now used in the Federal Court Rules 2011 r 13.01(1)(b). 138. The plaintiff/applicant may also adduce further evidence in reply: WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472; 111 ALR 126. The plaintiff/applicant is entitled to use a subpoena served within Australia to seek production of documents tending to show that it has a prima facie case to counter opposition to service out: see note 130 above. 139. Mackender v Feldia AG [1967] 2 QB 590 at 600 per Diplock LJ. 140. Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438. See also Esanda Finance Corp Ltd v Wordplex Information Systems Ltd (1990) 19 NSWLR 146; Yzerman v Schofield [2011] WASC 200. Compare Williams v Society of Lloyd’s [1994] 1 VR 274 at 291 per McDonald J (where the same or similar issues will by necessity be conclusively decided at trial as are under consideration in the application to set aside service, it is inappropriate to postpone until trial the determination of the sufficiency of the satisfaction of the requirements of the rules permitting service out). 141. Western Australia v Vetter Trittler Pty Ltd (in liq) (1991) 30 FCR 102. 142. The Hagen [1908] P 189 at 201 per Farwell LJ; Yzerman v Schofield [2011] WASC 200. 143. [1967] NZLR 851. 144. [1967] NZLR 851. 145. [2011] WASC 200. The Western Australian rules were amended after Yzerman, in a manner that suggests that service outside Australia can be done using the Hague Service Convention rules, without the need to apply for leave. 146. Tricon Industries Pty Ltd v Abel Lemon & Co Pty Ltd [1988] 2 Qd R 464 at 471–2 per Shepherdson J; Australian Insurance Brokers Ltd v Hudig Langeveldt Pty Ltd (No 2) (1991) 7 WAR 343; Saltram Wine Estates v Independent Stave Co (1992) 57 SASR 372; Re New Tel Ltd (in liq) (2008) 66 ACSR 311; Thomson v Raute Corp (No 2) [2011] WADC 28. 147. Stanley Kerr Holdings v Gibor Textile Enterprises Pty Ltd [1978] 2 NSWLR 372. 148. Seaconsar Far Fast Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438. 149. The test laid down by the High Court in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. Contrast the test laid down by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460 whether the forum is ‘clearly more appropriate’ than any alternative forum. In exercising its discretion in relation to service out, the court must exercise the Voth test, not the Spiliada test: see Yzerman v Schofield [2011] WASC 200. 150. See Chapter 8. 151. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565 per Mason CJ, Deane, Dawson and Gaudron JJ. 152. See Chapter 7. 153. FCR 2011 r 10.43(4). 154. See, for example, BEST Australia Ltd v Aquagas Marketing Pty Ltd (1988) 83 ALR 217 at 222 per Wilcox J; Trade Practices Commission v Gillette Co (No 2) (1993) 45 FCR 466; 118 ALR 280; Cell Tech Communications Pty Ltd v Nokia Mobile Phones (United Kingdom) Ltd (1995) 58 FCR 365 at 371; 136 ALR 733 at 739 per Lindgren J; Bray v F Hoffman-La Roche (2003) 130 FCR 317; 200 ALR

607; Quinlan v Safe International Forsakrings AB [2005] FCA 1362 at [26]–[27] per Nicholson J; Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425; 232 ALR 478 at 485, at [30]–[31] per Moore J. 155. FCR 2011 rr 1.33, 10.43(4) Note 3. 156. Re Liddell’s Settlement Trust [1936] Ch 365. 157. Szintay v Szintay (1954) 73 WN (NSW) 330. 158. (2003) 132 FCR 309; 201 ALR 40 at [45]. See also Bulldogs Rugby League Club Ltd v Williams [2008] NSWSC 822 at [69]–[75]. 159. A key practical difference between the Federal Court Rules and those of some of the Supreme Courts is that, in the latter, as pointed out at 3.40 above and 3.109 below, each cause of action pleaded or alleged must fall within one of the sub-heads or categories for service out of the jurisdiction whereas, as the opening words of r 10.42 of the Federal Court Rules 2011 make plain, in the Federal Court, only one of the claims needs to fall within the rules in order for service of the entire process (including claims not falling within the rule) to be permissible. 160. Detailed commentaries on the various sub-heads are also contained in the various court services such as LexisNexis, Ritchie’s Uniform Civil Procedure NSW; and Williams, Civil Procedure Victoria. 161. FCR 10.42 item 1; CPR (ACT) r 6501(1)(a); UCPR 2005 (NSW) Sch 6 para (a); UCPR 1999 (Qld) r 124(1)(a); SCR 2000 (Tas) r 147A(1)(b). 162. Distillers (Bio-Chemicals) Co Ltd v Thompson [1971] AC 458; New Cap Reinsurance Corporation v Renaissance Reinsurance Ltd [2002] NSWSC 856; Re Mustang Marine Australia Services Pty Ltd (in liq) [2013] NSWSC 360. 163. (2006) 230 ALR 297 at 310. 164. Re Mustang Marine Australia Services Pty Ltd (in liq) [2013] NSWSC 360. 165. (1996) 21 ACSR 553. 166. See note 165 above at 571. 167. [2013] NSWSC 360. 168. See Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at 256–7; David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353. 169. Bowling v Cox [1926] AC 751; Durra v Bank of New South Wales [1940] VLR 170. 170. Adcock v Aarons (1903) 5 WALR 140. This decision is based upon the rather dubious notion that a judgment creates an implied contract between judgment debtor and judgment creditor: see Grant v Easton (1883) 13 QBD 302. That notion was doubted, but not departed from, in Nominal Defendant v Motor Vehicle Insurance Trust of Western Australia (1983) 50 ALR 511 at 514 per Miles J. 171. McFee Engineering Pty Ltd (in liq) v CBS Constructions Pty Ltd (1980) 44 FLR 340 at 348 per Yeldham J. 172. Earthworks and Quarries Ltd v F T Eastment & Sons Pty Ltd [1966] VR 24; Schweitzer v Kronen Verwaltungs GmbH [1998] VSC 190. 173. Nominal Defendant v Motor Vehicle Insurance Trust of Western Australia [1983] 3 NSWLR 309. 174. Belyando Shire Council v Rivers (1908) QWN 17. 175. Chenoweth v Summers [1941] Arg LR(CN) 364a. 176. State of Victoria v Hansen [1960] VR 582. 177. See note 176 above at 586–7 per Adam J.

178. Gilchrist v Dean [1960] VR 266; Wilson Electrical Transformer Co Pty Ltd v Electricity Commission of New South Wales [1968] VR 330. 179. Different formulae are used in New South Wales, which in UCPR 2005 (NSW) Sch 6 para (c) speaks of where ‘the subject matter of the proceedings is a contract’; Queensland, which in UCPR 1999 (Qld) r 124(g) speaks of ‘a proceeding relating to a contract’; and Tasmania, which in SCR 2000 (Tas) r 147A(1)(h) speaks in terms of ‘if a contract is the basis of proceedings’. 180. BP Exploration Co (Libya) v Hunt [1976] 3 All ER 879 at 893 per Kerr J. 181. (1986) 160 CLR 572. 182. E F Hutton & Co (London) Ltd v Mofarrij [1989] 2 All ER 633. 183. Tana v Baxter (1986) 160 CLR 572. 184. South Adelaide FC v Fitzroy FC (No 1) (1988) 49 SASR 380. 185. (1985) 160 CLR 548. 186. [1991] Ch 226. 187. [1983] 3 NSWLR 309. 188. [1990] 1 QB 1078 at 1083. 189. (2012) 272 FLR [69]. 190. FCR 10.42 items 2, 3; CPR (ACT) r 6501(g), (h)(i); UCPR 2005 (NSW) Sch 6 paras (b), (c), (h); SCR (NT) O 7.01(1)(h); UCPR 1999 (Qld) r 124(i); SCCR 2006 (SA) r 40(1)(d); SCR 2000 (Tas) r 147A(1) (f), (h); SC(GCP)R (Vic) r 7.01(1)(f), (h). 191. FCR 10.42 item 3(a); CPR (ACT) r 2601(g)(i); UCPR 2005 (NSW) Sch 6 para (c)(i); SCR (NT) O 7.01(1)(f); UCPR 1999 (Qld) r 124(1)(g); SCCR 2006 (SA) r 40(1)(d)(i); SCR 2000 (Tas) r 147A(1)(h) (i); SC(GCP)R (Vic) O 7.01(1)(f); SCR (WA) O 10 r 1(e). 192. Lewis Construction Co Pty Ltd v Tichauer SA [1966] VR 341. If the contract is made by deed, the deed must have been executed within the jurisdiction: Remilton v City Mutual Life Assurance Society Ltd (1908) 10 WALR 19. In the case of contracts for the international sale of goods governed by the Vienna Convention on the International Sale of Goods (the CISG), a contract made by mail or telegram (or any other means) is made in the place where the acceptance is received by the offeror: see Arts 18(2), 23 and 24. The CISG is given the force of law in relation to the contracts to which it applies by legislation in each state and territory, entitled the Sale of Goods (Vienna Convention) Act. See also Chapter 19 below. 193. WA Dewhurst & Co Pty Ltd v Cawrse [1960] VR 278 at 282 per Dean J; Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539; 149 ALR 134 (offer made by telephone in Australia to offeree in Denmark, acceptance received in Australia, contract made in Australia). 194. Mendelson-Zeller Co Inc v T & C Providores Pty Ltd [1981] 1 NSWLR 366 (telex); Reese Bros Plastic Ltd v Hamon-Sobelco Australia Pty Ltd (1988) BCL 91 (facsimile); Pivot v Hoechst [2000] VSC 262 (facsimile); Egis Consulting Australia Pty Ltd v First Dynasty Mines Ltd [2001] WASC 224 (facsimile); Olivaylle Pty Ltd v Flottweg AG (No 4) (2009) 255 ALR 632 (email); Showtime Touring Group Pty Ltd v Mosley [2010] NSWSC 974. 195. [1980] Qd R 543. 196. [1983] 2 AC 34 at 36 per Lord Wilberforce. 197. [1986] WAR 244. 198. (2009) 255 ALR 632 at 642. 199. See, generally, J Hogan-Doran ‘Jurisdiction in Cyberspace: the When and Where of On-line Contracts’

(2003) 77 ALJ 377. 200. Electronic Transactions Act 2001 (ACT); Electronic Transactions Act 2000 (NSW); Electronic Transactions (Northern Territory) Act 2000; Electronic Transactions (Queensland) Act 2001; Electronic Transactions Act 2000 (SA); Electronic Transactions Act 2000 (Tas); Electronic Transactions Act 2000 (Vic); Electronic Transactions Act 2003 (WA). 201. Victoria v Hansen [1960] VR 582, but see the discussion by Browne-Wilkinson VC in Re Jogia [1988] 2 All ER 328 at 338. 202. Nominal Defendant v Motor Vehicle Insurance Trust of Western Australia [1983] 3 NSWLR 509. 203. (1967) 62 DLR (2d) 138 at 142. 204. (1989) 18 NSWLR 172 at 189–90. 205. Sheldon Pallet Manufacturing Co Pty Ltd v New Zealand Forest Products Ltd [1975] 1 NSWLR 141 at 147 per Master Cantor QC. 206. As to when an agent ‘carries on business’ in the forum, see Williams v The Society of Lloyd’s [1994] 1 VR 274 at 306–7 per McDonald J (the fact that foreign agent’s commission agent was resident in the forum did not mean that the agent itself carried on business there). 207. National Mortgage and Agency Co of New Zealand v Gosselin (1922) 38 TLR 832; HC Sleigh Ltd v Barty Clarke & Co Ltd [1954] SASR 49; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725 at 746 per Murray J (the rule contemplates cases where ‘although the agent did not make the contract, nevertheless the contract when made could be said to have been made through the efforts and intervention of the agent’). 208. Union International Insce Co Ltd v Jubilee Insce Co [1991] 1 All ER 740. 209. [1999] 2 VR 681 at 694. 210. Weckstrom v Hyson [1966] VR 277 at 282 per McInerney AJ. 211. See note 210 above at 285. 212. But see the criticism by Kelly and Turner in their note: (1967) 16 ICLQ 800 at 801 note 7. 213. See Megaw LJ in Armar Shipping Co Ltd v Caisse Algerienne d’Assurance et de Reassurance (The Armar) [1981] 1 All ER 498 at 505. 214. FCR 10.42 item 2; CPR (ACT) r 6501(h) (requiring the breach in the Australian Capital Territory to be one that makes impossible the performance of a part of the contract that ought to be performed in the Australian Capital Territory); UCPR 2005 (NSW) Sch 6(c)(iv); 2000, O 7.01(1)(g); UCPR 1999 (Qld) r 124(1)(h); SCCR 2006 (SA) r 40(1)(e); SCR 2000 (Tas) r 147A(1)(h)(iv); O 7.01(1)(g); SCR (WA) O 10 r 1(f). 215. (1970) 72 SR (NSW) 146 at 149; [1970] 1 NSWR 70; (1970) 15 FLR 292. 216. See note 215 above at 150. 217. Stanley Kerr Holdings v Gibor Textile Enterprises Pty Ltd [1978] 2 NSWLR 372. 218. [1966] VR 277. 219. (1970) 72 SR (NSW) 146. 220. Liftronic Pty Ltd v Montgomery Elevator Co (1996) ATPR 41-458; Showtime Touring Group Pty Ltd v Mosley Touring Inc. [2010] NSWSC 974. 221. See, for example, Wainwright & Son Pty Ltd v Gibson [1921] VLR 8; Lewis Construction Co Pty Ltd v Tichauer SA [1966] VR 341; Hampstead Meats Pty Ltd v Emerson and Yates Pty Ltd [1967] SASR 109 at 114 per Bright J.

See, for example, Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539; 149 222. ALR 134 (contract for funds to be sent from Denmark to Australia breached in Australia when funds not sent). 223. BP Australia v Wales [1982] Qd R 386. 224. Gosman v Ockerby [1908] VLR 298 at 305–6 per Cussen J; Earthworks and Quarries Ltd v Eastment & Sons Pty Ltd [1966] VR 24 at 26–7. 225. Schweitzer v Kronen Verwaltungs GmbH [1998] VSC 190 (claim for payment on quantum meruit basis for work done in Victoria served on defendant in Germany because payment allegedly due in Victoria and therefore alleged breach occurred in Victoria). 226. Coates as Liquidator of Campus Holidays Ltd v Charles Porter & Sons Pty Ltd (1990) 2 ACSR 733. 227. Victoria v Hansen [1960] VR 582. 228. Cuban Atlantic Sugar Sales Corp v San Elefterio (C/V) Ltd [1960] 1 QB 187. 229. Oppenheimer v Louis Rosenthal & Co AG [1937] 1 All ER 23. 230. (1988) 49 SASR 380. 231. FCR 10.42 item 4 (and High Court: see note 52 above); CPR (ACT) r 6501(1)(k); UCPR 2005 (NSW) Sch 6 para (d); SCR (NT) r 7.01(1)(j); UCPR 1999 (Qld) r 124(1)(k); SCCR (SA) r 40(1)(f)(i); SCR 2000 (Tas) r 147A(1)(c); SC(GCP)R (Vic) r 7.01(1)(h)(i); SCR (WA) O 10 r 1(1)(k). 232. FCR 10.42 item 5 (and High Court: see note 52 above); CPR (ACT) r 6501(1)(l); UCPR 2005 (NSW) Sch 6 para (e); SCR (NT) r 7.01(1)(k); UCPR 1999 (Qld) r 124(1)(l); SCCR (SA) r 40(1)(f)(ii); SCR 2000 (Tas) r 147A(1)(d); SC(GCP)R (Vic) r 7.01(1)(j). 233. Flaherty v Girgis (1985) 4 NSWLR 248 at 266 per McHugh JA; Brix-Neilson v Oceaneering Australia Pty Ltd [1982] 2 NSWLR 173; Challenor v Douglas [1983] 2 NSWLR 405 at 409 per Cross J; Darrell Lea Chocolate Shops Pty Ltd v Spanish-Polish Shipping Co Inc (The ‘Katowice II’) (1990) 25 NSWLR 568 at 577 per Carruthers J; Colosseum Investment Holdings Ltd v Vanguard Logistics Services Pty Ltd [2005] NSWSC 803 at [41] per Palmer J; Heilbrunn v Lightwood PLC [2007] FCA 433 at [10] per Allsop J; Sigma Coachair Group Pty Ltd v Bock Australia Pty Ltd [2009] NSWSC 684 at [124] per Hall J. 234. Barack v University of New South Wales [2011] NSWSC 431. 235. Victorian Workcover Authority v Orientstar Shipping Corp [2004] VSCA 237 at [8] per Ormiston JA. See also Barack v University of New South Wales [2011] NSWSC 431. 236. [1989] VR 407. Distinguished in Shantou Hesheng Commercial Development Co v P & O Swire Containers Ltd [1999] 3 VR 478 at 481–2 per Byrne J (Chinese plaintiff sued in Victoria; defendant’s statutory contribution claim was not for damage suffered in Victoria because plaintiff’s loss was suffered in China). 237. Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458 at 466 per Lord Pearson. 238. Metall und Rohstoff AG v Donaldson Lufkin and Jenrette Inc [1990] QB 391. But see Granite Springs Pty Ltd v Intercooler Water Dispensers Pty Ltd [2000] VSC 224 at [19]–[21] per Warren J, considering expert evidence about whether the law of Quebec would characterise plaintiff’s claim as contractual or tortious. 239. [1971] AC 458 at 468. 240. Lewis Construction Co Pty Ltd v Tichauer SA [1966] VR 34; Buttigeig v Universal Terminal and Stevedoring Corp [1972] VR 626; MacGregor v Application des Gaz [1976] Qd R 175; Hall v Australian Capital Territory Electricity Authority [1980] 2 NSWLR 26. 241. Jacobs v Australian Abrasives Ltd [1971] Tas SR 92; My v Toyota Motor Co Ltd [1977] 2 NZLR 113;

Castree v Squibb Ltd [1980] 2 All ER 589; D’Ath v TNT Australia Pty Ltd [1992] 1 Qd R 369. See also Moran v Pyle National Canada Ltd (1975) 1 SCR 393. Compare ICI Australia Operations Pty Ltd v Kidde-Graviner Ltd [1999] WASCA 65. 242. Bata v Bata (1948) 92 Sol Jo 574; Eyre v Nationwide News Pty Ltd [1967] NZLR 851; Berezovsky v Michaels [2000] 2 All ER 986 (HL). 243. (2002) 210 CLR 575; 194 ALR 433. 244. See note 241 above at CLR 600; ALR 440 at [26]. 245. [1979] 1 QB 333. 246. Cordoba Shipping Co Ltd v National State Bank (The Albaforth) [1984] 2 Lloyd’s Rep 91. 247. (1990) 171 CLR 538 at 569 per Mason CJ, Deane, Dawson and Gaudron JJ. 248. See note 245 above at 568 per Mason CJ, Deane, Dawson and Gaudron JJ. 249. [1990] 1 QB 391 at 449. 250. (1988) 49 SASR 380. 251. See Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 548; 149 ALR 134 at 142. 252. See note 234 above. The Australian Consumer Law, as did the Trade Practices Act, applies to conduct outside Australia by bodies corporate incorporated or carrying on business within Australia or by Australian citizens or persons ordinarily resident within Australia: see s 5(1). However, if the plaintiff brings a claim for damages for breach of the misleading and deceptive conduct provisions in such a case, he or she must obtain the written consent of the minister in order to rely on the conduct occurring outside Australia: see s 5(3). 253. CPR (ACT) r 6501(1)(a); UCPR 2005 (NSW) Sch 6 para (a); UCPR 1999 (Qld) r 124(1)(a); SCR 2000 (Tas) r 147A(1)(b). 254. See Nominal Defendant v Motor Vehicle Insurance Trust of Western Australia [1983] 3 NSWLR 309 at 315–16 per Miles J (service outside New South Wales of proceeding based on cause of action arising in New South Wales based on Western Australian Act). 255. Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539; 149 ALR 134, following Jackson v Spittall (1870) LR 5 CP 542; Delco Australia Pty Ltd v Equipment Enterprises Inc (2000) 100 FCR 385 at 391, at [26] per von Doussa J; Traxon Industries Pty Ltd v Emerson Electric Co (No 2) [2006] FCA 630 at [76] per French J. 256. Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (1993) 44 FCR 485; Strike v Dive Queensland Inc (1998) ATPR ¶41–605; Sedgwick Ltd v Bain Clarkson Ltd (1994) 56 FCR 579; Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539; 149 ALR 133; Delco Australia Pty Ltd v Equipment Enterprises Incorp (2000) 100 FCR 385 at 391, at [27] per von Doussa J; Pulido v R S Distributions Pty Ltd (2003) 177 FLR 401; Sigma Coachair Group Pty Ltd v Bock Australia Pty Ltd [2009] NSWSC 684 at [48] per Hall J. See also Ramsey v Vogler [2000] NSWCA 260 (State Fair Trading Act). 257. Showtime Touring Group Pty Ltd v Mosley Touring Inc (2013) 296 ALR 597. 258. SCCR (SA) r 40(1)(k). 259. CPR (ACT) r 6501(1)(t)(i). 260. UCPR 2005 (NSW) Sch 6 para (r); UCPR 1999 (Qld) r 124(1)(t)(i); SCR 2000 (Tas) r 147A(1)(k)(i). 261. See, for example, Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 (analogy of deceit used in determining rules for measure of damages in misleading and deceptive conduct cases).

262. [1994] 1 VR 274 at 311–12. 263. See note 262 above, quoting Philip Morris Ltd v Ainley [1975] VR 345 at 349 per Menhennitt J. 264. [1999] 2 VR 681 at 698–9 per Byrne J. 265. Borch v Answer Products Inc [2000] QSC 379 at [20] per Holmes J. See also Jonstan Pty Ltd v Nicholson (2003) 58 NSWLR 223. 266. [2001] VSC 511. 267. [2012] WASC 376. 268. Perdaman Chemicals and Fertilizers Pty Ltd v ICICI Bank [2013] FCA 175. 269. Legislation Act 2001 (ACT) s 97(1). 270. FCR 10.42 items 13, 14; UCPR 2005 (NSW) Sch 6 paras (r), (s); UCPR 1999 (Qld) r 124(1)(u); SCR 2000 (Tas) r 147A(1)(k)(ii), (l). 271. FCR 10.42 item 18(a); CPR (ACT) r 6501(1)(d)(i); UCPR 2005 (NSW) Sch 6 para (g); SCR (NT) r 7.01(1)(c); UCPR 1999 (Qld) r 124(1)(d); SCCR (SA) r 40(1)(b); SCR 2000 (Tas) r 147A(1)(a); SC(GCP)R (Vic) r 7.01(1)(c); SCR (WA) O 10 r 1(1)(c). 272. FCR 10.42 item 18(b); CPR (ACT) r 6501(1)(d)(ii)–(iv). 273. Williams v United States and Australasia SS Co (1908) 25 WN (NSW) 43. 274. BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725 at 740. 275. FCR 10.42 item 19; CPR (ACT) r 6501(1)(r); UCPR 2005 (NSW) Sch 6 para (h); SCR (NT) r 7.01(1) (h); UCPR 1999 (Qld) r 124(1)(i); SCCR (SA) r 40(1)(l); SCR 2000 (Tas) r 147A(1)(f); SC(GCP)R (Vic) r 7.01(1)(h). 276. Mondial Trading Pty Ltd v Interocean Marine Transport Inc (1985) 65 ALR 155. 277. FCR 10.42 item 20; CPR (ACT) r 6501(1)(p); UCPR 2005 (NSW) Sch 6 para (i); SCR (NT) r 7.01(1) (n); UCPR 1999 (Qld) r 124(1)(p); SCCR (SA) r 40(1)(c); SCR 2000 (Tas) r 147A(1)(g); SC(GCP)R (Vic) r 7.01(1)(l); SCR (WA) O 10 r 1(1)(h). 278. John Russell and Co Ltd v Cayzer, Irvine and Co Ltd [1916] 2 AC 298; Amanuel v Alexandros Shipping Co [1986] QB 464; Darrell Lea Chocolate Shops Pty Ltd v Spanish-Polish Shipping Co Inc (The Katowice II) (1990) 25 NSWLR 568 at 574 per Carruthers J. 279. Costa Vraca Pty Ltd v Bell Regal Pty Ltd [2003] FCAFC 305 at [17] per Ryan, Kiefel and Gyles JJ. 280. See note 279 above. For an expansive decision in this area, see Re Mustang Marine Australia Services Pty Ltd (in liq) [2013] NSWSC 360. 281. SCR (NT) r 7.01(1)(n); SCCR (SA) r 40(1)(c); SC(GCP)R (Vic) r 7.01(1)(l). 282. John Russell and Co Ltd v Cayzer, Irvine and Co Ltd [1916] 2 AC 298; Amanuel v Alexandros Shipping Co [1986] QB 464; Darrell Lea Chocolate Shops Pty Ltd v Spanish-Polish Shipping Co Inc (The Katowice II) (1990) 25 NSWLR 568. 283. See note 281 above. 284. [1969] NZLR 46 at 49. 285. Tyne Improvement Commissioners v Armement Anversois SA (The Brabo) [1949] AC 326. 286. Multinational Gas and Petrochemical Co v Multinational Gas and Petrochemical Services Ltd [1983] 1 Ch 258. 287. OZ-US Film Productions Pty Ltd v Heath [2001] NSWSC 298 at [30] per McLaughlin M. 288. Multinational Gas and Petrochemical Co v Multinational Gas and Petrochemical Services Ltd [1983] 1

Ch 258. 289. Bank of New South Wales v Commonwealth Steel Co Ltd [1983] 1 NSWLR 69; Colosseum Investment Holdings Ltd v Vanguard Logistics Services Pty Ltd [2005] NSWSC 803 at [53] per Palmer J. 290. [1960] VR 266. 291. Elders IXL Ltd v Lindgren Pty Ltd (1987) 79 ALR 411; Westpac Banking Corp v P & O Containers Ltd (1991) 102 ALR 239; Australian Insce Brokers Ltd v Hudig Langeveldt Pty Ltd (No 2) (1991) 7 WAR 343. 292. FCR 10.42 item 17 (and High Court: see note 52 above); CPR (ACT) r 6501(1)(n); UCPR 2005 (NSW) Sch 6 para (f); UCPR 1999 (Qld) r 124(1)(n); SCR 2000 (Tas) r 147A(1)(i). 293. SCR (NT) r 7.07(3); SC(GCP)R (Vic) r 7.07(3). 294. [1989] VR 407 at 411–12 per Young CJ, Marks and Ormiston JJ. 295. FCR 10.42 item 21; CPR (ACT) r 6501(1)(b)(i), (s); UCPR 2005 (NSW) Sch 6 para (j); UCPR 1999 (Qld) r 124(1)(b)(i); SCR 2000 (Tas) r 147A(1)(e). 296. SCCR (SA) r 40(1)(a)(i). 297. SCR (WA) O 10 r 1(1)(a)(i). 298. SCR (NT) r 7.01(1)(a); SC(GCP)R (Vic) r 7.01(1)(a). 299. FCR 10.42 item 22 (and High Court: see note 52 above); CPR (ACT) r 6501(1)(b)(ii); UCPR 2005 (NSW) Sch 6 para (k); UCPR 1999 (Qld) r 124(1)(b)(ii); SCR 2000 (Tas) r 147A(1)(j); SCR (WA) O 10 r 1(1)(a)(i) (only in relation to land within Western Australia). 300. FCR 10.42 item 6; CPR (ACT) r 6501(1)(c); UCPR 2005 (NSW) Sch 6 paras (l), (m); UCPR 1999 (Qld) r 124(1)(c), (t)(ii); SCR 2000 (Tas) r 147A(1)(m), (n). 301. SCCR (SA) r 40(1)(a)(ii). 302. SCR (NT) r 7.01(1)(p); SC(GCP)R (Vic) r 7.01(1)(m); SCR (WA) O 10 r 1(1)(j). 303. Victoria v Hansen [1960] VR 582 at 586; Hall v Australian Capital Territory Electricity Authority [1980] 2 NSWLR 26. See also Kwee Seng Chio v Basuki [2002] WASC 60. 304. See Tana v Baxter (1986) 160 CLR 572. 305. Saltram Wine Estates Pty Ltd v Independent Stave Co (1992) 57 SASR 156. 306. (1884) 14 QBD 78. 307. Kaye v Sutherland (1887) 20 QBD 147. 308. Tassell v Hallen [1892] 1 QB 321. 309. [1980] 2 NSWLR 73. 310. BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725. 311. [1938] NZLR 563. 312. [1928] NZLR 427. 313. Shire of Yeerongpilly v Love (1906) 1 QJPR 73. 314. Victoria v Hansen [1960] VR 582. 315. FCR 10.42 item 23; CPR (ACT) r 6501(1)(o); UCPR 2005 (NSW) Sch 6 para (n); SCR (NT) r 7.01(1) (m); UCPR 1999 (Qld) r 124(1)(o); SCCR (SA) r 40(1)(m); SCR 2000 (Tas) r 147A(1) (o); SC(GCP)R (Vic) r 7.01(1)(k); SCR (WA) O 10 r 1(1)(g). 316. Dunlop Rubber Co Ltd v Dunlop [1921] 1 AC 367.

317. Rosler v Hilbery [1925] Ch 250. 318. James North & Sons Ltd v North Cape Textiles Ltd [1984] 1 WLR 1428. As to mandatory injunctions, see BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725 at 752 per Murray J. 319. (1999) 198 CLR 380 320. CPR (ACT) r 6501(1)(e)(i); UCPR 2005 (NSW) Sch 6 para (o); SCR (NT) r 7.01(1)(d); UCPR 1999 (Qld) r 124(1)(e)(i); SCCR (SA) r 40(1)(h); SCR 2000 (Tas) r 147A(1)(p)(i); SC(GCP)R (Vic) r 7.01(1) (d); SCR (WA) O 10 r 1(1)(d). 321. CPR (ACT) r 6501(1)(e)(ii); UCPR 2005 (NSW) Sch 6 para (o); SCR (NT) r 7.01(1)(d); UCPR 1999 (Qld) r 124(1)(e)(ii); SCR 2000 (Tas) r 147A(1)(p)(ii); SC(GCP)R (Vic) r 7.01(1)(d); SCR (WA) O 10 r 1(1)(d). 322. Weinstock v Sarnat [2005] NSWSC 744. 323. SCCR (SA) r 40(1)(i). 324. FCR 10.42 item 7; CPR (ACT) r 6501(1)(f); UCPR 2005 (NSW) Sch 6 para (p); SCR (NT) r 7.01(1) (e); UCPR 1999 (Qld) r 124(1)(f); SCCR (SA) r 40(1)(g); SCR 2000 (Tas) r 147A(1)(q); SC(GCP)R (Vic) r 7.01(1)(e); SCR (WA) O 10 r 1(1)(d). 325. Winter v Winter [1984] 1 Ch 421 326. SCR (NT) r 7.01(1)(q); SC(GCP)R (Vic) r 7.01(1)(e); SCR (WA) O 10 r 1(1)(l). 327. CPR (ACT) r 6501(1)(q); UCPR 1999 (Qld) r 124(1)(q). 328. FCR 10.42 items 12, 13; SCR 2000 (Tas) r 147A(1)(k)(i). See 3.83 above. 329. FCR 10.42 item 8 and 24(a); CPR (ACT) r 6501(1)(m)(i)–(iii); UCPR 2005 (NSW) Sch 6 para (q); UCPR 1999 (Qld) r 124(1)(m)(i); SCR 2000 (Tas) r 147A(1)(r)(i). 330. FCR 10.42 item 24(b); CPR (ACT) r 6501(1)(m)(iv); UCPR 2005 (NSW) Sch 6 para (q); UCPR 1999 (Qld) r 124(1)(m)(ii); SCR 2000 (Tas) r 147A(1)(r)(ii). 331. FCR 10.42 items 8, 24(a); CPR (ACT) r 6501(1)(m)(iii); SCR 2000 (Tas) r 147A(1)(r)(i) (‘a corporation in the State’). 332. SCR (WA) O 10 r 1(1)(a)(ii). 333. Victoria v Hansen [1960] VR 582. 334. SCR (WA) O 10 r 1(1)(i). 335. [2012] WASC 500. 336. A narrower construction had been favoured in Deputy Commissioner of Taxation v Bollands [2012] WASC 143. 337. CPR (ACT) r 6501(1)(j); UCPR 1999 (Qld) r 124(1)(j). 338. FCR 10.42 item 9. 339. FCR 10.42 item 10. 340. UCPR 1999 (Qld) r 124(1)(v). 341. CPR (ACT) r 6501(1)(v); UCPR 2005 (NSW) Sch 6 para (t); SCR 2000 (Tas) r 147A(1)(s). 342. SCCR (SA) r 40(1)(j). 343. CPR (ACT) r 6501(1)(w); UCPR 2005 (NSW) Sch 6 para (u); SCCR (SA) r 40(1)(j); SCR 2000 (Tas) r 147A(1)(t). 344. Perry v Zissis [1977] 1 Lloyd’s Rep 607.

345. FCR 10.42 item 11; UCPR 2005 (NSW) Sch 6 para (v); SCR (NT) r 7.06(a); SCR 2000 (Tas) r 147A(1)(u); SC(GCP)R (Vic) r 7.06(a)(i). 346. CPR (ACT) r 6501(1)(x); SCR (NT) r 7.06(a); UCPR 1999 (Qld) r 124(1)(w); SC(GCP)R (Vic) r 7.06(a)(ii). 347. CPR (ACT) r 6501(1)(y); UCPR 1999 (Qld) r 124(1)(x). 348. Webster Computer Systems Pty Ltd v Fujitsu Ltd [2007] FCA 825 at [12] per Conti J; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd [2009] FCA 735. 349. SCR 2000 (Tas) r 147A(1). 350. UCPR 2005 (NSW) Sch 6 para (w). 351. Delco Australia Pty Ltd v Equipment Enterprises Inc (2000) 100 FCR 385 at 394, at [35] per von Doussa J; Traxon Industries Pty Ltd v Emerson Electric Co (2006) 230 ALR 297 at 310–11, at [63]– [64] per French J; Traxon Industries Pty Ltd v Emerson Electric Co (No 2) [2006] FCA 630 at [77] per French J. These decisions relate to the old FCR O 8 r 1(n), which had the same form as the existing New South Wales rule. The Federal Court Rules have since been changed to allow service out of a proceeding falling partly within one of the enumerated heads: see FCR O 8 r 2, discussed at 3.40 above. These authorities are therefore no longer significant in relation to interpretation of the Federal Court Rules: see Webster Computer Systems Pty Ltd v Fujitsu Ltd [2007] FCA 825 at [11]–[12] per Conti J. 352. Matthews v Kuwait Bechtel Corp [1959] 2 QB 57. 353. See Williams v Society of Lloyd’s [1994] 1 VR 274 at 291–2 per McDonald J. 354. Vogel v R & A Kohnstamm Ltd [1973] QB 133. See also Bulldogs Rugby League Club Ltd v Williams [2008] NSWSC 822 at [32]. 355. Mondial Trading Pty Ltd v Interocean Marine Transport Inc (1985) 65 ALR 155; Ricegrowers CoOperative Ltd v ABC Containerline NV (1996) 138 ALR 480; Federal Commissioner of Taxation v Ma (1999) 92 FCR 569. 356. FCR 10.42 item 19 (and High Court: see note 52 above); CPR (ACT) r 6501(1)(r); UCPR 2005 (NSW) Sch 6 para (h); SCR (NT) r 7.01(1)(h); UCPR 1999 (Qld) r 124(1)(i); SCCR (SA) r 40(1) (l); SCR 2000 (Tas) r 147A(1)(f); SC(GCP)R (Vic) r 7.01(1)(h). 357. Tharsis Sulphur Co v Societe Industrielle des Metaux (1889) 58 LJQB 435. 358. SCF Finance Co Ltd v Masri (No 3) [1987] 1 All ER 194 at 204 per Ralph Gibson LJ. 359. Boyle v Sacker (1888) 39 Ch D 249; Granozcski v Shaw (1896) 7 QLJ 18. 360. It has been held that a party may withdraw a pleading filed in error: Finnish Marine Insce Co Ltd v Protective National Insce Co Ltd [1989] 2 All ER 929. 361. Perkins v Williams (1900) 17 WN (NSW) 135. But compare KMP Coastal Oil Pte Ltd v MV Iran Amanat (FCA, Tamberlin J, 1996, BC9605070, unreported) (reversed on other grounds: (1999) 196 CLR 130), where Tamberlin J held that an unconditional appearance for the purpose of applying for release of an arrested ship and contesting jurisdiction did not constitute submission, despite the possibility of making a conditional appearance. 362. McManus v Clouter (No 2) (1980) 29 ALR 101 at 112–13 per McLelland J. For a somewhat surprising result of filing a conditional appearance under then O 8 r 6 in the Federal Court, see Westpac Banking Corp v P & O Containers Ltd (1991) 105 ALR 90 at 93 per Pincus J. 363. UCPR 2005 (NSW) r 6.1(2)(a); SCR (NT) r 8.09; SCR 2000 (Tas) r 167; SC(GCP)R (Vic) r 8.09; SCR (WA) O 12 r 7.

364. FCR 13.01(3) 365. White v Hardwick (1922) 23 SR (NSW) 6. 366. Pico Holdings Inc v Dominion Capital Pty Ltd [2001] VSC 333. 367. National Commercial Bank v Wimborne (1979) 11 NSWLR 156 at 181 per Holland J. 368. Williams and Glyn’s Bank plc v Astro Dinamico Cia Naviera SA [1984] 1 All ER 760 (HL); Protec Pacific Pty Ltd v Steuler Industriewerke GmbH [2007] VSC 93. 369. See, for example, KMP Coastal Oil Pte Ltd v MV Iran Amanat (FCA, Tamberlin J, 1996, BC9605070, unreported); reversed on other grounds: (1999) 196 CLR 130. 370. Laurie v Carroll (1958) 98 CLR 310 at 355, 356; National Commercial Bank v Wimborne (1979) 11 NSWLR 156 at 181 per Holland J. 371. [1956] VLR 215 at 220. 372. [1964] VR 820 at 826. Sholl J’s view was cited with approval in ACN 076 676 438 Pty Ltd (in liq) v AComms Teledata Pty Ltd [2000] WASC 214 at [15] per Parker J. 373. Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223. 374. National Commercial Bank v Wimborne (1979) 11 NSWLR 156; Nudd v Taylor [2000] QSC 343. 375. [1893] AC 602. 376. See note 375 above at 652 per Lord Herschell LC. 377. In Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 520, the High Court ‘reserved for further consideration in an appropriate case’ the Moçambique rule. In Singh v Singh (2009) 253 ALR 575 at 582, the Western Australian Court of Appeal noted that, until this occurs, it would be advisable to treat the rule as ‘good law’. 378. (1906) 3 CLR 479. 379. (1972) 20 FLR 30. 380. See Chapter 6 above. 381. (1997) 141 FLR 467. 382. [1998] 2 Qd R 385. 383. Coastal Waters (State Title) Act 1980 (Cth) s 5. 384. [1979] AC 508. 385. See note 384 above at 536 citing Scarman LJ in the Court of Appeal below: [1978] QB 205 at 231. 386. Civil Jurisdiction and Judgments Act 1982 (United Kingdom) s 30(1). 387. (1917) 23 CLR 482. 388. [1982] 2 NSWLR 557. 389. See note 386 above at 558. 390. [1997] 1 VR 428. 391. See note 390 above at 441–2. 392. See note 390 above at 442–3. 393. See note 390 above at 443–4. 394. See note 390 above at 441. 395. (1987) 72 ALR 241. Cf. Webb v Webb [1992] 1 All ER 17.

396. Hesperides Hotels Ltd v Muftizade [1979] AC 508. 397. R v O’Neill; Ex parte Moran (1985) 58 ACTR 26. 398. In Balajan v Nikitin (1994) 35 NSWLR 51, jurisdiction was declined in a claim for family provision where both the land was situated outside New South Wales and the deceased had died domiciled outside New South Wales. See also Re Doyle; Ex parte Brien v Doyle (1993) 41 FCR 40; Du Bray v McIlwraith [2009] NSWSC 888. 399. Talacko v Talacko [2009] VSC 349. 400. (1750) 1 Ves Sen 444; 27 ER 1132. 401. [1969] 2 Ch 424. See also Webb v Webb [1994] 1 QB 696. 402. [2005] Ch 153. 403. Couzens v Negri [1981] VR 824; Nudd v Taylor [2000] QSC 344, BC200005913. See also Tritech Technology Pty Ltd v Gordon (2000) 48 IPR 52 (trust in respect of foreign patents). 404. Duder v Amsterdamsch Trustees Kantoor [1902] 2 Ch 132. 405. [2000] QSC 344; BC200005913. 406. Wilkie v Fattorini (1862) 1 SCR (NSW) Eq 32. 407. [1908] 1 Ch 856 at 863. 408. St Pierre v South American Stores Ltd [1936] 1 KB 382. 409. Dawson v Perpetual Trustee Co Ltd (1953) 89 CLR 138. 410. Webb v Webb [1994] 1 QB 696. 411. Nudd v Taylor [2000] QSC 344. 412. Beckford v Kemble (1822) 1 Sim & St 7; 57 ER 3. 413. Paget v Ede (1874) LR 18 Eq 118. 414. Inglis v Commonwealth Trading Bank (1972) 20 FLR 30. 415. (1894) 23 SC 716. 416. (1796) 3 Ves 170; 30 ER 952. 417. (2009) 253 ALR 575. 418. [1970] AC 179. 419. See note 418 above at 228 per Lord Pearce. 420. (1848) 2 Ph 774; 41 ER 1143. 421. Deschamps v Miller [1908] 1 Ch 856. 422. See note 421 above. 423. Norris v Chambres (1861) 29 Beav 246; 54 ER 621. 424. Mercantile Investment & General Trust Co v River Plate Trust, Loan and Agency Co [1892] 2 Ch 303. 425. The Tolten [1946] P 135. 426. Re Duke of Wellington [1948] Ch 118. 427. [1893] AC 602 at 626. 428. Sykes and Pryles, Australian Private International Law, 3rd ed, Law Book Co, 1991, p 62. 429. [2000] QSC 344.

430. See note 429 above at [7], quoting Dicey and Morris, Conflict of Laws, 13th ed, 1999, p 954. 431. [1997] 1 VR 428 at 441, quoted above in the text to note 394 above. 432. (1906) 3 CLR 479. 433. In Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 520, the High Court also ‘reserved for further consideration in an appropriate case’ the decision in Potter. Caution as to the correctness of Potter was repeated in R v Moti (2011) 245 CLR 456 at [49]. 434. [1991] Ch 75. 435. (2000) 48 IPR 52 at 58 per Finkelstein J. 436. See note 435 above. 437. (2011) 245 CLR 456 at [49]. 438. N Steinhardt & Son Ltd v Meth Patents Pty Ltd (1960) 34 ALJR 372 at 374.

[page 84]

Chapter 4

Interlocutory Relief Introduction 4.1 In the course of litigation involving a foreign defendant it may be necessary to seek interlocutory relief such as the issue of a subpoena, the granting of an interlocutory injunction or an Anton Piller order1 or a Mareva order.2 On the other side, a defendant may seek a temporary stay of Australian proceedings pending determination of foreign proceedings.3 When the person against whom interlocutory relief is sought has validly been made a party to the substantive proceedings within the forum, few problems of jurisdiction in ancillary matters arise. With some exceptions, the court has jurisdiction to make the orders sought; the question is whether it should do so if the defendant is outside the jurisdiction. More difficult questions arise where the person in relation to whom interlocutory relief is sought is a third party or a defendant who has not yet been served in the substantive proceedings. 4.2 Any summons, notice or order that is intended to have coercive effect on a person outside the jurisdiction must be served on that person in accordance with the provisions for service out of the jurisdiction. If those provisions are not complied with, the service may be set aside as an abuse of process.4 Service of ancillary process within Australia is dealt with in the Service and Execution of Process Act 1992 (Cth). Under s 27 of that Act, ancillary process, other than a subpoena, issued out of any court in a state or territory may be served in another part of Australia in the same manner as initiating process.5 If service is to be effected outside Australia, recourse must be had to the provisions for the service of documents other than originating process.6 Those provisions relate only to service of ancillary process in proceedings that have been commenced

[page 85] by valid service of originating process. In Carnegie Corp v Pursuit Dynamics Plc,7 French J, then of the Federal Court of Australia, held that an application for preliminary discovery before commencement of proceedings could not be served outside Australia. Because proceedings had not yet been commenced, the applicant could not rely on the Federal Court Rule permitting service outside Australia of documents other than originating process, so French J had to decide whether an application for preliminary discovery was in itself an ‘originating process’ that could be served outside Australia under the Rules relating to service of originating process. His Honour held that an application for preliminary discovery was an ‘originating process’ because it was ‘an application commencing a proceeding’,8 but it could not be served outside Australia because it did not fall within the categories of ‘originating process’ for which service outside Australia is permitted.9 Although the underlying claim might have fallen within one of the categories where service out was permitted, the application for preliminary discovery did not.10 Besanko J took a different and broader view on this question in Gearheart United Pty Ltd v Omni Oil Technologies (Asia) Sdn Bhd.11 In Waller v Freehills,12 a Full Court of the Federal Court of Australia held that an examination summons under ss 596A and 596B of the Corporations Act 2001 (Cth) was not an ‘originating process’ for the purpose of the Federal Court Rules. 4.3 Even when the court has power to serve ancillary process outside Australia, it does not necessarily follow that the court will exercise that power. This chapter is principally concerned with the principles governing exercise of the power to order service outside Australia of applications for interlocutory relief. 4.4 Since interlocutory orders are generally of an ancillary nature, the question arises whether a court can make them in circumstances when it will not be giving final judgment on the underlying claim. To put the same question another way, does an Australian court have jurisdiction to do no more than grant interlocutory relief in a case in which substantive relief will be given by a foreign court or arbitral tribunal? 4.5 This question has attracted much attention at the highest level in England. In The Siskina,13 the House of Lords held that an English court has no power to make an interlocutory injunction except in protection or assertion of some legal or equitable right which it has jurisdiction to enforce by final judgment. A majority of

[page 86] the House of Lords questioned that restriction in Channel Tunnel Group v Balfour Beatty Ltd,14 where the court was asked to grant an interlocutory injunction in a case where the presence of a foreign arbitration agreement required the underlying proceedings to be stayed, although on the facts of the case the House of Lords unanimously declined to grant the relief sought. Nevertheless, the Privy Council reaffirmed the Siskina principle in Mercedes Benz AG v Leiduck,15 holding that the forum court (in that case, the High Court of Hong Kong) had no power to grant an interlocutory injunction when the plaintiff had not made any claim for substantive relief that could properly be tried within the forum. 4.6 In ABC v Lenah Game Meats Pty Ltd,16 a majority of the High Court of Australia accepted a proposition very similar to that stated in The Siskina, namely that an interlocutory injunction should not be granted in a case where no legal or equitable rights have been asserted that might be enforced by final judgment. Lenah Game Meats was not a transnational case involving proceedings in another jurisdiction, but Gummow and Hayne JJ cited The Siskina as authority for the proposition that an interlocutory injunction can only be granted in protection or assertion of some legal or equitable right that the court has jurisdiction to enforce by final judgment.17 Unless and until Lenah Game Meats is distinguished by the High Court of Australia in transnational proceedings, it should therefore be regarded as Australian authority for the Siskina-like proposition that an Australian court cannot grant an interlocutory injunction in aid of foreign proceedings. However, the interlocutory injunctions sought in The Siskina itself and Mercedes Benz (see 4.5) were Mareva injunctions. After the decision of the High Court of Australia in Cardile v LED Builders Pty Ltd,18 Australian Mareva or freezing orders are no longer regarded as injunctions but as orders designed to prevent frustration of the court’s process or to further the administration of justice. Thus, although there are pre-Cardile examples of Australian courts refusing to grant Mareva injunctions (as they were then understood to be) in support of foreign proceedings,19 the position after Cardile is that although an interlocutory injunction may not be ordered in relation to foreign proceedings, a Mareva order may be. In Davis v Turning Properties Pty Ltd,20 Campbell J of the Supreme Court of New South Wales made a Mareva order to give effect in New South Wales to a Mareva order previously made by the Supreme Court of the Bahamas. In Celtic Resources

Holdings plc v Arduina Holding BV,21 Hasluck J of the Supreme Court of Western Australia was prepared to accept, following Davis, that in certain circumstances Australian superior courts have an inherent jurisdiction to grant Mareva relief in relation to assets in Australia where a foreign judgment has been or is to be obtained. That position was confirmed as to the inherent jurisdiction of an [page 87] Australian state Supreme Court to make such an order in BCBC Singapore Pte Ltd v PT Bayan Resources TBK [No 3].22 In this case, Le Miere J restrained the transfer by an Indonesian company of shares held by it in an Australian company, in circumstances where the Indonesian company was being sued in Singapore by the plaintiff, who proposed to enforce any prospective Singaporean judgment in Australia pursuant to the Foreign Judgments Act 1991 (Cth).23

Subpoenas and Summonses for Examination Within Australia and in New Zealand 4.7 Within Australia, a subpoena issued by any court in a state or territory may be served pursuant to s 29 of the Service and Execution of Process Act 1992 (Cth) in another part of Australia in the same way as required in the place of issue. Service is effective only if the subpoena contains an address for service; the period for compliance is not less than 14 days unless an order for the shortening of time has been obtained; copies of prescribed notices advising the person served of their rights and of any order shortening time for compliance are attached; and sufficient money to cover expenses is paid or tendered to the person served.24 Under s 34 of the Act a subpoena that requires only the production of documents may be complied with without personal attendance by delivering the documents to the appropriate court official at least 24 hours before the expiry of the period for compliance. Under s 33 of the Act the person served may exercise such right as that person has under the law of the place of issue of the subpoena to apply to have the

subpoena set aside or obtain other relief in respect of it. The application may be made and served by fax, and the court may determine the application without a hearing unless objection is made. If a hearing is held, it may be conducted by video link or telephone. 4.8 Part 2 of the Evidence and Procedure (New Zealand) Act 1994 (Cth) makes provision for the service of Australian subpoenas in New Zealand with leave of the relevant Australian court. The Act does not apply to criminal or family proceedings.25 The Federal Court26 and superior and inferior courts in every Australian jurisdiction (including Norfork Island) except those in Victoria27 are authorised to give leave to serve a subpoena in New Zealand.28 If a witness in New Zealand refuses to obey [page 88] a subpoena validly issued by an Australian court, they may be compelled to do so under the Evidence Amendment Act 1994 (NZ). Section 16(1) of that Act provides that the High Court of New Zealand may issue a warrant for the arrest of the witness if it receives from the relevant Australian court a certificate stating that the witness has failed to comply with the subpoena.

Outside Australia in countries other than New Zealand 4.9 In relation to subpoenas to be served outside Australia, it must first be determined whether the relevant court rules authorise service. The Civil Procedure Rules in South Australia and Tasmania only provide for service outside Australia of originating process and freezing orders.29 In Ward v Interag Pty Ltd,30 Master Allen QC of the Supreme Court of Queensland concluded that a subpoena was not a ‘summons, order or notice’ for the purposes of the then Queensland Rules, and so it could not be served outside Australia. That form of words no longer appears in the Queensland Rules but it is still used in Victoria, Western Australia and the Northern Territory.31 However, in Gao v Zhu,32 Habersberger J of the Supreme Court of Victoria stated, obiter and without consideration of Ward, that a subpoena for the production of documents is an ‘order’ for the purposes of the relevant Victorian rule because it ‘is in the form of an order of the Court’.33 The more recent decision of Davies J in Levy Schneider

v Caesarstone Australia Pty Ltd34 is authority for the proposition that the Supreme Court of Victoria has power to give leave to serve a subpoena outside Australia. The Rules in the Federal Court, the Australian Capital Territory and New South Wales authorise service outside Australia of any ‘document other than originating process’,35 a phrase broad enough to include a subpoena.36 In Caswell v Sony/ATV Music Publishing (Australia) Pty Ltd,37 Hallen J, after a comprehensive survey of the Australian authorities, concluded that the Supreme Court of New South Wales had power to authorise a subpoena to be served outside Australia, with the burden of convincing the court to accept jurisdiction would be on the party applying for leave, with any doubt to be resolved in favour of the recipient outside Australia, and the court to be careful in acceding to jurisdiction. The relevant Queensland provision now authorises service outside Australia of ‘an application, order, notice or document [page 89] in a pending proceeding’,38 which also seems broad enough in scope to include a subpoena. In Ives v Lim,39 the Western Australian Court of Appeal assumed, without deciding, that the Supreme Court of Western Australia did have jurisdiction to allow service of a subpoena outside of the jurisdiction. In Walker v Newmont Australia Ltd,40 leave was granted by the Federal Court of Australia to issue a subpoena on the proper officer of a Canadian corporation with no presence in Australia at a Sydney address, being the address of a ‘sibling’ Australian company which shared the same parent as the subpoenaed corporation. Because that corporation had commenced answering the subpoena before taking the jurisdictional point, it was held to have submitted to the jurisdiction. 4.10 Even if the power exists to serve a subpoena outside Australia, it does not follow that it should be exercised. In Arhill Pty Ltd v General Terminal Co Pty Ltd,41 Rogers CJ Comm D held that the Supreme Court of New South Wales could grant leave under SCR (NSW) Pt 10 r 342 to serve a subpoena abroad but he cautioned that such an order could, in some instances, involve an infringement of the sovereignty of another country and so the established criteria of international law with regard to comity called for restraint in the exercise of the court’s power. Rogers CJ Comm D said that the court should not subject a

foreigner to a subpoena in respect of conduct outside the jurisdiction unless the utility of the subpoena is clear and the administration of justice cannot be advanced by other means. Similarly, in Stemcor (A/asia) Pty Ltd v Oceanwave Line SA,43 Allsop J found it unnecessary to decide whether he had the power to grant leave to serve a subpoena outside Australia, because he would refuse to exercise that power even if it existed. Allsop J said:44 I would adopt the approach of Rogers CJ Comm D in Arhill and view the service of an order upon a German company demanding that it do something in Australia on pain of punishment in proceedings to which it has not submitted as such an invasion of German sovereignty as not to be contemplated except in the most exceptional circumstances (assuming there to be power) … Such a subpoena, if served … is not capable of enforcement. Without other steps being taken to enlist German governmental assistance (whether executive or judicial), Australian courts cannot enforce compliance on pain of punishment. In the absence of enforcement procedures the order is an empty threat, or the equivalent of a mere request couched in imperative terms. The Court should not be seen to be engaged in such conduct.

In Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International NV,45 a Full Court of the Federal Court of Australia unanimously adopted and applied the principles stated in Arhill and Stemcor in holding that an order for discovery [page 90] should not be made against a non-party in another country, particularly when that non-party was a foreign state. 4.11 In Gao v Zhu,46 Habersberger J exercised similar restraint in relation to a subpoena served within Victoria but which required the subpoenaed party to produce documents held in China. Habersberger J set aside the subpoena, saying that it was an infringement of the sovereignty of the People’s Republic of China because it was an attempt to compel a foreigner, under threat of punishment for contempt, to produce documents in respect of conduct outside the jurisdiction.47 In Schneider v Caesarstone Australia Pty Ltd,48 Davies J said the court should be reluctant to give leave to serve a subpoena abroad in circumstances where the court is unable to enforce compliance. A court will be able to enforce compliance, however, where a foreign subpoenaed party, although not present in Australia, has assets in the jurisdiction.49 4.12 When a defendant who has been served with originating process outside

Australia challenges the court’s jurisdiction, any application made to invoke the court’s compulsory processes, such as subpoenas and notices to produce, may be set aside unless and until the court has determined that it has jurisdiction.50 A defendant seeking to challenge the court’s jurisdiction should ordinarily not have imposed upon it one of the court’s compulsory processes in aid of establishing jurisdiction.51 It seems that the same principle should apply when the foreign defendant simply does nothing in response to being served with Australian originating process.52 4.13 Because of the courts’ reluctance to exercise their power, even when they have it, it may be that the only effective means of getting evidence or documents from non-parties overseas is by the letter of request or evidence on commission procedures described in Chapter 11.53 4.14 The position is different in relation to an examination summons under the Corporations Act 2001 (Cth) s 596A or s 596B. In Waller v Freehills,54 a Full Court of the Federal Court of Australia held that parliament intended the Corporations Act to operate extraterritorially. It followed that service of an examination summons [page 91] outside Australia was governed by the Corporations Rules r 11.4, and not by O 8 of the Federal Court Rules.55 The court said that principles of restraint such as those stated in Arhill, Stemcor and Federal Treasury Enterprise were not applicable in the present circumstances, where parliament had by statute given the court jurisdiction to summons non-residents and foreigners to attend court in aid of the investigation into the affairs of an Australian company in liquidation. Different public interest policy considerations applied in such a case. The fact that issue of an examination summons to a person outside Australia would involve an invasion of sovereignty carried little weight as a discretionary consideration in determining whether leave should be granted to serve the summons in a foreign country. The fact that the recipient of the summons could simply ignore it was also immaterial. The question before the court related to the scope of the Corporations Act 2001 (Cth), not whether the court’s order could effectively be enforced. 4.15 The position is less clear in relation to examination summonses under the Bankruptcy Act 1966 (Cth) s 81. In Re Skase,56 Pincus J of the Federal Court of

Australia held that an examination summons under s 81 could be issued to a nonparty (the bankrupt’s wife) outside Australia. Pincus J said, obiter, that the provisions of the Bankruptcy Act and Bankruptcy Rules gave the court ‘ample power’ to order service outside Australia or to order substituted service within Australia, which was the order made.57 In Southwell v Maladina,58 Dowsett J of the Federal Court refused to follow Re Skase, declaring himself to be ‘in substantial disagreement’ with Pincus J’s views.59 Dowsett J held that the Bankruptcy Act 1966 (Cth) does not confer jurisdiction to issue a petition for service outside Australia of an examination order under s 81. However, in Battenberg v Restrom,60 a Full Court of the Federal Court of Australia held that a bankruptcy notice could be served on the bankrupt debtor outside of Australia, or by substituted service, for reasons very like those later given by the Full Court in Waller v Freehills. The Battenberg court said that the principles governing service of originating process outside the jurisdiction were of no relevance, the only question being whether the Bankruptcy Act 1966 (Cth) was intended to have extra-territorial effect. The court held that as a matter of construction of the Act, it must have been intended that a debtor be amenable to service of a bankruptcy notice outside Australia.61 Of course, an examination summons under s 81 is a [page 92] different order from a bankruptcy notice, with the result that different principles may govern them. Having refused to order service outside Australia of a s 81 summons in Southwell, Dowsett J joined in the decision in Battenberg to allow service outside Australia of a bankruptcy notice. Either his Honour changed his mind in the interim, or he regards the two situations as distinguishable. Nevertheless, because Battenberg recognised that the Bankruptcy Act 1966 (Cth) was plainly intended to have some extra-territorial effect, it may be that a result similar to that arrived at in Waller v Freehills is now appropriate in relation to s 81 examination summonses.

Anton Piller Orders 4.16 In England an Anton Piller order was made in Cook Industries Inc v Galliher62 authorising the plaintiff and its solicitors to enter the premises of the foreign defendant in Paris and take an inventory of the furniture there. However,

the foreign defendant in that case had been served in England and was therefore within the jurisdiction of the court. An Anton Piller order cannot be made against a foreign third party or even a foreign defendant who has not yet been validly served with process in the substantive proceedings.63

Freezing (Mareva) Orders64 General principles 4.17 Although a relatively new development, the Mareva order65 or freezing order has rapidly ‘become an accepted incident of the jurisdiction of superior courts throughout most of the common law world’.66 The original source of the power to grant such relief is the inherent jurisdiction of a superior court to ‘make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction [page 93] invoked’.67 It has been accepted by the High Court as part of the law of Australia that a freezing order can be granted ‘… if the circumstances are such that there is a danger of [the defendant’s] absconding, or a danger of the assets being removed out of the jurisdiction or disposed of within the jurisdiction, or otherwise dealt with so that there is a danger that the plaintiff, if he gets judgment, will not be able to get it satisfied’.68 It is not essential to establish that the plaintiff will be unlikely to recover anywhere if the assets are removed; the prejudice is in their removal from the forum.69 The order can be made against a defendant whether resident abroad or within the forum, and where the substantive proceedings are taking place in a foreign court (if it is proposed to enforce any prospective foreign judgment in an Australian court).70 The Federal Court and all of the state Supreme Courts now make express provision by uniform rules for the granting of freezing orders, including in support of foreign judgments or prospective foreign judgments which are enforceable in Australia.71 The rules were considered by the New South Wales Court of Appeal in Severstal Export GmbH v Bhusan Steel Ltd.72 The Mareva order has also been given statutory recognition in Victoria (as an injunction) in s 37(3) of the

Supreme Court Act 1986 (Vic). This provision, which is modelled on s 37(3) of the Supreme Court Act 1981 (United Kingdom), states: The Court may grant an interlocutory injunction … restraining a party to a proceeding from removing from Victoria or otherwise dealing with assets located within Victoria, whether or not that party is domiciled, resident or present within Victoria.

4.18 As noted at 4.5, the House of Lords in The Siskina73 and the Privy Council in Mercedes Benz AG v Leiduck74 held that a Mareva injunction (as it was then understood to be) cannot be used by itself to gain jurisdiction over an absent defendant. According to that view, jurisdiction over the defendant or the subject matter of the suit must be established either at common law or by statute independently of the seizure of the assets. The injunction therefore is in aid of the jurisdiction of the court, not a ground for exercising jurisdiction by itself. Consistently with that view, Anderson J of the Supreme Court of Western Australia held in ANZ Grindlays Bank plc v Fattah75 that a Mareva order could not be granted in respect of the local assets of a foreign defendant unless that defendant had first been validly served with originating process in the substantive proceedings. Although, as explained at 4.6, [page 94] the position in Australia seems to be the same as stated in The Siskina in relation to interlocutory injunctions, Mareva or freezing orders in Australia are no longer regarded as injunctions but as orders designed to prevent frustration of judicial process.76 Thus, in Davis v Turning Properties Pty Ltd,77 Celtic Resources Holdings plc v Arduina Holding BV78 and BCBC Singapore Pte Ltd v PT Bayan Resources TBK [No 3],79 it has been held that in certain circumstances Australian superior courts have an inherent jurisdiction to grant Mareva relief in relation to assets in Australia where a foreign judgment has been or is to be obtained, but where no substantive proceedings are on foot in Australia. 4.19 The positions adopted in ANZ Grindlays Bank, Davis, Celtic Resources and BCBC Singapore are not inconsistent with one another but rather are complementary. ANZ Grindlays Bank stands for the proposition that jurisdiction in Australian substantive proceedings against a defendant abroad must be established before a Mareva order can be made in relation to those proceedings. Davis, Celtic Resources and BCBC Singapore stand for the proposition that there need be no substantive proceedings in Australia for the court to have jurisdiction

to make a Mareva order against a person in Australia relating to assets in Australia. 4.20 Since the process is interlocutory in nature it must be in aid of a claim for substantive relief for which a good arguable case must be established. As well, there must be established a danger that the judgment or prospective judgment will be wholly or partly unsatisfied because the judgment debtor or prospective judgment debtor might abscond, or the judgment debtor’s assets might be removed from Australia or a place inside or outside Australia, or disposed of, dealt with or diminished in value.80 A Mareva or freezing order may be issued at any time before judgment and in rare cases even before process has or can be issued. Thus, for example, in Deputy Commissioner of Taxation v Sharp,81 a freezing order was made to support a taxation assessment before payment on it was due. An order can also be made after judgment to prevent removal or disposal in anticipation of execution.82 4.21 A Mareva order cannot be used to create security for satisfaction of an eventual judgment or to circumvent the insolvency laws. It was held by a majority of the High Court of Australia in Jackson v Sterling Industries Ltd83 that an order could not be made requiring the defendant to create a fund of A$3 million by way of security. But it is not necessary that the order be sought to protect an existing proprietary right of the plaintiff in the assets; it can lie to protect an anticipated money judgment or order for costs.84 However it cannot be granted in anticipation [page 95] of a breach of contract: either the breach must have occurred or performance of the obligation must be due.85 4.22 It is possible to obtain ancillary relief in support of a Mareva order. Of particular importance are disclosure affidavits directing the person bound by the Mareva order to file an affidavit disclosing the assets on which the order operates.86 Such affidavits make it more difficult for the person to surreptitiously disobey the order and they identify third parties such as banks who have custody of the relevant assets, so that notice of the order can be given to them.87 The disclosure order may in certain circumstances be directed to a third party.88 Other ancillary orders have included the appointment of a receiver of the assets of a defendant company whether within the jurisdiction or abroad,89 the delivery

up of specific assets to a designated person90 or payment of money into a trust account,91 and the return of assets held overseas to the forum or other place from where they were taken.92

Defendant within the jurisdiction; assets outside Australia 4.23 It is now clear that in an appropriate case an order can be made restraining a defendant who is resident within the jurisdiction of the court from dealing with assets outside the jurisdiction.93 Whether the assets were in the jurisdiction at the time the proceeding was commenced, or indeed have ever been within the jurisdiction, does not affect whether the court has jurisdiction to make a Mareva order or its practice in relation to such orders.94 However, it may be relevant to the exercise of the discretion.95 An order is appropriate where a defendant who is present within the jurisdiction has removed assets from the jurisdiction after the [page 96] commencement of proceedings,96 or where the assets are located in another part of Australia.97 In Yandil Holdings Pty Ltd v Insurance Co of America,98 Rogers J of the Supreme Court of New South Wales said that the court should be ‘discreet and guarded’ and should exercise ‘considerable care’ when making an order in respect of assets outside the jurisdiction, a sentiment echoed by Parker J of the Supreme Court of Western Australia in Commissioner of State Taxation (WA) v Mechold Pty Ltd,99 who emphasised the need for ‘considerable circumspection’ when making such an order. In Commissioner of Taxation (Cth) v Karageorge,100 Hamilton AJ of the Supreme Court of New South Wales said that a Mareva order should only be made in relation to overseas assets in ‘exceptional cases’, but in Talacko v Talacko,101 Kyrou J of the Supreme Court of Victoria refused to take a similar view, saying that the discretion to make such an order was not confined to exceptional cases.

Defendant abroad; assets within Australia 4.24 When the defendant in the substantive proceedings is outside Australia, a

Mareva order can only be made after the defendant has been validly served with originating process.102 Once the defendant has become subject to the court’s jurisdiction by service of originating process, the court plainly has jurisdiction to make a Mareva order in relation to the defendant’s assets within Australia, if the requirements for the making of an order are made out.103 In such circumstances, the only remaining question is whether the Mareva order itself can be served on the defendant outside Australia, as originating process previously was. As a result of amendments made in 2006 and 2007, the Civil Procedure Rules in each of the states and territories and the Federal Court of Australia specifically provide for service outside Australia of ‘freezing orders’ and orders ancillary to freezing orders if any of the assets to which the order relates are within the court’s jurisdiction.104 It should be noted that the fact that a foreign defendant has assets in the jurisdiction that are moveable is not enough to warrant an inferential finding of danger of dissipation.105

Defendant and assets outside Australia 4.25 When the defendant and the assets to be frozen are both outside Australia, the first question that arises is whether the Mareva order, if made, could be served [page 97] on the defendant outside Australia. As noted at 4.24, each Australian jurisdiction has since 2006–07 made specific provision for service of freezing orders outside Australia when the assets to be frozen are within the court’s jurisdiction. Implicit in those provisions is the proposition that service outside Australia is not authorised in relation to assets outside the court’s jurisdiction. That seems quite clearly to be the case in South Australia and Tasmania, where there is no other provision authorising service outside Australia of documents other than originating process.106 However, as noted at 4.9, the Rules in the Federal Court, the Australian Capital Territory and New South Wales authorise service outside Australia of any ‘document other than originating process’; the Rules in Queensland authorise service outside Australia of ‘an application, order, notice or document in a pending proceeding’; and the Rules in Victoria, Western Australia and the Northern Territory authorise service outside Australia of a ‘summons, order or notice’.107 As also noted at 4.9, those general provisions

have been held in some jurisdictions to authorise service outside Australia of subpoenas and examination summonses, and it could therefore be argued that they are also broad enough to authorise service outside Australia of Mareva orders. If that were true, though, the amendments made to the Rules in 2006–07 would have been redundant, as would the carefully worded restriction confining the operation of the new special rules to assets found within the court’s jurisdiction. 4.26 Even if jurisdiction exists (at least in some states and territories) to make such an order, it is uncertain whether it should be exercised, given that there is little reason to believe that the order could be enforced effectively. English courts have made extra-territorial orders against foreign defendants in the past,108 and in Hospital Products Ltd v Ballabil Holdings Pty Ltd,109 Rogers J of the Supreme Court of New South Wales made a Mareva order (then called a Mareva injunction) against a defendant who resided in the United States in relation to assets in the United States. That defendant did not appeal when his co-defendant did, so the issue was left unresolved by the New South Wales Court of Appeal in Ballabil Holdings Pty Ltd v Hospital Products Ltd.110 Rogers J acknowledged that such an order might be futile and that it was a sound principle that a court should not make an order that will be futile.111 Nevertheless, Rogers J made the order on the basis of the belief that the defendant would obey the order.112 With respect, that seems to be rather a flimsy basis upon which to make an order with such far-reaching effect. In Derby v Weldon (Nos 3 & 4),113 Lord Donaldson of Lymington MR commented that a sufficient sanction to enforce disobedience of an extra-territorial Mareva order by an overseas defendant would be to bar that defendant’s right to defend as a sanction for contempt [page 98] of court, an option that seems at least possible under Australian court rules.114 In the absence of some such effective sanction, the court’s order would be, as Allsop J said in a different context in Stemcor (A/asia) Pty Ltd v Oceanwave Line SA,115 ‘an empty threat, or the equivalent of a mere request couched in imperative terms’, something that it is inappropriate for a court to make.

Third parties

4.27 Third parties, particularly banks, are often given notice of a Mareva order, so that they can deal with the assets of the person against whom the order is made in a manner consistent with the order. More rarely, the Mareva order may be directed against the third party itself as respondent to the order, notwithstanding the fact that it is not party to the underlying proceedings. Not surprisingly, the court is generally more reluctant to make an order against a third party than against a defendant subject to the court’s jurisdiction. In Cardile v LED Builders Pty Ltd,116 Gaudron, McHugh, Gummow and Callinan JJ described the relevant principles as follows:117 What then is the principle to guide the courts in determining whether to grant Mareva relief in a case such as the present where the activities of third parties are the object sought to be restrained? In our opinion such an order may, and we emphasise the word ‘may’, be appropriate, assuming the existence of other relevant criteria and discretionary factors, in circumstances in which: (i) the third party holds, is using, or has exercised or is exercising a power of disposition over, or is otherwise in possession of, assets, including ‘claims and expectancies’, of the judgment debtor or potential judgment debtor; or (ii) some process, ultimately enforceable by the courts, is or may be available to the judgment creditor as a consequence of a judgment against that actual or potential judgment debtor, pursuant to which, whether by appointment of a liquidator, trustee in bankruptcy, receiver or otherwise, the third party may be obliged to disgorge property or otherwise contribute to the funds or property of the judgment debtor to help satisfy the judgment against the judgment debtor.

4.28 If the third party the subject of the Mareva order is in another country, it may find itself in the invidious position of obeying the orders of the Australian court and disobeying those of the country in which it is resident; or obeying the law of that county and disobeying the orders of the Australian court. This is particularly likely in relation to foreign banks, who may be required by their local law or the proper law of their contract with their customers to pay out on demand from the customers’ account. If that is a possibility, the court may add a qualification to the order stating that the respondent to the order should exercise all reasonable endeavours to notify the plaintiff’s solicitors (in advance, if possible) of any occasion whereby it thinks that either the local law or the proper law of the contract will require it to pay out on demand made by a party to the proceedings against whom a Mareva order has [page 99] also been made.118 A similar principle applies in relation to third parties overseas who are merely given notice of a Mareva order but who are not bound to observe it under local law.119

Foreign Attachment 4.29 The system of foreign attachment whereby a creditor could proceed by way of an action quasi in rem against the local property of an absent debtor to satisfy any claim arising out of contract to the extent of that property was known to the custom of London since time immemorial, but fell into disuse in England and Australia during the course of the nineteenth century.120 It was introduced by statute in New South Wales, which then included all of the eastern seaboard of mainland Australia, in the Absent Debtors Act 1840. Although repealed in New South Wales itself, foreign attachment still exists in Queensland, its existence being reconfirmed by s 72 of the Supreme Court Act 1995 (Qld). In Western Australia and the Northern Territory, orders can be made under ‘absconding debtors’ legislation restraining the removal of property from the jurisdiction.121 _________________________ 1.

Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55.

2.

Mareva Compania Naviera SA v International Bulk Carriers SA [1980] 2 All ER 213. The first case in which such an order was made was not Mareva but Nippon Yusen Kaisha v Karageorgis [1975] 3 All ER 282.

3.

Temporary stays of this kind are considered at 8.48 below.

4.

ANZ Grindlays Bank plc v Hussein Salah Hussein Abdul Fattah (1991) 4 WAR 296.

5.

As to service of process within Australia, see generally Chapter 3 above.

6.

FCR r 10.44; CPR (ACT) r 6504; UCPR 2005 (NSW) r 11.5; SCR (NT) r 7.06(c); UCPR 1999 (Qld) r 127(b); SC(GCP)R 2005 (Vic) r 7.06(c); SCR (WA) O 10 r 7. The Civil Procedure Rules in South Australia and Tasmania provide for service outside Australia only of originating process and freezing orders: SCCR (SA) 2006 rr 41(1), 247(7); SCR 2000 (Tas) rr 147A, 937G. The High Court Rules 2004 provide only for service outside Australia of originating process: r 9.07.01.

7.

(2007) 162 FCR 375. Compare Sinopharm Jiangsu Co Pty Ltd v Bank of China [2007] NSWSC 484 at [26] per McDougall J (court had power to order preliminary discovery of documents in China when defendant carried on business in and could be served in New South Wales).

8.

Carnegie Corp v Pursuit Dynamics Plc (2007) 162 FCR 375 at 388, at [53] per French J. This aspect of the decision was followed by Besanko J in Gearheart United Pty Ltd v Omni Oil Technologies (Asia) Sdn Bhd (2010) 267 ALR 630 at [14].

9.

See, now, FCR 10.42 which defines the categories of case when service outside Australia is permitted. See generally Chapter 3 above.

10. Carnegie Corp v Pursuit Dynamics Plc (2007) 162 FCR 375 at 389, at [57] per French J. 11. (2010) 267 ALR 630 12. (2009) 177 FCR 507. 13. Siskina (Owners of Cargo Lately Laden on Board) v Distos Cia Naviera SA [1979] AC 210, especially at 256 per Lord Diplock.

14. [1993] AC 334 at 343 per Lord Browne-Wilkinson (with whom Lords Keith of Kinkel and Goff of Chieveley agreed). 15. [1996] 1 AC 284. 16. (2001) 208 CLR 199; 185 ALR 1. 17. See note 16 above at CLR 240; ALR 24 at [88]. 18. (1999) 198 CLR 380; 162 ALR 294. 19. Deputy Commissioner of Taxation v Ahern [1986] 2 Qd R 342; Van Shun Dyeing Factory Ltd v Cheung (SC(NSW), 16 July 1991, Bryson J, BC9101788, unreported). 20. (2005) 222 ALR 676. 21. (2006) 32 WAR 276. 22. [2013] WASC 239. 23. See also Severstal GmbH v Bhusan Steel Ltd [2013] NSWCA 102. The ability to make such orders is now explicitly provided for by Rules of Court of the Federal Court of Australia and the State Supreme Courts: see 4.17 below. 24. Service and Execution of Process Act 1992 (Cth) ss 30, 31, 32(1). 25. Evidence and Procedure (New Zealand) Act 1994 (Cth) s 7. 26. See note 25 above at s 7(a). 27. See note 25 above at s 7(b), which provides that Pt 2 applies to a subpoena that is issued in a proceeding in a state or territory court specified in the regulations. The Evidence and Procedure (New Zealand) Regulations Sch 1, specifies courts in all jurisdictions except Victoria. 28. See note 25 above at s 8(1). 29. SCCR (SA) 2006 rr 41(1), 247(7); SCR 2000 (Tas) rr 147A; 937G. The High Court Rules 2004 only provide for service outside Australia of originating process: r 9.07.01. 30. [1985] 2 Qd R 552. 31. SCR (NT) r 7.06(c); SC(GCP)R 2005 (Vic) r 7.06(c); SCR (WA) O 10 r 7. 32. [2002] VSC 64. 33. See note 32 above at [12]. 34. [2012] VSC 126. 35. FCR r 10.44; CPR (ACT) r 6504; UCPR 2005 (NSW) r 11.5. 36. In Sweeney v Howard [2007] NSWSC 262 at [11], Windeyer J held that UCPR 2005 (NSW) r 11.5 gives authority for a subpoena to be served outside Australia. In Waller v Freehills (2009) 177 FCR 507 at 524–7; 258 ALR 67 at 86–7, Finn, Dowsett and Siopis JJ of the Federal Court of Australia held that an examination summons under the Corporations Act 2001 (Cth) could be served outside Australia as a ‘document’ under FCR r 8.04. 37. [2012] NSWSC 986. 38. UCPR 1999 (Qld) r 127(b). 39. [2012] WASCA 136. 40. [2010] FCA 298. 41. (1990) 23 NSWLR 545. 42. Now UCPR 2005 (NSW) r 11.5.

43. [2004] FCA 391. 44. See note 43 above at [11]–[12]. 45. (2007) 157 FCR 558. 46. [2002] VSC 64. 47. See also Mackinnon v Donaldson, Lufkin & Jenrette Securities Corp [1986] Ch 482. Compare Sinopharm Jiangsu Co Pty Ltd v Bank of China [2007] NSWSC 484 at [26] per McDougall J (court had power to order preliminary discovery of documents in China when defendant carried on business in and could be served in New South Wales). 48. [2012] VSC 126. 49. Caswell v Sony/ATV Music Publishing (Australia) Pty Ltd [2012] NSWSC 986. 50. News Corp Ltd v Lenfest Communications Inc (1996) 40 NSWLR 250; Armacel Pty Ltd v Smurfit Stone Container Corp (2007) 164 FCR 123 but cf Barach v University of New South Wales (No 2) [2011] NSWSC 185. 51. News Corp Ltd v Lenfest Communications Inc (1996) 40 NSWLR 250 at 261 per Giles J; Armacel Pty Ltd v Smurfit Stone Container Corp (2007) 164 FCR 123 at 124, at [8] per Jacobson J; Suzlon Energy Ltd v Bangad [2011] FCA 1152 per Rares J. 52. News Corp Ltd v Lenfest Communications Inc (1996) 40 NSWLR 250 at 261 per Giles J (obiter). 53. See Sweeney v Howard [2007] NSWSC 262 at [14] per Windeyer J. 54. (2009) 177 FCR 507; 258 ALR 67. See also Application of Whitton [2007] NSWSC 606; Re McGrath as Liquidators of HIH Insurance Ltd [2008] NSWSC 780, both giving leave to serve an examination summons outside Australia. 55. Finn, Dowsett and Siopis JJ held, in the alternative, that if service outside Australia was not authorised under the Corporations Rules r 11.4, it was authorised under FCR r 8.04: see Waller v Freehills (2009) 258 ALR 67 at 86–7; 73 ACSR 101 at 120–1, at [91]–[94]. This part of the decision impliedly disapproves of Re Deposit and Investment Co Ltd (Receiver appointed) (1991) 30 FCR 463, also reported as Re Sherlock (1991) 102 ALR 156. 56. (1991) 32 FCR 212; 104 ALR 229. 57. See note 56 above at FCR 216; ALR 233, citing Re Mendonca; ex parte Commissioner of Taxation (1969) 15 FLR 256 at 261 per Gibbs J as authority for ‘ample power’. 58. (2002) 194 ALR 51. 59. See note 58 above at 52. 60. (2006) 149 FCR 128. 61. See note 60 above at 133 per Heerey, Dowsett and Conti JJ. This decision was followed in Commonwealth Bank of Australia, in the matter of Oswal [2013] FCA 391 in which it was held that it was not necessary, at the stage of an application for service of a bankruptcy notice, to consider whether there was a prima facie or good arguable case as to the jurisdictional foundation for the court making a sequestration order or the failure to satisfy the bankruptcy notice. 62. [1979] Ch 439. 63. Altertext Inc v Advanced Data Communications Ltd [1985] 1 All ER 395; ANZ Grindlays Bank plc v Fattah (1991) 4 WAR 296. 64. See generally Biscoe, ‘Transnational Freezing Orders’ in Freezing and Search Orders: Mareva and Anton Piller Orders, 2nd ed, LexisNexis Butterworths, Sydney, 2008. 65. Until Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; 162 ALR 294, Mareva orders were usually

called Mareva injunctions. In Cardile at CLR 401; ALR 308 at [42], Gaudron, McHugh, Gummow and Callinan JJ said that to avoid confusion about the doctrinal basis of the order, the expression ‘Mareva order’ should be used instead of ‘Mareva injunction’. Kirby J preferred ‘asset preservation order’: see above at CLR 412; ALR 317–18 at [79]. 66. Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 622 per Deane J. The United States is a significant exception. In Grupo Mexicano de Desarrollo SA v Alliance Bond Fund Inc, 527 US 308 (1999), the Supreme Court of the United States held that federal courts in the United States have no power to grant a preliminary injunction restraining transfer of assets in which no lien or equitable interest is claimed. 67. Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at 33; 153 ALR 643 at 658–9 per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 399–400; 162 ALR 294 at 307–8, at [41] per Gaudron, McHugh, Gummow and Callinan JJ. 68. Rahman (Prince Abdul) v Abu-Taha [1980] 3 All ER 409 at 412, cited with approval by Deane J in Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 623. 69. West Clothing Co Pty Ltd v Sail America Foundation for International Understanding [1988] WAR 119. 70. Severstal Export GmbH v Bhusan Steel Ltd [2013] NSWCA 102; BCBC Singapore Pte Ltd v PT Bayan Resources TBK [No 3] [2013] WASC 239. 71. FCR Div 7.4; CPR (ACT) Subdiv 2.9.4.2; UCPR 2005 (NSW) r 25.14; SCR (NT) r 37A; UCPR 1999 (Qld) Ch 8, Div 2; SCCR 2006 (SA) r 247; SCR 2000 (Tas) Pt 36, Div 1A; SC(GCP)R 2005 (Vic) O 37A; SCR (WA) O 52A. 72. [2013] NSWCA 102. 73. [1979] AC 210. 74. [1996] 1 AC 284. 75. (1991) 4 WAR 296. 76. Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; 162 ALR 294. 77. (2005) 222 ALR 676. 78. (2006) 32 WAR 276. 79. [2013] WASC 239. 80. These criteria are contained in the uniform rules referred to in note 71 above. 81. (1988) 82 ACTR 1. 82. Yamabuta v Tay (No 2) (1995) 16 WAR 262. See also Babanaft International Co SA v Bassatne [1990] Ch 13. 83. (1987) 162 CLR 612; 71 ALR 457. 84. Yandil Holdings Pty Ltd v Insurance Co of North America (1987) 7 NSWLR 571. 85. Zucker v Tyndale Holdings Pty Ltd [1993] 1 All ER 124. 86. Kuan Han Pty Ltd v Oceanview Holdings Pty Ltd [2003] FCA 1063 at [45]ff per Conti J. See also Yandil Holdings Pty Ltd v Insurance Co of North America (1987) 7 NSWLR 571. 87. Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 228 ALR 174 at 181–2 per Moore J, referring to Biscoe, Mareva and Anton Piller Orders: Freezing and Search Orders, LexisNexis Butterworths, Sydney, 2005, at para 3.3.

88. Arab Monetary Fund v Hashim (No 5) [1992] 2 All ER 910. 89. Derby & Co Ltd v Weldon (Nos 3 and 4) [1990] Ch 65; but see the reservations expressed by Street CJ in Ballabil Holdings Pty Ltd v Hospital Products Ltd (1985) 1 NSWLR 155 at 160, 161 as to the extraterritorial limits of the authority of the receiver. 90. CBS United Kingdom Ltd v Lambert [1983] Ch 37. 91. Millennium Federation Pty Ltd v Bigjig Pty Ltd [2000] 1 Qd R 275. 92. Derby & Co Ltd v Weldon (No 6) [1990] 1 WLR 1139; Betta Cones Co Pty Ltd v Microbyte Investments Pty Ltd [1993] ACL Rep 185 Vic 10. 93. The decision to the contrary in Brereton v Milstein [1988] VR 508 is no longer good law: see National Australia Bank v Dessau [1988] VR 521; Planet International Ltd (in liq) v Garcia [1989] 2 Qd R 427; Southern Equities Corp Ltd (in liq) v Bond (No 3) [2000] SASC 318; Talacko v Talacko [2009] VSC 349. See also Derby & Co Ltd v Weldon [1990] Ch 48. 94. National Australia Bank v Dessau [1988] VR 521 at 527 per Brooking J; Planet International Ltd (in liq) v Garcia [1989] 2 Qd R 427; Southern Equities Corp Ltd (in liq) v Bond (No 3) [2000] SASC 318; Talacko v Talacko [2009] VSC 349. 95. Ballabil Holdings Pty Ltd v Hospital Products Ltd (1985) 1 NSWLR 155 at 164–5 per Glass JA; National Australia Bank v Dessau [1988] VR 521 at 527 per Brooking J; Talacko v Talacko [2009] VSC 349 at [35] per Kyrou J. 96. Ballabil Holdings Pty Ltd v Hospital Products Ltd (1985) 1 NSWLR 155; Betta Cones Co Pty Ltd v Microbyte Investments Pty Ltd [1993] ACL Rep 185 Vic 10. 97. Coombs & Barei Constructions Pty Ltd v Dynasty Pty Ltd (1986) 42 SASR 413; In re Clunies-Ross; Ex parte Totterdell (1987) 72 ALR 241; National Australia Bank Ltd v Dessau [1988] VR 521. 98. (1987) 7 NSWLR 571 at 574–5 per Rogers J. 99. (1995) 30 ATR 69 at 73 per Parker J. 100. (1996) 34 ATR 196 at 202 per Hamilton AJ. 101. [2009] VSC 349 at [35] per Kyrou J. 102. ANZ Grindlays Bank plc v Fattah (1991) 4 WAR 296. See 4.19–4.20 above. 103. See, for example, Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514; 155 ALR 478 (order not made because insufficient likelihood of removal of assets by reputable corporation) but cf. Severstal Export GmbH v Bhusan Steel Ltd [2013] NSWCA 102. 104. FCR r 7.37; CPR (ACT) r 744; UCPR 2005 (NSW) r 25.16; SCR (NT) r 37A.07; UCPR 1999 (Qld) r 260F; SCCR 2006 (SA) r 247(7); SCR 2000 (Tas) r 937G; SC(GCP)R 2005 (Vic) r 37A.07; SCR (WA) O 52A r 7. 105. Deputy Commissioner of Taxation v Hua Wang Bank Berhad (2010) 80 ATR 449 at [12] 106. See note 29 above. 107. See notes 31, 35, 38 above. 108. Derby & Co Ltd v Weldon (Nos 3 and 4) [1990] Ch 65 (worldwide injunctions against a Luxembourg company and a Panamanian company even though neither owned any assets in England). 109. [1984] 2 NSWLR 662 at 670. 110. (1985) 1 NSWLR 155. 111. [1984] 2 NSWLR 662 at 670 per Rogers J. 112. See note 112 above.

113. [1990] Ch 65 at 81. 114. Re Pattison (Trustee); Bell v Bell [2007] FCA 137 at [51] per Gray J. 115. [2004] FCA 391 at [11]–[12] per Allsop J, quoted above at 4.10. 116. (1999) 198 CLR 380; 162 ALR 294. 117. See note 117 above at CLR 405–6; ALR 312 at [57]. 118. Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Ltd [2005] FCA 399. 119. Derby & Co Ltd v Weldon (Nos 3 and 4) [1990] Ch 65 at 84. See Collins, ‘The Territorial Reach of Mareva Injunctions’ (1989) 105 LQR 262; Rogers, ‘The Extra-Territorial Reach of the Mareva Injunction’ [1991] LMCLQ 231. 120. A similar system for obtaining jurisdiction by attachment of the property of a defendant ‘not found within the district’ was until recently in lively use in maritime cases in the United States, largely because the relevant provision (Supplementary Admiralty r B to the Federal Rules of Civil Procedure) has been held to apply to electronic funds transfers of United States dollars passing momentarily through banks in New York City: see Winter Storm Shipping Ltd v TPI, 310 F 3d 263 (2d Cir 2002), overruled in Shipping Corp of India v Jaldhi Overseas Pte, 585 F 3d 58 (2d Cir 2009). 121. Absconding Debtors Act 1978 (NT) Pt IV; Restraint of Debtors Act 1984 (WA) s 17 (1).

[page 100]

Chapter 5

Federal and Admiralty Jurisdiction 5.1 In most cases where a court exercises federal jurisdiction it does so because a question of substantive federal law is involved, such as a matter arising under the Constitution or involving the interpretation of a federal statute. In addition, federal jurisdiction may exist in some situations where there is no question of substantive federal law involved. An obvious example is the diversity jurisdiction where federal jurisdiction is invoked by the mere fact that the parties are residents of different states. Other examples are suits affecting consuls or other representatives of foreign countries,1 suits to which the Commonwealth or one of its instrumentalities is a party,2 suits between states (including their instrumentalities), or between a state (including its instrumentalities) and a resident of another state,3 and matters arising in the Admiralty jurisdiction of the High Court and Federal Court.4 In this chapter we will be concerned with diversity jurisdiction, the jurisdiction of the Federal Court, Admiralty jurisdiction and with choice of law in federal jurisdiction.

The Diversity Jurisdiction of the High Court 5.2 Section 75(iv) of the Constitution invests the High Court with original jurisdiction in all matters ‘between States, or between residents of different States, or between a State and a resident of another State’. This is part of the jurisdiction with which the High Court is invested directly by the Constitution itself. Consequently, it is a jurisdiction of which the High Court cannot be deprived by any enactment of the Commonwealth Parliament. Before the High Court will assume jurisdiction, it must be satisfied that there is indeed a matter between parties of the above description. The jurisdiction cannot be conferred upon the court by consent.5 The onus rests upon the

plaintiff6 and [page 101] admissions by the defendant in the pleadings or by counsel at the bar table will not suffice,7 but it is not necessary to prove a particular place of residence within a state.8 A ‘matter’ must involve ‘some immediate right, duty or liability to be established by the determination of the Court’, which means that the court cannot issue advisory opinions.9 Nevertheless, ‘the word “matters” was … the widest term to connote controversies which might come before a Court of Justice’.10 The word ‘resident’ has received a much stricter interpretation. In Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe,11 the High Court held that the word ‘resident’ refers only to a natural person, and it refused in Cox v Journeaux12 and again in Crouch v Commr for Railways (Qld)13 to reconsider the correctness of that decision. Hence, an action by or against a corporation, including a corporation sole consisting of a natural person,14 cannot qualify. Nor is it possible to join a corporate third party to an action between individual residents of different states.15 The only corporate entity that can fall within the diversity jurisdiction is a state. In British American Tobacco Australia Ltd v Western Australia,16 Kirby J said of Howe’s case: [T]he decision is open to the strongest doubt and criticism. In my view it is wrong. One day this court will say so.

That day has not yet arrived.17 In determining whether a state is a party, the court looks at the subject matter of the action rather than the name of the party. Thus, in Crouch v Commr for Railways (Qld)18 the fact that the action concerned an injury suffered by an employee of the Queensland Railways, an activity traditionally carried on by the states in Australia, was held to indicate that the matter was one between the plaintiff employee and the State of Queensland.19 Similarly, in Sweedman v Transport Accident Commission20 it was accepted that the Victorian Transport Accident Commission had characteristics that brought it within the constitutional description of the State of Victoria for the purposes of s 75(iv). In State

Authorities Superannuation Board v Commissioner of [page 102] State Taxation for the State of Western Australia,21 McHugh and Gummow JJ said that the question whether a government agency or instrumentality is a ‘state’ within the meaning of s 75(iv) is not answered by showing that it is the Crown ‘in right of’ the state in question, nor by asking whether it is entitled to ‘the privileges and immunities of the Crown’ or to ‘the shield of the Crown’,22 but rather by considering whether it conducts any of the activities of government.23 In New South Wales v Public Transport Ticketing Corporation,24 the New South Wales Court of Appeal held that the Public Transport Ticketing Corporation ‘may well be’ the State of New South Wales, even though it had a separate personality as a corporation, distinct from the polity of the State of New South Wales. The High Court in Howe’s case sought to define the degree of connection required to make a person a ‘resident’ of a state. There appears to have been general agreement with the proposition put forward by Isaacs J, in his dissenting judgment, that a natural person is a resident of a state ‘if by reason of his residential connection with the State he can properly be said to be identified with it as contrasted with all other States’.25 This implies that a person can only be resident in one state at a time for the purposes of diversity jurisdiction. ‘Residence’ for these purposes denotes the place where one has one’s habitual residence for the time being.26 It has been held that soldiers under superior orders are resident in the state where for the time being they are stationed, though they are liable to be moved to another state.27 Provided the requisite degree of identification exists, the length of residence does not matter.28 Nor does it matter that at the time when the cause of action arose both parties were residents of the same state. The relevant time is the institution of proceedings.29 It is also irrelevant to consider where the cause of action arose. It might have been in a state, in a territory, or outside Australia altogether.30 But there must be what the American cases on diversity jurisdiction call ‘complete diversity’:31 there is no ‘matter between residents of different states’ if there is a party from the same state on each side of the record in the action. Thus, if a plaintiff residing in Victoria sues a defendant residing in the same state, they cannot make it a ‘matter

[page 103] between residents of different states’ by joining a resident of New South Wales as co-defendant.32 5.3 The diversity jurisdiction may bring before the High Court trivial matters hardly befitting Australia’s highest tribunal. Consequently, provision has been made in s 44(1) of the Judiciary Act 1903 (Cth) as follows: Any matter other than a matter to which subs (2) applies, that is at any time pending in the High Court, whether originally commenced in the High Court or not, or any part of such a matter, may, upon the application of a party or of the High Court’s own motion, be remitted by the High Court to any federal court, court of a State or court of a territory that has jurisdiction with respect to the subject matter and the parties, and, subject to any directions of the High Court, further proceedings in the matter or in that part of the matter, as the case may be, shall be as directed by the court to which it is remitted.

The High Court held in Johnstone v Commonwealth33 that under s 44(1) it has a wide power to remit to any state and territory courts actions instituted in its original jurisdiction, whether or not the court to which the action is remitted is in the state or territory where the cause of action arose. In Weber v Aidone34 the High Court held that it could, under s 44(1), remit to the Supreme Court of Victoria a diversity action in tort between a resident of South Australia and a resident of Victoria, even though that court would not have had jurisdiction had the action been instituted there. The requirement in s 44(1) that the court to which remission is made should have jurisdiction in respect of the subject matter and the parties has been interpreted broadly as meaning that the cause of action is of a kind which that court can entertain and the party is a person over whom that court would have jurisdiction if that party had been served within the jurisdiction. The High Court does not have to enquire whether the state court would have had or could have exercised jurisdiction over the actual parties involved. The state, territory or Federal Court has jurisdiction conferred upon it by reason of the High Court’s remitter of the case to it, but the jurisdiction is conferred on the court by Parliament, not the High Court.35 However, the High Court cannot remit actions to the Federal Court under s 44(1) if the claims are governed by the common law or the statute law of a state or territory, as the Federal Court does not have subject matter jurisdiction in relation to such proceedings.36 Section 44(2) expressly provides that the High Court may remit matters to the Federal Court if they fall within the High Court’s exclusive jurisdiction under s 38(a)–(d) of the Constitution, but those matters do not include those falling within the s 75(iv)

diversity jurisdiction.37 The requirement that the court to which remission is made should have jurisdiction is the reason why the power to remit cases falling within the s 75(iv) [page 104] diversity jurisdiction is broader than the power to remit cases falling within the High Court’s s 75(v) jurisdiction to make orders of mandamus, prohibition or injunctions against Commonwealth officers. In Re Jarman; Ex parte Cook (No 1),38 the High Court held, by a bare majority of four to three, that it could not under s 44(1) remit to the Industrial Relations Court an application for a writ of mandamus directed to a judge of the same court. The Industrial Relations Court did not have jurisdiction to grant writs of mandamus to its own judges, so the High Court could not remit the matter to the Industrial Relations Court under s 44(1). In contrast, in Veta Ltd v Evans,39 McHugh J remitted a s 75(iv) diversity action to the Industrial Relations Commission of New South Wales (now the Industrial Court) as a ‘court of a state’ for the purposes of s 44(1). The court to which the case is remitted exercises federal jurisdiction after remitter.40 Federal jurisdiction is conferred on that court by Parliament, not by the High Court: s 44 confers federal jurisdiction on state and territory courts in cases where the High Court remits the proceedings before it.41 The state or territory court to which the case is remitted ‘stands in the jurisdictional shoes’ of the High Court.42 That does not mean, however, that the court’s powers have an Australia-wide geographical reach that the court would not otherwise enjoy,43 nor that the Federal Court, in dealing with a remitted matter, is confined to the head of jurisdiction that justified the remitter.44 Section 79 of the Judiciary Act 1903 (Cth) provides that courts exercising federal jurisdiction shall apply state or territory law, which define the powers of the court.45 Thus, in Scott v Northern Territory,46 the Northern Territory Court of Appeal held that it did not have power to order exhumation of a body buried in Queensland simply by virtue of the fact that it was exercising federal jurisdiction on remitter from the High Court.47 Once a High Court matter has been remitted under s 44, it becomes a proceeding in the court to which it has been remitted, to be determined, in all respects, in accordance with that court’s procedures. For example, in Dinnison v Commonwealth,48 the Federal Court held that it had the power under the cross-

vesting legislation to transfer to a state court a matter that had been remitted to it by the High Court, even though the cross-vesting legislation did not apply to the High Court. After remitter, the matter did not continue to be a High Court matter being heard in the [page 105] Federal Court, so as to insulate it from the operation of the cross-vesting legislation; it became a Federal Court matter.49 The first principle to be applied in selecting the court to which the matter should be remitted, is that the High Court should not, by making a remitter, alter the rights of the parties.50 In the case of an action based on a tort, this has led to preference being given to a court of the state or territory in which the tort was committed.51 The court considers not merely a difference in substantive rights but also the impact of procedural differences on such rights. In Pozniak v Smith52 the plaintiff, a resident of New South Wales, commenced proceedings in the original jurisdiction of the High Court against the defendant, a resident of Queensland, in respect of injuries received in a motor accident in Queensland. The issue was whether the court should remit the action to the Supreme Court of Queensland or the Supreme Court of New South Wales. The latter was desired by the plaintiff, as the court of that state would apply a lower discount rate in the assessment of damages than the courts of Queensland. The majority of the court took the view that the matter should be referred to the Supreme Court of Queensland because ‘the only safe course, in a case where the relevant law in the competing jurisdictions is materially different in its effect on the rights of the parties, is to remit to the State whose law has given rise to the cause of action’.53 If the tort occurred in Australian territorial waters beyond the boundaries of a state or territory, the Federal Court may be the appropriate forum.54 If there is no conflict between the potentially applicable laws, the court will look for the most appropriate forum. Matters which have been considered important in this context include the place where the plaintiff was hospitalised and from where the medical witnesses would have to come,55 which court will be able to hear the matter earlier and the availability of legal aid,56 the place of residence of the defendant,57 and the place of incorporation of the defendant.58 Where the balance of convenience does not favour any of the possible forums,

the court will remit the matter to the jurisdiction having the closest connection with the dispute.59 The High Court held in MZXOT v Minister for Immigration60 that it has no inherent power to remit proceedings in its original jurisdiction. As a result, the scope of the [page 106] court’s power of remitter is confined by s 44, and other federal legislation affecting the operation of s 44.61

The Jurisdiction of the Federal Court 5.4 The Federal Court of Australia was created by the Federal Court of Australia Act 1976 (Cth). It was once a court of limited jurisdiction, having jurisdiction only over specific matters conferred upon it by Acts of the Commonwealth Parliament. In 1997, its jurisdiction was expanded considerably by the Judiciary Act 1903 (Cth) s 39B(1A)(c) to include any matter arising under the Constitution, or involving its interpretation, or arising under any laws made by the Commonwealth Parliament (other than criminal law matters). Thus, the Federal Court is now a court of general civil jurisdiction in relation to questions of substantive federal law. If a dispute involves consideration of the operation of the Constitution62 or a Commonwealth statute, whether in the application, statement of claim,63 defence,64 cross-claim, defence to cross-claim or otherwise, the Federal Court has jurisdiction over the whole dispute or controversy.65 The use of the words ‘arising under’ in s 39B(1A)(c) means that it is not necessary for the plaintiff’s cause of action to be created by a law of the Commonwealth. In R v Commonwealth Court of Conciliation and Arbitration; ex parte Barrett,66 Latham CJ made the following observation about ‘arising under’ jurisdiction, which has often been cited with approval: [A] matter may properly be said to arise under a federal law if the right or duty in question in the matter owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law.

[page 107] Thus, for example, there is a matter arising under a federal law if the defendant asserts a defence based upon a law of the Commonwealth.67 5.5 Once federal jurisdiction is attracted by reason of the existence of a matter arising under federal law, that jurisdiction attaches to the whole matter, not simply its federal element.68 There is no room for the notion of double or concurrent streams of federal and state jurisdiction.69 Thus, if a plaintiff asserts a claim based on state law and the defendant asserts a defence based on federal law, the matter is transformed completely and irrevocably into one calling for the exercise of federal jurisdiction.70 The same is true of the filing of a cross-claim based on Commonwealth legislation.71

Federal Jurisdiction in State Courts 5.6 State courts may be invested with federal jurisdiction pursuant to s 77(iii) of the Constitution in matters in which the High Court has original jurisdiction by virtue of s 75 of the Constitution (as is the case, for example, with the High Court’s diversity jurisdiction),72 or when original federal jurisdiction is expressly conferred on them by Commonwealth statute, pursuant to ss 75 and 76 of the Constitution (as is the case, for example, with admiralty jurisdiction),73 or by remitter of matters in the High Court’s original jurisdiction.74 There is some doubt about whether a state court exercising federal jurisdiction should apply relevant state statutes of their own force or because they have been ‘picked up’ into federal law by the Judiciary Act 1903 (Cth) s 79.75 In Momcilovic v R,76 French CJ tentatively expressed the view, relying on dicta of Windeyer J in Fenton v Mulligan,77 that the former is the case, and that the existence of federal jurisdiction depends solely upon the grant of an authority to adjudicate, rather than upon the law to be applied in the exercise of that [page 108] authority. In contrast, in CSL Australia Pty Ltd v Formosa78 and Victorian Workcover Authority v J Sarunic & Sons Pty Ltd,79 the New South Wales Court of Appeal and the Supreme Court of Victoria (respectively) held that state law

applies in the federal jurisdiction exercised by state courts because it has been ‘picked up’ by s 79.80 At first sight, it may not seem to matter by which route state law is found to apply in a state court exercising federal jurisdiction. However, a state statute is not applicable in the federal jurisdiction if a law of the Commonwealth ‘otherwise provide[s]’,81 and state common law is applicable only to the extent that it is ‘not inconsistent with the Constitution and the laws of the Commonwealth’.82 In CSL Australia Pty Ltd v Formosa,83 a case about an injury to a loading foreman on a ship at berth, the New South Wales Court of Appeal said there was a ‘real issue’ about whether state statutes (Civil Liability Act 2002 (NSW) ss 5F and 5H, and Workers Compensation Act 1987 (NSW) s 151Z) would be ‘picked up’ by s 79 because of their possible inconsistency with federal safety statutes, such as the Occupational Health and Safety (Maritime Industry) Act 1993 (Cth). For the same reason, it was doubtful whether state laws about occupier’s liability were consistent with the principles of the Australian common law, which would apply in the federal jurisdiction. Similarly, in Victorian Workcover Authority v J Sarunic & Sons Pty Ltd,84 the parties accepted that the Accident Compensation Act 1985 (Vic) governed a claim by a deckhand who slipped on the deck of a commercial fishing vessel while it was at sea in Australian territorial waters. Federal safety provisions in the Navigation Act 1912 (Cth), the Marine Orders made under the Navigation Act 1912 (Cth) s 425(1AA) and the Occupational Health and Safety (Maritime Industry) Act 1993 (Cth) did not apply because the fishing vessel was not on an interstate or overseas voyage. If the incident had occurred on a vessel to which the Commonwealth legislation applied (ie, a vessel on an interstate or overseas voyage), the result may have been that the Victorian legislation would not have been ‘picked up’ by the Judiciary Act 1903 (Cth) s 79 because the Commonwealth legislation ‘otherwise provided’. That would not be the result if the view expressed by French CJ in Momcilovic is correct, and if state legislation is to be applied of its own force by state courts exercising federal jurisdiction.

Jurisdiction In Rem in Admiralty 5.7 In the Admiralty jurisdiction, it has traditionally been possible to commence proceedings against a ship or other property. The process is initiated by proceeding against the ship or other property, which may then be arrested whilst within the

[page 109] territorial jurisdiction of the court. Traditionally the action in rem could only lie in respect of an interest in the ship or cargo arising by reason of a maritime lien, which adheres to the ship regardless of changes in ownership: for example, a claim for salvage,85 a claim for damage done by the ship,86 or a claim for unpaid crew wages.87 5.8 Jurisdiction in Admiralty is now governed by the Admiralty Act 1988 (Cth), which expands the scope of the in rem jurisdiction beyond the traditional actions based upon maritime liens. Section 10 of the Act confers upon the Federal Court, the Supreme Courts of the territories,88 and the Supreme Courts of the states federal jurisdiction in respect of actions that may under the Act be commenced as actions in rem.89 A right to proceed in rem against a ship or other property is conferred by the Act in the following circumstances: (a) A proceeding on a maritime lien in respect of a ship or other property subject to the lien. Such a lien may arise by reason of salvage, damage done by a ship, a claim for wages by master or crew of a ship or a claim for master’s disbursements.90 A maritime lien is a right in rem that follows the ship, which means that a claim secured by a maritime lien may be brought in rem against the ship even after the ship has been sold to a bona fide purchaser for value without notice.91 (b) A proprietary maritime claim, which is a proceeding claiming a proprietary interest in rem in a ship or a share of a ship, such as possession or legal or beneficial ownership,92 or claiming by reason of a mortgage over the ship93 or share thereof.94 Even if the ownership is disputed, the plaintiff is entitled to proceed in rem provided the action is not frivolous or vexatious.95 (c) A proceeding on a general maritime claim against the owner or demise charterer of a ship or other property who would be liable on an action in personam, such as a claim for damages arising out of the conduct or management of the ship, or for loss of, or damage to, goods carried on the ship.96 An action in rem within [page 110] this category can only be brought against the ship97 or other property98 if at

the time the cause of action arose, that ship or property was within the ownership, possession or control of the person who would be liable in respect of the claim in an action in personam, and was owned or demise chartered by that person at the time the proceedings were commenced99 in personam. A proceeding on a general maritime claim cannot (unlike a claim secured by a maritime lien) be brought against the ship in the hands of a subsequent owner.100 In this category of case, too, the plaintiff is entitled to proceed in rem even if the claim is disputed, provided the action is not frivolous or vexatious.101 5.9 A proceeding for a claim within categories (a) or (c) can be brought against a surrogate ship102 provided: i.

the person who would be liable in respect of the claim in an action in personam (the ‘relevant person’) was at the time the cause of action arose the owner or charterer of, or in possession or control of, the ship in relation to which the cause of action arose; and

ii.

that person is the owner103 of all the shares104 in the surrogate ship at the time of commencement of proceedings.105

It may be noted that the original ship need no longer be in the ownership or control of the owner of the surrogate ship at the time of proceedings. Indeed, it need not even be in existence. 5.10 The plaintiff must establish that the ‘relevant person’ is the beneficial owner of the ship (or surrogate ship) or other property, as the case may be.106 Because the court’s in rem jurisdiction depends on the existence of that connection between the ‘relevant person’ and the ship, the person invoking the jurisdiction (the plaintiff) must establish that jurisdictional fact on the balance of probabilities in the light of all of the evidence available at the interlocutory stage at which the existence of [page 111] jurisdiction is considered.107 The Admiralty Act 1988 (Cth) uses the phrase ‘the owner’ in a proprietary sense, meaning a person having the right or power to have and dispose of dominion, possession and enjoyment of the ship.108 Thus, it does not suffice for the plaintiff to establish that the ‘relevant person’ owns all the shares in a related company that is the registered owner of the ship, nor that

the ‘relevant person’ holds all the shares in a unit trust that owns the ship.109 Conversely, the fact that the ‘relevant person’ is the registered owner of the ship does not suffice if that person is not also the beneficial owner at the time proceedings are commenced.110 In Ship Gem of Safaga v Euroceanica (UnitedKindom) Ltd,111 a Full Court of the Federal Court of Australia held that a person can only be ‘owner’ of a ship if he, she or it beneficially owns all of the shares in the ship. This conclusion is to be regretted. Under Australian law, property in a ship is divided into 64 shares.112 Presumably, beneficial ownership of only one of those 64 shares by someone other than the ‘relevant person’ would suffice to preclude arrest. Furthermore, Australian law permits up to five persons to be registered as joint owners of a share in a ship.113 If someone other than the ‘relevant person’ owned half of a share, it would be true to say that the ship was only partly owned by the ‘relevant person’, although that person would own one hundred and twenty-seven one-hundred-and-twenty-eighths of the ship. In Tisand Pty Ltd v Owners of the Ship MV Cape Moreton (ex Freya),114 a Full Court of the Federal Court of Australia115 held that the existence, nature and extent of any ownership rights in the ship or other property must be determined by the lex causae, the law indicated by the Australian choice-of-law rules, rather than by Australian law as the lex fori.116 The law of Australia should then be applied to govern the characterisation of those rights to determine whether they amount to what Australian law would regard as ‘ownership’.117 The lex causae governing questions of ownership of moveable property is generally the lex situs,118 and the Full Court went on to state, obiter, that there were powerful reasons favouring application of [page 112] the law of the country of registry of the ship as the relevant lex situs in relation to questions of title, property and assignment.119 Because there had been no proof of foreign law, the Full Court went on to apply the ‘so-called presumption’ that the relevant lex causae was the same as Australian law, while expressing frank doubts about whether the presumption was appropriate in relation to complex questions of statutory law.120 In Thor Shipping A/S v Ship Al Duhail,121 Dowsett J of the Federal Court of Australia expressed his reluctance to apply the law of a newly-built ship’s first registration, Qatari law, to determine whether the act of registration was

sufficient to effect a change of ownership of the ship while it was in New Zealand, where it was built. Dowsett J said that he was inclined to apply the law of New Zealand, the lex situs immediately before first registration, to determine whether registration was effective to transfer title, but in any event found it unnecessary to decide the point for other reasons.122 In contrast, in The WD Fairway,123 Tomlinson J of the English High Court said that the place of registration is ‘often a most artificial situs’, with the result that questions of legal title should be determined by reference to the law of the place of registration, but interests falling short of legal ownership should not.124 In Euroceanica (United Kingdom) Ltd v The Ship Gem of Safaga (as surrogate for the ships JBU Opal and JBU Onyx),125 Rares J of the Federal Court of Australia considered whether to apply Indian law as the law of registration of a ship, using the Tisand approach, before concluding that it was unnecessary finally to decide the issue on the facts of the case and the evidence of Indian law. In reversing Rares J’s decision on appeal,126 a Full Court of the Federal Court also found it unnecessary (once again) to express a concluded view on this issue, which is surely by now ripe for decision one way or the other. 5.11 Although the plaintiff’s right to proceed in rem against the ship (or other property) is defined by reference to the identity of the person who would be liable in personam (the ‘relevant person’), it does not follow that an in rem claim is, in essence, a claim against that person. The proposition that an in rem action is merely a procedural means of bringing an action in personam against the shipowner is accepted in the United Kingdom but not in Australia.127 In Republic of India v India Steamship Co Ltd (The Indian Grace) (No 2),128 the House of Lords held that [page 113] a plaintiff who had obtained judgment in personam against a shipowner defendant was estopped from proceeding in rem against a ship owned by the defendant when the in personam judgment remained unsatisfied, because the in rem action was one between the same parties on the same cause of action as the earlier in personam proceeding against the shipowner. That proposition was rejected by a majority of the Full Court of the Federal Court of Australia in Comandate Marine Corp v Pan Australia Shipping Pty Ltd.129 Allsop J (with whom Finkelstein J agreed) pointed out that (among other things) the English

view epitomised by The Indian Grace fails to explain the fact that a plaintiff whose claim is secured by a maritime lien may bring an action in rem against the ship even after the ship has been sold to a third party by the person who would be liable in personam,130 an outcome that would not be possible if the in rem action were not an action against the ship, rather than the original shipowner.131 Until the High Court of Australia says otherwise, the law of Australia is that the action in rem, at least prior to the unconditional appearance of a ‘relevant person’, is an action against the ship, not the owner (or demise charterer).132 After an unconditional appearance by the ‘relevant person’, the action continues as an action in rem and also as if it were an action in personam against the person who appears.133 It follows that a plaintiff whose judgment in personam on a maritime claim remains unsatisfied can pursue that claim in an action in rem against a ship of the defendant. Despite having been held liable in respect of that claim, the defendant can still be described as ‘the person who would be liable’ because the term is one of identification and not one describing an actual liability in law or in fact.134 5.12 Under s 20 of the Admiralty Act 1988 (Cth), service of initiating process or arrest can only be effected against one ship at a time, but this does not prevent the issue of concurrent writs in respect of several ships.135 A ship136 or other property may be arrested in a proceeding commenced as an action in rem in any court having jurisdiction under the Act, anywhere within Australia, including its territorial waters, subject, in the case of a foreign ship or cargo on board a foreign ship, to respect for the right of innocent passage under the Geneva Convention on the Territorial Sea and the Contiguous Zone of 1958.137 No action [page 114] in rem lies against a ship, cargo or other property belonging to the Commonwealth, a state, the Northern Territory or Norfolk Island, but this statutory immunity does not extend to ships or property belonging to a trading corporation that is an agency of a government.138 Jurisdiction in rem is therefore based upon the presence of the ship or other property in Australia and its territorial waters at the time of service and/or arrest. The provisions for service out of the jurisdiction cannot be used to permit

service of process in rem abroad,139 and substituted service cannot be ordered if the ship cannot be found.140 Under s 5(1) the court has jurisdiction regardless of where the cause of action arose or the owner of the ship or cargo resides. Although the presence of the ship in the territory of Australia is necessary for the commencement of proceedings in rem, a ship may be permitted, in exceptional circumstances, to leave Australian territorial waters while under arrest.141 5.13 Part IV of the Admiralty Act 1988 (Cth) deals with transfer and remittal of proceedings. Section 28(1) provides that the Federal Court and state (but not territory) Supreme Courts may remit proceedings in rem to the Federal Magistrates’ Court or to any state or territory court (including inferior courts)142 that would have had jurisdiction if the action had been commenced in that court in personam and service of initiating process had been made in that locality.143 Territory courts may only remit in rem matters to other territory courts.144 Section 27(1) provides that the Federal Court, the Federal Magistrates’ Court or the Supreme Court of any state or territory may, at any stage of the proceedings, upon application or on its own motion, transfer proceedings to any other court that has Admiralty jurisdiction. However, s 27(2) provides that in rem proceedings cannot be transferred to a court that would not have jurisdiction in respect of in rem proceedings in the absence of remitter, which means that there cannot be transfer of proceedings to the Federal Magistrates’ Court or to inferior state or territory courts. 5.14 Normally, in the absence of personal jurisdiction over, or unconditional appearance by, the shipowner, the jurisdiction of the court is limited to the ship arrested and no execution can be levied against other ships or property of the same ownership within the jurisdiction, should the amount of the plaintiff’s verdict exceed [page 115] the value of that ship.145 However, if a plaintiff with a claim on a maritime lien arrests a surrogate ship, whether in Australia or elsewhere in the world, this will not prevent the arrest of the ship subject to the lien if the amount recovered in respect of the surrogate ship is less than the amount of the maritime lien.146 If the owner who would be liable on an action in personam appears, whether to contest the action on its merits or merely to secure the release of the ship, the

court gains jurisdiction in personam and damages and costs may be awarded against the owner personally.147 If the owner is not personally liable on the claim, the liability on appearance is limited to costs.148 5.15 Section 29 of the Act provides that where a court stays or dismisses proceedings under the Act on the ground that the claim should be determined by arbitration or be referred to the jurisdiction of a foreign court, the court may order that the ship or property arrested be retained as security for the satisfaction of any award or judgment or released upon the provision of equivalent security. Section 29(3) provides that the court may impose such conditions as are just, including a condition that equivalent security be given in the foreign country.149 Although the discretion given by s 29(3) is broad, it does not authorise the imposition of a requirement that new or fresh security be given for the first time by a party who has not previously given security.150 In practice, ships are often arrested under in rem proceedings in Australia without any further in personam proceedings occurring, the arrest being solely for the purpose of obtaining security for a judgment or arbitral award to be made in some foreign country.151 In Allonah Pty Ltd v The Ship Amanda N,152 Shepherd J held that s 29 does not prevent the commencement of an action in rem after arbitration has already commenced in another country, in order to obtain security for any award that might be made in favour of the claimant. Also, s 4(3)(u) provides that a claim to enforce an arbitral award (including a foreign award within the meaning of the International Arbitration Act 1974 (Cth)) may be brought as an action in rem, provided the award was made in respect of a proprietary or general maritime claim. The court is not limited to the options of retaining the ship or substitute security and may, in an exceptional case, order the release of the ship without security.153 [page 116]

Choice of Law in Federal Jurisdiction 5.16 A court exercising federal jurisdiction, whether a federal, state or territorial court, may have to determine issues that are not regulated by any federal law. Such a gap must be filled by state or territorial law. This leads to a

choice-of-law problem, which the Commonwealth Parliament has sought to resolve by enacting ss 79 and 80 of the Judiciary Act 1903 (Cth): 79 The laws of each State or territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable. 80 So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.

Similar provision is made in s 80A in relation to the courts of the Northern Territory when exercising jurisdiction in suits against the Commonwealth or between the Territory and the Commonwealth, and to the courts in all other territories154 when exercising jurisdiction in suits against the Commonwealth. The provisions of ss 79 and 80 apply to the High Court in the exercise of its original jurisdiction.155 Both ss 79 and 80 invoke the law of the state or territory in which the court is exercising jurisdiction. This raises no problem where a state or territorial court is exercising federal jurisdiction. Even without those provisions the local law would have been applicable. As Kitto J said in Anderson v Eric Anderson Radio and TV Pty Ltd:156 To confer federal jurisdiction in a class of matters upon a state court is therefore not, if no more be added, to change the law which the court is to enforce in adjudicating upon such matters; it is merely to provide a different basis of authority to enforce the same law.

The relevance of ss 79 and 80 is therefore primarily for federal courts, although they may have some significance when state or territory courts are called upon to apply federal law in the exercise of federal jurisdiction. For example, in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd,157 proceedings were brought in the Supreme Court of Queensland alleging the commission of offences against the Customs Act 1901 (Cth) and the Excise Act 1901 (Cth). Hayne J (with whom Gleeson CJ and McHugh J agreed) said:158 [page 117] The Customs Act and Excise Act not providing for what standard of proof is to be applied in

proceedings of the present kind, it is necessary to consider the operation of ss 79 and 80 of the Judiciary Act. When hearing the proceedings, the Supreme Court of Queensland exercises federal jurisdiction. Section 79 of the Judiciary Act picks up and applies State laws, including the laws relating to procedure, evidence and the competency of witnesses. No State law was said to prescribe the standard of proof to be applied in cases of the present kind. Section 80 therefore operates, ‘[s]o far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect’, to pick up and apply the common law as modified by the Constitution and State statute law.

Because there is only one common law for the whole of Australia,159 it is now clear that s 79 does not pick up common law rules because the phrase ‘the laws of each state or territory’ is inappropriate to refer to the common law.160 Common law rules are ‘picked up’ by s 80, including the rules of private international law, which are part of the single common law of Australia, as modified by the statutory rules of the state or territory in which the court is exercising jurisdiction.161 It also includes statute law of the state or territory modifying common law rules,162 and the decisional law of the Supreme Court of that state or territory in the interpretation of a local statute.163 The idiosyncratic phrasing of s 79 created considerable uncertainty about the extent to which state or territorial laws are made applicable in federal courts but most of the controversies are now settled. Despite the fact that s 79 refers to ‘laws relating to procedure, evidence, and the competency of witnesses’, there is no doubt that the section also picks up laws that regulate the substantive rights of the parties,164 such as statutes providing for contribution between tortfeasors,165 limitation of actions,166 or [page 118] the award of damages in lieu of an injunction.167 Furthermore, it is now established that s 79 makes applicable the Evidence Acts of the states and territories,168 except where federal law makes contrary provision or indicates that it is to cover the field, as it has done in relation to business records in s 69 of the Evidence Act 1995 (Cth).169 5.17 More difficulty has attended the question of whether laws that regulate the business and procedure of state and territorial courts are ‘picked up’ by s 79. It is obvious that no state or territorial legislature can prescribe the procedure to be followed in a federal court, but, in the absence of a contrary provision, is a court exercising federal jurisdiction bound by local procedural remedies and limitations?

It is clear that ss 79 and 80 only adopt that part of local law by which ‘the rights of the parties to the lis are to be ascertained and matters of procedure are to be regulated’.170 They do not pick up any other laws, however closely related they may be to the litigation, such as state or territory provisions for legal aid or the payment of costs from a suitors’ fund.171 Section 79 does not alter the meaning of state or territory law, which is ‘picked up’ with its meaning unchanged.172 However, if that principle were to be applied too literally, it would follow that no statute regulating the business of state or territorial courts identified by name could ever be made applicable to a federal court. In Kruger v Commonwealth,173 Gaudron J said: ‘I see no reason why s 79 cannot “pick up” limitation laws or other statutory provisions merely because they are expressed in terms applying specifically to State or Territory courts’. That passage was quoted with approval by a majority of the High Court in both Australian Securities and Investments Commission v Edensor Nominees Pty Ltd174 and [page 119] Solomons v District Court (NSW).175 Similarly, in Austral Pacific Group Ltd (in liq) v Airservices Australia,176 Gleeson CJ, Gummow and Hayne JJ said (obiter): The closing words of s 79 indicate, as the authorities confirm, that the section does not enable a court exercising federal jurisdiction to give an altered meaning to a State statute which it is required to apply. The qualification expressed in those authorities, but inapplicable in this litigation, is that a State statute may be ‘picked up’ in a federal court even though in its own terms the State statute is limited in its operation to the courts of the State in question.

For example, in Northern Territory v GPAO,177 a mother commenced proceedings in the Darwin Registry of the Family Court of Australia, seeking sole guardianship of her child and a revocation of previous access orders made in favour of the father, claiming that the father had sexually abused the child. On application by the father, the Registrar of the court issued a subpoena to the Manager of the Child and Family Protective Services Unit of the Northern Territory Health Services Department, requiring him to produce to the court all files and records in relation to the child. The manager was an ‘authorized person’ for the purposes of s 97(3) of the Community Welfare Act 1983 (NT), which

provided that ‘authorized persons’ were not required to produce documents ‘in a court’ or disclose information ‘to a court’ if those documents or that information related to the performance of his or her functions or duties. The question thus arose of whether s 97(3) applied to the Family Court, having been ‘picked up’ by s 79 of the Judiciary Act. By a majority of four to three, the court held that s 97(3) did apply in the Family Court. Gleeson CJ and Gummow J said:178 The term ‘court’ is not defined in the Community Welfare Act. Ordinarily, it would be read as identifying the courts of the Northern Territory itself. However, the authorities discussed by Gibbs J in John Robertson & Co Ltd v Ferguson Transformers Pty Ltd show that the circumstance that s 97(3)(a) was intended by the Northern Territory legislature to apply in Northern Territory courts does not render s 79 inapplicable to courts which are exercising federal jurisdiction. The provisions of the Community Welfare Act may be ‘picked up’ by s 79 in the Family Court if the other criteria for the operation of s 79 are satisfied.

The other criteria for the operation of s 79 to which Gleeson CJ and Gummow J referred were that neither the Constitution nor a law of the Commonwealth ‘otherwise provided’. Gleeson CJ and Gummow J concluded that neither the Evidence Act 1995 (Cth), nor the Family Law Act 1975 (Cth) nor the Family Law Rules 1984 (Cth) ‘otherwise provided’. Gaudron J agreed with Gleeson CJ and Gummow J on that issue, but said nothing about the reasons why s 97(3) of the Northern Territory Act should be picked up by s 79,179 perhaps because of the views she expressed in Kruger, that there is no reason why state or territory Acts should not be picked up by s 79 despite the fact that they are expressed to apply to state or [page 120] territory courts.180 Nevertheless, her Honour did conclude that s 97(3) was picked up, despite the fact that the Northern Territory Act referred to courts generally, not federal courts specifically. Hayne J also agreed with Gleeson CJ and Gummow J, thus creating a majority on the issue.181 The Federal Court had long taken a similar view, holding in several cases that any state statute that was expressed to apply to courts of that state generally would be assumed to be applicable to proceedings in the Federal Court.182 This has been held to include (among others): s 53 of the Commercial Arbitration Act 1985 (WA) granting power to courts in Western Australia generally to stay proceedings brought in breach of an arbitration agreement;183 and s 29 of the Stamp Duties Act 1920 (NSW) making unstamped documents inadmissible in

evidence in civil proceedings in New South Wales.184 5.18 If a law of the Commonwealth ‘otherwise provide[s]’, state or territory law is ousted by the terms of s 79. The test for determining whether a Commonwealth law ‘otherwise provide[s]’ is whether the Commonwealth legislation is irreconcilable with the state or territory provisions.185 For practical purposes, the test is no different from that used to determine whether state legislation is inconsistent with federal legislation for purposes of the Constitution, s 109.186 Thus, for example, if a Commonwealth provision simply sets a limitation period, it does not oust the operation of a state or territory law allowing amendment of pleadings after expiration of the limitation period, as the former provision is not irreconcilable with the latter.187 Similarly, if a Commonwealth provision sets a limitation period and allows the court to extend time, it does not oust the operation of a state or territory law that gives the court discretion to revive a dormant application and retrospectively to grant an extension of time.188 State law is excluded if the Commonwealth legislation creates a legislative scheme ‘complete on its face’, leaving no room for the picking up of state legislation, even if there is no express provision in the federal legislation.189

Effect of change of venue 5.19 Leaving aside a change of venue pursuant to s 5(2) of the cross-vesting legislation,190 a change of venue in the exercise of federal jurisdiction may occur in two situations: by remittal pursuant to s 44 of the Judiciary Act 1903 (Cth), and by [page 121] removal of the cause to another registry of the High Court, Federal Court or Family Court of Australia. The general principle is that a change of venue from one Australian law area to another before the hearing of the substance of the suit will have an effect on the applicable law both as to substance and procedure. Indeed, the possible effect of such a change on the rights of the parties is a major consideration in choice of venue.191 Even a change of venue within the same law area from a federal court to a state or territory court may affect the rights of the parties since it may make

procedural laws applicable that are not picked up by s 79.192 Where a federal court commences the substantive hearing in a particular place and subsequently changes venue for reasons of convenience, for example, to hear evidence or to deliver judgment, there is authority to support the proposition that the substantive law is not thereby changed.193

Suits by or Against the Commonwealth or a State 5.20 Section 75(iii) of the Constitution invests the High Court with original jurisdiction in all matters ‘in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party’. The extension to persons on behalf of the Commonwealth has been interpreted broadly as covering Commonwealth-owned institutions whether in a governmental capacity or not,194 and whether or not the government instrumentality has corporate personality.195 Section 75(iv) of the Constitution likewise invests the High Court with original jurisdiction in suits between a state and a resident of another state. This also extends to a state instrumentality.196 5.21 Like the s 75(iv) diversity jurisdiction, the s 75(iii) jurisdiction is conferred directly by the Constitution and, therefore, remains unalterably with the High Court. Proceedings between the Commonwealth and a state (including subsidiary bodies) fall within the exclusive jurisdiction of the High Court.197 Other proceedings involving the Commonwealth or between a resident of a state and another state [page 122] can under s 39(2) of the Judiciary Act 1903 (Cth) be brought in state courts198 as well as in the High Court. The High Court, however, can remit proceedings within its original jurisdiction, including suits between a non-state entity and the Commonwealth, under s 44(1) to any federal court, or court of a state or territory,199 with the exception of suits falling within its exclusive jurisdiction which can be remitted under s 44(2) to the Federal Court or any court of a state or territory. In addition, it can remit any proceeding to which the Commonwealth is a party to the Federal Court under s 44(2A). The provisions overlap and are

not mutually exclusive,200 and consequently the choice between the Federal Court and a state or territory court will be available in almost all cases.201 Upon remittal under s 44(2) or (2A) the court to which the matter is removed has jurisdiction.202 5.22 Section 75 confers jurisdiction on the High Court. Section 64 of the Judiciary Act provides that in a suit to which the Commonwealth or a state is a party, the rights of the parties shall as nearly as possible be the same as in a suit between subject and subject. This has the effect of subjecting the Commonwealth or a state or any of their instrumentalities to the rights and liabilities of subjects, although it is not essential for the suit to be commenced for those rights and liabilities to come into existence.203 In Commonwealth v Mewett,204 Dawson, Toohey and McHugh JJ held that Commonwealth liability in tort depends upon the removal of Commonwealth immunity by s 56 and/or s 64, but Brennan CJ, Gummow and Kirby JJ held that it is s 75(iii) of the Constitution that denies any operation to doctrines of Crown or executive immunity, and ss 56 and 64 of the Judiciary Act merely recognise the liability without being its origin. In Blunden v Commonwealth,205 a majority of the High Court (Gleeson CJ, Gummow, Hayne and Heydon JJ) accepted the proposition that it is s 75(iii) that denies the Commonwealth the protection of the doctrines of Crown or executive immunity. 5.23 Under s 78 of the Constitution, the Commonwealth Parliament may make laws conferring rights to proceed against the Commonwealth or a state. A law conferring a right to proceed against the Commonwealth is found in s 56(1) of the Judiciary Act 1903 (Cth). That section provides: A person making a claim against the Commonwealth, whether in contract or in tort, may in respect of the claim bring a suit against the Commonwealth — (a) in the High Court; (b) if the claim arose in a State or Territory—in the Supreme Court of that State or Territory or in any other court of competent jurisdiction of that State or Territory; or

[page 123] (c) if the claim did not arise in a State or Territory—in the Supreme Court of any State or Territory or in any court of competent jurisdiction of any State or Territory.

Section 58 of the Judiciary Act 1903 (Cth) provides: Any person making any claim against a State, whether in contract or in tort, in respect of matter in

which the High Court has original jurisdiction or can have original jurisdiction conferred upon it, may in respect of the claim bring a suit against the State in the Supreme Court of the State, or (if the High Court has original jurisdiction in the matter) in the High Court.

It has been held by a majority of the New South Wales Court of Appeal in Commr for Railways (Qld) v Peters206 that the words ‘in contract or in tort’ as used in s 58, are not words of limitation, but cover any claim that can be brought against a state in the original jurisdiction of the High Court. An action may be brought under s 56 against the Commonwealth or its instrumentalities,207 by any plaintiff, whether a natural person or a corporation, whether Australian or foreign, no matter where the breach of contract or the tort occurred.208 If the claim brought under s 56 arose in a state or territory, the action must be brought in either the High Court, or in a court of competent jurisdiction in that state or territory. Because s 56 refers only to the High Court and to state and territory courts, no action or cross-claim may be brought under that section against the Commonwealth in the Federal Court.209 The Federal Court can only obtain jurisdiction over claims against the Commonwealth by way of remitter under s 44 of the Judiciary Act of proceedings commenced in the original jurisdiction of the High Court under s 75(iii) of the Constitution.210 If the claim arose outside Australia, or in Australian waters outside the boundaries of any state or territory, the action can be brought in any court of competent jurisdiction.211 The words ‘state or territory in which the claim arose’ refer to the place where the cause of action arose and not merely the place where the claim was made.212 Section 56(1)(b) imposes a restriction on the jurisdiction with which state courts have been invested by s 39(2) of the Judiciary Act. That restriction can be waived by the Commonwealth or its instrumentality submitting to the jurisdiction.213 If a court other than that of the place where the cause of action arose hears the matter, is it obliged to apply the law of that place? In Suehle v Commonwealth214 Windeyer J was of that view. In that case the plaintiff had been injured in South Australia but brought suit in the Canberra registry of the High Court. It was heard by Windeyer J in Sydney and his Honour assumed that ss 79 and 80 would [page 124] normally direct him to apply the law of that state. A conflict arose in that the law of New South Wales at the relevant time treated contributory negligence as an

absolute bar to an action for negligence, but the law of South Australia did not. On the view he took of the facts, it was not necessary for Windeyer J to resolve that question, but he opined215 that s 56 implied a choice-of-law rule directing, as an exception to ss 79 and 80, that in the case of an action in tort or contract against the Commonwealth the law of the place where the cause of action arose was to apply, in this case, South Australia.216 It was not necessary for the High Court to consider the issue in Breavington v Godleman,217 where the plaintiff had brought action in the Supreme Court of Victoria against Telecom as a Commonwealth instrumentality, since on any view of the common law choice-of-law rules in tort the law of the Northern Territory, the place where the cause of action arose, was applicable. Brennan J218 assumed without comment the correctness of Windeyer J’s view by stating that if the action had been commenced in the High Court the law of the Northern Territory would have been applicable by virtue of s 56. Dawson J219 said that ‘there is much to be said for the view of Windeyer J, although it is not beyond controversy’. It would follow, as Brennan J indeed assumed,220 that if jurisdiction were conferred on a state court outside s 56(1)(b) by the defendant’s submission, as was the case in Breavington v Godleman, the choice-of-law rule implied in s 56 would not be applicable. On the other hand, Gaudron J rejected the view that s 56 should be treated as a choice-of-law provision in both Commonwealth v Mewett221 and Kruger v Commonwealth.222 There are considerable difficulties in reading into a section dealing with jurisdiction an implicit choice-of-law rule. In the first place, the section on the face of it appears to deal only with jurisdiction. It is difficult to see how any inference can be drawn that it contains a choice-of-law rule. Second, it would appear that the restriction in s 56(1)(b) and consequently its operation as a choice-of-law rule can be waived by submission. Third, as Gaudron J pointed out in Commonwealth v Mewett,223 s 56 applies not only to claims in tort but also to claims in contract, which are generally governed by the proper law of the contract, not the law of the place of its breach. The better view surely is that s 56 is only concerned with jurisdiction.224 Clearly, s 58 is only concerned with jurisdiction. [page 125] It has been suggested that s 64 of the Judiciary Act contains a choice-of-law

rule that displaces ss 79 and 80 where the Commonwealth or one of its instrumentalities is a party. As was pointed out, that section provides that in suits to which the Commonwealth is a party the rights of the parties shall be as nearly as possible the same as in a suit between subject and subject. The immediate effect of that section is to subject the Commonwealth to the same rights and liabilities as private individuals, that is, the general law of contracts, torts etc, both as to substance and as to procedure.225 In Commonwealth of Australia v Dixon226 Mahoney JA took the view that the effect of s 64 was to determine the rights and liabilities of the Commonwealth according to the law of the place where the suit by, or against, the Commonwealth was first instituted. Since the operation of ss 79 and 80 was then excluded, it followed that a change of venue could not affect the rights and liabilities of the Commonwealth except as regards the procedure in the narrow sense of the court to which the venue was changed. Similarly, in British American Tobacco Australia Ltd v Western Australia,227 McHugh, Gummow and Hayne JJ accepted the argument that s 64 is a law that ‘otherwise provides’ for the purposes of s 79, thereby displacing the operation of state or territory law that would otherwise be ‘picked up’ by s 79 (see 5.18). _________________________ 1.

Constitution s 75(ii).

2.

See note 1 above at s 75(iii).

3.

See note 1 above at s 75(iv).

4.

See note 1 above at s 76(iii).

5.

R v Macdonald (1953) 88 CLR 197 at 199.

6.

Dahms v Brandsch (1911) 13 CLR 336.

7.

Cadet v Stevens (1966) 40 ALJR 171 n; noted in (1967) 40 ALJ 361.

8.

Foxe v Brown (1985) 58 ALR 542.

9.

Re Judiciary and Navigation Acts (Advisory Opinions Case) (1921) 29 CLR 257 at 265.

10. South Australia v Victoria (1911) 12 CLR 667 at 675 per Griffith CJ. 11. (1922) 31 CLR 290. 12. (1934) 52 CLR 282. 13. (1985) 159 CLR 22; 62 ALR 1. 14. Crouch v Commr for Railways (Qld) (1985) 159 CLR 22; 62 ALR 1. 15. Rochford v Dayes (1989) 84 ALR 405. 16. (2003) 217 CLR 30 at 73; 200 ALR 403 at 431, at [110] per Kirby J. 17. In BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at 433; 211 ALR 523 at [57], Gummow J remarked: ‘Nor was the proceeding … a matter between residents of different States within the meaning of s 75(iv) of the Constitution, given the corporate character of the defendants’.

18. (1985) 159 CLR 22; 62 ALR 1. 19. See note 18 above at CLR 38; ALR 8 per Mason, Wilson, Brennan, Deane and Dawson JJ. 20. (2006) 226 CLR 362 at 397; 224 ALR 625 at 628, at [12] per Gleeson CJ, Gummow, Kirby and Hayne JJ. 21. (1995) 189 CLR 253 at 282–4; 140 ALR 129 at 145–7. 22. See note 21 above, referring to the ‘shield of the Crown’ immunity discussed in such cases as Townsville Hospitals Board v Townsville City Council (1982) 149 CLR 282. 23. See note 22 above, citing Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219 at 230–1. 24. [2011] NSWCA 60 at [30] per Allsop P (with whom Hodgson JA and Sackville AJA agreed). 25. (1922) 31 CLR 290 at 324. See also at 295, 296 per Knox CJ and Gavan Duffy J, at 327 per Higgins J. 26. For a consideration of the meaning of ‘habitual residence’, see Chapter 13, especially 13.34–13.39. 27. Cadet v Stevens (1966) 40 ALJR 171 n. 28. R v Macdonald; Ex parte Macdonald (1953) 88 CLR 197; R v Oregan; Ex parte Oregan (1957) 97 CLR 323. 29. Dzikowski v Mazgay (unreported, 7 July 1965) noted in (1967) 40 ALJ 361; Foxe v Brown (1985) 58 ALR 542 at 546 per Mason J. 30. Spratt v Hermes (1965) 114 CLR 226 at 241 per Barwick CJ. 31. Strawbridge v Curtiss, 7 US (3 Cranch) 267 (1806); Caterpillar Inc v Lewis, 519 US 61 at 68 (1996); Smith v Bayer Corp, 131 S Ct 2368 at 2373 (2011). 32. Watson and Godfrey v Cameron (1928) 40 CLR 446. 33. (1979) 143 CLR 398; 23 ALR 385. 34. (1981) 36 ALR 345. 35. Johnstone v Commonwealth (1979) 143 CLR 398 at 408; 23 ALR 392 per Aickin J, quoted with approval in MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601 at 635-6; 247 ALR 58 at 69, at [48] per Gleeson CJ, Gummow and Hayne JJ. 36. Scott v Bowden (2002) 194 ALR 593. 37. See note 36 above. 38. (1996) 188 CLR 595; 143 ALR 129. 39. [2003] HCA Trans 255 at 1384–1465, cited in Fish v Solution 6 Holdings Ltd (2006) 225 CLR 180 at 226 n 178; 227 ALR 241 at 277 n 177 per Kirby J. 40. Johnstone v Commonwealth (1979) 143 CLR 398 at 408–9; 23 ALR 392–3 per Aickin J. 41. See note 40 above, quoted with approval in MZXOT v Minister for Immigration (2008) 233 CLR 601 at 635-6; 247 ALR 58 at 69, at [48] per Gleeson CJ, Gummow and Hayne JJ. 42. McCauley v Hamilton Island Enterprises Pty Ltd (1986) 69 ALR 270 at 275 per Mason J. 43. Scott v Northern Territory (2005) 147 NTR 6 at 21 per Mildren J. 44. Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2007) 157 FCR 260 at 279; 239 ALR 466 at 483, at [61] per Spender, French and Cowdroy JJ. 45. See below, at 5.16–5.18. 46. (2005) 147 NTR 6.

47. The court held that it did have power to order the exhumation by operation of the Jurisdiction of Courts (Cross-Vesting) Acts 1987 (Northern Territory and Queensland), which conferred on the Northern Territory court the power to order exhumation enjoyed by the Queensland courts. 48. (1997) 74 FCR 184. 49. See note 48 above at 188–9 per Foster J. 50. State Bank of NSW v Commonwealth Savings Bank of Australia (1984) 154 CLR 579 at 586 per Gibbs CJ. 51. Johnstone v Commonwealth (1979) 143 CLR 398; Robinson v Shirley (1982) 149 CLR 132. 52. (1982) 151 CLR 38; 41 ALR 353. 53. See note 52 above at CLR 47; ALR 359 per Gibbs CJ, Wilson and Brennan JJ, quoted with approval in BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at 445; 211 ALR 523 at 546–7, at [100] per Gummow J. See also Fielding v Doran (1984) 60 ALR 342. 54. McCauley v Hamilton Island Enterprises Pty Ltd (1987) 69 ALR 270. 55. Weber v Aidone (1981) 36 ALR 345. 56. Crouch v Commr for Railways (Qld) (1989) 85 ALR 347. 57. Guzowski v Cook (1981) 149 CLR 128; 38 ALR 297. 58. McCauley v Hamilton Island Enterprises Pty Ltd (1987) 69 ALR 235. 59. Mabo v Queensland (1986) 64 ALR 1; Utemorrah v Commonwealth (1992) 108 ALR 225. 60. (2008) 233 CLR 601; 247 ALR 58. 61. In MZXOT itself, the High Court held that the broad power of remitter under s 44 was restricted by the operation of the Migration Litigation Reform Act 2005 (Cth), which had the effect of preventing remitter in cases seeking judicial review of migration decisions unless the application were made within a very short time period. 62. See, for example, O’Donoghue v Ireland (2008) 234 CLR 599; 244 ALR 404; SGH Ltd v Federal Commissioner of Taxation (2002) 210 CLR 51; 188 ALR 241. 63. See, for example, Edwards v Santos Ltd (2011) 242 CLR 421; 275 ALR 489; Hogan v Australian Crime Commission (2010) 240 CLR 651; 267 ALR 12; X v Australian Prudential Regulation Authority (2007) 226 CLR 630; 232 ALR 421; Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; 172 ALR 366. 64. Crosby v Kelly (2012) 203 FCR 451; 289 ALR 531 at 534, at [11] per Robertson J. 65. Hon Justice J Allsop, ‘Introduction to Jurisdiction of the Federal Court of Australia’, Federal Civil Litigation Precedents, LexisNexis, Sydney, 1998 (looseleaf), p 2105 at [2010]. See, for example, Australian Securities & Investments Commission v Landy DFK Securities Ltd (2002) 123 FCR 548 at 554, at [16] per Merkel J (if the claim arises under federal enactment, the fact that the defence raises non-federal issues that the Federal Court would not usually have jurisdiction to determine does not take the case out of the court’s jurisdiction). 66. (1945) 70 CLR 141 at 154 per Latham CJ, cited with approval in (among others) LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581–2; 49 ALR 599 at 602–3 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ; Australian Solar Mesh Sales Pty Ltd v Anderson (2000) 101 FCR 1 at 7; 175 ALR 566 at 571, at [13] per Burchett J (with whom Wilcox and Tamberlin JJ agreed). 67. LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581–2; 49 ALR 599 at 602–3 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ; Crosby v Kelly (2012) 203 FCR 451; 289 ALR 531 at 534, at [11] per Robertson J.

Felton v Mulligan (1971) 124 CLR 367 at 412–13 per Walsh J; Abebe v Commonwealth (1999) 197 68. CLR 510 at 557; 162 ALR 1 at 35–6, at [126] per Gaudron J; Australian Securities & Investments Commission v Landy DFK Securities Ltd (2002) 123 FCR 548 at 554, at [16] per Merkel J. 69. Felton v Mulligan (1971) 124 CLR 367 at 412–13 per Walsh J; Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 479; 31 ALR 161 at 172 per Stephen, Mason, Aickin and Wilson JJ; Abebe v Commonwealth (1999) 197 CLR 510 at 557; 162 ALR 1 at 35–6, at [126] per Gaudron J. 70. Australian Solar Mesh Sales Pty Ltd v Anderson (2000) 101 FCR 1 at 7; 175 ALR 566 at 571, at [12] per Burchett J (with whom Wilcox and Tamberlin JJ agreed), comparing the process to the fleeing Daphne being transformed into a laurel tree to escape the attentions of Apollo. 71. Westpac Banking Corp v Paterson (1999) 95 FCR 59 at 62; 167 ALR 377 at 381, at [13] per Branson, Sackville and Kiefel JJ. 72. Judiciary Act 1903 (Cth) s 39(2). 73. Admiralty Act 1988 (Cth) s 9. On admiralty jurisdiction, see below, 5.7–5.15. 74. See above, 5.3. 75. As to the process of ‘picking up’ of state legislation under s 79, see below, 5.16–5.18. 76. (2011) 245 CLR 1 at 26; 280 ALR 221 at 260, at [99] per French CJ. 77. (1971) 124 CLR 367 at 393; [1972] ALR 33 at 46, quoted with approval in Fencott v Muller (1983) 152 CLR 570 at 606; 46 ALR 41 at 66, per Mason, Murphy, Brennan and Deane JJ. 78. (2010) 261 ALR 441. 79. [2011] VSC 562. 80. See also Windsurf Holdings Pty Ltd v Leonard [2009] NSWCA 6 at [44]–[49] per Sackville AJA (applying s 79 to ‘pick up’ the Queensland limitation statute in a New South Wales state court exercising federal jurisdiction). 81. Judiciary Act 1903 (Cth) s 79. See below, 5.18. 82. See note 81 above at s 80. 83. (2010) 261 ALR 441 at 465, at [101] per Allsop P. 84. [2011] VSC 562. 85. United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC (2008) 163 FCR 183; 240 ALR 630. See now Admiralty Act 1988 (Cth) s 15(a). 86. The Ripon City [1897] P 226 at 242. See now Admiralty Act 1988 (Cth) s 15(b). 87. United States Trust Co of New York v The Ship Ionian Mariner (1997) 77 FCR 563; Bajpayee v Ship Estancia [2003] FCA 1640. See now Admiralty Act 1988 (Cth) s 15(c). 88. Including the external territories: Admiralty Act 1988 (Cth) s 7. 89. As to Admiralty jurisdiction in personam, see note 88 above at s 9. 90. Admiralty Act 1988 (Cth) s 15. See, for example, United States Trust Co of New York v The Ship Ionian Mariner (1997) 77 FCR 563; 149 ALR 200 (crew wages). 91. Harmer v Bell: The Bold Buccleugh (1851) 7 Moo PC 267; 13 ER 884. 92. Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404; 125 ALR 1. 93. A proprietary maritime claim in respect of a mortgage over a ship does not extend to the bunker fuel on the ship: see OW Bunker and Trading Co Ltd A/S v Ship MV Mawashi Al Gasseem (No 2) (2007) 242 ALR 342. Compare the position in relation to general maritime claims against a ship, which do extend

to the ship’s bunkers: see below note 97. 94. Admiralty Act 1988 (Cth) s 16, and see definition of “proprietary maritime claim” in s 4(2). 95. Owners of the Ship ‘Shin Kobe Maru’ v Empire Shipping Co Inc (1994) 181 CLR 404; 125 ALR 1. 96. See definition of ‘general maritime claim’ in Admiralty Act 1988 (Cth) s 4(3). The term is to be interpreted broadly: Port of Geelong Authority v The Ship ‘Bass Reefer’ (1992) 37 FCR 374; 109 ALR 505. 97. The right in rem against the ship extends to the bunker fuel on the ship: see Scandinavian Bunkering AS v Bunkers on Board the Ship FV Taruman (2006) 151 FCR 126 at 129–31, 133–4, 143–50; 231 ALR 605 at 607–8, 612, 622–8. 98. ‘Other property’ does not include bunker fuel on a ship, which cannot be the subject of in rem proceedings (and, thus, arrest) independently of the ship: Scandinavian Bunkering AS v Bunkers on Board the Ship FV Taruman (2006) 151 FCR 126 at 131–3; 231 ALR 605 at 610–12, 622–8. 99. Admiralty Act 1988 (Cth) ss 17, 18. See Kent v SS Maria Luisa (No 2) (2003) 130 FCR 12. 100. Dalgety & Co Ltd v Aitchison; The ‘Rose Pearl’ (1957) 2 FLR 219. 101. Owners of the Motor Vessel Iran Amanat v KMP Coastal Oil Pty Ltd (1999) 196 CLR 130; 161 ALR 434. 102. But not property other than a ship because Admiralty Act 1988 (Cth) s 19 does not contain the words ‘or other property’, as does s 17. 103. It is not sufficient that the relevant person is the demise charterer of the surrogate ship when the proceedings are commenced: Comandate Marine Corp v Ship Boomerang 1 (2006) 151 FCR 403; 234 ALR 169. 104. Ship Gem of Safaga v Euroceanica (United Kingdom) Ltd (2010) 182 FCR 27; 265 ALR 88. 105. Admiralty Act 1988 (Cth) s 19. See Laemthong International Lines Co Ltd v BPS Shipping Ltd (1997) 190 CLR 181; 149 ALR 675. 106. Malaysia Shipyard and Engineering Sdn Bhd v The Iron Shortland (1995) 59 FCR 535; 131 ALR 738. 107. Owners of the Ship ‘Shin Kobe Maru’ v Empire Shipping Co Inc (1994) 181 CLR 404 at 426; 125 ALR 1 at 14 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. 108. Tisand Pty Ltd v Owners of the Ship MV Cape Moreton (ex Freya) (2005) 143 FCR 43 at 73; 219 ALR 48 at 73, at [119] per Ryan and Allsop JJ. 109. Kent v SS Maria Luisa (No 2) (2003) 130 FCR 12. 110. Tisand Pty Ltd v Owners of the Ship MV Cape Moreton (ex Freya) (2005) 143 FCR 43; 219 ALR 48. 111. (2010) 182 FCR 27; 265 ALR 88. 112. Shipping Registration Act 1981 (Cth) s 11(1)(a). 113. See note 112 above at s 11(1)(c). 114. (2005) 143 FCR 43; 219 ALR 48. 115. The Full Court comprised only two members, Ryan and Allsop JJ, because the third member of the court, Cooper J, died after the hearing had commenced but before judgment was given. The parties consented to the matter being dealt with by Ryan and Allsop JJ as a Full Court pursuant to the Federal Court of Australia Act 1976 (Cth) s 14(3): see note 114 above at FCR 47. 116. See note 115 above at FCR 78–9; ALR 78–9 at [140] per Ryan and Allsop JJ. See also The Nazym Khizmet [1996] 2 Lloyd’s Rep 362 (CA); The Halla Liberty [2000] 1 HKC 659 (HK Court of First Instance). Compare the position in Singapore, which uses the lex fori exclusively: see Far East Oil

Tanker SA v Owners of the Ship ‘Andres Bonifacio’ [1991] 1 SLR 694. 117. Tisand Pty Ltd v Owners of the Ship MV Cape Moreton (ex Freya) (2005) 143 FCR 43 at 78–9; 219 ALR 48 at 78–9, at [140] per Ryan and Allsop JJ. 118. See generally Chapter 33. 119. Tisand Pty Ltd v Owners of the Ship MV Cape Moreton (ex Freya) (2005) 143 FCR 43 at 79; 219 ALR 48 at 79, at [146] per Ryan and Allsop JJ. 120. See note 119 above at FCR 80–1; ALR 80–1 at [150] per Ryan and Allsop JJ. In relation to the ‘socalled presumption’, see generally Chapter 17. 121. (2008) 173 FCR 524; 252 ALR 20. 122. See note 121 above at FCR 538-9; ALR at 30, at [51]. 123. [2009] 2 Lloyd’s Rep 191. 124. See note 123 above at 223, [103]. 125. (2009) 182 FCR 1; 263 ALR 68. 126. Ship Gem of Safaga v Euroceanica (United Kingdom) Ltd (2010) 182 FCR 27; 265 ALR 88. 127. Or in the United States, which adheres to a strong doctrine of personification of the ship, with the result (among others) that the ship may be held liable in rem when the shipowner would not be liable in personam: see, for example, Reed v The Yaka, 373 US 410 (1963). See generally Davies, ‘In defense of unpopular virtues: personification and ratification’ (2000) 75 Tul L Rev 337. 128. [1998] AC 878. 129. (2006) 157 FCR 45; 234 ALR 457. 130. See above, 5.8 and note 91. 131. Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45 at 78; 234 ALR 457 at 486, at [116] per Allsop J. 132. See note 131 above at FCR 81; ALR 489 at [128] per Allsop J. See also The Ship Hako Endeavour v Programmed Total Marine Services Pty Ltd (2013) 296 ALR 265 at 290, at [93] per Rares J (with whom Siopis J agreed). Compare, however, Thor Shipping A/S v Ship Al Duhail (2008) 173 FCR 524; 252 ALR 20, where it was held that head of state immunity in the owner of a ship precluded arrest of the ship in rem. 133. See note 132 above. 134. Ocean Industries Pty Ltd v Owners of the Ship ‘Steven C’ [1994] 1 Qd R 69; (1991) 104 ALR 383. 135. Kawasaki Steel Corp v ‘The Daeyang Honey’ (1993) 120 ALR 109, following The Berny [1979] QB 80. 136. Under the Admiralty Act 1988 (Cth) s 3(1) this term includes barges, lighters, hovercraft, off-shore industry mobile units and wrecks. 137. Admiralty Act 1988 (Cth) s 22(1)–(5). 138. Admiralty Act 1988 (Cth) s 8. 139. Aichhorn & Co KG v The Ship MV Talabot (1975) 132 CLR 449: see also Admiralty Act 1988 (Cth) s 23. 140. Survival & Industrial Equipment (Newcastle) Pty Ltd v Owners of the Vessel ‘Alley Cat’ (1992) 36 FCR 129. 141. Malaysia Shipyard and Engineering Sdn Bhd v Iron Shortland (1995) 59 FCR 535; 131 ALR 738; Den

Norske Bank (Luxembourg) SA v The Ship Martha II [1996] FCA 136; Comandate Marine Corp v Ship Boomerang I [2006] FCA 859; Tai Shing Maritime Co SA v Ship Samsun Veritas [2008] FCA 1546. 142. The Consumer, Trader and Tenancy Tribunal (NSW) is not a ‘court of the State of New South Wales’ for these purposes: China Shipping (Australia) Agency Co Pty Ltd v D V Kelly Pty Ltd (2010) 79 NSWLR 650. 143. There can only be remitter to a territory court if service of process was effected on the ship or property in that territory: Admiralty Act 1988 (Cth) s 28(1)(b). 144. Admiralty Act 1988 (Cth) s 28(2). 145. The Beldis [1936] P 51; and Admiralty Act 1988 (Cth) s 20(3). 146. Admiralty Act 1988 (Cth) s 20(4). See Patrick Stevedores No 2 Pty Ltd v The Proceeds of the Sale of the Vessel MV Skulptor Konenkov (1997) 75 FCR 47; 144 ALR 394; Morlines Maritime Agency Ltd v Proceeds of Sale of Ship Skulptor Vuchetich [1997] FCA 432. 147. Nagrint v The Ship Regis (1939) CLR 688; and Admiralty Act 1988 (Cth) s 31(1). 148. Admiralty Act 1988 (Cth) s 31(2). 149. See, for example, Sun Lucky Marine Co Ltd v The Ship Mu Gung Wha [1999] FCA 919. 150. Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1997) 150 ALR 345 at 350 per Tamberlin J. 151. Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45 at 63; 234 ALR 457 at 471, at [59] per Allsop J. 152. (1989) 21 FCR 60; 90 ALR 391. See also The Jalamatsya [1987] 2 Lloyd’s Rep 164. 153. The Bazias 3 [1993] QB 673. 154. Including external territories: Judiciary Act 1903 (Cth) s 3A. 155. Musgrave v Commonwealth (1937) 57 CLR 514 at 532 per Latham CJ; R v Oregan: ex parte Oregan (1957) 97 CLR 323. 156. (1965) 114 CLR 20 at 30. 157. (2003) 216 CLR 161; 201 ALR 1. 158. See note 157 above at CLR 204; ALR 33 at [132]. 159. See, for example, Lipohar v R (1999) 200 CLR 485 at 507–8; 168 ALR 8 at 20–1 per Gaudron, Gummow and Hayne JJ; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 152; 236 ALR 209 at 253, at [135] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; PGA v R (2012) 245 CLR 355 at 385; 287 ALR 599 at 626, at [111] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. 160. Commonwealth v Mewett (1997) 191 CLR 471 at 522; 146 ALR 299 at 325 per Gaudron J. 161. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 529–32; 172 ALR 625 at 639–42 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Blunden v Commonwealth (2003) 218 CLR 330 at 339; 203 ALR 189 at 194, at [18] per Gleeson CJ, Gummow, Hayne and Heydon JJ. 162. Bui v DPP (Cth) (2012) 244 CLR 638 at 660, 284 ALR 445 at 453, at [26] per French CJ, Gummow, Hayne, Kiefel and Bell JJ. 163. Parente v Bell (1967) 116 CLR 528 at 529 per Windeyer J; Davis v Federal Commissioner of Taxation (1989) 86 ALR 195. 164. British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30 at 59; 200 ALR 403 at 420, at [65] per McHugh, Gummow and Hayne JJ. 165. Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136; 173 ALR 619;

Bialkower v Acohs Pty Ltd (1998) 83 FCR 1; Henderson v Amadio Pty Ltd (No 1) (1995) 62 FCR 1. 166. Kruger v Commonwealth (1997) 190 CLR 1 at 140; 146 ALR 126 at 217 per Gaudron J; Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 593–4; 177 ALR 329 at 350, at [74] per Gleeson CJ, Gaudron and Gummow JJ; Solomons v District Court (NSW) (2002) 211 CLR 119 at 135; 192 ALR 217 at 224, at [24] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ; Gordon v Tolcher (2006) 231 CLR 334 at 348–9; 231 ALR 582 at 590, at [40]– [41] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ. See, for example, Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581; Chapman v Luminis Pty Ltd (1998) 86 FCR 513; Morlea Professional Services Pty Ltd v Richard Walter Pty Ltd (in liq) (1999) 96 FCR 217. See also Windsurf Holdings Pty Ltd v Leonard [2009] NSWCA 6 at [44]–[49] per Sackville AJA (applying s 79 to ‘pick up’ Queensland limitation statute in New South Wales state court exercising federal jurisdiction). 167. Matthews v ACP Publishing Pty Ltd (1998) 87 FCR 152 at 160 per Beaumont J. 168. Multi Modal Ltd v Polakow (1987) 78 ALR 553 at 560 per French J; McGarry v Boonah Clothing Pty Ltd (1988) 80 ALR 284; Re Inquiry, Election of Officers TWU (1990) 89 ALR 575; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 at 184–5; 201 ALR 1 at [73] per Kirby J. 169. Supetina Pty Ltd v Lombok Pty Ltd (1985) 5 FCR 439; 59 ALR 581; Arnotts Ltd v Trade Practices Commission (1990) 97 ALR 555, which are both decisions about the former business records provisions in Pt IIIA of the Evidence Act 1905 (Cth). 170. Commissioner of Stamp Duties (NSW) v Owens (No 2) (1953) 88 CLR 168 at 170. 171. See note 170 above; Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 593–4; 177 ALR 329 at 350, at [74] per Gleeson CJ, Gaudron and Gummow JJ; Solomons v District Court (NSW) (2002) 211 CLR 119; 192 ALR 217 (costs in criminal cases). 172. Pedersen v Young (1964) 110 CLR 162; Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136 at 143; 173 ALR 619 at 624, at [13] per Gleeson CJ, Gummow and Hayne JJ; British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30 at 60; 200 ALR 403 at 420, at [67] per McHugh, Gummow and Hayne JJ. 173. (1997) 190 CLR 1 at 140; 146 ALR 126 at 217 per Gaudron J. 174. (2001) 204 CLR 559 at 593–4; 177 ALR 329 at 350, at [74] per Gleeson CJ, Gaudron and Gummow JJ. 175. (2002) 211 CLR 119 at 135; 192 ALR 217 at 224, at [24] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ 176. (2000) 203 CLR 136 at 143; 173 ALR 619 at 624, at [13]. 177. (1999) 196 CLR 553; 161 ALR 318. 178. See note 177 above at CLR 575; ALR 327. 179. See note 178 above at CLR 606–8; ALR 352–4. 180. See note 173 above. 181. (1999) 196 CLR 553 at 650; 161 ALR 318 at 387. 182. Trade Practices Commission v Manfal Pty Ltd (1990) 97 ALR 231 at 243 per Wilcox J. 183. Bond Corp Pty Ltd v Thiess Contractors Pty Ltd (1987) 71 ALR 125 at 137–9 per French J. 184. Davis v Federal Commissioner of Taxation (1989) 86 ALR 195. 185. Northern Territory v GPAO (1999) 196 CLR 553 at 588, 606; 161 ALR 318; Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136 at 144; 173 ALR 619 per Gleeson CJ, Gummow and Hayne JJ.

186. HRX Holdings Pty Ltd v Pearson (2012) 205 FCR 169 at 179, at [44] per Buchanan J. 187. Ramsay v McElroy [2004] 1 Qd R 667. 188. Gordon v Tolcher (2006) 231 CLR 334; 231 ALR 582. 189. Bui v DPP (Cth) (2012) 244 CLR 638 at 660, 284 ALR 445 at 453, at [25] per French CJ, Gummow, Hayne, Kiefel and Bell JJ; Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Ltd (2012) 209 FCR 428; 295 ALR 129. 190. See Chapter 6 below. 191. Pozniak v Smith (1982) 151 CLR 38; Fielding v Doran (1984) 60 ALR 342; BHP Billiton Ltd v Schultz (2004) 221 CLR 400; 211 ALR 523. 192. For example, State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 154 CLR 579. See above notes 170–171. 193. Parker v Commonwealth (1965) 112 CLR 295. 194. Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334; Breavington v Godleman (1988) 169 CLR 41; 80 ALR 362; Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136; 173 ALR 619; Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; 177 ALR 329. 195. Broadbent v Medical Board of Queensland (2011) 195 FCR 438 at 462; 282 ALR 96 at 118–19, at [103] per Greenwood J. 196. Crouch v Commr for Railways (Qld) (1985) 159 CLR 22; Commr for Railways (Qld) v Peters (1991) 24 NSWLR 407; State Authorities Superannuation Board v Commissioner of State Taxation for the State of Western Australia (1996) 189 CLR 253; Sweedman v Transport Accident Commission (2006) 226 CLR 362; 224 ALR 625. 197. Judiciary Act 1903 (Cth) s 38(c), (d). 198. Including inferior courts such as the Liquor Licensing Court (SA): K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; 252 ALR 471. 199. As to the conditions of remittal, see the discussion at 5.3. 200. State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 154 CLR 579. 201. Bowtell v Commonwealth (1989) 86 ALR 31. 202. Judiciary Act 1903 (Cth) s 44(3)(a). 203. Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 264–6 per Gibbs CJ, Mason, Wilson, Deane and Dawson JJ. 204. (1997) 191 CLR 474; 146 ALR 299. 205. (2003) 218 CLR 330 at 336, 346; 203 ALR 189 at 192, 200, at [9], [43]. 206. (1991) 24 NSWLR 407 at 443 (Priestley and Waddell JJA; Kirby P dissenting). 207. Breavington v Godleman (1988) 169 CLR 41; 80 ALR 362. 208. Spratt v Hermes (1965) 114 CLR 226 at 241 per Barwick CJ. 209. Ling v Commonwealth (1996) 68 FCR 180 at 189 per Sundberg J (with whom Whitlam J agreed); Dinnison v Commonwealth (1997) 74 FCR 184 at 186 per Foster J. 210. See note 209 above. 211. Blunden v Commonwealth (2003) 218 CLR 330; 203 ALR 189. 212. Angus v Commonwealth (1962) 79 WN (NSW) 388; Ryan v Commonwealth (1967) 11 FLR 324.

213. Breavington v Godleman (1988) 169 CLR 41; 80 ALR 362. 214. (1967) 116 CLR 353 at 356. 215. See note 214 above at 355–6. 216. The view was not new; for earlier expressions, see Musgrave v Commonwealth (1937) 57 CLR 514 at 547–8 per Dixon J, at 550–1 per Evatt and McTiernan JJ; Washington v Commonwealth (1939) 39 SR (NSW) 133 at 143 per Jordan CJ. 217. (1988) 169 CLR 41; 80 ALR 362. 218. See note 217 above at 118. 219. See note 218 above at 152. 220. See note 219 above at 118. 221. (1997) 191 CLR 471 at 522–3. 222. (1997) 190 CLR 1 at 135. 223. (1997) 191 CLR 471 at 522–3. 224. See, for a detailed criticism of this view, M Pryles and P Hanks, Federal Conflict of Laws, Butterworths, Sydney, 1974, pp 196–9. See also Cook, ‘Section 78 Judiciary Act 1903—How Widely does it Travel?’ (1987) 17 Fed LR 199. 225. Maguire v Simpson (1977) 139 CLR 362. 226. (1988) 13 NSWLR 601 at 625–6. 227. (2003) 217 CLR 30 at 73; 200 ALR 403 at 431, at [110] per Kirby J.

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Chapter 6

Cross-Vested Jurisdiction 6.1 The cross-vesting scheme came into operation on 1 July 1988 when the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and equivalent legislation of the states and the Northern Territory1 commenced. Its function was two-fold: first, to vest subject-matter jurisdiction in federal, state and territory courts without detracting from the existing jurisdiction of any court; and, second, to provide for a system of transfer of proceedings to the appropriate court (within the confines of the scheme) in the polity.2

Constitutional Validity of the Scheme 6.2 The scheme operated smoothly and effectively until 1999, when the High Court held in Re Wakim; Ex parte McNally3 that a crucial part of the scheme, the cross-vesting of jurisdiction from state to federal courts, was unconstitutional.4 Wakim made it clear that federal courts could no longer exercise jurisdiction in ‘state matters’.5 The decision had the serious, if temporary, consequence that the Federal Court and the Family Court had no jurisdiction to hear many matters pending before them. More fundamentally, many cases decided by those courts between 1988 and 1999 had been decided per incuriam without jurisdiction. Those problems were remedied by state legislation, which validated ineffective judgments of the Federal Court and Family Court by declaring the rights and liabilities of all persons to be and always to have been the same as they would have been if the [page 127]

ineffective federal judgments had been valid State Supreme Court judgments.6 The constitutional validity of this remedial legislation was upheld by the majority of the High Court in Re Macks; Ex parte Saint.7 6.3 An issue of more enduring significance is whether the remainder of the scheme, which deals with cross-vesting between state and territory courts, continues to operate after Wakim. There are two questions. First of all, is the remainder of the scheme constitutionally valid? Second, if it is, can the constitutionally valid parts of the scheme be severed from the constitutionally invalid parts struck down by Wakim? 6.4 So far as the first question is concerned, the judgment of Gummow and Hayne JJ in Wakim gives some cause for doubt whether state parliaments have constitutional power to vest jurisdiction in the courts of other states, any more than they could vest the Federal Court with jurisdiction. Their Honours said:8 What gives courts the authority to decide a matter is the law of the polity of the courts concerned, not some attempted conferral of jurisdiction on those courts by the legislature of another polity. That is because of the very nature of judicial power as ‘the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property’. The authority to decide comes from the sovereign authority concerned, not from some other source.

6.5 Nevertheless, in the absence of a decision of the High Court to the contrary, it must be assumed that the part of the scheme that deals with cross-vesting of jurisdiction between the courts of the states and territories is constitutionally valid. No doubt was cast upon the constitutional validity of the scheme in the High Court’s subsequent decision in BHP Billiton Limited v Schultz.9 6.6 It is generally thought that the question of severability falls to be determined by reference to the intention of parliament. In Bell Group Ltd (in liq) v Westpac Banking Corp,10 Carr J of the Federal Court held that the constitutionally invalid parts of the Commonwealth Act could be severed from the remainder, saying: [P]arliament anticipated that the cross-vesting scheme might not operate as a whole, either for constitutional or other reasons. Section 16(4) provides a mechanism whereby the Governor-General, if satisfied that State Acts relating to cross-vesting of jurisdiction are not effective to confer jurisdiction on the Federal Court to declare, by Proclamation, that the Cross-vesting Act ceases to be in force. There is similar provision in s 16(5) where a particular State Cross-vesting Act has been repealed, rendered inoperative, suspended or altered in a substantial manner. It seems to me that such specific provision of a mechanism to deal with the consequences of partial validity is inconsistent with a supposed legislative intention that the Cross-vesting Act was intended to operate fully and completely according to its terms, or not at

[page 128] all. On the contrary, it seems clear that Parliament intended that, in the absence of a proclamation by the Governor-General, there was a likelihood, and an anticipation, that the Cross-vesting Act would operate in part … if this was acceptable to the Executive.

6.7 Subsections 16(4) and (5) appear in the state and territory Acts in the same form, so severability should work in the same way in relation to those Acts. In most states the position has been made clearer by legislation which repeals the constitutionally invalid parts of the Jurisdiction of Courts (Cross-vesting) Acts and makes other amendments consequential upon the decision in Wakim.11 6.8 Thus, notwithstanding the views of Gummow and Hayne JJ in Wakim, it can be assumed at present that much of the cross-vesting scheme survived the decision in Wakim. Of course, the High Court has not yet considered whether the remaining parts of the scheme are valid and severable. If they are, the following parts of the scheme remain in existence:12 the cross-vesting of the jurisdiction of the Federal Court and the Family Court of Australia in the Supreme Court of each state and territory; the cross-vesting of jurisdiction between the Supreme Courts of the States and territories (including the external territories); the cross-vesting of the jurisdiction of the Supreme Courts of the States and territories (including the external territories) in the State Family Court of Western Australia; the cross-vesting of the jurisdiction of the Supreme Courts of the territories (including the external territories) in the Federal Court and the Family Court of Australia.

6.9 Furthermore, it has repeatedly been held after Wakim that the venue-transfer provisions in s 5(4) of the Commonwealth Act continue to apply, so that proceedings within the jurisdiction of the Federal Court (including its accrued jurisdiction but not, of course, cross-vested jurisdiction) may be transferred from the Federal Court to the Supreme Court of a state.13 Indeed, the Commonwealth Parliament amended s 5(4) after Wakim,14 a course of action that would have been futile were it not still valid. Hence, subject to any future pronouncements by the High Court, it can be assumed that the entire venue-transfer part of the scheme survived Wakim, except for venue transfers from state or territory Supreme Courts to the Federal Court or Family Court in cases where the latter courts would not have original or accrued jurisdiction. [page 129]

6.10 Cross-vesting of jurisdiction in relation to matters arising under the Corporations legislation is no longer necessary since the enactment of the Corporations Act 2001 (Cth), which vests jurisdiction in federal and state courts directly, and which makes provision in s 1337H for the transfer of proceedings by the Federal Court or a State or Territory Supreme Court to another Court that has jurisdiction in a proceeding with respect to a civil matter arising under the Corporations legislation.15 Jurisdiction in and transfer of Corporations legislation matters are considered in Chapter 35.

Cross-Vesting as between States and Territories 6.11 By virtue of s 4(3) of the state Act, the Supreme Court of another state or of a territory has and may exercise original jurisdiction with respect to ‘state matters’. ‘States’ for these purposes include the Australian Capital Territory and the Northern Territory. ‘State matters’16 are defined in s 3(1) as matters ‘in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State’. The jurisdiction so conferred may be exercised by a State Supreme Court under s 9 of the state Act. Likewise, s 4(2) of the federal Act confers upon the Supreme Court of a state and of another territory the jurisdiction of the Supreme Court of a territory (other than the Australian Capital Territory and the Northern Territory) with respect to civil matters. Section 3(3) extends the operation of the Act to all external territories. The jurisdiction conferred by the federal Act or by the state Acts may be exercised by the Supreme Court of a territory under s 9(2) of the federal Act. The cross-vesting scheme only invests the Supreme Courts of other states and territories with substantive jurisdiction. Service of process on defendants in other Australian jurisdictions must be effected under the Service and Execution of Process Act 1992 (Cth).17 6.12 An interesting question is whether a court is bound to exercise crossvested jurisdiction at the instance of the plaintiff. In Bond Brewing Holdings Ltd v Crawford18 an application was made in the Supreme Court of Western Australia to set aside certain orders made ex parte by a judge of the Supreme Court of Victoria. It was argued that this could be done by the Western Australian court exercising the cross-vested jurisdiction of the Victorian court. There was no application made for a transfer of the proceedings to Victoria. Ipp J declined to exercise the jurisdiction on the ground that it was not the intention of

the legislature that cross-vested jurisdiction [page 130] be exercised ‘willy-nilly’ by the courts of other states.19 However, a contrary view was taken by McLelland J in the Supreme Court of New South Wales in respect of s 42 of the Corporations Acts, which cross-vested State Supreme Courts with jurisdiction under the Corporations Law. His Honour held in Re Tolltreck Systems Ltd20 that he had only two options: to exercise the jurisdiction or to transfer the proceedings under s 44 of the Corporations Acts. The proper view may well be that a court is not bound to accept cross-vested jurisdiction, even if neither party objects. But if it wishes to decline jurisdiction in such a case, it must transfer the proceeding under s 5(2) on its own motion to the more appropriate court.

Transfer of Proceedings Under the CrossVesting Scheme 6.13 Provision is made for the transfer of proceedings from one Supreme Court to another in s 5(2) of the federal, state and territory Acts21 It provides that such a transfer shall22 be ordered where it appears to the court in which the proceeding is pending: (i)

the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court;

(ii) having regard to — (a) whether, in the opinion of the first court, apart from this Act and any law of a State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory; (b) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subsubparagraph (A) and not

[page 131]

within the jurisdiction of the first court apart from this Act and any law of a State relating to cross-vesting of jurisdiction; and (c) the interests of justice, it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory.

6.14 A court may under s 5(7) transfer a proceeding on the application of a party, on its own motion, or on the application of the Attorney-General of the Commonwealth, a state or a territory. This may cover the whole of the proceedings pending between the parties, or merely a discrete proceeding, such as a cross-action or counter-claim.23 But the court cannot transfer a specific issue, such as the assessment of damages or the determination of liability, which is part of a proceeding.24 A Supreme Court of a state to which a proceeding is transferred under s 5(2) is invested with jurisdiction to hear and determine the transferred proceeding by s 9(b) of that state’s Cross-vesting Act. 6.15 Under s 13(a), no appeal lies from a decision in relation to the transfer of a proceeding or the reasoning founding that decision.25 In Bell Group Ltd (in liq) v Westpac Banking Corp,26 Carr J of the Federal Court held that s 13 is constitutionally valid as an exception to the rule stated by s 73(ii) of the Constitution, that the High Court has jurisdiction to hear and determine appeals from any federal court. Section 73(ii) provides for appeal to the High Court ‘with such exceptions and subject to such regulations as the Parliament prescribes’, and s 13 of the Commonwealth Act prescribes just such an exception. Thus, there can be no appeal to the High Court from a venue-transfer decision made by the Federal Court. There can be no doubt that there is no appeal from the Federal Court to the Full Federal Court,27 nor, by parity of reasoning, from a state or territory Supreme Court to the appellate court in that jurisdiction.28 6.16 There may, however, be an appeal (subject to the grant of special leave) from a state Supreme Court direct to the High Court as s 13 of the state Act is incapable of [page 132] impairing or qualifying s 73(ii) of the Constitution. BHP Billiton Limited v

Schultz29 is an example of just such an appeal from the Supreme Court of New South Wales.30 6.17 It may be noted that paragraphs (i) and (iii) of s 5(2) are not limited to the transfer of cross-vested jurisdiction. Any proceeding pending in a Supreme Court can be transferred even where jurisdiction is based on service of the defendant within the jurisdiction. 6.18 The principles to be applied in determining whether a proceeding should be transferred may vary depending on which of the three categories specified in s 5(2) the relevant proceeding falls within. Since they clearly overlap, with the third category covering all possible cases, it may be necessary to apply several tests.

Related proceedings: s 5(2)(i) 6.19 The first category deals with the situation where proceedings between the same parties or concerning the same subject matter are pending in different superior courts. The proceeding to be transferred must ‘arise out of’ or be ‘related to’ the other proceeding. These are words of broad ambit although their content will be informed by their particular statutory context.31 The first requirement was interpreted by Beaumont J in Re Hamilton-Irvine32 as requiring some causal element even if not direct or proximate, the latter as requiring a degree of association or connection. The vagueness of these tests leaves a fair amount of discretion: in Re Hamilton-Irvine his Honour saw no causality or nexus between an application by a husband for leave to act as a director of a company despite conviction for certain offences under the Companies Act and property proceedings in the Family Court between him and his wife, who was a major shareholder in that company. Similarly in Leithead v Leithead33 Murray J of the Supreme Court of Western Australia saw no causality or connection between proceedings on property issues between a de facto couple and proceedings pending in the Family Court for the maintenance of their child. In contrast, in Bell Group Ltd (in liq) v Westpac Banking Corp,34 Carr J of the Federal Court saw (with some reservations) sufficient causal link between an application made by companies in the Federal Court claiming that some of their former directors had wrongly caused them to execute securities at a time when they were insolvent, and proceedings pending in the Supreme Court of Western Australia for the winding up of the same companies. 6.20 Provided that the necessary causality or connection can be established,

there seems to be little doubt that the decision to transfer should depend on a determination of which court is more appropriate without giving any specific weight to the choice [page 133] of forum by the plaintiff.35 The strength (or otherwise) of the relationship between the two sets of proceedings may be relevant to the transfer decision, as may be the relative stages which each set of proceedings has reached; the fact that a transfer may cause dislocation or delay to the other set of proceedings may militate against a transfer.36 It has recently been held to be legitimate to serve proceedings abroad on a foreign defendant using the Federal Court’s long-arm jurisdiction37 and then to seek to have those proceedings transferred under the cross-vesting legislation to a State Supreme Court where related proceedings are pending even though the State Supreme Court’s long-arm jurisdiction would or may not have permitted jurisdiction to be asserted and exercised against the foreign defendant.38

Exercise of cross-vested jurisdiction: s 5(2)(ii) 6.21 This category covers the situation where the jurisdiction of the court in which the proceeding sought to be transferred, or a substantial part of it, has been commenced, is cross-vested jurisdiction; that is to say, jurisdiction that the forum can only exercise because of the cross-vesting legislation. Thus, the category does not apply where the forum can exercise the jurisdiction, although not belonging to its ‘proper sphere’, by reason of its accrued or inherent jurisdiction.39 6.22 The test laid down in this category is in effect four-fold: the first question is whether the jurisdiction of the forum arises solely by reason of cross-vesting; the second question is whether the determination of the proceeding will involve the application, interpretation or validity of the statute law of another state or territory; and the third refers to the interests of justice. Having regard to all these factors the court must then consider whether it is more appropriate to transfer the proceeding to its proper court. 6.23 In the case of the Federal Court and the Family Court, the test is now fivefold as a result of amendments made to s 5(4) in 2000.40 The amendments were

necessary because it no longer makes sense, after Wakim, to speak of the Federal Court and the Family Court having jurisdiction solely by reason of state crossvesting legislation. In such a case the relevant federal court would have no jurisdiction at all and would have to refuse the case. Thus, s 5(4) of the Commonwealth Act now applies only in the remaining category of cases where there can be cross-vesting of jurisdiction to the federal courts, namely where the relevant federal court has jurisdiction cross-vested from a territory court, and would not otherwise have jurisdiction. In such a case, the second question then becomes whether the proceeding could have been instituted in the Supreme Court of a state or territory in the absence of cross-vesting—in other words, whether there is a state or territory court that has original jurisdiction under [page 134] its own rules. If that second criterion is also satisfied, the remaining three factors are the same as in the case of interstate (or interterritory) cross-vesting. 6.24 The New South Wales Court of Appeal considered the principles to be applied under s 5(2)(i) and (ii) in Bankinvest AG v Seabrook.41 They were enunciated by Rogers AJA with the concurrence of Street CJ, Kirby P concurring in the result but not expressing a view on several important issues. Rogers AJA rejected the argument of the plaintiff based on the High Court decision in Oceanic Sun Line Special Shipping Co Inc v Fay42 that the plaintiff’s choice of forum was to be respected unless the defendant could establish that the court in which the proceedings were presently located could not give the parties all the relief required. His Honour read in the use by the parliaments of the words ‘more appropriate’ in s 5(2)(i) and (ii) and especially in the Preamble, an indication that a test akin to that developed by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd43 should be applied; namely, a search for the more appropriate forum in which the case may be tried more suitably for the interests of all the parties and the ends of justice.44 In this context it was not proper to speak of an onus on the defendant to justify a transfer. The correctness of the approach enunciated by Robers AJA in Bankinvest was endorsed by the High Court in BHP Billiton Limited v Schultz,45 albeit in the context of s 5(2)(iii) of the Act. 6.25 In Bankinvest the choice lay between New South Wales and Queensland. All three members of the Court of Appeal agreed that the proceeding should be transferred to Queensland because its law was the agreed law under the relevant

contracts, the preponderant number of parties and witnesses resided there and related proceedings were pending there. Furthermore, the Queensland defendants wished to apply under s 4 of the Money Lenders Act 1916 (Qld) for the reopening of aspects of the contract, a power which the Supreme Court of New South Wales could only exercise by reason of cross-vested jurisdiction. 6.26 The approach indicated by the Court of Appeal has generally been followed in subparagraph (ii) cases. Indeed, it can be said that, other than in exceptional circumstances, courts will transfer proceedings to the court to which that proceeding normally belongs, especially where all the matters raised in the proceeding are within the proper jurisdiction of the other court.46 If the proceedings in the forum fall partly within the proper jurisdiction of the forum and partly within the proper jurisdiction of another superior court, the proceeding will be retained or transferred depending on which court has the most substantial connection with the proceedings as a whole.47 [page 135]

Transfer in the interests of justice: s 5(2)(iii) 6.27 This is a residual provision, which covers but also goes beyond the two categories previously discussed. It is of particular relevance in cases where a defendant served under the Service and Execution of Process Act 1992 (Cth) with process in a claim based on the common law seeks a transfer of those proceedings to another superior court.48 If there are no related proceedings pending in the court of the defendant’s choice and no claim arises out of the written law of another state or territory, the third category is the only one available to the defendant. 6.28 Section 5(2)(iii) does not use the words ‘more appropriate’ but refers only to the ‘interests of justice’ which is also one of the three considerations in s 5(2) (ii). It was essential to the reasoning of Rogers AJA in Bankinvest that those words should not be given a more restricted interpretation than ‘more appropriate’49 and the High Court has held that the phrase ‘the interests of justice’ requires the Supreme Court to determine a transfer application by identifying the more appropriate forum without any specific emphasis in favour of the choice of forum made by the plaintiff.50 An excellent summary of the relevant principles applicable to s 5(2)(iii) is provided in Irwin v Queensland.51

6.29 An earlier view, which had found favour in the Supreme Court of Western Australia—namely, that under s 5(2)(iii), the court must start from the premise that the plaintiff’s choice of forum is to be respected and that it was only if the chosen forum was ‘clearly inappropriate’ in the Voth v Manildra Flour Mills Ltd52 sense that a transfer would be ordered—can no longer be considered to be good law.53 6.30 The ‘interests of justice’ will not necessarily be co-extensive with the interests of the parties or co-incident with the natural forum;54 wider interests may be engaged such as the efficient and economical disposition of a dispute, which will be in the public interest.55 Certain ‘party’ interests may cancel each other out, such as the place of residence of the parties, although in other circumstances the personal position of one party, such as an individual in the advanced stage of terminal illness or one for whom travel is impossible or who is otherwise indigent,56 or a child57 may point in one direction and be important in identifying the more appropriate forum [page 136] or where the interests of justice lie. In this context it has been said that the ‘justice’ referred to in s 5(2) of the Act is not ‘disembodied or divorced from practical reality’.58 Practical considerations such as the manner in which evidence may be taken and the level of expertise and expedition that will be accorded particular types of proceedings will be relevant, a matter that, notwithstanding the decision of the High Court in BHP Billiton Ltd v Schultz,59 has seen the Supreme Court of New South Wales decline to transfer proceedings originally commenced in the Dust Diseases Tribunal of that state to the Supreme Courts of other states.60 In this context, there remains an important, arguably unresolved question whether s 25(3) of the Dust Diseases Tribunal Act 1989 (NSW) is procedural or substantive. This section permits historical and general medical evidence concerning dust exposure and dust disease admitted in previous proceedings to be received as evidence.61 6.31 The ‘interests of justice’ must also be assessed by reference to the real issues in dispute,62 and by reference to the entirety of the dispute, including any third-party cross claims, including potential cross claims. The ‘interests of justice’ are also ‘even-handed’63 such that the fact that the plaintiff would enjoy some procedural or substantive advantage in the initial court and not in the court

to which transfer is sought is not a relevant consideration to be taken into account in the ‘interests of justice’.64 6.32 Where the parties’ dispute is contractual in nature, it may be that the contract contains a jurisdiction clause for another state or territory. In principle, a non-exclusive jurisdiction or forum clause, or a submission to such clause, signifies only that the parties are amenable, and will submit to, suit in that forum. As such, it should not be a factor of any great significance in a crossvesting application other than perhaps only in a negative sense of precluding one party from questioning the appropriateness of the nominated forum. When coupled (as will often be the case) with a governing law clause stipulating the law of the same (non-exclusive) jurisdiction, the balance is likely to be tipped further in favour of transfer, especially if any non-uniform State statutes are likely to be engaged in the litigation.65 The position where the clause in question is exclusive, constituting an express choice for one forum over that of another, is more problematic. At common law, strong reasons are required if such a clause is not to be enforced, and there is a ‘strong bias’ towards upholding such agreements.66 In the cross-vesting context, some judges [page 137] have held that the existence of such a clause was a ‘very significant’ factor67 to which ‘substantial weight’ should be given.68 In Slater & Gordon Pty Ltd v Porteous,69 such a clause was described as ‘overwhelmingly’ significant. These views have been expressed on the footing that, given that the s 5(2)(iii) inquiry is concerned with the interests of justice, that goal accords with holding parties to their bargain. A slightly more open-ended approach was manifested in World Firefighters Games Brisbane v World Firefighting Games Western Australia Incorporated70 where it was held that, whilst an exclusive jurisdiction clause remains a relevant factor, the court on a cross-vesting application should not start from the position that there should be a ‘strong bias’ towards giving effect to such clauses; rather the weight will vary depending on other surrounding and countervailing circumstances with the statutory criterion of the ‘interests of justice’ remaining the ultimate test for a transfer. It follows from this approach that, in theory at least, there is no reason why proceedings could not be transferred even if commenced in a court to the jurisdiction of which the parties agreed exclusively

to submit provided that the interests of justice so required.71 Of course it is axiomatic that, for an exclusive jurisdiction clause to be relevant on a crossvesting application, it must be valid and the dispute in question must fall within its scope.72 6.33 Another relevant factor may be that the case involves or requires consideration of a detailed legislative scheme, particularly where it is peculiar to the state to which it is sought to transfer proceedings.73 But such a consideration is not decisive.74 Nor is the fact that the issues in the proceedings are governed by the law of a particular state, either by reason of the fact that, in a tort case, that is where the tortious conduct occurred or, in a contract case, the parties have chosen the law of a particular forum. As there is only one common law of Australia, where no state legislation overlaps its operation, the significance of the applicable law is greatly diminished.

The Question of Onus 6.34 In Bankinvest Rogers AJA took the view that there was no onus on either party in the search for the more appropriate forum.75 In James Hardie & Co Pty Ltd v Barry,76 the New South Wales Court of Appeal unanimously resiled from the proposition that there is no onus, saying that this makes sense only when transfer is [page 138] ordered on the court’s own motion. The court said that, when there is a contested application made by one of the parties, it is natural to regard the applicant for transfer as carrying at least a persuasive onus.77 In BHP Billiton Limited v Schultz,78 however, Gummow J, with whom Hayne J agreed, observed, consistent with the analysis of Rogers AJA in Bankinvest, that it was inapt to speak of the applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof. This question has continued to generate debate, particularly in Victoria.79

Choice of Law in Cross-Vested Jurisdiction

6.35 Specific provision is made in respect of choice of law in the exercise of cross-vested jurisdiction. Section 11(1) of the federal and state legislation80 provides: Where it appears to a court that the court will, or will be likely to, in determining a matter for determination in a proceeding, be exercising jurisdiction conferred by this Act or by a law of a State relating to cross-vesting of jurisdiction: (a) subject to paragraphs (b) and (c), the court shall, in determining that matter, apply the law in force in the State or territory in which the court is sitting (including choice of law rules); (b) subject to paragraph (c), if that matter is a right of action arising under a written law of another State or territory, the court shall in determining that matter, apply the written and unwritten law of that other State or territory; and (c) the rules of evidence and procedure to be applied in dealing with that matter shall be such as the court considers appropriate in the circumstances, being rules that are applied in a superior court in Australia or in an external territory.

The three choice-of-law rules The first rule: s 11(1)(a) 6.36 The first paragraph lays down the basic rule. It is the same rule the court would apply under ss 79 and 80 of the Judiciary Act 1903 (Cth), if it were exercising federal jurisdiction. Needless to say, it is also the same rule as it would apply in the exercise of its own jurisdiction. It means that the court in the exercise of cross-vested jurisdiction does not behave as if it were the court whose jurisdiction it has assumed, sitting on circuit. It applies its own law unless the second or third rules are applicable.81 But the reference presupposes the existence of the choice-of-law rules of the forum. Those rules determine whether the law of the forum or of some other place is applicable.82 [page 139] 6.37 Section 11(2) of the federal Act elucidates the meaning of the place of sitting, in relation to the Federal Court or the Family Court, as the place ‘in which any matter for determination in the proceeding was first commenced in or transferred to that court’. Section 11(3) provides that upon transfer ‘the transferee court shall deal with the proceeding as if, subject to any order of the transferee court, the steps that had been taken for the purposes of the proceedings in the transferor court (including the making of an order), or similar

steps, had been taken in the transferee court’. 6.38 This means that upon transfer of the proceeding the procedural law of the new forum becomes applicable, unless that court otherwise orders, and existing pleadings have to be adjusted to those of the new venue,83 although they continue to have the effect they had in the transferor court even if they would not have had that effect in the transferee court.84

The second rule: s 11(1)(b) 6.39 The second rule provides that if a matter is a right of action arising under a written law of another state or territory, the court shall, in determining that matter, apply the written and unwritten law of that other state or territory. It can be assumed that this includes any relevant choice-of-law rules.85 The ‘written law’ of a state obviously includes its statutes and subordinate legislation, but also, it is submitted, English statutes that form part of its inherited law. 6.40 This is a radical departure from the choice-of-law rules that would normally be applicable. Under the common law rules a right of action arising under the written law of another part of Australia will only be relevant if made applicable by the law of the forum. Under s 11(1)(b) such a right of action will be applicable if a party relies on it and it applies to the situation before the court on its own terms. 6.41 This may be illustrated by reference to the fact situation before Hunt CJ at common law of the Supreme Court of New South Wales in the much litigated case of Waterhouse v Australian Broadcasting Corporation.86 In that case the plaintiff had commenced proceedings for defamation in the Supreme Court of the Australian Capital Territory alleging to have been defamed by the defendant throughout Australia. The proceeding was transferred to the Supreme Court of New South Wales pursuant to s 5(2) of the cross-vesting legislation.87 According to his Honour, this meant that the New South Wales court was exercising crossvested jurisdiction. The [page 140] law of defamation is codified in Queensland88 and Tasmania.89 In the other states the law is based on the common law, though amended by statute.

6.42 Hunt CJ held that, in so far as the plaintiff asserted a right of action in defamation based on Queensland and Tasmanian law, the second rule applied and only the law of the state concerned was applicable to the exclusion of the law of New South Wales. The defendant could therefore only plead such defences as were open to it under the law of that state. As regards any right of action arising out of the common law in the other Australian jurisdictions, the first rule applied. Starting with the common law rule then applicable in New South Wales to interstate torts, the plaintiff could only succeed if he could establish that the defendant was civilly liable to him under the laws of both New South Wales and the place of the publication complained of.90 Consequently the defendant could plead to that part of the action any defences open to it under both the law of New South Wales and the other jurisdiction.91 6.43 It is obvious from the above recital that the application of the second rule is fraught with difficulties. It can be assumed that the reference to the ‘written law’ relates to statutory enactments and subordinate legislation, as well as any English statutes which may form part of the inherited law, and that ‘unwritten law’ refers to the common law.92 But it is not certain when a claim arises out of the written law of a state. Certainly a claim asserting a statutory cause of action such as a claim for compensation under the Compensation to Relatives Act 1897 (NSW) would arise out of the written law of New South Wales.93 So would an application by a defendant to an action for breach of contract for relief from the provisions of that contract under the Contracts Review Act 1980 (NSW).94 But on the narrower view paragraph (b) only applies to a right of action; a statutory defence will not qualify. 6.44 Gummow J on the other hand in obiter remarks made in David Syme & Co v Grey95 has suggested that the words have a wider operation, including: (i) an action which depends upon the written law for its enforcement even though not wholly owing its existence to the written law, and (ii) an action in which the defence against a common law liability or obligation is provided by the written law so that the determination of the action depends upon the operation of the written law, that law being the source of an alleged immunity to the liability or obligation alleged against the defendant …

6.45 The first part of the definition is not controversial: where, as under the Defamation Act 1974 (NSW) the right of action is largely defined by statute, it can [page 141]

be described as ‘arising under a written law’, even if gaps remain to be filled in by the common law. But his second proposition can give the second rule a wider operation than has hitherto been assumed. 6.46 It is clear that Hunt CJ in Waterhouse followed the narrower view when he ruled that the first rule applied where the action for defamation arose out of the common law even though that law had been amended by statute by creating or defining defences to actions in defamation. But, if Gummow J is correct, an action in defamation which can be met by a statutory defence or even by a statute of limitations would bring the action within the operation of the second rule. Following his Honour’s remarks, the Australian Law Reform Commission has recommended that the uniform choice of law rules proposed by it apply to state, federal and cross-vested jurisdiction alike.96 6.47 If a court is applying the written law of another state, it must also apply its unwritten law. That means in the first place that the forum should follow the precedents set by the court whose jurisdiction it is exercising.97 It also means that the forum can expand the rights given under the interstate statute, if the common law of that state permits further claims, such as punitive damages.98 6.48 A problem may arise, however, if the court exercising cross-vested jurisdiction has not observed the entire law of the original jurisdiction. This arose in Re An Alleged Incapable Person FCC and the Protected Estates Act 198399 where the Supreme Court of Queensland had purported to exercise crossvested jurisdiction under s 13 of the Protected Estates Act 1983 (NSW) in the course of Queensland litigation arising out of a motor accident which had left the plaintiff mentally incapable. Since the plaintiff could not administer the verdict moneys himself and was resident in New South Wales, the Queensland judge had appointed the New South Wales Protective Commissioner as the administrator. Powell J sitting in the Supreme Court of New South Wales refused to give effect to the order on the ground that it had been made without conducting a formal inquiry into the mental capacity of the plaintiff in proceedings to which the plaintiff was a respondent as required by the written and unwritten law of New South Wales. While his Honour was undoubtedly correct in criticising the procedure of the Queensland court,100 it is very much open to question whether the court of another state, even if it is the state whose jurisdiction has been assumed by cross-vesting, can go behind the judgment.

The third rule: s 11(1)(c)

6.49 The third rule is equally as unorthodox as the second. The normal rule in relation to evidence and procedure is that the lex fori governs. Paragraph (c) replaces that rule in all circumstances where cross-vested jurisdiction is exercised [page 142] or likely to be exercised by allowing the court to apply such rules of any state or territory ‘as the court considers appropriate in the circumstances’. 6.50 The word ‘appropriate’ can have two meanings in this context. It may mean that the legal system from which the rule is taken should have some relevance to the matter at hand; for example, because it is the law of the place where the relevant events giving rise to the cause of action took place.101 The other interpretation is the ‘better law’ approach, that the court may choose the rules from any Australian jurisdiction however remote from the matter at hand, because it considers those rules to be more up to date or more advantageous to a particular party.102 Hence, a New South Wales court in a matter cross-vested from Victoria might apply the Queensland discount rule as to damages because it is fairer to the defendant, or vice versa.103 The former view is more likely to be followed. Whatever the right approach, the court will have an unfettered discretion since, under s 13(b) of the Act, no appeal can lie from its choice (other than an appeal to the High Court from a state Supreme Court).104 6.51 A court exercising cross-vested jurisdiction may apply some of its own evidence and procedure rules and some from another jurisdiction. Thus, if proceedings are transferred from one court to another under s 5, the transferee court may choose to apply only some aspects of its own rules of evidence and procedure, picking up some from the transferor jurisdiction; it is not obliged to apply all of the evidence and procedure rules of one or other of the jurisdictions.105

When does a court exercise cross-vested jurisdiction? 6.52 Section 11 applies when it appears to a court that it will be, or is likely to be exercising cross-vested jurisdiction. Given that cross-vested jurisdiction embraces only jurisdiction as to subject matter,106 cross-vested jurisdiction is likely to be exercised in two situations:

[page 143] (a) where a party raises a right of action under the written law of another State or territory which would not have been applicable under the choice of law rules of the forum;107 and (b) where a proceeding, whether originally lying in the cross-vested jurisdiction or not, is transferred pursuant to s 5(2) of the cross-vesting legislation.108 However, if a federal court transfers a proceeding to a State court in respect of a matter over which the transferee court would have jurisdiction by reason of a provision other than cross-vesting, the latter court will not be exercising cross-vested jurisdiction.109

6.53 It is obvious that the various heads of jurisdiction may overlap. A state or territorial Supreme Court may exercise jurisdiction over interstate defendants under Pt 2 of the Service and Execution of Process Act 1992 (Cth). It may hear and determine a right of action arising under interstate law by reason of the choice of law rules of the forum. It may exercise federal jurisdiction by reason of s 39(2) of the Judiciary Act 1903 (Cth) or other specific legislation. The Federal Court may exercise jurisdiction in respect of state and territorial matters in its accrued and associated jurisdictions. In those situations s 11 would on a literal reading not be applicable. What happens if a party sought to invoke both crossvested and other jurisdiction in the same proceeding, as could have happened in Bankinvest AG v Seabrook? Will there be a conflict of choice-of-law rules? 6.54 The problem is compounded by an apparent asymmetry in the state and federal legislation. By s 4 of the state cross-vesting legislation jurisdiction in state matters is conferred upon the Supreme Courts of the other states and territories. ‘State matter’ is defined in s 3(1) of the cross-vesting legislation as a matter ‘in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State’; that is, the whole of the jurisdiction of the state Supreme Courts derived from the common law, inherited English law or local statute. The court so invested when asked to exercise jurisdiction over a defendant served in another part of Australia has a choice between exercising its own jurisdiction or that cross-vested upon it. 6.55 In contrast s 4(1) and (2) of the Federal Act confers upon state Supreme Courts (including the Supreme Courts of the Australian Capital Territory and the Northern Territory) only such of the jurisdiction of the Federal, Family and nonself-governing territory Supreme Courts as the court invested would not have had ‘apart from this section’. This means that a state Supreme Court cannot begin to exercise cross-vested federal jurisdiction until it has first exhausted its jurisdiction derived from other sources including other statutes investing it with federal jurisdiction.110

[page 144] 6.56 If the state Supreme Court has jurisdiction from other sources with respect to the subject matter of the federal proceeding, s 11 will not be applicable.111 If the state court has a proceeding transferred to it from another state court or otherwise exercises cross-vested state jurisdiction, it is possible that both its own and the cross-vested jurisdiction overlap. In that case, there is a problem since, as we have seen, the effect of s 11 may differ from that of the ‘ordinary’ choiceof-law rules. 6.57 Kelly and Crawford in their article put forward three possible solutions.112 The first is to apply s 11 as the mandatory rule in all situations where the crossvested and other jurisdiction overlap. This would mean that even if the court had non cross-vested jurisdiction in respect of the subject matter, s 11 would be applicable. 6.58 The second solution which Kelly and Crawford favour is to read the legislation down so as to reach the same effect as the federal and territorial investment of jurisdiction, namely that s 11 has no application where the jurisdiction of the court can be based other than on the cross-vesting legislation.113 This will avoid overlapping but it ignores the asymmetry in state and federal legislation. 6.59 The third solution is to give concurrent operation to cross-vested and other jurisdiction. This would permit the concurrent operation of s 11 and the ‘ordinary’ choice-of-law rules, including ss 79 and 80 of the Judiciary Act 1903 (Cth) in appropriate cases. If they produced different results, a party seeking to have a particular state or territory law apply to his or her claim, could rely upon such rule as produced that effect. This solution is favoured by Griffith, Rose and Gageler in their reply to Kelly and Crawford.114 6.60 The first two solutions have the advantage that the operation of s 11 and the ‘ordinary’ choice-of-law rules would be mutually exclusive. The third solution could produce a conflict of choice-of-law rules. 6.61 The first solution is rightly rejected by Kelly and Crawford.115 It is not the purpose of the cross-vesting legislation to replace the existing jurisdiction of the state and territorial courts but to expand it. It would also lead to difficult questions of determining when a court was exercising cross-vested jurisdiction, for instance, in causes of action arising in another part of Australia. The purpose of the scheme was to avoid such agonising issues.

6.62 The answer lies somewhere between the second and third solutions. It is well established that a party may seek a particular result favourable to him or her by several means. If he or she fails in one way, that will not preclude reliance upon another. Thus, as the majority of the High Court pointed out in Flaherty v Girgis,116 prior to the commencement of the Service and Execution of Process Act 1992 (Cth) a writ could be endorsed for service out of the jurisdiction both under the state rules and under federal law. If a plaintiff failed in the one, he or she might succeed on the other. [page 145] 6.63 Thus, nothing would prevent a party from seeking to invoke both crossvested and ordinary jurisdiction in the same action. In Waterhouse v Australian Broadcasting Corporation the plaintiff, if he had commenced his action in the Supreme Court of New South Wales and served the defendant in that state, could have relied on the choice-of-law rules of the forum in so far as it made the laws of Tasmania and Queensland applicable, and, at the same time pleaded a cause of action arising under the codified laws of those states by way of cross-vested jurisdiction. The outcome on each approach would be different: in so far as the plaintiff relied on the ordinary jurisdiction of the forum, the defendant could plead any defences available under the law of New South Wales, but in so far as the plaintiff relied on the cross-vested jurisdiction of Tasmania and Queensland, only those laws would be relevant.117 6.64 The anomaly between state and federal investment of jurisdiction means that a party may not have that option available if he or she seeks to assert a federal or territorial right already within the jurisdiction of a state or territorial court. This may be reason for amending the legislation, but not for reading it down. 6.65 Ultimately it will depend how the claimant pleads the case. If the case is pleaded in such a way that cross-vested jurisdiction is not invoked, s 11 will have no application even though the alternative of cross-vesting was available. But if a party puts forward claims under both original and cross-vested jurisdiction, each claim raised must then be determined according to the choiceof-law rule applicable to it. _________________________ 1.

Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT); Jurisdiction of Courts (Cross-vesting) Act 1987

(NT); Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW); Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld); Jurisdiction of Courts (Cross-vesting) Act 1987 (SA); Jurisdiction of Courts (Crossvesting) Act 1987 (Tas); Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic); Jurisdiction of Courts (Cross-vesting) Act 1987 (WA). The Australian Capital Territory was initially covered by the Commonwealth Act. Since the numbering and the content of the sections is basically the same, reference hereafter to ‘the state Act’ will be a reference to each of the above statutes. 2.

BHP Billiton Limited v Schultz (2004) 221 CLR 400 at 430–1 per Gummow J. The scheme is not concerned with jurisdiction in the sense of the amenability of the defendant to a particular court’s jurisdiction. It assumes the existence of ‘personal’ jurisdiction over the defendant.

3.

(1999) 198 CLR 511.

4.

In Gould v Brown (1998) 193 CLR 346, the High Court had been evenly divided, three to three, on the same point, so the scheme survived another year by the skin of its teeth.

5.

Cf. the exercise of jurisdiction over transferred matters that fall within the accrued jurisdiction of the Federal Court of Australia: Jackson v Mylan (2012) 263 FLR 148.

6.

Federal Courts (State Jurisdiction) Act 1999 (NSW) s 6; Federal Courts (State Jurisdiction) Act 1999 (Qld) s 6; Federal Courts (State Jurisdiction) Act 1999 (SA) s 6; Federal Courts (State Jurisdiction) Act 1999 (Tas) s 6; Federal Courts (State Jurisdiction) Act 1999 (Vic) s 6; Federal Courts (State Jurisdiction) Act 1999 (WA) s 6.

7.

(2000) 204 CLR 158 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, Kirby J dissenting.

8.

(1999) 198 CLR 511 at [108].

9.

(2004) 221 CLR 400.

10. (2000) 104 FCR 305 at 341. 11. See Federal Courts (Consequential Amendments) Act 2000 (NSW) s 3 Sch 1 1.6[1]; Federal Courts (Consequential Amendments) Act 2001 (Qld) s 39; Federal Courts (Consequential Amendments) Act 2001 (Tas) s 34; Federal Courts (Consequential Amendments) Act 2000 (Vic) s 24. 12. Bell Group Ltd (in liq) v Westpac Banking Corp (2000) 104 FCR 305 at 341–2 per Carr J. Carr J also referred to cross-vesting of jurisdiction under the Corporations Act 1989 (Cth), but that is no longer necessary under the scheme implemented by the Corporations Act 2001 (Cth): see Chapter 37. 13. Crandell v Servier Laboratories (Aust) Pty Ltd [1999] FCA 1461 at [5]–[6] per Sackville J; Overall v Permanent Trustee Co Ltd [1999] FCA 1385; Delta Car Rentals Australia Pty Ltd v Bamco Villa Pty Ltd [2000] FCA 72 at [13] per Heerey J; Bell Group Ltd (in liq) v Westpac Banking Corp (2000) 104 FCR 305 at 341 per Carr J; Johnson Tiles Pty Ltd v Esso Australia Ltd [2001] FCA 421. The same should apply to the transfer of matters from the Family Court to State Supreme Courts: see Friis v Friis (2000) 26 Fam LR 205 at 210–11 per McPherson JA (Qld CA). 14. By the Jurisdiction of Courts Legislation Amendment Act 2000 (Cth) Sch 1, para 61. 15. See, for example, Efax Pty Ltd v Sonray Capital Markets Pty Ltd (in liq) (2011) 84 ACSR 195; Pat v Yindjibarndi Aboriginal Corporation RNTBC (No 2) [2012] WASC 491. 16. In the case of the Australian Capital Territory ‘ACT matters’, and in the Northern Territory ‘Northern Territory matters’. 17. David Syme & Co Ltd v Grey (1992) 115 ALR 247 at 254 per Neaves J, at 275 per Gummow J, Higgins J not expressing any opinion. The view expressed to the contrary by Rogers CJ CommD in SeymourSmith v The Electricity Trust of South Australia (1989) 17 NSWLR 648 at 659–60 cannot now be sustained. 18. (1989) 1 WAR 517.

19. See note 18 above at 522. 20. (1991) 4 ACSR 701. 21. In New South Wales, neither the Industrial Relations Commission in Court Session nor the Dust Diseases Tribunal can transfer proceedings to the Supreme Court of another state or territory, despite the fact that they have many of the powers of the Supreme Court. The transfer jurisdiction can only be exercised by the Supreme Court of New South Wales. See James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 357; Resarta Pty Ltd v Finemore (2002) 55 NSWLR 320. In practice, this requires proceedings in the commission or the tribunal first to be removed pursuant to s 8(1) (b) of the State Act, to the Supreme Court, and it is that court which then considers the application for a transfer of proceedings to the Supreme Court of another state. Jackson v Mylan (2012) 263 FLR 148 and Amaca Pty Ltd v Munro [2013] NSWSC 50 provide examples of this procedure being followed. 22. This is a statutory requirement to exercise the power of transfer, and does not involve or depend upon the exercise of any discretion: BHP Billiton Limited v Schultz (2004) 221 CLR 400 at 421, at [14], 434– 5 at [62]–[63]. 23. Jackson v John Fairfax & Sons Ltd (1986) 98 FLR 145; Soverina Pty Ltd v Natwest Australia Bank Ltd (1993) 118 ALR 298. 24. Blake v Norris (1991) 20 NSWLR 300 at 307–8 per Smart J. 25. Tangalooma Island Resort Pty Ltd v Miles (1989) 96 FLR 47. 26. (2000) 104 FCR 305. 27. See note 26 above at 338. But see the doubts expressed by Kirby J in Gould v Brown (1998) 193 CLR 346 at 496. See also Rossmick No 1 Pty Ltd v Bank of Queensland Ltd [2008] FCAFC 81 at [6], accepting that the Federal Court’s appellate jurisdiction under s 28 of the Federal Court of Australia Act 1976 (Cth) could not be engaged in relation to or in order to supplant or replace an order made by a single judge under the cross-vesting legislation. 28. The decisions of the New South Wales Court of Appeal in Bankinvest AG v Seabrook (1988) 14 NSWLR 711; James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 357; and Resarta Pty Ltd v Finemore (2002) 55 NSWLR 320 were not appeals but the hearing of cross-vesting applications removed into the Court of Appeal because they were considered to raise important questions of principle. 29. (2004) 221 CLR 400. 30. The constitutionality of this course was noted by Gummow J at 433, at [55] subject to a possible qualification in circumstances where the Supreme Court in question was exercising federal jurisdiction (which it was not, in that case). See also at 453, at [127] per Kirby J. 31. Cf PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 330–1; Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45 at 87–91. 32. (1990) 94 ALR 428 at 432–3. 33. (1991) 15 Fam LR 56; 109 FLR 177. 34. (2000) 104 FCR 305. 35. Rayner v Pittard (1990) 99 FLR 111; Acc Fin International Securities Ltd v National Trustees Executors and Agency Co of Australasia Ltd (1990) 99 FLR 432; Bell Group Ltd (in liq) v Westpac Banking Corp (2000) 104 FCR 305 at 351–7. 36. Old Digger Pty Ltd v Pasdonnay Pty Ltd [2003] FCA 292. 37. See 3.37ff. 38. Perdaman Chemicals and Fertilisers Pty Ltd v ICICI Bank Ltd [2013] FCA 175 at [10]–[12].

39. Bourke v State Bank of New South Wales (1988) 85 ALR 61 at 77 per Wilcox J. 40. By the Jurisdiction of Courts Legislation Amendment Act (Cth) Sch 1, para 61. 41. (1988) 14 NSWLR 711. 42. (1988) 165 CLR 197. 43. [1987] AC 460. 44. See note 43 above at 476 per Lord Goff of Chieveley. 45. (2004) 221 CLR 400. 46. In the Marriage of Chapman and Jansen (1990) 13 Fam LR 853; Re T (an infant) [1990] 1 Qd R 196 at 200 per Ryan J; Down to Earth Spring Water Pty Ltd v State Bank of New South Wales (1991) 31 FCR 81. 47. Kenda v Johnson (1992) 15 Fam LR 369. 48. In such a case the provision for a stay of proceedings under s 20 of the Service and Execution of Process Act 1992 (Cth) is inapplicable: s 20(1). 49. (1988) 14 NSWLR 711 at 730. 50. BHP Billiton Limited v Schultz (2004) 221 CLR 400 at 439, at [77]; see also 421 at [14], 425 at [25], 463–4. 51. [2011] VSC 291 at [14]. See also Bateman and Idameneo (No 123) Pty Ltd v Fairfax Media Publications Pty Ltd and Ors [2013] ACTSC 72 at [68]–[70]. 52. (1990) 171 CLR 538. 53. Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd [1990] WAR 531; Platz v Lambert (1994) 12 WAR 319; Air Attention WA Pty Ltd v Seeley International Pty Ltd (Walsh J, SC (WA), 3 September 1996, BC9604200, unreported); Douglas v Philip Parbury & Associates [1999] WASC 15; Whyalla Refiners Pty Ltd v Grant Thornton (a firm) (2001) 182 ALR 274. 54. Amaca Pty Ltd v Munro [2013] NSWSC 50 at [23]. 55. BHP Billiton Limited v Schultz (2004) 221 CLR 400 at 421, at [15], 424 at [21]. 56. Western Australia v Duncan [2011] NSWSC 1320; Irwin v State of Queensland [2011] VSC 291; Kellow v Irish Murphy’s Pty Ltd [2010] VSC 239. 57. Commissioner of the Australian Federal Police v Nguyen [2013] NSWSC 179. 58. See note 55 above at 421, at [15]. 59. (2004) 221 CLR 400. 60. See, for example, Wallaby Grip Ltd v Gilchrist [2007] NSWSC 1181; Amaca Pty Ltd v Munro [2013] NSWSC 50. 61. Amaca Pty Ltd v Munro [2013] NSWSC 50 at [33]–[39]. 62. See, for example, AIG United Kingdom Ltd v QBE Insurance (Europe) Ltd [2008] QSC 308. 63. BHP Billiton Limited v Schultz (2004) 221 CLR 400 at 445, at [100], 492 at [258]. 64. See note 63 above at 422, at [16], 426 at [26], 465–7 at [167]–[169], [171]. 65. Asciano Services Pty Ltd v Australian Rail Track Corporation Ltd [2008] NSWSC 652; Nelos Pty Ltd v Watpac Construction Pty Ltd [2012] NSWSC 1371. 66. Huddart Parker Ltd v The Ship ‘Mill Hill’ (1950) 81 CLR 502 at 508–9; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 230–1, 259; Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 425–9, 445.

67. National Dairies WA Ltd v Wesfarmers Ltd (Tamberlin J, FCA, 18 July 1997, BC9603177, unreported). 68. West’s Process Engineering Pty Ltd v Westralian Sands Ltd (SC (NSW), 6 August 1997, unreported). 69. [2005] VSC 398. 70. (2001) 161 FLR 355 at 364–5. 71. Cf Slater & Gordon Pty Ltd v Porteous [2005] VSC 398 which illustrates that the success of such applications is likely to be rare. 72. Todber Pty Ltd v Glendale RV Syndication Pty Ltd (2004) 211 ALR 390. 73. Sugar Australia Ltd v Conneq [2011] NSWSC 805. 74. Western Australia v Duncan [2011] NSWSC 1320 at [12]. 75. (1988) 14 NSWLR 711 at 727. 76. (2000) 50 NSWLR 357 at 380 per Mason P (with whom Spigelman CJ and Priestley JA agreed). 77. See note 76 above. 78. (2004) 221 CLR 400 at 437, at [713]. 79. See SMEC Australia Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2011] VSC 213 at [23]– [28]. 80. Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and the state and territorial statutes set out in note 1, above. 81. Waterhouse v Australian Broadcasting Corporation (1992) 27 NSWLR 1 at 3 per Hunt CJ at CL. 82. Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519 at 525 per Samuels JA. 83. BRC Piling Pty Ltd v Trans Pacific Shipping Co [1992] 2 VR 686. See also Deputy Commissioner of Taxation v Hickey [1999] FCA 259 (Mareva order of transferor court). 84. Abrook v Paterson (1995) 58 FCR 293; 136 ALR 753; Deputy Commissioner of Taxation v Hickey [1999] FCA 259. 85. Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519 at 523 per Samuels JA. See also Griffith, Rose and Gageler, ‘Choice of Law in Cross-vested Jurisdiction: A Reply to Kelly and Crawford’ (1988) 62 ALJ 698 at 703. 86. [1992] ACL Rep 145 NSW l, cited by Gummow J in David Syme & Co Ltd v Grey (1992) 115 ALR 247 at 259–60. See also Waterhouse v Australian Broadcasting Corporation (1992) 27 NSWLR 1. 87. Waterhouse v Australian Broadcasting Corporation (1989) 97 FLR 1. 88. Defamation Law of 1889 (Qld). 89. Defamation Act 1957 (Tas). 90. For a discussion of the choice-of-law rule in tort, see Chapter 20 below. 91. Jones v TCN Channel Nine Pty Ltd (1992) 26 NSWLR 732. 92. Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519 at 523 per Samuels JA; David Syme & Co Ltd v Grey (1992) 115 ALR 247 at 259 per Gummow J. 93. See also Janetzki v Janetzki (1999) 28 MVR 532, where the Supreme Court of Victoria held that an action could be brought against the New South Wales Nominal Defendant in Victoria, because the Motor Accidents Act 1988 (NSW) was applicable to the Victorian proceedings by operation of s 11(1) (b) of the Cross-vesting Act. 94. See Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 720 per Rogers AJA.

95. (1992) 115 ALR 247 at 260. 96. See Choice of Law, ALRC Report No 59, paras 3.16–3.20. 97. Sapir v Sapir (No 2) (1989) 13 Fam LR 362; Attorney-General (NSW) v Ray (1989) 90 ALR 263. 98. Waterhouse v Australian Broadcasting Corporation (1992) 27 NSWLR 1 at 3 per Hunt CJ at CL. 99. (1990) 19 NSWLR 541. 100. However, New South Wales judges have also exercised cross-vested powers without full enquiry: see Re H and the Adoption of Children Act [1990] ACLD 1005. 101. Compare Reidy v Trustee of the Christian Brothers (1994) 12 WAR 583 where the limitation law of the transferee court (the lex fori) was thought to be more appropriate with In the Marriage of Wilton and Jarvis (1996) 133 FLR 355, where the limitation law of the transferor jurisdictions was applied. In both cases, the court selected the limitation law of the place where the events in question took place. 102. This is supported by Griffith, Rose and Gageler, ‘Choice of Law in Cross-vested Jurisdiction: A Reply to Kelly and Crawford’ (1988) 62 ALJ 698 at 703, as ‘a flexible and practical means of accommodating any necessary variations from the rules of evidence and procedure which would otherwise be applicable’. 103. See Amor v Macpak Pty Ltd (1989) 95 ALR 10. 104. See 6.15–6.16 above. 105. In the Marriage of Wilton and Jarvis (1996) 133 FLR 355. 106. BHP Billiton Limited v Schultz (2004) 221 CLR 400 at 430, at [44]–[45]; see also David Syme & Co Ltd v Grey (1992) 115 ALR 247 at 273–4 per Gummow J. 107. Re an Alleged Incapable Person FCC and The Protected Estates Act 1983 (1990) 19 NSWLR 541; Re H and the Adoption Act [1990] ACLD 1005. 108. Waterhouse v Australian Broadcasting Corporation (1991) 25 NSWLR 519. 109. Bell Group Ltd v Westpac Banking Corp (2000) 104 FCR 305 at 355–6 per Carr J. See also Jurisdiction of Courts (Cross-vesting) Act (Cth) s 4(1)(b), discussed below. 110. Kelly and Crawford, ‘Choice of Law under the Cross-vesting Legislation’ (1988) 62 ALJ 589. See also M Leeming Authority to Decide: the Law of Jurisdiction in Australia, Federation Press, 2012, pp 160– 165. 111. Bell Group Ltd v Westpac Banking Corp (2000) 104 FCR 305 at 355–6 per Carr J. 112. Kelly and Crawford ‘Choice of Law under the Cross-vesting Legislation’ (1988) 62 ALJ 589. 113. See Abrook v Paterson (1995) 136 ALR 753 at 758 per Branson J in support of this view. 114. Waterhouse v Australian Broadcasting Corporation (1992) 27 NSWLR 1. 115. Kelly and Crawford ‘Choice of Law under the Cross-vesting Legislation’ (1988) 62 ALJ 589 at 593. 116. (1987) 162 CLR 574. 117. Waterhouse v Australian Broadcasting Corporation (1992) 27 NSWLR 1.

[page 146]

Chapter 7

Forum Selection and Arbitration Agreements Introduction 7.1 It is open to parties to a contract to stipulate in advance, in the form of a suitably drawn contractual clause, either the venue or the mode of dispute resolution. A forum selection clause may take a number of different forms. They range from a ‘submission to suit’ clause — by which one or both parties agree to submit to the jurisdiction of a particular court or the courts of a particular forum (although typically not on an exclusive basis) — to a ‘jurisdiction’ or ‘choice of court’ clause which, depending on its construction, may or may not constitute an exclusive jurisdiction clause, through to a ‘jurisdiction’ or ‘forum’ clause which is expressly stated to confer jurisdiction exclusively on the courts of one country or locality. 7.2 A clause by which the parties submit to, or positively select, the jurisdiction of a particular forum, will typically be sufficient to authorise the exercise of jurisdiction by that forum under its rules of court even where the defendant is not present in or, if a corporation, not able to be served in the jurisdiction.1 When a party so submits, any judgment rendered by the court on which jurisdiction is so conferred will typically be enforceable on common law principles,2 or under the provisions of the Foreign Judgments Act 1991 (Cth) in cases to which that Act applies.3 7.3 Closely associated with forum selection clauses in terms of the principles which govern their interpretation and enforcement are arbitration clauses or arbitration agreements by which parties agree to the mode, as opposed to the forum, for dispute resolution (although arbitration clauses or agreements will often also make provision for the seat of any arbitration). When the arbitration

clause meets the definition of an international arbitration agreement,4 the common law principles [page 147] are subsumed by the operation of the International Arbitration Act 1974 (Cth).5 It is convenient, however, to treat the question of the staying of proceedings by reference to an exclusive jurisdiction clause or an arbitration agreement in a single chapter because of the similarity of issues that may arise on a stay application and the overlap of many of the principles applicable to the construction of such agreements.6,7 7.4 Interlocutory disputes relating to jurisdiction clauses most frequently arise where one party has commenced proceedings in a forum other than that nominated by the parties in their contract. This will typically have been done because of the advantages (real or perceived) offered by the forum in which proceedings have been commenced.8 Similarly, litigation as opposed to contractually specified arbitration may be initiated by a party who sees strategic benefit in proceeding in open court as opposed to (typically) confidential and private arbitration. The obvious response for a defendant either to proceedings commenced in other than the contractually specified forum, or commenced instead of arbitration, is to seek a stay of such proceedings. The key difference between the enforcement of an exclusive jurisdiction clause and the enforcement of an arbitration clause or arbitration agreement by means of a stay of proceedings is that the former remains in the discretion of the court (albeit that there will be a strong predisposition to grant a stay)9 whereas, in the latter context, provided that the dispute falls within the scope of the arbitration agreement and it is otherwise operative, the court has no discretion as to whether or not to stay the proceedings. 7.5 Part II of the International Arbitration Act 197410 contains s 7(2) which relevantly provides that: [page 148] Subject to this Part, where: (a) proceedings instituted by a party to an arbitration agreement to which this section applies

against another party to the agreement are pending in a court; and (b) the proceedings involve the determination of a matter that, in pursuance of the agreement, is capable of settlement by arbitration; on the application of a party to the agreement, the court shall, by order, upon such conditions (if any) as it thinks fit, stay the proceedings or so much of the proceedings as involves the determination of that matter, as the case may be, and refer the parties to arbitration in respect of that matter.

The word ‘shall’ in s 7(2) of the Act is mandatory, consistent with the express objects of the Act that include the encouragement of arbitration as a method of resolving disputes.11 Thus, s 7(2) has the consequence that, if the proceedings or any aspect of them ‘involve the determination of a matter12 that, in pursuance of the agreement is capable of settlement by arbitration’,13 that matter or those matters must be referred to arbitration14 and the court may stay the entirety of the proceedings [page 149] until an award is made on the matter referred.15 Alternatively, the court may exercise its power to impose a condition in granting a stay,16 and order that the arbitration not proceed until final determination of the matters not referable to arbitration.17 Where conditions to the grant of a stay are imposed, they should be incidental to the main purpose of holding parties to their agreement to arbitrate and should not be imposed to change the conditions on which the arbitration is to be conducted; for example, by changing the venue and applicable law of the arbitration.18 Still less should the power to impose conditions on the grant of stay of proceedings be used to usurp the powers of the arbitrator, to detract from the integrity of the arbitration process or to manipulate the rights of the parties, at least in circumstances where there is no pressing need or justification for the imposition of particular conditions.19 Similarly, the power to grant interim relief pursuant to s 7(3) of the Act must not be used to subvert, undermine or emasculate the arbitration process.20 An important qualification to the power (and, indeed, requirement) to grant a stay under s 7(2) is supplied by s 7(5) which provides, almost self-evidently, that no stay may be ordered in circumstances where the arbitration agreement is ‘null and void, inoperative or incapable of being performed’.21 7.6 Part III of the International Arbitration Act 1974 gives effect to the UNCITRAL Model Law on International Commercial Arbitration which is

reproduced in Sch 3 and which, by s 16 of the Act, is stated to have ‘the force of law in Australia’. Article 8 of the Model Law, which deals with the staying of actions brought in breach of an arbitration agreement, applies whether the arbitration is to be conducted in Australia or abroad.22 Art 8 provides: (1) A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed. (2) Where an action referred to in para (1) of this article has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.23

[page 150] The operation of Art 8 is far wider than that of s 7(2) of the Act because, unlike the provisions of the New York Convention as enacted by s 7(2), the agreement need not have any connection with a country that has adopted the Model Law.24 It must, however, be an agreement for ‘international commercial arbitration’.25 It may be the case that both Art 8 and s 7(2) of the Act apply to any given case. Thus, in Shanghai Foreign Trade Corp v Sigma Metallurgical Co Pty Ltd,26 the Supreme Court of New South Wales regarded s 7 and Art 8 as cumulative or alternative in effect. However, there may be circumstances where the defendant would be entitled to a stay under one provision but not the other.27 7.7 An alternative response to seeking a stay of proceedings commenced in apparent breach of an exclusive jurisdiction clause or arbitration agreement is to seek an anti-suit injunction from a court (typically that nominated in the jurisdiction clause, but in any event one which has in personam jurisdiction over the party that has commenced the litigation) by which the plaintiff in apparent breach of the jurisdiction or arbitration agreement is restrained from continuing with its proceedings in the particular forum in which suit for substantive relief has been initiated.28 7.8 Before a stay or an anti-suit injunction will be granted, however, there are a number of anterior issues that may arise in any given case concerning: the existence and enforceability of the jurisdiction clause or arbitration agreement; the continuing efficacy of the jurisdiction clause or arbitration agreement;

the impact, if any, on the jurisdiction clause or arbitration agreement of any mandatory law of the forum; the nature of the jurisdiction clause or arbitration agreement; and the scope of the jurisdiction clause or arbitration agreement. 7.9 The need to deal with these issues often results in stay or anti-suit injunction applications involving adjectival inquiries into issues of contract formation, contract construction, choice of law and the conduct of the parties, before the question of whether, as a matter of discretion, the jurisdiction clause should be enforced by [page 151] means of a stay or anti-suit injunction is reached.29 The balance of this chapter is organised by reference to these issues. There is then a consideration, in the context of exclusive jurisdiction agreements, of the principles applicable to the application for stay of proceedings and in particular the limited circumstances in which the court’s discretion may be exercised against the grant of a stay of proceedings.

The existence and enforceability of the jurisdiction or arbitration agreement 7.10 A threshold argument which may be advanced by a party faced with a stay application based upon a contractual clause is that there has simply been no agreement to exclusive jurisdiction or arbitration or that any such agreement is void or voidable.30 This may or may not form part of a broader argument that there is no contract between the parties or that any such contract containing a jurisdiction or arbitration clause is void or voidable. In either case, complex choice-of-law questions are raised which centre on the issue of what law governs the basic question of agreement between the parties, and the enforceability of that agreement. In Australia, these choice-of-law questions are to be determined in accordance with common law conflicts principles. 7.11 The leading English authority on the common law conflict-of-laws approach to this question, Mackender v Feldia AG,31 suggests, although by way

of obiter dictum, that the lex fori should probably govern a plea of non est factum.32 That case drew a very clear distinction between a plea which would merely render a contract voidable as opposed to void, it being evident that a plea of the former kind should be determined in accordance with the putative proper law of the contract.33 In line with Mackender v Feldia’s suggested application of the lex fori to questions of basic agreement is the High Court’s decision in Oceanic Sun Line Special Shipping Co Inc v Fay.34 On boarding the MS ‘Stella Oceanis’ in Greece, Dr Fay was handed a ticket, cl 13 of which purported to provide for the exclusive jurisdiction of the Greek courts. Treating the question as one of classification, Brennan J applied Australian law as the lex fori in order to determine whether ‘the parties [had] reached a consensus ad idem and what that consensus was’.35 He concluded that the contract had been formed well before Dr Fay was handed his actual ticket and that ‘it was too late after [page 152] the original contract was made to add conditions which were not incorporated in it’.36 Gaudron J, while agreeing with Brennan J’s conclusion that the jurisdiction clause formed no part of the contract, did not see the issue as one of ‘classification’. Rather, she considered that the lex fori should determine: … questions as to the existence, construction and validity of terms bearing on the determination of the parties’ agreement as to the proper law … If the question of what is the proper law is one to be answered by application of the lex fori [and it is difficult to see what other law it could be identified by], until the lex fori provides the answer to that question there is no scope for the operation of any other law.37

7.12 As one of the pre-eminent indicators of the proper law in the absence of an express choice is the existence of a jurisdiction agreement,38 then for this to be taken into account, a court must be satisfied that there is in fact consensus between the parties as to such an agreement. On the above analysis, as this question is logically anterior to the determination of the proper law, then the only law that can be applied to test the existence of the agreement for the purposes of identifying the proper law is that of the forum. 7.13 The question of what law should govern the formation of contracts has excited considerable academic debate39 and a variety of approaches has been suggested. In Oceanic Sun Line Shipping, Brennan J expressly endorsed an approach which treats the question of formation as one of classification or characterisation.40 That approach may be criticised, however, for taking an

unduly expansive view of characterisation. Briggs has advocated a more complex approach which, while also arguing for the lex fori, incorporates a role for the putative proper law in the event that agreement is found sufficiently to exist according to the lex fori.41This approach adopts Gaudron J’s analysis in Oceanic Sun Line Shipping but takes it a step further by then asking whether there is a contract (or an agreement as to jurisdiction) according to the proper law as identified by the lex fori. 7.14 A distinction may need to be drawn between cases where it is alleged that no contract whatsoever is in existence, and cases, such as Oceanic Sun Line Shipping, where the contention is only that there has been no agreement to an exclusive jurisdiction clause. In the latter case, there may be fewer logical objections to applying the proper law of the contract as that will be the law which the parties have either expressly or imputedly chosen to govern their contractual relations. However, as jurisdiction clauses provide one of the key tools for ascertaining the proper law of a contract in the absence of an express choice of law, applying the putative proper law to the question of agreement must either ignore such a clause or take it [page 153] into account in circumstances where its very existence is being questioned. Either approach is logically unattractive because it begs the question one way or the other. Accordingly, there is much which is attractive in the approach advocated by Briggs. It accommodates the putative proper law approach but allows full advantage to be taken of one of the most reliable tools for ascertaining the proper law of a contract. 7.15 Whatever position is preferred, it is evident that the question of what law should govern questions relating to the formation of international contracts is ‘one of the more notoriously intractable problems of the modern conflict of laws’.42 With the exception of Oceanic Sun Line Shipping, it has also not been the subject of any authoritative decision. This being the case, there is scope for much potential uncertainty in cases where a plaintiff commences litigation in the face of a foreign exclusive jurisdiction clause which it claims it never agreed to.43 7.16 Lief Investments Pty Limited v Conagra International Fertiliser Co44 provides an example of a case in which there was a threshold dispute as to

whether or not the contract in question in fact contained an arbitration clause. The question which was debated at first instance in the form of a mini-trial was whether or not the parties’ agreement was represented by terms proposed by the buyer or seller of a large shipment of fertiliser. The buyer’s terms purported to incorporate by reference what were described as ‘Sinochem’s standard terms and conditions’, which in turn were said to contain an arbitration clause requiring all disputes to be arbitrated before a Chinese arbitral body. It was in reliance upon such a clause that Lief sought a stay of proceedings for short payment which had been commenced by Conagra in the Supreme Court of New South Wales. Lief’s argument was that the parties’ contractual arrangements were contained in a series of faxes which had been exchanged on 21 February 1997 and which were not superseded by a formal agreement three days later. That formal agreement, however, omitted any reference to Sinochem’s standard terms and conditions. It was held that the terms of the contract were contained in the executed formal contract and thus that there was no arbitration clause. It was also held that, even if the terms of Lief’s fax of 21 February 1997 did form part of the parties’ contractual arrangements, the reference in that fax to Sinochem’s standard terms and conditions was too uncertain as to be effective, for the reason that the evidence disclosed that there were in existence different versions of these socalled ‘standard terms’. 7.17 Another example is provided by the English case Jayaar Impex Limited v Toaken Group Limited.45 This case involved, as will often be the case in commodity contracts, the binding of a contract over the telephone for the purchase of a particular commodity. Subsequent to that event, a written contract was sent which included the assertion ‘IGPA Spot conditions to apply’ and made provision for arbitration in accordance with that particular association’s rules. The buyers never executed this contractual form but the goods were nevertheless sold and delivered. [page 154] A dispute in respect of quality of the commodity subsequently arose and the issue for determination was whether or not the parties had incorporated the IGPA Spot conditions and arbitration agreement into their contract. It was held that they had not on the footing that the contract which had been concluded orally was not made by reference to these terms and that a collateral contract did not arise by way of the subsequent sale, acceptance of goods and payment for them.

7.18 In Hi-Fert Pty Ltd v United Shipping Adriatic Inc,46 it was argued that an ad hoc arbitration agreement had come into effect between the parties as a result of an exchange of correspondence between their respective solicitors and certain procedural steps taken in the disputed arbitration in London. It was contended that this was a separate arbitration agreement which superseded that contained in a bill of lading relating to the carriage of a cargo of grain to Australia. The significance of this argument lay in the fact that, if such an agreement had come into existence, proceedings commenced by Hi-Fert in the Federal Court of Australia were apt to be stayed by reference to the ad hoc agreement. They could not have been stayed by reference to the arbitration agreement incorporated by reference into the bill of lading because s 11(2) of the Carriage of Goods by Sea Act 1991 (Cth) represents a limited legislative carve-out to the operation of the International Arbitration Act 1974. Whilst this argument was rejected on the facts of that case, arbitration agreements may be made ‘ad hoc’ and the case provides a good illustration of an adjectival dispute as to the existence of such an agreement in the context of an application to stay the Federal Court proceedings. 7.19 Apart from questions as to the existence of agreement, whether to the contract as a whole or to the jurisdiction or arbitration clause in particular, another question which frequently arises in this context is whether a jurisdiction or arbitration agreement has been incorporated into a larger contract. This was one of the issues in Oceanic Sun Line Shipping noted above. Similarly, in Re Jogia,47 the plaintiff trustee in bankruptcy sought to resist a challenge to the English court’s jurisdiction by arguing that an exclusive jurisdiction clause for the Commercial Court of Paris was not a term of the original contract made between the parties and therefore was not binding on the bankrupt. BrowneWilkinson VC held that although ‘there may be some doubt whether the terms of the first transaction incorporated the exclusive jurisdiction clause’ the terms became part of the contract through the subsequent course of dealings.48 The Emre II49 provides another straightforward example. Although the defendants pointed to a jurisdiction clause in a so-called ‘Protocol’ agreement, Sheen J was clear that as the action was brought upon a mortgage which contained no such agreement, it could not form the basis for any decision to stay proceedings.50 7.20 The relevant principles concerning the incorporation of terms should be supplied by the proper law of the contract into which it is being sought to incorporate [page 155]

the jurisdiction or arbitration agreement.51 This was the approach followed by Sheen J in The Blue Wave52 and by the English Court of Appeal in The El Amria and El Minia.53 In the former case, the proper law was Greek but, as no evidence of Greek law on the question whether indorsees of a bill of lading were bound by its terms was presented, it was assumed to be the same as English law, and s 1 of the Bills of Lading Act 1855 was applied. In the latter case, again in the absence of proof, the proper, Egyptian, law was assumed to be the same as English law. 7.21 Admiralty cases provide much of the case law in this area, especially with regard to arbitration clauses. The nature of international shipping contracts is such as to encourage arguments that a jurisdiction or arbitration clause in one contract has not been incorporated down the line.54 In The Mahkutai,55 the Privy Council rejected an argument by ship owners that a Himalaya clause entitled them to the benefit of an exclusive jurisdiction clause in a bill of lading to which they were not a party. The essence of the decision rested on the fact that as the exclusive jurisdiction clause upon which the shipowners sought to rely created mutual rights and obligations, such a clause did not fall within the familiar language of ‘exception, limitation, condition or liberty benefiting the carrier’ in the Himalaya clause. By way of contrast, the earlier decision of the Privy Council in The Pioneer Container56 was to the effect that, where goods had been sub-bailed with the authority of the owner, that authority was sufficient to bind the owner to the terms of the sub-bailment, including an exclusive jurisdiction clause contained in the contract of sub-bailment. In BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd,57 it was unsuccessfully argued that a ship broker was entitled to the benefit of an arbitration clause contained in a charter party (to which the ship broker was not a party) by reference to the Contracts (Rights of Third Parties) Act 1999 (United Kingdom). This decision turned on an interpretation of that Act, with Finkelstein J assuming without deciding that it was open to have regard to foreign statute law to ascertain whether or not a person was claiming ‘through or under’ a party to an arbitration agreement within the meaning of s 7(4) of the International Arbitration Act 1974 (Cth). 7.22 Where the incorporation by reference of an arbitration clause is in issue, the view traditionally taken in England, at least in shipping cases, is that, for the incorporation to be effective, the arbitration clause must be specifically referred to [page 156]

in the incorporation clause and that general words of incorporation will not suffice. The leading case is TW Thomas & Co Ltd v Portsea Steamship Co Ltd,58 although it should be observed that later decisions have not always followed its strictures and general words of incorporation have been held to be capable of picking up an arbitration clause contained, for example, in a head contract.59 This approach is perhaps more attractive as a matter of principle than the somewhat rigid test requiring the explicit incorporation of the arbitration clause. TW Thomas has not, however, been followed in Australia.60 7.23 A distinction may be usefully drawn between, on the one hand, cases where what is being incorporated is a set of standard terms and conditions, where general words of incorporation are more likely to be effective to pick up an arbitration or jurisdiction clause, as was the case in Crédit Suisse Financial Products v Société Générale d’Enterprises,61 and, on the other hand, cases where what is sought to be incorporated are the terms of another contract.62 This situation commonly arises in both shipping and reinsurance contexts. Thus, it has been held that the words ‘Conditions: Wording as original’ contained in a reinsurance slip were insufficient to pick up an exclusive jurisdiction clause in the underlying policy of insurance both by reason of the fact that the exclusive jurisdiction clause was ancillary in nature and did nothing to define the risk being reinsured and, further, that it was unlikely that, as between reinsurer and reassured, the parties intended that any disputes arising under the contract or reinsurance policy should be required to be litigated in the same forum as that specified in the underlying policy of insurance.63 7.24 Related to the question of the very existence of the jurisdiction or arbitration agreement is the question whether or not any such agreement is vitiated for some reason and, as such, voidable, whether at common law, equity or under statute. Unlike the cases discussed thus far in this section, here there is no question as to whether there has been agreement, either to exclusive jurisdiction, arbitration or contractual relations as a whole. Rather, the contention is that such agreement is tainted so that the jurisdiction or arbitration clause should not be enforced. At common law, as has been seen from the references to Mackender v Feldia AG above, this is a question which is governed by the proper law of the agreement. In Donohue v Armco64 (at first instance) Aikens J, confronted by an argument seeking, on the [page 157]

grounds of fraud, to impugn an exclusive jurisdiction clause upon which the plaintiff was seeking to rely for the purposes of sustaining an anti-suit injunction, said that ‘for the purposes of an application for an anti-suit injunction, a court should regard an exclusive jurisdiction clause as valid unless satisfied, at the lowest, that there is credible evidence demonstrating that it is invalid or ineffective’.65 7.25 It follows from the argument set out at 7.13 above that, although the question of the agreement’s voidability is governed by its proper law, there will also be an anterior role for the lex fori. This is because the validity of such an agreement must be tested before a common law court can consider whether or not to take it into account in ascertaining the contract (or agreement’s) proper law. That law, as ascertained, is then to be applied to the question of whether the jurisdiction agreement should be avoided.66 7.26 The choice of law questions that have been considered in this section demonstrate that the ‘security’ of an exclusive jurisdiction clause may in part be dependent upon the content of the proper law of the contract in which it is contained (which will invariably supply the proper law of the jurisdiction agreement, if this is regarded as a separate or severable agreement). As a consequence, it may be undermined both because the actual identity of the proper law may be somewhat problematic in the absence of an expressly chosen proper law and, perhaps more significantly, because the content of the proper law at common law is a question of fact and thus is nothing more than a function of the quality of the evidence presented.67 Further, as a question of fact, there is less scope for correction of errors on appeal.68 7.27 The arguments considered in the preceding paragraphs assume that a direct assault is being made upon the jurisdiction or arbitration agreement in question by reference to such vitiating factors as may be able to be deployed on the facts of the case. It is important to appreciate that the mere fact that a contract that contains a jurisdiction or arbitration clause may have been avoided ab initio will generally not displace a jurisdiction or arbitration clause contained in such a contract.69 In other words, unless specifically attacked, an arbitration or exclusive jurisdiction clause will continue in existence after avoidance of the contract in which it is contained.70 This is what is known in arbitration as the doctrine of separability or severability. It applies equally in the context of jurisdiction clauses. By way of illustration, in FAI General [page 158]

Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association,71 FAI commenced proceedings in the Supreme Court of New South Wales seeking declarations that certain policies of reinsurance had been avoided for non-disclosure. The policies were held to have contained exclusive jurisdiction clauses for the English courts. In answer to an application to stay proceedings by virtue of those clauses, FAI submitted that, as the policies had been avoided, so too had the jurisdiction clauses. This argument was rejected and the proceedings were stayed.72

The agreement’s continuing efficacy 7.28 Unlike arguments already considered which claim that the jurisdiction or arbitration agreement is voidable by reason of the conduct of one of the parties at the time of entry into the contract, a party’s subsequent conduct may affect the continuing efficacy of the exclusive jurisdiction or arbitration clause.73 This section considers the question of when and how a party may lose the benefit of such a clause. Apart from the case of frustration of the agreement,74 this essentially involves an inquiry into the conduct of the parties subsequent to entry into the contract. 7.29 The simplest case is where there has been a novation or variation of the relevant contractual clause. Incitec Limited v Alkimos Shipping Corporation75 provides an excellent illustration of contractual variation. The relevant charter party between the parties in dispute incorporated a London Maritime Arbitrators Association arbitration clause. However, after proceedings had been commenced by shipowners against the time charterer, those parties agreed to vary that clause to replace it with an exclusive jurisdiction clause by which the parties agreed to submit their disputes relevantly to the English High Court of Justice. It was thus by reference to that varied dispute resolution clause that time charterers sought to stay proceedings which had been commenced in the Federal Court of Australia.76 Another example of a contract containing an arbitration clause being varied so as to render, in the particular circumstances of the case, that clause ‘inoperative’ within the meaning of s 7(5) of the International Arbitration Act is the decision of Gummow J, when a judge of the Federal Court, in Bakri Navigation Company Ltd v Owners of Ship [page 159]

‘Golden Glory’.77 An agreement also becomes ‘inoperative’ if an arbitrable dispute is settled by the parties to the agreement.78 7.30 Conduct by one party may also amount to a repudiation of an arbitration agreement which, if accepted, will bring that arbitration agreement to an end, in accordance with classical contract theory. An example of this is supplied by the English Court of Appeal’s decision in John Downing v Al Tameer Establishment.79 The relevant repudiatory conduct on the part of the party seeking a stay of proceedings by reason of an arbitration agreement was a series of earlier strenuous denials on its part as to the existence of any such agreement. That repudiatory conduct was held to have been accepted by the counter party by the commencement of proceedings in court rather than by way of arbitration. 7.31 Certain conduct including dilatoriness or unconscionable behaviour80 on a defendant’s part may found a conclusion that it has either waived, or is estopped from relying on, its right to enforce the exclusive jurisdiction or arbitration clause (at least by the remedy of a stay of proceedings or an anti-suit injunction). Cases of waiver are, in truth, often examples of contract, estoppel or election.81 In Sargent v ASL Developments Ltd,82 Stephen J said that ‘the words or conduct ordinarily required to constitute an election must be unequivocal in the sense that it is consistent only with the exercise of one of the two sets of rights and inconsistent with the exercise of the other’; though he added later that ‘less unequivocal conduct, only providing some evidence of election, may suffice if coupled with actual knowledge of the right of election’.83With regard to unconscionable conduct, it has been made clear that ‘it is not open to the Court to conclude that the conduct of the defendants falls short of waiver but is so “reprehensible” that the Court will decline to enforce the contract as a matter of discretion’.84 7.32 In ACD Tridon v Tridon Australia,85 followed in BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd,86 Austin J referred to ‘waiver in the stronger sense’ occurring when a party makes an intentional and irrevocable choice not to exercise a right when it has notice of the right, and resulting in the abandonment of the right; and ‘waiver in the weaker sense’ occurring when a party fails to insist upon a right at an appropriate time either by choice or default. In this latter context, [page 160]

Austin J noted that the knowledge of the party of the existence of the right to a stay will be a relevant but not decisive consideration.87 7.33 It is clear that a party will lose and hence may not rely on the benefit of an exclusive jurisdiction or arbitration clause where, by its own voluntary submission to the court in which the stay is sought, for example, by the filing of a cross-claim and/or a defence on the merits,88 it has manifested a willingness to conduct litigation in the forum; so, too, where a party engages in conduct only consistent with an intention to defend the matter on its merits in the court in which proceedings have been commenced by, for example, seeking security for costs89 or discovery.90 7.34 In La Donna Pty Limited v Wolford AG,91 Whelan J held that a party’s conduct in seeking security for costs in proceedings in the Supreme Court of Victoria constituted a waiver of its right to have the dispute referred to arbitration pursuant to an arbitration clause in a distributorship agreement. Such a step, said Whelan J, was ‘based on the explicit premise that the litigation would proceed to trial in the absence of a settlement, and that the matters the subject of the proceeding would be determined by the Court’. The judge continued: Wolford sought an advantage, or at least sought to impose upon La Donna a burden, which was based upon the proposition that the litigation would proceed in this Court, that the defendant would take steps, and that the defendant would incur costs in taking those steps, in that litigation in this Court. This step was an unequivocal abandonment of the alternative course, being an application for a stay and a consequent arbitration. To allow Wolford to rely on the arbitration provision now would be to permit it to approbate and reprobate. In my view, it has waived the provisions and thereby rendered them inoperative.

7.35 This decision may be contrasted with ACD Tridon v Tridon Australia itself in which Austin J held that, although the party seeking a stay of proceedings in the Supreme Court of New South Wales had taken certain steps in those proceedings, at all times it had reserved its right to have the matter referred to arbitration and had not, in all the circumstances, waived that right by its conduct in the early stages of the litigation. The relevant steps were providing undertakings in the context of an application for an interlocutory injunction and submitting to directions by the court. 7.36 In The Biskra,92 Sheen J stated that ‘an application for a stay on grounds that the parties have agreed to submit the dispute to a foreign Court should be brought without delay after service of the writ’.93 In BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd,94 the applicant for a stay by reference to an alleged arbitration clause was held to have waived its right to seek a stay of

proceedings in [page 161] circumstances where the proceedings had been on foot for some eight and onehalf months before the possibility of a stay was sought, and various interlocutory steps had occurred including the filing of a defence and cross-claim, as well as discovery. On the other hand, it was also observed that there was ‘no obligation on a person who may become defendant in proceedings to tell the plaintiff where to issue those proceedings’.95 Prior to the issue of the writ, therefore, the initiative was in the hands of the plaintiff either to inquire directly as to whether the defendant would rely on the jurisdiction or arbitration clause, or to force the matter by issuing proceedings.96 Clearly, however, inordinate delay in applying for a stay after the issue of the claim could justify a finding of waiver or estoppel by acquiescence. In The Vestris,97 the application for a stay on the basis of a New York exclusive jurisdiction clause was made only weeks before the scheduled hearing in circumstances where the parties had been discussing the claim for two years in contemplation of proceedings in England. A stay was refused.98 7.37 None of the cases discussed above has adverted to the issue of what law should govern the question of the continuing efficacy of the jurisdiction agreement, or, in terms of s 7(5) of the International Arbitration Act 1974, whether the arbitration clause has become inoperative, whether this question arises as a result of frustration, contractual novation, or where it is argued that the defendant has either waived the benefit of the agreement or should be estopped from relying on it. In all cases, the lex fori has simply been applied. In line with the approach to questions of validity and construction, there is much to be said for the view that the question of the continuing efficacy of a jurisdiction or arbitration clause should be governed by the proper law of the jurisdiction agreement, especially where novation and frustration are concerned. In Recyclers of Australia Pty Ltd v Hettinga Equipment Inc,99 the court proceeded on the footing that questions concerning the validity, legal effect and interpretation of an agreement to arbitrate were governed by the proper law of the agreement. Where the question of an agreement’s continuing efficacy turns upon waiver or estoppel, it is arguable that these essentially equitable concepts may be governed by the law of the forum.100

Overriding effect of mandatory forum law 7.38 An important exception to the general policy in favour of the enforcement of exclusive jurisdiction clauses and arbitration agreements arises from the occasional clash of such agreements with mandatory rules of the forum in which a plaintiff has commenced or desires to commence proceedings in breach of the clause. Often [page 162] such mandatory laws will be expressed in terms to the effect that a jurisdiction or arbitration clause in a particular type of contract is not binding on a party. An example of such a clause is s 19 of the Insurance Act 1902 (NSW) which provides: A provision in a contract of insurance or other contract or agreement, being a provision with respect to the submission to arbitration of any matter arising out of the contract of insurance, does not bind the insured except where the provision is contained in a contract or agreement, entered into after a difference or dispute has arisen between the insurer and the insured, providing for the submission to arbitration of that difference or dispute.

7.39 Thus, an insured party to a policy containing an arbitration clause could successfully resist an application, on the basis of that clause, to stay proceedings commenced in New South Wales by reference to the operation of s 19 of the Insurance Act 1902.101 7.40 At a federal level, the Insurance Contracts Act 1984 (Cth) was held to be a mandatory law, operating to override an English exclusive jurisdiction clause, in Akai Pty Ltd v People’s Insurance Company,102 as has the Trade Practices Act 1974, although the position in relation to that Act can probably not be treated as settled.103 Another example of a mandatory law of the forum overriding a foreign choice of court or arbitration clause is s 11(2)(c) of the Carriage of Goods by Sea Act 1991 (Cth) which provides: An agreement (whether made in Australia or elsewhere) has no effect so far as it purports to: … (c) preclude or limit the jurisdiction of a court of the Commonwealth or of a State or Territory in respect of: (i)

a bill of lading … relating to the carriage of goods from any place outside Australia to any place in Australia.

7.41 An earlier incarnation of this section was considered and applied by the High Court in Compagnie des Messageries Maritimes v Wilson.104 7.42 An English example of this principle is found in The Hollandia,105 where the House of Lords refused to stay proceedings notwithstanding the existence of an exclusive jurisdiction agreement for the Dutch courts. This was for the reason that any proceedings in the Netherlands would have had the effect of lessening the [page 163] carrier’s liability, contrary to the Hague-Visby Rules, scheduled to the Carriage of Goods by Sea Act 1971 which, as and in the way that it implemented the United Kingdom’s obligations under an international treaty, had the status of a mandatory law of the forum.106 The mandatory operation of the Hague-Visby Rules has also provided the occasion for other jurisdictions to override exclusive jurisdiction clauses in similar circumstances.107 7.43 It should be noted that arguments based on public policy cannot be taken too far in attempts to circumvent the operation of an exclusive jurisdiction clause, a point made by Lord Diplock in The Hollandia108 and demonstrated by the unsuccessful argument advanced in The Benarty.109 In this light, it is to be stressed that there is always a need in the conflict of laws to distinguish between laws of purely local application and mandatory laws. It is somewhat difficult, for example, to see exactly what mandatory law of the forum was being upheld in Coast Lines Ltd v Hudig & Veder Chartering NV,110 where the Court of Appeal refused to enforce an exclusive jurisdiction clause in favour of the Dutch courts. Rather than advancing a mandatory policy of the forum, the court sought to avoid the operation of a mandatory Dutch law considered to be ‘contrary to the general understanding of commercial men’.111 7.44 Referring to mandatory laws, Juenger has observed that ‘up to now, no one has been able to delineate criteria that would tell us, with some precision, what rules qualify for the special treatment this class demands’.112 It was either a failure sufficiently to distinguish between local and mandatory laws, or a perception that the United States doctrine113 which refused to give effect to exclusion clauses in contracts in fact represented a mandatory law of the forum, that underpinned both the majority judgment in the 5th Circuit Court of Appeals114 and Douglas J’s dissent in The Chaparral.115 Douglas J stated that:

The forum selection clause is part and parcel of the exculpatory provision in the towing agreement which … is not enforceable in American courts. For only by avoiding litigation in the United States could [the] petitioner hope to evade the Bisso doctrine … The instant stratagem of specifying a foreign forum is essentially the same

[page 164] as invoking a foreign law of construction except that the present circumvention also requires the American party to travel across an ocean to seek relief. Unless we are prepared to overrule Bisso we should not countenance devices designed solely for the purpose of evading its prohibition.116

7.45 The majority decision, however, was predicated on a far narrower perception of the Bisso doctrine’s sphere of operation, noting that ‘Bisso rested on considerations with respect to the towage business strictly in American waters, and those considerations are not controlling in an international commercial agreement’.117 7.46 In Oceanic Sun Line Special Shipping Co Inc v Fay, the New South Wales Court of Appeal gave a similar and unduly expansive scope to the Contracts Review Act 1980 (NSW).118 In the High Court, however, Brennan J correctly observed that had the exclusive jurisdiction clause been part of the contract of carriage, Greek law would probably have been held to be the proper law of the contract (and of the jurisdiction clause, if regarded as a separate agreement) which would therefore have been outside the Act’s reach.119 The temptation to characterise forum law as of a mandatory character, apart from doing damage to the conceptual integrity of the conflict of laws,120 is also apt to create an incentive for parties bound by exclusive jurisdiction agreements to seek to justify the commencement of proceedings in breach of such a clause, on the basis of a desire to take advantage of certain forum laws alleged to be of mandatory operation. It is apt to create a true conflict of laws. 7.47 This phenomenon is well-illustrated by the largely unsuccessful attempts of certain non-English Lloyd’s ‘Names’ to escape exclusive jurisdiction clauses for England in actions seeking declarations of non-liability and rescission of their membership agreements, on the basis of violation of various national securities and consumer protection legislation in the United States,121 Canada122 and New Zealand123 notwithstanding the character of such legislation. In Australia, decisions have pointed in different directions. Thus, in Williams v The Society of Lloyd’s,124 proceedings including a claim under the Trade Practices Act 1974 were stayed by reason of an exclusive jurisdiction clause; whereas in

Commonwealth Bank of Australia v White; ex parte The Society of Lloyd’s,125 where Mr White invoked both the Trade Practices Act 1974 and the Companies Code in seeking damages and declarations that agreements he had with Lloyd’s were void or unenforceable for illegality, the court refused to give effect to an exclusive jurisdiction clause for the [page 165] English courts drawn in extremely wide terms.126 It is significant that the proceedings contained a direct assault on the jurisdiction clause as opposed to a generalised attack on the broad contractual relationship between Mr White and Lloyd’s. Byrne J regarded the exclusive jurisdiction clause as, in effect, an impermissible circumvention of both the Trade Practices Act 1974 and the Companies legislation, relief under which would not have been available in the English proceedings. He said: It is undesirable that parties should, by entering into an exclusive jurisdiction agreement, be able to circumvent a legislative scheme established by Parliament to protect investors purchasing interests or prescribed interests. Put more positively, the statutes creating these standards of commercial behaviour for persons doing business in this jurisdiction do not exempt foreign corporations. Moreover, the policy behind them would not be served if exemption might be achieved by inserting stipulations as to foreign law or forum.127

7.48 A similar approach was taken by the three dissenting judges in the decision of the United States Court of Appeals for the 9th Circuit in Richards v Lloyd’s of London.128They placed emphasis upon an observation by the United States Supreme Court in Mitsubishi Motors Corp v Soler Chrysler-Plymouth Inc129 to the effect that ‘in the event the choice of forum and choice of law clauses operated in tandem as a prospective waiver of a party’s right to pursue statutory remedies for anti-trust violations, we would have little hesitation in condemning the agreement as against public policy’. The majority in Richards were content to uphold the parties’ bargain in agreeing to exclusive jurisdiction in England on the basis that, notwithstanding the American statutory claims would not be available in England, they were nonetheless satisfied that English law provided ‘sufficient’, albeit narrower, recourse and protection for the Names.130 7.49 In Donohue v Armco Inc,131 by way of contrast, Lord Scott (but not the other members of the House of Lords) took the view that an English exclusive jurisdiction clause coupled with an English choice of law clause should not be

interpreted as excluding a party’s right to bring a Racketeer Influenced and Corrupt Organisations (RICO) Act claim in the United States. He reached this conclusion as a matter of interpretation of the agreement rather than by resort to notions of mandatory law or public policy. His reasoning was simple: ‘[I]t is common ground that a RICO Act claim could not be brought in an English Court. It cannot, in my opinion, be [page 166] supposed that in submitting to the exclusive jurisdiction of the English courts, the parties had in mind claims which an English court had no jurisdiction to entertain’.132 7.50 It was the assumed ‘tandem’ effect of an English choice of law and English exclusive jurisdiction clause in Akai Pty Ltd v People’s Insurance Company133 that led a majority of the High Court to refuse to stay New South Wales proceedings commenced in apparent breach of that clause due to the mandatory operation of the Insurance Contracts Act 1984 (Cth). It was considered that the dual effect of those clauses would be that the otherwise applicable Insurance Contracts Act 1984, a piece of remedial legislation designed to ameliorate the rigidity of common law principles relating to insurance, would not be applied were the proceedings stayed in favour of England where English and not Australian statutory law would govern the resolution of the parties’ contractual dispute. That perception proved to be correct.134 7.51 Certain types of law are more likely, because of their very nature, to attract the character of a mandatory law of the forum. In the 5th Circuit Court of Appeals in The Chaparral,135 in a dissenting opinion broadly supporting the use and legitimacy of exclusive jurisdiction clauses, Wisdom J issued an important caveat: In cases of bankruptcy, divorce, succession, real rights and regulation of public authorities, for example, courts cannot remit the dispute to a foreign forum lest a foreign forum render a decree conflicting with our ordering of these affairs.136

7.52 The same idea has been elegantly put by Graupner,137 who stated: … submission to a foreign Court removes only those objections which are purely personal to a particular submitting party … The foreign Court will not acquire jurisdiction by submission in matters which by their nature, at common law or by statute, do not belong to it, but fall within the

exclusive competence of the English Courts.

Two New Zealand cases concerning intellectual property rights and insolvent winding up respectively provide interesting examples.138

Arbitrability 7.53 The role of a mandatory law of the forum may also have the consequence, in the context of an international arbitration agreement, that a matter is not ‘capable of settlement by arbitration’ or, as is sometimes said, non-arbitrable.139 In Tanning Research Laboratories Inc v O’Brien,140 Deane and Gaudron JJ observed that ‘the words “capable of settlement by arbitration” indicate that the controversy must be [page 167] one falling within the scope of the arbitration agreement and, perhaps, one relating to rights which are not required to be determined exclusively by the exercise of judicial power’.141 Their Honours referred to Mustill and Boyd’s observation that ‘English law has never arrived at a general theory for distinguishing those disputes which may be settled by arbitration from those which may not’142 but that the powers of arbitrators ‘are limited by considerations of public policy and by the fact that he [the arbitrator] is appointed by the parties and not by the state’.143 By way of elaboration, Mustill and Boyd went on to observe: For example, [the arbitrator] cannot impose a fine or a term of imprisonment, commit a person for contempt or issue a writ of subpoena; nor can he make an award which is binding on third parties or affects the public at large, such as a judgment in rem against a ship, an assessment of the rateable value of land, a divorce decree, a winding-up order or a decision that an agreement is exempt from the competition rules of the EEC under Article 85(3) of the Treaty of Rome.

In Comandate Marine Corp v Pan Australian Shipping Pty Ltd,144 Allsop J identified the common element to the notion of non-arbitrability as being that there was a sufficient element of legitimate public interest in these subject matters making the enforceable private resolution of disputes concerning them outside the national court system inappropriate. A trend may be discerned in favour of the arbitrability of disputes and it has been observed that it is only in extremely limited circumstances that a dispute which the parties have agreed to

refer to arbitration will be held to be non-arbitrable.145 7.54 Thus, certain statutory claims may be of such a nature that a particular state requires such claims to be vindicated in public litigation. This was the issue that arose in the celebrated decision of the United States Supreme Court in Mitsubishi Motors Corporation v Soler Chrysler-Plymouth Inc.146 In this case it was held that an anti-trust claim under the Sherman Act fell within the scope of an international arbitration clause and was capable of being referred to arbitration (or was arbitrable) on the footing that it would be determined in accordance with American law notwithstanding the fact that there was a Japanese choice-of-law clause contained in the parties’ contract. Whether or not a Sherman Act claim would be arbitrable in circumstances where it fell within the scope of the arbitration clause, but where there was evidence that a contractual choice-of-law clause meant that it would never be heard on the merits because the governing law’s choice-of-law rules would never have picked up the statutory claim, is quite another matter. In such circumstances, the combined effect of an arbitration (or exclusive jurisdiction) clause and a [page 168] choice-of-law clause may effectively result in a contracting out of a local statute. Such contracting out, even if held to be consensual, may be held to be illegitimate. 7.55 A trend may be observed, however, in favour of arbitrability. It has been held by the New South Wales Court of Appeal that a Trade Practices Act 1974 claim founded on misleading or deceptive conduct (and which finds its current analogues in the Australian Consumer Law 2010, and various State Fair Trading Acts) may be the subject of a reference to arbitration in England,147 although some doubt was arguably cast upon this conclusion by the later decision of the Full Court of the Federal Court of Australia in Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5).148 That decision, in turn, however, was powerfully criticised by a differently constituted Full Court in Comandate Marine Corp v Pan Australia Shipping Pty Ltd.149 In Passlow v Butmac Pty Ltd,150 it was held that a statutory claim for contribution under the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) and which provided for the award of contribution in such amount ‘as may be found by the court to be just and equitable’ was arbitrable.151 The fact that an arbitrator may not be able to grant

all the relief a court is empowered to grant does not mean that a dispute is nonarbitrable or not capable of settlement by arbitration.152 Thus, a dispute between a trustee and beneficiary has been held to be arbitrable even though the arbitrator could not directly remove the trustee or make a vesting order.153 7.56 It has also been held that an inter partes claim under the corporations legislation is capable of settlement by arbitration: ACD Tridon v Tridon Australia.154 Austin J saw ‘nothing special about the Corporations Act that would distinguish it, as a whole, from other legislation such as the Trade Practices Act’, noting that this analysis seemed to accord with the position reached by United States courts.155 Austin J observed that ‘the statutory powers of a Court under the Corporations Act 2001 are, generally speaking, comparable to the powers exercised by a court under the general law (the power to make a winding up order being an exception [page 169] to this proposition). They are generally not special powers to be exercised having regard to specialist public interest criteria’.156 7.57 An important exception in the corporations context, as observed by Mustill and Boyd above, is where a company is being wound up. The decision of Warren J in A Best Floor Sanding Pty Ltd v Skyer Australia Pty Ltd157 is an illustration of the principle that such a proceeding is not capable of settlement by arbitration. In ACD Tridon v Tridon Australia,158 Austin J also indicated that actions under the corporations legislation to rectify a share register may also not be capable of settlement by arbitration because of their in rem nature. Matters where the remedy sought or resolution of an issue is capable of affecting the rights of third parties not party to the relevant arbitration agreement may also be regarded as not ‘capable of settlement’ by arbitration because those third parties must, for reasons of procedural fairness, have a right to be heard in respect of the remedy or the issue in question.159 In this context, the avoidance of payments deriving from a statutory insolvency regime has been held to be nonarbitrable.160 7.58 A further example of a matter not being capable of settlement by arbitration is supplied by the decision in Metrocall Inc v Electronic Tracking Systems Pty Ltd161 where proceedings were commenced in the Industrial Relations Commission of New South Wales by a party to a licence agreement

which contained a Texan law and arbitration clause. The licensee whose licence had been cancelled invoked the commission’s broad jurisdiction to set aside or vary contracts that were found to be harsh, unfair or unconscionable. In making such an assessment, the commission’s constituent Act directed it to take into account matters of public interest and exercise its powers in a manner that furthered the industrial objectives set out in the Act. For this reason, the commission concluded that parliament intended that it exercise its functions not merely in the manner of ordinary inter partes litigation, but so as to assist in the achievement of industrial objectives set out in the Act. In the circumstances, the commission reached the conclusion, notwithstanding the essentially commercial nature of the dispute, that the matter was not capable of settlement by arbitration and, accordingly, declined to grant the stay sought pursuant to the provisions of the International Arbitration Act 1974.

The nature of the jurisdiction or arbitration agreement 7.59 Another issue that often arises in the context of applications to stay proceedings on the basis of a jurisdiction clause or an arbitration agreement, or to enforce such a clause or agreement by way of anti-suit injunction, relates to the nature of the clause or agreement in question, and in particular, the question whether or not the relevant clause or agreement is exclusive or non-exclusive or, in the case of an arbitration agreement, whether it prescribes the sole (as opposed to an optional) mode of dispute resolution. [page 170] 7.60 The distinction between exclusive and non-exclusive jurisdiction clauses may be of great practical importance. A non-exclusive jurisdiction clause is technically described as a prorogation agreement and simply has the consequence that a defendant in proceedings in the nominated court is disarmed of arguments resisting the court’s jurisdiction. In Berisford plc v New Hampshire Insurance Co,162 it was stated: … the fact that the parties have agreed in their contract that the English courts shall have jurisdiction (albeit a non-exclusive jurisdiction) creates a strong prima facie case that that jurisdiction is an appropriate one; it should in principle be a jurisdiction to which neither party to the contract can object as inappropriate; they have both implicitly agreed that it is appropriate.163

Conversely, where a party seeks a discretionary stay of proceedings in one jurisdiction in favour of the courts of the nominated (non-exclusive) jurisdiction, it will be difficult for a party resisting such an application to raise complaints or difficulties that it may face were proceedings to be stayed in favour of that forum.164 7.61 A non-exclusive jurisdiction clause says nothing as to the parties’ collective attitude to litigation in a forum other than that nominated. As such, while arguments to the effect that a jurisdiction agreement is non-exclusive will be of little moment in an application to stay proceedings in the nominated forum or in a challenge to the grant of leave to serve out of that jurisdiction,165 they may be important in the context of resisting a stay application in favour of the courts of the nominated forum. A successful argument that the jurisdiction agreement represents merely a non-exclusive submission to the nominated court’s jurisdiction may also be vital in resisting an application to restrain foreign proceedings commenced other than in that forum by way of an anti-suit injunction. The applicant’s ‘legal right’ will be reduced on such an interpretation from a right to insist on litigation in the nominated forum to a right to insist that the other party may not oppose jurisdiction in that forum; a right which will by itself not warrant the restraint of proceedings commenced by the other party in another forum. 7.62 Whether a jurisdiction agreement is exclusive or non-exclusive will be a matter of construction.166 Hoerter v Hanover Telegraph Works167 made it clear that questions of interpretation or construction of such agreements are governed by the proper law of the contract. Of course, it should be noted that, in common law countries at least, the content of the proper law will generally be taken to correspond [page 171] to the law of the forum in the absence of proof otherwise, this being always a question of fact.168 7.63 Notwithstanding what appears to be the clear position in principle and with some exceptions,169 rather than asking what construction the proper law would place on the jurisdiction clause, English, American and Australian courts have tended simply to construe the language used by the parties in jurisdiction clauses as though a domestic contract were involved. In this they have followed

the counsel of Sir Samuel Evans in The Cap Blanco,170 that ‘in dealing with commercial documents of this kind, effect must be given, if the terms of the contract permit it, to the obvious intention and agreement of the parties’.171 This is an area where it is notorious that ‘different persons might take different views’.172 An interesting recent example is provided by Armacel Pty Ltd v Smurfit Stone Container Corp,173 which involved the construction of a clause that provided that ‘[t]his Agreement must be read and construed according to the laws of the state of New South Wales, Australia and the parties submit to the jurisdiction of that State’. The United States District Court for the Middle District of Pennsylvania construed this clause as conferring only non-exclusive jurisdiction on New South Wales (and hence did not stay the proceedings before it), whereas Jacobson J, who was asked to grant an anti-suit injunction restraining those proceedings by reference to this clause, would have reached an opposite construction but for the operation of an issue estoppel arising from the prior United States District Court decision. 7.64 Each case will obviously turn on the actual terms to be found in the jurisdiction clause. It is trite that the whole of the clause and indeed, the whole of the contract in which it appears, must be construed to ascertain the proper meaning of the clause. Thus, in FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association,174 whilst Giles J did not consider that the words ‘subject to English jurisdiction’ themselves connoted exclusivity, the composite phrase ‘This Reinsurance is subject to English jurisdiction’ was held to amount to an exclusive submission of all disputes arising under or in connection with the reinsurance contract in question. This conclusion was fortified by the existence of an express choice of English law. In Ace Insurance Ltd v Moose Enterprise Pty Ltd,175 a clause in an insurance policy providing that ‘in relation to any such dispute [concerning policy] the parties agree to submit to the jurisdiction of any competent court in a State or Territory’ was construed, in the circumstances of the case, as conferring exclusive jurisdiction on Australian courts. Important considerations were the fact that the [page 172] parties to the policy were Australian corporations, the policy was made in Australia and provided for Australian law such that the Australian courts had jurisdiction ‘in any event’; that is to say without the need for either of the two (Australian) parties to submit to it. In those circumstances the judge reasoned

that the clause would be superfluous unless it conferred exclusive jurisdiction. In Armacel Pty Limited v Smurfit Stone Corporation,176 Jacobson J would have held that a similar clause using the language ‘submission’ was exclusive but for the fact that he considered himself precluded from so holding by reason of a different interpretation of the same clause reached by a United States court in related proceedings between the same two parties. In Faxtech Pty Ltd v ITL Optronics Ltd,177 a clause providing that ‘the parties submit to the competent courts of England’ was held to be non-exclusive, Middleton J focusing on the fact that the same parties in an earlier agreement had explicitly used the word ‘exclusive’ in their jurisdiction agreement. 7.65 The better view is that the use of the word ‘exclusive’ is not essential for a clause to be construed as having this effect.178 Indeed it has been said that the contrary position would represent ‘a surrender to formalism’,179 although that is the approach that appears to obtain in some United States circuits.180 Canons of construction such as expressio unius exclusio alterius and contra proferentem may play a role in this area181 and it has also been said that especially clear language will be required for jurisdiction clauses in certain types of contract to be held to be exclusive.182 On the other hand, the judgment of the English Court of Appeal in Sohio Supply Co v Gatoil (USA) Inc,183 albeit in relation to an English jurisdiction clause, arguably introduces a presumption that in freely negotiated and arms’ length commercial contracts, any ambiguity in the jurisdiction clause should be resolved in favour of an exclusive interpretation. Staughton LJ stated that he could: … think of no reason at all why they [the parties] should choose to go to the trouble of saying that the English Court should have non-exclusive jurisdiction. I can think of every reason why they should choose that some Court, in this case the English Court, should have exclusive jurisdiction.184

7.66 Two reasons that have been suggested, however, are that such a clause may have been intended simply to put the existing jurisdiction beyond doubt, or that it [page 173] may have been inserted in a boilerplate fashion without either party in fact adverting to it.185 7.67 It suffices to note that it is not unusual for judges to take different interpretations of the same clause.186 Only the most explicit of exclusive

jurisdiction clauses will be totally immune from challenge and, even then, a perceived clarity may be lost either in translation or in a decision by the court seized to examine only one of several language versions of the contract. This was the case in YTC Universal Ltd v Trans Europa SA187 where only the Spanish but not the English version of the contract included an exclusive jurisdiction clause for Spain. In refusing to set aside an order for service out of the jurisdiction, the Court of Appeal relied upon the English version of the contract. 7.68 A related question that has arisen in a number of cases where the parties have specified for arbitration is whether or not, as a matter of construction, the arbitration clause was intended to be mandatory or optional, at the instance of one or both parties. Such questions obviously turn upon the proper construction of the contract in any given case, but there is nothing objectionable in principle to parties making provision for arbitration as an optional form of dispute resolution. The dispute resolution clause in Paharpur Cooling Towers Ltd v Paramount (WA) Ltd188 provides an example. The important point to note, as illustrated by HIH Casualty and General Insurance Ltd (in Liq) v RJ Wallace,189 is that where an option to arbitrate has not been exercised, the otherwise mandatory requirement to stay proceedings under s 7(2) of the International Arbitration Act 1974 is not triggered.

Scope and construction of the jurisdiction or arbitration agreement 7.69 Another issue which frequently arises in the context of applications to stay proceedings (or for an anti-suit injunction) by reference to an exclusive jurisdiction clause or arbitration agreement, relates to the scope of the clause or arbitration agreement in question. One can speak of both ‘subject matter scope’ and ‘party scope’.190 As to subject matter scope, the most common context in which this issue is encountered is where the claim includes non-contractual counts, whether in tort, restitution or statutory. Indeed, a plaintiff anxious (for tactical reasons) to [page 174] circumvent the operation of an exclusive jurisdiction clause or arbitration agreement may confine its claim to non-contractual counts in an attempt to

thwart a stay application. Its success in so doing will turn on the proper construction of the scope of the clause in question, it being noted that there is an infinite variety of forms which a jurisdiction clause or arbitration agreement may take. 7.70 Whether or not a dispute or claim falls within the scope of a jurisdiction or arbitration clause is properly a question for the proper law of the contract.191 Diplock LJ’s decision in The Sindh192 represents a model application of this approach. In this case, the plaintiff sought to escape from a French exclusive jurisdiction clause by framing its claim in England in tort rather than contract. Diplock LJ stated that: … it being therefore now undisputed that the proper law of the contract, which included the exclusive jurisdiction clause, was French; it being undisputed that, interpreted according to French law, the clause covered claims which the plaintiffs are seeking to put forward in the English action, no question of law … appears to me to arise.193

The English proceedings were stayed.194 7.71 Debate as to the subject matter scope of a jurisdiction or arbitration clause in the sense of what type of claims the parties intended would be caught by such a clause necessarily focuses upon the width of the language of the clause in question. Such language may vary from, for example, the apparently narrow ‘all disputes arising under this contract are to be submitted to arbitration’ to the much broader ‘all disputes arising under, out of or from, relating to or in any way whatsoever connected with this contract are to be submitted to arbitration’. On an ordinary construction of these two clauses, it may be thought that the former would not capture disputes arising out of pre-contractual representations, whereas the latter would.195 At the end of the day, it is always a question of construing the language of the particular jurisdiction or arbitration clause in the context of the contract as a whole.196 7.72 A clear approach to questions of construction of both exclusive jurisdiction clauses and arbitration agreements has emerged in both Australia and England. [page 175] There is a strong predisposition towards a broad and generous interpretation of matters of subject matter scope on the footing that parties (and especially parties to a commercial contract) should not be taken to have intended that certain types

of claim should be heard exclusively in one court or, as the case may be, by arbitration (those strictly falling within the scope of the clause) but that others need not be.197 Such an approach to construction fosters the goal of ‘one-stop adjudication’198 and minimises the scope for inconsistent decisions arising from potentially concurrent proceedings. Nor is any relevant distinction to be drawn between arbitration agreements and exclusive jurisdiction agreements: the same broad approach is equally applicable to both.199 7.73 In Francis Travel Marketing Pty Limited v Virgin Atlantic Airways,200 Gleeson CJ observed that: When the parties to a commercial contract agree, at the time of making the contract, and before any disputes have yet arisen, to refer to arbitration any dispute or difference arising out of the agreement, their agreement should not be construed narrowly. They are unlikely to have intended that different disputes should be resolved before different tribunals, or that the appropriate tribunal should be determined by fine shades of difference in the legal character of individual issues, or by the ingenuity of lawyers in developing points of argument.

In the same case, his Honour stated: [I]t is consistent with the modern policy of encouragement of various forms of alternative dispute resolution, including arbitration, mediation and conciliation, that courts should facilitate, rather than impede, agreements for the private resolution of all forms of dispute, including disputes involving claims under statutes such as the Trade Practices Act 1974 (Cth).201

7.74 A leading example of the broad approach to questions of construction of the scope of jurisdiction and arbitration clauses is supplied in The Pioneer Container.202 In that case, in response to an argument that claims in bailment did not fall within the scope of an exclusive jurisdiction clause in relation to ‘claims under the bill of lading’, Lord Goff trenchantly referred to the ‘extreme technicality’ of such an argument and stated that such an argument ‘would lead to refinements and inconsistencies which are unacceptable in a commercial context’.203 In The Delos,204 it was held that where a party agrees to submit to arbitration disputes arising under a bill of lading, that submission necessarily entails the submission of such claims as [page 176] are interdependent with pure contract claims such as, in the present case, claims in bailment. 7.75 A recent authoritative articulation of the proper approach to construction

of the scope of both jurisdiction clauses and arbitration agreements is that of Allsop J (with whom Finn and Finkelstein JJ agreed) in Comandate Marine Corp v Pan Australia Shipping Pty Ltd:205 The authorities … are clear that a liberal approach should be taken. That is not to say that all clauses are the same or that the language used is not determinative. The court should, however, construe the contract giving meaning to the words chosen by the parties and giving liberal width and flexibility to elastic and general words of the contractual submission to arbitration. This liberal approach is underpinned by the sensible commercial presumption that the parties did not intend the inconvenience of having possible disputes from their transaction being heard in two places. This may be seen to be especially so in circumstances where disputes can be given different labels, or placed into different juridical categories, possibly by reference to the approaches of different legal systems. The benevolent and encouraging approach to consensual alternative noncurial dispute resolution assists in the conclusion that words capable of broad and flexible meaning will be given liberal construction and content. This approach conforms with a common-sense approach to commercial agreements, in particular when the parties are operating in a truly international market and come from different countries and legal systems and it provides appropriate respect for party autonomy.206

7.76 Difficult issues of construction may also arise from the fact that a jurisdiction clause, rather than identifying in specific terms the court or courts of a particular country, employs a formulaic reference such as ‘any dispute arising under this bill of lading shall be decided in the country where the carrier has its principal place of business’. It comes as no surprise that in a world of multinational corporations, companies legislation that permits elaborate corporate structures, and differing [page 177] revenue regimes which often dictate a corporation’s official location, identifying a company’s principal place of business is not always a simple exercise; as with other questions of construction, this is an area where judicial opinions may differ. Such judicial differences are illustrated by The Rewia207 where the English Court of Appeal held, with critical significance for the venue of the litigation, that the carrier’s principal place of business was Hamburg and not Hong Kong, as Sheen J had held at first instance. In coming to this conclusion (which in principle should have been, but was not, governed by the proper law of the contract), Leggatt LJ remarked that the ‘principal place of business is not necessarily the place where most of the business is carried out’,208 an observation that is not calculated to engender certainty in this area of law. 7.77 An unusual but interesting case which involved the construction of a

jurisdiction clause was Carvalho v Hull, Blyth (Angola) Ltd.209 Here the argument related neither to the question of whether or not the clause was exclusive nor to whether the claim fell within the clause’s scope. Rather, the question was whether the courts to which the parties had agreed to submit their disputes still existed. It was successfully argued that the courts which existed in post-independence Angola were not the courts to which the plaintiff had agreed to submit. This qualitative difference was manifested by the absence, postindependence, of any appeal on a point of law to the Supreme Court in Lisbon,210 or by the fact that the system for judicial appointments had completely changed.211 7.78 Turning to questions of party scope as opposed to subject matter scope of an exclusive jurisdiction or arbitration clause, questions may arise as to which parties have the benefit of or may enforce the clause. The seemingly obvious answer to such a question, viz. the parties to the contract in question, may become more complex in circumstances where a number of related companies are involved in a particular transaction or commercial arrangement and their involvement is contemplated by the contract containing the exclusive jurisdiction clause, albeit that not all of those companies are legally party to that contact. In such a case, according to Spigelman CJ in Global Fund Partners Ltd v Babcock & Brown Ltd,212 ‘there are non-parties and non-parties’. The Chief Justice continued: In a context where the very contract confers rights [of indemnity] on identified non-parties, the choice of law and exclusive jurisdiction clauses should be construed as binding the parties with respect to proceedings in which such an indemnity may arise. Furthermore, the principles underlying the conclusion that such a [exclusive jurisdiction] clause should not be narrowly construed … apply at least to include claims against non-parties who are so closely connected with the implementation of the contract …213

[page 178] This reasoning and the approach to construction disclosed in this case, drawing some support from the decision of Lord Scott in Donohue v Armco Inc,214 is likely to be of particular significance where a plaintiff, anxious to avoid the operation of an exclusive jurisdiction clause, names a number of parties as defendants, not all of whom are strictly party to the jurisdiction agreement. A different and arguably more orthodox analysis leading to the same result as was obtained in Global Fund Partners Ltd v Babcock & Brown Ltd is that, where defendant A has the benefit of a widely drawn exclusive jurisdiction

clause but the plaintiff sues not only defendant A but also defendants B, C and D on claims all of which may be said to relate to or arise out of the contract to which only defendant A is a party, then defendant A may seek a stay of the entirety of the proceedings, ie not only the claims against it, by reason of the contractual promise in the exclusive jurisdiction clause to which it is a party. This involves construing the exclusive jurisdiction clause as a promise to the contracting party to bring all claims against any other defendant and which fall within the subject matter scope of the relevant clause in the nominated jurisdiction. Just such reasoning appears to have been applied by Emmett J in Yperion Technology SAS v Luminex Pty Ltd.215

Discretionary considerations 7.79 As noted at the outset of this chapter, an important distinction is to be drawn between agreements exclusively to submit disputes to the courts of a foreign country, on the one hand, and valid and binding agreements to submit disputes to arbitration in the foreign country, on the other. In the latter case, a stay must be granted on the application of a party to the agreement and there is no scope for retention of jurisdiction based on an exercise of the court’s discretion.216 In the former case, however, it is open to a court to refuse to grant a stay of proceedings commenced in the face, and in breach, of an exclusive jurisdiction agreement, although it is well established that ‘strong reasons’217 are required before the discretion will be exercised against the grant of a stay.218 7.80 In Huddart Parker Ltd v Ship ‘Mill Hill’,219 Sir Owen Dixon expressed the view that the courts should exercise a ‘strong bias in favour of maintaining the special bargain’ constituted by an exclusive jurisdiction agreement, consistent with the maxim pacta sunt servanda. More recently, in Akai Pty Ltd v People’s Insurance [page 179] Co Ltd,220 all justices of the High Court, although divided on other issues, agreed that the party who seeks to proceed despite a foreign exclusive jurisdiction clause has the burden of satisfying the court that there are strong grounds for proceeding in the forum.221 It has been correctly observed that the case law with respect to exclusive jurisdiction clauses is clear and unequivocal,

reflecting important policy considerations, namely that parties should be held to their contractual bargains and that resolution of disputes arising from contractual arrangements should occur in a coherent and consistent manner and as expeditiously and efficaciously as possible.222 7.81 In The Eleftheria,223 in a passage which Allsop J stated in Incitec Limited v Alkimos Shipping Corp224 could be taken to be the law in Australia, Brandon J held that: (I) Where plaintiffs sue in England in breach of an agreement to refer disputes to a foreign court, and the defendants apply for a stay, the English court, assuming the claim to be otherwise within its jurisdiction, is not bound to grant a stay but has a discretion whether to do so or not. (II) The discretion should be exercised by granting a stay unless strong cause for not doing so is shown. (III) The burden of proving such strong cause is on the plaintiffs. (IV) In exercising the discretion the court should take into account all the circumstances of the particular case.

7.82 Somewhat more controversially, however, Brandon J went on to state that: In exercising its discretion, the court should take into account all the circumstances of the particular case. In particular, but without prejudice to [the above], the following matters, where they arise, may properly be regarded: (a) In what country the evidence on the issues of fact is situated, or more readily available, and the effect of that on the relative convenience and expense of trial as between the English and foreign courts. (b) Whether the law of the foreign court applies and, if so, whether it differs from English law in any material respects. (c) With what country either party is connected, and how closely. (d) Whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages. (e) Whether the plaintiffs would be prejudiced by having to sue in the foreign court because they would: (i) be deprived of security for their claim; (ii) be unable to enforce any judgment obtained; (iii) be faced with a time bar not applicable in England; or (iv) for political, racial, religious or other reasons be unlikely to get a fair trial.225

7.83 Subsequent decisions have, it is submitted correctly, called certain of these considerations into doubt. In particular, considerations of inconvenience and procedural disadvantages in the nominated forum which were capable of being [page 180] foreseen at the time of agreement to the exclusive jurisdiction clause, should not legitimately be permitted to be taken into account as part of a discretionary exercise as to whether or not to enforce the exclusive jurisdiction clause by means of a stay of proceedings. In British Aerospace plc v Dee Howard Co,226 a case involving what was construed to be an exclusive jurisdiction clause in favour of the English courts but in which the defendant sought a stay of proceedings on the basis that it would be more convenient for proceedings to take place in Texas where it (the defendant) had already commenced

proceedings, Waller J stated: It seems to me on the language of the clause that I am considering here, it simply should not be open to DHC to start arguing about the relative merits of fighting an action in Texas as compared with fighting an action in London, where the factors relied on would have been eminently foreseeable at the time that they entered into the contract … it seems to me that the inconvenience for witnesses, the location of the documents, the timing of a trial, and all such like matters, are aspects which they are simply precluded from raising.227

7.84 In The Media,228 notwithstanding the fact that proceedings in Calcutta would be ‘needlessly expensive and, I think, highly inconvenient’, Lord Merrivale stated that ‘those are collateral considerations. It was for the goodsowners to appreciate what was the agreement that they had made’.229 To similar effect is the more recent observation by Allsop J in Incitec Limited v Alkimos Shipping Corp:230 To the extent that the operation of the exclusive jurisdiction clause causes financial or forensic inconvenience to the party which bound itself to the clause, that, of itself, is to be seen as only the direct consequence of the bargain entered and, generally, can be set to one side. What really are of importance in weighing against the operation of the exclusive jurisdiction clause are: (a) the inconvenience, if any, whether financial or other, caused to third parties; (b) the effect, if any, upon the due administration of justice; and (c) any other appropriate public policy consideration that can be discerned in all the circumstances.

7.85 It would be unusual for the parties to an exclusive jurisdiction clause not to have had the convenience or otherwise of the nominated forum in contemplation at time of entry into the contract, especially when such clauses often bear on the ultimate contract price. Even where the inconvenience of the nominated forum was not adverted to by the parties, it is nonetheless difficult to see why the parties should not be held to their bargain, short of their being able to point to some factor vitiating or otherwise invalidating the agreement. The United States Supreme Court in The Chaparral saw no reason to take into account factors of convenience in such [page 181] circumstances.231 In The Chaparral, it was stated that a stay would only be declined if trial in London would be ‘so manifestly and gravely inconvenient to Zapata that it will be effectively deprived of a meaningful day in court’.232 In that case however, the Supreme Court drew something of a connection between ‘serious inconvenience’ and the reasonableness of the exclusive jurisdiction clause,233 having earlier noted that a stay would not be granted if it were clearly

shown that enforcement would be ‘unreasonable and unjust’.234 7.86 Except in circumstances where there has been an unforeseeable change in the procedure of the courts submitted to or where the general political situation of the country has altered radically,235 the exploitation of fairly bargained for procedural advantages through the enforcement of exclusive jurisdiction clauses should be permitted, even where those advantages relate to the type of remedies available in the foreign jurisdiction,236 time bars,237 time delays,238 exchange control restrictions,239 and other aspects of the procedure of the foreign court such as interest on damages and cost of proceedings.240 After all, the correlative disadvantages for the breaching plaintiff must, ex hypothesi, have been foreseen, or were at the very least foreseeable, at the time of entry into the contract.241 7.87 Brandon J’s fourth discretionary consideration identified in The Eleftheria, namely ‘whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages’,242 was implicitly rejected by Allsop J in Incitec [page 182] Limited v Alkimos Shipping Corp,243 who observed that a party seeking to enforce an exclusive jurisdiction clause: … does not have to justify its choice. It may be for tactical gain. So be it. That is the fruit of its bargain. It may well put parties in an unseemly position to have to explain to a court which is not the parties’ forum of choice why they did not want to arbitrate or litigate in a place other than that which they have chosen in their bargain. [The parties] may or may not have had all sorts of reasons why they wanted their time charter litigation in London or why they were prepared to agree to such. It may have been out of an abiding trust in the English arbitration system or courts or in English lawyers, or it may have been out of distrust of courts or lawyers of other countries; it may have arisen from habit; it may have arisen from one or more other reasons. Generally speaking, a party, having bargained for a place of dispute resolution, should not have to go into its private reasons for agreeing to that place and for not wanting to litigate elsewhere.

7.88 There are, of course, circumstances, albeit limited, where it is quite legitimate and proper for a common law court to entertain proceedings in the face of an exclusive jurisdiction clause by refusing a stay. These are essentially encapsulated in Brandon J’s factor (e) (iv), namely where ‘for political, racial, religious or other reasons, [the plaintiff will] be unlikely to get a fair trial’.244 Cases such as Ellinger v Guiness, Mahon & Co245 and Carvalho v Hull, Blyth (Angola) Ltd246 join others in the conflict of laws, of which Oppenheimer v Cattermole247 is perhaps the most notable example, where flexibility is

demonstrated in order to avoid a result, either substantive or jurisdictional, which would result in the denial of a fundamental human right such as a fair trial.248 Ellinger v Guiness, Mahon & Co249 was a case where there was an exclusive jurisdiction clause in favour of the German courts which the English courts refused to enforce because of the high probability that the plaintiff’s Jewish religion would deny him the opportunity of a fair trial.250 7.89 One circumstance where a court may decline to enforce an exclusive jurisdiction clause whether by way of a stay of proceedings or anti-suit injunction is where to do so would involve the fracturing or fragmentation of litigation. This is likely to be the case in circumstances where the dispute involves parties in addition to those party to the exclusive jurisdiction clause and who may only be amenable to [page 183] suit in a jurisdiction other than that identified in the exclusive jurisdiction clause. In Donohue v Armco Inc251 Lord Bingham noted that: … the authorities show that the English Court may well decline to grant an injunction or a stay, as the case may be, where the interests of parties other than the parties bound by the exclusive jurisdiction clause are involved or grounds of claim not the subject of the clause are part of the relevant dispute so that there is a risk of parallel proceedings and inconsistent decisions.

The significance of Donohue v Armco Inc lies in the fact that an English court declined to give effect to an exclusive English jurisdiction clause because, in a multi-party dispute, a number of the litigants and potential litigants were not party to the jurisdiction agreement and the centre of gravity of the dispute between all parties, viewed globally, was New York. Examples of the principle of which Lord Bingham spoke have traditionally involved English courts declining to give effect to exclusive jurisdiction clauses nominating courts of another forum by refusing to stay proceedings commenced in England in breach of such a clause. A further recent example, the decision of the English Court of Appeal in Bouygues Offshore SA v Caspian Shipping Co (Nos 1, 3, 4 and 5),252 is to much the same effect.253 7.90 A similar approach has been taken in Australia. In Incitec Limited v Alkimos Shipping Corp254 Allsop J drew attention to the intersection of two powerful considerations in international litigation: first, the desire of courts to hold commercial parties to their bargain in terms of exclusive jurisdiction

clauses; and second, the desire of courts to avoid disruption and multiplicity of litigation, in particular, a desire to avoid parallel proceedings and the risk of inconsistent findings, and to avoid the causing of inconvenience to third parties. He resolved the finely balanced conundrum between these competing policies in favour of the latter, noting that: … the very existence of the possibility, if not probability, of duplicated litigation is, on modern authority of the highest persuasive stature, a cogent consideration in assessing the effect of an exclusive jurisdiction clause. This is for good and powerful reasons based on the cost and inconvenience of litigation and the desire not to foster the circumstances of courts coming to different conclusions about the same facts on perhaps different, or even the same, evidence.

7.91 In The MC Pearl255 Rix J observed that: … this is indeed a paradigm case for the concentration of all the relevant parties’ disputes in a single jurisdiction. If in such a case a host of different jurisdiction clauses were to be observed, the casualty at the root of the action would become virtually untriable. The action would fragment and reduplicate, at vast cost.256

Paradoxically, where what is provided for is arbitration rather than exclusive jurisdiction, there is no scope for the discretionary refusal to enforce the arbitration [page 184] clause unless the view were adopted that a particular dispute was so entwined with a related dispute involving a party not party to the arbitration agreement that it could not be said that the ‘matter’ being sought to be referred to arbitration was ‘capable of settlement by arbitration’ with the consequence that the New York Convention is not applicable. 7.92 Each case will necessarily turn on its own facts. In Donohue v Armco Inc,257 the House of Lords was acutely conscious of the fact that, by refusing to enforce the exclusive jurisdiction clause by anti-suit injunction, it was depriving the claimant of part of his bargain with the moving party in the New York proceedings. This was a matter that had to be weighed closely in the equation. Two strong policies were in tension — the wish to uphold commercial bargains, on the one hand, and the desire to avoid multiple proceedings with attendant duplication, expense and the possibility of inconsistent decisions. The House was able to accommodate its concerns, in part at least, by imposing a condition upon the moving party in the New York proceedings that Mr Donohue would be

protected from liability under the RICO Act in New York, and by receiving an acknowledgement from that party that it could be sued, presumably in England, for damages for breach of contract, namely the English exclusive jurisdiction clause.258 7.93 In Faxtech Pty Ltd v ITL Optronics Ltd,259 Middleton J indicated that even if the jurisdiction clause there under consideration gave English courts exclusive jurisdiction, he would not grant a stay as there was ‘no doubt that the claim for misleading or deceptive conduct [brought in the Federal Court] can only be dealt with in this court and… the relief sought under the Australian Consumer Law 2010 can only be obtained in this court’. It is not clear from the reasons for judgment that his Honour reached these conclusions on the basis of expert evidence of English law or as a matter of construction of the Australian legislation. As to the former, there was no reference to any such evidence having been given (the expert evidence being apparently confined to the question whether the jurisdiction clause was exclusive or not) and there is no obvious reason in principle why, subject to questions of characterisation, a claim under the Australian Consumer Law 2010 would not be justiciable in England. If, on the other hand, Middleton J’s conclusion was based on a construction of the legislation, namely that relief for misleading or deceptive (or statutory unconscionable conduct, by analogy) can only be given by an Australian court, such a construction would provide a ready recipe for circumvention of exclusive jurisdiction agreements. The construction, which was strictly obiter given his Honour’s conclusion that the jurisdiction clause under consideration was not in fact exclusive on its proper construction, is inconsistent with a long-standing line of authority that claims under the Trade Practices Act 1974 and its analogues [page 185] are arbitrable.260 If such claims are arbitrable, there is no reason why, as a matter of principle, they may not be justiciable in a foreign court if that court’s rules of characterisation and choice of law permit such statutory claims to be enforced in the foreign jurisdiction. It follows that, whilst Middleton J’s opinion that, if a particular claim was not able to be litigated in the court given exclusive jurisdiction by the parties’ agreement, this would provide a discretionary reason against the grant of a stay, was sound and unexceptionable, the premise of this opinion with regard to the justiciability of claim for relief in respect of misleading and deceptive conduct in non-Australian courts is strongly open to

question. _________________________ 1.

See Chapter 3.

2.

See Chapter 40.

3.

See Chapter 41.

4.

See International Arbitration Act 1974, Sch 1, Art II(2); Sch 2, Art 7(2). For a discussion of the requirement that an arbitration agreement be in writing, see Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45

5.

This Act, known prior to its amendment in 1989 as the Arbitration (Foreign Awards and Agreements) Act 1974 (Cth), gives effect, in Pt II, to Australia’s obligations under the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (‘the New York Convention’). Part III enacts as part of the law of Australia the UNCITRAL Model Law on International Commercial Arbitration 1985. The constitutional validity of the Act was upheld in TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (2013) 295 ALR 596; 87 ALJR 410. Both the New York Convention and the Model Law deal with the staying of actions brought in breach of an arbitration agreement and with the recognition and enforcement of arbitral awards (as to which, see Ch 43). The Act defines when there is an ‘arbitration agreement’ for the purposes of its engagement.

6.

Global Fund Partners Ltd v Babcock & Brown Ltd (2010) 79 ACSR 383.

7.

The enforcement of arbitral awards pursuant to the International Arbitration Act 1974 is dealt with in Chapter 43.

8.

See generally, AS Bell, Forum Shopping and Venue in Transnational Litigation, Oxford University Press, 2003, Ch 2.

9.

See further at 7.79 below.

10. Part II of the International Arbitration Act 1974 (Cth) is defined in s 7(1) as being applicable to the following situations where: (a) the procedure in relation to the arbitration is governed by the law of a foreign country which is a party to the Convention; or (b) the procedure is governed by the law of a foreign country that is not a party to the Convention, and a party to the agreement was at the time of entry into the agreement, domiciled or ordinarily resident in Australia or is an Australian government; or (c) a party to the arbitration agreement is the government of a foreign country that is a party to the Convention or of a part or territory thereof; or (d) a party to the arbitration agreement is at the time of entry into the agreement domiciled or ordinarily resident in a foreign country that is a party to the Convention. This definition excludes an arbitration that is entirely domestic to Australia. It also excludes an international arbitration that is governed by Australian procedure, but where the non-Australian parties are domiciled or ordinarily resident in a non-convention country. Finally, it excludes an international arbitration where neither the procedure nor the parties are connected with a convention country. 11. Flakt Australia Ltd v Wilkins and Davies Construction Co Ltd (1979) 25 ALR 605 at 608, 613; Elders CED Corporation v Dravo Corporation (1984) 59 ALR 206 at 207; Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332 at 350; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) 90 FCR 1 at 12–13; Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 at [43]. Although s 7(2) makes a stay of proceedings mandatory, Gillard J of the

Supreme Court of Victoria held in Abigroup Contractors Pty Ltd v Transfield Pty Ltd [1998] VSC 103 that it is possible for the parties to a contract to agree that the Act shall not apply to their arbitration agreement. 12. ‘Matter’ in this context has been defined as ‘any claim or relief of a kind proper for determination in a court’. The question is whether the proceedings involve a right or liability in controversy that can be referred to arbitration — it does not refer to every mere issue that might fall for decision in a court: Flakt Australia Ltd v Wilkins & Davies Construction Co Ltd (1979) 2 NSWLR 243 at 250 per McLelland J; Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332 at 351 per Deane and Gaudron JJ; Hodgetts v Shipowners’ Mutual Protection and Indemnity Association (Luxembourg) [1999] 2 Qd R 58 (QCA); Recyclers of Australia Pty Ltd v Hettinga Equipment Inc (2000) 100 FCR 420 at 424 per Merkel J. The ‘matter’ is ascertained by reference to the subject matter of the dispute and the substantive questions for determination: Recyclers at 426. Its scope is to be ascertained from the pleadings and from the underlying subject matter upon which the pleadings, including the defence, are based; the manner in which the claim is pleaded is important but not determinative: Recyclers at 426. 13. See 7.53 below. A claim under the Trade Practices Act 1974 is not only ‘capable of settlement by arbitration’ but, it has also been held, may be so described even though the evidence may be that the arbitral tribunal, applying appropriate choice of law rules, would apply a substantive law other than Australian law and thus not entertain the Trade Practices Act 1974 claims: Transfield Philippines Inc v Pacific Hydro Ltd [2006] VSC 175 at [73]. This reasoning would apply mutatis mutandis to claims under the Australian Consumer Law 2010. 14. In Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5), Emmett J (with whom Branson J agreed) held that although s 7(2) of the Act provides for a mandatory stay, it is not unconstitutional for that reason on the basis that, although expressed to impose a duty on the court, the subsection in substance confers a right on the party seeking the stay, and so does not purport to direct the manner and outcome of the exercise by the Federal Court of its jurisdiction: (1998) 90 FCR 1 at 13. 15. Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332 at 345 per Brennan and Dawson JJ, Toohey J concurring. 16. International Arbitration Act 1974 s 7(2)(b). The court also has power to make interim or supplementary orders in relation to any property that is the subject of the matter referred to arbitration: International Arbitration Act 1974 s 7(3). 17. Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) 90 FCR 1. 18. Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) 90 FCR 1. 19. O’Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 601 at 621-622; WesTrac Pty Ltd v Eastcoast OTR Tyres Pty Ltd (2008) 219 FLR 461 at [30]; Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 at [90]–[101]. 20. Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 at [92]–[100]. 21. See 7.28. 22. International Arbitration Act, Sch 2, Art 1(2). 23. It may be noted that s 7(2) of the Act (see 7.5 above) does not, unlike Art 8 of the Model Law, require that the application for a stay be made at the latest when filing the first statement of defence on the substance of the dispute. See Eisenwerk Hensel Bayreuth Dipl-Ing Burkhardt GmbH v Australian Granites Ltd [2001] 1 Qd R 461. 24. Cf note 10 above. 25. International Arbitration Act 1974 (Cth) Sch 2, Art 1(1). Under Art 1(3) an arbitration is defined as international if:

(a) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different States; or (b) one of the following places is situated outside the State in which the parties have their places of business: (i)

the place of arbitration if determined in, or pursuant to, the arbitration agreement;

(ii) any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected; or (c) the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country. 26. (1996) 133 FLR 417 at 427–8, 439. 27. Eisenwerk Hensel Bayreuth Dipl-Ing Burkhardt GmbH v Australian Granites Ltd [2001] 1 Qd R 461. 28. See Chapter 9 below for a detailed discussion of anti-suit injunctions. 29. As has already been noted, where a dispute falls within the scope of an applicable international arbitration agreement, there is no discretion not to stay the proceedings. A discretion remains, however, in the case of an application to restrain foreign proceedings commenced in breach of an arbitration agreement by means of an anti-suit injunction as well as in the case of an application to grant a stay of proceedings commenced in breach of a purely domestic arbitration agreement. 30. For an example of a case where it was argued (unsuccessfully) that an arbitration agreement was void for uncertainty on the basis that it lacked essential terms, see Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd (2011) 277 ALR 415. 31. [1967] 2 QB 590. 32. See note 31 above at 598, 603. 33. See note 32 above. 34. (1988) 165 CLR 197. 35. See note 34 above at 225. Wilson and Toohey JJ, with whom Deane J agreed on this point (at 256), also applied Australian law although they did not expressly advert to the choice of law issue (at 202–8). 36. See note 34 above at 228. 37. See note 34 above at 261. See also Shanghai Foreign Trade Corp v Sigma Metallurgical Co Pty Ltd (1996) 133 FLR 417. 38. Compagnie Tunisienne de Navigation SA v Compagnie d’Armement Maritime SA [1971] AC 572. 39. See, for example, AJE Jaffey, ‘Offer and Acceptance in the English Conflict of Laws’ (1975) 24 ICLQ 603; DF Libling, ‘Formation of International Contracts’ (1979) 42 MLR 169; A Thomson, ‘A Different Approach to Choice of Law in Contract’ (1980) 43 MLR 650; M Garner, ‘Formation of International Contracts — Finding the Right Choice of Law Rule’ (1989) 63 ALJ 751; A Briggs, ‘The Formation of International Contracts’ [1990] LMCLQ 192. 40. (1988) 165 CLR 197 at 225. 41. Briggs, note 39 above at 197–9. 42. Briggs, note 39 above at 192. 43. For a discussion of the matters germane to the existence of an agreement to arbitrate, see Mustill MJ and Boyd SC, Commercial Arbitration, 2nd ed, Butterworths, London, 1989, pp 105–8. 44. [1998] NSWSC 481.

45. [1996] 2 Lloyd’s Rep 437. 46. (1998) 89 FCR 166. 47. [1988] 2 All ER 328. 48. See note 47 above at 335. 49. [1989] 2 Lloyd’s Rep 182. 50. See note 49 above at 183. See also his earlier decision in The El Amria and El Minia [1981] 2 Lloyd’s Rep 539, reversed on appeal: [1982] 2 Lloyd’s Rep 28. 51. See MC Pryles, ‘Comparative Aspects of Prorogation and Arbitration Agreements’ (1976) 25 ICLQ 543 at 552–3, but see Venter v Ilona MY Ltd [2012] NSWSC 1029 where the law of the forum was held to be the applicable law by reference to the observations of Brennan J and Gaudron J in Oceanic Sun Line Shipping referred to in 7.11 above. 52. [1982] 1 Lloyd’s Rep 151. 53. [1982] 2 Lloyd’s Rep 28 at 31. See also The Griesheim (Hong Kong Court of Appeal, No 70 of 1983, unreported), referred to by R Margolis, ‘Staying an Action Because the Foreign Law is Ambiguous’ [1994] LMCLQ 30 at 32–3; and Pan Lloyd Shipping Ltd v Cho Hung Bank [1992] 1 HKLR 356 at 361. 54. See W Tetley, Marine Cargo Claims, 3rd ed, Butterworths, Toronto, 1988, p 783; and for an example of such an argument, Agro Co of Canada Ltd v The Regal Scout [1984] 2 FC 851. For an English case where such an argument was unsuccessful, see The Nerano [1996] 1 Lloyd’s Rep 1. 55. [1996] AC 650. 56. [1994] 2 AC 324. 57. (2008) 168 FCR 169. 58. [1912] AC 1. 59. See, for example, Modern Building Wales Pty Limited v Limmer & Trinidad Co Limited [1975] 1 WLR 1281, a decision of the Court of Appeal in which it was held that an arbitration clause was incorporated into a construction contract by general terms without any specific reference being made to the arbitration clause. Also compare The Annefield [1971] P 168 at 173, but note that TW Thomas was referred to with apparent approval by the Privy Council in The Mahkutai [1996] AC 650 at 666–7 and classically applied in The Delos [2001] 1 Lloyd’s Rep 703. 60. [1997] CLC 168. 61. [1997] CLC 168. 62. Moore-Bick J identified this distinction in AIG Europe SA v QBE International Insurance Ltd [2001] 2 Lloyd’s Rep 268 at 273. 63. AIG Europe (United Kingdom) Ltd v The Ethniki [2000] 2 All ER 566. See also OK Petroleum AB v Vitol Energy SA [1995] 2 Lloyd’s Rep 160; Assicurazioni Generali SpA v Ege Sigorta A/S (Colman J, 31 July 2001, unreported). See also Reinsurance Australia Corporation Ltd v HIH Casualty and General Insurance (2003) 254 ALR 29 at 64. 64. [1999] 2 Lloyd’s Rep 649 at 657. 65. This point was not considered by the House of Lords which, as has been noted elsewhere, declined to enforce the exclusive jurisdiction clause by means of an anti-suit injunction: [2002] 1 Lloyd’s Rep 425. 66. This includes questions of illegality: The Amazonia [1990] 1 Lloyd’s Rep 236 at 249 per Dillon LJ, although as that case illustrates, any chosen proper law may itself be illegal. 67. See further Chapter 17.

Where an arbitration tribunal errs on a question of foreign law, and an appeal from the arbitration lies 68. only in respect of errors of law, the foreign law error (involving as it does a question of fact) may not be appellable: see Re Egmatra AG v Marco Trading Corp [1999] 1 Lloyd’s Rep 862. 69. Mackender v Feldia AG [1967] QB 590 at 598, 603–4. 70. Harbour Assurance Co (United Kingdom) Ltd v Kansa General International Insurance Co Ltd [1993] QB 701. See also, in the United States, Prima Paint Corporation v Flood & Conklin Manufacturing Co, 388 US 395 (1967). For an example of a direct assault upon an exclusive jurisdiction agreement, anticipating and bypassing the separability doctrine, see Commonwealth Bank of Australia v White; ex parte The Society of Lloyd’s [1999] 2 VR 681. 71. (1997) 41 NSWLR 559. 72. See also Ash v Lloyd’s Corp (1991) 6 OR (3d) 235 at 244–8; approved at (1992) 9 OR (3d) 755 at 758; Ferris v Plaister (1994) 34 NSWLR 474; Sonantrach Petroleum Corporation v Ferrell Int Ltd [2001] 1 All ER Comm 627; Comandate Marine Corp v Pan Australia Shipping Pty Limited (2006) 157 FCR 45. 73. In the context of arbitration agreements, s 7(5) of the International Arbitration Act 1974 provides that a court shall not grant a stay of proceedings pursuant to s 7(2) if it finds that the arbitration agreement is ‘null and void, inoperative or incapable of being performed’. See also Art 8(1) of the Model Law. 74. Carvalho v Hull, Blyth (Angola) Ltd [1979] 1 WLR 1228, although treated as a case of construction, may also be seen as a case in which the exclusive jurisdiction clause for the courts of Angola was frustrated. 75. (2004) 138 FCR 496. 76. Had the parties not varied their arrangements so as to replace the arbitration clause with an exclusive jurisdiction clause, the Federal Court would have had no option under s 7(2) of the International Arbitration Act 1974 but to stay the shipowner’s claim against time charterers. In the event, by reason of certain discretionary considerations available in the case of a jurisdiction (but not an arbitration) agreement no stay was granted: see further 7.90 below. 77. (1991) 217 ALR 152. 78. Shanghai Foreign Trade Corp v Sigma Metallurgical Co Pty Ltd (1996) 133 FLR 417 at 446 per Bainton J, following Bakri Navigation Company Ltd v Glorious Shipping SA, Owners of Ship ‘Golden Glory’ (1991) 217 ALR 152. 79. [2002] EWCA Civ 721. 80. Donohue v Armco Inc [2002] 1 Lloyd’s Rep 425 at 433. 81. Commonwealth v Verwayen (1990) 170 CLR 394 at 491 per McHugh J. 82. (1974) 131 CLR 634 at 646. 83. See also Commonwealth v Verwayen (1990) 170 CLR 394 at 421 per Brennan J, at 472 per Toohey J, at 481 per Gaudron J. 84. The Ruben Martinez Villena [1988] 1 Lloyd’s Rep 435 at 438 per Sheen J. In relation to delay, see also The Vishva Apurva [1992] 2 SLR 175 at 185: ‘Delay by the defendants is a factor in favour of the plaintiffs only if it amounts to a waiver of the defendants’ rights under the exclusive jurisdiction clause’. 85. [2002] NSWSC 896. 86. (2008) 168 FCR 169 at 184–5. 87. See also Zhang v Shanghai Wool & Jute Textile Co Ltd (2006) 201 FLR 178; [2006] VSCA 133 at [13]–[14]; La Donna Pty Ltd v Wolford AG (2005) 194 FLR 26 at 30; [2005] VSC 359.

88. As was the case in BHPB Freight Pty Ltd v Cosco Oceania Pty Ltd (2008) 168 FCR 169. See also Bogart Lingerie Ltd v Steadmark Pty Ltd [2013] VSC 212. 89. See La Donna Pty Ltd v Wolford AG (2005) 194 FLR 26. 90. BHPB Freight Pty Ltd v Cosco Oceania Pty Ltd (2008) 168 FCR 169 at 185. 91. (2005) 194 FLR 26. 92. [1983] 2 Lloyd’s Rep 59. 93. See note 92 above at 62. Sheen J noted that a defendant need not (and, implicitly, should not) wait for service of the statement of claim before seeking a stay (at 62–3). 94. (2008) 168 FCR 169 at 185. 95. See note 92 above at 62. 96. See note 92 above at 62. 97. (1932) 43 Lloyd’s LR 86. 98. Cf The Christos [1977] 1 Lloyd’s Rep 109, where Brandon J held that the delay was not inordinate and that the enforcement of the Greek jurisdiction clause would not prejudice the plaintiffs. 99. (2000) 100 FCR 420. 100. The Amazonia [1990] 1 Lloyd’s Rep 236 at 247, 251 arguably points in this direction although Mann LJ did refer to the ‘proper law of the estoppel’. See also Man (Sugar) Ltd v Haryanto (No 2) [1991] 1 Lloyd’s Rep 429 at 438. Cf RW White, ‘Equitable Obligations in Private International Law: The Choice of Law’ (1986) 11 Sydney Law Review 92; and TM Yeo, Choice of Law for Equitable Doctrines, Oxford University Press, 2004. 101. See HIH Casualty and General Insurance Ltd (in Liq) v RJ Wallace (2006) 68 NSWLR 603. It is arguable that s 19 only applies to policies of insurance governed by New South Wales law. See also Parr v Rural Agents Pty Ltd [1975] 2 NSWLR 347 at 354. 102. (1997) 188 CLR 418. 103. Commonwealth Bank of Australia v White; ex parte The Society of Lloyd’s [1999] 2 VR 681 at 704–5. Cf Leigh-Mardon Pty Ltd v PRC Inc (1993) 44 FCR 88; and note the argument put but not resolved in Clough Engineering Ltd v Oil and Natural Gas Corp Ltd (2008) 249 ALR 458 at [45]; see also SR Luttrell, ‘Public Policy Conflicts in the Arbitrability of the Trade Practices Act 1974 (Cth) — A Comment on Clough Engineering’ (2007) MacqJBL 139. Note that ss 67 and 68 of the Trade Practices Act 1974 (which are analogous to the provisions of the Insurance Contracts Act 1984 considered in Akai) and which now have their equivalent in s 67 of the Australian Consumer Law 2010 apply only to the limited class of ‘consumer contracts’ as defined by the Act. See also 19.47–19.48 below. 104. (1954) 94 CLR 577. 105. [1983] AC 565. Cf Maharani Woollen Mills Co v Anchor Line (1927) 29 Ll L R 169. 106. Unless a defendant in similar circumstances were to submit to the jurisdiction of the English courts within the meaning of Art 24 of Council Regulation 44/2001, this case would be decided differently today as Art 23 would give exclusive jurisdiction to the Dutch courts. 107. Compagnie des Messageries Maritimes v Wilson (1954) 94 CLR 577; Kim Meller Imports Pty Ltd v Eurolevant SpA (1986) 7 NSWLR 269; Hi-Fert Pty Ltd v United Shipping Adriatic Inc (1998) 89 FCR 166; Chowdhury v Mitsui OSK Lines Ltd [1970] 2 Lloyd’s Rep 272; Union Insurance Society of Canton v SS Elikon 642 F 2d 721 (4th Cir, 1981); Agro Co of Canada Ltd v The Regal Scout (1983) 148 DLR (3rd) 412; The Epar [1985] 2 MLJ 3; The Andhika Samyra [1989] 1 HKLR 198. For Dutch examples, see PJ Verheul, ‘The Forum (Non) Conveniens in English and Dutch Law and Under Some International Conventions’ (1986) 35 ICLQ 413 at 419, n 32.

108. [1983] AC 565 at 575. 109. [1984] 2 Lloyd’s Rep 244. 110. [1972] 2 QB 34. 111. See note 110 above at 44 per Lord Denning. 112. See FK Juenger, Choice of Law and Multi-State Justice, Dordrecht, Boston, 1993, pp 81–2. 113. As represented by the Supreme Court’s decision in Bisso v Inland Waterways Corp 349 US 85 (1955). 114. 428 F 2d 888 at 895 (5th Cir, 1970) reported under the name In re Unterweser Reederi GmbH. 115. 407 US 1 at 21 (1972); [1972] 2 Lloyd’s Rep 315 at 323. 116. See note 115 above at 24; Lloyd’s Rep 324. 117. See note 115 above at 15–16; Lloyd’s Rep 321. 118. (1987) 8 NSWLR 242 at 267. 119. (1988) 165 CLR 197 at 231. 120. See FK Juenger, Choice of Law and Multi-State Justice, Dordrecht, Boston, 1993, pp 81–2. 121. Riley v Kingsley Underwriting Agencies Ltd 969 F 2d 953 (1992); Roby v Corporation of Lloyd’s 996 F 2d 1353 (1993); Bonny v Society of Lloyd’s 3 F 3d 156 (1993); Shell v RW Sturge Ltd 55 F 3d 1227 (1995); Allen v Lloyd’s of London 94 F 3d 923 (1996); Haynsworth v Corporation of Lloyd’s 121 F 3d 956 (1997); Richards v Lloyd’s of London 135 F 3d 1289 (1998) (en banc). 122. Ash v Lloyd’s Corporation (1991) 6 OR (3d) 235; (1992) 9 OR (3d) 755. 123. Society of Lloyd’s v Hyslop [1993] 3 NZLR 135. 124. [1994] 2 VR 274. 125. [1999] 2 VR 681. 126. See also Faxtech Pty Ltd v ITL Optronics Ltd [2011] FCA 1320 discussed more fully at 7.93 below. 127. See note 126 above at 704. Note that leave to appeal from this decision was refused by the Victorian Court of Appeal and special leave to appeal was refused by the High Court of Australia. See also Green v Australian Industrial Investment Ltd (1989) 90 ALR 500 at 512, but note the argument put but not resolved in Clough Engineering Ltd v Oil and Natural Gas Corp Ltd (2008) 249 ALR 458 at [45]; see also SR Luttrell, ‘Public Policy Conflicts in the Arbitrability of the Trade Practices Act 1974 (Cth) — A Comment on Clough Engineering’ (2007) MacqJBL 139. 128. 135 F 3d 1289 (1998) (en banc). 129. 473 US 614 at 637, n 19 (1985). 130. A similar reasoning process, based upon the receipt of expert evidence as to the law of Virginia, was applied by Beazley J in Leigh-Mardon Pty Ltd v PRC Inc (1993) 44 FCR 88 at 104–5. 131. [2002] 1 Lloyd’s Rep 425. 132. See note 131 above at 442. 133. (1997) 188 CLR 418. 134. [1998] 1 Lloyd’s Rep 90. 135. 428 F 2d 888 (5th Cir, 1970), reported sub nom In re Unterweser Reederi GmbH. 136. See note 135 at 906. 137. ‘Contractual Stipulations Conferring Exclusive Jurisdiction upon Foreign Courts in the Law of England and Scotland’ (1943) 59 LQR 227.

138. Apple Computer Inc v Apple Corps SA [1990] 2 NZLR 598 but cf Lucasfilms v Ainsworth [2012] 1 AC 208; Desputeaux v Editions Corvette (1987) Inc [2003] 1 SCR 178; Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd [2011] NSWSC 268; Air Nauru v Niue Airlines Ltd [1993] 2 NZLR 632. 139. See s 7(2) of the International Arbitration Act 1974. 140. (1990) 169 CLR 332. 141. See note 140 at 351 (emphasis added). 142. In a similar vein, Bathurst CJ has observed that there do not seem to be any firm principles that determine whether a particular dispute is capable of being resolved by arbitration: Rinehart v Welker [2012] NSWCA 95 at [164]. 143. MJ Mustill and SC Boyd, Law and Practice of Commercial Arbitration in England, 2nd ed, Butterworths, London, 1989, pp 149–50. 144. (2006) 157 FCR 45 at [200]. 145. Rinehart v Welker [2012] NSWCA 95 at [167]; Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd [2011] 279 ALR 772; Siemens Ltd v Origin Energy Urangquinty Power Pty Ltd (2011) 279 ALR 759; Desputeaux v Editions Corvette (1987) Inc [2003] 1 SCR 178. 146. 473 US 614 (1985). 147. Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160. 148. (1998) 90 FCR 1 at 23–4; and see note 206 below. 149. (2006) 157 FCR 45. See also Casaceli v Natuzzi Spa (2012) 292 ALR 142 at [50] where it was observed that just because the source of claims may be Australian legislation which serves important public policy objectives, it was far fetched to suggest that an essentially commercial dispute in which remedies were sought under such legislation were only capable of resolution by the exercise of judicial power. In that case, Jagot J applied the same reasoning to claims for breach of the Franchising Code to those arising under the Trade Practices Act 1974. 150. [2012] NSWSC 225. 151. By way of contrast, in Aquagenics Pty Ltd v Break O’Day Council [2010] TASFC 3 and Curtin University of Technology v Woods Bagot Pty Ltd [2012] WASC 449, the Full Court of the Supreme Court of Tasmania and Beech J of the Supreme Court of Western Australia respectively held that the proportionate liability legislation of those two states did not apply to arbitrations although in the latter case, Beech J reserved the possibility that it could apply as an implied or express term of an arbitration agreement. 152. Rinehart v Welker [2012] NSWCA 95 at [170]; Fulham Football Club Ltd v Richards [2012] 1 All ER 414 at [103]. 153. Rinehart v Welker [2012] NSWCA 95 at [176]. 154. [2002] NSWSC 896 at [192]. 155. See Dean Witter Reynolds Inc v Byrd 470 US 213 (1985); Shearson Lehman Hutton Inc v Wagoner 944 F 2d 114 (2nd Cir, 1991); Pick v Discover Financial Services Inc, No Civ A 00-935-SLR (D) Del Sept 28 2001. 156. [2002] NSWSC 896 at [193]. 157. [1999] VSC 170. 158. [2002] NSWSC 896 at [194]. 159. Origin Energy Resources Ltd v Benaris International NV (No 2) [2002] TASSC 104. 160. Larsen Oil and Gas Pte Ltd v Petropod Ltd [2011] 3 SLR 414.

161. (2000) 52 NSWLR 1. 162. [1990] 2 QB 631. 163. See note 162 above, at 646. See also Noble Power Investments Ltd v Nissei Stomach Tokyo Co Ltd [2008] HKCA 255 esp. at [31]–[33]. 164. Ace Insurance SA NV v Zurich Insurance Co [2001] 1 Lloyd’s Rep 618 at 630–1. See, generally, JJ Fawcett,‘Non-exclusive Jurisdiction Agreements in Private International Law’ [2001] LMCLQ 234. 165. The Chaparral [1968] 2 Lloyd’s Rep 158 at 162, 164; Gulf Bank KSC v Mitsubishi Heavy Industries Ltd [1994] 1 Lloyd’s Rep 323 at 329; but cf Orchard Capital I Ltd v Jhunjhunwala [2012] SGCA 16. 166. 166 Faxtech Pty Ltd v ITL Optronics Ltd [2011] FCA 1320 at [5]. 167. (1893) 10 TLR 103 at 104; see also Nova (Jersey) Knit Ltd v Kammgarn Spinnerei GmbH [1977] 1 WLR 713 at 718, 730. 168. See Chapter 17 and see generally RG Fentiman, Foreign Law in English Courts, Oxford University Press, Oxford, 1999. 169. Evans Marshall & Co v Bertola SA [1973] 1 WLR 349 at 361 (jurisdiction clause for Barcelona); The Iran Vojdan [1984] 2 Lloyd’s Rep 380 at 385; Faxtech Pty Ltd v ITL Optronics Ltd [2011] FCA 1320. 170. [1913] P 130. 171. See note 170 above, at 136. 172. Austrian Lloyd Steamship Co v Gresham Life Assurance Society Ltd [1903] 1 KB 249 at 251. For an example, compare Street Sound Around Alecs Inc v M/V Royal Container 30 F Supp 2d 661 (SDNY); The Pacific Senator [2001] 2 Lloyd’s Rep 674 at 677. 173. (2008) 248 ALR 573. 174. (1997) 41 NSWLR 117 at 127. 175. [2009] NSWSC 724. 176. (2008) 248 ALR 573. 177. [2011] FCA 1320. 178. See, for example, FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association (1997) 41 NSWLR 117 at 126. 179. Continental Bank NA v Aeakos Compania Naviera SA [1994] 1 WLR 588 at 594. 180. See The Pacific Senator [2001] 2 Lloyd’s Rep 674 at 676–7. 181. Continental Bank NA v Aeakos Compania Naviera SA [1994] 1 WLR 588 at 594. Note, however, that an argument to the effect that a jurisdiction clause inserted for the sole benefit of one of the parties should be construed against it was rejected on the facts by Cairns LJ in The Makefjell [1976] 2 Lloyd’s Rep 29 at 32. 182. Berisford plc v New Hampshire Insurance Co [1990] 2 QB 631 at 637, citing Staughton LJ in Sohio Supply Co v Gatoil (USA) Inc [1989] 1 Lloyd’s Rep 588 at 591–2 in relation to insurance contracts. 183. [1989] 1 Lloyd’s Rep 588. 184. See note 183 above, at 591. See also British Aerospace plc v Dee Howard Co [1993] 1 Lloyd’s Rep 368, esp at 374; cf Cannon Screen Entertainment Ltd v Handmade Films (Distributors) Ltd (11 July 1989, unreported), cited in British Aerospace, at 374. 185. FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association (1997) 41 NSWLR 117 at 127.

See Austrian Lloyd Steamship Co v Gresham Life Assurance Society Ltd [1903] 1 KB 249; Hoerter v 186. Hanover Telegraph Works (1893) 10 TLR 22, 103, where not only were the first instance interpretations overturned on appeal but both appellate courts took a different interpretation of what were very similar clauses. 187. [1973] 1 Lloyd’s Rep 480. 188. [2008] WASCA 110. The relevant clause provided that the principal, at its sole discretion: ‘[S]hall determine whether the parties resolve the dispute by litigation within the jurisdiction of the courts of Western Australia or arbitration under the Commercial Arbitration Act. [Paramount] shall notify [Paharpur], by notice in writing, of its decision to refer the dispute to litigation or arbitration within 28 days of either [Paramount] or [Paharpur] electing that the dispute be determined by either litigation or arbitration’. 189. (2006) 68 NSWLR 603. 190. Global Partners Fund Ltd v Babcock & Brown Ltd (2010) 79 ACSR 383 at [53]. 191. See Recyclers of Australia Pty Ltd v Hettinga Equipment Inc (2000) 100 FCR 420 at 430–4, where the debate as to the true or proper scope of the arbitration clause in question was governed by Iowa law and competing experts were called to testify as to whether or not Iowa law took a broad or narrow approach to the construction and scope of arbitration clauses. It was held, on the basis of Iowa law, that a claim brought under s 52 of the Trade Practices Act fell within a contractual clause referring to arbitration ‘all disputes hereunder’. 192. [1975] 1 Lloyd’s Rep 372. 193. See note 192 above, at 374. This analysis was cited with approval by Kerr LJ in The Sennar (No 2) [1984] 2 Lloyd’s Rep 142 at 148. 194. No stay was granted in The Forum Craftsman [1985] 1 Lloyd’s Rep 291, where the plaintiff framed its claim in tort, but this was because it was held not to be party to the bill of lading containing the jurisdiction clause, according to its proper (Japanese) law. 195. A number of United States cases have so held: Re Kinoshita & Co 287 F 2d 951 (1961); Mediterranean Enterprises Inc v Ssangyong Corporation 708 F 2d 1458 (1983). See also Tracer Research v National Environmental Services Co 42 F 3d 1292 (1994); cf. Terra International Inc v Mississipi Chemical Corporation 119 F 3d 6988 (1997). 196. For an interesting example of a non-conventional arbitration held to fall outside its scope, see Engel v Adelaide Hebrew Corporation (2007) 98 SASR 402. 197. The Playa Larga [1983] 2 Lloyd’s Rep 171 at 183; Ashville Investments v Elmer Contractors [1989] 1 QB 488 at 503, 517; Harbour Assurance Co (United Kingdom) Ltd v Kansa General International Insurance Co Ltd [1993] 1 Lloyd’s Rep 455 at 470; Continental Bank NA v Aeakos Compania Naviera SA [1994] 1 WLR 588; The Angelic Grace [1994] 1 Lloyd’s Rep 168 at 172–4; Francis Travel v Virgin Atlantic Airways (1996) 39 NSWLR 160 at 165. 198. Harbour Assurance Co (United Kingdom) Ltd v Kansa General International Insurance Co Ltd [1993] QB 701 at 724; see also, for example, The Petr Schmidt [1995] 1 Lloyd’s Rep 202 at 206. 199. Global Partners Fund Ltd v Babcock & Brown Ltd (2010) 79 ACSR 383 at [60]. 200. (1995) 39 NSWLR 160 at 165. 201. See note 200 above, at 166. 202. [1994] 2 AC 324. 203. See note 202 above, at 343. 204. [2001] 1 Lloyd’s Rep 703.

(2006) 157 FCR 45 at [164]–[165]. Cf. the more closely text-driven approach of a differently 205. constituted Full Federal Court in Hi-Fert Pty Limited v Kiuking Maritime Carriers (1998) 90 FCR 1. See also the subsequent decision of Mansfield J in Seeley International Pty Ltd v Electra Air Conditioning BV [2008] FCA 29 at [73], who said that it ‘does not flaunt business common sense that the parties, having agreed upon arbitrating their disputes, should nevertheless agree upon an optional alternative dispute resolution process — by way of court proceedings — in certain circumstances. There is no inherent commercial reason why certain disputes where declaratory or injunctive relief is sought should not be agreed to be determined by a court’. This decision was affirmed on appeal by the Full Court: Electra Air Conditioning BV v Seeley International Pty Ltd ACN 054 687 035 [2008] FCAFC 169. In a manner that suggests that the ‘liberal’ approach embraced in Comandate may not have fully taken root in Australia, the Western Australian Court of Appeal held in Paharpur Cooling Towers Ltd v Paramount (WA) Ltd [2008] WASCA 110 that the expression ‘a dispute or difference between the parties’ was ‘intended to apply to a dispute between the parties to the contract only’, and did not extend to a contractual dispute which also involved a third party, being a co-acceptor on a bill of exchange: at [45]. This decision deployed similar reasoning to that which had been used in Hi-Fert. For a more liberal and flexible approach by the same Court, see Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 at [55]–[63]. 206. See also, to like effect, the decision of the House of Lords in Fiona Trust & Holding Corp v Privalov [2008] 1 Lloyd’s Rep 254, which cited Comandate with approval on this issue (but cf. the caution of Bathurst CJ in Rinehart v Welker [2012] NSWCA 95 at [122] regarding the need always to construe the words actually used in the dispute resolution clause); see also Larsen Oil and Gas Pte Ltd v Petropol Ltd [2011] 3 SLR 414. 207. [1991] 1 Lloyd’s Rep 69; [1991] 2 Lloyd’s Rep 325 (CA). 208. [1991] 2 Lloyd’s Rep 325 at 334. 209. [1979] 1 WLR 1228. 210. See note 209 above, at 1240. 211. See note 209 above, at 1237. 212. (2010) 79 ACSR 383 at [74]. 213. See note 212 above, at [79]. 214. [2002] 1 Lloyd’s Rep 425 at [60]–[61]. 215. [2012] FCA 554. 216. See 7.5 above. 217. Donohue v Armco Inc [2002] 1 Lloyd’s Rep 425 at 433. 218. The position as described in this paragraph and in the balance of this chapter may be affected by the Hague Convention on Choice of Court Agreements, if ratified by Australia. The impact that this convention would have on principles relating to the stay of proceedings commenced in breach of an exclusive jurisdiction agreement is discussed by R Garnett, ‘The Hague Choice of Court Convention: Magnum Opus or Much Ado About Nothing?’ (2009) 5 Journal of Private International Law 161; and the Hon JJ Spigelman, ‘The Hague Choice of Court Convention and International Commercial Litigation’ (2009) 83 ALJ 386. 219. (1950) 81 CLR 502 at 509. 220. (1996) 188 CLR 418 at 427–9 per Dawson and McHugh JJ, at 445 per Toohey, Gaudron and Gummow JJ. 221. See also Global Fund Partners Ltd v Babcock & Brown Ltd (2010) 79 ACSR 383. Incitec Limited v Alkimos Shipping Corp (2004) 138 FCR 496; Reinsurance Australia Corporation Ltd v HIH Casualty

and General Insurance (2003) 254 ALR 29 at 66; FAI General Insurance Co Ltd v Ocean Marine Mutual Protection & Indemnity Insurance Association Ltd (1997) 41 NSWLR 559 at 569; LeighMardon Pty Ltd v PRC Inc (1993) 44 FCR 88 at 95–9; see also Huddart Parker Ltd v Ship ‘Mill Hill’ (1950) 81 CLR 502 at 508–9; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 229, 259; Blackman & Co v Oliver Davey Glass Co [1966] VR 570 at 574–5. 222. 222 Global Fund Partners Ltd v Babcock & Brown Ltd (2010) 79 ACSR 383 at [84]. 223. [1970] P 94 at 99. 224. (2004) 138 FCR 496 at 505. 225. [1970] P 94 at 100. 226. [1993] 1 Lloyd’s Rep 369. 227. See note 226 above, at 376. See also Berisford plc v New Hampshire Insurance Co [1990] 2 QB 631 at 638 per Hobhouse J: ‘… it is difficult to see how there could be any discretion to stay the English proceedings on the ground of forum non conveniens in favour of foreign proceedings in breach of the parties’ agreement [for exclusive English jurisdiction]. Neither counsel could refer me to any case where such a power had been recognised, let alone exercised’. 228. (1931) 41 Lloyd’s LR 80. 229. See note 228 above, at 82. See also The Rothnie [1996] 2 Lloyd’s Rep 206. 230. (2004) 138 FCR 496 at 506. 231. 407 US 1 at 16 (1972); [1972] 2 Lloyd’s Rep 315 at 321. See also The Pacific Senator [2001] 2 Lloyd’s Rep 674; Insurance Corporation of Hanover Inc v Latino Americana de Reasseguros SA 868 F Supp 520 at 529; Roby v Corporation of Lloyds 996 F 2d 1353 at 1363 (1993). 232. 407 US 1 at 19 (1972); [1972] 2 Lloyd’s Rep 315 at 322. 233. Referring to a hypothetical example of an agreement between two Americans with an exclusive jurisdiction clause for a ‘remote alien forum’, the court observed that ‘in such a case, the serious inconvenience of the contractual forum to one or both of the parties might carry greater weight in determining the reasonableness of the forum clause’: see note 232 above at 17; Lloyd’s Rep 321. 234. See note 232 above, at 15; Lloyd’s Rep 321. See also Carnival Cruise Lines Inc v Shute 499 US 585 (1991). 235. For example, Carvalho v Hull, Blyth (Angola) Ltd [1979] 1 WLR 1228; The Star of Luxor [1981] 1 Lloyd’s Rep 139. At 141, Sheen J stated: ‘I have been told … that there are no political or other difficulties which would prevent Russian witnesses entering Egypt and giving evidence in the Egyptian proceedings. If there is hereafter any change which makes it impossible for those witnesses to enter Egypt I would regard that as grounds for lifting the stay’. 236. Law v Garett (1878) 8 Ch D 26; Kirchner v Gruban [1909] 1 Ch 413; Evans Marshall & Co v Bertola SA [1973] 1 WLR 349. 237. The Eleftheria [1970] P 94 at 100, but note that this is less of a consideration after the passage of the Foreign Limitation Periods Act 1984. See also The Blue Wave [1982] 1 Lloyd’s Rep 151 where the action was not stayed because of the probable application of a time bar in Greece. This case may be decided differently on account of the Act. 238. The Vishva Apurva [1992] 2 SLR 175 at 188. 239. The Vishva Prabha [1979] 2 Lloyd’s Rep 286; cf The Indian Fortune [1985] 1 Lloyd’s Rep 344 where, in an admirable judgment, it was said at 347: ‘The current difficulties which surround the transmission of money out of India were in existence and well known at the time when the contract was made’. A stay was granted.

240. The Al Battani [1993] 2 Lloyd’s Rep 219; cf The Kislovodsk [1980] 1 Lloyd’s Rep 183. 241. The Chaparral 407 US at 16–17 (1972); [1972] 2 Lloyd’s Rep at 322. 242. [1970] P 94 at 100. 243. (2004) 138 FCR 496 at 505. 244. The Eleftheria [1970] P 94 at 100. 245. [1939] 4 All ER 16. 246. [1979] 1 WLR 1228, at least in the judgment of Geoffrey Lane LJ at 1241: ‘On all the evidence it seems to me that, plainly, the plaintiff was the sort of person who would be anathema to the present government in Angola … there was a ground for the plaintiff’s fear’. 247. [1976] AC 249. 248. United States cases in this area have seen the refusal to enforce exclusive jurisdiction clauses in favour of Iranian courts: McDonnell Douglas Corp v Islamic Republic of Iran 758 F 2d 341 (8th Cir, 1985) cert denied 414 US 948; Rasoulzadeh v Associated Press 574 F Supp 854, 861 (SDNY, 1983), aff’d, 767 F 2d 908 (2nd Cir, 1985); Harris Corp v National Iranian Radio & Television 691 F 2d 1344, 1357 (11th Cir, 1982). 249. [1939] 4 All ER 16. 250. Cf The Abidin Daver [1984] AC 398 at 411; Muduroglu v TC Ziraat Bankasi [1986] 3 All ER 682 at 698 and 714. 251. [2002] 1 Lloyd’s Rep 425 at 433. 252. [1998] 2 Lloyd’s Rep 461. 253. See also Aratra Potato Co Ltd v Egyptian Navigation Co (The El Amria) [1982] 1 Lloyd’s Rep 119; Citi-March Ltd v Neptune Orient Lines Ltd [1996] 2 All ER 545; [1997] 1 Lloyd’s Rep 72 and Mahavir Minerals Ltd v Cho Yang Shipping Co Ltd (the MC Pearl) [1997] 1 Lloyd’s Rep 566; Sinochem International Oil (London) Ltd v Mobil Sales & Supply Corporation [2000] 2 Lloyd’s Rep 670 at 680– 1. 254. (2004) 138 FCR 496. 255. [1997] 1 Lloyd’s Rep 566. 256. See note 255 above, at 569. 257. [2002] 1 Lloyd’s Rep 425. 258. For the arguments for and against the availability of damages for breach of an exclusive jurisdiction clause or arbitration agreement, see A Briggs, Agreements on Jurisdiction and Choice of Law, Oxford University Press, 2008, Ch 8; and T Raphael, The Anti-Suit Injunction, Oxford University Press, 2008, Ch 14. 259. [2011] FCA 1320. 260. 260. See 7.55 above.

[page 186]

Chapter 8

Restraint of Local Proceedings: Clearly Inappropriate Forum Introduction 8.1 As has been seen in the preceding chapters, a plaintiff may have a wide selection of possible fora open to him or her. A single dispute may fall within the jurisdiction of several countries’ courts. In such cases, plaintiffs choose among the available options for a variety of reasons. The plaintiff may simply choose to sue in or near the jurisdiction where he or she lives, rather than travel across the world to seek out the defendant.1 Because the forum court will apply its own procedure whatever the governing lex causae, the plaintiff may select the forum to take advantage of favourable procedure available there, such as the mode of litigation (including the availability of juries in the assessment of damages), the scope of discovery and rules relating to fees and cost recovery.2 Alternatively, the plaintiff may go ‘forum shopping’ in search of the substantive law that provides the best legal remedy, as in Breavington v Godleman,3 where the plaintiff sued in Victoria in relation to a motor vehicle accident that occurred in the Northern Territory, in an attempt (ultimately unsuccessful) to get the common law remedy of damages under Victorian law rather than the statutory ‘no-fault’ motor vehicle accident compensation available in the Northern Territory. 8.2 Whether it derives from substantive or procedural law or from some other reason, tactical advantage is usually a zero sum game: the plaintiff’s advantage is the defendant’s disadvantage and vice versa.4 If two fora, A and B, both have jurisdiction to hear a dispute and the plaintiff chooses to sue in forum A because of an accurate

[page 187] assessment that he or she has a greater chance of success there, one can be sure that the defendant in forum A would probably rather litigate in forum B—or, at least, would rather not litigate in forum A. If the defendant cannot challenge the plaintiff’s invocation of the jurisdiction of the chosen forum—that is, if the plaintiff has properly invoked the court’s jurisdiction—the defendant can only ask the court not to exercise that jurisdiction in the circumstances, because the dispute should be heard by the courts of another country instead. In Australia, such a request is made by way of an application for a stay of local proceedings, which is the subject of this chapter. Chapter 9 deals with the converse situation, where a party to Australian proceedings seeks by issue of an anti-suit injunction to restrain another party from commencing or continuing foreign proceedings. 8.3 It is important to emphasise that an application for a stay is not a challenge to the Australian court’s jurisdiction, although it may be included as a fallback alternative to a challenge to jurisdiction. Ex hypothesi, the plaintiff has properly invoked the jurisdiction of the Australian court, a fact that continues to have some significance in Australian law. The development of the doctrine of forum non conveniens is a story of changing attitudes to the weight to be given to the plaintiff’s invocation of the local jurisdiction.

Development of the Forum Non Conveniens Doctrine 8.4 The traditional approach of Australian courts toward the right of a plaintiff to invoke the jurisdiction of choice was expressed by Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay5 in the following terms: ‘A party who has regularly invoked the jurisdiction of a competent court has a prima facie right to insist upon its exercise and to have his claim heard and determined’. Authority for this proposition was found in the unanimous decision of the High Court in 1908 in Maritime Insurance Co Ltd v Geelong Harbour Trust Commrs, where it was held that a stay should only be granted in cases in which ‘the inconvenience of trying a case in a particular tribunal may be such as practically to work a serious injustice upon a defendant and be vexatious’.6 As late as 1988, it was possible to find a Federal Court judge citing Maritime Insurance as authority for the proposition that a stay should only be granted where the plaintiff was guilty

of ‘moral delinquency or irresponsible pursuit of litigation’.7 8.5 England departed from the traditional position sooner, and further, than Australia did, but its starting point was the same. Traditionally, the defendant seeking a stay in an English court bore a heavy onus. The test to be applied was defined by Scott LJ in St Pierre v South American Stores Ltd:8 [page 188] In order to justify a stay two conditions must be satisfied, one positive and the other negative: (a) the defendant must satisfy the Court that the continuance of the action would work 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; and (b) the stay must not cause an injustice to the plaintiff. On both the burden of proof is on the defendant.

One of the rare cases where the defendant was able to discharge the onus was Egbert v Short.9 In that case the plaintiff, an American, served the defendant, a resident of India on a visit to England, with a writ concerning a dispute which had occurred in India, the day before the defendant was due to embark for the return voyage to India. It was clear that the plaintiff had chosen the English forum solely to vex and annoy the defendant. Conduct falling short of such deliberate provocativeness was insufficient. 8.6 In Scotland, the position was different. Unlike their English counterparts, Scottish courts evolved a general doctrine of forum non conveniens that gave them a discretion to decline jurisdiction where the forum chosen by the plaintiff was inappropriate. The doctrine was in frequent use well before the middle of the nineteenth century.10 As Lord Sumner explained the Scottish rule in Société du Gaz de Paris v Armateurs Français,11 ‘the object … is to find that forum which is more suitable for the ends of justice, and is preferable because pursuit of the litigation in that forum is more likely to secure those ends’. 8.7 This Scottish separatism owed nothing to Scotland’s mixed common law/ civil law heritage, however. Civil law systems grant little or no discretion to their courts to decline jurisdiction for reasons of inconvenience or inappropriateness. For example, except in the case of exceptions de litispendance (cases of lis alibi pendens)12 and connexité (related actions), there is no doctrine of forum non conveniens in French law.13 The French Nouveau Code de Procédure Civile (the New Code of Civil Procedure) forms a complete set of rules allocating disputes to different legal authorities, representing a definitive and authoritative assessment of the requirements of the proper administration of justice and the

interests of litigants.14 If a French judge has jurisdiction under the Code, he or she has been designated as having the power to decide the case and cannot decline to exercise that jurisdiction.15 Similarly, German law has no doctrine of forum non conveniens except in cases of ‘non-contentious jurisdiction’ (Freiwillige Gerichtsbarkeit).16 8.8 Although not as precocious as Scotland, the United States was also an early adopter of the doctrine of forum non conveniens. The doctrine had its earliest and most frequent expression in cases arising in the admiralty jurisdiction of the federal [page 189] courts, where it was already established in the latter part of the nineteenth century.17 In 1947, the Supreme Court of the United States adopted a general doctrine of forum non conveniens to be applied in all courts exercising federal jurisdiction.18 Thirty states, the District of Columbia and all United States territories engage in an analysis effectively identical to that undertaken in federal courts, and 13 others employ a factor-based analysis very similar to the federal one.19 Significantly, if an American court concludes that it is forum non conveniens, it dismisses the case rather than merely staying it, although it may, in some cases, make the dismissal a conditional one.20 8.9 From 1974 onwards, in a series of decisions starting with The Atlantic Star21 and culminating in Spiliada Maritime Corp v Cansulex Ltd,22 the House of Lords changed the law of England and Wales to a point where it merged with that of Scotland. The House of Lords refined the law further in Connelly v RTZ Corp Plc23 and Lubbe v Cape Plc (No 2).24 Although the plaintiff still prima facie has the right to invoke the common law jurisdiction of an English court, a stay of those proceedings will be granted in the words of Lord Goff of Chieveley in Spiliada:25 … where the court is satisfied that there is some other available forum, having jurisdiction, which is the appropriate forum for the trial of the action, ie in which the case may be tried more suitably for the interests of all the parties and the ends of justice.

Where the defendant has been served in England, the onus rests upon the defendant. In the case of a plaintiff seeking to invoke the statutory jurisdiction of the High Court based upon service outside the jurisdiction, the onus is reversed. Leave will not be granted unless the plaintiff shows that England is clearly the

more appropriate forum.26 (This chapter deals with the former case, where the defendant applies for a stay of proceedings in the forum. Chapter 3 deals with the latter case, where the plaintiff seeks to serve originating process out of the jurisdiction.) 8.10 The first stage of the Spiliada test requires the court to determine whether there is another, more appropriate, forum. Lord Goff defined a ‘more appropriate forum’ as being one ‘with which the action had the most real and substantial connection’ to be determined not only by reference to factors such as the availability of witnesses, but also by reference to other factors, such as the law governing the relevant transaction and the places where the parties respectively reside or [page 190] carry on business.27 The legitimate juridical advantages for the plaintiff on which the traditional test had laid great stress, such as earlier trial, greater scope for discovery, better recovery of damages and opportunity for enforcement and a more advantageous limitation period, were not altogether discounted, but could be offset by other considerations.28 8.11 If the first stage of the Spiliada inquiry leads the court to conclude that there is some other available forum which prima facie is more appropriate for the trial of the action, an English court will ordinarily grant a stay unless the plaintiff can show that justice requires that a stay should nevertheless not be granted.29 In this second stage the court will concentrate its attention not only on factors connecting the proceedings with the foreign or the English forum but also on whether the plaintiff will obtain justice in the foreign jurisdiction.30 It is only if the plaintiff can establish that substantial justice will not be done in the appropriate forum that a stay will be refused.31 8.12 Initially, the new English approach was followed in Australia, by Gibson J of the Family Court of Australia in In the Marriage of Takach (No 2)32 and Brinsden J of the Supreme Court of Western Australia in The Courageous Coloctronis,33 but Australian adoption of a broad forum non conveniens test was short-lived. In Oceanic Sun Line Special Shipping Co Inc v Fay,34 a majority of the High Court of Australia rejected the Spiliada approach. Unfortunately, the reasoning of the majority left several uncertainties35 and the High Court soon took the opportunity of providing an authoritative restatement of the Australian

position in Voth v Manildra Flour Mills Pty Ltd,36 which is the starting point for consideration of the modern Australian law.

The Voth ‘Clearly Inappropriate Forum’Test The decision 8.13 In Voth v Manildra Flour Mills Pty Ltd,37 the plaintiff, a company incorporated in New South Wales, sued the defendant, an accountant residing in Missouri and practising there, for professional negligence in respect of advice, or lack of it, given [page 191] to the plaintiff’s subsidiary, which was established under the laws of the state of Kansas. As a result of the alleged negligence, the plaintiff’s Kansas subsidiary did not pay United States withholding tax on interest payments made by it to the plaintiff and the plaintiff lost taxation deductions to which it would have been entitled under Australian law had the withholding tax been paid. The defendant was served outside Australia with process issued out of the Supreme Court of New South Wales pursuant to Pt 10 r 1(1)(e).38 The defendant applied for a stay of the New South Wales proceedings. 8.14 The majority judgment of the High Court was delivered by Mason CJ, Deane, Dawson and Gaudron JJ. Brennan J joined in the majority reasoning despite having dissented in Oceanic Sun, in order to ensure that the test be ‘authoritatively settled’,39 but dissented on its application to the facts. Toohey J adhered to the views he expressed in dissent in Oceanic Sun.40The majority rejected the ‘traditional test’ favoured by Brennan J in Oceanic Sun. It noted that the traditional test was no longer applied in the United Kingdom, New Zealand, Canada or the United States.41 Importantly, however, the majority also rejected the ‘more appropriate forum’ test propounded by the House of Lords in Spiliada and favoured by Wilson and Toohey JJ in Oceanic Sun. It gave three reasons for this rejection. 8.15 In the first place, the search for the more appropriate forum involved a balancing exercise whereby the suitability of one forum had to be compared with

the other. This might involve value judgments about the system of courts and justice in other countries, which might be difficult to make. In contrast, the question of whether the forum chosen by the plaintiff was ‘clearly inappropriate’ focuses on only one jurisdiction. Contrary to what Deane J had said in Oceanic Sun, the majority could envisage a situation where an Australian forum was ‘clearly inappropriate’ even if no other forum was available to the plaintiff. Hence, the majority rejected Lord Goff’s final test of whether the forum was the only place where the plaintiff could obtain justice.42 (This issue is considered in greater detail below, at 8.33–8.36.) 8.16 Second, the majority reiterated the point made in Oceanic Sun that the 1908 decision of the High Court in Maritime Insurance Co Ltd v Geelong Harbour Trust Commissioners43 imposed upon Australian courts an obligation to exercise jurisdiction at the demand of the plaintiff unless the selected forum was a clearly inappropriate one.44 8.17 Finally, the majority was not satisfied that there existed an international consensus on the application of the Spiliada test, largely, it seems, because of perceived differences in the forum non conveniens approach between the United States and the United Kingdom.45 Thus, the majority also rejected the ‘public interest’ test used in the United States, whereby the court may consider the effect that retaining the case [page 192] would have on its own workload.46 No such discrimination exists in Australia or the United Kingdom.47 8.18 In conclusion, the Voth majority held that an Australian court should only decline jurisdiction regularly invoked by a plaintiff if it is satisfied that the forum selected is clearly inappropriate according to the principles stated by Deane J in Oceanic Sun.48 In that case Deane J rejected the view that the words ‘vexatious or oppressive’ imply a requirement that the continuance of the action would involve moral delinquency on the part of the plaintiff.49 Deane J restated the ‘modern content of the traditional principles’ as follows:50 Th[e] power is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression. The power should only be exercised in a clear case and the onus lies

on the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him. Ordinarily, a defendant will be unable to discharge that onus unless he can identify some appropriate foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the particular proceedings at the suit of the plaintiff. Otherwise, that onus will ordinarily be discharged by a defendant who applies promptly for a stay or dismissal if he persuades the local court that, having regard to the circumstances of the particular case and the availability of the foreign tribunal, it is a clearly inappropriate forum for the determination of the dispute between the parties.

The Voth majority added that in applying these principles, the discussion by Lord Goff in Spiliada of ‘relevant connecting factors’ and ‘a legitimate personal or juridical advantage’ will be of valuable assistance.51

Summary and application 8.19 It follows that the test to be applied by Australian courts52 derives partly from what was said by Deane J in Oceanic Sun, partly from what was said by [page 193] Lord Goff in Spiliada (although not the ‘more appropriate forum’ test), and partly from the statements made by the majority in Voth. The following is an attempt to put these various elements together: (1) The plaintiff prima facie has the right to have the chosen forum exercise the jurisdiction regularly invoked by the plaintiff either through service of the defendant within the forum or outside, unless the forum is satisfied that it is clearly inappropriate.53 But not too much weight should be placed on this right. It may well be significant where there is a ‘finely balanced contest’. In other cases it may have little bearing on the matter.54 (2) The onus of establishing that satisfaction lies upon the party (normally the defendant)55 who seeks a stay or the setting aside of service on that ground, except where the plaintiff was required to obtain prior leave to serve the defendant outside the jurisdiction.56 (3) The following factors are relevant in considering whether the forum is clearly inappropriate. None is conclusive by itself:57 (a) Any significant connection between the forum selected and the subject matter of the action and/or the parties, such as the domiciles of the

parties, their places of business and the place where the relevant transaction occurred or the subject matter of the suit is situated,58 and other factors affecting convenience or expense, such as the availability of witnesses.59 (b) Any legitimate60 and substantial juridical advantage to the plaintiff, such as greater recovery,61 more favourable limitation period, better ancillary procedures, or assets within the jurisdiction against which any judgment can be enforced.62 (c) Whether the law of the forum will supply the substantive law to be applied in the resolution of the subject case or whether the matter is governed by foreign law.63 [page 194] 8.20 The onus of satisfying the court that it is a clearly inappropriate forum lies upon the party applying for the stay with only one exception: in those jurisdictions where prior leave to serve outside the jurisdiction is still required, the onus of satisfying the court that it is not clearly inappropriate remains with the plaintiff, both at the ex parte stage and when the defendant afterwards appears to have service set aside.64 Because only the Supreme Court of the Northern Territory, the Supreme Court of Western Australia, the Federal Court and the original jurisdiction of the High Court still require prior leave to serve originating process outside the jurisdiction,65 it follows that in most cases the party who has been served abroad bears the onus of establishing that the court is clearly inappropriate. 8.21 The Voth test is not confined to common law actions in personam. It has been applied to applications for property settlement,66 spousal maintenance67 and other financial relief68 in the Family Court of Australia. In Henry v Henry,69 the High Court of Australia held that the Voth test applies to divorce proceedings. In custody disputes, however, the High Court of Australia held in ZP v PS70 that the best interests of the child prevail over considerations of forum non conveniens. 8.22 It should also be assumed that the decision in Voth overrides the previous practice whereby equitable relief in respect of events occurring abroad or involving the internal affairs of foreign corporations could be refused on grounds

that the foreign court is a more appropriate forum to provide the relief in question,71 although in Macquarie Bank Ltd v Berg,72 a post-Voth case, Simpson J of the Supreme Court of New South Wales stated the relevant principles as if the previous practice remained unchanged. [page 195]

The test reaffirmed 8.23 The Voth test has been the subject of sustained academic criticism in many places,73 including previous editions of this book.74 In Puttick v Tenon Ltd,75 the High Court of Australia was invited to abandon Voth and to adopt an ‘inappropriate forum’ test, or the Spiliada ‘more appropriate forum’ test. The court unanimously declined the invitation. The majority (French CJ, Gummow, Hayne and Kiefel JJ) said that, contrary to the appellant’s suggestion, there was no ‘scope for tension and confusion’ about the content or application of the clearly inappropriate forum test.76 In their concurring judgment, Heydon and Crennan JJ said that Voth should simply be followed ‘until the time comes, if it ever comes, for full argument to be developed about its correctness’.77 Voth has been part of Australian law for almost a quarter of a century. In Puttick, a new generation of High Court justices, none of whom participated in Voth, showed no inclination to reconsider the ‘clearly inappropriate forum’ test. The High Court has not revisited forum non conveniens since Puttick. Despite all the academic lamentation and complaint,78 judicial reform of the Voth test appears to be past praying for.79 Without legislative change, the test is entrenched in Australian law and critics must just grin and bear it. Legislative change has been made in relation to proceedings involving New Zealand (see 8.24 below) and there is (or may be) a minor statutory exception in relation to proceedings in the Australian Capital Territory and New South Wales relating to foreign land (see 8.25 below). There is no indication that broader legislative intervention is on the horizon.

New Zealand 8.24 On 24 July 2008, the governments of Australia and New Zealand signed an Agreement on Trans-Tasman Court Proceedings and Regulatory

Enforcement. The objective of the agreement was to streamline the process for resolving civil proceedings with a trans-Tasman element, in order to reduce costs and improve efficiency. The Trans-Tasman Proceedings Act 2010 (Cth) s 17 creates a ‘more appropriate forum’ test, which must be applied when a stay is being sought and the other forum in question is in New Zealand. (On 25 July 2013, the Governor-General fixed 11 October 2013 as the commencement date for the Act.) When determining which court is more appropriate, the court must have regard to the following factors:80 [page 196] (a) the places of residence of the parties or, if a party is not an individual, its principal place of business; (b) the places of residence of the witnesses likely to be called in the proceeding; (c) the place where the subject matter of the proceeding is situated; (d) any agreement between the parties about the court or place in which those matters should be determined or the proceeding should be commenced (other than an exclusive choice of court agreement to which subsection 20(1) applies); (e) the law that it would be most appropriate to apply in the proceeding; (f)

whether a related or similar proceeding has been commenced against the defendant or another person in a court in New Zealand;

(g) the financial circumstances of the parties, so far as the Australian court is aware of them; (h) any matter that is prescribed by the regulations; (i)

any other matter that the Australian court considers relevant.

Subsection 19(2) of the Act also provides that the court ‘must not take into account the fact that the proceeding was commenced in Australia’, which means that the court’s decision is, in essence, the kind of case management decision made in transfer of proceedings under the Australian cross-vesting scheme considered in Chapter 6, albeit with a different list of statutory criteria.81

Foreign land: the Australian Capital Territory and New South Wales 8.25 The Moçambique rule (see 3.117–3.126 above) has been abolished by legislation in New South Wales and, to a lesser extent, the Australian Capital Territory. Courts in these two jurisdictions have power to hear proceedings relating to land or immovable property outside the jurisdiction,82 although courts in the ACT may not adjudicate on title to, or the right to possession of, land or other immovable outside of the ACT.83 The statutes provide that the court may decline to exercise its jurisdiction ‘if the court considers that it is not the appropriate court to hear the proceedings’ (in New South Wales)84 or ‘if the court considers it is an inappropriate forum’ (in the Australian Capital Territory).85 An ‘inappropriate forum’ may not be the same thing as a ‘clearly inappropriate forum’, so these provisions may modify the Voth rule in the circumstances to which they apply. Nevertheless, in Regie Nationale des Usines Renault SA v Zhang,86 the majority held that although the expression ‘inappropriate forum’ in the then New South Wales Supreme Court Rules was ‘less emphatic’ than the expression ‘clearly inappropriate forum’ used in Voth, it should be interpreted in the same way. If the same can be said in the context [page 197] of the Australian Capital Territory and New South Wales legislation abolishing the Moçambique rule, the provisions about granting a stay do not modify the Voth rule, after all.

The Test in Operation 8.26 Although the majority of the High Court in Voth expressed the view that the distinction between the test favoured by it and that put forward by the House of Lords in Spiliada was relatively small, and the two tests were likely to lead to the same result in most cases,87 it cannot be denied that the granting of a stay has become the exception to the rule after Voth, particularly in cases involving individual plaintiffs suing for personal injury.88

Assessing the significance of the factors 8.27 In Voth, the majority painted a picture (perhaps a rather unrealistic one)89 of the primary judge sitting quietly in his or her chambers reflecting on brief, cogent submissions by the parties, not burdened by unhelpful references to other decisions on other facts, before simply declaring whether or not the proceedings should be stayed on forum non conveniens grounds.90 Only in some cases would it be desirable, the Voth majority said, for the judge ‘to give detailed reasons balancing the particular weight to be given to the presence or absence of particular connecting factors and explaining why the local forum is or is not a clearly inappropriate one’.91 In Navarro v Jurado,92Thackray J of the Family Court of Australia observed that the nature of a forum non conveniens application may even give rise to different considerations relating to the customary obligation to give reasons for the exercise of the court’s discretion. Nevertheless, the practice of judges is, indeed, to give detailed reasons, perhaps driven by the fact that the practice of counsel is to make detailed submissions.93 [page 198] A simple judicial declaration of a result is the exception, rather than the rule.94 In VTB Capital plc v Nutritek International Corp,95 Lord Neuberger JSC of the Supreme Court of the United Kingdom said that the aspiration (also stated by Lord Templeman in Spiliada)96 that submissions would be brief was ‘rather optimistic’. 8.28 The High Court of Australia has sent slightly mixed signals about the approach a court must take to assessing the significance of the relevant factors. The Voth majority adopted Deane J’s restatement of the relevant principles in Oceanic Sun, which described the primary judge’s task as involving a ‘subjective balancing process’.97 Similarly, in Henry v Henry,98 the majority wrote that the plaintiff’s prima facie right to insist on the exercise of the jurisdiction should only be significant ‘in what is otherwise a finely balanced contest’. Nevertheless, the majority in Regie Nationale des Usines Renault SA v Zhang said, in fairly stark contrast, that the correct approach ‘[is] not a question of striking a balance between competing considerations’ and that the primary judge had erred by stating that his conclusion had been arrived at ‘after weighing all the factors’.99 8.29 Despite the High Court’s apparent ambivalence about whether the process

of assessment should properly be described as ‘balancing’ the factors, it seems fairly clear from the court’s emphatic statement in Zhang that the primary judge should not weigh the relevant factors against one another.100 In Voth itself, the majority said that the primary judge’s focus should be ‘upon the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum’,101 a phrase repeated with approval by the majority in Puttick v Tenon Ltd.102 Although primary judges occasionally express their conclusions using metaphors of balancing and weighing,103 the process is not one of weighing those factors that point towards a stay against those that point away from a stay, but rather of assessing [page 199] whether there are enough factors indicating that the forum is clearly inappropriate, in which case a stay should be granted.104 If there are significant factors pointing to the conclusion that the chosen forum is appropriate, it is immaterial that there may be many factors suggesting that another forum might also be appropriate or even more appropriate. The factors are not to be weighed to see where the balance lies because that would, in effect, be a Spiliada-like ‘more appropriate forum’ test.105 For example, in Virgtel Ltd v Zabusky,106 de Jersey CJ listed factors relied on by the defendants indicating that a stay should be granted and factors relied on by the plaintiffs indicating that a stay should be refused, before simply observing: ‘There is manifest convenience in proceeding in this jurisdiction, and it could not sensibly be suggested doing so would be oppressive or vexatious’. 8.30 In Voth, the majority observed that the question whether a forum non conveniens stay should be granted is ‘pre-eminently one for the trial judge’, with the result that ‘an appeal should be rare and an appellate court should be slow to intervene’ and ‘extremely reluctant to interfere’.107 Nevertheless, in Murakami v Wiryadi108 and Fleming v Marshall,109 the New South Wales Court of Appeal raised, but did not find it necessary to answer definitively, the question of whether the primary judge’s decision about an application for a forum non conveniens stay is a discretionary one, in the sense that appellate review would then be governed by the principles stated by the High Court in House v R,110 or one involving the process of drawing an inference from facts that are undisputed or established by the findings of the primary judge, in which case the appeal court’s decision would be governed by the less stringent test for appellate

intervention stated in Warren v Coombes.111 (In both cases, the court applied the House principle without affirmatively deciding that [page 200] it was the correct test.)112The New South Wales Court of Appeal raised the question again in Studorp Ltd v Robinson,113 but once again did not provide a definitive answer. Allsop P seemed to favour the more lenient Warren approach, while Hoeben JA said there was ‘some force’ in the argument that an appeal should be governed by the stricter House principles.114 In contrast, in Navarro v Jurado,115 a Full Court of the Family Court of Australia applied House principles to an appeal from a primary decision that the court was a ‘clearly inappropriate forum’. Thackray J observed that particular restraint should be exercised by an appeal court in forum non conveniens cases because of the proposition stated in Voth (but seldom observed in practice: see 8.27) that the primary judge need not give detailed reasons for his or her decision. As a result, ironically, there may be greater opportunity for appellate interference when the primary judge elects to provide reasons, as primary judges usually do.116 8.31 In Suzlon Energy Ltd v Frankfurter Bankgesellschaft (Schweitz) AG,117 Foster J of the Federal Court of Australia considered the related, but slightly different, question of whether leave should be given to appeal against a decision to grant a forum non conveniens stay. Foster J observed that because the primary judge’s decision was an interlocutory one, the court should consider the prospects of success of the appeal, while still exercising ‘particular caution’ about appellate intervention when no questions of general principle are at stake.118 In considering the prospects of success of an interlocutory appeal, Foster J held that any appeal would be determined by application of the House principles.119 8.32 No definitive answer to the question of the appropriate standard for appellate review can be found in dicta from the High Court. In Puttick v Tenon Ltd,120 Heydon and Crennan JJ paraphrased the House principles for appellate intervention but observed that they were ‘not conclusive’ on the facts of the case, because the court was ‘re-exercising a discretion which miscarried … rather than considering an appeal against an order flowing from the primary judge’s conclusion’. At best, it is possible to observe, with some caution, that authority

seems to favour the more restrictive House approach. In this regard, the remarks of the Voth majority quoted [page 201] at the beginning of 8.30 should not be forgotten. Appellate courts should be extremely reluctant to interfere with a primary judge’s decision.

Availability of an adequate alternative forum 8.33 The Spiliada test requires the defendant to show that there is another available forum to determine the parties’ dispute.121 If there is none, there can be no stay. The same is true in the United States, where the availability of an adequate alternative forum is a necessary first step in the court’s inquiry under the federal forum non conveniens test.122 In contrast, the majority of the High Court of Australia expressed a different view when rejecting the Spiliada test in Voth:123 The availability of relief in a foreign forum will always be a relevant factor in deciding whether or not the local forum is a clearly inappropriate one. But … circumstances could well exist in which the local court was a clearly inappropriate one notwithstanding that there was no other tribunal which was competent to entertain the particular proceedings: eg, a claim for damages for injury in a road accident in circumstances where the courts of the only country with which the parties or the accident had any real connection were denied jurisdiction to entertain any such claim by reason of the express provisions of a general legislative scheme providing for limited benefits and compensation for all road accident victims from public funds.

8.34 In Garsec Pty Ltd v His Majesty the Sultan of Brunei,124 Campbell JA (with whom Hodgson JA agreed) said that the example in this passage from Voth was just that, an example, and not an intended limitation on the circumstances in which an Australian court might be a clearly inappropriate forum. In other words, the principle is not limited to cases where the foreign court is not competent to hear the dispute. The principle is simply that the availability of the foreign forum, while always relevant, is never conclusive. The Australian court’s focus is on its own appropriateness or inappropriateness, not the availability of the foreign forum. As Campbell JA put it in Garsec:125 If the subject-matter of a dispute had a tenuous connection with Australia such that an Australian court would have jurisdiction concerning it, but all the witnesses and documents were in another country and the transaction was governed by the law of that other country it would be easy to reach a conclusion that the Australian court was a clearly inappropriate forum, regardless of whether there

was another place that could hear the dispute.

[page 202] 8.35 After quoting these passages from Voth and Garsec in TS Production LLC v Drew Pictures Pty Ltd,126 Finkelstein J of the Federal Court observed (obiter) that the fact that only an Australian court could resolve a dispute between Australians about the ownership of Australian copyright did not necessarily mean that the action could not be stayed on forum non conveniens grounds if other factors indicated that a stay should be granted. In contrast, in Reinsurance Australia Corp Ltd v HIH Casualty and General Insurance Ltd,127 Jacobson J of the Federal Court held that because relief under the Trade Practices Act 1974 (Cth) was only available in Australia (at least in the circumstances of that case), the Federal Court could not be an inappropriate forum.128 Although courts occasionally give the impression that the availability of a foreign forum is a prerequisite for a forum non conveniens stay,129 it seems settled in the light of Voth that it is merely one factor, albeit usually a very significant one. In Fleming v Marshall,130 the New South Wales Court of Appeal said that the availability of a foreign forum was a factor of ‘prime importance’, although its significance might be lessened if the unavailability of the alternative forum is caused by the plaintiff’s own action or inaction, such as an unexplained or careless failure to institute proceedings within the relevant limitation period.131 8.36 It is not dispositive that the plaintiff could achieve a better result in Australia than in the foreign forum,132 but the factor comes closest to being dispositive when, as in Reinsurance Australia, the Australian forum provides a remedy that would not be available at all in the foreign forum. That is the kind of ‘legitimate juridical advantage’ that has been regarded as significant from Spiliada onwards.133 For example, in Fair Work Ombudsman v Pocomwell Ltd,134 the Supreme Court of Victoria refused to stay proceedings brought under the Fair Work Act 2009 (Cth) because ‘there is no prospect that any alternative foreign forum would be available to determine the rights and duties of workers pursuant to the application of an Australian law such as the [Fair Work] Act’.135 The significance of the availability of the remedy provided by the Australian Consumer Law s 18 (formerly the Trade Practices Act 1974 (Cth) s 52) is considered below, at 8.57–8.60.

[page 203]

The relevance of a foreign lex causae 8.37 In Regie Nationale des Usines Renault SA v Zhang,136 the majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) observed:137 An Australian court cannot be a clearly inappropriate forum merely by virtue of the circumstance that the choice of law rules which apply in the forum require its courts to apply foreign law as the lex causae.

This must necessarily be so because, as French CJ, Gummow, Hayne and Kiefel JJ pointed out in Puttick v Tenon Ltd,138 the very existence of choice-of-law rules denies that the identification of foreign law as the lex causae is reason enough in itself for an Australian court to decline to exercise jurisdiction. 8.38 Nevertheless, the fact that the lex causae is a foreign law is clearly a relevant consideration, one that the court can properly take into account and which may, depending on the circumstances, be a centrally important factor.139 In Voth itself, Mason CJ, Deane, Dawson and Gaudron JJ stated the reverse proposition, that: ‘[I]n deciding whether it has been established that the chosen forum is clearly inappropriate, the extent to which the law of the forum is applicable in resolving the rights and liabilities of the parties is a material consideration’.140 Similarly, in John Pfeiffer Pty Ltd v Rogerson,141 the majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) observed that the law to be applied in deciding the rights and duties of the parties might, in some cases, affect whether the court should decline to exercise its jurisdiction and stay the proceedings. It was implicit in this statement, and made explicit in the High Court’s later decision in Puttick v Tenon Ltd,142 that for foreign law to be taken into account, it must be clear that the case will be governed by foreign law. In some cases, the need to apply foreign law will be clear by reason of the pleadings or on the facts (if, for example, the claim is in contract and the contract contains a foreign choice-of-law clause). In other cases, however, the need to apply foreign law may not be so clear. For example, in some tort cases it may be necessary to ‘locate’ the tortious conduct for the purposes both of identifying whether the tort in question was foreign and, if it was, to identify where it occurred, an exercise which may be particularly difficult in cases of tortious omissions.143 Puttick v Tenon Ltd stands as authority for the proposition that the mere likelihood that

foreign law will apply is not a relevant [page 204] consideration in the Voth exercise.144 More is required. As a practical matter, this means that a party seeking a stay may need to explore and establish that the case actually will be governed by foreign law. That may involve insisting that the plaintiff fully particularise its claim prior to the hearing of the stay motion in relation to the geographical location of the facts and matters relied upon to ground the allegedly tortious conduct, or leading evidence on the stay application in relation to the location of the events the subject of the complaint. 8.39 In El-Kharouf v El-Kharouf,145 Burchett AJ of the Supreme Court of New South Wales held that the centrality of Jordanian law to the proceedings before him was an important consideration contributing to his conclusion that a stay should be granted. Similarly, in Seereederei Baco Liner GmbH v Al Aliyu,146 Tamberlin J of the Federal Court of Australia granted a stay of proceedings after observing that the fact that the lex causae would most probably be Guinean law was a ‘cogent consideration’ and a ‘significant factor in the exercise of the court’s discretion’.147 Although neither Burchett AJ in El-Kharouf nor Tamberlin J in Seereederei Baco referred explicitly to the difficulty that would attend proof of (and comprehension of) the relevant foreign lex causae, it is difficult to resist the impression that the identity of the relevant foreign law played a part in those two cases. In Zhang, the High Court was unconcerned at the possibility that the lex causae was French law (the law of New Caledonia) and in Puttick, the High Court was equally unconcerned at the possibility that the lex causae might be New Zealand law. The court in O’Reilly v Western Sussex Hospitals NHS Trust148 was similarly unconcerned about the need to apply English law as the lex causae, Studdert AJ noting that the relevant English law and that of the New South Wales forum were very similar on the question in issue. So far as the exercise of the court’s discretion is concerned, it thus seems that there may be degrees of foreignness: Jordanian and Guinean law seem more foreign than French law, and New Zealand law and English law barely seem foreign at all. 8.40 There is much force, however, in the observation (albeit in a dissenting judgment) of Callinan J in Regie Nationale des Usines Renault SA v Zhang149 that:

No doubt, courts in Australia can and do regularly apply foreign law, but it would be vain to claim that they can, or would do it with the same familiarity and certainty as the courts of the jurisdiction in which it was created.

The significance of foreign law may be elevated when controversial issues under it are anticipated, such that it would be better for them to be decided by the court which can authoritatively rule on them and whose judgments are subject to appeal.150 Apart from added expense in the need to prove foreign law, the fact [page 205] that it must be ‘proved’ as a matter of fact151 and applied, ex hypothesi, by judges without a day to day familiarity with its workings, introduces a risk of imperfect application. This risk may be exacerbated where the foreign law in question needs to be translated into English and where the particular provisions of the foreign law engaged can only sensibly be understood in the context of the relevant foreign statute or body of law as a whole. In James Hardie Industries Pty Ltd v Grigor, Mason P observed that ‘foreign law is capable of proof, but such proof is attendant with significant difficulties and uncertainties’.152 In the same case, Spigelman CJ equated the need to prove the law of New Zealand as a matter of fact, by means of expert evidence, as a ‘significant source of prejudice’.153 Similarly, in Murakami v Wiryadi, Spigelman CJ observed:154 The fact that the court would apply foreign law, or base its own analysis to a substantial degree on foreign law, is a significant factor which must be taken into account in determining whether New South Wales is a clearly inappropriate forum … [T]he need to prove foreign law is itself a source of prejudice. One of the difficulties and uncertainties involved in such proof is … the risk that important aspects of the foreign law will be lost in translation. The need to prove foreign law introduces additional levels of complexity, expense and uncertainty together with the risk of error in the application of foreign law.

In New South Wales, at least, the significance of the difficulties of proving foreign law may now be attenuated as a result of an amendment to the Uniform Civil Procedure Rules 2005 (NSW),155 allowing the court to order (with the consent of all parties) that proceedings be commenced in a foreign court in order to answer a question as to the principles of foreign law or as to their application, or to order (again with the consent of all parties) that the question of foreign law be answered by a referee. In Fleming v Marshall,156 Spigelman CJ observed (obiter) that the availability of this procedure ‘significantly attenuated’ the relevance of the fact that an issue of foreign law must be determined in the proceedings.

8.41 If foreign law is established in the usual way, it is proved and found as fact: see generally, Chapter 17. Appeal from a finding of fact in the Australian forum may be limited, depending on the court from which appeal is sought. In contrast, if the relevant foreign court were to make a determination about its own law there would, in most cases, be the possibility of appeal to a higher court. Thus, the refusal by an Australian court to order a stay of proceedings governed by foreign law may have the effect of depriving one of the parties of the possibility of appellate review of an incorrect decision about foreign law, or at least restricting that right. This was regarded as a significant factor in Studorp Ltd v Robinson,157 which was an appeal from a decision of the New South Wales Dust Diseases Tribunal that it was not a clearly inappropriate forum to consider a claim brought by an Australian resident [page 206] complaining of asbestos-related pleural disease, allegedly as a result of exposure to asbestos in New Zealand. Findings of fact by the Dust Diseases Tribunal are not subject to appeal.158 The New South Wales Court of Appeal regarded that as an important consideration supporting the conclusion, which it might not otherwise have reached, that the Dust Diseases Tribunal had been wrong to hold that it was not a clearly inappropriate forum.159 8.42 In Amwano v Parbery,160 Finkelstein J of the Federal Court of Australia expressed the related but slightly different view that an Australian court should only, as a last resort, if at all, give meaning and content to the Constitution of a foreign country—in that case, Nauru. The New South Wales Court of Appeal expressed the same view about the Constitution of Brunei in Garsec Pty Ltd v His Majesty the Sultan of Brunei.161 It is obviously better for constitutional interpretation to be undertaken by the courts of the relevant foreign country than by an Australian court. However, Finkelstein J went on in Amwano to express the more dubious proposition that: ‘It is also undesirable, but not of course to the same extent as in the case of a Constitution, for this court to interpret the statutes of a foreign country’.162 Similar views were expressed by Harper J at first instance in Puttick v Fletcher Challenge Forests Ltd,163 and by Warren CJ in the Victorian Court of Appeal in the same case,164 but the majority of the High Court found it unnecessary to consider whether such a proposition should be endorsed or ‘rejected as inconsistent with the existence and application of choice-of-law rules’.165

There seems to be no obvious reason for Australian courts to be diffident about their ability to apply foreign statutes, particularly when one remembers that the law in civil law countries is, in effect, entirely statutory. The High Court in Zhang did not think it undesirable that an Australian court should be called on to interpret those provisions of the French Civil Code that were applicable in New Caledonia. 8.43 Resolution of the dispute in question may call not only for application of foreign law but also for an understanding of customs, practices and standards of a particular industry or profession in the foreign country. Obviously, an Australian court is less well equipped to make a judgment about such matters of general impression than the relevant foreign court would be, so this, too, is a relevant factor in considering whether to grant a stay. In Voth itself, one of the factors identified by the majority as indicating a stay was the relevance of the professional standards of accountants in Missouri.166 [page 207] In McGregor v Potts,167 a veterinary surgeon was kicked in the face by a horse while working in England for the defendants, a veterinary practice partnership. She sued the defendants in the Supreme Court of New South Wales and they applied for a stay on forum non conveniens grounds. In coming to the conclusion that New South Wales was a clearly inappropriate forum for the litigation, Brereton J thought it relevant not only that English law would govern the dispute and that almost all the relevant witnesses would be in England, but also that, ‘[a]t the heart of the case will be what are safe employment practices and appropriate professional standards in England’.168

Proceedings pending elsewhere Lis alibi pendens: parallel proceedings on the same subject matter 8.44 Where a defendant applies for a stay of proceedings in the forum on the ground that litigation is pending between the same parties on the same subject matter in another jurisdiction (lis alibi pendens), the court must apply the principles laid down in Voth and require the applicant to establish that the forum is clearly inappropriate.169 In Henry v Henry,170 Dawson, Gaudron, McHugh and Gummow JJ said that parallel litigation may by itself give rise to a

presumption that the institution of proceedings is ‘vexatious’ within the expanded meaning given to that term in Voth: It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue … And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries … the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.

8.45 It does not necessarily follow, however, that the Australian action should be stayed even if it was begun after the foreign one.171 In Henry, Dawson, Gaudron, McHugh and Gummow JJ went on to say that the existence of simultaneous proceedings in different countries with respect to the same controversy is ‘highly relevant’ to the question of whether the local proceedings are oppressive, but not conclusive.172 Questions of priority in commencing the action, recognition of an eventual foreign judgment, the connection between the parties and the subject [page 208] matter of the litigation with the jurisdiction in question, and equality of access to justice in the competing jurisdictions, are all relevant considerations.173 8.46 In CSR Ltd v Cigna Insurance Australia Ltd,174 the same four judges, joined by Toohey and Kirby JJ, stated a rather different proposition: Neither principle nor authority supports the view that the institution of foreign proceedings is, of itself, vexation or oppression according to the principles of equity. Similarly, neither principle nor authority supports the view that foreign proceedings become vexatious or oppressive in accordance with those principles in the event that the party against whom they are brought later commences proceedings with respect to the same subject-matter in this country.

8.47 It is apparent from these passages that the order in which proceedings are brought, and by whom they are brought, are significant. A plaintiff who institutes proceedings in Australia having first sued on the same claim abroad, or having actively participated in it as defendant, is likely to face a successful application to have the Australian proceedings stayed under Voth principles, because suing in Australia in these circumstances is ‘prima facie vexatious or oppressive in the strict sense of those terms’.175 Given that the overall question is whether the Australian forum is ‘clearly inappropriate’, however, a stay may still be refused

in an appropriate case such as, for example, matrimonial proceedings about property in Australia.176 If the plaintiff sues in Australia first, however, the institution of foreign proceedings on the same claim does not necessarily make the Australian proceedings vulnerable to a stay, but their continuation may do so.177 Foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing to be gained by them over and above what may be gained in local proceedings.178 Thus, plaintiffs in this position have been allowed to point to the different remedies that a foreign jurisdiction offers,179 or the tactical advantage of obtaining a judgment that is effective against the defendant’s assets.180 8.48 The principles stated in CSR do not extend so far as to make it vexatious or oppressive in the Voth sense to institute proceedings in Australia with the motive [page 209] of persuading the other party not to commence litigation on the same claim in another country.181 8.49 If the defendant abroad brings proceedings in Australia as plaintiff in relation to the same subject matter, the existence of the foreign proceedings does not necessarily indicate that the Australian proceedings should be stayed.182 Again, however, because the overall question is whether the Australian forum is ‘clearly inappropriate’, a stay may still be granted in an appropriate case.183

Related proceedings 8.50 Different considerations arise where the proceedings in the forum and those abroad are related but raise different issues, either between the same parties, or because different parties are involved in each of the proceedings although based on a common sub-stratum of fact. In CSR Ltd v Cigna Insurance Australia Ltd,184 Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ said: In cases such as the present, where different issues are involved in the local and foreign proceedings, albeit that the different proceedings arise out of the same sub-stratum of fact, the question is not whether the Australian court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceedings. Rather, the question must be whether, having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense of

those terms, namely, that they are ‘productive of serious and unjustified trouble and harassment’ or ‘seriously and unfairly burdensome, prejudicial or damaging’.

Thus, the court should consider the Australian proceedings in the context of all proceedings arising out of the ‘same sub-stratum of fact’, in Australia or abroad, in order to determine whether continuation of the Australian proceedings would be vexatious or oppressive in the Voth sense, rather than considering only whether the Australian forum is appropriate for the litigation of the issues involved in the Australian proceedings.185 Proceedings that are brought in Australia for the dominant purpose of preventing a party from pursuing remedies available abroad, but not in Australia, are oppressive in the Voth sense.186 8.51 It is important in this context to discern whether the Australian and foreign proceedings should properly be regarded as related, because if they are not, the Voth test should be applied to the Australian proceedings considered in isolation. For example, in TS Production LLC v Drew Pictures Pty Ltd,187 proceedings were instituted [page 210] in both Australia and Illinois claiming copyright in relation to the same film, entitled ‘The Secret’. The plaintiffs in the Illinois proceedings sought a stay of the Australian proceedings.188 At first instance, Sundberg J of the Federal Court granted the stay, holding that the plaintiffs in Illinois had instituted their proceeding in the most appropriate place, given that the film was first published in the United States and had its largest audience there, and that continuation of the Australian proceedings was vexatious and oppressive ‘having regard to the dispute between the parties as a whole’.189 On appeal, a Full Court of the Federal Court reversed Sundberg J’s grant of a stay. Although the Australian and Illinois proceedings shared a common sub-stratum of facts, the rights in issue were quite different. The rights sought to be enforced in the Australian proceedings were rights under the Copyright Act 1968 (Cth); the rights sought to be enforced in the Illinois proceedings had their origin in United States statutory and common law.190 The fact that Illinois was the most appropriate place to consider the American rights did not make an Australian court an inappropriate place to consider the Australian rights.191 In Whung v Whung,192 O’Reilly J of the Family Court of Australia held that the ‘matter in issue’ in Australian proceedings for spousal property settlement

was not the same as that raised in divorce proceedings brought earlier in Taiwan, because the two proceedings involved different factual inquiry and the application of different legal principles. Thus, O’Reilly J held that it was appropriate to allow the Australian proceedings to continue, because the wife was seeking a legitimate juridical advantage in Australia by pursuing a property settlement order that would not be available in the divorce proceedings in Taiwan. One year later, in Yeo v Huy (No 2),193 Murphy J of the Family Court of Australia held exactly the opposite, without referring to Whung: Australian proceedings for property settlement and divorce proceedings brought earlier in Taiwan were part of the same controversy because they arose out of the same sub-stratum of fact, which led to the conclusion that the Australian court was a clearly inappropriate forum to hear the property proceedings, as the Taiwanese court had jurisdiction to make a property settlement order. The contrast between these two cases graphically illustrates the proposition that any decision about when two proceedings are related lies, to some extent, in the eye of the beholder. O’Reilly J in Whung admitted to looking ‘at the micro level’,194 at which a decision about how property should be divided between former spouses is different from a decision about whether they should be divorced. At a less [page 211] ‘micro level’, the question of how property should be divided between former spouses is part of the larger issue of the terms on which they should be divorced, which is how Murphy J saw it in Yeo.

Exceptions 8.52 There are two exceptions to the operation of the principles stated in Henry and CSR and considered at 8.44–8.51. In the first place, Voth principles do not apply where a related proceeding is pending in another Australian superior court or an application is made to cross-vest them. In that case either the provisions of s 5(2)(i) of the cross-vesting legislation apply,195 or the Service and Execution of Process Act 1992 (Cth) s 20(1) does. 8.53 Second, the Voth test is not applicable where the applicant seeks only a temporary stay pending determination of the foreign proceedings. In those circumstances, the court has regard to the following criteria, which were first stated by Lockhart J in Sterling Pharmaceuticals Pty Ltd v Boots & Co (Aust)

Pty Ltd,196 and were adopted by a majority of the High Court of Australia in Henry v Henry.197 They have been applied in many cases since,198 including intra-Australian cases falling outside the operation of the cross-vesting scheme:199 which proceeding was commenced first; whether the termination of one proceeding is likely to have a material effect on the other; the public interest; the undesirability of two courts competing to see which of them determines common facts first; consideration of circumstances relating to witnesses; whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted; the undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues; how far advanced the proceedings are in each court; [page 212] the law should strive against permitting multiplicity of proceedings in relation to similar issues; generally balancing the advantages and disadvantages to each party.

Availability of witnesses and other evidence 8.54 The list of relevant factors stated by Lord Goff in Spiliada included factors affecting convenience or expense such as the availability of witnesses.200 As noted at 8.18 above, the Voth majority said that Lord Goff’s discussion of relevant connecting factors ‘provides valuable assistance’.201 The expense and inconvenience of bringing witnesses and documentary evidence from foreign countries to Australia and the expense of translation into English may be relevant factors,202 although they are often counterbalanced by the

corresponding expense and inconvenience of sending Australian witnesses and documents to the foreign forum if a stay of Australian proceedings were to be granted.203 This factor may be of diminishing importance, however, now that all Australian jurisdictions (except the Australian Capital Territory) have made provision for the taking of evidence from witnesses outside Australia directly by audio or video link,204 and both federal courts and state and territory courts may accept into evidence electronic copies of documents,205 although copies of documents in foreign countries cannot be adduced unless the court so orders and a copy has been given to the other side at least 28 days before it is adduced in evidence.206 It is becoming increasingly common for judges considering stay applications to observe that the expense and inconvenience (and hence the significance of these factors) are less than they would once have been, given high-speed electronic communication and the audio-visual aids that are now [page 213] available.207 The courts’ enthusiasm for the use of audio-visual technology is more muted, and the significance of this factor accordingly less telling, when the witness who would give evidence by video-link does not speak English and must be assisted by a translator.208 8.55 The need to call foreign witnesses is of greater significance in circumstances where those witnesses are not within the control of the party wishing to call them. In such circumstances, the testimony of the witnesses could only be compelled (in the foreign country) through what may be a time consuming and expensive letter of request procedure which may in turn delay the hearing of the proceedings.209 8.56 The significance or otherwise of foreign witnesses will also be a function of their relative importance to the case. That might have practical implications in terms of the availability or desirability of their evidence being heard by video link, for example. It may also be the case that foreign witnesses, including party witnesses, may be able to point to some significant prejudice in having to travel to Australia for what may be an indeterminate time, given the nature of the particular case, to give evidence. Thus, in McGregor v Potts,210 detailed evidence was led as to the disruption to English medical practitioners and, more particularly, the disruption to their patients, the hospitals and the practices in which they worked, and the attendant interference with professional obligations,

that coming to Australia to give evidence would entail. If such evidence is to be led on a stay application, it should be as detailed and concrete as possible.

The anchoring effect of s 18 of the Australian Consumer Law (formerly s 52 of the Trade Practices Act 1974 (Cth)) 8.57 Many countries have no direct equivalent in their law to the action for misleading and deceptive conduct in breach of the Australian Consumer Law s 18211 (formerly the Trade Practices Act 1974 (Cth) s 52). For that reason, staying Australian proceedings involving a s 18 claim might deprive the plaintiff of the ‘legitimate juridical advantage’ of being able to seek redress for misleading or deceptive conduct as understood in Australia. The plaintiff could only retain that advantage in a foreign forum if the relevant foreign law had some applicable equivalent to s 18, or if the foreign court would apply Australian law in general, and s 18 in particular, to the claim in question. In relation to the latter possibility, Australian courts have been much influenced by the following comments of Browne-Wilkinson V-C in Australian [page 214] Commercial Research & Development Ltd v ANZ McCaughan Merchant Bank Ltd212 about the statutory predecessor to the Australian Consumer Law: The Australian Act provides a statutory remedy in addition to common law remedies in relation to the provision of services to Australians both in relation to acts done in Australia and apparently in certain circumstances to acts done outside Australia by non-Australians but having an impact within Australia. I have considerable doubts whether the English court if called on to adjudicate on this matter would apply the Australian Trade Practices Act 1974 as part of the applicable law in this action. It may be that it would do, but it seems to me unlikely. Even if the English court did apply the Trade Practices Act in deciding this case, it is manifest that the Australian courts are very much better qualified to deal with that Act than any English court would be.

If s 18 itself or some equivalent relief is not available in the relevant foreign forum, the presence of a s 18 claim may serve as an anchor keeping proceedings in Australia that might otherwise be stayed. 8.58 The availability of relief under the Australian Consumer Law in the foreign forum will be a function of that forum’s choice-of-law rules, including

how it would characterise the claim. If, for example, the plaintiff’s claim is for damages under the Australian Consumer Law s 236 in relation to a contravention of the Australian Consumer Law s 18, the foreign court may characterise the statutory claim as a ‘wrong’ for its conflict of laws purposes and apply its choice-of-law rule for torts or wrongs. That rule may or may not point to Australian law as, for example, the law of the place of the wrong or the proper law of the wrong, depending upon what the foreign forum’s choice-of-law rule happens to be. If, on the other hand, the relevant relief being sought for contravention of s 18 is the variation of a contract pursuant to the Australian Consumer Law s 243(b), the foreign court might characterise that claim for relief as ‘contractual’ and, as such, apply its choice-of-law rule for contract. In such a case, the claim for relief under s 243(b) might only be entertained in the foreign court if the proper law of the contract is Australian. 8.59 A graphic example of the anchoring effect of a s 18 claim (formerly a s 52 claim) is Reinsurance Australia Corp Ltd v HIH Casualty and General Insurance Ltd.213 In that case, an Australian insurance company and its subsidiary in Monaco entered into contracts of insurance and reinsurance with companies incorporated in the United Kingdom and the United States. The Australian company and its subsidiary sued in the Federal Court of Australia, claiming that they were induced to enter into the contracts by the misleading and deceptive conduct of the United Kingdom and American companies. All of the contracts contained a ‘truth of statements’ clause, which was designed to limit or exclude any liability for misrepresentation or non-disclosure. In similar litigation in the United Kingdom, it had been held that the ‘truth of statements’ clause was effective to preclude an insurer from avoiding the contract except in the case of a fraudulent misrepresentation.214 In similar litigation [page 215] in the United States, it had been held that the ‘truth of statements’ clause was a complete answer to any claim based on misrepresentation or non-disclosure.215 In Australia, however, it had previously been held that a ‘truth of statements’ clause did not preclude a claim under the Trade Practices Act 1974 (Cth) if the agreement itself was induced by misleading conduct.216 The respondents sought temporary or permanent stays of the Australian proceedings because related proceedings in the United Kingdom and the United

States were already well advanced. In relation to the applications for a permanent stay,217 Jacobson J applied the principles stated in Henry v Henry and CSR Ltd v Cigna Insurance Australia Ltd (see 8.44–8.49 above) and held that but for the legitimate juridical advantage arising from the Trade Practices Act claim, continuation of the Australian proceedings would be vexatious or oppressive in the Voth sense because the United Kingdom proceedings had been on foot for over three years and ‘vast documentary discovery’ had already been given there.218 However, after considering expert evidence about whether a court in the United Kingdom would apply s 52 (now s 18), Jacobson J concluded that there was a real risk that at least some of the relief claimed under the Trade Practices Act would not be available in the United Kingdom.219 There was no evidence to suggest that a s 52 claim could be heard in the United States.220 Jacobson J said that the co-existence of local and foreign proceedings is not vexatious or oppressive where relief is available in one forum that is not available in the other.221 8.60 There are other examples of a stay being refused because there was no equivalent to the Trade Practices Act 1974 (Cth) s 52 in the relevant foreign forum, and because s 52 might not be applied there.222 It is desirable in such cases that the court should not simply assume that relief under the Australian Consumer Law s 18 or its equivalent will not be available in the foreign forum, but should make some affirmative effort, either by hearing expert evidence or by considering the [page 216] relevant foreign laws, to determine whether that is so before refusing to grant a stay.223 Otherwise, the plaintiff can anchor its proceedings in Australia simply by a combination of pleading s 18 and making assertions about foreign law. If the court’s consideration of the relevant foreign law shows that protection equivalent to that given by s 18 is available in the foreign forum, then a stay should be granted if the other Voth factors so indicate.224 For example, in Armacel Pty Ltd v Smurfit Stone Container Corp225 evidence was led and ultimately accepted that the plaintiff’s Trade Practices Act claim could be litigated in the United States District Court. This evidence was coupled with an undertaking by the party seeking the stay not to object to the litigation of the Trade Practices Act claim in that forum.

Other factors Exclusive forum selection agreements 8.61 Where there is an exclusive forum selection agreement by which the parties have agreed to litigate all disputes in a jurisdiction other than the Australian forum, the presence of such an agreement is not determinative of the question whether a stay should be granted, but it is much more than merely one factor to be considered among many others in the usual forum non conveniens analysis. There is a strong bias in favour of keeping the parties to their agreement to litigate elsewhere.226 The party who seeks to proceed in the Australian forum despite the exclusive foreign forum agreement bears the burden of satisfying the court that there are strong grounds for proceeding in the forum: see, generally, Chapter 7, and particularly 7.80.

Hardship to the litigants 8.62 The plaintiff who has chosen the Australian forum may suffer financial or other hardships if the Australian proceedings are stayed and he or she is forced to pursue the claim in another country. Equally, the defendant who seeks to stay the Australian proceedings may suffer financial or other hardships if the stay is refused and he or she is forced to litigate in Australia. These are appropriate factors to be considered in a forum non conveniens analysis, although they often effectively cancel one another out in the court’s analysis.227 [page 217]

The availability of insurance 8.63 The defendant may be insured against liability for proceedings brought in the foreign forum but not for proceedings brought in Australia. This factor may be taken into account when considering whether to stay the Australian proceedings, although its impact is greater in cases when the overall connection to the Australian forum is relatively weak and correspondingly weaker when the overall connection to the Australian forum is strong.228

Treating all issues arising out of a marriage breakdown

8.64 There is a principle in family law cases that, where possible, proceedings should be heard in the forum best able to consider all issues arising out of a marriage breakdown: see 27.28.229This factor has particular significance if the dispute includes issues about the disposition of real property, as the court in the situs of the property is the one best placed to make orders for its disposition.230 _________________________ 1.

See, for example, Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; 79 ALR 9.

2.

A S Bell, Forum Shopping and Venue in Transnational Litigation, Oxford University Press, London, 2003, p 27.

3.

(1988) 169 CLR 41; 80 ALR 362.

4.

Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 567; 187 ALR 1 at 59, at [200] per Callinan J; BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at 493; 211 ALR 523 at 585, at [258] per Callinan J (‘[O]ne person’s legitimate advantage is another person’s disadvantage’).

5.

(1988) 165 CLR 197 at 241; 79 ALR 9 at 40.

6.

(1908) 6 CLR 194 at 198–9 per Griffith CJ (with whom Barton, O’Connor and Higgins JJ agreed), quoting Logan v Bank of Scotland (No 2) [1906] 1 Ch 141 at 151 per Sir Gorell Barnes P.

7.

Anglo-Australian Foods Ltd v Von Planta (1988) 20 FCR 34 at 44 per Lee J.

8.

[1936] 1 KB 382 at 398.

9.

[1907] 2 Ch 205.

10. See, for example, Macmaster v Macmaster (1833) 11 SC 685; McMorine v Cowie (1845) 7 SC (2d) 270; Parken v Royal Exchange Assurance Co (1846) 8 SC (2d) 365; Tulloch v Williams (1846) 8 SC (2d) 657. 11. 1926 SC(HL) 13 at 22. 12. Lis alibi pendens is considered at 8.44–8.49 below. 13. H Gaudemet-Tallon, ‘France’, Declining Jurisdiction in Private International Law (ed J Fawcett), Oxford University Press, New York, 1995, p 174. 14. See note 13, pp 177–8. 15. See note 13, p 174. 16. H Schack,‘Germany’,Declining Jurisdiction in Private International Law (ed J Fawcett), Oxford University Press, New York, 1995, p 191. 17. The Maggie Hammond, 76 US (9 Wall) 435, 457 (1869); The Belgenland, 114 US 355, 365–6 (1885). 18. Gulf Oil Corp v Gilbert, 330 US 501, 67 S Ct 839 (1947); Koster v American Lumbermens Mutual Casualty Co, 330 US 518, 67 S Ct 828 (1947). 19. M Davies, ‘Time to Change the Federal Forum Non Conveniens Analysis’ (2002) 77 Tul L Rev 309 at 315. 20. See note 19 at 318–19. 21. [1974] AC 436. 22. [1987] 1 AC 460. 23. [1998] AC 854.

24. [2000] 4 All ER 268. 25. [1987] 1 AC 460 at 476. 26. See note 25 at 481. See also VTB Capital plc v Nutritek International Corp [2013] 2 WLR 398 at 407, at [12] per Lord Mance JSC. 27. [1987] 1 AC 460 at 477–8. See also VTB Capital plc v Nutritek International Corp [2013] 2 WLR 398 at 407, at [43]–[67] per Lord Mance JSC. 28. [1987] 1 AC 460 at 482–4. 29. Lubbe v Cape Plc (No 2) [2000] 4 All ER 268 at 275 per Lord Bingham. 30. See note 29. 31. Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 482 per Lord Goff; Connelly v RTZ Corp Plc [1998] AC 854 at 873 per Lord Goff; Lubbe v Cape Plc (No 2) [2000] 4 All ER 268 at 275 per Lord Bingham. 32. (1980) 47 FLR 441. 33. [1979] WAR 19. 34. (1988) 165 CLR 197; 79 ALR 9 (Brennan, Deane and Gaudron JJ; Wilson and Toohey JJ dissenting). 35. For a cogent criticism of the majority reasoning, see M Pryles, ‘Judicial Darkness on the Oceanic Sun’ (1988) 62 ALJ 774. 36. (1990) 171 CLR 538; 97 ALR 124. 37. See note 36. 38. Now UCPR 2005 (NSW) Sch 6 para (e). 39. (1990) 171 CLR 538 at 572; 97 ALR 124 at 146. 40. See note 39 at CLR 590; ALR 160. 41. See note 39 at CLR 557; ALR 135. 42. See note 39 at CLR 558–9; ALR 137. 43. (1908) 6 CLR 149. 44. (1990) 171 CLR 538 at 559; 97 ALR 124 at 137 per Mason CJ, Deane, Dawson and Gaudron JJ. 45. See note 44 at CLR 561; ALR 138–9. 46. Gulf Oil Corp v Gilbert, 330 US 501, 508 (1947) (‘Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin’). Although this factor is usually used as a ground supporting dismissal, there are examples of courts supporting a refusal to dismiss by referring to the relatively light load on their docket or by noting that, although busy, they bring cases to trial promptly: see M Davies, note 19 above, at 363–4. 47. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 561; 97 ALR 124 at 139 per Mason CJ, Deane, Dawson and Gaudron JJ. See also James Hardie Industries Pty Ltd v Grigor (1998) 45 NSWLR 20; and, in the United Kingdom, Lubbe v Cape Plc (No 2) [2000] 4 All ER 268. 48. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564; 97 ALR 124 at 141 per Mason CJ, Deane, Dawson and Gaudron JJ. 49. Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247; 79 ALR 9 at 45 per Deane J. 50. See note 49 at CLR 247–8; ALR 45–6. 51. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565–6; 97 ALR 124 at 141 per Mason CJ,

Deane, Dawson and Gaudron JJ. See Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460 at 477– 8, 482–4 per Lord Goff of Chieveley. 52. Except those involving New Zealand as the other forum: see 8.24 below. 53. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 559; 97 ALR 124 at 137 per Mason CJ, Deane, Dawson and Gaudron JJ. 54. See note 53 at CLR 558, 565–6, 571; ALR 136–7, 142, 146. See also Henry v Henry (1996) 185 CLR 571 at 589; 135 ALR 564 at 578 per Dawson, Gaudron, McHugh and Gummow JJ. 55. In Raveh v Official Receiver of the State of Israel [2002] WASCA 27, it was held that the plaintiff can apply for a stay of its own proceedings, at least where the defendant has made a counterclaim. 56. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564; 97 ALR 124 at 140–1 per Mason CJ, Deane, Dawson and Gaudron JJ. See 8.20 below. Prior leave is required in the Federal Court (Federal Court Rules 2011 (Cth) r 10.43), the Supreme Court of the Northern Territory (Supreme Court Rules (NT) r 7.02(1)) and the Supreme Court of Western Australia (Rules of the Supreme Court 1971 (WA), O 10 r 1A); see generally, Chapter 3. 57. See Piatek v Piatek (2010) 245 FLR 137 at 163–4, at [127] per Douglas J; Telesto Investments Ltd v UBS AG (2012) 262 FLR 119 at [184] per Ward J. 58. Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 245; 79 ALR 9 at 43–4 per Deane J. 59. Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460 at 478 per Lord Goff of Chieveley. 60. But a plaintiff cannot by an unlawful act produce a legitimate advantage: In the Marriage of Van Rensburg and Paquay (1993) 16 Fam LR 680. 61. In the Marriage of Gilmore (1993) 16 Fam LR 285. 62. Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460 at 482–4 per Lord Goff of Chieveley. 63. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 566; 97 ALR 124 at 142 per Mason CJ, Deane, Dawson and Gaudron JJ. This item is not significant in matters such as matrimonial property disputes where the law of whatever forum is selected will be applied: In the Marriage of Gilmore (1993) 16 Fam LR 285 at 292 per Fogarty J. 64. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564; 97 ALR 124 at 140–1 per Mason CJ, Deane, Dawson and Gaudron JJ. 65. FCR 2011 r 10.43 (this provision also applies to proceedings in the High Court of Australia: see HCR 2004 r 9.07.1); SCR (NT) r 7.02(1); RSC (WA) O 10 r 1A. In all other jurisdictions, initiating process can be served out of the jurisdiction without prior leave: see generally Chapter 3. 66. In the Marriage of Gilmore (1993) 16 Fam LR 285; Steen v Black (2000) FLC 93-005; Piatek v Piatek (2010) 245 FLR 137; Beidenhope v Cantanor [2011] FamCA 669; Hugh v Skinner [2012] FamCA 145; Yeo v Huy (No 2) [2012] FamCA 541. 67. Rogers v Rogers (2010) 44 Fam LR 235. 68. Monticelli v McTiernan (1995) 19 Fam LR 108 (FC); Singh v Singh (2010) 44 Fam LR 85 (whether husband required to pay dowry under Indian law); Chen v Tan [2012] FamCA 225. 69. (1996) 185 CLR 571; 135 ALR 564. See, for example, Navarro v Jurado (2010) 247 FLR 44; 44 Fam LR 310; Russell v Russell (No 5) [2012] FamCA 917. 70. (1994) 181 CLR 639; 122 ALR 1. See, for example, Pascarl v Oxley [2013] FamCAFC 47. 71. As stated by Jacobs J in Helicopter Utilities Pty Ltd v Australian National Airlines Commission [1962] NSWR 747 at 751. See also Mills v Mills (1938) 60 CLR 150 at 181 per Dixon J.

72. [1999] NSWSC 526. 73. See, for example, R Garnett, ‘Stay of Proceedings in Australia: A “Clearly Inappropriate” Test?’ (1999) 23 Melb UL Rev 30. 74. P E Nygh & M Davies, Conflict of Laws in Australia, 7th ed, Butterworths, Sydney, 2002, pp 129–30. 75. (2008) 238 CLR 265; 250 ALR 582. 76. See note 75 at CLR 282; ALR 590, at [29] per French CJ, Gummow, Hayne and Kiefel JJ. 77. See note 75 at CLR 287; ALR 591, at [38] per Heydon and Crennan JJ. 78. In Union Shipping New Zealand Ltd v Morgan (2002) 54 NSWLR 690 at 728, at [98], Heydon JA said that ‘academic legal literature is, like Anglo-Saxon literature, largely a literature of lamentation and complaint’. 79. In Manifest Shipping Co Ltd v Uni-Polaris Insurance Co Ltd [2003] 1 AC 469 at 482, Lord Clyde said that a judicial solution to confine the effect of the Marine Insurance Act 1906 (United Kingdom) s 17 to pre-contract negotiations ‘appears to be past praying for’. 80. Trans-Tasman Proceedings Act 2010 (Cth) s 19(2). 81. Forum selection agreements are considered in Chapter 7. 82. Civil Law (Wrongs) Act 2002 (ACT) s 220; Jurisdiction of Courts (Foreign Land) Act 1989 (NSW) s 3. 83. Civil Law (Wrongs) Act 2002 (ACT) s 220(2). 84. Jurisdiction of Courts (Foreign Land) Act 1989 (NSW) s 4. 85. Civil Law (Wrongs) Act 2002 (ACT) s 220(3). 86. (2002) 210 CLR 491 at 503; 187 ALR 1 at 8, at [24] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 87. (1990) 171 CLR 538 at 558; 97 ALR 124 at 136 per Mason CJ, Deane, Dawson and Gaudron JJ. 88. See, for example, Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; 187 ALR 1; Puttick v Tenon Ltd (2008) 238 CLR 265; 250 ALR 582; cf. McGregor v Potts (2005) 68 NSWLR 109. 89. In Colosseum Investment Holdings Pty Ltd v Vanguard Logistics Services Pty Ltd [2005] NSWSC 803 at [72], Palmer J said that a first instance judge should be permitted a wry smile at this advice from the High Court because ‘in the present judicial climate, a judgment following that advice would receive a frosty welcome in the Court of Appeal’. Cf. Navarro v Jurado (2010) 247 FLR 44; Fam LR 310 at 313, at [10] per Thackray J, observing that the Voth majority’s views on this proposition have not been repudiated by the High Court. 90. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565; 97 ALR 124 at 141–2 per Mason CJ, Deane, Dawson and Gaudron JJ. 91. See note 90. 92. (2010) 247 FLR 44; 44 Fam LR 310 at 313, at [8] per Thackray J. 93. See, for example, Chen v Tan [2012] FamCA 225 at [37] per Kent J describing his resistance to the ‘temptation’ to deliver short form reasons as contemplated in Voth. Kent J’s reasons for concluding that Australia was not an inconvenient forum occupy 166 paragraphs: see [2012] FamCA 225 at [64]–[230]. See also Telesto Investments Ltd v UBS AG (2012) 262 FLR 119 (218 paragraphs of explanation); Whung v Whung (2011) 45 Fam LR 269 (215 paragraphs of explanation). 94. For some rare examples of tersely stated conclusions, without extensive reasons, see Lew v Priester [2012] VSC 57 at [27] per Pagone J (‘the application must fail’); Lambert Leasing Inc v QBE Insurance Australia Ltd (2011) 16 ANZ Ins Cas 61-896 at [30]–[31] per Einstein J (listing factors and

conclusion without further explanation); Ace Insurance Ltd v Moose Enterprise Pty Ltd (2009) 15 ANZ Ins Cas 61-818 at [9] per Brereton J (one paragraph rejection of application for a stay). 95. [2013] 2 WLR 398 at 427, at [88] per Lord Neuberger JSC. 96. Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 465 per Lord Templeman, expressing the hope that: ‘[T]he judge will be allowed to study the evidence and refresh his memory of [the principles] in the quiet of his room without expense to the parties; that he will not be referred to other decisions on other facts; and that submissions will be measured in hours and not days’. 97. See note 50 above. 98. (1996) 185 CLR 571 at 589; 135 ALR 564 at 578 per Dawson, Gaudron, McHugh and Gummow JJ. 99. (2002) 210 CLR 491 at 520–1; 187 ALR 1 at 21, at [78]–[79] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 100. See, for example, Whung v Whung (2011) 45 Fam LR 269 at 306, at [226] per O’Reilly J; Yeo v Huy (No 2) [2012] FamCA 541 at [37] per Murphy J. 101. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565; 97 ALR 124 at 141 per Mason CJ, Deane, Dawson and Gaudron JJ. 102. (2008) 238 CLR 265 at 282; 250 ALR 582 at 589, at [27] per French CJ, Gummow, Hayne and Kiefel JJ. 103. See, for example, Ivanovski v Perdacher [2006] NSWSC 978 at [20] per Palmer J; Eurogold Ltd v Oxus Holdings (Malta) Ltd [2007] FCA 811 at [60]–[61] per Siopis J; Bogart Lingerie Ltd v Steadmark Pty Ltd [2013] VSC 212 at [58] per Daly AsJ. See also Garsec Pty Ltd v His Majesty the Sultan of Brunei (2008) 250 ALR 682 at 684, at [6] where Spigelman CJ described the process as ‘weighing of disparate and incommensurable factors for purposes of formulating an overall judgment’, producing a decision in which an appeal court is reluctant to intervene. 104. Colosseum Investment Holdings Pty Ltd v Vanguard Logistics Services Pty Ltd [2005] NSWSC 803 at [77] per Palmer J. 105. The version of this paragraph that appeared in the previous edition of this book was quoted to this point with apparent approval in Navarro v Jurado (2010) 247 FLR 374; 44 Fam LR 310 at 342–3, at [166] per O’Ryan J. 106. [2006] 2 Qd R 81 at [96]–[105]. 107. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 571; 97 ALR 124 at 145 per Mason CJ, Deane, Dawson and Gaudron JJ. 108. (2010) 268 ALR 377 at 385–6, at [32]–[34] per Spigelman CJ (with whom McColl and Young JJA agreed). 109. (2011) 279 ALR 737 at 750, at [58]–[59] per MacFarlan JA (with whom Spigelman CJ and Sackville JA agreed). 110. (1936) 55 CLR 499 at 504–5 per Dixon, Evatt and McTiernan JJ. The House principle is that the primary judge’s exercise of discretion should not be disturbed merely because the appellate judges would have exercised the discretion differently, but only if the judge has made some error in exercising the discretion, such as by acting upon the wrong principle or by being influenced by extraneous or irrelevant matters. 111. (1979) 142 CLR 531 at 551–2; 23 ALR 405 at 422–3. In Warren, the court held that an appellate court is in as good a position as the primary judge to draw an inference from undisputed or established facts. It will give respect and weight to the conclusion of the trial judge but once having reached its own conclusion will not shrink from giving effect to it. 112. In Murakami, there was no elaboration of the argument that Warren should apply rather than House, so

the court applied the latter: (2010) 268 ALR 377 at 386, at [35] per Spigelman CJ (with whom McColl and Young JJA agreed). In Fleming, there had been only limited argument on the issue and the court was satisfied that the applicant would have satisfied the more stringent House test, in any event: (2011) 279 ALR 737 at 750, at [60] per MacFarlan JA (with whom Spigelman CJ and Sackville JA agreed). 113. [2012] NSWCA 382. 114. [2012] NSWCA 382 at [7] per Allsop P; [55]–[56] per Hoeben JA. 115. (2010) 247 FLR 44; 44 Fam LR 310 at 313–14, at [7]–[18] per Thackray J; at 331, at [117] per O’Ryan J; at 351, at [227]–[228] per Ryan J. 116. See note 115 at 314, at [13] per Thackray J. 117. [2012] FCA 465. 118. See note 117 at [56]–[57] per Foster J, citing Ex parte Bucknell (1936) 56 CLR 221 and Oswal v Burrup Fertilisers Pty Ltd (recs and mgrs apptd) (2011) 85 ACSR 531 at 534–5, at [11]–[14] per Mansfield and Foster JJ. 119. See note 117 at [58] per Foster J. 120. (2008) 238 CLR 265 at 295; 250 ALR 582 at 596, at [50] per Heydon and Crennan JJ. 121. Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 476 per Lord Goff: ‘The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action …’. 122. Gulf Oil Corp v Gilbert, 330 US 501, 506–7 (1947); Piper Aircraft Co v Reyno, 454 US 235, 254, note 22 (1981) (‘At the outset of any forum non conveniens inquiry, the court must determine whether there exists an alternative forum’). 123. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 558–9; 97 ALR 124 at 137 per Mason CJ, Deane, Dawson and Gaudron JJ. 124. (2008) 250 ALR 682 at 712, at [141]. 125. See note 124. See also Kim Michael Productions Pty Ltd v Tropical Islands Management Ltd [2010] NSWSC 269 at [80]–[84] per Howie J. 126. (2008) 172 FCR 433 at 440; 252 ALR 1 at [20]. 127. (2003) 254 ALR 29. This case, and the ‘anchoring’ effect of relief under the Australian Consumer Law s 18 (formerly the Trade Practices Act 1974 (Cth) s 52) are considered in greater detail at 8.57 below. 128. See note 127 at 60, at [293]. 129. See, for example, Hugh v Skinner [2012] FamCA 145 at [36]–[43] per Cleary J describing the ‘onus’ on the applicant to show that the relevant foreign forum had jurisdiction to hear the matter. Although Cleary J said that this was a ‘significant matter’, not a dispositive one (at [36]), she went on to consider whether the applicant had discharged the ‘onus’ of establishing the availability of the foreign forum. 130. (2011) 279 ALR 737 at 753, at [74] per Macfarlan JA (with whom Spigelman CJ and Sackville JA agreed). 131. See note 130 at 753, at [76]. 132. Henry v Henry (1996) 185 CLR 571 at 587; 135 ALR 564 at 578 per Dawson, Gaudron, McHugh and Gummow JJ; Yeo v Huy (No 2) [2012] FamCA 541 at [47] per Murphy J. 133. See above, notes 28, 51, 61 and 62. 134. [2013] FCA 250.

135. See note 134 at [14] per Barker J. 136. (2002) 210 CLR 491; 187 ALR 1. 137. See note 136 at CLR 521, ALR 21–2 at [81]. 138. (2008) 238 CLR 265 at 284; 250 ALR 582 at 590, at [31]. 139. See, for example, Pocock v Universal City Studios [2012] NSWSC 1481 at [32] per RA Hulme J (applicability of Californian law ‘a significant factor’); Moldauer v Constellation Brands Inc [2013] SASC 38 at [19] per Kourakis CJ (relevance of Californian law led ‘inexorably’ to decision to stay). 140. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 566; 97 ALR 124 at 142 per Mason CJ, Deane, Dawson and Gaudron JJ. See also the observation of Sackville AJA in Fleming v Marshall (2011) 279 ALR 737 at 758, at [104], that it is possible for New South Wales to be a clearly inappropriate forum notwithstanding that New South Wales law is the proper law for determining the dispute. 141. (2000) 203 CLR 503 at 521; 172 ALR 625 at 633 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 142. (2008) 238 CLR 265 at 277–9; 250 ALR 582 at 587–8, at [17]–[21] per French CJ, Gummow, Hayne and Kiefel JJ. 143. See generally 20.5–20.13. 144. (2008) 238 CLR 265 at 282–3; 250 ALR 582 at 590, at [31]–[32] per French CJ, Gummow, Hayne and Kiefel JJ. 145. [2004] NSWSC 187. 146. [2000] FCA 656. 147. See note 146 at [22]. 148. [2012] NSWSC 909 at [40] per Studdert AJ. 149. (2002) 210 CLR 491 at 563; 187 ALR 1 at 56, at [192]. 150. Konamaneni v Rolls Royce Industrial Power (India) Ltd [2002] 1 WLR 1269 at 1299, at [170] per Lawrence Collins J. Compare, however, Singh v Singh (2010) 44 Fam LR 90 (no stay despite need to apply Indian dowry law; no proceedings existing or contemplated in India). 151. See Chapter 17. 152. (1998) 45 NSWLR 20 at 42. 153. See note 152 at 37. 154. (2010) 268 ALR 377 at 406, at [150] per Spigelman CJ (with whom McColl and Young JJA agreed). See also Leighton International Ltd v Hodge [2011] NSWSC 1381 at [98] per Bergin CJ in Eq. 155. UCPR 2005 (NSW) r 6.44(1),(2). 156. (2011) 279 ALR 737 at 739, at [6] per Spigelman CJ. 157. [2012] NSWCA 382. 158. Dust Diseases Tribunal Act 1989 (NSW) s 32. 159. [2012] NSWCA 382 at [84], [88] per Hoeben JA. 160. (2005) 148 FCR 126 at 131; 226 ALR 767 at 771, at [18]. 161. (2008) 250 ALR 682. 162. See note 160.

163. [2006] VSC 370 at [36]. 164. Puttick v Fletcher Challenge Forests Ltd (2007) 18 VR 70 at 84, at [42]. 165. Puttick v Tenon Ltd (2008) 238 CLR 265 at 280–1; 250 ALR 582 at 589, at [25] per French CJ, Gummow, Hayne and Kiefel JJ. 166. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 570; 97 ALR 124 at 145 per Mason CJ, Deane, Dawson and Gaudron JJ. See also Fleming v Marshall (2011) 279 ALR 737, where the issue of professional conduct standards applicable to New York attorneys was raised in argument but played no part in the court’s final decision. 167. (2005) 68 NSWLR 109. 168. See note 167 at 122, at [55]. See also PCH Offshore Pty Ltd v Dunn (No 2) (2010) 273 ALR 167 at 187, at [139]–[141] per Siopis J. 169. Henry v Henry (1996) 185 CLR 571; 135 ALR 564; CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; 146 ALR 402. 170. (1996) 185 CLR 571 at 590; 135 ALR 564 at 579 per Dawson, Gaudron, McHugh and Gummow JJ. 171. See, for example, Whung v Whung (2011) 45 Fam LR 269. See also Imagination Entertainment Ltd v Hetherington [2011] SASC 41, denying the defendant’s application for a stay because the defendant had previously successfully sought a stay of proceedings in California on the ground that the appropriate forum to hear the dispute was Australia. 172. (1996) 185 CLR 571 at 590; 135 ALR 564 at 579 per Dawson, Gaudron, McHugh and Gummow JJ. 173. See note 172. 174. (1997) 189 CLR 345 at 395; 146 ALR 402 at 435. 175. See above note 172. See, for example, Navarro v Jurado (2010) 44 Fam LR 310; Taffa v Taffa [2012] FamCA 181; Yeo v Huy (No 2) [2012] FamCA 541. See also Australian Commercial Research and Development Ltd v ANZ McCaughan Merchant Bank [1989] 3 All ER 65 at 69 per Browne-Wilkinson V-C. 176. For example, In the Marriage of Khademollah (2000) 26 Fam LR 686 (FC); Whung v Whung (2011) 45 Fam LR 269. 177. CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 395; 146 ALR 402 at 435–6 per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ. See, for example, PCH Offshore Pty Ltd v Dunn (No 2) (2010) 273 ALR 167; Kim Michael Productions Pty Ltd v Tropical Islands Management Ltd [201] NSWSC 269. But compare Atlasnavios Navegaçao v Ship Xin Tai Hai (No 2) [2012] FCA 1497 (no stay of Australian proceedings because plaintiff claimed in Chinese limitation of liability proceedings to avoid being time-barred). 178. CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 393; 146 ALR 402 at 434 per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ, quoting with approval Bank of Tokyo Ltd v Karoon [1987] AC 45 at 60 per Robert Goff LJ. 179. Morgan v Higginson (1897) 13 WN (NSW) 146. 180. Hollander v McQuade (1896) 12 WN (NSW) 154. 181. Conagra International Fertiliser Co v Lief Investments Pty Ltd (1997) 141 FLR 124. 182. CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 395; 146 ALR 402 at 435–6 per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ. See, for example, Whung v Whung (2011) 45 Fam LR 269. 183. See, for example, Henry v Henry (1996) 185 CLR 571; 135 ALR 564; Ferrier-Watson v McElrath (2000) 26 Fam LR 169; Re Point of Pay Pty Ltd [2012] VSC 380.

184. (1997) 189 CLR 345 at 401; 146 ALR 402 at 440. 185. See, for example, James N Kirby Pty Ltd v International Cargo Control Pty Ltd [2000] NSWSC 289; Raveh v Official Receiver of the State of Israel [2002] WASCA 27. 186. CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 402; 146 ALR 402 at 441–2 per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ. See, for example, Re Point of Pay Pty Ltd [2012] VSC 380. 187. (2008) 172 FCR 433; 252 ALR 1. 188. Because the stay sought was a temporary one pending determination of the Illinois proceedings (see TS Production LLC v Drew Pictures Pty Ltd [2008] FCA 1110 at [3] per Sundberg J), the Federal Court should have applied the criteria set out by Lockhart J in Sterling Pharmaceuticals Pty Ltd v Boots & Co (Aust) Pty Ltd (1992) 34 FCR 287 at 294: see 8.53 below. Instead, it wrongly applied the Voth test, which would have been relevant to an application for a permanent stay. The court’s error was later pointed out by a member of the Full Court, Finkelstein J, when sitting alone in Bella Products Pty Ltd v Creative Designs International Ltd (2009) 258 ALR 538 at 542–3, at [21]. 189. (2008) 250 ALR 97 at 116, at [78]. 190. (2008) 172 FCR 433 at 446; 252 ALR 1 at [48] per Gordon J (with whom Stone J agreed). 191. See note 190 at FCR 440, ALR at [21] per Finkelstein J. 192. (2011) 45 Fam LR 269 at 296, at [137] per O’Reilly J. 193. [2012] FamCA 541. 194. Whung v Whung (2011) 45 Fam LR 269 at 296, at [137] per O’Reilly J. 195. See the discussion at 6.19–6.20 above. 196. (1992) 34 FCR 287 at 294 per Lockhart J. 197. (1996) 185 CLR 571 at 590 n 64; 135 ALR 564 at 578–9 note 46 per Dawson, Gaudron, McHugh and Gummow JJ. 198. See, for example, DA Technology Australia Pty Ltd v Discreet Logic Inc (FCA, Gummow J, 10/3/1994, BC9405780, unreported); Commonwealth Bank v White (No 3) [2000] VSC 259; Howard v National Bank of New Zealand Ltd [2003] FCA 41; Reinsurance Australia Corp Ltd v HIH Casualty and General Insurance Ltd (2003) 254 ALR 29 at 69, at [356]–[358] per Jacobson J; Bella Products Pty Ltd v Creative Designs International Ltd (2009) 258 ALR 538 at 543, at [22] per Finkelstein J; McConnell Dowell Constructors (Aust) Pty Ltd v Ship Asian Atlas [2011] FCA 174; Oswal v Burrup Fertilisers Pty Ltd (recs and mgrs apptd) [2011] FCA 424, affirmed at (2011) 85 ACSR 531 at 537, at [29] per Mansfield and Foster JJ. Compare Re Point of Pay Pty Ltd [2012] VSC 380, (incorrectly) applying Voth principles to an application for a temporary stay. In Telesto Investments Ltd v UBS AG (2012) 262 FLR 119, Ward J applied Voth principles in considering an application for a permanent stay, but ordered a temporary stay. 199. L & W Developments Pty Ltd v Della [2003] NSWCA 140; Century Yuasa Batteries Pty Ltd v Turek [2004] QSC 271; Pilbara Iron Ore Pty Ltd v Ammon [2008] WASCA 202. 200. Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460 at 478 per Lord Goff of Chieveley. 201. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565; 97 ALR 124 at 141 per Mason CJ, Deane, Dawson and Gaudron JJ. See also Henry v Henry (1996) 185 CLR 571 at 587; 135 ALR 564 at 576 per Dawson, Gaudron, McHugh and Gummow JJ. See, for example, Pocock v Universal City Studios LLC [2012] NSWSC 1481 (relevant witnesses in Australia and foreign jurisdiction, California). 202. See, for example, Moldauer v Constellation Brands Inc [2013] SASC 38; PCH Offshore Pty Ltd v Dunn (No 2) (2010) 273 ALR 167. Compare Atlasnavios Navegaçao v Ship Xin Tai Hai (No 2) [2012] FCA 1497 (witnesses not likely to be present in either local or foreign jurisdiction).

203. See, for example, Mineral Commodities Ltd v Promet Engineers (Africa) Pty Ltd [2008] FCA 30 at [19], [24] per Siopis J. 204. See 11.24–11.26 below. 205. Evidence Act 1995 (Cth) s 48 (applies to Australian Capital Territory courts by s 4(1) but see also Evidence Act 2011 (ACT) s 48); Evidence Act 1995 (NSW) s 48; Evidence (National Uniform Legislation) Act (NT) s 48; Evidence Act 1929 (SA) s 45C(3)(b); Evidence Act 2001 (Tas) s 48; Evidence Act 2008 (Vic) s 48; Evidence Act 1906 (WA) s 73A(3)(b). In Queensland, a document produced by a computer is admissible to prove a fact if direct oral evidence of that fact would be admissible: Evidence Act 1977 (Qld) s 95. Electronic records are ‘documents’ as that term is defined in the Dictionary to the Evidence Act 1995 (Cth): see Sony Music Entertainment (Aust) Ltd v University of Tasmania (No 1) (2003) 129 FCR 472; 198 ALR 367. 206. Evidence Act 1995 (Cth) s 49; Evidence Act 2011 (ACT) s 49; Evidence Act 1995 (NSW) s 49; Evidence (National Uniform Legislation) Act (NT) s 49; Evidence Act 2001 (Tas) s 49; Evidence Act 2008 (Vic) s 49. There is no equivalent provision in Queensland, South Australia or Western Australia. 207. See, for example, Zhang v Regie Nationale des Usines Renault SA [2000] NSWCA 188 at [44] per Stein JA (with whom Beazley and Giles JJA agreed) (reversed on other grounds, (2002) 210 CLR 491; 187 ALR 1); Puttick v Fletcher Challenge Forests Ltd (2007) 18 VR 70 at 93, at [87] per Maxwell P (dissenting) (majority decision reversed on other grounds, Puttick v Tenon Ltd (2008) 238 CLR 265; 250 ALR 482); Sigma Coachair Group Pty Ltd v Bock Australia Pty Ltd [2009] NSWSC 684 at [144] per Hall J; O’Reilly v Western Sussex Hospitals NHS Trust [2010] NSWSC 909 at [40] per Studdert AJ; Pocock v Universal City Studios [2012] NSWSC 1481 at [26] per RA Hulme J. Compare Moldauer v Constellation Brands Inc [2013] SASC 38 at [19] per Kourakis CJ (difficulties in getting evidence from witnesses in California ‘not much ameliorated by audio visual technology’). 208. PCH Offshore Pty Ltd v Dunn (No 2) (2010) 273 ALR 167 at 186, at [135] per Siopis J. 209. See Chapter 11 below. 210. (2005) 68 NSWLR 109. 211. Competition and Consumer Act 2010 (Cth) Sch 2, s 18. 212. [1989] 3 All ER 65 at 72. 213. (2003) 254 ALR 29. 214. At the time of the Australian decision under consideration, the proposition in the text had been established by the Court of Appeal in HIH Casualty and General Insurance Ltd v Chase Manhattan Bank [2001] 2 Lloyd’s Rep 483. The House of Lords later affirmed the Court of Appeal’s decision: HIH Casualty and General Insurance Ltd v Chase Manhattan Bank [2003] 2 Lloyd’s Rep 61. 215. Chase Manhattan Bank v New Hampshire Insurance Co, 749 NYS 2d 632 (NY Sup 2002). 216. See, for example, Leda Holding Pty Ltd v Oraka Pty Ltd [1998] ANZ Conv R 582; (1998) ATPR ¶41601. 217. An application for a temporary stay pending determination of proceedings elsewhere is not governed by Voth principles: see above note 196. 218. (2003) 254 ALR 29 at 59–60, at [288], [291] per Jacobson J. 219. See note 218 at 63, at [321], [323]. Jacobson J quoted the passage from Browne-Wilkinson V-C’s judgment in Australian Commercial Research, quoted above: see note 212. 220. See note 218 at 51–2, at [215]–[218]. 221. See note 218 at 64, at [326]. 222. Green v Australian Industrial Investment Ltd (1989) 25 FCR 532 at 545; 90 ALR 500 at 513 per

French J; CE Heath Underwriting & Insurance (Australia) Pty Ltd v Barden (SC (NSW), Rolfe J, 19/10/94, BC9403144, unreported); Eurogold Ltd v Oxus Holdings (Malta) Ltd [2007] FCA 811; Faxtech Pty Ltd (t/as Point Trading) v ITL Optronics Ltd [2011] FCA 1320 (Australian Consumer Law). See also Mineral Commodities Ltd v Promet Engineers (Africa) Pty Ltd [2008] FCA 30, allowing service outside Australia of Federal Court proceedings because the absence of an equivalent to the Trade Practices Act 1974 (Cth) s 52 in South Africa meant that the Federal Court was not a ‘clearly inappropriate forum’; Telesto Investments Ltd v UBS AG [2013] NSWSC 503 at [243]–[247] per Sackar J, concluding that the plaintiff’s desire for the ‘significant juridical advantage’ of a claim under the Trade Practices Act 1974 (Cth) s 52 meant that it was not unreasonable for the plaintiff not to have participated in related proceedings in Singapore in the context of considering whether an Anshun estoppel arose: see 40.56. 223. R Garnett, ‘Stay of Proceedings in Australia: a “Clearly Inappropriate” Test?’ (1999) 23 Melb UL Rev 30 at 46–8. 224. See, for example, Laminex (Australia) Pty Ltd v Coe Manufacturing Co [1999] NSWCA 370. 225. (2008) 248 ALR 573. 226. Huddart Parker Ltd v The Ship Mill Hill (1950) 81 CLR 502; Nicola v Ideal Image Development Corp Inc (2009) 261 ALR 1 at 16, at [63]–[64] per Perram J; Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) (2010) 79 ACSR 383 at 401–3, at [82]–[89] per Spigelman CJ. Compare Bogart Lingerie Ltd v Steadmark Pty Ltd [2013] VSC 212 (defendant waived right to rely on exclusive jurisdiction clause by making a counterclaim in Australian proceedings). 227. See, for example, Barach v University of New South Wales [2011] NSWSC 431 (hardship to defendant in litigating in Australia; hardship to plaintiff and another defendant to litigate in USA; stay not granted); Hugh v Skinner [2012] FamCA 145 (hardship to defendant a factor in granting stay); Suzlon Energy Ltd v Bangad (No 5) [2012] FCA 1505 (no stay of Australian proceedings despite difficulty for defendant, who was on bail in India). 228. McGregor v Potts (2005) 68 NSWLR 109; Fleming v Marshall (2011) 279 ALR 737 at 756, at [92]– [95] per Macfarlan JA (with whom Spigelman CJ and Sackville AJA agreed); Mallon & Co Lawyers Pty Ltd v Gam [2012] WASC 376. 229. Kemeny v Kemeny (1998) 23 Fam LR 105; Pagliotti v Hartner (2009) 223 FLR 121; 41 Fam LR 41; Rogers v Rogers (2010) 44 Fam LR 235 at 245, at [77] per Johnston J; Piatek v Piatek (2010) 245 FLR 137 at 164, at [130] per Douglas J; Hugh v Skinner [2012] FamCA 145 at [49] per Cleary J. 230. Pagliotti v Hartner (2009) 223 FLR 121; 41 Fam LR 41 (real property in Australia); Piatek v Piatek (2010) 245 FLR 137 (real property in Australia); Taffa v Taffa [2012] FamCA 181 (real property in Lebanon).

[page 218]

Chapter 9

Restraint of Foreign Proceedings: Anti-Suit Injunctions1 Introduction 9.1 Chapters 7 and 8 have set out the applicable principles by reference to which an Australian court may stay regularly commenced proceedings by reference to (a) the existence of a legal right such as an exclusive jurisdiction clause in favour of a foreign court or an arbitration agreement; (b) the inappropriateness of the local forum; and (c) the pendency of concurrent proceedings. From time to time, defendants to Australian proceedings have secured a functionally equivalent result to a stay of such proceedings by obtaining from a foreign court an anti-suit injunction restraining the plaintiff in Australian proceedings from the ongoing pursuit of those proceedings including, most dramatically, proceedings which the applicant for the anti-suit relief had unsuccessfully sought to stay in Australia.2 Australian courts, too, have made such orders restraining plaintiffs in foreign forums from continuing those proceedings3 and indeed, in certain cases, from even commencing foreign [page 219] proceedings.4 This chapter examines the circumstances in which Australian courts grant anti-suit injunctions in relation to foreign proceedings. 9.2 The anti-suit injunction is a remedy which is unknown in civilian systems. This is to be explained by reference to its historical roots in English Chancery practice and, in particular, in the pre-Judicature Act creature—the ‘common injunction’ — which courts of Chancery could issue to restrain a party from

commencing or continuing a suit in the common law courts, where to do so would be contrary to conscience. Such injunctions were not directed to the common law courts per se, as was the prerogative writ of prohibition, for example, but rather were in the form of an order, operating in personam on the conscience of the party proceeding or proposing to proceed at common law, directing it to desist therefrom.5 It was the in personam nature of the jurisdiction that allowed a variant of the common injunction to be employed to restrain parties or prospective parties to foreign proceedings from continuing or commencing litigation abroad. One writer has described this as the ‘personal logic’ of the anti-suit injunction.6 It was axiomatic, therefore, that this jurisdiction was founded:7 … not on any arrogant assumption of power in our courts over foreign tribunals, but upon an undoubted control over the subjects of the realm, as a personal right to restrain them from committing injustice by prosecuting inequitable claims.

9.3 The modern anti-suit injunction is not, however, confined to ‘subjects of the realm’. Rather, its reach will extend to all of those litigants who are amenable to the jurisdiction of the court in which such relief is sought; that is to say, those who are either present or served within the jurisdiction, or those over whom the relevant court has (extended) jurisdiction to serve abroad by reference to the relevant rules of court.8 The jurisdiction of the English High Court of Justice in Akai Pty Limited v People’s Insurance Company,9 for example, derived not from the fact that the party restrained (Akai Pty Limited) was an English company (it was not) or carried on business and was sued with process in the United Kingdom (it was not), but rather from the fact that the policy of insurance on which it sued contained a contractual submission to English jurisdiction. 9.4 The robust view that anti-suit injunctions do not work an interference with foreign courts by reason of their in personam operation is not one that has been universally shared within common law jurisdictions,10 and has been the subject of [page 220] sharp criticism in some civilian jurisdictions.11 It is for this reason that, in addition to general discretionary considerations affecting the grant of equitable injunctive relief, common law courts have adverted to the need to have regard to considerations of international judicial comity when called upon to grant anti-

suit relief. However, the extent and degree to which this consideration is relevant is somewhat indeterminate in circumstances where a case for injunctive relief is otherwise made out. In Australia, where an injunction is sought in the traditional equitable jurisdiction, comity is given effect to in part by the requirement, enunciated by the High Court in CSR Ltd v Cigna Insurance Australia Ltd,12 that the Australian court first satisfy itself that it is not a clearly inappropriate forum before considering the grant of such relief. 9.5 Notwithstanding its origins in pre-Judicature Act England, it is only in the last two decades that the use of anti-suit injunctions as a potentially potent weapon in transnational litigation has exploded, particularly in England, but also in Australia. The potency of this remedy exists notwithstanding that it is often granted only on an interlocutory basis. In practical terms, however, as was recognised in CSR Ltd v Cigna Insurance Australia Ltd13 and Australian Broadcasting Corporation v Lenah Game Meats Pty Limited,14 such interlocutory relief will frequently be final in effect with the consequence that the court will scrutinise the basis of the claim more fully than would otherwise be the case on a standard application for interlocutory relief.15 9.6 Unlike a so-called ‘Mareva’ injunction, whose true juristic nature has been severed, in Australia at least, from the equitable foundations of the injunction,16 anti-suit injunctions may be seen as a genus of the species of injunction granted both in equity’s exclusive and auxiliary jurisdictions.17 A number of matters flow from that fact including at least the following. Anti-suit injunctions: may be granted on an interim or final basis; may be granted on a quia timet basis; [page 221] while typically prohibitive, may be in part mandatory;18 may be sought on an ex parte basis with the attendant solemn obligation of full disclosure of all material facts; may not be granted in circumstances where damages otherwise supply an adequate remedy for an infringement of the relevant legal right; are granted in the exercise of the court’s discretion and any claimed entitlement to such relief is subject to standard equitable defences such as

laches and the doctrine of unclean hands; and depend for their potency upon, and, as such, may be ‘enforced’ through, the sanction of contempt of court. 9.7 There are a number of reasons why a defendant to foreign proceedings may wish to restrain its opponent in those foreign proceedings by way of an anti-suit injunction obtained from a local forum, rather than seeking the more conventional remedy of a stay of the foreign proceedings. Seeking a stay may count as submission to the proceedings in the foreign jurisdiction with the consequence that any judgment ultimately given may be enforceable in another jurisdiction. The risk of this approach will be especially great where any substantive defence and/or cross-claim is required to be filed at the time of a jurisdictional challenge. Second, the foreign court may lack the ability or the will to grant a stay of proceedings on discretionary grounds. Third, even where the foreign court may grant a stay of proceedings on forum non conveniens grounds (or a variation thereon), a party may be sceptical as to its prospects of obtaining such relief, particularly where the plaintiff in the foreign proceedings is a citizen or resident of that forum, especially perhaps one that has sustained physical injuries. Fourth, a defendant may be reluctant to incur the expense and inconvenience of challenging foreign proceedings if a cheaper method of doing so is available, including one which offers the prospect of the recovery of costs in contested proceedings for anti-suit relief, which costs may not be recoverable in the foreign jurisdiction (such as in many states of the United States) even if a stay is obtained. Fifth, issues of timing may in certain circumstances dictate moving swiftly and a response may be able to be made more swiftly by commencing suit in a forum with which the foreign defendant is most familiar or comfortable.

General Principles 9.8 In Société Nationale Industrielle Aerospatiale v Lee Kui Jak,19 a decision of the Privy Council on appeal from Brunei, Lord Goff identified ‘certain basic principles’ from the long history of the equitable jurisdiction to restrain foreign proceedings. In short form these basic principles are that, in addition to establishing jurisdiction over the defendant, the court’s jurisdiction is to be exercised when the interests of justice so demand; the order granting injunctive relief is directed to the plaintiff

[page 222] in the foreign proceedings and not to the foreign tribunal; but, notwithstanding the in personam operation of this jurisdiction, caution is required in its exercise by reason of its implicit interference with the foreign tribunal.20These principles, which have been endorsed by the House of Lords on three subsequent occasions,21 are commonly accepted as non-controversial throughout the Commonwealth.22 9.9 It is of fundamental importance to note that since Australian courts are, generally speaking, reluctant to interfere with the jurisdiction of other courts, the principles upon which an order restraining foreign proceedings will be made are different from those applied in dismissing or staying a local action.23 An injunction will not be granted merely because the forum in which the injunction is sought is more appropriate or considers itself to be the natural forum.24 9.10 In CSR Ltd v Cigna Insurance Australia Ltd,25 Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ said that the power to issue anti-suit injunctions derives in part from the court’s inherent power to protect the integrity of its processes once set in motion. That power is the counterpart of its power to grant stays to prevent its processes from being abused. The power is not to be restricted to defined and closed categories, but is to be exercised when the administration of justice so demands or when necessary for the protection of the court’s own proceedings or processes.26 9.11 The majority in CSR Ltd v Cigna also made reference to the courts’ traditional equitable jurisdiction to restrain unconscionable conduct or the unconscientious exercise of a legal right as a further basis or foundation for the jurisdiction. Their Honours observed that this power, too, is not to be restricted to closed categories or to examples drawn from the decided cases.27 Rather, it is a power the limits of which are determined by the dictates of equity and good conscience.28 Within this traditional jurisdictional foundation a further distinction is capable of being drawn, namely between injunctions granted in aid of legal rights such as may be conferred by a contract not to sue or an exclusive foreign jurisdiction clause which the court equated with a promise not to sue in a foreign jurisdiction,29 and injunctions granted in the exercise of equitable jurisdiction if there are proceedings in another court, including in a foreign court, which are, according to the principles of equity, vexatious or oppressive.30 9.12 An anti-suit injunction may be founded on a dual basis, namely a view that

it is not only necessary to protect the jurisdiction of the issuing court and to protect [page 223] its processes once set in motion, but also that, in the particular circumstances of the case, the foreign proceedings are vexatious and oppressive. The anti-suit injunction granted by Lindgren J in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 3)31 may be viewed as an example of this. His Honour held that the foreign proceedings in that case were not only objectively (and, inferentially, subjectively) vexatious and oppressive to the respondents, but also that they would work a major interference with longpending Federal Court proceedings on the verge of going to trial. 9.13 In what follows, the various bases upon which anti-suit injunctions are granted by Australian courts are discussed, with examples taken from the decided cases. Before turning to those categories, however, it should be noted that the foreign proceedings sought to be restrained need not necessarily be for substantive relief. Thus, in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd,32 for example, what may be termed an ‘antideposition injunction’ was granted. It restrained a party in proceedings pending in the Federal Court of Australia from invoking provisions of the United States Federal Rules of Civil Procedure in order to conduct oral depositions of witnesses of a cross-respondent in the Australian Federal Court proceedings, who would be able to be cross-examined in due course when the trial commenced. The foreign deposition procedure was characterised, in the circumstances of that case, as amounting to an interference with the Australian proceedings.33 Earlier, in Sentry Corporation v Peat Marwick Mitchell & Co,34 the Full Court of the Federal Court of Australia upheld a decision to grant an injunction to restrain an apprehended contempt of proceedings in the Federal Court. The apprehended contempt lay in the taking of oral depositions in Sydney pursuant to the order of the Wisconsin Circuit Court in related proceedings involving parent companies or companies associated with the parties to the Australian proceedings. Critically, the persons sought to be examined on oath were involved in the preparation of the case in the Federal Court, and the complaint brought in the Wisconsin proceedings depended on the outcome of the Australian proceedings.35 Armstrong v Armstrong36 provides an early English illustration of a similar fact situation. In that case, divorce proceedings had been

instituted in England. The husband, whose order for a commission to examine witnesses in Vienna had been suspended, applied to the Viennese courts under provisions of the Austrian Code to summon witnesses before it and examine them on oath. It was conceded that any evidence taken pursuant to the provisions of the Austrian Code would be inadmissible in the English proceedings so that the Viennese proceedings yielded no advantage to the husband. Whatever other advantage he stood to gain was considered to be illegitimate, not on the basis that it was vexatious and oppressive to the defendant, but because it would represent an ‘interference with the proper course of the administration of [page 224] justice in this Court’.37 A more recent example of an anti-deposition injunction is Pathway Investments Pty Ltd v National Australia Bank Ltd (No 2).38 There, plaintiffs in a class action which was to proceed on viva voce evidence were restrained from pursuing oral depositions in New York both from employees of the defendants and third party advisers in circumstances where the depositions were scheduled to take place after the commencement of the trial in Victoria and evidence was led and accepted that the depositions would occasion a significant diversion of resources from the defendant. The injunction was justified on the basis that the New York depositions, in the circumstances of the particular case, would both interfere with the process of the Victorian proceedings and would be oppressive to the defendants.

Injunctions to Protect the Jurisdiction of the Court and the Court’s Processes Once Set in Motion 9.14 In CSR Ltd v Cigna Insurance Australia Ltd,39 the majority gave the following examples of anti-suit injunctions granted the exercise of the court’s inherent power: A court may grant an injunction to restrain a person from commencing or continuing foreign proceedings if the foreign proceedings interfere with or have a tendency to interfere with proceedings pending in that court.

If an estate is being administered or a petition in bankruptcy has been presented or winding up proceedings have been commenced, an injunction may be granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets.40 9.15 At least six Australian cases can be cited as illustrating the first of the examples given by the High Court involving retention of control over local proceedings. In National Mutual Holdings Pty Ltd v Sentry Corporation,41 a party to litigation before the Federal Court of Australia commenced proceedings in New York seeking to enjoin its former solicitors from acting for an opposing party in the Australian proceedings. In granting an injunction, Gummow J described the New York proceedings as ‘a procedure apt to bring about a situation whereby that other party changes its solicitor, a step of primary and paramount concern to this court’.42 In Re Siromath Pty Ltd (No 3),43 McLelland J of the Supreme Court of New South Wales restrained proceedings which had been commenced in Pennsylvania against the liquidator and the provisional liquidator of a New South Wales company which [page 225] was in the process of being wound up. He spoke of the need to protect officers of the court in the discharge of their official duties and described the Pennsylvanian proceedings, brought by a trade creditor of the company, as ‘intimidatory and oppressive’.44 Both CSR Ltd v NZ Insurance Co Ltd45 and Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd,46 proceedings in the Supreme Court of New South Wales and the Federal Court of Australia respectively, were at an advanced stage of preparation, having been the subject of intensive case management and allocation of court time, when foreign proceedings were commenced which threatened not only hearing dates but also to undermine careful case management by the courts of the proceedings to date. In this context, these two cases bear a very close affinity with the decision of the English Court of Appeal to uphold a decision to restrain proceedings that had been commenced in the United States in Glencore International AG v Exter Shipping Ltd.47 The final example of an Australian court granting interim antisuit injunctive relief to protect the integrity of its processes set in motion by the invocation of its admiralty jurisdiction is the decision in Atlasnavios Navegacao, Lda v Ship ‘Xin Tai Hai’.48 In this case, a vessel had been arrested and a letter of

undertaking filed to secure its release. The arrest had been challenged and a stay of the Australian proceedings had been sought. At the same time, the ship owner had sought from Qingdao Maritime Court an order for delivery up of the letter of undertaking. It was this application that was the subject of the anti-suit injunction as, if granted, it would destroy the efficacy of the letter of undertaking which had operated as a substitute for the court’s custody of the arrested vessel which was the foundation of its in rem jurisdiction. 9.16 A case illustrating the second of the examples given by the High Court is Weinstock v Sarnat.49 In this case an injunction was granted restraining a party from pursuing proceedings in Israel in circumstances where those proceedings had the tendency to interfere and/or overlap with the orderly administration of an estate which was being administered in and under the supervision of the Supreme Court of New South Wales. White J held that: If the Israeli proceedings were allowed to be pursued, they would have the tendency of embarrassing the proper administration of the estate. If the defendant’s claim that the moneys belonged to the deceased before he declared a trust of them in her favour is correct, the estate is likely to have liabilities to pay tax, interest and penalties in Australia. It is necessary to resolve the beneficial ownership of the moneys before the estate can be distributed. It may also be necessary to resolve that question for the purposes of the proceedings under the Family Provision Act.

9.17 This decision is in the tradition of a long line of cases in which anti-suit relief is granted to guard against the evasion of important public policies of the forum. Whereas, as shall be seen in the case of vexatious or oppressive conduct, proceedings are restrained because no legitimate or just advantage can be said to lie for a plaintiff [page 226] in proceeding in a particular foreign forum, it is the very existence of an advantage outside the forum which may justify injunctive relief in cases where a plaintiff is considered to be evading the forum’s important public policies.50The classic instance of such a case is where a creditor of a bankrupt estate or company in liquidation seeks to move against assets outside the jurisdiction and thus secure an advantage over other creditors whose claims will be met according to a legislatively prescribed order of priorities and in accordance with the principle of pari passu distribution. Similar injunctive relief has been held to be appropriate in cases concerned with the administration of the assets of a deceased estate.51

Under the heading of injunctions designed to protect the processes of the court once set in motion come what are sometimes described as anti-anti-suit injunctions. These are injunctions which order a party not to seek anti-suit injunctive relief in another forum in relation to proceedings in the issuing forum. They are typically sought when it is apprehended that a defendant to local proceedings may approach a foreign court to which the plaintiff in the local proceedings is also amenable and ask that court to restrain that party from continuing its local proceedings. Such an order was sought and made ex parte in Qantas Airways Ltd v Rolls Royce plc.52 A similar order was upheld by the Guernsey Court of Appeal in Carlyle Capital Corporation Ltd v Conway.53 Both cases are significant as the anti-anti-suit injunctions were granted notwithstanding that the proceedings had been commenced in other than the forum nominated as having exclusive jurisdiction in the parties’ contractual arrangements. In both cases, the moving parties sought to take advantage of what they contended to be mandatory laws of the forum that would not necessarily be applied or given effect to in the event that litigation proceeded in the contractually nominated forum. 9.18 Such an order will be an anti-anti-anti-suit injunction where the local proceedings sought to be protected by the remedy are themselves for anti-suit relief. As such, an anti-anti-anti-suit injunction is an injunction which may be sought in circumstances where a party considers it has a good case for restraining foreign proceedings on the grounds of vexation or oppression, but is also conscious of the possibility that, if the moving party in the foreign forum has notice of the proposed application to restrain its proceedings, it may itself seek to protect its (vexatious) strategy by seeking anti-anti-suit relief from its own forum. In Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd,54 Lindgren J granted an anti-anti-anti-suit injunction to secure one party’s ‘right’ to seek to have United States proceedings restrained on the ground that they were vexatious and oppressive, relief that was ultimately granted55 but which may have been foreclosed or pre-empted had not the anti-anti-anti-suit injunction been obtained. On the application for the relief, Lindgren J was referred to the decision in Bank of New York v Bank of America56 in which, at a time when there was before an Australian [page 227] court an application for an anti-suit injunction, the New York judge made an

order restraining any further proceedings on that application. It is of the nature of an anti-anti-anti-suit injunction that it will need to be sought in the first instance on an ex parte basis.

Injunctions Granted in Aid of a Legal Right 9.19 It is trite that an injunction will lie in equity to restrain a breach of contract in circumstances where damages are an inadequate remedy and there are no discretionary reasons tending against the grant of equitable relief. The cases disclose three categories of contractually conferred legal rights which parties have sought to protect by means of an injunction to prevent the breach of a stipulation not to commence foreign proceedings. These are: rights created by exclusive jurisdiction or choice of court clauses;57 agreements to submit any disputes arising under a contract to arbitration;58 and agreements not to sue at all, whether these be in deeds of settlement and release in which parties give up any existing rights to litigate,59 in agreements to be bound by the results of particular litigation,60 or else in other commercial agreements.61 As between the first two categories, there has been said to be no difference in principle.62 In addition, a contractual duty of confidence may warrant the grant of an injunction restraining a party owing the duty from complying with a subpoena issued in foreign proceedings.63 9.20 Where an injunction is granted to restrain a breach of a legal right such as that conferred by an exclusive jurisdiction clause, questions may (and frequently do) arise as to the true nature of the clause; namely whether or not it is exclusive. Commencement of foreign proceedings notwithstanding a party’s prior agreement that an Australian court shall have non-exclusive jurisdiction will not constitute a breach of that agreement and, hence, will not found the grant of an anti-suit injunction. Other adjectival but potentially critical questions which may arise include whether or not the foreign proceedings fall within the scope of the exclusive jurisdiction clause; whether or not the benefit of the clause has been lost as a [page 228] result of contractual variation or waiver; and, in some cases, whether the exclusive jurisdiction clause in fact forms part of the parties’ contract where, for

example, it is only referred to indirectly and the doctrine of incorporation is relied upon. Identical issues potentially arise with regard to arbitration clauses and in the context of applications to stay local proceedings by reference to exclusive jurisdiction or arbitration clauses. In this context, reference is made to the fuller discussion of these matters in Chapter 7. 9.21 Prior to the important decision of the English Court of Appeal in The Angelic Grace,64 some diffidence had been displayed by common law courts towards the grant of an anti-suit injunction to enforce an exclusive jurisdiction agreement on the basis already referred to; namely that an order restraining a party from proceeding in the courts of a foreign jurisdiction, although directed in form to the moving party in the foreign court, had the effect in substance of interfering with and indeed stymieing proceedings in that foreign court. Courts often fell back on the argument that, as the remedy of anti-suit injunction was discretionary, it was preferable if the party whose agreement had been breached sought a stay of the foreign proceedings in that jurisdiction to vindicate its legal right to insist upon arbitration, rather than seeking to do so indirectly, and from afar, as it were. However, such sensitivity towards the concerns of international judicial comity, at least where an anti-suit injunction was sought to restrain a breach of an arbitration or exclusive jurisdiction clause, was swept away, in The Angelic Grace where Millett LJ (as he then was) said:65 In my judgment, the time has come to lay aside the ritual incantation that this is a jurisdiction which should only be exercised sparingly and with great caution. There have been many statements of great authority warning of the danger of giving an appearance of undue interference with the proceedings of a foreign Court. Such sensitivity to the feelings of a foreign Court has much to commend it where the injunction is sought on the ground of forum non conveniens or on the general ground that the foreign proceedings are vexatious or oppressive but where no breach of contract is involved. In the former case, great care may be needed to avoid casting doubt on the fairness or adequacy of the procedures of the foreign Court. In the latter case, the question whether proceedings are vexatious or oppressive is primarily a matter for the Court before which they are pending. But in my judgment there is no good reason for diffidence in granting an injunction to restrain foreign proceedings on the clear and simple ground that the defendant has promised not to bring them … In my judgment, where an injunction is sought to restrain a party from proceeding in a foreign Court in breach of an arbitration agreement governed by English law, the English Court need feel no diffidence in granting the injunction, provided that it is sought promptly and before the foreign proceedings are too far advanced.

9.22 An interesting question is whether or not a choice of law (as opposed to exclusive jurisdiction) clause can be breached and itself provide the basis for the grant of an anti-suit injunction. In Ace Insurance Ltd v Moose Enterprises Pty Ltd,66 it was contended that an anti-suit injunction would lie in equity’s auxiliary jurisdiction in circumstances where a contract of insurance contained an

Australian choice-of-law [page 229] clause and one party commenced an action in a jurisdiction (California) in which (it was asserted by that party) the courts would not give effect to the Australian choice-of-law clause. One basis upon which the application for injunctive relief was put was that the choice-of-law clause amounted to an implied negative stipulation not to invoke the law of any country other than that nominated in the choice-of-law clause. It was submitted that the commencement of proceedings in California amounted to a breach of that implied negative stipulation which, it was put, should be restrained by anti-suit injunction. Related arguments advanced on the basis that the choice-of-law clause was promissory in its effect were that: the institution of the Californian proceedings, in an attempt to invoke Californian municipal law, was in breach of the contractual term implied by law that a party would not do anything to deprive the other party of the benefit of or the efficacy of the contractual bargain in respect of the choice-of-law clause; and the institution of the Californian proceedings, in an attempt to invoke Californian municipal law, constituted an abuse of process liable to be restrained in equity. This was because, if the party invoking Californian municipal law succeeded in the proceedings through the application of that law, the counterparty would be entitled to recover equivalent damages for breach of the choice-of-law clause (whether in those proceedings or in subsequent local proceedings), thus giving rise to a circuity of action. 9.23 Whilst acknowledging that it would be possible for parties to frame a contractual provision which unambiguously contained a promise to do nothing that might result in some other system of law becoming applicable, the judge held that that was not ordinarily the effect of a choice-of-law clause which was usually ‘declaratory of the intention of the parties, rather than promissory’. He held that the choice-of-law clause in the instant case was not promissory in effect and, therefore, was incapable of founding the implied negative stipulation the alleged breach of which lay at the heart of the application for anti-suit relief.67 9.24 A further type of legal right which may form the basis for the grant of anti-

suit injunctive relief is one conferred by statute. One example might be a ‘right’ conferred by a particular jurisdiction’s statutory compensation scheme. If the plaintiff and defendant both reside in that jurisdiction, a plaintiff’s endeavour to take advantage of more generous damages available under the common law, for example, in another jurisdiction, might be legitimately restrained on the basis of the defendant’s ‘right’ only to provide compensation in accordance with the forum’s statutory scheme.68 9.25 Apart from cases of equitable defences such as delay, another circumstance in which an anti-suit injunction might not be granted notwithstanding the fact that the foreign proceedings have been commenced in breach of an exclusive jurisdiction clause or arbitration agreement is where the foreign proceedings involve third parties in addition to those parties to the jurisdiction or arbitration agreement and the [page 230] interests of justice, overall, recommend litigation in the foreign forum. The interests of justice are likely to so recommend in circumstances where, looking at the dispute globally rather than simply as solely between the parties to the relevant contractual arrangement, the foreign forum could be described as the natural forum. Donohue v Armco Inc69 was just such a case, as was Sokana Industries Inc v Freyre & Co Inc.70 In that case Coleman J declined on discretionary grounds to restrain proceedings in Florida brought in breach of a London arbitration clause in circumstances where Florida appeared to be the natural forum and where the impleading of a third party in those proceedings meant that an injunction would generate a multiplicity of suits.

Injunctions Granted to Restrain Vexatious or Oppressive Foreign Proceedings 9.26 As the High Court pointed out in CSR Ltd v Cigna Insurance Australia Ltd,71 an anti-suit injunction may also be granted in the exercise of equitable jurisdiction if there are proceedings in another court, including in a foreign court, which are, according to the principles of equity, vexatious or oppressive. Importantly, the court observed that this did not involve a determination that the

proceedings instituted in the foreign court are vexatious or oppressive in the sense of being an abuse of that court’s processes, or in the sense that they should be stayed by the foreign court on forum non conveniens grounds. It is thus vexation and oppression in the eyes of the court asked to grant the anti-suit injunction that is key. The court endorsed the observation of Robert Goff LJ (as he then was) in Bank of Tokyo Ltd v Karoon72 that foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in local proceedings.73 The court continued by observing that:74 On the other hand, they are vexatious or oppressive if there is a complete correspondence between the proceedings or, in terms used in Carron Iron Company, if ‘complete relief’ is available in the local proceedings.

This aspect of the court’s judgment is not free from difficulty and at least six points should be made. 9.27 First, the proposition for which Bank of Tokyo v Karoon is cited is surprisingly absolute in the context of the equitable jurisdiction. One can imagine cases where the nature of the remedy sought to be secured in the foreign proceedings, and ex hypothesi not available in the local proceedings, was of so extreme a nature and/or so tenuously connected in any territorial sense with conduct of the applicant for the [page 231] injunction that equity would regard intervention by way of injunction as warranted. Second, and related to the first proposition, there is a seeming tension between this absolute proposition and the court’s subsequent observation that because ‘the power to grant injunctions in respect of foreign proceedings which are vexatious or oppressive, in the sense described, derives from equity, it is not to be confined to the examples found in the decided cases. Rather, it is a power the limits of which are determined by the dictates of equity and good conscience’.75 Third, it would appear that the proposition is directed towards an advantage delivered by a substantive remedy as opposed to some mere procedural advantage available in the foreign forum; for example as to costs or the existence of a jury trial. Were it otherwise, it would be an extremely rare circumstance in which an anti-suit injunction would be granted, such are the differences in procedure between the courts of different countries. Fourth, the

availability of a remedy in a foreign jurisdiction not available in the local forum will largely be a function of the local forum’s choice-of-law rules, and how internationalist the local forum is in its approaches to characterisation of foreign causes of action. Thus, there is no reason in principle why a foreign statutory claim may not be entertained in Australia.76 In this context, the only reason why the critical concession in relation to the inability to litigate the Sherman Act claim in Australia77 was made in CSR v Cigna was because the then Australian choice-of-law rule for tort78 required double actionability and, in particular, required that the ‘foreign’ cause of action be actionable in Australia. It was not until Renault v Zhang79 was decided, some five years after CSR v Cigna, that the choice-of-law rule in tort was altered to provide for application of the law in the place of the wrong. In light of this development, the concession made in CSR v Cigna would not need to have been made. The rejection of the double actionability choice-of-law rule in tort will decrease the number of cases where the foreign forum will offer a remedy not able to be litigated in Australia. Fifth, the High Court’s judgment leaves it unclear as to whether or not, even though foreign proceedings may not be characterised as vexatious or oppressive such as where they offer a remedy not available in the Australian jurisdiction, their institution or continuance may still be unconscionable and warrant equity’s intervention. An example of such a circumstance may be where the institution of the foreign proceedings (albeit offering an apparent substantive advantage) was actuated by malice which was capable of being demonstrated and/or was instituted [page 232] for some demonstrable collateral purpose.80 Sixth, the ‘requirement’ that no advantage exist in the foreign jurisdiction before proceedings in that jurisdiction could be characterised as ‘vexatious or oppressive’ would seemingly not apply in circumstances where the anti-suit injunction was sought to be founded on the basis of a breach of a contractual right or an order to protect the integrity of the court’s processes.81 9.28 In Allstate Life Insurance Co v ANZ Banking Group Limited,82 Lindgren J rejected considerations of ‘administrative inconvenience’ and related additional cost as sufficient to justify the grant of an anti-suit injunction in that case on the ground of vexation and oppression.83 It is not considered that his Honour was

excluding considerations of that kind as irrelevant or incapable, in a particular case, of warranting anti-suit relief, and it is submitted that such relief should, as a matter of principle, be granted where the degree of ‘inconvenience’ occasioned by suit in the foreign forum would be such as to make proceedings in that forum ‘vexatious or oppressive’.84 In Henry v Henry,85 the High Court intimated that cases of pure concurrent litigation in different forums between the same parties in which complete relief may be had in both forums were vexatious and oppressive.86 An interlocutory anti-suit injunction was granted in QBE Insurance (Aust) Ltd v Hotchin87 in circumstances where an insurer in New South Wales proceedings had sought a declaration of non-liability under an insurance policy, having been joined as a third party cross-defendant in Illinois proceedings in which the representatives of the deceased insured sought indemnity. The issue of indemnity, which was governed by New South Wales law, was identical in both sets of proceedings. The anti-suit injunction was granted on condition that the insurer proceed to ready itself for the substantive argument in New South Wales on an urgent basis. Following that subsequent determination, in favour of the insurers, prohibitory and mandatory injunctions were granted requiring termination of the claims for indemnity in the [page 233] Illinois proceedings. A further anti-suit injunction was granted against a third party (who also claimed an interest in the insurance proceeds).88 9.29 That duplication and fragmentation may, in a particular case, warrant antisuit relief is also illustrated by the decision of the Full Court of the Family Court in In the Marriage of Dobson and Van Londen.89 In this case a wife was restrained from pursuing spousal maintenance and child support proceedings in the Netherlands in circumstances where she was a party to, and participating in, property proceedings in the Family Court of Australia against her former husband. The court held that:90 When regard is had to this interrelationship between proceedings and orders for property settlement, spousal maintenance and child support, we consider that it is vexatious and oppressive to commence and prosecute proceedings for spousal and child maintenance in a foreign court: when both parties are seeking orders for property settlement in this country; when identical issues relating to the parties’ financial positions and the needs of their children will need to be examined in all proceedings in question; and when all financial matters can be determined in this country. The oppression and vexation of such a situation is confirmed when regard is had to the language differences and differences in the legal systems between Australia and the Netherlands and the

wife’s considerable advantages over the husband in relation to these matters. A further matter of significance is the husband’s right to have reviewed (and possibly rendered nugatory) in Australia any Dutch maintenance order before it is enforced in this country.

9.30 The difficulty or inability for a defendant in foreign proceedings in not being able to bring all cross-claims for contribution or indemnity in the proceedings in which the defendant’s liability is sought to be established was a critical consideration underpinning the characterisation of foreign proceedings as vexatious and oppressive in Société Nationale Industrielle Aerospatiale v Lee Kui Jak.91 A similar conclusion was reached in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 1)92 where a pleading strategy by which the applicant in Federal Court proceedings chose to sue a third party cross-respondent in New York rather than in the (complex) multi-party Australian proceedings in which it was the moving party was held to be vexatious and oppressive, and to warrant the grant of a permanent anti-suit injunction. A corollary of both of these important cases is that where, in a multiparty dispute, one forum lends itself to the resolution of all aspects of a dispute but the moving party elects not to proceed in that forum, such conduct may be characterised as vexatious or oppressive. It is probably sufficient, however, if the foreign proceedings are, from an objective perspective, vexatious or oppressive on the applicant for the anti-suit relief. 9.31 Foreign proceedings may also be characterised as vexatious if the local court considers that they have been brought mala fide. This will often be a matter of inference. Smith Kline & French Laboratories Ltd v Bloch93 is an illustration of injunctive relief lying where mala fides can be demonstrated in the institution of [page 234] foreign proceedings. This, at least, was the explanation of the Smith Kline case offered by Lord Diplock in British Airways Board; British Caledonian Airways Ltd v Laker Airways Ltd. He stated that:94 … the decision was justifiable on the ground that the vexatious character of the proceedings against the American company was that its inclusion as defendants in the American proceedings was made mala fide for the sole purpose of laying an ostensible foundation for American jurisdiction for the claim against the English company.

This was also how Laws LJ viewed the foreign plaintiff’s conduct in Turner v Grovit,95 stating that it was ‘plain beyond the possibility of argument’ that these

proceedings were ‘launched in bad faith in order to vex the Plaintiff in his pursuit of the application before the Employment Tribunal here … All the credible evidence points one way. The documents lead to the ineluctable conclusion that the Spanish proceedings were intended and intended only to oppress the Plaintiff and as such fall to be condemned as abusive as a matter of elementary principle’.96 He also characterised the selection of another company within the group as the claimant in the Spanish proceedings as ‘nothing but a device to confer putative jurisdiction on the Spanish Court’ saying that it was a ‘sham and pretence’. An inference of bad faith was similarly drawn by the English Court of Appeal in Glencore International AG v Exter Shipping Ltd.97 9.32 Most recently, in Ace Insurance Ltd v Moose Enterprises Pty Ltd,98 an anti-suit injunction was granted not only on the basis of a breach of what was construed to be an exclusive jurisdiction clause but also on the basis that the foreign (Californian) proceedings between an Australian insured and an Australian insurer were vexatious and oppressive given the fact that the policy contained an Australian choice-of-law and submission-to-suit clause; given the location of the parties in Australia and the fact that that was where they made their contract; and given the ‘very faint’ connection of the dispute with California and the demonstrated fact of the absence of any benefit to be derived in that forum. Interestingly, Brereton J equated the terms ‘vexatious’ and ‘oppressive’ with the phrase ‘clearly inappropriate forum’ (as had been done in Voth v Manildra Flour Mills Pty Limited,99 a stay case). He translated the latter expression to the anti-suit injunction context, the High Court having indicated in CSR Limited v Cigna Insurance Australia Limited100 that one of the circumstances in which an anti-suit injunction may lie is where the conduct of the plaintiff in commencing or continuing the foreign proceedings is vexatious or oppressive. As such, he held that an anti-suit injunction would lie in circumstances where the foreign proceedings had been brought in a ‘clearly inappropriate forum’. _________________________ 1.

See generally AS Bell and JT Gleeson,‘The Anti-Suit Injunction’ (1997) 71 ALJ 955; M Moshinsky, ‘Comity and Foreign Anti-Suit Injunctions’ (2005) 79 ALJ 89;T Raphael, The Anti-Suit Injunction, Oxford University Press, London, 2008; A Briggs, Agreements on Jurisdiction and Choice of Law, Oxford University Press, London, 2008.

2.

Akai Pty Limited v People’s Insurance Company [1998] 1 Lloyd’s Rep 90; see also Bank of New York v Bank of America 861 F Supp 225 (1994), referred to by Lindgren J in Allstate Life Insurance Co v Australia and New Zealand Banking Group Limited [1995] FCA 1563; and the anti-suit injunction granted by the English Commercial Court, referred to by Warren J in Commonwealth Bank v White (No 3) [2000] VSC 259.

3.

Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 1) (1996) 64 FCR 1, 44; Re Siromath Pty Ltd (No 3) (1991) 25 NSWLR 25; CSR Ltd v New Zealand Insurance Co Ltd (1994) 36 NSWLR 138; Alkimos Shipping Company v Hind Lever Chemicals Corporation Limited [2004] FCA 969; Weinstock v Sarnat [2005] NSWSC 744; In the Marriage of Dobson and Van Londen (2005) 33 Fam LR 525; BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169; Vigano v Houghton (2009) 224 FLR 189; Ace Insurance Ltd v Moose Enterprises Pty Ltd [2009] NSWSC 724.

4.

National Australia Bank Limited v Idoport Pty Limited [2002] NSWSC 623.

5.

In the Earl of Oxford’s Case (1615) 1 Ch Rep 1 at 10; 21 ER 485 at 487, Lord Ellesmere LC stated that equity intervenes not ‘from any error or defect in the judgment, but for the hard conscience of the party’.

6.

Raphael, 2008, p 77.

7.

Lett v Lett [1906] 1 IR 618 at 629. See also Carron Iron Co v Maclaren (1855) 5 HL Cas 416 at 437.

8.

Donohue v Armco [2002] 1 Lloyd’s Rep 425 at 432; Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334 at 342; and see Ch 3.

9.

[1998] 1 Lloyd’s Rep 90.

10. See, for example, Laker Airways v Sabena Belgian Airways, 731 F 2d 909 (1984); TSMC North America v Semiconductor Manufacturing Corporation International,161 Cal App 4th 581, 589– 92 (Cal Ct App 2008), cited in TS Production LLC v Drew Pictures Pty Ltd (2008) 172 FCR 433. 11. Anti-suit injunctions have been foreclosed within the European Union, including in cases of anti-suit injunctions granted to restrain the breach of arbitration agreements: see West Tankers Inc v Riunione Adriatica di Sicurità SpA (The Front Comor) [2008] 2 Lloyd’s Rep 661, in which the European Court of Justice held that it was ‘incompatible with Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters for a court of a Member State to make an order to restrain a person from commencing or continuing proceedings before the courts of another Member State on the ground that such proceedings would be contrary to an arbitration’. 12. (1997) 189 CLR 345 at 397; see also TS Production LLC v Drew Pictures Pty Ltd (2008) 172 FCR 433 at [59]–[60]. 13. (1997) 189 CLR 345. 14. (2001) 208 CLR 199. 15. See, for example, Kolback Securities Limited v Epoch Mining NL (1987) 8 NSWLR 533. 16. See Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199. 17. See Meagher, Heydon and Leeming, Meagher, Gummow & Lehane’s Equity Doctrines and Remedies, 4th ed, Butterworths, Sydney, 2002, at [1-090–1-100]. This observation is subject to the consideration that in some instances, namely where the order restraining the foreign proceedings is supported as an exercise of the power of the court to protect the integrity of its own processes once set in motion, the exercise of the power to grant anti-suit relief does not derive from equity but from the court’s inherent jurisdiction: see Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 at [94]. 18. As, for example, where the plaintiff in the foreign proceedings is not only ordered not to continue such proceedings but is positively ordered to discontinue them. A mandatory anti-suit injunction was sought but refused in Atlasnavios Navegacao, Lda v Ship ‘Xin Tai Hai’ (2012) 291 ALR 795. 19. [1987] 1 AC 871.

20. See note 19 above at 893. 21. Airbus Industrie GIE v Patel [1999] 1 AC 119; Turner v Grovit [2002] 1 WLR 107; Donohue v Armco [2002] 1 Lloyd’s Rep 425. 22. See, for example, CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; Amchem Products Inc v Workers Compensation Board [1993] 1 SCR 897. 23. CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 390. 24. Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] 1 AC 871 at 895. 25. (1997) 189 CLR 345 at 391. 26. See note 25 above at 392. 27. See note 25 above at 394. 28. See note 25 above. 29. See note 25 above at 393. 30. See note 25 above at 393–4. 31. (1996) 64 FCR 1, 44. 32. (1996) 64 FCR 55. This decision was related to the relief granted in respect of substantive foreign proceedings reported at (1996) 64 FCR 1, 44. 33. Cf South Carolina Co v Assurantie NV [1987] AC 24. 34. (1990) 95 ALR 11. 35. See note 34 above at 33, 39–41. 36. [1892] P 98. 37. See note 36 above at 101. 38. [2012] VSC 495. 39. (1997) 189 CLR 345 at 391–2. 40. See note 39 above at 391, citing Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 at 892 (PC). 41. (1989) 87 ALR 539 42. See note 41 above at 564. 43. (1991) 25 NSWLR 25. 44. See note 43 above at 30. See also Otis Elevator Co v Guide Rails [2002] NSWSC 1004. 45. (1994) 36 NSWLR 138. 46. (1996) 64 FCR 1, 44. 47. [2002] 1 All ER (Comm) 1. 48. (2012) 291 ALR 795. 49. [2005] NSWSC 744. 50. Bank of Tokyo Ltd v Karoon [1987] AC 45 at 60. 51. See, for example, Hope v Carnegie (1866) LR Vol 1 320. 52. [2010] FCA 1481 at [4]–[9]. 53. [2013] 2 Lloyd’s Rep 179.

54. FCA, 21 September 1995, unreported. 55. (1996) 64 FCR 1, 44. 56. 861 F Supp 225 (1994). 57. A recent Australian example is Ace Insurance Ltd v Moose Enterprises Pty Ltd [2009] NSWSC 724. There are countless English examples of anti-suit injunctions being granted to restrain the breach of an exclusive jurisdiction clause, especially since the decision of the English Court of Appeal (in respect of a breach of an arbitration clause) in The Angelic Grace [1995] 1 Lloyd’s Rep 87; see, for example, Akai Pty Limited v People’s Insurance Company [1998] 1 Lloyd’s Rep 90. 58. An Australian case illustrating this is Alkimos Shipping Company v Hind Lever Chemicals Corporation Limited [2004] FCA 969. Again, there are countless English examples. 59. Lett v Lett [1906] 1 IR 618; National Westminster Bank plc v Utrecht-America Finance Co [2001] 1 All ER (Comm) 7. 60. The Tropaioforos (No 2) [1962] 1 Lloyd’s Rep 410. 61. Ellerman Lines Ltd v Read [1928] 2 KB 144; Settlement Corporation v Hochschild [1966] 1 Ch 10; Apple Corps Ltd v Apple Computer Inc [1992] RPC 70; National Westminster Bank Ltd v UtrechtAmerica Finance Co [2001] 2 All ER (Comm) 7. 62. The Angelic Grace [1995] 1 Lloyd’s Rep 87 at 96; Bankers Trust Co v PT Jakarta International Hotels and Development [1999] 1 Lloyd’s Rep 910. 63. XAG v A Bank [1983] 2 All ER 464. 64. [1995] 1 Lloyd’s Rep 87. 65. See note 64 above at 96. 66. [2009] NSWSC 724. 67. Although an anti-suit injunction was not given on the basis of a breach of the choice-of-law clause, it was given on the basis of a breach of a submission-to-suit clause that was construed as an exclusive jurisdiction clause as well as on the basis of vexatious or oppressive conduct. See at 9.32. 68. Cf Breavington v Godleman (1988) 169 CLR 41. 69. [2002] 1 Lloyd’s Rep 425. 70. [1994] 1 Lloyd’s Rep 56. 71. (1997) 189 CLR 345 at 393–4. 72. [1987] AC 45. 73. A claim for civil relief appended to a foreign criminal proceeding was held to provide a moving party a legitimate forensic advantage negating vexation or oppression in Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 2) (2010) 267 ALR 46. 74. (1997) 189 CLR 345 at 393–4. 75. (1997) 189 CLR 345 at 394. In Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 2) (2010) 267 ALR 46, Logan J indicated that he did not consider the approach of the High Court in CSR v Cigna Insurance to be narrower than the English approach to the grant of such relief. 76. Every claim arising under a civil law system is necessarily statutory. Cf Mody v South Seas Cruises Ltd [2009] NSWSC 183 at [24]. 77. Critical because it was this fact that led the majority to conclude that, because the Sherman Act claim could not be litigated in New South Wales, there was a remedy available in the foreign forum not available locally with the consequence that the foreign proceedings could not be characterised as

vexatious or oppressive. It was also critical because it meant that there was only one forum (the foreign forum) in which it was held that all aspects of the parties’ dispute could be litigated. 78. Violation of the Sherman Act for conflict of law purposes would be characterised as a tort. 79. (2002) 210 CLR 491. 80. In McHenry v Lewis (1882) 22 Ch D 397 at 414, Scrutton LJ stated that vexation and oppression would exist where there was ‘some motive other than a bona fide desire to determine disputes’. In Logan v Bank of Scotland (No 2) [1906] 1KB 141, the plaintiff sought to justify the commencement of English proceedings on the ground that one of the defendants resided in England. The fact that that defendant was an undischarged bankrupt who was unable to afford even to defend the action led Sir Gorrel Barnes P to conclude that his joinder to proceedings was not bona fide and that the commencement of the English proceedings was vexatious. 81. This would seem to follow from the fact that, having rejected the application for the anti-suit injunction on the basis of vexation and oppression by reason of the availability of the Sherman Act remedy in New Jersey and not in New South Wales, the court still considered it relevant to consider whether or not there was in fact a contract not to sue and thus a further basis for the grant of the anti-suit relief. 82. (1996) 64 FCR 1, 44. 83. An anti-suit injunction was granted on other grounds. 84. Cf TS Production LLC v Drew Pictures Pty Ltd (2008) 172 FCR 433; Mody v South Seas Cruises Ltd [2009] NSWSC 183 at [21]. 85. (1996) 185 CLR 571 at 588–91. 86. See also United Pacific Finance Pty Ltd v Tarrant [2009] NSWSC 630 at [33]; Telesto Investments Ltd v UBS AG [2012] NSWSC 44 at [171]–[173]. 87. [2011] NSWSC 681. 88. QBE Insurance (Aust) Ltd v Thornton [2012] NSWSC 217. 89. (2005) 33 Fam LR 525. 90. See note 89 above at 541–2. 91. [1987] AC 871. 92. (1996) 64 FCR 1, 44. 93. [1983] 2 All ER 72. 94. [1985] AC 58 at 86. 95. [2000] QB 345. 96. See note 95 above at 362. 97. [2002] 1 All ER (Comm) 1. 98. [2009] NSWSC 724. 99. (1991) 171 CLR 538. 100. (1997) 189 CLR 345.

[page 235]

Chapter 10

State Immunity, Act of State and Non-Justiciability Introduction 10.1 Until the 1970s English and Australian courts adhered to the ‘absolute theory’ of state immunity; that is to say, they did not allow a foreign state to be impleaded directly or indirectly, regardless of the nature of the act or transaction which was the subject matter of the suit.1 10.2 The growth of state intervention in commercial matters during the past century led to the acceptance of the ‘restrictive theory’ of state immunity. According to this theory a foreign state and its instrumentalities are not automatically entitled to immunity in respect of all its activities, but only in respect of such acts or transactions that are governmental in character. The restrictive theory was adopted by the House of Lords in I Congreso del Partido2 as part of the common law. However, by the time of that decision in 1981, the restrictive theory had been legislated into effect for the United Kingdom in the State Immunity Act 1978 (United Kingdom) with respect to transactions occurring after November 1978. Australia also adopted the restrictive theory of State immunity in the Foreign States Immunities Act 1985 (Cth) which, with one minor exception,3 entered into force on 1 April 1986.4 Like its United Kingdom counterpart, the statute only applies to transactions or events which took place after the commencement of the Act.5 However, a number of Australian courts have accepted the principles laid down [page 236]

by the House of Lords in I Congreso del Partido as part of the common law of this country.6 The fundamental rule as stated in s 9 of the Act is that a foreign state is immune from the jurisdiction of the courts of Australia except as provided in the Act. Jurisdiction in this sense is a reference to the amenability of a defendant to the process of Australian courts.7The rationale from the immunity lies in the promotion of comity and good relations between states through mutual respect for state sovereignity.8 The immunity is to be understood as a freedom from liability to the imposition of duties by the process of Australian courts.9

Who is Entitled to Immunity? 10.3 Sovereign immunity under the Act attaches to any independent sovereign state both within and without the Commonwealth of Nations, as well as those territories whether self-governing or not, which have a separate status from the metropolitan state to which they are attached, for example, the Cook Islands, American Samoa and other territories associated with China, the United States, France or the United Kingdom.10 It also attaches to a province, state, selfgoverning territory or other political subdivision of a foreign state, for example, the constituent units of a federal state such as Russia, the United States or the Federal Republic of Germany.11 It has been held by the English Court of Appeal in JH Rayner (Mincing Lane) Ltd v Dept of Trade and Industry12 that the European Economic Community is not a state for the purposes of the State Immunity Act 1978 (United Kingdom). 10.4 Immunity can be claimed by the head of a state, territory or unit, such as a president, monarch or governor-general, in the exercise of his or her public functions.13 In a private capacity the head of state or spouse thereof has the same [page 237] immunity as the head of a diplomatic mission under the Diplomatic Privileges and Immunities Act 1967 (Cth),14 but service upon them must be effected by diplomatic means as in the case of a foreign state.15 The effect of s 36(1) of the Foreign States Immunities Act 1985 is that the head of a foreign state will enjoy criminal and civil immunity in respect of acts done in his or her private capacity, including immunity from measures of execution, in all cases other than a real action relating to private immovable property (unless held on behalf of the

foreign state), an action relating to succession where the head of state is the executor, administrator, heir or legatee (as a private person) or in an action relating to any professional or commercial activity in Australia undertaken in a private capacity. In Thor Shipping A/S v Ship ‘Al Duhail’, Dowsett J rejected an argument that a foreign head of state was only entitled to immunity while he or she was physically in Australia in respect of acts done in a private capacity.16 10.5 Immunity can also be claimed by the executive government or part of the executive government of such state, territory or unit.17 A department or organ of a foreign government would fall within the definition of ‘part of the executive government’. A body with separate legal existence can nevertheless be part of a government if it lacks independent power and authority.18 Further, the foreign state’s immunity cannot be circumvented by suing its servants or agents.19 Individuals in addition to a serving head of state may also be entitled to immunity if part of the government of a foreign state.20 The immunity of such individuals has been identified as being sourced in s 3(3)(c) rather than s 3(1) of the Act. Importantly, the immunity is not confined to presently serving heads of state nor to presently serving individuals who form part of the government of a foreign state.21 10.6 The usual method of determining whether a particular person or entity is a foreign state, territory or unit thereof, a head of state or part of a foreign government will be by applying for a certificate from the Minister of Foreign Affairs and Trade pursuant to s 40 of the Foreign States Immunities Act 1985 which, if issued, will be conclusive, however unreal the independence of the government concerned may appear to the impartial observer.22 A recent example of such a certificate being issued is Pan v Bow23 where a certificate was issued in respect of the defendant who had been the Governor, Standing Member and Deputy Secretary of the Chinese Communist [page 238] Party Committee of Liaoning Province of the People’s Republic of China.24 If the minister refuses to give a certificate, or his or her certificate is ambiguous, the court must determine the existence of a disputed sovereignty on the evidence available to it like any other disputed question of fact.25 10.7 Special provision is made in respect of ‘separate entities’. Such an entity is a foreign person or corporation which is an agency or instrumentality of the

foreign state, territory or unit but is not a department or organ thereof.26 Such bodies would include state trading corporations,27 central banks,28 state-owned airlines, depending on their particular ownership structure29 and individuals contracting on behalf of a foreign state.30 10.8 Separate entities are in principle entitled to the same immunity as foreign states subject to the same exceptions. However, they cannot claim the immunity granted under the Act in respect of inter-governmental commercial and arbitration agreements and disputes concerning membership of foreign corporations of which governments are the only shareholders. For those purposes a ‘separate entity’ must be treated as a non-government person or corporation.31 10.9 Section 38 of the Act provides that ‘[w]here, on the application of a foreign State or a separate entity of a foreign State, a court is satisfied that a judgment, order or process of the court made or issued in a proceeding with respect to the foreign State or entity is inconsistent with an immunity conferred by or under this Act, the court shall set aside the judgment, order or process so far as it is so inconsistent’. Further, a default judgment cannot be entered against such a body or person unless the court is first satisfied that he, she or it is not immune in relation to the proceeding,32 and s 27 of the Foreign States Immunities Act 1985 leaves no scope in this regard for the exercise of any residual discretion. If by inadvertence a judgment or order is rendered in a situation where immunity applies, the court is obliged to set aside that judgment or order.33 In such a case, it matters not that any s 40 certificate issued by the Minister of Foreign Affairs and Trade certifying the sovereign status of a defendant is issued after the entry of judgment.34 In three recent cases in the Supreme Court of New South Wales, the Commonwealth Attorney-General has [page 239] been granted leave to intervene to raise sovereign immunity questions (effectively on behalf of another state) and to assist the court in circumstances where the defendants had not entered an appearance.35 That course may, to some extent, be open to question (at least outside the scope of section 27 of the Act) in light of the High Court’s observation that it is not a correct construction of the Act that even without an application under s 38 to set aside service, or an application under s 27 for a default judgment, the court must of its own motion

satisfy itself that the defendant could not establish immunity.36

Visiting Forces 10.10 At common law members of the armed forces of a foreign state temporarily stationed here with the consent of the Australian government are exempt from the jurisdiction of our courts both collectively and individually to the extent that such an exemption is necessary in order to maintain it as an efficient force available for the service of that state. An Australian court would, therefore, not normally assume jurisdiction over disputes arising between members of such a force, including members of the civilian component of that force who are also citizens of the sending state.37 But the exemption from jurisdiction is not absolute: it does not extend to debts contracted by a member of the force with a local civilian or to any civil wrongs that member may have committed against local civilians38 or foreign civilians employed by the force.39 10.11 In respect of events occurring on or after 1 April 1986, in principle the Foreign States Immunities Act 1985 (Cth) also applies to visiting forces in Australia.40 However, s 6 of the Act provides that any privilege or immunity that is conferred by the Defence (Visiting Forces) Act 1963 (Cth) is not affected. The only restraint on bringing civil proceedings under the latter Act is found in s 13 of the Defence (Visiting Forces) Act 1963 (Cth). That provision prohibits the bringing of proceedings in respect of the pay, the terms of employment, or the discharge, of a member of a visiting force or of the civilian component of such a force. [page 240]

Indirect Immunity 10.12 Under the previous law immunity could, in certain circumstances, be claimed even though a foreign sovereign was not directly impleaded. Thus, in United States and France v Dollfus Mieg et Cie and the Bank of England41 the defendant bank held certain bars of gold which the Germans had seized from the plaintiff firm during their occupation of France. The bars had been recovered by the Allied forces in 1945 and the Allied governments had placed them with the bank pending their ultimate disposal. When the plaintiff brought action to

recover the gold from the bank, the House of Lords held that the bank’s possession of the gold as bailee of the Allied governments amounted to a possession by these governments themselves. The same principle was applied to a chose in action such as a bank account standing in the name of a foreign sovereign or a person acting on his or her behalf.42 10.13 The Act does not specifically provide for immunity arising out of the substance of the action. If a foreign state entity wishes to exclude the jurisdiction of an Australian court with respect to an asset in which it claims an interest, it can do so by intervening in the proceedings for the purpose of claiming immunity.43 The court cannot in that case determine whether the state entity does in fact have such an interest, but the claimant must establish at least an arguable case.44 Even if the foreign state does not intervene in the proceedings, but the court becomes aware that there is an arguable case as to its interest in the subject matter of the proceedings, it may stay them.45 Each case will turn on its own facts. Thus, in Victoria Aircraft Leasing Limited v United States,46 a claim brought by Wells Fargo Bank Northwest NA against Victoria Aircraft Leasing Limited, an agency of the Republic of Nauru, was permitted to proceed notwithstanding that the agency in effect wished to implead the United States of America which, it claimed, had guaranteed the agency’s liability to Wells Fargo as partial consideration for various acts of assistance to and co-operation with the United States by the Republic of Nauru. The Victorian Court of Appeal did not consider, in the circumstances of that case, that the guarantee given by the United States for Wells Fargo’s claim against the agency made it impermissible to agitate, for reasons of non-justiciability, the alleged agreement between the United States of America and the Republic of Nauru. [page 241]

Exceptions from Immunity 10.14 To the general principle that a foreign state entity is entitled to immunity, the Act provides for a number of exceptions. Whenever the question arises whether a defendant state entity is immune by virtue of s 9 or not immune by virtue of one of the exceptions this must be decided as a preliminary issue before the substantive action can be allowed to proceed.47 As Lord Bingham said in Jones v Ministry of the Interior of the Kingdom of Saudi Arabia:48 ‘… a state is

either immune from the jurisdiction of the foreign court or it is not. There is no halfway house and no scope for the exercise of a discretion’. The exceptions can be summarised as follows.

By submission 10.15 An entity or person entitled to state immunity may waive that immunity by submission.49 Submission takes place if the entity or person institutes proceedings in an Australian court or takes a step in such proceedings other than for the purpose of asserting immunity, making an application for costs, or intervening for the purpose of asserting an interest in property.50 Even after a procedural step amounting to submission has been taken, its effect can be undone if the person initiating that step was in reasonable ignorance of the immunity and asserts the same without unreasonable delay.51 10.16 Submission can also take place by agreement whether made in advance of, or during the proceedings and subject to any limitations and/or exclusions as may be stipulated,52 but the fact that the proper law of the agreement is that of Australia is not a submission.53 In other words, an agreement to submit must be expressed as such.54 An entity otherwise entitled to state immunity will also be bound by an arbitration agreement both as to judicial supervision and enforcement unless it is an inter-governmental agreement.55 Section 10(2) of the Foreign States Immunities Act 1985 contemplates that submission may occur ‘by agreement or otherwise’. [page 242] In Li v Zhou,56 an argument that China had, as a State Party to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, implicitly submitted to the jurisdiction of Australian courts to determine any claim amounting to an allegation of torture as defined in the Convention was rejected. 10.17 In addition to any person who has the authority to submit to the jurisdiction of Australian courts under the law of the foreign state, s 10(11) of the Foreign States Immunities Act 1985 (Cth) also confers that authority on the head of that state’s diplomatic mission in Australia and the person who has entered into a contract on behalf of and with the authority of that state.

Commercial transactions 10.18 In a radical departure from the previous law, the Foreign States Immunities Act 1985 (Cth) provides in s 11(1) that a foreign state is not immune in a proceeding concerning a commercial transaction unless all the parties to the agreement are governments, or have agreed to immunity, or the proceeding concerns a payment in respect of a grant, a scholarship, a pension or a payment of a like kind.57 In Australian International Islamic College Board Inc v Kingdom of Saudi Arabia,58 the Queensland Court of Appeal rejected an argument that a proceeding to enforce an assurance by the Kingdom of Saudi Arabia to the Australian International Islamic College Board (and the Commonwealth and State Governments) that it would meet the costs of educating the children of Saudi scholarship recipients studying in Australia was not a proceeding concerning a payment in respect of a scholarship, and therefore the proceedings did not consist of an exception to the commercial transaction exception to immunity. The Court noted that the object of the scholarship exception was to avoid litigation between foreign states conferring benefits and the recipients of those benefits, and this was different from a commercial arrangement between a foreign state and a party which was to deliver or provide such benefits. 10.19 The definition of ‘commercial transaction’ in s 11(3) is very broad. It covers any commercial, trading, business, professional or industrial or like activity, including specifically: (a) a contract for the supply of goods or services; (b) an agreement for a loan or some other transaction for or in respect of the provision of finance; and (c) a guarantee or indemnity in respect of a financial obligation. 10.20 The test is an objective one. The court does not have to enquire whether, for instance, the goods and services are to be supplied for military purposes or for civilian use; it is sufficient that the transaction itself which has given rise to the [page 243] proceeding is of a commercial nature, for example, a contract for the sale of guns

or food. On the other hand, a non-commercial transaction such as a gift made on behalf of a foreign state to assist Islamic schools in Australia will attract immunity, even though it could not be described as an exercise of sovereign authority.59 10.21 What is involved is essentially a characterisation exercise. This may be complicated when the transaction (or alleged transaction) in question has a number of different elements or dimensions. Thus, in Victoria Aircraft Leasing Limited v United States,60 it became necessary for the court to consider whether an alleged transaction was commercial in terms of s 11(3) of the Act. The alleged transaction was said to involve undertakings by the Republic of Nauru in respect of activities relating to its diplomatic and foreign relations, national security, intelligence, terrorism and the reform of banking laws and passport abuse in return for alleged promises by the United States to provide economic assistance to the government of Nauru. Such assistance was to take various forms but, most relevantly, was to include a promise to assist Nauru to deal with its obligations to repay a loan made to assist the financing of an aircraft lease. At first instance, it had been held that, if a transaction was substantially, essentially or predominantly of a political, diplomatic, governmental or intelligence or like character, it was not a ‘commercial transaction’ despite the fact that one or more elements of the transaction might fall within one of the sub-paragraphs of s 11(3) of the Act. In dismissing an appeal from this decision, Buchanan JA held that a promise to influence a creditor to extend time for repayment or indeed to forgive a debt was not a loan or a transaction for or in respect of the provision of the finance. In any event, it was held that that element of the transaction, viewed as a whole, was not the most significant or substantial element in the United States’ offer of economic assistance. It was also observed that the vagueness of the terms of the transaction and their lack of specificity tended against a characterisation of the transaction as commercial. By way of contrast, in Australian International Islamic College Board Inc v Kingdom of Saudi Arabia,61 the Queensland Court of Appeal held an educational funding arrangement between the appellant and the Republic of Saudi Arabia to be a commercial transaction within the meaning of s 11 of the Act, the Court noting that the nature of the transaction which was the subject matter of the proceeding involved no challenge to the sovereignty or dignity of a foreign State. 10.22 However, when action is taken in rem against a ship or cargo, it may be necessary to enquire into purpose. Section 18 provides that there is no immunity if, at the time the cause of action arose, the ship was in use for commercial purposes, or in the case of cargo, if the cargo was commercial property. That is

further defined in s 32(3) as property, other than diplomatic or military property, that is in use ‘substantially for commercial purposes’. Furthermore, state-owned ships or cargo, [page 244] whether commercial or not, cannot be arrested or detained in a physical sense as opposed to the purely formal method of serving the writ.62 10.23 In PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission,63 Garuda, together with a number of other airlines, was the subject of civil penalty proceedings brought by the ACCC in relation to alleged anticompetitive arrangements or understandings relating to the imposition of surcharges on commercial freight services to Australia. The High Court rejected Garuda’s argument that s 11(1) of the Act did not apply because the proceedings did not seek to vindicate any private law right in respect of any freight contract. It was not necessary in order for proceedings to fall within the exemption that they be brought by a party to the commercial transaction in question nor that the commercial activity was of a nature that the common law of Australia would characterise it as contractual. 10.24 Specific provision is made in respect of contracts of employment in s 12. Regardless of its commercial nature or otherwise, immunity is denied in respect of contracts of employment made in Australia or to be performed within Australia unless the employee at the time of entry into the contract was a citizen or resident of the foreign state, or the contract excluded jurisdiction in circumstances permitted by Australian law, or the employee is a diplomatic or consular official of the foreign state who was not a citizen or resident of Australia at the time the contract was made.64 The denial of immunity extends to circumstances in which a state may be held vicariously liable for acts of its employees, even if those employees are themselves immune for other reasons, such as diplomatic or consular immunity.65 A court may not make an order that the foreign state entity employ a person or reinstate a person in employment.66 Section 19 deprives a foreign state as understood in its wider connotation, of immunity in relation to bills of exchange drawn, made, issued or indorsed by it in connection with a transaction for which it has no immunity. It will also be subject to local jurisdiction in respect of disputes concerning copyright, patents, trade marks and names and the like if used or imported into Australia for the

purposes of a commercial transaction.67

Proceedings in tort, property and company law 10.25 The Act also deprives a foreign state entity of immunity in respect of other non-commercial situations. By virtue of s 13 it cannot claim immunity in respect of personal injury or property damage caused by its acts or omissions in Australia. [page 245] This is in sharp contrast to the common law position, at least before I Congreso del Partido, under which states were immune from liability for personal injuries.68 10.26 In relation to property the Act reasserts the common law position that the foreign state entity must submit to the jurisdiction of Australian courts in respect of its ownership, possession or use of immovable property situated in Australia.69 The premises used as the diplomatic mission, provided they are in current use,70 are protected by the Vienna Convention on Diplomatic Intercourse and Immunities 1961 Art 31(1)(a). But this protection does not apply to privately rented accommodation occupied by a diplomat other than the head of mission.71 10.27 A foreign state is also not immune in a proceeding concerning its interest arising under a trust or by way of gift or succession.72 10.28 Finally, the foreign state entity must suffer the jurisdiction of Australian courts in relation to its membership of a corporation, partnership or other body73 established under Australian law or with its principal place of business here, unless it is an inter-governmental body or the relevant parties have agreed to exclude the jurisdiction.74 Nor is it immune if it is sought to place that body into liquidation or wind it up.75

No torture exception 10.29 A series of recent cases throughout the common law world has made plain that state sanctioned acts of torture committed in a foreign state are, nevertheless, covered by the principles of sovereign immunity.76 Thus, in Zhang

v Zemin,77 the court held the defendants immune from suit in relation to alleged acts of torture against members of the Falun Gong as these acts were ‘undoubtedly connected with the policy of the People’s Republic of China … however odious those practices may be to the community of nations that seeks to uphold the Torture Convention’. Ironically, torture under that Convention is relevantly defined by reference to its being carried out or connived in by a public official or a person acting in an official capacity. [page 246]

Service of Process 10.30 Unless the foreign state entity has agreed to a particular mode of service upon it,78 service of initiating process must be effected by delivering it to the Commonwealth Attorney-General for transmission via the Department of Foreign Affairs and Trade to the equivalent department of the foreign state concerned.79 It does not follow, however, that such service requires transmission of the process abroad; in a particular case, transmission of process to the department or organ of the foreign country that is the equivalent of the Department of Foreign Affairs and Trade may be possible by transmission of the process to a foreign country’s diplomatic mission in Australia.80Where service is to be effected out of the jurisdiction, however, the rules that govern that service out of the jurisdiction must also be complied with as service is not on the Attorney-General. The rules of the court out of which the process issued in relation to service out of the jurisdiction must also be complied with.81 Any other purported service of the process, for example, upon the foreign state direct, is ineffective82 unless the foreign state entity waives the objection by entering an unconditional appearance.83 For there to be a waiver of objection for these purposes, the state must have conducted itself in such a way as to indicate that it does not challenge the jurisdiction of the court on the grounds of ineffective service.84 There is a problem if there has been a rupture of diplomatic relations. In that case, it would seem, service may be impossible.85 10.31 No default judgment can be entered unless the court is satisfied that service has been effected in accordance with the Act.86A default judgment cannot be enforced until two months after it has been served on the state entity in accordance with s 28. Under s 40(1)(d), the Minister for Foreign Affairs and

Trade may certify in writing that, for the purposes of the Foreign States Immunities Act 1985 (Cth), service of a specified document such as initiating process was effected on a specified day. It has been held that such a certificate, in order to have the conclusive effect contemplated by s 40(5) of the Act, needs to do more than baldly state that service of documents [page 247] was effected in accordance with s 24 of the Act. Such a certificate should be to the effect that documents were served on a specific department or organ of the state at a particular place on a particular day, that department or organ being the foreign state’s equivalent of the Department of Foreign Affairs and Trade.87

Enforcement 10.32 In situations where immunity does not apply, the court may make any order (including an order for interim or final relief) that it may otherwise lawfully make.88 When it comes to enforcement, however, it must once again consider the issue of immunity. 10.33 The general principle as stated in s 30 is that the property of a foreign state89 is not available for the execution of a judgment, order or arbitration award or, in Admiralty proceedings, for the arrest, detention or sale of the property. Nonetheless, execution may be levied against the property of such bodies90 in the following circumstances.

Waiver 10.34 Immunity from execution may be waived by the head of the state’s diplomatic mission in Australia or any other person who has authority to do so under the law of that state. The fact that the state has previously submitted to the jurisdiction of the court in relation to the dispute itself does not amount to a waiver of immunity from execution on the resulting judgment. 10.35 Alternatively, immunity from execution may be waived by agreement in which case the waiver cannot be withdrawn except as provided in the agreement. In either case the waiver may be subject to specified limitations. Diplomatic or

military property is prima facie excluded from the waiver unless expressly specified.91

Commercial property 10.36 The immunity from execution does not extend to commercial property.92 ‘Commercial property’ is defined in s 32(3) as ‘property, other than diplomatic property or military property, that is in use by the foreign State concerned substantially for commercial purposes’. As has been pointed out earlier, this test differs somewhat from the objective test of what is a commercial transaction in relation to immunity from litigation. Thus, a bank account kept by a diplomatic [page 248] mission with a trading bank is ‘commercial property’ but if it is primarily used to cover the daily expenses of the mission, it is not used for commercial purposes.93 10.37 If the property is vacant or apparently not in use, for example, the deserted Embassy of Iran in Westminster City Council v Islamic Republic of Iran,94 it shall be taken to be being used for commercial purposes unless the court is satisfied that it has been set aside for non-commercial purposes.95 10.38 In the case of a ship or cargo, arrest, detention or sale of that ship or cargo is permitted if at the time of arrest or detention the ship or cargo was used substantially for commercial purposes. In the case of cargo carried on a foreign ship that ship also must be used substantially for commercial purposes.96 10.39 A certificate as to the nature of the use of property therein issued by the head of the diplomatic mission in Australia of the foreign state concerned, is admissible in evidence under s 41 of the Foreign States Immunities Act 1985 (Cth), but is not conclusive.

Immovable property 10.40 Where an order has been made pursuant to s 14 of the Foreign States Immunities Act 1985 (Cth) in relation to the ownership, possession or use of immovable property in Australia or in relation to property of any kind acquired by gift or succession, that property is not immune from execution.97

Separate entities 10.41 The property of separate entities, other than central banks or monetary authorities, is not immune from execution unless the separate entity would, but for its submission to the litigation, have been entitled to immunity.98 Thus, a state trading corporation sued in respect of a commercial transaction is liable to execution in respect of all its assets whether used for commercial purposes or not. 10.42 In situations where it only became liable to suit because of waiver of immunity, its position is the same as that of a foreign state; that is, immunity applies unless the matter falls within one of the earlier three exceptions.

Diplomatic and Consular Immunity 10.43 Although sometimes the immunity of diplomatic and consular posts is spoken of as an ‘extra-territorial’ privilege, diplomatic and consular premises form indisputably part of the territory of the receiving state for the purposes of both [page 249] criminal99 and civil proceedings.100 The premises and the personnel of such posts are, however, entitled to certain jurisdictional immunities, which are now regulated by international conventions. 10.44 Australia is a party to both the 1961 Vienna Convention on Diplomatic Intercourse and the 1963 Vienna Convention on Consular Relations. The former is part of our law by virtue of the Diplomatic Privileges and Immunities Act 1967 (Cth) and the latter by virtue of the Consular Privileges and Immunities Act 1972 (Cth). The continued operation of the privileges and immunities conferred by those Acts is preserved by s 6 of the Foreign States Immunities Act 1985 (Cth). 10.45 The Conventions apply to all representatives of overseas countries including members of the Commonwealth of Nations. Under the Consular Privileges and Immunities Act 1972 (Cth) s 9, the Governor-General may, by regulation, confer on the personnel of a post established by a declared

Commonwealth country which is not otherwise entitled to diplomatic or consular immunity, all or any of the privileges or immunities that are conferred by the Act and Convention on consular officers. This provision enables the granting of consular immunity to offices established by Commonwealth countries such as the Malaysian Education Offices in Melbourne and Perth.101

The Diplomatic Convention 10.46 The Convention draws a distinction between four categories of persons entitled to diplomatic immunity in varying degrees. These are in order of importance:

Diplomatic agents 10.47 The term ‘diplomatic agent’ includes the head of mission and the members of the diplomatic staff. Under Art 31(1) of the Convention a diplomatic agent is entitled to immunity from the criminal, civil and administrative jurisdiction of the receiving country, except in the case of: (a) a real action relating to private immovable property situated in the receiving country, unless he holds it on behalf of his country for the purposes of the mission. A ‘real action’ is an action in which the title to, or possession of, the property is at issue;102 (b) an action relating to succession in which he is involved in a private capacity as an executor, administrator, heir or legatee; (c) an action relating solely to any professional or commercial activity carried on by him in the receiving country outside his official functions. It has been held that the institution of matrimonial proceedings, including a claim for property adjustment in respect of a property purchased as an investment, does not fall within this exception.103 [page 250] 10.48 Under Art 31(3) no measure of execution may be taken against a diplomatic agent except where the case comes under (a), (b) or (c) above and then only subject to the proviso that the inviolability of his or her person and residence is respected.

10.49 Article 24 provides that the correspondence and documents of the foreign sovereign and the mission shall be kept inviolate. This has been held to exclude the jurisdiction of English courts in relation to a defamation action arising out of a memorandum written by the head of mission about the alleged misdoings of a member of his staff in England.104 For the same reason it has been held that a body enjoying diplomatic immunity cannot be compelled to produce its documents unless they had been communicated to a third party with its authority.105 10.50 By virtue of Art 38(1) a diplomatic agent who is a citizen of, or is permanently resident in, the receiving country is only entitled to immunity in respect of official acts performed in the course of his or her functions. 10.51 Article 37(1) provides that the members of the family of a diplomatic agent forming part of his or her household106 shall, if they are not Australian citizens, enjoy the same privileges and immunities.

Members of the administrative and technical staff 10.52 This term includes such personnel as clerks, stenographers, cipher clerks and the like. Such persons, together with their families forming part of their respective households, enjoy under Art 37(2), if they are not citizens or permanent residents of the receiving country, the same privileges and immunities as a diplomatic agent, except that their immunity from civil and administrative jurisdiction does not extend to acts performed outside the course of their duties. 10.53 Members of the administrative and technical staff who are citizens of, or permanent residents in, the receiving country are only entitled to immunity from criminal, civil or administrative jurisdiction in respect of acts performed in the course of their duties.107 Their families do not enjoy any immunity.

Members of the service staff 10.54 This term includes persons such as cooks, butlers, footmen and the like who are employed by the mission itself and not by the diplomatic staff. Members of the service staff have an immunity by virtue of Art 37(3) in respect of acts performed in the course of their duties. This immunity is also granted to members of the service staff who are citizens of, or permanently resident in, Australia.108

[page 251]

Private servants of members of a diplomatic mission 10.55 Such persons are not entitled to immunity under the Convention. However, the Diplomatic Privileges and Immunities Act 1967 (Cth) in s 11 provides for immunity in respect of acts performed in the course of duty for: (a) private servants who are citizens of, or are ordinarily resident in, Australia; and (b) private servants of the head of mission, who are not citizens of, or ordinarily resident in, Australia.

The Consular Convention 10.56 The Consular Convention also draws a distinction between various grades of personnel. The widest degree of immunity is enjoyed by consular officers which term refers to any person, including the head of a consular post, entrusted with the exercise of consular functions. A somewhat lesser degree of immunity is enjoyed by consular employees, which refers to persons employed in the administrative or technical service of a consular post, and the least immunity is possessed by members of the service staff who are employed in the domestic service of the consular post. 10.57 By virtue of Art 43 consular officers and consular employees, including persons who are citizens of, or are ordinarily resident in, Australia,109 are not amenable to the jurisdiction of the judicial or administrative authorities of the receiving country in respect of acts performed in the exercise of consular functions.110 This immunity does not apply, however, in the case of a civil action either: (a) arising out of a contract concluded by a consular officer or consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or (b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft. 10.58 Under Art 44 all persons employed at a consular post may be called upon to attend as witnesses in the course of judicial or administrative proceedings.

They are, however, under no obligation to give evidence concerning matters connected with the exercise of their functions or to produce official correspondence and documents relating thereto. They are also entitled to decline to give evidence as expert witnesses with regard to the law of the sending state. Apart from this they may not decline to give evidence. However, a consular officer cannot be punished for refusing to do so. 10.59 By virtue of Art 58(2) the immunities set out in Art 43 and the right to decline to give evidence connected with the exercise of their functions or to give evidence as expert witnesses with regard to the law of the sending state also adhere to honorary consular officers. [page 252]

International organisations 10.60 International organisations are bodies that have been created by agreements between states. Obvious examples are the United Nations and related bodies such as the International Court of Justice, the International Labour Organization and the World Health Organization. Such bodies have legal personality under international law distinct from the states that are its members. That legal personality has no standing in the domestic law of Australia unless the body has juridical personality conferred upon it under the International Organisations (Privileges and Immunities) Act 1963 (Cth) or under the domestic law of a foreign country.111 An international body whose constituent members are sovereign states does not necessarily share the immunity of its constituent members.112 10.61 This is done in Australia under the International Organisations (Privileges and Immunities) Act (Cth) which enables the Governor-General by regulation to confer upon an international organisation of which Australia and other countries are members ‘juridical personality and such legal capacities as are necessary for the exercise of the powers and the performance of the functions of the organisation’.113 Such a regulation does not convert the body into a domestic corporation. Its relationship with its members and their responsibility for its actions and debts are governed by international law.114 10.62 The Act further makes provision in s 6(1) for the conferring of immunity from suit and other legal process and for the inviolability of the assets of such

organisations in Australia, and the immunity from suit and other legal process of the officers and representatives of such organisations in respect of acts done as such officer or representative.115

Period of immunity 10.63 When the functions of a person entitled to immunity have come to an end, the immunity ceases at the moment that person leaves the receiving country or upon expiry of a reasonable period in which to depart.116 However, immunity in respect of acts done in an official capacity will remain.117 But the person formerly entitled to immunity may now be sued for acts done in a private capacity even though done at a time when that person was entitled to absolute immunity. The immunity is merely a procedural bar, not a justification of what is otherwise unlawful. Once that bar is lifted an action in respect of anything done by the official concerned can be brought [page 253] at any time before the cause of action is statute-barred.118 Conversely, an action begun against a person who did not then have immunity must be stayed as soon as immunity is conferred.119 10.64 The Minister of Foreign Affairs and Trade may give a certificate that a particular person is, or was at any time or in respect of any period, entitled to immunity. Such a certificate shall be evidence of the facts certified.120 Since the relevant provisions do not state that the certificate is conclusive evidence of the facts stated therein, it would be open for a party to bring evidence to contradict the certificate.121 At common law such a certificate would be conclusive.122

Waiver of immunity 10.65 The court must stay an action as soon as it perceives that a diplomat, consular official or other person entitled to immunity has been impleaded unless it is satisfied that the transaction concerned is excluded from immunity.123 The diplomatic and consular conventions both provide that the immunity of diplomatic and consular officials may be waived by the sending state.124 In the case of international organisations, the regulation setting out the immunity of

such organisation and its officials may also provide for the waiver of immunity by that organisation or official.125 10.66 The implementing legislation provides that a waiver by the head of the diplomatic mission of a foreign country in respect of a diplomatic or consular official of that country shall be deemed to be a waiver by that country.126 Such a waiver must always be express.127 A subordinate cannot waive his or her own immunity, and any proceedings commenced against the subordinate and any verdict obtained in the absence of a waiver by the head of mission must be set aside.128 A head of mission must also waive his or her own immunity in an official capacity; it is not enough to plead as a litigant that immunity is waived.129 10.67 The initiation of proceedings by an official in a case where immunity might otherwise apply precludes that person from invoking immunity in respect of any counterclaim directly connected with the principal claim.130 But the waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall [page 254] not be held to be a waiver of immunity in respect of the execution of the judgment, for which a separate waiver will be necessary.131

Act of State and Non-Justiciability132 10.68 Closely linked with state immunity,133 but distinct from it, is the rule that in certain circumstances Australian (and other common law) courts will not assume jurisdiction to determine the legality of governmental acts. The effect of the plea of ‘act of state’ is to prevent the court from passing judgment on the legality of the act.134 The immunity exists in relation to the act done and does not depend upon the character of the defendant.135 In Yukos SARL v OJSC Rosneft Oil Company,136 the English Court of Appeal observed that ‘the various formulations of the paradigm principle are apparently wide, and prevent adjudication on the validity, legality, lawfulness, acceptability or motives of state actors’. Importantly, however, the Court went on to point out that, notwithstanding the width with which the doctrine was frequently expressed, it had its limitations ‘founded in the very language of the doctrine and its

rationale’. In Australia, an additional and important limitation is that the act-ofstate doctrine can have no operation when it is alleged that Commonwealth officers have acted beyond the bounds of their authority under Commonwealth law.137 10.69 ‘Act of state’ can be pleaded as a bar to jurisdiction by any person who acted outside Australia under the orders of the Crown or whose action was authorised by it or subsequently ratified by it. In Buron v Denman138 Captain Denman RN had seized the plaintiff’s slave ship flying the Spanish flag in ‘a savage part of Africa’ although the slave trade was not then illegal by the law of nations or the law of Spain. When sued in England for what was undoubtedly an act of trespass, he successfully pleaded that upon the subsequent ratification of his act by the British Government, his act became an act of state beyond the jurisdiction of municipal courts. 10.70 The second and more common category of ‘act of state’ is associated in Australia with the statement in the Spycatcher case that ‘in general, courts will not [page 255] adjudicate upon the validity of acts and transactions of a foreign sovereign State within that sovereign’s own territory’.139 This restraint, often expressed in terms of non-justiciability, is founded primarily on a view as to the comity of nations rather than on concern about giving offence to the foreign sovereign.140 This also explains the willingness to intervene if the foreign sovereign purports to act outside its territory, or if it acts within it in a penal or discriminatory way: under the comity of nations, each sovereign says to the other: ‘We will respect your territorial sovereignty, but there can be no offence if we do not recognise your extra-territorial or exorbitant acts’.141 The statement in Spycatcher has recently been subjected to an important qualification by the High Court in Moti v The Queen142 in which the majority said that ‘neither what was said in the Spycatcher case nor the decision of Fuller CJ in Underhill143 should be understood as establishing as a general and universally applicable rule that Australian courts may not be required (or do not have or may not exercise jurisdiction) to form a view about the lawfulness of conduct that occurred outside Australia by reference to foreign law’.144 Mr Moti had been brought to Australia from the Solomon Islands without his consent. He was subsequently

presented for trial on seven counts under the Commonwealth Crimes Act. He sought a permanent stay of proceedings on the basis of abuse of process arising from and related to the circumstances of his removal from the Solomon Islands, including in relation to the role played by Australian officials. At first instance, the trial judge, citing Spycatcher, said that it was not for an Australian court to express an opinion on decisions made by the Solomon Islands Government. The High Court disagreed in the context of the case before it, stating that ‘there will be occasions when to decide the issues that must be determined in a matter an Australian court must state its conclusions about the legality of the conduct of a foreign government or persons through whom such a government has acted’145 and endorsing the views of FA Mann that ‘the Courts are free to consider and pronounce an opinion upon the exercises of sovereign power by a foreign Government, if the consideration of those acts of a foreign Government only constitutes a preliminary to the decision of a question … which in itself is subject to the competency of the court of law’.146 10.71 There are certain limitations on the circumstances in which act of state can be pleaded. It cannot be pleaded in respect of any act done on Australian soil (including an external territory) whether against an Australian citizen or an alien.147 [page 256] It can be pleaded in respect of an act done by or on behalf of a foreign state on its own territory whether against its own or foreign (including Australian) nationals.148 It is not certain whether it can be pleaded in respect of an act done by or under the instructions of Australian authorities against an Australian citizen on foreign soil. In Nissan v Attorney-General149 Lord Reid took the view that a citizen of the United Kingdom and colonies could never be deprived of the legal right of redress by any assertion of the Crown that the act complained of was an act of state. The other Law Lords, however, did not find it necessary to decide the issue and expressed serious reservations about assenting to such a sweeping proposition. Following the decision of the High Court in Nolan v Minister for Immigration and Ethnic Affairs150 earlier decisions which spoke of ‘British subjects’ in the context of a British empire, must now be reinterpreted in an Australian context as relating to the Australian Government, Australian citizens and Australian territory.

10.72 Not every governmental act qualifies as an act of state. Whether an act amounts to an act of state depends, it appears, on the nature of the act and the intention with which it was done.151 An act of war, of annexation of foreign territory or an act done in the implementation of an international treaty will qualify.152 But the requisitioning of a Cyprus hotel by members of a United Kingdom peace-keeping force operating in Cyprus at the request of the government of that country was held in Nissan v Attorney-General not to amount to an act of state in the absence of any evidence that the local United Kingdom commander intended that the taking of the hotel should be an act of state; that is, that it should be seized without any intention to pay compensation, or that the taking was a necessary consequence of British treaty obligations in relation to Cyprus.153 10.73 The question remains whether these cases are but examples of a wider principle which prevents municipal courts from dealing with sensitive issues in international relations. In Buttes Gas and Oil v Hammer154 the House of Lords had to consider whether the defence of act of state was available in respect of acts done by a foreign sovereign outside his territory. At issue was the validity at international law of a proclamation whereby the ruler of Sharjah, a sheikdom in the Persian Gulf, had purported to extend his territory over an area in which oil had been found. This area was disputed by the ruler of a neighbouring sheikdom and by Iran. The United Kingdom, which at the time acted as the protecting power over the two sheikdoms, had militarily intervened to settle the dispute resulting in negotiations in which all four countries had taken part. The legality of that settlement was now in issue. [page 257] 10.74 The House of Lords held that English courts should decline to exercise jurisdiction on the ground that ‘there are … no judicial or manageable standards by which to judge these issues’, which involved the actions of four sovereign states and their legality under public international law.155 It can be said that this states a new and wider principle: that English courts will regard as nonjusticiable issues arising out of the transactions, peaceable or otherwise, between sovereign states including the United Kingdom itself. 10.75 In Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia,156 the Full Court of the Federal Court applied Buttes Gas in the

context of a private law claim which it was held would necessarily involve an adjudication on an act, or the validity, meaning and effect of transactions of, a foreign state or an adjudication of territorial boundaries in relation to parts of the Timor Sea. The court emphasised the non-justiciable nature of the claim or, at least, of issues that were required to be determined for the purposes of the claim, noting, inter alia, that there was potential for adjudication of matters of diplomatic relations for the government, especially in light of the contentious nature of the underlying subject matter. Part of the claim would have involved the Federal Court in determining the validity of a grant of a mining concession by the Portuguese Government.157 10.76 A comprehensive review of English and Australian cases in relation to the act-of-state doctrine and notions of non-justiciability of certain questions involving foreign or international relations up until 2003 is contained in an appendix to the judgment of Beaumont J in Petrotimor.158 Questions of nonjusticiability when raised in the context of Australian proceedings involving the exercise of federal jurisdiction may be intertwined with questions of constitutional law, most notably the requirement that there be a ‘matter’ within the meaning of Chapter III of the Commonwealth Constitution. This point was emphasised by Gummow J in Re Ditfort; ex parte Deputy Commissioner of Taxation.159 10.77 In Gamogab v Akiba,160 the Full Court of the Federal Court split in its consideration of whether the non-justiciability principle warranted a decision of French J (as he then was) to decline to join a respondent to proceedings in the exercise of his discretion. In that case, there was a perceived risk that the joinder would generate debates in the proceedings between Papua New Guinea village communities as to their respective interests in the Torres Region Sea Claims Area which ‘were matters best left to the courts of Papua New Guinea or to its executive government to resolve by agreement with the Australian Government under the [Torres Strait] Treaty’. The majority reversed this decision on the footing that, [page 258] although there had been an exchange of diplomatic notes between Australia and Papua New Guinea to formalise the full list of villages to benefit from the free movement provisions of the treaty, the appellant did not need to make any

argument based upon the treaty or the exchange of diplomatic notes for the purposes of the case, and that the docket and trial judge could control the proceedings to prevent any irrelevant or inappropriate use being made of the material. The majority was clearly influenced by the fact that the Commonwealth, itself a party to the proceedings, accepted the appropriateness of that course. Notwithstanding this, Kiefel J, in dissent, took a more expansive view of the doctrine and lacked confidence that the procedure proposed by the majority would foreclose any risk of diplomatic embarrassment. Her Honour reasoned that ‘negotiations and agreements between Australia and another country are not to be the subject of judicial determination for the reason that they might cause embarrassment and affect relations between the countries’. She described the risk of embarrassment as ‘real’. 10.78 In JH Rayner Ltd v Dept of Trade,161 the plaintiffs who were creditors of the International Tin Council, a body created by treaty between 23 sovereign states, including the United Kingdom and Australia, sought to recover the amount of the debt on behalf of that council from the individual member states. That treaty was an ‘unincorporated treaty,’ that is, a treaty not made part of the domestic law of the United Kingdom by implementing legislation but nevertheless binding on that state in international law. The House of Lords denied the plaintiffs recovery on two principal grounds: the first was that the plaintiffs were seeking to enforce by their action rights and duties arising solely under public international law which is not justiciable in a municipal court. The second was that the transactions which the member states engaged in through the council ‘were transactions of sovereign States with and within the international organisation which they have created and are not to be subjected to the processes of our courts in order to determine what liabilities arising out of them attached to the members in favour of the ITC’.162 10.79 In Kuwait Airways Corp v Iraqi Airways Co (No 3),163 the English Court of Appeal not only reiterated the existence of a doctrine of non-justiciability, but also stated that it is separate from the act-of-state doctrine.164 The court said that the non-justiciability inquiry is a fact-sensitive one, but guidance can be found by asking whether there are ‘judicial or manageable standards’ by which to resolve the dispute, whether the court would be in a ‘judicial no-man’s land’, or perhaps whether there would be embarrassment in the forum’s foreign relations, at least where that possibility is brought to the court’s attention by the executive.165 For example, sensitive issues involving diplomacy between states, or uncertain or controversial issues of international law are situations calling for judicial restraint,166 even though the circumstances might not fall within the ‘act-

of-state’ doctrine. In essence, the principle of non-justiciability seeks to distinguish disputes involving sovereign [page 259] authority, which can only be resolved on a state-to-state level, from disputes that can be resolved by judicial means.167 10.80 On appeal, the House of Lords fashioned an exception to the nonjusticiability principle (which was otherwise confirmed). Lord Nicholls said:168 In appropriate circumstances it is legitimate for an English court to have regard to the content of international law deciding whether to recognise a foreign law … Nor does the ‘non-justiciable’ principle mean that the judiciary must shut their eyes to a breach of an established principle of international law committed by one state against another when the breach is plain and, indeed, acknowledged. In such a case the adjudication problems confronting the English court in the Buttes litigation do not arise. The standard being applied by the court is clear and manageable, and the outcome is not in doubt.

In the same case, Lord Steyn rejected a submission that the Buttes Gas principle amounted to an absolute rule that courts in England were not to adjudicate upon acts done abroad by virtue of sovereign authority, describing it as ‘too austere and unworkable an interpretation’ of that case.169 Lord Hope located the exception as one applying if the foreign legislation in question ‘constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise the legislation as a law at all’. He referred to this as the ‘human rights exception’.170 The qualification to the Buttes Gas principle was accepted by the Full Court of the Federal Court of Australia in Petrotimor Companhia de Petroleos SARL v Commonwealth,171 and in Habib v Commonwealth172 where it was held that the common law has evolved such that the act-of-state doctrine does not exclude judicial determination of a claim involving alleged acts of torture, serious violations of international law and conduct made illegal by domestic law having extra-territorial effect. 10.81 Another exception or limitation on the sphere of operation of the doctrine, recently expressly recognised in England, is that the act-of-state doctrine does not prevent an investigation of or adjudication upon the conduct of the judiciary of a foreign state, whether that conduct lies in the past, or in the future, and whether or not its conduct in the past is relied upon as the foundation for an assessment of the risk as to its conduct in the future.173 Put succinctly, judicial acts are not acts of state for the purpose of the act-of-state doctrine.174

Thus the doctrine will not be able to be raised as a defence to challenges in an English or Australian court to the propriety of a foreign court’s decision or as to whether the foreign court or the foreign court system is corrupt or lacking in independence (although comity will still require caution and evidence of sufficient cogency in order for any such challenge to succeed).175 [page 260] 10.82 In Hicks v Ruddock,176 a case involving an application for judicial review of a decision by the then Commonwealth Attorney-General not to request the release and return to Australia of Mr Hicks from Guantanamo Bay, it was contended on behalf of the Attorney-General that the act-of-state doctrine provided an insuperable barrier to the claim because it would necessarily involve an inquiry into the lawfulness of Mr Hicks’ detention in the United States. Mr Hicks countered that his case fell within the exception or qualification to the Buttes Gas principle identified in Kuwait Airways on the footing that his detention without lawful trial was in clear breach of public international law. Tamberlin J refused to enter summary judgment on the Attorney-General’s application, holding, albeit on an interlocutory basis, that neither the act-of-state doctrine nor the principle of non-justiciability would justify that course. 10.83 Non-justiciability, to the extent that it exists as a free-standing principle, should be confined to transactions of a sovereign character and not extend to merely commercial transactions between states,177 or otherwise involving states.178 Nor does the act-of-state doctrine operate as an impediment to an action for the infringement of foreign intellectual property rights, even if the validity of a grant (and therefore a decision of a foreign governmental official) is in issue.179 10.84 Insofar as the act-of-state doctrine rests in part on notions of comity, the decision of the Full Court of the Federal Court in Federal Treasury Enterprise Sojuzplodoimport v Spirits International NV180 should be noted. In that case, international comity was invoked to justify the decision not to subject a party, closely related or associated with the Russian Federation, to provide discovery in respect of Australian proceedings. This case appears to stand for the principle that, where a foreign sovereign state, directly or indirectly, is involved in commercial litigation, somewhat amorphous notions of international judicial comity have a role to play insofar as they should at least be taken into account

when exercising judicial power, and in particular, when subjecting a foreign state or emanation of a foreign state to the compulsory processes of the court. Although special leave to appeal was refused in this case, the decision is difficult to justify as a matter of principle. _________________________ 1.

The Porto Alexandre [1920] P 30; United States v Republic of China [1950] QWN 5.

2.

[1983] 1 AC 244.

3.

Section 18(2) of the Act dealing with the arrest of surrogate ships came into operation on the commencement of the Admiralty Act 1988 (Cth) on 1 January 1989.

4.

This Act was preceded by Australian Law Reform Commission Report No 24, entitled ‘Foreign State Immunity’ to which reference may be had in the interpretation of the Act. For the background to, and an overview of, the Act, see PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 290 ALR 681, [2012] HCA 33.

5.

Foreign States Immunities Act 1985 (Cth) s 7(1). See Australian Federation of Islamic Councils Inc v Westpac Banking Corp (1988) 17 NSWLR 623 at 629 per Cole J. In the case of contracts, the relevant date is the date the contract was entered into, not the date of breach: Reid v Republic of Nauru [1993] 1 VR 251 at 256–7 per Vincent J. In Barnes v Ministry of Defence (United Kingdom) (1997) 14 NSWCCR 450, the New South Wales Dust Diseases Tribunal held that the Act did not apply to a case where the alleged acts of negligence of the foreign sovereign took place before the Act came into force but the plaintiff’s injury (contraction of mesothelioma) occurred after that date.

6.

Beasley v State Government Insurance Commission (SA) (1988) 92 FLR 257; Reid v Republic of Nauru [1993] 1 VR 251. Compare Barnes v Ministry of Defence (United Kingdom) (1997) 14 NSWCCR 450, where the New South Wales Dust Diseases Tribunal appeared to take the view that the two alternatives open to it were application of the Act or complete immunity for the foreign sovereign.

7.

PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 290 ALR 681 at [17].

8.

Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270 at [18]; PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 290 ALR 681 at [19].

9.

PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 290 ALR 681 at [17].

10. See definition of ‘foreign State’ in Foreign States Immunities Act 1985 (Cth) s 3(1). 11. See note 10 above s 3(3)(a). Despite the interesting discussion by Yeldham J in Beasley v State Government Insurance Commission (SA) (1988) 92 FLR 257 at 261–2, it is clear that a sister state in Australia cannot claim to be entitled to foreign sovereign immunity either at common law or under the Act. 12. [1989] Ch 72. The point was left open on appeal in the House of Lords: JH Rayner (Mincing Lane) Ltd v Dept of Trade and Industry [1990] 2 AC 418 at 516 per Lord Oliver. 13. Foreign States Immunities Act 1985 (Cth) s 3(3)(b). See, for example, in relation to the President of the People’s Republic of China, Zhang v Zemin [2008] NSWSC 1296, (2010) 79 NSWLR 513, and the Amir of Qatar: Thor Shipping A/S v Ship ‘Al Duhail’ (2008) 252 ALR 20. 14. Foreign States Immunities Act 1985 (Cth) s 36(1). This Act effectively adopts the Vienna Convention on Diplomatic Relations: see Thor Shipping A/S v Ship ‘Al Duhail’ (2008) 252 ALR 20 at 38. See also 10.43–10.51 below.

15. See 10.30 below. 16. (2008) 252 ALR 20 at 39. 17. Foreign States Immunities Act 1985 (Cth) s 3(3)(c). 18. Krajina v Tass Agency [1949] 2 All ER 274. 19. Jones v Ministry of Interior of Kingdom of Saudi Arabia [2007] 1 AC 270 at [10], [66]; Zhang v Zemin (2010) 79 NSWLR 513 at [75]–[77]. 20. See s 40(1)(c) of the Act, and note the rejection of an argument that individuals other than the currently serving heads of state could not claim immunity in Zhang v Zemin (2010) 79 NSWLR 513 at [65]–[71]. 21. See note 20. 22. Duff Development Co Ltd v Government of Kelantan [1924] AC 797. 23. (2008) 220 FLR 271. 24. See also Zhang v Zemin [2008] NSWSC 1296 in which the terms of the certificate are relevantly reproduced. 25. Anglo-Czechoslovak & Prague Credit Bank v Janssen [1943] VLR 185. The current policy of the United Kingdom and Australian Governments to recognise states rather than governments may make the question of who represents a state difficult to determine. There is no obligation to determine that a state has a government: Republic of Somalia v Woodhouse Drake & Carey (Suisse) SA [1993] QB 54. 26. Foreign States Immunities Act 1985 (Cth) s 3(1) definition of ‘separate entity’. 27. Czarnikow Ltd v Rolimpex [1979] AC 351. 28. Trendtex Trading Corp v Central Bank of Nigeria [1977] QB 529. 29. PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2011) 192 FCR 393. The Full Court’s conclusion that Garuda was a ‘separate entity’ for the purposes of the Act was not challenged: The High Court: see (2012) 290 ALR 681 at [31]. 30. Grunfeld v USA [1968] 3 NSWR 36. 31. Foreign States Immunities Act 1985 (Cth) s 22. 32. Foreign States Immunities Act 1985 (Cth) s 27; and see Zhang v Zemin [2008] NSWSC 1296 at [18]. 33. See note 32 above, s 38; and see Pan v Bow (2008) 220 FLR 271. 34. Pan v Bow (2008) 220 FLR 271 at 275. 35. Yan Xie v Chen Shaoji [2008] NSWSC 224; Pan v Bow (2008) 220 FLR 271; Zhang v Zemin [2008] NSWSC 1296. 36. PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 290 ALR 681 at [22]. Cf Zhang v Zemin (2010) 79 NSWLR 513 at [22], [31], [34], ]36], [157], [174]; Federation of Islamic Councils Inc v Westpac Banking Corp (1988) 17 NSWLR 623 at 623. These last two decisions may in this respect be doubted in light of Garuda. 37. Holland v Lampen-Wolfe [2000] 1 WLR 1573. 38. Wright v Cantrell (1943) 44 SR (NSW) 45. 39. Holland v Lampen-Wolfe [2000] 3 All ER 833 (HL) at 846 per Lord Millett. 40. This is in contrast to the position in the United Kingdom where s 16(2) of the State Immunity Act 1978 (United Kingdom) excludes visiting forces from the operation of the Act with the result that the common law continues to apply. 41. [1952] AC 582.

42. Rahimtoola v Nizam of Hyderabad [1958] AC 379. 43. Foreign States Immunities Act 1985 (Cth) s 10(8). 44. Juan Ismael & Co Inc v Indonesian Government [1955] AC 72 at 88–90, followed in Australian Federation of Islamic Councils Inc v Westpac Banking Corp (1988) 17 NSWLR 623. 45. Australian Federation of Islamic Councils Inc v Westpac Banking Corp (1988) 17 NSWLR 623. 46. (2005) 12 VR 340. 47. JH Rayner (Mincing Lane) Ltd v Dept of Trade and Industry [1989] Ch 72 at 193–4 per Kerr LJ. 48. [2007] 1 AC 270 at [33]. 49. Foreign States Immunities Act 1985 (Cth) s 10(1). 50. See note 49 above, s 10(6), (7) and (8). See, by analogy, the cases concerning the waiver of jurisdiction or arbitration agreements referred to in BHPB Freight Pty Limited v Cosco Oceania Chartering Pty Limited (2008) 168 FCR 169 at 184–5. 51. See note 49 above, s 10(9). 52. See note 49, s 10(2) and (3). See, for example, Peniche v Hannan [1999] FCA 915, BC9904100 (submission by Mexico subject to the exclusion of any remedy or relief being granted against it). See, for example, Vitascope Pty Limited v Republic of Nauru (Giles CJ, Comm Div, SC (NSW), 29 August 1997, (unreported, BC9704098), in which a contract entered into between the parties in relation to access to public sites in Nauru for the purposes of making a documentary film provided, inter alia, that: ‘This contract shall be covered by the law of New South Wales and any disputes which may result in litigation shall be heard by the courts of New South Wales. For the purposes of any litigation only, the licensor [the Republic] waives its right of sovereign immunity’. This clause did not, however, have the effect of waiving the provisions of the Foreign States Immunities Act 1985 (Cth) in respect of service of proceedings on a foreign sovereign. 53. See note 49 above, s 10(2). 54. See A Co Ltd v Republic of X [1990] 2 Lloyd’s Rep 520. 55. Foreign States Immunities Act 1985 (Cth) s 17. 56. [2013] NSWSC 12. 57. See note 55, s 11(2). An important exception to this departure may arise in circumstances where the commercial transaction gives rise to a claim, whether in tort, contract or restitution, which is governed by the law of the foreign state. Such a foreign law may itself provide an immunity, and at least if that law be characterised as substantive in its sphere of operation, if pleaded, it will be given effect by an Australian court as part of the choice of law process: Garsec Pty Ltd v His Majesty The Sultan of Brunei (2008) 250 ALR 682. 58. [2013] QCA 129. 59. Australian Federation of Islamic Councils Inc v Westpac Banking Corp (1988) 17 NSWLR 623. Contrast the much narrower provisions of the State Immunity Act 1978 (United Kingdom) s 3(3) discussed by Lord Diplock in Alcom Ltd v Republic of Colombia [1984] AC 580. 60. (2005) 12 VR 340 61. [2013] QCA 129 at [25]. 62. Foreign States Immunities Act 1985 (Cth) s 18(4). 63. (2012) 290 ALR 681. 64. See, for example, Robinson v Kuwait Liaison Office (1997) 145 ALR 68 at 77–8.

Brown v Lemeki and Papua New Guinea [1997] HREOCA 25; Johnston v Lemeki and Papua New 65. Guinea [1997] HREOCA 26; Rees v Lemeki and Papua New Guinea [1997] HREOCA 27. (Papua New Guinea held not immune from vicarious liability for sexual harassment by consular official entitled (probably) to immunity under the Consular Privileges and Immunities Act 1972 (Cth).) 66. Consular Privileges and Immunities Act 1972 (Cth) s 29(2). 67. See note 66 above, s 15. 68. See, for example, Barnes v Ministry of Defence (United Kingdom) (1997) 14 NSWCCR 450. 69. Consular Privileges and Immunities Act 1972 (Cth) s 14(1). 70. Westminster County Council v Islamic Republic of Iran [1986] 3 All ER 284. 71. Intpro Properties v Sauvel [1983] QB 1019 at 1032 per May LJ. 72. Foreign States Immunities Act 1985 (Cth) s 14(2). 73. It appears this does not include a corporate body created under international law, such as the International Tin Council: Maclaine Watson & Co Ltd v International Tin Council [1989] Ch 253 at 277 per Ralph Gibson LJ. 74. Foreign States Immunities Act 1985 (Cth) s 16. 75. See note 74 above, s 14(3)(a). 76. See Jones v Ministry of Interior of Kingdom of Saudi Arabia [2007] 1 AC 270 at [10], [66]; Zhang v Zemin [2008] NSWSC 1296 at [23]. 77. [2008] NSWSC 1296. 78. Foreign States Immunities Act 1985 (Cth) s 23. A general waiver of sovereign immunity coupled with a submission to jurisdiction does not impliedly amount to a waiver of the service requirements under the Foreign States Immunities Act: Vitascope Pty Limited v Republic of Nauru (Giles CJ, Comm Div, SC (NSW), 29 August 1997, unreported, BC9704098). 79. See note 78 above, s 24 (1). 80. Douglas v Republic of Nauru (2004) 187 FLR 221 at 225; and see Zhang v Zemin [2008] NSWSC 1296 at [3]. 81. Foreign States Immunities Act 1985 (Cth) s 24, and esp subs (5). 82. See note 81 above, s 25. See, for example, Buzzacott v Gray [1999] FCA 1525, BC9907149 at [7] (service by facsimile on the United Kingdom ineffective for non-compliance with requirements of Act); Yan Xie v Chen Shaoji [2008] NSWSC 224 (personal service on the defendant by handing him court documents after identifying him by name); Pan v Bow (2008) 220 FLR 271 (personal delivery of a copy of the Statement of Claim on the defendant at the Hyatt Hotel, Canberra). 83. See note 81 above, s 26. 84. Robinson v Kuwait Liaison Office (1997) 145 ALR 68. 85. Westminster County Council v Islamic Republic of Iran [1986] 3 All ER 284. 86. Foreign States Immunities Act 1985 (Cth) s 27; and see Westminster County Council v Islamic Republic of Iran [1986] 3 All ER 284; Yan Xie v Chen Shaoji [2008] NSWSC 224; Pan v Bow (2008) 220 FLR 271. 87. Douglas v Republic of Nauru (2004) 187 FLR 221 at 226–7. 88. Foreign States Immunities Act 1985 (Cth) s 29(1). 89. Including its political subdivisions, dependent or associated territories and central monetary authority: see note 88, s 35(1).

90. But not by way of proceedings in the nature of contempt: see note 88, s 34. To assist in enforcement the court may order the foreign state entity to disclose its assets within the jurisdiction and abroad: Maclaine Watson & Co Ltd v International Tin Council (No 2) [1989] Ch 286. 91. Foreign States Immunities Act 1985 (Cth) s 31. See A Co Ltd v Republic of X [1990] 2 Lloyd’s Rep 520. 92. See note 91 above, s 32(1). 93. Alcom Ltd v Republic of Colombia [1984] AC 580. 94. [1986] 3 All ER 284. 95. Foreign States Immunities Act 1985 (Cth) s 32(3)(b). 96. See note 95, s 32(2). 97. Foreign States Immunities Act 1985 (Cth) s 33. 98. See note 97 above, s 35. 99. R v Turnbull (1971) 17 FLR 438. 100. Radwan v Radwan [1973] Fam 24. 101. SR 80/1974. 102. Intpro Properties v Sauvel [1983] QB 1019 at 1033 per May LJ. 103. In the Marriage of De Andrade (1984) 19 Fam LR 271. 104. Fayed v Al-Tajir [1988] QB 712. 105. Shearson Lehman Bros Inc v Maclaine Watson & Co Ltd (No 2) [1988] 1 All ER 116. 106. As to when a child of a diplomat forms part of his or her household, see Re C (An Infant) [1959] Ch 363. 107. Diplomatic Privileges and Immunities Act 1967 (Cth) s 11(a). 108. See note 107 above. 109. Consular Privileges and Immunities Act 1972 (Cth) s 10. 110. See, for example, Brown v Lemeki and Papua New Guinea [1997] HREOCA 25; Johnston v Lemeki and Papua New Guinea [1997] HREOCA 26; Rees v Lemeki and Papua New Guinea [1997] HREOCA 27. (Papua New Guinea consular official held probably entitled to immunity from liability for sexual harassment of employees.) 111. Arab Monetary Fund v Hashim (No 3) [1991] 2 AC 114. 112. JH Rayner (Mincing Lane) Ltd v Dept of Trade and Industry [1989] Ch 253. 113. International Organisations (Privileges and Immunities) Act 1963 (Cth) s 6(1)(a)(i). 114. JH Rayner (Mincing Lane) Ltd v Dept of Trade and Industry [1989] Ch 253. 115. See, for example, Von Arnim v Federal Republic of Germany (1999) 107 A Crim R 529 and Von Arnim v Federal Republic of Germany [1999] FCA 1747, BC9908201, both concerned with the question whether the Director-General for Australia of the World Health Organization was entitled under the Act to immunity from extradition to Germany. 116. Diplomatic Convention Art 39(2); Consular Convention Art 53(3). 117. Diplomatic Convention Art 39(2); Consular Convention Art 53(4); International Organisations (Privileges and Immunities) Act 1963 (Cth) Sch/s 2, 3 and 5, Pt II. 118. Empson v Smith [1966] 1 QB 426.

119. Ghosh v D’Rozario [1963] 1 QB 106. 120. Diplomatic Privileges and Immunities Act 1967 (Cth) s 14; Consular Privileges and Immunities Act 1972 (Cth) s 12; International Organisations (Privileges and Immunities) Act 1963 (Cth). 121. Duff v R (1980) 28 ALR 663 at 695 per Brennan, McGregor and Lockhart JJ. 122. Engelke v Musmann [1928] AC 433. 123. Australian Federation of Islamic Councils Inc v Westpac Banking Corp (1988) 17 NSWLR 623. 124. Diplomatic Convention Art 32(1); Consular Convention Art 45(1). 125. International Organisations (Privileges and Immunities) Act (Cth) s 10. 126. Diplomatic Privileges and Immunities Act 1967 (Cth) s 7(2)(d); Consular Privileges and Immunities Act 1972 (Cth) s 5(2)(e). 127. Diplomatic Convention Art 32(2); Consular Convention Art 45(2). 128. R v Madan [1961] 2 QB 1. 129. Fayed v Al-Tajir [1988] QB 712. 130. Diplomatic Convention Art 32(3); Consular Convention Art 45(3). 131. Diplomatic Convention Art 32(4); Consular Convention Art 45(4). 132. See, generally, R Garnett,‘Foreign States and Australian Courts’ (2005) 29 MULR 704; M Alderton ‘The Act of State Doctrine: Questions of Validity and Abstention from Underhill to Habib’ (2011) 12 Melbourne Journal of International Law 1. 133. In Yukos Capital SARL v OJSC Rosneft Oil Company [2012] EWCA Civ 855 at [66], the English Court of Appeal described it as a form of immunity ratione materiae, closely connected with analogous doctrines of sovereign immunity. 134. Nissan v Attorney-General [1970] AC 179 at 237 per Lord Pearson. See, for example, Dagi v BHP Co Ltd (No 2) [1997] 1 VR 428 at 453. 135. R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (Amnesty International Intervening) (No 3) [2000] 1 AC 147 at 269 per Lord Millett, distinguishing immunity ratione personae, based on the status of the person doing the act, and immunity ratione materiae, based on the nature of the act done. 136. [2012] EWCA Civ 855 at [66]–[67] 137. Habib v Commonwealth (2010) 183 FCR 62 138. (1848) 2 Exch 167. 139. Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 40 per Mason CJ, Wilson, Deane, Dawson, Toohey and Gaudron JJ; R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [2000] 1 AC 61. For a suggestion that it may extend further, to certain extra-territorial or transnational acts, see Yukos Capital SARL v OJSC Rosneft Oil Company [2012] EWCA (Civ) 855 at [49]. 140. Kuwait Airways Corp v Iraqi Airways Co (No 3) [2001] 1 All ER (Comm) 557 at [318] per Henry, Brooke and Rix LJJ, citing Buck v Attorney-General [1965] Ch 745 at 770 per Diplock LJ. 141. See note 140 above. 142. (2011) 245 CLR 456. 143. Underhill v Hernandez (1897) 168 US 250 at 252. 144. (2011) 245 CLR 456 at [50].

145. See note 144 above, at [51]. 146. ‘The Sacrosanctity of the Foreign Act of State’, Studies in International Law, 1973, 420 pp 433–4. 147. Johnstone v Pedlar [1921] AC 262. 148. Carr v Francis Times & Co [1902] AC 176. 149. [1970] AC 179 at 213. 150. (1988) 163 CLR 178. 151. Lloyd Werft Bremerhaven GmbH v Owners of the ship Zoya Kosmodemyanskaya (Tamberlin J, FCA, 15 May 1997, BC9701974 at 30–2, unreported). 152. In Sadiqi v Commonwealth (No 2) (2009) 191 FCR 1 at [252]–[255], McKerracher J held that decisions by Nauru to grant visas, and impose conditions on them, were acts of state, being a central manifestation of Nauru’s sovereignty. 153. [1970] AC 179 at 238, 240 per Lord Pearce. 154. [1982] AC 888. 155. See note 154 above at 938 per Lord Wilberforce. 156. (2003) 126 FCR 354. 157. In Habib v Commonwealth (2010) 183 FCR 62 at [30], Perram J doubted the correctness of this decision insofar as it may have operated to prevent judicial scrutiny of the limits of Commonwealth legislative or executive authority. 158. (2003) 126 FCR 354 at 423. There have been a number of most important subsequent decisions including Moti v The Queen (2011) 245 CLR 456; AK Investment CJSC v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804 and Lucasfilms Ltd v Ainsworth [2012] 1 AC 208. 159. (1988) 19 FCR 347; see also Hicks v Ruddock (2007) 156 FCR 574 at 585–6. 160. (2007) 159 FCR 578. 161. [1990] 2 AC 418. 162. See note 161 above, at 519 per Lord Oliver. 163. [2001] 1 All ER (Comm) 557; [2001] 1 Lloyd’s Rep 161; affirmed [2002] 2 AC 883. 164. See note 163 above, at [265] per Henry, Brooke and Rix LJJ. 165. See note 163 above, at [319]. 166. See note 165 above. 167. See note 165 above. 168. Kuwait Airways Corporation v Iraqi Airways Company [2002] 2 AC 883 at 1080–81. 169. See note 168 above, at 1101. 170. See note 168 above, at 1108. 171. (2003) 126 FCR 354 at 369. 172. (2010) 183 FCR 62. 173. Yukos Capital SARL v OJSC Rosneft Oil Company [2012] EWCA Civ 855 at [86]. 174. See note 173 above, at [87]. 175. AK Investment CJSC v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804 at [101]; cf Mokbel v AttorneyGeneral for the Commonwealth of Australia [2007] FCA 1536.

176. (2007) 156 FCR 574 at 582–7. 177. Maclaine Watson & Co Ltd v International Tin Council [1989] Ch 253 at 285 per Kerr LJ (Nourse LJ agreeing; Ralph Gibson LJ at 278 dissenting). The issue was left open in the House of Lords: [1990] 2 AC 418 at 520 per Lord Oliver. 178. Korea National Insurance Corporation v Allianz Global Corporate and Specialty AG [2008] EWCA Civ 1355; Yukos Capital SARL v OJSC Rosneft Oil Company [2012] EWCA Civ 855 at [92]–[94]. 179. Lucasfilm Ltd v Ainsworth [2012] 1 AC 208 at [87]; cf Potter v Broken Hill Pty Co Ltd (1906) 3 CLR 479. 180. (2007) 157 FCR at 558.

[page 261]

Chapter 11

Evidence from and for Other Countries Introduction 11.1 Whenever there is litigation in Australia about a case with an international aspect, there is the possibility that some or all of the material evidence will not be in Australia. Witnesses or documents may be overseas, ostensibly beyond the reach of the powers of the Australian court. A party to Australian civil litigation can gain access to some relevant, non-privileged documents outside Australia through the ordinary processes of discovery and inspection of documents. Any party to Australian proceedings, whether based in Australia or overseas, must discover and subsequently make available for inspection any documents within its possession, custody or power, whether those documents are in Australia or elsewhere. If, however, the documents that the party wants to see are held by a non-party overseas, some other means of access to them must be found, because that non-party has not submitted to the jurisdiction of the Australian court. Similarly, non-party witnesses outside Australia are not subject to the court’s jurisdiction. 11.2 Australia acceded on 23 October 1992 to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970 (the Hague Evidence Convention). The Hague Evidence Convention was designed to streamline procedures for obtaining evidence from other countries. However, it is by no means a universal panacea, not least because it applies only between Australia and countries that have accepted Australia’s accession (if the other country acceded before Australia) or whose accession Australia has accepted (if Australia acceded before the other country).1 With a few possible exceptions considered in this chapter,

[page 262] it cannot be used to obtain documents from other countries and its procedures for obtaining the testimony of witnesses are fairly slow and cumbersome. Thus, parties to Australian civil litigation may attempt to have resort to domestic Australian methods of evidence collection, both in relation to documentary evidence and the testimony of witnesses. Of course, no legal difficulties arise if witnesses are willing to travel to Australia to give their testimony or if the holders of documents are willing to send them to Australia to be put into evidence. Thus, this chapter focuses on the means available for obtaining evidence from those unwilling or unable to attend trial or produce documents.

The Testimony of Witnesses Introduction 11.3 Several alternative means are available to take the testimony of witnesses who are unwilling or unable to attend trial in Australia. In some cases, a subpoena may be served on the witness compelling his or her attendance in court in Australia (11.4–11.13). The court may order that the witness’s testimony be taken before an Australian-appointed examiner in the foreign country in question (11.14–11.15). The court may send a letter of request to the judicial authorities in the country where the witness is to be found, requesting them to take the witness’s testimony (11.16–11.23). Alternatively, the court may take the witness’s testimony directly by video or audio link (11.24–11.34).

Compelling the attendance of the witness by subpoena 11.4 The normal procedure for obtaining oral testimony from a reluctant witness is to serve him or her with a subpoena to attend and give evidence. In the present context, the key question is whether such a subpoena can validly be served on a witness outside Australia.

Under the Hague Service Convention 11.5 Australia became party to the Convention on the Service Abroad of

Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (the Hague Service Convention) in 2010; the convention entered into force for Australia on 1 November 2010. The Hague Service Convention applies to the service of judicial or extrajudicial documents in other convention countries.2 It requires Contracting States to designate a Central Authority that receives requests for service coming from other convention countries.3 The Central Authority is required to serve the document, or to arrange to have it served by an appropriate agency, either by the methods prescribed by its own law, or by a particular method requested by the applicant, unless that method is incompatible with the receiving country’s law.4 [page 263] If the request for service complies with the terms of the convention, the receiving country may not refuse to comply unless it deems that compliance would infringe its sovereignty or security.5 It may not refuse to comply solely because it claims exclusive jurisdiction over the subject-matter of the action or that its internal law would not permit an action of that kind.6 At the time of writing,7 there were 68 Contracting States party to the convention.8 In each Australian jurisdiction, including the Federal Court and the Family Court of Australia (but not the High Court in its original jurisdiction), special provision has been made for service of judicial documents outside Australia under the Hague Service Convention.9 Where service of a judicial document is to be effected pursuant to the convention, application must be made to the court registrar, accompanied by a draft request for service abroad, the document to be served, a summary of the document to be served, and where required by the Central Authority of the receiving country, a translation into the official language or one of the official languages of that country of both the document and the summary.10 If the court registrar is satisfied that the application complies with the relevant requirements, he or she must sign the request for service abroad and must forward two copies of the relevant documents directly to the Central Authority in the receiving country.11 Although the phrase ‘judicial document’ is not defined in the Hague Service Convention, it has been held to include a subpoena,12 and a handbook on the convention published by the Hague Conference on Private International Law includes ‘summons for witnesses and expert witnesses abroad, and requests for

[page 264] discovery of evidence sent to the parties’ as examples of ‘judicial documents’.13 Thus, the Hague Service Convention procedures can be used to serve a subpoena on a witness in a convention country, unless the receiving country regards service of a subpoena as an infringement of its sovereignty.14 Although many countries, particularly those with civil law systems, have enacted ‘blocking statutes’ designed to thwart service within their national territory of judicial documents from other countries,15 those statutes are generally directed at attempts to gain direct access to documents held within the country, rather than attempts to gather the testimony from witnesses with the assistance of local officials, as is the case under the Hague Service Convention. Article 5 of the Hague Service Convention provides that the Central Authority shall serve the judicial document ‘by a method prescribed by its internal law’, unless the applicant requests service by a particular method. Nowhere does the convention expressly state that the receiving country must take action to compel compliance if service has been properly effected. That is consistent with the idea that the convention is simply concerned with facilitating service. It might perhaps be argued that the obligation to take steps to compel compliance is implicit in the idea that service is effected in accordance with the ‘internal law’ of the receiving country. At the very least, a refusal to comply with a subpoena properly served via the Hague Service Convention would amount to contempt of court in Australia. In contrast, the method of taking evidence from witnesses in foreign countries established by the Hague Evidence Convention does specifically provide for compulsion by the receiving country; see 11.17. 11.6 Article 10(a) of the Hague Service Convention provides that nothing in the convention shall interfere with the freedom to send judicial documents ‘by postal channels directly to persons abroad’, provided the country of destination does not object. Thus, it is possible to bypass the Central Authority mechanism, and simply to mail judicial documents to recipients in convention countries that have not objected to the operation of Art 10(a) of the convention. However, almost half of the 68 countries that are party to the convention have objected to the operation of Art 10(a).16 Several others, including Australia, have expressed qualified objection, in that they insist that service be by some form of registered mail, so as to enable acknowledgment of receipt.17 Some countries, including France, Japan, the United Kingdom and the United States, have made no objection to the operation of Art 10(a).18

[page 265] Article 10(a) refers to the freedom to ‘send’ judicial documents by postal channels. In contrast, Arts 10(b) and (c) refer to the freedom to ‘serve’ judicial documents by alternative means (ie, via judicial officers of the receiving state). There has been much litigation about the effect of Art 10(a) in the United States, which has been party to the Hague Service Convention since 1969. The view of the majority of American courts is that the difference in language between Art 10(a) and Arts 10(b) and (c) means that Art 10(a) does not authorise service by postal channels, but merely the sending of routine documents once litigation has begun.19 This view is also reflected in the declaration made by Japan, which does not object to the sending of judicial documents via postal channels, but observes that sending by such a method does not necessarily constitute valid service in Japan.20 Other American courts hold that judicial documents can be served by mail under Art 10(a).21 It should also be noted that the handbook published by the Hague Conference on Private International Law suggests that Art 10(a) authorises service by mail.22 Even if sending by mail is held by Australian courts to constitute good service, which seems at least questionable, there remains the problem that, in practical terms, it may only be effective against a witness who is willing to comply with the subpoena, as the judicial authorities of the receiving country would have played no part in the service of process on the witness. Refusal by the witness to comply with the subpoena would be contempt of the relevant Australian court if the subpoena was effectively served by mail, but there would be no means of compelling compliance in the country where the subpoena was received. 11.7 It has been held that the Hague Service Convention procedures are facultative, not mandatory, at least in relation to judicial documents such as subpoenas.23 If that is right, recourse may still be had to the ordinary procedures for service of subpoenas out of the jurisdiction, if the rules of the relevant court so permit. Those procedures are the only means available if the witness is in a country that is not party to the Hague Service Convention. They are considered immediately below. [page 266]

Service of subpoenas other than under the Hague Service Convention 11.8 In the Australian Capital Territory, New South Wales, Queensland and Western Australia, the rules permit a party to serve a document other than originating process outside Australia with leave of the court or (in the Australian Capital Territory and New South Wales) if the court subsequently confirms service.24 In Victoria, the equivalent rule makes no mention of leave of the court before service is made in countries that are not party to the Hague Service Convention,25 but it has been held that leave is required before service can be made.26 In Arhill Pty Ltd v General Terminal Co Pty Ltd,27 Rogers CJ Comm D of the Supreme Court of New South Wales held that a rule in this form authorises a court to give leave to serve a subpoena outside Australia but because an order made pursuant to it could infringe the sovereignty of another country, the principles of international comity require that an order should not be made authorising service on a foreigner or foreign entity in a foreign country.28 In Stemcor (A/asia) Pty Ltd v Oceanwave Line SA,29 Allsop J of the Federal Court held that leave should be given ‘only in the most exceptional circumstances’ because of the inability of the Australian court to enforce compliance, and in Schneider v Caesarstone Australia Pty Ltd,30 Davies J of the Supreme Court of Victoria held that: ‘The Court should be reluctant to give leave to allow the service of a subpoena that would require a person to attend court in Australia with sanctions applying for non-attendance, in circumstances where the Court is unable to enforce compliance’. In contrast, in Caswell v Sony/ ATV Music Publishing (Australia) Pty Ltd,31 Hallen AsJ of the Supreme Court of New South Wales gave leave for service outside of Australia of a subpoena requiring the production of documents, while noting that the court should be careful in exercising the jurisdiction to confirm service of a subpoena, with any doubt to be resolved in favour of the recipient outside Australia.32 Hallen AsJ noted that in ‘a highly integrated world economy’, in which both parties to the litigation ‘operate[d] in a global economy’, the concerns about comity that informed the view adopted in Arhill and Stemcor ‘may have less weight than [they] did in the past’.33 Nevertheless, in Australian Competition and Consumer Commission v Air New Zealand Ltd (No 10),34 after citing both Arhill and Caswell, Perram J of the Federal Court observed that the exercise of any jurisdiction to grant leave to serve a subpoena out of the jurisdiction ‘would be, at the very least, unusual’.

[page 267] It remains an open question whether the court should exercise the same kind of restraint when asked to authorise service on an Australian in a foreign country.35 11.9 In the Federal Court and the Northern Territory, the rules make provision for service with leave outside of Australia of documents other than originating process under the Hague Evidence Convention36 (or other convention dealing with legal proceedings in civil matters, such as a bilateral convention) or the law of the foreign country in question, but not otherwise.37 Similarly, in Tasmania, the rules make provision for service under the Hague Evidence Convention (or other convention dealing with legal proceedings in civil matters) or in a country specified by the Attorney-General in an instrument filed in the proceeding, but not otherwise.38 Because no general provision is made for service of documents other than originating process outside Australia, and in the absence of any inherent power to make such an order, the relevant courts would appear to have only limited jurisdiction to give leave for service of a subpoena in countries not party to the Hague Service Convention. 11.10 In South Australia, the Supreme Court Civil Rules 2006 simply provide that the court may give any direction as to service outside Australia in countries that are not party to the Hague Service Convention (other than service of originating process) ‘that may be appropriate to avoid conflict with the law of the country in which service is to be effected’.39 This at least impliedly accepts that the court has jurisdiction to give leave for service outside Australia of documents other than originating process, although it seems that the same kind of caution should be displayed in the exercise of that jurisdiction as in the jurisdictions considered in 11.8. 11.11 In summary, it can be said that there is very little scope for attempting to compel a witness outside Australia to appear and give evidence in Australia by serving him or her with an Australian subpoena. The Hague Service Convention procedures now provide the most effective means of serving an Australian subpoena on a witness in another convention country.

Subpoenas: New Zealand 11.12 Part 2 of the Evidence and Procedure (New Zealand) Act 1994 (Cth) makes provision for the service of Australian subpoenas in New Zealand with

leave of the relevant Australian court. The Act does not apply to criminal proceedings or [page 268] excluded family proceedings.40 The Federal Court41 and superior and inferior courts in every Australian jurisdiction (including Norfolk Island) except those in Victoria42 are authorised to give leave to serve a subpoena in New Zealand.43 11.13 A witness in New Zealand served with an Australian subpoena is required by New Zealand law to comply with that subpoena.44 If the witness refuses to obey a subpoena validly issued by an Australian court, he or she may be compelled to do so. The High Court of New Zealand may issue a warrant for the arrest of the witness if it receives from the relevant Australian court a certificate stating that the witness has failed to comply with the subpoena, and may on appearance of the witness before the court impose a fine not exceeding NZ$10,000 unless the court is satisfied that the failure to comply with the subpoena should be excused.45

Evidence on commission before Australian-appointed examiners abroad 11.14 In all Australian jurisdictions, the court may order that a person be examined on oath or affirmation outside Australia before trial, either by a judge of the court, an officer of the court or some other person appointed by the court for that purpose. The Foreign Evidence Act 1994 (Cth) s 7(1)(a), (b) authorises ‘superior courts’ to make such orders ‘if it appears in the interests of justice to do so’. For these purposes, ‘superior courts’ are the Federal Court, the High Court, the Family Court of Australia, state Supreme Courts when exercising federal jurisdiction, and the Supreme Courts of the Australian Capital Territory and the Northern Territory.46 When state and territory Supreme Courts exercise nonfederal jurisdiction, there is equivalent state and territory legislation authorising the process of ordering examination on commission.47 11.15 Although Australian courts have power to order examination on commission outside Australia, that power can only be exercised effectively if: (a) the country in which the examination is to take place permits the commissioner

[page 269] to administer an oath or affirmation; and (b) the witness is willing to attend before the commissioner to give evidence.48 For these purposes, ‘evidence’ is restricted to evidence to be given at trial.49 The onus is on the applicant to give the court evidence that the proposed examinees are unwilling or unable to come to the court to give evidence in the proceedings.50 Many civil law countries object to foreign judicial officials administering oaths within their territory on the ground that such an act constitutes an invasion of their sovereignty.51 Indeed, some countries make it an offence to execute such acts of foreign government authority.52 If the witness is unwilling to give evidence, the commissioner has no power to compel him or her to do so. These two shortcomings of the evidence-on-commission process were the main reason for the development of letters of request, which are considered next.

Letters of request and the Hague Evidence Convention 11.16 The Foreign Evidence Act 1994 (Cth) s 7(1)(c) authorises ‘superior courts’ to issue letters of request to the judicial authorities of a foreign country ‘to take the evidence of [a] person or cause it to be taken’. Such an order can only be made ‘if it appears in the interests of justice to do so’. For these purposes, ‘superior courts’ are the Federal Court, the High Court, the Family Court of Australia, or state and territory Supreme Courts when exercising federal jurisdiction.53 When state and territory Supreme Courts exercise non-federal jurisdiction, there is equivalent state and territory legislation authorising the sending of letters of request.54 11.17 When the letter of request is to be sent to a country that is party to the Hague Evidence Convention,55 the letter of request is sent from a judicial authority [page 270] in Australia to a competent authority in the receiving country,56 asking the latter to obtain evidence on behalf of the former. The witness is examined by the

competent authority in the country where he or she is to be found, according to that country’s law about methods and procedures,57 but using the questions or statement of subject matter set out by the requesting court in the letter of request.58 The competent authority in the receiving country applies the appropriate measures of compulsion under its domestic law to secure the attendance of witnesses and the production of evidence,59 subject to any claim of privilege the witness may have either under the law of Australia or of the requested state.60 The witness’s evidence is taken by deposition, which is then forwarded to the requesting court,61 where the deposition is received into evidence. The receiving country is obliged under the convention to execute the request. Execution of a letter of request may only be refused if: (a) the execution does not fall within the functions of the judiciary of the requested state; or (b) it prejudices that state’s sovereignty or security.62 Execution may not be refused on the grounds that the internal law of the requested state claims exclusive jurisdiction over the subject matter of the action or would not admit a right of action over it.63 11.18 If the witness is in a foreign country that is not party to the Hague Evidence Convention, the procedure to obtain international judicial assistance is more cumbersome and unwieldy. A letter of request is sent from the Australian court to the court in the country where the witness is to be found, asking that court to take the witness’s evidence. The country receiving the letter of request is under no obligation to comply with the request; requests rest entirely upon the comity of courts toward one another and customarily embody a promise of reciprocity.64 Often, the letter must be sent through diplomatic channels, requiring the participation of two foreign ministers and sometimes two justice ministers.65 11.19 An order for the sending of a letter of request is a discretionary one, and a litigant seeking access to the testimony of a witness outside Australia must persuade the court that the discretion should be exercised because ‘it appears in the interests of justice to do so’. The Foreign Evidence Act 1994 (Cth) s 7(2) sets out some of the matters that the court must take into account in determining whether it is in the interests of justice to make such an order: [page 271]

(a) whether the person is willing or able to come to Australia to give evidence in the proceeding; (b) whether the person will be able to give evidence material to any issue to be tried in the proceeding; (c) whether, having regard to the interests of the other parties to the proceeding, justice will be better served by granting or refusing the order. There are similar provisions in the equivalent state and territory legislation,66 except in South Australia, where the Act merely states that a letter of request may be sent ‘when it is necessary or expedient that evidence … be taken outside the State’.67 Section 7(2) is expressed inclusively and therefore does not provide an exhaustive list of relevant considerations.68 11.20 In Hardie Rubber Co Pty Ltd v General Tire and Rubber Co,69 the High Court held that the applicant for an order for a letter of request must satisfy the court that it cannot procure the attendance of material witnesses within the jurisdiction by other means. The applicant must show that it is probable that the person to be examined in the foreign country will be able to give material evidence to the proceedings; it does not have to be shown that it is almost certain that he or she will.70 It is not sufficient that the person might be able to identify material witnesses.71 It is clear from the terms of s 7(2)(a) that it need not be shown that the witness is unable to come to Australia to give evidence; it is sufficient that he or she is unwilling to do so.72 The reasons for the witness’s unwillingness are, to a large extent, irrelevant.73 Thus, it is not necessary to show that an overseas witness is unable to attend because of ill-health, impecuniosity or for other reasons making attendance impossible.74 Ultimately, the question is one of the judge’s discretion. In Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd,75 Morling J said that even when previous decisions support the applicant’s case that a letter of request be sent, the discretion still remains to refuse to make the order. 11.21 The letter-of-request procedure can only be used to obtain evidence for use on the trial of an issue, not to obtain information that might be of assistance in preparation for trial.76 The evidence must satisfy the same criteria of admissibility as [page 272]

if it were given at trial.77 Even if the evidence is technically admissible, the court has a discretion to exclude it whenever it is in the interests of justice to do so.78 11.22 In La Baloise Compagnie d’Assurances Contre L’Incendie v Western Australian Insurance Co Ltd,79 a Full Court of the Supreme Court of Victoria held that where the credibility of the witness examined abroad is of great importance, the court may refuse to admit the whole or any part of the deposition of the witness’s evidence. The court was particularly concerned by the fact that there had been no cross-examination of the witness in the foreign jurisdiction, which was Cuba. Obviously, therefore, it is necessary to request that the witness be cross-examined if local procedures permit that to occur. The legislation in each Australian jurisdiction (except South Australia) specifically provides that a letter of request may include a request for cross-examination.80 However, because the examination of the witness takes place according to local procedures, there is no guarantee that cross-examination will be permitted. Even if cross-examination does take place, the witness’s demeanour under examination and cross-examination will have been seen by the foreign court but not by the relevant Australian court. The Australian court may take the view that it can only form a reliable view of the witness’s credibility if it itself has seen the witness give evidence because, as Kirby P (with whom Handley and Sheller JJA agreed) said in Seagulls Rugby League Football Club Ltd v Superintendent of Licences:81 Conventionally, it is accepted within our system of jurisprudence that tribunals of fact are better able to resolve such conflicts [between witnesses’ testimony] when they have the advantage of seeing the witnesses in conflict before them.

11.23 The demeanour of the witness can be observed by the requesting Australian court if a video recording is made of the witness’s testimony. In DPP v Alexander82 Hunt CJ at CL of the Supreme Court of New South Wales said that the traditional concern about the credibility of testimony given by an unseen witness does not apply when a video recording is made of that testimony. The Australian legislation [page 273] provides that a letter of request may include a request about ‘any matter relating to the taking of that evidence’,83 which is broad enough to encompass a request that a video recording be made of the witness’s testimony in the foreign

country.84 The Hague Evidence Convention provides that the judicial authority receiving the request must follow any request ‘that a special method or procedure be followed unless this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties’.85 Unfortunately, this seems to give the receiving country ample scope to decline to follow a request that a video recording be made of the examination. In the case of countries not party to the Hague Evidence Convention, there is, of course, no obligation on the receiving country to comply with the request at all.

Audio- and video-linked testimony 11.24 All Australian jurisdictions except the Australian Capital Territory have made provision for the taking of evidence from witnesses outside Australia directly by audio or video link.86 In the Australian Capital Territory the relevant legislation applies only to witnesses in other Australian states and territories and New Zealand, so it will not be considered further here.87 However, in Bell Group (in liq) v Westpac Banking Corp,88 Owen J of the Supreme Court of Western Australia held that the Foreign Evidence Act 1994 (Cth) s 7(1)(a) authorises state and territory courts to take evidence by video link from other countries when exercising federal jurisdiction. Owen J held that an examination by video link was an examination ‘before a judge of [page 274] the court’ for purposes of that paragraph.89 If Bell Group is followed in the Australian Capital Territory, courts in that jurisdiction may take video link evidence from other countries when exercising federal jurisdiction. However, when s 7 of the federal Act is the source of power to order video link testimony, the court is obliged by s 7(2) to consider the ‘interests of justice’ factors described above at 11.19. There is no similar limitation on the general power found in the state and territory legislation or in the power conferred on the Federal Court or the Family Court of Australia,90 the exercise of which is simply left to the discretion of the judge.91 11.25 As noted above in relation to evidence on commission (see 11.15), many countries (particularly those in civil law jurisdictions) object to foreign judicial

officials taking evidence from persons within their territory on the ground that such an act constitutes an invasion of their sovereignty. In Joyce v Sunland Waterfront (BVI) Ltd,92 a Full Court of the Federal Court of Australia held that the legislation authorising the taking of evidence by video link overrides any obligation that Australia might have had to respect another nation’s sovereignty for reasons of international comity.93 Accordingly, the court should exercise its discretion to take evidence by video link even if the country from which evidence is to be given does not consent to a person within its borders giving evidence to a court in Australia.94 If that country prohibits or makes inconvenient the giving of evidence on oath or affirmation from within its borders, the court should take the evidence by video link but dispense with the oath or affirmation.95 The Full Court did acknowledge that ‘problems may arise’ if the country in question prohibits the witness from giving evidence in such circumstances,96 as for example France does in some circumstances,97 but the court did not expand on what should be done in such a case. Presumably, the court should exercise its discretion not to take evidence by video link if to do so would make the witness violate the law of the country from which his or her evidence is to be given.98 11.26 There is a widespread practice of approaching the Department of Foreign Affairs and Trade when it is proposed to take evidence in a foreign country, with [page 275] a view to obtaining the consent of the relevant government.99 That practice is not required by the legislation but may be desirable if there is reason to believe that there are aspects of the relevant foreign law or of the relationship between the Australian and foreign governments that make it desirable that DFAT be involved.100 11.27 Despite legal and technical provision being made for evidence to be taken by audio or video link from witnesses who are overseas, conceptual problems remain. Questions arise in relation to the administration of the oath or affirmation, punishment for perjury or contempt and the privileges available to the witness to refuse to answer questions.

The oath or affirmation

11.28 In the Federal Court and state courts in New South Wales, the Northern Territory, Queensland, Tasmania and Victoria, the oath or affirmation for testimony to be given over audio or video link may be given either over the link or by a person at the witness’s location in accordance with the court’s direction.101 In Western Australia, the oath or affirmation is to be given as nearly as practicable in the same way as if the witness were in the presence of the person administering the oath or affirmation,102 which suggests that the oath should be given over the audio or video link. No similar provision has been made in South Australia.103 11.29 If the witness is in a country where the law does not permit administration of an oath or affirmation in relation to Australian proceedings, he or she can only give unsworn testimony. In those jurisdictions that have not made special provision for these circumstances, the result is that the witness’s testimony cannot be received at all because of the requirement that all evidence be given under oath or affirmation.104 In the Federal Court of Australia and in state courts in New South Wales, Queensland and Tasmania, the judge may accept unsworn testimony via audio or video link in these circumstances if he or she is satisfied that it is appropriate for unsworn testimony to be given, giving that testimony such weight as the judge thinks appropriate in the circumstances.105 However, as noted in 11.25, some countries make it an offence to execute acts of foreign government authority, so that the [page 276] witness would commit an offence under that country’s law by giving even unsworn testimony to an Australian court.106 In such circumstances, the witness’s evidence should not be taken at all, even though the court has power to do so. Although a Full Court of the Federal Court held in Joyce v Sunland Waterfront (BVI) Ltd107 that evidence can be taken from a witness in a country that does not consent, or which regards such a procedure as a violation of its sovereignty, the court noted that a different outcome may be called for when the foreign country’s law makes it an offence for the witness to give evidence to an Australian court.

Perjury and contempt 11.30 If a witness giving evidence over an audio or video link from outside

Australia lies or refuses to answer a question, the question arises whether he or she has committed perjury or contempt of court, given that the relevant conduct occurred in another country. In New South Wales, the Northern Territory, Queensland, Tasmania, Victoria and Western Australia, there is legislation to the effect that any person giving evidence by audio or video link is deemed to be present in court for purposes of the laws relating to contempt and perjury, with the effect that any offence committed at the place where the person is giving the evidence is located is taken to have been committed at the courtroom in the relevant Australian jurisdiction.108 This attempt to give ‘long arm’ effect to the Australian law of perjury and contempt is obviously hampered by the court’s lack of coercive powers of enforcement over a witness outside Australia. Nevertheless, the probative weight of the witness’s testimony is enhanced by the fact that lying or refusing to answer constitutes an offence with at least some possibility of punishment. The position is less clear in South Australia, where there is no equivalent legislation. 11.31 Some countries have passed legislation making it perjury to lie when giving testimony over audio or video link to a foreign court, or contempt to refuse to answer the foreign court’s questions. Canada is an example.109 If evidence is given to an Australian court by audio or video link from such a country, the threat of punishment for perjury or contempt is obviously more immediate, as the witness will have committed an offence under Canadian, as well as Australian, law. [page 277]

Privileges and immunities 11.32 A witness giving evidence by audio or video link from another country may refuse to answer a question because of a privilege available under the law of the jurisdiction where the evidence is given. Does that refusal to answer constitute contempt of court if the privilege invoked by the witness is not part of the law of the Australian forum? For example, journalists in California cannot be adjudged in contempt for refusing to disclose their sources,110 but any such refusal would constitute contempt of court in most Australian jurisdictions.111 Should a journalist in California be held to have committed contempt under the ‘long arm’ provisions considered at 11.30 for invoking a privilege conferred on him or her by the law of the place where the evidence is given? Unfortunately,

the answer seems quite clearly to be ‘Yes’. Those ‘long arm’ provisions state that the Australian lex fori applicable in the courtroom applies in the same way to the person giving evidence from the remote location ‘for the purposes of the laws relating to evidence, procedure, contempt of court or perjury’,112 which plainly includes the law relating to a privilege against answering a question in court. The Queensland provision specifically includes the Queensland law of ‘privileges, protection or immunities’ among the bundle of laws applied to the remote witness.113 Even in the absence of such specific legislative provision (and there is none in relation to audio or video link evidence in the Federal Court), the law relating to privileges is generally regarded as being procedural, and thus governed by the lex fori: see 16.26. 11.33 This insistence on confining the witness’s protection to the privileges of the lex fori is unfortunate and counter-productive, as any potential witness who learns of this aspect of Australian law would presumably be well advised to refuse to give evidence if there is any doubt about his or her privilege not to answer. In the context of examination of a witness pursuant to a letter of request, Art 11 of the Hague Evidence Convention provides that the witness may refuse to give evidence if he or she has a privilege to do so either under the law of the country where he or she is testifying or under the law of the country where the court making the request sits.114 Thus, if the Californian journalist were giving evidence to a Californian [page 278] judge pursuant to a letter of request from the court in Australia, he or she would most probably be entitled to refuse to answer a question asking for disclosure of sources.115 It is unfortunate that the same position would not prevail in relation to evidence given by audio or video link. 11.34 In Bell Group (in liq) v Westpac Banking Corp,116 Owen J of the Supreme Court of Western Australia considered whether the absolute immunity from liability in defamation that extends to statements made in judicial proceedings might apply to a witness appearing by video link from London. Owen J could not conclusively determine whether an English court would confer upon participants in a hearing before the Supreme Court of Western Australia the protection of absolute privilege from suit for defamation. Instead, His Honour’s concern was whether there was a real and unacceptable risk that immunity might

not be extended.117 His conclusion was that although it would be surprising if courts in the United Kingdom did not extend the immunity in these circumstances, the risk was neither unreal nor was it at an acceptable level.118 Owen J pointedly added that any comfort that might be gained from a shared legal heritage with the United Kingdom would not apply to other foreign jurisdictions.119 Accordingly, if there is any possibility that a witness’s testimony might expose him or her to liability for defamation in the country where it is given, that factor must plainly be taken into account when deciding whether to make an order for evidence to be taken by video link.

Documents and Discovery Compelling the production of documents by subpoena Under the Hague Service Convention 11.35 The normal procedure for compelling production of relevant documents held by a non-party is to serve the holder with a subpoena for the production of documents (also known as a subpoena duces tecum). As noted in 11.5, it has been held that a subpoena is a ‘judicial document’ for purposes of the Hague Service Convention.120 If that is accepted, it would seem to follow that a subpoena for the production of documents can be served on a non-party in a foreign country that is party to the Hague Service Convention by using the convention procedures described in 11.5–11.6. It is questionable whether that should be so, however, as it would permit an Australian party to use the Hague Service Convention to [page 279] make what one American court has called an ‘end run’ around the requirements of the Hague Evidence Convention,121 which are described below at 11.39–11.40. Article 23 of the Hague Evidence Convention allows a contracting state to declare that it will not execute letters of request ‘issued for the purpose of obtaining pre-trial discovery of documents as known in common law countries’. Of the countries where the Hague Evidence Convention is in force for Australia,122 only a few have not made Art 23 reservations in one form or

another.123 (Australia itself has made an Art 23 reservation.) As a result, the Hague Evidence Convention procedures cannot be used to request production of documents from non-parties in those countries. Furthermore, several countries have passed ‘blocking statutes’ designed to prohibit the production of documents for use in foreign litigation,124 mainly to protect against intrusive discovery requests from the United States. To use the Hague Service Convention to serve a subpoena directly on a non-party in a foreign country would be to make an ‘end run’ around the requirements of the Hague Evidence Convention generally, and Art 23 in particular, as well as the foreign blocking statutes (if any). An argument to this effect was made in Caswell v Sony/ATV Music Publishing (Australia) Pty Ltd,125 but it was not necessary for Hallen AsJ to address it. As the Hague Service Convention is designed to facilitate the transmission of judicial documents, not to create substantive rules about what evidence must be given or which documents must be produced,126 it should not be possible to use it to serve subpoenas for the production of documents on foreign non-parties in Hague Service Convention countries, at least where they are present in countries that are also party to the Hague Evidence Convention.127

Service of subpoenas other than under the Hague Service Convention 11.36 As noted in 11.7, it has been held that the Hague Service Convention procedures are facultative, not mandatory, at least in relation to judicial documents such as subpoenas.128 If that is so, recourse may be had to the ordinary procedures for service of subpoenas out of the jurisdiction, if the rules of the relevant court so [page 280] permit. Furthermore, not all countries are party to the Hague Service Convention. If a subpoena is to be served in those countries, there is no choice but to use the court’s ordinary, non-convention, procedures. So far as service in Hague Evidence Convention countries is concerned, the ‘end run’ argument made in 11.35 can be made with equal force in relation to use of the court’s ordinary service procedures to effect service of subpoenas for the production of documents. Direct service under the court’s ordinary procedures would circumvent the requirements of the Hague Evidence Convention

generally, Art 23 in particular, as well as foreign blocking statutes (if any). As will be seen in 11.37, courts are already reluctant to use the ordinary service procedures to allow service outside Australia of subpoenas for the production of documents. The ‘end run’ argument provides another reason for restraint to be exercised, at least in relation to service in Hague Evidence Convention countries. 11.37 The civil procedure rules in the Australian Capital Territory, New South Wales, Queensland and Western Australia permit a party to serve a document other than originating process outside Australia with leave of the court or (in the Australian Capital Territory and New South Wales) if the court subsequently confirms service.129 In Victoria, the equivalent rule makes no mention of leave of the court before service is made in countries that are not party to the Hague Service Convention,130 but it has been held that leave is required before service can be made.131 However, as noted above in relation to the testimony of witnesses (see 11.8), a subpoena of this kind either cannot or should not be served on a non-party outside Australia. In Stemcor (Australasia) Pty Ltd v Oceanwave Line SA,132 Allsop J echoed and applied the comity-based caution expressed by Rogers CJ Comm D in Arhill Pty Ltd v General Terminal Co Pty Ltd133 (considered above at 11.8), holding that because Australian courts cannot enforce compliance of a subpoena in another country, the order would be an empty threat and should therefore not be made. A similar view was expressed by a Full Court of the Federal Court of Australia in Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International NV,134 where the conclusion was held to follow even more clearly when the foreign non-party in question was itself a sovereign state. 11.38 As noted above (11.9–11.10), the service rules in the Federal Court, the Northern Territory, Tasmania and South Australia confer more limited power to permit service outside Australia of subpoenas for the production of documents. To the extent that the jurisdiction exists at all, it should be exercised with the same caution described in 11.8 and 11.37. [page 281]

Letters of request for documentary evidence and the Hague Evidence Convention 11.39 As noted above in relation to the testimony of witnesses (see 11.16),

federal, state and territory courts are authorised to issue letters of request to the judicial authorities of a foreign country ‘to take the evidence of [a] person or cause it to be taken’.135 In Elna Australia Pty Ltd v International Computers Pty Ltd,136 Gummow J held that ‘evidence’ for these purposes does not include documents on their own. The applicant in that case had applied to the Federal Court by notice of motion seeking an order that a request be issued by the court to the High Court of Justice in England for evidence to be obtained in the United Kingdom by an order for production of certain documents by ICL Computers Ltd. Gummow J rejected the applicant’s argument that the documents were ‘evidence of’ ICL Computers Ltd and held that the court was only authorised to make a request for production of documents if those documents were ancillary to the oral testimony of a witness.137 11.40 Rogers J of the Supreme Court of New South Wales cast some doubt on Elna in obiter comments made in Westpac Banking Corporation v Halabi.138 Rogers J did not find it necessary to reach a decision on the question whether a letter of request could be sent for documents alone because he refused the application for a letter of request on other grounds. However, after referring to Gummow J’s historical analysis of the system of letters rogatory in Elna, Rogers J continued: Documents are as much evidence as is oral evidence. The tender of documents is the taking of evidence. In those circumstances, in my view, a letter of request, in requiring the production of documents, does provide for the taking of evidence.

In Biota Holdings Ltd v Glaxo Group Ltd,139 Whelan J of the Supreme Court of Victoria said (also obiter) that in the modern context there is much to be said for the views expressed by Rogers J in Halabi rather than those expressed by Gummow J in Elna, but found it unnecessary in the circumstances to choose between them. In British American Tobacco Australian Services Pty Ltd v Eubanks, for the United States of America,140 Spigelman CJ, after an extensive review of the history of the convention and the authorities in Australia and the United Kingdom, concluded that an order cannot [page 282] require steps to be taken, including the production of documents, unless they are for the purpose of obtaining evidence for use at trial, rather than for pre-trial discovery.

11.41 In Queensland, express provision is made for issue of a letter of request seeking the production of documents abroad, either with or without examination of a witness.141 11.42 The applicant in Elna argued in the alternative that the Federal Court had power to send a letter of request to the English court in exercise of its inherent jurisdiction. Gummow J rejected that argument too, saying that the Federal Court has no inherent powers other than those expressly or impliedly conferred upon it by the legislation that governs it. It might be thought that the position would be different in relation to state and territory courts, which, unlike the Federal Court, do have inherent powers. There is English authority to the effect that the inherent powers of the High Court of England and Wales do extend to sending a letter of request seeking the production of documents only, although that inherent power is confined to a request for a particular document that is admissible in evidence, directly material to an issue in the action and which the court is satisfied exists or is likely to exist.142 However, in Novotny v Todd,143 both parties accepted that the Western Australian Court of Appeal had no inherent power to issue a letter of request for the production of documents and after considering the English authorities, McLure J assumed that the court did not have that power.144 11.43 Section 581(4) of the Corporations Act 2001 (Cth) authorises Australian courts to send letters of request to foreign courts that have jurisdiction in external administration matters. Because this provision makes no reference to the taking of evidence as the basis for the issue of a letter of request, a Full Court of the Federal Court of Australia held in Joye v Beach Petroleum NL145 that the decision and reasoning in Elna have no application in limiting the operation of the general words of the subsection. Accordingly, letters of request may be sent requesting production of documents when authorised by s 581(4).

Letters of request for oral testimony supported by documentary evidence 11.44 One way around the difficulties described at 11.39–11.43 is to apply for a letter of request seeking documentary evidence in support of the oral testimony of a witness. That may be easier said than done, however. In order to know exactly what questions to ask to elicit the relevant documents, the applicant would often have to be able to see the documents. Without being able to see the documents, the applicant may not be able to ask questions with sufficient specificity to be acceptable to the court that will have to administer them, and

that will elicit answers that will need to be supported by the relevant documentation.146 The applicant cannot simply send a [page 283] letter of request for production of all the documents it seeks purportedly in support of testimony to be given by a witness. In Novotny v Todd,147 the applicant sought a letter of request for the production of documents held by a foreign non-party company, with oral testimony to be given by an officer of the company who would identify and authenticate the documents. The Western Australian Court of Appeal held that a letter of request in this form should not be issued, as the purpose of the letter of request was to obtain third party discovery from foreign companies, ‘dressed up’ as a letter of request for oral testimony supported by documents.148 In contrast, in BCI Finances Pty Ltd v Commissioner of Taxation,149 Jagot J of the Federal Court ordered that a letter of request be sent to the judicial authorities in Israel seeking production of documents held by a company because they were ancillary to the testimony of a witness, which was also requested. Jagot J was satisfied that the application was not a disguised attempt at getting discovery, nor that the application for the taking of oral evidence was simply ancillary to the request for production of documents.

Statutory Provision for the Admission of Foreign Documents 11.45 If foreign documents can be obtained, either from persons willing to produce them or by using one of the methods outlined at 11.35–11.44, they must then be received into evidence. Statutory provision for the proof of foreign documents has been made by the Evidence Act 1995 (Cth) in provisions which by virtue of s 5 of that Act apply to all proceedings in Australian courts, including state and territorial courts. Although provisions for the proof of foreign documents are also made in state and territorial law, they have been largely displaced by the federal provisions150 and can have only marginal significance. The discussion that follows will therefore be largely confined to federal law, except where state or territorial law makes wider provision.

11.46 Section 157 of the Evidence Act 1995 (Cth) makes provision for the admission in evidence of copies of Australian and foreign judgments and other documents lodged with Australian and foreign courts.151 It remains undecided whether a ‘foreign judgment’ for these purposes means only that part of the document that records the decision of the court, or the whole of the document, including the court’s reasons for judgment and any summary of the testimony or other evidence before the court.152 Matters relating to the incorporation and other aspects of Australian corporations can be proved by certificates provided under [page 284] s 1274 of the Corporations Act 2001 (Cth). Section 158 of the Evidence Act 1995 (Cth) also makes provision for the admission in evidence of public documents, or certified copies thereof, of a state or territory. 11.47 In most jurisdictions provision is made dispensing with the need to prove the seal or signature of a justice of the peace in any state or territory or Commonwealth country.153 The Evidence Act 1995 (Cth) s 150 provides that any seal affixed in Australia or a foreign country, and any signature purportedly signed by an office holder in Australia or a foreign country, shall be presumed to have been duly affixed or signed by that person, unless the contrary is proved. Under s 102 of the Family Law Act 1975 (Cth) the court may receive as evidence of the facts stated in it a document purporting to be either the original or a certified copy of a certificate, entry, or record of a birth, death or marriage alleged to have taken place in Australia or elsewhere. It is not necessary to prove that there was in fact a valid marriage or that the certificate would be accepted in evidence in the country of issue.154 This provision does not exclude the common law method of proving a foreign marriage.155 The provision is permissive only and the court may require strict proof.156 Even if the court accepts the certificate as evidence, it is not conclusive evidence. The court will assume that what the certificate states is true, but a party can always bring other evidence to rebut that presumption.157 The certificate need not be issued by a public authority. It has been held that a notarised declaration as to the events surrounding an unregistered Muslim marriage was a ‘record’ of a marriage.158 11.48 Another method of proving a foreign marriage is found in s 88G of the Marriage Act 1961 (Cth), as amended in 1985. That section states more

positively than s 102 of the Family Law Act 1975 (Cth) that a document purporting to be either the original or a certified copy of a certificate, entry or record of a marriage celebrated in or under the law of a foreign country, is, for all purposes prima facie evidence of the facts stated in it and of the validity of the marriage. Its scope is therefore not limited to matrimonial law, but applies for all purposes including state and territorial law. The court has no discretion to refuse to accept the document in evidence, but the prima facie evidence may, of course, be rebutted. The certificate, entry or record must be issued by a ‘competent authority’ in the foreign country concerned. This must be an official body entrusted with the duty of registering [page 285] marriages. A notary public recording the evidence of an informal celebration of a marriage is not a ‘competent authority’.159 11.49 The provisions that now appear in Pt 4.3 of the Evidence Act 1995 (Cth) and in the Evidence Acts of each of the states and territories dealing with the admissibility of business records by way of exception to the hearsay rule are a matter of proof and consequently can be applied by the forum to admit the records of businesses conducted anywhere in the world.160 It includes the records of government departments of another state or territory.161

Taking Evidence for Foreign Proceedings Letters of request 11.50 Just as Australia relies on other countries party to the Hague Evidence Convention to assist it in the gathering of evidence through the means of letters of request, so also Australia has undertaken the obligation of assisting foreign courts in the collection of evidence. To comply with the duties imposed by the convention, legislation has been passed in each of the states and territories empowering their respective Supreme Courts to act upon a request received from a foreign court.162 In the exercise of those powers the court may order the attendance of witnesses for examination, the production of documents and other means of collecting evidence.163 In British American Tobacco Australian Services Pty Ltd v Eubanks, for the United States of America,164 Spigelman CJ

stated the following general principles that should inform the court’s approach to letters of request from foreign courts, the principal of which are as follows: (1) Comity requires this court to view a letter of request issued by a foreign court for the purpose of civil proceedings before it benevolently. It is our pleasure and duty to assist those courts and the parties to them in arriving at a fair and just determination of their civil litigation where we can properly do so. (2) Nonetheless when an application for an order under the Act is disputed, the [court] must determine whether the order sought is one which it can or should properly make. [page 286] (3) The issue whether the order sought is for an illegitimate investigation rather than to obtain evidence to be adduced at trial is to be determined principally by reference to the terms of the letter of request and of the proposed order of this court. However, the court will consider the evidence before it as a whole. (4) Particularly pertinent will be the stage at which the order is sought and the extent to which the party seeking the order is able to demonstrate that the information sought is relevant to issues in the foreign proceedings in the sense of being capable of being adduced at trial in support of those issues. 11.51 As required by Art 11 of the convention, the witness may refuse to answer questions if entitled to privilege under the law of the Australian jurisdiction taking the evidence or of the foreign requesting court.165 In ING USA Annuity and Life Insurance Co v J P Morgan Securities Inc,166 McKechnie J of the Supreme Court of Western Australia held that where the questions in the letter of request excited a suspicion that on examination the witness might decline to answer on the grounds of self-incrimination, the examination could only take place before a judge, not some other examiner, as only a judge has the authority to compel a witness to answer an incriminating question. 11.52 Although the legislation in each jurisdiction makes provision for the production of documents,167 Australia has, like many other countries, made a reservation under Art 23 of the Convention stating that ‘[t]he Government of Australia hereby declares, for and on behalf of Australia that … pursuant to

Article 23, it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in common law countries’. Consistently with this reservation, the legislation also states that no order shall be made requiring a person to state what documents relevant to the proceedings are or have been in his or her possession, custody or power.168 Any order for production of documents must be limited to the particular documents specified in the order.169 If the request does not specify the ‘individual documents separately described’, it is not of sufficient specificity to be enforced, being more in the nature of a general attempt at getting pre-trial discovery.170 [page 287]

Audio- and video-linked testimony 11.53 All Australian jurisdictions except Victoria have made provision assisting courts in other Australian states and territories to take evidence directly from witnesses by audio or video link.171 The legislation permits the receiving court to administer the oath or affirmation over the link but provides that contempt is punishable not by the receiving court but by the state from which the transmission is made. There is no equivalent legislation assisting courts in other countries to take evidence directly by audio or video link from witnesses in Australia. As a result, foreign courts must send a letter of request for assistance in taking evidence in that manner.

Prohibition on taking evidence for foreign proceedings 11.54 Under the Foreign Evidence Act 1994 (Cth), the federal AttorneyGeneral may make a written order prohibiting the production of a document or thing, or the giving of evidence or information in any proceeding before an Australian court for the taking of evidence for use in foreign proceedings in a civil or commercial matter.172 That power shall not be exercised unless the Attorney-General is satisfied that it is desirable to do so for the purpose of preventing prejudice to Australia’s security.173 A certificate by the AttorneyGeneral that the doing of an act prohibited by such an order is prejudicial to Australia’s security is conclusive evidence of that fact.174 11.55 Under the provisions of Pt II Div 2 of the Foreign Proceedings (Excess of

Jurisdiction) Act 1984 (Cth), the federal Attorney-General, if satisfied that the assumption of jurisdiction by a foreign court or the manner of its exercise is contrary to international law or practice, may by order in writing under s 7 prohibit the production to such court of any document in Australia or the disclosure of its contents, or the giving of evidence to such court by any person who is an Australian citizen or resident. The object of the legislation is to prevent undue incursions by foreign courts, especially those in the United States, in the territorial sovereignty of Australia. _________________________ 1.

Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (hereafter the Hague Evidence Convention) Art 39. The Hague Evidence Convention is in force between Australia and Albania, Argentina, Barbados, Belarus, Bosnia and Herzegovina, Bulgaria, China, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, the Former Yugoslav Republic of Macedonia, France, Germany, Greece, Hungary, Iceland, India, Israel, Italy, Korea, Kuwait, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Mexico, Monaco, Netherlands, Norway, Poland, Portugal, Romania, Russia, Serbia, Seychelles, Singapore, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Turkey, Ukraine, United Kingdom, United States of America, Venezuela. See the Status Table at .

2.

Hague Service Convention, Art 1. See, more generally, Ch 3.

3.

See note 2 above, Art 2.

4.

See note 2 above, Art 5.

5.

See note 2 above, Art 13.

6.

See note 2 above.

7.

16 July 2013.

8.

Albania, Antigua and Barbuda, Argentina, Armenia, Bahamas, Barbados, Belarus, Belgium, Belize, Bosnia and Herzegovina, Botswana, Bulgaria, Canada, China, Croatia, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, the Former Yugoslav Republic of Macedonia, France, Germany, Greece, Hungary, Iceland, India, Ireland, Israel, Italy, Japan, Korea, Kuwait, Latvia, Lithuania, Luxembourg, Malawi, Malta, Mexico, Moldova, Monaco, Netherlands, Norway, Pakistan, Poland, Portugal, Romania, Russia, Saint Vincent and the Grenadines, San Marino, Serbia, Seychelles, Slovakia, Slovenia, Spain, Sri Lanka, Sweden, Switzerland, Turkey, Ukraine, United Kingdom, United States of America, Venezuela. See the Status Table at .

9.

Federal Court Rules 2011 (Cth) Div 10.6; Family Court Regulations 1984 (Cth) Div 2; Court Procedures Rules 2006 (ACT) r 6510; Uniform Civil Procedure Rules 2005 (NSW) Pt 11A; Supreme Court Rules (NT) Reg 7A; Uniform Civil Procedure Rules 1999 (Qld) Pt 7, Div 3; Supreme Court Civil Rules 2006 (SA) Ch 3, Pt 3, Div 3, Sub-Div 2; Supreme Court Rules 2000 (Tas) Pt 38A; Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 80; Rules of the Supreme Court 1971 (WA) O 11A.

10. FCR 2011 (Cth) r 10.64; Fam C Regs 1984 (Cth) reg 21AF; CPR 2006 (ACT) r 6510(1),(2); UCPR 2005 (NSW) r 11A.4; SCR (NT) r 7A.04; UCPR 1999 (Qld) r 130D(2); SCCR 2006 (SA) r 41D; SCR 2000 (Tas) r 970D(2); SC(GCP)R 2005 (Vic) r 80.04; RSC 1971 (WA) r 11A.4. 11. FCR 2011 (Cth) r 10.65; Fam C Regs 1984 (Cth) reg 21AG(1),(2); CPR 2006 (ACT) r 65554(1)(b); UCPR 2005 (NSW) r 11A.5; SCR (NT) r 7A.05; UCPR 1999 (Qld) r 130E(1)(b); SCCR 2006 (SA) r

41E; SCR 2000 (Tas) r 970E(1)(b); SC(GCP)R 2005 (Vic) r 80.05; RSC 1971 (WA) r 11A.5. 12. Schneider v Caesarstone Australia Pty Ltd [2012] VSC 126 at [11] per Davies J; Caswell v Sony/ATV Music Publishing (Australia) Pty Ltd [2012] NSWSC 986 at [59] per Hallen AsJ. 13. Hague Conference on Private International Law, Practical Handbook on the Operation of the Hague Service Convention, eds C Bernasconia and L Thébault,The Hague, 2006, para 66. 14. See note 5 above. 15. See below, 11.35. 16. Countries objecting to Art 10(a) are: Argentina, Bulgaria, China, Croatia, Czech Republic, Denmark, Egypt, the Former Yugoslav Republic of Macedonia, Germany, Greece, Hungary, India, Korea, Kuwait, Lithuania, Malta, Mexico, Moldova, Monaco, Montenegro, Norway, Poland, Russia, San Marino, Serbia, Slovakia, Sri Lanka, Switzerland, Turkey, Ukraine, Venezuela. See the table at . 17. See the table, note 16 above. 18. See note 16 above. 19. See, for example, Cooper v Makita USA Inc, 117 FRD 16 (D Me 1987); Bankston v Toyota Motor Corp, 889 F 2d 172 (8th Cir 1989); Melia v Les Grandes Chais de France, 135 FRD 28 (DRI 1991); Honda Motor Co v Superior Court, 12 Cal Rptr 861 (Cal Ct App, 1992); Sardanis v Sumitomo Corp, 718 NYS 2d 66 (NY App Div 2001); Nuovo Pignone, SpA v MV Storman Asia, 310 F 3d 374, 383-5 (5th Cir 2002); Uppendahl v American Honda Motor Co, 291 F Supp 2d 531 (WD Ky, 2003); Intelsat Corp v Multivision TV LLC, 736 F Supp 2d 1334 (SD Fla 2010); In re Mak Petroleum Inc, 424 BR 912 (Bkrtcy MD Fla 2010). 20. ‘Statement by Japanese Delegation to Hague Conference on Private International Law’ (1989) 28 ILM 1556, 1561 (1989); see also Japanese entry in the table, above note 8. 21. See, for example, Ackermann v Levine, 788 F 2d 830 (2d Cir 1986); Research Systems Corp v IPSOS Publicite, 276 F 3d 914 (7th Cir 2002); Brockmeyer v May, 383 F 3d 798 (9th Cir 2004); Shoham v Islamic Republic of Iran,—F Supp 2d—(DDC 2013). 22. Practical Handbook, above note 13, p 69. 23. Caswell v Sony/ATV Music Publishing (Australia) Pty Ltd [2012] NSWSC 986 at [30] per Hallen AsJ. The position in the United States is to the opposite effect. If service is to be made in a Contracting State, the Convention procedures must be used: see Volkswagenwerk Aktiengesellschaft v Schlunk, 486 US 694 at 699, 108 S Ct 2104 at 2108 (1988) (‘By virtue of the Supremacy Clause [US Constitution, Art VI], the Convention pre-empts inconsistent methods of service prescribed by state law in all cases to which it applies’). 24. CPR 2006 (ACT) rr 6504, 6506; UCPR 2005 (NSW) r 11.5; UCPR 1999 (Qld) r 127(b); SCR (WA) O 10 r 7. 25. SC(GCP)R 2005 (Vic) rr 7.06(c), 7.09(a). 26. Schneider v Caesarstone Australia Pty Ltd [2012] VSC 126. 27. (1990) 23 NSWLR 545. 28. See note 27 above at 553. See also Ward v Interag Pty Ltd [1985] 2 Qd R 552; Mackinnon v Donaldson, Lufkin and Jenrette Securities Corporation [1986] Ch 482. 29. [2004] FCA 391 at [11] per Allsop J. 30. [2012] VSC 126 at [6] per Davies J. 31. [2012] NSWSC 986.

32. See note 31 above, at [101] per Hallen AsJ. 33. See note 31 above, at [117] per Hallen AsJ. 34. [2013] FCA 322 at [47] per Perram J. 35. In Blackmer v United States, 284 US 421 (1932), the Supreme Court of the United States held that an American citizen could properly be held to be in contempt of a subpoena served on him in France, simply by virtue of his citizenship. 36. As to the letter-of-request procedure under the Hague Evidence Convention, see below 11.16–11.23. 37. FCR 2011 (Cth) rr 10.44, 10.45; SCR (NT) r 7.03(1). 38. SCR 2000 (Tas) r 147(2). 39. SCCR 2006 (SA) s 41(3). 40. Evidence and Procedure (New Zealand) Act 1994 (Cth) s 7. ‘Excluded family proceedings’ are proceedings in respect of applications made under the Convention on the Civil Aspects of International Child Abduction 1980 (the Child Abduction Convention) (as to which, see Ch 28), or proceedings relating to the status or property of a person who is not fully able to manage his or her own affairs: see ibid, s 7. 41. Section 7(a). 42. Section 7(b) provides that Pt 2 applies to a subpoena that is issued in a proceeding in a state or territory court specified in the regulations. The Evidence and Procedure (New Zealand) Regulations reg 4 and Sch 1, specify courts in all jurisdictions except Victoria. 43. Sections 8(1), 9. 44. Evidence Act 2006 (NZ) s 164(1). The witness is not required to comply if allowances and travelling expenses sufficient to meet the witness’s reasonable expenses of complying with the subpoena are not given or paid to the witness: ibid s 164(2)(b). 45. See note 44 above s 165(1), (2). 46. Foreign Evidence Act 1994 (Cth) s 3(1) definition of ‘superior court’. 47. CPR 2006 (ACT) r 6813(1)(a), (b); Evidence on Commission Act 1995 (NSW) s 6(1)(a), (b); Evidence Act 1939 (NT) s 50(2)(a), (b); Evidence on Commission Act 1988 (Qld) s 4(1)(a), (b); Evidence Act 1929 (SA) s 59E(1)(a), (b); Evidence on Commission Act 2001 (Tas) s 7(2)(a), (b); Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 9B(1)(a), (b); Evidence Act 1906 (WA) s 110(1)(a), (b). 48. DPP v Alexander (1993) 33 NSWLR 482 at 486 per Hunt CJ at CL. 49. British American Tobacco Australia Services Ltd v Eubanks, for the United States of America (2004) 60 NSWLR 483; Nicolai v Indochina Medical Co [2013] NSWSC 654. 50. Nicolai v Indochina Medical Co [2013] NSWSC 654. This criterion is specifically mentioned in relation to applications for letters of request to be sent under the Hague Evidence Convention: see Foreign Evidence Act 1974 (Cth) s 7(2)(a) and 11.19 below. 51. See, for example, Park v Citibank Savings Ltd (1993) 31 NSWLR 219, where Powell J was unable to hear evidence on commission in Korea because the requisite permissions had not been given by the Korean authorities. See also Nicolai v Indochina Medical Co [2013] NSWSC 654 (considering the difficulties of taking evidence on commission in France and Switzerland). Common law countries seldom express similar objections. See, for example, the Oaths and Evidence (Overseas Authorities and Countries) Act 1963 (United Kingdom) s 1 (‘Any person appointed by a court or other judicial authority of any foreign country shall have power in the United Kingdom to administer oaths for the purpose of taking evidence for use in proceedings, not being criminal proceedings, carried on under the law of that country’).

52. See, for example, Swiss Penal Code, Art 271: ‘Whoever, without authorization, executes acts on Swiss territory which are attributable to an administrative or government authority on behalf of a foreign state … will be punished with prison …’. 53. Foreign Evidence Act 1994 (Cth) s 3(1) definition of ‘superior court’. 54. CPR 2006 (ACT) r 6813(1)(c); Evidence on Commission Act 1995 (NSW) s 6(1)(c); Evidence Act 1939 (NT) s 50(2)(c); Evidence on Commission Act 1988 (Qld) s 4(1)(c); Evidence Act 1929 (SA) s 59E(1)(c); Evidence on Commission Act 2001 (Tas) s 7(2)(c); Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 9B(1)(c); Evidence Act 1906 (WA) s 110(1)(c). 55. See note 1 above. 56. Hague Evidence Convention, Arts 1, 6. The request is sent to the designated Central Authority in the receiving country (Art 2), which forwards it to the authority competent to execute it (Art 6) unless it (the Central Authority) considers that the request does not comply with the requirements of the Convention (Art 5). 57. See note 56 above Art 9. 58. See note 56 above Art 2(f). 59. See note 56 above Art 10. 60. See note 56 above Art 11. 61. See note 56 above Art 13. The documents establishing the execution of the letter of request are sent back through the Central Authority through which they were sent. 62. See note 56 above Art 11. 63. See note 56 above. 64. Andreas Lowenfeld, ‘International Litigation and the Quest for Certainty’ 1994-I Recueil des Cours 9, 245. 65. See note 64 above. 66. CPR 2006 (ACT) r 6813(3); Evidence on Commission Act 1995 (NSW) s 6(2); Evidence Act 1939 (NT) s 50(4); Evidence on Commission Act 1988 (Qld) s 4(2); Evidence on Commission Act 2001 (Tas) s 7(3); Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 9B(2); Evidence Act 1906 (WA) s 110(2). 67. Evidence Act 1929 (SA) s 59E(1). 68. BCI Finances Pty Ltd v Commissioner of Taxation [2012] FCA 855 at [3] per Jagot J. 69. (1973) 129 CLR 521. 70. See note 69 above. 71. Allstate Life Insurance Co v ANZ Banking Group Ltd (No 18) (1995) 133 ALR 667. 72. Australian Securities and Investments Commission v Rich (2004) 49 ACSR 578 at 591, at [60] per Austin J. 73. Bell Group (in liq) v Westpac Banking Corp (2004) 208 ALR 491 at 520, at [146] per Owen J. 74. Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd (2001) 53 NSWLR 1 at 5, at [28] per Palmer J. 75. (1990) 95 ALR 444 at 449. 76. Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 18) (1995) 133 ALR 667; Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 4) (Court’s Allstate Judgment No 29) (1996) 64 FCR 61 at 69 per Lindgren J; British American Tobacco Australia

Services Ltd v Eubanks, for the United States of America (2004) 60 NSWLR 483. 77. Foreign Evidence Act 1994 (Cth) s 9(2)(b); CPR 2006 (ACT) r 6830(2); Evidence on Commission Act 1995 (NSW) s 8(2)(b); Evidence Act 1939 (NT) s 51(2)(b); Evidence on Commission Act 1988 (Qld) s 7(3)(b); Evidence on Commission Act 2001 (Tas) s 7(7)(b); Evidence Act 1958 (Vic) s 9B(6)(b); Evidence Act 1906 (WA) s 110(6)(b). There is no equivalent provision in South Australia. 78. Foreign Evidence Act 1994 (Cth) s 15(2); CPR 2006 (ACT) r 6830(3); Evidence Act 1939 (NT) s 51(3); Evidence on Commission Act 1988 (Qld) s 7(4); Evidence on Commission Act 2001 (Tas) s 7(8); Evidence Act 1958 (Vic) s 9B(7); Evidence Act 1906 (WA) s 110(7). There are no equivalent provisions in New South Wales and South Australia. UCPR 2005 (NSW) r 31.6(3) is an equivalent provision in relation to evidence taken on commission; it may also be applicable to letter-of-request evidence. 79. [1939] VLR 363. See also Bangkok Bank Ltd v Swatow Lace Co Ltd [1963] NSWR 488 at 490; Walt Disney Productions v H John Edwards Publishing Co Ltd (1952) 69 WN (NSW) 281 at 282; Berdan v Greenwood (1880) 20 Ch D 764 at 766, 768; Lawson v Vacuum Brake Co (1884) 27 Ch D 137 at 142, 143. 80. Foreign Evidence Act 1994 (Cth) s 8(2)(a); CPR 2006 (ACT) r 6813(5)(a); Evidence on Commission Act 1995 (NSW) s 7(2)(a); Evidence Act 1939 (NT) s 50(6)(a); Evidence on Commission Act 1988 (Qld) s 4(4)(a); Evidence on Commission Act 2001 (Tas) s 7(5)(a); Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 9B(4)(a); Evidence Act 1906 (WA) s 110(4)(a). There is no equivalent provision in South Australia. 81. (1992) 29 NSWLR 357 at 377. 82. (1993) 33 NSWLR 482 at 498–9. 83. Foreign Evidence Act 1994 (Cth) s 8(2); CPR 2006 (ACT) r 6813(5); Evidence on Commission Act 1995 (NSW) s 7(2); Evidence Act 1939 (NT) s 50(6); Evidence on Commission Act 1988 (Qld) s 4(4); Evidence on Commission Act 2001 (Tas) s 7(5); Evidence Act 1958 (Vic) s 9B(4); Evidence Act 1906 (WA) s 110(4). There is no equivalent provision in South Australia. 84. See, for example, the order made in Eubanks, for the United States of America v Cannar [2003] NSWSC 1267 (affirmed on other grounds (2004) 60 NSWLR 483), requiring that testimony given before the Supreme Court of New South Wales pursuant to a letter of request from the US District Court for the District of Columbia be video recorded. 85. Hague Evidence Convention Art 9. 86. Federal Court of Australia Act 1976 (Cth) s 47A; Family Law Rules 2004 (Cth) r 16.05; Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 5B; Evidence Act 1939 (NT) s 49E; Evidence Act 1977 (Qld) s 39R; UCPR 1999 (Qld) r 392(1); Evidence Act 1929 (SA) s 59E(4); Evidence (Audio and Visual Links) Act 1999 (Tas) s 6: Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 42E; Evidence Act 1906 (WA) s 121. See also the Evidence and Procedure (New Zealand) Act 1994 (Cth) ss 25, 26, which authorise the taking of evidence by audio or video link from witnesses in New Zealand. In Bell Group (in liq) v Westpac Banking Corp (2004) 208 ALR 491, Owen J of the Supreme Court of Western Australia rejected the argument that the Western Australian provision should be read down to allow links only within Australia. 87. Evidence (Miscellaneous Provisions) Act 1991 (ACT) Divs 3.2, 3.3, 3.4; Evidence Act 1929 (SA) Pt 6C, s 59IE. The Evidence and Procedure (New Zealand) Act 1994 (Cth) ss 25, 26 authorise courts in the ACT to take evidence by video link from witnesses in New Zealand: see Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 32 and Note. The legislation in South Australia also contains extensive provisions in relation to evidence by audio and video link from other states (see Evidence Act 1929 (SA) Pt 6C) but it also provides that the court may take evidence by video link or any other form of telecommunication from any place outside the state if it thinks it appropriate in the circumstances.

88. (2004) 208 ALR 491. 89. See note 88 above at 501–2. 90. See note 89 above. 91. See, for example, Dorajay Pty Ltd v Aristocrat Leisure Ltd [2007] FCA 1502 at [2] per Stone J. 92. (2011) 195 FCR 213; 281 ALR 52. 93. See note 92 above, FCR 230; ALR 71, at [60], [62] per Keane CJ, Dowsett and Greenwood JJ. See also the observations of Owen J in Bell Group (in liq) v Westpac Banking Corp (2004) 208 ALR 491 at 517–18, at [118], that the country’s objection on the grounds of a violation of sovereignty would be persuasive but not conclusive. 94. See note 92 above, FCR 230; ALR 71, at [60], [62] per Keane CJ, Dowsett and Greenwood JJ. 95. See note 94 above. Not all jurisdictions permit the court to take unsworn evidence, as the Federal Court is empowered to do by the Federal Court of Australia Act 1974 (Cth) s 47A(2). The procedure is considered in more detail at 11.29. 96. See note 92 above, FCR 230; ALR 71–2, at [61], [62] per Keane CJ, Dowsett and Greenwood JJ. 97. See, for example, French Penal Code Law No 80-538, Art 1A: ‘Subject to treaties or international agreements and applicable laws and regulations, it is prohibited for any person to request, to investigate or disclose, in writing, orally or by any other means, economic, commercial, industrial, financial or technical matters leading to the constitution of evidence with a view to foreign judicial or administrative proceedings or as a part of such proceedings…’. 98. The Evidence Act 1939 (NT) s 49E(3) provides that the direction to take evidence by audio or video link should not be made if it would be unfair to any person to do so. 99. Joyce v Sunland Waterfront (BVI) Ltd (2011) 195 FCR 213 at 231; 281 ALR 52 at 72, at [64] per Keane CJ, Dowsett and Greenwood JJ. 100. See note 99 above. 101. Federal Court of Australia Act 1976 (Cth) s 47E; Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 5D(1); Evidence Act 1939 (NT) s 49K; Evidence Act 1977 (Qld) s 39W; Evidence (Audio and Visual Links) Act 1999 (Tas) s 10D(1); Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 42Y. 102. Oaths, Affidavits and Statutory Declarations Act 2005 (WA) s 7(3). 103. See note 87 above. In Bell Group (in liq) v Westpac Banking Corp (2004) 208 ALR 491 at 501–2, Owen J of the Supreme Court of Western Australia contemplated similar alternatives in circumstances where there was no specific legislative direction. 104. Evidence (National Uniform Legislation) Act (NT) s 21(1); Evidence Act 2008 (Vic) s 21(1); Evidence Act 1906 (WA) s 97(1). 105. Federal Court of Australia Act 1976 (Cth) s 47A(2),(3); Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 5D(2), (3); Evidence Act 1977 (Qld) s 39X; Evidence (Audio and Visual Links) Act 1999 (Tas) s 10D(2),(3). See, for example, Joyce v Sunland Waterfront (BVI) Ltd (2011) 195 FCR 213; 281 ALR 52. 106. See note 101 above. See also Swiss Penal Code, Art 271: ‘Whoever, without authorisation, executes acts on Swiss territory which are attributable to an administrative or government authority on behalf of a foreign state … will be punished with prison …’. 107. (2011) 195 FCR 213; 281 ALR 52. See 11.25. 108. Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 5C; Evidence Act 1939 (NT) s 49I; Evidence Act 1977 (Qld) s 39U; Evidence (Audio and Visual Links) Act 1999 (Tas) s 10C; Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 42W; Evidence Act 1906 (WA) s 121(3) (no specific

reference to perjury or contempt). See also R v Wilkie (2005) 64 NSWLR 125 (taking evidence by audio visual link in criminal trial did not contravene guarantee in Commonwealth of Australia Constitution Act 1900 (Cth) s 80 that every ‘trial on indictment’ for an offence against the law of the Commonwealth be held ‘in the State’ where the offence was committed). 109. Criminal Code (Can) s 131(1.1) (perjury); Canada Evidence Act 1985 (Can) s 50(1.2) (contempt). 110. California Evidence Code ¶1070 (1995), generally known as the ‘journalist’s shield law’. Strictly speaking, this provision does not create a privilege but merely an immunity from being adjudged in contempt: see Delaney v Superior Court, 789 P 2d 934, 939 n 6 (Cal 1990). Thus, ¶1070 does not prevent the use of other sanctions for refusal of a journalist to make discovery when he or she is a party to a civil proceeding, for example. However, journalists do enjoy qualified privilege under Californian law in these circumstances as well: Mitchell v Superior Court, 690 P 2d 625 (Cal, 1984). 111. McGuinness v A-G (Vic) (1940) 63 CLR 73; Independent Commission Against Corruption v Cornwall (1993) 38 NSWLR 207. Compare Evidence Act 1995 (Cth) s 126H; Evidence Act 2011 (ACT) s 126K; Evidence Act 2008 (Vic) ss 126J, 126K, which create a journalist privilege entitling a journalist not to disclose his or her informants in federal, ACT or Victorian courts. 112. Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 5C(2); Evidence Act 1939 (NT) s 49I(2); Evidence (Audio and Visual Links) Act 1999 (Tas) s 10C(2); Evidence Act 1958 (Vic) s 42W(2). The Evidence Act 1906 (WA) s 121(3) does not specifically refer to evidence, procedure, contempt or perjury. 113. Evidence Act 1977 (Qld) s 39U(2)(e). 114. Hague Evidence Convention, Art 11. The privilege by the law of the requesting country is available only if it has been specified in the letter of request or has been confirmed by the requesting authority at the instance of the requested authority. Ibid, Art 11(b). 115. This assumes that the word ‘privilege’ in Art 11 is not to be construed strictly because, strictly speaking, the Californian witness does not have a privilege to withhold information about his or her sources: see above, note 110. However, the fact that the Californian statute provides that the witness cannot be punished for contempt for refusing to answer should surely be sufficient for the purposes of Art 11. 116. (2004) 208 ALR 491. 117. See note 116 above at 516, at [108]. 118. See note 116 above at 518, at [119]. 119. See note 118. 120. See note 12 above. 121. Laker Airways Ltd v Pan American World Airways, 607 F Supp 324, 327 (SDNY 1985). 122. See note 1 above. 123. Countries without Art 23 reservations are Albania, Barbados, Belarus, Bosnia and Herzegovina, Colombia, Czech Republic, Estonia (although with procedural limitations), Israel, Kuwait, Latvia, Malta, Morocco, Russia, Serbia, Slovakia, Slovenia and the United States of America. See the list of declarations and reservations in the Status Table at the website of the Hague Conference on Private International Law: . 124. See the French legislation referred to above, note 9701. Australia itself has enacted a form of blocking legislation: see Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth), which allows the Attorney-General to prohibit production of documents for use in foreign proceedings of certain specified kinds. 125. [2012] NSWSC 986 at [43].

126. See note 125 above at [29] per Hallen AsJ. 127. The overlap between the countries party to the two conventions is substantial but not complete: compare note 1 with note 8. 128. Caswell v Sony/ATV Music Publishing (Australia) Pty Ltd [2012] NSWSC 986 at [30] per Hallen AsJ. The position in the United States is to the opposite effect. If service is to be made in a contracting state, the convention procedures must be used: see Volkswagenwerk Aktiengesellschaft v Schlunk, 486 US 694 at 699, 108 S Ct 2104 at 2108 (1988)(‘By virtue of the Supremacy Clause [US Constitution, Art VI], the Convention pre-empts inconsistent methods of service prescribed by state law in all cases to which it applies’). 129. CPR 2006 (ACT) rr 6504, 6506; UCPR 2005 (NSW) r 11.5; UCPR 1999 (Qld) r 127(b); SCR 2000 (Tas) r 147; SCR (WA) O 10 r 7. 130. SC(GCP)R 2005 (Vic) rr 7.06(c), 7.09(a). 131. Schneider v Caesarstone Australia Pty Ltd [2012] VSC 126. 132. [2004] FCA 391 at [12]. 133. (1990) 23 NSWLR 545. 134. (2007) 157 FCR 558 at 561–2, at [15] per Black CJ, Allsop and Middleton JJ. See also SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 2) [2006] FCA 931. 135. Foreign Evidence Act 1994 (Cth) s 7(1)(c); CPR 2006 (ACT) r 6813(1)(c); Evidence on Commission Act 1995 (NSW) s 6(1)(c); Evidence Act 1939 (NT) s 50(2)(c); Evidence on Commission Act 1988 (Qld) s 4(1)(c); UCPR 1999 (Qld) r 408; Evidence Act 1929 (SA) s 59E(1)(c); Evidence on Commission Act 2001 (Tas) s 7(2)(c); Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 9B(1)(c); Evidence Act 1906 (WA) s 110(1)(c). 136. (1987) 14 FCR 461; 74 ALR 232. This decision should not be confused with Elna Australia Pty Ltd v International Computers Pty Ltd (No 2) (1987) 16 FCR 410; 75 ALR 271, which is a decision of some significance in relation to the measure of damages available under the Trade Practices Act 1974 (Cth) s 82. 137. See also Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd (2002) 124 FCR 491 at 496, at [18] per Tamberlin J; Novotny v Todd [2002] WASCA 79; DPP v Alexander (1993) 33 NSWLR 482 at 499 per Hunt CJ at CL. 138. SCNSW, 22 December 1987, BC8700813, unreported. An appeal to the Court of Appeal of New South Wales on another part of Rogers J’s decision (the question of the modern application of the felony tort rule) is reported at 17 NSWLR 26. 139. [2006] VSC 71 at [10]. 140. (2004) 60 NSWLR 483 at 498, at [40] per Spigelman CJ 141. Evidence Act 1977 (Qld) s 26(1). 142. Panayiotou v Sony Music Entertainment (United Kingdom) Ltd [1994] Ch 142. 143. [2002] WASCA 79. 144. See note 143 above at [41]. 145. (1996) 67 FCR 275; 137 ALR 506. 146. Westpac Banking Corporation v Halabi (SC (NSW), 22 December 1987, BC8700813, unreported). 147. [2002] WASCA 79. 148. See note 147 above at [2] per Anderson J.

149. [2012] FCA 855. 150. Except to the limited extent provided for in Evidence Act 1995 (Cth) s 9. 151. See Yoon v Young Dong Song [2000] NSWSC 1147. 152. Cvetkovic v R [2010] NSWCCA at [306] per Campbell JA (with whom Simpson and Whealy JJ agreed); McJannett v Gibbs [2012] WASC 369 at [35] per Le Miere J. 153. Evidence Act 1995 (Cth) s 148 (this provision applies only in proceedings in federal courts); Evidence Act 2011 (ACT) s 150; Evidence Act 1995 (NSW) s 148; Evidence (National Uniform Legislation) Act (NT), s 148; Evidence Act 1977 (Qld) ss 42, 42A; Justices of the Peace and Commissioners for Declarations Act 1991 (Qld) s 31; Evidence Act 2001 (Tas) s 148; Evidence Act 2008 (Vic) s 148; Evidence Act 1906 (WA) s 56. 154. Wala v Wala [1966] NZLR 254. 155. Rakauskas v Rakauskas [1962] ALR 525. 156. Wala v Wala [1966] NZLR 254 at 256 per Barrowclough CJ. 157. In the Marriage of Pickering (1978) 4 Fam LR 349 at 353 per Lindenmayer J; Patel v Patel (1982) 1 NZFL 413. 158. In the Marriage of Lengyel and Rasad (No 2) (1990) 14 Fam LR 198. 159. Marriage Act 1961 (Cth) s 88G(2), (3). See In the Marriage of Lengyel and Rasad (No 2) (1990) 14 Fam LR 198. 160. R v Jenkins [1970] Tas SR 13 at 32 per Neasey J; R v Ernst (1983) 54 ALR 751. 161. R v Perry (No 4) (1981) 28 SASR 119. See also Evidence Act 1995 (Cth) s 155. 162. CPR 2006 (ACT) r 6843; Evidence Act 1939 (NT) ss 52, 53; Evidence on Commission Act 1995 (NSW) s 32; UCPR 1999 (Qld) r 131; Evidence Act 1929 (SA) s 59F(1); Evidence on Commission Act 2001 (Tas) s 5; Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 9N(1); Evidence Act 1906 (WA) s 117(1). 163. CPR 2006 (ACT) r 6843(3); Evidence Act 1939 (NT) s 53(3); Evidence on Commission Act 1995 (NSW) s 33(3); UCPR 1999 (Qld) r 131; Evidence Act 1929 (SA) s 59F(1); Evidence on Commission Act 2001 (Tas) s 5(3); Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 9N(3); Evidence Act 1906 (WA) s 117(3). 164. (2004) 60 NSWLR 483 at 498–9, at [42] per Spigelman CJ, adopting Gredd v Arpad Busson [2003] EWHC 3001 at [27] per Burnton J. 165. CPR 2006 (ACT) r 6850; Evidence Act 1939 (NT) s 54(1); Evidence on Commission Act 1995 (NSW) s 34; Evidence Act 1977 (Qld) s 38(1); Evidence Act 1929 (SA) s 59F(7) (refers only to foreign court privilege); Evidence on Commission Act 2001 (Tas) s 6(1); Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 9O; Evidence Act 1906 (WA) s 118(1). 166. [2009] WASC 157. 167. CPR 2006 (ACT) r 6843(3)(b); Evidence Act 1939 (NT) s 53(3)(b); Evidence on Commission Act 1995 (NSW) s 33(3)(b); Evidence Act 1977 (Qld) s 37(2)(b); Evidence Act 1929 (SA) s 59F(1); Evidence on Commission Act 2001 (Tas) s 5(3)(b); Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 9N(3)(b); Evidence Act 1906 (WA) s 117(3)(b). 168. CPR 2006 (ACT) r 6843(6)(a); Evidence Act 1939 (NT) s 53(6)(a); Evidence on Commission Act 1995 (NSW) s 32(6)(a); Evidence Act 1977 (Qld) s 37(4)(a); Evidence on Commission Act 2001 (Tas) s 5(6) (a); Evidence Act 1958 (Vic) s 9N(6)(a); Evidence Act 1906 (WA) s 117(6)(a). There is no equivalent provision in South Australia. 169. British American Tobacco Australian Services Pty Ltd v Eubanks, for the United States of America

(2004) 60 NSWLR 483 at 498, at [39] per Spigelman CJ. 170. Re Application of Monier Inc (2009) 76 NSWLR 158 at 165, at [28] per Matthews AJ, quoting Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] AC 547 at 635 per Lord Diplock. See also Re Fairfax Financial Holdings Ltd [2011] NSWSC 223. 171. Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 20; Evidence (Audio and Audio Visual Links) Act 1998 (NSW) ss 12–20; Evidence Act 1939 (NT) ss 49U–49ZC; Evidence Act 1977 (Qld) ss 39G– 39P; Evidence Act 1929 (SA) ss 59IH–59IP; Evidence (Audio and Visual Links) Act 1999 (Tas) ss 11– 19; Evidence Act 1906 (WA) ss 123–130. 172. Foreign Evidence Act 1994 (Cth) s 42. 173. See note 172 above s 41. 174. See note 172 above s 44(2)(a).

[page 25]

PART III

Choice of Law Generally Chapters 12

Choice-of-Law Theories

13

Personal Connecting Factors: Domicile, Nationality and Residence

14

Characterisation and the Selection of the Lex Causae

15

Renvoi and the Incidental Question

16

Substance and Procedure

17

The Pleading and Proof of Foreign Law

18

The Exclusion of Foreign Laws and Institutions

[page 291]

Chapter 12

Choice-of-Law Theories 12.1 The great attraction that the conflict of laws holds for many scholars is the theoretical speculation that the subject matter invites. Is there a general principle according to which conflicts should be resolved? If so, what is it, or what ought it to be? Theoretical speculation began as soon as the subject emerged in late medieval Italy. The historical antecedents of the subject have been adequately discussed by other writers1 and need not be repeated here; but some of the modern theories which have influenced the law should be mentioned.

The Theory of Vested Rights 12.2 The theory of vested rights is the first major common law contribution to the development of the conflict of laws. Its main proponents were Dicey in England2 and Beale in the United States.3 The vested rights theory is based on the principle that all law is territorial in scope. This means that the law of a country, including the authority of its courts, does not extend beyond its territory but does, within that territory, apply to all persons and things, present or situated thereon, however temporary that presence may be. It follows that a foreign law or a judgment could not by its own force be applied in the forum because it had no force outside the country in which it had been enacted or decreed. However, rights acquired in the territory of another country were regarded as retaining their force everywhere. This apparent contradiction was justified on the basis that the right created abroad was a legal fact of which the forum should take cognisance and on which it should operate.4 Though this necessity to recognise foreign acquired rights was subject to the ultimate safeguard of local public policy, this was a safeguard that in the eyes of the adherents of this theory should be invoked only sparingly and in the most

extreme circumstances. 12.3 The vested rights theory conceived of rights in a metaphysical way, as existing even prior to the point at which they were recognised by a court. Rights were vested in individuals by the foreign legal system in which they arose and then [page 292] simply recognised and enforced by the forum court. Under this view of the court’s role, the function of the judge was simply to declare what rights the parties already possessed.5 One of the most celebrated statements of the vested rights theory is found in the judgment of Holmes J of the United States Supreme Court in Slater v Mexican National Railway:6 But when … a liability is enforced in a jurisdiction foreign to the place of the wrongful act, obviously that does not mean that the act in any degree is subject to the lex fori, with regard to either its quality or its consequences. On the other hand, it equally little means that the law of the place of the act is operative outside its own territory. The theory of the foreign suit is that although the act complained of was subject to no law having force in the forum it gave rise to an obligation, an obligatio, which like other obligations follows the person and may be enforced wherever the person may be found … but as the only source of this obligation is the law of the place of the act it follows that law determines not merely the existence of the obligation … but equally determines its extent.

The flaws in that theoretical explanation for the application of foreign law were relentlessly exposed by the American Legal Realists, who poured scorn upon the idea of the declaratory function of the judge, which suggested, among other things, that there could only be one right answer to any case, the answer that reflected most accurately the pre-existing rights of the parties.7 Such a theory seemed inconsistent with what judges actually do when deciding cases. The Realist critique of vested rights flowed out of their critique of formalist jurisprudence in general. The Realists insisted that the common law does not exist in any meaningful sense until the point at which a judge renders a decision.8 The Realist view was, as Holmes wrote later in his life, that ‘the law’ (meaning the common law in particular) is no more than a prediction of what judges will do.9 12.4 The adherents of the vested rights theory sought to achieve a situation in which only one law was relevant to a given situation at any time. According to the theory of vested rights it was a question of allocating legislative competence. The basis of division was largely territorial, though in matters affecting personal

status the country of the domicile was regarded as having authority and jurisdiction. Furthermore, according to this multilateralist theory, that authority and jurisdiction was exclusive of all others, so that at any given time only one court or legal system was determinative of a particular legal relationship. In an ideal world where the same rules were applied by all national courts, this should lead to a uniformity of outcome, regardless of the forum.10 [page 293] It was a stirring ambition for an age when one could still hope for the acceptance of universal rules. But, as Lord Reid pointed out in Indyka v Indyka,11 it was an ideal never attained even in the heyday of the theory and it became increasingly less attainable in the uncertainty and divisions of the latter part of the twentieth century. 12.5 The vested rights theory was rejected by a majority of the High Court in Koop v Bebb.12 In Breavington v Godleman13 the justices of the High Court, with the possible exception of Deane J,14 did not question that rejection. As Toohey J said in Breavington:15 ‘One thing at least is clear. The vested rights theory propounded by Holmes J … has been rejected’. That rejection was repeated by the High Court in John Pfeiffer Pty Ltd v Rogerson16 and Blunden v Commonwealth.17 Nevertheless, it has been observed, rather wistfully, that ‘[S]ince Currie, Cook and Cavers discredited Beale’s “vested rights” theory, no successor theory has met with widespread acceptance’.18

The Local Law Theory 12.6 The local law theory as first put forward by WW Cook in the period between the World Wars19 was a more consistent application of the territorial theory. In essence Cook claimed that the forum could only apply its own law in any case arising before it. It was illogical to speak of the enforcement of rights as defined and created by the law of a foreign jurisdiction. If the lex fori is the only relevant law within the territory of the forum, then it follows that any obligation enforced by the court of the forum must derive its ultimate authority from the lex fori and not from some foreign law. This did not mean, however, that the forum should apply, in a situation arising before it which had foreign connotations, the same rule that it would apply in a

purely domestic situation of the same type. As Cook said:20 The view outlined may be stated as follows: the forum, when confronted by a case involving foreign elements, always applies its own law to the case, but in doing so

[page 294] adopts and enforces as its own law a rule of decision identical, or at least highly similar though not identical, in scope with a rule of decision found in the system of law in force in another state or country with which some or all of the foreign elements are connected, the rule so selected being in many groups of cases, subject to the exceptions to be noted later, the rule of decision which the given foreign state or country would apply, not to this very group of facts now before the court of the forum, but to a similar but purely domestic group of facts involving for the foreign court no foreign element. The rule thus ‘incorporated’ into the law of the forum may for convenience be called the ‘domestic rule’ of the foreign state, as distinguished from its rule applicable to cases involving foreign elements. The forum thus enforces not a foreign right but a right created by its own law.

Cook’s contribution to the development of the conflict of laws was philosophical rather than substantive. His theory did not by itself compel any change in the multilateral structure of the conflict of laws. The major importance of his views lies in the realisation that the function of the conflict of laws is not the preservation of international order but the carrying out of local law and policy. In John Pfeiffer Pty Ltd v Rogerson,21 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ suggested that Koop v Bebb22 could be understood as an application of the local law theory, but added that because the theory is based on the notion of comity between nations, it provides no assistance in actions commenced in federal jurisdiction, where the acts or events all occurred within the law area of Australia. 12.7 In an article published in 193323 Cavers took the local law theory a step further by attacking what he called the ‘jurisdiction selecting’ approach of the traditional conflict lawyers. Thus far, the multilateral approach in the conflict of laws had been to treat the problem of conflict of laws as one of making a choice between countries and not between laws. It was assumed that in any given legal relationship one particular country, depending on the ‘contacts’ prescribed in the relevant choice-of-law rule, had predominance and was entitled to have its rule on that subject applied. The content of that rule was theoretically irrelevant up until that moment. Cavers, on the other hand, maintained that a functional approach to the choice-of-law process of necessity involved that the court should be aware of the

contents of the laws ostensibly in conflict before making its determination as to which law should prevail. If the function of the conflict of laws is to carry out local policy, then the question before the court is whether the application of the local rule or the foreign rule would respectively advance or hinder the carrying out of local policy. This determination can be made only if the court knows the contents of the rules between which the choice lies. Instead of aiming for the elusive goal of uniformity of outcome, the forum should try to achieve local policy aims, even though other fora may achieve different results. His theory was therefore in essence unilateralist. [page 295]

Non-Conflicts 12.8 Most contemporary American writers agree that by looking first at the content of the laws the court may be able to eliminate alleged conflict of laws problems by showing that there is in fact no conflict at all. Such a non-conflict exists, in the words of Ehrenzweig, in ‘cases where there is no difference’ existing or alleged between any of the potentially applicable laws.24 In such a case there is little sense in deliberating which should prevail and the court, if the conflict reaches it at all, could suffice by applying the lex fori.25 An obvious example of this type of non-conflict is found in the facts before the High Court in Koop v Bebb.26 In that case Mr Koop was killed in a motor accident in New South Wales due to the negligence of the defendant. His infant children brought suit in Victoria under s 15 of the Wrongs Act 1928 (Vic) which permitted such an action in the case of the wrongful death of the breadwinner. In New South Wales identical provision was made in the Compensation to Relatives Act 1897 (NSW). The High Court came to the correct conclusion by allowing the plaintiffs to press their claim under the Victorian statute, the lex fori. But it arrived at this result only after an extensive discussion of the relevant choice-of-law rules, as if a choice had to be made between conflicting laws. The danger of such a jurisdiction-selecting approach is that it may produce lacunae. It is possible to argue on such an approach that only the State of Victoria was entitled to apply its law to the situation before the court. If on a construction of the Victorian statute it appeared that the statute did not apply to accidents occurring outside Victoria, the result could be reached where neither

the Victorian statute nor the New South Wales statute is applicable and the ancient common law rule that an action cannot lie in respect of the death of a human being suddenly revives after a century of supposed abolition in both states. This was indeed the conclusion reached by Dean J at first instance in Koop v Bebb.

How to Resolve a True Conflict According to Currie: interest analysis 12.9 In Currie’s view, a true conflict, in the sense that the court has to make a choice between two or more different laws, may on further analysis turn out to be a ‘false problem’, as he defines it.27 Such a ‘false problem’ exists where, on an [page 296] analysis of the facts or the policies involved, only one country is interested in having its laws applied to the situation before the court. In Currie’s view the first step for the court must be to define the governmental interests expressed in the law of the forum. The next step would be to inquire whether the situation before the court falls within the ambit of such interest. This process, as he points out, ‘is essentially the familiar one of construction or interpretation’, which the courts constantly use in statutory interpretation. If necessary, the court should also determine the governmental interest underlying the foreign law, and whether the situation before the court falls within its ambit. In defining these interests there is obviously some room for flexibility. The court may define the interests of the forum with ‘restraint and enlightenment’ by not pressing the ambit of the local law to the full extent of its constitutional reach but confining it to events within the territory. Conversely, it may decide to extend local policy in an ‘altruistic’ manner by extending the application of a local rule to events occurring abroad. Much will depend on whether the court considers the policy in question to be an imposition or a boon. If by this process the court can reduce the ostensible conflict to a ‘false’ one, the answer is simple: the court applies the law of the state that has been shown to

possess the sole interest in the matter, be it the forum or some other state. But, if the ‘ordinary process of construction and interpretation’ fails to resolve the conflict, the court, in Currie’s opinion, has no option but to prefer the interests of the forum to those of any other foreign state. It is crucial to Currie’s thesis that a court must not ‘weigh’ the competing interest of the forum against that of another state. To apply foreign law in preference to one’s own is, in his view, tantamount to declaring one’s own law to be inferior. No court should be put into such a situation. It is for this reason, according to Currie, that in any true conflict situation the law of the forum must always prevail, provided, of course, it is ‘interested’, as it usually is. It may happen that the forum is a ‘disinterested’ one. Naturally, no problem arises if on an analysis of the apparently conflicting laws the ‘disinterested’ forum decides that only one of the two other states is truly interested in having its law applied. But what should it do if it finds that each state is interested in having its law applied to the situation before the court? Or, conversely, if neither state is interested? To those questions Currie never gave a satisfactory answer. In practical terms, it might seem likely that the forum court would then stay or dismiss the action on forum non conveniens grounds, this being the consequence of the fact that it has no interest in resolving the dispute before it. 12.10 The Currie analysis at first received considerable academic and judicial support in the United States.28 The great weakness, however, of governmental interest analysis is that the governmental interest is rarely apparent from the terms of the statute or common law rule. If it is left to the courts to deduce, the result more often than not has been the success of the plaintiff in the forum he or she has [page 297] chosen because of its favourable law. A sympathetic court can always discover a governmental interest in the forum. More recent comment in the United States has consequently been critical on the grounds that the application of the theory by the courts has tended to be unpredictable, unduly favouring the forum and, as a matter of general principle, that choice of law is a matter of ascertaining party rights and not state interests.29 In Regie National des Usines Renault SA v Zhang,30 Gleeson CJ, Gaudron,

McHugh, Gummow and Hayne JJ said that a traditional jurisdiction-selecting choice-of-law rule (the lex loci delicti rule in torts cases) was to be preferred to an interest analysis approach, which ‘has resulted only in a parochial and unjust emphasis on local law and the interests of local litigants’.31

According to Cavers: principles of preference 12.11 Cavers agreed with Currie that there must be further analysis of an ostensible conflict between two or more different laws in order to see whether both laws really have a claim to be applied.32 But he doubted, like other critics of Currie, whether the ordinary process of construction and interpretation could be invoked to solve all problems. Thus, in Cavers’ view, the court should tend to look for guidance outside the statutes or common law rules immediately involved. In domestic situations involving the interpretation of statutes, courts have traditionally looked beyond the statute itself and invoked rules and presumptions of a more general nature in order to discover the often elusive intention of the legislature. In the same manner, Cavers suggested, the courts are likely to invoke general policies for the resolution of conflicts. These policies, which he called ‘principles of preference’, should indicate to courts subsequently involved with similar but not identical statutes which solutions to adopt. Thus, Cavers, unlike Currie, did favour the use and development of choice-of-law rules. These choice-of-law rules he defined, however, not as dependent on the abstract nature of the legal question before the court but as dependent upon the actual content of the laws which are in conflict. The purpose of the principles of preference is to ‘accommodate the conflicting laws of the several states’. It must be noted at this stage that both Cavers and Currie are primarily concerned with conflicts between the laws of the states within the United States. There is obviously no accommodation involved when, as Currie would suggest, the law of the forum is automatically permitted to prevail.‘Accommodation’ means devising a rule that takes account of the legitimate interests of the forum and [page 298] of other states involved or potentially involved in both the present and in future like cases. Nor should consideration be limited to ‘governmental interests’ as

Currie suggested. While Cavers did not reject the notion of ‘governmental interest’ he did suggest that ‘the claims of the parties to the litigation (and other persons who may be similarly situated) to fair treatment must be kept in mind’. Cavers wanted to steer carefully between the Scylla of anarchic ad hoc determinations and the Charybdis of ‘mechanical jurisdiction-selecting rules’. In order to avoid the latter he stressed that the principles of preference are applicable only when the court is faced with a ‘true conflict’ and the intention of the legislature of the forum cannot clearly be ascertained. Furthermore, the rules of preference, while stated in broad terms, are not to be taken as cast-iron in application. As different situations are distinguished, new principles could be created by ‘fission’. While permitting this flexibility, the author at the same time insisted that ‘we should persevere in the search of rules and principles which would determine when the law of a state which served one purpose should be preferred to the law of another state which served a different purpose’.

According to Ehrenzweig: policy analysis 12.12 Ehrenzweig, like Currie, started with the proposition that the application of the lex fori should be the basic rule. This proposition, he argued, reflects the basic tendency of the courts throughout the centuries. But the practice of the courts has been obscured by the fruitless search for a universal ‘super-law’ on the part of the theorists. As a result of theoretical writings courts were persuaded to adopt rules that directed them to give predominance to foreign laws as the ‘governing law’. However, these rules were never really effective, as the bias in favour of the lex fori was in effect maintained by the court through devices such as ‘public policy’, ‘classification’, ‘renvoi’ and the like.33 Thus, in Ehrenzweig’s view, the first task of modern jurists is to clear away the tangle of these ‘pseudo rules’ and to re-establish formally the lex fori to its proper central place. This does not mean that the lex fori should always be applied. The primacy of the lex fori is merely the starting point for the court’s analysis of the situation. Essentially, in each new case the first question is: how far does the lex fori extend? If the lex fori is found not to apply, the next question is: is it the policy of the forum that a foreign rule should be applied? 12.13 Strictly speaking, therefore, there would appear to be no room for choiceof-law rules as such. This does not mean that Ehrenzweig favoured the anarchic tendencies that have appeared in some American courts under the influence of Currie’s writings. To the contrary, he deplored and actively opposed this trend,

whether it is manifested in the policy evaluation practised by the New York and Californian courts or in the vague formulae of the ‘most significant relationship’ employed by the Second Restatement.34 Instead, he advocated the discovery [page 299] and formulation of settled rules as deduced from a factual and policy analysis of settled practice. The process of deduction commences with ‘atomised’ rules or rather subrules, which say something about the extent of the application of each domestic rule of the forum. Thus, if there were a rule that a marriage can be celebrated only between two persons who are physically present at the ceremony,35 then the question might arise about what the territorial ambit of this rule was. The court might hold that this requirement of personal presence extended only to marriages celebrated within the territory of Australia. This, of course, is not a choice-oflaw rule. It is rather an interpretation of the domestic policy of Australia relating to the celebration of marriages. If the marriage had been celebrated outside Australia and the parties were not each personally present at the ceremony, the court must consider what rule it is to apply. Here again it must ask itself what the policy of the forum, namely Australia, is on the subject matter. It will in all likelihood decide that the policy of Australia is to meet the natural expectations of the parties and to permit, therefore, the parties to comply with the requirements of the local law. Hence the Australian court will frame an accompanying rule to the domestic rule mentioned above, namely, an Australian court will treat as an effective marriage within Australia a marriage celebrated by proxy in a country which permits such marriages.36 There is no need to consider the policy of the country of celebration per se. That policy is only relevant if made relevant by the policy of the forum. This particular policy happens to coincide with similar policies followed by Australian courts in relation to other aspects of the ceremonial validity of a marriage. Ehrenzweig will permit us to sum up these similar policies in a shorthand expression by saying that the formalities of marriage are governed by the law of the place of celebration. He does so, not on the assumption that such a ‘super-law’ exists by universal consent, but because it conveniently summarises the policy approach of Australian courts on this matter.

Where such a rule exists by statute or by precedent and is actually consistently followed by the courts, Ehrenzweig refers to it as a ‘formulated’ rule that serves to define the ambit of local law. In other situations the court, while paying lip service to a traditional ‘pseudo rule’, in effect favours quite consistently a particular practical solution, for example, by selecting as the ‘proper law’ of a contract the law favouring its validity. Such a practice Ehrenzweig refers to as a ‘non-formulated rule’, which he hopes will eventually acquire ‘formulated’ status. If no rules, formulated or non-formulated, exist, the court must try to discover the forum’s policy in the manner above indicated. It does not follow automatically that it is the forum’s policy to apply a foreign rule where it does not wish its own law to be [page 300] applied. In Mynott v Barnard37 the High Court held on appeal from Victoria that the workers’ compensation legislation of Victoria was inapplicable to an accident that happened in New South Wales. But it did not conclude from this that therefore the New South Wales Act should be applied in the Victorian forum. It simply dismissed the claim. Finally, if no rule can be found or formulated and dismissal is also precluded, then and only then does Ehrenzweig advocate the application of the lex fori to fill the gap. Thus, when he spoke of the lex fori as the basic rule, he had two concepts of the lex fori in mind. First, as a highly sophisticated concept which includes consideration of the policies of the forum in order to discover the settled rule of law and, second, only on a ‘residual’ level the purely domestic law as the final resort of the court.

According to Leflar/Juenger: the ‘teleological approach’ and the ‘better law’ 12.14 Professor Leflar’s approach has been described as ‘the most revolutionary’ of the American methodologies because it gives the forum the greatest discretion to pick from among often conflicting considerations to justify the results reached in a conflicts case.38 Basically, Leflar proposes that the forum should make its choice as between the laws potentially applicable by reference to

five ‘choice-influencing considerations’. They are: 1.

predictability of results;

2.

maintenance of interstate and international order;

3.

simplification of the judicial task;

4.

advancement of the forum’s governmental interests;

5.

application of the better rule of law.39

Although Leflar himself did not give any of these considerations priority, it is the last-named that has had the most potent effect in United States practice, especially in relation to torts.40 It is the one Juenger puts forward without the aid of the other ‘choice-influencing considerations’. It differs from the previous multilateral and unilateral approaches in not so much propounding an intermediate rule whereby the dispositive law is selected, but in going directly to the choice between the dispositive substantive rules. The search for the better law allows the forum to prefer the application of what it considers to be the more modern or more just rule as against outmoded and unfair rules such as rules maintaining interspousal immunity,41 so-called ‘guest statutes’,42 caps on recovery of damages43 and the like. [page 301] 12.15 A choice premised on the quality of competing substantive rules is not as shocking or revolutionary as might appear at first sight. As is shown elsewhere in this treatise,44 courts have through manipulation of classification techniques and choice-of-law rules often made a direct choice of the most desirable law or result, sometimes quite openly.45 It could be argued, as Juenger does, that in asking the court to adopt the ‘teleological’ approach we merely ask them to drop the pretence.46 Indeed, s 11(1)(c) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) constitutes a statutory direction to apply the better law, directing the court exercising cross-vested jurisdiction to apply the law of procedure that appears to the forum to be the most appropriate in the circumstances of the case. First, however, one must inquire what is meant by this approach. At times judges have aimed for the better result in the individual case, rather than the better law. In Re Cohn,47 for example, the issue was whether the German or the English presumption of survivorship should be applied. Each statute provided a

different arbitrary answer to the problem of death in a common incident where the time of death of each person could not be identified. It is difficult to say that the German presumption of simultaneous death is inherently better than the English solution of presuming the survival of the younger. Uthwatt J’s preference for the German rule, one suspects, may have been influenced by a desire to keep one-third of the estate of Mrs Cohn out of the hands of the Administrator of Enemy Property. The difficulty with a ‘just result’ approach is that it is essentially ad hoc. Might the decision in Re Cohn have been different if the party claiming Mrs Oppenheimer’s share had been her orphaned child? A system of jurisprudence must surely be principled even if one cannot deny that judges in both domestic and international cases often aim for the result rather than the law. However, one would hope that if a court prefers the foreign or forum law in a particular situation, it will contemplate that other courts will be bound to make the same choice in similar circumstances. This was clearly the case in the decision of the High Court in Stevens v Head,48 until it was overruled by a later High Court in John Pfeiffer Pty Ltd v Rogerson.49 The effect of that decision, while it stood, was to confine provisions limiting the amount recoverable for non-economic loss suffered in motor accidents such as are found in s 79 of the Motor Accidents Act 1988 (NSW) to actions brought in the courts of the enacting state. Canny plaintiffs used the freedom given by s 15(1) of the Service and Execution of Process Act 1992 (Cth) to sue elsewhere.50 However, one court’s better law may be another’s poison. The Civil Liability Acts adopted by states in the first years of the twenty-first century are seen by some as unfair. Only by reference to an ideology can a court make a choice which is the better law; [page 302] a commitment to the rights of the individual whatever the cost to the community, or conversely a commitment to the proposition that in some cases the ‘collective good’ must prevail. No doubt, such considerations have had their influence as unarticulated premises in judicial decision making in the past, but it would be difficult to sustain a decision articulated on such grounds in present Australian legal culture.51 Juenger, however, did not see the ‘better law’ approach as simply the adoption of a preferable rule, be it foreign or domestic. He saw the function of the judge

faced with an interstate or international dispute as similar to the Roman praetor peregrinus who determined disputes involving foreigners by evolving a separate legal system by merging elements of the foreign and Roman laws. In that way a true ‘international private law’ would develop, dispensing with the need for choice-of-law rules.52 It is a stirring ambition, which in some areas, such as international commercial transactions, may well be achievable.53 But the law laid down by the praetor peregrinus ultimately became, by force of Roman arms, the universal law around the Mediterranean. In this fractured world, universality of law is an unattainable ideal. At best we can hope for consistent policies on the national level for international transactions, at worst ad hoc decisions destroying any predictability in the law. Juenger says that even at its worst, the teleological approach would compel judges to be honest and accountable by stating the real reasons for their decisions.54 That is a desirable goal, which should not be confined to international matters. There are certain well-established policies of our legal system that indicate a preference for a particular solution and which can form a basis for principled decision-making. For instance, the policy that the testator’s declared intention should be upheld was rightly given effect to in cases such as Ramsay v Liverpool Royal Infirmary55 and Re Korvine’s Trusts.56 The policy in favour of upholding a marriage is illustrated by Lawrence v Lawrence.57 A similar policy can be discerned in favour of the validity of contractual arrangements.58 There are countervailing policies such as the modern desire to protect consumers.59 A teleological approach based on declared policies consistently applied would serve both the principle of justice and that of predictability.

Choice-of-Law Technique in Australia 12.16 As we have seen, the High Court has rejected the ‘vested rights’ theory. In so doing, the High Court has rejected the idea of a supranational obligation to respect [page 303] rights and duties accrued abroad and accepted the notion that only the law of the forum can define the extent of the relief which a litigant seeks in its courts, which is the essence of the ‘local law theory’.

This does not mean that the High Court has embraced the American technique of ‘interest analysis’, either. As was pointed out in 12.10, the High Court rejected ‘interest analysis in Regie National des Usines Renault SA v Zhang.60 The ‘interest analysis’ technique had gained some followers in Australia for a while. Judicial interest in the technique in the British Commonwealth reached a high point in the speech of Lord Wilberforce in the House of Lords in Boys v Chaplin.61 In that case, the plaintiff and the defendant were normally resident in England but temporarily stationed in Malta as part of the British forces there. They were involved in an accident in Malta, caused by the defendant’s negligence. In issue in that case was the question of whether the plaintiff could recover for pain and suffering. Under the law of England, which was the forum, this head of damage was recoverable. Under the law of Malta, the place of accident, the plaintiff was restricted to actual financial loss. Lord Wilberforce favoured the application of English law, saying:62 The issue, whether this head of damage should be allowed, requires to be segregated from the rest of the case, negligence or otherwise, related to the parties involved and their circumstances, and tested in relation to the policy of the local rule and of its application to these parties so circumstanced. So segregated, the issue is whether one British subject, resident in the United Kingdom, should be prevented from recovering, in accordance with English law, against another British subject similarly situated, damages for pain and suffering which he cannot recover under the rule of the lex delicti … The rule limiting damages is the creation of the law of Malta, a place where both plaintiff and defendant were temporarily stationed. Nothing suggests that the Maltese state has any interest in applying this rule to persons resident outside it or in denying the application of the English rule to these parties. No argument has been suggested why an English court, if free to do so, should renounce its own rule. That rule ought, in my opinion, to apply.

The reasoning illustrates the weakness of interest analysis. It seems arrogant for an English court to determine what the policy of the Maltese state is. Furthermore, it is guesswork at best. What is certain is that if the matter had been litigated in Malta, the courts of that country would not have hesitated to apply the Maltese rule. Consequently the plaintiff by bringing suit in England gained an advantage. The reasoning also raises more questions: would, for instance, the conclusion have been the same if the defendant had been driving a vehicle insured in Malta at a premium calculated to meet the liabilities that Maltese law imposes? Or if the defendant had been a Scottish soldier? In other words, the outcome may vary depending on the facts of each individual case. [page 304]

12.17 The same criticism can be made of the Australian cases in which interest analysis on the lines of Lord Wilberforce’s reasoning in Boys v Chaplin was used. In Kemp v Piper63 the plaintiff brought action in South Australia in respect of the death of her husband, who had been killed in a motor accident in Victoria as a result of the negligence of the defendant who was driving the car. At the time of the accident both the deceased and the defendant were resident in South Australia, although the plaintiff moved to Western Australia a year later. Under South Australian law the plaintiff in an action for wrongful death could then recover: (a) financial loss resulting from the death of the deceased; (b) funeral expenses; and (c) ‘such a sum not exceeding $1400 as the court thinks just by way of solatium for the suffering caused to the wife or husband by such death’.64 Under the law of Victoria only financial loss was recoverable. The South Australian Supreme Court applied the law of that state. Bray CJ explained his decision partly on the ground that:65 … as the plaintiffs, the deceased and the defendant were all, at the relevant time, domiciled or resident in South Australia, there is no reason to suppose that Victoria has any interest in applying its own denial of these remedies to the parties and no reason why the South Australian courts should renounce its own rules.

Another notable example of interest analysis is found in the reasoning of Adam J in Corcoran v Corcoran.66 In that case, a wife sued her husband in Victoria for injuries received through his negligence in a motor accident in New South Wales. Victoria had enacted legislation abolishing interspousal immunity. New South Wales had only abolished such immunity as regards accidents arising out of the use of a motor vehicle registered in New South Wales. The vehicle in question was registered in Victoria. Adam J considered the policies involved as follows:67 … one finds … without much difficulty a policy evident in the New South Wales legislation which would favour the allowing of this action in Victoria between the Victorian husband and wife driving a Victorian car. From the New South Wales legislation, it is clear that the legislature there has thought it proper to relax the old doctrine of interspousal immunity when the result of it would be injustice to the wife without any benefit to the husband. One can readily enough understand a general policy of discouraging litigation between husband and wife in tort because of the wider interests involved if these actions were allowed without restraint. The policy of the New South Wales legislature is to allow these actions, where by the requirements of its legislation the husband’s car is subject to a policy of compulsory third party insurance in New South Wales and accordingly there will in substance be no question of personal litigation between husband and wife. In such a case there is no reason founded on public policy for denying to a spouse the right to sue the other spouse for damages sustained by wrongful conduct. The same policy which lies behind the New South Wales legislation, which in terms is locally confined to a case where the motor vehicle concerned is registered in New South Wales is effectuated in Victoria, although in general terms, by its legislation which, inter alia, operates to

[page 305] remove any bar to one spouse suing the other for damages in tort where the motor vehicle is registered in Victoria with the like consequences of a compulsory third-party insurance … To allow Victorian law to govern the matter so far from contravening the policy of the New South Wales legislation promotes it.

Once again, the result was the application of the law of the forum, in this case, the law of Victoria. It is clear that a New South Wales court would have come to a different conclusion, had it been the forum.68 The interest analysis method as used by the judges has the risk of becoming an ad hoc decision in the circumstances of each case, whether the law of the forum displaces the foreign law or not. In Boys v Chaplin,69 Lord Wilberforce spoke of the need to reconcile the demand for flexibility in the interest of individual justice with the demand for certainty in the law. The latter is a consideration which can be attained. The former is often an unattainable dream. 12.18 From the series of High Court decisions in Breavington v Godleman,70 McKain v RW Miller & Co (SA) Pty Ltd,71 Stevens v Head,72 John Pfeiffer Pty Ltd v Rogerson73 and Regie National des Usines Renault SA v Zhang74 two conclusions can be drawn: (a) The High Court favours, at least in formulation, the traditional multilateral approach to choice of law. The majority in McKain v RW Miller & Co (SA) Pty Ltd rejected the interest analysis method adopted by Lord Wilberforce, at least in relation to torts committed in Australia,75 and restated the law in John Pfeiffer Pty Ltd v Rogerson and Regie National des Usines Renault SA v Zhang by adopting a traditional jurisdiction-selecting rule. It is fair to conclude that the High Court has opted for certainty in the law over the demand for flexibility in the interest of individual justice.76 (b) Although the High Court formerly favoured the maintenance of the traditional loopholes, which have made a multilateral solution unattainable, its decisions in John Pfeiffer Pty Ltd v Rogerson and Regie National des Usines Renault SA v Zhang eschewed widespread use of those loopholes by rejecting the ‘flexible exception’ to the tort choice-of-law rule. The majority in McKain v RW Miller & Co (SA) Pty Ltd and Stevens v Head gave broad scope to matters of procedure, which are governed by the law of the forum, with the result that Australian jurisdictions were free to extend their local policies as regards limitation of actions and the limitation of recovery of damages to torts committed elsewhere in Australia. In contrast, the majority

in John Pfeiffer Pty Ltd v Rogerson took multilateralism within Australia to its logical conclusion by subjecting all issues that would affect the outcome of the proceedings to the law governing the main [page 306] issue.77 The court also refused to adopt the ‘flexible exception’ to the lex loci delicti rule for choice of law in torts,78 again preferring certainty to flexibility.

The Objectives of Choice-of-Law Rules 12.19 Choice-of-law rules seek to meet a number of objectives. Generally speaking, they are not concerned with the protection or application of governmental interests. Exceptions exist where a governmental interest is directly involved as in state immunity, or where a statute expressly or by necessary implication asserts a governmental interest, as will be discussed further below. But primarily the conflict of laws is concerned with the reconciliation of private interests and expectations.79

The reasonable expectations of the parties 12.20 For that reason the first objective of a choice-of-law rule should be to meet the reasonable expectations of the party or parties to the transaction.80 By and large, the existing common law rules meet that objective. Thus, parties will expect their contractual rights to be defined by the law they have chosen, or, in default of choice, by the legal system that has the closest connection with the contract. They will expect that the legal consequences of a tortious act will be governed by the law of the place where the tort is committed.81 A testator will expect his or her estate to be divided according to the law of the place where he or she was last habitually resident or domiciled. The notable exceptions arise in cases where for pragmatic, historical or simply judicial chauvinistic reasons those rules have been modified or distorted in favour of the law of the forum. An example of the first category is the public policy reservation that can be found in each legal system, which allows the forum to suspend the usual choice-of-law rule where its application would

conflict with its own policy. An example of the second category is the refusal of English courts to enforce foreign revenue laws, allegedly to support English traders seeking to circumvent the protective mercantilist systems in the Europe of the eighteenth century. [page 307]

Uniformity of result 12.21 The second objective of a choice-of-law rule must be the avoidance of forum shopping, or to put it in another way, to ensure that whatever forum is chosen, the outcome remains the same.82 This really flows from the first goal: the reasonable expectations of the parties are defeated if the plaintiff can gain an advantage through the choice of forum. However, this objective is not easily attainable at the international level. The procedural law of the forum may distort the outcome. More importantly, different legal systems have different choice-oflaw rules and connecting factors, such as nationality instead of domicile. For that reason Australia’s participation in the work of the Hague Conference on Private International Law on drafting uniform choice-of-law rules is important. The goal of uniformity of outcomes can be achieved within a federation, such as Australia, where the legal systems and choice-of-law rules are essentially the same. In that situation it should be the objective of the courts in framing or reframing choice-of-law rules within the federation to ensure ‘that there should only be one body of state law determining the legal consequences attaching to a set of facts occurring in a state’.83

Organic interpretation 12.22 This then leads to the third objective: within a federation, choice-of-law rules should be framed in such a manner that they form an organic whole, thereby avoiding the conflict of laws.84 This means that courts interpreting common law choice-of-law rules or defining the ambit of statutes should, where possible, refrain from a construction which would lead to conflicting results, or as happened at first instance in Koop v Bebb,85 unwarranted gaps occurring in the ambit of legislation which has its counterpart in every state. Here private and state interests join together; neither is served, except on a very short-term

opportunistic basis, by such a conflict or gap. [page 308]

Localising laws 12.23 This does not mean that interest analysis is completely precluded. The legislature of the forum may declare its policy on the extraterritorial application of a statute expressly. In that case the courts of the forum have no option but to apply that policy as so declared. For example, the Carriage of Goods by Sea Act 1991 (Cth) enacts into Australian law an internationally agreed upon set of rules governing the conditions upon which goods are to be carried in international shipping, generally known as the Hague-Visby Rules (but referred to in the Act as ‘the amended Hague Rules’). To ensure that these rules are applied to all contracts for the shipment of goods out of Australia, s 11(1) of the Act provides that the parties to a sea carriage document for the carriage of goods from any place in Australia to any place outside Australia shall be deemed to have contracted according to the law of the place of shipment, notwithstanding any agreement to the contrary. This means that an Australian court, when faced with a bill of lading for the shipment of goods from Sydney to France, in which it is stipulated that French law shall govern the contract, must nevertheless apply the law of New South Wales, including the terms and conditions laid down in the Carriage of Goods by Sea Act 1991 (Cth), as the proper law of the bill of lading.86 This is an example of what Cavers has called ‘localised laws’, that is: … substantive laws of the enacting state which are limited by their terms either (1) to certain events or transactions within the enacting state or (2) to certain persons connected with that state in a specified way, even though the acts or events involving them occur outside the state.87

Most statutes lack ‘localising’ provisions. As Kelly pointed out in his very thoughtful monograph, Localising Rules in the Conflict of Laws,88 Australian courts have tended to resolve the problem by using the multilateral ‘jurisdictionselecting’ general choice-of-law rules without inquiring into the actual policy of the statute concerned. To give an example, reference may be made to the High Court decision in Wanganui-Rangitikei Electric Power Board v AMP Society.89 In that case the appellant board was a New Zealand local authority, which had borrowed money in New South Wales on debentures payable in New South

Wales. During the Great Depression the New South Wales Parliament had passed the Interest Reduction Act 1931 which reduced the interest payable on all loans and mortgages. This Act did not contain a ‘localising’ provision and consequently the court sitting on appeal from New South Wales, which was therefore the forum, had to determine whether the New South Wales Act applied to this particular transaction. A majority of the court held that the Act did not apply to the transaction. Dixon J explained his decision in the following words:90 [page 309] The rule is that an enactment describing acts, matters or things in general words, so that, if restrained by no consideration lying outside its expressed meaning, its intended application would be universal, is to be read as confined as to what, according to the rules of international law administered or recognized in our Courts, it is within the province of our law to affect or control. The rule is one of construction only, and it may have little or no place where some other restriction is supplied by context or subject matter. But, in the absence of any counteracting consideration, the principle is, I think, that general words should not be understood as extending to cases which, according to the rules of private international law administered in our Courts, are governed by foreign law.

Such a general principle has obvious merit. It avoids the intrusion of the law of the forum in a manner that would upset the reasonable expectations of the parties. By the same token, the application of the ordinary rules of choice of law would tend to ensure that the outcome would not depend on the choice of forum, certainly as between Australia and New Zealand. If applied within Australia, it would mark out a reasonable and predictable sphere of application for the law of each constituent unit. However, to a general principle there are always exceptions, as Dixon J acknowledged in the passage cited. The court should not adopt a demarcation based on the common law rules where to do so would defeat the purpose of the legislation of the forum by making it easy to circumvent. For example, in Kay’s Leasing Corp v Fletcher,91 the High Court had to consider the ambit of two sections of the Hire Purchase Agreements Act 1941 (NSW). Section 26C specified certain minimum hiring charges, while s 31 provided that a vendor entering into a hire purchase agreement should first obtain a deposit of a stated amount. In each case non-compliance rendered the agreement void. The agreement before the court had been made in Victoria between a Victorian vendor and buyers who were resident in New South Wales where the goods were

intended to be used. The agreement contained a clause selecting the law of Victoria as the proper law. It did not comply with the above-mentioned provisions of the New South Wales Act. The New South Wales Full Court had applied the presumption that the provisions only applied to agreements the proper law of which was the law of New South Wales.92 On appeal, the High Court disapproved of that approach. As Kitto J said:93 Where a provision renders an agreement void for non-compliance by the parties or one of them with statutory requirements, especially where the requirements can be seen to embody a specific policy directed against practices which the legislature has deemed oppressive or unjust, a presumption that the agreements in contemplation are only those of which the law of a country is the proper law according to the rules of private international law has no apparent appropriateness to recommend it, and indeed … it would produce a result which the legislature is not in the least likely to have intended.

The court therefore proceeded to hold that the sections applied to all contracts made in New South Wales. It is highly debatable whether this rule gave effect to the court’s stated policy to discourage evasion, but it illustrates the proposition that the application of the general presumption that the ambit of a statutory rule is also [page 310] defined by the common law choice-of-law rules, must not be allowed to defeat the purpose of the statute. However, it is only when the policy of the legislature of the forum is discernible, that the court should engage in an interest analysis approach. The forum would not normally be concerned with the question of whether a foreign or interstate statute had extra-territorial operation, unless the latter question arose under cross-vested jurisdiction.94 But if the foreign or interstate statute did not purport to deal with all matters falling within its domain, the question of interpretation and construction of that statute might arise, if it had not already been done by an authoritative court or tribunal within that state or country. It may then also become necessary to determine what part of the law of that foreign country or state is applicable to situations not covered by the statute. Thus, in Breavington v Godleman the Northern Territory statute in question abolished the right to receive damages in respect of a motor vehicle accident only for residents of the Territory. If the plaintiff in that case had been a Victorian tourist, the law of the Territory would still have been applicable. But

under that law the plaintiff would still be entitled to his common law cause of action. In Corcoran v Corcoran the application of the law of the place of the wrong would have led to the conclusion that the spouses were prevented from suing each other under the common law immunity which New South Wales had not abolished for spouses driving cars registered outside the state. That result could only be avoided, not by considering the policy of New South Wales, but by considering the policy of the Victorian forum: did its statute purport to abolish the rule only in respect of torts occurring in the state or in respect of spouses resident or domiciled in the state? In the similar situation in Warren v Warren95 Matthews J took the latter view. ____________________ 1.

See Cheshire, North and Fawcett, Private International Law, 14th ed, Oxford University Press, Oxford, 2008, Ch 2.

2.

See Dicey, Conflict of Laws, 5th ed, Sweet & Maxwell, London, 1932, pp 17, 43.

3.

Beale, Treatise on the Conflict of Laws, Baker, Voorhis, New York, 1935, p 1967, s 73.

4.

See note 3 above, p 1968, note 25.

5.

L Brilmayer, Conflict of Laws, 2nd ed, Little, Brown and Co, Boston, 1995, pp 31, 38.

6.

194 US 120 at 126 (1904).

7.

The person most often associated with opposition to the vested rights theory is Walter Wheeler Cook. See WW Cook,‘ The Logical and Legal Bases of the Conflict of Laws’ (1924) 33 Yale LJ 457.

8.

Brilmayer, note 5 above, p 40.

9.

OW Holmes, ‘ The Path of the Law’, Collected Legal Papers, Harcourt, Brace and Co, New York, 1921, pp 167, 173, 310, 313.

10. See John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 528; 172 ALR 625 at 638, at [44] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ for a statement of the same goal in an intraAustralian context. 11. [1969] 1 AC 33 at 60–8. See also Juenger, Choice of Law and Multi-state Justice, Martinus Nijhoff, The Hague, 1993, pp 73–87, who points out the difficulties in the way of ‘decisional harmony’. 12. (1951) 84 CLR 629 at 643, 644 per Dixon, Williams, Fullagar and Kitto JJ: contra McTiernan J. 13. (1988) 169 CLR 41; 80 ALR 362. 14. See note 13 above (CLR) at 128. 15. See note 13 above (CLR) at 160. 16. (2000) 203 CLR 503 at 526–7; 172 ALR 625 at 637, at [39]–[40] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 17. (2003) 218 CLR 330 at 340–1; 203 ALR 189 at 195–6, at [24] Gleeson CJ, Gummow, Hayne and Heydon JJ. 18. JP Trachtman, ‘Conflict of Laws and Accuracy in the Allocation of Government Responsibility’ (1994) 26 Vanderbilt J of Transnat’l L 975 at 993. 19. Cook, The Logical and Legal Bases of the Conflict of Laws, Harvard University Press, Cambridge,

1942, p 20 and note 7 above. 20. See note 19 above, p 20. In a famous piece of satire, Cavers lampooned this theory by likening it to his four-year-old son’s first encounter with tuna. The son asked ‘Isn’t that chicken?’, and on being told that no, it was fish, he restored his world to order by remarking, ‘Fish made of chicken’. See Cavers,‘ The Two “Local Law” Theories’ (1950) 63 Harv L Rev 822 at 823. 21. (2000) 203 CLR 503 at 526–7; 172 ALR 625 at 637, at [39]–[40] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 22. (1951) 84 CLR 629 at 643, 644 per Dixon, Williams, Fullagar and Kitto JJ: contra McTiernan J. 23. A Critique of the Choice of Law Problem’ (1933) 47 Harv L Rev 173. 24. Ehrenzweig, Treatise on the Conflict of Laws, West, New York, 1962, p 446; Ehrenzweig, Private International Law, Leydon, New York, 1967, vol 1, pp 86–8. See also Leflar, ‘ True “False Conflicts” et Alia’ (1968) Boston U L Rev 164. 25. Ehrenzweig, 1962, p 310; Ehrenzweig, 1967, vol 1, p 87. 26. (1951) 84 CLR 629. 27. Currie, Selected Essays on the Conflict of Laws, Duke University Press, Durham, 1963. Cavers, in his The Choice of Law Process, University of Michigan Press, Ann Arbor, 1965, uses the term ‘false conflict’. 28. See Kay, ‘ Theory into Practice: Choice of Law in the Courts’ (1983) 34 Mercer L Rev 521. 29. See Brilmayer, ‘Interest Analysis and the Myth of Legislative Intent’ (1980) 78 Mich L Rev 392; Rosenberg, ‘ The Comeback of Choice of Law Rules’ (1981) 81 Colum L Rev 946; Juenger, ‘Conflict of Laws: A Critique of Interest Analysis’ (1984) 32 Am J of Comp Law 1; Brilmayer, ‘Jurisdictional Due Process and Political Theory’ (1987) 39 U Fla L Rev 293; Juenger, Choice of Law and Multi-state Justice, 1993, pp 131–9. 30. (2002) 210 CLR 491 at 516–17; 187 ALR 1 at 17–18, at [63]–[65] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 31. See note 30 above, quoting Walsh, ‘ Territoriality and Choice of Law in the Supreme Court of Canada: Applications in Products Liability Claims’ (1997) 76 Can Bar Rev 91 at 109–10. 32. See Cavers, 1965. 33. Ehrenzweig, 1962, Ch IV. 34. See ‘The “Most Significant Relationship” in the Conflicts Law of Torts: Law and Reason v The Second Restatement’ (1963) 28 Law and Contemp Problems 700; ‘ The Second Conflicts Restatement: A Last Appeal for its Withdrawal’ (1965) 113 U Pa L Rev 1230; ‘False Conflicts and The Better Rule; Threat and Promise in Multi-State Tort Law’ (1967) 53 Va L Rev 847; ‘Foreign Guest Statutes and Foreign Accidents: Against the Desperanto of State Interests’ (1968) 68 Colum L Rev 49; ‘ The Not So “Proper Law of a Tort”: Pandora’s Box’ (1968) 17 ICLQ 17. 35. There probably is in Australia; see Christofaro v Christofaro [1948] VLR 193. 36. Luder v Luder [1964] ALR 3. Ehrenzweig, Private International Law, 1967, vol 1, p 103 calls this a ‘bi-focal’ interpretation of the domestic rule. 37. (1939) 62 CLR 68. 38. Juenger, 1993, p 104. 39. McDougal, Felix and Whitten, Leflar’s American Conflicts Law, LexisNexis, 5th ed, 2001, p 359. The five considerations are considered in detail at [94]–[99], pp 359–72. See also the Symposium on Leflar’s work in (1999) 52 Ark L Rev 1–232.

40. Juenger, Choice of Law and Multistate Justice, 1993, p 119. 41. Corcoran v Corcoran [1974] VR 164; Warren v Warren [1972] Qd R 386. 42. Babcock v Jackson, 12 NY 2d 473 (1963); McLean v Pettigrew [1945] 2 DLR 65. 43. Stevens v Head (1993) 176 CLR 433; 112 ALR 7. 44. See Chapter 14. 45. In each of the cases referred to in notes 41 to 43 above, the forum by various stratagems managed to avoid the application of the ‘obnoxious’ law. 46. Juenger, 1993, p 173. 47. [1945] Ch 5. 48. (1993) 176 CLR 433; 112 ALR 7. 49. (2000) 203 CLR 503; 172 ALR 625. 50. See Kontis v Barlin (1993) 115 ACTR 11. 51. See the debate on this issue in Opeskin, ‘ The Price of Forum Shopping: A Reply’ (1994) 16 Syd L Rev 14 at 22–4, and Juenger, ‘Forum Shopping: A Rejoinder’, 16 Syd L Rev 28 at 29–30. 52. Juenger, 1993, p 173. 53. For example, the UNIDROIT Principles of International Commercial Contracts 2010 is selfconsciously an attempt to define a body of general rules for international commercial contracts. 54. Juenger, 1993, p 194. 55. [1930] AC 588. 56. [1921] 1 Ch 343. 57. [1985] Fam 106. 58. Ehrenzweig, ‘Contracts in the Conflict of Laws’ (1959) 59 Col L Rev 973 at 988. 59. Kay’s Leasing Corp Pty Ltd v Fletcher (1964) 116 CLR 124. 60. (2002) 210 CLR 491 at 516–17; 187 ALR 1 at 17–18, at [63]–[65] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 61. [1971] AC 356. 62. See note 61 above, at 392. 63. [1971] SASR 25. 64. Wrongs Act 1936 (SA) s 23(b) (now repealed). 65. 1971] SASR 25 at 29. 66. [1974] VR 164. 67. See note 66 above, at 171. 68. Zussino v Zussino (1969) 71 SR (NSW) 24. 69. [1971] AC 356 at 389. 70. (1988) 169 CLR 41; 80 ALR 362. 71. (1991) 174 CLR 1; 104 ALR 257. 72. (1993) 176 CLR 433; 112 ALR 7. 73. (2000) 203 CLR 503; 172 ALR 625.

74. (2002) 210 CLR 491; 187 ALR 1. 75. (1991) 174 CLR 1 at 38–9 per Brennan, Dawson, Toohey and McHugh JJ. 76. Breavington v Godleman (1988) 169 CLR 41 at 113 per Brennan J. 77. (2000) 203 CLR 503 at 544; 172 ALR 625 at 651 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. See Chapter 16. 78. See Chapter 22. 79. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 536–7; 172 ALR 625 at 645, at [75] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 80. See Cavers, 1965, pp 139–80. His argument was expanded by Twerski, ‘Enlightened Territorialism and Professor Cavers — The Pennsylvania Method’ (1971) 9 Duq L Rev 373. Kramer, in ‘Rethinking Choice of Law’ (1990) 90 Colum L Rev 277 at 336, objects on the ground that the existence of reasonable expectations is not an objective question, but masks ‘normative judgments reflecting what a court believes the parties ought to expect’. This is true; the issue is not what a particular party subjectively might have expected, but what is a reasonable expectation. 81. See Nygh, ‘ The Reasonable Expectations of the Parties as a Guide to the Choice of Law in Contract and in Tort’ (1996) 251 Rec des cours 273. 82. This objective was adopted by the Australian Law Reform Commission as ‘a main objective of reform’: Choice of Law, Australian Law Reform Commission, Sydney, 1992, para 2.4. See also John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 528; 172 ALR 625 at 638, at [44] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491 at 533–34; 187 ALR 1 at 32, at [118] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Neilson v Overseas Projects Corp of Victoria Ltd (2005) 223 CLR 331 at 363; 221 ALR 213 at 235–36, at [90], per Gummow and Hayne JJ, CLR 388; ALR 256, at [172] per Kirby J. 83. Breavington v Godleman (1988) 169 CLR 41 at 98; 80 ALR 362 at 387 per Wilson and Gaudron JJ. ‘Anything less is not appropriate within the boundaries of a single nation’: Choice of Law, ALRC, 1992. 84. The same purpose was sought to be achieved by Deane J in Breavington v Godleman (1988) 169 CLR 41 at 135; 80 ALR 362 at 415, but in a manner that would constrain the legislative power of the states: see Ch 2, above. Here the purpose is advocated as a goal rather than a limit; cf in the United States: Baxter, ‘Choice of Law and the Federal System’ (1963) 16 Stan L Rev 1. Kramer, ‘Rethinking Choice of Law’ (1990) 90 Colum L Rev 277 at 323, proposes a ‘comparative impairment canon’ whereby the court should avoid a solution which would render the application of one of the conflicting interstate laws practically ineffective. 85. (1951) 84 CLR 629. 86. Compagnie des Messageries Maritimes v Wilson (1954) 94 CLR 577, a decision involving the similar provision of s 9(1) of the Sea-Carriage of Goods Act 1924 (Cth). 87. Cavers, The Choice of Law Process, 1965, p 226. 88. D Kelly, Localising Rules in the Conflict of Laws, Woodley Press, Adelaide, 1974. 89. (1934) 50 CLR 581. 90. See note 89 above, at 601. 91. (1964) 116 CLR 124. 92. Kay’s Leasing Corp v Fletcher (1964) 64 SR (NSW) 195. 93. (1964) 116 CLR 124 at 143. 94. See Chapter 6.

95. [1972] Qd R 386.

[page 311]

Chapter 13

Personal Connecting Factors: Domicile, Nationality and Residence 13.1 A ‘personal law’ has an ancient history going back to the very beginnings of the law of conflicts. The term ‘personal law’ is used because the applicable law is supposed to follow the person concerned rather than varying with the place where that person may be from time to time or where that person’s property may happen to be. In the modern law of conflicts the emphasis placed on the ‘personal law’ varies between legal systems, but it would be correct to say in a very general sense that questions of status, resulting capacity and certain aspects of succession are most commonly subjected to a personal regimen. It is especially in the field of family relationships that the ‘personal law’ assumes its greatest importance. Thus, if a German family were to visit Australia as tourists, the question whether their children have the capacity to marry should not be decided solely by reference to local standards, nor should the spouses gain a greater facility for casting off the marital tie by the fact of their temporary presence here. Australian courts should refer such questions, if they arise, to the law and to the courts of the legal system which has greater relevance to them, in this case the law of Germany. 13.2 There are several methods of determining the personal relevance of a system of law which applies over a geographical area. The oldest of them is domicile, which until recently was the sole test employed in common law countries. Most countries in Europe and many in Asia, Africa and Latin America have adopted the test of nationality. Neither of these tests has been found satisfactory and in recent years international conventions have tended to use the more flexible concept of ‘habitual residence’, although the European Union Council Regulation 44/2001 governing jurisdiction within the European Union is

an important exception that makes extensive use of the concept of domicile. 13.3 In Australia today, domicile is still the most important test of personal connection. However, the High Court has recently described the concept of domicile as ‘an idea of law’, which requires the court to engage in an examination of ‘distasteful problems of … the uncertainties of meaning and proof of subjective [page 312] intent’.1 For that reason, the more objective concepts of nationality and habitual residence have recently come to be accepted by statute and international conventions as more reliable and predictable connecting factors. Nevertheless, this chapter is mainly concerned with the meaning of domicile, which maintains its position of preeminence for the time being, at least. The chapter also includes short discussions on nationality and residence.

Domicile The Domicile Acts 13.4 The law relating to domicile in Australia is now largely governed by statutes which do not replace the common law but modify it in important respects.2 Domicile Acts in identical terms were passed by each of the states, the Northern Territory and the Commonwealth.3 The legislation came into effect on 1 July 1982. The statutory rules apply whenever a domicile has to be determined at a time on or after 1 July 1982, on the basis that the legislation has always been in force. Thus, if an Australian court had to determine whether a person died domiciled in New South Wales on 1 August 1982, that domicile must be determined by reference to the statutory rules even if it means giving legal effect to conduct and events which took place before 1 July 1982.4 But if the relevant date at which the domicile has to be determined is before the commencement of the Act, that domicile is to be determined as if the Act had never been passed.5 For example, in Parnell-Schoneveld v Repatriation Commission,6 Jacobson J of the Federal Court of Australia applied common law principles to decide whether two

applicants were domiciled in Australia when interned by the Japanese in Singapore during World War II, in order to decide whether the applicants were entitled to compensation under the Compensation (Japanese Internment) Act 2001 (Cth). Certain reforms to the law of domicile were made by the Family Law Act 1975 (Cth) s 4(3) and the Marriage Act 1961 (Cth) s 5(4) prior to 1 July 1982, notably in relation to the domicile of married women for the purposes of those statutes only. Those provisions were repealed by the Domicile (Consequential Amendments) Act 1982 (Cth), but by [page 313] virtue of s 5(1) of the Domicile Act 1982 (Cth), they must be treated as still operative if the domicile of a woman who is or was married has to be determined for the purposes of those statutes as it was at a date prior to 1 July 1982.

The function of domicile 13.5 The function of domicile was described by Holmes J in Williams v Osenton7 in the following terms: The very meaning of domicil [sic] is the technically pre-eminent headquarters that every person is compelled to have in order that certain rights and duties that have attached to it by the law may be determined.

Two basic assumptions underlie this statement. The first assumption is that every person must at every stage of his or her life have a domicile. If a person is not legally capable of acquiring a domicile, or has not voluntarily settled indefinitely in any place, a domicile must be assigned to that person by operation of law. The second assumption is that a person cannot simultaneously have more than one domicile for the same purpose.8 A person can have more than one residence, but not more than one ‘pre-eminent headquarters’. These two rules are essential to the proper operation of the relevant choice-oflaw rules. As long as our courts continue to refer matters of matrimonial law and succession to the law of the domicile, it will remain necessary to ensure that the affairs of each and every person can be placed neatly in one particular pigeon hole. Our courts would not tolerate a situation which meant either that several

laws could be applicable to the same problem or that none was applicable.

The area of domicile 13.6 The area of domicile is commonly referred to as a ‘country’, which in conflictual terms is any geographical area which has both a common government and a common legal system or unity of law. A federation includes within it as many ‘countries’ as make up its constituent states and territories.9 It is possible for a non-federal state to contain several countries such as the United Kingdom where England (including Wales), Scotland and Northern Ireland each have a different legal system and therefore constitute separate ‘countries’. This is also the meaning attached to ‘country’ under the Domicile Act 1982 (Cth) s 4(1). In some countries, the applicable law may vary depending on the race or religion of a person. In many Asian countries, for instance, matrimonial or succession laws may vary depending on whether the person concerned is a Muslim, Buddhist, Christian or Jew. In such cases, the area of domicile is the geographical entity that forms the country. One can be domiciled in Egypt but not in Islam. The law of the domicile, in turn, determines whether a person by reason of membership of any particular community is the subject of a special legal system.10 [page 314] 13.7 The requisite connection is with the country as a whole and not with any particular part thereof. Thus, a person who moves from place to place within a particular country may yet be held to have acquired a domicile there provided there is an intention to remain in that country indefinitely.11 However, the absence of a fixed abode may lead a court to infer there was no such intention.12 A change in the borders of a country may, however, compel a court to determine whether the person concerned had any special connection with any particular part of that country. For instance, in Attorney-General v McLean,13 the deceased had resided in the Darling Downs District at the time of the separation of Queensland from New South Wales. Did his domicile change with the political change without any further action on his part? As it turned out, it was not necessary for the court to decide this question, but on principle it would seem that a person’s domicile changes automatically to that of the country of

which his or her place of residence now forms part. This was the view of Martin CJ.14 Faucett J suggested that the deceased had the option of retaining his existing domicile but only if he had removed his residence to an area which remained part of New South Wales within a reasonable time.15 But, it is submitted, this draws a false analogy between the rules applicable to nationality and those relating to domicile.16

Domicile in a federation or union 13.8 It was once thought that a federation or union could not be a ‘country’ as it had no unity of law on questions that are governed by the law of domicile.17 However, today there exists unity of law as to several important matters that depend on domicile in Australia. The combined effect of the Family Law Act 1975 (Cth) and Marriage Act 1961 (Cth) has been to unify matrimonial law throughout Australia at the federal level. These statutes speak of persons being domiciled in Australia.18 There is no doubt that they create an Australian domicile that is distinct and separate from a state or territorial domicile.19 13.9 The Domicile Acts recognise that in such a case a person is domiciled both in the federation or union as a whole, and in one of its constituent parts. The term ‘union’ is broadly defined in s 4(1) of the Domicile Act as meaning ‘any country that is a union or federation or other aggregation of two or more countries, and includes Australia’. Hence, it would include not only true federations such as Australia and Canada, but also quasi-federations such as the European Union to the extent that a unity of law has been established therein, as well as unitary states with more than one legal system such as the United Kingdom. [page 315] Section 11 of the Domicile Act 1982 (Cth)20 provides that a person ‘who is, in accordance with the rules of the common law relating to domicile as modified by this Act, domiciled in a union, but is not, apart from this section, domiciled in any particular one of the countries that together form the union, is domiciled in that one of those countries with which he has for the time being the closest connection’. This overcomes the problem that arose in Re Benko.21 In that case, a migrant

whose domicile of origin was Hungarian arrived in Australia with the intention of remaining in this country permanently. He arrived in Melbourne in April 1950 and went to Adelaide in June of the same year. The question before the court was whether he had abandoned his domicile of origin in August 1950. Mitchell J found that at that time he had no settled intention to remain in South Australia permanently. It was argued that his undisputed intention to remain in Australia permanently was sufficient to enable him to abandon his Hungarian domicile of origin. Her Honour held, however, that other than for the purposes of matrimonial law, there was no Australian domicile recognised by the law. Accordingly, in the absence of his acquisition of a domicile in a particular state, his Hungarian domicile of origin continued to exist. If s 11 had been applicable at the time, Mitchell J, after finding that Mr Benko had acquired an Australian domicile, would then have looked for the state or territory with which he had at the relevant time the closest connection. In August 1950 that clearly would have been South Australia where he was then living. Since, apart from the decision in Re Benko, the point is devoid of authority at common law, it is submitted that even in relation to a person whose domicile has to be determined at a date prior to 1 July 1982, the principle as set out in s 11 should be followed in order to avoid the strange result reached by her Honour.22 Needless to say, s 11 also applies to the question that an Australian court may have to determine from time to time, whether a person has acquired a domicile in a foreign federation or part thereof. Thus, a person who has settled in Canada as a whole must also be allocated a domicile in one of its provinces or territories.

The three types of domicile distinguished 13.10 The rules relating to the acquisition and loss of domicile varied at common law with each type of domicile. Some domiciles are acquired independently of volition, others are acquired as a result of the exercise of conscious choice, while the domicile acquired at birth occupied a peculiar and privileged position at common law. A domicile of origin is that domicile which is ascribed to each individual at birth by force of law. A domicile of dependence, sometimes called a domicile by operation of law, is the domicile of a person who lacks the capacity to acquire a domicile for him or herself and whose domicile is determined by reference to that of another person such as a

[page 316] husband or parent. At common law married women, minors and persons lacking the necessary mental capacity fell into this category. A domicile of choice is the domicile that a person of independent capacity acquires as the result of a voluntary choice of a new place of residence.23

Domicile of origin 13.11 At common law the domicile of origin occupied a peculiar position. It could be displaced by the acquisition of a domicile of choice, but it could never be entirely abandoned. As Lord Chelmsford said in Udny v Udny:24 ‘ The domicile of origin always remains, as it were in reserve, to be resorted to in case no other domicile is found to exist’. Thus, a person on abandoning a domicile of choice without acquiring a new one would revert to the domicile of origin even though he or she might have no intention of ever returning to the country of origin. The Domicile Acts have abolished the rule of revival and replaced it with the rule that the existing domicile whether acquired by choice or by dependence continues until a new domicile is acquired.25 This in effect deprives the domicile of dependence acquired at birth of any significance to justify its distinction from other dependent domiciles. However, the domicile of origin and the rule of revival will still be relevant when the domicile of a person has to be determined as at a date prior to 1 July 1982.26

Assigning a domicile of origin 13.12 The Domicile Acts deal only with the domicile of children whose parents have separated or died. Hence the common law rules continue to apply to determine the domicile of origin in other cases. At common law a nuptial child takes the domicile of its father at birth, an exnuptial child that of its mother, and a foundling that of the place where it was born or found.27 Those basic rules may have been affected in all jurisdictions other than Western Australia by the Status of Children Acts. This legislation provides that ‘the relationship between every person and his or her father and

mother shall be determined irrespective of whether the father or mother are, or have been, married to each other’.28 This has been interpreted to mean that ‘the putative father occupies the same position in law in relation to his natural child as he does to a child born in [page 317] wedlock’.29 If this view is correct, the result at common law must be that in all states and territories, other than Western Australia, an ex-nuptial child, like a nuptial child, takes the domicile of its father at birth regardless of marital status. Whatever may be the position elsewhere in Australia, there is no doubt that in Western Australia the common law rule has continued to apply. The Status of Children Acts contain provisions dealing with the situation where a woman bears a child either as a result of artificial insemination from donor sperm, or as a result of implantation in her womb of a fertilised ovum from herself or another woman. Western Australia makes similar provision in the Artificial Conception Act 1985 (WA). In all jurisdictions, the woman who bears the child is conclusively taken to be the mother, whether or not she has a partner, male or female.30 The donor of the sperm or ovum, as the case may be, is conclusively taken not to be the child’s parent, whether or not the woman who bears the child has a partner.31 If the child was born with the consent of the woman’s partner, whether male or female, the partner is conclusively taken to be the child’s parent.32 Because a male partner is conclusively taken to be the child’s ‘father’, the common law rules as modified by the Status of Children Acts will presumably apply in the same way, with the result that the child’s domicile will follow that of its father (except in Western Australia, where the distinction between nuptial and ex-nuptial children remains). A female partner is conclusively taken to be the child’s ‘parent’, not its ‘mother’. Because such a child would, by operation of the legislation, have no father, it would presumably take the domicile of the mother who actually gave birth to the child. The same result would seem to follow even more clearly in the case of a child born to a single mother as a result of artificial insemination. [page 318]

The Domicile Act 1982 (Cth) s 9(1)33 deals with the domicile of children whose parents have separated or died. If the parents are living separately and apart or one of them has died, the child acquires the domicile of the parent with whom it has its principal home after birth.34 Unless the mother dies in childbirth or gives up the child immediately to the father, the domicile of origin is likely to be that of the mother. The Domicile Act 1982 (Cth) s 9(2)35 deals with the domicile of adopted children. If the child has two adoptive parents, it has the domicile it would have if it were a child ‘born in wedlock’ to those parents. In other words, the child takes the domicile of the father, although it is not obvious what the result should be when a child is adopted by two men in a partnership. If the child has only one adoptive parent, the child takes the domicile of that parent. It seems desirable that the Domicile Acts be amended to take into account the changes in family relationships that are at least partially dealt with by the amendments to the Status of Children Acts.

Domicile of dependence Minors 13.13 At common law the domicile of a nuptial child followed that of the father and changed with him even though the child was not living with the father. There was some judicial support for the proposition that the domicile of a child whose parents were divorced and whose custody had been awarded to the mother followed that of the mother.36 In the case of an ex-nuptial child or a child whose father had died, the domicile was dependent on that of the mother.37 The effect of the Status of Children legislation, referred to in 13.12, may be to equate the position of the ex-nuptial child to that of the nuptial child giving both a domicile dependent on that of the father. In contrast to the domicile dependent on the father, there was at common law no automatic change of domicile on the part of the child if the mother changed hers. As Stirling J put it in Re Beaumont,38 the mother had an option to change the child’s domicile ‘… as the result of the exercise by her of a power vested in her for the welfare of the infants which in their interests, she may abstain from exercising even when she changes her own domicile’. Thus, when the mother married or remarried a man of foreign domicile but left the child in its original place of domicile, the courts as a rule held that the child’s domicile remained

unchanged despite the change in the mother’s domicile.39 In contrast, in ParnellSchoneveld v Repatriation Commission,40 [page 319] the court held that a widowed mother who moved herself and her child to what was then the Netherlands East Indies had acquired a new domicile of choice both for herself and for her child. 13.14 The Domicile Act 1982 (Cth) s 9(1) deals with the domicile of children whose parents have separated or died. If the parents are living separately and apart or one of them has died, the child’s domicile is dependent upon that parent with whom it has its principal home.41 This determines the child’s domicile at birth. If the child is born in the household of a sole parent, whether married or not, its initial domicile is that of the parent with whom it is living. The term ‘home’ is not defined in the legislation. It clearly is a factual description not dependent on the existence of a parenting order. It describes the child’s ordinary residence, which remains applicable even though the child may be temporarily resident elsewhere, such as on a contact visit with the other parent or while attending boarding school. Once the child has its principal home with one of its parents, the child’s domicile follows the domicile of that parent from time to time until the child moves to live with the other parent or they resume or commence cohabitation.42 No provision is made for a change of domicile in the case where the child is not living with either parent. If the child has never lived with either parent, for example it is sent to live with foster parents upon birth, the common law rules described in 13.12 apply. If the child is sent to live with relatives in another country, the child’s domicile continues to be that of the parent with whom it had its last principal home or, in the case of united parents, that of the father subject to any further changes in that parent’s own domicile. The common law might have developed more flexibly in this regard.43 13.15 Under the Domicile Acts, a child who is adopted by two persons acquires the domicile of the adoptive father as at the time of the adoption.44 Thereafter the domicile changes as if the adopters were the natural parents in the manner outlined above, in 13.13. A child adopted by one person acquires the domicile of that person as at the time of adoption.45 Thereafter its domicile changes with that of the adopter until majority. The relevant statutory provisions make it clear the

acquisition of the adoptive parent’s domicile is prospective only and does not retrospectively change the child’s domicile at earlier periods. If the adoption is rescinded, the domicile of the child thereafter is to be determined in accordance with any provisions as to domicile in the order of rescission or, failing such provision, as if the adoption had not taken place.46 Semble, the latter relates only to the determination of the domicile after rescission. 13.16 If the parent, adoptive or natural, with whom the child is living dies, the last domicile of that parent continues until and unless the child goes to live with the surviving parent, if any, or the child attains the age at which it can attain its own [page 320] capacity to acquire a domicile of choice and does so.47 This reflects the traditional common law view that the domicile of an orphan cannot be changed, not even by its guardian.48 The common law rule that a foundling starts off with a domicile in the place where it is found is unaffected by the Domicile Acts. The legislation is silent as to the unborn child. At common law it was held in Re Callaghan (deceased)49 that it took the domicile of its father. No doubt that will continue to be the primary rule with the proviso that if the parents are separated, even at that time, the child’s domicile will be that of the mother with whom it of necessity lives. 13.17 The legislation provides that dependency of a minor terminates upon the attainment of the age of 18 years or upon marriage, whichever is the sooner.50 At common law emancipation came at the attainment of the age of majority, which was 21 years. This was reduced by legislation from 1970 onwards to 18 years in the states and territories.51 At common law a minor was not emancipated by marriage. A woman who married a minor in effect acquired her father-in-law’s domicile.52 If she was still a minor at the time her marriage was dissolved by death or divorce, she had no capacity to acquire a domicile of her own, but her domicile remained either unchanged or reverted to that of her father if he was still alive.53 Upon termination of the dependency, the domicile that the minor had immediately before marriage or attaining the age of 18, as the case may be, continues until a domicile of choice is acquired.54 This accords with the common

law position.55

Married women 13.18 The Domicile Acts abolish the common law rule whereby a married woman had at all times the domicile of her husband.56 The domicile of a married woman must now be determined independently and there is no presumption that it coincides with that of the husband upon marriage.57 Unfortunately, the anachronistic common law presumptions survive for those few cases where a pre-Domicile Act (ie, pre-1982) domicile must be determined for purposes other than the Family Law Act 1975 (Cth) or the Marriage Act 1961 (Cth). [page 321]

Domicile of Choice Acquisition of a domicile of choice 13.19 At common law, a person acquires a domicile of choice in a country by being lawfully present there with the intention of remaining in that country indefinitely.58 In LK v Director-General, Department of Community Services,59 the High Court stressed that questions of intention have ‘decisive importance’ in determining whether a new domicile of choice has been acquired, and went on to observe that this is a reason why the concept of habitual residence is increasingly preferred to that of domicile in legislation and international conventions. The two elements of physical presence60 and intention must occur at the same time for a domicile of choice to be acquired. Thus, a migrant does not acquire a domicile of choice in Victoria merely by intending to settle in that state before actually arriving there. Nor would residence in Victoria, however long, by itself be sufficient if it were not accompanied by the necessary intention. However, the moment the migrant sets foot in Victoria with the intention of settling there, a domicile of choice in that state accrues. Provided the intention can be proved to exist the length of presence in the jurisdiction is immaterial. For example, in Blackett v Darcy,61 the testator had lived for almost all of his long life in New South Wales but moved to Queensland with the intention to live there indefinitely. Unfortunately, he died only two weeks after moving to Queensland.

Nevertheless, the Supreme Court of New South Wales held that he was domiciled in Queensland at the time of his death. The presence, however, must be lawful. As Griffith CJ said in Ah Yin v Christie:62 ‘ The acquisition of a domicile of choice by a person coming from abroad to any country depends … upon the permission given by that country to enter it and make it his home’. Hence a person who enters a country unlawfully,63 or obtains permission to enter by fraud,64 cannot acquire a domicile of choice there. But if the presence is lawful at the time the intention to remain indefinitely in a particular country is formed, a domicile of choice may be acquired even though permission to stay was granted for a limited period only.65 That domicile once acquired is not lost when upon expiry of the temporary permit, the person concerned becomes an ‘unlawful non-citizen’ [page 322] under s 15(1) of the Migration Act 1958 (Cth),66 even though that person is subject to an as yet unexecuted order for deportation.67 Conversely, lawful recognition of a person’s residence may be taken into account in determining whether a domicile of choice has been acquired. In Kaur & Narula,68 the Federal Magistrates’ Court took into account the fact that a woman had been granted permanent resident status in Australia when concluding that she had abandoned her Indian domicile of origin and had acquired an Australian domicile of choice. Lucev FM said that ‘[t]he issues of residence and intention to remain indefinitely have effectively coalesced in the Applicant’s permanent resident status’.69 At common law the mental element required to obtain a domicile of choice was described as ‘an intention to reside permanently or indefinitely in a country’.70 The use of the word ‘permanent’ led at times to the imposition of a very stringent test that made it virtually impossible to acquire a domicile of choice unless the person concerned had completely abandoned any intention of eventually returning to his or her homeland.71 However, in Hyland v Hyland,72 Asprey JA on behalf of a majority of the New South Wales Court of Appeal defined the common law test in more flexible terms:73 In the context of the principles applicable to a domicile of choice I am of the opinion that the use of

the word ‘permanent’ means nothing more than Lord Westbury’s phrase ‘general and indefinite’ which, as I understand it, produces the result that the person’s intention is one which, when formed, is to remain a resident of the country for a period then regarded by him as unlimited in time and without having addressed himself to the question of giving up such residence and leaving the country of his choice upon the happening of some particular and definite event in the foreseeable future notwithstanding that he may entertain in the phraseology which appears to have been coined by Story (Conflict of Laws, 8th ed, p 50) a floating intention to return at some future period of time to his native country …

The distinction therefore lies between a definite intent to return or move on and a ‘floating intention’. That question must be considered objectively. As Scarman J pointed out in The Estate of Fuld (dec’d) (No 3)74 it was not so much the hopes and expectations of the person concerned that were at issue but ‘the probability, in his assessment, of the contingencies he has in contemplation being transformed into actualities’. It follows that Mr Hyland, an Australian who set up business in Thailand, was not debarred from acquiring a domicile in that country merely because his intention to remain there indefinitely was tempered by a willingness to move to another South [page 323] East Asian country should better business opportunities present themselves, or to return to Australia should some indefinite and uncertain contingency occur.75 In contrast, the Canadian-born Mr Bullock in IRC v Bullock,76 who throughout his long residence in England had at all times a definite intention to return to Nova Scotia if only he could persuade his English wife to come or she predeceased him, was held to have retained his Canadian domicile even though at the time of the hearing, he had been unsuccessful in persuading his wife to move to Nova Scotia. Similarly, in Jamieson v Commr for Internal Revenue,77 the Australianborn Mr Jamieson, who lived and worked in the United States as a permanent resident with a ‘green card’ for six years before his death, was held not to have acquired a domicile of choice in the United States because he had given several definite indications of an intention to return to Australia, including applying for a job in Australia and retaining property and bank accounts in Australia.78 13.20 The Domicile Act 1982 (Cth) s 1079 now provides that the necessary intention is ‘the intention to make his or her home indefinitely in that country’. Does this change the common law position as defined by Asprey JA and Scarman J? In In the Marriage of Henry,80 a man born in Australia moved to

Monaco to minimise the incidence of income tax, while retaining an intention to return to Australia at some time in the future. He later returned to Australia, where he instituted divorce proceedings against his wife relying, as to jurisdiction, only on the fact that he was domiciled in Australia. A judicial registrar of the Family Court held that he had abandoned his Australian domicile of origin and had acquired a domicile of choice in Monaco, notwithstanding his intention to return to Australia. The registrar also held that he had acquired an Australian domicile of choice on his return to Australia, because he then had the intention of staying indefinitely in Australia, thus satisfying the test in s 10. On appeal to a single judge of the Family Court and later to the Full Court of the Family Court, attention was focused on whether the husband had acquired an Australian domicile of choice. That inquiry implicitly accepted that he had previously acquired a Monégasque domicile, despite the fact that while living in Monaco he intended to return to Australia. That assumption seems consistent with the Asprey/Hyland test.81 If this is the correct interpretation of s 10 it only clarifies but does not change the common law.

Loss of domicile of choice 13.21 At common law a domicile of choice was abandoned when a person left the territory of the existing domicile with the intention of never returning, or, having left [page 324] that territory at first for a limited duration, subsequently formed the intention not to return. As soon as the two elements of absence from the territory and intention not to return coincided, the domicile of choice was lost. If no new domicile of choice was acquired, the domicile of origin would revive until a new domicile of choice was acquired. Thus, if a person born in England with an English domicile of origin had first emigrated to New Zealand, acquiring a domicile of choice there, but subsequently decided to move to New South Wales indefinitely but perished in a plane crash over the Tasman Sea en route from Auckland to Sydney, the domicile as at the date of death would be English. The New Zealand domicile of choice would have been abandoned on departure from that country. The New

South Wales domicile could not be acquired until arrival. That remains the law when a domicile has to be determined at a date prior to 1 July 1982. In cases governed by the Domicile Acts, the rule of law whereby a domicile of origin revives upon the abandonment of the domicile of choice is abolished and the domicile a person has at any time continues until he or she acquires a different domicile.82 This introduces a rule that has been accepted in the United States for a considerable time.83 Its application to the example given earlier would mean that the deceased’s domicile continued to be in New Zealand until actual arrival in New South Wales. Even if the deceased had decided to return to England, an English domicile could not be re-acquired and the New Zealand domicile abandoned, until arrival in that country.84 In order to abandon an existing domicile, it is not necessary to sever all links with the country of the former domicile. A party will acquire a new domicile when he or she establishes his or her principal residence in another country even though he or she retains a residence in the country of former domicile for business, study or other purposes.85

Persons of unsound mind 13.22 Because acquisition of a domicile of choice depends in part upon intention, special difficulties arise in relation to persons of unsound mind. The Domicile Acts specifically state that they do not alter the common law in relation to such people.86 If a person by reason of mental illness is incapable of the required intention to settle in a country indefinitely, his or her domicile remains unchanged as long as [page 325] the incapacity persists.87 It would seem that the domicile of the mentally-ill person cannot be changed by the guardian.88 If, however, the incapacity exists during infancy, the dependence on the paternal, and in appropriate cases, the maternal, domicile continues even after the age of majority has been reached.89

Evidence of change of domicile

13.23 At common law it could be difficult to prove that a person had the requisite intention to acquire a domicile of choice. There was a presumption that a person exchanged a domicile of origin for a domicile of choice with the greatest of reluctance. The onus of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice lay upon the party asserting the change. Despite some earlier dicta to the contrary,90 it was accepted even before the making of the Domicile Acts that the standard of proof was that of the balance of probabilities and not the criminal standard of beyond a reasonable doubt. Nevertheless the civil standard applicable to the displacement of the domicile of origin was a difficult one to discharge. As Asprey JA put it in Hyland v Hyland:91 … in deciding whether or not to draw the inference, the court will pay regard to the more enduring character of a domicile of origin and so require on a balance of probabilities, an actual persuasion of the mind as to the change of domicile.

This extra burden has now been removed by the Domicile Acts. The onus of proof is no heavier than it would be to establish the change from one domicile of choice to another.92 There is still a presumption that a domicile that has been shown to exist at some time in the past has continued until the relevant time. The onus rests upon the party alleging that a domicile has been changed to establish this.93 13.24 At common law there was also a strong presumption that persons who came to a country under compulsion, such as servicemen,94 public servants,95 persons under a contractual obligation to go where directed,96 and political refugees,97 did not intend to settle permanently in the country to which they were sent or to which they fled. This presumption could, however, be rebutted if the evidence showed that the person concerned intended to stay in that country after discharge from military or other service or to return there if moved elsewhere in the meantime.98 [page 326] 13.25 The present requirement under the Domicile Acts is that the person concerned intends to make his or her home indefinitely within the jurisdiction.99 This clearly still excludes a person who came to a country regardless of volition, such as a prisoner.100 It would also exclude a diplomat or businessperson who is liable to be moved to another location at any time. But it is now likely that other

categories of persons who previously were regarded as involuntary settlers, such as political refugees with no immediate hope of returning to their homeland101 or persons who came for health reasons,102 will be held to have acquired a domicile of choice in the country where they made their home for an indefinite period. 13.26 It was said by Sugerman J in Re McKenzie103 that a person’s presence in a particular place raises a presumption of domicile there. This presumption, if it can be called such, is relatively easy to rebut. It amounts to no more than that in the absence of any other evidence such a presence constitutes sufficient evidence from which the existence of a domicile in that place can be inferred. If other evidence is available, the fact of presence is merely one of many factors to be considered. Beyond this it is hard to predict in advance what facts the courts will consider relevant. As Ligertwood J said in Re Cartier:104 ‘ The importance of any one fact is relative. The real question is, what is the proper conclusion to be drawn from all the circumstances’. A person’s intention must in the main be deduced from his or her behaviour. In the words of Isaacs J in Fremlin v Fremlin:105 The intention is to be judged of upon [sic] all available testimony. Of this conduct is the most important, because the most reliable. A man’s own declarations are, of course, admissible in evidence, but as laid down by the Privy Council in McMullen v Wadsworth (1889) 14 App Cas 631 at 636, the doctrine of the Roman law still holds good that ‘it is not by naked assertion, but by deeds and acts, that a domicile is established’. Naked assertion without deeds and acts would be useless, and assertion inconsistent with deeds and acts is equally useless to control them.

Though the courts will usually place more reliance on conduct than on declarations of intention whether made before or after the issue of domicile was raised, declarations of intention can be most relevant as Isaacs J continued: But, where the quality of the conduct is not per se unequivocal, where it is reasonably capable of either construction … then honest evidence of actual intention cannot be cast aside and treated as non-existent, and some sound reason must be found for disbelieving it.106

[page 327] It must be said, however, that the reduction of the standard of intention from an intention to make one’s home permanently in a country to an intention to reside there indefinitely also means that the enquiry need not be as extensive as it used to be under the previous law.

Conflict of laws as to the acquisition of domicile 13.27 It is well established that Australian courts must in all cases apply the concept of domicile according to the law of the forum.107 Hence an Australian court is not concerned with the fact that under the law of the United States or France ‘domicile’ bears a different legal meaning. However, Professor Graveson has argued that the question of capacity to acquire a domicile can be separated from the notion of domicile itself.108 This view has the support of an obiter remark made by the High Court of Australia when it said, in Haque v Haque (No 1):109 [T]here is no authority for the view that capacity to acquire a domicile of choice is governed by any law but that of the domicile the acquisition of which is sought.

This view is contrary to the actual practice of the courts, which is to apply the lex fori. There have been several cases in which there was actually a conflict of laws concerning capacity to acquire a domicile. In each of these cases the courts have applied the law of the forum without discussion of the problem.110 It must be noted that even in Haque v Haque (No 1) the forum and the new domicile coincided. It is submitted that the application of the law of the forum is least likely to cause confusion. The Domicile Acts now make provision in respect of the capacity of minors111 and married women.112 Those provisions apply to the exclusion of any foreign law.113

Nationality 13.28 Nationality is relevant in the Australian conflict of laws in three areas: the formal validity of a will,114 jurisdiction and recognition in matrimonial causes,115 and in recognition and enforcement of foreign judgments at common law, where jurisdiction of the foreign court based on the nationality of the defendant is one of the grounds for recognition and enforcement.116 [page 328] 13.29 Australian citizenship is regulated by the Australian Citizenship Act 2007 (Cth). It may be acquired by birth in Australia, by adoption, by descent from an Australian parent or by grant of Australian citizenship.

All children born in Australia on or after 26 January 1949 and before 20 August 1986, other than the children of foreign diplomats temporarily stationed in Australia or of enemy aliens in belligerent occupation of Australian soil, had Australian nationality by birth.117 Children born on or after 20 August 1986, have Australian nationality by birth only if at least one parent was at the time of birth an Australian citizen or permanent resident or if the child has throughout the period of ten years from the date of birth been ordinarily resident in Australia.118 A child found abandoned in Australia is an Australian citizen, unless and until the contrary is proved.119 ‘Australia’ for these purposes includes the external territories of Australia.120 A person acquires Australian citizenship by adoption, if adopted under a law in force in an Australian jurisdiction, by a person who is an Australian citizen at the time of adoption or jointly by two persons, at least one of whom is an Australian citizen, and the adopted person was at the date of adoption present in Australia as a permanent resident.121 A person adopted outside Australia is eligible for Australian citizenship if he or she is adopted by at least one Australian citizen and if the adoption is in accordance with the Hague Convention on Intercountry Adoption.122 Such a person must apply for citizenship and may be refused if the minister is not satisfied of the person’s identity, or for national security reasons, or on grounds of cessation of citizenship.123 A person born outside Australia on or after 26 January 1949, is eligible for Australian citizenship by descent, if either parent was at the time of birth an Australian citizen.124 If such a person is aged 18 years or over, he or she is only eligible if the minister is satisfied that he or she is of good character.125 A person born outside Australia or New Guinea before 26 January 1949 is eligible to become an Australian citizen if either parent was an Australian citizen on 26 January 1949.126 To be eligible, such a person must be of good character.127 To acquire Australian citizenship, an eligible person must apply to the minister.128 The minister must [page 329] approve applications from eligible persons129 unless he or she is not satisfied of their identity, or for national security reasons, or on grounds of cessation of citizenship.130

Persons born abroad who had the status of British subject immediately prior to 26 January 1948 and who had been resident in Australia for five years prior to that date acquired Australian citizenship by virtue of the Australian Citizenship Act 1948 (Cth) (now repealed) and continue to have citizenship if they were still Australian citizens on 1 July 2007.131 A person who does not already hold Australian citizenship may be granted Australian citizenship if the eligibility criteria set out in the Australian Citizenship Act 2007 (Cth) s 21 are fulfilled. A person acquires Australian citizenship on the date that he or she makes a pledge of commitment to become an Australian citizen,132 unless he or she is under 16 years of age at the time of the application to become an Australian citizen or has a permanent physical or mental incapacity that means that he or she is incapable of understanding the nature of the application for citizenship, in which case he or she becomes an Australian citizen when the application is approved.133 13.30 It is no longer possible, as it was before 1 July 2007, for an Australian citizen to lose citizenship automatically, except in the very unusual case of a person becoming a national or a citizen of a foreign country and serving in the armed forces of that country at war with Australia.134 Under the old Act, citizenship could also be lost automatically merely by deliberate acquisition of citizenship of another country.135 Under the 2007 Act, Australian citizenship must be renounced formally and the renunciation must be accepted by the minister before citizenship can be lost.136 The minister may only approve an application for renunciation on the ground that the applicant has acquired citizenship of another country if that other country would not recognise dual citizenship.137 Children of responsible parents lose their Australian citizenship if their parents renounce their citizenship but not if one responsible parent remains an Australian citizen, nor if the result of revoking the child’s citizenship would be that he or she would become stateless.138 In very limited circumstances, the minister may also revoke a person’s Australian citizenship but only if that citizenship was acquired by descent or conferral, not by birth or adoption within Australia.139 [page 330]

Foreign nationality

13.31 The question whether a particular person possesses a certain foreign nationality is determined in the first place according to the municipal law of the state of the nationality concerned. Thus, if a person claims to be a citizen of the Federal Republic of Germany, it is to the German law of citizenship that the court must look.140 13.32 To this principle there are a number of exceptions during wartime, which allow our courts to treat persons as enemy aliens even though they have, according to the law of the enemy state, lost the nationality of that country. This applies whenever a person is alleged to have lost enemy nationality during wartime, not only by reason of a law enacted during wartime, such as the infamous 1941 Nazi decree depriving Jews resident abroad of German citizenship, but also by reason of a law enacted for general purposes in peacetime, such as a law that provides that a woman loses her original nationality upon marrying an alien and acquiring his nationality.141 A person who lost his or her nationality before the outbreak of war may still be treated as an enemy alien if, despite the loss of that nationality, that person remains liable to some residual duties of citizenship, such as liability to military service.142 But these rules are rules of public policy concerned with the security of the realm during wartime. With the end of actual hostilities, the reason for denying recognition to the changes of nationality disappears and a wartime change of nationality will be recognised with retrospective effect to the original date of change.143 In Oppenheimer v Cattermole,144 Lord Cross suggested that a change of nationality effected in breach of a rule of public international law should not be recognised whether it took place in peace or in war. He gave as examples of such breaches the conferral of German nationality by the Nazi Government in 1938 upon all Austrian citizens including those who had left Austria long before its annexation by Germany,145 and the discriminatory 1941 Nazi decree singling out Jewish citizens for deprivation of nationality. This view was shared by Lords Hodson and Salmon.146 On the other hand, Lord Pearson,147 with whom Lord Hailsham appeared to agree,148 took the view that a deprivation of nationality, however unjust, should be given effect. With respect, it is submitted that the latter view is more realistic, for nothing is to be gained by giving a person the fictional nationality of a state that no longer wants that person as a citizen. [page 331]

13.33 Another problem that is likely to arise is that of dual nationality. Can an Australian citizen rely for the recognition of a foreign divorce upon the possession of a dual nationality elsewhere? In Sykes v Cleary149 the High Court accepted the proposition put forward by the House of Lords in Oppenheimer v Cattermole that the common law recognises dual nationality, which can co-exist with Australian nationality. Thus, an Australian citizen who is also a foreign national may rely upon that nationality for the purposes of recognition of a foreign divorce under s 104(3)(d) or (e) of the Family Law Act 1975 (Cth)150 unless that nationality falls within one of the exceptions described by Lord Cross.

Residence, Ordinary Residence and Habitual Residence 13.34 Residence has long been known as a jurisdictional factor. Thus, a court can exercise jurisdiction in personam over a person who is resident in the jurisdiction.151 Residence of the applicant or the respondent has also been used as a basis for jurisdiction in matrimonial causes152 and in adoptions.153 In recent years residence and habitual residence have come to be accepted as an alternative to domicile as a connecting factor in the recognition of foreign dissolutions and annulments,154 and as regards the formal validity of a will.155 Unlike domicile, however, there is no single concept of residence: some statutes have used residence simpliciter or coupled with a time qualification, other statutes use the term ‘habitual residence’, which is often found in international conventions, and yet others use the words ‘ordinarily resident’. The meaning of these terms and the differences, if any, between them is not altogether clear. 13.35 Another difficulty — or, perhaps, an advantage156 — is that residence is not a term of art like domicile. It is usually a question of fact, the determination of which is coloured by the purposes for which it is relevant. Thus, residence may mean one thing for the purposes of founding jurisdiction in personam over a defendant, another thing in taxation matters, and yet another thing in matrimonial causes. In essence the court must, when it has to consider whether a person is resident in a certain country for the purposes of a particular rule, for example, the recognition of a foreign adoption, enquire what degree of connection was envisaged by the legislature when enacting that rule.157

[page 332] The phrase ‘ordinarily resident’ was defined as follows by Lockhart J in Re Taylor; Ex parte Natwest Australia Bank Ltd:158 To say that a person is ordinarily resident in Australia must mean something more than that he is resident in Australia. The word ‘ordinarily’ connotes a comparison, a measure of degree. A person may have more than one residence, but he is not necessarily ordinarily resident in each of them. The question must be determined … at a particular time. One must ask the question whether at that time the person was ordinarily resident in Australia. The concept of ‘ordinary residence’ for the purposes of the Act, in my opinion, connotes a place where in the ordinary course of a person’s life he regularly or customarily lives. There must be some element of permanence, to be contrasted with a place where he stays only casually or intermittently. The expression ‘ordinarily resident in’ connotes some habit of life, and is to be contrasted with temporary or occasional residence.

According to Lord Scarman in Akbarali v Brent London Borough Council,159 such residence has to be lawful and not in breach of immigration laws, and voluntary in the sense that it was not brought about by imprisonment or kidnapping. According to that view, ‘ordinary residence’ shares some similarities with domicile: there must be a lawful presence with an intention to remain there for a settled purpose. But such an approach runs the risk of distorting reality. In the New Zealand case of H v H160 it was held that a child who had resided with its parents for 26 months in the United States had acquired a habitual residence there even though its parents had no legal status to work or to remain there. Nor is it quite certain to what extent the intention must be freely formed. It has been held in Australia that a prisoner of war can be resident in his or her place of internment.161 The better view is that a long-term involuntary residence in a particular country can lead to the acquisition of an ordinary or habitual residence in that place.162 An ordinary or habitual residence is not lost through temporary absence,163 but is lost immediately when a person leaves a country with a settled intention not to return, or more gradually when a person remains away for a substantial period.164 However, the former residence is not abandoned until the border is crossed.165 13.36 Can a person have more than one ordinary or habitual residence at the same time or none at all? In Re Taylor; Ex parte Natwest Australia Bank Ltd,166 Lockhart J said that ‘ordinary residence’ is unlike domicile in that a person can be without an ordinary residence or have more than one at a time. The proposition that a person may have more than one ordinary residence was adopted for the purposes of the

[page 333] Bankruptcy Act 1966 (Cth) by Graham J of the Federal Court of Australia in Mathai v Kwee167 and by a Full Court of the Federal Court of Australia in Battenberg v Restom.168 In contrast, in Cooper v Casey,169 Nicholson CJ of the Family Court (with whom Kay and Graham JJ agreed) said that at least for the purposes of the Hague Convention on the Civil Aspects of International Child Abduction, a child must be regarded as having a ‘habitual residence’ at all times, and can have only one ‘habitual residence’. However, it is not clear why it matters that a child could have more than one habitual residence. If one of those places is the country to which the child was taken, it need not be returned to the other place. If both places are abroad, the person or body seeking return will determine to which country the child should be returned. The convention is not helped by a return to the artificial concepts of domicile.170 As regards the absence of any habitual residence at all, it is argued by Beaumont and McEleavy that this should not be regarded as an ‘undesirable lacuna’ because there is no sense in returning a child to a country with which it has no real connection.171 13.37 Unlike domicile, for purposes of ‘habitual residence’ the intention need only be to stay for a settled purpose even though limited in time. Examples are businesspeople or servicepeople on a tour of duty for a specified period, students studying at a foreign university,172 or a husband going to a country where his wife is resident to seek a reconciliation.173 But a person who is in a country as a casual visitor or traveller is not resident there.174 In Director-General, Dept of Communities (Child Safety Services) v Hardwick175 Forrest J of the Family Court of Australia noted the distinction between ‘habitual residence’ and domicile, quoting the High Court’s observations in LK to the effect that the concept of ‘habitual residence’ entails discarding the decisive importance given to questions of intention in relation to domicile,176 but went on to observe that examination of a person’s intentions will usually remain relevant in determining where that person habitually resides. Forrest J said: Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.

[page 334] Similarly, in Secretary, Attorney-General’s Department (Cth) v Donald,177 Ryan J of the Family Court of Australia said that ‘Although it is accepted that settled intention or purpose does not import the approach to intention used in the application of law of domicile, the manner in which intention is applied in the establishment of a domicile of choice is illustrative’. Nevertheless, the High Court observed in LK v Director-General, Department of Community Services: ‘[I]t would be wrong to treat the references to settled purposes (or settled purpose or intention) as importing the old law of domicile…’178 and also: ‘[I]f references to settled intention were to be understood as requiring inquiries about intention like those that are necessary to the application of the law of domicile, such an understanding would be sharply at odds with the use of the expression “habitually resident”’.179 In Kilah v Director-General, Department of Community Services,180 a Full Court of the Family Court of Australia held that ‘settled purpose’ is not merely one factor to be considered when determining ‘habitual residence’ for the purposes of the Hague Convention on the Civil Aspects of International Child Abduction. It is an integral part of a finding of habitual residence, so much so that it is inappropriate for a court to conduct a broad factual inquiry to consider the objective connection the children have with different states.181 In the case of young children, the habitual residence of the child will be determined by the person or persons who have parental responsibility for the child,182 which directs attention to the intentions of the parents and a degree of settled purpose from the child’s perspective.183 The child may obtain a residence in a country other than the residence of the persons having parental responsibility if, with their consent, the child is sent to live there.184 But this does not apply if the child is sent overseas for a temporary purpose, such as a visit to relatives abroad.185 A parent who has sole parental responsibility can change the residence of the child without the consent of the other parent,186 but in the case of joint parental responsibility, the residence of the child cannot be changed, at least in the short term, by unilateral action.187 If the child is made a ward of court, the custodial rights of the child are vested in the court and neither parent can change the child’s residence without the consent [page 335]

of the court.188 Unlike domicile, there is no formal age of emancipation. This, on the principles laid down by the House of Lords in Gillick v West Norfolk and Wisbech Health Authority,189 will depend on the age and maturity of the child, a proposition accepted by Gleeson CJ in Re Woolley; Ex parte Applicants M276/2003.190 13.38 Originally, it was generally assumed in Australia that the word ‘residence’ when used in a statute indicates the degree of relative permanence associated with ‘ordinary residence’ as defined above.191 A different view was taken by Smith J in Clarke v Clarke192 who drew a distinction between ‘residing’ for a special purpose, such as study, and ‘ordinarily residing’ which was for general purposes of living with its accessories in social relations, interests and conveniences. Thus, a girl who attended boarding school was held by him to be ‘ordinarily resident’ at her parents’ home even though for most of the year she might be ‘resident’ at school. This distinction may not be as relevant for tertiary students, though. The House of Lords in Akbarali v Brent LBC193 held that overseas students were ‘ordinarily resident’ in the United Kingdom during their period of study there even though their ‘homes’ remained abroad. This issue was considered by Lockhart J in Re Taylor; Ex parte Natwest Australia Bank Ltd,194 who rightly remarked that ‘ordinary residence’ must mean something more than ‘residence’. He contrasted ‘ordinary residence’ with temporary or occasional residence. A person therefore can be ‘resident’ in a place for holiday or business purposes without abandoning his or her ‘ordinary residence’ in the place where that person regularly or customarily lives. Ultimately, the interpretation of the word ‘resident’ in a statute will depend on its context and purpose and, as Kneipp J said in Re an Infant:195 ‘[A]lmost invariably they have been construed by reference to the view that the primary meaning of “residence” is a permanent place of abode’. 13.39 There is also authority for the proposition that ‘habitual residence’ has a different meaning from ‘ordinary residence’. In Cruse v Chittum196 Lane J accepted the proposition: … that ‘habitual must indicate a quality of residence, rather than a period of residence’. By this is meant that it must not be of a temporary or secondary nature, but that it requires a regular physical presence which must endure for some time. It follows from this that ‘ordinary residence’ is different from habitual residence in ‘that the latter is surely more than the former and is similar to the residence normally required as part

[page 336]

of domicile, although in habitual residence there is no need for the element of animus which is necessary in domicile’.

This proposition is not easy to understand. The residence requirement in domicile can be very short indeed if backed up by the animus to remain in the country of presence permanently. Thus, the statement appears to be selfcontradictory. What is meant, presumably, is that the country of residence must be one’s home for a period of time before it can be described as ‘habitual’. In contrast, in Kilah v Director-General, Department of Community Services,197 a Full Court of the Family Court of Australia held that because ‘settled purpose’ is centrally important to determining ‘habitual residence’, residence for even a short period of time may be sufficient if coupled with the requisite ‘settled purpose’.198 The proposition that ‘habitual residence’ is different from ‘ordinary residence’ received the support of the House of Lords in Re J (A Minor) (Abduction)199 where the custodian mother removed the child from Western Australia with the intention of returning to live with her parents in England. Following the removal the father obtained an order for custody of the child from the Family Court of Western Australia. The issue before the House of Lords was whether the child was at that time still ‘habitually resident’ in Western Australia within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction. The House of Lords concluded that the child was not ‘habitually resident’ in Western Australia, since the mother had left Western Australia with the settled intention not to return but to take up long-term residence in England. The loss of the Western Australian habitual residence occurred when, with that intention, she crossed the border. But, Lord Brandon said, she could not acquire a habitual residence in England in such a short span of time: ‘An appreciable period of time and a settled intention will be necessary to enable him or her to become so’.200 Hence the mother might be domiciled and even ‘ordinarily resident’ in England immediately upon her return, but would have to wait some unspecified period of time before becoming ‘habitually resident’ there.201 The onus of proving a change of habitual residence lies upon the person alleging the same.202 This, with great respect, is a somewhat absurd distinction that could create embarrassing gaps in the application of the Hague Conventions, where that term is regularly used.203 In many respects the concepts have been given similar meanings.

[page 337] They each indicate a long-term residence that need not be permanent,204 and is not affected by short-term absences.205 The rules relating to young children are the same.206 There is no reason why the terms ‘habitual residence’ and ‘ordinary residence’ should have different meanings. It should be noted that under s 4(1) of the Family Law Act 1975 (Cth) ‘ordinarily resident’ is defined as including ‘habitually resident’. ____________________ 1.

LK v Director-General, Department of Community Services (2009) 237 CLR 582 at 599; 253 ALR 202 at 210, at [24] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ, quoting Bell v Kennedy (1868) LR 1 Sc & Div 307 at 320 (‘idea of law’) and Scoles, Hay, Borchers & Symeonides, Conflict of Laws, 4th ed, Thomson West, St Paul MN, 2004, p 247 ¶4.14 (‘distasteful problems’).

2.

See Ferrier-Watson v McElrath (2000) 26 Fam LR 169 at 187 per Holden and Jerrard JJ.

3.

Domicile Act 1982 (Cth); Domicile Act 1979 (NT); Domicile Act 1979 (NSW); Domicile Act 1981 (Qld); Domicile Act 1980 (SA); Domicile Act 1980 (Tas); Domicile Act 1978 (Vic); Domicile Act 1981 (WA). The federal Domicile Act 1982 (Cth) applies to the Australian Capital Territory and has been extended by regulation to the external territories of Christmas Island, Cocos (Keeling) Islands and Norfolk Island: Domicile Regulations 1982 (Cth) reg 3. Since the Acts are substantially similar reference will be made only to the federal Act.

4.

Domicile Act 1982 (Cth) s 5(2).

5.

See note 4 above, s 5(1).

6.

(2003) 74 ALD 37; [2003] FCA 153.

7.

232 US 619 at 625 (1914).

8.

Radich v Bank of New Zealand (1993) 45 FCR 101 at 108 per Einfeld J.

9.

See Pedersen v Young (1964) 110 CLR 162 at 170 per Windeyer J; McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 36 per Brennan, Dawson, Toohey and McHugh JJ.

10. Casdagli v Casdagli [1919] AC 145. 11. Brabender v Brabender [1949] VLR 69; Re Cartier [1952] SASR 280. 12. Bradford v Bradford [1943] SASR 123 at 126. 13. (1876) 14 SCR (NSW) 72. 14. See note 13 above, at 86. 15. See note 13 above, at 99, 100. 16. Cf Egan v Egan [1928] NI 159, for a similarly mistaken approach. 17. Attorney-General (Alberta) v Cook [1926] AC 444 at 450. 18. Family Law Act 1975 (Cth) s 39(3)(b); Marriage Act 1961 (Cth) ss 10(2)(b), 89(3)(a) and 91(2). 19. Lloyd v Lloyd [1962] VR 70 at 71. See, for example, Henry v Henry (1996) 185 CLR 571; 135 ALR 564 (application for dissolution of marriage based on domicile in Australia). 20. Section 10 of the state Domicile Acts.

21. [1968] SASR 243. 22. See Mericka v Mericka [1954] SASR 74 at 82, 83; Armstead v Armstead [1954] VLR 733 at 736. 23. See Ferrier-Watson v McElrath (2000) 26 Fam LR 169 at 188 per Holden and Jerrard JJ. 24. (1869) LR 1 Sc & Div 441 at 454–5. 25. Domicile Act 1982 (Cth) s 7; s 6 of the state Domicile Acts. 26. See, for example, Radich v Bank of New Zealand (1993) 45 FCR 101 at 108 per Einfeld J, comparing the pre- and post-1982 domicile of a person, illustrating the use of the rule of revival before but not after 1 July 1982. 27. Re McKenzie (1951) 51 SR (NSW) 293. 28. Parentage Act 2004 (ACT) s 38; Status of Children Act 1996 (NSW) s 5; Status of Children Act 1978 (NT) s 4(1); Status of Children Act 1978 (Qld) s 6(1); Family Relationships Act 1975 (SA) s 6(1); Status of Children Act 1974 (Tas) s 3(1); Status of Children Act 1974 (Vic) s 3(1). 29. G v P [1977] VR 44 at 46 per Kaye J, approved by the High Court in Douglas v Longano (1981) 147 CLR 212 at 216 per Gibbs CJ, Mason and Murphy JJ; B v B (1981) 7 Fam LR 1011. See also Youngman v Lawson [1981] 1 NSWLR 439 at 443–4 per Street CJ. A more cautious view was taken by Cosgrove J in Re Glynn; Glynn v Harries [1980] Tas R 248 at 251–2. 30. Parentage Act 2004 (ACT) s 11(2); Status of Children Act 1996 (NSW) s 14(1)(b); Status of Children Act 1978 (NT) s 5C; Status of Children Act 1978 (Qld) ss 19(2)(a), 19E(2)(a)(donor ovum only); Family Relationships Act 1975 (SA) s 10C(1); Status of Children Act 1974 (Tas) s 10C(3) (donor ovum only); Status of Children Act 1974 (Vic) ss 10E(2)(a), 13(1)(a), 14(1)(a); Artificial Conception Act 1985 (WA) s 5 (donor ovum only). The provisions in Queensland, Tasmania and Western Australia apply only in the situation where there is a donor ovum, presumably because if a woman conceives with her own ovum from implantation of donor sperm, she is regarded as being the mother of the child subsequently born. 31. ACT: s 11(3)(ovum donor), s 11(5)(sperm donor); NSW: s 14(2)(sperm donor), s 14(3)(ovum donor); NT: ss 5D(1)(b), 5F(sperm donor), s 5E(ovum donor); Qld: ss 18(2)(b), 19(2)(b), 19D(2), 19E(4) (sperm donor), ss 19D(2)(b), 19E(2)(b)(ovum donor); SA: s 10C(2)(ovum donor), s 10C(4) (sperm donor); Tas: s 10C(2)(sperm donor), s 10C(4)(ovum donor); Vic: ss 10C(2)(b), 10D(2)(b), 10E(2)(d) (ii), 13(1)(c), 14(1)(c), 15(1)(b), 16(1)(b)(sperm donor), ss 10E(2)(b), 14(1)(d), 16(1)(c) (ovum donor); WA: s 7(1)(ovum donor), s 7(2)(sperm donor). 32. ACT: s 11(4)(any domestic partner); NSW: s 14(1)(a)(male partner), s14(1A)(female partner); NT: s 5D(1)(male partner), s 5DA(1)(female partner); Qld: ss 17(2)(a), 18(2)(a), 19C(3)(male partner), ss 19C(3), 19D(3)(female partner); SA: s 10C(3)(any domestic partner); Tas: s 10C(1) (male partner), s 10C(1A)(female partner); Vic: ss 10C(2)(a), 10D(2)(a), 10E(2)(c),(d)(i)(male partner), s 13(1)(b) (female partner); WA: s 6(1)(b)(male partner); 6A(female partner). 33. Section 8(1) of the state Acts. 34. Domicile Act 1982 (Cth) s 9(1). 35. Section 8(2) of the state Acts. 36. Re McKenzie (1951) 51 SR (NSW) 293. 37. Re Stott and Repatriation Commission (1995) 36 ALD 477 at 479; Parnell-Schoneveld v Repatriation Commission (2003) 74 ALD 37; [2003] FCA 153. 38. [1893] 3 Ch 490 at 497. 39. Re Beaumont [1893] 3 Ch 490; Re G [1966] NZLR 1028. 40. (2003) 74 ALD 37; [2003] FCA 153.

41. Domicile Act 1982 (Cth) s 9(1); s 8(1) of the state Domicile Acts. 42. Domicile Act 1982 (Cth) s 9(3). 43. See Re G [1966] NZLR 1028 at 1031 per Wilson J. 44. Domicile Act 1982 (Cth) s 9(2)(a). 45. Domicile Act 1982 (Cth) s 9(2)(b). 46. See note 45 above, s 9(5). 47. See note 45 above, s 9(1), (3), (4). 48. Douglas v Douglas (1871) LR 12 Eq 617 at 625 per Wickens VC; Potter v Minahan (1908) 7 CLR 277 at 288 per Griffith CJ; Zwillinger v Schulof [1963] VR 407 at 412 per Gowans J. 49. [1948] NZLR 846. 50. Domicile Act 1982 (Cth) s 8(1). For an example of a minor being held to be unable to acquire a domicile of choice, see Re Stott and Repatriation Commission (1995) 36 ALD 477. 51. Age of Majority Act 1974 (ACT); Minors (Property and Contracts) Act 1970 (NSW) s 15; Age of Majority Act 1981 (NT); Age of Majority Act 1974 (Qld); Age of Majority (Reduction) Act 1970 (SA); Age of Majority Act 1973 (Tas); Age of Majority Act 1977 (Vic); Age of Majority Act 1972 (WA). 52. Robertson v Robertson [1905] VLR 546. 53. Shekleton v Shekleton [1972] 2 NSWLR 675. 54. Domicile Act 1982 (Cth) s 9(4). 55. Re Wallach [1950] 1 All ER 199. 56. Domicile Act 1982 (Cth) s 6; s 5 of the state Domicile Acts. 57. Puttick v Attorney-General [1980] Fam 1. 58. Domicile Act 1982 (Cth) s 10. 59. LK v Director-General, Department of Community Services (2009) 237 CLR 582 at 599; 253 ALR 202 at 210, at [24] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ. 60. The requirement is one of presence, not residence: Ferrier-Watson v McElrath (2000) 26 Fam LR 169 at 189–90. 61. (2005) 62 NSWLR 392. 62. (1907) 4 CLR 1428 at 1431. 63. Solomon v Solomon (1912) 29 WN (NSW) 68. Cf Jablonowski v Jablonowski (1972) 28 DLR (3d) 440. 64. Puttick v Attorney-General [1980] Fam 1. 65. Lim v Lim [1973] VR 370; In re Wu (1994) 121 FLR 1. 66. In the Marriage of Salacup (1993) 17 Fam LR 141. 67. Cruh v Cruh [1954] 2 All ER 545 at 546. Under the Domicile Act 1982 (Cth) s 7 even after the actual deportation the Australian domicile would continue until a new domicile is acquired. 68. [2007] FMCAFAM 657. 69. See note 68 above, at [23]. 70. Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Thomson Sweet & Maxwell, London, 2012, r 11, p 148. 71. Winans v Attorney-General [1904] AC 287; Ramsay v Liverpool Royal Infirmary [1930] AC 588.

72. (1971) 18 FLR 461. 73. See note 72 above, at 464 (Sugerman ACJ agreeing; Taylor AJA dissenting). 74. [1966] 2 WLR 717 at 725. See also Re Purse (dec’d) [1980] 3 All ER 838. 75. Hyland v Hyland (1971) 18 FLR 461. 76. [1976] 3 All ER 353. See also Browne v Browne [1917] NZLR 668. 77. (2007) 210 FLR 210. 78. The court applied the Domicile Act 1979 (NSW) s 9, which is identical to the Domicile Act 1982 (Cth) s 10. 79. Section 9 of the state Domicile Acts. 80. (1995) 19 Fam LR 227. The decision of the Full Court was later reversed by the High Court of Australia on other grounds: Henry v Henry (1996) 185 CLR 571. The conclusion that the husband was domiciled in Australia was not challenged on appeal to the High Court. 81. See also Humphries v Humphries [1992] NZFLR 18 at 26 per von Dadelszen J; Steele v Steele [1993] NZFLR 282. 82. Domicile Act 1982 (Cth) s 7; s 6 of the state Domicile Acts. 83. See, for example, Re Estate of Jones, 182 NW 227 (Iowa, 1921). 84. See, for example, In the Marriage of Henry (1995) 19 Fam LR 227 (reversed on other grounds, sub nom Henry v Henry (1996) 185 CLR 571), considered above at 13.20, where Mr Henry had shown his intention to abandon his Monégasque domicile of choice by returning his resident’s card to the Monégasque authorities, but nevertheless retained that Monégasque domicile until he acquired an Australian domicile of choice. 85. Plummer v IRC [1988] 1 All ER 97 at 106 per Hoffmann J. See, for example, Ferrier-Watson v McElrath (2000) 26 Fam LR 169, where a Fijian domiciliary was held to have acquired an Australian domicile of choice while retaining a home in Fiji. 86. Domicile Act 1982 (Cth) s 8(2); s 7(2) of the state Domicile Acts. 87. Kertesz v Kertesz [1954] VLR 195. 88. See note 87 above, at 197. 89. Re G [1966] NZLR 1028. 90. Re Cartier [1952] SASR 280 at 291 per Ligertwood J. 91. (1971) 18 FLR 461 at 466. 92. Domicile Act 1982 (Cth) s 12; s 11 of the state Domicile Acts. 93. Humphries v Humphries [1992] NZFLR 18 at 27 per von Dadelszen J. 94. Evans v Evans [1942] SASR 223 at 224. 95. Attorney-General v Kent (1862) 1 HL Cas 12 at 28. 96. Mericka v Mericka [1954] SASR 74. 97. Re Evans [1947] Ch 695; In re Wu (1994) 121 FLR 1. 98. Armstead v Armstead [1954] VLR 733; Mericka v Mericka [1954] SASR 74; In re Wu (1994) 121 FLR 1. 99. Domicile Act 1982 (Cth) s 10; s 9 of the state Domicile Acts. 100. Whitehouse v Whitehouse (1900) 21 LR (NSW) (D) 16.

101. In re Wu (1994) 121 FLR 1. 102. Brown v Brown (1933) 50 WN (NSW) 33; Re Miskovic and Secretary, Dept of Families, Community Services and Indigenous Affairs [2006] AATA 420 at [14]–[20] (no acquisition of domicile of choice during two-year visit to country for spa treatment). 103. (1951) 51 SR (NSW) 293 at 298. 104. [1952] SASR 280 at 291. 105. (1913) 16 CLR 212 at 234. 106. See also Humphries v Humphries [1992] NZFLR 18 at 34 per von Dadelszen J. 107. Re Annesley [1926] Ch 692. 108. Graveson, ‘Capacity to Acquire a Domicile’ (1950) 3 ICLQ 149. 109. (1962) 108 CLR 230 at 240. 110. For example, Re Beaumont [1893] 3 Ch 490; Dunne v Saban [1955] P 178; Robinson-Scott v RobinsonScott [1958] P 71; Buciu v Sabau (1997) 22 Fam LR 75. 111. Domicile Act 1982 (Cth) ss 4(1), 9(4). 112. See note 111 above, s 7. 113. See note 111 above, s 3(2). 114. See Chapter 39. 115. See Chapter 26. 116. See Chapter 40. 117. This was the effect of the Australian Citizenship Act 1948 (Cth) s 10. Anyone who was an Australian citizen under the 1948 Act on commencement of the Australian Citizenship Act 2007 (Cth) on 1 July 2007 continues to be an Australian citizen: Australian Citizenship Act 2007 (Cth) s 4(1)(b). 118. Australian Citizenship Act 2007 (Cth) s 12(1). 119. See note 118 above, s 14. 120. See note 118 above, s 3. 121. See note 118 above, s 13. 122. See note 118 above, s 19B. 123. See note 118 above, s 19D(4)–(8). 124. See note 118 above, ss 15A, 16(2). 125. See note 118 above, s 16(2)(c). 126. See note 118 above, ss 15A, 16(3). 127. See note 118 above, s 16(3)(c). 128. See note 118 above, s 16(1). 129. See note 118 above, s 17(2). 130. See note 118 above, s 16(3)–(5). 131. See note 118 above, s 4(1)(b). See above, note 117. 132. See note 118 above ss 26(1), 28(1). 133. See note 118 above, ss 26(1)(a), (b), 28(2). Certain other classes of persons are also excused from

making pledges of commitment: see ss 21(6)–(8), 26(1)(c). 134. See note 118 above, s 35. 135. Australian Citizenship Act 1948 (Cth) s 17 (now repealed). 136. Australian Citizenship Act 2007 (Cth) ss 32A, 33. 137. See note 136 above, s 33(3). 138. See note 136 above, s 36. 139. See note 136 above, s 34. 140. Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249, followed in Sykes v Cleary (1992) 176 CLR 77 at 110 per Brennan J, at 135 per Gaudron J. See also Koe v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 508 at 515–23 per Black CJ, Foster and Lehane JJ. 141. R v Home Secretary; Ex parte L [1945] KB 7. 142. Ex parte Weber [1916] 1 AC 421. 143. Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249 at 275–6 per Lord Cross. 144. See note 143 above, at 278. 145. US; Ex rel Schwarzkopf v Uhl, 137 F 2d 898 (1943). 146. The view expressed by Lord Cross was accepted as stating the common law in Sykes v Cleary (1992) 176 CLR 77 at 112–13 per Brennan J, at 135–6 per Gaudron J. 147. [1976] AC 249 at 265. 148. See note 148 above, at 263. 149. (1992) 176 CLR 77 at 105 per Mason CJ, Toohey and McHugh JJ, at 110 per Brennan J, at 135 per Gaudron J. 150. Torok v Torok [1973] 3 All ER 101. 151. See Chapter 3. 152. See Chapter 26. 153. See Chapter 30. 154. Family Law Act 1975 (Cth) s 104(3). 155. See Chapter 39. 156. LK v Director-General, Department of Community Services (2009) 237 CLR 582 at 599; 253 ALR 202 at 210, at [24] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ. 157. Re an Infant [1981] Qd 225. 158. (1992) 37 FCR 194 at 198; applied in Lee (by his next friend Lee) v Minister for Immigration and Citizenship (2011) 199 FCR 335; Napiat Pty Ltd v Salfinger (No 7) (2011) 202 FCR 264; 284 ALR 581. 159. [1983] 2 AC 309 at 343–4. 160. (1995) 12 NZFLR 498. 161. Keil v Keil [1947] VLR 383. 162. Beaumont and McEleavy, Hague Convention on International Child Abduction, Oxford University Press, Oxford, 1999, p 94. 163. Norman v Norman (No 3) (1969) 16 FLR 231; Cooper v Casey (1995) 18 Fam LR 433.

164. Re J (A Minor) (Abduction) [1990] 2 AC 562; Corin v Corin (1991) 7 SR (WA) 124. See Beaumont and McEleavy, 1999, pp 96–7. 165. Greig v Fire and All Risks Insurance Co Ltd [1989] 2 Qd R 563. 166. (1992) 37 FCR 194 at 198–9 per Lockhart J. 167. [2005] FCA 932. 168. [2007] FCFCA 195. 169. (1995) 18 Fam LR 433 at 436 per Nicholson CJ. 170. See Beaumont and McEleavy, 1999, pp 91, 110–11. 171. See note 170 above, at p 90. 172. Akbarali v Brent London Borough Council [1983] 2 AC 343. 173. Armytage v Armytage [1898] P 178; Hoy v Hoy (1906) 25 NZLR 857. 174. Firebrace v Firebrace (1878) 4 PD 63. 175. [2011] Fam CA 553. 176. LK v Director-General, Department of Community Services (2009) 237 CLR 582 at 599; 253 ALR 202 at 210, at [24] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ. 177. [2011] Fam CA 482 at [56] per Ryan J. 178. (2009) 237 CLR 582 at 605; 253 ALR 202 at 214, at [40] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ. 179. See note 178 above, at CLR 608–9; ALR 215 at [42]. 180. (2008) 39 Fam LR 431. 181. See note 180 above, at 454, at [73] per Bryant CJ, Coleman and Thackray JJ. 182. McM v C (1980) 5 Fam LR 650; Corin v Corin (1991) 7 SR (WA) 124; LK v Director-General, Department of Community Services (2009) 237 CLR 582 at 609; 253 ALR 202 at 215, at [44] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ. 183. LK v Director-General, Department of Community Services (2009) 237 CLR 582 at 610; 253 ALR 202 at 216, at [45] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ. 184. Holden v Holden [1968] VR 334. 185. Brown v Kalal (1986) 7 NSWLR 423. 186. Re J (A Minor) (Abduction) [1990] 2 AC 562. 187. Glasson v Scott [1973] 1 NSWLR 689; McM v C (1980) 5 Fam LR 650; Brown v Kalal (1986) 7 NSWLR 423; In re S (Minors) (Abduction: Wrongful Retention) [1994] 2 WLR 228 at 239 per Wall J. But if the unilateral change persists for a long period, reality may demand that the new facts be recognised: Beaumont and McEleavy, 1999, p 94. 188. Re B-M (Wardship: Jurisdiction) [1993] 1 FLR 979. 189. [1986] AC 112. 190. (2005) 225 CLR 1 at 16; 210 ALR 369 at 377, at [30]. 191. Caldwell v Caldwell [1946] SASR 185; Jakstas v Jakstas [1957] QWN 17; Judd v Judd (1958) 75 WN (NSW) 147 at 149 per Brereton J; Norman v Norman (No 3) (1969) 16 FLR 231; Re an Infant [1981] Qd R 225 at 226–7 per Kneipp J; Re Application for Adoption of M (1992) 112 ACTR 39 at 45 per Higgins J.

192. [1964] VR 773 at 776. 193. [1983] 2 AC 309. 194. (1992) 37 FCR 194 at 198. 195. [1981] Qd R 225 at 226–7 per Kneipp J; followed in Re Application for Adoption of M (1992) 112 ACTR 39 at 45 per Higgins J. But note the contrary view taken by Williams J in Re an Infant [1973] Qd R 116 at 117. 196. [1974] 2 All ER 940 at 942–3. 197. (2008) 39 Fam LR 431. 198. See note 197 above, at 448, at [47] per Bryant CJ, Coleman and Thackray JJ. 199. [1990] 2 AC 562. 200. See note 199 above, at 578–9 per Lord Brandon. 201. As regards periods after which habitual residence was found to have been established, see V v B (A Minor) (Abduction: Custody Rights) [1990] 1 FLR 266 (three months); Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993 (six months); A v A (Child Abduction) [1993] 2 FLR 225 (eight months). 202. Re R (Wardship: Child Abduction) [1992] 2 FLR 481. 203. See Cooper v Casey (1995) 18 Fam LR 433 at 435–6 per Nicholson CJ, stressing the importance in the context of the Hague Convention on the Civil Aspects of International Child Abduction of the proposition that every child must be regarded as having a habitual residence at all times. Without a habitual residence, a child would not be covered by the Convention and could be subject to repeated parental abductions. But see, contra, note 176 above. 204. A v A (Child Abduction) [1993] 2 FLR 225. 205. Re N (Child Abduction: Habitual Residence) [1993] 2 FLR 124. 206. Re J (A Minor) [1990] 2 AC 562; Corin v Corin (1991) 7 SR (WA) 124.

[page 338]

Chapter 14

Characterisation and the Selection of the Lex Causae Introduction 14.1 The conflict of laws rules do not provide by themselves any substantive rules whereby a problem may be resolved. Thus, if an Australian court were asked to determine whether a marriage celebrated by proxy in Italy was valid or invalid, it could not invoke any conflictual rule which by its own force would decide finally whether the marriage was valid or not. Only the relevant domestic rules of Australian or Italian law can finally dispose of that issue. It is the function of the conflict of laws rules to indicate whether the Australian or the Italian rule ought to be applied. 14.2 Thus, as Lederman has pointed out,1 in a conflict of laws problem two separate sets of rules are applied: the choice-of-law rules of the forum, which he describes as ‘indicative rules’ since they do not by themselves settle the issue as between the parties, but merely indicate the law which will supply the rule or rules settling the issue (the lex causae),2 and the relevant rule or rules of the lex causae which he describes as ‘dispositive rules’ since they will settle the issue between the parties.3 14.3 Consequently, at some stage in the process of resolving a conflict problem, the court must decide upon the appropriate indicative rule to be applied. In Australian law there exists a large number of these indicative or ‘choice-of-law’ rules. Many are common law rules such as the choice-of-law rule for torts considered in Chapter 20, but choice-of-law rules may equally be the subject of legislation.4 Choice-of-law rules are usually expressed in the following terms: the succession to immovable property is governed by the law of the place of situation; the formalities of marriage are

[page 339] governed by the law of the place of celebration; juristic capacity to marry is governed by the law of the domicile, and the like. As will be noted, each of these rules falls into two parts. First, the rule sets out the category to which it applies, such as succession to immovable property, formalities of marriage or juristic capacity to marry. Second, it sets out a ‘connecting factor’ whereby the factual situation before the court can be connected with the legal system of a particular country, such as the law of the place of situation, the law of the place of celebration, the law of the domicile or the law of the place of the wrong. 14.4 Thus, in the example of the proxy marriage, a court would apply as the relevant choice-of-law rule the principle that the formal validity of a marriage is governed by the law of the place of celebration.5 Since we have been told that the marriage was celebrated in Italy, we know now that the Italian dispositive rule must be applied to resolve the issue. According to that rule the proxy marriage is valid. Therefore an Australian court will recognise it as valid. In this example, we are bound by authority to take the view that the rules which prescribe whether the parties (a) should give their consent to a marriage in person; or (b) may do so by proxy, relate to the formalities of the marriage. But when the question of the recognition of a foreign proxy marriage first arose in Apt v Apt,6 a preliminary issue was raised: does the foreign rule which permits marriage by proxy relate to the formalities of marriage? If not, then obviously the choice-of-law rule that the formalities of the marriage are governed by the law of the place of celebration would not be applicable and the court might have to turn to some other legal system, such as the law of the domicile, to supply the dispositive rule. Thus, the court was asked to determine the character of the foreign rule and it resolved the issue by giving it the character of a rule relating to the formalities of marriage. This process is known as ‘classification’ or, more commonly, ‘characterisation’. 14.5 The process of characterisation or classification may also be important in the context of analysing whether or not a foreign court would entertain an ‘Australian’ cause of action such as a statutory claim. It may be necessary to understand how the foreign court would characterise or classify that claim for its own conflict of laws purposes. This is the first step in knowing whether or not the relevant choice-of-law rule of the foreign court would ‘pick up’ the Australian cause of action, a matter that may be important in the context of stay applications and motions for anti-suit injunctive relief. This was why expert

evidence was received in relation to the question of how an English court would characterise a claim under the Trade Practices Act 1974 (Cth) in Reinsurance Australia Corporation Ltd v HIH Casualty and General Insurance Ltd (in liq),7 discussed at 14.7 below. 14.6 It has been assumed in the foregoing discussion that the subject to be characterised or classified is a dispositive rule. There has been much sterile debate [page 340] as to what exactly is being characterised or classified: the facts before the court, the dispositive rules or the legal issue.8 That debate was continued in Macmillan Inc v Bishopsgate Trust plc (No 3),9 where the plaintiff was seeking the return of shares that had been pledged to the defendants in breach of trust obligations owed to the plaintiff. The defendants argued that they were entitled to keep the shares, which they had bought as bona fide purchasers in good faith. The plaintiff argued that its claim was restitutionary in nature, so that the relevant choice-of-law rule was the rule for restitution, which is that the restitutionary obligation is governed by its proper law.10 In this case, that would be the law of the place where the defendant was unjustly enriched, which was England. Because their defence was that they were bona fide purchasers of the shares without notice, the defendants argued that the relevant choice-of-law rule was the rule for transfers of movable property, which is that the effectiveness of the transfer is governed by the lex situs, the law of the place where the property is situated.11 That would lead to the application of New York law, because the shares were situated in New York.12 The English Court of Appeal held that the relevant question was what law governed the issue. Staughton LJ said:13 I am prepared to accept that [the plaintiff’s] claim is restitutionary in nature … But the issue is not, or not any longer, whether [the plaintiff has] a cause of action for restitution; it is whether the defendants have a defence on the ground that they were purchasers for value in good faith without notice of [the plaintiff’s] claim … [Counsel for the plaintiff] went so far as to submit that, once one has determined the law which governs the cause of action, that same system governs all issues which arise in the suit. That cannot be right … I would regard it as plain that the rules of conflict of laws must be directed at the particular issue of law which is in dispute, rather than at the cause of action on which the plaintiff relies. We should translate lex causae as the law applicable to the issue, rather than the suit. In this case the issue is whether in law the defendants were purchasers for value in good faith without notice, so as to obtain a good title to the shares.

14.7 With the exception of the classification of property rights as movables or

immovables which is discussed in Chapter 32 below, the subject to be characterised or classified for the purpose of the conflict of laws is the dispositive rule or rules alleged to be applicable to the issue before the court.14 Thus, if the issue before an English court were whether or not the plaintiff had an entitlement to damages as a result of misleading or deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth), that ‘issue’ would probably be classified as falling within the conflict of laws ‘tort’ category and, as such, fall to be determined according to [page 341] the English choice-of-law rule for torts. If, however, the issue was whether or not a contract induced by misleading or deceptive conduct in contravention of that Act should be varied or rescinded, that issue would be likely to be classified or characterised for conflict of laws purposes as ‘contractual’ and thus as governed by the English choice-of-law rule for contracts.15 The logical consequence of this characterisation exercise is that, if the proper law of the contract was not Australian, there would be no basis for relief under the Trade Practices Act in England. 14.8 Traditionally the process involved in the selection of the lex causae has been represented as a series of three steps that follow logically the one after the other.16 The first step in this series is classification in order to determine whether the facts before the court raise an issue which falls within a category for which a choice-of-law rule exists, such as tort, contract, succession and the like. This process leads to the discovery of the relevant choice-of-law rule, which, of course, contains the connecting factor. The next logical step is the determination of the connecting factor and this in turn will lead the court to the lex causae. A further process may arise whereby ‘it may become necessary to identify the legal category into which some particular rule falls, in order to discover whether it falls within a category with regard to which the law selected by our choice-oflaw rules is paramount’.17 Thus, for example, the forum may have to determine whether a particular rule forms part of the substantive law of succession (the lex causae) or belongs to the law of procedure governed by the lex fori. Characterisation in the conflict of laws may be especially complex where one is dealing with what an Australian lawyer would recognise as equitable obligations. Dicey, Morris & Collins, citing the decision of the New South Wales

Court of Appeal in Murakami v Wiryadi,18 observe that ‘the most persuasive authority tends to suggest that where an obligation that would be equitable in domestic law arises in connection with another legal relationship for which a specific choice-of-law rule exists, the equitable claim will be characterized as falling within the domain of that other relationship and governed by the same law’.19 14.9 A more ‘rolled-up’ and less rigidly sequenced approach to questions of characterisation was articulated by Mance LJ in Raiffeisen Zentralbank v Five Star Trading LLC,20 who said that, while it is convenient to identify the threestage process (referred to at 14.8 above), [I]t does not follow that courts, at the first stage, can or should ignore the effect at the second stage of characterising an issue in a particular way. The overall aim is to identify

[page 342] the most appropriate law to govern a particular issue. The classes or categories of issue which the law recognises at the first stage are man-made, not natural. They have no inherent value, beyond their purpose in assisting to select the most appropriate law. A mechanistic application, without regard to the consequences, would conflict with the purpose for which they were conceived. They may require redefinition or modification, or new categories may have to be recognised accompanied by new rules at stage 2, if this is necessary to achieve the overall aim of identifying the most appropriate law … The three-stage process identified by Staughton LJ cannot therefore be pursued by taking each step in turn and in isolation. As Auld LJ said in Macmillan, at p 407: … the proper approach is to look beyond the formulation of the claim and to identify according to the lex fori the true issue or issues thrown up by the claim and defence. This requires a parallel exercise in classification of the relevant rule of law. However, classification of an issue and rule of law for this purpose, the underlying principle of which is to strive for comity between competing legal systems, should not be constrained by particular notions or distinctions of the domestic law of the lex fori, or that of the competing system of law, which may have no counterpart in the other’s system. Nor should the issue be defined too narrowly so that it attracts a particular domestic rule under the lex fori which may not be applicable under the other system … (emphasis added). There is in effect an element of inter-play or even circularity in the three-stage process identified … But the conflict of laws does not depend (like a game or even an election) upon the application of rigid rules, but upon a search for appropriate principles to meet particular situations.

This approach, and that of Auld LJ in Macmillan, may be described as involving the application of an ‘enlightened lex fori’.21 Mance LJ’s observations on the process of characterisation were cited with approval by Stevenson J in Ocean Marine Insurance Co Ltd v CSR Ltd.22

14.10 Whatever the exact nature of the process, the court is supposed to proceed in a manner analogous to a ‘paper chase’. It is given the facts from which it deduces the appropriate indicative rule. The indicative rule gives the court a clue to the system that will supply the dispositive rule. That ‘dispositive rule’ may in turn call for more evaluation and factual analysis where, for example, the rule is expressed in terms of ‘connection’.23 Finally, if necessary, the substantive law is distinguished from those rules that are not substantive and from what is left the applicable dispositive rules emerge. [page 343]

The Mechanics of Resolving a Conflict Problem 14.11 The ‘paper chase’ theory is, of course, highly unreal. It assumes that the judge or the legal adviser determines the applicable indicative rule without any knowledge about the potentially applicable dispositive rule. The actual process followed is rather the reverse. The first concern of the lawyer will be to discover the potentially applicable dispositive rules. The process which in the law of conflicts is normally referred to as ‘classification’ or ‘characterisation’ is not used until it appears that conflicting dispositive rules from two or more legal systems are applicable to the situation. For example, the characterisation question only arose in Macmillan Inc v Bishopsgate Trust plc (No 3)24 because the plaintiff wanted to rely on English law but the defendants wanted to rely on New York law. Each side came up with a characterisation that pointed towards its preferred law. The court then had to decide which characterisation to prefer. Cases where characterisation may be critical include those where there is a close overlap of legal concepts or categories. Thus, in Macmillan, the competing categories were restitution and property.25 14.12 In other cases, contract and property notions may overlap such as in Wight v Eckhardt Marine GmbH,26 where what was at issue was the effect on a debt of a scheme of arrangement established in Bangladesh pursuant to the Bangladeshi Banking Companies Act and which had the effect of vesting all assets and liabilities in a newly created bank. If the issue were characterised as being whether or not, as a matter of contract, the debt owed had been modified or discharged, that matter would be governed by the proper law of the contract

giving rise to the debt (which was the law of Bangladesh); if, on the other hand, it were characterised as whether or not title to the debt had passed to the new bank, the question as to the effect of the scheme would be determined by the situs of the debt (which was not Bangladesh). The effect of the Privy Council characterising the issue as one of contract was that the debt had been extinguished, and the ‘creditor’ no longer had that status and thus was unable to prove in the original bank’s winding up in the Cayman Islands. 14.13 It is true that a process of classification must be applied to the facts at the very outset of the inquiry. The facts as they are presented to the lawyer by the client must be given some legal significance. This is what Graveson describes as the ‘first stage in the process of classification, namely, the selection from the sum total of facts in a particular set of circumstances of those facts which correspond to the hypothetical basis of the relevant rule of law’.27 Thus, a man may tell his solicitor that he married a fair-haired woman in a church without being personally present. The solicitor will select from these facts those that have legal significance; namely, that a marriage took place at which the husband was represented by proxy. This undoubtedly is a process of classification, but it has nothing to do with the conflict of laws. Only dispositive rules can determine the legal character of the facts since they only can determine what is necessary to constitute a valid marriage and [page 344] whether the fact that the woman is a blonde Nordic or a black African has any relevance. Thus, the solicitor must classify the facts purely as a matter of applying the domestic rules of a particular system of law, which will normally be the system in which that solicitor practises. The client may disclose that the marriage took place in Italy. The solicitor now knows that other legal systems may be involved and that the facts stated by the client may possess a different legal significance under those legal systems applying. 14.14 At this stage the conflict rules of the forum may have to be consulted in order to find out what other legal systems may be relevant. The law of the forum, as the law prima facie applicable in any situation, is always potentially applicable. The legal systems of countries with which the parties or the facts have no connection can be readily dismissed. But what happens if the client tells his solicitor that at the time of his Italian marriage he was a citizen of Hungary

and his bride an Austrian national? The solicitor must then investigate whether, under the conflicts law of Australia, the fact of nationality has any relevance in relation to this marriage. If it has not, there is no need to consider the law of Hungary or Austria. Thus, in the example given, the solicitor will come to the conclusion that of all the legal systems with which the parties or the facts are connected, only the law of Australia and of Italy have a claim to be considered. This process, though adorned with the title of ‘provisional classification’28 is really a process of narrowing the issues by eliminating all that is on any view irrelevant. The terms ‘classification’ or ‘characterisation’ are better reserved for the determination of the final issue upon which the choice of an indicative rule depends. 14.15 The solicitor, knowing that the law of Italy may be relevant, must now find out what legal significance the facts bear under Italian law. This again is a process of classification solely for the purpose of applying the domestic rules of Italian law. The solicitor is now aware of the relevant dispositive rules of Australian and Italian law and the next question is to determine whether there is any conflict between them. If the law of Australia and that of Italy agree that a marriage may, or may not, be celebrated by proxy, there is no conflict of laws and none should be created. The question of classification, therefore, does not arise. This common-sense precept has not always been observed. Astute counsel have at times manipulated the classification process in such a fashion as to make it appear that of the two identical dispositive rules neither was applicable. In most instances the good sense of the judges has prevailed,29 but in some rare cases they have succumbed to such absurd propositions.30 14.16 If Australian law requires that the parties be personally present at the marriage ceremony and the law of Italy permits one party to be represented by proxy, there is prima facie a conflict of laws and a different potential legal outcome which may be in the forensic interests of one party to pursue by raising the issue. It is only at this [page 345] point that classification as a means of resolving a conflicts problem becomes relevant and significant. In the traditional reasoning of the courts, the conflict is resolved by invoking a choice-of-law rule. But the number of choice-of-law rules is limited and the courts are reluctant to create new ones. Thus, if a new

situation arises,31 the courts will typically solve the problem by pretending that it is an old situation for which a choice-of-law rule already exists. This was the position when in Apt v Apt the English courts were asked for the first time to recognise a proxy marriage celebrated abroad. Since it was a new situation there was no choice-of-law rule applicable to proxy marriages as such. There was a choice-of-law rule that said that the formalities of marriage were governed by the law of the place of celebration. There was another choice-of-law rule dealing with the substantial validity of marriage. Thus, the issue before the court was stated by Lord Merriman in the following words: ‘[I]nto which category, form or essence, do proxy marriages fall?’.32 14.17 This, of course, is a question of classification and upon the classification ultimately adopted by the court would depend the entire outcome of the case. If the court classified the celebration of the marriage by proxy as a matter of form, as it in fact did, the inevitable result would be that the marriage would be upheld as valid according to the law of the place of celebration. If the court classified the celebration of the marriage by proxy as a matter of essence, the law of the place of celebration could not be invoked to sustain the marriage. A realist might therefore say that the real issue before the court in Apt v Apt was: should an English court recognise a marriage by proxy celebrated between an Argentinean and an Englishwoman in Buenos Aires according to Argentinean law?33 14.18 Thus, there are two ways of solving a conflicts problem. First, one can adopt a purely analytical process of classification by saying that the problem is to be solved by fitting the apparently new situation into an existing category for which a choice-of-law rule already exists. This is done, as in Apt v Apt, by saying that the matter before the court bears some inherent legal character, such as ‘a matter of formalities’, which puts it squarely within the ambit of an existing choice-of-law rule. Thus, the court in effect says: the law of X ought to be applied because the matter is one of form. The second method of solving the problem is by stating the issue as it really presents itself: there being a conflict of laws, should the law of X be preferred over that of the forum? This question can only be resolved by consulting the law of the forum. Once that question has been determined, the solution may for the sake of judicial convenience be summed up in the language of classification. Thus, the court in effect says: the matter is one of form because the law of X ought to be applied. [page 346]

The analytical approach 14.19 A good example of this approach is seen in the reasoning of Eve J in Re Korvine’s Trust.34 In that case a domiciled Russian while fatally ill had made a conditional gift of movables situated in England to a woman friend. The gift was to take effect if he died. Such a gift is known to the common law as a donatio mortis causa. The institution was not known to Russian law, which would treat the gift as an ineffective attempt at testamentary disposal. There was no choiceof-law rule dealing with donationes mortis causa. The choice-of-law rules most nearly applicable were: (a) the rule dealing with gifts made inter vivos which would make the law of England applicable as the lex situs; and (b) the rule dealing with the succession to movables on death which would point to the law of Russia as the lex domicilii of the deceased. 14.20 Eve J classified the gift as a gift inter vivos by the following reasoning:35 … it is … a gift subject to revocation by the act of the donor himself or by his recovery from his illness. If he dies without revoking the gift the donee’s title is derived from the act of the donor in his lifetime and relates back to the date of that act.

His Lordship saw, therefore, in the rules relating to donationes mortis causa a strong and inescapable analogy with the rules relating to gifts inter vivos. The fact that donationes mortis causa were considered part of the estate of the deceased for the purpose of administration of assets and the payment of death duty was considered irrelevant. 14.21 If one follows the analytical approach one must distinguish between two types of situation. The first situation occurs where there is no choice-of-law rule clearly applicable, as happened in Re Korvine’s Trust. In that case the court must find the nearest choice-of-law rule and try to fit the relevant dispositive rule into the one rather than the other. An example of this is the decision of the New South Wales Court of Appeal in Union Shipping of New Zealand Ltd v Morgan36 where the issue was whether, with regard to a tort occurring wholly on board a New Zealand flagged vessel in Port Kembla harbour, the owner’s liability was to be determined by the law of the flag (which would be the applicable law had the incident occurred on the high seas) or the law of New South Wales as the law of the ‘territory’ or ‘territorial water’ in which the vessel was situated when the injury occurred. The latter solution was preferred. 14.22 The second situation occurs where the subject matter to be classified is given one label by the law of the forum and another by the foreign law potentially applicable. This situation has given rise to a great deal of academic

exercise and, indeed, it can give rise to some delightful academic problems. Assume, for instance, that a Sydney man had promised marriage to a French woman. The marriage was to take place in France and the parties were afterwards to live in Sydney. However, the promisor failed to turn up at the wedding. Assume once more that he had good excuse under the law of France, but none under the law of New South Wales. Both the common [page 347] law37 and the French Civil Code give relief for the breach of promise of marriage. The common law regards this aspect of the law as part of the law of contract, while French law subsumes it under the heading of the law of torts. If the disappointed bride brings suit in New South Wales she will be told that New South Wales has separate choice-of-law rules dealing with contracts and torts respectively. The rules dealing with torts will enable the man to rely on his French defence, while the rule dealing with contracts will make the law of New South Wales solely applicable. Thus, the success or failure of the action will depend upon the application of the common law or the French classification. 14.23 A number of solutions have been put forward to resolve such a conflict of classifications. One solution, which has the support of many continental jurists,38 is that only the law of the forum can decide the nature of the legal rule which must be classified. After all, so the argument runs, the forum must classify in order to apply its own choice-of-law rules. Consequently, why should the classification adopted by a foreign legal system for its own purposes be relevant in applying the choice-of-law rules to the forum? A difficulty may arise where the court is asked to classify a foreign rule that has no counterpart in the law of the forum; for example, one relating to homosexual marriage or a right of action for infringement of privacy. In that case the adherents of the lex fori argue that the court must proceed by taking the nearest local equivalent of the foreign rule. If there is none, it may have to be denied recognition. But the fact that the foreign rule is contained in a statute should be no obstacle to its classification into an established category for conflict of laws purposes. Thus, the category or classification ‘tort’ has been used to denote not merely civil wrongs known to the common law but also acts or omissions which by statute are rendered wrongful in the sense that they give rise to a civil action to recover damages occasioned by that wrong.39 For example, a claim brought in Australia under the Sherman Act would most likely be characterised or classified in the ‘tort’ pigeon hole and the

choice-of-law rule for ‘tort’ would be applied.40 That choice-of-law rule would point to the law of the place of the wrong as the dispositive law to be applied. If the Sherman Act had been invoked in respect of some extraterritorial wrong — that is, a wrong the constitutive conduct of which took place outside of the United States of America — it would be the law of that place which should be applied to determine liability. That law would not necessarily (and probably would not) include or pick up the Sherman Act.41 [page 348] 14.24 Opposed to the solution of applying the law of the forum to the question of classification or characterisation stands the view of those who maintain that the court should classify according to the law from which the rule is derived.42 In this manner, so it is argued, the forum avoids the danger of distorting a foreign rule by reflecting it in the mirror of its own legal concepts. This solution also avoids the difficulty of having to classify, according to the law of the forum, foreign rules which are unknown to it. 14.25 Finally, the view has been put forward that classification should be based on general principles of analytical jurisprudence and comparative law.43 This, of course, would be an ideal solution since it would effectively prevent any conflict of classifications. But the search for a common classification to which all legal systems can subscribe is so hopelessly doomed that no judge has ever sought to attempt it. That having been said, Auld LJ in Macmillan v Bishopsgate Investment Trust plc44 advocated a more internationalist and less parochial approach to questions of characterisation, noting that ‘the underlying principle is to strive for comity between competing legal systems’. 14.26 Even if the choice were to lie only between the first and second solutions, a look at the decided cases makes confusion worse. Most judges have been happily unaware of the problem. The earliest and predominant tendency is to classify according to the law of the forum. As Brennan J said in Oceanic Sun Line Special Shipping Co Inc v Fay: ‘Classification is, of course, a matter for the law of the forum’.45 Thus, English courts have persistently classified continental statutes of limitation as procedural by applying a purely English test, even though most continental systems regard such statutes as substantive.46 In similar disregard of foreign law, English courts have classified as procedural the French requirement that minors may not marry without parental consent, though in

French law non-compliance is a ground for annulment.47 14.27 In most of these cases the conflict between classifications simply was not put to the court. But there are several cases in which the courts have made it clear that the lex fori’s classification was to be applied. Thus, in Huntington v Attrill,48 the Privy Council applied the English definition of a ‘penal law’ to a New York statute, even though the courts of New York had held otherwise. In SA Metallurgique de Prayon v [page 349] Koppel,49 Roche J refused to accept the German classification of its own statute of limitations as substantive and held it to be procedural. In Lee v Lau50 Cairns J held that what the Chinese called ‘concubinage’ amounted to a polygamous marriage in English law. In De Reneville v De Reneville51 Lord Greene MR stated that: It would be for the English court, after hearing evidence of French law, to decide whether in French law the marriage was void or voidable not merely in a verbal sense but in the sense of the words as understood in this country.

In Martin v Kelly,52 the Appeal Division of the Supreme Court of Victoria characterised as procedural a statutory cap on damages fixed by South Australian legislation, and so did not apply it, notwithstanding the fact that the South Australian Act contained a provision effectively stating that the cap was substantive in nature. The New South Wales Court of Appeal did much the same thing in respect of Queensland legislation concerning personal injury and caps on awards.53 14.28 However, there are also several decisions in which the courts have taken into account the classification of the foreign rule according to the legal system from which it was taken. An early example can be seen in the decision of the House of Lords in De Nicols v Curlier (No 1),54 where the court was asked to classify the provision in the French Civil Code which provided that parties to a marriage held their property in community, unless they had contracted to the contrary in a marriage settlement. The spouses in question had married in France while they were still domiciled there without entering into a marriage settlement. Later they had moved to England where the husband died domiciled. The widow claimed that half of his property belonged to her as her share in the community property. Her claim would succeed if the French rule could be regarded as

creating a marriage settlement, in which case French law would prevail as the law of the domicile at the time of the marriage. However, if the proper classification of the French rule was that it provided for a right of succession, then English law, as the law of the last domicile of the deceased, would bar her claim. The House of Lords accepted evidence that French law regarded the relationship resulting from a marriage without an express marriage settlement as if the spouses had entered into a marriage settlement in the terms of the provisions of the Civil Code. Though the concept of a contractual relationship imposed by law was then unfamiliar to English law, the House of Lords accepted the analogy to a contract in English law. 14.29 Subsequently, in Re Cohn,55 Uthwatt J had to classify a section of the German Civil Code, which provided that, where it cannot be shown that of several deceased persons one has survived the other, it is to be presumed that they died simultaneously. His Lordship looked at the place of this section in the German Civil Code and noted that it appeared in the chapter headed ‘Law of Inheritance’ and [page 350] not in that headed ‘Law of Evidence’. Consequently, he classified it as part of the substantive inheritance law of Germany. 14.30 A similar approach was taken by Barnard J in In the Estate of Maldonado, deceased.56 In that case the deceased had died domiciled in Spain leaving movable property in England. He had not made a will nor did he have any next of kin. The English Crown claimed the property as bona vacantia. However, the Spanish state also claimed the property in accordance with a provision of the Spanish Civil Code which made the state of Spain the ultimate heir of Spaniards dying without a will or next of kin. 14.31 A claim by a sovereign authority to seize property depends upon the lex situs, while a claim to succeed on inheritance of movables is governed by the law of the last domicile of the deceased. Barnard J decided that the issue depended upon the classification of the Spanish rule: In examining the Spanish law in order to ascertain whether or not the State is a true heir according to Spanish law, I have accepted the Spanish concept of heirship, for it would be wrong in my view to apply the English conception when dealing with Spanish law; and even to try to apply the nearest English equivalent to the Spanish conception of heirship would only lead to confusion.

Accepting the Spanish conception of heirship, his Lordship classified the Spanish rule as relating to succession.57 14.32 These decisions can, of course, be reconciled with the principle that classification must take place according to the lex fori. Indeed, if the analytical approach is to be applied, all rules, be they domestic or foreign, must be fitted into one of the categories that the lex fori has established for the purposes of its choice-of-law rules. The foreign classifications can be taken into account, as the last three cases illustrate, but the lex fori must still determine the ultimate boundaries of its own categories. 14.33 Most textwriters agree that in principle classification must proceed according to the lex fori.58 Yet none wishes to follow the example of those English judges who automatically applied domestic criteria when classifying for the purposes of the law of conflicts. Thus, the editors of Cheshire, North & Fawcett draw a distinction between the classification of the cause of action and the classification of rules of law. By the former they mean ‘the allocation of the question raised by the factual situation before the court to its correct legal category’ with the object of revealing ‘the relevant rule for the choice-of-law’.59 This process must be performed according to the lex fori flexibly interpreted in order to embrace analogous foreign legal concepts.60 Once the lex causae has been discovered, the editors argue that another and different type of classification may have to be used; namely, the process of identifying ‘the legal category into which some particular rule falls, in order to discover whether it falls within a category with regard to which the law selected by our choice-oflaw rules [page 351] is paramount’.61 Thus, it may have to be determined whether a given rule relates to substance or procedure. If the rule is part of the lex fori the process of classification must be performed according to the same liberal standards as are applied to the classification of the cause of action; the court must be careful not to apply a purely domestic criterion when this might result in the unwarranted denial of a foreign right.62 However, if the rule of law is part of the lex causae, its character must be determined by taking into account the classification of the lex causae.63 14.34 Graveson also draws a distinction between two stages in the process of

classification.64 However, unlike in Cheshire, North & Fawcett, he does not argue that a different law should be applied in each stage. Graveson also takes the view that the process of classification must be determined ‘by the lex fori in the wider sense’.65 But, at the end of his discussion he concludes that the English practice in classification is empirical and based in part on extralegal concepts such as justice, convenience and common sense. ‘Accordingly, while the choiceof-law in classification is generally the lex fori the courts have not been inhibited by doctrine from departing from this rule where the circumstances of the case required.’66 14.35 The admission on the part of all the above-mentioned textwriters that the classifications of both the lex fori and the lex causae proper are inappropriate in most situations shows up the inadequacy of the analytical approach. For ‘the lex fori in the wider sense’ is not a legal system at all; it is something the judges invent as they go along. 14.36 The analytical approach is based on the premise that each situation before the court has its own inherent legal character. But this is simply not true. Thus, in Re Korvine’s Trust67 the learned judge could with equal justice have come to the conclusion that the English rule relating to donationes mortis causa is part of the law of inheritance by stressing the fact that under English law the subject matter of the gift is considered part of the estate for the purpose of administration of assets and the payment of death duty. By ruling these considerations out of order, he set the terms of his inquiry so narrowly that only one answer was possible. 14.37 In most cases there can be no indication what the inherent legal character of the rule in question is. There is, for example, a rule in force in England and Australia to the effect that marriage revokes all wills previously made. Should this rule be subsumed under the conflict rule dealing with matrimonial law or under the rule dealing with succession law? In Re Martin68 Jeune P frankly confessed that there was nothing in the rule that indicated the one classification rather than the other. [page 352] He finally decided in favour of succession law as the more reasonable solution. However, the Court of Appeal69 decided on the opposite classification without giving any satisfactory reason.

14.38 At times the courts have had to acknowledge that there was no choice-oflaw rule even remotely applicable. Thus, it is hard to fit new legislation, such as Workers’ Compensation Acts, into the traditional choice-of-law rules. Are they to be regarded as creating rights based on torts or on contract? In Mynott v Barnard,70 the High Court wisely held that it was neither and set out to frame a new choice-of-law rule based on such policies as could be inferred from the statute. 14.39 It is submitted that the situation in Mynott v Barnard cannot be distinguished from the situations in Re Korvine’s Trust and Re Martin. In each of these cases there was no ready choice-of-law rule applicable and the court was in effect asked to create one. Nor can one draw a distinction between these situations and the case where the classification of the rule in question has already been determined for domestic purposes. It has already been pointed out that there is general agreement among textwriters that a domestic qualification ought not to be applied automatically. Since there is no such thing as a ‘lex fori in the wider sense’, they are in fact saying that the courts must consider the question of classification de novo, guided, but not bound, by the domestic classification. 14.40 This part of the chapter would not be complete without a consideration of equitable claims and, in particular, equitable wrongs. Assume that there is brought in an Australian court a claim for equitable compensation for breach of fiduciary duty or for a constructive trust for knowing assistance in a breach of trust, but where the relevant acts in question — the breach of fiduciary duty or the act of knowing assistance — physically occurred beyond Australian territory. How is the issue of such liability to be characterised for conflict of laws purposes, especially bearing in mind that ‘equity’ is quintessentially a creature of common law? Dicey, Morris & Collins notes the importance of not rigidly translating categories of domestic legal classification into conflict of laws analysis, and goes on to observe that:71 One area in which the problem of characterisation may be seen to be particularly acute is when an English court is called upon to deal with a claim which, if it were wholly domestic, would be regarded as equitable. When such a case contains a foreign element, the question arises whether there is a category of issue labelled ‘equitable issues’ for the purpose of choice-of-law. In some cases, such as where an application is made for specific performance of a contract, it will be clear that the issue is contractual, or contractual in part and procedural in part. In others, such as where it is alleged that a defendant has committed a wrong which corresponds to the equitable wrongs of knowingly receiving trust property, or dishonestly assisting another in a breach of trust, it is arguable that the issue of substantive liability is to be characterised as tortious. In still others, such as where it is alleged that a company director owes duties of loyalty to the company, it is arguable that the issue of substantive liability is to be characterised as falling within the category of issues reserved to the law of incorporation. These

[page 353] instances lend no support to the proposition that the term ‘equitable’ has a discrete role to play in the characterisation of issues for the purpose of choice-of-law.

There is also much to be said for the observation of Tipping J in AttorneyGeneral of England and Wales v R:72 It is difficult to see the logic or overall desirability of making a distinction between legal issues and equitable issues when deciding which legal system should govern the contract in question. The making of such a distinction can lead to quite unnecessary difficulties and potential inconsistencies. It would also tend to depart from the general direction in which most legal systems comparable to ours have been moving in recent times … It would be anomalous to apply one system of law to an issue which would have arisen at law, and another to an issue which would have been for the Courts of Equity to deal with. I make these remarks simply to note the point and to endorse the acceptance of the parties that all issues fall to be determined according to English law.

As shall be seen in Chapter 21 below, Australian courts tend to overlook the need for and importance of characterisation in cases where equitable relief arising from foreign actions is claimed.

The functional approach 14.41 The foregoing remarks illustrate the truth of Bland’s comment in his article, ‘Classification Re-Classified’73 that ‘classification’, as that term has traditionally been used in the conflict of laws, does not refer to the process of selecting the appropriate choice-of-law rule as is generally supposed. By the process of classification the court makes a direct choice between the apparently conflicting dispositive rules and formulates its decision either in terms of an existing choice-of-law rule, as happened in Apt v Apt,74 or in a choice-of-law rule which is entirely new, as was done in Mynott v Barnard.75 In every case, as Bland concludes: ‘“Classification” is synonymous with the problem of “selection of law”’.76 14.42 This has at times been perceived by the courts. A striking example is seen in the so-called Greek Bond Cases.77 These cases arose out of the issue of certain sterling mortgage bonds before the Second World Bank by the National Mortgage Bank of Greece, and guaranteed by the National Bank of Greece. Both banks were Greek corporations. After the war the guarantor bank and a third Greek bank not connected with the bonds were amalgamated by decree of the Greek Government into a new entity: the National Bank of Greece and Athens. The Greek law relating to amalgamation of corporations provided that a new

corporation should succeed to all the assets and liabilities of any corporations that had been amalgamated into it. The bondholders sought to enforce the liability of the National Bank of Greece against the new corporation. [page 354] 14.43 There were two relevant choice-of-law rules. It was settled that the question of whether a novation of the contract has taken place depends upon the proper law of the contract.78 In this case the proper law was English and the situation certainly did not amount to a novation under English law. The other choice-of-law rule was that the question of whether a corporation has a legal personality depends upon the law of incorporation, or, as it is sometimes put in less accurate terms, that questions relating to the status of a corporation are governed by the law of incorporation. In this case the law of incorporation was Greek and under Greek law the National Bank of Greece, the original debtor, no longer existed as a distinct legal personality. But under the law of Greece the new entity was liable for the debts of the old entity, which had been merged into it. In traditional parlance, this raised a problem of classification: was the Greek law providing for the succession by the new corporation to the liabilities of the old corporation a law relating to contract or a law relating to the status of the corporation? 14.44 Viscount Simonds in National Bank of Greece and Athens v Metliss79 did not consider the problem in such abstract terms. He saw it rather as a question of whether an English court ought to give effect to the Greek law. This raised questions of policy, not labelling. As his Lordship put it:80 But, my Lords, in the end and in the absence of authority binding this House, the question is simply: What does justice demand in such a case as this? I believe that justice will be done if your Lordships think it right not only to recognise the fact that the new company exists by the law of its being but to recognise also what it is by the same law. It is conceded that its status must be recognised. That is a convenient word to use. But what does it include or exclude? If a corporation exists for no other purpose than to assume the assets, liabilities and powers of another company, what sense is there in our recognising its existence if we do not also recognise the purposes of its existence and give effect to them accordingly. If for reasons of comity, we recognise the new company as a juristic entity, neither the Greek government, the creator, nor the new company, its creature, can complain that we too clothe it with all the attributes with which it has been invested. Thus, and thus alone, as it appears, justice will be done.

14.45 The Greek Government sought to circumvent the decision of the House of Lords that the new bank was liable for the debts of the old bank by passing a

decree, known as ‘Act 3504’, amending with retrospective effect the law dealing with the amalgamation of companies. It was now provided that upon amalgamation the new corporation inherited all the assets and liabilities of the old corporations except liabilities to foreign bondholders expressed in foreign currency. The Greek Government clearly sought to rely upon the earlier decision of the House of Lords to support its contention that laws regulating the succession of corporations were laws relating to the ‘status’ of the corporations. But the House of Lords took a different view. When the bondholders brought their case before the House of Lords once again in Adams v National Bank of Greece SA,81 Viscount Simonds said: [page 355] It is upon the reiteration of the blessed word ‘status’ that the respondent bank relies. The obligation rested on status: the status was altered: the obligation disappeared — in fact it was never there. My Lords, I doubt whether anything is to be gained by debating whether Act 3504 should be described as an Act affecting status or an Act discharging contracts. Give it what label you will, its effect is that it purports to relieve the respondent bank of a liability theretofore enforceable against it, and, for my part, I should not hesitate to say that the principle of private international law in regard to discharge or alterations of a contract is applicable whatever device or nomenclature is used, if the effect of the challenged decree is the discharge or alteration of contractual rights.

14.46 Thus, the Greek law was not given effect in this case since it was obviously a subterfuge directed at depriving the bondholders of the rights to which they were entitled under the law governing their contracts. The Greek Bond Cases also illustrate what criteria the forum will apply in determining whether to admit the foreign rule or not. In both cases the court considered the policy of the forum. In the first case the main policy consideration was the interest of justice; in the second the court vindicated the English policy that obligations under a contract should be determined exclusively by the proper law of the contract, which bondholders may well have selected in preference to some other legal system in order to avoid the difficulties associated with an unstable currency or government. 14.47 A clear judicial admission that a policy choice often underlies classification is found in the speech by Lord Wilberforce in Chaplin v Boys,82 where he said:83 But I suspect that in the ultimate and difficult choice which has to be made between regarding damages for pain and suffering as a separate cause of action and so governed by the lex delicti or treating them as merely part of general damages to calculate which is the prerogative of the lex fori, two alternatives which are surely closely balanced in this case, a not insubstantial makeweight,

perhaps unconscious in its use, is to be found in a policy preference for the adopted solution.

This is not a plea that the court in each case should make an ad hoc decision whether to admit a foreign rule or not, depending on considerations peculiar to that case. Indeed, that danger is much more likely to arise where classification proceeds purely by abstract qualities. Since abstract qualities are fictions the courts are in fact exercising a discretion for which they do not have to account. Thus, to return to the facts in Re Korvine’s Trust, one must admit that the application of the label ‘gift inter vivos’ to the donatio mortis causa was in a sense arbitrary. One cannot dispute the correctness of the judge’s reasoning, but neither could one have disputed it had Eve J chosen the opposite course and labelled it ‘succession’. It may be that Eve J was impressed by the fact that the donee was attractive, or that he wished to uphold the validity of a gift made in England and valid under English law. The last reason one might consider a good reason of policy, the former might be considered frivolous. The fact remains that we simply do not know what reason impelled the judge. However, if the judge realises that the true issue is whether the foreign rule should be given effect to, not only in the circumstances of the particular case before [page 356] the court, but in all like cases in the future, the judge must formulate some general policy such as one in favour of upholding dispositions made by persons facing death, which can be criticised as being either good or bad, depending on its effectiveness and its consonance with reality. 14.48 An example of this approach is seen in the decision by Scarman J in In the Estate of Fuld, deceased (No 3).84 In that case a person had died domiciled in Germany being possessed of movables in England. He had made a will and several codicils. The validity of some of these testamentary dispositions was contested on the grounds that the testator lacked testamentary capacity and that there had been undue influence. The various issues had to be decided by Scarman J on an application for probate in solemn form. 14.49 The basic choice-of-law rules applicable were clear: matters of substance affecting the inheritance were governed by German law, as the lex domicilii; matters of procedure were governed by English law, as the lex fori. His Lordship first asked:85 When is a question one of substantive law? When is a question merely one of evidence or

procedure? I attempt no general answer to these questions: for answer can only be made after analysis of the specific questions calling for decision, their legal background and factual context.

14.50 His Lordship then set out the dispositive rules of German and English law on the issues involved. He found that ‘each requires, as a rule of substantive law, that a will to be valid must express the true intentions of a free and capable testator, and each attaches the same essential meaning to capacity and free will’.86 Thus, there was no conflict and hence no need to resolve it. His Lordship did find, however, that there was a conflict between the English and German rules which defined the standard and burden of proving that a testator lacked testamentary capacity. 14.51 His Lordship resolved the conflict by preferring the English rule. He reasoned as follows:87 The English court is being asked to grant probate in solemn form. On it falls the responsibility of deciding whether the instruments propounded express the real intentions of the testator. In my judgment the discharge of this responsibility is a matter for the judicial conscience of the court, guided in the business of investigation and proof by its own lex fori.

In this passage his Lordship states a policy reason why the English rule should be preferred by an English court in the situation before him and in future situations of a similar character. He is in fact propounding a new choice-of-law rule to the effect that an English court which is asked to grant probate in solemn form must be satisfied that the document propounded represents the real intentions of the testator according to the standard of proof laid down by English law. In order to conform to traditional practice his Lordship did not in fact expressly formulate such a new rule, but achieved the same effect by classifying the English rules as procedural. Then he could invoke the existing choice-of-law rule that matters of procedure are governed [page 357] by the law of the forum. But this classification merely sums up a conclusion already achieved by other means. It is, in the words of an eminent American commentator, merely ‘a shorthand expression for the interpretation of the forum’s domestic rule and, if forum law had a formulated conflicts rule, also of the latter’.88 14.52 A somewhat similar proposition is put forward by the present editors of Dicey, Morris & Collins. They argue that ‘characterisation is a process of

refining English conflict rules by expressing them with greater precision’.89 This is to be done by considering ‘the rationale of the English conflict rule and the purpose of the rule of substantive law to be characterised’. If it does not fit into the rationale of an existing conflicts rule, then a new conflicts rule should be created. This is very much what Scarman J did in Re Fuld. The rationale of the rule or policy that procedure is to be governed by the law of the forum is to protect the integrity and efficiency of the judicial process. The grant of probate in solemn form by an English court offers a guarantee of the validity of the will to the public. Hence, it should apply its own standard of proof. Like the editors of Dicey, Morris & Collins, we do not argue for a pure result-oriented approach, but for a policy-oriented approach that reflects the reality of what judges actually do. Thus, in relation to statutory caps on damages, for example, the classification should not depend on the wording of the statute, but on whether the efficiency of the domestic judicial process demands its application to all litigation in the forum state even if the cause of action has arisen elsewhere.90

The Determination of the Connecting Factor 14.53 Each choice-of-law rule contains a localising factor. Thus, the rule relating to the formalities of marriage refers to the place of celebration, the rule relating to the essential validity of marriage refers to the domicile, the rule relating to torts relates to the place of commission of the tort, and so forth. At first sight it might appear that the identification of the connecting factor requires no more than the application of the legal formula defining same to the facts of the case before the court. But there may be complications. 14.54 There may be, for instance, a conflict as to the meaning of the connecting factor between the two countries whose dispositive rules are in conflict. Thus, in Simmons v Simmons,91 a man whose domicile of origin was New South Wales lived for a considerable time in New Caledonia and died there, leaving movable property in New South Wales. There was no doubt as to the choice-of-law rule to be applied: the succession to movables is governed by the law of the deceased’s last domicile. According to the law of New South Wales, which was the forum, he died domiciled in New Caledonia. But the law of New Caledonia, as it then stood, required an official permit before a person could, under New Caledonian law, obtain a legal [page 358]

domicile there. Street J ignored the New Caledonian definition of domicile and determined the issue ‘according to the principles of English law by which the fact of domicile in any given case is determined’.92 This has also been the consistent policy of English courts.93 14.55 There are no express decisions as to the law applicable in the determination of the other connecting factors. But, in situations where a conflict would have arisen the courts have simply applied the definition of the forum without inquiring whether the other legal system had any definition to the contrary.94 Textwriters are also generally in agreement that the connecting factor, other than nationality, must be defined according to the lex fori.95 14.56 However, here again one may ask whether a strictly analytical approach is justified. As Ehrenzweig points out: ‘… localisation, like characterisation, is merely a facet of interpretation’.96 In other words, the court, when it determines the scope of a choice-of-law rule of the forum, must keep in mind the policies underlying that rule. An inflexible definition of concepts such as ‘domicile’, ‘place of wrong’, and the like would too rigidly confine these policies. It simply is not possible to determine the domicile of a person divorced from the purpose for which it is sought to be determined.97 14.57 A single example may suffice. Take, for example, the facts in Ramsay v Liverpool Royal Infirmary.98 George Bowie, whose domicile of origin was Scotland, came to England to ‘sponge off’ his relatives. He did so successfully for almost 40 years until he died in England. However, he made a will in a form permitted by the law of Scotland but not by the law of England. Under the relevant choice-of-law rule the validity of the will had to be determined by the law of his last domicile. The House of Lords held it to be Scotland. Their Lordships justified this conclusion by reasoning that purported to have application whatever the purpose for which the domicile of George Bowie might be relevant. Had he been married and sought matrimonial relief in England, theoretically their conclusion would have been the same. Yet one may doubt whether the House of Lords would in such a case have applied the same rigid standards.99 Can one not hazard the suggestion that the House of Lords was influenced by the traditional English policy which favours giving effect to the last wishes of the testator whenever possible? [page 359]

14.58 The trend towards a greater flexibility in interpreting the connecting factor is seen in the substitution of the ‘proper law of the contract’ for the lex loci contractus or solutionis as the governing law of contracts.100 ____________________ 1.

Lederman, ‘Classification in Private International Law’ (1951) 29 Can B Rev 3 at 168.

2.

See, for example, The Ocean Marine Insurance Company Limited v CSR Limited [2012] NSWSC 1229 at [79]–[80].

3.

Whether the rule or rules of the lex causae will include that system’s conflict of laws rules or simply the domestic or ‘municipal’ laws of the lex causae is the problem of renvoi, discussed in Chapter 15 below.

4.

In the United Kingdom, for example, the choice-of-law rule for torts is contained in the Private International Law (Miscellaneous Provisions) Act 1995. Examples of Australian statutory choice-oflaw rules are those proposed in Pt 7.2 of the Personal Property Securities Act (Cth) (see Chapter 33 below).

5.

This was decided in Apt v Apt [1947] P 127; affirmed by the Court of Appeal [1948] P 83. The decision has been followed in Australia: Cristofaro v Cristofaro [1948] VLR 193; Luder v Luder [1964] ALR 3.

6.

[1947] P 127.

7.

(2003) 254 ALR 29.

8.

The various theories are canvassed by Robertson in his text, Characterisation in the Conflict of Laws, Harvard University Press, Cambridge, Massachusetts, 1940, pp 59–66.

9.

[1996] 1 WLR 387.

10. See Chapter 21 below. 11. See Chapter 32 below. 12. See Chapter 32 below for the issue of how the situs of intangibles like shares is determined. 13. [1996] 1 WLR 387 at 398–9. See also Through Transport Mutual Insurance Association (Eurasia) Ltd v New India Assurance Co Ltd [2005] 1 Lloyd’s Rep 67; Maher v Groupama Grand Est [2010] 1 WLR 1564; Murakami v Wiryadi (2010) 268 ALR 377 at [67]–[69]; Cox v Ergo Versicherung AG [2012] EWCA Civ 854. 14. See also John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 519, at [20]; Piatek v Piatek (2010) 245 FLR 137 at [111]. 15. See Reinsurance Australian Corporation Ltd v HIH Casualty and General Insurance Ltd (in liq) (2003) 254 ALR 29 at [296]–[321]. 16. See Macmillan Inc v Bishopsgate Trust plc (No 3) [1996] 1 WLR 387 at 391–2 per Staughton LJ. See also, notably, Falconbridge, Selected Essays on the Conflict of Laws, 2nd ed, Canada Law Book Ltd, Ontario, 1954, pp 50–3. The same approach is followed in Cheshire, North and Fawcett, Private International Law, 14th ed, Oxford University Press, Oxford, 2008, pp 41–50; Sykes and Pryles, Australian Private International Law, 3rd ed, LBC, Sydney, 1991, pp 208–9, and, subject to some variations, by Graveson, Conflict of Laws, 7th ed, Sweet & Maxwell Ltd, London, 1974, Ch 2. 17. Cheshire, North and Fawcett, 2008, p 45. 18. (2010) 268 ALR 377 19. Lord Collins (ed) Dicey, Morris & Collins on the Conflict of Laws (15th ed, 2012) at 2-037.

20. [2001] QB 825 at 840–1. 21. See C F Forsyth, ‘Characterisation Revisited: an Essay on the Theory and Practice of the English Conflict of Laws’ (1998) 114 LQR 141 at 156. 22. [2012] NSWSC 1229. 23. An example is supplied by Sweedman v Transport Accident Commission (2006) 226 CLR 326, where there was a dispute not so much as to the choice-of-law rule which required application of the law of the state with which the obligation of Mr Sweedman to indemnify the commission had its closest connection, but rather as to whether the law of New South Wales or Victoria satisfied that criterion. This was resolved by selection of the latter given that the obligation was sourced in a Victorian statute, it only arose after payments from a fund established by that statute and the amount recovered would augment that fund. These matters outweighed the connections with New South Wales which was where the relevant motor vehicle accident occurred and which was the state in which Mr Sweedman was resident. 24. [1996] 1 WLR 387. 25. See also Société Eram Ltd v Cie Internationale de Navigation [2004] 1 AC 260. 26. [2004] 1 AC 147. 27. Graveson, 1974, p 44. 28. Lederman, Can B Rev, p 22. Falconbridge, 1954, pp 59, 60, calls this process ‘tentative characterisation’. 29. For example, Re Langley’s Settlement Trusts [1962] Ch 541. 30. Marie v Garrison (1883) 13 Abb NC 210 (NY). For the description of a similar German case see Wolff, Private International Law, 2nd ed, Clarendon Press, Oxford, 1950, pp 161–2. 31. In this context, A Briggs, The Conflict of Laws, Oxford University Press, London, 2001, p 12 has observed: ‘More novel cases can be expected in the future, as domestic laws are refashioned and reshaped to meet changing social conditions. In the context of family law, foreign legislative provision for marriage between persons of the same sex, and the creation of legal regimes for the registration of a civil partnership between persons whether of opposite or the same sex, will mean that the courts have to decide whether these unions are to be characterized as marriage, or as contract, or as founding an entirely new characterization category in order to provide a framework for litigation about their international validity and effects’. 32. [1947] P 127 at 136. 33. Such a question would bear an affinity with the approach advocated by Mance LJ in Raiffeissen Zentalbank v Five Star Trading LLC [2001] QB 825, noted at 14.9 above. 34. [1921] 1 Ch 343. 35. See note 34 above, at 348. 36. (2002) 54 NSWLR 690. 37. The action for breach of promise of marriage was abolished by s 111A of the Marriage Act 1961 (Cth), as amended by the Marriage Amendment Act 1976 (Cth). 38. It is usually associated with the name of Bartin, who first put it forward in his article ‘De L’Impossibilité d’ Arriver à la Suppression Définitive des Conflits de Lois’ (1897) 24 Clunet 225 at 466, 720. The same views were shared by the German, Kahn, and the Frenchman, Niboyet. 39. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 519. 40. The relevant choice-of-law rule is described in Chapter 20 below.

Cf CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 where a concession was made that 41. the Sherman Act claim that had been brought in New Jersey could not be litigated in New South Wales. This concession was made in light of the then choice-of-law rule for tort which required ‘double actionability’ including by reference to the law of the forum. That concession would not need to be made today in light of the choice-of-law rule for tort established in Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491, which points solely to the place of the wrong, and which does not ‘graft on’ what was sometimes described as a ‘jurisdictional’ requirement for actionability according to the law of the forum. 42. Its origin is found in the article written by Despagnet to refute Bartin’s theory in (1898) Clunet 253. It is adhered to by Wolff, 1950, Ch 13, passim. 43. Put forward by Beckett in ‘ The Question of Classification (Qualification) in Private International Law’ (1934) 15 BYBIL 46. 44. [1996] 1 WLR 387 at 407. 45. (1988) 165 CLR 197 at 225. 46. Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591. The position and approach of an Australian court would be very likely to be different today in light of John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503. 47. Simonin v Mallac (1860) 2 Sw & Tr 67; Ogden v Ogden [1908] P 46. 48. [1893] AC 150. 49. (1933) 77 Sol Jo 800. 50. [1967] P 14. 51. [1948] P 100 at 115. 52. (1995) 22 MVR 115. 53. Hamilton v Merck & Co Inc (2006) 66 NSWLR 48. 54. [1900] AC 21. 55. [1945] Ch 5. 56. [1954] P 233 at 231. 57. See, for a criticism, the note by Lipstein in [1954] Cambr LJ 22. 58. The major exception is Wolff, 1950, Ch 13. 59. Cheshire, North and Fawcett, 2008, p 42. 60. See note 59 above, at pp 43–5. 61. See note 59 above, at p 45. 62. See note 59 above, at p 47. 63. See note 59 above, at p 42, though admittedly the foreign classification is not to be followed ‘blindly’, but ‘within reason’. 64. Namely, the ‘definition of legal elements’, and the ‘classification of the issue involved’: Graveson, 1974, pp 46–57. 65. See note 64 above, at p 53. 66. See note 64 above, at p 60. 67. [1921] 1 Ch 343. 68. [1900] P 211.

69. [1900] P 224. 70. (1939) 62 CLR 68. 71. Dicey, Morris & Collins, 2012, at 2-037. 72. [2002] NZLR 91 at 103. See also OJSC Oil Company v Abramovich [2008] EWHC 2613 (Comm). 73. Bland, ‘Classification Re-Classified’ (1957) 6 ICLQ 10. 74. [1947] P 127. 75. (1939) 62 CLR 68. 76. See note 73 above, at 27. 77. National Bank of Greece and Athens v Metliss [1958] AC 509; Adams v National Bank of Greece SA [1961] AC 255. 78. This is so even though a contractual right is a type of property: see Raiffeisen Zentralbank v Five Star Trading LLC [2001] QB 825 at [34]. 79. [1958] AC 509. 80. See note 79 above, at 525. 81. [1961] AC 255 at 274–5. 82. [1971] AC 356 at 392. 83. Characterisation of questions of available heads of damages as substantive or procedural is dealt with in Chapter 16 below. 84. [1968] P 675. 85. See note 84 above, at 695. 86. See note 84 above, at 699. 87. See note 86 above. 88. Ehrenzweig, p 330. 89. Dicey, Morris & Collins, 2012 at 2-038. 90. See, for example, McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 26–7 per Mason CJ, in. 91. (1917) 17 SR (NSW) 419. 92. See note 91 above, at 421. 93. Re Martin [1900] P 211 at 277; Re Annesley [1926] 1 Ch 692 at 705. 94. George Monro Ltd v American Cyanamid and Chemical Corp [1944] 1 KB 432 (place of commission of a tort); Entores Ltd v Miles Far East Corp [1955] 2 QB 327 (place of contracting). These two cases were followed in Lewis Construction Co Pty Ltd v M Tichauer SA [1966] VR 341. 95. Dicey, Morris & Collins, 2012 at 1-081; Ehrenzweig, p 334; Graveson, 1974, p 63. 96. Ehrenzweig, p 334. 97. See Cook, Logical and Legal Bases of the Conflict of Laws, Harvard University Press, Cambridge, 1942, pp 236, 237; and Fawcett, ‘Result Selection in Domicile Cases’ (1985) 5 Oxford Journal of Legal Studies 378. 98. [1930] AC 588. 99. Cf. Gulbenkian v Gulbenkian [1937] 4 All ER 618.

100. See Chapter 19 below.

[page 360]

Chapter 15

Renvoi and the Incidental Question Renvoi: A Conflict of Conflict Rules 15.1 In an ideal (but improbable) world, all legal systems would employ choice-of-law rules that were identical in content and interpretation. Uniformity of outcomes would result because the identical choice-of-law rules would lead all courts in all legal systems to apply the same dispositive rules to decide the disputes that came before them. Unfortunately, however, choice-of-law rules differ in the real world. For example, most civil law countries refer matters affecting personal status to the law of the person’s nationality, whereas common law countries generally refer such matters to the law of the domicile. Even where the choice-of-law rules are the same, their interpretation may differ. The United States and Australia agree that matters of personal status depend on the law of the domicile, but the common law interpretation of that concept is different.1 15.2 When different legal systems use different choice-of-law rules, it is obvious that they may end up applying different dispositive rules to resolve similar disputes. More fundamentally, if the forum court’s choice-of-law rules point to the law of a foreign legal system that has different choice-of-law rules, the forum court must decide whether to apply only the dispositive rules of the foreign legal system (that is, the domestic law applicable to purely local disputes) or whether it will also apply the foreign court’s choice-of-law rules, which may indicate application of a different dispositive rule. To put the same point another way, what does it mean to say that the forum court must apply ‘the law of’ a foreign legal system?2 Does it mean that the court must apply the domestic law of the legal system in question or the whole of its law, including the choice-of-law rules? If the court applies the whole of the foreign law, it may find that the choice-of-law rules of the foreign legal system would select a different law, either that of a third legal system or that of the forum court itself.

What should the forum court do if it finds that the foreign law selected by its [page 361] choice-of-law rules would refer the question to its own law or to a different law? That is the renvoi question. 15.3 The problem can be illustrated with an example. In Simmons v Simmons,3 a man whose domicile of origin was in New South Wales lived for several years in New Caledonia where he eventually died intestate. He left both movable and immovable property in New South Wales. The New South Wales Supreme Court was asked to determine by what law the deceased’s New South Wales assets ought to be distributed. The New South Wales choice-of-law rule was that the succession to movable property is governed by the law of the deceased’s last domicile. According to the law of New South Wales that domicile was in New Caledonia. Thus, the New South Wales court was referred to the law of New Caledonia and would, if no other complications had arisen, have distributed the New South Wales assets according to the law of New Caledonia applicable to intestate succession. But evidence was given that the New Caledonian court, if its jurisdiction had been invoked, would not have applied the law of New Caledonia. Under the law of New Caledonia a foreigner, who did not obtain the necessary permit of the authorities, could not acquire a domicile in that territory. Since the deceased had not obtained such a permit, a New Caledonian court would under its choice-oflaw rules consider him to be still subject to the law of his nationality. His nationality being British, it was assumed that by the law of his nationality was meant the law of his last domicile within the British Empire, which was New South Wales. Thus, it appeared that a New Caledonian court would have distributed his movables in accordance with the law of New South Wales relating to intestate succession. This, of course, created an absurd situation where the New South Wales court was referred by its choice-of-law rules to the law of New Caledonia, only to be informed that the choice-of-law rules of New Caledonia referred the matter back to the law of New South Wales. Of course, foreign law does not always refer the matter back to the forum. If the deceased in Simmons v Simmons had been an Italian citizen, the New Caledonian court would have referred the matter on to the law of Italy. The first situation, which is most common, is usually described

as a ‘remission’, while the latter is usually called a ‘transmission’. The French word ‘renvoi’ is used to describe both situations. 15.4 How can the problem of renvoi be solved? There seem to be only three possible solutions, each of which is flawed in some way: 1.

The simplest way is to ignore the problem of renvoi altogether and to hold that the reference in the choice-of-law rule of the forum to the law of a foreign country is a reference to the domestic law of that coun try. As Russell J said in Re Annesley:4 ‘In other words, when we say that French law applies to the administration of the personal estate of an Englishman who dies domiciled in France, we mean that French municipal law which France applies in the case of Frenchmen’. This method is referred to as ‘the single reference’ or ‘rejecting [page 362] the renvoi’, and it is followed by a number of foreign countries,5 including most jurisdictions in the United States.6 This solution has the advantage of simplicity. It can be argued that since Australian choice-of-law rules serve Australian policy objectives, nothing is to be gained by taking foreign choice-of-law rules into account. But this, of course, begs the question, to what extent is the achievement of a uniform result a policy objective of Australian courts? If it is, it seems rather strange for a New South Wales court to distribute the New South Wales movables of a person who died domiciled in New Caledonia according to the law of New Caledonia, knowing that a New Caledonian court would distribute the movables situated in New Caledonia according to the law of New South Wales.

2.

The second solution would be to take account of the foreign choice-of-law rules, but on the basis that the reference by the foreign system back to the law of the forum, or on to the law of a third country, is a reference to the domestic law of the forum, or of the third country respectively. Or, to put it in another way, when the forum discovers that the conflict rules of the foreign law to which it was referred in the first instance by its own choiceof-law rule refer the matter back to the law of the forum, it simply cuts the Gordian knot by refrain ing from making any further references and simply

applying its own domestic law. To this solution, the term ‘single renvoi’ is usually applied. It is followed by most civil law systems.7 This solution produces a more rational result. If the law of New South Wales refers the matter to New Caledonia and a New Caledonian court would have applied its own law, uniformity is achieved. If New Caledonian law refers the matter on to the law of Italy, both New South Wales and New Caledonian courts would concur in applying Italian law. If the law of New Caledonia refers the matter back to the law of New South Wales and vice versa, at least each court ends up by applying its own law to such assets as are under its control. 3.

The third solution and the only method which, at least in theory, ensures uniformity of result is for the court of the forum to approximate its decision as closely as possible to the decision which would have been reached in the circumstances of the particular case by a court of the foreign system referred to by the choice-of-law rules of the forum. The forum puts forward no particular solution of its own but simply adopts whatever solution the foreign court uses having regard to its choice-of-law rules and its answer to the [page 363] problem of renvoi. This method has been described as ‘double’ or ‘total’ renvoi, or perhaps more accurately as ‘the foreign court theory’. Thus, when the choice-of-law rules of New South Wales refer a matter to the law of New Caledonia, the New South Wales judge must enquire what a New Caledonian judge would have done had he or she assumed jurisdiction in the instant case. A New Caledonian judge might have referred the matter to the domestic law of New South Wales or that of a third country. Or a New Caledonian judge might have referred the matter to the law of New South Wales, including its choice-of-law rules. On discovering that New South Wales referred the matter back to New Caledonia, the New Caledonian judge might ‘accept the renvoi’ and apply the domestic law of New Caledonia. Wherever the New Caledonian judge would have led, there the New South Wales judge follows. Ideally, therefore, it should not matter whether the jurisdiction of New South Wales or of New Caledonia is invoked. In each case the same dis positive rule will be applied, because

New South Wales adopts the entire conflict solution method of New Caledonia. 15.5 In Neilson v Overseas Projects Corporation of Victoria Ltd,8 the High Court of Australia rejected the first alternative, that of refusing or rejecting the renvoi, by a majority of six to one (McHugh J dissenting). Unfortunately, only one member of the majority, Callinan J, clearly chose between the second and third alternatives. The remaining five members of the majority acted in a manner consistent with the third alternative, ‘double renvoi’, but four of them expressly refused to say whether that approach should be taken in all cases. Thus, Neilson confirmed that renvoi applies, at least in torts cases, but gave no clear answer about which solution should be used. Thus, it is in Neilson that one must search for the modern Australian approach to renvoi.

Neilson and the whole of the foreign law 15.6 Until Neilson v Overseas Projects Corporation of Victoria Ltd,9 renvoi was often derided as a theoretical problem that arose only in hypothetical problems imagined by legal academics. Actual decided cases were few and far between in any common law country. The decision of the High Court of Australia in Neilson was thus a very rare event because it contained an extended consideration of renvoi by a national court of final appeal in a case containing a real renvoi question. 15.7 The plaintiff in Neilson was severely injured when she fell down a flight of stairs in an apartment in Wuhan, China, that had been provided to her husband by the defendant. She was an Australian citizen domiciled and ordinarily resident in Western Australia. Upon her return to Western Australia, she sued the defendant in tort in the Supreme Court of Western Australia.10 The defendant relied on several defences that it said were provided by Chinese law. Applying the choice-of-law test stated by the High Court of Australia in Regie Nationale des Usines Renault [page 364] SA v Zhang,11 McKechnie J held that the plaintiff’s tort claim was governed by the law of the place of the tort, which he held to be Chinese law.12 McKechnie J rejected the defendant’s reliance on Chinese defences, holding that Chinese law

gave him ‘the right to apply the law of Australia’ because both plaintiff and defendant were Australian.13 This was, in effect, adoption of a single renvoi approach (the second alternative described above at 15.4): considering the Chinese choice-of-law rule and then applying Australian domestic law. On appeal, the Full Court of the Supreme Court of Western Australia concluded that there should be no renvoi in international tort cases.14 The High Court of Australia granted the plaintiff special leave to appeal and allowed her appeal. 15.8 The first question for the High Court of Australia to decide was whether the Zhang choice-of-law rule, which selects the law of the place of the wrong (lex loci delicti), requires the court to look at the whole of the foreign law or only foreign domestic law. By a majority of six to one, the court held that it was necessary to consider the whole of Chinese law, including the Chinese choice-oflaw rules.15 To do otherwise would risk the result that an Australian court might apply Chinese law when a Chinese court considering the same case would not apply its own law because the Chinese choice-of-law rules would direct it to the law of another legal system. Gleeson CJ said it was ‘difficult to see’ why Australia’s choice-of-law rule should seek such a result.16 Heydon J was less restrained, saying such a result would be ‘absurd’.17 Applying the whole of the foreign law obviated the need to distinguish between the domestic law of the foreign jurisdiction and its conflict of laws rules, a distinction that Gummow and Hayne JJ said may not be easy to draw.18 There would also be reduced incentive for forum shopping if the Australian court were to decide the case exactly as a Chinese court would (or at least try to do so), applying all relevant Chinese laws.19 McHugh J dissented on this issue, saying that it was ‘logically impossible’ to apply the whole of the foreign law.20 If the Australian court really were to apply the whole of the foreign law, it should also apply the renvoi rules of the foreign law, which [page 365] are no less a part of that law than any other part of it.21 That would be double renvoi, which would lead to infinite regression if the foreign law were also to respond to renvoi by applying the whole of the foreign law. According to McHugh J, the only way out of that infinite regression would be by ‘sacrificing

logic to concerns of pragmatism’ and applying another solution.22 Whatever that other solution might be, it must necessarily involve not applying the whole of the foreign law and not deciding the case in the way that the foreign court would because the Australian court would be forced to apply the foreign law minus its inconvenient rule about renvoi (which would be single renvoi) and possibly minus the whole of its conflict of laws rules (which would be rejecting the renvoi).23 McHugh J thought it better to reject the doctrine of renvoi altogether by refusing to consider any of the conflict of laws rules of the foreign law. 15.9 Of the six justices in favour of considering the whole of the foreign law, only one, Callinan J, made a clear and unequivocal choice between single and double renvoi. Callinan J chose single renvoi, accepting the reference by the Chinese choice-of-law rules to Australian law and thus applying Australian domestic law.24 The other five justices (Gleeson CJ, Gummow, Hayne, Kirby and Heydon JJ) approached the facts of this case in a manner consistent with double renvoi, which called for consideration of the Chinese renvoi rule as well as the other Chinese choice-of-law rules.25 All five confined themselves to the facts of the case, asking only whether a Chinese court would look to Australian conflicts principles.26 Four of the five (Gleeson CJ, Gummow, Hayne and Heydon JJ) concluded that if a Chinese court were to apply Australian law, it would apply Australian domestic law and not Australian choice-of-law principles.27 The fifth member of this group, Kirby J, disagreed, saying that there was insufficient evidence to come to any conclusion about whether China had a renvoi rule.28 In other words, Gleeson CJ, Gummow, Hayne and Heydon JJ concluded that Chinese law has no renvoi rule or would reject renvoi. As a result, the infinite regression problem created by the double renvoi approach did not arise on these facts, as it only occurs if both the forum law and the foreign law use double renvoi. Gummow, Hayne and Heydon JJ all said that it was not necessary to say anything about what should be done if double renvoi does lead to infinite regression; their task was only to decide the case before them, not to provide a complete theory of how [page 366] to deal with renvoi.29 Kirby J agreed with this proposition;30 Gleeson CJ said nothing about it. Thus, none of the five justices who used double renvoi on the

facts of this case was prepared to commit to using it in all cases.

In what kinds of case does renvoi apply? 15.10 Strictly speaking, Neilson decided only that some form of renvoi is to be applied in tort cases, where the choice-of-law rule selects the law of the place of the wrong (the lex loci delicti). Prior to Neilson, the double renvoi or ‘foreign court’ theory had also been applied in the following situations: (a) formal validity of wills;31 (b) intrinsic validity of wills of movables;32 (c) intrinsic validity of wills of immovables;33 (d) intestate succession to movables,34 and it seems, immovables; and (e) recognition of foreign legitimations at common law.35 15.11 It is generally thought that there is no reason to apply renvoi in contract cases. For example, the Rome I Regulation (EC) No 593/2008, which operates within the European Union, specifically excludes the operation of renvoi in cases to which the Regulation applies.36 The choice-of-law rule in contract cases places strong and understandable emphasis on the parties’ own choice of governing law, where such a choice is discernible or can be inferred.37 There is strong reason for thinking that an express reference in a contract to the ‘law of country A’ should mean that ‘there is introduced by such reference, the whole of the general law in force in country A with respect to … local contracts’.38 When choosing the law to govern their contract, the parties presumably did not contemplate application of the conflict of laws rules of the chosen law, which might lead to application of a law different from the one that they chose.39 It seems even less likely that the parties might contemplate application of the renvoi rule of the chosen law area because, as Fawcett and Carruthers put it: ‘[N]o sane businessman or his lawyers would choose the application of renvoi’.40 Indeed, more sophisticated choice-of-law clauses sometimes specifically provide that the chosen law is to govern the contract ‘excluding its conflict of laws rules’. [page 367]

15.12 Nevertheless, Lord Wright apparently envisaged application of renvoi in contract in Vita Food Inc v Unus Shipping Co,41 as did Walsh J speaking for the New South Wales Full Court in Kay’s Leasing Corp v Fletcher.42 However, in neither case was it necessary to decide the issue. More recently, in O’Driscoll v J Ray McDermott,43 both parties accepted that Neilson requires consideration of the choice-of-law rules of the lex causae even in contract cases, at least where the governing law of the contract is selected on an objective basis by the court, rather than expressly by the parties themselves.44 Considering the choice-of-law rules of the lex causae had no practical effect in O’Driscoll because the ‘closest and most real connection’ choice-of-law rule indicated that Singapore law was the governing law of the contract, and the evidence showed that Singapore’s contract choice-of-law rule is the same as the Western Australian rule.45 15.13 O’Driscoll shows that the question of whether to apply the choice-of-law rules of the governing law is significant only when those rules are in some way different from those of the Australian forum. If the parties have chosen a governing law that has different choice-of-law rules from the Australian ones, the forum court in Australia is then forced to decide what to make of that choice. For example, if an Australian party and a Japanese party were to choose New York law as the governing law of a contract to be performed in Japan, should they be taken to know that a New York court would not enforce a choice-of-law clause if the transaction bears no reasonable relation to the state of New York?46 If an Australian court were to apply New York’s domestic law to a dispute arising out of that contract, it would be doing the very thing that prompted the Neilson majority to call for consideration of the whole of the foreign law, namely applying New York law when a court in New York would not do so. That should not matter in this context, though. It is the law of the forum (the lex fori ) that gives effect to the parties’ choice of governing law, not the chosen law itself.47 The parties did not choose to have disputes between them decided in the way that a New York court would decide them. There is a difference between choosing to have the contract governed by the rules of New York law and choosing to have a dispute arising out of the contract decided as it would be by a judge hypothetically hearing the case in New York.48 Unless the parties have clearly [page 368] chosen to have their disputes decided as they would be in New York (albeit not

necessarily by a New York court),49 their choice of New York law as the governing law of their contract must be a choice of the dispositive rules of New York’s domestic law, a choice that is given binding force by the law of the forum. 15.14 The situation may be different when a choice of governing law by the parties cannot be identified or inferred, so that the lex causae must be selected for the parties by the forum court using its choice-of-law rules. In such circumstances, the court does not select the governing law that it thinks the parties would have chosen if they had turned their minds to the question, but rather it selects the system of law with which the transaction has the closest and most real connection.50 Because the default rule in contract depends on objective connection rather than the will of the parties, the reasons given in Neilson for applying the whole of the foreign law seem more compelling. As Gummow and Hayne JJ observed in Neilson:51 Once Australian choice-of-law rules direct attention to the law of a foreign jurisdiction, basic considerations of justice require that, as far as possible, the rights and obligations of the parties should be the same whether the dispute is litigated in the courts of that foreign jurisdiction or is determined in the Australian forum … [A]dopting a rule that seeks to provide identical outcomes is neither more nor less than an inevitable consequence of adopting a choice-of-law rule to which there is no exception. To apply that choice-of-law rule in a way that would permit a party to gain some advantage by litigating in the courts of the forum, rather than the courts of the jurisdiction whose law provides the governing law, would constitute a considerable qualification to that choice-of-law rule. A party could gain an advantage by litigating in the courts of the forum rather than the courts of the foreign jurisdiction only if the forum were to choose to apply only some of the law of that foreign jurisdiction. And to do that would make a significant inroad upon what on its face is stated to be an unqualified choice of the law which is to govern the rights and obligations of the parties …

Although this was said of the tort lex loci delicti choice-of-law rule, it applies with equal force to the default rule in contract, which is also a choice-of-law rule to which there is no exception. If the choice-of-law rules of the legal system with which the transaction has the closest and most real connection would indicate that the contract is governed by some other law, then a party could seek an advantage by suing in the Australian forum rather than in the courts of the other jurisdiction. For example, imagine an action brought in an Australian court on a contract made in Singapore but which the Australian court would conclude was governed by the law of Alabama, that being the legal system with which the contract had the closest and most real connection. Alabama is one of 11 United State states that still adheres to [page 369]

the traditional lex loci contractus choice-of-law rule in contracts cases,52 so a court in Alabama would apply Singapore law to the contract dispute in question.53 There seems to be no more reason for an Australian court to apply Alabama law in such a case than there was to apply Chinese law in Neilson. 15.15 In Islamic Republic of Iran v Berend,54 Eady J of the English High Court refused to apply the doctrine of renvoi to a question of title to movable property. The claimant had brought an action in England to recover a fragment of an Achaemenid limestone relief dating from the first half of the fifth century BC, which had been excavated from the ruins of the ancient city of Persepolis, taken to and sold in New York, delivered to the defendant in Paris, then taken to England for auction at Christie’s in London. The defendant resisted the claim on the ground that she had acquired title to the fragment in good faith under French domestic law when it was delivered to her in Paris. The claimant argued that because the fragment was artistic or cultural property, a French judge would make an exception to the usual rule that title to movables is to be determined by the lex situs and would apply the law of the state of origin of the fragment, Iranian law. Eady J resisted the invitation to apply Iranian law, holding, as a matter of English law, that there was no good reason to apply the doctrine of renvoi and thus that title to the fragment should be determined in accordance with French domestic law. Eady J’s conclusion in Berend was based in part on observations made by Millett J in Macmillan Inc v Bishopsgate Investment Trust plc (No 3),55 to the effect that there is no scope for the doctrine of renvoi in determining a question of priority between competing claims to shares. Questions of priority between competing claims to property, whether tangible or intangible, involve striking a balance, based on considerations of domestic legal policy, between security of title and security of a purchase. A decision that that balance should be struck by application of foreign law is based on a policy decision at a higher level not to apply the English domestic policy for striking the relevant balance because it is not relevant in the circumstances of the case. The higher-level policy decision embodied in the choice-of-law rule is that the lower-level policy adopted by the foreign law should be applied in place of the English domestic policy. That being so, Millett J saw no reason to apply the doctrine of renvoi by asking whether a foreign court would apply its own law in the circumstances. Eady J in Berend found the same reasoning compelling. In The WD Fairway,56 another case about title to movables, Tomlinson J of the English High Court was reluctant to abandon renvoi altogether, preferring a

case-by-case approach. Citing an article by Professor Adrian Briggs and paragraphs [page 370] of Dicey, Morris & Collins on The Conflict of Laws by the same author,57 Tomlinson J said that it may be unsatisfactory to abandon the doctrine of renvoi in the abstract, without reference to whatever might be the relevant lex situs. It would be better, Tomlinson J suggested, to consider whether the lex situs rule is more faithfully given effect by referring to the domestic law of the situs or its private international law.58 However, in a later stage of the same case,59 Tomlinson J decided not to apply renvoi, having concluded that there was no principle in the private international law of the lex situs (Thai law) that would better serve the object of the English lex situs conflicts rule than application of Thai domestic law.60 In Blue Sky One Ltd v Mahan Air,61 Beatson J of the English High Court preferred to reject renvoi altogether in cases of title to movables, declining to adopt Tomlinson J’s suggested case-by-case approach, which he said could lead to ‘a Tennysonian wilderness of single instances’.62 15.16 Even in the field of succession, where the doctrine of renvoi is most strongly entrenched, it applies only to succession by virtue of the general rules of inheritance and not to the discretionary power vested in courts to vary inheritance rights by testator’s family maintenance legislation.63 In Re Ross,64 Luxmoore J applied the total renvoi or ‘foreign court’ theory in a case where a British subject with an English domicile of origin died domiciled in Italy, leaving movable and immovable property in Italy and movable property in England. She had disposed of these assets by will in such a manner as to disinherit her son. Under Italian law the son was entitled to a fixed share in his mother’s estate. English law referred the matter to Italian law as the law of the last domicile of the deceased in the case of the movables and as the law of the place of situation in the case of the immovables, but Italian law referred all matters relating to succession in respect of both kinds of property to the law of the nationality of the deceased. After an exhaustive discussion of the authorities, Luxmoore J held that he had to consider the whole law of Italy, including its choice-of-law rules. He inquired whether Italian courts applied any type of renvoi and upon being advised that Italian law rejected renvoi, and would make reference to the domestic law of the nationality, he followed their example and

applied the domestic English law thus defeating the son’s claim. [page 371] In contrast, in Re Paulin,65 Sholl J, sitting in the Victorian Supreme Court, refused to extend the principle in Re Ross to cover a testator’s family maintenance application in respect of New South Wales land, even if the law of New South Wales were to make a reference to the law of Victoria as the law of the last domicile of the deceased. 15.17 The principle in Armitage v Attorney-General,66 namely, that English courts will recognise as effective a divorce or annulment which is recognised by the law of the domicile of the parties, is sometimes seen as an example of the application of renvoi.67 This, of course, is true so far as it takes account of the choice-of-law rules of the lex domicilii. However, it originated independently of the line of cases commencing with Collier v Rivaz68 and it would be regrettable if the analogy between the two situations were pursued to the extent of applying the complexities of the foreign court theory to what is a relatively simple device to avoid limping marriages. The same can be said of the possible reference that the law of the place of celebration can make to the law of nationality or domicile as an alternative law by which the formal validity of a marriage may be tested.69 15.18 Article V(1)(a) of the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention)70 provides that a country party to the Convention may refuse recognition and enforcement of an arbitral award made in another country that is party to the Convention if the arbitration agreement is not valid: (1) under the law to which the parties have subjected it; or (2) under the law of the country where the award was made. Under French law, the existence, validity and effectiveness of an arbitration agreement in an international arbitration need not be assessed on the basis of national law, but may be determined by transnational law.71 In Dallah Real Estate & Tourism Holding Co v Pakistan,72 the United Kingdom Supreme Court said that when an English court is called upon to decide whether an award made in France is valid under ‘the law of the country where it is made’, it must therefore refer to transnational law, not French domestic law. Lord Collins of Mapesbury JSC pointed out that this was not an example of renvoi. The English court did not apply the French conflict of laws rules to refer the issue on to another country’s law. What French law does is draw a distinction between

domestic arbitrations in France and international arbitrations in France. For an [page 372] English court to do the same when considering Art V(1)(a) of the Convention is not the application of renvoi.73

Critique of the double renvoi or ‘foreign court’ theory 15.19 Although five members of the Neilson majority acted in a manner consistent with double renvoi or the ‘foreign court’ theory, four of them expressly refused to say whether that approach should be taken in all cases.74 It thus remains an open question whether double renvoi should be applied in general. Several serious objections can be raised against the double renvoi approach. 15.20 The first and most profound objection is that double renvoi only works when the foreign court has a solution to the renvoi problem, including in cases like Neilson, where the foreign court’s solution is to have no renvoi rule at all. If the foreign court also adopts the foreign court theory, there is no way out of the circulus inextricabilis.75 It is often said that this is unlikely to occur because the only other legal systems that use the double renvoi approach are in common law countries that tend to have much the same choice-of-law rules and connecting factors as Australia does, with the result that a conflict of conflict rules is unlikely to occur. However, in Neilson, Gummow and Hayne JJ provided some telling examples of ways in which a conflict of conflict rules might arise:76 The same kinds of question about choice-of-law may be presented not only where, as the appellant contended to be the case here, the law of the forum and the law of the place choose different connecting factors to determine the applicable law. They may be presented in at least three other kinds of case. Thus, they may be presented where the law of the forum and the law of the place use the same connecting factor but apply it differently. They may be presented where the two jurisdictions would characterise the problem differently. They may be presented if the law of the place applies no single connecting factor but seeks to identify the so-called proper law of the tort.

As McHugh J pointed out in Neilson, the only way out of the infinite regression is to sacrifice logic to pragmatism and apply a solution other than double renvoi.77 That leaves the rather disreputable position that double renvoi is acceptable so long as it is harmless: the foreign renvoi rule should be considered and applied if (as in Neilson) the foreign renvoi rule is not also a double renvoi

rule; if the foreign renvoi rule is a double renvoi rule, then it must be ignored to avoid the infinite regression. Under such a system, the forum court would have to look at the content of the foreign renvoi rule in order to know whether to apply it or ignore it. That would seem to violate the usual rule that an Australian court can only refuse to apply the foreign law indicated by its choice-of-law rules in a very limited class of cases: if the foreign law is a revenue law, a penal law or an expropriatory law in gross violation of human [page 373] rights or purporting to have an extra-territorial effect, or if application of the foreign law would in some way offend against Australian public policy.78 15.21 Another, more practical, objection is that the theory is based upon a myth: namely, that it is possible to determine the case in the same manner as a foreign court would have decided it. This is virtually impossible for three reasons. First, many foreign legal systems have not yet settled their attitude to renvoi. Most foreign codes make no mention of renvoi and have left it to the courts to work it out. Other codes that do make reference to it use ambiguous language. Nor have English courts always appreciated the fact that civil law systems do not have a strict adherence to precedent. Even if there is a decision on the point by the French Cour de Cassation, there is no guarantee that a district court in Orleans would follow it. In consequence common law judges purporting to apply the foreign court theory very often had to make more or less arbitrary decisions as to what the foreign court would have decided. Thus, in Simmons v Simmons79 and Re Annesley80 the courts came to diametrically opposed conclusions about French law with the result that in the former case the domestic law of New South Wales was applied and in the latter case that of France. Even in Re Ross,81 where there was little doubt as to the Italian rejection of renvoi,82 it was uncertain whether an Italian court would follow or reject an English decision that applied the domestic law of Italy. The reductio ad absurdum was probably reached in Re Duke of Wellington83 where Wynn-Parry J had to pretend he was the Supreme Court of Spain in order to resolve a conflict on renvoi between two inferior Spanish courts. 15.22 Second, many of the conflicts in conflictual rules have arisen because the

law of the domicile referred the matter to the law of the nationality of the de cuius. If the nationality is that of a country, such as New Zealand, with a unitary legal system, there is no problem. But if the nationality is British, Australian or that of the United States, a further problem arises. A reference to the law of Australia as the law governing the succession to a deceased estate is meaningless since there is no such law on that topic; the relevant laws are those of the several states and territories. This problem has been glossed over from Collier v Rivaz84 onwards. In most cases, it simply has been assumed that a reference to the national law of a British subject meant the law of England. The first case in which the problem was faced was Re Johnson,85 where Farwell J held that there was a rudimentary ‘law of the British nationality’ which in turn referred the matter on to the law of the deceased’s domicile of origin. This principle was followed in a number of cases and found its most striking, and most absurd, application in Re O’Keefe (decd).86 [page 374] In that case the deceased was born in India, her father being in military service there. Her father’s domicile of origin was in then undivided Ireland; he was born in the southern part of that country. The deceased spent the last 40 years of her life in Italy where she died. The court found that she died domiciled in Italy and prima facie her estate should be distributed according to the law of that country. But Italian law referred the matter to the law of her nationality, which was British. Applying the principle in Re Johnson, the court took this to refer to her domicile of origin, which was Irish. Since, at the time of her death ‘Ireland’ had ceased to exist as one law area, the court placed her domicile of origin by reason of her father’s place of birth in Eire. Consequently, her estate was distributed in accordance with the law of Eire, a country that the deceased had never known. 15.23 Similar problems arise whenever the lex causae selected by the Australian rule employs nationality as part of its choice-of-law rule. In Neilson itself, the Chinese choice-of-law rule provided that if both parties were ‘nationals of the same country’, the law of that country might be applied. Because both plaintiff and defendant were Australian, this was taken to mean that Chinese law would refer the question to Australian law. However, there is no uniform Australian law applicable to tortious liability, as several members of the Neilson court noted.87 The court seemed unconcerned by this issue and

pragmatically applied Western Australian law, the law of the forum, noting that the parties had not taken issue on this point.88 There was no material difference between Victorian law (the defendant’s principal place of business) and Western Australian law (where the plaintiff was resident and domiciled) in Neilson itself,89 but the same might not be true in future international torts cases, because the differences between the tort laws of the states and territories have multiplied since the passage of the civil liability legislation in the first few years of the twenty-first century.90 15.24 On the basis of the foreign court theory, the solution of the nationality problem should be a question for the foreign law to resolve. But only in a very few cases have the experts in the foreign law been able to advise the court as to what solution their courts would have adopted. In Re O’Keefe they frankly admitted their ignorance. In other cases, such as Re Askew91 they simply regarded ‘British’ as synonymous with ‘English’. The result has been that an issue which a foreign court would have regarded as an important part of the interpretation of its own choice-of-law rules, has been dealt with per incuriam.92 [page 375] 15.25 A third problem with the application of the foreign court theory stems from the assumption that the foreign court would have assumed jurisdiction in the matter at all. It was assumed by all of the judges at all levels in Neilson that a Chinese court would have had, or exercised, jurisdiction over a case brought by an Australian plaintiff against an Australian defendant in relation to a harm suffered in China. However, an examination of the Chinese civil procedure rules reveals that although a Chinese court would have had jurisdiction to hear the Neilson case, it might well have declined to exercise that jurisdiction.93 Consideration of the renvoi rules of the lex causae is meaningless if the courts of the lex causae would have no jurisdiction to hear the case. For example, if someone dies domiciled in Italy leaving movable property in New South Wales, the relevant Australian conflicts rule would instruct the New South Wales court to distribute the movables in the same way as an Italian court would have distributed them. But would an Italian court have assumed jurisdiction over movables situated abroad? In all the foreign court theory cases the forum court has simply assumed that the foreign court would have assumed jurisdiction in the same factual situation. But this assumption may well be false if all the assets

in question are situated outside the jurisdiction of the foreign court.94 Similarly, if the foreign court has jurisdiction under its own rules but would decline to exercise that jurisdiction, the reasons for applying any of the foreign law, far less its renvoi rule, seem much diminished. By declining to hear the case, the foreign court in effect states that any interest it might have in applying its own law is outweighed by other factors, including the convenience of the parties and (in some jurisdictions, at least) convenience to itself.95 It would seem unduly stubborn for the Australian forum court to insist on applying the foreign law in such a case, quite as perverse (or ‘absurd’, to quote Heydon J in Neilson)96 as it would be to insist on applying the foreign domestic law when the foreign court’s choice-of-law rule points back to Australian law. If the foreign court would not apply its own law, there seems to be little reason why an Australian court should do so, whether the foreign court’s refusal stems from its choice-of-law rules or from its decision to decline jurisdiction. [page 376] 15.26 The forum court’s first step should be to determine whether the foreign court would have or retain jurisdiction over the dispute. If not, consideration of the foreign choice-of-law rules, including the renvoi rule, is moot. If, for whatever reason, the foreign court would not have or retain jurisdiction according to its own rules, the forum court should apply its own law, the lex fori, there being no other viable alternative. The plaintiff can hardly be accused of forum-shopping for juridical advantage under Australian law if the other ‘shop’, the foreign court, would not be open to hear the dispute. 15.27 The usual justification given for the application of the foreign court theory is that it ensures uniformity of decision and defeats forum-shopping.97 The plaintiff can only legitimately be suspected of forum-shopping if a preliminary jurisdictional inquiry indicates that the foreign court would have or retain jurisdiction. Some form of renvoi rule is necessary in such a case to ensure that the forum-shopping plaintiff is met by the same outcome in Australia as he or she would receive in the foreign forum. The real difficulty with renvoi lies in the infinite regression that occurs under the double renvoi approach if the other jurisdiction also uses double renvoi. The Neilson majority avoided that problem by concluding that China has no renvoi rule, and unhelpfully declined to say anything about how to solve the problem of

infinite regression, saying that they had no obligation to provide a complete theory of renvoi.98 As McHugh J pointed out, the only possible way out of the problem of infinite regression involves abandoning, to a greater or lesser extent, the Neilson majority’s commitment to look at the whole of the foreign law. The single renvoi approach involves a lesser abandonment of that commitment while also avoiding the problem of infinite regression. Admittedly, applying the foreign choice-of-law rules but not the foreign renvoi rule involves sacrificing logical consistency to expediency of outcome. Single renvoi does, however, have the advantage of requiring the forum court at least to consider whether the foreign court would apply its own domestic law to a case with foreign elements. Unfortunately, only Callinan J in Neilson was clearly in favour of single renvoi.

The Incidental Question 15.28 The ‘incidental’ or ‘preliminary’ question is a problem that has agitated law professors for years though judges have remained blissfully unaware of its existence. Yet it does exist. 15.29 An example is seen in the High Court case of Haque v Haque (No 1).99 In that case Abdul, an Indian domiciliary who was a Muslim by religion, married Azra, also an Indian Muslim, in Western Australia. The marriage was celebrated in Muslim form and was void under Western Australian law. Abdul died, leaving property in [page 377] Western Australia, being still domiciled in India. Two children were born to Abdul and Azra in Western Australia. The question arose whether they were entitled to the fixed share in their father’s estate which Muslim law awards to legitimate issue. The major question, that of the succession rights to the movables of the deceased, was governed by the law of India applicable to Muslims. But before that was to be answered there was a subsidiary or incidental problem. The claimants in order to be entitled to their share had to be legitimate. By what conflict rules was that to be decided? By the rules of India as part of the main question of succession, in which case they were the legitimate issue of a Muslim marriage, or by the rules of Western Australia as an issue separate from the

major question? 15.30 This then is the ‘incidental question’. A court considering a major question such as succession to movables may have to determine a preliminary or incidental question for which there exists a separate choice-of-law rule under the law of the forum. The problem is, of course, not limited to succession. Thus, a question may arise in a suit for workers’ compensation or compensation to relatives of whether the claimant is the lawful widow of the deceased100 or whether the person who engaged the worker claiming benefits was the agent of the employer from whom benefits are sought.101 Or the question may arise in a matrimonial cause of whether the previous marriage of one of the parties has been effectively dissolved. As stated earlier, most judges have not realised there is a problem and the High Court is no exception. Without adverting to the problem in Haque, it simply applied the law governing the succession, that is, the law applicable to Muslims in India. As the judgment states:102 ‘Muslim law recognises the marriage celebrated in Fremantle … as a union the issue of which would be legitimate whatever the law of Western Australia might say’.103 Thus, the High Court, albeit per incuriam, has sided with those who argue that the incidental question should be determined according to the law, including the conflicts law, which governs the main issue.104 15.31 A similar approach was adopted in the Canadian case of Schwebel v Ungar.105 In that case, a woman whose domicile at the time was Israel married in Ontario. She had been previously married when she was domiciled in Hungary. While the spouses were still domiciled in Hungary they obtained a rabbinical divorce in Italy, which [page 378] was recognised by the law of Israel, but not by the law of Hungary. The question that the Ontario Court of Appeal had to resolve was whether she was under Ontario law still married to her first husband at the time of the second ceremony. Her capacity to marry was governed by the law of Israel as her antenuptial domicile. By that law she was free to remarry. But this still left an apparently undissolved marriage. Should the validity of her earlier divorce be treated as subsidiary to her capacity to marry and thus governed by the law of Israel? Or

should the court apply its own rule as to the recognition of foreign divorces which would lead to the application of Hungarian law? The court chose the former. As Mackay JA explained on behalf of the court:106 … our enquiry must be directed not to the effect to be given under Ontario law to the divorce proceedings in Italy as at the time of the divorce, but to the effect to be given to those proceedings by the law of the country in which she was domiciled at the time of her marriage to the plaintiff in 1957, namely Israel. This reasoning was expressly approved by the Supreme Court of Canada on appeal.107

15.32 In Lawrence v Lawrence,108 the English Court of Appeal had to consider a situation where a woman, while domiciled in Brazil, had obtained a divorce in Nevada. She married her second husband in Nevada and went to live with him in England. The Nevada divorce was entitled to recognition in England, but would not be accepted in Brazil. Assuming that her capacity to remarry was governed by the law of her antenuptial domicile,109 the law of Brazil denied her that capacity. The majority of the Court of Appeal solved the problem by treating the question of capacity to remarry as incidental to the question of recognition of the divorce.110 Purchas LJ by a more convoluted reasoning achieved the same result.111 15.33 Yet, it would seem timely to warn against an unthinking application of the law governing the main issue. There is little objection to the application of the foreign choice-of-law rules to the incidental question in Haque v Haque (No 1),112 if one accepts the principle that the succession to movables should be determined in as close conformity as possible to the law that the court of the domicile would have applied. It is less obvious in the cases dealing with capacity to remarry. If the wife in Lawrence v Lawrence113 had returned immediately after her remarriage in Nevada to Brazil (instead of waiting until her second marriage had broken down), would an English court have come to the same result? If the first husband in Schwebel v Ungar114 had been domiciled in Ontario at the time of his remarriage, would this [page 379] have resulted in him being denied the capacity to remarry which was allowed his former wife? 15.34 It is not proper to try to lay down a general rule. As in the case of renvoi,

it is a matter of interpretation of the policy of the forum. In some instances it may require application of the ‘whole law’ governing the main issue. In other instances it may require the application of the separate conflicts rules of the forum, or even the creation of new conflicts rules.115 ____________________ 1.

The Domicile Act 1982 (Cth) and similar legislation in the states and territories have reduced the differences: see Chapter 13.

2.

See, for example, B Welling and R Hoffman, ‘ “ The Law of” in Choice-of-law Rules: “Renvoi ” Comme Nostalgie de la Boue’ (1985) 23 U West Ont L Rev 79.

3.

(1917) 17 SR (NSW) 419.

4.

[1926] Ch 692 at 709.

5.

Italy used to be one of those countries, but in 1995, it enacted a new private international law statute that requires Italian courts to accept the renvoi. See Art 13 of Act No 218 of 31 May 1995, an English translation of which appears in (1996) 35 ILM 760. See also A Bonomi, ‘ The Italian Statute on Private International Law’ (1999) 27 Int’l J of Leg Info 247 at 255–6.

6.

The Restatement (Second) of Conflict of Laws § 8(1) (1971) states that, subject to two limited exceptions, ‘[w]hen directed by its own choice-of-law rule to apply “the law” of another state, the forum applies the local law of the other state …’.

7.

This was the solution adopted by Italy in 1995: see n 5 above. For another example, see the decision of the French Cour de Cassation in X v Y [2011] I L Pr 4, in a case involving succession to (among other things) movable and immovable property in Spain after the death of a French national domiciled in Spain. The French conflicts rules applied Spanish law as the lex situs. Spanish law would have applied French law as the national law of the deceased. The French court accepted the renvoi and applied its own domestic rules of succession.

8.

(2005) 223 CLR 331; 221 ALR 213.

9.

(2005) 223 CLR 331; 221 ALR 213.

10. The plaintiff also claimed for breach of contract. The breach of contract claim was dismissed at first instance and the dismissal was not appealed. Neilson v Overseas Projects Corporation of Victoria Ltd [2002] WASC 231 at [74], [80], [94], [106] per McKechnie J. 11. (2002) 210 CLR 491; 187 ALR 1. See generally Chapter 20. 12. Neilson v Overseas Projects Corporation of Victoria Ltd [2002] WASC 231 at [123] per McKechnie J. 13. Neilson v Overseas Projects Corporation of Victoria Ltd [2002] WASC 231 at [204] referring to Art 146 of the General Principles of the Civil Law of the People’s Republic of China, which adopts a lex loci delicti test but goes on to provide that: ‘If both parties are nationals of the same country or domiciled in the same country, the law of their own country or of their place of domicile may also be applied’. 14. Mercantile Mutual Insurance (Aust) Ltd v Neilson (2004) 28 WAR 206. 15. Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; 221 ALR 213 at CLR 342, ALR 217 at [13] per Gleeson CJ; at CLR 363, 367, ALR 238 at [91], [102] per Gummow and Hayne JJ; at CLR 387–8, ALR 256 at [171], [174] per Kirby J; at CLR 415, ALR 278–9 at [261] per Callinan J; at CLR 418–19, ALR 281–2 at [271] per Heydon J. 16. See note 15 at CLR 342, ALR 217 at [13] per Gleeson CJ.

17. See note 15 at CLR 418–19, ALR 281–2 at [271] per Heydon J. 18. See note 15 at CLR 366, ALR 237 at [98] per Gummow and Hayne JJ. 19. See note 15 at CLR 342, ALR 217 at [13] per Gleeson CJ; at CLR 363, ALR 235–6 at [89]–[91] per Gummow and Hayne JJ; CLR 387–8, ALR 256 at [171]–[174] per Kirby J. 20. See note 15 at CLR 353, ALR 227 subhead (ii) per McHugh J. 21. See note 15 at CLR 350–1, ALR 226 at [39] per McHugh J. 22. See note 21. 23. See note 15 at CLR 353, ALR 227 at [48] per McHugh J. 24. See note 15 at CLR 414–15, ALR 278 at [259] per Callinan J. 25. See note 15 at CLR 341–2, ALR 217 at [12] per Gleeson CJ; at CLR 373–4, ALR 244 at [131] per Gummow and Hayne JJ; at CLR 389, ALR 257 at [176]–[177] per Kirby J; at CLR 420, ALR 282–3 at [277] per Heydon J. 26. See note 25. 27. See note 15 at CLR 341–2, ALR 217 at [12] per Gleeson CJ; at CLR 373–4, ALR 244 at [131] per Gummow and Hayne JJ; at CLR 420, ALR 282–3 at [277] per Heydon J. 28. See note 15 at CLR 400, ALR 266 at [213]–[215] per Kirby J. 29. See note 15 at CLR 366, 374, ALR 238, 245 at [99], [134] per Gummow and Hayne JJ; at CLR 420, ALR 282–3 at [277] per Heydon J. 30. See note 15 at CLR 388, ALR 256–7 at [175] per Kirby J. 31. In the Estate of Fuld, deceased (No 3) [1968] P 675. In Haji-Ioannou v Frangos [2009] 2 CLC 500 at 510, Slade J said that even if renvoi applies to the law of succession it does not apply to the administration of estates. 32. Re Annesley [1926] 1 Ch 692. 33. Re Duke of Wellington [1947] Ch 506. 34. Simmons v Simmons (1917) 17 SR (NSW) 419. 35. Re Askew [1930] 2 Ch 259. 36. Rome I Regulation (EC) No 593/2008, Art 20. 37. See generally Chapter 19. 38. Barcelo v Electrolytic Zinc (1932) 48 CLR 391 at 437–8 per Evatt J. 39. See, for example, Restatement (Second) of Conflict of Laws § 187(3) (1971) (‘In the absence of a contrary indication of intention, the reference is to the local law of the state of the chosen law’). 40. J Fawcett and J M Carruthers, Cheshire, North and Fawcett’s Private International Law, 14th ed, Oxford University Press, Oxford, 2008, p 71. 41. [1939] AC 277 at 291. 42. (1964) 64 SR (NSW) 195 at 207 (reversed on other grounds: (1964) 116 CLR 124). 43. [2006] WASCA 25. 44. See note 43 at [12] per McLure JA. 45. See note 43 at [17]–[18] per McLure JA. 46. Like many other states, New York applies the Restatement (Second) of Conflict of Laws § 187(2)(a) (1971), which provides that the parties’ chosen law is not to be applied if ‘the chosen state has no

substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice’. New York modified that rule by statute in General Obligations Law § 5-1401, which provides that for transactions worth more than $250,000, a choice of New York law is enforceable ‘whether or not such contract, agreement or undertaking bears a reasonable relation to this state’. The clear implication is that for contracts worth less than $250,000, a choice of New York law is not enforceable in the absence of a reasonable relationship between the transaction and the state. The example in the text therefore depends on the value of the contract in question being less than $250,000. 47. P Nygh, Autonomy in International Contracts, Clarendon Press, Oxford, 1999, pp 32–5. 48. A Briggs, Agreements on Jurisdiction and Choice-of-law, Oxford University Press, Oxford, 2008, p 28, para 2.17. 49. Briggs says that if the parties did make the surprising choice to include the conflict of laws rules of their chosen law, such a choice ‘could only really be seen as capricious’ and should therefore be regarded as impermissible by the conflict of laws rules of the law of the forum: Briggs, n 48 above, at pp 426–7, paras 11.07–08. The Restatement (Second) of Conflict of Laws § 187(3) (1971) does contemplate that it is possible for the parties to make an effective ‘contrary indication of intention’ displacing the presumption that their choice is of the local law of the state of the chosen law. 50. See 19.28. 51. Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 at 363; 221 ALR 213 at 238, at [90]–[91] per Gummow and Hayne JJ. 52. S Symeonides, The American Choice-of-Law Revolution: Past, Present and Future, Martinus Nijhoff, Leiden, 2006, Ch III describes the ‘methodological camps’ in relation to tort and contract choiceof-law in the United States. 53. American Nonwovens Inc v Non Wovens Engineering SRL, 648 So 2d 565, 567 (Ala 1994) (‘[T]he choice-of-law rule followed by Alabama provides that the law of the state wherein the contract was executed governs questions regarding the validity and interpretation of the contract’). 54. [2007] EWHC 132; 2 All ER (Comm) 132. 55. 1995] 1 WLR 978 at 1008. 56. [2009] 2 Lloyd’s Rep 191. 57. A Briggs, ‘Decisions of the British Courts’ [2007] BYIL 626 at 629; Dicey, Morris & Collins on the Conflict of Laws, 14th ed, Sweet & Maxwell Ltd, London, 2006, para 4-023 (now Dicey, Morris and Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell Ltd, London, 2012, pp 87–8, paras 4-023, 4-024). 58. [2009] 2 Lloyd’s Rep 191 at 215–8. 59. Dornoch Ltd v Westminster International BV [2009] 2 CLC 226. 60. See note 59 at 231. 61. [2011] 1 Lloyd’s Rep Plus 6; [2010] EWHC 631. 62. See note 61 at [172]. The reference is to Alfred, Lord Tennyson’s poem Aylmer’s Field (1793), which contains the lines:‘[T]he lawless science of our law, That codeless myriad of precedent, That wilderness of single instances, Thro’ which a few, by wit or fortune led, May beat a pathway out to wealth and fame’. 63. In Haji-Ioannou v Frangos [2009] 2 CLC 500 at 510, Slade J said that even if renvoi applies to the law of succession it does not apply to the administration of estates. 64. [1930] 1 Ch 377. 65. [1950] VLR 462.

66. [1906] P 135. 67. J D Falconbridge, Selected Essays on the Conflict of Laws, 2nd ed, Canada Law Book Co, Ontario, 1954, p 745, saw it as a recognition rule only, but this view is untenable in the light of Har-Shefiv HarShefi(No 2) [1953] P 220. 68. (1841) 2 Curt 855; 163 ER 608. 69. Taczanowska v Taczanowski [1957] P 301. As to capacity to marry, see R v Brentwood Superintendent of Marriages; Ex parte Arias [1968] 2 QB 956. 70. The New York Convention is given the force of law in Australia by the International Arbitration Act 1974 (Cth), ss 7–10. The text appears as Sch 1 to the Act. 71. See Dallah Real Estate & Tourism Holding Co v Pakistan [2011] 1 AC 763 at 838, [110]–[111], citing the joint memorandum of experts in that case and Hecht v Buisman’s [1974] Rev Crit 82; Menicucci v Mahieux [1976] Rev Crit 507. 72. [2011] 1 AC 763. 73. See note 72 above at 842–3, [123]–[125]. 74. See notes 29, 30 above. 75. See, for example, Re Webb (Mohr J, SC (SA), 2 August 1991, unreported) (reversed on other grounds: (1992) 57 SASR 193), where Mohr J refused to apply the foreign court theory in South Australia, because the ‘foreign’ court, that of the Northern Territory, would do the same thing, thus creating a ‘vicious circle or endless oscillation’. 76. Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 at 367–8; 221 ALR 213 at 239, at [105] per Gummow and Hayne JJ. 77. See note 76 at CLR 350–1, ALR 226 at [39] per McHugh J. 78. See, generally, Chapter 18. 79. (1917) 17 SR (NSW) 419. 80. [1926] Ch 692. 81. [1930] 1 Ch 377. 82. Italy has apparently recanted its rejection of renvoi: see note 5 above. 83. [1947] Ch 506. 84. (1841) 2 Curt 855; 163 ER 608. 85. [1903] 1 Ch 821. 86. [1940] Ch 124. 87. Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; 221 ALR 213 at CLR 339–40, ALR 215 at [6] per Gleeson CJ; at CLR 361, 373, 375, ALR 234, 243–4, 245 at [82], [129], [135] per Gummow and Hayne JJ. 88. See M Keyes, ‘Foreign Law in Australian courts: Neilson v Overseas Projects Corporation of Victoria Ltd’ (2007) 15 TLJ 9 at 18. 89. Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 at 340; 221 ALR 213 at 216, at [8] per Gleeson CJ. 90. M Davies, ‘Choice-of-law after the Civil Liability Legislation’ (2008) 16 TLJ 104. 91. [1930] 2 Ch 259. 92. An attempt has been made in the Hague draft conventions to solve this problem by stipulating that a

reference to the law of the nationality, if it turns out to be a reference to a non-unified system, shall be determined by the rules in force in that system and, failing any such rules, by the most real connection which the de cuius had with any of the various laws within that system: Convention on the Conflict of Laws relating to the Form of Testamentary Dispositions 1961, Art 1; Convention on the Law applicable to Maintenance Obligations 1973, Art 16. See K Nadelmann, ‘Nationality Versus Domicile’ (1969) 17 Am Jo of Comp Law 418 at 443–8. 93. M Davies, ‘Neilson v Overseas Projects Corporation of Victoria Ltd: Renvoi and Presumptions About Foreign Law’ (2006) 30 MULR 244 at 254–5. The Supreme People’s Court issued a ‘Notice on Several Questions in Adjudication and Enforcement Concerning Civil and Commercial Cases with Foreign Elements’ on 17 April 2000, which stated that where all parties to a civil litigation are non-Chinese and the disputes have no practical connection with China, a people’s court may advise the parties to choose alternative courts in other countries because litigation in the people’s court would be deemed ‘unrealistic’ on account of the determination of evidence and enforcement of judgments. 94. See S Dobrin, ‘ The English Doctrine of Renvoi and the Soviet Law of Succession’ (1934) 15 BYBIL 36. 95. For example, the forum non conveniens analysis in United States federal courts takes into account ‘public interest factors’ including congestion of the court’s docket: see M Davies, ‘ Time to Change the Federal Forum Non Conveniens Analysis’ (2002) 79 Tul L Rev 309 at 351–64. 96. See note 17 above. 97. A Briggs, ‘In Praise and Defence of Renvoi ’ (1998) 47 ICLQ 877. 98. See notes 29, 30 above. 99. (1962) 108 CLR 230. 100. The Marriage Act 1961 (Cth) s 88F directs that the question of whether a marriage solemnised in another country is to be recognised in Australia as valid must be determined by the choice-of-law rules laid down for the recognition of foreign marriages in Pt VA of that Act, even if the question arises as an incidental question. 101. See Travelers Insurance Co v Workmen’s Compensation Appeal Board, 434 P 2d 992 (Cal, 1967). In Travelers Insurance, the court resolved the incidental question by (consciously) applying the lex causae of the main question. 102. (1962) 108 CLR 230 at 248. 103. See now the Marriage Act 1961 (Cth) s 88F discussed in n 100, above. However, that section would not have been applicable in Haque v Haque (No 1) because the marriage in question was not celebrated in a foreign country. 104. M Wolff, Private International Law, 2nd ed, Clarendon Press, Oxford, 1950, Ch 16; A H Robertson, Characterisation in the Conflict of Laws, Harvard University Press, Cambridge, 1940, p 141. To the opposite effect, see Falconbridge, note 67 above, 1954, pp 765–6. 105. [1964] 1 OR 430. 106. See note 105 above, at [31]. 107. [1965] SCR 148. 108. [1985] Fam 106. 109. Lincoln J at first instance, [1985] Fam 106 at 114–15, and Sir David Cairns in the Court of Appeal, at 134, referred to the law of the intended matrimonial home, in this case England, as the law upholding her capacity to remarry. 110. See note 108 above, at 124–5 per Ackner LJ, at 134–5 per Sir David Cairns.

111. See note 108 above, at 130–4. 112. (1962) 108 CLR 230. 113. [1985] Fam 106. 114. [1964] 1 OR 430; [1965] SCR 148. 115. A A Ehrenzweig, Treatise on the Conflict of Laws, West Publishing, New York, 1962, p 341.

[page 380]

Chapter 16

Substance and Procedure Introduction 16.1 The distinction between matters of substance, which are governed by the lex causae, and matters of procedure, which are governed by the lex fori, is long established in the conflict of laws. Thus, as early as 1835, Tindal CJ when asked to enforce a French contract stated the distinction in the following terms in Huber v Steiner:1 … so much of the law as affects the rights and merit of the contract, all that relates ‘ad litis decisionem’, is adopted from the foreign country; so much of the law as affects the remedy only, all that relates ‘ad litis ordinationem’, is taken from the lex fori of that country where the action is brought.

A determination that a rule is procedural and, therefore, governed by the law of the forum may greatly influence the outcome of the case, even to the point of denying a plaintiff the enforcement of a right granted by the law governing the cause of action. Thus, a decision that a local statute of limitations is procedural will mean that the plaintiff’s action is barred even though under the law governing the cause of action the period of limitations is longer. Conversely, a decision that a foreign statute of limitations is procedural will allow a foreign plaintiff to enforce a right in the forum which could no longer be enforced in the country where that right originated.2 Even the application of local rules of a purely evidentiary character may affect the outcome of a case. Much, for instance, may depend on the admission of certain hearsay evidence. There are indeed very few instances where the classification of a rule as being either procedural or substantive does not have a weighty effect on the outcome of the case. 16.2 How does one draw this distinction between ‘laws that affect the rights

and merits’ and ‘laws that affect the remedy only’? There can be no simple answer. As Goulding J said in Chase Manhattan Bank v Israel-British Bank (London) Ltd:3 Within the municipal confines of a single legal system, right and remedy are indissolubly connected and co-related, each contributing in historical dialogue to the development of the other, and, save in very special circumstances, it is as idle to ask whether the

[page 381] court vindicates the suitor’s substantive right or gives the suitor a procedural remedy as to ask whether thought is a mental or a cerebral process. In fact the court does both things by one and the same act.

Similarly, in Garsec v Sultan of Brunei,4 Campbell JA said: It is well recognised that it is impossible to draw a bright line, good for all purposes, between matters of substance and matters of procedure. For example, W W Cook opined that ‘the “line” between [substance and procedure] does not “exist”, to be discovered merely by logic and analysis, but is rather to be drawn so as best to carry out our purpose’.

16.3 The modern Australian starting point for the distinction between substance and procedure is to be found in the following passage from the judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, in John Pfeiffer Pty Ltd v Rogerson:5 Two guiding principles should be seen as lying behind the need to distinguish between substantive and procedural issues. First, litigants who resort to a court to obtain relief must take the court as they find it. A plaintiff cannot ask that a tribunal which does not exist in the forum (but does in the place where a wrong was committed) should be established to deal, in the forum, with the claim that the plaintiff makes. Similarly, the plaintiff cannot ask that the courts of the forum adopt procedures or give remedies of a kind which their constituting statutes do not contemplate any more than the plaintiff can ask that the court apply any adjectival law other than the laws of the forum. Secondly, matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or to adopt the formulation put forward by Mason CJ in McKain: ‘rules which are directed to governing or regulating the mode or conduct of court proceedings’ are procedural and all other provisions or rules are to be classified as substantive.

16.4 It is immaterial how the issue in question is characterised by the lex causae. Characterisation of the issue must be made according to the standards of the forum court. Thus, for example, in Hamilton v Merck & Co Inc,6 the New South Wales Court of Appeal held that provisions of the Personal Injuries Proceedings Act 2002 (Qld) requiring written notice and a compulsory conference of the parties before court action could be brought were procedural

according to the John Pfeiffer test, notwithstanding the fact that the Queensland Act itself declared those provisions to be substantive.7 Similarly, in Garsec v Sultan of Brunei,8 the New South Wales Court of Appeal held the Sultan of Brunei’s constitutional immunity from suit under [page 382] Brunei law to be substantive in nature according to the John Pfeiffer test. It was irrelevant how the immunity was classified under Brunei law.9 16.5 Under the John Pfeiffer test, fewer issues are characterised as procedural than was the case under the approach formerly followed by the High Court of Australia.10 The John Pfeiffer test is, in effect, what has long been referred to as the ‘outcome determination’ test. The most notable proponent of the ‘outcome determination’ test was Cook,11 who wrote that the distinction between substance and procedure should be drawn by reference to the effect which the application of, or failure to apply, a particular rule would have on the outcome of the trial, taking into account questions of local policy and convenience. In Cook’s view the crucial question is: ‘How far can the court of the forum go in applying the rules taken from the foreign system of law without unduly hindering or inconveniencing itself?’.12 16.6 Cavers went further than Cook, arguing that even the outcomedetermination test should be abandoned and that courts should be given the discretion to use, at counsel’s request, the procedural rules of the lex causae, including the purely technical rules, whether their use would affect the outcome or not. However, in the exercise of its discretion the court would still pay regard to matters of local policy and convenience.13 Such an approach is now open to an Australian court when exercising cross-vested jurisdiction under s 11(1)(c) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and equivalent state and territorial legislation which permits the court to apply such rules of evidence and procedure ‘as the court considers appropriate, being rules that are applied in a superior court in’ Australia, or in an external territory.14 16.7 The John Pfeiffer court acknowledged that the newly-adopted principles would require ‘further elucidation in subsequent decisions’.15 Their Honours only addressed specifically the issues of limitation periods and caps on the amount of damages recoverable. Both are now to be regarded as substantive.16

[page 383]

Limitations in Time Within Australia and New Zealand 16.8 Within Australia and between Australia and New Zealand, the characterisation of limitation laws is now governed by statute; they are regarded as substantive.17 The legislation reverses the position that prevailed at common law prior to the decision of the High Court in John Pfeiffer Pty Ltd v Rogerson,18 which was that limitation laws were generally regarded as procedural. The previous common law position had been confirmed by a majority of the High Court in McKain v R W Miller & Co (SA) Pty Ltd.19 16.9 The Australian Law Reform Commission recommended that limitation periods should be treated as matters of substance.20 Following this recommendation, and in direct response to the High Court’s decision in McKain, all Australian jurisdictions and New Zealand passed legislation treating limitation periods as substantive.21 16.10 The legislation applies to proceedings instituted after the commencement of the Acts, regardless of the time when the cause of action arose. It provides that where the substantive law of another Australian state or territory or of New Zealand is to govern a claim before a court of the jurisdiction in question, a limitation statute of that other place is to be regarded as part of that substantive law.22 Furthermore, any discretion to extend the period of limitation shall be exercised as far as practicable in conformity with the law and practice of that other place.23 Contrary to the recommendation of the commission, the statutes apply only where the lex causae is that of another state or territory, or of New Zealand.24 There is no proposal to extend the Australian legislation to other countries where similar principles prevail, such as the United Kingdom, where the equivalent legislation applies to all other countries.25 [page 384]

International cases

16.11 Common law principles continue to govern international disputes, other than those involving New Zealand. As noted above, the traditional common law position reaffirmed in McKain v R W Miller & Co (SA) Pty Ltd26 was that limitation laws are generally regarded as procedural. In John Pfeiffer Pty Ltd v Rogerson,27 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ noted that the distinction between questions of substance and questions of procedure is ‘very hard, if not impossible’ to draw in a principled fashion, but quoted McKain as authority for the proposition that the distinction remains significant. However, the majority went on to say that, bearing in mind that:28 … matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure … the application of any limitation period, whether barring the remedy or extinguishing the right, would be taken to be a question of substance not procedure (which is the result arrived at by the statutes previously referred to).

Although these comments were obiter dicta, they clearly indicate an intention on the part of the High Court to abandon the traditional view that limitation laws are procedural. Lower courts after John Pfeiffer have treated foreign limitation laws as substantive.29 16.12 Even before John Pfeiffer, the common law position was that a rule that provides for a prescriptive right of ownership by virtue of adverse possession over a stated number of years extinguishes the previous owner’s right as well as the remedy.30 Hence, such a limitation provision has always been regarded as substantive and must be applied whenever the law of which it forms part is the lex causae.31 The same applies to foreign provisions that purport to extinguish any right or title in any claim for debt, damages or property in respect of which the limitation period has expired. If the foreign law containing provisions of this kind governs the relevant right, it must be applied by any other court to extinguish that right if the period has expired. 16.13 The High Court of Australia has also approved the proposition that a limitation provision annexed by a statute to a right created by it, such as the time limitation found in fatal accident or workers’ compensation legislation, should not be regarded as merely barring an existing right of action, but as imposing ‘a condition which is of the essence of a new right’ and hence part of that substantive [page 385]

right.32 This also applies to legislation that purports to abolish an existing right in general terms but then to restore it only in defined circumstances, including a time limitation. That was the case in s 23 of the Workmen’s Compensation Act 1981 (NT) which in subs (1) abolished the common law action, but in subs (3) restored a right to sue for damages subject to the time limitation set out in subs (3A). Hope AJA with the reluctant concurrence of Mahoney JA classified that restraint as part of the substantive right in Byrnes v Groote Eylandt Mining Co Pty Ltd.33

Damages and Statutory Compensation 16.14 It is well established that the question of what heads of damages are recoverable in tort and in contract is a matter of substantive law determined by the lex causae.34 On the other hand, the quantification of damages was traditionally regarded as a matter of procedure.35 16.15 In Stevens v Head,36 the High Court of Australia held that statutory restrictions on the amount recoverable in an action in tort were procedural in nature and thus were not to be applied in an action brought in another Australian jurisdiction. The High Court took the view that the imposition of monetary limits only affected the quantification of damages while leaving the relevant head of damage unaffected.37 Indeed, in relation to torts, the majority took the view that any matter other than the availability of a head of damage was a matter of quantification.38 16.16 However, in John Pfeiffer Pty Ltd v Rogerson,39 the High Court of Australia indicated that it no longer adhered to the position adopted in Stevens v Head. The majority held that:40 … all questions about the kinds of damage, or amount of damages that may be recovered, would likewise be treated as substantive issues governed by the lex loci delicti.

[page 386] A majority of the High Court in Regie Nationale des Usines Renault SA v Zhang41 said that it would ‘reserve for further consideration, as the occasion arises’ whether this proposition should be applied in cases of foreign torts. That further consideration has not yet taken place in the High Court. In intraAustralian cases, lower courts now routinely proceed on the basis that all issues

relating to assessment of damages should be regarded as substantive.42 16.17 The post-John Pfeiffer practice brings the law in relation to tort damages in line with the approach taken to limitations on the damages recoverable in contract. In the case of damages arising out of a contractual claim, the New South Wales Court of Appeal held in Allan J Panozza & Co Pty Ltd v Allied Interstate (Q) Pty Ltd43 that a restriction contained in a Queensland statute on the amount recoverable in respect of the breach of a contract of carriage of goods was part of the substantive law. Similarly it was held by the Supreme Court of Canada in Livesley v Horst44 that damages for breach of contract should be assessed according to the proper law of the contract. 16.18 In response to the High Court’s decision in Stevens v Head, several jurisdictions enacted provisions declaring that statutory restrictions on the recovery of damages in those jurisdictions are substantive, not procedural.45 Where those provisions related to the measure of damages (such as, for example, statutory caps on recovery for damages for pain and suffering) they were, prior to John Pfeiffer, generally ignored in other jurisdictions, which continued to regard quantification as a matter for the lex fori, no matter what the statute in question might say about its substantive nature, the characterisation of that statute as substantive or procedural being for the forum court and not the legislature of the lex causae to decide.46 After John Pfeiffer, such statutory caps would be regarded as substantive (as they were in John Pfeiffer itself) notwithstanding what the legislature of the lex causae had to say about the matter. 16.19 Where the statutory provision actually removes the common law right to damages and replaces it with a statutory right of action for compensation, it was regarded as substantive even prior to the decision in John Pfeiffer. Thus, for example, [page 387] in Thompson v Hill; Clark v Fowler,47 the Court of Appeal of New South Wales held that s 93 of the Transport Accident Act 1986 (Vic) is a substantive provision that extinguishes the right to recover common law damages in respect of a transport accident in Victoria, with the result that an action brought in New South Wales for compensation for injuries received in a transport accident in Victoria was governed by the Victorian statutory scheme. Similarly, in James

Hardie & Co Pty Ltd v Hall,48 the Court of Appeal of New South Wales held that the statutory compensation scheme for personal injuries in New Zealand was substantive, not procedural, and thus was to be applied to an action brought in New South Wales in relation to personal injuries sustained in New Zealand.

Evidence General principles 16.20 The rules governing admissibility of evidence are usually regarded as procedural because they are ‘directed to governing or regulating the mode or conduct of court proceedings’ under the John Pfeiffer test.49 The law of evidence is the lex fori which governs the Courts. Whether a witness is competent or not; whether a certain matter requires to be proved by writing or not; whether certain evidence proves a certain fact or not: that is to be determined by the law of the country where the question arises, where the remedy is sought to be enforced, and where the Court sits to enforce it.

This statement by Lord Brougham in Whitehaven Rly Co v Forbes50 certainly lays down the general principle that matters of evidence are for the law of the forum to determine. But ‘it is not everything that appears in a treatise on the law of evidence that is to be classified internationally as adjective law, but only provisions of a technical or procedural character — for instance, rules as to the admissibility of hearsay evidence or what matters may be noticed judicially’.51 Within the European Union, the adoption of the Rome I52 and Rome II53 Regulations means that some issues that were previously regarded as matters of procedure for the lex fori are now regarded as substantive matters for the lex causae, such as proof of a contract, and provisions of the law of contract as to the burden of proof and presumptions of law.54 [page 388] 16.21 The distinction between substance and procedure in matters concerning evidence has been defined as a distinction between rules that prescribe what facts must be proved and rules that prescribe how these facts ought to be proved.55 This distinction is undoubtedly useful at times. For example, in The Gaetano and Maria56 the question at issue was whether a

bottomry bond given by the master of an Italian ship without the consent or knowledge of the owners was valid. It was conceded that everything had been done to render the bond valid under Italian law. However, it was argued that since under English law such a bond could only be issued without the knowledge of the owners in the case of necessity, the plaintiff ought to prove that a necessity existed. This, it was argued, was a question of proof determinable by the lex fori. However, as the Court of Appeal pointed out, the question whether the bottomry bond was validly issued, in other words whether there was a need to prove necessity, was a question for the lex causae, the law of Italy as the law of the flag. Since the bond was valid under that law, the English law of necessity was irrelevant. The question whether or not it was necessary to prove necessity was a question of what facts needed to be proved, not how a fact should be proved. 16.22 Nevertheless, the analytical test can be very difficult to apply at times. For example, the parol evidence rule excludes the use of extrinsic evidence, including direct statements of intention and antecedent negotiations, to subtract from, add to, vary or contradict the language of a document the parties have adopted as contractual.57 In the United States, the parol evidence rule is regarded as a rule of substantive contract law, not a rule of evidence.58 In contrast, in England, the parol evidence rule has been treated as a rule of evidence and thus part of the lex fori applicable to foreign contracts. In Korner v Witkowitzer,59 the English Court of Appeal did not allow the plaintiff to adduce evidence that would add an orally agreed term to a written contract governed by Czech law. Denning LJ drew a distinction between the admission of evidence to vary the contents of a written document and the interpretation of contracts.60 The interpretation of a contract is, as he pointed out, governed by the proper law of the contract. If under that law oral evidence is admissible to interpret the document the forum will admit it even though there is no similar rule under the lex fori. Thus, if the proper law permits it, evidence could be called to show that even though the parties wrote X into their contract, they really meant Y. In Australian Zircon NL v Austpac Resources NL,61 Corboy J of the Supreme Court of Western Australia followed Korner to the extent of holding that ‘evidence of the [page 389] circumstances surrounding the formation of a contract’ is a matter of substantive,

not procedural, law, as that evidence goes to matters the law regards as being relevant to the construction of a contract rather than to the question of what are the terms of the contract. Obviously the distinction between the admission of evidence to vary the contents of a document and the admission of evidence to interpret it is a fine one. It might well be asked why the forum should have difficulty in admitting the one if it is quite happy to admit the other where the lex causae permits it. Under the ‘outcome determination test’ the answer should be clear. In both situations the substantive outcome of the decision is affected by admission of the evidence. To use the language of John Pfeiffer, in both situations the evidence relates to a matter that ‘affect[s] the existence, extent or enforceability of the rights or duties of the parties to an action’ and so the rule about its inclusion should be regarded as substantive. In Australian Zircon, Corboy J found it unnecessary to decide whether the lex causae should apply to parol evidence seeking to add to the written terms of the agreement, as the rules in the lex causae and lex fori — New South Wales and Western Australia, respectively — were the same.62 16.23 Another example of the distinction between rules that prescribe what facts must be proved and rules that prescribe how these facts ought to be proved can be seen in changes to the common law made by the Australian civil liability legislation. When a patient brings an action complaining of a doctor’s negligent failure to warn of the risks associated with a medical procedure, the common law requires the court to apply a subjective test when considering whether the negligent failure caused the harm sustained by the plaintiff.63 The relevant question at common law is whether the particular plaintiff would have undergone the operation if he or she had been warned of the risks, not what a reasonable person in the plaintiff’s position would have done.64 New South Wales, Queensland, Tasmania and Western Australia have passed legislation providing that the court must make this kind of subjective inquiry in all cases where it is relevant ‘to determine what the person who suffered harm would have done if the negligent person had not been negligent’.65 However, the legislation in those four states goes on to provide that any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.66 The fact (or hypothetical fact) that must be proved in such a case is ‘what the person who suffered harm would have done if the negligent person had not been [page 390]

negligent’67 but the provisions excluding the evidence of the person who suffered the harm govern how that fact must be proved. It follows that the rule about the plaintiff’s evidence is procedural and should only be applied as part of the lex fori.

The Statute of Frauds and other statutes stipulating requirements as to form 16.24 The old English decision in Leroux v Brown68 long stood as authority for the proposition ‘that the Statute of Frauds does not affect the validity of a contract, but only imposes conditions as to its proof’.69 In Tipperary Developments Pty Ltd v Western Australia,70 the Western Australian Court of Appeal held that the rule in Leroux should no longer be followed in Australia after John Pfeiffer, and that the writing requirements of the Statute of Frauds should now be regarded as substantive, and governed by the lex causae.71 16.25 In Rothwells Ltd (in liq) v Connell,72 a Full Court of the Supreme Court of Queensland held that a deed governed by Western Australian law could be enforced by action in Queensland even though it had not been stamped as required by the Western Australian stamp duty legislation.73 That outcome was justified by Fitzgerald P and Williams J on the ground that even if the Western Australian stamp duty legislation were to be regarded as applicable, it was overridden by an inconsistent provision of the Queensland stamp duty legislation.74 In contrast, McPherson JA said that the ‘statutory disqualification or disability’ imposed by the Western Australian stamp duty legislation was ‘properly to be considered as going only to enforceability and thus to procedure, rather than to the substance of the obligation’.75 Even before John Pfeiffer, it was difficult to defend McPherson JA’s analysis, given that the relevant Western Australian provision stated that ‘no instrument chargeable with duty … shall … be pleaded or given in evidence or admitted to be good, useful, or available in law or in equity, unless it is duly stamped’.76 Under the John Pfeiffer test, a provision of the Western Australian lex causae providing that an unstamped document cannot be ‘admitted to be good, useful or available in law or in equity’ should surely now be regarded as a rule affecting ‘the existence, extent or enforceability of the rights or duties of the parties’, and therefore substantive.77 [page 391]

Privilege 16.26 The rules of privilege, including legal professional privilege, are essentially rules about when evidence need not be given or, rather, when it is not contempt of court to withhold evidence that would otherwise be admissible. So described, they may seem squarely to form part of the procedural law of the forum, even under the John Pfeiffer view of the substance/procedure divide. The Supreme Court of New South Wales so held in Michael Wilson & Partners Ltd v Nicholls,78 as did a Full Court of the Federal Court of Australia in Stewart v Australian Crime Commission.79 In Michael Wilson & Partners, Brereton J of the Supreme Court of New South Wales said that the court should apply what has been described as a kind of ‘enlightened lex fori’80 that is sensitive, at least to some extent, to the demands of foreign law:81 [T]he better view is that the law of the forum governs questions of discovery and privilege, and while the Court will have regard in making orders and in framing regimes for production of documents to the circumstance that foreign law obligations of confidentiality may be involved, that circumstance will not provide an absolute objection to an order for production. Where such foreign obligations of confidentiality are involved, the Court may limit or even dispense with discovery or production as a matter of discretion, taking into account whether the party seeking a limitation or dispensation is the plaintiff or the defendant, and the identity of the third parties whose confidentiality is at stake, but, in general, local notions will predominate because discovery is a part of the local procedure.

In Stewart, a majority of the Full Court held that no choice-of-law question arose when determining whether Californian lawyers could claim legal professional privilege under Californian law as a reason for refusing to disclose documents sought under the Australian Crime Commission Act 2002 (Cth), ss 28 and 29. The majority said that the only legal professional privilege that was not abrogated by the general words of s 29 of the Act was the Australian law of privilege, which privileges communications with lawyers, whether local or foreign, for the purpose of obtaining legal advice, whether the law on which they are advising is local or foreign, and whether the communication occurs in Australia or somewhere else.82 In other words, although the communication and the communicator may be foreign, the privilege attaching to the communication is always Australian. Within the European Union, the question of which national law confers the protection of legal professional privilege may be becoming redundant, at least in relation to inquiries governed by European Union law. In Akzo Nobel Chemicals Ltd v Commission of the European Communities,83 officials of the Commission of the European Communities photocopied documents during an inquiry into

suspected anti-competitive practices by an English firm. The firm claimed that the documents were subject to legal professional privilege under English law, as they had been [page 392] prepared by an in-house lawyer admitted to practise law. The Court of Justice of the European Union stated a European rule of legal professional privilege that did not protect communications with in-house lawyers during antitrust investigations. The court said that the use of national rules or legal concepts deriving from the law of a member state would adversely affect the unity of European Union law, at least in relation to the legality of a decision taken by an institution of the European Union on the basis of a Regulation adopted at European Union level.

Burden of Proof and Presumptions 16.27 It is impossible to lay down a general rule in relation to the burden of proof and presumptions. It is true that Langton J once declared in The Roberta84 that the question of burden of proof is governed by the law of the forum, but such a sweeping generalisation hardly fits the approach of the High Court as adumbrated in John Pfeiffer Pty Ltd v Rogerson. The ‘outcome determination test’ must now be applied and the question must be considered in relation to each rule individually, guided by such considerations of policy as may be relevant.85 16.28 Some rules are the result of a strong local policy, which the court will apply in all cases before it. Generally speaking, a rule that prescribes a certain standard of proof, such as ‘beyond a reasonable doubt’ or ‘to reasonable satisfaction’, or rules which seek to guard against fraud, undue influence, collusion and perversion of justice, will be regarded as procedural and applied notwithstanding the lex causae. Clearly, the court has the duty to safeguard its own judicial integrity and standards. This was perceived by Scarman J in In the Estate of Fuld, deceased (No 3)86 where he said: The English court is asked to grant probate in solemn form. Upon it falls the responsibility of deciding whether the instruments propounded express the real intentions of the testator. In my judgment the discharge of this responsibility is a matter for the judicial conscience of the court, guided in the business of investigation and proof by the lex fori.

16.29 On the other hand, as Wolff and Briggs have suggested,87 rules on the burden of proof that are closely connected with the existence or non-existence of substantive rights should be classified as substantive. If the governing law of a contract provides that a particular loss should be taken to have been caused by a breach unless the defendant proves that it was not, or the lex loci delicti provides that damage will be presumed to be attributable to the tortfeasor’s breach of duty unless the defendant proves that it was not, it would appreciably alter the rights of the parties if the forum court were to apply its rules on the burden of proof and disregard the presumption [page 393] established under the lex causae.88 Rules of that kind would seem clearly to be substantive under the John Pfeiffer test.89 16.30 For example, each Australian jurisdiction except Victoria has legislated to provide that a plaintiff who was intoxicated at the time of the harm is presumed to have been contributorily negligent unless he or she proves that the intoxication did not contribute to the harm.90 This is a simple reversal of the burden of proof, which in effect dictates who should lose if the court remains undecided about whether the plaintiff’s intoxication contributed to the harm he or she suffered. Because it is a presumption of fault rather than a presumption about a fact, it seems clearly to be substantive.91 16.31 Similarly, each Australian jurisdiction other than the Northern Territory has legislated to replace the common law test for reasonable foreseeability of risk formulated by the High Court of Australia in Wyong Shire Council v Shirt.92 The legislation provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was ‘not insignificant’.93 It was designed to raise the threshold of the risks to which potential defendants are required to respond, thereby making liability more difficult for plaintiffs to establish. Because the very purpose of the legislation was to ‘affect the existence, extent or enforceability of the rights or duties of the parties to an action’, it seems unquestionably to be substantive in effect.94 Other examples of substantive changes wrought by the civil liability legislation are considered in detail at 20.22–20.33. 16.32 Close attention must be paid to the form of the relevant rule when determining whether it is substantive or procedural. A legislative provision

phrased in terms of what a court should do, rather than in terms of the rights and obligations of the parties, appears procedural in effect, operating as a directive ‘governing or regulating the mode or conduct of court proceedings’ in the legislating jurisdiction. For example, all eight Australian jurisdictions have modified the rules of joint and several liability by introducing proportionate liability for claims concerning economic [page 394] loss or property damage.95 The liability of a defendant for what the legislation calls ‘an apportionable claim’ is limited to what the court considers ‘just having regard to the extent of the defendant’s responsibility for the loss or damage’.96 Except in South Australia, the provisions in question are cast in terms of the matters the forum court must take into account in determining the extent of the defendant’s liability: for example, in Tasmania and Western Australia, ‘a court is to have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings’.97 It would seem that this strong local policy should be applied even in cases where the lex loci delicti retains joint and several liability or has introduced proportionate liability in a different way.98 Conversely, it need not be applied in other jurisdictions that do not have comparable legislation, where the courts are free to ignore the Tasmanian or Western Australian instruction about what they must consider when reaching their decision. 16.33 Similarly, New South Wales and Victoria have passed legislation providing that liability for breach of a non-delegable duty to ensure that reasonable care is taken should be determined as if the defendant were vicariously liable for the negligence of the person to whom the task was delegated.99 Those provisions were intended to remove the possibility that a plaintiff might try to avoid the restrictions that the legislation imposes on negligence liability by bringing an action for breach of a non-delegable duty, to which the legislation would not apply because it is not an action alleging a failure to take reasonable care.100 The provisions are cast in terms of what a court should do — ‘the extent of liability … is to be determined as if …’ — rather than in terms of the rights and obligations of the parties themselves. Accordingly, they should be regarded as procedural, applying to proceedings in

New South Wales and Victoria regardless of where the alleged wrong occurred. 16.34 The presumptions that come under the rubric semper praesumitur pro matrimonio represent another strong policy of the forum. There is no doubt that the common law presumption in favour of a valid marriage which results from the [page 395] celebration of a marriage ceremony between the parties, or their long cohabitation, or both, as well as community acceptance of the parties’ status as a married couple, applies equally strongly to marriages celebrated abroad.101 Nevertheless, in their anxiety to uphold a marriage whenever possible, courts have not hesitated to apply foreign presumptions to the same effect. Thus, English courts have applied the Scottish presumption that a marriage can be inferred from general reputation and acknowledgement.102 In Mahadervan v Mahadervan,103 Sir Jocelyn Simon P applied to a marriage celebrated in Ceylon a provision of the Ceylonese Marriage Ordinance, which made a marriage certificate conclusive evidence that the marriage had been celebrated in the proper district. 16.35 Though there is no authority on the subject, the policy in favour of legitimacy would, it is submitted, lead to similar results, to the extent that the distinction between legitimacy and illegitimacy retains any legal significance.

Parties to an Action 16.36 The question whether a foreigner can be a party to an action in an Australian court is a matter of procedure for the law of the forum.104 But this does not mean that foreign law is irrelevant. Thus, the question of whether a foreign corporation has the requisite legal personality to sue or be sued in this country is a matter for the law of its incorporation,105 and the question of whether an unincorporated legal entity has standing to sue or be sued is a matter for the law of its place of formation.106 If under the relevant law an inanimate object such as a temple or idol has legal personality, the standing of that body to sue or be sued (by or through the human agents appointed under that law) is recognised because the lex fori recognises the right of legal persons to sue and be

sued.107 16.37 The procedure of the law of the forum determines whether an action should be brought in the name of the owner of the right or in the name of the person claiming on the owner’s behalf.108 The same is true in relation to the name of the person to [page 396] be sued.109 Conversely, our courts will ignore any restraints under the plaintiff’s personal law limiting the right to bring action in one’s own name.110 Australian and English courts have been generally willing to recognise representative actions based on foreign law. This includes actions brought by the foreign administrator of the estate of a mentally-ill person,111 actions brought by foreign receivers of the assets of a debtor,112 and actions brought by a foreign trustee in bankruptcy.113 In each case the right of the representative to bring action to enforce the rights of the de cuius will be recognised provided there is a sufficient connection between the de cuius and the jurisdiction which appointed the representative, receiver or trustee.114 16.38 The only exception to this comity is the proposition that a foreign legal personal representative cannot sue or be sued on behalf of a deceased’s estate if his or her right depends only on a foreign grant of representation.115 Thus, the right of representation must also be obtained in the forum.116 Regrettably this principle was extended in Kamouh v AEI International Ltd,117 where Parker J held that a person appointed administrator of the estate of an absent person under Lebanese law could not sue in England to recover the absentee’s debts unless leave was obtained to swear death, and an English grant of administration was made. 16.39 Foreign law may sometimes authorise a particular person to sue on behalf of a group of persons with common rights. Such a law does not vest the rights of the individuals concerned in the person appointed but merely makes that person their representative for the purpose of maintaining their suit on their behalf. Our courts will recognise the representative and allow that person to maintain a suit as such in the forum where this is authorised by the law governing the relationship between the representative and the persons represented.118

16.40 The question whether a right of action has been assigned from A to B is a question of the validity of the assignment and depends on the law governing the same. If that assignment is valid under the appropriate law, B should be allowed to bring suit in his or her own name in the forum. A difficulty may arise where, as used to be the case at common law, the forum does not permit an assignment of the legal title in a chose in action and will only permit the equitable assignee to bring an action if the assignor is joined in the action. Though, on the face of it, this appears to be a procedural requirement, it is in reality a rule of substance relating to the validity of the assignment. Consequently, the law governing the assignment [page 397] determines whether the assignee is vested with the legal and equitable title in the chose in action.119 (See generally 33.61–33.66.) 16.41 In relation to defendants, the question may arise whether amongst several persons who are liable, one should be sued before the other. In some legal systems an individual partner cannot be held liable for the debts of the partnership until judgment has been obtained against the partnership as such. Other legal systems require that the principal debtor be sued before a surety can be held liable. If failure to sue the partnership or principal debtor under the substantive law applicable to the cause of action has the effect of discharging the liability of the partner or surety, as the case may be, such a law is to be treated as substantive and the discharge of the liability will be given effect to in Australia.120 If the requirement that the partnership be sued first under the relevant law is merely a precondition of enforcing the liability of the individual partners, the law is procedural and will not be applied by an Australian court.121 Garnett argues that this distinction may no longer hold good after John Pfeiffer.122

Priorities and Security 16.42 It may happen that the property of a defendant or deceased person that the court has available for distribution is not sufficient to meet the claims of all creditors. The question of whether the debt exists is for the lex causae to determine. But it has been consistently held that the question of priority of

creditors inter se is a matter affecting the remedy and thus governed by the lex fori. Thus, it is well established that the priorities of creditors in bankruptcy,123 or against insolvent estates,124 ‘are dealt with by the lex fori, and not by the law of the countries where the debts are contracted, except so far as such laws are necessary to establish that there are debts’,125 although the priority rights of creditors in bankruptcy are now affected by Australia’s enactment of the UNCITRAL Model Law on Cross-Border Insolvency, which is considered in Chapter 36. 16.43 Secured rights, that is to say, rights that have been secured over the land or chattels of the owner as distinct from a mere personal right of enforcement against the owner, enjoy priority over such personal, unsecured, claims. The question may well arise whether a foreign right should be classified as a secured right, or a right in rem. The Privy Council on appeal from Singapore held by a majority in The Halcyon Isle126 that a claim which under its proper law is enforceable in rem [page 398] cannot be enforced if under English law it would not have given rise to a maritime lien. The Privy Council said:127 In the application of English rules of conflict of laws, maritime claims are classified as giving rise to maritime liens which are enforceable in actions in rem in English courts where and only where the events on which the claim is founded would have given rise to a maritime lien in English law, if those events had occurred within the territorial jurisdiction of the English courts.

Although The Halcyon Isle has been followed in Australia in a pre-John Pfeiffer case,128 it is questionable whether the principle for which it stands is consistent with John Pfeiffer. Determining whether or not a claim is secured by a maritime lien only has any practical significance if there is not enough money available to pay both secured and unsecured claims. For that reason, the question whether or not a claim is secured by a maritime lien is outcome determinative in a very real sense, in that the answer affects the plaintiff’s prospects of successful recovery. Thus, it should be regarded as a substantive issue affecting ‘the existence, extent or enforceability of the rights or duties of the parties’ rather than merely a procedural rule ‘directed to governing or regulating the mode or conduct of court proceedings’.129 It follows that a foreign claim that has the status of a maritime lien by the law governing that claim should be accorded the same status in a

court in Australia. That is the position in Canada.130 Although the secured status of the claim should be determined by the lex causae, the priority the secured claim enjoys vis-à-vis other secured claims must necessarily be governed by the lex fori. The Personal Property Securities Act 2009 (Cth) creates a series of rules that require application of the lex causae to questions of security interests in personal property. Perfection of a security interest in goods is governed by the law of the jurisdiction in which the goods are located at that time (the lex situs),131 and perfection of a security interest in intangible property132 or ‘financial property’133 is governed by the law of the jurisdiction in which the grantor is located at that time (the lex loci actus). The Act creates a special rule for priority in relation to ‘financial property’. If the foreign law governing the perfection of a security interest in ‘financial property’ does not provide for public registration or recording or notice of the priority interest, that interest has priority over all other interests (not only security interests) if it is perfected by registration in Australia before the other interest attaches to the [page 399] property if the property is located in Australia when the other interest arises, and if the secured party does not have possession or control of the property.134 There are no specific rules governing priority of security interests in property other than ‘financial property’.

The Remedy 16.44 A plaintiff who seeks to enforce a foreign right can only invoke local forms of action and can only obtain relief in the form and manner that the forum provides.135 It is not by itself a bar to jurisdiction that the procedure available in the forum will give the plaintiff more or less than would have been obtained if action had been brought in the jurisdiction where the cause of action arose. The forum may well enforce a foreign right by injunction even though a court of the lex causae could not have granted that remedy.136 But, as was said by Lord Parker CJ in

Phrantzes v Argenti:137 ‘[I]f the machinery by way of remedies here is so different … as to make the right sought to be enforced a different right, that right would not … be enforced in this country’. Thus if, as happened in Phrantzes v Argenti, a plaintiff seeks to enforce a right of dowry which Greek law gives her, an English court cannot assume jurisdiction where the only order it can make is for the payment of a fixed sum and the only order a Greek court could have made is to order the father to instruct a notary to draw up a dowry contract. The remedies here are too disparate to do justice between the parties. 16.45 Nevertheless, care must be taken to avoid the language of the vested rights theory. The question is not to be put in analytical terms such as ‘the remedies available must harmonise with the right according to its nature and extent as fixed by the foreign law’.138 The chief consideration surely is not one of the nature of the right sought to be enforced, but whether the forum can in the circumstances do justice as between the parties. 16.46 Justice cannot be done if the forum is asked to exercise a power that lies in the discretion of the foreign court. The forum will not be deterred by the fact that the foreign law is difficult to apply or even that its application will involve the ascertainment of such imponderables as ‘the requirements of good faith and ordinary usage’, if the court can come to some definite conclusion on the evidence of the foreign law placed before it.139 But Australian courts will not exercise an unfettered discretionary power that has been vested by the foreign law in its own courts. Such a discretion can only be exercised by the courts to whom it was [page 400] entrusted in the first place.140 As Kirby J observed in Neilson v Overseas Projects Corporation of Victoria Ltd:141 [T]he duty of the primary judge in the forum was not (and could never properly be) to step into the shoes of a foreign judge, exercising that judge’s powers as if sitting in the foreign court. Instead, it was to ascertain, according to the evidence or other available sources, how the foreign court itself would have resolved the substantive rights of the parties in an hypothetical trial conducted before it.

Set-Off and Counterclaim 16.47 The question whether a defendant is entitled to deduct any debt owed to

him or her by the plaintiff from the amount owing under a judgment, as is allowed under some civil law systems,142 or whether proceedings should have been instituted by way of set-off or counterclaim, has been held to be a matter of procedure for the law of the forum to determine.143 However, if by the law of the lex causae the set-off amounts to an equity directly attaching to the claim, so that it operates in partial or total extinction of the claim, the lex causae must determine the size of the claim that the plaintiff seeks to assert.144 There is also some vague, but not convincing, authority for the proposition that the law of the forum determines whether the defendant can set off against the plaintiff a debt owed by a third party, such as an agent of the plaintiff, to the defendant.145 However, on principle this ought to be regarded as a matter of substance since in effect the question is whether the principal is liable for the debts of the agent.146

The Mode of Judgment and Execution 16.48 It is obvious that judgment must take such form as is prescribed by the law of the forum.147 So far as execution of the judgment is concerned, it was held in De la [page 401] Vega v Vianna148 that a foreigner could arrest another for debt in England (a method of execution then permitted by English law) even though the debt was incurred in Portugal where the law did not allow that remedy. Conversely, Australian courts will refuse to grant execution of a judgment in a manner not permitted by the law of the forum, even though it was appropriate under the law governing the obligation.149 ____________________ 1.

(1835) 2 Bing NC 202 at 210; 132 ER 80 at 83.

2.

McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1.

3.

[1981] Ch 105 at 124.

4.

(2008) 250 ALR 682 at 705, citing W W Cook, The Logical and Legal Bases of the Conflict of Laws, Harvard University Press, Cambridge, 1942, p 166.

5.

(2000) 203 CLR 503 at 543–4; 172 ALR 625 at 651, at [99] citing McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 26–7 per Mason CJ.

6.

(2006) 66 NSWLR 48; 230 ALR 156. Hamilton was followed in Hodgson v Dimbola Pty Ltd t/as Towers Removals [2009] ACTSC 59.

7.

Personal Injuries Proceedings Act 2002 (Qld) s 7(1). Of course, Queensland courts must treat the notice and compulsory conference requirements as substantive because of this provision and must therefore find them not to be applicable to actions based on torts committed in other jurisdictions, or where action is brought in another Australian jurisdiction, regardless of what that other jurisdiction might think: Zanatta v Netpro Employees Pty Ltd [2004] QSC 131; RACQ Insurance Ltd v Wilkins [2010] 2 Qd R 552; Martens v Stokes (2012) 287 ALR 779.

8.

(2008) 250 ALR 682.

9.

See note 8 above, at 715, at [153] per Campbell JA (with whom Hodgson JA agreed).

10. McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 44 per Brennan, Dawson, Toohey and McHugh JJ; Stevens v Head (1992) 176 CLR 433 at 457 per Brennan, Dawson, Toohey and McHugh JJ. 11. W W Cook, The Logical and Legal Bases of the Conflict of Laws, Harvard University Press, Cambridge, 1942, Ch 6. 12. Cook, note 11 above, p 166. 13. D F Cavers, The Choice-of-Law Process, University of Michigan Press, Ann Arbor, 1965, pp 279–89. 14. See Chapter 6. 15. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 544; 172 ALR 625 at 651, at [100] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 16. See note 15 above. 17. Limitation Act 1985 (ACT) ss 55–57; Choice of Law (Limitation Periods) Act 1993 (NSW); Choice of Law (Limitation Periods) Act 1994 (NT); Choice of Law (Limitation Periods) Act 1996 (Qld); Limitation of Actions Act 1936 (SA) s 38A; Limitation Act 1974 (Tas) ss 32A–D; Choice of Law (Limitation Periods) Act 1993 (Vic); Choice of Law (Limitation Periods) Act 1994 (WA); Limitation Act 1950 (NZ) s 28C (applying to Australia and the United Kingdom). 18. (2000) 203 CLR 503; 172 ALR 625. 19. (1991) 174 CLR 1 at 42–4 per Brennan, Dawson, Toohey and McHugh JJ. 20. ALRC Report No 58, Choice of Law, at [10.33]. 21. See note 17 above. 22. ACT: s 56; NT: s 5; NSW: s 5; Qld: s 5; SA: s 38A(2); Tas: s 32C; Vic: s 5; WA: s 5. 23. ACT: s 57; NT: s 6; NSW: s 6; Qld: s 6; SA: s 38A(3); Tas: s 32D; Vic: s 6; WA: s 6. See Berriman v Cricket Australia (2007) 17 VR 528 at 534–5, at [25]–[27] per Forrest J; Town of Kwinana v Vidovich (2004) 29 WAR 211 at [14] per Templeman J; Wall v Toll Transport Pty Ltd [2010] VSC 522. 24. See note 23 above. 25. Foreign Limitation Periods Act 1984 (United Kingdom). The equivalent legislation in New Zealand does extend to the United Kingdom: see Limitation Act 1950 (NZ) s 28C. 26. (1991) 174 CLR 1 at 42–4 per Brennan, Dawson, Toohey and McHugh JJ. 27. (2000) 203 CLR 503 at 542–3; 172 ALR 625 at 650, at [97]. 28. See note 27 at 543–4 (CLR); 651 (ALR) at [99], [100]. 29. O’Driscoll v J Ray McDermott SA [2006] WASCA 25 (applying Singaporean limitation law to action brought in Western Australia). See also Neufeld v Oz-US Film Productions Pty Ltd [2002] NSWCA 335

at [19] per Hodgson JA; Garsec v Sultan of Brunei (2008) 250 ALR 682 at [142] per Campbell JA (with whom Hodgson JA agreed); Fleming v Marshall (2011) 279 ALR 737 at 747, [46] per Macfarlan JA (New York limitation law would apply to action brought under New York law in New South Wales). 30. Pedersen v Young (1964) 110 CLR 162 at 166–7 per Menzies J. 31. Beckford v Wade (1805) 17 Ves J 87; 34 ER 34; Re Peat’s Trusts (1869) LR 7 Eq 302. It seems that the same applies to prescriptive rights in chattels: Brent v Chapman, 9 US (5 Cranch) 358 (1809). 32. Australian Iron and Steel v Hoogland (1962) 108 CLR 471 at 488 per Windeyer J; Commonwealth v Verwayen (1990) 170 CLR 394 at 497 per McHugh J; McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 43 per Brennan, Dawson, Toohey and McHugh JJ; Rudolphy v Lightfoot (1999) 197 CLR 500 at 507–8 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. See also Rahman v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 448 at 450 per Hill, Tamberlin and Emmett JJ; Burns v Minister for Health [2012] WASCA 267 at [47] per Pullin JA. 33. (1990) 19 NSWLR 13 at 28 per Mahoney JA, at 39 per Hope AJA. 34. Livesley v Horst [1925] 1 DLR l59 at 161 per Duff J; Breavington v Godleman (1988) 169 CLR 41; Stevens v Head (1992) 176 CLR 433. 35. D’ Almeida Araujo Lda v Sir Frederick Becker & Co Ltd [1953] 2 QB 329 at 336; Stevens v Head (1992) 176 CLR 433 at 457; 112 ALR 7 at 23 per Brennan, Dawson, Toohey and McHugh JJ. 36. (1992) 176 CLR 433; 112 ALR 7. 37. See note 36 above, at 459 (CLR); 25 (ALR) per Brennan, Dawson, Toohey and McHugh JJ. 38. See note 36 above, at 457 (CLR); 23 (ALR) per Brennan, Dawson, Toohey and McHugh JJ. 39. (2000) 203 CLR 503; 172 ALR 625. 40. (2000) 203 CLR 503 at 543–4 (CLR); 651 (ALR) at [100] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 41. (2002) 210 CLR 491 at 521; 187 ALR 1 at 21, [76] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. See also Mills v Commonwealth (2003) Aust Torts Reports ¶81-714 at [33] per Malpass M (reserving the question whether assessment of damages should be done by the lex causae, Cambodian law). 42. See, for example, Fuller v K & J Trucks Coffs Harbour Pty Ltd (2006) 67 NSWLR 516 at 525, at [34] per Bryson JA; O’Driscoll v J Ray McDermott SA [2006] WASCA 25 at [35] per Murray AJA; Lewincamp v ACP Magazines Ltd [2008] ACTSC 69 at [134] per Besanko J; Frost v Bankstown Wiley Park Motor Cycle Club Inc [2008] ACTSC 104 at [7] per Harper M (‘common practice’ of suing in Australian Capital Territory to avoid statutory limits on damages in New South Wales ‘relatively rare’ since Stevens v Head was ‘overruled’ in John Pfeiffer); Hodgson v Dimbola Pty Ltd t/as Towers Removals [2009] ACTSC 59 at [18]–[19] per Harper M. 43. [1976] 2 NSWLR 192. 44. [1924] SCR 605; [1925] 1 DLR 159. 45. See, for example, Transport Accident Act 1993 (Vic) s 93(20). 46. Martin v Kelly (1995) 22 MVR 115; Rahim v Crawther (1996) 17 WAR 559. See also Nalpantidis v Stark (1996) 65 SASR 454. 47. (1995) 38 NSWLR 714. The Victorian Court of Appeal took the same view of s 93 in Wilson v Nattrass (1995) 21 MVR 41. See also England v Sontrop (1999) 20 Qld Lawyer Reps 88. 48. (1998) 43 NSWLR 554. 49. See 16.3.

50. (1850) HL Cas 1 at 19. 51. Mahadervan v Mahadervan [1964] P 233 at 243 per Sir Jocelyn Simon P. 52. Regulation (EC) No 593/2008. 53. Regulation (EC) No 864/2007. 54. Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell Ltd, London, 2012, pp 205, 1795, 1850–1; R Garnett, Substance and Procedure in Private International Law, Oxford University Press, Oxford, 2012, pp 189–90. 55. Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell Ltd, London, 2012, p 212. 56. (1882) 7 PD 137. 57. Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 347–8; 41 ALR 367 at 371 per Mason J (Stephen and Wilson JJ agreeing). 58. Restatement (Second) on Contracts § 213 comment (‘[T]he parol evidence rule … is not a rule of evidence but a rule of substantive law. Nor is it a rule of interpretation; it defines the subject matter of interpretation’). See, for example, Petereit v S B Thomas Inc, 63 F3d 1169, 1177 (2d Cir 1995). 59. [1950] 2?KB 128 (affirmed on other grounds as Vitkovice Horni A Hutni Tezirstvo v Korner [1951] AC 869). 60. See note 59 above, at 163. 61. (2010) 243 FLR 423 at 434, [69]. 62. See note 61 above, at 434–5, [71]. 63. Chappel v Hart (1998) 195 CLR 232; 156 ALR 517; Rosenberg v Percival (2001) 205 CLR 434; 178 ALR 577. 64. See, for example, Rosenberg v Percival (2001) 205 CLR 434 at 443; 178 ALR 577 at 582 per McHugh J: ‘ The test is a subjective test. It is not decisive that a reasonable person would or would not have undertaken the surgery’. 65. Civil Liability Act 2002 (NSW) s 5D(3)(a); Civil Liability Act 2003 (Qld) s 11(3)(a); Civil Liability Act 2002 (Tas) s 13(3)(a); Civil Liability Act 2002 (WA) s 5C(3)(a). 66. Civil Liability Act 2002 (NSW) s 5D(3)(b); Civil Liability Act 2003 (Qld) s 11(3)(b); Civil Liability Act 2002 (Tas) s 13(3)(b); Civil Liability Act 2002 (WA) s 5C(3)(b). 67. See note 65 above. 68. (1852) 12 CB 801; 138 ER 1119. 69. Re Ovens and King Traders Pty Ltd [1949] VLR 16 at 20 per Fullagar J. In G & H Montage GmbH v Irvani [1990] 2 All ER 225 at 239, Mustill LJ described this rule as ‘unassailable’. 70. (2009) 38 WAR 488; 258 ALR 124. 71. See note 70 at ALR 146, [81]. 72. (1993) 119 ALR 538. 73. The court held that the deed was governed by Queensland law. It considered as an alternative what would be the outcome if that conclusion were incorrect and the contract were to be governed by Western Australian law. 74. See note 72 above, at 546, referring to Stamp Act 1898 (Qld) s 22(5). 75. See note 72 above, at 552. 76. Stamp Act 1921 (WA) s 27(1).

77. See R Garnett, Substance and Procedure in Private International Law, Oxford University Press, Oxford, 2012, pp 192–4, calling for ‘a more sophisticated choice of law approach’ than that represented by the Rothwells decision. 78. (2008) 74 NSWLR 218. 79. (2012) 206 FCR 347; 294 ALR 505. 80. R Garnett, Substance and Procedure in Private International Law, Oxford University Press, Oxford, 2012, p 236. 81. (2008) 74 NSWLR 218 at 222. 82. (2012) 206 FCR 347; 294 ALR 505 at 521, [77], per Jagot and Bromberg JJ. 83. [2011] 2 AC 338. 84. (1937) 58 Ll L R 159 at 177. 85. A A Ehrenzweig, Treatise on the Conflict of Laws, West Publishing Co Inc, New York, 1962, p 355. 86. [1968] P 675 at 698. 87. M Wolff, Private International Law, 2nd ed, Clarendon Press, Oxford, 1950, p 234; A Briggs, The Conflict of Laws, 2nd ed, Clarendon Press, Oxford, 2002, p 234. 88. See Briggs, note 87 above. 89. See, for example, Fiona Trust and Holding Corp v Privalov [2010] EWHC 3199 (Comm) at [94] per Andrew Smith J, stating that although the burden of proof is generally regarded as a procedural matter determined by the lex fori, an English court should nevertheless give effect to an express provision of the lex causae, Russian law, reversing the burden of proof and placing it on the defendant. 90. Civil Law (Wrongs) Act 2002 (ACT) s 95(1), (2) (plaintiff to show no contribution to the accident, a significant difference from the other jurisdictions); Civil Liability Act 2002 (NSW) s 50(1), (3); Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 14; Civil Liability Act 2003 (Qld) s 47(1)–(3); Civil Liability Act 1936 (SA) s 46(1), (2); Civil Liability Act 2002 (Tas) s 5(1), (4); Civil Liability Act 2002 (WA) s 5L(1)–(3). In each jurisdiction except New South Wales the presumption can also be rebutted by proof that the intoxication was not self-induced. 91. SS Fortunato Figari v SS Coogee (1904) 29 VLR 874 at 900 per Madden CJ. 92. (1980) 146 CLR 40 at 478; 29 ALR 217 at 221 per Mason J. 93. Civil Law (Wrongs) Act 2002 (ACT) s 43(1)(b); Civil Liability Act 2002 (NSW) s 5B(1)(b); Civil Liability Act 2003 (Qld) s 9(1)(b); Civil Liability Act 1936 (SA) s 32(1)(b); Civil Liability Act 2002 (Tas) s 11(1)(b); Wrongs Act 1958 (Vic) s 48(1)(b); Civil Liability Act 2002 (WA) s 5B(1)(b). See B McDonald, ‘ The Impact of the Civil Liability Legislation on Fundamental Policies and Principles of the Common Law’ (2006) 14 TLJ 268. 94. M Davies, ‘Choice of Law after the Civil Liability Legislation’ (2008) 17 TLJ 104. 95. Civil Law (Wrongs) Act 2002 (ACT) Ch 7A; Civil Liability Act 2002 (NSW) Pt 4; Proportionate Liability Act 2005 (NT) Pt 2; Civil Liability Act 2003 (Qld) Ch 2 Pt 2; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) Pt 3; Civil Liability Act 2002 (Tas) Pt 9A; Wrongs Act 1958 (Vic) Pt IVAA; Civil Liability Act 2002 (WA) Pt 1?F. 96. Civil Law (Wrongs) Act 2002 (ACT) s 107?F(1)(a); Civil Liability Act 2002 (NSW) s 35(1)(a); Proportionate Liability Act 2005 (NT) s 13(1)(a); Civil Liability Act 2003 (Qld) s 31(1)(a) (‘just and equitable’); Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 8(2)(a) (‘fair and equitable’); Civil Liability Act 2002 (Tas) s 43B(1)(a); Wrongs Act 1958 (Vic) s 24AI(1)(a); Civil Liability Act 2002 (WA) s 5AK(1)(a). 97. Civil Liability Act 2002 (Tas) s 43B(3)(b); Civil Liability Act 2002 (WA) s 5AK(3)(b).

98. As Victoria has. Wrongs Act 1958 (Vic) s 24AI(3) provides that the court must not consider the comparative responsibility of a person who is not a party to the proceeding unless that person is dead or, if a corporation, wound up. 99. Civil Liability Act 2002 (NSW) s 5Q(1); Wrongs Act 1958 (Vic) s 61(1). 100. See Commonwealth of Australia, Review of the Law of Negligence: Final Report, Canberra, 2002 (Ipp Panel Report), Recommendation 43. The report gives the example of a person injured by the negligence of an independent contractor suing the ‘employer’ of the negligent contractor, alleging breach of a non-delegable duty: at 11.14. The legislation would apply to the action against the negligent independent contractor but not the defendant. The legislation under consideration implements Recommendation 43, which was designed to remove that possibility. 101. Jacombe v Jacombe (1961) 105 CLR 355; Sheludko v Sheludko [1972] VR 82; Kousal v Tack (2002) 30 Fam LR 581; Oltman v Harper (No 2) [2009] FamCA 1360. Compare Lester v Lester (2007) 36 Fam LR 488 (evidence of long cohabitation but no evidence of any marriage ceremony or community acceptance of parties as being married; insufficient to establish presumption). For a full discussion, see Ng Ping On v Ng Choy Fung Kam (1963) 63 SR (NSW) 782 at 787–92 per Sugerman J. 102. Hill v Hibbit (1870) 25 LT 183; De Thoren v Attorney-General (1876) 1 App Cas 686. 103. [1964] P 233. 104. Bumper Development Corp v Commr of Police of the Metropolis [1991] 4 All ER 638 at 646 per Purchas LJ. 105. Henriques v General Privileged Dutch Co Trading to the West Indies (1728) 2 Ld Raym 1532; 92 ER 494; Newby v Van Oppen (1872) LR 7 QBD 293; Lazard Bros & Co v Midland Bank Ltd [1933] AC 289. 106. Chaff and Hay Acquisition Committee v JA Hemphill & Sons Pty Ltd (1947) 74 CLR 375; International Association of Science and Technology for Development v Hamza (1995) 122 DLR (4th) 92. 107. Bumper Development Corp v Commr of Police of the Metropolis [1991] 4 All ER 638. 108. Didisheim v London and Westminster Bank [1900] 2 Ch 45. 109. Oxnard Financing SA v Rahn [1998] 1 WLR 1465 (CA). 110. Marks v Casey (1890) 7 WN (NSW) 35 at 36. 111. Didisheim v London and Westminster Bank [1900] 2 Ch 45. 112. Re Young (dec’d) [1955] St R Qd 254; White v Verkouille [1990] 2 Qd R 191. 113. Re Anderson [1911] 1 KB 896. 114. White v Verkouille [1990] 2 Qd R 191 at 195 per McPherson J; Davis v Turning Properties Pty Ltd (2005) 222 ALR 676; Independent Trustee Services Ltd v Morris (2010) 79 NSWLR 425 at 430–1, [33]–[35] per Bryson AJ. 115. Electronic Industries Imports Pty Ltd v Public Curator of Queensland [1960] VR 10; Commissioner of Succession Duty v Hargrave (1972) 3 SASR 118; L’ Abbate v Collins & Davey Motors Pty Ltd [1982] VR 28. See Chapter 38. 116. See note 115. 117. [1980] QB 199. 118. Anderson v Johnson (1877) 1 Knox (NSW) 1. 119. O’Callaghan v Thomond (Marchioness) (1810) 3 Taunt 82; 128 ER 33. 120. Subbotovsky v Waung (1968) 72 SR (NSW) 242 at 255 per Sugerman JA.

Re Doetsch [1896] 2 Ch 836; Johnson Matthey & Wallace Ltd v Ahmad Alloush (1984) 135 NLJ 1012 121. (CA). 122. Garnett, Substance and Procedure in Private International Law, Oxford University Press, Oxford, 2012, p 133. 123. Ex parte Melbourn (1870) LR 6 Ch App 64. 124. Cook v Gregson (1854) 2 Drew 286; 61 ER 729. 125. The Colorado [1923] P 102 at 109 per Scrutton LJ. 126. Bankers Trust International Ltd v Todd Shipyard Corp (The Halcyon Isle) [1981] AC 221. 127. [1981] AC 221 at 238–9 (Lords Diplock, Elwyn-Jones and Lane, Lords Salmon and Scarman dissenting). 128. Morlines Maritime Agency Ltd v M/V Skulptor Vuchetich [1997] FCA 432. The Halcyon Isle has also been followed in New Zealand (The Betty Ott v General Bills Ltd [1992] 1 NZLR 655; ABC Shipbrokers v The OffiGloria [1993] 3 NZLR 576; Fournier v The Margaret Z [1999] 3 NZLR 111) and South Africa (The Andrico Unity 1989 (4) SA 325). 129. M Davies and K Lewins, ‘Foreign Maritime Liens: Should They Be Recognised in Australian Courts?’ (2002) 76 ALJ 775. 130. Todd Shipyards Corp v Altema Compania Maritima SA: The Ioannis Daskalelis [1974] SCR 1248; Marlex Petroleum Inc v Har Rai [1987] 1 SCR 57. 131. Personal Property Securities Act 2009 (Cth), s 238(1A). 132. See note 131, s 239(2). 133. See note 131, s 240(4). 134. See note 131, s 77(3). 135. General Steam Navigation Co v Guillou (1843) 11?M & W 877 at 895; 152 ER 1061 at 1069. 136. Baschet v London Illustrated Standard Co [1900] 1 Ch 73. 137. [1960] 2 QB 19 at 35–6. 138. See note 137 above, at 35. 139. Kornatzki v Oppenheimer [1973] 4 All ER 133. 140. Phrantzes v Argenti [1960] 2 QB 19 at 34–5 per Lord Parker CJ; Re Paulin [1950] VLR 462 at 465 per Sholl J; Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; 221 ALR 213. It seems that if the exercise of discretion follows a discernible pattern or manner, evidence is admissible as to the manner in which the discretion is to be exercised as a matter of fact: National Mutual Holdings Pty Ltd v Sentry Corp (1989) 87 ALR 539 at 556 per Gummow J; Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 at 342–3; 221 ALR 213 at 218, at [15] per Gleeson CJ. 141. (2005) 223 CLR 331 at 392–3; 221 ALR 213 at 260, at [191] per Kirby J. 142. Wolff, note 87 above, 1950, pp 233–4. 143. Meyer v Dresser (1864) 16 CB(NS) 646; 143 ER 1280. 144. Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell Ltd, London, 2012, p 210. 145. Maspons v Mildred, Goyeneche & Co (1882) 9 QBD 530 at 543. However, in this case both the lex fori and the lex causae were English. 146. Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell Ltd, London, 2012, pp

219–20. 147. White v White [1974] VLR 434; Thornton v Thornton (1947) 65 WN (NSW) 87. 148. (1830) 1 B & Ad 284; 109 ER 792. 149. Smith v Cotton (1926) 27 SR (NSW) 41.

[page 402]

Chapter 17

The Pleading and Proof of Foreign Law Introduction 17.1 That a matter or issue may be governed by foreign law will generally only assume forensic and practical significance in circumstances where the application of that law to the facts of the case would produce a different result or outcome than would be produced if the law of the forum were to apply. An example might be a foreign statutory provision imposing strict liability in circumstances where the law of the forum required the proof of fault. Accordingly, it is important to understand in any case what the content of the governing or applicable law is. This will be a function of, first, characterising the issue; second, identifying the applicable (common law or statutory) choice-oflaw rule; and, third, identifying what that law is in any given case.1 If the content of that law, once ascertained, does or may differ from the local or forum law in such a way that would favour one party to the litigation, then it will be in the interests of that party to introduce the foreign law into the litigation. This requires the foreign law to be both pleaded and proved.2 As was observed in Regie Nationale des Usines Renault SA v Zhang: ‘… proof of foreign law is concomitant of reliance upon any choice-of-law rule which selects a nonAustralian lex causae’.3 17.2 It should be noted that it is not necessarily the plaintiff or moving party that will have an interest in pleading the foreign law. Indeed, a plaintiff may have a positive interest in not alleging or proving foreign law and, in this context, the presumption that foreign law is the same as that of the forum, and the evidentiary onus cast upon a party seeking to displace the presumption, may operate as an inducement to

[page 403] forum shopping.4 In light of the three considerations listed below, the party seeking to take advantage of some limitation or defence embedded in the foreign law at a final hearing will frequently be the defendant or respondent to proceedings:5 the practical difficulty of obtaining a stay of proceedings in Australia on ‘clearly inappropriate forum’ grounds,6 even in circumstances where the cause of action is governed by foreign law;7 the apparent narrowing of the ambit of conceptions as to what is procedural and thus for the law of the forum as opposed to the law of the cause;8 and the revivification of the renvoi doctrine.9 As such, foreign law may be pleaded and proved by a defendant as an exculpatory fact.10 17.3 The application or potential application of foreign law, and the content of that law, may also assume significance in the context of interlocutory applications for a stay of proceedings or an anti-suit injunction.11 Thus, the governing law has been identified as a very important factor to be taken into account when an Australian court is called upon to stay local proceedings by reference to the ‘clearly inappropriate’ forum test enunciated in Voth v Manildra Flour Mills Pty Ltd12 although it has been held that the identification of foreign law as the governing law will never, in and of itself, be sufficient to cause an Australian court to decline to exercise jurisdiction.13 This is perhaps especially so where there is no evidence or suggestion that the application of foreign law would give rise to any particular difficulty in the hearing of the case in Australia.14 If the party that applied for a stay can demonstrate that the matter is governed by foreign law, and (perhaps) that the application of that foreign law by an Australian court would or may work some prejudice to the party seeking a stay of proceedings (invariably the defendant), for example, because of cost, or difficulty of translation, then those facts may combine, together with other [page 404]

factors, to render the Australian court a ‘clearly inappropriate’ forum.15 The very need to prove foreign law introduces additional levels of complexity, expense and uncertainty together with the risk of error in the application of foreign law and/ or the risk that important aspects of the foreign law may be lost in translation,16 a matter that has been referred to as an acontextual interpretation of the foreign law.17 In the same context it has been said that: The process of statutory construction of domestic enactments frequently requires a detailed understanding of the meaning of words of our own native tongue and the discernment of subtle nuances of language in order to ascertain the legislative intention of a provision. The quality and accuracy of translation of statutory provisions, however good, may not always succeed in communicating to a foreign reader the precise legal meaning of the text of a statute.18

Where the claim is one in tort where, as shall be seen,19 the Australian choiceof-law rule looks to the law of the place of the wrong, any doubt or uncertainty as to the place of the wrong — and it may be difficult to locate the place of the wrong in the case of a transnational tort — will at the very least diminish the potential significance of the fact that the matter may be governed by foreign law in the context of a stay application.20 17.4 Foreign law, if it is to be relied upon, must be pleaded with particularity by the party seeking to take advantage of it in the proceedings.21 A typical pleading would contain an introductory averment that the issue or claim was governed by the law of the relevant foreign country, and then plead the propositions of foreign law relied upon, particularising them by reference to any statutory provision relied upon and/or in circumstances where judge made law is relevant (such as where the foreign law involved is that of a common law system), current and authoritative case law.22 Where a party does not wish to invoke or rely on foreign law, however, it is not necessary for it to do so even if, for example, the dispute is contractual in nature and the contract in question contains a foreign law clause. Where, however, questions involving foreign law may arise incidentally in the course of litigation as, for example, where it may be relevant to establish that a contract is illegal in the place where it is to be performed, and thus should not be enforced as a matter of Australian public policy, ordinary rules of pleading relating to the need to plead material facts in order to eliminate surprise and trial by ambush may need to be observed.23 [page 405]

Foreign Law Must be Proved as a Fact 17.5 Foreign law is treated by Australian courts as a question of fact, not of law.24 This has at least five important results. In the first place, it means that an earlier decision of a court of the forum on the content and meaning of a particular foreign law is not binding upon that court when it has to consider the same law on a subsequent occasion.25 In each case findings by the court as to the foreign law depend on the evidence of that law which has been placed before it. Accordingly, it is quite possible that the court will construe the same law differently on separate occasions.26 It may be, however, that an earlier finding by a court of the forum as to the content and meaning of a particular rule of foreign law can be relied upon subsequently as prima facie evidence of that law, where direct expert evidence is lacking.27 On the other hand, it has been stated on several occasions that the foreign law must be proved anew in each case.28 17.6 Second, the principle that foreign law is a question of fact also means that a decision by a court of the country from which the law is taken which purports to construe and explain that law cannot be regarded as conclusively binding on the courts of the forum. If it is the decision of a subordinate court, it will be regarded as merely the ‘opinion of an expert on the fact to be treated with respect, but not necessarily conclusive’.29 However, a decision of the highest appellate tribunal of the foreign country which would be followed by other courts in that country must be regarded as presenting a correct exposition of the law in that country in all but the most extreme circumstances. As Lord Reid said in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2):30 According to the commonly accepted doctrine of private international law, the courts of one State or jurisdiction cannot of their own knowledge determine what is the law in a different State or jurisdiction. That has to be proved by evidence and, if it is clear … that all courts in one State or jurisdiction have decided and will decide a particular question in one way, the courts of another State or jurisdiction have no right to decide that that question ought to have been decided in a different way.

17.7 Third, although a question of foreign law is a question of fact, it is ‘a question of fact of a peculiar kind’.31 The Commonwealth and each of the Australian states [page 406] except Queensland have enacted legislation providing that an issue of foreign

law in a case which is being tried by a jury is a question of fact to be decided by the judge and not by the jury.32 A decision on an issue of foreign law by an inferior court, particularly by a magisterial court, cannot be treated on appeal as if it were a conclusion of ordinary fact. The appellate court has a far greater freedom to interfere with the decision of the lower court on the issue of foreign law than it has with decisions by inferior courts on other issues of fact,33 as represented, for example, by a liberal attitude to the receipt of fresh evidence of foreign law on appeal, including when identified by the court and not the parties.34 It is the duty of an appeal court to examine the evidence of foreign law and to decide for itself whether that evidence justified the conclusion to which the trial judge came.35 17.8 Fourth, a distinction must also be drawn between the content of foreign law, which is a question of fact on which evidence is receivable, and the application of that foreign law, once its content has been ascertained, to the facts of the instant case. The latter is a matter for the forum to determine.36 As it has been succinctly put:“‘Content evidence’ is admissible.‘Application evidence’ is not.”37 The principle often associated with this view is that, while expert evidence of foreign law may be given, such evidence is not admissible to the extent that it extends to an expression of opinion as to how the foreign law would be applied to the facts of the instant case.38 If the foreign law confers a discretion upon its courts, evidence is receivable as to the manner in which that discretion is exercised, with reference to any pattern or course of decision,39 but not with respect to how it would be exercised on the facts of the case at hand.40 17.9 A fifth consequence of the fact that foreign law is a question of fact and not of law is that, where an appeal is only available on a question of law (such as, for example, under s 38(2) of the uniform commercial arbitration legislation), [page 407] or judicial review is similarly so constrained by statute (such as by, for example, s 476(1)(e) of the Migration Act 1958 (Cth)), where the arbitral or tribunal hearing has involved a question of foreign law, no appeal will lie or judicial review will be available by reference to any error in the identification or application of such foreign law because it will be regarded as involving a matter of fact and not law.41

The Manner of Proving Foreign Law Pursuant to statute 17.10 Reforms introduced by the uniform Evidence Act which was adopted in 1995 by the Commonwealth and New South Wales, in 2001 by Tasmania and in 2008 by Victoria, have facilitated the means of proof of foreign law which was traditionally required to be proved by means of expert testimony. Section 174 of the Evidence Act provides that foreign statutes (including regulations and bylaws), proclamations, treaties or acts of state may be proved by tendering copies or books or pamphlets containing such documents. Section 175 of the Act permits the unwritten or common law of a foreign country, including the law as to the interpretation of a foreign statute, to be adduced by producing a book containing reports of judgments of the courts of the foreign country if the book is or would be used in the foreign country to inform the courts about unwritten or common law, including the common law as to and of interpretation.42 In some cases, it may be necessary to lead some expert evidence as to the use of the book(s) tendered for the purpose contemplated by s 175 while in others, where an Australian court is familiar with the foreign law report in question, judicial notice may be taken as to the use in the foreign court43 of statutes or law reports as evidence of the law of the country to which they relate.44 17.11 There is similar, more restricted, legislation in all other jurisdictions. Thus, South Australian and Western Australian legislation provides first for the admission, upon production, of books of statutes, ordinances or other written laws purporting to have been published under the authority of the government of a foreign country [page 408] as prima facie evidence of such laws. Second, courts may refer to printed books containing statutes and other written laws, even though not published by authority; to books containing reports of decisions; and to treatises as aids for ascertaining the law of a foreign country with the proviso, however, that the courts shall not be bound to accept or act upon the statements in any such books as evidence of such laws.45

17.12 The provision for admission of unofficial material should be liberally interpreted as extending to all material published primarily for professional use. In Mong Kuen Wong v May Wong46 Fair J admitted, under a similar New Zealand provision, an English translation of the Chinese Civil Code made by qualified translators and introduced by the Chairman of the Chinese Civil Codification Commission. 17.13 The provisions of the Evidence Act 1939 (NT) are somewhat narrower in scope. Section 63 permits the admission, as evidence of the written laws of a foreign country, of a copy of such laws contained in a volume published by government authority or admissible in the courts of that country. The unwritten law of a foreign country may be proved by producing the authorised reports of cases decided by the courts of that country. The Evidence Act 1977 (Qld) s 68 makes provision only for the proof of the statutory law of an overseas country by the production of an official copy, a book published by authority or any publication which appears to be a reliable source of authority or is admissible in evidence in the courts of the foreign country. 17.14 It has been held that the term ‘written laws’ includes statutory regulations and orders.47 It was also held in the early New South Wales case of Homeward Bound GM Co (N/L) v McPherson48 that the provisions enabling evidence to be brought of unwritten laws related only to non-statutory law with the result that reports of decided cases were inadmissible to prove how a statute which had been placed in evidence under the Act had been interpreted by the foreign courts.49 This interpretation seems unduly restrictive and even if consonant with the letter, hardly in accordance with the spirit of the enactment. 17.15 The parties may agree that a particular text represents the law of a foreign country without calling evidence from an expert witness to verify that fact or to explain its meaning.50 If the text of a foreign code or statute is placed in evidence [page 409] without calling expert evidence to explain it, the court will construe the code or statute according to the rules of statutory construction of the forum.51 Where a defendant tenders provisions of foreign statutes unaccompanied by expert evidence, that does not result in the imposition of an evidentiary onus on the plaintiff, and the defendant’s failure to call expert evidence may, in the

circumstances, generate an inference that it would not have assisted.52 17.16 One further important point to be made in respect of the statutory facilitation of proof of foreign law relates to the law of New Zealand. In short, proof of the provisions of a New Zealand Act, regulation, rule, by-law, proclamation or instrument is not required in an Australian court, and a judge may inform him or herself about those matters in any way thought fit.53

By expert evidence 17.17 Even though provisions such as s 175 of the Evidence Act facilitate proof of foreign statutes and regulations, it may in certain cases be necessary to supplement the tender of such material with some short expert evidence as to currency of the statute as, for example, when it was passed at some point in time much earlier than the events in question in the case.54 17.18 Unless authorised to do so by statutory provisions of the kind already mentioned, the court is not entitled to make its own investigation of the foreign law on the basis of the authorised publications of the statutes and court reports of the foreign country or by referring to treatises dealing with the law of that country. The court can only act upon the evidence of the foreign law which an expert witness places before it. As Lord Wright explained in Lazard Bros & Co v Midland Bank Ltd:55 The evidence it is clear must be that of qualified experts in the foreign law. If the law is contained in a code or written form, the question is not as to the language of the written law, but what the law is as shown by its exposition, interpretation and adjudication.

17.19 The expert’s evidence may be given orally or by affidavit. In some rare cases the courts have accepted a certificate signed by an expert.56 If the evidence is given orally, the witness need not, of course, speak from memory, but may refresh his or her memory by referring to textbooks and other sources of the foreign law.57 17.20 The witness may also incorporate in the evidence extracts from the relevant texts, reported decisions and statutes on which the opinion is based. But it is not in any way necessary that the actual source material relied upon should be placed [page 410]

before the court. ‘Failure to produce a relevant code, or statute, if the subject matter is governed by code or statute, may, no doubt, affect the weight which the tribunal is prepared to attach to the evidence which is given, but it does not affect its admissibility’.58 17.21 Where the foreign law is contained in a code or statute that is put in evidence by an expert witness, the witness must also give evidence as to the meaning that the provision of the code or statute bears under the foreign law. Normally the court is not entitled to place its own interpretation upon the statute59 but an exception to this proposition exists in circumstances where the expert evidence falls short in assisting the court60 or, indeed, where there is no expert evidence.61

Who is an expert? 17.22 Before the evidence can be accepted, it must be shown that the witness ‘is a person who, by reason of his being generally skilled in the law of the foreign country, may be expected to know the answer to the particular question upon which information is sought’.62 In cases where the uniform Evidence Act applies,63 a foreign law expert will need to have ‘specialised knowledge based on the person’s training, study or experience’64 in order to express an opinion on the content of foreign law, these being the criteria for the admission of expert opinion evidence under s 79 of that legislation. 17.23 The best evidence, of course, is that given by a person who has recently practised as a lawyer in the foreign country concerned.65 There are old authorities to the effect that the mere fact that a person has studied the law of a foreign country is, generally speaking, not sufficient to qualify him or her as an expert on the law of the country if that person has not practised or resided in that country (although these authorities need to be revisited at least in cases to which the uniform Evidence Act applies).66 A long absence from the country in which he or she once practised law may also disqualify a witness.67 However, these are not hard and fast rules and the courts have been willing to make exceptions where better evidence was difficult or costly to obtain. [page 411] 17.24 Thus, a lawyer has been permitted to testify as to the law of a

neighbouring country with a similar legal system.68 A member of Doctors’ Commons who had made frequent study of the law of Malta was permitted to give evidence of the law though he was not qualified as a Maltese lawyer.69 A reader in Roman Dutch law at the Council of Legal Education in London was permitted to give evidence about the law of Rhodesia, though he had never been there.70 But a person who was not admitted as a lawyer in Liechtenstein, had never practised there nor undertaken any formal courses in its law was not allowed to give expert evidence in Clyne v Federal Commissioner of Taxation (No 2).71 17.25 The witness need not be a lawyer, but may have acquired a special knowledge of a particular aspect of foreign law by virtue of an office or profession. Thus, consular and diplomatic officials have been allowed to testify as to the law of their countries upon showing that their duties involved the interpretation and administration of that law.72 17.26 A bishop of the Roman Catholic Church who had the duty of administering in England the canon law of that church relating to marriages was permitted to give evidence of the law of the Papal States where canon law was the law of the land.73 On a humbler level, clerics who had been in charge of the keeping of marriage registers in foreign countries have been held competent to give evidence whether a marriage certificate is acceptable to the courts of the country where they held office.74 But the mere fact that a cleric has performed the same marriage ceremony many times over in a particular country does not make him or her competent to testify that it constitutes a lawful marriage in that country.75 17.27 Business people have been held competent to testify concerning the mercantile law of the country in which they carried on business.76 At times, indeed, their evidence has been preferred over that of a lawyer who had practised law in that country.77 A banker whose duties involved the exchange and sale of the currency of a neighbouring country has been permitted to give evidence as to the currency laws of that country.78 In a very special case, a former governor of Hong Kong was allowed to give evidence concerning the laws of that colony.79 But the mere fact that someone has lived for a long time in a particular country is not enough if that person was not [page 412]

engaged in an occupation which required some acquaintance with the law of that country.80 17.28 It is clear from these cases that the courts have adopted a flexible approach which balances the desire to obtain the best possible evidence against the equally commendable desire not to involve the parties in unnecessary expense or delay.

By reference out 17.29 In New South Wales, it has been expressly contemplated that questions of foreign law may, in appropriate cases, be referred for determination by a referee from the relevant foreign law jurisdiction.81 Further, Memoranda of Understanding have been entered into between the Supreme Court of New South Wales and the Supreme Courts of New York and Singapore respectively which make provision, in appropriate cases, for judges of those courts to enunciate the content of the particular foreign law.82

The Effect of Evidence of Foreign Law 17.30 Since foreign law is a fact to be proved to the satisfaction of the judge, the ultimate decision as to its meaning and effect remains with the judge. The expert witness informs the judge, but cannot decide the issue.83 Thus, it has been held that expert evidence is inadmissible to the extent that it argues for a particular interpretation of the foreign law.84 Whether or not this remains so in cases decided under the uniform Evidence Act which, in s 80, abolished the ‘ultimate issue’ rule precluding experts’ opinion on such a matter, is debatable.85 17.31 In the case of conflicting evidence, the court must resolve the issue in the same manner as in the case of other conflicting evidence as to facts.86 The court is entitled to test the credibility and expertise of the witnesses. If the evidence put forward by the expert witnesses is ambiguous or contradictory the court may examine for itself the sources of foreign law to which the witnesses have referred in their testimony in order to resolve the ambiguity or conflict.87 As a result of that [page 413]

investigation the court may not only prefer the evidence of one witness over that of another, but reject the evidence of all witnesses and arrive at its own conclusions.88 17.32 Even where the evidence of the witness is uncontradicted the court is not bound to accept it if it is of the opinion that the evidence of the witness is patently absurd or inconsistent.89 Even where the evidence is not contradicted the court may look at the texts on which the witness relied in order to see whether the conclusions are justified. However, the court should be reluctant to reject uncontradicted evidence of foreign law.90 17.33 The court is entitled to look not only at the passages which the witnesses have extracted for the court, but it is also entitled to consider the texts of sections and passages to which the witnesses have referred by number or page reference without setting out the actual text.91 But the court is not entitled (save to a limited extent in the case of New Zealand)92 to go beyond the materials that have been placed before it or have been referred to in the course of evidence,93 although the case law evidences departures from this course.94

Judicial Notice of the Law of Other Australian States and Territories 17.34 Pursuant to s 143(1) of the Evidence Act 1995 (Cth) which applies to proceedings in all Australian courts,95 Australian courts must take judicial notice of any statute and subordinate legislation (including Rules of Court) or proclamations or orders made by the Governor-General or a governor or administrator under such a statute anywhere in Australia. This provision must be read in conjunction with s 185 of the Evidence Act (Cth) which binds all courts in Australia to take judicial notice of the statutes and ordinances of the states and territories. The effect of these provisions is that in any Australian court the statute law of another state or territory is no longer a question of fact to be alleged in the pleadings and to be proved in court. Where a statute of another state or territory is relevant to the proceedings in the forum, it is sufficient if counsel draws the attention of the court to it.96 [page 414]

17.35 In addition, the Evidence Act 1958 (Vic) and the Evidence Act 1906 (WA) make provision for taking judicial notice of statutes of the United Kingdom.97 17.36 Section 153 of the Evidence Act (Cth) which applies to proceedings in all Australian courts,98 provides a method of proving gazettes and other official documents of the Commonwealth, a state, a territory or a foreign country. It is presumed that where the doing of an act by an authority in Australia or elsewhere is notified or published in the copy or document, that act was duly done on the day it was stated in that document to have been done.99 It has been held at common law that a copy of the London Gazette which would prove an act of state of the United Kingdom may be tendered in evidence for that purpose in Australia.100

The Presumption that Foreign Law is the Same as that of the Forum 17.37 The forum when faced with a question which is governed by the law of a foreign country starts, as a general principle, with the presumption that the law of that country is the same as that of the forum unless proven otherwise. This presumption applies whether the foreign country is a common law country, such as British Columbia,101 or a civil law country, such as Japan.102 The language of ‘presumption’ has been criticised as conveying something that is unrealistic103 and it may be preferable to conceptualise the ‘presumption’ as a default rule; namely that the substantive law of the forum will be applied absent the proof, or the satisfactory proof, of the foreign law indicated by the statutory or common law choice-of-law rule. 17.38 At common law the court cannot take judicial notice of foreign laws.104 In Saxby v Fulton105 Bray J took judicial notice of the fact that gambling was lawful in Monaco. Although Cheshire called this a ‘heresy for which there is neither justification nor support’,106 if foreign law is a question of fact there must be foreign laws of sufficient notoriety that judicial notice may be taken of them. 17.39 The court, however, can take judicial notice of the fact that a country was settled as a British colony by settlers who brought the common law of England with them.107 In those circumstances the court may presume that the common law of

[page 415] England has continued to apply in that country until the contrary is shown.108 This is not quite the same as presuming the law to be the same as that of the forum, for the court will not assume that the statutory variations and additions made by the forum to the common law have been introduced into the foreign country. As Chapman J said in the New Zealand case of R v Ford:109 ‘… we are not obliged to assume that the common law of England has been altered by the legislature of New South Wales to a greater extent than it is proved to have been altered’. 17.40 Where judicial notice cannot be taken of the foreign law, the onus of proving it rests upon the party alleging that it is different from the lex fori,110 even if this party is the defendant.111 In Temilkovski v Australian Iron and Steel Pty Ltd112 Moffitt AJA raised the question whether the presumption that the foreign law is the same as the law of the forum can be relied on where a party has sought to adduce evidence of foreign law which was not admitted or was insufficient. The answer surely is that if the onus of proving the foreign law is not discharged, the presumption (or default to the substantive law of the forum) stands.113

Limitations on the presumption 17.41 The presumption or default rule, however, is not of universal application. As Hunt J pointed out in BP Exploration Co (Libya) Ltd v Hunt:114 The application of the presumption is intended to operate against, not in favour of, the party whose obligation it is to prove the foreign law, so that he is deprived of the benefit of a right or exemption given by that foreign law, but not by New South Wales law if he does not establish that foreign law in the proper way.

17.42 In that case the court held that the requirements of Pt 10 r 5 of the Rules of the Supreme Court of New South Wales which stipulated that service of process be in accordance with the law of the country in which service is sought to be effected, necessitate actual proof of the conditions of service in that country. 17.43 The same principle, it is submitted, also applied in Oesterreichische Laenderbank v S’Elite Ltd115 where the defendant sought to argue that the endorsement of a bill of exchange to the plaintiff bank in Austria was void as a

fraudulent preference under ss 29 and 30 of the English Bills of Exchange Act 1882, on the presumption that the law of Austria was the same. The defendant, seeking an exemption from the normal [page 416] obligation to a holder in due course, had to establish the relevant law of Austria whereunder that exemption arose. 17.44 Similarly, a person who wishes to prove a will must establish affirmatively that the will is valid by the law of the last domicile of the testator, even though the will is in accordance with the lex fori and no evidence is offered as to the law of the last domicile.116 Further, a person who alleges that a contract governed by foreign law is illegal, must affirmatively prove illegality under the foreign law,117 but semble the principle does not apply where the illegal act is malum per se. Also, foreign law has to be proved affirmatively where a statute of the forum makes it a precondition for the recognition or recovery of a certain right that a particular condition exists under the law of the relevant country.118 17.45 The presumption is most safely made in areas of broad legal principle, especially where the presumption is being made with regard to the position of another common law country such as Canada.119 It may be inappropriate for the court to assume that the foreign law is the same as the lex fori in areas of complex and technical (including procedural)120 law. In Damberg v Damberg,121 the question was whether the court should assume that German law on the avoidance or evasion of capital gains tax law is the same as Australian law, there being no evidence of German law before the court. The New South Wales Court of Appeal refused to make that assumption, on the ground that it was unlikely to be accurate. After an extensive review of authorities from several different countries, as well as academic writings, Heydon JA (with whom Spigelman CJ and Sheller JA agreed) said that the presumption is most often made in areas of broad principle, where the application of local principles is unlikely to differ from foreign principles (for example, the principles of contractual construction).122 His Honour said that the problem of when a civil court can or must refuse to be bound by a failure of parties to prove relevant foreign law and a consensus between them that the lex fori applies, is part of the wider problem of the extent to which the parties, by their conduct of proceedings, can prevent the court from deciding a case in accordance with the law or the facts. Heydon

JA said:123 [T]he courts are averse to pronouncing judgments on hypotheses which are not correct. To do so is tantamount to giving advisory opinions and to encouraging collusive litigation. On the other hand, the courts will act on admissions of or agreements about matters of fact where there is no reason to doubt their correctness. But they are reluctant to do so where there is reason to question the correctness of the facts admitted or agreed. A similar caution appears to apply in relation to an assumption or agreement that foreign law is the same as the lex fori.

[page 417] 17.46 Taxation law could not be assumed to be a field resting on great and broad principles likely to be part of any given legal system.124 Because it was likely that the German tax laws contained special machinery and highly individual provisions, it was inappropriate to assume them to be the same as Australian law. A contrast could be drawn with foreign law questions concerning breach of contract, inducing breach of contract and breach of fiduciary duty.125 17.47 A marriage celebrated abroad should also be proved affirmatively to have been celebrated in accordance with the law of the place of celebration.126 But, if no such evidence is available, a foreign marriage may be established either by reliance on a marriage certificate under s 102 of the Family Law Act 1975 (Cth) or s 88G(1) of the Marriage Act 1961 (Cth), or by reliance on the presumption of validity arising out of continued cohabitation.127 ____________________ 1.

Particular care must be taken when the foreign law is expressed in a language other than English: see, for example, Mills v Commonwealth of Australia (2003) Aust Torts Reports ¶81-714 at [29]. Translations may differ in subtle respects which can be material. Additionally, the foreign law may carry with it complementary adjectival rules on statutory interpretation, which may bear on the content and meaning of the foreign law: see Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 at 394–5.

2.

See, generally, R Fentiman, Foreign Law in English Courts, Oxford University Press, Oxford, 1998; and J McComish, ‘Pleading and Proving Foreign Law in Australia’ (2007) 31 MULR 400.

3.

(2002) 210 CLR 491 at 517.

4.

See M Davies, ‘Renvoi and Presumptions about Foreign Law’ (2006) 30 MULR 244 at 263–7.

5.

See, for example, Chapman Marine Pty Ltd v Wilhelmsen Lines A/S [1999] FCA 178 in which the defendants relied upon United States law (as the law governing the bill of lading) as to the meaning of ‘package’ to successfully take advantage of a contractual cap on damages recoverable for the negligent destruction of property. Under United States law, but probably not under Australian law, a vessel transported in a cradle was considered as a ‘package’, thus entitling the defendants to take advantage of the package limitation provision in the bill of lading.

6.

See Voth v Manildra Flour Mills Pty Ltd (1991) 171 CLR 538, and Chapter 8 above.

7.

Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; see also Puttick v Tenon Ltd [2008] HCA 54; (2008) 250 ALR 582; 83 ALJR 93.

8.

Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491.

9.

Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331.

10. Walker v WA Pickles Pty Ltd [1980] 2 NSWLR 281 at 285. 11. See, for example, Amwano v Parbery (2005) 148 FCR 126; McGregor v Potts (2005) 68 NSWLR 109; Murakami v Wiryadi (2010) 268 ALR 377. 12. See Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 477–8, 482–4, as adopted in this regard in Voth (1991) 171 CLR 538 at 565. 13. Puttick v Tenon Ltd (2008) 238 CLR 265 at [31]; see also Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 521. 14. Murakami v Wiryadi (2010) 268 ALR 377 at [85], [154]; Pocock v Universal City Studios LLC [2012] NSWSC 1481 cf [32]. 15. See, for example, PCH Offshore Pty Ltd v Dunn (No 2) (2010) 273 ALR 167. Any claim of prejudice may be attenuated by the ability to refer out difficult questions of foreign law for determination by a referee: Marshall v Fleming (2011) 279 ALR 737 at [6]. 16. Murakami v Wiryadi (2010) 268 ALR 377 at [150]. 17. Minister for Home Affairs v Zentai (2012) 289 ALR 644 at [31]. 18. Suzlon Energy Ltd v Bangad (No 3) [2012] FCA 123. 19. See Chapter 20 below. 20. Puttick v Tenon Ltd (2008) 238 CLR 265. 21. Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 517–18. 22. In New South Wales, P 6, Div 9 of the Uniform Civil Procedures Rules 2005 makes provision for and requires the filing of foreign law notices which are designed to identify and articulate any foreign law issues likely to arise in proceedings, and to flush out the other side’s response and position in relation to such foreign law issues. 23. See Dyno Wesfarmers Ltd v Knuckey [2003] NSWCA 375 at [26] and [55], but cf Australian Wool Innovation Ltd v Newkirk [No 2] [2005] FCA 1307. 24. Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 at [115]; Tahiri v Minister for Immigration and Citizenship (2012) 293 ALR 526; [2012] HCA 61. For a critique of this characterisaton, and an illustration of the contrasting position in the United States under the Federal Rules of Civil Procedure, see M Davies, ‘Renvoi and Presumptions about Foreign Law’ (2006) 30 MULR 244 at 263–5. 25. Callwood v Callwood [1960] AC 659; Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 at 370. 26. See, for example, Collier v Rivaz (1841) 2 Curt 855; 163 ER 608; Bremer v Freeman (1857) 10 Moo PC 306; 14 ER 508. 27. Re Sebba dec’d [1959] Ch 166. 28. Re Marseilles Extension Railway and Land Co (1885) 30 Ch D 598 at 602 per Pearson LJ; Lazard Bros & Co v Midland Bank Ltd [1933] AC 289 at 298. 29. Guaranty Trust Co of New York v Hannay & Co [1918] 2 KB 623 at 667 per Scrutton LJ. 30. [1967] AC 853 at 923.

31. Parkasho v Singh [1968] P 233 at 250 per Cairns J. 32. Evidence Act 1995 (Cth) s 176; Evidence Act 1995 (NSW) s 176; Evidence Act 1929 (SA) s 63a; Supreme Court Civil Procedure Act (Tas) 1932 s 36, Evidence Act 2001 (Tas) s 176; Supreme Court Act 1986 (Vic) s 39, Evidence Act 2008 (Vic) s 176; Supreme Court Act 1935 (WA) s 172; and see R v Mokbel [2006] VSC 137 at [19]. 33. Parkasho v Singh [1968] P 233; James Hardie & Co Pty Ltd v Hall (1998) 43 NSWLR 554. 34. See, for example, European Bank Ltd v Citibank Ltd (2004) 60 NSWLR 153 at 166. 35. Parkasho v Singh [1968] P 233 at 250; Dalmia Dairy Industries Ltd v National Bank of Pakistan [1978] 2 Lloyd’s Rep 223 at 286 per Megaw LJ; James Hardie & Co Pty Ltd v Hall (1998) 43 NSWLR 554 at 573 per Sheller JA. 36. United States Surgical Corporation v Hospital Products International [1982] 2 NSWLR 766, followed in National Mutual Holdings Pty Ltd v Sentry Corp (1989) 22 FCR 209; the Court of Appeal of New South Wales in United States Trust Co of New York v Australia and New Zealand Banking Group Ltd (1995) 37 NSWLR 131; All-State Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 33) (1996) 64 FCR 79; Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 at 371; Hermanowski v United States of America (2006) 149 FCR 93 at 126. 37. Lambert Leasing Inc v QBE Insurance Australia Ltd [2012] NSWSC 953. 38. For a powerful critique of this limitation, see J McComish, ‘Pleading and Proving Foreign Law in Australia’ (2007) 31 MULR 400 at 418–22, who notes with some force that ‘the need for such evidence may be particularly apparent in those cases in which the question of foreign is novel or difficult, or in which there is no pattern of overseas decision-making that would assist the Australian judge to determine how a power or discretion would be exercised by the foreign court’. 39. National Mutual Holdings Pty Ltd v Sentry Corp (1989) 19 FCR 155. 40. Idoport Pty Ltd v National Australia Bank (2000) 50 NSWLR 640 at 644. 41. See, in the case of arbitration, Egmatra AG v Marco Trading Corp [1999] 1 Lloyd’s Rep 862; Re Independent State of Papua New Guinea (No 2) [2001] 2 Qd R 162; in the case of judicial review, Daljeet Singh v Minister for Immigration and Multicultural Affairs (No 2) [2001] FCA 327; Troughton v Deputy Commissioner of Taxation [2008] FCA 18. 42. In Fernandez (t/as Suave Productions) v Perez (t/as Pitbull) [2012] NSWSC 1242, the parties eschewed reliance on expert reports and simply tendered a series of state and federal court decisions as to the circumstances in which Florida law, the law governing the contract in dispute in that case, permitted a third party to enforce a contractual promise. The parties also supplied, presumably as an agreed fact, a note explaining the judicial hierarchy of the courts exercising judicial power in Florida. 43. Optus Networks Pty Ltd v Gilsan (International) Ltd [2006] NSWCA 171 at [87]. 44. Australian Securities Commission v Bank Leumi Le-Israel (1995) 134 ALR 101 at 117 per Sackville J (decision affirmed on other grounds: (1996) 69 FCR 531). See also James Hardie & Co Pty Ltd v Hall (1998) 43 NSWLR 554 at 573 per Sheller JA. The Evidence Act (Cth) applies in federal and Australian Capital Territory courts: see s 4(1). 45. Evidence Act 1929 (SA) s 63; Evidence Act 1906 (WA) ss 70, 71. 46. [1948] NZLR 348. 47. Walt Disney Productions v H John Edward Publishing Co Pty Ltd (1954) 71 WN (NSW) 150. This decision was concerned with the Evidence Act 1898 (NSW), which has been replaced by the Evidence Act 1995 (NSW), which expressly applies to regulations: see s 174(2). The term ‘written laws’ is still used in the legislation in South Australia, Western Australia, Tasmania and the Northern Territory. 48. (1895) 17 LR (NSW) (Eq) 281. But see Subbotovsky v Waung [1968] 3 NSWR 261 at 270 per Nagle J.

49. Compare Evidence Act (Cth and NSW) s 175(2), which permits evidence of the interpretation of a statute of a foreign country to be adduced by producing a book containing reports of judgments of courts of the country if the book is or would be used in the courts of the country to inform the courts about the interpretation of the statute. 50. Williams v Usher (1955) 94 CLR 450. 51. Homeward Bound GM Co (NL) v McPherson (1895) 17 LR (NSW) 281; Re Cohn [1945] Ch 5; Jabbour v Custodian of Absentee’s Property of State of Israel [1954] 1 All ER 145 at 153; Williams v Usher (1955) 94 CLR 450 at 453–4. 52. Alstom Ltd v Sirakis (No 2) [2012] NSWSC 64 at [95]. 53. Evidence and Procedure (New Zealand) Act 1994 (Cth) s 40. 54. Optus Networks Pty Ltd v Gilsan (International) Pty Ltd [2006] NSWCA 171 at [89]. 55. [1933] AC 289 at 298. 56. In the Will and Estate of D’Orgeval (1920) 41 ALT 174, a consular certificate as to the law of France was admitted. But see Temilkovski v Australian Iron and Steel Pty Ltd (1966) 67 SR (NSW) 211. 57. Sussex Peerage Case (1844) 11 Cl & Fin 85 at 116; 8 ER 1034 at 1046. 58. Temilkovski v Australian Iron and Steel Pty Ltd (1966) 67 SR (NSW) 211 at 216 per Sugerman JA. 59. In Lazard Bros & Co v Midland Bank Ltd [1933] AC 289 at 298, Lord Wright stated that ‘[t]he text of the foreign law if put in evidence by the experts may be considered, if at all, only as part of the evidence and as a help to decide between conflicting expert testimony’. 60. Mills v Commonwealth of Australia (2003) Aust Torts Reports ¶81-714 at [28]; Scruples Imports Pty Ltd v Crabtree & Evelyn Pty Ltd (1983) 1 IPR 315 at 323–5. 61. Williams v Usher (1955) 94 CLR 450 at 453–4. 62. Perlak Petroleum Mij v Deen [1924] 1 KB 111 at 116 per Scrutton LJ. 63. Federal courts, and the courts of the Australian Capital Territory, New South Wales, Victoria and Tasmania. 64. Evidence Act 1995 (Cth) s 13(8). 65. Canning v Brown (1867) 6 SCR (NSW) (L) 169; McKelvey v Meagher (1906) 4 CLR 265 at 284 per Griffith CJ. 66. Bristow v Sequeville (1850) 5 Exch 275; 115 ER 118; In the Goods of Bonelli (1875) LR 1 PD 69; Re Will of Lee Hing (1901) 1 SR (NSW) (E) 199; and compare, under the Evidence Act (NSW), Mills v Commonwealth of Australia (2003) Aust Torts Reports ¶81-714 at [6], [16]. 67. Wilkie v McCalla (No 3) [1905] VLR 278 at 283. 68. In the Goods of Whitelegg [1899] P 267. 69. Wilson v Wilson [1903] P 157. 70. Brailey v Rhodesia Consolidated Ltd [1910] 2 Ch 95. 71. (1981) 57 FLR 198. 72. Lacon v Higgins (1822) 3 Stark 178; 171 ER 813; In the Goods of Dost Aly Khan (1880) 6 PD 6; Luder v Luder (1963) 4 FLR 292. 73. Sussex Peerage Case (1844) 11 Cl & Fin 85; 8 ER 1034. 74. R v Ford (1913) 32 NZLR 1219; R v Ilich [1935] NZLR 90. 75. R v Savage (1876) 12 Cox CC 178.

76. Vander Donckt v Thellusson (1849) 8 CB 812; 137 ER 727. 77. De Beeche v South American Stores Ltd [1935] AC 148. 78. Ajatni v Comptroller of Customs [1954] 1 WLR 1405. 79. Cooper-King v Cooper-King [1900] P 65. 80. Bonkowsky v Bonkowsky [1960] NSWR 251. 81. Fleming v Marshall (2011) 279 ALR 737 at [6]–[9]; Leighton International Ltd v Hodge [2011] NSWSC 1381 at [98]. 82. See J J Spigelman, ‘Proof of Foreign Law By Reference to the Foreign Court’ (2011) 127 LQR 208. 83. Di Sora v Phillips (1863) 10 HL Cas 624 at 636–42 per Lord Chelmsford. 84. United States Trust Co of New York v Australia and New Zealand Banking Group Ltd (1995) 37 NSWLR 131. 85. AllState Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 33) (1996) 64 FCR 79 at 85 per Lindgren J; cf. Idoport Pty Ltd v National Australia Bank (2000) 50 NSWLR 640 at 656–7 where it was held that, at least when the foreign law issue related to a subsidiary fact, evidence of foreign law experts as to the effect of foreign law was admissible. 86. Bumper Development Corp Ltd v Commr of Police of the Metropolis [1991] 4 All ER 638 at 644 per Purchas LJ; and see, for example, Schnabel v Yung Lui [2002] NSWSC 15 at [55]–[73]. 87. Temilkovski v Australian Iron and Steel Pty Ltd (1966) 67 SR (NSW) 211 at 282. 88. Russian Commercial and Industrial Bank v Comptoir d’Escompte de Mulhouse [1923] 2 KB 630 at 643. 89. A/S Tallinna Laevauhisus v Estonian State SS Line (1947) 80 LI LR 99 at 108 per Scott LJ; James Hardie & Co Pty Ltd v Hall (1998) 43 NSWLR 554 at 573 per Sheller JA. See also Mills v Commonwealth of Australia (2003) Aust Torts Reports ¶81-714. 90. Sharif v Azad [1967] 1 QB 605 at 616; James Hardie & Co Pty Ltd v Hall (1998) 43 NSWLR 554 at 573 per Sheller JA; Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 at 389–91, 404–6; Kingston Futures Pty Ltd v Waterhouse [2012] QSC 212. 91. Concha v Murietta (1889) 40 Ch D 543 at 549. 92. Evidence and Procedure (New Zealand) Act 1994 (Cth) s 40. 93. Bumper Development Corp Ltd v Commr of Police of the Metropolis [1991] 4 All ER 638 at 646 per Purchas LJ. 94. European Bank Ltd v Citibank Ltd (2004) 60 NSWLR 153 at 166. 95. Evidence Act (Cth) s 5. 96. Koop v Bebb (1951) 84 CLR 629 at 645. 97. Evidence Act (Vic) ss 60, 61, 76; Evidence Act (WA) s 53(1)(b). See also in the case of proof of New Zealand law, Evidence and Procedure (New Zealand) Act 1994 (Cth) s 40. 98. Evidence Act (Cth) s 5. 99. Evidence Act (Cth) s 153(2). 100. Walt Disney Productions v H John Edward Publishing Co Pty Ltd (1954) 71 WN (NSW) 150. 101. Standard Bank of Canada v Wildey (1919) 19 SR (NSW) 384. 102. Bowden Bros & Co v Imperial Marine and Transport Insurance Co (1905) 5 SR (NSW) 614. 103. Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 at 348–9, 395–6.

104. Re Swan (1871) 2 VR (IE & M) 48. 105. [1909] 2 KB 208 at 211. 106. Cheshire and North, Cheshire’s Private International Law, 9th ed, Butterworths, London, 1974, p 128, note 1. The criticism is omitted from the present edition. 107. Dryden v Dryden (1876) 2 VLR (E) 74. 108. Limerick v Limerick (1863) 4 Sw & Tr 252 (Norfolk Island); Dryden v Dryden (1876) 2 VLR (E) 74 (Tasmania); Terrell v Secretary of State for the Colonies [1953] 2 QB 482 at 492 (Straits Settlements). 109. (1913) 32 NZLR 1219 at 1225. 110. King of Spain v Machado (1827) 4 Russ 225 at 239; 38 ER 790 at 795; Lloyd v Guibert (1865) LR 1 QB 115 at 129; Neilson v Overseas Project Corporation of Victoria Ltd (2005) 223 CLR 331 at [249]. 111. Nicholls v Michael Wilson and Partners (2010) 243 FLR 177 at [327] (reversed on other grounds (2011) 244 CLR 427). 112. (1966) 67 SR (NSW) 211 at 231. 113. See, for example, United States Trust Co of New York v Australia and New Zealand Banking Group Ltd (1995) 37 NSWLR 131, where the presumption was applied after expert evidence of foreign law was ruled to be inadmissible; and Toshiba Corp v Mitsui OSK Lines Ltd (The Nichigoh Maru) (Yeldham J, SC (NSW), 1991, unreported) where the presumption was applied after Carruthers J found the evidence of foreign law to be insufficient. 114. [1980] 1 NSWLR 496 at 503. 115. [1981] QB 565 at 569. 116. Re Williamson (1912) 8 Tas LR 33. 117. Florance v Hutchinson (1891) 17 VLR 471. 118. Temilkovski v Australian Iron and Steel Pty Ltd (1966) 67 SR (NSW) 211, dealing with the Workers’ Compensation Act 1926 (NSW) s 71. 119. R v Rigney-Hopkins (2005) Aust Crim R 433 at [43]. 120. See, for example, Boele v Norsemeter Holdings AS [2002] NSWCA 363. 121. (2001) 52 NSWLR 492. 122. See note 121 above, at [144]–[147]. 123. See note 121 above, at [160]. 124. See note 121 above, at [162]; Nicholls v Michael Wilson and Partners (2010) 243 FLR 177 at [332], reversed on other grounds (2011) 244 CLR 427. 125. Nicholls v Michael Wilson and Partners (2010) 243 FLR 177 at [334], reversed on other grounds (2011) 244 CLR 427. 126. Zoubek v Zoubek [1951] VLR 368. 127. Sheludko v Sheludko [1972] VR 82; In the Marriage of Banh (1981) 6 Fam LR 643.

[page 418]

Chapter 18

The Exclusion of Foreign Laws and Institutions Introduction 18.1 Most of the rules of conflict of laws regulate when and under what conditions foreign law shall be applied. There are a few rules, however, which have a negative effect: they specify situations in which foreign laws which may otherwise be applicable by reason of the operation of choice of law rules will not be applied. These can summed up very briefly: the forum will not enforce ‘claims based on or related to the exercise of foreign governmental power’;1 the forum will not give effect to foreign laws and institutions which are contrary to its public policy, or to accepted principles of international law or morality; and in certain circumstances, public policies of the forum are of such importance as to override, in a mandatory fashion, the foreign law prima facie applicable as a result of the operation of the choice of law rule.2 An allied doctrine, already considered in Chapter 10,3 is the act of state doctrine according to which, in certain circumstances, the courts of one country will not sit in judgment on the acts of another government done within its own territory (although the operation of this doctrine is neither absolute nor invariable)4. Whereas the matters considered in the present chapter relate to the nonapplication of certain foreign laws, the act of state doctrine is a principle of nonadjudication.5

[page 419]

The Refusal to Enforce Foreign Governmental Interests 18.2 The learned editors of Dicey, Morris & Collins on the Conflict of Laws,6 put forward a principle of English law in the following terms: English courts have no jurisdiction to entertain an action: (1) for the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign State.

This statement of English law was accepted as correct by the English Court of Appeal in Mbasogo v Logo Ltd7 after a full review of the authorities. 18.3 As Purchas LJ remarked in United States of America v Inkley:8 ‘[T]he enforcement of public law may well be the umbrella under which both penal and revenue suits are embraced’. The difficulty with the term ‘public law’ or its suggested alternative, ‘public right’,9 is that such a concept is unknown to the common law or at least has no accepted meaning in the common law.10 It is a civil law concept and even there it has no easily definable meaning.11 The basis for the rule was explained by Lord Denning MR in Attorney-General of New Zealand v Ortiz in the following words:12 By international law every sovereign State has no sovereignty beyond its own frontiers. The courts of other countries will not allow it to go beyond the bounds. They will not enforce any of its laws which purport to exercise sovereignty beyond the limits of its authority.

18.4 A similar basis had earlier been articulated by Lord Keith in Government of India v Taylor.13 In Mbasogo v Logo Ltd,14 the English Court of Appeal sought to capture the rationale underpinning the rule in Dicey extracted in [18.2] above as involving, as the critical question, whether “in bringing a claim, a claimant is doing an act which is of a sovereign character or which is done by virtue of sovereign authority; and whether the claim involves the exercise or assertion of a sovereign right”. If so, the Court said, the claim would not be determined or enforced.15 18.5 The High Court in Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd suggested that the term ‘governmental interests’ might be more apt ‘to signify that the rule applies to claims enforcing the interests of a foreign sovereign

[page 420] which arise from the exercise of certain powers peculiar to government’.16 Those powers include the power to levy taxation; to punish; to exercise the right of eminent domain; and to protect the national heritage, the national security and the national economy. Such laws will not be given extra-territorial effect unless mandated by legislation or international agreement. The fact that the Australian government pursues similar aims and may even support the application of the foreign law on its territory is not relevant unless backed up by legislation.17 18.6 For the purposes of applying this rule a ‘foreign government’ includes governments within the Commonwealth of Nations, including the United Kingdom.18 It is uncertain whether the government of another Australian state or territory is to be regarded as ‘foreign’. There is much to be said for the statement made by Tritschler CJ of the Manitoba Queen’s Bench in Weir v Lohr:19 In Manitoba the Province of Saskatchewan is not to be regarded as a foreign State. Her Majesty in right of the Province of Saskatchewan is not a foreign sovereign in Her Majesty’s Court of Queen’s Bench for Manitoba.

18.7 A similar approach has been taken in the United States.20 In Australia the point remains without conclusive authority. In Permanent Trustee (Canberra) Ltd v Finlayson21 Dunphy J took the view that the common law rule was displaced within Australia by the ‘full faith and credit’ command of s 118 of the Constitution. However, his decision was reversed by the High Court on appeal without that court ruling on the correctness of the view expressed by Dunphy J.22 More recently, the Queensland Court of Appeal in Rothwells Ltd (in liq) v Connell23 assumed that Western Australia was a ‘foreign’ state in the courts of Queensland, but the issue had not been argued before that court. In State Authorities Superannuation Board v Commissioner of State Taxation for the State of Western Australia,24 Brennan CJ, Dawson, Toohey and Gaudron JJ said that there is no doubt that there remain territorial limitations upon the legislative powers of the states in relation to taxes,25 and McHugh and Gummow JJ said (quoting extra-judicial comments by Sir Owen Dixon) that the recognition of state statutes in other states depends upon the general common law principles governing the extra-territorial recognition and enforcement of rights, as affected by the full faith and credit clause.26 However, neither comment is very conclusive, and the particular issue of enforcement of state revenue laws in other states was not before the court. 18.8 In order to determine whether a foreign governmental interest is sought to

be enforced, regard must be had to both the ‘scope, nature and purpose of [page 421] the particular provisions being enforced and the facts of the case’27 and ‘to the substance of the interest to be enforced, rather than the form of the action’.28 Thus,a governmental interest may be sought to be enforced in an action ostensibly between private citizens or corporations,29 or in an action framed in contract or fiduciary obligation.30 Conversely, the fact that a claim is brought by a public body or person (such as a receiver) appointed pursuant to statute does not necessarily mean that the claim in question is in pursuit of a ‘governmental interest’ or at least a governmental interest of the requisite kind for the purposes of the exclusionary rule.31 It is also necessary to bear in mind that the identification of a public interest embodied or protected by foreign legislation will not, of itself, provide a sufficient basis for the invocation of the exclusionary rule, and that there are many regulatory interventions made in the public interest that do not have the requisite ‘governmental quality’ to attract the rule.32 18.9 Though Australian courts will not enforce claims based on or related to the exercise of foreign governmental power within the forum, they will normally recognise the efficacy of such laws within the territory of the foreign state concerned.33 Thus, they will generally give effect to a change of title effected by governmental command within the territory of the foreign state, and they will not give assistance to an agreement to break the laws of a foreign government even if those laws are of a clearly political or public nature.34 Nor could any person lawfully detained in a foreign country as punishment for the commission of an offence against the laws of that country complain in Australian courts that the detention was unlawful.35 However, there may be a category of laws so obviously contrary to accepted principles of international law and, in particular, to fundamental concepts of human rights, that our courts would refuse to recognise them as laws at all.36 18.10 Revenue and penal laws are long-standing examples of foreign governmental interests. Expropriation is a more recent addition to the list. The amorphous category of ‘other public laws’ is a tribute to the ingenuity of governments to invent new means of intervention.

Revenue laws

18.11 It has been settled since the eighteenth century that common law courts will not enforce the revenue laws of foreign countries.37 An attempt at direct enforcement, such as a suit by a foreign sovereign for succession duty payable on the estate of one of [page 422] its citizens will most certainly be rebuffed.38 But our courts also decline to entertain any foreign claim that by indirect means seeks to enforce a foreign revenue debt. In Government of India v Taylor39 a company that was incorporated in England was being wound up in that country. The company had carried on business in India and owed the Indian government certain arrears in taxation. That government entered a proof in respect of those debts relying on the statutory obligation of the liquidator to discharge all debts of the company. The House of Lords held that the liquidator was entitled to reject the proof since the term ‘liabilities’ referred only to such liabilities as an English court would enforce. In QRS 1 ApS v Frandsen,40 the English Court of Appeal reaffirmed this principle as being applicable to indirect enforcement of revenue laws of another member of the European Union (Denmark), despite the general obligations of reciprocity imposed by the Treaty of Rome constituting the European Union. 18.12 Even if a foreign government is not ostensibly a party, the forum must decline to entertain any suit or application that has the substantial effect of enforcing a foreign revenue claim. In Bath v British and Malayan Trustees Ltd41 an executor appointed in Singapore, the domicile of the deceased, applied by its attorney for letters of administration in New South Wales. It transpired that the Singapore executor had given an undertaking to the Singapore government that it would transmit the local assets of the deceased to Singapore for the purpose of meeting claims for death duties there. Helsham J refused in these circumstances to grant letters of representation to the applicant. Similarly, it was suggested by the Queensland Court of Appeal in Rothwells Ltd (in liq) v Connell42 that to plead that under the stamp duty legislation of a foreign country an unstamped document is inadmissible in evidence is an indirect method of enforcing a foreign revenue law, even though the party pleading the bar has no interest in collecting the stamp duty. 18.13 Nor can the fact that a revenue debt is outstanding to a foreign government ‘be relied upon as a defence. In Rossano v Manufacturers’ Life

Insurance Co43 the plaintiff brought an action in England against a Canadian life insurance company to recover moneys payable under a policy of insurance which he had taken out with the company’s Egyptian branch. The company pleaded that it had been served in Egypt with a garnishee order issued on behalf of the Egyptian government in respect of tax payable to it on the insurance moneys. This plea was disallowed, for had it been successful, it would have been tantamount to enforcing against the plaintiff the revenue claim made by the Egyptian authorities. 18.14 More recently courts in England and Australia have been anxious to ensure that this principle should not be carried too far. The substance of the action is only to be classified as one for the collection of revenue when virtually the only reason for the action is the collection of an unsatisfied revenue debt, as happened in the Irish [page 423] case of Peter Buchanan Ltd v McVey44 where the liquidator bringing the claim was described as the nominee of the British revenue authorities. The fact that the general revenue of a foreign state may benefit from the action is no objection when that state has no revenue claim outstanding against the defendant.45 Even if it has, a claim by the liquidator of a company or the official assignee of a bankrupt will not be refused because some or even the majority of debts proved in the liquidation or bankruptcy are revenue debts owed to a foreign state.46 The House of Lords held in In re State of Norway’s Application (Nos 1 & 2)47 that the rule against the direct or indirect enforcement of a foreign revenue claim in England did not prevent an English court from giving assistance under the Evidence (Proceedings in Foreign Jurisdictions) Act 1975 (United Kingdom)48 in obtaining evidence to be used in the enforcement of the revenue laws of the foreign state in the courts of that state. 18.15 What is a revenue debt? It certainly covers the traditional forms of taxation such as customs duties, income and company taxes and estate, death and succession duties. It has been held to extend to municipal rates49 and compulsory payments to a social security scheme.50 But, as Roper J pointed out in Connor v Connor,51 characterisation of a claim as a revenue claim depends not so much upon the form which the imposition takes or the object upon, or in respect of which, it is levied, but upon the substance of the claim as viewed by the forum.

For instance, a claim for reimbursement of costs made by a statutory legal aid body,52 or a claim for reimbursement of hospital expenses by a statutory health commission,53 have been held not to be revenue claims.

Penal laws 18.16 Australian courts will refuse54 to enforce a foreign penalty whether directly at the suit of a foreign government or indirectly where in a suit between private citizens one party claims that the rights of the other have been modified or extinguished by a [page 424] penal law.55 The characterization of a foreign law, or a claim based on a foreign law, as penal or otherwise is for the law of the forum, and thus depends neither on the label given to the law by the foreign system of law from which it has emanated nor upon whether the claim is brought in the form of a private law claim.56 18.17 What amounts to a penal law? The Privy Council in Huntington v Attrill57 defined as a proceeding to enforce a penalty any ‘proceeding, even in the shape of a civil suit, which has for its object the enforcement by the state, whether directly or indirectly, of punishment imposed for such breaches’. However, the mere fact that a penalty has been imposed by a foreign state to discourage what is socially undesirable conduct is not enough. In order to render the imposition penal the penalties must be recoverable ‘at the instance of the State or of an official on its behalf, or of a member of the public in the character of a common informer’. 18.18 This definition excludes provisions for punitive damages in favour of a private plaintiff,58 or provisions that render promoters of companies personally liable for the debts of the corporation in the case of misconduct on their part.59 18.19 It does include, however, an action brought by or on behalf of a public body entrusted with the duty to enforce a penal statute. Examples are: an action brought by a receiver appointed by a United States court, on the motion of the United States Securities and Exchange Commission, with a view to recover funds abroad in order to prevent the commission or continuation of offences against United States law;60 or the enforcement of a bond entered into to secure

the debtor’s appearance in criminal proceedings.61 18.20 The penalties imposed by the foreign state need not always be in the form of a jail sentence or monetary fine, or the result of judicial proceedings. A Bill of Attainder which decrees the forfeiture of the alleged traitor’s property to the state is obviously penal.62 A law that prohibits a guilty party to a divorce from remarrying as long as the innocent spouse remains single has also been classified as penal.63 [page 425] 18.21 In Sykes v Richardson,64 a letter of request case, it was unsuccessfully contended that the United States anti-trust proceedings in relation to which the request issued ‘related to the commission of an offence’ within the meaning of s 32 of the Evidence on Commission Act 1995 (NSW) because contravention of the Sherman Act amounted to a felony carrying a term of imprisonment and a fine. It was held that, as the United States proceedings from which the letter of request emanated were civil, and had been brought by parties who did not represent the state and could not institute a prosecution or seek the imposition of fines or imprisonment, the proceedings did not ‘relate to’ the commission of an offence. In order to do so, they would have needed to have as their focus whether an offence had been proved and, if so, what the appropriate punishment would be. By analogy, it is suggested that a civil claim brought in Australia for damages for violation of the Sherman Act would be entertained, and would not be held to amount to the enforcement of a foreign penal law.65

Expropriation 18.22 In line with the general principle that the exercise of governmental authority is territorial in effect, Australian courts will not give effect to a purported expropriation of assets situated within the forum by a foreign government even though those assets may belong to a national of that government.66 As was said by Mason CJ, Wilson, Deane, Dawson, Toohey and Gaudron JJ in Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd:67 The principle denies jurisdiction in a court to determine a claim of property based on the operation of a statute or executive act of the foreign State on that property outside the territory of the foreign State.

18.23 Conversely, by virtue of the same principle Australian courts will normally give effect to an expropriation of assets situated in a foreign state by the government of that state.68 The compulsory acquisition of property is not by itself contrary to the public policy of the forum or to principles of international law.69 Even the confiscation of property without compensation by a foreign government will normally be given effect as regards assets situated within that government’s domain.70 The situation may be otherwise if the property is confiscated in a discriminatory manner from [page 426] citizens of the forum,71 or in a racially discriminatory manner from its own citizens.72 But this must appear from the legislation itself; the court will not investigate the motives of the foreign government.73 18.24 In A/O A M Luther v James Sagor & Co74 the plaintiff, a company incorporated in Russia, had been the owner of certain timber situated in that country at the time of the Bolshevik Revolution. Shortly after its accession, the new government confiscated the timber and sold it to the defendant who imported it into England. The plaintiff sued the defendant for the conversion of its property. The Court of Appeal held that a British court would not enquire into the legality of an act done by a foreign government on its own territory. Consequently, title to the timber had passed to the defendant through the new government. Semble, that government must perfect its title by reducing the assets into its possession. If the goods are smuggled out of the expropriating country after the decree, but before they can be seized, the change of title may not be effective.75 18.25 Conversely, if goods are brought forcibly into the expropriating country for the purposes of making the expropriation decree, recognition of the expropriation may be denied. In Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5),76 the plaintiff, Kuwait Airways Corp (KAC), was the owner of ten aircraft situated at Kuwait International Airport at the time of the invasion of Kuwait by Iraq in 1990. The aircraft were seized by the Iraqi forces and flown to Iraq, where the government later passed a resolution purporting to dissolve KAC and transfer all of its assets throughout the world, including the ten aircraft, to Iraqi Airways Co (IAC). Six of the aircraft were eventually returned to KAC, but KAC had suffered considerable loss as a result of being kept out of possession of

them. It sued IAC and the Republic of Iraq for conversion of the six aircraft.77 The House of Lords declined to recognise the Iraqi government resolution as effective to divest KAC of its title to the aircraft as a matter of Iraqi law. This was on the footing that it was legitimate to have regard to the content of public international law in deciding whether or not to recognise a foreign law, and where, as was held to be the case, that foreign law was in gross breach of international law judged by contemporary standards, recognition would be contrary to English public policy. The fact that the aircraft were in Iraq when the expropriation decree was made was not enough to prevent Iraq from being called on to answer for what the Court of Appeal had earlier described as its ‘exorbitant act of international piracy’.78 [page 427] 18.26 Although a foreign government cannot directly expropriate assets situated in Australia, it can achieve this effect if it expropriates the shareholding in a company that is incorporated in its territory. In that case the ownership of the assets of the company remains unchanged; it is the ownership of the company that has changed. This issue was considered by the House of Lords in Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd.79 In that case the Spanish government had compulsorily acquired with provision for compensation the entire shareholding in a Spanish holding company. One of its entirely owned subsidiaries was the English company, Williams & Humbert Ltd. The English company, at the behest of its new owner, the Spanish government, brought action in England against the defendant Jersey company alleging that it held trademarks and money wrongfully diverted to it by the previous owners of the shares in the Spanish company. The previous owners sought to plead that the Spanish law was penal and should not be given effect in England. 18.27 It was doubtful whether the Spanish law was penal, but even if it were, the plaintiff was not seeking to enforce it.80 It is quite clear that the Spanish government could not expropriate directly the shareholding in the English company or any right of action it might have. But it need not do so. The shareholding was and remained vested in the Spanish company. The only matter that had changed was the ownership of the shares in the Spanish holding company. That, as Nourse J had pointed out at first instance,81 ‘had been achieved by perfection of the State’s title in Spain’.

18.28 As the owner of the Spanish company the government could control the actions of the English subsidiary. That government was causing the English subsidiary to bring an action which on the pleadings had been vested in that company prior to expropriation and to which it remained entitled.82 The House of Lords took the view therefore that the assets and rights of the Spanish company in England remained vested in it and could be controlled by its new owners. It rejected the suggestion that such assets and rights should be vested in a receiver to be administered for the benefit of creditors and the original shareholders.83

Other Governmental Interests 18.29 This is the category referred to by the learned editors of Dicey, Morris & Collins84 as ‘other public laws’. It is a residual category, which recognises that the exercise by foreign states of governmental power cannot be confined to the traditional categories of revenue and penal laws. Examples are import and export [page 428] regulations,85 exchange control laws,86 anti-trust legislation87 and the interest of a foreign state in maintaining national security.88 18.30 In Attorney-General of New Zealand v Ortiz89 an ancient Maori artifact had been successfully removed from New Zealand contrary to the provisions of the Historic Articles Act 1962 (NZ), which prohibits the removal of such artifacts without written permission. It further provides that artifacts exported in breach of the Act ‘shall be forfeited to Her Majesty’. The Attorney-General of New Zealand claimed in the English courts that the Crown in right of New Zealand was entitled to possession by virtue of the Act. The House of Lords denied the claim eventually on the ground that, on the interpretation of the New Zealand statute, seizure of the goods had to take place within New Zealand before title passed to the Crown. Lord Denning MR in the Court of Appeal, however, also proceeded on the hypothetical assumption that the New Zealand legislation provided for automatic forfeiture. In that case, he held, the law would fall within the category of ‘public laws’ which an English court would not enforce.90 But a foreign government may seek a declaration that goods have been exported illegally from its jurisdiction.91

18.31 Anti-trust legislation will be given effect in so far as it attaches civil consequences to acts done within the foreign state of enactment.92 But Australian courts will not give effect to orders that seek to regulate behaviour outside that territory by corporations or persons who are not nationals of the country concerned,93 and there are potential limits upon the extent of cooperation with the investigation of such extraterritorial behaviour.94 18.32 In Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd,95 popularly known as the ‘Spycatcher’ case, the High Court had to consider the attempt by the United Kingdom government to enforce the obligation of confidentiality which bound a former employee of its Security Service not to disclose anything learnt by him in the course of his employment and incorporated in s 2 of the Official Secrets [page 429] Act 1911 (United Kingdom). In proceeding in this country the plaintiff did not rely upon any public right under the law of the United Kingdom but on the private rights of any employer to restrain a former employee from disclosing information obtained in the course of employment to the public to the detriment of the plaintiff. 18.33 To this argument the High Court replied:96 … the action is neither fully nor accurately described as an action to enforce private rights or private interests of a foreign State. It is in truth an action in which the United Kingdom Government seeks to protect the efficiency of its Security Service as ‘part of the Defence Forces of the country’. The claim for relief made by the appellant in the present proceedings arises out of, and is secured by, an exercise of a prerogative of the Crown, that exercise being the maintenance of the national security. Therefore the right or interest asserted in the proceedings is to be classified as a governmental interest. As such, the action falls within the rule of international law which renders the claim unenforceable.97

In Islamic Republic of Iran v Barakat Galleries Ltd,98 the English Court of Appeal described the Spycatcher “government interest” test as a “helpful and practical” one in the context of observing that “there is no decision which binds this court to find that there is a rule which prevents the enforcement of all public laws”. On the facts of the particular case, it was held that the claim was not an attempt to enforce export restrictions but to assert rights of ownership even though the antiquities in question had not come into the possession of the State.

18.34 The decision of the New South Wales Court of Appeal in Robb Evans of Robb Evans & Associates v European Bank Ltd99 involved a close analysis of whether an action by a receiver appointed by the Supreme Court of California pursuant to the provisions of the United States Federal Trade Commission Act to recover moneys from an Australian bank said to be the proceeds of a fraudulent credit card scheme involved the enforcement of governmental interests within the meaning of the exclusionary rule. At first instance Palmer J held that it did (with the consequence that the action was not maintainable). On appeal, however, the opposite conclusion was reached with the Court of Appeal emphasising that the identification of a public interest protected by (foreign) legislation is insufficient in itself to attract the operation of the exclusionary rule on the sensible footing that ‘any statute can be characterized as in some manner serving a public interest’100 and noting that there are ‘many regulatory interventions made in the public interest which do not have the requisite governmental quality’.101 Spigelman CJ held that proceedings do not involve a governmental claim unless they seek a penal remedy102 and that the purpose of the foreign statute, to attract the exclusionary rule, must not simply be [page 430] reparation to those aggrieved but, rather, citing Cardozo J in Loucks v Standard Oil Co of New York, the ‘vindication of public justice’.103 In the event, the action was characterized as in substance being for the recovery and reimbursement of funds to defrauded consumers, albeit under the rubric of the Federal Trade Commission Act and through the agency of a receiver.

Public Policy 18.35 In some instances exclusion of foreign laws or institutions is justified by vaguely defined social, moral or political interests of the forum. The court can only define the exact exclusion rule as each situation arises. Thus, in this area public policy operates, as Ehrenzweig put it, ‘as the x of the law, the unknown quantity’.104 18.36 Each legal system has this reserve power (in French, ordre public), which, needless to say, has at times been applied in an unthinking manner. Thus, it was thought at one stage that any foreign legal institution which was unknown

to the forum must for that reason be contrary to public policy.105 Today there is general agreement with the statement by Cardozo J in Loucks v Standard Oil Co of New York106 that ‘[w]e are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home’. 18.37 As a general principle the rules of our legal system are intended to apply to situations that have a sufficient local content to make it desirable, or lead the parties to expect, that our law will regulate it. Our law, for instance, uses the doctrine of consideration to ensure that serious bargains are enforceable. Italian law has a different method of achieving that aim. If Italians enter into an agreement in Italy, we will enforce it if it is binding under Italian law, even though there is a lack of consideration had our law applied.107 Hence, the basic question must be whether our law has an interest in applying its policy to a particular situation in order to defeat the transaction even though it may be valid according to the law that would otherwise have applied. There are three categories, discussed in turn below.

The protection of the domestic interests of Australia 18.38 There exist within our domestic law certain policies that prevent the judicial enforcement of certain types of agreement even though they are not prohibited by positive law. These policies are grouped together under the heading of ‘public policy’. Examples of them are the policy barring a spouse from restricting the right to seek matrimonial relief; the policy against oppression and undue influence; the policy against private settlement of a criminal offence; the policy against restraint of trade; and the policies against gambling and prostitution. [page 431] 18.39 However, public policy as applied in the law of conflicts is by no means synonymous with public policy in the domestic sense. This distinction has not always been observed. In Kaufman v Gerson108 the Court of Appeal was asked to enforce a contract made in France between French citizens whereby the defendant was to repay to the plaintiff certain moneys which the defendant’s husband had embezzled from the plaintiff. In return the plaintiff had promised not to take criminal proceedings against the husband. This was lawful under

French law, but contrary to the English policy against private settlement of public offences. However, in this case no criminal proceedings could ever have lain in an English court. 18.40 Notwithstanding this, the Court of Appeal held the contract to be unenforceable in England. As Collins MR put it:109 … if the plaintiff is setting up a contract obtained in a manner which, in the case of an English contract, the law deems contrary to morality, an English court will not help to enforce it, whatever may be the law of the country in which the contract was made.

18.41 Quite a different approach was taken by the Court of Appeal a few years later in Saxby v Fulton.110 Here it was held that the English domestic policy against the enforcement of gambling transactions did not extend to bar the enforcement in an English court of a loan made in Monte Carlo for the purpose of playing roulette at the Casino, when under the law of Monaco such a transaction was valid and enforceable.111 Similarly, in Addison v Brown112 a maintenance agreement made in California that purported to exclude the jurisdiction of the courts of that state was held enforceable in England, since English public policy was only concerned with the right of access to English courts. 18.42 Clearly the approach taken in Saxby v Fulton is to be preferred in most cases. If a foreign agreement does not affect any interest of the forum, as spatially defined, there is no reason why an agreement should not be enforced. In that case public policy only comes into play if the agreement seeks to do something in the forum that is contrary to its public policy. Thus, an agreement to pay a foreigner a secret commission in respect of something to be done in a foreign country which does not prohibit or discourage such conduct will not offend the domestic interest of the forum to prevent bribery and corruption, because it has no impact thereon.113 However, the position is different where the payment of bribes is forbidden in the foreign country, even though widespread in practice. In such a case, an agreement to pay bribes in the foreign country is unenforceable because it would impair relations between Australia and the foreign country,114 a ground of public policy considered in greater detail below. 18.43 A more recent application of the principle has seen a return to a more interventionist attitude. In Royal Boskalis Westminster NV v Mountain,115 the English [page 432]

Court of Appeal held a foreign agreement to be unenforceable on grounds of English public policy, even though there was little or no effect on English interests, spatially defined. The plaintiffs were Dutch companies that had entered into a contract with Iraqi authorities for dredging work to be done at an Iraqi port close to the border with Kuwait. Dredging work was under way when Iraq invaded Kuwait in 1990. Pursuant to a United Nations resolution, several countries, including the Netherlands, imposed sanctions on Iraq. Iraq responded by passing a law seizing the Iraqi assets of companies from countries that had imposed sanctions. The plaintiffs’ dredging fleet fell into that category. In order to secure the return of the fleet and the safe repatriation of their employees, the plaintiffs entered into a ‘finalisation agreement’ with the Iraqi authorities, pursuant to which the plaintiffs paid large sums into bank accounts in Switzerland and Austria and waived all further claims under the dredging contract. The Court of Appeal held that the ‘finalisation agreement’ was unenforceable in England as a matter of English public policy.116 Stuart-Smith LJ said whatever attitude a modern court might take to the degree of coercion in Kaufman v Gerson, ‘any civilised tribunal’ would refuse to give effect to the ‘finalisation agreement’ in the present case, given the degree of duress the plaintiffs had been under when they signed it.117 Not only had their entire dredging fleet been seized, but also the Iraqi forces were threatening to use hundreds of their employees as part of a ‘human shield’ policy to ward off aerial attack.118

The protection of the external interests of Australia 18.44 In the first instance it is an interest of the Australian community to protect itself from hostile foreign acts or legislation. Thus, it has long been established that an Australian court will refuse to give any recognition or effect to a law of a country at war with Australia, which discriminated against Australian citizens or their property.119 It may be that this principle also applies to discriminatory laws enacted in peacetime by way of economic warfare.120 18.45 Again it has been long established that the interests of Australia demand that all contractual obligations to enemy aliens should be abrogated. This principle applies even though the contract is governed by the law of the enemy state and its law knows of no such principle or merely suspends the obligation during hostilities.121 18.46 The protection of the external interests of Australia is also relevant to

dealings that adversely affect the relationship of Australia with foreign nations. It is contrary to Australian public policy to enforce an agreement the performance of which would, to the knowledge of each of the parties to the agreement, involve of [page 433] necessity the breach of the law of another country on its territory. Thus, it was held in Foster v Driscoll122 that an English court would not enforce an agreement entered into for the purpose of smuggling whiskey into the United States during Prohibition. In Regazzoni v K C Sethia (1944) Ltd123 an agreement to export jute from India to Italy, which to the knowledge of both parties was to be re-exported to South Africa in contravention of an Indian embargo imposed in protest against apartheid, was refused enforcement. But the principle has been narrowly confined. The fact that the performance of the contract will contravene the public policy of the foreign country is not by itself sufficient.124 Nor does it apply where compliance with the terms of the contract of necessity involves only one party, without the knowledge or concern of the other, breaking the law of another country, for example, where the buyer of goods cannot pay for them without evading currency restrictions imposed by the buyer’s country of residence.125 18.47 In each of the cases mentioned above, the proper law of the agreement was English. However, it would seem that the rule does not apply because English or Australian law is the proper law, but because of the risk of offending a foreign nation by appearing to countenance a breach of its law. 18.48 However, the breach contemplated must be one which is to be committed on the territory of the prohibiting state. Otherwise the principle that extraterritorial effect will not be given to the governmental interests of a foreign state will apply. An Australian court will not refuse to enforce an agreement to perform an act in Australia and lawful here, because it happens to be prohibited under the law of a foreign country such as the United States anti-trust laws.126

The protection of moral interests of universal application 18.49 Although Australian courts will not enforce rules of domestic public

policy in respect of agreements which have no connection with the forum, it has long been recognised that there are certain fundamental rules of justice and morality which an Australian court must maintain regardless of connection with the forum. Examples are breaches of internationally recognised basic standards of human rights and morality, and breaches of established rules of public international law. 18.50 In Oppenheimer v Cattermole (Inspector of Taxes)127 the House of Lords was faced with a Nazi German decree of 1941 depriving German citizens of Jewish descent who were living abroad of their German nationality and property. On the facts of the case it was not necessary to consider the effect of the German decree in England, but a majority of their Lordships (Lords Hodson, Cross, Salmon; Lord Pearson dissenting and Lord Hailsham doubting) would have refused to [page 434] give effect to the German legislation both as regards the deprivation of German nationality and the confiscation of property situated in Germany. Lord Cross said:128 … what we are concerned with is legislation which takes away without compensation from a section of the citizen body singled out on racial grounds all her property on which the State passing the legislation can lay its hands on and, in addition deprives them of citizenship. To my mind a law of this sort constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all.

18.51 This statement received the support in obiter comments of justices of the High Court of Australia in Sykes v Cleary.129 18.52 The refusal to recognise a statute that offends against basic human rights as a law at all will mean that in proceedings in the forum the foreign law will be denied even intraterritorial effect. Mr Oppenheimer would by English courts be treated as a German citizen and as the owner of his German assets even though by a German court he would not. In contrast to the general line of expropriation cases, a subsequent owner obtaining title to assets situated in Germany by German law could not rely on that title if brought into the forum. Since our courts are reluctant to ascribe bad faith to foreign governments, the discrimination must be obvious on the face of the legislation.130 18.53 A breach of internationally recognised standards of commercial morality

may also raise public policy issues. Thus, it was held in Lemenda Trading Co Ltd v African Middle East Petroleum Co Ltd131 that an agreement to pay a secret commission to a person for procuring the renewal of a contract with a foreign state trading organisation by using personal influence with its managing director will not be enforced when it offends a head of public policy of the forum founded on general principles of morality and a similar public policy of the place where payment was to be made, even though not prohibited by the law of either country. The Western Australian Court of Appeal recently came to the same conclusion on similar facts in Fullerton Nominees Pty Ltd v Darmago.132 18.54 A law that is in breach of international law may be denied recognition even if it takes effect territorially. Until recently, there was little authority for this proposition, but it received extensive consideration by the House of Lords in Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5),133 the facts of which are described above.134 [page 435]

The Exclusion of Foreign Status and its Incidents 18.55 There has for some time existed a supposed rule that a ‘penal’ status will not be given effect in the forum. This heresy originated in Worms v De Valdor.135 In that case the plaintiff, who was domiciled in France, had been declared a ‘prodigal’ under French law. The result was that under French law he could not bring or defend an action without the assistance of a court appointed adviser. Notwithstanding, the plaintiff brought an action in England unaided. 18.56 Fry J allowed the action to proceed. He assumed without argument that an incapacity imposed by the law of the domicile as incidental to status was entitled to recognition unless an exclusionary rule could be invoked. He suggested that if the incapacity of a prodigal did involve a question of status, he would have disregarded it as being ‘penal’. However, it was not necessary to decide the point, since in his Lordship’s view the effect of French law was not to change the status of the plaintiff. In the upshot he classified the disabilities imposed by French law on the plaintiff as procedural and consequently inapplicable to proceedings in England. This reasoning on both points was

followed by Farwell J in Re Selot’s Trusts136 so as to permit the payment out of money paid into the court to the ‘prodigal’ direct without the intervention of his adviser. 18.57 From these decisions, one can only deduce the rule that the issue whether or not a person can bring suit or receive moneys in respect of a cause of action still vested in that person is to be decided in accordance with the law of the forum. Yet the unfortunate fact remains that subsequent judges have treated the obiter dicta as the ratio decidendi of these cases. This has led to the obvious absurdity of maintaining that a restriction imposed in order to preserve a spendthrift’s inheritance is ‘penal’. 18.58 Regrettably this peculiar principle was given a new lease of life by the English Court of Appeal in Re Langley’s Settlement Trusts.137 In that case the settlor of an English settlement had been declared an ‘incompetent’ by the court of his Californian domicile by reason of his physical infirmity, although his mental capacity remained unimpaired. The court appointed his wife as guardian. The settlor wished to exercise the power under the deed of settlement of making certain variations, to make assurance doubly sure both the settlor and his wife executed the relevant documents. 18.59 One would have thought that in such a case the exercise of the power was effective whichever view one took and indeed the Court of Appeal came to that sensible conclusion. Unfortunately the Court of Appeal also approved the remarks of Buckley LJ at first instance, who had described the Californian disability as [page 436] ‘penal’ in the sense of ‘law of a kind which deprives the person affected of his rights or property in a way which adversely affects his interests’.138 18.60 Their Lordships, no doubt uneasily aware of the absurdities of this approach, added another string to their bow. After acknowledging that there was a principle of universality of capacity, they qualified it by saying that there was a discretionary power in the forum to give effect to the foreign capacity or incapacity within the forum.139 It was in the exercise of this discretion that their Lordships excluded the Californian incapacity from operation in England, thus leaving the settlor free to exercise the capacities he possessed under the law of

the forum. 18.61 From this has developed a new principle which had no basis in previous authority, namely that English courts have ‘a residual discretion not to apply the law of the domicile where it is not proper to do so in the circumstances of a particular case’.140 The limits of that discretion have not been defined with precision, but in Middleton v Middleton141 Cairns J would apply that discretion to anything that ‘strikes an English court as fundamentally unfair’. 18.62 In recent years the principle has traveled from a refusal to give extraterritorial effect to so-called ‘penal’ disabilities to a discretion to refuse to give effect within the forum to divorces and annulments pronounced by the court of the domicile.142 Its possible operation in Australia in that context will be discussed in Chapter 25. It is sufficient to submit here that the notion of a discretion to set aside the effect of established choice of law rules in order to achieve what strikes a court in the forum as a just result in the individual case is an extremely dangerous idea which should not be accepted by Australian courts.143

Retrospective Laws 18.63 As Lord Reid said in Adams v National Bank of Greece SA:144 ‘ There is no general rule that English law will not give effect to foreign retrospective legislation’. As a matter of Australian domestic law, Maxwell v Murphy145 stands for the proposition that a statute (other than one dealing with procedure) is presumed to operate prospectively only. The forum must determine in each case whether the application of the foreign retrospective law is consonant with its public policy. The paramount question is whether giving effect to retrospective legislation would lead on the whole ‘to much more just and reasonable results’.146 18.64 Legislation that purports to validate a transaction or legitimise a relationship which already exists inchoately, such as a purported marriage celebrated by an unauthorised person,147 would usually be regarded with favour by the courts. But retrospective legislation will, generally speaking, not be given effect where it purports to invalidate a transaction or relationship which was initially valid or lawful, such as a disposition under a will,148 or, arguably, where the legislation by invalidating an earlier transaction will have the effect of invalidating a subsequent transaction entered into on the then valid assumption that the first transaction was a nullity.149

____________________ 1.

Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 43.

2.

See, in the context of the proper law of a contract being overridden by a mandatory law of the forum, 19.39–19.49 below.

3.

See 10.68–10.84 above.

4.

See Habib v Commonwealth (2010) 183 FCR 62; Moti v R (2011) 245 CLR 456 at [46]–[52]; Yukos Capital SARL v OJSC Rosneft Oil Company [2013] 1 All ER 223.

5.

Mockbel v Attorney General (Cth) (2007) 162 FCR 278 at 292.

6.

Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Thomson Sweet & Maxwell, London, 2012, para [5R-019]. This division has been accepted by Cheshire, North and Fawcett, Private International Law, 14th ed, Oxford University Press, Oxford, 2008, Ch 8.

7.

[2007] QB 846.

8.

[1989] QB 255 at 264.

9.

Attorney-General of New Zealand v Ortiz [1984] AC 1 at 33 per Ackner LJ.

10. Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 42; Robb Evans of Robb Evans & Associates v European Bank Ltd (2004) 61 NSWLR 75 at 85–6. 11. For an example, see the discussion by Lord Goff in Re the State of Norway’s Application (Nos 1 and 2) [1990] 1 AC 723 at 802–3. 12. [1984] AC 1 at 21. 13. [1955] AC 491 at 511; see also Re Norway’s Application (Nos 1 and 2) [1990] 1 AC 723 at 808; Robb Evans of Robb Evans & Associates v European Bank Ltd (2004) 61 NSWLR 75 at 86. 14. [2007] QB 846. 15. See note 14 above, at [50]. 16. (1988) 165 CLR 30 at 42 per Mason CJ, Wilson, Deane, Dawson, Toohey and Gaudron JJ. 17. See note 16 above, at 47–8. 18. See note 16 above. 19. (1967) 65 DLR (2d) 717 at 723. 20. State ex rel Oklahoma Tax Commission v Rodgers (1946) 193 SW 2d 919; Ohio ex rel Duffy v Arnett (1950) 234 SW 2d 722; Detroit v Gould (1957) 146 NE 2d 61. 21. (1967) 9 FLR 424. 22. (1968) 122 CLR 338. 23. (1993) 119 ALR 538 at 545–6 per Fitzgerald P and Williams J, 548–9 per McPherson JA. 24. (1995) 189 CLR 253. 25. See note 24 above, at 271. 26. See note 24 above, at 286. 27. Robb Evans of Robb Evans & Associates v European Bank Ltd (2004) 61 NSWLR 75 at 87. 28. Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 46.

29. Bath v British and Malayan Trustees Ltd (1969) 90 WN (NSW) (Pt 1) 44. 30. Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30. 31. Robb Evans of Robb Evans & Associates v European Bank Ltd (2004) 61 NSWLR 75. 32. See note 31 above, at 87. 33. See, for example, Dagi v BHP Co Ltd (No 2) [1997] 1 VR 428 at 441 per Byrne J. 34. Regazzoni v K C Sethia (1944) Ltd [1958] AC 301. 35. Re Sutherland (1922) 39 WN (NSW) 108. 36. Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249 at 278 per Lord Cross. 37. This is subject to statutory exceptions in the case of New Zealand tax and Papua New Guinea income tax: see the definition of enforceable money judgment in s 3 of the Foreign Judgments Act 1991 (Cth). 38. Re Visser; Queen of Holland v Drukker [1928] Ch 877. 39. [1955] AC 491. 40. [1999] 1 WLR 2169. 41. (1969) 90 WN (NSW) (Pt 1) 44. 42. (1993) 119 ALR 538 at 545–6 per Fitzgerald P and Williams J, 548–9 per McPherson JA. 43. [1963] QB 352. 44. [1954] IR 89 noted in [1955] AC at 520 and followed in QRS 1 ApS v Frandsen [1999] 1 WLR 2169, which the Court of Appeal said was in all material respects indistinguishable from Buchanan. 45. Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] AC 368 at 440–1 per Lord Mackay; Connor v Connor [1974] 1 NZLR 632; QRS 1 ApS v Frandsen [1999] 1 WLR 2169. 46. Ayres v Evans (1981) 39 ALR 129. Query, whether the obligation under s 29(2) of the Bankruptcy Act 1966 (Cth) to act in aid of the courts of prescribed countries such as the United Kingdom and New Zealand in matters of bankruptcy leaves any room for the application of the common law principle of non-enforceability of revenue debts, ibid. See also Taylor v Dow Corning Australia Ltd [1999] 1 VR 235. 47. [1990] 1 AC 723. 48. This statute implemented the Hague Convention of 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, to which Australia has also acceded. See 11.46–11.50 above. 49. Municipal Council of Sydney v Bull [1909] 1 KB 7. 50. Metal Industries (Salvage) Ltd v Owners of S T ‘Harle’ [1962] SLT 114. 51. [1974] NZLR 632 at 636. 52. See note 51 above. 53. Weir v Lohr (1967) 65 DLR (2d) 717. 54. A limited statutory exception exists in respect of tax payable by way of penalty for contravention of a New Zealand tax law: see definition of ‘New Zealand tax’ in s 3 of the Foreign Judgments Act 1991 (Cth). 55. Banco de Vizcaya v Don Alfonso de Borbon y Austria [1935] 1 KB 140. 56. Islamic Republic of Iran v Barakat Galleries Ltd [2009] QB 22 at [106]. 57. [1893] AC 150 at 156–8. 58. SA General Textiles v Sun and Sand Ltd [1978] QB 279 at 299 per Lord Denning MR; Schabel v Lui

[2002] NSWSC 115; but see, for a contrary view, Benefit Strategies Group Inc v Prider (2005) 91 SASR 544. 59. Huntington v Attrill [1893] AC 150. 60. Schemmer v Property Resources Ltd [1975] Ch 273 at 288 per Goulding J; but compare Robb Evans of Robb Evans & Associates v European Bank Ltd (2004) 61 NSWLR 75, discussed further at 18.34 below. The correctness of the decision in Schemmer was also doubted in Islamic Republic of Iran v Barakat Galleries Ltd [2009] QB 22 at [109] where the English Court of Appeal observed that the fact that a provision is found within a law which contains criminal sanctions, such as penalties or forfeiture, does not mean that the provision itself is penal in nature. The Court characterized the receiver’s appointment in Schemmer as not to enforce the penal provisions of the Act but to preserve and recover property of the company. 61. USA v Inkley [1989] QB 255. 62. Banco de Vizcaya v Don Alfonso de Borbon y Austria [1935] 1 KB 140. 63. In the Marriage of Mustafa (1981) 7 Fam LR 711, but not where the purpose of the prohibition is merely to prevent remarriage before the time prescribed for appealing has expired: Miller v Teale (1954) 92 CLR 406 at 415. 64. (2007) 70 NSWLR 66. 65. It may be noted that it was assumed by the parties in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 387 that such a claim could not be entertained in Australia. That assumption was probably correctly made in light of the then Australian choice of law rule for tort (with contravention of the Sherman Act being characterised as a statutory tort). It would not be correct now in light of Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491: see generally Chapter 20 below and 9.28 above. 66. Bank voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248 at 260 per Devlin J. 67. (1988) 165 CLR 30 at 41. See also Brennan J at 50. 68. See note 67 above. 69. Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] AC 386 at 427–8 per Lord Templeman; Kuwait Airways Corp v Iraqi Airways Co (No 3) [2001] 1 All ER (Comm) 557 at [321] per Henry, Brooke and Rix LJJ. 70. Re Helbert Wagg & Co Ltd [1954] Ch 232 at 246 per Upjohn J. 71. The Rose Mary [1953] 1 WLR 246, as explained by Upjohn J in Re Helbert Wagg & Co Ltd [1954] Ch 232 at 246. But compare Kuwait Airways Corp v Iraqi Airways Co (No 3) [2001] 1 All ER (Comm) 557 at [268]–[271] per Henry, Brooke and Rix LJJ, suggesting that the nationality of the claimant is not decisive. 72. Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249. 73. Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] AC 386 at 431 per Lord Templeman. 74. [1921] 3 KB 532. 75. Attorney-General of New Zealand v Ortiz [1984] AC 1 at 19, 20 per Lord Denning MR. 76. [2002] 2 AC 883. 77. The litigation concerned ten aircraft in all. A separate group of four KAC aircraft was destroyed during air attacks by the military forces that expelled Iraqi forces from Kuwait. The dispute about those four aircraft turned on different issues not relevant here. 78. [2001] 1 All ER (Comm) 557 at [336] per Henry, Brooke and Rix LJJ.

79. [1986] AC 386. 80. See note 79 above, at 428 per Lord Templeman, at 437 per Lord Mackay. 81. [1985] 2 All ER 208 at 218. 82. [1986] AC 386 at 433 per Lord Templeman. 83. See note 82 above, at 429–30. 84. Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Thomson Sweet & Maxwell, London, 2012 at [5R-109]. 85. Attorney-General for New Zealand v Ortiz [1984] AC 1 but note the observation in Islamic Republic of Iran v Barakat Galleries Ltd [2009] QB 22 at [128] that it is “possible but by no means certain that export restrictions” fall within the category of “other public laws”. 86. Re Lord Cable (dec’d) [1976] 3 All ER 417 at 433 per Slade LJ; Camdex International Ltd v Bank of Zambia (No 2) (1997) Times 28 January 1997, noted at (1997) 68 BYBIL 369. 87. Re Westinghouse Uranium Contract [1978] AC 547 at 615–7 per Lord Wilberforce but see 18.31 below. 88. Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30. 89. [1984] AC 1. 90. See note 89 above, at 20–4. 91. Kingdom of Spain v Christie Ltd [1986] 1 WLR 1120. 92. See, by analogy, Sykes v Richardson (2007) 70 NSWLR 66 and 18.21 above. 93. British Nylon Spinners Ltd v ICI Ltd [1953] Ch 19. 94. Re Westinghouse Uranium Contract [1978] AC 547. As to cooperation in collecting evidence for antitrust suits abroad, see Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth) Pt II Div 2; as to enforcement of judgments in anti-trust suits, see ibid Pt IV. In Sykes v Richardson (2007) 70 NSWLR 66, Hidden J gave effect to letters of request issued by a United States District Court hearing proceedings under the Sherman Act for the examination of a witness who was resident in Australia but who, at the relevant time of the events the subject of the Sherman Act suit, had resided in England. 95. (1988) 165 CLR 30. 96. See note 95 above, at 46–7 per Mason CJ, Wilson, Deane, Dawson, Toohey and Gaudron JJ. 97. For a criticism of the decision, see Mann,‘Spycatcher in the High Court of Australia’ (1988) 104 LQR 497. But for an apparent endorsement of the approval of the High Court, see the decision of the Privy Council in President of the State of Equatorial Guinea v Royal Bank of Scotland [2006] UKPC 7 at [24]–[25]. 98. [2009] QB 22 at [125]. 99. (2004) 61 NSWLR 75. 100. See note 99 above, at 87. 101. See note 99 above. 102. See note 99 above, at 88. 103. See note 99 above. 104. Ehrenzweig, Treatise on the Conflict of Laws, West Publishing Co Inc, New York, 1962, p 344. 105. See, for example, Re Macartney [1921] 1 Ch 522. 106. (1918) 120 NE 198 at 201.

107. Re Bonacina [1912] 2 Ch 394. 108. [1904] 1 KB 591. 109. See note 108 above, at 598. 110. [1909] 2 KB 208. 111. See also Florance v Hutchinson (1891) 17 VLR 471; Norris v Woods (1926) 26 SR (NSW) 234. 112. [1954] 2 All ER 213. 113. Lemenda Trading Co Ltd v African Middle East Petroleum Co Ltd [1988] QB 448 at 458–61 per Phillips J. 114. Fullerton Nominees Pty Ltd v Darmago [2000] WASCA 4. 115. [1999] QB 674. 116. Strictly speaking, the question before the court was whether the agreement would be unenforceable as a matter of French public policy, because the dredging contract provided for arbitration in Paris. There being no evidence that French law was any different from English on the point in question, the court applied English law and English public policy: see Chapter 17. 117. [1999] QB 674 at 689. 118. See note 117 above. 119. Wolff v Oxholm (1817) M & S 92; Re Fried Krupp Attorney-General [1917] 2 Ch 188 at 193 per Younger LJ. 120. See The Rose Mary [1953] 1 WLR 246. 121. Dynamit Attorney-General v Rio Tinto [1918] AC 292. 122. [1929] 1 KB 470. 123. [1958] AC 301. 124. Lemenda Trading Co Ltd v African Middle East Petroleum Co Ltd [1988] QB 448 at 456 per Phillips J. 125. Toprak v Mahsulleri Ofisi v Finagrain [1979] 2 Lloyd’s Rep 98, or that the buyer intends to apply the goods for illegal purposes after the contract for sale has been completed: Euro-Diam Ltd v Bathurst [1990] 1 QB 1. 126. British Nylon Spinners v ICI Ltd [1953] Ch 19. 127. [1976] AC 249. 128. See note 127 above at 278. 129. (1992) 176 CLR 77 at 112–13 per Brennan J, at 135–6 per Gaudron J. 130. Settebello Ltd v Banco Totta and Acores [1985] 2 All ER 1025. 131. [1988] QB 448 at 461 per Phillips J. 132. [2000] WASCA 4. 133. [2002] AC 883. 134. See 18.25 above. 135. (1880) 49 LJ (NS) 261. 136. [1902] 1 Ch 488. 137. [1962] Ch 541. 138. [1961] 1 All ER 78 at 81, endorsed on appeal at [1962] Ch 541 at 556 per Lord Evershed MR, at 560

per Danckwerts LJ, but see to the contrary at 557 per Donovan LJ. 139. See note 138 above, at 555 per Evershed MR, at 558 per Donovan. 140. Russ v Russ [1964] P 315 at 327 per Willmer LJ. 141. [1967] P 62 at 70. 142. Gray v Formosa [1963] P 259; Vervaeke v Smith [1983] 1 AC 145. 143. See the remarks of Brennan J in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 238. 144. [1961] AC 255 at 283. 145. (1957) 96 CLR 261. 146. Starkowski v Attorney-General [1954] AC 155 at 170. 147. See note 146 above. 148. Lynch v Provisional Government of Paraguay (1871) LR 2 P & D 268. 149. Starkowski v Attorney-General [1954] AC 155 at 176 per Lord Tucker, at 182 per Lord Cohen, at 168 per Lord Morton of Henryton.

[page 439]

PART IV

Obligations Chapters 19

Contracts

20

Torts

21

Restitutionary Claims and Equitable Obligations

22

Negotiable Instruments

23

International Monetary Obligations

[page 441]

Chapter 19

Contracts The Proper Law 19.1 The basic conflictual rule in relation to contracts is that the proper law of the contract is paramount in determining the creation, validity and effect of the contractual obligation. As Lord Diplock put it in Amin Rasheed Shipping Corp v Kuwait Insurance Co:1 My Lords, contracts are incapable of existing in a legal vacuum. They are mere pieces of paper devoid of all legal effect unless they were made by reference to some system of private law which defines the obligations assumed by the parties to the contract by their use of particular forms of words and prescribes the remedies enforceable in a court of justice for failure to perform any of those obligations.

19.2 This passage makes it clear that the court will look for the proper law of a contract as a whole and not for a proper law for each of the particular issues raised before the court. This does not exclude the possibility that the court may find in special circumstances that a particular aspect of the contract is governed by a law other than that which governs the main obligations of the contract.2 In such a case it is probably correct to speak of the former as the law governing the particular aspect and of the latter as the proper law of the contract, even though it is not all-embracing.3 In Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society,4 Evatt J expressed the opinion that ‘the whole theory which lies at the root of private international law, however difficult that theory may be in application, is that the law of one country, and one country alone, can be the proper or governing law of the contract’, but then went on to explain that the law of another country may be applied to a particular issue where the law of the chosen country ‘requires or concedes’ that consequence. He gave the example of the law other than

[page 442] the governing law being applied to questions concerning the methods and incidents of performance of the contract. The courts, however, should always start with the presumption that the parties intended to refer the entirety of their obligations to one legal system only. This presumption, which reflects only common sense and business convenience, should not be rebutted ‘readily and without good reason’.5 19.3 The parties’ intention as to the governing law may be express or inferred. Where the system of law has been expressly chosen by the parties, the issue arises as to whether there are any limits to such a choice.6 If, as happens in many contracts, the document is silent on the question of the governing law, the issue arises as to whether the court can infer an unexpressed intention from the document or the surrounding circumstances7 or must ascribe a proper law to the contract by some objective process.8 An important residual question which only arises once the proper or governing law has been identified is whether and to what extent that governing law is overridden or affected in its operation by any law of the forum.9 In this context, it is important to appreciate that the principle of statutory interpretation which holds that, unless a contrary intention appears, statutory provisions are understood as having no application to matters governed by foreign law,10 is only presumptive; so that, in every case where a statute of the forum is potentially engaged in a contractual dispute, it is necessary to assess whether or not, as a matter of statutory construction, that statute was intended to apply irrespective of the governing law, whether or not expressly or impliedly chosen, or objectively ascertained.11 19.4 Where a foreign law is chosen by the parties, the choice must be of a ‘system of private law’; that is, the law of a particular country or law area.12 That law fixes [page 443] the interpretation and construction of the contract’s express terms and supplies the relevant background of statutory or implied terms.13 It has traditionally been considered that the reference to the law of a particular country or law area (such as ‘the law of New York’, for example) is a reference to the domestic or ‘internal’ law of the country or law area; that is to say, to the law of that country

or law area but excluding its principles or private international law. The corollary of this proposition is that the doctrine of renvoi does not apply in the field of contract.14 This may, however, be regarded as an open question in Australia in light of the decision of the High Court in Neilson v Overseas Projects Corporation of Victoria Ltd.15 It is open to parties to put the matter beyond doubt by expressing their choice of law as excluding the conflict-of-law rules of the chosen country or law area (for example, ‘[t]his contract is governed by the law of New York but excluding its choice-of-law rules’).16 The possible application of renvoi in the area of contract, to the extent it applies at all, applies equally in circumstances where the parties have not made an express choice but where such a choice is either inferred or the proper law is objectively ascertained by reference to the system of law with which the contract has its closest and most real connection. 19.5 The United Kingdom has adopted the EEC Convention on the Law Applicable to Contractual Obligations, concluded in Rome in 1980 (the ‘Rome Convention’) which seeks to unify the choice-of-law rules applicable to contracts in the countries belonging to the European Union.17 Australia is not eligible to become a party to that convention but, since the convention is universal in its scope, the courts of member countries will be obliged to apply it to any contracts involving Australian parties arising before them.18 The Australian Law Reform Commission (ALRC) has also considered the question of choice of law in contract, and many of its recommendations bear a close similarity to the Rome Convention.19 Some of those proposals will require legislation before an Australian court could consider them. But others seek to clarify the law on points that are uncertain. Where an Australian court has a choice, it will obviously be sensible to adopt solutions that have found some degree of international acceptance. For that reason, reference will be made from time to time to both the Rome Convention and the ALRC proposals. [page 444]

Express selection of the proper law 19.6 The principle of party autonomy has now virtually universal support. It is the cornerstone of the Rome Convention,20 and the ALRC has recommended that the parties’ right to choose the law governing their contract should be upheld.21

19.7 One must distinguish between the selection of a foreign legal system as the proper law of the contract and the incorporation of specific provisions of foreign law as part of the terms of the contract. It is open for the parties to provide that the provisions of a foreign code or statute shall be read as part of the contract. Certain statutes, especially those dealing with commercial matters, may set out the rights and obligations of, say, seller and buyer, in such a satisfactory manner that the parties may well wish to adopt them as part of their contract. While such an incorporation may support the inference of the selection of that legal system as the proper law, there is nothing to prevent the parties from selecting another legal system as the proper law. In that case the words used in the document so incorporated will be interpreted in accordance with the law from which they were taken, but the substantive effect of the terms must be determined under the proper law of the contract.22 This principle was expounded by Potter LJ in Beximco Pharmaceuticals Ltd v Shamil Bank of Bahrain as follows:23 The doctrine of incorporation can only sensibly operate where the parties have by the terms of their contract sufficiently identified specific ‘black letter’ provisions of a foreign law or an international code or set of rules apt to be incorporated as terms of the relevant contract such as a particular article or articles of the French Civil Code or the Hague Rules. By that method, English law is applied as the governing law to a contract into which the foreign rules have been incorporated. In such a case, in construing and applying those rules, where there is ambiguity or doubt as to their ambit or effect, it may be appropriate for the court to have regard to evidence from experts in foreign law as to the way in which the provisions identified have been interpreted and applied in their ‘home’ jurisdiction. However, that is still only as an end to interpretation by the English court in the course of applying English law and rules of construction to the contract with which it is concerned.

In Engel v Adelaide Hebrew Congregation Inc,24 the Full Court of the Supreme Court of South Australia accepted the proposition that parties to a contract governed by Australian law can agree to incorporate provisions of another system of law as provisions of the contract. That other system of law, it seems, may include a system of religious law, provided that the reference or body of principles referred to are sufficiently certain in their content. [page 445]

The expression of choice 19.8 The most obvious manner in which the parties can express their choice as to the proper law of the contract is by stating explicitly that the law of a specified

country25 (although probably not a religion)26 shall be the proper law of the contract or the law governing the contract.27 The choice must be expressed in a manner which makes it possible to identify the proper law. Apart from identifying expressly the particular country or law area whose law is to govern, the choice may be expressed by reference to the law of the flag of a ship carrying cargo, or of the principal place of business of the seller or other terms commonly used in standard contracts. But if the cargo, for example, is to be carried in several ships each flying a different flag, a choice expressed in such general terms can be ineffective.28 19.9 The proper law must be selected at the time of contracting; it is not possible to leave it to one of the parties to nominate such law at a later date.29 This proposition is subject to at least the following two observations. First, choice-of-law clauses have been enforced in circumstances where parties agree to submit to the jurisdiction of any competent court in Australia but then provide that their dispute shall be determined in accordance with the law and practice applicable in such court.30 This has the practical effect of permitting the moving party to select a forum within Australia whose statute law is most favourable to the plaintiff’s cause.31 Second, the parties may by agreement substitute a different legal system for the one originally chosen.32 19.10 An interesting question is whether the selection ought to be the result of the truly free choice of the parties. In many cases, especially in contracts of insurance and transportation, the selection clause is part of a standard contract which is [page 446] presented for the signature of the customer on a ‘take it or leave it’ basis. Could such a clause be regarded as a true expression of the autonomy of the parties? In the United States, where the effects of inequality of bargaining power are often moderated by courts without the assistance of legislation, there is some authority for refusing to give effect to an express selection which was contained in a standard contract made between parties who were unequal in bargaining power, especially in situations where the effect of the selection was to enable the stronger party to escape a liability imposed by the law of the forum.33 In Australia, such a course of action is possible where statute (assuming that the statute is engaged as a matter of its proper construction and notwithstanding the

choice of a law other than for that of the forum) permits review of unfair or oppressive contractual terms,34 or gives a court power to vary or declare void a contractual provision induced by misleading or deceptive conduct, or where, in certain cases, there has been unconscionable conduct.35 The ALRC has recommended that the court should be able to reject a choice-of-law clause whenever the circumstances in which the contract was made would render it unconscionable to enforce it.36 Inequality of bargaining power would be an obvious example.37 On the other hand, in the analogous case of exclusion clauses in standard form contracts, the High Court of Australia in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd38 has signalled a strong disposition to uphold and enforce such clauses at least in cases of signed contracts. 19.11 Where the parties have exercised their liberty to choose a law to govern their contract, questions may arise as to the scope of the parties’ choice. This will be a function of the drafting of the contract. A clause which provides, for example, that ‘this contract shall be interpreted [or construed] in accordance with Ruritanian law’ may, for example, be narrower in scope than a clause which provides that ‘this contract is governed by Ruritanian law’ or that ‘the proper law of this contract is the law of Ruritania’. The former example may, on its proper construction, only pick up the law of Ruritania in relation to the interpretation and construction [page 447] of contracts as opposed to substantive principles of Ruritanian contract law. Where the words used have prima facie a more restricted meaning, the general circumstances surrounding the contract will determine whether the terms used indicate a selection of the chosen law as the proper law of the contract or merely as the law governing a particular aspect of the contract.39 Thus, in Tomkinson v First Pennsylvania Banking and Trust Co40 the House of Lords had occasion to consider an arrangement whereby a Pennsylvania corporation was constituted a trustee for bondholders, mainly resident in the United States, in respect of a loan raised to finance the operations of an English railway company doing business in Cuba. The arrangement was effected by two agreements both of which stated that they were entered into, and executed, in accordance with the law of Cuba for the purpose of filing and registering the agreements in question under the law. Having regard to the general character of the arrangement which was designed for the benefit of creditors resident in the United States under the supervision of

a Pennsylvania corporation, and bearing in mind that at the time of execution of the agreements the institution of trusteeship was unknown to the law of Cuba, the House concluded that the clause referring to the law of Cuba should be construed as referring to that law only for a strictly limited purpose. 19.12 Conversely, the parties may express themselves broadly by providing, for example, not only that ‘this contract shall be governed by the law of country X’ but that ‘the law of [country X] shall govern all disputes under, arising out of or in relation to this contract’, a clause which entails a contractual choice of law for issues going beyond purely contractual matters and which may include, for example, tortious claims which arise out of or are related to the parties’ contractual relationship. Whereas questions concerning the scope of jurisdiction clauses in contracts have been much litigated,41 there has been very little consideration of the issue of the scope of choice-of-law clauses and, in particular, the ability of the parties to choose, ex ante, the law which is to govern non-contractual disputes having their origin in the parties’ contractual relationship, and the efficacy of that choice. While the commercial commonsense of such a course is plain and is supported by principles of contractual autonomy, the matter is problematic because the choice of a law to govern non-contractual disputes as well as contractual disputes may operate to exclude the availability of statutory causes of action arising under the law of a country other than that chosen by the parties in their contract. This may or may not have been a deliberate strategy adopted by the parties. 19.13 This issue was raised but not decided in Clough Engineering Ltd v Oil & Natural Gas Corporation.42The contract in that case contained a widely drawn choice-of-law clause nominating Indian law as the law to govern disputes relating to or arising from the particular contract. Clough sought, in proceedings commenced in the Federal Court of Australia (notwithstanding the existence of an Indian arbitration clause), to invoke the Trade Practices Act 1974 (Cth) in order to escape obligations [page 448] under a performance bond provided for in the parties’ contract. Oil & Natural Gas Corporation argued that Clough had no entitlement to do so for various reasons including the fact that the parties had expressly agreed to Indian law to govern not only contractual disputes but also disputes relating to the contract, the

dispute in question could be so characterised and, as such, it was to be governed by Indian law of which the Trade Practices Act 1974 formed no part. In the event, the court did not resolve this issue. If the argument were to be upheld in a subsequent decision, however, blanket statements to the effect that ‘it is not possible or permissible to “contract out of” the Trade Practices Act’ may need to be reconsidered or qualified, at least in cases of international contracts where, if there is a rational reason for nominating the law of a particular (non-Australian) forum and there is no evidence to suggest that that law has been nominated in order to evade or avoid the operation of an Australian statute, there is a strong public policy in giving effect to that (free) choice made by the parties.43 19.14 A final and perhaps controversial point to be noted is that where the parties have expressly chosen a governing law clause in their contract, it has been held that, unless very clear language is used, such a clause will not be regarded as promissory but merely as declaratory of the intent of the parties.44 One consequence of this analysis is that the commencement of proceedings in a jurisdiction which would not apply the parties’ chosen law would not amount to a breach of contract giving rise to an action for damages nor, in and of itself, furnish a basis for the grant of an anti-suit injunction to restrain a breach of a contractual right, namely a promise that disputes would be governed by the law chosen by the parties and, impliedly, not by the law of any other country.45

Limits on choice 19.15 Assuming that the parties have made their selection, the question then arises whether they can select any legal system they desire. There is some authority in support of the view that the parties can only select a system that has a substantial, though not necessarily predominant, connection with the contract.46 It has been suggested that a selection which is not supported by ‘the realities of the contract’ may well be invalid.47 This may be taken to mean that there must be some physical connection between the country of the chosen system and the subject matter of, or the parties to, the contract. But such an approach is antithetical to the common law’s strong support for autonomy in contractual relations. [page 449] 19.16 On the other hand, Lord Wright in Vita Food Products v Unus Shipping

Co48 considered that ‘[c]onnexion [with the chosen system of law] is not as a matter of principle essential’. And indeed there was no physical connection between the subject matter or the parties to the bill of lading with England, the country of the chosen system, in that case. But there was in that case a reasonable basis for the selection of English law. As Lord Wright pointed out, a reference to English law is common practice in international business transactions even though the parties are not English and the transaction has nothing whatever to do with England.49 19.17 Similarly, in BHP Petroleum Pty Ltd v Oil Basins Ltd,50 there was no objective connection whatever between the subject matter and the chosen law, New York law, in a contract for payment of royalties by a Victorian company to a Bermudan company in Victoria, yet the Supreme Court of Victoria held that the contract was governed by New York law. This case was recently followed in Re Bulong Nickel Pty Ltd51 where it was said: [I]t is entirely open to the parties to a contract to select which system of law should apply to its interpretation. A provision such as cl 12.18(a) to the effect that the indenture should be governed by the law of the State of New York will, generally, be efficacious, even if the association with New York is slight or non-existent: BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725 at 747–8 per Murray J. This case also recognises that there may occasionally be factors present which will lead a court to refuse to allow a choice of law by the parties to operate such as the operation of some fiscal or policy provision of the law which would otherwise apply.

19.18 In shipping transactions, there is often the added consideration that the insurer of the cargo and the ship may be English52 (although with the diversification of insurance and reinsurance markets, this will not now invariably be the case). Thus, a selection of a particular system of law may be justified not merely by physical connection but by common business practice. A particular choice may also be justified where the parties to a contract with connections to several countries choose an unconnected but commercially developed legal system as a ‘neutral’ body of law.53 Finally, one cannot help but remark that to a judge of the forum, the selection by the parties of the law of the forum as the proper law must always appear to be eminently reasonable. In other words, since a court is best equipped [page 450] to apply its own domestic law, it should not query any selection which gives it the opportunity to do so.54

19.19 The better view therefore is that the desirability of the choice should be judged by the parties, not the court, unless (possibly) the circumstances render the choice unconscionable. This is the view adopted in the Rome Convention55 and by the ALRC.56 Nevertheless the Privy Council in Vita Food Products v Unus Shipping Co57 did not mean to imply that the parties had an unfettered freedom of choice. Lord Wright added the following qualification: ‘… provided that the intention is bona fide and legal, and provided there is no reason for avoiding the choice on the ground of public policy’. These words are vague and, insofar as they draw attention to the intention of the parties in making a particular choice, are arguably in tension with the predominant objective theory of contract law which does not look to the subjective intention of the parties in construing contracts. There is only one reported instance where some attempt was made to give them meaning. In Golden Acres Ltd v Queensland Estates Pty Ltd58 an arrangement was entered into in Queensland between a Queensland company and a Hong Kong company concerning the sale on commission of certain land in Queensland. The arrangement contravened the Auctioneers, Real Estate Agents, Debt Collectors and Motor Dealers Acts 1922 to 1961 (Qld). Hoare J interpreted the statute as applying to contracts governed by Queensland law. However, the contract provided that it should be deemed to have been made in Hong Kong which Hoare J interpreted as a choice-of-law clause. Hoare J held that ‘the attempted selection of this law was for no other purpose than to avoid the operation of the Queensland law. Under all the circumstances I conclude that the purported selection of the Hong Kong law was not a bona fide selection’.59 In consequence, he applied Queensland law to the contract. 19.20 The High Court dismissed the appeal from this decision60 but on a ground which rendered the choice of law irrelevant; namely that the Queensland statute on its proper construction applied to all contracts for the sale of Queensland land. Commentators have argued that this is the proper approach to be taken to so-called ‘evasive clauses’: if a mandatory law applies to the contract, it should be applied regardless of the motivations of the parties.61 This is also the approach taken by the Rome Convention62 and the ALRC.63 Mandatory laws are considered later in this chapter. Such statutes typically operate not to prevent a choice of law being made [page 451] nor to vitiate for all purposes the choice of law, where a choice has been made,

nor to deny the existence of a governing law, but rather to override the governing law in the circumstances in which the particular statute is engaged. 19.21 It is clear from the foregoing, however, that the parties have a wide discretion to choose the law applicable to their contract.

Choice of law by inference 19.22 In Akai Pty Ltd v People’s Insurance Co Ltd,64 a majority of the High Court of Australia acknowledged that a choice of law can be inferred from the terms of the contract and the surrounding circumstances.65 Toohey, Gaudron and Gummow JJ said that this is not a matter of implying a term as to choice of law,66 but of inferring by permissible means of construction of the contract whether the parties intended their contract to be governed by reference to a particular system of law.67 This process requires consideration of the terms and nature of the contract and, if necessary, ‘the general circumstances of the case’, meaning the ‘objective framework of facts within which the contract came into existence’.68 If the court concludes, after proper construction of the contract, that the parties have not exercised the liberty given them by the common law to choose the governing law of their contract, it should proceed to apply the rule laid down for the ascertainment of the proper law in the absence of choice.69 19.23 At common law the courts have displayed a willingness to search for an inferred intention even in circumstances where it was unlikely that the parties gave choice of law any thought. Thus, in Amin Rasheed Shipping Corp v Kuwait Insurance Co70 the plaintiff, a Liberian corporation doing business in Dubai in the Persian Gulf, had insured its cargo vessel against war and marine risks under a policy issued by a Kuwaiti company. The policy was in the English language and followed an outmoded form of standard contract using English legal terminology. Claims under the policy were by its terms to be settled in Kuwait but were in practice settled in London. There was no choice-of-law clause. The incident giving rise to the claim occurred in Saudi Arabia. In the House of Lords Lord Diplock, with the concurrence of Lords Roskill, Brandon and Brightman, stated the test to be one of examining the contract ‘in order to see whether the parties have, by its express terms or by necessary implication from the language used, evinced a common intention as [page 452]

to the system of law by reference to which their mutual rights and obligations under it are to be ascertained’.71 In other words, it is a search for the unexpressed intention of the parties which centres primarily on the language and form of the contract. The fact that the parties may have picked up a form ‘off the shelf’ is immaterial. 19.24 Lord Wilberforce in the same case was critical of this approach. In his view: ‘ What has to be done is to look carefully at all those factors normally regarded as relevant when the proper law is being searched for, including of course the nature of the [contract] itself, and to form a judgment as to the system of law with which that policy in the circumstances has the closest and most real connection’.72 In practical terms this means a search for an objective connection not only within the four corners of the contract, but also in the circumstances surrounding the contract such as the residence of the parties, the place of performance and the money of account. 19.25 Lord Diplock’s view (the majority view) was cited with approval by the majority of the High Court of Australia in Akai Pty Ltd v People’s Insurance Co Ltd.73 Toohey, Gaudron and Gummow JJ modified the approach taken by Lord Diplock somewhat by pointing out that in the case of ambiguity of the language used in the contract the process of ascertaining the intention of the parties requires consideration of the surrounding circumstances as well as the terms and nature of the contract.74 19.26 The inclusion in the contract of a clause stipulating that a foreign court or an arbitration tribunal sitting in a foreign country shall have exclusive jurisdiction creates a very strong presumption that the parties have chosen the law of that country unless in the circumstances surrounding the contract there is an overwhelming connection with a legal system other than that of the selected forum.75 It is a question for debate however whether the inclusion of a clause selecting a court or tribunal should by itself be regarded as an expression of choice or merely as a strong pointer to the unexpressed choice of the parties. In John Kaldor Fabricmaker Pty Ltd v Mitchell Cotts Freight (Australia) Pty Ltd76 Brownie J took the latter view. The majority in Akai Pty Ltd People’s Insurance Co Ltd77 appeared to be of the same view, which is clearly correct. [page 453] 19.27 Following the reasoning of Lord Diplock in Amin Rasheed Shipping

Corp v Kuwait Insurance Co it can also be said that the use of a contract with English legal terms may lead to an inference that its proper law is English, but this inference can be rebutted if the circumstances surrounding the contract point to a different legal environment; for example, where the parties to the contract reside, and the contract is to be performed, in countries which follow French law.78

Where a choice of law cannot be inferred 19.28 Where the parties have not expressed any choice and none can be inferred from the terms of the contract, the court should look for ‘the system of law with which the transaction has its closest and most real connection’.79 19.29 This is a hallowed formula without much content. Indeed there are no conclusive presumptions in the search for the unexpressed proper law:80 In an inquiry as to what is the proper law of a contract in which the parties have not expressed their own selection of the law to be applied, many matters have to be taken into consideration. Of these, the principal are the place of contracting, the place of performance, the place of residence or business of the parties respectively, and the nature of the subject matter of the contract. But … the most satisfactory formulation is that the proper law is the one ‘with which the transaction has its closest and most real connection’.

19.30 The enquiry must be made in the light of circumstances as they existed at the time of the formation of the contract. What the parties do or say after the conclusion of the contract (including the place of or circumstances relating to any breach of the contract) cannot be taken into account unless it gives rise to an estoppel.81 However, a change in the contractual arrangements between the parties may lead to a change in the proper law.82 19.31 The search must also be for the system of law rather than the country with which the contract has the closest connection. If the search is for the system of law rather than the country, the form and content of the contract assumes greater importance. Thus, in Amin Rasheed Shipping Corp v Kuwait Insurance Co83 the policy had no connection whatever with England as a country, but it was intimately connected with the English legal system. Consequently, both Lord Diplock84 and Lord Wilberforce85 refer to the ‘legal system’. [page 454]

19.32 It has been argued that the connection should be between the legal system and the transaction underlying the contract rather than the contract itself. This is certainly the view of Lord Wilberforce who pointed out that a contract might be in English legal form but the underlying transaction could be more closely connected with another legal system. It is supported by the decision of the House of Lords in Compagnie Tunisienne de Navigation SA v Compagnie d’ Armament Maritime SA86 where the contract was in English form but the underlying shipping transaction fell wholly within the sphere of French law. However, the majority view in Amin Rasheed Shipping Corp v Kuwait Insurance Co supports the view that it is the contract rather than the transaction which is important, as did the majority of the House of Lords in James Miller & Partners v Whitworth Street Estates (Manchester) Ltd.87 19.33 Of the various factors referred to, the place of contracting is, as Lord Diplock remarked in Amin Rasheed Shipping Corp v Kuwait Insurance Co,88 of little weight in an age of modern telecommunications. This proposition is even more pronounced 40 years on.89 The importance of the place of performance will, as his Lordship remarked, vary with the nature of the contract.90 Thus, in Mendelson-Zeller Inc v T & C Providores Ltd91 a contract for the supply of goods by a Californian seller to an Australian buyer was held to be governed by Californian law because that was the place where the seller was obliged under the CIF (cost, insurance and freight) contract to deliver the goods for shipment.92 Rogers J in that case also considered it relevant that the sale price was expressed in United States dollars. In contrast, in Olex Focas Pty Ltd v Skodaexport Co Ltd,93 a contract by which an Australian bank guaranteed obligations under contracts governed by Indian and Swiss law was held to be governed by Czech law because the place of payment under the guarantee contract was to be in Prague in the Czech Republic.94 On the other hand, in Busst v Lotsirb Nominees Pty Ltd,95 in circumstances where the parties were both resident in Queensland where the contract was also formed and from where the employee was supervised and paid, the fact that the contract was performed (and allegedly breached) in New South Wales did not result in New South Wales law supplying the governing law. [page 455] 19.34 The places of residence or business of the parties usually point in opposite directions. Indeed, in Rothwells Ltd (in liq) v Connell96 the majority of

the Queensland Court of Appeal did not consider it of much weight that most of the parties to the agreement in question were resident in Western Australia. The fact that parties are resident in different forums may be of diminished significance if one is effectively controlled or supervised from the other.97 19.35 The nature and subject matter of the contract can be very relevant. If the contract concerns land, the law of the place where that land is situated can well be the applicable law.98 But there may be countervailing considerations.99 In shipping contracts it would be well to consider the law of the flag.100 It has been suggested that in a borrowing transaction the residence of the lender is of importance,101 though the fact that the borrower is a government instrumentality acting under statutory authority may point in the opposite direction.102 It has been held that the proper law of a letter of credit is that of the place where payment is to be made on behalf of the issuing bank against presentation of documents,103 and that the proper law of the contract between a banker and customer is the law of the place where the account is kept.104 A deed of arrangement is presumed to be governed by the law of the court which approved it.105 19.36 A comparison of the characteristics of the competing legal systems may also be relevant. Thus, the court should consider the relative stability of one system over the other. It has been presumed that one of the reasons why an Egyptian took out a life policy with an Ontario company was his greater confidence in the stability of the law of Ontario.106 19.37 Another factor of great importance is that expressed by Ehrenzweig as follows: Parties entering into a contract want their agreement to be binding upon them, and the law of conflict of laws will assist them whenever it can.107

[page 456] This principle of validation has been invoked to uphold a contract that was invalid according to one of two possible applicable laws.108 But the principle of validation is only a factor to be considered among many others. It can only be decisive in situations where there is established otherwise a substantial connection with the legal system upholding validity and where there are no preponderant factors pointing the other way.109 The upshot of all this is that there is ‘no definite criterion capable of certain application’.110

19.38 To overcome the difficulty of applying a formula of such uncertain content, the Rome Convention in Art 4(2) introduces a rebuttable presumption that ‘the contract is most closely connected with the country where the party who is to effect the performance which is characteristic of the contract has … his habitual residence … or central administration’. The notion of characteristic performance is novel to the common law. It refers to the obligation under the contract other than the payment of money, such as the supply of goods or services.111 The ALRC has recommended the adoption of this concept in Australia for the sake of international uniformity.112 However, since the adoption of this test will favour suppliers of goods and credit, it has recommended that consumer and credit contracts be governed by the law where the consumer was when the contract was entered into, or, if the goods or credit are to be supplied in another state or territory, by the law of that state or territory.113

Mandatory Laws of the Forum 19.39 A contractual choice-of-law clause, like any other clause in a contract, may not be enforced on grounds of public policy where the public policy is considered sufficiently powerful to override parties’ generally respected freedom of contract. In Vita Food Products v Unus Shipping Co,114 Lord Wright expressly referred to the fact that a contractual choice of law may be avoided on the ground of public policy. Such public policy will typically be in the form of a statute of the forum state, although it is critical to emphasise that not every statute of the forum state will be intended to impinge on contractual relations governed by a foreign law. The principle of statutory interpretation noted at 19.3 above, namely that statutory provisions are understood as having no application to matters governed by foreign law, reflects that fact. The principle is, however, only presumptive and will not apply in circumstances [page 457] where the statute manifests a contrary intention. A statute that operates to override what would otherwise be the governing law of the contract, whether or not expressly chosen, inferred or objectively ascertained, is commonly referred to as a mandatory law of the forum.115 19.40 In some cases, the language of a statute will make it plain that it is

intended to apply and to operate irrespective of the parties’ contractual choice of law or where, for example, but for that choice, the contract would be governed by the law of the forum objectively ascertained. A prominent example of such a provision is found in s 11 of the Carriage of Goods by Sea Act 1991 (Cth) which seeks to ensure that a modified version of the provisions of the Hague-Visby Rules applies to all bills of lading and other sea carriage documents for the shipment of goods out of Australia. That section provides in subs (1) that all parties to a sea carriage document (such as a bill of lading or sea waybill) relating to the carriage of goods from a place in Australia to a place outside Australia shall be taken to have intended to contract according to the laws in force at the place of shipment. Subsection (2) declares that any agreement in so far as it purports to preclude or limit the effect of subs (1) shall have no effect. An Australian court faced with a situation which falls within the terms of those provisions is bound to ignore the selection of any law other than that of the place of shipment.116 19.41 The decision of the House of Lords in The Hollandia117 suggests that, even without such a provision, an English court would not today allow parties to ‘contract out of’ uniform rules imposed by international conventions, at least where those conventions are given the force of law by enacting legislation. In the past, however, English courts have been prepared to allow parties to contract out of the Hague Rules where the shipment was to, rather than from, an English port.118 The Hague Rules were not then given the force of law by enacting legislation, however; they were merely incorporated compulsorily into the contracts they governed. The modern legislation enacting the Hague-Visby Rules in both Australia and the United Kingdom gives the force of law to the convention. 19.42 Section 11 of the Carriage of Goods by Sea Act 1991 (Cth) displaces the choice of law itself. More commonly, a statute of the forum will provide that its provisions are to apply to contracts the proper law of which is that of the forum objectively ascertained, notwithstanding the choice of a foreign legal system.119 Provisions of this kind do not invalidate any choice of the proper law; they merely override it insofar as they apply to the contract. They exclude all indicators from which the parties’ intention about governing law can be inferred. Thus, in Akai Pty Ltd v People’s Insurance Co Ltd,120 a majority of the High Court of Australia held that s 8(2) of the Insurance Contracts Act 1984 (Cth) required the court to ignore any evidence of the parties’ choice of a governing law, including a clause referring

[page 458] all disputes to English courts. Furthermore, the majority held that the provisions found in s 52(1) of the Insurance Contracts Act 1984 (Cth) precluded the evasion of the protection given by the Act through a choice of a foreign forum.121 A similar approach is likely to be taken to an attempt to avoid the mandatory consumer warranties in the Australian Consumer Law.122 19.43 In New South Wales, s 7(1) of the Contracts Review Act 1980 (NSW) allows a court to refuse to enforce, avoid in whole or in part, or vary in whole or in part any contract (or provision thereof) which it finds to have been ‘unjust in the circumstances relating to the contract at the time it was made’. Section 17(3) makes the provisions of the Act applicable to contracts of which the law of New South Wales is the proper law, or which would have been that of New South Wales but for the selection of the law of some other place. This means that the Act applies notwithstanding the choice of the parties, if the proper law of the contract objectively ascertained is that of New South Wales.123 19.44 Considerable difficulty may arise in circumstances where the parliamentary draftsman has not adverted to the intended impact of the legislation in question on contracts governed by foreign law, with the consequence that the legislation is silent and the court has precious little to guide it in seeking to discern whether or not the principle of statutory interpretation articulated in Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society124 applies or is rebutted, with the consequence that the statute attracts the ‘mandatory law’ epithet. 19.45 There are some types of legislation which, notwithstanding the absence of a manifested legislative intention, have been customarily held to be mandatory in character and to apply irrespective of the choice of a governing law other than that of the forum. Labour or employment legislation frequently falls into this category. Thus, in Old UGC Inc v Industrial Relations Commission of New South Wales in Court Session,125 it was said that ‘the central conception upon which the relevant provisions fasten is the performance of work in an industry and [where] the work in question was performed within the jurisdiction, no question of reading down the operation of the section according to territorial limitations arises’. In the same case, Kirby J said: The Court of Appeal rejected the submission that the nomination of the proper law of the impugned contract as that of Colorado placed that contract outside the jurisdiction of the Commission to grant relief under s 106 in respect of it … It would be astonishing if the opposite were the case, given the

remedial purposes of s 106 of the IR Act. A contrary rule would leave the statutory provisions open, in many cases, to easy evasion by the simple nomination of a governing law other than that of New South Wales. In many cases, in the new economy, such a device could not be easily impugned. From the earliest days of the consideration of the predecessors to s 106, both in the Commission itself and in this Court, Judges have resisted the notion that, by ‘clever drafting’ or otherwise, the legislation could be rendered ineffective by

[page 459] such verbal devices. It is unlikely in the extreme that evasion of this kind would have been contemplated by the New South Wales Parliament. This is an obvious reason why the common law rule of construction, limiting legislation addressed to contracts as normally applicable only to those whose proper law is that of the jurisdiction, does not apply in the case of s 106 of the IR Act.126

19.46 Another method of overriding choice-of-law clauses is found in state consumer protection and credit legislation which is made applicable if either the contract is entered into in the forum or goods or services are supplied in the forum, thereby making choice-of-law clauses irrelevant.127 19.47 It was never authoritatively determined whether or not the Trade Practices Act 1974 (Cth) could be invoked or would be construed as applying in circumstances where relief was sought under s 87 of that Act in relation to a contract governed by a law other than Australian law. That remains the case under the Australian Consumer Law 2010 and its various state analogues modeled on the Trade Practices Act 1974. The better view is that such legislation does not apply to contracts which, objectively considered, are governed by the law of a foreign country, or, in the case of state legislation, by the law of another Australian jurisdiction.128 Where an Australian party has tendered for an international contract on terms which include a foreign choice-of-law clause freely agreed to by the parties, for example, it is difficult to see why one of those parties should be entitled to invoke an Australian statute such as the Trade Practices Act 1974 to claim relief in respect of the contract in circumstances where that statute does not form part of the chosen law. This is especially so in circumstances where there are rational reasons why the chosen law has been chosen and there is no evidence or suggestion of any attempt to ‘evade’ the operation of a local law.129 19.48 The contrary view is that parties may not ‘contract out of’ such legislation, and that a choice of a foreign law which has this effect (whether intended or not) is therefore ineffective to exclude the operation of those statutes.130 This view is tantamount to a characterisation of those statutes as

mandatory laws of the forum. This view is arguably undermined by the absence131 in such legislation of [page 460] familiar drafting techniques such as employed in the Carriage of Goods by Sea Act 1991 (Cth) and the Insurance Contracts Act 1984 (Cth). The use of the familiar statutory formulation in s 67 of the Trade Practices Act 1974 and the Australian Consumer Law 2010, confined as it is to ‘consumer contracts’, may suggest that the other provisions of the Act such as those providing remedies for contravention of misleading and deceptive conduct provisions were not intended to be mandatory in the private international law sense of overriding an otherwise legitimately chosen proper law of the contract (at least in circumstances where Australian law would not otherwise have governed the contract). The competing views as to the relationship and interaction between the Trade Practices Act 1974, its successor and analogues, on the one hand, and a contract governed by a foreign proper law, on the other hand, are finely balanced, and await authoritative determination at an intermediate or the ultimate appellate level.132 19.49 The forum is not concerned with the mandatory law of another jurisdiction unless its law is the proper law of the contract.133 This applies even if the mandatory law is that of another Australian state.134 The ALRC, following the example of the Rome Convention, has recommended that there be an obligation to apply the mandatory law of another state or territory if the law of that jurisdiction would be the proper law of the contract but for a choice-of-law clause. If the objective proper law of the contract is that of a foreign country, its mandatory law should also apply if under the foreign law the application of the mandatory law cannot be excluded by a choice-of-law clause.135

The Creation of the Contract136 Capacity to enter into a contract 19.50 Despite earlier dicta in favour of the lex loci contractus,137 and the lex domicilii,138 modern textwriter opinion favours almost unanimously the proper law of the

[page 461] contract.139 An arguably more sophisticated approach sees a role for the law of the forum in conjunction with the proper law of the contract, given the logical dilemma presented by the fact that the party asserting a lack of capacity will inevitably be contending that no valid contract came into existence.140 19.51 There are three decisions in support of the proper law of the contract. The first is the decision of the Ontario Court of Appeal in Charron v Montreal Trust Co.141 In that case the court upheld the validity of a separation agreement made between husband and wife in Ontario by applying the proper law of the contract, which was the law of Ontario, even though under the law of Quebec, which was alleged to be the domicile of the husband throughout, the husband could not lawfully have entered into such an agreement. The court assumed without explanation that this raised an issue of capacity rather than a mere prohibition of conduct. 19.52 In The Bodley Head Ltd v Flegon142 Brightman J had to consider the argument that the Russian author Solzhenitsyn, who, in the Soviet Union where he was then resident and domiciled had executed a power of attorney to a Swiss lawyer for use in Western Europe, lacked the capacity under Soviet law to do so. His Lordship was not satisfied that Soviet law imposed an incapacity on the author, but in any event took the view that the capacity of Solzhenitsyn to grant the power of attorney was to be tested by Swiss law as the proper law of the contract. There is little doubt that Australian courts would have taken a similar view had the issue arisen before them. 19.53 In Homestake Gold of Australia Ltd v Peninsula Gold Pty Ltd,143 a novel scheme to defeat a compulsory takeover of a company involved ‘warehousing’ shares by transferring them to minors.144 One question raised was whether binding contracts could be made between the promoter of the scheme and the various minors. Because some of the minors were resident in Australia, some in the United Kingdom and some in New Zealand, the court was required to choose the law governing the minors’ capacity to contract. After considering the comparative merits of applying the proper law of the contract, the lex loci contractus or the lex domicilii, Young J chose to follow Charron and applied the proper law of the contract: New South Wales law. 19.54 Given that capacity to contract is governed by the proper law, could a party gain capacity by selecting an appropriate law? Could, for instance, an 18-

year-old New Zealander gain contractual capacity by agreeing that the law of New South Wales shall govern the contract? The learned editors of Dicey, Morris & Collins state that the capacity of a person to enter into a contract must be governed by [page 462] the proper law objectively ascertained.145 The learned authors of Sykes and Pryles take another view: that any choice of law by the parties should be given effect to, unless the circumstances render it unconscionable to do so.146 The ALRC has accepted their view and recommended that capacity either according to the law of the relevant party’s residence or the proper law of the contract (including any such law selected by the parties) should suffice to make a valid contract.147 19.55 In some circumstances capacity under the proper law may not be enough. Since our courts will not render judgments that are ineffective, they will not enforce a contract for the transfer of an interest in an immovable situated abroad if according to the lex situs the alienor lacked capacity.148

The formalities of the contract 19.56 All legal systems prescribe a certain form for specific transactions. These requirements serve one of two distinct purposes. One such purpose is to secure acceptable evidence of the transaction. Non-compliance does not render the transaction a nullity, but unless the evidence of the transaction can be produced in the form prescribed, the court cannot enforce it. Thus, the Statute of Frauds 1677 provided in ss 1, 3, 4 and 17 that ‘no action shall be brought upon’ certain types of agreement ‘unless the agreement, or some memorandum or note thereof, shall be in writing’. This was interpreted in Leroux v Brown149 as not affecting the intrinsic validity of such agreement if it was not in writing, but as merely rendering it unenforceable for lack of evidence. Other examples are found in modern stamp duty legislation. The sanction for failure to pay the duty is to render the document inadmissible in evidence. The consequences of such omissions have until now been classified as matters of procedure which is governed exclusively by the law of the forum.150 19.57 In other cases the requirement of form is more than a mere matter of

evidence. It goes straight to the question of the validity of the contract. An example is the common law requirement that a promise made without consideration should, in order to create a binding obligation, be in the form of a deed. The deed is not merely evidence of the obligation; it represents the obligation. Another example is seen in the requirement of many foreign countries that certain types of contract be notarised. 19.58 Originally the English courts treated the question of formal validity together with all other aspects of the contract as governed by the lex loci contractus.151 Though [page 463] the lex loci has now been replaced by the proper law, it still remains good law that a contract formally valid according to the place of contracting will be recognised as formally valid in the forum.152 However, a contract which is in the form prescribed by the proper law will also be upheld.153

Offer and acceptance 19.59 Assume that A in New South Wales has made an offer to B in Switzerland which B has accepted by posting a letter in the latter country. The letter is lost in the mail. According to the law of New South Wales there is a contract, but since under Swiss law acceptance must actually have reached the offeror, there is no contract if Swiss law were applicable. 19.60 Only two solutions have a claim to acceptance by our courts. One is the application of the law of the place of contracting: the other is the application of the proper law. Both solutions face the same preliminary logical difficulty: how can a court determine the existence of a contract by a legal system which obviously cannot be selected until the court has come to the conclusion that a contract has in fact come into existence? 19.61 This problem is solved by assuming the validity of the contract solely for the purpose of determining the legal system that would determine its existence. This solves the problem so far as the selection of the proper law is concerned. However, if one takes the view that the question of formation depends upon the law of the place of contracting, there arises another problem. If one accepts, as do most systems, that the place of contracting is the place where the last act

necessary to make the contract binding is performed,154 then the determination of the place of contracting may depend upon the very question of substance that the court may have to decide. 19.62 The answer to this conundrum would be, no doubt, that the forum would determine the place of contracting according to its own law.155 Hence, the answer to the above problem would be that the place of contracting is Switzerland. Applying Swiss law the court would then hold that no contract came into existence. The place of contracting may, of course, be purely fortuitous. It becomes all the more a lottery when the forum, which may or may not have any connection with the contract, is to decide according to its domestic law what is the place of contracting. 19.63 It is for this reason that it is urged that the proper law should determine the question whether the offer has been accepted. Support for this can be found in the reasoning of AH Simpson CJ in Equity in the early New South Wales decision of White Cliffs Opal Mines Ltd v Miller.156 In that case the Government of New South Wales had made an offer to an English company for the purchase of a mine situated in New South Wales and owned by the English company. The government made a [page 464] final offer by letter stating that the offer would remain open until 30 June 1902. On 30 June at 3.55pm, Greenwich time, the directors in London sent a telegram accepting the offer. By that time it was 1.55am, 1 July in Sydney. The learned judge found that the correspondence indicated that the law of New South Wales was to be taken as governing the contract. Consequently, the reference to 30 June 1902 had to be construed by the law of New South Wales and since the acceptance had not been received by 30 June 1902, Sydney time, there was no binding contract. The decision is clear authority for the proposition that the putative proper law, whether chosen by the parties or not, can be invoked to determine whether an offer can be accepted and, in consequence, whether a contract exists at all. 19.64 There has been a series of decisions in England which definitely support the proposition that the putative proper law of the contract determines whether the parties have reached agreement. In Albeko Schuhmaschinen AG v The Kamborian Shoe Machine Co Ltd,157 Salmon J indicated obiter his support for

the contention that the putative proper law should determine whether an offer has been accepted. In The Parouth158 the Court of Appeal held that an English court, as the court of the putative proper law, was best suited to determine whether a series of telex messages had resulted in a contract. A similar approach was adopted by the House of Lords in Union Transport plc v Continental Lines SA.159 This is also the solution recommended by the ALRC.160 19.65 However, in Australia there now are obiter dicta made by Brennan and Gaudron JJ in Oceanic Sun Line Special Shipping Co Inc v Fay161 supporting the proposition that the question whether a contract has come into existence should be determined by the law of the forum.162 Although this view has some attraction, the application of Australian law to a contract concluded in a foreign context could obviously lead to injustice.163 In World of Technologies (Aust) Pty Ltd v Tempo (Aust) Pty Ltd,164 Jessup J adverted to this question, referring to the observations of Brennan J and Gaudron J in Oceanic Sun and noting that Deane J considered that the question should be determined under the law of the place where the contract was made (lex loci contractus)165 and that Wilson and Toohey JJ did not refer to the matter as such, but still proceeded to determine the question whether there was a contract, on the basis either that the lex fori applied or that the lex loci contractus applied. As is often the case, Jessup J did not need to resolve this question as the parties led no evidence of foreign law and the presumption that its content was the same as the law of the forum was invoked. [page 465]

Reality of consent 19.66 It is convenient at this stage to accept the distinction drawn by Diplock LJ in Mackender v Feldia AG166 between an ‘agreement’ which requires no more than a consensus ad idem between the parties and a ‘contract’ which is a legally enforceable agreement. 19.67 As Diplock LJ pointed out, the question of whether an agreement constitutes a legally enforceable contract is a question for the proper law of that agreement to determine. In Mackender v Feldia AG it was alleged that a policy of insurance issued in London by English underwriters covering the defendants who were diamond merchants in Belgium was unenforceable for illegality, or alternatively, voidable at the option of the plaintiff for non-disclosure of material

facts. The Court of Appeal held that these were questions for Belgian law to determine since the parties had agreed that Belgian law should be the proper law of the contract, and both issues concerned the question of enforceability of the agreement rather than the existence of the agreement itself. Similarly, the House of Lords has held in Dimskal Shipping Co SA v International Transport Workers Federation167 that the question of whether a concluded agreement is voidable for economic duress applied by the defendant trade union against the plaintiff through industrial action in a Swedish port was a matter for English law as the proper law of the contract to determine. 19.68 Since there was no doubt in Mackender v Feldia AG that the parties had reached an agreement, the Court of Appeal was not concerned with determining the law governing the initial question of whether there is an agreement at all. However, Diplock LJ did say:168 Where acts done in England, in this case the oral negotiations between the assured’s broker and the underwriters, the initialling of the slip and the signing of the policy, are alleged not to have resulted in an agreement at all (ie where there is a plea of non est factum) and the question is whether there was any real consensus ad idem, it may well be that this question has to be determined by English law and not by the law that would have been agreed by them as the proper law of the contract if they had reached an agreement.

19.69 It is not clear whether his Lordship would have applied English law as the lex loci contractus as the opening words of the passage suggest, or as the putative proper law which had been urged by counsel before him. Nevertheless, Gaudron J in Oceanic Sun Line Special Shipping Co Inc v Fay169 relied on the statement to support the proposition that ‘all questions which are necessarily antecedent to a determination of the proper law of the contract must fall for answer in accordance with the lex fori’. This of necessity includes the question of whether the parties reached a consensus ad idem. 19.70 There is a strong argument, favoured in Dicey, Morris & Collins, on the other hand, to the effect that all questions of reality of consent, including questions of fraud, duress, misrepresentation and undue influence, and the question of whether [page 466] the contract exists at all, fall to be determined by the putative proper law.170 This proposition is in line with the English cases on formation of contract discussed above. This reflects the position in the Rome Convention171 and is also the

recommendation of the ALRC.172

Consideration 19.71 There is authority for the proposition that the question of whether consideration is, or is not, essential to establish the existence of a contract is determined by the proper law of the contract. In Re Bonacina173 an offer to pay a certain amount of money which was not supported by consideration was nevertheless held to be enforceable in England because Italian law, which governed the relationship between the promisor and promisee, did not require consideration for a promise to be binding. A choice-of-law clause would most likely be taken into account in determining the proper law for this purpose, provided the choice-of-law was not made in circumstances which rendered it unconscionable to enforce it, or was contrary to a mandatory law of the forum.

The Validity, Continuance, and Effect of the Contractual Obligation The enforceability of the transaction The proper law 19.72 In line with what has been stated before, the question of whether an agreement gives rise to legally enforceable rights and liabilities must be determined by the proper law of the contract. This law determines whether a contract is unenforceable for illegality or can be avoided on grounds such as innocent misrepresentation or failure to make disclosure of relevant facts.174

The law of the forum 19.73 Legality or enforceability under the law of the forum is not by itself required. Thus, a wagering contract, although unenforceable by the domestic law of the forum, may nevertheless be enforced in the forum if it is valid by the proper law.175 But the effect of a particular agreement being unenforceable under the law of the forum may in some cases have to be considered by the proper law. In Trendtex Trading Corp v Credit Suisse176 the House of Lords was faced with an agreement expressed to be

[page 467] governed by Swiss law by which, inter alia, the appellant had purported to assign to the respondent its English cause of action against a third party. The House held that assignment to be void as offending against the English public policy against champertous agreements.177 It was clear that a Swiss court would have to accept that the English cause of action could not be assigned. Nevertheless, their Lordships granted a stay of proceedings, thereby referring the question of the enforceability of the agreement and the effect of the failure effectively to assign the cause of action upon the rights of the parties to the jurisdiction of the Swiss courts. 19.74 A contract governed by whatever law will not be enforced if it offends against a statute of the forum extending to the situation before the court.178 This is an instance of a mandatory law of the forum overriding a proper law,179 and the applicability of the forum statute will depend upon its proper construction and, in particular, the question whether, as a matter of that construction, it was intended to apply to a contract governed by foreign law.

The law of the place of performance 19.75 It was said by Lord Wright in R v International Trustee for the Bondholders AG180 that ‘an English court will not enforce a contract where performance of the contract is forbidden by the law of the place where it must be performed’. The rule in this form has been accepted as orthodoxy.181 Its application would mean that an Australian court, whenever it was seized of litigation, would excuse performance of the obligation if such performance was illegal as from the beginning or had become illegal by subsequent change of the law under the law of the place of performance, regardless of the proper law of the contract and the effect which such illegality would have under the proper law. Conversely, a contract that is unlawful under the proper law is not saved by the fact that it was lawful under the law of the place of performance.182 19.76 The decision normally cited in support of the rule is that of the Court of Appeal in Ralli Bros v Cia Naviera Sota y Aznar.183 That case concerned a charterparty governed by English law under the terms of which the freight was to be paid in Spain. Spanish law restricted the maximum amount that could be paid in terms of pesetas. The freight price was below that figure at the time of contracting but as a result of currency fluctuations exceeded the maximum

allowed by Spanish law at the time payment was due. The court held that the shipowners could only recover up to the amount allowed by Spanish law. Scrutton LJ said:184 [page 468] … where a contract requires an act to be done in a foreign country, it is in the absence of very special circumstances, an implied term of the continuing validity of such provision that the act to be done in the foreign country shall not be illegal by the law of that country.

19.77 This statement is much more limited in scope than that of Lord Wright in R v International Trustee for the Bondholders AG.185 In the first place, it purports to state a rule of English law, which was the proper law of the contract. Whether it should be regarded as a rule of the English law of contract or as a term implied by English law in a contract, is a matter for debate.186 In the second place, the illegality under Spanish law supervened and it was a question of the continuing validity of the provision.187 19.78 There probably is not much relevance in the latter issue, but there is much to be said for the proposition that the effect of illegality under the law of performance should be determined by the proper law of the contract.188 Some systems may excuse performance, others may require a substituted performance or place of performance. A somewhat similar solution was adopted by the House of Lords in Trendtex Trading Corp v Credit Suisse, as discussed above. It also goes without saying that where it is contended that the performance is illegal under the law of the place of performance, that contention needs to be proved by cogent evidence.189 19.79 Whatever may be the correct position, the conduct must be illegal by the law of the place of performance and have occurred or otherwise would have occurred in the territory of that country.190 The fact that, as a necessary preliminary to the performance of the obligation in the contractual place of performance, the debtor may have to break the law of another country will not excuse performance.191 Nor is it relevant that a party to a contract which has been lawfully performed in the place of performance intends to use the goods the subject of the contract for an illegal purpose in another country, for example, to evade import duty.192 19.80 Furthermore, it is necessary to distinguish between cases where a party seeks to enforce performance that would be illegal in the place of performance,

and cases where a party seeks counter-performance in return for performance that has already taken place, albeit illegally under the laws of the place where it was done. In the [page 469] former type of case, the interests of comity may require the forum court not to order someone to do something that is illegal in the place where it is to be done. The latter type of case is different. There, the only question is whether the illegal performance taints the performing party’s right to demand counter-performance. 19.81 In Re O’Connor’s Bill of Costs,193 the Supreme Court of Queensland enforced a contract, governed by Queensland law, under which a solicitor sought payment for services that he had performed illegally in New South Wales, where he was not admitted to practise law. Derrington J said that although some kinds of illegality in another state or country would be such as to disentitle the performing party from enforcing rights under the contract, the illegality in the present case did not fall into that category.194 19.82 In contrast, a majority of the Court of Appeal in Royal Boskalis Westminster NV v Mountain195 said that English law will not enforce a contract at the behest of a party who knows and intends that it will be performed in a way that is illegal in the place where it is to be performed. Phillips LJ disagreed, saying that the principle of comity whereby the court will not enforce a contract that involves breach of the law of the place of performance does not extend to requiring the court not to recognise the effect of a contract that has been performed in such a manner.196 19.83 The principle that illegality under the law of the place of performance is an excuse must be distinguished from the related principle that the forum will not enforce an agreement if both parties intend a breach of the law of a friendly foreign country as part of their contractual arrangement.197 If such joint intention is present, the contract will not be enforced even though the illegal act is a preliminary to otherwise lawful performance,198 or the illegal conduct is to follow the lawful delivery of the goods.199

The law of the place of contracting 19.84 Illegality under this law is not relevant. It is true that Lord Halsbury LC

in Re Missouri Steamship Co200 made a statement to the effect that illegality according to the law of the place of contracting would affect the validity of the contract even though the proper law was that of another country. But in the Missouri case itself [page 470] it was held that, English law being the proper law of the contract, an English court need not take any notice of the fact that under the law of Massachusetts, where the contract had been entered into, the agreement was void for being contrary to local public policy. More recently the issue arose in The Bodley Head Ltd v Flegon201 where it was alleged that the author Solzhenitsyn had broken the law of the Soviet Union in executing in that country a power of attorney to a Swiss lawyer for use in Western Europe. Brightman J considered Soviet law to be irrelevant and upheld the legality of the transaction by reference to Swiss law as its proper law. 19.85 A fortiori, no other system such as the law of nationality or domicile can have a claim to application. Conversely, the legality of the contract under the law of the place of contracting will not sustain it, if it is illegal under the proper law.202

Construction and extent of the obligation 19.86 The purpose of the construction of the contract is to ascertain the intention of the parties from the terms of the document. If the terms of the document, or any part thereof, are expressed in a foreign language or use foreign legal terms, the meaning of that language or those terms must be ascertained according to the system from which they were taken, whatever may be the proper law. This can involve the application of that foreign law. Thus, in Forsikrings A/S Vesta v Butcher203 a contract of re-insurance governed by English law repeated in identical terms a clause found in the original contract of insurance, which was governed by Norwegian law. The meaning of that clause differed depending on whether English or Norwegian law applied. 19.87 All judges agreed that the Norwegian interpretation was the correct one. The judges in the courts below had sought to achieve that aim by ‘splitting’ the proper law of the clause from that of the rest of the contract. The House of Lords

treated the problem as one of translation. The parties clearly intended the clause in the English contract to have the same meaning as in the Norwegian contract. Hence, it should be ‘translated’ first with the aid of a Norwegian legal dictionary.204 This is a question of translation rather than construction. 19.88 Should the contract be conflicting, ambiguous or incomplete, the intention of the parties must be ascertained according to the rules of construction of the proper law.205 Thus, a question may arise about the exact meaning of a time limit inserted in the contract,206 or as to whether a later clause used in the same document overrides a former inconsistent clause.207 19.89 Once a contract has been interpreted and found valid in form and substance, the extent of its rights and obligations must be ascertained. Thus, a question may [page 471] arise as to the liability of a carrier for the loss of, or damage to, the goods carried,208 or the power of the master of a ship to sell the cargo,209 or the extent of an agent’s authority under a power of attorney.210 This once more is a matter for the proper law.

Performance 19.90 The basic principle was stated by Lord Simonds in Bonython v Commonwealth as follows:211 The mode of performance of the obligation may, and probably will be determined by [the law of the place of performance]; the substance of the obligation must be determined by the proper law of the contract.

19.91 Unfortunately, judges have not always been clear as to what is meant by ‘the mode of performance’. There are decisions that suggest that ‘the mode of performance’ includes matters which really determine the measure of performance, such as the question in what currency the obligation of the parties should be measured,212 or the question whether the contractual liability could be measured by reference to a gold standard.213 As Fullagar J pointed out in Goldsbrough Mort v Hall,214 the question whether a particular matter is one of substance must be viewed realistically by judging the impact of a decision on the

rights and obligations of the parties. The question whether $100 refers to A$100 or US$100 is obviously a matter of substance in this sense, while the question whether the $100 should be paid in banknotes or in coins is clearly a matter of performance.215 19.92 The question whether a party to the contract is excused from performance is obviously a matter of substance and hence for the proper law to determine.216 If supervening forces make performance of the contract impossible their effect on the legal obligation to perform depends on the proper law and not on the law of the place of performance.217 If performance is rendered impossible by the law of the place of performance, that law must be taken into account in assessing its practical effect on the possibility of performance, but it is for the proper law to determine [page 472] what effect, if any, the impossibility of performance has upon the relationship of the parties as a matter of law.218

The variation and extinction of obligations 19.93 The reference to the proper law is a reference to a living system of law. Since that law gave rise to the obligation, it also determines whether the obligation is to be modified or extinguished.219 Thus, if the proper law by a supervening statute provides for a reduction in the contractual rate of interest, the forum must give effect to it.220 If the proper law provides for the annulment of an obligation originally validly created by it, the forum will consider the obligation extinguished.221 In extreme cases, no doubt, the forum may be entitled to refuse recognition to such a law on the ground of public policy.222 But the mere fact that the foreign legislation has taken away, without compensation, rights validly created under pre-existing law would not be a bar to recognition.223 19.94 The converse proposition is equally true: ‘ The principle is that for the discharge to be good, it must extinguish the obligation according to the law which gives rise to it’.224 And, one might add, what is true of the discharge of the obligation is equally true of the variation of the obligation.225 19.95 To this proposition there are of necessity certain exceptions. In the first

place, a supervening law of the forum may prohibit its courts from giving effect to the obligation, though its proper law is not that of the forum. A similar situation would arise where a supervening event, such as the outbreak of war between the forum and the country in which one of the parties was a resident, rendered the contract unenforceable by reason of public policy.226 19.96 A more difficult question arises out of the assignment of the rights and obligations of creditors and debtors respectively. Assignment of the right to receive a debt creates fewer difficulties. This does not affect the substance of the debtor’s obligation and, therefore, is to be treated as falling under the heading of [page 473] assignment of property,227 rather than as a matter affecting the continued existence of an obligation. 19.97 A more difficult situation arises where one debtor is substituted for another. The common law does not consider this as a case of assignment of property, but as a novation whereby a new agreement is entered into with a third party ‘who undertakes the liability of the contract and is accepted by the creditor in the place of the original contractor or debtor’.228 19.98 Where the novation of the contractual obligation has been brought about as the result of the agreement of the parties concerned, there are in fact two separate contracts. The court is, therefore, faced with two distinct problems. The first one is whether the liability of the old debtor has been effectively discharged under the proper law of the existing contract. The second question is whether the new contract has been validly created under its proper law, which may or may not coincide with the proper law of the first contract.229 19.99 The problem is more complicated in a situation where the contractual obligation is transferred from A to B by force of a law which is not part of the proper law of the contract. Where the law in question purports to transfer the obligation as such, that is, by providing that the debt owed till then by A shall now be owed by B, it is now established that such a transfer of the obligation would not be recognised by the forum as effective to discharge the old debtor. The fact that the law which purports to transfer the obligation is the law of the place of situation of the debt would make no difference.230 19.100 Though it is established that the old debtor cannot be relieved of the

obligation except by the proper law, the question remains open whether a statutory transfer of the obligation according to the proper law of the new debt would be effective to render the new debtor liable as well. The proper law of the new obligation may well be that of a different country. This problem is best solved by proceeding on the analogy of contract. Though the statute operates despite the consent of the parties, it does in effect create something analogous to a contractual relationship.231 Hence, the law that has the closest and most real connection with the parties to, and the subject matter of, the new obligation should determine the liability of the new debtor.232 19.101 In some cases, however, the contractual obligation may effectively be transferred by replacing the legal personality of A with that of B. In other words, it may be provided that on A ceasing to exist as a legal person, B shall become the universal successor to the totality of A’s rights and obligations. This situation arises mainly with regard to corporations. It is clear that while the question of continuance of the contractual obligation is a matter for the proper law of the contract, the [page 474] question of the continued existence of an artificial legal person is a question for the law that created it. If that law destroys the debtor, it becomes irrelevant to speak of the continued existence of the debt.233 19.102 If, in addition to destruction, the law of incorporation of the old entity creates a new entity for the purpose of investing it with all the rights and liabilities of the former, the forum will recognise that new entity as standing in the shoes of the old.234

Remedies for breach 19.103 Although there are certain obiter dicta that suggest that the extent of the remedy and the circumstances in which it can be granted are matters for the lex fori,235 the prevailing position was stated by Duff J for the Supreme Court of Canada in Livesley v Horst:236 It is most important to observe that it is not the foreign agreement to which effect is given by English law but … it is the civil or legal right generated by the contract. The right of action as Willis J said in Phillips v Eyre (1870) LR 6 QB 1 at 28, is a creature of the law by which the contract is

governed.

19.104 Though this passage is expressed in the language of the now unpopular ‘vested rights’ theory, the point made remains unassailable: the parties have given their agreement legal efficacy by relating it to a particular legal system; the nature of the remedies on breach is a most important part of this ‘legal efficacy’. His Lordship continued: On principle, since it is the right created by the contract and not the agreement itself which is enforced, there would appear to be no pertinent distinction between rights arising under terms implied by law (ie the rights of enforcement created by the proper law) and rights arising by force of the general law from express stipulations inter partes formally embodied in the record of the agreement.

19.105 On the other hand, as Duff J pointed out,237 the procedure of enforcement is not part of the obligations created by the contract and consequently falls to be determined by the law of the forum. 19.106 The question therefore whether the plaintiff is entitled to relief and, if so, what type of relief, should primarily be determined by the proper law of the contract.238 If the type of relief is other than an action for damages the question may well arise whether the forum has the machinery to enforce it.239 If the plaintiff under the foreign law is entitled to damages, then the proper law must determine whether [page 475] any particular head of damage is too remote,240 and whether the amount of damages recoverable is limited.241 The quantification (sometimes referred to as ‘assessment’) of that damage, traditionally regarded as a matter of procedure and hence governed by the lex fori,242 is now treated as substantive: see 16.16 above.

The Vienna Convention on Contracts for the International Sale of Goods243 19.107 Australia acceded on 1 April 1989 to the United Nations Convention on Contracts for the International Sale of Goods concluded in Vienna in 1980. This convention seeks to provide uniform rules on the formation of a contract for the international sale of goods244 and on the rights and obligations of the seller and

buyer in such contracts.245 It does not deal with questions affecting the validity of the contract or any of its provisions, or with the effect the contract may have on the property in the goods sold.246 Nor does it deal with the liability of the seller for death or personal injury caused by the goods to any person.247 19.108 In situations to which the convention applies and in which it provides express rules, the need for conflicts law is obviated.248 To the extent of its application, the convention, as implemented municipally,249 may be seen to operate as a mandatory law of the forum,250 although it is open to the parties to expressly exclude or contract out of the operation of the Convention.251 Situations to which the convention applies but where it does not provide express rules are to be settled in conformity with the general principles of the convention or ‘in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law’.252 19.109 The Convention has been implemented by legislation passed in each of the states and territories that provides that the terms of the Convention shall prevail over any provision of local law and is to have the force of law in those states [page 476] and territories253 (although Art 6 permits parties to exclude the application of the convention or, subject to one limited exception, to derogate from or vary the effect of any of its provisions). Under Art 1, the convention applies to contracts of sale of goods between parties whose places of business are in different states: (a) when the states are contracting states; or (b) when the rules of private international law lead to the application of the law of a contracting state; that is, when the proper law is that of a contracting state. Contracting states include important trading countries such as Canada, China, Germany, Italy, the United States, Russia, Singapore, Sweden and Austria. If the transaction falls within the scope of the convention its rules apply unless the parties in their agreement have excluded them either in whole or in part.254 19.110 The primary connecting factor is the place of business of the parties, not their residence, nationality or domicile.255 If a party has more than one place of business, regard must be had to the place that has its closest connection with the contract and its performance.256 If a party does not have a place of business, reference is made to the habitual residence.257 However, the fact that parties

have places of business in different states must appear from the contract or from any dealings between or from information disclosed by the parties at any time before the conclusion of the contract.258 19.111 The convention does not apply to sales of goods bought for personal, family or household use unless the seller before or at the conclusion of the contract was not aware nor ought to have been aware of the proposed use of the goods. Nor does it apply to goods sold by auction, the sale of stocks, shares, investment securities, negotiable instruments or money, the sale of ships or aircraft, or of electricity.259 The sale of raw materials is included unless the buyer proposes to supply a substantial part of the materials to be used in manufacture, but contracts for the sale of goods which involve a substantial contribution of labour or other services are excluded.260 19.112 The convention applies to the formation of a contract only when the proposal for a contract is made after the date on which the contracting state(s) by virtue of whose law the convention has become applicable, joined the convention. In relation to the obligation of seller and buyer, the convention must be in force on or before the date of conclusion of the contract.261 19.113 In commercial terms, one of the most significant of the provisions is Art 79 which provides that: [page 477] (1) A party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences. (2) If the party’s failure is due to the failure by a third person whom he has engaged to perform the whole or a part of the contract, that party is exempt from liability only if: (a) he is exempt under the preceding paragraph; and (b) the person whom he has so engaged would be so exempt if the provisions of that paragraph were applied to him. (3) The exemption provided by this article has effect for the period during

which the impediment exists. (4) The party who fails to perform must give notice to the other party of the impediment and its effect on his ability to perform. If the notice is not received by the other party within a reasonable time after the party who fails to perform knew or ought to have known of the impediment, he is liable for damages resulting from such non-receipt. (5) Nothing in this article prevents either party from exercising any right other than to claim damages under this Convention. ____________________ 1.

[1984] AC 50 at 65.

2.

Hamlyn & Co v Talisker Distillers [1894] AC 202 at 207; Libyan Arab Foreign Bank v Bankers Trust Co [1989] 1 QB 728 at 747; cf Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society (1934) 50 CLR 581 at 604 per Evatt J. See also Olex Focas Pty Ltd v Skodaexport Co Ltd [1998] 3 VR 380 at 395; Rataplan Pty Ltd v Federal Commissioner of Taxation (2004) ATC 4,801 at 4,808.

3.

Tomkinson v First Pennsylvania Banking and Trust Co [1961] AC 1007. See further Nygh, Autonomy in International Contracts, Oxford University Press, Oxford, 1999, pp 133–6.

4.

(1934) 50 CLR 581 at 604.

5.

Kahler v Midland Bank Ltd [1950] AC 24 at 42. Rataplan Pty Ltd v Federal Commissioner of Taxation (2004) ATC 4,801 provides an example of the presumption being rebutted, it there being held that, although a contract of loan was governed by Australian law (meaning Australian common law and federal and state statutory law where applicable), nonetheless the consequences of a conversion transaction by which the debt was converted to capital in the borrowing company were governed by Texan law. The crucial question then was whether the conversion transaction amounted to a valid waiver under Texan law. If so (as was held to be the case), there was a ‘disposal’ for the purposes of the Australian Income Tax Assessment Act 1936 and thus an allowable deduction by the company which had advanced the loan.

6.

See 19.15ff below.

7.

See 19.22ff below.

8.

See 19.28ff below.

9.

See 19.39ff below.

10. Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society (1934) 50 CLR 581 at 601 per Dixon J: ‘[I]n the absence of any countervailing consideration, the principle is, I think, that general words should not be understood as extending to cases which, according to the rules of private international law administered in our Courts, are governed by foreign law’. See also Mynott v Barnard (1939) 62 CLR 68 at 79 where Latham CJ said: ‘In special cases, in the absence of any other clear indication of the intention of parliament, the governing law of a contract may be selected as the best practicable means of determining the territorial application of a statute which is essentially a statute dealing with contracts …’. See also, for an application of this principle, KA & C Smith Pty Ltd v Ward (1998) 45 NSWLR 702 in which it was held that the Restraints of Trade Act 1976 (NSW) only applied to contracts governed by the law of New South Wales. 11. See, for example, Chubb Insurance Co of Australia Ltd v Moore [2013] NSWCA 212.

12. As regards the choice of international law or the lex mercatoria, see Nygh, 1999, Ch 8. 13. Vita Food Products Inc v Unus Shipping Co [1939] AC 277 at 291. 14. This is the position adopted by Art 15 of the Rome Convention, as adopted in the United Kingdom by the Contracts (Applicable Law) Act 1990: see 19.5. See also Re United Railways of the Havana and Regla Warehouses Ltd [1960] Ch 52 at 97; Amin Rasheed Shipping Corporation v Kuwait Insurance Co [1984] AC 50 at 61–2. 15. (2005) 223 CLR 331. See also the discussion of this issue at Chapter 15. 16. Or, for that matter, including them (although this is unlikely to be a commercially attractive course). 17. See Contracts (Applicable Law) Act 1990 (United Kingdom) and the legislative history set out in Dicey, Morris & Collins on the Conflict of Laws, Thomson Sweet & Maxwell, London, 15th ed, 2012, at [32-009] ff; and Cheshire, North and Fawcett, Private International Law, 14th ed, Oxford University Press, Oxford, 2008, p 667ff. 18. Rome Convention Art 1(1) applies the rules of the convention to any situation falling within the scope of the convention ‘involving a choice of law between different countries’; that is, whether parties to the convention or not. 19. ALRC Report No 58, 1992, Choice of Law, Ch 8. 20. Rome Convention Art 3(1). 21. ALRC Report No 58, 1992, Choice of Law, para 8.9. See also Restatement of the Conflict of Laws, Second, American Law Institute, 187; and Nygh, 1999. 22. Dobell v SS Rossmore Co Ltd [1895] 2 QB 408. 23. [2004] 1 WLR 1784 at [51]. 24. (2007) 98 SASR 402 at 409 per Doyle CJ. 25. Under the Rome Convention and the Contracts (Applicable Law) Act 1990 (United Kingdom) (see 19.5 above), the only law which English courts may apply as the governing law is the law of a country. It may not, for example, be a religious law: see, for example, Musawi v RE International (United Kingdom) Ltd [2007] EWHC 2981 at [23]. 26. Musawi v RE International (United Kingdom) Ltd [2008] 1 Lloyd’s Rep. 326 at [19]; Halpern v Halpern [2008] QB 195, but cf Al Midani v Al Midani [1999] 1 Lloyd’s Rep 923; Al-Bassam v AlBassam [2002] EWHC 2281. 27. Dunbee Ltd v Gilman & Co Pty Ltd (1968) 70 SR (NSW) 219. In Olivaylle Pty Limited v Flottweg AG (2009) 255 ALR 632, the parties chose ‘Australian law applicable under exclusion of UNCITRAL law’. The reference to UNCITRAL was held to be reference to the Vienna Convention on the International Sale of Goods which was incorporated into the law of Victoria by the Sale of Goods (Vienna Convention) Act 1987 (Vic). The express choice-of-law clause operated to exclude or carve out the operation of that Act from the otherwise applicable and expressly chosen law. 28. Compagnie Tunisienne de Navigation SA v Compagnie D’ Armament Maritime SA [1971] AC 572. 29. Dubai Electricity Co v Islamic Republic of Iran Shipping Lines (The Iran Vojdan) [1984] 2 Lloyd’s Rep 380 at 385. 30. HIH Casualty and General Insurance Ltd (in liq) v RJ Wallace (2006) 68 NSWLR 603 at 611; AIG (United Kingdom) Ltd v QBE Insurance Europe Ltd [2008] QSC 308. See also The Star Texas [1993] 2 Lloyd’s Rep 445, as discussed in A Briggs, Agreements on Jurisdiction and Choice of Law, Oxford University Press, Oxford, 2008, at [3.56]. 31. AIG (United Kingdom) Ltd v QBE Insurance Europe Ltd [2008] QSC 308 was arguably such a case. See also King v Brandywine Reinsurance Co (United Kingdom) Ltd [2004] 2 Lloyd’s Rep 670;

Commercial Union Assurance Co Plc v NRG Victory Reinsurance Ltd [1998] 1 Lloyd’s Rep 80; BP plc v National Union Fire Insurance Co [2004] EWHC 1132. 32. Libyan Arab Bank v Bankers Trust Co [1989] QB 728 at 746 per Staughton J. 33. Fricke v Isbrandtsen Co (1957) 151 F Supp 465 (SDNY), but see contra Siegelman v Cunard White Star Ltd (1955) 221 F 2d at 189; Gamer v Dupont Glore Forgan Inc (1976) 65 Cal App 3d 280. The question is discussed in Ehrenzweig, ‘Adhesion Contracts in the Conflict of Laws’ (1953) 53 Col LR 1072 at 1081. There is probably no absolute rule against adhesion contracts: see Cavers, The Choice-ofLaw Process, University of Michigan Press, Ann Arbor, 1965, p 195. 34. For example, Contracts Review Act 1980 (NSW) s 7(1). 35. Relief from an unconscionable choice-of-law clause could arguably be obtained under the remedial provisions of the Australian Consumer Law (‘ACL’) (and its state analogues) assuming that the clause in question did not operate in such a way that the ACL was not engaged. This will depend on the proper interpretation of the ACL and the question whether or not it is a mandatory law of the forum, intended to operate even on [contractual] relationships governed by foreign law: see 19.39ff below. The ACL may also not apply for other reasons such as where, for example, the allegedly unconscionable or misleading or deceptive conduct has been engaged in abroad by a foreign company (and thus is outside of the scope of the ACL), or where the contract, by its putative proper law (that is, the law that would apply but for the parties’ express choice), is not Australian law. This last possibility should be regarded as an open question. 36. ALRC Report No 58, 1992, Choice of Law, para 8.25. See also Royal Boskalis Westminster NV v Mountain [1999] QB 674 at 729 per Phillips LJ. 37. ALRC Report No 58, 1992, Choice of Law, paras 8.22–8.24. 38. (2004) 219 CLR 165. 39. Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 441 per Toohey, Gaudron and Gummow JJ. 40. [1961] AC 1007. 41. See 7.69ff above. 42. (2008) 249 ALR 458 at [45]. 43. See in this context Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45 at [8]. See also SR Luttrell, ‘Public Policy Conflicts in the Arbitrability of the Trade Practices Act 1974 (Cth) — A Comment on Clough Engineering’ (2007) MacqJBL 139. 44. Ace Insurance Limited v Moose Enterprise Pty Limited [2009] NSWSC 724 at [47], [51]. Cf A Briggs, 2008, at [11.45]–[11.58]. 45. Ace Insurance Limited v Moose Enterprise Pty Limited [2009] NSWSC 724. 46. Re Helbert Wagg & Co [1956] Ch 323 at 341; Kay’s Leasing Corp v Fletcher (1964) 64 SR (NSW) 195 at 205 per Walsh J. 47. Queensland Estates Pty Ltd v Collas [1971] Qd R 75 at 80–1 per Hoare J. 48. [1939] AC 277 at 290. 49. More recently in Beximco Pharmaceuticals Ltd v Shamil Bank of Bahrain [2004] 1 WLR 1784 at [54], Potter LJ said: ‘English law is a law commonly adopted internationally as the governing law for banking and commercial contracts, having a well-known and well developed jurisprudence in that respect which is not open to doubt or disputation on the basis of religious or philosophical principle’. His Lordship was comparing English law to Sharia law which it was unsuccessfully argued was the applicable law in that case.

50. [1985] VR 725 at 747 per Murray J. 51. [1985] VR 725 at 747 per Murray J. 52. Per Lord Wright in Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277 at 290. See also Mann, ‘ The Proper Law of the Contract’ (1950) 3 ILQ 60 at 66–7; and Restatement of the Conflicts of Laws, Second § 187(2)(a). 53. British Controlled Oil Fields v Stagg [1921] WN 319. In Akai Pty Ltd v People’s Insurance Company (1996) 188 CLR 418, evidence was led at first instance that English law was chosen because the Australian company (Akai) did not want Singapore law and the Singaporean insurer did not want Australian law. 54. Barcelo v Electrolytic Zinc Co (1932) 48 CLR 391 at 434–5 per Evatt J. 55. Rome Convention Arts 1(1), 3(1). 56. ALRC Report No 58, 1992, Choice of Law, para 8.12. See also Nygh, 1999, pp 55–60; Royal Boskalis Westminster NV v Mountain [1999] QB 674 at 729. 57. [1939] AC 277. 58. [1969] Qd R 378. This case was referred to by Brereton J in Ace Insurance Limited v Moose Enterprise Pty Limited [2009] NSWSC 724 at [52]. 59. See note 58 above at 385. 60. Sub nom Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418. 61. See comment by Kelly in (1970) 19 ICLQ 701; Fawcett, ‘Evasion of Law and Mandatory Rules in Private International Law’ (1990) 49 Cambr LJ 44; Nygh, 1999, pp 68–9; and see further at 19.28ff below. 62. Rome Convention Art 7. 63. ALRC Report No 58, 1992, Choice of Law, para 8.13. 64. (1996) 188 CLR 418. 65. See also Rome Convention Art 3(1); ALRC Report No 58, 1992, Choice of Law, para 8.9. 66. If it were, the court would have to apply the five requirements for implying contract terms laid down by the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 282–3. 67. (1996) 188 CLR 418 at 441–2. 68. See note 67 above, at 441, quoting the phrase ‘general circumstances of the case’ from Compagnie Tunisienne de Navigation SA v Compagnie d’ Armament Maritime SA [1971] AC 572 at 595 per Lord Wilberforce, and referring to Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 347–53 per Mason J (see esp at 352) for the meaning of the phrase in the context of contractual construction. 69. Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 442 per Toohey, Gaudron and Gummow JJ; and see 19.28ff below: 70. [1984] AC 50. 71. See note 70 above, at 61. 72. See note 70 above, at 71. 73. (1996) 188 CLR 418. 74. See note 73 above, at 441, citing the remarks of Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 347–53 (a case involving domestic law only).

75. Compagnie Tunisienne de Navigation SA v Compagnie d’ Armament Maritime SA [1971] AC 572; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 224–5 per Brennan J; Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 442 per Toohey, Gaudron and Gummow JJ. Cf Star Shipping AS v China National Foreign Trade Transportation Corp (The Star Texas) [1993] 2 Lloyd’s Rep 445 (arbitration clause gave no assistance in selecting proper law when parties had choice of countries for arbitration, or authorised arbitrator to choose the applicable law in default of parties’ choice). 76. (1989) 18 NSWLR 172 at 187. 77. (1996) 188 CLR 418 at 442 per Toohey, Gaudron and Gummow JJ: ‘[S]ubmission in the contract to the exclusive jurisdiction of the tribunals of a particular country … may be taken as an indication of the intention of the parties that the law of that country is to be the proper law of the contract’. 78. Compagnie Tunisienne de Navigation SA v Compagnie d’ Armament Maritime SA [1971] AC 572. 79. Bonython v Commonwealth [1951] AC 201 at 219 per Lord Simonds. A similar test is found in the Rome Convention Art 4(1) and its retention is recommended in ALRC Report No 58, 1992, Choice of Law, para 8.38. 80. Jenkins LJ in Re United Railways of the Havana and Regla Warehouses Ltd [1960] Ch 52 at 91. See also Mount Albert Borough Council v Australasian Temperance & General Mutual Life Assurance Soc [1938] AC 224 at 240 per Lord Wright; The Assunzione [1954] P 150 at 178 per Singleton LJ, 180 per Birkett LJ. 81. Miller v Whitworth Street Estates (Manchester) Ltd [1970] AC 583 at 615 per Lord Wilberforce; Busst v Lotsirb Nominees Pty Ltd [2003] 1 Qd R 477; Fleming v Marshall (2011) 279 ALR 737 at [83]. 82. Libyan Arab Foreign Bank v Bankers Trust Co [1989] 1 QB 728 at 746 per Staughton J. 83. [1984] AC 50. 84. See note 83 above, at 61. 85. See note 83 above, at 71. 86. [1971] AC 572. 87. [1970] AC 583 (Lords Hodson, Guest and Dilhorne). 88. [1984] AC 50 at 60. See also John Kaldor Fabricmaker Pty Ltd v Mitchell Cotts Freight (Australia) Pty Ltd (1989) 18 NSWLR 172. 89. Fleming v Marshall (2011) 279 ALR 737 at [63]–[66]. 90. There will always, also, be at least two acts of performance in a bilateral contract, the place of which may not coincide. Thus, party A may perform work in country X but be paid or not paid (as the case may be) by party B in country Y. See, for example, Provida Pty Ltd v Sharpe [2012] NSWSC 1041 at [24]–[26]. 91. [1981] 1 NSWLR 366. 92. See also Laminex (Aust) Pty Ltd v Coe Manufacturing Co [1999] NSWCA 370 (FOB contract between Oregon seller and Australian buyer, made in Oregon, requiring payment to be made in Oregon and delivery of goods for shipment in Oregon held to be governed by Oregon law). 93. [1998] 3 VR 380. 94. Compare Credit Lyonnais v NH Insurance Co [1997] 2 Lloyd’s Rep 1, where the court presumed that an insurance contract with no choice-of-law clause was governed by the law of the place where the risk was situated. 95. [2003] 1 Qd R 477.

(1993) 119 ALR 538 at 544–5 per Fitzgerald P and Williams J, but see the doubts expressed by 96. MacPherson JA at 555. 97. Rataplan Pty Ltd v Federal Commissioner of Taxation (2004) ATC 4,801 at 4,808. 98. Merwin Pastoral Co Ltd v Moolpa Pastoral Co Pty Ltd (1933) 48 CLR 565 at 576 per Dixon J. See, for example, State Bank of New South Wales v Sullivan [1999] NSWSC 596 (mortgage contract made in New South Wales, mortgagor and mortgagee bank based in New South Wales, place of payment New South Wales, held to be governed by Queensland law because mortgaged land in Queensland). See also Rome Convention Art 4(3); ALRC Report No 58, 1992, Choice of Law, para 8.49. 99. Re a Mortgage J to A [1933] NZLR 1512. 100. Coast Lines Ltd v Hudig & Veder Chartering NV [1972] 2 QB 34. 101. Tomkinson v First Pennsylvania Banking & Trust Co [1961] AC 1007 at 1068 per Lord Denning. Compare State Bank of New South Wales v Sullivan [1999] NSWSC 596 (mortgage lender in New South Wales, mortgaged land in Queensland, proper law held to be Queensland law). 102. Mount Albert Borough Council v A/sian T & G Mutual Life Assce Soc [1938] AC 224. 103. Power Curber International Ltd v National Bank of Kuwait [1981] 3 All ER 607. 104. Libyan Arab Bank v Bankers Trust Co [1989] 1 QB 728 at 746 per Staughton J. The position is the same under the Rome Convention Art 4: see Sierra Leone Telecommunications Co Ltd v Barclays Bank plc [1998] 3 All ER 821. 105. Rothwells Ltd (in liq) v Connell (1993) 119 ALR 538 at 544 per Fitzgerald P and Williams J. 106. Rossano v Manufacturers Life Insurance Co [1963] 2 QB 352 at 369 per McNair J. 107. Ehrenzweig, ‘Contracts in the Conflict of Laws’ (1959) 59 Col LR 973 at 988. 108. Sayers v International Drilling Co NV [1971] 3 All ER 163; Coast Lines Ltd v Hudig & Veder Chartering NV [1972] 2 QB 34; Monterosso Shipping Co Ltd v International Transport Workers’ Federation (The Rosso) [1982] 2 Lloyd’s Rep 120; Islamic Arab Insurance Co v Saudi Egyptian American Reinsurance Co [1987] 1 Lloyd’s Rep 315. 109. Permanent Trustee Co (Canberra) Ltd v Permanent Trustee Co of NSW Ltd (1969) 14 FLR 246 at 254 per Fox J. 110. McClelland v Trustees Executors Agency Co (1936) 55 CLR 483 at 493 per Dixon J. 111. Cheshire, North and Fawcett, 2008, pp 711–19. 112. ALRC Report No 58, 1992, Choice of Law, para 8.48. 113. See note 112 above, para 8.71. 114. [1939] AC 277; and see 19.19 above. 115. See definition of ‘mandatory law’ in Rome Convention Art 3(3). See also, Nygh, 1999, Ch 9. 116. Compagnie des Messageries Maritimes v Wilson (1954) 94 CLR 577. 117. [1983] AC 565. 118. Ocean Steamship Co v Queensland State Wheat Board [1941] 1 All ER 158 at 161. 119. For example, Trade Practices Act 1974 (Cth) s 67 (in relation to ‘consumer contracts’ as defined in the Act); Insurance Contracts Act 1984 (Cth) s 8(2). 120. (1996) 188 CLR 418. 121. See note 120 above, at 447–8. 122. See s 67(b) which can be interpreted as invalidating any attempt, including a choice-of-forum clause, to

avoid the application of the statutory warranties. 123. For a criticism of the provision, see (1980) 54 ALJ 572–3. 124. (1934) 50 CLR 581 at 601. See 19.3 above. 125. (2006) 225 CLR 274 at [55]–[56]. 126. See note 125 above, at [23]. For a review of all relevant authorities and many instances of the application of this principle in an industrial relations context, see Tryam Pty Ltd v Grainco Australia Ltd (2003) 142 IR 243. See also R McCallum ‘Conflict of Laws and Labour Law in the New Economy’ (2003) 16 Australian Journal of Labour Law 50. 127. For example, Credit Act 1984 (NSW) s 3(l)(a); Credit Act 1987 (Qld) s 5(1); Consumer Transactions Act 1982 (SA) ss 3, 6; Credit Act 1984 (Vic) s 3(1). See also Begg, ‘Consumer Credit Law Reform and Uniformity’ (1985) 10 Adel LR 138. 128. Gosper v Sawyer (1985) 160 CLR 548. See, for example, State Bank of New South Wales v Sullivan [1999] NSWSC 596 (proper law of mortgage contract, objectively ascertained, held to be Queensland law so Contracts Review Act 1980 (NSW) did not apply); Janesland Holdings Pty Ltd v Simon [2000] ANZ Conv R 112 (proper law of mortgage contract, objectively ascertained, held to be Australian Capital Territory law so Contracts Review Act 1980 (NSW) did not apply). 129. Clough Engineering Ltd v Oil & Natural Gas Corporation (2008) 249 ALR 458 at [45]. See also also SR Luttrell, ‘Public Policy Conflicts in the Arbitrability of the Trade Practices Act 1974 (Cth) — A Comment on Clough Engineering’ (2007) MacqJBL 139. 130. Green v Australian Industrial Investment Ltd (1989) 25 FCR 532. 131. Other than in the case of consumer contracts: see s 67 of the Trade Practices Act 1974 and the Australian Consumer Law 2010. 132. The arguments were noticed in Clough Engineering Ltd v Oil & Natural Gas Company of India (2008) 249 ALR 458 at [45] but did not need to be determined in that case. 133. Vita Food Products v Unus Shipping Co [1939] AC 277; Akai Pty Ltd v People’s Insurance Co Ltd [1998] 1 Lloyd’s Rep 90 (English court applied English law to insurance contract, ignoring effect of Insurance Contracts Act 1984 (Cth) s 8(2) and the majority decision of the High Court of Australia in Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418). Compare The Al Battani [1993] 2 Lloyd’s Rep 219 at 224, where Sheen J suggested that an English court might recognise the effect of Egyptian legislation on a contract governed by English law, because of ‘the comity of nations’. 134. Rothwells Ltd (in liq) v Connell (1993) 119 ALR 538 at 543–6 per Fitzgerald P and Williams J. 135. Rome Convention Art 7(2); ALRC Report No 58, 1992, Choice of Law, para 8.35. 136. For cases to which the Vienna Convention on the International Sale of Goods, as implemented in state and territory legislation, applies (see 19.108ff below), questions concerning the formation of a contract are governed by the convention in which the role of the proper law is overridden. The convention is given the force of law. 137. Male v Roberts (1800) 3 Esp 163 at 164. 138. Sottomayor v De Barros (No 1) (1877) LR 3 PD 1 at 5. 139. Dicey, Morris & Collins, 2012, Ch 32 (with the law of the domicile or residence as validating alternatives); Cheshire, North and Fawcett, 2008, p 751; Falconbridge, Selected Essays on the Conflict of Laws, 2nd ed, Canada Law Book Co, Ontario, 1954, pp 384–5; Schmitthoff, English Conflict of Laws, 3rd ed, Stevens & Sons, London, pp 112–13. 140. These arguments have already been more fully explored in the context of jurisdiction agreements in 7.13 above. See also at 19.59–19.65 below.

141. (1958) 15 DLR (2d) 240. 142. [1972] 1 WLR 680. 143. (1996) 131 FLR 447; 20 ACSR 67. 144. The minors or their guardians were usually given a small amount of money or a free ham, thus giving the case its popular name, the ‘Ham Scam Case’. 145. Dicey, Morris & Collins, 2012, Rule 228. 146. Sykes and Pryles, Australian Private International Law, 3rd ed, Methuen, LBC, Sydney, 1991, p 614. 147. ALRC Report No 58, 1992, Choice of Law, paras 8.58. 148. Bank of Africa Ltd v Cohen [1909] 2 Ch 129. 149. (1852) 12 CB 801; 138 ER 1119. 150. Davis v Federal Commissioner of Taxation (1989) 86 ALR 195; Rothwells Ltd (in liq) v Connell (1993) 119 ALR 538 at 545–6 per Fitzgerald P and Williams J, 552 per MacPherson JA. See the discussion of substance and procedure in Chapter 16. 151. Bristow v Sequeville (1850) 5 Exch 275; 155 ER 118. 152. Re Dunn; Ex parte Andrew (1981) 35 ALR 466 at 471 per Lockhart J. 153. See note 152 above. See also Rothwells Ltd (in liq) v Connell (1993) 119 ALR 538 at 544 per Fitzgerald P and Williams J. 154. WA Dewhurst & Co Ltd v Cawrse [1960] VR 278. 155. Entores Ltd v Miles Far East Corp [1955] 2 QB 327; Mendelson-Zeller Co Inc v T and C Providores Pty Ltd [1981] 1 NSWLR 366 at 369 per Rogers J. 156. (1904) 4 SR (NSW) 150. 157. (1961) 111 LJ 519. 158. [1982] 2 Lloyd’s Rep 351. 159. [1992] 1 WLR 15 at 23 per Lord Goff of Chieveley. 160. ALRC Report No 58, 1992, Choice of Law, para 8.59. 161. (1988) 165 CLR 197 at 225 per Brennan J, 261 per Gaudron J. 162. These dicta were applied by Rein J in Venter v Ilona MY Ltd [2012] NSWSC 1029 in applying Australian law to determine whether or not certain standard terms of one of the parties had been incorporated into the parties’ contract. 163. Sykes and Pryles, 1991, pp 612–13. 164. [2007] FCA 114 at [75]–[76]. 165. (1988) 165 CLR 197 at 255. 166. [1967] 2 QB 590 at 601. 167. [1992] 2 AC 152. 168. [1967] 2 QB 590 at 602–3. 169. (1988) 165 CLR 197 at 261. See also at 225 per Brennan J. 170. Dicey, Morris & Collins, 2012, at [32-067]. 171. Art 8(1). 172. ALRC Report No 58, 1992, Choice of Law. See further Nygh, 1999, pp 92–7.

173. [1912] 2 Ch 394. 174. Mackender v Feldia AG [1967] 2 QB 590. 175. Saxby v Fulton [1909] 2 KB 208; Harold Meyers Travel Service Ltd v Magid (1977) 15 OR (2d) 1. 176. [1982] AC 679. 177. Compare Preussag Immobilien GmbH v Harriss (SC (NSW), 17 December 1998, unreported) where the Supreme Court of New South Wales held that an assignment under German law of a cause of action did not offend against the New South Wales policy against champerty. 178. Kay’s Leasing Corp v Fletcher (1964) 116 CLR 124. 179. See 19.39 above. 180. [1937] AC 500 at 519. 181. Dicey, Morris & Collins, 2012, at [32-097]. 182. Dimskal Shipping Co SA v International Transport Workers Federation [1992] 2 AC 152 at 168 per Lord Goff of Chieveley. 183. [1920] 2 KB 287. 184. See note 183 above, at 304. 185. [1937] AC 500 at 519. 186. Dicey, Morris & Collins, 2012, at [32-099]–[32-100]. See also Toprak v Mahsulleri Ofisi v Finagrain [1979] 2 Lloyd’s Rep 98 at 114 per Lord Denning MR; Euro-Diam Ltd v Bathurst [1990] 1 QB 1 at 14 per Staughton J. 187. It has been argued that the case is properly understood to be one in which the contract was frustrated by supervening events: see FA Mann (1937) 18 BYIL 97. The judgments of Lord Sterndale MR and Warrington LJ lend more support to this view than does that of Scrutton LJ. 188. Compare Royal Boskalis Westminster NV v Mountain [1999] QB 674, where the Court of Appeal held that a contract valid by its proper law requiring performance that was illegal by the law of the places of performance was unenforceable. The court did not inquire into whether the proper law (Iraqi law) would consider the illegality under the law of the place of performance to be relevant. 189. Gilsan (International) Ltd v Optus Networks Pty Limited [2004] NSWSC 1077 at [280], [291]–[297]; Optus Networks Pty Limited v Gilsan (International) Limited [2006] NSWCA 171 at [85]–[97]. 190. Euro-Diam Ltd v Bathurst [1990] 1 QB 1 at 23 per Staughton J. This statement was not doubted in the Court of Appeal, see above at 30ff. 191. Topak v Finagrain [1979] 2 Lloyd’s Rep 98; Libyan Arab Bank v Bankers Trust Co [1989] 1 QB 728. 192. Euro-Diam Ltd v Bathurst [1990] 1 QB 1. 193. [1993] 1 Qd R 423. 194. Cannon Street Pty Ltd v Karedis [2007] 1 Qd R 505 at [33] is, in a sense, the converse case. There, Williams JA held that ‘where the court is concerned with a New South Wales solicitor appearing and conducting a case in the Supreme Court of Queensland exercising federal jurisdiction, and where the practitioner’s right to so act is governed by the provisions of the Judiciary Act 1903, the provisions of the Queensland Law Society Act 1952 … have no application. The client agreement and the costs agreement is between the solicitor and client in New South Wales, and New South Wales law is the proper law of that contract’. 195. [1999] QB 674. 196. See note 195 above at 735.

197. In Royal Boskalis Westminster NV v Mountain [1999] QB 674, the Court of Appeal raised but did not answer the question whether it is necessary for both parties to have that intention or whether it is sufficient that one of them has. 198. Regazzoni v Sethia Ltd [1958] AC 301. 199. Foster v Driscoll [1929] 2 KB 287. 200. (1889) 42 Ch D 321 at 336. 201. [1972] 1 WLR 680. 202. Dimskal Shipping Co SA v International Transport Workers Federation [1992] 2 AC 152 at 168 per Lord Goff of Chieveley. 203. [1989] 1 AC 852. 204. See note 203 above, at 911–12 per Lord Lowry. 205. Permanent Trustee Co (Canberra) Ltd v Permanent Trustee Co of NSW Ltd (1969) 14 FLR 246 at 254 per Fox J. 206. White Cliffs Opal Mines Ltd v Miller (1904) 4 SR (NSW) 150. 207. Ocean Steamship Co v Queensland State Wheat Board [1941] 1 KB 402. 208. Vita Food Products Inc v Unus Shipping Co [1939] AC 277. 209. The Industrie [1894] P 58. 210. Chatenay v Brasilian Submarine Telegraph Co [1891] 1 QB 79. 211. [1951] AC 201 at 219. 212. Adelaide Electric Supply Co v Prudential Assurance Co [1934] AC 122 at 145 per Lord Tomlin; Auckland Corporation v Alliance Assurance Co [1937] AC 587 at 606 per Lord Wright. 213. British and French Trust Corporation v New Brunswick Ry Co [1937] 4 All ER 516. 214. [1948] VLR 145 at 152. 215. In some instances the distinction may be less clear cut. A rule which gives a debtor seven days’ grace after the due date may have a real, though limited, effect on the parties’ rights and obligations, yet it would generally be regarded as affecting the mode of performance only. Wolff, Private International Law, 2nd ed, Clarendon Press, Oxford, 1950, p 455 suggests that the antithesis should be main obligation versus obligation concerning the details of performance. 216. Other than in cases to which the Vienna Convention on the International Sale of Goods, as implemented in state and territory legislation, applies (see 19.108ff below) in which the role of the proper law is overridden as the convention is given the force of law. 217. Jacobs v Credit Lyonnais (1884) 12 QBD 589. In the context of the Vienna Convention, see Art 79 (19.114 below). 218. Libyan Arab Bank Inc v Bankers Trust Co [1989] 1 QB 728 at 749; Nile Co for the Export of Agricultural Crops v H & JM Bennett (Commodities) Ltd [1986] 1 Lloyd’s Rep 555 at 581. 219. In cases to which the Vienna Convention on the International Sale of Goods, as implemented in state and territory legislation, applies (see 19.107ff below), the role of the proper law is overridden as the convention is given the force of law. 220. Barcelo v Electrolytic Zinc Co (1932) 48 CLR 391. As to whether it is possible for the parties to agree to ‘freeze’ the law at a given point of time, see Nygh, 1999, pp 63–6. 221. Merwin Pastoral Co v Moolpa Pastoral Co (1933) 48 CLR 565; McClelland v Trustees Executors & Agency Co (1936) 55 CLR 483; Re Helbert Wagg & Co Ltd [1956] Ch 323.

222. Re Helbert Wagg & Co Ltd [1956] Ch 323 at 349 per Upjohn J. 223. Merwin Pastoral Co v Moolpa Pastoral Co (1933) 48 CLR 565 at 587. 224. See note 223 above at 573 per Rich and Dixon JJ. See also Gibbs & Sons v La Société Industrielle et Commerciale des Metaux (1890) 25 QBD 399; Société Eram Shipping Co Ltd v Cie Internationale de Navigation [2004] 1 AC 260. 225. Wanganui-Rangitikei Electric Power Board v AMP Soc (1934) 50 CLR 483; Gosper v Sawyer (1985) 160 CLR 548. 226. Ertel Bieber & Co v Rio Tinto Co [1918] AC 260. 227. See Chapter 33 below. 228. Robinson v Podosky [1905] St R Qd 118 at 122 per Chubb J. 229. Re United Railways of the Havana and Regla Warehouses Ltd [1960] Ch 52. 230. See note 229 above. 231. De Nicols v Curlier (No 1) [1900] AC 21. 232. Wolff, 1950, p 458, approved by Jenkins LJ in Re United Railways of the Havana and Regla Warehouses Ltd [1960] Ch 52 at 84. 233. Adams v National Bank of Greece [1961] AC 255 at 281. 234. National Bank of Greece & Athens SA v Metliss [1957] AC 509 at 525 per Viscount Simonds. See, for example, Preussag Immobilien GmbH v Harriss (SC (NSW), 17 December 1998, unreported). 235. Hansen v Dixon (1906) 23 TLR 56 at 57; Kremezi v Ridgway [1949] 1 All ER 662 at 664. 236. [1925] 1 DLR 159 at 161. This statement was endorsed, in relation to the recovery of damages in contract, in Stevens v Head (1992) 176 CLR 433 at 458 per Brennan, Dawson, Toohey and McHugh JJ. 237. See note 236 above. 238. Again, this is subject to qualification in cases to which the Vienna Convention on the International Sale of Goods, as implemented in state and territory legislation, applies (see 19-107ff). The role of the proper law is overridden as the convention is given the force of law. 239. Phrantzes v Argenti [1960] 2 QB 19. 240. D’ Almeida Araujo Lda v Sir Frederick Becker & Co Ltd [1953] 2 QB 329. 241. Allan J Panozza & Co Pty Ltd v Allied Interstate (Q) Pty Ltd [1976] 2 NSWLR 192. 242. D’ Almeida Araujo Lda v Sir Frederick Becker & Co Ltd [1953] 2 QB 329. 243. See H Lutz ‘ The CISG and Common Law Courts: Is there Really a Problem?’ [2004] VUWLR 28; (2004) 35 VUWLR 711; and L Nottage ‘ Who’s Afraid of the Vienna Sales Convention (CISG)? A New Zealander’s View from Australia and Japan’ [2005] VUWLRev 39; (2005) 36 VUWLR 815. 244. United Nations Convention on Contracts for the International Sale of Goods (the ‘ Vienna Sales Convention’ or CISG) Pt II. 245. See note 244 above Pt III. 246. See note 244 above Art 4. 247. See note 244 above Art 5. 248. See Winship,‘Private International Law and the UN Sales Convention’ (1988) 21 Cornell Intl LJ 487. 249. See 19.110 below. 250. See 19.39ff above.

251. See Olivaylle Pty Limited v Flottweg AG (2009) 255 ALR 632, where the contract provided for ‘Australian law applicable under exclusion of UNCITRAL law’ which was interpreted as being a reference to the Convention for the International Sale of Goods. 252. Vienna Sales Convention Art 7(2). 253. Sale of Goods (Vienna Convention) Act 1987 (ACT); Sale of Goods (Vienna Convention) Act 1986 (NSW); Sale of Goods (Vienna Convention) Act 1987 (NT); Sale of Goods (Vienna Convention) Act 1986 (Qld); Sale of Goods (Vienna Convention) Act 1986 (SA); Sale of Goods (Vienna Convention) Act 1987 (Tas); Sale of Goods (Vienna Convention) Act 1987 (Vic); Sale of Goods (Vienna Convention) Act 1986 (WA). 254. Vienna Sales Convention Art 6. 255. See note 254 above Art 1(3). 256. See note 254 above Art 10(a). 257. See note 254 above Art 10(b). 258. See note 254 above Art 1(2). 259. See note 254 above Art 2. 260. See note 254 above Art 3. 261. See note 254 above Art 100.

[page 478]

Chapter 20

Torts Introduction 20.1 When a plaintiff makes a claim based on a tort allegedly committed in another jurisdiction, there are at least three possible approaches the forum court might take. First, it could ignore the law of the place where the alleged wrong occurred and simply apply the law of the forum, its own law. That has the advantage of simplicity, as there is no need to ascertain and apply the law of the jurisdiction in which the tort occurred. However, it encourages forum shopping: the plaintiff may choose a hospitable forum and recover damages under a law that has nothing to do with the circumstances that gave rise to the claim. The second alternative is to apply the law of the place of the wrong. The advantage is certainty: in theory, no benefit can be gained by a plaintiff going forum shopping because their claim will be governed by the same law no matter where it is brought.1 In practice, difficulties may arise. The forum court must determine what parts of the relevant law of the forum and of the place of the wrong, respectively, are substantive, and what parts are procedural.2 If the place of the wrong is outside Australia, there may be a problem of discovering and interpreting the foreign law. But the main objection is that the place of wrong may be fortuitous, as it was in Corcoran v Corcoran.3 In this case, a husband and wife who were residents of Victoria went touring in New South Wales in the husband’s car, which was registered and insured in Victoria. The wife was injured in New South Wales as the result of the husband’s negligence. Under the law of New South Wales, as it then stood, spouses could not sue each other in tort. Under the law of Victoria, interspousal immunity had been abolished. Applying the law of the place of the wrong would have deprived the wife of a remedy, even though the connection with New South Wales was transient and fortuitous. The connection with Victoria was substantial, despite the fact that the

accident did not occur there. A third theoretical possibility would be to abandon choice-of-law rules that focus on geographical considerations such as the place of the wrong or the place where [page 479] suit was brought, and to consider instead which of the possibly applicable legal rules should be applied in the particular circumstances of the case. For example, in the celebrated New York case of Babcock v Jackson,4 the New York Court of Appeals abandoned jurisdiction-selecting choice-of-law rules in favour of a test that sought to apply ‘the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation’.5 Babcock v Jackson was the beginning (or, rather, the judicial beginning) of what has been called the ‘choice of law revolution’ in the United States.6 There are now many different choice of law approaches in the United States, including ‘interest analysis’, ‘significant contacts’, the ‘better law’ and a method that combines other tests eclectically.7 What the ‘post-revolutionary’ approaches share in common is a refusal to use choice-of-law rules that select the applicable law based solely on territorial contacts without reference to the content of the implicated laws.8 20.2 Australian courts have at various times canvassed all three possibilities, but for 50 years they remained wedded to a fourth option, the ‘double actionability’ rule in Phillips v Eyre,9 which required consideration of both the law of the forum and the law of the place of the wrong. The rule was notoriously difficult to understand and apply and few (if any) lamented its passing when the High Court of Australia finally abandoned it. In John Pfeiffer Pty Ltd v Rogerson10 and Regie Nationale des Usines Renault SA v Zhang11 the High Court adopted a law of the place of the wrong (lex loci delicti) test for intraAustralian and international torts, respectively. Emulating the Supreme Court of Canada,12 the High Court also rejected the idea, drawn from the English case of Boys v Chaplin13 and repeated in the later United Kingdom legislation governing choice-of-law in torts cases,14 that the law of the place of the wrong test should be qualified by a ‘flexible exception’ allowing application of some other law if ‘clear and satisfying grounds are shown why it [the law of the place of the wrong] should be departed from’.15 In both John Pfeiffer and Zhang, a majority

of the High Court took the view that a ‘flexible exception’ would undermine the principal advantage of the lex loci delicti rule, the promotion of certainty, thereby increasing the cost to the parties, their insurers and society at large by engendering [page 480] doubt as to liability and impeding settlement.16 Thus, the choice-of-law test is now simple and clear: the forum court must apply the lex loci delicti, without exception. 20.3 Although the choice-of-law test is now clear and predictable, several questions require further consideration. First, there is the question of where the alleged tort occurred. A place-of-the-wrong test can only be applied once the court has determined the place of the wrong, but that is not always an easy task, particularly when the conduct complained of occurs in one jurisdiction and the harm is suffered in another, or when the alleged wrong consists of a failure to do something, such as a failure to warn. Second, as noted above at 20.1, a place-ofthe-wrong test demands that the court pay close attention to the distinction between substance and procedure, which was considered in Chapter 16. That is now particularly important in intra-Australian cases because the civil liability legislation passed by the states and territories at the beginning of the century made many piecemeal changes to the law of torts that were not uniform in form or effect, some of which appear substantive and some procedural. Third, one must ask to what issues the tort choice-of-law test should be applied. For example, the doctrine of vicarious liability affects liability in tort but it is not — or not obviously — part of the law of torts itself. Should the torts choice-of-law test be applied to ancillary questions affecting liability in tort? Consideration of those three questions occupies the remainder of this chapter. 20.4 The Zhang majority adopted the lex loci delicti rule for international torts subject to a caveat that ‘special considerations … apply to maritime torts’, which should be reserved for further consideration as the occasion arises.17 Accordingly, maritime and aerial torts are considered separately below, at 20.71–20.76.

The Place of the Wrong

20.5 The question of where a tort has been committed has received a great deal of attention in the law relating to jurisdiction,18 but has less frequently arisen in choice-of-law issues. The question of whether a tort is localised within the forum for the purpose of jurisdiction may give rise to different issues where the question is one of identifying the place of wrong for choice-of-law purposes.19 In the former case, the question is whether the tort has a sufficient connection with the forum to justify the assumption of jurisdiction, but it need not affect other fora having sufficient connection also.20 But, for choice-of-law purposes, there can only be one place of wrong.21 [page 481] 20.6 The difference between the contexts does not exclude reference to cases dealing with jurisdiction.22 Indeed, it would appear that the basic test to be applied is the same. Although earlier decisions stressed the place where the act was done from which the harm ensued,23 in Voth v Manildra Flour Mills Pty Ltd,24 the High Court of Australia adopted for choice-of-law purposes the test formulated by the Privy Council in Distillers Co (Biochemicals) Ltd v Thompson:25 The right approach is, when the tort is complete, to look back over the events constituting it and ask the question: where in substance did the cause of action occur?

20.7 Although authoritatively established, this test may prove to be deceptively simple. As Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ observed in John Pfeiffer Pty Ltd v Rogerson:26 [I]t is necessary to recognise that the place of the tort may be ambiguous or diverse. Difficulty will arise in locating the tort when an action is brought, for example, for product liability and the product is made in State A, sold in State B and consumed or used by the plaintiff in State C. And the tort of libel may be committed in many States when a national publication publishes an article that defames a person. These difficulties may lead to litigants seeking to frame claims in contract rather than tort (as the NSW Compensation Act anticipated) or for breach of s 52 of the Trade Practices Act 1974 (Cth) or some similar provision. Characterising such actions may be difficult and may raise questions whether the private international law rules about tort or some other rules are to be applied.

Similarly, in Dow Jones & Co Inc v Gutnick,27 Gleeson CJ, McHugh, Gummow and Hayne JJ observed that: [L]ocating the place of commission of a tort is not always easy. Attempts to apply a single rule of location (such as a rule that intentional torts are committed where the tortfeasor acts, or that torts are committed in the place where the last event necessary to make the actor liable has taken place) have proved unsatisfactory if only because the rules pay insufficient regard to the different kinds of

tortious claims that may be made. Especially is that so in cases of omission. In the end the question is ‘where in substance did this cause of action arise’? In cases, like trespass or negligence, where some quality of the defendant’s conduct is critical, it will usually be very important to look to where the defendant acted, not to where the consequences of the conduct were felt.

20.8 The mere fact that damage occurred in a particular jurisdiction is not sufficient,28 but nevertheless the tendency in cases of ‘double locality’ torts29 has [page 482] been to stress the place at which the activity of the defendant was directed, rather than the place where the activity complained of originated.30 That proposition can be illustrated by considering each tort separately.

Negligence 20.9 If the tort alleged is based on a negligent act or omission of the defendant causing physical harm, the tort is committed in the place where that negligent act or omission occurred, even though consequential injury was suffered elsewhere.31 In Koop v Bebb32 the High Court was dealing with an action for wrongful death. The deceased, a resident of Victoria, had been fatally injured in a collision in New South Wales. After the accident he was brought back to Victoria where he died. In consequence his family in Victoria was left without a breadwinner and this was the basis of their action under the Victorian Fatal Accidents legislation. The majority of the High Court without discussion proceeded on the basis that New South Wales was the place of wrong. McTiernan J, who dissented on the basis that the law of the place of wrong should be applied, stated expressly that New South Wales was the place of wrong because it was the place where the defendant committed the wrongful act from which the damage, in this case the death of the deceased in Victoria, ensued.33 The same is true in cases of negligent acts causing purely economic loss; the tort is committed where the negligent act occurred, not where the loss was suffered.34 20.10 When several acts or omissions in different places combine to cause the plaintiff a single harm, yet more difficult questions may arise. The facts of Puttick v Tenon Ltd35 provide an example, although the decision of the High

Court of Australia provided no answer to the issues in question. In Puttick, the plaintiff’s husband died of malignant mesothelioma contracted as a result of exposure to asbestos during his employment by a New Zealand company, Tasman Pulp and Paper Co Ltd, which was a subsidiary of the defendant, Tenon Ltd, also a New Zealand company. The exposure was said to have occurred during visits that the deceased made to factories in Belgium and Malaysia in the course of his employment. The plaintiff sued Tenon in Victoria, alleging that her late husband’s death was caused by Tenon’s negligence. Tenon moved for a stay of proceedings, arguing that the Supreme Court of Victoria was a clearly inappropriate forum because (among other reasons) the [page 483] lex loci delicti was New Zealand law.36 At first instance, Harper J held that the alleged tort had occurred in New Zealand. On appeal, a majority of the Court of Appeal of Victoria agreed that the alleged tort had occurred in New Zealand. The dissentient, Maxwell P, was of the opinion that the cause of action had arisen in the factories in Malaysia and Belgium where the deceased had been required to work. On appeal, the High Court of Australia held that it was impossible to make even a provisional finding about what was the place of commission of the tort alleged, given the state of the pleadings.37 The mere likelihood that the tort might be governed by a foreign lex causae was not a relevant factor in deciding whether a stay of proceedings should be granted.38 It seems likely that the deceased’s exposure to asbestos was caused (or could be alleged to have been caused) by negligence in New Zealand, Malaysia and Belgium: a negligent failure in New Zealand to give him proper instruction about the dangers of asbestos and the importance of preventive measures; and negligent failures in Malaysia and Belgium to provide him protection against asbestos inhalation. Would this mean that there were three different torts, with three different leges causae? If there was only one tort — the damage to Mr Puttick’s lungs, which caused his death — how could it be located in one place, when the negligence occurred in three different countries? The advice of the Distillers test to look over the sequence of events and ask where ‘in substance’ the cause of action arose is unhelpful in this context. 20.11 In product liability cases, the plaintiff’s complaint may be not that the product was negligently manufactured but that it was inherently dangerous. If

that is the case, the place of the tort is where the plaintiff is exposed to the inherent risks of the product, not where it was manufactured.39 In relation to inherently dangerous products, the plaintiff’s complaint is often that the defendant negligently failed to warn of the product’s dangerous qualities. That failure occurs at the place where the plaintiff buys or uses the product and is not warned.40 Thus, in a jurisdiction case, Distillers Co (Bio-Chemicals) Ltd v Thompson,41 the Privy Council held that the failure of the United Kingdom manufacturer of Thalidomide to warn the plaintiff’s mother of its risks during pregnancy occurred in New South Wales where the mother bought the product from a local chemist and found no warning endorsed on the packet. On the other hand, if the plaintiff is the importer who has bought the goods abroad, the failure to warn takes place there.42 There is much to be said for the proposition that [page 484] a defendant who directs its products to a particular market should be prepared to assume liability under the law of that place if harm occurs to a consumer there.43 20.12 If the negligence consists of a failure to provide services or advice without proper care, the tort is committed in the place where those services were or ought to have been rendered.44 In the case of a negligent misrepresentation directed from one place to another, the tort is committed at the place to which it was directed, whether or not it was there acted upon, provided it was a place where it could have been reasonably anticipated that it would be received by the plaintiff or brought to the attention of the plaintiff, even if in fact it is received by the plaintiff elsewhere.45 The place where the statement was acted upon is not by itself relevant.46 20.13 Actions for breach of statutory duty are governed by the same choice-oflaw rules as actions in negligence.47

Defamation 20.14 In an action for defamation, the place of wrong is the place where the publication is made. In Dow Jones & Co Inc v Gutnick,48 a jurisdiction case, allegedly defamatory comments about a Melbourne businessman were posted on the Internet website of the Wall Street Journal in the United States. The comments were read by subscribers in Victoria, among many other places. The

High Court of Australia held that the defamation (if any had occurred) took place in Victoria, where the comments were read, not the United States, where they were written and posted on the Internet. The High Court rejected the defendant’s argument that a special rule was necessary for Internet publication, so as to avoid the consequence that publishers of material on the Internet could find themselves subject to the law of every country in the world from which access to the Internet can be made. Gleeson CJ, McHugh, Gummow and Hayne JJ said that for the purposes of the law of defamation, publication is a bilateral act, in which the publisher makes information available and the reader (or viewer or listener) has it available for their comprehension.49 20.15 Multiple publication through broadcasting, television and the Internet can present some problems. In Gorton v Australian Broadcasting Commission,50 the plaintiff claimed to have been defamed in a television interview which had been recorded in Canberra and telecast in all Australian states. Fox J held that publication [page 485] took place in each jurisdiction where the program was seen.51 He consequently permitted the defendant to rely on any defence available under the law of any place where the plaintiff proved publication had taken place in response to any claim for damages in that place. Clearly, that approach would be correct after John Pfeiffer Pty Ltd v Rogerson,52 where the High Court held that interstate torts were to be governed by the substantive law of the place of the wrong. 20.16 The rationale for the multiple-tort approach in multi-jurisdiction defamation cases was explained by Blackburn J in Allsopp v Incorporated Newsagencies Co Pty Ltd:53 The statement of claim alleges distribution of the offending material throughout Australia, and evidence was given of circulation of the issue in question in the various States and Territories. The plaintiff’s claim is thus based not merely on the commission of a tort within the jurisdiction but on the commission of as many torts as there are jurisdictions. There are several claims for several torts, and each has to be considered separately.

However, the uniform state defamation legislation54 overrides this principle by stating a choice-of-law rule that produces the result that there is only one tort in the event of multi-jurisdiction publication. The legislation provides that if there is multiple publication in more than one ‘Australian jurisdictional area’, a court

must apply the substantive law applicable in ‘the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection’.55 In determining the ‘Australian jurisdictional area’ with which the harm has it closest connection, the court may take into account: the plaintiff’s ordinary residence at the time of publication; the extent of publication in each relevant Australian jurisdictional area; the extent of harm sustained by the plaintiff in each relevant Australian jurisdictional area; and any other matter the court considers relevant.56

Fraud, breach of confidence, breach of fiduciary duty 20.17 In actions based on conduct that is alleged to be fraudulent or deceitful, the place of wrong is the place where that conduct takes place, rather than where it takes its effect. In John Walker & Son Ltd v Henry Ost & Co Ltd,57 Foster J held in a passing-off action that, if a trader in England sells goods and labels which by his [page 486] knowledge and intention are to be used to pass off those goods falsely in a foreign country as goods manufactured by the plaintiff, he has committed a tort in England. Similarly, in Traxon Industries Pty Ltd v Emerson Electric Co,58 a jurisdiction case, French J (then) of the Federal Court of Australia held that alleged breaches of confidence and fiduciary duty took place in the United States, where the relevant conduct occurred, even though the duties arose because of conduct in Australia. 20.18 If the claim is based on a fraudulent misrepresentation made across borders, the tort is committed in the place where that representation is directed to and can reasonably be expected to be received by the plaintiff.59 The place where the statement is acted upon and harm resulted is not by itself relevant.60

Passing off 20.19 Since the basis of passing off lies in misrepresentation,61 the tort is committed in the place to which the conduct complained of is directed.62 In addition, the plaintiff must establish reputation in the jurisdiction.63

Inducing a breach of contract 20.20 In Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc64 the English Court of Appeal held that the tort of inducing a breach of contract occurred in England where the actions in breach of the contract were taken, and not in New York where the decision to procure the breach of contract was made. As Slade LJ pointed out in that case,65 a party acting abroad but intentionally procuring results in England should not be able to shelter in a ‘safe haven’. It is true that in South Adelaide FC v Fitzroy FC (No 1)66 Master Lunn assumed, without having to decide, that the tort of inducing a Melbourne football club to break its contract with an Adelaide club took place in Victoria where it was persuaded and not in South Australia where it failed to perform its obligations. But the case was concerned with jurisdiction, not choice of law. Similarly, in Daebo International Shipping Co Ltd v The Ship Go Star,67 a Full Court of the Federal Court of Australia held that the tort of inducing breach of contract was committed at the place of inducement, not the place where the contract was breached nor the place where the inducing statement was made. In that case, the defendant sent emails from Greece to Singapore, inducing a breach [page 487] of contract that took place in China. The Full Court held that the tort had been committed in Singapore.

Torts committed in the forum 20.21 If the tort is committed within the forum, it is not a foreign tort. Such is the case even though both parties to the action are foreigners,68 or the wrongful act was initiated abroad but had its harmful impact within the forum.69

Substance, Procedure and the Civil Liability Legislation 20.22 In 2002 and 2003, each of the Australian states and territories passed legislation to modify aspects of the law of torts. The legislation was passed to implement the recommendations of the Ipp Panel’s Review of the Law of

Negligence70 but the legislatures ignored the Ipp Panel’s first recommendation, which was that uniform legislation should be passed in each Australian jurisdiction.71 Because the substantive law of torts now differs quite markedly between Australian jurisdictions, any court applying the John Pfeiffer lex loci delicti test in an intra-Australian torts case must first determine whether the relevant provisions of the civil liability legislation of the place of the wrong are substantive or procedural. The John Pfeiffer rule is that the lex loci delicti governs ‘all questions of substance’.72 However, in both John Pfeiffer and Zhang, the High Court referred to the difficulty in identifying a unifying principle that assists in making the distinction between questions of substance and questions of procedure.73 The John Pfeiffer court stated the following ‘guiding principle’ for making that distinction:74 [M]atters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or, to adopt the formulation put forward by Mason CJ in McKain, ‘rules which are directed to governing or regulating the mode or conduct of court proceedings’ are procedural and all other provisions or rules are to be classified as substantive.

It is impossible to generalise about the effect of the various provisions of the civil liability legislation because the answer necessarily depends on the nature of the [page 488] rule in question. The following paragraphs make some tentative characterisations using the John Pfeiffer ‘guiding principle’. Substantive rules are to be applied to wrongs occurring in the legislating jurisdiction, wherever proceedings are brought. Procedural rules are to be applied when proceedings are brought in the legislating jurisdiction, wherever the wrong occurred.

Substantive rules 20.23 Any legislative rule that modifies the basic tests for determining liability in tort is undoubtedly substantive. Many of the new statutory provisions fall into that category. Indeed, that is what they were designed to do. Thus, for example, the statutory ‘not insignificant’ test, which replaces the Wyong Shire Council v Shirt75 ‘far-fetched or fanciful’ test for reasonable foreseeability of risk in all jurisdictions except the Northern Territory, is plainly substantive.76 It was

designed to raise the threshold of the risks to which potential defendants are required to respond, thereby making liability more difficult to establish. 20.24 Similarly, the legislative provisions setting out the tests for ‘factual causation’ and ‘scope of liability’ in all jurisdictions except the Northern Territory are substantive.77 It is questionable whether the new provisions produce results that are different from the common law but, at the least, they define the questions that the court must ask in determining whether a negligent defendant should be held liable for the harm suffered by the plaintiff. Those questions are intimately concerned with the extent of the parties’ rights and duties — indeed, the scope of liability provisions specifically instruct the court to consider ‘whether or not and why responsibility for the harm should be imposed on the negligent party’,78 a quintessentially substantive question. 20.25 At common law, it was widely accepted that the standard of reasonable care should be more leniently applied to plaintiffs than to defendants. That prompted all jurisdictions except the Australian Capital Territory and the Northern Territory to prescribe that the plaintiff’s contributory negligence in failing to take precautions against the risk of harm must be assessed according to the same principles that are employed to measure the reasonableness of the defendant’s conduct.79 That is a [page 489] substantive change, one intended to reflect a community expectation that individuals should care for themselves as much as they should expect others to care for them.80 20.26 In Tame v New South Wales; Annetts v Australian Stations Pty Ltd,81 the High Court of Australia abandoned most of the previous restrictions on the existence of a duty of care in relation to emotional harm, placing recovery for psychiatric injury on the same footing at common law as recovery for physical injury. The common law position has been modified by statute in all jurisdictions except Queensland and the Northern Territory, although the effect of the legislation varies considerably from legislating jurisdiction to legislating jurisdiction.82 Because the legislation defines the circumstances in which a duty of care arises, it is clearly substantive. Similarly, each jurisdiction except South Australia and the Northern Territory

has enacted legislation defining when a ‘public or other authority’ owes or has breached a duty of care.83 The Australian Capital Territory, New South Wales and Tasmania have passed very restrictive legislation stipulating when a public authority is liable for failure to exercise its statutory powers to prohibit or regulate an activity.84 Because they ‘affect the existence, extent or enforceability of the rights or duties of the parties’, these provisions about the liability of public authorities are clearly substantive. 20.27 Any statutory conferral of immunity from civil liability is obviously substantive. ‘Good Samaritans’ are protected from civil liability in all jurisdictions except Tasmania;85 food donors are protected from civil liability in defined circumstances in New South Wales, Queensland, Victoria and Western Australia;86 and all jurisdictions except the Northern Territory have largely restored by statute87 [page 490] the immunity of roads authorities for nonfeasance that existed before Brodie v Singleton Shire Council.88 (All eight jurisdictions have conferred immunity from civil liability on volunteers doing community work, thereby removing the possibility of any choice-of-law questions, except perhaps because of slight differences in the definitions of ‘volunteer’ and ‘community work’.)89 20.28 The Australian Capital Territory is unique in providing that ‘if the claimant suffered personal injury and the wrong was a breach of statutory duty, the damages recoverable by the claimant for the personal injury must not be reduced because of the claimant’s contributory negligence’.90 (In all other jurisdictions, contributory negligence is a defence to an action for breach of statutory duty, even though the defendant’s breach of duty may not depend on negligence.)91 This provision is substantive because it is intended to affect the rights of the parties. 20.29 Several of the changes made by the civil liability legislation take the form of rebuttable presumptions of one kind or another, or shifts in the burden of proof. Characterisation of a rebuttable presumption as substantive or procedural is a notoriously difficult task.92 Each rule must be considered individually, guided by such considerations of policy as may be relevant.93 In New South Wales, Queensland, South Australia, Tasmania and Victoria, a

person is presumed to be aware of the risk of injury if the risk was ‘obvious’ to a reasonable person in their position.94 If a defendant raises the defence of voluntary assumption of risk (volenti non fit injuria) in relation to an ‘obvious risk’ of harm, the plaintiff is presumed to be aware of that risk unless they prove on the balance [page 491] of probabilities that they were not aware of the risk.95 These provisions partially reverse the common law burden of proof in relation to the defence of voluntary assumption of risk, which requires the defendant to prove both that the plaintiff was aware of the risk and that they voluntarily accepted the risk.96 Although it is cast in terms of who must prove what on the balance of probabilities, which makes it sound like a rule ‘governing or regulating the mode or conduct of court proceedings’,97 it seems that this rule should be regarded as substantive. The obvious intention of the legislatures was to make it easier for the defence of voluntary assumption of risk to succeed than at common law. In order to rebut the statutory presumption, a plaintiff must prove, on the balance of probabilities, that they were not even aware of the type or kind of risk that caused the harm, even though that type or kind of risk was patent or a matter of common knowledge and would have been regarded as obvious by a reasonable person in their position.98 It is so difficult to imagine a plaintiff successfully discharging that burden that it seems appropriate to regard this as a rule designed to affect decision of the issue rather than one merely regulating the conduct of judicial proceedings. 20.30 More straightforward is the statutory presumption of contributory negligence where the injured person is intoxicated. Each jurisdiction except Victoria provides that a plaintiff who was intoxicated at the time of the harm is presumed to have been contributorily negligent, unless they prove that the intoxication did not contribute to the harm (or, in the Australian Capital Territory, to the accident, a significant difference).99 This is a simple reversal of the burden of proof, which in effect dictates who should lose if the court remains undecided about whether the plaintiff’s intoxication contributed to the harm they suffered. Because it is a presumption of fault rather than a presumption about a fact, it seems clearly to be substantive.100

Procedural rules 20.31 In Chappel v Hart101 and Rosenberg v Percival,102 the High Court of Australia held that when a patient brings an action complaining of a doctor’s negligent failure to warn of the risks associated with a medical procedure, the court must apply a subjective test when considering whether the negligent failure caused the harm sustained by the plaintiff. The relevant question at common law is whether the [page 492] particular plaintiff would have undergone the operation if they had been warned of the risks, not what a reasonable person in the plaintiff’s position would have done.103 New South Wales, Queensland, Tasmania and Western Australia have passed legislation providing that the court must make a Chappel/Rosenberg-like subjective inquiry in all cases where it is relevant ‘to determine what the person who suffered harm would have done if the negligent person had not been negligent’.104 However, the legislation in those four states goes on to provide that any statement made by the person after suffering the harm about what they would have done is inadmissible except to the extent (if any) that the statement is against their interest.105 The other four jurisdictions allow the court to hear the plaintiff’s evidence, apparently trusting in the judge’s ability to decide what weight to give to an account that may be suspiciously self-serving because it is given with the benefit of hindsight. The fact (or hypothetical fact) that must be proved in such a case is ‘what the person who suffered harm would have done if the negligent person had not been negligent’,106 but the provisions excluding the evidence of the person who suffered the harm govern how that fact must be proved. It follows that the rule about the plaintiff’s evidence is procedural and should only be applied as part of the lex fori.107 20.32 Some of the legislative provisions are phrased in terms of what a court should do, rather than in terms of the rights and obligations of the parties themselves. That makes them appear procedural in effect, operating as a directive to the courts of the legislating jurisdiction. For example, all eight jurisdictions have modified the rules of joint and several liability by introducing proportionate liability for claims concerning

economic loss or property damage.108 The liability of a defendant for what the legislation calls ‘an apportionable claim’ is limited to what the court considers ‘just having regard to the extent of the defendant’s responsibility for the loss or damage’.109 In a remarkable departure from the usual operation of the adversary system, the Australian Capital Territory, New South Wales, the Northern Territory and Queensland provide that the court may have regard to the comparative responsibility of a concurrent wrongdoer [page 493] who is not a party to the proceeding,110 and South Australia, Tasmania and Western Australia provide that the court must do so.111 In contrast, Victoria provides that the court must not consider the comparative responsibility of a person who is not a party to the proceeding unless that person is dead or, if a corporation, wound up.112 Except in South Australia, the provisions in question are cast in terms of the matters the forum court must take into account in determining the extent of the defendant’s liability: for example, in Tasmania and Western Australia, ‘a court is to have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings’.113 A Victorian court could quite properly ignore that instruction as being incompatible with Victorian procedure, which prohibits consideration of such matters unless the non-party is dead or wound up. 20.33 Similarly, New South Wales and Victoria have passed legislation providing that liability for breach of a non-delegable duty to ensure that reasonable care is taken should be determined as if the defendant were vicariously liable for the negligence of the person to whom the task was delegated.114 Those provisions were intended to remove the possibility that a plaintiff might try to avoid the restrictions that the legislation imposes on negligence liability by bringing an action for breach of a non-delegable duty, to which the legislation would not apply because it is not an action alleging a failure to take reasonable care.115 Like the legislation about the comparative responsibility of non-parties, the provisions about non-delegable duties are cast in terms of what a court should do — ‘the extent of liability … is to be determined as if …’ — rather than in terms of the rights and obligations of the parties themselves. Accordingly, they should apply only to proceedings in New

South Wales and Victoria, but they should apply to proceedings in those states regardless of where the alleged wrong occurred. [page 494]

Related Issues 20.34 Although the primary choice-of-law rule in Australia points to the application of the law of the place of wrong, not all issues likely to arise in an action based on tort will be determined by that law. To take an obvious example, if it is alleged that the plaintiff cannot sue the defendant because they are husband and wife, the question, if it is raised, of the validity of their marriage will not be determined necessarily by the law of the place of wrong. The choiceof-law rules relevant to that issue will be applied. There are, however, a number of other issues where the answer may not be as clear-cut. They are discussed below.

Contract and tort 20.35 In some cases a plaintiff may have alternative actions available in respect of the same injury in tort and in contract. For example, an Australian injured abroad in the course of their employment, as a result of the adoption of an unsafe system of work, may allege both negligence by their employer and breach of contract.116 Under the law of the place of accident no liability may arise, but under the law governing the contract the employer may be liable for breach of an implied term that the working conditions should be safe. Or alternatively, the law of the place of accident may impose liability when there would be no liability for breach of contract.117 In the case of alternative causes of action, the plaintiff may proceed with each of them and will succeed if the defendant owes them a liability under one or more of the applicable laws.118 That is the private international law equivalent of the proposition of domestic law, accepted by the High Court of Australia in Astley v Austrust Ltd,119 that a plaintiff may rely on concurrent causes of action in contract and tort.120 Thus, in the first example given above, the tort claim would fail but the contract claim would succeed, and in the second example, the tort claim would succeed and the contract claim would fail.

20.36 In the case of a contractual exemption clause, the situation is less clear. In Sayers v International Drilling Co NV,121 the plaintiff was injured in the course of his employment on an oil rig owned by a Dutch company and situated in Nigerian [page 495] territorial waters. His contract of employment with the Dutch company contained a clause excluding the liability of the company in respect of accidental injury. He brought an action framed in tort in England where such a clause was void. The Court of Appeal, however, held that Dutch law governed the issue according to which the exclusion clause was valid. The plaintiff therefore failed. The majority, Salmon and Stamp LJJ, did not address the issue of choice of law in tort at all. For them the sole issue was the determination of the proper law of the contract. Hence, the decision can be seen as authority for the proposition that the validity of a defence to a claim in tort based on contract is to be determined solely by reference to the proper law of the contract. This is in accordance with similar assumptions made in earlier decisions of the Privy Council and House of Lords.122 Lord Denning MR took the view that the issue should be governed by the choice-of-law rules relevant to a claim in tort.123 In the circumstances of the case he held it to be Dutch law thereby concurring in the result with his brethren. It has been suggested that a double barrelled test should be applied: a defence based on contract to a claim founded in tort will be effective if the contractual clause in question is valid under the proper law of that contract and the defence is one which the law of the forum and that of the place of wrong will allow.124 But this would be an undue complication, and the view that the existence of a defence based on contract should depend on the proper law of that contract appears to be the better view.125

Vicarious liability 20.37 The question of whether one person is vicariously liable for a tort committed by another has traditionally been treated as if it were a question of tortious liability itself and governed by the same conflict rules. It follows that if the defendant bears no legal responsibility under the law of the place of wrong,

the defendant cannot be held liable in the forum.126 To apply the law of the forum to questions of vicarious liability would be to resurrect The Halley,127 in which the Privy Council held that a shipowner was not vicariously liable for the negligence of a compulsory pilot, despite the fact that the law of the place of the wrong (Belgian law) imposed vicarious liability, because the law of the forum (English law) then did not.128 In Regie Nationale des Usines Renault [page 496] SA v Zhang,129 a majority of the High Court explained The Halley as an early example of a refusal to apply foreign law on public policy grounds, one that went too far in holding the Belgian law of vicarious liability to be manifestly contrary to English public policy. It follows that under the John Pfeiffer/Zhang test, the forum court should only refuse to apply the vicarious liability rules of the lex loci delicti if they fall within the narrow grounds for exclusion of foreign law on public policy grounds.130 Unfortunately, in Barach v University of New South Wales,131 the Supreme Court of New South Wales held that the question of vicarious liability for alleged torts governed by the law of Florida and Israel should be determined by ‘the common law of Australia’. It seems that the issue was not argued by counsel, and no justification of principle was given, nor any authority cited, so it may be possible to regard this as an aberration.

Rights of recourse and contribution 20.38 By statute certain persons have been given a right of recourse or contribution against a third party. This may take the form of: (i) the right of an insurer to claim an indemnity from a third party whose tortious act created the harm; (ii) a right to claim contribution or indemnity against another tortfeasor; and (iii) a right of direct recourse against a third party insurer. In each case the question is whether the right should be classified as a claim in tort, a claim in quasi-contract or as standing on its own.

The right of an insurer to indemnity

20.39 An insurer’s right to an indemnity is a statutory creation that does not fit easily into the existing classifications of tort, contract or quasi-contract. In Sweedman v Transport Accident Commission,132 the High Court of Australia declined to make a definitive characterisation of such a claim or to adopt a definitive choice-of-law rule, but it did reject use of the tort rule. In Sweedman, the Transport Accident Commission (TAC) paid compensation to two Victorian residents who were injured in a collision between motor vehicles in New South Wales. The TAC sued in Victoria to recover an indemnity under the Transport Accident Act 1986 (Vic) from the New South Wales driver whose (assumed) negligence had caused the collision. The New South Wales driver (actually, her insurer) argued that the Victorian Act did not apply in relation to liability arising in New South Wales under New South Wales law. The High Court of Australia held, by a majority, that the TAC was entitled to an indemnity under the Victorian Act. Both parties accepted that the obligation to indemnify was distinct from the underlying claim in tort, as did the Attorneys-General of the Commonwealth, New South Wales, South Australia, Victoria and Western Australia, who had all [page 497] intervened in the case. The majority therefore held that the choice-of-law rule in tort had no direct role to play.133 20.40 The majority in Sweedman considered two alternative choice-of-law rules but found it unnecessary to choose between them because both pointed to Victoria on the facts of the case. One alternative was to characterise the claim as a quasi-contractual cause of action in the nature of a quantum meruit, akin to the old action for indebitatus assumpsit. The choice-of-law rule for such a characterisation would be that the court should apply the law of the state with which the obligation to indemnify had the closest connection.134 The TAC argued, with some justification, that the outcome of a search for the closest connection would be difficult to predict with certainty and it suggested as an alternative that the obligation to indemnify should be regarded as restitutionary in nature, and that the governing law should be the source of the legal compulsion to make the compensation payments for which indemnity was sought, which was Victorian law.

The majority said that Victoria was the appropriate law even if the ‘closest connection’ test were to be applied, despite the fact that the accident occurred in New South Wales and the defendant resided there. The obligation to indemnify came from the Victorian Act, the moneys recovered would go to augment the Victorian TAC Fund and the obligation only arose after payments required by the Victorian Act had been made out of the Victorian Fund to Victorian residents.135 Because both alternative tests pointed towards Victoria, it was not necessary to choose between them. 20.41 It is difficult to imagine circumstances in which the two tests considered in Sweedman might point to different laws. Nevertheless, it seems preferable to focus on the source of the legal compulsion alone, rather than as one factor in a vague and unpredictable ‘closest connection’ test. That test is clearer and more predictable and it focuses on what is relevant. The fact that the accident in Sweedman occurred in New South Wales was largely fortuitous. Its importance was only that it triggered legal consequences in Victoria: an obligation on the part of the TAC to pay compensation under Victorian law. The circumstances of the triggering incident seem unimportant so far as the consequent right to indemnity is concerned. 20.42 A place-of-the-legal-compulsion test also provides an acceptable explanation for the result in Borg Warner (Aust) Pty Ltd v Zupan,136 where an employee was injured in Victoria by the negligence of a Victorian driver while he (the employee) was on his way to work in New South Wales. His employer paid him workers’ compensation under the New South Wales workers’ compensation legislation and sued the Victorian driver in Victoria for an indemnity under that legislation. The Full Court of the Supreme Court of Victoria held that the employer was entitled [page 498] to an indemnity. The Full Court declined to characterise the claim as either one in tort or quasi-contract, confining itself to the observation that a Victorian court was entitled to apply a New South Wales statutory provision if it was in the interests of justice to do so.137 It is difficult to accept the suggestion that an Australian court has a discretion to apply or not to apply the statute law of another state or territory. After Sweedman, it seems far better to explain the result by reference to the source of the Victorian defendant’s obligation to

indemnify the employer. The accident in Victoria triggered an obligation to pay compensation in New South Wales and a right to indemnity under New South Wales law. 20.43 In United Airlines Inc v Sercel Australia Pty Ltd,138 an employee was injured on an aeroplane that had just landed in Houston, Texas. He was paid workers’ compensation payments in New South Wales by his employer’s workers’ compensation insurer, which then claimed an indemnity from the airline, relying on the New South Wales workers’ compensation legislation. The airline argued that the relevant lex causae was Texas law, by which the insurer would have no right to an indemnity. That argument was rejected by the New South Wales Court of Appeal. Texas law might have been relevant to the employee’s own rights against the airline, but it had no effect on the insurer’s rights, which were independent of the employee’s. The insurer’s right to an indemnity was conferred by New South Wales law because compensation had been paid under New South Wales law. Although the court did not explain which choice-of-law rule it was applying, and did not refer to Sweedman, the result and reasoning are consistent with the place-of-the-legal-compulsion test. Allsop P (with whom Macfarlan JA agreed) simply observed that just as compensation is payable under the New South Wales Act if injury took place out of New South Wales, so also the statutory indemnity applies to permit recovery of sums paid under the New South Wales statute in respect of injury suffered outside New South Wales.139 This seems to be a place-of-the-legal-compulsion test: because the legal compulsion arose from New South Wales law, it was New South Wales law that governed the insurer’s right to an indemnity.

The right of contribution or indemnity 20.44 Like the right of an insurer to an indemnity, the right to contribution between wrongdoers is a statutory creation that does not fit easily into existing characterisations. The prevailing view is that rights of indemnity and contribution should be treated as ‘tort-like’ claims, not as part of the underlying claim, but governed as a separate issue by the tort rule.140 However, that view may have to be reconsidered in light of the High Court’s decision in Sweedman v Transport Accident Commission.141 [page 499]

20.45 In Baldry v Jackson,142 Master Allen of the Supreme Court of New South Wales favoured the tort analogy when faced with a claim to recover contribution from a fellow tortfeasor in respect of an accident in Queensland. However, it was not necessary to make a final decision about choice of law because the two jurisdictions in question, New South Wales and Queensland, had similar legislation permitting such claims. 20.46 It was necessary for the court to make a choice of law in Fluor Australia Pty Ltd v ASC Engineering Pty Ltd,143 where the plaintiff brought an action in the Supreme Court of Victoria seeking from the defendant (among other things) a contribution or indemnity under the Wrongs Act 1958 (Vic) in respect of liability for breach of contract that the plaintiff had incurred to a third party. The Victorian contribution legislation is unique in Australia in that it confers a right to contribution ‘whatever the legal basis of liability, whether tort, breach of contract, breach of trust or otherwise’,144 whereas the legislation in the other states and territories confines rights of contribution to tortfeasors.145 The underlying liability for which the plaintiff sought contribution was breach of a contract governed by Western Australian law, and the allegedly tortious acts of the defendant which the plaintiff said gave it a right to contribution took place in South Australia and Western Australia. The only connection with Victoria was that the plaintiff had brought its action there. Because of the difference in the relevant legislation, the plaintiff would have been entitled to recover if Victorian law governed the right to contribution, but not if the Western Australian (or South Australian) legislation governed. Although Bongiorno J said that the John Pfeiffer principle applied to the right to contribution in the same way that it does to a claim in tort, it seems that he was referring to the principle stated in John Pfeiffer that the choice-of-law rules for Australia are provided by the common law adopted to the Australian Constitution, rather than the lex loci delicti choice-of-law rule adopted in John Pfeiffer.146 The plaintiff had argued that the relevant choice-of-law test was a statutory lex fori rule to be found in the Wrongs Act 1958 (Vic) s 23B(6), which overrode the common law choice-of-law rules. Bongiorno J rejected that argument as being inconsistent with John Pfeiffer and held that the unique Victorian remedy of contribution should be available only when Victorian law applied ‘by the application of the appropriate common law choice-of-law rules’.147 Like the courts in Borg Warner and Sweedman before him, Bongiorno J found it unnecessary to decide how the right to a contribution should be characterised or what common law choice-of-law rule should be applied, because all conceivable rules pointed away from Victoria. Bongiorno J said:148

In this case, whether [the plaintiff’s] claim for contribution is characterised as being restitutionary or delictual or characterised by reference to the juridical nature of its

[page 500] wrongdoing or that of [the defendant], no matter what common law choice of law rule was invoked the law of Victoria would never be the appropriate law to be applied.

20.47 The rejection of the tort analogy by the Sweedman court in relation to statutory claims for indemnity casts doubt on the wisdom of its use in this context. Application of a place-of-the-wrong test necessarily requires determination of where the ‘wrong’ occurred. Does the right to contribution arise in the place of the wrong committed by the person seeking contribution, the place of the wrong committed by the person from whom contribution is sought, or is it possible to give it a location independent of the underlying claims? The difficulty attending these questions suggests that it may be better to abandon the notion that the right is ‘tort-like’, and thus to abandon use of the lex loci delicti test in favour of a choice-of-law rule that focuses on the nature of the right itself. Although statutory in form, the right to contribution is essentially equitable in character: the contributing tortfeasor is required to make contribution because it would be unfair to allow the other tortfeasor to bear more than its fair share of the underlying claim.149 20.48 The defendant in Fluor Australia (see 20.46 above) advocated use of the ‘closest connection’ test considered in Sweedman. As noted at 20.46, such a test may prove to be vague and unpredictable. It would be preferable to adopt a choice of law test that focuses solely on the source of the compulsion. In contribution cases, the source of the compulsion is the unfairness that arises as a result of the fact that the law governing the underlying claim requires the person seeking contribution to compensate the underlying claimant in full. That should be the law that governs the right to contribution, even if the wrong committed by the person from whom contribution is sought is governed by another law. Such a rule would have the advantage of certainty and it would provide the same outcome no matter where the underlying claim is brought. For example, in Baldry v Jackson,150 a passenger in a car (Fanning) sued the driver of that car (Baldry) in New South Wales after he was injured in a collision on a road in Queensland. Baldry sought contribution from the driver of the other car (Jackson) in an action in New South Wales. The underlying claim by Fanning against Baldry would now be governed by Queensland law under the rule in

John Pfeiffer. Application of Queensland law by the New South Wales court would lead to Baldry being required to compensate Fanning in full, because Queensland law still recognises joint and several liability for personal injuries. Queensland law also redresses the potential unfairness created by joint and several liability by providing a right to contribution from joint tortfeasors. It should be Queensland law that is applied in these circumstances to redress the unfairness that would otherwise arise as a result of application of Queensland law to the underlying claim. 20.49 Adoption of this rule will have little significance in intra-Australian cases because the Australian law of contribution is uniform between states and territories, [page 501] with the single exception that, as noted in Fluor Australia, the Victorian legislation applies to all kinds of claims. The rule may, however, be significant in international cases, not least because all Australian states and territories have adopted proportionate liability for claims concerning economic loss or property damage, thereby making the right to contribution redundant.151 Conflicts may arise in relation to contribution claims when the underlying liability is governed by a foreign law that has not replaced joint and several liability with proportionate liability in such cases.

Right of recourse against third party insurer 20.50 Some civil law jurisdictions give a plaintiff a direct right of recourse against the liability insurer of the person who wrongfully caused them loss.152 Should the availability of such a right be governed by the law that would govern the tort claim against the person causing the harm, or by the law governing the contract of liability insurance between that person and their insurer? There are strong reasons for preferring the former solution, treating the direct action statute not as creating an independent cause of action against the insurer, but rather as giving the plaintiff a right to pursue the insurer on the cause of action that they would have against the insured.153 However, in Youell v Kara Mara Shipping Co Ltd,154 Aikens J of the English High Court held that a direct action statute should be characterised as conferring

on the plaintiff a statutory right to make a claim on the liability insurance contract between the insured and the defendant insurer, to enforce an indemnity for the liability owed by the insured to the plaintiff.155 Thus, Aikens J held that the plaintiff’s right of direct action was subject to an arbitration clause in the insurance contract. This seems highly undesirable. There seems to be little reason to treat the right of recourse against an insurer any differently from cases of vicarious liability, where the law governing the tort claim against the actual wrongdoer also governs the right to make their employer vicariously liable for that wrong. 20.51 A somewhat similar issue has arisen in relation to legislation in the Australian Capital Territory and New South Wales that imposes a charge on a policy of insurance in favour of the person injured by the insured, which is in certain circumstances [page 502] enforceable by way of cause of action against the insurer.156 It has been held that this cause of action when given by the law of the forum is enforceable if the risk insured was within the jurisdiction, even if the policy was issued under the law of another Australian jurisdiction.157 20.52 The Australian Law Reform Commission has recommended that a right of direct recourse should be enforced if it exists under the law of the place of wrong, the law of the place of insurance or (in the case of motor vehicles) the law of the place of registration, irrespective of the law to be applied to the tort itself.158 20.53 In Australian jurisdictions without no-fault motor vehicle compensation schemes, provision is made for a plaintiff to proceed against a nominal defendant if the driver negligently causing them harm is either uninsured or unknown.159 Such legislation imposes an obligation on the nominal defendant only in relation to vehicles registered in the state in question or, if the vehicle cannot be identified, in relation to accidents occurring within the jurisdiction.160

Wrongful death 20.54 At common law no action could lie in respect of the death of a human being, nor could an action for personal injury survive death. In virtually all

common law jurisdictions those restraints have been removed by legislation, although conflicts can still arise because the legislation is not always identical. Typically such legislation provides for a claim for compensation to arise or to continue in favour of the estate or dependants of the deceased if the deceased would have had a cause of action had they lived.161 In Koop v Bebb,162 the High Court suggested two alternative approaches to the choice-of-law question raised when a fatal accident occurs in a jurisdiction other than the forum: first, that the statutory action be treated as tortious in character; alternatively, that the statute of the forum be viewed as granting a remedy for wrongful death provided the deceased would have had a cause of action against the defendant for the tortious act causing the death, had they lived. In Koop v Bebb itself, the tort choice-oflaw rule applied by the court was the rule in Phillips v Eyre. Nevertheless, the two alternative approaches are quite independent of, and not dictated by, the nature of the rule in Phillips v Eyre, and both remain open for adoption even after abandonment of Phillips v Eyre in John [page 503] Pfeiffer Pty Ltd v Rogerson163 and Regie Nationale des Usines Renault SA v Zhang.164 Under the John Pfeiffer/Zhang test, the first of the two Koop approaches would simply lead to application of the wrongful death legislation of the place of the wrong. The second of the two Koop approaches would lead to application of the wrongful death legislation of the forum if the deceased would have had a cause of action by the law of the place of the wrong if they had survived. 20.55 In interstate cases, it may seldom (if ever) be significant which of the two Koop approaches is chosen, because the fatal accidents legislation is similar in all Australian jurisdictions. However, in international cases, it may be necessary to choose between the alternatives considered in Koop, as the law of the place of the wrong may make different provision for wrongful death, or perhaps none at all. In Dyno Wesfarmers Ltd v Knuckey,165 the New South Wales Court of Appeal held that the Zhang choice-of-law rule dictated application of the wrongful death legislation of the place of the wrong — in that case, Papua New Guinea.166 That conclusion is consistent with the observation of the majority in John Pfeiffer that in the context of choice-of-law rules the term ‘tort’ denotes not merely civil wrongs known to the common law but also acts or omissions

rendered wrongful by statute, such as the wrongful death legislation.167 Nevertheless, as pointed out above and notwithstanding what was said in Dyno Wesfarmers,168 the Zhang rule is not necessarily inconsistent with the second Koop alternative. Combining the two would lead to the result that the law of the place of the fatal act or omission would determine its wrongful character by determining whether the deceased would have had a cause of action if they had lived; if that threshold criterion were to be satisfied, it would trigger the dependants’ independent statutory action for wrongful deprivation of support felt within the territory of the Australian forum, which would be governed by the law of that jurisdiction.

Survival of actions 20.56 In all Australian jurisdictions legislation provides that on the death of a person all causes of action subsisting against, or vested in, the deceased shall survive against, or for the benefit of, the estate.169 Since the legislation is not uniform, conflicts may arise. [page 504] 20.57 In Kerr v Palfrey170 a fatal accident occurred in Tasmania involving a driver and passenger who were both domiciled in Victoria. The driver was killed. Relying on the Administration and Probate Act 1958 (Vic) s 29, the passenger sued the estate of the deceased driver in the Supreme Court of Victoria where letters of administration of the estate of the driver had been granted. Under the Administration and Probate Act 1935 (Tas) s 27(5), no cause of action was maintainable unless brought within six months of the grant of letters of administration, and no representation had been taken out in Tasmania. Gillard J followed the second alternative suggested by the High Court in Koop v Bebb, discussed at 20.54 above, and applied the tort choiceof-law test (at that time, the rule in Phillips v Eyre) only to the question of whether a cause of action would have subsisted against the deceased. Because that threshold criterion was satisfied, the Victorian statute operated by itself to allow that cause of action to survive the driver’s death. 20.58 The approach taken in Kerr v Palfrey is inconsistent with the John Pfeiffer/ Zhang lex loci delicti test and it should no longer be regarded as good

law. Unlike an action for wrongful death, which is an independent statutory action in favour of the dependants, the survival legislation extends the existence of the original cause of action against the deceased, which must arise under the law of the place of the wrong if it is to be recognised under the John Pfeiffer/Zhang test. If that cause of action is extinguished by the law of the place of the wrong upon death of the tortfeasor, there is nothing left for the forum court to enforce if it applies a lex loci delicti test. That is quite different from the situation in relation to wrongful death, where the forum court can apply the lex loci delicti test to the preliminary, essentially hypothetical, question of whether the deceased would have had an action if they had survived, but then apply the independent cause of action created by the forum’s own statute. In contrast, the law of the place of the wrong should govern survival of actions if it is substantive in form. If, however, it merely creates a procedural bar to the bringing of an action against a deceased tortfeasor, the forum court should ignore that bar and apply its own survival legislation. 20.59 It follows that Kerr v Palfrey would now be decided differently. Gillard J held that the Tasmanian legislation creating the six-month time limit was procedural, but it would now be regarded as substantive, like all other Australian statutes of limitation.171 Because the cause of the action against the deceased would now be substantively extinguished by the law of the place of the wrong (Tasmania) six months after the grant of probate, there would be no liability to enforce in the Victorian forum after that date. 20.60 As well, the survival legislation in each state and territory restricts the heads of damage that can be recovered in a surviving action on behalf of the estate of a [page 505] deceased person.172 These restrictions are substantive in effect and should be applied as part of the law of the place of the wrong.173

Proceedings under the Australian Consumer Law (Cth)174 20.61 Under s 236 of the Australian Consumer Law (Cth) an action lies for damages in respect of a breach, amongst others, of the provisions of Ch 2 of that

Law dealing with consumer protection. A commonly invoked provision of Ch 2 is s 18 (formerly s 52 of the Trade Practices Act 1974 (Cth)), which prohibits conduct that is misleading or deceptive or is likely to mislead or deceive. The Australian Consumer Law also applies as a law of each state and territory.175 Although it covers much the same area as the torts of fraud and misrepresentation, the statutory action does not lie in tort.176 The majority in John Pfeiffer observed that in the context of choice of law the term ‘tort’ denotes not merely civil wrongs known to the common law, but also acts or omissions rendered wrongful by statute.177 Nevertheless, there are good reasons to believe that the John Pfeiffer/Zhang lex loci delicti rule should not be applied to actions under the Australian Consumer Law. The Australian Consumer Law defines its own sphere of operation in extra-territorial cases in a manner that differs from the tort choice-of-law rule, so it should be applied if it extends by its terms to the conduct in question.178 20.62 The Australian Consumer Law (Cth) extends to conduct outside Australia by bodies corporate incorporated or carrying on business within Australia or by Australian citizens or persons ordinarily resident within Australia.179 However, extra-territorial conduct cannot be relied upon at a hearing except with the consent [page 506] in writing of the Minister.180 Failure to obtain the consent does not prevent the institution of the proceedings but only requires that consent be given before the relief can be granted.181 The Minister must grant that consent unless they are of the opinion that the law of the country where the conduct was engaged in required or specifically authorised that conduct, or it is not in the national interest that the consent be given.182 20.63 There is a breach of s 18 of the Australian Consumer Law (Cth) if a misleading or deceptive statement is made outside but is received within the relevant Australian law area, whether or not it is there acted upon.183 However, it appears that the legislation should also apply when a statement is made within but is received or relied upon outside the relevant Australian law area. For example, in Douglas Pharmaceuticals Ltd v Nutripharm New Zealand Ltd,184 the High Court of New Zealand held that the equivalent prohibition against misleading or deceptive conduct in the Fair Trading Act 1986 (NZ) applied to

misleading labelling of a product in New Zealand for sale in Taiwan.

Family torts 20.64 The Northern Territory and Victoria still permit husbands to bring the ancient common law action for loss of consortium in respect of injuries to their wives, unless the wife is injured in an industrial or transport accident,185 but have not modified the common rule that wives may not bring an equivalent action for loss of their husband’s services. Queensland and South Australia have extended the action to both spouses, which includes ‘domestic partners’ in South Australia.186 The Australian Capital Territory, New South Wales, Tasmania and Western Australia have abolished the action for loss of consortium altogether, so it is not available to either spouse.187 Conflicts may arise as a result of these differences. Although interspousal immunity was abolished throughout Australia by the Family Law Act 1975 (Cth) s 119, conflicts in relation to this issue may arise in international cases if the law of the place of the wrong continues to recognise interspousal immunity. [page 507] 20.65 There has never been a general doctrine of parental immunity in Australia,188 but other jurisdictions do have the doctrine, particularly in the United States, although many American states have now either abolished the doctrine or qualified it with exceptions, particularly when the negligent parent has liability insurance.189 Here, too, there is the potential for conflict in international intra-family cases. 20.66 It has been suggested that the right of a spouse to bring an action for loss of consortium should be regarded as a question of family relations governed by the law of their common domicile. In Lister v McAnulty,190 the plaintiff’s wife was injured in a motor accident in Quebec. The plaintiff brought action in Quebec for loss of consortium and servitium according to the law of that province. However, the couple was domiciled in Massachusetts where the right of action had been abolished. The Supreme Court of Canada denied recovery by reference to the law of the common domicile. In Australia similar reasoning was used to allow the action in Warren v

Warren.191 In that case a Queensland couple went touring in New South Wales. The wife was injured there as the result of the husband’s negligence. Under the law of New South Wales interspousal immunity applied, whereas in Queensland it had been abolished. In the Supreme Court of Queensland, Matthews J separated the issue of immunity from that of tortious liability and applied the law of Queensland, thereby allowing the wife’s action. 20.67 There seems to be no good reason to apply the law of the domicile after the High Court’s adoption of a lex loci delicti rule in John Pfeiffer Pty Ltd v Rogerson192 and Regie National des Usines Renault SA v Zhang.193 Even before John Pfeiffer and Zhang, some Australian courts had regarded the issue of spousal immunity as being one of tortious liability to be determined by application of the tort choice-of-law rule,194 and the Australian Law Reform Commission recommended that all questions of ‘inter family liability’ (sic) be subsumed under the rubric of ‘tort-like’ claims.195 Use of the tort rule seems preferable, both in relation to intra-family immunities and to recovery of damages for loss of consortium or servitium. The High Court in John Pfeiffer made it clear that all questions about the kinds of damage that may be recovered are substantive issues governed by the lex loci delicti,196 which should surely [page 508] include questions about the recoverability of damages for loss of consortium or servitium. Similarly, immunities affecting other defendants are substantive in effect and are governed by the lex loci delicti rule;197 there seems to be no good reason to treat intra-family immunities differently, unless the bar to action under the law of the place of the wrong is plainly procedural.

Pleading and the onus of proof 20.68 In Regie Nationale des Usines Renault SA v Zhang,198 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said that it is not necessary for the plaintiff to plead the law of the place of the wrong in order to establish a cause of action, but: ‘[T]he rule must be that which Dicey regards as “well established”, namely that “a party” who relies on a foreign lex loci delicti “must allege, and, if necessary, prove it”’. Gummow and Hayne JJ explained further in Neilson v Overseas Projects Corp of Victoria:199

If there is thought to be some deficiency in the evidence, the ‘presumption’ that foreign law is the same as the law of the forum comes into play … Neither the absence of pleading the relevant content of foreign law nor the absence of proof would be fatal to the case of the party relying on the relevant provision of foreign law.

If the foreign law of the place of the wrong is less favourable to the plaintiff than the law of the forum, these rules operate to give the plaintiff a considerable practical advantage, by allowing them to use what the Neill Report on English defamation procedure called the ‘daunting tactical ploy’ of simply asserting that foreign law is presumed to be the same as the law of the forum and leaving it to the defendant to incur the cost of showing to the contrary.200 Some small consolation for defendants can be found in Spotwire Pty Ltd v Visa International Service Association (No 2),201 where Bennett J of the Federal Court held that in such a case, the plaintiff is obliged to provide sufficient information in its pleadings by way of material facts and particulars to enable the defendant to form a view about whether to make inquiries about the relevant foreign law. 20.69 The decision of the High Court of Australia in Puttick v Tenon Ltd202 illustrates another way in which the absence of adequate pleading can affect the court’s decision about the lex causae. As noted above at 20.10, the majority in Puttick held that it was impossible to make even a provisional finding about what was the place of commission of the tort alleged, given the state of the pleadings at the time when the defendant moved for a stay of proceedings.203 Because of the ‘exiguous [page 509] form’ of the material about where the alleged tort occurred, the court could only say that there was likely to be ‘a lively dispute’ about choice of law when (and if) the case reached trial.204 20.70 Where the place of the wrong is within Australia, the court may in the course of trial take judicial notice of the law of that place whether it has been pleaded or not.205 There is old authority for the proposition that if counsel fail to draw the attention of the court to the existence of a specific provision in the law of another state or territory, the forum court is entitled to rely on the presumption that the law of the place of wrong is the same as that of the forum.206 But it is questionable whether that principle is still appropriate now that Australian jurisdictions are no longer regarded as foreign to one another.207

Torts Committed on the Sea or in the Air 20.71 Ships and aircraft have some national connection with the country in which they are registered and, as a result, there is at least some basis for applying that country’s law as the law of the place of a tort committed on the ship or aircraft. However, application of the law of the ship’s flag becomes a questionable solution when the ship is in the territorial waters of a country or law area different from that of its nationality at the time the tort occurs. In Union Shipping (NZ) Ltd v Morgan,208 the New South Wales Court of Appeal rejected application of the law of the flag and applied the law of the littoral state, New South Wales, to govern a tort committed on a New Zealand ship moored at a berth in a New South Wales port. The Court of Appeal was careful to point out that it was not stating a universal rule for application to maritime torts committed in territorial waters, but merely deciding that New South Wales law applied in the particular circumstances of that case, where the vessel was at berth in New South Wales, unloading coal onto New South Wales soil.209 Similarly, in Lazarus v Deutsche Lufthansa AG,210 both parties agreed that Indian law was the relevant foreign law in relation to torts allegedly committed on a Germanregistered aircraft on the ground at New Delhi airport. 20.72 So far as torts committed on foreign-flagged vessels at sea in territorial waters are concerned, the leading authority is still MacKinnon v Iberia Shipping Co Ltd.211 In this case the Scottish Court of Session held that the law of the Dominican Republic applied to a tort allegedly committed on a Scottish ship at anchor in the territorial waters of the Dominican Republic. (By analogy, it could be argued that [page 510] torts committed in the air over the airspace of a law area, including its territorial waters, should be governed by the law of that place.)212 As Heydon JA pointed out in Union Shipping (NZ) Ltd v Morgan,213 no case in the British Commonwealth has held or said that MacKinnon was wrongly decided or that the law of the flag should be applied to a tort occurring on a ship in territorial waters. Nevertheless, MacKinnon has long been the subject of academic criticism, principally because of the arbitrariness of a rule that leads to the result that the law governing shipboard torts changes every time the ship sails from

territorial waters to the high sea, or vice versa, particularly when the ship is merely passing through those territorial waters.214 20.73 One solution to this problem is for the law of the littoral state to apply to torts having consequences external to the ship, but the law of the flag to apply to torts having purely internal consequences within the ship’s confines. The distinction between matters of ‘internal economy’ and matters with external consequences has long been significant in the United States in relation to the exercise of criminal and regulatory jurisdiction over foreign-flagged ships in territorial waters.215 The High Court of Australia acknowledged the existence of an ‘internal economy’ rule in a different context in Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc,216 while noting that it falls short of being a normative requirement of customary international law. In Morgan, Heydon JA assumed, without deciding, that a valid distinction could be made under Australian law between ‘external torts’ and ‘internal torts’.217 Applying the distinction required by the ‘internal economy’ rule may not always be easy to do but it would avoid the more arbitrary features of the MacKinnon rule, while admittedly replacing them with an unavoidable degree of uncertainty about governing law. For example, a collision between ships in the territorial sea would be governed by the law of the littoral state whatever their nationality, but a battery committed by one crew member of a ship against another would be governed by the law of the flag — unless, perhaps, the battered crew member required hospital treatment ashore as a result of the battery. 20.74 Morgan’s case (see 20.71) was relied on by the owner of a Chineseflagged ship in Daebo International Shipping Co Ltd v The Ship Go Star,218 in relation to a claim of conversion and detinue made by the ship’s charterer. The charterer alleged that the owner had converted the ship’s bunkers (ie, its fuel oil) by appropriating them while the ship was in Chinese territorial waters, and detained them by refusing to deliver them on demand in Albany, Western Australia. A Full Court of the Federal [page 511] Court of Australia held that the charterer did not have title to sue in conversion or detinue because title in the bunkers had passed from the charterer to a subcharterer under a charterparty contract, before the alleged acts of conversion and detinue. Having found that title had passed under the contract, which was

governed by English law, the Full Court said that it was not necessary to consider whether title would have passed under Chinese law.219 It is not clear, however, whether the Full Court accepted the shipowner’s argument that the tort of conversion was governed by Chinese law, under which the charterer would only have standing to sue if it had title to the bunkers at the time of the conversion.220 The Full Court’s conclusion that the charterer did not have title to the bunkers at the relevant time would have disposed of its claim under Chinese law, but perhaps not under Australian law, as title to sue in conversion and detinue under Australian law depends not on title but on the right to immediate possession.221 It is not clear whether the Full Court was applying Australian law or Chinese law to the requirements of the tort. 20.75 In relation to torts committed on the high seas, Gleeson CJ, Gummow, Hayne and Heydon JJ asked the following rhetorical question in Blunden v Commonwealth:222 [W]here, as in this case, the relevant events giving rise to a ‘maritime tort’ occurred on the high seas, one asks what body of law other than that in force in the forum has any better claim to be regarded by the forum as the body of law dispositive of the action litigated in the forum?

The obvious answer is that the law of the flag may have a better claim, at least in relation to matters of ‘internal economy’. Gleeson CJ, Gummow, Hayne and Heydon JJ went on to note that the law of the flag of a foreign vessel may be significant in ‘internal economy’ cases, without stating whether that significance should be regarded as dispositive.223 Taken together, these two obiter dicta hint at a solution by which the law of the forum applies to torts on the high seas, except in cases that are confined to the ‘internal economy’ of a ship, which are governed by the law of the flag. The relevant law of the forum would be the common law of Australia, including what sometimes has been called ‘the general principles of maritime law or the maritime law of the world’, which is Australian municipal law but which takes into account the international nature of events on the high seas.224 Thus, for example, an Australian court considering a collision between foreign-flagged ships on the high seas would apply Australian law, which in that context would be Australia’s enactment of the 1972 Convention on the International Regulations for Preventing Collisions at Sea.225 [page 512] 20.76 The solution hinted at by Gleeson CJ, Gummow, Hayne and Heydon JJ

in Blunden has much to commend it. It would avoid some of the problems that might be caused by a blanket application of the law of the flag. For example, in Gordon v Norwegian Capricorn Line (Aust) Pty Ltd,226 the plaintiff, a Victorian resident, suffered a serious heart attack on a cruise ship operated by the defendant, an Australian corporation, on a cruise between Sydney and Noumea. The plaintiff sued in the Supreme Court of Victoria, complaining of negligent medical treatment by the ship’s doctor. Both parties accepted that the substantive law to be applied was the law of New South Wales, which obviated the need for a detailed consideration of choice of law.227 However, the alleged negligence in question and the resulting exacerbation of the plaintiff’s heart condition apparently occurred on the high seas on a ship registered in the Bahamas.228 A rigid application of the law of the flag would dictate application of the law of the Bahamas, which seems undesirable in the circumstances, given the strength of the connection with Australia. The approach suggested by Gleeson CJ, Gummow, Hayne and Heydon JJ in Blunden would allow application of Australian law as the law of the forum, if the alleged tort could be classified as being one that went beyond the ‘internal economy’ of the ship. The relevant law would, however, be the law of the Victorian forum, not New South Wales law. The only basis for applying New South Wales law in these circumstances (absent the parties’ agreement) would be some kind of ‘proper law of the tort’ approach or a ‘flexible exception’ to application of the law of the flag, both of which were rejected for land-based torts in John Pfeiffer and Zhang, or a multi-factor test like that used for maritime torts in the United States, which has proved to be unpredictable and difficult to apply.229 20.77 Blunden itself was concerned with a claim arising as a result of a collision between two Australian naval ships (HMAS Voyager and HMAS Melbourne) on the high seas. Many years before, Windeyer J sitting in the original jurisdiction of the High Court in Melbourne had held in Parker v Commonwealth230 that the law to be applied to determine liability in relation to the same collision was Commonwealth law, but because that law knew of no fatal accidents legislation per se, the gap should be filled by the application of the Wrongs Act 1958 (Vic) by operation of the [page 513] Judiciary Act 1903 (Cth) ss 79 and 80, Melbourne being the place where the claim was brought. In Blunden, the question at issue was time limitation and the

High Court held that the limitation law ‘picked up’ by s 80 of the Judiciary Act 1903 (Cth) to fill the gap in Commonwealth law was the law of the Australian Capital Territory, the Australian law area in which the plaintiff’s claim was brought. ____________________ 1.

See, eg, Murakami v Wiryadi (2010) 268 ALR 377 at 396, per Spigelman CJ referring to this as the ‘no advantage’ principle.

2.

See Chapter 16 above.

3.

[1974] VR 164.

4.

191 NE 2d 279 (1963).

5.

See note 4 above, at 283 per Fuld J.

6.

Symeon Symeonides, The American Choice-of-Law Revolution: Past, Present and Future, Nijhoff, Leiden, 2006.

7.

See note 6 above, at p 65.

8.

See note 6 above, at p 13, citing D Cavers, ‘A Critique of the Choice-of-Law Problem’ (1933) 47 Harv L Rev 173, 178. Ten American states continue to apply the traditional law of the place of the wrong (lex loci delicti) test: see note 6 above, at p 65.

9.

(1870) 6 LR QB 1. The rule in Phillips v Eyre was not authoritatively adopted as part of Australian law until Koop v Bebb (1951) 84 CLR 629.

10. (2000) 203 CLR 503; 172 ALR 625. 11. (2002) 210 CLR 491; 187 ALR 1. 12. Tolofson v Jensen; Lucas v Gagnon [1994] 3 SCR 1022; 120 DLR (4th) 289. 13. [1971] AC 356. 14. Private International Law (Miscellaneous Provisions) Act 1995 (United Kingdom) s 12. 15. [1971] AC 356 at 391 per Lord Wilberforce. 16. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 538; 172 ALR 625 at 646 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 517, 520; 187 ALR 1 at 18, 20, at [66], [75] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 17. (2002) 210 CLR 491 at 520; 187 ALR 1 at 20, at [76] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 18. See 3.73–3.77 above. 19. David Syme & Co Ltd v Grey (1992) 38 FCR 303 at 314; 115 ALR 247 at 258 per Gummow J. 20. See, for the possibility of multiple fora: Moran v Pyle National (Canada) Ltd (1973) 43 DLR (2d) 239; Patrick Grehan v Medical Inc and Valley Pine Associates [1986] IR 528. 21. For intranational torts, the locus delicti is not Australia, but the state or territory where the tort occurred: Martens v Stokes [2013] 1 Qd R 136; 287 ALR 779 at 793, [57] per Wilson AJA. 22. Armagas Ltd v Mundogas SA [1986] AC 717 at 752–3 per Dunn LJ. 23. Monro (George) Ltd v American Cyanamid and Chemical Corp [1944] KB 432; Lewis Construction Co Pty Ltd v Tichauer SA [1966] VR 341; Buttigeig v Universal Terminal and Stevedoring Corp [1972]

VR 626. 24. (1990) 171 CLR 538 at 567; 97 ALR 124 at 143 per Mason CJ, Deane, Dawson and Gaudron JJ. 25. [1971] AC 458 at 468 per Lord Pearson. 26. (2000) 203 CLR 503 at 538–9; 172 ALR 625 at 647. 27. (2002) 210 CLR 575 at 606; 194 ALR 433 at [43] per Gleeson CJ, McHugh, Gummow and Hayne JJ. 28. Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458 at 467 per Lord Pearson; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 567; 97 ALR 124 at 143 per Mason CJ, Deane, Dawson, and Gaudron JJ. 29. This term was used by Slade LJ in Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 at 446 to describe the situation where the relevant events constituting the tort occur in more than one country. 30. See note 29 above, at 446. See also Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 568; 97 ALR 124 at 144 per Mason CJ, Deane, Dawson and Gaudron JJ. 31. See, for example, Buttigeig v Universal Terminal and Stevedoring Corp [1972] VR 626; D’ Ath v TNT Australia Pty Ltd [1992] 1 Qd R 369; ICI Australia Operations Pty Ltd v Kidde-Graviner Ltd [1999] WASCA 65; Porter v Bonojero Pty Ltd [2000] VSC 265; Electro Optic Systems Pty Ltd v New South Wales [2012] ACTSC 184; Wadley v Ron Finemore Bulk Haulage Pty Ltd [2013] VSC 5. Compare Hodgson v Dimbola Pty Ltd [2009] ACTSC 59 (tort occurs where injury occurs). 32. (1951) 84 CLR 629. 33. See note 32 above, at 645. This conclusion is supported by ALRC Report No 58, Choice of Law, para 6.38. 34. See, for example, Granite Springs Pty Ltd v Intercooler Water Dispensers Pty Ltd [2000] VSC 224 at [13]–[15] per Warren J. 35. (2008) 238 CLR 265; 250 ALR 582. 36. See 8.34 above. 37. (2008) 250 ALR 582 at 587–8, at [21] per French CJ, Gummow, Hayne and Kiefel JJ. 38. See note 37 above at 590, at [32] per French CJ, Gummow, Hayne and Kiefel JJ. On this aspect of the case, see 8.34 above. 39. Amaca Pty Ltd v Frost (2006) 67 NSWLR 635; British American Tobacco Australia Services Ltd v Laurie [2009] NSWSC 83. 40. See, for example, Pulido v R S Distributions Pty Ltd (2003) 177 FLR 401 (failure to warn of inherent risks of laser eye surgery occurred in the Australian Capital Territory; surgery performed in New South Wales; tort located in the Australian Capital Territory). 41. [1971] AC 458. See also Hamilton v Merck & Co Inc (2006) 66 NSWLR 48. 42. Monro (George) Ltd v American Cyanamid and Chemical Corp [1944] KB 432. 43. See Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 at 445–6 per Slade LJ. This is of particular relevance in electronic commerce where a foreign seller seeks to market its products on the Internet. 44. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 569 per Mason CJ, Deane, Dawson and Gaudron JJ; Agar v Hyde (2000) 201 CLR 552 at 591; 173 ALR 665 at 693 per Callinan J. 45. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 568; Delco Australia Pty Ltd v Equipment Enterprises Incorp (2000) 100 FCR 385 at [30] per von Doussa J; Aussie Home Security Pty Ltd v Sales Systems Australia Pty Ltd (2000) 172 ALR 141 at 155, at [65] per Katz J; Telesto Investments Ltd

v UBS AG (2012) 262 FLR 119. 46. Hunter Grain Pty Ltd v Hyundai Merchant Marine Co Ltd (1993) 117 ALR 507 at 520–1; Telesto Investments Ltd v UBS AG (2012) 262 FLR 119. 47. Martens v Stokes [2013] 1 Qd R 136; 287 ALR 779 at 792, [51] per Wilson AJA. 48. (2002) 210 CLR 575; 194 ALR 433. 49. See note 48 above at CLR 600; ALR 440 at [26]. 50. (1973) 22 FLR 181. 51. See note 50 above, at 183. 52. (2000) 203 CLR 503; 172 ALR 625. 53. (1975) 26 FLR 238 at 241. 54. Civil Law (Wrongs) Act 2002 (ACT), s 123; Defamation Act 2005 (NSW), s 11; Defamation Act 2006 (NT), s 10; Defamation Act 2005 (Qld), s 11; Defamation Act 2005 (SA), s 11; Defamation Act 2005 (Tas), s 11; Defamation Act 2005 (Vic), s 11; Defamation Act 2005 (WA), s 11. 55. Civil Law (Wrongs) Act 2002 (ACT), s 123(2); Defamation Act 2005 (NSW), s 11(2); Defamation Act 2006 (NT), s 10(2); Defamation Act 2005 (Qld), s 11(2); Defamation Act 2005 (SA), s 11(2); Defamation Act 2005 (Tas), s 11(2); Defamation Act 2005 (Vic), s 11(2); Defamation Act 2005 (WA), s 11(2). 56. Civil Law (Wrongs) Act 2002 (ACT), s 123(3); Defamation Act 2005 (NSW), s 11(3); Defamation Act 2006 (NT), s 10(3); Defamation Act 2005 (Qld), s 11(3); Defamation Act 2005 (SA), s 11(3); Defamation Act 2005 (Tas), s 11(3); Defamation Act 2005 (Vic), s 11(3); Defamation Act 2005 (WA), s 11(3). See Carey v Australian Broadcasting Corporation (2010) 77 NSWLR 136. 57. [1970] 2 All ER 106. 58. (2006) 230 ALR 297. 59. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 568 per Mason CJ, Deane, Dawson and Gaudron JJ. See also Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 2) (2012) 266 FLR 243. 60. Hunter Grain Pty Ltd v Hyundai Merchant Marine Co Ltd (1993) 117 ALR 507 at 520–1 per Sheppard J. Contrast Armagas Ltd v Mundogas SA [1986] AC 717 at 740–1 per Robert Goff LJ. 61. Conagra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302. 62. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 568; Mecklermedia Corp v D C Congress GmbH [1998] Ch 40. 63. Conagra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302. 64. [1990] 1 QB 391. 65. See note 64 above, at 445–6. 66. (1988) 49 SASR 380. 67. [2012] FCAFC 156. 68. Szalatnay-Stacho v Fink [1947] KB 1. 69. Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 at 446–7 per Slade LJ. 70. Commonwealth of Australia, Review of the Law of Negligence: Final Report, Canberra, 2002 (Ipp Panel Report). 71. See note 70 above, para 2.1, Recommendation 1.

72. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 544; 172 ALR 625 at 651, at [102] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 73. See note 72 above at CLR 542–3; ALR 650 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 520; 187 ALR 1 at 21, at [76] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 74. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 543–4; 172 ALR 625 at 651, at [99], citing McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 39; 104 ALR 257 at 267 per Mason CJ. 75. (1980) 146 CLR 40 at 478; 29 ALR 217 at 221 per Mason J. 76. Civil Law (Wrongs) Act 2002 (ACT) s 43(1)(b); Civil Liability Act 2002 (NSW) s 5B(1)(b); Civil Liability Act 2003 (Qld) s 9(1)(b); Civil Liability Act 1936 (SA) s 32(1)(b); Civil Liability Act 2002 (Tas) s 11(1)(b); Wrongs Act 1958 (Vic) s 48(1)(b); Civil Liability Act 2002 (WA) s 5B(1)(b). See B McDonald, ‘ The Impact of the Civil Liability Legislation on Fundamental Policies and Principles of the Common Law’ (2006) 14 TLJ 268. 77. Civil Law (Wrongs) Act 2002 (ACT) s 45(1); Civil Liability Act 2002 (NSW) s 5D(1); Civil Liability Act 2003 (Qld) s 11(1); Civil Liability Act 1936 (SA) s 34(1); Civil Liability Act 2002 (Tas) s 13(1); Wrongs Act 1958 (Vic) s 51(1); Civil Liability Act 2002 (WA) s 5C(1). 78. Civil Law (Wrongs) Act 2002 (ACT) s 45(3); Civil Liability Act 2002 (NSW) s 5D(4); Civil Liability Act 2003 (Qld) s 11(4); Civil Liability Act 1936 (SA) s 34(3); Civil Liability Act 2002 (Tas) s 13(4); Wrongs Act 1958 (Vic) s 51(4); Civil Liability Act 2002 (WA) s 5C(4). 79. Civil Liability Act 2002 (NSW) s 5R(1); Civil Liability Act 2003 (Qld) s 23(1); Civil Liability Act 1936 (SA) s 44(1); Civil Liability Act 2002 (Tas) s 23(1); Wrongs Act 1958 (Vic) s 62(1); Civil Liability Act 2002 (WA) s 5K(1). 80. Ipp Panel Report, see note 70 above, para 8.10. 81. (2002) 211 CLR 317; 191 ALR 449. 82. Civil Law (Wrongs) Act 2002 (ACT) ss 32–36; Civil Liability Act 2002 (NSW) ss 27–33; Civil Liability Act 1936 (SA) s 33; Civil Liability Act 2002 (Tas) ss 29–35; Wrongs Act 1958 (Vic) ss 67– 75; Civil Liability Act 2002 (WA) s 5Q– T. See D Butler, ‘Gifford v Strang and the New Landscape for Recovery for Psychiatric Injury in Australia’ (2004) 12 TLJ 108. 83. Civil Law (Wrongs) Act 2002 (ACT) s 110; Civil Liability Act 2002 (NSW) s 42; Civil Liability Act 2003 (Qld) s 35; Civil Liability Act 2002 (Tas) s 38; Wrongs Act 1958 (Vic) s 83; Civil Liability Act 2002 (WA) s 5W. 84. Civil Law (Wrongs) Act 2002 (ACT) s 112; Civil Liability Act 2002 (NSW) s 44; Civil Liability Act 2002 (Tas) s 41. These provisions almost remove the right to damages altogether: see M Davies & I Malkin, Torts, 6th ed, LexisNexis Butterworths, Sydney, 2012, pp 611–12. 85. Civil Law (Wrongs) Act 2002 (ACT) s 5; Civil Liability Act 2002 (NSW) ss 55–58; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 8; Civil Liability Act 2003 (Qld) ss 25–27; Law Reform Act 1995 (Qld) ss 15–16; Civil Liability Act 1936 (SA) s 74; Wrongs Act 1958 (Vic) ss 31A–31D; Civil Liability Act 2002 (WA) ss 5AB–5AE. 86. Civil Liability Act 2002 (NSW) ss 58A–58C; Civil Liability Act 2003 (Qld) ss 39(2)–(4); Wrongs Act 1958 (Vic) ss 31E–31H; Volunteers and Food and Other Donors (Protection from Liability) Act 2002 (WA). 87. Civil Law (Wrongs) Act 2002 (ACT) s 113; Civil Liability Act 2002 (NSW) s 45; Civil Liability Act 2003 (Qld) s 37; Civil Liability Act 2002 (Tas) s 42; Road Management Act 2004 (Vic) ss 102–103; Civil Liability Act 2002 (WA) s 5Z. These statutory provisions did not completely restore the preBrodie position, because roads authorities remain liable for nonfeasance when they knew or ought reasonably to have known of the particular risk that caused the harm, which would mean that Gorringe

v Transport Commission (Tasmania) (1950) 80 CLR 357 would be decided differently, even after the legislation was passed. 88. (2001) 206 CLR 512; 180 ALR 145. 89. Volunteers Protection Act 2003 (Cth); Civil Law (Wrongs) Act 2002 (ACT) ss 6–11; Civil Liability Act 2002 (NSW) ss 59–66; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 7; Civil Liability Act 2003 (Qld) ss 38–44; Volunteers Protection Act 2001 (SA); Civil Liability Act 2002 (Tas) ss 44– 49; Wrongs Act 1958 (Vic) ss 34–42; Volunteers and Food and Other Donors (Protection from Liability) Act 2002 (WA). See M McGregor-Lowndes and L Nguyen, ‘ Volunteers and the New Tort Law Reform’ (2005) 13 TLJ 41. 90. Civil Law (Wrongs) Act 2002 (ACT) s 102(2). 91. In the Northern Territory, South Australia, Tasmania and Western Australia, the legislation providing for apportionment or liability in cases of contributory negligence specifically provides that it applies to actions for breach of statutory duty: see Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 15(1) (definition of ‘wrong’); Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 3(1) (definition of ‘negligent wrongdoing’); Wrongs Act 1954 (Tas) s 2 (definition of ‘wrongful act’); Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA) s 3 (‘negligence’ includes breach of statutory duty). In New South Wales, Queensland and Victoria, the apportionment legislation applies to ‘liability in tort in respect of which a defence of contributory negligence is available at common law’: see Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 8 (definition of ‘wrong’); Law Reform Act 1995 (Qld) s 5 (definition of ‘wrong’); Wrongs Act 1958 (Vic) s 25 (definition of ‘wrong’). In Piro v W Foster & Co Ltd (1943) 68 CLR 313 the High Court of Australia held that contributory negligence was a complete defence at common law to an action for breach of statutory duty. 92. See 16.27–16.35 above. 93. See 16.27 above. 94. Civil Liability Act 2002 (NSW) s 5F(1); Civil Liability Act 2003 (Qld) s 13(1); Civil Liability Act 1936 (SA) s 36(1); Civil Liability Act 2002 (Tas) s 15(1); Wrongs Act 1958 (Vic) s 53(1). 95. Civil Liability Act 2002 (NSW) s 5G(1); Civil Liability Act 2003 (Qld) s 14(1); Civil Liability Act 1936 (SA) s 37(1); Civil Liability Act 2002 (Tas) s 16(1); Wrongs Act 1958 (Vic) s 54(1). 96. Insurance Commissioner v Joyce (1948) 77 CLR 39; Roggenkamp v Bennett (1950) 80 CLR 292 at 800 per McTiernan and Williams JJ. 97. See note 74 above. 98. Civil Liability Act 2002 (NSW) ss 5F–5G; Civil Liability Act 2003 (Qld) ss 13–14; Civil Liability Act 1936 (SA) ss 36–37; Civil Liability Act 2002 (Tas) ss 15–16; Wrongs Act 1958 (Vic) s 53. 99. Civil Law (Wrongs) Act 2002 (ACT) s 95(1), (2); Civil Liability Act 2002 (NSW) s 50(1), (3); Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 14; Civil Liability Act 2003 (Qld) s 47(1)–(3); Civil Liability Act 1936 (SA) s 46(1), (2); Civil Liability Act 2002 (Tas) s 5(1), (4); Civil Liability Act 2002 (WA) s 5L(1)–(3). In each jurisdiction except New South Wales the presumption can also be rebutted by proof that the intoxication was not self-induced. 100. S S Fortunato Figari v S S Coogee (1904) 29 VLR 874 at 900 per Madden CJ. 101. (1998) 195 CLR 232; 156 ALR 517. 102. (2001) 205 CLR 434; 178 ALR 577. 103. See, for example, Rosenberg v Percival (2001) 205 CLR 434 at 443; 178 ALR 577 at 582 per McHugh J: ‘ The test is a subjective test. It is not decisive that a reasonable person would or would not have undertaken the surgery’.

104.

Civil Liability Act 2002 (NSW) s 5D(3)(a); Civil Liability Act 2003 (Qld) s 11(3)(a); Civil Liability Act 2002 (Tas) s 13(3)(a); Civil Liability Act 2002 (WA) s 5C(3)(a).

105. Civil Liability Act 2002 (NSW) s 5D(3)(b); Civil Liability Act 2003 (Qld) s 11(3)(b); Civil Liability Act 2002 (Tas) s 13(3)(b); Civil Liability Act 2002 (WA) s 5C(3)(b). 106. See note 105 above. 107. See 16.23 above. 108. Civil Law (Wrongs) Act 2002 (ACT) Ch 7A; Civil Liability Act 2002 (NSW) Pt 4; Proportionate Liability Act 2005 (NT) Pt 2; Civil Liability Act 2003 (Qld) Ch 2 Pt 2; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) Pt 3; Civil Liability Act 2002 (Tas) Pt 9A; Wrongs Act 1958 (Vic) Pt IVAA; Civil Liability Act 2002 (WA) Pt 1F. 109. Civil Law (Wrongs) Act 2002 (ACT) s 107F(1)(a); Civil Liability Act 2002 (NSW) s 35(1)(a); Proportionate Liability Act 2005 (NT) s 13(1)(a); Civil Liability Act 2003 (Qld) s 31(1)(a) (‘just and equitable’); Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 8(2)(a) (‘fair and equitable’); Civil Liability Act 2002 (Tas) s 43B(1)(a); Wrongs Act 1958 (Vic) s 24AI(1)(a); Civil Liability Act 2002 (WA) s 5AK(1)(a). 110. Civil Law (Wrongs) Act 2002 (ACT) s 107F(2)(b); Civil Liability Act 2002 (NSW) s 35(3)(b); Proportionate Liability Act 2005 (NT) s 13(2)(b); Civil Liability Act 2003 (Qld) s 31(3). The Competition and Consumer Act 2010 (Cth) s 87CD(3)(b) makes similar provision in relation to ‘apportionable claims’ for misleading or deceptive conduct under the Australian Consumer Law, s 18. No choice-of-law issues can arise in relation to that provision, however, because it applies throughout the Commonwealth. 111. Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 8(2)(b); Civil Liability Act 2002 (Tas) s 43B(3)(b); Civil Liability Act 2002 (WA) s 5AK(3)(b). 112. Wrongs Act 1958 (Vic) s 24AI(3). 113. Civil Liability Act 2002 (Tas) s 43B(3)(b); Civil Liability Act 2002 (WA) s 5AK(3)(b). 114. Civil Liability Act 2002 (NSW) s 5Q(1); Wrongs Act 1958 (Vic) s 61(1). 115. See the Ipp Panel Report, above at note 70, Recommendation 43. The Report gives the example of a person injured by the negligence of an independent contractor suing the ‘employer’ of the negligent contractor, alleging breach of a non-delegable duty: at para 11.14. The legislation would apply to the action against the negligent independent contractor but not the defendant. The legislation under consideration implements Recommendation 43, which was designed to remove that possibility. 116. See, for example, Pertsch v P T John Holland Constructions Indonesia [2001] QSC 127. 117. That was the final outcome in Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; 221 ALR 213, where the plaintiff alleged both breach of a contract of employment governed by Victorian law and negligence in relation to injuries sustained in China. The trial judge held that the defendant was not liable to the plaintiff in contract because the implied term on which she relied was not part of the contract: see Neilson v Overseas Projects Corp of Victoria Ltd [2002] WASC 231 at [80] per McKechnie J. That part of the decision was not appealed. The defendant was held liable to the plaintiff under the Australian law of torts: see 15.9 above. 118. Coupland v Arabian Gulf Oil Co [1983] 2 All ER 434 at 447–8 per Hodgson J, and on appeal at [1983] 3 All ER 226 at 229 per Robert Goff LJ; Base Metal Trading Ltd v Shamurin [2005] 1 WLR 1157 at 1168–9 per Tuckey LJ. 119. (1999) 197 CLR 1; 161 ALR 155. See also Henderson v Merrett Syndicates Ltd [1995] 2 AC 145. 120. For a counter-argument, see A Briggs, ‘Choice of Choice of Law’ [2003] LMCLQ 12, although that argument was rejected in Base Metal Trading Ltd v Shamurin [2005] 1 WLR 1157 at 1167–8 per

Tuckey LJ. 121. [1971] 3 All ER 163. 122. Canadian Pacific Railway Co v Parent [1917] AC 195; Walpole v Canadian Northern Railway Co [1923] AC 113 at 118; Zivnostienka Banka National Corporation v Frankman [1950] AC 57. 123. [1971] 3 All ER 163 at 166. 124. This view was put forward by Cheshire and North, Private International Law, 12th ed, Oxford University Press, London, 1992, pp 668–9. It does not appear in Cheshire, North and Fawcett, Private International Law, 14th ed, Oxford University Press, London, 2008. 125. For the view that the law governing the contract should apply to all claims arising out of it whether framed in contract or in tort, see Nygh, Autonomy in International Contracts, Clarendon Press, Oxford, 1999, Ch 10. 126. Joss v Snowball (1969) 72 SR (NSW) 218. 127. Liverpool, Brazil and River Plate Steam Navigation Co Ltd v Benham (The Halley) (1868) LR 2 PC 193. 128. The United Kingdom later adopted the same rule as Belgium, imposing vicarious liability for compulsory pilots in the Pilotage Act 1913 (United Kingdom). The position is the same in Australia: see Navigation Act 2012 (Cth) s 326. 129. (2002) 210 CLR 491 at 510–15; 187 ALR 1 at 13–17. 130. See 18.35–18.54. 131. [2011] NSWSC 431 at [77]–[79] per Garling J. 132. (2006) 226 CLR 362; 224 ALR 625. 133. See note 132 above, at CLR 401; ALR 631, at [27] per Gleeson CJ, Gummow, Kirby and Hayne JJ. The majority did not refer to the recommendation of the Australian Law Reform Commission, which was that the statutory right to an indemnity be recognised as a ‘tort-like’ claim to which the tort rule should apply: ALRC Report No 58, Choice of Law (1992), para 6.77. 134. (2006) 226 CLR 362 at 401; 224 ALR 625 at 632, at [29] per Gleeson CJ, Gummow, Kirby and Hayne JJ. 135. See note 134 above, at CLR 402; ALR 632 at [30]. 136. [1982] VR 437. 137. See note 136 above, at 462. 138. (2012) 289 ALR 682. 139. See note 138 above at 692 para [31]. 140. That was the recommendation of the Australian Law Reform Commission: see ALRC Report No 58, Choice of Law (1992), para 6.77. 141. (2006) 226 CLR 362; 224 ALR 625. 142. [1977] 1 NSWLR 494. 143. (2007) 19 VR 458. 144. Wrongs Act 1958 (Vic) s 23A(1). 145. Cf. for example, Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA) s 7(1), which applies ‘where damage is suffered by any person as the result of a tort’. 146. (2007) 19 VR 458 at 473, para [52].

147. See note 146 above, at 474, para [54]. 148. See note 146 above, at 474, para [55]. 149. The equitable nature of the right to contribution is frequently acknowledged in the United States: see Restatement (Second) of Torts (1979) § 886A(2); Northwest Airlines Inc v Transport Workers Union of America AFL-CIO, 451 US 77 at 88, 101 S Ct 1571 at 1579 (1981) (‘Recognition of the right reflects the view that when two or more persons share responsibility for a wrong, it is inequitable to require one to pay the entire cost of reparation’). 150. [1977] 1 NSWLR 494. 151. Civil Law (Wrongs) Act 2002 (ACT) Ch 7A; Civil Liability Act 2002 (NSW) ss 34–39; Proportionate Liability Act 2005 (NT) Pt 2; Civil Liability Act 2003 (Qld) ss 28–33; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) Pt 3; Civil Liability Act 2002 (Tas) Pt 9A; Wrongs Act 1958 (Vic) Pt IVAA; Civil Liability Act 2002 (WA) Pt 1F. 152. Within the United States, Louisiana and Guam are notable examples: see Louisiana Statutes Annotated — Revised Statutes § 22:655; 22 Guam Code Annotated § 18305. 153. That is how the courts in Louisiana themselves characterise the Louisiana direct action statute: see Dumas v US Fidelity & Guaranty Insurance Co, 134 So 2d 45 (1961); Descant v Administrators of Tulane Educational Fund, 639 So 2d 246 at 249 (1994). 154. [2000] 2 Lloyd’s Rep 102. 155. See note 154 above, at 116–17. Aikens J arrived at this conclusion despite the fact that the courts of the jurisdiction granting the direct right of recourse (Louisiana) characterised the right of recourse quite differently: see above note 152. 156. Civil Law (Wrongs) Act 2002 (ACT) ss 206–209; Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 6(1), (4). 157. Cambridge Credit Corp Ltd v Lissenden (1987) 8 NSWLR 411; Dixon v Royal Insurance Australia Ltd (1991) 105 ACTR 1. 158. ALRC Report No 58, Choice of Law (1992), para 7.20. 159. Road Transport (General) Act 1999 (ACT) ss 178–180; Motor Accidents Compensation Act 1999 (NSW) ss 32–34; Motor Accident Insurance Act 1994 (Qld) s 52(2); Motor Vehicles Act 1959 (SA) ss 115–16; Motor Vehicle (Third Party Insurance) Act 1943 (WA) ss 7(3), 8, 15. 160. Oztan v New South Wales Insurance Ministerial Corp (1995) 23 MVR 259 (NSWCA). 161. Civil Law (Wrongs) Act 2002 (ACT) s 24; Compensation (Fatal Injuries) Act 1974 (NT) s 7(1); Compensation to Relatives Act 1897 (NSW) s 3(1); Supreme Court Act 1995 (Qld) s 17; Civil Liability Act 1936 (SA) s 23; Fatal Accidents Act 1934 (Tas) s 4; Wrongs Act 1958 (Vic) s 16; Fatal Accidents Act 1959 (WA) s 4. 162. (1951) 84 CLR 629 at 641. 163. (2000) 203 CLR 503; 172 ALR 625. 164. (2002) 210 CLR 491; 187 ALR 1. 165. [2003] NSWCA 375. 166. See note 165 above, at [37] per Mason P (with whom Handley JA and Young CJ in Eq agreed). 167. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 519–20; 172 ALR 625 at 632, at [21] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 168. See [2003] NSWCA 375 at [18], where Mason P said: ‘It is unnecessary to pour this old wine [meaning Koop] into the new bottles of the current learning [meaning Zhang]’.

169. Civil Law (Wrongs) Act 2002 (ACT) Pt 2.4; Law Reform (Miscellaneous Provisions) Act 1944 (NSW) Pt 2; Law Reform (Miscellaneous Provisions) Act (NT) 1956 Pt II; Succession Act 1981 (Qld) s 66; Survival of Causes of Action Act 1940 (SA); Administration and Probate Act 1935 (Tas) s 27; Administration and Probate Act 1958 (Vic) s 29; Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4. 170. [1970] VR 825. 171. Legislation in each state and territory provides that limitation periods are substantive: Limitation Act 1985 (ACT) ss 55–57; Choice of Law (Limitation Periods) Act 1994 (NT); Choice of Law (Limitation Periods) Act 1993 (NSW); Choice of Law (Limitation Periods) Act 1996 (Qld); Limitation of Actions Act 1936 (SA) s 38A; Limitation Act 1974 (Tas) ss 32A–32D; Choice of Law (Limitation Periods) Act 1993 (Vic); Choice of Law (Limitation Periods) Act 1994 (WA). See 16.8–16.10. 172. Civil Law (Wrongs) Act 2002 (ACT) s 16; Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(2); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 6; Succession Act 1981 (Qld) s 66(2), (2A); Survival of Causes of Action Act 1940 (SA) s 3; Administration and Probate Act 1935 (Tas) s 27(3), (3A); Administration and Probate Act 1958 (Vic) s 29(2), (2A); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4(2), (2a). 173. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 544; 172 ALR 625 at 651, at [100] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 174. Competition and Consumer Act 2010 (Cth), Sch 2. 175. Fair Trading (Australian Consumer Law) Act 1992 (ACT), s 7; Fair Trading Act 1987 (NSW) s 28; Consumer Affairs and Fair Trading Act 1990 (NT); Fair Trading Act 1989 (Qld), s 16; Fair Trading Act 1987 (SA) s 14; Australian Consumer Law (Tasmania) Act 2010 (Tas), s 6; Australian Consumer Law and Fair Trading Act 2012 (Vic) s 8; Fair Trading Act 2010 (WA) s 19. 176. Williams v Society of Lloyd’s [1994] 1 VR 274. But compare Commonwealth Bank v White [1999] 2 VR 681 at 698–9 per Byrne J, suggesting that an action under the Trade Practices Act 1974 (Cth) s 52 action was one ‘in tort’ for purposes of the Victorian rules for service out of the jurisdiction. See Dutson, ‘Characterisation of Product Liability Claims in International Law in England and Australia’ (1997) 19 UQLJ 215. 177. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 519–20; 172 ALR 625 at 632, at [21] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Martens v Stokes [2013] 1 Qd R 136; 287 ALR 779 at 792, [51] per Wilson AJA. 178. Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 at 164 per Gleeson CJ. The Australian Law Reform Commission recommended that the tort rule not apply to ‘situations where a statutory claim has an express field of application which differs from the choice of law rules proposed for torts’: ALRC Report No 58, Choice of Law (1992), para 6.76. 179. Competition and Consumer Act 2010 (Cth) s 5(1). See Bright v Femcare Ltd (2000) 175 ALR 50 at 77, at [78] per Lehane J. 180. See note 178 above, at s 5(3). 181. Natureland Parks Pty Ltd v My-Life Corporation Pty Ltd (1996) 67 FCR 237; 138 ALR 47; Stern v National Australia Bank [1999] FCA 1421 at [152] per Tamberlin J. 182. Competition and Consumer Act 2010 (Cth) s 5(5). 183. Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (1993) 44 FCR 485; Sedgwick Ltd v Bain Clarkson Ltd (1994) 56 FCR 579; Strike v Dive Queensland Inc (1998) ATPR ¶41-605; Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539; 149 ALR 134; Delco Australia Pty Ltd v Equipment Enterprises Incorp (2000) 100 FCR 385 at 391, at [27] per von Doussa J; Pulido v R S Distributions Pty Ltd (2003) 177 FLR 401; Sigma Coachair Group Pty Ltd v Bock Australia Pty

Ltd [2009] NSWSC 684 at [48] per Hall J. 184. (1997) 42 IPR 407. 185. Motor Accidents (Compensation) Act 1979 (NT) s 5; Work Health Act 1986 (NT) s 52; Transport Accident Act 1986 (Vic) s 93; Accident Compensation Act 1985 (Vic) s 135A. 186. Law Reform Act 1995 (Qld) ss 12, 13; Civil Liability Act 1936 (SA) ss 64, 65. 187. Civil Law (Wrongs) Act 2002 (ACT) s 218; Law Reform (Marital Consortium) Act 1984 (NSW) s 3; Civil Liability Act 2002 (Tas) s 28D; Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 3. 188. Harriton v Stephens (2006) 225 CLR 52 at 92; 226 ALR 391 at 421, at [129] per Kirby J; St Mark’s Orthodox Coptic College v Abraham [2007] NSWCA 185 at [31] per Ipp JA. 189. Gibson v Gibson, 479 P 2d 648 at 649 (Cal 1971) (‘ The doctrine of parental immunity for personal torts is only 80 years old, an invention of the American courts’). For a survey of the various positions adopted by the states, see Fields v Southern Farm Bureau Casualty Insurance Co, 87 SW 3d 224 at 229–30 (Ark 2002). 190. [1944] SCR 317; 3 DLR 673. 191. [1972] Qd R 386. 192. (2000) 203 CLR 503; 172 ALR 625. 193. (2002) 210 CLR 491; 187 ALR 1. 194. In both cases, the court applied a tort rule that was abandoned in John Pfeiffer and Zhang: J Schmidt v Government Insurance Office of New South Wales [1973] 1 NSWLR 59 at 71 (the rule in Phillips v Eyre); Corcoran v Corcoran [1974] VR 164 (the ‘flexible exception’). 195. ALRC Report No 58, Choice of Law (1992) para 6.77. 196. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 544; 172 ALR 625 at 651, at [100] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 197. See 20.26 above. 198. (2002) 210 CLR 491 at 518–9; 187 ALR 1 at 19–20, at [70]–[71], citing Collins (ed), Dicey and Morris on The Conflict of Laws, 13th ed, 2000, p 1568. 199. (2005) 223 CLR 331 at 372; 221 ALR 213 at 243, at [125], citing Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 518–9; 187 ALR 1 at 19–20, at [69]–[72] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ (pleading unnecessary) and Richard Fentiman, Proof of Foreign Law in English Courts, 1998, pp 142–58 (proof unnecessary). 200. Sir Brian Neill, Report of the Supreme Court Procedure Committee on Practice and Procedure in Defamation, 1991, p 47, quoted in Fentiman, see note 199 above at p 144. 201. [2004] FCA 571. 202. (2008) 250 ALR 582. 203. (2008) 250 ALR 582 at 587–8, at [21] per French CJ, Gummow, Hayne and Kiefel JJ. 204. See note 202 above, at [21]–[22]. 205. Allsopp v Incorporated Newsagencies Co Pty Ltd (1975) 26 FLR 238 at 242 per Blackburn J; Walker v W A Pickles Pty Ltd [1980] 2 NSWLR 281 at 286 per Hutley JA. 206. Re E & B Chemicals and Wool Treatment Pty Ltd [1939] VLR 278. 207. Allsopp v Incorporated Newsagencies Co Pty Ltd (1975) 26 FLR 238 at 242 per Blackburn J. 208. (2002) 54 NSWLR 690.

209. See note 207 above at 731, at [106] per Heydon JA, 736 at [124] per Santow JA. 210. (1985) 1 NSWLR 188 at 190. Indian law was relevant to one of the two limbs of the rule in Phillips v Eyre, which was the tort choice-of-law test at the time. 211. 1955 SLT 49. 212. Tort actions for death, physical injury or damage to property sustained during air travel to or from or within Australia are precluded by Civil Aviation (Carriers Liability) Act 1961 (Cth) ss 12(2), 13, 35, 36, Sch 2. Claims for death, physical injury or damage to property sustained on, in or under land or water and caused by an aircraft are governed by the Damage by Aircraft Act 1999 (Cth). 213. (2002) 54 NSWLR 690 at 715–6, at [55]–[56]. 214. For a description (and dissection) of the academic criticism, see note 208 above at 716–30, at [64]– [102] per Heydon JA. 215. See, for example, Mali v Keeper of the Common Jail (Wildenhus’ Case), 120 US 1 (1887) (habeas corpus); McCulloch v Sociedad Nacional de Marineros de Honduras, 372 US 10 (1963) (labor relations laws). 216. (2003) 214 CLR 397 at 417–9; 200 ALR 39 at 51–3, at [49]–[54] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ. 217. (2002) 54 NSWLR 690 at 731, at [106] per Heydon JA. 218. [2012] FCAFC 156. 219. See note 218 above, at [82]. 220. See note 218 above, at [82]. 221. Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204; Premier Group Pty Ltd v Followmont Transport Pty Ltd [2000] 2 Qd R 338. 222. (2003) 218 CLR 330 at 340; 203 ALR 189 at 195, at [23] per Gleeson CJ, Gummow, Hayne and Heydon JJ. 223. See note 221 above at CLR 340, ALR 195 at [25]. 224. See note 221 above at CLR 337, ALR 193 at [13]. 225. In this context, Gleeson CJ, Gummow, Hayne and Heydon JJ asked another rhetorical question: ‘In the case of proceedings not brought in Admiralty, but arising out of a collision between vessels of different flags [on the high seas], they may include consideration of whether there is any reason not to apply the law of the forum’: see note 221 above. 226. [2007] VSC 517. 227. See note 225 above, at [5]. 228. The ship Norwegian Star is registered in the Bahamas: see and follow the links to ‘Register of vessels’ and search for ‘Norwegian Star’ (last visited 25 March 2013). The plaintiff’s heart attack occurred one day’s sailing out of Sydney (see [2007] VSC 517 at [12]), long enough for the ship to have left Australian territorial waters without entering those of New Caledonia. 229. The choice-of-law test adopted by the Supreme Court of the United States in Lauritzen v Larsen, 345 US 571 (1953) and modified in Hellenic Lines Ltd v Rhoditis, 400 US 856 (1970) requires the court to consider eight factors, none of which is dispositive in itself: (1) the place of the wrongful act; (2) the law of the ship’s flag; (3) the domicile of the injured party; (4) the domicile of the shipowner; (5) the place of the contract; (6) inaccessibility of the foreign forum; (7) the law of the forum; and (8) the shipowner’s base of operations. The US Court of Appeals for the Second Circuit has observed that the fifth, sixth and seventh factors have no application beyond Lauritzen and should be ignored, and the eighth factor should be expanded by considering the base of operations of all parties: see Carbotrade

SpA v Bureau Veritas, 99 F 3d 86, 1997 AMC 98 (2d Cir 1996). 230. (1965) 112 CLR 295.

[page 514]

Chapter 21

Restitutionary Claims and Equitable Obligations Introduction 21.1 The law of restitution, or unjust enrichment, as a discrete aspect of the law of obligations, has only received recognition as a matter of Australian law in relatively recent times1 and its acceptance could not be described as necessarily warm, welcoming or fully settled.2 Nonetheless, just as the substantive law of restitution has attracted substantial academic attention in Australia3 as well as, of course, in the United Kingdom,4 academic attention has also turned to the question of the appropriate choice-of-law rule (or rules) for restitutionary claims.5 21.2 In relation to the (on one view) partially overlapping field of equitable obligations, Professor Yeo’s carefully considered work, Choice of Law for Equitable Doctrines,6 as embraced by the Singapore Court of Appeal in Rickshaw Investments Ltd v Nicolai Baron von Uexkull,7 has called into question the doctrinal correctness of statements found in a number of Australian cases8 and somewhat rigidly restated in one recent text9 to the effect that equitable issues and claims are governed solely by [page 515] the law of the forum.10 The matter is rendered particularly complex because certain remedies such as a constructive trust which, to an Australian (or perhaps New South Wales) lawyer’s eyes will be unmistakably ‘equitable’, may be, to an English lawyer’s eyes, restitutionary whilst to a lawyer from a civil law system,

a constructive trust, so-called, may well not exist at all but may have a functional equivalent which, in civil law terminology, is not regarded as either equitable or restitutionary. 21.3 While this chapter deals separately with restitution and equity, it should be remembered, as was observed in Chapter 14 above, that questions of characterisation for private international law purposes do not (and should not) necessarily track the same contours of subject division as exist for municipal or domestic law purposes. Thus, as shall be seen, just because a particular remedy may be, to an Australian lawyer’s eyes, equitable or restitutionary, private international law may characterise it as a matter of contract or tort or as having to do with the affairs of a company, and thus identify, through choice-of-law rules, the applicable governing law as, respectively, the proper law of the contract, the law of the place of the wrong or the law of the place of the particular company’s incorporation. 21.4 In Europe, and therefore the United Kingdom, choice-of-law rules for both restitutionary and equitable claims and obligations are now governed (and subsumed) by EC Regulation 864/2007 on the law applicable to non-contractual obligations.11 Accordingly, to the extent that the common law choice-of-law rules in both these areas are relatively underdeveloped, their articulation and development in the future will lie with and in the common law courts of the Commonwealth other than those of the United Kingdom.

Restitution 21.5 One of the key challenges in identifying a choice-of-law rule for restitution is that the contours of that ‘subject’ are still very much a matter for lively debate. Some commentators contend that the myriad areas touched by this branch of the law may be explained by unifying, overarching principles, whilst others regard the ‘subject’ as a collection of disparate doctrines with no necessary underpinning or unifying meaning.12 Within the first group of scholars, there has been and remains lively debate as to just what the unifying or overriding principle is. This taxonomical debate (which is ongoing) has obvious implications for the articulation of any choice-of-law rule, including whether or not there should be one or more choice-of-law rules for [page 516]

restitution to reflect the wide variety of situations in which what are now recognised as restitutionary claims arise. Whilst expressed as ‘one rule’, the common law choice-of-law rule stated in the 14th edition of Dicey, Morris & Collins13 reflects this latter position.14 It relevantly provided as follows: (i)

The obligation to restore the benefit of an enrichment obtained at another person’s expense is governed by the proper law of the obligation.

(ii) The proper law of the obligation is (semble) determined as follows: (a) if the obligation arises in connection with a contract, its proper law is the law applicable to the contract;15 (b) if it arises in connection with a transaction concerning any movable (land), its proper law is the law of the country where the immovable is situated (lex situs);16 (c) if it arises in any other circumstances, its proper law is the law of the country where the enrichment occurs.17 21.6 In Barros Mattos Junior v Macdaniels,18 a comprehensive review of English decisions which had applied or referred to the Dicey rule was undertaken.19 Many of the cases involved international fraud and attempts to recoup misappropriated funds or assets.20 In El Ajou v Dollar Land Holdings plc,21 Millett J (as he then was) referred [page 517] to the Dicey rule in concluding that a ‘knowing receipt’ claim was the counterpart in equity of the common law action for money had and received, and that both could be classified as receipt-based restitutionary claims with the law governing such claims being the law of the country where the defendant received the money. The rule has been applied in Hong Kong in First Laser Ltd v Fujian Enterprise (Holdings) Co Ltd22 and in Falcon Private Bank v Barry Bernard Charter Ltd23 where it was held that a liability to make restitution for unjust enrichment under Swiss law (the law indicated by the Hong Kong choice-of-law rule) could be effectuated by the imposition of a constructive trust remedy over a party that had received proceeds of the unjust enrichment in Hong Kong. The court24 endorsed the observation of Dicey that ‘an English court may hold [a party] liable as a constructive trustee when giving remedial effect to the substantive right arising under the lex causae’. In First Laser,25 Lord Collins,

sitting as a member of the Hong Kong Court of Final Appeal, made it plain that a forum court could hold a defendant liable as a constructive trustee when giving remedial effect to the substantive right arising under lex causae even though the lex causae may not recognise or know the concept of constructive trusteeship. 21.7 The ‘rule’ as stated in Dicey, Morris & Collins cannot be regarded as settled or immutable, and indeed Briggs, one of the specialist editors of the work, has called the very need for it into question, arguing provocatively that a choice-of-law rule for restitution is, in point of fact, unnecessary and that not every category in the common law canon needs or requires its own choice-oflaw rule.26 Briggs’ broad argument is as follows: … the private international law of moveable property and of contracts and wrongs is perfectly well equipped to explain which is the right question to ask and the right law to apply to answer it … claims demanding property, such as credit in bank accounts, shares, other money, will be governed by the law applicable to the material dealing with and transfers of that kind of property. When the claimant seeks an order against the possessor of a thing that he hand it over, or against the debtor that he pay the credit over, the choice-of-law rule will be that which governs dealings with the thing in question, a situs- or contract-oriented rule, as the property may be … where a claim is advanced which alleges that there is liability for blameworthy acts or omissions to act, this will be governed by the proper law of the contract or analogous prior relationship if there was one, or by the law of the place of the alleged wrong if there was not.27

21.8 There has been very little judicial consideration of a choice-of-law rule for restitution or unjust enrichment in Australia. In Sweedman v Transport Accident Commission,28 however, whilst not referring to the ‘rule’ in Dicey, Morris & Collins in terms, a majority of the High Court characterised a statutory right of the commission to be indemnified by a tortfeaser following payment of compensation to the injured party as one giving rise to a correlative ‘restitutionary obligation’. The court identified the relevant choice-of-law rule as the law of the state with [page 518] which the obligation of the tortfeaser to indemnify the commission had its closest connection. The contest on the facts of that case was between New South Wales (which was where the transport accident occurred and whose Motor Accidents Act placed restrictions on the pursuit of common law rights and the measure of damages recoverable) and the law of Victoria (where the victim of the accident resided and the state in which proceedings were commenced). The question was determined in favour of Victoria given that the obligation to

indemnify was sourced in a Victorian statute, the moneys recovered would go to augment the fund created under that statute and given that the obligation only arose after the payments required by the Victorian Act had been made out of the fund to Victorian residents. The court did not need to resolve a submission that rather than looking for the law with the ‘closest connection’ to the obligation which, it was contended, may be difficult to predict with certainty, the preferable approach was to identify the law which was the source of the legal compulsion to make the compensation payments. 21.9 The High Court gave no indication in Sweedman that its identification of the law of the state with which the restitutionary obligation was most closely connected was necessarily intended to articulate or identify a choice-of-law rule for restitutionary obligations in general. Given the current High Court’s apparent disdain for that view of the law of restitution which propounds the existence of an overarching theory, it may be doubted that the court was positing a choice-oflaw rule of general application to all obligations which could be properly classified as restitutionary. To the extent that rights to contribution or indemnity are sometimes characterised as restitutionary, the choice-of-law approach is the subject of extensive analysis in Chapter 20 (20.38–20.53).

Equitable obligations 21.10 Briggs has stated that ‘[e]quity has a doctrinal, institutional, importance in domestic law, but it neither has nor needs a choice-of-law rule of its own. It would make no sense and would do no good’.29 This, however, is not the view which has traditionally been taken in Australia where a number of cases are regularly cited in support of the proposition that, notwithstanding the existence of international elements, any equitable claims in respect of which an Australian court has jurisdiction are to be governed by the law of the forum. Conventional objections to any choiceof-law rule identifying the law of the forum as the applicable law include that: it is inherently uncertain in that the governing law will not be known until a forum is chosen and any jurisdictional/stay issues have been resolved; it lends itself to forum shopping; and it may give rise to a liability in circumstances where the impugned conduct would not have given rise to any such (or a lesser form of) liability in the place where the conduct occurred.

[page 519] 21.11 In National Commercial Bank v Wimborne,30 Holland J said: The Equity Court has long taken the view that because it is a court of conscience and acts in personam, it has jurisdiction over persons within and subject to its jurisdiction to require them to act in accordance with the principles of equity administered by the court wherever the subject matter and whether or not it is possible for the court to make orders in rem in the particular matter. In short, if the defendant is here, the equities arising from a transaction to which he is a party are ascertained by New South Wales law and the equitable remedies provided by that law will be applied to him. The Equity Court determines according to its own law whether an equity exists, its nature and the remedy applicable …

The conditioning of this statement of principle on the defendant being ‘here’ is somewhat problematic as an Australian court may only have jurisdiction over a foreign defendant in an ‘extended’ sense under the relevant rules of court where the nexus between the foreign defendant and the cause of action may be quite slight31 and may not be referable to the conduct which is said to be unconscionable or otherwise to have constituted a breach of the relevant equitable obligation. Moreover, as noted above, any choice-of-law rule resulting in the application of the law of the forum is apt to lend itself to forum shopping which, with regard to suits commenced in Australia, will not be tempered by a doctrine of forum non conveniens designed to relocate litigation into the ‘natural forum’; namely, the forum with the closest and most real connection with the dispute.32 21.12 In United States Surgical Corporation v Hospital Products International Pty Ltd,33 McLelland J considered the issue as to whether or not he should apply New South Wales law (as the law of the forum) to a fiduciary relationship arising out of a distributorship contract governed by the law of New York or Connecticut. It was unnecessary for him to reach a conclusion because the same result would have followed whichever course he adopted. A similar view was taken in the New South Wales Court of Appeal.34 In Attorney-General for the United Kingdom v Heinemann Publishers Australia Pty Ltd,35 Kirby P (as he then was) tentatively accepted the observations of Holland J in Wimborne as the generally applicable principle36 whilst McHugh JA, though accepting that what Holland J had said represented ‘the generally accepted view’, observed that it was not universally correct or applicable,37 pointing [page 520]

out that express trusts represented an established exception to this principle. It is arguably implicit in the High Court’s decision38 in that case to refuse to give effect to the Official Secrets Act 1911 (United Kingdom) that the court considered that the action for breach of confidence was not governed (or not wholly governed) by the law of the forum. The High Court’s decision was relied upon in Innovia Films Ltd v Frito-Lay North America Inc39 as authority for the proposition that the choice-of-law rule for a claim for breach of confidence should be that law that is most closely associated within the defendant’s obligation to the plaintiff and ‘the rights associated with its breach’. The court rejected an alternative characterisation of the breach of confidence claim as one for unjust enrichment with the governing law to be supplied by the place of enrichment.40 In Augustus v Permanent Trustee Co (Canberra) Co Ltd,41 the High Court held that the governing law of an express trust of personalty was to be ascertained in the same way as the proper law of a contract;42 namely, the settlor may select a governing law just as parties to a contract may, but where the settler makes no such choice then the governing law will be that with which the trust has its closest and most real connection. More recently, in Whung v Whung, O’Reilly J ventured the opinion that questions involving resulting trusts would appear to be governed by the law of the place in which their subject matter, if land, is situated.43 21.13 Another exception to the approach enunciated by Holland J in Wimborne is supplied by the decision in Placer v Dyno,44 where Hunter J applied the proper law of an insurance contract in answer to a non-contractual claim for equitable contribution made by one insurer against the other, in circumstances where both policies were governed by (different) foreign laws. In that case, the law of the forum included s 45 of the Insurance Contracts Act 1984 (Cth). Hunter J expressed ‘some difficulty’ in applying the law of the forum ‘in the circumstances of this case where the effect of Niugini Insurance’s submission would be to avoid cl 7.5 as a clause struck down by the provisions of s 45 of the Insurance Contracts Act 1984 (Cth)’, the difficulty being ‘the striking down of a clause in a Norwegian contract of insurance, which would be enforceable under Norwegian law, in a claim for contribution by an insurer under a contract of insurance of which the proper law is that of Papua New Guinea’. 21.14 In Paramasivam v Flynn,45 the Full Court of the Federal Court had to determine whether or not an alleged breach of fiduciary duty was governed by the law of New South Wales, the Australian Capital Territory or Fiji. Unlike United States Surgical Corporation v Hospital Products International Pty Ltd,46 the alleged fiduciary relationship did not arise out of a pre-existing contractual

relationship or in a contractual context. The Full Court of the Federal Court observed that: [page 521] Particular considerations may arise where the source of a fiduciary relationship is a contract the governing law of which is not that of the forum. It may be that in such a case principles, such as those for which Augustus is authority, will apply. Similarly, particular considerations may arise where what is in question is the duty owed to a foreign corporation by its directors or officers. But such matters do not arise here and it is unnecessary for us to form any view about them. In other cases of fiduciary relationship, both principle and the balance of Anglo-Australian authority favour, in our view, the general application of the lex fori, subject, perhaps, to this: that where the circumstances giving rise to the asserted duty or the impugned conduct (or some of it) occurred outside the jurisdiction, the attitude of the law of the place where the circumstances arose or the conduct was undertaken is likely to be an important aspect of the factual circumstances in which the Court determines whether a fiduciary relationship existed and, if so, the scope and content of the duties to which it gave rise … Such an approach is not, in our view, likely to be productive of unjust or inconvenient results and is, so far as it extends, likely to deal satisfactorily with problems which necessarily arise where the forum is asked to apply its own rules to conduct undertaken in a jurisdiction where the law takes a view of it which differs from that of the lex fori. Particularly in a case such as the present, where it is by no means clear in what jurisdiction the relationship first arose and where the relationship is said to have subsisted while the parties were (at various times) in three separate jurisdictions, in each of which breaches of duties arising from the relationship are said to have been committed, the approach which we favour has considerable advantages, both of convenience and of certainty, over one which would seek the place where the relationship was ‘centred’ or with which it had its closest or most real connection.

This passage was the subject of important consideration by Spigelman CJ in Murakami v Wiryadi47 who noted that Paramasivam has been criticised by a number of academic authors, including the Singaporean scholar Professor T M Yeo.48 Notwithstanding Spigelman CJ’s observation that the position with respect to fiduciary claims is as stated in Paramasivam,49 the Chief Justice went on to observe that: Notwithstanding the statement in Paramasivam … that the lex fori applies ‘in other cases of fiduciary relationship’, I do not understand their Honours to suggest that the categories of exceptions are closed. The principles underlying the identified exceptions could be applied in other specific contexts. There are a number of categories to which lex fori is not applied, notwithstanding the fact that equitable relief is claimed. The right to trace moneys paid under a mistake of fact has been held to be governed by the law of the place of payment, rather than the lex fori: Chase Manhattan Bank NA v Israel-British Bank (London) Ltd [1981] 1 Ch 105. (This was also an element emphasised in Trustor AB v Smallbone [2000] EWCA Civ 150 at [61]–[62] to identify‘the proper law of the constructive trust’). In Paramasivam, the court referred to Augustus v Permanent Trustee Co (Canberra) Ltd (1971) 124 CLR 245 for the proposition that the governing law of an express trust of moveables is to be determined in the same way as the proper law of a contract. I can see no reason

why a claim for a constructive trust arising from a contractual relationship should not be determined by the proper law applicable to that relationship. (Compare R W White,

[page 522] “Equitable Obligations in Private International Law: The Choice of Law”, (1986) 11 (1) Sydney Law Review 92, p 111.) Significantly for present purposes, the joint judgment in Paramasivam further noted that analogous principles may apply where the source of a fiduciary relationship is a contract governed by foreign law. A similar approach is suggested by the learned authors of Jacobs’ Law of Trusts in Australia, 7th ed, LexisNexis Butterworths, New South Wales, 2006, at [2822], who say, albeit confining these observations to movables: … where the issue arises from contractual relations between the parties … the existence of a constructive trust of movables should be determined … by the proper law of contract. Courts of equity have applied English law to a contract relating to foreign property, including immovables, not because it is the lex fori; but because it is the proper law of the contract: see, for example, British South Africa; see also Deschamps v Miller [1908] 1 Ch 856 at 863–4; White, 1986, pp 107–9. I can see no reason why the obverse should not apply, subject of course to any local mandatory rule, specifically a rule relating to title to real estate. This is what the Court of Appeal of Singapore did in Rickshaw Investments Ltd v Nicolai Baron von Uexkull [2007] 3 LRC 223; [2006] SGCA 39.

21.15 In relation to the passage in Paramasivam cited above regarding the duty owed to a foreign corporation by its directors, reference may be had to the decision of Pennycuick J in Pergamon Press Ltd v Maxwell,50 cited with approval by Lawrence Collins J (as he then was) in Konamaneni v Rolls Royce Industrial Power (India) Ltd51 as authority for the proposition described as ‘unexceptional and indeed obvious’; namely, that ‘the extent of the duties of the director of a foreign company is governed by the law of that company, the place of incorporation’. A similar approach was subsequently followed by the English Court of Appeal in Base Metal Trading Ltd v Shamurin52 in which the relevant duty alleged to have been breached was a director’s equitable duty to exercise reasonable skill and care in the discharge of their duties. Tuckey LJ stated that: The equitable duty arises from and only from the director’s relationship with the company. If it does not relate to the constitution of the company, it must I think relate to its internal management. A director’s duties to his company are inextricably bound up with these matters and must therefore be governed by the place of the company’s incorporation. Any other result would create huge uncertainty and hamper the requirement for good corporate governance and proper regulatory control.53

In the same case, Arden LJ observed that: Companies are increasingly trading across national borders and moving their trading operations

from country to country. They must not by so doing escape proper regulation or otherwise creditors and shareholders will suffer. The only system of law

[page 523] that can consistently and effectively regulate such multinational companies is the law of the place of incorporation.54

21.16 In OJSC Oil Company Yugraneft v Abramovich,55 Christopher Clarke J rejected a submission that the law of the forum would apply to govern a claim for liability for knowing assistance in a breach of trust or fiduciary duty. His Honour reviewed various English authorities, inclining to the view that, notwithstanding for domestic purposes, a claim for knowing assistance was not a tort, that may be its proper characterisation for private international law purposes in which case the court would have to apply only the law of the country in which the events constituting the dishonest assistance occurred or ‘if they occurred in more than one [country], the law of the country in which the most significant element or elements of those events occurred’.56 A similar approach was followed in Fiona Trust & Holding Corporation v Privalov.57 21.17 The decision of the Singapore Court of Appeal in Rickshaw Investments Ltd v Nicolai Baron von Uexkull58 contains perhaps the fullest theoretical consideration of the question of choice of law in respect of equitable obligations, drawing heavily on the work of Professor Yeo noted at 21.2 above. In that case, the relevant claims concerned alleged breaches of fiduciary duty as well as breach of confidence arising from and in the context of the relationship established by an employment agreement. The court, whilst declining to endorse the proposition that ‘equitable concepts and doctrines are always dependent on other established categories’, did, however, accept ‘the more limited proposition to the effect that where equitable duties (here, in relation to both breach of fiduciary duty and breach of confidence) arise from a factual matrix where the legal foundation is premised on an independent established category such as contract or tort, the appropriate principle in so far as the choice of law is concerned ought to be centred on the established category concerned’.59 Thus, the court held that these claims for breach of fiduciary duty and breach of confidence should be governed by German law as the proper law of the employment contract.60 There is much to be said for this analysis and approach, which is similar to that contended for by Briggs in relation to restitutionary claims (see 21.7 above). The somewhat dogmatic view to the contrary61 fails to

analyse the matter through the internationalist lens required by private international law and is premised on a thoroughly domestic or municipal view of the world. ____________________ 1.

See, for example, David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353.

2.

See, for example, Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 298 CLR 516; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Lumbers v Cook (2008) 232 CLR 635; Bofinger v Kingsway (2009) 239 CLR 269 at [85]–[98].

3.

See, for example, Edelman and Bant,Unjust Enrichment in Australia, Oxford University Press, Melbourne, 2006; K Mason, Mason and Carter’s Restitution Law in Australia, 2nd ed, LexisNexis Butterworths, 2008; J Edelman and S Degeling, Unjust Enrichment in Commercial Law, LawBook Co, Sydney, 2008.

4.

Goff and Jones, The Law of Restitution, 7th ed, Sweet & Maxwell, London, 2007; P Birks, An Introduction to the Law of Restitution, Oxford University Press, Oxford, 1985; and A Burrows, The Law of Restitution, 2nd rev’d ed, Oxford University Press, Oxford, 2002.

5.

See, for example, F Rose (ed), Restitution and the Conflict of Laws, Mansfield Press, Oxford, 1995; J Bird, ‘Conflict of Laws’ in S Hedley and M Halliwell (eds), The Law of Restitution, Butterworths, London, 2002; G Panagopoulos, Restitution in Private International Law, Hart Publishing, Oxford, 2000; A Briggs, ‘Misappropriated and Misapplied Assets and the Conflict of Laws’ in Edelman and Degeling, 2008.

6.

T M Yeo, Choice of Law for Equitable Doctrines, Oxford University Press, Oxford, 2004.

7.

[2006] SGCA 39; [2007] 1 SLR 377.

8.

See the Australian cases reviewed in 21.11ff below.

9.

Young, Croft and Smith, On Equity, LawBook Co, Sydney, 2009, at [2.390]–[2.470].

10. The statement in Young, Croft and Smith at [2.390] that Professor Yeo’s views have not found support outside England and New Zealand overlooks the decision of the Singapore Court of Appeal in Rickshaw Investments Ltd v Nicolai Baron von Uexkull [2007] 1 SLR 377 and must now be further qualified by the decision of the New South Wales Court of Appeal in Murakami v Wiryadi (2010) 268 ALR 377. 11. See Cheshire, North and Fawcett, Private International Law, 14th ed, Oxford University Press, Oxford, 2008, Ch 19; A Dickinson, The Rome II Regulation: A Commentary, Oxford University Press, Oxford, 2009; Dicey Morris & Collins on the Conflict of Laws, 15th ed, Thomson, Sweet & Maxwell, London, 2012, Ch 36. 12. See, for example, I M Jackman, The Varieties of Restitution, Federation Press, Sydney, 1998. 13. Dicey Morris & Collins on the Conflict of Laws, 14th ed, Thomson, Sweet & Maxwell, London, 2006, p 1863. 14. The choice-of-law rule stated in the 15th edition of Dicey, Morris & Collins on the Conflict of Laws (2012 at p 2289) is dictated by Art 14 of EC Regulation 864/2007 (The Rome II Regulation). 15. Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32; Dimskal Shipping Co SA v International Transport Workers Federation [1992] 2 AC 152; Arab Monetary Fund v Hasim [1993] 1 Lloyd’s Rep. 543, reversed on other grounds, [1996] 1 Lloyd’s Rep 589 (CA); Etler v Kertesz (1960) 26 DLR (2d) 209 (Ont CA); cf. Baring Bros & Co Ltd v Cunninghame DC [1997] CLC 108 (Ct of Sess).

Batthyany v Walford (1887) 36 Ch D 269 (CA); Pettkus v Becker (1980) 117 DLR (3d) 257 (Sup Ct 16. Can). 17. Chase Manhattan Bank NA v Israel-British Bank (London) Ltd [1981] Ch 105; Re Jogia (A Bankrupt) [1988] 1 WLR 484, 495–6; Arab Monetary Fund v Hasim, above; El Ajou v Dollar Land Holdings Plc [1993] 3 All ER 717, reversed on other grounds, [1994] 2 All ER 685 (CA); Kuwait Oil Tanker SAK v Al Bader [2000] 2 All ER (Comm) 271 (CA); Grupo Torras SA v Al Sabah [2001] CLC 221 (CA). The rule was not, however, to be applied inflexibly but provided guidance as to the proper law: see Barros Mattos Jnr v Macdaniels Ltd [2005] EWHC 1323 (Ch), [2005] ILPr 630; OJSC Oil Co Yugraneft v Abramovich [2008] EWHC 2613 (Comm); Fiona Trust & Holding Corp v Privalov [2010] EWHC 3199 (Comm). 18. [2005] ILPr 630 at [87]–[105]; EWHC 1323. 19. At [85], Lawrence Collins J (as he then was) noted that ‘the Rule derives from formulations in the sixth and succeeding editions (in chapters on quasi-contract, and later, restitution for which Professor Kurt Lipstein, and later Professor Sir Otto Kahn-Freund had responsibility), and owes much to the American Law Institute, Restatement (First), Conflict of Laws, 1934, ss 452 and 453. The formulation of the Rule has been the same since the eighth edition in 1967. In the sixth and seventh editions, the Rule concerned the law applicable to the rights and obligations of the parties to a quasi-contractual relationship, but was otherwise substantially the same’. 20. The cases included Chase Manhattan Bank NA v Israel-British Bank (London) Ltd [1981] Ch 105; Re Jogia (A Bankrupt) [1988] 1 WLR 484, 495–6; El Ajou v Dollar Land Holdings plc [1993] 3 All ER 717 (rev’d on other grounds: [1994] 2 All ER 685); Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [1995] 1 WLR 975, affd [1998] 1 WLR 387; Arab Monetary Fund v Hashim [1993] 1 Lloyd’s Rep 543, affd [1996] 1 Lloyd’s Rep 589; Kuwait Oil Tanker Co SAK v Al Bader (Moore-Bick J, 16 November 1998, unreported), affd [2000] All ER (Comm) 271; Trustor AB v Smallbone (Sir Richard Scott V-C, 9 May 2000, unreported). See also Fiona Trust & Holding Corporation v Skarga [2013] EWCA Civ 275. 21. [1993] 3 All ER 717 at 736. 22. [2012] HKCFA 52 at [66]. 23. [2012] HKFCI 1039. 24. See note 22 at [144]. 25. [2012] HKCFA 52 at [66]. 26. See Briggs, ‘Misappropriated and Misapplied Assets and the Conflict of Laws’ in Edelman and Degeling, 2008. 27. See note 26 above at p 77. 28. (2006) 226 CLR 362. 29. Briggs, ‘Misappropriated and Misapplied Assets and the Conflict of Laws’ in Edelman and Degeling, 2008, p 59. 30. (1978) 5 BPR [97423] at 11, 982. 31. See generally Chapter 3 above. 32. In Australia, proceedings will only be stayed, absent an exclusive jurisdiction clause or arbitration agreement, in circumstances where the Australian forum is clearly inappropriate or vexatious and oppressive in the sense in which those concepts were described in Voth v Manildra Flour Mills Pty Ltd (1991) 171 CLR 538; and cf. Spiliada Maritime Corporation v Cansulex Ltd [1986] AC 460. See generally Ch 8 above. 33. [1982] 2 NSWLR 766 at 796–9.

34. [1983] 2 NSWLR 159 at 192. 35. (1987) 10 NSWLR 86 at 151. 36. See also OZ-US Film Production Pty Ltd (in liq) v Heath [2000] NSWSC 967; and Virgtel Limited v Zabusky [2006] QSC 66. In the former case, Young J appeared to suggest, albeit obiter, that the law of the forum would govern a claim for breach of fiduciary duty and an account of profits even where the relevant conduct occurred outside of New South Wales, and that because contractual and fiduciary obligations have different origins, the proper law of any applicable contract was irrelevant. 37. (1987) 10 NSWLR 86 at 192. 38. Attorney General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30. 39. [2012] EWHC 790 at [108]. 40. cf Douglas v Hello! Ltd (No 6) [2006] QB 125 at [97]. 41. (1971) 124 CLR 245. 42. See Chapter 19 above. 43. [2011] FAMCA 137 at [198]. 44. [1999] NSWSC 1292 at [487]. 45. (1998) 90 FCR 489. 46. [1982] 2 NSWLR 766. 47. (2010) 268 ALR 377 at [131]ff. 48. See 21.2 above. 49. See also Nicholls v Michael Wilson & Partners Ltd (2010) 243 FCR 177 at [342] (reversed on other grounds); Alstom Ltd v Sirakis (No 2) [2012] NSWSC 64 at [41]. 50. [1970] 1 WLR 1167 at 1172. 51. [2002] 1 WLR 1269 at [52]–[55]. 52. [2005] 1 WLR 1157. See also Shaker v Al-Bedrawi [2003] 2 WLR 922; 1 BCLC 157; (2003) BCC 465 (Peter Gibson and Arden LJJ and Bodey J), pet. dismissed: [2004] 1 WLR 232. The approach in these cases may be contrasted with that in favour of the proper law of the obligation, supported by Tomlinson J at first instance in Base Metal and by the New Zealand Court of Appeal in Attorney-General of England and Wales v R [2002] NZLR 91. Significantly the choice-of-law issue was not one in which the law of the forum was seen as a candidate. 53. At [56]. 54. At [75]. 55. [2008] EWHC 2613 (Comm). 56. At [221]. 57. [2010] EWHC 3199 (Comm) at [142]–[181]. 58. [2007] 1 SLR 377. 59. At [81]. 60. The court noted (at [83]) that Professor Yeo’s view (at [8.77]) was that,‘[o]utside the relationship context, breach of confidence should be characterized as a tort for choice of law purposes’, based on the notion that such a breach is closely analogous to a civil wrong. 61. See note 9 above.

[page 524]

Chapter 22

Negotiable Instruments Introduction 22.1 The law relating to negotiable instruments was originally codified in Australia by the Bills of Exchange Act 1909 (Cth), which was an adaptation of the Bills of Exchange Act 1882 (United Kingdom). The legislation contains its own conflict-of-laws provisions, which appear as ss 77 and 77A in the Australian statute.1 The provisions of s 77 are based on the research and draftsmanship of Sir Mackenzie Chalmers around 1880 and they reflect the development of conflictual rules as they were understood in the nineteenth century. Moreover, Chalmers was considerably influenced by the writings of Story,2 and he applied the rule locus regit actum (the place governs the act) as the guiding principle in the drafting of the statute. 22.2 From 1909 until 1 July 1987 the Bills of Exchange Act 1909 (Cth) covered all negotiable instruments such as bills of exchange, promissory notes and cheques. However, cheques are now separately regulated in the Cheques Act 1986 (Cth), which makes provision as regards conflict of laws in s 117. The Bills of Exchange Act 1909 (Cth) does not apply to instruments to which the Cheques Act 1986 (Cth) applies,3 but it does continue to apply to promissory notes.4 Conflict-of-laws issues in relation to negotiable and financial instruments other than bills of exchange, promissory notes and cheques are governed by the common law, and are considered separately below, at 22.37ff. 22.3 In 2003, a Working Group of Officials appointed by the Commonwealth Treasury completed the National Competition Policy Review of the Bills of Exchange Act 1909.5 One of the options recommended by the Working Group was that the Act be amended to make statutory provision for negotiable instruments in electronic form with equivalent functionality to bills of exchange and promissory

[page 525] notes in paper form.6 Some minor amendments to the Act were made in 2008,7 but the substantial changes required to make the Act medium-neutral have not been made. Electronic bills of exchange and promissory notes are issued and traded through Austraclear, which is owned and operated by the Australian Stock Exchange. Trading in electronic securities through Austraclear is done under the Austraclear Regulations, which take effect as a multilateral contract binding all participants and governed by New South Wales law.8 In relation to what Austraclear calls ‘Dematerialised Securities’, which include electronic bills of exchange and promissory notes, the Austraclear Regulations provide that the rights of all parties are equivalent to those that would arise under what the Regulations call an ‘Equivalent Paper Security’.9 The apparent effect is to make the Bills of Exchange Act 1909 (Cth) apply to electronic bills of exchange and promissory notes by agreement of the participants in the Austraclear system, rather than by operation of law.

One law or several? 22.4 Several persons may incur separate liabilities on a single bill of exchange or cheque by reason of becoming acceptors or endorsers thereon. Should all of these liabilities be governed by the one law, preferably the law governing the liability of the acceptor or bank, or is each contract on the bill or cheque to be considered separately with its own applicable law? There are certain early decisions where it was assumed that the obligations of the drawer and endorsers were all governed by the law of the place where the acceptor was obliged to pay.10 However, even before the Bills of Exchange Act 1882 (United Kingdom) was passed, the ‘single law’ doctrine had been decisively rejected in favour of the ‘several laws’ or ‘independence’ view, by the Court of Appeal in Horne v Rouquette.11 As Brett LJ said in that case of the several contracts on a bill of exchange:12 … the primary contract as a bill is that between the drawer and acceptor if the drawee accept; the secondary contracts are those between the drawer and his endorsee and between the different endorsers and their endorsees. Each of them is a different contract between the parties …

It is clear that the Bills of Exchange Act 1909 (Cth), with the possible exception of s 77(c), had the ‘several laws’ theory as its basis. The same applies to the

Cheques Act 1986 (Cth). This means that under both Acts the liabilities of the drawer, the acceptor or banker, and the various endorsers can be governed by different laws. [page 526]

Negotiability in Australia 22.5 It is established that Australian law determines whether an instrument can be negotiated in Australia.13 A foreign instrument will be considered negotiable in Australia if it is negotiable under the provisions of the Bills of Exchange Act 1909 (Cth),14 or by the custom of merchants in Australia.15 All cheques are negotiable in Australia.16 In addition it would seem that an instrument covered by the Bills of Exchange Act 1909 (Cth) must be negotiable according to the law of the place of issue. It certainly would be iniquitous if the drawer, acceptor or issuer were fixed with a greater liability because of the peculiarity of the law of the place where a particular document is negotiated. Authority on the point is sparse but it supports the view expressed. Thus, in Guaranty Trust Co of New York v Hannay & Co,17 Bailhache J took the view that he had to determine whether the bill there involved was negotiable by the law of the place of issue. The Court of Appeal18 seems to have regarded this as a proper inquiry, though on the view their Lordships took of the matter it was unnecessary to their decision. 22.6 The position under the Cheques Act 1986 (Cth) is equally obscure. However, s 39(1) appears to be quite explicit that every cheque shall be negotiable. It would seem therefore that, provided the instrument is a cheque according to the law of the place of issue,19 a foreign cheque will be negotiable in Australia whatever restriction may exist under the law of the place of issue.

Capacity Under the Bills of Exchange Act 1909 (Cth) 22.7 The only reference in the Act to the question of capacity is in s 27, which simply provides that capacity to incur liability as a party to a bill of exchange is

co-extensive with capacity to contract, provided that a corporation can only make itself liable as drawer, acceptor or indorser if it is competent to do so under the law governing its incorporation. Such authority as exists supports the application of the law of the place of contracting. Thus, in Bondholders Securities Corporation v Manville,20 a married woman, domiciled in Saskatchewan, purchased land in Florida. As part payment she gave the vendor a promissory note issued in Florida [page 527] and payable there. By the law of Florida a married woman lacked capacity to issue a promissory note. The Saskatchewan Court of Appeal held that this incapacity by the lex loci contractus (the law of the place of contracting) was a bar to the action because ‘at least in the case of mercantile contracts not prohibited by the lex fori the weight of authority is to the effect that the capacity or incapacity of a person to contract must be determined by the law of the country where the contract arises’.21 Unfortunately as a general proposition on the capacity to enter into commercial contracts this statement is wrong: more recent authority favours the proper law of the contract.22 Nevertheless, it is submitted that it would be in accordance with the general emphasis of the Act to apply the law of the place where the contract was made.

Under the Cheques Act 1986 (Cth) 22.8 The Cheques Act 1986 (Cth) s 117(9) provides that the capacity of a person to incur liability on a contract under a cheque shall be determined in accordance with the law of the place where the contract is made.

Law of the place where the contract is made 22.9 It is clear that the place of contracting must be determined according to Australian law as the lex fori (law of the forum).23 Under our law the place of contracting is the place where the last act necessary to render the particular party liable on the bill or cheque took place. Under s 26(1) of the Bills of Exchange Act 1909 (Cth) a contract on a bill is incomplete until delivery of the bill or note,

or (as stated in the proviso to s 26(1)) until acceptance is notified to the drawer. ‘Delivery’ is defined in s 4 of that Act as ‘the transfer of possession, actual or constructive, from one person to another’. Similar provision is made in relation to cheques in ss 25 and 3(1) respectively of the Cheques Act 1986 (Cth). For practical purposes, however, the place of contracting is often the place where the obligation on the bill or cheque came into being on the affixing of the signature of the party against whom the obligation is sought to be enforced, as that is where acceptance takes place and notification of acceptance is given by the drawee.24 In the absence of evidence to the contrary, delivery will be presumed to have taken place there.25 22.10 Many paper bills of exchange are lodged for safe keeping with Austraclear, which records lodgment of the document (known under the Austraclear Regulations as a ‘Paper Security’) in the lodging participant’s Security Record.26 Austraclear then holds the document as bailee for the lodging participant.27 If the original lodging [page 528] participant transfers title to the bill of exchange to another Austraclear participant, delivery occurs constructively by a change in the terms of Austraclear’s bailment and the corresponding Security Records.28 Delivery thus takes place at Austraclear, in Sydney. 22.11 Electronic bills of exchange and promissory notes come into existence when Austraclear records a Deposited Dematerialised Security in the Security Record of the Austraclear participant who deposited the security.29 That takes place at Austraclear, in Sydney. 22.12 The place of contracting in relation to paper instruments was considered by the English Court of Appeal in G & H Montage GmbH v Irvani.30 In that case a number of bills of exchange were drawn up by a German company naming that company as the drawer and an Iranian company as the drawee. The German company sent the unsigned bills to the Iranian company in Iran, which returned them by post endorsed with its acceptance. If the matter had stopped there, as Purchas LJ indicated,31 the place of contracting would have been Iran where the bills were accepted and entrusted to the mail for delivery. However, upon their arrival in Germany, there was superimposed over the signature of the Iranian

party and with their consent a form of guarantee known to the civil law as aval. Since the German party was seeking to enforce the aval, the contract of aval only came into being when it was written on the document in Germany with the consent of the Iranian party. That contract was made in Germany, although the consent to the endorsement was given in Iran.

Formal Validity Under the Bills of Exchange Act 1909 (Cth) 22.13 This matter is governed by s 77(a) of the Act, which provides: The validity of a bill as regards requisites in form is determined by the law of the place of issue, and the validity as regards requisites in form of the supervening contracts, such as acceptance, or endorsement, or acceptance supra protest, is determined by the law of the place where such contract was made.

As with the place of contracting, the place of issue will normally be the place where the bill is drawn. ‘Issue’ is defined in s 4 of the Act as the first delivery of the bill to a person who takes it as holder. But if the bill is mailed to the holder, the place of issue will be the place where the bill is mailed.32 While in relation to contracts generally, the proper law of the contract can be invoked as an alternative to sustain the formal validity of a contract, the wording of the statute is mandatory. If the endorsement is formally valid by the law of the place [page 529] where the transaction was completed, it will be recognised as effective in Australia, even though the endorsement was not in the form prescribed by the Act.33

Under the Cheques Act 1986 (Cth) 22.14 In relation to cheques, the Cheques Act 1986 (Cth) s 117(2) provides that the validity of a cheque as to form shall be determined in accordance with the place of issue. ‘Issue’ is defined in s 3(1) as the first delivery of the cheque to a

person who takes the cheque as holder. The validity as to form of a supervening contract on a cheque by endorsement or transfer shall be determined in accordance with the law of the place where the contract is made.34 The position is therefore the same as in relation to bills of exchange. To the general principle that locus regit actum (the place governs the act) there are two exceptions: stamp duty, and Australian dealings with foreign bills and cheques.

Stamp duty 22.15 A failure to comply with a requirement that a bill or cheque issued out of Australia be stamped under the law of the place of issue will not render that bill or cheque invalid in Australia.35 Likewise the failure to stamp a bill or cheque issued in Australia but payable outside Australia does not render it invalid.36 An unstamped cheque may be received in evidence if the proper duty and penalty (if any) is paid.37

Australian dealings with foreign bills and cheques 22.16 A bill or cheque issued out of Australia that conforms, as regards form, to the law of Australia is, for the purpose of enforcing payment thereof, valid as between all persons who, in Australia, negotiate, hold or become parties to, or endorsers of, it.38 Although a bill or cheque may be invalid in so far as some parties are concerned, other parties may acquire rights and liabilities under it. It is not essential in the case of bills of exchange that the bill be an inland bill.39 However, it is necessary that the person seeking to enforce the bill or cheque and the person against whom enforcement is sought both become parties to the contract on the instrument in Australia.40 Furthermore, the benefit of the exception only extends for the purpose of enforcing payment. If other relief, such as a declaration that the holder is not liable to repay the amount received by him or her from the acceptor of a bill, is sought it would appear that the provision does not help.41 [page 530]

Interpretation and Effect Under the Bills of Exchange Act 1909 (Cth) 22.17 Section 77(b) of the Bills of Exchange Act 1909 (Cth) provides: Subject to the provisions of this Act, the interpretation of the drawing, endorsement, acceptance or acceptance supra protest of a bill, is determined by the law of the place where such contract was made.

The currently prevailing view is that the term ‘interpretation’ as used in this provision refers not merely to the construction of the document or endorsements thereon, but includes questions as to the legal effect of the obligations thereby created. This was the view of Chalmers42 and it has the support of the majority of judges.43 However, a minority of judges have either given the word ‘interpretation’ its strict and ordinary meaning or left the issue open.44 If the latter view is correct, the Act fails to provide a choice-of-law rule in such matters and reference would have to be made to the common law. The common law position is uncertain but Dixon J stated in Wragge v Sims, Cooper & Co (Aust) Pty Ltd:45 … there is some reason to think that the common law selected the lex loci solutionis as the proper law of the obligations in contracts on a bill of exchange.

That would be the place where payment under the obligation is to be made. In practice the difference between these interpretations may not be as great as might be imagined. One must bear in mind that the obligations of the drawer and any endorsers of a bill are essentially those of sureties, namely, to reimburse the holder (in the case of dishonour or non-acceptance) at the place where they respectively entered into the contract.46 Therefore, the place of performance of the drawer’s or endorser’s obligation is the place where the bill of exchange or the promissory note was delivered by the party whose obligation is in question. That is also the place of contracting. [page 531] In the case of the acceptor of a bill or the maker of a promissory note, the prima facie obligation is once again to pay at the place where the contract was made.47 But that can be displaced by an express obligation to pay elsewhere. In

that case it would become necessary to distinguish between the law of the place of contract and of payment. The principles governing choice of law for negotiable instruments such as bills of exchange or promissory notes do not apply to contracts commercially connected with those commercial instruments but which are not embodied in the negotiable instrument itself, such as the obligations arise under commercial letters of credit or, indeed, the underlying contractual obligation secured by the negotiable instrument.48 22.18 To the general rule laid down in s 77(b) an exception is made by way of proviso: Provided that where an inland bill was endorsed in a foreign country the endorsement shall as regards the payer be interpreted according to the law of Australia.

This exception was undoubtedly drafted to make provision for the rule in Lebel v Tucker.49 In this case it was held that the acceptor of a bill drawn and payable in England was liable, although it had been endorsed to the plaintiff in France by an endorsement in blank, which was valid by English law but invalid by French law. Since the question of the effect of such endorsement would seem to be a question of validity rather than construction, the inclusion of the proviso supports the broader view. If the narrower interpretation were correct, then somewhat ironically, if the same fact situation were to arise today, the statutory exception would not cover it.

Under the Cheques Act 1986 (Cth) 22.19 Although in the main the conflicts rules laid down in the Cheques Act 1986 (Cth) follow the provisions of the Bills of Exchange Act 1909 (Cth), in relation to the issue of interpretation, the later Act departs quite radically from the earlier Act’s model. The Cheques Act 1986 (Cth) s 117(10) provides: Subject to sub-sections (12), (13) and (14), a contract on a cheque shall be interpreted and have effect in accordance with the law of the place where the contract is to be performed.

It may be noted that the subsection speaks of both interpretation and effect, thereby making it clear that the choice of law rule enacted therein applies to construction and validity. However, it refers to the law of the place of performance, that is, the place where the party liable on the cheque is obliged to pay.

Assignment 22.20 The assignment of negotiable instruments constitutes a major exception to the general principle that an assignor cannot convey a better title than the assignor already possesses. In certain circumstances a holder of a negotiable instrument in [page 532] due course can obtain a better title than the assignor, if the assignor assigns ‘without recourse’. Since the definition of ‘holder in due course’ may vary from country to country, particularly in its attitude to forged endorsements, it becomes all the more important to determine the law which governs the title to the instrument.

Under the Bills of Exchange Act 1909 (Cth) 22.21 The authorities on this seemingly pressing problem are not conclusive. One view is that the matter is governed by s 77(b) of the Act, which provides that the ‘interpretation’ of a contract on a bill is determined by the law of the place where the contract is made. This is based on the majority view that ‘interpretation’ goes beyond construction and extends to the determination of the validity and effect not only of the underlying transaction but also of the assignment effected thereby. An opposing view is that, in line with the general principle that the title to tangibles depends on the lex situs (the law of the place), the efficacy of the assignment of rights arising under a bill should be determined by the law of the place where the bill was situated at the time of the relevant transaction. There are three English decisions in which s 72(2) of the English Act (which is the equivalent of s 77(b) of the Australian Act) was considered. 22.22 The first of these was Alcock v Smith,50 where an overdue bill drawn and accepted by an English firm and payable in England had found its way to Norway where it was seized by way of execution and sold by public auction. Under the law of Norway the buyer of the bill at the public auction obtained a good title. Under English law the buyer of an overdue bill only gets such title as the vendor had.

All the judges who heard the case agreed that Norwegian law applied. At first instance Romer J51 based his decision in part on the Bills of Exchange Act 1882 (United Kingdom) s 72(2) by holding that the word ‘interpretation’ meant legal effect. On appeal Lindley LJ appeared to agree. However, in support of their reasoning their Lordships relied upon the case of Cammell v Sewell,52 a case which bears some resemblance on its facts to Alcock v Smith in that it concerned the sale of tangible chattels in Norway by a person other than the owner. But in that case Norwegian law was applied as the lex situs of the goods at the time of sale. In Alcock v Smith only Kay LJ drew that analogy to its proper conclusion. He suggested,53 as an alternative leading to the same result, that the paper embodying the bill could be treated as a tangible chattel situated in Norway and hence subject as such to Norwegian law.54 22.23 In Embiricos v Anglo-Austrian Bank55 a cheque drawn in Romania on an English bank and made payable to the plaintiffs was specially endorsed by the plaintiffs in favour of a London firm. A thief forged the signature of the endorsee [page 533] and the cheque was later presented to a bank in Austria. Under Austrian law, which was the lex loci actus (the law of the place of the action) by reason of the delivery of the cheque there, the bank acting in good faith and without gross negligence obtained a good title to the cheque. Under English law no title can pass by a forged endorsement. Again, all judges who heard the case agreed that Austrian law should prevail. Walton J at first instance referred to s 72(2) of the English Act but did not reach a definite conclusion as to its meaning. He treated the reasoning of Kay LJ in Alcock v Smith as the ratio decidendi of that case and therefore applied Austrian law as the lex situs of the cheque at the time of its negotiation to the bank. On appeal Vaughan Williams LJ agreed with Walton J and expressly rejected a role for s 72(2) beyond construction.56 On the other hand Romer LJ (as he had by then become) restated his view in Alcock v Smith that s 72(2) applied and Stirling LJ added to the confusion by agreeing with each of his brethren.57 22.24 The third case in the series is the decision of the Court of Appeal in Koechlin et Cie v Kestenbaum.58 In that case a bill of exchange drawn in France and delivered for acceptance in England had been returned to France where it was endorsed by the son of the payee in the son’s own name without adding the

words ‘per pro’ to indicate that he was signing it on behalf of the payee. Under English law the endorsement was invalid; under French law it was good as long as the son had actual authority, which was not disputed. The Court of Appeal held that French law applied. Both Bankes and Sargant LLJ treated the issue as primarily one of form, which would be governed by s 77(a) of our Act. However, Bankes LJ expressed the view59 that if it were a question of the validity of the transfer it would on the authority of Embiricos v Anglo-Austrian Bank be governed by the law of the country where the transfer took place.60 Although it is probably too strong to say that the decision is definite authority in favour of the law of the place of acting pursuant to s 77(b),61 it certainly supports that conclusion. There is little doubt that the application of s 77(b) to questions of title would be in accordance with the views of Chalmers. Because he thought that s 77(b) would govern the validity of assignments, he drafted a proviso to that clause in order to preserve the effect of the decision in Lebel v Tucker. Consequently, if the view that s 77(b) governs is accepted, a foreign endorsement of an inland bill, which is valid by the law of Australia but invalid by the lex loci actus, will be effective under the proviso to s 77(b) in rendering the payer of the bill liable nonetheless. This might not be a great hardship or injustice. But the converse equally applies. If the foreign endorsement is valid by the law of the place where the bill was delivered, [page 534] but invalid by the law of Australia, the payer will under that proviso not be liable to pay on the bill.62 Such an interpretation would operate harshly against the foreign holder of an Australian inland bill. Contrary to accepted doctrine such holder would have to enquire whether the endorsement effected abroad was valid according to Australian law.63 22.25 Should s 77(b) be given a restricted interpretation, the choice will lie between the lex loci actus as a common law rule or the lex situs of the bill as a tangible item.64 As shown above, in almost all cases this will make no difference to the outcome. It could only be of importance in a case where it was sought to argue that the proviso to s 77(b) applied to validate or invalidate, as the case might be, a foreign endorsement on an inland bill.

Under the Cheques Act 1986 (Cth)

22.26 The Cheques Act 1986 (Cth) s 117(8) provides that, subject to subs (10), the effects of a transfer of a cheque shall be determined in accordance with the law of the place where the cheque is transferred by negotiation. Subsection (10), as we have seen, refers the effect of a contract on a cheque to the law of the place where the contract is to be performed. It would appear from these provisions that a distinction should be drawn between the assignment, which will be governed by subs (8), and the contract arising out of an endorsement which is governed by subs (10). This distinction supports the lex situs view since the place of transfer is the place of delivery of the cheque.65 However, the distinction is of little practical significance since the place of delivery will invariably also be the place where the obligation on the contract arising out of the endorsement is to be performed.

Performance and Discharge Under the Bills of Exchange Act 1909 (Cth) 22.27 On the aspect of performance the statute is clear. Section 77(e) provides: Where a bill is drawn in one country and is payable in another, the due date thereof is determined according to the law of the place where it is payable.

This provision reflects the common law.66 Hence, if the law of the place of payment by a general moratorium postpones the day of payment this must be given effect to [page 535] not only as regards the acceptor’s obligation but also as regards the obligation of the drawer and every subsequent endorser.67 22.28 The Bills of Exchange Act 1909 (Cth) does not deal with choice of law in relation to the measure of damages on breach or when a negotiable instrument or a party to such an instrument has been discharged.68 Consequently reference must be made to common law conflictual principles. The question of the measure of damages for breach of a contractual obligation has always been considered a matter of substantive law and hence governed by

the law governing the defendant’s obligation.69 Consequently, if an action is brought, for example, by the payee against the drawer, the liability of the drawer is determined by the law governing the drawer’s obligation and not that of the acceptor. On the common law principles outlined earlier,70 the liability of an acceptor of a bill or the maker of a note would be governed by the lex loci solutionis (the law of the place of performance),71 and the liability of the drawer or any endorsee would be determined by the law of the place where the bill was issued or negotiated.72 22.29 In relation to discharge, it is important to distinguish between: (a) the discharge of the bill and (b) the discharge of one or more parties to the bill. Whether a bill or note is discharged as a whole should be governed by the law governing the primary obligation of the acceptor of a bill or the maker of a note. This will be the lex loci solutionis. If the bill is effectively discharged by this law the discharge must operate to release all parties to the bill from liability. Where it is claimed that a particular party has been discharged from liability, different considerations would arise. In the first instance the lex loci actus should be applied to determine the validity of the discharge. However, it would be unfair to allow a party discharged from liability under that law to rely on this as a defence against a person who subsequently acquires title to the bill without notice of the discharge. It is submitted that where Australian law governs the liability of the person sued, a defence alleging a personal discharge should be treated in the same fashion as other defences available to prior parties to a bill, and where the holder acquired a valid title to the bill by the lex loci actus prior parties should not be allowed to rely on a defence that they had been previously discharged from liability.73 [page 536]

Under the Cheques Act 1986 (Cth) 22.30 The Cheques Act 1986 (Cth) repeats the provision of s 77(e) of the Bills of Exchange Act 1909 (Cth) in almost identical language in relation to cheques in s 117(14). Unlike the Bills of Exchange Act, however, the Cheques Act makes specific provision in relation to damages in s 117(11) which provides:

… where a cheque is dishonoured, the amount (if any) recoverable as damages in respect of a contract on a cheque shall be determined in accordance with the law of the place where the contract is to be performed.

For reasons explained earlier, this is normally the place where the drawer issued the cheque or the endorser negotiated it by delivery. 22.31 The statute makes no specific provision in relation to the law governing the discharge of an obligation on a cheque. It is submitted that the same principles apply as in relation to bills of exchange. Thus, the discharge of the primary obligation of the drawer is governed by the law of the place of performance of the drawer’s obligation either by reason of common law principles or under s 117(10), both having the same effect. The discharge of the obligations of endorsers would be determined by the law of the place of performance of their obligations subject to the same protection of a holder who acquired a valid title to the cheque under the lex loci actus.

Presentment, Protest and Notice of Dishonour Under the Bills of Exchange Act 1909 (Cth) 22.32 When a bill is dishonoured, whether by non-acceptance or non-payment, a holder acquires rights against the drawer and any endorsers, unless the drawer has endorsed the bill ‘without recourse’. The extent of those rights has already been discussed. Most countries have rules governing the necessity to make presentment, to protest a dishonoured bill and to give notice of dishonour to the drawer and to each endorser. Which law determines the obligations of the holder? Section 77(c) of the Act provides: The duties of the holder with respect to presentment for acceptance or payment and the necessity for or sufficiency of a protest or notice of dishonour, or otherwise, are determined by the law of the place where the act is done or the bill is dishonoured.

It is not easy to interpret this provision. For example, what law determines whether it is necessary to present the bill for acceptance or payment? It seems absurd to have to worry over the possible meanings of ‘the place where the act is done or the bill dishonoured’ if the act of presentment was never done and the issue is whether consequently the bill is dishonoured. One possible solution would be to hold that the section relates only to the formalities of presentment, protest and notice of dishonour. This view found favour with Stable J in Cornelius v Banque Franco-Serbe.74 However, this interpretation ignores the

words ‘the duties of the [page 537] holder’ and ‘the necessity for’. In G & H Montage GmbH v Irvani,75 the Court of Appeal rightly took the view that the English equivalent in s 72(3) of the Bills of Exchange Act 1882 (United Kingdom) applied to the question whether notice of dishonour is required. 22.33 Section 77(c) is incapable of sensible construction except by surgery. This would involve separating the reference to the duty to present for acceptance and payment from the reference to the necessity for a protest or notice of dishonour subjecting the former to the law of the place where the act is done, reading the word ‘done’ as meaning ‘to be done’ as suggested by the learned editors of Dicey, Morris & Collins on the Conflict of Laws.76 This would refer the question of the need to present the bill to the law of the place where the bill is to be presented for payment. The question of the need for a protest or notice of dishonour would be governed by the law of the place where the bill is dishonoured. In practice this would mean in both cases the law of the place of performance; that is, where the acceptor of a bill or the maker of a note is obliged to pay. 22.34 The authorities, such as they are, tend to support this conclusion. As regards the duty to present, the matter was considered in two wartime cases, both concerned with bills payable in Amsterdam, which was then under Nazi occupation. In Banku Polskiego v KJ Mulder,77 the defendants had in London accepted generally a bill of exchange payable in Amsterdam. The bill was not presented for payment there but after maturity payment was demanded in London. Under English law presentment was not necessary in respect of a bill accepted generally. Under Dutch law it was. Tucker J held that under English law, which governed the obligations of the acceptor under s 72(2) of the Bills of Exchange Act 1882 (United Kingdom), there was no obligation to pay exclusively in Amsterdam and hence Dutch law did not apply. The case supports the above contention, provided one makes the assumption that in the absence of an exclusive obligation to pay elsewhere, the obligation to perform the obligation is in the place where the contract was made.78 In Cornelius v Banque Franco-Serbe,79 Stable J was concerned with a cheque payable in Amsterdam. He took the view that s 72(3) of the English Act related

to formalities only. In so far as the obligation to present was concerned, he was inclined to accept the untenable position that this was governed by English law as the lex fori. However, nothing turned on this decision, as he accepted evidence that under Dutch as well as English law the German occupation relieved the holder of any duty to present the cheque for payment.80 On the latter basis, the decision can be seen as at least not inconsistent with the proposition above. [page 538] 22.35 As regards the duty to give notice of dishonour and the sufficiency thereof, most authorities predate the Bills of Exchange Act 1882 (United Kingdom). While the reasoning in some of these cases presents difficulties, the outcome in each of them supports the proposition that, even as between parties whose contract on a bill is governed by a different law, the question of the obligation to give notice of dishonour and the sufficiency, including the timing, thereof is governed by the law of the place where the bill is dishonoured.81 It may be assumed that Chalmers sought to express, however ineptly, the result actually achieved in these cases. That conclusion is supported by the decision in G & H Montage GmbH v Irvani,82 where the Court of Appeal applied English law to determine the need for notice of dishonour in respect of bills drawn in Germany on an Iranian acceptor and payable in London.

Under the Cheques Act 1986 (Cth) 22.36 The drafters of the Cheques Act 1986 (Cth) wisely avoided the pitfalls of the Bills of Exchange Act 1909 (Cth) s 77(c), achieving the same result as the one contended for above. The question of the need for presentment for payment is dealt with in s 117(12) which provides: The necessity for presentment for payment, and the sufficiency of a presentment for payment, in relation to a cheque shall be determined in accordance with the law of the place where the cheque is payable.

The question of the need for a notice of dishonour and other issues related therewith, such as the form of the notice and the period within which notice shall be given, is regulated in subs (13) which provides: Where a cheque is dishonoured, the necessity for, and the sufficiency of, a notice of dishonour, and any other act, in relation to the dishonour, shall be determined in accordance with the law of the

place where the cheque is payable.

Other Negotiable Instruments 22.37 Dicey, Morris and Collins state a rule to the effect that the rights of holders of negotiable and financial instruments other than bills of exchange, cheques and promissory notes should be governed by the law governing the instrument and by the place where the instrument was situated when it was delivered to the holder,83 a rule similar to that stated at 22.5 in relation to bills of exchange. Instruments of this kind could include bearer bonds, debentures, guarantees, letters of indemnity, certificates of deposit, warehouse receipts and warrants. The proposed rule applies only to questions of transfer of the rights of the original holder to another holder in due course; the contract for the sale or purchase of negotiable or financial instruments is governed by its own governing law.84 Whether an instrument is negotiable, and the consequences of that negotiability, must be determined by the [page 539] lex fori (law of the forum).85 Thus, no instrument could be transferred in Australia as a negotiable instrument unless it had been made so by Australian law. Dicey, Morris & Collins say that the rule should extend to all legal instruments title to which can be passed by physical delivery of the instrument to another. Negotiable instruments of this kind are therefore treated as chattels, ie, as tangible movables.86 However, the idea that such instruments as bearer shares should treated in the same way as true negotiable instruments has been criticised on the basis that negotiable instruments are concerned with debt, whereas shares are concerned with equity.87 ____________________ 1.

Cf s 72 of the Bills of Exchange Act 1882 (United Kingdom).

2.

Story, Commentaries on the Law of Bills of Exchange, 3rd ed, Little Brown, Boston, 1853; Story, Commentaries on the Conflict of Laws, 8th ed, Little Brown, Boston, 1883.

3.

Bills of Exchange Act 1909 (Cth) s 6(2). The Cheques Act 1986 (Cth) applies to cheques drawn on or after 1 July 1987: see Cheques Act 1986 (Cth) s 7(1).

4.

Bills of Exchange Act 1909 (Cth) s 95(1).

5.

Commonwealth of Australia, July 2003.

6.

See note 5 above, pp 79–83, Option 1.

7.

Statute Law Revision Act 2008 (Cth).

8.

Austraclear Regulations, regs 23.3, 23.5, available at (last visited 5 March 2013).

9.

Austraclear Regulations, reg 8B.2(c).

10. Rothschild v Currie (1841) 1 QB 43; Moulis v Owen [1907] 1 KB 746. 11. (1878) 3 QBD 514. 12. See note 11 above, at 517. 13. Rosenhain & Co Ltd v Commonwealth Bank (1922) 31 CLR 46; Picker v London and County Banking Co (1887) 18 QBD 515. 14. For example, if it falls under the definition of a bill of exchange in the Bills of Exchange Act 1909 (Cth) s 8, or a promissory note in s 89. 15. Picker v London and County Banking Co (1887) 18 QBD 515 at 518. 16. Cheques Act 1986 (Cth) s 39(1). 17. [1918] 1 KB 43 at 55–62. 18. [1918] 2 KB 623. 19. Cheques Act 1986 (Cth) s 117(3). 20. [1933] 4 DLR 699. 21. See note 20 above, at 705. 22. See 19.50–19.55. See, for example, Homestake Gold of Australia Ltd v Peninsula Gold Pty Ltd (1996) 20 ACSR 67 at 74–5, expressly preferring the proper law to the Bondholders adoption of the lex loci contractus, but not in a negotiable instruments case. 23. Entores Ltd v Miles Far East Corp [1955] 2 QB 327. 24. Nova (Jersey) Knit Ltd v Kammgarn Spinnerei GmbH [1977] 1 WLR 713 at 718 per Lord Wilberforce. 25. Rosenhain & Co Ltd v Commonwealth Bank (1922) 31 CLR 46; cf Cheques Act 1986 (Cth) s 28. 26. Austraclear Regulations, reg 7. 27. See note 26 above, reg 7.9. 28. See note 26 above, regs 12.1–12.3. 29. See note 26 above, reg 8A. 30. [1990] 2 All ER 225. 31. See note 30 above, at 243. 32. Ex parte Cote (1873) LR 9 Ch App 27. 33. Koechlin et Cie v Kestenbaum [1927] 1 KB 889. 34. Cheques Act 1986 (Cth) s 117(7). 35. Bills of Exchange Act 1909 (Cth) s 77(a)(i); Cheques Act 1986 (Cth) s 117(4). 36. Bills of Exchange Act 1909 (Cth) s 77A; Cheques Act 1986 (Cth) s 117(5)(a). 37. Cheques Act 1986 (Cth) s 117(5)(b).

38. Bills of Exchange Act 1909 (Cth) s 77(a)(ii); Cheques Act 1986 (Cth) s 117(6). 39. An inland bill is a bill which on the face of it purports to be: (a) both drawn and payable within Australasia; or (b) drawn within Australasia upon some person resident therein: Bills of Exchange Act 1909 (Cth) s 9(1). 40. See Byles on Bills of Exchange, 28th ed, 2007, Ch 5 for a discussion of this proviso. 41. Guaranty Trust Co of New York v Hannay & Co [1918] 1 KB 43, but note the doubts expressed by Scrutton LJ in the Court of Appeal: [1918] 2 KB 623 at 670. 42. AG Guest, Chalmers and Guest on Bills of Exchange, Cheques and Promissory Notes, 17th ed, Sweet & Maxwell, London, 2009, pp 620–1. 43. Alcock v Smith [1892] 1 Ch 238 at 256 per Romer J, at 263 per Lindley LJ in the Court of Appeal; Embiricos v Anglo-Austrian Bank [1904] 2 KB 870 per Walton J; [1905] 1 KB 677 at 686 per Romer LJ, at 687 per Stirling LJ in the Court of Appeal; Koechlin et Cie v Kestenbaum [1927] 1 KB 889 at 899 per Sargant LJ; Bank Polski v KJ Mulder & Co [1942] 1 KB 497 at 500 per Mackinnon LJ; Nova (Jersey) Knit Ltd v Kammgarn Spinnerei GmbH [1977] 1 WLR 713 at 718 per Lord Wilberforce; G & H Montage GmbH v Irvani [1990] 2 All ER 225 at 233–4 per Mustill LJ; Banco Atlantico SA v British Bank of the Middle East [1990] 2 Lloyd’s Rep 504 at 507 per Bingham LJ. In Australia see the remarks of Dixon J in Wragge v Sims Cooper & Co (Aust) Pty Ltd (1934) 50 CLR 483 at 491. 44. The only express judicial dissenter was Vaughan Williams LJ in Embiricos v Anglo-Austrian Bank [1905] 1 KB 677 at 685. But other judges have expressed difficulty in giving a meaning to ‘interpretation’ (for example, Scrutton LJ in Guaranty Trust Co of New York v Hannay & Co [1918] 2 KB 623 at 670); and the decision of the Court of Appeal in Moulis v Owen [1907] 1 KB 746, involves an implied rejection of the broader meaning of interpretation. 45. (1934) 50 CLR 483 at 491. 46. Story, 1883, s 315. See also Re Gillespie; Ex parte Robarts (1886) 18 QBD 286; Re Commercial Bank of South Australia (1887) 36 Ch D 522 at 525–6. 47. Story, 1883, s 317. 48. Zebrarise Ltd v De Nieffe [2005] 1 Lloyd’s Rep 154; Dicey, Morris & Collins, 15th ed, 2012, p 2080. 49. (1867) LR 3 QB 77. 50. [1892] 1 Ch 238. 51. See note 50 above, at 256–7. 52. (1860) 5 H & N 728; 157 ER 1371. 53. [1892] 1 Ch 238 at 268. 54. In Macmillan Inc v Bishopsgate Trust plc (No 3) [1996] 1 All ER 585 at 597, Staughton LJ cited Alcock as authority for the proposition that the lex situs applies to assignments of negotiable instruments, but added ‘although arguably this supports the law of the place of the transaction’. 55. [1904] 2 KB 870; [1905] 1 KB 677 (CA). 56. [1905] 1 KB 677 at 685. 57. See note 56 above, at 687. In Re Loteka Pty Ltd (1989) 15 ACLR 620 at 626–7, McPherson J cited Embiricos as authority for application of the lex situs, as did Ambrose and Moynihan JJ in Douglas Financial Consultants Pty Ltd v Price [1992] 1 Qd R 243 at 257. 58. [1927] 1 KB 889. 59. See note 58 above, at 895–6. 60. See also note 58 above, at 899 per Sargant LJ.

61. Compare Macmillan Inc v Bishopsgate Trust plc (No 3) [1996] 1 All ER 585 at 608 per Auld LJ, citing Koechlin as authority for application of the lex situs. 62. But not, of course, as regards other parties on the bill, for example, as against a prior endorser: see Alcock v Smith [1892] 1 Ch 238. 63. See Dicey, Morris & Collins on the Conflict of Laws, 15th ed, 2012, p 2081. 64. The latter is supported by Dicey, Morris & Collins, 15th ed, 2012, pp 2083–4; Macmillan Inc v Bishopsgate Trust plc (No 3) [1996] 1 All ER 585 at 597 per Staughton LJ, 606–7 per Auld LJ. 65. Cheques Act 1986 (Cth) ss 40, 42. 66. Story, 1883, s 361. 67. Rouquette v Overman (1875) LR 10 QB 525. 68. Bills of Exchange Act 1909 (Cth), s 62 deals with the measure of damages for dishonoured bills under domestic Australian law, but without reference to choice-of-law principles. Karfarin Bank v Dara (No 2) [2010] 1 Lloyd’s Rep 236 at 242 per Blair J. 69. Livesley v Horst [1925] 1 DLR 159 at 162 per Duff J; Stevens v Head (1992) 176 CLR 433 at 458 per Brennan, Dawson, Toohey and McHugh JJ; Karfarin Bank v Dara (No 2) [2010] 1 Lloyd’s Rep 236 at 242 per Blair J. 70. See 22.13 above. 71. Barbour v Paradis (1929) QR 68 SC 31. 72. Re Commercial Bank of South Australia (1887) 36 Ch D 522. 73. Allen v Kemble (1848) 6 Moo PCC 314; and London & Brazilian Bank v Maguire (1895) QR 8 SC 358 are usually cited to support principles at variance with those in the text. In the first case a drawer and an endorser, and in the second case an endorser, respectively, were held entitled to rely on defences available to them by the lex loci contractus, but they were cases where the liability of the persons sued was not governed by the common law, so the outcome is consistent with the principles stated. 74. [1941] 2 All ER 728 at 732. 75. [1990] 2 All ER 225. 76. Dicey, Morris & Collins, 15th ed, 2012, pp 2094–6. 77. [1941] 2 KB 266. 78. The contention that the section governed the necessity for presentment was abandoned on appeal: [1942] 1 KB 497. Canadian courts applying identical legislation have applied the law where the bill was expressed to be payable even though the acceptance was unqualified: Sparks v Hamilton (1920) 47 OLR 55 at 60; Provincial Bank v Bellefleur [1936] 1 DLR 795 at 800. 79. [1941] 2 All ER 728 at 732. 80. See note 79 above, at 732. See the Bills of Exchange Act 1909 (Cth) s 51(2); Re Francke & Rasch [1918] 1 Ch 470. 81. Rothschild v Currie (1841) 1 QB 43; Horne v Rouquette (1878) 3 QBD 514. 82. [1990] 2 All ER 225. 83. Dicey, Morris & Collins, 15th ed, 2012, Rule 241(2), p 2098. 84. See note 83 above, at p 2099. 85. See note 83 above. 86. See note 83 above, at p 2100; Macmillan Inc v Bishopsgate Trust plc (No 3) [1996] 1 All ER 585 at

597, per Staughton LJ. 87. Ooi, Shares and Other Securities in the Conflict of Laws, Oxford, 2003, pp 72–3.

[page 540]

Chapter 23

International Monetary Obligations Introduction 23.1 Where an international contract creates a monetary obligation, whether expressed in Australian or foreign currency, the basic principle to remember is that the same conflictual principles are applicable to such a contract as to any other contract having connections with more than one country. Thus, in accordance with the general principle, any question affecting the substance of the debt must be determined by the proper law of the contract, while any question affecting the mode of performance falls to be determined by the law of the place of performance.1 23.2 There is a distinction in law between money as the expression of a standard or unit of value as the means of measuring an obligation and money which forms the means or instrument of discharging the obligation.2 In the former case money is used as a unit of account; in the latter case money is used as currency.3 The distinction is clear where a debt is expressed in a currency that is different from that of the law governing the debt obligation. Thus, for example, an Australian seller may enter into a contract that is governed by the law of New South Wales for the sale of wheat to a Japanese buyer at the price of US$300 per tonne. This does not necessarily mean that the seller desires to be paid in United States currency. The reference to that currency may have been inserted because the seller lacks confidence in the stability of either Australian or Japanese currency. In that case it may not mind in what currency it is actually paid provided it is the current equivalent of US$300 per tonne. In other words, the purpose of the reference to the United States dollar is as ‘the means of measuring the obligation’,4 or, as it is commonly called, as the ‘money of account’.

The seller may have stipulated that it be paid the purchase price in Sydney. If the contract is silent as to the currency in which the actual payment is to be made, the [page 541] buyer might pay in Australian legal tender to the equivalent value of US$300 per tonne, at the exchange rate prevailing at the time payment falls due. In that case the role of the Australian dollar is to provide ‘the means or instrument of discharging the obligation, the legal tender or representative money by which it is paid’,5 or, as it is more commonly called, ‘the money of payment’. On the other hand, the contract may stipulate that payment be made in United States currency, in which case that currency is both the money of account and of payment.

The Determination of the Money of Account 23.3 It is obvious that it is extremely important to determine by what currency the value of the debt is fixed. If a resident of Hong Kong sells certain goods to an Australian at the price of $5000, the value of the debt will vary greatly if Australian rather than Hong Kong dollars are meant. The determination of the money of account is a matter of the construction of the contract. Hence it must be determined according to the proper law of the contract. According to the rules of construction employed by Australian courts this depends primarily upon the intention of the parties.6 23.4 If the parties have not expressed their intention the court will conduct a search for relevant factors that is very similar to the process employed in the selection of the proper law (on which, see Chapter 19): First, the courts will presume in the absence of a clear contrary indication that there is only one money of account.7 Clearly in the example given before, the parties did not contemplate that the debt could be discharged by tendering either HK$5000 in Hong Kong or A$5000 in Australia. But the parties may adopt different moneys of account for different purposes of the contract.8 Second, there is a presumption that the money of payment is also the money of account. Thus, if the contract stipulated that the debt was to be paid in

Australian dollars it would be proper to assume that the money of account was also the Australian dollar.9 Third, there is a presumption that the currency of the proper law of the contract is the money of account, if the description is appropriate to that currency. Thus, if a contract governed by the law of an Australian jurisdiction uses the term ‘dollar’, it is proper to infer that the money of account is the Australian dollar.10 [page 542] Finally, the courts will consider all circumstances surrounding the transaction.11 Certain factors are of particular assistance. First and foremost is the manner in which the parties have described the currency in the contract. If parties to a contract connected with Australia have used the sign A$ to indicate the price, there is an almost conclusive presumption that the money of account is the Australian dollar.12 The reference must have been solely appropriate to a particular currency at the time the contract was entered into. It was held by the Privy Council in Bonython v Commonwealth13 that the words ‘pound sterling’ when used in a contract concluded in 1895 could apply to the currency then in use in the colony of Queensland. But when the same words were used in a contract concluded in 1932 it was held that by that time the words indicated exclusively the currency of the United Kingdom as opposed to that of New Zealand.14 23.5 Where a reference is ambiguous in the sense that it could refer to more than one currency, such as the use of the word ‘dollar’ in a contract with Australian, New Zealand and United States connections, the task of the court is much more difficult. In Bonython v Commonwealth,15 certain bonds expressed in pound sterling were issued by the Government of Queensland and made payable in a number of places, including the City of London. The Privy Council held that the Queensland currency (later subsumed in the Australian currency) was the money of account because: ‘The Government of a self governing country, using the terms appropriate to its own monetary system, must be presumed to refer to that system whether or not those terms are apt to refer to another system also’.16 On the other hand, in National Mutual Life Assoc of Australasia Ltd v AG of

New Zealand,17 where the Privy Council had to consider a contract whereby the New Zealand Government had promised to pay a sum expressed in ‘pounds’ (then the common denomination of currency of Australia and New Zealand) in Melbourne ‘free of exchange’, it was held that the use of the words ‘free of exchange’ displaced the presumption in favour of New Zealand currency and indicated that the money was to be repaid in Australia using Australian currency as the money of account, thus making exchange considerations irrelevant. In the final analysis, the court must consider all relevant factors including the place of payment of the debt, the place of residence and of business of the parties involved, the nature of their businesses, the purpose of their transactions, the history of their relationship before and after the date of their contract, and anything else that could be relevant.18 23.6 The right to have the debt calculated by reference to a particular money of account may be lost through waiver or a variation of the contract. In WJ Alan & Co Ltd [page 543] v El Nasr Export & Import Co,19 the original money of account was Kenya shillings. In payment the buyer established an irrevocable letter of credit expressed in sterling, which imposed on the bank an obligation to make payment in, and measured by, sterling. The Court of Appeal held that the seller, by drawing on this letter of credit, had either waived his right to have the debt calculated by reference to Kenya shillings or had agreed to substitute sterling as the money of account. As a result, he had to accept the consequences of a devaluation of sterling. In contrast, in Woodhouse AC Israel Cocoa Ltd v Nigerian Produce Marketing Co Ltd,20 where the money of account was the Nigerian pound, the Court of Appeal held that the seller, by agreeing to accept payment in sterling, had only agreed to vary the money of payment, but not the money of account. Consequently following the devaluation of sterling the buyers had to pay an increased amount in sterling sufficient to buy the now more expensive Nigerian pound.

The Role of the Law of the Currency 23.7 According to the principle of nominalism, which is a principle of domestic

law as well as of the law of conflicts, ‘the obligation to which a contract to pay a sum of money gives rise is to pay, in whatever the law regards as legal tender at the time when payment is made, as many of the units of currency as amount to the sum’.21 The principle of nominalism ignores changes in the real value of the currency; it means that a debt can be discharged by payment of whatever currently represents the nominal value of the amount originally indicated. As Holmes J observed in Deutsche Bank Filiale Nürnberg v Humphrey:22 ‘Obviously … a dollar or a mark may have different values at different times but to the law that establishes it, it is always the same’. Thus, Australian law takes no notice of the fact that a change in the value of the Australian dollar may make it more, or less, expensive to pay an Australian dollar obligation.23 Where a foreign currency has been referred to as the money of account, the law of that currency determines what is legal tender for the nominal value of the amount of the debt. An extreme example of the operation of the principle of nominalism is seen in Re Chesterman’s Trusts.24 In 1911, the creditor in a contract, the proper law of which was English, lent the debtor the sum of 31,000 German marks. The loan became repayable in 1920. Prior to 1914, the creditor could have insisted under German law upon being paid in gold coin, but with the outbreak of World War I, German law was changed to make Treasury notes legal tender for any amount to the same nominal value. Inflation [page 544] after the war reduced the intrinsic value of those paper notes to almost zero. Yet, it was held that the value of the debt had to be measured by reference to the value in 1923 of 31,000 marks in paper money converted at the then rate of exchange into English money. This meant that the debtor could discharge the debt in 1923 by tendering 6 pence whereas in 1911 he had borrowed the then equivalent of 1500 pounds sterling. Although the law of the currency determines what amount in current legal tender represents the original amount, it does not determine any other question affecting the value of the debt. Hence the question whether any relief should be granted from the depreciation of the currency, whether by way of the revalorisation of the original debt or by way of damages for failure to pay on the due date, is a matter for the proper law of the contract. This is illustrated by the

cases dealing with the German principle of revalorisation. According to this principle a debt expressed in pre-inflated currency could in certain circumstances be translated into its approximate value in current money. In Anderson v Equitable Assurance Soc of the United States25 the English Court of Appeal refused to apply the doctrine to a life assurance policy that expressed the sum assured in German marks but was otherwise governed by English law. As Atkin LJ said:26 ‘It is the debt that is valorized and not the currency’. On the other hand, in Kornatzki v Oppenheimer27 the proper law of the contract was that of Germany and, consequently, the German doctrine of revalorisation was applied. In Queensland v Northaus Trading Co Ltd,28 the Queensland Court of Appeal held that, as a matter of Australian law, damages should not be awarded to compensate for an exchange loss suffered as a result of late payment. If the currency in which payment is to be made loses value between the time when payment was due and the time when payment is made, the payee is not entitled to recover damages to compensate it for the loss in value. Similarly, in Idemitsu Queensland Pty Ltd v Agipcoal Australia Pty Ltd,29 the Queensland Court of Appeal held that a judgment debtor was not entitled to compensation for exchange rate losses suffered as a result of converting foreign currency to satisfy a judgment that was later reduced on appeal. The judgment debtor had satisfied the original judgment of A$29.5 million by converting Japanese yen to Australian dollars. The judgment was later reduced on appeal to A$15.72 million, which meant that the judgment debtor was entitled to reimbursement of A$13.78 million. The Australian dollar had declined in value against the yen between the date of payment and the date of reimbursement. The Queensland Court of Appeal held that the judgment debtor’s right was to repayment in Australian dollars and that it was not entitled to reimbursement of the exchange rate losses it had suffered as a result of converting yen to dollars to satisfy the judgment. [page 545] In contrast, in European Bank Ltd v Evans,30 the High Court of Australia held that a litigant who had given ‘the usual undertaking as to damages’ — ie, an undertaking to compensate the other party in the event that the interlocutory application was unsuccessful — pending an appeal for special leave was required to compensate the other party (a bank) for losses it had suffered as a

result of being unable to convert into euros the Australian dollar funds that had been paid into court pending the determination of the application for special leave to appeal.

Protective Clauses 23.8 In order to protect themselves against inflation, parties to contracts, both domestic and international, have sought to calculate the value of the obligation by reference to something more consistent in value than money. This can be done by stipulating that the debtor shall pay the equivalent in value of a certain quantity of some designated commodity, or by providing that the debt shall increase in similar proportion to any increase in the Consumer Price Index (CPI).31 For many years, international contracts made reference to the value of gold, although the use of ‘gold value’ clauses has almost disappeared in recent years because of the instability of the market value of gold. For some time it was thought that the use of gold clauses in order to avoid the consequences of nominalism was contrary to public policy.32 However, it would seem that today public policy, at least in relation to international transactions, runs in the opposite direction.33 In Brown Boveri (Australia) Pty Ltd v Baltic Shipping Co34 the bill of lading between a shipper and carrier incorporated the Hague Rules which were made by the International Convention relating to Bills of Lading agreed at Brussels in 1924. Article 4, r 5 of the Rules limited the liability of the carrier in respect of loss or damage to the goods carried to 100 pounds sterling per package or unit. Article 9 of the Rules provided: ‘The monetary units mentioned in this Convention are taken to be gold value’. The New South Wales Court of Appeal held that this meant that the reference to 100 pounds sterling in Art 4, r 5 had to be read by reference to the quantity of gold which was the equivalent of 100 pounds sterling [page 546] in 1924.35 If public policy considerations were relevant they pointed to the need for stability in an age of high inflation and fluid exchange rates.36 A CPI clause escalating the size of the debt by reference to the CPI does not offend against the principle of nominalism; it is merely a method of measuring the actual liability contracted for.37 The Corporations Act 2001 (Cth) s 761D

defines any arrangement by which the amount of the consideration is ultimately determined by, derived from, or varies by, reference to the value of something else, including an asset, a rate, an index or a commodity, as a derivative. Trading in derivatives is regulated by the Act, which requires any person trading in derivatives in Australia to have an Australian financial services licence.38 However, s 761D(4) provides that in an arrangement under which one party has an obligation to buy, and the other has an obligation to sell, property is not a derivative merely because the arrangement provides for the consideration to be varied by reference to a general inflation index such as the CPI.

The Money of Payment 23.9 There is a long-standing dispute between academic writers about whether the determination of the money of payment, in so far as it involves a question of the construction of the contract, is a matter for the proper law of the contract or of the law of the place of payment.39 In Commissioner of Taxation v Energy Resources of Australia,40 Beaumont J, with whom Gummow J agreed, held that the proper law determines the money of payment. Australian courts, in the absence of a contrary indication, will presume that the currency of the place of payment is the contractual money of payment.41 However, since the question in what currency tender should be made is a matter of method rather than substance, it would seem that the question of whether the creditor can [page 547] demand payment in the contractual money of payment, or must accept its equivalent in local currency, is a matter for the law of the place of performance.42

The Currency of the Judgment 23.10 It was once considered that Australian courts could only give judgment in terms of Australian currency as foreign currency could not be regarded as ‘money’ in the forum.43 The rule meant that debts expressed in foreign currency

had to be converted into Australian currency either at the date the debt first became payable (the maturity or breach date) or the date on which the judgment was given (the judgment date). As a general rule in actions for debt, breach of contract or tort, the maturity or breach date was preferred.44 However, there were notable exceptions where the judgment date rule was preferred, as in actions for restitution in equity,45 or the administration of estates.46 23.11 In England the local currency rule was abandoned by the House of Lords in Miliangos v George Frank (Textiles) Ltd,47 where it was held that an English court could give judgment in Swiss francs in a claim for liquidated damages for the breach of a contract governed by Swiss law with prices expressed in Swiss francs. The House of Lords also abandoned the maturity date rule, substituting the date of payment which, in the absence of a voluntary payment of the judgment debt, means the date when the plaintiff is given leave to levy execution for a sum expressed in the currency of the forum.48 The House of Lords followed its decision in Miliangos by a decision in The Despina R.49 Arbitrators conducting arbitrations in the United Kingdom may make an award in any currency, no matter what the currency of account or governing law of the claim.50 The facility to give judgment in foreign currency has been adopted by Australian courts including when enforcing foreign judgments.51 It has been said that judgments in Australian courts are now ‘routinely given in a foreign currency’.52 The practice has been accepted at the appellate level by the New South Wales Court of Appeal in Brown Boveri (Australia) Pty Ltd v Baltic Shipping Co53 and State Bank of [page 548] New South Wales Ltd v Swiss Bank Corp,54 by the Queensland Court of Appeal in Queensland v Northaus Trading Co Ltd,55 and by the Northern Territory Court of Appeal in Preti v Sahara Tours Pty Ltd.56 Examples at first instance can be found in the Federal Court, the Supreme Court of New South Wales, the Supreme Court of Victoria, the Supreme Court of Queensland, the Supreme Court of South Australia, the Supreme Court of Tasmania and the Supreme Court of Western Australia.57 In Victoria, the power of the Supreme Court to give judgment in foreign currency is implicitly accepted in the provisions of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 21.03(1.2), which

refers to ‘a claim for the recovery of a debt or damages in a currency not Australian dollars’. The High Court has still to make a reasoned decision on this issue as a matter of principle. In Chief Collector of Taxes Papua New Guinea v TA Field Pty Ltd,58 it upheld the registration under Pt IV of the now repealed Service and Execution of Process Act 1901 (Cth) of a Papua New Guinea judgment expressed in kina, but at that time the kina was the currency of an Australian territory authorised by Australian law. More recently, in European Bank Ltd v Evans,59 the High Court affirmed a judgment of the Supreme Court of New South Wales, which was originally given in US dollars, but which was subsequently converted by consent order into Australian dollars. The unanimous judgment of the High Court made no comment, positive or negative, about the propriety of the original judgment in US dollars. Although it is obviously possible to read too much into silence, one would think it more likely that the High Court would express its disapproval of the practice, if it indeed disapproved, than its express approval of a practice that has become routine. Although the court has power to express a judgment in foreign currency, it is not required to do so.60 [page 549] 23.12 In what currency should judgment be given? In breach of contract cases, the question is whether, expressly or by implication, the contract specifies in what currency payment for obligations under the contract should be made.61 In relation to a claim for liquidated damages for debt the currency should be the ‘proper currency of the contract’.62This will normally be the money of account of the contract,63 unless the parties agreed in the contract that the debt expressed in the money of account should be converted into the money of payment at a fixed rate,64 in which case the action should lie in the money of payment converted in the manner directed by the contract. An exchange loss suffered as a result of late payment is not recoverable.65 In an action for unliquidated damages for breach of contract, the currency of the contract may not be appropriate. The basic principle is that the court’s duty is to express a judgment in the currency that best expresses the loss of the party who sued.66 If the loss is felt in a currency other than the currency of the contract, damages should be awarded in the currency that most truly expresses

the plaintiff’s loss.67 For example, in Siemens Ltd v Schenker International (Aust) Pty Ltd (No 2),68 the currency of the contract was German, and the plaintiff was put to expenditures in German currency as a result of the defendant’s breach of contract, but the Supreme Court of New South Wales gave judgment in Australian dollars, because the plaintiff was an Australian company that kept its books of account in Australian dollars and had had to spend Australian dollars to buy the necessary German currency remittances. In BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 4),69 the plaintiff claimed for breach of warranty of authority by an agent purporting to have authority to charter a ship on behalf of a charterer. If the ship had been chartered, the plaintiff would have been paid hire by the charterer and would have earned a ballast bonus. Both sums would have been paid in US dollars, which was the currency of account stated in the contract. The proposed charterparty was silent on the currency in which other obligations were to be discharged, and there was no evidence about the currency in which those expenses were to be discharged. Finkelstein J gave [page 550] judgment for the unpaid hire and ballast bonus in US dollars and the balance of the claim in Australian dollars.70 In tort cases, the same test is to be applied, namely to give judgment in the currency that best expresses the loss of the party who sued.71 In The Despina R,72 two Greek ships collided off the Chinese coast. The plaintiff’s ship was damaged and temporary repairs were effected in Shanghai and paid for in Chinese yuan. Further repairs were made in Japan and paid for in yen and finally permanent repairs were made in the United States and paid for in United States dollars. The owner of the ship was a Liberian company with its head office in Greece. The ship was managed by a managing agent in New York. All payments were ultimately met out of a bank account kept by the agent in New York and the necessary foreign currency was bought with United States dollars out of this account. The House of Lords held that the currency in which the loss was ultimately expressed was the currency of the loss, which was United States dollars. 23.13 If a claim is made for the recovery of pre-judgment interest73 on a foreign currency debt by a plaintiff seeking a judgment expressed in that

currency, the appropriate rate of interest depends once again on the currency that best expresses the loss suffered, that is, the rate prevailing in the currency the creditor could reasonably be expected to borrow in order to replace the funds not paid on time. That is normally the currency of the judgment,74 but this is not a fixed rule and the court has a discretion to order such rate as it sees fit.75 Postjudgment interest is awarded at a rate prescribed by the law of the forum — in the case of an Australian forum, the law of the state or territory, or the state or territory in which the Federal Court is sitting.76 23.14 In Vehicle Wash Systems Pty Ltd v Mark VII Equipment Inc,77 Finkelstein J held that a statutory demand under the Corporations Act 2001 (Cth) s 459E for payment of a debt by a corporation is defective if made for a sum stated in foreign currency. That conclusion was based on Finkelstein J’s view that the House of Lords in [page 551] Miliangos had not abandoned the traditional view that an action to recover a liability expressed in a foreign currency was not an action in debt, but merely provided ‘a procedure under which orders could be made for payment of foreign currency claims in foreign currency’.78 In Daewoo Australia Pty Ltd v SuncorpMetway Ltd,79 Austin J disagreed with Finkelstein J’s opinion, preferring the principle stated by Mann,80 that a claim for failure to pay foreign currency is a claim in debt rather than a claim for damages. Under the Daewoo Australia approach, a s 459E demand can be made in foreign currency without converting the demand into Australian dollars. Making the statutory demand in the foreign currency in which the debt was incurred obviates any difficulty that might otherwise arise in selecting the date at which the debt should be converted into Australian dollars for the purpose of making the demand.81 Subsequent authorities have favoured the Daewoo approach,82 which was not even contested in either Hell Colour Australia Pty Ltd v Everbest Printing Co Ltd 83 or Micar Group Pty Ltd v Insul-Trade LLC.84 In Vehicle Wash itself, Finkelstein J held that even if a statutory demand for a sum stated in foreign currency is defective, it may nevertheless be effective because it amounts to substantial compliance with the statutory requirement.85 In Georges v Seaborn International,86 it was held that foreign currency paid by clients into segregated accounts held by a financial services licensee under s

981B of the Corporations Act 2001 was ‘money’ for the purposes of the Act and the Regulations (particularly reg 7.8.03(6)), so that it was available for distribution in the event of a deficiency in the account of the financial services licensee itself. The Federal Court held that there was no distinction between ‘money’ as a commodity and ‘money’ as a means of exchange; it always retains its character as a means of exchange.87 Citing Mann, the court said that for these purposes foreign money is to be regarded as ‘money’ in just the same way that local currency would be, and to hold otherwise would be to frustrate the purpose of the relevant provisions of the Corporations Act. 23.15 In contrast, a demand for payment of income tax under the Income Tax Assessment Act 1936 (Cth) s 218 must be stated in Australian dollars, so if an obligation to pay tax arises as a result of foreign currency dealings, the demand must [page 552] be for that sum of money in Australian dollars that would discharge the taxpayer’s obligations to the Commissioner of Taxation.88 Despite dicta suggesting that where the currency of the contract is foreign, claims should be brought in that currency,89 the better view is that apart from any special provision to the contrary, a party suing in Australia is entitled to demand that a debt for a civil wrong be settled in Australian currency.90

The Date of Conversion 23.16 As has been shown (see 23.11), the maturity date rule and by necessary implication, the judgment date rule, have been abandoned. Instead, a local judgment expressed in a foreign currency should be converted for payment in Australian currency at the date when the judgment debtor pays the amount due, although the plaintiff may elect for conversion at the date of judgment: see 23.20. 23.17 There is an exception to the payment date rule in bankruptcy and corporate winding-up proceedings. In Re Dynamics Corp of America (in liq),91 Oliver J of the English High Court held that the proper date for conversion was the date of making the order for the winding up of the company (or by analogy, the date of the sequestration order in bankruptcy).92 That was due to the need to

treat all creditors equally in such proceedings. The Dynamics Corp reasoning was later followed by the English Court of Appeal in Re Lines Bros Ltd (in liq) (No 1).93 So far as corporate insolvency is concerned, the matter is now settled in Australia by the Corporations Act 2001 (Cth) s 554C, which provides that conversion of foreign currency debts or claims should take place at the date the winding up is taken to have commenced.94 So far as bankruptcy is concerned, the Full Court of the Federal Court of Australia adopted the Dynamics Corp/Re Lines Bros position in Re Griffiths (a bankrupt),95 holding that the date of bankruptcy should be fixed as the date for conversion, while accepting that in some exceptional circumstances, [page 553] the creditor might be able to discharge the onus of showing that some other date produces a fairer and more convenient result.96 23.18 There are other miscellaneous statutory exceptions to the payment date rule. The liability of air carriers under the Civil Aviation (Carriers Liability) Act 1959 (Cth) is limited by reference to amounts fixed in Special Drawing Rights (SDRs). By s 9 of the Act, conversion of SDR amounts into Australian dollars is made using the exchange rate on the date of judgment. In contrast, in relation to sea carriers, the Carriage of Goods by Sea Act 1991 (Cth) leaves conversion of SDRs into national currency to be determined by ‘the law of the court seized of the case’.97 In Australia, that would be the payment date rule. Under the Foreign Judgments Act 1991 (Cth) a judgment creditor may choose to register a foreign judgment in the currency in which it was rendered.98 As noted below (see 23.20), this practice is quite widespread. Otherwise, the relevant date for conversion of the foreign judgment debt in Australian currency is the second business day before the day on which the application for registration is made.99 Under reg 21(3) of the Family Law Regulations 1984 (Cth) conversion of the amount due under a foreign maintenance order, maintenance agreement or child support liability must be calculated by using the telegraphic rate of exchange prevailing on the date on which the order, agreement or liability becomes

enforceable in Australia. The Child Support (Registration and Collection) Act 1988 (Cth) makes provision for enforcement of child maintenance orders made by foreign countries that provide reciprocal enforcement of Australian orders. Under reg 19 of the Child Support (Registration and Collection) Regulations 1988 (Cth), an ‘overseas maintenance liability’ expressed in foreign currency is converted into Australian dollars on the day when the order is registered in Australia. The maturity date rule is still embodied in s 77(d) of the Bills of Exchange Act 1909 (Cth), which provides that a foreign bill payable in Australia in a foreign currency shall, in the absence of a stipulation to the contrary, be calculated at the rate of exchange for sight drafts at the place of payment on the date the bill is payable. In Barclays Bank v Levin Bros (Bradford) Ltd,100 Mocatta J held that the equivalent English provision was facultative only and did not prevent suit being brought in the currency of the bill. [page 554]

Enforcement of a Judgment in Foreign Currency 23.19 As regards the mechanics of giving judgment in, and enforcing judgment for, foreign currency, Lord Denning MR suggested the following procedure in Schorsch Meier GmbH v Hennin:101 [T]hey can make an order in the form: ‘it is adjudged this day that the defendant do pay to the plaintiff’ so much in the foreign currency (being the currency of the contract) ‘or the sterling equivalent at the time of payment’. If the defendant does not honour the judgment, the plaintiff can apply for leave to enforce it. He should file an affidavit showing the rate of exchange at the date of the application and give the amount of the debt converted into sterling as at that date. Then leave will be given to enforce payment of that sum.

A Practice Direction of the High Court of England and Wales was later made stipulating that judgments in foreign currency should take the form that ‘the Defendant do pay the Plaintiff [the relevant sum in foreign currency] or the Sterling equivalent at the time of payment’.102 23.20 Support for a similar practice has been expressed in Australia,103 but courts also tend simply to give judgment in foreign currency without making any

order about conversion.104 As a practical matter, if the defendant voluntarily satisfies a judgment that is made in foreign currency, full satisfaction requires it to provide the number of Australian dollars corresponding to the judgment amount on the date that payment is made.105 If the defendant does not satisfy the judgment voluntarily and the plaintiff is forced to seek leave to enforce it,106 the enforcement order should convert the judgment debt into Australian dollars at the exchange rate prevailing at the time the order is made,107 although the order should also make it clear to the judgment debtor that if there is any change in the exchange rate between the date of the enforcement order and payment, the debtor must pay the judgment debt in Australian dollars at the rate on the date of payment, not the [page 555] date of the order.108 (In practice, the conversion should be acceptable if it uses the exchange rate on the business day preceding the date of issue of the enforcement order or of payment, as the case may be.)109 However, if a bankruptcy notice is issued in respect of a judgment in foreign currency, the notice must state that payment may be made either in the amount of foreign currency or its equivalent in Australian currency converted at the opening telegraphic transfer rate of the Commonwealth Bank of Australia prevailing on the second working day before the application was lodged.110 In ITC Distribution Ltd v Filmpac Holdings Ltd,111 Fullagar J of the Supreme Court of Victoria held that the court can give judgment in Australian currency converted at the date of judgment, if the plaintiff so elects. In Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd (No 2),112 Byrne J reconsidered this practice in the light of the authorities and came to the same conclusion, holding that it was consistent with the principles adopted in Miliangos. The plaintiff can be expected to exercise this right of election when the Australian dollar is expected to rise in value against the currency of the obligation after the date of judgment. For example, in Orica Australia Pty Ltd v Limit (No 2) Ltd,113 the plaintiff made a claim expressed in US dollars, but asked for judgment in Australian dollars, as the Australian dollar had appreciated in value by about one-third in the period between when the statement of claim was filed and when judgment was made. Applying the general principle that damages should be awarded in the currency that most truly expresses the plaintiff’s loss (see 23.12), the Supreme Court of Victoria held that the burden was on the plaintiff to prove

that its loss was felt in Australian dollars, rather than in US dollars, the currency in which it had framed its claim. Because the plaintiff had not discharged that burden, judgment was given in US dollars. 23.21 Execution of a judgment debt expressed in Australian currency can be levied by garnisheeing a bank account held in foreign currency by ordering the bank to exchange a sufficient amount of that currency into Australian dollars as is necessary to meet the judgment debt.114 If the judgment is expressed in a foreign currency, a fortiori, the garnishment can be levied directly on an account kept in that currency. It has also been held that it is permissible to direct the sale of valuable items by way of execution for a price in the foreign currency in which the judgment is expressed.115 [page 556]

Currency Trading 23.22 Many countries have laws regulating the international sale and transfer of currency and securities. Australian law used to prohibit the buying, borrowing or lending of foreign currency and the transfer of foreign securities to Australian residents or the transfer of Australian securities to foreigners without Reserve Bank permission.116 Trading in foreign currency and ‘financial products’ is now regulated under a licensing regime created by the Corporations Act 2001 (Cth), which requires any person who buys and sells foreign currency as part of a financial services business in Australia to acquire an Australian financial services (AFS) licence.117 23.23 Under the established rules of the conflict of laws a foreign currency law is applicable where it is part of the proper law of a contract of debt or bailment.118 It is a good defence that payment of the debt or transfer of the security is prohibited by the law of the place of performance.119 The law of the place where the debt or security is situated is not per se relevant.120 Australia is a party to the International Monetary Agreement, which created the International Monetary Fund (IMF) and the International Bank for Reconstruction and Development (the World Bank). Article VIII s 2(b) of this agreement provides:

Exchange contracts which involve the currency of any member and which are contrary to the exchange control regulations of any member maintained or imposed consistently with this Agreement shall be unenforceable in the territories of any member.

This provision is intended to impose upon the courts of member states an obligation not to enforce exchange contracts that offend against the law of any member regardless of the proper law of the contract.121 Although the Australian Parliament ratified the International Monetary Agreement in the International Monetary Agreements Act 1947 (Cth) the Governor-General has not made the necessary regulations under s 11 of the Act to bring the provisions of the agreement into effect as part of the internal law of Australia. Hence the provisions of Art VIII s 2(b) are not binding upon Australian courts. _________________________ 1.

Bonython v Commonwealth [1951] AC 201 at 219.

2.

Cusack v Commissioner of Taxation (2002) 120 FCR 520 at 524, at [11] per Cooper J.

3.

See note 2 above.

4.

Bonython v Commonwealth (1948) 75 CLR 589 at 621 per Dixon J.

5.

See note 4 above, at 621 per Dixon J.

6.

See note 4 above, at 624 per Dixon J.

7.

See note 4 above, at 623 per Dixon J.

8.

The Alexandra I [1972] 2 Lloyd’s Rep 469.

9.

Parsons and Co Ltd v Electricity Trust of South Australia (1976) 16 SASR 93; Federal Commissioner of Taxation v Energy Resources of Australia (1994) 126 ALR 161 at 172 per Beaumont J. Compare Messenger Press Pty Ltd v Commissioner of Taxation [2012] FCA 756 at [125], per Perram J, which considers a hypothetical in which a multicurrency debt obligation might be satisfied by payment in Australian dollars.

10. Papua and New Guinea Development Bank v Manton [1982] VR 1000. 11. Idemitsu Queensland Pty Ltd v Agipcoal Australia Pty Ltd [1996] 1 Qd R 26 at 45–6 per Pincus JA. 12. WJ Alan & Co v El Nasr Export and Import Co [1972] 2 QB 189. 13. [1951] AC 201. 14. De Bueger v J Ballantyne & Co Ltd [1938] AC 452. 15. [1951] AC 201. 16. See note 15 above, at 222. 17. [1956] AC 369. 18. Goldsbrough Mort & Co Ltd v Hall [1948] VLR 145. 19. [1972] 2 QB 189 20. [1971] 2 QB 23. 21. Bonython v Commonwealth (1948) 75 CLR at 621 per Dixon J; Cusack v Commissioner of Taxation (2002) 120 FCR 520 at 524–5, at [13]–[14] per Cooper J.

22.

272 US 517 at 519 (1926), quoted in Idemitsu Queensland Pty Ltd v Agipcoal Australia Pty Ltd [1996] 1 Qd R 26 at 45 per Pincus JA.

23. Idemitsu Queensland Pty Ltd v Agipcoal Australia Pty Ltd [1996] 1 Qd R 26 at 45 per Pincus JA. 24. [1923] 2 Ch 466. 25. (1926) 134 LT 557. 26. See note 25 above, at 566. 27. [1937] 4 All ER 133. 28. [1999] QCA 313 (Pincus JA, Moynihan and Atkinson JJ). 29. [1996] 1 Qd R 26. 30. (2010) 240 CLR 432; 264 ALR 1. 31. Stanwell Park Hotel Co Ltd v Leslie (1952) 85 CLR 189. 32. Treseder-Griffin v Co-op Insurance Soc Ltd [1956] 2 QB 127; Campos v Kentucky and Indiana Terminal Railroad Co [1962] 2 Lloyd’s Rep 459. For a criticism, see Mann, ‘The Gold Clause in Domestic Contracts’ (1957) 73 LQR 181. See also the trilogy of ‘gold clause’ cases in the United States, where the Supreme Court upheld the power of Congress to forbid use of gold clauses in public bonds and private contracts: Norman v Baltimore & Ohio Railroad Co, 294 US 240 (1935); Nortz v United States, 294 US 317 (1935); Perry v United States, 294 US 330 (1935). 33. In the United States, the Abrogation Act, which forbade use of gold clauses, was amended in 1977 so that it does not apply to obligations issued after 27 October 1977: 31 USC § 5118(d)(2). The Act continues to apply to obligations incurred before that date: Schickler v Santa Fe Southern Pacific Corp, 593 NE 2d 961 (Ill App 1992). 34. (1989) 15 NSWLR 448. 35. See also the similar conclusion reached by Hobhouse J in The Rosa S [1989] QB 419. 36. Brown Boveri (Australia) Pty Ltd v Baltic Shipping Co (1989) 15 NSWLR 448 at 462 per Kirby P, and at 471 per Hope JA. 37. Stanwell Park Hotel Co Ltd v Leslie (1952) 85 CLR 189. 38. Corporations Act 2001 (Cth) s 911A, 911D. Derivatives are included as ‘financial products’ by Corporations Act 2001 (Cth) s 764A(1)(c). 39. For the proper law of the contract see Wolff, Private International Law, 2nd ed, Clarendon Press, Oxford, 1950, p 461; Graveson, ‘The Discharge of Foreign Monetary Obligations in the English Courts’ in Yntema (ed), Lectures on Conflict of Laws and International Contracts, University of Michigan Law School, Ann Arbor, 1951, p 115. In favour of the lex loci solutionis are Proctor, Mann on the Legal Aspect of Money, 7th ed, Oxford University Press, Oxford, 2012; and Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet and Maxwell, London, 2012, pp 2361–2, citing the Rome I Regulation (EC Reg 593/2008), Art 12(2) as authority. The difference between these views is more apparent than real. 40. (1994) 54 FCR 25 at 37; 126 ALR 161 at 172 (affirmed on other grounds: (1996) 185 CLR 66; 137 ALR 18). 41. Goldsbrough Mort & Co Ltd v Hall (1949) 78 CLR 1 at 34 per Dixon J; Bonython v Commonwealth (1948) 75 CLR 589 at 600 and 603 per Latham CJ; Commissioner of Taxation v Energy Resources of Australia (1994) 54 FCR 25 at 37–8; 126 ALR 161 at 172–3 per Beaumont J (affirmed on other grounds: (1996) 185 CLR 66; 137 ALR 18). See also Bills of Exchange Act 1909 (Cth) s 77(d). 42. Khoury v Khayat [1943] AC 507; Moll v Royal Packet Navigation Ltd (1952) 52 SR (NSW) 187.

Bando Trading Co Ltd v Registrar of Titles [1975] VR 353. See also Jolley v Mainka (1933) 49 CLR 43. 242 at 260 per Dixon J (obligation to pay foreign money does not create a debt). 44. Tomkinson v First Pennsylvania Bank and Trust Co [1961] AC 1007. 45. In re Dawson, dec’d [1966] 2 NSWR 211. 46. Re Hawkins [1977] Ch 714. 47. [1976] AC 443. 48. Miliangos v George Frank (Textiles) Ltd [1976] AC 443 at 498 per Lord Cross. 49. [1979] AC 685. 50. Arbitration Act 1996 (United Kingdom) s 48(4), as interpreted in Lesotho Highlands Development Authority v Impreglio SpA [2006] 1 AC 221. 51. Norsemeter Holdings AS v Boele (No 3) [2002] NSWSC 390 (judgment in Swedish kroner and Norwegian kroner); Eisenberg v Joseph [2001] NSWSC 1062 (judgment in Austrian schillings). 52. Uganda Telecom Ltd v Hi Tech Telecom Pty Ltd (2011) 277 ALR 441 at 445, [20] per Foster J. 53. (1989) 15 NSWLR 448 at 464 per Kirby P and 472 per Hope JA. 54. (1995) 39 NSWLR 350. 55. [1999] QCA 313 (Pincus JA, Moynihan and Atkinson JJ) at [14]. 56. [2008] NTCA 2 at [43] per Mildren, Thomas and Riley JJ. 57. Mitsui OSK Lines Ltd v The Ship Mineral Transporter [1983] 2 NSWLR 564 (reversed on other grounds: [1986] AC 1); Maschinenfabrik Augsburg-Nuremburg AG v Altikar Pty Ltd [1984] 3 NSWLR 152; ANZ Banking Group Ltd v Cawood [1987] 1 Qd R 131; Foti v Banque Nationale de Paris (No 1) (1989) 54 SASR 354 at 430–2 per Legoe J; International Factors (Singapore) Pty Ltd v Speedy Tyres Pty Ltd [1991] Tas R (NC) N9; (1991) 5 ACSR 250; Westpac Banking Corp v MV Stone Gemini [1999] FCA 917 (final orders after decision at (1999) 110 FCR 47); Hong Kong Kapok Vacuum Flask Enterprises Pty Ltd v Megavest International Pty Ltd [2003] VSC 330; Tacko v Talacko [2009] VSC 579 (judgment given in euros); BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 4) (2009) 263 ALR 63 (FCA) (judgment given in both US and Australian dollars); Orica Australia Pty Ltd v Limit (No 2) Ltd (2011) ANZ Ins Cas ¶61-877; [2011] VSC 65 (judgment in US dollars); Uganda Telecom Ltd v Hi_Tech Telecom Pty Ltd (2011) 277 ALR 441 (FCA) (judgment in US dollars); Alstom Ltd v Sirakas [2012] NSWSC 1064 (judgment in euros); Hightime Investments Pty Ltd v Adamus Resources [2012] WASC 295 at [200] per Edelman J (obiter) (judgment could be given in US dollars). 58. (1975) 49 ALJR 351. 59. (2010) 240 CLR 432; 264 ALR 1. 60. Brown Boveri (Australia) Pty Ltd v Baltic Shipping Co (1989) 15 NSWLR 448 at 464 per Kirby P; Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd (No 2) [1998] VSC 135 at [11] per Byrne J; Preti v Sahara Tours Pty Ltd (2008) 22 NTLR 215 at [43] per Mildren, Thomas and Riley JJ. 61. BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 4) (2009) 263 ALR 63 at 64 per Finkelstein J, citing Services Europe Atlantique Sud (SEAS) of Paris v Stockholms Rederiaktiebolag Svea of Stockholm (The Folias) [1979] AC 685 at 699, 700 per Lord Wilberforce. 62. Jugoslavenska Oceanska Plovidba v Castle Investment Co Inc [1974] QB 292 at 298 per Lord Denning MR. 63. BP Exploration Co v Hunt (No 2) [1979] 1 WLR 783 at 841 per Goff J. 64. Marrache v Ashton [1943] AC 311. 65. Queensland v Northaus Trading Co Ltd [1999] QCA 313 (Pincus JA, Moynihan and Atkinson JJ).

66. Brown Boveri (Australia) Pty Ltd v Baltic Shipping Co (1989) 15 NSWLR 448 at 464 per Kirby P; Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd (No 2) [1998] VSC 135 at [11] per Byrne J; Preti v Sahara Tours Pty Ltd (2008) 22 NTLR 215 at [43] per Mildren, Thomas and Riley JJ; BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 4) (2009) 263 ALR 63 at 64–5 per Finkelstein J; Orica Australia Pty Ltd v Limit (No 2) Ltd (2011) ANZ Ins Cas ¶61-877; [2011] VSC 65 at [26] per Pagone J. See also Services Europe Atlantique Sud (SEAS) of Paris v Stockholms Rederiaktiebolag Svea of Stockholm (The Folias) [1979] AC 685 at 699-700 per Lord Wilberforce. 67. Services Europe Atlantique Sud (SEAS) of Paris v Stockholms Rederiaktiebolag Svea of Stockholm (The Folias) [1979] AC 685 at 701 per Lord Wilberforce. See also Virani Ltd v Manuel Revert y Cia SA [2004] 2 Lloyd’s Rep 14 (CA). 68. [2001] NSWSC 742. 69. (2009) 263 ALR 63. 70. See also Orica Australia Pty Ltd v Limit (No 2) Ltd (2011) ANZ Ins Cas ¶61-877; [2011] VSC 65, where judgment was given in US dollars, the currency of account, because there was insufficient evidence that the plaintiff had felt the loss in Australian dollars, as it claimed at trial. 71. BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 4) (2009) 263 ALR 63 at 64 per Finkelstein J. 72. Owners of MV Eleftherotria v Owners of MV Despina R [1979] AC 685. This case is a companion to, and was decided by the House of Lords at the same time as, The Folias, note 72 above. 73. For example, Civil Procedure Act 2005 (NSW) s 100. 74. Maschinenfabrik Augsburg-Nuremburg AG v Altikar Pty Ltd [1984] 3 NSWLR 152; Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd (No 2) [1998] VSC 135 (reversed on other grounds [2001] VCA 25); Westpac Banking Corp v MV Stone Gemini [1999] FCA 917 (final orders after decision at (1999) 110 FCR 47); Norsemeter Holdings AS v Boele (No 3) [2002] NSWSC 390; BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 4) (2009) 263 ALR 63 at 65 per Finkelstein J. 75. Swiss Bank Corp v State Bank of New South Wales (1995) 39 NSWLR 350. 76. BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 4) (2009) 263 ALR 63 at 65 per Finkelstein J. For example, Civil Procedure Act 2005 (NSW) s 101(2). 77. (1997) 80 FCR 571; 150 ALR 261. See also Dominion Capital Pty Ltd v Pico Holdings Inc (2001) 4 VR 195 at 199, at [6], where Habersberger J stated, obiter, that stating a debt in United States dollars would amount to a deficiency. 78. Vehicle Wash Systems Pty Ltd v Mark VII Equipment Inc (1997) 80 FCR 571 at 576–7; 150 ALR 261 at 266. 79. (2000) 48 NSWLR 692. Austin J reiterated the same position in SMEC International Pty Ltd v CEMS Engineering Inc (2001) 38 ACSR 595. 80. Proctor, Mann on the Law of Money, 7th 3d, 2012, pp 212–13. See also Choice Investments Ltd v Jeromnimon Midland Bank Ltd, Garnishee [1981] QB 149. 81. Aldridge Electrical Industries Pty Ltd v Mobitec AB (2001) 39 ACSR 287 at 291–5 per Santow J. 82. See, eg, Sugarmill SL v Nomis Sports Innovations Pty Ltd; Re Nomis Sports Innovations Pty Ltd [2011] FCA 1285. 83. [2010] VSC 643. 84. (2011) 244 FLR 403 (SCNSW). 85. Vehicle Wash Systems Pty Ltd v Mark VII Equipment Inc (1997) 80 FCR 571 at 578–9; 150 ALR 261 at 268.

86. (2012) 288 ALR 240 at 265–6 per Gordon J (FCA). 87. See note 86 above, at 265, citing Camdex International Ltd v Bank of Zambia (No 3) [1997] CLC 714 at 731–2 per Lord Phillips. 88. Conley v FCT (1998) 81 FCR 24; 152 ALR 467. 89. Jugoslavenska Oceanska Plovidba v Castle Investment Co Inc [1974] QB 292 at 298 per Lord Denning MR; Miliangos v George Frank (Textiles) Ltd [1976] AC 443 at 468 per Lord Wilberforce. 90. Brown Boveri (Australia) Pty Ltd v Baltic Shipping Co (1989) 15 NSWLR 448 at 464 per Kirby P, at 472 per Hope JA. 91. [1976] 2 All ER 669. 92. This principle has now been embodied in bankruptcy administration in the United Kingdom by the Insolvency Rules 1986 (United Kingdom) r 6.111. 93. [1983] Ch 1. 94. Section 554C provides that conversion be done as at the ‘relevant date’, which is defined in the Dictionary in s 9 as ‘the day on which the winding up is taken because of Division 1A of Part 5.6 to have begun’, which for court-ordered winding-up is defined by s 513A. The date-of-liquidation rule was applied by Dowsett J before passage of the Corporations Act 2001 (Cth) in Re Gresham Corp Pty Ltd (in liq) [1990] 1 Qd R 306, following Dynamics Corp and Re Lines. 95. (2004) 139 FCR 185; 209 ALR 721. See also re MF Global Australia Ltd (in liq) (2012) 267 FLR 27 (SCNSW). 96. Re Griffiths (a bankrupt) (2004) 139 FCR 204; 209 ALR 738 at [73]–[74] per Beaumont, Weinberg and Crennan JJ. 97. Carriage of Goods by Sea Act 1991 (Cth), Sch 1A, Art 4, r 5(d). 98. Foreign Judgments Act 1991 (Cth) s 6(11)(a). See also in respect of New Zealand judgments: Federal Court of Australia Act 1976 (Cth) s 32W(5)(a). 99. Foreign Judgments Act 1991 (Cth) s 6(11)(b). See also in respect of New Zealand judgments: Federal Court of Australia Act 1976 (Cth) s 32W(5)(b). 100. [1977] 1 QB 270. 101. [1975] QB 416 at 425. 102. Practice Direction (Judgment: Foreign Currency) [1976] 1 WLR 83 at 84. See, for example, Barclays Bank International v Levin Bros (Bradford) Ltd [1977] 1 QB 270 at 283, where Mocatta J directed ‘that the plaintiff should have judgment for US$92,548.70 and, if he so desires, the equivalent thereof in sterling at the date of payment of this judgment or of its enforcement’. 103. ANZ Banking Group Ltd v Cawood [1987] 1 Qd R 131 at 134 per Williams J; BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 4) (2009) 263 ALR 63 at 65 per Finkelstein J. 104. See, for example, Maschinenfabrik Augsburg-Nuremburg AG v Altikar Pty Ltd [1984] 3 NSWLR 152 at 155 (minute of orders); Hong Kong Kapok Vacuum Flask Enterprises Pty Ltd v Megavest International Pty Ltd [2003] VSC 330; Preti v Conservation Land Corp (2007) 20 NTLR 97 (judgment varied as to amounts but not form: (2008) 22 NTLR 215). 105. Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd (No 2) [1998] VSC 135 at [8] per Byrne J. 106. See, for example, SC(GCP)R (Vic) r 68.02(1)(f), requiring application for leave for enforcement of a judgment in foreign currency. 107. Re Walsh; Ex parte The Flying Tiger Line Inc (1985) 7 FCR 579 at 581; 62 ALR 318 at 320 per

Beaumont J; Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd (No 2) [1998] VSC 135 at [12] per Byrne J. 108. Re Walsh; Ex parte The Flying Tiger Line Inc (1985) 7 FCR 579 at 580–1; 62 ALR 318 at 319–20 per Beaumont J. 109. See note 108 above. 110. Bankruptcy Regulations 1996 (Cth) reg 4.04. 111. VSC, Fullagar J, No 4787/90, 6 March 1990, unreported, BC9000889. 112. [1998] VSC 135. 113. (2011) ANZ Ins Cas ¶61-877; [2011] VSC 65. 114. Choice Investments Ltd v Jeromnimon [1981] QB 149. 115. The Halcyon the Great [1975] 1 WLR 515. 116. Banking (Foreign Exchange) Regulations 1959 (Cth) made under the Banking Act 1959 (Cth). 117. Corporations Act 2001 (Cth) s 911A. 118. Re Helbert Wagg and Co Ltd [1956] Ch 323. 119. Ralli Bros v Compania Naviera Sota y Aznar [1920] 2 KB 287. See generally 19.76. 120. Rossano v Manufacturers’ Life Insurance Co [1963] 2 QB 352. 121. For its interpretation in England, see: Wilson, Smithett and Cope Ltd v Terruzzi [1976] QB 683; United City Merchants v Royal Bank of Canada [1983] AC 168.

[page 557]

PART V

Family Law Chapters 24

The Meaning of Marriage

25

The Creation of a Valid Marriage

26

Principal Relief: Dissolution, Annulment, Declarations and Legal Separation

27

Matrimonial Property and Financial Relief

28

The Welfare of Children

29

The Status of Children

30

Adoption

31

Mental Incapacity

[page 559]

Chapter 24

The Meaning of Marriage The Definition of Marriage 24.1 In Australia, ‘marriage’ is a constitutional term, the full meaning of which has not exhaustively been determined by the High Court.1 Although parliament cannot ascribe to it whatsoever arbitrary meaning it pleases, such a constitutional term is construed with ‘full generality and in a manner that accommodates the changes that have occurred over a century …’ since Federation, and within those broad parameters can be defined by parliament.2 24.2 In 2004 a definition of ‘marriage’ was, for the first time, inserted in the Marriage Act 1961 (Cth) (the Marriage Act); namely, ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’.3 This reflected a description — not a definition — of marriage which already appeared in the Family Law Act 1975 (Cth).4 24.3 This statutory formula adapts the celebrated dictum of Sir J P Wilde (later Lord Penzance) in Hyde v Hyde, which has recently been approved as representing the common law position in England and Wales, and given statutory force there.5 In view of the provisions of the Family Law Act it cannot be said that marriage is nowadays an indissoluble union. The formula means that the union is one into which the parties enter, so far as they can foresee at that time, for life, though supervening circumstances may later bring about its dissolution during their joint lives. 24.4 Originally, the formula did no more than describe the nature of marriage under the domestic law of Australia, and did not, of itself, define the types of relationship, created abroad, which Australian courts would recognise as marriages.6 Nonetheless, the type of marriage it describes is that which our courts most fully

[page 560] recognise. Now, the 2004 amendments to the Marriage Act — introduced in order to exclude the possibility of same-sex unions being recognised as marriages — have the consequence that the statutory definition also defines the type of marriage celebrated overseas that will be given recognition under Australian law. 24.5 This type of marriage has been described as a ‘monogamous’ marriage. Despite the use of the term ‘Christian marriage’ by some judges, monogamy is not a uniquely Christian institution, and it is not a precondition for recognition that a marriage be celebrated according to Christian rites, or that the parties to it be Christians.7 The present essential requirements are that the relationship (1) is a union between persons of the opposite sex, that (2) does not permit the taking of an additional spouse while it is current, and (3) is not limited in duration to a specific term. Below, these three requirements are considered in turn.

Union Between Persons of Opposite Sex: Same-Sex and Transgender Marriages 24.6 Until recently, it has been assumed that the requirement that the parties to a ceremony of marriage be of the opposite sex is fundamental to the concept of marriage.8 However, this is no longer so clearly the case. For many years people have lived together in relationships indistinguishable from marriage save for the circumstance that the partners are of the same sex (and may not have undergone a formal ceremony). In recent years there have been moves, in Australia and elsewhere, towards affording same-sex unions equivalent legal status to heterosexual marriages.9 24.7 In many overseas jurisdictions, legislative or judicial activity has resulted in the concept of ‘marriage’ being extended to include same-sex unions. Initially, Denmark, Norway and Sweden passed legislation providing for legal registration of partnerships between persons of the same sex, with the effect that registered partnerships had almost all the consequences of a heterosexual marriage — but they were nonetheless not called ‘marriages’.10 However, since 1 April 2001 it has been possible for persons of the same sex to enter into a marriage in the Netherlands.11 In Europe, same sex marriage is now recognised in Belgium, Denmark, Iceland, the Netherlands, Norway, Portugal, Spain and Sweden. A

number of states have some form of civil union. Nonetheless, the European Court of Human Rights has [page 561] held that the European Convention on Human Rights does not impose a positive obligation on states to recognise same-sex relationships, and that while differences based on sexual orientation required particularly serious justification, states are to be accorded a relatively wide margin of appreciation in justifying any difference in treatment, so that “States are still free, under Article 12 of the convention as well as under Article 14 taken in conjunction with Article 8, to restrict access to marriage to different-sex couples.”12 24.8 In Canada13 and South Africa14, judicial decisions to the effect that exclusion of same-sex couples from eligibility for marriage was contrary to constitutional guarantees, was followed by legislation providing for same-sex marriage. 24.9 In the United Kingdom, the Civil Partnership Act gave recognition to same-sex partnerships and accorded them the same substantive rights and responsibilities as opposite-sex marriages, the only effective distinctions being that the term marriage was withheld, and civil union ceremonies could not be religious. In Wilkinson v Kitzinger15, the petitioners, who were both domiciled in the United Kingdom, had married in Canada. The effect of the legislation was that their marriage was recognised in the United Kingdom as a civil partnership.16 It was contended that because the full social status of marriage was denied to the petitioners, the legislation impinged on the European convention rights to respect for private and family life and the right to marry and, because this was based on the sexuality of the petitioners, contravened the prohibition on discrimination. Sir Mark Potter P found that “[r]ead in a straightforward manner it seems to me clear that the wording of Article 12 refers to the right to “marry” in the traditional sense (namely as a marriage between a man and a woman).”17 As for the argument that the right to respect for private and family life had been violated, Potter P accepted that there must exist particularly weighty reasons to justify any restriction on or interference with “the right to establish and develop relationships with other human beings”18, but that “by declining to recognise a same-sex partnership as a marriage in legislation the purpose and the thrust of which is to enhance their rights, the state cannot be said

improperly to intrude on or interfere with the private life of a same-sex couple who are living in a close loving and monogamous relationship.”19 His Honour found that while the legislative scheme was within the ambit of the right to marry20, any discrimination created by [page 562] the difference in titles had a legitimate aim, namely “preserving and supporting the concept and institution of marriage as a union between persons of opposite sex.”21 Further, the distinction was reasonable and proportionate and fell within the margin of appreciation accorded to states in implementing the Convention Rights. However, on 5 February 2013, the House of Commons passed the Marriage (Same Sex Couples) Bill. It is currently being examined by the Marriage (Same Sex Couples) Bill Committee. The bill will make same sex marriage lawful in England and Wales, and is expected to be enacted in early 2014. The Scottish parliament is also currently undergoing a consultation period examining whether same sex marriage should be made lawful. On 27 June 2013, the Scottish Government introduced the Marriage and Civil Partnerships Bill (Scotland) in the Scottish Parliament. The bill is being fast tracked for implementation in early 2014. 24.10 In the United States, marriage was held by Courts to admit of same-sex partners in Hawaii,22 Vermont,23 Massachusetts,24 California,25 Connecticut,26 and Iowa27 — essentially on the basis that to exclude same-sex partners from the institution of marriage was to deny them constitutional guarantees of equality. Courts in some other states took an opposite view.28 Some states responded with ‘Defense of Marriage’ Acts that define marriage in terms that exclude same-sex relationships, and most states now constitutionally define marriage in terms that exclude same-sex couples.29 However, in Connecticut, such legislation was struck down as denying equal protection of the [page 563] law.30 In California, a constitutional amendment that reversed the California Supreme Court decision31 that effectively allowed same sex marriage - and substantively the same as many clauses found in other state constitutions - was

invalidated upon the ground that it was inconsistent with the equal treatment provisions of the Bill of Rights.32 But in Hawaii, a similar challenge failed.33 In 1996 the United States Congress enacted the Defense of Marriage Act,34 which defined marriage as a union between “one man and one woman” for the purposes of “determining the meaning of any act of Congress or any ruling, regulation or interpretation of the various administrative bureaus and agencies of the US.” In June 2013, the United States Supreme Court held that section three, which prohibited any federal department from recognising same sex marriages made under state legislation, violated the due process clause and implied equal protection provisions of the Fifth Amendment.35 24.11 In Argentina, a same sex marriage bill was enacted in 2010 to allow for same sex marriage. In Brazil and Mexico, some states permit the performance of same sex marriages, and others, while not permitting their performance, recognise those performed elsewhere. Israel recognises same sex marriages performed elsewhere. 24.12 In New Zealand, it was held that the Marriage Act 1955 (NZ) did not authorise same-sex marriage.36 Civil unions provided most of the rights and responsibilities of marriage. However, the Marriage (Definition of Marriage) Amendment Act received Royal assent on 21 August 2013, extending marriage to couples of the same sex in that country. 24.13 Developments in Australia have been more sedate.37 Since 1999 the Property (Relationships) Act 1984 (NSW) has treated same-sex partners in approximately the same way as opposite-sex partners in de facto relationships, for the purpose [page 564] of property adjustment on relationship breakdown, and since 1 March 2009 the Family Law Act 1975 (Cth) has made similar provision, consequent on the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, in respect of de facto relationships – defined to include same-sex relationships – that end on or after that date. There are now three ‘civil union’ schemes — in Victoria, Tasmania and the Australian Capital Territory — which provide for a formal union between same-sex partners.38 However, while these schemes afford registered same-sex relationships some of the incidents of marriage, they stop short of equating such relationships to marriage.

The standing of same-sex and transgender marriages in Australia 24.14 The spread of legislative and judicial recognition of same-sex marriage around the world poses the distinct possibility that the High Court might allow that, over the century since Federation, ‘marriage’ in its constitutional setting has evolved to include, or at least to be capable of including, a same-sex union. If (as is argued below) the lex loci celebrationis determines the nature of a marriage,39 it might be argued, by analogy, that a same-sex marriage celebrated in the Netherlands or a transgender marriage celebrated in New Zealand should be characterised as a marriage, rather than merely as the cohabitation of persons of the same sex, even if the parties later take up residence in Australia. However, the statutory definition was enacted in 2004 to exclude that prospect. It could not be said that the statutory definition is an artificial or contrived one — to the contrary, it is one which would until relatively recently have been almost universally accepted — and in those circumstances, it has the consequence that in Australian law, a same-sex union remains outside the concept of ‘marriage’. 24.15 The proliferation of recognition of same-sex marriages overseas also meant that Australian courts might be asked to give recognition to same-sex marriages lawfully entered into abroad. The Commonwealth Parliament responded to this prospect too, by legislating that a union solemnised in a foreign country between same-sex partners must not be recognised as a marriage in Australia.40 24.16 The extension of the Netherlands Marriage Law to persons of the same sex has particular potential implications for Australia, because Australia (with Luxembourg) is a party with the Netherlands to the 1978 Hague Convention on Celebration and Recognition of Validity of Marriages, which entered into force in 1991, and obliges state parties (1) to ensure that their officials celebrate a marriage if the intending spouses either meet the substantive requirements of the internal law of Australia and one of them is an Australian national or resident, or each meets the substantive requirements of the internal law designated by Australian choice of law rules; and (2) to recognise marriages entered into in other states; relevantly, the Netherlands. [page 565]

24.17 As to the first, the substantive requirements of Australian law will not be satisfied in the case of persons of the same gender; and as, since 1986, Australian law governs marriages celebrated in Australia in both form and substance,41 the convention — assuming its application to same sex marriages — does not oblige Australia to provide an opportunity to enter such a marriage. As to the second — the obligation to recognise foreign marriages — the first question is whether the Convention obliges Australia to recognise a same-sex marriage celebrated in the Netherlands between two persons habitually resident in the Netherlands, or between a person habitually resident in Australia and one in the Netherlands. In this respect, the issue is whether the Convention applies to same-sex marriages at all. The Convention contains no definition of ‘marriage’. In 2002, Nygh suggested that there was not yet a sufficient ‘broad, international’ consensus that marriage included same-sex relationships for the Convention to apply to them, although recognising that that might change in the future so as to require reconsideration.42 The second question is whether, if there is such an obligation, Australia has given effect to it. The Convention is implemented in Australia by Pt VA of the Marriage Act, which since 2004 has made pellucidly clear that it does not apply to same-sex unions, and it is to Pt VA (not the convention) that the courts must primarily look.43 Under its provisions, Australian courts will not recognise foreign same-sex marriages, even if valid in the place of celebration, and even if that places Australia in breach of its treaty obligations. Thus, for example, there would be no legal impediment to a member of a Dutch same-sex marriage subsequently entering into a heterosexual marriage in Australia, even if the same-sex marriage had not been dissolved under Dutch law. (There may, however, be some more limited forms of recognition of the consequences of the foreign same-sex marriage or union. If, for instance, a Dutch partner died domiciled in the Netherlands, leaving moveable assets in Australia, the surviving partner could rely on Dutch law to claim his or her inheritance rights.)44 24.18 Somewhat different issues are raised by relationships in which one partner has undergone sexual re-assignment by means of surgery or hormone administration — often described as a transsexual or transgendered person. The partners are of the same sex genetically, but of different genders. In AttorneyGeneral v Otahuhu Family Court,45 the New Zealand High Court held that there was no lawful impediment to a transgendered person marrying in New Zealand as a member of his or her adopted sex. Using the classic quotation from Hyde v Hyde, Ellis J reiterated that marriage is

[page 566] the union of a man and a woman,46 but held that there was no reason to use a genetic definition of ‘man’ and ‘woman’ rather than a somatic one (that is, one that focuses on the physical conformation of the person).47 In the United Kingdom, the House of Lords has held that non-recognition of gender reassignment for the purposes of marriage was incompatible with the European Convention on Human Rights.48 24.19 In Australia, the validity of such a marriage has been upheld at first instance49 and affirmed on appeal. In Attorney-General v Kevin,50 the Full Court of the Family Court of Australia held that, for the purpose of the definition of marriage in the Marriage Act, the ordinary meaning of ‘man’ included a postoperative female-to male transsexual, pointing out that marriage was a constitutional term the meaning of which had never been finally determined by the High Court; that the words ‘marriage’ and ‘man’ were not technical terms and should be given their ordinary contemporary meaning; and that there had been a change in the essential nature of marriage, it having become a secularised institution in Australian society, so that its historical Christian origins were of limited relevance and procreation was no longer a principal or defining purpose. 24.20 While the Australian legislation provides that marriage must be between a man and a woman, it contains no definition of ‘man’ and ‘woman’.51 In the light of Attorney-General v Kevin, there can be no reason of Australian public policy to deny effect to the acceptance by the lex loci celebrationis of the newly assigned gender of the transgendered partner for purposes of the validity of marriage. It follows that Australian courts will recognise a foreign marriage, lawfully undertaken in the place of the marriage, of a transgendered person.

No Potential for an Additional Spouse: Polygamous Marriages The nature of polygamous marriage 24.21 Monogamy is not a universal condition of marriage. Many jurisdictions permit a plurality of wives.52 An Australian court understands by a polygamous marriage a relationship that exists where the law governing the relationship

permits, and gives recognition to, the taking of additional spouses and concubines. It matters [page 567] not that only one woman can have the official status of wife if the law tolerates the existence of concubines, affords them certain rights and recognises their children as legitimate.53 24.22 The crucial factor is the potentiality of taking more than one wife under the law determining the nature of the relationship. It may be the case — as it has been in virtually all the cases of polygamous marriages that have arisen before common law courts — that the husband has in fact taken only one wife, and has no intention of taking any additional spouse. Yet, if the potentiality of taking an additional wife or wives exists under the relevant law, the marriage is treated as polygamous, the husband’s conduct and intention notwithstanding.54 24.23 At times it may be difficult to determine whether a given marriage is polygamous or monogamous in character. Since Australian law favours monogamous marriage, the courts have been prepared to extend the common law rule which favours upholding, as far as possible, an alleged marital relationship, to include a presumption in favour of a monogamous relationship. As Sugerman J said in Ng Ping On v Ng Choy Fung Kam55 the presumption is: … in favour of Christian marriage where intention to marry in the sense at least of a permanent union is established, where on the evidence the character of the marriage in another respect — monogamous or potentially polygamous — is left completely equivocal, and where, moving into the sphere of another presumption, the subsequent events of cohabitation and repute are consistent with a monogamous, rather than a polygamous, union.

What law determines the nature of the marriage? 24.24 Whether a particular marriage is polygamous or monogamous in character has traditionally been considered to depend on the nature of the marriage contract. In this view, a marriage will be considered polygamous if the parties celebrate the marriage in a form appropriate to polygamy in a country the law of which permits polygamy.56 In other words, the lex loci celebrationis determines the character of the marriage. 24.25 The alternative view is that the classification of the marriage should be

referred to the law of the intended matrimonial home.57 This would mean that a marriage celebrated in Australia under the Marriage Act between a Muslim domiciled in [page 568] Pakistan and an Australian woman would be considered monogamous if the parties intended to live in Australia, but polygamous if they intended to live in Pakistan. 24.26 The weight of authority plainly favours the lex loci celebrationis. In Khan v Khan,58 an Australian woman went to Pakistan for the purpose of marrying a man domiciled in that country. The marriage took place there according to Muslim ceremony. A few years later, the parties came to and settled in Australia. Gowans J had no doubt that the marriage was polygamous in nature by reference to the effect of the ceremony under the law of Pakistan, and did not consider it necessary to inquire whether the spouses had already, at the time of the marriage, formed an intention to establish their future matrimonial home in Australia. 24.27 In Qureshi v Qureshi,59 the parties were both Muslims domiciled in countries that permitted polygamy. They married in a registry office in London. Sir Jocelyn Simon P said that the marriage ‘having taken place in England, where monogamy is the rule, must be regarded as monogamous for the purpose of invoking the jurisdiction of the court’.60 In Hassan v Hassan,61 a New Zealand woman married an Egyptian at the Egyptian consulate in Athens in accordance with Muslim law. The parties afterwards went to live in New Zealand. Somers J held that the marriage was polygamous on the basis that by the law of Greece — the law of the place of celebration — the marriage at the consulate was regarded as an effective Muslim marriage.62 24.28 The lex loci celebrationis must be preferred so far as the initial character of the marriage is concerned. First, this would accord with the assumption of virtually all judges for the last 100 years. The only explicit judicial support for the alternative view is to be found in some remarks made by way of obiter dicta by Denning LJ in Kenward v Kenward.63 Secondly, it affords the most sensible method of doing justice to the parties in accordance with the reasonable assumptions and expectations of each. The typical setting in which the issue arises — as illustrated by many of the relevant decisions — is a marriage entered

into by a local woman with a foreigner domiciled abroad. Even if the woman were determined at the time of the marriage to follow her husband abroad, she would reasonably assume that they expected to enjoy the marital status recognised and provided by their local (monogamous) law. To be told that a church wedding or a registry office ceremony created a polygamous relationship — just because the parties intended to reside in a country in which polygamy was permitted — would be a great surprise. Thirdly, in some jurisdictions, the form of the ceremony is the sole determinant of the nature of the marriage,64 and [page 569] in most countries where the law permits polygamy, polygamy and monogamy exist side by side;65 in such cases, a reference to the law of the place of intended domicile would leave the question unresolved. 24.29 A polygamous marriage celebrated in Australia66 in a ceremony that does not purport to comply with the Marriage Act is a complete nullity so far as Australian law is concerned.67 Whether such a ceremony would constitute a ‘form or ceremony of marriage’ for the purpose of a prosecution under Pt VII of the Act is an open question.68

The time at which the nature of the marriage is determined 24.30 At one time it was thought that a marriage was characterised immutably as at its inception.69 But in more recent years it has been conceded that a polygamous relationship can be converted into a monogamous one. In Cheni v Cheni70 the husband and wife were, at the time of their marriage, Jews domiciled in Egypt. The law of Egypt as applicable to Jews permitted the taking of a second wife, but only in the case of a husband whose marriage was barren after 10 years and even then only with the approval of a Jewish religious tribunal. In the particular instance, a child was born to the spouses within ten years. Sir Jocelyn Simon P held that, although the marriage was undoubtedly polygamous in character as at the time of celebration, it had become monogamous by the time of commencement of proceedings. His Lordship then held that he should characterise the marriage as it stood at the later date. 24.31 In this case, the change was from polygamy to monogamy and, as his

Lordship pointed out,71 our courts more readily favour monogamy, being the type of marriage that they fully recognise. Nonetheless, despite some ambiguous statements, his Lordship did not deny that a converse change could take place, indeed observing: ‘… there are no marriages which are not potentially polygamous, in the sense that they may be rendered so by a change of domicile and religion on the part of the spouses’. [page 570] 24.32 In what circumstances can the nature of the marriage be changed? Sir Jocelyn Simon P suggested that the parties could ‘by personal volition or act of state convert their marriages or have them converted into monogamous unions’. 24.33 There is today little doubt that a marriage can change its character where the lex loci celebrationis is changed or permits a change. Thus, where, as happened in India under the Hindu Marriages Act 1955, the law under which the marriage was originally celebrated is subsequently amended to provide that such marriages shall be treated as monogamous, Australian courts will recognise them as such.72 24.34 A similar situation arises where, as in Cheni v Cheni, the lex loci celebrationis provides the conditions upon which a second wife may be taken, and those conditions no longer apply. In other cases, the lex loci may permit the parties to change the nature of the marriage by a change of their religion. The unexercised possibility of conversion does not affect the nature of the marriage by itself,73 but once conversion takes place to a religion that permits polygamy (or vice versa), the nature of the marriage changes with the religion.74 24.35 In all these cases, the lex loci celebrationis itself permitted or effected a change in the nature of the marriage. More recently, however, it has been held that the nature of the marriage can change with the domicile of the spouses. In Ali v Ali 75 the husband, while domiciled in India, contracted a marriage in that country according to Muslim rites. Under the law of India, the marriage was polygamous. Subsequently, both spouses went to England, where the husband later acquired a domicile of choice. The marriage broke down, and the husband petitioned for divorce on the ground of desertion, while the wife counterpetitioned on grounds of adultery and cruelty. 24.36 Cumming-Bruce J held that the marriage, although polygamous in its

inception, had been converted into a monogamous relationship upon the husband acquiring a domicile of choice in a country that permitted its domiciliaries to enter only into monogamous marriages. His Lordship however held that he could not exercise jurisdiction in respect of alleged matrimonial offences that took place before the change in the nature of the marriage had occurred.76 Since this excluded the charges of desertion and cruelty, his Lordship granted the divorce on the wife’s petition on the ground of adultery, this event having taken place after the husband acquired an English domicile. 24.37 In reaching this conclusion, his Lordship relied mainly on the remarks made by Sir Jocelyn Simon P in Cheni v Cheni, referred to above, and the fact that the [page 571] Privy Council in Attorney-General for Ceylon v Reid77 had cited them with obvious approval. Further support may be found in the British Columbian case of Sara v Sara78 where Lord J held that an Indian couple who had married in polygamous form in India had converted their marriage to a monogamous one when they both emigrated to British Columbia. This approach, if accepted, would offer a just and reasonable solution to the problems presented by the arrival of migrants from countries permitting polygamy.79 24.38 However, English and Australian courts refused to grant matrimonial relief in respect of marriages that were polygamous in their inception, even though the parties had changed their domicile to England or Australia.80 The celebrated case of Hyde v Hyde is one example; a more recent one is the decision of Gowans J in Khan v Khan. In neither of these cases, however, was the particular point raised and, consequently, neither stands in the way of acceptance of the rule formulated by Cumming-Bruce J in Ali v Ali. 24.39 There is a further difficulty of principle. As has been argued above, the law of the domicile at the time of the marriage, whether actual or intended, should not be regarded as relevant to the characterisation of the marriage. It may then appear somewhat incongruous to allow the law of a later domicile to change the nature of the marriage. One commentator has suggested that a change of domicile should only have the effect of changing the nature of the marriage if this is permitted by the lex loci celebrationis.81 However, such an approach is unduly restrictive.

24.40 The underlying concept is that by adopting a domicile in a monogamous jurisdiction, or converting to a monogamous religion, the parties manifest a joint intention to change the basis of their marital relationship. On this basis, the nature of the marriage would change only if both parties joined in establishing the new matrimonial domicile or in the conversion.82 This is indeed what happened in Ali v Ali — where both spouses went to England — whereas in Hyde v Hyde only the husband went to England and the decisions can satisfactorily be reconciled and explained on that basis. In Hassan v Hassan,83 where the wife at all times was [page 572] domiciled in New Zealand and the husband in Egypt, it appears to have been accepted by Somers J that the (non-permanent) stay of the parties in New Zealand following the marriage did not convert it into a monogamous marriage.

Capacity to enter into a polygamous marriage At common law 24.41 The general assumption of English, and to a lesser extent Australian, authority, has been that, like capacity to enter into a marriage generally,84 capacity to enter into a polygamous marriage depends on the law of the antenuptial domicile of each spouse. The reasoning of Cumming-Bruce J in Ali v Ali is founded on the assumption that a person who changes domicile from India to England thereby loses the capacity to contract a polygamous marriage. In Crowe v Kader,85 D’Arcy J took the view that a young woman whose antenuptial domicile was Australian could not validly contract a polygamous marriage in Malaysia. A contrary view was taken in the British Columbian cases of Kaur v Ginder86 and Sara v Sara,87 and by Somers J in Hassan v Hassan,88 where the law of the place of celebration was applied. 24.42 In none of these cases was it necessary to consider the issue. That necessity arose in Radwan v Radwan (No 2).89 In that case a young woman domiciled in England married an Egyptian student in Paris in a Muslim ceremony conducted by the Egyptian Consul General in that city. The husband was at that time already married to another woman, whom he subsequently divorced. Shortly after the marriage, they established their matrimonial residence

in Egypt, as they had planned to do before the marriage. Until 1956, the parties lived in Egypt. In that year, as a result of the Suez war, they went to England where they resided together until 1970 when the wife instituted divorce proceedings. 24.43 Since the husband had acquired a domicile of choice in England about 1959, there was no doubt that according to Ali v Ali by 1970 the marriage would have acquired a monogamous character. The issue was the initial validity of the marriage itself. The ceremony was undoubtedly polygamous in character and, assuming, as his Lordship did, that French law permitted the Egyptian Consul General to celebrate such marriages between non-French nationals on French soil, the question was, did an English domiciled woman have the capacity to contract such a marriage at all? 24.44 Cumming-Bruce J held that she did. His Lordship treated the issue as one of capacity to marry, and reviewed the cases relating thereto.90 These cases, as they then stood, favoured the view that the law of the antenuptial domicile of each spouse governed capacity to marry, a view that had been acted upon by the United Kingdom Parliament when it enacted the Marriage (Enabling) Act 1960 s 1(3); the Matrimonial Proceedings (Polygamous Marriages) Act 1972 s 4; and the [page 573] Matrimonial Causes Act 1973 s 11(d). Yet Cumming-Bruce J held that this view was mistaken and that, at least so far as capacity to contract a polygamous marriage was concerned (distinguishing other questions affecting capacity, such as the capacity of minors and the law of affinity and of bigamy), the relevant law was that of the intended matrimonial home — in the instant case, Egypt.91 The decision has been widely criticised.92

Under the Marriage Act 24.45 Part VA of the Marriage Act, dealing with the recognition of foreign marriages, applies to all marriages celebrated outside Australia, whether before or after the commencement of the Marriage (Amendment) Act 1985 (Cth) on 7 April 1986.93 Formerly, it was thought that although polygamous marriages were not specifically included, they must be considered to be ‘marriages’ for the

purposes of Pt VA, even if at common law no matrimonial relief could have been granted in respect of them.94 However, it is now provided that in Pt VA ‘marriage’ has the statutory meaning and accordingly is limited to monogamous marriages.95 The 2004 amendments to the Marriage Act and in particular the express incorporation of the definition in Pt VA now have the consequence that a polygamous marriage is not recognisable in Australia under Part VA.96 24.46 Under s 88C(1) of the Act, Pt VA applies to a marriage, both as to substance and as to form, which is recognised as valid by the local law of the country where the marriage was celebrated; or, if celebrated by, or in the presence of, a consular or diplomatic representative of another country, by the law of that other country (provided that the marriage is not prohibited by the local law).97 However, as polygamous marriages are now excluded from Pt VA, the common law is resurrected, and the capacity of a person who is not already married to enter into a polygamous marriage will be governed, not by the law indicated by s 88C(1)(a) or (b), but by the law of his or her antenuptial domicile. Thus, an unmarried person domiciled in Australia no longer has capacity to enter a potentially polygamous marriage in a country that permits polygamy.98 24.47 If a party to the ceremony is already married according to Australian law, polygamously or otherwise, a second de facto (as distinct from the first potentially) polygamous marriage, even if recognised as valid under the law of the place of celebration, will not be entitled to recognition, as he or she would be at the time [page 574] of that second marriage ‘a party to a marriage with some other person’.99 But such a marriage, if celebrated outside Australia, is still a ‘marriage’ for the purposes of matrimonial relief under the Family Law Act 1975 (Cth)100 and for the purposes of other laws such as inheritance or entitlement under statutes such as the Fatal Accidents Acts, to the extent that the common law rules of private international law treat such a marriage as valid for those purposes.101 However, a second polygamous marriage celebrated in Australia will be null and void for bigamy and, semble, so will be a polygamous marriage entered into by a party domiciled in Australia, whether as a remarrying male or first-marrying female.102

The standing of a polygamous marriage in Australia 24.48 Apart from specific statutory provisions, what effect does a polygamous marriage have in Australia? If this question had been asked a century ago the answer would have been simple. A marriage celebrated in a form appropriate to polygamy would be no marriage at all, or at least not a marriage that would ‘be clothed with the incidence of a marriage amongst us’.103 24.49 However, by the 1960s the position had so changed that in Western Australia Wolff CJ declared in Haque v Haque:104 A shrinking world and a broadening of ideas has compelled a new approach of tolerance and understanding of the religion, ethics, and sociological concepts of other countries. In as much as I do not consider there is any authoritative pronouncement in English law that a polygamous marriage is utterly invalid, I feel myself free to declare that such marriages will be accorded recognition by the law of this State although the divorce court would not grant adissolution.

24.50 It became accepted that an existing polygamous marriage would be recognised, so as to make a subsequent monogamous marriage void for bigamy. Thus, if an Indian Muslim, having already married a woman in India according to Muslim rites, which marriage remained undissolved, were to come to Australia and marry another woman under the Marriage Act, the second marriage would be liable to annulment under s 23B(1)(a) of the Marriage Act on the ground that the husband was ‘at the time of the marriage, lawfully married to some other person’.105 Whether the man would have committed the criminal offence of bigamy under s 94(1) of the Marriage Act was an open question. In England it was initially held in R v Sarwan Singh106 that a polygamous marriage is not a valid first marriage for the purpose of founding a prosecution for bigamy. This decision was overruled by the Court of Appeal in R v Sagoo,107 where it was held that a person whose initially [page 575] polygamous first marriage had been converted into a monogamous marriage by the time of the second ceremony of marriage, had committed the criminal offence of bigamy; but this still leaves open the case of a person whose first marriage remains polygamous in nature at the time of the second ceremony. In principle no distinction should be drawn between civil and criminal bigamy.108 24.51 A polygamous marriage has also been recognised for other purposes. In

Imam Din v National Assistance Board,109 a woman whom the defendant had married in Pakistan according to Muslim rites whilst he had already one wife living, was recognised as his wife and their children as his legitimate children for the purposes of the National Assistance Act 1948 (United Kingdom), which imposed upon a man the duty to maintain his wife and children. In Mohamed v Knott110 the Divisional Court of Queen’s Bench recognised a 13-year-old Nigerian girl, who had entered into a polygamous marriage in her own country, as a married woman so as to take her out of the protection of the Children and Young Persons Act 1933 (United Kingdom). In so holding the Divisional Court specifically approved the statement that appeared in the 7th edition of Dicey,111 that a valid polygamous marriage must be recognised in England as a valid marriage unless there is some strong reason to the contrary. 24.52 This meant that children born of a marriage recognised as a valid polygamous marriage by the law of their father’s domicile would be recognised as legitimate in Australia,112 and that the wife or wives of a deceased polygamist should be recognised as the next of kin of the deceased.113 It followed that matrimonial property rights derived from a polygamous marriage under the relevant law — whether by virtue of a contract or by virtue of the general law — could be enforced in the forum114 in proceedings under the Married Women’s Property Acts115 and under family provision legislation.116 Even legislation which referred to ‘wife’ in the singular only may be interpreted so as to include the situation of a man who has in fact more than one wife.117 24.53 However, it is doubtful that this approach survives the 2004 amendments. Although there is no express prohibition on the recognition of a polygamous marriage (as there is for a same-sex marriage118 ) the incorporation of the statutory definition into Pt VA of the Marriage Act has the effect that a polygamous marriage is outside the concept of marriage for the purposes of recognition, subject to specific exceptions for the purposes of other Commonwealth and state laws that provide [page 576] for recognition of marriages, or unions in the nature of marriage, for their own particular purposes.119

Polygamy and matrimonial relief

24.54 Hyde v Hyde established the principle, so far as the relationship between the spouses to a polygamous marriage is concerned, ‘that as between each other they are not entitled to the remedies, the adjudication or the relief of the matrimonial law of England’.120 Any hope that ‘the winds of change’ might have dispelled this attitude were dashed by the Court of Appeal in Sowa v Sowa,121 where this principle was applied to deny a deserted wife the protection of maintenance legislation. In Australia, the principle in Hyde v Hyde was applied in Khan v Khan.122 24.55 However, this common law rule has been abolished in Australia by s 6 of the Family Law Act 1975 (Cth), which provides: For the purposes of proceedings under this Act, a union in the nature of a marriage which is, or has at any time been, polygamous, being a union entered into in a place outside Australia, shall be deemed to be a marriage.

24.56 This provision applies for the purposes of all proceedings under the Act, including dissolution, annulment, maintenance, custody and property rights. It therefore effectively abrogates the common law position in Australia and means that matrimonial relief is available in Australia in respect of a polygamous marriage. Relief under the Family Law Act may be granted even in respect of a void polygamous marriage.123

Unlimited in Duration 24.57 A legal system that recognised ‘marriages’ limited in duration of time would be exceptional, if one exists at all. No doubt our courts would treat such an arrangement as nothing more than concubinage. However, it is immaterial that under the lex loci celebrationis the marriage can be dissolved with relative ease. It would be an invidious task for an Australian court to investigate and express its approval or disapproval of the divorce laws of other countries. This issue was addressed by the English Court of Appeal in Nachimson v Nachimson124 where the parties had married in Russia while they were both domiciled there. At that time Russian law permitted dissolution of the marriage by unilateral repudiation, subject to compliance with [page 577] certain formalities. The Court of Appeal unanimously recognised the marriage as

a valid monogamous marriage. As Lawrence LJ explained:125 … it is contrary to the generally recognised rules of private international law that our courts should refuse to recognise a marriage had in a foreign country conforming in all respects to the law of that country and to our conception of a Christian marriage merely because under the laws for the time being in force in that country the facilities for divorce happened to be far greater than in England and such as would probably not commend themselves to most English people.

_________________________ 1.

Attorney-General v Kevin (2003) 30 Fam LR 1.

2.

Cf in the context of the power to make laws with respect to aliens, Re Patterson (2001) 207 CLR 391.

3.

Marriage Act 1961 (Cth) s 5. This was introduced primarily for the purpose of excluding same-sex unions from the concept of ‘marriage’.

4.

Family Law Act 1975 (Cth) s 43(1)(a).

5.

(1866) LR 1 P&D 130, 133; Wilkinson v Kitzinger (Same-sex marriage) [2006] EWHC 2022 Fam; (United Kingdom) Matrimonial Causes Act, s 11 (United Kingdom) (which, however, will be amended by the Marriage (Same Sex Couples) Bill: see 24.9).

6.

Kassim v Kassim [1962] P 224.

7.

Ng Ping On v Ng Choy Fung Kam [1963] SR (NSW) 782, 783 per Sugerman J.

8.

Corbett v Corbett (orse Ashley) [1971] P 83, 105 per Ormrod J. See further, A Dickey, Family Law, 3rd ed, LBC Information Services, Sydney, 1997.

9.

For a survey of the position in Australia, see Kirby, ‘Same Sex Relationships — Some Australian Developments’ (1999) 19 Aust Bar Rev 4, and Neilsen, M.A. (2012) Same Sex Marriage, Parliament of Australia

10. See Nygh, ‘Homosexual Partnerships in Sweden’ (1997) 11 AJFL 11. 11. See Forder, ‘To Marry or not to Marry: that is the Question’ in The International Survey of Family Law, Family Law, Bristol, 2001, pp 301–4; Nygh, ‘The Consequences for Australia of the New Netherlands Law Permitting Same Gender Marriages’ (2002) 16 AJFL 139. 12. Schalk and Kopf v Austria Merits, App no 30141/04; IHRL 1883 (ECHR 2010). 13. The Ontario Court of Appeal upheld the recognition of same-sex marriages by reference to a guarantee of equality in the Canadian Charter of Rights and Freedoms: Halpern v Canada (Attorney-General) (2003) 225 DLR (4th) 529. The Supreme Court of Canada upheld the ability of the Dominion Parliament to legislate for same-sex marriage: Reference re Same-Sex Marriage (2004) 246 DLR (4th) 193; and the Parliament subsequently did so: Civil Marriage Act 2005 (Can). 14. Civil Union Act 2006 (SA). See Minister of Home Affairs v Fourie (South African Constitutional Court, CCT60/04, 1 December 2005); G Gee and G C N Webber, ‘A Confused Court: Equivocations on Recognising Same-Sex Relationships in South Africa’ (2006) 69(5) MLR 831. 15. [2006] EWHC 2022 (Fam). 16. Civil Partnership Act s 215. 17. See note 15 above, at [55]. 18. See note 15 above, at [69] citing Smith & Grady v United Kingdom (2000) 29 EHRR 493. 19. See note 15 above, at [85].

20. See note 15 above, at [108]–[110]. 21. See note 15 above, at [122]. 22. Baehr v Lewin, 852 P 2d 44 (1993). 23. Baker v Vermont, 744 A 2d 864 (1999). In 2000, Vermont responded to Baker v Vermont, 744 A 2d 864 (Vt, 1999) — in which the Vermont Supreme Court held that it was a violation of the State Constitution to deny same-sex couples the benefits and protections afforded opposite-sex married couples — with legislation giving a same-sex civil union the same legal status as a heterosexual marriage (although not bearing the title of, or purporting to be, a ‘marriage’): 15 Vt St Ann, Ch 23 24. Goodridge v Department of Public Health, 798 NE 2d 941 (2003); Re Opinion of the Justices to the Senate, 802 NE 2d 565 (2004). 25. Re Marriage Cases 183 P 3d 384 (Cal 2008). 26. Kerrigan v Commissioner of Public Health, 289 Conn 135; 957 A 2d 407. 27. Varnum v Brien, 763 NW 2d 862 (2009) (Iowa SC), 763 N.W.2d 862 (2009), a unanimous decision of the Iowa Supreme Court holding that the state’s limitation of marriage to opposite-sex couples violated the equal protection clause of the Iowa Constitution. 28. Standhardt v Superior Court, ex rel County of Maricopa, 77 P 3d 451 (2003) (Arizona); Frandsen v County of Brevard, 800 So 2d 757 (2001), review denied, 828 So 2d 386 (2002) (Florida); Morrison v Sadler, 821 NE 2d 15 (2005) (Indiana); Lewis v Harris, 908 A 2d 196 (2006) (New Jersey); Hernandez v Robles, 855 NE 2d 1 (2006) (New York); Andersen v King County, 138 P 3d 963 (2006) (Washington). 29. Currently, same-sex marriage is permitted in Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington state, and Washington DC. The following states have constitutional definitions of marriage that preclude authorisation or recognition of same sex marriages: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Georgia, Hawaii, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Minnesota, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wisconsin. Civil unions are available in Hawaii, Nevada, New Jersey, Colorado (from 1 May 2013), Illinois, Oregon, and Rhode Island. In Wisconsin, where same sex marriage is banned by constitutional amendment, statute provides for limited rights upon recognition of a same sex couple. 30. Kerrigan v Commissioner of Public Health, 289 Conn 135; 957 A 2d 407. 31. Re Marriage Cases (2008) 43 Cal.4th 757, which held invalid “proposition 22”, a statute in identical terms to proposition 8, the subsequent constitutional amendment. 32. The constitutional amendment was held to be unconstitutional by the Federal District Court in Perry v Schwarzenegger, 704 F Supp 2d 921 at 940, and by the Ninth Circuit Court of Appeals in Perry v Brown, 671 F 3d 1052 (9th Cir 2012). The Court of Appeal judgment did not decide the broader question of the validity of such clauses, finding instead that “Proposition 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry” and that this was a “the deprivation of an existing right without a legitimate reason.” The appeal to the Supreme Court Hollingsworth v Perry 570 US (2013) was dismissed without addressing the substantive issues and the Court ordered the Court of Appeal to vacate its decision on the basis that the applicants lacked standing. This meant that the final decision was that of the court of first instance, which had held that the proposition was unconstitutional. 33. Jackson v Abercrombie 884 F Supp 2d 1065 (USDC), holding that the state legislature had the power to reserve marriage to opposite-sex couples. In the absence of a conclusive determination, challenges to state constitutional and legislative prohibitions are working their way through the courts. Presently Sevcik v Sandoval (2012) D.Nev and Jackson v Abercrombie, which respectively challenge Nevada’s

and Hawaii’s prohibitions, are before the Ninth Circuit Court of Appeals. 34. Defense of Marriage Act United States Government Printing Office. September 21, 1996. http://www.gpo.gov/fdsys/pkg/PLAW-104publ199/html/PLAW-104publ199.htm accessed 31 March 2013 35. United States v Winsdor 570 U.S; per Kennedy J; Ginsburg, Breyer, Sotomayor, and Kagan JJ concurring; Roberts CJ, Scalia, Alito and Thomas JJ dissenting. 36. Quilter v Attorney-General [1998] 1 NZLR 523. 37. See Donna Cooper, ‘Same Sex Couples, Marriage and Overseas Adoption’ (2004) 25(1) Qld Lawyer 7. 38. Civil Unions Act 2012 (ACT)(proposed to be repealed by the Marriage Equality Bill 2013, but this will be of doubtful constitutionality given the Commonwealth’s powers in respect of marriage); Relationships Act 2003 (Tas); Relationships Act 2008 (Vic). 39. See 24.28. 40. Marriage Act 1961 (Cth) s 88EA. 41. See note 40 above, s 23A(1)(a). 42. P Nygh, ‘The Consequences for Australia of the New Netherlands Law Permitting Same Gender Marriages’ (2002) 16 AJFL 139. 43. MHP v Director-General, Department of Community Services (2000) 26 Fam LR 601 at [56] per Ellis, Coleman and Flohm JJ. 44. In Haque v Haque (No 1) (1962) 108 CLR 230, the High Court sustained the claim of a polygamous ‘widow’ to Australian moveables under Indian Muslim law, even though her ‘marriage’ was not entitled to recognition in Australia. She was not allowed to claim a share in the deceased’s Australian immovables. Since the relationship would not be a ‘marriage’, the exclusionary provisions of s 88F of the Marriage Act would not apply. 45. [1995] 1 NZLR 603. 46. Marriage Act 1955 (NZ), in its then form, though it did not explicitly bar same-sex marriages, had been held not to permit them: see Quilter v Attorney-General [1998] 1 NZLR 523. 47. [1995] 1 NZLR 603, 607 per Ellis J. A similar approach has now been taken by the High Court of Australia, albeit in a different context, in AB v State of Western Australia (2011) 244 CLR 390; (2011) 281 ALR 694; (2011) 85 ALJR 1233; (2011) 46 Fam LR 1; [2011] HCA 42. 48. Bellinger v Bellinger [2003] UKHL 21; 2 AC 467; 2 All ER 593; 2 WLR 1174. 49. Re Kevin (validity of marriage of transsexual) [2001] FamCA 1074 per Chisholm J. 50. (2003) 30 Fam LR 1. 51. Re Kevin (validity of marriage of transsexual) [2001] FamCA 1074. 52. Some countries permit a plurality of husbands. Since polyandry is rare, the discussion that follows will treat polygamy as meaning polygyny. 53. Lee v Lau [1967] P 14. In Ng Ping On v Ng Choy Fung Kam [1963] SR (NSW) 782, the possibility of concubinage under Chinese law was held not to detract from the monogamous nature of the marriage. However, the case was decided in the absence of the extensive evidence available in Lee v Lau, which led the court there to conclude that the marriage was polygamous in character because of the recognised position of the concubine. The status was abolished in China in 1931 but persisted for some time in Hong Kong and other South East Asian countries. 54. Khan v Khan [1963] VR 203. 55. [1963] SR (NSW) 782 at 792.

56. Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Thomson, Sweet & Maxwell, London, 2012 (pp 964-7); Wolff, Private International Law, 2nd ed, Clarendon Press, Oxford, 1950, pp 319–20; Hyde v Hyde (1866) LR 1 P&D 130; Re Bethell (1888) 38 ChD 220; Risk v Risk [1951] P 50. 57. This view was formerly championed by Dr Cheshire, 7th ed, pp 266–70; see also Jackson, ‘Monogamous Polygamy’ (1966) 40 ALJ 148, 150. 58. [1963] VR 203; see also Crowe v Kader [1968] WAR 122. 59. [1972] Fam 173; [1971] 1 All ER 325. 60. See note 59 above, at 182. [1971] 1 All ER 325 at 331. 61. [1978] 1 NZLR 385. 62. See note 61 above, at 390. 63. [1951] P 124 at 145. These remarks were followed in Kenya in Re Howison’s Application [1959] E Af 568. However, in that case the polygamous marriage was also valid by the lex loci celebrationis. Since the application was one for habeas corpus of a child aged over 16 years the application was rejected without having to pass on the validity of the marriage. 64. The evidence in Kassim v Kassim [1962] P 224 showed that in Rhodesia a man of whatever religion could marry either by native custom (polygamously), or under the local Marriage Act with monogamous effect. A similar situation was shown to exist in Ghana in Sowa v Sowa [1961] P 70 at 80. 65. See Attorney-General for Ceylon v Reid [1965] AC 720. 66. Including Norfolk Island and, since 1 July 1992, the Indian Ocean Territories of Christmas Island and Cocos (Keeling) Islands: Marriage Act 1961 (Cth) s 8(1). 67. Previously it could have been given effect by an Australian court where under Australian conflict of laws rules the court was directed to apply as the law governing the principal matter in issue (for example, the succession to movable assets of the deceased) the law of a foreign country which does recognise the marriage, when that issue arose as a so-called ‘incidental question’: Haque v Haque (1962) 108 CLR 230, 249. But see now Marriage Act 1961 (Cth) s 88F. 68. The English decision in R v Bham [1966] 1 QB 159 might suggest that it does not. But the Australian legislation — which prohibits ‘going through a form or ceremony of marriage’ — is worded differently and may give rise to different considerations: see Nygh, ‘The Case of the Polygamous Migrant’ (1965) 6 Australian Lawyer 3, 7–8. 69. Hyde v Hyde (1866) LR 1 P&D 130; Mehta v Mehta [1945] 2 All ER 690. 70. [1965] P 85. 71. See note 70 above, at 90. But the possibility of a monogamous marriage becoming polygamous is doubted by Dicey, Morris & Collins (2012) at [17-158] (p 971). 72. Parkasho v Singh [1968] P 233; R v Sagoo [1975] 2 All ER 926. 73. Mehta v Mehta [1945] 2 All ER 690; distinguished in Parkasho v Singh [1968] P 233. 74. The Sinha Peerage Claim [1946] 1 All ER 348n; (1939) 171 LJ 350; AG for Ceylon v Reid [1965] AC 720. 75. [1968] P 564. 76. See for a discussion of the difficulties involved in this decision, Eekelaar, Davis and Webb, ‘The Dissolution of Initially Polygamous Marriages’ (1966) 15 ICLQ 1181; Cheshire, North and Fawcett, Private International Law, 14th ed, Oxford University Press, 2008, p 926, which describes the decision as being of ‘little more than academic interest’ given the demise of adultery as a ground for divorce. 77. [1965] AC 720 at 734.

78. (1962) 31 DLR (2d) 566. 79. This approach is now generally accepted in Canada: Re Quon (1969) 4 DLR (3d) 702; Re Hassan and Hassan (1976) 69 DLR (3d) 224. It is supported in principle by Cheshire, North and Fawcett (2008), pp 926–7; Dicey, Morris & Collins (2012), [17-153]-[17-157], (pp970-1); Graveson, Conflict of Laws, 7th ed, Sweet & Maxwell, London, 1974, p 250; Cowen in 12 ICLQ 1407 at 1407–11; Jackson, ‘Monogamous Polygamy’ (1966) 40 ALJ 148 at 155–6. To the contrary are Carter, (1963) 39 BYBIL 474, 478; Mendes da Costa, ‘Polygamous Marriages in the Conflict of Laws’ (1966) 44 Can Bar Rev 293, 307–8;Tolstoy,‘The Conversion of a Polygamous Union into a Monogamous Marriage’ (1968) 17 ICLQ 721. 80. In Australia, this has been overcome by the Family Law Act 1975 s 6, which provides that for the purposes of relief under that Act, ‘marriage’ includes a polygamous union in the nature of marriage entered into outside Australia: see 24.55. 81. Mendes da Costa, ‘Polygamous Marriages in the Conflict of Laws’ (1966) 44 Can Bar Rev 293 at 307– 8. 82. This was not the case in Attorney-General for Ceylon v Reid [1965] AC 720, where the wife remained a Christian. But that case concerned only the domestic law of Ceylon. See the note by Eekelaar Davis & Webb in (1966) 15 ICLQ 1181, 1184. 83. [1978] 1 NZLR 385. 84. See Chapter 25 below. 85. [1968] WAR 122 at 124; 12 FLR 357, 359. 86. (1958) 13 DLR (2d) 465. 87. (1962) 31 DLR (2d) 566. 88. [1978] 1 NZLR 385. 89. [1973] Fam 35. 90. For a discussion of these cases, see 25.24–25.40 below. 91. [1973] Fam 35, 54. 92. Dicey-Morris, 12th ed, p 702 (references to Radwan were removed from the 13th and subsequent editions); Cheshire North & Fawcett (2008), p 928; Graveson (1974), p 268. 93. Marriage Act 1961 (Cth) s 88C(1). 94. Mohamed v Knott [1969] 1 QB 1. 95. Marriage Act 1961 (Cth) s 88B(4), introduced by the 2004 amendments. 96. See A Dickey, ‘Recognition of Potentially Polygamous Marriages’ (2006) 80 ALJ 288. 97. Marriage Act 1961 (Cth) s 88C(1)(a) and (b). 98. Contrast the Private International Law (Miscellaneous Provisions) Act 1995 (United Kingdom) s 5, which specifically provides that a marriage outside England and Wales between unmarried persons is not void on the ground that it was entered into under a law that permits polygamous marriages and that one of the parties was domiciled in England and Wales. 99. Marriage Act 1961 (Cth) s 88D(2)(a). 100. Marriage Act, s 88E(3); Family Law Act 1975 (Cth) s 6; see 24.55. 101. Marriage Act, s 88E(l). 102. Crowe v Kader (1968) 12 FLR 357, 359 [1968] WAR 122 at 124 per D’Arcy J.

103. R v Byrne (1867) 6 SCR (NSW) 302. 104. [1963] WAR 15, 26. 105. See Baindail v Baindail [1946] P 122; Hashmi v Hashmi [1972] Fam 36. 106. [1962] 3 All ER 612. 107. [1975] QB 885. 108. See Cheshire, North and Fawcett (2008), pp 932–3. 109. [1967] 2 QB 213. 110. [1969] 1 QB 1. 111. Dicey, Conflict of Laws, 7th ed, p 278; see now Dicey, Morris & Collins (2012), rule 80 (p 979). 112. Hashmi v Hashmi [1972] Fam 36. 113. Coleman v Shang [1961] AC 481; Official Solicitor v Yemoh [2010] EWHC 3727 (Ch); [2011] 1 WLR 1450; Yew v Attorney-General for British Columbia [1924] 1 DLR 1166. 114. Shahnaz v Rizwan [1965] 1 QB 390; approved in Mohamed v Mohamed (2012) 47 Fam LR 683 at [48]; Qureshi v Qureshi [1972] Fam 173, 195. 115. Chaudhry v Chaudhry [1976] Fam 148. 116. Re Sehota dec’d [1978] 3 All ER 385; Official Solicitor v Yemoh [2010] EWHC 3727 (Ch); [2011] 1 WLR 1450. 117. Nabi v Heaton [1983] 1 WLR 626. 118. Marriage Act 1961 (Cth) s 88EA. 119. Marriage Act 1961 (Cth) s 88E(3), (4). Family Law Act 1975 (Cth) s 6 is an example: see 24.55. 120. (1866) LR 1 P&D 130 at 138. 121. [1961] P 70. 122. [1963] VR 203. 123. Family Law Act 1975 (Cth) s 71. See In the Marriage of Lengyel and Rasad (No 2) (1990) 14 Fam LR 198. 124. [1930] P 217. 125. See note 124 above, at 233.

[page 578]

Chapter 25

The Creation of a Valid Marriage Marriages Celebrated Abroad 25.1 The recognition of foreign marriages is now regulated by Pt VA of the Marriage Act 1961 (Cth) (the Marriage Act).1 But while Pt VA applies to marriages celebrated before as well as after the commencement of that Part, and in any foreign country whether or not a party to the Convention on Celebration and Recognition of the Validity of Marriages 1978 (the Hague Marriage Convention), the Act preserves the common law for recognition of marriages not required to be recognised by the Act; s 88E(1) provides that a marriage solemnised in a foreign country that would be recognised as valid under the common law rules of private international law, but is not required to be recognised under the other provisions of Pt VA, shall be recognised in Australia as valid.2 Further, the validity of marriages celebrated in Australia prior to 7 April 1986 involving one or more foreign parties is determined by reference to the common law rules of private international law. Moreover, the Act refers to some common law concepts, such as those of formal validity and essential validity. It is therefore helpful to commence with the common law position before turning to the position under the Act.

Recognition at Common Law Formal and essential validity 25.2 At common law, a distinction is drawn between questions concerning the formal validity, and those pertaining to the essential validity, of a marriage. Formal

[page 579] validity, which is concerned with such matters as the nature of the ceremony, who should be present and who should officiate, is governed by the law of the place of celebration.3 As to essential validity, which is concerned with questions such as capacity to marry and validity of consent, there has been controversy,4 but the prevailing view is that it is governed by the law of the antenuptial domicile of each of the intending spouses.5 25.3 Into which class falls the question of parental consent has been debated, but it is tolerably clear that it is to be considered a question of form.6 Most legal systems require the consent of parents to be given to a marriage contracted by a minor. English courts have always treated such consents, when required by English marriage legislation, as part of the formalities of the marriage. This is not surprising, since under modern legislation lack of parental consent does not affect the validity of the marriage. But English courts have also treated as matters of form foreign requirements of parental consent, even where lack of consent could affect the validity of the marriage under the foreign law, so as to hold valid marriages celebrated in England notwithstanding non-compliance with such requirements as to render the marriage liable to be annulled in the place of domicile.7 The Scottish Court of Session, in Bliersbach v McEwen,8 drew a distinction between impediments to marriage that rendered a marriage a total nullity, and those that did not; and held that lack of parental consent was in the second category — even where, as was the situation under French law in Ogden v Ogden,9 and under Dutch law in Bliersbach v McEwen, a marriage celebrated without consent was initially valid but liable to be annulled in the place of domicile. The position is a fortiori where, as in English and Australian law, lack of consent is not even a ground for subsequent annulment. The only potential exception, where non-compliance renders the marriage void ab initio and not merely voidable in the place of domicile, has not been encountered in courts of the Commonwealth. [page 580]

Formal validity: the lex loci celebrationis and exceptions

25.4 As has been noted, at common law the law of the place of celebration generally governs questions of formal validity.10 Thus, a ceremony celebrated by proxy will be recognised as valid if permitted by the law of the country where the ceremony took place.11 Identification of the locus celebrationis usually presents little difficulty, as both parties are typically present at the ceremony. A proxy marriage is celebrated in the place where the proxy participates in the ceremony, not the place of appointment of the proxy.12 25.5 There are three possible exceptions to this: the extraterritorial privilege of ambassadors to marry their nationals according to their own law; marriages celebrated on the high seas in accordance with the law of the flag; and the socalled ‘common law marriage’. The first of these is now regulated by the Hague Marriage Convention, which coincides with the common law position that such a marriage must be permitted by the law of the place of celebration.13 The exception relating to marriages on the high seas has some ancient support,14 but little practical relevance today. This leaves the so-called ‘common law marriage’; that is, a marriage celebrated according to the common law as it existed prior to the introduction of marriage legislation.15 In a strict sense, the term ‘common law marriage’ is incorrect, for, as Phillimore J remarked in Lazarewicz v Lazarewicz:16 A common law marriage, sometimes called an English common law marriage, might be more aptly termed a canon law marriage, since it derived its origin from the canon law at the time when the canon law was the common law of Western Europe.

25.6 The canon law of the Latin Christian Church before the Reformation considered only the mutual consents of the parties to take one another as husband and wife essential to the validity of a marriage. No specific form of ceremony was [page 581] required; nor was it necessary that a priest should be present.17 The Tam-etsi decree of the Council of Trent (1545–1563) required the presence of a priest, but the authority of that council was not recognised in England. 25.7 However, although there was no reason to suppose that the canon law of England until the Reformation differed in any substantial respect from that of the rest of the Latin Church, the House of Lords in 1843 decided, in R v Millis,18 that, by reason of an ancient Anglo-Saxon doom, English law, quite

independently of the Conciliar decree, required the presence of an episcopallyordained priest as an essential prerequisite to the validity of a marriage at common law. The historical validity of this conclusion is open to doubt.19 Nonetheless, as a result of this decision, a common law marriage celebrated in England or Ireland would have to be celebrated in the presence of an episcopally-ordained priest. 25.8 After the introduction of marriage legislation, commencing with Lord Hardwicke’s Act of 1753, the common law marriage was no longer relevant in English domestic law. However, that Act applied only in England, and consequently the common law regulated the marriages of the early settlers in Australia. The colonists brought with them only so much of the law of England as was applicable to the conditions of the colony, giving rise to the question whether the requirement for the presence of an episcopally-ordained priest was applicable in a colony where the Church of England was not an established church, and where priests were few and far between. In Catterall v Catterall,20 Dr Lushington took the view that — for those reasons — the requirement did not apply in New South Wales and, consequently, upheld the validity of a marriage celebrated in that colony before a Presbyterian minister. The Privy Council, in Penhas v Tan Soo Eng,21 reaffirmed Dr Lushington’s views, holding that the introduction of English law into the colony of Singapore included the common law marriage, but not the requirement for the presence of an episcopallyordained priest. 25.9 Despite Catterall v Catterall, until recently the balance of authority in Australia favoured the view that the presence of such a priest was required.22 Thus, in Hodgson v Stawell,23 a marriage celebrated in Van Diemen’s Land by a Presbyterian minister was not recognised in Victoria, for want of an episcopallyordained priest. In R v Byrne,24 a marriage before a British Consul in Fiji was denied recognition for similar reasons, and in Kuklycz v Kuklycz,25 Norris AJ denied recognition to a ceremony performed in wartime Ukraine in the presence of a German army officer, but [page 582] recognised a subsequent ceremony performed in the presence of a priest of the Russian Orthodox Church. However, in Hooshmand v Ghasmezadegan,26 Penny J of the Family Court of Western Australia recognised, as a common law

marriage, a marriage celebrated in a Baha’i ceremony in Iran, despite its not having been performed in the presence of an episcopally-ordained minister. Her Honour held that R v Millis was not applicable in cases where the presence of an episcopally-ordained priest was either impossible or inappropriate.27 Indeed, on the authority of Catterall and Penhas, it can be questioned whether that requirement was ever relevant in Australia. 25.10 Today, the common law marriage is practically irrelevant in Australian domestic law, in the light of the all-embracing provisions of the Marriage Act. However, it has for a long time been an established principle of our conflictual rules that a British subject may contract a valid marriage according to the common law in a foreign country in situations where compliance with the local law is impossible.28 25.11 In Savenis v Savenis,29 Mayo J in the Supreme Court of South Australia was, in 1950, confronted with a marriage celebrated in Germany in 1945 according to the rites of the Roman Catholic Church between two persons then domiciled in Lithuania. German law recognised only civil marriages as valid. However, at the time of the ceremony, circumstances in the relevant part of Germany were so chaotic that no registry was open, nor was any registrar available. His Honour pointed out that, if the parties had been British subjects, the marriage would have been recognised as a common law marriage. Should recognition be denied because at the time they were Lithuanians? Failing to find any conclusive authority on the point, his Honour concluded: If the matter be res integra, in circumstances where a marriage cannot be lawfully solemnised in accordance with the law of some territory owing to chaotic conditions brought about (inter alia) by warfare, and if the country in which the parties are, or were formerly, domiciled is itself overrun, the government being taken over by an alien power, then in such a case so far as our courts are concerned I think it would be proper to extend (if it be necessary) the area of legal recognition given to marriages that conform to our common law.

25.12 Savenis v Savenis was doubted in New South Wales by Myers J in Maksymec v Maksymec,30 but it was followed and applied by the English Court of Appeal in Taczanowska v Taczanowski,31 in which a Polish soldier, stationed in Italy as a member of the Allied occupation forces at the end of World War II, married a Polish woman in a religious ceremony in Rome. The ceremony did not comply with the forms that Italian law required for a valid marriage. The ceremony was also insufficient under Polish law — the law of their common nationality and domicile — to constitute a valid marriage. But as the husband was a member of a belligerent force in occupation of Italy, he was

[page 583] not subject to the binding force of Italian law, and the Court of Appeal recognised the marriage as conforming to the common law of England. 25.13 Hooshmand v Ghasmezadegan,32 referred to above, illustrates the continuing relevance of the common law marriage in this type of situation. The case concerned whether recognition should be afforded to a marriage celebrated in a Baha’i ceremony in Iran that was invalid under Iranian law — which neither recognised the Baha’i as a religious minority, nor made provision for civil marriage ceremonies. Because it was impossible for the parties to marry in compliance with Iranian law, the Family Court of Western Australia recognised the marriage as a valid common law marriage, despite the fact that no episcopally-ordained minister was present. 25.14 Consequently, Australian courts will recognise, as valid common law marriages, ceremonies conducted abroad such as would have created a valid marriage at common law, where the local law is inapplicable,33 irrespective of the nationality or the domicile of the parties at the time of the ceremony.34 25.15 This line of authority has not been uncontroversial. While all agree that in some circumstances the courts of the forum may hold an overseas marriage to be a valid common law marriage despite non-compliance with the local law, there is debate as to the circumstances in which the local law will be regarded as inapplicable, and the legal system to which reference should be made in such cases. 25.16 Taking the latter question first, it appears virtually settled that an Australian court will apply the lex fori; that is, its own concept of the common law marriage. It has been suggested from time to time that the lex domicilii would be a more logical choice, in cases where compliance with the local law is unnecessary or impossible.35 Indeed, in Savenis v Savenis,36 Mayo J would have preferred to apply the law of the domicile and turned to the lex fori only because application of the lex domicilii was impracticable. Shortly afterwards, Myers J — confronted in Maksymec v Maksymec37 with an almost identical situation involving a Polish man and a Ukrainian woman — preferred to uphold the marriage by reference to the husband’s domicile at the time of the marriage. But this approach creates problems where the lex domicilii coincides, as it often will, with the lex loci celebrationis, compliance with which is ex hypothesi impossible.

25.17 In Taczanowska v Taczanowski, the marriage was invalid not only according to the law of Italy — the locus celebrationis — but also by the law of Poland, where the parties were domiciled. The Court of Appeal unanimously rejected an argument that Polish law determined the matter. As Hodson LJ put it: [page 584] The ceremony of marriage here fulfils all the essentials of a common law marriage, and, in my opinion, should be recognised as such notwithstanding the foreign nationality and domicile of the parties at the date of the ceremony.38

Parker LJ, in a concurring judgment, went further and expressed the view that any reference to the lex domicilii would be superfluous.39 25.18 The preferable view, therefore, is that the lex fori applies, so that our courts will recognise a marriage if it complies with our notions of a common law marriage; that is, a marriage that would have been valid at common law, had it been celebrated in the forum before the introduction of marriage legislation. It would at least arguably follow that, if the presence of an episcopally-ordained priest was required in the forum at common law, then the same should be required of a marriage celebrated abroad.40 25.19 As to when it will be considered that the local law is not applicable, the question is still somewhat unsettled. Traditionally, two basic situations arise. The first is where a member of a military force in belligerent occupation of the locus celebrationis marries a person of the same or allied nationality.41The second is where there is an ‘insuperable difficulty’ in complying with the local law.42 25.20 As to the first, the term ‘military force in belligerent occupation’ has a somewhat extended meaning, and includes organisations set up in connection with and for the purposes of hostile occupation, or analogous thereto (such as an organised body of escaped or liberated prisoners of war) such as to constitute an enclave within which the local law has no application.43 Such parties are free, however, to submit themselves voluntarily to the local law. In Lazarewicz v Lazarewicz,44 where a Polish soldier stationed in Italy married an Italian woman in a religious ceremony not complying with Italian law, far from the place where he was ordinarily stationed, it was held that such a submission had taken place, and the marriage was void. 25.21 As to ‘insuperable difficulty’, this may occur in a variety of circumstances. Thus, it may happen that there are no local forms available to the

parties. For instance, two non-Catholics may wish to marry in a country that makes provision only for marriage between Roman Catholics,45 or two westerners may wish to marry in a country that provides only for polygamous marriage. An ‘insuperable difficulty’ may also arise where there are appropriate local forms, but the machinery for using them cannot be availed of due to war, natural disaster or inaccessibility. Most of the cases in which the question of common law marriage has been considered have concerned marriages celebrated in Germany immediately after the end of World [page 585] War II, when registry offices lay in ruins and civil officials had fled or been killed. In Katavic v Katavic,46 Lindenmayer J explained and reconciled the different results in two categories of cases which at first sight appeared to involve similar facts in this respect. The first category included Savenis v Savenis,47 Taczanowska v Taczanowski,48 Jaroszonek v Jaroszonek,49 Kochanski v Kochanska50 and Preston v Preston,51 in which marriages were upheld as valid common law marriages. The second category included Fokas v Fokas,52 Grzybowicz v Grzybowicz,53 Dukov v Dukov54 and Sadik v Owarowa,55 in which the contrary decision was reached. Lindenmayer J in Katavic explained (as was also pointed out by Hoare J in Dukov v Dukov) that whereas it was a rule of international law that parties were presumed to have submitted to the law of place of celebration, the special circumstances proved in evidence in the first category cases rebutted the presumption (so that resort could be had to a common law marriage), while in the second category cases the evidence did not do so. However, this theory of ‘submission’ is limited to marriages in an occupied country or where it is insuperably difficult to comply with the local law.56 25.22 The ‘insuperable difficulty’ must exist objectively. It is not sufficient that the parties do not wish to avail themselves of local forms, which are available and appropriate to the type of marriage into which they wish to enter. This issue arose in Milder v Milder,57 in which the parties — who had been born in Poland of Jewish descent — were married in 1945 in Breslau, Germany, in a Jewish ceremony, which did not comply with German law. The evidence was insufficient to establish that compliance with German law was impossible. Smith J rejected the submission that the parties could escape the application of the local law merely because, by reason of their belief that a Jewish ceremony was

sufficient, they did not intend to submit to German law.58 25.23 The view to which Smith J adhered, and which appears to be correct, is that the rule locus regit actum is peremptory.59 Although, in certain circumstances, the local law may be inapplicable to the parties, this does not depend on any subjective intention of the parties, but upon the existence of circumstances over which they, as individuals, have no control. Such circumstances are fairly closely confined, in the terms set out at the beginning of this discussion. The remarks made by Sir Jocelyn [page 586] Simon P in Merker v Merker60 and by the Court of Appeal in Preston v Preston61 indicate a similar attitude on the part of English courts. However, Smith J’s description of the circumstances in which the doctrine would apply was where ‘compliance with the law of the place of celebration is to be regarded as impossible, whether because there is no law in force there or because facilities are denied or because compliance would be against conscience’.62 On this authority, in Nygh & Casey,63 compliance with the local law in respect of the registration (as distinct from celebration) of marriage was excused, on the basis that the wife’s feminist principles did not permit her to register a marriage in Thailand as she would have to take her husband’s surname, and Milder was distinguished on the basis that the evidence did not establish conscientious objection to compliance with the local formalities, but only that they were believed to be unnecessary in the context that a Jewish ceremony had been performed. Faulks DCJ accepted that inquiry into the parties’ states of mind relating to the ceremony was inappropriate, but concluded that conscientious objection to registration attracted the doctrine. With respect, the distinction between celebration and registration for this purpose may be doubted.64

Essential validity: capacity and consent 25.24 At common law, the question of what law governs the essential validity of a marriage has been the subject of much contention.65 The prevailing view is that questions of essential validity are governed by the law of the antenuptial domicile of each of the intending spouses.66 The opposing view, which has in the past been argued by Cheshire, is that the capacity of the spouses should depend

on the law of the intended matrimonial home, which, in the absence of evidence to the contrary, is presumed to coincide with the domicile of the husband at the time of marriage.67 25.25 Recent English authority, though inconclusive, favours the dual antenuptial domicile test at least as the starting point. In Padolecchia v Padolecchia,68 a husband who at all material times retained his Italian domicile had married in that country in 1953. In 1958 he obtained a decree of divorce in Mexico by proxy. This decree was not entitled to recognition in Italy. In 1963 his employer transferred him to [page 587] Denmark, where he met a woman who was resident and domiciled in that country. In 1964 they married in London on a one-day visit there. It was the intention of the parties that Denmark be their matrimonial home. However, the marriage broke down and the husband petitioned the English court for a decree of nullity on the ground that his second marriage was bigamous. 25.26 Sir Jocelyn Simon P granted the decree of annulment, holding that the capacity of the husband to remarry must be determined by the law of his antenuptial domicile at the time of the second marriage. Since under the law of Italy he was still married to his first wife, he lacked the capacity to remarry. His Lordship did not consider it necessary to consider Danish law, although Denmark was the intended matrimonial home. The decision therefore favours the dual domicile theory. The same learned judge adhered to the dual domicile theory in Szechter (orse Karsov) v Szechter.69 25.27 An apparently inconsistent decision is Radwan v Radwan (No 2),70 in which Cumming-Bruce J upheld the capacity of a domiciled English woman to enter into a polygamous marriage by reference to Egyptian law, as the law of the intended matrimonial home. But his Lordship drew a (somewhat dubious) distinction between the capacity to enter into a polygamous marriage and other aspects of capacity to marry.71 Consequently, the decision does not detract from the conclusion that as a general principle the law of the antenuptial domicile of each spouse governs questions affecting the essential validity of a marriage. 25.28 In Perrini v Perrini,72 the factual situation was very similar to that in Padolecchia: a husband who was at all times domiciled in Italy first married an

American woman in Italy. That marriage was never consummated, and had been annulled by a decree of a court in New Jersey where the first wife had been ordinarily resident both before and after the marriage. Many years later, the husband married a domiciled Englishwoman in England. The parties lived at first in Italy, but some months after the marriage moved to England, where they established their matrimonial home. It was accepted that the New Jersey decree was not entitled to recognition under Italian law, and that at the time of the remarriage the husband could not by Italian law lawfully contract another marriage. Baker P nonetheless upheld the validity of the English marriage. His Lordship made passing reference to Radwan v Radwan (No 2), but appears to have based his conclusion not on the arguable fact that England was the intended matrimonial home, but rather on the proposition that the New Jersey decree was entitled to recognition in England, and that therefore the husband should be held capable of contracting an English marriage. 25.29 The discussion of the issue by the English Court of Appeal in Lawrence v Lawrence73 does not take the matter much further. In that case, the wife, who had been domiciled in Brazil prior to her remarriage, had obtained a divorce in Nevada from her first husband and had remarried the next day in that state. The [page 588] Nevada decree was not recognised in Brazil, and the wife therefore under the law of her antenuptial domicile lacked the capacity to remarry. The Nevada decree was however recognised in England, where the wife and her second husband established their matrimonial home. At first instance, Lincoln J recognised the marriage as valid by reference to English law, as the law of the intended matrimonial home. On appeal, the Court of Appeal agreed that the Nevada marriage was to be recognised in England. Ackner LJ, while acknowledging that the dual domicile theory was the traditional and prevalent view, declined to be drawn into the controversy, but, following Perrini v Perrini, held that recognition of the Nevada decree in England meant that the dissolved Brazilian marriage could no longer be a bar to the wife’s remarriage in England.74 Purchas LJ was critical of the intended matrimonial home as determinative of the validity of the remarriage, for the reason that it would frequently be uncertain where the parties would afterwards settle.75 His Lordship found the wife to have acquired a domicile in Nevada immediately prior to the remarriage; but this must respectfully be doubted. Sir David Cairns would

consider either the law of the premarital domicile, or the law of the intended matrimonial domicile as sufficient validation, thereby introducing a third theory.76 In Vervaeke v Smith,77 Lord Simon of Glaisdale suggested that a marriage falling foul of the dual domicile rule might be recognised as valid if the parties have capacity under the law of the country of their intended matrimonial domicile or under the law of the country with which the marriage has its most real and substantial connection. In Westminster City Council v C,78 the Court of Appeal held that the dual domicile rule was of general application, but that there were alternative bases for the recognition of a foreign marriage that would not be recognised on the application of the dual domicile rule, which had emerged as an expression of the general policy to recognise rather than to reject a marriage recognised as valid in some other sovereign state. 25.30 In Australia, in contrast — despite an early influential exception in the judgment of Molesworth J, in the Victorian case of In the Will of Swan79 where that learned judge said: ‘The validity of marriages as to ceremonial and so forth depends upon the law of the place of marriage, but as to the policy of the occurrence of such marriages and their results, should depend, I think, upon the laws of the country of the parties in which they are afterwards to live’ — modern authority consistently supports the dual domicile theory. 25.31 Thus, in Ungar v Ungar,80 Selby J had to consider the case of a man domiciled in Australia who had in 1965 married in Czechoslovakia his niece who was domiciled in that country. They afterwards made their matrimonial home in Australia. The marriage was at that time within the prohibited degrees under Australian law, but was permitted by Czech law. Selby J, applying the dual domicile rule, held that ‘the [page 589] respondent’s incapacity to marry his niece followed him … to Czechoslovakia and invalidated his marriage in that country’.81 25.32 In Stankus v Stankus,82 Bray CJ in the Supreme Court of South Australia had to deal with a petition of annulment of a marriage celebrated in Germany in 1950. It appears that the husband had been previously married in Lithuania in 1933. During the war, the husband had become separated from his wife and children, and after the war was unable to find out what had happened to them, and in 1950 went through a civil ceremony of marriage with another woman in

Gernmany. It subsequently emerged that the wife had gone to Canada, where she had died in 1965. The question was whether the marriage celebrated in 1950 was void for bigamy. The evidence was that by Lithuanian law a bigamous marriage was void, even if the party remarrying honestly believed at the time of the remarriage that the other spouse was dead; whereas it was suggested that, under German law, a remarriage in those circumstances might be valid. His Honour did not consider German law relevant to the question, but applied Lithuanian law and annulled the 1950 marriage on the ground that the husband’s capacity to marry depended on the law of his then domicile at the date of the marriage, and in 1950 he had not yet lost his Lithuanian domicile, according to which the marriage was void.83 25.33 In In the Marriage of Barriga (No 2),84 Baker J, after considering the competing theories and the relevant authorities — but unfortunately not Radwan v Radwan (No 2) or Perrini v Perrini — concluded that capacity to marry clearly depended on the law of the domicile of the parties at the time the marriage was contracted.85 In In the Marriage of Teves III & Campomayor,86 Lindenmayer J regarded that proposition as established in Australia. 25.34 The dual antenuptial domicile test requires that each party must, under the law of his or her antenuptial domicile, have the capacity to marry the other. If either lacks capacity under his or her own domiciliary law, the marriage is void. The incapacity need not be general; it can be an incapacity to marry the particular person, or a particular class of persons. Thus, if an Australian male aged 26 years were to marry a local girl aged 13 years in a foreign country where the marriageable age for girls is 12 years, the marriage will be void in Australia since, by Australian law, under the proper construction of ss 10 and 11 of the Marriage Act, the male lacks capacity to contract a marriage with a female under the age of 18 years.87 In other words, each party must, under his or her personal law, have capacity not merely to marry in general, but capacity to marry the particular person who is the other party to the ceremony. 25.35 The same applies to a marriage celebrated in Australia prior to 7 April 1986 where one or both parties lacks capacity under the law of his or her antenuptial domicile to marry the other, even though the marriage might be valid under [page 590]

Australian law. The learned editors of Dicey, Morris & Collins have suggested88 that there is an exception, to the following effect: A marriage celebrated in England between a person domiciled in England and a person domiciled abroad is not invalidated by any incapacity which, though existing under the foreign law does not exist in English law.

25.36 In other words, translating the proposition into Australian terms, if a party domiciled in Australia marries a foreigner in this country, any incapacity existing under the law of the foreigner’s domicile will be ignored. This is an endeavour to accommodate the otherwise anomalous decision of Sir James Hannen P in Sottomayor v De Barros (No 2),89 which his Lordship decided on the clearly incorrect basis that the validity of a marriage in all respects is governed by the lex loci celebrationis. In that case, a marriage celebrated in England between two first cousins, one of whom was domiciled in England and the other in Portugal, was upheld by reference to English law, even though under the law of Portugal such a marriage was void unless papal dispensation had been obtained. 25.37 The so-called rule in Sottomayor v De Barros (No 2) is almost universally disliked,90 although it was referred to as ‘declared law binding upon this court’ by Sir John Arnold P in the Court of Appeal in Vervaeke v Smith.91 In Australia, the High Court in Miller v Teale92 referred to the ‘dubious guidance’ of Sottomayor v De Barros (No 2) and suggested that its effect should be confined ‘to a condition imposed by the law of the domicile that a specified consent or consents should be given’. Though obiter, the remark was one in which all their Honours concurred, and is thus likely to be followed in Australia. Accordingly, an Australian court is likely to hold invalid a marriage celebrated prior to 7 April 1986 in Australia in accordance with Australian law in which one of the parties by virtue of his or her foreign personal law lacked capacity to marry the other, unless that lack of capacity could have been cured by a consent or dispensation under the relevant foreign law. 25.38 The dual domicile rule will have a validating effect where the marriage is void for lack of capacity under the lex loci celebrationis, but valid by the relevant personal laws of the spouses. There is little doubt that our courts will not take any notice of any disability under a foreign lex loci celebrationis. In The Will of Swan93 the deceased had gone through a ceremony of marriage in Scotland with his deceased wife’s niece. Under the law of Scotland, the marriage was void ab initio. Both parties,

[page 591] however, were domiciled in Victoria, where such a marriage was at that time merely voidable during the joint lifetimes of the parties. The husband died without the marriage having been annulled. Molesworth J held that the essential validity of the marriage should depend on the law of Victoria. The law of Scotland was irrelevant on a matter going to essential, as distinct from formal, validity. A similar conclusion was reached in Canada in Reed v Reed.94 The only suggestion to the contrary is to be found in Breen v Breen,95 in which Karminski J proceeded on the assumption that a valid marriage required capacity to contract the marriage in question under the lex loci celebrationis as well as under the personal law of the parties; but since he concluded that the parties had capacity to enter into the marriage in question under the lex loci celebrationis, the decision is of limited significance. 25.39 It is as yet uncertain whether an Australian court would uphold a marriage celebrated in Australia prior to 7 April 1986 between parties who lacked capacity to marry each other under Australian law, but had capacity under their personal laws. The editors of Dicey, Morris & Collins96 and Cheshire97 support a rule that would invalidate such marriages. This is certainly now so, under statute, in relation to marriages celebrated in Australia on or after 7 April 1986,98 and even before that date the marriageable age laid down in the Marriage Act s 11 applied to all marriages celebrated in Australia, whatever the parties’ domicile. It can also be inferred, from the Marriage Act s 55, that even before 1986 there was a general policy that marriages between persons who lack capacity under Australian law should not be permitted in this country. 25.40 Normally, the validity of a marriage is determined as at the time of its celebration.99 However, sometimes a marriage which is initially void can later become valid. An example is seen in Starkowski v Attorney-General100 where a couple went through a religious ceremony in Austria in 1945, when only civil ceremonies were recognised as creating lawful marriages in that country. A few months later, the law of Austria was changed to provide for the retrospective recognition of church weddings, provided that they were registered by the parish priest with the appropriate civil registrar. This was not done, in respect of the subject marriage, until 1949, by which time the parties had moved to England, separated in 1947, and the woman had begun to live with another man by whom she had a child in 1949. In 1950 she married this man in England. The House of Lords recognised the Austrian marriage as having been validated by Austrian

law in 1949, with effect from 1945. The validity of the first marriage fell to be determined as at the date of the second marriage, and though initially void, it had been validated in the meantime. Consequently, the second marriage was bigamous and under the law of England, as it then stood, the [page 592] child was born illegitimate. Had the woman remarried in 1948, when Austrian law still regarded the first marriage as void, that marriage would not have been entitled to recognition under s 88C(1), and a 1948 English marriage would have been valid.

Public policy 25.41 Recognition at common law is subject to the overriding control of public policy. Our courts will not give effect to any incapacity or prohibition that is imposed by reference to race, religion or any other classification which discriminates against a particular section of the population, and as a matter of public policy will, where appropriate, uphold the concept of marriage and find alternative ways of recognising particular marriages in cases where nonrecognition under the dual domicile rule would conflict with that policy.101 Conversely, in order to qualify for recognition in the forum, a marriage that is valid according to the law of a foreign state has to conform to fundamental Australian concepts of marriage, and our courts would not give effect to any capacity which would enable parties to establish a relationship that is universally regarded as incestuous.102 Similarly, the absence of intellectual capacity to enter into a marriage was so inconsistent with fundamental notions of marriage and offensive to the conscience of the English court that a marriage although valid in accordance with the law of Bangladesh where it was celebrated, would on public policy grounds not be recognised as a valid marriage in England.103

Recognition Under the Convention 25.42 For Australia, the law has now been simplified by the Marriage Act Pt VA, which was inserted into the Act by the Marriage Amendment Act 1985 (Cth), and came into operation on 7 April 1986. Its purpose was to give effect to

the Hague Convention on Celebration and Recognition of the Validity of Marriages of 1978104 (the Hague Marriage Convention), which entered into force on 1 May 1991, having been ratified by Australia, Luxembourg and the Netherlands.105 However, in Australia, it is the Act — in particular, Pt VA — and not the Convention that is the operative law and is applied by the courts. Part VA applies to marriages solemnised, whether before or after its commencement on 7 April 1986, in any foreign country, [page 593] whether or not a party to the convention.106 A ‘foreign country’ is a country outside Australia and its external territories.107 25.43 The validity of a foreign marriage may arise directly — for example, in proceedings for a declaration that a marriage is valid — or it may arise as a socalled ‘incidental question’, in proceedings not directly related to the marriage; for example, where in proceedings for damages under fatal accidents legislation there is an issue as to whether the plaintiff is the widow of the deceased. Although at common law there was uncertainty as to what choice of law rule applied to the so-called incidental question,108 it is now provided that the question of whether the marriage is recognised in Australia is to be determined in accordance with the provisions of Pt VA, even if that question arises as an incidental issue.109

The basic rule 25.44 Part VA establishes as the basic rule that a marriage solemnised in a foreign country is to be recognised as valid if, at the time of celebration, it was recognised as valid under the local law.110 By ‘local law’ is meant the law in force in the foreign country or in that part of the foreign country where the marriage was solemnised.111 Except where that local law refers the question of the validity of the marriage, through its own choice of law rules, to the law of a third country,112 this means that the lex loci celebrationis governs both formal and essential validity. 25.45 Moreover, a foreign marriage that is recognised as valid under the local law ‘at any time in relation to which the validity of the marriage falls to be determined’ will be recognised from and including that time, even though it was

not valid under the local law at the time of celebration.113 In order to be recognised as valid in Australia, the marriage must be recognised as valid according to the local law at the time when its validity falls to be determined for the purposes of the Australian proceedings, which is not necessarily the date of celebration. Thus, in Starkowski v Attorney-General,114 the date of the second marriage would have been ‘the time in relation to which the validity of the [first] marriage falls to be determined’; the question was whether when the woman remarried in 1950 she was a single woman, and that had to be determined in the light of Austrian law at that time, according to which she was married, the initially void marriage having been subsequently validated. 25.46 To ensure that this does not have the effect that a subsequent valid marriage celebrated by one of the parties in reliance on the invalidity of an initial overseas marriage may be invalidated by a later validation of the initial marriage under [page 594] the local law, it is provided that where, after the solemnisation of an initial (void) overseas marriage, either party enters into another (valid) marriage when the initial marriage was not recognised in Australia as valid, the initial marriage shall not at any time be recognised in Australia as valid.115

Application of and exceptions to the basic rule 25.47 A marriage which is prima facie entitled to recognition under s 88C(1) is nonetheless not to be recognised as valid: (a) if either of the parties was, at the time of marriage, validly married under Australian law to another person;116 (b) where one of the parties was at that time domiciled in Australia, if either of the parties was not of marriageable age under the Marriage Act, that is to say 18 years of age;117 (c) if the parties were within a prohibited relationship as defined by Australian law;118 or (d) if the marriage under Australian law would be void for lack of consent or mental incapacity.119

25.48 With the exception of marriages celebrated abroad between foreigners where one or both of the parties is not yet 18 years of age, these recognition rules simply apply Australian domestic rules to foreign marriages. In addition, where neither of the parties to the marriage was, at the time of the marriage, domiciled in Australia, the marriage is not to be recognised as valid ‘at any time while either party is under the age of 16 years’.120This has the consequence that, where neither party was at the time of marriage domiciled in Australia, the marriage will be recognised in Australia once both parties are at least 16 years of age, notwithstanding that one or both of them were not 16 at the time of the marriage. Further, an overseas marriage is not to be recognised as valid at any time while the marriage is voidable under the local law. The practical result is that in order to be recognised under the provisions of Pt VA, a marriage must be recognised as valid under the local law, and not essentially invalid according to Australian law, provided that a marriage between parties not domiciled in Australia will be recognised once both have attained 16 years of age, notwithstanding that either was less than 18 years of age at the time of the marriage. The grounds of invalidity that may preclude recognition are considered further at 25.53–25.68 below. 25.49 A proviso to Art 11 of the Convention qualifies the equivalent of s 88D(2) by providing that recognition may not be refused where the marriage has subsequently become valid by reason of the dissolution or annulment of a prior marriage. That [page 595] qualification is not reproduced in s 88D(2), and so does not form part of Australian law. Hence, a foreign marriage that was invalid at the time of the ceremony under the law of the place of celebration because one of the partners was already married, but which was subsequently validated under that law by dissolution or annulment of the prior marriage, will still not be recognised in Australia.121 25.50 Although s 88D(2) merely states that marriages falling within its terms ‘shall not be recognised as valid’, such marriages are ‘void marriages’ for the purposes of s 51 of the Family Law Act 1975 (Cth) (Family Law Act), and found an application for a decree of nullity.122 25.51 However, an overseas marriage that would be recognised as valid under

the common law rules of private international law, but is not otherwise required by Pt VA to be recognised as valid, is nonetheless to be recognised in Australia as valid — except in the case of a marriage of a person domiciled in Australia if either party was not 18 years of age.123 The practical effect of this is that overseas marriages which may be essentially invalid by the lex loci celebrationis are nonetheless to be recognised as valid in Australia if they are essentially valid according to the law of the antenuptial domiciles of the parties. 25.52 It is now appropriate to consider in greater detail the specific grounds of invalidity.

Bigamy 25.53 Under the common law rules of private international law, a marriage is bigamous if one of the parties was still married to another under the law of his or her antenuptial domicile, or if the marriage took place in Australia on or after 7 April 1986 and under Australian law one of the parties was still married to another.124 25.54 A marriage celebrated outside Australia is not entitled to recognition under Pt VA of the Marriage Act if one of the parties to the marriage was still married to another person, under the law of Australia.125 However, such a marriage may still be recognised as valid under the common law rules of private international law,126 if each of the parties had the capacity to marry the other under the law of their respective antenuptial domiciles.127 25.55 Usually, a conflict case involving bigamy arises out of the nonrecognition of a foreign divorce. This has in the past led to some strange results. In R v Brentwood Superintendent Registrar of Marriages; Ex parte Arias128 a man of Italian nationality, domiciled in Switzerland, had previously been married to a woman of Swiss nationality and domicile. This marriage had been dissolved by the decree of a Swiss court. The man then wished to remarry a Spanish national, and applied for a licence [page 596] to the Brentwood Superintendent Registrar of Marriages. Under Swiss law, capacity to marry is governed by the law of the nationality. Italian law at the time did not permit divorce to its citizens, whether in Italy or abroad, and

therefore considered the man to be incapable of remarrying. Consequently, Swiss law would not permit him to remarry, although his Swiss former wife was free to do so. Sachs LJ held that the capacity of the man to remarry should be determined by Swiss law as the law of his antenuptial domicile, including its reference to Italian law. Although the position arrived at by Swiss law was unattractive, in that it did not permit him to remarry despite his divorce, his Lordship held that an English court could not refuse to apply that law. Consequently, the Registrar had correctly refused to issue a licence to the applicant. 25.56 In Australia, this awkward result is overcome by the Family Law Act s 104(9), which provides that when a dissolution or annulment of marriage is entitled to recognition in Australia, the capacity of that person to remarry in accordance with the law of Australia shall not be affected by the fact that the validity of the dissolution or annulment is not recognised under the law of some other country. This gives statutory effect to the judgments in Perrini v Perrini129 and of Ackner LJ in Lawrence v Lawrence,130 discussed above. It is respectfully agreed, with Ackner LJ in Lawrence v Lawrence,131 that this provision is not to be interpreted as confined to marriages celebrated under Australian law, but as applying to the recognition under Australian law of the capacity to remarry, wherever that remarriage takes place.

Prohibited relationship 25.57 The general principles stated above in relation to bigamy apply.

Marriageable age 25.58 The Marriage Act, by s 10, applies the provisions of s 11 (which defines the marriageable age at 18 years) and of s 12 (which provides for authorisation of marriages for persons between the ages of 16 and 18 years), to all marriages celebrated in Australia (including marriages celebrated by diplomatic representatives of prescribed countries in Australia); to marriages celebrated abroad under Pt V of the Marriage Act; and to the marriage of a person domiciled in Australia wherever that marriage takes place.132 On its proper construction, the section prohibits not only a marriage between an Australian under age with a person of age, but also between an Australian of age with a foreigner who is of marriageable age under his or her personal law but is below the age prescribed by Australian law.133

25.59 In respect of marriages celebrated in Australia on or after 7 April 1986, Australian law applies, regardless of the domicile of the parties.134 The provisions of Pt VA adopt the same position in respect of overseas marriages, by denying [page 597] recognition to an overseas marriage to which either party is below age where one is an Australian domiciliary — both in implementing the Convention,135 and as an exception to the application of the common law rules of private international law.136 25.60 A marriage between foreigners celebrated abroad involving a very young person is, however, recognisable under s 88D(1) upon both parties attaining 16 years of age, and — subject to questions of public policy — may be entitled to recognition under s 88E(1).137

Consent 25.61 At common law, the prevailing rule has been that ‘no marriage is valid if by the law of either party’s domicile one party does not consent to marry the other’,138 although a contrary view was expressed by Lord Simon of Glaisdale, as he had then become, in Vervaeke v Smith, in favour of the lex loci celebrationis or preferably ‘the law of the territory with which the marriage has the most real and substantial connection’.139 25.62 However, in practice courts have — albeit more or less by default — applied the law of the forum to determine the validity of consent, because of want of evidence to prove that the foreign law was any different. In Szechter v Szechter140 it was alleged that a marriage celebrated in Poland between parties then domiciled in that country had been procured by duress. Sir Jocelyn Simon, in line with the dual domicile theory which he then favoured, held that he should apply Polish law; but because of insufficient evidence of Polish law had regard to the law of England on the basis of the presumption that foreign law is the same in the absence of evidence to the contrary. 25.63 A similar approach was adopted in similar circumstances by Lindenmayer J in In the Marriage of Teves III & Campomayor,141 where it was claimed that a marriage celebrated in the Philippines between parties then

domiciled in that country should be annulled because it had been procured by duress. That learned judge said that the essential validity of the marriage should be governed by the law of the antenuptial domicile — the Philippines142 — but because no evidence about the law of the Philippines had been produced, presumed that law to be the same as Australian law (meaning, in this context, the common law and not s 23B(1)(d) made applicable by s 88D(2)(d)). Under the common law in Australia, duress vitiates consent and renders marriage void [page 598] (or at least voidable). After considering what constituted duress under Australian law, his Honour concluded that there was sufficient evidence of duress to vitiate consent. 25.64 In Di Mento v Visalli,143 a wife petitioned for the annulment of a marriage celebrated in Sicily between parties, then domiciled in Italy, on the ground of duress. The circumstances were that a young girl had been abducted by a disappointed suitor and kept by force in his house for several days, leading to a situation where, according to Sicilian custom, the girl had to marry the abductor or face death at the hands of her father for the presumed dishonour of her family. There was no evidence presented as to whether such a marriage was valid under Italian law, although it appeared that, with the consent of the parties, an Italian court had pronounced a judicial separation. Larkins J annulled the marriage solely by reference to Australian law, relying on s 67(1) of the Matrimonial Causes Act 1959 (Cth),144 which provided: A decree may be made or refused, under this Part by reason of facts and circumstances notwithstanding that those facts and circumstances, or some of them, took place before the commencement of this Act or outside Australia.

25.65 This, he held, entitled the court to look at the facts and circumstances as they had occurred in Sicily and apply Australian law to them.145 His Honour did not, however, consider s 24(3) of the Matrimonial Causes Act,146 which directs the court to apply the law of a foreign country where it would be in accordance with common law rules of private international law to do so. This does not mean that the actual decision was wrong; in the absence of evidence of Italian law, his Honour was entitled to presume that it was the same as Australian law. Moreover, even if the evidence had established that Italian law did tolerate such a custom as existed in Sicily, it must be doubted that Australian public policy

would give effect to it, especially having regard to the definition of marriage in Australian law as a voluntary union. 25.66 Application of the correct principle is illustrated by In the Marriage of Suria,147 in which a marriage had been celebrated in the Philippines between a woman domiciled in Australia and a man domiciled in the Philippines. The wife alleged that the marriage was void by reason of lack of consent on her part due to fraud and duress. Frederico J held that Australian law, as the law of her antenuptial domicile, should determine the reality of the wife’s consent. 25.67 Part VA clarifies the position. If the marriage is celebrated in Australia on or after 7 April 1986, Australian law applies, regardless of the domicile of the parties.148 If the marriage has been celebrated outside Australia, recognition under s 88D is to be denied if either party did not give a real consent under Australian law;149 but if both parties were at the time of the marriage domiciled abroad, the marriage may be [page 599] recognised under the common law rules of private international law,150 if there was sufficient consent according to the law of the parties’ antenuptial domicile, subject to public policy. 25.68 A foreign marriage that is valid according to the local law must be recognised as valid, even if the parties mistakenly believe, and intend, that it not be valid in Australia.151 A mistake of this kind is not a mistake as to the nature of the ceremony, such as would invalidate the marriage under s 23B(1)(d)(ii) of the Marriage Act, but a mistake as to its effect. Mistake is not one of the grounds on which recognition can be denied, and a mistake of this kind is not sufficient to vitiate consent.152

Voidable marriages 25.69 Prior to 1976, a distinction was drawn between void and voidable marriages. That distinction was explained by Lord Greene MR in De Reneville v De Reneville:153 A void marriage is one that will be regarded by every court in any case in which the existence of the marriage is in issue as never having taken place and can be so treated by both parties to it without the necessity of any decree annulling it; a voidable marriage is one that will be regarded by every

court as a valid subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction. In England only the divorce court has that jurisdiction.

25.70 Although, in Australia, the Family Law Act abolished the category of voidable marriage, it survives in many overseas countries. Section 88D(4) of the Marriage Act prohibits the recognition under s 88D(1) of voidable marriages at any time whilst the marriage remains voidable under the local law. Such a marriage may, however, be entitled to recognition under s 88E(1). Where s 88E(1) applies, an Australian court — since it cannot grant an annulment of such a marriage — must recognise it as valid unless and until it is annulled abroad.154 If a party wishes to terminate that relationship, the only remedy under Australian law is an application for dissolution.

Public policy 25.71 There is no express reference in Pt VA of the Marriage Act to public policy as a ground for refusing recognition; this is unsurprising since the grounds upon which recognition can be denied under s 88D(2) coincide with the grounds upon which a domestic marriage can be annulled under Australian law. The question of public policy therefore remains relevant only where recognition under s 88E(1) in accordance with the common law rules of private international law is in question.

Proof of overseas marriage 25.72 A document purporting to be either the original or a certified copy of a certificate, entry or record of a marriage and purporting to have been issued by a [page 600] competent authority of the foreign country in which the marriage was celebrated (or under the law of which it was celebrated, in the case of a diplomatic marriage), is for all purposes prima facie evidence of the facts stated therein and of the validity of the marriage.155 25.73 Upon proof that a marriage ceremony has been duly performed, a presumption arises in favour of the validity of the marriage,156 including that the marriage is a monogamous one.157 The presumption is strengthened if there is

evidence of cohabitation and reputation of being married, and even in the absence of evidence of a marriage ceremony, a presumption of valid marriage arises from cohabitation and repute, which is rebuttable only by clear and cogent evidence: where parties have lived together for a significantly long period of time158 and there is evidence of reputation from others in favour of the marriage, the presumption arises and may be rebutted only by clear evidence that the parties were not married, and this is so notwithstanding the changed social circumstances regarding the prevalence of de facto relationships,159 although in the absence of evidence that a ceremony of marriage took place, substantial evidence of cohabitation and repute is required to trigger the presumption,160 and there must be some evidentiary foundation for the possibility that there has been a marriage ceremony of some kind at some time.161

Marriages in Australia Involving Foreign Parties 25.74 Marriages celebrated in Australia on or after 7 April 1986 are subject exclusively to Australian law as regards validity both as to form and as to essence.162 Marriages celebrated in Australia prior to that date involving one or more parties domiciled abroad depend for their validity on the common law rules of private international law, which have been discussed above.163 [page 601]

Diplomatic Marriages 25.75 There is a longstanding international custom by which foreign diplomats may perform marriages in the country of their posting, according to their own national law. This is recognised in the convention.

Within Australia 25.76 Part VA of the Marriage Act does not apply to marriages celebrated within Australia. However, Div 3 of Pt IV of the Marriage Act allows foreign diplomats of proclaimed countries to celebrate marriages in Australia according

to the law or custom of their countries.164 Section 55 lays down certain preconditions; namely, that neither of the parties is an Australian citizen; that each of the parties is of marriageable age according to Australian law; that the marriage is not bigamous (and by inference not de facto polygamous); and that the parties are not within a prohibited relationship according to Australian law.

In a foreign country under Australian law 25.77 Part VA of the Marriage Act does not apply to marriages celebrated abroad pursuant to Australian law. The validity of such marriages, if celebrated on or after 7 April 1986, is governed by Australian law, both as to substance and form.165 PartV of the Marriage Act formerly provided for the solemnisation of marriages in overseas countries by marriage officers appointed under the Act (normally, Australian diplomatic officers stationed abroad) to celebrate a marriage in the country of his or her posting, between parties at least one of whom was an Australian citizen. These provisions were repealed in 2002, as they had not been used since 1993.166 However, a chaplain still has authority under s 71(1) to celebrate a marriage overseas between parties, at least one of whom is a member of the Australian Defence Force. A marriage may not be celebrated under Pt V if a party to the marriage is not an Australian citizen or a member of the Australian Defence Force, unless the marriage will be recognised by the law of the country of the foreign spouse; or another ceremony of marriage that is recognised under that law has taken, or will take, place; or the minister has approved of the solemnisation of the marriage.167 In addition, the celebrant may refuse to celebrate a marriage on the ground that it would be inconsistent with international law or the comity of nations.168 25.78 No specific form is prescribed by the Act, provided the consent of the parties is expressed,169 and the ceremony takes place in the presence of the chaplain. In [page 602] addition, there are certain preliminary requirements such as the presence of witnesses, declarations as to impediments, birth certificates, and consents to the marriage of minors, which correspond to the preliminary requirements for a domestic marriage. Non-compliance with these preliminary requirements does

not affect the validity of the marriage.170 25.79 A marriage solemnised under Pt V is valid throughout Australia and its external territories.171 It will therefore be valid in Australia, even though void by the lex loci celebrationis.172 Furthermore, an annulment of a marriage celebrated under Pt V by a foreign court solely on the ground of non-compliance with the formalities prescribed by the lex loci celebrationis will not be recognised in Australia.173 25.80 The Marriage Act s 88 preserves the continued operation, as part of the law of Australia, of the Foreign Marriage Acts of 1892 and 1947 (IMP), other than s 22.174 This enables an Australian citizen to enter into a marriage abroad with a United Kingdom citizen before a British diplomat or consular official.175

In a foreign country pursuant to foreign law 25.81 The Governor General may, under the Marriage Act s 120(f), make provision for the recognition in Australia of marriages solemnised under a law in force in a place outside Australia which is similar to the provisions of Pt V. Under Pt VA of the Regulations, provision has been made for the recognition of marriages celebrated under the Foreign Marriages Acts 1892 and 1934 (United Kingdom), in so far as those marriages are not recognised in Australia by virtue of provisions that are part of the law of Australia; marriages celebrated under Pt VII of the Marriage Act 1955 (NZ); and marriages celebrated under the provisions of the Special Marriage Act 1954 (India) relating to marriages celebrated outside India and its territories — provided that the marriage in question is recognised as valid in the United Kingdom, New Zealand or India, as the case may be. 25.82 In addition, under Pt VA of the Marriage Act, provision is made for the recognition of marriages celebrated in a foreign country by, or in the presence of, a consular or diplomatic representative of another foreign country duly accredited there,176 provided that the marriage is recognised as valid under the law of the country represented and not prohibited by the local law.177 This means that if French citizens are married by the French Ambassador in Ottawa, an Australian court will recognise the marriage if it is valid by French law and not [page 603]

prohibited by Canadian law. Indeed, the parties need not be French citizens; if French law permits the marriage of foreigners in its Embassy, and Canadian law does not prohibit it, the marriage will be entitled to recognition under s 88D(1), subject to the exceptions set out in s 88D(2), (3) and (4) already discussed.178 The onus of proving that a marriage is prohibited by local law would presumably be borne by the party alleging invalidity. _________________________ 1.

See 25.42ff below.

2.

An important exception is created by the Migration Act 1958 (Cth) s 12, which excludes the operation of s 88E in determining the validity of foreign marriages for migration purposes. Recognition of the validity of foreign marriages for migration purposes must be determined solely by reference to the convention rules reproduced in s 88D. This applies regardless of whether the marriage was celebrated before or after 7 April 1986.

3.

Berthiaume v Dastous [1930] AC 79. This accords with the position under the Hague Marriage Convention: Article 2.

4.

See, for a more detailed discussion, P E Nygh, Conflict of Laws in Australia, 4th ed, Butterworths, Sydney 1984, pp 315–22.

5.

Dicey, Morris & Collins on the Conflict of Laws, 15th ed, 2012, Sweet & Maxwell, London, Rules 74, 75, (pp 939–64); a view shared by R H Graveson, Conflict of Laws, 7th ed, Sweet & Maxwell Ltd, London, 1974, p 257; J Westlake, Private International Law, 7th ed, Sweet & Maxwell Ltd, London, 1925, pp 57–8; J D Falconbridge, Selected Essays on the Conflict of Laws, 2nd ed, Canada Law Book Co, Ontario, 1954, pp 701–2; M Wolff, Private International Law, 2nd ed, Clarendon Press, Oxford, 1950, p 336; and B Inglis, Conflict of Laws, Oxford University Press, Oxford, 1959, pp 260–1. See also R v Brentwood Marriage Registrar [1968] 2 QB 956 at 968; Padolecchia v Padolecchia [1968] P 314 at 336; Szechter v Szechter [1971] P 286 at 295; Wilkinson v Kitzinger (No 2) [2006] EWHC 2022 (Fam), [2007] 1 FLR 183.

6.

Simonin v Mallac (1860) 2 Sw & Tr 67; Ogden v Ogden [1908] P 46; Bliersbach v McEwen [1959] SC 43; Lodge v Lodge (1963) 107 Sol Jo 437; Carter v Carter [1932] NZLR 1104.

7.

Dicey, Morris & Collins (2012) (note 5 above), Rule 73, paras 17-017–17-021 (pp 923–5); Simonin v Mallac (1860) 2 Sw & Tr 67; Ogden v Ogden [1908] P 46; Bliersbach v McEwen [1959] SC 43; see also Carter v Carter [1932] NZLR 1104; Chetti v Chetti [1909] P 67 at 81–7.

8.

1959 SC 43.

9.

[1908] P 46.

10. Dicey, Morris & Collins (2012) (note 5 above), Rule 73 (pp 917–8); Sottomayor v De Barros (No 1) (1877) 3 PD 1 (CA); Berthiaume v Dastous [1930] AC 79; Lazarewicz (otherwise Fadanelli) v Lazarewicz [1962] P 171 at 177, [1962] 2 All ER 5; Hamza v Minister for Justice, Equality and Law Reform [2010] IEHC 427. 11. Apt v Apt [1948] P 83 at 88 (CA); Ponticelli v Ponticelli [1958] P 204; Cristofaro v Cristofaro [1948] VLR 193; Della Torre v Della Torre [1955] SASR 278; Luder v Luder (1963) 4 FLR 292; Re Diab [1994] IRTA 4292; Hamza v Minister for Justice, Equality and Law Reform [2010] IEHC 427; In the Marriage of Barriga (No 2) (1981) FLC ¶91-088. 12. Apt v Apt [1948] P 83 (CA). In McCabe v McCabe [1994] 1 FLR 410 (EWCA), it was held that the parties were validly married, through the performance of a ceremony in Ghana at which neither party was present nor represented by a proxy, but the ceremony constituted a valid marriage under the law of

a tribe living in Ghana. See also Alfonso-Brown v Milwood [2006] EWHC 642 (Fam); Lester & Lester [2007] FamCA 186; (2007) 36 Fam LR 488. McCabe was applied in Scotland in MRA v NRK [2011] CSOH 101; 2011 SLT 873, to uphold as valid in accordance with the law of Pakistan as the lex loci celebrationis a marriage by telephone exchange of vows between a bride in Scotland and groom in Pakistan. 13. Radwan v Radwan (No 2) [1973] Fam 35 at 42–3, per Cumming-Bruce J. 14. See Cheshire, North and Fawcett, Private International Law, 14th ed, 2008, Oxford University Press, Oxford, pp 893–5; and A F Dickey, ‘Marriage on the High Seas’ (1988) 62 ALJ 716 at 717. 15. For a useful collection of the authorities on the various aspects of common law marriage, see In the Marriage of X (1983) 8 Fam LR 793 per Watson SJ. 16. [1962] P 171 at 177; 2 All ER 5. 17. J Jackson, The Formation and Annulment of Marriage, 2nd ed, Butterworths, London, 1969, pp 14–15. 18. (1843) 10 Cl & Fin 534. 19. See Merker v Merker [1963] P 283 at 293–4. 20. (1847) 1 Rob Eccl 580; considered in Quick v Quick [1953] VLR 224 at 228 per Herring CJ, 237 per Martin J, 238 per Smith J. 21. [1953] AC 304. See also Wolfenden v Wolfenden [1946] P 61; Apt v Apt [1948] P 83 at 86; [1947] 2 All ER 677. 22. See also Mendes da Costa, ‘The Formalities of Marriage in the Conflict of Laws — Australia’ (1959) 33 ALJ 72. 23. (1854) 1 VLT 51. 24. (1867) 6 SCR (NSW) 302. 25. [1972] VR 50. 26. (2000) FLC ¶93-044. 27. See note 26 at 87,684. 28. Ruding v Smith (1821) 2 Hag Con 371. 29. [1950] SASR 309. 30. (1954) 72 WN (NSW) 522. 31. [1957] P 301; 2 All ER 563. 32. (2000) FLC ¶93-044. 33. As to which, see 25.19–25.23 below. 34. Kochanski v Kochanska [1958] P 147; Merker v Merker [1963] P 283; Preston v Preston [1963] P 411; Jaroszonek v Jaroszonek [1962] SASR 157; Hooshmand v Ghasmezadegan (2000) FLC ¶93-044. 35. See Westlake (note 5 above), 1925, p 63; C. M. Schmitthoff, The English Conflict of Laws, 3rd ed, Stevens & Sons, London, 1954, p 322. 36. [1950] SASR 309 at 311. 37. (1954) 72 WN (NSW) 522. 38. [1957] P 301 at 327. 39. See note 38 at 331. 40. Kuklycz v Kuklycz [1972] VR 50, but see now Hooshmand v Ghasmezadegan (2000) FLC ¶93-044.

41. Taczanowska v Taczanowski [1957] P 301. 42. This term was first used by Lord Stowell in Ruding v Smith (1821) 2 Hag Con 371 at 391. 43. Kochanski v Kochanska [1958] P 147, as explained in Preston v Preston [1963] P 411; see also Merker v Merker [1963] P 283 at 295. 44. [1962] P 171. 45. As in Lord Cloncurry’s Case (1811), referred to in the Sussex Peerage Case (1844) 11 CL & Fin 85 at 92; a more recent analogy is Hooshmand v Ghasmezadegan (2000) FLC ¶93-044 (Baha’i couple seeking to marry in Iran, which does not make provision for Baha’i marriages). 46. (1977) 29 FLR 510; (1977) 3 Fam LR 11,507. 47. [1950] SASR 309. 48. [1957] P 301; 2 All ER 563. 49. [1962] SASR 157. 50. [1958] P 147. 51. [1963] P 411 at 436. 52. [1952] SASR 152. 53. (1963) 4 FLR 136. 54. (1968) 13 FLR 149. 55. (1975) TASSC, CCH Family Law and Practice, ¶10-950.99. 56. See Cheshire, North and Fawcett (2008) (note 14 above), pp 889–93; Merker v Merker [1963] P 283. 57. [1959] VR 95. 58. See also Fokas v Fokas [1952] SASR 152; Grzybowicz v Grzybowicz (1963) 4 FLR 136; [1963] SASR 62; Dukov v Dukov (1968) 13 FLR 149; In the Marriage of Katavic (1977) 29 FLR 510; (1977) 3 Fam LR 11,507. 59. In the Marriage of X (1983) 8 Fam LR 793. 60. [1963] P 283 at 295. 61. [1963] P 411 at 427, 435. 62. [1959] VR 95 at 98; cited with approval by the Full Court of the Family Court of Australia in In the marriage of Banh (1981) 6 Fam LR 643. 63. [2010] FamCA 145. 64. As it is by Dicey, Morris & Collins (2012) (note 5 above), p 926, n 61. 65. See, for a more detailed discussion, Nygh (1984) (note 4 above), pp 315–22. 66. Dicey, Morris & Collins (2012), Rules 74, 75; see also Graveson, 1974, p 257; Westlake, 1925, pp 57– 8; Falconbridge, 1954, pp 701–2; Wolff, 1950, p 336; and Inglis, 1959, pp 260–1 (for all references see note 5 above). See Mette v Mette (1859) 1 Sw & Tr 416; Brook v Brook (1861) 9 HLC 193; Sottomayor v De Barros (No 1) (1877) 3 PD 1; Re Paine [1940] Ch 46; Westminster City Council v C [2008] EWCA Civ 198; [2009] Fam 11. 67. G. C. Cheshire, Private International Law, 7th ed, Butterworths, 1965, pp 267–81. Cheshire, North and Fawcett (2008) (note 14 above), pp 896–903, now accept that the dual domicile theory is law. Cheshire’s original view was also shared by W W Cook, Logical and Legal Bases of the Conflict of Laws, Harvard University Press, Cambridge, 1942, p 448, and, with some qualifications, by Schmitthoff (note 35 above) (1954), p 312.

68. [1968] P 314. 69. [1971] P 286 at 295. 70. [1973] Fam 35. 71. See note 70 at 54; discussed at 24.42–24.44 above. 72. [1979] Fam 84. 73. [1985] Fam 106. 74. See note 73 at 122, 124–5. This is the statutory position in Australia, by operation of the Family Law Act 1975 (Cth) s 104(9). 75. See note 73 at 127. 76. See note 73 at 134. 77. [1983] 1 AC 145 at 165–6. 78. [2008] EWCA Civ 198; [2009] Fam 11, at [30]. 79. (1871) 2 VR (IE&M) 47 at 50. 80. [1967] 2 NSWR 618. 81. See note 80 at 624. 82. (1974) 9 SASR 20. 83. See note 82 at 24. 84. (1981) 7 Fam LR 909. 85. See note 84 at 913. 86. (1994) 18 Fam LR 844 at 851; applying Szechter and referring to the 5th edition of this work. 87. Pugh v Pugh [1951] P 482; Buciu v Sabau (1997) 22 Fam LR 75. 88. Dicey, Morris & Collins (2012) (note 5 above), para 17-062. 89. (1879) 5 PD 94. 90. Only Graveson (1974) (note 5 above), p 261 expresses unreserved approval. Dicey, Morris & Collins (2012) (note 5 above), para 17-061, describe the rule as anomalous and as giving to English private international law a national bias that ‘might be regarded as unfortunate’. Others reject it outright: Falconbridge (1954) (note 5 above), p 711; Westlake (1925) (note 5 above), p 62; P Webb and J Davis, Casebook on the Conflict of Laws New Zealand, Brookers, Auckland, 1970, p 228; in Scotland it was rejected in Lendrum v Chakravarti 1929 SC 96 at 102–3 per Lord Mackay; see also Cheshire, North and Fawcett (2008) (note 14 above), pp 904–6. 91. [1981] Fam 77 at 122; see also Vervaeke (formerly Messina) v Smith [1983] 1 AC 145; [1982] 2 All ER 144; [1982] 2 WLR 855. 92. (1954) 92 CLR 406 at 414; see also Cheshire, North and Fawcett (2008) (note 14 above), pp 905–6. 93. (1871) 2 VR (I E&M) 47. 94. (1969) 6 DLR (3d) 617. 95. [1964] P 144. 96. Dicey, Morris & Collins (2012) (note 5 above), para 17E-099 (limited to marriages celebrated in England). 97. Cheshire, North and Fawcett (2008) (note 14 above), p 907.

98. Marriage Act s 23A. 99. In the Marriage of X (1983) 8 Fam LR 793. 100. [1954] AC 155, distinguished in Pilinski v Pilinska [1955] 1 WLR 329 where there was no effective registration to validate the marriage retrospectively. 101. Scott v Attorney-General (1886) 11 PD 128; Sottomayor v De Barros (No 2) (1879) 5 PD 94 at 104; Chetti v Chetti [1909] P 67; Papadopoulos v Papadopoulos [1930] P 55 at 64; Cheni v Cheni [1965] P 85 at 98; Lundgren v O’Brien (No 2) [1921] VLR 361; Lepre v Lepre [1965] P 52 ; see also Vervaeke v Smith [1983] 1 AC 145 and Westminster City Council v C [2008] EWCA Civ 198; [2009] Fam 11. 102. Cheni v Cheni [1965] P 85 at 97. 103. Westminster City Council v C [2008] EWCA Civ 198; [2009] Fam 11. However, the dual domicile test would have produced the same result, as one of the parties was domiciled in England. 104. Marriage Act s 88A. 105. No other countries have ratified the convention since it came into force: see P Nygh, ‘The Hague Marriage Convention — A Sleeping Beauty?’ in E Pluribus Unum — Liber Amicorum, Georges A L Droz, 1996, Nijhoff, Massachusetts, p 253. It has been signed, but not ratified, by Egypt, Finland and Portugal. 106. Marriage Act s 88C. 107. Marriage Act s 88B(1). 108. See 15.27ff above. 109. Marriage Act s 88F. 110. Marriage Act ss 88C(1), 88D(1). 111. Marriage Act s 88B(1). 112. See M Neave, ‘The New Rules on Recognition of Foreign Marriages — Insomnia for Lawyers’ (1990) 4 AJFL 190. 113. Marriage Act s 88C(2)(a). 114. [1954] AC 155. 115. Marriage Act s 88D(5). 116. Marriage Act s 88D(2)(a); see Re Kalantarizadeh [1995] IRTA 5593. 117. Marriage Act s 88D(2)(b); see Re B (1983) 9 Fam LR 40; Buciu v Sabau (1997) 22 Fam LR 75. 118. Marriage Act s 88D(2)(c). 119. Marriage Act s 88D(2)(d); see In the Marriage of Teves III & Campomayor (1995) 18 Fam LR 844 (duress); Official Trustee in Bankruptcy v Edwards (1997) 21 Fam LR 829 (mistake as to the effect, as distinct from the nature, of the ceremony, is not a ground of invalidity). 120. Marriage Act s 88D(3). 121. Re Kalantarizadeh [1995] IRTA 5593. 122. In the Marriage of Teves III & Campomayor (1995) 18 Fam LR 844 at 849 per Lindenmayer J. 123. Marriage Act s 88E(1), (2). 124. Marriage Act ss 23A(1), 23B(1)(a). 125. Marriage Act s 88D(2)(a). 126. Marriage Act s 88E(1).

127. Schwebel v Ungar (1963) 42 DLR (2d) 622; and see 25.34 above. 128. [1968] 2 QB 956. 129. [1979] Fam 84. 130. [1985] Fam 106. 131. See note 130 at 124. 132. Re B (1983) 9 Fam LR 40. 133. Pugh v Pugh [1951] P 482; Buciu v Sabau (1997) 22 Fam LR 75; Re X (Children) (Parental Order) [2008] EWHC 3030 (Fam); [2009] Fam 71. 134. Marriage Act s 23A(1). 135. Marriage Act s 88D(2)(b). 136. Marriage Act s 88E(2). 137. Mohamed v Knott [1969] 1 QB 1. 138. Dicey, Morris & Collins (2012) (note 5 above), Rule 75 (p 959); Szechter v Szechter [1971] P 286 at 294–5 per Sir Jocelyn Simon P; Singh v Singh 2005 SLT 749. 139. [1983] 1 AC 145 at 165. 140. [1971] P 286. 141. (1995) 18 Fam LR 844 at 851. 142. Lindenmayer J also held that the marriage should be denied recognition because of s 88D(2)(d), and that it was therefore a void marriage for the purposes of the Family Law Act s 51, which provides the basis for an application for a nullity decree: see above at 25.50. In case that conclusion was incorrect, Lindenmayer J went on to consider the common law position in the alternative, applying s 88E: (1995) 18 Fam LR 844 at 850ff. 143. (1973) 1 ALR 351. 144. Now re-enacted as Family Law Act s 53. 145. See Grummett v Grummett (1966) 7 FLR 415. 146. Now re-enacted as Family Law Act s 42(2). 147. (1977) 3 Fam LR 11,541 at 11,544. 148. Family Law Act s 23A(1). 149. Marriage Act s 88D(2)(d), which defines the lack of consent as ‘not a real consent for a reason set out’ in s 23B(1)(d). That was the alternative basis for the decision in In the Marriage of Teves III & Campomayor (1995) 18 Fam LR 844: see above note 142. 150. Marriage Act s 88E(1). 151. Official Trustee in Bankruptcy v Edwards (1997) 21 Fam LR 829 per Simos J. 152. See note 151 at 833–6. 153. [1948] P 100 at 111. 154. In the Marriage of C and C (1998) 23 Fam LR 491 at 501–2 per Baker, Kay and Burton JJ. 155. Marriage Act s 88G. As to the meaning of ‘record’ and ‘competent authority’, see In the Marriage of Lengyel and Rasad (No 2) (1990) 14 Fam LR 198; Re Abdullahi Ali Gurey [2000] MRTA 43. 156. Axon v Axon (1937) 59 CLR 395 at 403, 404; Christofaro v Christofaro [1948] VLR 193; Jacombe v Jacombe (1961) 105 CLR 355 at 359; Danyluk v Danyluk [1964] WAR 124; Lester & Lester [2007]

FamCA 186; (2007) 36 Fam LR 488 at 496. 157. Ng Ping On v Ng Choy Fung Kam (1963) 63 SR(NSW) 782. 158. A v H [2009] EWHC 636 (Fam); [2010] 1 FLR 1 (short period of cohabitation insufficient to attract presumption). 159. Re Shepherd [1904] 1 Ch 456; Re Taylor, dec’d [1961] 1 WLR 9; 1 All ER 55; Jacombe v Jacombe (1961) 105 CLR 355 at 359; Sheludko v Sheludko []1972] VR 82; Re Pennington (No 2) [1978] VR 617; Solomon v Hatti (NSWCA, 10 February 1987, BC8701598); Lester & Lester [2007] FamCA 186; (2007) 36 Fam LR 488 at 496; Al-Saedy v Musawi [2010] EWHC 3293 (Fam); [2011] 2 FLR 287. 160. Lester & Lester [2007] FamCA 186; (2007) 36 Fam LR 488. 161. A-M v A-M (Divorce: Jurisdiction; Validity of Marriage) [2001] 2 FLR 6 (presumption arose where possibility of a valid polygamous marriage in an Islamic country of which wife had no knowledge was not excluded, notwithstanding that two alleged ceremonies of marriage were insufficient to create a valid marriage under English law); Lester & Lester [2007] FamCA 186; (2007) 36 Fam LR 488; AlSaedy v Musawi [2010] EWCH 3293 (Fam); [2011] 2 FLR 287. 162. Marriage Act s 23A(1)(a). 163. See 25.2–25.41 above. 164. The countries proclaimed are Belgium, Bulgaria, China, Czechoslovakia (dissolved upon the independence of Slovakia and the Czech Republic), Ethiopia, France, Japan, Republic of Korea, Philippines, Portugal, Spain, Thailand, Vietnam: Commonwealth Gazette No 78 of 7/9/1967 at 4994, 5008. 165. Marriage Act s 23A(1)(b). 166. Marriage Amendment Act 2002 (Cth). 167. Marriage Act s 78. 168. Marriage Act s 81. 169. Marriage Act s 72. 170. Marriage Act s 83. 171. Marriage Act s 73. 172. Hay v Northcote [1900] 2 Ch 262 (marriage celebrated in accordance with Consular Marriage Act 1849 (United Kingdom) held valid, notwithstanding annulment by courts of the domicile of the parties). 173. Family Law Act s 104(6). 174. Repealed in its application to Australia by the Marriage (Overseas) Act 1955 s 32. 175. For a description of the provisions, see Cheshire, North and Fawcett (2008) (note 14 above), pp 885–7, but note that the repeal (for Australian purposes) of s 22 means that members of the Australian Defence Force cannot be married under Australian law by British Army Chaplains. 176. Marriage Act s 88B(2). 177. Marriage Act s 88C(1)(b). 178. See 25.47–25.52 above.

[page 604]

Chapter 26

Principal Relief: Dissolution, Annulment, Declarations and Legal Separation Jurisdiction Divorce 26.1 Under s 39(3) of the Family Law Act 1975 (Cth) (Family Law Act), proceedings for a divorce order1 may only be instituted if, at the date of filing the application, either party to the marriage: (a) is an Australian citizen; (b) is domiciled in Australia; or (c) is ordinarily resident in Australia and has been so resident for one year immediately preceding that date.

Annulment and declarations 26.2 Under the Family Law Act s 39(4)(a), proceedings for a decree of nullity of marriage or for a declaration under s 113 as to the validity of a marriage or the dissolution or annulment of a marriage by decree or otherwise may be brought if, at the date of filing the application, either party to the marriage: (a) is an Australian citizen; (b) is ordinarily resident in Australia; or (c) is present in Australia.

[page 605]

Legal separations 26.3 The remedy of granting a legal or judicial separation has not existed in Australia since 1976.

General 26.4 The meaning of the personal connecting factors of nationality, domicile and ordinary residence has already been discussed in Chapter 13. The word ‘Australia’ covers the six states, the Northern Territory, the Australian Capital Territory (including the Jervis Bay Territory), Christmas Island and the Cocos (Keeling) Islands,2 and Norfolk Island.3 The Family Law Act extends to the whole of that area.4 26.5 A court of a territory may not exercise jurisdiction under the Act unless at least one of the parties to the proceedings is, at the date of institution of proceedings, ordinarily resident in that territory.5 This restriction does not apply to the Family Court of Australia exercising jurisdiction in and over a territory, since it is a federal and not a territorial court.

Declining jurisdiction — clearly inappropriate forum 26.6 A court having jurisdiction on any of the above bases may nonetheless stay the proceedings if satisfied that it is a ‘clearly inappropriate forum’ for continuation of the proceedings.6 Occasion to consider this will most typically arise when parallel divorce proceedings are pending in another country.7 In determining whether the court should decline jurisdiction on forum non conveniens grounds, the Family Court will apply the principle laid down by the High Court in Voth v Manildra Flour Mills Pty Ltd;8 namely, that it should only decline jurisdiction if Australia is a ‘clearly inappropriate forum’, which is to be determined by considering whether continuation of the proceedings would be ‘oppressive’ or ‘vexatious’ in the extended sense in which those words were used by Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay.9 While the substantive law of the forum is a very significant factor in the exercise of the court’s discretion, it is not the case that the selected forum will never be inappropriate even though it is fairly arguable that its substantive law is

applicable. And while the prima facie right of a party to have proceedings continue in a regularly-invoked jurisdiction can be a relevant factor, its significance will vary from case to case, so that it might be decisive in an otherwise finely balanced contest, but [page 606] of little significance where the forum selected is otherwise clearly inappropriate.10 In family law proceedings, the circumstance that the law of Australia may give some advantage to the applicant is of less significance than in commercial litigation, whereas considerations of the parties’ respective ability to litigate in the competing forums (having regard to issues such as the language in which proceedings will be conducted), may loom larger; and the need to treat issues between husband and wife arising out of the matrimonial relationship and its breakdown as a single controversy tells strongly against permitting parallel proceedings in more than one jurisdiction.11 However, it does not follow from a conclusion that Australia is a clearly inappropriate forum for the determination of one category of matrimonial cause between the parties that it is necessarily a clearly inappropriate forum for all other categories of matrimonial cause between them.12

Choice of Law Divorce 26.7 The Family Law Act s 53 provides that a decree may be made, or refused, by reason of facts and circumstances notwithstanding that those facts or circumstances, or some of them, took place outside Australia. In Grummett v Grummett13 Gibbs J (then a judge of the Supreme Court of Queensland) held, in relation to the similar provision of the Matrimonial Causes Act 1959 (Cth) s 67(1) (the Matrimonial Causes Act), that those words mean that ‘any facts which took place outside Australia provide a ground for divorce just as much as facts which took place in Australia’, thus embodying a choice of law rule directing the application of the lex fori. 26.8 There is, however, a strong argument that the Family Law Act s 53 (and its predecessor Matrimonial Causes Act s 67(1)), is intended merely to restate the

common law principle that ‘it is generally immaterial where the matrimonial offence in respect of which the divorce is sought is committed or whether the domicile has changed since the commission of the offence’.14 The section provides merely that foreign facts and circumstances can be taken into account, but says nothing about the legal character of those facts and circumstances. The legal character must be determined in accordance with the Family Law Act s 42(2), by the applicable law. [page 607] 26.9 Even apart from statutory provisions, there is little doubt that in divorce proceedings the court must apply the lex fori.15 Thus, an Australian court can grant a divorce on the ground provided for in s 48 of the Act, even if the separation took place in a foreign jurisdiction where separation is not a ground for divorce, or even where divorce is not permitted at all.16

Annulment and declarations 26.10 The choice of law rules whereby the validity of a marriage is determined, and the grounds under Australian or foreign law upon which a marriage may be annulled, are discussed in Chapter 25 above.

Legal separations 26.11 Since this remedy has been abolished, no question of choice of law can arise.

Recognition 26.12 The recognition of foreign divorces, annulments and legal separations17 is governed by the Family Law Act Pt XII. For the purposes of recognition, the legislation distinguishes between decrees pronounced by courts within Australia, and those pronounced in overseas jurisdictions. 26.13 Under the Family Law Act s 103, a decree under the Act has effect throughout Australia and its external territories. This provision in effect dispenses with the common law recognition rules and provides for recognition

throughout Australia and its territories of decrees validly made according to the law under which they were pronounced. 26.14 Section 104 is concerned with recognition of decrees made outside Australia. It is based on the Hague Convention on Recognition of Divorces and Legal Separations, concluded on 1 June 1970.18 Essentially, under s 104(3), a divorce, annulment or legal separation ‘effected in accordance with the law of an overseas jurisdiction’ shall be recognised as valid in Australia if the applicant or respondent had a qualifying connection with that foreign jurisdiction at the date of institution of proceedings which resulted in that divorce, annulment or legal separation. The qualifying connection may be ordinary residence, domicile or nationality, but the requisite connection differs depending upon whether it is the connection of the applicant or of the respondent that is invoked to found recognition. [page 608]

Ordinary residence 26.15 The meaning of ‘ordinary residence’ has been discussed in Chapter 13. In the case of a joint application, the qualifying residence of one of the applicants will suffice. 26.16 When the divorce, annulment or legal separation is effected in accordance with the law of the jurisdiction in which at the date of institution of proceedings the respondent was ordinarily resident, the decree shall be recognised in Australia.19 Thus, an Australian wife whose husband has left her to reside in California may choose to proceed in that jurisdiction. Provided that at the date of institution of proceedings there he is ‘ordinarily resident’ in California, the decree will be recognised in Australia, even though that residence was established for less than one year. 26.17 On the other hand, if the applicant’s residence is relied upon, a further qualification must be satisfied: either that the ordinary residence of the applicant has continued for not less than one year immediately before the institution of proceedings which resulted in the decree, or that the last place of cohabitation of the parties to the marriage was in that jurisdiction.20 Thus, an Australian who proceeds to Nevada,21 Mexico or any other divorce haven to divorce his or her spouse who remains resident in Australia, will not have that decree recognised

here.22

Domicile 26.18 The meaning of domicile has already been discussed in Chapter 13. The Domicile Act 1982 (Cth) s 6 has abolished the dependent domicile of the married woman. An overseas decree will be recognised if it was effected in accordance with the law of an overseas jurisdiction in which at the time of institution of proceedings the applicant or respondent was domiciled.23 In the case of a joint application, the domicile of one of the applicants will suffice.

Nationality 26.19 The notion of nationality as a connecting factor has been discussed in Chapter 13. Again, a distinction is drawn depending on whether it is the applicant’s or the respondent’s nationality which is relied upon as providing the connecting factor. 26.20 An overseas divorce, annulment or legal separation will be recognised as valid in Australia if the respondent to the proceedings in which it was effected was a national of the overseas jurisdiction at the time of institution of the proceedings.24 Thus, if an Australian husband were to obtain a divorce from his German wife from a German court, that decree will be recognised even if both parties were at all [page 609] relevant times resident and domiciled in Australia.25 Nor need either party have been present in Germany for the proceedings. 26.21 However, if the applicant’s nationality is relied upon, additional requirements must be met. In that case, it must be established either that the applicant was ordinarily resident in the jurisdiction of nationality at the date of institution of proceedings,26 or had been ordinarily resident in that jurisdiction for a continuous period of one year falling, at least in part, within the two years immediately before the date of institution of proceedings,27 or that the applicant was present in the jurisdiction of nationality at the time of institution of proceedings and the last place of cohabitation of the parties was in an overseas

jurisdiction the law of which, at the time of institution of proceedings, did not provide for divorce, annulment or legal separation, as the case may be.28 In the case of a joint application, it is sufficient if jurisdiction is established for one of the applicants. 26.22 Thus, a divorce obtained by the Hungarian husband of an Australian woman will not be recognised under this provision unless he has gone back to that country to live and is still living there by the time he instituted proceedings or, if he has since left that country to work in Germany, he has spent at least one year in Hungary and has instituted proceedings within two years of his departure from Hungary. 26.23 A particular problem arises when nationality is relied upon where a political unit embraces several territories with different laws, such as the United States. Section 104(2) of the Family Law Act provides that a person who is a national of a political unit of which an overseas jurisdiction forms part shall be deemed to be a national of that overseas jurisdiction. By s 4(1), ‘overseas jurisdiction’ is defined as including part of a country outside Australia. It follows that an American state or territory being part of the United States is itself an ‘overseas jurisdiction’ for the purposes of the section. Consequently, a citizen of the United States must be deemed to be a citizen of the single state or territory of the United States, the law of which is relied upon for the purposes of obtaining recognition of the decree in Australia. 26.24 Thus, an Australian husband who divorces his United States wife in Nevada will have the Nevada decree recognised in Australia because, by virtue of subs (2), the wife is to be treated as a citizen of that state, even though she has no personal connection with that state. But if the United States citizen obtains a divorce in Nevada, then, since Nevada and not the United States, is the ‘overseas jurisdiction’ for the purposes of s 104(3), the divorce could be recognised in Australia only if that citizen established the residential connection with Nevada required by s 104(3)(e).

Applicant or respondent? 26.25 Accordingly, in determining whether a decree is entitled to recognition under s 104(3), it will be relevant to ascertain whether a party to the original proceedings

[page 610] was an applicant or a respondent. Section 104(1) defines as the applicant the party at whose instance the divorce, annulment or legal separation was effected, and as respondent a party not being the party at whose instance the decree was effected. In the case of a joint application, each of the parties is an applicant. In court proceedings, those parties can usually be identified easily. Even where the dissolution is non-judicial, there is usually one party who takes the initiative, such as the husband who pronounces talak under Muslim law, or delivers the get under Jewish law. A problem might arise when the talak or get was pronounced at the request of the wife.29 It is submitted that even then the husband is the applicant, since it is he who formally institutes the legal process resulting in the divorce.

Effected in Accordance With the Law of an Overseas Country 26.26 Section 104(3) of the Family Law Act stipulates that the divorce, annulment or legal separation must have been effected in accordance with the law of an overseas country. While this has been said to mean that the divorce, annulment or legal separation should be valid according to the law of the overseas jurisdiction, it does not require examination by the local court of the correctness of the foreign decree under its own municipal law, but merely that the foreign decree be one that the foreign court was competent to make.30 In Norman v Norman (No 3),31 Fox J said of a similar provision in s 95(2) of the Matrimonial Causes Act: I do not read the words ‘effected in accordance with the law of a foreign country’ as requiring an examination of the correctness of the foreign decree under the municipal law of the foreign country, but as stipulating merely that the decree accord with that law in the sense that it be a decree which the court was competent to make. The decree must of course be one which by the foreign law is given the effect of dissolving … the marriage.

26.27 Thus, it is not necessary to establish that the grounds on which the foreign court dissolved or annulled the marriage were properly established according to its municipal law, or even that the grounds on which it exercised jurisdiction did in fact exist. All that need be established is that under the relevant law the decree is effective; that is, final and conclusive. If, however, it can be established that the decree of the foreign court is a total nullity under its

municipal law, by reason of error as regards any question of fact or of law, it cannot be said to have been effected in accordance with the law of the country concerned. This differs from the common law position, where a decree may be recognised even though it is void under its own law, provided that the foreign court had jurisdiction in the international sense.32 [page 611] 26.28 The divorce, annulment or legal separation need not be effected in accordance with judicial process. It is for the law of the overseas jurisdiction concerned to stipulate what method is effective to dissolve or annul the marriage. To make this point clear, s 104(10) of the Family Law Act provides that the provisions of the section apply to divorces, annulments and legal separations effected whether by decree or otherwise. Consequently, Australian courts will recognise a foreign dissolution even though it was obtained through an administrative official,33 or from a religious tribunal,34 or by the mutual consent of the spouses,35 or even by unilateral repudiation, provided that there has been no denial of natural justice.36 It does not matter that a marriage celebrated in monogamous form is afterwards dissolved by talak or other form appropriate to the dissolution of polygamous marriages.37 Nor need it be effected overseas. A talak pronounced in Australia and effective by the law of the overseas jurisdiction will be recognised.38 26.29 A remarkable extension to the words ‘effected in accordance with the law of an overseas jurisdiction’ is found in s 104(8), which provides that divorce or annulment shall be deemed to have been effected in accordance with the law of an overseas jurisdiction if it was effected in another overseas jurisdiction in circumstances in which, at the date of institution of the proceedings which resulted in the decree, it would have been recognised as valid by the law of the first mentioned jurisdiction. Thus, it is not necessary that the dissolution or annulment be effected under the law of the overseas jurisdiction concerned, but merely that it be recognised as effective by that law. 26.30 A simple example may suffice to illustrate the multiplier effect of that provision. An Australian businessman is sent to manage his company’s New York office for some years. His marriage breaks up and his wife and children return to Australia. With his wife’s consent he takes a plane trip to Haiti where, within 24 hours, he obtains a divorce. If New York courts will recognise that

decree, so will Australian courts, since a divorce pronounced in New York would have been recognised under s 104(3)(b)(i) and consequently a dissolution recognised as effective to dissolve the marriage in New York will be recognised in Australia under s 104(8).

Definition of annulment 26.31 The Family Law Act s 104(10), defines as an annulment, for the purposes of the section, ‘any decree, legislation or other process by which it is established that a purported marriage was or is to become void’. 26.32 This definition appears to cover, besides a judicial decree annulling a marriage as being void ab initio: (a) a declaration in proceedings similar to those described in s 113 of the Family Law Act that a marriage is invalid.

[page 612] 26.33 This may have the effect of giving a declaration made in England, where it does not have an operation in rem,39 such an operation in Australia, unless one reads the word ‘established’ as meaning ‘established in rem’. It is submitted that the latter interpretation is desirable, since in principle a foreign decree should not have a greater operation in the forum than it has under its own law. (b) the annulment of a marriage which is voidable, at least if the effect of the annulment is to render the marriage void retrospectively, as used to be the case at common law.

26.34 In practice, the classification will make little difference unless a court is so perverse as to classify, say, the annulment of a voidable marriage as being neither a process which renders a marriage void nor a divorce. The injunction that one should classify according to the lex fori but with sufficient flexibility to encompass foreign concepts which do not have an exact domestic counterpart should be observed. (c) any administrative or legislative process whereby the invalidity of a marriage is established.

26.35 This could include a rectification of a marriage register resulting in the removal of the registration of a marriage, or even the refusal by municipal authorities to register the marriage of one of their nationals abroad, if this has the

effect of establishing the invalidity of that marriage under the foreign law (not, of course, if that refusal can be challenged in a court of law).

Recognition at Common Law 26.36 Section 104(5) of the Family Law Act provides that any divorce, annulment or legal separation that would be recognised as valid under the common law rules of private international law, but to which s 104(3) does not apply, shall be recognised as valid in Australia.

Divorces 26.37 In relation to divorces, there are two possible sources of recognition: the principle of reciprocity established by Travers v Holley,40 and the principle of real and substantive connection found in Indyka v Indyka.41 26.38 Travers v Holley establishes the principle that an Australian court will recognise a foreign dissolution where the foreign court assumes jurisdiction in a factual setting which, had those same facts arisen within Australia, would have entitled the Australian court to exercise jurisdiction to dissolve the marriage. It is not necessary that there be a correspondence of the formal jurisdictional basis. If a Mexican court dissolves the marriage of a Mexican citizen, there is in fact reciprocity with Australia, because an Australian court can dissolve the marriage of an Australian citizen. It matters not that Mexico does not consider nationality at all relevant as a jurisdictional factor but instead requires only 24 hours’ residence. [page 613] Reciprocity means equivalence of the factual basis for jurisdiction, not of the law relating to jurisdiction.42 26.39 The application of Travers v Holley to Australian common law was in some doubt. In Fenton v Fenton43 the Victorian Full Court refused to follow it, on the ground that it conflicted with decisions and dicta of the Privy Council and House of Lords to the effect that domicile was the sole basis for recognition of foreign decrees. However, the New South Wales Full Court, in Sheldon v

Douglas (No 1)44 had no difficulty in following Travers v Holley. The issue became largely moot in Australia after the enactment of the Matrimonial Causes Act s 95(3), which provided for what was almost a mirror image of the provisions defining the jurisdiction of Australian courts in divorce. But there is no equivalent in the Family Law Act: s 39(3)(a) provides that an Australian court may assume jurisdiction on the ground that the applicant is an Australian citizen; whereas under s 104(3)(e) and (f), the fact that the applicant in the foreign proceedings is a national of the overseas jurisdiction concerned is not of itself enough to attract recognition. 26.40 Does s 104(5) of the Family Law Act render the safeguards against abuse incorporated in s 104(3) inoperative, by importing the principle of reciprocity in Travers v Holley? It would appear that it does. While, ordinarily, the express provisos in s 104(3)(e) and (f) that certain additional requirements be met would exclude any implication that Travers v Holley could operate to by-pass them, s 104(5) is expressly not to be ‘limited by any implication from those provisions’. 26.41 Nor can it be argued that Travers v Holley is not part of the common law rules of private international law in Australia. Since Fenton v Fenton was decided, the principle has been approved by the majority of the House of Lords in Indyka v Indyka. That decision in turn has been followed and approved in Australia.45 It would be inconsistent to accept the wider Indyka v Indyka principle, yet reject Travers v Holley out of which it grew. Travers v Holley was accepted as good law by Baker J in In the Marriage of Barriga (No 2)46 although not applied in the circumstances of that case. 26.42 The principle in Indyka v Indyka is that there must be a real and substantive connection between the applicant and the court exercising jurisdiction.47 The divorce must be ‘genuine’; that is, the applicant must not have resorted to the jurisdiction for the purpose of evading the law under which he or she was living.48 26.43 In most cases, the real and substantive connection will be amply covered by the provisions of s 104(3). However, there are a few situations in which the Indyka v Indyka principle will operate to allow recognition outside the scope of s 104(3). For instance, a real and substantive connection has been held to exist where an applicant returned to the jurisdiction of her nationality and obtained a divorce after only [page 614]

six months’ residence.49 If the applicant seeks to rely on the respondent’s nationality and short-term residence in the jurisdiction in which he or she obtained the divorce, that, too, would suffice.50 It may be that the last common matrimonial home may provide the necessary connection, if it was abandoned relatively shortly before the commencement of proceedings.51 Residence of the applicant alone for a period of 12 months or more has been held sufficient under the Indyka principle.52 Since the Indyka principle is not tied to a specific period of time, but focuses on the seriousness and bona fides of the connection, a shorter period of residence might well qualify, provided that the conduct of the applicant, both before and after the granting of the divorce, indicated that the residential connection was both substantial and genuine.53 26.44 On the other hand, six weeks’ residence in a notorious divorce haven like Nevada is too short,54 nor will a Mexican divorce by proxy be recognised under this principle.55 The mere fact that the spouses were married in a particular country is not a basis for recognition of a divorce decree obtained there many years later when both spouses have lost all connection with that country.56 26.45 It appears that, under the Indyka principle, a divorce recognised as effective by the law of a jurisdiction with which the applicant or the respondent had a real or substantial connection will be recognised in the forum. In Messina v Smith57 Ormrod J recognised a divorce obtained in Nevada after the customary six weeks’ residence by a person bona fide resident in one of the other states of the United States. Although, in a certain sense, the applicant had ‘resorted’ to Nevada for the purpose of obtaining a divorce, his Lordship nonetheless considered the divorce ‘genuine’ because, by virtue of the United States Constitution, the Nevada decree was binding throughout the United States, and it could not be said therefore that the applicant had resorted to Nevada for the purpose of evading the laws under which she lived. 26.46 Section 104(8) of the Family Law Act removes even that qualification. That subsection applies to all preceding provisions, including subs (5). Consequently, a ‘quickie’ divorce obtained in Mexico by an applicant who has a real and substantial connection with New York will now be recognised in Australia, and the contrary decision in Mountbatten v Mountbatten58 must be treated as inapplicable to s 104. But subs (8) again does not limit any common law rule. It follows that a divorce entitled to recognition under the law of the domicile of the applicant at the time when the decree was made, but not at the time of the institution of the original proceedings, will be recognised under the common law principle of Armitage v Attorney-General.59

[page 615] It also means that a decree that did not effect a divorce under the law of an overseas jurisdiction, because it was a nullity under that law, may still be recognised under s 104(5) because of the common law principle in Pemberton v Hughes.60 26.47 It is clear that a party cannot give jurisdiction in divorce to a foreign court by submission to its jurisdiction. However, it has been held in some American jurisdictions, particularly New York, that a person who obtains, or takes advantage of, a foreign divorce cannot afterwards plead that the foreign court lacked jurisdiction.61 These decisions have been followed in some Canadian jurisdictions.62 26.48 The point arose in the South Australian case of Alexsandrov v Alexsandrov.63 In that case, the respondent husband had previously been married but had obtained on his own petition a divorce in Bulgaria. In proceedings taken by the petitioner to dissolve the second marriage, the husband sought to plead that the second marriage was null and void because the Bulgarian decree was not one which Australian courts would recognise. The question therefore arose of whether the husband could attack the validity of the decree, which he had himself obtained. Mitchell J held that there could be no estoppel concerning questions of status, and therefore the husband was not precluded from raising the question of the validity of the Bulgarian decree. In that case, the very issue was whether the status of marriage existed or not. In other situations, where what is claimed is not a finding as to the status of marriage as an end in itself, but a collateral right flowing from marriage, an Australian court can, on Canadian precedent, hold that a party is estopped from denying that a marriage is dissolved or annulled by his or her own action for the purpose of preventing him or her from claiming collateral rights such as maintenance or inheritance.64

Annulment 26.49 What are the relevant recognition rules at common law cannot be stated with any certainty. The decree of the domicile of the parties would most certainly have been recognised at common law.65 At common law, an annulment recognised by the law of the domicile would also be recognised in the forum.66 Section 104(3) and (8) of the Family Law Act makes it clear that an annulment effected in accordance with, or recognised by, the law of the country where one

party to the marriage is domiciled will be recognised. Merker v Merker67 supports the contention that, at common law, an annulment pronounced by the court where the respondent was resident would be recognised. This is now covered by s 104(3). [page 616] 26.50 There is authority for the proposition that at common law an annulment pronounced by the court of the jurisdiction where the marriage was celebrated would be recognised, at least where the marriage was annulled as being void ab initio.68 That would provide a ground not covered by s 104(3). 26.51 There is also judicial support for the application of the Travers v Holley principle to annulments.69 If this is correct, the basis for recognition in Australia would become extremely wide and transcend the restrictions of s 104(3). It would suffice that an applicant or respondent was a national of the overseas jurisdiction concerned, or that an applicant or respondent was present in that jurisdiction, presumably at the date of institution of proceedings. No period of residence would be required. In those circumstances it becomes irrelevant to speculate whether the Indyka principle is applicable to the recognition of annulments. In England it has been held to be applicable in Law v Gustin70 and Perrini v Perrini,71 both of which were approved by the Court of Appeal in Vervaeke v Smith.72

Legal separations 26.52 There is a paucity of authority on the recognition of overseas legal separations at common law. There is little doubt that a decree of legal separation by the court of the common domicile of the parties would have been recognised at common law.73 There is doubt whether the common residence of the parties sufficed.74 In the circumstances, it is unlikely that the grounds provided for in s 104(3) are likely to be exceeded.

The Time Factor 26.53 Section 104(10) of the Family Law Act makes the provisions of that section applicable to divorces, annulments and legal separations effected before

or after the commencement of that Act. This means that a decree obtained prior to 5 January 1976, which would not have been recognised in Australia under the law as it then stood, must now be recognised with retrospective effect from the date it was first pronounced.75 26.54 This can lead to startling results, as is illustrated by the facts in Hornett v Hornett.76 In that case the husband, an Englishman, then living in France, married the wife, a French citizen, in 1919. A few years later the husband left the wife to return to England. In 1925 he learned that the wife had divorced him in France the [page 617] year before. He had received no notice of the proceedings. He went over to France, became reconciled with his wife and returned with her and their son to England where they lived together as a family until 1936 when the wife returned to France for good. In 1937 she applied for a maintenance order from an English court and the husband submitted to the jurisdiction of the court on the basis that a valid marriage subsisted between them. In 1964 he successfully applied for a variation of the order because of a change in his financial circumstances. It was not until 1969 that he applied for a declaration that the French divorce in 1924 was valid in England. 26.55 In 1925 it was undoubted law that only the court of the common domicile of the spouses was entitled to dissolve a marriage.77 That domicile was in England and consequently the French decree would not have been entitled to recognition as the law stood at that time. By 1969 Indyka v Indyka had been decided, and there was little doubt that the wife had a ‘real and substantial connection’ with France in 1924 and the French decree, had it been obtained in similar circumstances in 1969, would have been entitled to recognition. 26.56 Cumming-Bruce J held that the common law principle in Indyka v Indyka was retrospective in effect. In Australia, s 104(10) would have dictated the same conclusion. His Lordship also held that the common assumption of the parties between 1925 and 1964 that the French divorce was not effective in England, and the acceptance by the husband of the matrimonial jurisdiction of the courts could not create any estoppel between them, since a question of status was involved.

26.57 As it turned out, no child was born to the parties during the 11 years of cohabitation in England. If there had been, that child might suddenly have found itself to be illegitimate. His Lordship had that possibility in mind when he qualified his decision in the following terms:78 If I were satisfied that there was injustice involved to either party, or to a child of the family, as a result of a declaration recognizing the French decree, I should hesitate very long before making such a declaration.

26.58 In Australia, however, that option is foreclosed by subs (10), unless s 104(4)(b) could be invoked on the ground that retrospective recognition of the divorce would be manifestly contrary to public policy in that it offends against substantial notions of Australian justice.79 But it is doubtful whether the fact that recognition will cause hardship, as opposed to the inherent immorality or unfairness of the decree itself, would suffice to bring public policy into play.

Onus of Proof 26.59 In principle, the onus of proving that a foreign decree is entitled to recognition in Australia rests upon the party seeking to rely on it, who must establish that the foreign decree satisfies the jurisdictional requirements specified by the Family Law [page 618] Act s 104. As a general rule, it is for the court in which recognition is sought to determine for itself whether those requirements have been met.80 However, by s 104(7)(a), if the respondent appeared in the foreign proceedings, an Australian court is bound by the findings of fact on the basis of which the overseas court assumed jurisdiction. This means that a finding by a Nevada court, that a person who resided in that state for six weeks solely for the purpose of obtaining a divorce was domiciled there, will be binding on an Australian court.81 If the respondent did not appear in the overseas proceedings, then an Australian court may treat as proved any facts found by the overseas court,82 but this is discretionary, and the court will normally require proof by the party relying on the foreign decree if there is a bona fide dispute concerning the correctness of the finding by the foreign court.83 26.60 In Suko v Suko,84 Gowans J considered that a finding by a foreign court

that the petitioner was domiciled within its jurisdiction was not solely a question of fact. His Honour suggested that a finding of residence, on the other hand, would be a finding of fact. However, the distinction is really only one of degree: both concepts involve the application of a legal definition to certain facts, though one may be easier to apply than the other. It is submitted that domicile, nationality or residence found by a foreign court must be considered a ‘jurisdictional fact’ on the basis of which that court assumed jurisdiction. If the concept, say, of domicile is totally different in Nevada from that in Australia, then clearly the jurisdictional fact will have little relevance here. But if the concept in Nevada is the same, but is established in fact upon the judicial acceptance of a ritual declaration of intent to remain indefinitely in that state,85 the Australian court will be bound to accept the Nevada finding if the respondent appeared, and may consider it in the exercise of its discretion even if the respondent did not.

Circumstances in Which Recognition Will be Refused for Reasons Other than Lack of Jurisdiction 26.61 The Family Law Act s 104(4) defines the circumstances in which a divorce, annulment or legal separation otherwise entitled to be recognised may be refused recognition in Australia. They are (1) that under the common law rules of private international law, recognition would be refused on the ground that a party to the marriage has been denied natural justice; or (2) that recognition would manifestly be contrary to public policy. [page 619]

Denial of natural justice 26.62 The requirements of natural justice are more fully discussed elsewhere.86 Traditionally, the principles of natural justice require that (a) the respondent receive due notice of the proceedings; and (b) both parties are given an opportunity to be heard and to present their case at the hearing.87 For present purposes, it may be concluded that there was no adequate opportunity to be

heard where a party has been denied adequate legal representation in the foreign court,88 or where instructions to appear and defend the proceedings in the foreign court were not acted upon through the default of the solicitors in that jurisdiction.89 In Adams v Cape Industries plc90 the English Court of Appeal extended the concept of denial of procedural fairness to other situations where the forum’s concept of substantial justice is infringed; for example, where the foreign court infringed its own procedural requirements that notice of the actual hearing should be given to the defendant. 26.63 It was once thought that the first requirement was absolute and that, consequently, a foreign decree would not be recognised if the respondent had not been notified of the proceedings, whatever the circumstances.91 However, in Brown v Brown,92 Selby J recognised a Mexican decree, despite the fact that the Mexican court had dispensed with the need for personal service on the respondent and had instead directed that notice of the application be advertised in a Mexican newspaper, which in all likelihood would never come to the notice of the respondent. Being satisfied that the applicant at the time had been genuinely unaware of the respondent’s whereabouts, his Honour held that an Australian court could not regard as contrary to its concept of natural justice a foreign dispensation with personal service in a situation where an Australian court would have been authorised to do likewise, even though the method of giving notice ordered by the foreign court did not commend itself to an Australian court. 26.64 If the applicant defrauds the foreign court by falsely representing to it that he or she is unaware of the respondent’s address, recognition of the foreign decree will be refused.93 Semble, the forum also has discretionary power to refuse recognition where, by reason of failure to notify the respondent to the proceedings, grave injustice would be caused to him or her if recognition were granted.94 But this does not apply where recognition of the decree would not affect the respondent’s rights to maintenance or property settlement.95 [page 620]

Public policy 26.65 In this field, public policy raises two quite opposed considerations. On the one hand, it is clearly undesirable to refuse recognition to a foreign divorce

or annulment validly effected under the law of a foreign jurisdiction and otherwise entitled to recognition, thereby creating a situation where the same parties are still married in one place but unmarried in another. 26.66 In Igra v Igra,96 a wife obtained a divorce in Germany from her Jewish husband during the war, at the ‘suggestion’ of the Gestapo. Although the German court was undoubtedly influenced by racial discrimination, the judgment on its face was based on normal grounds of divorce available under general German law. The validity of divorces based on racial discrimination was expressly preserved by post-war legislation of the Control Council of Germany. The wife rejoined her husband in England after the war, but separated from him after a short period of cohabitation. Pearce J held that the German decree should be recognised:97 … the subsequent law of Germany has confirmed its validity, and the injured party, if there has been injury, accepted it and acted upon it. In those circumstances it would be unfortunate if the court felt bound to reject its validity, with the result that the wife would have a married status in England and an unmarried status in Germany. It has long been established that the court of the domicile is the proper tribunal to dissolve a marriage. Its decisions should, as far as reasonably possible, be acknowledged by other countries in the interests of comity. Different countries have different personal laws, different standards of justice and different practice. The interests of comity are not served if one country is too eager to criticize the standards of another country or too reluctant to recognize decrees that are valid by the law of the domicile.

26.67 The opposing consideration is one that stresses justice in the individual case. In a series of later cases, English courts refused recognition to foreign divorces and annulments which were obtained abroad in the proper jurisdiction in a manner which has been considered unjust and which, if recognised, could have an adverse effect on the rights of an English domiciliary, usually the wife. The reason given for such refusal has been that the decree is ‘contrary to substantial justice’.98 In Middleton v Middleton,99 Cairns J defined this term as including anything that strikes an English court as ‘fundamentally unfair’. 26.68 Thus, in Re Meyer,100 Bagnall J was faced with a divorce that had been obtained in Germany in a situation similar to that in Igra v Igra. However, unlike Mrs Igra, Mrs Meyer had successfully resumed cohabitation with her husband after the war. The question of the recognition of the German divorce arose after the [page 621]

husband’s death, when it had to be determined whether Mrs Meyer was entitled to a widow’s pension out of the funds provided for victims of Nazi persecution. She sought a declaration that she was at the time of Mr Meyer’s death still legally married to him. Distinguishing Igra v Igra on its facts, Bagnall J refused to recognise the German decree on the basis of public policy, by reason of the circumstances, amounting to duress, in which it had been obtained. 26.69 Similarly, recognition has been refused where the institution of the proceedings which resulted in the foreign decree has been procured by fraud. Thus, in Kendall v Kendall,101 the wife had been persuaded to sign certain papers in the Spanish language in Bolivia, on the pretext that they were documents necessary to allow her to take the children out of that country. Unbeknown to her, they included a power of attorney enabling a local lawyer to take divorce proceedings in her name. Hollings J refused to recognise the resulting decree, as being manifestly contrary to public policy. This enabled the wife to take her own divorce proceedings in England and seek ancillary financial relief. 26.70 Indeed, it has been the potential loss of rights to financial relief that has been the greatest spur to non-recognition in England. Thus, in Gray (otherwise Formosa) v Formosa102 recognition in England of the annulment in Malta of a marriage celebrated in England would have left the English wife without rights to maintenance. The resorting by the Pakistani husband in Chaudhary v Chaudhary103 to pronouncing a talak on English soil, as permitted by the law of his nationality, had the sole purpose of stifling proceedings for financial relief commenced by his wife in England. On the other hand, in Qureshi v Qureshi,104 a talak pronounced physically in England but in accordance with the law of Pakistan was recognised, in circumstances where no tangible benefit would accrue to the wife as a result of refusing to do so. Since a foreign divorce or annulment does not preclude proceedings for maintenance or property settlement in Australia, this ground for refusal of recognition (if it exists) has no practical relevance in Australia. 26.71 In Vervaeke v Smith,105 the majority of the House of Lords firmly sided with those who favour an expanded role for public policy. In that case, the majority refused recognition to a Belgian annulment of a sham marriage celebrated in England between a British national and a Belgian citizen, on the ground that in such a case the rule of English domestic policy, which considered such marriages to be valid, should override the Belgian domestic policy that such marriages should not be given legal recognition.106 This appears to be in

conflict with the established view that the recognising forum is concerned only with the question of whether the foreign court has exercised a jurisdiction which it will recognise, no matter what law [page 622] the foreign court applied.107 However, in Vervaeke v Smith, the Belgian decree of nullity had been preceded by an English order — as reported in Messina v Smith108 — dismissing the woman’s petition for annulment on the substantive ground that the marriage was valid under English law. The House did not consider the situation which would have arisen had the Belgian decree been made first. The decision in Vervaeke v Smith can therefore be explained on the narrower (and unanimous) ground that an English court will not recognise a foreign decree of annulment if a petition for the same relief on the same grounds has been previously dealt with and dismissed on the merits in England. 26.72 There are very few examples of Australian courts actually invoking a discretionary power to refuse recognition. In El Oueik v El Oueik,109 a wife instituted divorce proceedings in Australia, seeking to dissolve a marriage that she said had been celebrated in a Maronite Catholic Church in Lebanon. Her husband, who was in Australia, said that the marriage had been made by a marriage agreement that was ratified by a Muslim court in Lebanon, and he instituted divorce proceedings in the Lebanese court. No notice of the Lebanese proceedings was given to the wife, although she was visiting Lebanon at the time and the Muslim court in Lebanon made a decree dissolving the marriage. In the Australian proceedings, the husband sought a declaration of the validity of the Lebanese decree of divorce, and dismissal of the wife’s petition on the grounds that the marriage had already been dissolved. 26.73 Toose J would have refused to recognise the Lebanese divorce, both because it had been obtained without notice to the wife, and on grounds of public policy. The husband was domiciled in Australia and an Australian citizen, and had resorted to the Muslim court in Lebanon ‘purely for procuring a divorce and avoiding his responsibilities towards the petitioner’.110 Thus, said Toose J, recognition of the decree would be ‘manifestly contrary to public policy’.111 26.74 Toose J’s consideration of s 104(4) was obiter, because his Honour had concluded that the Lebanese decree was not entitled to recognition under s 104(3) in any event, as neither the husband nor the wife was ordinarily resident

in Lebanon when the husband applied for the decree. However, because s 104(4) only becomes relevant if the requirements of s 104(3) are satisfied, one must assume for the purposes of considering s 104(4) that the wife was ordinarily resident in Lebanon when the husband obtained the decree.112 If that assumption is made, refusal of recognition on public policy grounds seems questionable (although refusal of recognition on grounds of the absence of notice would still be appropriate). To say that the divorce was obtained in Lebanon to avoid the husband’s obligations to [page 623] the wife in Australia is to assume that the husband had obligations to the wife in Australia, which was the very point in issue. 26.75 In Norman v Norman (No 3),113 Fox J considered it as an established ground for refusal of recognition at common law that the decree ‘offends against our concepts of substantial justice’. There is, however, much to be said for the common sense approach adopted by Somers J in Hassan v Hassan:114 The principle matter is that if as I have held the husband is according to the law of his domicile divorced, I can see no advantage whatever in not recognising that fact. To do otherwise would result in a limping marriage …

26.76 Specific provision in relation to foreign annulments of marriages solemnised under the Marriage Act 1961 (Cth) Pt V, is made in the Family Law Act s 104(6): Notwithstanding anything contained in this section, the annulment in accordance with the law of an overseas jurisdiction of a marriage solemnized under Pt V of the Marriage Act 1961, being an annulment on the ground only of non-compliance with the formalities prescribed by the law of the jurisdiction in which the marriage was solemnized, shall not be recognized as valid in Australia.

26.77 This settles a point that was uncertain at common law. In Hay v Northcote,115 a marriage celebrated by a British Consul in France under the Consular Marriage Act 1849 (United Kingdom)116 was held valid in England, even though it had been annulled by a French court for lack of compliance with the formalities prescribed by French law. The correctness of that decision had, however, been doubted by Sir Jocelyn Simon P in Merker v Merker.117

Prohibition Against Remarriage After

Divorce 26.78 Many systems impose some restraint upon the capacity of persons recently divorced to remarry. In most cases, the purpose of such restraint is to preserve the status quo in case there is a successful appeal against the making of the decree absolute.118 Such a restraint is binding upon a person who seeks recognition of the decree and will preclude a valid remarriage, even if that person is at the time of remarriage domiciled in another jurisdiction. As the High Court put it in Miller v Teale:119 Where the law under which the decree is granted imposes a restraint upon both parties and it is merely in order to provide against remarriage before the time for appealing has expired, the restraint is then regarded as a temporary qualification of the effect of the decree and as entitled to extraterritorial recognition when the question arises whether the parties to the marriage are yet remitted finally and in all respects to the status of unmarried persons with all the capacity that belongs to the status.

[page 624] 26.79 However, if the restraint is not merely a temporary restraint to prevent a premature remarriage before the time for appealing has expired, and has the effect of penalising one of the parties to the marriage, it will not be given extraterritorial effect. Thus, in In the Marriage of Mustafa,120 Baker J disregarded a prohibition imposed by the Cypriot court of the domicile on the husband from remarrying for 12 months after the dissolution granted by that court to the wife.121 _________________________ 1.

Until 2005, a divorce order was styled a ‘decree of dissolution of marriage’. In the Family Law Act s 4(1), ‘divorce’ is now defined to mean a termination of marriage otherwise than by the death of a party to the marriage.

2.

Acts Interpretation Act 1901 (Cth) s 2B.

3.

Family Law Act s 4(1).

4.

Family Law Act s 7.

5.

Family Law Act s 39(8).

6.

Henry v Henry (1996) 185 CLR 571; see also In the Marriage of AV & P Kemeny (1998) 23 Fam LR 105; Cashel v Carr (2005) 34 Fam LR 256; Navarro v Jurado (2010) 44 Fam LR 310; see further and generally Chapter 8.

7.

See note 6 above.

8.

(1990) 171 CLR 538, applied in In the Marriage of Gilmore (1993) 16 Fam LR 285. See also Nygh,

‘Voth in the Family Court: Forum Conveniens in Property and Custody Litigation’ (1993) 7 AJFL 260. 9.

(1988) 165 CLR 197 at 247.

10. Henry v Henry (1996) 185 CLR 571 at 588–9, disapproving In the Marriage of Gilmore (1993) 16 Fam LR 285; Kemeny v Kemeny (1998) 23 Fam LR 105. 11. Kemeny v Kemeny (1998) 23 Fam LR 105; D v L [2005] FamCA 479; (2005) FLC ¶93-225 (Finn, May and Boland JJ); SLR Van Londen v Dobson [2005] HCATrans 1007; Garrett & Cowell [2007] FamCA 778; Navarro v Jurado (2010) 44 Fam LR 310; see also S v S (Divorce Staying Proceedings) [1997] 2 FLR 100, at 114; cf. Pagliotti v Hartner (2009) 41 Fam LR 41. 12. Pagliotti v Hartner [2009] FamCAFC 18; (2009) 223 FLR 121; (2009) FLC ¶93-393; (2009) 41 Fam LR 41, at [126] (Australia clearly inappropriate for determination of maintenance rights which had been litigated in Italy, or beneficial ownership of Italian assets, but not for determination of beneficial entitlements to Australian property). 13. [1966] QWN 5. See also Cherry v Cherry [1971] 1 SASR 148; Di Mento v Vasalli (1973) 1 ALR 351. 14. Cowen and Da Costa, Matrimonial Causes Jurisdiction, Law Book Co, Sydney, 1961, p 43. 15. Tracy v Tracy (1939) 39 SR(NSW) 447. 16. See also Cherry v Cherry (1970) 17 FLR 421. 17. It would seem that a decree of judicial separation made outside Australia could still be recognised in Australia, although the remedy is no longer available here: James v Minister for Immigration & Multicultural Affairs [2001] FCA 909. 18. This Convention entered into force 24 August 1975 and was ratified by Australia in 1985. There are 18 contracting states: Australia, People’s Republic of China, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, Slovakia, Sweden, Switzerland, United Kingdom and Northern Ireland. 19. Family Law Act s 104(3)(a). 20. Family Law Act s 104(3)(b). 21. The divorce-friendliness of Nevada is no myth. The District Court of any county of that state has jurisdiction to grant a divorce if the applicant was resident in the state for six weeks. 22. In the Marriage of Barriga (No 2) (1981) 7 Fam LR 909. 23. Family Law Act s 104(3)(c). 24. Family Law Act s 104(3)(d). 25. Cf. Torok v Torok [1973] 1 WLR 1066; 3 All ER 101. 26. Family Law Act s 104(3)(e)(i). 27. Family Law Act s 104(3)(e)(ii). 28. Family Law Act s 104(3)(f). 29. For a brief description of get divorce, dispelling the notion that it is in some way an ‘informal’ process, and making clear that it is available to the wife as well as the husband, see Berkovits v Grinberg [1995] 2 All ER 681 at 695–6 per Wall J, quoting Rabbi Berkovits, the Dayan of the Rabbinical Court of the Federation of Synagogues in London. 30. Pemberton v Hughes [1899] 1 Ch 781. 31. (1969) 16 FLR 231 at 232 (ACTSC). 32. Pemberton v Hughes [1899] 1 Ch 781.

33. Manning v Manning [1958] P 112. 34. Mandel v Mandel [1955] VLR 51. 35. Lee v Lau [1967] P 14. 36. Russ v Russ [1964] P 315. 37. Russ v Russ [1964] p 315. Qureshi v Qureshi [1972] Fam 173. 38. Hassan v Hassan [1978] 1 NZLR 385. 39. Garthwaite v Garthwaite [1964] P 356. 40. [1953] P 246. 41. [1969] 1 AC 33. 42. Robinson-Scott v Robinson-Scott [1958] P 71. 43. [1957] VR 17. 44. (1963) 63 SR (NSW) 442; [1963] NSWR 129. 45. Nicholson v Nicholson [1971] 1 NSWLR 1; Bishop v Bishop [1971] 1 NSWLR 300; Suko v Suko [1971] VR 28; In the Marriage of Dornom (1984) FLC �91-556. 46. (1981) 7 Fam LR 909 at 916–17. 47. [1969] 1 AC 33 at 104 per Lord Wilberforce. 48. In the Marriage of Barriga (No 2) (1981) 7 Fam LR 909 at 916 per Baker J. 49. Nicholson v Nicholson [1971] 1 NSWLR 1. 50. Mayfield v Mayfield [1969] P 119. 51. Blair v Blair [1968] 3 All ER 639. 52. Welsby v Welsby [1970] 2 All ER 467; Munt v Munt [1970] 2 All ER 516. 53. In the Marriage of Dornom [1984] FLC ¶91-556. 54. Suko v Suko [1971] VR 28. 55. In the Marriage of Barriga (No 2) (1981) 7 Fam LR 909. 56. Peters v Peters [1968] P 275. 57. [1971] P 322. 58. [1959] P 43. 59. [1906] P 135. 60. [1899] 1 Ch 781. 61. Krause v Krause (1940) 26 NE 2d 290; Carbulon v Carbulon (1944) 57 NE 2d 59. The principle applies when the ‘foreign’ court is that of another United States state, but not when it is a court outside the United States that would not otherwise have jurisdiction: see Caldwell v Caldwell (1948) 81 NE 2d 60. See, generally, Restatement (Second) of Conflict of Laws s 74; Clark, ‘Estoppel Against Jurisdictional Attack On Decrees of Divorce’ (1960) 70 Yale LJ 45. 62. Burnfiel v Burnfiel [1925] 3 DLR 935; Re Plummer [1942] 1 DLR 34; but see contra: Fife v Fife (1964) 49 DLR (2d) 648. 63. [1967] SASR 303. 64. Re Capon (1965) 49 DLR (2d) 675 at 689–92 per Schroeder JA. See also note in (1968) 42 ALJ 230.

65. Salvesen v Administrator of Austrian Property [1927] AC 641. 66. Abate v Abate [1961] P 29. 67. [1963] P 283. 68. Mitford v Mitford [1923] P 130; Corbett v Corbett [1957] 1 All ER 621; Merker v Merker [1963] P 283 at 297 per Sir Jocelyn Simon P. 69. Corbett v Corbett [1957] 1 All ER 621; Merker v Merker [1963] P 283. 70. [1976] Fam 155. 71. [1979] Fam 84. 72. [1981] Fam 77; affirmed by the House of Lords: [1983] 1 AC 145. 73. Ainslie v Ainslie (1927) 39 CLR 381. 74. Perry v Perry [1947] VLR 470. 75. Alexsandrov v Alexsandrov [1967] SASR 303. 76. [1971] P 255. 77. Le Mesurier v Le Mesurier [1895] AC 517. 78. [1971] P 255, 260D. 79. See 26.61–26.73 below. 80. Harris v Harris [1947] VLR 44; Terrell v Terrell [1971] VR 155. 81. Lawrence v Lawrence [1985] Fam 106 (CA) at 126 per Purchas LJ. 82. Family Law Act s 104(7)(b). 83. Norman v Norman (No 2) (1968) 12 FLR 39 (ACTSC). 84. [1971] VR 28. 85. Lawrence v Lawrence [1985] Fam 106 (CA) at 126 per Purchas LJ. 86. See 40.47–40.52 below. 87. Norman v Norman (No 3) (1969) 16 FLR 231 at 243 (ACTSC) per Fox J. See, for example, El Oueik v El Oueik (1977) 3 Fam LR 11,351 (NSWSC, Toose J) (recognition of foreign divorce refused because no notice given to respondent). 88. Joyce v Joyce [1979] Fam 93. 89. Newmarch v Newmarch [1978] Fam 79 at 90–4. 90. [1990] Ch 433 at 569. 91. Grissom v Grissom [1949] QWN 52. 92. [1963] NSWR 1371. 93. Terrell v Terrell [1971] VR 155. 94. Hornett v Hornett [1971] P 255. 95. Newmarch v Newmarch [1978] Fam 79. 96. [1951] P 404. 97. See note 96 above, at 412. 98. Gray (otherwise Formosa) v Formosa [1963] P 259 (where a Maltese court had declared void the marriage, in England, of a Roman Catholic, where that marriage had been solemnised in a building

other than a Roman Catholic Church); but cf. Lepre v Lepre [1965] P 52, and Vassallo v Vassallo [1952] SASR 129, in which the Supreme Court of South Australia recognised as valid a Maltese decree of annulment, on the same grounds, of a marriage celebrated in South Australia. 99. [1967] P 62 at 70. 100. [1971] P 298. 101. [1977] Fam 208. 102. [1963] P 259. 103. [1985] Fam 19. 104. [1972] Fam 173. 105. [1983] 1 AC 145. 106. [1983] 1 AC 145, at 156–7 per Lord Hailsham LC, at 164 per Lord Simon, at 167 per Lord Brandon; Lords Diplock and Keith confined their concurrence to the res judicata issue. 107. Corbett v Corbett [1957] 1 All ER 621 at 624; Merker v Merker [1963] P 283. This view is supported by Cheshire, North and Fawcett, Private International Law, 14th ed, Oxford University Press, Oxford, 2008, pp 1019–20. 108. [1971] P 322. 109. (1977) 3 Fam LR 11,351. 110. See note 109 above, at 11,356. 111. See note 110. 112. See note 109 above, at 11,356: ‘Even if I were wrong in my finding as to the petitioner [meaning the Australian petitioner, the wife] not being ordinarily resident in the Lebanon at the relevant date …’. 113. (1969) 16 FLR 231 at 245 (ACTSC). 114. [1978] 1 NZLR 385 at 392. 115. [1900] 2 Ch 262. 116. 12 & 13 Vict. c. 68. 117. [1963] P 283 at 299. 118. For example, as was found in the Matrimonial Causes Act 1929 (SA) s 17. 119. (1954) 92 CLR 406 at 415. 120. (1981) 7 Fam LR 711. 121. Cf Scott v Attorney General (1886) 11 PD 128.

[page 625]

Chapter 27

Matrimonial Property and Financial Relief Introduction 27.1 This chapter is concerned with the private international law aspects of the property and financial consequences of marriage and the breakdown of marriage and marriage-like relationships, including the matrimonial property relationship, property division on relationship breakdown, and maintenance and support of spouses and children.

Matrimonial Property 27.2 Matrimonial property regimes vary from country to country and, within the United States of America, from state to state. Some legal systems1 impose a community property regime as an incident of marriage, either from its inception or upon death or divorce, and frequently subject to the contrary agreement of the parties. Under Australian law, however, marriage of itself has no effect on the property of the spouses. Since the enactment of Married Women’s Property legislation at the end of the nineteenth century, each spouse continues to own his or her separate property, unless they agree to hold specific assets in joint ownership. 27.3 There has been a tendency to apply this legislation to persons domiciled abroad at the time of their marriage,2 but this is clearly wrong, and (except where authorised to adjust existing rights, as under s 79 of the Family Law Act 1975 (Cth) (Family Law Act)), the local court must declare existing rights, whether derived from local or foreign law.3 Spouses who have commenced their

matrimonial relationship abroad may for that reason have accrued matrimonial property rights different from those that arise under Australian law. In such circumstances, it may [page 626] be necessary to determine which law governs the matrimonial property rights of the spouses, although this will usually be of little practical relevance because, whatever the matrimonial property regime, the Family Law Act s 79 will almost invariably be available to authorise the alteration of the property rights of the spouses, unaffected by whatever their pre-existing property rights may be.

The Creation of the Matrimonial Property Relationship Movables 27.4 Where the parties do not agree to the contrary, the matrimonial property regime governing their movable assets is prima facie determined by the law of the matrimonial domicile at the time of marriage.4 27.5 If the spouses, at the time of the marriage, are both domiciled in the same country (which will typically be the case), then that country is the matrimonial domicile. It is where the parties have different antenuptial domiciles that issues may arise. Formerly, in such a case, the matrimonial domicile was presumed to coincide with the domicile of the husband at the time of the marriage.5 This rule made sense when the wife’s domicile was, by operation of law, dependent upon that of the husband, but it is no longer acceptable; the abolition of the wife’s dependent domicile has removed the basis for the presumption, and the law of the matrimonial domicile, where the parties do not share a common domicile at the time of marriage, should be that country with which the parties and the marriage have the closest connection, equal weight being given to the connections of each party (but not necessarily to each connecting factor), so as to ascertain the ‘centre of gravity’ of the marriage.6 In this, the location of the matrimonial home will be an important factor, but the intentions of the parties regarding their future home are no more than an indication of an implied choice

of law.7 27.6 The spouses can, by express agreement, select the law of a country other than that of the initial matrimonial domicile. Even when there is no express agreement, the court may infer that the parties intended that the law of some future matrimonial domicile should apply. The exact circumstances in which such an inference can be drawn are as yet unsettled. In Re Egerton’s Will Trusts8 a man domiciled in England had married a Frenchwoman. At the time of the marriage they had agreed that they would establish their matrimonial residence in France as soon as possible. Nothing, [page 627] however, was said about their matrimonial property relationship. After two years they did in fact settle in France, where the husband eventually died domiciled. The widow claimed that the French system of community property applied. However, Roxburgh J refused to infer from these circumstances that the parties had at the time of their marriage intended that French law should be applicable to the matrimonial property relationship. As his Lordship saw it,9 a reference to a law other than that of the husband’s domicile at the time of the marriage was possible only where ‘an inference was to be drawn from all the circumstances of the case that the law of the new domicile was intended to apply as from the date of the marriage’. Such an inference might be drawn where the parties contemplated an immediate change of domicile, but not where, as in the instant case, the change was contemplated only at some unspecified future time. 27.7 As the words ‘all the circumstances of the case’ indicate, other circumstances can be relevant. Thus, his Lordship contrasted, on the one hand, the case of a comparatively poor couple who emigrated immediately after marriage from England to Australia — in which case he thought that it might well be inferred that the parties intended their matrimonial property relationship to be governed by the law of their new matrimonial domicile10 — with, on the other hand, the case of an elderly widower of substantial means who married a young wife and, being ill and in need of a warm climate, left immediately to take up his home in South Africa, in which circumstances, his Lordship thought11 a court would not infer that the husband intended all his proprietary rights to be governed by the law of South Africa.

The effect of a change of matrimonial domicile 27.8 If the parties have entered into an express marriage contract, the applicable law, whether expressly agreed upon or objectively ascertained, remains constant, and is per se not affected by a subsequent change of domicile.12 However, if the initially applicable law permits it, the parties may vary the terms of their agreement, including the governing law. Thus, in Duyvewaardt v Barber13 the Court of Appeal of British Columbia held that a Belgian couple, who had entered into a marriage contract in Belgium before emigrating to British Columbia, could, by permission of Belgian law as amended, vary their contract in any way which was effective under the law of their new domicile, British Columbia. 27.9 Where the applicable matrimonial property regime is determined not by agreement but by the law of the first matrimonial domicile, will a subsequent change of domicile effect a change in the applicable regime, or is the original regime immutable? At first, the House of Lords seemed prepared to allow a regime imposed by law to be changed. In Lashley v Hog14 the House of Lords, sitting on appeal from Scotland, was dealing with the estate of a man of Scottish birth who had married his [page 628] wife in England whilst he was domiciled there. Later, he returned to Scotland and resumed his former Scottish domicile. After his death, his daughter claimed to be entitled to her mother’s share under the Scottish system of communiobonorum, which entitled the widow to a stated proportion of the aggregate movable estate vested during marriage in the husband. The House of Lords upheld the daughter’s claim, treating it as a matrimonial property right which was, at the date of the husband’s death, governed by the law of Scotland where he was then domiciled. However, this was founded on a theory of an implied contract that the applicable law would be that of the matrimonial domicile from time to time; as Lord Eldon put it: The implied contract is, that the rights of the wife shall shift with the change of residence of the wife, that change of residence being accomplished by the will of the husband whom by the marriage contract, in this instance, she is bound to obey.15

27.10 Almost 100 years later, the House of Lords, in De Nicols v Curlier (No

1),16 declined to follow that approach. In that case, the spouses had married in France, where both were then domiciled. They did not enter into a marriage contract. Later, they moved to England, where the husband died domiciled, having amassed in England a considerable fortune comprising both movable and immovable property. His widow claimed to be entitled to half the estate by reason of her share in the community property under French law. The House accepted evidence given by a French lawyer that, under French law, there was a ‘tacit contract’ between the spouses, establishing a regime of community property in the terms of the French Civil Code, if they did not enter into an express marriage contract. Treating the French institution as analogous with marriage settlements under English law, the House proceeded to deal with the case as if the parties had entered into a marriage settlement governed by the law of France. Lord MacNaghten said:17 If there is a valid compact between spouses as to their property whether it be constituted by the law of the land or by convention between the parties it is difficult to see how that compact can be nullified or blotted out merely by change of domicile.

27.11 The decision in Lashley v Hog was explained as relating to a right of succession on death, to which the law of the husband’s last domicile was correctly applied.18 However, that was not the basis upon which Lord Eldon had decided the earlier case.19 27.12 The decision in De Nicols v Curlier really depends on its acceptance of the evidence that by French law, an implied contract was established between the spouses. It seems that, today, at least some French lawyers take the view that community property is imposed by operation of law, as distinct from by ‘tacit contract’.20 [page 629] Furthermore, as one learned commentator has pointed out,21 the ‘tacit contract’ interpretation has never been shared by lawyers from other civil law countries, such as the Netherlands. For these reasons, the decision in De Nicols v Curlier is not authoritative in relation to matrimonial property regimes imposed by operation of law.22 However, Lashley v Hog also appears to involve an implied contract — albeit one in terms that provide for the rights to change with the domicile; thus, it too may be considered as not authoritative in relation to regimes imposed by operation of law.

27.13 In Australia, the question was considered by Nygh J in In the Marriage of Hannema,23 in which the parties — whose initial matrimonial domicile was in the former Dutch East Indies, by then Indonesia — had entered into an express marriage contract under the law of that country which derogated from the community of property system otherwise applicable to married couples. Some years later, they migrated to Australia, where they lived most of their married life. Since there was an express marriage contract, Nygh J held that the applicable law had not changed with the change of matrimonial residence. His Honour expressly reserved the situation that might have arisen had the parties married without having entered into an express marriage contract.24 As will usually be the case, however, the point was of little practical relevance, since the rights and obligations of the parties as determined by Indonesian law were subject to adjustment under the Family Law Act s 79.25 The issue left open by Nygh J in Hannema was, however, considered by the New South Wales Court of Appeal in Murakami v Wiryadi,26 in which the matrimonial domicile was again Indonesia, under the law of which, in the absence of a pre-nuptial agreement, property acquired during the marriage (but not assets held by either spouse prior to the marriage) is held as common matrimonial property (or harta gono-gini) and divided equally upon divorce. As in De Nicols v Curlier, the spouses could have but did not contract out of the community property regime. Spigelman CJ, with whom McColl and Young JJA agreed, held that the ‘implied contract’ approach was supported by authority, referring with apparent approval to an earlier edition of this work,27 and rejected the description of such a contract by Dicey, Morris & Collins as “fictitious”, expressing the view that such a contract could be inferred from conduct, and should be so inferred where the reasonable expectation of the parties to an Indonesian marriage was that their property rights would be determined on the basis of the community property system.28 Subsequently, Dicey, Morris & Collins have suggested that this analysis, which avoids examining whether Indonesian law imposes a contract on the parties but rather treats them as bound by contract to [page 630] the matrimonial property regime which they reasonably expected to apply to them when they married, calls into question the supposed distinction between contractual and non-contractual matrimonial property regimes.29 In truth, Murakami v Wiryadi does not go so far, and the notion that the law of the

matrimonial domicile created a contractual right with respect to foreign real estate was important to the decision.30 However, it at least establishes that where the lex domicilii matrimonii provides for a community property regime to apply in default of contrary agreement, and the parties have made no contrary agreement, they are to be treated as having positively chosen that regime,31 and that, in such a case, a change in the matrimonial domicile will not alter the matrimonial property regime. 27.14 In the United States, the accepted rule is that ‘marital interests in movables acquired during coverture are governed by the law of the domicile at the time of their acquisition’.32 According to this principle, a change in the matrimonial domicile will affect title to assets acquired thereafter, but will not change or destroy rights to property acquired previously. Thus, a right of separate ownership acquired in a common law state is not lost by reason of a subsequent change of domicile to a community property state.33 Conversely, in principle, joint property rights acquired in a community state would not be dissolved merely by a change of domicile, or even of situs, to a common law state that knew only separate property.34 If, as well as the domicile, the situs of the goods also changes, there arises the problem of how to translate community property rights into common law terms. Leflar, McDougal and Felix35 suggest that the common law notion of a tenancy in common be employed as the nearest analogy.36 27.15 There is much to be said for the United States approach. Though there are obviously problems involved in a dichotomy of property rights, it has worked reasonably well in the United States, and provides a just solution to a complicated problem.37 However, it has the disadvantage that multiple matrimonial property regimes may apply to a single marriage. 27.16 In order to effect any change, the new matrimonial domicile must become the joint home of the spouses. It can no longer be correct to say, as Lord Eldon did in Lashley v Hog, that the unilateral decision of the husband determines the matrimonial residence. Furthermore, the law of the new matrimonial domicile must [page 631] permit the change. At the time when Re Egerton’s Trusts was decided, French law applied a doctrine of strict immutability. Hence, under French law, the

matrimonial property regime (be it English or French) adopted by the spouses at the time of the marriage continued to apply, even though the parties later moved their matrimonial domicile to France. For that reason, counsel for the widow did not seek to argue that the change of domicile from England to France had altered the property relationship between the spouses.

Immovables 27.17 Although the lex situs must be referred to in the first instance — because of its capacity to render futile any conflicting law with respect to title to real property — if the parties have entered into an express marriage contract, the law governing that contract will also determine their rights in relation to immovables, so long as the lex situs permits it.38 In Re De Nicols39 (the sequel to the case heard by the House of Lords in De Nicols v Curlier), Kekewich J was concerned with the question of whether the French community property system established by the law of the matrimonial domicile at the time of marriage extended to freehold and leasehold property of the husband situated in England. Following the decision of the House of Lords in the same matter (in respect of moveables), his Lordship treated the French law as creating a tacit contract between the spouses, and on being assured that French law regarded foreign immovable property as included in the contract, held that the community property included the English immovables. Although earlier editions of this work have suggested that the application of a marriage contract to immovables outside the jurisdiction of the contract will not be inferred in the absence of clear contractual intent or expert evidence that the applicable law has that effect,40 Murakami v Wiryadi is indicative of a more liberal approach in this respect, as it does not require proof that the foreign law would imply a contract, but infers the existence of such a contract from the parties’ failure to contract out of the community property regime, and authorises the enforcement of that contract in the forum, so long as the lex situs permits it.41 27.18 Where there is no marriage contract, express or implied, the lex situs determines the applicable matrimonial property regime.42 This is supported by the reasoning in two decisions of appellate tribunals, which suggest that a community property title cannot be imposed on land, except in accordance with the lex situs.43 [page 632]

27.19 In the Scottish appeal of Welch v Tennent,44 an Englishwoman who owned a freehold estate in England married a Scot, without entering into a marriage contract. Under the law of England as it then stood, the husband obtained, by virtue of the marriage, an interest in the realty of his wife; but under the contemporary law of Scotland, the realty remained the separate property of his wife. When the land was sold, the wife allowed the husband to receive the proceeds. The wife subsequently claimed that the proceeds were hers, by virtue of Scottish law, and that her permission to the husband to receive the proceeds amounted to a gift between husband and wife, which was not permitted by Scottish law. The House of Lords, however, held that the rights of the wife to English land could not be divorced from English law, and since, by English law, the husband acquired an interest in the land upon marriage, he had an interest in the proceeds, which entitled him to receive the money. The general principle was stated by Lord Herschell to be as follows:45 There can be no doubt … that the rights of the spouses as regards movable property must, in the circumstances of the case, be regulated by the law of Scotland, but it is equally clear that their rights in relation to heritable estate are governed by the law of the place where it was situated.

27.20 More recently, in Callwood v Callwood,46 the Privy Council, on appeal from the British West Indies, had to consider the effect of a community property regime created under the law of the Danish West Indies, the matrimonial domicile of the spouses, on land situated in a British territory where the law of England applied. The Board did not have to resolve the question, by reason of holding that, in the absence of evidence that the Danish community property law was intended to apply to land situated outside Danish territory, it should be assumed that it did not — a presumption in which is inherent a strong bias in favour of the application of the lex situs. But their Lordships added an observation suggesting that, had the question been reached, the approach taken in Welch v Tennent would have prevailed:47 Even if there had been proof of the inclusion of Great Thatch Island in the joint estate according to the relevant Danish law, and granting the adequacy of the joint will in point of form and execution to create with respect to Great Thatch Island, as part of the joint estate, the beneficial interest which it purported to confer on the plaintiff, there would still have remained the difficult question whether it would have been proper in the circumstances of this case to resolve the conflict between English law and Danish law with respect to the devolution of Thatch Island otherwise than by applying the lex situs (ie English law) in accordance with the general rule.

27.21 The application of the lex situs in such circumstances is also supported by the decision of the Court of Appeal of British Columbia in Tezcan v Tezcan.48 In that case, the parties’ matrimonial domicile was Turkish, but the wife sought to assert rights under the law of British Columbia in respect of immovables

owned by the husband in that province. The parties had not entered into a marriage contract in [page 633] Turkey, and since Turkish law did not accept the notion of a ‘tacit contract’, the court held that the law of the place of situation prevailed.49 Re de Nicols was followed, and Welch v Tennent and Callwood v Callwood were distinguished, by the New South Wales Court of Appeal in Murakami v Wiryadi, where the key distinction between the two lines of authority was the presence in the former, and absence from the latter, of a situation in which the law of the matrimonial domicile created a contractual right with respect to foreign real estate.50 In turn, Murakami v Wiryadi has been followed in the High Court of England and Wales in Slutsker v Haron Investment Limited.51 Accordingly, in Australia, the position is that the lex situs provides the matrimonial property regime applicable to immoveables where the parties have not expressly or implicitly chosen the law of their matrimonial property regime, for which purpose they will be taken to have chosen the regime provided by the law of the matrimonial domicile if, having had an opportunity to contract out of it, they did not do so. 27.22 In the United States, the courts have traditionally distinguished between movable and immovable property. Leflar, McDougal and Felix52 state the traditional rule that, in the absence of a controlling pre-nuptial contract, the whole law of the situs, including its choice-of-law rules, determines what marital interests exist in an immovable asset acquired by a party to a marriage. On the other hand, Ehrenzweig53 says that there is no reason to accept this rule as axiomatic with regard to matrimonial property, since the courts may yet be induced to subject immovables in whole or in part to the law of the matrimonial domicile. However, the distinction is so deeply ingrained, that it is difficult to envisage anything short of legislative intervention removing it.54

Property Division on Marriage Breakdown Jurisdiction

27.23 Proceedings for the adjustment of property rights under the Family Law Act s 79, can be brought in the Family Court of Australia,55 the Supreme Court of a state or territory,56 and (subject to some limitations) the Federal Circuit Court [page 634] of Australia (formerly the Federal Magistrates Court of Australia),57 or a court of summary jurisdiction of a state or territory,58 if either party to the marriage is, at the time of institution of proceedings, an Australian citizen, is ordinarily resident in Australia or is present in Australia.59 Proceedings cannot be instituted in a court of a territory unless at least one of the parties is, at the date of institution of proceedings, ordinarily resident in that territory.60 The Family Court of Western Australia is also invested with federal jurisdiction if the above conditions are satisfied.61 27.24 Proceedings may be brought in Australia, even though the marriage was dissolved or annulled overseas or the parties are legally separated according to an overseas decree or process which is recognised as valid in Australia under the Family Law Act s 104,62 provided the proceedings are ‘in relation to’ such overseas divorce, annulment or separation.63 And even if the overseas decree or process is not entitled to recognition in Australia, an Australian court may exercise jurisdiction if the matter can be said to arise out of the marital relationship,64 which captures the entire relationship between the parties before, during and after the formal tie of marriage was created or dissolved.65When the relevant decree has been pronounced overseas, the 12-month limitation period for the institution of financial proceedings imposed by the Family Law Act s 44(3) does not apply.66

Extra-territorial jurisdiction 27.25 Jurisdiction in family law is personal. Ordinarily, jurisdiction of a court in personam depends upon presence of the respondent in the jurisdiction. However, the Family Law Act s 31(2) provides that, subject to such restrictions and conditions (if any) as are contained in s 111AA,67 the regulations or the standard Rules of Court, the jurisdiction of the Family Court may be exercised in relation to persons

[page 635] or things outside Australia and its territories. This gives the Family Court extra territorial jurisdiction, for the purposes of Australian domestic law, over persons and corporations outside Australia, not only in proceedings for property settlement, but also in relation to ancillary applications thereto.68 27.26 However, at least under the common law of Australia (and England), the circumstance that a court has extra-territorial jurisdiction under its domestic law does not necessarily have the consequence that the judgment will be recognised as one of a court of competent jurisdiction by a foreign court. Generally speaking, a court will be one of competent jurisdiction for that purpose only if the respondent is present in the jurisdiction, or submits to the jurisdiction. Ultimately it will be for the foreign court to determine whether, according to its own rules of private international law, the Family Court of Australia was one of competent jurisdiction in respect of a decree, particularly where the respondent was neither present in Australia, nor submitted to its jurisdiction. 27.27 As the jurisdiction of the Family Court is in personam, there is no objection in principle to the exercise of jurisdiction in respect of assets whether movable or immovable outside the jurisdiction.69 Thus, in respect of real property situated overseas, an order that one spouse transfer his or her interest to the other is not an exercise of jurisdiction in respect of title to or possession of foreign land, but an order in personam against the repondent, and so would not offend the Moçambique rule.

Declining jurisdiction — forum non conveniens 27.28 In determining whether the court should decline jurisdiction on forum non conveniens grounds, the Family Court will apply the principle laid down by the High Court in Voth v Manildra Flour Mills Pty Ltd;70 namely, that it should only decline jurisdiction if Australia is a ‘clearly inappropriate forum’, which is to be determined by considering whether continuation of the proceedings would be ‘oppressive’ or ‘vexatious’ in the extended sense in which those words were used by Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay.71 While the substantive law of the forum is a very significant factor in the exercise of the court’s discretion, it is not the case that the selected forum will never be inappropriate even though it is fairly arguable that its substantive law is applicable. And while the prima facie right of a party to have proceedings

continue in a regularly-invoked jurisdiction can be a relevant factor, its significance will vary from case to case, so that it might be decisive in an otherwise finely balanced contest, but of little significance where the [page 636] forum selected is otherwise clearly inappropriate.72 In family law proceedings, the circumstance that the law of Australia may give some advantage to the applicant is of less significance than in commercial litigation, whereas considerations of the parties’ respective ability to litigate in the competing forums (having regard to issues such as the language in which proceedings will be conducted), may loom larger; and the need to treat issues between husband and wife arising out of the matrimonial relationship and its breakdown as a single controversy tells strongly against permitting parallel proceedings in more than one jurisdiction.73 However, it does not follow from a conclusion that Australia is a clearly inappropriate forum for the determination of one category of matrimonial cause between the parties that it is necessarily a clearly inappropriate forum for all other categories of matrimonial cause between them.74 Other relevant factors include the location of the predominance of the assets, and any need for further proceedings in the foreign jurisdiction if enforcement were to be effective.75 It will also be a significant factor favouring a particular jurisdiction if it to the exclusion of the alternative, can effectively deal with a particular asset, such as a pension76 or immovable property.77

Anti-suit injunctions 27.29 The Family Court of Australia will grant an anti-suit injunction to restrain a party from taking proceedings for financial relief in an overseas jurisdiction where such proceedings are vexatious or oppressive. Similar considerations inform the exercise of this discretion as inform that to stay proceedings on forum non conveniens grounds, including the need to treat issues between husband and wife arising out of the matrimonial relationship and its breakdown as a single controversy; the existence of pending proceedings for the same type of relief in Australia; that all the issues can be determined in Australia; and that the foreign jurisdiction affords significant advantages (including in language and in law) to the ability of one party to litigate over the other.78

27.30 The Family Court of Australia also has power to restrain the institution and continuation of proceedings before a state court.79 This power derives from [page 637] the Family Law Act s 34, and/or from the inherent or implied jurisdiction of the court to make orders which are necessary or appropriate to avoid injustice.80 The court will exercise this power with restraint and circumspection and having regard to considerations of comity,81 but will do so where the exercise of jurisdiction by the state court would defeat rights under the Family Law Act,82 or where it is necessary to protect the integrity of the proceedings or processes of the Family Court.83

Choice of law 27.31 Once a matter within the definition of “matrimonial cause” enlivens the jurisdiction of the Australian Court, the Court applies Australian law. Thus, where a court having jurisdiction under the Family Law Act exercises jurisdiction, it will apply its own law to the determination of the dispute, and may adjust the property rights of the parties regardless of any rights acquired or vested in them by foreign law,84 although it should take care not to make any order in relation to assets situated abroad that might operate in direct conflict with the laws of the country of situation, conformably with the principle that courts acting in personam will not make orders that would require the respondent to do something that was illegal in the place in which it was to be done.85

Recognition 27.32 There is little authority on the recognition of foreign orders for matrimonial property division. Traditional authority supports the proposition that the recognition and enforcement of orders for property division which are made ancillary to decrees for principal relief stands or falls with the recognition of the decree for principal relief.86 While that may have been understandable when proceedings for ‘ancillary’ relief were conducted in conjunction with the proceedings for ‘principal’ relief, nowadays the better view is that such an order is one in personam and recognisable and enforceable according to the principles

applicable to judgments in personam. This view was advanced as long ago as 1926 by MacGregor J in the New Zealand case of Redhead v Redhead,87 where his Honour refused to enforce an order for costs made by an English court in English divorce proceedings against a New Zealand [page 638] co-respondent. His Honour treated the order for costs as a separate judgment in personam, for which jurisdiction was lacking, since neither had the corespondent been served in England with process, nor had he submitted to the jurisdiction. Although no reference was made to Phillips v Batho,88 the decision has gained the approval of most textwriters, and Phillips v Batho has been widely criticised and is considered wrong.89 The approach in Redhead v Redhead better accords with the in personam nature of matrimonial property proceedings, and accommodates the not infrequent practical problem of socalled ‘ancillary’ proceedings for financial adjustment being conducted in a jurisdiction other than the one in which the ‘principal’ relief by way of divorce is obtained. On that approach, the jurisdiction of a court to make an order for property settlement must be separately founded under the relevant rules applying to judgments in personam. The decision of the National Court of Papua New Guinea in Van der Kreek v Van der Kreek90 in which recognition was granted to an ancillary order for property settlement made in Australia was founded both on the jurisdiction of the Australian court in the divorce proceedings, and on the personal appearance of the respondent. 27.33 The principal Australian case dealing with the recognition of an overseas order for property settlement is In the Marriage of Miller and Caddy.91 In that case, the wife had brought proceedings for the division of family assets in California, at a time when both parties were resident in that state. The application was made in conjunction with an application for dissolution, but nothing seems to have turned on that. In accordance with the community property system of California, the Californian court effected an equal division of the assets of the parties, including certain assets situated in Australia, one of which was a jointly owned home unit in Sydney. The Californian court ordered the husband to make certain payments to the wife to equalise the division of assets, but confirmed the parties in their ownership of the half interest in the home unit. Several years later, the wife, having returned to Australia to live, brought proceedings under s 79, seeking orders in respect of the home unit. The

Full Court of the Family Court of Australia held that the Californian judgment was entitled to recognition in Australia on the ordinary rules relating to judgments in personam. Consequently, the wife was estopped per rem judicatam from bringing a further action for property adjustment, even though the law applicable on such an application in Australia differed from that applicable in California. 27.34 In Miller and Caddy, the Californian court did not purport to alter the interests of the parties in the home unit. The question of whether an Australian court would give effect to such an order appears to have been answered, at least as regards movable property situated in Australia, in Kemeny v Kemeny,92 where the Full Court of the Family Court of Australia followed Miller and Caddy in holding that a wife was estopped from bringing an action for property adjustment in Australia in relation [page 639] to property that had previously been the subject of orders for property division made by the Superior Court of New Jersey, affirmed on appeal in that jurisdiction.93 Kemeny was explained and distinguished in Pagliotti & Hartner94 as a case in which the adjustment of property rights consequent upon the breakdown of marriage had been fully and finally determined by the foreign court. In Pagliotti & Hartner there had been extensive litigation in which both parties had voluntarily participated in the Ordinary Tribunal of Rome, including divorce and maintenance, but there was no final determination of property rights, at least in respect of a property situate in Australia; accordingly, the Full Court of the Family Court of Australia held that proceedings under Family Law Act ss 78 and 79 in respect of their Australian property were not precluded.95 In Kemeny, the Full Court did not have to decide whether it could enforce the New Jersey orders for the transfer of assets in Australia other than by payment of money, had one of the parties refused to comply. As to foreign orders in relation to immovable property situated in Australia, in In the Marriage of Gilmore96 Fogarty J pointed out practical difficulties in enforcing an Australian order in relation to immovable property situated in New Zealand in that country and vice versa.97 However, remembering that such an order is one in personam, it is not apparent why an Australian court would not enforce such a foreign order against a party present in Australia, if the foreign decree was entitled to recognition, on the same basis that Australian courts enforce foreign judgments in equity.98

De Facto and Same-Sex Relationships 27.35 Prior to 1 March 2009, financial adjustment between parties to de facto and same-sex relationships was the province of the states and territories, all of which had made legislative provision in respect of de facto relationships, defined in terms that include same-sex marriage-like relationships.99 [page 640] 27.36 In most states, the legislation requires some personal connection to the state as a basis for jurisdiction. Thus the Property (Relationships) Act 1984 (NSW) s 15100 provides that an order for property settlement shall not be made unless the court is satisfied (a) that either or both parties were resident in New South Wales on the day the application was made; and (b) either or both parties were resident in New South Wales for a substantial period of the relationship, or substantial financial, homemaking or other contributions were made in New South Wales by the applicant. The requirement of residence for a substantial period is taken to be satisfied if the parties have lived together in the state for one-third of the duration of their domestic relationship.101 27.37 The applicable law, once the court has assumed jurisdiction, is the lex fori.102 27.38 No provision is made in any of the above legislation for the recognition and enforcement of orders made in other states or abroad. Such orders would be enforceable interstate under the Service and Execution of Process Act 1992 (Cth) s 105. Otherwise, in the absence of authority, it is submitted that the same principles should apply as do to matrimonial property orders; that is to say, orders under the legislation will be regarded as judgments in personam — at least in so far as they order the payment of money — and create the same estoppels as between the parties in relation to orders made abroad. 27.39 With effect from 1 March 2009, and consequent upon the referral of powers to the Commonwealth by all states other than South Australia and Western Australia, the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) makes provision for financial adjustment in respect of de facto relationships (defined to include same-sex relationships)103 which end on and after that date. The Commonwealth provisions operate as a

code and exclude jurisdiction under the state legislation where the parties qualify to apply under the federal law.104 Relevantly, an application can be made under the Commonwealth legislation only if (a) both [page 641] parties are ordinarily resident in a participating jurisdiction when the relationship breaks down; or (b) either or both of them are ordinarily resident in a participating jurisdiction at the date the application is made, and the parties have been ordinarily resident in such a jurisdiction for at least one-third of their de facto relationship, or the applicant has made substantial contributions in such a jurisdiction.105 27.40 Orders made pursuant to the Commonwealth provisions are enforceable throughout Australia and the external territories.106

Maintenance Spousal maintenance 27.41 Maintenance of a party to a marriage in Australia is governed by s 72 of the Family Law Act. Proceedings for the maintenance of a party to a marriage may be instituted in a court having jurisdiction under the Act if either party to the marriage at the date of institution of proceedings is an Australian citizen, or is ordinarily resident in Australia, or is present in Australia.107 If the court has jurisdiction, it will apply the law of the forum.108 Maintenance orders made under the Family Law Act have effect and are enforceable, under s 103, throughout Australia and its external territories.

Child support 27.42 Nowadays, the maintenance of children in Australia is almost entirely governed by the provisions for administrative assessment made by the Child Support (Assessment) Act 1989 (Cth),109 the effect of which is to exclude the jurisdiction of courts exercising jurisdiction under the Family Law Act, to make orders for child maintenance, except in situations where the Child Support

Scheme could not apply.110 The Scheme applies if (a) the child is present in Australia on the day on which application is made, or is an Australian citizen or ordinarily resident in Australia on that day;111 (b) the parent sought to be made liable is a resident of Australia on the day on which application is made;112 and (c) the applicant is a resident of Australia on that day.113 However, there are exceptions to these requirements if the applicant or the liable parent is in a country with which Australia [page 642] has reciprocal enforcement obligations,114 so that these requirements do not apply (in respect of the child and the liable parent) where the parent sought to be made liable is a resident of a reciprocating jurisdiction,115 or (in respect of the applicant) if the application is made to or by the overseas authority of a reciprocating jurisdiction in which the applicant is resident.116 27.43 The Scheme ceases to apply (a) if the child is no longer either present in Australia, or resident in Australia or an Australian citizen (but not if an international maintenance arrangement applies in respect of the child);117 (b) if the liable parent ceases to be a resident of Australia (but not if an international maintenance agreement applies in respect of that parent);118 (c) where an international maintenance agreement applies in respect of the carer and the child, the carer ceases to be a resident of a reciprocating jurisdiction and does not immediately thereafter become a resident of another reciprocating jurisidction or of Australia;119 and (d) where an international maintenance agreement applies in respect of the liable parent and the child, the liable parent ceases to be a resident of a reciprocating jurisdiction and does not immediately thereafter become a resident of another reciprocating jurisidction or of Australia.120 27.44 A parent in a reciprocating jurisdiction may apply to the Child Support Registrar (in the case of a carer, through the overseas authority of the reciprocating jurisdiction in which that parent is resident) for administrative assessment of child support in Australia, even if the child is neither present in Australia nor an Australian resident or citizen.121 This will be most significant if the liable parent is resident in Australia, but a person whether resident in Australia or in a reciprocating country may apply also if the person from whom support is sought is a parent of the child and is on the day when the application is made a resident of a reciprocating jurisdiction.122 Application may also be

made on behalf of a liable parent or eligible carer by an administrative or judicial authority of the reciprocating jurisdiction that is responsible for giving effect to an international maintenance arrangement.123 The procedure for recognition and enforcement of administrative assessment and maintenance orders from reciprocating countries is considered below.124 27.45 Special provisions apply as between Australia and New Zealand under the Agreement between the Government of Australia and the Government of New Zealand on Child and Spousal Maintenance made at Canberra on 12 April [page 643] 2000 (‘the Australia-New Zealand Agreement’). The Agreement applies where the payer is habitually resident in one of the two countries and the payee is habitually resident in the other.125 As between the two countries, a court having jurisdiction under the child support legislation has jurisdiction to make a decision in respect of child support or child and spousal maintenance if, at the date of the decision, the payee is habitually resident in Australia.126 The jurisdiction of the administrative authorities of each of the countries depends on its national law.127 However, the Child Support Registrar’s jurisdiction under the Child Support (Assessment) Act 1989 (Cth) ceases upon notification that a carer entitled to child support is habitually resident in New Zealand.128 An Australian court or the Child Support Registrar cannot make or modify a child support assessment if the payee has his or her habitual residence in New Zealand and there is in force a decision by a judicial or administrative authority of that country.129 The judicial and administrative authorities of each country are to apply their own national law.130

Child maintenance 27.46 In the now rare cases where the Child Support Scheme does not apply, child maintenance may be ordered under the Family Law Act s 66G, and in Western Australia, in relation to children to whom neither the Scheme nor the Family Law Act applies, under the Family Court Act 1997 (WA) s 117. 27.47 Proceedings for the maintenance of a child may be brought under the Family Law Act, only if, at the date of institution of proceedings: (a) the child is present in Australia;

(b) the child is an Australian citizen or is ordinarily resident in Australia; (c) a parent of the child is an Australian citizen, is ordinarily resident in Australia or is present in Australia; (d) a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia; or (e) it would be in accordance with a treaty or international arrangement or the common law rules of private international law for the court to exercise jurisdiction.131

27.48 Proceedings in relation to child maintenance cannot be instituted in a court of a territory unless at least one of the parties in the proceedings is at the date of institution or transfer of proceedings ordinarily resident in that territory.132 27.49 In Western Australia, a court has jurisdiction to make an order for the maintenance of an ex-nuptial child: (a) if the person against whom the order is sought; or (b) if the person for whose benefit the order is sought, is resident in that State.133

[page 644] 27.50 However, an Australian court must not determine an application for payment of child maintenance if the person seeking payment is habitually resident in New Zealand and determining the application would require the court to make a decision mentioned in Art 1.2 of the Australia-New Zealand Agreement.134 27.51 If the court has jurisdiction, it will apply the law of the forum,135 except where a question as to the paternity or legitimacy of the child arises, in which case the appropriate choice-of-law rule will be applied to that issue.136 27.52 Child maintenance orders made under the Family Law Act have effect and are enforceable, under s 103, throughout Australia and its external territories.

International Recognition and Enforcement of Maintenance Liabilities

General 27.53 The Family Law Act s 110 authorises, inter alia, the making of regulations making provision for and in relation to the registration in, and enforcement by, courts having jurisdiction under the Act of maintenance orders made by courts or authorities of reciprocating jurisdictions,137 or of jurisdictions with restricted reciprocity;138 the making of provisional maintenance orders; and the confirmation of provisional orders made in reciprocating jurisdictions or in jurisdictions with restricted reciprocity. Section 110A authorises regulations making provision for and in relation to the registration and enforcement in Australia of overseas maintenance agreements or overseas administrative assessments of maintenance liabilities. Section 110B authorises regulations making provision for and in relation to the transmission to appropriate courts or authorities of prescribed overseas jurisdictions of registered maintenance agreements, approved maintenance agreements, and financial agreement under the Family Law Act, and of administrative assessments of maintenance liabilities, for the purpose of securing their enforcement in those jurisdictions. Section 111 authorises regulations making provision for the implementation of the Convention on the Recovery Abroad of Maintenance signed at New York on 20 June 1956 (‘the New York Convention’), to which Australia became a party on 14 March 1985. Section 111A authorises regulations making provision for the implementation of the Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations signed at the Hague [page 645] on 2 October 1973, to which Australia acceded on 15 November 2001, and which entered into force for Australia on 1 February 2002.139 Section 111AB authorises regulations making provision for the implementation of the Agreement Between the Government of the United States of America and the Government of Australia for the Enforcement of Maintenance (Support) Obligations, which was concluded and entered into force on 12 December 2002.

Maintenance orders registered before 1 July 2000 27.54 Prior to 2000, overseas maintenance orders were enforceable pursuant to a procedure for registration provided by the Family Law Regulations 1984 (Cth)

(Family Law Regulations), which have since been superseded, in respect of spousal maintenance as well as child maintenance and support, by provisions of the Child Support (Registration and Collection) Act 1988 (Cth), described below.140 An overseas order that was registered before 1 July 2000 is to be cancelled upon receipt of a request in writing made by the court that made the order or some other competent authority in the overseas jurisdiction that the order be made no longer enforceable in Australia.141 Upon such cancellation the overseas order ceases to be enforceable in Australia.142

Enforcement of overseas maintenance liabilities under the Child Support (Registration and Collection) Act 1988 (Cth) 27.55 Since 1 July 2000, a liability arising under a maintenance order made by a judicial authority of a reciprocating jurisdiction,143 a maintenance agreement registered by a judicial or administrative authority of a reciprocating jurisdiction, or a maintenance assessment issued by an administrative authority of a reciprocating jurisdiction, whether of a parent or step-parent to pay periodic maintenance for a child,144 or of a party to a marriage to pay periodic maintenance for the other spouse,145 is registrable in the Child Support Register. 27.56 The procedure for enforcement of registrable overseas maintenance liabilities begins with an application by the payer, the payee, or an overseas authority on behalf of the payee, to the Child Support Registrar. Upon receipt of an application, the Registrar must register the liability within 90 days by entering particulars of the liability in the Child Support Register,146 unless satisfied that the liability arises in a manner inconsistent with the international agreement or arrangement on which the payee relies.147 The entry in the Register must include particulars from the child [page 646] support assessment, maintenance order or maintenance agreement under which the liability arose, including such details as the name of the payer, the name of the payee, the name and date of birth of each child to which the liability relates, and so on.148 Upon registration, amounts payable under the assessment, order or agreement under which the liability arises are debts due to the Commonwealth

by the payer in accordance with the particulars of the liability entered in the Child Support Register,149 with effect from the day on which the Registrar receives the application for the liability to be registered,150 unless the payer and payee jointly elect not to have the liability enforced under the Act, in which case it becomes a debt due and payable by the payer to the payee.151 27.57 A liability arising under a maintenance order made by a judicial authority of a reciprocating jurisdiction, a maintenance agreement registered by a judicial or administrative authority of a reciprocating jurisdiction, or a maintenance assessment issued by an administrative authority of a reciprocating jurisdiction other than one of a parent or step-parent to pay periodic maintenance for a child, or of a party to a marriage to pay periodic maintenace for the other spouse, is upon application to be entered in the Child Support Register if the Registrar is satisfied that to do so would be consistent with the international maintenance agreement on which the payee relies,152 and upon entry an amount payable under the assessment, order or agreement that gives rise to the liability is a debt due to the payee recoverable from the liable party in a court of competent jurisdiction.153 27.58 The person for whose benefit the overseas liability was created, or the person who is liable in respect of it, may apply to a court having jurisdiction under the Family Law Act for an order discharging, suspending, reviving or varying the liability (or an order registered prior to 1 July 2000).154 On such an application, the applicable law is the law in force in Australia under the Family Law Act.155 Further, a party who did not have notice of the proceedings giving rise to the order or liability, did not appear in those proceedings and did not consent to the making of the order or to the creation of the liability, may make an application for modification under the Family Law Regulations reg 36 within six months of service upon him or her of the notice of registration of the order or liability in Australia, and on such application may raise any matter he or she could have raised under Pts VII or VIII of the Family Law Act.156 27.59 The essential difference between an application under the Family Law Regulations reg 36 where reg 37 does not apply, and one where reg 37 is applicable, is that in the latter case the applicant may without restriction raise any matter that could have been raised had the original proceedings been brought in Australia, including [page 647]

those in respect of which the overseas court has made express or inferential findings of fact; whereas in the former the applicant cannot challenge findings of fact made in the overseas proceedings except where they are tainted by fraud, suppression of evidence, the giving of false evidence or other matters leading to a miscarriage of justice; otherwise in either case an applicant can rely on any grounds for discharge of an overseas order that would constitute ‘just cause’ for such a discharge as if the order had been made in Australia.157

Enforcement of Australian maintenance liabilities overseas 27.60 A payee under an Australian maintenance order or agreement (including in respect of spousal maintenance), or a child support assessment, may apply to the Child Support Registrar to have it enforced in a reciprocating jurisdiction158 (other than an excepted reciprocating jurisdiction).159 The Registrar at any time may, and after receiving an application from the payee must, request, in writing, a judicial or administrative authority in the reciprocating jurisdiction to enforce the liability, give any such application to that authority, and give that authority such other documentation and information as is required by the authority for enforcement proceedings in that jurisdiction.160

Proceedings under the Family Law Regulations Pt III Div 2 27.61 The Family Law Regulations make provision for the making in Australia of provisional maintenance orders against respondents who are abroad, for confirmation by the relevant overseas court; and also for the confirmation in Australia of such orders made by foreign courts.

Provisional maintenance orders made by overseas courts 27.62 The Family Law Regulations Pt III Div 2, provides for the making, confirmation and variation of provisional maintenance orders between jurisdictions which are by reg 25 declared to be reciprocating jurisdictions for the purpose of the Family Law Act s 110.161 A provisional maintenance order is one that has no effect under the law of the jurisdiction that made it unless and until it is confirmed by a court outside that jurisdiction. Whether an order should

be made as a provisional [page 648] order is a matter for the law of the court that originally made the order to determine. Normally, a provisional order will be made because the respondent was already out of the jurisdiction in which the original proceedings for maintenance were brought. 27.63 Provision is made in the Family Law Regulations, regs 28, 28A and 28B for dealing with provisional overseas maintenance orders. The provisional order is first received by the Secretary of the Attorney-General’s Department.162 The Secretary must then make an application calling on the respondent to show cause why the order should not be confirmed.163 On the hearing of the application it is open to the respondent to raise any ground of opposition that he or she could have raised in the original proceedings or any ground of opposition that he or she could have raised had the proceedings in which the overseas provisional order was made been heard in Australia.164 A statement which should accompany the original document setting out the grounds on which the order could have been opposed in the original court shall be conclusive evidence that the grounds referred to in the statement are the grounds of opposition that could have been raised in the original proceedings.165 This does not preclude the respondent from raising the objection that the foreign court lacked jurisdiction under its own law.166 27.64 If the respondent, having been served with the application, does not appear at the hearing, or if, having appeared, fails to satisfy the court that the order ought not to be confirmed, the court may: (a) confirm the provisional order (either with or without modification); (b) discharge the provisional order; or (c) adjourn the proceedings, and remit the provisional order to the court that made it, with the request that that court take further evidence and further consider its provisional order.167

27.65 However, a court must not determine the application if at that time an application could have been made for administrative assessment of child support under the Child Support (Assessment) Act 1989 (Cth) read with the Child Support (Registration and Collection) Act 1988 (Cth).168 27.66 In modifying the order, the amount of maintenance is at large, ‘and the

broad dictates of justice in all the circumstances should be followed’.169 An order confirming a provisional order may specify (a) the time or times by which the money payable under the order is to be paid; and (b) the person, authority or court to whom or to which that money is to be paid; and (c) where necessary, the means by which that money must be paid or disbursed.170 Upon confirmation of the order (whether with or without modification), the order as so confirmed has effect and is [page 649] enforceable in Australia as if it were an order of a court having jurisdiction under the Family Law Act.171 27.67 If, on the hearing, the court is of the opinion that the matter should be adjourned, it may make such interim orders for periodic payments by the respondent as it thinks fit.172 27.68 Special provision is made in respect of United States support claims. Where the Secretary receives certified copies of a petition filed in a court of a state or territory of the United States seeking a support order against a person alleged to have a duty of support, and a certificate of that court to the effect that the petition sets out facts from which it may be determined that the person owes a duty of support and there are reasonable grounds for believing that the person is ordinarily resident in, present in, or proceeding to, Australia, the Secretary must make an application calling on the respondent to show cause why an order in the same terms as sought in the petition should not be made.173 However, a court must not determine the application if at that time an application could have been made for administrative assessment of child support under the Child Support (Assessment) Act 1989 (Cth) read with the Child Support (Registration and Collection) Act 1988 (Cth).174 On the hearing the respondent may raise any ground of opposition he or she could have raised under the law of the relevant United States jurisdiction or under the law of Australia.175 The Australian court then may make an order in the terms of the order sought in the petition (with or without modification).176 27.69 Provision is also made for the confirmation by an Australian court of a provisional order made by a court in a reciprocating jurisdiction varying, discharging, suspending or reviving a maintenance order originally made in Australia and enforceable in that jurisdiction, or made in that jurisdiction and

enforceable in Australia.177 Upon the hearing of an application for confirmation, the Australian court may: (a) confirm the provisional order (with or without modification); (b) discharge the provisional order; or (c) adjourn the proceedings and remit the provisional order to the court that made it with a request that the court take further evidence and further consider its provisional order.178

27.70 A provisional order so confirmed (with or without modification) has effect in Australia as if it were an order made by a court having jurisdiction under the Family Law Act.179 [page 650]

Provisional orders by Australian courts 27.71 An Australian court can make a provisional order against a respondent to a maintenance application, in the absence of the respondent, if the court is satisfied that he or she is proceeding to, or resident in, a reciprocating jurisdiction.180 Such an order may be made even if the respondent has not been served with the application and has not consented to the order.181 However, a court must not determine the application if at that time an application could have been made for administrative assessment of child support under the Child Support (Assessment) Act 1989 (Cth) read with the Child Support (Registration and Collection) Act 1988 (Cth).182 Such an order is provisional and of no effect unless expressed to be provisional and until confirmed (either with or without modification) by a competent court in a reciprocating jurisdiction.183 27.72 Where a provisional order of this kind is made, the registrar of the court must send to the Secretary of the Attorney-General’s Department: (a) a copy of the depositions of the witnesses; (b) three certified copies of the order; (c) a statement of the grounds upon which the making of the order could have been opposed if the respondent had appeared at the hearing; (d) the information and material (if any) as the registrar possesses for facilitating the identification and ascertaining the whereabouts of the respondent.184

27.73 The Secretary shall, on receipt of those documents, cause them to be sent to the overseas jurisdiction concerned with a request in writing that proceedings

be instituted there with respect to the confirmation and enforcement of the provisional order.185 The overseas court may confirm the order (with or without modification)186 or remit it to the Australian court that originally made it for the taking of further evidence, which the Australian court may proceed to do and send the further depositions to the overseas court.187 If, after taking the further evidence, it appears that the original order ought not to have been made, the Australian court may rescind the order or may, if it thinks fit, make a fresh provisional order.188 If the overseas court confirms the order (with or without modification) the order has effect in Australia as so confirmed.189 In any proceedings arising out of, or relating to, an order so confirmed it shall be presumed, unless the contrary is proved, that the respondent was resident in the overseas jurisdiction at the time the order was confirmed.190 [page 651]

Enforcement of New Zealand maintenance and support decisions 27.74 Under the Australia-New Zealand Agreement, a decision made by a New Zealand court or administrative authority in relation to the maintenance or support of a spouse or a child, at a time when the payee under that decision was habitually resident in that country, is entitled to recognition and enforcement in Australia by operation of law; that is to say, without the need for registration or other formality. Recognition may only be refused if the New Zealand court or authority lacked jurisdiction, or is incompatible with Australian public policy, or the decision was obtained by fraud. If there are two conflicting decisions involving the same parties and having the same purpose, the earlier decision shall be recognised and enforced up to the day on which the later decision was made. There shall be no review of the merits of a New Zealand decision.191

Enforcement under the New York Convention 27.75 The New York Convention applies as between the contracting states, which are set out in the Family Law Regulations Sch 4. There is some overlap with the reciprocal enforcement scheme, in that Austria, Belarus, Belgium, Cyprus, the Czech Republic, Denmark, Estonia, France, Germany, Ireland, Italy,

Luxembourg, the Netherlands, Norway, Poland, Portugal, the Slovak Republic, Spain, Sri Lanka, Sweden, Switzerland, Turkey and the United Kingdom are parties to both. 27.76 The Convention provides for the appointment of Transmitting and Receiving Agencies in each contracting state. In Australia, no provision is made for the transmission of claims to other contracting states. The function of a Receiving Agency is exercised by the Secretary of the Attorney-General’s Department.192 27.77 The Convention is implemented by Pt IV of the Family Law Regulations. Since 1 July 2000, the scope of this part has been much reduced. It now provides only for the Secretary to take action to bring a claim for maintenance under Australian law on behalf of a claimant in another Convention country. The Secretary is expressly precluded from registering or enforcing an existing order made in another Convention country,193 which must now be done under the Child Support Scheme for registration. Furthermore, a court must not make a maintenance order under Pt IV if at that time an application could have been made for administrative assessment of child support under the Child Support (Assessment) Act 1989 (Cth) read with the Child Support (Registration and Collection) Act 1988 (Cth).194 This reduces the practical relevance and utility of these provisions.

Conversion of currency 27.78 An overseas order expressed in foreign currency is to be converted to the equivalent amount in Australian currency on the date on which the order (whether by registration, confirmation or otherwise) becomes an enforceable order in Australia [page 652] on the basis of the telegraphic transfer rate of exchange prevailing on that date.195 A mere fall in the exchange rate between the date of making the order abroad and its registration in Australia does not of itself impose upon a court an obligation to adjust the order so as to maintain its impact in the same Australian dollar terms.196 _________________________

1.

For example, New Zealand, France, Belgium, some states of the United States (including California), and Indonesia.

2.

Hofman v Hofman [1965] NZLR 795, affirmed [1967] NZLR 9 (CA).

3.

In the Marriage of Hannema (1981) 7 Fam LR 542.

4.

De Nicols v Curlier [1900] AC 21.

5.

Re Martin, Loustalan v Loustalan [1900] P 211; Re Egerton’s Will Trusts [1956] Ch 593; Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012, [28-010].

6.

Hartley in Fawcett (ed), Reform and Development of Private International Law: Essays in Honour of Sir Peter North, Oxford University Press, Oxford, 2002, Ch 9, pp 226–7; Cheshire, North and Fawcett, Private International Law, 14th ed, Oxford University Press, Oxford, 2008, pp 1294–5; Dicey, Morris & Collins, (2012), [28-010]–[28-011].

7.

Dicey, Morris & Collins, (2012), [28-020].

8.

[1956] Ch 593.

9.

See note 8 above, at 605.

10. But see, contra, Devos v Devos (1970) 10 DLR (3d) 603. 11. [1956] Ch 593 at 605. 12. In the Marriage of Hannema (1981) 7 Fam LR 542 at 546 per Nygh J; cf Devos v Devos (1970) 10 DLR (3d) 603; Vien Estate v Vien Estate (1988) 49 DLR (4th) 558. 13. (1992) 43 Rfl(3d) 139. 14. (1804) 4 Paton 581. 15. See note 14 above, at 617. 16. [1900] AC 21. 17. See note 16 above, at 33. 18. See note 16 above, at 27 per Lord Halsbury. 19. The learned editors of Cheshire, North and Fawcett, (2008), argue to the contrary, at pp 1298–9, that the Scottish right was a mere spes successionis, and thus rightly classified as a right of succession. A similar view is expressed in Dicey, Morris & Collins, (2012), at [28-053]. 20. See Bartin, Principes de Droit International Privé, Éditions Domat-Montchrestien, Paris, 1930, vol 2, p 249; Batiffol and Lagarde, Droit International Privé, 8th ed, Librairie Générale de Droit et de Jurisprudence (LGDJ), Paris, 1994, vol II, pp 358–9. 21. See Leyser, ‘Community of Property — Interests Acquired by Marriage Abroad’ (1959) 33 ALJ 209 at 213. 22. The principle in De Nicols v Curlier was applied in relation to the Quebec community property system in the Ontario cases of Re Parsons [1926] 1 DLR 1160; and Beaudoin v Trudel [1937] 1 DLR 216. See also Devos v Devos (1970) 10 DLR (3d) 603. 23. (1981) 7 Fam LR 542. 24. See note 23 above, at 546. 25. Cf. Kerr v Kerr (1981) 147 DLR (3rd) 384. 26. [2010] NSWCA 7; (2010) 268 ALR 377. 27. [2010] NSWCA 7; (2010) 268 ALR 377, at [114]–[115]. 28. [2010] NSWCA 7; (2010) 268 ALR 377, at [121]–[122].

29. Dicey, Morris & Collins, (2012), [28–029]. 30. [2010] NSWCA 7; (2010) 268 ALR 377, at [116]–[117]. 31. Slutsker v Haron Investments Limited [2012] EWHC 2539 (Ch), at [108]–[110]. 32. Rozan v Rozan (1957) 317 P 2d 11 at 13. 33. Re Thornton’s Estate (1934) 33 P 2d 1. In the case of California (the community property state in Thornton), the position has been changed by subsequent legislation, at least where the marriage is dissolved in California: see Addison v Addison (1965) 399 P 2d 897. 34. Re Kessler’s Estate (1964) 203 NE 2d 221. See also Ehrenzweig, Treatise on the Conflict of Laws, West, New York, 1962, p 652; Leflar, McDougal and Felix, American Conflicts Law, 5th ed, Transnational Publishers, Ardsley NY, 2002, sec 219, pp 764–8. 35. Leflar, McDougal and Felix, 2002, sec 219. 36. See also Lay, ‘Property Rights Following Migration from a Community Property State’ (1967) 19 Ala LR 298. 37. For support, see Wolff, Private International Law, 2nd ed, Clarendon Press, Oxford, 1950, pp 361–3; Cheshire, North and Fawcett, 2008, pp 1299–300 (provided that the spouses jointly change domicile); and Leyser, ‘Community of Property Interests Acquired by Marriage Abroad’ (1959) 33 ALJ 209. But see against, Dicey, Morris & Collins, (2012), [28-058]. 38. Murakami v Wiryadi [2011] NSWCA 7; (2011) 268 ALR 377, at [93], [121]; Piatek v Piatek [2010] QSC 412 at [114]–[115]. 39. [1900] 2 Ch 410. See also Chiwell v Carlyon (1897) 14 SC 61 (South Africa). 40. A proposition for which was cited Koops v Blanken [1999] NZCA 1487 (17 August 1999). 41. In Piatek v Piatek [2010] QSC 412 at [115], reference was made with approval to the view expressed in the previous edition of this work and the more rigorous requirements of Koops v Blanken, and it was said that in the absence of clear contractual intent or evidence that the law of the matrimonial domicile (Poland) would imply a contract, the approach adopted by Spigelman CJ in Murakami was not open. However, such evidence was not seen as a requirement in Murakami, where contractual intent was inferred based on what the parties would, objectively, have reasonably expected. 42. This sentence, in the 7th edition, was cited with approval in Murakami v Wiryadi [2011] NSWCA 7; (2011) 268 ALR 377 at [115]. 43. Cheshire, North and Fawcett, (2008), pp 1300-1; but see to the contrary, Dicey, Morris & Collins, (2012), pp 1468–71, [28-023]–[28-028]. 44. [1891] AC 639. 45. See note 44 above, at 645. 46. [1960] AC 659. 47. See note 47 above, at 683. 48. (1992) 87 DLR (4th) 503. 49. The ‘tacit contract’ theory has now also been abandoned in France: see 27.12 and note 20 above. However, the approach adopted in Murakami v Wiryadi [2010] NSWCA 7; (2010) 268 ALR 377, does not depend on whether the foreign law applies a ‘tacit contract’ theory but involves the forum inferring a choice of law from the failure to contract out where there is an opportunity to do so. 50. [2010] NSWCA 7; (2010) 268 ALR 377, at [116]–[117]. 51. [2012] EWHC 2539 (Ch), at [108]–[111].

52. Leflar, McDougal and Felix, 2002, sec 219, p 760. 53. Ehrenzweig, p 649. 54. See, however, Grappo v Coventry Financial Corp (1991) 235 Cal App 3d 496, applying the law of the domicile of the marriage partners at the time of acquisition to ‘foreign’ immovable property (that is, in another United States state) bought with funds acquired during marriage. 55. Family Law Act s 39(1)(a). 56. Family Law Act s 39(1)(b). Although the jurisdiction of the State Supreme Courts was effectively terminated by proclamations made under s 40(3) on 27 May 1976 with effect from 1 June 1976 (in respect of certain classes of proceeding), and on 23 November 1983 with effect from 25 November 1983 (with respect to further classes), that jurisdiction was revived by the Jurisdiction of Courts (CrossVesting) Act (Cth), which conferred on the State Supreme Courts all the jurisdiction of the Family Court of Australia: see Mulhall v Hartnell (1988) 91 FLR 240; 12 Fam LR 361; FLC ¶91-947; Young v Lalic [2006] NSWSC 18; (2006) 197 FLR 27 at [37]–[48]; Director-General, Department of Community Services; Re Jules (2008) 40 Fam LR 122; [2008] NSWSC 1193 at [7]–[8]. 57. Family Law Act s 39(1A). 58. Family Law Act s 39(2). 59. Family Law Act s 39(4)(a). 60. Family Law Act s 39(8). 61. There are no statutory limitations in respect of subject matter on either the Family Court of Australia or the Family Court of Western Australia. Former limitations on the jurisdiction of the Federal Magistrates Court (as the Federal Circuit Court was formerly known) have been removed, but there remains a discretion to transfer proceedings from the Federal Circuit Court to the Family Court: see Federal Circuit Court of Australia Act 1999 (Cth) s 39; or from the Family Court to the Federal Circuit Court: see Family Law Act s 33B; Family Law Rules 2004 (Cth) r 11.17. 62. Family Law Act s 4(1), definition of ‘matrimonial cause’ in para (ca)(iii). 63. In the Marriage of Skoflek and Baftirovski (1988) 12 Fam LR 55; but see now In the Marriage of Kowalski (1992) 16 Fam LR 235. 64. Family Law Act s 4(1), definition of ‘matrimonial cause’ in para (ca)(i). 65. In the Marriage of Kowalski (1992) 16 Fam LR 235. 66. In the Marriage of Cain (1987) 11 Fam LR 540; Kemeny v Kemeny (1998) 23 Fam LR 105 at 131–2. 67. Family Law Act s 111AA precludes the court from determining an application for payment of child or spousal maintenance if the applicant is habitually resident in New Zealand and the decision is in any of the classes mentioned in the Australia-New Zealand Agreement on Child and Spousal Maintenance of 12 April 2000. 68. In the Marriage of Gould (1993) 17 Fam LR 156 (application under (then) Family Law Act s 85 to set aside a transaction that tended to defeat a claim under the Act; see now s 106B); see also Chen & Tan [2012] FamCA 225, at [21]-[22]. 69. In the Marriage of Allison (1981) 1 SR(WA) 248; In the Marriage of Gilmore (1993) 16 Fam LR 285 at 292 per Fogarty J. 70. (1990) 171 CLR 538, applied in In the Marriage of Gilmore (1993) 16 Fam LR 285. See also Nygh, ‘Voth in the Family Court: Forum Conveniens in Property and Custody Litigation’ (1993) 7 AJFL 260. 71. (1988) 165 CLR 197 at 247. 72. Henry v Henry (1996) 185 CLR 571 at 588–9, disapproving In the Marriage of Gilmore (1993) 16 Fam LR 285; Kemeny v Kemeny (1998) 23 Fam LR 105.

73. Kemeny v Kemeny (1998) 23 Fam LR 105; D v L [2005] FamCA 479; (2005) FLC ¶93-225 (Finn, May and Boland JJ); SLR Van Londen v Dobson [2005] HCATrans 1007; Garrett & Cowell [2007] FamCA 778; Navarro v Jurado (2010) 44 Fam LR 310; see also S v S (Divorce Staying Proceedings) [1997] 2 FLR 100, at 114; cf. Pagliotti v Hartner (2009) 41 Fam LR 41. 74. Pagliotti v Hartner [2009] FamCAFC 18; (2009) 223 FLR 121; (2009) FLC ¶93-393; (2009) 41 Fam LR 41, at [126] (Australia clearly inappropriate for determination of maintenance rights which had been litigated in Italy, or beneficial ownership of Italian assets, but not for determination of beneficial entitlements to Australian property). 75. Henry v Henry (1996) 185 CLR 571; D v L [2005] FamCA 479; (2005) FLC ¶93-225 (Finn, May and Boland JJ); SLR Van Londen v Dobson [2005] HCATrans 1007. 76. Morton v Morton [2008] FamCA 854 per Watt J. 77. Pagliotti v Hartner (2009) 41 Fam LR 41. 78. D v L [2005] FamCA 479 (Finn, May and Boland JJ); SLR Van Londen v Dobson [2005] HCATrans 1007; Garrett & Cowell [2007] FamCA 778; Whung v Whung (2011) 45 Fam LR 269. 79. Reynolds v Reynolds (1979) FLC ¶90-728; Bak & Bak (1980) FLC ¶90-877; Smith & Saywell (1980) FLC ¶90-856. 80. D v L [2005] FamCA 479; (2005) FLC ¶93-225 (Finn, May and Boland JJ); SLR Londen v Dobson [2005] HCATrans 1007; Garrett & Cowell [2007] FamCA 778. 81. McCarney & McCarney (1977) FLC ¶90-200; Tansell & Tansell (1977) FLC ¶90-307, 76,633; Lederer v Hunt (2007) FamCA 55 at [35]–[36]; FLC ¶93-311. 82. Esmore & Esmore (1979) FLC ¶90-711 per Nygh J; Baba v Jarvinen (1980) FLC ¶90-882 per Nygh J. 83. Lederer v Hunt (2007) FamCA 55; FLC ¶93-311. 84. Pastrikos v Pastrikos (1980) FLC ¶90-897; In the Marriage of Hannema (1981) 7 Fam LR 542; In the Marriage of Cain (1987) 11 Fam LR 540; In the Marriage of Gilmore (1993) 16 Fam LR 285 at 292 per Fogarty J; Pagliotti v Hartner [2009] FamCAFC 18; (2009) 223 FLR 121; (2009) FLC ¶93-393; (2009) 41 Fam LR 41, at [148]; Chen & Tan [2012] FamCA 225, at [19]. 85. Ex parte Pollard (1840) Mont & Ch 239 at 250 per Lord Cottenham LC; Duder v Amsterdamsch Trustees Kantoor [1902] 2 Ch 132 at 140; Michael Wilson & Partners Ltd v Robert Colin Nicholls [2008] NSWSC 1230 at [6]–[7]. 86. Phillips v Batho [1913] 3 KB 25 at 32 per Scrutton LJ; Simons v Simons [1937] 1 KB 490 at 499 per Goddard LJ. 87. [1926] NZLR 131. 88. [1913] 3 KB 25. 89. Webb and Davis, Casebook on the Conflict of Laws of New Zealand, Brookers, Auckland, 1970, p 183; Cheshire, North and Fawcett, (2008), p 533; Dicey, Morris & Collins, (2012), [14-092]; Jacobs v Jacobs [1950] P 146. 90. (1980) FLC ¶90-810. 91. (1986) 10 Fam LR 858; applied in Taffa & Taffa (Summary Dismissal) [2012] FamCA 181. 92. (1998) 23 Fam LR 105. 93. See note 92 above, at 134 per Nicholson CJ, Baker and Maxwell JJ. 94. [2009] FamCAFC 18; (2009) 223 FLR 121; (2009) FLC ¶93-393; (2009) 41 Fam LR 41, at [126]– [127]. 95. [2009] FamCAFC 18; (2009) 223 FLR 121; (2009) FLC ¶93-393; (2009) 41 Fam LR 41, at [116]–

[125]. However, as s 79 proceedings are regarded as putting in issue the whole of the parties’ property wheresoever situate, it is difficult to see how once permitted to be instituted they can be limited to Australian assets. 96. (1993) 16 Fam LR 285 at 303–5 per Fogarty J; see also Hunter v Hunter [1962] P 1; Duke v Andler [1932] 4 DLR 529. 97. McGechan J in the counterpart proceedings in New Zealand of Gilmore v Gilmore (HCNZ, 3 May 1993, unreported), took the view that a New Zealand court would not recognise an Australian order made in respect of land in New Zealand. 98. As to which see Houlditch v Marquess of Donegal (1834) 2 Cl & F 470; White v Verkouille [1989] 2 Qd R 191; White, ‘Enforcement of Foreign Judgments in Equity’ (1982) 9 Syd LR 630; and see 40.26–40.27 below. 99. Domestic Relationships Act 1994 (ACT) Pt 3; Property (Relationships) Act 1984 (NSW) Pt 3; De Facto Relationships Act 1991 (NT) Pt 2; Property Law Act 1974 (Qld) Pt 19; Domestic Partners Property Act 1996 (SA) Pt 3; Relationships Act 2003 (Tas) Pt 5; Property Law Act 1958 (Vic) Pt IX; Family Court Act 1997 (WA) Pt 5A (extended to same-sex relationships by Interpretation Act 1984 s 13A). 100. Similar provision is made in the Property Law Act 1958 (Vic) s 280 (requiring residence in Victoria of at least one-third of the relationship), and the De Facto Relationships Act 1991 (NT) s 15 (with the same residence requirement as Victoria); (ACT): s 11(1) (with the same residence requirement as Victoria). The equivalent provision in South Australia requires that the partners lived in South Australia for ‘the whole or a substantial part’ of the period of the relationship, and that the relationship lasted for at least three years or produced a child: Domestic Partners Property Act 1996 (SA) s 9(2). In Western Australia, one party must be resident in that state on the day the application is made, and either both parties must have resided in Western Australia for at least one-third of their relationship, or the applicant must have made substantial contributions in the state: Family Court Act 1997 (WA) s 205X. No territorial nexus is required by the Queensland and Tasmanian legislation. 101. Cohabitation in the state for one-third of the duration of the domestic relationship is a sufficient but not essential fulfilment of the criterion of ‘substantial period’. Thus, residence for a continuous period of two years and eight months, although only 12% of the totality of a relationship, has been held sufficient: Flett v Brough (1999) DFC ¶95-211. 102. This is implicit in (ACT) s 11(2); (NT) s 17; (NSW) s 16; (VIC) s 283. There is no equivalent provision in the De Facto Relationships Act 1996 (SA); Property Law Act 1974 (Qld) Pt 19; and De Facto Relationships Act 1999 (Tas); however, plainly the court can only apply the provisions of the relevant Act if a claim is made pursuant to it. 103. Family Law Act s 4AA. 104. Family Law Act ss 39A, 90RC, 90SB, 90SD, 90SK. 105. Family Law Act ss 90SD, 90SK. 106. Family Law Act s 103. 107. Family Law Act s 39(4)(b). 108. Pastrikos v Pastrikos (1980) FLC ¶90-897; In the Marriage of Hannema (1981) 7 Fam LR 542; In the Marriage of Cain (1987) 11 Fam LR 540; In the Marriage of Gilmore (1993) 16 Fam LR 285 at 292 per Fogarty J; Pagliotti v Hartner [2009] FamCAFC 18; (2009) 223 FLR 121; (2009) FLC ¶93-393; (2009) 41 Fam LR 41, at [148]; Chen & Tan [2012] FamCA 225, at [19]. 109. The Act applies to the maintenance of children born on or after 1 October 1989 or whose parents separated after that date. In practice, the scheme of the Act is now the only relevant one in Australia. 110. Family Law Act s 66E(1), (2).

111. Child Support (Assessment) Act 1989 (Cth) s 24(1)(b). 112. Family Law Act s 25(d). 113. Family Law Act s 25(d). 114. The reciprocating jurisdictions are prescribed in the Child Support (Registration and Collection) Regulations 1988 (Cth) reg 3A Sch 2, and are extensive, including more than 80 states, including (inter alia) the United Kingdom, the United States, Canada and New Zealand. 115. Child Support (Assessment) Act 1989 (Cth) ss 24(2), 29A. 116. Child Support (Assessment) Act s 29B. 117. Child Support (Assessment) Act ss 12(1)(f), 12(4A)(a). 118. Child Support (Assessment) Act ss 12(3)(b), 12(4A)(b). 119. Child Support (Assessment) Act s 12(2A). 120. Child Support (Assessment) Act s 12(3A). 121. Child Support (Assessment) Act ss 24(2), 29B. 122. Child Support (Assessment) Act s 29A. 123. Child Support (Assessment) Act s 29B; Child Support (Registration and Collection) Act 1988 (Cth) s 4(1) (definition of ‘overseas authority’). 124. See 27.55–27.59 below. 125. Australia-New Zealand Agreement Art 2. 126. See note 125 above, Art 4. 127. See note 125, Art 5(1). 128. Child Support (Assessment) Act 1989 (Cth) s 150DA; Child Support (Assessment) Regulations 1988 (Cth) reg 9A; Australia-New Zealand Agreement Art 5(2). 129. Child Support (Assessment) Act 1989 (Cth) s 150DA; Australia-New Zealand Agreement Art 5(3). 130. Australia-New Zealand Agreement Art 6(1). 131. Family Law Act s 69E(1). 132. Family Law Act s 69 K. 133. Family Court Act 1997 (WA) s 36(4). 134. Family Law Act s 111AA. The decisions referred to include an administrative assessment of child support; an agreement to pay child maintenance registered with an administrative authority; an assessment, order or agreement suspending, modifying or revoking such a decision; an order for child maintenance; an agreement to pay child maintenance registered with a judicial authority; an order or agreement suspending, modifying or revoking such a decision: Australia-New Zealand Agreement Art 1.2. 135. Family Law Act s 66G; Family Court Act 1997 (WA) s 119. 136. As to which, see 29.7–29.13 below. 137. See Family Law Regulations 1984 (Cth) Sch 2, and note 161 below. 138. There are currently no such jurisdictions. 139. The states parties to this Convention are Australia, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Italy, Lithuania, Luxembourg, Netherlands, Norway, Poland, Portugal, Slovakia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom.

140. See 27.55–27.59. 141. Family Law Regulations 1984 (Cth) reg 32(1), (4). 142. Family Law Act Reg 32(2). 143. See Child Support (Registration and Collection) Regulations 1988 (Cth) Sch 2. 144. Child Support (Registration and Collection) Act 1988 (Cth) ss 4(1) (para (b) of definition of ‘overseas maintenance liability’), 18A(1). 145. Child Support (Registration and Collection) Act ss 4(1) (para (b) of definition of ‘overseas maintenance liability’), 18A(2). 146. Child Support (Registration and Collection) Act s 25(2A). 147. Child Support (Registration and Collection) Act s 25(2B). 148. Child Support (Registration and Collection) Act s 26. 149. Child Support (Registration and Collection) Act s 30(1). 150. Child Support (Registration and Collection) Act s 28(1)(d). 151. Child Support (Registration and Collection) Act ss 38A, 38C. 152. Child Support (Registration and Collection) Act s 25A. 153. Child Support (Registration and Collection) Act s 25B. 154. Family Law Regulations reg 36(1). 155. See note 154 above, reg 36(4). 156. See note 154 above, reg 37. This has been described as a ‘de facto appeal’ from the foreign order: see In the Marriage of Vakil (1997) 21 Fam LR 508 at 521 per Fogarty, Lindenmayer and Moore JJ. 157. See In the Marriage of Vakil (1997) 21 Fam LR 508 at 526 per Fogarty, Lindenmayer and Moore JJ; see also Newbeld & Newbeld [2007] FamCA 1483 per May J. 158. See Child Support (Registration and Collection) Regulations 1988 (Cth) Sch 2. 159. See note 158 above, reg 5AA: Brunei Darussalam, Cook Islands, Israel, Niue, Papua New Guinea, Samoa and the Yukon Territory of Canada. 160. Child Support (Registration and Collection) Act 1988 (Cth) s 30A. 161. The reciprocating jurisdictions are set out in Sch 2 to the Regulations. They include Austria, Belarus, Belgium, Brunei, all Canadian Provinces except Quebec, Colombia, Cook Islands, Cyprus, Czech Republic, Denmark, Estonia, Fiji, France, Germany, Gibraltar, Kazakhstan, Hong Kong, India, Republic of Ireland, Italy, Kenya, Luxembourg, Malawi, Malaysia, Malta, Nauru, Niue, Netherlands, New Zealand, Norway, Papua New Guinea, Poland, Portugal, Sierra Leone, Singapore, Slovak Republic, South Africa, Spain, Sweden, Switzerland, Sri Lanka, Tanzania (excluding Zanzibar), Trinidad and Tobago, Turkey, United Kingdom, the United States, Western Samoa, Zambia, and Zimbabwe, and the territories of Christmas Island and Cocos (Keeling) Islands. 162. Family Law Regulations reg 28. 163. See note 162 above, reg 28(2). 164. See note 162 above, reg 28A(2). But see the doubts expressed by Foster J in Fisher v Fisher (1976) 2 Fam LR n 22. 165. Family Law Regulations reg 28A(3). 166. Deans v Supplementary Benefits Commission [1972] NZLR 1015 at 1019. 167. Family Law Regulations reg 28A(6).

168. See note 167 above, reg 28A(4). 169. Deans v Supplementary Benefits Commission [1972] NZLR 1015 at 1019 per McMullin J. 170. Family Law Regulations reg 28B(2). 171. See note 170 above, reg 28B(3). 172. Family Law Regulations, reg 28B(4). 173. Family Law Regulations, reg 28C(1), (2). 174. Family Law Regulations, reg 28D(3). 175. Family Law Regulations, reg 28D(2). 176. Family Law Regulations, reg 28D(5). 177. Family Law Regulations, reg 39. 178. Family Law Regulations, reg 39(4). 179. Family Law Regulations, reg 39(5). 180. Family Law Regulations, reg 29(1). 181. Family Law Regulations, reg 29(2). 182. Family Law Regulations, reg 29(4). 183. Family Law Regulations, reg 29(6). 184. Family Law Regulations, reg 29A(2). 185. Family Law Regulations, reg 29A(3). 186. Family Law Regulations, reg 29C(1). 187. Family Law Regulations, reg 29B(1). 188. Family Law Regulations, reg 29B(3). 189. Family Law Regulations, reg 29C(2). 190. Family Law Regulations, reg 29C(3). 191. Australia-New Zealand Agreement Art 7. 192. Family Law Regulations regs 50(1), 50A(6), 50B(2). 193. See note 192 above, reg 50(3). 194. See note 192 above, reg 50A(3). 195. See note 192 above, reg 21(3). 196. In the Marriage of May (1987) 11 Fam LR 847.

[page 653]

Chapter 28

The Welfare of Children Jurisdiction By statute 28.1 Jurisdiction under the Family Law Act 1975 (Cth) (the Family Law Act) in relation to all children (other than children under the care of a person under a state or territorial child welfare law)1 is vested in the Family Court of Australia2 and the Federal Circuit Court of Australia3 in New South Wales, Victoria, South Australia, Tasmania, Queensland, the Australian Capital Territory, the Northern Territory, and Norfolk Island.4 However, as a result of the cross-vesting scheme, which survives insofar as it vests Commonwealth jurisdiction in state courts (but not vice versa),5 the State Supreme Courts are vested with all the relevant jurisdiction of the Family Court of Australia, and so retain concurrent jurisdiction with the Family Court.6 28.2 In Western Australia, federal jurisdiction7 in relation to child welfare and parenting matters under the Family Law Act is conferred on the Family Court of Western Australia.8 [page 654] 28.3 Under the Family Law Act s 69E(1), proceedings in relation to a child may be brought if, at the date on institution of proceedings: (a) the child is present in Australia; or (b) the child is an Australian citizen or is ordinarily resident in Australia; or (c) a parent of the child is an Australian citizen, is ordinarily resident in Australia or is present in

Australia; or (d) a party to the proceedings is an Australian citizen, is ordinarily resident in Australia or is present in Australia; or (e) it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.

28.4 Paragraphs (a) and (b) of s 69E(1) coincide with the common law bases of jurisdiction, and the meaning given by the courts at common law to the words ‘present’ and ‘ordinarily resident’ apply equally in the statutory context.9 28.5 As the Family Court of Australia has not so far had conferred on it jurisdiction in respect of ex-nuptial children by the state of Western Australia, in relation to that state, s 69E should be read down as if its provisions were confined to children of a marriage and to parents who are parties to a marriage,10 including a marriage that has been dissolved or annulled in Australia or abroad,11 so that neither the Family Court of Australia nor the Federal Magistrates Court has jurisdiction in relation to ex-nuptial children in that state. In Western Australia, the appropriate court in respect of ex-nuptial children is the Family Court of Western Australia, which has non-federal jurisdiction to make a parenting order, other than a maintenance order, in respect of a child, or an order with respect to the welfare of a child, if the child is present in the state and either the applicant or the respondent is resident in the state.12 The court may only make a child maintenance order in relation to an ex-nuptial child if the person against whom the order is sought or the person for whose benefit the order is sought is present in Western Australia.13 28.6 Proceedings may be instituted in the Supreme Court of the Northern Territory, which has jurisdiction in relation to child welfare and parenting matters,14 but only if at least one of the parties to the proceedings is ordinarily resident in that territory.15 28.7 Service of process in the Family Court may be effected in the manner prescribed by Family Law Rules 2004 Chapter 7, either in or outside Australia. In some countries, service must be effected in accordance with the Convention regarding Legal Proceedings in Civil and Commercial Matters.16 [page 655] 28.8 The Family Law Act does not define the internal jurisdiction of the Family

Court of Australia or the Federal Circuit Court in relation to ex-nuptial children in other states and territories, but, having regard to the common law principles discussed below, those courts lack jurisdiction in respect of ex-nuptial children who are, at the date of institution of proceedings, neither present nor ordinarily resident in a referring state or territory. 28.9 Where the parties to a dispute are residents of different states, courts having jurisdiction under the Family Law Act have been invested with jurisdiction with respect to maintenance of or parental responsibility for children,17 other than children to whom s 69ZK applies.18 Such jurisdiction applies even though the child is an ex-nuptial child resident and present in Western Australia. If the court sits in a state which has referred powers, the applicable law will be Pt VIII of the Family Law Act. If the court sits in Western Australia, the applicable law will, by virtue of s 79 of the Judiciary Act 1903 (Cth),19 be the law of that state.

At common law 28.10 At common law, the ultimate care and control over all minors within the realm, whether born within or without marriage, was vested in the Crown as parens patriae. Traditionally, this function was exercised on behalf of the Crown by the Court of Chancery. The jurisdiction was based on the allegiance of the child to the Crown, which in turn entitled the child to the protection of the Crown. This bond of allegiance exists by virtue of the child being a subject of the Crown, whether resident within or outside the realm, and — in the case of a foreign child — by virtue of his or her physical presence or ordinary residence within the realm.20 A similar inherent jurisdiction was inherited by the superior courts in Australia.21 Notwithstanding the extensive statutory jurisdiction in relation to children under the Family Law Act, the parens patriae jurisdiction of the State Supreme Courts survives,22 although its practical relevance is generally limited to children under care by operation of a state or territorial child welfare law — who are excluded from the jurisdiction of the Family Courts by the Family Law Act s 69ZK — since the statutory welfare [page 656] jurisdiction under the Family Law Act s 67ZC is otherwise available in the state

as well as in the Family Courts.23 28.11 The significance of the common law rules has been reduced with the statutory jurisdiction of the Family Courts. As noted above, the jurisdiction of the Family Courts of Australia and Western Australia, the Federal Circuit Court and the Supreme Court of the Northern Territory is regulated by statute. In so far as the common law rules are wider than the statutory rules, which is dubious, they may be relevant under the Family Law Act s 69E(1)(e). 28.12 Jurisdiction at common law can be exercised on various grounds. 28.13 In the first place, jurisdiction can be exercised on the basis of the child being physically present within the jurisdiction, however fleeting, at the time of institution of proceedings.24 It does not matter that the child is an alien and domiciled abroad,25 but the court should not exercise its jurisdiction over a foreign child on the basis of presence alone unless the child’s welfare or safety is at stake. Facilitation of an entry permit into Australia is an insufficient ground for exercising jurisdiction.26 28.14 In the second place, jurisdiction can be exercised on the basis that the child is at the date of institution of proceedings ordinarily resident within the jurisdiction, even though the child is physically abroad.27 Thus, the court can make an order in respect of a child who has been abducted from the jurisdiction, if he or she was ordinarily resident in the jurisdiction. The ordinary residence of a child is normally at the place of the matrimonial residence of the parents if they live together. A temporary absence from the matrimonial home does not affect the residence of the child, although the child may obtain a residence away from that home, if with the consent of both parents the child is sent to live indefinitely in another jurisdiction.28 If the parents are separated, the child’s ordinary residence is determined by the parent with whom the child lives and will normally be at the place where that parent resides. This ordinary residence cannot be changed by the unilateral act of a parent who is not the only one having contact with the child, so that the unilateral removal of a child by one parent from the home of the other does not change the child’s ordinary residence.29 If a child is taken to another jurisdiction with the consent of both parents for a temporary stay the child’s ordinary residence is not changed when the parent who has taken the child abroad subsequently decides unilaterally to remain abroad with the child.30 If the parents are unmarried, the mother at common law was the natural guardian and custodian of the child. However, under the Family Law Act s 61C(1), each natural parent has parental responsibility for the child which, as explained in s 61B, means all the duties,

powers, responsibility [page 657] and authority which by law parents have in relation to children. Similar provision is made in the Family Court Act 1997 (WA) ss 68 and 69. Hence, a change of residence of the child now requires the consent of both natural parents, unless one has been given sole responsibility for the child.31 28.15 The Court of Chancery also exercised jurisdiction on the basis that the child was a British subject, wherever the child might be resident or present.32 The status of British subject no longer exists. It has been suggested that for ‘British subject’ one should now read ‘Australian citizen’.33 In Moses v Stephenson34 Gallop J held that the Supreme Court of the Northern Territory had jurisdiction on this basis in respect of a child who had never lived in the Territory and whose mother had come to reside there after the parents separated, but declined to exercise jurisdiction on grounds of forum non conveniens. It has similarly been held that a writ of habeas corpus issued out of the Supreme Court of a state in respect of an Australian child runs throughout the Commonwealth.35 The exercise of jurisdiction on the basis of Australian nationality of the child was doubted by Powell J in A v B.36 Subsequently, in McM v C 37 Powell J said that the only generally accepted bases of jurisdiction in respect of children were (a) if the application is for the issue of a writ of habeas corpus then, either the child, or the person said to have control of the child, must be ordinarily resident within the state; and (b) if the inherent jurisdiction be invoked, then, either the child must be present within the state or it must ordinarily be resident within the state. However, acceptance that there is jurisdiction at common law on the basis of Australian nationality of the child accords with the notion of ‘allegiance’ as a foundation of the parens patriae jurisdiction,38 although the court might be expected to decline to exercise jurisdiction on that basis, as a matter of comity, if the child is ordinarily resident and present in another state or territory.39 But it may be otherwise if the child has been removed from Australia and is resident in an overseas jurisdiction.40 Powell J’s view was supported by Dunn J in Ex parte TMW,41 where his Honour held that he had no jurisdiction to issue a writ of habeas corpus out of the Supreme Court of Queensland against a person resident in New South Wales and in respect of a child also resident in New South Wales. The issue remained unresolved,42 but the practical difficulty has been removed by the conferral of the jurisdiction of each of the State Supreme Courts on the

others, under the Jurisdiction of Courts (Crossvesting) Acts; and by the Family Law Act s 70C and Family Court Rules 2004 [page 658] r 23.01A, which provide for the registration in the national Family Courts of state child orders — which thereupon are enforceable nation-wide as if they were made under the Family Law Act. 28.16 Where the respondent to an application for a writ of habeas corpus or a care order is resident outside the jurisdiction, jurisdiction over that person can only be obtained by service within the jurisdiction or by submission.43 Service of a writ in respect of an ex-nuptial child can be effected on a person within Australia under the Service and Execution of Process Act 1992 (Cth) s 15(1). In the Federal Court and the Supreme Courts of Queensland and Victoria (by prior leave) service may be effected outside Australia where the proceedings relate to the wardship, custody, maintenance or welfare of a minor.44 In New South Wales, process can be served outside the jurisdiction if the proceedings are for relief relating to the custody, guardianship, protection or welfare of a minor, whether or not in New South Wales, which the court has, apart from service, jurisdiction to grant.45 In Tasmania, process may be served ex juris without prior leave where the court has jurisdiction and the proceedings relate either wholly or partly, to custody, guardianship, protection or welfare of a minor, whether or not the minor is in Tasmania.46

Discretion to decline jurisdiction 28.17 In ZP v PS,47 the High Court held that the discretion to decline jurisdiction must be exercised in accordance with the principle that the child’s welfare is the paramount consideration, unless the court’s discretion is fettered by specific statutory provisions such as are found in the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (Family Law (Child Abduction Convention) Regulations).48 This confirmed the approach taken in earlier decisions of the Full Court of the Family Court,49 and specifically overruled a line of decisions in which [page 659]

that court applied forum non conveniens principles, which emphasise the interests of the litigants rather than those of the child.50 28.18 The provision considered by the High Court in ZP v PS required that the best interests of the child be considered paramount in ‘proceedings in relation to the custody, guardianship or welfare of, or access to’ children.51 That provision was amended in 1995, and again in 2005. The equivalent section now requires the court to give paramount consideration to the best interests of the child ‘in deciding whether to make a particular parenting order in relation to a child’.52 Because the reference to ‘proceedings’ was replaced by a reference to the making of a parenting order, it was possible to argue that the paramountcy principle should now apply only to the making of final orders and not to interlocutory proceedings, such as an application for a stay of proceedings on forum non conveniens grounds. However, subsequent cases have not adopted so narrow an interpretation of the new paramountcy provision, holding that the best interests of the child must be taken into account in interlocutory proceedings,53 including the question whether to exercise jurisdiction.54 However, where a party regularly invokes the jurisdiction of the Court for parenting orders – and in particular for the return, summary or otherwise, of a child to a non-Hague Convention country - while that party and the child are present in the jurisdiction and it is necessary to make parenting orders [page 660] to provide effective relief, the matter should not be determined on the basis of the clearly inappropriate forum test, but rather by a full or summary hearing applying the best interests principle.55 28.19 The fact that proceedings in respect of a child are pending elsewhere does not preclude an Australian court from exercising jurisdiction.56 Nevertheless, where proceedings are pending in another jurisdiction, an Australian court must consider whether it is in the best interests of the child that it try the matter. This will involve consideration of the child’s ordinary residence and where evidence concerning the welfare of the child is more readily available.57The court may grant an anti-suit injunction restraining one of the parties before it from continuing the foreign proceedings, either in part or in full, if it thinks that to be appropriate for the welfare of the child.58 28.20 Australian courts have been hesitant to assume jurisdiction in relation to

children who are neither present nor resident within the jurisdiction.59 However, there is no presumption against the exercise of jurisdiction in such cases, and the court will readily make such orders where a child within its care has been removed from its territorial jurisdiction.60 Generally speaking, an Australian court will refrain from exercising jurisdiction in respect of a foreign child only if: (a) there is no likelihood of enforcing any order which the court may make;61 but the court will not assume without evidence that the foreign court is unlikely to enforce an Australian order;62 (b) the child has resided in the foreign jurisdiction for a long time,63 but this does not apply if the parents reside in Australia;64 or (c) the child has been brought to Australia in breach of an order made in the country of its habitual residence with the consent of the abducting parent.65 [page 661] 28.21 However, the question of whether the court should or should not make a parenting order is subject to the paramountcy of the best interests of the child.66 Thus, if the child has been wrongfully removed from Australia, it is preferable for an Australian court to determine with whom the child should live, if the child had his or her last settled residence here.67 An Australian court is also likely to exercise jurisdiction in respect of a child who is an Australian citizen, where the child has been abducted from his or her foreign residence to another jurisdiction with which he or she has no previous connection.68

Choice of Law 28.22 There is no doubt that the law of the forum applies. Though Taylor J in R v Langdon,69 a diversity suit heard in the High Court, proceeded on the assumption that the law of the child’s residence ought to be applied, the House of Lords later held in J v C 70 that in custody proceedings in England concerning a child of Spanish nationality and domicile the determination should be made according to English law. As Lord Upjohn said: ‘… our courts have an independent power and duty to investigate the facts and make an order based on English principles …’.71

International Abduction or Retention 28.23 The improvement in modern communications has made kidnapping of children easier for disgruntled or disappointed parents. Because of the growing incidence of the problem, it has been considered necessary to strengthen the uncertain position at common law with the provisions found in the Family Law Act ss 70G–70L, and the Hague Convention on the Civil Aspects of International Child Abduction of 1980.

The common law principles 28.24 At common law the attitude of courts varied somewhat, but came to favour the view that while the forum had jurisdiction in respect of children brought within its borders by abduction, and was bound to form its own view as to what was in the best interest of the child in the circumstances, the fact that they had been abducted ordinarily told strongly in favour of their return to the place of origin. The leading modern authority remains the opinion of the Privy Council on appeal from Ontario, [page 662] in McKee v McKee.72 After pointing out that the forum had jurisdiction in respect of children within its borders even if brought there by abduction in breach of a foreign order, and that in all such cases the welfare of the child was the paramount consideration, their Lordships continued:73 Once it is conceded that the court of Ontario had jurisdiction to entertain the question of custody and that it need not blindly follow the order made by a foreign court, the consequence cannot be escaped that it must form an independent judgment on the question, though in doing so, it will give proper weight to the foreign judgment. What is the proper weight will depend on the circumstances of each case.

28.25 Consistent with the Family Law Act, the best interests of the child are the paramount consideration in determining whether a child abducted to, or wrongfully retained in, Australia should be returned.74 However, this does not mean that in every case the court will determine for itself on the merits whether the best interests of the child favour the child remaining in Australia or the child’s return to the jurisdiction from which he or she was abducted. As the Full

Court of the Family Court of Australia said in In the Marriage of Schwarz,75 in a situation where a child has been abducted into the forum, ‘the court has to make a threshold decision as to whether or not the welfare of the child requires that the court should return the child summarily from whence it came or whether it should embark on a trial of the merits with the inevitable delay this may entail’. 28.26 Normally, in the case of children brought into the jurisdiction recently, the court will consider it to be in their interests to return them summarily to their normal residence,76 especially if proceedings are already pending in that country.77 Following Australian accession to the Hague Convention on the Civil Aspects of International Child Abduction, the policy of that convention that children wrongfully removed or retained should be speedily returned, is a relevant consideration even as regards removal of children from a nonconvention country.78 However, in ZP v PS the High Court made clear that in cases where the convention does not apply, the purposes of the convention must be subservient to considerations of what is in the best interests of the child.79 [page 663] 28.27 Immediate return, however, has been refused in cases where there was uncertainty as to a speedy determination in the jurisdiction of normal residence;80 where the child had been resident within the jurisdiction for a substantial period before discovery and as such return would be adverse to the child’s interests;81 where the effect would be to send the children to novel surroundings of a country in which they had not been habitually resident,82 and where the question of custody would be determined by a religious tribunal in the country of normal residence applying a legal system which may not properly take account of the welfare of the child.83 28.28 If the court embarks on a full investigation of the facts, the normal principles applicable to residence cases must apply. The action of the abducting parent is not to be viewed in a punitive sense, but it is relevant in considering whether the welfare of the child would be better served by living with that parent.84

Family Law Act 1975 (Cth) ss 70G–70J 28.29 The Family Law Act s 70G provides for the registration of overseas child

orders, which are defined in s 4 as orders made in a prescribed overseas jurisdiction determining with whom a child under 18 years of age is to live, or for contact between a child under 18 years of age and another person, or varying or discharging such an order. The prescribed jurisdictions are Austria, Switzerland, New Zealand, Papua New Guinea, and all states of the United States with the exceptions of New Mexico, Missouri and South Dakota.85 The section has lost much of its significance since the much broader provisions of the Hague Abduction Convention became applicable to New Zealand on 1 June 1992 and to the United States on 1 July 1988.86 The provisions apply to exnuptial children as well as children of the marriage.87 28.30 An overseas child order made in these jurisdictions, provided it is not an interim88 or ex parte order,89 may be registered in a court having jurisdiction under the Family Law Act in accordance with Family Law Regulations reg 23. This can be done in one of two ways. First, a certified copy of the order, together with a certificate signed by an officer of the court which made the order to the effect that the order is still enforceable in that court, may be sent to the Secretary of the Attorney-General’s Department in Canberra, who will thereupon transmit it to the registrar of the appropriate court, [page 664] who upon receipt must register the order.90 Alternatively, a certified copy of the order, together with the certificate of enforceability can be presented directly to the court in which registration is sought, which may register it.91 It is essential that a certificate of enforceability be presented, whichever method is adopted.92 Upon registration, the order has the same force and effect as if it were an order made by the court of registration under the Family Law Act.93 The issue of warrants under s 65Q and the sanctions set out in Pt XIIIA will also be available. 28.31 The jurisdiction of Australian courts to investigate anew the claims of parties to a registered order is limited. Under s 70J(1) the court shall not exercise jurisdiction in proceedings for a residence order, a contact order or a care order, unless: (a) every person with whom the child is supposed to live or have contact under the overseas order consents to the exercise of jurisdiction by the court in the proceedings; or (b) the court is satisfied that there are substantial grounds for believing that the welfare of the child will be adversely affected if the court does not exercise jurisdiction in the proceedings.

28.32 The specific requirement that there must be ‘substantial grounds’ for believing that there would be an adverse effect on the child’s welfare constitutes a statutory exception to the general s 60CA principle that the welfare of the child is paramount.94 The test is not lightly satisfied,95 and the fact that the arrangements for the children in Australia are satisfactory and the children wish to remain here is not sufficient.96 Before determining the issue under s 70J(1), the court may make an order for a family report,97 but this is not essential.98 28.33 If the court declines to exercise jurisdiction, it can only order that the child be returned to the party entitled to custody under the registered order, and is precluded from making any order inconsistent therewith, even on an interim basis.99 Even if the hurdle imposed by s 70J(1) is overcome and the court assumes jurisdiction, the onus remains on the party seeking a departure from the overseas order to satisfy the court, under s 70J(2), that: (a) the welfare of the child is likely to be adversely affected if the order is not made; or (b) there has been such a change in the circumstances of the child since the making of the overseas order that the order sought ought to be made.

28.34 If jurisdiction is assumed by an Australian court to make a residence order, a contact order or a care order in relation to the subject child, the court must order that the registration of the overseas order be cancelled.100 Where an Australian order [page 665] and a registered overseas order conflict, either party may apply for cancellation of the registration. Such cancellation will only be ordered where conditions similar to those set out in s 70J(1) are satisfied.101 28.35 If the order is not registered, but is otherwise registrable, the principles of s 70J may still be applied.102 It has been suggested that the principles laid down in s 70J should be applied in relation to countries to which the section does not extend,103 but it is doubtful whether this is consistent with the paramountcy of the best interests of the child.104 28.36 Provision is also made in s 70M for the transmission of Australian residence or contact orders or specific issues orders to prescribed overseas jurisdictions. Reciprocal arrangements for the enforcement of Australian parenting orders exist in each of those countries.105

The Hague Convention 28.37 The Hague Convention on the Civil Aspects of International Child Abduction106 came into force for Australia on 1 January 1987 and was implemented by the Family Law (Child Abduction Convention) Regulations made pursuant to the Family Law Act s 111B. If there is any discrepancy or omission as between the regulations and the convention, it is the regulations and not the convention that govern the disposition of matters before Australian courts.107 But as the regulations on the whole reflect the convention, it is appropriate to consider the convention itself and its Explanatory Report108 in elucidating the meaning and purpose of the regulations.109 28.38 A constitutional challenge to the validity of the regulations was rejected by the High Court in De L v Director General New South Wales Department of Community Services.110 A court can validly order that an Australian citizen child be sent overseas.111 [page 666] 28.39 As stated by Nourse LJ in Re A (a minor), the purpose of the Convention is: … to provide for the summary return to the country of their habitual residence of children who are wrongfully removed to or retained in another country in breach of subsisting rights of custody or access. Except in certain specified circumstances, the judicial and administrative authorities in a country to or in which the child is wrongfully removed or retained cannot refuse to order the return of the child, whether on grounds of forum or on a consideration of what is in the best interests of the child or otherwise.112

28.40 The Convention is not directed at the question of what the welfare of the children requires,113 but ‘to ensure that the question of what the welfare of the children requires is determined by the jurisdiction in which they were habitual residents at the time of removal’.114 It is concerned with the determination of the forum only. Under Art 16 of the Convention, a decision concerning the custody of a child shall not be made until it has been determined that the child is not to be returned, and under Art 19 a decision concerning the return of a child shall not be taken to be a decision on the merits of the custody dispute.115 The injunction of Art 16 is repeated in reg 19 of the Family Law (Child Abduction Convention) Regulations, which allows only an interim order to be made before the application for return of the child is determined.

Application of the Convention116 28.41 The Convention applies to any child under the age of 16 who was habitually resident in a Convention country immediately before any breach of custody or access rights.117 The Convention is now in force between Australia and some 68 other Convention countries: Argentina, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Canada, Chile, China,118 Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, El Salvador, Estonia, Fiji, Finland, France, FYROM,119 Georgia, Germany, Greece, Guatemala, Hungary, Honduras, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Malta, Mauritius, Mexico, Moldova, Monaco, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Thailand, Trinidad and Tobago, Turkey, Turkmenistan, United Kingdom,120 United States, [page 667] Uruguay, Uzbekistan, Venezuela, and Zimbabwe.121 Convention principles may be relevant in relation to abductions from other countries.122 The operation of the Convention is prospective only: it can only apply in cases where the initial act of removal or of refusal to return the child took place on or after the date on which the Convention came into force as between the states concerned.123The Convention does not recognise the concept of a continuing removal or retention initiated before but continuing after its inception.124 28.42 It has been held in Australia that for the purposes of the Convention, a child can have only one ‘habitual residence’:125 it is not possible to have more than one,126 but the previous view that it is not possible to have none127 must be rejected in the light of the High Court’s acceptance that a person may cease to reside habitually in one place without acquiring a new place of habitual residence.128 In determining habitual residence, the court must focus on the child, not the parents, and have regard to the past and not to future intentions.129 The concept was extensively examined by the High Court of Australia in LK v Director-General, Department of Community Services,130 in which the court observed that the expression permitted consideration of a wide variety of circumstances that bear upon where a person is

[page 668] said to reside and whether that residence is to be described as habitual, and that the past and present intentions of the person under consideration will often bear upon the significance attached to particular circumstances like the duration of a person’s connection with a particular place.131 Particularly with younger children, it will usually be important to examine where the person or persons who are caring for the child live.132The person’s intentions will usually be relevant, sometimes determinative, but sometimes ambiguous.133The relevant intention cannot be confined to the intention of the primary caregiver, as generally neither parent can unilaterally change a child’s place of residence.134 Absence of a final decision to abandon one place of residence is not inconsistent with ceasing to reside there habitually.135 The relevant criterion is a shared intention of the parents that the child live in a particular place with a sufficient degree of continuity to be properly described as settled.136 28.43 The convention envisages that ordinarily applications for the return of a child shall be made through a central authority appointed in each convention country. In Australia, that authority at the national level is in the AttorneyGeneral’s Department, with the heads of each of the state and territorial departments concerned with child welfare as local central authorities under the Family Law (Child Abduction Convention) Regulations reg 8. Regulation 6(2) allows a person or body to apply to the court for an order for return of the child under the Family Law Act Pt VII, or ‘under any other law in force in Australia’. In In the Marriage of Panayotides137 the Full Court of the Family Court held that the reference to ‘any other law’ included the Family Law (Child Abduction Convention) Regulations, and that consequently a non-abducting parent could apply directly to the court. This decision appeared to overlook that in reg 6(2), using identical language, the reference to ‘any other law’ can only be read as excluding those regulations, and has now been over-ruled, so that only the central authority may apply.138 28.44 Standing to apply for assistance in securing the return of the child is subservient to the objects or purposes of making a request.139 The Convention and the regulations clearly contemplate that an almost unlimited range of individuals and institutions and entities may seek to have the central authority commence proceedings.140 For example, in MHP v Director-General, Department of Community Services,141 application was made to the Australian Central Authority by the Central Authority of England and Wales, although the

child was habitually resident in Scotland. The Full Court of the Family Court refused to regard as significant the [page 669] fact that the application had not been made by the central authority of the place of the child’s habitual residence. 28.45 A court of competent jurisdiction is not precluded from making an order for the return of a child under the Family Law Act Pt VII, or ‘under any other law’, which means otherwise than under the convention.142 28.46 An application for the return of a child abducted from Australia is made pursuant to the Family Law (Child Abduction Convention) Regulations, reg 11, in the prescribed form to the central authority in Canberra or one of the state and territorial authorities. Through them, the application is transmitted to the central authority of the Convention country where there is reason to believe that the child is present. Conversely, applications for the return of a child abducted to Australia are received by the Commonwealth central authority who, if satisfied that the application is in accordance with the convention and the regulations, either directly or through one of the state or territorial authorities takes action to secure the return of the child to the applicant under reg 13. 28.47 Pursuant to reg 14(1) the central authority may apply to a court with jurisdiction under the Family Law Act to make any of the following orders: (a) an order for the return of the child to the country of its habitual residence; (b) an order for the delivery of the passport of the child, and the passport of any other relevant person to the central authority, a member of the Australian Federal Police or other specified person; (c) an order for the issue of a warrant to find and recover the child, including the stopping, entering and searching of vehicles, vessels, aircraft and premises if it is reasonably believed that this child is in or on the vehicle, vessel, aircraft or premises; (d) an order directing that the child not be removed from a place specified in the order and that members of the Australian Federal Police prevent the child being removed from that place; (e) an order requiring such arrangements to be made as are necessary for the purpose of placing the child with an appropriate person, institution or other body in order to secure the welfare of the child pending the determination of an application under regulation 13; or (f)

any other order that the central authority considers to be appropriate to give effect to the convention.143

28.48 Pursuant to reg 15, a court may make any of the orders outlined in reg

14, or any other order that the court considers appropriate to give effect to the convention.144 28.49 An application for the return of a child must be dealt with expeditiously. If a court does not determine the application within 42 days, it may be asked to give reasons for the delay.145 Normally it is dealt with on the papers, without [page 670] cross-examination,146 but the High Court of Australia has emphasised that the requirement of reg 15 that applications for a return order be dealt with expeditiously does not yield any general, let alone inflexible, rule prohibiting cross-examination: ‘[P]rompt decision making … is one thing, and a peremptory decision upon a patently imperfect record would be another’.147 Thus there are circumstances in which cross-examination may be appropriate.148 Consideration of the application for return should not be delayed by application for an Australian parenting order149 or contact order150 under the Family Law Act, nor should return of the child be delayed by adjournments of an appeal against the court’s order.151 The court should not proceed to investigate allegations of parental incompetence or misconduct; these are matters to be determined by the court that will deal with the merits of the custody dispute.152 28.50 If the court is satisfied that the removal or retention is wrongful, it must order the return of the child, if the day on which the application was filed is a date less than one year after the date of the removal of the child to Australia, unless one or more of the four conditions in reg 16(3) is satisfied.153The child must be returned to the country of the child’s habitual residence, even if the aggrieved parent lives elsewhere.154 The court may order return of the child, even if the central authority has failed to take any action to try to secure an amicable resolution of the differences between the applicant and the person opposing return of the child or to secure the voluntary return of the child, as it is required to do by reg 13(4).155 28.51 If the application is filed after the expiry of one year (from the removal or retention), the court is required to make an order for the child’s return only if satisfied that the person opposing the return has not established that the child has become

[page 671] settled in his or her new environment.156 This follows Art 12 of the Convention. The onus of satisfying the court that the child is so settled rests upon the party resisting the return.157 The date for determining whether a child is ‘settled’ is the date of the hearing.158 An environment is ‘new’ if it is different from the one the child was previously in, however similar the two places may be in terms of culture and lifestyle.159 In Graziano v Daniels,160 the Full Court of the Family Court of Australia said that the word ‘settled’ had two constituent elements; a physical element of being established in a community and an environment, and also an emotional constituent denoting security and stability. However, that formulation was later doubted by the Full Court in Director-General, Department of Community Services v M and C,161 and was said by a majority of the Full Court in Townsend v Department of Family,Youth and Community Care162 to be incorrect, because it placed an impermissible gloss on the phrase ‘settled in the new environment’. The only test to be applied is whether the child has adjusted to his or her new surroundings.163

Wrongful removal or retention 28.52 The removal or retention of a child is defined by the Convention, Art 3, to be wrongful where: (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

28.53 Family Law (Child Abduction Convention) Regulations reg 2(2), uses the same definition. Under reg 16(1A)(c), the country from which the child was removed or retained must at the time of that removal or retention have been a convention country.164 28.54 The concepts of ‘removal’ and ‘retention’ are mutually exclusive.165 Removal occurs when the child is physically taken from the country of his or her habitual residence without the consent of the person or body having rights of custody and is

[page 672] taken to another country.166 Removal of a child from his or her custodian, without removing the child from the country, is not a ‘removal’ for the purposes of the convention.167 Removal of the child from a Convention country to a nonConvention country constitutes ‘removal’ for the purposes of the regulations if application for return of the child is later made in a Convention country.168 Retention occurs when the person who has taken a child from the country of habitual residence with initial consent from the other party for a limited period of time, indicates by word or deed that he or she will not return the child.169 It is debatable whether there can be ‘retention’ when the parents and child all go to a convention country by agreement, but then one parent wishes to return to their home country, taking the child, and the other parent wants to stay in the new country with the child.170 It is submitted that, at least where the original arrangement was for a temporary visit and one party having arrived in Australia decides to stay there with the child when the other returns abroad, there is a ‘retention’. 28.55 Neither removal nor retention occurs until and unless the child is outside the country of the child’s habitual residence.171 The act of retention need not be physical; making an application to a court for an order for custody of the child whilst on an access visit can be an act of wrongful retention.172 The act of retention occurs when the party with factual control of the child advises the other that the child will not be returned; it matters not that under the agreement between the parents the child was not due to be returned for some time yet.173 28.56 Removal and retention are separate events occurring on separate occasions.174 A lawful removal followed by a lawful retention may be followed by a wrongful retention if the non-custodial parent acquires rights of custody in the country of habitual residence and demands the return of the child.175 The converse is not true; if the removal is unlawful, any subsequent retention is also unlawful.176 28.57 The question of whether the removal or retention was in breach of the rights of custody of a person is a matter for the law of the country in which the child was [page 673]

habitually resident.177 For the purposes of proceedings under the convention, an Australian court may take judicial notice of a law in force in a convention country.178 Furthermore, a statement that gives evidence from or about a proceeding from a court or tribunal in a convention country in relation to child custody or arising under the regulations may be admitted as evidence before an Australian court if the evidence has been signed by a judge or person before whom the evidence was taken.179 As such, documents provided to the court, if properly drawn, will supply their own prima facie case for the return of the child. 28.58 In contrast to the Family Law Act s 70G, the scope of the convention is not limited to the enforcement of existing orders, since the right of custody ‘may arise (a) by operation of law or (b) by reason of a judicial or administrative decision, or (c) by reason of an agreement having legal effect under a law in force in Australia or a convention country’.180This covers the situation where one parent having parental responsibility for the child under a provision such as is found in the Family Law Act s 61C(1), removes the child from the jurisdiction before any court order is made concerning his or her custody.181 But a parent with sole parental responsibility may lawfully remove the child from the jurisdiction without the consent of the other parent, unless that other parent has, at the time of removal, a ‘right of custody’.182

Rights of custody 28.59 ‘Rights of custody’ are defined in the Family Law (Child Abduction Convention) Regulations reg 4, as including ‘rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child’.183This indicates that the term ‘rights of custody’ should be interpreted broadly,184 and should not be limited to cases where the parent has the right to determine where the child shall live.185 If the non-custodial parent has obtained an order that the custodian shall not remove the child from the jurisdiction without his or her consent, that is a right of custody, and a removal in breach of that order will be wrongful.186 If an application for a custodial, guardianship or like order is [page 674] pending before a court in the foreign country, the court itself has rights of

custody for the purposes of reg 4 so that removal of the child from that country would be wrongful for the purposes of the convention.187 Similarly, if a noncustodial parent has obtained an interim court order restraining removal of the child from the foreign country pending an application for an order in respect of the child, that parent has rights of custody under reg 4 and any removal in defiance of the court order is wrongful for the purposes of the convention.188 It has been held that if the non-custodial parent has been granted access rights by court order in the foreign country, that amounts to a ‘right of custody’ for the purposes of art 5.189 It would follow that a removal of a child by the residential parent without the consent of the other parent with parental responsibility and possibly without the consent of a grandparent with contact rights is in breach of that person’s right of custody.190 However, in MW v Director-General, Department of Community Services,191 the High Court, emphasising that the convention distinguished between rights of custody and rights of access, held that a New Zealand order conferring rights of access on the father was not addressed to and did not prohibit the removal of the child by the mother from New Zealand, and gave the father no right of veto, no right to determine the child’s place of residence, and thus no rights of custody.192 28.60 In the absence of any custodial order, the right to determine where the child shall live that flows from a parent’s general parental responsibility under provisions similar to the Family Law Act s 61C(1), amounts to a ‘right of custody’, even if the parent was not actually exercising any control over the child’s upbringing at the time of the removal or retention.193 28.61 Must the rights of custody still be in existence at the time when return is sought? That issue arose in In the Marriage of Barraclough194 where the wife had failed to return with the children to England on the expiry of a holiday stay in Australia, as originally agreed upon between the parties. Following receipt of her letter indicating [37]; see also Soysa v Commissioner of Police [2011] Fam CAFC 39 at [16]. By parity of reasoning a person (not necessarily a parent) may have a right of custody if his or her consent is required before the child can be taken out of the jurisdiction: see Family Law Act 1975 (Cth) ss 65Y and 65Z and the equivalent provisions in the Children Act (United Kingdom) 1989 s 8. [page 675]

that she did not intend to return with the children, the husband took steps resulting in the children becoming wards of the English High Court which had the effect in English law of vesting the nominal custody of the children in that court, so that by placing his children in the wardship of the English High Court, the husband had lost his rights of custody.195 Kay J held, based on the use of the words ‘it is’ in Art 3(a) of the Convention, that it was necessary that the retention be in continuing breach of the husband’s rights of custody.196 Accordingly, the husband’s application for the return of the children was dismissed. Unfortunately, this interpretation clashes with the express words used in reg 16(3)(a)(ii) of the Family Law (Child Abduction Convention) Regulations, which provides for the subsequent consent to, or acquiescence in, the removal or retention, but not the loss of custodial rights. The preceding sentence won the approval of the Full Court of the Family Court in In the Marriage of Murray and Tam; Director, Family Services (ACT) (Intervener)197 in which it was held that an initially wrongful removal of the children from New Zealand to Australia could not be ‘washed clean’ by the abductor obtaining a subsequent custody order from an Australian court. It follows that, in Australia at least, it is sufficient that the rights of custody existed at the time of removal or retention, and that if the order for wardship is made after removal, the wrongfulness of the initial removal or retention is not thereby affected.198 28.62 To assist a foreign court, an Australian central authority may apply under the Family Law (Child Abduction Convention) Regulations reg 17, to a court having jurisdiction under the Family Law Act, for a declaration that the removal of a child from Australia to a Convention country or the child’s retention in a Convention country was wrongful within the meaning of Art 3 of the convention. An Australian court may request a foreign applicant to obtain a similar declaration in his or her country.199 Where such a declaration is obtained, the foreign court’s characterisation of the parent’s rights should only be declined in the forum if it is clearly out of line with the international understanding of the Convention’s terms, and the foreign court’s identification of those rights is to be regarded as conclusive [page 676] in the absence of exceptional circumstances such as where the ruling was obtained by fraud or denial of natural justice.200

Grounds for refusal to return child 28.63 If application is made within one year after the removal of the child to Australia, the return of the child is mandatory unless the court is satisfied that one or more of the four conditions set out in Family Law (Child Abduction Convention) Regulations reg 16(3), applies. The first three of those conditions reflect the provisions of art 13 of the Convention. The source of the fourth is in art 20. 28.64 Once the wrongfulness of the removal or retention is established, the onus rests upon the party resisting the order for return (usually the abductor) to satisfy the court that the condition exists.201 The purpose of the convention is to ensure the return of children wrongly taken or retained, and there must be clear and compelling evidence that the condition exists before return can be refused.202 The fact that the respondent has already obtained a custody order in Australia in his or her favour is not of itself a reason for refusing to make an order for the return of the child, but the reasons for the making of the order may be taken into account in considering whether one or other of the exceptions set out in reg 16 has been established.203 28.65 A court may refuse to make an order for the return of a child under reg 16(3) on the following four grounds. 28.66 That the person, institution or other body making application for the return of the child was not actually exercising rights of custody at the time of removal or retention of the child and those rights would not have been exercised if the child had not been removed or retained; or that person, institution or other body had consented to or subsequently acquiesced in the child’s removal or retention.204 The rights of custody must be actually exercised as at the date of removal or retention, or would have been so exercised but for the removal or retention. However, in Director-General Department of Community Services v Crowe,205 the Full Court of the Family Court of Australia held that a parent may be exercising a right of custody even if he or she is not exercising [page 677] any day to day control over the child’s upbringing at the time of the removal or retention. In Crowe, a mother asked her child’s paternal grandparents to care for the child, as she was suffering from depression. The grandparents took the child

from New Zealand (its country of habitual residence) to Australia and retained the child there after they had been joined there by the father. The Full Court reversed the trial judge’s decision that the mother had not been exercising rights of custody at the time of retention. The mother had rights of custody under New Zealand law because of her general parental responsibility for the child, there being no parenting orders in force. She was exercising those rights of custody by arranging to have the grandparents care for the child, and the retention of the child in Australia interfered with her rights. 28.67 Acquiescence206 must be clear and unequivocal;207 it cannot be held to have occurred when there is a state of confusion and turmoil about the child’s living arrangements.208 It requires informed acceptance by the aggrieved party of the conduct which constitutes infringement of his or her rights, and can be signified by express words or conduct on his or her part, which the other party believed to be acquiescence, or by silence or inaction where different conduct might have been expected.209 If active, it must be communicated to the other party, but if passive, it may be inferred by the court without any words expressed to the other party.210 The onus rests on the abducting parent, but will be discharged where the words or actions of the other parent clearly lead the abducting parent to believe that a summary return of the child would not be sought.211 A letter expressing reassurance or resignation at the fact of removal would not normally be sufficient to amount to active acquiescence.212 A period of ten months of inaction following the communication of the decision by the wife not to return with the children was held to be acquiescence.213 On the other hand, consent to an interim order giving the abductor custody pending the hearing of the suit does not amount to acquiescence,214 but there is acquiescence if a party consents to final orders whereby the children are allowed to remain in the country to which they were taken.215 However, ‘informed [page 678] consent’ does not require that the party consenting must be aware of his or her rights under the Convention; what is required is knowledge of the facts constituting what would be the otherwise wrongful removal or retention.216 28.68 Once there has been consent to or acquiescence in an otherwise wrongful removal or retention, the effect of the consent or acquiescence cannot be undone.217 The court of the forum will not order the return of a child just

because the father changes his mind, having given consent for the child to accompany the mother from abroad to the forum.218 However, the court retains a discretion to make a return order where a consent is withdrawn.219 28.69 That there is a grave risk that the return of the child to the country of habitual residence would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.220 The meaning of this paragraph was considered by the Full Court of the Family Court of Australia in In the Marriage of Gsponer 221 where the wife, who had removed the child to Australia, made allegations of cruelty and abuse against her Swiss husband. The Full Court of the Family Court held that the three categories referred to in paragraph (b) should be read distributively, so that it sufficed if the respondent established a grave risk either of physical harm, or of psychological harm or of the child being placed in an intolerable situation. Their Honours agreed with the comment of Nourse LJ in Re A (a minor) that ‘not only must the risk be a weighty one, but it must be one of substantial, and not trivial, psychological harm’.222 The decision in Gsponer was followed by the Full Court in DirectorGeneral of Family and Community Services (NSW) v Davis223 where the court held that any psychological harm must be ‘substantial and indeed, to a level comparable to an intolerable state’.224 28.70 In Gsponer, the Full Court further held that the risk referred to in the regulation and the convention was not a risk flowing from the father, but one from a return to Switzerland — whose courts were, in the absence of any contrary indication, to be trusted to concern themselves with the welfare of the child.225 Previously, it had been [page 679] thought that if the allegations of risk were in dispute, the matter was best resolved by the courts of the country of habitual residence.226 However, in DP v Commonwealth Central Authority227 the majority of the High Court said, of the manner in which courts should deal with allegations of grave risk upon return: That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.228

28.71 This implies that where they are raised in this context, allegations of sexual or other abuse of the child must be investigated, to some extent, by the Australian court. This would require some investigation of the merits of the dispute, which the convention was intended to avoid,229 and such investigation will inevitably lead to further cost and delay in securing a child’s return. However, the majority also pointed out that not every risk flowing from the child’s return would be of sufficient gravity to warrant investigation. As the majority pointed out, it is almost inevitable that a child will suffer disruption, uncertainty and anxiety when taken from one country to another without the agreement of one parent. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.230 The risk may arise from dangers existing in the country of origin, such as a state of war or civil disturbance,231 famine, a chronically deteriorating economy,232 inadequate medical facilities,233 or from the inability of the legal system in that country adequately to protect the child234 (or a combination of these factors).235 The Family Court of Australia has [page 680] taken the view that it is not necessary to establish that a return to the habitual residence would expose the child to a grave risk of direct harm over and above that to which any other child in that place is exposed.236 However, it is not open to the abducting parent to rely upon his or her own strong psychological aversion to the country of habitual residence, even if that means that the child may have to return without him or her and suffer psychological harm in consequence.237 But this does not exclude the possibility that in certain circumstances an inability of the carer to accompany a child, whether due to legal reasons such as a lack of a visa or other personal reasons, could place the child in an intolerable situation.238 28.72 That the child objects to being returned, the objection shows a strength of feeling beyond the mere expression of a preference and the child has attained an age and degree of maturity at which it is appropriate to take account of the child’s views.239 In New Zealand, it was held in Damiano v Damiano240 that the objection must not be merely a preference, but a quite emphatic reluctance that

extends to the unacceptable. The English Court of Appeal, in Re S (a minor) (abduction: custody rights)241 adopted a more literal test: to object was just what the word meant. The High Court of Australia agreed, in De L v Director General New South Wales Department of Community Services,242 that no additional gloss was to be added to the words, so as to modify the word ‘objects’ by requiring the expression of a wish or preference or of vehement opposition as a criterion.243 The regulation has since been amended, to reflect the ruling in Damiano, so as to require that the objection ‘show a strength of feeling beyond the mere expression of a preference or of ordinary wishes’.244 28.73 The date for determining whether the child objects is the date of the hearing.245 The objection must be to a return to the country of habitual residence, not simply to living with a particular parent, although the child will not be expected [page 681] to articulate that distinction precisely.246 No age is prescribed; in Re S (a minor) (abduction: custody rights), the child whose wish to remain in England was upheld was nine years old.247 In Australia, the objection of a 12-year-old has been upheld.248 There is no requirement for an extensive investigation into the child’s wishes and maturity; the extent of the inquiry is a matter for the trial judge to determine.249 28.74 That the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.250 This clause is in essence a public policy reservation. Having regard to the views expressed by the Full Court in Gsponer’s case about the trust that should be placed in the courts of other convention countries, there has not so far been much scope for the application of this exception. However, in In the Marriage of Murray and Tam; Director-General of Child Welfare (ACT) (Intervener) it was argued that the duty of summary return under reg 16 was inconsistent with the requirement of Art 3 of the United Nations Convention on the Rights of the Child, which Australia has ratified, that the best interests of the child should be the paramount consideration. The argument was rejected, the court pointing out that arts 11 and 35 of the UN Convention also prohibited the abduction of children. Nevertheless, the discussion in that case raises the possibility that return of a child may be contrary to other international

conventions defining fundamental rights.251 28.75 In Director-General, Department of Families, Youth and Community Care v Bennett,252 the Full Court of the Family Court of Australia held that the reg 16(3)(d) exception is extremely narrow, to be invoked only on the rare occasion when the return of a child would utterly shock the conscience of the court or offend all notions of due process.253 In Bennett itself, the court found no reason in reg 16(3)(d) to refuse return of an English-born child to England, despite the fact that he was of Torres Strait Islander descent.

Residual discretion 28.76 Regulation 16(3) confers a discretion on the court to order the return of the child notwithstanding that an exception under that sub-regulation has been established.254 This was acknowledged by the High Court in De L v Director General New South Wales Department of Community Services.255 Because the regulations are [page 682] silent as to the matters to be taken into account in the exercise of that discretion, it is unconfined except in so far as the subject matter and the scope and purpose of the regulations enable it to be said that a particular consideration is extraneous.256 Once enlivened by a finding that one or more of the grounds for declining to make a mandatory order is established, the discretion is at large, and there is no requirement for ‘clear and compelling’ reasons in addition to the ground for not making a return order.257 The subject matter of the regulations is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.258 It must, however, be a rare case in which return would be ordered once the grave risk exception has been established.259

The imposition of conditions on return 28.77 The practice has developed of imposing conditions on the party seeking the return of the child. Thus, in C v C260 the English Court of Appeal required, as a condition of returning the children to Australia, that the father undertake to the court not to enforce his custody rights under Australian law, and to provide

the wife and children with accommodation and funds until the matter could be heard by an Australian court. When a father refused to give similar undertakings in Re G (a minor) (abduction)261 the English Court of Appeal held the trial judge was justified in refusing the return of the child on the basis that the child would suffer serious psychological harm if provision were not made to allow the mother to accompany the child. In Australia, the Full Court allowed an appeal and quashed a return order made subject to multiple conditions after the primary judge had found the ‘grave risk’ exception satisfied, saying that there were so many difficulties involved in establishing satisfactory preconditions for the child’s return that the only proper exercise of discretion open, once the grave risk exception was established, was to refuse to make a return order.262 28.78 In Australia the High Court has said in De L v Director General New South Wales Department of Community Services that it is impossible to identify any specific and detailed criteria which govern the exercise of the power to impose such conditions. The basic proposition is that, like other discretionary powers given in such terms, the court has to exercise its discretion judicially, having regard to the subject matter, [page 683] scope and purpose of the regulations.263 In DP v Commonwealth Central Authority, Gaudron, Gummow and Hayne JJ said: There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.264

28.79 Undertakings given to a foreign court are not enforceable in Australia. In In the Marriage of McOwan265 a judge of the English High Court referred to the Chief Justice of the Family Court of Australia a complaint that the husband had failed to honour his undertakings to the English court. The Chief Justice of his own motion issued a summons to the effect that the Family Court would conduct an inquiry into the welfare of the children.266 Kay J held that the undertaking was not enforceable in Australia, nor could the Family Court on its own motion investigate the matter. As his Honour rightly acknowledged, the effect of his

decision may be to make English courts more reluctant to order the return of children to Australia.267 It is, however, submitted that the imposition of conditions beyond the travelling arrangements is not envisaged by the convention, which is based on the proposition that such matters are to be dealt with by the courts of the contracting state to which the child is returned.

Access 28.80 The Convention imposes, by Art 21, an obligation on central authorities ‘to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which those rights may be subject’.Art 21 does not provide for the recognition and enforcement of access rights as such, but merely that central authorities may initiate or assist in the institution of proceedings to enforce such rights. It is precatory, rather than obligatory in nature.268 28.81 Rights of access are defined in the Family Law (Child Abduction Convention) Regulations reg 2(1), as including ‘the right to take a child for a limited period of time to a place other than the child’s habitual residence’.269 A person who claims rights of access to a child resident in a Convention country may apply in writing to the Commonwealth Central Authority or one of the state or territorial authorities under reg 23(1). That application will then be forwarded to the central authority in that country. [page 684] 28.82 Conversely, the Commonwealth, state or territorial central authority may apply on behalf of a parent in a Convention country to a court having jurisdiction under the Family Law Act to organise or secure the effective exercise of rights of access to a child in Australia.270The court may, in response to an application by the central authority, make an order specifying with whom the child is to spend time or communicate, an order for the issue of a warrant to find or recover a child or for any other order the court considers appropriate to give effect to the Convention.271 In Police Commissioner of South Australia v Castell 272 it was held that the central authority could only apply to the court for an order giving effect to rights of access that have already been established in another convention country either by operation of law, or as a consequence of a judicial or administrative decision, or by reason of an appropriate agreement having legal

effect. However, reg 25 had been amended to overcome the effect of the decision in Castell such that it “now specifically enables the court to establish rights in Australia wherever necessary and to make orders for contact with a child in Australia whether or not an order exists in a convention country”.273 28.83 It has been held in New Zealand that the Convention imposes an obligation on the central authority to take steps to ensure rights of access.274 However, in England, it has been held that the Convention only imposes a duty on the central authority to arrange for solicitors who can make application on behalf of the foreign parent to an English court.275 Having regard to the precatory language of art 21, the obligation of the central authority cannot be put higher than that. 28.84 The provisions of Art 21 apply to a child who at the time of application is habitually resident in a Convention country. It need not be the country in which the order for access was made, although the latter must also be a Convention country.276 Furthermore, Art 21 does not impose an obligation to give effect to the foreign access order. An Australian court when seised of an application for access pursuant to Art 21 must exercise its own discretion and may in consequence enforce, vary or even refuse to make, the order for access.277 In exercising the discretion under reg 25A(1)(b) to make orders ‘appropriate to give effect to the Convention’, proper regard should be had to the purpose and intention of the convention and also to practicalities, including the welfare of the child (without making it the [page 685] paramount consideration).278 The principle that the best interests of the child are the paramount consideration does not apply to the making of such an order.279

Foreign Guardianship Orders 28.85 Insofar as a foreign guardianship order confers rights of custody over a child, the position is the same as discussed above. 28.86 However, traditionally the position of guardian at common law confers certain rights in relation to the management of the assets of the ward, which are not part of the functions of a custodian. As with foreign parenting orders, the

guardian, whether appointed by a court or by the operation of the law in the ward’s domicile, is not entitled to have his or her office confirmed in the forum. An Australian court may, at its discretion, confirm the domiciliary guardian or appoint a new guardian either in addition to, or in replacement of, the foreign guardian.280 28.87 There is, however, some doubt as to the status of a foreign guardian appointed under the law of the ward’s domicile whose authority has not been challenged in the courts of the forum. Some textwriters support the view that such a guardian can exercise the functions of a guardian appointed under the law of the forum until and unless the authority of the foreign guardian is questioned in the courts.281 But the position is uncertain. In Re Hellman’s Will 282 Lord Romilly MR held that the legal personal representative of a deceased who had bequeathed English funds to a minor domiciled abroad could not pay those funds to the minor’s guardian appointed under the law of his domicile, and directed that the funds be paid into court until the minor came of age. By way of contrast, in Re Chatard’s Settlement283 Kekewich J disagreed and held that funds not paid into court could be paid safely to the domiciliary guardian. If the funds were paid into court, the court has a discretion, which it will exercise in favour of the foreign guardian if satisfied that the funds will be properly applied for the benefit of the ward. In the Queensland case of Re Tudor, dec’d 284 McNaughton J held that funds within the jurisdiction ought not to be paid directly to the foreign guardian, but should be paid into court pending an application by the guardian for payment out to him. On such an application the principles laid down by Kekewich J should be applied. [page 686] 28.88 The position has been clarified in the Australian Capital Territory by the Testamentary Guardianship Act 1984 (ACT), s 5 of which defines as a ‘guardian’ for the purposes of the law of the Territory any guardian of a child appointed (a) in accordance with the Act or a law of a state; (b) by a federal court or a court of a state or territory; or (c) in accordance with the law of an overseas country or part of an overseas country or by a court thereof provided the appointment would be recognised in the Territory under the common law rules of private international law. _________________________

1.

Family Law Act 1975 (Cth) s 69ZK.

2.

See note 1 above, s 69H(1).

3.

See note 1 above, s 69H(4).

4.

Commonwealth Powers (Family Law — Children) Act 1986 (NSW); Commonwealth Powers (Family Law — Children) Act 1990 (Qld); Commonwealth Powers (Family Law) Act 1986 (SA); Commonwealth Powers (Family Law) Act 1987 (Tas); Commonwealth Powers (Family Law — Children) Act 1986 (Vic). The power so referred was exercised by the Family Law Amendment Act 1987 (Cth) s 24.

5.

Re Wakim, Ex parte McNally (1999) 198 CLR 511; Young v Lalic [2006] NSWSC 18; (2006) 197 FLR 27 at [43]–[47].

6.

Mulhall v Hartnell (1988) 91 FLR 240; 12 Fam LR 361; FLC 91-947; Young v Lalic [2006] NSWSC 18; (2006) 197 FLR 27 at [37]–[48]; Director-General, Department of Community Services; Re Jules (2008) 40 Fam LR 122; [2008] NSWSC 1193 at [7]–[8].

7.

That is, jurisdiction in relation to legitimate children. The jurisdiction of the Family Court of Western Australia in relation to ex-nuptial children is non-federal: see Family Court Act 1997 (WA) s 36(2).

8.

Family Law Act 1975 (Cth) s 69H(2); Family Law Act 1997 (WA) s 35.

9.

The common law bases of jurisdiction are considered below at 28.10–28.16.

10. Family Law Act 1975 (Cth) ss 69ZH(2) and 69ZE(2) which specify the way in which it applies to Western Australia. 11. Family Law Act, s 60F(2). 12. Family Court Act 1997 (WA) s 36(3). In addition, the Family Court of Western Australia may exercise the parens patriae jurisdiction of the Supreme Court on the grounds of nationality and ordinary residence: Corin v Corin (1991) 7 SR (WA) 124. 13. Family Court Act 1997 (WA) s 36(4). 14. Family Law Act, s 69H(3). 15. Family Law Act, s 69K. 16. Family Law Regulations 1984, P IIAB Service under the Hague Service Convention. 17. Family Law Act 1975 (Cth) s 69ZJ. This is apparently in pursuance of the ‘diversity’ jurisdiction of Federal courts. 18. Section 69ZK applies to children under care by operation of a state or territorial child welfare law. A court having jurisdiction under s 69H must not make an order (other than one about child maintenance) in respect of such a child: see note 17 above. As to the scope of s 69ZK, and when a child is under care by operation of a state child welfare law, see Director-General, Department of Family & Community Services; Re TVK [2012] NSWSC 1629. 19. See Chapter 5 above. 20. Re P (GE) (an Infant) [1965] Ch 568 at 584–5 (Lord Denning MR). 21. Re Raffel, Infants [1967] QWN 39; Director-General, New South Wales Department of Community Services v Y [1999] NSWSC 644 at [95]–[97]; Director-General, Department of Community Services; Re Jules (2008) 40 Fam LR 122; [2008] NSWSC 1193 at [7]–[8] Director-General, Department of Community Services; Re Thomas (2009) 41 Fam LR 220; [2009] NSWSC 217. 22. See Director-General, New South Wales Department of Community Services v Y [1999] NSWSC 644 at [95]–[97]; Director-General, Department of Community Services; Re Jules (2008) 40 Fam LR 122; [2008] NSWSC 1193 at [7]–[8].

23. Mulhall v Hartnell (1988) 91 FLR 240; 12 Fam LR 361; FLC 91-947; Young v Lalic [2006] NSWSC 18; (2006) 197 FLR 27 at [37]–[48]. 24. A v B [1979] 1 NSWLR 57. 25. Re C (an infant) (1981) 8 Fam LR 257. 26. See note 25 above, at 266 (QSC, Master Lee QC). 27. McManus v Clouter (No1) [1980] 1 NSWLR 1; (1980) 5 Fam LR 650; Corin v Corin (1991) 7 SR (WA) 124. 28. Holden v Holden [1968] VR 334. 29. Glasson v Scott (1973) 1 ALR 370. 30. Brown v Kalal (1986) 11 Fam LR 349 at 351 per Young J. 31. McManus v Clouter (No1) [1980] 1 NSWLR 1; (1980) 5 Fam LR 650. 32. Re Willoughby (an infant) (1885) 30 Ch D 324; Corin v Corin (1991) 7 SR (WA) 124. 33. Kelly v Panayiotou [1980] 1 NSWLR 15; and see also McManus v Clouter (No 2) (1980) 5 Fam LR 861; (1980) 29 ALR 101 at 118 per McLelland J; and Romeyko v Whackett (1980) 6 Fam LR 400 at 408 per Matheson J. 34. (1981) 10 NTR 32. 35. Glasson v Scott (1973) 1 ALR 370 at 378–80 per Larkins J, following Denaro v Denaro [1954] QWN 17 and Re Cabassi [1955] QWN 71. 36. [1979] 1 NSWLR 57. 37. [1980] 1 NSWLR 1; (1980) 5 Fam LR 650. 38. Cf McManus v Clouter (No 2) (1980) 29 ALR 101 per McLelland J. 39. Glasson v Scott (1973) 1 ALR 370. 40. Kelly v Panayiotou [1980] 1 NSWLR 15. 41. [1981] Qd R 436. 42. Brown v Kalal (1986) 11 Fam LR 349 at 350 per Young J. 43. McManus v Clouter (No 2) (1980) 29 ALR 101 at 111 per McLelland J. 44. FCR r 10.42 item 11 (proceeding in which the court has jurisdiction, seeking relief in relation to the guardianship, protection, or care, welfare and development of a person under 18 years (whether or not the person is in Australia)); UCPR (Qld) r 124(1)(w) (where the proceeding is about a person under a legal incapacity who is domiciled or present in, or a resident of, Queensland); RSC (Vic) Ch I r 7.06(a) (i) (whether or not the minor is resident in Victoria). Supreme Court Civil Rules 2006 (SA) r 40(1)(k) allows service for service without prior leave of the court where ‘the action is brought under a statute of the Commonwealth or the State’. The NT Supreme Court Rules do not make provision for service ex juris in these circumstances, see r 7.01. The Court Procedure Rules 2006 (ACT) r 6501(1)(x) provides that service outside Australia may be effected without prior leave where the proceeding is in relation to a ‘person with a legal disability who is domiciled or present in, or a resident of, the ACT’, otherwise r 6505 provides for the granting of leave for service ex juris in respect of matters not covered by r 6501. 45. UCPR (NSW) Sch 6 para (v). 46. Supreme Court Rules 2000 (Tas) Div 10 r 147A. 47. (1994) 181 CLR 639; 122 ALR 1. 48. See De L v Director General New South Wales Department of Community Services (1996) 187 CLR

640; 139 ALR 417, holding that the paramountcy principle does not apply to decisions under the Child Abduction Convention. 49. In the Marriage of Schwarz (1985) 10 Fam LR 235; In the Marriage of Taylor (1988) 12 Fam LR 423; and see the remarks of Fogarty J in In the Marriage of Gilmore (1993) 16 Fam LR 285 at 294. 50. In the Marriage of Scott (1991) 14 Fam LR 873 at 879; In the Marriage of Erdal (1992) 15 Fam LR 465 at 468–9; In the Marriage of Gilmore (1993) 16 Fam LR 285; In the Marriage of van Rensburg and Paquay (1993) 16 Fam LR 680. 51. Formerly, Family Law Act 1975 (Cth) s 64(1)(a). 52. Family Law Act 1975 (Cth) s 60CA. This provision does not apply to all proceedings in relation to children; for example, it does not apply to the making of maintenance orders or injunctions under s 68B of the Act: see Monticello v McTiernan (1995) 19 Fam LR 108 at 142. Cf Flanagan v Handcock (2000) 27 Fam LR 615 where the majority held that while the paramountcy principle has no direct application to injunctions under s 68B it is “certainly relevant and needed to be given careful consideration” (per Kay and Holden JJ at [42]). Finn J held that the paramountcy principle was the “essential test” for s 68B injunctions, at [49]. Special leave to appeal was refused: Flanagan v Handcock (2001) 181 ALR 184. 53. Cf CDJ v VAJ (1998) 197 CLR 172, holding that an appellant court exercising the discretion to admit further evidence on appeal was required to consider the effect it might have in determining what the best interests of the child required: Relationships Australia v Pasternak (1996) 20 Fam LR 604 at 613 per Lindenmayer, Kay and Smithers JJ. 54. In the Marriage of Karides and Wilson (1998) 23 Fam LR 435. In B v B (Re Jurisdiction) (2003) 31 Fam LR 7, the Full Court of the Family Court held that a stay application was to be decided according to forum non conveniens principles, and in particular the “clearly inappropriate forum” test, but that while the paramountcy principle did not apply directly, the best interests of the child were a relevant consideration, the court holding that “[i]n general, it may be said that the best interests principle does not govern various procedural and jurisdictional matters that arise prior to and in the course of parenting proceedings but that the child’s interests will normally be a relevant matter in exercising discretion on such matters and may, in many situations, be the most important matter: at [39]. This was approved in EJK v TSL (2006) 35 Fam LR 559, at [74], where the court distinguished between the exercise of powers under the Act and the exercise of the inherent power to grant a stay, holding that if it is appropriate for a court pursuant to its inherent power to grant a stay, then the best interests principle is not the paramount consideration, although the best interests of a child may be highly relevant or deserving of the greatest weight in considering whether the court is a clearly inappropriate forum (at [74]); and that if a parenting order is to be made, even ancillary to the stay, the paramountcy principle is then applicable (at [84]). 55. EJK v TSL (2006) 35 Fam LR 559 at [84]; Karim v Khalid (2007) 38 Fam LR 300 (Finn, Coleman and May JJ); Coburn v Sakura (2011) 46 Fam LR 318; Randle v Randle [2011] FamCA 830. See also ‘Stay Proceedings and Forum Non Conveniens in Recent Australian Family Law’ (2008) 57(3) ICLQ 649. 56. Norman v Norman (No 1) (1968) 12 FLR 29; Randle v Randle [2011] FamCA 830. 57. In the Marriage of Schwarz (1985) 10 Fam LR 235. 58. Monticello v McTiernan (1995) 19 Fam LR 108, interpreting a provision that now appears as Family Law Act 1975 (Cth) s 68B(1). In such an application, the welfare of the child is a relevant, but not the paramount, consideration. 59. Szintay v Szintay (1954) 73 WN (NSW) 330; In the Marriage of Karides and Wilson (1998) 23 Fam LR 435. 60. Director-General, Department of Community Services; Re Sophie [2008] NSWSC 1239. 61. In the Marriage of Scott (1991) 14 Fam LR 873 (overruled on another point by ZP v PS (1994) 181

CLR 639); In the Marriage of Karides and Wilson (1998) 23 Fam LR 435. In Karides and Wilson at [45], Kay J asked rhetorically how it could be in the best interests of the child to require the child’s parents to litigate in respect of an order that will have no binding effect. 62. In the Marriage of Soares (1989) 13 Fam LR 163 (overruled on another point by ZP v PS (1994) 181 CLR 639). 63. In the Marriage of Chong (1992) 15 Fam LR 629 (overruled on another point by ZP v PS (1994) 181 CLR 639). 64. In the Marriage of Soares (1989) 13 Fam LR 163; In the Marriage of Erdal (1992) 15 Fam LR 465 (overruled on another point by ZP v PS (1994) 181 CLR 639). 65. In the Marriage of van Rensburg and Paquay (1993) 16 Fam LR 680 (overruled on another point by ZP v PS (1994) 181 CLR 639). 66. McManus v Clouter (No 2) [1980] 1 NSWLR 27 (McLelland J). 67. In the Marriage of El Alami (1987) 11 Fam LR 852 at 856; In the Marriage of Antoniou (1990) 14 Fam LR 90. 68. In the Marriage of Taylor (1988) 12 Fam LR 423. 69. (1953) 88 CLR 158 at 160. 70. [1970] AC 668. 71. See note 70 above, at 720. See also In the Marriage of van Rensburg and Paquay (1993) 16 Fam LR 680 at 686. 72. [1951] AC 352; see also Kades v Kades (1961) 35 ALJR 251 at 254 per Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ and MW v Director-General, Department of Community Services [2008] HCA 12 at [52] per Gummow, Heydon and Crennan JJ. 73. [1951] AC 362, at 364. 74. In the Marriage of Schwarz (1985) 10 Fam LR 235. See above at 28.17, 28.18, and 28.21. 75. See note 74 above, at 237. 76. In the Marriage of Reihana (1980) 6 Fam LR 134. See also Re L (minors) [1974] 1 All ER 913 at 925– 6; applied in G v G (minors) (abduction) [1991] FCR 12. 77. In the Marriage of Mittelman (1984) 9 Fam LR 724; In the Marriage of Schwarz (1985) 10 Fam LR 235. 78. In the Marriage of Barrios and Sanchez (1989) 13 Fam LR 477; In the Marriage of van Rensburg and Paquay (1993) 16 Fam LR 680. See also G v G (minors) (abduction) [1991] FCR 12 Re M (abduction: non-convention country) [1995] 1 FLR 89 at 98; D v D (child abduction: non-convention country) [1994] 1 FLR 137; Re A (minors) (abduction: habitual residence) [1996] 1 All ER 24. 79. ZP v PS (1994) 181 CLR 639; 122 ALR 1; 17 Fam LR 600 at 618–19 (Brennan and Dawson JJ); see also EJK v TSL (2006) 35 Fam LR 559 at [84]; Karim v Khalid (2007) 38 Fam LR 300 (Finn, Coleman and May JJ); Coburn v Sakura (2011) 46 Fam LR 318; Randle v Randle [2011] Fam CA 830; Re P (a minor) (child abduction: non-convention country) [1997] Fam 45. 80. Clague v Graves (1987) 11 Fam LR 494. 81. In the Marriage of Schenck (1981) 7 Fam LR 170 at 178. 82. Re A (minors) (abduction: habitual residence) [1996] 1 All ER 24. 83. In the Marriage of Raja Bahrin (1986) 11 Fam LR 233. In this case the court’s particular concern was that the mother may not have adequate standing in the overseas proceeding, which in turn may affect the welfare of the child.

84. In the Marriage of Kress (1976) 2 Fam LR 11,330; In the Marriage of Schenck (1981) 7 Fam LR 170. 85. Family Law Regulations (Cth) reg 14(a)(i); Sch 1A. 86. See, for example, Director-General, Department of Family,Youth and Community Services v Reissner (1999) 25 Fam LR 330 at 346–7 (Lindenmayer J), pointing out the disadvantages of using the s 70G registration procedure rather than the mechanisms provided in the Hague Abduction Convention, which was used in that case. 87. In the Marriage of Blair and Jenkins (1988) 12 Fam LR 85 at 92. 88. See the definition of ‘excluded order’ in s 4. As to the meaning of ‘interim order’, see In the Marriage of Uriarau (1986) 11 Fam LR 657 at 661 per Nygh J. 89. Family Law Act 1975 (Cth) ss 4 (definition of ‘excluded order’), 70G. 90. Family Law Regulations (Cth) reg 23(1), (1A), (2). 91. See note 90 above, reg 23(6). 92. In the Marriage of Trnka (1984) 10 Fam LR 213. 93. Family Law Act 1975 (Cth) s 70H. 94. In the Marriage of Domroese and Leggatt (1996) 20 Fam LR 213 at 228. 95. In the Marriage of Trnka (1984) 10 Fam LR 213. 96. In the Marriage of Greenfield and Pawson (1984) 9 Fam LR 606. 97. In the Marriage of Trnka (1984) 10 Fam LR 213. 98. In the Marriage of Greenfield and Pawson (1984) 9 Fam LR 606. 99. In the Marriage of Mentor (1981) (1982) 60 FLR 89. 100. Family Law Act 1975 (Cth) s 70K. 101. Family Law Act, s 70L. 102. In the Marriage of Greenfield and Pawson (1984) 9 Fam LR 606, a decision in relation to the predecessor of s 70J (s 68(3)). 103. Khamis v Khamis (1978) 4 Fam LR 410. 104. In the Marriage of Schwarz (1985) 10 Fam LR 235 at 236; ZP v PS (1994) 181 CLR 639; 122 ALR 1; 17 Fam LR 600. 105. Care of Children Act 2004 (NZ) ss 81–91; Reciprocal Enforcement of Custody Orders Act 1978 (PNG); Uniform Child Custody Jurisdiction Act (USA), discussed in Bodenheimer, ‘Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction under the UCCJA’ (1981) 14 Fam LQ 203. 106. The convention appears as Sch 1 to the Family Law (Child Abduction Convention) Regulations. For a general analysis, see Beaumont and McEleavy, The Hague Convention on International Child Abduction, Oxford University Press, Oxford, 1999. 107. DP v Commonwealth Central Authority (2001) 206 CLR 401 at [25] (Gaudron, Gummow and Hayne JJ); see also MHP v Director-General, Department of Community Services (2000) 26 Fam LR 601 at [56], refusing to ‘read in’ a convention definition to a provision of the regulations. 108. See, Pérez-Vera, Explanatory Report of the Convention on the Civil Aspects of International Child Abduction, Actes et Documents of the XIVth Session, 1982, vol III, p 426. 109. As was done in DP v Commonwealth Central Authority (2001) 206 CLR 401 at [34]–[36]; 180 ALR 402 at 412–13 (Gaudron, Gummow and Hayne JJ). 110. (1996) 187 CLR 640; 139 ALR 417. The High Court declined an invitation to reconsider its decision in

De L in DJL v Central Authority (2000) 201 CLR 226; 170 ALR 659. 111. See note 110 above. 112. [1988] 1 FLR 365 at 369 cited in C v C [1989] 1 WLR 654. 113. De L v Director General New South Wales Department of Community Services (1996) 187 CLR 640; 139 ALR 417. 114. Director-General of Family and Community Services (NSW) v Davis (1990) 14 Fam LR 381 at 384 per Nygh J; see also Garning & Department Of Communities, Child Safety And Disability Services (Discharge Application) [2012] FamCA 839 at [4]. 115. See Family Law (Child Abduction Convention) Regulations reg 18(1)(c). 116. For a comprehensive review of the cases on the convention, see Kay, ‘The Hague Convention — Order or Chaos?’ (2005) 19 AJFL 245. 117. Convention on the Civil Aspects of Child Abduction 1980 Art 4. See the definition of ‘child’ in Family Law (Child Abduction Convention) Regulations reg 2(1). 118. In relation only to the Special Administrative Regions of Hong Kong and Macau. 119. The Former Yugoslav Republic of Macedonia. 120. Extended to include the following territories: Bailiwick of Jersey, Bermuda, Cayman Islands, Falkland Islands, Isle of Man, and Montserrat. 121. Family Law (Child Abduction Convention) Regulations Sch 2. 122. In the Marriage of Barrios and Sanchez (1989) 13 Fam LR 477; In the Marriage of van Rensburg and Paquay (1993) 16 Fam LR 680. See also Re A (minors) (abduction: habitual residence) [1996] 1 All ER 24. The influence of the Hague Convention has reached far beyond its actual scope, with courts around the world giving general recognition to the principle that abducted children should ordinarily be returned to their place of habitual residence in order for their futures to be determined by the courts of that place. See, for example: (ECHR) Hansen v Turkey [2003] 2 FCR 97; Bajrami v Albania (12 December 2006, INCADAT HC/E/898); (CAN) The Matter of the Children’s Law Reform Act, de Martinez v Martinez-Jarquin (Ontario, 18 July 1990, INCADAT HC/E/CA368); (United Kingdom) Re JA (child abduction: non-convention country) [1998] 1 FLR 231; Re E (abduction: non-convention country) [1998] 2 FLR 642; Al Habtoor v Fotheringham [2001] EWCA Civ 186; Re S (children) (abduction: asylum appeal) [2002] EWCA Civ 843; 1 WLR 2548; Re H (child abduction: mother’s asylum) [2003] EWHC 1820; 2 FLR 1105; Re J (a child) (return to foreign jurisdiction: convention rights) [2004] EWCA Civ 417; Re J (a child) [2005] UKHL 40; (Western Samoa) CW v HR and DS (WSSC, 19 February 1997, INCADAT HC/E/WS332). 123. Family Law (Child Abduction Convention) Regulations reg 16(1A)(b); Convention on the Civil Aspects of Child Abduction 1980 Art 35; In the Marriage of Gollogly and Owen (1989) 13 Fam LR 622. But see State Central Authority v Ayob (1997) 21 Fam LR 567 (removal of child from convention country (USA) to non-convention country (Malaysia) a ‘removal’ for the purposes of later application in Australia. Note: Family Law (Child Abduction Convention) Regulations reg 2(1C)). 124. In the Marriage of Gollogly and Owen (1989) 13 Fam LR 622; Re H (minors) (abduction: custody rights) [1991] 2 AC 476. 125. See Chapter 13 above for a general consideration of the concept of habitual residence. 126. In the Marriage of Hanbury-Brown (1995) 20 Fam LR 334. For the contrary view that both a lacuna and multiple habitual residence are not inconsistent with the convention, see Beaumont and McEleavy, 1999, pp 90–1. 127. Cooper v Casey (1995) 18 Fam LR 433. 128. LK v Director-General, Department of Community Services (2009) 237 CLR 582 (2009) 253 ALR 202;

40 Fam LR 495; [2009] HCA 9 at [32]. 129. Cooper v Casey (1995) 18 Fam LR 433; see also De Lewinski v Department of Community Services (1997) FLC 92-737. 130. (2009) 237 CLR 582 (2009) 253 ALR 202; 40 Fam LR 495; [2009] HCA 9 at [32]; see also State Central Authority v Camden (2012) 46 Fam LR 583. 131. See note 130 above, at [23]. 132. See note 130 above, at [27]. 133. See note 130 above, at [28], [29], [33]. 134. See note 130 above, at [34]. 135. See note 130 above, at [33]. 136. See note 130 above, at [40], [44]. 137. (1996) 21 Fam LR 446 (Fogarty and Baker JJ, Finn J dissenting). 138. A v GS (2004) 32 Fam LR 583; 187 FLR 240 (Finn, May and Carmody JJ). 139. MHP v Director-General, Department of Community Services (2000) 26 Fam LR 601 at 613 (Ellis, Coleman and Flohm JJ). 140. See note 139 above. 141. (2000) 26 Fam LR 601. 142. Family Law (Child Abduction Convention) Regulations reg 6(2). 143. See note 142 above, reg 14(1). 144. Family Law (Child Abduction Convention) Regulations reg 15(1). 145. See note 144 above, reg 15(4). This implements art 11 of the convention. 146. In the Marriage of Gazi [1992] FamCA 80; 1992) 16 Fam LR 180; (1993) FLC 92-341; In the Marriage of Hanbury-Brown (1995) 20 Fam LR 334. See also Re F (minor) (abduction: rights of custody abroad) [1995] 3 All ER 641 at 647–8 (Butler-Sloss LJ); Re E (children) (abduction: custody appeal) [2011] UKSC 27; [2012] 1 AC 144 at [32]. 147. MW v Director-General, Department of Community Services (2008) 82 ALJR 629 at 639, 640 at [45]– [50]; 244 ALR 205 at 216–18; [2008] HCA 12; see also LK v Director-General, Department of Community Services (2009) 253 ALR 202; 83 ALJR 525; 40 Fam LR 495; [2009] HCA 9 at [15]. 148. Gazi & Gazi [1992] FamCA 80; 1992) 16 Fam LR 180; (1993) FLC 92-341; Police Commissioner of South Australia v Temple (No 2) (1993) FLC 92-424; Hanbury-Brown & Hanbury-Brown; Director General of Community Services [1996] FamCA 23; (1995) 20 Fam LR 334 (1996) FLC 92-671; Director-General, NSW Department of Community Services and JLM [2001] FamCA 1338; (2001) FLC 93-090 at p 88,603; Director-General, Department of Families, Youth and Community Care v Bennett [2000] FamCA 253; (2000) FLC 93-011 at p 87,223; Regino and Regino (1995) FLC 92-587; State Central Authority v Weston [2010] FamCA 599 at [21]-[26]. 149. Department of Families, Youth and Community Care v Moore (1999) 24 Fam LR 475. 150. Director-General, Department of Community Services Central Authority v RMS (1999) 27 Fam LR 259. 151. DM v Director-General, Department of Community Services (1998) 24 Fam LR 168. 152. In the Marriage of Murray and Tam, Director Family Services ACT (intervener) (1993) 16 Fam LR 982 at 1000–1 per Nicholson CJ and Fogarty J.

153. Family Law (Child Abduction Convention) Regulations reg 16(1). 154. Police Commissioner of South Australia v Temple (1993) 17 Fam LR 144. 155. MHP v Director-General, Department of Community Services (2000) 26 Fam LR 601 at 618 per Ellis, Coleman and Flohm JJ. 156. Family Law (Child Abduction Convention) Regulations reg 16(2). 157. Graziano v Daniels (1991) 14 Fam LR 697 at 703; see also State Central Authority & Hajjar [2010] FamCA 648 at [25]. 158. Director-General, Department of Families, Youth and Community Care v Thorpe (1997) 141 FLR 44 at 53 (Lindenmayer J), not following Director-General of the Department of Community Services (Central Authority) v Apostolakis (1996) 21 Fam LR 1 (date of application). 159. Director-General, Department of Families,Youth and Community Care v Thorpe (1997) 141 FLR 44. 160. (1991) 14 Fam LR 697. 161. (1998) 24 Fam LR 178 at [51]–[52] per Nicholson CJ, Holden and Dessau JJ. 162. (1999) 24 Fam LR 495. 163. See note 162 above, at 502 per Ellis ACJ and Chisholm J. See also Beaumont and McEleavy, 1999, pp 206–8. 164. This confirms the position taken by Barry J in In the Marriage of Gollogly and Owen (1989) 13 Fam LR 622. 165. In the Marriage of Hanbury Brown (1995) 20 Fam LR 334, following Re H (minors) (abduction: custody rights) [1991] 2 AC 476; [1992] 1 Fam CR 45; see also Re S (a minor) (custody: habitual residence) [1998] AC 750 at 756 (Lord Slynn). 166. In the Marriage of Hanbury-Brown (1995) 20 Fam LR 334. 167. See note 166 above. 168. Family Law (Child Abduction Convention) Regulations reg 2(1C); State Central Authority v Ayob (1997) 21 Fam LR 567 (removal of child from the United States to Malaysia (a non-convention country) was ‘removal’ for purposes of application made in Australia for return of child to United States). 169. See Re H & Anor (Minors) [1991] 2 AC 476 (HL) at 500B-C; Murray v Director, Family Services, ACT (1993) FLC 92-416 (FC); Director-General, Department of Families and BW (2003) FLC 93-150; Department of Communities v Clementine [2010] FamCA 746 at [57] – [58]. 170. Department of Health and Community Services v Casse (1995) 19 Fam LR 474 at 485 per Kay J. 171. In the Marriage of Murray and Tam; Director of Family Services (ACT) (Intervener) (1993) 16 Fam LR 982 at 992–3 per Nicholson CJ and Fogarty J; In the Marriage of Hanbury-Brown (1995) 20 Fam LR 334. 172. Re B (minors) (abduction) (No 2) [1993] 1 FLR 993; Re A Z (a minor) (abduction: acquiescence) [1993] 1 FLR 682. 173. Re S (minors) (abduction: wrongful retention) [1994] Fam 70; 2 WLR 228. 174. Re S (a minor) (custody: habitual residence) [1998] AC 750 at 756 per Lord Slynn. 175. See note 174 above, at 768. 176. Secretary, Attorney-General’s Department v TS (2000) 27 Fam LR 376 at 391 per Nicholson C J. 177. Director-General Department of Community Services v Crowe (1996) 21 Fam LR 159.

178. Family Law (Child Abduction Convention) Regulations reg 29(5)(a). 179. See note 178 above, reg 29(4). 180. See note 178 above, reg 4(3); Convention on the Civil Aspects of Child Abduction 1980 Art 3. 181. In the Marriage of Gsponer (1988) 12 Fam LR 755 at 762. 182. Re J (a minor) (abduction) [1990] 2 AC 562. 183. See Art 5 of the convention. 184. See Re H (child abduction: rights of custody) [2000] 2 All ER 1 at 6 (Thorpe LJ, saying the interpretation given to Art 5 ‘should be purposive and wide’); and Re B (minor) (abduction) [1994] 2 FLR 249 at 260 (Waite J, saying that in most cases that will involve giving the term the widest sense possible). 185. Secretary, Attorney-General’s Department v TS (2000) 27 Fam LR 376 at 389 per Nicholson C J. 186. C v C (abduction: rights of custody) [1989] 2 All ER 465; [1989] 1 WLR 654; followed by the Full Court of the Family Court of Australia in In the Marriage of Selina (Appeal No 52 of 1991, 22 May 1991, unreported); and by Lindenmayer J at first instance in Director General, Department of Families, Youth and Community Care v Hobbs [1999] Fam CA 2059; see also the decisions of the Constitutional Court of South Africa in Sonderup v Tondelli 2001 (1) SA 1171 (CC); and the Israeli High Court in Foxman v Foxman (unreported) 28 October 1992. The cases are collected and authoritatively considered by Baroness Hale in Re D (a child) (abduction: rights of custody) [2007] 1 AC 619 at [29] 187. Secretary, Attorney-General’s Department v TS (2000) 27 Fam LR 376. See also Thomson and Thomson [1994] 3 SCR 551; Re H (child abduction: rights of custody) [2000] 2 AC 291. 188. Secretary, Attorney-General’s Department v TS (2000) 27 Fam LR 376 at 389 per Nicholson CJ (obiter). 189. Director-General, Department of Families,Youth and Community Care (Qld) v Hobbs [1999] Fam CA 2059. But for a criticism of the tendency to ‘merge’ custody and access rights, see Beaumont and McEleavy, 1999, pp 82–3. 190. In the Marriage of Gsponer (1988) 12 Fam LR 755 at 762. See also Family Law Act 1975 (Cth) s 111B(4)(a), which provides that for the purposes of determining whether a parent has custodial rights under Australian law, a parent should be regarded as having such rights unless deprived of parental responsibility by court order. 191. (2008) 244 ALR 205; [2008] HCA 12 (Gummow, Heydon and Crennan JJ). 192. In New Zealand, it has been held that rights of access can in themselves amount to “rights of custody”: G v B [1995] NZFLR 49; D v C [1999] NZFLR 97; see also Hunter v Murrow (abduction: rights of custody) [2005] 2 FLR 1119. 193. Director-General Department of Community Services v Crowe (1996) 21 Fam LR 159. 194. (1987) 11 Fam LR 773. 195. See note 194 above, at 779. See also Re B-M (wardship) (jurisdiction) [1993] 1 FLR 979. It was said that this has little effect on the right of recovery, in that if the ward were removed from England, that would be in breach of the court’s right of custody: B v B (abduction: custody rights) [1993] Fam 32; but the regulations do not accommodate a convention application by a parent asserting breach of the rights of custody of a court: MW v Director-General, Department of Community Services (2008) 244 ALR 205; [2008] HCA 12 per Gummow, Heydon and Crennan JJ. 196. See note 194 above, at 779. 197. (1993) 16 Fam LR 982 at 993 (Nicholson CJ and Fogarty J). 198. In the Marriage of Murray and Tam; Director of Family Services (ACT) (Intervener) (1993) 16 Fam

LR 982. 199. Family Law (Child Abduction Convention) Regulations reg 17(2). See also Secretary, AttorneyGeneral’s Department v TS (2000) 27 Fam LR 376, where the Australian Central Authority sought clarification from the New Zealand Department of Courts about whether a child’s father had ‘rights of custody’ under the law of New Zealand, the country of the child’s habitual residence. The New Zealand Department of Courts referred the matter to the New Zealand court for determination of that question. 200. Re D (a child) (abduction: foreign custody rights) [2006] UKHL 51; [2007] 1 AC 619; cf Fairfax v Ireton [2009] NZCA 100; [2009] NZFLR 433; Hunter v Morrow [2005] EWCA Civ 976; [2005] 2 FLR 1119 (NZ declaration of wrongfulness not followed where NZ courts took a uniquely expansive view of rights of custody to include rights of access). 201. Director-General of Family and Community Services (NSW) v Davis (1990) 14 Fam LR 381 at 384 per Nygh J; Graziano v Daniels (1991) 14 Fam LR 697 at 703 per Baker, Nygh and Gun JJ; DirectorGeneral of the Department of Community Services (Central Authority) v Apostolakis (1996) 21 Fam LR 1 at 7 per Moss J; Townsend v Department of Family, Youth and Community Care (1999) 24 Fam LR 495; DP v Commonwealth Central Authority (2001) 206 CLR 401 at [39]; 180 ALR 402 at 414 per Gaudron, Gummow and Hayne JJ, at 435 per Kirby J; Re E (children) (abduction: custody appeal) [2011] UKSC 27; [2012] 1 AC 144 at [32]. 202. DP v Commonwealth Central Authority (2001) 206 CLR 401 at [41]–[45]; 180 ALR 402 at 414–15 per Gaudron, Gummow and Hayne JJ. Their Honours said that this did not mean that the exceptions should be ‘narrowly construed’: cf see note 201 above, 434–5 per Kirby J; Director-General of Family and Community Services (NSW) v Davis (1990) 14 Fam LR 381 at 384 per Nygh J. 203. Family Law (Child Abduction Convention) Regulations reg 18(1). 204. See note 203 above, reg 16(3)(a). 205. (1996) 21 Fam LR 159. See also DP v Commonwealth Central Authority (2001) 206 CLR 401 at [27]; 180 ALR 402 at 410 per Gaudron, Gummow and Hayne JJ. 206. For useful reviews of the authorities on acquiescence in this context, see Director-General, Department of Families,Youth and Community Care v Thorpe (1997) 141 FLR 44 at 57 – 59 per Lindenmayer J; and Re H (minors) (abduction: acquiescence) (1998) AC 72 at 87-90 per Lord Browne-Wilkinson; cited extensively in Department of Communities v Clementine [2010] Fam CA 746. 207. Department of Health and Community Services v Casse (1995) 19 Fam LR 474; Central Authority v Perry (1995) 20 Fam LR 380; Department of Communities v Clementine [2010] FamCA 746. 208. Department of Health and Community Services v Casse (1995) 19 Fam LR 474. 209. Re A (minors) (abduction: custody rights) [1992] Fam 106 (EWCA). See also Director-General, Department of Families, Youth and Community Care v Thorpe (1997) 141 FLR 44 at 59 per Lindenmayer J: acquiescence may be passive, by conduct, as well as active, by words. 210. Director-General, Department of Families,Youth and Community Care v Thorpe (1997) 141 FLR 44 at 58 per Lindenmayer J. 211. Commissioner of Police (WA) v Dormann (1997) FLC 92-766. 212. Central Authority v Perry (1995) 20 Fam LR 380. Compare Re A (minors) (abduction: custody rights) [1992] Fam 106, where a letter expressing resignation at the fact of removal was held to amount to acquiescence. 213. W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211. 214. Re B (minors) (abduction) (No 2) [1993] 1 FLR 993. 215. In the Marriage of van Rensburg and Paquay (1993) 16 Fam LR 680. 216. Re A (minors) (abduction: custody rights) [1992] Fam 106 at 199–120 per Stuart-Smith LJ and 123 per

Lord Donaldson of Lymington MR but cf. the dissent by Balcombe LJ at 118; see also the criticism of Re A by Kay J in State Central Authority and Ayoub (1997) 21 Fam LR 567 at 578–9, and Beaumont and McEleavy, 1999, pp 118–19. 217. Re A (abduction: custody rights) [1992] Fam 106; see also Director-General, Department of Families, Youth and Community Care v Thorpe (1997) 141 FLR 44 at 58 - 59 per Lindenmayer J. 218. Z v SS (child abduction) [2008] All ER (D) 234. 219. Kilah v Director-General, Department of Community Services [2008] FamCAFC 81 per Bryant CJ, Coleman and Thackray JJ; overturned in LK v Director-General, Department of Community Services [2009] HCA 9 where the High Court’s disagreement with the Family Court’s decision as to the habitual residence of the children disposed of the appeal, so that the question of the exercise of discretion where there was a withdrawal of consent was not dealt with, at [50]. 220. Family Law (Child Abduction Convention) Regulations reg 16(3)(b). 221. (1988) 12 Fam LR 755. 222. [1988] 1 FLR 365 at 372. 223. (1990) 14 Fam LR 381. 224. See note 223 above, at 385 per Nygh J. See also Damiano v Damiano [1993] NZFLR 548. 225. (1988) 12 Fam LR 755 at 768. This was affirmed by the Full Court in In the Marriage of Murray and Tam; Director of Family Services (ACT) (Intervener) (1993) 16 Fam LR 982 at 1001 per Nicholson CJ and Fogarty J. 226. See note 225 above, at 769. See also Re E (a minor) (abduction) [1993] 1 FLR 135. See Beaumont and McEleavy, 1999, pp 142–3, who describe this as the general practice in the common law countries. 227. (2001) 206 CLR 401. 228. See note 227 above, at [41] per Gaudron, Gummow and Hayne JJ. 229. See note 227 above, at [128]–[129] per Kirby J dissenting. 230. See note 227 above. 231. Genish-Grant v Director-General, Department of Community Services (2002) 29 FamLR 51. 232. Department of Community Services v Carmichael [2008] Fam CA 690 (as in the case of Zimbabwe during 2008 and the deprivation and social unrest associated with the deteriorating economic situtation). 233. DP v Commonwealth Central Authority (2001) 206 CLR 401 234. Friedrich v Friedrich (1996) 78 F 3d 1060 (USCA, 6th Cir 1996), 1069; Tahan v Duquette 613 A 2d 486 (1992); Re S (abduction: intolerable situation: Beth Din) [2000] 1 FLR 454 (respondent mother contended that return to Israel would place the children in an intolerable situation because the father’s influence was such that she would be unable to get justice from the Israeli religious court, and as a woman would be discriminated against because she would be unable to obtain a Get without the father’s consent; but the Court ordered the children’s return to Israel: the mother was an orthodox Jew who was raising her children as orthodox Jews and it was by her choice that she was to be judged by the religious courts in Israel rather than the civil courts, and she could not, therefore, claim that the application of the rulings of the religious courts breached her or her children’s human rights); DP v Commonwealth Central Authority (2001) 206 CLR 401 at 414, at [39]. 235. Department of Community Services v Carmichael [2008] Fam CA 690. 236. Genish-Grant v Director-General, Department of Community Services (2002) 29 Fam LR 51. But see the criticism of this decision by Schuz, ‘Returning Abducted Children to Israel and the Intifada’ (2003) 17 AJFL 297.

237. C v C (abduction: rights of custody) [1989] 2 All ER 465 at 470 - 471 (Butler-Sloss LJ); DirectorGeneral of Family and Community Services (NSW) v Davis (1990) 14 Fam LR 381 at 386 (Nygh J). 238. Director-General, Department of Families,Youth and Community Care v Bennett (2000) 26 Fam LR 71 at 82, at [47] (Kay, Coleman and Barlow JJ). DP v Commonwealth Central Authority (2001) 206 CLR 401, and in Director-General, Department of Families v RSP [2003] Fam CA 623 (risk of suicide by mother if child to be returned). In McDonald v Director-General, Department of Community Services NSW [2006] Fam CA 1400, it was concluded that a return to Belgium would expose the child to psychological harm and place her in an intolerable situation, because the mother (who had wrongfully removed her to Australia) would likely suffer anxiety and significant symptoms of PTSD, which would seriously compromise the quality of parenting she could provide. 239. Family Law (Child Abduction Convention) Regulations reg 16(3)(c). 240. [1993] NZFLR 548. 241. [1993] Fam 242. 242. (1996) 187 CLR 640; 139 ALR 417. 243. See note 242 above, at 426 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. See also In the Marriage of Agee (2000) 27 Fam LR 140. 244. Family Law (Child Abduction Convention) Regulations reg 16(3)(c)(ii); see also Family Law Act 1975 (Cth) s 111B(1B). 245. In the Marriage of Agee (2000) 27 Fam LR 140. 246. De L and Director-General, NSW Department of Community Services (1996) 187 CLR 640; 139 ALR 417; In the Marriage of Agee (2000) 27 Fam LR 140; Re F (Hague Convention: Child’s Objections) (2006) 26 Fam LR 183; Commissioner of Police (WA) v Dormann (1997) FLC 92-766. 247. [1993] Fam 242. 248. Re F (Hague Convention: Child’s Objections) (2006) 26 Fam LR 183. 249. De L v Director General New South Wales Department of Community Services (1996) 187 CLR 640; 139 ALR 417 at 427 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. See also P v P (minors) (child abduction) [1992] 1 FLR 155. 250. Family Law (Child Abduction Convention) Regulations reg 16(3)(d). 251. (1993) 16 Fam LR 982 at 999-1000 per Nicholson CJ and Fogarty J. 252. (2000) 26 Fam LR 71. 253. See note 252 above, at 84 per Kay, Coleman and Barlow JJ. 254. See also Family Law (Child Abduction Convention) Regulations reg 16(5). 255. (1996) 187 CLR 640; 139 ALR 417 at 430–1 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). See also DP v Commonwealth Central Authority (2001) 206 CLR 401; 180 ALR 402 (Gaudron, Gummow and Hayne JJ); In the Marriage of Agee (2000) 27 Fam LR 140 at 159 (Finn, Holden and Guest JJ); Re M (children) (abduction: rights of custody) [2007] UKHL 55; [2008] 1 AC 1288 at [43]; Secretary for Justice (New Zealand Central Authority) v HJ [2007] 2 NZLR 289 (NZSC). 256. De L v Director General New South Wales Department of Community Services (1996) 187 CLR 640; 139 ALR 417 at 430–1 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. 257. Richards v Director-General, Department of Child Safety [2007] Fam CA 65 per Kay, Coleman and Boland JJ. 258. See note 257. 259. Cf. McDonald v Director-General, Department of Community Services NSW [2006] Fam CA 1400.

260. [1989] 2 All ER 465. 261. [1989] 2 FLR 475. 262. McDonald v Director-General, Department of Community Services NSW [2006] Fam CA 1400. 263. (1996) 187 CLR 640; 139 ALR 417 at 430–1 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. 264. (2001) 206 CLR 401 at [40]. 265. (1993) 17 Fam LR 377. 266. See note 265 above, at 377. 267. See note 265 above, at 385. 268. See Beaumont and McEleavy, (1999), pp 210–11. 269. See Art 5(b) of the convention. 270. Family Law (Child Abduction Convention) Regulations reg 24(1). 271. See note 270 above, reg 25A(1). 272. (1997) 21 Fam LR 643. 273. Director-General, Department of Family and Community Services v Radisson (2012) 46 Fam LR 567 at [24]–[28]. 274. Secretary for Justice v Sigg [1993] NZFLR 340. 275. Re T (minors) (international child abduction: access) [1993] 3 All ER 127. 276. Director-General, Department of Family, Youth and Community Services v Reissner (1999) 25 Fam LR 330; approved by the full court in Director-General, Department Of Family And Community Services v Radisson (2012) 46 Fam LR 567 at [38]–[41]; see also Re G (a minor) (enforcement of access abroad) [1993] Fam 216. 277. Re G (a minor) (enforcement of access abroad) [1993] Fam 216. 278. Director-General, Department of Family,Youth and Community Services v Reissner (1999) 25 Fam LR 330 at 346 per Lindenmayer J. 279. McCall v State Central Authority (1994) 18 Fam LR 307; Director-General, Department of Family, Youth and Community Services v Reissner (1999) 25 Fam LR 330; State Central Authority v Pedder [2008] Fam CA 519 per Bennett J at [22]–[24]. 280. Re Willoughby (an infant) (1885) 30 Ch D 324. 281. Wolff, Private International Law, 2nd ed, Clarendon Press, Oxford, 1950, p 411. 282. (1866) LR 2 Eq 363. 283. [1899] 1 Ch 712. 284. [1928] St R Qd 299.

[page 687]

Chapter 29

The Status of Children Introduction 29.1 This chapter is concerned with the legitimacy, legitimation and parentage of children. Historically, the status of legitimacy was of importance in the law of succession. However, recent developments have practically removed the significance of the distinction between legitimate and illegitimate children, and thus of the role of private international law, in this field.1 The distinction is now mainly relevant in relation to wills made before the legislation came into effect in the jurisdiction concerned, or to intestacy where the death occurred prior to the date of commencement. However, whereas formerly parentage was a relatively straightforward issue, the advent of assisted reproductive techniques, and of the recognition of same-sex relationships, has presented novel requirements for the consideration of parentage. 29.2 Conventionally, legitimacy was the status acquired by a child born in wedlock; that is to say, to parents married to each other at the time of birth, and [page 688] legitimation was a process by which children not born in wedlock acquired the status of legitimacy by some later act — either subsequent marriage of the parents, or formal recognition by the father. At common law, only legitimate children were entitled to assert rights of inheritance and support against relatives; a child born out of wedlock was nobody’s child, and legitimation — by subsequent marriage or otherwise — was not recognised. This stringent approach was not shared by other legal systems such as the civil law,2 which allowed a person to attain the status of legitimacy by the subsequent marriage of

the parents or by recognition by the father. Thus, the common law had to deal with these different approaches through its conflict of law rules, long before the common law countries themselves adopted the civil law institution of legitimation by subsequent marriage in the early part of the twentieth century.

Legitimacy Legitimacy at common law 29.3 The common law rule is that a child is legitimate if born or conceived during the lawful marriage of its parents, but otherwise is illegitimate.3

Extension to void marriages 29.4 The status of legitimacy is extended to the children of certain void marriages by s 91 of the Marriage Act 1961 (Cth) (the Marriage Act), which provides:4 (1) Subject to this section, a child of a marriage that is void shall be deemed for all purposes to be the legitimate child of his or her parents as from his or her birth or the commencement of this Act, whichever was the later, if, at the time of the intercourse that resulted in the birth of the child or the time when the ceremony of marriage took place, whichever was the later, either party to the marriage believed on reasonable grounds that the marriage was valid.

29.5 The Marriage Act commenced operation on 1 September 1963. The section applies only if either party was domiciled in Australia at the time of birth of the child, or, having died before that time, was domiciled in Australia immediately before death.5 Otherwise, it matters not whether the child was born before or after 1 September 1963, where the ceremony of marriage took place, or where the child was born.6 The belief must be that the marriage is valid under the law of the forum, [page 689] not some other system of law.7 Section 111(2) of the Marriage Act operates to make a child who is legitimate under s 91 legitimate throughout Australia and its territories. 29.6 While the term ‘marriage that is void’ at first sight appears to be a

contradiction in terms, it refers to the situation where the parties have gone through a ceremony of marriage that for some reason did not create a lawful marriage.8 Consequently, the section has no application to de facto cohabitation.

The common law conflicts rules 29.7 The fundamental rule at common law is that legitimacy, being a matter of status, is governed by the law of the domicile, as was stated by Windeyer J in AG for Victoria v Commonwealth:9 … if a person is legitimate by the law of his domicile English law will recognise that status however created, whether by legitimation brought about by subsequent marriage or by recognition, or by birth.

29.8 There is no room for doubt about the correctness of that proposition as regards legitimacy where both parents were domiciled in the same country at the time of birth and its law regards the child as legitimate. In Re Bischoffsheim10 Romer J had to determine whether a child born in New York qualified to take under the will of its great-grandfather as the legitimate child of its mother. The mother had married her deceased husband’s brother in New York, at a time when English law considered such marriages to be void. Since at the time of the marriage both were still domiciled in England their marriage was invalid in England. But by the time the child was born both parents had acquired a domicile in New York. By the law of that state their marriage was valid and the child legitimate. The question for Romer J was whether an English court could recognise the legitimacy of the child despite its non-recognition of the validity of the marriage of the child’s parents. Romer J held that it could, summarising the argument that he upheld as follows: … legitimacy is a question of status. That status is conferred or withheld, as the case may be, by the law of the domicile of origin, which is the law of the domicile of the parents at the time when the person whose legitimacy is in question was born. The status once conferred, remains with the person throughout his or her life and will be recognised and given effect to by our courts, save only in cases where that person claims to succeed to real estate in England.11

29.9 Although criticised by Dicey, Morris & Collins,12 Romer J’s reasoning has received the approval of the Privy Council in Bamgbose v Daniel,13 the High Court [page 690]

of Australia in A-G for Victoria v Commonwealth,14 the Supreme Court of Canada in Re Jones,15 and more recently has been adopted by the Supreme Court of Jamaica in K v D,16 and in those circumstances must be accepted as the law. The controversial decision of the House of Lords in Shaw v Gould,17 in which it was held that children of a marriage not recognised by English law could not be legitimate, has been rightly confined to the peculiar circumstances of that case, on the basis that it was concerned with the validity of the foreign divorce. 29.10 However, the position where the parents are domiciled in different countries at the time of birth is less clear. Since the prevailing view is that the domicile of origin is that of the father if the child is legitimate,18 and that of the mother if it is not,19 if the very issue is that of legitimacy, how does one determine the domicile of origin in order to decide that issue?20 Dicey, Morris & Collins postulate that a child not born in lawful wedlock is legitimate in England only if it is legitimate by the law of the domicile of each of the parents at the time of birth,21 and Cheshire, North and Fawcett now adopt a similar view.22 In Re Bischoffsheim, Romer J said that a child’s domicile of origin is the country in which the parents are domiciled at birth,23 but this probably assumed the ordinary case where both shared the same domicile, and was not intended to establish a rule where the parents had different domiciles. In any event, it is submitted that a ‘dual domicile’ rule would be excessively restrictive, requiring two legal systems to be satisfied. In these times, there is no good reason for preferring the application of the personal law of the father to that of the mother. As the default position if the child is not legitimate, or if the father is deceased24 is the mother’s domicile, it would be consistent to adopt the mother’s domicile for the purpose of determining the initial question of whether or not the child is legitimate.25 [page 691] 29.11 However, most cases support the domicile of the father.26 The rationale for this is said to be that legitimacy is primarily a matter of relationship with the father. Thus, in Hashmi v Hashmi,27 a man at all relevant times domiciled in Pakistan had married an English woman in England. They lived in England and three children were born of their marriage. It afterwards turned out that at the time of the English marriage he was already married according to Islamic law to a Pakistani woman. The English marriage was under English law void for

bigamy, and the ‘wife’ had not lost her English domicile. Nevertheless, Commissioner Stabb QC made a declaration that the children of this relationship were legitimate by reference to the law of Pakistan, the father’s domicile, upon evidence that that law regarded the English marriage as a valid second polygamous marriage and consequently treated the children as legitimate issue of that marriage. 29.12 A child who is legitimate according to the law of the domicile is legitimate for the purpose of applying the law governing the principal issue before the court. It should make no difference whether the main issue is one of succession, or a claim under the fatal accidents legislation, nor should it matter whether the law governing the main issue is that of an Australian state or that of a foreign country. Thus, in R and McDonell v Leong Ba Choi28 a child born out of wedlock but subsequently legitimated according to its father’s Chinese domicile, was recognised as legitimate for the purposes of immigration legislation. 29.13 It is now increasingly possible that a child may be born with a domicile of origin in a country such as New Zealand, or the various states of Australia, which no longer draw any distinction between legitimate and illegitimate children.29 Since the purpose of the Status of Children Acts was to abolish the disabilities of illegitimacy, the obvious solution is to treat all children born domiciled in such countries as legitimate.30

Removal of distinction of ex-nuptial children 29.14 All the Australian states and territories have now passed legislation that equates the position of children born out of wedlock with those born in wedlock. The legislation follows a similar pattern in each jurisdiction, except Western Australia. In New South Wales, the previous law and rules of construction remain relevant as regards dispositions made inter vivos before 1 July 1977, or wills and codicils which took effect upon the death of the testator before 1 July 1977.31 In [page 692] the other jurisdictions, the Act does not apply to any instruments executed before the commencement of the Act.32 In jurisdictions other than South Australia and

the Australian Capital Territory, the Act does not apply to the estates of persons dying intestate before the commencement of the Act.33 29.15 Central to the operation of the legislation is the section that makes provision to the effect that, for all purposes of the law of the enacting jurisdiction, the relationship of a child with its father and mother ‘shall be determined irrespective of whether the father and mother of the child are or have ever been married to each other and all other relationships of or to that child whether of consanguinity or affinity shall be determined accordingly’.34 Its effect is to make rules that were previously applicable only to children born in wedlock applicable also to ex-nuptial children,35 and to remove the distinction between legitimate and illegitimate children, so that the latter are no longer in a position of disadvantage. The common law rule of construction, whereby a reference to ‘child’, ‘issue’ or other words signifying relationships was held prima facie to refer to nuptial relationships, has been reversed: in the absence of an indication to the contrary, such words are to include ex-nuptial relationships.36 These reforms also have consequences for rules of jurisdiction and conflict of laws; whereas previously a mother of an ex-nuptial child could change the child’s residence unilaterally, she can no longer do so without the consent of the father, unless she has an order for the sole parental responsibility for the child.37 29.16 The legislation applies whenever a question concerning the rights of an ex-nuptial child has to be determined for the purposes of the law of the state or territory concerned, whether or not the child was born in that jurisdiction or the child or his or her parents are or have ever been domiciled there.38 This displaces the pre-existing common law conflict of laws rules. An ex-nuptial child domiciled in a country that still recognises the distinction between legitimate and illegitimate children must be recognised as the child of both parents for the purpose of an estate [page 693] that is governed by the law of the state or territory concerned. What is more, s 5(1) of the New South Wales Act uses the formula ‘by or under’ the law of the state. The use of the word ‘by’ could be interpreted as requiring that the rule of equality be applied whenever a court of New South Wales has jurisdiction, even though the law governing the principal question is that of a foreign jurisdiction.

Thus, an English child who is illegitimate under English law might have to be treated as having equal rights to movables situated in New South Wales that are part of the estate of a deceased Englishman, if the administration of the estate were to become an issue before the Supreme Court of New South Wales. 29.17 Since 1 April 1988, jurisdiction under the Family Law Act 1975 (Cth) (Family Law Act) extends to ex-nuptial children in the territories and the states of New South Wales, Victoria, South Australia, Tasmania and Queensland. The result is that the rights and obligations of the parents of such children in relation to each other and in relation to their children are the same as in the case of children born in wedlock.

Legitimation Legitimation under Australian law 29.18 The common law of England, Ireland and Wales did not recognise legitimation by subsequent marriage until the intervention of statute.39 In Australia, legitimation by subsequent marriage is now governed by the Marriage Act s 89, which provides: (1) A child (whether born before or after the commencement of this Act) whose parents were not married to each other at the time of his or her birth but have subsequently married each other (whether before or after the commencement of this Act) is, by virtue of the marriage, for all purposes the legitimate child of his or her parents as from his or her birth or the commencement of this Act, whichever was the later.

29.19 The legislation makes legitimation dependent upon the fact of subsequent marriage alone, without the need for any separate act of registration of the children so legitimated. The requirement that existed in some of the earlier state legislation, that the parents should have been free to marry each other at the time of birth, is abolished by s 89(2). The legitimation is retrospective to birth, except in the case of children born before the commencement of the Act on 1 September 1963; in the case of children born before that date, they are to be considered legitimate as from 1 September 1963. If it becomes necessary to determine the legitimacy of a child at a point of time before that date, the now superseded state legislation must be consulted.40 [page 694]

29.20 Section 89(3) defines the ambit of the provision. If the marriage took place before 26 April 1985, the section applies if the child’s father was domiciled in Australia at the time of the marriage. If the marriage took place after that date, the section applies if at the time of the marriage one of the child’s parents was domiciled in Australia. Regardless of the date of the marriage, the section applies where the marriage took place in Australia, or outside Australia under Pt V of the Marriage Act, or under the repealed Marriage (Overseas) Act 1955 (Cth). Section 111(2) of the Marriage Act provides for recognition of a legitimation effected under s 89 throughout Australia and its territories.

Legitimation under foreign law At common law 29.21 Although the Marriage Act s 90 makes provision in respect of foreign legitimations by subsequent marriage, it does not deal with other forms of legitimation that may exist under foreign law, such as recognition of the child by its father, decree of the head of state or legislation, and it also leaves to the common law the effect of a legitimation by subsequent marriage at a point of time before the commencement of the Marriage Act or its possible retrospective effect to the date of birth under some foreign laws. The statutory rules do not supplant the common law.41 To that extent, the common law rules retain relevance. 29.22 The common law rule, established in Re Grove42 and re-asserted by the majority of the English Court of Appeal (Greene MR and Luxmoore LJ, Scott LJ dissenting) in its controversial decision in Re Luck’s Settlement Trusts,43 is that the law of the domicile of the putative father at the date of birth of the child as well as at the date of the subsequent act of legitimation must permit legitimation. Thus, if the father was at the date of birth domiciled in a country which did not permit legitimation — such as England before 1926 — the child could never be legitimated, even if the father migrated before marriage to a country with more liberal laws. The justification for the rule — stated by Cotton LJ in Re Grove — is that the domicile at birth must give the child the capacity to be made legitimate, and the domicile at the time of the marriage which gives the status of legitimacy must be in a country which attributes that effect to marriage.44 This rule has been widely criticised.45 29.23 Australian courts have shown some impatience with it. In Thompson v Thompson,46 Sugerman J acknowledged the force of the criticism levelled

against it, but did not feel free to refuse to follow it. However, his Honour was able to mitigate the consequences by holding that the potentiality of legitimation always existed in English law, whether by special legislation or a general statute such as [page 695] the Legitimacy Act 1926 (United Kingdom).47 Subsequently, the New South Wales Full Court, in In the Estate of Taylor,48 acknowledged that there was much to be said for the view that where legitimation took place by operation of a statute in a foreign jurisdiction, the law of the domicile at the time when legitimation was effected would suffice, but left the question open. Furthermore, there is authority for the proposition that an Australian court will give effect to a foreign legitimation by the law of the father’s domicile at the date of the legitimating event, even if the legitimation was effected afterwards by retrospective reference to that event (such as occurred with the 1959 amendment to the Legitimacy Act 1926 (United Kingdom), when children were legitimated as from the commencement of that amendment, but by reference to marriages which had taken place before 1959). In that case, only the domicile of the father as at the date of the legitimating event should be relevant, and not his domicile as at the date of birth or as at the date of the enactment.49 It is to be hoped, therefore, that Australian courts will not follow the dubious reasoning of the majority in Re Luck’s Settlement Trusts, but prefer the simpler rule that the law of the putative father’s domicile at the date of the act of legitimation — whether effective under that law at that time or introduced later with retrospective effect — shall determine the matter.50 29.24 It has been suggested that recognition at common law operated with retrospective effect to the date of birth, whether the law of the domicile purported to have such retrospective effect or not.51 This is unwarranted; it seems contrary to principle that a foreign law should be given greater effect than it purports to have. But it would be correct to say that if the foreign law purported to confer legitimacy as from birth and that law was applicable according to our common law rules of recognition, then our courts would give retrospective effect to it.52

Under the Marriage Act

29.25 The Marriage Act makes provision, by s 90(1), for the recognition in Australia of legitimation effected under foreign law by subsequent marriage. The section, as amended in 1985, provides: (1) Where — (a) the parents of a child born illegitimate have married each other or the parents of a child born in a place the law of which did not recognise the status of illegitimacy have married each other; (b) the marriage took place outside Australia; (c) neither parent of the child was domiciled in Australia at the time of the marriage; and [page 696] (d) the law of the place where a parent of the child was then domiciled did not recognise the status of illegitimacy or, if the law of the place where a parent of the child was then domiciled did recognise that status, the child was, by that law, legitimated by virtue of the marriage, the child is for all purposes the legitimate child of his or her parents as from the time of the marriage or the commencement of section 25 of the Marriage Amendment Act 1985, whichever was the later.

29.26 Prior to its amendment in 1985, the section referred only to the domicile of the father at the date of marriage, and there was no reference to the law of places that did not recognise the status of illegitimacy. That earlier version of the provision is still relevant if the legitimacy of a child has to be determined as at a point of time prior to 26 April 1985.53 29.27 The reference to places the law of which does not recognise the status of illegitimacy is to countries — such as New Zealand,54 and now the states of Australia55 — where the relationship of a child and his or her father and mother is required by that country’s law in force to be determined irrespective of whether or not the father and mother are or have been married to each other.56 Thus, if a domiciled New Zealand mother marries in London the English father of her child, that child will be recognised in Australia as their legitimate issue as from the relevant date, either by virtue of English law which effects legitimation by subsequent marriage, or by virtue of New Zealand law which treats all children as equal. 29.28 Both before and after 1985, the sole relevant date at which the effect of the subsequent marriage on the status of the child is to be ascertained is the date of the marriage of the parents. It matters not when the child was born, or even whether the child was still living at the time of marriage.57

29.29 The requirement that the legitimation under the foreign law be effected ‘by virtue of the marriage’ was given a broad interpretation by Lush J in Heron v National Trustees Executors and Agency Co of Australasia Ltd.58 In that case the question was whether the claimant could take an interest in remainder as the legitimate child of his father, who had died in 1973. The will creating the interest was governed by Victorian law, but the claimant was born in 1935 in England where his father was then domiciled. The parents had married in 1938, but under English law, as it then stood, the claimant was not thereby legitimated. It was not until 1959 that the English law was amended to confer upon the claimant legitimacy, but then only as from the date of the amendment. Nevertheless, Lush J held that the legitimation was effected ‘by virtue of the marriage’, for it was the marriage of the parents which was the enabling event. The Marriage Act s 90 then took over to give the claimant the status of a legitimate child as from 1 September 1963 — well in time for the relevant year 1973, when he had to qualify. [page 697]

Jurisdiction to Make a Declaration of Legitimacy 29.30 The common law did not permit the making of a bare declaration of legitimacy. However, the Marriage Act now provides, by s 92(1): (1) A person may apply to the Family Court of Australia, the Federal Magistrates Court, a Family Court of a State or the Supreme Court of a State or Territory for an order declaring: (a) that the person is the legitimate child of his or her parents; or (b) that the person or his or her parent or child or a remoter ancestor or descendant is or was a legitimated person, and the Court may, in its discretion, make the order.

29.31 The section makes no provision as to standing or jurisdiction. Since the creation of status is not involved, in principle, any person who is a citizen of, or is resident or present in Australia ought to be able to apply under the section.59 However, the courts retain a discretion whether or not to make the order, and the proper exercise of that discretion would involve consideration whether the court was an appropriate forum to deal with the issue, having regard to the ordinary

residence of the applicant and of other members of the family who are most affected.

Parentage 29.32 Although the significance of the status of legitimacy is now much diminished, the status of the relationship of parent and child is of continuing relevance, and increasing complexity.

Proof of parenthood 29.33 Parenthood is established in the first place by a presumption that a child born during marriage or cohabitation or within a certain period thereafter is the child of the parents so married or cohabiting.60 Under the Parentage Act 2004 (ACT), a presumption of parenthood may also arise out of a civil or domestic partnership,61 which includes same-sex couples. The Act is otherwise silent on the gender of a person to whom a presumption about parentage applies, and as such a female partner of a woman who gives birth to a child would be presumed to be the parent of the child.62 Presumptions are rules of evidence and therefore apply as part of the law of the forum.63 [page 698] 29.34 Paternity may also be established by registration and, in some jurisdictions, by acknowledgement executed in a prescribed form within or outside the jurisdiction concerned,64 or by an order made by a competent court outside the jurisdiction. Orders made in any Australian state or territory or in New Zealand have, as long as they remain unrescinded, the same effect as an order made locally.65 29.35 Various provisions of the Family Law Act provide for rebuttable presumptions as to parentage. Being of an evidentiary character, they will apply whenever a court having jurisdiction under the Family Law Act has to determine that issue.66 As with the state and territorial legislation, the presumption can arise from marriage;67 cohabitation;68 entry of the father’s name in the registration of the birth of the child in Australia or a prescribed jurisdiction;69 the determination of an Australian court, a court of a reciprocating jurisdiction

within the meaning of Family Law Act s 110 or a jurisdiction mentioned in Schedule 4 or 4A to the Regulations,70 or a court of a prescribed overseas jurisdiction;71 and the acknowledgement of paternity in a document executed under the law of an Australian jurisdiction or a prescribed [page 699] overseas jurisdiction.72 Accordingly, s 69P, which was inserted in 1987 but applies to all children born before or after the amendment,73 provides that a child born to a woman during a marriage, including a purported marriage that is void,74 is presumed to be a child of the marriage,75 as are children born within 44 weeks of the termination of the marriage by death or annulment.76 In addition, s 69Q presumes a child born to a woman who cohabited with a man to whom she was not married at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks prior to the birth, to be a child of that man. These presumptions are rebuttable by proof on the balance of probabilities.77 29.36 It may be noted that s 69P does not provide for any such presumption in respect of a child born after the dissolution of the marriage. However, s 69P(3) presumes a child to be the child of the parties to a marriage who have separated if four cumulative conditions are satisfied: (a) the parties to a marriage separated at any time; and (b) after the separation, they resumed cohabitation on one occasion; and (c) they separated again within three months of the resumption of cohabitation, and lived separately and apart; and (d) a child is born to the woman within 44 weeks of the end of cohabitation but after the divorce of the parties. The purpose of this provision is clearly enough to cover the situation in which, pursuant to Family Law Act s 50, resumption of cohabitation for a single period not exceeding three months merely suspends the running of the 12-month period of separation required to prove irretrievable breakdown of marriage to found an application for dissolution, and may result in the conception of a child born after dissolution of the marriage. 29.37 The necessary implication from the peculiar specificity of s 69P(3) is that the common law rule has been displaced, and there is no longer a general presumption that a child conceived before the dissolution of the marriage, but born after decree absolute, is a child of the former husband. This accords with the provision of the Family Law Act s 48, that the sole ground for divorce is

irretrievable breakdown of marriage evidenced by separation for 12 months. To what children does the provision apply? The section is silent but it is submitted that as an evidentiary presumption it must be applied whenever the question arises whether a particular person is a child [page 700] of the marriage for the purposes of the Family Law Act.78 It does not displace the common law presumption in so far as it is still relevant under state or territorial law.

The parentage of children conceived by artificial insemination or in vitro fertilisation 29.38 Modern fertilisation procedures can raise complex and controversial issues of legitimacy, paternity and maternity. In this field, the role of private international law pertains to the recognition of the status of a child who is conceived, born, resident or domiciled outside the forum. 29.39 The simplest case is where a married woman conceives a child by artificial insemination or in vitro fertilisation using her husband’s sperm. In such circumstances, maternity and paternity can be established in the ordinary way, as this would be a child of both parents, born to the mother. So far as legitimacy is concerned, there may be room for some doubt in the case of void marriages.79 As has been observed, the Marriage Act s 91 declares the children of a void marriage to be legitimate if either party believed the marriage to be valid ‘at the time of the intercourse that resulted in the birth of the child or the time when the ceremony of marriage took place, whichever was the later’.80 Perhaps unfortunately, by using the term ‘intercourse’, rather than those of ‘insemination’ and ‘conception’ which are employed in the corresponding provision of the Legitimacy Act 1976 (United Kingdom),81 the legislature has left open the argument that while the child should be legitimate if either party believed the marriage to be valid at the time of the ceremony (even if neither party believed the marriage to be valid when the fertilisation procedure was performed, because the birth of the child would not result from a later act of ‘intercourse’), the child would not be legitimate if neither party believed the marriage to be valid at the time of the ceremony, even though one or both believed it to be valid when the

woman conceived by a later fertilisation procedure. However, allowing for the adaption of statutory language to the times, the courts might well give an expansive meaning to the word ‘intercourse’, to include ‘insemination’. 29.40 Many married and de facto women undergo fertilisation procedures using sperm from men other than their husbands or partners. Indeed, infertility of the husband is often the reason why the procedure is undertaken. In all states and territories, the husband or partner is presumed to be the father of the child if he consented to the procedure.82 The husband is rebuttably presumed to have [page 701] consented,83 but once consent is established the presumption of paternity is irrebuttable.84The donor of the sperm is irrebuttably presumed not to be the father.85 The presumptions operate in the same way if a woman in a de facto relationship undergoes a fertilisation procedure with the consent of her (male) partner.86 29.41 In vitro fertilisation allows a woman to bear a child conceived in another woman’s ovum. The sperm may come from the woman’s husband or partner, or from another man. In all Australian jurisdictions, the woman who bears the child is irrebuttably presumed to be the mother of the child,87 and the woman who donated the ovum is irrebuttably presumed not to be the mother.88The donor of the sperm (if he is not the husband) is irrebuttably presumed not to be the father.89 If the husband or partner consented to the procedure, he is presumed to be the father of the child [page 702] for all purposes, whether the sperm was his90 or came from another man.91 The husband is rebuttably presumed to have consented,92 but if consent is established the presumption of paternity is irrebuttable.93 These provisions allow the possibility that a man whose sperm was used to fertilise an ovum without his consent will not be treated as the father of the child born by his wife. All these presumptions operate in the same way if a woman in a de facto relationship undergoes a fertilisation procedure with the consent of her (male) partner.94

29.42 In all state jurisdictions, a female de facto same-sex partner of a woman who undergoes a fertilisation procedure, with the consent of the partner, will be presumed to be a parent of the child.95 The partner is rebuttably presumed to have consented,96 but if consent is established, parenthood is irrebuttable.97 As has been [page 703] noted above, under the Parentage Act 2004 (ACT) a presumption of parenthood may arise out of a civil or domestic partnership,98 which includes same-sex couples. The Act is otherwise silent on the gender of a person to whom a presumption about parentage applies, and as such a female civil or domestic partner of a woman who gave birth to a child would be presumed to be a parent of the child.99 The presumptions applicable in the context of fertilisation procedures apply in respect of domestic partners as in respect of married couples, and regardless of the sexuality of the partners.100 29.43 All of the state and territory provisions creating presumptions of paternity and maternity apply whether or not the fertilisation procedure occurred within the jurisdiction,101 and whether or not the child was born before the legislation commenced,102 but not so as to affect the vesting in possession or in interest of any property that occurred before its passing.103 Like the presumptions under the Family Law Act, they are of an evidentiary character, so they will apply whenever a court in the jurisdiction in question has to determine an issue of paternity or maternity.104 For example, if a married woman bears a child as a result of an in vitro fertilisation procedure using sperm from someone other than her husband, the husband will be presumed to be the father under the Australian legislation, even if the procedure was conducted in a country that would not recognise him as the father. 29.44 Under the Family Law Act s 60H(1), the mother and ‘other intended parent’ of a child born as a result of the carrying out of an artificial conception procedure are considered to be the parents105 and any donors of genetic material are not the parents106 for the purposes of the Act. As with the state legislation, consent of the other intended parent is rebuttably presumed107 and once demonstrated is conclusive as to the question of parentage.108 Furthermore, where a child is born as a result of an artificial conception procedure and parentage is recognised under

[page 704] state or territory law, then it is also to be recognised for the purposes of the Act.109 However, these presumptions apply only for the purposes of the Family Law Act, and if a federal court is faced with a question of the paternity or maternity of a child conceived by a fertilisation procedure in a context to which the Family Law Act is not applicable, it should apply the law of the state or territory in which it sits, under ss 79 or 80 of the Judiciary Act 1903 (Cth).110 29.45 In most Australian jurisdictions, provision is made for the intended parents of a child born as a result of a non-commercial (or altruistic) surrogacy arrangement to obtain a ‘parentage order’, which has the effect of transferring to them from the birth parent or parents the parentage of the child.111The applicants must be resident in the relevant jurisdiction.112 In respect of analogous legislation in England, it has been held that the law of the domicile of the applicants applies to all aspects of an application for a parentage order.113 Commercial surrogacy arrangements are prohibited,114 and in this respect several states provide that the necessary geographical nexus exists between the jurisdiction and an offence if the offence is committed by a person ordinarily resident (or, in the case of New South Wales, domiciled) in the state.115 _________________________ 1.

While children born out of wedlock and not legitimated by domestic or foreign law remained disadvantaged until relatively recently, now all state and territorial legislatures have passed legislation (in most jurisdictions called the Status of Children Act) that replaces the test of legitimacy as the qualification for rights of succession with the test of natural descent. The legislation is based on the Status of Children Act 1969 (NZ). In Australia, the relevant legislation is: Parentage Act 2004 (ACT), commenced 22 March 2004, replacing the Birth (Equality of Status) Act 1988, commenced 24 March 1989; Status of Children Act 1996 (NSW), commenced 1 September 1998, replacing the Children (Equality of Status) Act 1976 (NSW), which commenced 1 July 1977; Status of Children Act 1978 (NT), commenced 21 September 1979; Status of Children Act 1978 (Qld), commenced 1 January 1979; Family Relationships Act 1975 (SA), commenced 29 January 1976; Status of Children Act 1974 (Tas), commenced 1 March 1975; Status of Children Act 1974 (Vic), commenced 1 March 1975. In Western Australia the distinction between legitimate and illegitimate children was removed by amendment of each of the relevant statutes: Administration Act 1903 (WA) s 47A (intestacy); Inheritance (Family and Dependants Provision) Act 1972 (WA) s 4; Adoption Act 1994 (WA), commenced 1 January 1995, replacing the Adoption of Children Act 1896 (WA) (adoption); Pt IX of the Wills Act 1970 (WA); and Property Law Act 1969 (WA) s 31A (transactions inter vivos). The distinction between legitimate and illegitimate children also has little continuing relevance now under the Family Law Act 1975 (Cth), following the extension of the provisions of that Act to ex-nuptial children in the territories and the states of New South Wales, Victoria, South Australia and Tasmania as from 1 April 1988, and Queensland from 1 August 1990: Family Law Amendment Act 1987 (Cth).

2.

Nor in Scotland: Smijth v Smijth (1918) 1 SLR 156, where the doctrine of the putative marriage recognised as legitimate children of a void marriage, if according to the domicile of the innocent

spouse the child was legitimate. 3.

Blackstone, Commentaries on the Laws of England, vol 1, 1765, (Kerr ed, John Murray, 1862), pp 468–73.

4.

Cf Legitimacy Act 1976 (United Kingdom) s 3.

5.

Marriage Act s 91(2).

6.

Marriage Act s 91(3). There are reservations in respect of dispositions taking effect before the birth of the child, or 1 September 1963, whichever was the later; and also in respect of devolutions by law on a death occurring before the birth of the child or 1 September 1963, whichever was the later: Marriage Act s 91(4).

7.

A v H [2009] EWHC 636 (Fam); [2010] 1 FLR 1.

8.

In the Marriage of Lengyel and Rasad (No 2) (1990) 14 Fam LR 198. See also Marriage Act s 23.

9.

(1962) 107 CLR 529 at 596.

10. [1948] Ch 79. 11. See note 10, above at 82. 12. Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012, paras 20021–20-025 (pp 1211–13). See also the articles there cited (at n 79). 13. [1955] AC 107 at 120. 14. (1962) 107 CLR 529 at 553 per Kitto J, 568 per Taylor J, 596 per Windeyer J. See also Re Jones (1961) 25 DLR (2d) 595; Re Karnenas (1978) 3 RFL(2d) 213. 15. (1961) 25 DLR (2d) 595; (1961) 31 DLR (2d) 292. 16. [2003] 10 JJC 0701. 17. (1868) LR 3 HL 55. See Cheshire, North and Fawcett, Private International Law, 14th ed, Oxford University Press, Oxford, 2008, pp 1143–6. See also Motala v A-G [1990] 2 FLR 261 (reversed on another point: [1992] 1 AC 281); R v Secretary of State for the Home Department, ex p Brassey [1989] 2 FLR 486 at 494; Re Sit Woo-tung [1990] HKLR 410. 18. Forbes v Forbes (1854) Kay 341 at 353; Udny v Udny (1869) LR 1 Sc & Div 441 at 457; Yuen Tse v Minister of Employment and Immigration (1983) 32 RFL(2d) 274. 19. Udny v Udny (1869) LR 1 Sc & Div 441 at 457; Urquhart v Butterfield (1887) 37 Ch D 357; Carmona v White (1980) 25 SASR 525; Re Bischoffsheim [1948] Ch 79 at 92. 20. Dicey, Morris & Collins (2012), para 20-016 (p 1209); J Westlake, Private International Law, 7th ed, Sweet & Maxwell, London, 1925, pp 101, 231, 250. 21. Dicey, Morris & Collins (2012) (note 12 above), Rule 113, para 20R-009 (p 1207). 22. Cheshire, North and Fawcett (2008) (note 17 above), p 1150; replacing support in previous editions for the father’s domicile, a view also supported by R H Graveson, Conflict of Laws, 7th ed, Sweet & Maxwell, London, 1974, p 363. 23. Re Bischoffsheim [1948] Ch 79 at 92. 24. Dicey, Morris & Collins (2012) (n 12 above), paras 6R-025, 6-028 (pp 140–1);Westlake (note 20 above), (1925), s 250; Cheshire, North and Fawcett (2008) (note 17 above), p 1150. 25. As was done in Smijth v Smijth (1918) 1 SLR 156. 26. Re Grove (1888) 40 Ch D 216; Re Don’s Estate (1857) 4 Drew 194 at 198; Re Andros (1883) 24 Ch D 637 at 642; Perpetual Executors and Trustee Association of Australia Ltd v Roberts [1970] VR 732 at 756; Hashmi v Hashmi [1972] Fam 36; Yuen Tse v Minister of Employment and Immigration (1983) 32

RFL(2d) 274. 27. [1972] Fam 36. 28. [1954] 1 DLR 401. 29. See 29.14–29.16. 30. See Cheshire, North and Fawcett (note 17 above) (2008), p 1151; Dicey, Morris & Collins (note 12 above) (2012), para 20-026 (p 1214). See also Montan v Sanchez; Re MacDonald (1962) 34 DLR (2d) 14; affirmed 44 DLR (2d) 208; Khoo Hooi Leong v Khoo Hean Kwee [1926] AC 529 at 543; Re Sit Woo-tung [1990] 2 HKLR 410. 31. Status of Children Act 1996 (NSW) s 7(1). In Hogan v Hogan (No 2) [1981] 2 NSWLR 768, Street CJ at 774, Glass J at 777, and Mahoney J at 777, held that the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) did not allow an ex-nuptial child to apply for an order under that Act if the testator died prior to 1 July 1977, even if probate of the testator’s will was not granted until after that date. 32. Parentage Act 2004 (ACT) s 39(5); Status of Children Act 1978 (NT) s 6(1); Status of Children Act 1978 (Qld) s 33(1); Family Relationships Act 1975 (SA) s 6(3); Status of Children Act 1974 (Tas) s 4(1); Status of Children Act 1974 (Vic) s 4(1). 33. Status of Children Act 1996 (NSW) s 8; Status of Children Act 1978 (NT) s 6(3); Status of Children Act 1978 (Qld) s 34; Status of Children Act 1974 (Tas) s 4(3); Status of Children Act 1974 (Vic) s 4(3). 34. Parentage Act 2004 (ACT) s 38; Status of Children Act 1996 (NSW) s 5(1); Status of Children Act 1978 (NT) s 4(1); Status of Children Act 1978 (Qld) s 6(1); Family Relationships Act 1975 (SA) s 6(1); Status of Children Act 1974 (Tas) s 3(1); Status of Children Act 1974 (Vic) s 3(1). 35. Douglas v Longano (1981) 147 CLR 212. 36. Parentage Act 2004 (ACT) s 39; Status of Children Act 1996 (NSW) s 6; Status of Children Act 1978 (NT) s 4(2); Status of Children Act 1978 (Qld) s 6(2); Family Relationships Act 1975 (SA) s 6(2); Status of Children Act 1974 (Tas) s 3(2); Status of Children Act 1974 (Vic) s 3(2). 37. McManus v Clouter (No 1) (1980) 5 Fam LR 650 at 658 per Powell J. 38. Status of Children Act 1996 (NSW) s 4(1); Status of Children Act 1978 (NT) s 2A; Status of Children Act 1978 (Qld) s 2; Family Relationships Act 1975 (SA) s 6(4); Status of Children Act 1974 (Tas) s 3(4); Status of Children Act 1974 (Vic) s 3(4). The Parentage Act 2004 (ACT) does not contain a similar provision. 39. Initially, the Legitimacy Act 1926 (United Kingdom). Legitimation by subsequent marriage did form part of the law in Scotland, the Isle of Man and the Channel Islands. 40. Marriage Act s 89(4). 41. Re Hurll dec’d;Angelini v Dick [1952] Ch 722; 2 All ER 322. 42. (1888) 40 Ch D 216. 43. [1940] Ch 864. 44. Re Grove (1888) 40 Ch D 216 at 233. 45. Cheshire, North and Fawcett (2008) (note 17 above), p 1154; Dicey, Morris & Collins (2012) (note 12 above) (2012), paras 20-051–20-061 (pp 1225–9); Graveson (note 22 above) (1974), p 375. 46. (1950) 51 SR (NSW) 102 at 105. 47. See note 46 above, at 106. 48. [1964–5] NSWR 695 at 699.

Re Hagerbaum [1933] IR 198, cited with approval by Lush J in Heron v National Trustees Executors 49. and Agency Co of Australasia Ltd [1976] VR 733, 28 FLR 500 at 506. 50. Cf. Cheshire, North and Fawcett (note 17 above) (2008), p 1154. 51. Re Luck’s Settlement Trusts [1940] Ch 864 at 898–9 per Scott LJ. 52. This is the view expressed in Dicey, Morris & Collins (2012) (note 12 above), para 20-060, n226 (pp 1228–9). See also M Wolff, Private International Law, 2nd ed, Clarendon Press, Oxford, 1950, p 396; J H C Morris, ‘The Time Factor in the Conflict of Laws’ (1966) 15 ICLQ 422 at 432. 53. Marriage Amendment Act 1985 (Cth) s 25(2). 54. Status of Children Act 1969 (NZ). 55. See 29.14–29.16 above. 56. Marriage Act s 90(2). 57. Marriage Act s 90(3). 58. [1976] VR 733. 59. Collins v A-G (1931) 47 TLR 484. 60. Parentage Act 2004 (ACT) ss 7, 8; Status of Children Act 1996 (NSW) ss 9, 10; Status of Children Act 1978 (NT) ss 4A, 5; Status of Children Act 1978 (Qld) s 24 (marriage) s 28 (cohabitation); Family Relationships Act 1975 (SA) s 8 (marriage only); Status of Children Act 1974 (Tas) s 5 (marriage) s 8 (cohabitation); Status of Children Act 1974 (Vic) s 5 (marriage only). 61. Parentage Act 2004 (ACT) ss 7, 8. 62. Parentage Act 2004 (ACT) ss 7, 8. 63. Harris v Harris [1979] 2 NSWLR 252 at 255. 64. Parentage Act 2004 (ACT) s 9 (registration only); Status of Children Act 1996 (NSW) s 11 (registration only), s 13 (acknowledgement); Status of Children Act 1978 (NT) s 9 (registration); Status of Children Act 1978 (Qld) s 27 (acknowledgement); Family Relationships Act 1975 (SA) s 7(b); Status of Children Act 1974 (Tas) s 8C; Status of Children Act 1974 (Vic) s 8(2). 65. Parentage Act 2004 (ACT) s 10 (Australian courts only); Status of Children Act 1996 (NSW) s 12 (prescribed court); Status of Children Act 1978 (NT) s 9B (prescribed court); Status of Children Act 1978 (Qld) s 26 (prescribed court); Family Relationships Act 1975 (SA) s 7(c); Status of Children Act 1974 (Tas) s 8B (prescribed court); Status of Children Act 1974 (Vic) s 8(5), (6) (Australian or New Zealand court). 66. Harris v Harris [1979] 2 NSWLR 252 at 255 (McLelland J); but see John Pfeiffer Pty Ltd v Rogerson (2000) 172 ALR 625 at 651, at [99] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 67. Family Law Act 1975 (Cth) s 69P. 68. Family Law Act 1975 (Cth) s 69Q. 69. Family Law Act 1975 (Cth) s 69R. No jurisdictions have yet been prescribed for the purposes of s 69R, save that for the purpose of proceedings for the purposes of an international agreement or arrangement with a reciprocating jurisdiction or a Sch 4 jurisdiction, each reciprocating jurisdiction and Sch 4 jurisdiction is a prescribed overseas jurisdiction: Family Law Regulations, reg 39B(1), (2).Accordingly, where a child was born as a result of an artificial conception procedure and a surrogacy (whereby an egg harvested from an anonymous donor was inseminated with the applicant’s sperm and the embryo was carried by a surrogate in California where surrogacy was legal), and the child’s Californian birth certificate named the biological father and the surrogate mother as the parents, it gave rise to no specific presumption of parentage: Re Mark [2003] Fam CA 822; Ellison v Karnchanit (2012) 48 Fam LR 33, at [70].

70. The reciprocating jurisdictions are Austria, Belarus, Belgium, Brunei, all Canadian Provinces except Quebec, Colombia, Cook Islands, Cyprus, Czech Republic, Denmark, Estonia, Fiji, France, Germany, Gibraltar, Kazakhstan, Hong Kong, India, Republic of Ireland, Italy, Kenya, Luxembourg, Malawi, Malaysia, Malta, Nauru, Niue, Netherlands, New Zealand, Norway, Papua New Guinea, Poland, Portugal, Sierra Leone, Singapore, Slovak Republic, South Africa, Spain, Sweden, Switzerland, Sri Lanka, Tanzania (excluding Zanzibar), Trinidad and Tobago, Turkey, United Kingdom, the United States, Western Samoa, Zambia, and Zimbabwe, and the territories of Christmas Island and Cocos (Keeling) Islands: Family Law Regulations, reg 25 and Sch 2. The countries mentioned in Sch 4 are the convention countries for the purposes of the Hague Convention on the Recovery Abroad of Maintenance. 71. Family Law Act 1975 (Cth) s 69S. No jurisdictions have yet been prescribed for the purposes of s 69S, save that for the purpose of proceedings for the purposes of an international agreement or arrangement with a reciprocating jurisdiction or a Sch 4 jurisdiction, each reciprocating jurisdiction and Sch 4 jurisdiction is a prescribed overseas jurisdiction: Family Law Regulations, reg 39B(1), (2); Ellison v Karnchanit (2012) 48 Fam LR 33, at [71]. 72. Family Law Act 1975 (Cth) s 69T. No jurisdictions have yet been prescribed for the purposes of s 69T, save that for the purpose of proceedings for the purposes of an international agreement or arrangement with a reciprocating jurisdiction or a Sch 4 jurisdiction, each reciprocating jurisdiction and Sch 4 jurisdiction is a prescribed overseas jurisdiction: Family Law Regulations, reg 39B(1), (2); Ellison v Karnchanit (2012) 48 Fam LR 33, at [72]. 73. Family Law Amendment Act 1987 (Cth) s 66. Between 1987 and 1995 the provision appeared in Family Law Act 1975 (Cth) as s 66P. It was renumbered in 1995, as part of reforms made by the Family Law Reform Act 1995 (Cth) s 31. 74. Family Law Act 1975 (Cth) s 60E. 75. Family Law Act 1975 (Cth) s 69P(1). 76. Family Law Act 1975 (Cth) s 69P(2). 77. Family Law Act 1975 (Cth) s 69U(1). Although s 69U(3) would otherwise have the effect that the presumption in s 69S(1) (determination by a court) is irrebuttable, by providing that s 69U(1) does not apply to it, reg 39B(4) of the Family Law Regulations provides that the s 69S(1) presumption is taken, for the Regulations, to be rebuttable. 78. Harris v Harris [1979] 2 NSWLR 252 at 255 per McLelland J; followed in Robinson v Field (1981) 7 Fam LR 866 at 871 per Holland J; distinguished in E v H (1986) 7 NSWLR 212 per Hodgson J. 79. This will now be of little significance in Australian law, but it may be significant in countries that still distinguish between legitimate and illegitimate children. 80. See above 29.4. 81. Legitimacy Act 1976 (United Kingdom) s 1(1). 82. Parentage Act 2004 (ACT) s 11(4); Status of Children Act 1996 (NSW) s 14(1)(a); Status of Children Act 1978 (NT) s 5D(1)(a); Status of Children Act 1978 (Qld) ss 17(2)(a) (artificial insemination), 18(2) (a) (in vitro fertilisation); Family Relationships Act 1975 (SA) s 10C(3); Status of Children Act 1974 (Tas) s 10C(1); Status of Children Act 1974 (Vic) ss 10C(2)(a) (artificial insemination), 10D(2)(a) (in vitro fertilisation); Artificial Conception Act 1985 (WA) s 6(1). 83. Parentage Act 2004 (ACT) s 11(6); Status of Children Act 1996 (NSW) ss 14(5), 15; Status of Children Act 1978 (NT) s 5D(3); Status of Children Act 1978 (Qld) ss 17(4) (artificial insemination), 18(4) (in vitro fertilisation); Family Relationships Act 1975 (SA) s 10C(6); Status of Children Act 1974 (Tas) s 10C(5); Status of Children Act 1974 (Vic) ss 10C(4) (artificial insemination), 10D(4) (in vitro fertilisation); Artificial Conception Act 1985 (WA) s 6(2).

84. Parentage Act 2004 (ACT) s 11(4) (‘conclusively presumed’); Status of Children Act 1996 (NSW) s 14(4); Status of Children Act 1978 (NT) s 5D(2); Status of Children Act 1978 (Qld) ss 17(3) (artificial insemination), 18(3) (in vitro fertilisation); Family Relationships Act 1975 (SA) s 10C(3) (‘conclusively presumed’); Status of Children Act 1974 (Vic) ss 10C(3)(a) (artificial insemination), 10D(3)(a) (in vitro fertilisation). The Tasmanian provision is not cast in terms of a presumption, but provides that the husband ‘shall be treated as if he were the father’: Status of Children Act 1974 (Tas) s 10C(1); Artificial Conception Act 1985 (WA) s 6(1). 85. Parentage Act 2004 (ACT) s 11(5); Status of Children Act 1996 (NSW) s 14(2); Status of Children Act 1978 (NT) s 5D(1)(b); Status of Children Act 1978 (Qld) ss 17(2)(b) (artificial insemination), 18(2)(b) (in vitro fertilisation); Family Relationships Act 1975 (SA) s 10C(4); Status of Children Act 1974 (Tas) s 10C(2); Status of Children Act 1974 (Vic) ss 10C(2)(b) (artificial insemination), 10D(2)(b) (in vitro fertilisation); Artificial Conception Act 1985 (WA) s 7(2). 86. Parentage Act 2004 (ACT) s 11; Status of Children Act 1996 (NSW) s 14(6); Status of Children Act 1978 (NT) s 5A(2)(a); Status of Children Act 1978 (Qld) s 15(1); Family Relationships Act 1975 (SA) s 10A(2) and (3); Status of Children Act 1974 (Tas) s 10C(1); Status of Children Act 1974 (Vic) s 10A(1); Artificial Conception Act 1985 (WA) s 3(1). 87. Parentage Act 2004 (ACT) s 11(2); Status of Children Act 1996 (NSW) s 14(1)(b); Status of Children Act 1978 (NT) s 5C; Status of Children Act 1978 (Qld) s 19(2)(c); see also s 23(2)(a) (married woman without husband’s consent or unmarried woman) and s 19E(2)(a) (woman with female de facto partner’s consent); Family Relationships Act 1975 (SA) s 10C(1); Status of Children Act 1974 (Tas) s 10C(3); Status of Children Act 1974 (Vic) s 10E(2)(a); s 16(1)(a) extends this to a woman without a partner; Artificial Conception Act 1985 (WA) s 5 provides ‘for the purposes of the law of the State, the pregnant woman is the mother of [the] child’. 88. Parentage Act 2004 (ACT) s 11(3); Status of Children Act 1996 (NSW) s 14(3); Status of Children Act 1978 (NT) s 5E(b); Status of Children Act 1978 (Qld) s 19(2)(b); see also s 23(2)(b) (married woman without husband’s consent or unmarried woman) and s 19E(2)(b) (woman with female de facto partner’s consent); Family Relationships Act 1975 (SA) s 10C(2); Status of Children Act 1974 (Tas) s 10C(4); Status of Children Act 1974 (Vic) s 10E(2)(b); s 16(1)(c) extends this to a woman without a partner and s 14(1)(d) extends this to a woman in a same-sex relationship; Artificial Conception Act 1985 (WA) s 7(1). 89. Parentage Act 2004 (ACT) s 11(5); Status of Children Act 1996 (NSW) s 14(2); Status of Children Act 1978 (NT) s 5D(1)(b); Status of Children Act 1978 (Qld) s 19(2)(d)(ii); see also s 23(4) (married woman without husband’s consent or unmarried woman) and s 19D(2) (woman with female de facto partner’s consent); Family Relationships Act 1975 (SA) s 10C(4); Status of Children Act 1974 (Tas) s 10C(2); Status of Children Act 1974 (Vic) s 10E(2)(f)(iv); s 16(1)(b) extends this to a woman without a partner; Artificial Conception Act 1985 (WA) s 7(1). 90. Parentage Act 2004 (ACT) s 11(4); Status of Children Act 1996 (NSW) s 14(1)(a); Status of Children Act 1978 (NT) s 5D(1)(a); Status of Children Act 1978 (Qld) s 19(2)(c); Family Relationships Act 1975 (SA) s 10C(3)(b)(i); Status of Children Act 1974 (Tas) s 10C(1); Status of Children Act 1974 (Vic) s 10E(2)(e); Artificial Conception Act 1985 (WA) s 6(1). 91. Parentage Act 2004 (ACT) s 11(4); Status of Children Act 1996 (NSW) s 14(1)(a); Status of Children Act 1978 (NT) s 5D(1)(b); Status of Children Act 1978 (Qld) s 19(2)(d)(i); Family Relationships Act 1975 (SA) ss 10C(3)(b)(i) and 10C(4); Status of Children Act 1974 (Tas) s 10C(1) and (2); Status of Children Act 1974 (Vic) s 10E(2)(f); Artificial Conception Act 1985 (WA) s 6(1). 92. Parentage Act 2004 (ACT) s 11(6); Status of Children Act 1996 (NSW) s 15; Status of Children Act 1978 (NT) s 5D(3); Status of Children Act 1978 (Qld) s 17(4); Family Relationships Act 1975 (SA) s 10C(6); Status of Children Act 1974 (Tas) s 10C(5); Status of Children Act 1974 (Vic) s 10E(4); Artificial Conception Act 1985 (WA) s 6(2).

Parentage Act 2004 (ACT) s 11(4); Status of Children Act 1996 (NSW) s 14(4); Status of Children Act 93. 1978 (NT) s 5D(2); Status of Children Act 1978 (Qld) s 17(3); Family Relationships Act 1975 (SA) s 10C(3)(b)(i); Status of Children Act 1974 (Vic) s 10E(3)(a); Artificial Conception Act 1985 (WA) s 6(1). The Tasmanian provision is not cast in terms of a presumption or as being ‘irrebuttable’, but in providing that the husband ‘shall be treated as if he were the father’ is apparently irrebuttable: Status of Children Act 1974 (Tas) s 10C(1). 94. Parentage Act 2004 (ACT) s 11; Status of Children Act 1996 (NSW) s 14(6); Status of Children Act 1978 (NT) s 5A(2); Status of Children Act 1978 (Qld) s 15(1); Family Relationships Act 1975 (SA) s 10C(6); Status of Children Act 1974 (Tas) s 10C (‘significant relationship’ within the meaning of the Relationships Act 2003 (Tas)); Status of Children Act 1974 (Vic) s 10A(1); Artificial Conception Act 1985 (WA) s 3(2). 95. Parentage Act 2004 (ACT) s 11(4); Status of Children Act 1996 (NSW) s 14(1A)(a); Status of Children Act 1978 (NT) s 5DA(1)(a); Status of Children Act 1978 (Qld), ss 19B and 19C(3); Family Relationships Act 1975 (SA) s 10C(3)(b)(ii) (‘Qualifying relationship’ includes same-sex relationships: s 10A(1)); Status of Children Act 1974 (Tas) s 10C(1A) (the definition of ‘significant relationship’ in Relationships Act 2003 (Tas) s 4 includes same-sex couples); Status of Children Act 1974 (Vic) ss 13(1)(b) (sperm donor) and 14(1)(b) (ovum donor); Artificial Conception Act 1985 (WA) s 6A(1). 96. Parentage Act 2004 (ACT) s 11(6); Status of Children Act 1996 (NSW) s 14(5A); Status of Children Act 1978 (NT) s 5DA(3); Status of Children Act 1978 (Qld), s 19G; Family Relationships Act 1975 (SA) s 10C(6); Status of Children Act 1974 (Vic) ss 13(3) (sperm donor) and 14(3) (ovum donor); Artificial Conception Act 1985 (WA) s 6A(2). However, Status of Children Act 1974 (Tas) s 10C(5) does not extend the presumption of consent of the other party in a significant relationship to same-sex relationships to which the presumption of parentage applies under s 10C(1A). 97. Parentage Act 2004 (ACT) s 11(4); Status of Children Act 1996 (NSW) s 14(4); Status of Children Act 1978 (NT) s 5DA(2); Status of Children Act 1978 (Qld), s 19F; Family Relationships Act 1975 (SA) s 10C(b)(ii); Status of Children Act 1974 (Vic) ss 13(2) (sperm donor) and 14(2) (ovum donor); Artificial Conception Act 1985 (WA) s 6A(1). As with s 10C(1), s 10C(1A) of Status of Children Act 1974 (Tas) retains the formulation that the woman consenting ‘shall be treated as if she were the parent’ of the child: see above, note 93. 98. Parentage Act 2004 (ACT) ss 7, 8; see 29.33 above. 99. Parentage Act 2004 (ACT) ss 7, 8. 100. Parentage Act 2004 (ACT) s 11. 101. Parentage Act 2004 (ACT) s 11(7); Status of Children Act 1996 (NSW) s 4(a); Status of Children Act 1978 (NT) s 5B(1); Status of Children Act 1978 (Qld) s 14(1); Family Relationships Act 1975 (SA) s 10B(1); Status of Children Act 1974 (Tas) s 10A(1); Status of Children Act 1974 (Vic) s 10B(1). There is no equivalent provision in New South Wales. 102. Parentage Act 2004 (ACT) s 11(7); Status of Children Act 1996 (NSW) s 4(b); Status of Children Act 1978 (NT) s 5B(1); Status of Children Act 1978 (Qld) s 14(1); Family Relationships Act 1975 (SA) s 10B(1); Status of Children Act 1974 (Tas) s 10A(1); Status of Children Act 1974 (Vic) s 10B(1). 103. Parentage Act 2004 (ACT) s 11(8); Status of Children Act 1978 (NT) s 5B(2); Status of Children Act 1978 (Qld) s 14(2); Family Relationships Act 1975 (SA) s 10B(3); Status of Children Act 1974 (Tas) s 10A(2); Status of Children Act 1974 (Vic) s 10B(2). There is no equivalent provision in New South Wales. 104. Harris v Harris [1979] 2 NSWLR 252 at 255 per McLelland J; but see John Pfeiffer Pty Ltd v Rogerson (2000) 172 ALR 625 at 651, at [99] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 105. Family Law Act 1975 (Cth) s 60H(1)(c).

106. Family Law Act 1975 (Cth) s 60H(1)(d). 107. Family Law Act 1975 (Cth) s 60H(5). 108. Family Law Act 1975 (Cth) s 60H(1)(c). 109. Family Law Act 1975 (Cth) s 60H(2) and (3). 110. See Chapter 5 above. 111. Parentage Act 2004 (ACT) s 25; Surrogacy Act 2010 (NSW) s 12; Surrogacy Act 2010 (Qld) ss 12, 21; Family Relationships Act 1975 (SA) s 10HB; Surrogacy Act 2012 (Tas) ss 13, 16; Status of Children Act 1974 (Vic) ss 20, 22; Surrogacy Act 2008 (WA) s 21. 112. Parentage Act 2004 (ACT) s 24(e) (and in addition the child must have been conceived as a result of procedure carried out in ACT: s 24(a)); Surrogacy Act 2010 (NSW) s 32; Surrogacy Act 2010 (Qld) s 22(2)(g); Family Relationships Act 1975 (SA) s 10HB(2) (and in addition the child must have been conceived as a result of procedure carried out in SA); Surrogacy Act 2012 (Tas) s 16 (and each party to the surrogacy arrangement must have been resident in Tas); Status of Children Act 1974 (Vic) s 20 (and in addition the child must have been conceived as a result of procedure carried out in Vic); Surrogacy Act 2008 (WA) s 19. 113. Re X and another (Children) (Parental Order: Foreign Surrogacy) [2008] EWHC 3030 (Fam); [2009] Fam 71. 114. Parentage Act 2004 (ACT) s 42; Surrogacy Act 2010 (NSW) s 8; Surrogacy Act 2010 (Qld) s 56; Family Relationships Act 1975 (SA) ss 10G, 10H; Surrogacy Act 2012 (Tas) s 40; Surrogacy Act 2008 (WA) s 8. 115. Parentage Act 2004 (ACT) s 45 (residence only); Surrogacy Act 2010 (NSW) s 11; Surrogacy Act 2010 (Qld) s 54 (residence only).

[page 705]

Chapter 30

Adoption Introduction 30.1 Adoption, being unknown at common law, is regulated by statute at state and territorial level.1 Originally, as the result of the work of the Standing Committee of Attorneys-General of the Commonwealth and the States in 1963 and 1964, the Adoption Acts were reasonably uniform. However, since then individual variations have emerged between the jurisdictions.

Jurisdiction 30.2 In all jurisdictions except Western Australia, the adoption legislation provides that an adoption order cannot be made unless at the time of filing the application the applicant — or, in the case of a joint application, each of the applicants — was resident or domiciled in the state or territory where the application is made, and that the child is present there.2 In Western Australia, in addition to the requirement that prospective adoptive parents be resident or domiciled in the state, an adoption order must not be made in relation to a person unless at the time the application was filed the person is entitled to live permanently in Australia, or the person was born in Western Australia and is present there at the time the application is made.3 In Queensland, there is an additional requirement that each applicant be an Australian citizen.4 In Victoria and Tasmania, jurisdiction may also be invoked if the child was born in the state and, at the time of filing the application, was under [page 706]

the guardianship of the Director-General of Community Services or an approved agency.5 The common law rules relating to jurisdiction are expressly excluded.6 30.3 The concept of residence as a connecting factor has been addressed elsewhere.7 In the context of the law relating to adoption, ‘residence’ connotes some degree of permanence within the jurisdiction, though not necessarily a home of one’s own,8 involving a settled place of abode within the jurisdiction as distinct from a presence for merely temporary purposes.9 Thus, it involves not only presence in the jurisdiction but also an intention to treat it as a home, albeit not necessarily permanently so.10 In all jurisdictions except Queensland and the Australian Capital Territory, legislation authorises presumptions in relation to the residence and domicile of applicants. If a court is satisfied that the child was present in the state, or that the applicant (or applicants) was resident or domiciled in the state, for a stipulated minimum period (which varies between 21 days and three months, depending on the jurisdiction) immediately prior to an application being filed, the court may, in the absence of evidence to the contrary, presume that the child was present in the jurisdiction and that the applicant (or applicants) was resident or domiciled in the jurisdiction.11 30.4 The fact that the applicants are foreign nationals who wish to take the child out of Australia does not affect the jurisdiction of the court, although it may be a ground for refusing to make an adoption order in their favour.12 30.5 Various restrictions apply to the adoption of a foreign child who is present within the jurisdiction at the relevant time. Pursuant to the Immigration (Guardianship of Children) Act 1946 (Cth) s 6(1), a non-citizen child brought to Australia (other than in the charge of, or for the purposes of living in Australia under the care of, a parent or adult relative)13 becomes the ward of the responsible Commonwealth Minister.14 Provision is made that this does not apply to a child brought to Australia in the charge of, or for the purposes of living in Australia under the care of, a person who intends to adopt the child under the laws of a state or territory that has been the subject of a declaration by the Commonwealth Minister under s 4AAB;15 or a child in respect of whom an adoption visa is in force who enters Australia in the charge of, or for the purposes of living in Australia under the care of, a person who is not less than 21 years of age who intends to reside with the child in a state or territory that has been so declared.16 However, no declaration under [page 707]

s 4AAB has ever been made.17 Under s 5, the Commonwealth Minister can delegate the functions of guardianship to state Directors-General, and in New South Wales, Queensland, Victoria, Tasmania, the Australian Capital Territory and the Northern Territory provision is made, pursuant to that delegation, for the appointment of a guardian of a non-citizen child brought into the jurisdiction for the purpose of adoption there.18 30.6 Australia ratified the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption 1993 (the Hague Convention on Intercountry Adoption) with effect from 1 December 1998. Countries that are party to the Hague Convention are listed in Sch 2 to the Hague Convention on Intercountry Adoption Regulations, as amended from time to time.19 Countries for which the Convention has entered into force but which are not listed in Sch 2 are regarded as Convention countries unless Australia has raised an objection to their accession under Art 44 of the convention.20 The Convention establishes a co-operative procedure for inter-country adoptions between countries party to it. Each party must establish a central authority or, in the case of federal states such as Australia, a central authority for each of the units making up the federation.21 Persons habitually resident in a Convention country, who wish to adopt a child habitually resident in another contracting country, must apply to the central authority in the country (or federal unit) of their habitual residence.22 If that central authority considers the applicants to be eligible and suitable, it transmits a report to the central authority of the child’s state of origin,23 which then considers whether the child is adoptable and transmits a report back to the other country’s central authority.24 The adoption proceeds if (but only if) the central authorities of both countries agree that it may do so.25 The Convention has been implemented by the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) (Hague Convention on Intercountry Adoption Regulations) made pursuant to the Family Law Act 1975 (Cth), s 111C. Regulation 15 makes provision for [page 708] applications for the adoption in Australia of a child from a convention country, if arrangements for the adoption have been made in accordance with the convention, the laws of the Commonwealth and the state of habitual residence of the proposed adopters, and the laws of the convention country concerned. The Court may make an adoption order only if satisfied that both relevant central

authorities have agreed to the adoption, and that the child is allowed to reside permanently in Australia. An adoption application made in Australia in respect of a child who until placed with proposed adoptive parents was habitually resident in a Convention country should proceed under regulation 15.26 30.7 The Queensland, Victorian, and Tasmanian statutes provide that no order for the adoption of a non-citizen child shall be made unless the child has been in the care of the adopters, under the supervision of the Director-General or an authorised agency, for the preceding 12 months, or (but not in Queensland) the adoptive parents were approved as suitable to adopt a non-citizen child before the child was placed in their care.27 In addition, in Queensland, an adoption order can be made only if the competent authority of the foreign country has advised the chief executive that arrangements for the adoption have been made under the law of that country, and (if the country is a Convention country) under the Hague Convention on Intercountry Adoption; and the competent authority for the foreign country has agreed to the adoption.28 In New South Wales, the Court must not make an adoption order in relation to a non-citizen child unless arrangements for adoption of the child have been made by the Director-General or an accredited adoption service provider that may provide intercountry adoption services, or the Director-General applies for the order on the basis that the proposed adoptive parent has intercountry parental responsibility for the child,29 and the provisions of the Act and regulations relating to inter-country adoptions, and any other relevant law, have been complied with.30 For this purpose, ‘other relevant law’ at least arguably includes the laws of the foreign country.31 In the Australian Capital Territory, an adoption order can be made for a non-citizen child only if the provisions of Part 4A (Intercountry and Overseas Adoptions) have been complied with, the more precise wording of which appears to have the effect that such an order can be made only where the requirements of the Hague Convention on Intercountry Adoption, or any applicable bilateral [page 709] arrangements, have been satisfied.32 In Western Australia, an adoption order cannot be made in respect of a child habitually resident in a convention country unless the Court is satisfied that arrangements for the adoption have been made in accordance with the convention and with the laws of the country concerned.33

30.8 In the Australian Capital Territory, it is provided that an order for adoption is not to be made if sought primarily as a means of evading immigration law.34

Choice of Law 30.9 The law applicable on an adoption application is the law of the forum.35 It does not matter that the child is domiciled in a country that does not permit adoption or only permits adoption with the consent of specified persons. The adoption legislation expressly provides that ‘the jurisdiction of the Court to make an adoption order is not dependent on any fact or circumstance not expressly specified in the Act’.36 30.10 It is a common feature of the adoption legislation that the welfare and best interests of the child are to be regarded as the paramount consideration.37 In Re B (S) An Infant, Goff J said that where application is made to adopt a child domiciled abroad ‘the problem is not one of jurisdiction or of applying foreign law, but of considering factually whether, having regard to the foreign element, the English order will have general recognition, and if not, whether the order would still be for the welfare of the child’.38 This approach does not preclude a court from making an order, although it would not accord with the law of the child’s domicile or nationality, but requires the court to take into account whether the order would be recognised abroad and, if not, to weigh that factor with the relevant considerations when deciding whether the order would be for the welfare of the child. In Re G (an infant),39 Myers J followed this approach, holding that, on an application by foreigners to adopt an Australian child intending to take the child abroad, an adoption order could not properly be made unless it were shown that the order would be recognised in the country of the adopters’ domicile, or that the adopters undertake to adopt the child there in the reasonably near future, or that the order would in any event promote the child’s welfare. Goff J’s approach in Re B (S) is now supported by the learned editors of Dicey,40 as well as those of Cheshire.41 [page 710]

Recognition of Interstate and Foreign Adoptions

30.11 The adoption legislation defines the circumstances in which an interstate or foreign adoption will be recognised and the extent to which such an adoption will be given effect for the purposes of applying the local law. So far as recognition is concerned, distinctions are drawn between adoptions effected (a) in other Australian jurisdictions; (b) in countries party to the Hague Convention on Intercountry Adoption (as to which see 30.6 above); (c) in countries with which Australia has a bilateral agreement on inter-country adoption; and (d) in countries not covered by any of the above.

Adoptions in Australia 30.12 In relation to Australian adoptions, in each jurisdiction legislation contains provisions to the following effect: For the purposes of the laws of [the enacting State or Territory], the adoption of a person (whether before or after the commencement of this Act) in another State, or in a Territory, in accordance with the law of that State or Territory has, so long as it has not been rescinded under the law in force in that State, or Territory, the same effect as an adoption order made in [the enacting State or Territory], and has no other effect.42

30.13 In the first place, it must be noted that this provision does not impose any jurisdictional prerequisite to recognition. An interstate adoption that is valid under the law of the state or territory where it was made is entitled to recognition in the forum. The forum cannot deny recognition on the ground that the parties were not domiciled in the other state or territory, or that the order had been made in circumstances which amounted to a denial of natural justice or which would render it contrary to the public policy of the forum to recognise the adoption. Only if the order is a nullity under the law of the place where it was made can it be denied recognition in the forum. If, under the law of the place of adoption, there exist grounds for rescission for reasons such as fraud, the party seeking to upset the order must seek a remedy in the court where the order was made; until and unless it is rescinded, the order must be recognised as effective in the forum. 30.14 In the second place, the section defines the effect of the interstate adoption for the purpose of applying the law of the forum. A child adopted in another state or territory after the date on which the legislation came into operation in the forum is to be recognised for the purposes of the law of the forum as if he or she had been adopted under the adoption legislation of the forum. Thus, if such a child were to claim that he or she was entitled to inherit under a will or intestacy which was governed by the law of the forum as a ‘child’ or ‘issue’ of his or her adoptive parents, the claim would stand on exactly the

same footing as if the child had been adopted under the law of the forum. [page 711]

Countries party to the Hague Convention on Intercountry Adoption 30.15 Because all Convention countries are required to recognise adoptions made in accordance with the provisions of the convention,43 adoptions effected in convention countries are afforded the same recognition as adoptions effected in other Australian states.44 Under the Hague Convention on Intercountry Adoption Regulations, an adoption by a person who is habitually resident in Australia of a child who is habitually resident in another Convention country, granted in accordance with the law of that country, which is certified by an adoption compliance certificate issued by a competent authority of that country, is recognised and effective for the laws of the Commonwealth and each state and territory on and from the day the certificate became effective.45 Recognition means that, under the laws of the Commonwealth and each state and territory (a) the relationship between the child and each of the child’s adoptive parents is the relationship of child and parent; (b) each adoptive parent of the child has parental responsibility for the child; (c) if the law of the country granting the adoption so provides, the adoption of the child ends the legal relationship between the child and the individuals who were, immediately before the adoption, the child’s parents; and (d) the child has the same rights as a child who is adopted under the laws of a state or territory.46 30.16 The states and territories are permitted to enact their own implementing legislation in the same or comparable terms.47 Tasmania implemented the recognition of Hague Convention adoptions simply by adding reference to Hague Convention countries to its statutory provisions recognising interstate adoptions.48 New South Wales, Victoria, Western Australia and Queensland make recognition of an adoption in a Hague Convention country contingent upon the existence of an adoption compliance certificate issued by the central authority of that country.49 The validity of an adoption from a Convention country is to be determined according to whether compliance with the requirements of the convention has been properly certified in accordance with the convention, and not according to the provisions of domestic law.50 Where the

relevant overseas authority has issued such a certificate, the adoption is valid in the forum without any requirement for an order or declaration of validity in a court of the forum.51

Adoption by same-sex couples under the Hague Convention on Intercountry Adoption 30.17 The Hague Convention on Intercountry Adoption does not specify criteria for who may adopt. While the issue of whether de facto couples, samesex couples [page 712] and gay individuals should be able to adopt was discussed in negotiations between states before the creation of the convention, it was found to be too controversial a topic on which to reach a consensus and accordingly this issue was left to each individual state to determine.52 Under the Convention, both the receiving state’s central authority (under Art 15), and the state of origin’s central authority (under Art 16), must prepare reports as to whether prospective parents are appropriate candidates to adopt a child, and if either state regards prospective parents as unsuitable, the adoption cannot occur;53 accordingly, in order for a same-sex couple, or single gay person, to be able to adopt, it would have to be permissible under the law in both states. 30.18 In 2004, the Marriage Legislation Amendment Bill 2004 (Cth) was introduced into Federal Parliament. The Bill would have amended the Marriage Act 1961 (Cth) and the Family Law Act 1975 (Cth) by excluding the recognition of foreign marriages and adoptions by same-sex couples under the Hague Convention on Intercountry Adoption. The Bill passed the House of Representatives, but failed to pass the Senate and lapsed when Parliament was prorogued on 31 August 2004. Legislation was subsequently enacted which applied restrictions on the recognition of same-sex marriages, but was silent on the issue of same-sex adoption.54 30.19 Only a small number of countries allow adoption by same-sex couples. A New South Wales Legislative Council Standing Committee report summarised the position as follows:

Same-sex couples have equal adoption rights with heterosexual couples in Andorra, Belgium, Guam, Iceland, Israel, Norway, Spain, Sweden, South Africa and the United Kingdom. In the Netherlands, adoption by same-sex couples is limited to Dutch children, and in Germany and Denmark it is limited to step-parent adoptions. Adoptions by same-sex couples is legal in several provinces and territories of Canada and in several states in the United States of America.55

30.20 In Australia, currently only the Australian Capital Territory, Western Australia and New South Wales afford same-sex couples the same rights as heterosexual couples in relation to adoption.56 In Northern Territory, Queensland, South Australia and Victoria, same-sex couples cannot legally adopt a child under their adoption legislation.57 In Tasmania, a couple in a ‘significant relationship’ may adopt if a party to the relationship is the natural or adoptive parent of the child proposed to be adopted or either party to the relationship is a relative of the child proposed to be adopted.58 Most jurisdictions also contain provisions that allow for a single person to adopt a child, usually if special or exceptional circumstances are established, and these could enable a homosexual man or woman to adopt. [page 713]

Countries with which Australia has a bilateral agreement on intercountry adoption 30.21 As well as ratifying the Hague Convention, Australia may enter into bilateral agreements with non-convention countries to implement similar cooperative schemes for inter-country adoption.59 Provision is made in the Family Law (Bilateral Arrangements — Intercountry Adoptions) Regulations 1998 (Cth) regs 5 and 6, in similar terms to those made in regs 16 and 18 of the Hague Convention on Intercountry Adoption Regulations described above. Again, provision is made for compliant state legislation.60 In accordance therewith, the Australian Capital Territory, New South Wales and Victoria have made provision for recognition of adoptions made in ‘prescribed overseas jurisdictions’ (being those with which Australia has such bilateral arrangements) if the adoption is granted in accordance with the laws of that jurisdiction and if a designated authority (the equivalent of a Hague Convention central authority) in that jurisdiction has issued an adoption compliance certificate stating that the adoption complied with the laws of that jurisdiction.61 Tasmania has implemented recognition of adoptions effected in bilateral agreement countries

simply by adding reference to ‘agreement countries’ to its statutory provisions recognising interstate adoptions.62 30.22 Countries with which Australia has bilateral inter-country adoption agreements are listed in Sch 1 to the Family Law (Bilateral Agreements — Intercountry Adoption) Regulations 1998 (Cth).63

Other countries 30.23 Conditions are imposed by legislation in each Australian jurisdiction that must be met before a foreign adoption, in a country other than a convention country or one with which there is a bilateral adoption agreement, will be recognised. These conditions deal with both jurisdiction and substantive effect under the foreign law. Although there are some variations between jurisdictions, they follow a generally uniform pattern, and are as follows: 30.24 That the adoption is in accordance with and has not been rescinded under the law of the overseas country.64 This requirement, which is found in all jurisdictions, repeats the requirement that exists in relation to Australian adoptions; namely, that [page 714] the adoption must be valid — that is, not void ab initio — under the law of the place where it was made.65 30.25 That the overseas country was the usual place of abode of the adopting parent or parents for a continuous period of at least 12 months immediately before the commencement of the legal proceeding which resulted in the adoption.66 This requirement is found in the Adoption Acts of all states and territories. It extends by a considerable margin the range of recognition afforded to foreign adoptions at common law. The common law rules were never defined exactly. In Re an Infant,67 Davidson J said that in order to give full international effect to a change of status effected by an adoption order, both the child and the adopter(s) should be domiciled in the country where it was made. This view may have been unduly restrictive, and the domicile of the adopting parent(s) and the residence of the child within the foreign jurisdiction might have sufficed.68 30.26 That in consequence of the adoption, the adopter or adopters had, or

would (if the adopted person had been a young child) have had, immediately following the adoption, according to the law of that country, a right superior to that of any natural parent of the adopted person in respect of the custody of the adopted person,69 and that under the law of that country the adopter or adopters were, by virtue of the adoption placed generally in relation to the adopted person in the position of a parent or parents.70 These two clauses are found in all jurisdictions except South Australia, where it is required that ‘the circumstances in which the order was made, would if they had existed in this State, have constituted a sufficient basis for making an adoption order under this Act’,71 which appears to be an attempt to summarise the same concept more concisely; that is, that it must be an adoption as the forum understands that institution. The equivalence need only be of a general kind, and it is not necessary to ascertain whether the rights of inheritance and custody under the foreign law coincide with those under the law of the forum. Thus, the retention of some rights of inheritance in the estate of the natural parent does not bar recognition.72 But recognition has been refused where the adoption under the foreign law did not affect the relationship [page 715] between the child and its natural parents and did not confer rights of inheritance as against the adoptive parent(s).73 30.27 In Victoria and the Northern Territory, the Governor or Minister respectively may proclaim an overseas country for the purpose of recognising its adoption processes.74 In Victoria, upon proclamation an adoption in such a country will be conclusively presumed to be an adoption order made in accordance with the requirements referred to in the preceding paragraph. In the Northern Territory, adoption orders made in proclaimed countries are given the same effect as adoptions made in the Territory. 30.28 In all jurisdictions other than South Australia, the onus of proving that the preconditions laid down in the legislation have not been satisfied lies upon the party resisting the recognition of the adoption. For it is provided that, once an adoption is shown to exist,75 it shall be presumed that the adoption complies with the preconditions set out above and has not been rescinded.76 30.29 In each jurisdiction, the legislation is premised on the notion that the forum is entitled to assume that questions relating to the welfare of the child had

been adequately considered by the foreign court, tribunal or official. However, as a necessary safeguard, legislation in each jurisdiction contains provisions to the effect that the forum ‘may refuse to recognise an adoption … if it appears to the court that the procedure followed, or the law applied, in connection with the adoption involved a denial of natural justice or did not comply with the requirements of substantial justice’.77 30.30 The relevant requirements of natural justice are those of procedural fairness.78 The express reference to the requirements of ‘substantial justice’ is of interest. As illustrated elsewhere,79 this is a notion developed by the English courts in recent years whereby they have assumed a wide discretion to apply their own concepts of justice and morality, having regard not merely to the procedure of the foreign court, but also to whether those proceedings were abused to disadvantage a resident of the forum. Thus, an adoption effected abroad in perfectly regular proceedings, but with the ulterior motive of obtaining a financial advantage, might be denied recognition in Australia. Equally, recognition could be refused if the foreign proceedings were tainted by fraud or other unconscionable conduct, even though the fraud did not go to the merits of the application, but to the jurisdiction of the foreign court or tribunal and did not render the adoption ineffective under the foreign law.80 [page 716] 30.31 In the Australian Capital Territory, Victoria, Queensland and Western Australia, the legislation explicitly provides that adoptions outside Australia have no legal effect in the forum, except in so far as they satisfy the statutory requirements for recognition.81 Accordingly, overseas adoptions in other countries will only be recognised when they comply with the requirements of the local legislation, and the common law rules of private international law relating to the recognition of foreign adoptions are excluded. While the legislation of the other states does not expressly address this point, it can be inferred that the conditions specified for the recognition of adoptions are intended to be exclusive, and therefore also exclude automatic recognition. Thus in New South Wales, adoptions effected in accordance with the laws of Taiwan or Ethiopia of children brought to Australia under Australia’s intercountry adoption programs, are not entitled to recognition, and the adoption process must proceed afresh in accordance with the law of the forum.82

30.32 Similar to the provision for interstate recognition, the adoption legislation in each state and territory provides for the recognition of overseas adoptions effected in non-convention (and/or non-bilateral agreement) countries by giving an adoption effected in an overseas country the same effect as an adoption order made under the local law presently in force, so long as that adoption has not been rescinded in the country of origin.83 In the Australian Capital Territory, it is further provided that upon adoption the child takes the domicile of its adoptive parent(s) as if it were its domicile of origin.84 A foreign person who is a permanent resident of Australia and is adopted under the law of an Australian jurisdiction by a parent who is, or by parents, at least one of whom is, an Australian citizen, will acquire Australian citizenship.85 A person may also apply for citizenship if adopted by an Australian citizen in a convention country.86 30.33 This statutory equivalence to a local adoption order solves a vexed problem which existed at common law: having regard to the fact that the inheritance rights of adopted children vary greatly in different countries and frequently were less than those of natural children, what effect should be given to foreign adoptions for the purpose of applying the law of the forum? Should a child adopted abroad be regarded as a natural child of the adopter, or as a child adopted under the law of the forum, or should the law of the country of adoption determine its inheritance rights? 30.34 Some judges, particularly in England, considered the problem so difficult that they refused to give any effect to a foreign adoption for the purpose of [page 717] English law.87 Most Australian judges solved the problem by giving the child the inheritance rights that it enjoyed under the law governing its adoption.88 But, as was pointed out by the Court of Appeal in Re Valentine’s Settlement,89 this approach is inconsistent with the fundamental rule in the law of conflicts that matters of succession are governed by the law of the deceased’s last domicile in the case of movables and by the lex situs in the case of immovables.90 30.35 This left basically two options: one was to see whether under the foreign law the child was placed by adoption in a position, both as regards property rights and status, substantially equivalent to that of a natural child of the adopter(s), and if so, then give the child such rights as a natural child would have under the law of the forum.91 Alternatively, the forum could recognise the

separate status of an adopted child and give the child adopted abroad the same position as a child adopted under the law of the forum. This view was favoured by the majority of the Court of Appeal in Re Valentine’s Settlement.92 30.36 The Australian legislation has steered a middle course. It effectively requires that the child adopted abroad be placed by the law of the foreign country in a position substantially equivalent to that of a natural child of the adopter(s), if it is to be recognised. But it then goes on to provide that, once recognised, the effect of the foreign adoption for the purpose of applying the law of the forum is to be the same as that of an adoption effected under the law of the forum. It should be stressed that this only applies where the law governing the question before the court is that of an Australian jurisdiction; for example, an estate of a deceased who died domiciled in New South Wales. If the question before the court is governed by foreign law — for example, the law of England — the effect to be given to the foreign adoption, or for that matter an Australian adoption, will be a matter for that law.

Declarations as to validity 30.37 In each jurisdiction, the legislation confers upon the Supreme Court (including the County Court in Victoria93 and the Youth Court in South Australia)94 and the Family Court of Western Australia,95 jurisdiction to make a declaration of validity of an adoption effected in a country outside the Commonwealth and [page 718] its territories.96 However, in New South Wales, this procedure is not available in respect of an adoption order made in a convention country.97 Application may be made by the adopted child, the adoptive parent or either or both of the adoptive parents, or a person claiming a relationship by virtue of the adoption through or to the adopted child.98 30.38 A declaration of validity is in effect a declaration that the overseas adoption is one that complies with the requirements for recognition, and thus is recognised and effective under the law of the forum; the test is that of compliance with the statutory requirements for recognition, referred to above,99 as applicable to the relevant state or territory.100 There is no jurisdictional

requirement specified in the section. It is submitted that any of the persons stipulated, whether domiciled or resident in the jurisdiction or not, may institute proceedings, subject to the court’s discretion to decline to hear and determine the application. _________________________ 1.

Adoption Act 1993 (ACT); Adoption Act 2000 (NSW); Adoption of Children Act 1994 (NT); Adoption Act 2009 (Qld); Adoption Act 1988 (SA); Adoption Act 1988 (Tas); Adoption Act 1984 (Vic); Adoption Act 1994 (WA).

2.

ACT: s 13(1), s 9(b); NSW: s 23(2); NT: s 6(1); Qld: s 189(1)(a), (c)(iii); SA: s 8(1); Tas: s 6(1)(a); Vic: s 7(1)(a).

3.

WA: s 65(1).

4.

Qld: s 189(1)(c)(ii).

5.

Tas: s 6(1)(b); Vic: s 7(1)(b).

6.

ACT: s 8; NSW: s 23(4); NT: s 7; Qld: s 11; Tas: s 7; Vic: s 8; WA: s 65(3). However, the South Australian Act is silent on this issue.

7.

See Chapter 13.

8.

Re Adoption Application [1952] Chapter 16; [1951] 2 All ER 931; Re G (an infant) [1968] 3 NSWR 483. See also Re an Infant [1981] Qd R 225.

9.

See Re G (an infant) [1968] 3 NSWR 483.

10. Kempe v Webber (2003) 31 Fam LR 332; Hafza v Director-General of Social Security (1985) 6 FCR 444. 11. NSW: s 23(3); NT: s 6(2); SA: s 8(3); Tas: s 6(2)(a)–(f);Vic: s 7(2); WA: s 65(2). 12. Re an Infant M (1967) 87 WN (NSW) (Pt 1) 48; Re G (an infant) [1968] 3 NSWR 483. 13. Immigration (Guardianship of Children) Act 1946 (Cth) s 4AAA(2)(a), (b). 14. At the time of writing, the Minister for Immigration and Citizenship. 15. Immigration (Guardianship of Children) Act 1946 (Cth) s 4AAA(2)(c). 16. Immigration (Guardianship of Children) Act 1946 (Cth) s 4AAA(3). 17. Re DYK & The Adoption Act 2000 [2005] NSWSC 1045, [28]. 18. ACT: s 37; NSW: s 77; NT: s 37; Qld: s 192; Tas: s 42; Vic: s 47; see Re DYK & The Adoption Act 2000 [2005] NSWSC 1045, [30]-[31]. 19. At the time of writing, the convention countries other than Australia were: Albania, Andorra, Austria, Azerbaijan, Belarus, Belgium, Bolivia, Brazil, Bulgaria, Burkina Faso, Burundi, Canada (in relation only to the following provinces and territories: Alberta, British Columbia, Manitoba, New Brunswick, Prince Edward Island, Saskatchewan and the Yukon Territory, Northwest Territories, Nova Scotia, Nunavut, Ontario), Chile, China, Colombia, Costa Rica, Cyprus, Czech Republic, Denmark (other than Faroe Islands and Greenland), Ecuador, El Salvador, Estonia, Finland, France (other than the overseas territories), Georgia, Germany, Guatemala, Guinea, Hungary, Iceland, India, Israel, Italy, Latvia, Lithuania, Luxembourg, Malta, Mauritius, Mexico, Moldova, Monaco, Mongolia, Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Romania, San Marino, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Thailand, United Kingdom of Great Britain and Northern Ireland (extended to the Isle of Man), Uruguay and Venezuela.

20. Hague Convention on Intercountry Adoption Regulations 1998, reg 4. 21. Hague Convention on Intercountry Adoption 1993, Art 6. 22. See note 21 above, at Art 14. 23. See note 21 above, at Art 15. 24. See note 21 above, at Art 16. 25. See note 21 above, at Art 17(c). 26. NSW s 107 purports to make provision for the adoption of children from convention countries but would have the effect of requiring compliance with other provisions of the Act that are not identical or comparable to those of the Hague Convention on Intercountry Adoption Regulations, reg 15, and accordingly applications are to be considered under reg 15 of the Commonwealth regulations, not s 107 of the New South Wales Act: Re S and the Adoption Act 2000 (NSW) (No 2) [2006] NSWSC 1438; (2006) 68 NSWLR 467; Application of MGO and AAO; re LDC [2011] NSWSC 951. 27. Qld: s 199; Tas: s 46(1); Vic: s 51(1)(b). 28. Qld: s 200(c), (d). 29. A person has intercountry parental responsibility for a child if the child is from a country other than a convention country or a prescribed overseas jurisdiction and the person, after being resident in that country for 12 months or more or being domiciled in that country, was given parental responsibility for the child under the law of that country: s 31(2) 30. NSW: s 31, s 90(1)(g). 31. Re S and the Adoption Act 2000 (NSW) (No 2) [2006] NSWSC 1438; (2006) 68 NSWLR 467 at 479 [42]. 32. ACT: ss 39H, 57B, 57J. 33. WA: s 68(1)(g). 34. ACT: s 12. 35. Re B (S) (An Infant) [1968] Ch 204 at 210. 36. ACT: s 8(1); NSW: s 23(4); NT: s 7; Qld: s 11; Tas: s 7; Vic: s 8; WA: s 65(3). The South Australian Act does not contain an equivalent provision. See also Re Leduc (1961) 25 DLR (2d) 680. 37. ACT: s 5; NSW: ss 7(a), 8(1)(a); NT: s 8; Qld: s 6(1); SA: s 7; Tas: s 8; Vic: s 9; WA: s 3(1)(a). 38. [1968] Ch 204 at 212–13. 39. [1968] 3 NSWR 483. 40. Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012, pp 1245– 6. 41. Cheshire, North and Fawcett, Private International Law, 14th ed, Oxford University Press, Oxford, 2008, pp 1158–60; see also Webb and Davis, Casebook on the Conflict of Laws of New Zealand, Brookers, Auckland, 1970, p 308. 42. ACT: s 53; NSW: s 102; NT: s 49; Qld: s 291 (also applies to New Zealand); SA: s 20; Tas: s 59(2); Vic: s 66; WA: s 136. 43. Hague Convention on Intercountry Adoption 1993, Art 23. 44. ACT: s 57D-57F; NSW: s 108, 109; NT: s 50; Qld: s 292; SA: s 21(a1), 21(1); Tas: s 59; Vic: s 69D69F; WA: ss 136A, 136B. 45. Hague Convention on Intercountry Adoption Regulations, reg 16.

46. See note 45 above, at reg 18. 47. See note 45 above, at reg 34(1). 48. Tas: s 59. 49. NSW: s 108(1)(b); Qld: s 37A; Vic: s 69D(1), s 69E; WA: s 136A(1), s 136C. 50. Re C and the Adoption Act 2000 (NSW) [2007] NSWSC 768 at [30] per Palmer J. 51. Re C and the Adoption Act at [18]–[19] per Palmer J. 52. Celica Bojorge, Intercountry Adoptions: In the Best Interests of the Child? [2002] QUTLJJl 15 at 277– 8. 53. Cheshire, North and Fawcett, 2008, p 1170-1171. 54. See Marriage Amendment Act 2004 (Cth); and see Chapter 24 above. 55. NSW Legislative Council Standing Committee on Law and Justice, Adoption By Same-Sex Couples, Report 39, July 2009, p 21. 56. ACT: s 14(b); WA: ss 38(2), 39(1)(e); NSW: s 23(1), s 26. 57. NT: s 13; Qld: s 76; SA: s 12; Vic: s 11. 58. Tas: s 20(2A)(a), (b). 59. Family Law Act 1975 (Cth) s 111C(3); and Family Law (Bilateral Arrangements — Intercountry Adoption) Regulations 1998 (Cth). 60. Family Law (Bilateral Arrangements — Intercountry Adoption) Regulations 1998 (Cth) reg 8. 61. ACT: s 57J, s 57K; NSW: s 113; Vic: s 69U. 62. See Tas: s 59. ‘Agreement countries’ are defined as being prescribed overseas jurisdictions within the meaning of the Family Law (Bilateral Agreements——Intercountry Adoption) Regulations 1998 (Cth), as amended from time to time: Tas: s 3. 63. Only the People’s Republic of China is so listed. China has since ratified the Hague Convention on Intercountry Adoption; thus, while still listed in Sch 1 of the Family Law (Bilateral Arrangements — Intercountry Adoption) Regulations 1998, it is also now listed in Sch 2 of the Hague Convention on Intercountry Adoption Regulations. This renders these provisions somewhat irrelevant. 64. ACT: s 57L(2)(a); NSW: s 116(2)(a); NT: s 50(1)(a); Qld: s 293(1)(a); SA: s 21(1)(a); Tas: s 60(1), 60(2)(a); Vic: s 67(1), 67(2)(a); WA: s 138(1)(a). 65. See, for example, Re an Adoption (1995) 14 SR (WA) 387 (adoption must be by order to be recognised; adoption by deed not recognised). 66. ACT: s 57L(1) (domicile an alternative); NSW: s 116(1)(b) (domicile an alternative); NT: s 50(1)(d) (or prior approval of Minister); Qld: s 293(1)(b) (domicile an alternative); SA: s 21(1)(b) (domicile an alternative); Tas: s 60(2)(b) (residence only); Vic: s 67(2)(aa) (or prior approval of Director-General or approved agency); WA: s 138(1)(b) (domicile an alternative or prior placement with adoptive parent on conditions approved by CEO or state or territory equivalent). 67. (1934) 34 SR (NSW) 349 at 357. 68. Re Valentine’s Settlement [1965] 1 Ch 831 at 842–3 per Lord Denning MR; see also Cheshire, North and Fawcett, 2008, pp 1174–5, who would no longer insist upon the residence of the child in the country of adoption; Dicey, Morris & Collins, 2012, pp 1254–5; Graveson, Conflict of Laws, 7th ed, Sweet & Maxwell Ltd, London, 1974, p 387. 69. ACT: s 57L(2)(b); NSW: s 116(2)(b); NT: s 50(1)(b); Qld: s 293(1); Tas: s 60(2)(c); Vic: s 67(2)(b); WA: s 138(d)(i).

70. ACT: s 57L(2)(c); NSW: s 116(2)(c); NT: s 50(1)(c); Qld: s 293(1); Tas: s 60(2)(d); Vic: s 67(2)(c); WA: s 138(1)(d)(ii). 71. SA: s 21(1)(c). 72. Bouton v Noyaux (Powell J, SC (NSW), 2755/92, 2 August 1993, unreported); reversed but without affecting this point in Bouton v Labiche (1994) 33 NSWLR 225. 73. In re M and the Adoption of Children Act (1989) 13 Fam LR 333. 74. Vic: s 67(3); NT: s 51. 75. As to the method of proving a foreign adoption, see ACT: s 116; NSW: s 126; NT: s 82; Qld: s 293(5); Tas: ss 60(3), 96; Vic: s 67(5); WA: s 138(7), and the discussion in Re an Adoption Application [1981] 2 NSWLR 645. 76. ACT: s 57L(5); NSW: s 116(5); NT: s 50(2)(a); Qld: s 293(3); Tas: s 60(5); Vic: s 67(7); WA: s 138(2). See, for example, Miles v Miles [2006] NSWSC 918 at [27]–[29]. 77. ACT: s 57L(3); NSW: s 116(3); NT: s 50(2)(b); Qld: s 293(4); SA: s 21(1)(d); Tas: s 60(4); Vic: s 67(6); WA: s 138(1)(c). 78. See Chapter 40 below. 79. See 26.67–26.75. 80. Middleton v Middleton [1967] P 62, followed by the New South Wales Court of Appeal in Bouton v Labiche (1994) 33 NSWLR 225 (claim by child for a grant of letters of administration of her late birth father’s estate held to have been wrongly dismissed, as adoption order from Mauritius should be refused recognition because it was based on fraudulent and false evidence and failed to comply with requirements of substantive and natural justice, in that the adoptive parents knew who the 14-year-old’s birth father was and lied about it). 81. ACT: s 54(1); Qld: s 293(6); Tas: s 60(6); Vic: s 67(8). 82. Application of JGP & ASP, Re AJP [2011] NSWSC 151; Application of MSC and CJC; re HES [2011] NSWSC 950; Application GOC & GC; re WJS [2013] NSWSC 563; Application MKL & MJL; re YSL [2013] NSWSC 564; Application ADC & AMC; re HAC [2013] NSWSC 565 83. ACT: s 57L(1), 57L(2)(a); NSW: s 116(1)–(2); NT: s 50(1)(a); Qld: s 293(1)(e), 293(2); SA: s 21(1), (4); Tas: s 60(1); Vic: s 67(1); WA: s 138(1). 84. ACT: s 46(1). 85. Australian Citizenship Act 2007 (Cth) s 13. 86. See note 85 above, at ss 19B–19F. 87. Re Wilson [1954] 1 Ch 733; Bairstow v Queensland Industries Pty Ltd [1955] St R Qd 335; Re Wilby [1956] P 174. This approach was rejected by all members of the Court of Appeal in Re Valentine’s Settlement [1965] 1 Ch 831. 88. Re Pearson [1946] VLR 356; L v L [1959] VR 213; In the Estate of Searle [1963] SASR 303; Re Pratt [1964] NSWR 105; Re Estate McLaren (decd) [2001] SASC 103 at [31] per Williams J. 89. [1965] 1 Ch 831 at 844 per Lord Denning MR, at 847 per Danckwerts LJ. See also Gerber, ‘Some Aspects of Adoptions in the Conflict of Laws’ (1965) 38 ALJ 309. 90. See the remarks of Lush J in Heron v National Trustees Executors and Agency Co of Australasia Ltd [1976] VR 733 at 738. 91. Re Marshall [1957] Ch 507 at 523; Re Estate McLaren (decd) [2001] SASC 103 at [31] per Williams J. 92. See also Kohut v Fedyna [1964] 2 OR 296. This is now the position in England: Cheshire, North and Fawcett, 2008, pp 1174–5.

93. Vic: s 6(1)(b). 94. SA: s 4(1). 95. WA: s 4. 96. ACT: s 57M(1); NSW: s 117(1); NT: s 52(1); Qld: s 299(1); SA: s 21(2); Tas: s 61(2); Vic: s 69(1); WA: s 138(3). 97. NSW: ss 116(1), 117(1); Re C and the Adoption Act 2000 (NSW) [2007] NSWSC 768. 98. ACT: s 57M(1); NSW: s 117(1) (‘any of the parties to an adoption’); NT: s 52(1); Qld: s 299(2); SA: s 21(2) (gives that right to ‘an interested person’); Tas: s 61(4); Vic: s 69(2); WA: s 138(3) (‘any of the parties to an adoption’). 99. See 30.24–30.26 above. 100. ACT: s 54(1); NSW: s 117(1); NT: s 52(1); Qld: s 299(1); SA: s 21(2); Tas: s 61(2); Vic: s 69(1); WA: s 138(3).

[page 719]

Chapter 31

Mental Incapacity Jurisdiction in the Care and Control of the Mentally Ill and Incapable At common law 31.1 At common law, the jurisdiction of English courts over the property and person of the mentally ill was founded on several bases. The primary basis on which the courts exercised jurisdiction was physical presence of the incapacitated person in the jurisdiction, regardless of nationality or domicile.1 An alternative basis of jurisdiction is the presence of property of the incapacitated person in the jurisdiction, whether real or personal, even though that person was a foreigner and physically outside the jurisdiction,2 but the better view is that this does not confer jurisdiction over the person of the mentally incapable person but only in respect of that person’s property in the jurisdiction, though the court may grant leave for steps to be taken to bring the person to the jurisdiction.3 Earlier editions of this work have suggested that nationality or allegiance sufficed, so that the jurisdiction of the English courts over mentally incapable persons extended to all British subjects wherever resident and whether they possessed property in England or not,4 citing Ex parte Southcote.5 While that case can be explained on the bases that the mentally incapacited person [page 720] had property in the jurisdiction,6 or that he was ordinarily resident in and only temporarily absent from the jurisdiction,7 the judgment emphasises the status of

British subject. Moreover, the origins of the protective nature of the jurisdiction in the Royal prerogative,8 support allegiance – and nowadays nationality – as the foundation for jurisdiction. This is consistent with the position in respect of children.9 Additionally, courts of the forum have jurisdiction in respect of an incapable person outside the forum, even if he or she has no property in the forum, if the person has been abducted from the forum.10

Under statute 31.2 Now, in England, the Mental Capacity Act 2005 (United Kingdom) gives effect to the Hague Convention on the International Protection of Adults in January 2000, which entered into force on 1 January 2009.11 31.3 Australia is not a party to the Convention. In Australia, jurisdiction in mental health is now regulated by statute.12 In so far as the statutory provisions relate to the care and custody of the person of the patient, the provisions must of necessity be interpreted as referring only to persons who, at the time of proceedings, are physically within the jurisdiction.13 But there is little doubt that the courts also have jurisdiction to inquire into the mental health of a person who owns property within the jurisdiction for the purpose of protecting that property, even though the person is not within the jurisdiction.14 [page 721]

Choice of law 31.4 Although there is scarce authority on the question, it would seem that an Australian court exercising jurisdiction in respect of an incapable person domiciled or resident abroad who was temporarily present in Australia (on the basis of presence in the jurisdiction) or who had property in Australia (on the basis of presence of property in the jurisdiction) should generally apply the law of the forum, that is to say Australian law.15

The Effect of Foreign Orders Within the Forum

31.5 The jurisdiction of a foreign court in respect of an incapable person has been accepted when based merely on presence,16 and it may be supposed would also be accepted on the basis of presence of property.17 However, a decision by a foreign court that a person resident in that country is mentally incapable is not binding within the forum, and if the question of the person’s capacity arises in proceedings in the forum, the court must make its own determination, giving due, but not conclusive, weight to the foreign orders.18 31.6 While the power of a curator appointed by a foreign court to control the person of an incapable person is not recognised in the jurisdiction,19 the courts of the forum may in a proper case hand over the incapable person to the care of the foreign curator. In Re S (Hospital Patient: Foreign Curator),20 a Norwegian citizen domiciled in that country had become incapable during his stay with a friend in England, where he was placed in a hospital and was near death. A guardian was appointed in Norway, who sought to have him repatriated to that country. The friend opposed this. Hale J held that the jurisdiction of the English court to decide this issue was not displaced by the appointment of the guardian in Norway, even though the appointment of a guardian under the law of the patient’s domicile should be regarded as lawful in England. The question was what the best interests of the patient required. Her Ladyship concluded that under the circumstances it was in his best interests to be returned to Norway. One can conclude, therefore, that the forum where the mentally incapable person is present will recognise the primacy of the guardian appointed by the domicile over the body of the mentally incapable person, but is not bound to hand over the mentally incapable person to that guardian if it judges that it is not in his or her best interests to do so. 21 [page 722] 31.7 A foreign administrator with authority under the law of the domicile of a foreigner who is mentally incapable can demand the delivery of movable property of the patient situated within the forum, provided that no receiver, committee or curator has been appointed locally. This is the effect of the decision of the Court of Appeal in Didisheim v London and Westminster Bank.22 In that case, a woman domiciled and resident in Belgium was entitled to certain securities deposited with the defendant bank in London. She became mentally ill, though she was not so declared judicially, and Didisheim, a Belgian, was appointed by the Belgian court as her provisional administrator. Didisheim

applied to the bank for the securities and upon being refused delivery of them brought an action for their recovery. The Court of Appeal held that Didisheim was entitled to recover the property, and that on ordinary principles of private international law the court was bound to recognise the authority conferred on the administrator by Belgian law (where the woman was domiciled and resident), except to the extent that to do so would be inconsistent with protective proceedings in the forum.23 As Lord Lindley MR said: … here we are dealing with an alien domiciled abroad and over whom the courts of this country have no jurisdiction except such as is conferred by the fact that she has property here. All that the court here has to do is to see that the person claiming it is entitled to have it.24

This does not mean that the court has some role to fulfil in approving the title of the foreign administrator: the administrator’s right exists and is recognised even without legal proceedings and does not depend upon a prior order of the court of the forum.25The principle applies only in respect of movable property of a mentally incapable person, as only a curator appointed in the country of situation can exercise control over immovable property.26 31.8 Where a person has been found mentally incapable and control of his or her property vested in a committee or curator by a foreign court (or by other process authorised by the laws of the country in which the person is resident), it will be appropriate to order the transfer to the committee of at least the income,27 if not the capital,28 if it can be shown that the property is required for the maintenance or other purposes of the person,29 but it will otherwise not be appropriate to do so.30 [page 723] 31.9 There are three qualifications to the principle stated by Lord Lindley. First, the foreign curator must, by the law from which his or her authority is derived, be entitled to collect the property within the forum. If the authority of the foreign curator is limited to the administration of assets within the jurisdiction of appointment, there can be no right to property in the forum.31 Secondly, the mentally incapable person must be a foreigner, domiciled abroad, over whom the forum has no personal jurisdiction.32 Finally, no curator must have been appointed in the forum, as a local curator or committee, if the appointed is the only proper representative of the incapable person in the jurisdiction.33 31.10 So far as administrators appointed in jurisdictions other than that of the

domicile are concerned, the courts of the forum have a general discretion. While such a guardian has no claim as of right to collect the property within the forum, this does not mean that such a claim will not be allowed in whole or in part.34 31.11 Each Australian jurisdiction has made legislative provision for the recognition and enforcement of orders in relation to mental health in other states, though the nature of the orders that can be recognised and enforced varies.35 In New South Wales, specific provision is made that the Supreme Court may, if satisfied that a person has been found incapable of managing his or her affairs after legal inquiry in any other state or territory, or another country designated under the NSW Trustee and Guardian Act 2009, make a declaration that the person is incapable of managing his or her affairs, and order that such of his or her estate as is situated in New South Wales be subject to management under the Act.36 In Re an Alleged Incapable Person FCC and the Protected Estates Act 1983,37 Powell J held that [page 724] the predecessor of this provision38 required that there should have been a proceeding (an inquiry) to which the allegedly incapable person had been joined as a party defendant, in which the issue to be tried was his incapacity to manage his affairs, and that this not having been done, a declaration, made by the Supreme Court of Queensland in common law proceedings instituted by the alleged incapable person for damages for personal injuries, in the exercise of cross-vested jurisdiction, that the plaintiff was an incapable person, and consequential orders providing for the management of the judgment fund by the Protective Commissioner for New South Wales, were ineffective because they did not qualify to be registered in the Supreme Court of New South Wales.39 However, in Re DEF and the Protected Estates Act 1993,40 Campbell J did not follow Re FCC, holding that where there had been even a colourable exercise of cross-vested jurisdiction by the Supreme Court of Queensland appointing the Protective Commissioner as manager of an estate in New South Wales, such order was recognised as valid in New South Wales pursuant to section 185 of the Evidence Act 1999, without any requirement for registration. In Ocalewicz v Joyce41, Macready AsJ applied Re DEF to hold that an order of the South Australian Guardianship Board to the effect that a protected person (who was domiciled in New South Wales) not make a will except in the presence and with the consent of the Public Trustee, was to be recognised in New South Wales, so

as to deprive the protected person of testamentary capacity and require the revocation of a grant of probate of his will made otherwise than in compliance with the order. 31.12 Under the Trustee and Guardian Act 2009 (NSW) s 81, the New South Wales Trustee may, upon authorisation by the Public Trustee of a reciprocating state, under the law of the reciprocating jurisdiction, administer property within New South Wales of a person from another jurisdiction who is incapable of managing their own affairs.42The New South Wales Trustee may exercise all powers in relation to such a person as could be exercised in relation to a protected person within New South Wales. Such powers include the sale or management of assets within New South Wales, both real and personal.43 After payment of all local debts and charges, the New South Wales Trustee must transmit the residue to the Public Trustee of the reciprocating jurisdiction.44 The New South Wales Trustee may also authorise the Public Trustee of a reciprocating jurisdiction to manage the property within that jurisdiction of a person incapable of managing their own affairs.45 Similar legislation exists in other Australian jurisdictions.46 _________________________ 1.

Re Sottomaior (1874) LR 9 Ch App 677; Re Burbidge [1902] 1 Ch 426 (CA); In the matter of the Princess Bariatinski (1843) 1 Ph 375; Re S (Hospital Patient) (Foreign Curator) [1996] Fam 23; Re M and the Protected Estates Act 1983 [2003] NSWSC 344 at [7] per Young CJ in Eq. See also Cheshire, North and Fawcett, Private International Law, 14th ed, Oxford University Press, Oxford, 2008, pp 1179–89; Dicey, Morris and Collins The Conflict of Laws 15th ed, Sweet & Maxwell, London, 2012, [21-003], p 1263.

2.

Re Scott (1874) LR 9 Ch App 677; Re Knight [1898] 1 Ch 257, 260-1 (CA); Re Burbidge [1902] 1 Ch 426; Re Bulger (1911) 19 WLR 573; 1 WWR 248 (Manitoba); Re Magavalis [1983] Qd R 59 at 64; MS v ES [1983] 3 NSWLR 199; Re M and the Protected Estates Act 1983 [2003] NSWSC 344; Urquhart v Lanham [2002] NSWSC 119 at [41] per Young CJ in Eq; Angliss v Urquhart [2002] NSWCA 256 at [34]; Theobald on Lunacy, Stevens & Sons, London, 1924, pp 19, 20; cf Re Soltykoff [1898] WN 77 (CA).

3.

Re Wykeham (1823) T&R 537; Re Scott (1874) 22 WR 748; MS v ES [1983] 3 NSWLR 199.

4.

Davies, Bell and Brereton, Nygh’s Conflict of Laws in Australia, 8th ed, LexisNexis, Sydney, 2010, [31.1], p 643.

5.

(1751) Amb 109 at 112; (1751) 2 Ves Sen 401.

6.

This explanation is favoured by Cheshire, North & Fawcett (2008), p 1181, who doubt that nationality or domicile would otherwise suffice; and by Dicey Morris & Collins (2010), p 1263, n 15.

7.

Re M and the Protected Estates Act 1983 [2003] NSWSC 344 at [7] per Young CJ in Eq.

8.

See the discussion by Powell J in MS v ES [1983] 3 NSWLR 199 at 202.

9.

As to which see 28.10.

10. Urquhart v Lanham [2002] NSWSC 119 at [42] per Young CJ in Eq.

11. The convention has been ratified by and is in force in Austria, the Czech Republic, Estonia, Finland, France, Germany, Switzerland, and the United Kingdom (but only for Scotland); however, it is effectively implemented in England, though not through ratification, by the Mental Capacity Act 2005 (United Kingdom). 12. Mental Health (Treatment and Care) Act 1994 (ACT) (dealing with the management of the person); Guardianship and Management of Property Act 1991 (ACT) (dealing with the management of property); Mental Health Act 2007 (NSW) (dealing with the management of the person); NSW Trustee and Guardian Act 2009 (dealing with the management of property); Adult Guardianship Act 1988 (NT); Mental Health and Related Services Act 2005 (NT); Mental Health Act 2000 (Qld) (dealing with the management of the person); Guardianship and Administration Act 2000 (Qld) (dealing with the management of property); Mental Health Act 2009 (SA) (dealing with the management of the person); Guardianship and Administration Act 1993 (SA) (dealing with the management of property); Mental Health Act 1996 (Tas) (dealing with the management of the person); Guardianship and Administration Act 1995 (Tas) (dealing with the management of property); Mental Health Act 1986 (Vic) (dealing with the management of the person); Guardianship and Administration Act 1986 (Vic) (dealing with the management of property); Mental Health Act 1996 (WA) (dealing with the management of the person); Guardianship and Administration Act 1990 (WA) (dealing with the management of property). 13. Re G [1966] NZLR 1028 at 1030. 14. MS v ES [1983] 3 NSWLR 199; Re M and the Protected Estates Act 1983 [2003] NSWSC 344. 15. Cf Cheshire, North & Fawcett (2008), p 1183. 16. New York Securities Trust v Keyser [1901] 1 Ch 666; Re De Larragoiti [1907] 2 Ch 14. 17. Dicey, Morris & Collins (2012), [21-026], p 1270. 18. Ex parte Otto Lewis (1749) 27 ER 1043, Ves Sen 298 (court of forum was obliged to take notice of decision by jurisdiction of ordinary residence that person was non compos); Dyce Sombre v Troup (1856) Deane 22 at 74 (in a probate suit, evidence given before foreign tribunals on inquiry as to sanity of testator could not be “relied upon”, but that appears to be a rejection of its credibility). 19. Re Houston (1826) 1 Russ 312. 20. [1996] Fam 23. 21. Cf Grimwood v Bartels (1877) 46 LJ Ch 788. 22. [1900] 2 Ch 15, followed in Pelegrin v Coutts and Co [1915] 1 Ch 696; Re S [1951] NZLR 122; Kamouh v Associated Electrical Industries International Ltd [1980] QB 199 at 205-6; Re FN & the Mental Health Act 1958 [1984] 3 NSWLR 520 at 524. 23. [1900] 2 Ch 15, at 51. 24. See note 23 above, at 51. 25. Pelegrin v Coutts and Co [1915] 1 Ch 696; Re S [1951] NZLR 122 at 130. 26. Grimwood v Bartels (1877) 46 LJ Ch 788. 27. Re Garnier (1872) LR 13 Eq 532; Re Brown [1895] 2 Ch 666; New York Security and Trust Co v Keyser [1901] 1 Ch 666; Re FN & the Mental Health Act 1958 [1984] 3 NSWLR 520 at 524. 28. Newton v Manning (1849) 1 Mac & G 362; 41 ER 1305; Re Elias (1851) 3 Mac & G 42 ER 251; Scott v Bentley (1855) 1 K & J 69 ER 464; Re Mitchell (1881) LR 17 Ch D 515; Re Knight [1898] 1 Ch 257; Didisheim v London and Westminster Bank [1900] 2 Ch 15; Re De Larragoiti [1907] 2 Ch 14; see also Spencer v Williams [1984] VR 120 at 124); Re FN & the Mental Health Act 1958 [1984] 3 NSWLR 520 at 524. 29. Re Knight, cf Re De Larragoiti; Re FN & the Mental Health Act 1958 [1984] 3 NSWLR 520 at 524.

Re Stark (1850) 2 Mac & G 174; 42 ER 67; Scott v Bentley; Re Barlow’s Will (1887) LR 36 Ch D 287; 30. Didisheim v London and Westminster Bank; Re FN & the Mental Health Act 1958 [1984] 3 NSWLR 520 at 524. 31. Re Barlow’s Will (1887) 36 Ch D 287; Didisheim v London and Westminster Bank [1900] 2 Ch 15 at 50 per Lord Lindley MR. 32. Re Garnier (1872) LR 13 Eq 532; Didisheim v London and Westminster Bank [1900] 2 Ch 15 at 51 per Lord Lindley MR. 33. Re RSA [1901] 2 KB 32; Didisheim v London and Westminster Bank [1900] 2 Ch 15 at 51 per Lord Lindley MR. 34. New York Securities Trust v Keyser [1901] 1 Ch 666; Re De Larragoiti [1907] 2 Ch 14; Re FN and the Mental Health Act 1958 [1984] 3 NSWLR 520 at 524. 35. Mental Health (Treatment and Care) Act 1994 (ACT) s 48D (recognition of orders for person to be detained); Guardianship and Management of Property Act 1991 (ACT) s 12 (recognition of appointment of guardians and managers); Guardianship Act 1987 (NSW) s 48B (recognition of guardians); Guardianship Regulation 2010, reg 16; Adult Guardianship Act 1988 (NT) s 30 (recognition of appointment of guardians); Mental Health and Related Services Act 2005 (NT) Part 18 Interstate Orders, s 150 (application of interstate mental health orders); Guardianship and Administration Act 2000 (Qld) ss 166–171 (prescribed orders); Guardianship and Administration Act 1993 (SA) s 34(2) (reciprocal guardianship arrangements); Mental Health Act 2009 (SA) ss 61–78 (application of interstate mental health orders); Mental Health Act 1996 (Tas) s 83D (interstate officers may act in Tasmania); Guardianship and Administration Act 1995 (Tas) ss 81, 81A (recognition of orders made in other states); Mental Health Act 1986 (Vic) ss 93A–93L (recognition of corresponding laws); Guardianship and Administration Act 1986 (Vic) ss 63A–63G (registration of interstate orders relating to guardians and administrators); Guardianship and Administration Act 1990 (WA) s 44A (reciprocal guardianship arrangements). 36. NSW Trustee and Guardian Act 2009 s 42. Cf Re S [1951] NZLR 122, in which an order of the Supreme Court of New South Wales was acted upon by the Supreme Court of New Zealand under equivalent legislation. 37. (1990) 19 NSWLR 541 at 549–50 per Powell J. 38. Protective Estates Act 1983 (NSW) s 14. 39. Cf Re S [1951] NZLR 122 at 127–8. 40. [2005] NSWSC 534 at [71]–[76]. 41. [2012] NSWSC 1163 at [33]–[36]. 42. NSW Trustee and Guardian Act 2009 s 81(2). 43. See note 42 above, s 81(3). 44. See note 42 above, s 81(4). 45. See note 42 above, s 81(5). 46. Guardianship and Management of Property Act 1991 (ACT) s 12; Adult Guardianship Act 1988 (NT) s 30; Public Trustee Act 1978 (Qld) ss 78, 79; Aged and Infirm Persons Property Act 1940 (SA) ss 32A, 32B; Public Trustee Act 1930 (Tas) s 67 (applies only to Australian states, New Zealand and England); State Trustees (State Owned Company) Act 1994 (Vic) s 12; Guardianship and Administration Act 1990 (WA) ss 83A–83D.

[page 725]

PART VI

Property Chapters 32

Property: Preliminary Matters

33

Transactions Between Living Persons

34

Trusts

[page 727]

Chapter 32

Property: Preliminary Matters The Distinction Between Movables and Immovables 32.1 The subdivision of property into land and other forms of property arose in the Middle Ages because of the overriding importance of land to the feudal system as against all other forms of property. On the European Continent the distinction drawn was between movable and immovable property. In England, in a parallel development, lawyers drew a distinction between real and personal property. 32.2 Although both the concept of immovable property and of realty had land at their core, the lines of distinction were not the same. For some reason the English concept of realty was much more narrowly defined and rights that certainly savoured of land were defined by the common law as personalty. Thus, leaseholds were classified as chattels real and belonging, however anomalously, to the category of personalty. The English ecclesiastical courts administering the law of probate treated a mortgage debt secured over land as personalty descending to the administrator and not to the heir at law who was entitled to the realty. Equally, for the peculiar purposes of the English law of equity, an interest in land held on trust for sale but not yet sold was treated as notionally converted to personalty. For a considerable time English law ignored Continental learning. However, towards the end of the eighteenth century, the English courts became aware through the medium of Scotland1 of civilian doctrines and distinctions. When they decided to accept these doctrines a strange situation came about. For the purposes of the conflict of laws, English courts accepted the distinction between movables and immovables, but for purely domestic purposes they maintained the

old common law distinction between realty and personalty. This situation was inherited by Australia and other common law countries. [page 728] 32.3 As a preliminary question it may be asked whether the distinction between movables and immovables should be relevant in the conflict of laws between common law jurisdictions. In Haque v Haque (No 2)2 Barwick CJ said: The purpose of adopting the division of things into movables and immovables where there is a conflict of laws is to find a common basis of classification with the other system which does not use the English concepts of real and personal property. On this view the classification of things into movables and immovables is not necessarily universal in cases of conflict. There would seem to be little point in placing an asset in a category not in use in either system of law for the purpose of determining the proper law to govern the succession to it where both systems in conflict already employ a classification common to both.

32.4 Whatever the merits of this suggestion it runs counter to the practice of the courts3 and the opinion of most text-writers.4 Even as a matter of principle the suggestion by the learned Chief Justice should be rejected. While the distinction between movables and immovables is an anomaly at a time when land has lost most of its paramount status as a type of property, the common law distinction between real and personal property is even more a relic of English legal history. 32.5 In determining whether a particular right of property is of a movable or immovable character, the domestic division between realty and personalty should not be taken into account. As Barwick CJ said in Haque v Haque (No 2):5 That an asset is personalty for municipal purposes, is not, in my opinion, relevant to the question whether … that asset is a movable or an immovable: nor, in my opinion, are the reasons or doctrines for or by which an asset is treated for municipal purposes as personalty or as realty.

This proposition has been often stated6 but not always observed.7 32.6 The fact that the concepts of movables and personalty, immovables and realty, are not identical does not mean that the distinction between real and personal property can never be relevant in a conflicts case. If, after classification [page 729] of the property involved as a movable or immovable, the appropriate choice-of-

law rule of the forum leads the court to the law of a common law jurisdiction, it may be necessary for the court to inquire whether the property is real or personal in order to apply that law. Thus, if leasehold property of a person dying domiciled in New South Wales were situated in a common law jurisdiction which, however improbably, still retained a difference in devolution between realty and personalty, a New South Wales court would first be referred to the law of that jurisdiction by reason of the classification of leasehold as an immovable and therefore governed by the lex situs. In applying that lex situs, however, the New South Wales court would have to classify the leasehold as personalty and therefore subject to the local rule of devolution relating to personalty.8 32.7 Although the notion of a distinction between movable and immovable property may be universally adopted in both common law and civil law systems, it is unfortunately not the case that all legal systems agree on how specific items of property are to be classified.9 Normally, as we have seen,10 the classification process is a question entirely for the law of the forum. To this policy, the classification of a property right as a movable or immovable is an exception. 32.8 The established rule is that a right of property must be classified as being a movable or immovable according to the lex situs of that property at that time.11 In AMP Society v Gregory,12 Griffith CJ said that the distinction between movables and immovables was primarily a question of fact and not for any law, whether of the situs or of the forum, to determine. This is an overly simplistic view, which ignores the fact that some legal systems annex certain clearly movable things, such as plough horses, title deeds and house keys, to land as immovables. A modified version of this approach has been put forward by Clarence Smith13 who would treat land and any rights therein as immovable by nature and consult the lex situs only in order to determine whether any other rights annexed thereto are to be classified as immovables. This means that even if a foreign legal system classified land as a movable, the forum should ignore it. But if a New South Wales court can treat a fund as an immovable because a statute of the lex situs says it should be treated as ‘land’,14 there is no reason why it should not treat land as a movable if a law of the situs says so. As will be shown later, at 32.11, the statement by Griffith CJ in AMP Society v Gregory does represent the law where the lex situs is English. In Gregory’s case the lex situs was Tasmanian and the High Court treated it, wrongly as it now turns out, [page 730]

to be the same on this point as English law. On this basis the remarks by Griffith CJ were not wrong on the issue actually before him, but were too widely stated. 32.9 Assuming that the lex situs is determinative, the question of where the situs lies must be determined by the lex fori. If the property is tangible this should not give rise to many difficulties. However, if the property is intangible, some serious difficulties can arise at this preliminary stage.15 32.10 If the situs of the property is within an Australian jurisdiction, the court must classify that property according to a law that does not in its domestic aspect know that distinction. As Windeyer J said in Haque v Haque (No 2):16 ‘How, by the law of Western Australia, can things be classified by differentia that the law does not recognise?’. At one level the problem is relatively easy to solve. The test is one of the mobility or otherwise of the physical thing to which the right asserted relates. Thus, as Barwick CJ said in Haque v Haque (No 2):17 ‘Land is by its very nature immovable: and every interest in it must, in my opinion, of necessity be regarded as of the same character or quality’. This means that not only freehold but also leasehold interests in land,18 and a beneficial interest in land held upon trust for sale,19 are immovables. ‘Land’ includes fixtures, such as houses and other improvements. Furthermore, certain items of property, though clearly movable in themselves, are regarded as so bound up with immovable property that they cannot be separated from it and must partake of the same character. In this category fall title deeds to land, the keys to a house and the fish in a pond. On the other hand, as Barwick CJ pointed out in Haque v Haque (No 2):20 ‘Physical objects not attached to land, with some exceptions not presently material, are movables, as must be every proprietary interest in them.’ As the learned Chief Justice goes on to point out, however, difficulties of classification arise when the court is dealing with choses in action such as debts. Such rights ‘have no physical quality that can really be described as movable or immovable. They are concepts: physical mobility is not a quality of the conceptual. But choses in action must be fitted into a scheme of things which requires that they be classified as either movable or immovable’. 32.11 The English courts have taken the view that one must classify as immovables ‘all rights over things which cannot be moved, whatever be the nature of such rights or interests’.21 This has been taken to include not only rights of ownership over

[page 731] land but also incorporeal rights asserted in relation to land such as a debt secured by mortgage on land,22 and a beneficial interest in land held on trust for sale.23 It follows that an English court would treat a claim for the balance of purchase money in respect of the sale of land as an immovable.24 Some Australian courts adopted a similar test. The High Court in AMP Society v Gregory25 held long before the English decision in Re Berchtold 26 that an interest in land held on trust for sale was an immovable. The majority of the High Court based its reasoning on the premise that the substance of the thing in relation to which the right was asserted was land and hence immovable.27 The New South Wales Supreme Court expressly followed Re Hoyles28 in the case of Re Donnelly.29 32.12 However, since then a majority of the High Court in Haque v Haque (No 2)30 has come to accept a test that stresses the nature of the right itself rather than the subject matter of the right. According to this test, where the court has to classify a chose in action which relates to land it is not enough to establish a relation to the land in order to classify it as an immovable, but the right itself must be analysed in order to see which is the primary characteristic: the debt or the relationship to the land.31 Since there is no lack of authority at common law that the primary aspect of a mortgage debt is the debt and not the security over the land,32 it follows that a mortgage debt on this view must be classified as a movable. This approach was not new; it had been adopted quite consistently in a long line of New Zealand and Victorian decisions.33 It has also twice received support in obiter dicta from the former Chief Justice of the High Court, Sir Owen Dixon.34 However, it was not until Haque v Haque (No 2) that this approach received the explicit support of a majority in the High Court.35 [page 732] 32.13 It also follows on the same reasoning that the interest of the unpaid vendor of land in the balance of purchase money is a movable,36 and there is little doubt that a share in a partnership concerning land is also a movable.37 Under the English view the answer to the last question may depend on the type

of property owned by the partnership.38 The origins of this heresy are to be found in two revenue cases: the Irish case of Lawson v The Commrs of Inland Revenue39 and the decision of the Privy Council on appeal from Queensland in Harding v The Commrs for Stamps for Queensland.40 In both cases, mortgage debts were held to be movables for the purposes of revenue statutes. However, that conclusion was reached by express reference to the common law rule that a mortgage debt is personalty, which passes on the death of the deceased to the administrator and not to the heir at law. In both cases, also, the lex fori and not the lex situs was applied to determine the quality of the property.41 As has been pointed out earlier, it is clear that the common law rules relating to the distinction between realty and personalty are not relevant to the classification between movables and immovables. Therefore, the line of New Zealand and Victorian cases which purported to follow these two decisions42 is based on a fundamental error of reasoning, quite apart from the question of whether cases on the situation of assets for the purposes of taxation, which of necessity involve particular concepts of the lex fori, are relevant to the present discussion in any event. 32.14 The majority of the High Court has not only accepted the heresy but expanded it into the new principle stated earlier at 32.12. The inconvenience of this test is twofold. First, it substitutes for a relatively simple test a highly conceptual test that can be answered only by reference to irrelevant matter, that is, the domestic distinction between personalty and realty.43 Second, it can lead to a curious split personality between, say, the mortgage considered as a debt and the same thing considered as a security. In the former aspect the property is a movable according to the Australian view, but in the latter aspect even the majority in Haque v Haque (No 2) conceded it must be treated as an immovable.44 This view can lead to difficulties since different laws can become applicable to different aspects of the same institution. What, for instance, is the position where the mortgagee seeks to assign or dispose of the mortgage interest? Does the legal title go according to the lex situs and the debt according to some other law? Kitto J hints at this possibility which is most untidy, to say the least.45 [page 733]

32.15 It is true that Farwell LJ himself in Re Hoyles46 suggested that the classification between movables and immovables should not be drawn in the abstract but made to depend on the nature of the question asked. There is certainly room for such a functional approach where the interpretation of a statute is involved, as was the case in Re Hoyles. But where the disposition of property is concerned, whether by death or inter vivos, there is much to be said for the simple proposition by Barwick CJ that an interest in land must always be an immovable no matter what the purpose for which it must be classified.47 More recently, McHugh J made a similar generalising statement in Commonwealth v Yarmirr:48 Land is an immovable. Rights and liabilities in respect of land are governed by the legal system operating in the country where the land is situated.

32.16 Finally, it is submitted that the distinction between movables and immovables is archaic, as is the rule that movables follow the person. As we shall see later on, today the basic principle is that the lex situs governs the disposition of property. The application of the lex domicilii to the succession of movables is an anomaly. No purpose is served by widening the category of movables as the High Court did in Haque v Haque (No 2).

The Situs of Property In general 32.17 It may be necessary in proceedings before an Australian court to determine where the situs of property lies. Even though the property right is the creation of foreign law, it is exclusively for the law of the forum to settle its situs.49 Falconbridge lists three cases in which it is important to determine the situs of property.50 32.18 In the first place, it may be necessary to determine whether the property is situated within the jurisdiction for the purpose of probate and the administration of assets in a deceased estate. The old ecclesiastical courts could exercise jurisdiction only to grant probate with respect to personalty that were bona notabilia within the diocese or province. It is in this area that the English rules relating to the situs of property were first developed. Today, issues of jurisdiction are rarely, if ever, raised in probate matters, but the ancient learning can still give us guidance in other fields.51

32.19 In the second place, it may be necessary to determine whether the property is situated within a territory for the purpose of a local revenue statute.52 Such questions belong more properly to the areas of constitutional and revenue law than to the conflict of laws. [page 734] 32.20 In the third place, it may be necessary to determine where a particular item of property is situated for the purpose of applying the conflict rule that assignments (including the giving of mortgages and other securities) inter vivos of both movables and immovables and the succession to, and the administration of, immovables on death are generally governed by the lex rei sitae. 32.21 To these three purposes at least a fourth can be added: it may be necessary to determine where a particular item of property is situated for the purpose of applying the conflict rule that the classification of property as being either of a movable or immovable character depends on the lex situs.53 Indeed, there may even be a fifth purpose which can be sufficiently distinguished from the third; namely the question where a particular item of property is situated for the purpose of applying the conflictual rule that, generally speaking, a foreign expropriation will be recognised as effective in so far as it affects title to property situated within the confiscating state.54 32.22 Are the rules for determining situs the same for all these purposes? To this question the answer must clearly be in the negative.55 For many, and perhaps even most, kinds of property the rules may well be the same, whatever the purpose for which the situs is sought to be established. It is not possible to argue that land or tangible assets have a situation other than the place where they physically are.56 But, as we shall see, some forms of intangible property, notably debts, particularly mortgage debts, and shares, have been held to have different situs depending on the purpose for which that situs was relevant. 32.23 For the purpose of discussion of these rules in more detail a threefold division has been made: interests in land (including incorporeal interests in land); interests in tangible goods; and choses in action (excluding choses in action secured in or over land). It is, of course, impossible to deal with every conceivable kind of property. All that can be attempted is some indication of the general rules.

Interests in land 32.24 As Windeyer J commented in Haque v Haque (No 2): If the thing be land the question of course admits of only one answer. Land is where it lies. It can never be moved. And any interest in or over the land must, it seems, also be considered as a thing having its situs where the land is.57

What about incorporeal rights secured over and attached to the land? As we have seen earlier,58 in Australia some of these incorporeal rights must now be classified as movables despite their connection with land. Nonetheless, for the purposes of their classification, their situs is where the land lies. Thus, Salmond J in Re O’Neill 59 [page 735] held that the classification of a mortgage debt should be determined by the law of the place where the mortgaged land lay, even though he classified the mortgage debt by that law as a movable. In Haque v Haque (No 2) the High Court took a similar view in relation to the interest of an unpaid vendor of land in the balance of the purchase money.60 In Murakami v Wiryadi,61 Spigelman CJ said that it was necessary to refer to the lex situs of immovable property in the first instance, if only to determine whether any special rules of the lex situs applied to dealings with the property, although the claims arising in the matter may be governed by a different law, such as the law governing a marriage contract (see 27.17–27.22). 32.25 As Windeyer J acknowledged in Haque v Haque (No 2),62 the courts have given mortgage debts a different situs for the purpose of construing revenue statutes. Since most cases involved succession duty it was not surprising that the courts followed the practice of the ecclesiastical courts when exercising jurisdiction in probate. According to the practice of these courts, mortgage debts were treated as personal debts rather than interests in land and thus their situs was determined according to the rules applicable to debts generally, whereby specialty debts were regarded as being situated in the place where the deed was kept and simple debts as situated in the place where the debtor resided. This explains a decision such as Commr of Stamps v Hope,63 where the Privy Council held that an old system mortgage created by deed over land in New South Wales was situated in Victoria for probate and stamp duty purposes because the deed

was kept in Victoria at the time of the testator’s death. Conversely, a mortgage registered under Torrens Title over land in New South Wales and not being in the form of a deed at common law was treated by the Privy Council in Payne v R64 as a simple contract debt for Victorian succession duty purposes and hence situated in Victoria where the debtor resided.65 32.26 It is submitted that the taxation and probate cases are also irrelevant where the situs of an incorporeal right in land must be determined for the purpose of the rule that the lex situs governs their disposition. There are no direct authorities on this point, but it is implicit in the remark made by Kitto J in Haque v Haque (No 2)66 that a mortgagee’s interest in mortgaged land may bear the character of an immovable for some purposes, such as the legal validity of a disposition inter vivos or by will. As such the right can be regarded only as situated where the land lies. Indeed, it is hard to see how any law other than the lex situs of the land could be reasonably applied to the transfer of a mortgage.67 [page 736]

Interests in tangible goods 32.27 As Windeyer J said in Haque v Haque (No 2): ‘A chattel, on the other hand, is a movable, and at any given time it is where it then in fact is’.68 This is a simple and straightforward rule which needs no further elaboration. There is no fictional situs of tangible goods even if they have been removed by a thief.69 32.28 A different approach may be called for in relation to chattels whose very function it is to move, such as ships, aircraft and motor vehicles, because the chance location of such chattels would introduce an element of arbitrariness into the court’s analysis.70 In Tisand Pty Ltd v Owners of Ship MV Cape Moreton (Ex Freya),71 a Full Court of the Federal Court of Australia said that there are powerful reasons for giving effect to the law of the country of a ship’s registration as the lex situs in relation to questions of title, property and assignment of ships, but did not find it necessary to express a concluded view on the facts of that case.72 In Thor Shipping A/S v Ship Al Duhail,73 Dowsett J of the Federal Court of Australia expressed his reluctance to apply the law of a newly-built ship’s first registration, Qatari law, to determine whether the act of registration was sufficient to effect a change of ownership of the ship while it was in New Zealand, where it was built. Dowsett J said that he was inclined to

apply the law of New Zealand, the lex situs immediately before first registration, to determine whether registration was effective to transfer title, but in any event found it unnecessary to decide the point for other reasons.74 In contrast, in The WD Fairway,75 Tomlinson J of the English High Court said that the place of registration is ‘often a most artificial situs’, with the result that questions of legal title should be determined by reference to the law of the place of registration, but interests falling short of legal ownership should not.76 Nevertheless, there is much to be said for application of the law of registration and not much to be said for any other alternative, at least in relation to ships already built and operating, for which transactions relating to ownership, mortgages and demise charters must be recorded on the ship’s register. Dowsett J’s caution in Thor Shipping should be confined to cases of first registration, which converts an object in the process of becoming a ship into a ship. The law of registration is one of the few constants for a movable as movable as a ship, which may end up in a situs that is [page 737] entirely fortuitous. In a later stage of the WD Fairway litigation,77 Tomlinson J of the English High Court applied the lex situs of the ship, Thai law, in preference to the law of the ship’s registration, the Netherlands, although the only connection with Thailand was that the ship had been towed there after a collision off the coast of China, and was there declared a constructive total loss. In Euroceanica (United Kingdom) Ltd v The Ship Gem of Safaga (as surrogate for the ships JBU Opal and JBU Onyx),78 Rares J of the Federal Court of Australia considered whether to apply Indian law as the law of registration of a ship, using the Tisand approach, before concluding that it was unnecessary finally to decide the issue on the facts of the case and the evidence of Indian law. In reversing Rares J’s decision on appeal,79 a Full Court of the Federal Court also found it unnecessary (once again) to express a concluded view on this issue, which is surely by now ripe for decision one way or the other. 32.29 Similar problems may also arise in relation to goods in transit on the high seas. Such goods are represented by the bill of lading or other sea-carriage document (such as a sea waybill) issued by the carrier when the goods are accepted for carriage. By the ‘custom of merchants’,80 the goods may be bought, sold or pledged by dealing with a negotiable bill of lading.81 It follows that their

notional situs should be that of the bill of lading, not the ship on which the goods are being carried.82 32.30 In Daebo Shipping Co Ltd v Ship Go Star,83 Siopis J in the Federal Court applied Australian law to determine the ownership of bunkers (fuel oil) pumped onto a Chinese-registered ship pursuant to a charterparty governed by English law. There was no attempt by either party to argue that Chinese law was the lex situs to be applied to the relevant claim, which was in conversion and detinue.84 When considering the question of ownership of the bunkers on appeal, a Full Court of the Federal Court cited many English cases about the effect of the charterparties of the kind under which the bunkers had been delivered, before concluding: This conclusion makes it unnecessary to resolve the issue raised by the owners as to the passing of title under the law of China. Indeed, in any event, the clean recap [the relevant contractual document in relation to the charterparty] provided that English law applied to its provisions, so that the contractual position as to ownership of the bunkers … depended on the English law principles applied above.85

With respect, this apparent rejection of the lex situs in relation to ownership of movable tangibles such as bunkers cannot be regarded as thoroughly reasoned. If, as the Tisand case suggests (see 32.28), there are good reasons for regarding the law [page 738] of the place of a ship’s registration as the lex situs in relation to questions of title, property and assignment of the ship itself, it does not seem obvious that that place of registration should be ignored when it comes to considering the ownership of the bunkers that propel the ship’s engines. It may make eminent sense for title to goods provided pursuant to a contract to pass according to the proper law of that contract, or even, in the case of charterparty contracts, by some transnational ‘law of charterparties’, but it is not self-evidently correct.

Choses in action 32.31 As Windeyer J commented in Haque v Haque (No 2): When we go from the field of corporeal things, lands and chattels, and rights and interests related to them, to purely incorporeal things, questions of situs become artificial. Such things can have no actual place anywhere. But law for its own purposes puts all its incorporeal creatures in their proper

places.86

Windeyer J went on to point out that the basic rules in this regard were developed by the English ecclesiastical courts for their own jurisdictional purposes. These ready-made rules were adopted by the common law courts once they began to develop the principles of conflicts law at the end of the eighteenth century. 32.32 In general, the traditional rules hold good whatever the purpose for which the situs is sought to be established. They have since then been elaborated and extended. As Pearson J said in Jabbour v Custodian of Absentee’s Property of State of Israel:87 It is established by the decided cases that not only debts, but also other choses in action, are for legal purposes localised, and are situated where they are properly recoverable and are properly recoverable where the debtor resides.

This means, as Pearson J pointed out, that a claim for damages is localised where the defendant resides and that a claim for payment under a policy of insurance is situated where the insurance company resides. 32.33 This ancient rule has been explained on the basis that a right of action is situated in the place where it can most effectively be enforced. In Assetinsure Pty Ltd v New Cap Reinsurance Corp Ltd (in liq),88 Kirby and Hayne JJ said: For present purposes, the common law principles of conflict of laws locating a liability can be assumed to be sufficiently summarised as follows. A debt is generally situated where the debtor resides. If a debtor has two or more places of residence and the creditor stipulates for payment at one of those places, the debt will be situated there. If a debtor has more than one place of residence, but there is no express or implied promise to pay at one of them, the debt will be situated where it would be paid in the ordinary course of business.

Thus, in the case of international corporations that have a head office in one country and branches in others, it has been held that a debt payable by such a company is [page 739] situated at the branch where it has promised to pay.89 This principle was elaborated upon by Pearson J in Jabbour v Custodian of Absentee’s Property of State of Israel90 in the following terms:91 Where a corporation has residence in two or more countries the debt or chose of action is properly recoverable and therefore situated in that one of those countries where the sum payable is primarily

payable and that is where it is required to be paid by an express or implied provision of the contract or, if there is no such provision, where it would be paid according to the ordinary course of business.

Since it is possible, though less likely, for an individual to have more than one residence, there is no reason to confine this principle to corporations.92 32.34 Today, it is possible to invoke the jurisdiction of Australian courts in matters of contract even though the debtor resides abroad and has no residence in Australia.93 Thus, the fact that a foreign debtor stipulated to pay a debt somewhere in Australia would be sufficient ground in itself for the court in the place of payment to exercise jurisdiction. Should the old rule about the situs of a debt be extended to take account of the new jurisdictional bases? In New York Life Insce Co v Public Trustee94 Atkin LJ adverted to this problem without answering it, also suggesting that a debt might have more than one situation. It must be obvious that in order to apply the choice-of-law rules relating to the disposition of property, there can be only one situs. Thus, a proposition that for general conflictual purposes a debt is situated wherever the debtor can be sued under the local rules of jurisdiction is clearly too broad. It would, however, be more appropriate to apply that rule in cases where a debtor (at least a corporate debtor) can be found in any of the eight Australian jurisdictions. 32.35 There is more merit in the suggestion that, where the debtor agrees to pay in a country other than that of the residence, the debt is situated in the agreed place of payment. Unfortunately, the courts have not accepted this proposition in cases where the debtor has no residence in the place of payment. Thus, in The Will of Currie,95 a revenue case, a Full Court of the Supreme Court of Victoria held that a simple contract debt was situated in New South Wales where the debtor resided and not in Victoria where he did not reside but had promised to pay. In Re Helbert Wagg & Co,96 an expropriation case, Upjohn J held that a debt owed by a German company and payable in London could only be situated in Germany in the absence of any residence of the debtor in England. It is noteworthy also that when Kirby and Hayne JJ summarised the common law position in Assetinsure Pty Ltd v New Cap [page 740] Reinsurance Corp Ltd (in liq),97 they confined themselves to cases where the debtor has a place of residence in the place where payment is to be made. 32.36 The situs of a charge created by statute in favour of a person injured by

the insured on a policy of insurance, has been held to be the place where in the normal course of business payment of the claim would be expected to be made. If the insurer has a head office and several branches, the branch in the place where the insured resides is presumed to be the relevant place.98 32.37 A share in the unadministered estate of a deceased person is nothing more than a claim against the legal personal representative to have the estate wound up and distributed. Hence, it is situated in the place where the legal personal representative resides.99 If the estate is fully administered and assets are appropriated to the account of the beneficiary, the interest of the beneficiary is in the assets so appropriated, even if there is no legal assignment and the situs is that of the particular asset.100 It has been held that a share in a partnership is situated for revenue purposes in the place where the partnership carries on business.101 In Haque v Haque (No 2)102 Windeyer J applied the same principle to the determination of the situs of a partnership share for the purposes of classifying it as an immovable or movable. If the business is land, then the situs may well be the place where the land is situated.103 32.38 A patent granted under the Patents Act 1990 (Cth) must be regarded as being situated in Australia104 and a foreign patent in the country where it was registered;105 the same principle applies to trade marks106 and copyright.107 32.39 Government bonds are treated as specialties and are situated where they are kept. However, if they are only transferable on a register the analogy with shares applies and, at least for revenue purposes, they are situated where the register is [page 741] kept.108 A policy of insurance is also a specialty and thus situated where the policy is kept.109

Negotiable instruments 32.40 It was suggested by Lord Abinger CB in AG v Bouwens110 that negotiable instruments have their situation where the debtor resides. That may well be true for the purposes of probate jurisdiction and taxation. However, for reasons stated elsewhere in this book,111 the better opinion is that for the purposes of both voluntary and involuntary assignments the situation of such

instruments is the place where at the relevant time the physical document is situated.112 32.41 The situs of a letter of credit has been held to be in the place where it is in fact payable against documents,113 although that rule seems far from satisfactory in the case of unconfirmed letters of credit, where the debt is owed by the issuing bank but payment is usually made by a nominated bank in another country acting only as agent for the issuing bank. To hold that the issuing bank’s obligation is situated in the country where payment is to be made on its behalf by the nominated bank is to hold that the debt is situated where payment is to be made, even though the debtor is not resident there, which is inconsistent with (or at least an exception to) the cases mentioned above, at 32.35.

Shares in companies 32.42 Although shares in a company may be (but nowadays seldom are) represented by a physical document—a share certificate—the share itself is an abstract, intangible, right-duty relationship that has no actual physical location.114 As a result, the situs of ordinary shares is generally held to be the place of incorporation of the issuing company or the place where the share register is kept, rather than the physical location of the share certificate (if there is one).115 In Macmillan Inc v Bishopsgate Investment Trust plc (No 3),116 members of the English Court of Appeal expressed slightly diverging views on the question of where ordinary shares are situated. Staughton LJ said that in the ordinary course of things (that is, unless the shares are negotiable instruments) shares are situated where the company is incorporated, although there may be cases where it is the law of the place where the [page 742] share register is kept.117 Conversely, Auld LJ said that the situs of ordinary shares will normally be the country where the register is kept, usually but not always the country of incorporation.118 After an extensive review of Canadian and American authority, Aldous LJ concluded without reservation that the situs of ordinary shares is the place of incorporation.119 In the modern era, when trading in shares is usually done electronically on several different registers, and when paper share certificates are the exception rather than the rule, there is much

to commend the simplicity and certainty of a rule that the situs of ordinary shares is the place of incorporation. 32.43 In Braun v The Custodian,120 Thorson J, President of the Exchequer Court of Canada, said: It is a sound rule of law that the situs of shares of a company for the purpose of determining a dispute as to their ownership is in the territory of incorporation of the company, for that is where the Court has jurisdiction over the company in accordance with the law of its domicile and power to order a rectification of its register, where such rectification may be necessary, and to enforce such order by a personal decree against it. It is at such a place that the shares can be effectively dealt with by the court.

Thus, if the situs for shares is that of the place of incorporation, that is so because of the fact of control of the issuing corporation.121 If the company concerned has established more than one register on which the transfer can be noted, the shares are situated at the register in which the shares as a matter of business practice could effectively be dealt with.122 32.44 Negotiable or bearer shares are an exception. Because they are negotiable instruments, their situs is where the pieces of paper constituting the negotiable instruments are at the time of the transfer.123 These principles have been applied in Australia in revenue cases.124 32.45 In addition to being evidence of entitlement to membership in the company, a negotiable share document (when there is one) is also a valuable document in itself which can be pledged or mortgaged. If a question were to arise as to who was entitled to possession of the certificate, as opposed to the question of registration as an owner, the certificate would, as in the case of a negotiable instrument, be treated as a tangible chattel which is situated in the place where it is kept.125 32.46 In the case of so-called ‘immobilised securities’ that are registered on a database maintained by an intermediary, on which assignments of interests are recorded without moving the underlying securities themselves, the situs of any [page 743] interest in such security may be regarded as the place where the clearing house or other intermediary has its seat or principal establishment, and not the place where the document (if any) evidencing such interest happens to be from time to time. Under the system of indirect holding of securities, traders in the security

interests have a relationship with the account registered on the database of the intermediary and not with the original issuer of the security.126 Accordingly, the Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary 2006 wisely dispenses altogether with the concept of situs of shares and other securities, preferring the Place of the Relevant Intermediary Approach or PRIMA.127 Nevertheless, only two countries, Mauritius and Switzerland, have adopted this sensible rule by ratifying the Convention,128 which means that the Convention is not yet in force.129 Although there is no functional difference between PRIMA and a rule that declares the situs of securities to be the place where the intermediary is to be found, the insistence on finding a situs for dematerialised securities is anachronistic and should be discarded.130 _________________________ 1.

See A E Anton, ‘The Introduction into English Practice of Continental Theories in the Conflict of Laws’ (1956) 4 ICLQ 534. According to Clarence Smith, ‘Classification by the Site in the Conflict of Laws’ (1963) 26 Mod LR 16, it was not until 1873 that the distinction between movables and immovables was accepted in English law.

2.

(1965) 114 CLR 98 at 109.

3.

In England: Freke v Lord Carbery (1873) LR 16 Eq 461; Re Cutliffe’s Will Trusts [1940] Ch 565. In Canada: Re Hole Estate [1948] 4 DLR 419. In Australia: Re Ralston [1906] VLR 689; Re Williams [1945] VLR 213. It may be that in the last mentioned two cases the judges, while using the term ‘movables’, really meant ‘personalty’ since they invoked the common law to define as ‘movables’ what at common law was personalty.

4.

See Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012, pp 1280–12; A H Robertson, Characterisation in the Conflict of Laws, Harvard University Press, Cambridge, MA, 1940, p 201; and J D Falconbridge, Essays on the Conflict of Laws, 2nd ed, Canada Law Book Co, Toronto, 1954, pp 540, 541. The contrary position is championed by R H Graveson, Conflict of Laws, 7th ed, Sweet & Maxwell, London, 1974, p 47.

5.

(1965) 114 CLR 98 at 115.

6.

Freke v Lord Carbery (1873) LR 16 Eq 461; Re Hoyles [1911] 1 Ch 179 at 187; Re O’Neill [1922] NZLR 486; Re Berchtold [1923] 1 Ch 192 at 206 per Russell J; AMP Society v Gregory (1908) 5 CLR 615 at 624 per Griffith CJ; Commissioner of Taxation v Lamesa Holdings BV (1997) 77 FCR 597 at 606 per Burchett, Hill and Emmett JJ; Re Varley (deceased) [2007] SASC 420 at [8] per Debelle J.

7.

See, for example, Murakami v Wiryadi (2010) 268 ALR 377 at 395 (‘Real property has always been treated specially in the conflict of laws because it is essential to acknowledge the capacity of the lex situs to render futile any conflicting law with respect to title to such property.’).

8.

Duncan v Lawson (1889) 41 Ch D 394.

9.

See Clarence Smith, ‘Classification by the Site in the Conflict of Laws’ (1963) 26 Mod LR 16 at 18.

10. See Chapter 14. 11. AMP Society v Gregory (1908) 5 CLR 615 at 636–7 per Isaacs J; Re Hoyles [1911] 1 Ch 179 at 186 per Farwell LJ; Re Crook (1936) 36 SR (NSW) 186; Re Williams [1945] VLR 213 at 223 per O’Bryan J; Haque v Haque (No 2) (1965) 114 CLR 98 at 139 per Windeyer J; Re Varley (deceased) [2007] SASC

420 at [8] per Debelle J. 12. (1908) 5 CLR 615 at 624. 13. See Clarence Smith, ‘Classification by the Site in the Conflict of Laws’ (1963) 26 Mod LR 16. 14. Re Crook (1936) 36 SR (NSW) 186. 15. See the discussion by O’Bryan J in Re Williams [1945] VLR 213 at 223; and in Haque v Haque (No 2) (1965) 114 CLR 98 at 107 per Barwick CJ, at 136–9 per Windeyer J. 16. (1965) 114 CLR 98 at 139. 17. See note 16 at 107. 18. Freke v Lord Carbery (1873) LR 16 Eq 461; Re Varley (deceased) [2007] SASC 420 at [8] per Debelle J. 19. Re Berchtold [1923] 1 Ch 192. 20. (1965) 114 CLR 98 at 107. 21. Dicey, The Conflict of Laws, Sweet and Maxwell, 2nd ed, 1908, p 76, cited by Cozens-Hardy MR in Re Hoyles [1911] 1 Ch 179 at 183. See also statements by Barwick CJ in Haque v Haque (No 2) (1965) 114 CLR 98 at 119 and by Windeyer J at 136. 22. Re Hoyles [1911] 1 Ch 179. 23. Re Berchtold [1923] 1 Ch 192; Gregg v Perpetual Trustee Co (1918) 18 SR (NSW) 252. Once the land is sold the proceeds are movables: Re Piercy [1895] 1 Ch 83. 24. Haque v Haque (No 2) (1965) 114 CLR 98 at 121 per Barwick CJ; Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012, p 1331. See also Re Bourke [1928] 1 DLR 318. 25. (1908) 5 CLR 615. 26. [1923] 1 Ch 192. 27. (1908) 5 CLR 615 at 624 per Griffith CJ, at 632 per Barton J. 28. [1911] 1 Ch 179. 29. (1927) 28 SR (NSW) 34. 30. Consisting of Kitto, Menzies and Owen JJ, Windeyer J agreeing in some respects, Barwick CJ dissenting. 31. See also Cussen J in Re Ralston [1906] VLR 689 at 694; Kitto J in Haque v Haque (No 2) (1965) 114 CLR 98 at 127. 32. See the cases mentioned by Windeyer J in Haque v Haque (No 2) (1965) 114 CLR 98 at 141–2. 33. See Re Ralston [1906] VLR 689; Re Young [1942] VLR 4; Re Williams [1945] VLR 213; Re O’Neill [1922] NZLR 468. 34. See McLelland v Trustees Executors and Agency Co Ltd (1936) 55 CLR 483 at 493; Livingston v Commr of Stamp Duties (Q) (1960) 107 CLR 411 at 421. 35. Though Windeyer J reluctantly expressed his concurrence with the principle established in the Victorian and New Zealand cases, his preferred approach was closer to that of Barwick CJ and the English cases. 36. Haque v Haque (No 2) (1965) 114 CLR 98. 37. See note 36. 38. See note 36 at 122 per Barwick CJ, at 148 per Windeyer J.

39. [1896] 2 Ir R 418. 40. [1898] AC 769. 41. See Lawson v The Commrs of Inland Revenue [1896] 2 Ir R 418 at 435–6 per Palles CB; Harding v The Commrs for Stamps for Queensland [1898] AC 769 at 770–1 in arguendo. See the comments by Barwick CJ in Haque v Haque (No 2) (1965) 114 CLR 98 at 112–4, and Windeyer J at 145. 42. Re Ralston [1906] VLR 689; Re Young [1942] VLR 4; Re Williams [1945] VLR 213; Re O’Neill [1922] NZLR 468. 43. (1965) 114 CLR 98 at 147–8 per Windeyer J. 44. See note 43 at 128 per Kitto J, at 133 per Menzies J. 45. See note 43 at 128–9 per Kitto J. 46. [1911] 1 Ch 179 at 187. 47. (1965) 114 CLR 98 at 119–20. 48. (2001) 200 CLR 1 at 99, at [207]. 49. Rossano v Manufacturers Life Insce Co [1963] 2 QB 352 at 379, 380 per McNair J. 50. See J D Falconbridge, note 4, 1954, p 485. 51. Haque v Haque (No 2) (1965) 114 CLR 98 at 137 per Windeyer J. 52. For example, Chief Commissioner of Stamp Duties v Paliflex Pty Ltd (1999) 47 NSWLR 382. 53. See 32.8. See, for example, Macmillan Inc v Bishopsgate Trust plc (No 3) [1996] 1 All ER 585 at 597. 54. See 18.22–18.24. 55. See J D Falconbridge, note 4 above, 1954, p 486; Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012, p 1286. 56. Winkworth v Christies Ltd [1980] Ch 496 at 509 per Slade J. 57. (1965) 114 CLR 98 at 136. 58. See 32.12–32.14. 59. [1922] NZLR 468. 60. (1965) 114 CLR 98 at 139 per Windeyer J; see also Barwick CJ at 121 and Kitto J at 128. 61. (2010) 268 ALR 377 at 395. See also Piatek v Piatek (2010) 245 FLR 137 at 159–60 per Douglas J. 62. (1965) 114 CLR 98 at 138. 63. [1891] AC 476. 64. [1902] AC 552. 65. But contrast the Privy Council decision on appeal from Canada in Toronto General Trust Corp v R [1919] AC 679 where a mortgage registered under Torrens title was held to be situated for stamp duty purposes in Alberta where the land lay and one copy of the mortgage had been enrolled in the local land registry, rather than in Ontario where the mortgagee resided and where he kept a duplicate copy of the mortgage. 66. (1965) 114 CLR 98 at 128–9. 67. See also Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012, pp 1330–1. 68. (1965) 114 CLR 98 at 136.

69. Winkworth v Christie’s Ltd [1980] Ch 496 at 509 per Slade J. See, for example, Kuwait Airways Corp v Iraqi Airways Co (No 3) [2001] 1 All ER (Comm) 557. 70. Tisand Pty Ltd v Owners of Ship MV Cape Moreton (Ex Freya) (2005) 143 FCR 43 at 79; 219 ALR 48 at 79–80, at [146] per Ryan and Allsop JJ. 71. (2005) 143 FCR 43; 219 ALR 48. 72. (2005) 143 FCR 43; 219 ALR 48 at FCR 79–80,ALR 79–80 at [146]–[148] per Ryan and Allsop JJ. The third member of the Full Court, Cooper J, died after hearing argument but before judgment was given. (2005) 143 FCR 43; 219 ALR 48 at FCR 48–9, ALR 49 at [4] per Ryan and Allsop JJ. The parties agreed to the remaining two members dealing with the matter as the Full Court: FCR 48–9, ALR 49 at [4], citing Federal Court of Australia Act 1976 (Cth) s 14(3). 73. [2008] FCA 1842. 74. [2008] FCA 1842 at [51]. 75. [2009] 2 Lloyd’s Rep 191. 76. [2009] 2 Lloyd’s Rep 191 at 223, [103]. 77. Dornoch Ltd v Westminster International BV [2009] 2 CLC 226. 78. (2009) 182 FCR 1; 263 ALR 68. 79. Ship Gem of Safaga v Euroceanica (United Kingdom) Ltd (2010) 182 FCR 27; 265 ALR 88. 80. Lickbarrow v Mason (1794) 5 TR 683 at 685; 101 ER 380 at 382. 81. Hilditch Pty Ltd v Dorval Kaiun KK (No 2) (2007) 245 ALR 125 at 132, at [22] per Rares J. 82. Inglis v Robertson [1898] AC 616 at 626 per Lord Watson; Hardwick Game Farm v Suffolk Agricultural and Poultry Producers Assn [1969] 2 AC 31 at 86–7 per Lord Reid, at 101 per Lord Morris, at 120 per Lord Pearce, at 128 per Lord Wilberforce. 83. (2011) 283 ALR 255. 84. (2011) 283 ALR 255 at 265, [58] per Siopis J. 85. (2012) 294 ALR 635 at 653 per Keane CJ, Rares and Besanko JJ. 86. (1965) 114 CLR 98 at 136. 87. [1954] 1 All ER 145 at 146. See also Australian Public Trustees Ltd (recs apptd) (in its capacity as trustee and/or responsible entity of Government Property Trust No 5) v Australian Public Trustees Ltd (recs apptd) (in its capacity as trustee and/or responsible entity of Government Property Trust No 3) (2012) 81 ACSR 236 at [32] per Sifris J. 88. (2006) 225 CLR 331 at 352; 226 ALR 1 at 16, at [58]. 89. New York Life Insce Co v Public Trustee [1924] 2 Ch 101. 90. [1954] 1 All ER 145 at 146. 91. See also Pick v Manufacturers Life Insce Co [1958] 2 Ll Rep 93; Rossano v Manufacturers Life Insce Co [1963] 2 QB 352; Kwok v Commr of Estate Duty [1988] 1 WLR 1035. 92. Haque v Haque (No 2) (1965) 114 CLR 98 at 137 per Windeyer J. 93. See generally Chapter 3. 94. [1924] 2 Ch 101 at 119. 95. (1899) 25 VLT 224. 96. [1956] Ch 232.

97. (2006) 225 CLR 331 at 352; 226 ALR 1 at 16, at [58], quoted at 32.33. See also New Cap Reinsurance Corp (in liq) v Faraday Underwriting Ltd (2003) 47 ACSR 306 at 322–3 per Windeyer J, suggesting that the rule can only apply if the debtor has an office or business in the place where payment is to be made. 98. Cambridge Credit Corp (In liq) v Lissenden (1987) 8 NSWLR 411; Dixon v Royal Insce Australia Ltd (1991) 105 ACTR 1. 99. McCaughey v Commr of Stamp Duties (1945) 46 SR (NSW) 192; Commr of Stamp Duties for Queensland v Livingston [1965] AC 694 at 717. 100. Perpetual Trustee Co v Commr of Stamp Duties (NSW) [1977] 2 NSWLR 472. 101. Commr of Stamp Duties v Salting [1907] AC 449. 102. (1965) 114 CLR 98 at 139. 103. See note 102. 104. McCaughey v Commr of Stamp Duties (1945) 46 SR (NSW) 192 at 201 per Jordan CJ; Re Usines de Melle’s Patent (1954) 91 CLR 42 at 48 per Fullagar J. 105. Tritech Technology Pty Ltd v Gordon (2000) 48 IPR 52; Glueck v Stang (2008) 76 IPR 75. Because of the rather dubious analogy between intellectual property rights and immovables, a finding that a patent is situated outside Australia means that an action to determine rights in or title to foreign patents lies beyond the jurisdiction of the court by operation of the Moçambique rule in those jurisdictions that retain it: see Potter v Broken Hill Pty Co Ltd (1906) 3 CLR 479 and Coin Controls Ltd v Suzo International (United Kingdom) Ltd [1999] Ch 33. For the Moçambique rule and its exceptions see Ch 3. 106. Lecouturier v Rey [1910] AC 262 at 273. 107. Novello & Co v Hinrichsen Edition Ltd [1951] Ch 595 at 604 per Wynn-Parry J. 108. Bankers and Traders Insce Co Ltd v FCT (1946) 73 CLR 39 at 46 per Dixon J; Atkinson Footwear Ltd v Hodgskin International Services Ltd (1994) 31 IPR 186; TS Production LLC v Drew Pictures Pty Ltd [2008] FCAFC 194 at [16] per Finkelstein J. 109. Re Young [1924] SASR 187. 110. (1838) 4 M & W 171 at 191–2; 150 ER 1390 at 1398. 111. See 22.20–22.26. 112. See J D Falconbridge, note 4 above, 1954, pp 489–90; Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012, pp 2091–4. 113. Power Curber International Ltd v National Bank of Kuwait SAK [1981] 3 All ER 607 at 612 per Lord Denning MR. 114. Maisie Ooi, Shares and Other Securities in the Conflict of Laws, Oxford University Press, Oxford, 2003, p 14, [2.04]. 115. Brassard v Smith [1925] AC 541 (succession duty); Estate of Hunt v R (1968) 67 DLR (2d) 373 (judicial execution). 116. [1996] 1 All ER 585. 117. See note 116 at 602 per Staughton LJ. 118. See note 116 at 608 per Auld LJ. 119. See note 116 at 617–20 per Aldous LJ. Aldous LJ’s view was cited with approval by the Administrative Appeals Tribunal in Re Taxpayer and FCT (2005) 58 ATR 1172 at 1179, at [38].

120. [1944] 3 DLR 412 at 428, affirmed [1944] 4 DLR 209. 121. M Ooi, note 114 above, 2003, p 15, [2.08]. 122. R v Williams [1942] AC 541. 123. AG v Glendining (1904) 92 LT 87; Macmillan v Bishopsgate Investment Trust plc (No 3) [1996] 1 WLR 387 at 411 per Auld LJ. 124. See McCaughey v Commr of Stamp Duties (1945) 46 SR (NSW) 192 at 201 per Jordan CJ; Re Murphy [1951] SASR 28; Myer Emporium Ltd v Commr of Stamp Duties [1967] 2 NSWR 230 at 234 per Wallace P, at 241–5 per Walsh JA. 125. Colonial Bank v Cady (1890) 15 App Cas 267. 126. M Ooi, note 114 above, 2003, Ch 6; J Benjamin, ‘Determining the Situs of Interests in Immobilised Securities’ (1998) 47 ICLQ 923. 127. Text available at the website of the Hague Conference on Private International Law (last visited 19 March 2013). 128. See the status table at (last visited 19 March 2013). 129. The Convention requires three instruments of ratification, acceptance, approval or accession: see Art 19(1). 130. M Ooi, note 114 above, 2003, Ch 7.

[page 744]

Chapter 33

Transactions Between Living Persons General Principles 33.1 For a long time land has occupied a special position. In the Middle Ages land was the only type of property worth worrying about. Compared to it, chattels were of much less importance. They were said to ‘follow the person’ of the owner either because in a literal sense they did or because of the lingering effect of an earlier system of personal laws. Thus, until relatively recent times, the distinction between movable and immovable property was a vital one not only in the area of succession on death, where it still prevails, but also in the field of transactions between living persons. 33.2 Today some of the old predominance of land still lingers, partly for historical reasons and partly for psychological reasons. Yet, so far as transactions between living persons are concerned at any rate, there is little reason to draw a distinction between land and other forms of property. On the one hand, land has lost much of its ancient pre-eminence and must now take its place as a form of commercial property like any other. On the other hand, the law now recognises that a chattel, even an intangible chattel, can have a situs that differs from the place of residence of its owner. Since, however, history is still strong enough to dictate differences, this chapter has been subdivided to deal with the topic in three distinct categories: immovables, chattels and intangibles. 33.3 Nevertheless, some general remarks can be made. There is a tendency to favour the lex situs as the law governing the validity of an assignment of property. This has always been true of immovables, but it has now been accepted in relation to most dealings affecting chattels, as we shall see. Even in relation to intangibles, the lex situs has found some acceptance. 33.4 In 2009, the Personal Property Securities Act was passed by the

Commonwealth Parliament. The Act created a single national online register of personal property securities and repealed all of the many Commonwealth, state and territory Acts regulating security interests in particular types of property. Chapter 7 of the Act contains choice of law rules governing security interests in personal property. Like this chapter, Chapter 7 distinguishes between goods and intangible property. [page 745]

The distinction between contract and assignment 33.5 It is necessary to distinguish between contract and conveyance.1 While the validity of an assignment as such is governed by the lex situs, this may not be true of the contract of which the assignment is a part. In some cases the contract can be clearly separated from the assignment. Thus, in Australia a contract for the sale of land is usually followed by the execution of a conveyance. But more frequently the contract and the assignment are part of the same transaction, such as a contract for the sale of chattels or, frequently, a mortgage or lease of land. In both cases the contractual aspects of the transaction may be valid by one law and void by the other. 33.6 Where contract and assignment are bound up together in the same transaction, the contractual aspect, even though governed by a different law, cannot stand alone if the assignment is void under the lex situs. This is illustrated by the early New South Wales case of Johnson v Billyard,2 where a person resident and domiciled in New South Wales granted in Sydney a 21-year lease of land in Fiji to another person, also resident and domiciled in New South Wales. When the lessor sued the lessee for failure to pay rent, the lessee pleaded that under the law of Fiji, leases for a period of more than one year were void unless registered and that the lease had not been registered. A Full Court of the Supreme Court of New South Wales held that the lex situs determined the method in which an interest in land should pass. Since under the law of Fiji nothing had passed for want of registration, the lease was void. Though the governing law of the lease considered as a contract was that of New South Wales, the enforceability of the covenant to pay rent could not be separated from the question of the validity of the lease itself. Thus, the action of the plaintiff for the arrears of rent failed.

33.7 Should there be the same result in the converse situation, where the transaction is void as a contract under its proper law, but effective as an assignment under the lex situs? The answer is probably in the negative. An assignment that is effective by the lex situs gives rise to a good title which can be defended against everybody except a party to the original transaction. Thus, in Gregg v Perpetual Trustee Co Ltd,3 a woman executed a marriage settlement in New South Wales which was presumably governed by the law of that state, whereby she settled her interest in certain land situated in Queensland. Under the law of Queensland she had the capacity to do so but under the law of New South Wales, which was her domicile, she lacked capacity. When her daughter, after her mother’s death, challenged the validity of this settlement, Harvey J upheld the title of the trustee by reference to the law of Queensland as the lex situs of the property. But, as between the parties to the marriage settlement, it might have been possible to assert equities between them as a result of the nullity of the transaction.4 [page 746] 33.8 If the contract and the assignment are both valid under their respective applicable laws, or if the contract to assign is separate from the assignment, a distinction must be drawn between the rights of the parties as between themselves and the question of title to the property concerned.5 As regards third parties, what title has passed, or shall pass, between them is also for the lex situs to determine, but the question of what obligations they bear towards each other is a matter for the proper law of the contract. The latter will include questions such as liability in damages for breach of contract, excuses for non-performance and discharge.6 If the enforcement of the obligations is suspended by moratorium legislation, it is the proper law of the contract and not the lex situs as such that is relevant.7 33.9 Indeed, the very question which of two parties is entitled to have the property assigned or re-assigned is a question for the proper law of the contract. As Cozens-Hardy MR said in British South Africa Co v De Beers Consolidated Mines Ltd:8 In my opinion an English contract to give a mortgage on foreign land, although the mortgage has to be perfected according to the lex situs, is a contract to give a mortgage which—inter partes—is to be treated as an English mortgage and subject to such rights of redemption and such equities as the law of England regards as necessarily incident to a mortgage.9

33.10 Conversely, if by the proper law of the contract the obligation to reconvey property mortgaged or deposited is suspended (without affecting the title to that property) the courts of the situs must deny the owner the recovery of that property even though, by the domestic law of the situs, he or she would be entitled to immediate possession.10 33.11 Such a split between the proper law of the contract and the lex situs can often give rise to difficulties. The early case of Re Courtney; Ex parte Pollard11 is a good example of the confusion that sometimes has beset judges when trying to distinguish between the effects of a land transaction inter partes and the effects in rem. In that case, a person who later went bankrupt had purported to give a creditor a secured interest in Scottish land by deposit of the title deeds. Under the law of Scotland a deposit of the title deeds was ineffective to create a secured interest in land. Lord Cottenham LC, however, held that the agreement, though not operative in rem, [page 747] was operative in personam, and that accordingly the creditor had as regards the bankrupt, the status of a secured creditor. His Lordship overlooked, it is submitted, that the granting of secured status to this creditor did not really affect the bankrupt, but gave the creditor preference over other creditors.12 33.12 In relation to contracts dealing with immovables there is, generally speaking, a presumption in favour of the lex situs.13 This presumption, like all other presumptions, may be rebutted by express declaration to the contrary or other clear indicators; for example, an arbitration clause.14 In relation to chattels, however, this presumption cannot be applied. There is often a difference between the proper law and the situs. Indeed, there is a tendency in that area, as we shall see,15 to argue that the proper law and not the lex situs should determine the validity of the assignment. 33.13 The Personal Property Securities Act 2009 (Cth) preserves the distinction between the law governing the property aspects of a transaction and the law governing the contract. Section 234(1) of the Act provides that the law specified by the Act ‘governs the validity, perfection and effect of perfection or nonperfection of the security interest’, but s 234(2) provides that ‘this Part does not affect the law that governs contractual obligations (including any obligations arising under a security agreement)’.

Immovables 33.14 As regards third parties, the lex situs of the land determines who has title and what the extent of that title is. Despite the decision in Re Courtney; Ex parte Pollard,16 the rights of a party to a transaction concerning an immovable as regards third parties are determined exclusively by the lex situs.17 33.15 As between the parties to the transaction themselves, the lex situs is relevant in certain respects. As Rich and Dixon JJ said in Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd:18 ‘Performance of the vendor’s obligations is necessarily governed by the lex situs, which determines what is his title to the immovable and how he may convey it’. 33.16 As to the vendor’s title, it is clear that any dispute concerning the title to convey can be settled only by the lex situs. The question of what interest a vendor can [page 748] convey also must necessarily depend on the lex situs.19 The manner of conveyance too must depend on the lex situs, both as to form and as to procedure.20

Capacity to convey an immovable 33.17 It has been said that the capacity to enter into a contract dealing with immovables is governed by the lex situs.21 This proposition requires some qualification. Of course, the capacity to execute the conveyance must be governed by the lex situs, and, if the assignor lacks capacity by that law, the conveyance will fail. If contract and conveyance are bound together in the same document both will fail even though the proper law of the contract differs from the lex situs. Thus, when in Swank v Hufnagle22 a married woman executed (in Ohio where she had capacity to do so) a mortgage of land in Indiana, where she lacked capacity, the mortgage was held void as regards the personal covenant to pay, as well as regards the purported conveyance of the land. However, care must be taken to see that the lex situs does indeed purport to apply to out of state transactions. In Proctor v Frost,23 a mortgage, executed by a married woman domiciled in Massachusetts over land in New Hampshire, was upheld by the

New Hampshire court despite the existence of a statute of New Hampshire which denied this capacity to married women. The court justified its decision on the ground that the New Hampshire statute was not meant to apply to mortgages executed by married women resident outside that state. 33.18 The situation is clearly different where the contract is merely one to execute a conveyance or mortgage at some future date. The capacity to enter into such a contract can only be governed by its proper law. Unfortunately, the Court of Appeal in Bank of Africa v Cohen24 held otherwise. In that case, a married woman resident in England was the registered proprietor of land in South Africa. In order to assist her husband in his business, she executed a power of attorney whereby she appointed the South African manager of her husband’s creditor, the Bank of Africa, to be her attorney and further authorised him in her name to mortgage or otherwise deal with her South African land as the bank saw fit. Personal liability for the advances which the bank might make to the husband was expressly excluded. Under the law of South Africa a married woman could not become a surety for her husband unless she specifically renounced the benefit of certain laws giving her this protection. This she had not done and, for that reason, the securities over the South African land could not be registered in that country. The bank brought suit in England to claim specific performance of the agreement or, in the alternative, damages. The court found that under the law of South Africa the woman was incapable of executing the mortgage instrument until and unless [page 749] she had executed the requisite renunciation. The Court of Appeal treated this as a question of capacity.25 Clearly, a person incapable of executing a conveyance of land under the lex situs will not be ordered to do so by a court of equity, for equity does not compel the impossible. However, the court went on to deny the claim for damages as well, on the ground that no claim for damages could lie in respect of a promise that was unenforceable by the lex situs. Although nothing was said explicitly about the proper law of the contract, there was a clear assumption that it was English, since the court found it necessary to distinguish Re Courtney; Ex parte Pollard.26 That assumption is debatable, since an agreement to mortgage land in

South Africa, which excluded any personal liability on the part of the mortgagor for payment of the debt and thus was entirely to be performed in South Africa, would surely today be held governed by South African law.27 In Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd,28 Rich and Dixon JJ cited Bank of Africa v Cohen as one of several cases supporting the proposition that the governing law of a contract for the sale of an immovable should be the lex situs, which suggests that they understood the contract in Bank of Africa to be governed by South African law. 33.19 If the contract in Bank of Africa was governed by South African law, the decision might be regarded as acceptable. Otherwise, one is led to the peculiar and untenable conclusion that a person who deliberately enters into a contract to convey land can escape all liability, even under the proper law of the contract, if it turns out that under the lex situs he or she lacked capacity to convey. It is interesting to compare the decision of the Supreme Court of Massachusetts in Polson v Stewart.29 In that case the spouses, domiciled in North Carolina, entered into a contract whereby the husband undertook to surrender all his marital claims over land owned by the wife in Massachusetts. Under the law of North Carolina they had the capacity to enter into such a contract, but under the law of Massachusetts the capacity to do so was lacking. Nonetheless, the Massachusetts court upheld the validity of the contract according to the law of North Carolina. Since it held that the necessary releases could be executed by the husband in Massachusetts in favour of third parties, it made a decree for specific performance of the contractual obligation against the husband. 33.20 The case may arise where the assignor lacks capacity under the proper law but has capacity under the lex situs. According to the principles previously stated, third parties should not be affected by such lack of capacity since the lex situs is [page 750] dominant.30 As between the parties themselves (or their privies) personal equities may entitle a party to an order for reconveyance.31

Chattels

The rise of the lex situs 33.21 Until the middle of the nineteenth century, the cases favoured the law of the domicile as determinative of the ownership of chattels, reflecting the early sense, described at 33.1, that goods ‘followed the person’.32 Isolated dicta can be found throughout the nineteenth and even in the early twentieth century supporting this proposition.33 Nevertheless, the trend of authority since the middle of the nineteenth century has been steadily in favour of the lex situs.34 As Devlin J observed in Bank voor Handel en Scheepvaart NV v Slatford:35 There is little doubt that it is the lex situs which as a general rule governs the transfer of movables when effected contractually. The maxim mobilia sequuntur personam [goods follow the person] is the exception rather than the rule and is probably to be confined to certain special classes of assignments, such as marriage settlement and devolutions on death and bankruptcy.36

33.22 The trend towards the lex situs began with the decision of the Exchequer Chamber in Cammell v Sewell37 and continued with the decision of the House of Lords in Castrique v Imrie.38 The lex situs principle has been applied even though title to the chattels passed in a manner that the law of the forum would not have countenanced.39 Conversely, an assignment of chattels that is ineffective under the lex situs will not be [page 751] recognised in the forum. In Inglis v Robertson40 a quantity of whisky lying in a warehouse in Glasgow was pledged by its owner, an Englishman, to another English merchant under a transaction taking place in London. The document containing the pledge was accompanied by delivery warrants for the whisky. No notice of the pledge was given to the warehouse keeper. Under English law this was sufficient to give the pledgee the right of disposal of the goods, but under Scottish law the pledge was ineffective without notice to the warehouse keeper. The House of Lords, sitting on appeal from Scotland, held that, the whisky being situated in Scotland, only Scottish law was relevant to determine the title of the pledgee. 33.23 Inglis v Robertson was a decision on Scottish law and not directly of authority in Australia. However, it was followed in the Victorian case of Hockey v Mother o’Gold Consolidated Mines Ltd41 where a company incorporated in England but carrying on business in Victoria executed in England a mortgage

over chattels situated in Victoria in favour of a domiciled Englishman in order to procure an issue of debentures. Under the law of Victoria the mortgage was void for lack of registration. Under the law of England no registration was necessary. Hodges J held that the Victorian statute applied to all mortgages (presumably though only of chattels situated in Victoria) wherever made.42 In the conflict between English and Victorian law that resulted from this finding, he held that Victorian law as the lex situs of the chattels should prevail. 33.24 There do exist, however, dicta that support the application of the law of the place where the transaction occurred. When the authority for this alleged principle is examined, however, it is found to be most unsatisfactory. In two cases, Inglis v Usherwood43 and the Canadian decision in Re Hudson Fabric Shoppe44 which purports to follow Inglis v Usherwood, the right of the seller of goods to reclaim ownership from the purchaser after delivery was recognised by reference to the lex loci actus. In both cases the lex loci actus coincided with the lex situs of the goods at the time of the original contract for sale. But, more importantly, it is dubious whether the right of a seller to reclaim the property sold from the purchaser is a right of property at all. Rather, it would appear to be a contractual right and as such governed by the proper law of the contract.45 33.25 The other two cases commonly cited in this context are Alcock v Smith46 and Embiricos v Anglo-Austrian Bank,47 both concerned with bills of exchange. But despite several references in both cases to ‘the law of the place where the transaction [page 752] took place’, it is not clear in either case whether the foreign law in question was applied as the lex loci actus or the lex situs.48 Needless to say, in relation to bills of exchange the two almost always coincide. 33.26 Furthermore, application of the lex loci actus would conflict with the decisions in Inglis v Robertson and Hockey v Mother o’Gold Consolidated Mines Ltd. In each of those two cases the lex situs and the lex loci actus diverged and the former was preferred over the latter. The question would thus appear to have been resolved in favour of the lex situs, if it had not been for statements made in the House of Lords in Hardwick Game Farm v Suffolk Agricultural and Poultry Producers’Assn.49

In that case one of the issues raised involved the construction of s 2(2) of the Fertilizers and Feeding Stuffs Act 1926 (United Kingdom), which imposed a statutory warranty of fitness ‘on the sale of’ poultry food. The question before the House of Lords was whether the provision applied to a sale of poultry food, which took place by delivery in England of bills of lading covering such food then being carried by ship on the high seas towards an English port. The Court of Appeal, construing the word ‘sale’ as referring to the transfer of ownership and not to the contract of sale, held that the warranty applied only if the transfer of ownership took place in England. In its opinion the transfer of ownership occurred in the place where the goods were situated at the relevant time. As Diplock LJ said in the Court of Appeal:50 A contract made in England and governed by English law for the sale of specific goods situated in Germany, although it would be effective to pass the property in the goods the moment the contract was made if the goods were situated in England, would not have this effect if under German law … delivery of the goods was required in order to transfer the property in them.

Since the poultry food was still on the high seas at the time of the delivery of the bills of lading, it was held that no ‘sale’ had taken place in England. The House of Lords reversed this decision. Even accepting the validity of the interpretation of the Act by the Court of Appeal, that court, as their Lordships pointed out,51 had overlooked the principle that in a Cost Insurance Freight (CIF) contract for the sale of goods it is the bill of lading and not the goods covered by the bill of lading that is the subject of the transfer. Some of their Lordships, however, went further and questioned whether even in other cases the ‘sale’ took place at the situs of the goods. Lord Pearce said:52 I do not accept the hypothesis … that the sale occurs in the place where the goods are at the moment when the property passes. If one Englishman in London sells to another Englishman in London some movable goods which he owns abroad, I do not accept that the sale takes place abroad. I would rather incline to the view that it takes place in England where the contract takes effect and the property passes from vendor to purchaser.

[page 753] The statement is somewhat circuitous for it says the sale (that is, the assignment) takes place in England because that is where the property passes. What Lord Pearce apparently meant is that if the contract is clearly governed by English law because it is entered into in England between English persons, English law as the proper law of the contract determines that the property passes at the locus actus.

Thus, the proper law of the contract, he implies, rather than the lex situs or the lex loci actus is the governing law. 33.27 Even when understood in this way, Lord Pearce’s remarks, which clearly were obiter, conflict with both Inglis v Robertson and Hockey’s case. In both cases the transaction invalidated by reference to the lex situs was entered into in England by English persons in accordance with the law of that country. Neither of them involved the sale of goods, however, and could be distinguished on that ground. 33.28 Is it fair or reasonable as against third parties that the assignment on the sale of goods should be governed by the proper law of the contract of sale rather than the lex situs? Take the case instanced by Diplock LJ where one English person in London sells to a compatriot a chattel situated in Germany. The chattel is not delivered to the buyer and under German law the title remains with the seller. A German creditor of the seller seizes the property in Germany as property still belonging to the seller. A German court will presumably permit this.53 The title of the creditor and any title derived therefrom should be recognised in the forum for it would be unjust and commercially inconvenient to require the creditor and the assignees to consider any law other than the situs.54 33.29 The Personal Property Securities Act 2009 (Cth) adheres firmly to the lex situs, with only a few exceptions. Section 238(1) provides that a security interest in goods is governed by ‘the law of the jurisdiction … in which the property is located when the security interest attaches, under that law, to the goods’. Section 238(2) provides that if goods are moved into a jurisdiction and, at the time the security interest attaches, the secured party reasonably believes that the goods will be moved into that jurisdiction, then the security interest is governed by the law of that jurisdiction. For ‘goods [that] are commercial property of a kind that is normally used in more than one jurisdiction’ (such as, for example, shipping containers), s 238(3) provides that a security interest in the goods is governed by the law of the place where the grantor is located. Section 235 defines ‘located’. A corporation is ‘located’ for these purposes where it is incorporated55 and a person is ‘located’ at his or her principal place of residence.56 [page 754]

Gifts

33.30 The proprietary effect of any gift depends on the lex situs of the chattel at the relevant time. For example, in Anning v Anning,57 a Queensland domiciliary, being about to die, executed a deed of gift to his wife and children in equal shares of all his personal property, which included chattels in Queensland and New South Wales. The High Court of Australia determined the validity of the gift of chattels in Queensland by applying Queensland law, and the validity of the gift of chattels in New South Wales by applying New South Wales law. 33.31 Two English cases are to the same effect. In Re Korvine’s Trusts58 a domiciled Russian resident in England made a gift to the plaintiff, a Russian lady living in Switzerland, of certain movables situated in England. The gift was made conditional upon his dying in the near future. His death took place a few weeks later. Under English law the gift was effective as a donatio mortis causa, but under Russian law the gift was ineffective to pass title. Eve J applied English law as the lex situs of the chattels. It may be, of course, that English law was also the proper law of the transaction, but this was not, it is submitted, a foregone conclusion in this case. 33.32 In the later case of Re Craven’s Estate (No 1),59 an English woman domiciled in England gave her son a power of attorney to deal with moneys and shares deposited in a bank in Monte Carlo. Facing an operation that might prove fatal, she instructed her son to have the shares and the money in Monte Carlo transferred into his name as she wanted him to have them in case she died. She died shortly thereafter. The estate was administered in England. Farwell J looked first to English law to see whether the legal requirements necessary to constitute a valid donatio mortis causa existed. He did so on the ground that English law governed the administration of the estate. He then looked to the law of Monaco, as the lex situs, to see whether under that law everything necessary to part with dominion had been done by the donor. He held the gift to be valid.

Retention of title clauses 33.33 Contracts for the international sale of goods often contain retention of title clauses,60 which purport to reserve property in the goods to the seller until payment of the purchase price by the buyer, notwithstanding the fact that the goods have been delivered to the buyer. The effect of such a purported retention of title should be governed by the lex situs of the goods at the time of the purported exercise, rather than by the proper law of the sale contract. This is definitely the position under the Personal Property Securities Act 2009 (Cth), as

the relevant provisions choose the law of the place where the goods are ‘when the security interest attaches, under that law, to those goods’.61 [page 755] 33.34 However, more sophisticated versions of the clause purport also to give the seller rights in the proceeds of on-sale of the goods by the buyer. In Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq),62 the High Court of Australia held that a retention of title clause in this form was an agreement to constitute a trust of future-acquired property. According to this characterisation, the effect of a retention of title clause over the proceeds of on-sale may thus be governed by the choice of law rules governing trusts.63 Under the Personal Property Securities Act 2009 (Cth) a security interest in proceeds (‘other than proceeds that are an account’) is governed by the law of the jurisdiction that governed the security interest in the collateral that gave rise to the proceeds,64 which in this context would be the goods before sale.

Rights embodied in a document 33.35 Finally, mention must be made of property rights embodied in documents, such as bills of lading, negotiable instruments and shares. Because the document is of value in itself and can be dealt with as such, it attains the status of a chattel in its own right independently of the rights in the property it represents. Thus, a transaction that involves a bill of lading is governed by the law of the place where the bill is situated at the time, even though the goods covered by the bill of lading are still in transit.65 The assignment of a negotiable instrument is governed by the law of the place where the instrument is situated at the relevant time.66 33.36 The Personal Property Securities Act 2009 (Cth) creates a different rule for security interests in ‘financial property’, which is defined by the Dictionary in s 10 as meaning chattel paper; currency; a document of title; an investment instrument (which includes shares, debentures, stocks, bonds, etc.); or a negotiable instrument. Section 240(1) provides that the validity of a security interest in ‘financial property’ is governed by the law of the jurisdiction where the grantor is located when the security interest attaches. 33.37 Shares present some difficulty. In so far as the share certificates

themselves are documents of value, the right to possess them is governed by the law of the place where they are physically situated,67 although this rule has little if any significance any longer because shares are now held under the indirect holding system described at 33.38 below. So far as involuntary assignments of paper shares are concerned, there is Canadian authority that applies the law of the place of incorporation.68 So far as voluntary assignments of such shares are concerned, the English Court of Appeal held in Macmillan Inc v Bishopsgate Trust plc (No 3)69 that the governing law [page 756] should be the lex situs, the law of the place where the shares were situated. The three members of the court differed slightly about how to determine the situs of ordinary shares. Staughton LJ said that in the ordinary course of things (that is, unless the share certificates are negotiable instruments), it would be the law of the place of incorporation, that being the place where the share register is kept.70 Auld LJ said that it would normally be the country where the register is kept, usually but not always the country of incorporation,71 and Aldous LJ concluded without reservation that the situs of ordinary shares is the place of incorporation.72 These differences of formulation were insignificant on the facts of the case, because the share register was kept in the place of incorporation, New York. It is only if the share register is kept in a different place from the place of incorporation that a choice between these formulations will have to be made. Most textwriters support the law of the place where the register is kept.73 33.38 The rules governing assignments of share certificates are now largely obsolete, at least for publicly-traded shares. The internationalisation of capital markets has produced a system of indirect holding of shares through the medium of securities intermediaries.74 Shares are now ‘dematerialised’ and ‘immobilised’. Dematerialisation means that paper shares are no longer issued and transfers are effected purely by book entry or electronic means.75 Immobilisation means that legal ownership of shares remains with a single operator, which keeps accounts for the interest of various securities intermediaries.76 Investors are no longer truly shareholders but rather account holders with a securities intermediary. When an investor sells ‘shares’, there is no need for the registration of transfers in the books of the issuing company because the shares remain the property of the operator. What is transferred from investor to investor is not a ‘share’ in the strict sense but the right to the benefits

arising from an undivided interest in a specified portion of shares held by the securities intermediary.77 Because shares are no longer ever transferred from person to person at all, the old rules described above and their focus on lex situs are no longer relevant in practice.78 Several alternatives have been suggested in their place. 33.39 The Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held With an Intermediary 2006 focuses on the relationship between the investor or account holder and the securities intermediary. The applicable law under the convention is that which governs the account agreement.79 However, [page 757] the convention has not yet come into force, as only two countries (Mauritius and Switzerland) have ratified it. Another, similar, choice of law rule that has been suggested for the indirect holding system is the law of the place of the relevant intermediary (or PRIMA), meaning the law of the intermediary on whose books the interest in dispute is credited.80 Ooi argues for the lex creation is, the ‘law under which the thing was created’, the ‘thing’ here being the contractual right of the account holder against the intermediary or the intermediary against the operator.81 33.40 As noted above at 33.36, s 240(1) of the Personal Property Securities Act 2009 (Cth) creates a different rule for security interests in ‘financial property’, which includes shares, debentures, stocks, bonds, etc. Security interests in such property are governed by the law of the jurisdiction where the grantor is located when the security interest attaches.

The effect of a change of situs 33.41 Change of situs is essentially a problem affecting chattels. An immovable cannot by definition change its situs,82 while in relation to debts the lex situs does not have much significance.

The paramount title situation 33.42 It is of the nature of a chattel that it can change its situation and, indeed,

most conflict cases arise because of such a change involving the potential application of more than one law. Thus, a thief may steal a chattel belonging to A in South Australia and sell it in that state in market overt to B. Under the law of South Australia sales in market overt according to the usage of the market confer a good title on a bona fide purchaser for value notwithstanding any defect in the title of the seller.83 Subsequently, B brings the chattel to New South Wales where A claims it. The law of New South Wales does not know the institution of the market overt. 33.43 There is no doubt that a New South Wales court should recognise the title that B acquired under the law of South Australia when buying the chattel there, although it was acquired in a manner that the law of New South Wales does not recognise in domestic transactions.84 In the hypothetical case set out above, it is both reasonable and convenient that a person who buys a chattel in South Australia in circumstances in which, by the law of that state, that person is not bound to inquire into the vendor’s title, should only have to bear the law of that state in mind and should not be bereft of title to the chattel because it is later brought into New South Wales, which happens to have a different law on the subject. Thus, [page 758] if by the law of the situs, whether it be the forum or another country, the purchaser obtains a title in a manner which cures all prior defects in the title, that purchaser should be entitled to rely on that title to the exclusion of any claim any previous possessor of that chattel might have.85

The derivative title situation 33.44 Although the solution seems clear in the paramount title situation (see 33.42 above), it may not be so obvious when the question is whether an assignee derives title from an assignor who has previously purported to create a security interest in the chattel. In the paramount title situation, the assignor’s title is irrelevant and consequently there is no need to inquire into it. In the derivative title situation the answer depends on whether the forum will recognise the assignor’s title or not. This in turn depends on whether the forum will give effect to the security interest that the assignor purported to create under the law of the previous situs of the chattel. In most cases this revolves around the issue of

whether registration requirements in relation to such interests imposed by the law of the forum are applicable to security interests created outside the forum. 33.45 Older decisions held that the registration requirements of the forum did not apply to security interests created under and governed by the law of other states.86 Those cases showed considerable concern to preserve the interests of out-of-state mortgagees rather than in-state purchasers. That attitude changed with the decision of the Full Court of the Supreme Court of Queensland in Douglas Financial Consultants Pty Ltd v Price.87 In that case a financial institution had entered into a leasing arrangement in New South Wales in relation to a motor car then situated in that state. The lessee brought the car to Queensland where he purported to sell it as owner to Douglas Financial Consultants Pty Ltd. That company subsequently sold the vehicle to Price who purchased it for value without notice of any interest in the vehicle on the part of the financial institution. After the financial institution caused the vehicle to be repossessed by the Queensland police, Price sued Douglas for the purchase price back. At issue was whether Price had obtained a good title under s 26(1) of the Motor Vehicles Securities Act 1986 (Qld),88 which provides for the extinction of a security interest (which the interest of the lessor/owner was held to be) where the car was purchased ‘for value and in good faith and without notice of the security interest’ at the time of purchase. There was no issue that Price met these criteria. Under s 13 of the same Act a purchaser was imputed with notice if the security interest was registered under the Act, but this had not been done. The trial judge, in line with the older cases, held that the Queensland provisions did not apply to a security interest created under and governed by the law of another state. The Full Court did not agree. It interpreted s 26(1) as applicable to all sales [page 759] of motor vehicles then present in Queensland and s 13 as permitting the registration of security interests created under the law of other states. It followed that s 26(1) prevailed over the security interest created by the law of New South Wales.89 33.46 The decision of the Full Court in Douglas Financial Consultants is clearly correct. It is submitted that the concern for the interests of the secured interest holder shown in the past is misplaced today when such a person, usually

a finance company, is in a much better position to protect itself by insurance or registration than the bona fide purchaser of the chattel. If the forum does require registration of security interests under its own law there is no reason why that requirement should not be applied to chattels brought into the forum. Only if the forum does not require registration of such interests should the court look at the law of the former situs. If by that law the possessor of a chattel can give a good title to a third party giving value and acting in good faith, the owner should not be in a more advantageous position in the forum, even though under the domestic law of the forum the possessor could not have passed any title.90 If, under the law of the earlier situs, the reservation of title was effective against third parties, then, and only then, in the absence of a local transaction which has the effect of overriding previous defects of title, should the title of the owner or security interest holder be preferred in the forum. 33.47 In many (if not most) cases, problems of this kind will no longer arise now that the Personal Property Securities Act 2009 (Cth) has come into force. The Act creates a uniform national scheme of registration of security interests in personal property, thereby doing away with the differences between state and territory schemes that gave rise to the conflicts of law of the kind dealt with in Douglas Financial Consultants. Choice of law problems will only arise in a derivative title situation in relation to security interests purportedly created in other countries.

Renvoi 33.48 So far the discussion has proceeded on the basis that the forum is the second situs of the chattels in question. This may not always be so. Assume, for instance, that A, by a transaction taking place in country X, mortgages a chattel situated there to B. The mortgage is registered there and for that reason is enforceable by the law of X against third parties. A later takes the chattel to country Y, which requires registration of chattel mortgages even though entered into outside Y. The mortgage is not registered there and for that reason is not enforceable under the law of Y against third parties. A sells the chattel to C by a transaction taking place in country Y. C later takes the chattel back to X or perhaps on to country Z. B brings suit to recover the chattel from C in country X or country Z. If the transaction in country Y was by the law of that country such as to give C a title independent of the title of the assignor,91 then, under the principle in Cammell v Sewell,92 (see 33.22 above) that title would be recognised even in X.

But in the [page 760] postulated example this is not the case. The law of country Y regards the title of the assignee as being dependent upon that of the assignor. The difficulty is caused by the fact that, whereas the law of country X regards B as having title, the law of country Y regards A as having title in the absence of local registration of B’s interests. 33.49 It has been suggested that in such a case the question of whether the assignor has a title to pass on should be determined by the law of the country where the transaction took place that created or affected the title the assignor is seeking to pass on in Y; that is to say, by the law of X. On that view the question whether Y would pay any regard to the law of X is irrelevant. This view would tend to favour the interests of the mortgagee and non-possessing owner. In the example given above, it would mean that, although C obtained a title in Y that the courts of that country would uphold against B, as soon as C brings the goods to X or Z the title of B will prevail. Even in the converse case where the law of X requires registration and the law of Y does not, one can expect the forum to sustain the title of B by construing the statute of X as applying only as regards purchasers taking by virtue of transactions taking place in X. 33.50 If the court wishes to protect the interests of the bona fide purchaser, as it is submitted it ought in principle, there is much to be said for application of the renvoi technique in this case.93 Thus, it is submitted, the court in X or Z should ask itself whether the courts of Y would have upheld the purchaser’s title according to the law of Y, including its choice of law rules. Since the courts of Y will not recognise the title of B in the example given above, it is submitted that the courts of X and Z must give preference to the claim of C.94 33.51 The difficulty of renvoi is, of course, that the law of Y is not always readily discernible on such a point. But since the courts have no hesitation in construing the attitudes of the legislatures of other countries to external transactions in accordance with their own policy predilections,95 there is nothing to stop an Australian forum from holding that a foreign registration requirement applies to external transactions. Of course, if the forum finds country Y has a declared policy favouring mortgagees and owners, the forum must follow this. Presumably in that case the bona fide purchaser buying the chattel in country Y

must be taken to have assumed a predictable risk. 33.52 There are very few authorities on this point in England and Australia. The nearest authority appears to contradict the proposition stated at 33.50 above. In Simpson v Fogo,96 the owner of a British ship mortgaged the ship in England but remained in possession with the consent of the mortgagee. The owner took the ship to Louisiana where it was seized by a local resident who was one of the creditors of the owner. The law of Louisiana required delivery to the lender in order to complete the mortgage of a chattel and applied this rule even to mortgages executed abroad. [page 761] Since the ship had never been delivered to the mortgagee, the Louisiana court treated the owner as having full title to the ship. Thus, it permitted the creditor to seize the ship as the property of the owner. When the ship returned to England, the English court refused to recognise the decree of the Louisiana court. The title of the English mortgagee was held to prevail over that of the foreign creditor. The case therefore, at first sight, appears to support the proposition that the title of the assignee, if derivative, must be determined by direct reference to the law of the first situs, irrespective of whether or not the courts of the second situs give effect to the law of the first situs. However, the refusal to recognise the Louisiana decree was based on its ‘perversity’ in refusing to apply allegedly universal rules of choice of law. The remarks made by members of the House of Lords in Carl Zeiss Stiftung v Rayner and Keeler (No 2)97 make it quite clear that today an English court would not object to the decision of a foreign court merely because it applied a choice of law rule that was different from those applied by English courts. 33.53 Indeed, a few years later quite a different attitude was taken in Liverpool Marine Credit Co v Hunter98 where the facts were remarkably similar to those in Simpson v Fogo. The mortgagee of the ship in question sought an injunction in England restraining the creditor from proceeding against the ship in Louisiana on the ground that proceedings there were fraudulent, since the creditor knew that the courts of Louisiana would not recognise the mortgagee’s title to the ship. The Court of Chancery, however, refused to intervene.99 33.54 The clearest application of the principle here advocated is found in the

decision of the Supreme Court of North Carolina in Applewhite v Etheridge.100 In that case, a chattel mortgage over goods situated in North Carolina was created there and duly registered in accordance with the law of that state. Later the chattel was removed to Virginia by the mortgagor and sold there to a bona fide purchaser. The law of Virginia required registration of out-of-state chattel mortgages. The mortgagee took proceedings against the purchaser when he brought the goods back to North Carolina. The North Carolina court upheld the purchaser’s title by reference to the whole law of Virginia.101 33.55 So far as security interests in personal property are concerned, there is clearly no possibility for application of the doctrine of renvoi since the Personal Property Securities Act 2009 (Cth) came into force. Each of the statutory choice of law rules in Chapter 7 of the Act specifically provides that the chosen law is the law of a jurisdiction ‘other than the law relating to conflict of laws’.102 [page 762]

Intangibles From lex domicilii to lex situs to lex loci actus 33.56 There is no reason in principle why the law relating to the assignment of intangible chattels should differ from that concerning other kinds of property. There is the difficulty that intangible property has no clearly discernible situs. However, as we have seen,103 the law has worked out certain rules assigning a situs to intangible property. 33.57 Nevertheless, the difficulty involved in giving a situs to intangibles meant that the earlier stress on the law of the domicile maintained a much stronger hold in this context. The English decision of Lee v Abdy,104 supported both the law of the domicile and the law of the place of the transaction. As we have seen earlier,105 the cases dealing with the assignment of negotiable instruments also support the application of the latter law, particularly when the obligation embodied in the negotiable instrument is treated as a debt and not as represented physically by the piece of paper it is written on. 33.58 The lex situs made its first appearance in this connection in Re Queensland Mercantile and Agency Co Ltd.106 In Kelly v Selwyn,107 however,Re

Queensland Mercantile and Agency Co was distinguished by Warrington J on the ground that it concerned an assignment by operation of law. In Kelly v Selwyn, a beneficiary under an English will, who was domiciled in New York, assigned his interest in the estate to his wife by an assignment executed in New York. By the law of New York the assignment was valid despite the absence of notice to the trustee, but not by English law. Later he executed in England another assignment of the same interest to Kelly by way of mortgage. That assignment was valid under English law because notice was given to the trustee. The estate was administered by a trustee resident in England and had been invested in English securities. Warrington J applied English law. By the lex situs his Honour was right in doing so since the situs of the beneficiary’s interest in the trust estate was clearly English because of the residence of the trustees there. But his Lordship did not put his decision on this basis: treating the case as one of priorities between two essentially valid assignments, he held English law to be applicable as the proper law of the trust fund being the estate of a deceased English domiciliary and administered by English trustees. Kelly v Selwyn on its own reasoning, therefore, supports the lex loci actus since the judge did not deny the intrinsic validity of the New York assignment. But, by the same token he rejected the lex situs. 33.59 The decision of the Court of Appeal in Republica de Guatemala v Nunez108 is the most important in the field but its reasoning is not very helpful. Cabrera, while President of Guatemala, deposited certain funds with a London bank. Subsequently, [page 763] he wrote to the bank from Guatemala requesting that the bank place the funds in the name of his ex-nuptial son Nunez. Both Cabrera and Nunez were domiciled in Guatemala. The next year Cabrera was deposed and was forced by his political opponents to execute an assignment of the funds in favour of the Republic. It was argued on behalf of the Republic that the assignment to Nunez was invalid under the law of Guatemala on the grounds: (a) that the assignment was not in the form required by the law of Guatemala and hence by that law was void ab initio; and (b) that Nunez, then a minor, was under the law of Guatemala incapable of accepting the assignment without the assistance of a legal guardian. It was strongly argued before the court that, since the situs of the debt was

English, only English law was relevant to the assignment between Cabrera and Nunez. Nevertheless, the Court of Appeal held unanimously that Guatemalan law should apply to render the assignment invalid. They did so, however, for three different reasons. Bankes LJ did not consider the situs of the debt relevant in this context.109 He wrongly characterised the issue as one of priorities between Cabrera and Nunez. Since both were domiciled in Guatemala he held the law of that country determined the issue. It was not, however, a case of priorities since the argument for the Republic was that the second assignment prevailed because the first assignment was void. Scrutton LJ also saw little merit in the lex situs. On his view of the authorities he came to the conclusion:110 … they do not support the proposition that a transaction as to an English debt void by the law of the country where it takes place and by the law of the domicil of the parties to it will be treated as valid in the country where the debt is deemed to be situated. In my opinion, both the capacity of the parties to enter into such a transaction and the validity and effect of such a transaction in form and results must be determined by one or other of those laws; and in this case they are the same.

Thus, Scrutton LJ did not have to make a choice between the lex domicilii and the lex loci actus. However, he made clear his preference for the lex domicilii so far as the question of capacity to assign was concerned, and for the lex loci actus so far as the case raised a question of the formal validity of the assignment. Only Lawrence LJ accepted the lex situs as the determining principle in the validity of the assignment.111 Authority, as he admitted, was lacking but he argued from the general principle applicable to the assignment of goods: Whenever a local situation can properly be attributed to a debt it seems to me logically to follow that the same principle should be applied to its assignment as is applicable to the transfer of goods.

However, he concurred with his brethren on the ground that the capacity of Nunez to accept the assignment was determined by the law of his domicile.112 Since he could not take the property under that law, the assignment failed for that reason. [page 764] 33.60 Of the three judgments delivered in the Court of Appeal that of Scrutton LJ was preferred by Maugham J in Re Anziani.113 In that case an assignor

domiciled in Italy executed in that country an assignment of her interest in an English trust fund. Thus, Italian law was both the lex loci actus and the lex domicilii. By Italian law the assignment was void, not merely for a formal defect, but for a defect which Italian law considered as going to the essence of the transaction. The decision therefore supports the view that the lex loci actus governs the validity of an assignment of an intangible both as to form and as to substance.

The present state of authority 33.61 The decisions described at 33.56–33.60 above can only be reconciled with each other by dividing the subject into several categories. 33.62 So far as involuntary assignments are concerned, there is now, since the decision in Re Queensland Mercantile and Agency Co Ltd, overwhelming support for the proposition that the validity of an assignment by operation of law depends on the lex situs.114 33.63 In relation to voluntary assignments the bulk of authority certainly favours the proposition that the intrinsic validity of such an assignment, both as to form and as to substance, is governed by the lex loci actus.115 Preferably, as Dicey and Morris urged in previous editions,116 past references to the lex loci actus must today be interpreted as referring to the proper law of the assignment rather than the law of the place where the transaction physically took place. Following the decision of the Court of Appeal in Republica de Guatemala v Nunez it is unlikely that any assignment that is valid by the lex situs but void by the proper law will be upheld in the forum. However, this does not mean that the lex situs is completely irrelevant. Indeed, one may ask oneself the question whether an assignment valid by the proper law but void by the lex situs would be upheld.117 33.64 There is clear authority to support the view that, at the very least, any registration requirement of the lex situs must also be complied with. One of the [page 765] strongest authorities is the early High Court decision in Anning v Anning.118 In that case a Queensland domiciliary executed a deed shortly before his death, whereby he purported to assign to his wife and children all of his personal estate

wherever situated. The personal estate included mortgage debts secured over land in New South Wales, which were registered under the New South Wales Real Property Act. Under the law of New South Wales the mortgage and the right to sue for the debt could be transferred only by a document executed and registered in accordance with that Act. This the donee had not done when he died shortly after executing his deed of gift. It must be noted here that, whilst it was clearly made in contemplation of death, it was not a donatio mortis causa since it was an unconditional gift. The High Court chose to treat the mortgage debts as personalty and thus as intangible movables and not as an immovable interest.119 On that premise the debts were situated in New South Wales where the debtors resided.120 It was held by all the justices that the mortgage debts, not having been transferred in the manner required by the law of New South Wales, could not be regarded as having passed under the Queensland deed. 33.65 Under the Personal Property Securities Act 2009 (Cth), a different rule applies to security interests in intangible property. Section 239(1) provides that the validity of a security interest in intangible property is governed by the law of the jurisdiction in which the grantor is located when the security interest attaches, under that law, to the property.121 33.66 Thus, in general, it could be argued that an assignment of an intangible must comply with the requirements as to essence and form of its proper law and must conform with everything that is required to pass the title according to the lex situs of the debt.122 If this is admitted, then obviously the situation is not very much different from that which prevails in relation to the assignment of other forms of property, particularly when one keeps in mind the fact that in an assignment of intangible property the proprietary and contractual aspects are inextricably intermingled. The only question is which of the two should prevail in the case of conflict. On that point the remarks made by Pearson J in relation to involuntary assignment in Jabbour v Custodian of Absentee’s Property of State of Israel123 are, it is submitted, of equal force in relation to voluntary assignments: … there is a considerable weight of authority in favour of the view that only the lex situs can alter the title to debts and choses in action, and the authorities cited to prove the contrary proposition do not seem to have that effect. On principle there is the consideration that, if the action to recover a debt or chose in action is brought in the country where it is properly recoverable and therefore situated, and if there is conflict between the lex situs and the proper law … the court trying the action will be bound to apply its own law which is the lex situs …

[page 766]

Capacity to assign 33.67 The decision in Lee v Abdy (see 33.57 above) and the judgments of Scrutton and Lawrence LJJ in Republica de Guatemala v Nunez (see 33.59 above) lend support to the view that the capacity to assign intangible property is governed by the law of the domicile. However, if one accepts the view that the lex loci actus or proper law of the assignment governs, the reference to the lex domicilii was unnecessary to sustain the decision in either of those cases. There is today little support for the view that capacity to assign intangible property is governed by the lex domicilii. Why, then, should the question of capacity be separated from other aspects of validity at all?124

Assignability 33.68 Finally, most English textwriters support the proposition that the question whether an intangible is assignable at all was at common law determined by the law under which the right was created.125 That view has the support of the House of Lords in Trendtex Trading Corp v Credit Suisse,126 where it was held that an assignment of an English right of action effected in Switzerland by an agreement governed by Swiss law was void by English law which does not permit the assignment of a ‘bare right to litigate’.127 This approach, however, conflicts with the early decision in Twaddell v New Oriental Bank Corporation Ltd128 where Hodges J applied Victorian law as the lex situs of the assignment to determine whether a policy taken out in Scotland with a Scottish insurance company was assignable in Victoria. The American writer Ehrenzweig129 has suggested that the question of assignability depends not so much on the law which created the right assigned as on the intention of the parties whether the right should be assignable or not.

Priorities 33.69 The question of priorities arises where there is a contest as between assignments of the same thing, each being valid under its own governing law. An example occurs where A sells a thing, whether movable or immovable, to B and afterwards purports to sell the same thing to C. If intrinsically valid assignments

are executed in each case, the question arises which shall have priority. If the assignments are governed [page 767] by different laws that impose different priorities, a conflict of laws arises. Of course, if one assignment is invalid under its governing law, there is no problem.130 33.70 In the case of immovable property the question of priorities is governed exclusively by the lex situs.131 The same principle applies to chattels.132 In the case of a change in the situs of a chattel the law of the situs at the time of the second assignment prevails. This is borne out by Hooper v Gumm,133 one of the few cases dealing with a chattel that can be characterised as a priority issue. In that case, a shipowner mortgaged a ship in the United States but the mortgagee did not register the mortgage. The owner subsequently brought the ship to England and sold it there to a bona fide purchaser for value. A contest arose between the mortgagee and the buyer. The English court held that the unregistered mortgage had created an equitable interest in the ship. It applied English law, however, in holding that by reason of the mortgagee’s failure to register, the interest of the buyer should prevail over that of the mortgagee. A preference for the second lex situs was also an alternative basis for the decision of the Queensland Full Court in Douglas Financial Consultants Pty Ltd v Price.134 33.71 The Personal Property Securities Act 2009 (Cth) contains provisions about the priority to be given to competing security interests in personal property. The key concept is that of perfection. Perfected security interests take priority over unperfected security interests.135 If two or more security interests in the same collateral are perfected, priority is determined by the order of priority time, which is defined as being the time of registration, the time of first possession by the secured party, or the time when the interest is perfected by force of the legislation, whichever is earliest.136 Priority between unperfected security interests is determined by the order of attachment of the security interests.137 For ‘financial property’,138 perfection and the effect of perfection are governed by the law of the jurisdiction where the grantor is located at that time,139 unless the property is located in Australia and the secured party has possession or control of the property sufficient to perfect the security interest, in

which case perfection and the effect of non-perfection are governed by the law of Australia.140 If the foreign law governing the perfection of a security interest in ‘financial property’ does not provide for public registration or recording or notice of the priority interest, that interest has priority over all other interests (not only security interests) if it is perfected by registration in Australia before the other interest attaches to the property if the property is located in Australia when the other interest arises, and if the secured party does not have possession or [page 768] control of the property.141 There are no specific rules governing priority of security interests in property other than ‘financial property’. 33.72 In Admiralty proceedings, questions of priority often arise not because of successive assignments of a ship as chattel, but because of successive acts or events giving claimants rights in rem against the ship. In Bankers Trust International Ltd v Todd Shipyard Corp (The Halcyon Isle),142 the Privy Council held that in Admiralty proceedings in rem, the question of priorities is a procedural matter governed by the lex fori. In particular, the question whether a claim against the ship is secured by a maritime lien is governed by the law of the forum, rather than the lex causae of the claim. In contrast, the Supreme Court of Canada has held that the question whether a claim should be secured by a maritime lien should be governed by the lex causae of the claim.143 As noted at 16.43 above, older Australian cases144 adopting The Halcyon Isle may have to be reconsidered in the light of John Pfeiffer Pty Ltd v Rogerson.145 Because the presence or absence of a maritime lien is highly ‘outcome determinative’, it may best be regarded as a substantive question under the principles stated in John Pfeiffer. Nevertheless, the question of priorities between competing maritime liens must necessarily be governed by the lex fori.146 33.73 In relation to intangible chattels, the position is more complicated because, as has been shown, it is uncertain what law governs the assignment of intangibles.147 The decided cases support the application of the proper law of the debt itself to resolve the issue. In Le Feuvre v Sullivan148 a person domiciled in Jersey took out a life policy with an English company. He deposited the policy in England with a person resident there as collateral security for a loan. Later, having obtained a duplicate of the policy by fraud, he purported to assign the policy in Jersey to his wife. After his death a contest developed between the

widow and the English mortgagee. The Jersey court held, applying Jersey law, that the wife had priority. On appeal the Privy Council reversed the decision and held, applying English law on the ground that the policy was an English contract, that the mortgagee was prima facie entitled to priority. It must be noted that whatever the reasoning of the Privy Council, which most certainly was based on the proper law of the contract being English, the debt embodied in the policy being a specialty debt, its situs was where the original policy was kept, namely in England. [page 769] 33.74 In Kelly v Selwyn,149 a beneficiary in an English estate who was domiciled in New York assigned his interest in the estate to his wife. He subsequently assigned the same interest to an Englishman by way of mortgage. Under the law of New York the assignment to the wife would have priority. Under English law the mortgagee would have priority. Warrington J decided the issue on the ground that: ‘[T]he fund here being an English trust fund and this being the court which the testator may have contemplated as the court which would have administered that trust fund, the order in which the parties are held entitled to the trust fund must be regulated by the law of the court which is administering that fund.’150 33.75 This statement by Warrington J in Kelly v Selwyn was followed and applied by the High Court of Australia in Australian Mutual Provident Society v Gregory.151 In that case, a beneficiary in a Tasmanian estate administered by a Tasmanian trustee became a bankrupt in South Africa where he was presumably domiciled. Under the law of South Africa, bankruptcy effected an assignment of his interest in the Tasmanian estate to his trustee in bankruptcy. Subsequently, however, he executed in Tasmania an assignment of the same interest to the Australian Mutual Provident Society. The High Court, proceeding on the assumption that the interest concerned immovable property,152 held that the question of priorities should be decided by Tasmanian law, as the law governing the estate.153 33.76 These three cases certainly support the contention of Dicey, Morris and Collins154 that the governing law is the proper law of the debt or the law governing the creation of the intangible right. Yet in both Kelly v Selwyn and Australian Mutual Provident Society v Gregory the situs of the debt coincided

with the proper law of the trust fund. 33.77 Two other contenders can be mentioned here in order to dismiss them. In Republica de Guatemala v Nunez,155 Bankes LJ, proceeding on the incorrect basis that a question of priorities was involved (see 33.59 above), determined the issue by reference to the lex domicilii of the contenders. This is clearly inconsistent with all the cases mentioned above. In the same case, Scrutton LJ interpreted Kelly v Selwyn as supporting the application of the lex fori.156 This is a dubious interpretation and in any event is inconsistent with the opinion of the Privy Council in Le Feuvre v Sullivan. 33.78 Certainly, if it is eventually held that there is no distinction in principle between assignments of intangibles and assignments of other types of property, it must follow that there should be no distinction either so far as the question of priorities is concerned. Whatever the reasoning in these old and rather scattered decisions, they should not prevent the application of the lex situs. _________________________ 1.

Murakami v Wiryadi (2010) 268 ALR 377 at 401, [124] per Spigelman CJ.

2.

(1890) 11 NSWLR 219.

3.

(1918) 18 SR (NSW) 252.

4.

Irving Trust Co v Maryland Casualty Co, 83 F 2d 168 (2d Cir, 1936), but compare Landry v Lachapelle [1937] OR 444; 2 DLR 504.

5.

See, for example, Re Maiden Civil (P & E) Pty Ltd [2013] NSWSC 852, distinguishing between questions of title and the effect inter partes of the granting and registration of security interests under the Personal Property Securities Act 2009 (Cth).

6.

See, for example, State Bank of New South Wales v Sullivan [1999] NSWSC 596 at [204]–[224] per James J.

7.

Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd (1933) 48 CLR 565; McLelland v Trustees, Executors and Agency Co Ltd (1936) 55 CLR 483.

8.

[1910] 2 Ch 502 at 515. See also Queensland Estates Pty Ltd v Collas [1971] Qd R 75.

9.

Though the decision of the Court of Appeal was reversed by the House of Lords [1912] AC 52, the reasoning of the Court of Appeal on this point has been accepted as authoritative: Dennys Lascelles Ltd v Borchard [1933] VLR 46, by the High Court in Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd (1933) 48 CLR 565; and in McLelland v Trustees, Executors and Agency Co Ltd (1936) 55 CLR 483.

10. Kahler v Midland Bank [1950] AC 24; Zivnostenka Banka National Corp v Frankman [1950] AC 57. 11. (1840) Mont & Ch 239; [1835–42] All ER Rep 415. 12. See J D Falconbridge, Selected Essays on the Conflict of Laws, 2nd ed, Canada Law Book Co, Ontario, 1954, p 608. 13. Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd (1933) 48 CLR 565 at 576–7 per Rich and Dixon JJ; McLelland v Trustees, Executors and Agency Co Ltd (1936) 55 CLR 483; Rochford v Habashy [2005] QCA 197. The contrary decision by Mann J in Dennys Lascelles Ltd v Borchard

[1933] VLR 46 must be viewed in the light of the two High Court decisions. 14. See Wragge v Sims, Cooper & Co (Aust) Pty Ltd (1934) 50 CLR 483 at 500 per Evatt J. 15. See 33.26–33.28 below. 16. (1840) Mont & Ch 239; [1835–42] All ER Rep 415. 17. Norton v Florence Land & Public Works Co (1877) 7 Ch D 332; Murakami v Wiryadi (2010) 268 ALR 377 at 395, [93] per Spigelman CJ (McColl and Young JJA agreeing). 18. (1933) 48 CLR 565 at 576. 19. Nelson v Bridport (1846) 8 Beav 547; 50 ER 215. 20. Anning v Anning (1907) 4 CLR 1049. 21. Bank of Africa v Cohen [1909] 2 Ch 129 at 135 per Eve J, at 143 per Buckley LJ. Compare Burchett J’s choice of words in Re Doyle (dec’d); Ex parte Brien v Doyle (1993) 41 FCR 40 at 54; 112 ALR 653 at 666: ‘The rule of our private international law is that it is for the lex situs to determine the capacity of a person to deal with real estate, and the effectiveness of any conveyance’. 22. 13 NE 105 (Ind, 1887). 23. 197 A 813 (NH, 1937). 24. [1909] 2 Ch 129. 25. See Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012, pp 1332–3. 26. (1840) Mont & Ch 239; [1835–42] All ER Rep 415. 27. See, for example, State Bank of New South Wales v Sullivan [1999] NSWSC 596 at [204]–[224] per James J (contract by Queensland resident mortgagor to mortgage land in Queensland was governed by Queensland law, even though the mortgage was executed in New South Wales, the mortgagee was a New South Wales bank, and the place for payment was New South Wales). 28. (1933) 48 CLR 565 at 576. 29. 45 NE 737 (Mass, 1897). 30. Gregg v Perpetual Trustee Co Ltd (1918) 18 SR (NSW) 252; Re Doyle (dec’d); Ex parte Brien v Doyle (1993) 41 FCR 40 at 54; 112 ALR 653. 31. But see Landry v Lachapelle [1937] OR 444; 2 DLR 504. 32. See, for example, Sill v Worswick (1791) 1 H Bl 665 at 690; 126 ER 379 at 392 per Lord Loughborough. (‘[P]ersonal property has no locality. The meaning of that is not that personal property has no visible locality but that it is subject to that law which governs the person of the owner’.) 33. Liverpool Marine Credit Co v Hunter (1886) LR 3 Ch App 479 at 483 per Lord Chelmsford LC; Northwestern Bank v Poynter [1895] AC 56 at 75 per Lord Watson; Dulaney v Merry [1901] 1 KB 536 at 541 per Channell J. 34. Tisand Pty Ltd v Owners of Ship MV ‘Cape Moreton’ (Ex ‘Freya’) (2005) 143 FCR 43; 219 ALR 48 at [130]. 35. [1953] 1 QB 248 at 257. 36. See also Maugham J in Re Anziani [1930] 1 Ch 407 at 421; Slade J in Winkworth v Christie, Manson and Woods Ltd [1980] Ch 496 at 500; Douglas Financial Consultants Pty Ltd v Price [1992] 1 Qd R 243 at 257 per Ambrose J. This is also the virtually unanimous opinion of textwriters: J D Falconbridge, note 12 above, 1954, p 443; Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012, Rule 133, pp 1336–43; P A Lalive, The Transfer of Chattels in the

Conflict of Laws, Clarendon Press, Oxford, 1955, Ch IV; G A Zaphiriou, Transfer of Chattels in Private International Law, F B Rothman, Colorado, 1981, p 49. Only R H Graveson, Conflict of Laws, 7th ed, Sweet & Maxwell, London, 1974, p 463, maintains some reservations in favour of the lex loci actus. 37. (1860) 5 H & N 728; 157 ER 1371. 38. (1870) LR 4 HL 414. 39. Embiricos v Anglo-Austrian Bank [1905] 1 KB 677. 40. [1898] AC 616. 41. (1903) 29 VLR 196. 42. Contrast Dulaney v Merry [1901] 1 QB 536. 43. (1801) 1 East 515; 102 ER 198. 44. [1926] 1 DLR 199. 45. See, for a comparison, the American case of John J Shanahan & Co v George B Landers Construction Co Inc, 266 F 2d 400 (1st Cir, 1959), and read the comments by A A Ehrenzweig, Treatise on the Conflict of Laws, West Publishing Co Inc, New York, 1962, p 624. But contrast Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012, pp 1894–7, which views it as a proprietary matter governed by the lex situs of the goods at the time of the conclusion of the contract. 46. [1892] 1 Ch 238. 47. [1904] 2KB 870. 48. For a full discussion of these cases, see 22.22–22.23 above. 49. [1969] 2 AC 31. 50. [1966] 1 All ER 309 at 338–9. 51. [1969] 2 AC 31 at 86–7 per Lord Reid, at 102 per Lord Morris, at 122–3 per Lord Pearce, at 128 per Lord Wilberforce. 52. See note 51 above, at 120. 53. Compare Olivier v Townes, 2 Mart (La) 93 (1824) where a Louisiana court allowed a creditor to seize an undelivered chattel in Louisiana even though the debtor had sold it in Virginia to a purchaser domiciled there and delivery was not required under the law of Virginia. 54. See, for example, Attorney-General’s Reference (No 1 of 1987) (1987) 47 SASR 152 at 159 per Matheson J. M R Chesterman in ‘Choice of Law Aspects of Liens and Similar Claims in the International Sale of Goods’ (1973) 22 ICLQ 213, argues that the creation of a limited claim such as a pledge or lien should depend in the first place on the proper law of the contract out of which it arises, but its efficacy as against third parties on the lex situs. 55. Personal Property Securities Act 2009 (Cth) s 235(3). 56. Personal Property Securities Act 2009 (Cth) s 235(5). 57. (1907) 4 CLR 1049. 58. [1921] 1 Ch 343. 59. [1937] Ch 423. 60. Sometimes known as Romalpa clauses after the decision in Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676. 61. Personal Property Securities Act 2009 (Cth) s 238(1).

62. (2000) 202 CLR 588; 171 ALR 568. 63. See Ch 34 below. 64. Personal Property Securities Act 2009 (Cth) s 241. 65. North Western Bank v Poynter [1895] AC 56. 66. See 22.20–22.26 above. 67. Colonial Bank v Cady (1890) 15 App Cas 267; Macmillan Inc v Bishopsgate Trust plc (No 3) [1996] 1 All ER 585 at 601 per Staughton LJ. 68. Braun v The Custodian [1944] 3 DLR 412; Brown v Beleggings Societeit NV (1961) 29 DLR (2d) 673; Estate of Hunt v R (1968) 67 DLR (2d) 373. 69. [1996] 1 All ER 585 at 602 per Staughton LJ, 608 per Auld LJ, 617–20 per Aldous LJ. 70. See note 69 above, at 602 per Staughton LJ. 71. See note 69 above, at 608 per Auld LJ. 72. See note 69 above, at 617–20 per Aldous LJ. 73. See, for example, Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012, pp 1295–7. 74. M Ooi, Shares and Other Securities in the Conflict of Laws, Oxford University Press, Oxford, 2003, Ch 6. 75. See note 74, p 95. 76. See note 74, pp 89, 96. 77. See note 74, p 97. 78. See note 74, p 51. 79. Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held With an Intermediary 2006, Arts 4, 5, available at . 80. See, for example, R Potok, ‘Legal Certainty for Securities Held as Collateral’ (1999) 18 Int Fin L Rev 12. 81. M Ooi, note 74 above, 2003, pp 130–44. 82. But see Re Schneider’s Estate, 96 NYS 2d 652 (NY Sur, 1950) where proceeds of a sale of Swiss land were deposited in New York and treated by the New York court as representing the Swiss immovable. But contrast Re Piercy [1895] 1 Ch 83 where the proceeds of a sale of Italian land brought to England were treated as the subject of an English trust, an institution unknown to Italian law. 83. Sale of Goods Act 1895 (SA) s 22. 84. Cammell v Sewell (1860) H & N 728; Winkworth v Christie’s Ltd [1980] Ch 496. 85. Douglas Financial Consultants Pty Ltd v Price [1992] 1 Qd R 243 at 252 per Thomas J; Re Maiden Civil (P & E) Pty Ltd [2013] NSWSC 852 at [61] per Brereton J. 86. Taylor v Lovegrove (1912) 18 ALR (CN) 22; A J Smeman Car Sales v Richardson Pre-Run Cars (1969) 63 QJPR 150. 87. [1992] 1 Qd R 243. 88. Since repealed and replaced by the Personal Property Securities Act 2009 (Cth). 89. See also Davis, ‘Title to Goods Which are Moved Inter-State’ (1970) 2 ACLR 51 at 53–4. 90. Cf Charles T Dougherty Co Inc v Krimke, 144 A 617 (NJ, 1929).

91. That is the position under the Personal Property Securities Act 2009 (Cth): see Re Maiden Civil (P & E) Pty Ltd [2013] NSWSC 852. 92. (1860) H & N 728; 157 ER 1371. 93. Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012, pp 1352– 3. See also A A Ehrenzweig, note 45 above, 1962, pp 632–3. See 15.15 above for consideration of whether the doctrine of renvoi applies generally to movable property. 94. See P A Lalive, note 36 above, 1955, p 173. 95. See Traders Finance Co Ltd v Dawson Implements Ltd (1958) 15 DLR (2d) 515 (British Columbian court construing Alberta statute); Rennie’s Car Sales v Union Acceptance Corp Ltd [1955] 4 DLR 822 (Alberta court construing Ontario statute). 96. (1863) 1 H & M 195; 71 ER 85. 97. [1967] 1 AC 853. 98. (1868) LR 3 Ch App 479. 99. See also P A Lalive, note 36 above, 1955, pp 162–3; and G A Zaphiriou, note 36 above, 1981, pp 180– 1. 100. 187 SE 588 (NC, 1936). 101. See also Fuller v Webster, 95 A 335 (Del Super, 1915); Davis v PR Sales Co, 304 F 2d 831 at 834 (2d Cir, 1962), but contrast: Forgan v Bainbridge, 274 P 155 (Ariz, 1928). See also J L R Davis, ‘Conditional Sales and Chattel Mortgages in the Conflict of Laws’ (1964) 13 ICLQ 53. 102. Personal Property Securities Act 2009 (Cth) ss 238–241. 103. See 32.30–32.40 above. 104. (1886) 17 QBD 309. 105. See 22.20–22.26 above. 106. [1891] 1 Ch 536. 107. [1905] 2 Ch 117. 108. [1927] 1KB 669. 109. See note 108 above, at 686. 110. See note 108 above, at 693. 111. See note 108 above, at 695. 112. See note 108 above, at 700–1. 113. [1930] 1 Ch 407. 114. Swiss Bank Corp v Boehmische Industrial Bank [1923] 1 KB 673; Jabbour v Custodian of Absentee’s Property of State of Israel [1954] 1 All ER 145; Re Helbert Wagg & Co Ltd [1956] Ch 323; Rossano v Manufacturers Life Insce Co [1963] 2 QB 352; Power Curber International Ltd v National Bank of Kuwait [1981] 3 All ER 607; The Ocean Marine Insurance Co Ltd v CSR Ltd [2012] NSWSC 1229 at [82], [91] per Stevenson J. See also Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012, pp 1375–6. 115. The Ocean Marine Insurance Co Ltd v CSR Ltd [2012] NSWSC 1229 at [83]–[84], [91] per Stevenson J. 116. Dicey & Morris on the Conflict of Laws, 11th ed, Stevens, London, 1987, p 963. The matter is now governed in the United Kingdom by Art 12 of the Rome Convention on the Law Applicable to

Contracts, which also applies the law governing the contract between assignor and assignee: Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012, pp 1358–60. This endorsement by international convention can be seen as supporting the Dicey-Morris-Collins view. 117. See M Moshinsky,‘The Assignment of Debts in the Conflict of Laws’ (1992) 109 LQR 591 at 597–609, arguing in favour of the lex situs and against the proper law; The Ocean Marine Insurance Co Ltd v CSR Ltd [2012] NSWSC 1229 at [84], [91] per Stevenson J. 118. (1907) 4 CLR 1049. 119. Since Haque v Haque (No 2) (1965) 114 CLR 98, a mortgage debt is regarded as a movable: see 32.12 above. 120. (1907) 4 CLR 1049 at 1076 per Isaacs J. 121. See 33.29 above for consideration of where a person is ‘located’ for these purposes. 122. The Ocean Marine Insurance Co Ltd v CSR Ltd [2012] NSWSC 1229 at [87], [91] per Stevenson J. 123. [1954] 1 All ER 145 at 157. 124. Bondholders Security Corp v Manville [1933] 4 DLR 699; Charron v Montreal Trust Co (1958) 15 DLR (2d) 240. 125. Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012, pp 1363– 4; R H Graveson, n 36 above, 1974, pp 476–7. 126. [1982] AC 679. 127. For the same principle in Australian law, see Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386; 229 ALR 58. In Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; 268 ALR 12, the High Court held that a restitutionary claim for moneys had and received is assignable if the assignee has a genuine commercial interest in the restitutionary rights. 128. (1895) 21 VLR 171. 129. A A Ehrenzweig, note 45 above, 1962, pp 638–9. 130. Republica de Guatemala v Nunez [1927] 1 KB 669. See 33.59 above. 131. Norton v Florence Land and Public Works Co (1877) 7 Ch D 332. 132. Hockey v Mother o’Gold Consolidated Mines Ltd (1903) 29 VLR 196. 133. (1867) LR 2 Ch App 282. 134. [1992] 1 Qd R 243 at 250 per Thomas J. See 33.45 above. 135. Personal Property Securities Act 2009 (Cth) s 55(3). See, for example, Re Maiden Civil (P & E) Pty Ltd [2013] NSWSC 852. 136. Personal Property Securities Act 2009 (Cth) s 55(4), (5). 137. Personal Property Securities Act 2009 (Cth) s 55(2). 138. See 33.36 above. 139. Personal Property Securities Act 2009 (Cth) s 240(4). 140. Personal Property Securities Act 2009 (Cth) s 240(5). 141. Personal Property Securities Act 2009 (Cth) s 77(3). 142. [1981] AC 221. 143. Todd Shipyards Corp v Altema Compania Maritima SA: The Ioannis Daskalelis [1974] SCR 1248; Marlex Petroleum Inc v Har Rai [1987] 1 SCR 57.

144. Morlines Maritime Agency Ltd v M/V Skulptor Vuchetich [1997] FCA 432. The Halcyon Isle has also been followed in New Zealand (The Betty Ott v General Bills Ltd [1992] 1 NZLR 655; ABC Shipbrokers v The Offi Gloria [1993] 3 NZLR 576; Fournier v The Margaret Z [1999] 3 NZLR 111) and South Africa (The Andrico Unity 1989 (4) SA 325). 145. (2000) 203 CLR 503; 172 ALR 625. 146. M Davies & K Lewins, ‘Foreign Maritime Liens: Should they be Recognised in Australian Courts?’ (2002) 76 ALJ 775. 147. See 33.56–33.66 above. 148. (1855) 10 Moo PC 1; 14 ER 389. 149. [1905] 2 Ch 117. 150. See note 149 at 122. 151. (1908) 5 CLR 615. 152. Since Haque v Haque (No 2) (1965) 114 CLR 98, the interest would now be regarded as a movable: see 32.12 above. 153. (1908) 5 CLR 615 at 634 per Barton J. See also Levy v Reddy [2009] FCA 63 at [12] per Collier J. 154. Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012, pp 1363– 4. 155. [1927] 1 KB 669 at 684. 156. See note 155 at 693.

[page 770]

Chapter 34

Trusts Introduction 34.1 Trusts can be created by inter vivos settlement by a settlor on a trustee, by declaration of trust, by testamentary disposition to a trustee, or by operation of law. Conflicts issues can arise in connection with the transaction that vests the assets in the trustee, the validity and effect of the trust itself, and the administration of the trust. At common law, the conflicts rules in relation to trusts are relatively uncertain. Authority is meagre and many ancient cases reflect a pre-occupation with institutions such as marriage settlements, which have limited relevance today.

The Hague Trusts Convention 34.2 The position has been clarified by the Hague Convention on the Law Applicable to Trusts and on their Recognition of 1984 (the Convention), which was ratified by Australia in the Trusts (Hague Convention) Act 1991 (Cth) and came into force on 1 August 1992, initially between Australia, Italy and the United Kingdom. It is now in force also in Canada,1 Liechtenstein, Luxembourg, Malta, Monaco, the Netherlands, San Marino, Hong Kong and Switzerland. Unlike other implementations of international conventions, the Act does not seek to re-enact the terms of the Convention, but simply provides in s 6 that the Convention (which is a schedule to the Act) shall have the force of law. By s 4, the Act extends to the external territories. The Convention does not apply as between the states and territories of Australia.2 However, as Prior J pointed out in In the Estate of Webb; Webb v Rogers,3 an Australian court should hesitate long before formulating a common law rule that differs from those in the Convention.

[page 771] 34.3 Although the Convention has only been ratified so far by the countries mentioned above, it is a universal convention; that is, its rules are to be applied whether the trust is connected with a convention country or not, unless a reservation to the contrary is made in accordance with Art 21. Australia has not made such a reservation. By Art 22 the Convention applies, in the absence of a reservation to the contrary, to trusts regardless of the date on which they were created.4 Again, Australia has not made such a reservation. 34.4 The purpose of the Convention is to specify the law applicable to trusts and their recognition.5 Chapter II deals with the applicable law and Chapter III deals with recognition. The fact that the institution of the trust is a peculiarly common law development unknown to the civil law (except where introduced by statute, as in Liechtenstein), means that Chapter II has primary significance in relation to common law countries. If the law designated by Chapter II does not know the institution of the trust, the Convention cannot apply.6 However, Chapter III enables civil law countries to recognise and give effect to trusts where the proper law of the trust recognises the institution. 34.5 By Art 2 the term ‘trust’ is defined to include trusts created inter vivos or by testamentary disposition, whereby the trust assets constitute a separate fund and are not part of the trustee’s own estate, and the trustee (or a person on behalf of the trustee) has title to the assets with the power to manage and control them in accordance with the terms of the trust for which the trustee is accountable by law. The reservation by the settlor of certain rights and powers—for example, the power of appointment—and the fact that the trustee may also be a beneficiary of the trust, is not necessarily inconsistent with the existence of a trust. The definition captures not only the common law trust but also civil law institutions that have those core characteristics.7 34.6 The Convention applies only to trusts which are created voluntarily and evidenced in writing.8 This captures an orally declared trust where there is a subsequent written confirmation or record, even if the declarant does not sign the written record. But implied, resulting and constructive trusts that arise or are imposed by operation of law and are in no sense voluntarily created are outside the Convention.9 This does not exclude from the convention all implied and constructive trusts, as some—such as a resulting trust arising where a trustee continues to hold property after the exhaustion of an express trust, a constructive trust arising from the operation of mutual wills, and a constructive trust arising

from a specifically enforceable contract—are voluntarily created.10 [page 772]

The Assignment 34.7 In the usual transaction that leads to the creation of a trust, the owner of property conveys the legal title to that property to trustees to be held in trust for designated beneficiaries upon the terms and conditions set out in the trust agreement, deed or will. In some cases, the owner may assume the position of trustee by way of declaration of trust, in which case no assignment is needed. In other cases, a trust may arise or be imposed by operation of law. 34.8 The preliminary question of whether the trust assets have been effectively vested in the trustee by the agreement, deed or will, must be determined according to the choice of law rules applicable to such transaction. The Convention does not apply to such preliminary issues.11 In this respect, there is a distinction between rules that apply to any disposition of property, and rules that apply specifically to the valid creation of a trust, the former being referable to the law governing the relevant transaction (typically, the lex domicilii or the lex situs), but the latter being within the Convention.12 Thus, where rules of forced heirship invalidate the alienation of property at all, rather than transfers on trust, the initial transfer is impugned; this is a “preliminary matter” that falls outside the Convention and is referred to the law of the transaction.13 However, the rule against perpetuities and accumulations is especially concerned with trusts, and is within the Convention; accordingly questions as to whether a settlement is void for contravention of those rules are resolved according to the proper law of the trust.14 34.9 Thus, even where the law applicable to the will or deed does not recognise trusts, it does not follow that a transfer to a trustee is ineffective to create a trust from the perspective of the forum applying the proper law of the trust; the result will depend on whether the applicable law invalidates the transfer simpliciter, or disregards the trusts attached to it. An instance of this is provided by Re Piercy,15 in which a testator domiciled in England settled certain land situated in Italy upon English trustees to be sold and the proceeds invested in English securities to be held for the benefit of his children during their lifetimes with remainders to his grandchildren. Under Italian law, the trusts were not

recognised and the children took absolutely without any remainders over. By the time of the hearing, the trustees had in fact sold some of the Italian land. North J held the trusts declared in the will to be enforceable for the sensible reason that Italian law had apparently not prevented the sale of the land by the trustees nor the transmission of the proceeds to the English trustees. Since thereafter everything to be done under the will was to be done in England, there was no reason to take any further account of Italian law. So far as the unsold land was concerned, North J held that Italian law should govern until it was sold and consequently the income from that land should be paid to the children on the basis that they were absolutely entitled to the exclusion [page 773] of any interest in remainder. The preferable explanation for the decision is that the trust was effectively constituted because there appeared to be no impediment under Italian law to the trustees (in whatever capacity) being empowered to sell the land, and the proper law of the trust was the law of England (where the testator and the beneficiaries were domiciled and the trust was to be administered and its assets invested).

By inter vivos transaction The general rule applicable to an assignment of property inter vivos is that the question of whether the legal title to the property passes depends in the case of immovables and tangible chattels on the lex situs,16 and in the case of intangible property on whatever law governs their assignment.17 For example, if according to that law the settlement is void for incapacity or formally invalid, there will be no effective vesting in the trustee. At common law, an agreement to create a trust is valid as to form if it complies either with the formalities required by the lex loci actus of the agreement,18 or with the formalities prescribed by the proper law of the agreement.19 Difficulties can arise if the law governing the assignment differs from that governing the trust, especially if the former does not recognise the institution of trust. 34.10 Assume, for instance, that a settlor in New South Wales conveys certain land in New Caledonia to trustees to be held on certain trusts. The trust is governed by the law of New South Wales. New Caledonia does not know or

recognise the institution of trusts. The settlor executes a conveyance in a form appropriate to the law of New Caledonia. That law may refuse to recognise the conveyance as effective to pass title, because it sets conditions which the law of New Caledonia does not recognise. In that case, the trust must fail for impossibility, since the trustee has nothing to administer.20 It is a matter for the law governing the trust to determine what the effect of such impossibility will be in relation to the trust.21 But alternatively, New Caledonian law may treat the conveyance as an absolute transfer of title free from any restrictions. That would not affect the validity of the trust from the point of view of New South Wales law. An attempt to enforce the terms of the trust in the courts of New Caledonia would obviously fail. But if the New South Wales court had jurisdiction over the trustees by reason of residence, submission or service out of the jurisdiction, it could compel the trustees to observe the terms of the trust.22 The same principle would apply, a fortiori, if the subject of the trust were not land in New Caledonia but a tangible chattel situated there. [page 774]

By testamentary disposition 34.11 As with a transaction inter vivos, the validity of the testamentary disposition must be tested according to the appropriate choice of law rules.23 If the will is invalid under the applicable law – for want of capacity, or formal invalidity – or if it has been revoked, the trust created by it must fall with it. 34.12 In the case of a gift of movable assets, the law of the testator’s domicile determines the effectiveness of the gift. In Municipality of Canterbury v Wyburn,24 a testator domiciled in Victoria bequeathed certain moneys to the English corporation of Canterbury for the purchase of land in England for charitable purposes. Such a gift, if made by an English testator, would have offended against the English statutes of mortmain. The Privy Council upheld the gift on the ground that a gift of money was a disposition of movable property by a testator domiciled in Victoria. Consequently, the gift was not affected by English law and the Victorian court could direct the executors to perform their duties in accordance with it.25 34.13 In the case of immovables, the effectiveness of the disposition is governed by the lex situs.

The Validity and Administration of the Trust 34.14 Under Art 8 of the Convention, the validity, construction and effects and the administration of the trust shall be governed by the proper law of the trust.

The proper law of the trust 34.15 According to Art 6, a trust shall be governed by the law chosen by the settlor. The reference to the ‘law’ is to the law in force in a country, other than its rules of conflict of laws, and thus excludes renvoi.26 The choice must be express or implied in the terms of the instrument creating or the writing evidencing the trust, interpreted if necessary in the light of the circumstances of the case. In the case of a trust declared orally but evidenced in writing, this necessarily includes the words spoken in the course of creating the trust.27 34.16 The choice may be made expressly in the deed or contract creating the trust or in the will made by the testator. This conforms to the common law position. Following the general principles relating to choice of law in contracts, an express choice of law by the settlor should be respected.28 There is one important limitation on the right of choice: the law chosen must provide for trusts or the category of [page 775] trust involved; otherwise, the choice will be ineffective.29 Furthermore, if the only connections with the legal system chosen are the choice of law, the place of administration and the residence of the trustee, but the other indicators point to a legal system that does not know the institution of the trust, recognition may be refused under Art 13. 34.17 Where there has not been an express choice, a choice of the proper law may be implied from the terms of the instrument creating or the writing evidencing the trust, interpreted, if necessary, in the light of the circumstances of the case. For example, in Saliba v Falzon,30 a testator domiciled in England created testamentary trusts expressed in terms of Australian dollars in favour of an Australian beneficiary, which fell to be administered by Australian testamentary executors. Applying Art 6, Young J of the Supreme Court of New South Wales found an implied intention that the trusts be governed by the law of

New South Wales, that being the part of Australia where the trustees and the beneficiary lived. Plainly there was an implied intention to choose ‘Australian’ law rather than English law (the law of the testator’s last domicile); the intention to choose New South Wales law was by no means so clear, but the selection of the state where the trustees would administer the trusts seems sensible enough. In Berezovsky v Abramovich31 Longmore LJ suggested that considerations relevant to determining the implied proper law include what was said at the time the trust was set up and the matrix within which the agreement was made. The Hague Convention position on implied choice of law also conforms to the common law.32 34.18 If the law chosen does not know the institution of the trust, or no choice is expressed or appears from the terms of the instrument, the proper law is the law with which the trust is most closely connected.33 For ascertaining that law, Art 7 of the Convention identifies four factors of particular relevance:34 (a) the place of administration of the trust designated by the settlor; (b) the situs of the assets of the trust; (c) the place of residence or business of the trustee; and (d) the objects of the trust and the places where they are to be fulfilled. These are also relevant factors at common law. In Lindsay v Miller,35 the settlor was domiciled in Scotland where the deed of trust was drawn up by Scottish solicitors. Of the three trustees one resided in China, another in Melbourne and the third in Western Australia. The trust property consisted of Australian shares, mostly in Victorian companies. The place of administration of the trust was in Melbourne. Lowe J found the proper law of the trust to be Victorian by reason of the place of administration and the situs of the bulk of the trust property. [page 776] In Chellaram v Chellaram,36 the settlor was Indian and the deed had been drawn up in India by an Indian lawyer. The place of administration was London, where two of the original three trustees were resident at the time. The trust property consisted of shares situated in Bermuda. Scott J ultimately did not have to determine the proper law, but it is clear that England would feature prominently, as the intended place of administration and the residence of the

majority of trustees at the time of execution of the settlement.37 In Manoogian v Sonsino,38 the settlor was a citizen of the United Kingdom, domiciled in India, who entered into a settlement agreement with the Armenian Patriarch of Jerusalem to settle litigation in India. The litigation was settled by an agreement executed in England, which instructed an English bank to hold assets in trust. Applying Art 7, Jacob J said that the choice was between English law and Indian law, and concluded that the governing law of the trust was English law. The closest connection was with England, which was where the settlor wanted the trust to be controlled and where the trustee was located. 34.19 The list in Art 7 is not exhaustive of the factors that can be taken into account. As regards trusts created by will, there was at common law substantial authority for the proposition that, in the absence of an express choice, the proper law of the trust was presumed to be the law of the testator’s domicile at the date of death,39 although there was also some authority for applying the law of the place of administration where that place differed from the testator’s last domicile.40 Article 7 of the Convention draws no distinction between trusts inter vivos and testamentary trusts. Nor does it make any reference to the domicile of the testator. Although the list of factors in Art 7 is not intended to be exhaustive, it can be assumed that the factors referred to in Art 7, such as the place of administration, the place where the trust assets are or will be situated and where the objects of the trust are to be fulfilled, will now attract greater weight.41 This is borne out by Saliba v Falzon,42 where Young J concluded that there was an implied choice of New South Wales law as the proper law of the trust, although the testator was domiciled in England at the time of his death,43 and Manoogian v Sonsino,44 where Jacob J held that English law governed [page 777] the trust under Art 7 because the trustee was located in England and the settlor wanted the trust to be controlled from there. In the case of marriage settlements, at common law, there was a rebuttable presumption in favour of the matrimonial domicile.45 This presumption, too, must yield to Art 7 of the Convention. 34.20 One important consideration, when other indicators are equal, may be the

question of validity. In Augustus v Permanent Trustee Co (Canberra) Ltd,46 the trust offended against the rule against perpetuities in the Australian Capital Territory, where the trust fund was situated and the trustee resided, but would be saved from invalidity if s 36 of the Conveyancing Act 1919 (NSW) applied. By finding that the proper law of the settlement was the law of New South Wales, the High Court upheld the validity of the trust. But there must be a substantive connection with the legal system so favoured, for otherwise Art 13 may operate to deny the trust recognition. Moreover, Art 7 establishes an objective test, and in Berezovsky v Abramovich, a preliminary view was expressed that the argument that it permitted a court to avoid selecting a country with no law of trusts, by allowing that fact to displace what would otherwise be the result of applying the objective tests set out in that Article, was probably wrong.47 34.21 Article 9 of the Convention provides that a severable aspect of the trust, particularly matters of administration, may be governed by a different law to that which otherwise governs the trust. 34.22 Although the Convention is silent on the point, the proper law of a settlement should be determined by circumstances as they exist at the time of settlement, and cannot of itself be affected by subsequent changes in the residence or composition of the trustees, the location of the trust assets and the like.48 However, if the original proper law governing the major aspects of the trust permits a change, the law governing the whole of the trust or a severable aspect thereof may be replaced by another law.49 This also conforms to the common law.50 Semble, an intention to replace the governing law may be implied.51

Scope of the proper law 34.23 According to the opening sentence of Art 8, the proper law of the trust ‘shall govern the validity of the trust, its construction, its effects and the administration of the trust’. This settles one highly debated issue at common law, namely whether the administration of a trust was governed by a law different from the proper law of the trust. [page 778] The view that the law governing the administration should be the law of the

place where the trust is to be administered rather than the proper law of the trust where these differed was supported by a number of Australian cases, in which it was held that the power to invest trust assets depends on the law of the place of situation of those assets.52 However, there was also strong support for the view that the administration of the trust should be governed by the proper law of the trust.53 34.24 The supposed dichotomy between ‘administration’ and ‘validity, interpretation and effect’ was called into question by the following remarks, admittedly made obiter, of Scott J in Chellaram v Chellaram:54 As a matter of principle, I find myself unable to accept the distinction drawn by rr 120 and 121 in Dicey-Morris between ‘validity, interpretation and effect’ on the one hand and ‘administration’ on the other hand. The rights and duties of trustees, for example, may be regarded as matters of administration but they also concern the effect of the settlement. The rights of the trustees are enjoyed as against the beneficiaries; the duties of the trustee are owed to the beneficiaries. If the rights of the beneficiaries are to be ascertained by applying the proper law of the settlement, I do not understand how the duties of the trustees can be ascertained by applying a different law, and vice versa. In my judgment, a conclusion that the law of the place of administration of a settlement governs such matters as the rights and duties of the trustees can only be right if that law is the proper law governing the settlement.

In In the Estate of Webb (dec’d);Webb v Rogers,55 a Full Court of the Supreme Court of South Australia had to deal with the estate of a person who died domiciled in the Northern Territory but the trustees of his estate were resident in South Australia, where they carried out the administration of the trust. Since the Convention is not applicable as between the states and territories of Australia, the question arose under the common law. The issue was one of jurisdiction and no member of the court considered it necessary to determine the proper law of the trust or the law governing the administration of the trust. However, Prior J took the trouble to review the authorities and opinions and concluded that the Full Court should accept the clear statement of Scott J in Chellaram v Chellaram.56 Since the authors respectfully agree with Prior J that the law within Australia should be interpreted in conformity with the provisions of the Convention,57 and Art 8 refers the question of administration to the proper law, it can now be safely stated as the law within and outside Australia that questions of administration are governed prima facie by the proper law of the [page 779] trust, unless Art 9 applies, by express or implied stipulation, to make a different

law applicable to matters of administration.58 34.25 As regards other aspects, the Convention largely confirms the common law position. There was never any doubt that the essential validity of a trust inter vivos is governed by its proper law.59 Pursuant to Art 8, the construction of a trust is governed by the proper law of the trust. This is in accordance with the common law.60 34.26 In addition, certain rights and relationships are by Art 8 specifically included within the ambit of the proper law. The list is not to be regarded as exhaustive, but it enumerates: (a) the appointment, resignation and removal of trustees, the capacity to act as a trustee, and the devolution of the office of trustee; (b) the rights and duties of trustees amongst themselves; (c) the right of trustees to delegate in whole or in part the discharge of their duties or the exercise of their powers; (d) the power of trustees to administer or to dispose of trust assets, to create security interests in the trust assets, or to acquire new assets; (e) the powers of investment of trustees; (f)

restrictions upon the duration of the trust, and upon the power to accumulate the income of the trust;

(g) the relationships between the trustees and the beneficiaries including the personal liability of the trustees to the beneficiaries; (h) the variation or termination of the trust; (i)

the distribution of the trust assets; and

(j)

the duty of trustees to account for their administration.

34.27 In Tod v Barton,61 Lawrence Collins J said that in his judgment, there could be no doubt that the question of the ability of the beneficiaries to end or reconstitute the trust is referred by Art 8 to the law specified by Art 6 or identified by Art 7. 34.28 Capacity is not expressly mentioned in Art 8. In relation to wills, it is excluded from the scope of the Convention by Art 4. By analogy, the capacity to enter into a settlement inter vivos generally (as distinct from the specific capacity to settle on a trustee) should be regarded as a preliminary issue and outside the scope of the convention, whereas the specific capacity to create a trust is

governed by the proper law of the trust determined in accordance with Arts 6 or 7.62 34.29 Despite Art 8(h), the statutory jurisdiction of a court of the forum to vary interests in property held on trust may apply regardless of the law governing the [page 780] trust. In Salkeld v Salkeld (No 2),63 Perry J of the Supreme Court of South Australia held that a trust governed by the law of New South Wales but administered in South Australia could be varied on application of the trustee under s 59C of the Trustee Act 1936 (SA), even though there was no statutory analogue of s 59C in New South Wales. Ungoed-Thomas J had previously come to a similar conclusion in England in Re Ker’s Settlement Trusts,64 holding that a trust governed by the law of Northern Ireland but administered in England could be varied by operation of s 1 of the Variation of Trusts Act 1958, although that section did not apply to Northern Ireland and there was no equivalent provision forming part of the law of Northern Ireland. While, according to Art 8 of the Convention, variation of the trust is governed by the proper law of the trust, as the learned editors of Dicey, Morris & Collins have pointed out,65 this is a choice of law rule and will not affect the jurisdiction of an English (and South Australian court) to vary a trust governed by foreign law if the relevant statute authorises it to do so.66 But those authors also observe that an English court would hesitate to apply its statutory power to a trust governed by foreign law in cases where the Convention applied,67 and it may be expected that an Australian court would apply similar restraint in such a case. 34.30 Similarly, the jurisdiction of a court of matrimonial causes to vary a nuptial settlement is not affected by the Convention, as the court applies the lex fori,68 and in addition because under Art 15 the proper law of the trust does not override the mandatory rules of the jurisdiction whose substantive domestic law is applicable according to the forum’s choice of law rules.69

Mandatory laws 34.31 Since trusts have often been created to avoid or evade laws, especially taxation, matrimonial property and inheritance laws that might otherwise be applicable, the Convention provides specifically that laws of a mandatory nature

will be applicable notwithstanding the provisions of the Convention. Those laws fall into three categories. 34.32 In the first category are laws of the forum that must be applied even to international situations regardless of rules of conflict of laws. An example is seen in Sch 2 s 67 of the Australian Consumer Law contained in Sch 2 of the Competition and Consumer Act 2010 (Cth), which applies certain provisions of that statute designed to protect consumers notwithstanding the choice of a legal system outside Australia as the proper law. Article 16, para 1, of the Convention will permit such [page 781] laws to apply to trust arrangements that have their closest connection with Australia, despite any choice of law. 34.33 Secondly, the second paragraph of Art 16 goes further by providing that in exceptional circumstances, effect may also be given to similar rules of another state that has a sufficiently close connection with the case. This is a reference to a state that neither supplies the proper law nor is the forum. As indicated in relation to contracts, Australian courts have at common law only given effect to the mandatory laws of such third countries in very limited circumstances.70 Australia has not made a reservation in respect of this provision, but it remains to be seen what effect, if any, Australian courts will give this provision expressed as it is in permissive, rather than mandatory, form. 34.34 Thirdly, there are certain areas where by virtue of Art 15 the mandatory law of the legal system made relevant to the case at hand by the choice of law rules of the forum (which may include the lex fori)71 will prevail over the provisions of the Convention. They include, without being exhaustive: (a) the protection of minors and incapable persons; (b) the personal and proprietary effects of marriage; (c) succession rights, testate and intestate, especially the indefeasible shares of spouses and relatives; (d) the transfer of title to property and security interests in property; (e) the protection of creditors in matters of insolvency; and

(f)

the protection, in other respects, of third parties acting in good faith.

If recognition of the trust is prevented by the application of this provision, the court must try to give effect to the objects of the trust by other means. In C v C (Ancillary Relief: Nuptial Settlement),72 the English Court of Appeal held that s 24(1)(c) of the Matrimonial Causes Act 1973 (United Kingdom) which empowered the court to vary nuptial settlements was a mandatory provision of the law of the forum that was made applicable to the case by its own conflicts rules and which could not be derogated from by voluntary act under Art 15, the list in which was not exclusive; that in any event Art 15(b) was sufficiently wide to include the power to vary nuptial settlements;73 and, accordingly, that the claim of a divorced wife for variation of a trust was excepted from the operation of the Convention and was governed by English law rather than the law of Jersey, which was the law governing the trust. 34.35 Finally, the provisions of the Convention may be disregarded under Art 18 when their application would be manifestly incompatible with public policy. Furthermore, in relation to taxation matters, Art 19 provides that nothing in the Convention shall prejudice the powers of states in fiscal matters. [page 782]

Jurisdiction 34.36 The Convention does not deal with the question of jurisdiction in respect of the administration of trusts and trust assets. 34.37 At common law, the jurisdiction of an Australian court in respect of the administration of a trust and its assets depends on the exercise of jurisdiction in personam over the trustees. If the trustees are served within the jurisdiction, the court can exercise jurisdiction in respect of the trust even though its proper law is that of another country and most, or even all, its assets, whether movable or immovable, are situated abroad.74 Provided it has jurisdiction it can order the furnishing of accounts concerning a foreign trust,75 and even replace the trustees.76 It can also enforce a constructive trust over land situated abroad by ordering the constructive trustee to convey the land to the beneficiary.77 34.38 Personal jurisdiction over trustees resident abroad can also be gained by service out of the jurisdiction if authorised by statute. Within Australia any

originating process issued out of an Australian court can be served throughout Australia and its territories under s 15(1) of the Service and Execution of Process Act 1992 (Cth).78 In all Australian jurisdictions provision is made for the service out of Australia where the proceedings are for the execution of a trust that is governed by the law of the forum as to property situated within the forum.79 In the High Court, the Federal Court, New South Wales and Tasmania, the provisions are not limited to property within the jurisdiction.80

Recognition of Trusts 34.39 Chapter III of the Convention deals with the recognition of trusts. It imposes an obligation, particularly on states parties that do not know the institution of the trust such as Italy, to give effect to the separation between beneficial and legal ownership that is peculiar to the trust. Article 11 provides first of all that a trust validly created in accordance with the law specified in accordance with Arts 6 or 7 shall be recognised as a trust. Such recognition shall imply as a minimum that the trust property constitutes a separate fund, that the trustee may sue and be sued in [page 783] his or her capacity as a trustee, and that he or she may appear or act in this capacity before a notary or any person acting in an official capacity. In so far as the law applicable to the trust requires or provides, recognition shall imply, in particular: (a) that personal creditors of the trustee shall have no recourse against the trust assets; (b) that the trust assets shall not form part of the trustee’s estate upon his insolvency or bankruptcy; (c) that the trust assets shall not form part of the matrimonial property of the trustee or his spouse nor part of the trustee’s estate upon his death; (d) that the trust assets may be recovered when the trustee, in breach of trust, has mingled trust assets with his own property or has alienated trust assets. However, the rights and obligations of any third party holder of the assets shall remain subject to the law determined by the choice of law rules of the

forum. Furthermore, by Art 12 the trustee is to be entitled, in principle, to register any assets in his or her capacity as trustee or in such other way that the existence of the trust is disclosed. 34.40 Recognition of a trust may be refused under Art 13 where the law chosen or indicated as governing law has less connection with the trust than a state that does not know the institution of the trust or the category of trust involved. Hence, setting up an Italian family trust in England will not be effective merely by specifying English law as the applicable law and appointing an English person as the trustee to administer the trust from London, if all the assets and the beneficiaries are in Italy. Recognition is also subject to the operation of mandatory laws and public policy previously discussed. 34.41 In so far as common law rules are more favourable than those of the Convention to the recognition of trusts, they continue to apply.81

Trusts Created by Operation of Law 34.42 Trusts created by operation of law are not covered by the Convention, although it is possible under Art 20 for a contracting state to declare at any time that the provisions of the Convention will be extended to trusts declared by judicial decisions. Australia has not yet done so. There is no facility to extend the Convention to trusts created by statute.82 34.43 There was very little authority at common law. In the Victorian case of Twaddell v New Oriental Bank Ltd,83 a husband domiciled in Victoria had taken out a policy of life insurance on his life for the benefit of his wife and children in Scotland with a Scottish company. Under the Married Women’s Property Act 1890 (Vic) a policy expressed to be for the benefit of one’s wife and children created a trust for [page 784] the benefit of such persons. The husband later pledged the policy with the defendant bank as security for an overdraft. Hodges J applied the Victorian

statute as part of the lex loci actus of the pledge transaction and therefore held that the pledge was ineffective. This decision could be viewed as authority for the proposition that the creation of a statutory trust is a matter of title rather than contract and as such is governed by the law governing the title to property. On the other hand, the decision is more likely to be explained simply as a decision of the forum delimiting the ambit of a local statute.84 34.44 In Damberg v Damberg,85 a husband transferred parcels of land in Germany to his son and his daughter. He apparently intended to avoid paying German capital gains tax, as he consulted an accountant about the tax implications of the transfer before making it. After the transfer, the husband constructed buildings on the German land at his own expense, but the rental income from those buildings was declared in the children’s tax returns, not those of their father. The husband and his wife later jointly purchased farming properties in Australia, using funds from dealings with the German properties owned by the children. The family relationships then deteriorated badly.86 The wife instituted proceedings against the husband in the Family Court of Australia in relation to the Australian farming properties. The children intervened, claiming to have prior equitable interests derived from the fact that the purchase of the Australian properties had been funded by money derived from the German properties, which were in their names. The New South Wales Court of Appeal87 held that the children held the German properties on resulting trust for their father, who had successfully rebutted the presumption of advancement that arises when a parent transfers property to a child. In coming to this conclusion, the court applied Australian law, without articulating the reason for doing so. It cannot be said that the decision was made without regard to private international law principles, because the court went on to consider whether the husband was precluded from relying on the resulting trust because it was for the unlawful purpose of avoiding German capital gains tax. There was no evidence of the anti-avoidance provisions of German capital gains tax law, but the court refused to make the usual assumption that the foreign law was the same as the law of the forum.88 There being no evidence that the transfers of the German properties were unlawful by German law, there was no reason not to enforce the resulting trust in the father’s favour. Because the Australian properties had been purchased with [page 785]

funds from the German properties held on trust for the father, the court held that the children had no beneficial interest in them. 34.45 Perhaps the best justification that can be found for the court’s approach in Damberg is that Australian law was applied as the lex fori. There is a venerable principle that equity acts in personam on the conscience of an individual.89 Hence, as Holland J put it in National Commercial Bank v Wimborne:90 The Equity court … has jurisdiction over persons within and subject to its jurisdiction to require them to act in accordance with the principles of equity administered by the court wherever the subject matter … In short, if the defendant is here, the equities arising from a transaction to which he is a party as ascertained by New South Wales law [the lex fori] and the equitable remedies provided by that law will be applied to him.

This principle provides the justification for the practice of making Mareva orders restraining a defendant within the jurisdiction from dealing with assets outside the country.91 It would also justify application of Australian equity principles to the children present before the court in Damberg. 34.46 Nevertheless, there is room for doubt whether it is still appropriate invariably to apply the lex fori in such cases.92 There was no finding in Damberg about the domicile of any of the parties, but it seems fairly clear that all of the family members were domiciled in Germany at the material time.93 If that is right, the case turned on a transfer in Germany of German immovable property from one German domiciliary (the father) to two others (the children). There are obvious reasons for thinking that German law should have governed the question whether the transfer was absolute, preferably as the lex situs of the immovable property, but also possibly as the lex domicilii of the donor or even the lex loci actus of the transfer transaction. 34.47 In Paramasivam v Flynn94 the Full Federal Court, while accepting that where a court of equity was prepared to assume personal jurisdiction over parties, it generally applied its own principles and not foreign law to determine whether a personal equity existed between them, recognised that there were exceptions, such [page 786] as where the source of the equitable obligation was a contract governed by a law other than the law of the forum. In addition, the Court observed that where the circumstances giving rise to the asserted duty or the impugned conduct (or some

of it) occurred outside the jurisdiction, the attitude of the law of the place where the circumstances arose or the conduct was undertaken is likely to be an important aspect of the factual circumstances by reference to which the Court determines whether a fiduciary relationship existed and, if so, the scope and content of the duties to which it gave rise. 34.48 In Lightning v Lightning Electrical Contractors Ltd 95, where Mr Lightning who was resident in England claimed that a property in Scotland acquired in the name of the company, also resident in England, for which he provided the purchase price, was held on resulting trust for him, the court held that English law was applicable, on the basis that the relationship between the parties was based in England. In Luxe Holding Ltd v Midland Resources Holding Ltd,96 English law was held applicable to make a vendor, who in breach of a specifically enforceable contract resold to a third party, accountable to the original purchaser, on the basis that the parties had voluntarily subjected themselves to English rights and remedies. 34.49 Professor Yeo has contended for an alternative approach, adopting as a starting point the law of the obligation rather than the equitable nature of the relief sought.97 In Rickshaw Investments Ltd v Baron von Uexhell,98 the Court of Appeal of the Supreme Court of Singapore, while not wholly accepting Professor Yeo’s approach, agreed that the “lex fori only” approach should not be maintained, and that in a case where equitable duties arose “from a factual matrix where the legal foundation is premised on an independent established category such as contract or tort, the appropriate principle in so far as the choice of law is concerned ought to be centred on the established category concerned.” 34.50 These developments were considered by the New South Wales Court of Appeal in Murakami v Wiryadi,99 in which the appellant was the daughter of a deceased man whose divorce in Indonesia had concluded but whose related property settlement proceedings had not been finalised. The appellant claimed that certain New South Wales properties and bank accounts were held on constructive or alternatively resulting trust for her, as they were not disclosed in the Indonesian divorce proceedings. Spigelman CJ, with whom McColl and Young JJA agreed, suggested that when determining whether a law of the forum should govern the existence of an equitable right or remedy, the focus should be on the underlying relationship between the parties rather than on whether an equity exists.100 [page 787]

The Court considered circumstances in which the governing law of a fiduciary relationship is not the lex fori, such as where the source of the fiduciary obligation was a contract governed by law other than by the law of the forum, and the importance of considering the attitude of the law of the place where the circumstances arose or the conduct was undertaken.101 His Honour held that the question of whether a constructive or resulting trust could be found in the proceedings would be influenced, if not determined, by the law of the implied marital contract, which was Indonesian law.102 34.51 This divergence from the ‘lex fori only’ approach was discussed subsequently by the New South Wales Court of Appeal in Nicholls v Michael Wilson and Partners Ltd,103 where it was concluded that, as the proper law of the two contracts of employment there in issue was the law of New South Wales, there was no occasion for an exception to the lex fori only principle. 34.52 From those cases it can now be proposed that the present state of the law in Australia is that the lex fori generally governs the question whether the forum will impose a constructive or resulting trust,104 but where the relevant equitable obligation is said to arise from a contract governed by law other than the law of the forum, the proper law of the contract will govern;105 and in any event, where circumstances giving rise to the asserted obligation occurred outside the jurisdiction, the attitude of the law of the place where they occurred is likely to be an important aspect of the factual circumstances by reference to which the Court determines whether an equitable obligation existed and, if so, the scope and content of the obligation.106 _________________________ 1.

But only for Alberta, British Columbia, New Brunswick, Newfoundland, Prince Edward Island and Saskatchewan, and not for Ontario, Quebec, Nunavut, the Northwest Territories or the Yukon Territory.

2.

Trusts (Hague Convention) Act 1991 (Cth) s 7(1). See also s 7(2), which permits the states and territories to adopt the Convention as between them. This was recommended by the Australian Law Reform Commission, ALRC Report No 58, Choice of Law, 1992, [9.38].

3.

(1992) 57 SASR 193 at 204.

4.

See, for example, Saliba v Falzon [1998] NSWSC 302 per Young J, in which the Convention was applied to a trust created by will before the Convention came into force.

5.

Hague Convention on the Law Applicable to Trusts and on their Recognition, Art 1.

6.

See note 5 above, Art 5.

7.

Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012, [29-003], p 1486.

8.

See note 5 above, Art 3.

9.

Dicey, Morris & Collins (2012), [29-006], p 1488. In Damberg v Damberg (2001) 52 NSWLR 492, the

New South Wales Court of Appeal considered a resulting trust in relation to German land without reference to the Convention. 10. Dicey, Morris & Collins (2012), [29-006], p 1488. 11. See note 5 above, Art 4. 12. Dicey, Morris & Collins (2012), [29-013], p 1492; Re Barton’s Estate, Tod v Barton [2002] EWHC 264 (Ch); Saliba v Falzon [1998] NSWSC 302. 13. Dicey, Morris & Collins (2012), [29-013], p 1492. 14. Saliba v Falzon [1998] NSWSC 302; Dicey, Morris & Collins (2012), [29-013], p 1492. 15. [1895] 1 Ch 83. 16. See 33.7–33.16. 17. See 33.24–33.30. 18. Guepratte v Young (1851) 4 De G & Sm 217; 64 ER 804. 19. Van Grutten v Digby (1862) 31 Beav 561; 54 ER 1256. 20. Re Pearse’s Settlement [1909] 1 Ch 304. 21. Municipality of Canterbury v Wyburn [1895] AC 89 at 96. 22. Chellaram v Chellaram [1985] Ch 409; Webb v Webb [1992] 1 All ER 17. 23. See 39.4–39.14. 24. [1895] AC 89. 25. See also Re Blyth [1997] 2 Qd R 567, where Thomas J tested the validity of a trust power in a will by the law of the last domicile of the deceased. 26. See note 5 above, Art 17. 27. Berezovsky v Abramovich [2010] EWHC 647 (Comm), at [177] (reversed but not on this point [2011] EWCA Civ 153). 28. Augustus v Permanent Trustee Co (Canberra) Ltd (1971) 124 CLR 245 at 252 per Walsh J.As to wills, see Re Lord Cable [1977] 1 WLR 7 at 20 per Slade J. 29. See note 5, art 6. 30. [1998] NSWSC 302. 31. [2011] EWCA Civ 153 at [108]. 32. For an example of the common law position, see Augustus v Permanent Trustee Co (Canberra) (1971) 124 CLR 245. 33. See note 5 above, Art 6, second paragraph, Art 7. 34. Singh v Singh [2006] WASC 182 at [74]-[75]. 35. [1949] VLR 13. 36. [1985] Ch 409. 37. See note 36 above, at 425. For an example of the application of these factors in deciding between the law of two states of Australia, see Ballard v A-G (Vic) (2010) 30 VR 413. 38. His Beatitude Archbishop Torkom Manoogian, Armenian Patriarch of Jerusalem v Sonsino [2002] EWHC 1304 (Ch). 39. Municipality of Canterbury v Wyburn [1895] AC 89; Jewish National Fund Inc v Royal Trust Co

(1966) 53 DLR (2d) 577; Iveagh v IRC [1954] Ch 364; Re Lord Cable [1977] 1 WLR 7 at 20. 40. Fordyce v Bridges (1848) 2 Ph 497; Gleeson v Phelan (1914) 15 SR (NSW) 30 at 35–6 per Harvey J; Re Mitchner dec’d [1922] St R Qd 252. 41. This conclusion is supported by the remarks of Prior J in In the Estate of Webb (dec’d);Webb v Rogers (1992) 57 SASR 193 at 201–2. 42. [1998] NSWSC 302. 43. Young J did not need to refer to the Art 7 factors, having found an implied choice for the purposes of Art 6. 44. His Beatitude Archbishop Torkom Manoogian, Armenian Patriarch of Jerusalem v Sonsino [2002] EWHC 1304 (Ch). 45. Re Fitzgerald [1904] 1 Ch 573 at 587. 46. (1971) 124 CLR 245. However, a ‘preliminary view’ was put forward in Berezovsky v Abramovich [2010] EWHC 647 (Comm) at [121] and [183] that Art 7 does not enable a court to avoid the selection of a non-trust state by allowing that fact to displace what would otherwise be the result of applying the objective tests in the article. 47. Berezovsky v Abramovich [2010] EWHC 647 (Comm), at [121], [183] (reversed but not on this point [2011] EWCA Civ 153). 48. See Art 10; and cf Iveagh v IRC [1954] Ch 364; Devos v Devos (1970) 10 DLR (3d) 603; Chellaram v Chellaram [1985] Ch 409. 49. See note 5 art 10. 50. Duyvewaardt v Barber (1992) 43 RFL (Can) (3rd) 139. 51. See note 50 above. 52. Re Tyndall [1913] SALR 39; In the Will of Gibson dec’d [1922] VLR 715 at 719; Re Kay [1927] VLR 66 at 69. But see the analysis of Re Tyndall by Prior J in In the Estate of Webb; Webb v Rogers (1992) 57 SASR 193 at 203. 53. Sykes and Pryles, Australian Private International Law, 3rd ed, LBC, Sydney, 1991, pp 716–17; Graveson, Conflict of Laws, 7th ed, Sweet and Maxwell, 1974, p 538. See also Wallace, ‘Choice of Law for Trusts in Australia and the Uni ted Kingdom’ (1987) 36 ICLQ 454 at 475–82. 54. [1985] Ch 409 at 432. See also Re Hewitt [1915] 1 Ch 228. 55. (1992) 57 SASR 193. 56. See note 55 above, at 203. 57. As was recommended by the Australian Law Reform Commission, Report No 58, Choice of Law (1992), [9.38]. 58. Canadian case law continues to distinguish between the law governing the administration of trusts and the law governing validity of trusts, see Webster-Tweel v Royal Trust Corporation of Canada, 2010 ABQB 139. 59. Lindsay v Miller [1949] VLR 13; Augustus v Permanent Trustee Co (Canberra) Ltd (1971) 124 CLR 245. 60. Perpetual Executors and Trustees Assn of Australia Ltd v Roberts [1970] VR 732. 61. [2002] EWHC 264 (Ch) at [37]. 62. Dicey, Morris & Collins (2012), [29-015], p 1493. 63. [2000] SASC 296 at [26]. Perry J had previously expressed the same view in Salkeld v Salkeld (No 1)

[2000] SASC 85 at [26], when considering an application to transfer the proceedings to New South Wales under the Jurisdiction of Courts (Cross Vesting) Act 1987 (SA) s 5. 64. [1963] 1 Ch 553. 65. Dicey, Morris & Collins (2012), [29-061], p 1512. 66. This is expressly envisaged by Art 16, para 1, discussed at 34.32. 67. Referring to Re Paget’s Settlement [1965] 1 WLR 1046 at 1050; and Re Rabaiotti 1989 Settlement [2000] ITELR 763 (Royal Court of Jersey). 68. C v C (Ancillary Relief: Nuptial Settlement) [2004] EWCA Civ 1030, [2005] Fam 250 at [30]-[31]; Radmacher v Granatino [2010] UKSC 42, [2011] 1 AC 534 at [103]. This was the position at common law: see Nunneley v Nunneley (1890) 15 PD 186; Forsyth v Forsyth [1891] P 363. 69. See 34.34. 70. See 19.17. 71. Hayton,‘The Hague Convention on the Law Applicable to Trusts and on their Recognition’ (1987) 36 ICLQ 260 at 277; Hayton, “The Hague Convention on trusts: a Little is Better than Nothing but why so Little?” (1994) 3 JITCP 23 at 26; Cheshire, North & Fawcett (2008), p 1324-5; C v C (Ancillary Relief: Nuptial Settlement) [2004] EWCA Civ 1030, [2005] Fam 250 at [33]-[41]. 72. [2005] Fam 250. 73. C v C(Ancillary Relief: Nuptial Settlement) [2004] EWCA Civ 1030, [2005] Fam 250 at [42]; see also Minwalla v Minwalla [2004] EWHC 2823 (Fam), [2005] 1 FLR 771; see Dicey, Morris & Collins (2012), [29-062] and fn 241, p 1513. 74. Orr-Ewing v Orr-Ewing (1883) 9 App Cas 34; Chellaram v Chellaram [1985] Ch 409; In the Estate of Webb; Webb v Rogers (1992) 57 SASR 193. 75. In the Estate of Webb; Webb v Rogers (1992) 57 SASR 193. 76. Chellaram v Chellaram [1985] Ch 409. 77. Webb v Webb [1992] 1 All ER 17. See also Nudd v Taylor [2000] QSC 344. 78. See Chapter 4. 79. FCR r 10.42 (this ground of jurisdiction also applies to proceedings in the High Court of Australia: see High Court Rules 2004 r 9.07.1); CPR (ACT) r 6501(1)(f); UCPR 2005 (NSW) Sch 6 para (p); SCR (NT) r 7.01(1)(e); UCPR 1999 (Qld) r 124(1)(f); SCCR (SA) r 40(1)(g); SCR 2000 (Tas) r 147A(1)(q); SC(GCP)R (Vic) r 7.01(1)(e); RSC (WA)O 10 r 1(1)(d). 80. FCR r 10.42 (this ground of jurisdiction also applies to proceedings in the High Court of Australia: see High Court Rules 2004 r 9.07.1); UCPR 2005 (NSW) Sch 6 para (p); SCR 2000 (Tas) r 147A(1)(q). 81. See note 5 above, Art 14. 82. Piatek v Piatek [2010] QSC 412 at [125]. 83. (1895) 21 VLR 171. 84. See Latham,‘The Creation and Administration of a Trust in the Conflict of Laws’ (1953) 6 Current L Prob 176 at 183. 85. (2001) 52 NSWLR 492. 86. Heydon JA lamented the bitterness with which the dispute was fought between the family members and their unwillingness to settle: see note 85 above, at 495, at [3]. 87. The decision of the trial judge in the Family Court of Australia was appealed to the Court of Appeal of New South Wales, rather than a Full Court of the Family Court of Australia, because the Family

Court’s jurisdiction had been derived from the Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW) s 4(2). In Re Wakim; Ex parte McNally (1999) 198 CLR 511, the High Court held that s 4(2) could not confer jurisdiction on federal courts such as the Family Court. The Federal Courts (State Jurisdiction) Act 1999 (NSW) s 6 deemed ineffective judgments of this kind to have been State Supreme Court judgments. For further details of the demise of the cross-vesting scheme, see Chapter 6. 88. See Chapter 17. 89. See White, ‘Equitable Obligations in Private International Law’ (1986) 11 Syd LR 92; Barnard, ‘Choice of Law in Equitable Wrongs: A Comparative Analysis’ (1992) 51 Camb LJ 474 at 486–95; Briggs,‘The Unrestrained Breach of an Anti-suit Injunction: a Pause for Thought’ [1997] LMCLQ 90 at 93–4. For a survey of the law, see OZ-US Film Productions Pty Ltd (in liq) v Heath [2000] NSWSC 967 at [13]– [23] per Young J. 90. (1978) 5 BPR 11,958 at 11,982. See also United States Surgical Corporation v Hospital Products International Pty Ltd [1982] 2 NSWLR 766 at 796–797, per McLelland J. 91. See, for example, National Australia Bank Ltd v Dessau [1988] VR 521 at 522; Babanaft International Co SA v Bassatne [1990] Ch 13; Macmillan Inc v Bishopsgate Investment Trust Plc (No 3) [1995] 3 All ER747 at 758. See also Yandil Holdings Pty Ltd v Insurance Co of North America (1987) 7 NSWLR 571. As to Mareva orders in general, see Chapter 4. 92. In OZ-US Film Productions Pty Ltd (in liq) v Heath [2000] NSWSC 967 at [18],Young J said: ‘The shrinking globe and the fact that international fraud and fraudsters flourish has meant that some of these concepts may be showing that their use by date has passed. Nonetheless, they still govern the approach of this Court’. 93. Heydon JA said: ‘Though the parties have gone to law in Australian courts and have acquired substantial quantities of Australian land, most of their lives have been spent in Germany’: (2001) 52 NSWLR 492 at 498, at [12]. 94. (1998) 90 FCR 489 at 503. 95. [1998] EWHC Admin 431. 96. [2010] EWHC 1908 (Ch). 97. T M Yeo, Choice of Law for Equitable Doctrines, Oxford University Press, Oxford, 2004, esp at [Intr 010–013], [Intr 020–021], [1.01]–[1.13], [2.10]–[2.17], and [8.71]. However, Gummow J, writing extra-judicially in the introduction, argues that the question whether the precepts and principles that inform the conscience of the defendant found an equity is not to be determined by a consideration of foreign law, despite connecting factors with other legal systems. 98. [2007] 3 LRC 223 ; [2006] SGCA 39 at [81]. 99. [2010] NSWCA 7; (2010) 268 ALR 377. 100. See note 99 at [133]. 101. Citing the Full Federal Court in Paramasivam v Flynn (1998) 90 FCR 489. 102. See note 99 at [133]. 103. [2010] NSWCA 222; (2010) 243 FLR 177 at [339]-[346] per Lindgren AJA. 104. National Commercial Bank v Wimborne (1978) 5 BPR 11,958 at 11,982; United States Surgical Corporation v Hospital Products International Pty Ltd [1982] 2 NSWLR 766 at 796–797; Paramasivam v Flynn (1998) 90 FCR 489 at 503. 105. Paramasivam v Flynn (1998) 90 FCR 489 at 503; Murakami v Wiryadi [2010] NSWCA 7; (2010) 268 ALR 377 at [140], [147]; Nicholls v Michael Wilson and Partners Ltd [2010] NSWCA 222; (2010) 243 FLR 177 at [346].

106. Paramasivam v Flynn (1998) 90 FCR 489 at 503.

[page 789]

PART VII

Corporations and Insolvency Chapters 35

Corporations

36

Bankruptcy and Corporate Insolvency

[page 791]

Chapter 35

Corporations Introduction 35.1 The incorporation, functions, powers and administration of Australian corporations are governed by the Corporations Act 2001 (Cth). The Commonwealth obtained the legislative power to pass this Act by referrals from each of the states under s 51(xxxvii) of the Constitution.1 35.2 Before the Corporations Act 2001 (Cth) came into force on 15 July 2001, a unified national system of corporations law had been achieved by enactment of the Corporations Law. This law was originally enacted for the Australian Capital Territory by s 82 of the Corporations Act 1989 (Cth) and was adopted by Corporations Acts enacted in each of the states and the Northern Territory.2 However, the Corporations Law scheme required jurisdiction to be cross-vested between the Federal Court of Australia and State Supreme Courts. In Re Wakim; Ex parte McNally,3 the High Court held that the cross-vesting arrangement was unconstitutional to the extent that it purported to confer jurisdiction on the Federal Court with respect to matters under the Corporations Law of a state. The High Court dealt a further blow to the Corporations Law scheme in R v Hughes,4 by casting doubt on the validity of provisions by which the states purported to empower the Commonwealth Director of Public Prosecutions to prosecute offences under state law. The only viable solution to the constitutional problem created by these decisions was for the states to refer legislative power to the Commonwealth. [page 792] 35.3 The constitutional difficulties of the corporations legislation should now

be over. The Corporations Act 2001 (Cth) creates a uniform national scheme by federal legislation. That scheme also deals with questions of corporate insolvency. The relevant provisions of the Corporations Act in relation to insolvency, together with the Cross Border Insolvency Act 2008 (Cth), are considered in Chapter 36.

Jurisdiction 35.4 Jurisdiction with respect to civil matters arising under the corporations legislation5 is conferred upon the Federal Court of Australia,6 on the Supreme Courts,7 and the lower courts8 of each state, the Northern Territory and the Australian Capital Territory. Jurisdiction is also conferred upon the Family Court of Australia9 and the Family Court of Western Australia.10 Because the Corporations Act 2001 (Cth) creates a uniform national law covering the whole of Australia, this jurisdiction can be exercised in respect of any Australian corporation.11 35.5 Because the general cross-vesting legislation is not effective in civil matters arising under the corporations legislation,12 the Corporations Act 2001 (Cth) makes its own provision for the transfer of civil proceedings between courts. Civil proceedings under the corporations legislation may be transferred from any court having jurisdiction to any other court having jurisdiction.13 35.6 Proceedings with respect to a civil matter arising under the corporations legislation pending in the Federal Court or a Supreme Court (the transferor court) may be transferred to any other court having jurisdiction in corporations matters (including a Family Court or lower court), where it appears to the transferor court that, having regard to the interests of justice, it is more appropriate for the proceeding or an application in the proceeding to be determined by that other [page 793] court.14 The essential considerations under s 1337H are the same as under the cross-vesting legislation.15 35.7 In the case of proceedings with respect to a civil matter arising under the corporations legislation pending in the Family Courts, the assumption is that

these courts are not courts with primary jurisdiction in corporations matters. Hence, proceedings must be transferred to the Federal Court or a state or territory court (including lower courts), if it appears to the Family Court either: (a) that the proceeding arises out of or is related to, proceedings pending in that other court; or (b) the proceeding or a substantial part thereof, is one over which the Family Court would not have had jurisdiction but for the provisions of the Corporations Act and in the interests of justice is more appropriately dealt with in the other court; or (c) it is otherwise in the interests of justice that the other court determine the proceeding.16 A Family Court must also transfer a proceeding to another Family Court in the case of related proceedings or where such transfer is otherwise in the interests of justice.17 35.8 A lower court may transfer proceedings directly to another lower court with jurisdiction where it appears to the transferor court that, having regard to the interests of justice, it is more appropriate for the proceeding or an application in the proceeding to be determined by that other court.18 If the lower court wishes to transfer proceedings or an application to a superior court, such as the Federal Court, it must transfer them to the Supreme Court in the state or territory of which it is a court,19 with a recommendation that that court transfer the proceeding or application to the other superior court.20 The Supreme Court is not obliged to comply with the lower court’s recommendation and may either deal with the application or proceeding itself, or transfer it to some other court (including back to the transferor lower court).21 When transferring the matter on to another court, the Supreme Court must have regard to the interests of justice in the same way that it would if it were the original transferor court.22 35.9 Proceedings for judicial review of administrative decisions by a Commonwealth authority or an officer of the Commonwealth are treated differently from other civil proceedings. Although state and territory Supreme Courts (but not lower courts) are given jurisdiction to hear such matters,23 the Corporations Act 2001 (Cth) treats the Federal Court as the primary jurisdiction. The Federal Court may only [page 794] transfer such a proceeding or application to a State or Territory Supreme Court if the proceeding or application arises out of or relates to a corporations legislation matter (other than another judicial review matter) pending in any court of that

state or territory, whichever proceeding was commenced first.24 When considering whether such a transfer is appropriate, the Federal Court must have regard to the interests of justice, including the desirability of related proceedings being heard in the same jurisdiction.25 Conversely, state and territory courts must transfer such a proceeding or application to the Federal Court unless it arises out of or relates to another corporations legislation matter (other than another judicial review matter) pending in any court of that state or territory, whichever proceeding was commenced first.26 A state or territory Supreme Court may transfer such a proceeding or application to the Federal Court even if not required to do so, if it considers that to be appropriate, having regard to the interests of justice, including the desirability of related proceedings being heard in the same state or territory.27 35.10 In determining whether to transfer any proceeding or application the court must have regard to: the principal place of business of any body corporate involved in the litigation; the place or places where the events that are the subject of the proceeding or application took place; and the other courts that have jurisdiction to deal with the proceeding or application.28 These considerations are not exhaustive.29 35.11 Considerations in relation to the exercise of discretion under the transfer provisions of the Corporations Act will be similar to those in respect of the general cross-vesting legislation, including as to questions of onus.30 Transfer may be made at any stage, on the application of a party or of the court’s own motion.31 35.12 Jurisdiction over foreign corporations is acquired through service in accordance with the Corporations Act 2001 or Rules of Court of the Federal or State Supreme Courts.32

Service Partnerships 35.13 At common law a foreign partnership could not be sued as such merely because some of the partners or a place of business of the partnership were within the jurisdiction. Each of the partners had to be brought within the jurisdiction [page 795]

either at common law or by virtue of the provisions of the English O 1133 or its local equivalent.34 Today, by virtue of the Rules of Court in each state and territory (except New South Wales),35 partners carrying on business within the jurisdiction may sue or be sued in the name of their firm36 and proper service is effected by serving either one of the partners who is within the jurisdiction or the person who has the control or management of the partnership business within the jurisdiction.37 It does not matter that all members of the partnership are out of the jurisdiction, and no prior leave to serve the writ is necessary. 35.14 The rule is permissive and does not preclude service upon the individual partners either at common law or by virtue of some other statutory rule.38 Even though service under the above-mentioned rule amounts to service on all partners, the English courts have allowed a plaintiff to join an absent partner individually as a co-defendant with the firm and seek leave to serve him or her out of the jurisdiction as a necessary and proper party.39

Corporations 35.15 At common law a corporation could only be amenable to the jurisdiction of the court if it was ‘present’ within the jurisdiction. Traditionally, in order to be ‘present’ it had to meet three conditions as stated by Holland J in National Commercial Bank v Wimborne:40 First, it must be carrying on its business here and this it can only do by an agent and will not be doing unless the agent has authority on behalf of the corporation to make contracts with persons in New South Wales binding on the corporation. Secondly, the business must be carried on at some fixed and definite place within the State. Thirdly, the business must have continued for a sufficiently substantial period of time.

35.16 As regards the first condition, it has been held in the past that there must be an agent in the jurisdiction to transact business on behalf of the corporation who is not a mere ministerial agent.41 Thus, a commercial traveller who canvasses orders within the jurisdiction and transmits them abroad for acceptance does not thereby [page 796] render the employer company ‘present’ within the jurisdiction.42 Nor is a foreign bank ‘present’ within the jurisdiction because a local bank acts as an ‘advising bank’ on a letter of credit transaction for it.43

35.17 It is now clear, however, that the ‘presence’ need not be a contractual agency: if the business of the foreign corporation is the receipt of income as trustee, it will be ‘present’ through solicitors or other agents who do no more than collect the payments locally and transmit them overseas.44 It would appear that if the foreign corporation maintains a liaison office staffed by its own employees within the jurisdiction which supplies and transmits information, but transacts no business, that may still amount to ‘presence’.45 However, a foreign corporation is not ‘present’ merely because it owns or controls a majority shareholding in a local corporation.46 35.18 As regards the second condition, there must be a fixed address from which the business is conducted. It need not be owned or leased by the foreign corporation nor specifically set aside for its business: it can be the premises of its solicitors or accountants if they conduct the business on its behalf.47 Ownership of land within the jurisdiction is not enough by itself.48 35.19 As regards the third condition, it has been held that an exhibition stand maintained for nine days in England by an agent with authority to enter into contracts for a foreign corporation was sufficient.49 35.20 If the foreign company meets these requirements service can be effected upon it in the manner prescribed by the Rules of Court in all jurisdictions50 for the service of local corporations, whether or not that company is registered as a foreign company under the Corporations Act 2001 (Cth) or previous state and territorial legislation.51 It was held in Amalgamated Wireless (Australasia) Ltd v McDonnell Douglas Corp52 that a foreign corporation which is neither registered nor ‘present’ within the jurisdiction may be served under then O 7 r 2 of the Federal Court Rules by leaving the documents with a person or body within the jurisdiction, such as its solicitors who are likely to bring the existence of the writ to its notice. But this decision was not followed in Takapana Investments Pty Ltd v Teco Information Systems Co Ltd,53 and this decision was in turn preferred in Commissioner of Taxation v Ma.54 As such, it is submitted that service on an unregistered foreign corporation not otherwise present in the jurisdiction must [page 797] be in accordance with the Rules of Court for service out of the jurisdiction, or for substituted service if service out is impractical.

35.21 In practice, insofar as questions of service are concerned, the rules about the presence of corporations are significant only in relation to unregistered foreign companies. This is because the Corporations Act 2001 (Cth) provides in s 601CD that a foreign company must not ‘carry on business in Australia’ unless it has registered with the Australian Securities and Investments Commission (ASIC), and ASIC must not register a foreign company unless it has appointed at least one local agent who is a natural person or a company resident in Australia and is authorised to accept service on the foreign company’s behalf.55 Service of documents, including writs, on a registered foreign company can be effected under s 601CX(1) by leaving them at, or by sending by post to, the latest address of the local agent notified to ASIC. Alternatively, if two or more directors reside in Australia or an external territory, service may be effected by leaving a copy with each of two of those directors,56 and the court may direct service on a registered body by other means.57 A ‘foreign company’ is defined in s 9 of the Corporations Act 2001 (Cth) as including a foreign unincorporated body that under the law of its place of formation may sue or be sued or may hold property in the name of the secretary or other officer of the body duly appointed for that purpose.58 35.22 When considering whether or not a company carries on business in Australia for the purposes of the Corporations Act, care must be taken to distinguish decisions on the same phrase but in different legislative contexts, often with different statutory definitions.59 The concept of ‘carrying on business in Australia’ is also found, for example, in other Acts. An important example is s 5(1) of the Competition and Consumer Act 2010 by which Parts IV and XI of that Act and the Australian Consumer Law are extended to the engaging in of conduct outside of Australia by bodies corporate incorporated or ‘carrying on business within Australia’.60 But as was observed in ASIC v Activesuper Pty Ltd (No 1),61 whether a party is carrying on a business will be determined in all the circumstances of the case, the context of the relevant statute and with reference to the particular nature of the enterprise conducted by the company. [page 798] 35.23 The ‘carrying on [of] business’ in Australia by a foreign company, as that expression is used in the Corporations Act, includes establishing or using a share transfer or registration office in Australia, or administering, managing or otherwise dealing with property situated in Australia as an agent, legal personal

representative or trustee, whether by employees or agents or otherwise.62 A foreign corporation does not carry on business here merely because it becomes a party to litigation, invests or holds property, maintains a bank account, secures or collects any of its debts or enforces its rights in regard to any securities relating to such debts, invests any of its funds or holds any property, or engages in isolated transactions.63 A foreign company may carry on a business in Australia ‘by’ an agent but the cases draw a subtle distinction between the concepts of carrying on a business ‘by’ as opposed to ‘through’ an agent; the latter may not involve the foreign corporation carrying on business in Australia.64 35.24 The issuing of letters of credit to Australians has been said to amount to carrying on business in Australia.65 It has been held by the Full Court of the Federal Court in Edwards v Australian Securities Commission66 that a foreign corporation that does no more than have a place of business in Australia without conducting any business activities is ‘carrying on business’ in Australia. As s 21 of the Corporations Act does not provide an exhaustive definition of ‘carries on business in Australia’, territorially-based general law concepts of ‘carrying on business’ continue to have relevance.67 It has been held that, for business to be carried on in Australia, there is a need for some physical activity in Australia through human instrumentalities, being activity that itself forms part of the course of conducting business.68 Thus, it has been held that physical acts outside of Australia, such as uploading documents on the internet, which result in business communication with persons in Australia who download them, do not amount to the carrying on of business in Australia, notwithstanding the territorial quality of receipt.69 So also capital raising per se and the issuing of shares to Australian residents will not necessarily involve capital raising in Australia.70 It is probably an open question whether a foreign corporation which uses a wholly owned local subsidiary to conduct its activities in Australia is carrying on business in Australia through that agency.71 In Bray v F Hoffmann-La Roche Ltd,72 Merkel J rejected a submission that the fact that a parent company may have the ultimate legal entitlement, as shareholders, to elect the board of [page 799] a subsidiary and therefore, in a practical and commercial sense, have a general capacity to direct and control its commercial operations, was sufficient to warrant a conclusion that the parent company, for that reason alone, carried on business in Australia. He held that:

In my view something more than the indirect legal and commercial capacity of the parent companies to control and direct the subsidiaries, plus the parent’s involvement in implementing the cartel arrangement, is required to lift the corporate veil between the subsidiaries and their parents or to find that each of the subsidiaries is carrying on its business as agents for the parents. That is particularly so where it is contended (as it is in the present case) that the parent rather than the subsidiary is carrying on business in Australia or, put another way, a subsidiary is engaging in all of its commercial activities on behalf of, and therefore as agent for, the parent.

35.25 Compliance with the Corporations Act provisions by foreign corporations gives the local courts jurisdiction over the corporation either because it is the purpose of the provisions to place the foreign corporation on exactly the same footing as a domestic corporation, or because the filing of the documents with ASIC can be regarded as a submission to the jurisdiction of the local courts.73 As long as the company remains on the register, service at the address indicated is good even though the corporation has ceased doing business within the jurisdiction.74 If the foreign corporation fails to register, the provisions outlined above in relation to unregistered companies and companies not carrying on business here, namely the ordinary Rules of Court for service out of the jurisdiction and substituted service, must be used.75

Recognition 35.26 English courts have since 1728 recognised that a foreign corporation has standing to sue in England even though it has not been incorporated under English law.76 Strangely enough, it was not established until 1872 that a foreign corporation could be sued in England.77 35.27 The law of the place of incorporation determines whether the corporation exists. As Lord Wright said in Lazard Bros & Co v Midland Bank Ltd:78 But as the creation depends on the act of the foreign State which created them, the annulment of the act of creation by the same power will involve the dissolution and non-existence of the corporation in the eyes of English law. The will of the sovereign authority which created it can also destroy it. English law will equally recognise the one, as the other, fact.

[page 800] In the case of an international organisation created by treaty, such an organisation will be recognised as having the legal capacity of a corporation where it has been accorded that capacity under the law of any member state

party to its foundation, or the state where it has its seat if that state is not a member state.79 35.28 The principle associated with the decision in Lazard Bros & Co v Midland Bank Ltd80 has been reinforced by s 7(2) of the Foreign Corporations (Application of Laws) Act 1989 (Cth), which provides that any question whether a person or body has been validly incorporated in a place outside Australia is to be determined by reference to the law applied by the people in that place. The curious reference to ‘the law applied by the people’ is explained by s 9(1) which states that the application of the Act is not to be affected by the recognition or non-recognition by Australia of a foreign state, government, or of a claim that a place forms part of a foreign state, or of the branches of government operated by the people in that place. 35.29 This provision seeks to overcome the problems that have arisen in the past by the non-recognition by Australia of governments which purport to exercise authority in certain parts of the world such as Taiwan and the Turkish state on Cyprus.81 Conversely, by s 8 of the Act an Australian court must refuse to give effect to acts by a foreign authority claiming jurisdiction over another territory to affect the status of a corporation incorporated there or its assets or dealings, if such intervention would not be recognised by the authorities who factually control that place.82 35.30 Even if the foreign body is not a corporation under the law of the place of its origin, it may be recognised in the forum as having a separate personality from those of its members. In Chaff and Hay Acquisition Committee v JA Hemphill & Sons Pty Ltd83 it was said by Latham CJ: A body which, as distinct from the natural persons composing it, can have rights and be subject to duties and can own property must be regarded as having a legal personality, whether it is or is not called a corporation.

35.31 Consequently, it was held that the Chaff and Hay Acquisition Committee, a marketing body set up under the law of South Australia, was entitled to sue as such in New South Wales because under the law of South Australia the committee could sue and be sued in its collective name and could acquire and hold property as the property of the committee and not of its individual members. This case illustrates the proposition that a foreign entity which meets the above description will be defined as a ‘corporation’ for Australian purposes by reason of its attributes rather than by its classification under foreign law.84

[page 801] 35.32 It is for the law of the incorporation to determine what can constitute a corporation. Thus, it has been held that an abandoned Indian temple which had corporate status in Indian law had standing to sue in England to recover a statue found within its precincts.85 In McIntyre v Eastern Prosperity Investments Pte Ltd (No 6),86 French J held that existence of one of the respondent parties as a legal entity derived from its incorporation under the laws of Singapore and not from the fact of registration under the Corporations Law or the current Corporations Act. His Honour held that ‘as a matter of comity its existence as a legal entity by reason of Singapore law entitles it to recognition as such in this jurisdiction’. 35.33 A foreign unincorporated body which under the law of its origin can sue and be sued in its collective name, but does not otherwise possess a separate personality will, apart from statute, not have the standing to sue and be sued in its collective name in the forum87 35.34 However, under the Corporations Act 2001 (Cth) s 9, a foreign unincorporated body which under the law of the place of formation may sue or be sued or hold property in the name of its secretary or other officer of the body, is included in the definition of ‘foreign company’ under the Act. 35.35 According to the law of certain foreign countries, partners are not liable to be sued individually until the plaintiff has exhausted all remedies against the partnership as such.88 The parties are indeed individually liable, but the individual liability is postponed to their collective liability. English courts have regarded this limitation as being merely of a procedural nature and have, consequently, ignored it when action was brought against a partner individually in England.89

Place of Incorporation 35.36 According to the common law the place of incorporation determines whether the corporation exists and what its powers and functions are. This has been confirmed by the Foreign Corporations (Application of Laws) Act 1989 (Cth) s 7(2), (3). Because of the similarity in function to the law of the domicile in relation to the status of a natural person, the place of incorporation is often referred to as the domicile of the corporation. The analogy is misleading here.

For, while an individual [page 802] can at any time change his or her domicile to another country on his or her own initiative, a corporation can only change its place of incorporation with the consent of both countries involved. 35.37 Unlike its predecessor, the Corporations Law, the Corporations Act 2001 (Cth) makes no specific provision for the transfer of incorporation of foreign companies. However, the provisions governing registration are in general terms, so that a person could apply to ASIC for registration of a foreign corporation as an Australian corporation.90 This may raise the question whether the transfer of the incorporation is authorised under the law of the original incorporation. This requirement is in accordance with the common law.91 If the existing place of incorporation does not permit the change, it will not be recognised.92

Powers and Functions of Corporations 35.38 As stated earlier, the law of the place of incorporation determines the ‘capacity of a foreign corporation and the functions and powers of its organs or officers’.93 This is confirmed by s 7(3)(a) of the Foreign Corporations (Application of Laws) Act 1989 (Cth). Thus, the law of incorporation determines who are the members, shareholders or directors of the corporation and their rights and liabilities in relation to the corporation. It also determines the existence, nature and extent of any other interest in a foreign corporation, matters affecting its internal management and the validity of dealings within the corporation.94 35.39 This would include questions such as whether any particular body or person has the authority to act on behalf of the corporation,95 and the liability of members and shareholders on the winding up of the corporation such as whether it is limited or unlimited.96 35.40 Section 7(3) does not deal with the capacity of a corporation to deal with outsiders. However, its provisions are not to be read as exhaustive.97 It has been held at common law that a corporation which has the capacity under the law of the place of incorporation to enter into contracts and do business generally will

have its capacity recognised and given effect to in the forum.98 It has been held in England [page 803] that a foreign corporation which was authorised to hold land under the law of its incorporation could not do so in England in contravention of the now repealed Mortmain Acts.99> It may be that this result applies only in the case of a statute of the forum specifically restricting the capacity of foreign corporations to act within the forum. In the absence of such a restriction a foreign corporation may exercise within the forum such powers and capacities as it possesses under its own law, including the acquisition and ownership of land.100 35.41 Because of the express provision of s 601CY of the Corporations Act 2001 (Cth) that a registered foreign company has power to hold land in Australia, it might be implied that a foreign company that is not registered under s 601CE of the Act, will not have the power to hold land. But the provision may not have been intended to change the common law position as stated above. Certainly, the suggestion by Northrop J in Nauru Local Government Council v Australian Shipping Officers’ Association101 that an unregistered foreign body which is carrying on business in Australia may lack standing to sue by reason of illegality appears to go too far. A foreign body does not carry on business in Australia and is therefore not required to register, merely because it becomes a party to proceedings here.102 Nor is there any obvious reason why an unregistered foreign corporation should be prevented from claiming rights under the Trade Practices Act 1974 (Cth) or any other rights under Australian law that do not arise out of any illegal act.103

Obligations of Directors of Corporations 35.42 In Konamaneni v Rolls Royce Industrial Power (India) Ltd,104 Lawrence Collins J (as he then was) referred to Pergamon Press Ltd v Maxwell105 as authority for the proposition, which he described as ‘unexceptional and indeed obvious’, that ‘the extent of the duties of the director of a foreign company is governed by the law of that company, the place of incorporation’.106 Similar statements were made by two members of the English Court of Appeal in Base Metal Trading Ltd v Shamurin.107 In that case, Tuckey LJ stated that:

[page 804] A director’s duties to his company are inextricably bound up with these matters and must therefore be governed by the place of the company’s incorporation. Any other result would create huge uncertainty and hamper the requirement for good corporate governance and proper regulatory control.

Arden LJ observed that:108 [T]he law of the place of incorporation applies to the duties inherent in the office of director and it is irrelevant that the alleged breach of duty was committed, or the loss incurred, in some other jurisdiction. Accordingly, these duties can only be modified by contract to the extent that the law of the place of incorporation allows. It is not open to the company and the director to contend that they have contractually varied the liabilities imposed by the law of the place of incorporation by the terms of a contract for the appointment of the director governed by some other law, unless it is also shown that the law of the place of incorporation would allow this. In the matter of directors’ duties —which are essential to good corporate governance and to any effective system of law regulating companies—party autonomy is the exception not the rule, and its scope is always a matter for the law of the place of incorporation.

The Corporations Act implicitly recognises this principle in s 186. This section provides that the statutory duties imposed upon directors and officers pursuant to ss 180–184 of the Corporations Act do not apply to an act or omission by a director or other officer or employee of a foreign company unless the act or omission occurred in connection with the foreign company carrying on business in Australia, or in connection with an act that the foreign company does, or proposes to do, in Australia, or a decision by the foreign company whether or not to do, or refrain from doing, an act in Australia. This may have forensic ramifications for a liquidator examining alleged breaches of duty.109 Attention should also be drawn to s 7(3)(e) of the Foreign Corporations (Application of Laws) Act 1989 (Cth) which provides that: Any question relating to the rights and liabilities of the members or officers of a foreign corporation … in relation to the corporation is to be determined by reference to the law applied by the people in the place in which the foreign corporation was incorporated.

By s 7(1) of the Act, this section only applies, however, in relation to the determination of a question arising under Australian law where it is necessary to determine the question by reference to a system of law other than Australian law. This section of the Act was discussed by Lindgren AJA in Nicholls v Michael Wilson Partners.110 35.43 English courts have taken the view that issues relating to the ownership of shares in a foreign company, and to the right of a shareholder in such a company to obtain relief against a director in the name of the company, should

be determined by the courts of the place of incorporation111 (although judgments to this effect are no doubt influenced by the natural forum doctrine associated with Spiliada, which has been rejected in Australia).112 [page 805]

Derivative Actions 35.44 The question of what law governs the right of a shareholder to bring a derivative suit (as an exception to the general rule that only a company may bring suit for or in respect of wrong done to it) has generated different responses, with arguments in favour of both the law of the place of the company’s incorporation and also the law of the forum on the basis that the question is treated (at least as a matter of domestic law) as a matter of procedure. This latter view was considered but rejected by Lawrence Collins J (as he then was) in Konamaneni v Rolls Royce Industrial Power (India) Ltd,113 who held that although, for purely domestic law purposes, the exceptions to the general rule in Prudential Assurance Co Ltd v Newman Industries (No 2)114 have been regarded as a procedural device, in the international context, their real nature could not be regarded as procedural. This was on the basis that they ‘confer a right on shareholders to protect the value of their shares by giving them a right to sue and recover on behalf of the company’, and that ‘it would be very odd if that right could be conferred on the shareholders of a company incorporated in a jurisdiction which had no such rule, and under which they had acquired their shares’. In favouring the law of the place of incorporation, his Lordship followed approaches taken in the United States.115 35.45 This approach has not, however, been followed in Australia. In Ebbage v Manthey,116 Helman J treated the question as simply one of standing and thus as a question of procedure to be governed by the law of the forum. He rejected the submission that the issue of standing was a question ‘relating to the rights and liabilities of members, officers or shareholders of a foreign corporation’ within the meaning of s 7(3)(e) of the Foreign Corporations (Application of Laws) Act 1989. He also rejected the submission that it was a question of the ‘existence, nature and extent of any other interest in a foreign corporation’ or a question of the ‘internal management and proceedings’ of a foreign corporation, within the meaning of s 7(3)(f), (g) of that Act. In Virgtel Limited v Zabusky,117 de Jersey

CJ held that the right of a shareholder to bring a derivative action was procedural and not substantive, and thus for the law of the forum and not the law of incorporation of the company concerned. De Jersey CJ stated that the action ‘concerns the mechanics of litigation, what formalities must be met before a proceeding may go forward: it does not concern the “existence, extent or enforceability” of the right (to bring a derivative proceeding), just the manner of its exercise’. This issue was noticed but left open in Oates v Consolidated Capital Services Pty Ltd.118 [page 806]

Dissolution and Amalgamation of Companies 35.46 A corporation which has been dissolved under the law that created it can no longer sue or be sued in the forum or be recognised as being entitled, or subject, to any legal rights or obligations.119 However, it is provided in the Corporations Act 2001 (Cth) s 582(3) that a body incorporated outside Australia ‘may be wound up … notwithstanding that it is being wound up or has been dissolved or has otherwise ceased to exist as a body corporate under or by virtue of the laws of the place under which it was incorporated’.120 35.47 The effect of this provision is to treat the foreign corporation as still being in existence for the purpose of winding up within Australia, with the result that the rights and liabilities of local creditors and debtors in relation to the dissolved corporation are to be treated as existing obligations which can be asserted by, or against, the corporation which remains a juristic entity for the purposes of winding up.121 35.48 If a foreign corporation is merged into another corporation or amalgamated with another corporation into a new corporation under the law of the place of incorporation of the companies concerned, the new entity will be recognised in the forum122 as will assets and liabilities which are treated as having been transferred or assumed under the law of the place of the merged companies.123 In Microsoft Corporation v PC Club Australia Pty Ltd,124 Conti J noted that whilst Australian corporations law does not recognise the concept of ‘merger’ of corporations, s 7(3) of the Foreign Corporations (Application of Laws) Act 1989 (Cth) provides that any question of the status of a foreign corporation (including its identity as a legal entity) is to be determined by

reference to the law applied by the people in the place in which the foreign corporation was incorporated, which place on the facts of that case was the state of Washington, United States, that being the domicile of Microsoft Corporation. His Honour noted but did not need to decide (the issue not being raised by the parties) whether or not the reference in s 7(3) to the foreign law was intended to include the choice of law rules of the place of incorporation of the relevant entity.125 In Preussag Immobilien GmbH v Harriss126 Hunter J applied National Bank of Greece and Athens SA v Metliss127 and held that rights vested in [page 807] one company at the time of the merger with another company were able to be enforced as those rights passed under the law of the place of incorporation of the merged companies. The transfer of rights and liabilities was treated as a question of or concerning the ‘status’ of the foreign corporation. 35.49 No amalgamation or merger may be recognised as such unless the new entity succeeds to substantially all the assets and liabilities of the merged or amalgamated corporations.128 Where companies incorporated in different countries are merged or amalgamated, it would seem that the law of the place of incorporation of each company must permit and recognise the merger or amalgamation with the other. _________________________ 1.

Corporations Act 2001 (Cth) s 3(1)(b) explains the constitutional basis for the Act. Referrals were made by: Corporations (Commonwealth Powers) Act 2001 (NSW); Corporations (Commonwealth Powers) Act 2001 (Qld); Corporations (Commonwealth Powers) Act 2001 (SA); Corporations (Commonwealth Powers) Act 2001 (Tas); Corporations (Commonwealth Powers) Act 2001 (Vic); Corporations (Commonwealth Powers) Act 2001 (WA). The operation of the Act in the territories is based on the Commonwealth’s territories power in s 122 of the Constitution: see Corporations Act 2001 (Cth) s 3(2).

2.

Corporations (New South Wales) Act 1990; Corporations (Northern Territory) Act 1990; Corporations (Queensland) Act 1990; Corporations (South Australia) Act 1990; Corporations (Tasmania) Act 1990; Corporations (Victoria) Act 1990; Corporations (Western Australia) Act 1990.

3.

(1999) 198 CLR 511; see Chapter 6.

4.

(2000) 202 CLR 535; 171 ALR 155.

5.

The Corporations Act 2001 (Cth) s 9 Dictionary definition of ‘Corporations legislation’ includes the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth).

6.

Corporations Act 2001 (Cth) s 1337B(1).

7.

Corporations Act 2001 (Cth) s 1337B(2).

8.

Corporations Act 2001 (Cth) s 1337E(1). ‘Lower court’ is defined to mean any court that is not the state or territory Supreme Court or Family Court: see the Dictionary in Corporations Act 2001 (Cth) s 9.

9.

Corporations Act 2001 (Cth) s 1337C(1).

10. Corporations Act 2001 (Cth) s 1337C(2). 11. Each of the sections conferring jurisdiction on state and territory courts (see nn 6–10 above) provides that the jurisdiction is not limited by any limits to which any other jurisdiction of that court may be subject: see, for example, s 1337B(5). The general limits on the jurisdiction of lower courts based on amount and value of property are preserved, but other jurisdictional limits are not: s 1337E(2). 12. Re Wakim; Ex parte McNally (1999) 198 CLR 511. 13. Corporations Act 2001 (Cth) ss 1337H–1337K. See, for example, Efax Pty Ltd v Sonray Capital Markets Pty Ltd (in liq) (2011) 84 ACSR 195. 14. Corporations Act 2001 (Cth) s 1337H(1), (2). 15. Global Reality Development Corporation v Dominion Wines Ltd [2005] NSWSC 1221; Toshiba (Aust) Pty Ltd v Clivpee Ltd [2010] NSWSC 1215. 16. Corporations Act 2001 (Cth) s 1337J(1), (2). 17. Corporations Act 2001 (Cth) s 1337J(3). 18. Corporations Act 2001 (Cth) s 1337K(1), (2), (3). 19. Corporations Act 2001 (Cth) s 1337K(8). 20. Corporations Act 2001 (Cth) s 1337K(4). 21. Corporations Act 2001 (Cth) s 1337K(5). 22. Corporations Act 2001 (Cth) s 1337K(6). 23. The Federal Court has jurisdiction to hear such matters under the Administrative Decisions (Judicial Review) Act 1977 (Cth) s 8(1). Despite the fact that s 9 of that Act purports to limit the jurisdiction of state courts, the Supreme Court of each state and territory is given jurisdiction to hear such matters by the Corporations Act 2001 (Cth) s 1337B(3). 24. Corporations Act 2001 (Cth) s 1337H(5). 25. Corporations Act 2001 (Cth) s 1337H(5)(d). 26. Corporations Act 2001 (Cth) s 1337H(3). 27. Corporations Act 2001 (Cth) s 1337H(4). 28. Corporations Act 2001 (Cth) s 1337L. 29. Acton Engineering Pty Ltd v Campbell (1991) 31 FCR 1; J N Taylor Finance Ltd v Bond Corp Finance Ltd (1991) 55 SASR 428 at 436; 4 ACSR 483 at 490–2; Re Terranora Leisuretime Sales Pty Ltd (1991) 5 ACSR 382; Burmine Ltd v Mount Edon Gold Mines (Australia) Ltd (1993) 12 ACSR 360; Emanuel Management Pty Ltd (In Liq) v Fosters Brewing Group Ltd (1999) 73 ACSR 303. These decisions relate to the equivalent provisions in the earlier Corporations Law scheme. See also Acehill Investments Pty Ltd v Incitec Ltd [2004] SASC 344. 30. See generally Chapter 6 above. 31. Corporations Act 2001 (Cth) s 1337M. 32. See Chapter 3 above. 33. Now CPR rr 6.19, 6.20.

34. Heinemann & Co v SB Hale & Co [1891] 2 QB 83. 35. Other than in the case of limited partnerships, New South Wales has no specific provision made regarding service on partners, but see Business Names Act 2002 (NSW) s 38(2) and UCPR rr 10.9, 10.10. For limited partnerships, see UCPR r 10.11. 36. FCA: FCR Division 9.4; ACT: CPR 2006 Div 2.4.10; NT: r 17.01; Qld: r 83(2); SA: SCCR r 64; Tas: O 54 r 1; Vic: r 17.01; WA: O 71 r 1. See, as regards a foreign partnership not carrying on business within the jurisdiction, Oxnard Financing SA v Rahn [1998] 1 WLR 1465 (CA). 37. FCA: FCR r 10.05; ACT: CPR 2006 Div 2.4.10; NT: r 17.03; Qld r 114(1); SA: SCCR r 64; Tas: O 54 r 3; Vic: r 17.03; WA: O 71 r 3. In New South Wales no specific provision is made regarding service on partners, but see Business Names Act 2002 (NSW) s 38; UCPR rr 10.9, 10.10. 38. Hobbs v Australian Press Assoc [1933] 1 KB 1. 39. West of England Steamship Owners Protection & Indemnity Assoc Ltd v John Holman & Sons [1957] 3 All ER 421. 40. (1979) 11 NSWLR 156 at 165. See also the cases referred to in Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 60 NSWLR 425; and Gebo Investments (Labuan) Ltd v Signatory Investments Pty Ltd (2005) 54 ACSR 111; ASIC v Activesuper Pty Ltd (No 1) (2012) 92 ACSR 614; Norcast SarL v Bradken (No 2) [2013] FCA 235 at [255]–[256]. 41. Bowden Bros & Co v Imperial Marine Transport Insurance Co (1902) 2 SR (NSW) 257. 42. Pearce v Tower Manufacturing and Novelty Co Ltd (1898) 24 VLR 506. 43. National Commercial Bank v Wimborne (1979) 11 NSWLR 156. 44. BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725 at 730–5 per Murray J. 45. South India Shipping Corp Ltd v Export-Import Bank of Korea [1985] 2 All ER 219. 46. Adams v Cape Industries plc [1990] Ch 433. 47. BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725. 48. Re Oriel Ltd [1985] 3 All ER 216. 49. Dunlop Pneumatic Co v AG Cudell & Co [1902] 1 KB 342. 50. HCA: O 9 r 6; FCA: r 10.02; ACT: O 10 r 6; NSW: UCPR r 107; NT: r 6.04(a); SA: r 15.01(c)(v); Tas: O 9 r 6; Vic: r 6.04(a);WA: O 72 r 3; QLD: UCPR r 107. 51. BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725 at 730–5 per Murray J. 52. (1987) 77 ALR 537 at 541 per Wilcox J. 53. (1998) 82 FCR 25; 153 ALR 377. 54. (1999) 92 FCR 569. 55. Corporations Act 2001 (Cth) ss 601CF, 601CG. 56. Corporations Act 2001 (Cth) s 601CX(3). 57. Corporations Act 2001 (Cth) s 601CX(5). 58. A foreign company that carries on business in Australia without being registered (contrary to s 601CD) falls within the definition of a ‘Part 5.7 body’, and may be wound up by an Australian court: see Chapter 36 below; and Re Wayland as Liquidator of ABC Containerline BV (2005) 52 ACSR 750; Titchfield Management Ltd v Vaccinoma Inc (2008) 68 ACSR 448. A Part 5.7 body remains of that status, at least for winding up purposes, even if, and after, it has ceased to carry on business in Australia as an unregistered foreign company: ASIC v International Unity Insurance (General) Ltd [2004] FCA 1060.

59. Cf. Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 60 NSWLR 425, a decision dealing with the phrase as defined in A New Tax System (Goods and Services) Tax Act 1999 (Cth). 60. This expression in the context of the Trade Practices Act was considered by Merkel J in Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1 at 22–3; see also at (2003) 130 FCR 317. 61. (2012) 92 ACSR 614 at [44]. 62. Corporations Act 2001 (Cth) s 21(2). 63. Corporations Act 2001 (Cth) s 21(3). 64. Tycoon Holdings Ltd v Trencor Jetco Inc (1992) 34 FCR 31; ASIC v Activesuper Pty Ltd (No 1) (2012) 92 ACSR 614 at [48]. 65. Re New Cap Reinsurance Corporation Holdings Ltd (1999) 32 ACSR 234. 66. (1997) 72 FCR 350; 142 ALR 455. 67. Gebo v Signatory Investments Pty Ltd (2005) 54 ACSR 111 at 123. 68. See note 67 above, at 122. 69. See note 67 above, at 121–2. 70. ASIC v Activesuper Pty Ltd (No 1) (2012) 92 ACSR 614 at [48]; ASIC v Cycclone Magnetic Engines Inc (2009) 71 ACSR 1; but cf. ASIC v Risqy Ltd [2008] QSC 107; ASIC v Edwards [2004] QSC 344. 71. Amalgamated Wireless (Australasia) Ltd v McDonnell Douglas Corp (1987) 77 ALR 537 at 539–40; cf Adams v Cape Industries plc [1990] Ch 433. 72. (2002) 118 FCR 1 at 23. 73. Employers’ Liability Assurance Corp Ltd v Sedgwick, Collins & Co [1927] AC 95 at 115 per Lord Parmoor. 74. Sabatier v Trading Co [1927] 1 Ch 495. 75. Deverall v Grant Advertising Inc [1955] 1 Ch 111. 76. Henriques v Dutch West Indies Co (1728) 2 Ld Raym 1532; (1728) 93 ER 862. 77. Newby v Van Oppen (1872) LR 7 QBD 293. 78. [1933] AC 289 at 297. 79. Westland v Arab Organisation for Industrialisation [1994] 2 Lloyd’s Rep 608. 80. [1933] AC 289 at 297. 81. See the discussion by Fogarty J in In the Marriage of Gould (1993) 17 Fam LR 156 at 198. 82. For example, Banco de Bilbao v Sancha [1938] 2 KB 176 (attempt by lawful Republican Government of Spain to affect the management of a company incorporated in Nationalist held territory). 83. (1947) 74 CLR 375 at 385. 84. Compare Nair v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 60, where Chaff and Hay was distinguished on the basis that the ‘foreign’ entity, the Migration Agents Registration Board, had no express power to own property, enter into contracts or sue and be sued in its corporate name. 85. Bumper Development Corp Ltd v Commr of Police Metropolis [1991] 4 All ER 638; [1991] 1 WLR 1362. 86. (2005) 218 ALR 401. See also Feng v GMS Fulfilment Service Ltd (2004) 50 ACSR 527, where it was held that a New Zealand company which had once been registered under Australian companies legislation did not need to be restored to the register in order for it to be sued in circumstances where

the defendant company was a ‘legal entity in its own right’ according to the law of its place of incorporation. 87. Von Hellfeld v Rechnitzer [1914] 1 Ch 748. But this decision was distinguished by the Court of Appeal in Oxnard Financing SA v Rahn [1998] 1 WLR 1465, where it was held that a Swiss general partnership which was found not to be a corporation under Swiss law, but to have many of the characteristics of a corporation, could be sued in England either in its collective name or in the names of the individual partners. 88. M Wolff, Private International Law, 2nd ed, Clarendon Press, Oxford, 1950, pp 239–40. 89. Re Doetsch [1896] 2 Ch 836. 90. Corporations Act 2001 (Cth) s 117. 91. Koninklijke Lederfabriek Oisterwijk v Chase National Bank of the City of New York (1941) 30 NYS 2d 518; Anderson v NV Transandine Handelsmij (1941) 31 NYS 2d 194. 92. Banco de Bilbao v Sancha [1938] 2 KB 176; NV Suikerfabriek Wono-Aseh v Chase National Bank of the City of New York (1953) 111 F Suppl 833. 93. Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853 at 919 per Lord Reid. See also PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643 at 655 per Giles J. 94. Foreign Corporations (Application of Laws) Act 1989 (Cth) s 7(3). 95. Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853. 96. Bateman v Service (1881) 6 App Cas 386; Risdon Iron and Locomotive Works v Furness [1906] 1KB 49. Bateman v Service was implicitly affirmed by the High Court in The State of New South Wales v Commonwealth (2006) 229 CLR 1 at [93]. 97. Foreign Corporations (Application of Laws) Act 1989 (Cth) s 7(4). 98. Bateman v Service; Picturesque Atlas Publishing Co v Campbell (1891) 24 SALR 145. 99. Attorney-General v Parsons [1956] AC 421. 100. Re Transfer of Land Act [1916] VLR 397; Kavir Pty Ltd v Dwyer [1973] Qd R 192. See also Trustees of the Daughters of Our Lady of the Sacred Heart v Registrar General (2008) 22 NTLR 150. 101. (1978) 27 ALR 535 at 545. 102. Corporations Act 2001 (Cth) s 21(3)(a) and cf Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 60 NSWLR 425. 103. PT Ltd v Maradona Pty Ltd (1991) 25 NSWLR 643 at 654–5 per Giles J. 104. (2002) 1 WLR 1269 at [52]–[55]. 105. [1970] 1 WLR 1167 at 1172. 106. Konamaneni v Rolls Royce Industrial Power (India) Ltd and Pergamon Press Ltd v Maxwell were cited with approval by Barrett J in Oates v Consolidated Capital Services Ltd (2008) 66 ACSR 277 and in Titchfield Management Ltd v Vaccinoma Inc (2008) 68 ACSR 448. 107. [2005] 1 WLR 1316 at [56]. See also Shaker v Al-Bedrawi (Peter Gibson and Arden LJJ, Bodey J) [2003] 2 WLR 922; 1 BCLC 157; (2003) BCC 465 (pet. dismissed); [2004] 1 WLR 232. Compare Paramasivam v Flynn (1998) 90 FCR 489 at 503 and Ch 21 above. 108. [2005] 1 WLR 1316 at [69]. 109. See Titchfield Management Ltd v Vaccinoma Inc (2008) 68 ACSR 448 at 455. 110. (2010) 243 FLR 177 at [347]–[359], reversed on other grounds (2011) 244 CLR 427.

See, for example, Konamaneni v Rolls Royce Industrial Power (India) Ltd [2002] 1 WLR 1269 at 111. [155]; Smay Investments Ltd v Sachdev [2003] 1 WLR 1973. 112. See Chapter 8 above. 113. [2002] 1 WLR 1269. 114. [1982] Ch 204. 115. Batchelder v Kawamoto, 147 F 3d 915 (9th Cir, 1998). 116. [2001] QSC 004. 117. [2006] 2 Qd R 81. 118. (2009) 76 NSWLR 69 at [101]. 119. United Service Insurance Co v Lang (1935) 35 SR (NSW) 487; Re Usines de Melle’s Patent (1954) 91 CLR 42. 120. Section 582(3) applies to ‘Part 5.7 bodies’, which is defined by the Dictionary in s 9 to include both registered foreign companies and unregistered foreign companies doing business in Australia. A detailed description of the law with respect to the winding up of foreign companies, and the winding up of Australian companies with foreign creditors or foreign assets, is contained in Ch 36 below. 121. Russian and English Bank v Baring Bros & Co [1936] AC 405 at 428, 429 per Lord Atkin; T M Burke Estates Pty Ltd v P J Constructions (Vic) Pty Ltd (in liq) [1991] 1 VR 610. 122. National Bank of Greece and Athens SA v Metliss [1958] AC 509. 123. Sipad Holding ddpo v Popovic (1995) 61 FCR 205. 124. (2005) 148 FCR 310 at [64]. 125. Cf the discussion of renvoi in Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331. 126. SC (NSW), 17 December 1998, unreported. 127. [1958] AC 509. 128. Adams v National Bank of Greece SA [1961] AC 255.

[page 808]

Chapter 36

Bankruptcy and Corporate Insolvency Introduction 36.1 Both bankruptcy and corporate insolvency present problems of considerable complexity where assets—whether real or personal property—are located in different jurisdictions, and where those jurisdictions have different insolvency regimes, including different rules as to the getting in of assets, the avoidance of transactions, set-off and in relation to the distribution of assets to creditors. The common law developed various principles designed to promote consistency and co-operation in cases of cross-border insolvency based upon a theory of ‘modified universalism’1 —the notion that there should be a single administration which collects and distributes assets on a worldwide basis, but reserves to the local forum ‘the discretion to evaluate the fairness of the foreign home state procedures and to protect the interests of local creditors’2 —but these principles were somewhat ad hoc, and not always consistent.3 36.2 The passage of the Cross-Border Insolvency Act 2008 (Cth) (the CrossBorder Insolvency Act), applicable both to bankruptcy and corporate insolvency, and which, subject to some minor variations, gives the UNCITRAL Model Law on [page 809] Cross-Border Insolvency (the Model Law) the force of law in Australia, is a most significant statutory development.4 The Act is designed to reduce, insofar as it is possible, the myriad complexities which can arise in cases of cross-border

bankruptcy and insolvency by a combination of jurisdictional and facilitative measures involving the active participation and co-operation of the courts. Before considering the key terms of the Model Law, it is desirable to identify certain general principles relating to the effect of a foreign bankruptcy or insolvency on assets of the bankrupt or insolvent company in Australia.

Effect of Foreign Bankruptcy and Insolvency: General Principles 36.3 Generally speaking, our courts will treat a foreign bankruptcy as an assignment of all the bankrupt’s movables situated in the forum to the foreign trustee, curator or liquidator, provided the foreign law purports to apply to property situated in the forum.5 At one stage it was thought that only a bankruptcy declared by the court of the bankrupt’s domicile would have this effect,6 but since the decision of Phillimore J in Re Anderson7 it is clear that the title of the non-domiciliary trustee or curator will generally be given effect to. 36.4 A foreign bankruptcy has by itself no effect on the bankrupt’s title to immovable property situated in the forum,8 but in some cases the courts have appointed the foreign trustee as receiver of the local real estate or of the proceeds of its sale.9 An Australian court acting in aid of a foreign court in pursuance of s 29 of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act) can make orders vesting Australian immovable property in the foreign trustee.10 This will also now be facilitated by Art 21 of the Model Law, discussed more fully below. 36.5 Originally the effect of a foreign bankruptcy (or insolvency) on local movables was seen as the application of the ancient maxim mobilia sequuntur personam (‘movables follow the person’). In Hall v Woolf11 the High Court held that the assignment effected by the foreign bankruptcy order only operated on assets owned or acquired [page 810] by the bankrupt within the forum, as long as the bankrupt remained domiciled in the adjudicating forum and did not extend to assets acquired by the bankrupt after they acquired a new domicile, even though the foreign bankruptcy law purported to vest in the trustee all property acquired during the bankruptcy. But,

as we will see, the bankrupt’s domicile is not the only forum that will be recognised. In Re Anderson,12 effect was given in England to the vesting in the New Zealand trustee of English movables of the bankrupt who had participated in the New Zealand bankruptcy proceedings, even though he was at all times domiciled in England. A party who presents a debtor’s petition or appears as a respondent in foreign bankruptcy proceedings will also have their movables within the forum assigned to the foreign trustee regardless of domicile.13 This, as the Full Court of the Federal Court of Australia pointed out in Radich v Bank of New Zealand,14 makes the High Court decision in Hall v Woolf appear anomalous and probably wrong.15 36.6 The High Court has also held that a foreign bankruptcy cannot have any greater effect than a voluntary assignment from the bankrupt to the trustee under the lex situs. In AMP Society v Gregory,16 a debtor whom the court presumed was domiciled in Natal, had been made bankrupt under the law of that colony. The bankrupt was entitled under his father’s will to share in the income and proceeds of real estate situated in Tasmania. After he had been made bankrupt he assigned his interest to the Australian Mutual Provident Society by way of security. The same day notice of this assignment was given to the trustees of the will. Only subsequently did the trustees receive notice of the Natal bankruptcy. The question before the High Court was whether the Natal trustee or the Australian Mutual Provident Society was entitled to the interest. The High Court held that the interest of the bankrupt was immovable property and for that reason did not vest in the foreign trustee. But even on the assumption that it was a movable asset, the claim for the foreign trustee failed. As Griffith CJ pointed out:17 [T]he recognition afforded by the rules of private international law to an assignment to creditors under the law of a foreign country extends only to recognising it as having the same validity as an assignment made in accordance with the laws of the situs of the movable.

The assignment effected under the law of Natal, though overriding all other transactions under the law of that country, was to be treated by the Tasmanian court as any other voluntary assignment made by the bankrupt under the law of Tasmania and subject to such priorities and equities as the law of Tasmania might impose. Since the trustees had received prior notice of the second assignment, the second assignment was therefore held to prevail. 36.7 Three conclusions can be drawn from this decision. In the first place, the assignment effected by the foreign bankruptcy must comply with any requirements

[page 811] imposed by the lex situs in order to complete the title of the trustee. Second, in the case of any conflicting claims, their respective priorities must be determined according to the lex situs. Third, the foreign trustee takes the assignment subject to such rights, encumbrances and other equities as exist in relation to the property under the lex situs and have priority over the trustee’s claim under that law. Thus, if a creditor levies execution upon local assets of the bankrupt before the date of the foreign bankruptcy order, the right of the creditor will prevail over that of the trustee notwithstanding any ‘relation back’ provisions in the foreign bankruptcy law.18 36.8 Since the foreign bankruptcy operates as an assignment only, other aspects of the foreign bankruptcy law, such as provisions for relation back,19 prohibitions of future dealings by the bankrupt with the property,20 or extended definitions of ‘property’,21 are not given extraterritorial effect.

The effect of a discharge under foreign law 36.9 In line with the general principle that Australian courts only give effect to a foreign bankruptcy in so far as it operates as an assignment of property, a discharge from liability obtained under a foreign bankruptcy law is not per se entitled to recognition in Australia.22 But a plaintiff who has taken advantage of the bankruptcy laws of a foreign country may be estopped from proceeding against the bankrupt in the forum.23 In the case of a contractual liability, if the discharge from liability was obtained in the country of the proper law of the contract, the discharge will be given effect to in accordance with the general proposition that a discharge from liability according to the proper law will discharge the defendant from liability in the forum.24 The same principle also applies where, short of a discharge, the bankruptcy law of the proper law of the contract prohibits the bringing of an action against the bankrupt to enforce the obligation.25 36.10 In the case of a tortious liability there does not appear to be any authority but, following general principles, it would seem that a discharge from liability effected under the lex loci delicti should be given effect to in the forum.

The Model Law

Purpose and key features 36.11 The Model Law, as implemented through the Cross-Border Insolvency Act, does not depend upon the debtor or their assets being physically situated in [page 812] states also signatory to the Model Law. The purpose of the Model Law is to provide effective mechanisms for dealing with cases of cross-border insolvency so as to promote the objectives of: co-operation between the courts and other competent authorities of different countries involved in cases of cross-border insolvency; greater legal certainty for trade and investment; fair and efficient administration of cross-border insolvencies that protect the interests of all creditors and other interested persons including the debtor; protection and maximisation of the value of the debtor’s assets; facilitation of the rescue of financially troubled businesses, thereby protecting investment and preserving employment.26 36.12 Key features of the Model Law include: the giving of access to foreign insolvency representatives and foreign creditors to Australian courts and insolvency proceedings;27 a regime for the recognition of foreign insolvency proceedings including ‘a foreign main proceeding’, being an insolvency proceeding taking place in the state where the debtor has ‘the centre of its main interests’;28 specification of relief, including interim relief, that may be granted upon application for recognition of the foreign proceeding;29 specification of the effects of recognition of a foreign main proceeding;30 provision for co-operation with foreign courts and foreign insolvency representatives including in respect of concurrent proceedings.31 36.13 The recognition of a foreign bankruptcy or winding up or administration

in Australia is governed by Chapter III of the Model Law. Article 15(1) provides that a foreign representative, being a person or body authorised in a foreign insolvency proceeding to administer the reorganisation or liquidation of the debtor’s assets or affairs, may apply for recognition of the foreign insolvency proceeding by an Australian court. This is an essentially mechanical application, the requirements for which are specified in s 13 of the Cross-Border Insolvency Act and Arts 15 and 17 of the Model Law. In order for a foreign proceeding to be recognised, the foreign proceeding must be a collective judicial or administrative proceeding in a foreign state pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganisation or liquidation.32 ‘Insolvency’ in this context, has been said to refer broadly to companies in severe financial distress.33 Examples of foreign proceedings which have [page 813] been recognised in Australia include Italian concordato preventino proceedings;34 Korean rehabilitation proceedings;35 proceedings under the United States Bankruptcy Code involving the appointment of a debtor-inpossession;36 proceedings under the United Kingdom Investment Bank Special Administration Regulations 2011;37 and proceedings under the Corporate Reorganisation Act of Japan.38 It has been held in England that a ‘receivership’ was not a ‘foreign proceeding’ for the purposes of equivalent legislation and that, consequently, a receiver not yet authorised to administer the liquidation or administration of a company was not yet a ‘foreign representative’ for the purposes of the legislation.39 A liquidator of a company ordered in a foreign proceeding to be wound up on the just and equitable ground without any express or implied finding of insolvency was accepted as a foreign representative in Re Chow Cho Poon (Private) Ltd40 on the basis that he was appointed pursuant to a (Singaporean) ‘law relating to insolvency’. The recognition of a foreign proceeding as a ‘foreign main proceeding’ is a more complex exercise, the nature of which is considered further below. 36.14 Upon a foreign proceeding being recognised by an Australian court, the court may, pursuant to Art 21 of the Model Law, at the request of the foreign representative, grant ‘any appropriate relief’ including:

staying the commencement or continuation of individual actions or individual proceedings concerning the debtor’s assets, rights, obligations or liabilities; staying execution against the debtor’s assets; suspending the right to transfer, encumber or otherwise dispose of any assets of the debtor; providing for the examination of witnesses, the taking of evidence or the delivery of information concerning the debtor’s assets, affairs, rights, obligations or liabilities; entrusting the administration or realisation of all or part of the debtor’s assets located in this state to the foreign representative or another person designated by the court;41 and extending interim relief granted under Art 19, para 1. 36.15 Urgent relief may also be granted on the application of the foreign representative from the time of the filing of an application for recognition until the application is decided upon.42 In granting such relief, the court must be satisfied [page 814] that the interests of creditors and other interested persons, including the debtor, are adequately protected and conditions may be grafted on to any relief granted.43 36.16 The relief under Art 21 is discretionary, and the manner in which the discretion will be exercised, at least in respect of some forms of relief, is likely to be influenced by the degree of connection of the debtor, whether an individual or a company, to the forum. If, however, the foreign proceeding which is recognised is recognised as a ‘foreign main proceeding’, the discretion of the local court becomes more circumscribed. The consequences of recognition of a ‘foreign main proceeding’ are spelt out in Art 20: commencement or continuation of individual actions or individual proceedings concerning the debtor’s assets, rights, obligation or liabilities is stayed;44

execution against the debtor’s assets is stayed; and the right to transfer, encumber or otherwise dispose of any assets of the debtor is suspended. 36.17 As Professor Westbrook has observed: [T]he choice of principal forum [or recognition of foreign main proceedings, to use the language of the Model Law] in turn will have important implications for the choice of the bankruptcy rules to be applied and therefore the substantive outcomes for stakeholders.45

In other words, a jurisdictional choice will drive the substantive legal outcome.

Foreign main proceeding 36.18 Article 17(2) of the Model Law provides that a foreign proceeding shall be recognised as ‘a foreign main proceeding’ if it is taking place in the state where the debtor has the ‘centre of its main interests’. This term is not defined in either the Model Law or the Cross-Border Insolvency Act but it is perhaps the most critical concept in the entire Model Law. What, then, is meant by the concept of the ‘centre of [the debtor’s] main interests’? The Explanatory Memorandum to the Act states that ‘the bill does not seek to define the centre of main interests as a considerable body of common law exists in overseas jurisdictions in relation to that concept’. In this context, Art 8 of the Model Law provides that ‘in the interpretation of the present Law, regard is to be had to its international origin and to the need to provide uniformity in its application and the observance of good faith’.46 In Moore [page 815] (as debtor-in-possession of Australian Equity Investors v Australian Equity Investors),47 Emmett J noted that the term ‘centre of main interest’ was one that had been used in international arrangements for some years, was not a term of art under Australian law, and that it was important in terms of international comity and consistency in the administration of a municipal law that incorporates the Model Law that terms used in the Model Law be given consistent constructions.48 36.19 The claim in the Explanatory Memorandum as to the existence of ‘a considerable body of common law in overseas jurisdictions’ is somewhat of an

overstatement, although the body of law is growing. The starting point in relation to the meaning of ‘centre of main interest’, however, is the presumption contained in Art 16(3) of the Model Law that, in the absence of proof to the contrary, the place of a company’s registered office will be presumed to be the centre of its main interests.49 It is far from unusual, however, for a company to be registered in one jurisdiction (for perceived regulatory, tax or other financial advantages, for example) but to operate in substance elsewhere. The presumption is a powerful one, however, and it would appear may only be rebutted by reference to matters that are ascertainable by third parties. Thus, for example, the fact that a company whose registered office was in England kept its bank account in Belgium was not a matter capable of being called in aid to rebut the presumption in circumstances where that was ‘not the sort of thing that a third party would necessarily know, or even be able to ascertain’.50 The Art 16(3) presumption has been said to have been intended, in the absence of proof as to its displacement, to avoid the court having to spend what may be considerable time in trying to weigh various transactions and commercial activities undertaken by the debtor throughout the world.51 The fact that courts in other jurisdictions operating under Model Law have acted upon the presumption in relation to a particular debtor prior to the application for recognition in Australia may be taken into account by an Australian company in recognition proceedings.52 36.20 In Shierson v Vlieland-Boddy,53 Chadwick LJ, with whom Longmore LJ and Sir Martin Nourse agreed, distilled the following five principles in relation to the ‘centre of main interest’: (1) A debtor’s centre of main interests is to be determined at the time that the court is required to decide whether to open insolvency proceedings. In a case where those proceedings are commenced by the presentation [page 816] of a bankruptcy petition, that time will normally be the hearing of the petition. But, in a case such as the present, where the issue arises in the context of an application for permission to serve the petition out of the jurisdiction, the time at which the centre of the debtor’s main interests falls to be determined will be at the hearing of that application. Similar

considerations would apply if the court were faced with an application for interim relief in advance of the hearing of the petition. (2) The centre of main interests is to be determined in the light of the facts as they are at the relevant time for determination. But those facts include historical facts which have led to the position as it is at the time for determination. (3) In making its determination the court must have regard to the need for the centre of main interests to be ascertainable by third parties; in particular, creditors and potential creditors. It is important, therefore, to have regard not only to what the debtor is doing but also to what he would be perceived to be doing by an objective observer. And it is important, also, to have regard to the need, if the centre of main interests is to be ascertainable by third parties, for an element of permanence. The court should be slow to accept that an established centre of main interests has been changed by activities which may turn out to be temporary or transitory. (4) There is no principle of immutability. A debtor must be free to choose where he carries on those activities which fall within the concept of ‘administration of his interests’. He must be free to relocate his home and his business. And, if he has altered the place at which he conducts the administration of his interests on a regular basis—by choosing to carry on the relevant activities (in a way which is ascertainable by third parties) at another place—the court must recognise and give effect to that. (5) It is a necessary incident of the debtor’s freedom to choose where he carries on those activities which fall within the concept of ‘administration of his interests’, that he may choose to do so for a selfserving purpose. In particular, he may choose to do so at [a] time when insolvency threatens. In circumstances where there are grounds for suspicion that a debtor has sought, deliberately, to change his centre of main interests at a time when he is insolvent, or threatened with insolvency, in order to alter the insolvency rules which will apply to him in respect of existing debts, the court will need to scrutinise the facts which are said to give rise to a change in the centre of main interests with that in mind. The court will need to be satisfied that the change in the place where the activities which fall within the concept of ‘administration of his interests’ are carried on which is said to have

occurred is a change based on substance and not an illusion; and that that change has the necessary element of permanence. These principles have been adopted and applied in Australia.54 36.21 In In the Matter of Stanford International Bank Ltd,55 Lewison J pointed out a divergence which has emerged between the European and (therefore) English [page 817] interpretation of ‘centre of main interests’ with the emphasis on the ‘ascertainability’ by third parties of that place, and the emerging United States approach which is to look for the jurisdiction with the most material contacts whether ascertainable or not, such contacts including the location of: the debtor’s headquarters; those who actually manage the debtor; the debtor’s primary assets; a majority of the debtor’s creditors or a majority of creditors who would be affected by the case; and the jurisdiction whose law would apply to most disputes.56 In Akers v Saad Investments Co Ltd,57 Rares J indicated a preference for the approach in Stanford over the United States approach given the importance to international commerce and to third parties of having an objective, ascertainable basis upon which to commence and decide proceedings that will govern winding up in insolvency of a debtor under the Model Law. Lewison J’s approach in Stanford was subsequently upheld by the English Court of Appeal.58 36.22 In Re Eurofood IFSC,59 the European Court of Justice had to decide where a subsidiary debtor of a parent company had its centre of main interest. This was a decision under European Council Regulation 1346/2000 on insolvency proceedings. The decision was plainly influenced by the fact that the 13th recital of the Regulation stated that the centre of main interest should correspond to the place where the debtor conducts the administration of their business on a regular basis and is therefore ascertainable by third parties. It was held that this presumption could only be rebutted by reason of factors that were objective and ascertainable by third parties. Thus, the mere fact that the subsidiary may be subject to the control or directions of a parent company situated in a different jurisdiction did not affect the question of the locus of the subsidiary’s centre of main interest.

Concurrent bankruptcy and insolvency proceedings 36.23 The jurisdiction of the forum was traditionally not excluded by the fact that the debtor had already been declared a bankrupt or insolvent by a foreign court. The Model Law contemplates that there may be concurrent bankruptcy or insolvency proceedings although Art 2160 and the role and consequences of recognition of a ‘foreign main proceeding’ are designed to minimise this. 36.24 In Re Artola Hermanos,61 the debtors were members of a firm that had its head office in Paris but possessed large assets in England. The firm had been declared bankrupt in France and a syndic had been appointed to administer the estate. Subsequently, bankruptcy proceedings against the debtor were instituted in England and an order made appointing an interim receiver. The French syndic moved to set [page 818] aside the order. The Court of Appeal refused to set aside the order. According to Fry LJ,62 there were three views between which the court ought to choose: ‘[T]hat where there are concurrent bankruptcies each forum is to administer the assets locally situated within its jurisdiction, each forum of course allowing all the creditors, wherever resident, to prove.’This is the view to which his Lordship clearly inclined. ‘[E]very other forum shall yield to the forum of the domicile’ of the debtor. This view, an outcome of the ancient doctrine that movables follow the person of the owner and are deemed to be situated wherever the owner is domiciled, was certainly the prevailing view in the middle of the nineteenth century. But, by the time Re Artola Hermanos was decided, it had lost much of its force, especially since English courts had already asserted jurisdiction to administer the local assets of deceased persons dying domiciled abroad.63 Both Fry LJ64 and Lord Coleridge CJ,65 though expressing some sympathy for the doctrine of unity of bankruptcy based on the domicile of the debtor, doubted its continued validity. ‘[T]he forum of the country in which the debtor has assets and which first adjudicates him bankrupt, although it be not the forum of the domicile, is entitled to claim the assets from the tribunals of other countries in which he

has assets.’This was the view upon which the applicant relied since he was unable to prove that France was the domicile of the debtors. It was rejected by Fry LJ as being ‘unreasonable’.66 36.25 The competing scenarios explored in Re Artola Hermanos present precisely the conceptual conundrum which the Model Law seeks to address through the rationalisation of multiple bankruptcy and insolvency proceedings. Thus, as has already been noted at 36.16, if a ‘foreign main proceeding’ has been recognised by an Australian court under Ch III of the Model Law, a proceeding under the Bankruptcy Act or the Corporations Act 2001 (Cth) (the Corporations Act) may be commenced only if the debtor has assets in Australia. This is the effect of Art 28 of the Model Law. Subsequently commenced proceedings will be restricted to those assets. 36.26 Where Australian courts do have concurrent jurisdiction, they need not exercise it. They have a jurisdiction to stay proceedings,67 or to rescind an order already made.68 Thus, courts have refused to exercise a concurrent jurisdiction on the application of the debtor,69 and where the bankrupt had no assets in the forum,70 or where there are no local creditors and the foreign trustee will be able to collect the [page 819] assets within the forum.71 However, in the main they have been reluctant to decline jurisdiction. As Fry LJ said in Re Artola Hermanos:72 A receiving order ought to be pronounced, where the conditions of the Act have been satisfied, unless there be some valid reason to the contrary.

36.27 In Chapman v Travelstead,73 French J (as he then was) held that although there is no general principle that the first forum to pronounce bankruptcy must displace every other forum,74 considerations of international comity favour the view that if a court finds that there is already pending in another country a process of universal distribution of a bankrupt’s estate, it should not allow steps to be taken in its territory which would interfere with the process of universal distribution.75 36.28 In both Chapman itself and Taylor v Dow Corning Australia Pty Ltd,76 it was held that continuation of non-bankruptcy proceedings in Australia would not detrimentally affect the administration of the United States bankruptcy or a

Chapter 11 reorganisation plan, because they could be enforced against assets in Australia. By extension of the reasoning in Chapman and Taylor, it would seem that continuation of Australian bankruptcy proceedings dealing with assets in Australia would not necessarily offend against the comity considerations referred to by French J in Chapman. 36.29 Where there are concurrent proceedings regarding the same debtor, Art 29 of the Model Law requires an Australian court to seek co-operation and coordination under Arts 25, 26 and 27. Article 25(2) permits the Australian court to communicate directly with, or to request information or assistance directly from, foreign courts or foreign representatives, while Art 26(2) gives the same power to a trustee in bankruptcy, but subject to the supervision of the Australian court.

Recognition of a foreign order where the Australian court exercises concurrent jurisdiction 36.30 Assuming that the foreign tribunal was a court of proper jurisdiction, must a bankruptcy decreed by it automatically be given the effect of an assignment of local movable assets? There are some nineteenth century cases in which a foreign bankruptcy order was denied effect on movable property in the forum,77 but all these cases rest upon the theory, now exploded, that only a bankruptcy in the debtor’s domicile operates as a universal assignment. [page 820] 36.31 On the other hand, in Re Artola Hermanos,78 Fry LJ described the view that ‘the forum of the country in which the debtor has assets and which first adjudicates him bankrupt is entitled to claim the assets from the tribunals of other countries in which he has assets’ as entirely ‘unreasonable’.79 Lord Coleridge agreed with him in holding that an English court was entitled to exercise concurrent jurisdiction in bankruptcy. 36.32 How can the right of the Australian court to exercise a concurrent jurisdiction in bankruptcy be reconciled with the principle that the title of the foreign trustee to local assets should be recognised? The appointment of a local trustee can only be justified if there are local assets to be administered. But, if the prior bankruptcy must be recognised as vesting in the local trustee all the local movable assets of the bankrupt, then the local trustee will have no assets to administer unless the bankrupt has within the jurisdiction immovable property or

after-acquired property, or the foreign bankruptcy law does not purport to have extraterritorial effect.80 36.33 In Re Anderson81 Phillimore J made two, not altogether consistent, suggestions. In the first place, he suggested that the title of a foreign trustee is not to be recognised automatically in England but in some way has to receive the sanction of the English courts. He cannot have meant that the title of the foreign trustee has to remain suspended until endorsed by an English court, for this would conflict with his own decision in Re Anderson. In that case a debtor, whose domicile was English and who was entitled to a reversionary interest in personalty in England, had been declared bankrupt in New Zealand. After he had obtained his discharge in New Zealand he was again made bankrupt in England. The reversionary interest which by oversight had not been disclosed in the New Zealand bankruptcy, was discovered by the trustee in bankruptcy in England who at once gave notice of his title to the trustee of the fund. Nonetheless, it was held by Phillimore J that the official assignee in New Zealand was entitled to the reversionary interest since the effect of the New Zealand order had been to vest that property in the New Zealand official assignee. Thus, he viewed the title of the New Zealand official assignee as automatic and not in any way dependent upon prior approval by an English court. 36.34 What Phillimore J may have meant is that an English court could divest the foreign trustee of that title by refusing to give effect to it in later proceedings, particularly if the English court exercised a concurrent jurisdiction in bankruptcy. On this view the English court in Re Artola Hermanos, in exercising concurrent jurisdiction in bankruptcy, gave its trustee an independent title to the assets of the bankrupt situated in England. This would mean that the forum has an option either to exercise a concurrent and independent jurisdiction or to decline jurisdiction and to allow the foreign trustee to collect, administer and distribute the assets that are within the jurisdiction. This was the view taken by the Full Court of the Federal [page 821] Court in Radich v Bank of New Zealand82 when it declined to make a sequestration order in respect of a debtor who had already been made a bankrupt in New Zealand. 36.35 Explained in this way, the Australian approach can be seen to have been

essentially one of modified universalism, which is to be contrasted with the ‘territoriality’ approach predominant in the nineteenth and early twentieth centuries. Under the ‘territoriality’ approach, sometimes known as the ‘grab rule’, the court in each jurisdiction where the debtor had assets distributed the assets located in that jurisdiction pursuant to local rules.83 Under the ‘universality’ approach, an insolvency proceeding in one country is recognised as being primary and ancillary courts in other jurisdictions defer to that foreign primary proceeding, in effect collaborating to facilitate the centralised liquidation of the debtor’s estate according to the rules of the country of the primary proceeding.84 36.36 As has already been seen, the Model Law as given force of law in Australia by the Cross-Border Insolvency Act, also mandates a form of modified universalism, identifying one bankruptcy proceeding as being the ‘main proceeding’85 and restricting the reach of proceedings in other countries.

International judicial co-operation in bankruptcy and insolvency 36.37 Article 25 of the Model Law requires a court to co-operate to the maximum extent possible with foreign courts86 or foreign representatives, either directly or through a person or body administering a reorganisation or liquidation under the law of the enacting state. In a fairly radical way, from the point of view of the common law tradition, Art 25(2) permits the court to communicate directly with, or to request information or assistance directly from, foreign courts or representatives. An example of such a communication is set out in the Appendix to the judgment in Re Parbery (in their capacity as liquidators for Lehman Brothers Australia Ltd (in liq)).87 In his decision in that case, Jacobson J accepted the view that inter-court communications can have a vital role to play in major cross-border insolvencies but that the principle of comity dictated that they should not seek to pre-empt matters to be considered by the judge in the foreign proceedings. nor to enter into substantive discussions with the foreign court on matters of controversy that may arise for decision. Article 26 of the Model Law requires a trustee in bankruptcy, liquidator or administrator, in the exercise of its functions and subject to the supervision of the court, to co-operate to the maximum extent possible with foreign courts or foreign representatives and permits them, in the exercise of those functions and subject to the supervision of the court, to communicate directly with foreign courts or foreign

representatives. Article 27 provides that the forms of co-operation referred to in Arts 25 and 26 may be implemented by any appropriate means, including: [page 822] appointment of a person or body to act at the direction of the court; communication of information by any means considered appropriate by the court; co-ordination of the administration and supervision of the debtor’s assets and affairs; approval or implementation by courts of agreements concerning the coordination of proceedings; and co-ordination of concurrent proceedings regarding the same debtor. Rubin v Eurofinance SA88 is an important recent decision of the United Kingdom Supreme Court, which considered the question whether enforcement of a default judgment of a foreign court for a monetary sum in respect of fraudulent conveyances could be effected through the assistance provisions of the crossborder insolvency regulations in circumstances where that judgment could not be enforced at common law. It was held that neither Art 21 nor Art 25 of the Model Law applied to recognition and enforcement of foreign judgments against third parties in connection with a debtor’s insolvency. 36.38 Section 29(2)(a) of the Bankruptcy Act directs the Australian courts to act in aid of the courts of external territories and of prescribed overseas countries that have jurisdiction in bankruptcy, and in para (b) gives the Australian courts a discretionary power to act in aid of the courts of other countries. ‘Prescribed countries’ are defined in subs (5) as the United Kingdom, Canada and New Zealand, including their dependent territories such as the Channel Islands, the Cook Islands and the like.89 Jersey, Malaysia, Papua New Guinea, Singapore, Switzerland and the United States have been prescribed by regulation.90 An equivalent provision to s 29(2) of the Bankruptcy Act is to be found in s 581(2) of the Corporations Act with regard to companies. Section 29 is, by s 21 of the Cross-Border Insolvency Act, made subject to that Act and the Model Law (given the force of law by virtue of it) to the extent of any inconsistency. There is, however, no obvious inconsistency. Section 22 of the Cross-Border

Insolvency Act is to similar effect with respect to s 581(2) of the Corporations Act. 36.39 It has been held that s 29(2) (and, by analogy, s 581(2)) requires the relevant Australian court to give all assistance it can to a requesting court, leaving the local court with a discretion as to what assistance ought to be given (including any conditions to be attached to the provision of assistance).91 The same strong sentiment of co-operation will undoubtedly prevail in the context of Arts 25–27 of the Model Law, as implemented by the Cross-Border Insolvency Act. [page 823] 36.40 Under the Bankruptcy Act, upon receipt of a letter of request for assistance from a prescribed or other country, the court may exercise such powers as if the matter had arisen within its own jurisdiction.92 The effect of this provision was considered by the Full Court of the Federal Court in Ayres v Evans.93 In that case, the Official Assignee of a New Zealander’s bankrupt estate sought the aid of the Federal Court to obtain control of the bankrupt’s estate in Australia. The majority of his proved debts were revenue debts due to the Crown in right of New Zealand. It was argued for the debtor that the enforcement of such debts in Australia was contrary to public policy. 36.41 The Full Court by majority (Northrop and McGregor JJ, Fox J concurring on a different ground) took the view that the mandatory provisions of s 29(2)(a) of the Bankruptcy Act excluded the operation of the public policy against the enforcement of foreign revenue debts, at least so far as prescribed countries are concerned. There is little doubt that in relation to a bankruptcy order made in a prescribed country, the Australian court can, and generally speaking should, make orders vesting the local assets, whether movable or immovable, of the bankrupt in the name of the overseas trustee or assignee, including assets acquired locally after the foreign order was made.94 There is also power to appoint a receiver of the debtor’s property in Australia in aid of the administration overseas of the insolvent estate.95 In Dick v McIntosh,96 it was held that the court’s power to vest property in a receiver was not limited to the making of orders with respect to presently identifiable property or property beneficially owned solely by the bankrupt. Orders can also be made for the examination of the bankrupt as to their local assets and income, and the court

can make, if the law of the foreign bankruptcy permits it, orders as to the payment of part of the current income to the foreign trustee.97 Re Independent Insurance Co98 is also authority for the proposition that orders may be made restraining creditors from commencing proceedings in Australia against a foreign bankrupt or their property without leave of the foreign court, and then subject to such terms as that court may impose. 36.42 While it has been held that an Australian court has a discretion as to the assistance it may give under s 29(3),99 such statements need now to be understood as subject to the Model Law’s requirement of co-operation ‘to the maximum extent possible’: see 36.37 above. Generally speaking, the discretion should be exercised, [page 824] at least in relation to prescribed countries, on factors relevant to the debtor’s situation in Australia or the use to be made of funds to be collected in Australia, and the court should not concern itself with the circumstances in which the sequestration order was made abroad or in which the debts were admitted in proof.100 36.43 Conversely, pursuant to s 29(4) of the Bankruptcy Act, a court may issue letters of request to the courts of overseas countries requesting them to act in aid of and be auxiliary to it in any matter of bankruptcy,101 and the complexities of modern cross-border insolvency are likely to result in an increase in the frequency of such requests.102 The court has a discretion about whether to act under this provision, but in deciding whether to ask for assistance, the court should not consider the likelihood (or otherwise) of assistance being given.103 Normally, it will be necessary to give notice of an application for such a request to the bankrupt.104 36.44 In the case of a foreign corporation which is registered in Australia and subject to the appointment of receivers, official management, winding up or like proceedings outside Australia, an Australian court shall act in aid of the courts of prescribed countries and may do so in relation to the courts of other countries.105 If a formal request from a foreign court is filed, the court may exercise such power with respect to the matter as it could exercise if the matter had arisen within its own jurisdiction;106 that is, exercise any or all of its powers under Chapter 5 of the Corporations Act.

36.45 Conversely, an Australian court may request the assistance in such matters of a foreign court.107 An important example of such a request is illustrated by the decision of the House of Lords in Re HIH Casualty and General Insurance Limited; McGrath v Riddell108 which involved an analysis of the principles to be applied under what was broadly the United Kingdom equivalent of s 29(1) of the Bankruptcy Act.109 In that case, the Supreme Court of New South Wales had issued a letter of request to the High Court of Justice, asking that the English provisional liquidators of certain Australian insurance companies authorised to carry on insurance business in the United Kingdom be directed, after payment of their expenses, to remit the companies’ United Kingdom assets to the Australian liquidators for distribution. At both first instance and in the Court of Appeal, this request was declined on the basis that the scheme for pari passu distribution under Australian insolvency law was not substantially the same as that under English law, with the Australian scheme giving preference to insurance creditors in priority and to the prejudice of HIH’s general [page 825] creditors. The issue of principle for the House of Lords, then, was whether or not the inherent and statutory power to lend assistance to a foreign insolvency could be exercised in a manner which was inconsistent with the insolvency regime of the state to which the request was directed and which would lead to a different distribution of the United Kingdom assets to that which would have been obtained had those assets been distributed by the provisional liquidators in England. Lord Hoffmann interpreted the court’s power broadly, observing that it would make no sense to confine the power of English assets to cases in which the foreign law of distribution coincided with English law. Rather, the power was far broader and, as his Lordship noted, the whole doctrine of ancillary winding up is based upon the premise that in such cases the English court may ‘disapply’ parts of the statutory scheme by authorising the English liquidator to allow actions which they are obliged by statute to perform according to English law to be performed instead by the foreign liquidator according to the foreign law (including its rules on conflict of laws). Considerations of international judicial comity as well as notions of the ‘natural insolvency forum’ are at play. Thus, Lord Hoffmann also noted that: The power to remit assets to the principal liquidation is exercised when the English court decides

that there is a foreign jurisdiction more appropriate than England for the purposes of dealing with all outstanding questions in the winding up. It is not a decision on the choice of law to be applied to those questions. That will be a matter for the court of the principal jurisdiction to decide.110

Lord Hoffmann referred to the principle of modified universalism as ‘the golden thread running through English cross-border insolvency’ since the eighteenth century. That principle requires that English courts should, so far as is consistent with justice and United Kingdom public policy, co-operate with the courts in the country of the principal liquidation to ensure that all the company’s assets are distributed to its creditors under a single system of distribution. In that particular case, there was no question that Australia was the appropriate place for the liquidation to occur. In other cases, identification of the appropriate or principal place for liquidation will not be so easy and, as earlier observed, the concept of ‘centre of main interest’ as used in the Model Law gives little practical guidance to courts in this regard. Of course, any decision to remit assets to a principal liquidation as an incident of international judicial co-operation is discretionary and may involve considerations of public policy of the ancillary jurisdiction, the nature of the insolvency regime in the country of the principal liquidation and the conditioning of any remittal of assets in order to provide adequate protection to certain creditors.

Australian Bankruptcy Proceedings With a Foreign Element 36.46 Where there is no foreign bankruptcy or insolvency proceeding on foot, or where there is, but it has not been recognised in Australia as a ‘foreign main [page 826] proceeding’, there remains the scope for the commencement of bankruptcy or insolvency proceedings in Australia, even though the debtor may be a foreign citizen or company. Similarly, and obviously, bankruptcy and insolvency proceedings may be commenced in Australia where the debtor is an Australian citizen or corporation. With an ever-growing global economy, such ‘local’ insolvency proceedings will often have foreign elements; the debtor may, for example, have foreign creditors and/or foreign assets. Further, in the case of corporate insolvency, directors of the insolvent Australian company may reside

(or have moved) overseas. 36.47 Under the Bankruptcy Act, concurrent jurisdiction in bankruptcy ‘throughout Australia’ is vested in the Federal Court of Australia and the Federal Magistrates Court.111 The Supreme Courts of the states and territories no longer have original jurisdiction in bankruptcy, as they once did,112 but they may deal with bankruptcy matters by virtue of the cross-vesting legislation.113 Any of these courts may assume jurisdiction over any matter arising in Australia. In addition the Federal Court or the Federal Magistrates Court may transfer pending proceedings to the Family Court of Australia on the application of one of the parties or on its own motion.114 36.48 The limits to the jurisdiction of Australian courts as regards foreign debtors or transactions can be discovered from ss 40(1) and 43(1) of the Bankruptcy Act. Section 43(1) lays down two prerequisites for jurisdiction, namely that: (a) a debtor has committed an act of bankruptcy; and (b) at the time when the act of bankruptcy was committed, the debtor: (i)

was personally present or ordinarily resident in Australia;

(ii) had a dwelling house or place of business in Australia; (iii) was carrying on business in Australia, either personally or by means of an agent or manager; or (iv) was a member of a firm or partnership carrying on business in Australia by means of a partner or partners or of an agent or manager. Section 7(1) of the Act specifically extends the operation of the Act to debtors who are not Australian citizens. 36.49 Section 40(1)(a)–(n) defines what amounts to acts of bankruptcy. In relation to some grounds it is provided expressly that the act of bankruptcy can be committed in Australia or elsewhere. Those grounds are: if in Australia or elsewhere the debtor conveys their property for the benefit of their creditors generally;115 [page 827]

if in Australia or elsewhere the debtor disposes of or creates any obligation in a transaction that would, if they became a bankrupt, be void as against the trustee,116 if, with intent to defeat or delay their creditors, they depart or remain out of Australia;117 if a creditor has served on the debtor in Australia or by leave of the court outside Australia a bankruptcy notice under the Act with which the debtor has failed to comply.118 36.50 In drafting ss 40(1) and 43(1) of the Act, the drafter adapted to Australian conditions the provisions of the English Bankruptcy Act 1914.119 Though the arrangement of the Act is different, the difference, it is submitted, is not substantive. Since the decision of the House of Lords in Theophile v Solicitor General120 it is clear that no limitation of nationality, domicile or residence is to be read into the word ‘debtor’ as used in s 40(1).121 Provided the debtor is a person who comes within the meaning of s 43(1)(b) it does not matter that the debtor is a foreign national who resides permanently abroad and committed there one or more of the acts of bankruptcy set out in s 40(1)(a), (b), (c) or (g).122 But this does not mean that Australian jurisdiction is unfettered. It may be that no jurisdiction under the Act can be exercised in respect of a debtor ‘who had never been present in Australia, was not resident in Australia, had no place of business or place of residence in Australia, or was not carrying on business in Australia’.123 Leave may be granted to serve a bankruptcy petition, or notice thereof, on a debtor resident outside Australia.124 This can be done by way of substituted, rather than personal, service, even where the relevant process was issued after the debtor left Australia.125 36.51 It is still an open question whether limitations should be read into the clauses themselves. An early decision on similar English legislation suggests that the conveyance mentioned in s 40(1)(a) means a conveyance that is intended to operate according to Australian law.126 Although Lord Porter speaking for the House [page 828] of Lords in Theophile v Solicitor General pointed out127 that this limitation was first introduced at a time when the English Act contained no definition of debtor,

such as is now contained in s 43(1) of the Australian Act, the House of Lords did not consider it necessary to decide this issue in Theophile’s case. 36.52 There is little doubt that, in s 40(1)(b), the disposition or transaction must be one which would, under the law of Australia, be void against the trustee.128 This is not so much a question of jurisdictional limitation, but simply an example of the basic proposition that, in interpreting an Australian statute an Australian court must give the words the ordinary meaning they bear in Australian law. 36.53 Theophile’s case concerned the interpretation of the English equivalent of s 40(1)(c). A foreign businessman, having traded in England, went abroad leaving taxation debts unpaid. A petition was presented on behalf of the Inland Revenue on the ground that with intent to defeat his creditors he went abroad. From the time of his departure he did not have a residence, dwelling house or place of business in England and, for that reason, it was argued on his behalf that he was not a ‘debtor’ under the Act. The House of Lords, however, held that a trader continues ‘carrying on business’ until all trade debts due are collected or such debts, including taxes, are paid.129As, by reason of this fact, he fell within the definition of ‘debtor’ under s 1(2) of the then English Act, which defined that word in terms similar to s 43(1)(b) of the Australian Act, it was no bar to English jurisdiction that he was a foreign national permanently residing abroad.130The intention to defeat creditors need not be the sole reason for departing or remaining away.131 36.54 Similarly, in relation to s 40(1)(g) there is today little doubt that a bankruptcy notice can be served abroad upon a foreign national resident there provided the debtor comes within the provisions of s 43(1)(b).132 Conversely, a bankruptcy notice may be issued by a creditor resident abroad. Such a notice should specify that payment is to be made to the creditor, but also give an address of the creditor in Australia at which there is a person authorised to accept payment.133 If the notice is based on a judgment expressed in foreign currency, the notice must state that payment of the debt is to be made either in that currency or the equivalent in Australian dollars calculated at the average at which Australian dollars may be bought in that currency at the opening telegraphic transfer rate of the Commonwealth Bank of Australia on [page 829] the second business day before the day on which application was made for the

issue of the bankruptcy notice.134 36.55 The Act does not lay down any jurisdictional prerequisite in relation to debtors’ petitions,135 except where a debtor’s petition is presented against a partnership. In the latter case it is provided that a debtor’s petition may be presented by the majority of those members of a partnership who are resident in Australia at the time of presentation of the petition.136 It is to be presumed from these provisions that the omission of jurisdictional requirements is deliberate. If the debtor is the only person involved, he or she may in effect submit to the jurisdiction of the Australian courts. However, the court is not obliged to accept the jurisdiction so offered. In Re Coote,137 a debtor resident in the United States with no assets anywhere and giving no address in Australia at which he could be contacted, but with substantial debts including one which was the subject of an action in the Supreme Court of Victoria, presented a debtor’s petition under the Bankruptcy Act. Northrop J, noting that the whole process took on the appearance of a fraud upon the creditors, directed that the registrar reject the petition.138

Effect of Australian bankruptcy 36.56 Upon the making of the sequestration order, the existing property of the bankrupt is vested in the Official Trustee. After-acquired property of the bankrupt, as soon as it is acquired by them, is vested in the Official Trustee or in the trustee of the property of the bankrupt if such a trustee has been appointed.139 By s 5 of the Bankruptcy Act, ‘property’ is defined as including, unless the contrary appears, all real or personal property of every description, whether situated in Australia or elsewhere. 36.57 Thus, in terms, the provision purports to have a universal effect. It may be that this provision has to be read down by reference to well-established rules of private international law. In Re Doyle (dec’d); Ex parte Brien v Doyle,140 the deceased bankrupt had within the relevant period of two years prescribed in s 120 of the Bankruptcy Act made a gift of immovable property situated in Germany to his wife. The trustee of the estate sought a declaration in personam against the widow (who it appears was within the jurisdiction of the Federal Court) that the transfer was void as against him and that she held the property in trust for him. Burchett J declined to make the declaration sought, holding that the words ‘a settlement of property’ as used in s 120 should be read subject to the rules of private international law as excluding a settlement of immovable

property situated outside Australia. Although his Honour’s decision relied upon the qualification of the contrary appearing in relation to s 120 and therefore did not directly affect the interpretation of the word [page 830] ‘property’ in s 5 itself, it is clear from his reasoning that in his view even those words purporting to have universal effect might have to be read down.141 36.58 Even if Burchett J is wrong and the words ‘whether situated in Australia or elsewhere’ in the definition of property do not permit a reading down, the problem remains whether the Official Trustee can make the statutory rights effective over property situated abroad. Without the co-operation of foreign courts such as was sought and obtained in Re HIH Casualty and General Insurance Limited; McGrath v Riddell,142 this can only be done if the bankrupt or donee is in the forum and can be compelled under s 77(e) of the Bankruptcy Act to execute assignments of the foreign assets to the Official Trustee. The effectiveness of such an assignment is obviously a matter for the lex situs of the asset concerned. 36.59 Foreign creditors may prove in a local bankruptcy, and have the same rights regarding the commencement of, and participation in, proceedings under the Bankruptcy Act as Australian creditors.143 Article 14 of the Model Law provides that wherever, under the Bankruptcy Act, notification is to be given to Australian creditors, individual notification is also to be given to known foreign creditors (unless the court otherwise orders). The court may also order that appropriate steps be taken with a view to notifying creditors whose address is unknown. Section 12(2) of the Cross-Border Insolvency Act provides that the claims of foreign creditors, other than those concerning tax and social security obligations, are not to be ranked lower than claims of other unsecured creditors by reason of the creditor’s status as a foreign creditor. An unsecured creditor, however, who has received part payment in respect of its claim in a proceeding pursuant to a law relating to insolvency in a foreign state, may not receive a payment for the same claim in Australian insolvency proceeding regarding the same debtor for so long as the payment to the other creditors of the same class is proportionately less than the payment the creditor has already received.144 This accords with the common law position that a creditor who has seized or recovered property of the bankrupt in proceedings abroad will only be allowed to

prove outstanding debts in the forum on condition that the gains made abroad are brought into hotchpot.145 A similar principle applies in the case of corporate insolvency.146 36.60 In general, a foreign creditor who does not lodge a proof in bankruptcy proceedings in the forum cannot be compelled to bring into hotchpot any gains obtained by that creditor in proceedings against the bankrupt outside the forum. But there exists a series of rather ancient English decisions in which it was held that a creditor who is subject to English bankruptcy law will not be permitted to take [page 831] proceedings abroad with knowledge of the bankruptcy in order to obtain a preference over other creditors. Either such creditor will be restrained by injunction,147 or, if the creditor has already obtained payment or property abroad, they will be compelled to account for this to the trustee in England.148 36.61 When is a creditor subject to the bankruptcy law of the forum? In two of the cases, Sill v Worswick149 and Hunter v Potts,150 the creditor in question was resident in England. In the third case, Phillips v Hunter,151 one of the creditors was a partner in an English firm and probably himself domiciled in England but resident in America where he managed the firm’s business. One view might be that a creditor should be regarded as being subject to English bankruptcy law if, had the creditor been a debtor, that person would have been subject to English bankruptcy jurisdiction. In other words, the definition laid down in s 265 of the English Insolvency Act 1986 (cf s 43(1)(b) of the Australian Act) applies mutatis mutandis as the relevant test. Dicey, Morris & Collins suggest that the test is that the jurisdiction to compel creditors to refund the value of property obtained abroad is related to that for restraining creditors from recovering debts abroad, and that a creditor who obtains property of the bankrupt situated abroad can be compelled to refund it to the trustee if, at the time when they received payment, they were a resident in England.152 This, however, appears to be too narrow in view of the decision in Phillips v Hunter. The true basis for the rule surely is that in each case England was the natural forum for the particular creditor to seek relief and there was no legitimate reason for seeking relief elsewhere. This was so, not merely because the creditor in each case was a resident of England or a member in an English partnership, but also because that was the country where

the debtor in each case was resident and where the debt had been contracted. A creditor who knowingly receives funds from an English source is sufficiently connected with that country to make an order against it just and proper.153 On the other hand, the mere residence of the creditor in England, even at the time of payment, would by itself not be enough.154 The same principles should mutatis mutandis be applied by Australian courts.

Administration in bankruptcy 36.62 The administration of the property of a bankrupt against whom a sequestration order or adjudication has been made is governed by the law of the forum. It has been said that this is simply an application of the general rule that matters of procedure are governed by the lex fori,155 yet the principle can extend far beyond true questions of procedure. [page 832] 36.63 In Ex parte Melbourn156 the bankrupt and his wife had their matrimonial domicile in the Netherlands East Indies at the time of their marriage. Prior to the marriage they entered into an agreement that purported to exclude the system of community property normally applicable to Europeans resident in that colony. The agreement also settled on the wife the sum of 75,000 guilders for her separate use. However, the deed was not registered and under the law of the Netherlands East Indies this had the effect of making the agreement only effective as between the parties. As regards third parties the spouses were deemed to be subject to the community property laws. The husband having acquired a domicile in England, became bankrupt there. The wife lodged a proof for the sterling equivalent of 75,000 guilders. The Court of Appeal upheld her claim. It was acknowledged that the question of whether the contract between her and her husband was valid should depend on the law of the Netherlands East Indies. But once that law determined there was a contract, the question of what priority the wife’s contractual right against the husband should be given as regards his other creditors was a matter of English law, as the lex fori. Thus, the wife could enforce a right against the husband’s trustee in England, which, as the court admitted, she would never have been able to enforce in the Netherlands East Indies. In a local bankruptcy it is the lex fori that determines the ranking of creditors, both local and foreign, provid In the case of a tortious liability there

does not appear ed their claims are valid by the law according to which their claims were created. 36.64 In John Pfeiffer Pty Ltd v Rogerson,157 the High Court adopted an ‘outcome determination test’ for distinguishing between matters of substance and matters of procedure.158 Although Pfeiffer was not concerned with administration of bankruptcy, the court’s adoption of the outcome determination test may warrant reconsideration of the rule that administration of the property of a bankrupt is governed by the law of the forum.159 The adoption of the Model Law should operate to minimise the forum shopping potential invariably available whenever the law of the forum applies to an issue which is not procedural in the narrow (mechanical) sense.

Discharge 36.65 Under s 153(1) of the Bankruptcy Act, an order for discharge under the Act operates to release the bankrupt from all debts provable in the bankruptcy. Since any creditor, foreign or domestic, can prove any debt, whether governed by Australian or foreign law, in an Australian bankruptcy, the effect of this provision is to discharge, so far as Australian proceedings are concerned, all debts of the bankrupt, irrespective of their governing law.160 [page 833]

Winding Up of Companies in Australia 36.66 The external administration of corporations including the appointment of receivers and managers and winding up is governed by Chapter 5 of the Corporations Act.161That chapter applies to corporations incorporated or registered under the Act and to Pt 5.7 bodies, which are defined to include not only registered foreign companies but also an unregistered foreign company which ‘carries on business in Australia’.162 Normally, the place of incorporation will be the most appropriate forum for winding up the corporation. But that forum may decline to exercise jurisdiction, for example, where the principal administration and business of the company is in a foreign country that will not give effect to an order for the winding up of the corporation made in the forum.163

36.67 A foreign company may thus be wound up under Pt 5.7 of the Corporations Act, and this may be done notwithstanding that it has been wound up, dissolved or has otherwise ceased to exist as a body corporate under the law of its incorporation.164 This provision was enacted for the removal of doubts concerning companies dissolved under the law of their incorporation. It does not add to or detract from the power of the court to make a winding up order under Pt 5.7 of the Act.165 If the foreign company has been dissolved in the place of incorporation, the making of the winding up order will revive it for the purposes of the winding up. This means that debts owed by the company are revived together with its legal personality. But the debt itself must still be in existence. If a company is dissolved by a decree of the place of incorporation, and its local assets and liabilities confiscated, only such debts as are not affected by that decree, such as debts situated in the forum, remain in existence.166 36.68 There is some doubt about debts that have been contracted in the interval between dissolution abroad and the making of the winding up order in the forum. In Re Banque des Marchands de Moscou, Wilenkin v The Liquidator,167 Vaisey J held that such a debt was not valid since the company was dissolved at the time and had not yet been revived. In Re Russian Commercial & International Bank168 Wynn-Parry J came to the opposite conclusion on the ground that, in the words of Lord Atkin in Russian and English Bank v Baring Bros & Co,169 the company was to be treated for the purposes of the distribution of its assets among the creditors ‘as though it had [page 834] not been dissolved and therefore continued in existence’. It is submitted that the latter view is indeed more in consonance with the underlying theory.170 36.69 Where a registered foreign company commences to be wound up, or is dissolved or deregistered, in its place of origin, each person who, on the day when the winding up proceedings began, was a local agent of the foreign company must, within the period of one month after that day or within that period as extended by the Australian Securities & Investments Commission (ASIC) in special circumstances, lodge or cause to be lodged notice of that fact and, when a liquidator is appointed, notice of the appointment.171 Further, the court is required, on the application by the person who is the liquidator for the foreign company’s place of origin, or by ASIC, to appoint a liquidator of the

foreign company.172 Under s 601CL(15), a liquidator of a registered foreign company who is appointed by the court must, before any distribution of the foreign company’s property is made, by advertisement in a daily newspaper circulating generally in each state or territory where the foreign company carried on business at any time during the six years before the liquidation, invite all creditors to make their claims against the foreign company within a reasonable time before the distribution; and must not, without obtaining an order of the court, pay out a creditor of the foreign company to the exclusion of another creditor of the foreign company. Under s 601CL(15)(c), the liquidator must, unless the court otherwise orders, recover and realise the property of the foreign company in this jurisdiction and must pay the net amount so recovered and realised to the liquidator of the foreign company for its place of origin. The provisions of the Model Law enhance and further the purpose clearly evident in such provisions. 36.70 It is not essential that there be an ancillary winding up. Subject to s 601CL(14)(b), an Australian court may decline in its discretion to make a local winding up order where it feels that the principal liquidator can adequately handle the situation,173 a result that will be facilitated by the standing provisions afforded to a foreign liquidator under the Model Law. On the other hand, a local winding up may be ordered even though no liquidation proceedings have been initiated in the place of incorporation.174 The court can order a local winding up if there is a sufficient connection with the forum175 and a reasonable possibility that benefit will accrue to the company’s creditors from the winding up.176 As regards the requirement of a local connection, this is satisfied if the company has conducted transactions in the forum, especially if they include the transaction out of which the claim arose. But it is not necessary that the company carried on business within the forum or that the winding up of the company in the forum will not affect the continued existence of the company elsewhere.177 [page 835] 36.71 As regards the requirement that there be benefit to the creditors, obviously local winding up proceedings would normally have little meaning if there were no assets or creditors within the jurisdiction.178 The assets of the company can be of any nature. Thus, they may consist of money paid into court out of the proceeds of a sheriff’s sale of assets of the company.179 In Re Compania Merabello San Nicholas SA,180 the sole English asset of the foreign

company was a claim for indemnity against its English insurers. The only benefit that the petitioning creditor hoped to gain was the direct vesting of that claim in it under the English Third Parties (Rights against Insurers) Act 1930. Megarry J held that he had jurisdiction to make a winding up order. He did not consider it necessary that the assets be of a ‘commercial’ nature or that they should be available for distribution to all creditors on the winding up. It sufficed that there was ‘a reasonable possibility of benefit accruing to’ the petitioning creditor.181 36.72 There need not be any assets at all. In Re Eloc Electro-Optiek BV,182 Nourse J made an order for the local winding up of a Dutch company which had no assets of any nature in the United Kingdom on the ground that the order for the winding up of the company would allow the petitioners who were former employees of the company to make a claim against a redundancy fund created by the United Kingdom Government to compensate the employees of insolvent employers. Thus, the possibility of a benefit accruing to the petitioning creditor need not be a benefit flowing from the company itself. It is sufficient that the very fact of winding up itself will give the creditor some advantage.183 36.73 The grounds for winding up a foreign company are set out in s 583 of the Corporations Act. They are that the company is unable to pay its debts, has been dissolved or deregistered, has ceased to carry on business in Australia or has a place of business in Australia only for the purpose of winding up its affairs, or if the court is of the opinion that it is just and equitable that the company be wound up, or ASIC in a report has stated its opinion that the company cannot pay its debts, or that the company should be wound up in the public interest. A voluntary winding up is not permitted. Inability to pay debts is defined in s 585 of the Corporations Act. 36.74 In so far as there is a discretion to wind up a foreign company on the application of a creditor, the pendency of foreign insolvency proceedings may bear on the exercise of that discretion. In ML Ubase Holdings Co Ltd v Trigem Computer Inc,184 a judgment creditor sought a garnishee order against assets of the judgment debtor in Australia, being a debt owed to the judgment debtor by its Australian subsidiary. At the time of the garnishee proceedings the judgment debtor was in the course of corporate reorganisation proceedings in Korea, in which the judgment creditor had sought to prove its claim. Although the Korean proceedings were not held to be an ‘external administration matter’ within the meaning of s 581(2) of the [page 836]

Corporations Act, Brereton J nonetheless declined to exercise his discretion to make the garnishee order absolute, holding that the court would not do so where the effect would be to confer a preference on a creditor, even if no order had been made in the foreign administration proceedings as at the date of attachment.185 His Honour held that the judgment creditor ‘ought not both have the benefit of the reconstruction by proving in it and at the same time be permitted to enforce its rights outside it. In this context, considerations analogous to those which apply on an application for a stay on grounds of forum non conveniens are pertinent’. His Honour developed this notion on the basis that: It is far more just and convenient that the claims of all creditors be resolved according to the law of the place of incorporation, where there can if necessary be a general pro-rata distribution, than in New South Wales, which can deal only with the claim of one creditor against one asset, and that to the prejudice of the other creditors. Although it was submitted for Ubase that it could not be said that the creditors of Trigem Inc participating in the reorganisation would be prejudiced if the order for payment were made, the contrary is plain: if the order were made, a very large asset, which would otherwise be available for the general body of creditors, would be removed to satisfy Ubase’s claim alone. Moreover, the garnishee is not an arm’s length debtor to the judgment debtor, but its wholly owned subsidiary, and regardless of whether or not it is a debtor of Trigem Inc, its assets and liabilities may be of relevance to the reorganisation, since they will influence the value of Trigem Inc’s assets, which include its shareholding as the holding company of Trigem Australia. The dispute has only a tangential connection with New South Wales, which is no more than the situs of an asset of the judgment debtor. In my view, the Korean jurisdiction has a much closer connection with and relationship to the issues, and is a manifestly more convenient and appropriate one for their resolution than New South Wales.

36.75 In a local winding up, local creditors are not entitled to a priority over foreign creditors. All creditors of the company rank equally wherever they are or wherever their debts were contracted. This is now made explicit by s 12(2) of the Cross-Border Insolvency Act in the case of all claims other than in respect of claims concerning tax and social security obligations. In Re Standard Insurance Co Ltd,186 a company incorporated in New Zealand had been placed in liquidation in that country. An ancillary order was also made in Queensland. In line with normal practice any surplus realised in ancillary winding up proceedings is transmitted to the principal liquidator. But it was held that there was no need to satisfy local creditors in Queensland in full before the surplus could be transmitted to New Zealand. 36.76 Normally, if there is a liquidation in process in the place of incorporation any surplus must be paid to the liquidator of that place.187 If there is no liquidator in the place of incorporation, the local liquidator may apply to the court for directions.188 Any outstanding assets not disposed of by distribution to creditors or to a foreign liquidator shall, if the company is incorporated in

Australia or an external territory, [page 837] ‘vest in the person entitled to the property under the law of the body’s place of origin’, or otherwise ASIC.189 36.77 In the course of the winding up it may be necessary to make ancillary orders against persons resident abroad, such as a summons to attend for examination regarding the disposition and whereabouts of assets of the entity. It was originally held by Lockhart J in Re Sherlock190 that an Australian court lacked jurisdiction to order foreign residents to attend for examination in winding up proceedings. This was not an approach taken in England in relation to equivalent provisions of the Insolvency Act 1986 (United Kingdom).191Re Sherlock was distinguished by Foster J in Fiorentino v Irons.192 In Re Sherlock, application to serve the summons outside the jurisdiction had been made on the basis that the summons was not an originating process, so that service outside Australia could only be made under what is now O 8 r 4 of the Federal Court Rules, if at all. In Fiorentino, application to serve the summons was made on the basis that it was an originating process, so that service outside Australia could be made under O 8 rr 1 and 2, which are broader in effect than r 4.193 Foster J gave leave to serve the summons outside Australia. This decision was followed at first instance in Re New Tel Ltd (in liq); Freehills v Waller.194 However, on appeal, the Full Court of the Federal Court agreed with the analysis of Lockhart J in Re Sherlock and held that an examination summons was not an originating process and hence could not be served out of the jurisdiction pursuant to what were then O 8 rr 2 and 3 of the Federal Court Rules.195 The Full Court held, however, that the service of an examination summons out of the jurisdiction was authorised by s 596B of the Corporations Act itself, in conjunction with s 5(7) of that Act which extended its reach to natural persons resident outside of the jurisdiction and r 11.4 of the Corporations Rules. In so doing, the Full Court embraced the reasoning of the English Court of Appeal in Re Seagull Manufacturing Co Ltd.196 _________________________ 1.

Re HIH Insurance Limited [2008] 1 WLR 852; see also R Mason,‘Local Proceedings in a Multi-state Liquidation: Issues of Jurisdiction’ (2006) 30 Melb Univ Law Review 145; and see generally Fletcher, Insolvency in Private International Law, 2nd ed, Oxford University Press, 2005. Universalism was pioneered by the United States where Congress passed legislation in 1978 (11 USC s 304) to give effect

to a modified form of the universality approach, with the purpose of preventing piecemeal distribution of a debtor’s estate: Re Koreag, Controle et Revision SA, 961 F 2d 341 at 358 (2nd Cir, 1992). Although the statute directs courts to defer to the foreign court and to grant relief in support of foreign proceedings, it reserves to United States courts a discretion to evaluate the fairness of the foreign procedures and to protect the interests of local creditors in the United States. 2.

Mason, see note 1 above.

3.

For an account of the historical development of English common law in this context, see Cambridge Gas Transportation v Official Committee of Unsecured Creditors of Navigator Holdings plc [2007] 1 AC 508 at [16]–[21] but note the majority view of the United Kingdom Supreme Court in Rubin v Eurofinance SA [2013] 1 AC 236 that this case was wrongly decided. Lord Collins, in the latter case, also provides a detailed overview of historical development in this sphere.

4.

The text of the Model Law forms Sch 1 to the Cross-Border Insolvency Act. Legislation based on the Model Law had, as at August 2013, been adopted in Australia (2008); British Virgin Islands (2003); Canada (2005); Eritrea (1998); Great Britain (2006); Greece (2010) Japan (2000); Mauritius (2009); Mexico (2000); Montenegro (2002); New Zealand (2006); Poland (2003); Republic of Korea (2006); Romania (2003); Serbia (2004); Slovenia (2007) South Africa (2000); Uganda (2011); and the United States of America (2005).

5.

Not all foreign bankruptcy laws have extraterritorial effect: see Blom-Cooper, Bankruptcy in Private International Law, Ch 5, Eastern Press, London, 1954; Fletcher, 2005.

6.

Re Blithmann (1866) LR 2 Eq 23 at 26.

7.

[1911] 1 KB 896.

8.

Australian Mutual Provident Society v Gregory (1908) 5 CLR 615; Ex parte Bettle (1895) 14 NZLR 129.

9.

Re Kooperman [1928] WN 101.

10. Radich v Bank of New Zealand (1993) 45 FCR 101; 116 ALR 676 at 693–4 per Drummond J. 11. (1908) 7 CLR 207. 12. [1911] 1 KB 896. 13. See also Re Davidson’s Settlement Trusts (1873) LR 15 Eq 383; Re Lawson’s Trusts [1896] 1 Ch 175; Re Craig (1916) 86 LJ Ch 62; Bergerem v Marsh (1921) 125 LT 630. 14. (1993) 45 FCR 101 at 110–11 per Drummond J. 15. But see as to the obligation upon first instance and intermediate Australian courts to follow authoritative statements (however old) of the High Court, Farah Constructions Pty Ltd v Say-Dee Ltd (2007) 230 CLR 89. 16. (1908) 5 CLR 615. 17. See note 16 above, at 627. 18. Union Bank v Tuttle (1889) 15 VLR 258. 19. See note 18 above. 20. Proudfoot v Stubbins (1886) 7 LR (NSW) 131; Bank of New Zealand v Proudfoot (1885) 6 LR (NSW) 177; Fleetwood v Benjamin (1870) 9 SCR (NSW) 162. 21. Federal Bank of Australia v White (1895) 21 VLR 451. 22. Glass v Keough (1867) 4 WW & A’B (L) 189 at 191, 192 per Stawell CJ; Gibbs and Sons v La Societe Industrielle et Commerciale des Metaux (1890) 25 QBD 399. 23. Glass v Keough, but see contra, Newman v Benjamin (1870) 9 SCR (NSW) 166.

24. Gibbs and Sons v La Societe Industrielle et Commerciale des Metaux (1890) 25 QBD 399 at 405. 25. Spalding v Bailey (1891) 17 VLR 478. 26. Preamble to the Model Law. 27. Arts 9–14. 28. Art 17. 29. Arts 19, 21. 30. Art 20. 31. Arts 25–30. 32. Art 17(i)(a) and Article 2(a). 33. Tucker v Aero Inventory (United Kingdom) Ltd No 2 (2009) 181 FCR 374 at [17]–[20]; Pink v MF Global Ltd (in special administration) [2012] FCA 260 at [14]. 34. Board of Directors of Rizzo-Bottiglieri-de Carlini Armatori Spa (as debtor in possession of RizzoBottiglieri-de Carlini Armatori Spa) v Rizzo-Bottiglieri-de Carlini Armatori Spa [2013] FCA 157. 35. Yu v STX Pan Ocean Co Ltd (South Korea) [2013] FCA 680. 36. Moore (as debtor in possession of Australian Equity Investors) v Australian Equity Investors [2012] FCA 1002. 37. Pink v MF Global Ltd (in special administration) [2012] FCA 260. 38. Katayama v Japan Airlines Corporation (2010) 79 ACSR 286. 39. In the matter of Stanford International Bank Ltd [2009] EWHC 1441. 40. (2011) 80 NSWLR 507. 41. This aspect of relief does not extend to the enforcement in the jurisdiction of a foreign judgment against a party which would not have been enforceable according to ordinary principles for the recognition and enforcement of foreign judgments: In the matter of the Consumers Trust; ex parte Rubin [2009] EWHC 2129. 42. Art 19. 43. Art 22. 44. The staying of proceedings does not affect the right to commence individual actions or proceedings to the extent necessary to preserve a claim against the debtor: Art 20(3). This would also appear to be subject to Art 28 which provides that ‘[a]fter recognition of a foreign main proceeding, a [bankruptcy or winding up] proceeding may be commenced only if the debtor has assets in [the] State’ and that ‘the effects of that proceeding shall be restricted to the assets of the debtor that are located in this State and, to the extent necessary to implement co-operation and co-ordination under articles 25, 26 and 27, to other assets of the debtor that, under the law of this State, should be administered in that proceeding’. 45. ‘Locating the Eye of the Financial Storm’ (2007) 32 Brooklyn Journal of International Law 1019 at 1020. 46. This statement is consistent with the approach which Australian courts are required to take to the interpretation of municipal acts implementing the international conventions: see, for example, Shipping Corporation of India Ltd v Gamlen Chemical Co A/Asia Pty Ltd (1980) 147 CLR 142 at 159; Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad (1998) 196 CLR 161 at 186, at [70], 213 at [137]; Siemens Ltd v Schenker International (Australia) Pty Ltd (2004) 216 CLR 418 at 466–7, at [153]–[154]; Povey v Qantas Airways Ltd (2005) 223 CLR 189 at [25]. 47. [2012] FCA 1002.

48. See also Re Gainsford v Tannenbaum (2012) 293 ALR 699 at [36]. 49. In the case of a bankrupt, the place of the bankrupt’s habitual residence is presumed to be the centre of their main interest. The concept of ‘habitual residence’ in this context was considered in Williams v Simpson [2011] 2 NZLR 380 and Re Gainsford v Tannenbaum (2012) 293 ALR 699 at [39]–[46] where Logan J drew distinctions between the process for identifying the centre of main interest in a bankruptcy as opposed to a corporate insolvency. 50. El-Ajou v Dollar Land (Manhattan) Ltd [2005] EWHC 2551. 51. Akers v Saad Investments Co Ltd (2010) 190 FCR 285 at [51]. 52. See note 51 above, at [55]. 53. [2005] 1 WLR 3966 at [55]. 54. See, for example, Moore (as debtor-in-possession of Australian Equity Investors) v Australian Equity Investors [2012] FCA 1002. 55. [2009] EWHC 1441. 56. See, for example,Re Bear Stearns High-Grade Structure Credit Strategies Master Fund Ltd (United States Bankruptcy Court, SDNY, 5 September 2007), discussed in Clark,‘Center of Main Interests Finally Becomes the Centre of Main Interests in the Case Law’ (2008) 43 Texas International Law Journal Forum 14. See also LC Ho, Cross-Border Insolvency: A commentary on the UNCITRAL Model Law, 3rd edn, 2012. referred to in Re Gainford v Tannenbaum (2012) 293 ALR 699 at [37]. 57. (2010) 190 FCR 285 at [49]. 58. Re Stanford International Bank Ltd [2011] Ch 33. 59. [2006] Ch 508. 60. See 36.14 above. 61. (1890) 24 QBD 640. 62. See note 61 above, at 648–9. 63. Ewing v Orr-Ewing (1883) 9 AC 34. 64. (1890) 24 QBD 640 at 648. 65. See note 64 above, at 645. 66. See note 64 above, at 648. 67. Bankruptcy Act 1966 (Cth) s 33(1). 68. See note 67 above, at s 37(1), but see the limitations imposed by subss (2) and (3). 69. Ex parte Gibson (1865) 34 LJ KB 31. 70. Ex parte Robinson (1883) 2 Ch D 816. But see Re Thulin [1995] 1 WLR 165 at 169–71 per Jules Sher QC who described Ex parte Robinson as ‘no more than a general guide’. Of course, if a foreign main proceeding has been recognised by an Australian court, and there are no assets in Australia, a concurrent proceeding may not be commenced: Art 28 of the Model Law. 71. Radich v Bank of New Zealand (1993) 45 FCR 101; 116 ALR 676 at 700 per Drummond J. 72. (1890) 24 QBD 640 at 647. 73. (1998) 86 FCR 460. 74. Citing Re Artola Hermanos (1890) 24 QBD 640 at 649. 75. Citing Galbraith v Grimshaw [1910] AC 508 at 513 per Lord Dunedin. For a similar approach in relation to foreign corporate reconstruction proceedings pursuant to the Korean insolvency regime, see

ML Ubase Holdings Co Ltd v Trigem Computer Inc (2007) 69 NSWLR 577 at 595–602. 76. [1999] 1 VR 235. 77. Re Blithmann (1866) LR 2 Eq 23; Harris v Russell (1868) 2 QSCR 17; Buisson v Warburton (1873) 4 AJR 43; Re Hayward [1897] 1 Ch 905. 78. (1890) 24 QBD 640 at 648. 79. See also Chapman v Travelstead (1998) 86 FCR 460. 80. As appears to have been the case with the French syndic in Re Artola Hermanos (1890) 24 QBD 640. See Blom-Cooper, 1954, p 34. 81. [1911] 1 KB 896 at 902. 82. (1993) 45 FCR 101; 116 ALR 676. 83. For a recent description of the two competing theories in the United States, see In re Treco, 240 F 3d 148 at 153 (2nd Cir, 2001). 84. See note 83 above. 85. Model Law, Art 2(b): a proceeding in the country ‘where the debtor has the centre of its main interests’. 86. On the meaning of co-operation with a foreign court, see Re Chow Cho Poon (Private) Ltd (2011) 80 NSWLR 507. 87. (2011) 285 ALR 476. 88. [2013] 1 AC 236. 89. Section 122 of the Bankruptcy Act 1914 (United Kingdom) which once applied to Australia as a matter of Imperial paramountcy directed every ‘British’ court having jurisdiction in bankruptcy or insolvency to act in aid of each other. The amendment to s 29 of the Australian Act in 1980 has implicitly repealed that provision in its application to the Commonwealth of Australia. 90. Bankruptcy Regulations 1996 (Cth) reg 3.01, pursuant to Bankruptcy Act 1966 (Cth) s 29(5)(b). 91. Re Ayres; Ex parte Evans (1981) 51 FLR 395 at 405–7, esp. at 407 per Lockhart J; Ayres v Evans (1981) 56 FLR 235 (FC) at 240, 247, 254–5; Radich v Bank of New Zealand (1993) 45 FCR 101 at 105, 118; Dick v McIntosh [2001] FCA 1008 at [8]; Levy v Reddy [2009] FCA 63 at [12]. 92. Bankruptcy Act 1966 (Cth) s 29(3). 93. (1981) 39 ALR 129. 94. Radich v Bank of New Zealand (1993) 45 FCR 101; Re A Debtor; Ex parte Viscount of the Royal Court of Jersey [1981] Ch 384. 95. Re Ayres, Ex parte Evans (1981) 51 FLR at 408–9; Ayres v Evans (1981) 56 FLR at 240, 247, 255; Dick v McIntosh [2001] FCA 1008; Levy v Reddy [2009] FCA 63 at [12]. 96. [2001] FCA 1008. 97. Radich v Bank of New Zealand (1993) 45 FCR 101; 116 ALR 676 at 699 per Drummond J. 98. (2005) 193 FLR 43. 99. Rolfe v Transworld Marine Agency Co NV (1998) 83 FCR 323. The equivalent provision in the Corporations Law, s 581(3), provides that the court ‘shall’ give assistance. Even so, the court in Taylor v Dow Corning Australia Pty Ltd [1999] 1 VR 235 held that the court has some discretion not to assist if there are powerful reasons for not doing so. See, to the same effect in the United Kingdom, Re Dallhold Estates (United Kingdom) Pty Ltd [1992] BCC 394. 100. Ayres v Evans (1981) 39 ALR 129 at 144 per McGregor J.

101. See, for example, Official Trustee in Bankruptcy v Lyons (2000) 104 FCR 486; 179 ALR 50; Dick v McIntosh [2001] FCA 1008; Pascoe, Re; Hudson [2005] FCA 1421; Warner, in the matter of Rivkin [2007] FCA 2020; see also, by analogy, AFG Insurances Ltd [2002] NSWSC 735. 102. Warner, in the matter of Rivkin [2007] FCA 2020. 103. Clunies-Ross v Totterdell (1988) 20 FCR 358 at 361 per Beaumont, Burchett and Lee JJ; see also Warner, in the matter of Rivkin [2007] FCA 2020. 104. Official Trustee in Bankruptcy v Lyons (2000) 104 FCR 486. 105. Corporations Act 2001 (Cth) s 581(2)(a)(ii), (iii), (b). 106. See note 105 above, at s 581(3). 107. See note 105 above, at s 581(4). See Joye v Beach Petroleum NL (1996) 67 FCR 275; 137 ALR 506. 108. [2008] 1 WLR 852. 109. Insolvency Act 1986 (United Kingdom). 110. [2008] 1 WLR 852 at [28]. 111. Bankruptcy Act 1966 (Cth) s 27. 112. Under the Bankruptcy Act 1966 (Cth) s 28(1), which was repealed in 1996. 113. See Ch 6 above. Although the Bankruptcy Act 1966 (Cth) s 27 provides that the jurisdiction of the Federal Court of Australia and the Federal Magistrates Court is ‘exclusive of the jurisdiction of all courts other than the jurisdiction of the High Court under section 75 of the Constitution’, bankruptcy is not a ‘special federal matter’ for the purposes of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) s 4. 114. Bankruptcy Act 1966 (Cth) s 35A(1), (2A). In addition proceedings may be transferred from the Federal Court to the Family Court pursuant to s 5(5) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth). 115. Bankruptcy Act 1966 (Cth) s 40(1)(a). 116. See note 115 above, at s 40(1)(b). 117. See note 115 above, at s 40(1)(c). 118. See note 115 above, at s 40(1)(g). 119. Now replaced by the Insolvency Act 1986 (United Kingdom). 120. [1950] AC 186. 121. Thereby overruling the effect of Ex parte Crispin (1873) LR 8 Ch 374; Ex parte Blain (1879) 12 Ch D 522; Re Pearson [1892] 2 QB 263; and Cooke v The Charles A Vogeler Co [1901] AC 102, all of which held that the debtor should be a person either of British nationality or of English domicile or residence. 122. Re Mendonca [1970] ALR 337. 123. Re Coote, Petitioning Creditor; Re Reference by Registrar in Bankruptcy (1993) 47 FCR 522 at 524; 120 ALR 134 at 136 per Northrop J 124. Re Trimbole; Ex parte DCT (1984) 4 FCR 586; 59 ALR 625; Battenberg v Restrom [2006] FCAFC 20 at [17]–[19]. 125. Re Mendonca [1970] ALR 337; Re Skase (1991) 104 ALR 229; 32 FCR 212; Battenberg v Restrom [2006] FCAFC 20 at [19]. 126. Ex parte Crispin (1873) LR 8 Ch 374 at 380 per Mellish LJ, affirmed by the House of Lords in Cooke v The Charles A Vogeler Co [1901] AC 102 at 109, 112, and applied by the Court of Appeal in Re

Debtors (No 836 of 1935) [1936] Ch 622. See also Re Doyle (dec’d); Ex parte Brien v Doyle (1993) 112 ALR 653. 127. [1950] AC 186 at 196. 128. Ex parte Crispin (1873) LR 8 Ch 374 at 380 per Mellish LJ. See also Re Doyle (dec’d); Ex parte Brien v Doyle (1993) 112 ALR 653. 129. Some support for this position is supplied by the judgment of Gibbs J in Avondale Motors (Parts) Pty Ltd v FCT (1971) 124 CLR 97 at 102–3. 130. For criticism of this decision, see Blom-Cooper, 1954, pp 72–5. But the principle was reaffirmed in relation to the Insolvency Act 1986 (United Kingdom) by Hoffmann J in Re A Debtor (No 784 of 1991) [1992] Ch 554. 131. Barton v DCT (1974) 131 CLR 370. 132. Per Lord Porter in Theophile v The Solicitor General [1950] AC 186 at 200. The earlier case of Re Pearson [1892] 2 QB 263 is no longer good law. See also s 7(1) of the Bankruptcy Act 1966 (Cth). 133. Re Buchanan; Ex parte Mervac Finance Ltd (1991) 31 FCR 135; Re Barnes; Ex parte Barnes v Makhoul (1994) 53 FCR 169. 134. Bankruptcy Regulations 1996 (Cth) reg 4.04. See Re Bond; Ex parte Hong Kong Bank of Australia Ltd (1991) 105 ALR 581; Re Bond; Ex parte Hong Kong Bank of Australia Ltd (1992) 34 FCR 453. 135. Bankruptcy Act 1966 (Cth) s 55. 136. See note 135 above, at s 56A(1)(b). 137. (1993) 47 FCR 522 at 528–30; 120 ALR 134 at 140–1. 138. See also Re Keshaw [1994] ACL Rep 50 FC 6. 139. Bankruptcy Act 1966 (Cth) s 58(1). 140. (1993) 41 FCR 40; 112 ALR 653. 141. (1993) 112 ALR 653 at 658–61. See also Official Trustee in Bankruptcy v Lyons (2000) 179 ALR 50 at 53 per Tamberlin J; Cheshire and North, Private International Law, 12th ed, Butterworth & Co, London, 1992, p 914 (not in the 13th ed). 142. [2008] 1 WLR 852, discussed at 36.45 above. 143. Art 13 of the Model Law. 144. See note 143 above, at Art 32. 145. Banco de Portugal v Waddell (1880) LR 5 AC 161. 146. Re Standard Insurance Company Limited [1968] Qd R 118; Cleaver v Delta American Reinsurance Co (in liq) [2001] 2 AC 328; New Cap Reinsurance Corp Ltd v Faraday Underwriting Ltd (2003) 47 ACSR 306; Re HIH Casualty and General Insurance Ltd (2005) 215 ALR 562. 147. Re Distin; Ex parte Ormiston (1871) 24 LT 197. This is an early example of an anti-suit injunction. 148. Sill v Worswick (1791) 1 Hy Bl 665; Hunter v Potts (1791) 4 TR 182; Phillips v Hunter (1795) 2 Hy Bl 402. 149. (1791) 1 Hy Bl 665. 150. (1791) 4 TR 182. 151. (1795) 2 Hy Bl 402. 152. See Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Thomson Sweet & Maxwell, London, 2012 at 31-042.

153. See Re Paramount Airways Ltd (in admin) [1993] Ch 223. 154. See Lord Cairns in Banco de Portugal v Waddell (1880) LR 5 AC 161 at 167, citing Lord Eldon in Selkrig v Davies (1814) 2 Dow 230 at 249. 155. See Dicey, Morris & Collins, 2012 at 31-046. 156. (1870) LR 6 Ch App 64. 157. (2000) 203 CLR 503. 158. See Chapter 16 above. 159. See Mason, ‘Choice of Law in Cross-Border Insolvencies: Matters of Substance and Procedure’ (2001) 9(2) Insolv LJ 69. 160. See Dicey, Morris & Collins, 2012 at 31R-053. 161. There is some support for the continued existence of an inherent jurisdiction to wind up companies which may extend to unregistered foreign companies: Re Kalblue Pty Ltd (1994) 12 ACLC 1057; Re New Cap Reinsurance Corporation Holdings Ltd (1999) 32 ACSR 234 at 236; cf. Davidson v Global Investments International Ltd (1995) 125 FLR 409. 162. Corporations Act 2001 (Cth) s 9. See, for example, Australian Securities and Investment Commission v Activesuper Pty Ltd (2012) 92 ACSR 614. 163. Re Harrods (Buenos Aires) Ltd [1992] Ch 72. 164. Corporations Act 2001 (Cth) s 582(3). 165. Re Compania Merabello San Nicholas SA [1973] Ch 75 at 86 per Megarry J. 166. Re Banque des Marchands de Moscou [1954] 2 All ER 746. 167. [1952] 1 All ER 1269. 168. [1955] Ch 148. 169. [1936] AC 405 at 427. 170. Cheshire and North, 1992, p 902 (not in later editions). 171. Corporations Act 2001 (Cth) s 601CL(14)(a). 172. See note 171 above, at s 601CL(14)(b). 173. Re New England Brewery Co Ltd [1970] QWN 49. 174. Mercantile Credits Ltd v Foster Clark (Australia) Ltd (1964) 112 CLR 169. 175. See, for example, Davidson v Global Investments International Ltd (1995) 19 ACSR 89, where the Supreme Court of Western Australia held it had no jurisdiction to order winding up of an unregistered foreign company not doing business in Australia. 176. International Westminster Bank plc v Okeanos Maritime Corp [1987] 3 All ER 137 at 148 per Gibson J. 177. Mercantile Credits Ltd v Foster Clark (Australia) Ltd (1964) 112 CLR 169. 178. Re Compania Merabello San Nicholas SA [1973] Ch 75 at 86 per Megarry J. 179. Mercantile Credits Ltd v Foster Clark (Australia) Ltd (1964) 112 CLR 169. 180. [1973] Ch 75. 181. See note 180 above, at 92. 182. [1982] Ch 43.

183. International Westminster Bank plc v Okeanos Maritime Corp [1987] 3 All ER 137. 184. (2007) 69 NSWLR 577. 185. See note 184 above, at 594–9. 186. [1968] Qd R 118. 187. Re Standard Insurance Co Ltd [1968] Qd R 118; Corporations Act 2001 s 349(15). 188. Corporations Act 2001 (Cth) ss 479(3), 601CL(15). 189. See note 188 above, at s 588(2). 190. (1991) 102 ALR 156. 191. Re Seagull Manufacturing Co Ltd (in liq) [1993] Ch 345. See also Re Skase (1991) 32 FCR 212. 192. (1997) 79 FCR 327. An earlier hearing of the same application by Emmett J is reported as Re Absolutely Fabulous Exhibitions and Events (Management) Pty Ltd (in liq) (1997) 25 ACSR 577. 193. See Chapter 3 above. 194. (2008) 250 ALR 246. 195. Waller v Freehills (2009) 177 FCR 507. 196. [1993] Ch 345.

[page 839]

PART VIII

Devolution on Death Chapters 37

Administration of Deceased Estates

38

Succession

[page 841]

Chapter 37

Administration of Deceased Estates Jurisdiction to Grant Probate or Letters of Administration 37.1 Under the practice of the ecclesiastical courts, which, prior to 1857, exercised jurisdiction in probate in England, the court would only exercise jurisdiction to grant probate or letters of administration if the deceased had left personal property within the diocese. In most Australian jurisdictions, it is provided by statute that jurisdiction to grant probate or letters of administration exists where the deceased left real or personal property within the jurisdiction.1 It follows that no grant can be made unless the deceased left some property within the jurisdiction,2 although in Wimalaratna v Ellis3 administration de bonis non was granted in Western Australia to permit the estate to bring an action for conversion in respect of goods situated in New South Wales. 37.2 In the Australian Capital Territory, s 9(2) of the Administration and Probate Act 1929 permits the court to grant probate or letters of administration even though the deceased did not leave any property within the jurisdiction, if the court is satisfied that such a grant is necessary. Similar provision is made by s 14(2) of the Administration and Probate Act 1969 (NT) and by s 9(2) of the Succession Act 1981 (Qld). 37.3 There are some decisions that suggest that the court will not grant probate of a will which deals with property situated abroad even though the deceased left other property within the jurisdiction.4 However, the better view appears to be that [page 842]

ultimately adopted by the Victorian Full Court in Re Canton.5 According to that decision, the fact that no property within the jurisdiction is disposed of by the will is not a ground for refusing a grant of probate. The court will refuse to grant probate of a duly executed will of a person who left property within the jurisdiction only if there is found in the will itself a sufficiently manifested intention that ‘it should not have any testamentary operation’ within the jurisdiction ‘either as an appointment of an executor, or as a disposition of property, or otherwise howsoever’.6 Where there are two separate wills, one dealing with assets in the forum and the other with assets abroad, it is only necessary to prove the former.7 37.4 Though the court has jurisdiction to construe the will in exercising jurisdiction to grant probate, it will not, normally, construe a will dealing with movable property where the deceased died domiciled abroad unless the executors consent to have the issue argued in the forum.8

The standing of a foreign executor within the forum 37.5 The forum will not recognise that a deceased person continues to possess any legal personality, even though this might be the case under the law of the deceased’s last domicile.9 Nor will the forum recognise the right of any other person to represent the interests of the deceased unless such person has obtained a grant of representation within the forum, since the authority of the legal personal representative of a deceased person is confined to the jurisdiction of the court that granted or resealed probate or letters of administration. As the Privy Council said in Blackwood v R:10 ‘The grant of probate does not of its own force carry the power of dealing with goods beyond the jurisdiction of the Court which grants it, though that may be the Court of the testator’s domicile.’11 37.6 Thus, a foreign legal representative who has not obtained a grant of representation in the forum has no standing to sue or be sued in that representative capacity.12 Nor will the forum recognise the right of any other person who claims to represent the deceased’s interest as a ‘universal heir’ under civil law.13 Since such a person simply has no existence within the forum it is not a defect that can be cured by waiver or submission.14 This principle applies to executors and administrators appointed in other Australian jurisdictions as well as those appointed overseas. As an executor or administrator appointed by an Australian court only has authority

[page 843] within that jurisdiction, the question of full faith and credit under s 118 of the Constitution does not arise.15 37.7 In certain circumstances, a foreign executor who has not obtained probate locally may become liable to suit in the forum. This occurs where that person has through conduct become liable as an executor de son tort. Any person, whether an executor or not, who intermeddles with the assets of the deceased within the jurisdiction,16 or who transfers such assets to foreign executors who have not proved locally,17 or who, without actually dealing with the assets of the deceased, acts within the forum as the executor, for example, by appearing in an action against the estate and raising defences on the merits which only an executor could have raised,18 becomes liable as an executor de son tort. 37.8 Generally speaking, the liability of the executor de son tort is limited to those assets within the forum that have come into the hands of that person. In Cash v The Nominal Defendant,19 Brereton J left open the question whether the same principle applied where the executor de son tort was the lawful executor in a foreign jurisdiction and was in control there of the assets of the deceased. In the Ontario case of Charron v Montreal Trust Co,20 McRuer CJ refused to make an order against the foreign assets of the executor in such circumstances on the ground that this would be an unwarranted interference with the administration of the estate in the foreign jurisdiction, having regard to the principle that the administration of assets of a deceased estate is governed by the law of the forum. This appears to be the correct principle. 37.9 Under the law of some foreign countries, property rights and actions of the deceased are vested directly upon the death of the deceased in the heir or legatee. If this was the effect of the law of the domicile of the deceased in the case of movable assets or of the law of the situs in the case of immovable assets, the person in whom the right or action is vested by that law should be able to bring a suit to enforce that right or action in their own name without taking out a grant of representation.21

Who may apply for a grant of representation? 37.10 Generally speaking, the person who has been appointed executor or administrator in the court of the domicile of the deceased will be granted probate

or letters of administration in the forum without further examination of the will or the reasons for appointment, provided the assets within the forum consist only of movable property. The general principle was stated by Starke J in Lewis v Balshaw22 in the following terms: [page 844] Undoubtedly the rule or practice of English law in the case of movable property is that a court of probate should follow the grant made by the competent court of the domicile. The rule is a rule of convenience and expedience and not an absolute right … The rule is based upon the doctrine of English law that the beneficial succession to a deceased person’s movables is governed by the law of his domicile and that consequently the representative recognised by the court of the domicile should be placed elsewhere in a position to represent the deceased.

37.11 The grantee in the forum must be a person who under the law of the forum is capable of receiving a grant; that is to say, they must be of age and of sound mind.23 If no grant of representation has been made in the court of the domicile, the person who would under the law of the domicile have been entitled to such a grant, had application been made, will normally be granted representation in the forum.24 If the executor has died without completing the administration of the estate and a grant of administration with the will annexed of the unadministered estate of the deceased has been made by the court of the domicile to a particular person, the forum will generally grant administration to the same person.25 37.12 A difficulty may arise if the law of the domicile does not know of the institution of executors and administrators in the common law sense. In that case, as Jeune P held in The Goods of Meatyard,26 the forum must follow, as far as it can, the law of the deceased’s domicile and entrust the administration of the estate in the forum to the person whose function it is under the law of the domicile to administer the estate. Originally, it was considered that the powers of such a foreign administrator should be made to conform as closely as possible to those given by the law of the deceased’s domicile and if those powers were more restricted than were the powers of an executor under the law of the forum, the grant had to be restricted accordingly. Thus, in The Estate of Groos27 upon evidence that by the Dutch law of the domicile the possessory powers of an executor were limited to one year after the deceased’s death, Gorell Barnes J ordered that the grant to the Dutch executor should be made with the limitation that it should expire after one year from the death of the testatrix. However, in The Estate of Goenaga,28 the restrictions of the law of the domicile were ignored

and the foreign executor was appointed with the usual powers of an English executor. 37.13 As Starke J pointed out in the passage cited from Lewis v Balshaw, the rule that a grant will normally be made to persons entitled under the law of the domicile is a rule of convenience and expediency and not an absolute right. In certain circumstances the forum may appoint, for purposes of convenience, someone other than the grantee of the domicile as the administrator of the estate within the forum. Thus, in the New South Wales case of Bath v British and Malayan Trustees29 an application was made by the executors appointed by the court of the domicile of the [page 845] deceased for letters of administration with the will annexed in New South Wales. It was admitted that the applicants, if appointed administrators in the forum, were bound by an agreement with the government of the foreign domicile to use the proceeds of sale of the New South Wales assets of the deceased in order to pay the revenue claims made by the foreign government upon the estate of the deceased. 37.14 Helsham J, characterising the claim by the foreign executor as an indirect method of enforcing a foreign revenue claim, denied the application of the foreign executor and appointed instead one of the next of kin of the deceased to be the administrator of the estate in New South Wales. Conversely, the fact that the foreign executor had acted to avoid the payment of local taxes on the estate was held to be grounds for denying representation in IRC v Stype Investments Ltd.30 37.15 Where the estate of the deceased includes immovables situated within the jurisdiction, the forum must make its own determination as to the entitlement of the foreign applicant to a grant of representation. This was held to be so by the High Court on appeal from New South Wales in Lewis v Balshaw,31 where a woman died domiciled in England leaving both movable and immovable property in New South Wales. Probate of her will was granted to the executor named in her will in England. When application was made in New South Wales for a grant of administration with the will annexed by the attorney for the English executor, the application was contested by a caveator, who raised certain issues concerning the validity of the will which had not been raised in England.

The High Court held that the New South Wales Supreme Court should hear and determine those issues itself and could not accept the English grant at its face value, since the entitlement to a grant of representation in respect of immovable property is governed by the lex situs. 37.16 Provision has been made by statute for the resealing of grants of representation made in other Australian jurisdictions and in proclaimed overseas countries.32 The process of resealing is a simplified method of obtaining recognition in the forum of a foreign grant instead of the cumbersome method of obtaining a fresh grant of probate or letters of administration. If resealing is granted it operates within the forum from the date of the grant. But the same principles apply to the question of whether resealing should be granted as are applied to the granting of representation to a foreign executor or administrator.33 If reseal is sought of a grant of probate or letters of administration with the will annexed, the will must be admissible to [page 846] probate under the conflict rules of the forum.34 A grant of probate or letters of administration may be made in lieu of a reseal.35

The title of the grantee 37.17 Once a grant of representation is made in the forum all the movable and immovable assets of the deceased that are within the forum are vested in the grantee. It is not certain, however, whether assets situated outside the forum are also vested in the grantee. 37.18 In Whyte v Rose36 letters of administration had been granted under a prerogative administration from the Archbishop of Canterbury in respect of the goods of an intestate who had died domiciled in Nova Scotia. The administrator brought suit in England for arrears of an annuity due under the terms of an indenture. The defendant pleaded that at the time of death the indenture was in Ireland, where the plaintiff had not taken out letters of administration. In the nature of things it was to be expected that the indenture had been brought to England at the time of the suit. 37.19 The Court of Exchequer Chamber held that the plea was bad. The judgment by Tindal CJ starts off with the sweeping proposition that, in the case

of a British subject dying intestate in the colonies or in foreign countries, a prerogative administration extends to all the personal property of the intestate, wherever situated at the time of death, whether in the United Kingdom, or in the colonies or in any country abroad.37 This, however, is misleading, for as the judgment later points out,38 an English administrator could not act as such in an Irish court without an Irish grant. 37.20 There is general agreement today that the question whether a foreign asset vests in the grantee of the forum is not a question for the law of the forum at all, but is exclusively a matter for the lex situs of the assets to determine. As Harman LJ said in Re Fitzpatrick:39 ‘Foreign assets do not vest in executors virtute officii’. Grants of probate are local.40 Whyte v Rose is explained as being limited to the proposition that assets which are brought into the forum after the death of the deceased will vest in the grantee of the forum even though the grantee did not obtain a grant in the place where the assets were situated at the time of death.41 In Weinstock v Sarnat,42 proceeds of a Swiss bank account were repatriated to New South Wales, whereupon the Supreme Court of New South Wales recognised the executor’s title to them. 37.21 The grantee in the forum therefore has an inchoate title which can be perfected by obtaining possession of the foreign assets. This would normally not be expected, but if the local assets are insufficient to meet the debts of the deceased, [page 847] including death and succession duties, it may be the duty of the grantee in the forum to obtain possession of foreign assets and bring them to the forum.43 37.22 If the lex situs actually has vested the title to local assets in someone else, such as a local administrator appointed there, the forum will recognise that person’s title even as against the administrator in the forum. Thus, in Currie v Bircham44 the deceased had died intestate in India. His widow obtained letters of administration in that country. She remitted the proceeds of the sale of her husband’s Indian assets to her agent in England. The plaintiff was a creditor of the deceased who had obtained letters of administration of the deceased’s estate in England. Acting in that capacity he asserted his claim to the money held by the widow’s agent in England. It was held no such action could lie.

Administration Jurisdiction 37.23 In a suit for the administration of the estate of a deceased person the court may exercise jurisdiction in personam over the legal personal representative, if served within the jurisdiction, even though all the assets in the estate are situated abroad.45 If need be, the court may appoint a receiver of the assets situated outside the jurisdiction.46 However, if administration is granted abroad to a person other than the representative in the forum, the forum must respect the rights of the foreign administrator and limit the scope of its order to the assets within the forum.47 The court may also issue an (anti-suit) injunction restraining creditors amenable to the jurisdiction from taking or continuing proceedings against the estate in foreign countries.48 37.24 In the converse case, where the property is within the jurisdiction but the legal personal representative is outside the jurisdiction, the Supreme Court, in the exercise of its inherent jurisdiction, may take such steps as are necessary to protect the property from deprivation and loss. Thus, it may appoint a receiver of assets within the jurisdiction and restrain other persons from dealing with such assets,49 or may take the property directly under its control.50 Needless to say, such jurisdiction can only extend over the assets situated within the jurisdiction. 37.25 In all jurisdictions, except the High Court and the Federal Court, provision is made for the service of process out of Australia where: [page 848] The proceedings are for the administration of the estate of a person who dies domiciled in the State or are for relief which might be granted in proceedings for administration of such an estate.51

37.26 This provision permits the court to assume jurisdiction to make an order for the administration of the estate (as opposed to a grant of probate) on the sole ground that the deceased died domiciled within the jurisdiction, even though the deceased left neither property nor a personal representative within the jurisdiction. In Weinstock v Sarnat,52 White J held that proceedings for a declaration as to the ownership of certain funds, and in particular that they were not beneficially owned by the deceased (as was being asserted by the defendant

in proceedings in Israel), and for an anti-suit injunction restraining the defendant from continuing the Israeli proceedings were proceedings ‘for relief which might be granted in proceedings for administration of such an estate’ within the meaning of the Supreme Court Rules. This was because it would have been open to the beneficial owner of the funds to make a claim to the funds in proceedings for general administration of the estate. Within Australia originating process in administration matters may be served throughout Australia and its territories pursuant to s 15(1) of the Service and Execution of Process Act 1992 (Cth).53

Choice of law 37.27 As the High Court stated in Permanent Trustee Company (Canberra) Ltd v Finlayson,54 it is an ‘undoubted proposition that an administration of assets is to be carried out in accordance with the lex fori’ of the country in which representation has been granted. 37.28 The duties of administration include primarily the getting in of the assets of the deceased and the payment of the debts, including death and succession duties. As long as the administration of the estate is incomplete the duties, powers and functions of the legal personal representative are prescribed by the law of the forum. But once the administration is complete, the representative holds the assets of the estate as trustee for the persons who are entitled to them as beneficiaries or next of kin under the appropriate law. The proper law of a will trust is determined in Australia by the Trusts (Hague Convention) Act 1991 (Cth), adopting the Hague Convention on Trusts, and which applies both to trusts created inter vivos and on death.55 37.29 However, there is no clear distinction between administration and trusteeship. A person can exercise both functions at the same time. In Re Wilks56 the English administrators of the estate of a foreign domiciliary sought permission under English law for postponement of the sale of certain English assets of the deceased. The beneficiaries included infant [page 849] children of the deceased. The debts and administration expenses of the estate had apparently all been paid. Farwell LJ held that, as long as some of the beneficiaries, because of their age, were unable to give valid receipts to the

administrators for the proceeds of the estate, the administrators held the estate not only as trustees but also in a continuing administration. He characterised the power to postpone sale as a question of administration and therefore held that the administrators could avail themselves of the powers given them by English law. The same characterisation has been given to the question whether maintenance can be paid out of the estate in respect of the beneficiaries.57 37.30 So far as the payment of debts is concerned, the law of the forum alone determines what debts are payable out of the estate. In Re Lorillard58 the Court of Appeal held that the English executor of the estate of a person who had died domiciled in New York was not bound to pay out of the English assets certain debts of the deceased which were statute-barred under English law, though not under New York law. This principle was applied by the High Court in Permanent Trustee Co (Canberra) Ltd v Finlayson59 where the court held that the Australian Capital Territory executor of the estate of a deceased who had died domiciled in New South Wales ‘was neither liable nor entitled to pay out of Territory assets any claims which were not sustainable against it according to the law of the Territory’. Acting on that principle, the court rejected a claim made by the New South Wales Commissioner of Stamp Duties for death duties assessed against the New South Wales estate of the deceased which had by the law of that state been vested in a separate administrator.60 37.31 A question may arise as to what is meant by the law of the forum. Does it indicate only those claims which the law of the forum in its domestic sense would consider valid, or should it be taken to include the claims which the court of the forum would enforce having regard to the choice-of-law rules of the forum? The question may arise, for example, where, in a New South Wales administration, a claim is made in respect of a unilateral promise made by the deceased without consideration according to the law of a country that considers such promises binding. It seems likely that such a claim would be allowed, if it would have been, to paraphrase the High Court in Finlayson’s case, a claim which was sustainable under the law, including the conflicts rules, of New South Wales. On the other hand, the claims made in Re Lorillard and in Finlayson’s case would not, under the ordinary rules of private international law, have been enforceable in the for a concerned. 37.32 In Finlayson’s case the assets of the deceased situated in New South Wales and the Australian Capital Territory respectively, were vested in different administrators. Their Honours expressed the view that ‘if the New South Wales executor had also been the executor in the Territory the debts might perhaps have

been payable out of the general mass of assets, regardless of their local situation at the death of the deceased’.61 [page 850] 37.33 This opinion has been strengthened by the decision of Buckley J in Re Flynn, dec’d (No 2).62 In that case the same persons had been granted representation of the estate of the late Errol Flynn in New York and in England. In New York judgment was obtained against the administrator in respect of a claim which was statute-barred under English law. The question was whether the New York judgment debt could found a claim in the English administration. Buckley J held that the representative of the estate being the same persons in both countries, they ‘should be regarded as under an implied obligation to satisfy that judgment out of assets of the deceased’s estate in their hands or under their control, whatever those assets might be …’.63 37.34 In relation to such claims as are enforceable according to the law of the forum, it is the duty of the administrator to pay them, treating all creditors, whether local or foreign, equally. If the assets of the estate in the forum are insufficient, the rules and priorities of the law of the forum relating to insolvent estates must be applied, again without distinction between local and foreign creditors.64 If an administration were pending in another country and the same creditors had proved their debts in that country, the forum must make the necessary adjustments to ensure that the creditors who had already proved in the foreign administration did not obtain more than the creditors proving only locally.65 37.35 Where there are separate administrations in the forum and at the domicile of the deceased, it is normally the duty of the administrator in the forum to pay the local debts of the deceased and pay any surplus to the administrator at the domicile for the purpose of distributing the assets.66 But the principle was qualified by the High Court in Finlayson’s case in an obiter dictum in the following terms:67 The court of the situs has, however, a discretion in the matter, and there is authority for saying that, a remission to the representative in the place of the domicile will not be directed if, as is the case here, the result would be to subject the property to a claim which is not enforceable against it in the administration under the lex fori.

37.36 The authority on which their Honours relied for this statement was the

case of Re Lorillard68 which, however, does not appear to go as far as their Honours imply. In that case Eve J at first instance had given leave to the English administrators of the estate of a New York domiciliary to distribute the assets in England to the beneficiaries entitled under New York law. It appears that all the beneficiaries were resident in England. The Court of Appeal contented itself with saying that there is no duty on the English administrator to hand over the surplus assets to the executor of the domicile under all circumstances and that, therefore, it was unable to say that Eve J had wrongly exercised his discretion. There is a great deal of difference, it is submitted, between saying that an executor will not be compelled to remit at the discretion of the court and saying that in such circumstances the executor must not remit. [page 851] 37.37 Admittedly, the statement made by the High Court was obiter, for the question of remission had not yet arisen. However, in Bath v British and Malayan Trustees Ltd,69 Helsham J held on the basis of the dictum of the High Court in Finlayson’s case that, if the Singapore executor had been granted letters of administration in New South Wales, he would have been bound in an administration suit to make an order preventing the removal out of New South Wales of the local assets of a person who had died domiciled in Singapore upon evidence that, if remitted, the proceeds would have been used for the payment of Singapore death duties. It was for the reason of avoiding the necessity for such proceedings that he granted the application of one of the next of kin for letters of administration to the exclusion of the executor appointed under the law of the deceased’s domicile. 37.38 However, if the local administrator does, despite any injunctions to the contrary, make payment to the principal administrator of the domicile, it would appear that there would be a good defence to any civil action brought at law for it seems, as Helsham J pointed out in Bath v British and Malayan Trustees Ltd,70 that a payment by the local representative to the executor of the domicile would be a good discharge. _________________________ 1.

Administration and Probate Act 1929 (ACT) s 9(1); Probate and Administration Act 1898 (NSW) s 40; Administration and Probate Act 1969 (NT) s 14(1); Succession Act 1981 (Qld) s 6(1); Administration and Probate Act 1919 (SA) s 5; Supreme Court Civil Procedure Act 1932 (Tas) s 6(5); Administration and Probate Act 1958 (Vic) s 6; Administration Act 1903 (WA) s 6.

2.

Re Aylmore dec’d [1971] VR 375.

3.

[1985] ACLD 40.

4.

In the Will of Palmer (1904) 29 VLR 946.

5.

[1924] VLR 237.

6.

See note 5 above, at 240 per Weigall AJ.

7.

Re Haefliger [1992] ACL Rep 395 NSW 21.

8.

Enohin v Wylie (1862) 10 HL Cas 1.

9.

Banque Internationale de Commerce de Petrograd v Goukassow [1923] 2 KB 682 at 691 per Scrutton LJ.

10. (1882) 8 App Cas 82 at 92. 11. This dictum was cited by Campbell J in Re Def and the Protected Estates Act 1983 [2005] NSWSC 534 at [68]. 12. Electronic Industries Imports Pty Ltd v Public Curator [1960] VR 10. 13. L’Abbate v Collins & Davey Motors Pty Ltd [1982] VR 28. 14. Boyd v Leslie [1964] VR 728; Cash v Nominal Defendant (1969) 90 WN (NSW) Pt 1 77. It is submitted that the decision to the contrary in Lea v Smith [1923] SASR 560 is wrong. 15. Re Butler [1969] QWN 48. See also Re Def and the Protected Estates Act 1983 [2005] NSWSC 534 at [68] per Campbell J who observed that ‘even when a Victorian grant of probate was accorded full faith and credit in New South Wales, that might not result in the executor appointed under it having any authority to deal with New South Wales assets’. His Honour noted that it was not necessary to express any final view concerning that matter. 16. Cash v Nominal Defendant (1969) 90 WN (NSW) Pt 1 77. 17. IRC v Stype Investments Ltd [1982] Ch 456. 18. Charron v Montreal Trust Co (1958) 15 DLR (2d) 240. 19. (1969) 90 WN (NSW) Pt 1 77 at 80–1. 20. (1958) 15 DLR (2d) 248. 21. Vanquelin v Bouard (1863) 15 CBNS 341. 22. (1935) 54 CLR 188 at 197 applied in Re Rogowski (dec’d); Estate of Bresiada [2007] SASC 161. 23. Re the Duchess of Orleans (1859) 1 Sw & Tr 253. 24. In the Goods of Rolland (1893) 14 LR (NSW) (B&P) 102. 25. In the Goods of Hill (1870) LR 2 P & D 89. 26. [1903] P 125. 27. [1904] P 269. 28. [1949] P 367. 29. [1969] 2 NSWR 114. 30. [1982] Ch 456. 31. (1935) 54 CLR 188. 32. Administration and Probate Act 1929 (ACT) s 80; Wills, Probate and Administration Act 1898 (NSW) s 107; Administration and Probate Act 1969 (NT) s 111; British Probates Act 1898 (Qld) s 4;

Administration and Probate Act 1919 (SA) s 17, s 19 allows the registrar to reseal foreign grants if satisfied that provision is similar to that in the forum; Administration and Probate Act 1935 (Tas) s 48, s 47A(2) allows foreign countries to be proclaimed; Administration and Probate Act 1958 (Vic) s 88(4), s 88D(1) allows countries outside the Commonwealth of Nations to be proclaimed; Administration Act 1903 (WA) s 61. For an example of an application under the South Australian Act, see In the estate of Nicholls (dec’d) [2012] SASC 53. 33. Re Carlton [1924] VLR 237. 34. In the Will of Lambe [1972] 2 NSWLR 273. 35. Re O’Driscoll [1952] NZLR 890. See also Re Rogowski (dec’d); Estate of Bresiada [2007] SASC 161. 36. (1843) 3 QB 493. 37. See note 36 above, at 507. 38. See note 36 above, at 509. 39. [1952] Ch 86 at 87. 40. Weinstock v Sarnat [2005] NSWSC 744 at [23]. 41. See Dicey, Morris & Collins on the Conflict of Laws, 14th ed, Thomson Sweet & Maxwell, London, 2006, pp 1223–4. 42. [2005] NSWSC 744. 43. Re Fitzpatrick [1952] Ch 86. 44. (1822) 1 Dowl & Ry KB 35. 45. Dawson v Perpetual Trustee Co Ltd (1953) 89 CLR 138; In the Estate of Webb (dec’d); Webb v Rogers (1992) 57 SASR 193; Constantinou v Constantinou (2012) 271 FLR 276. 46. Dryden v Dryden (1878) 4 VLR (E) 202. 47. Permanent Trustee Co (Canberra) Ltd v Finlayson (1968) 122 CLR 338 at 341. 48. Bunbury v Bunbury (1839) 1 Beav 318; 48 ER 963; Hope v Carnegie (1866) 1 Ch App 320; Heilman v Falkenstein (1917) 33 TLR 383; Weinstock v Sarnat [2005] NSWSC 744. 49. Alliance Bank (Ltd) v Irving (1865) 4 SCR (NSW) Eq 17. 50. In the Will of Basse [1909] VLR 313. 51. CPR (ACT) r 6501(1)(e)(i); UCPR 2005 (NSW) Sch 6 para (o); SCR (NT) r 7.01(1)(d); UCPR 1999 (Qld) r 124(1)(e)(i); SCCR (SA) r 40(1)(h); SCR 2000 (Tas) r 147A(1)(p)(i); SC(GCP)R (Vic) r 7. 01(1)(d); SCR (WA) O 10 r 1(1)(d). 52. [2005] NSWSC 744. 53. See Chapter 4 above. 54. (1968) 122 CLR 338 at 342–3. 55. See Constantinou v Constantinou (2012) 271 FLR 276; Hutchinson v Bank of Scotland plc [2012] QSC 28; and see further Chapter 34 below. 56. [1935] Ch 645. 57. Re Kehr [1951] 2 All ER 812. 58. [1922] 2 Ch 638. 59. (1968) 122 CLR 338 at 342. 60. But see now Administration and Probate Act 1929 (ACT) s 8C.

61. (1968) 122 CLR 338 at 344. 62. [1969] 2 Ch 403. 63. See note 62 above, at 414. 64. Re Kloebe (1884) 28 Ch D 175; Re Doetsch [1896] 2 Ch 836. 65. Re Kloebe (1884) 28 Ch D 175 at 177 per Pearson J. 66. Re Forster (1919) 20 SR (NSW) 156. 67. (1968) 122 CLR 338 at 346. 68. [1922] 2 Ch 638. 69. [1969] 2 NSWR 114. 70. See note 69 above, at 120.

[page 852]

Chapter 38

Succession Introduction 38.1 Once the administration of the estate (considered in Chapter 37) is completed, the next step is the distribution of the assets of the estate among those entitled to succeed as the beneficiaries under the will or on intestacy. Here, by force of ancient history, we must draw a distinction between succession to movable and succession to immovable property.1 As regards the former, the general principle is that the law of the deceased’s domicile at the time of death governs. As regards the latter, the general principle refers to the law of the situs of the immovable property. In both cases, the reference to the law of the domicile and the law of the situs respectively is a reference to whatever law a court of that legal system would have applied, had it been seized of jurisdiction in the identical circumstances of the case. These general principles are, of course, subject to exceptions, particularly in relation to succession by will. It is therefore preferable to deal with intestacy first, after some observations in respect of jurisdiction.

Jurisdiction 38.2 Where a deceased person leaves property in the jurisdiction, the court of the forum may determine the validity,2 construction and effect3 of the will and any question pertaining to the succession,4 regardless of the domicile of the deceased. [page 853]

38.3 Courts of the forum recognise the jurisdiction and follow the determinations of the court of a foreign country in which a person dies domiciled in respect of the succession to movables wherever situated of the deceased, and of all property of the deceased situated in that country.5

Intestate Succession Movables 38.4 It has been trite law, at least since Pipon v Pipon,6 that the succession to movable property on intestacy is determined by the law of the domicile of the intestate at the time of death.7 This means that an Australian court having jurisdiction in the state or territory where there are assets of the deceased, must distribute those assets among the persons who are entitled to receive them under the law of the deceased’s last domicile. Indeed, the law of the domicile determines not only the categories of next of kin entitled to take, but also whether the claimant is one of such next of kin. Thus, it has been held that a woman whose marriage to the deceased was not recognised under Australian law could nevertheless take as the widow of the deceased because she was considered to be such under the law of his domicile.8 38.5 The principle is not limited to claims by next of kin. There is authority that suggests that any person or institution which by the law of the deceased’s last domicile is regarded as the ‘ultimate heir’ of the deceased on intestacy will be recognised as such in the forum. Thus, in Re Maldonado9 it was held that the State of Spain (as it was then called) could succeed to the English movables of a domiciled Spaniard since under Spanish law the State of Spain was designated as the ultimate heir of a Spaniard dying intestate without leaving any natural heirs. 38.6 Against this we must contrast the situation where the Crown or state, either in Australia or abroad, takes property by virtue of a prerogative right to ownerless property. Such a claim is territorial only and extends to property within the territory of the claimant sovereign regardless of the domicile of the foreign owner.10

Immovables 38.7 In relation to immovable property, the lex situs determines the beneficial

succession on intestacy no matter what the domicile of the intestate. Thus, if a person dies domiciled abroad leaving immovable assets within the forum, those [page 854] assets must be distributed among the persons entitled to them under the law of the forum.11 If the widow(er) of the deceased is entitled under the law of the forum to a statutory charge, that charge must be paid out of the local immovable assets even though that person may, pursuant to the law of the domicile, have received the bulk of the movable assets.12 The lex situs determines not only what categories are entitled, such as certain categories of next of kin, but also what persons fall within that description. In determining the latter question the court of the situs will apply, in appropriate circumstances, its choice of law rules.13

Wills Capacity 38.8 Lack of capacity is usually alleged to result from a legal status such as infancy or coverture, or from mental incompetence. Ehrenzweig argues, with justification,14 that questions of mental incompetence are questions of fact rather than of law and must be decided without reference to any specific legal system. However, in In the Estate of Fuld (No 3),15 where it was alleged that a testator domiciled in Germany lacked the mental capacity to make a will disposing of movable assets in England, Scarman J took the view that English law drew no distinction between lack of capacity due to immaturity or status and incapacity arising from ill health. Since he found that the German concept of testamentary incapacity was essentially the same as the English, his Lordship ultimately conducted the purely factual enquiry that Ehrenzweig would have wished him to conduct.

Movables 38.9 The general rule is that the capacity of the testator as regards a will disposing of movable property is governed by the law of the domicile. Some doubt exists whether the time at which the domicile will be relevant is the time

of death or the time of making the will. In accordance with the general principles stated earlier, the law of the domicile at the time of the testator’s death should be the only law considered. But most textwriters today16 favour the law of the domicile at the time of making the will. In the absence of any binding authority,17 it would be in accordance with the traditional leaning of common law judges in favour of testamentary validity [page 855] to give the testator the option of either the domicile at the time of making or at the time of death.18

Immovables 38.10 As long as our courts adhere to the traditional division between movables and immovables there is little doubt that the capacity of the testator to dispose of immovables by will is governed by the law of the situs at the time of the testator’s death.19

Capacity to take 38.11 As regards the capacity of a legatee to take a bequest of movables, English law has been remarkably supple. In Re Hellmann’s Will,20 Lord Romilly MR held that a legacy could be paid to a beneficiary when he attained majority under the law of his domicile or under the law of England, whichever first happened. However, if by the law of the domicile of the beneficiary the right to the property, being movable, is vested in another person, such as the father of the beneficiary, the court will order payment to the person entitled by the law of the beneficiary’s domicile.21 As regards a devise of immovable property it is assumed that capacity to accept a devise depends entirely on the law of the situs.22

Formal validity Common law 38.12 At common law, the formal validity of a will of movables was governed

by the law of the domicile of the deceased at the time of death,23 regardless of residence, nationality or place of execution of the will.24 In theory, the effect of this rule was that a testator having made a will in accordance with the law of the domicile at that time automatically invalidated that will if he or she moved to another domicile with different formal requirements. In In the Will of Lambe,25 the testator made a will in Argentina but later acquired a domicile in Portugal. Helsham J considered Portuguese law to be primarily applicable, although by way of renvoi it referred back to Argentinean law. Since the will was in English form, it was formally invalid under [page 856] either law. The forum will apply a rule allowing it to dispense with formal defects in the will provided the law of the last domicile permits this.26 The common law rules apply only to wills made by testators dying before the state and territory legislation giving effect to the Hague Convention of 1961 on the Conflict of Laws Relating to the Form of Testamentary Dispositions came into force. As that Convention has been in force for decades, it is likely that any court that is required now to apply the common law rules would dispense with any formal defects if the will were to satisfy the statutory requirements.27 38.13 So far as a will relating to immovable property was concerned, at common law it had to conform with the lex situs whatever the domicile of the testator at the time of death.28 The rigidity of those rules was only modified by the operation of renvoi.29

The Hague Convention 38.14 All Australian jurisdictions have passed legislation based on the Hague Convention of 1961 on the Conflict of Laws Relating to the Form of Testamentary Dispositions.30 This legislation abandons the archaic distinction between wills relating to movable and wills relating to immovable property. With one relatively minor exception, all the choices laid down by the statute are available whatever the nature of the property disposed of. 38.15 Under the legislation, the will must be treated as formally valid if the execution conforms with the internal law of any of the following ‘countries’ or ‘places’:31

(a) the place where the will was executed,32 even if done in a hotel in transit;33 (b) the place where, at the time of the execution of the will, the testator was domiciled; (c) the place where, at the time of death, the testator was domiciled; (d) the place where, at the time of execution of the will, the testator had his or her habitual residence; (e) the place where, at the time of death, the testator had his or her habitual residence; [page 857] (f)

the country of which, at the time of execution of the will, the testator was a national;

(g) the country of which, at the time of death, the testator was a national. For these purposes, a ‘country’ is defined in the Australian Capital Territory, Queensland, South Australia, and Western Australia as ‘any place or places having its own law of nationality or citizenship’, such as Australia, the United States, and the United Kingdom, and a ‘place’ includes a state or territory forming part of a ‘country’ such as New South Wales, Louisiana, or Scotland.34 The legislation in New South Wales, the Northern Territory, Tasmania, and Victoria simply refers to the internal law of a ‘place’ without defining that term. 38.16 In the following two cases, an additional choice is available to the testator: (a) In the case of a will executed on board a vessel or aircraft, the testator may, in addition to the systems stated in (a)–(g), make the will according to the law of the place with which having regard to the registration or other relevant circumstances the vessel or aircraft is most closely connected.35 (b) In the case of a will, so far as it disposes of immovable property, the testator may, in addition to the systems stated in (a)–(g), make the will in conformity with the internal law in force in the country or place where the property was situated.36 38.17 For the sake of clarity, ‘internal law’ is defined as the law that would apply in a case where no question of the law in force in any other place or

country arose.37 This means that the operation of renvoi is excluded in so far as the proponent of the will seeks to rely upon the legislation to validate the will. However, the legislation does not exclude the operation of the common law rules, even though it incorporates the place of the testator’s domicile at the time of death and, in the case of immovable property, the law of the place of situation as possible options. Side by side with the options stated in the statute itself, the proponent of the will can also rely, in the case of movable property, upon the law of the domicile of the deceased at the time of death, including any legal system referred to by that law, and, in the case of immovable property, upon the law of the place of situation of the immovable property, including any legal system referred to by that law. 38.18 If the legislation is relied upon, difficult questions may arise if reference becomes necessary under the statute to the internal law of the nationality of a ‘country’ that contains more than one ‘place’. Thus, it may happen that a Victorian [page 858] court may have to consider the validity of a will made by a citizen of the United States. Assume that in the circumstances of the case only options (f) and (g) (see 38.15) can be invoked to validate the will. The ‘country’ of which the deceased was a national does not have a single law relating to the formal validity of wills, but consists of more than 50 ‘places’, each with greatly varying laws on the topic. In such a case it is provided that the court must, in the first place, ascertain whether there is in force throughout the country concerned an internal choice of law rule indicating which law among the several systems existing within that country can properly be applied in the case in question. Thus, if there exists within the United States a rule of federal law which directs that the law of a particular state within the United States shall be applied to the will of this particular citizen, the Victorian court must apply the law so directed. Failing that, the court is directed to apply the system existing within the country of nationality with which the testator was most closely connected at the relevant time, and for this purpose the relevant time is the time of the testator’s death, where the matter is to be determined by reference to circumstances prevailing at the time of his or her death, or at the time of execution of the will in any other case.38 This rule is necessarily vague and can create serious problems.

What, for instance, is the state with which the testator was most closely connected if the testator was born outside the United States and, although a citizen of that country, has never resided for any length of time in any part of the United States?39 38.19 The relevant date at which the laws referred to must be considered is the date of execution of the will.40 This provision alters the common law situation where a will was always regarded as speaking from the date of death. Thus, if the testator changed his or her domicile or even if, the domicile remaining unchanged, the law of the domicile was changed between the time of execution and the testator’s death, at common law the formal validity of the will had to be tested with reference to the law as it stood at the time of the testator’s death. Now, if the change of domicile would operate to invalidate the will, it must be ignored. If the testator changes domicile after making the will and dies domiciled in a different country, the law of that country can be considered under option (c) but only as it stood at the time of execution of the will. Since the common law rules are not displaced, however, this would not prevent invocation of the common law rule referring to the law of the deceased’s domicile as at the time of death. To this general provision there is added a proviso that the court may take account of a subsequent alteration of law affecting wills executed in that country or place if that alteration enables the will to be treated as properly made. This means that the forum can take account of any retrospective change in the law of the relevant [page 859] country or place enacted at any time before the hearing, if its operation is to validate a will that would otherwise have been invalid as to form. 38.20 Further, the legislation makes it clear that any questions concerning the formalities to be observed by testators or the qualification of witnesses are to be treated as matters of form, notwithstanding the fact that the foreign law to be applied classifies such matters as questions of substantive or essential validity.41 This provision classifies as formal, for the purposes of the legislation, requirements such as the civil law’s insistence that wills be executed in the presence of a notary public. In so far as certain countries may require that wills

executed by their citizens abroad be notarised, this provision will allow an Australian court to ignore that requirement if the will conforms with the formal requirements of the place of execution or habitual residence.

Construction 38.21 The term ‘construction’ should be given a wider meaning in this context than it normally bears. It includes not only the rules by which the court discovers the intention of the testator, such as the meaning of the words ‘pounds’,42 or ‘next of kin’,43 but also the rules that it applies to deal with contingencies which the testator clearly did not foresee, such as the fact that one of the residuary legatees predeceased him or her.44 Since the courts have been much more flexible in determining the law governing construction, there is obvious merit in defining ‘construction’ broadly. 38.22 Problems of translation must be distinguished from problems of construction. It may happen that the will is written in a language that is foreign to the legal system by which the will is to be construed. This happened in Re Berger, dec’d,45 where a testator domiciled in England wrote a will in Hebrew. As Sir Denys Buckley said, in the case of such a testator using a foreign language including technical legal terms inappropriate to English law but appropriate to a foreign system of law: … an English court administering his estate must ascertain what the testator intended by ordinary processes of construction, including expert evidence of the meaning and effect of those technical terms in the relevant foreign law and possibly of how a court within that system of foreign law would give effect to that document. The English court in the light of all the admissible evidence will determine what the testator intended and will give effect to that intention so far as it is valid and effectual by English law. In so doing the English court is applying English law and has recourse to evidence of foreign law merely for the purpose of ascertaining the testator’s intention.46

[page 860]

Movables 38.23 As regards movables the law is reasonably clear. The applicable law is the law that the testator intended to apply, which in the absence of any indication to the contrary is presumed to be the law of the domicile. The relevant time at which the domicile is determined in this connection is the time of making the will and the construction is not affected by a subsequent change of domicile.47

This common law rule is restated by statute in all Australian jurisdictions.48 38.24 The testator can expressly stipulate another law by which the will is to be construed.49 In that case the court will apply that law.50 But the presumption in favour of the law of the domicile is not rebutted merely because the testator made a will in the form and language appropriate to another country.51 An example of a case where the presumption was rebutted without express words is found in Public Trustee v Vodjdani.52 In that case, the testator who was domiciled at the time in South Australia made a will in Germany in the German language, disposing of real estate situated in South Australia. Johnston J held that the will should be construed by reference to German law, as the deceased had indicated such intention by making the will in Germany, in the German language, appointing a person permanently resident in Germany as having ‘general power of attorney’, and using language appropriate to the appointment of heirs under the German Civil Code, one of the named heirs being present in Germany.53

Immovables 38.25 As regards wills relating to immovables, the general rule was stated by Lord Denning in Philipson-Stow v Inland Revenue Commissioners54 in the following words: If a question should arise as to the interpretation of the will, it will normally fall to be construed according to the law of his domicile at the time when he made his will. But this interpretation would itself be subject to the overriding requirement that it must in no way conflict with the law of the country in which the property is situated: for if the disposition is not one which is permitted or recognized by the lex situs, it cannot be given effect.

The first part of Lord Denning’s statement is borne out by the decision of Finlay J of the New Zealand Supreme Court in Re Voet.55 In that case a testator domiciled in South Africa devised by her will immovable property in New Zealand. This property was subject to a mortgage and the question arose whether the mortgage debt should [page 861] be charged against the personalty of the deceased or be met by the devisees of the realty. The former was the position under South African law, the latter under New Zealand law. Finlay J treated it as a matter of construction and applied

South African law, as the law of the deceased’s domicile. As with wills relating to movables, that presumption can be rebutted in favour of another law.56 However, the effect of the will as construed by the appropriate law must be permitted by the lex situs. In Public Trustee v Vodjdani the testator had purported to empower his sister-in-law to assign part of the estate consisting of immovable property in South Australia at her discretion. This provision, whatever its effect under German law, was held to be invalid under South Australian law for uncertainty.

Essential validity 38.26 Even though a will is valid in form, it may yet fail because of some substantial defect. It may be alleged that the testator did not have the right of free disposition. Under many foreign systems a testator is bound to leave some portion of the estate to his or her descendants (legitima portio). The Testator’s Family Maintenance (or Family Provision) legislation, which operates in all Australian jurisdictions, has also been held to affect the substance of the testamentary disposition.57 ‘Essential validity’ includes the question of whether the will was freely and voluntarily made by the testator, unaffected by force, fraud or undue influence. However, the question of who bears the burden of proving the absence of such free intention is a matter of procedure for the lex fori.58 38.27 The validity of a gift to a particular beneficiary or legatee must also be regarded as a matter of essential validity. This includes questions such as whether an attesting witness can take,59 or whether the gift infringes the rules against mortmain,60 or the rules against accumulation and perpetuities,61 or whether the gift complies with the requirements for making a charitable gift.62 In Re Blyth,63 Thomas J of the Supreme Court of Queensland held that the question whether the will contained a valid discretionary power of appointment was a question of essential validity. 38.28 The general rule is that such questions fall to be determined by the law of the domicile of the testator at the time of death so far as movables are concerned, and by the law of the situs so far as immovables are concerned. A change of domicile between the time of making the will and the time of death can, therefore, affect the essential validity of the will. A good example of what can happen is seen in Re Groos.64 In that case the deceased had made her will in the Netherlands at a time when she was domiciled there. In it she appointed her

husband heir to her estate subject to any legitimate portion to which her relatives might be entitled. [page 862] Under Dutch law she could only dispose of one quarter of her estate, the other three quarters being destined by that law for her next of kin as their legitimate portions. After making the will, the deceased acquired a domicile in England, where she died. The question arose whether her husband could only claim one quarter of her estate, or was now entitled to all her assets. Sargant J held that by her acquisition of an English domicile the requirement that a fixed portion of the estate should go to her relatives had been swept away; consequently, the husband was entitled to the whole of the estate without reservations. 38.29 The converse situation can also arise. A will that validly disposes of the whole of the testator’s property according to the law of the domicile at the time of making the will may become invalidated, at least in part, by a subsequent change of domicile to a country which restricts the right of a testator’s disposition. In South Australia, the legislation provides that a will shall not be invalidated or altered in construction by a subsequent change of domicile on the part of the testator.65 In In the Estate of Groos66 Gorell Barnes J interpreted s 3 of Lord Kingsdown’s Act 1861, of which the South Australian legislation is a local copy, as applying to matters of substantive as well as formal validity. In the other states and territories, the relevant legislation refers only to the construction of the will being unaffected by a change in domicile.67

Revocation 38.30 A will can be revoked in several ways. In the first place, it can be revoked intentionally by the testator, either by the testator executing another testamentary instrument in which the testator declares the intention to revoke the earlier will or by the testator performing some act such as burning, tearing, eating or otherwise destroying the will which in law is sufficient to revoke that will.

Revocation by intention

38.31 If the testator revokes a previous will by executing a new testamentary instrument, that instrument must be valid and effective in its own right. At common law this means that the revoking will must be valid both as to form and as to essential validity according to the law of the deceased’s domicile in so far as the instrument affects movables, and according to the law of the place of situation, so far as the will affects immovables. 38.32 In relation to movables it is a moot point whether the revocation should be effective under the law of the testator’s domicile at the time of revocation or at the time of death. There is no reported decision in England or Australia on the point, although in Re Barker,68 Tadgell J of the Supreme Court of Victoria said, obiter, that the revocatory effect of a later will was to be determined by the law of the deceased’s [page 863] domicile at the time the revocatory will was made ‘or perhaps at the time of … death’. Support for the law of the domicile at the time of revocation is found in the New York case of Re Traversi’s Estate.69 In that case the deceased made his will while domiciled in New York. He later became domiciled in Virginia. Shortly before his death he resumed his New York domicile. While he was domiciled in Virginia, he obliterated several paragraphs of his will. Under the law of Virginia this was effective to revoke those paragraphs. Under the law of New York the striking out of the paragraphs was ineffective to revoke them. The New York Surrogate’s Court held that it should apply the law of Virginia as the law of the domicile of the deceased at the time of the act of revocation. The will was therefore held to be partially revoked. 38.33 Even if a new testamentary instrument is valid and effective under the law of the testator’s domicile, there is the further question of whether it was intended to affect the original will. That may raise a further choice of law question. Should the effect of the supposedly revocatory will be considered solely as a question of construction of the later will (and hence by the law of the testator’s domicile at the time of making the revocatory instrument), or should the question properly be whether there is sufficient evidence that the revocatory will was intended to revoke the original will, in which case it would be governed by the lex fori, as are all evidentiary matters? Although this would seem at first sight to be simply a question of construction of the later will, the matter may be

viewed differently if the question arises in the context of an application for probate of the original will. That was what happened in Re Barker,70 where the testator made a will in Victoria, then made a later will in Germany containing a general revocation clause. The testator was domiciled in Germany at all times. The executor of the Victorian will applied for probate in Victoria. One of the beneficiaries opposed probate of the Victorian will on the basis that it had been revoked by the German will. Tadgell J held that the question whether the German will was sufficient in its terms to revoke the Victorian will was to be governed by German law, that being the law of the testator’s domicile both when the German will was made and when she died. However, the further question of whether the German will was ever intended to affect the Victorian will was to be determined as a matter of evidence according to the lex fori. Extrinsic evidence about statements made by the testator before and after she made the German will was admissible in determining whether probate of the Victorian will should be granted. Looking at the extrinsic evidence as well as the German will, Tadgell J concluded that the testator’s intention was that the German will should govern her assets in Germany, and that her Victorian will should continue to govern her assets in Victoria. Accordingly, probate of the Victorian will was granted.71 [page 864] 38.34 Similarly, in Re Estate of Crawford (dec’d),72 a man who died domiciled in England made a will in Australia disposing of his Australian assets and two later English wills, both of which stated that they revoked all previous wills and codicils. Besanko J of the Supreme Court of South Australia admitted the Australian will to probate, concluding on the evidence that the English wills were not intended to revoke the Australian will. The choice of law issue was not so acute in Crawford as it was in Barker because Besanko J proceeded on the basis that English law (the law of the domicile) and South Australian law (the law of the forum) were the same.73 Conversely, in Schneider v Sydney Jewish Museum Inc,74 a woman who died domiciled in New South Wales made a will in Israel disposing of her assets in that country and a series of later wills in Australia, each of which contained a revocation clause. Sackville AJ held that the later Australian wills revoked the earlier Israeli will. As the law of the deceased’s last domicile was the same as the law of the forum, no choice of law issues arose.75

38.35 The scission between movables and immovables can lead to unfortunate consequences, which a testator may never have foreseen. An example of this is found in the Ontario case of Re Howard.76 In that case, a testatrix, originally domiciled in Ontario and possessed of both movable and immovable property situated in that province, had first made a will disposing of her property in conformity with the law of Ontario. Subsequently, she changed her domicile to Quebec and in that province made a holograph will in conformity with the law of Quebec which purported to revoke the Ontario will and make fresh dispositions concerning the entirety of her estate. The Quebec will was not witnessed and thus did not comply with the law of Ontario. She died domiciled in Quebec. Orde J held that the revocation was effective as regards the movables of the deceased situated in Ontario, the disposition of which was now governed by the Quebec will. He held, on the other hand, that the revocation, not being in accordance with the law of Ontario, was ineffective to revoke the earlier will as far as the immovable property of the deceased in Ontario was concerned. In the result, the Ontario immovable estate was distributed in accordance with the terms of a will that the testatrix quite clearly had intended to revoke.77 38.36 A revocation executed in an instrument that is admissible to probate in the forum by reason of compliance with the provisions of the Hague Convention78 will be recognised as effective so far as form is concerned. For those purposes the distinction between movables and immovables has been virtually abolished. Thus, if facts similar to those in Re Howard were to arise in Victoria today, a will revoking an earlier will relating to immovables in Victoria and executed by the testator in a new domicile according to the law thereof would be recognised as effective in Victoria [page 865] either because it complied with the law of the testator’s domicile at the time of its making, or because it complied with the law of the place of execution.79 In addition, it is expressly provided that a will revoking an earlier will shall be treated as properly executed, so far as the revocation is concerned, ‘if the execution of the later will conforms to any law by reference to which the revoked will or provision would be so treated’.80 This, so far as revocation is concerned, further multiplies the choice, for the testator can invoke not only the laws relevant at the time of executing the new will but also the laws by which the earlier will could be sustained.

38.37 The statutory provisions are not concerned with the revocation of the will by an act. Here, the question depends still on the common law. In relation to movables the act must be one that the law of the domicile of the testator will regard as effective.81 In relation to immovables the act must be one that the law of the place of situation will regard as effective.82

By operation of law 38.38 A will may also be revoked by operation of law. A mere change of domicile by a testator subsequent to the making of a will relating to movables could at common law operate to invalidate that will for, with the possible exception of capacity to make a will and the question of construction of a will, all other questions concerning both the formal and essential validity of the will fell to be determined by the law of the domicile of the testator at the time of death. It is now provided in all jurisdictions that the construction of a will cannot be affected by a subsequent change in the domicile of the testator.83 In South Australia the legislation goes further, providing that a will shall not be revoked or invalidated by a change of domicile on the part of the testator.84 Presumably this includes questions of substance as well as of form.85 38.39 Another method in which a will may be revoked by operation of law is by the subsequent marriage of the testator. In all jurisdictions, statutory provisions operate to invalidate a will in the event of a subsequent marriage by the testator unless the will was made in contemplation of marriage.86 In the Australian Capital Territory, the legislation extends to ‘civil partnerships’, which are registered civil relationships [page 866] between adults, including adults of the same sex.87 Similarly, in Queensland a will is revoked by the testator entering into a registered relationship,88 and in Tasmania, the legislation extends to registered deeds of relationship, which may also include adults of the same sex.89 38.40 In all jurisdictions, statute provides that divorce or annulment of a marriage revokes any beneficial disposition or appointment as executor or executrix made by the testator in favour of his or her former spouse.90 It is submitted that by parity of reasoning the effect of a dissolution or annulment of a

will is determined by the law of the domicile of the testator at the time of the decree.91 38.41 Another question that remains unsettled is whether a change of the matrimonial domicile occurring after the date of the marriage can operate to invalidate, as from the change of domicile, a will made prior to the marriage. This question was raised in In the Estate of Groos.92 In that case the deceased had made her will in Holland while she was domiciled there. A few days later she married in Holland a Dutchman then domiciled in that country. Under the law of the Netherlands marriage does not revoke a will. Some years later the husband acquired an English domicile, which continued till the death of the wife. It was argued that, upon the acquisition of a domicile in England, the will of the wife made prior to her marriage was revoked through the operation of the English rule, which then became applicable. This argument is clearly sustainable if one persists in the matrimonial property law classification and accepts that a change in the matrimonial domicile can result in a change of the law applicable to the matrimonial property of the spouses. Since a will speaks only from the date of death and can at any time be revoked or altered by the testator up till then, no question of a vested right arises. However, in In the Estate of Groos, Gorell Barnes J found it unnecessary to determine this question. On a consideration of the facts of this case he found that even if the change of domicile at common law would have operated to invalidate the will, s 3 of Lord Kingsdown’s Act, which provided that a will shall not be invalidated by a subsequent change of domicile on the part of the testator, would save it. Since that section still exists in its original form in South Australia, the question may arise again to plague us. If it does, it may persuade the courts of the wisdom of abandoning the process of classification by nearest analogy and adopting the rules proposed by the Australian Law Reform Commission. [page 867]

Family Provision Legislation 38.42 All Australian jurisdictions have enacted Family Provision (formerly Testator’s Family Maintenance) legislation,93 which authorises the court, where

it is satisfied that the testator made inadequate provision by his or her will for the proper maintenance, education and advancement in life of dependants, to order such provision or further provision for the dependant out of the estate of the testator as it deems appropriate. In all jurisdictions the courts are also given authority to make provision for dependants out of the estate of a person dying intestate.94 Since the provision is to be ordered out of the remainder of the estate after debts have been paid, the question affects the substance of the succession and is not merely one of administration of assets.95 38.43 The relevant principles applicable to jurisdiction in Testator’s Family Maintenance in the absence of legislative provisions are set out in the judgment of Sholl J in Re Paulin:96 (a) The courts of the testator’s domicile alone can exercise the discretionary power arising under the appropriate Testator’s Family Maintenance legislation of the domicile so as to affect his movables and his immovables in the territory of the domicile; …97 (b) The same courts alone can exercise such discretionary powers as to affect under the same legislation movables outside the territory of the domicile; …98 (c) The courts of the situs can alone exercise such discretionary power to affect, and then only if there is Testator’s Family Maintenance legislation in the situs providing for it, immovables of the testator out of the jurisdiction of the courts of his domicile; and the courts of his domicile cannot exercise their discretion so as to deal with such immovables; …99

According to these rules, which still apply in all states and territories except New South Wales and South Australia, jurisdiction depends entirely on the domicile of the deceased at the time of death in the case of movables and on the situs in the case of immovables. [page 868] 38.44 In New South Wales, where the Jurisdiction of Courts (Foreign Land) Act 1989 (NSW) has removed the inability of New South Wales courts to deal with foreign land (see 3.117–3.119 above), jurisdiction can be exercised whether or not the property is situated in New South Wales or the deceased died domiciled there.100 But presumably a New South Wales court would not exercise jurisdiction if there was no nexus whatever with the state. Indeed, in Balajan v Nikitin,101 Windeyer J of the Supreme Court of New South Wales took the view that the equivalent provision in earlier legislation102 was ultra vires the legislative power of New South Wales insofar as it purported to give power to make orders in respect of property situated outside New South Wales of persons

dying domiciled outside New South Wales, suggesting that, on its face, it would empower the court in any action commenced in New South Wales to make an order in respect of property outside New South Wales, whether or not there were any link with New South Wales other than that the proceedings were commenced in this state—a position which his Honour rightly regarded as extraordinary, given that it would purportedly empower the New South Wales court to make an order in respect of property in England, forming part of the estate of a deceased person who died domiciled in England, and who had no property whatever in New South Wales.103 His Honour concluded104 that the legislative intention was that the jurisdiction of the court should be extended to real estate outside New South Wales in the case of a deceased domiciled in New South Wales, and that the enactment did not carry into effect the legislative intention but over-reached it. Having regard to well-established authority on the power of state legislatures to make laws with extra-territorial operation, his Honour concluded that the requisite nexus with the state was absent, insofar as the section purported to give power to make orders affecting property outside New South Wales of a deceased person domiciled outside New South Wales, and to that extent the law was not within the competence of the New South Wales legislature, but pursuant to (NSW) Interpretation Act 1987, should be read down to operate as it was intended to operate.105 38.45 Notwithstanding Balajan v Nikitin, the provision was re-enacted in the Succession Act 2006, apparently without adverting to the circumstance that it had [page 869] been held to be unconstitutional.106 In Hitchcock v Pratt,107 Brereton J, considering the new provision, said that Windeyer J was right to hold that a law with respect to family provision that applied to property outside the state of a testator who died outside the state had no sufficient connection, and that the lack of sufficient connexion was even more clearly apparent under the new legislation, as whereas a family provision order could formerly be made only in relation to a deceased person in respect of whom administration had been granted in New South Wales - which had the effect that the testator would necessarily be domiciled, or at least have property, in the forum - now under part 3 of the Succession Act 2006 there was no longer any requirement that there be a grant of administration in connection with a family provision order, and thus no

requirement for a grant or reseal in New South Wales as a precondition to the exercise of family provision jurisdiction. Accordingly, a law with respect to family provision that purports to apply to property outside the state of a testator who dies domiciled outside the state had no sufficient connection with the state to be a valid exercise of the state’s legislative power and, to that extent, s 64 was invalid. However, to the extent that s 64 extends the reach of the Act to movables in New South Wales of testators who died domiciled elsewhere, and to immovables outside New South Wales of testators who died domiciled in New South Wales, it was not in excess of power and to that extent is valid.108 38.46 In Taylor v Farrugia,109 the Supreme Court of New South Wales had to consider an application for family provision in New South Wales from the estate of a person who died domiciled in Malta leaving movable and immovable property in New South Wales and Malta. Applying the jurisdictional rules stated by Sholl J in Re Paulin (see 38.43 above), Brereton J held that the court only had jurisdiction in relation to immovable property in New South Wales.110 The applicants for family provision apparently did not rely on the statutory extension of jurisdiction to property outside New South Wales. In the result, the decision is consistent with the approach of Windeyer J in Balajan v Nikitin. Brereton J took the Maltese assets and their probable disposition into account when considering what orders to make in New South Wales, but showed no inclination to make orders in relation to the Maltese assets of a Maltese domiciliary. Given that the New South Wales legislation confers jurisdiction to make a family provision order whether or not the deceased [page 870] was domiciled in New South Wales,111 it is surprising that the applicants did not press for inclusion of the deceased’s movable property in New South Wales, at least. 38.47 The presence in the forum of property which could be designated as notional estate is sufficient to attract jurisdiction, since once designated it assumes for practical purposes equivalence to actual estate.112 In Re Estate of Thiess,113 the deceased died domiciled in Queensland leaving only former property in New South Wales, which because of a gift within 12 months before death was treated for the purposes of New South Wales law as part of the deceased’s notional estate, it was held that the Supreme Court of New South

Wales had jurisdiction. Since the applicant had also commenced proceedings in Queensland, the proceeding was transferred there pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). In Hitchcock v Pratt,114 it was not seriously arguable that there was notional estate in New South Wales and, as it was uncontroversial that there was no actual estate in New South Wales and the deceased died domiciled in Victoria, the New South Wales proceedings were dismissed, the claimant having also commenced proceedings in Victoria. 38.48 In South Australia, jurisdiction can be assumed if the deceased died domiciled in South Australia or left real or personal property within that state.115 However, domicile within the jurisdiction does not give jurisdiction in respect of immovables outside the jurisdiction.116 38.49 In none of the states and territories is there any need for the applicant to be either resident or domiciled within the jurisdiction.117 Once the court has jurisdiction it can only apply the statute of the forum.118

Election 38.50 The doctrine of election is the product of the English Court of Chancery and forms part of the law in all countries that have inherited the common law of England. Its function has been defined as follows: ‘That he who accepts a benefit under a deed or will, must accept the whole contents of the instrument, conforming to all its provisions, and renouncing every right inconsistent with it’.119 38.51 The domestic situation in which the doctrine of election operates occurs where the testator has purported to give to A property which in reality belongs to B, [page 871] but at the same time has made a gift of his or her own property to B. Equity will put B to an election between either accepting the benefit of the will on condition of transferring his or her own property to A, or renouncing any benefit under the will. In the conflict of laws the question of election usually arises as a result of the scission between movables and immovables. Thus, a person domiciled in New

South Wales may by will devise immovables situated overseas to a stranger in blood and by the same will leave his or her movables, wherever situated, to the next of kin. Under the lex situs of the immovables the devise is invalid because the will does not comply with the formalities prescribed by the lex situs. Consequently, under the lex situs the next of kin inherit the property on intestacy.120 Should the next of kin be allowed to take both the bequest and the land, or should they be put to their election? 38.52 Before the question of election can arise, a matter of construction of the will must be resolved. The court must be satisfied that the testator did intend to dispose in the will of the property in question. The doctrine of election can only arise in respect of the same deed or will. If a person makes two separate wills, one dealing with property in New South Wales and the other dealing with property in a foreign country, the question of election cannot arise, even though by reason of the failure of the foreign will a beneficiary under the New South Wales will now also inherit the foreign property. Furthermore, where English or English-derived law is the law which governs the construction of the will, there was a presumption at common law that the testator, in using general words of disposition, such as ‘I give and bequeath all my real and personal estate wherever situated’ intended to dispose only of property capable of passing under the will.121 In the words of Younger J in Re Ogilvie,122 the court must be satisfied as a matter of construction of the will that the testator has ‘so far as words are concerned’ actually disposed of the foreign property. In addition, the gift of the foreign land must be one that would have been valid by the law of the testator’s domicile at the time of death if the land had been situated in that domicile,123 and, of course, the gift must be invalid by the lex situs of the land. 38.53 What law determines whether the doctrine of election applies? This depends on whether one regards the application of the doctrine as part of the process of construction which is governed by the law intended by the testator, or as a separate substantive aspect of the law relating to testamentary dispositions, for which the appropriate choice of law rule is the law of the domicile of the testator at the time of death. In Re Allen’s Estate,124 Cohen J took the view that it was a matter of construing the will. In that case the testator, who died domiciled in South Africa, had made a will in England whereby he appointed an English solicitor, and his widow, to be the executors and trustees of his will. After making certain dispositions in favour of his

[page 872] widow, he directed that the residue of his property be held by his trustees upon trust for his widow for life and after her death for the benefit of a third party absolutely. It was established that under the law of South Africa the widow was entitled to a one-half share in the joint property of the spouses. The question then arose whether she should be put to her election between the community property rights and the rights given her under the will. The learned judge took the view that the question of whether the doctrine of election applied was one of the construction of the will. Though the testator died domiciled in South Africa, he held that the testator clearly intended the will to be construed according to English law. Thus, the English doctrine of election applied and the widow was put to her choice. The decision has been severely criticised,125 yet the classification of the judge was not so very eccentric. We have seen earlier126 that the term ‘construction’ in the context of wills is given a considerably wider meaning than is normally understood by that term and includes questions which arise where the testator’s intention has been frustrated by events which he or she could not have had in contemplation. The circumstances which give rise to the election fall within that category. Again looked at from another angle, there is much to be said for a greater flexibility in the law applicable to wills. A testator’s intention is more likely to accord with the law of the country where he or she has obtained legal advice and made the will. 38.54 Unfortunately, the trend of authority is against the view of Cohen J. In Re Ogilvie,127 a case not referred to by Cohen J, Younger J held, after considering earlier decisions, that ‘the question whether in any particular case … a case of election is or is not rebuttable depends upon the domicile of the testator at death — for it is the law of that domicile which governs it’. Since the decision in Re Allen’s Estate, Buckley J in Re Mengel’s Will Trusts128 has criticised the reasoning of Cohen J by saying that ‘the doctrine of election has nothing to do with intention, and consequently nothing to do with construction of the will’. 38.55 Mention must be made of one anomalous exception. As Younger J points out in Re Ogilvie,129 English courts have traditionally shown a special tenderness to the heir at law of English real estate. If by reason of any defect of form or of substance a will of English realty was ineffective and in consequence the realty passed to the heir at law, that person would not be put to his election even

though under a valid disposition in the same will he was entitled to receive other benefits as well.130 Because it is anomalous, the exception will probably be confined to the heir at law as that term was understood at common law and not extended in favour of the next of kin who now take the realty and personalty of the deceased upon intestacy. 38.56 A difficulty may arise where the gift of land situated abroad fails because the gift infringes the substantive law of succession of the lex situs; for example, by [page 873] ignoring the obligatory legitimate portion to which the next of kin are entitled by that law. This is in itself no objection to the application of the doctrine of election. Provided the gift of land is one which the testator could validly have made by the law of the domicile the heir will be put to election. If the heir elects to take the valid bequest of the movables, the court will expect him or her to convey the foreign land to the devisee of the will.131 38.57 The position is otherwise, however, if under the lex situs of the land a conveyance to the devisee on the terms and conditions envisaged by the testator is impossible. Since equity will never command the impossible, the foreign heir will not in such a case be put to election. Thus, if a testator devises foreign land upon trust and by the lex situs the creation of trusts is not permitted, the court cannot put the foreign heir to election for the heir cannot be required to do something in the situs which the law of the situs prevents him or her from doing; that is to say, convey to the trustee upon the trusts declared in the will.132

Powers of Appointment 38.58 A power of appointment exists where a testator, in the case of a will, or the settlor, in the case of a settlement inter vivos, provides in such instrument that some person nominated by him or her shall have the power to designate the person or persons to whom the property which is the subject of the bequest or settlement will ultimately descend. Thus, a testator, X, may by will bequeath a sum of money to trustees to pay the income thereof to Y for life and after Y’s death transfer the capital to such person or persons as Y may by his or her will appoint. Of course, a power of appointment need not necessarily be exercisable

by will; in appropriate circumstances the donee may be authorised to exercise the power by deed. But in the discussion that follows we are only concerned with the exercise of a power of appointment by will. In the example given above we would refer to X, the testator and creator of the power, as the donor of the power and we would refer to Y as the donee of the power. 38.59 A power of appointment can be either general or special. A general power of appointment exists where, as in the example given above, the donee of the power is authorised to appoint any person including the donee. A special power of appointment exists where the donee of the power is only authorised to appoint a member or members of a particular class designated by the donor.133 Thus, a special power would have arisen if in the example given earlier, the testator had specified that after Y’s death the property should go to such of Z’s issue as Y may by will appoint. 38.60 It is clear that in the exercise of a power of appointment two instruments are involved; namely, the instrument whereby the power was created, which we will [page 874] hereafter refer to as the original instrument, and the instrument whereby the power is exercised. A testator domiciled in New South Wales may by will confer a power of appointment on a person domiciled in France. The donee exercises that power in his or her will. According to the principles discussed earlier, the donor’s will is in most respects governed by the law of New South Wales, while the donee’s will is in most respects governed by the law of France. In case of conflict, which prevails? The answer to this question largely depends on whether one regards the exercise of a power of appointment as a disposition of a property right belonging to the donee or as merely the exercise of a subsidiary power conferred by the original instrument. In the former case it is clear that the will exercising the power must be a valid disposition in its own right, while if the latter view prevails it is more important that the exercise of the power complies with the law governing the original instrument. 38.61 In a technical sense it is undoubtedly correct to say that the exercise of a power of appointment, whether general or special, is not the exercise of a

property right of the donee. But in the main the courts have looked at the reality of the situation rather than its form. In doing so they have drawn a distinction between special and general powers. So far as special powers are concerned, there can be little doubt that such a power operates only as a nomination of a person whose name is to be inserted into the original instrument. The donee cannot be regarded, therefore, in theory or in substance, as disposing of his or her own property in the exercise of such a power and for that reason the law governing the original instrument must remain dominant.134 The effect of the exercise of a general power of appointment is different, however. In our domestic law, if the power is not exercised, the property remains that of the donor and in default of appointment goes to the persons nominated by the donor in such event. But if the donee exercises the appointment in such a way as to treat it as part of the general mass of his or her property, the property which is the subject of the power is treated as part of the donee’s estate for all purposes, including the payment of debts or intestate succession. Consequently, it is not surprising that the English Court of Appeal held in Re Pryce135 that the exercise of a general power of appointment is, in effect, the disposition of property of the donee of the power. If this is so, then the will in which the power is exercised must be valid and effective under its own applicable law to dispose of the property which is the subject of the power. 38.62 The validity of this reasoning of the Court of Appeal was questioned by Danckwerts J in Re Waite’s Settlement Trusts.136 In that case his Lordship took the view that a power of appointment, whether general or special, was not in any event a power of disposition of the donee’s own property but a right entirely derived from the operation of the original instrument creating the power and for that reason governed exclusively by the proper law of that original instrument. [page 875] 38.63 The doubts raised by Danckwerts J must now be regarded as a momentary aberration. For in Re Khan’s Settlement Trusts,137 Russell LJ could not discover any weakening in the authority of the Court of Appeal in Re Pryce and was for that reason unable to follow the decision in Re Waite’s Settlement Trusts.138

Capacity 38.64 Accepting the premise that the exercise of a general power of appointment must be equated to a disposition of the donee’s own property, it follows that the question of the donee’s capacity to make such an appointment by will is indistinguishable from the question of capacity to make the will itself and is governed by the same law.139 In Re Lewal’s Settlement Trusts,140 the donee of a general power of appointment under an English settlement was domiciled in France. At the age of 19 she made a will, which was construed as an exercise of her power of appointment. Being a minor she would have lacked testamentary capacity under English law. Under French law, however, she had a limited testamentary capacity which allowed her to dispose of one half of her estate. Petersen J applied French law as the law of her domicile, and held that she had effectively exercised the power of appointment as to one half of the property that was the subject of the power. Although Re Lewal’s Settlement Trusts was criticised by Danckwerts J in Re Waite’s Settlement Trusts141 there is general agreement among textwriters on this proposition.142 38.65 Special powers of appointment, on the other hand, are essentially part of the instrument that created them. It follows therefore, that primarily, capacity to exercise such a power should depend on the proper law of the original instrument, no matter what the domicile of the donee or, in the case of immovables, the situs of the property.143 Indeed, it can be argued that the fact that the donee of a special power has capacity to make the will in which that power is exercised under the law of his or her domicile is irrelevant.144Yet it seems unlikely that our courts would take such a rigid view. It is therefore suggested that capacity to exercise a special power of appointment can be sustained by reference either to the proper law of the original instrument or the law which determines the capacity of the donee to make the will in which the power is exercised.145 [page 876]

Formal validity 38.66 As early as 1865 it was laid down by Lord Romilly MR in D’Huart v Harkness146 that where under the terms of an instrument governed by English law a power of appointment is exercisable by will, the term ‘will’ does not relate

merely to an instrument which complies with the purely local provisions of the Wills Act 1837 (United Kingdom), but embraces any document admissible to probate in England. Thus, a will relating to movables and executed by a foreigner in accordance with the forms prescribed by the law of the domicile is a valid exercise of a power of appointment, be it general or special, even though it does not comply with the domestic requirements of the forum.147 38.67 There was some doubt whether the principle in D’Huart v Harkness applied to the alternate options by which wills could be admitted to probate, at first under Lord Kingsdown’s Act 1863 and today under the provisions of the Hague Convention.148 However, in Re Wilkinson’s Settlement149 Sargant J expressed the view that the principle in D’Huart v Harkness could not tolerate any exception; if English law recognises a document as a will by admitting it to probate, it should recognise the document as a will for the purpose of exercising a power of appointment. Although the remark was obiter, there is no doubt that this is the correct principle and consequently a power of appointment is properly executed as to form by any will which is admissible to probate under the Hague Convention.150 38.68 The legislation in each Australian jurisdiction now expressly provides that a will, in so far as it exercises a power of appointment, shall be treated as properly executed if the execution of the will conformed to the law governing the original instrument.151 38.69 A difficulty may arise where the original instrument creating the power also prescribes any formalities that must be observed in exercising the power. Thus, the donor of a power may stipulate that the appointment is to be executed in the presence of more than two witnesses. The Australian legislation based on the Wills Act 1837 (United Kingdom) s 10152 expressly provides that a will executed in conformity with the Act shall be a good exercise of the power notwithstanding the fact that additional formalities have been prescribed. Thus, if the will is executed in conformity with the Wills Act of the forum, there is no need to consider any further requirement set out in the original instrument. However, where the will is not executed in conformity with the Wills Act of the forum and its validity depends upon foreign law, such as a will executed by a foreigner [page 877]

in conformity with the law of the domicile, it has been held that the statutory saving clause cannot apply and the document must not only be admissible to probate but also comply with any requirements laid down in the original instrument.153 It is now provided by statute in most jurisdictions that a will, so far as it exercises a power of appointment, shall not be treated as improperly executed by reason only that its execution was not in accordance with the formal requirements contained in the instrument creating the power.154 In South Australia and Western Australia, the legislation contains the similar but converse proposition that a will is to be regarded as being properly executed so far as it exercises a power of appointment if the execution of the will conformed to the law governing the essential validity of the power.155

Construction 38.70 It seems now accepted that as a general rule the exercise of a power of appointment, whether general or special, by will is to be construed by the law that governs the construction of the will as a whole.156 Prima facie that is the law of the domicile of the donee at the time of making the will.157 Authority for this proposition is found in the case of Re McMorran, dec’d.158 In that case a special power of appointment had been created by an instrument governed by English law. The donee who was domiciled in Scotland, made a will in Scottish form containing terms that were sufficient in Scottish law to exercise the power but which were insufficient under English law. Harman J construed the will according to Scottish law, saying: This particular will contains a number of terms of art only to be understood by reference to the Scottish law, and I think the general principle must still apply that in questions of construction, as opposed to questions of validity and capacity, the English court must find the true meaning of the appointor of the words he has used in the frame in which he has used them.159

If this is true of the exercise of the special power of appointment, then a fortiori it must be true of the exercise of a general power of appointment.160 38.71 There is, of course, the preliminary problem of determining whether a will purports to exercise a power of appointment or not. In Australia it has been enacted on the lines of s 27 of the Wills Act 1837 (United Kingdom) that general words of devise or bequest in a will, such as ‘a gift of all my property’, are prima facie sufficient to exercise that power.161 In Re McMorran, as we have seen, Scottish law

[page 878] as the law of the donee’s domicile was applied to determine whether the donee had exercised a special power of appointment. This sensible decision sits somewhat awkwardly with an earlier line of decisions which held that s 27 of the Wills Act 1837 (United Kingdom) applied to all wills made by donees whether governed by English law or not.162 This would mean that the question of whether a general power has been exercised would be submitted to the law of the forum, at least where this was also the law by which the original instrument is to be construed, but the question of whether a special power has been exercised would be left to the law by which the donee’s will is to be construed. This is an illogical inversion of the general principle.163 The explanation for this illogicality is that English judges have been anxious to find that a power has been exercised. This is particularly true where the donee is domiciled in a country where powers of appointment are unknown, as happened in most cases where s 27 of the Wills Act 1837 (United Kingdom) was applied. The solution to the problem may well lie in the formulation of a rule according to which a power of appointment will be held to have been exercised if the words used by the donee are sufficient for the purpose either under the law governing the construction of the original instrument or under the law by which the donee’s own will is to be construed.164

Essential validity 38.72 Here we must go back to basic principles. The essential validity of the exercise of a general power of appointment, being equivalent to a disposition of the donee’s own property, is determined by the law that governs the essential validity of the donee’s will.165 This is the effect of the decision of the Court of Appeal in Re Pryce.166 In that case the donor had by a will governed by English law given his daughter a general power of appointment. The daughter, who died domiciled in the Netherlands, by her will appointed her husband as her sole heir in so far as the law in force at her death should allow her to dispose in his favour. By Dutch law this was seven-eighths of her estate, one eighth being the legitimate portion to which her mother was entitled. By English law she could dispose of the whole of her estate as she pleased. The court, acting on the principle stated above, held that her power to appoint could be neither more nor less than her power to dispose of her own property. Therefore, she could only

appoint her husband to seven eighths of the property. 38.73 The authority of Re Pryce was doubted by Danckwerts J in Re Waite’s Settlement Trusts.167 In that case a general power of appointment created by an English instrument had been exercised by a donee domiciled in Guernsey. Under the law of Guernsey she could only dispose of one half of her personal estate. Following [page 879] Re Pryce it was argued that she should be similarly limited in the exercise of the power of appointment. However, Danckwerts J said: The power of disposition being wholly derived from the operation of instruments regulated by the law of England, I find it difficult to see why the ability to dispose of the appointed property is not wholly regulated by the rules of English law …168

38.74 In Re Khan’s Settlement Trusts169 a general power was created by a document governed by English law. The donee of the power was a Muslim domiciled in India. His capacity to dispose of his property was limited by the law of India applicable to Muslims and the question arose whether in the exercise of his power the restrictions of Muslim law should be applied. Russell LJ held that they should. He could not accept that Re Pryce could be explained on its own particular facts or that its authority had in any way been weakened since. Accordingly he refused to follow Re Waite’s Settlement Trusts. In so doing he has had the support of Dicey, Morris & Collins.170 38.75 As regards the essential validity of the exercise of a special power, this is clearly governed by the proper law of the original instrument. In Pouey v Hordern,171 the donee of a special power created by an English instrument was domiciled in France. Under the law of France the donee could only dispose of one quarter of the property. It was held that English law, the law governing the original instrument, prevailed and the appointment was effective as to the whole of the property involved.

Revocation 38.76 The question of whether the exercise of a power of appointment by will has been revoked depends on the efficacy of the revoking instrument.172 Thus,

the same rules apply as apply to the revocation of wills generally.173 _________________________ 1.

The Australian Law Reform Commission in Report No 58, Choice of Law, 1992, paras [9.7]–[9.9] recommended that a single rule based on the law of the deceased’s last domicile be applied to both movable and immovable property. Cf. Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons 1989, art 3, which contains the single rule that succession is governed by the law of the country in which the deceased was habitually resident at the time of death. The Convention has not yet entered into force: only one country (the Netherlands) has ratified it.

2.

Bremer v Freeman (1857) 10 MooPC 306.

3.

Enohin v Wylie (1862) 10 HLC 1; re Baldry (deceased) [2004] WTLR 609 (Fam).

4.

Doglioni v Cripsin (1866) LR 1 HL 301; Re Trufort (1887) 36 ChD 600; Re Ross [1930] 1 Ch 377. See Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Thomson Sweet & Maxwell, London, 2012, rule 146 [27R-001]-[27-002].

5.

Enohin v Wylie (1862) 10 HLC 1; Doglioni v Cripsin (1866) LR 1 HL 301; Re Trufort (1887) 36 ChD 600; Al-Bassam v Al-Bassam [2004] EWCA Civ 857 at [25]-[27]. See Dicey, Morris & Collins (2012), rules 147 and 148 [27R-004]-[27-008].

6.

(1744) Amb 25; 27 ER 14.

7.

Bremer v Freeman (1857) 10 Moo PC 306 at 358; 14 ER 508 at 527.

8.

Haque v Haque (No 1) (1962) 108 CLR 230 at 249. But see now Marriage Act 1961 (Cth) s 88F and 15.29 above.

9.

[1954] P 223.

10. Re Musurus [1936] 2 All ER 1666. 11. Re Ralston [1906] VLR 689. 12. Re Collens [1986] Ch 505. 13. Re Fon Hock (1911) 7 Tas LR 25. 14. Ehrenzweig, Treatise on the Conflict of Laws, West, New York, 1962, p 667. 15. [1968] P 675 at 696. 16. See Dicey, Morris & Collins (2012), pp 1418–1420. 17. Although Graveson argues in ‘The Fuld Case’ (1966) 15 ICLQ 937 at 944–5 that Scarman J decided the point in favour of the time of making the will by inference in The Estate of Fuld (No 3) [1968] P 675 at 696. 18. Graveson, Conflict of Laws, 7th ed, Sweet & Maxwell, London, 1974, p 486. See also Sykes and Pryles, Australian Private International Law, 3rd ed, Law Book Co, Sydney, 1991, p 753. 19. Re Hernando; Hernando v Sawtell (1884) 27 Ch D 284; Bank of Africa v Cohen [1909] 2 Ch 129 (CA); In the matter of P [2009] EWHC 163 (Ch); [2010] Ch 33 at [32]-[34]. 20. (1866) LR 2 Eq 363. 21. Re Lee Hing’s Will (1901) 1 SR (NSW) Eq 199. 22. Municipality of Canterbury v Wyburn [1895] AC 89. 23. In the Will of Lambe [1972] 2 NSWLR 273. 24. In the Estate of D’Orgeval (1920) 41 ALT 174; In the Goods of Rolland (1893) 14 LR (NSW) B & P

102. 25. In the Will of Lambe [1972] 2 NSWLR 273. 26. In the Estate of Slavinskyj (dec’d) (1988) 53 SASR 221. Cf.Wills Act 1968 (ACT) s 11A; Succession Act 2006 (NSW) s 8; Wills Act 2000 (NT) s 10; Succession Act 1981 (Qld) s 18; Wills Act 1936 (SA) s 12(2); Wills Act 2008 (Tas) s 10; Wills Act 1997 (Vic) s 9(1); Wills Act 1970 (WA) s 32. 27. Re Harry (1996) 106 NTR 1. 28. Pepin v Bruyere [1902] 1 Ch 24. 29. In the Will of Lambe [1972] 2 NSWLR 273. 30. Wills Act 1968 (ACT) Pt 2A; Succession Act 2006 (NSW) Pt 2.4; Wills Act 2000 (NT) Pt 5; Succession Act 1981 (Qld) Pt 2 Div 6; Wills Act 1936 (SA) Pt 3; Wills Act 2008 (Tas) Pt 5; Wills Act 1997 (Vic) Pt 2 Div 6; Wills Act 1970 (WA) Pt VII. 31. Wills Act 1968 (ACT) s 15C; Succession Act 2006 (NSW) s 48(1); Wills Act 2000 (NT) s 46(1); Succession Act 1981 (Qld) s 33T(1); Wills Act 1936 (SA) s 25B; Wills Act 2008 (Tas) s 60(1); Wills Act 1997 (Vic) s 17(1); Wills Act 1970 (WA) s 20(1). 32. Re Harry (1996) 106 NTR 1. 33. Re Wynn [1983] 3 All ER 310. 34. Wills Act 1968 (ACT) s 15A; Succession Act 1981 (Qld) s 5; Wills Act 1936 (SA) s 25A(1); Wills Act 1970 (WA) s 4. 35. Wills Act 1968 (ACT) s 15D(1)(a); Succession Act 2006 (NSW) s 48(2)(a); Wills Act 2000 (NT) s 46(2); Succession Act 1981 (Qld) s 33T(2)(a); Wills Act 1936 (SA) s 25C(1)(a); Wills Act 2008 (Tas) s 60(2)(a); Wills Act 1997 (Vic) s 17(2)(a); Wills Act 1970 (WA) s 20(2)(a). 36. Wills Act 1968 (ACT) s 15D(1)(b); Succession Act 2006 (NSW) s 48(2)(b); Wills Act 2000 (NT) s 46(3); Succession Act 1981 (Qld) s 33T(2)(b); Wills Act 1936 (SA) s 25C(1)(b); Wills Act 2008 (Tas) s 60(2)(b); Wills Act 1997 (Vic) s 17(2)(b); Wills Act 1970 (WA) s 20(2)(b). 37. Wills Act 1968 (ACT) s 15A; Succession Act 2006 (NSW) s 47; Wills Act 2000 (NT) s 45; Succession Act 1981 (Qld) s 5; Wills Act 1936 (SA) s 25A(1); Wills Act 2008 (Tas) s 4; Wills Act 1970 (WA) s 4. There is no equivalent provision in Victoria. 38. Wills Act 1968 (ACT) s 15B; Succession Act 2006 (NSW) s 49; Wills Act 2000 (NT) s 47; Succession Act 1981 (Qld) s 33U; Wills Act 1936 (SA) s 25A(2); Wills Act 2008 (Tas) s 61; Wills Act 1997 (Vic) s 18; Wills Act 1970 (WA) s 21(1). 39. See, for example, Re O’Keefe [1940] Ch 124. 40. Wills Act 1968 (ACT) s 15E(1); Succession Act 2006 (NSW) s 50(1); Wills Act 2000 (NT) s 48(1); Succession Act 1981 (Qld) s 33V(1); Wills Act 1936 (SA) s 25A(3); Wills Act 2008 (Tas) s 62(1); Wills Act 1997 (Vic) s 19(1); Wills Act 1970 (WA) s 21(2). 41. Wills Act 1968 (ACT) s 15F; Succession Act 2006 (NSW) s 50(2); Wills Act 2000 (NT) s 48(2); Succession Act 1981 (Qld) s 33W; Wills Act 1936 (SA) s 25A(5); Wills Act 2008 (Tas) s 62(2); Wills Act 1997 (Vic) s 19(2); Wills Act 1970 (WA) s 21(3). 42. Permanent Trustee Co of New South Wales v Pym [1938] 38 SR (NSW) 1. 43. Re Ferguson’s Will [1902] 1 Ch 483. 44. Re Cunnington [1924] 1 Ch 68. Compare Re Blyth [1997] 2 Qd R 567, where Thomas J held that all questions about the validity of the dispositions made by a will, and their effect, including how to handle the question of predeceased beneficiaries, were to be governed by the law of the deceased’s domicile at the time of death.

45. [1990] Ch 118. 46. See note 45 above, at 134. 47. Re Lungley [1965] SASR 313; Re Blyth [1997] 2 Qd R 567. 48. Wills Act 1968 (ACT) s 15G; Succession Act 2006 (NSW) s 33; Wills Act 2000 (NT) s 32; Succession Act 1981 (Qld) s 33D; Wills Act 1936 (SA) s 23; Wills Act 2008 (Tas) s 47; Wills Act 1997 (Vic) s 37; Wills Act 1970 (WA) s 24. 49. This proposition was approved, obiter, in Saliba v Falzon, (SC (NSW), Young J, 1 July 1998, unreported). 50. Re Lungley [1965] SASR 313. 51. Re Cunnington [1924] 1 Ch 68. 52. (1988) 49 SASR 236. 53. See note 52 above, at 243–4. 54. [1961] AC 727 at 761. 55. [1949] NZLR 742. 56. Public Trustee v Vodjdani (1988) 49 SASR 236. 57. Pain v Holt (1919) 19 SR (NSW) 105. 58. In the Estate of Fuld dec’d (No 3) [1968] P 675 at 697. 59. Re Priest [1944] Ch 58. 60. Municipality of Canterbury v Wyburn [1895] AC 89. 61. Freke v Lord Carbery (1873) LR 16 Eq 461. 62. MacDonald v MacDonald (1872) LR 14 Eq 60; Re Blyth [1997] 2 Qd R 567. 63. [1997] 2 Qd R 567. 64. [1915] 1 Ch 572. 65. Wills Act 1936 (SA) s 23. 66. [1904] P 269. 67. Wills Act 1968 (ACT) s 15G; Succession Act 2006 (NSW) s 33; Wills Act 2000 (NT) s 32; Succession Act 1981 (Qld) s 33D; Wills Act 2008 (Tas) s 47; Wills Act 1997 (Vic) s 37; Wills Act 1970 (WA) s 24. 68. Re Barker [1995] 2 VR 439 at 442–3 per Tadgell J. 69. 64 NYS 2d 453 (1947). 70. [1995] 2 VR 439. 71. There was a similar result in Re Ulvstig [2000] QSC 66, where the Supreme Court of Queensland granted probate of an Australian will despite the existence of a later Swedish will, written in Swedish. The later will contained no revocation clause and had been made only two days after the Australian will, so it was fairly clear that the testator’s intention was to have the Australian will govern Australian assets and the Swedish will govern Swedish assets. 72. (2004) 90 SASR 119. 73. See note 72 above, at [22] per Besanko J. 74. [2008] NSWSC 1331. 75. See note 74 above, at [6] per Sackville AJ.

76. [1924] 1 DLR 1062. 77. See, for trenchant and deserved criticism of such a result, Cohn,‘The Form of Wills of Immovables’ (1956) 5 ICLQ 395. 78. As to these, see 38.14–38.20 above. 79. Wills Act 1968 (ACT) s 15C; Succession Act 2006 (NSW) s 48(1); Wills Act 2000 (NT) s 46(1); Succession Act 1981 (Qld) s 33T(1); Wills Act 1936 (SA) s 25B; Wills Act 2008 (Tas) s 60(1); Wills Act 1997 (Vic) s 17(1); Wills Act 1970 (WA) s 20(1). 80. Wills Act 1968 (ACT) s 15D(1)(c); Succession Act 2006 (NSW) s 48(2)(c); Wills Act 2000 (NT) s 46(4); Succession Act 1981 (Qld) s 33T(2)(d); Wills Act 1936 (SA) s 25C(c); Wills Act 2008 (Tas) s 60(2)(c); Wills Act 1997 (Vic) s 17(2)(c); Wills Act 1970 (WA) s 20(2)(c). 81. Velasco v Coney [1934] P 143. 82. Re Howard [1924] 1 DLR 1062 at 1064. 83. Wills Act 1968 (ACT) s 15G; Succession Act 2006 (NSW) s 33; Wills Act 2000 (NT) s 32; Succession Act 1981 (Qld) s 33D; Wills Act 1936 (SA) s 23; Wills Act 2008 (Tas) s 47; Wills Act 1997 (Vic) s 37; Wills Act 1970 (WA) s 24. 84. Wills Act 1936 (SA) s 23. 85. See In the Estate of Groos [1904] P 269 at 272–3 per Gorell Barnes J and the note by Little,‘Section 3 of Lord Kingsdown’s Act and the Revocation of Wills’ (1956) 5 ICLQ 118. 86. Wills Act 1968 (ACT) s 20; Succession Act 2006 (NSW) s 12; Wills Act 2000 (NT) s 14; Succession Act 1981 (Qld) s 14; Wills Act 1936 (SA) s 20; Wills Act 2008 (Tas) s 16; Wills Act 1997 (Vic) s 13; Wills Act 1970 (WA) s 14. 87. Civil Unions Act 2012 (ACT). 88. Succession Act 1981 (Qld) s 14A(1). 89. Relationships Act 2003 (Tas) Pt 2. 90. Wills Act 1968 (ACT) s 20A; Succession Act 2006 (NSW) s 13; Wills Act 2000 (NT) s 15; Succession Act 1981 (Qld) s 15; Wills Act 1936 (SA) s 20A; Wills Act 2008 (Tas) s 17; Wills Act 1997 (Vic) s 13(4); Wills Act 1970 (WA) s 14A. 91. This has been recommended by the Australian Law Reform Commission, Report No 58, Choice of Law, para [9.26]. 92. [1904] P 269. 93. Family Provision Act 1969 (ACT); Succession Act 2006 (NSW) Ch 6; Family Provision Act 1970 (NT); Succession Act 1981 (Qld) Pt 4; Inheritance (Family Provision) Act 1972 (SA); Testator’s Family Maintenance Act 1912 (Tas); Administration and Probate Act 1958 (Vic); Inheritance (Family and Dependants’ Provision) Act 1972 (WA). 94. Family Provision Act 1969 (ACT) s 8(1); Succession Act 2006 (NSW) s 59; Family Provision Act 1970 (NT) s 8(1); Succession Act 1981 (Qld) s 41; Inheritance (Family Provision) Act 1972 (SA) s 7(1); Testator’s Family Maintenance Act 1912 (Tas) s 3; Administration and Probate Act 1958 (Vic) s 91; Family Provision Act 1972 (WA) s 6(1). 95. Pain v Holt (1919) 19 SR (NSW) 105; Re Butchart [1932] NZLR 125; Heuston v Barber (1990) 19 NSWLR 354 at 360; Hitchcock v Pratt [2010] NSWSC 1508; (2010) 79 NSWLR 687. 96. [1950] VLR 462 at 465. 97. Pain v Holt (1919) 19 SR (NSW) 105; Re Terry (dec’d) [1951] NZLR 30. 98. Re Sellar (1925) 25 SR (NSW) 540; Re Butchart [1932] NZLR 125 at 131.

99. Pain v Holt (1919) 19 SR (NSW) 105; Re Donnelly (1927) 28 SR (NSW) 34; Re Osborne [1928] St R Qd 129; Re Butchart [1932] NZLR 125; Heuston v Barber (1990) 19 NSWLR 354; Shaw v Blanchett [2006] VSC 295. 100. Succession Act 2006 (NSW) s 64. 101. (1994) 35 NSWLR 51. 102. Family Provision Act 1982 (NSW) s 11(1)(b). 103. (1994) 35 NSWLR 51 at 56. 104. Having considered the Law Reform Commission Report which preceded the 1989 amendment [NSWLRC 63, Jurisdiction of Local Courts Over Foreign Land (1988)] and the Second Reading Speech [NSW Parliamentary Debates, Legislative Assembly, 14 November 1989, p 12278, pp 12280– 81]. 105. (1994) 35 NSWLR 51 at 60–61. 106. The report of the National Committee for Uniform Succession Laws to the Standing Committee of Attorneys General on Family Provision recommended that the model family provision legislation include a provision to the same effect [QLRC MP28, December 1997, p 114]. In the Supplementary Report [QLRC 58, July 2004], the model legislation included such a provision as clause 15, without comment. The report of the NSW Law Reform Commission simply commented that clause 15 was based on the earlier equivalent in the Family Provision Act 1982 [NSWLRC 110: Uniform Succession Laws: Family Provision (May 2005), para 2.72]. The Attorney General’s Second Reading Speech upon the Succession Amendment (Family Provision) Bill 2008 (26 June 2008)—which repealed the Family Provision Act and inserted part 3 into the Succession Act—did not comment on this provision. 107. [2010] NSWSC 1508; (2010) 79 NSWLR 687. 108. Hitchcock v Pratt [2010] NSWSC 1508; (2010) 79 NSWLR 687 at [7]-[19]. 109. [2009] NSWSC 801. 110. See note 109 above, at [26] per Brereton J. 111. Succession Act 2006 (NSW) s 65 (formerly Family Provision Act 1982 (NSW) s 11(1)(b)). 112. Hitchcock v Pratt [2010] NSWSC 1508; (2010) 79 NSWLR 687 at [20]. 113. [1994] ACL Rep 395 NSW 7. 114. Hitchcock v Pratt [2010] NSWSC 1508; (2010) 79 NSWLR 687. 115. Inheritance (Family Provision) Act 1972 (SA) s 7(1)(a). 116. Heuston v Barber (1990) 19 NSWLR 354. But it may be possible to gain jurisdiction by cross-vesting: see Sherrin v M J Sherrin Pty Ltd (SC (SA), Olsson J, 31 July 1992, unreported). 117. Re Roper (dec’d) [1927] NZLR 731; Re Perkins (1958) 58 SR (NSW) 1; and see also Re Carlaw [1966] 1 NSWR 148. 118. Re Paulin [1950] VLR 462 at 466–7 per Sholl J. For a criticism of these principles see Kelly, ‘Testator’s Family Maintenance and the Conflict of Laws’ (1967) 41 ALJ 382. 119. Thomas Jarman, A Treatise on Wills, 8th ed, Sweet & Maxwell, London, 1986, vol 1, p 545. 120. The same problem can, of course, also arise in the case of two immovables, one situated in the forum and the other in a different country. In that case the forum as the lex situs determines whether the doctrine of election is applicable: Dicey, Morris & Collins (2012), pp 1439–1440. 121. Trotter v Trotter (1828) 4 Bli (NS) 502; 5 ER 179. But see now the Australian legislation in n 148 below.

122. [1918] 1 Ch 492 at 502. 123. See note 122 above, at 498–500. 124. [1945] 2 All ER 264. 125. Dicey, Morris & Collins (2012), p 1439; Graveson (1974), pp 523–4. 126. See 38.21 above. 127. [1918] 1 Ch 492. 128. [1962] Ch 791. 129. [1918] 1 Ch 492 at 496. 130. Re De Virte [1915] 1 Ch 920. 131. Re Ogilvie [1918] 1 Ch 492. 132. Brown v Gregson [1920] AC 860. 133. See, for example, Re Blyth [1997] 2 Qd R 567. 134. Pouey v Hordern [1900] 1 Ch 492 at 494. 135. [1911] 2 Ch 286. 136. [1958] Ch 100. 137. [1966] Ch 567. 138. But see for a defence of Danckwerts J’s approach, though not all his reasoning, Fridman, ‘Choice of Law Governing the Testamentary Exercise of Powers of Appointment over Movables’ (1960) 9 ICLQ 1. 139. As to capacity to make a will, see 38.8–38.10 above. 140. [1918] 2 Ch 391. 141. [1958] Ch 100. 142. Dicey, Morris & Collins (2012), pp 1448-1449; Graveson (1974), pp 503–4. 143. See McMorran, dec’d [1958] Ch 624 at 634 per Harman J. 144. See Re Waite’s Settlement Trusts [1958] Ch 100 at 107 per Danckwerts J, approved by Harman J in Re McMorran dec’d [1958] Ch 624 at 633–4. 145. Fridman, ‘Choice of Law Governing the Testamentary Exercise of Powers of Appointment over Movables’ (1960) 9 ICLQ 1 at 11, goes further and proposes this rule in relation to the capacity to exercise any power of appointment, general or special. And indeed, why not? 146. (1865) 34 Beav 324; 55 ER 660. 147. As to the formal validity of wills, see 38.12–38.20 above. 148. Re Kirwan’s Trusts (1884) 25 Ch D 373. 149. [1917] 1 Ch 620. 150. As to which, see 38.14–38.20 above. 151. Wills Act 1968 (ACT) s 15D(2); Succession Act 2006 (NSW) s 48(3); Wills Act 2000 (NT) s 46(5); Succession Act 1981 (Qld) s 33T(2)(c); Wills Act 1936 (SA) s 25C(d); Wills Act 2008 (Tas) s 60(2)(d); Wills Act 1997 (Vic) s 17(2)(d); Wills Act 1970 (WA) s 20(2)(d). 152. Wills Act 1968 (ACT) s 11; Succession Act 2006 (NSW) s 6(5); Wills Act 2000 (NT) s 8(6); Succession Act 1981 (Qld) s 10(11), (12); Wills Act 1936 (SA) s 10; Wills Act 2008 (Tas) s 8(5); Wills

Act 1997 (Vic) s 7(4); Wills Act 1970 (WA) s 9. 153. Baretto v Young [1900] 2 Ch 339. 154. Wills Act 1968 (ACT) s 15D(2); Succession Act 2006 (NSW) s 48(3); Wills Act 2000 (NT) s 46(6); Succession Act 1981 (Qld) s 33T(3); Wills Act 2008 (Tas) s 60(3); Wills Act 1997 (Vic) s 17(3). 155. Wills Act 1936 (SA) s 25C(d); Wills Act 1970 (WA) s 20(2)(d). 156. See Dicey, Morris & Collins (2012), p 1451; Graveson (1974), pp 507, 508. 157. As to the law by which wills are construed, see 38.21–38.25 above. 158. [1958] Ch 624. 159. See note 158 above, at 634. 160. But for a contrary view, see Fridman ‘Choice of Law Governing the Testamentary Exercise of Powers of Appointment over Movables’ (1960) 9 ICLQ 1 at 14. 161. Wills Act 1968 (ACT) s 26; Succession Act 2006 (NSW) ss 36–37; Wills Act 2000 (NT) ss 35–36; Succession Act 1981 (Qld) ss 33I, 33J; Wills Act 1936 (SA) ss 29–31; Wills Act 2008 (Tas) ss 50–51; Wills Act 1997 (Vic) s 41; Wills Act 1970 (WA) s 26(c), (d). 162. Re Price [1900] 1 Ch 442; Re Wilkinson’s Settlement [1917] 1 Ch 620; Re Lewal’s Settlement [1918] 2 Ch 391; Re Waite’s Settlement Trusts [1958] Ch 100. 163. But see Fridman ‘Choice of Law Governing the Testamentary Exercise of Powers of Appointment over Movables’ (1960) 9 ICLQ 1 at 14. 164. But see contra the Scottish case of Dune’s Trustees v Osborne [1960] SC 444. 165. As to the law governing the essential validity see 38.26–38.29 above. 166. [1911] 2 Ch 286. 167. [1958] Ch 100. 168. See note 167 above, at 108. 169. [1966] Ch 567. 170. Dicey, Morris & Collins (2012), pp 1454-56; also Graveson (1974), p 506. 171. [1900] 1 Ch 492. 172. Velasco v Coney [1934] P 143. 173. As to these see 38.30–38.41 above.

[page 881]

PART IX

Arbitration Chapters 39

Choice of Law in Arbitration

[page 883]

Chapter 39

Choice of Law in Arbitration Introduction 39.1 In considering the validity and conduct of an arbitration, several laws may be relevant and interact with each other.1 If, as is the situation in most cases, the arbitration arises out of or in relation to a contract between the parties, the proper law of that underlying contract may be relevant as will the governing law of any non-contractual claims falling within the scope of the arbitration agreement.2 Next is the proper law of the arbitration agreement itself which usually, but not invariably, is part of the underlying contract. It may, however, be governed by a law other than the proper law of the underlying contract, the arbitration agreement being separable from the substantive contract in which it may be contained3 Then there is the proper law of the specific reference made pursuant to the arbitration agreement which will usually be the same law as that governing the arbitration agreement.4 Finally, there is the law that governs the procedural aspects of the arbitration.5

The Validity and Effect of the Arbitration Agreement 39.2 The question of whether there is an agreement between the parties to arbitrate at all is determined by the law of the forum, in so far as it is not a pure question [page 884]

of fact.6 If an arbitration agreement exists, issues such as the identification of the parties to it,7 the validity of that agreement, the obligations of the parties thereunder, the effect of non-compliance with any prescribed formalities, and the jurisdiction of the arbitral tribunal are governed by the proper law of the arbitration agreement.8 Where the arbitration agreement forms part of a wider contract, it will normally be assumed that the proper law of that contract is also the proper law of the arbitration agreement.9 However, the parties may expressly agree that the arbitration clause shall be governed by a different law10 and, in exceptional cases, the court may infer from the choice of a third country as the seat of the arbitral tribunal that the law of that country shall govern the arbitration agreement.11 In the case of an ad hoc arbitration agreement, the inference would normally be in favour of the law of the place of arbitration.12 In the case of a private law arbitration, the proper law should be a domestic legal system.13 39.3 The selection of a place as the seat of the arbitration may itself determine the proper law of the underlying contract if no law is expressly chosen. The selection of a tribunal as the only forum to which disputes arising out of the contract shall be submitted gives rise to a strong presumption that the law of the country in which that tribunal sits shall be the proper law of the contract.14 It was once thought that this presumption was virtually irresistible.15 However, the House of Lords held in Compagnie Tunisienne de Navigation SA v Compagnie d’Armement Maritime SA16 that the presumption in favour of the law of the selected forum, whilst a very strong one, can be rebutted where in the circumstances surrounding the contract [page 885] there is an overwhelming connection with a legal system other than that of the selected forum. Thus, in the Compagnie Tunisienne case a contract providing for arbitration in London was entered into in Paris between a French company and a Tunisian company providing for the carriage of oil between two Tunisian ports. The commercial law of Tunisia is based upon French law and the French language had been used in the negotiations between the parties. In those circumstances the House held unanimously that any inference to be drawn from the fact that arbitration was to take place in London was displaced by the overwhelmingly French character of the contract.

39.4 Where a reference to specific arbitrators has been made pursuant to an arbitration agreement and an issue arises which is specific to that reference, for example, whether an inability to act as arbitrator has frustrated the reference but not the agreement itself, it might be possible to speak of a proper law of that reference which will determine whether the parties are still under an obligation to continue with that reference.17 In Sumitomo Heavy Industries Ltd v Oil and Natural Gas Commission,18 Potter J (as he then was) referred to the ‘proper law of the reference’ as the law governing the contract which regulates the individual reference to arbitration, this being an agreement subsidiary to but separate from the arbitration agreement itself, coming into effect by the giving of a notice of arbitration from which point a new set of mutual obligations in relation to the conduct of the reference arise. The proper law of the reference will invariably be the same as the proper law of the arbitration agreement.19

The Substantive Rules to be Applied by the Tribunal 39.5 Where the arbitration arises out of a contract, the proper law of that contract determines the substantive law that the arbitrators are to apply in interpreting the contract and in determining the rights and liabilities of the parties. In Australia, the UNCITRAL Model Law on International Commercial Arbitration is given the force of law by the International Arbitration Act 1974 (Cth) s 16. Article 28(1) of the Model Law provides that the arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute. This will enable the parties to stipulate that different legal rules or systems shall apply to particular issues.20 In the absence of such a choice, the Model Law provides in Art 28(2) that the arbitral tribunal shall apply the law determined by the conflict-of-laws rules which it considers applicable. Whilst an arbitral tribunal sitting in Australia pursuant to the Model Law is most likely to [page 886] apply Australian conflicts rules with a strong presumption in favour of the Australian jurisdiction in which it has its seat, it has a discretion to apply another legal system or even ‘internationally accepted principles of law governing

contractual relations’.21 39.6 In the past it was thought that, so far as common law courts were concerned, the rights and liabilities of the parties had to be determined according to the rules of a distinct municipal system of law. Thus, in relation to international arbitrations which were subject to supervision by English courts, clauses which relieved the arbitral tribunal from applying strict rules of law, or authorised it to proceed ex aequo et bono or as amiables compositeurs were regarded as contrary to public policy and as such avoiding the arbitration agreement and any resulting award.22 This attitude has changed. The English Court of Appeal in Eagle Star Insurance Co Ltd v Yuval Insurance Co Ltd23 indicated acceptance of a clause which relieved the arbitral tribunal from applying strict rules of law. In Deutsche Schachtbau GmbH v Ras Al Khaimah National Oil Co,24 the English Court of Appeal held that a Swiss award in which the arbitrators had applied ‘internationally accepted principles of law governing contractual relations’ did not offend English public policy. The Commercial Arbitration Acts of the Australian states and territories25 and Art 28(3) of the Model Law permit the parties to an arbitration agreement to authorise the arbitral tribunal in writing to proceed ‘by reference to considerations of general justice and fairness’.

The Law Governing Procedure (the Curial Law) 39.7 The procedure whereby the arbitration is to be conducted, sometimes referred to as the curial law or the lex arbitri, is governed by the law selected by the parties.26 In the absence of such a choice, there is a strong presumption that the parties intend this to be the law of the place where the arbitration is held, unless some other country is more closely connected with the proceedings.27 If the place or ‘seat’ of arbitration is not stated in the agreement, the appropriate law may depend on the place where the arbitrator appointed pursuant to the agreement chooses to conduct the arbitration.28 Somewhat confusingly, whilst the ‘seat’ of the arbitration will usually be the physical place where the arbitration is heard, as it is a legal concept, it need not necessarily [page 887]

coincide with the physical place of the hearing of the arbitration. Thus, in Raguz v Sullivan,29 the legal seat of the arbitration was Switzerland although the arbitration was heard in New South Wales. 39.8 The curial law will govern the manner in which the reference is to be conducted, the procedural powers and duties of the arbitrators, questions of evidence and the determination of the proper law of the contract.30 The curial law also governs the question of the validity of the arbitral award, and challenges to it.31 The choice of a seat of arbitration (where a choice is made) has been said to be extremely important not only because it will be by that law and its conflict of laws principles that the proper law of both the substantive contract and the arbitration agreement will be determined, but also because that law will determine such matters as the degree of intervention by the supervising court in the arbitral process.32 The courts of the seat of the arbitration will have supervisory jurisdiction over the arbitration and arbitral process.33 This proposition carries the consequence that, absent exceptional circumstances, a court other than one of a state in which the seat of the arbitration is located should not act to restrain the arbitration. In A v B34 it was held that an agreement as to the seat of an arbitration was analogous to an exclusive jurisdiction clause such that any claim for a remedy going to the existence or scope of the arbitrator’s jurisdiction or as to the validity of any interim or final award should only be made in the courts of the place designated as the seat of the arbitration. This decision was subsequently approved by the English Court of Appeal.35 39.9 The parties cannot, however, avoid the effect of mandatory procedural rules of the law of the physical place of the arbitration by choosing a different law to govern the procedure of the arbitration. Thus, in American Diagnostica Inc v Gradipore Ltd,36 the parties agreed that their arbitration should be in New South Wales pursuant to the UNCITRAL Arbitration Rules. Giles CJ Comm D of the Supreme Court of New South Wales held that the provisions of the Commercial Arbitration Act 1984 (NSW) allowing for leave to appeal would apply compulsorily to the arbitration, even if the parties had purported to agree that the Act should not apply to the arbitration at all.37 39.10 In a private law arbitration, the procedural law must be ‘anchored’ in a domestic legal system,38 although English courts have been reluctant to interfere with arbitrations conducted under the auspices of international bodies, such as the International Chamber of Commerce.39 This can have the consequence that [page 888]

the law governing procedure and the law determining the substance of the dispute may differ. In Miller v Whitworth Street Estates Ltd,40 a contract entered into between an English company and a Scottish company provided that the Scottish company should carry out certain work at the English company’s factory in Scotland. The contract was in a standard form used by the English Branch of the Royal Institute of British Architects. It contained an arbitration clause which did not state a place of arbitration or the law which should govern its procedure. When a dispute did arise the President of the Institute in accordance with the arbitration clause appointed a Scottish architect as arbitrator. This arbitrator conducted the arbitration in Scotland in accordance with Scottish procedure. Points of law arose and the English company requested the arbitrator to state his award in the form of a special case for the decision of the English High Court. The arbitrator refused to do so on the ground that he was conducting a Scottish arbitration, which was not subject to judicial supervision under the law of Scotland. Although the House of Lords by majority held that the proper law of the agreement was English, it upheld the refusal of the arbitrator on the ground that the law governing the procedure of the arbitration was Scottish. The House approved the statement found in the 8th edition of Dicey & Morris41 that: … where the parties have failed to choose the law governing the arbitration proceedings, those proceedings must be considered, at any rate prima facie, as being governed by the law of the country in which the arbitration is held, on the ground that it is the law most closely connected with the proceedings.

39.11 The line between procedure and substance is not always easy to draw. In International Tank and Pipe SAK v Kuwait Aviation Fuelling Co KSC42 the English court characterised as substantive and therefore governed by the proper law of the agreement the question whether the period for lodging a claim in arbitration could be extended by the court under the Arbitration Act 1950 (United Kingdom). It seems strange that whilst the question of whether an arbitrator can be required to state a case for the opinion of the court should be a question of procedure,43 the granting of an extension of time should be held to be substantive. 39.12 It is now settled that an arbitrator proceeding under the law of the forum can give an award in foreign currency.44 39.13 The Model Law will apply to international commercial arbitrations if the place of arbitration is in Australia by operation of Art 1(2), unless the parties have stipulated that the dispute is to be settled otherwise than in accordance with the Model Law.45 The Model Law sets out a framework for the procedure to be followed with the details of the procedure to be agreed upon between the parties

or failing such agreement, to be determined by the arbitral tribunal.46 In the absence of agreement between the parties, the place of arbitration will be determined by [page 889] the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.47 This does not prevent the tribunal meeting at other places for specific purposes of the arbitration such as hearing witnesses, inspecting goods etc, presumably without thereby changing the law applicable to the proceedings.48 39.14 There is one unresolved problem: Art 11 lays down a procedure whereby, if the agreement does not specify the composition of the arbitral tribunal, then, with the assistance of the court of the place of arbitration an arbitral tribunal can be constituted. But if no place of arbitration has been stipulated the jurisdiction of the court cannot be invoked.49

Choice of Law in Sporting Arbitrations 39.15 There has, in recent years, been an explosion of sports-related arbitration as the business of international sport has become ever more professional and commercialised. Many sporting bodies and federations, as well as the organisers of national sporting events, choose to require as a condition of membership of the body, or entry to the particular tournament, competition or event, submission of disputes to the so-called Court of Arbitration for Sport (CAS),50 to be governed by the Code of Sports Related Arbitration (the Code) which is published by CAS.51 39.16 Rule 45 of the Code, headed ‘Law Applicable to the Merits’ and which applies in cases where disputes are determined in the first instance by CAS, relevantly provides that: The Panel shall decide the dispute according to the rules of law chosen by the parties or, in the absence of such a choice, according to Swiss law. The parties may authorize the Panel to decide ex aequo et bono.

Rule 58 of the Code, relating to appeals to CAS from decisions of sporting bodies, federations or other sporting organisations, provides that:

The Panel shall decide the dispute according to the applicable regulations and the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law, the application of which the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision.52

[page 890] 39.17 Both of these rules respect party autonomy and, as such, reflect an almost universal willingness on the part of the courts of mature legal systems to permit parties to choose the law which will govern their contractual relationship. By way of contrast to both Arts 45 and 58 of the Code, Art 17 of the CAS Arbitration Rules for the Olympic Games provides that: The Panel shall rule on the dispute pursuant to the Olympic Charter, the applicable regulations, general principles of law and the rules of law, the application of which it deems appropriate.

39.18 Rule 45 of the Code effects a default choice of law, namely Swiss law. In short, by agreeing to arbitration under the Code and in the absence of any other express choice of law in their contract, the parties indirectly choose Swiss law to govern their dispute. There is no resort, as there is under the common law by way of default mechanism, to the law which the parties might be taken to have chosen or to the law which has the closest and most real connection with the parties’ dispute.53 Rule 45 has been criticised54 in so far as it leads to the application of Swiss substantive law to be applied in the arbitration to determine the outcome of parties’ disputes in circumstances where neither party is Swiss or has any natural or necessary connection with Switzerland. Blackshaw, Siekmann and Soek observe that:55 The rule providing for Swiss law to govern failing a different choice was initially introduced for reasons of simplicity (there is no need to search for the law most commonly connected to the dispute) and of enforceability (one law as it knows what law will apply). Moreover, in the early days of the CAS, most arbitrators were Swiss lawyers most comfortable in applying Swiss law. Whatever the original merits of these considerations, they are not in tune with the evolution of the last two decades, which has made out of the CAS the International Sports Tribunal worldwide, which seeks to render truly transnational justice. In addition to the affiliation of practically all important IFs, this evolution was further boosted by the role which was assigned to the CAS by the World Anti-doping Code. Article 45 of the Code, with its parochial connotation, is not in line either with the pervasive trends in private international law, which consistently seek to submit a situation to the law with the closest connection. This is also generally in the law which corresponds to the parties’ legitimate expectations. Admittedly, one may object to it since CAS arbitration procedure is governed by Swiss law, the same may well be true for the merits of the dispute. Such an objection would be flawed. The application of Swiss international arbitration law to CAS arbitration is acceptable because such law

is in conformity with transnational standards and in all modern arbitration legislations. The same cannot be said for contract law, labour law, the law of corporations, associations etc. For these reasons, it is regretful [sic] that this rule was not modified with the recent amendment of the Code, when the restrictive provision for appeal arbitration was changed. It is hoped that it will be changed in a not too distant future.

39.19 It could be said, in support of r 45, that Swiss law has come to perform something akin to the role played by English law in international commercial [page 891] dispute resolution where, very frequently, parties with no connection to England will nominate English law (and jurisdiction) as a neutral form of law to govern any disputes arising from their contractual relationship. Nevertheless, at least in cases involving a sporting contract such as that between a football player and his or her club which, according to common law principles, would be governed by the law having the closest and most real connection to the contract in the absence of an express choice, the default operation of Swiss law may appear strange. This outcome was remarked upon by the arbitral tribunal in Ortega v FIFA56 whose members observed that: The Employment Contract contained no proper law clause. Given that it covered the relationship of Mr Ortega with the Club in Turkey, it was prima facie intended to be governed by the law of Turkey. It may seem peculiar that a parties’ dispute over a contract of employment, itself governed by the law of another jurisdiction, should be resolved by a CAS Tribunal (where the disputant parties have not chosen to specify what other law should be applied by CAS) according to Swiss substantive law, pursuant to art R45 of the Code. However, no party made any submissions in this respect. In any event, the various terms said by each to have been broken by the other, would, in the Panel’s view, be recognised by the law of Turkey (which we understand to have some historic affinity with Swiss law) as well as by the law of Switzerland and, indeed, of any jurisdiction of which we have knowledge.

39.20 An interesting example of the consequences of the operation of Swiss municipal law, in the absence of an expressly chosen different law to govern a parties’ dispute, is provided by the case of L v FINA.57 L, a swimmer, had tested positive in respect of the use of the substance Salbutamol. That was a substance which was not completely banned but the inhalation of which was explicitly permitted subject to prior notification to the relevant authorities. The FINA executive in June 1995 suspended the swimmer, a member of the Cypriot national team, for two years. An appeal to the FINA Bureau was lodged but rejected. The swimmer then appealed against that decision seeking to have it overturned and, in addition, seeking damages from FINA for breach of contract,

infringement on the swimmer’s personality and for loss of earnings due to the damage caused to his professional activity. The appeal had two dimensions regulated by different aspects of the Code; namely appeal arbitration proceedings with respect to the swimmer’s appeal against the Bureau and ordinary arbitration proceedings with respect to the swimmer’s claim for damages. The swimmer’s claim for an alleged breach by FINA of contractual duties owed towards him through the imposition of a sanction even though the swimmer had not committed a doping offence was rejected because, under Swiss law, the relationship between a federation and its members was not treated as contractual. The tribunal held that: If there is no particular contract between a federation and a (direct or indirect) member, the Swiss courts have consistently held that the rules of contractual liability would not apply if a member claims damages from the federation. Instead, only the rules on tort are applicable.

[page 892] The tribunal also rejected the claim in tort. The tribunal applied Art 42 of the Swiss Code of Obligations permitting a judge to determine damage if the plaintiff is unable to claim an exact amount, but noted that that Article did not permit the judge to award compensation if no damage or the prerequisites for damage had been established. The tribunal also rejected, as unavailable under Swiss law, the claim for moral damages resulting from infringement of one’s personality, noting that these were only awarded for grave and lasting infringements. 39.21 A later case58 involved a dispute between Fulham Football Club and Olympique Lyonnais SASP. The executive committee of FIFA had issued a decision ordering Fulham to pay 4,500,000 euros to Olympique Lyonnais. Fulham filed a request for arbitration at the Court of Arbitration for Sport to challenge the decision, the request naming Olympique Lyonnais as respondent. Fulham sought the cancellation of the decision and an order that Olympique Lyonnais in fact pay it a significant sum arising out of an international transfer of a player. The decision of the FIFA executive committee provided that it ‘may be appealed before CAS within 20 days’. It was in this context that Fulham filed its request for arbitration. Olympique Lyonnais’ filing of an answer to that request brought about an ad hoc agreement to arbitrate. In this context, Art 45 of the Code, providing that the panel should decide the dispute according to the rules of law chosen by the parties, or, in the absence of such choice, according to Swiss

law, applied. There was no express choice of law (which will typically be the case where the (ad hoc) arbitration agreement comes about through conduct) so that Swiss substantive law applied by default. The tribunal noted that: As a general rule, provisions containing an election of law refer to substantive law, including, when Swiss law is chosen, the international treaties concluded by Switzerland, but excluding the conflict law provided by the chosen legislation.

This observation was an indirect reference to the much-vexed doctrine of renvoi in private international law.59 The relevant issue is whether, when a foreign law is chosen to govern or apply to parties’ disputes, the reference to that foreign law is simply a reference to the municipal law of the chosen country or, rather, a reference to the entirety of the law of the chosen country including its conflictof-laws rules. This decision makes it clear that, when Swiss law is chosen, either expressly or indirectly through the operation of r 45 of the Code, the reference to Swiss law is simply a reference to Swiss domestic or municipal law, and does not include its conflict-of-laws rules. _________________________ 1.

Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd (2013) 298 ALR 666 at [36]– [37].

2.

These will be identified by the choice-of-law rules of the curial law: see 39.7ff below.

3.

See Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45 at [218]ff; see also C v D [2008] 1 Lloyd’s Rep 329 at [28].

4.

See 39.4 below.

5.

Channel Tunnel Group Ltd v Balfour Beatty Constructions Ltd [1993] AC 334 at 357; Sumitomo Heavy Industries Ltd v Oil and Natural Gas Commission [1994] 1 Lloyd’s Rep 46 at 56–7 per Potter J; American Diagnostica Inc v Gradipore Ltd (1998) 44 NSWLR 312 at 324 per Giles CJ Comm D. See generally M Pryles, ‘Choice of Law Issues in International Arbitration’ (1997) 63 Arbitration 200; and 39.7ff below.

6.

Oceanic Sun Line Special Shipping Inc v Fay (1988) 165 CLR 197 at 255 per Brennan J; Shanghai Foreign Trade Corp v Sigma Metallurgical Co Pty Ltd (1996) 133 FLR 417.

7.

Peterson Farms Inc v C&M Farming Ltd [2004] 1 Lloyd’s Rep 614; cf Dampskibelskabet Norden A/S v Beach Building and Civil Group Pty Ltd (2012) ALR 161 at [99] when Foster J suggested that this question should be governed by the law of the seat of the arbitration.

8.

Dallal v Bank Mellat [1986] QB 441 at 445–6 per Hobhouse J; Sumitomo Heavy Industries Ltd v Oil and Natural Gas Commission [1994] 1 Lloyd’s Rep 46 at 56–7 per Potter J; BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169 at [11]. See further P E Nygh, Autonomy in International Contracts, Oxford University Press, Oxford, 1999, pp 73–8.

9.

See Ch 19 above and see Arsanovia Ltd v Cruz City 1 Mauritius Holdings [2012] EWHC 3702; Sulamérica Cia Nacional de Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638.

10. Tamil Nadou Electricity Board v ST-CMS Electric Company Private Limited [2008] 1 Lloyd’s Rep 93 is an example of the (separable) arbitration agreement being expressly governed by a law (English) different from that (Indian) governing the principal contract. The significance of this was that Indian

law was irrelevant to arbitral questions. 11. Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1981] 2 Lloyd’s Rep 446; Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 436–7 per Toohey, Gaudron and Gummow JJ but cf Sulamérica Cia Nacional de Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638. 12. Bulk Chartering & Consultants Australia Pty Ltd v T & T Metal Trading Ltd (The ‘Krasnogorsk’) (1993) 31 NSWLR 18. 13. Dallal v Bank Mellat [1986] QB 441 at 456 per Hobhouse J. 14. NV Kwik Hoo Tong Handel Mij v James Finlay & Co [1927] AC 604; Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 437 per Toohey, Gaudron and Gummow JJ; Shanghai Foreign Trade Corp v Sigma Metallurgical Co Pty Ltd (1996) 133 FLR 417 at 427 per Bainton J; C v D [2008] 1 Lloyd’s Rep 329. 15. Tzortsis v Monark Line A/B [1968] 1 All ER 949. 16. [1971] AC 572. 17. Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1981] 2 Lloyd’s Rep 446 at 455–6 per Mustill J. 18. [1994] 1 Lloyd’s Rep 45 at 57. 19. See note 18 above; C v D [2007] EWHC 1541 at [43]; affirmed on appeal: C v D [2008] 1 Lloyd’s Rep 329. 20. See UNCITRAL Report on the Model Law, 1985, para 234. 21. Deutsche Schachtbau GmbH v Ras Al Khaimah National Oil Co [1990] 1 AC 295 at 316 per Donaldson MR. 22. Orion Cia Espanola de Seguros v Belfort Mij [1962] 2 Lloyd’s Rep 257 at 264 per Megaw J. 23. [1978] 1 Lloyd’s Rep 357. 24. [1990] 1 AC 295. 25. Commercial Arbitration Acts s 22(1). 26. See, for example, Braes of Doune Wind Farm (Scotland) Ltd v Alfred McAlpine Business Services Limited [2008] 1 Lloyd’s Rep 608; Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd (2012) 287 ALR 315 at [165]–[186]. 27. Bank Mellat v Helliniki Techniki SA [1984] QB 291 at 301 per Kerr LJ; Sumitomo Heavy Industries Ltd v Oil and Natural Gas Commission [1994] 1 Lloyd’s Rep 46 at 57 per Potter J; American Diagnostica Inc v Gradipore Ltd (1998) 44 NSWLR 312 at 324 per Giles CJ Comm D; Halpern v Halpern [2006] 2 Lloyd’s Rep 83 at 94. 28. Miller v Whitworth Street Estates Ltd [1970] AC 583. 29. (2000) 50 NSWLR 236 at 256–7. 30. Sumitomo Heavy Industries Ltd v Oil and Natural Gas Commission [1994] 1 Lloyd’s Rep 46. 31. C v D [2007] EWHC 1541, affirmed at C v D [2008] 1 Lloyd’s Rep 329 at [17]. 32. Sutton, Gill and Gearing, Russell on Arbitration, 23rd ed, Sweet & Maxwell, London, 2007, p 85. 33. Weissfisch v Julius [2006] 1 Lloyd’s Rep 716 at [23], [25]; C v D [2007] EWHC 1541 at [30]. 34. [2007] 1 Lloyd’s Rep 237 at [111]–[112]. 35. C v D [2008] 1 Lloyd’s Rep 329 at [17].

36. (1998) 44 NSWLR 312. 37. See note 36 above, at 325. 38. American Diagnostica Inc v Gradipore Ltd (1998) 44 NSWLR 312 at 324 per Giles CJ Comm D, quoting Naviera Amazonica Peruana SA v Compania Internacional de Seguros del Peru [1988] 1 Lloyd’s Rep 116 at 119 per Kerr LJ. 39. Bank Mellat v Helliniki Techniki SA [1984] QB 291 at 301 per Kerr LJ. 40. [1970] AC 583. 41. Dicey & Morris on the Conflict of Laws, 8th ed, Stevens, London, 1967, p 1048. 42. [1975] QB 224. 43. Miller v Whitworth Street Estates Ltd [1970] AC 583. 44. Jugoslavenska Oceanska Plovidba v Castle Investment Co Inc [1974] QB 292. 45. International Arbitration Act 1974 (Cth) s 21; and see 7.3–7.6 above. 46. See note 45 above, Sch 2 Art 19. 47. See note 45 above, Sch 2 Art 20(1). 48. See note 45 above, Sch 2 Art 20(2). 49. The matter was left unresolved by the commission: see UNCITRAL Report on the Model Law, para 80. 50. As to which, see generally, Blackshaw, Siekmann and Soek, The Court of Arbitration for Sport 1984– 2004, TMC Asser Press, The Hague, 2006. 51. See, for example, Raguz v Sullivan (2000) 50 NSWLR 236. 52. Article R58 of the Code picks up, as a second or third fallback, the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled. Thus, for example, in Pamesa Valencia v Euro League Basketball (CAS 2004/A/605), in the absence of a choice by the parties, the applicable law consisted of the regulations of the Euroleague together with Spanish law, Spain being the country where Euroleague Basketball SL had its seat. Relevantly, however, in the context of that case, there was no need to go beyond the Euroleague regulations to resolve the dispute. 53. Compare Chapter 19 above. 54. Blackshaw, Siekmann and Soek, The Court of Arbitration for Sport 1984–2004, pp 90–1. 55. See note 54 above. 56. CAS 2003/O/482. 57. CAS 95/142. 58. CAS 20034/O/486. 59. See Chapter 15 above.

[page 893]

PART X

Recognition and Enforcement of Foreign Judgments and Awards Chapters 40

Recognition and Enforcement of Foreign Judgments at Common Law

41

Enforcement of Foreign Judgments by Statute

42

Enforcement of Judgments Within Australia

43

Enforcement of Foreign Arbitral Awards

[page 895]

Chapter 40

Recognition and Enforcement of Foreign Judgments at Common Law Introduction 40.1 The common law rules for enforcement of judgments given by other courts are in principle applicable both to interstate and overseas judgments. However, as Chapter 42 shows, there are specific rules applicable to Australian judgments, which render the common law rules irrelevant to intra-Australian enforcement. As well, there is a statutory scheme in the Foreign Judgments Act 1991 (Cth) for the recognition and enforcement of judgments made in foreign countries with which reciprocal arrangements have been made. That scheme is discussed in Chapter 41. The list of foreign jurisdictions to which the statutory scheme applies is limited, however. Of particular significance is the fact that it does not include any of the jurisdictions of the United States. For foreign judgments not covered by the statutory scheme, the only basis for recognition and enforcement is the common law principles considered in this chapter. 40.2 To entitle a foreign judgment to recognition at common law, four conditions must be satisfied: (a) the foreign court must have exercised a jurisdiction that Australian courts recognise; (b) the foreign judgment must be final and conclusive; (c) there must be an identity of parties; and (d) if based on a judgment in personam, the judgment must be for a fixed debt.1 The onus of establishing the existence of those conditions rests upon the party seeking to rely upon the foreign judgment. That party must not only establish that the foreign court had jurisdiction in the international sense,2 but also that the foreign judgment was final and conclusive according to the law under which it was pronounced.3 Once that onus is satisfied, the judgment is prima facie entitled to

[page 896] enforcement as a valid obligation, unless the defendant can establish one or more of the recognised defences to the enforcement of a foreign judgment. 40.3 Most foreign judgments are judgments in personam; that is, judgments that impose a personal obligation on the defendant, such as judgments for damages for breach of contract or in tort or decrees for specific performance or an injunction. This must be contrasted with a judgment in rem, which can be either a judgment that affects the status of a person or corporation or a judgment that affects or creates an interest in property. Judgments affecting the status of a person or corporation are best discussed under the headings of family law, bankruptcy and corporations.4 Those affecting or creating an interest in property form part of the law concerning title to property.5 Hence, virtually all of the discussion in this chapter will be concerned with jurisdiction in personam.

The Jurisdiction of Foreign Courts 40.4 The first and foremost prerequisite for recognition or enforcement of a foreign in personam judgment is that the foreign court has exercised a jurisdiction that the forum will recognise. The term ‘jurisdiction’ here used does not refer to the jurisdiction of the foreign court under its own rules, but ‘jurisdiction in the international sense’, by which is meant a competence that is recognised under Australian conflictual rules. 40.5 The basic principle is that the foreign court must have had jurisdiction over the person of the defendant at the time when the jurisdiction of the foreign court was invoked. Traditionally, that jurisdiction can arise in one of two ways: by the presence or residence of the defendant in the foreign jurisdiction, or by the voluntary submission by the defendant to that jurisdiction. Additional and alternative bases of jurisdiction have been put forward from time to time but have not received much acceptance.

Presence or residence of the defendant 40.6 There is little doubt that an Australian court will recognise a foreign judgment if the defendant was personally served with originating process while he or she was physically present within the jurisdiction of the adjudicating court,

even though that presence was only temporary.6 There may be an exception if the defendant was induced by fraud to come within the jurisdiction of the foreign court for the concealed purpose of serving him or her with originating process.7 This mirrors the basis upon which Australian courts exercise jurisdiction over foreigners at common law: see generally, Chapter 3. The presence must be that of the defendant personally. [page 897] For these purposes, a natural person cannot be present in a foreign jurisdiction through an agent or partner carrying on business there on his or her behalf.8 40.7 Does it suffice that the defendant was ordinarily resident within the foreign jurisdiction even though served whilst temporarily outside that jurisdiction? In principle the answer should be ‘Yes’. In Marshall v Houghton,9 the Manitoba Court of Appeal recognised an English judgment given against a defendant who was domiciled and ordinarily resident in England, but who had been served with the writ during a visit to Minnesota. 40.8 There is old English authority for the proposition that the defendant’s residence in the jurisdiction must exist at the time the jurisdiction of the foreign court is invoked.10 According to that view, the fact that the defendant was resident in the foreign jurisdiction when the obligation or cause of action arose does not suffice if the defendant has left the jurisdiction by the time proceedings are commenced.11 In Beals v Saldanha,12 the Supreme Court of Canada threw off the shackles of the old view, holding that a foreign judgment should be recognised or enforced if the defendant had a ‘real and substantial connection’ with the foreign jurisdiction, regardless of whether he or she was resident or present in that jurisdiction when proceedings were instituted there. The Beals plaintiffs sued in Florida seeking damages for fraudulent misrepresentation and rescission of a contract for the sale of a vacant lot owned by the defendants in Florida. Initiating process was served on the defendants in Ontario, where they lived. The court in Florida gave judgment for the plaintiffs and the Supreme Court of Canada affirmed the decision of the Ontario Court of Appeal that the judgment should be enforced in Ontario. Major J said:13 The principles of order and fairness ensure security of transactions, which necessarily underlie the modern concept of private international law … [T]he reality of international commerce and the movement of people continue to be directly relevant to determining the appropriate response of private international law to particular issues, such as the enforcement of monetary judgments …

International comity and the prevalence of international cross-border transactions and movement call for a modernization of private international law … Subject to the legislatures adopting a different approach by statute, the ‘real and substantial connection’ test should apply to the law with respect to the enforcement and recognition of foreign judgments.

The court held that by entering into a property transaction in Florida, the Canadian defendants had established a ‘real and substantial connection’ with Florida such that they could reasonably have expected to be subject to the jurisdiction of the courts of Florida, which was sufficient to justify recognition and enforcement of the Florida judgment in the courts of Ontario. [page 898] 40.9 The modern Canadian view has much to commend it, although it is heavily dependent on the fact that Canadian courts use a ‘real and substantial connection’ test as the basis of jurisdiction over absent defendants.14 Major J explained the relationship between the tests as follows:15 [I]t is reasonable that a domestic court recognize and enforce a foreign judgment where the foreign court assumed jurisdiction on the same basis as the domestic court would, for example, on the basis of a ‘real and substantial connection’ test.

It is unlikely that Australian courts will be bold enough to adopt a ‘real and substantial connection’ test for recognition and enforcement of foreign judgments when that is not the basis for an assertion of jurisdiction over absent defendants by Australian courts. Nevertheless, at the very least, the fact that the defendant is no longer ordinarily resident in the jurisdiction when the cause of action arose should no longer be regarded as an insuperable impediment to enforcement of a judgment of a court in that jurisdiction, if the defendant has been properly served with process.16 40.10 Whatever the rule about the presence or residence of persons, it requires some modification in the case of corporations. It is, of course, artificial to speak of the ‘residence’ or ‘presence’ of corporations. Those terms when used in this context merely serve to denote the degree of connection required to render a corporation liable to the involuntary jurisdiction of the foreign court. The test is the same as that applied at common law to determine whether a foreign corporation is liable to the jurisdiction of the forum. The older English cases hold that in order to be amenable to the jurisdiction of a foreign court, the corporation must carry on business in that country ‘at a definite, and to some reasonable extent, permanent place’.17 This can be done either by maintaining a

branch office in premises owned or leased by the company, or by carrying on the business of the company in that country through an agent for more than a minimal period of time.18 If the company is represented by an agent, that agent must have authority to bind the company. A mere commercial agency does not constitute a ‘presence’.19 A company is not ‘present’ through a wholly owned subsidiary, unless that subsidiary is shown to be a mere façade concealing the true facts.20 Here, too, the Canadian approach adopted in Beals is considerably more generous than the older English cases. Canadian courts have recognised and enforced judgments rendered in foreign courts where jurisdiction was based not on the ‘residence’ or ‘presence’ of a corporate defendant in the foreign jurisdiction, [page 899] but merely on the fact that the defendant corporation’s business had a ‘real and substantial connection’ with the foreign jurisdiction.21 40.11 It has been assumed in this discussion that the jurisdiction of the foreign court coincides with the territory of a ‘country’ or ‘law area’ as that term is normally understood. Thus, if initiating process is issued out of an American state court, the presence or residence of the defendant must be in that state and not in the United States as a whole. However, if initiating process is issued out of a United States federal court which can exercise jurisdiction, whether by reference to federal or state law, over a defendant present elsewhere in the United States outside the state where that court is sitting, the relevant jurisdictional area may be the United States as a whole.22

Voluntary submission by the defendant 40.12 A party can submit to the jurisdiction of a foreign court either by appearing as a party in the proceedings, whether as plaintiff or defendant, or by agreeing in advance to accept the jurisdiction of that court.

Submission by appearance 40.13 It is clear that a non-resident defendant who was served outside the

jurisdiction of the foreign court, but has nonetheless appeared to argue the merits of the case, has thereby submitted to the jurisdiction of that court. The mere filing of an unqualified appearance amounts to a submission,23 unless the appearance was entered by a solicitor without authority from the client,24 or the appearance was withdrawn with the leave of the foreign court or in accordance with its rules.25 Filing an appearance to protest the jurisdiction is not a submission, unless the defendant proceeds to argue the merits.26 [page 900] A litigant who commences proceedings in a foreign court as plaintiff is obviously bound by the outcome whether it favours the plaintiff or not.27 Similarly, the plaintiff cannot complain if the defendant recovers damages by way of set-off, cross-action or counter-claim.28 40.14 It has often been said that the appearance must be ‘voluntary’. Obviously an appearance entered under physical coercion or the threat thereof, or even an appearance procured by error, fraud or undue influence29 would not be regarded as voluntary. But compulsion may take subtler forms; for example a defendant may feel compelled to appear in a foreign action because of assets there which could be seized in execution if the plaintiff obtained judgment by default. In Voinet v Barrett30 the English Court of Appeal accepted the proposition that an appearance entered to prevent the possible seizure of property was voluntary. In contrast, three different provincial courts of appeal in Canada have held that an appearance to set aside a default judgment in order to save property within the jurisdiction, which might otherwise be seized in execution, does not amount to a voluntary submission for these purposes.31 In Australia, the position has been settled by s 11 of the Foreign Judgments Act 1991 (Cth), which applies to enforcement actions brought at common law. Section 11 provides that the entry of an appearance in foreign proceedings shall not be regarded as establishing the jurisdiction of the foreign court if the appearance was ‘merely’ for the purpose of one or more of the following: (a) protecting, or obtaining the release of— (i)

property seized, or threatened with seizure, in the proceedings; or

(ii) property seized subject to an order restraining its disposition or disposal; (b) contesting the jurisdiction of the court; or (c) inviting the court in its discretion not to exercise its jurisdiction in the proceedings.32

40.15 In Guiard v De Claremont,33 a majority of the English Court of Appeal held that a defendant who succeeded in setting aside a French default judgment but then proceeded to defend the case on its merits had submitted to the jurisdiction of the French courts even though at the time of his appearance his French assets had already been seized in execution of the judgment. The same result should apply in Australia, notwithstanding the operation of the Foreign Judgments Act 1991 (Cth) s 11, because of the effect of the defendant’s defence of the case on the merits.34 [page 901] A majority of the English Court of Appeal held in SA General Textiles v Sun and Sand Ltd35 that a party appealing against a judgment given in default of appearance submits thereby to the jurisdiction of the original court. Needless to say, such a party certainly submits to the jurisdiction of the appellate court, including its affirmation of the judgment given below.36 A defendant who successfully defends an action on the merits in a foreign court cannot then withdraw his or her submission before a regular appeal from that decision is heard but must be taken to have submitted to the jurisdiction of the appeal court.37 40.16 For a long time it was a vexed question whether an appearance entered to protest the jurisdiction of the foreign court could amount to a submission if the motion to set aside service of the writ or to obtain a stay of proceedings was refused by the foreign court.38 In Henry v Geopresco International Ltd,39 the English Court of Appeal held that there is voluntary submission for these purposes where the defendant does not dispute the jurisdiction of the foreign court under its own rules but merely requests that the court exercise its discretion to decline jurisdiction (which is the posture in forum non conveniens cases). The effect of Henry’s case was reversed by statute in the United Kingdom40 and the issue is now settled in Australia by the Foreign Judgments Act 1991 (Cth) s 11 (see 40.14). Under s 11, neither contesting the foreign court’s jurisdiction nor asking the foreign court to decline jurisdiction amounts to a voluntary submission in itself. In Starlight International Inc v Bruce,41 Lawrence Collins J held that there is no submission for the purposes of the United Kingdom Act if the procedure of the foreign court requires the defendant to contest the jurisdiction and plead to

the merits at the same time. There should be no submission unless the defendant has taken some step that is only necessary or useful if the objection to jurisdiction has been waived.42 This distinction seems to apply with equal force to s 11 of the Australian Act, which provides that there is no submission if the defendant has appeared ‘merely because’ he or she wishes to contest the jurisdiction of the foreign court, or to invite the court not to exercise its discretion. If the defendant is forced by the foreign court’s procedure to contest the merits in order to make his or her point about jurisdiction, then the submission should be regarded as being merely for the purpose of making the defendant’s jurisdictional argument. [page 902] In Jani-King Franchising Inc v Jason,43 Martin J of the Supreme Court of Queensland held that the defendant had taken sufficient steps in the foreign court to be taken to have submitted to its jurisdiction, even though he had entered a ‘special appearance’ there, seeking an order dismissing the complaint on the ground that the foreign court had no jurisdiction. Although the defendant had maintained his objection to the foreign court’s jurisdiction on a number of occasions, he had not done so on all. In particular, he had opposed joinder of other defendants without reserving his rights, and had sought an order that the plaintiff pay him ‘reasonable attorney’s fees and expenses’ of opposing the application for joinder. Thus, his engagement with the proceedings in the foreign court went beyond ‘merely’ entering an appearance to contest the jurisdiction of the court. These steps took his case outside the operation of s 11 (see 40.14) and constituted sufficient submission to the foreign court’s jurisdiction to justify recognition of its judgment in Australia. 40.17 The law of the foreign court and the law of the forum may differ on what amounts to submission for the purposes of jurisdiction. That situation arose in English proceedings in Akai v People’s Insurance Co.44 The defendant had entered a conditional appearance in an action brought in the Supreme Court of New South Wales, seeking a stay of the proceedings. Under the law of New South Wales, the steps taken by the defendant amounted to submission to the court’s jurisdiction. Nevertheless, in subsequent proceedings in England, it was held that the defendant had not submitted to the jurisdiction for the purposes of s 33 of the Civil Jurisdiction and Judgments Act 1982 (United Kingdom), the United Kingdom’s equivalent of s 11 of the Foreign Judgments Act 1991 (Cth).

Thomas J said that in considering what amounts to submission for these purposes, the court must have regard to the general framework of its own procedural rules, but also to the domestic law of the court where the steps were taken.45 If a step would not be regarded as a submission by the domestic law of the foreign court, it should not be regarded as a submission, even if it would amount to such under the law of the forum.46 Thomas J said that the converse would not necessarily be the case.47 If a step would be regarded as a submission by the domestic law of the foreign court, but not by the law of the forum, the forum court is free to disregard the foreign court’s characterisation and to hold that there had been no submission. That is what Thomas J held in Akai itself, saying that to hold otherwise would be to revive the principle in Henry v Geopresco.48 Thomas J’s decision in Akai depended, at least in part, on s 32(3) of the Civil Jurisdiction and Judgments Act 1982 (United Kingdom), which provides that a court in the United Kingdom shall not be bound by any decision of an overseas [page 903] court about whether there has been a submission to the jurisdiction. Subsection 32(3) has no counterpart in s 11 of the Foreign Judgments Act 1991 (Cth), which also does not use the language of ‘submission’, unlike s 33 of the United Kingdom Act. For the purposes of s 11, the question is simply whether the defendant appeared before the foreign court for the purposes of contesting its jurisdiction or asking it not to exercise its jurisdiction. Those should be simple questions of fact, not calling for interpretation of whether such steps amounted to submission, either by the law of the forum or by that of the foreign court’s country.

Submission by agreement 40.18 A person who agrees in advance to submit to the jurisdiction of a foreign court cannot afterwards complain that the foreign court did not have jurisdiction. The most obvious example of submission is a contractual clause that stipulates that a specified tribunal shall have jurisdiction in respect of any disputes arising between the parties.49 It has been held that, in interpreting such a clause, the court should take a wide view of the scope of the clause.50

A submission also occurs when the defendant has given a person who resides within the foreign country authority to accept service on the defendant’s behalf or where it has been agreed that service may be effected by leaving documents at a given address within that jurisdiction.51 It is no objection that the defendant was not actually aware of the existence of the submission clause in the contract, or even that the clause permitted a method of service which made it most unlikely that the defendant would ever have personal notice of the existence of the action.52 40.19 Can a submission agreement be implied? In Blohn v Desser53 Diplock J held that: … where a person becomes a partner in a foreign firm with a place of business within the jurisdiction of a foreign court, and appoints an agent resident in that jurisdiction to conduct business on behalf of the partnership at that place of business, and causes or permits … these matters to be notified to persons dealing with the firm by registration in a public register, he does impliedly agree with all persons to whom such a notification is made—that is to say, the public, to submit to the jurisdiction of the court of the country in which the business is carried on in respect of transactions conducted at that place of business by that agent.

Unfortunately, this sensible suggestion is in conflict with statements made by the Privy Council in Sirdar Gurdyal Singh v Rajah of Faridkote54 and by Kennedy LJ in Emanuel v Symon55 to the effect that an agreement to submit must be express. [page 904] For that reason Ashworth J in Vogel v Kohnstamm Ltd56 refused to follow Blohn v Desser. Sirdar Gurdyal Singh has also been followed in New Zealand.57 40.20 A choice-of-law clause whereby the parties agree that their contract shall be governed by, or construed under, the law of a particular country does not amount to a submission to the courts of that country.58 Similarly an agreement ‘to proceed only in accordance with Indonesian law’ was held not to mean that Indonesian courts should have exclusive jurisdiction over the contract.59 It would seem therefore that an agreement to submit must not only be express but must also be explicit.

Suggested additional and alternative bases for jurisdiction

Reciprocity or comity 40.21 In Re Dulles’ Settlement (No 2)60 Denning LJ put forward the concept of reciprocity as a basis for jurisdiction; namely that an English court should recognise the exercise of a foreign jurisdiction in circumstances similar to those in which an English court was entitled to assume jurisdiction. Thus, he suggested that since English courts could assume jurisdiction over a foreign defendant on the basis of a tort having been committed in England, they should recognise a foreign judgment given against an English defendant on the basis that he or she had committed a tort in the foreign jurisdiction. This principle was adopted in relation to recognition of foreign divorces by the Court of Appeal in Travers v Holley61 where Hodson LJ said: … it would be contrary to principle and inconsistent with comity if the courts of this country were to refuse to recognise a jurisdiction which mutatis mutandis they claim for themselves.

40.22 In Re Trepca Mines Ltd,62 Hodson LJ himself expressed the view that the Travers v Holley principle was only relevant in matrimonial causes. Attempts to persuade courts to accept the principle of reciprocity in relation to judgments in personam have failed in England,63 New Zealand64 and Western Australia.65 However, reciprocity of treatment played an important part in the adoption of the ‘real and substantial connection’ test (see 40.8) by the Supreme Court of Canada in Beals v Saldanha.66 Major J observed: ‘[I]t is reasonable that a domestic court recognize and enforce a foreign judgment where the foreign court assumed jurisdiction on the same basis as the domestic court would, for example, on the basis of a “real and substantial connection” test’.67 [page 905]

The nationality or domicile of the defendant 40.23 Buckley LJ listed in Emanuel v Symon68 as one of the bases of recognition of the judgment of a foreign court the situation where the defendant is a subject of the foreign country in which the judgment has been obtained. That proposition has not received much support and was rejected by Davitt P in the Irish case of Rainford v Newell-Roberts.69 However, the issue arose in 1989 before the Supreme Court of New South Wales in Federal Finance & Mortgage Ltd v Winternitz.70 In that case the plaintiff, a corporation formed under the law of Hawaii, had obtained judgment in that state against the defendant, who was a

citizen of the United States and who was registered as a voter in Hawaii. However, at the time of the judgment he had established permanent residence in Australia, where he had been served with the Hawaiian writ. Sully J held that in these circumstances the defendant could properly be regarded as a ‘subject’ of the state of Hawaii and that consequently the court in Hawaii had jurisdiction over him in the international sense. Similarly, in Independent Trustee Services Ltd v Morris,71 Bryson AJ of the Supreme Court of New South Wales followed Winternitz and declined to follow Rainford, holding that the defendant’s citizenship of the United Kingdom was a sufficient basis for accepting the effectiveness72 of a default judgment of the United Kingdom in New South Wales, even though the defendant resided in, and had been served with process in, New South Wales. 40.24 There are obvious difficulties with nationality as a basis for recognition. There is first of all the problem of linking nationality of a federal country with its constituent parts. If Winternitz had not maintained registration as a voter in Hawaii his United States citizenship would have been of little relevance. It is clear that common nationality, as in the former British Empire, does not give jurisdiction to each of the constituent jurisdictions.73 Equally, birth in Hawaii would not by itself have been a sufficient connection.74 40.25 Second, for many migrants to Australia, nationality may be dormant. The judgments of Sully J in Winternitz and Bryson AJ in Independent Trustee Services imply that the connection must be an active one, as evidenced by the holding of a passport in both Winternitz and Independent Trustee Services, and an application for a pension and voter registration in Winternitz. This might exclude the long-term resident of Australia who still holds the nationality of the country of birth without active participation in its political life and, a fortiori, the dual national. [page 906] It may be that domicile could also serve as a basis for international competence.75 Authority is slight. It was invoked as an alternative basis for recognition in the Manitoba case of Marshall v Houghton.76 In its traditional sense domicile is a difficult and technical notion (see generally Chapter 13), the use of which is generally in decline and should not be extended.

Subject matter present or cause of action arising in foreign jurisdiction 40.26 The fact that the litigation concerned property of the defendant situated within the jurisdiction of the foreign court was rejected as a basis for jurisdiction in the international sense by the Court of Appeal in Emanuel v Symon77 unless the foreign court rendered judgment against that property in rem. Nor does it suffice that the obligation which the plaintiff sought to enforce against the defendant was entered into or arose within the jurisdiction of the foreign court.78

Judgments in rem 40.27 A judgment in rem may take the form of a judgment against the res itself, such as a judgment given against a ship in Admiralty. Such a judgment will be recognised by Australian courts if the ship in question was present within the jurisdiction of the foreign court at the commencement of the proceedings there.79 40.28 In a more general sense the term ‘judgment in rem’ is also used to denote any judgment whereby a party has movable or immovable property adjudged to that party in title or possession,80 or whereby a party obtains a judicial sale of the property. Such a judgment, if made by the courts of the country where the property is situated, will be recognised in Australia as passing the title or right of possession. It is probably better to regard the foreign judgment as a disposition or assignment of the property in accordance with the lex situs. As Blackburn J said in Castrique v Imrie:81 In the case of Cammell v Sewell (1860) 5 H & N 728, a more general principle was laid down, viz, that ‘if personal property is disposed of in a manner binding according to the law of the country where it is, the disposition is binding everywhere’. This, we think, as a general rule, is correct, though no doubt it may be open to exceptions and qualifications; and it may very well be said that the rule commonly expressed by English lawyers, that a judgment in rem is binding everywhere, is in truth but a branch of that more general principle.

If this is true, there is little need to worry whether a foreign judgment is a judgment in rem or not. All that matters is whether under the lex situs the judgment of the court of the situs or any dealing done in pursuance thereof was sufficient to pass the [page 907]

title or other interest in the property.82 In Rubin v Eurofinance SA,83 the Supreme Court of the United Kingdom held that, for these purposes, foreign bankruptcy proceedings were not to be classified as either in personam or in rem, because their purpose is not to determine or establish the existence of rights but to provide a mechanism of collective execution by creditors against the property of the debtor. 40.29 Whatever view one takes, the foreign judgment in order to be recognised in Australia as affecting the title to the property in question must under the lex situs purport to affect the title or other interest in the property involved. Thus, if the effect of the judgment under the lex situs is merely to create a right in personam against the defendant which may be enforced against the defendant’s property, should it come within the jurisdiction of the foreign court, the judgment can only be recognised in the forum if the foreign court had personal jurisdiction over the defendant.84

The Judgment Must Be Final and Conclusive 40.30 The foreign judgment must be final and conclusive. By this is meant not only that the judgment must have put an end to the particular proceedings pending between the parties, but also that it must settle once and for all the controversy between the parties that led to the proceedings. As Lord Herschell said in Nouvion v Freeman:85 … it must be shewn that in the Court by which it [ie the judgment] was pronounced it conclusively, finally, and for ever established the existence of the debt of which it is sought to be made conclusive evidence in this country, so as to make it res judicata between the parties. If it is not conclusive in the same Court which pronounced it, so that notwithstanding such a judgment the existence of the debt may between the same parties be afterwards contested in that Court, and upon proper proceedings being taken and such contest being adjudicated upon, it may be declared that there existed no obligation to pay the debt at all, then I do not think that a judgment which is of that character can be regarded as finally and conclusively evidencing the debt …

In Nouvion v Freeman the House of Lords was asked to give effect to a Spanish remate judgment. Such a judgment was made in summary proceedings in which the defendant’s right to raise defences to the action was restricted. The party aggrieved by such a remate judgment was entitled under Spanish law to have the matter re-litigated in plenary proceedings before the same court in which case the defendant could raise all the defences available to him or her. It was obvious that a remate judgment was not final and conclusive. 40.31 The key test of finality is whether the foreign tribunal treats the judgment

as res judicata of the particular issues between the parties to the litigation.86 For example, [page 908] in Blohn v Desser87 an Austrian court had given judgment against a partnership of which the defendant was a member. The plaintiff sought to enforce the judgment against the defendant personally in England. Under Austrian law a judgment given against a partnership did not bind each partner individually unless further proceedings were taken against that partner in which certain defences could be raised which were not available in the action against the partnership. Diplock J held that the judgment obtained against the partnership as a whole was not final and conclusive in relation to the defendant personally. In Bank Polska Kasa Opieki Spolka Akcyjna v Opara,88 a Polish court had given judgment that could be set aside by anti-enforcement proceedings in Poland. McMurdo J of the Supreme Court of Queensland held that the fact that the judgment was susceptible to being set aside by successful anti-enforcement proceedings did not mean that it was not final and conclusive for purposes of enforcement in Australia.89 Under Polish law, any anti-enforcement action would be brought in separate proceedings. Thus, the original judgment created a res judicata on the issue with which it was concerned, namely the defendant’s debt to the plaintiff. 40.32 The fact that an appeal lies from the decision of the foreign court or even that appellate proceedings are pending does not affect the finality of the judgment90 even if the foreign court has a discretionary power to stay proceedings under its own law.91 This is particularly so if a stay has not been sought pending appeal in the foreign court.92 However, it may be appropriate in some circumstances (including, in particular, evidence about the prospect of success in the foreign appeal) for the court to give judgment enforcing the foreign judgment but then to order a stay of enforcement of that Australian judgment, pending the outcome of the foreign appeal.93 In exceptional circumstances, where there is an arguable defence against enforcement on grounds that may be considered in the foreign appeal, it may be appropriate to stay the enforcement proceedings in Australia.94 Similarly, the possibility that the final order of the foreign court may subsequently be varied in the event of default of a party carrying out its terms or

in separate anti-enforcement proceedings does not affect the finality of the order.95 40.33 Default judgments give rise to some difficulty because in most countries a default judgment can be set aside by the court that made it upon the application of the defendant. Until steps are taken to set the judgment aside, the judgment is [page 909] enforceable as a final and conclusive judgment.96 That is so even if the defendant is entitled to have the judgment set aside,97 although there are dicta in older cases to the effect that where the defendant can demand that the judgment be set aside as of right within a set period, the judgment cannot be regarded as final and conclusive until that period has expired.98 Where the judgment may be set aside only upon cause being shown by the defendant, the judgment should be treated as final and conclusive until actually set aside.99 40.34 A corollary of this principle is that where an Australian court gives judgment entirely on the basis of a foreign judgment, and the foreign judgment is later overturned and set aside, good reason exists to set aside the judgment that relied on it.100 40.35 In many countries an order for spousal or child maintenance can be varied or set aside with retrospective effect by the court that made it. Such orders are, therefore, not final and conclusive and cannot be enforced in Australia,101 except as provided by statute.102 If, as is the case in some American jurisdictions, the maintenance order can only be varied with prospective effect, Australian courts will enforce a claim at common law for the arrears accumulated under such an order.103 40.36 The plaintiff bears the burden of establishing that the judgment to be enforced is final and conclusive.104

The Identity of the Parties 40.37 The parties to the enforcement proceedings must be the same as those in the foreign judgment. One of the grounds on which the Austrian judgment in Blohn v Desser105 (see 40.31) was refused recognition was that under Austrian law the judgment was effective only against the partnership as such, whilst the

plaintiff in the English proceedings was seeking to enforce the judgment against the defendant personally. In Newcom Holdings Pty Ltd v Funge Systems Inc,106 a Full Court of the Supreme Court of South Australia declined to enforce an order made in bankruptcy [page 910] proceedings in the United States because (among other reasons) that order only affected parties to the bankruptcy proceedings, which did not include the person against whom enforcement was sought in South Australia. However, in MobiLight Inc v KK Machinery Pty Ltd,107 it was held that Blohn is not authority for the proposition that all the defendants to the foreign judgment must be made defendants to the enforcement proceedings in Australia. If the foreign judgment is expressed to be against several defendants acting as separate legal entities, enforcement proceedings may be brought in Australia against any or all of them.

What Judgments Can be Enforced? 40.38 The rule that only foreign judgments for a fixed sum may be enforced is the outcome of the archaic rule that the proper action on a foreign judgment is an action in indebitatus assumpsit. The result is that Australian courts at common law can only enforce foreign judgments that are for a fixed, or readily calculable, sum of money. This means that an order for the payment of a sum of money that is subject to the deduction of an as yet unascertained amount for costs cannot be enforced in the forum.108 40.39 However, this common law restraint never applied to judgments in equity.109 In White v Verkouille,110 McPherson J of the Supreme Court of Queensland allowed a receiver appointed by the District Court of Nevada to administer the assets of the defendant and to take possession of the Queensland bank accounts of the defendant without requiring as a prerequisite that the Nevada judgment be made a judgment of the Queensland court. Provided there was a sufficient connection between the defendant and the foreign court which granted the equitable relief, the forum would directly recognise the authority of the person appointed under the foreign order and make consequential orders to support that authority, without requiring as a prerequisite that the foreign judgment be made a judgment of the local court.

40.40 In Davis v Turning Properties Pty Ltd,111 Campbell J of the Supreme Court of New South Wales made a Mareva order (also known as a freezing order) to give effect in New South Wales to a Mareva order previously made by the Supreme Court of the Bahamas. To some extent, this amounts to an extension of the rule that judgments in equity are enforceable, because the High Court has held that Mareva orders are not injunctions but rather orders made in exercise of the court’s inherent power to prevent frustration of its process.112 The principle stated by Campbell J [page 911] was rather broader in scope than the simple enforcement of foreign judgments in equity:113 The administration of justice in New South Wales is not confined to the orderly disposition of litigation which is begun here, tried here and ends here. In circumstances where international commerce and international monetary transactions are a daily reality, and where money can be transferred overseas with sometimes as little as a click on a computer mouse, the administration of justice in this state includes the enforcement in this state of rights established elsewhere. As well, the ordinary course of administration of justice has long included a court making certain of its remedies available in aid of proceedings in another court …

In Independent Trustee Services Ltd v Morris,114 Bryson AJ of the Supreme Court of New South Wales followed White v Verkouille and Davis and ordered the taking of an account in New South Wales to give effect to a judgment of the High Court of England and Wales, exercising the court’s inherent jurisdiction to provide assistance to the foreign court without requiring as a prerequisite that the foreign judgment be made a judgment of the local court. 40.41 In Celtic Resources Holdings plc v Arduina Holding BV,115 Hasluck J of the Supreme Court of Western Australia was prepared to accept, following Davis, that in certain circumstances Australian superior courts have an inherent jurisdiction to grant Mareva relief in relation to assets in Australia where a foreign judgment has been or is to be obtained. However, in exercising that jurisdiction, the court must endeavour to act consistently with the procedural and substantive requirements of the country of the original court. In Celtic Resources, the applicant applied ex parte for a Mareva order in Western Australia to freeze assets until enforcement could be made of a judgment given in the United Kingdom. At the time of the application, the United Kingdom judgment was not yet enforceable under the Civil Procedure Rules (United

Kingdom) and so could not be enforced directly in Western Australia.116 Accordingly, Hasluck J held that no Mareva order should yet be made in Western Australia, because to do so would circumvent and be inconsistent with the prescribed procedure in the country of origin by having the indirect effect of enforcing the judgment in question before it had become enforceable in the country of origin. 40.42 The Supreme Court of Western Australia had previously held, in Official Receiver of the State of Israel (in his capacity as liquidator of North America Bank Ltd (in liq)) v Raveh117 that the court does not have inherent jurisdiction to grant a Mareva order over assets in Australia in support of a foreign judgment that has been or is to be obtained. Faced with conflicting decisions of the same court, Le Miere J of the Supreme Court of Western Australia recently preferred Celtic Resources to Raveh in BCBC Singapore Pte Ltd v PT Bayan Resources TBK (No 3),118 holding that the [page 912] inherent jurisdiction does exist. In Severstal Export GmbH v Bhushan Steel Ltd,119 the New South Wales Court of Appeal affirmed the grant of a freezing order designed to prevent removal of an asset (a cheque) from Australia because of the danger that the judgment of a court in India might go unsatisfied if the asset were removed. The court treated the question as being one of interpretation of the relevant rule of the Uniform Civil Procedure Rules 2005 (NSW) (r 25), rather than an exercise of the court’s inherent jurisdiction to provide assistance to foreign courts. The Indian judgment, if made in the applicant’s favour, would have been a money judgment rather than an equitable order, so the principles considered in 40.39–40.41 were not directly relevant. Nevertheless, the Court of Appeal held that r 25 authorised the court to grant freezing orders to prevent frustration or inhibition of the process of a foreign court. That being so, the rule (and its equivalents in other jurisdictions) may in future cases supplement or replace the exercise of the court’s inherent jurisdiction considered in 40.39–40.41.

The Effect of a Foreign Judgment 40.43 Due to the fiction that foreign courts were not courts of record, the

earliest authorities regarded foreign judgments merely as prima facie evidence of the existence of a debt and not as creating an estoppel between the parties. As a result, the issue ostensibly settled by the foreign judgment could be reopened in the forum.120 40.44 However, during the nineteenth century the courts came to accept that, provided the foreign court had jurisdiction in the international sense, the intrinsic merits of the judgment could not be called into question. The position was summed up authoritatively by Blackburn J in Godard v Gray:121 The decisions … seem to us to leave it no longer open to contend, unless in a court of error, that a foreign judgment can be impeached on the grounds that it was erroneous on the merits; or to be set up as a defence to an action on it, that the tribunal mistook either the facts or the law.

In that case, a French court had rendered a judgment in which it purported to construe an English contract containing a penalty clause. Under English law the clause was void, but the French court, though purporting to apply English law, awarded damages according to the amount fixed by the penalty clause. In accordance with the principle stated above, the English court refused to reopen the French decision. The French judgment being the final and conclusive decision given by a court of competent jurisdiction was enforced as such in England even though it was obviously wrongly decided.122 [page 913] Australian courts have accepted and applied the principle in Godard v Gray on several occasions.123 So well accepted is the Godard v Gray principle that it was not put in issue (wisely so, according to the judge) in SK Foods LP v SK Foods Australia Pty Ltd (in liq)(No 3),124 where Flick J of the Federal Court said that the old rule that foreign courts are not courts of record is ‘long gone’.125 40.45 Despite the old fiction that a foreign judgment is not a judgment of record, a foreign judgment today has most, though not all, of the attributes of res judicata, which attach to a domestic judgment under the common law.126 But the foreign court cannot bind an Australian court on the issue of whether the foreign court had jurisdiction in the international sense.127

Enforcement

40.46 A plaintiff who wishes to enforce a foreign judgment against the defendant in the forum can rely on the estoppel created by the judgment in two distinct ways.128 In the first place the plaintiff can rely on the foreign judgment as imposing an obligation on the defendant to pay the sum adjudged. Since this is a sum certain the plaintiff can sue for the amount as a liquidated amount like any other simple contract debt.129 40.47 In the alternative, or in addition, the plaintiff may bring action once more on the original cause of action for which judgment was obtained abroad. One of the results of the fiction that a foreign court is not a court of record is that a foreign judgment does not bring about a merger of the original cause of action.130 Thus, the plaintiff is free to bring an action for the same cause. But since the case of Godard v Gray131 (see 40.44) a plaintiff can rely on the judgment as creating an estoppel precluding the defendant from raising any defence which was, or could have been, raised in the foreign proceedings.132 The rule is anomalous in that it simultaneously denies and affirms that a foreign judgment can operate as res judicata, but the continued existence of this method of enforcement was affirmed by a Full Court [page 914] of the Supreme Court of New South Wales in Delfino v Trevis (No 2)133 and, more recently, by the Supreme Court of New South Wales in RDCW Diamonds v Da Gloria.134 40.48 The right to bring a fresh action on the same cause of action may enable a plaintiff who has received unsatisfactory damages abroad to try to increase recovery in the forum.135 It is a defence to such an action that the plaintiff has elected to sue abroad and that the judgment obtained has been wholly satisfied.136 If there are two persons liable, one of whom has been successfully sued abroad and the other not, judgment can be obtained in the forum against the second defendant, provided the amount recovered from the first defendant is deducted.137 40.49 For the defence to succeed, the defendant must show: (i) identity of the parties; (ii) identity of the causes of action; (iii) a valid and final foreign judgment; and (iv) payment made in pursuance of the judgment of the foreign

court.138 The foreign proceedings must have been instituted at the election of the plaintiff, though they need not have been instituted by the plaintiff. In Black v Yates139 the husband of the plaintiff was killed in an accident in Spain due to the negligence of the defendant. According to the law of Spain the widow’s claim for damages analogous to the Fatal Accidents Act was brought by the prosecution as part of the criminal proceedings. However, the widow’s Spanish lawyers joined in the proceedings and failed to request the court not to take the civil claim into consideration as permitted by Spanish law. Judgment was obtained for the loss suffered by herself and the children as dependants of the deceased breadwinner and the sum was paid into the Spanish court. Potter J held that the widow had made her election to sue for civil damages in Spain through her lawyers there and payment having been made in court, the judgment was satisfied. However, the claim made by her on behalf of the children in England was held to be sustainable as they were entitled to repudiate an election made on their behalf that was not in their interest, it being accepted by Potter J that the sum awarded by the Spanish court was insufficient by English standards.140 [page 915]

By way of defence, cause of action estoppel, issue estoppel or Anshun estoppel 40.50 A foreign judgment is not only a sword but also a shield. A foreign judgment which has been satisfied may be pleaded by way of cause of action estoppel as a bar to any action brought between the same parties or their privies in the forum on the same cause of action. Though the parties should be identical141 and the causes of action and heads of damage recoverable the same,142 it is not essential that the law applicable and consequently the possible result in each jurisdiction be the same. Furthermore, it is not essential that the foreign proceedings be instituted before the local proceedings, provided they come to judgment before the local proceedings.143 Thus, in In the Marriage of Miller and Caddy144 a woman brought proceedings in California for division of the matrimonial property consequent upon divorce. She obtained a declaration confirming the equal ownership of property held by the parties jointly in New South Wales. That order was in

accordance with Californian law, which provided for the equal division of community property. Deviation from that rule was exceptional. Several years later, the woman applied in Australia for an adjustment of the title to the New South Wales property in her favour under s 79 of the Family Law Act 1975 (Cth). In view of the gross disparity in resources of the parties it was likely that an Australian court, if not constrained by the Californian judgment, would have awarded her more than one half of the local assets. A Full Court of the Family Court of Australia held that the cause of action in California was one for the adjustment of property rights as was the cause of action under s 79. The fact that the law to be applied was different in each jurisdiction did not detract from that identity. Accordingly the wife was estopped from proceeding with her Australian action. Nor, in the view of the Full Court, was it material that the Californian order in that respect had been merely declaratory and had not sought to alter the existing rights of the parties. An application for leave to appeal to the High Court was refused. 40.51 Cause of action estoppel normally assumes that the matter has been fully litigated on the merits in the foreign court.145 However, if a party to the foreign proceedings has deliberately withdrawn from those proceedings, that party cannot afterwards complain that there was no trial ‘on the merits’ of his or her claim. The dismissal of that claim will prevent a second action being brought on the same claim between the same parties in the local forum.146 The defence of cause of action [page 916] estoppel may be waived expressly, or by failing to plead it, or circumstances may arise in which a party may be estopped from relying on it.147 40.52 A foreign judgment can also be relied upon by way of issue estoppel to prevent the reopening of any issue in subsequent proceedings that has previously been litigated between the same parties or their privies. In Carl Zeiss Stiftung v Rayner and Keeler (No 2),148 Lord Guest said that for the doctrine of issue estoppel to apply in the second set of proceedings, the requirements were: (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

Lord Guest’s formulation of the test was unanimously adopted by the High Court

of Australia in Kuligowski v Metrobus,149 albeit in a case not concerned with foreign judgments. In The Sennar (No 2),150 Lord Brandon said that the second requirement, that of finality, can be broken down into two conditions; namely that the foreign decision is ‘final and conclusive’ and that it was ‘on the merits’.151 In relation to the latter requirement, Lord Brandon said:152 [A] decision on the merits is a decision which establishes certain facts as proved or not in dispute; states what are the relevant principles of law applicable to such facts; and expresses a conclusion with regard to the effect of applying those principles to the factual situation concerned.

40.53 These tests indicate that it is possible for a foreign judgment to found a subsequent issue estoppel in Australian proceedings.153 This is so even if the foreign judgment is an interlocutory one,154 although the need for caution has been urged in such cases.155 Indeed, the majority in Carl Zeiss agreed on the need for caution in applying the doctrine of issue estoppel to foreign judgments generally, because of the possible injustice and inconvenience that might be caused to defendants unfamiliar with procedures in a foreign court. In particular, the majority stated the requirements that the issue in question should be fully litigated before, and considered by, the foreign court and that the foreign court’s decision on that issue would operate by way of issue estoppel in the courts of the country where it was [page 917] rendered.156 Thus, caution on the part of the local court is particularly appropriate when the foreign proceedings were ex parte or where the reasons for judgment, for whatever reason, do not spell out precisely the legal and factual grounds on which the outcome rests.157 40.54 In determining whether an issue estoppel arises, it is necessary to identify with precision the issue that was decided in the earlier proceedings to see whether it is identical with an issue sought to be raised in the later proceedings.158 For example, in The Sennar (No 2),159 the plaintiff brought an action in tort in the Netherlands against the defendant shipowner alleging that they had suffered loss as a result of the master of the defendant’s ship inserting a false date in a bill of lading. The bill of lading contained a clause conferring exclusive jurisdiction on the courts of Sudan. The Dutch court declined jurisdiction on the ground that the plaintiff’s action could only lie on the contract contained in the bill of lading and that its jurisdiction was thereby excluded. The

plaintiff’s successor in title then brought action in England in tort in respect of the same cause of action. Since the Dutch court had not decided on the merits of the substantive claim for damages, no cause of action estoppel arose. However, the defendant sought to rely on the Dutch decision to estop the plaintiff from arguing the particular issue that the exclusive jurisdiction clause did not apply. For the plaintiff it was argued that there was no estoppel because: (a) the Dutch decision was not on the merits of the claim, and (b) the cause of action in the Dutch court was not the same as that in the English court. Dealing with the first matter, the House of Lords made it clear that in order to qualify as a decision on the merits, the determination need not be one that disposes of the substantive claim. It means simply that a court has held that it has jurisdiction to adjudicate upon an issue raised in the cause of action and that its judgment on that issue is final and conclusive.160 The Dutch court had determined two matters: first, that the action should lie in contract and not in tort; and second, that under the bill of lading such claim could only be brought in Sudan. In relation to the second matter, the House of Lords looked at substance rather than the manner in which the action was framed. In substance the issue in both jurisdictions was the same: the application of the exclusive jurisdiction clause, whether the action was framed in contract or in tort.161 40.55 Similarly, in Armacel Pty Ltd v Smurfit Stone Container Corp,162 Jacobson J of the Federal Court of Australia held that an issue estoppel arose as a result of the decision of a United States District Court to the effect that a choice of forum clause in a contract was not an exclusive jurisdiction clause. The Federal Court held that the [page 918] plaintiff was estopped from arguing that the clause conferred jurisdiction exclusively on the courts of New South Wales. The United States District Court’s decision refusing to grant a stay of proceedings because the clause was not exclusive satisfied all three limbs of the Carl Zeiss test. Jacobson J also held that it was not material that the United States court had applied United States law when interpreting the relevant clause rather than New South Wales law, which

was the governing law of the contract. When the issues and the parties are the same, ‘issue estoppel operates regardless of whether the local court would regard the reasoning of the foreign judgment as open to criticism’.163 40.56 Related to, but not identical with, the doctrines of res judicata and issue estoppel is Anshun estoppel, which precludes a party from raising an issue that could have been, but was not, raised in earlier proceedings between the same parties.164 Anshun estoppel is based on reasonableness of conduct, so that the issue in question must have been so relevant in the first proceedings that it would have been unreasonable not to raise it or rely on it.165 In PCH Offshore Pty Ltd v Dunn (No 2)166 and Telesto Investments Ltd v UBS AG,167 the Federal Court and the Supreme Court of New South Wales, respectively, considered whether an Anshun estoppel may be based on a final judgment of a foreign court.168 Both courts concluded that the question whether an earlier foreign judgment can found an Anshun estoppel in later Australian proceedings must depend on whether or not there is an equivalent doctrine in the relevant foreign jurisdiction. In PCH Offshore, there was no evidence about the relevant foreign law (Azerbaijani law) and Siopis J held that there would be ‘an element of unreality’ in founding an estoppel on the usual assumption (see generally Chapter 17) that unproved foreign law is the same as Australian law.169 In contrast, in Telesto Investments, there was uncontested expert evidence that the relevant foreign law (Singapore law) had a similar principle to Anshun estoppel, but Sackar J concluded on the facts that the plaintiff’s conduct in the foreign proceedings was not sufficiently unreasonable to give rise to an Anshun estoppel in the local proceedings.170 [page 919]

Can a judgment that is defective under its own law have international validity? 40.57 It may happen that a court of competent jurisdiction in the international sense lacked jurisdiction under its own law with the result that the judgment is a complete nullity under that law. Could the defendant in enforcement proceedings challenge the validity of the judgment under its own law? One may be forgiven for thinking that the answer is obvious. How could one say of a judgment which is a nullity in the place where it was given that it was

final and conclusive under that law? In the early Australian cases dealing with the recognition of foreign judgments it was always assumed that the plaintiff who relied on a foreign judgment had to plead that the judgment was given by a court duly competent under its own law.171 As Higinbotham J said in Hogan v Moore,172 a foreign judgment is conclusive ‘to the same extent as in the country where the judgment was obtained’. 40.58 This simple solution conflicts with the reasoning of the English Court of Appeal in Pemberton v Hughes.173 In that case it was alleged that a divorce decree given by a Florida court which was competent in the international sense was void under the law of Florida because the decree had been pronounced before the time for appearance by the respondent under its Rules of Court had expired. The Court of Appeal was not satisfied on the evidence that under Florida law this omission rendered the decree null and void. But even if it did, the court held the decree to be effective in England. As Lindley MR explained:174 [T]he jurisdiction which is important in these matters is the competence of the Court in an international sense ie, its territorial competence over the subject matter and over the defendant. Its competence or jurisdiction in any other sense is not regarded as material by the Courts of this country.

In coming to this conclusion his Lordship relied on the earlier case of Vanquelin v Bouard.175 In that case the plaintiff brought action in England on a judgment pronounced in France by a commercial tribunal. The jurisdiction of that court was limited by French law to certain transactions (including the drawing and acceptance of bills of exchange) entered into by traders who were resident within the jurisdiction of the tribunal. The defendant in the English proceedings pleaded that he was not a trader and had not been resident within the jurisdiction of the French court. The plea was held to be bad, Erle CJ saying:176 [I]t seems to me upon this plea that the court of the Tribunal de Commerce had jurisdiction over the subject matter of the suit in which the judgment was obtained, viz the liability of the acceptor of a bill of exchange, and that, if it were a matter of defence

[page 920] that the defendant was not a trader or not resident within the jurisdiction of the court, it was a matter which ought to have been set up by way of defence in that court, and cannot avail the defendant in an action upon the judgment here.

Far from saying that the question of internal jurisdiction was irrelevant, Erle CJ

expressly found that the French court had jurisdiction over the kind of action in question. What was at issue was whether the French court had jurisdiction in respect of the particular transaction and over the particular defendant. When seen in the light of a closer reading of Vanquelin v Bouard, the rather sweeping statement of Lindley MR quoted above should be confined to situations where, in his own words, the foreign judgment is assailed ‘for a mere error in procedure’.177 One must therefore distinguish between a complete lack of jurisdiction on the one hand, and a mistake as to the procedure or law in the exercise of jurisdiction on the other. 40.59 Thus, if the foreign court lacked jurisdiction under its own law over the type of proceedings in question (that is, if it lacked what Australian procedure would call subject matter jurisdiction), the judgment should be treated as a nullity even though the foreign court may have had jurisdiction in the international sense. For example, in Papadopoulos v Papadopoulos,178 a civil court in Cyprus annulled a marriage when only the religious authorities were competent to do so under Cypriot law. A Divisional Court of the Probate, Divorce and Admiralty Division of the High Court in England refused to recognise the Cypriot judgment on the ground that the court in Cyprus had no jurisdiction under its own law. The court’s lack of subject matter jurisdiction could not be remedied by the parties’ consent.179 40.60 In contrast, if the foreign court did have jurisdiction under its own law to deal with the particular type of action before it, its judgment must be given effect within the forum even though it may be open to challenge under the law where it was made, on account of some error of fact or law, so long as the judgment has not been set aside by the court that made it.180 In Ainslie v Ainslie181 it was argued that a Western Australian separation order should not be recognised in New South Wales because it had been made on a ground not authorised by Western Australian law. Isaacs J refused to accede to this argument, saying:182 ‘By the law of the domicile [that is, Western Australia] that order stands unimpeached in Western Australia, and no court in New South Wales can challenge it for the reason put forward’. 40.61 This principle applies even if the judgment is void under the law of the place where it was made. In Merker v Merker183 a German court with general jurisdiction to annul marriages had purported to annul a marriage as being void ab initio. According to English standards the German court had jurisdiction to make such a decree. However, under German law the marriage was actually voidable, not

[page 921] void, and because of this mistake other German courts would have disregarded the decree. Sir Jocelyn Simon P, however, held that he was bound to give effect to it. At first sight such a decision seems ludicrous. It is, however, based on sound principle. Generally speaking the forum is not competent to decide whether a foreign court has properly applied its own law. Unless the lack of jurisdiction is obvious on the face of the judgment, the party who alleges that the judgment of a foreign court is a nullity under the law of that court must first have the judgment set aside in the country where it was made.184

Defences to Enforcement 40.62 A final and conclusive judgment given by a court of competent jurisdiction in the international sense is prima facie entitled to enforcement in Australia. It is, with one important and anomalous exception, not open to a defendant to challenge the intrinsic merits of the foreign decision by alleging that the foreign court made a mistake as to the facts or the law.185 Equally, the defendant cannot raise in the enforcement proceedings any defence that was or could have been raised in the foreign proceedings even though it would have been a complete answer to the claim.186 Thus, for example, in Israel Discount Bank of New York v Hadjipateras,187 a defendant failed to appear in proceedings against him in New York and judgment was entered against him. In the enforcement proceedings he sought to rely on a defence of undue influence that would have been available to him in New York, but which he had not raised on legal advice that his chances of defending the proceedings successfully were far greater in England. The Court of Appeal held that he could not raise the defence in the English proceedings. 40.63 It may be otherwise if the defence was not available under the law of the foreign court, or material evidence on which the defence could be based was not available at the time of the proceedings before that court.188 The reasoning of Stephenson LJ in Israel Discount Bank v Hadjipateras189 suggests that only defences based on the distinctive public policy of the forum, such as duress and undue influence, can be raised in the forum if not available under the law of the place where the judgment was obtained.

[page 922] 40.64 Consequently, the number of defences that a defendant can raise to the enforcement of a foreign judgment in Australia is limited. The defences are as follows.

That the foreign judgment was obtained by fraud 40.65 Any judgment, whether it be domestic or foreign, can at any time be challenged on the ground that it was obtained by a fraud upon the court. A domestic judgment can only be challenged on this ground, however, if the facts on which the allegation of fraud are based were not before the court in the original action and did not become known to the party seeking to have the judgment set aside until after the hearing of the original proceedings.190 There is no doubt that a foreign judgment can also be impeached in these circumstances. ‘Fraud’ in the sense here used includes not only actual fraud, but also the equitable notion of constructive fraud such as conduct on the part of a person under a fiduciary duty that raises the inference that he or she has made a private profit out of the trust even if it cannot be proved that such a profit was actually made.191 40.66 The fraud is normally the fraud of the plaintiff. But it need not be so: the fraud could be on the part of the court,192 or even on the part of the defendant in the foreign proceedings, as in the case where a defendant under a fiduciary duty consents to a judgment to pay a certain sum to the beneficiary without fully disclosing the extent of the funds it holds in trust.193 Proof of perjury by a witness is insufficient unless the plaintiff perpetrated the fraud by procuring the witness’s perjury.194 Even perjury on the part of an agent of the plaintiff is insufficient, because perjury would lie beyond the scope of the agent’s authority unless the plaintiff procured the perjury.195 In Benefit Strategies Group Inc v Prider,196 the defendants in South Australian enforcement proceedings argued that a foreign judgment from a state court in California was fraudulently obtained because of perjury on the part of the Californian process servers, who had declared that they had properly served the defendants in purported compliance with Californian law. The defendants denied that there had been proper service. They had entered no appearance in the foreign proceedings and the Californian court gave judgment against them by default. In the enforcement proceedings, a Full Court of the Supreme Court of South Australia held that

mere proof of perjury on the part of the process servers would be insufficient to resist enforcement of the Californian judgment.197 The mere fact that the process [page 923] servers in California were agents of the plaintiffs was not enough in itself to establish that their (alleged) perjury was procured by or at the instance of the plaintiffs.198 40.67 Difficulties have been caused by a series of English decisions in which it has been held that the defence of fraud may be raised in enforcement proceedings, even though it was already raised before, and adjudicated upon by, the foreign court. In Vadala v Lawes199 the defendant pleaded to an action brought against him on an Italian judgment that the judgment had been procured by false evidence. The plaintiff replied that these allegations had been raised in the Italian proceedings and had been rejected by the Italian court. Nevertheless, the Court of Appeal held that the defendant could raise the issue again in England. As Lindley LJ put it: 200 [I]f the fraud upon the foreign Court consists of the fact that the plaintiff has induced that Court by fraud to come to the wrong conclusion, you can reopen the whole case even though you will have in this Court to go into the very facts which were investigated and which were in issue in the foreign Court.

In Syal v Heyward,201 the English Court of Appeal took the principle to its logical conclusion. In that case the defendants were aware of the fact that the claim made against them in the foreign proceedings was false, but they chose not to defend the action abroad, preferring to raise the question of fraud in the enforcement proceedings in England. The Court of Appeal held that they could do so, and it later affirmed the principle again in Jet Holdings Inc v Patel.202 In that case, the plaintiff had brought an action in California. The defendant alleged in the Californian proceedings that he feared for his life and safety if he went to California. He was ordered to attend for the taking of depositions. When he failed to do so, judgment was given against him in his absence. Following Vadala v Lawes, the Court of Appeal held that the defendant could raise the issue of the alleged intimidation again in the enforcement proceedings. It amounted to fraud because the allegations of violence, threats and fear had been denied by the plaintiff’s lawyers in the Californian proceedings.203 40.68 It is difficult to reconcile the decision in Jet Holdings with the Court of

Appeal’s earlier decision in Israel Discount Bank of New York v Hadjipateras204 (see 40.62). It seems illogical to allow a defendant to raise the issue of intimidation when that same issue was raised and contested in the foreign court, but not to allow the defendant to raise the question of undue influence when that issue was not raised abroad and, consequently, could not there be placed in issue. Instead of discouraging multiplicity of litigation, such an approach would encourage it. 40.69 In England, there is only one exception to the principle that an issue of fraud can be reopened in enforcement proceedings, even if it has been raised or could have been raised in the foreign court. If the defendant in the foreign proceedings has first moved the foreign court to set aside its judgment on the ground of fraud and [page 924] failed, the defendant will be estopped from alleging the same fraud in the English proceedings.205 Apart from this exception, the House of Lords in Owens Bank Ltd v Bracco206 refused to bow to textwriter opinion and reiterated the broad defence of fraud available in English courts. It did so, as appears from the speech of Lord Bridge of Harwich,207 on the ground that the inclusion of fraud as a specific defence to the enforcement of judgments in the then Imperial legislative scheme embodied in the Administration of Justice Act 1920 (United Kingdom) s 9(2)(d) and later repeated in the wider Foreign Judgments (Reciprocal Enforcement) Act 1933 (United Kingdom) s 4(1) (a)(iv), indicated a specific legislative intention that the word ‘fraud’ should have a wider meaning in the statutory context than it had in domestic English law. In view of that wider statutory meaning, his Lordship felt unable to amend the common law for fear that this would create a disparity between common law and statute.208 40.70 The reasoning, with great respect, appears to be a case of lifting oneself up by one’s bootstraps. The statutory provision to which his Lordship referred does not define the word ‘fraud’. It can be given any meaning the court chooses. It is clear that it should have the same meaning as at common law, and if the House of Lords had reversed the previous decisions of the Court of Appeal, the very basis for giving the statutory provision the wider meaning would have gone.209 As it is, the House of Lords has enshrined in English law a rule which,

as Kirby P aptly put it in Wentworth v Rogers (No 5),210 may be ‘no more than a reflection of the attitudes of the English judiciary at the apogee of the British Empire’ towards foreign courts. 40.71 The issue came up for decision for the first time in Australia in Keele v Findley.211 In that case, Rogers CJ CommD, sitting at first instance, refused to follow the English decisions. His Honour did so for the following reasons:212 1.

There was no case in Australia in which the matter had come up squarely for decision. Until recently, obiter dicta in Australian courts favoured English authority but without serious consideration of the issue.213

2.

There was a respectable line of authority in Canada, both before and after Vadala v Lawes, supporting the view that a foreign judgment can only be refused enforcement on the ground of fraud in the same circumstances as would entitle the forum to set aside a domestic judgment; namely, where the fraud [page 925] was unknown to the party alleging the same at the time of the original trial.214 On the other hand, in New Zealand the Court of Appeal has followed Vadala v Lawes215 but not Syal v Heyward.216

3.

If the English line of authority was in error, it should not be transplanted to this country.

4.

The English decisions have been unanimously condemned by textwriters.217

5.

The English line of authority started at a time before it was clarified that an English judgment could only be set aside for extrinsic fraud.218

6.

The same rule should apply for the enforcement of local and foreign judgments in the face of allegations of fraud.

40.72 Despite Rogers CJ CommD’s strongly-argued opposition, two later Australian cases have held that the English rule still forms part of Australian law. In Close v Arnott,219 Graham AJ observed that the Canadian decisions and textbook writers’ criticisms relied on by Rogers CJ CommD had been considered and rejected by the House of Lords in Owens Bank Ltd v Bracco,220 but the House of Lords had made no mention of Keele v Findley.221 As a result, Graham

AJ said that if necessary, he would distinguish Keele v Findley and find that the English rule continued to apply in New South Wales in respect of actions to enforce judgments obtained in undefended proceedings in a foreign court where the defendant has, for good reason, been unable to meet the plaintiff’s case in that court. In Ki Won Yoon v Young Dung Song,222 Dunford J went a step further and said that Keele v Findley was incorrectly decided, and that the English rule should continue to be applied in New South Wales unless and until changed by parliament.223 In Ki Won Yoon, the plaintiff, a South Korean resident, obtained judgment against the defendant, an Australian resident, in a South Korean court. The defendant submitted to the jurisdiction of the Korean court and his representatives argued the case on the merits, without success. In the enforcement proceedings in Australia, the defendant argued that the Korean judgment had been obtained by fraud by way of misrepresentations to the Korean court. After considering the evidence afresh, Dunford J concluded that the plaintiff’s evidence was unsatisfactory, that the Korean judgment had been obtained by fraud, and that enforcement in Australia should be refused. [page 926] 40.73 The issue was not considered by an Australian appellate court until Benefit Strategies Group Inc v Prider.224 In that case, Bleby J, sitting in a Full Court of the Supreme Court of South Australia, did no more than observe the difference of opinion between judges at first instance in Australia and acknowledge the widespread criticism of the English approach.225 The court was not required to choose between the competing points of view. There is a slight hint of support for Keele v Findley in Bleby J’s comment about the Australian cases that have followed the English decisions: ‘[E]ven if those decisions correctly represent the law of Australia …’.226 Although ‘even if’ does not suggest a ringing endorsement of Close and Yoon, neither does it constitute a resounding condemnation. The issue still remains open to be decided on principle by an Australian appellate court. 40.74 The reasons given by Rogers CJ CommD in Keele v Findley can only be described as compelling. Australian courts need no longer regard the English cases as binding. Principle favours rejection of the English rule, as the textwriters have long and unanimously argued. Most recently, the Keele view has

been accepted, albeit obiter, by the Supreme Court of New South Wales in XPlore Technologies Corp of America v Tough Corp Pty Ltd227 and Allardyce Lumber Co Ltd v Quarter Enterprises Pty Ltd (No 2) (a case about enforcement under the statutory scheme considered in Chapter 41).228

That the foreign judgment is contrary to public policy 40.75 A foreign judgment may be denied enforcement because it is founded on a law that is not acceptable to the public policy of the forum, such as a judgment for the wages of a prostitute, or an order for the maintenance of a child not confined to minority or other specified period.229 In Vervaeke v Smith,230 a Belgian annulment of a marriage celebrated in England between persons who had no intention of living together as husband and wife was refused recognition because the Belgian law which treated such marriages as void conflicted with the distinctive rule of English public policy, which regarded such a marriage as valid. 40.76 A foreign judgment may also be contrary to public policy because it was obtained in a manner obnoxious to the law of the forum, such as by duress231 or undue influence.232 However, except (perhaps) in the anomalous case of fraud (on which, see 40.70–40.74), the defence that public policy is offended by the method in which the judgment was obtained cannot be raised in the forum if a similar defence was available under the law of the foreign court.233 Foreign judgments affecting [page 927] personal status, for example, divorces, annulments and adoptions, have also been denied recognition under the discretionary power to refuse recognition if such orders have been obtained in circumstances abroad, or have an effect on a party in the forum, which is ‘contrary to substantial justice’.234 40.77 In Stern v National Australia Bank,235 Tamberlin J of the Federal Court of Australia held that recognition of a Californian judgment should not be denied on the ground that the Australian plaintiff had been guilty of conduct in breach of s 52 of the Trade Practices Act 1974 (Cth) (now the Australian Consumer Law, s 18) outside Australia. The defendant had argued that it would be offensive to Australian public policy to allow the plaintiff to enforce the

Californian judgment without allowing the defendant to raise a defence or counter-claim based on the plaintiff’s breach of s 52, unless an equivalent defence or claim were available in California. Tamberlin J rejected that argument, observing that denial of enforcement is only available when the offence to public policy is of a high order, as in cases involving fundamental questions of moral and ethical policy, fairness of procedure and illegality.236 Tamberlin J’s decision was affirmed by the Full Court of the Federal Court of Australia, which did not find it necessary to come to any decision on the public policy issue because of its conclusion on the evidence that the plaintiff had not breached s 52 in any event.237 40.78 Tamberlin J’s views in Stern were adopted by Atkinson J of the Supreme Court of Queensland in De Santis v Russo238 in the context of the equivalent defence to enforcement on grounds of public policy contained in the Foreign Judgments Act 1991 (Cth) s 7(2)(a)(xi). Atkinson J held that the Italian law of child maintenance, while different from its Australian counterpart, did not ‘so offend the essential principles of justice and morality’ that enforcement of an Italian judgment should be refused.239 However, Atkinson J’s decision to enforce the Italian judgment was overruled on other grounds by the Queensland Court of Appeal.240 In another case involving the public policy defence under the Act, Jenton Overseas Investment Pte Ltd v Townsing,241 Whelan J of the Supreme Court of Victoria said that the interests of comity require Australian courts to be slow to invoke public policy as a ground for refusing recognition or enforcement of a foreign judgment. In Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International BV (No 3),242 a case concerned with common law recognition, Edmonds J of the Federal Court of Australia accepted the proposition stated by Tamberlin J in Stern that ‘the extent to which the enforcement of a foreign judgment is contrary to public policy must be of a high order to establish a defence’. [page 928] 40.79 The trend of authority supports the proposition that the public policy ground for refusal of enforcement should be narrowly confined. The fact that Australian law would have produced a different result is in some sense evidence that Australian law has a different ‘policy’ from the relevant foreign law, but that should not be sufficient. The offence against Australian public policy should be profound before refusal to enforce is warranted. Anything less comes close to a

review of the merits of the foreign decision. The position is much the same in relation to the refusal on public policy grounds of enforcement of foreign arbitral awards under the New York Convention: see 43.9–43.11. 40.80 If an Australian court confirms a scheme of arrangement between a corporation and its creditors under the Corporations Act 2001 (Cth), the same court should refuse to enforce any foreign judgment affecting the rights of the parties to the scheme of arrangement. The scheme of arrangement adjusts the rights of the corporation in a manner that accommodates the rights and interests of the corporation itself, its members and creditors and also the interests of the Australian community in which it has been conducting business and incurring obligations. That compulsory adjustment of the contractual rights of the parties expresses a policy of a forum that must be taken to override any inconsistent allocation of rights embodied in a foreign judgment.243 40.81 In Schnabel v Lui,244 Bergin J of the Supreme Court of New South Wales ordered enforcement of a judgment for compensatory damages made by a federal court in California, but refused to enforce that part of the judgment attributable to an award of punitive damages. Bergin J held that because the purpose of the award of punitive damages was to punish the defendant for failing to comply with the court’s orders, that part of the judgment was penal in nature and so was unenforceable because of the exclusionary principle that Australian courts will not enforce a penal law either directly at the suit of a foreign government or indirectly in a suit between private citizens.245 It was possible and practicable to sever the unenforceable award of punitive damages from the award of compensatory damages, which was enforceable.246 However, in Benefit Strategies Group Inc v Prider,247 a Full Court of the Supreme Court of South Australia said, obiter, that not all foreign judgments for punitive damages are unenforceable on public policy grounds. The punitive damages in Schnabel were awarded as a sanction for failure to comply with the court’s orders, giving them what Bleby J in Prider called ‘an obvious “public” connotation’.248 Speaking for a unanimous court, Bleby J said that where the foreign court’s award of punitive damages is made to punish the defendant’s deliberate and callous disregard [page 929] of the plaintiff’s rights, the award has ‘no public element’ and enforcement of it

would not be contrary to the public policy of Australia, even if the amount awarded far exceeds what would have been awarded in an Australian court.249 The plaintiff in Prider had not sought to enforce the punitive damages component of the foreign judgment in that case, which was awarded to punish the defendant’s ‘brazen and fraudulent conduct’. That made the Full Court’s comments about the enforceability of foreign punitive awards obiter, but it would seem unwise for any plaintiff to make a similar concession in the future. The Full Court in Prider agreed with Bergin J in Schnabel that if part of a foreign award is unenforceable on public policy grounds, it should be severed from the enforceable component of the award for compensatory damages and costs, if it is practicable to do so.250

That the foreign court acted contrary to natural justice 40.82 The requirement of natural justice relates to the procedure of the foreign court. Traditionally it is seen as imposing two requirements: (1) each party must have had the opportunity of presenting his or her case before an impartial tribunal; and (2) each party must have been given due notice of the proceedings.251 40.83 A fair hearing is obviously denied if the court is composed of persons with an interest in the outcome of proceedings.252 However, the bias must be in the tribunal itself. It is no denial of natural justice that the court has unwittingly appointed as its official investigator a relative of one of the parties, provided the report made by the investigator was only evidence before the court and the party complaining of its bias had the opportunity of assailing it before the foreign court.253 It would also be a denial of natural justice if a party were not allowed to give evidence before, or address, a foreign court, but there is no denial of natural justice if the foreign rules do not permit either party to a suit to give evidence on their own behalf in the proceedings since both are put to the same procedural disadvantage.254 It is also a denial of natural justice if one party is prevented by the intimidation of the other party from conducting the proceedings in the foreign court.255 40.84 In dealing with allegations that the defendant was not given due notice of the foreign proceedings, Australian courts have been careful not to impose the standards of the forum on foreign courts.256 It would seem that if notice of proceedings has been dispensed with bona fide and in accordance with the rules

of the foreign court, [page 930] Australian courts will, generally speaking, allow the foreign judgment to stand.257 It matters not that the forum would not have dispensed with notice in the same situation,258 although a line would have to be drawn somewhere as in the case where the rules of a foreign court dispensed with the need of giving a foreign defendant any form of personal notification even in peacetime.259 There is, however, a denial of natural justice when the foreign court is prevailed upon to dispense with notice of the proceedings to the defendant by the fraud of the plaintiff. Thus, if a petitioner in foreign divorce proceedings falsely swears that he has no knowledge of the current address of his wife and obtains on the basis of such evidence an order dispensing with personal service, the resulting decree will not be recognised in Australia.260 40.85 In Boele v Norsemeter Holding AS,261 the plaintiff sought enforcement in New South Wales of a judgment given against the defendant, an Australian, by the Borgarting Court of Appeals in Norway. The defendant had successfully defended the case at first instance in Norway and had terminated his Norwegian lawyers’ retainer after being told that his case was a success. The plaintiff appealed and the defendant’s Norwegian lawyers filed a cross-appeal on his behalf and represented him in the appeal proceedings without informing him either of the appeal or the cross-appeal. The Borgarting Court of Appeal allowed the appeal and dismissed the cross-appeal. The plaintiff brought enforcement proceedings in New South Wales and sought summary judgment, relying on the Norwegian judgment. The New South Wales Court of Appeal held that summary judgment was inappropriate because the defendant had an arguable case that he was not afforded natural justice in relation to the appeal because he had not been given adequate notice. Although the question of due notice was to be considered with regard to the notice provisions of the foreign court,262 the New South Wales Court of Appeal held that there was not enough evidence to establish, to the level necessary for summary judgment, that notice to a lawyer constitutes due notice under Norwegian law even after that lawyer’s authority to represent his or her client has been terminated without that termination being reported to the court or the other side. 40.86 It was suggested by the English Court of Appeal in Jet Holdings Inc v

Patel263 that it is for the forum to determine whether the foreign court has denied natural justice. This would mean that, as in relation to fraud in enforcement proceedings in England (see 40.67–40.70), a defendant who has raised, or could have raised, the issue abroad might, if unsuccessful there, raise the matter again in the forum.264 In Adams v Cape Industries plc265 the English Court of Appeal suggested that where the denial of natural justice took the traditional form of lack of notice or opportunity [page 931] to be heard, the defendant should, as in relation to fraud, not be obliged to use any available remedy in the foreign court to challenge the judgment. Outside that core area there should generally be such an obligation unless, as in Adams, the defendant had no knowledge or means of knowledge of the procedural injustice in time to make use of the remedy in the foreign court. If the analogy of the English view of fraud applies, a defendant who raises the issue of denial of natural justice unsuccessfully in the original proceedings can raise it again in the forum, but a defendant who has applied to the foreign court to set the judgment aside and has failed may be estopped in the forum.266 40.87 The English Court of Appeal indicated in Adams v Cape Industries plc267 that the concept of denial of procedural natural justice is not confined to the two traditional grounds identified in 40.82 above, namely a failure to give notice or an opportunity to attend, but it also extends to other situations where the forum’s concept of substantial justice is infringed. In that case it was held to be contrary to natural justice that the foreign court entered judgment in default of appearance by the defendant, but without a hearing or a judicial assessment of the evidence in each individual case of several brought against the defendant, although required to do so by its own law. The defendant had been given notice of the proceedings and been given the opportunity to attend, but had not been notified that damages would be determined summarily without judicial assessment. In AK Investment CJSC v Kyrgyz Mobile Tel Ltd,268 the Privy Council said that: The true position is that there is no rule that the English court (or Manx court) will not examine the question whether the foreign court or the foreign court system is corrupt or lacking in independence. The rule is that considerations of international comity will militate against any such finding in the absence of cogent evidence.

In Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International BV (No 3),269 the Federal Court held that it should certainly not proceed on the basis that for these purposes the categories of public policy are unquestionably closed, given the paucity of cases (and even greater paucity of Australian cases) on the topic. Edmonds J seemed to accept the principle stated by the Privy Council in the AK Investment case, noting that the relevant question is whether there is sufficiently cogent evidence of bias or corruption in the foreign court. However, his Honour also noted that Adams does not support the proposition that the enforcing court should undertake an inchoate inquiry into the fairness of the foreign court’s procedure that travels beyond the traditional requirements of natural justice.270 40.88 The Court of Appeal’s decision in Adams constitutes a considerable expansion of the forum court’s power to refuse enforcement on grounds of a denial of natural justice, one that seems inconsistent with the general principle considered above in 40.33, namely that a foreign default judgment is enforceable as a final and conclusive judgment until the defendant actually takes steps in the foreign court to have it set aside. Similarly, unless the enforcing court is particularly insistent on receiving ‘cogent evidence’ of corruption or bias in the foreign court [page 932] before enforcement is refused, the views of the Privy Council in AK Investment and Edmonds J in Federal Treasury Enterprise have the potential to make substantial inroads into the general principle, based on comity, that a final and conclusive foreign judgment is entitled to enforcement (see 40.2).

That the foreign judgment is penal or a judgment for a revenue debt 40.89 The rule that penal or revenue judgments will not be enforced in the forum is an aspect of the general rule that Australian courts do not enforce foreign laws that are penal or revenue laws. The matter is discussed in Chapter 18. In some jurisdictions, a judge or magistrate trying a criminal action may add to the penalty imposed an award of compensation to the victim. In such a case

the penalty can be severed from the remainder of the judgment.271 Similarly, if an award of punitive damages is unenforceable (as to which, see 40.81), it can be severed from an award of compensatory damages, if it is practicable to do so.272

That the foreign court acted perversely in refusing to apply the appropriate law 40.90 This defence is doubtful, since it is impossible to say when the foreign court has acted ‘perversely’. The only authority supporting it is the old case of Simpson v Fogo,273 where Page Wood VC refused to give effect to a Louisiana judgment on the ground that the Louisiana court had perversely refused to apply English law, which the Vice-Chancellor considered properly applicable. The decision, which dates from 1862, was based on the assumption in accordance with the then prevailing vested rights theory (see 12.2–12.5) that the choice of law rules applied by English courts had universal validity. An English court might therefore say, without arrogance, that a foreign court that did not apply the same conflicts rule was perverse. 40.91 Today, such a proposition is obviously untenable. The matter was discussed by the House of Lords in Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2).274 Though none of their Lordships was prepared to state categorically that the defence of perversity did not exist, almost all of them agreed that English courts could not sit in judgment on the conflicts principles applied by foreign courts. However, that sensible view was not shared by Lord Simon in Vervaeke v Smith,275 who said: If, as I think, our choice of law rule … indicates English law as determinant of the validity of this marriage, it provides a potent reason for preferring the legally recognised

[page 933] English public policy and thus for refusing recognition to the Belgian judgment based on a contrary public policy.

It is submitted with respect, that if Lord Simon intended to indicate by his remarks that a foreign judgment based on foreign law could be denied recognition because an English court would have applied English law, it would

be a regression from the standards of international comity. Fortunately, the decision in Vervaeke v Smith can be explained on other grounds. 40.92 In Air Foyle Ltd v Center Capital Ltd,276 Gross J of the High Court of England and Wales quoted Simpson v Fogo as authority for a rather different, and more readily defensible proposition, namely that a foreign judgment has no effect if it is ‘perverse, in the sense that it is at variance with generally accepted doctrines of private international law’. It is difficult to be sure what Gross J meant by ‘generally accepted doctrines’, but if the foreign court applies a choice-of-law rule that is not only different from that of the forum court but also different from any of the rules normally applied in conflicts cases, then it might qualify as being sufficiently ‘perverse’ to warrant a refusal to enforce. For example, if the foreign court were to decide a transnational contract case by applying the law of the more populous nation, rather than the parties’ chosen law, the forum court could deny enforcement on the ground that the choice of law was perverse. Admittedly, it is difficult to think of examples that would fall within Gross J’s formulation of the rule, but that formulation has the considerable advantage of not sharing the parochialism of Lord Simon’s view.

That the party seeking enforcement or recognition is estopped from relying on the foreign judgment by reason of estoppel arising out of a prior judgment within the forum between the same parties and concerning the same issue or issues 40.93 If there is a conflict between a foreign judgment and an earlier judgment in the forum on the same matter between the same parties, the forum will prefer its own. This is the explanation of the decision in Vervaeke v Smith.277 That case concerned a marriage celebrated in London between Vervaeke, a Belgian prostitute, and Smith, a citizen of the United Kingdom in 1954, solely for the purpose of preventing Vervaeke’s deportation from the United Kingdom as an undesirable alien. The parties did not intend to cohabit and never did. In 1970 Vervaeke married her former employer, Messina, who died during the wedding feast. Vervaeke sought as his widow to assert her claim to his considerable investments in England. However, Smith was still alive and the prior marriage had not been dissolved. Vervaeke sought an annulment of her marriage to Smith on the ground that

she lacked consent because she was not aware of the true nature of the ceremony at the time. Her petition was dismissed by Ormrod J in Messina v Smith278 on a finding on the facts that she had been fully aware of the nature of the ceremony and had [page 934] consented to it. Subsequently, she returned to Belgium and obtained an annulment from a Belgian court on the ground that under Belgian law the parties did not intend to enter into a marriage but a sham relationship. She then applied to the English courts for recognition of the Belgian annulment and a consequential declaration that her marriage to Messina was valid. The House of Lords held unanimously that she was not entitled to either order on the ground that the English decree, which was earlier in time to the Belgian decree, made it res judicata that the English marriage was not rendered invalid on the ground of absence of consent. The Belgian proceedings were also based on an absence of consent although directed to the intention to cohabit and not to the nature of the ceremony. The appellant was estopped in England by cause of action estoppel from raising again a cause of action based on the alleged invalidity of the first marriage. She was also estopped by issue estoppel from raising again the issue of her consent to the first marriage in the proceedings for a declaration that the marriage to Messina was valid.279 40.94 It is obvious that a party cannot go shopping around to overturn an earlier decision. For example, in ED & F Man (Sugar) Ltd v Yani Haryanto (No 2),280 Haryanto sought a declaration that he was not bound by a contract for the sale of sugar to him by Man. The action was dismissed, as was Haryanto’s appeal. Haryanto and Man then entered into a settlement agreement, by which Haryanto agreed to pay Man US$9 million. Haryanto then sought and obtained judgment from a court in Indonesia annulling the settlement agreement and the underlying sale contract on which Man’s original claim had been based. The English Court of Appeal refused to recognise the Indonesian judgment because it was inconsistent with the earlier English decision. Similarly, if there is a conflict between two foreign decisions the earlier should prevail.281 It would seem also to follow that an earlier foreign determination should prevail over one in the forum.

The Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth) 40.95 The Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth) was enacted to protect Australian business from what is considered to be excessive jurisdiction exercised by foreign courts, particularly in the United States, in antitrust proceedings. Complaints have been made that the courts of that country have violated the territorial sovereignty of other states, including Australia, by purporting to exercise jurisdiction in respect of persons, matters or conduct outside the United States by reason of some alleged impact on business within the United States.282 [page 935] Furthermore, the award of treble damages authorised by the United States antitrust legislation (the Sherman Act) is considered excessive, although not penal in the conflictual sense.283 Section 9 of the Act allows the Federal Attorney-General to make a declaration in respect of a foreign antitrust judgment if he or she considers such to be desirable in the national interest, or considers the exercise of power by the foreign court to be contrary to international law or inconsistent with international comity or practice. The effect of the declaration is to prevent the enforcement of the judgment as a whole in Australia, or if the declaration specifies an amount of money, to limit enforcement to that sum of money. 40.96 If the plaintiff in the antitrust proceedings has recovered damages overseas on a judgment so barred, or in excess of the amount permitted by the declaration, s 10 permits the defendant to recover such damages or excess in proceedings in the Federal Court from the plaintiff and, in the case of a corporate plaintiff, any related corporation. Under s 11 the defendant may also recover reasonable costs and expenses incurred in the foreign antitrust proceedings. However, the recovery and costs provisions are only available to persons who are Australian citizens not ordinarily resident in the foreign country at the commencement of the antitrust proceedings, or a corporation incorporated in Australia, not having its principal place of business in the foreign country at the commencement of the antitrust proceedings, or an Australian government or public authority.284 The Act also makes provision in s 12 for the enforcement in

Australia of similar orders made under equivalent legislation in other countries with which Australia has entered into a reciprocal arrangement.285 40.97 Finally, under s 14 the Attorney-General may prohibit compliance with any foreign order or injunction requiring something to be done in Australia, or prohibiting the doing of something in Australia, or requiring a person to refrain from conduct in Australia. Such orders, not being of a monetary nature, would not at common law have been enforceable in Australia, but the existence of such a direction may be a defence to proceedings for non-compliance in the United States. _________________________ 1.

Benefit Strategies Group Inc v Prider (2005) 91 SASR 544 at 552, at [18] per Bleby J.

2.

R v McLeod (1890) 11 LR (NSW) 218 at 221 per Windeyer J.

3.

Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853. But query whether the court in the absence of evidence may rely on the presumption that the foreign judgment has the same effect as a similar judgment has under the law of the forum (at 927 per Lord Hodson).

4.

See Chapters 26 (divorce and annulments), 29 (status of children), 30 (adoption), 31 (mental incapacity), 36 (bankruptcy) and 35 (corporations).

5.

See 33.11–33.13.

6.

Herman v Meallin (1891) 8 WN (NSW) 38; Close v Arnot (SC(NSW), Graham AJ, 21 November 1997, BC9706194, unreported).

7.

Close v Arnot (SC (NSW), Graham AJ, 21 November 1997, BC9706194 at 14–15, unreported).

8.

Seegner v Marks (1895) 21 VLR 491.

9.

[1923] 2 WWR 553.

10. Sirdar Gurdyal Singh v Rajah of Faridkote [1894] AC 670. 11. See note 10 above. See also Bushfield Aircraft Co v Great Western Aviation Pty Ltd (1996) 16 SR (WA) 97 (presence of corporation at the time cause of action arose insufficient where no presence when initiating process was issued). 12. [2003] 3 SCR 416; 234 DLR (4th) 1. 13. See note 12 above, at [27]–[29]. 14. Club Resorts Ltd v Van Breda [2012] 1 SCR 572; 343 DLR (4th) 577. 15. See note 14 above, at [29]. 16. See, for example, Clarke v Lo Bianco (1991) 59 BCLR (2d) 334; 84 DLR (4th) 244; Federal Deposit Insurance Corp v Vanstone [1992] 2 WWR 407; 88 DLR (4th) 448. 17. Littauer Glove Corp v FW Millington (1920) Ltd (1928) 44 TLR 746 at 747 per Salter J. See also Bushfield Aircraft Co v Great Western Aviation Pty Ltd (1996) 16 SR (WA) 97. 18. Adams v Cape Industries plc [1990] Ch 433 at 530 per Slade LJ for the Court of Appeal; Norcast SarL v Bradken Ltd (No 2) [2013] FCA 235 at [255] per Gordon J. 19. Vogel v Kohnstamm Ltd [1973] 1QB 133. 20. Adams v Cape Industries plc [1990] Ch 433.

21. See, for example, Stoddard v Accurpress Manufacturing Ltd (1993) 84 BCLR (2d) 194; [1994] 1 WWR 677; Moses v Shore Boat Builders Ltd [1994] 1 WWR 112; 106 DLR (4th) 654 (BCCA); Disney Enterprises Inc v Click Enterprises Inc (2006) 267 DLR (4th) 291. 22. The Court of Appeal in Adams v Cape Industries plc [1990] Ch 433 at 457 expressed some support for this view without deciding the issue. Under the Federal Rules of Civil Procedure, r 4(2(k), jurisdiction in relation to claims arising under federal law may be based on ‘minimum contacts’ with the United States as a whole, even if the defendant is not subject to jurisdiction in any individual state: see World Tanker Carriers Corp v MV Ya Mawlaya, 99 F 3d 717 (5th Cir 1996). 23. Victorian Phillip-Stephan Photo-Litho Co v Davis (1890) 11 LR (NSW) 257. Compare Von Wyl v Engeler [1998] 3 NZLR 416 (CA) (held where there was no appearance by defendant in Swiss proceedings, there was no submission to jurisdiction, thus no enforcement of judgment). 24. Redhead v Redhead [1926] NZLR 131; Hendrikman v Magenta Druck & Verlag GmbH [1997] QB 426 (ECJ: Brussels Convention on Jurisdiction and Enforcement of Judgments 1968, Art 27(2)). Compare Boele v Norsemeter Holding AS [2002] NSWCA 363, where the defendant’s lawyers continued to represent the defendant during an appeal although the defendant had withdrawn the lawyers’ authority to represent him after the trial at first instance. It was held that the defendant had submitted to the jurisdiction of the court and (probably) the appeal court. 25. Malaysia Singapore Airlines v Parker (1972) 3 SASR 300. 26. Re Williams (1904) 2 N & S 183; Bushfield Aircraft Co v Great Western Aviation Pty Ltd (1996) 16 SR (WA) 97. 27. Schibsby v Westenholz (1870) LR 6 QB 155 at 166. 28. Burpee v Burpee [1929] 3 DLR 18. 29. Israel Discount Bank of New York v Hadjipateras [1983] 3 All ER 139. 30. (1885) 55 LJ QB 39 at 41. 31. McLean v Shields (1885) 9 OR 699 (Ont CA); Esdale v Bank of Ottawa [1920] 1 WWR; 51 DLR 485 (Alta CA); Carrick Estates Ltd v Young [1988] 1 WWR 261; 43 DLR (4th) 161 (Sask CA). 32. This partly follows the Civil Jurisdiction and Judgments Act 1982 (United Kingdom) s 31. See also Bannerton Holdings Pty Ltd v Sydbank Soenderjylland A/S (Fed C of A, Nicholson J, 9 February 1996, 133/1993, BC9600172, unreported) (describing reasons for passage of s 11). 33. [1914] 3 KB 145. 34. See also Martyn v Graham [2003] QDC 447 at [23] per Shanahan DCJ (defendant’s involvement in proceedings in Philippines went beyond merely noting an objection to the court exercising its jurisdiction). 35. [1978] QB 279 (Lord Denning MR and Shaw LJ; Goff LJ not deciding). 36. Ferdinand Wagner v Laubscher Bros & Co [1970] 2 QB 313. 37. Norsemeter Holding AS v Boele (No 1) [2002] NSWSC 370, reversed on other grounds as Boele v Norsemeter Holding AS [2002] NSWCA 363, but with obiter indication of some approval for this proposition at [23] per Giles JA (with whom Handley and Beazley JJA agreed). 38. See Harris v Taylor [1915] 2 KB 580; Re Dulles’ Settlement (No 2) [1951] Ch 842 at 850 per Denning LJ; NV Daarnhouwer & Co Handel Mij v Boulos [1968] Lloyd’s Rep 259. 39. [1976] QB 726. 40. Civil Jurisdiction and Judgments Act 1982 (United Kingdom) s 33(1). 41. [2002] I L Pr 617; [2002] EWHC 374 (Ch D), cited with approval by a majority of the United Kingdom Supreme Court in Rubin v Eurofinance SA [2013] 1 AC 236 at 282, at [159]–[160] per Lord Collins of

Mapesbury (with whom Lords Walker of Gestingthorpe and Sumption JJSC agreed). 42. See note 41 above, at 622, at [14]. 43. [2013] QSC 155. 44. [1998] 1 Lloyd’s Rep 90. The High Court of Australia had previously considered the same dispute between the same parties: Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418. 45. [1998] 1 Lloyd’s Rep 90 at 97 per Thomas J. See also Telesto Investments Ltd v UBS AG [2013] NSWSC 503 at [274] per Sackar J. 46. [1998] 1 Lloyd’s Rep 90 at 97 per Thomas J; Adams v Cape Industries plc [1990] Ch 433 at 461 per Scott J; The Eastern Trader [1996] 2 Lloyd’s Rep 585 at 599–601 per Rix J; Thyssen Inc v Calypso Shipping Corp SA [2000] 2 Lloyd’s Rep 243 at [20] per David Steel J; Starlight International Inc v Bruce [2002] I L Pr 35; [2002] EWHC 374 (Ch D). 47. [1998] 1 Lloyd’s Rep 90 at 97 per Thomas J. 48. [1976] QB 726. 49. Telesto Investments Ltd v UBS AG [2013] NSWSC 503. 50. See note 49 above at [268]–[272], per Sackar J, reasoning by analogy with earlier decisions about the interpretation of arbitration clauses. 51. Compare Von Wyl v Engeler [1998] 3 NZLR 416 (CA), where the defendant’s agreement to have service accepted by the foreign court itself as his agent was held not to amount to submission, because the foreign court refused to act in that capacity. 52. Copin v Adamson (1875) LR 1 Ex D 17. 53. [1962] 2 QB 116 at 123. 54. [1894] AC 670 at 686. 55. [1908] 1 KB 302 at 313–14. 56. [1973] 1 QB 133. Followed by Scott J in Adams v Cape Industries plc [1990] Ch 433 at 465–6. 57. Gordon Pacific Developments Pty Ltd v Conlon [1993] 3 NZLR 760 at 767 per Henry J. 58. Dunbee v Gilman & Co (Australia) Pty Ltd (1968) 70 SR (NSW) 219. 59. Keenco v South Australia & Territory Air Service Ltd (1974) 8 SASR 216. 60. [1951] Ch 842 at 851. 61. [1953] P 246 at 257. 62. [1960] 3 All ER 304n. 63. Felixstowe Dock & Ry Co v United States Lines Inc [1989] QB 360 at 373–6. 64. Sharps Commercials Ltd v Gas Turbines Ltd [1956] NZLR 819; Gordon Pacific Developments Pty Ltd v Conlon [1993] 3 NZLR 760. 65. Crick v Hennessy [1973] WAR 74; see also Malaysia-Singapore Airlines Ltd v Parker [1972] 3 SASR 300 at 304. 66. [2003] 3 SCR 416; 234 DLR (4th) 1. 67. See note 66 above, at [29]. 68. [1908] 1 KB 302 at 309. 69. [1962] IR 95. 70. SC (NSW), Sully J, 9 November 1989, BC8901479, unreported.

71. (2010) 79 NSWLR 425, cited with approval in Centrebet Pty Ltd v Baasland (2012) 272 FLR 69. 72. Bryson AJ’s conclusion was expressed in this way because the applicant did not seek enforcement of the foreign judgment, but rather an order for the taking of an account in New South Wales to give effect to the foreign judgment, in exercise of the court’s inherent jurisdiction to give effect to a foreign judgment in equity if there is sufficient connection between the defendant and the foreign court: see below, 40.40. 73. Warner v Fischer (1875) 13 SCR (NSW) 46. 74. Gavin Gibson & Co Ltd v Gibson [1913] 3 KB 379. 75. Jaffer v Williams (1908) 25 TLR 12 at 13 per Bucknill J. 76. [1923] 2 WWR 553. 77. [1908] 1 KB 302. 78. Bank of New Zealand v Lloyd (1898) 14 WN (NSW) 160. 79. Castrique v Imrie (1870) LR 4 HL 414. See also Readhead v Admiralty Marshal, Western Australia District Registry (1998) 87 FCR 229 at 242–3; 157 ALR 660 at 672 per Ryan J. 80. SS Pacific Star v Bank of America National Trust & Savings Assn [1965] WAR 159. 81. (1870) LR 4 HL 414 at 429. 82. Cammell v Sewell (1860) 5 H & N 728; 157 ER 1371. 83. [2013] 1 AC 236, citing Cambridge Gas Transport Corp v Official Committee of Unsecured Creditors of Navigator Holdings Plc [2007] 1 AC 508. 84. Re Macartney [1921] 1 Ch 522. 85. (1889) 15 App Cas 1 at 9. 86. Schnabel v Yung Lui [2002] NSWSC 15 at [77], [133] per Bergin J. 87. [1962] 2 QB 116. 88. (2010) 238 FLR 309. 89. The decision is about the operation of the requirements of the Foreign Judgments Act 1991 (Cth) (see generally Ch 41) but the principles are the same as those under consideration here; the court quoted and relied on Nouvion v Freeman. 90. Colt Industries Inc v Sarlie (No 2) [1966] 3 All ER 85. See also Bank Polska Kasa Opieki Spolka Akcyjna v Opara (2010) 238 FLR 309, where the foreign judgment that could be set aside by a ‘complaint procedure’ in the original proceedings was regarded as final and conclusive. 91. Mobi-Light Inc v KK Machinery Pty Ltd [2010] WADC 105. 92. See note 91 above. 93. JP Morgan Chase Bank NA v PT Indah Kiat Pulp and Paper Corp [2012] NSWSC 1279. 94. XPlore Technologies Corp of America v Tough Corp Pty Ltd [2008] NSWSC 1267. 95. In the Marriage of Kemeny (1998) 145 FLR 6; Bank Polska Kasa Opieki Spolka Akcyjna v Opara (2010) 238 FLR 309. 96. Schnabel v Yung Lui [2002] NSWSC 15 at [77] per Bergin J; Benefit Strategies Group Inc v Prider (2007) 211 FLR 113 at 115 per Gray J; XPlore Technologies Corp of America v Tough Corp Pty Ltd [2008] NSWSC 1267 at [17] per Rothman J; Telesto Investments Ltd v UBS AG [2013] NSWSC 503 at [188]–[189] per Sackar J. 97. Schnabel v Yung Lui [2002] NSWSC 15 at [77]–[80], [133] per Bergin J; Vanquelin v Bouard (1863) 15

CB (NS) 341; 143 ER 817. 98. Jeannot v Furst (1909) 25 TLR 424 at 425 per Bray J. 99. Ainslie v Ainslie (1927) 39 CLR 381; Barclays Bank Ltd v Piacun [1984] 2 Qd R 476; Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508; Re Dooney [1993] 2 Qd R 362. 100. Benefit Strategies Group Inc v Prider (2007) 211 FLR 113. 101. Davis v Davis (1922) 22 SR (NSW) 185. 102. See Chapter 27. 103. Beatty v Beatty [1924] 1 KB 807. 104. Schnabel v Yung Lui [2002] NSWSC 15 at [76] per Bergin J; Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853 at 927, 970. 105. [1962] 2 QB 116. 106. [2006] SASC 284. 107. [2010] WADC 105. 108. Taylor v Begg [1932] NZLR 286. 109. Houlditch v Marquess of Donegal (1834) 2 Cl & F 470; 6 ER 1232. See further, White, ‘Enforcement of Foreign Judgments in Equity’ (1982) 9 Syd LR 630. 110. [1990] 2 Qd R 191. 111. (2005) 222 ALR 676. 112. Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at 32–3; 153 ALR 643 at 658–9, at [35] per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 400–1; 162 ALR 294 at 307–8, at [41] per Gaudron, McHugh, Gummow and Callinan JJ. 113. See note 111 above, at 686–7. 114. (2010) 79 NSWLR 425. 115. (2006) 32 WAR 276. 116. Enforcement of the judgment, once finalised, would have been under the Foreign Judgments Act 1991 (Cth) (see Chapter 41) rather than at common law. 117. (2001) 24 WAR 53. 118. [2013] WASC 239. 119. [2013] NSWCA 102. 120. Walker v Witter (1778) 1 Doug 1 at 5, 6; 99 ER 1 at 3. 121. (1870) LR 6 QB 139 at 150. 122. See also SK Foods LP v SK Foods Australia Pty Ltd (in liq) (No 3) [2013] FCA 526 at [50]–[54] per Flick J (mistake by American judge as to Australian law did not preclude recognition of judgment in Australia). 123. See, for example, Ainslie v Ainslie (1927) 39 CLR 381 at 402 per Higgins J; Norsemeter Holding AS v Boele (No 1) [2002] NSWSC 370 at [14] per Einstein J (reversed on other grounds as Boele v Norsemeter Holding AS [2002] NSWCA 363); Benefit Strategies Group Inc v Prider (2005) 91 SASR 544 at 567 per Bleby J; RDCW Diamonds v Da Gloria [2006] NSWSC 450 at [31] per Rothman J; XPlore Technologies Corp of America v Tough Corp Pty Ltd [2008] NSWSC 1267 at [15] per Rothman J.

124. [2013] FCA 526. 125. See note 124 above, at [23] per Flick J. 126. Carl Zeiss Stiftung v Rayner and Keeler (No 2) [1967] 1 AC 853 at 917 per Lord Reid, at 925 per Lord Hodson; RDCW Diamonds v Da Gloria [2006] NSWSC 450 at [28] per Rothman J. 127. Harris v Harris [1947] VLR 44. See also Akai Pty Ltd v People’s Insurance Co Ltd [1998] 1 Lloyd’s Rep 90. 128. RDCW Diamonds v Da Gloria [2006] NSWSC 450 at [28]–[29] per Rothman J. 129. Hong Kong and Macao Glass Co v Gritton (1886) 12 VLR 128; RDCW Diamonds v Da Gloria [2006] NSWSC 450. 130. RDCW Diamonds v Da Gloria [2006] NSWSC 450 at [28] per Rothman J; Carl Zeiss Stiftung v Rayner and Keeler (No 2) [1967] 1 AC 853 at 917 per Lord Reid. 131. (1870) LR 6 QB 139. 132. Carl Zeiss Stiftung v Rayner and Keeler (No 2) [1967] 1 AC 853; RDCW Diamonds v Da Gloria [2006] NSWSC 450 at [28] per Rothman J. 133. [1963] NSWR 194. The rule that a cause of action does not merge in a foreign judgment has been abolished in England by the Civil Jurisdiction and Judgments Act 1982 (United Kingdom) s 34. 134. [2006] NSWSC 450. See also XPlore Technologies Corp of America v Tough Corp Pty Ltd [2008] NSWSC 1267 at [16] per Rothman J. 135. Republic of India v India SS Co Ltd: The Indian Grace (No 1) [1993] AC 410. 136. Kohnke v Karger [1951] 2 KB 670 at 675 per Lynskey LJ. 137. See note 136 above, at 675–6. 138. Black v Yates [1992] 1 QB 526 at 530, 540 per Potter J. See also Fulcrum Securities Ltd v Lake [2009] NSWSC 1202, holding that the defendant in enforcement proceedings under the Foreign Judgments Act 1991 (Cth) (see Ch 41) could not bring a cross-claim against the plaintiff based on issues not considered in the foreign proceedings. 139. [1992] QB 526. 140. See note 139 above, at 553 per Potter J. 141. Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406, affirmed on other grounds (1993) 43 FCR 510. 142. Black v Yates [1992] 1 QB 526. 143. SK Foods LP v SK Foods Australia Pty Ltd (in liq) (No 3) [2013] FCA 526. 144. (1986) 84 FLR 169; 10 Fam LR 858. See also In the Marriage of Kemeny (1998) 145 FLR 6; 23 Fam LR 105, a very similar dispute with an identical outcome; Taffa v Taffa (summary dismissal) [2012] Fam CA 181 (applying Miller and Caddy principle to found res judicata based on decision of Jaafarite religious court in Lebanon). 145. Black-Clawson International Ltd v Papierwerke AG [1975] AC 591. 146. Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 at 520 per Kirby P, at 526 per Clarke JA. 147. Republic of India v India SS Co Ltd: The Indian Grace (No 1) [1993] AC 410. 148. [1967] 1 AC 853 at 935. 149. (2004) 220 CLR 363 at 373; 208 ALR 1 at 7, at [21].

150. [1985] 1 WLR 490. 151. Armacel Pty Ltd v Smurfit Stone Container Corp (2008) 248 ALR 573 at 580–1, at [60] per Jacobson J. 152. [1985] 1 WLR 490 at 499. 153. Armacel Pty Ltd v Smurfit Stone Container Corp (2008) 248 ALR 573; Telesto Investments Ltd v UBS AG [2013] NSWSC 503 at [209]–[210] per Sackar J. 154. Castillon v P & O Ports Ltd (No 2) [2008] 2 Qd R 219 at [54]–[58] per Holmes JA. For this proposition in relation to domestic proceedings, see Makhoul v Barnes (1995) 60 FCR 572; Santos v Delhi Petroleum Pty Ltd [2002] SASC 272 at [399] per Lander J; Inasmuch Community Inc v Bright [2006] NSWCA 99 at [60] per Beazley JA. 155. Castillon v P & O Ports Ltd (No 2) [2008] 2 Qd R 219 at [55] per Holmes JA; Armacel Pty Ltd v Smurfit Stone Container Corp (2008) 248 ALR 573 at 581, at [63], [66] per Jacobson J. See also Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37 at 43 (NZCA). 156. Carl Zeiss Stiftung v Rayner and Keeler (No 2) [1967] 1 AC 853 at 918–19 per Lord Reid. 157. Telesto Investments Ltd v UBS AG [2013] NSWSC 503 at [211]–[222] per Sackar J. 158. Armacel Pty Ltd v Smurfit Stone Container Corp (2008) 248 ALR 573 at 580, at [59] per Jacobson J; Telesto Investments Ltd v UBS AG [2013] NSWSC 503 at [203] per Sackar J. 159. [1985] 1 WLR 490. 160. See note 159 above at 494 per Lord Diplock. 161. See note 159 above at 500 per Lord Brandon. 162. (2008) 248 ALR 573. 163. See note 162 above at 583, at [82]. See also Telesto Investments Ltd v UBS AG (2012) 262 FLR 119 at [133]–[136], where Ward J held that the decision of a Singapore court that the proceedings before her were ‘vexatious and oppressive’ created an issue estoppel precluding the plaintiff in the Australian proceedings from denying that they were acting vexatiously or oppressively, but nevertheless that was not determinative of her discretion about whether to stay the Australian proceedings on forum non conveniens grounds. 164. Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; 36 ALR 3. Anshun estoppel is sometimes called the rule in Henderson’s case because of its original source (traced by the High Court in Anshun) in Henderson v Henderson (1843) 3 Hare 100; 67 ER 313. 165. Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245. 166. (2010) 273 ALR 167. 167. [2013] NSWSC 503. 168. This question was also considered, without final resolution, in Talacko v Talacko [1999] VSC 81 at [48]–[52] per Ashley J; Commonwealth Bank of Australia v White (No 4) [2011] VSC 511 at [45] per Warren J. See also Charm Maritime Inc v Kyriakou [1987] 1 Lloyd’s Rep 433 (holding that the English equivalent of Anshun estoppel could be based on a foreign judgment); Israel Discount Bank of New York v Hadjipateras [1983] 3 All ER 129, considered below at 40.62. 169. (2010) 273 ALR 167 at 182, at [111]–[112] per Siopis J. 170. [2013] NSWSC 503 at [240], [247] per Sackar J. 171. Larnach v Alleyne (1862) 1 W & W 342 at 358 per Chapman J; Beer v Patrick (1880) 1 LR (NSW) 157; Re Annand (1888) 14 VLR 1009. 172. (1885) 6 ALT 156 at 157.

173. [1899] 1 Ch 781. 174. See note 173 above, at 791. This passage was quoted with approval in Norsemeter Holding AS v Boele (No 1) [2002] NSWSC 370 at [14] per Einstein J (reversed on other grounds as Boele v Norsemeter Holding AS [2002] NSWCA 363). See also Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport (2011) 91 IPR 438 at 450; [2011] FCAFC 69 at [52] per Rares J. 175. (1863) 15 CBNS 341; 143 ER 817. 176. See note 175 above, at 368. 177. Pemberton v Hughes [1899] 1 Ch 781 at 793. See also H E Read, Recognition and Enforcement of Foreign Judgments, Harvard University Press, Cambridge, Massachusetts, 1938, pp 93–100; Nussbaum, ‘Jurisdiction and Foreign Judgments’ (1941) 41 Col LR 221 at 231, 232. 178. Papadopoulos v Papadopoulos [1930] P 55. 179. See note 178 above at 66 per Lord Merrivale. 180. Benefit Strategies Group Inc v Prider (2005) 91 SASR 544 at 567, at [79] per Bleby J. 181. (1927) 39 CLR 381. 182. See note 181 above, at 393. 183. [1963] P 283. 184. SA General Textiles v Sun and Sand Ltd [1978] QB at 297 per Lord Denning MR. 185. Godard v Gray (1870) LR 6 QB 139. See also Ainslie v Ainslie (1927) 39 CLR 381 at 402 per Higgins J; Norsemeter Holding AS v Boele (No 1) [2002] NSWSC 370 at [14] per Einstein J (reversed on other grounds as Boele v Norsemeter Holding AS [2002] NSWCA 363); Benefit Strategies Group Inc v Prider (2005) 91 SASR 544 at 567 per Bleby J; RDCW Diamonds v Da Gloria [2006] NSWSC 450 at [31] per Rothman J. 186. Ellis v M’Henry (1871) LR 6 CP 228. 187. [1983] 3 All ER 129. 188. Such an argument was made in Bank Polska v Opara [2007] QSC 1 but the Supreme Court of Queensland did not find it necessary to decide the question. 189. [1983] 3 All ER 129 at 134. 190. Duchess of Kingston’s case (1776) 2 Sm LC (13th ed) 644; 168 ER 175. 191. Larnach v Alleyne (1862) 1 W & W (E) 342. 192. Price v Dewhirst (1837) 8 Sim 279; 59 ER 111. 193. Baden v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1993] 1 WLR 509 at 596–7 per Peter Gibson J. 194. Benefit Strategies Group Inc v Prider (2005) 91 SASR 544 at 557, at [37] per Bleby J. 195. See note 194 above, at 558, at [39] per Bleby J. 196. See note 195 above. 197. See note 196 above, at 559, at [42] per Bleby J (with whom Vanstone and Anderson JJ agreed). 198. See note 197 above. 199. (1890) 25 QBD 310. 200. See note 199 above, at 316–17. 201. [1948] 2 KB 443.

202. [1990] QB 335. 203. See note 202 above, at 346–7 per Staughton LJ. 204. [1983] 3 All ER 129. 205. House of Spring Gardens Ltd v Waite [1991] 1 QB 241. A co-defendant who did not join in the challenge in the foreign court may still be estopped: [1991] 1 QB 241. The correctness of this decision was accepted by the Court of Appeal in Owens Bank Ltd v Bracco [1992] 2 AC 443 at 472, where it was suggested that the raising of the issue of fraud in enforcement proceedings in a third country could create an estoppel. The speeches in the House of Lords did not refer to the issue. 206. [1992] 2 AC 443. 207. See note 206 above, at 488–9. 208. See note 206 above, at 489. 209. See Keele v Findley (1990) 21 NSWLR 445 at 457 per Rogers CJ CommD. 210. (1986) 6 NSWLR 534 at 541. 211. (1990) 21 NSWLR 444. 212. See note 211 above, at 457–8. 213. Norman v Norman (No 2) (1968) 12 FLR 39 at 47 per Fox J; Res Nova Inc v Edelsten (SC (NSW), Foster J, 17049/1980, 7 May 1985, BC8601318, unreported). 214. Jacobs v Beaver (1908) 17 Ont LR 496 at 506 per Garrow JA; McDougall v Occidental Syndicate Ltd (1912) 4 DLR 727; Manolopoulos v Pnaiffe [1930] 2 DLR 169. 215. (1890) 25 QBD 310. 216. Svirkis v Gibson [1977] 2 NZLR 4 at 10. 217. Dicey, Morris & Collins on the Conflict of Laws, Thomson Sweet & Maxwell, London, 15th ed, 2012, pp 728–31; Sykes and Pryles, Australian Private International Law, 3rd ed, LBC, Sydney, 1991, p 120. 218. The first decision in the line is the decision of the Court of Appeal in Abouloff v Oppenheimer (1882) 10 QBD 295. The requirement of extrinsic fraud in relation to domestic judgments was not settled by the House of Lords until Boswell v Coaks (No 2) (1894) 6 R 167. Courts in the United Kingdom have refused to review the Abouloff line of cases as recently as AK Investment CJSC v Kyrgyz Mobile Tel Ltd [2012] 1 WLR 1804 (PC). 219. SC (NSW), Graham AJ, 10107/1996, 21 November 1997, BC9706194, unreported. 220. [1992] 2 AC 443. 221. (1990) 21 NSWLR 444. 222. (2000) 158 FLR 295. 223. See note 222 above, at [22]. 224. (2005) 91 SASR 544. 225. See note 224 above, at 558–9, at [41]. 226. See note 225 above. 227. [2008] NSWSC 1267 at [19] per Rothman J. See, contra, Mobi-Light Inc v KK Machinery Pty Ltd [2010] WADC 105 at [44]ff, per Principal Registrar Gething. 228. (2012) 265 FLR 217; [2012] NSWSC 438, at [120]–[122] per Johnson J. 229. Re Macartney [1921] 1 Ch 522.

230. [1983] 1 AC 145. 231. Re Meyer [1971] P 298. 232. Israel Discount Bank of New York v Hadjipateras [1983] 3 All ER 139. 233. See note 232 above. 234. For a general discussion of public policy, see Chapter 18. 235. [1999] FCA 1421 at [133]–[147], BC9907269. 236. See note 235 above, at [143]. 237. (2000) 171 ALR 192 at 208 per Hill, O’Connor and Moore JJ. 238. (2001) 27 Fam LR 414 at 419, at [19]. 239. See note 238 above, at 420–1, at [22]. 240. [2002] 2 Qd R 230. 241. (2008) 21 VR 241 at 246, at [20] per Whelan J: see 41.16. 242. [2013] FCA 85 at [44] per Edmonds J. 243. Re Bulong Nickel Pty Ltd (2002) 26 WAR 466 at [18] per Heenan J; Re Glencore Nickel Pty Ltd (2003) 44 ACSR 210 at 217–18, at [39], [44] per McLure J. 244. [2002] NSWSC 15. 245. See generally Chapter 18. 246. Schnabel v Yung Lui [2002] NSWSC 15 at [180] per Bergin J. See also Lewis v Eliades [2004] 1 WLR 692, severing the unenforceable punitive component of an award of damages from an enforceable award of compensatory damages. 247. (2005) 91 SASR 544 at 552. 248. See note 247 above, at 565–6, at [72]. 249. See note 247 above, at 565–6, at [68], [73]. 250. See note 247 above, at 566, at [75], citing Raulin v Fischer [1911] 2 KB 93. 251. Boele v Norsemeter Holding AS [2002] NSWCA 363 at [24] per Giles JA; Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport (2011) 91 IPR 438 at 449; [2011] FCAFC 69 at [47] per Rares J. 252. Price v Dewhirst (1837) 8 Sim 279; 59 ER 111. 253. Jacobson v Frachon (1927) 44 TLR 103. 254. Scarpetta v Lowenfeld (1911) 27 TLR 509. 255. Jet Holdings Inc v Patel [1990] QB 335. 256. Igra v Igra [1951] P 404 at 412 per Pearce J; Boele v Norsemeter Holding AS [2002] NSWCA 363 at [28] per Giles JA. 257. Jeannot v Fuerst (1909) 25 TLR 429. 258. See note 257 above. 259. Buchanan v Rucker (1808) 9 East 192; 103 ER 546. 260. Terrell v Terrell [1971] VR 155. 261. [2002] NSWCA 363.

262. See note 257 above. 263. [1990] QB 335 at 345 per Staughton J. 264. [1990] Ch 433 at 569. 265. See note 264 abovek, at 568–71. 266. House of Spring Gardens Ltd v Waite [1991] 1 QB 241. 267. [1990] Ch 433 at 564–7. 268. [2012] 1 WLR 1804 at 1830. 269. [2013] FCA 85 at [49]–[50] per Edmonds J. 270. See note 269 above, at [45] per Edmonds J. 271. Raulin v Fischer [1911] 2 KB 93. 272. Schnabel v Lui [2002] NSWSC 15 at [180] per Bergin J; Benefit Strategies Group Inc v Prider (2005) 91 SASR 544 at 566, at [75] per Bleby J. See also Lewis v Eliades [2004] 1 WLR 692, severing the unenforceable punitive component of an award of damages from an enforceable award of compensatory damages. 273. (1863) 1 Hem & M 199; 71 ER 85. 274. [1967] 1 AC 853. 275. [1983] 1 AC 149 at 166. 276. [2003] 2 Lloyd’s Rep 753 at 761. 277. [1983] 1 AC 145. See also ED & F Man (Sugar) Ltd v Yani Haryanto (No 2) [1991] 1 Lloyd’s Rep 429. 278. [1971] P 322. 279. [1983] 1 AC 145 at 153–5 per Lord Diplock. 280. [1991] 1 Lloyd’s Rep 129. 281. Showlag v Mansour [1995] 1 AC 431; People’s Insurance Co of China, Hebei Branch v Vysanthi Shipping Co Ltd (The Joanna V) [2003] 2 Lloyd’s Rep 617. 282. The ‘effects test’ for extra-territorial application of the Sherman Act was first stated in United States v Aluminum Co of America, 148 F 2d 416 (2d Cir, 1945). The Supreme Court of the United States has since considerably modified the extra-territorial reach of the Sherman Act. In its most recent decision on the question, F Hoffmann-La Roche Ltd v Empagran SA, 542 US 155 (2004), a majority of the court referred to the need to ‘avoid unreasonable interference with the sovereign authority of other nations’ (at 164). 283. Huntington v Attrill [1893] AC 150. See generally Chapter 18. 284. Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth) ss 10(3), 11(2). 285. For example, the Protection of Trading Interests Act 1980 (United Kingdom).

[page 936]

Chapter 41

Enforcement of Foreign Judgments by Statute Introduction 41.1 To overcome the obvious difficulty of enforcing a foreign judgment at common law, as well as to simplify enforcement arrangements which had existed under state and territory laws,1 the Federal Parliament enacted the Foreign Judgments Act 1991 (Cth) (‘the Act’) to make certain overseas judgments to which the Act extends enforceable in Australia by registration, thereby obviating the need to bring a cumbersome common law action based on the judgment debt. The aim of the Act has been described as being to establish a nationwide Commonwealth state co-operative scheme in which each jurisdiction would in effect be regarded as identical to each other, and hence with results akin to what might have been achieved by a wholly Commonwealth scheme.2 41.2 The federal legislation follows the general pattern of the Foreign Judgments (Reciprocal Enforcement) Act 1933 (United Kingdom). Prior to its commencement on 27 June 1991 provision was made in each state and territory for the enforcement of foreign judgments on the basis of reciprocity.3 Those provisions continued to [page 937] apply to judgments registered under state or territorial law prior to 27 June 1991.4 The state and territorial legislation also continued to apply for a period of two years in relation to countries with which arrangements had not yet been made under federal legislation.5 That period expired on 27 June 1993, with the

result that, with the probable exception of the Foreign Judgments Act 1971 (SA),6 the state laws became ineffective and the Foreign Judgments Act 1991 (Cth) prevails as the sole statutory scheme.7 With the exception of judgments given by courts in New Zealand and the United Kingdom and judgments given in other countries to which the state and territorial law already applied, the Act does not apply to judgments given in a foreign court before the date on which the Act was extended to the country of that court.8 Thus, if a foreign court gave judgment between 27 June 1993 and the date on which the Act was extended to the country of that court, that judgment could only be enforced in Australia at common law.9 41.3 The federal legislation, like its state and territorial predecessors, does not apply to the enforcement of interstate judgments.10

The Courts to Which the Act Extends 41.4 The legislation is based on substantial reciprocity of enforcement, which has no connection with, or gives legislative support to, the theory, also described as based on ‘reciprocity’, whereby our courts are urged to recognise a foreign judgment rendered in a situation in which they would mutatis mutandis have exercised jurisdiction themselves.11 The legislation provides for the enforcement of judgments rendered by superior and specified inferior courts in countries to which the Act has been extended by regulation.12 Such an extension will only be made if substantially reciprocal arrangements have been made for the enforcement of judgments of Australian courts in the overseas country concerned.13 41.5 In the absence of specific provision in the relevant regulation, the legislation only applies to the enforcement of money judgments rendered in the first instance [page 938] by superior courts; that is, courts of the level and standing of a supreme court.14 The operation of the Act may be extended on the basis of substantial reciprocity to specified inferior courts in a particular country.15 Unless such a specification is made, a judgment rendered by a court at district or county court level or by a superior court on appeal from such a court cannot be enforced under the Act.16

Such a judgment must be enforced at common law.17 The Act may also be extended by regulation to prescribed non-money judgments of specified countries, again on the basis of substantial reciprocity.18 No provision has so far been made for the enforcement of non-money judgments from the courts of any country. 41.6 Regulations were made each year between 1992 and 1999. The Act now extends by virtue of the Foreign Judgments Regulations to the superior courts and specified inferior courts of: Alberta (including the Provincial Court of Alberta); Bahamas; British Columbia (including the Provincial Court of British Columbia); British Virgin Islands; Cayman Islands; Dominica; Falkland Islands; Fiji; France; Germany; Gibraltar; Grenada; Hong Kong Special Administrative Region of the People’s Republic of China;19 Israel; Italy; Japan; Korea; Malawi; Manitoba (including the Provincial Court of Manitoba); Montserrat; Papua New Guinea; Poland (including the District Court); St Helena; St Kitts and Nevis; St Vincent and the Grenadines; Seychelles; Singapore; Solomon Islands; Sri Lanka; Switzerland; Taiwan; Tonga; Tuvalu; United Kingdom (including the County Courts of England, Wales and Northern Ireland and the Scottish Sheriff Courts); and Western Samoa.20 The Foreign Judgments Regulation 1992 specifies in its Schedule the courts of the listed countries which are classified as ‘superior’ for the purposes of the Act. Notably, the Act does not extend to the judgments of any courts of the United States of America. United States judgments, if to be enforced in Australia, must be enforced under the common law principles for the enforcement of foreign judgments.21 New Zealand judgments are now dealt with under the Trans-Tasman Proceedings Act 2010 (Cth).22 41.7 The definition of ‘judgment’ includes a foreign arbitral award which under the law of the country where and under whose law it has been conducted has become enforceable in the same manner as a judgment.23 This provision includes foreign [page 939] arbitral awards covered by the International Arbitration Act 1974 (Cth), other than awards given by the International Centre for the Settlement of Investment Disputes (ICSID) between states and nationals of other states.24 41.8 The Act provides a method of enforcement by registration. Hence, the requirement that existed at common law that the judgment debtor should be

served within, or voluntarily submit to, the jurisdiction of the enforcing court does not apply and it is no objection to registration that the judgment debtor resides out of the jurisdiction.25 The judgment debtor, however, must be served with notice of registration26 and if the debtor resides abroad, this may be impossible to achieve unless specific provision is made in the rules of the court of registration for the service of such notice abroad.27 There is a close parallel between the enforcement by registration of the foreign judgment and the enforcement of a foreign arbitral award under the International Arbitration Act 1974 (Cth). Neither action involves any impairment of the enforcing court’s institutional integrity so as to render the Foreign Judgments Act 1991 (or the International Arbitration Act 1974) unconstitutional even though the local court plays no adjudicative role in the foreign judgment.28

What Judgments can be Registered 41.9 A plaintiff who has obtained a judgment of a superior court in an overseas country to which the Act extends may under s 6(1) within six years, or any longer period if extended by the court of registration,29 file an application30 in the supreme court of a state or territory for registration of the judgment. In the case of a money judgment given pursuant to the Commerce Act 1986 (NZ), application may also be made to the Federal Court of Australia and in the case of a non-money judgment [page 940] given under that Act application must be made to the Federal Court.31 There is no requirement that the judgment creditor intends to enforce the judgment in the state or territory in which it is registered, and the judgment creditor is at liberty to choose the state or territory in which the judgment is enforced.32 41.10 The judgment must be final and conclusive,33 although it may have been given in interlocutory proceedings.34 In Bank Polska v Opara35 it was held, by analogy with Nouvion v Freeman36 that certain Polish judgments which granted a bank an order to enforce a debt but which did not require the Court to consider the truth of the bank’s claim to be a creditor in a sum certain, were not final and conclusive within the meaning of the Act. A default judgment is final and conclusive even though it may be set aside on the defendant showing cause.37 A

judgment shall be taken to be final and conclusive even though an appeal is pending in the overseas country or the time for appealing in that country has not yet expired.38 In that event the court of registration may grant a temporary stay of the enforcement proceedings on condition, if need be, that the appeal be pursued in an expeditious manner.39 41.11 The judgment must be for a sum of money, unless it is a specified nonmoney judgment to which the Act has been extended.40 It must have been given in civil proceedings or on a civil claim in criminal proceedings,41 whereby a sum of money is payable.42 Orders of a Polish court by which the court bailiff may seize and deal with assets of a debtor to satisfy a debt which exists independently of the judgment do not meet the description of a money judgment under the Act.43 Judgments for taxes, fines and penalties are excluded, except New Zealand tax (including any penalties or interest) or Papua New Guinea tax (excluding any penalties or interest).44 Whether or not a judgment entails the enforcement of a claim for tax may raise questions of [page 941] characterisation.45 Punitive damages are not excluded from registration.46 An order for costs can also be registered.47 41.12 A foreign judgment is not registrable, if at the date of the application: (a) it has been wholly satisfied; or (b) it could not be enforced in the country of the original court.48 A foreign judgment may not be enforceable in the country of the original court if, for example, the relevant limitation period for its enforcement in the jurisdiction of the original court had run.49 41.13 If it has been partially satisfied, the judgment can only be registered as to the part unsatisfied.50 The existence of a procedural defect which may be grounds for setting aside the judgment does not affect its enforceability as long as it has not been set aside.51 41.14 If the judgment meets the requirements set out in the Act, the court has no discretion but ‘is to order the judgment to be registered’.52 Despite this, the court must refuse to register a judgment if it appears from the facts deposed to or from admissions made on the application for registration that the judgment, if

registered, is one which upon application by the judgment debtor the court would be bound to set aside.53 Applications for registration of a foreign judgment are usually made ex parte, there being no requirement in the Act or in the various rules of court for notice of intention to register to be given to the judgment debtor. There is, however, a requirement to serve notice on the judgment debtor following registration, and it is from the date of such notice that time runs for any application under section 7 of the Act for the judgment debtor to apply to set aside registration. Where a foreign judgment debtor gets wind of an application to register a foreign judgment, it may participate in that process but runs the risk of being met with arguments based on Anshun estoppel if it ‘keeps its powder dry’ and seeks to reserve arguments for any subsequent application to set aside registration pursuant to section 7 of the Foreign Judgments Act 1991.54 In Allerdyce Lumber Company Ltd v Quarter Enterprises Pty Ltd (No 2),55 Johnson J, whilst recognising the force of the Anshun principle, took the view that it was open to a judgment debtor which had participated at the section 6 registration stage to make arguments at a subsequent section 7 application which were not but could have been advanced at the earlier stage. [page 942] 41.15 Registration includes the reasonable costs of registration and any interest due under the law of the original court up to the date of registration.56 A judgment registered under the Act in the Supreme Court of a state or territory may be registered in the Supreme Court of another state or territory under Pt 6 of the Service and Execution of Process Act 1992 (Cth).57

When Registration must be Set Aside 41.16 Section 7(2)(a) of the Foreign Judgments Act 1991 (Cth) sets out the grounds on which registration must be set aside if established to the satisfaction of the court. The onus of satisfying the court rests upon the party seeking to set aside registration.58 The grounds are: (i)

that the judgment is not, or has ceased to be, a judgment to which [the Act] applies;

This means that the judgment is not a judgment of a court to which the Act extends or is not an ‘enforceable money judgment’ within the meaning of s 3(1)

of the Act or was given before the Act was extended to the country concerned:59 (ii) that the judgment was registered for an amount greater than was payable under it at the date of registration;

The judgment debt may have been overstated, or have been satisfied in part. In that case the court may order that the judgment be registered in respect of the amount still payable at the date of application:60 (iii) that the judgment was registered in contravention of [the] Act;

This applies if the judgment was wholly satisfied or not enforceable at the date of registration in the country of origin.61 In the latter case, the setting aside of the registration does not prejudice a new application for registration if and when the judgment becomes enforceable in the country of origin:62 (iv) that the courts of the country of the original court had no jurisdiction in the circumstances of the case;

The question under this heading is not whether the foreign court had jurisdiction under its domestic law, but whether, in the terms of the law of the place of registration, the foreign court was possessed of jurisdiction in the international sense. The Act defines in s 7(3) when, as regards a judgment given in an action in personam, an action in rem or an action belonging to neither of these two categories, the foreign [page 943] court shall be deemed to have had jurisdiction for the purposes of this paragraph.63 It would seem that the conditions set out are exhaustive, and if the jurisdiction of the foreign court falls outside the statutory definition, it could not be recognised under the Act, even though it would have been entitled to recognition at common law.64 The statutory provisions and thus the circumstances in which the courts of the country of the original court will have lacked jurisdiction are discussed in more detail at 41.18–41.25 below: (v) that the judgment debtor … did not … receive notice of the proceedings in sufficient time to enable the judgment debtor to defend the proceedings and did not appear;

‘Proceedings’ in this paragraph relates to the action for principal relief only and it is no objection that the defendant did not receive notice of interlocutory proceedings in the foreign court.65 In Barclays Bank Ltd v Piacun,66 the

Queensland Full Court held that a failure to give notice of proceedings abroad resulting in a default judgment was not cured by giving the defendant notice of the registration of that judgment in Queensland, even though the defendant under the terms of that notice had ample time to seek to set aside the default judgment abroad. ‘Notice’ means actual notice, so that such modes of service as the sticking up of notices, substituted service by advertisement, service by post to the last known place of address, and the like, are excluded.67 Giving someone ‘notice of the proceedings’ has been held to require more than simply informing them that proceedings either exist or will exist.68 Any knowledge of circumstances indicating the likelihood of proceedings, or notice of proceedings but only after judgment, is irrelevant.69 The onus is on the judgment debtor to satisfy the court that he or she did not receive sufficient notice of the foreign proceedings.70 If the judgment debtor fails to do this, with the consequence that the registration of the foreign default judgment is not set aside, the judgment takes effect as a final judgment of the registering court; it may not be the subject of a ‘local’ application by reference to the principles applicable for the setting aside of default judgments:71 (vi) that the judgment was obtained by fraud;

This has the same meaning as the defence of fraud to an action at common law to enforce a foreign judgment debt and the same conditions apply.72 Such an allegation is not to be lightly made, and the procedural and ethical constraints relating to the [page 944] making of such allegations generally should also apply in this context.73 In Allerdyce Lumber Company Ltd v Quarter Enterprises Pty Ltd (No 2),74 Johnson J emphasised that such a challenge involves neither an appeal from the decision of the foreign court nor a retrial of the action, and that the making of a submission to the foreign court that was wrong ‘is clearly not enough’. Intentional and deliberate misleading of the foreign court is required to be demonstrated. Johnson J also expressed strong support for the view, expressed in the common law enforcement context in Keele v Findley,75 that to sustain an argument to the effect that the foreign judgment was obtained by fraud, the material to be relied upon must not have been available to the party advancing the argument at the time the foreign judgment was obtained:76

(vii) that the judgment [was] reversed on appeal or set aside in the … country of the original court; (viii)that the rights under the judgment are not vested in the person by whom the application for registration was made; (ix) the judgment has been discharged; (x) the judgment has been wholly satisfied;

Sywak v Sywak was a case where, subsequent to registration in Australia of an English judgment in an amount expressed in Australian dollars, the original English judgment was satisfied by the payment in England in English pounds sterling. The fact that, by reason of currency movements, that which was paid in England amounted to less than what would have satisfied the registered Australian money judgment did not prevent the Court from reaching the conclusion that the foreign judgment had been wholly satisfied, with the consequence that registration of the foreign judgment in Australia was set aside:77 (xi) that enforcement of the judgment, not being a judgment [for the payment of] New Zealand tax, would be contrary to public policy.

Apart from barring judgments that are immoral or offensive to local policy, the Act also incorporates the common law rule that our courts will not enforce judgments based on penalties or revenue debts.78 The concept of public policy in the Act plainly derives from common law principles concerning the recognition and enforcement of foreign judgments and, as such, it has been said that these common law principles provide assistance in construing this aspect of the Act.79 In Jenton Overseas Investment Pte Ltd v Townsing,80 Whelan J, after a review of relevant authorities, held that: … substantial injustice, either because of the existence of a repugnant law or because of a repugnant application of the law in a particular case, may invoke the public policy ground. But it will only do so where the offence to public policy is fundamental and of

[page 945] a high order. For the public policy ground to be invoked in this context enforcement must offend some principle of Australian public policy so sacrosanct as to require its maintenance at all costs.

In that case, Whelan J rejected on the facts a submission that the judgment should not be enforced on public policy grounds because the foreign court had ‘completely failed to address the critical issue’ so that there ‘had not in truth been a hearing at all’. In Bank Polska v Opara,81 McMurdo J entertained (but

rejected on the facts) a public policy defence to the Bank’s attempt to enforce a Polish judgment on a wife’s third party guarantee on the basis of principles associated with Garcia v National Australia Bank Ltd.82 This aspect of the decision was strictly obiter, and it may be doubted whether such a defence legitimately falls within the narrow conception of what is ‘contrary to public policy’ in this context. 41.17 In addition, the registration of the judgment may be set aside pursuant to s 7(2)(b) of the Act if the court of registration is satisfied that the matter adjudicated upon has before the date of judgment in the original court been the subject of a final and conclusive judgment by a court having jurisdiction in the matter.83 This provision permits recognition to be given to the doctrines of res judicata and issue and cause of action estoppel. The earlier judgment need not be a judgment of an Australian court.

The Jurisdiction of the Foreign Court 41.18 For the purpose of determining whether the foreign court acted with jurisdiction, the Act in s 7(3) gives a definition of jurisdiction depending on whether the judgment is based on an action in personam, an action in rem or an action which falls in neither category.

Actions in personam 41.19 The term ‘action in personam’ does not include any proceedings in connection with matrimonial matters;84 the administration of the estates of deceased persons; bankruptcy or insolvency; winding up of companies; mental health or the guardianship of infants.85 41.20 In the case of a judgment given in an action in personam, the foreign court is deemed by s 7(3)(a) of the Act to have had jurisdiction in the following circumstances: [page 946] (i)

if the judgment debtor voluntarily submitted to the jurisdiction of the original court;

In Zeta-PDM Ltd v Petro Technology Australia Pty Ltd,86 Sanderson M rejected

the creative contention that voluntary submission could be inferred from a failure to protest the foreign court’s jurisdiction at the time it was being exercised in circumstances where such a protest could be made without prejudice in the sense that s 7(5)(d)–(e) of the Foreign Judgments Act 1991 would not render such a protest a submission to the foreign court’s jurisdiction. It is further provided in s 7(5) that a person does not voluntarily submit to the jurisdiction of a court by entering an appearance or participating in the proceedings in that court for the purpose only of one or more of the following: (c) protecting, or obtaining the release of: (i)

property seized, or threatened with seizure, in the proceedings; or

(ii) property subject to an order restraining its disposition or disposal; (d) contesting the jurisdiction of the court; (e) inviting the court in its discretion not to exercise its jurisdiction in the proceedings.

This provision amends the common law definition of submission. It ensures that a party who has unsuccessfully protested the jurisdiction of the foreign court without taking a further part in those proceedings, can object to the registration of the judgment in Australia.87 An appeal from a default judgment is a submission not only to the jurisdiction of the appellate tribunal but also to the jurisdiction of the court appealed from:88 (ii) if the judgment debtor was plaintiff in, or counter-claimed in, the proceedings in the original court;

This paragraph reflects the common law position: (iii) if the judgment debtor was a defendant in the original court and had agreed, in respect of the subject matter of the proceedings, before the proceedings commenced, to submit to the jurisdiction of that court or of the courts of the country of that court;

This paragraph refers not only to a contractual agreement but to any written or oral statement made before the commencement of the proceedings whereby the defendant indicates a willingness to submit to the jurisdiction of the foreign court:89 (iv) if the judgment debtor was a defendant in the original court and, at the time when the proceedings were instituted, resided in, or (being a body corporate) had its principal place of business in, the country of that court;

This paragraph appears to be more stringent than the common law, in so far as corporations are concerned. At common law the presence of a branch office or even

[page 947] a contractual agency would suffice. It is to be assumed that the courts will interpret the words ‘resided in’ in the same sense as the word is used in Emanuel v Symon;90 namely that a temporary presence will suffice: (v) if the judgment debtor was a defendant in the original court and the proceedings in that court were in respect of a transaction effected through or at an office or place of business that the judgment debtor had in the country of that court;

This paragraph is broader than the common law, which does not permit an individual to be ‘present’ in a foreign jurisdiction by an agent or an employee. Even a corporation, at common law, in order to be ‘present’ must do business at, and not merely through, its agency: (vi) if there is an amount of money payable in respect of New Zealand tax91 under the judgment.

Actions in rem 41.21 In the case of a judgment given in an action where the subject matter was immovable property, or in an action in rem where the subject matter was movable property, the original court is by s 7(3)(b) of the Act deemed to have jurisdiction if the property in question was situated within its jurisdiction at the time of the proceedings in that court. This relates to actions in rem in admiralty or in actions in which the title or possession of property is in issue. An action in contract concerning land, such as an action for breach of a contract for the sale of land, is an action in personam.92

Other actions 41.22 Finally, it is provided in s 7(3)(c) that in the case of a judgment given in an action which does not fall within either of the foregoing descriptions, the foreign court is deemed to have had jurisdiction if the jurisdiction of the original court is recognised by the law of the place of registration. 41.23 This obscurely worded clause means that judgments which fall outside the definition of judgments in personam, judgments concerning immovables, or judgments in rem concerning movables, are entitled to recognition if the foreign court exercised a jurisdiction which would have been entitled to recognition under the law of the forum apart from the Act. A judgment which falls within the above definitions of a judgment in personam or in rem but is not entitled to

registration under the Act, does not come within this third category even though it would have been entitled to recognition at common law.93 41.24 The most logical interpretation is that the third category consists of judgments given in matters expressly excluded from the definition of ‘action in personam’ [page 948] such as matrimonial matters, the administration of deceased estates, bankruptcy, liquidation and the like, in so far as they are expressed in monetary terms. Whilst the legislation does not permit the recognition, as such, of foreign decrees affecting status, such as divorces and annulments,94 this category does permit, as was held by the National Court of Papua New Guinea in Van der Kreek v Van der Kreek95 the registration of an order for the payment of money by way of property settlement made in proceedings ancillary to proceedings for divorce. 41.25 In each of the above categories the foreign court shall not be recognised as having had jurisdiction if (i) the subject matter of the proceedings was immovable property situated outside the country of the original court; (ii) except in the case of voluntary submission or in relation to actions which do not fall within the definition of either an action in personam or in rem, the bringing of the proceedings in the foreign court was contrary to an agreement between the parties that the dispute was to be settled elsewhere;96 or (iii) the judgment debtor was entitled to sovereign, diplomatic or consular immunity.97

Effect of Registration 41.26 A judgment registered under the Act has, for the purposes of enforcement, the same force and effect and proceedings may be taken thereon and control exercised over it, as if the judgment had been originally given in the court of registration.98 However, registration does not constitute recognition of the underlying right or cause of action that gave rise to the foreign judgment, so that any enforcement processes after registration are not for the purpose of enforcing that underlying right or cause of action.99 Similarly, where a registered foreign judgment is relied upon for the purposes of Australian bankruptcy proceedings, any foreign limitation period applicable to the underlying right will have no effect in proceedings ‘taken on’ the registered judgment within the

meaning of s 6(7)(b) of the Act, nor will a potential application in the original court to set aside the summary judgment which had been registered.100 41.27 It is possible to take proceedings on a judgment registered under the Act that are not strictly speaking execution proceedings, such as the issue of a bankruptcy notice.101 Execution shall not issue, however, if it is competent for any party to [page 949] make application to have the registration of the judgment set aside or, where such application is made, until after it has been finally determined.102 But once the time for setting aside registration has expired, a stay of execution should only be granted in the circumstances where execution on a local judgment would have been stayed since a registered judgment must be treated as such.103 41.28 Where the sum payable under the foreign judgment is expressed in foreign currency, it shall be registered at the option of the judgment creditor in the currency in which it is expressed, or otherwise, as if it were expressed in Australian currency on the basis of the rate of exchange prevailing on the second business day (the conversion day) before the day on which the application for registration is made.104 The rate of exchange prevailing on the conversion day is the average of the rates at which Australian dollars may be bought in the currency of the judgment at 11 am on that day from three authorised foreign exchange dealers selected by the judgment creditor.105 If a judgment is registered for an amount calculated otherwise than in accordance with these provisions, the registration of that judgment must be set aside, at least where the contravention is deliberate.106 41.29 If a judgment can be registered under the Act no proceedings will lie for the recovery of a sum payable under that judgment other than by way of registration.107 This provision does not, however, preclude reliance on an unregistered foreign judgment as a basis for the service of a statutory demand because, by serving such a demand, the creditor does not attempt to recover the relevant debt.108 41.30 However, a foreign judgment to which the Act applies or would have applied if a sum of money had been payable under it, shall, even if it is not registered or could not be registered, be recognised in any court of the enacting

jurisdiction as conclusive between the parties to it in all proceedings founded on the same cause of action and may be relied upon by way of defence or counterclaim.109 This provision does not apply if the judgment was set aside or could have been set aside if it had been registered or been capable of being registered, on any ground other than: (i)

that it was not for a sum of money, or

(ii) that it had been satisfied in whole or in part, or (iii) that it could not have been enforced by execution in the foreign country.110

41.31 Nothing in this provision prevents any court in the forum from recognising a judgment as conclusive of any matter of law or of fact decided therein if that judgment would have been so recognised before the commencement of the Act.111 [page 950] The House of Lords in Black-Clawson International Ltd v Papierwerke AG,112 by a majority have interpreted ‘judgment’ in this section to refer to the decision on the merits of the action and not merely to the dispositive part of the judgment whereby either damages are awarded or the suit dismissed. In that case, the plaintiff in English proceedings had previously brought an action in Germany on the same cause of action. This action had been dismissed in the German court as it was statute-barred under German law. No decision had been given on the merits. The House held that the English action, not being statute-barred under English law, could proceed, since the German judgment was not conclusive as to the merits of the actual dispute. The reasoning in this decision may well be different today (and certainly if the issue were litigated in Australia) given the characterisation of statutes of limitation as substantive and not procedural.113

New Zealand Judgments 41.32 A new and bespoke regime for the enforcement of New Zealand judgments in Australia is contained in Pt 7 of the Trans-Tasman Proceedings Act 2010. Under Pt 7, not only are New Zealand money judgments able to be enforced through a system of registration (as is already the case under the Foreign Judgments Act 1991 (Cth)) but also non-money judgments given by

New Zealand courts, as well as judgments given by a New Zealand court in criminal proceedings consisting of a requirement to pay an injured party a sum of money by way of compensation, damages or reparation; judgments consisting wholly of a regulatory regime criminal fine which meets the conditions (if any) prescribed by the regulations; judgments in New Zealand market proceedings; and judgments registered in a New Zealand court under the Reciprocal Enforcement of Judgments Act 1934 (NZ). Certain judgments are excluded from registration including orders under proceeds of crime legislation, an order relating to the granting of probate or letters of administration of the estate of a deceased person, a guardianship order and orders relating to the care, control or welfare of a child. 41.33 Under the Act, judgments are required to be registered within six years of the day after the judgment (or any appeal judgment) was given. The grounds upon which registration must or may be set aside are more limited than under the Foreign Judgments Act 1991 (Cth). The only circumstances in which registration of a New Zealand judgment must be set aside are where: (a) the judgment is contrary to Australian public policy; (b) the judgment was registered in contravention of the Act; or (c) the subject matter of the judgment given was either immovable property, or was an in rem judgment given in respect of movable property, where neither the immovable nor movable property was situated in New Zealand. [page 951] Importantly, under the Act, it is not be a ground for refusing or prohibiting enforcement of a New Zealand judgment that the judgment involves the enforcement in Australia of a New Zealand public law, including in relation to the payment of New Zealand tax or the imposition of a New Zealand civil pecuniary penalty or regulatory regime criminal fine. _________________________ 1.

See Re Cryonic Medical [2002] VSC 338 at [7].

2.

See note 1 above, at [8].

3.

Foreign Judgments Act 1954 (ACT); Foreign Judgments Act 1955 (NT); Foreign Judgments Act 1973 (NSW); Reciprocal Enforcement of Judgments Act 1959 (Qld); Foreign Judgments Act 1963 (Tas); Foreign Judgments Act 1962 (Vic); Foreign Judgments Act 1963 (WA). The Foreign Judgments Act

1971 (SA) stands in a slightly different category. Whilst making provision for registration of foreign judgments on the basis of reciprocity, as reflected in a proclamation by the Governor of South Australia, provision is also made in s 5 of the Act for registration of a foreign judgment if:

(a) the jurisdiction of the original court in the cause of action is recognised under the rules of private international law, and the judgment is final and conclusive; or (b) the circumstances in which jurisdiction was assumed by the original court justify recognition of the judgment on the basis of comity and the judgment is final and conclusive; or (c) it is, in the opinion of the court, just and equitable that the judgment be enforced pursuant to the provisions of this Act. Curiously, no attempt appears to have been made to take advantage of the provisions of this Act in Benefit Strategies Group Inc v Prider (2005) 91 SASR 544. 4.

Foreign Judgments Act 1991 (Cth) s 19(a).

5.

See note 4 above, at ss 18(1), 19(b).

6.

As explained in note 3, this Act adopted a different model for the enforcement of foreign judgments to that in other states and territories.

7.

Morf-Zinggeler v Morf [1999] WASC 96, BC9904142; Ki Won Yoon v Young Dung Song (2000) 158 FLR 295; Re SA Cryonic Medical [2002] VSC 338. The Foreign Judgments Act 1973 (NSW) was repealed by s 6(1) and Schd 4 of the Civil Procedure Act 2005 (NSW). The foreign judgments legislation of the Australian Capital Territory, Northern Territory, Queensland, Tasmania and Western Australia, referred to in note 3, has also been repealed.

8.

Foreign Judgments Act 1991 (Cth) s 5(8).

9.

Ki Won Yoon v Young Dung Song (2000) 158 FLR 295. See Ch 41 for enforcement of foreign judgments at common law.

10. This is governed by Pt 6 of the Service and Execution of Process Act 1992 (Cth). 11. Sharps Commercials Ltd v Gas Turbines Ltd [1956] NZLR 819; Gordon Pacific Developments Pty Ltd v Conlon [1993] 3 NZLR 760. 12. See 41.6 below. 13. Foreign Judgments Act 1991 (Cth) s 5(1), (3), (6). 14. See note 13 above, at s 5(1). 15. See note 13 above, at s 5(3). Where this has been done, the specified foreign courts are identified in the Foreign Judgments Regulations. 16. See note 13 above, at s 5(9). See Belmont v Fitzpatrick [1973] 2 NZLR 532 and Gros v Jones [2011] NSWSC 1605. 17. Gros v Jones [2011] NSWSC 1605. 18. See note 13 above, at s 5(6), (7). 19. The continued presence of Hong Kong in the list of recognised countries conclusively establishes for these purposes that reciprocity of treatment is still afforded Australian judgments after the return of Hong Kong to Chinese rule in 1997, even if doubts are raised about whether that is true in practice: DS

Parklane Developments Pty Ltd v Korea First Finance Ltd (SC (NSW), Santow J, 20 August 1997, 2776/97, BC9703785, unreported); MindShare Communications Ltd v Orleans Investments Pty Ltd [2000] FCA 521, BC200001897 at [37] per Katz J. 20. Foreign Judgments Regulations (Amendment) 1993 (Cth) Sch. 21. See Chapter 40 above and see, for example, Jani-King Franchising Inc v Jason [2013] QSC 155. 22. See 41.33–41.34 below. 23. Foreign Judgments Act 1991 (Cth) s 3(1) definition of ‘judgment’ para (c). 24. See note 23 above. See Chapter 43 below in relation to the enforcement of foreign arbitral awards generally. 25. Hunt v BP Exploration Co (Libya) Ltd (1979) 144 CLR 565; Hunt v BP Exploration Co (Libya) Ltd [1981] 1 NZLR 209. The rule-making power conferred by s 17 of the Foreign Judgments Act 1991 (Cth) has been held to authorise uniform rules for the grant of freezing orders over local assets in circumstances where it is anticipated that a foreign judgment will be registered in Australia but there is demonstrated to be danger that the prospective judgment debtor will dissipate those assets unless frozen: BCBC Singapore Pte Ltd v PT Bayan Resources TBK [No 3] [2013] WASC 239. 26. Fed C of A: O 74 r 6(1); ACT: Court Procedure Rules 2006, Reg 3497; NSW: UCPR r 53.6; Qld: Supreme Court (Foreign Judgments) Rules 1993 r 10(1); Tas: Supreme Court Rules, r 721; Vic: Supreme Court (Miscellaneous Civil Proceedings) Rules 1998 s 11.19; WA: RSC O 44A r 8(1). 27. BP Exploration Co (Libya) Ltd v Hunt [1980] 1 NSWLR 496. Provision for such service is made in Fed C of A: O 8 r 3; NSW: UCPR r 11.5; NT: SCR r 7.06(c); Qld: UCPR r 127(b);Vic: Supreme Court (Miscellaneous Civil Proceedings) Rules 1998 s 11.19. 28. Ashjal Pty Ltd v Alfred Toepfer International (Australia) Pty Ltd [2012] NSWSC 1306 at [84]–[85]; TCL Air Conditioner (Zhongshang) v The Judges of the Federal Court of Australia (2013) 295 ALR 596; 87 ALJR 410. 29. Foreign Judgments Act 1991 (Cth) s 6(5) and see Sywak v Sywak (2009) 236 FLR 471. 30. The relevant time is the date of filing the application: Re Reciprocal Enforcement of Judgments Act 1959 and the High Court of Borneo (SC (Qld), Derrington J, 7 January 1984, unreported). 31. Foreign Judgments Act 1991 (Cth) s 6(2). 32. Re SA Cryonic Medical [2002] VSC 338 at [8]–[10]. 33. Foreign Judgments Act 1991 (Cth) s 5(4)(a); and see Ch 40 above in respect of this requirement at common law. 34. See note 33 above, at s 3(1) definition of ‘judgment’, para (a). 35. (2010) 238 FLR 309. 36. (1890) LR 15 App Cas 1. 37. Barclays Bank Ltd v Piacun [1984] 2 Qd R 476; see also Vetreria Etrusca SRL v Elitepack Pty Ltd [2008] NSWSC 496. 38. Foreign Judgments Act 1991 (Cth) s 5(5). 39. See note 38 above, at s 8(1)–(4). 40. See note 38 above, at s 5(4), s 3(1) definition of ‘enforceable money judgment’. No regulation has as yet been made pursuant to s 5(6) in respect of non-money judgments. 41. See note 38 above, at s 3(1) definition of ‘judgment’, para (b). See Black v Yates [1992] 1 QB 526. 42. See note 38 above, at s 3(1) definitions of ‘judgment’ and ‘money judgment’.

43. Bank Polska v Opara (2010) 238 FLR 309 at 323–325. 44. See note 38 above, definition of ‘enforceable money judgment’. But see Taxation Administration Act 1953 (Cth) Sch 1 Div 263 in relation to ‘mutual assistance in collection of foreign tax debts’ which has application where Australia has entered into a treaty with a foreign country or territory containing an article relating to assistance in the collection of foreign tax debts. Such treaties are in force with France and Norway: see Jamieson v Commissioner for Inland Revenue [2007] NSWSC 324. 45. Her Majesty’s Revenue and Customs v Hashu Dhalomal Shahdadpuri [2011] SGCA 30; Revenue & Customs Commissions v Total Network SL [2008] 1 AC 1174. 46. SA General Textiles v Sun and Sand Ltd [1978] 1 QB 279 at 299 per Lord Denning MR. 47. Connop v Varena Pty Ltd [1984] 1 NSWLR 71. 48. Foreign Judgments Act 1991 (Cth) s 6(6). See also Ellis v Dariush-Far (2007) 242 ALR 635. 49. Society of Lloyd’s v Marich (2004) 139 FCR 560. 50. Foreign Judgments Act 1991 (Cth) s 6(12). 51. SA General Textiles v Sun and Sand Ltd [1978] 1 QB 279 at 297 per Lord Denning MR. 52. Foreign Judgments Act 1991 (Cth) s 6(3). 53. Crick v Hennessy [1973] WAR 74; Re Word Publishing Co Pty Ltd [1992] Qd R 336. 54. Allerdyce Lumber Company Ltd v Quarter Enterprises Pty Ltd [2010] NSWSC 807. 55. (2012) 265 FLR 217. 56. Foreign Judgments Act 1991 (Cth) s 6(15). Upon registration the judgment carries interest as if it were a judgment of the court of registration: Foreign Judgments Act 1991 (Cth) s 6(7)(c). 57. See note 56 above, at s 6(8). 58. Barclays Bank Ltd v Piacun [1984] 2 Qd R 476; Esso China Inc v Chan Wing Mou [1999] VSC 294, BC9905861. 59. See, for example, Morf-Zinggeler v Morf [1999] WASC 96, BC9904142 (cancelling registration of Swiss judgment mistakenly registered before Act extended to Swiss courts). 60. Foreign Judgments Act 1991 (Cth) s 9(1). 61. See note 60 above, at s 6(6). 62. See note 60 above, at s 9(2). 63. Crick v Hennessy [1973] WAR 74. 64. Sharps Commercials Ltd v Gas Turbines Ltd [1956] NZLR 819; Crick v Hennessy [1973] WAR 74. 65. Brockley Cabinet Co Ltd v Pears (1972) 20 FLR 333. 66. [1984] Qd R 476. 67. Barclays Bank Ltd v Piacun [1984] 2 Qd R 476 at 478 per Connolly J; Esso China Inc v Chan Wing Mou [1999] VSC 294, BC9905861 at [2] per Balmford J; Maschmann v Wenzel [2007] NSWSC 850. 68. Maschmann v Wenzel [2007] NSWSC 850. 69. Bank Polska v Opara (2010) 238 FLR 309 at 323. 70. Brockley Cabinet Co Ltd v Pears (1972) 20 FLR 333 at 336 per Fox J; Barclays Bank Ltd v Piacun [1984] Qd R 476 at 478 per Connolly J; Esso China Inc v Chan Wing Mou [1999] VSC 294, BC9905861 at [16] per Balmford J. 71. Vetreria Etrusca SRL v Elitepack Pty Ltd [2008] NSWSC 496.

72. Svirkis v Gibson [1977] 2 NZLR 4; De Santis v Russo (2001) 27 Fam LR 414, reversed on other grounds: [2002] 2 Qd R 330. See Ch 40 above in relation to the common law position. 73. Ramanathan v Naidu [2007] NSWSC 693. 74. [2012] NSWSC 438. 75. (1990) 21 NSWLR 444 and see 40.68. 76. See also AK Investment OJSC v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804 at [109]–[124]. 77. (2009) 236 FLR 471; Rent Plus Ltd v Sorensen (No 2) [2013] NSWSC 67. 78. Connor v Connor [1974] 1 NZLR 632. The exception is New Zealand tax. See definition in Foreign Judgments Act 1991 (Cth) s 3(1). 79. Jenton Overseas Investment Pte Ltd v Townsing (2008) 221 FLR 398 at [6]; and see Ch 40 above in relation to the common law position. 80. See note 79 above. 81. (2010) 238 FLR 309. 82. (1998) 194 CLR 395. 83. Vervaeke v Smith [1983] AC 145; ED & F Man (Sugar) Ltd v Yani Haryanto (No 2) [1991] 1 Lloyd’s Rep 429. 84. For these purposes ‘matrimonial matters’ does not include proceedings relating to the maintenance of children, which are, as a result, actions in personam for the purposes of the Act: Close v Arnot (SC (NSW), Graham J, 21 November 1997, 10107/96, BC9706194, unreported); De Santis v Russo (2001) 27 Fam LR 414 at [10] per Atkinson J, reversed on other grounds: [2002] 2 Qd R 230. 85. Foreign Judgments Act 1991 (Cth) s 3(1) definition of ‘action in personam’. 86. [2011] WASC 338. 87. Compare De Santis v Russo [2002] 2 Qd R 230. 88. SA General Textiles v Sun and Sand Ltd [1978] 1 QB 279 at 299 per Lord Denning MR. 89. See note 88 above, at 307–8 per Shaw LJ. Semble, whether a submission to a specified court is a submission to any of the courts in that country: note 88 above at 298 per Lord Denning MR. The better view is probably that the submission must either be to a specific court or generally to the courts of the foreign country: note 88 above, at 303 per Goff LJ, 309 per Shaw LJ. 90. [1908] 1 KB 302. 91. See definition of ‘New Zealand tax’ in Foreign Judgments Act 1991 (Cth) s 3(1). 92. McCormac v Gardner [1937] NZLR 517; Gordon Pacific Developments Pty Ltd v Conlon [1993] 3 NZLR 760. 93. Sharps Commercials Ltd v Gas Turbines Ltd [1956] NZLR 819; Gordon Pacific Developments Pty Ltd v Conlon [1993] 3 NZLR 760. 94. Maples v Maples [1988] Fam 14. 95. [1980] FLC 90–842. 96. Thus, a judgment given in foreign proceedings commenced in the face of an exclusive jurisdiction or arbitration agreement (see generally Chapter 7 above) and in which proceedings the defendant does not participate will, if registered, be able to be set aside because the foreign court would not be recognised as having had jurisdiction within the meaning of the Foreign Judgments Act 1991. 97. Foreign Judgments Act 1991 (Cth) s 7(4); and see Chapter 10 above in relation to sovereign

diplomatic and consular immunity. 98. See note 97 above, at s 6(7). Registration of a foreign default judgment, however, is not treated as a default judgment upon registration: see note 71 above. 99. Official Receiver of the State of Israel v Raveh (2001) 24 WAR 53. But see Davis v Turning Properties Pty Ltd (2005) 222 ALR 676. 100. Society of Lloyd’s v Marich (2004) 139 FCR 560. 101. Re A Judgment Debtor [1939] Ch 601; Re McGilvray (1986) 66 ALR 181. 102. Foreign Judgments Act 1991 (Cth) s 6(10). 103. Wagner v Laubscher Bros [1970] 2 QB 313. 104. Foreign Judgments Act 1991 s 6(11). 105. See note 104 above, at s 6(11A). 106. Lewis v Beck (SC (Vic), Beach J, 12 May 1998, 4820/98, BC9802042, unreported). See Foreign Judgments Act 1991 (Cth) s 7(2)(a)(iii). 107. Foreign Judgments Act 1991 (Cth) s 10(1). 108. Standard Commodities Pty Ltd v Société Socintar Départment Centragel (2005) 54 ACSR 489 at [20]. 109. Foreign Judgments Act 1991 (Cth) s 12(1). 110. See note 109 above, at s 12(2). 111. See note 109 above, at s 12(3). 112. [1975] AC 591 (Lords Dilhorne, Wilberforce and Simon, Lord Reid concurring on a different ground and Lord Diplock dissenting). 113. See Chapter 16 above.

[page 952]

Chapter 42

Enforcement of Judgments Within Australia Introduction 42.1 Section 118 of the Constitution provides that full faith and credit shall be given throughout the Commonwealth to ‘the judicial proceedings in every State’.1 That term clearly includes any kind of judgment, decree or order made by a court or judicial officer. The decision of the United States Supreme Court in Magnolia Petroleum Co v Hunt2 on the identical words used in Art IV s 1 of that country’s Constitution suggests that the term can be applied to the proceedings of all bodies which have the duty to act judicially, including those of an administrative character, such as an award made by a workers’ compensation board, although the Supreme Court later overruled Magnolia to the extent that it applied to workers’ compensation board awards.3 42.2 Part 6 of the Service and Execution of Process Act 1992 (Cth) provides for the enforcement by registration of judgments made in an Australian state in any other state. Because money judgments, injunctions, orders for specific performance and other miscellaneous orders described below can be enforced under Pt 6, full faith and credit and s 118 are relevant only in relation to judgments that cannot be enforced under Pt 6. The most important of these are orders granting probate of a will and letters of administration,4 and orders relating to the care and management of the property and person of a mentally incapable person.5 Interlocutory orders6 and decisions in criminal proceedings7 provide two further examples. [page 953]

42.3 This chapter deals first with enforcement of judgments under Pt 6 of the Act, then with the recognition of other judgments under full faith and credit.

Part 6 of the Service and Execution of Process Act 1992 (Cth) 42.4 The Service and Execution of Process Act 1992 (Cth) commenced on 10 April 1993. On or after that date any judgment given in Australia, before or after that date, must be enforced under Pt 6 of the Act.

Scope of Part 6 42.5 As previously stated, Pt 6 of the Act provides for the enforcement by registration of judgments made in an Australian state in any other state. For the purposes of the Act, the territories of the Australian Capital Territory, the Northern Territory and Norfolk Island are deemed to be states.8 The territories of Christmas Island and Cocos (Keeling) Islands are deemed to be part of Western Australia; the Jervis Bay Territory, the Australian Antarctic Territory and the Territory of Heard Island and the McDonald Islands are deemed to be part of the Australian Capital Territory; the Territory of Ashmore and Cartier Islands is deemed to be part of the Northern Territory; and the Coral Sea Islands Territory is deemed to be part of Norfolk Island.9 42.6 The main purpose of Pt 6 is the enforcement of judgments given in a civil proceeding. However, as will be shown below at 42.10–42.11, certain orders made in criminal proceedings may be enforceable under Pt 6. Provision is made for the enforcement of fines imposed by courts of summary jurisdiction in Pt 7 of the Act, while the execution of warrants and writs of attachment is provided for in Pt 5. 42.7 Unlike the previous legislation,10 Pt 6 applies to any judgment rendered by any body having the status of a court under the law of a state, whether a court of record or not. It extends to orders made by judges, magistrates, coroners, or officers of a court.11 It also includes certain orders made by tribunals appointed or established under the law of a state with power to take evidence on oath or affirmation.12 However, Pt 6 does not apply to judgments or costs orders made by the High Court of Australia.13 42.8 In relation to civil proceedings, a ‘judgment’ is defined in s 3(1) of the Act as:

[page 954] (a) a judgment, decree or order, given, entered or made by a court in a civil proceeding under which: (i) any sum of money is made payable; or (ii) a person is required to do or not to do an act or thing (other than the payment of money); not being an order made under proceeds of crime legislation (other than a pecuniary penalty order) …

In Winchcombe v Winchcombe14 Mansfield SPJ held that the word ‘judgment’ as used in a similar definition in the repealed Act must be given its strict technical meaning with the result that a maintenance order was not a ‘judgment’ within the meaning of Pt IV of the repealed Act. But this interpretation virtually ignores the statutory definition which expressly includes orders ‘whereby any sum of money is made payable’. The preferable view is that adopted by a Full Court of the Supreme Court of South Australia in Re F and B Wool Chemicals and Wool Treatment Pty Ltd.15 In that case, Napier J held that any order for the payment of money was a ‘judgment’ within the meaning of the Act, even though it was not a judgment in a technical sense.16 Consequently the court held that a ‘balance order’ made against a contributory liable for calls during winding up proceedings fell within the definition of ‘judgment’. It is clearly the intention of the present Act that the word ‘judgment’ should be given as wide a meaning as possible. It includes orders which are not final, such as orders made in interlocutory or similar proceedings.17 42.9 The definition of ‘judgment’ is not limited to judgments for sums of money; it expressly includes any decree or order whereby any person is required to do or not to do any act or thing other than the payment of money. Thus, there would appear to be little doubt that decrees granting specific performance or injunctive relief are registrable and enforceable under Pt 6. In Rumcoast Holdings Pty Ltd v Prospero Publishing Pty Ltd,18 Templeman J of the Supreme Court of Western Australia expressed the view, obiter, that an injunction restraining the defendant from using the plaintiff’s business name could be registered in every jurisdiction in Australia under the Act. Dismissing an appeal from Templeman J’s judgment, Pidgeon, Wallwork and Murray JJ of the Full Court of the Supreme Court of Western Australia agreed with that proposition.19 In Starr-Diamond v Diamond (No 3),20 Slattery J of the Supreme Court of New South Wales expressed the view, obiter, that an order appointing trustees for sale of land and creating statutory trusts for sale could be registered in another state under the Act. 42.10 Because of the definitions of ‘civil proceeding’ and ‘criminal proceeding’

in s 3(1) of the Act, orders for compensation of victims of crime and orders under proceeds of crime legislation21 are included as ‘civil proceedings’ under s 3(1). [page 955] 42.11 The definition of ‘judgment’ in s 3(1) of the Act continues with the following paragraph: (b) an order made by a court in a criminal proceeding under which: (i) a sum of money is made payable as a debt due to the Crown in right of the Commonwealth or a State; or (ii) a person is required to do or not to do an act or thing (other than the payment of money) …

However, orders imposing a fine are specifically excluded from registration under Pt 6, because they are excluded from the definition of ‘judgment’ in s 3(1).22 Orders made in proceedings under the Proceeds of Crime Act 1987 (Cth) or the Proceeds of Crime Act 2002 (Cth) and the law of a state that is a corresponding law under the Proceeds of Crime Act 2002 (Cth) are also included by reason of the definitions of ‘civil proceeding’ and ‘criminal proceeding’ in s 3(1) of the Act. 42.12 The definition of ‘judgment’ in s 3(1) continues: (c) an order made by a court for the forfeiture of bail; (d) an order that: (i) is made by a tribunal in connection with the performance of an adjudicative function; and (ii) is enforceable without an order of a court (whether or not the order made by the tribunal must be registered or filed in a court in order to be enforceable) …

This head relates to determinations made by a person or body sitting as a tribunal under state law in a proceeding in which there are two or more parties for the purpose of determining the rights and liabilities of those parties by altering the same or determining them in relation to matters such as: real property, including tenancy disputes; contracts for the supply of goods or the provision of services within that state; an act or omission within that state; complaints made to a professional, trade or occupational tribunal; and entitlements to pensions or benefits under state law.23 Bodies which meet that description are consumer complaint and rent tribunals, for example. 42.13 The definition of ‘judgment’ in s 3(1) of the Act includes an order, decree or judgment registered in a court under the Foreign Judgments Act 1991 (Cth).24 Thus, a foreign judgment registered in any Australian jurisdiction under the

procedure described in Ch 42 may be enforced in any other jurisdiction under Pt 6. 42.14 The definition specifically excludes certain judgments and orders from the scope of judgments that can be registered under Pt 6: (f)

a judgment, decree or order of a court of a foreign country that has been registered in a court in Australia otherwise than under the Foreign Judgments Act 1991 (Cth); or

(g) an order, however described, imposing a fine; (h) an order relating to the granting of probate or letters of administration or the administration of the estate of a deceased person; (i)

an order relating to the guardianship of a person who is incapable of managing his or her personal affairs;

[page 956] (j)

an order relating to the management of the property of a person who is incapable of managing that property;25

(k) an order relating to the care, control or welfare of a child; and (l)

an order that, if contravened by the person to whom it is directed, will render the person liable to conviction for an offence in the State in which the order was made.

It seems that the last-named category does not include orders for an injunction the breach of which is punishable as a civil contempt.

The registration of judgments under Part 6 42.15 The scheme laid down in Pt 6 for the enforcement of state judgments throughout Australia is simple and straightforward. Any person in whose favour a judgment has been given which meets the description given above may lodge a sealed copy,26 or a fax27 of a sealed copy, of that judgment with an appropriate court in another state. In contrast to the former legislation, there is no time limit prescribed within which lodgment must take place. However, if the sealed copy of a judgment first lodged by fax is not lodged within seven days, proceedings for enforcement cannot be commenced or continued without the leave of the court.28 42.16 What is the appropriate court depends on the level of court in which the judgment was originally rendered.29 If the rendering court was a Supreme Court, the appropriate court for registration in another state is its Supreme Court. If it

was another court, such as a county or district court, the appropriate court is the court in the state of registration in which similar relief could have been obtained. If there is more than one such court, for example, because the District and Supreme Courts have concurrent jurisdiction, the appropriate court is the court of more limited jurisdiction. If no court of corresponding jurisdiction can be found, the appropriate court is the Supreme Court.30 42.17 Upon lodgment the prothonotary, registrar or other proper officer of the appropriate court ‘must register the judgment in the court’.31 It was held in relation to similar language under the former Act that the function of the registrar is purely administrative; he or she cannot refuse to register the judgment even if it is alleged to be defective.32 Upon registration the judgment has the same force and effect for enforcement purposes under s 105(2) as if the judgment had been given in the court of registration, but for other purposes it remains a judgment of the court in which [page 957] it was originally made.33 Thus, it is not open to a party to seek a variation of the registered judgment in the court of registration.34

Challenge to registered judgment 42.18 Unlike the legislation providing for the enforcement of foreign judgments,35 Pt 6 does not lay down any jurisdictional preconditions that must be satisfied before the judgment can be registered. To the contrary, s 109 expressly provides that the courts of the state of registration must not refuse to enforce the registered judgment merely because under the common law rules of private international law the judgment might not be entitled to recognition; for example, because the defendant was served outside Australia and did not submit to the jurisdiction. This settles an issue which for a long time caused uncertainty under the former legislation: should the common law rules be read into the Act in the absence of any express declaration that such rules were inapplicable?36 Thus, the defendant cannot complain of a lack of jurisdiction in the international sense, or that the judgment is not final,37 or that the judgment offends against the public policy of the jurisdiction of registration, or that the debt represents a revenue debt. Nor would it be possible to raise an issue of fraud which has, or

could have been, raised in the original proceedings. The only prerequisite for enforcement is that found in s 105(5): that the registered judgment must, at the time proceedings for enforcement are taken, be capable of being enforced in the court of rendition or a court in the place of rendition. 42.19 It follows that the only recourse of a judgment debtor who wishes to challenge the enforcement of a registered judgment is to apply for a stay of proceedings under s 106(1). Such a stay will only be granted until a specified time or for a specified period on condition that the applicant for the stay make an application for relief in respect of the judgment by way of appeal, or for the setting aside or variation of the judgment, to a court which has jurisdiction to entertain such application under the law of the place of rendition and pursue that relief in an expeditious manner.38 42.20 The judgment debtor may apply to have the judgment arising from registration set aside or varied if the judgment of the rendering jurisdiction is set aside or varied.39 [page 958]

Effect of registration 42.21 There is no doubt that under s 105(2) the method of enforcement must be in accordance with the law and practice of the court of registration. The registered judgment has the same force and effect and ‘may give rise to the same proceedings by way of enforcement’ as a judgment of the court of registration. Under the previous legislation, the use of the words ‘the like proceedings’ were considered wide enough to cover means of enforcement, such as the issue of a bankruptcy notice, which strictly speaking were not means of execution of a judgment.40 The use of the word ‘same’ in the present Act indicates a narrower meaning. 42.22 The present Act leaves open, as did Pt IV of the former Act, whether a judgment for a sum of money which is registered under Pt 6 should be enforced in the manner appropriate to a judgment pronounced in the jurisdiction of registration on the cause of action for which the plaintiff sued. This issue arose under the repealed Act before a Full Court of the Supreme Court of New South Wales in Smith v Cotton.41 In that case a judgment had been obtained in Victoria against a married woman in respect of a contract made by her. The judgment was

registered in New South Wales and a writ of capias ad satisfaciendum taken out against her by way of enforcement. Such a writ would be an appropriate method of executing a judgment for a monetary sum generally. However, in New South Wales at that time a married woman could only be sued in respect of her separate contracts under the Married Women’s Property Act 1901 (NSW). A judgment obtained under that Act could not be enforced by way of personal attachment. The majority of the Full Court held that a plaintiff can only use such remedies in respect of a judgment registered under Pt IV (the equivalent of the present Pt 6) as could be obtained if the defendant had been sued on the same cause of action and judgment obtained in the jurisdiction of registration. On that principle attachment could not lie. Ferguson J dissented in a strong and compelling argument. As he pointed out, what is registered under the Act is the part of the judgment which awards the damages, or which orders the doing of an act and not the part of the judgment which determines the issues. Consequently, as his Honour put it:42 The intention was that when by the judgment of a Court of any State in the Commonwealth an obligation had been imposed upon a person to pay a sum of money or to do some act the payment of the money or the performance of that act might be enforced by a Court of any other State in the same way as if the like payment or the like performance had been ordered by the judgment of that Court.

The reasoning of Ferguson J is to be preferred to that of the majority. As his Honour pointed out, the majority view would lead to the logical conclusion that a New South Wales court could never enforce a judgment given in another jurisdiction on a cause of action which did not exist in New South Wales. This would deny the very purpose of the legislation. [page 959] 42.23 The earlier decision of a Full Court of the Supreme Court of New South Wales in Davis v Davis43 might appear to support the majority view in Smith v Cotton, in that the Full Court in Davis refused to enforce as a debt an alimony order obtained in Victoria, such enforcement not being available in respect of alimony orders under the law of New South Wales. But in that case, which was decided before the introduction of the Judicature Act system in New South Wales, the plaintiff sought to enforce in the common law jurisdiction of the Supreme Court an order which was registered in its matrimonial causes

jurisdiction. So far as the court in its then quite separate common law jurisdiction was concerned, the judgment was not a judgment registered in that court.

Full Faith and Credit 42.24 Section 118 of the Constitution does not in its terms compel a state court to give full faith and credit to the judgments of a territorial court. It does, however, apply ‘throughout the Commonwealth’. This term, as understood in 1900, includes the Northern Territory and the Australian Capital Territory which were part of the six federating colonies.44 Thus, s 118 does impose an obligation on the courts of those territories to give full faith and credit to state judgments.45 42.25 The constitutional obligation created by s 118 is amplified by the Evidence Act 1995 (Cth) s 185,46 which imposes an obligation on every court in Australia (thus, including the courts of the states and territories)47 to give each other’s judgments faith and credit. It is now well established that either s 118 of the Constitution or s 185 of the Evidence Act 1995 or both provisions in combination are effective to require any order of a state or territory court, proved as required by the Evidence Act 1995, to be treated by all Australian courts as having the same status and effect as the order would have in the state or territory of the court making the order. 42.26 The starting point for the view that full faith and credit provisions compel courts to give substantive recognition to interstate judgments not covered by the Service and Execution of Process Act 1992 is the decision by Fullagar J (then a judge of the Supreme Court of Victoria) in Harris v Harris.48 [page 960] That case arose out of an undefended petition for divorce presented in the Supreme Court of Victoria. The petitioner had previously been married, but that marriage had been dissolved by a decree pronounced by the Supreme Court of New South Wales. At that time no federal matrimonial causes legislation was in force and each state had its own divorce laws. The question therefore arose whether the New South Wales decree should be recognised in Victoria. Fullagar J held that under the ordinary common law rules of private international law the decree could not be recognised in Victoria.

Fullagar J then considered whether the position as between the states was altered by reason of the full faith and credit provisions. He did not think that s 118 of the Constitution was of much assistance since it was, in his view, ‘a broad general pronouncement or direction such as one would expect to find in a constitution’. But Fullagar J did find in s 18 of the State and Territorial Laws and Records Recognition Act 1901 (Cth) (the predecessor of the Evidence Act 1995 (Cth) s 185) ‘a specific and precise direction … to accord to a judgment given in New South Wales the same effect as that judgment would receive in the courts of New South Wales’.49 Since a New South Wales court would treat the decree as dissolving the marriage, he felt bound to give it the same effect in Victoria. 42.27 The decision in Harris v Harris was followed in The Estate of Searle (dec’d),50 where an interstate adoption order was held to be entitled to recognition. More recently in G v G51 McLelland J in the Supreme Court of New South Wales had to consider whether he had jurisdiction to vary a custody order made ex parte in Queensland. McLelland J assumed, following Harris v Harris, that he should give the Queensland judgment the same effect as it had in that state, but no more. Since under the law of Queensland a custody order was never final or conclusive, it did not preclude him from making an order at variance with it. In Ocalewicz v Joyce,52 Macready AsJ of the Supreme Court of New Wales held that s 185 of the Evidence Act 1995 required enforcement in New South Wales of an order made by the South Australian Guardianship Board. Macready AsJ considered but did not conclusively answer the question whether a decision of the Guardianship Board would constitute ‘judicial proceedings’ for purposes of s 118 of the Constitution. His Honour’s decision on the operation of s 185 of the Evidence Act 1995 made it unnecessary to reach a conclusion on that question of the interpretation of s 118 of the Constitution. 42.28 In Bond Brewing Holdings Ltd v Crawford53 Ipp J in the Supreme Court of Western Australia was asked to grant an injunction to restrain the defendants, who had been appointed receivers and managers of the plaintiff corporation by the Supreme Court of Victoria shortly before the Christmas vacation, from exercising their rights under that order until the matter could come back before that court. His Honour took the view that full faith and credit prevented him from granting such [page 961]

relief in respect of an order made by the Supreme Court of Victoria when that relief could not have been granted by another judge of that court. 42.29 In Rowe v Silverstein,54 Batt J held that s 118 of the Constitution by itself required the Supreme Court of Victoria to give full faith and credit to an interlocutory order of the Supreme Court of New South Wales to the same extent as recognition would be given to that order in New South Wales itself, even if the order were made without jurisdiction. His Honour noted that both Harris and Bond Brewing Holdings were based principally on s 18 of the (now repealed) State and Territorial Laws and Records Recognition Act 1901 (Cth). His Honour was unable to find a re-enactment of s 18 (although there was one in the Evidence Act 1995 (Cth) s 185), so he based the decision on s 118 alone. 42.30 Similarly, in Evans v Strachan,55 Slicer J of the Supreme Court of Tasmania held that s 118 was sufficient in itself to require full faith and credit to be given to criminal proceedings in the Supreme Court of Victoria that had led to convictions. His Honour said that s 118 required that ‘[t]he Victorian convictions are to be regarded in the same manner as if they were Tasmanian convictions’.56 Similarly, in Lipohar v R,57 Gaudron, Gummow and Hayne JJ said, obiter, that full faith and credit must be given to any sentence imposed by a state court.58 42.31 In Re an Alleged Incapable Person FCC and the Protected Estates Acts 1983,59 Powell J in the Supreme Court of New South Wales refused to give full faith and credit to an order made by the Queensland Supreme Court in its crossvested jurisdiction under the Protected Estates Act 1983 (NSW), on the ground that it was a nullity since no proceedings under that Act had been instituted in Queensland. The order had been made by the Queensland judge at the completion of a common law action for damages in which FCC was the plaintiff. No application had been filed and no inquiry held pursuant to the New South Wales statute. 42.32 However, in Re DEF and the Protected Estates Act 1983,60 Campbell J of the Supreme Court of New South Wales refused to follow Powell J’s decision in Re FCC, in virtually identical circumstances. Campbell J said that regardless of the procedural deficiencies in the order made by the Supreme Court of Queensland, it was still an order of a superior court, which must be accorded full faith and credit in all Australian courts.61 To follow Re FCC would be to go against the significant body of authority described above, at 42.26–42.30.62 In the light of the importance of the full faith and credit provisions in creating and maintaining an integrated system for administration of the law in Australia, it was not appropriate for the

[page 962] Supreme Court of New South Wales to declare a decision of the Supreme Court of Queensland to be a nullity, as Powell J had in Re FCC. 42.33 In their joint judgment in Lipohar v R,63 Gaudron, Gummow and Hayne JJ cited Harris as authority for the proposition that judicial proceedings in a state must be given full faith and credit throughout the Commonwealth. Although in effect s 18 of the State and Territorial Laws and Records Recognition Act 1901 continues to live on in s 185 of the Evidence Act 1995 and can be presumed to have the same meaning as the previous version, it may be that s 118 of the Constitution has a substantive effect by itself in that it mandates the recognition of interstate judgments without reference to the common law rules of private international law. As noted in 42.29, Batt J in Rowe v Silverstein64 relied solely on s 118, holding that none of the common law exceptions to recognition are applicable under s 118, save possibly that of fraud.65 Thus, a judgment rendered in another state or territory need not be final and conclusive,66 and it cannot be barred from recognition on the ground of public policy.67 42.34 Federal courts give full faith and credit to the decisions of other federal courts, although it seems that the basis is not a constitutional one grounded in s 118, but rather a policy one grounded on the desirability of avoiding conflicting orders.68 _________________________ 1.

The full faith and credit due to interstate laws is discussed in Chapter 2.

2.

320 US 430, 64 S Ct 208 (1943).

3.

Industrial Commission of Wisconsin v McCartin, 330 US 622, 67 S Ct 886 (1947); Thomas v Washington Gas Light Co, 448 US 261; 100 S Ct 2647 (1980).

4.

Service and Execution of Process Act 1992 (Cth) s 3(1) definition of ‘judgment’ para (h).

5.

See note 4 above at s 3(1) definition of ‘judgment’ paras (j), (k). See, for example, Re DEF and Protected Estates Act 1983 (2005) 192 FLR 92.

6.

See, for example, Rowe v Silverstein [1996] 1 VR 509.

7.

See, for example, Evans v Strachan (1999) 9 Tas R 10; 167 ALR 159.

8.

Service and Execution of Process Act 1992 (Cth) s 5(1).

9.

See note 8 above, at s 7(2).

10. Service and Execution of Process Act 1901 (Cth). 11. Service and Execution of Process Act 1992 (Cth) s 3(1) definitions of ‘court’ and ‘authority’. 12. See note 11 above, definition of ‘tribunal’.

13. Croker v Cmr of Taxation (2003) 52 ATR 226; [2003] FCAFC 23 at [10] per Lee, Whitlam and Jacobson JJ. 14. [1955] QWN 16. 15. [1940] SASR 267. 16. See note 15 above, at 274. 17. Service and Execution of Process Act 1992 (Cth) s 3(1) definitions of ‘judgment’ and ‘proceeding’. 18. (1999) 152 FLR 240 at 246, at [36]. 19. Rumcoast Holdings Pty Ltd v Prospero Publishing Pty Ltd [2000] ATPR ¶41-762 at [19]. 20. [2013] NSWSC 351 at [9]. 21. ‘Proceeds of crime legislation’ is defined in s 3(1) to mean the Proceeds of Crime Act 1987 (Cth), the Proceeds of Crime Act 2002 (Cth) or a law of a state that is a corresponding law within the meaning of the Proceeds of Crime Act 2002 (Cth). 22. Service and Execution of Process Act 1992 (Cth) s 3(1) definition of ‘judgment’ para (g). 23. See note 22 above, definition of ‘adjudicative function’ and s 48. 24. See note 22 above at s 3(1), definition of ‘judgment’, para (e). 25. See 42.31–42.32. For interstate recognition of guardianship and management orders, see Chapter 31. 26. Service and Execution of Process Act 1992 (Cth) s 104 definition of ‘sealed copy’ and s 105(1). 27. See note 26 above, at s 105(1). The sealed copy itself must then be filed within seven days: see note 26 above at s 105(3). 28. See note 26 above, at s 105(4). 29. See note 26 above, at s 105(5), (6). 30. See note 26 above, at s 105(6). 31. See note 26 above, at s 105(1). 32. Ex parte Penglase (1903) 3 SR (NSW) 680; Posner v Collector for Inter-State Destitute Persons (Vic) (1947) 74 CLR 461 at 486–7, per Windeyer J. 33. See Re Abrahamson; Ex parte Crisp and Gunn Ltd (1978) 22 ALR 749, a decision on a like provision in s 20(2) of the repealed Act. 34. See Bell v Bell (1954) 73 WN (NSW) 7. 35. See Chapter 41. 36. See MacKenzie v Manwell (1903) 20 WN (NSW) 18; Davis v Davis (1922) 22 SR (NSW) 185; Winchcombe v Winchcombe [1955] QWN 16 for the view that the repealed Act operated subject to the common law rules of recognition. The contrary view was taken by Napier J in Re F and B Chemicals and Wool Treatment Pty Ltd [1939] SASR 441 and was finally accepted by the High Court in R v White and Noonan; Ex parte TA Field Pty Ltd (1975) 133 CLR 113 at 117 per Barwick CJ, Gibbs and Jacobs JJ agreeing with the Chief Justice on that point (at 119): see also Flaherty v Girgis (1987) 162 CLR 574 at 602 per Brennan J. 37. Service and Execution of Process Act 1992 (Cth) s 3(1) definition of ‘judgment’. 38. See note 37 above, at s 106(2), (3). 39. Bell v Bell (1954) 73 WN (NSW) 7; Doyle v Hall Chadwick [2007] NSWCA 159 at [51] per Hodgson JA. 40. Re Richards; Ex parte Maloney (1902) 2 SR (NSW) B & P 3.

41. (1926) 27 SR (NSW) 41. 42. See note 41 above, at 63. 43. (1922) 22 SR (NSW) 185. 44. Lamshed v Lake (1958) 99 CLR 132 at 142 per Dixon CJ. 45. Permanent Trustee Co (Canberra) Ltd v Finlayson (1967) 9 FLR 424 at 440 per Dunphy J, reversed on other grounds, (1968) 122 CLR 338. 46. Before 1995, the relevant provision was the State and Territorial Laws and Records Recognition Act 1901 (Cth) s 18, which provided that judicial proceedings of any state or territory, if duly authenticated as required by that Act, should have such faith and credit given to them in every court or public office as they had by law or usage in the courts and public offices of the state or territory from whence they are taken. Section 18 was repealed in 1995 by s 3 of the Evidence (Transitional Provisions and Consequential Amendments) Act 1995 (Cth) and replaced by the Evidence Act 1995 (Cth) s 185. 47. Including the external territories: see Evidence Act 1995 (Cth) s 6. 48. [1947] VLR 44. 49. See note 48 above, at 59. 50. [1963] SASR 303. 51. (1985) 10 Fam LR 718. 52. [2012] NSWSC 1163. 53. (1989) 1 WAR 517 at 529. 54. [1996] 1 VR 509. 55. (1999) 9 Tas R 10; 167 ALR 159. 56. See note 55 above, at ALR 168. 57. (1999) 200 CLR 485; 168 ALR 8. 58. See note 57 above, at CLR 533, ALR 40–1 at [117] citing Censori v Holland [1993] 1 VR 509 at 520 per Harper J. 59. (1990) 19 NSWLR 541. 60. (2005) 192 FLR 92. 61. See note 60 above, at 114–15, at [74]. 62. See note 61 above. 63. (1999) 200 CLR 485 at 533; 168 ALR 8 at 40–1, at [117]. 64. [1996] 1 VR 509. 65. See note 64 above, at 512. 66. G v C (1985) 10 Fam LR 718. 67. Breavington v Godleman (1988) 169 CLR 41 at 150 per Dawson J. 68. See, for example, Re Baxter; Ex parte Official Receiver v Baxter (1986) 10 FCR 398; Official Trustee in Bankruptcy v Turner (1999) 94 FCR 512 at 521 per O’Loughlin J (Federal Court to give full faith and credit to orders of Family Court of Australia); Official Trustee in Bankruptcy v Mateo (2003) 94 FCR 512; 202 ALR 571.

[page 963]

Chapter 43

Enforcement of Foreign Arbitral Awards Introduction 43.1 The principal and simplest means of enforcing a foreign arbitral award in Australia is pursuant to the provisions of the International Arbitration Act 1974 (Cth) in the many cases to which that Act applies. As noted in Chapter 7, that Act, in Pt II, gives effect to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (‘the New York Convention’) whilst Pt III gives effect to the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration (‘the Model Law’) which is reproduced in Sch 3 and which, by s 16 of the Act, is stated to have ‘the force of law in Australia’. Part IV of the International Arbitration Act 1974 provides for the enforcement of awards made by or under the auspices of the International Centre for the Settlement of Investment Disputes (ICSID). 43.2 Both the New York Convention and the Model Law contain very similar principles for the enforcement of arbitral awards. A person seeking to enforce a foreign arbitral award in Australia no longer needs leave of the Federal Court of Australia to do so. Section 8(3) of the International Arbitration Act 1974, which provides that ‘[s]ubject to this Part, a foreign award may be enforced in the Federal Court of Australia as if the award were a judgment or order of that Court’, has been interpreted to mean that, subject to considering and determining such of the statutory grounds for refusing to enforce a foreign arbitral award as may legitimately be raised, the Federal Court should give effect to its decision to enforce the award by directing entry of the appropriate money judgment or by making an appropriate order for payment.1 The International Arbitration Act

1974 creates a hierarchy of operation by providing in s 20 that ‘[w]here, but for this section, both Chapter VIII of the Model Law and Part II of this Act would apply in relation to an award, Chapter VIII of the Model Law does not apply in relation to the award’. The operation of the enforcement provisions of the New York Convention and the [page 964] Model Law, as picked up in the International Arbitration Act 1974, means that, in the vast majority of cases, there will be no need to seek to enforce a foreign arbitral award at common law,2 although a party is not precluded by the Act from seeking to enforce an award in that way.3 The process is, however, far simpler using the mechanism supplied by the Act. Importantly, there is nothing in the Act that prevents an Australian court from directing the entry of judgment consequent upon an award in circumstances where the award debtor has no assets in Australia against which execution might be levied.4 43.3 In TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (TCL),5 the High Court squarely rejected an argument that the enforcement by an Australian court of an international arbitration award pursuant to Article 35 of the Model Law was unconstitutional. It had been contended that the inability of the Federal Court to refuse to enforce an award on the ground of error of law appearing on the face of the award undermined the institutional integrity of the Court as a court exercising the judicial power of the Commonwealth. Importantly, the fact that an award may contain an error of law on its face is not a ground for non-enforcement of an award, nor does the unavailability of such a ground compromise the role of a Ch III court in enforcing such an award.6 This is because enforcement of an arbitral award is enforcement of the binding result of the agreement of the parties to submit their dispute to arbitration and not the enforcement of any disputed right submitted to arbitration; further, the making of the award does not signify endorsement of the legal content of the award.7 The High Court in TCL expressly rejected an argument that Article 28 of the Model Law operated to confine the authority of an arbitrator under a relevant agreement to determining a dispute ‘correctly’. Art 28(1) and (2) were properly construed as primarily directed towards choice of law, and did not support an argument that legal error in or on the face of an award was a circumstance that would justify the nonrecognition or enforcement of an award.

[page 965]

Enforcement under the 1958 New York Convention: Part II of the International Arbitration Act 1974 (Cth) 43.4 Article III of the Convention provides that each contracting state shall recognise arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon. Although the Convention is capable of universal application, s 8(4) of the International Arbitration Act 1974 imposes an important restriction. It provides that where: (a) at any time, a person seeks the enforcement of a foreign award by virtue of Pt II; and (b) the country in which the award was made is not, at that time, a Convention country, the award cannot be enforced under Pt II unless that person is, at that time, domiciled or ordinarily resident in Australia or in a Convention country. 43.5 The country in which the award was ‘made’ need not be the country in which the arbitration was held. In Hiscox v Outhwaite8 the arbitrator had conducted the arbitration in London, but signed the award in Paris. The House of Lords held that the award was made in France, a Convention country, even though the arbitration was held in England and was subject to its procedural law. 43.6 The words ‘at that time’, each time when they are used, refer to ‘any time’ a person seeks enforcement of the award. Thus, it is sufficient to establish that the foreign country in which the award was made or where the enforcer was domiciled or resident, was, at the time enforcement was sought in Australia, a party to the Convention, even if it acceded after the award was made.9 A certificate from the Secretary of the Department of Foreign Affairs and Trade that a country is, or was at any time, a party to the Convention is prima facie evidence of that fact.10 In the case of a corporation, it shall be taken to be ordinarily resident in a country if and only if it is incorporated or has its principal place of business in that country.11 43.7 If the award comes within the Convention, as defined by Pt II, it shall be binding for all purposes on the parties to the arbitration agreement in pursuance of which it was made, and may be enforced in the courts of a state or territory in

accordance with the provisions of the arbitration legislation of that state or territory dealing with the enforcement of domestic awards.12 The party seeking enforcement need only produce the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement in pursuance of which the award purports to have been made.13 Upon such production, there will be prima facie evidence of the fact that the award was made as it purports to have been made, [page 966] the subject matter of the award and the fact that the award purports to have been made pursuant to the arbitration agreement.14 According to the Victorian Court of Appeal, the award creditor must also satisfy the enforcing court on a prima facie basis that the award creditor and the award debtor are also parties to the arbitration agreement.15 This will usually be straightforward, but what of the situation where an apparent award debtor denies that it was a party to any arbitration agreement? This issue has arisen in a number of recent cases and falls to be decided by the proper law of the arbitration agreement. In Dallah Real Estate v Ministry of Religious Affairs,16 the issue was whether or not the Government of Pakistan was bound by an arbitration agreement entered into between Dallah and a statutory trust. A distinguished panel of arbitrators had held that it was, and thus proceeded to make an award that purported to bind the government. Whilst the United Kingdom Supreme Court accepted that the arbitral tribunal could rule on its own jurisdiction, it held that the tribunal was not the final arbiter of jurisdiction and whether the arbitrators had jurisdiction was a matter for the court to determine for itself. Moreover, it was noted that the fact that jurisdiction can no longer be challenged in the courts of the seat of the arbitration does not preclude consideration of the tribunal’s jurisdiction by the enforcing court.17 In IMC Aviation Solutions Pty Ltd v Altain Kluder LLC,18 the Victorian Court of Appeal applied Dallah Real Estate and criticised as wrong observations made at first instance to the effect that a party resisting enforcement on the ground that it was not party to the arbitration agreement bore a ‘very high onus’ requiring ‘clear, cogent and strict proof’. The primary judge was also criticised for making ex parte enforcement orders in circumstances when it was not apparent on the fact of the arbitration agreement that the arbitration debtor was a party to the arbitration agreement. The court also held that the failure of the purported award debtor to participate in the arbitration or to apply to set

aside the award in the seat of the arbitration could give rise to an estoppel precluding it from denying that it was a party to the arbitration agreement. In Dampskibsselskabet Norden A/S v Beach Building and Civil Group Pty Ltd,19 an obvious misdescription of a charterer in a charterparty containing the arbitration agreement did not result in the award debtor being able to resist enforcement. 43.8 Upon establishing that the award comes within the Convention and upon the production of the award or a duly certified copy thereof, together with the arbitration agreement itself, and semble prima facie proof that the award creditor and award debtor were parties to that agreement, then under s 8(5) of the International [page 967] Arbitration Act 1974, the onus shifts to the party resisting enforcement of the award to prove to the satisfaction of the court either that: (a) the party, being a party to the arbitration agreement in pursuance of which the award was made, was, under the law applicable to him, under some incapacity at the time when the agreement was made … In an Australian court the question of capacity to enter into an agreement will be determined by the appropriate choice-of-law rule of the forum.20 The qualifying reference to ‘some incapacity’ is puzzling, but surely can only refer to an incapacity which under the appropriate law avoids the contract: (b) the arbitration agreement is not valid under the law expressed in the agreement to be applicable to it, or where no law is so expressed to be applicable, under the law of the country where the award was made … The first aspect of this ground for non-enforcement is in accordance with the almost universal principle of autonomy. However, the reference to the law of the place of arbitration in the absence of a choice may conflict with the decision of the House of Lords in Compagnie Tunisienne de Navigation SA v Compagnie d’Armement Maritime SA21 that the place of arbitration is not always conclusive in the absence of an express choice-of-law clause. The statutory equivalent of s 8(5)(b) was relied upon by the United Kingdom Supreme Court for its conclusion in Dallah Real Estate v Ministry of Religious Affairs22 that the respondent was not party to the arbitration agreement and therefore not bound by the award:

(c) that party was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case in the arbitration proceedings … This subparagraph may give rise to the need for a detailed factual analysis as to the giving of notice. 23 (d) the award deals with a difference not contemplated by, or not falling within the terms of, the submission to arbitration, or contains a decision on a matter beyond the scope of the submission to arbitration … It is, however, provided that where an award contains decisions on matters submitted to arbitration and those decisions can be separated from decisions on matters not so submitted, that part of the award which contains decisions on matters so submitted may be enforced:24 (e) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place … This subparagraph is interesting since it gives primacy to the agreement between the parties and not the lex fori of the arbitration. The wording was proposed by [page 968] the International Chamber of Commerce with the avowed intention of permitting international arbitration to take place completely free even of imperative national laws. Dr Mann has argued that parties cannot lift themselves by their bootstraps out of the territorial sovereignty in which they act, and that ‘free arbitration’ is only possible if the lex fori of the arbitration permits it.25 In that case, however, the first part of the subparagraph is superfluous. It is unlikely that an Australian court would be very concerned to assert the territorial sovereignty of a foreign state as regards its arbitration laws. The fact that the arbitrator lacks jurisdiction to resolve the dispute under the arbitration agreement does not necessarily mean that he or she cannot make any award that would be enforceable under the Convention. That was the conclusion the Queensland Court of Appeal arrived at in Commonwealth Development Corp (United Kingdom) Ltd v Montague.26 The claimant had instituted arbitral proceedings under the International Chamber of Commerce Rules. The

arbitration was conducted in New Zealand, where the arbitrator held that the claimant was not a party to the contract containing the arbitration agreement on which he sought to rely. The arbitrator therefore concluded that he had no jurisdiction to determine the claimant’s claims, but nevertheless awarded costs against the claimant. When the respondent sought to enforce the costs order in Queensland, the claimant argued that there was no enforceable award because there was no arbitration agreement. The Queensland Court of Appeal rejected that ‘rather unmeritorious contention’,27 holding that by instituting the arbitral proceedings, the claimant had agreed to be bound by the arbitrator’s award, including in relation to costs. Thus, the reference to arbitration was itself an arbitration agreement that could give rise to an award enforceable under the Convention: (f)

the award has not yet become binding on the parties to the arbitration agreement or has been set aside or suspended by a competent authority of the country in which, or under the law of which, the award was made.28

It can be assumed that this subparagraph confirms the attitude of the English Court of Appeal in Union Nationale des Cooperatives Agricoles de Cereales v Robert Catterall & Co Ltd29 that an award is binding notwithstanding the fact that some additional formality is required to make it enforceable in the country where it was made. If an application to set the award aside or to suspend it is made in the country where it was originally made, or under the law of which it was made, the court may, if it thinks fit, adjourn the proceedings.30 In Toyo Engineering Corp v John Holland Pty Ltd,31 Byrne J of the Supreme Court of Victoria granted an adjournment despite argument by the enforcing party to the effect that the foreign impeachment application was hopeless, because in his Honour’s view it could not be stated with confidence that [page 969] the impeachment application was unarguable. By way of contrast is the decision of Rolfe J of the Supreme Court of New South Wales in Hallen v Angledal32 who declined to adjourn enforcement proceedings by reason of an absence of evidence that an application had been made to a ‘competent authority’ as well as the failure to demonstrate that the foreign application had ‘some prospects of success’. In Hiscox v Outhwaite,33 the problem facing the House of Lords was that the

award was signed in France but made under the law of England where the arbitration was held. Although on a strict reading of the Convention the award as a ‘French’ award prevented an English court from staying its enforcement, the House of Lords held that under provisions similar to those found in the Australian Act, the enforcement proceedings could be adjourned whilst the High Court exercised its curial power of supervision over an award made under English law. In Esco Corporation v Bradken Resources Pty Ltd,34 an application to enforce an award in Australia was adjourned pending a judicial application in the United States to vacate a significant part of an award involving the awarding of legal costs in circumstances where the United States proceedings provided an appropriate forum for determining the challenge which involved a question of United States law. The adjournment was conditional upon a payment of substantial security pursuant to s 8(8) of the International Arbitration Act 1974. The award can be a final award which determines all issues between the parties or an interim award which determines some issues between them, such as liability, but reserves others for later determination, such as the amount of damages. But either type of award must determine finally and conclusively some of the issues raised between the parties. Purely interlocutory orders, such as interim injunctions, are not enforceable under the Convention.35 It is important to emphasise that s 8(5) of the International Arbitration Act 1974 does not permit a party to a foreign award to resist enforcement on the ground that the award was arrived at by an erroneous reasoning process involving mistakes of fact and law.36 43.9 In addition the court may refuse to enforce an award if it finds that:37 (i)

the subject matter of the difference between the parties to the award is not capable of settlement by arbitration under the laws enforced in the State or territory in which the court is sitting; or

(ii) to enforce the award would be contrary to public policy. The public policy of the jurisdiction in which enforcement is sought may differ from that of the jurisdiction supervising the arbitral proceedings.38 To avoid doubt, [page 970] s 8(7A) of the International Arbitration Act 1974 now provides that the

enforcement of a foreign award would be contrary to public policy if the making of the award was induced or affected by fraud or corruption or a breach of the rules of natural justice occurred in connection with the making of the award.39 In Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd (No 2),40 Murphy J noted a tension between the Act’s statement that a breach of the rules of natural justice would render an award contrary to the public policy of Australia given that ‘authority around the world indicates that a Convention award is only in conflict with or contrary to public policy if it offends fundamental notions of justice and fairness’. His Honour indicated that any tension between such authority and the fact that ss 8(7A) and 19 of the Act meant that even a minor breach of the rules of natural justice would be contrary to public policy could be reconciled through the exercise of the Court’s discretion not to enforce the award, noting, following a detailed review of international authorities (including Sir Anthony Mason’s decision as a member of the Hong Kong Court of Final Appeal in Hebei Import and Export Corp v Polytek Engineering Co Ltd 41) that such a discretion should be exercised sparingly, and requiring there to be offence to fundamental notions of fairness and justice. The decision of Foster J in Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2)42 is to similar effect.43 43.10 The term ‘contrary to public policy’ was given a broad interpretation by Lee J in Resort Condominiums International Inc v Bolwell,44 where his Honour held that it covered a case of ‘double vexation’ where the defendant had been made the subject of similar interlocutory orders by a United States District Court and a United States arbitrator. As his Honour was undoubtedly correct in holding that the ‘award’ was not enforceable in any event, it is hoped that his remarks will not be seen as making too great an inroad on the general principle that public policy should be very narrowly interpreted and certainly not by reference to domestic public policy. Similarly, his Honour’s view45 that the use of the word ‘may’ in s 8(2) of the International Arbitration Act 1974 (Cth) indicates a residual discretion to refuse an enforcement of the award outside the provisions of s 8(5) and (7) of that Act, would come as a surprise to those who drafted the Convention and the implementing legislation, although it must be conceded that it enjoys some eminent support overseas.46 In Young v S & L Consultancy,47 White J noted but did not need to resolve the question whether the conception of Australian public policy which may lead, for example, to a contract not being enforced, was broader than the notion

[page 971] of public policy under the International Arbitration Act 1974, it having been argued (unsuccessfully on the facts) that it would be contrary to public policy to enforce an award based upon a contract that was by itself contrary to Australian public policy. It should be noted that, under the Act, it is the enforcement of the award that must be contrary to public policy. Public policy may include procedural questions as well as question relating to substantive law.48 43.11 The question of the breadth of the public policy exception in s 8(7)(b) of the International Arbitration Act 1974 also fell for consideration in Corvetina Technology Ltd v Clough Engineering Ltd.49 It was there held that it was open to oppose the enforcement of an award on public policy grounds, namely, that the successful party had engaged in illegal conduct, even though the facts giving rise to this allegation were argued before and were the subject of the decision of the Singaporean arbitrator. It was held, moreover, that the party raising illegality and resisting enforcement was entitled to discovery on this issue. There was, and is, a clash between the public policy against the enforcement of illegal contracts, and the public policy in favour of finality of awards, especially where the issue in question has been the subject of the award.50 Of s 8(7)(b) of the International Arbitration Act 1974, McDougall J observed:51 The very point of provisions such as s 8(7)(b) is to preserve to the court in which enforcement is sought, the right to apply its own standards of public policy in respect of the award. In some cases the inquiry that it required will be limited and will not involve detailed examination of factual issues. In other cases, the inquiry may involve detailed examination of factual issues. But I do not think that it can be said that the court should forfeit the exercise of the discretion, which is expressly referred to it, simply because of some ‘signal’ that this might send to people who engage in arbitrations under the Act. There is, as the cases have recognised, a balancing consideration. On the one hand, it is necessary to ensure that the mechanism for enforcement of international arbitral awards under the New York Convention is not frustrated. But, on the other hand, it is necessary for the court to be master of its own processes and to apply its own public policy. The resolution of that conflict, in my judgment, should be undertaken at a final hearing and not on an interlocutory application.

In Uganda Telecom v Hi-Tech Telecom Pty Ltd,52 Foster J took issue with any suggestion emerging from Corvetina Technology that there was a general discretion to refuse to enforce a foreign award, emphasising that the public policy exception should be narrowly interpreted. His Honour returned to this theme in Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2) where he cautioned that the public policy ground for refusing enforcement should not be permitted to be used as an escape route for a defaulting award debtor, and should

not be made available too readily at the cost of undermining the purpose of facilitating the enforcement of arbitral awards.53 [page 972] 43.12 A narrow conception of public policy would probably dictate that an Australian court would not refuse to enforce an award on public policy grounds where the party resisting enforcement had raised defences or counter-claims in the arbitration of misleading or deceptive conduct or unconscionability under the Australian Consumer Law 2010 (for example, seeking to set aside or vary the contract sued upon) but where the arbitral tribunal, applying appropriate choiceof-law rules, applied a substantive law other than Australian law and thus did not entertain such claims (and defences) ‘on their merits’.54 This is a variation of a situation contemplated in Transfield Philippines Inc v Pacific Hydro Ltd,55 and is analogous to the refusal by Tamberlin J not to enforce a Californian judgment in Stern v National Australia Bank Ltd56 on public policy grounds by reason of an alleged inability (which was not, in the event, established on the facts) to raise s 52 of the Trade Practices Act 1974 (or a Californian equivalent) as a defence to the Californian proceedings. 43.13 In ACN 006 397 413 Pty Ltd v International Movie Group (Canada) Inc,57 the Victorian Court of Appeal held that it is possible to enforce an award in part, while declining to enforce the other part either because it had been performed or because it contained a bad but severable provision. In the case itself, part of a Californian arbitration award was held to be unenforceable because of uncertainty, but that did not preclude enforcement of other severable parts of the award that were not uncertain. The court referred to common law authority for the proposition that an award can be severed into enforceable and unenforceable parts, but did not cite any textual support from the Convention for the proposition that an award may be unenforceable because of uncertainty. 43.14 Like a judgment, an award may be pleaded by way of defence or estoppel.58 The Convention applies here also since the word ‘enforcement’ must be read as including ‘the recognition of the award as binding for any purpose’.59 43.15 The limitation period for an action to enforce the award begins to run at the time when the enforcing party becomes entitled to enforce the award.60 Conceptually, the claim arises under an implied undertaking to pay the award, and it has been held that a reasonable period, of the order of three months,

should be allowed for the necessary payment to be made voluntarily before the cause of action for enforcement arises and the limitation period begins to run.61 [page 973]

Enforcement under the Model Law: Part III of the International Arbitration Act 1974 (Cth) 43.16 As noted at 43.1 above, an important feature of the International Arbitration Act 1974 is its adoption of the provisions of the UNCITRAL Model Law on International Commercial Arbitration. 43.17 The recognition and enforcement of awards is dealt with in Arts 35 and 36 of the Model Law. By virtue of Art 1(2) those provisions apply whether the award was made in Australia or elsewhere and this is reinforced by Art 35(1), which provides that an arbitral award shall be recognised as binding ‘irrespective of the country in which it was made’. Unlike the New York Convention, the requirement to recognise and enforce under the Model Law is universal and not tied to countries that have adopted the Model Law. The provisions apply to awards made in pursuance of agreements concluded after 12 June 1989.62 The provisions of Arts 35 and 36 are not excluded by the parties exercising the facility of opting out of the provisions of the Model Law relating to the settlement of disputes.63 43.18 The provisions of the Model Law dealing with the recognition and enforcement of awards are not to apply in situations where the New York Convention is applicable.64 The impact of the Model Law will therefore be confined primarily to awards rendered in jurisdictions that have not ratified the New York Convention. The point is not of great significance since the provisions of the Model Law are closely modelled upon those of the New York Convention. 43.19 As with the New York Convention, the party relying on the award need only produce the duly authenticated original award, or a duly certified copy thereof, and the original arbitration agreement or a certified copy thereof.65 Once that is done the award must be enforced unless the party resisting enforcement furnishes proof that:66 (i)

a party to the arbitration agreement referred to in Art 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or

the party against whom the award is invoked was not given proper notice of (ii) the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those [page 974] not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced; or (iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or (v) the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made. 43.20 Alternatively, the award may be refused recognition or enforcement if the court finds that:67 (i)

the subject matter of the dispute is not capable of settlement by arbitration under the law of Australia; or

(ii) the recognition and enforcement of the award would be contrary to the public policy of Australia. 43.21 For the purposes of Australian law, ‘contrary to public policy’ has been defined as including specifically awards tainted by corruption or rendered in breach of natural justice, without limiting the generality of the words used in the New York Convention.68 The consideration of public policy at 43.9–43.12 above applies mutatis mutandis in the context of the Model Law. 43.22 As with the New York Convention, a court may, in the case of a party making application for the setting aside of the award to the court of the country in which the award was made, adjourn the proceedings for enforcement and, where appropriate, order the party seeking adjournment to provide appropriate

security.69 In countries like Australia, which have adopted the Model Law awards can only be set aside if application is made within three months of the receipt of the award by the party making the application and on grounds identical to those set out in subparas (i)–(iv), inclusive of Art 36(1)(a) and grounds (i) and (ii) of Art 36(1)(b).70

Enforcement of ICSID Awards: Part IV of the International Arbitration Act 1974 (Cth) 43.23 The ICSID Implementation Act 1990 (Cth), which commenced on 1 June 1991, implemented the Convention on the Settlement of Investment Disputes between States and Nationals of other States made in Washington DC in 1965 by inserting Pt IV in the International Arbitration Act 1974 (Cth). The Convention itself is attached to the Act in Sch 3. 43.24 The Convention established ICSID, falling within the Convention. With the consent given in writing by each of the parties, ICSID is given an irrevocable [page 975] jurisdiction to determine any legal dispute concerning investment between private law individuals and corporations on the one hand, and states or its constituent parts on the other.71 The law to be applied can be agreed upon by the parties. In the absence of agreement the tribunal is to apply the law of the state which is a party to the dispute (including its choice of law rules) and such rules of public international law as are applicable.72 The parties may also agree that the tribunal shall proceed ex aequo et bono.73 43.25 An award made by, or under the auspices of, ICSID may be lodged with the Supreme Court of any state or territory and may be enforced in the same manner as if it had been an order made by that court.74 However, such an award cannot be enforced under either Pts II or III of the International Arbitration Act 1974 (Cth).75 _________________________ 1.

Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd (2011) 277 ALR 441 at [13]; Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2) (2012) 201 FCR 535 at [71]–[72].

2.

See Norske Atlas Insurance Co Ltd v London General Insurance Co Ltd (1927) 43 TLR 941: ‘In order for an action to lie on the award at common law, it must: (i) have been made in accordance with a valid submission to arbitration; (ii) have been made in accordance with the law governing the procedure; and (iii) be final and conclusive according to the latter law’. In some countries an award is not enforceable until and unless it has been confirmed by a decision of a court. If the function of the court is limited to checking the formal validity of the award only and does not extend to re-examining the merits of the arbitral decision, the award is final and conclusive even if such confirmation has not taken place: Union

Nationale des Cooperatives Agricoles de Cereales v Robert Catterall & Co Ltd [1959] 2 QB 44. 3.

The existence of the convention excludes any provision made under the law of a state or territory for the enforcement of awards: International Arbitration Act 1974 (Cth) s 12. Although see ACN 006 397 413 Pty Ltd v International Movie Group (Canada) Inc [1997] 2 VR 31, where the Victorian Court of Appeal permitted enforcement of a Californian award under s 33 of the Commercial Arbitration Act 1984 (Vic).

4.

Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2) (2012) 201 FCR 535 at [82].

5.

(2013) 295 ALR 596; 87 ALJR 410.

6.

TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (2013) 295 ALR 596; 87 ALJR 410.

7.

See note 6 above, at [34].

8.

[1992] 1 AC 562. But see now, Arbitration Act 1996 (United Kingdom) s 53.

9.

Cf Kuwait Minister of Public Works v Sir Frederick Snow & Partners [1984] 1 AC 426.

10. International Arbitration Act 1974 (Cth) s 10(1). 11. See note 10 above s 3(3). For a recent example of an enforcement of an award in Australia, see China Sichuan Chanhong Electric Company Ltd v CTA International Pty Limited [2009] FCA 397. 12. See note 10 above s 8(2). 13. See note 10 above s 9(1). 14. See note 10 above s 9(5), and see Dampskibsselskabet Norden A/S v Beach Building and Civil Group Pty Ltd (2012) ALR 161 at [74]–[79]; 15. IMC Aviation Solutions Pty Ltd v Altain Kluder LLC (2011) 282 ALR 717 at [135]. This requirement has been doubted by Foster J in the Federal Court in Dampskibsselskabet Norden A/S v Beach Building and Civil Group Pty Ltd (2012) ALR 161 at [91]. 16. [2011] 1 AC 763. 17. See note 16 above, at [98] per Lord Collins, citing Svenska Petroleum Exploration AB v Government of the Republic of Lithuania (No 2) [2007] QB 886. For a further recent English decision concerning the determination of parties to arbitration agreements, see Arsanovia Ltd v Cruz City 1 Mauritius Holdings [2012] EWHC 3702 (Comm). 18. (2011) 282 ALR 717. 19. (2012) 292 ALR 161. 20. See 19.50–19.55 above. 21. [1971] AC 572. 22. [2011] 1 AC 763. 23. See, for example, Lkt Industrial Berhad (Malaysia) v Chun [2004] NSWSC 820; Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd (2011) 277 ALR 415. 24. International Arbitration Act 1974 (Cth) s 8(6). 25. Mann, ‘Lex Tacit Arbitrum’ (1968) International Arbitration at 165. 26. [2000] QCA 252. 27. See note 26 above, at [32] per Ambrose J (with whom Thomas JA agreed). 28. A foreign award which is not final will be refused recognition under the New York Convention: Resort Condominiums International Inc v Bolwell (1993) 118 ALR 655.

29. [1959] 2 QB 44. 30. International Arbitration Act 1974 (Cth) s 8(8). 31. [2000] VSC 553. 32. [1999] NSWSC 552. 33. [1992] 1 AC 562. 34. (2011) 282 ALR 282. 35. Resort Condominiums International Inc v Bolwell (1993) 118 ALR 655 at 673. 36. TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (2013) 295 ALR 596; 87 ALJR 410;; Uganda Telecom v Hi-Tech Telecom Pty Ltd (2011) 277 ALR 415 at 436 [125]–[126]. 37. International Arbitration Act 1974 (Cth) s 8(7). 38. Hebei Import and Export Corp v Polytek Engineering Co Ltd [1999] 2 HKC 205 at 229; Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd (No 2) [2012] FCA 1214. 39. See also s 19 of the International Arbitration Act 1974. 40. [2012] FCA 1214. 41. [1999] 2 HKC 205 at 232–233. 42. (2012) 201 FCR 535. 43. For similar New Zealand authority, see Amaltal Corporation Ltd v Maruha (NZ)Corp Ltd [2004] 2 NZLR 614 at [41]–[47]; Hi-Gene Ltd v Swisher Hygiene Franchise Corp [2010] NZCA 359 at [21]– [23]. 44. (1993) 118 ALR 655 at 677–8. 45. See note 44 above at 675–6. 46. Dalmia Cement Ltd v National Bank of Pakistan [1975] 1 QB 9 at 14–15, 22 per Kerr J; DworkinCosell Interair Courier Services Inc v Avraham (1989) 728 F Supp 156 (SDNY). 47. [2009] NSWSC 223. 48. Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd (No 2) [2012] FCA 1214 at [19]. 49. (2004) 183 FLR 317. 50. Cf Western Investments Inc v Jugoimport SPDR Holding Co [1999] QB 740 at 767–8; Soleimany v Soleimany [1999] QB 785. 51. (2004) 183 FLR 317 at 322. 52. (2011) 277 ALR 415 [132]. 53. (2012) 201 FCR 535 at [89]–[90]. 54. The expression ‘on their merits’ may be somewhat problematic. Arguably, if the tribunal’s application of appropriate choice-of-law rules did not lead it to Australian law, the claims could be considered to have been dealt with by the application of principles of substantive law, albeit that the Australian Consumer Law 2010, in terms, was never applied to the facts as it, as a matter of proper legal analysis, was never engaged. 55. [2006] VSC 175 at [73]; and see 7.5 above. 56. [1999] FCA 1421. The matter went on appeal but this particular point did not need to be decided: (2000) 171 ALR 192 at 208.

57. [1997] 2 VR 31. 58. O’Brien v Tanning Research Labs Inc (1988) 14 NSWLR 601. 59. International Arbitration Act 1974 (Cth) s 3(2). 60. IBSSL v Minerals Trading Corp [1996] 1 All ER 1017; Antclizo Shipping Corp v Food Corp of India (SC (WA), Bredmeyer M, 6 November 1998, unreported). 61. See note 60 above. 62. International Arbitration Act 1974 (Cth) s 30. 63. See note 62 above s 21. 64. See note 62 above s 20. 65. See note 62 above Sch 2, Art 35(2). 66. See note 62 above Sch 2, Art 36(1)(a). 67. See note 62 above Sch 2, Art 36(1)(b). 68. See note 62 above s 19. See also 43.10, 43.11. 69. See note 62 above Sch 2, Art 36(2). 70. See note 62 above Sch 2, Art 34. 71. See note 62 above Sch 3, Art 25(1). 72. See note 62 above Sch 3, Art 42(1). 73. See note 62 above Sch 3, Art 42(3). 74. See note 62 above s 35. 75. See note 62 above s 34.

Index References are to paragraphs A Act of state comity .… 10.2, 10.70, 10.84 foreign laws and institutions, exclusion of .… 18.1 foreign state immunity .… 10.68–10.84 immunity, in relation to .… 10.68–10.84 Administration of deceased estates administration .… 37.23–37.38 choice of law .… 37.27–37.38 jurisdiction .… 37.23–37.26 grant of probate or letters of administration .… 37.1–37.22 foreign executor, standing of .… 37.5–37.9 introduction .… 37.1–37.4 representation, grant of .… 37.10–37.16 title of grantee .… 37.17–37.22 Moçambique rule, exception to .… 3.139 service outside Australia .… 3.98–3.99 Admiralty jurisdiction arbitration agreements .… 7.21 clearly inappropriate forum .… 8.8

foreign courts, jurisdiction of .… 40.27, 40.59 foreign judgments .… 41.21 foreign state immunity .… 10.33 introduction .… 5.1 jurisdiction in personam .… 3.2 jurisdiction in rem .… 5.7–5.15 Moçambique rule, exception to .… 3.139 property .… 33.72 Adoption Australia, within .… 30.12–30.14 bilateral agreements with Australia .… 30.21–30.22 choice of law .… 30.9–30.10 Hague Convention on Intercountry Adoption (1993) .… 1.6, 30.6–30.7, 30.15–30.20 same-sex couples .… 30.17–30.20 introduction .… 30.1 jurisdiction .… 30.2–30.8 other countries .… 30.23–30.36 residence .… 13.34, 13.35 validity, declarations as to .… 30.37–30.38 Air carriers service outside Australia where actions against .… 3.101 Annulment and declarations (marriage) annulment, meaning of .… 26.31–26.35 choice of law .… 26.10 jurisdiction .… 26.2 declining .… 26.6

general .… 26.4–26.5 law of overseas country, effected in accordance with .… 26.26–26.30 annulment, meaning of .… 26.31–26.35 property and financial consequences see Matrimonial property recognition .… 26.12–26.25 applicant or respondent, whether .… 26.25 common law, at .… 26.36, 26.49–26.51 domicile .… 26.18 nationality .… 26.19–26.24 onus of proof .… 26.59–26.60 ordinary residence .… 26.15–26.17 refusal see refusal of recognition below time factor .… 26.53–26.58 refusal of recognition .… 26.61–26.77 natural justice, denial of .… 26.62–26.64 public policy .… 26.65–26.77 Anti-suit injunction anti-anti-anti-suit injunction .… 9.18 anti-anti-suit injunction .… 9.17 clearly inappropriate forum see Clearly inappropriate forum comity .… 9.4, 9.21 court’s processes, protection of .… 9.17–9.18 general principles .… 9.8–9.13 introduction .… 9.1–9.7 jurisdiction of court, protection of .… 9.14–9.18 legal right, in aid of .… 9.19–9.25 Mareva order, compared with .… 9.6

vexatious or oppressive proceedings, restraint on .… 9.26–9.32 Anton Piller order foreign defendant or third party .… 4.1 Appearance state and territorial courts .… 3.19–3.20 Applicable law .… 1.11 Arbitration choice of law .… 39.1–39.21 agreement, validity and effect of .… 39.2–39.4 curial law .… 39.7–39.14 introduction .… 39.1 Model Law see Model Law on International Commercial Arbitration (1998) sports-related arbitrations .… 39.15–39.21 substantive rules .… 39.5–39.6 international conventions .… 1.7 renvoi .… 15.18 service outside Australia .… 3.104 Arbitration agreements see also Forum selection clause continuing efficacy .… 7.28–7.37 discretionary agreements .… 7.79–7.93 existence and enforceability .… 7.10–7.27 introduction .… 7.1–7.9 mandatory forum law, overriding effect of .… 7.38–7.58 arbitrability .… 7.53–7.58 scope and construction .… 7.69–7.78 sole mode of dispute resolution, whether .… 7.59–7.68

Armed forces visiting Australia, foreign state immunity where .… 10.10–10.11 Assignment contract, distinguished from .… 33.5–33.13 intangibles, of .… 33.68 capacity to assign .… 33.67 Associations service outside Australia .… 3.102 Australian citizenship acquisition .… 13.29 loss .… 13.30 Australian Law Reform Commission (ALRC) Choice of Law Report contracts .… 6.46, 16.9, 19.5, 19.6, 19.10, 19.19, 19.20, 19.38, 19.49, 19.54, 19.64, 19.70 succession .… 38.41 torts .… 20.52, 20.67 B Bankruptcy and corporate insolvency comity .… 36.27, 36.28, 36.45 foreign bankruptcy and insolvency, effect of .… 36.3–36.10 foreign law, discharge under .… 36.9–36.10 foreign element, Australian proceedings with .… 36.46–36.65 administration in bankruptcy .… 36.62–36.64 Australian bankruptcy, effect of .… 36.56–36.61 discharge .… 36.65 introduction .… 36.1–36.2

Model Law see Model Law on Cross Border Insolvency (1997) single ‘law area’ in Australia .… 2.1 winding up in Australia .… 36.66–36.77 Burden of proof substance or procedure, whether matter of .… 16.27–16.35 C CAS see Court of Arbitration for Sport (CAS) Chancery .… 3.2, 3.132, 3.136 anti-suit injunctions .… 9.2 property .… 33.53 succession .… 38.50 welfare of children .… 28.10, 28.15 Change of venue state and territorial courts .… 3.21 Characterisation conflict problem, mechanics of resolving .… 14.11–14.52 analytical approach .… 14.19–14.40 equitable obligations .… 14.40 functional approach .… 14.41–14.52 introduction .… 14.11–14.18 connecting factor, determination of .… 14.8, 14.10, 14.53–14.58 introduction .… 1.4, 14.1–14.10 lex causae rules see Lex causae rules marriage .… 14.3, 14.4, 14.13–14.17, 14.53 misleading or deceptive conduct .… 14.7 Chattels change of situs .… 33.41–33.55

derivative title situation .… 33.44–33.47 paramount title situation .… 33.42–33.43 renvoi .… 33.48–33.55 intangibles .… 33.56–33.68 assignability .… 33.68 capacity to assign .… 33.67 authority, present state of .… 33.61–33.66 lex domicilii, lex situs, lex loci actus .… 33.56–33.60 living persons, transactions between .… 33.21–33.55 change of see change of situs above documents, rights embodied in .… 33.35–33.40 gifts .… 33.30–33.32 intangibles see intangibles above lex situs, rise of .… 33.21–33.29 retention of title clauses .… 33.33–33.34 Children abduction or retention see International abduction or retention (children) adoption see Adoption domicile of dependence .… 13.13–13.17 legitimacy see Legitimacy (children) legitimation see Legitimation (children) parentage see Parentage service outside Australia where custody etc .… 3.106 welfare see Welfare of children Choice of law administration of deceased estates .… 37.27–37.38 adoption .… 30.9–30.10

annulment and declarations .… 26.10 arbitration, in see Arbitration choice of law question .… 1.11 cross-vesting scheme .… 6.35–6.65 cross-vesting jurisdiction, exercise of .… 6.52–6.65 first rule .… 6.36–6.38 introduction .… 6.35 second rule .… 6.39–6.48 third rule .… 6.49–6.51 divorce .… 26.7–26.9 Federal jurisdiction .… 5.16–5.19 change of venue, effect of .… 5.19 federal legislative powers, extent of .… 2.4–2.6 legal separation .… 26.11 matrimonial property .… 27.31 rules see Choice of law rules s 118 Constitution, and see Full faith and credit (s 118 Constitution) Sweedman v Transport Accident Commission .… 2.30–2.34 technique in Australia .… 12.16–12.18 interest analysis .… 12.16–12.17, 12.23 multilateralism .… 12.18 theories see Choice of law theories United States, in .… 2.5 Choice of law rules characterisation see Characterisation equitable obligations see Equitable obligations generally .… 1.4, 1.13, 2.2

incidental question see Incidental question ‘indicative rule,’ or .… 14.2 marriage see Marriage objectives .… 12.19–12.23 localising laws .… 12.23 organic interpretation .… 12.22 reasonable expectations of parties .… 12.20 uniformity of results .… 12.21 renvoi see Renvoi restitution see Restitution succession see Succession torts see Torts Choice of law theories introduction .… 12.1 local law .… 12.6–12.7, 12.23 non-conflicts .… 12.8 objectives of rules introduction .… 12.19 true conflict, resolving a .… 12.9–12.15 Cavers .… 12.11 Currie .… 12.9–12.10 Ehrenzweig .… 12.12–12.13 Leflar/Juenger .… 12.14–12.15 vested rights .… 12.2–12.5, 12.16 CISG see United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG) Classification see Characterisation

Clearly inappropriate forum divorce, annulment or legal separation .… 26.6 forum non conveniens see Forum non conveniens doctrine introduction .… 8.1–8.3 operation of Voth test adequate alternative forum, availability of .… 8.33–8.36 foreign lex causae, relevance of .… 8.37–8.43, 20.10, 20.69 introduction .… 8.26 other factors .… 8.61–8.64 exclusive forum selection agreements .… 8.61 hardship to litigants .… 8.62 insurance, availability of .… 8.63 marriage breakdown, issues arising out of .… 8.64 proceedings pending elsewhere .… 8.44–8.53 exceptions .… 8.52–8.53 parallel proceedings on same subject matter .… 8.44–8.49 related proceedings .… 8.50–8.51 s 18 Australian Consumer Law, anchoring effect of .… 8.57–8.60 significance of factors, assessing .… 8.27–8.32 witnesses and other evidence, availability of .… 8.54–8.56 Voth test case decision .… 8.13–8.18 New Zealand, modification in .… 8.24 NSW and ACT, position in .… 8.25 operation see operation of Voth test above reaffirmation .… 8.23 summary and application .… 8.19–8.22

Code of Sports Related Arbitration (CAS) .… 39.15–39.21 Comity act of state .… 10.2, 10.70, 10.84 anti-suit injunction .… 9.4, 9.21 bankruptcy and corporate insolvency .… 36.27, 36.28, 36.45 foreign courts, jurisdiction of .… 40.8, 40.21–40.22, 40.88, 40.91, 40.95 overseas witness or document .… 11.8, 11.18, 11.37 ‘Common injunction’ .… 9.2 Common Pleas .… 3.2, 3.3 Companies see also Corporations foreign state immunity, exception from .… 10.25–10.28 Conflict of laws applicable law .… 1.11 choice of law see Choice of law domicile, acquisition of .… 13.27 foreign judgments see Enforcement of foreign judgments at common law jurisdiction see Jurisdiction law area see Law areas lex causae see Lex causae meaning .… 1.1–1.8 overcoming see Cross-vesting scheme; International conventions; Model laws; Uniform conflict rules sources see Sources of conflicts of laws three stages of problems .… 1.9–1.12 Constitution cross-vesting scheme, validity of .… 6.2–6.10 s 118 see Full faith and credit (s 118 Constitution)

Contempt audio or video link, testimony by .… 11.30–11.31 Contracts acceptance see offer and acceptance below ALRC Choice of Law Report .… 6.46, 16.9, 19.5, 19.6, 19.10, 19.19, 19.20, 19.38, 19.49, 19.54, 19.64, 19.70 assignment, distinguished from .… 33.5–33.13 breach of contract place of the wrong where inducing .… 20.20 remedies for .… 19.103–19.106 capacity to contract .… 19.50–19.55 characterisation .… 14.12 CISG Convention (1980) .… 1.7, 19.107–19.113 consent, reality of .… 19.66–19.70 consideration .… 19.71 construction and extent of obligation .… 19.86–19.89 creation .… 19.50–19.71 enforceability, laws in relation to .… 19.72–19.85 law of the forum .… 19.73–19.74 place of contracting .… 19.84–19.85 place of performance .… 19.75–19.83 proper law .… 19.72 formalities .… 19.56–19.58 grant of service outside Australia for actions .… 3.3, 3.9, 3.54–3.60 contract breached within jurisdiction .… 3.68–3.72 contract governed by the law of the forum .… 3.67 contract made within jurisdiction .… 3.60–3.66

international monetary obligations see International monetary obligations lex loci contractus .… 14.58, 15.14, 19.50, 19.53, 19.58, 19.65, 19.69, 22.7 lex loci solutionis .… 14.58, 22.17, 22.28, 22.29 mandatory laws of the forum .… 19.39–19.49 offer and acceptance .… 19.59–19.65 performance of obligation .… 19.90–19.92 proper law see Proper law of contracts renvoi .… 15.11–15.14 Rome Convention (1980) .… 15.11, 19.5, 19.6, 19.19, 19.20, 19.38, 19.70 tort, and .… 20.35–20.36 variation and extinction of obligation .… 19.93–19.102 Convention for the Unification of Certain Rules for International Carriage by Air (1999) see Montreal Convention (1999) Copyright see Intellectual property rights Corporations derivative actions .… 35.44–35.45 directors, obligations of .… 35.42–35.43 dissolution and amalgamation .… 35.46–35.49 foreign state immunity, exception from .… 10.25–10.28 insolvency see Bankruptcy and corporate insolvency introduction .… 35.1–35.3 jurisdiction .… 35.4–35.12 service see service of process below place of incorporation .… 35.36–35.37 powers and functions .… 35.38–35.41 recognition .… 35.26–35.35 service of process .… 3.4, 3.12, 3.15

corporations .… 35.15–35.25 outside Australia .… 3.102 partnerships .… 35.13–35.14 Counterclaim substance or procedure, whether matter of .… 16.47 Court of Arbitration for Sport (CAS) Code of Sports Related Arbitration .… 39.15–39.21 Cross-vesting scheme Australian conflicts law, overcoming .… 1.26 choice of law rules .… 6.35–6.65 cross-vesting jurisdiction, exercise of .… 6.52–6.65 first rule .… 6.36–6.38 introduction .… 6.35 second rule .… 6.39–6.48 third rule .… 6.49–6.51 Constitutional validity .… 6.2–6.10 function .… 6.1 introduction .… 6.1 onus, question of .… 6.34 States and Territories, cross-vesting between .… 6.11–6.12 transfer of proceedings .… 6.13–6.33 cross-vested jurisdictions, exercise of .… 6.21–6.26 interests of justice .… 6.27–6.33 related proceedings .… 6.19–6.20 D Damages and statutory compensation substance or procedure, whether matter of .… 16.14–16.19

Defamation place of the wrong .… 20.14–20.16 service outside Australia .… 3.73, 3.75 Design see Intellectual property rights Diplomatic and consular immunity Consular Convention see Vienna Convention on Consular Relations (1963) Diplomatic Convention see Vienna Convention on Diplomatic Intercourse (1961) international organisations .… 10.60–10.62 introduction .… 10.43–10.45 period of immunity .… 10.63–10.64 waiver of immunity .… 10.65–10.67 Dispute resolution arbitration agreement see Arbitration agreements forum selection clause see Forum selection clause Divorce .… 1.5, 1.6 choice of law .… 26.7–26.9 Hague Convention on Recognition of Divorces and Legal Separations (1970) .… 1.6, 26.14 jurisdiction .… 26.1 declining .… 26.6 general .… 26.4–26.5 law of overseas country, effected in accordance with .… 26.26–26.30 property and financial consequences see Matrimonial property recognition .… 26.12–26.25 applicant or respondent, whether .… 26.25 common law, at .… 26.36, 26.37–26.48 domicile .… 26.18

nationality .… 26.19–26.24 onus of proof .… 26.59–26.60 ordinary residence .… 26.15–26.17 refusal see refusal of recognition below time factor .… 26.53–26.58 refusal of recognition .… 26.61–26.77 natural justice, denial of .… 26.62–26.64 public policy .… 26.65–26.77 remarriage after divorce, prohibition on .… 26.78–26.79 Documents and discovery (outside Australia) foreign documents, admission of .… 11.45–11.49 letter of request .… 11.39–11.44 oral testimony supported by .… 11.44 subpoena for production .… 11.35–11.38 comity .… 11.37 Domicile acquisition, conflict of laws re .… 13.27 area of .… 13.6–13.7 choice, of .… 13.10, 13.19–13.27 acquisition .… 13.19–13.20 change of domicile, evidence of .… 13.23–13.26 loss of domicile .… 13.21 persons of unsound mind .… 13.22 dependence, of .… 13.10, 13.13–13.17 married women .… 13.18 minors .… 13.13–13.17 divorce, annulment or legal separation, recognition of .… 26.18

domicile, meaning of .… 13.5 Domicile Acts .… 13.4 federation or union, in .… 13.8–13.9 function of .… 13.5 introduction .… 13.2 marriage .… 14.28, 14.53 operation of law, by see dependence, of above origin, of .… 13.10, 13.11–13.12 residence, and .… 13.34 Donatio mortis causa .… 14.19, 14.20, 14.36 E Ecclesiastical courts .… 3.2, 32.2, 32.18, 32.25, 32.31, 37.1 Enforcement of foreign arbitral awards ICSID awards .… 43.1, 43.23–43.25 International Arbitration Act 1974 (Cth) .… 43.16–43.22 introduction .… 43.1–43.3 Model Law on International Commercial Arbitration (1998) .… 1.8, 7.6, 39.5, 39.13–39.14, 43.1–43.3 New York Convention (1958) .… 43.3–43.15 Enforcement of foreign judgments at common law see also Foreign Judgments Act 1991 (Cth) defences to enforcement .… 40.62–40.97 Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth) .… 40.95–40.97 fraud .… 40.65–40.74 introduction .… 40.62–40.64 natural justice .… 40.82–40.88 penal or revenue laws .… 40.89

perverse judgment .… 40.90–40.92 public policy .… 40.75–40.81 effect of foreign judgment .… 40.43–40.61 Anshun estoppel .… 40.56 cause of action estoppel .… 40.50–40.51 defective judgment .… 40.57–40.61 enforcement .… 40.46–40.49 introduction .… 40.43–40.45 issue estoppel .… 40.52–40.55 final and conclusive judgment, necessity for .… 40.30–40.36 foreign courts, jurisdiction of see Jurisdiction of foreign courts identity of parties .… 40.37 introduction .… 1.12, 40.1–40.3 nationality .… 13.28 service outside Australia .… 3.105 type of judgments .… 40.38–40.42 Enforcement of judgments Australian judgments within Australia foreign state immunity see Foreign state immunity full faith and credit see Full faith and credit (s 118 Constitution) introduction .… 42.1–42.3 Service and Execution of Process Act 1992 (Cth), under see Pt 6 Service and Execution of Process Act 1992 (Cth) foreign judgments see Enforcement of foreign judgments at common law; Foreign Judgments Act 1991 (Cth) Equitable obligations see also Restitution characterisation .… 14.40 choice of law rules .… 21.10–21.17

introduction .… 21.1–21.4 European Union Council Regulation 44/2001 .… 13.2 Evidence foreign law, expert evidence as manner of proving .… 17.17–17.21 foreign proceedings, for .… 11.50–11.55 audio- or video- linked testimony .… 11.53 letter of request .… 11.50–11.52 prohibition .… 11.54–11.55 Hague Evidence Convention (1970) .… 1.6, 11.2, 11.16–11.23, 11.50–11.52 overseas, from comity .… 11.8, 11.18, 11.37 documents see Documents and discovery (outside Australia) introduction .… 11.1–11.2 witness testimony see Witness testimony (outside Australia) substance or procedure, whether matter of .… 16.20–16.26 general principles .… 16.20–16.23 privilege .… 16.26 Statute of Frauds .… 16.24–16.25 Examination summons service outside Australia Bankruptcy Act 1966 (Cth), under .… 4.15 Corporations Act 2001 (Cth), under .… 4.14 Exchequer .… 3.2, 3.3, 33.22, 37.19 Exclusion of foreign laws and institutions act of state doctrine .… 18.1 foreign governmental interests, refusal to enforce .… 18.2–18.34 anti-trust legislation .… 18.29–18.34

exchange control laws .… 18.29–18.34 expropriation .… 18.22–18.28 import/export regulations .… 18.29–18.34 introduction .… 18.2–18.10 national security .… 18.29–18.34 penal laws .… 18.16–18.21 revenue laws .… 18.11–18.15 foreign status .… 18.55–18.62 introduction .… 18.1 public policy, protection in relation to .… 18.35–18.54 domestic Australian interests .… 18.38–18.43 external Australian interests .… 18.44–18.48 introduction .… 18.35–18.37 universal moral interests .… 18.49–18.54 retrospective laws .… 18.63–18.64 F Family Court transfer of proceedings .… 3.21 Federal Court introduction .… 5.1 jurisdiction .… 5.4–5.5 service of process .… 3.13 transfer of proceedings .… 3.21 Federal jurisdiction choice of law .… 5.16–5.19 change of venue, effect of .… 5.19 Commonwealth or a State, suits by or against .… 5.20–5.23

Federal Court, jurisdiction of .… 5.4–5.5 High Court Commonwealth or a State, suits by or against .… 5.20–5.23 diversity jurisdiction of .… 5.2–5.3 jurisdiction in rem in Admiralty .… 5.7–5.15 Fiduciary duty place of the wrong where breach .… 20.17–20.18 Foreign arbitral awards enforcement see Enforcement of foreign arbitral awards Foreign attachment .… 4.29 Foreign defendant service of process see Service outside Australia submission see Submission to jurisdiction Foreign judgments enforcement see Enforcement of foreign judgments at common law; Foreign Judgments Act 1991 (Cth) foreign judgment, meaning of .… 41.7 Foreign Judgments Act 1991 (Cth) courts to which Act extends .… 41.4–41.8 introduction .… 41.1–41.3 jurisdiction of foreign court .… 41.18–41.25 actions in personam .… 41.19–41.20 actions in rem .… 41.21 other actions .… 41.22–41.25 New Zealand judgments .… 41.32–41.33 registration of judgment .… 41.9–41.15 effect of .… 41.26–41.31

setting aside .… 41.16–41.17 Foreign land proceedings involving .… 3.117–3.126 Moçambique rule see Moçambique rule Foreign laws Australian proceedings, proof in see Pleading and proof (foreign law) exclusion of see Exclusion of foreign laws and institutions Foreign nationality .… 13.31–13.33 Foreign proceedings restraint see Anti-suit injunction taking evidence for .… 11.50–11.55 audio or video link .… 11.53 letter of request .… 11.50–11.52 prohibition .… 11.54–11.55 Foreign state immunity ‘absolute theory’ .… 10.1 act of state and non-justiciability .… 10.68–10.84 diplomatic and consular see Diplomatic and consular immunity enforcement of judgment or order .… 10.32–10.42 commercial property .… 10.36–10.39 immovable property .… 10.40 separate entities .… 10.41–10.42 waiver .… 10.34–10.35 entitlement to .… 10.3–10.9 exceptions from .… 10.14–10.29 commercial transactions .… 10.18–10.24 submission to waiver .… 10.15–10.17

tort, property, and company law .… 10.25–10.28 indirect immunity .… 10.12–10.13 introduction .… 10.1–10.2 ‘restrictive theory’ .… 10.2 service of process .… 10.30–10.31 torture, acts of .… 10.29 visiting armed forces .… 10.10–10.11 Forum .… 1.3 clearly inappropriate see Clearly inappropriate forum Forum non conveniens doctrine development of .… 8.3, 8.4–8.12, 8.21, 21.11, 27.28 Forum selection clause see also Arbitration agreements continuing efficacy .… 7.28–7.37 discretionary agreements .… 7.79–7.93 exclusive or non-exclusive, whether .… 7.59–7.68 existence and enforceability .… 7.10–7.27 introduction .… 7.1–7.9 mandatory forum law, overriding effect of .… 7.38–7.58 arbitrability .… 7.53–7.58 scope and construction .… 7.69–7.78 separability or severability, doctrine of .… 7.27 ‘Forum shopping’ .… 1.3 bankruptcy and corporate insolvency .… 36.64 clearly inappropriate forum .… 8.1 enforcement of judgments .… 12.21 equitable obligations .… 21.10, 21.11 pleading and proof (foreign law) .… 17.2

renvoi .… 15.8, 15.26, 15.27 torts .… 20.1 Fraud place of the wrong .… 20.17–20.18 Fraudulent misrepresentation place of the wrong .… 20.18 Full faith and credit (s 118 Constitution) choice of law rules, effect on .… 2.12–2.24 no effect .… 2.13–2.18 replacement of rules .… 2.19–2.24 enforcement of judgments .… 42.24–42.34 interpretations .… 2.12–2.24 introduction .… 1.24, 2.7–2.11 s 185 Evidence Act 1995 (Cth) .… 2.8–2.11 s 18 State and Territorial Laws and Records Recognition Act 1901 (Cth) .… 2.8 whether substantive effect .… 2.25–2.34 Sweedman v Transport Accident Commission .… 2.30–2.34 H Hague Conference on Private International Law .… 1.6, 12.21 Hague Convention on Celebration and Recognition of the Validity of Marriages (1978) see Hague Marriage Convention (1978) Hague Convention on Choice of Court Agreements (2005) .… 1.6 Hague Convention on Intercountry Adoption (1993) .… 1.6 recognition in Australia .… 30.6–30.7, 30.15–30.20 same-sex couples .… 30.17–30.20 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993) see Hague Convention on Intercountry

Adoption (1993) Hague Convention on Recognition of Divorces and Legal Separations (1970) .… 1.6, 26.14 Hague Convention on the Civil Aspects of International Child Abduction (1980) .… 1.6, 13.36, 28.23 children, abduction or retention of .… 28.37–28.40 application of Convention .… 28.41–28.51 Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions (1961) .… 1.6, 38.12, 38.14–38.20 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (2007) .… 1.6 Hague Convention on the Law Applicable to Certain Rights in Respect of Securities held with an Intermediary (2006) .… 1.6, 33.39 Hague Convention on the Law Applicable to Trusts and on their Recognition (1985) .… 1.6 assignment .… 34.7–34.14 inter vivos transaction, by .… 34.10–34.11 testamentary disposition, by .… 34.12–34.14 introduction .… 34.2–34.6 jurisdiction .… 34.37–34.39 operation of law, trusts created by .… 34.43–34.53 recognition .… 34.40–34.42 validity .… 34.15–34.36 mandatory laws .… 34.32–34.36 proper law of the trust .… 34.16–34.23 scope .… 34.24–34.31 Hague Convention on the Recognition and Enforcement of Decisions relating to Maintenance Obligations (1973) .… 1.6 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (1965) see Hague Service

Convention (1965) Hague Evidence Convention (1970) .… 1.6, 11.2, 11.16–11.23, 11.50–11.52 Hague Marriage Convention (1978) .… 1.6 validity of marriage .… 25.1, 25.42 Hague Rules .… 1.7 Hague Service Convention (1965) .… 3.26–3.35, 11.5–11.7 Hague-Visby Rules .… 1.7, 12.23 Hamburg Rules .… 1.7 High Court Commonwealth or a State, suits by or against .… 5.20–5.23 diversity jurisdiction .… 5.2–5.3 final arbiter, as .… 1.21 full faith and credit, interpretation of .… 2.12–2.18 service of process .… 3.13 I ICSID see International Centre for the Settlement of Investment Disputes (ICSID) Immunity act of state and non-justiciability .… 10.68–10.84 audio or video link, testimony by .… 11.32–11.34 foreign state see Foreign state immunity Incidental question introduction .… 15.28 marriage .… 15.31–15.33 matrimonial causes .… 15.30 succession .… 15.29–15.30, 15.33 title to moveable property .… 15.29–15.30

workers’ compensation .… 15.30 Injunction .… 3.3 anti-suit see Anti-suit injunction ‘common injunction’ .… 9.2 service outside Australia .… 3.97 Insolvency see Bankruptcy and corporate insolvency Intellectual property rights jurisdiction in personam .… 3.141–3.142 Interlocutory relief Anton Piller order see Anton Piller order examination summons see Examination summons foreign attachment .… 4.29 introduction .… 4.1–4.6 Mareva order see Mareva order subpoena see Subpoena International abduction or retention (children) access .… 28.80–28.84 common law principles .… 28.24–28.28 conditions on return, imposition of .… 28.77–28.79 Hague Convention on the Civil Aspects of International Child Abduction (1980) .… 1.6, 13.36, 28.23, 28.37–28.40 application of .… 28.41–28.51 introduction .… 28.23 refusal to return child, grounds for .… 28.63–28.75 residual discretion .… 28.76 ss 70G-70J Family Law Act 1975 (Cth) .… 28.29–28.36 wrongful removal or retention .… 28.52–28.62

rights of custody .… 28.59–28.62 International Arbitration Act 1974 (Cth) ICSID awards .… 43.1, 43.23–43.25 introduction .… 43.1–43.3 Model Law on International Commercial Arbitration (1998) .… 1.8, 7.6, 39.5, 39.13–39.14, 43.1–43.3 New York Convention (1958) .… 43.3–43.15 International Centre for the Settlement of Investment Disputes (ICSID) foreign arbitral awards, enforcement of .… 43.1, 43.23–43.25 International conventions see also under individual titles generally .… 1.4, 1.7, 1.8 International Institute for the Unification of Private Law see UNIDROIT International law .… 1.4 International monetary obligations CPI clause .… 23.8 currency trading .… 23.22–23.23 date of conversion .… 23.16–23.18 introduction .… 23.1–23.2 judgment currency of .… 23.10–23.15 foreign currency, enforcement for .… 23.19–23.21 law of currency, role of .… 23.7 money of account, determination of .… 23.3–23.6 money of payment .… 23.9 protective clauses .… 23.8 International trade .… 1.5 International transport

conventions .… 1.7 Inter vivos, gifts made .… 14.19, 14.20 J Judgments definition .… 42.8–42.14 enforcement see Enforcement of judgments execution .… 16.48 mode .… 16.48 Jurisdiction .… 1.10–1.11 administration of deceased estates .… 37.23–37.26 Admiralty See Admiralty jurisdiction adoption .… 30.2–30.8 agreement see Forum selection clause annulment and declarations .… 26.2 declining .… 26.6 general .… 26.4–26.5 corporations .… 35.4–35.12 divorce .… 26.1 declining .… 26.6 general .… 26.4–26.5 Federal see Federal jurisdiction foreign courts, of see Jurisdiction of foreign courts legal separation .… 26.3 declining .… 26.6 general .… 26.4–26.5 matrimonial property .… 27.23–27.24 declining .… 27.28

extra-territorial jurisdiction .… 27.25–27.27 mental incapacity .… 31.1–31.4 in personam see Jurisdiction in personam succession .… 38.2–38.3 trusts .… 34.37–34.39 welfare of children .… 28.1–28.21 common law, at .… 28.10–28.16 discretion to decline .… 28.17–28.21 statute, by .… 28.1–28.9 Jurisdiction clause see Forum selection clause Jurisdiction in personam clearly inappropriate forum see Clearly inappropriate forum ‘common injunction’ .… 9.2 foreign land, proceedings involving .… 3.117–3.126 Moçambique rule see Moçambique rule intellectual property rights .… 3.141–3.142 introduction .… 3.1–3.4 residence .… 13.34, 13.35 service of process see Service of process submission see Submission to jurisdiction Jurisdiction of foreign courts defendant nationality or domicile of .… 40.23–40.25 presence or residence of .… 40.6–40.11 voluntary submission by see voluntary submission by defendant below Foreign Judgments Act 1991 (Cth), under see Foreign Judgments Act 1991 (Cth)

introduction .… 40.4–40.5 judgments in rem .… 40.27–40.29 reciprocity or comity .… 40.8, 40.21–40.22, 40.88, 40.91, 40.95 subject matter or cause of action .… 40.26 voluntary submission by defendant .… 40.12–40.20 agreement, by .… 40.18–40.20 appearance, by .… 40.13–40.17 K King’s Bench .… 3.2, 3.3 L Law areas .… 1.13–1.17 Australia, in .… 1.18–1.21, 2.1, 2.2 definition .… 1.16 Legal separation (marriage) choice of law .… 26.11 jurisdiction declining .… 26.6 general .… 26.4–26.5 law of overseas country, effected in accordance with .… 26.26–26.30 property and financial consequences see Matrimonial property recognition .… 26.12–26.25 applicant or respondent, whether .… 26.25 common law, at .… 26.36, 26.52 domicile .… 26.18 nationality .… 26.19–26.24 onus of proof .… 26.59–26.60

ordinary residence .… 26.15–26.17 refusal see refusal of recognition below time factor .… 26.53–26.58 refusal of recognition .… 26.61–26.77 natural justice, denial of .… 26.62–26.64 public policy .… 26.65–26.77 Legitimacy (children) .… 29.3–29.17 common law, at .… 29.3–29.6 conflicts rule .… 29.7–29.13 void marriages .… 29.4–29.6 declaration of .… 29.30–29.31 ex-nuptial children .… 29.14–29.17 introduction .… 29.1–29.2 Legitimation (children) .… 29.18–29.29 Australian law, under .… 29.18–29.20 foreign law, under .… 29.21–29.29 common law, at .… 29.21–29.24 Marriage Act 1961 (Cth), under .… 29.25–29.29 introduction .… 29.1–29.2 Letter of request documentary evidence .… 11.39–11.44 oral testimony supported by .… 11.44 foreign proceedings, taking evidence for .… 11.50–11.52 witness testimony .… 11.16–11.23 Lex arbitri .… 39.7 Lex causae see also Substance and procedure Admiralty jurisdiction .… 5.10

clearly inappropriate forum .… 8.1 foreign lex causae .… 8.37–8.43, 20.10, 20.69 pleading and proof (foreign law) .… 17.1 property .… 33.72 renvoi .… 15.12, 15.14, 15.23, 15.25 restitution .… 14.6 rules see Lex causae rules selection .… 14.8–14.10, 15.14, 15.23, 15.25 Lex causae rules characterisation .… 14.2–14.10, 14.35 ‘dispositive rule,’ or .… 14.2 Lex domicilii characterisation .… 14.19, 14.49 contracts .… 19.50, 19.53 family law .… 25.16 marriage, renvoi .… 15.17 property chattels .… 33.56–33.60 movables, distinguished from immovables .… 32.16 trusts .… 34.47 Lex fori .… 1.3, 2.2 see also Substance and procedure Admiralty jurisdiction .… 5.10 arbitration agreements .… 7.11, 7.13, 7.25, 7.37 bankruptcy and corporate insolvency .… 36.62, 36.63 characterisation .… 14.23, 14.32–14.35, 14.39, 14.47, 14.49, 14.55 cross-vesting scheme .… 6.49 deceased estates .… 37.27, 37.35

domicile .… 13.27 enforcement of judgments .… 11.32–11.33, 12.3, 12.6, 12.8, 12.12–12.13 ‘enlightened’ .… 14.9 family law .… 25.16, 26.7, 26.9, 26.34, 27.37 foreign arbitral awards .… 43.8 obligations .… 19.65, 19.69, 19.103, 19.106, 20.31, 20.46, 21.14, 22.7, 22.34 pleading and proof (foreign law) .… 17.40, 17.44, 17.45 property .… 32.9, 32.13, 33.72, 33.77 renvoi .… 15.13, 15.26 succession .… 38.26, 38.33 trusts .… 34.46–34.47 Lex loci actus .… 33.56–33.60 Lex loci celebrationis duration of marriage .… 24.53 formal validity .… 25.4–25.23 nature of marriage .… 24.20, 24.24, 24.31, 24.35 same-sex relationships .… 24.10, 24.16 Lex loci contractus capacity to contract .… 19.50, 19.53 negotiable instruments .… 22.7 characterisation .… 14.58 consent, reality of .… 19.69 formalities .… 19.58 offer and acceptance .… 19.65 renvoi .… 15.14 Lex loci solutionis .… 14.58, 22.17, 22.28, 22.29 Lex locus delicti .… 1.3

bankruptcy and corporate insolvency .… 36.10 characterisation .… 14.47 enforcement of judgments .… 12.10, 12.16, 12.18 renvoi .… 15.8, 15.10, 15.14 substance and procedure .… 16.16, 16.29, 16.32 torts see Place of the wrong (torts) Lex situs see also generally Property; Succession Admiralty jurisdiction .… 5.10 adoption .… 30.34 bankruptcy and corporate insolvency .… 36.6, 36.7, 36.58 characterisation .… 14.6, 14.19, 14.31 chattels .… 33.21–33.29, 33.56–33.60 contracts .… 19.55 foreign courts, jurisdiction of .… 40.28, 40.29 immovables, matrimonial property .… 27.17–27.21 negotiable instruments, assignment .… 22.21–22.26 renvoi .… 15.15 restitution .… 21.5 trusts .… 34.47 Limitations in time substance or procedure, whether matter of .… 16.8–16.13 Australia and New Zealand, within .… 16.8–16.10 international cases .… 16.11–16.13 M Maintenance child maintenance .… 27.46–27.52 child support .… 27.42–27.45

conversion of currency .… 27.78 Hague Conventions (1973) and (2007) .… 1.6 international recognition and enforcement .… 27.53–27.78 Australian maintenance liabilities overseas .… 27.60 Family Law Regulations, under see Pt III Div 2 Family Law Regulations below general .… 27.53 before 1 July 2000, orders registered .… 27.54 New York Convention (1958) .… 27.75–27.77 New Zealand decisions .… 27.74 overseas maintenance liabilities in Australia .… 27.55–27.59 Pt III Div 2 Family Law Regulations, proceedings under .… 27.61–27.73 Australian courts, orders made by .… 27.71–27.73 overseas courts, orders made by .… 27.62–27.70 spousal .… 27.41 Mareva order anti-suit injunction, compared with .… 9.6 defendant abroad: assets within Australia .… 4.24 defendant and assets outside Australia .… 4.25–4.26 defendant within jurisdiction: assets abroad .… 4.23 general principles .… 4.17–4.22 third parties .… 4.27–4.28 Marriage .… 1.5 annulment and declarations see Annulment and declarations (marriage) characterisation .… 14.3, 14.4, 14.13–14.17, 14.53 definition .… 24.1–24.5 divorce see Divorce

incidental question .… 15.31–15.33 legal separation see Legal separation (marriage) nature of marriage, determination of .… 24.17–24.36 time of the marriage .… 24.26–24.36 which law .… 24.20–24.25 ‘personal law,’ and .… 13.1, 13.5 polygamous see Polygamous marriage renvoi .… 15.17 same-sex and transgender .… 24.6–24.9 standing in Australia .… 24.10–24.16 single ‘law area’ in Australia .… 2.1 unlimited in duration .… 24.53 validity see Validity of marriage Matrimonial causes annulment see Annulment and declarations (marriage) divorce see Divorce incidental question .… 15.30 legal separation see Legal separation (marriage) maintenance see Maintenance nationality .… 13.28 property, settlement of see Matrimonial property renvoi .… 15.17 residence .… 13.34, 13.35 single ‘law area’ in Australia .… 2.1 Matrimonial property anti-suit injunctions .… 27.29–27.30 choice of law .… 27.31

de facto relationships .… 27.35–27.40 immovables .… 27.17–27.22 lex situs .… 27.17–27.21 introduction .… 27.2–27.3 jurisdiction .… 27.23–27.24 declining .… 27.28 extra-territorial jurisdiction .… 27.25–27.27 matrimonial domicile, change of .… 27.8–27.16 movables .… 27.4–27.7 recognition of orders .… 27.32–27.34 same-sex relationships .… 27.35–27.40 Mental incapacity foreign orders, effect of .… 31.3–31.12 jurisdiction .… 31.1–31.4 Minors see Children Misleading or deceptive conduct characterisation .… 14.7 service outside Australia .… 3.78–3.82 Misrepresentation service outside Australia .… 3.76 Moçambique rule background and application .… 3.118–3.126 exceptions to .… 3.130–3.140 Admiralty, actions in .… 3.139 contract, actions in .… 3.131–3.138 estate or trust, administration of .… 3.139 foreign land title, determination of .… 3.140

personal equity between parties .… 3.131–3.139 NSW and ACT, position in .… 3.127–3.129, 8.25 Model Law on Cross Border Insolvency (1997) .… 1.8 concurrent bankruptcy and insolvency .… 36.23–36.36 foreign order, recognition of .… 36.30–36.36 foreign main proceeding .… 36.18–36.22 international judicial co-operation .… 36.37–36.45 purpose and key features .… 36.11–36.17 Model Law on Electronic Commerce (1996) .… 1.8 Model Law on International Commercial Arbitration (1998) .… 1.8, 7.6, 39.5, 39.13–39.14, 43.1–43.3 Model laws see also under individual titles generally .… 1.8 Montreal Convention (1999) .… 1.7 Muslim law .… 1.15 N Nationality Australian citizenship .… 13.29–13.30 acquisition .… 13.29 loss .… 13.30 divorce, annulment or legal separation, recognition of .… 26.19–26.24 foreign nationality .… 13.31–13.33 introduction .… 13.2, 13.28–13.33 Negligence place of the wrong .… 20.9–20.13 Negotiable instruments assignment .… 22.20–22.26

Bills of Exchange Act 1909 (Cth), under .… 22.21–22.25 Cheques Act 1986 (Cth), under .… 22.26 Australia, negotiability in .… 22.5–22.6 capacity .… 22.7–22.12 Bills of Exchange Act 1909 (Cth), under .… 22.7 Cheques Act 1986 (Cth), under .… 22.8 place of contracting .… 22.9–22.12 formal validity .… 22.13–22.16 Bills of Exchange Act 1909 (Cth), under .… 22.13 Cheques Act 1986 (Cth), under .… 22.14 foreign bills and cheques .… 22.16 stamp duty .… 22.15 interpretation and effect .… 22.17–22.19 Bills of Exchange Act 1909 (Cth), under .… 22.17–22.18 Cheques Act 1986 (Cth), under .… 22.19 introduction .… 22.1–22.3 lex situs .… 22.21–22.26 one law or several, whether .… 22.4 other negotiable instruments .… 22.37 performance and discharge .… 22.27–22.31 Bills of Exchange Act 1909 (Cth), under .… 22.27–22.29 Cheques Act 1986 (Cth), under .… 22.30–22.31 presentment, protest and dishonour .… 22.32–22.36 Bills of Exchange Act 1909 (Cth), under .… 22.32–22.35 Cheques Act 1986 (Cth), under .… 22.36 situs of property .… 32.40–32.41 New York Convention (1958) .… 1.7, 7.6

foreign arbitral awards, enforcement of .… 43.3–43.15 maintenance claims .… 27.75–27.77 New Zealand Australian subpoena, service of .… 4.8, 11.12–11.13 limitations in time .… 16.8–16.10 Trans-Tasman Proceedings Act 2010 (Cth) .… 41.32–41.33 Voth ‘Clearly inappropriate forum’ test, modification of .… 8.24 O Oath or affirmation audio or video link, testimony by .… 11.24–11.34 Onus of proof divorce, annulment or legal separation, recognition of .… 26.59–26.60 torts .… 20.68–20.70 P Parentage .… 29.32–29.45 artificial insemination .… 29.38–29.45 introduction .… 29.1–29.2 proof of parenthood .… 29.33–29.37 in vitro fertilisation .… 29.38–29.45 Parties to an action substance or procedure, whether matter of .… 16.36–16.41 Passing off place of the wrong .… 20.19 Patent see Intellectual property rights Perjury audio or video link, testimony by .… 11.30–11.31

Personal law development .… 1.13–1.15, 13.1 domicile see Domicile family relationships .… 13.1 marriage, and .… 13.1, 13.5 nationality see Nationality residence see Residence succession, and .… 13.1, 13.5 Person under legal incapacity service outside Australia .… 3.106 Place of the wrong (torts) .… 20.1–20.33 confidence, breach of .… 20.17–20.18 defamation .… 20.14–20.16 fiduciary duty, breach of .… 20.17–20.18 fraud .… 20.17–20.18 inducing breach of contract .… 20.20 introduction .… 20.1–20.8 negligence .… 20.9–20.13 passing off .… 20.19 torts committed in the forum .… 20.21 Pleading and proof (foreign law) expert evidence .… 17.17–17.21 effect of evidence .… 17.30–17.33 who is expert .… 17.22–17.29 introduction .… 17.1–17.4 law of other Australian States and Territories .… 17.34–17.36 manner of proving .… 17.10–17.29

expert evidence see expert evidence above statute, pursuant to .… 17.10–17.16 presumption .… 17.37–17.47 limitations on .… 17.41–17.47 question of fact .… 17.5–17.9 torts .… 20.68–20.70 United Kingdom statutes .… 17.35 Polygamous marriage capacity to enter into .… 24.37–24.43 common law, at .… 24.37–24.40 Marriage Act 1961 (Cth), under .… 24.41–24.43 matrimonial relief .… 24.50–24.52 nature of marriage, determination of .… 24.17–24.36 time of marriage .… 24.26–24.36 which law .… 24.20–24.25 standing in Australia .… 24.44–24.49 Preliminary question see Incidental question Presumption substance of procedure, whether matter of .… 16.27–16.35 Priority claims substance or procedure, whether matter of .… 16.42–16.43 Private international law .… 1.4, 2.2 see also Hague Conference on Private International Law Private property expropriation .… 1.4 Privilege audio or video link, testimony by .… 11.32–11.34

substance or procedure, whether matter of .… 16.26 Procedure see Substance and procedure Proceedings foreign see Foreign proceedings foreign law, pleading and proof of see Pleading and proof (foreign law) Proper law of contracts enforceability .… 19.72 express selection .… 19.6–19.21 expression of choice .… 19.8–19.14 incorporation, doctrine of .… 9.20, 19.7 limits on choice .… 19.15–19.21 inference, choice of law by .… 19.22–19.27 introduction .… 19.1–19.5 unexpressed or non-inferred choice .… 19.28–19.38 Property change of situs .… 33.41–33.55 derivative title situation .… 33.44–33.47 paramount title situation .… 33.42–33.43 renvoi .… 33.48–33.55 characterisation .… 14.11, 14.12 chattels .… 33.21–33.55 documents, rights embodied in .… 33.35–33.40 gifts .… 33.30–33.32 intangibles see intangibles below lex situs change of see change of situs above rise of .… 33.21–33.29

retention of title clauses .… 33.33–33.34 foreign state immunity commercial property .… 10.36–10.39 exception from .… 10.25–10.28 immovables capacity to convey .… 33.17–33.20 living persons, transactions between .… 33.14–33.20 matrimonial property see Matrimonial property movables, distinguished from .… 32.1–32.16 intangibles .… 33.56–33.68 assignability .… 33.68 capacity to assign .… 33.67 authority, present state of .… 33.61–33.66 within the jurisdiction, service outside Australia where .… 3.91–3.96 lex domicilii, lex situs, lex loci actus .… 33.56–33.60 living persons, transactions between chattels see chattels above contract and assignment, distinction between .… 33.5–33.13 general principles .… 33.1–33.13 immovables see immovables above intangibles see intangibles above priorities .… 33.69–33.78 matrimonial see Matrimonial property mental incapacity see Mental incapacity movables immovables, distinguished from .… 32.1–32.16 matrimonial property see Matrimonial property

situs of property .… 32.17–32.46 choses in action .… 32.31–32.39 generally .… 32.17–32.23 land, interests in .… 32.24–32.26 negotiable instruments .… 32.40–32.41 shares in company .… 32.42–32.46 tangible goods, interests in .… 32.27–32.30 title to moveable property incidental question .… 15.29–15.30 renvoi and .… 15.15 Pt 6 Service and Execution of Process Act 1992 (Cth) introduction .… 42.2, 42.4 registration of judgments .… 42.15–42.17 challenge to registered judgment .… 42.18–42.20 effect of .… 42.21–42.23 scope of Pt 6 .… 42.5–42.14 Public international law .… 1.4 R Rectification .… 3.3, 3.52, 7.57, 26.35, 32.43 Remedy substance or procedure, whether matter of .… 16.44–16.46 Renvoi case law, application to .… 15.10–15.18, 33.54, 39.21 contract .… 15.11–15.14 tort see Neilson below chattels, change of situs of .… 33.48–33.55 double renvoi, critique of .… 15.19–15.27

‘foreign court’ theory, critique of see double renvoi above interpretation, matter for .… 15.34 introduction .… 1.4, 15.1–15.3 lex causae .… 15.12, 15.14, 15.23, 15.25 marriage .… 15.17 moveable property, title to .… 15.15 Neilson v Overseas Projects Corporation of Victoria Ltd .… 15.6–15.9, 15.14, 15.19, 15.23, 15.25, 15.27 possible solutions .… 15.4–15.5 succession .… 15.16 tort see Neilson above Rescission .… 3.3, 3.52, 3.54 adoption .… 30.13 arbitration agreements .… 7.47 domicile .… 13.15 foreign courts, jurisdiction of .… 40.8 Residence adoption .… 13.34 determination .… 13.35 domicile, and .… 13.34 foreign courts, jurisdiction of .… 40.6–40.11 ‘habitual residence’ .… 13.34–13.39 introduction .… 13.2 jurisdiction in personam .… 13.34, 13.35 matrimonial causes .… 13.34, 13.35 more than one .… 13.36 ‘ordinary residence’ .… 13.34–13.39

divorce, annulment or legal separation .… 26.15–26.17 ‘ordinarily resident,’ definition of .… 13.35 residence, meaning of .… 13.37–13.39 residence simpliciter .… 13.34 taxes, and .… 13.35 Restitution see also Equitable obligations characterisation .… 14.6, 14.11 choice of law rule .… 21.5–21.9 introduction .… 21.1–21.4 Rome Convention on the Law Applicable to Contractual Obligations (1980) .… 15.11, 19.5, 19.6, 19.19, 19.20, 19.38, 19.70 S Sale of goods international conventions .… 1.7 Secured rights substance or procedure, whether matter of .… 16.42–16.43 Service and Execution of Process Act 1992 (Cth) Pt 6 see Pt 6 Service and Execution of Process Act 1992 (Cth) Service of process .… 1.26 ancillary process .… 4.2–4.3 corporations see Corporations foreign state immunity, in relation to .… 10.30–10.31 within jurisdiction see Service within jurisdiction outside Australia see Service outside Australia outside jurisdiction see Service outside jurisdiction Service outside Australia actions in contract .… 3.54–3.60

contract breached within jurisdiction .… 3.68–3.72 contract governed by the law of the forum .… 3.67 contract made within jurisdiction .… 3.60–3.66 administration of estates .… 3.98–3.99 air carriers, actions against .… 3.101 arbitration .… 3.104 associations .… 3.102 cause of action arising in jurisdiction .… 3.53 corporations .… 3.102 discretion, exercise of .… 3.48–3.50 domicile in Australia .… 3.84 foreign judgments, enforcement of .… 3.105 general principles .… 3.36–3.40 grounds for .… 3.51–3.52 Hague Service Convention (1965) .… 3.26–3.35, 11.5–11.7 injunctive relief .… 3.97 minors, custody etc of .… 3.106 misleading or deceptive conduct .… 3.78–3.82 necessary or proper party .… 3.86–3.90 ordinarily resident in Australia .… 3.84 person under legal incapacity .… 3.106 prior leave not required .… 3.41–3.42 required .… 3.43–3.47 property within the jurisdiction .… 3.91–3.96 residual clause .… 3.107–3.109 rules of courts .… 3.49

Federal Court Rules .… 3.49 statutes and delegated legislation, construction and enforcement of .… 3.83 submission to the jurisdiction .… 3.85 taxes .… 3.103 tort .… 3.73–3.77 breach of contract .… 3.77 defamation .… 3.73, 3.75 misrepresentation .… 3.76 trusts .… 3.100 Service outside jurisdiction within Australia Federal Court .… 3.13 High Court .… 3.13 state courts see State and territorial courts outside Australia see Service outside Australia Service within jurisdiction .… 3.5–3.11 Set-off substance or procedure, whether matter of .… 16.47 Sources of conflicts of laws English decisions, adaptation of .… 1.22 international conventions, adoption of .… 1.25 judge-made law .… 1.23 United States Constitution, copied provisions of .… 1.24 Specific performance .… 3.3, 14.40, 33.18, 33.19, 40.3, 42.2, 42.9 State and territorial courts appearance .… 3.19–3.20 change of venue .… 3.21

service of process .… 3.14–3.18 stay of proceedings .… 3.21, 3.24–3.25 subpoena for attendance .… 11.8–11.10 Supreme Courts, transfer of proceedings between .… 3.22 Stay of proceedings arbitration agreement see Arbitration agreements clearly inappropriate forum see Clearly inappropriate forum forum selection see Forum selection clause state and territorial courts .… 3.21, 3.24–3.25 Submission to jurisdiction agreement in advance .… 3.111–3.112 appearance .… 3.113–3.115 conduct in proceedings .… 3.113–3.115 introduction .… 3.110 plaintiff, bringing action as .… 3.116 Subpoena Australia, outside .… 4.9–4.15 Australia, within .… 4.7 documents and discovery .… 11.35–11.44 New Zealand, service of Australian subpoena in .… 4.8, 11.12–11.13 Substance and procedure burden of proof .… 16.27–16.35 counterclaim .… 16.47 damages and statutory compensation .… 16.14–16.19 distinction between .… 16.1–16.7 evidence .… 16.20–16.26 general principles .… 16.20–16.23

privilege .… 16.26 Statute of Frauds .… 16.24–16.25 judgment and execution .… 16.48 limitations in time .… 16.8–16.13 Australia and New Zealand, within .… 16.8–16.10 international cases .… 16.11–16.13 parties to an action .… 16.36–16.41 presumptions .… 16.27–16.35 priority claims .… 16.42–16.43 remedy .… 16.44–16.46 secured rights .… 16.42–16.43 set-off .… 16.47 torts see Torts Succession ALRC Choice of Law Report .… 38.41 appointment, power of .… 38.58–38.76 capacity .… 38.64–38.65 construction .… 38.70–38.71 essential validity .… 38.72–38.75 formal validity .… 38.66–38.69 revocation .… 38.76 choice of law rules .… 14.3 election, doctrine of .… 38.50–38.57 foreign state immunity, exception from .… 10.27 incidental question .… 15.29–15.30, 15.33 intestate succession .… 38.4–38.7 immovables .… 38.7

movables .… 38.4–38.6 introduction .… 38.1 jurisdiction .… 38.2–38.3 ‘personal law,’ and .… 13.1, 13.5 renvoi .… 15.16 testator’s family maintenance legislation .… 38.42–38.49 wills see Wills Supreme Courts transfer of proceedings between .… 3.21, 3.22 T Taxes residence, and .… 13.35 service outside Australia .… 3.103 Torts ALRC Choice of Law Report .… 20.52, 20.67 Australian Consumer Law (Cth), proceedings under .… 20.61–20.63 characterisation .… 14.3, 14.53 ‘choice of law revolution’ .… 20.1 civil liability legislation .… 20.22–20.33 contract, and .… 20.35–20.36 ‘double actionability’ rule .… 20.2 family torts .… 20.64–20.67 foreign state immunity, exception from .… 10.25–10.28 introduction .… 20.1–20.4 law of the forum .… 20.1 Neilson v Overseas Projects Corporation of Victoria Ltd .… 15.6–15.9, 15.14, 15.19, 15.23, 15.25, 15.27

place of the wrong see Place of the wrong (torts) pleading and onus of proof .… 20.68–20.70 recourse and contribution, rights of .… 20.38–20.53 contribution or indemnity .… 20.44–20.49 insurer’s indemnity .… 20.39–20.43 third party insurer .… 20.50–20.53 related issues .… 20.34–20.70 service outside Australia .… 3.73–3.77 ships or aircraft, committed on .… 20.71–20.77 substance or procedure .… 20.22–20.33 introduction .… 20.22 procedural rules .… 20.31–20.33 substantive rules .… 20.23–20.30 survival of actions .… 20.56–20.60 vicarious liability .… 20.3, 20.37, 20.50 wrongful death .… 20.54–20.55 Trade mark see Intellectual property rights Transfer of proceedings cross-vesting scheme .… 6.13–6.33 cross-vested jurisdictions, exercise of .… 6.21–6.26 interests of justice .… 6.27–6.33 related proceedings .… 6.19–6.20 Family Court .… 3.21 Federal Court .… 3.21 Supreme Courts, between .… 3.21, 3.22 Transnational law .… 1.7 Trans-Tasman Proceedings Act 2010 (Cth) .… 41.32–41.33

Trusts assignment .… 34.7–34.14 inter vivos transaction, by .… 34.10–34.11 testamentary disposition, by .… 34.12–34.14 definition .… 34.5 foreign state immunity, exception from .… 10.27 Hague Convention see Hague Convention on the Law Applicable to Trusts and on their Recognition (1985) introduction .… 34.1 jurisdiction .… 34.37–34.39 Moçambique rule, exception to .… 3.139 operation of law, trusts created by .… 34.43–34.53 recognition .… 34.40–34.42 service outside Australia .… 3.100 trust, meaning of .… 34.5 validity .… 34.15–34.36 mandatory laws .… 34.32–34.36 proper law of the trust .… 34.16–34.23 scope .… 34.24–34.31 U UNCITRAL .… 1.7 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) see New York Convention (1958) Model Law on Cross Border Insolvency (1997) see Model Law on Cross Border Insolvency (1997) Model Law on Electronic Commerce (1996) .… 1.8 Model Law on International Commercial Arbitration (1998) .… 1.8, 7.6, 39.5, 39.13–39.14, 43.1–43.3

UNIDROIT .… 1.7 Uniform conflict rules .… 1.6 Unitary system of law definition .… 1.16 United Nations Commission for International Trade Law see UNCITRAL United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG) .… 1.7, 19.107–19.113 Unjust enrichment see Restitution V Validity of marriage bigamy .… 25.53–25.56 common law, recognition at .… 25.2–25.41 essential validity .… 25.2–25.3, 25.24–25.40 formal validity see formal validity below public policy .… 25.41 consent .… 25.61–25.68 diplomatic marriages .… 25.75–25.82 within Australia .… 25.76 foreign country under Australian law, in .… 25.77–25.80 foreign country under foreign law, in .… 25.81–25.82 foreign marriages, recognition of .… 25.1 foreign parties, involving .… 25.74 formal validity .… 25.2–25.23 lex loci celebrationis and exceptions .… 25.4–25.23 Hague Marriage Convention (1978), recognition under .… 1.6, 25.1, 25.42 introduction .… 25.1 marriageable age .… 25.58–25.60

overseas marriage, proof of .… 25.72–25.73 prohibited relationship .… 25.57 Pt VA Marriage Act 1961 (Cth) basic rule .… 25.44–25.46 application and exceptions .… 25.47–25.52 introduction .… 25.1, 25.42–25.43 public policy .… 25.71 voidable marriages .… 25.69–25.70 Vicarious liability tort, and .… 20.3, 20.37, 20.50 Vienna Convention on Consular Relations (1963) immunity, personnel entitled to .… 10.44–10.45, 10.56–10.59 Vienna Convention on Diplomatic Intercourse (1961) immunity, entitlement to .… 10.44–10.55 administrative and technical staff .… 10.52–10.53 diplomatic agents .… 10.47–10.51 private servants .… 10.55 service staff .… 10.54 Vienna Sales Convention (1980) see United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG) W Welfare of children abduction or retention see International abduction or retention (children) choice of law .… 28.22 foreign guardianship orders .… 28.85–28.88 jurisdiction .… 28.1–28.21 common law, at .… 28.10–28.16

discretion to decline .… 28.17–28.21 statute, by .… 28.1–28.9 Wills capacity capacity to take .… 38.11 immovables .… 38.10 lack of capacity .… 38.8 movables .… 38.9 construction .… 38.21–38.25 immovables .… 38.25 movables .… 38.23–38.24 essential validity .… 38.26–38.29 formal validity common law, at .… 38.12–38.13 Hague Convention (1961) .… 1.6, 38.12, 38.14–38.20 nationality .… 13.28 residence .… 13.34 revocation .… 38.30–38.41 intention, by .… 38.31–38.37 operation of law, by .… 38.38–38.41 Witness testimony (outside Australia) audio or video link .… 11.24–11.34 foreign proceedings, for .… 11.53 oath or affirmation .… 11.28–11.29 perjury and contempt .… 11.30–11.31 privileges and immunities .… 11.32–11.34 Australian-appointed examiner abroad, examination by .… 11.14–11.15

introduction .… 11.3 letter of request .… 11.16–11.23 subpoena for attendance .… 11.4–11.13 comity .… 11.8, 11.18 New Zealand .… 11.12–11.13 Words and phrases act of bankruptcy .… 36.49 annulment .… 26.31–26.35 appropriate .… 6.50 commercial property .… 10.36 construction (of wills) .… 38.21–38.25 contract governed by the law of the forum .… 3.67 court .… 3.17 domicile .… 13.4 exclusive .… 7.65 foreign judgment .… 41.7 forum .… 1.3 guardian .… 28.88 habitual residence .… 13.37–13.39 judgment .… 42.8–42.14 law areas .… 1.16 lex fori .… 1.3, 2.2 lex locus delicti .… 1.3 located .… 33.29 locus delicti .… 1.3 marriage .… 24.1–24.5 ordinarily resident .… 13.35

ordinary residence .… 13.38–13.39 place of sitting .… 6.37 residence .… 13.37–13.39 rights of custody .… 28.59 trust .… 34.5 unitary system of law .… 1.16 Workers’ compensation incidental question .… 15.30