Private international law in Australia [Fourth edition.] 9780409348279, 0409348279

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Private International Law in Australia Fourth Edition

Private International Law in Australia Fourth Edition

Reid Mortensen

BCom (Hons I), LLB (Hons I), PhD (Qld) Professor of Law and Head of School, School of Law and Justice, University of Southern Queensland Lawyer, Supreme Court of Queensland

Richard Garnett

BA, LLB (UNSW), LLM (Harv) Professor of Law, Melbourne Law School, University of Melbourne

Mary Keyes

BA, LLB (Hons) (Qld), GCert Higher Education, PhD (Griffith) Professor of Law Griffith Law School, Griffith University

LexisNexis Butterworths Australia 2019

LexisNexis AUSTRALIA LexisNexis Butterworths 475–495 Victoria Avenue, Chatswood NSW 2067 On the internet at: www.lexisnexis.com.au ARGENTINA LexisNexis Argentina, Buenos Aires AUSTRIA LexisNexis Verlag ARD Orac GmbH & Co KG, Vienna BRAZIL LexisNexis Latin America, Sao Paulo CANADA LexisNexis Canada, Markham, Ontario CHILE LexisNexis Chile, Santiago CHINA LexisNexis China, Beijing, Shanghai CZECH REPUBLIC Nakladatelství Orac sro, Prague FRANCE LexisNexis SA, Paris GERMANY LexisNexis Germany, Frankfurt HONG KONG LexisNexis Hong Kong, Hong Kong HUNGARY HVG-Orac, Budapest INDIA LexisNexis, New Delhi ITALY Dott A Giuffrè Editore SpA, Milan JAPAN LexisNexis Japan KK, Tokyo KOREA LexisNexis, Seoul MALAYSIA LexisNexis Malaysia Sdn Bhd, Petaling Jaya, Selangor NEW ZEALAND LexisNexis, Wellington POLAND Wydawnictwo Prawnicze LexisNexis, Warsaw SINGAPORE LexisNexis, Singapore SOUTH AFRICA LexisNexis Butterworths, Durban SWITZERLAND Staempfli Verlag AG, Berne TAIWAN LexisNexis, Taiwan UNITED KINGDOM LexisNexis UK, London, Edinburgh USA LexisNexis Group, New York, New York LexisNexis, Miamisburg, Ohio

A catalogue record for this book is available from the National Library of Australia. ISBN:

9780409348279 (pbk). 9780409348286 (ebk).

© 2019 Reed International Books Australia Pty Limited trading as LexisNexis. First edition, 2006 (reprinted 2009, 2010); second edition, 2011; third edition, 2015. 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 Minion Pro and Myriad Pro. Printed in Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Contents Detailed Contents Preface Table of Cases Table of Statutes

vii xvii xix lvii

PART 1

Introduction to Private International Law

1

Chapter 1

Scope, Development and Purpose

3

PART 2

Jurisdiction and Judgments

25

Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6

Personal Jurisdiction Jurisdiction: Exceptions and Immunities Restraints on Proceedings The Effect of Foreign and Interstate Judgments International Arbitration

27 75 91 133 171

Part 3

Choice of Law Method

Chapter 7 Chapter 8 Chapter 9 Chapter 10 Chapter 11 Chapter 12

Choice of Law Method 1: The General Part 191 Choice of Law Method 2: Complications and Exceptions 215 Proof of Foreign Law 249 Personal Connections 265 Constitutional Limits on Choice of Law 299 Statutes 315

Part 4

International Family Law

Chapter 13 Chapter 14 Chapter 15 Chapter 16

The Validity of Marriages and Other Adult Relationships Separation, Dissolution and Annulment of Marriage Parental Responsibility Property and Maintenance

Part 5

Choice of Law for Obligations

Chapter 17 Chapter 18 Chapter 19

Contracts 439 Torts 469 Equitable Claims and Trusts 491

189

v

331 333 367 387 423

437



Private International Law in Australia

PART 6

Choice of Law for Property

Chapter 20 Chapter 21 Chapter 22

The Location and Classification of Property Transfer of Property between Living and Corporate Persons Succession to Property on Death

PART 7

International Company Law

Chapter 23 Chapter 24

International Company Law Corporate Insolvency

Index

503 505 517 533

557 559 573 585

vi

Detailed Contents Preface Table of Cases Table of Statutes

xvii xix lvii

PART 1

Introduction to Private International Law

Chapter 1

Scope, Development and Purpose 3 Themes of private international law 3 Historical development 7 Ancient approaches 7 Scholarly development 8 Institutional writing as a source of law 12 Judicial development in England 13 An Australian private international law 15 Objectives 19 Consistency 20 Particular justice 22 International and interstate comity 23

PART 2

Jurisdiction and Judgments

Chapter 2

Personal Jurisdiction 27 Introduction 27 Personal jurisdiction at common law 28 Presence 28 Submission 32 Personal jurisdiction in interstate cases 34 Diversity jurisdiction 34 Service and Execution of Process Act 1992 (Cth) 37 Cross-vested jurisdiction 38 Personal jurisdiction in international cases 45 Jurisdiction over New Zealand defendants 45 Personal jurisdiction in international cases not involving New Zealand 45 Harmonised rules of court 50 Grounds of jurisdiction — personal connections 51 Grounds of jurisdiction — submission to the jurisdiction 51 Grounds of jurisdiction — contracts 52 Grounds of jurisdiction — wrongs 56

vii

1

25



Private International Law in Australia Grounds of jurisdiction — application of forum legislation 65 Grounds of jurisdiction — property 66 Grounds of jurisdiction — probate and administration 68 Grounds of jurisdiction — foreign judgments and awards 69 Grounds of jurisdiction — injunctions, interim and ancillary relief, freezing orders 69 Method of service 70 Conclusion 73

Chapter 3

Jurisdiction: Exceptions and Immunities 75 Introduction 75 Foreign immovables 75 The Moçambique principle 75 Australian Capital Territory 78 New South Wales 78 Personal actions relating to immovables 79 Reform 80 Foreign state immunity 80 Foreign states 81 Exceptions to immunity 82 Immunity from execution 86 Diplomatic and consular immunity 87 Diplomatic immunity 87 Consular immunity 88 Duration and waiver 88

Chapter 4

Restraints on Proceedings 91 Introduction 91 International proceedings 91 Mandatory rules 92 Jurisdiction agreements 94 Forum non conveniens 101 Procedure 108 Interstate proceedings 112 Interstate proceedings in superior courts 112 Forum non conveniens 122 Interstate proceedings in intermediate and inferior courts 122 Restraining proceedings in another court 124 Restraining proceedings in a foreign court 124 Restraining proceedings in another Australian or a New Zealand court 130 Reform 130 Conclusion 131

viii





Detailed Contents

Chapter 5

The Effect of Foreign and Interstate Judgments 133 Introduction 133 Recognition and enforcement of judgments at common law 136 International jurisdiction 137 Final and conclusive 143 Fixed sum 143 Identical parties 145 Fraud 145 Natural justice 148 Public policy 149 Penal and revenue judgments 150 Incompatible judgments 150 Foreign competition judgments 151 Estoppel and foreign judgments 151 Registration of foreign judgments 153 Registration — conditions and effect 156 Setting aside registration 158 International jurisdiction 159 Identical parties 163 Fraud 163 Natural justice 163 Public policy 164 Incompatible judgments 164 Registration of interstate judgments 165 Full faith and credit 165 Registration procedures 167 Registration of New Zealand judgments 168

Chapter 6

International Arbitration 171 Introduction 171 Enforcement of international arbitration agreements 171 Writing requirement 172 A matter capable of settlement by arbitration 172 Applicable law in international arbitration 178 Law governing the substance 178 Law governing the arbitration agreement 179 Law governing the arbitral procedure 180 Enforcement of arbitral awards 182 Foreign arbitral awards 182 Enforcement of awards under the Model Law 187 Investor–state arbitration 188

ix



Private International Law in Australia

Part 3

Choice of Law Method

189

Chapter 7

Choice of Law Method 1: The General Part 191 Introduction 191 Choice of law and internal rules 192 The identification of a conflict of laws 192 Identifying the possibly relevant legal systems 193 The internal rules of the possibly relevant systems 193 A conflict of laws 193 The classification of the subject matter 194 The subject matter 194 Classifications 196 The law of classification 198 The classification of substantive or procedural law 200 General principles of procedural law 200 Particular issues 203 The identification of the choice of law rule 213 The application of the law of the cause 213 Which aspects of the law of the cause? 213

Chapter 8

Choice of Law Method 2: Complications and Exceptions 215 Introduction 215 Complications of choice of law method 215 Dépeçage 215 The incidental question 216 Renvoi 219 Exclusion of unacceptable laws 231 Unrecognised states 231 Penal laws 232 Revenue laws 234 Expropriation laws 235 Foreign governmental interests 238 Public policy 240

Chapter 9

Proof of Foreign Law The status of foreign law The presumption of identity Presumption of identity — interpretation of foreign statutes Foreign law as fact and precedent Evidence of foreign law Expert witnesses Judicial notice Reference of a question of foreign law Documentary sources of law Determination of foreign law Proof of interstate law x

249 249 251 253 255 256 256 257 258 261 262 263





Detailed Contents

Chapter 10

Personal Connections 265 Introduction 265 Domicile 266 Domicile of origin 269 Domicile of dependence 272 Domicile of choice 274 Nationality 278 Australian citizenship 279 Foreign nationality 285 Multiple nationalities 288 Residence 288 Residence 289 Ordinary residence 289 Habitual residence 291 Reform 295

Chapter 11

Constitutional Limits on Choice of Law 299 Introduction 299 Full faith and credit 300 Full faith and credit: No public policy exclusion of interstate law 300 Full faith and credit: Effect on the content of the choice of law rule 302 Interstate discrimination 310 The Australian Constitution in choice of law: Status and future 313

Chapter 12

Statutes 315 Introduction 315 Forum statutes 316 Extraterritorial reach of statutes 316 Statutory choice of law rules 316 Self-limiting provisions 317 Generally-worded statutes 318 Statutes of other places 324 Foreign statutes 324 Interstate statutes 325 Interstate statutes under the cross-vesting scheme 326 Operation of s 11(1)(b) 326

Part 4

International Family Law

Chapter 13

The Validity of Marriages and Other Adult Relationships 333 Introduction 333 The legal concept of marriage 335 Voluntary union 336 xi

331



Private International Law in Australia Indefinite duration The sex or gender of the parties Other recognised adult relationships Monogamous union The common law choice of law rules The formal validity of marriage The essential validity of marriage Other issues Marriage: The present choice of law rules Marriages solemnised in Australia before 7 April 1986 Marriages solemnised in Australia from 7 April 1986 Marriages solemnised outside Australia The recognition of other interstate and foreign adult relationships

337 337 339 340 343 344 349 353 355 357 358 359 364

Chapter 14

Separation, Dissolution and Annulment of Marriage 367 Introduction 367 Jurisdiction 368 Dissolution of marriage 368 Annulment of marriage 368 Choice of law 372 Dissolution 372 Annulment 373 Void, revoked and terminated adult relationships 373 Recognition of decrees 373 Australian decrees 373 New Zealand decrees 373 Sources of rules for recognising foreign decrees 374 Unrecognised foreign decrees 382 Natural justice 383 Public policy 384 Failure to comply with the foreign law 385

Chapter 15

Parental Responsibility 387 Introduction 387 Jurisdiction 389 Jurisdictional competence 389 Exercise of jurisdiction 397 The application of the Child Abduction Convention 400 Habitual residence 400 Child Abduction Convention countries 401 General approach 401 Central authorities 402 Wrongful removal or retention 403 Return 406 xii



Detailed Contents



Settlement into new environment 406 Excusable removal or retention 407 Access 414 Choice of law 415 Part VII of the Family Law Act 415 Child Protection Convention 415 The recognition of foreign parenting orders 418 The general law 418 The registration of foreign parenting orders 420 Chapter 16

Property and Maintenance 423 Introduction 423 Jurisdiction 424 Jurisdiction as of right 424 Parties 424 Limits on jurisdiction 425 Discretionary stay of proceedings 426 Anti-suit injunctions 427 Stay of trans-Tasman proceedings 428 Courts 430 Choice of law 430 Recognition and enforcement of foreign property and maintenance orders 431 Property orders 431 Maintenance 432 Overseas maintenance orders registered before 1 July 2000 433 Overseas maintenance orders registered from 1 July 2000 433 New York Maintenance Convention 434

Part 5

Choice of Law for Obligations

Chapter 17

Contracts 439 The scope of the proper law 439 Classification 440 Time of attribution 441 The determination of the proper law 443 Subjective proper law 443 Objective proper law 448 Change of proper law 451 Multiple proper laws 453 Dépeçage 453 Incorporation 454 Formation and performance 455 Formation 455 Performance 457 xiii

437



Private International Law in Australia Related claims 461 Specific contracts 461 International sea carriage of goods contracts 461 International sale of goods contracts 462 Insurance contracts 462 Consumer contracts 463 Consumer credit contracts 464 Contracting out 465 Reform 465

Chapter 18

Torts 469 Introduction 469 The general tort choice of law rule 469 Renvoi 471 The place of the tort 473 The general rule 473 Negligence 474 Misrepresentation 475 Defamation 476 Maritime torts 476 Choice of law for defamation 477 Defamation within Australia 477 Foreign defamations 479 Circumstances in which the governing law may not be applied 479 Procedural rules 479 Public policy 480 Claims and defences under forum legislation 481 Classification of specific issues 482 Survival of actions 482 Wrongful death 483 Nominal defendants 483 Direct actions against insurers 484 Interspousal immunity 484 Indemnity 485 Contribution 486 Insurers’ rights of subrogation 487 Conversion 487 Concurrence of liability 488 Contractual and statutory defences to claims in tort 489

Chapter 19

Equitable Claims and Trusts 491 Introduction 491 Jurisdiction 491 Jurisdiction in equity 491 xiv





Detailed Contents Choice of Law — Equitable Claims Equitable defences Equitable remedies Choice of Law — Trusts Hague Trusts Convention Trusts outside the scope of the Hague Trusts Convention

492 496 496 497 498 500

PART 6

Choice of Law for Property

Chapter 20

The Location and Classification of Property 505 The method of classifying property 505 Immovables and movables 505 The location of property 507 Tangible property 507 Debts 508 Other intangible property 510 The classification of property 512 Tangible property 513 Debts 514 Other intangible property 514

Chapter 21

Transfer of Property between Living and Corporate Persons 517 Introduction 517 Transfer of immovable property 518 Formal validity 518 Essential validity 518 Capacity 519 The contract requiring the transfer 519 Transfer of movable property 520 Tangible property 520 Debts 524 Other intangible movable property 530

Chapter 22

Succession to Property on Death 533 Introduction 533 Executors and administrators 534 Jurisdiction 534 The appointment of a personal representative 535 Scission 535 Re-sealing of foreign and Commonwealth grants 537 Refusal to confirm grants 537 Representative’s accountability 538 Administration 538 Principal administration 539 Ancillary administration 540 Beneficial succession 540 xv

503



Private International Law in Australia Immovable property 541 Movable property 547 The exercise of powers of appointment 552 General and special powers 552 Formal validity 552 Capacity 553 Essential validity 553 Interpretation 554 Revocation 554 Reform 555

PART 7

International Company Law

Chapter 23

International Company Law 559 Introduction 559 Jurisdiction 560 The power to exercise jurisdiction 560 Courts 561 Restraints on companies’ proceedings within Australia 562 Restraints on trans-Tasman companies’ proceedings 563 Restraints on companies’ proceedings in international cases 563 Choice of law 565 The validity of incorporation 567 Capacity and powers 567 Members’ rights and liabilities 568 Internal management 568 Recognition and enforcement of foreign companies’ orders 570

Chapter 24

Corporate Insolvency 573 Introduction 573 The Model Law 573 Overview 573 Access of foreign representatives and creditors to Australian courts 574 Recognition of foreign insolvency proceedings and relief 575 Concurrent insolvency proceedings and judicial cooperation 579 Winding up of companies 582

Index

557

585

xvi





Preface to the Fourth Edition Since the last edition was published, Australian private international law has continued to consolidate its somewhat unique approach within the common law system. Private international law continues to grow in practical importance in Australia; this is demonstrated most clearly in the increase in the number of cases coming before the courts in all of the areas which are covered in this book. With notable exceptions, Australian legislators have given limited attention to this field. Much of the focus in terms of legal development remains on jurisdiction, while the recognition and enforcement of foreign judgments has become increasingly significant. While the number of cases in the family jurisdiction has grown substantially, there have been only a small number of changes in the principles applied in that context. The amendments to the Marriage Act in 2017 to allow same-sex marriage to be celebrated in Australia, and to remove the prohibition on recognition of foreign-celebrated same-sex marriages, are particularly noteworthy, but the recognition of same sex marriages already celebrated overseas may not have been given the careful attention it needed. In relation to jurisdiction, the most important change that has occurred is the recent adoption in four states and the Australian Capital Territory of the so-called harmonised rules on service of process outside Australia,1 developed under the auspices of the Council of Chief Justices. In most common law systems, service of process establishes the competence of the courts to deal with international disputes. While, in principle, harmonisation between the rules of court in the states and territories, and for that matter the Federal Court, is desirable, there are serious shortcomings in the harmonised rules. Most problematically, in the form of the rules adopted in New South Wales, South Australia, Tasmania and Victoria, the requisite connections to various aspects of the claims are to ‘Australia’ rather than to the relevant state.2 Not only do we believe that insufficient attention has been paid to the legal basis of the harmonised rules, in allowing a state court to exercise jurisdiction over overseas defendants in cases that have no connection with the relevant state, it seems that the harmonised rules create some of the world’s most exorbitant international jurisdictions. Still on the topic of jurisdiction, in 2016, the Federal Parliament’s Joint Standing Committee on Treaties (JSCOT) recommended that Australia take binding treaty action to bring the Hague Convention on Choice of Court Agreements 2005 into effect in Australia, in the form of an International Civil Law Act. At the date of writing, in November 2018, this had still not come to fruition; when (and if) it does, this will give stronger protection to exclusive jurisdiction clauses in commercial contracts, equivalent to that given to arbitration clauses. JSCOT also recommended that the International Civil Law Act should implement the Hague Principles on Choice of Law in International Commercial Contracts; this recommendation is not currently being pursued by the federal government. In the area of recognition and enforcement of foreign judgments, the High Court has been active since the last edition with two decisions that confirm the generally liberal 1. 2.

See Chapter 2. The version of the harmonised rules adopted in the Australian Capital Territory refers to connections to the Territory rather than to Australia: Court Procedures Rules 2006 (ACT) r 6502.

xvii



Private International Law in Australia

approach towards enforcement in Australian law. In PT Bayan Resources TBK v  BCBC Singapore Pte Ltd 3 the court held that a mareva order may be issued by an Australian court in aid of enforcement of a foreign judgment, while in Firebird Global Master Fund II Ltd v Republic of Nauru,4 a foreign state judgment debtor was declared not to be immune from the jurisdiction of an Australian court in a proceeding to enforce the judgment where the transaction upon which the judgment was based was commercial. This edition remains the same in structure as the previous editions, although a new chapter on Equitable Claims and Trusts has been added to the section on Choice of Law for Obligations. Looking to the future, the consequences for private international law of the United Kingdom’s exit from the European Union (‘Brexit’) remain unclear, but are potentially significant for Australia. During the UK’s membership of the European Union, there has been an increasing divergence between Australian private international law, and the laws applicable in the UK, many of which derive from EU legal instruments. It is possible that Brexit will have the indirect effect of reviving UK legal developments as an important source for Australian private international law. The law is stated as of 30 June 2018. We thank Jocelyn Holmes, Geraldine MacLurcan and Catherine Britton for their editorial and production work on this edition. Reid Mortensen Toowoomba, Queensland

Richard Garnett Melbourne, Victoria

Mary Keyes Brisbane, Queensland November 2018

3. 4.

(2015) 258 CLR 1. (2015) 258 CLR 31.

xviii

Table of Cases References are to paragraphs — v National Bank of Greece and Athens [1961] AC 255 …. 7.19, 8.64 Adamson’s Executors v McTaggart (1893) 20 R 738 …. 23.13 Adcock v Aarons (1903) 5 WALR 140 …. 2.50 Addison v Addison [1955] NI 1 …. 13.39 — v Brown [1954] 1 WLR 779 …. 8.58 Administration of Norfolk Island v SMEC Australia Pty Ltd [2004] NFSC 1 …. 6.2 Adsteam Building Industries Pty Ltd v The Queensland Cement and Lime Co Ltd (No 4) [1985] 1 Qd R 127 …. 9.10 AED Oil Ltd v Puffin FPSO Ltd (2010) 27 VR 22; [2010] VSCA 37 …. 6.5 — v — (No 2) [2009] VSC 534 …. 6.5, 6.9 Aerospatiale Holdings Australia Pty Ltd v Elspan International Ltd (1992) 28 NSWLR 321 …. 6.24 Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 …. 2.43, 2.44, 2.45 Agarwal v Bagga [2016] NSWCS 1402 …. 16.12 Agnew v Usher (1884) 14 QBD 78 …. 2.83 Agrokar DD, Re [2017] EWHC 2791 (Ch) …. 24.12 Ah Yin v Christie (1907) 4 CLR 1428 …. 10.29 Ahmed v Habib Bank [2001] EWCA Civ 1270 …. 5.26 AIG UK Ltd v QBE Insurance (Europe) Ltd [2008] QSC 308 …. 17.24 Ainslie v Ainslie (1927) 39 CLR 381 …. 14.50 Airbus Industrie GIE v Patel [1999] 1 AC 119 …. 4.89 Aircraft Support Industries Pty Ltd v William Hare UAE LLC [2015] NSWCA 229 …. 6.32, 6.33 AJ Smeman Car Sales v Richardson Pre-Run Cars (1969) 63 QJPR 150 …. 21.14

A

A (a minor), Re [1988] 1 FLR 365 …. 15.33, 15.53 A (Minor) (Abduction) (No 2), Re [1993] 1 All ER 272 …. 15.56 A (Minors) (Abduction: Acquiescence), Re [1992] Fam 106 …. 15.47, 15.56 A v B [1979] 1 NSWLR 57 …. 15.18 — v S (Financial Relief after Overseas US Divorce) [2002] EWHC 1157 …. 16.14 AAP Industries Pty Ltd v Rehau Pte Ltd [2015] NSWSC 468 …. 4.15 Abate, as Liquidator of Onix Capital SA, Re [2017] FCA 751 …. 24.11 Abigroup Contractors Pty Ltd v Transfield Pty Ltd (1998) 217 ALR 435; [1998] VSC 103 …. 6.12 Abouloff v Oppenheimer (1882) 10 QBD 295 …. 5.28 Abrook v Paterson (1995) 58 FCR 293 …. 4.59 ACD Tridon Inc v Tridon Australia Pty Ltd [2002] NSWSC 896 …. 6.2, 6.5, 6.14 Ace Insurance Ltd v Moose Enterprise Pty Ltd [2009] NSWSC 175 …. 4.31 — v — [2009] NSWSC 724 …. 4.15, 4.16, 4.28, 4.87 Achillopoulos, Re [1928] Ch 433 …. 22.10 ACN 006 397 413 Pty Ltd v International Movie Group (Canada) Inc [1997] 2 VR 31 …. 6.33 Acquaah-Akuffo & Abioye [2016] FamCAFC 194 …. 15.27 Activate No 1 Pty Ltd v Equuscorp Pty Ltd [1999] FCA 619 …. 4.69 Adams, Re [1967] IR 424 …. 22.42 Adams v Adams [1971] P 188 …. 1.4, 8.37, 8.38 — v Cape Industries plc [1990] Ch 433 …. 5.13, 5.15, 5.32 — v Clutterbuck (1883) 10 QBD 403 …. 21.4 xix



Private International Law in Australia

AK Investment CJSC v Kyrgyz Mobile Tel Ltd [2012] 1 WLR 1804 …. 5.33 Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 …. 4.10, 4.15, 4.17, 4.19, 4.20, 4.28, 4.29, 4.20, 6.19, 9.9, 12.4, 12.8, 12.23, 17.6, 17.7, 17.11, 17.12, 17.14, 17.15, 17.16, 17.48, 17.53 — v — [1998] 1 Lloyd’s Rep 90 …. 4.20, 4.28 Akbarali v Brent London Borough Council [1983] 2 AC 309 …. 10.59, 10.60 Akers v Deputy Commissioner of Taxation (2014) 311 ALR 167; [2014] FCAFC 57 …. 24.1, 24.3, 24.4, 24.6, 24.15, 24.16 — v Saad Investments Co Ltd (in official liquidation) (2010) 190 FCR 285; [2010] FCA 1221 …. 24.8 — v — [2013] FCA 738 …. 24.15 — v Samba Financial Group [2017] AC 424 …. 19.21, 19.25 Aksionairnoye Obschestvo AM Luther v James Sagor & Co [1921] 1 KB 456 …. 8.37 — v — [1921] 3 KB 532 …. 8.51 Al-Attiya v Bin-Jassim Bin-Jaber Al Thani [2016] EWHC 212 …. 3.26 Aldrich v Attorney-General [1968] P 281 …. 22.5 Alexander v Alexander (1969) 113 Sol Jnl 344 …. 14.32 Alfarsi & Elhage [2016] FamCA 428 …. 15.8 Ali v Ali [1968] P 564 …. 13.15, 13.16 Allen v Depuy International Ltd [2015] EWHC 926 …. 7.40 Allen & Cortez [2016] FamCA 320 …. 16.4, 16.7, 16.8 Allergan Pharmaceuticals Inc v Bausch & Lomb Inc [1985] ATPR 40-636 …. 6.9 Allstate Insurance Co v Hague 449 US 302 (1981) …. 1.31 Alseran v Ministry of Defence [2017] EWHC 3289 …. 7.41 Alstom Ltd v Sirakis (No 2) [2012] NSWSC 64 …. 9.23 Aluminal Industries Inc v Newtown Commercial Associates 89 FRD 326 (1980) …. 2.9 Aluminium Industrie Vaassen BC v Romalpa Aluminium Ltd [1976] 1WLR 676 …. 9.2

Alvear v Chetwynd Park Pty Ltd [2014] VSC 214 …. 7.24, 7.31 ALYK (HK) Ltd v Caprock Commodities Trading Pty Ltd and China Construction Bank Corp [2015] NSWSC 1006 …. 6.38 AM McKenzie, dec’d, Re (1951) 51 SR (NSW) 293 …. 1.18, 10.10 Amaca Pty Ltd v Frost (2006) 67 NSWLR 635; [2006] NSWCA 173 …. 2.68, 7.40 Amchem Products Inc v British Columbia (Workers’ Compensation Board) [1993] 1  SCR 897 …. 4.38, 4.86, 4.89 — v Workers’ Compensation Board (1989) 42 BCLR (2d) 77 …. 4.89 Americhip Inc v Dean [2015] 3 NZLR 498 …. 5.41 Amin Rasheed Shipping Corp v Kuwait Insurance Co [1984] AC 50 …. 17.1, 17.5, 17.14, 17.15, 17.17 Amor v Macpak Pty Ltd (1989) 95 FLR 10 …. 4.73 An Infant, Re [1981] Qd R 225 …. 10.56 Anderson and McIntosh [2013] FamCAFC 200 …. 14.21 Anderton v Enterprising Global Group Pty Ltd [2003] WASC 67 …. 4.69 Andressen v Bendigo and Adelaide Bank Ltd [2016] SASC 111 …. 2.8 — v — (No 2) [2017] SASC 25 …. 2.8 Anglo-Czechoslovak Credit Bank v Janssen [1943] VLR 185 …. 8.38 Anglo-Iranian Oil Co Ltd v Jaffrate (The Rose Mary) [1953] 1 WLR 246 …. 1.4, 8.65, 8.66 Annesley, Re; Davidson v Annesley [1926] Ch 692 …. 8.28, 8.29, 8.30, 8.32, 8.33, 9.2 Anning v Anning (1907) 4 CLR 1049 …. 21.4 Anziani, Re; Herbert v Christopherson [1930] 1 Ch 407 …. 21.26 Application for Adoption of M, Re (1992) 112 ACTR 39 …. 10.56 Application of Perpetual Trustee Company Ltd: Re Estate of Dempsey [2016] NSWSC 159 …. 10.8, 10.9, 10.16, 10.23, 10.25, 10.27 Apt v Apt [1947] P 127 …. 7.18 — v — [1948] P 83 …. 7.18 — v — [1948] P 204 …. 13.23 xx



Table of Cases

Armacel Pty Ltd v Smurfit Stone Container Corp (2008) 248 ALR 573; [2008] FCA 592 …. 4.16, 5.41 Armar Shipping Co v Caisse Algerienne d’Assurance et de Reassurance, (The Armar) [1981] 1 All ER 498 …. 17.21, 17.22 Armitage v Attorney-General [1906] P 135 …. 14.41 Arthur v Secretary, Dept of Family & Community Services [2017] FamCAFC 111 …. 15.44 AS Latvijas Krajbanka v Antonov [2016] EWHC 1679 …. 23.22 Askew, Re [1930] 2 Ch 259 …. 8.20 AssetInsure Pty Ltd v New Cap Reinsurance Corp Ltd (in liq) (2004) 61 NSWLR 451; [2004] NSWCA 225 …. 20.10 — v — (2006) 225 CLR 331; [2006] HCA 13 …. 20.10 Astro Exito Navegacion SA v Southland Enterprise Co Ltd (No 2) (The Messiniaki Tolmi) [1982] QB 1248 …. 2.16 Astro Venturoso Compania Naviera v Hellenic Shipyards SA (The Marianna) [1983] 1 Lloyd’s Rep 12 …. 17.23 Atlantic Underwriting Agencies Ltd v Compagnia di Assicurazione di Milano SpA [1979] 2 Lloyd’s Rep 240 …. 17.18 Attorney-General v Bouwens (1838) 4 M & W 171; 150 ER 1390 …. 20.7, 20.10, 20.13 — v Higgins (1857) 2 H & N 339; 157 ER 339 …. 20.16 — v Kevin (2003) 30 Fam LR 1; [2003] FamCA 94 …. 13.11, 13.12 — v Lord Sudeley [1896] 1 QB 354 …. 20.19 Attorney-General for England and Wales v R [2002] 2 NZLR 91 …. 9.2, 9.9, 17.33 Attorney-General for the United Kingdom v Wellington Newspapers Ltd [1988] 1 NZLR 129 …. 8.53 Attorney-General of Botswana v Aussie Diamond Products Pty Ltd (No 3) [2010] WASC 141 …. 17.15, 17.16 Attorney-General of New Zealand v Ortiz [1982] QB 349 …. 1.6 — v — [1984] AC 1 …. 8.51, 8.52, 8.53, 8.54

Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (the Spycatcher case) (1987) 10 NSWLR 86 …. 1.6, 8.53, 8.54, 8.61, 8.62 — v — (1988) 165 CLR 30 …. 8.53, 8.54, 8.58, 8.61, 8.62, 19.6, 19.7 August, The [1891] P 328 …. 17.34 Augustus v Permanent Trustee Co (Canberra) Ltd (1971) 124 CLR 245 …. 12.27, 17.13, 19.28, 23.22 Austin & Hong [2015] FamCA 1119 …. 13.52 Australasian Temperance and General Mutual Life Assurance Society v Howe (1922) 31 CLR 290 …. 2.19 Australian Broadcasting Corp v Waterhouse (1991) 25 NSWLR 519 …. 2.69, 12.31, 12.32, 18.20 Australian Commercial Research and Development Ltd v ANZ McCaughan Merchant Bank [1989] 3 All ER 65 …. 4.54 Australian Competition and Consumer Commission v Chen (2003) 132 FCR 309; [2003] FCA 897 …. 17.50, 19.16 — v Valve Corp (No 3) (2016) 337 ALR 647; [2016] FCA 196 …. 2.52, 17.17, 17.19, 17.50, 17.51 Australian Federation of Islamic Councils Inc v Westpac Banking Corp (1988) 17 NSWLR 623 …. 3.21, 3.28 Australian Gourmet Pastes Pty Ltd v IAG New Zealand Ltd [2017] VSCA 155 …. 4.9, 4.56 Australian Insurance Brokers Ltd v Hudig Langeveldt Pty Ltd (No 2) (1991) 7 WAR 343 …. 2.41 Australian International Islamic College Board Inc v Kingdom of Saudi Arabia (2013) 298 ALR 655; [2013] QCA 129 …. 3.21 Australian Mutual Provident Society v GEC Diesels Australia Ltd [1989] VR 407 …. 2.78 — v Gregory (1908) 5 CLR 615 …. 20.33, 21.34 Australian Public Trustees Ltd (in its capacity as trustee and/or responsible entity of the Government Property Trust No 5) v Australian Public Trustees Ltd (in its capacity as trustee of the Government Property Trust No 3) (2012) 81 ACSR 236; [2012] VSC 364 …. 20.16 xxi





Private International Law in Australia

Australian Securities and Investments Commission v Cycclone Magnetic Engines Inc (2009) 71 ACSR 1; [2009] QSC 058 …. 23.20 — v Edwards (2004) 22 ACLC 1469; [2004] QSC 344 …. 24.28 Ayres v Evans (1981) 39 ALR 129; 56 FLR 235 …. 8.45, 24.23 AZ (a Minor) (Abduction: Acquiescence), Re [1993] 1 FLR 682 …. 15.47 Azoff-Don Commercial Bank, Re [1954] Ch 315 …. 24.30

Bank of Credit and Commerce International SA (No 10), Re [1997] Ch 213 …. 24.31 Bank of Tokyo v Karoon [1987] AC 45 …. 4.87 Bank Polska Kasa Opieki Spolka Akcyjna v Zbigniew Opara (2010) 238 FLR 309; [2010] QSC 093 …. 5.46, 5.55, 5.66, 5.67 Bank voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248 …. 8.49 Bankers Trust International Ltd v Todd Shipyard Corporation (The Halcyon Isle) [1981] AC 221 …. 7.50 Bankinvest AG v Seabrook (1988) 14 NSWLR 711 …. 4.59, 4.61, 4.62, 4.64, 4.65, 4.67, 4.68, 4.69, 4.71, 4.73, 23.8 Bannon v Nauru Phosphate Royalties Trust (No 1) [2016] VSC 425 …. 3.19 Bant and Clayton [2015] FamCAFC 222 …. 9.23, 9.24 Barcelo v Electrolytic Zinc Co of Australasia Ltd (1932) 48 CLR 391 …. 12.11, 12.12, 12.24 Barclays Bank Ltd v Piacun [1984] 2 Qd R 476 …. 5.22, 5.46, 5.65 Barker, Re [1995] 2 VR 439 …. 22.31, 22.42, 22.45 Baroda, Maharanee v Wildenstein [1972] 2 QB 283 …. 2.9 Barraclough, Marriage of (1987) 11 Fam LR 773 …. 15.46 Barrie’s Estate, Re 35 NW 2d 658 (1949) …. 22.32 Barriga, In the Marriage of (No 2) (1981) 7 Fam LR 909 …. 13.4, 13.32, 14.32, 14.37, 14.38 Barrios and Sanchez, Marriage of (1989) 13 Fam LR 477 …. 15.71 Barros Mattos Junior v Macdaniels Ltd [2005] EWHC 1323 …. 18.7 Baschet v London Illustrated Standard Co [1900] 1 Ch 73 …. 7.38 Base Metal Trading Ltd v Shamurin [2005] 1 WLR 1157 …. 18.43, 23.22 Basra and Ahmed [2016] FamCA 838 …. 14.21, 14.45, 14.48 Bassi, Marriage of (1994) 17 Fam LR 571 …. 15.54 Bata v Bata [1948] WN 366 …. 2.69 Bateman v Fairfax Media Publications Pty Ltd [2013] ACTSC 72 …. 18.20 — v Service (1881) 6 App Cas 386 …. 23.19

B

B (A Minor) (Abduction), Re [1994] 2 FLR 249 …. 15.40 B (Minors) (Abduction) (No 2), Re (1993) 1 FLR 993 …. 15.31, 15.39 B v B (Minors: Enforcement of Access Abroad) [1988] 1 All ER 652 …. 15.57, 15.59 Baba & Jarvinen (1980) FLC 90-882 …. 16.8 Babcock v Jackson 191 NE 2d 279 (1963) …. 18.3 Bailey, Re [1985] 2 NZLR 656 …. 22.24, 22.34 Bain v Whitehaven Railway Co (1850) 3 HLC 1 …. 7.31 Baindail v Baindail [1946] P 122 …. 13.19, 13.20 Bak & Bak (1980) FLC 90-877 …. 16.8 Baker v Bolton (1808) 1 Camp 493; 170 ER 1033 …. 18.34 Bakri Navigation Co Ltd v ‘Golden Glory’ Glorious Shipping SA (1991) 217 ALR 152 …. 6.14 Baldry v Jackson [1976] 1 NSWLR 19 …. 2.10 — v — [1977] 1 NSWLR 494 …. 18.40 Ballard v Attorney-General (Vic) (2010) 30 VR 413; [2010] VSC 525 …. 19.4, 19.28 Bamgbose v Daniel [1955] AC 107 …. 13.19 Banco de Bilbao v Sancha and Rey [1938] 2 KB 176 …. 23.22 Banco de Vizcaya v Don Alfonso de Borbon y Austria [1935] 1 KB 140 …. 8.41, 8.51 Bank of Africa v Cohen [1909] 2 Ch 129 …. 21.6 xxii



Table of Cases

Bateman and Idameneo (No 123) Pty Ltd v Fairfax Media Publications Pty Ltd [2013] ACTSC 72 …. 9.29 Bater v Bater [1906] P 209 …. 14.50 Bath v British and Malayan Trustees Ltd [1969] 2 NSWR 114; (1969) 90 WN (Pt 1) (NSW) 44 …. 8.46, 22.12 Baxter v RMC Group plc [2003] 1 NZLR 304 …. 2.77 BCBC Singapore Pte Ltd v PT Bayan Resources TBK [2012] WASC 170 …. 2.93, 2.94 Beals v Saldanha [2003] 3 SCR 416 …. 5.21 Beamish v Beamish (1861) 9 HL Cas 274; 11 ER 735 …. 13.26 Beaumont, Re [1893] 3 Ch 490 …. 10.18 Beaver v Master in Equity of the Supreme Court of Victoria [1895] AC 251 …. 20.17 Bedake, In the Estate of [2015] ACTSC 267 …. 10.6, 10.7, 10.22 Belhaj v Straw [2017] AC 964 …. 8.51, 8.69 Bell v Kennedy (1868) LR 1 Sc & Div 307 …. 10.24, 10.27 Bell Group NV (in liq) v Insurance Commission of Western Australia [2017] WASCA 229 …. 4.92 Bellinger v Bellinger (2002) 1 All ER 311 …. 13.11 — v — [2003] 2 AC 467; [2003] 2 WLR 1174 …. 13.6, 13.12 Belyando Shire Council v Rivers [1908] QWN 17 …. 2.50 Bempde v Johnstone (1796) 3 Ves Jun 198; 30 ER 967 …. 10.7, 10.17 Benaim & Co v Debano [1924] AC 514 …. 17.42 Benefit Strategies Group Inc v Prider (2005) 91 SASR 544; [2005] SASC 194 …. 5.29, 8.42, 8.43 Benko, dec’d, Re [1968] SASR 243 …. 10.8, 10.9 Benson v Rational Entertainment Enterprises Ltd [2015] NSWSC 906 …. 2.50, 2.58, 4.14, 4.25 Berchtold, Re [1923] 1 Ch 192 …. 20.18, 20.33 Berezovsky v Abramovich [2010] EWHC 647 …. 19.20, 19.21 — v Michaels [2000] 2 All ER 986 …. 2.74



Berry v Shead (1886) 7 NSWLR 39 …. 10.56 Berthiaume v Dastous [1930] AC 79 …. 13.24 Bethell, Re; Bethell v Hildyard (1888) 38 Ch D 220 …. 13.16 Betts and Hampson [2017] FamCA 107 …. 14.24, 14.45 BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 …. 2.31, 4.59, 4.61, 4.62, 4.69, 4.70, 4.71, 4.72, 4.73, 4.76, 4.79, 7.29, 7.42, 7.44, 7.52 BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725 …. 2.83 — v — [1985] VR 756 …. 17.11 BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169; [2008] FCA 551 …. 6.9, 6.14, 6.20 Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1981] 2 Lloyd’s Rep 446 …. 2.41 Blad v Bamfield (1673) 3 Swans 603; 36 ER 992 …. 1.22 Blair and Jenkins, Marriage of (1988) 12 Fam LR 85 …. 15.73 Bligh & James [2018] FamCA 187 …. 16.10 Blohn v Desser [1962] 2 QB 116 …. 5.15, 5.25 Blonde and Other Ships, The [1921] P 155 …. 20.27 Blue Sky One Ltd v Mahan Air [2010] EWHC 631 …. 8.20, 21.17 Blunden v Commonwealth (2003) 218 CLR 330; [2003] HCA 73 …. 11.17, 18.16 Blyth, Re [1997] 2 Qd R 567 …. 22.42, 22.49 Bodley Head Ltd v Flegon [1972] 1 WLR 680 …. 17.29 Bogart Lingerie Ltd v Steadmark Pty Ltd [2013] VSC 212 …. 4.54 Boissevain v Weil [1950] AC 327 …. 17.38 Bonacina, Re [1912] 2 Ch 394 …. 17.32 Bonython v Commonwealth [1951] AC 201 …. 17.15, 17.37 Booth v Phillips [2004] EWHC 1437 …. 18.16 Borg Warner (Aust) Ltd v Zupan [1982] VR 437 …. 7.17, 12.29 Bourke v State Bank of New South Wales (1988) 85 ALR 61 …. 4.61 Bowling v Cox [1926] AC 751 …. 2.50 Boyle v Sacker (1888) 39 Ch D 249 …. 2.16 Boys v Chaplin [1971] AC 356 …. 7.39, 18.3 xxiii



Private International Law in Australia

BP Australia Ltd v Wales [1982] Qd R 386 …. 2.58 BP plc v National Union Fire Insurance Co [2004] EWHC 1132 …. 17.24 Brabo, The [1949] AC 326 …. 2.41 Bradley v Commonwealth (1973) 128 CLR 557 …. 1.5 Brailey v Rhodesia Consolidated Ltd [1910] 2 Ch 95 …. 9.10 Brassard v Smith [1925] AC 371 …. 20.16 Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1 …. 17.50 — v — (2003) 130 FCR 317; [2003] FCAFC 153 …. 2.40 Brear v James Hardie & Coy Pty Ltd (2000) 50 NSWLR 388; [2000] NSWCA 352 …. 7.48 Breavington v Godleman (1988) 169 CLR 41 …. 1.6, 1.25, 1.29, 7.39, 11.5, 11.8, 11.9, 11.10, 11.11, 11.14, 11.16 Breen & Breen [2014] FamCA 1030 …. 15.16 Bremer v Freeman (1857) 10 Moo PC 306; 14 ER 508 …. 22.36 Bristol-Myers Squibb Co v Superior Court of California, San Francisco County 582 US (2017) …. 2.9 Bristow v Sequeville (1850) 5 Exch 275; 155 ER 118 …. 9.10 British South Africa Co v Companhia de Moçambique [1893] AC 602 …. 2.35, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 16.6, 16.16 — v De Beers Consolidated Mines Ltd [1910] 2 Ch 502 …. 3.9 Brodin v A/R Seljan 1973 SLT 198 …. 18.47 Brook v Brook (1861) 9 HL Cas 193; 11 ER 703 …. 13.22, 13.32 Brooke v Director General, Dept of Community Services (NSW) (2002) 29 Fam LR 121; [2002] FamCA 258 …. 15.40 Brown v Babbit Ford Inc 571 P 2d 689 (1977) …. 1.34 — v Brown [1963] NSWR 1371 …. 14.45 — v Gregson [1920] AC 860 …. 22.29 — v New Zealand Basing Ltd [2018] 1 NZLR 245; [2017] NZSC 139 …. 12.9, 17.10 Browne v Browne [1917] NZLR 425 …. 10.27 Bruce v Bruce (1790) 6 Bro PC 566; 2 ER 1271 …. 10.17, 22.35

Brunel v Brunel (1871) LR 12 Eq 298 …. 10.27 Buchanan v Rucker (1808) 9 East 192; 103 ER 546 …. 5.32 Buckle v Buckle [1956] P 181 …. 13.40 Buckley v Gibbett [1996] 836 FCA 1 …. 4.69 Bulong Nickel Pty Ltd, Re (2002) 42 ACSR 52; [2002] WASC 126 …. 17.11 Bumper Development Corp Ltd v Commissioner of Police of the Metropolis [1991] 4 All ER 638; [1991] 1 WLR 1362 …. 7.36, 23.17 Bunyon v Lewis (No 3) [2013] FamCA 888 …. 10.55, 15.8, 15.12, 15.14, 15.24 Burgess (dec’d), Estate of, Re (2011) 111 SASR 401; [2011] SASC 223 …. 22.4 Burnham v Superior Court of California 495 US 604 (1990) …. 2.9 Burt v Yiannakis [2015] NZHC 1174 …. 3.9, 19.15, 19.27 Bushfield Aircraft Co v Great Western Aviation Pty Ltd (1996) 16 SR (WA) 97 …. 5.17 Busst v Lotsirb Nominees Pty Ltd [2003] 1 Qd R 477; [2002] QCA 296 …. 17.15, 17.23, 17.44, 18.44 Butler, Re [1969] QWN 48 …. 5.71 Buttigeig v Universal Terminal & Stevedoring Corp [1972] VR 626 …. 2.68 Buultjens v Robertson [2010] FCA 134 …. 11.11

C

C v C (Minor Abduction: Rights of Custody Abroad) [1989] 2 All ER 465 …. 15.40, 15.53 C and D (1979) 5 Fam LR 636 …. 13.11 C and P Trading Pty Ltd v Roladuct Spiral Tubing Pty Ltd [1994] 2 Qd R 247 …. 2.26 Cain, In the Marriage of (1987) 11 Fam LR 540; FLC 91-808 …. 14.26, 14.30, 16.14 Caithness, Earl of, Re (1891) 7 TLR 354 …. 22.33 Caldwell v Caldwell [1946] SASR 185 …. 10.56 Callum & Favre [2016] FamCA 487 …. 15.15 Cambridge Credit Corp Ltd v Lissenden (1987) 8 NSWLR 411 …. 20.10

xxiv



Table of Cases

Cammell v Sewell (1860) 5 H & N 728; 157 ER 1371 …. 18.42, 20.8, 21.10 Canadian Pacific Railway Co v Parent [1917] AC 195 …. 7.13, 18.47 Canavan, Re (2017) 349 ALR 534; [2017] HCA 45 …. 10.49, 10.52, 12.14 Cannon v Cannon [2005] 1 Fam LR 169 …. 15.42 Cape & Cape (2013) 50 Fam LR 1; [2013] FamCAFC 114 …. 15.1 Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd (2013) 298 ALR 666; [2013] WASCA 66 …. 4.22, 6.6, 6.8 Carey v Australian Broadcasting Corp (2010) 77 NSWLR 136; [2010] NSWSC 709 …. 18.20 Cariaga v Eighth Judicial District Court 762 P 2d 886 (1988) …. 2.9 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 …. 5.40, 23.22 Carron Iron Co v Maclaren (1855) 5 HLC 416; 10 ER 961 …. 4.87 Casaceli v Natuzzi SpA (2012) 292 ALR 143; [2012] FCA 691 …. 6.5, 6.6 Casdagli v Casdagli [1918] P 89 …. 8.19 Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd (No 2) [2012] FCA 1214 …. 6.38 — v TCL Airconditioner (Zhongshan) Co Ltd [2013] VSC 92 …. 2.43 Castree v ER Squibb & Sons Ltd [1980] 2 All ER 589 …. 2.68 Castrique v Imrie (1870) LR 4 HL 414 …. 5.18, 14.50 Caterpillar Financial Services Corp v SNC Passion [2004] 2 Lloyd’s Rep 99 …. 17.40 Catterall v Catterall (1847) 1 Rob Eccl 580; 163 ER 1142 …. 13.26, 13.28 Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365 …. 2.41 Central Petroleum Ltd v Geoscience Resource Recovery LLC [2017] QSC 223 …. 4.14, 4.54, 5.41 Centrebet Pty Ltd v Baasland (2012) 272 FLR 69; [2012] NTSC 100 …. 2.52, 2.76, 4.54 Century Credit Corp v Richard (1962) 34 DLR (2d) 291 …. 21.13, 21.14

Chaff and Hay Acquisition Committee v JA Hemphill and Sons Pty Ltd (1947) 74 CLR 375 …. 1.6, 7.36, 11.1 Challenor v Douglas [1983] 2 NSWLR 405 …. 2.78 Chamberlain v Chamberlain 43 NY 424 at 434 (1870) …. 22.41 Chan Wing (Vanuatu) Ltd v Motis Pacific Lawyers [1998] VUCA 3 …. 4.47 Chandra and Alhoub [2015] FamCA 77 …. 14.4, 14.26 Chang, Marriage of (1992) 15 Fam LR 629 …. 15.28 Chapman and Jansen, Re (1990) 13 Fam LR 853 …. 4.62, 4.69 Chappell’s Estate, Re 213 P 684 (1923) …. 22.41 Charron v Montreal Trust Co (1958) 15 DLR (2d) 240 …. 17.29 Charter Pacific Corp Ltd v Commonwealth Scientific & Industrial Research Organisation [1998] FCA 1362 …. 4.69 Chase Manhattan Bank NA v Israel-British Bank (London) Ltd [1981] Ch 105 …. 19.17 Chatenay v Brazilian Submarine Telegraph Co Ltd [1891] 1 QB 79 …. 17.17 Chen v Lu [2014] NSWSC 1053 …. 22.34 Chen and Tan [2012] FamCA 225 …. 16.6 Cheni v Cheni [1965] P 85 …. 13.15 Chenoweth v Summers (1941) 47 ALR (CN) 364a …. 2.50 Chicago Bridge and Iron Constructors Pty Ltd v Sarvanidis (1986) 44 SASR 418 …. 2.41 Chichester v Marquis and Marchioness of Donegal (1822) 1 Add 5; 162 ER 2 …. 10.20 Child Support Registrar & Higgins [2016] FamCAFC 2 …. 16.9 Chow Cho Poon (Private) Ltd, Re (2011) 80 NSWLR 507; [2011] NSWSC 300 …. 24.7, 24.23 Chubb Insurance Co of Australia Ltd v Moore (2013) 302 ALR 101; [2013] NSWCA 212 …. 12.13 Citibank Ltd v Nobes (1993) 15 Qld Lawyer Reps 9 …. 2.33 xxv





Private International Law in Australia

City of Detroit v Proctor 61 A 2d 412 (1948) …. 1.7, 11.1 City of Swan v McGraw-Hill Companies, Inc (2014) 99 ACSR 280; [2014] FCA 442 …. 2.16 CJ CGV Co Ltd, Re (2013) 281 FLR 390; [2013] VSC 656 …. 8.47 Clague v Graves (1987) 11 Fam LR 494 …. 15.71 Claim by Helbert Wagg & Co Ltd, Re [1956] Ch 323 …. 8.51, 17.11 Clark, Re [1904] 1 Ch 294 …. 20.16 Clark v Clark 222 A 2d 205 (1966) …. 1.29 Clarke v Clarke [1964] VR 773 …. 10.60 Clayton v Bant (No 2) [2015] FamCA 102 …. 14.4, 16.4, 16.8 Clements v Macaulay (1866) 4 Macph 583 …. 22.6 Clivpee Ltd (in admin), Re [2010] NSWSC 1215 …. 23.8 Close v Arnot [1997] NSWSC 569 …. 5.12, 5.29 Club Mediterranée NZ v Wendell [1989] 1 NZLR 216 …. 4.38 Club Resorts Ltd v Van Breda [2012] 1 SCR 572 …. 4.38 Clunies-Ross; Ex parte Tottendell, Re (1987) 72 ALR 241 …. 3.4 Clurname Pty Ltd v McGraw-Hill Financial, Inc [2017] FCA 1319 …. 2.75 Clyne v Federal Commissioner of Taxation (No 2) (1981) 57 FLR 198 …. 9.10 CMA CGM SA v Ship ‘Chou Shan’ (2014) 311 ALR 234; [2014] FCAFC 90 …. 18.16 Coast Lines v Hudig & Veder Chartering NV [1972] 2 QB 34 …. 17.17, 17.18 Cohen v Rothfield [1919] 1 KB 410 …. 4.53 Cohn, Re [1945] Ch 5 …. 7.33 Coleman v Shang [1961] AC 481 …. 13.19 Colin Joss & Co Pty Ltd v Cube Furniture Pty Ltd [2015] NSWSC 735 …. 6.38 Collens, Re [1986] Ch 505 …. 22.18 Collier v Rivaz (1841) 2 Curt 855; 163 ER 608 …. 8.13, 8.14, 8.15, 8.19 Colonial Bank v Cady (1890) 15 App Cas 267 …. 21.31 Colosseum Investment Holdings Pty Ltd v Vanguard Logistics Services Pty Ltd [2005] NSWSC 803 …. 2.77

Colt Industries Inc v Sarlie [1966] 1 All ER 673 …. 2.9 — v — (No 2) [1966] 3 All ER 85 …. 5.22 Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCAFC 192 …. 4.23, 6.2, 6.5, 6.6, 6.7, 6.13 Commissioner for Stamp Duties v Salting [1907] AC 449 …. 20.17 Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694 …. 20.18, 20.19 Commissioner of Stamps v Hope [1891] AC 476 …. 20.11, 20.14, 20.28 Commonwealth v Australian Capital Territory (2013) 250 CLR 441; [2013] HCA 55 …. 13.1, 13.7, 13.8, 13.9, 13.10, 13.14, 13.20, 13.27 — v Woodhill (1917) 23 CLR 482 …. 3.3, 3.7 — v Yarmirr (2001) 200 CLR 1 …. 20.6 Commonwealth Agricultural Service Engineers Ltd, Re [1928] SASR 342 …. 9.29 Commonwealth Bank v White (No 2) [2004] VSC 268 …. 4.28 Commonwealth Bank of Australia v White [1999] 2 VR 681; [1999] VSC 262 …. 2.76, 4.14, 4.18, 4.91 — v — (No 4) [2001] VSC 11 …. 4.91 Commonwealth Central Authority & Cavanaugh [2015] FamCAFC 233 …. 15.31 Compagnie D’Armement Maritime SA v Compagnie Tunisienne De Navigation SA [1971] AC 572 …. 17.11, 17.14 Compagnie des Messageries Maritimes v Wilson (1954) 94 CLR 577 …. 4.10, 4.28 Compagnie Tunisienne de Navigation SA v Compagnie d’Armement Maritime SA [1971] AC 572 …. 6.19 Compania Merabello San Nicholas SA, Re [1973] Ch 75 …. 24.28 Compania Naviera Vascongado v Steamship ‘Cristina’ [1938] AC 485 …. 20.9 Conlon v Mohammed [1987] ILRM 5623 …. 13.23 Connelly v RTZ Corp Plc [1998] AC 854 …. 4.35 Constantinou, Re [2013] 2 Qd R 219; [2012] QSC 332 …. 3.10

xxvi



Table of Cases

Continental Bank NA v Aeokas Compania Naviera SA [1994] 2 All ER 540 …. 4.87 Contractors Ltd v MTE Control Gear Ltd [1964] SASR 47 …. 4.16 Coode, In the Goods of (1867) LR 1P&D 449 …. 2.88 Cooper v Cooper’s Trustees (1888) 15 R (HL) 21 …. 13.32 — v Casey (1995) 18 Fam LR 433 …. 10.64, 15.31 Cooper-King v Cooper-King [1900] P 65 …. 9.10 Copin v Adamson (1874) LR 9 Ex 345 …. 23.25 — v — (1875) 1 Ex D 17 …. 23.25 Coppin v Coppin (1725) 2 P Wms 291 …. 22.19 Corbett v Corbett [1957] 1 All ER 621 …. 14.35, 14.42 — v — [1971] P 83 …. 13.6, 13.11 Corcoran v Corcoran [1974] VR 164 …. 18.4 Cordoba Shipping Co Ltd v National State Bank [1984] 2 Lloyd’s Rep 91 …. 2.75 Corin v Corin (1971) 7 SR (WA) 124 …. 15.18 Corvisy v Corvisy [1982] 2 NSWLR 557 …. 3.3 Coupland v Arabian Gulf Petroleum Co [1983] 1 WLR 1136 …. 18.43 Courtice v Australian Electoral Commission (1990) 95 ALR 297 …. 2.30 Courtney, Re; Ex parte Pollard (1840) Mont & Ch 239 …. 21.7 Cox v Ergo Versicherung AG [2014] AC 1379 …. 7.44, 18.34 CPPIB Credit Investments Inc v Ren [2017] NSWSC 771 …. 14.26 Craig v Allstate Insurance Co of Canada (2002) 214 DLR (4th) 103 …. 7.41 Crawford (dec’d), Estate of, Re (2004) 90 SASR 119; [2004] SASC 370 …. 22.31, 22.45 Crick v Hennessy [1973] WAR 74 …. 5.20 Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22; 62 ALR 1 …. 2.19 Crumpler v Global Tradewaves Ltd (in liq) [2013] FCA 1127 …. 24.11

Crumpton’s Judicial Factor v Finch-Noyes 1918 SC 378 …. 10.18, 10.22 Cruse v Chittum [1974] 2 All ER 940 …. 10.63 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 …. 4.54, 4.82, 4.83, 4.84, 4.85, 4.86, 4.87, 4.89, 4.90, 16.8 — v Thompson (2003) 59 NSWLR 77 …. 7.40 Cuban Atlantic Sugar Sales Corp v Compania de Vapores San Elefterio (C/V) Lda [1960] 1 QB 187 …. 2.58 Cunnington, Re [1924] 1 Ch 68 …. 22.42 Currie, Will of (1899) 25 VLR 224 …. 12.18, 20.15 Cutcliffe, Re [1940] Ch 565 …. 20.3 Czernikow Ltd v Rolimpex [1979] AC 351 …. 3.16

D

D (a Child), Re [2005] UKHL 51 …. 15.48 D, an Infant, Re [1943] Ch 568 …. 15.18 D R Insurance Co v Central National Insurance Co [1996] 1 Lloyd’s Rep 74 …. 2.50 Dagi v Broken Hill Proprietary Co Ltd (No 2) [1997] 1 VR 428 …. 3.4 Dahms v Brandsch (1911) 13 CLR 336 …. 2.19 Daler and Ehan [2014] FamCA 741 …. 14.40 Dalhousie, Countess of v M’Douall (1840) 7 Cl & F 817; 7 ER 1279 …. 10.17, 10.18 D’Almeida Araujo Lda v Sir Frederick Baker & Co Ltd [1953] 2 QB 329 …. 7.39 Dalrymple v Dalrymple (1811) 2 Hag Con 54; 161 ER 665 …. 1.22, 13.22 Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87 …. 9.3, 9.4, 9.8, 9.10, 19.27 Dampskibsselskabet Norden A/S v Beach Building and Civil Group Pty Ltd (2013) 216 FCR 469; [2013] FCAFC 107 …. 6.13 Daralievski v Transport Accident Commission [2003] SADC 30 …. 4.79 Darcy v Medtel Pty Ltd (No 3) [2004] FCA 807 …. 7.49

xxvii





Private International Law in Australia

Darrell Lea Chocolate Shops Pty Ltd v Spanish-Polish Shipping Co Inc (1990) 25 NSWLR 568 …. 2.77 Das v George Weston Ltd [2017] ONSC 4129 …. 7.41, 8.64 D’Ath v TNT Australia Pty Ltd [1992] 1 Qd R 369 …. 2.68 David Syme and Co Ltd (Rec and Mgr Appt’d) v Grey (1992) 115 ALR 247 …. 2.31, 2.32, 2.33, 2.34, 2.35, 12.31, 12.34, 12.35, 12.36 Davidson v Global Investments International Ltd (1995) 19 ACSR 89 …. 24.25 Davies v Davies (1915) 24 DLR 737 …. 22.33 Davis v Turning Properties Pty Ltd (2005) 222 ALR 676 …. 5.24 Dawn Jade Ltd v Himanshu Girdhar Dua [2014] NSWSC 1085 …. 5.51, 9.2, 9.5 Dawson v Baker (1994) 120 ACTR 11 …. 4.61, 4.62, 4.69 — v Perpetual Trustee Co Ltd (1953) 89 CLR 138 …. 3.9 De Beeche v South American Stores Ltd [1935] AC 148 …. 9.10 De Dampierre v De Dampierre [1988] AC 92 …. 14.6 De L v Director-General, New South Wales Dept of Community Services (1996) 187 CLR 640 …. 15.29, 15.44 De Reneville v De Reneville [1948] P 100 …. 7.20, 13.31, 13.33 De Santis v Russo (2001) 27 Fam LR 414; [2001] QSC 065 …. 5.29, 5.34, 5.57, 8.58 — v — [2002] 2 Qd R 230; [2001] QCA 457 …. 5.58 De Thoren v Attorney-General (1876) 1 App Cas 686 …. 7.33 De Virte, Re [1915] 1 Ch 920 …. 22.29 Deer Park Engineering Pty Ltd v Townsville Harbour Board (1974) 5 ALR 131 …. 2.52, 2.58 DEF and the Protected Estates Act 1983, Re (2005) 192 FLR 92; [2005] NSWSC 534 …. 2.35, 5.69, 5.71 Denpro Pty Ltd v Centrepoint Freeholds Pty Ltd (1983) 48 ALR 39 …. 2.30 Department of Family and Community Services v Raelson [2014] FamCA 131 …. 10.69

Dept of Communities & Clementine [2010] FamCA 746 …. 15.39 Dept of Communities, Child Safety and Disability Services and Garning (Discharge Application) [2012] FamCA 839 …. 15.33 Dept of Health and Community Services v Casse (1995) 19 Fam LR 474 …. 15.31, 15.47 Deputy Commissioner of Taxation v Ahern [1986] 2 Qd R 342 …. 2.46 Despina GK, The [1983] 1 All ER 1 …. 5.18 Desputeaux v Editions Chouette 2003 SCC 17 …. 6.5 D’Etchegoyen v De’Etchegoyen (1883) 13 PD 132 …. 10.27 Deutsche National Bank v Paul [1898] 1 Ch 283 …. 2.85 Deutsche Schachtbau-und Tiefbohrgesellschaft mbH v Shell International Petroleum Co Ltd (No1&2) [1990] 1 AC 295 …. 6.17, 6.20 Dewar v Maitland (1866) LR 2 Eq 834 …. 22.29 Di Mento v Visalli [1973] 2 NSWLR 199 …. 13.31 Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230 …. 18.46 Diamond v Bank of London and Montreal Ltd [1979] QB 333 …. 2.41, 2.75 Dimskal Shipping Co SA v International Transport Workers Federation (The Evia Luck (No 2)) [1992] 2 AC 152 …. 17.33 Director-General, Department of Communities, Child Safety and Disability Services v Tallulah [2015] FamCA 4 …. 10.70 — v Williams [2016] FamCA 227 …. 10.69 Director-General, Department of Communities, Child Safety and Disability Services & Ibbott (No 2) [2015] FamCA 698 …. 10.63, 10.69, 15.40 Director-General, Department of Communities, Child Safety and Disability Services and Sabeer [2017] FamCA 252 …. 10.69 Director-General, Department of Communities (Child Safety Services) v Hardwick [2011] FamCA 553 …. 10.63, 10.68

xxviii



Table of Cases

Director-General, Dept of Families v RSP (2003) 30 Fam LR 566; [2003] FamCA 623 …. 15.51 Director-General, Dept of Family and Community Services v Raddison (2012) 46 Fam LR 567; [2012] FamCAFC 41 …. 15.57 Director-General of Family and Community Services (NSW) & Davis (1990) 14 Fam LR 381 …. 15.53 Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458 …. 2.64, 2.65, 2.66, 2.68, 18.10 Dobson & Van Londen (2005) FLC 93-225 …. 16.8 Dockpride Pty Ltd v Subiaco Redevelopment Authority [1999] FCA 133 …. 4.69 Doe v Howard [2015] VSC 75 …. 5.22, 5.30, 8.43 Dohm & Acton [2008] FamCA 482 …. 13.52 Donnelly, Re (1927) 28 SR (NSW) 34 …. 22.34 Donohue v Armco Inc [2002] 1 Lloyd’s Rep 425 …. 4.90 Dornoch Ltd v Westminster International BV (The WD Fairway) [2009] 2 Lloyd’s Rep 191 …. 8.20, 20.9, 21.17 Dornom, Marriage of [1984] FLC 91-556 …. 14.32 Dost Aly Khan, Goods of (1880) 6 PD 6 …. 22.10 Douez v Facebook, Inc [2017] SCC 33 …. 4.26 Douglas v Longano (1981) 147 CLR 212 …. 10.11 — v Philip Parbury & Associates [1999] WASC 15 …. 4.48, 4.69, 4.75 Douglas Financial Consultants Pty Ltd v Price [1992] 1 Qd R 243 …. 21.14, 21.15 Douglas Webber Events Pty Ltd, Re (2014) 291 FLR 173; [2014] NSWSC 1544 …. 4.9, 4.18, 4.56, 23.10 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 …. 2.66, 2.70, 2.71, 2.72, 2.73, 2.74, 2.77, 2.79, 4.46, 4.51, 5.3, 18.11, 18.15 Downing v Al Tameer Establishment [2002] EWCA Civ 721 …. 6.14

DP v Commonwealth Central Authority (2001) 206 CLR 401; [2001] HCA 39 …. 15.29, 15.31, 15.40, 15.45, 15.48, 15.49, 15.55, 15.56 Drew Brown Ltd v The Orient Trader (1972) 34 DLR (3d) 339 …. 17.42 Drews v Insurance Corp of British Columbia (1998) 55 BCLR (3d) 281 …. 18.43 Drill-Tec GmbH Grossbohr-undUmwelttechnik v Campbell [2002] NSWSC 1173 …. 2.16 Dryden v Dryden (1876) 2 VLR (E) 74 …. 9.12 Du Bray v McIlwraith [2009] NSWSC 888 …. 3.8 Dubai Electricity Co v Islamic Republic of Iran Shipping Lines [1984] 2 Lloyd’s Rep 380 …. 17.24 Duckworth v Jamison (2014) 51 Fam LR 471; [2014] FamCA 308 …. 15.8, 15.15 Duff v R (1979) 28 ALR 663 …. 3.29, 3.31 Dukov v Dukov [1969] QWN 9 …. 13.29 Duleep Singh, Re (1890) 6 TLR 385 …. 10.18 Dulles’ Settlement (No 2), Re; Dulles v Vidler [1951] Ch 842; [1951] 2 All ER 69 …. 2.15, 2.16, 5.20 Dunbee v Gilman and Co (Australia) Pty Ltd [1968] 2 Lloyd’s Rep 394 …. 5.15 Duncan v Lawson (1889) 41 Ch D 394 …. 20.25, 22.24 Durie’s Trustees v Osborne [1960] SC 444 …. 22.42, 22.54 Durra v Bank of New South Wales [1940] VLR 170 …. 2.50 Dutton v Howell (1693) Shower 24; 1 ER 17 …. 1.22 Dyer v Dyno Nobel Asia Pacific Ltd [2003] NSWSC 213 …. 7.49 Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] 1 NZLR 289 …. 9.11 Dynasty Ptd Ltd v Coombs (1995) 13 ACLC 1290 …. 23.12 Dyno Wesfarmers Ltd v Knuckey [2003] NSWCA 375 …. 7.49, 9.2, 9.5, 18.34 xxix





Private International Law in Australia Engel v Adelaide Hebrew Congregation Inc (2007) 98 SASR 402; [2007] SASC 234 …. 17.1 English v Donnelly [1958] SC 494 …. 17.13 English, Scottish and Australian Chartered Bank, Re [1893] 3 Ch 385 …. 24.31 English’s Coasting and Shipping Co Ltd v British Finance Co Ltd (1886) 14 R 220 …. 5.49 Ennstone Building Products Ltd v Stanger Ltd [2002] 1 WLR 3059 …. 17.35 Entores Ltd v Miles Far East Corp [1955] 2 QB 327 …. 2.52 Erie Beach Co Ltd v Attorney-General for Ontario [1930] AC 161 …. 20.16 Eriez Magnetics Pty Ltd v Duro Felguera Australia Pty Ltd [2017] WASC 304 …. 6.6 Esal (Commodities) Ltd v Pujara [1989] 2 Lloyd’s Rep 479 …. 2.16 ESCO Corp v Bradken Resources Pty Ltd (2011) 282 ALR 282; [2011] FCA 905 …. 6.36 Esmore & Esmore (1979) FLC 90-711 …. 16.8 Estate Grundy; La Valette v ChambersGrundy [2018] NSWSC 104 …. 2.15, 22.48 Estate of Constantinou (decd), Re [2013] 2 Qd R 219; [2012] QSC 332 …. 19.4, 19.20, 19.21 Eurogold Ltd v Oxus Holdings [2007] FCA 811 …. 4.29 Evans v Burrell (1859) 28 LJP & M 82 …. 22.4 — v European Bank Ltd (2004) 61 NSWLR 75; [2004] NSWCA 82 …. 8.55 EWC Payments Pty Ltd v Commonwealth Bank of Australia (No 2) [2014] VSC 4 …. 21.36 Excalibur Ventures LLC v Texas Keystone Inc [2013] EWHC 2767 …. 19.5 Exportrade Corp v Irie Blue New Zealand Ltd [2013] NZCA 675 …. 4.38 Eyre v Nationwide News Pty Ltd [1967] NZLR 851 …. 2.41, 2.69

E

E (Children) (Abduction: Custody Appeal), Re [2012] 1 AC 144 …. 15.51 E (D), Re [1967] Ch 761 …. 15.70 E I Du Pont de Nemours & Co & Endo Labs Inc v Agnew & Kerr [1987] 2 Lloyd’s Rep 585 …. 17.23, 17.24 Earthworks and Quarries Ltd v FT Eastment and Sons Pty Ltd [1966] VR 24 …. 2.50, 2.58 Easterbrook v Easterbrook [1944] P 10 …. 13.39 Ebbage v Manthey [2001] QSC 004 …. 23.21 Edmunds v Simmonds [2001] 1 WLR 1003 …. 7.41 Efax Pty Ltd v Sonray Capital Markets Pty Ltd (in liq) (2011) 84 ACSR 195; [2011] NSWSC 554 …. 23.8 Egbert v Short [1907] 2 Ch 205 …. 4.33 Eisenwerk v Australian Granites Ltd [2001] 1 Qd R 461 …. 6.14 EJK v TSL (2006) 35 Fam LR 559; [2006] FamCA 730 …. 15.27 Ekran OAO v Magneco Metrel UK Ltd [2017] EWHC 2208 (Comm) …. 6.32 El Condado, The (1939) 63 Lloyd’s L Rep 330 …. 8.49 El Oueik, In the Marriage of (1977) 29 FLR 171 …. 8.58, 10.60, 14.47, 14.48 Eldaleh [2016] FamCA 1103 …. 13.52 Elderslie Finance Corp Ltd v New Page Pty Ltd (No 5) [2007] FCA 961 …. 24.24 Electra Air Conditioning BV v Seeley International Pty Ltd [2008] FCAFC 169 …. 6.6 Electro Optic Systems Pty Ltd v State of New South les (2012) 273 FLR 304; [2012] ACTSC 184 …. 18.11 Elliott v Bali Bungy Co [2002] NSWSC 906 …. 18.34 Ellis, the Estate of [2017] NTSC 56 …. 22.36, 22.37 Emajor v Emajor [2016] NZHC 2022 …. 5.29 Emanuel v Symon [1908] 1 KB 302 …. 5.19, 5.57 Emin v Yeldag [2002] 1 FLR 956 …. 8.38 Eng Liat Kiang v Eng Bak Hern [1995] 3 SLR 97 …. 4.38

F

F (a minor), Re [1992] 1 Fam LR 548 …. 15.37 F (a minor), Re [1995] Fam 224 …. 15.37 xxx



Table of Cases

F (Hague Convention: Child’s Objections), Re (2006) 36 Fam LR 183; [2006] FamCA 685 …. 15.54 FAI General Insurance Co Ltd v Ocean Marine Mutual Protection & Indemnity Association Ltd (1997) 41 NSWLR 559 …. 4.14 — v — (1997) 41 NSWLR 117 …. 4.16 Farnell and Chanbua [2016] FCWA 17 …. 10.13 Faxtech Pty Ltd v ITL Optronics Ltd [2011] FCA 1320 …. 4.15, 4.18 Featherstone Resources Ltd, Re; Tetley v Weston (2014) 288 FLR 265; 101 ACSR 394 [2014] NSWSC 1139 …. 4.56 Federal Finance & Mortgage Ltd v Winternitz SC(NSW), Sully J, 9 November 1989, unreported …. 5.19 Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International BV (No 3) (2013) 300 ALR 741; [2013] FCA 85 …. 5.34 Felixstowe Dock & Railway Co v United States Lines Inc [1989] QB 360 …. 5.20 Fenston’s Settlement, Re [1971] 3 All ER 1092 …. 22.53, 22.54 Fenton v Fenton [1957] VR 17 …. 14.38 Fernandez v Perez [2012] NSWSC 1242 …. 9.24 Ferrier-Watson and McElrath, Marriage of (2000) 155 FLR 311; [2000] FamCA 219 …. 10.4, 10.7, 10.20, 10.24, 10.27, 14.8 Ferreira v Stockinger [2015] NZHC 2916 …. 10.29 Ferris v Plaister (1994) 34 NSWLR 474 …. 6.13 Fertico v Murray River Corn [2002] SADC 89 …. 4.79 Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32 …. 17.3 Fielding v Doran (1984) 60 ALR 342 …. 2.23 Filter Solutions Ltd v Donaldson Australia Pty Ltd [2006] NZHC 762 …. 7.31 Finlay v Finlay (1885) 23 SLR 584 …. 16.7 Finnish Marine Insurance Co Ltd v Protective National Insurance Co [1990] 1 QB 1078 …. 2.16, 2.50, 2.60

Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31 …. 3.22, 3.27 Flaherty v Girgis (1985) 4 NSWLR 248 …. 2.77, 2.78 — v — (1987) 162 CLR 574 …. 2.3, 2.25, 2.77, 2.78 Fleming v Marshall (2011) 279 ALR 737; [2011] NSWCA 86 …. 2.60, 9.19, 9.20, 17.17, 17.54, 19.8 Fletcher Steel v Moghe [2006] NSWSC 425 …. 5.17 Flint Ink NZ Ltd v Huhtamaki Australia Pty Ltd [2014] VSCA 166 …. 6.5, 6.10, 6.11 Foley v Farquharson [2003] FLC 93; [2003] QSC 021 …. 4.60 Folliott v Ogden (1789) 1 H Bl 123; 126 ER 75 …. 8.51 Fordyce v Bridges (1848) 2 Ph 497; 41 ER 1035 …. 22.41 Forsikringsaktieselskapet Vesta v Butcher [1988] 2 All ER 43 …. 8.3, 17.25 Foster v Driscoll [1929] 1 KB 470 …. 8.62, 17.40 — v Skilled Communication Services Pty Ltd [2003] QCA 363 …. 18.44 Four Seasons Holdings Inc v Brownlie [2017] UKSC 80 …. 17.17 Francis v Emijay Pty Ltd [2006] 2 Qd R 5; [2006] QCA 062 …. 18.44 Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 …. 4.22, 6.5 Fraser v Fraser [2017] NZHC 1055 …. 4.56 Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418 …. 12.17, 17.12 Freke v Lord Carbery (1873) LR 16 Eq 461 …. 20.2, 20.25, 22.24 Freme v Clement (1881) 18 Ch D 499 …. 22.49 Fremlin v Fremlin (1913) 16 CLR 212 …. 10.15 Friedrich v Friedrich 982 F 2d 1396 (1992) …. 15.31 — v — 78 F 2d 1060 (1996) …. 15.51 Fry, Re [1946] Ch 312 …. 21.31 Fulcrum Securities Ltd v Lake [2009] NSWSC 1202 …. 5.52

xxxi





Private International Law in Australia

Fuld’s Estate (No 3), Re [1968] P 675 …. 7.33, 10.25, 10.27, 22.38, 22.40 Fuller v K & J Trucks Coffs Harbour Pty Ltd (2006) 67 NSWLR 516 …. 7.40 Fullford v Pearson [2004] NSWSC 150 …. 7.49 Furse, dec’d, Re [1980] 3 All ER 838 …. 10.25

G

G, Re [1966] NZLR 1028 …. 10.22 G (a Minor) (Enforcement of Access Abroad), Re [1993] Fam 216 …. 15.57 G v G (1985) 10 Fam LR 718 …. 5.69 — v P [1977] VR 44 …. 10.11 G McG v DW (No 1) [2000] 1 ILRM 107 …. 14.35 Gainsford v Tannenbaum (2012) 216 FCR 543; [2012] FCA 904 …. 24.9, 24.22 Gallagher, Re (2018) 355 ALR 1; (2017) 349 ALR 534 …. 10.49, 10.50, 10.52 Gambier v Gambier (1835) 7 Sim 263; 58 ER 838 …. 10.20 Gandhi v Patel [2002] 1 FLR 603 …. 13.43 Gardner v Wallace (1995) 184 CLR 95 …. 2.19, 2.21, 2.23 Gargan v Gargan [1999] QSC 316 …. 4.60 Gem Plastics Pty Ltd v Satrex Maritime (Pty) Ltd (1995) 8 ANZ Ins Cas 61-283 …. 4.16 Genish-Grant v Director-General, Dept of Community Services (2002) 29 Fam LR 51 …. 15.52 Gereis v Yagoub [1997] 1 FLR 854 …. 13.43 Ghosh v D’Rozario [1963] 1 QB 106 …. 3.33 Giedo van der Garde BV v Sauber Motorsport AG [2015] VSC 80 …. 6.5, 6.38 Gienar v Meyer (1796) 2 H Bl 603; 126 ER 728 …. 17.7 Gilmore, In the Marriage of [1993] FamCA 3 …. 16.16 Gilmore v Gilmore [1993] FLC 92-353 …. 14.6, 16.7, 16.10, 16.14 — v — [1993] NZFLR 561 …. 16.10 Gimli Auto Ltd and Eagle Ridge Pontiac Buick GMC v BDO Dunwoody Ltd (Trustee) and Canada Campers Inc 1998 ABCA 154 …. 21.12

Glasson v Scott (1973) 1 ALR 370 …. 15.18 Glencore International AG v Metro Trading Inc [2001] 1 Lloyd’s Rep 284 …. 8.20, 18.42, 21.9, 21.10, 21.11, 21.17, 21.20 Global Container Lines Ltd v Bonyad Shipping Co [1999] 1 Lloyd’s Rep 287 …. 23.17 Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) (2010) 79 ACSR 383; [2010] NSWCA 196 …. 4.23, 4.24, 4.25 Godfrey v Demon Internet [2001] QB 201 …. 2.71 Godleman v Breavington [1987] VR 645 …. 11.8 Goenaga, Re [1949] P 367 …. 22.10 Goetschius v Brightman 156 NE 660 (1927) …. 18.42 Golden Acres Ltd v Queensland Estates Pty Ltd [1969] Qd R 378 …. 12.17, 17.10, 17.12 Goldsborough Mort & Co Ltd v Hall [1948] VLR 145 …. 17.37 Goliath Portland Cement Co Ltd v Bengtell (1994) 33 NSWLR 414 …. 12.20 Gomez v Gomez-Monche Vives [2008] EWCA Civ 1065 …. 19.20 Gonzalez v Agoda Co Pte Ltd [2017] NSWSC 1133; [2017] NSWSC 1133 …. 4.14, 4.26, 17.51 Goodwin v United Kingdom (2002) 35 EHRR 18 …. 13.12 Gordhan v Kerdemelidis [2011] NZHC 1808 …. 5.29 — v — [2013] NZHC 566 …. 5.17 Gore v Octahim Wise Ltd [1995] 2 Qd R 242 …. 7.10, 7.11 Gorton v Australian Broadcasting Commission (1973) 22 FLR 181 …. 2.69, 18.20 Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463 …. 11.10, 11.23, 11.24 Gould v Brown (1998) 193 CLR 346; [1998] HCA 6 …. 2.29, 23.1 Government of India v Taylor [1955] AC 491 …. 5.67, 8.45, 8.47 Grace v Macarthur 170 F Supp 442 (1959) …. 2.9 Graeme Mason v Murray’s Charter Coaches and Travel Services Pty Ltd (1998) 88 FCR 308; [1998] FCA 1430 …. 7.48

xxxii



Table of Cases

Gramophone Co Ltd v Magazine Holder Co (1911) 28 RPC 221 …. 9.3 Gray v Formosa [1963] P 259 …. 8.63, 14.47, 14.48 Gray Eisdell Timms Pty Ltd v Combined Auctions Pty Ltd (1995) 17 ACSR 303 …. 23.12 Graziano v Daniels (1991) 14 Fam LR 697 …. 15.42, 15.45, 15.56 Greenfield, Re [1985] 2 NZLR 662 …. 22.48 Greenfield and Dawson, Marriage of (1984) 9 Fam LR 606 …. 15.75 Gregg v Perpetual Trustee Co (1918) 18 SR (NSW) 252 …. 21.4, 21.6, 21.7 Gresham Property Investments Ltd v Global Consulting Services Pty Ltd [2016] NSWSC 415 …. 4.74 Griffith v Australian Broadcasting Corp [2002] NSWSC 86 …. 7.49 Grissom v Grissom [1949] QWN 52 …. 14.45 Groos, Re [1915] 1 Ch 572 …. 22.40 Grosvenor, Re [2017] FamCA 366 …. 15.74 Grummett v Grummett (1965) 7 FLR 415 …. 14.13 Grzybowicz v Grzybowicz [1963] SASR 62 …. 13.29 Gsponer v Johnstone (1988) 12 Fam LR 755 …. 15.53 Guardian of Matt v Barber (2002) 216 DLR (4th) 574 …. 18.41 Gumbrell v Jones [2001] NZFLR 593 …. 15.33, 15.59 Gutnick v Indian Farmers Fertiliser Cooperative Ltd [2016] VSCA 5 …. 6.38 Guzowski v Cook (1981) 149 CLR 128 …. 2.23

H

H, Re [2000] 2 All ER 1 …. 15.40 H, Re [2000] 2 Fam LR 51 …. 15.42 H (Abduction: Custody Rights), Re [1991] 2 AC 476 …. 15.39 H v S [2015] NZHC 310 …. 8.62, 21.11 H and H [1985] FLC 91-640 …. 15.40 Hackford v Hackford [2015] FamCA 415 …. 15.74 Hagen, The [1908] P 189 …. 2.41 Hall v Australian Capital Territory Electricity Authority [1980] 2 NSWLR 26 …. 2.68, 2.83

Hallen v Angledal [1999] NSWSC 552 …. 6.36 Halpern v Halpern [2008] QB 195 …. 17.1 Halvard, Re [2016] FamCA 1051 …. 15.74 Hamilton v Hamilton [2016] EWHC 1132 …. 7.23 — v Merck & Co Inc (2006) 66 NSWLR 48; [2006] NSWCA 55 …. 7.24, 7.51, 18.27 Hamilton-Irvine, Re (1990) 94 ALR 428 …. 4.66 Hamza v Minister for Justice, Equality and Law Reform [2010] IEHC 427 …. 13.23 Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170 …. 6.6, 6.11, 6.23 Haque v Haque (No 1) (1962) 108 CLR 230 …. 1.31, 1.32, 1.33, 8.11, 8.12, 13.4, 13.19, 13.58, 20.22 — v — (No 2) (1965) 114 CLR 98 …. 20.2, 20.3, 20.6, 20.8, 20.10, 20.14, 20.21, 20.22, 20.23, 20.24, 20.26, 20.28, 20.29, 20.32 Harding v Wealands [2005] 1 All ER 415; [2005] 1 WLR 1539 …. 7.40, 7.42, 23.21 — v — [2007] 2 AC 1 …. 7.40, 7.41, 7.42, 23.21 Hargood v OHTL Public Company Ltd [2015] NSWSC 446 …. 4.14, 4.26, 17.28 Harold M Pitman Co v Typecraft Stoneware Ltd 626 F Supp 305 (1986) …. 2.9 Harris v Harris [1947] VLR 44 …. 5.69, 5.70, 5.71 Har-Shefi v Har-Shefi (No 2) [1953] P 220 …. 14.40 Hartwell Trent (Australia) Pty Ltd v Tefal Société Anonyme [1968] VR 3 …. 2.41 Harvey v Farnie (1882) 8 App Cas 43 …. 14.28 Hashmi v Hashmi [1972] Fam 26 …. 13.19 Hassan v Hassan [1978] 1 NZLR 385 …. 13.16, 13.32, 13.56, 14.47 Hausman v Buckley 299 F 2d 696 (2nd Cir 1962) …. 23.21 Hayel Saeed Anam & Co v Eastern Sea Freighters Pty Ltd (1973) 7 SASR 200 …. 2.61 Hayes, Pumpkin Patch Originals Ltd (Admin Apptd) (in Rec) v Pumpkin Patch Originals Ltd (Admin Appointed) (in Rec) [2016] FCA 1353 …. 24.7 Hays v Hays [2015] EWHC 3825 …. 21.6

xxxiii





Private International Law in Australia

Helbert Wagg & Co Ltd, Re [1956] Ch 323 …. 1.4, 20.10, 21.28 Hellenic Lines Ltd v Embassy of Pakistan 307 F Supp 947 (1969) …. 17.8 Hellmann’s Will, Re (1866) LR 2 Eq 363 …. 22.39 Henry, Marriage of (1995) 19 Fam LR 227 …. 10.25 Henry v Commonwealth (2012) 264 FLR 381; [2012] ACTSC 94 …. 7.49 — v Henry (1996) 185 CLR 571 …. 1.26, 4.42, 4.53, 4.54, 14.6, 14.7, 14.8, 14.27, 16.7, 24.29 Henthorn v Fraser [1892] 2 Ch 27 …. 2.53 Henwood v Levesque Beaubien Geoffrion Inc (1998) 128 Man R (2d) 72 …. 4.48 Herman v Meallin (1891) 8 WN (NSW) 38 …. 5.12, 10.56 Hernando, Hernando, Re v Sawtell (1884) 27 Ch D 284 …. 22.23, 22.24, 22.53 Herron, Re [1941] 4 DLR 203 …. 22.48 Hesperides Hotels Ltd v Aegean Turkish Holidays Ltd [1977] 3 WLR 656 …. 8.38 — v Muftizade [1979] AC 508 …. 1.18, 3.3 Hewit’s Trustees v Lawson (1891) 18 R 793 …. 21.5 Hibbert and Hetley [2018] FamCA 1 …. 10.69 Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) 90 FCR 1 …. 6.7 High Commissioner for Pakistan in the United Kingdom, The v National Westminster Bank plc [2015] EWHC 3052 …. 22.7 HIH Casualty and General Insurance Ltd, Re [2008] 1 WLR 852 …. 24.1, 24.23 HIH Casualty & General Insurance Ltd (in liq) v Wallace (2006) 68 NSWLR 603; [2006] NSWSC 1150 …. 6.3, 6.13, 17.24 Hills & Killen [2015] FamCA 536 …. 13.52 Hilton v Guyot 159 US 113 (1894) …. 1.34 Hiralal v Hiralal (2013) 10 ASTLR 300; [2013] NSWSC 984 …. 2.6, 19.4, 19.9, 19.27, 22.7, 22.14 Hislop v Paltar Petroleum Ltd (No 3) [2017] FCA 1253 …. 9.2 Hitchcock v Pratt (2010) 79 NSWLR 687; [2010] NSWSC 1508 …. 12.4, 22.34, 22.48 Ho v Akai Pty Ltd (in liq) (2006) 247 FCR 205 …. 2.40

Hobson v Queanbeyan Australian Football Club [2003] ACTSC 8 …. 7.40 Hockey v Mother o’ Gold Consolidated Mines Ltd (1903) 29 VLR 196 …. 21.11 Hodge v Club Motor Insurance Agency Pty Ltd (1974) 7 SASR 86 …. 7.17, 7.19, 17.3, 18.36 Hodgson v Dimbola Pty Ltd [2009] ACTSC 59 …. 1.26, 18.8, 18.27 — v Stawell (1854) 1 VLT 51 …. 13.26 Hoey v Martin’s Stock Haulage (Scone) Pty Ltd [2003] ACTSC 41 …. 7.40 Hog v Lashley (1792) 6 Bro PC 577; 2 ER 1278 …. 10.7 Hogg v Provincial Tax Commissioner [1941] 4 DLR 501 …. 20.29 Holden v Holden [1969] VR 334 …. 15.18 Holland v Lampen-Wolfe [2000] 3 All ER 833 …. 3.21 Hollandia, The, Re The Morviken [1983] 1 AC 565 …. 17.46 Holman v Johnson (1775) 1 Coup 341; 98 ER 1120 …. 1.22 Homawoo v GMF Assurance SA [2010] EWHC 1941 …. 7.41 Home Ice Cream Pty Ltd v McNabb Technologies LLC (No 2) [2018] FCA 1093 …. 4.18 Homeward Bound Gold Mining Co NL v McPherson (1896) 17 LR (NSW) (Eq) 281 …. 9.23 Hong & Cao [2018] FamCA 40 …. 16.7 Hooft van Huysduynen (No 1), Marriage of [1990] FLC 92-119 …. 15.32 Hooper v Gumm (1867) LR 2 Ch App 282 …. 20.9 Hooshmand v Ghasmezadegan (2000) FLC 93-044 …. 9.10, 13.26, 13.30 Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 …. 23.22 Houlditch v Marquess of Donegal (1834) 2 Cl & F 470; 6 ER 1232 …. 5.24 House of Spring Gardens Ltd v Waite [1991] 1 QB 241 …. 5.28 Hoyles, Re [1911] 1 Ch 179 …. 20.2, 20.29 Hub Capital Pty Ltd v Challock Pty Ltd [1999] 2 Qd R 588 …. 4.69 Huber v Steiner (1835) 2 Bing NC 202; 132 ER 80 …. 7.24

xxxiv



Table of Cases

Huddart Parker Ltd v The Ship ‘Mill Hill’ (1950) 81 CLR 502 …. 4.17 Hughes v Oxenham [1913] 1 Ch 254 …. 2.85 Hui v Esposito Holdings Pty Ltd [2017] FCA 648 …. 6.32 Hulse v Chambers [2002] 1 All ER (Comm) 812 …. 7.41 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 …. 19.16 Hunt v BP Exploration Co (Libya) Ltd (1980) 144 CLR 565 …. 5.48 — v — [1980] 1 NZLR 104 …. 5.51 — v — [1981] 1 NZLR 209 …. 5.49 Hunter Grain Pty Ltd v Hyundai Merchant Marine Co Ltd (1993) 117 ALR 507 …. 18.12 Huntingdale Village Pty Ltd (recs & mgrs apptd) v Corrs Chambers Westgarth (a firm) (No 3) [2016] WASC 366 …. 12.11 Huntington v Attrill [1893] AC 150 …. 7.20, 8.40, 8.41 Hussain v Hussain [1983] Fam 26 …. 13.16 Hutchinson v Bank of Scotland plc [2012] QSC 28 …. 19.20 Hutter v Hutter [1944] P 95 …. 13.39 HWC v The Corp of the Synod and Diocese of Brisbane (2008) 220 FLR 92; [2008] QSC 212 …. 7.49 Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130 …. 13.6, 13.7, 13.11, 13.14, 13.20, 13.27, 13.56 Hyland v Hyland (1971) 18 FLR 461 …. 10.25, 10.27

I

Igra v Igra [1951] P 404 …. 8.63, 14.47 Ikimi v Ikimi [2002] Fam 72 …. 10.55 Imam Din v National Assistance Board [1967] 2 QB 213 …. 13.4, 13.19 IMC Aviation Solutions Pty Ltd v Altain Khuder LLC (2011) 282 ALR 717; [2011] VSCA 248 …. 6.28 Incapable Person FCC, Re an alleged & the Protected Estates Act 1983 (1990) 19 NSWLR 541 …. 5.71, 5.72 Incitec Ltd v Alkimos Shipping Corp (2004) 138 FCR 496; [2004] FCA 698 …. 4.21, 4.25



Independent Insurance Co, Re [2005] NSWSC 587 …. 24.23 Independent Trustee Services Ltd v Morris (2010) 79 NSWLR 425; [2010] NSWSC 1218 …. 5.19, 5.24 Indian Chief, The (1801) 3 C Rob 12; 165 ER 367 …. 10.17 Indian Farmers Fertiliser Cooperative Ltd v Gutnick [2015] VSC 724 …. 6.38 Indyka v Indyka [1969] 1 AC 33 …. 14.32, 14.36, 14.41 Inglis v Commonwealth Trading Bank (1972) 20 FLR 30 …. 3.3 — v Robertson [1898] AC 616 …. 21.11 Inland Revenue Commissioners v Bullock [1976] 3 All ER 353 …. 10.25 — v Duchess of Portland [1982] Ch 314 …. 10.30 — v Stype Investments (Jersey) Ltd [1982] 1 Ch 456 …. 22.7, 22.13 Innovia Films Ltd v Frito-Lay North America, Inc [2012] EWHC 790 …. 19.7 Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16 …. 12.9, 12.11, 12.13, 12.16, 12.22, 18.30, 18.45 Intermetal Group Ltd v Worslade Trading Ltd [1998] 2 IR 1 …. 4.38 International Awards Group LLC Asian Advertising Festival (Spikes) Asia Pty Ltd (No 1) (2016) 120 IPR 473; [2016] FCA 617 …. 2.79 International Movie Group Inc & Movie Group Inc v Palace Entertainment Corporation Pty Ltd (1995) 128 FLR 458 …. 6.33 International Relief and Development Inc v Nadu [2014] FCA 887 …. 6.32 International Tank & Pipe SAK v Kuwait Aviation Fuelling Co KSC [1975] QB 224 …. 6.20 Isaac Penhas v Tong Soo Eng [1953] AC 304 …. 13.26 Islamic Republic of Iran v Barakat Galleries Ltd [2009] QB 22 …. 8.56 — v Berend [2007] EWHC 132 …. 8.20, 21.17 Israel Discount Bank v Hadjipateras [1983] 3 All ER 129 …. 5.27, 5.35 ISS Machinery Services Ltd v Aeolian Shipping SA [2001] 2 Lloyd’s Rep 641 …. 17.26

xxxv



Private International Law in Australia

Istvan v Istvan SC (Vic), Lush J, 29 October 1982, unreported …. 18.35 lpole v Canadian Nor rn Railways Co [1923] AC 113 …. 18.47 Ivanishvili v Credit Suisse AG [2018] NZHC 1755 …. 19.18

J

J (A Minor) (Abduction), Re [1990] 2 AC 562 …. 10.63, 10.64, 10.74, 15.31 J v C [1970] AC 668 …. 15.61 Jabbour v Custodian of Absentee’s Property of State of Israel [1954] 1 All ER 145 …. 20.10 Jablonowski v Jablonowski (1972) 28 DLR (3d) 440 …. 10.29 Jackson v TCN Channel 9 Pty Ltd [2002] NSWSC 1229 …. 7.40 Jacobs v Australian Abrasives Pty Ltd [1971] Tas SR 92 …. 2.68 — v Beaver (1908) 17 Ont LR 496 …. 5.29 Jacobs, Marcus & Co v Crédit Lyonnais (1884) 12 QBD 589…. 17.34, 17.42 Jaffer v Williams (1908) 25 TLR 12 …. 5.19 Jahwar v Betta Livestock 17 [2001] 4 IR 42 …. 4.38 Jakstas v Jakstas [1957] QWN 17 …. 10.56 James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353 …. 4.75, 4.76 James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583 …. 6.21, 17.8, 17.18, 17.19 Jamieson v Commissioner for Internal Revenue (2007) 210 FLR 210; [2007] NSWSC 324 …. 8.47, 10.25 — v Robb (1881) 7 VLR 170 …. 5.32 Jaroszonek v Jaroszonek [1962] SASR 157 …. 13.30 Jarvis Conklin Mortgage Co, Re (1895) 11 TLR 373 …. 24.28 Jasmit and Jasmit [2014] FCCA 972 …. 14.8 Jausnik v Nominal Defendant (No 5) (2016) 316 FLR 359; [2016] ACTSC 306 …. 18.40 Jeannot v Furst (1909) 25 TLR 424 …. 5.22 Jebsens International (Australia) Pty Ltd v Interfert Australia Pty Ltd (2012) 112 SASR 297; [2012] SASC 50 …. 6.13

Jenton Overseas Investment Pte Ltd v Townsing (2008) 221 FLR 398; [2008] VSC 470 …. 5.34, 5.67, 8.58 Jet Holdings Inc v Patel [1990] QB 335 …. 5.28 JH Rayner (Mincing Lane) Ltd v Dept of Trade and Industry [1989] Ch 72 …. 3.13, 3.15 — v — [1990] 2 AC 418 …. 23.20 JLM v Director-General NSW Dept of Community Services (2001) 22(4) Leg Rep SL4a …. 15.48, 15.50 John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd (No 2) [2015] NSWSC 564 …. 4.28 John Kaldor Fabricmaker Pty Ltd v Mitchell Cotts Freight (Aust) Pty Ltd (1989) 18 NSWLR 172 …. 17.12, 17.14, 17.48 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 …. 1.25, 1.29, 1.30, 7.13, 7.14, 7.26, 7.27, 7.28, 7.30, 7.31, 7.33, 7.38, 7.39, 7.43, 11.3, 11.12, 11.13, 11.14, 11.15, 11.16, 11.17, 11.18, 11.19, 11.27, 11.28, 17.31, 17.42, 18.2, 18.4, 18.10, 18.11, 18.20, 18.28, 18.33, 18.35, 19.15, 23.21 John Russell and Co Ltd v Cayzer, Irvine and Co Ltd [1916] 2 AC 298 …. 2.6 John Sanderson and Co (NSW) Pty Ltd v Giddings [1976] VR 421 …. 2.10 Johnson, Re [1903] 1 Ch 821 …. 8.33 Johnson v Billyard (1890) 11 LR (NSW) 319 …. 21.4, 21.7 Johnson Matthey & Wallace Ltd v Ahmad Alloush (1984) 135 NLJ 1012 …. 7.36 Johnstone v Commonwealth (1979) 143 CLR 398 …. 2.22 Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270 …. 3.26 Joyce v Joyce [1979] Fam 93 …. 14.46 Joye v Sheahan (1996) 62 FCR 417 …. 2.8, 2.9 JP Morgan Chase Bank NA v PT Indah Kiat Pulp and Paper Corp [2012] NSWSC 1279 …. 5.22 JSC BTA Bank v Ablyazov [2011] EWHC 202 (Comm) …. 8.56 Judd v Judd (1958) 75 WN (NSW) 147 …. 10.56

xxxvi



Table of Cases

Julia Farr Services Inc v Hayes (2003) 25 NSWCCR 138; [2003] NSWCA 37 …. 7.28, 7.52 Jupiter (No 3), The [1927] P 122 …. 8.49, 20.9 Jupiter (No 3), The [1927] P 250 …. 20.9

K

K (A Child) (Reunite International Child Abduction Centre Intervening), Re [2014] AC 1401; [2014] UKSC 29 …. 15.40 Kadam v MiiResorts Group 1 Pty Ltd (No 4) [2017] FCA 114 …. 9.22 Kahler v Midland Bank Ltd [1950] AC 24 …. 17.4, 17.34, 17.38 Kanoria v Guinness [2006] 1 Lloyd’s Rep 701 …. 6.32 Kapila, In the matter of Edelsten [2014] FCA 1112 …. 24.9 Kapur v Kapur [1984] FLR 920 …. 10.63 Karim v Khalid (2007) 38 Fam LR 300; [2007] FamCA 1287 …. 15.27 Kaufman, Goods of [1952] P 325 …. 22.12 Kaufman v Gerson [1904] 1 KB 591 …. 8.64 Kay’s Leasing Corp Pty Ltd v Fletcher (1964) 116 CLR 124 …. 12.13, 17.11 Kazemi Estate v Islamic Republic of Iran [2014] 3 SCR 176 …. 3.26 KBRV Resort Operations Pty Ltd v Chilcott (2001) 51 NSWLR 516; [2001] NSWCA 116 …. 7.48 Keele v Findley (1990) 21 NSWLR 444 …. 5.29, 5.30 Keen & Scofield [2013] FCCA 540 …. 16.8 Keen Corp v Caldwell 840 SW 2d 715 (1992) …. 1.34 Keenco v South Australia and Territory Air Service Ltd (1974) 8 SASR 216 …. 5.15 Kehr, Re [1952] Ch 26 …. 22.15 Kelly v Panayiotou [1980] 1 NSWLR 15 …. 15.18 — v Selwyn [1905] 2 Ch 117 …. 17.3, 21.32, 21.33, 21.34 Kemeny v Kemeny (1998) 23 Fam LR 105; FLC 92-806; [1998] FamCA 34…. 14.8, 16.16 Kemp v Piper [1971] SASR 25 …. 18.4 Kendall v Kendall [1977] Fam 208 …. 14.45, 14.48



Kennedy v Wallace (2004) 142 FCR 185; [2004] FCAFC 337 …. 7.34 Kennion v Buchan’s Trustees (1880) 7 R 570 …. 22.50 Kent v Paterson-Brown [2018] EWHC 2008 …. 19.18 Kent & Kent [2017] FamCA 21 …. 16.8 Kent & Kent [2017] FamCAFC 157 …. 16.7 Kertesz v Kertesz [1954] VLR 195 …. 10.22 Khademollah, Marriage of (2000) 159 FLR 42; [2000] FamCA 1045 …. 14.8 Khan v Khan [1963] VR 203 …. 13.16, 13.20 Khan’s Settlement, Re [1966] Ch 567 …. 22.53 Kilah v Director-General, Dept of Community Services (2008) 39 Fam LR 431; [2008] FamCAFC 81 …. 10.67 Kilgour v Kilgour 1987 SLT 568 …. 15.39 Kim v Minister for Immigration and Border Protection [2016] FCA 959 …. 10.37 Kim Michael Productions Pty Ltd v Tropical Islands Management Ltd [2010] NSWSC 269 …. 9.2 King v Brandywine Reinsurance Co (UK) Ltd [2004] 2 Lloyd’s Rep 670 …. 17.24 — v — [2005] 1 Lloyd’s Rep 655 …. 17.24 — v Lewis [2004] EWHC 168 …. 2.71 King of Spain v Machado (1827) 4 Russ 225; 38 ER 790 …. 9.1 Kingston’s (Duchess of) case [1775–1802] All ER Rep 623 …. 5.26 Kingston Futures Pty Ltd v Waterhouse [2012] QSC 212 …. 9.10 Kingsway General Insurance Co v Canada Life Insurance Co (2001) 149 OAC 303 …. 18.41 Kirkby & Kirkby [2017] FamCA 884 …. 13.52 KK Sony Computer Entertainment v Van Veen (2006) 71 IPR 179 …. 3.5 Kloebe, Re (1884) 28 Ch D 175 …. 22.15 KM (A Minor) (Habitual Residence), Re [1996] 2 FCR 333 …. 10.69 Knight v Adventure Associates Pty Ltd [1999] NSWSC 861 …. 4.26 Knowles (dec’d), Re [1995] 2 NZLR 377 …. 20.30, 20.32 Kochanski v Kochanska [1958] P 147 …. 13.30 Kodak (Australasia) Pty Ltd v Commonwealth (1989) 98 ALR 424 …. 2.30

xxxvii



Private International Law in Australia

Kok v Resorts World at Sentosa Pte Ltd [2017] WASCA 150 …. 5.34, 8.58, 8.64 — v Sheppard [2009] NSWSC 1262 …. 18.27 Kolchmann v Meurice [1903] 1 KB 534 …. 2.85 Konamaneni v Rolls-Royce Industrial Power (India) Ltd [2002] 1 WLR 1269 …. 23.21, 23.22 Kontis v Barlin (1993) 115 ACTR 11 …. 4.79 Koop v Bebb (1951) 84 CLR 629 …. 7.11, 9.30, 12.4, 18.11 Korea Resolution and Collections Corp v Lee [2013] NZHC 985 …. 5.15, 5.19 Korner v Witzkowitzer [1950] 2 KB 128 …. 7.31 Korvine’s Trust, Re [1921] 1 Ch 343 …. 7.18 Kreet & Sampir (2011) 44 Fam LR 405; [2011] FamCA 22 …. 13.42, 13.52 Kuan & Toh [2016] FamCAFC 115 …. 15.27 Kuklycz v Kuklycz [1972] VR 50 …. 13.26, 13.27, 13.28, 13.29 Kuwait Airways Corp v Iraqi Airways Co [1995] 3 All ER 694 …. 3.16, 3.18, 8.67 — v — (No 3) [2001] 1 Lloyd’s Rep 161 …. 8.68 — v — (Nos 4 and 5) [2002] 2 AC 883; [2002] 3 All ER 209 …. 1.4, 8.57, 8.60, 8.66, 8.68, 18.28, 18.42 Kuwait Oil Tanker Co SAK v Qabazard [2003] 3 All ER 501 …. 20.10, 21.28 Kwok Chi Leung Karl v Commissioner of Estate Duty [1988] 1 WLR 1035 …. 20.10

L

L, Re [1999] 1 Fam LR 433 …. 15.42 La Donna Pty Ltd v Wolford AG (2005) 194 FLR 26; [2005] VSC 359 …. 6.14 Labuda v Langford [2001] ACTSC 126 …. 7.43, 7.45 Lahoud v The Democratic Republic of Congo [2017] FCA 92 …. 6.40 Lai v Huang [2016] NZHC 2828 …. 22.34 Laker Airways v Sabena, Belgian World Airlines 731 F 2d 909 (1984) …. 4.89 Lambe, In the Will of [1972] 2 NSWLR 273…. 5.71 Lambert Leasing Inc v QBE Insurance Australia Ltd [2012] NSWSC 953 …. 9.10

— v QBE Insurance Ltd [2016] NSWCA 254 …. 7.34 Lan & Hao [2016] FamCA 670 …. 16.4, 16.6, 16.8 Landon & Yin [2016] FamCA 1068 …. 13.4 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 …. 1.25, 11.12 Lao & Yeng [2018] FamCA 560 …. 15.8 Lapsley v Grierson (1845) 8 D 34 …. 13.8 Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd (2011) 279 ALR 772; [2011] NSWSC 268 …. 6.5 Laurie v Carroll (1958) 98 CLR 310 …. 1.6, 2.3, 2.7, 2.8, 2.9, 2.10, 2.16, 11.1 Law v Gustin [1976] Fam 155 …. 14.32 Law Debenture Trust Corp plc, The v Ukraine [2017] EWHC 655 …. 8.69 Lawrence v Lawrence [1985] Fam 106 …. 13.33, 13.34, 13.35, 13.55 Lawson v Serco Ltd [2006] 1 All ER 823 …. 12.9, 12.15 Lazard Brothers & Co v Midland Bank Ltd [1933] AC 289 …. 23.17, 23.18 Lazarewicz v Lazarewicz [1962] P 171 …. 13.8, 13.29 Lazarus v Deutsche Lufthansa AG [1985] 1 NSWLR 188 …. 9.2 Lee v Abdy (1886) 17 QBD 309 …. 21.26, 21.27 — v Lau [1967] P 14 …. 7.20, 13.16, 13.17, 13.18 Legend International Holdings Inc (as debtor in possession of the assets of Legend International Holdings Inc) v Legend International Holdings Inc [2016] VSC 308 …. 24.8, 24.12, 24.23 Leighton International Ltd v Hodge [2011] NSWSC 1381 …. 9.20 Lenders v Anderson (1883) 12 QBD 50 …. 2.48 Lendrum v Chakravarti 1929 SC 96 …. 13.38 Lengyel v Rasad (No 2) [1990] FLC 92-154 …. 13.43 Leon v Numkena 689 P 2d 566 (1984) …. 1.34 Lepre v Lepre [1965] P 52 …. 14.48 Leroux v Brown (1852) 12 CB 801; 138 ER 1119 …. 7.20, 7.35

xxxviii



Table of Cases

Lethbridge v Lethbridge (1902) 19 WN (NSW) 128 …. 10.58 Levick’s Will Trusts, Re [1963] 1 All ER 95 …. 22.40 Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320 …. 2.43, 2.52, 2.76, 2.80 Lewal’s Settlement Trusts, Re [1918] 2 Ch 391 …. 22.38, 22.52, 22.54 Lewincamp v ACP Magazines Ltd [2008] ACTSC 69 …. 7.40 Lewis v Baldwin (1848) 11 Beav 153; 50 ER 775 …. 23.14 — v Balshaw (1935) 54 CLR 188 (1935) 54 CLR 188 …. 22.8, 22.9, 22.10, 22.12 Lewis Construction Co Pty Ltd v M Tichauer SA [1966] VR 341 …. 2.53, 2.58, 2.68 LFDB v SM [2015] FCA 725 …. 5.77 — v — (No 3) [2017] FCAFC 178 …. 5.77, 16.16 Lhoneux, Limon & Co v Hong Kong & Shanghai Banking Corp (1886) 33 Ch D 446 …. 2.16 Li v Zhou (2014) 310 ALR 66; [2014] NSWCA 176 …. 3.26 Li Lian Tan v Durham and General Accident & Life Assurance Corp Ltd [1966] SASR 143 …. 7.17, 7.19, 18.36 Liaoning Zhongwang Group Co Ltd v Alfield Group Pty Ltd [2017] FCA 1223 …. 6.31, 9.3, 9.4 Libyan Arab Foreign Bank v Bankers Trust Co [1989] QB 728 …. 8.3, 17.25 Lieu & Antcliff [2016] FamCA 942 …. 13.52 Lifestyle Investment Group v Coral Investments Securities Ltd [2016] NZHC 2262 …. 4.56, 19.5 Liftronic Pty Ltd v Montgomery Elevator Co [1996] ATPR 41–458 …. 2.79 Lightning v Lightning Electrical Contractors [1998] NPC 71 …. 19.27 Limerick, Countess of v Earl of Limerick (1863) 4 Sw & Tr (Supp) 252; 164 ER 1512 …. 9.12 Lin & Nicoll [2016] FamCA 401 …. 13.26, 13.28 Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 …. 5.22 Linter Group Ltd (in liq) v Price Waterhouse (1992) 2 ACSR 346 …. 4.69

Lipohar v R (1999) 200 CLR 485; [1999] HCA 65 …. 11.20 Lister v McAnulty [1944] 3 DLR 673 …. 18.37 Littauer Glove Corp v FW Millington (1920) Ltd (1928) 44 TLR 746 …. 5.13 Liu v Ma [2017] VSC 810 …. 5.19 LK v Director-General, Dept of Community Services (2009) 237 CLR 582; [2009] HCA 9 …. 10.63, 10.64, 10.67, 10.68, 10.69, 10.74, 15.12, 15.31, 15.40 LKT Industrial Berhad (Malaysia) v Chun [2004] NSWSC 820 …. 6.32 Lloyd v Guibert (1865) LR 1 QB 115 …. 17.17 — v Lloyd [1962] VR 70 …. 10.8 Lodge v Lodge (1963) 107 Sol Jo 437 …. 13.23 Lord Advocate v Jaffey [1921] 1 AC 147 …. 10.20 Lord Cable, Re [1977] 1 WLR 7 …. 22.16 Lord Cranstown v Johnstown (1796) 3 Ves 170; 30 ER 952 …. 3.9 Lorentzen v Lydden & Co Ltd [1942] 2 KB 202 …. 8.49, 8.50, 8.59 Lorillard, Re [1922] 2 Ch 638 …. 22.14, 22.15, 22.16 Lough Neagh Exploration Ltd v Morrice [1999] NICA 8 …. 4.33 Loutchansky v Times Newspapers Ltd [2002] QB 783 …. 2.71 Lowenthal v Attorney-General [1948] 1 All ER 1 All ER 295 …. 10.51 LR Avionics Technologies Ltd v The Federal Republic of Nigeria [2016] EWHC 8 …. 3.27 Lubbe v Cape Plc [2000] 2 All ER 986 …. 4.35 Lucasfilm Ltd v Ainsworth [2012] 1 AC 208 …. 3.5 Luke v Lyde (1759) 2 Burr 882; 97 ER 614 …. 1.19 — v Mayoh (1921) 29 CLR 435 …. 2.25 Lundgren v O’Brien (No 2) [1921] VLR 361 …. 13.40

M

M v L [2017] SASC 39 …. 16.12 — v L (Financial Relief after Overseas Divorce) [2003] EWHC 328 …. 16.14

xxxix





Private International Law in Australia

McCabe v McCabe [1994] 1 FLR 410 …. 13.23 McDonald v Director-General, Dept of Community Services (2006) 36 Fam LR 468; [2006] FamCA 1400 …. 15.48 Macdonald v Macdonald 1932 SC (HL) 79 …. 20.3, 20.24 McDougall v Occidental Syndicate Ltd (1912) 4 DLR 727 …. 5.29 McElroy v McAllister 1949 SC 110 …. 8.20, 18.7 McEntee v Connor (1994) 4 Tas R 18 …. 4.69, 4.75 McGrath as Liquidators of HIH Insurance Ltd, Re [2008] NSWSC 881 …. 24.22 MacGregor v Application des Gaz [1976] Qd R 175 …. 2.68 McGregor v Potts (2005) 68 NSWLR 109; [2005] NSWSC 1098 …. 7.40, 18.25 McIntyre v Eastern Prosperity Investments Pte Ltd (No 6) (2005) 218 ALR 401; [2005] FCA 155 …. 23.17 McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 …. 1.25, 1.29, 7.24, 7.25, 7.26, 7.28, 7.47, 7.48, 11.1, 11.10, 11.11, 11.12 McKee v McKee [1951] AC 352 …. 15.69 McKelvey v Meagher (1906) 4 CLR 265 …. 9.10 Mackender v Feldia AG [1967] 2 QB 590 …. 17.33 McLaughlin, Re [1922] P 235 …. 12.11 McM v C (1980) 5 Fam LR 650 …. 15.18 MacMillan v MacMillan [1989] SLT 350 …. 15.42, 15.51, 15.56 Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [1995] 3 All ER 747; [1995] 1 WLR 978 …. 8.20, 19.5, 21.17 — v — [1996] 1 All ER 585; [1996] 1 WLR 387 …. 7.13, 7.14, 7.20, 7.23, 8.3, 19.27, 21.11, 21.31 McMorran, Re [1958] Ch 624 …. 22.42, 22.54 McOwan, Marriage of (1993) 17 Fam LR 377 …. 15.44 Macquarie Bank Ltd v Juno Holdings S.a.r.l. [2015] NSWSC 1260 …. 5.8 Madden International Ltd v Lew Footwear Holdings Pty Ltd (2015) 50 VR 22; [2015] VSCA 90 …. 2.43 Magnin v Creevey [2017] NSWSC 375 …. 9.2

Mahadervan v Mahadervan [1964] P 233 …. 7.33 Maiden Civil (P & E) Pty Ltd, Re [2013] NSWSC 852 …. 21.15 Maider and Carrigan [2008] FamCA 862 …. 14.21 Malaysia-Singapore Airlines Ltd v Parker [1972] 3 SASR 300 …. 5.20, 5.43 Maldonado, In the Estate of [1954] P 223 …. 7.23 Male v Roberts (1800) 3 Esp 163; 170 ER 574 …. 17.29 Malicorp v Government of the Arab Republic of Egypt [2015] EWHC 361 (Comm) …. 6.32 Manifold [1962] Ch 1, Re …. 22.10, 22.16 Manolopoulos v Pnaiffe [1930] 2 DLR 169 …. 5.29 Maples v Maples [1988] Fam 14 …. 5.61 Maraver, Goods of (1828) 1 Hagg Ecc 498; 162 ER 658 …. 22.38 Marett, Re (1887) 36 ChD 400 …. 10.30 Maritime Insurance Co Ltd v Geelong Harbour Trust Commissioners (1908) 6 CLR 194 …. 4.33, 4.39, 4.41, 4.46 Mark v Mark [2005] UKHL 42; [2006] 1 AC 98; [2005] 3 All ER 912 …. 1.5, 10.1, 10.3, 10.4, 10.7, 10.25, 10.29, 10.55, 10.60, 10.63, 15.31 Marks v Australia and New Zealand Banking Group Ltd [2014] QCA 102 …. 5.56, 5.57 — v National and General Insurance Co Ltd [1993] ACTSC 84 …. 5.69 Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223 …. 2.4, 2.16 Marsh & Marsh [2014] FCCA 132 …. 16.9 Marshall v Fleming [2013] NSWSC 566 …. 9.19 — v — [2014] NSWCA 64 …. 9.18, 9.19, 9.21 — v — [2017] NSWSC 1107 …. 9.19 — v Houghton [1923] 2 WWR 553 …. 5.19 Martin, Re [1900] P 211 …. 7.20 Martin, Re; Loustalan v Loustalan [1900] P 211 …. 22.47 Martin v Kelly (1995) 22 MVR 115 …. 7.24 Martyn v Graham [2003] QDC 447 …. 5.17 xl



Table of Cases

Maschmann v Wenzel [2007] NSWSC 850 …. 5.66 Mastaka v Midland Bank Executor & Trustee Co Ltd [1941] Ch 192 …. 22.48 Mather v Mahoney [1968] 3 All ER 223 …. 14.41 Mauritius Commercial Bank Ltd v Hestia Holdings Ltd [2013] EWHC 1328; [2013] 2 All ER 898 …. 4.30, 17.23 Maxwell v Murphy (1957) 96 CLR 261 …. 7.47 Mayfield v Mayfield [1969] P 119 …. 14.32 Meatyard, Goods of [1903] P 125 …. 22.9, 22.10 Meckiff v Simpson [1968] VR 62 …. 9.30 Medapati & Revanka (No 2) [2017] FamCA 319 …. 16.4, 16.6, 16.8 Mégret, Re [1901] 1 Ch 547 …. 22.53 Mendelson-Zeller Co Inc v T & C Providores Pty Ltd [1981] 1 NSWLR 366 …. 17.15, 17.16 Mendikwae Ltd v Mezin [2000] QSC 56 …. 5.22 Mengel’s Will Trusts, Re [1962] Ch 791 …. 22.28, 22.43 Mercantile Mutual Insurance (Australia) Ltd v Neilson (2004) 28 WAR 206; [2004] WASCA 60 …. 8.23 Mercedes Benz AG v Leiduck [1996] AC 284 …. 2.5 Merker v Merker [1963] P 283 …. 13.29, 14.35, 14.42 Merrick & Wellington [2014] FamCA 514 …. 15.8 Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd (1933) 48 CLR 565 …. 11.4, 11.5, 11.6, 11.11, 11.12, 11.14, 11.15, 17.13, 17.14, 17.16, 21.7 Messina v Smith [1971] P 322 …. 14.41 Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 …. 2.66, 2.67, 2.77, 18.10 Mewett v Commonwealth (1998) 191 CLR 471 …. 11.17 Meyer, Re [1971] P 298 …. 8.63, 14.48 Meyer v Dresser (1864) 16 CB (NS) 646 …. 7.46 Mhambrey and Vairaja [2018] FamCAFC 120 …. 10.68, 10.69, 10.70

Micallef, Estate of [1977] 2 NSWLR 929 …. 22.33 Michael Wilson & Partners Ltd v Nicholls (2008) 74 NSWLR 218; [2008] NSWSC 1230 …. 7.34, 9.23 — v — (2011) 244 CLR 427; [2011] HCA 48 …. 19.6 Midland Montagu Australia Ltd v O’Connor (1992) 2 NTLR 86 …. 4.69 Milder v Milder [1959] VR 95 …. 13.30 Milkovich v Saari 203 NW 2d 408 (1973) …. 1.31 Miller, Re; Bailie v Miller [1914] 1 Ch 511 …. 22.26, 22.27 Miller v Teale (1954) 92 CLR 406 …. 10.20, 13.38, 13.40 Miller and Caddy, In the Marriage of (1980) 10 Fam LR 858 …. 16.16 Miller and Caddy, In the Marriage of (1985) FLC 91-625 …. 14.26 Mills v Mills (1938) 60 CLR 150 …. 23.12, 23.13, 23.14 Mineracoes Brasilieras Reunidas v EF Marine SA (The Freights Queen) [1977] Lloyd’s Rep 140 …. 17.46 Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 16) [2017] WASC 340 …. 7.29, 12.35 Minister for Immigration, Local Government and Ethnic Affairs v Gugerli (1992) 36 FCR 68 …. 10.43 Minmetals Germany GmbH v Ferco Steel Ltd [1999] 1 All ER (Comm) 315 …. 6.32 Mitchner, Re [1922] St R Qd 252 …. 22.41 Mitford v Mitford [1923] P 130 …. 14.42 Mitsubishi Motors Corp v Soler ChryslerPlymouth, Inc (1985) 473 US 614 …. 6.5 Mobil Oil Australia Pty Ltd v State of Victoria (2002) 211 CLR 1; [2002] HCA 27 …. 2.8, 2.9, 12.4 Mobi-Light Inc v KK Machinery Pty Ltd [2010] WADC 105 …. 5.22, 5.29 Mohamed v Knott [1969] 1 QB 1 …. 7.22 Monaco v Monaco (1937) 157 LT 231 …. 15.70 Monash IVF Pty Ltd v Burmeister (No 2) [2017] NSW 903 …. 4.74 Monde Petroleum SA v Westernzagros Ltd [2015] EWHC 67 …. 6.14 xli





Private International Law in Australia

Moore, as Debtor-in-Possession of Australian Equity Investors [2012] FCA 1002 …. 24.8, 24.9 Morguard Investments v De Savoye [1990] 3 SCR 1077 …. 5.21 Morin v Bonhams & Brooks Ltd [2003] 2 All ER (Comm) 36 …. 2.41, 2.75 Morton v Morton [2008] FamCA 854 …. 16.7 Moses v Stephenson (1981) 10 NTR 32 …. 15.18 Mostyn v Fabrigas (1775) 1 Coup 161; 98 ER 1021 …. 1.20, 1.22 Moti v R (2011) 245 CLR 456; [2011] HCA 50 …. 3.5 Mount Albert Borough Council v Australasian Temperance & General Mutual Life Assurance Society [1938] AC 224 …. 12.24, 17.8, 17.15, 17.34, 20.14 Mountbatten v Mountbatten [1959] P 43 …. 14.41 MRA v NRK 2011 SLT 873 …. 13.23 Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd [1990] WAR 531 …. 4.69 Mulugeta Guadie Mengiste v Endowment Fund for the Rehabilitation of Tigray [2017] EWCA Civ 1326 …. 5.33 Munroe v Douglas (1820) 5 Madd 379; ER 940 …. 10.17 Munsie v Munsie [2012] NSWSC 479 …. 7.40 Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7 …. 2.60, 9.2, 19.6, 19.8, 19.9, 19.10, 19.14, 19.15, 19.17, 19.27, 20.1 Murakami Takako (Executrix of Estate of Takashi Murakami Suroso, decd) v Wiryadi Louise Maria [2008] SGCA 44 …. 19.2, 19.5 Murphy v Deichler [1909] AC 446 …. 22.50 Murray v Champernowne [1901] 2 IR 232 …. 22.53 Murray and Tam, Marriage of; Director, Family Services (ACT) (Intervener) (1993) 16 Fam LR 982 …. 15.40, 15.46, 15.55 Musgrave v Commonwealth (1937) 57 CLR 514 …. 2.21 Mustafa, In the Marriage of (1981) 7 Fam LR 711; FLC 91-112 …. 8.41, 13.40, 14.28 Mutch v Dalley [1923] St R Qd 138 …. 2.15

Muusers v State Government Insurance Office (Qld) [1980] 2 NSWLR 73 …. 2.83 MW v Director-General, Dept of Community Services (2008) 244 ALR 205; [2008] HCA 12 …. 15.40 My v Toyota Motor Co [1977] 2 NZLR 113 …. 2.68 Mynott v Barnard (1939) 62 CLR 68 …. 7.17, 12.19, 12.20, 17.12

N

N, Re [2000] 2 FCR 512 …. 15.40 N v N [2000] 3 FCR 84 …. 10.63, 10.69 Nabi v Heaton (Inspector of Taxes) [1981] 1 WLR 1052 …. 13.4, 13.19 Nachimson v Nachimson [1930] P 217 …. 13.9 Nalpantidis v Stark (No 2) (1996) 65 SASR 454 …. 7.24, 18.4 Napiat Pty Ltd v Salfinger (No 7) (2011) 202 FCR 264; [2011] FCA 1322 …. 10.57 National Australia Bank Ltd v Dessau [1988] VR 521 …. 19.16 National Bank of Greece and Athens v Metliss [1958] AC 509 …. 1.31, 7.19 National Commercial Bank v Wimborne (1978) 5 BPR 11,958 …. 19.5, 19.6, 19.11, 19.15 — v — (1979) 11 NSWLR 156 …. 2.4, 2.11, 2.16 National Mutual Holdings Pty Ltd v Sentry Corp (1989) 22 FCR 209 …. 4.87, 9.28 National Westminster Bank v UtrechtAmerica Finance Co [2001] 2 All ER (Comm) 7 …. 4.90 Navarro and Jurado (2010) 44 Fam LR 310; [2010] FamCAFC 210 …. 14.8 Naviera Amazonica Peruana SA v Compania Internacional de Seguros del Peru [1988] 1 Lloyd’s Rep 116 …. 6.21 Naylor v Kilham [1999] VUSC 11 …. 4.47 Nehemiah v Athletics Congress of the USA 765 F 2d 42 (1985) …. 2.9 Neilson v Overseas Projects Corp (Vic) Ltd (2005) 223 CLR 331; [2005] HCA 54 …. 1.26, 1.29, 1.30, 1.35, 7.40, 7.49, 8.16, 8.17, 8.20, 8.21, 8.22, 8.23, 8.24, 8.26, 8.27, 8.30, 8.31, 8.32, 8.34, 9.1, 9.6, 9.7, 9.8, 9.28, 17.5, 18.4, 18.5, 18.7, 18.8, 18.9 xlii



Table of Cases

— v Overseas Projects Corporation of Victoria Ltd [2002] WASC 231 …. 8.23 Nelson v Bridport (1846) 8 Beav 547; 50 ER 215 …. 20.24, 21.5 Nelson & Nelson [2016] FamCA 516 …. 13.52 Nevill & Nevill [2016] FamCAFC 41 …. 16.10 New Brunswick Railway Co v British & French Trust Corp [1939] AC 1 …. 17.4 New Cap Reinsurance Corp Holdings Ltd, Re (1999) 32 ACSR 234; [1999] NSWSC 536 …. 24.25 New Cap Reinsurance Corp Ltd v AE Grant (2009) 257 ALR 740; [2009] NSWSC 662 …. 24.24 New York Breweries Co v Attorney-General [1899] AC 62 …. 22.7 New Zealand Basing Ltd v Brown [2017] 2 NZLR 93 …. 17.10 Newbeld & Newbeld [2007] FamCA 1483 …. 16.20 Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 …. 20.16 Newmarch v Newmarch [1978] Fam 79 …. 14.46 News Corp Ltd v Lenfest Communications Inc (1996) 21 ACSR 553 …. 4.49 Nicholls v Michael Wilson & Partners Ltd (2010) 243 FLR 177; [2010] NSWCA 222 …. 19.6, 19.8, 19.15, 23.15 Nicola v Ideal Image Development Corp Inc (2009) 215 FCR 76; 261 ALR 1; [2009] FCA 1177 …. 4.25, 6.5, 6.6 Nissan v Attorney-General [1970] AC 179 …. 3.9 Nolan v Borger 203 NE 2d 274 (1963) …. 8.19 — v Minister for Immigration & Ethnic Affairs (1988) 165 CLR 178 …. 1.6, 10.49 Nominal Defendant v Bagot’s Executor & Trustee Co Ltd [1971] SASR 346 …. 7.19, 18.38 — v Motor Vehicle Insurance Trust (WA) (1983) 50 ALR 511 …. 2.50 Norfolk Island Shipping Line Co, Re (1988) 6 ACLC 990 …. 24.25, 24.28 Norman v Norman (No 2) (1968) 12 FLR 39 …. 5.29



— v — (No 3) (1969) 16 FLR 231 …. 10.56, 10.58, 14.21, 14.44, 14.49 Norris, Re (1888) 4 TLR 452 …. 10.61 Nottebohm Case (Second Phase) (Liechtenstein v Guatemala) [1955] ICJ Rep 4 …. 10.32 Nouvion v Freeman (1889) 15 App Cas 1 …. 5.22 Novasonic Corp Ltd v Hagenmeyer (A/Asia) BV (1983) 8 ACLR 303 …. 2.30 Nudd v Taylor [2000] QSC 344 …. 2.4, 3.9 Nugent v Vetzera (1866) LR 2 Eq 704 …. 15.70 Nygh and Casey [2010] FamCA 145 …. 13.30

O

Oates v Consolidated Capital Services Ltd (2008) 66 ACSR 277; [2008] NSWSC 464 …. 23.21 Ocean Marine Insurance Co Ltd v CSR Ltd [2012] NSWSC 1229 …. 20.12, 21.26, 21.28 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 …. 1.26, 1.29, 2.41, 4.14, 4.17, 4.39, 4.42, 7.20, 17.14, 17.28, 17.33 O’Driscoll v J Ray McDermott [2001] WADC 198 …. 17.5 — v J Ray McDermott SA [2006] WASCA 25 …. 7.49, 8.20, 17.5 Office of the Children’s Lawyer v Balev 2018 SCC 16 …. 10.65, 10.68 Official Solicitor v Yemoh [2011] WLR 1450 …. 13.19 Ogden v Ogden [1908] P 46 …. 13.23 Ogilvie, Re [1918] 1 Ch 492 …. 22.28, 22.43 Ogilvy v Ogilvy’s Trustees 1927 SLT 83 …. 21.6 OJSC Oil Co Yugraneft (in liq) v Abramovich [2008] EWHC 2613 …. 19.5, 19.17 OJSC TNK-BP Holding v Lazurenko [2012] EWHC 2781 …. 7.38 O’Keefe and Beveridge (In Their Capacity As Joint Liquidators of Level One Residential (Jersey) Ltd and Special Opportunity Holdings Ltd) v Caner [2017] EWHC 1105 …. 23.22 Old UGC Inc v Industrial Relations Commission of New South Wales (2006) 225 CLR 274; [2006] HCA 24 …. 12.13, 12.20, 12.21 xliii



Private International Law in Australia

Olex Focas Pty Ltd v Skodaexport Co Ltd [1998] 3 VR 380 …. 17.25 Olivaylle Pty Ltd v Flottweg GmbH & Co KGAA (No 4) (2009) 255 ALR 632; [2009] FCA 522 …. 2.52 O’Neill, Re [1922] NZLR 468 …. 20.29 Open Universities Australia Pty Ltd v The TAFE Commission [2017] VSC 617 …. 4.61 Oppenheimer v Cattermole [1976] AC 249 …. 1.4, 8.64, 8.65, 8.68, 10.49, 10.51 Optus Networks Pty Ltd v Gilsan (International) Ltd [2006] NSWCA 171 …. 9.12, 9.23 Orleans, Duchess d’, Goods of (1859) 1 Sw & Tr 253; 164 ER 716 …. 12.22 Orr-Ewing’s Trustees v Orr-Ewing (1885) 13 R (HL) 1 …. 22.6 Osborne, Re [1928] St R Qd 129 …. 22.34 Osoba, dec’d, Re [1979] 1 WLR 247 …. 22.25 Overseas Food Importers & Distributors Ltd and Brandt, Re (1981) 126 DLR (3d) 422 …. 5.58 Owens Bank Ltd v Bracco [1992] 2 AC 443 …. 5.28 Owusu v Jackson [2005] 2 WLR 942 …. 4.38 O/Y Wasa SS Co Ltd v Newspaper Pulp and Wood Export Ltd (1949) 82 Lloyd’s L Rep 936 …. 8.49 OZ-US Film Productions Pty Ltd (in liq) v Heath [2000] NSWSC 967 …. 19.6, 19.8

Paramasivam v Flynn (1998) 90 FCR 489 …. 19.5, 19.6, 19.8, 19.10, 19.13, 23.22, 23.23 Park and Byon [2003] FamCA 121 …. 14.4, 14.8 Parkasho v Singh [1968] P 233 …. 13.15 Parma & Parma [2007] FamCA 670 …. 13.52 Parnell Manufacturing Pty Ltd v Lonza Ltd [2017] NSWSC 562 …. 4.16, 17.11 Parnell-Schoneveld v Repatriation Commission (2003) 74 ALD 37; [2003] FCA 153 …. 10.18, 10.20 Parsons & Whittemore Overseas Co Inc v Societe Generale de L’Industrie du Papier 508 F 2d 969 (2nd Cir, 1974) …. 6.32, 6.33 Pascarl & Oxley (edited) (2013) 49 Fam LR 364; [2013] FamCAFC 47 …. 15.27 Passlow v Butmac Pty Ltd [2012] NSWSC 225 …. 6.5 Patterson, Re; Ex parte Taylor (2001) 207 CLR 391; [2001] HCA 51 …. 10.35 Paul v Mid Coast Meat Co Pty Ltd [1995] 1 Qd R 658 …. 4.61, 4.69 Paulin, Re [1950] VLR 462 …. 22.34 Pavitt v Pavitt [2018] QSC 77 …. 5.45 PCH Offshore Pty Ltd v Dunn (No 2) (2010) 273 ALR 167; [2010] FCA 897 …. 2.77, 5.42, 9.10 Pedersen v Young (1964) 110 CLR 162 …. 1.6, 2.21, 2.23, 7.47, 11.1 Peer International Corp v Termidor Music Publishers Ltd [2004] 2 WLR 849 …. 8.50, 8.51, 8.59 Pegasus Leasing Ltd v Balescope Pty Ltd (1994) 63 SASR 51 …. 4.69, 4.75 — v Cadoroll Pty Ltd (1996) 59 FCR 152 …. 4.69, 4.92 — v Tieco International (Australia) Ltd (1993) 61 SASR 195 …. 4.69 Pemberton v Hughes [1899] 1 Ch 781 …. 14.50 Pendal Nominees Pty Ltd v M and A Investments Pty Ltd (1989) 18 NSWLR 383 …. 2.45 Penn v Lord Baltimore (1750) 1 Ves Sen 444; 27 ER 1132 …. 1.19, 3.9 Pepin v Bruyere [1900] 2 Ch 504 …. 22.19 Pergamon Press Ltd v Maxwell [1970] 1 WLR 1167 …. 23.22

P

P, Re [2004] 2 Fam LR 1057 …. 15.37 P (GE), an Infant, Re [1965] Ch 568 …. 15.18 Pabiyanov & Pabiyanova [2018] FamCA 168 …. 16.20 Padolecchia v Padolecchia [1968] P 314 …. 13.33 Pagliotti v Hartner (2009) 41 Fam LR 41; [2009] FamCAFC 18 …. 16.6, 16.7, 16.14 Pain v Holt (1919) 19 SR (NSW) 105 …. 22.34, 22.48 Paine, Re [1940] Ch 46 …. 13.33 Palmer v Turnbull [2018] QCA 112 …. 9.2 Papadopoulos v Papadopoulos [1930] P 55 …. 14.50 Paradise Enterprises Ltd v Kakavas [2010] VSC 25 …. 8.64, 17.33, 19.14 xliv



Table of Cases

Perlak Petroleum Maatschappij v Deen [1924] 1 KB 111 …. 9.10 Permanent Trustee Co (Canberra) Ltd v Finlayson (1967) 9 FLR 424 …. 11.6 — v — (1968) 122 CLR 338 …. 11.6, 22.14, 22.16 — v Permanent Trustee Co of New South Wales Ltd (1969) 14 FLR 246 …. 17.41 Perrett v Robinson [1985] 1 Qd R 83 …. 2.10 — v — (1988) 169 CLR 172 …. 1.29 Persian v Persian [1970] 2 NSWR 538 …. 13.26 Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225 …. 4.87 Peter Buchanan Ltd v McVey [1954] IR 89 …. 8.45 Petroleo Brasiliero v Mellitus Shipping [2001] 1 All ER (Comm) 993 …. 4.37 Petrotimor Companhia de Petroleos SARL v Commonwealth (2003) 197 ALR 461; [2003] FCAFC 3 …. 3.9 Pfalz, The [1921] Argus LR 39 …. 20.27 Philipson-Stow v Inland Revenue Commissioners [1961] AC 727 …. 20.18, 20.33 Phillips v Batho [1913] 3 KB 25 …. 16.17 — v Eyre (1870) LR 6 QB 1 …. 11.8, 11.9, 11.10, 11.12, 11.13, 11.15, 18.2, 18.32, 18.35, 18.36, 18.42 Phrantzes v Argenti [1960] 2 QB 19 …. 7.38 Piatek v Piatek (2010) 245 FLR 137; [2010] QSC 412 …. 19.6, 19.9 Pickering v Stephenson (1872) LR 14 Eq 322 …. 23.14 Picturesque Atlas Publishing Co v Campbell (1891) 24 SALR 145 …. 23.19 Pipon v Pipon (1744) Amb 25; 27 ER 14 …. 1.22, 10.3, 22.35 Placer (PNG) Pty Ltd v Dyno Nobel Asia Pacific Ltd [1999] NSWSC 1292 …. 19.12 Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483 …. 19.6 Plantagenet Wines Pty Ltd v Lion Nathan Wine Group Australia Ltd (2006) 229 ALR 327; [2006] FCA 247 …. 4.74 Platz v Lambert (1994) 12 WAR 319 …. 4.69 Playa Larga v I Congreso del Partido [1983] 1 AC 244 …. 3.14

Plozza & Plozza v South Australian Insurance Co Ltd [1963] SASR 122 …. 7.17, 7.36, 17.3, 18.36 Pocock v Universal City Studios LLC [2012] NSWSC 1481 …. 9.2 Point of Pay Pty Ltd v Roots [2012] VSC 380 …. 4.54 Ponticelli v Ponticelli [1958] P 204 …. 13.31, 13.39 Port of Melbourne Authority v Anshun (1981) 147 CLR 589 …. 5.42 Portelli v Seltsam Ltd [1988] VR 377 …. 2.16 Potinger v Wightman (1817) 3 Mer 67; 36 ER 26 …. 10.18 Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479 …. 3.5 Povey v Hordern [1900] 1 Ch 492 …. 22.53 Power Curber International Ltd v National Bank of Kuwait [1981] 3 All ER 607 …. 21.28 Prekons Insaat Sanayi AS v Rowlands Castle Contracting Group Ltd [2006] EWHC 1367 …. 7.46 Preston v Melville (1841) 8 Cl & F 1; 8 ER 1 …. 22.4 — v Preston [1963] P 411 …. 13.29 Price, Re; Tomlin v Latler [1900] 1 Ch 442 …. 22.42 Price v Dewhurst (1837) 8 Sim 279; 59 ER 111 …. 5.33 Priest, Re [1944] Ch 58 …. 22.40 Princess Reuss v Bos (1871) LR 5 HL 176 …. 23.16 Privatbrauerei Erdinger Weissrau Werner Brombach GmbH v World Brands Australia Pty Ltd [2016] WASC 9 …. 5.57 Pro Swing Inc v Elta Golf Inc [2006] 2 SCR 612 …. 5.24 Proactive Building Solutions v Keck [2013] NSWSC 1500 …. 4.20, 8.20, 17.5, 17.53 Programmed Maintenance Services Ltd v Shell Co of Australia Ltd [2000] QDC 249 …. 4.79 Progressive Holdings Inc v Crown Life Insurance Co (2000) 147 Man R (2d) 175 …. 4.11 Prowse v European & American Steam Shipping Co, The Peerless (1860) 13 Moo PC 484; 15 ER 182 …. 9.10 xlv





Private International Law in Australia

Pryce, Re [1911] 2 Ch 286 …. 22.53 PT Arutmin Indonesia v PT Thiess Contractors Indonesia [2013] QSC 332 …. 17.40 PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1 …. 5.24 PT Garuda Indonesia v Birgen Air [2002] SGCA 12 …. 6.21 PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2011) 192 FCR 393; [2011] FCAFC 52 …. 3.16 — v — (2012) 247 CLR 240; [2012] HCA 33 …. 3.13, 3.16, 3.20 Puccini Festival Australia Pty Ltd v Nippon Express (Australia) Pty Ltd (2007) 17 VR 36; [2007] VSC 288 …. 2.43 Pugh v Morrison [2011] ACTSC 44 …. 18.20 Pulido v RS Distribution Pty Ltd (2003) 177 FLR 401; [2003] ACTSC 61 …. 7.48 Puttick v Tenon Ltd (2008) 238 CLR 265; [2008] HCA 54 …. 4.44, 4.45, 4.46, 4.54, 18.33, 18.34

R

R (Child Abduction), Re (1995) 1 FLR 716 …. 15.47 R v Brentwood Superintendent Registrar of Marriages; Ex parte Arias [1968] 2 QB 956 …. 13.33, 13.36 — v Burgess; Ex parte Henry (1936) 55 CLR 608 …. 10.49 — v Byrne (1867) 6 SCR (NSW) 302 …. 13.26 — v Ford (1913) 32 NZLR 1219 …. 9.12 — v Gowda; R v Mashru [2018] QCA 31 …. 13.4 — v Home Secretary; Ex parte L [1945] KB 7 …. 10.51 — v International Trustee for the Protection of Bondholders AG [1937] AC 500 …. 17.6, 17.15 — v Langdon (1953) 88 CLR 158 …. 15.61 — v Macdonald; Ex parte Macdonald (1953) 88 CLR 197 …. 2.19 — v Madan [1961] 2 QB 1 …. 3.34 — v McLeod (1890) 11 LR (NSW) 218 …. 5.9 — v Millis (1844) 10 Cl & Fin 534; 8 ER 844 …. 13.26, 13.27 — v Oregan; Ex parte Oregan (1957) 97 CLR 323 …. 2.19 — v Superintendent of Vine Street Police Station; Ex parte Liebmann [1916] 1 KB 268 …. 10.51 — v Tan [1983] QB 1053 …. 13.11 — v White and Noonan; Ex parte TA Field Pty Ltd (1975) 133 CLR 113 …. 5.75 — v Williams [1942] AC 541 …. 20.16 Radwan v Radwan (No 2) [1973] Fam 35 …. 13.33, 13.35, 13.53 Raiffeisen Zentralbank Osterreich AG v Five Star Trading LLC [2001] QB 825; [2001] 3 All ER 257; [2001] EWCA Civ 68 …. 7.22, 7.23, 17.3, 20.10, 21.21, 21.25, 21.26, 21.28, 21.34 Rainford v Newell-Roberts [1962] IR 95 …. 5.19 Raithatha v Ariel Industries PLC (2012) 212 FCR 139; [2012] FCA 1526 …. 24.7 Raja Bahrin, Marriage of (1986) 11 Fam LR 233 …. 15.71 Ralli Bros v Compañia Naviera Sota y Aznar [1920] 2 KB 287 …. 17.39, 17.40

Q

QBE Insurance (Aust) Ltd v Hotchin (administrator of the estate of Hotchin (dec’d)) [2011] NSWSC 681 …. 4.89 QRS 1 ApS v Frandsen [1999] 1 WLR 2169 …. 8.45 Quarter Enterprises Pty Ltd v Allardyce Lumber Co Ltd (2014) 85 NSWLR 404; [2014] NSWCA 3 …. 5.30, 5.57, 5.63 Quazi v Quazi [1980] AC 744 …. 14.13, 14.21 Queensland v Property Nominees Pty Ltd (1982) 6 ACLR 739 …. 2.11 Queensland Estates Pty Ltd v Collas [1971] Qd R 75 …. 17.11 Queensland Mercantile Agency Co Ltd, Re [1891] 1 Ch 536 …. 21.29, 21.30, 21.32 Queensland Nickel Pty Ltd (in liq) v Queensland Nickel Sales Pty Ltd [2017] QSC 305 …. 9.2, 9.9 Quick v Quick [1953] VLR 224 …. 13.26 Quinlan v Safe International Försäkrings AB (2006) 14 ANZ Ins Cas 61-693; [2005] FCA 1362 …. 4.18, 4.26 Qureshi v Qureshi [1972] Fam 173 …. 13.16 xlvi



Table of Cases

Ralston, Re [1906] VLR 689 …. 20.29, 22.18 Ramanathan v Naidu [2007] NSWSC 693 …. 5.29, 5.63 Randwick Labor Club Ltd v Amalgamated Television Services Pty Ltd [2000] NSWSC 906 …. 7.40 Razelos v Razelos (No 2) [1969] 3 All ER 929 …. 2.8 RBS Rights Issue Litigation, Re [2016] EWHC 3161 …. 7.34 RCB v The Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47 …. 15.7 Recyclers of Australia Pty Ltd v Hettinga Equipment Inc (2000) 100 FCR 420; [2000] FCA 547 …. 6.20 Red Fox, Marriage of 542 P 2d 918 (1975) …. 1.34 Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190 …. 18.3 Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd (2015) 89 NSWLR 104; [2015] NSWCA 73 …. 18.40 Redcliffe Resources Ltd, The Matter of [2016] FCA 404 …. 20.16 Reese Bros Plastics Ltd v Hamon-Sobelco Aust Pty Ltd (1988) BCL 91 …. 2.52 Regazzoni v KC Sethia (1944) Ltd [1958] AC 301 …. 8.62, 17.40 Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10 …. 1.25, 1.29, 2.78, 3.5, 3.11, 4.43, 4.46, 4.51, 4.54, 7.40, 7.49, 9.1, 9.2, 9.4, 9.7, 9.30, 11.19, 18.2 Reid v Wright [2012] NSWSC 1149 …. 7.49 Reidy v Trustee of Christian Brothers (1994) 12 WAR 583 …. 7.29 Reihana, Marriage of (1980) 6 Fam LR 134 …. 15.71 Reinsurance Australia Corp Ltd v HIH Casualty and General Insurance Ltd (in liq) (2003) 254 ALR 29; [2003] FCA 56 …. 4.18, 4.24, 4.30 Renault v Zhang (2002) 210 CLR 491 [2002] HCA 10 …. 18.4, 18.20, 18.23, 18.25, 18.28 Republica de Guatemala v Nunez [1927] 1 KB 669 …. 21.23, 21.24, 21.25, 21.27 Resort Condominiums International Inc v Bolwell (1993) 118 ALR 655 …. 6.35, 6.38 Reyes v Al-Malki [2017] UKSC 61 …. 3.30

Reynolds v Reynolds (1979) FLC 90-728 …. 16.8 Richard West Partners (Inverness) Ltd v Dick (1969) 2 Ch 424 …. 3.9 Richards v Director-General, Dept of Child Safety [2007] FamCA 65 …. 15.45 Richardson v Mellish (1824) 2 Bing 229; 130 ER 294 …. 8.57 Rickshaw Investments Ltd v Nicolai Baron von Uexkull [2006] SGCA 39; [2007] 1 SLR 377 …. 4.38, 19.5, 19.11 Rimini Ltd v Manning Management and Marketing Pty Ltd [2003] 3 NZLR 22 …. 2.16 Rinehart v Welker [2012] NSWCA 95 …. 6.5 Risdon Iron and Locomotive Works v Furness [1906] 1 KB 49 …. 23.20 Risk v Risk [1951] P 50 …. 13.20 Ritchie, Re [1942] 3 DLR 330 …. 20.29 River Gum Homes Pty Ltd v Meridian Pty Ltd [2010] QCA 293 …. 4.74, 4.75 Robert v Robert [1947] P 164 …. 13.39 Roberta, The (1937) 58 Lloyd’s Rep 159 …. 7.33 Robertson v Struth (1844) 5 QB 941; 114 ER 1503 …. 5.9 Robinson v Bland (1760) 1 Wm Bl 234; 2 Burr 1077; 97 ER 717; 96 ER 129 …. 1.21, 1.22 — v Studorp Ltd (2013) 279 FLR 329; [2013] QSC 238 …. 9.25 Robinson-Scott v Robinson-Scott [1958] P 71 …. 14.35 Robson v Robson [2010] QSC 378 …. 10.61 Robotunits Pty Ltd v Mennel [2015] VSC 268 …. 6.4, 6.5, 6.6 Rochford v Dayes (1989) 84 ALR 405 …. 2.19 Rocklea Spinning Mills Pty Ltd v Consolidated Trading Corp [1995] 2 VR 181 …. 4.54 Roerig v Valiant Trawlers Ltd [2002] 1 WLR 2304 …. 7.41 Roff v Aqua Distributors Pty Ltd [1996] 966 FCA 1 …. 4.69 Ropat Pty Ltd v Scarfe [1999] 2 Qd R 102 …. 4.69 Ross, Re; Ross v Waterfield [1930] 1 Ch 377 …. 8.20, 8.29, 8.30, 8.32 Ross v Ross [2010] NZCA 447 …. 5.34, 8.58

xlvii





Private International Law in Australia

Rossano v Manufacturers Life Insurance Co [1963] 2 QB 352 …. 9.10, 20.3 Rosseel NV v Oriental Commercial & Shipping Co (UK) Ltd [1991] 2 Lloyd’s Rep 625 …. 6.35 Rothwells Ltd (in liq) v Connell (1993) 119 ALR 538 …. 11.6 Routley v Bridgestone Australia Ltd [2004] NSWDDT 4 …. 7.40 Row v Jugg [1911] 1 Ch 179. …. 21.5 Rowe v Silverstein [1996] 1 VR 509 …. 5.69 Rowett Leaky & Co Ltd v Scottish Provident Institution [1927] 1 Ch 55 …. 17.41 Roy Hill Holdings Pty Ltd v Samsung C&T Corp [2015] WASC 458 …. 6.4, 6.13, 6.14 Royal Bank of Scotland plc v Babcock & Brown DIF III Global Co-Investment Fund LP [2017] VSCA 138 …. 4.25 Royal Trust Co v Attorney-General (Alberta) [1930] AC 144 …. 20.11 — v Provincial Secretary — Treasurer of New Brunswick [1925] 2 DLR 49 …. 20.14 Rubin v Eurofinance SA; New Cap Reinsurance Corp (in liq) v AE Grant [2013] 1 AC 236 …. 24.13, 24.16, 24.17, 24.21 Rucker, Re; Ex parte Rucker (1834) 3 LJ Bcy 104 …. 20.3 Rudd v Rudd [1924] P 72 …. 14.45 Ruding v Smith (1821) 2 Hag Con 371; 161 ER 774 …. 10.17, 13.30 Rumput (Panama) SA v Islamic Republic of Iran Shipping Lines (The ‘Leage’) [1984] 2 Lloyd’s Rep 259 …. 6.9 Russian and English Bank v Baring Bros & Co [1936] AC 405 …. 24.26 Russian Commercial & International Bank, Re [1955] Ch 148 …. 24.26 Rutherford & Safi [2014] FamCA 154 …. 13.52 Ryder v Hartford Insurance Co [1977] VR 257 …. 7.14, 7.17, 7.19, 18.36

S

S (A Child) (Abduction: Rights of Custody), Re [2012] 2 AC 257 …. 15.51 S (a Minor) (Abduction: Custody Rights), Re [1993] Fam 242 …. 15.54

S (minors) (abduction: wrongful retention), Re [1994] Fam 70 …. 15.39 S (Minors) (Child Abduction: Wrongful Retention), Re [1994] 1 FCR 83 …. 10.69 S and S Ltd v XYZ Ltd [2016] NZHC 26 …. 19.18 SA Consortium General Textiles v Sun and Sand Agencies Ltd [1978] QB 279 …. 8.43 Sadler v Robins (1808) 1 Camp 253; 170 ER 948 …. 5.23 Safran v Chani (1969) 14 FLR 128 …. 2.15 — v — (1970) 72 SR (NSW) 146 …. 2.59 Sahni & Kamdar [2018] FCCA 937 …. 16.8 Sahrawi & Hadrami [2018] FamCAFC 170 …. 15.27 Salacup, Marriage of (1993) 17 Fam LR 141 …. 10.28 Salfinger v Niugini Mining (Australia) Pty Ltd (No 3) [2007] FCA 1532 …. 21.36 Saliba v Falzon [1998] NSWSC 302 …. 19.20 Saltram Wine Estates Pty Ltd v Independent Stave Co (1992) 57 SASR 156 …. 2.41 Salvesen v Administrator of Austrian Property [1927] AC 641 …. 14.28, 14.50 Samarni v Williams [1980] 2 NSWLR 389 …. 2.95, 17.26 Sanders, Goods of [1900] P 292 …. 22.11 Sangha v Mander (1985) 47 RFL (2d) 212 …. 13.39 Sankil and Sankil (2007) FLC 93-351; [2007] FamCA 1381 …. 14.8 Sauber Motorsport AG v Giedo van der Garde BV (2015) 317 ALR 786 …. 6.5, 6.32, 6.38 Savenis v Savenis and Szmeck [1950] SASR 309 …. 13.28 Saxby v Fulton [1909] 2 KB 208 …. 8.64, 9.13, 17.38 Sayers v International Drilling Co NV [1971] 3 All ER 163 …. 7.13, 12.26, 12.27, 18.47 Schemmer v Property Resources Ltd [1975] Ch 273 …. 8.55 Schenck, Marriage of (1981) 7 Fam LR 170 …. 15.71 Schib Packaging Srl v Emrich Industries Pty Ltd (2005) 12 VR 268; [2005] VSCA 236 …. 2.43 Schibsby v Westenholz (1870) LR 6 QB 155 …. 1.34, 5.12

xlviii



Table of Cases

Schintz, Re; Schintz v Warr [1926] 1 Ch 711 …. 23.13 Schmidt v Won [1998] 3 VR 435 …. 2.35, 4.69, 4.75 Schnabel v Lui [2002] NSWSC 15 …. 5.22, 8.42 Schnapper, Re [1928] Ch 420 …. 22.39 Schumacher v Summergrove Estates Ltd [2012] NZHC 3177 …. 3.9 — v — [2013] NZHC 1387 …. 3.9 — v — [2014] 3 NZLR 599 …. 4.38, 19.15, 19.27 Schwarz, Marriage of (1985) 10 Fam LR 235 …. 15.71 Schwebel v Ungar (1963) 42 DLR (2d) 622 …. 13.32 — v — (1964) 48 DLR (2d) 644 …. 8.4, 8.5, 8.6, 8.7, 8.8, 8.9, 8.10 Schweitzer v Kronen Verwaltungs GmbH [1998] VSC 190 …. 2.50 Scott v Attorney-General (1886) 11 PD 128 …. 13.40 Scottish National Orchestra Society v Thomson’s Executor 1969 SLT 325 …. 22.14, 22.15 Scrimshire v Scrimshire (1752) 2 Hag Con 395; 161 ER 782 …. 1.22, 10.18, 13.22 Sealey v Callan [1953] P 135 …. 16.14 Secretary, Attorney-General’s Dept (Cth) v Donald [2011] FamCA 482 …. 10.68 Secretary, Department of Family and Community Services v Padwa (2016) 55 Fam LR 261; [2016] FamCAFC 57 …. 15.31 Secretary, Dept of Social Security v SRA (1993) 118 ALR 467 …. 13.11 Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v HR & CD [2016] NSWSC 1926 …. 13.4 Secure Capital SA v Credit Suisse AG [2015] EWHC 388 …. 7.23 — v — [2017] EWCA Civ 1486 …. 7.23 Sedgwick Ltd v Bain Clarkson Ltd (1994) 56 FCR 578 …. 2.75 Seegner v Marks (1895) 21 VLR 491 …. 5.12 Seeley International Pty Ltd v Electra Air Conditioning BV (2008) 246 ALR 589; [2008] FCA 29 …. 6.6

Sehota, Re [1978] 3 All ER 385 …. 13.19 Sells v Rhodes (1905) 26 NZLR 87; Kaur v Narula [2007] FMCAfam 657 …. 10.27 Sennar (No 2), The [1985] 1 WLR 490 …. 5.40 Sentry Corp v Peat Marwick (1990) 95 ALR 11 …. 4.53 Severstal Export GmbH v Bhushan Steel Ltd (2013) 84 NSWLR 141; [2013] NSWCA 102 …. 5.24 Seymour-Smith v Electricity Trust of South Australia (1989) 17 NSWLR 648 …. 2.31 Shagang South-Asia (Hong Kong) Trading Co Ltd v Daewoo Logistics [2015] EWHC 194 (Comm) …. 6.21 Shahnaz v Rizwan [1965] 1 QB 390 …. 13.19 Shamil Bank of Bahrain EC v Beximco Pharmaceuticals Ltd [2004] 2 Lloyd’s Rep 1 …. 17.1 Shanghai Electric Group Pty Ltd v PT Merak Energi Indonesia [2010] SGHC 2 …. 7.38 Sharpe v Crispin (1869) LR 1 P&D 611 …. 10.18 Sharps Commercials Ltd v Gas Turbines Ltd [1956] NZLR 819 …. 5.20 Sheldon v Douglas (No 1) [1963] NSWR 129 …. 14.38 Sheldon Pallet Manufacturing Co Pty Ltd v New Zealand Forest Products Ltd [1975] 1 NSWLR 141 …. 2.51 Shelling v Farmer (1726) 1 Stra 646; 93 ER 756 …. 1.22 Shenken v Phoenix Life Ltd [2015] ScotCS CSOH …. 22.14 Sherrin Hire Pty Ltd v Tidd Ross Todd Ltd (No 2) [2016] FCA 891 …. 9.24 Ship ‘Gem of Safaga’ v Euroceanica (UK) Ltd (2010) 182 FCR 27; [2010] FCAFC 14 …. 20.9 Ship ‘Sam Hawk’ v Reiter Petroleum Inc (2016) 246 FCR 337 …. 7.50 Shipowners’ Mutual Protection and Indemnity Association (Luxembourg) v Containerships Denizcilik Nakliyat VE Ticaret AS (The Yusuf Ceprioglu) [2016] EWCA Civ 386 …. 7.13 — v Hodgetts [1999] 2 Qd R 58 …. 6.12 Shire of Yeerongpilly v Love (1906) 1 QJPR 73 …. 2.83 xlix





Private International Law in Australia

Shoalhaven City Council v Ellis [2012] NSWLEC 225 …. 11.9 Showlag v Mansour [1995] 1 AC 431 …. 5.37, 5.68 Showtime Touring Group Pty Ltd v Mosely Touring Inc [2010] NSWSC 974 …. 2.52 Siam Steel International PLC v Compass Group (Australia) Pty Ltd [2014] WASC 415 …. 6.14 Sibly & Cassidy [2015] FamCA 912 …. 16.4 Siegelman v Cunard White Star Ltd 221 F 2d 189 (1955) …. 1.31 Sierra Leone Telecommunications Co Ltd v Barclays Bank plc [1998] 2 All ER 821 …. 23.20, 23.22 Sigley & Sigley (2018) 57 Fam LR 347; [2018] FamCA 3 …. 15.74 Sigma Coachair Group Pty Ltd v Bock Australia Pty Ltd [2009] NSWSC 684 …. 2.77 Sim v Robinow (1892) 19 R 665 …. 4.33 Sim Hok Khun @ Hadi Gunawan v Henry Budi Harsono @ Sim Hok Kiong [2012] SGHC 256 …. 19.28 Simmons v Simmons (1917) 17 SR (NSW) 419 …. 8.32, 8.33, 9.2 Simonfi v Fimmel [2000] ACTSC 54 …. 4.76 Simonin v Mallac (1860) 2 Sw & Tr 67; 104 ER 917 …. 13.23 Simons v Simons [1939] 1 KB 490 …. 16.17 Sinclair v Sinclair (1798) 1 Hag Con 294; 161 ER 557 …. 14.42 Singh v Commonwealth (2004) 222 CLR 322 …. 1.6, 10.35, 10.46, 10.49 — v Singh (2009) 253 ALR 575; [2009] WASCA 53 …. 3.9, 3.11 Sinha Peerage Claim [1946] 1 All ER 348 …. 13.19 Sino Dragon Trading Ltd v Noble Resources International Pte Ltd [2016] FCA 1131 …. 6.29, 6.33, 6.38 Sirdar Gurdyal Singh v Rajah of Faridkote [1894] AC 670 …. 5.19 SK Foods LP v SK Foods Australia Pty Ltd (in liq) (No 3) (2013) 302 ALR 260; [2013] FCA 526 …. 5.39 Skelton v Z487 Ltd [2014] NZHC 707 …. 4.56 Smith & Saywell (1980) FLC 90-856 …. 16.8

Soares, Marriage of (1989) 13 Fam LR 163 …. 15.28 Societe Co-op Sidmetal v Titan International Ltd [1966] 1 QB 828 …. 5.20 Société Eram Shipping Co Ltd v Compagnie Internationale de Navigation [2003] 3 WLR 21 …. 20.10, 21.28 Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 …. 4.87, 4.89 — v United States District Court for the Southern District of Iowa 482 US 522 (1986) …. 1.34 Soderberg v Soderberg [2016] FamCA 71 …. 16.7 Soleimany v Soleimany [1999] QB 785 …. 6.38 Solomon v Solomon (1912) 29 WN (NSW) 68 …. 10.29 Somers v Fournier (2002) 214 DLR (4th) 611 …. 7.41, 7.43, 7.45 Somerville v Lord Somerville (1801) 5 Ves Jun 750; 31 ER 839 …. 10.7, 10.17, 10.18, 10.46 Song v Shi [2011] NSWSC 1207 …. 14.11 Sottomayor v De Barros (1877) LR 3 PD 1 …. 17.29 — v — (No 2) (1879) 5 PD 94 …. 13.37, 13.38, 13.44, 13.55 South Adelaide Football Club v Fitzroy Football Club (No 1) (1988) 49 SASR 380 …. 2.57 South African Breweries Ltd v King [1899] 2 Ch 173 …. 17.34 South Head & District Synagogue (Sydney) (Administrators Appointed), Re [2017] NSWSC 823 …. 17.1 Sowa v Sowa [1961] P 70 …. 13.20 Soysa & Commissioner of Police [2011] FamCAFC 39 …. 15.40 Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 …. 1.18, 4.34, 4.38, 4.39, 4.41, 4.43, 4.46, 4.49, 4.50, 4.51, 4.56, 4.65, 4.68, 4.71, 4.73, 23.8 Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69 …. 19.8, 19.15 — v — [2013] FCAFC 106 …. 5.33, 5.34 SS Pacific Star v Bank of America Trust & Savings Assn [1965] WAR 159 …. 5.18 l



Table of Cases

S-T (formerly J) v J [1998] Fam 103 …. 13.11 St George Bank Ltd v McTaggart [2003] 2 Qd R 568; [2003] QCA 059 …. 4.78, 4.79 St Pierre v South American Stores (Gath & Chaves) Ltd [1936] 1 KB 382 …. 4.33 Stafford Allen & Sons Ltd v Pacific Steam Navigation Co [1956] 2 All ER 716 …. 17.26 Stammbach v MBD Energy Ltd [2014] NSWSC 807 …. 4.74 Standard Chartered Bank Ltd v Inland Revenue Commissioner [1978] 3 All ER 644 …. 20.16 Standard Insurance Company Ltd, Re [1968] Qd R 118 …. 24.6, 24.30 Stanford International Bank, Re [2009] EWHC 1441 …. 24.7 Stankus v Stankus (1974) 9 SASR 20 …. 13.32 Stanley v Bernes (1830) 3 Hagg Ecc 373; 162 ER 1190 …. 10.7 Stanley Kerr Holdings Pty Ltd v Gibor Textile Enterprises Ltd [1978] 2 NSWLR 372 …. 2.41, 17.18 Starkowski (otherwise Urbanski) v AttorneyGeneral [1954] AC 155 …. 13.4, 13.24 Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG [2014] 1 All ER 590; [2013] UKSC 70 …. 4.28 Starr-Diamond v Diamond (No 3) [2013] NSWSC 351 …. 2.35 State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 154 CLR 579 …. 2.23 State Central Authority & Spring-Ernst (No 2) [2013] FamCA 906 …. 15.8 State Central Authority and LJK (2004) FLC 93-200 …. 15.40 Steen and Black (2000) FLC 93-005 …. 14.8 Stein v Valkenhuysen (1858) EB and E 65; 120 ER 431 …. 2.10 Sterling Pharmaceuticals Pty Ltd v Boots Co (Aust) Pty Ltd (1992) 34 FCR 287 …. 4.53 Stern v National Australia Bank [1999] FCA 1421 …. 5.34, 8.58 Stevens v Head (1993) 176 CLR 433 …. 1.25, 1.29, 7.24, 7.25, 7.26, 7.27, 7.28, 7.39, 11.10, 11.12, 11.23, 11.24

Stewart v Australian Crime Commission (2012) 206 FCR 347; [2012] FCAFC 151 …. 7.34 — v Franmara Inc (No 2) [2012] NZHC 1771 …. 3.5 Stillianesis v Stillianesis [2017] NSWSC 1189 …. 14.11 Stirling-Maxwell v Cartwright (1879) 11 Ch D 522 …. 22.13 Stoeck v Public Trustee [1921] 2 Ch 67 …. 10.49 Stransky v Stransky [1954] P 428 …. 10.57, 10.58 Street v Queensland Bar Association (1989) 168 CLR 461 …. 11.21, 11.25 Studd v Cook (1883) 8 App Cas 577 …. 22.25 Studorp Ltd v Robinson [2012] NSWCA 382 …. 4.51 — v — [2014] QCA 174 …. 9.25 Subbotovsky v Waung (1968) 72 SR (NSW) 242 …. 7.36 — v — [1968] 3 NSWR 261 …. 9.23 Sudlow v Dutch Rhenish Railway (1855) 21 Beav 43; 52 ER 724 …. 23.13 Sue v Hill (1999) 199 CLR 462; [1999] HCA 30 …. 1.6, 10.49, 10.51, 12.14 Sulamerica Cia Nacional de Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638 …. 6.20 Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237 …. 4.88 — v — (No 1) [2012] VSC 1 …. 4.88 Surgibit IP Holdings Pty Ltd v Ellis (No 2) [2017] NSWSC 1379 …. 8.43 Suria, In the Marriage of (1977) 3 Fam LR 11,541 …. 13.31 Sussex Peerage Case (1844) 11 Cl & F 85; 8 ER 1034 …. 9.10 Suzlon Energy Ltd v Bangad (No 3) [2012] FCA 123 …. 9.2 Svirkis v Gibson [1977] 2 NZLR 4 …. 5.29 Swan, In the Will of (1871) 2 VR (IE&M) 47 …. 13.4, 13.32 Swanson v Harley (1995) 102 NTR 25 …. 4.69 — v — (1995) 103 NTR 25 …. 2.33, 2.39 li





Private International Law in Australia

Sweedman v Transport Accident Commission (2006) 226 CLR 362; [2006] HCA 8 …. 1.29, 7.13, 7.37, 11.17, 11.18, 11.20, 11.22, 11.23, 11.27, 11.28, 12.4, 12.14, 17.3, 18.38, 18.39, 18.40 Swiss Bank Corp v Boehmische Industrial Bank [1923] 1 KB 673 …. 21.28 Syal v Heyward [1948] 2 KB 443 …. 5.27 Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 …. 2.52, 2.75, 2.79, 17.50, 18.13 Sykes v Cleary (No 2) (1992) 176 CLR 77 …. 10.49, 10.50, 10.51, 10.52, 10.53, 12.14 Szechter v Szechter [1971] P 286 …. 13.31 Szintay v Szintay (1954) 73 WN (NSW) 330 …. 15.28

Taylor v Begg [1932] NZLR 286 …. 5.23 — v Lovegrove (1912) 18 ALR (CN) 22 …. 21.14 — v Taylor (SC (Vic), Lush J, 17 September 1970, unreported) …. 15.70 — v Trustees of Christian Brothers [1994] Aust Torts Reps 81-288 …. 4.69 TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 311 ALR 387; [2014] FCAFC 83 …. 6.32, 6.38 — v The Judges of the Federal Court of Australia (2013) 295 ALR 596; [2013] HCA 5 …. 6.39 Tedja and Sony [2015] FamCAFC 13 …. 14.4, 14.8 Telesto Investments Ltd v UBS AG (2012) 262 FLR 119; [2012] NSWSC 44 …. 5.41, 2.75 — v — (2013) 94 ACSR 29; [2013] NSWSC 503 …. 4.14, 4.22, 4.23, 4.42, 5.15, 5.22, 5.39, 5.41, 5.42 Templeman and Linden [2015] FamCA 528 …. 14.4 Teo v Guan (2015) 296 FLR 172; 53 Fam LR 248; [2015] FamCAFC 94 …. 16.6, 16.8, 19.20 Terrell v Secretary of State for the Colonies [1953] 2 QB 482 …. 9.12 Terry (dec’d), Re [1951] NZLR 30 …. 20.30 Teves and Campomayor, In the Marriage of [1995] FLC 92-578 …. 13.32, 13.58 Texas v White 19 L Ed 277 (1868) …. 8.38 Tharsis Sulphur & Copper Co Ltd v Société Industrielle et Commerciale des Métaux (1889) 58 LJKB 435 …. 2.95 THC Holding Pty Ltd v CMA Recycling Pty Ltd (Admin Apptd) (2014) 101 ACSR 202; [2014] NSWSC 1136 …. 17.16 Thompson, Marriage of (1990) 14 Fam LR 542 …. 15.40 Thomson v Harding (1853) 2 El & Bl 630; 118 ER 904 …. 22.15 Thor Shipping A/S v Ship Al Duhail (2008) 173 FCR 524; [2008] FCA 1842 …. 20.9 Thorn-L & M Appliances Pty Ltd v Claudianos [1970] Qd R 141 …. 7.11 Through Transport Mutual Insurance Assn (Eurasia) Ltd v New India Assurance Co Ltd, The Hari Bhum [2004] 1 Lloyd’s Rep 206 …. 4.90

T

T (Minors) (International Child Abduction: Access), Re [1993] 3 All ER 127 …. 15.58 Taczanowska v Taczanowski [1957] P 301 …. 13.29 Taffa and Taffa [2009] FamCA 85 …. 14.30 Taffa and Taffa (Summary Dismissal) [2012] FamCA 181 …. 16.7 Tahiri v Minister for Immigration and Citizenship (2012) 293 ALR 526; [2012] HCA 61 …. 9.1 Tai-Soo Suk v Hanjin Shipping Co Ltd [2016] FCA 1404 …. 24.11 Tallerman and Co Pty Ltd v Nathan’s Merchandise (Vic) Pty Ltd (1957) 98 CLR 93 …. 2.53 Talwar and Sarai [2018] FamCAFC 152 …. 9.2, 9.26 Tamburin, In the Estate of (2014) 119 SASR 143; [2014] SASC 58 …. 22.11 Tang, Re [2017] VSC 59 …. 10.9, 10.27, 22.35 Tang, Re [2017] VSCA 171 …. 9.23, 22.35 Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332 …. 6.9 Tassell v Hallen [1892] 1 QB 321 …. 2.83 Taurus Funds Management Pty Ltd v Aurox Resources Ltd [2010] NSWSC 1223 …. 4.61 Taylor, Marriage of (1988) 12 Fam LR 423 …. 15.28 Taylor, Re; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194 …. 10.57, 10.58 lii



Table of Cases

Tipperary Developments Pty Ltd v State of Western Australia (2009) 38 WAR 488; [2009] WASCA 126 …. 7.35, 17.31 Tirta v Lim [2012] FamCA 63 …. 10.60 Tisand Pty Ltd v Owners of Ship MV ‘Cape Moreton’ (Ex ‘Freya’) (2005) 143 FCR 43; [2005] FCAFC 68 …. 20.9 Titchfield Management Ltd v Vaccinoma Inc (2008) 68 ACSR 448; [2008] NSWSC 1196 …. 24.26 TMW, Ex parte [1981] Qd R 436 …. 15.18 Todd Shipyards Corporation v Altema Compania Maritima SA (The Ioannis Daskalelis) …. 7.50 Tolofson v Jensen [1994] 3 SCR 1022 …. 7.28 Toronto General Trusts Corp v R [1919] AC 679 …. 20.12 Toyo Engineering Corp v John Holland Pty Ltd [2000] VSC 553 …. 6.36 Tracy v Tracy (1939) 39 SR (NSW) 447 …. 14.13 Trade Practices Commission v Collings Construction Co Pty Ltd (1994) 53 FCR 137 …. 4.69 — v Manfal Pty Ltd (1990) 21 FCR 230 …. 2.30 Transfield Philippines Inc v Pacific Hydro Ltd [2006] VSC 175 …. 6.7 Translink Shipping Ltd v Compagnie Wallisienne de Navigation SARL (1991) 37 Fiji LR 46 …. 4.38 Transpac Capital Pte Ltd v Buntoro [2008] NSWSC 671 …. 6.37 Transport Accident Commission v Sweedman (2004) 10 VR 31; 210 ALR 140; [2004] VSCA 162 …. 11.17, 11.25 Travers v Holley [1953] P 246 …. 1.34, 14.25, 14.27, 14.31, 14.32, 14.33, 14.34, 14.36, 14.37, 14.38, 14.41 Traversi’s Estate, Re 64 NYS 2d 453 (1946) …. 22.46 Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1993) 36 FCR 406 …. 5.40 Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2) (2012) 201 FCR 535; [2012] FCA 276 …. 6.38 Trendtex Trading Corp v Central Bank of Nigeria [1977] QB 529 …. 3.16

Trepca Mines Ltd, Re [1960] 3 All ER 304 …. 5.20 Tribond Developments Pty Ltd v AttorneyGeneral of South Australia [1997] FCA 106 …. 4.69 Tricon Industries Pty Ltd v Abel Lemon and Co Pty Ltd [1988] 2 Qd R 464 …. 2.41 Trina Solar (US) Inc v Jasmin Solar Pty Ltd (2017) 247 FCR 1; [2017] FCAFC 6 …. 4.14, 17.28 Trnka, Marriage of (1984) 10 Fam LR 213 …. 15.74 Trotter v Trotter (1828) 4 Bli NS 502; 5 ER 179 …. 22.42 Tucker, In the Goods of (1864) 3 Sw and Tr 585; 34 LJPM & A 29; 164 ER 1402 …. 2.88, 22.4 Tulloch v Williams (1846) 8 D 657 …. 4.35 Turelin Nominees v Dainford Ltd (1983) 47 ALR 326 …. 2.30 Turner v Grovit [2005] 1 AC 101 …. 4.38 Twin Benefits Ltd v Barker [2017] EWHC 1412 …. 19.3 Tyburn Productions Ltd v Conan Doyle [1991] Ch 75 …. 3.5 Tycoon Holdings Ltd v Trencor Jetco Inc (1992) 34 FCR 31 …. 2.46 Tyler v Judges of the Court of Registration 55 NE 812 (1900) …. 2.1 Tzortzis v Monark Line AB [1968] 1 All ER 949 …. 17.13

U

Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd (2011) 277 ALR 415; [2011] FCA 131 …. 6.32, 6.38 Uhlmann v Harris (No 2) [2018] QSC 28 …. 2.35, 3.6, 11.14, 22.34 Ulvstig (dec’d), Re [2000] QSC 66 …. 22.31, 22.45 Udny v Udny (1869) LR 1 Sc & Div 441 …. 10.7, 10.9, 10.15 Ungar v Ungar [1967] 2 NSWR 618 …. 13.32 Union Nationale des Cooperatives Agricoles de Cereales v Robert Caterall & Co Ltd [1959] 2 QB 44 …. 6.35 Union Shipping New Zealand Ltd v Morgan (2002) 54 NSWLR 690; [2002] NSWCA 124 …. 4.46, 18.16 liii





Private International Law in Australia

Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 …. 12.4 United Railways of the Havana and Regla Warehouses Ltd, Re [1960] Ch 52 …. 17.5, 17.16, 17.43 United Railways of the Havana and Regla Warehouses Ltd, Re [1961] AC 1007 …. 17.15 United States of America v Inkley [1989] 1 QB 255 …. 8.41, 8.53 United States Securities and Exchange Commission v Manterfield [2009] EWCA Civ 27 …. 8.55 United States Surgical Corporation v Hospital Products International Pty Ltd [1983] 2 NSWLR 157 …. 23.22 — v — [1982] 2 NSWLR 766 …. 9.2, 9.5, 19.5, 19.6, 19.8, 19.15, 23.22 United States Trust Co of New York v Australia and New Zealand Banking Group Ltd (1995) 37 NSWLR 131 …. 9.28 Upright v Mercury Business Machines 231 NYS 2d 417 (1961) …. 8.38 Uriarau, Marriage of (1986) 11 Fam LR 657 …. 15.73 Usines de Melle’s Patent, Re (1954) 91 CLR 42 …. 20.31

Venter v Ilona MY [2012] NSWSC 1029 …. 4.14, 4.25, 4.30, 17.28 Vervaeke v Smith [1977] Fam 77 …. 13.38 — v — [1983] 1 AC 145 …. 5.37, 14.47, 14.48 Vetreria Etrusca SRL v Kingston Estate Wines Pty Ltd [2008] SASC 75 …. 4.24 Victoria v Hansen [1960] VR 582 …. 2.50, 2.83 Victoria Leasing Aircraft Ltd v United States of America (2005) 218 ALR 640; [2005] VSCA 76 …. 3.18, 3.21 Victorian Philip Stephan Photo Litho Co v Davies (1890) 11 LR (NSW) 257 …. 5.16 Virgtel Ltd v Zabusky [2006] 2 Qd R 81; [2006] QSC 066 …. 23.21 Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277 …. 17.5, 17.7, 17.8, 17.10, 17.13, 17.46 — v — [1939] AC 290 …. 17.11, 17.26 Vizcaya Partners Ltd v Picard [2016] UKPC 5 …. 5.15 Vogel v Kohnstamm Ltd [1973] 1 QB 133 …. 5.15 Von Wyl v Engeler [1998] 3 NZLR 416 …. 5.58 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 …. 1.26, 2.41, 2.75, 4.39, 4.40, 4.41, 4.42, 4.43, 4.45, 4.46, 4.47, 4.49, 4.51, 4.53, 4.54, 4.56, 4.57, 4.71, 4.75, 4.86, 5.41, 16.7, 18.10, 18.12, 23.11, 23.13 VTB Capital plc v Nutritek International Corp [2013] 2 AC 337 …. 4.36, 4.50 Vucicevic v Aleksic [2017] EWHC 2335 …. 22.24

V

V v B (A Minor) (Abduction) [1991] 1 FLR 266 …. 10.63 Vadala v Lawes (1890) 25 QBD 310 …. 5.28 Valkama v Jamieson (1994) 11 SR (WA) 246 …. 4.79, 4.80 Valve Corporation v Australian Competition and Consumer Commission (2017) 351 ALR 584; [2017] FCAFC 224 …. 17.17, 17.50, 17.51, 18.13 Van Rensburg and Paquay, Marriage of (1993) 16 Fam LR 680 …. 15.25, 15.28, 15.61, 15.71 Van Vogt v All Canadian Group Distributors Ltd (1969) 71 WWR 535 …. 4.11 Vanquelin v Bouard (1863) 15 CB (NS) 341; 143 ER 817 …. 14.50 Varley, Estate of [2007] SASC 420 …. 20.7 Vautin v BY Winddown, Inc (No 2) [2016] FCA 1235 …. 4.25 Velasco v Coney [1934] P 143 …. 22.46

W

W v W [2001] 2 WLR 674 …. 13.11 — v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 …. 15.47 Wahbe Tamari & Sons Co v Bernhard Rothfos Beteiligungsgesellschaft mbH [1980] 2 Lloyd’s Rep 553 …. 8.3, 17.25 Wakim, Re; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 …. 2.29, 2.30, 4.60, 12.30, 12.36, 15.2, 15.20, 23.1 Walker v Newmont Australia Ltd [2010] FCA 298 …. 2.16 — v WA Pickles Pty Ltd [1980] 2 NSWLR 281 …. 9.1, 9.2, 9.30 liv



Table of Cases

Wall v Mutuelle de Poitiers Assurances [2014] EWCA Civ 138 …. 7.31 Walpole v Canadian Northern Railways Co [1923] AC 113 …. 7.13 Walsh v R [1894] AC 144 …. 20.14 Walton and Esposito [2006] FamCA 336 …. 14.5 Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society (1934) 50 CLR 581 …. 8.3, 12.11, 12.20, 17.25 Ward Group Pty Ltd v Brodie & Stone plc (2005) 143 FCR 479; [2005] FCA 471 …. 2.75, 17.50, 18.14 Ward’s Case (1625) Latch 4; 82 ER 245 …. 1.20 Warren v Warren [1972] Qd R 386 …. 18.4, 18.37 Warren & Horodecki [2016] FamCA 875 …. 16.4, 16.7 Warrender v Warrender (1835) 2 Cl & Fin 488; 6 ER 1239 …. 10.20, 13.16 Warter v Warter (1890) 15 PD 152 …. 13.40 Waterhouse v Australian Broadcasting Corp (1989) 86 ACTR 1 …. 4.69 Waterhouse & Allen v Australian Broadcasting Corp (1992) 27 NSWLR 1 …. 12.32, 12.34 Watkins v North American Land and Timber Co (Ltd) (1904) 20 TLR 534 …. 2.10 Watson & Godfrey v Cameron (1928) 40 CLR 446 …. 2.19 Wawanesa Mutual Insurance Co v Lindblom (2001) 200 DLR (4th) 123 …. 18.41 Wayland, Estate of [1951] 2 All ER 1041 …. 22.5 WDR Delaware Corp v Hydrox Holdings Pty Ltd [2016] FCA 1164 …. 6.5 Webb (decd), In the Estate of; Webb v Rogers (1992) 57 SASR 193 …. 19.4, 19.28 Weber, Ex parte [1916] 1 AC 421 …. 10.51 Weber v Aidone (1981) 36 ALR 345 …. 2.22, 2.23 Weckstrom v Hyson [1966] VR 277 …. 2.60, 8.3, 17.15 Weinstock v Sarnat [2005] NSWSC 744 …. 22.13 Weiss, Estate of, Re [1962] P 136 …. 22.16

Welex AG v Rosa Maritime Ltd, The Epsilon Rosa [2003] 2 Lloyd’s Rep 509 …. 4.90 Wellington, Duke of, Re [1946] Ch 118 …. 3.10 Wellington, Duke of, Re [1947] Ch 506 …. 8.31, 8.32 West Tankers Inc v Ras Riunione Adriatica Di Sicurta SpA [2005] EWHC 454 …. 18.41 Westacre Investments Inc v The State-Owned Company Yugoimport SDPR [2008] EWHC 801 …. 9.18 — v — [2009] 2 SLR 166 …. 9.18 Western Australia v Vetter Trittler Pty Ltd (in liq) (1991) 30 FCR 102 …. 2.40 WesTrac Pty Ltd v Eastcoast OTR Tyres Pty Ltd (2008) 219 FLR 461; [2008] NSWSC 894 …. 6.6 White v Hardwick (1922) 23 SR (NSW) 6 …. 2.16 — v Tennant 8 SE 596 (1888) …. 10.24 — v Verkouille [1990] 2 Qd R 191 …. 5.24 Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285 …. 23.12 Whitelegg, Goods of [1899] P 267 …. 22.10 Whittman v UCI Holdings Ltd [2016] NZHC 1228 …. 24.14 Whung v Whung (2011) 258 FLR 452; [2011] FamCA 137 …. 19.27 Whyalla Refineries Pty Ltd v Grant Thornton (a firm) (2001) 182 ALR 274; [2001] WASC 49 …. 4.69 Whyte v Rose (1842) 3 QB 493; 114 ER 596 …. 22.13 Wickham Freight Lines Ltd v Ferguson (2013) 83 NSWLR 162 …. 7.40 Wilding v Bean [1891] 1 QB 100 …. 2.39 Wilkinson v Kitzinger [2006] EWHC 2022 (Fam) …. 13.6, 13.31, 13.56 William Hare UAE LLC v Aircraft Support Industries Pty Ltd [2014] NSWSC 1403 …. 6.32, 6.33 Williams, Re [1945] VLR 213 …. 20.29 Williams v The Society of Lloyd’s [1994] 1 VR 274 …. 2.16, 2.75, 2.76 Williams and Glyn’s Bank Plc v Astro Dinamico Cia Naviera SA [1984] 1 All ER 760 …. 2.16 lv





Private International Law in Australia

Williamson v Osenton 232 US 619 (1914) …. 10.7, 10.11 Willoughby, an Infant, Re (1885) 30 Ch D 324 …. 15.18, 15.70 Wilson v Wilson [1903] P 157 …. 9.10 Wilson Electric Transformer Co Pty Ltd v Electricity Commission of New South les [1968] VR 330 …. 18.38 Wilton and Jarvis, Marriage of (1996) 133 FLR 355 …. 7.29 Winans v Attorney-General [1904] AC 287 …. 10.25 Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd [2011] NZLR 754 …. 2.79 Winkworth v Christie, Manson and Woods Ltd [1980] Ch 496 …. 21.11, 21.18 Winter v Winter [1984] 1 Ch 421 …. 2.86 Witten v Lombard Australia Ltd [1970] ALR 77 …. 4.53 Wolfenden v Wolfenden [1946] P 61 …. 13.26 Wolford & Attorney-General’s Department (Cth) [2014] FamCAFC 197 …. 15.44 Wong v Jani-King Franchising Inc [2014] QCA 76 …. 5.17, 5.58 — v Wei (1999) 65 BCLR (3d) 222 …. 7.41 Wood v Astra Resources Ltd [2016] FCA 1192 …. 24.8 Woodhead, In the Marriage of (1997) 23 Fam LR 559 …. 10.60 Woolworths Ltd v DS McMillan (SC(NSW), 29 February 1988, unreported) …. 17.24 Workcover Corp v Pross Chiyoda Pty Ltd [1999] SAWCT 86 …. 4.79 World Firefighters Games Brisbane v World Firefighters Games Western Australia Inc (2001) 161 FLR 355; [2001] QSC 164 …. 4.69, 4.74, 4.75 Worth v Worth [1931] NZLR 1109 …. 14.13 Wu, In the Marriage of (1994) FLC 92-477 …. 10.28 Wynn, Re [1983] 3 All ER 310 …. 22.20

X, Y and Z v The Bank [1983] 2 Lloyd’s Rep 535 …. 17.16 XL Insurance Ltd v Owens Corning [2000] 2 Lloyd’s Rep 500 …. 4.90 XPlore Technologies Corp of America v Tough Corp Pty Ltd [2008] NSWSC 1267 …. 5.22, 5.29

Y

Yarham v Transport Accident Commission [2017] NSWCA 301; (2017) 83 MVR 19 …. 18.46 Yates v Thompson (1835) 3 Cl & Fin 544 …. 22.25, 22.42 Ye v Zeng (No 5) [2016] FCA 850 …. 6.29 Yingling v Gifford [2016] NZHC 1556 …. 5.29 Yoder v Yoder 3330 A 2d 825 (1974) …. 1.34 Yoon v Song (2000) 158 FLR 295; [2000] NSWSC 1147 …. 5.29 Young, Re [1942] VLR 4 …. 20.29 Young JR v Buccaneer Energy Ltd [2014] FCA 711 …. 24.8 Yperion Technology SAS v Luminex Pty Ltd [2012] FCA 554 …. 4.23, 4.25

Z

Z487 Ltd v Skelton [2014] QSC 309 …. 4.8 Zanda & Zanda [2014] FamCAFC 173 …. 15.27 Zao and Gong [2018] FamCA 379 …. 16.4 Zardo v Ivancic (2003) 149 ACTR 1 …. 7.40 Zegna & Zegna [2015] Fam CA 345 …. 15.15 Zeta-PDM Ltd v Petro Technology Australia Pty Ltd [2011] WASC 338 …. 5.57 Zhang v Shanghai Wool and Jute Textile Co Ltd (2006) 201 FLR 178; [2006] VSCA 133 …. 6.14 — v Zemin (2010) 79 NSWLR 513; [2010] NSWCA 255 …. 3.13, 3.15, 3.26 Zivnostenska Banka National Corp v Frankman [1950] AC 57 …. 7.13, 17.4, 17.17, 18.47 ZP v PS (1994) 122 ALR 1 …. 15.26 Zwillinger v Schulof [1963] VR 407 …. 2.16

X

X, In the Marriage of (1983) 65 FLR 132 …. 13.28 X v Attorney-General of New Zealand [2017] 3 NZLR 115 …. 3.17, 3.26 lvi

Table of Statutes References are to paragraphs Australian Citizenship Amendment (Allegiance to Australia) Act 2015 ….  10.46, 10.47 Australian Citizenship Legislation Amendment Act 2002 …. 10.33, 10.45 s 2 …. 10.45 Sch 1 …. 10.45 Australian Consumer Law 2010 …. 2.76, 2.80, 4.20, 4.23, 4.26, 6.7, 17.12, 17.49, 17.50, 18.31 Pt 3-2, Div 1 …. 12.7, 17.12, 17.51 Pt 5-3 …. 17.50 s 18 …. 6.5, 6.6 s 18(1) …. 2.80, 4.18, 17.50, 18.13, 18.31 s 23 …. 4.26 s 60 …. 18.30, 18.45 s 64 …. 4.20, 17.53 s 67 …. 17.51 s 67(a) …. 12.7, 17.12, 17.51 s 67(b) …. 17.12, 17.51 Australian Crime Commission Act 2002 s 29 …. 7.34 Australian Securities and Investments Commission Act 2001 …. 23.4 Bankruptcy Act 1966 …. 22.15 ss 247–252JC …. 22.15 Bills of Exchange Act 1909 …. 7.10 Building and Construction Industry Security of Payment Act 1999 s 34 …. 4.20 Carriage of Goods by Sea Act 1991 …. 17.12, 17.46 s 11(1) …. 12.7 s 11(2) …. 4.6, 6.13 Child Support (Registration and Collection) Act 1988 …. 16.18, 16.20, 16.21, 16.22, 16.23 s 3(1)(c) …. 16.18

COMMONWEALTH

Australian Citizenship Act 1948 …. 10.35, 12.14 s 17 …. 10.43, 10.44, 10.45, 10.53 s 17(2) …. 10.43 s 25(1) …. 10.37 Australian Citizenship Act 2007 …. 10.35, 15.5 s 12 …. 10.37 s 13 …. 10.38 ss 15A–19A …. 10.39 s 16(3) …. 10.39 s 19C(1)–(2) …. 10.38 s 19C(2)(b) …. 10.38 s 19C(3) …. 10.38 s 19C(4) …. 10.38 s 20 …. 10.40 ss 21–28 …. 10.40 s 24(3)–(8) …. 10.40 s 25 …. 10.41 s 27 …. 10.53 s 29(3) …. 10.44 s 29(3)(a)(i) …. 10.45 s 30(4) …. 10.44 s 30(5) …. 10.44 s 30(6) …. 10.44 s 33 …. 10.47 s 33AA …. 10.47 s 33AA(2) …. 10.47 s 33AA(9) …. 10.47 ss 33AA(10)–(23) …. 10.47 s 34(1) …. 10.48 s 34(2) …. 10.48 s 34(3)(b) …. 10.48 s 34A …. 10.48 s 35 …. 10.46 s 35AA …. 10.46 s 36 …. 10.42 Sch 1 …. 10.53 Australian Citizenship Amendment Act 1984 …. 10.35 lvii



Private International Law in Australia

Child Support (Registration and Collection) Act 1988 — cont’d s 18A …. 16.20 s 25(1)–(1A) …. 16.20 s 25A(4) …. 16.20 s 26 …. 16.20 s 30(1) …. 16.20 s 36 …. 16.20 s 38A …. 16.20 s 38C …. 16.20 Child Support (Registration and Collection) Regulations 2018 reg 5 …. 16.20 Sch 1 …. 16.22 Sch 2 …. 16.20 Civil Aviation (Carriers’ Liability) Act 1959 …. 2.79 Commonwealth of Australia Constitution Act (Australian Constitution) …. 1.25, 1.26, 2.18, 2.24, 2.29, 5.21, 11.2, 11.9, 11.12, 11.14, 11.16, 11.17, 11.18, 11.26, 11.27, 13.7, 18.2 s 44(i) …. 10.49, 10.52 s 51(xx) …. 23.1 s 73(ii) …. 4.62 s 75 …. 2.18 s 75(iv) …. 2.18, 2.19, 2.20, 10.58 s 109 …. 11.9 s 117 …. 11.2, 11.18, 11.21, 11.22, 11.23, 11.24, 11.25 s 118 …. 1.25, 5.69, 5.71, 9.29, 11.2, 11.3, 11.4, 11.5, 11.7, 11.8, 11.9, 11.10, 11.11, 11.12, 11.13, 11.14, 11.16, 11.17, 11.18, 11.19, 11.20, 11.23, 11.24, 12.28, 12.29, 17.13, 18.28, 19.11 s 122 …. 17.52, 23.1 Competition and Consumer Act 2010 ….  2.30, 2.79, 17.50 Pt IX …. 17.50 Pt XI …. 17.50 s 5 …. 17.50 s 5(1) …. 2.79, 12.7 Sch 2 …. 2.80, 4.20, 12.7, 17.12, 18.13 Competition and Consumer (Industry Codes — Franchising) Regulation 2014 Sch 1 …. 4.27 Consular Privileges and Immunities Act 1972 …. 3.28

s 9 …. 3.28 s 9(2) …. 3.34 s 12 …. 3.31 Corporations Act 2001 …. 1.8, 2.12, 20.16, 23.1, 23.2, 23.4, 23.5, 23.7, 23.8, 23.9, 23.10, 23.18, 24.29 Ch 5 …. 24.5, 24.11, 24.25 Pt 5.7 …. 24.23, 24.25, 24.26, 24.27 Pt 5.7B, Div 2 …. 24.17 Pt 5B.2 …. 24.27 Pt 5B.2 Div 2 …. 24.23 Pt 9.6A, subdiv C …. 4.59 s 9 …. 23.4, 24.25 s 21 …. 24.25 s 109 …. 2.12 s 109X …. 23.4 s 117(2)(g) …. 23.4 s 119A …. 2.12, 23.4 s 135 …. 20.16 s 232 …. 4.18 ss 232–233 …. 23.10 s 233 …. 4.18 s 237 …. 4.18, 23.10 s 459P(1)(b) …. 24.31 s 580 …. 24.23 s 581 …. 24.4 s 581(2) …. 24.22 s 581(2)(a) …. 24.23 s 581(2)(b) …. 24.23 s 581(3) …. 24.23 s 581(4) …. 24.24 s 582(3) …. 23.18, 24.26 s 583 …. 24.31 s 601CD …. 2.12 ss 601CD–601CF …. 23.4 ss 601CDA–601CF …. 23.5 s 601CL …. 24.5 s 601CL(14)(a) …. 24.27 s 601CL(14)(b) …. 24.27 s 601CL(15)(a) …. 24.27 s 601CL(15)(b) …. 24.27 s 601CL(15)(c) …. 24.27 s 601CL(16) …. 24.27 s 1072F(1) …. 20.16 s 1317H …. 4.18, 23.10 ss 1337B–1337E …. 23.7 s 1337B(3) …. 23.8 s 1337C …. 23.8 s 1337E(2) …. 23.7 lviii



Table of Statutes

s 1337H(1)–(2) …. 23.8 s 1337H(3) …. 23.8 s 1337J(1)–(2) …. 23.8 s 1337J(3) …. 23.8 s 1337K(1)–(3) …. 23.9 s 1337K(4)–(5) …. 23.9 Corporations Regulations 2001 reg 5B.2.05 …. 23.5 reg 5.6.74 …. 24.23 Credit (Commonwealth Powers) Acts 2010 …. 17.52 Cross-border Insolvency Act 2008 …. 24.4 s 6 …. 9.16, 24.1 s 8(b) …. 24.5 s 12(2) …. 24.6, 24.30 s 16(b) …. 24.11 s 17(1)(b) …. 24.17 s 22 …. 24.4 Diplomatic Privileges and Immunities Act 1967 …. 3.28 s 7(2) …. 3.34 s 11(a) …. 3.30 s 11(b) …. 3.30 s 14 …. 3.29 Domicile Act 1982 …. 10.4 s 3 …. 10.5 s 4 …. 10.9 s 5 …. 10.4 s 6 …. 10.21 s 7 …. 10.16, 10.19, 10.31 s 9(1) …. 10.19 s 9(2) …. 10.19 s 10 …. 10.26 s 11 …. 10.9 Domicile (Consequential Amendments) Act 1982 ss 3–4 …. 10.20 Electronic Transactions Act 1999 s 14B(1)(b) …. 2.52 Evidence Act 1995 …. 9.23 s 5 …. 9.30 s 143 …. 9.30 s 174 …. 9.23 s 175 …. 9.24 s 185 …. 5.69, 9.29, 11.3 Evidence (Transitional Provisions and Consequential Amendments) Act 1995 s 3 …. 5.69, 11.3

Family Law Act 1975 …. 10.20, 10.55, 10.63, 10.64, 13.1, 13.43, 14.2, 14.16, 14.29, 14.47, 15.1, 15.13, 15.14, 15.16, 15.29, 15.58, 15.62, 16.5, 16.9, 16.13, 16.16, 16.18, 16.19, 16.22, 16.23 Pt II, Div 4 …. 6.5 Pt VII …. 15.1, 15.2, 15.19, 15.20, 15.33, 15.35, 15.60, 15.61, 15.67, 15.72, 15.73, 15.74, 15.75 Pt VII, Div 13 …. 15.2, 15.67, 15.73 Pt XIIIAA, Div 4, Subdiv C …. 15.13 Pt XIIIAA, Div 4 …. 15.8, 15.13 Div 13 …. 15.73, 15.74, 15.75, 15.78 s 3(2)(a) …. 14.17 s 3(2)(b)–(c) …. 14.16 s 4 …. 10.55, 10.63 s 4(1) …. 10.63, 14.2, 14.17, 15.73 s 4(1)(a) …. 13.4, 14.2 s 4(1)(b) …. 13.4 s 4(3)(b) …. 10.20 s 4AA(1) …. 16.2 s 4AA(5) …. 16.2 s 6 …. 13.20 s 34 …. 16.8 s 39 …. 15.19 s 39(1)(a) …. 14.11, 16.12 s 39(1A) …. 14.11 s 39(1A)–(2) …. 16.12 s 39(3) …. 14.4 s 39(3)(a) …. 14.38 s 39(4) …. 14.5, 14.38, 16.4 s 39(8) …. 14.11, 16.12 s 39B …. 16.13 s 39F …. 16.13 s 41 …. 14.11, 16.12 s 48 …. 14.13, 14.37 s 51 …. 13.39, 13.43, 13.52, 14.14 s 53 …. 14.13 s 60CA …. 15.25 s 61D …. 15.1 s 61D(1) …. 15.68 s 63B …. 15.1 s 64B(1)–(6) …. 15.68 s 64B(2)(b) …. 15.57 s 64B(4) …. 15.57 s 65AA …. 15.25, 15.59 s 65C …. 15.4 s 65D(1) …. 15.68 ss 65DAA–65DAB …. 15.68 lix





Private International Law in Australia

Family Law Act 1975 — cont’d s 67Q …. 15.71 s 67U …. 15.71 s 69E …. 15.1, 15.8, 15.13 s 69E(1) …. 15.4, 15.5, 15.7 s 69E(1)(a) …. 15.7 s 69E(1)(b) …. 15.18 s 69E(1)(b)–(e) …. 15.14 s 69E(1)(e) …. 15.18 s 66F …. 16.5 s 69H …. 15.19 s 69J …. 15.19 s 69K …. 15.7, 15.19 s 69N …. 15.19 ss 69P–69Q …. 10.13 s 69ZE(1) …. 15.2 s 69ZE(2) …. 15.2 s 69ZG …. 15.2 s 69ZH …. 15.2 s 69ZH(2) …. 15.6 s 69ZH(4) …. 15.2, 15.73 s 69ZK …. 15.1 s 70G …. 15.73, 15.74 s 70H …. 15.75 s 70J …. 15.75 s 70J(1) …. 15.75 s 70J(2) …. 15.76 s 70K …. 15.77 s 70L(5) …. 15.77 s 70L(6) …. 15.77 s 70M …. 15.78 s 103 …. 14.16 s 104 …. 14.19 s 104(1) …. 14.27 s 104(2) …. 14.29 s 104(3) …. 14.19, 14.20, 14.21, 14.40, 14.49 s 104(3)(a) …. 14.26 s 104(3)(b) …. 14.27 s 104(3)(c) …. 14.28, 14.40, 14.41 s 104(3)(d) …. 14.30, 14.39 s 104(3)(e)–(f) …. 14.31 s 104(4)(a) …. 14.44 s 104(4)(b) …. 14.47 s 104(5) …. 14.19, 14.22, 14.23, 14.38, 14.44, 14.47 s 104(8) …. 14.40, 14.41 s 104(9) …. 13.46 s 104(10) …. 14.19

s 104A …. 14.19 s 110 …. 16.18, 16.19 s 110A …. 16.18 s 110B …. 16.18 s 111 …. 16.18 s 111AA …. 16.18, 16.22 s 111AA(2) …. 16.9, 16.22 s 111AB …. 16.18 s 111B …. 15.1, 15.29 s 111CA …. 15.14 ss 111CA–111D …. 15.1 s 111CA(1) …. 15.9, 15.14, 15.62 s 111CB …. 15.13 s 111CB(1) …. 15.1 s 111CB(2) …. 15.16 s 111CD …. 15.4, 15.8, 15.14 s 111CD(3) …. 15.15 s 111CD(4) …. 15.16 s 111CE …. 15.16 s 111CF …. 15.17 s 111CG(2) …. 15.24 s 111CH(1) …. 15.23 s 111CH(3) …. 15.23 s 111CH(5) …. 15.23 s 111CR(2) …. 15.66 s 111CR(3) …. 15.66 s 111CS(2) …. 15.63 s 111CS(3) …. 15.63 s 111CS(4) …. 15.63 s 111CS(5)(a) …. 15.63 s 111CS(5)(b) …. 15.63 s 111CS(5)(c) …. 15.63 s 111CS(6) …. 15.65 s 111CS(7) …. 15.64 s 111CS(8) …. 15.64 s 111CT(2)(a) …. 15.72 s 111CT(2)(b) …. 15.72 s 119 …. 18.37 Sch 1 …. 15.14 Family Law Amendment Act 1991 …. 15.2 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 …. 16.2 Family Law (Bilateral ArrangementsIntercountry Adoption) Regulations 1998 …. 10.38 Sch 1 …. 10.38 lx



Table of Statutes

Family Law (Child Abduction Convention) Regulations 1986 …. 9.16, 15.1, 15.29, 15.35, 15.40, 15.73 reg 2(1) …. 15.57 reg 4(2) …. 15.40 reg 4(3) …. 15.40 reg 5 …. 15.34 reg 6 …. 15.35 regs 8–9 …. 15.34 reg 10 …. 15.32 reg 10(b) …. 15.32 reg 11 …. 15.34 reg 12(2)(a) …. 15.72 reg 13 …. 15.34 reg 14 …. 15.7 reg 14(1) …. 15.36 reg 14(2) …. 15.36 reg 15(1) …. 15.44 reg 15(2) …. 15.42 reg 15(4) …. 15.42 reg 16 …. 15.37 reg 16(1) …. 15.41 reg 16(2) …. 15.42 reg 16(2)(c) …. 15.42 reg 16(3) …. 15.45, 15.56 reg 16(3)(a)(i) …. 15.46 reg 16(3)(a)(ii) …. 15.47 reg 16(3)(b) …. 15.48 reg 16(3)(c) …. 15.54 reg 16(3)(c)(ii) …. 15.54 reg 16(3)(d) …. 15.55 reg 16(5) …. 15.56 reg 24 …. 15.58 regs 24–25 …. 15.34 reg 25 …. 15.36, 15.58 reg 29(5) …. 9.14 reg 29(5)(a) …. 15.40 Sch 2 …. 15.32 Family Law (Child Protection Convention) Regulations 2003 …. 15.1, 15.8 reg 2(1) …. 15.19 reg 3(3) …. 15.9 regs 5–9 …. 15.10 reg 6(2) …. 15.35 reg 10 …. 15.72 reg 11 …. 15.72 reg 12 …. 15.72 reg 12(4) …. 15.73 reg 14 …. 15.19

Sch 1 …. 15.9 Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 …. 10.38 Family Law Regulations 1984 …. 16.21, 16.23 reg 4(1) …. 15.73 reg 23 …. 15.74 reg 24 …. 15.78 reg 28B(3) …. 16.19 reg 28C …. 16.23 reg 28D(2) …. 16.23 reg 28D(3) …. 16.23 reg 28D(5) …. 16.23 regs 40–56 …. 16.21 reg 48 …. 16.21 reg 50(1) …. 16.21 reg 50(2) …. 16.21 reg 50A …. 16.21 reg 50A(3) …. 16.21 reg 53 …. 16.21 Sch 1A …. 15.73 Sch 4 …. 16.21 Federal Court of Australia Act 1976 s 54A …. 9.22 Federal Court Rules 2011 …. 2.1, 2.39, 2.79 Div 10.5 …. 2.100 Div 10.6 …. 2.97 r 7.37 …. 2.94 r 10.22 …. 2.14 r 10.24, item 18(b) …. 23.6 r 10.28 …. 2.95 r 10.42, item 1 …. 2.64 r 10.42, item 2 …. 2.56 r 10.42, item 3(a) …. 2.51 r 10.42, item 3(b) …. 2.54 r 10.42, item 3(c) …. 2.60 r 10.42, item 4 …. 2.66 r 10.42, item 5 …. 2.77 r 10.42, item 6 …. 2.84 r 10.42, item 7 …. 2.87 r 10.42, item 8 …. 23.6 r 10.42, item 12 …. 2.79 r 10.42, item 13 …. 2.79 r 10.42, item 14 …. 2.79 r 10.42, item 15 …. 2.79 r 10.42, item 16 …. 2.79 r 10.42, item 18(a) …. 2.48 r 10.42, item 18(b) …. 2.48 r 10.42, item 19 …. 2.49 lxi





Private International Law in Australia

Federal Court Rules 2011 — cont’d r 10.42, item 21 …. 2.81 r 10.42, item 23 …. 2.92 r 10.43(1)(a) …. 2.40 r 10.43(1)(b) …. 2.40 r 10.43(1)(c) …. 2.40 r 10.43(2)–(4) …. 2.100 r 10.43(4)(a) …. 2.40 r 10.43(4)(b) …. 2.40 r 10.43(4)(c) …. 2.40 r 10.43(6) …. 2.40 r 10.43(7) …. 2.40, 2.100 r 10.44 …. 2.93, 5.49 r 10.46 …. 2.101 r 10.65 …. 2.98 r 10.64 …. 2.98 r 10.65 …. 2.98 r 10.66 …. 2.98 rr 10.69–10.72 …. 2.98 rr 10.73–10.74 …. 2.99 r 10.75 …. 2.99 r 41.65 …. 5.49 Foreign Corporations (Application of Laws) Act 1989 …. 19.13, 23.1, 23.14, 23.15, 23.16, 23.17, 23.19, 23.20, 23.21, 23.22 s 3 …. 23.15 s 7 …. 23.15, 23.16 s 7(1) …. 23.15 s 7(2) …. 23.17 s 7(3)(a) …. 23.17, 23.19 s 7(3)(b) …. 23.20 s 7(3)(e) …. 23.20 s 7(3)(g) …. 19.13, 23.22 s 8(1) …. 23.16 Foreign Judgments Act 1991 …. 5.7, 5.8, 5.16, 5.29, 5.43, 5.44, 5.45, 5.46, 5.47, 5.48, 5.49, 5.50, 5.52, 5.53, 5.54, 5.55, 5.56, 5.57, 5.58, 5.60, 5.61, 5.67, 5.68, 5.72, 23.24 s 3(1) …. 5.46, 5.57, 5.67 s 5(1) …. 5.44 s 5(3) …. 5.44 s 5(4) …. 5.46 s 5(5) …. 5.46 s 5(6) …. 5.46 s 5(7) …. 5.46 s 6(1) …. 5.47 s 6(3) …. 5.47 s 6(6) …. 5.47 s 6(7) …. 5.50

s 6(8) …. 5.50 s 6(12) …. 5.47 s 7 …. 5.55, 5.58 s 7(1) …. 5.54 s 7(1)(a)(iv) …. 5.56 s 7(2)(a)(i)–(iii) …. 5.55 s 7(2)(a)(v) …. 5.64 s 7(2)(a)(vi) …. 5.63 s 7(2)(a)(vii) …. 5.55, 5.62 s 7(2)(a)(ix) …. 5.55 s 7(2)(a)(x) …. 5.55 s 7(2)(a)(xi) …. 5.67 s 7(2)(b) …. 5.68 s 7(3)(a)(i) …. 5.57 s 7(3)(a)(ii) …. 5.57 s 7(3)(a)(iii) …. 5.57 s 7(3)(a)(iv) …. 5.57 s 7(3)(a)(v) …. 5.57 s 7(3)(b) …. 5.60 s 7(3)(c) …. 5.61 s 7(4)(a) …. 5.56 s 7(4)(b) …. 5.56 s 7(4)(c) …. 5.56 s 7(5) …. 5.59 s 8 …. 5.54 s 8(1) …. 5.51 s 8(2)–(3) …. 5.51 s 8(4) …. 5.51 s 9 …. 3.22 s 10(1) …. 5.53 s 11 …. 5.16, 5.59 s 18 …. 5.7, 5.43 s 19(b) …. 5.7, 5.43 Foreign Judgments Regulations 1992 …. 5.44, 5.45, 23.24 reg 5 …. 5.45 Sch 1 …. 5.44 Foreign Proceedings (Excess of Jurisdiction) Act 1984 s 9 …. 5.38 Foreign States Immunities Act 1985 …. 3.12–3.27 s 3 …. 3.15 s 3(1) …. 3.16 s 9 …. 3.14, 3.22 s 10(2)–(3) …. 3.17 s 10(6)–(8) …. 3.17 s 10(9)(a) …. 3.17 s 11 …. 3.22 lxii



Table of Statutes

s 11(1) …. 3.18 s 11(2)(b) …. 3.21 s 11(3) …. 3.18, 3.21 s 12(1) …. 3.23 s 12(3) …. 3.23 s 12(5) …. 3.23 s 12(6) …. 3.23 s 13 …. 3.24 s 14(1)–(2) …. 3.25 s 15 …. 3.25 s 22 …. 3.21 s 30 …. 3.27 s 32(3) …. 3.27 s 35 …. 3.27 s 38 …. 3.13 s 40 …. 3.15 High Court Rules 2004 …. 2.1, 2.39, 2.79 r 9.01.1(a) …. 2.14 r 9.07 …. 23.6 r 9.07.1 …. 2.39 r 9.07.3 …. 2.43 r 23.03 …. 2.15 Insurance Contracts Act 1984 …. 4.20, 17.12, 17.48, 17.53 s 8 …. 12.7, 12.8, 17.12 s 8(1) …. 17.47 s 8(2) …. 12.8, 17.47, 17.53 s 43(1) …. 6.13 s 52 …. 17.53 s 52(1) …. 4.20 International Arbitration Act 1974 …. 6.1, 6.2, 6.24, 6.29, 6.36, 6.38, 6.40, 19.12 Pt II …. 6.3 s 3 …. 6.3 s 3(3) …. 6.2, 6.27 s 3(4) …. 6.3 s 3(5) …. 6.3 s 7 …. 6.2, 6.12 s 7(1) …. 6.2 s 7(2) …. 4.9, 6.4, 6.8 s 7(3) …. 6.8 s 7(4) …. 6.9 s 7(5) …. 4.9, 6.13, 6.20 s 8 …. 6.27 s 8(2) …. 6.28 s 8(3) …. 6.28 s 8(3A) …. 6.29 s 8(5) …. 6.28, 6.29, 6.30, 6.37 s 8(6) …. 6.33

s 8(7) …. 6.28, 6.29, 6.38 s 8(7)(a) …. 6.37 s 8(7)(b) …. 6.37 s 8(7A) …. 6.38 s 8(8) …. 6.35, 6.36 s 8(9) …. 6.36 s 8(10) …. 6.36 s 9(1) …. 6.28 s 9(3) …. 6.28 s 16 …. 6.23 s 16(1) …. 6.2 s 20 …. 6.26 s 21 …. 6.24, 6.25, 6.39 s 21(1) …. 6.25 s 21(2) …. 6.25 s 32 …. 6.40 s 35 …. 6.40 Sch 3 …. 6.40 International Arbitration Amendment Act 2010 Sch 1, item 28 …. 6.3 Judiciary Act 1903 s 44 …. 2.22 s 79 …. 2.21 s 80 …. 2.21, 3.6, 18.16 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 2.28, 4.59, 4.62, 4.71, 4.74, 4.75, 4.76, 4.81, 5.5 s 3(2) …. 2.30 s 4 …. 2.28, 2.34, 12.36 s 4(1) …. 2.30 s 4(1)(b) …. 12.36 s 4(2) …. 2.30 s 4(2)(b) …. 12.36 s 5 …. 2.28 4.59, 4.63, 4.64, 4.76 s 5(7) …. 4.61 s 8(1) …. 4.76 s 9(2) …. 2.30 s 11 …. 2.28, 12.30 s 11(1) …. 12.35 s 11(1)(a) …. 12.30 s 11(1)(b) …. 12.30, 12.31, 12.32, 12.33, 12.34, 12.35, 12.36 s 11(1)(c) …. 7.29, 12.35 s 11(3) …. 4.59 s 13(a) …. 4.62 Marine Insurance Act 1909 s 3 …. 20.27 s 9(2)(a) …. 20.27 lxiii





Private International Law in Australia

Marriage Act 1961 …. 1.8, 10.20, 12.1, 13.1, 13.3, 13.5, 13.6, 13.7, 13.8, 13.9, 13.11, 13.13, 13.14, 13.18, 13.21, 13.41, 13.43, 13.44, 13.47, 13.50, 13.53, 13.54, 13.58 Pt III, Div 2 …. 13.48, 13.58 Pt V …. 13.54, 13.57 Pt VA …. 13.21, 13.50, 13.51, 13.52, 13.55, 13.56, 13.57, 13.58, 13.59 s 5 …. 13.5, 13.8 s 5(1) …. 13.6, 13.10, 13.11, 13.14, 13.54 s 5(4)(b) …. 10.20 ss 10–14 …. 13.8 s 10(1)(b) …. 13.42, 13.45 ss 11–21 …. 13.42 s 22 …. 13.3, 13.21 s 23(1)(c) …. 13.44 s 23(1)(d) …. 13.8, 13.42 s 23(2) …. 13.42 s 23(3) …. 13.42 s 23A(1) …. 13.48 s 23A(1)(a) …. 13.48, 13.58 s 23A(1)(b) …. 13.54 s 23B(1) …. 13.48 s 23B(1)(d) …. 13.8, 13.42 s 23B(2) …. 13.42 s 23B(3) …. 13.42 s 48 …. 13.44 s 55 …. 13.47 s 56(1) …. 13.47 s 65 …. 13.54 s 71(1) …. 13.54 s 88 …. 13.54 s 88B(4) …. 13.6, 13.11 s 88C …. 13.21 s 88C(1)(a) …. 13.50, 13.52 s 88C(1)(b) …. 13.53 s 88C(2) …. 12.5 s 88C(2)(a) …. 13.52 s 88C(2)(b) …. 13.53 s 88D …. 13.52 s 88D(1) …. 12.5, 13.50, 13.52, 13.53, 13.55 s 88D(2) …. 12.5, 13.52 s 88D(2)–(3) …. 13.52, 13.53 s 88D(2)(a) …. 13.55 s 88D(2)(d) …. 13.8 s 88D(3) …. 13.52 s 88D(4) …. 13.52, 13.55 s 88D(4)(b) …. 13.53

s 88E(1) …. 13.3, 13.21, 13.50, 13.55 s 88E(2) …. 13.55 s 88E(3) …. 13.57 s 88EA …. 13.51 s 88F …. 13.58 s 91 …. 10.11 s 104(6) …. 13.54 Marriage Amendment Act 1985 …. 22.33 Marriage Amendment Act 2004 …. 13.5 Marriage Amendment (Definition and Religious Freedoms) Act 2017 …. 13.1, 13.3, 13.6, 13.7, 13.10, 13.51 s 3, Sch 1 …. 13.6, 13.10 Matrimonial Causes Act 1959 …. 10.8, 13.1, 14.2, 14.16 National Consumer Credit Protection Act 2009 …. 17.52, 17.53 s 12(2) …. 17.52 s 18(2) …. 17.52 s 21(1)–(3) …. 17.52 s 21(2) …. 17.52 s 21(3)(a) …. 17.52 s 21(4) …. 17.52 s 334(1) …. 17.53 s 334(3) …. 17.53 s 334(4) …. 17.53 Nationality and Citizenship Act 1948 …. 10.35 Papua New Guinea Independence (Australian Citizenship) Regulations reg 4 …. 10.42 Personal Property Securities Act 2009 …. 21.3, 21.15, 21.35 s 235(1) …. 20.26 s 235(2) …. 20.26 ss 238–241 …. 21.19 s 238(1) …. 21.12 s 238(2) …. 21.12 s 238(3) …. 21.12, 21.19 s 239(1) …. 21.35 s 239(2) …. 21.35 s 240(1) …. 21.35 s 240(4) …. 21.35 Service and Execution of Process Act 1901 …. 1.24, 2.24, 2.25, 2.32, 2.39, 2.78 s 4 …. 1.23 s 11 …. 1.23, 2.25 s 21 …. 1.23 lxiv



Table of Statutes

Service and Execution of Process Act 1992 …. 1.23, 2.12, 2.24, 2.25, 2.26, 2.27, 2.33, 2.39, 2.102, 4.48, 4.55, 4.59, 5.5, 5.7, 5.8, 5.21, 5.50, 5.54, 5.69, 5.75, 11.6 Pt 6 …. 5.72 s 3 …. 2.26 s 3(1) …. 5.72 s 8(4) …. 2.33 s 9 …. 2.12, 23.4 s 12 …. 1.23, 2.26 s 14 …. 2.26 s 15 …. 1.23, 2.12, 2.26 s 16 …. 2.26 s 17 …. 2.26 s 20 …. 4.55 s 20(3) …. 4.77, 4.79, 4.80 s 20(4) …. 4.78 s 20(5) …. 4.80 s 21 …. 4.93 s 105 …. 1.23 s 105(1) …. 5.73, 5.74 s 105(2) …. 5.74 s 105(5) …. 5.74 s 105(6) …. 5.73 s 106 …. 5.75 s 109 …. 1.23, 5.75 State and Territorial Laws and Records Recognition Act 1901 s 18 …. 5.69, 5.70, 5.71, 11.3 Trade Marks Act 1995 …. 2.79 Trade Practices Act 1974 …. 6.7, 12.22, 18.30, 18.45 s 52 …. 6.6 s 52(1) …. 2.80, 4.18, 18.13, 18.31 s 67 …. 18.30 s 74(1) …. 12.22, 18.30, 18.45 Trans-Tasman Proceedings Act 2010 …. 1.4, 1.23, 2.37, 2.38, 2.103, 4.7, 4.8, 4.9, 4.26, 4.55, 4.57, 5.6, 5.47, 5.77, 14.18, 14.24, 16.7, 16.10, 16.16, 16.22, 23.5, 23.10, 23.26, 24.7 Pt 7 …. 5.6, 5.43, 5.77 s 4 …. 2.38, 14.18, 16.22 s 9(1) …. 2.38 s 9(2) …. 2.95 ss 17–19 …. 14.9 s 17(1) …. 4.26 s 19 …. 16.10, 23.9 s 19(1) …. 4.56, 14.9 s 19(2) …. 4.56

s 19(2)(d) …. 4.26, 4.56 s 19(2)(f) …. 4.56 s 20 …. 4.57, 4.96 s 20(1)(a) …. 4.9 s 20(1)(b) …. 4.8, 4.9 s 20(2) …. 4.9 s 20(2A) …. 4.8 s 20(3) …. 4.8 s 20(3)(b) …. 4.7, 4.26 s 20(3)(c) …. 4.7, 4.26 s 21(1) …. 4.7, 4.55, 4.57 s 21(2) …. 4.7, 4.55 s 22 …. 16.11 s 22(1) …. 4.95 s 22(2) …. 4.95 s 24 …. 4.56 s 66(1) …. 5.77 s 66(1)(c)–(d) …. 23.26 s 66(2) …. 5.77 s 66(2)(a) …. 14.18, 16.22 ss 67–68 …. 14.18 s 72(1) …. 5.77 s 79(2) …. 5.77 s 79(2)(c) …. 23.26 Trans-Tasman Proceedings Regulation 2012 reg 15(1) …. 23.26 reg 16 …. 24.7 Trusts (Hague Convention) Act 1991 …. 19.18 s 6 …. 19.18 s 7 …. 19.18 s 7(1) …. 19.26

AUSTRALIAN CAPITAL TERRITORY

Administration and Probate Act 1929 s 9(2) …. 2.88, 22.5 s 80 …. 22.11 Birth (Equality of Status) Act 1988 s 5 …. 10.11 Civil Law (Wrongs) Act 2002 …. 3.7, 18.18, 18.26 Pt 9.2 …. 18.18 s 15 …. 18.33 s 24 …. 18.34 s 123(5) …. 18.18 s 220 …. 3.7 s 220(1)–(2) …. 3.7 s 220(2) …. 3.7 s 220(3) …. 3.7 lxv





Private International Law in Australia

Civil Partnerships Act 2008 s 15 …. 13.59 Civil Partnerships Regulation 2010 reg 4 …. 13.59 Civil Unions Act 2008 s 6(1) …. 13.13 s 6(b) …. 13.13 s 7(b) …. 13.13 s 7(d) …. 13.13 s 7(e) …. 13.13 s 9(1) …. 13.13 s 9(2) …. 13.13 s 10 …. 13.13 Civil Unions Act 2012 …. 13.59 ss 11–14 …. 14.3 ss 12–14 …. 14.12 s 21 …. 14.3 s 27 …. 13.59 Court Procedures Rules 2006 …. 2.1 Div 6.8.9 Note 3 …. 2.39 Div 6.8.12 …. 2.97 Subdiv 2.9.4.2 …. 2.94 r 111 …. 2.15 r 1000 …. 2.15 r 1179 …. 9.22 r 3307 …. 2.33 r 3479 …. 5.49 r 6463 …. 2.95 r 6464 …. 2.14 r 6501(1)(g)(ii) …. 2.63 r 6501(1)(s) …. 2.46 r 6502 …. 2.34, 2.39, 2.94 r 6502(a) …. 18.10 r 6502(a)(i) …. 2.67 r 6502(a)(ii) …. 2.67, 2.77 r 6502(b)(i) …. 2.51 r 6502(b)(ii) …. 2.54 r 6502(b)(iii) …. 2.55 r 6502(b)(iv) …. 8.60, 8.62 r 6502(c) …. 2.56 r 6502(d)(i) …. 2.92 r 6502(d)(ii) …. 2.92 r 6502(d)(iii) …. 2.93 r 6502(e) …. 2.81, 2.84 r 6502(f) …. 2.86 r 6502(g) …. 2.48 r 6502(i) …. 2.89 r 6502(j) …. 2.79 r 6502(k) …. 2.49 r 6502(l) …. 2.50, 2.87

r 6502(m) …. 2.50, 2.90 r 6502(n) …. 2.64 r 6502(o) …. 23.6 r 6502(p) …. 2.79 r 6502(q)(ii)–(iii) …. 2.91 r 6503 …. 2.42, 2.45 r 6503(5) …. 2.42 r 6504(2) …. 2.45 r 6504(2)(b) …. 4.51 r 6508 …. 5.49 r 6507 …. 2.43 r 6509 …. 2.101 r 6509(1) …. 2.101 r 6510 …. 2.100 r 6551 …. 2.98 r 6553 …. 2.98 r 6554 …. 2.98 r 6555 …. 2.98 rr 6558–6561 …. 2.98 rr 6562–6563 …. 2.99 r 6564 …. 2.99 Evidence Act 2011 s 143 …. 9.30 s 174 …. 9.23, 9.24 s 176 …. 9.27 Foreign Judgments Act 1954 …. 5.43 Jurisdiction of Courts (Cross-vesting) Act 1993 …. 2.28, 4.59, 4.62, 4.71, 4.74, 4.75, 4.76, 4.81 s 4 …. 2.34, 12.36 s 5 …. 4.59, 4.63, 4.64, 4.76 s 8(1) …. 4.76 s 11 …. 12.30 s 11(1) …. 12.35 s 11(1)(a) …. 12.30 s 11(1)(b) …. 12.30, 12.31, 12.32, 12.33, 12.34, 12.35, 12.36 s 11(1)(c) …. 7.29, 12.35 Legislation Act 2001 s 169(1) …. 10.14 Limitation Act 1985 ss 55–57 …. 7.48 Parentage Act 2004 s 11(4) …. 10.13 s 11(5) …. 10.14 s 38 …. 10.11 s 38(2) …. 10.11 Road Transport (Third-Party Insurance) Act 2008 Pt 2.7 …. 18.35 lxvi



Table of Statutes

Sale of Goods (Vienna Convention) Act 1987 …. 2.52, 2.53, 17.47 Wills Act 1968 …. 22.1 Pt 3B …. 22.22 s 15A …. 22.37 ss 15A–15H …. 22.19 s 15D(1)(c) …. 22.31 s 15D(2) …. 22.50 s 20 …. 22.33 s 20A …. 22.33

NEW SOUTH WALES

Administration and Probate Act 1969 s 14(2) …. 2.88 Building and Construction Industry Security of Payments Act 1999 s 34 …. 17.53 Children (Equality of Status) Act 1976 …. 10.11 Choice of Law (Limitation Periods) Act 1993 …. 7.48 Civil Liability Act 2002 …. 12.22, 18.26, 18.30 Pt 4 …. 7.37 s 5N …. 18.30 s 5N(1) …. 12.22 Civil Procedure Act 2005 s 64(3) …. 7.29 Commonwealth Powers (Family Law– Children) Act 1986 …. 15.2 Commonwealth Powers (De Facto Relationships) Act 2003 …. 2.30, 16.2 Compensation to Relatives Act 1897 s 3 …. 18.34 Contracts Review Act 1980 …. 2.36 s 11(1)(b) …. 2.36 Corporations (Commonwealth Powers) Act 2001 s 4 …. 23.1 ss 5–6 …. 23.1 Conveyancing Act 1919 …. 12.27 Credit (Commonwealth Powers) Acts 2010…. 17.52 Defamation Act 2005 …. 18.18, 18.21 s 11(1) …. 18.19 s 11(2) …. 18.20 s 11(3) …. 18.20 s 11(4) …. 18.21 s 11(5) …. 18.18 Domicile Act 1979 …. 10.4 s 3 …. 10.9

s 4 …. 10.4 s 5 …. 10.21 s 6 …. 10.16, 10.19, 10.31 s 8(1) …. 10.19 s 8(2) …. 10.19 s 9 …. 10.26 s 10 …. 10.9 Dust Diseases Tribunal Act 1989 …. 4.70 s 11A …. 7.42 s 32 …. 7.52 Electronic Transactions Act 2000 s 13B(1)(b) …. 2.52 Evidence Act 1995 …. 9.23 s 143 …. 9.30 s 174 …. 9.23 s 175 …. 9.24 Foreign Judgments Act 1973 …. 5.43 Further Remedies to Creditors Act 1855 …. 1.23 Industrial Relations Act 1996 s 106(1) …. 12.21 Insurance Act 1902 s 19 …. 6.13 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 2.28, 4.59, 4.62, 4.71, 4.74, 4.75, 4.76, 4.81, 5.71 s 4 …. 2.28, 2.34, 2.35, 12.36 s 4(3) …. 2.30 s 4(4) …. 2.30 s 5 …. 2.28, 4.59, 4.63, 4.64, 4.76 s 5(7) …. 4.61 s 8(1) …. 4.76 s 9 …. 2.30 s 11 …. 2.28, 12.30 s 11(1) …. 12.35 s 11(1)(a) …. 12.30 s 11(1)(b) …. 12.30, 12.31, 12.32, 12.33, 12.34, 12.35 s 11(1)(c) …. 7.29, 12.35 s 11(3) …. 4.59 s 13(a) …. 4.62 Jurisdiction of Courts (Foreign Land) Act 1989 …. 2.35 s 3 …. 3.8 s 4 …. 3.8 Law Reform (Miscellaneous Provisions) Act 1944 s 2 …. 18.33 Legal Profession Act 2004 s 143 …. 23.22

lxvii





Private International Law in Australia

Moratorium Act 1930 …. 11.4 Motor Accidents Compensation Act 1999 …. 7.41 Pt 2.4 …. 18.35 NSW Trustee and Guardian Act 2009 …. 2.35 Probate and Administration Act 1898 s 107 …. 22.11 Protected Estates Act 1983 …. 5.71 s 13 …. 2.35 Relationships Register Act 2010 ss 4–5 …. 13.13 s 4(1) …. 13.13 s 5 …. 13.13 s 5(1) …. 13.13 s 5(2) …. 13.13 s 5(3) …. 13.13 s 5(3)(c) …. 13.13 s 9 …. 13.13 ss 10–15 …. 14.3 ss 11–13 …. 14.12 s 14 …. 14.12 s 14(1)(b)–(c) …. 13.13 s 16 …. 13.59 Relationships Register Regulation 2010 reg 4 …. 13.59 Sale of Goods (Vienna Convention) Act 1986 …. 2.52, 2.53, 17.2, 17.47 Sch 1, Art 18(2) …. 2.52 Status of Children Act 1996 s 5 …. 10.11 s 6 …. 10.11 s 14(1)(a) …. 10.13 s 14(1A) …. 10.14 s 14(2) …. 10.14 Succession Act 2006 …. 22.1 Pt 2.4A …. 22.22 s 12 …. 22.33 s 13 …. 22.33 s 47 …. 22.37 ss 47–50 …. 22.19 s 48(1) …. 22.37 s 48(2)(c) …. 22.31 s 48(3) …. 22.50 s 64 …. 22.34, 22.48 Transport Accidents Compensation Act 1987 …. 11.23 Trustee and Guardian Act 2009 s 41 …. 2.35 Uniform Civil Procedure Rules 2005 …. 2.1 lxviii

Pt 11A …. 2.97 r 6.9 …. 2.15 r 6.44(1) …. 9.18 r 6.44(2) …. 9.19, 9.21 r 6.45 …. 9.20 r 10.3(3) …. 2.39 r 10.6 …. 2.95 r 10.13 …. 2.14 r 11.3 …. 2.39 r 11.4 …. 2.15 r 11.4(1) …. 2.39 r 11.5 …. 2.42 r 11.5(5) …. 2.42 r 11.6 …. 2.101 r 11.6(2) …. 2.45 r 11.6(2)(b) …. 4.51 r 11.7 …. 2.45 r 11.8AA …. 2.43 r 11.8AB …. 5.49 rr 11.9–11.11 …. 2.100, 2.101 r 11A.2 …. 2.98 r 11A.4 …. 2.98 r 11A.5 …. 2.98 r 11A.6 …. 2.98 rr 11A.9–11A.12 …. 2.98 rr 11A.13–11A.14 …. 2.99 r 11A.15 …. 2.99 r 12.11 …. 2.15 r 20.14 …. 9.19, 9.22 r 25 …. 5.24 r 25.16 …. 2.94 r 53.6 …. 5.49 Sch 6 …. 2.34 Sch 6(a) …. 18.10 Sch 6(a)(i) …. 2.67 Sch 6(a)(ii) …. 2.67, 2.77 Sch 6(b)(i) …. 2.51 Sch 6(b)(ii) …. 2.54 Sch 6(b)(iii) …. 2.55 Sch 6(b)(iv) …. 2.60, 2.62 Sch 6(c) …. 2.56 Sch 6(d)(i) …. 2.92 Sch 6(d)(ii) …. 2.92 Sch 6(d)(iii) …. 2.93 Sch 6(e) …. 2.81, 2.84 Sch 6(f) …. 2.86 Sch 6(g) …. 2.48 Sch 6(i) …. 2.89 Sch 6(j) …. 2.79

Table of Statutes

Sch 6(k) …. 2.49 Sch 6(l) …. 2.50, 2.87 Sch 6(m) …. 2.50, 2.90 Sch 6(n) …. 2.64 Sch 6(p) …. 2.79 Sch 6(q)(ii)–(iii) …. 2.91 Sch 6(s) …. 2.46

s 4 …. 10.11 s 5D(1) …. 10.13 s 5D(1)(b) …. 10.14 s 5DA(1) …. 10.14 Supreme Court Act s 26 …. 9.22 Supreme Court Rules 1987 …. 2.1 O 7A …. 2.97 r 6.08 …. 2.14 r 6.13 …. 2.95 r 7.01 …. 2.39 r 7.01(1)(a) …. 2.82 r 7.01(1)(b) …. 2.84 r 7.01(1)(d) …. 2.89 r 7.01(1)(e) …. 2.86 r 7.01(1)(f)(i) …. 2.51 r 7.01(1)(f)(ii) …. 2.54 r 7.01(1)(f)(iii) …. 2.60 r 7.01(1)(g) …. 2.56 r 7.01(1)(h) …. 2.49 r 7.01(1)(j) …. 2.66 r 7.01(1)(k) …. 2.77, 2.92 r 7.01(1)(o) …. 2.79 r 7.01(1)(p) …. 2.85 r 7.02(1)(a) …. 2.40 r 7.02(1)(b) …. 2.40 r 7.02(1)(c) …. 2.40, 2.48 r 7.02(2)(a) …. 2.40 r 7.02(2)(b) …. 2.40 r 7.02(2)(c) …. 2.40 r 7.02(5)(c) …. 2.40 r 7.03 …. 2.93, 2.101 r 7.05 …. 2.45 rr 7.08–7.09 …. 2.101 rr 7.09–7.14 …. 2.100 r 7A.02 …. 2.98 r 7A.04 …. 2.98 r 7A.05 …. 2.98 r 7A.06 …. 2.9 rr 7A.09–7A.12 …. 2.98 rr 7A.13–7A.14 …. 2.99 r 7A.15 …. 2.99 r 8 …. 2.15 r 8.08 …. 2.15 r 37A.07 …. 2.94 r 89.07(1) …. 2.33 Supreme Court Rules 2012 r 7.03 …. 5.49 r 94.07 …. 5.49

NORTHERN TERRITORY

Administration and Probate Act 1969 s 14(2) …. 22.5 s 111 …. 22.11 Choice of Law (Limitation Periods) Act 1994 …. 7.48 Compensation (Fatal Injuries) Act 1974 s 7(1) …. 18.34 Defamation Act 2006 …. 18.21 s 10(5) …. 18.18 Domicile Act …. 10.4 Evidence (National Uniform Legislation) Act …. 9.23 s 143 …. 9.30 s 174 …. 9.23 s 175 …. 9.24 s 176 …. 9.27 Foreign Judgments Act 1955 …. 5.43 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 2.28, 4.59, 4.62, 4.71, 4.74, 4.75, 4.76, 4.81 s 4 …. 2.34, 12.36 s 5 …. 4.59, 4.63, 4.64, 4.76 s 8(1) …. 4.76 s 11 …. 12.30 s 11(1) …. 12.35 s 11(1)(a) …. 12.30 s 11(1)(b) …. 12.30, 12.31, 12.32, 12.33, 12.34, 12.35, 12.36 s 11(1)(c) …. 7.29, 12.35 Law Reform (Miscellaneous Provisions) Act 1956 Pt II …. 18.33 Motor Accidents (Compensation) Act 1979 …. 11.8, 18.35 Personal Injuries (Civil Claims) Act 2007 …. 18.26 Personal Injuries (Liabilities and Damages) Act 2002 …. 18.26 Sale of Goods (Vienna Convention) Act 1987 …. 2.52, 2.53, 17.47 Status of Children Act lxix





Private International Law in Australia

Wills Act 2000 …. 22.1 Pt 5A …. 22.22 s 14 …. 22.33 s 15 …. 22.33 s 45 …. 22.37 ss 45–48 …. 22.19 s 46(4) …. 22.31 s 46(5) …. 22.50 s 47 …. 22.37

Domicile Act 1981 …. 10.4 Evidence Act 1977 …. 9.23 s 68 …. 9.23 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 2.28, 4.59, 4.62, 4.71, 4.74, 4.75, 4.76, 4.81 s 3 …. 2.35 s 4 …. 2.34, 12.36 s 5 …. 4.59, 4.63, 4.64, 4.76 s 8(1) …. 4.76 s 11 …. 12.30 s 11(1) …. 12.35 s 11(1)(a) …. 12.30 s 11(1)(b) …. 12.30, 12.31, 12.32, 12.33, 12.34, 12.35, 12.36 s 11(1)(c) …. 7.29, 12.35 Motor Accident Insurance Act 1994 s 33 …. 18.35 Motor Vehicle Insurance Act 1936 …. 7.19 s 20 …. 11.23, 11.24 Personal Injuries Proceedings Act 2002 …. 18.26 s 7(1) …. 18.27 Reciprocal Enforcement of Judgments Act 1959 …. 5.43, 5.48, 5.65 Sale of Goods (Vienna Convention) Act 1986 …. 2.52, 2.53, 17.47 Status of Children Act 1978 s 3 …. 10.11 s 17(2)(b) …. 10.14 s 18(2)(b) …. 10.14 s 19(2) …. 10.13 ss 19A–19G …. 10.14 s 19C(2) …. 10.14 s 19E(4) …. 10.14 s 21(1) …. 10.14 s 22(2) …. 10.14 s 23(4) …. 10.14 Succession Act 1981 …. 22.1 Div 6A …. 22.22 s 5 …. 22.37 s 6(2) …. 2.88, 22.5 s 14 …. 22.33 s 15 …. 22.33 ss 33T–33Y …. 22.19 s 33T(2)(c) …. 22.50 s 33T(2)(d) …. 22.31 s 66 …. 18.33 Uniform Civil Procedure Rules 1999 …. 2.1

QUEENSLAND

Auctioneers and Agents Act 1922 …. 12.17, 17.10, 17.12 s 11 …. 17.12 British Probates Act 1898 s 4 …. 22.11 Choice of Law (Limitation Periods) Act 1996 …. 7.48 Civil Liability Act 2003 …. 18.26 Civil Partnerships Act 2011 s 4(1) …. 13.13 s 5(a) …. 13.13 s 5(b) …. 13.13 s 5(c) …. 13.13 s 7 …. 13.13 s 9(1)(a) …. 13.13 ss 14–19 …. 14.3 s 15 …. 14.12 s 30 …. 14.3 s 33(2) …. 13.59 s 44 …. 14.3 Civil Partnerships Regulation 2012 reg 4 …. 13.59 Civil Proceedings Act 2011 s 64 …. 18.34 Common Law Practice Act 1867 …. 1.23 Commonwealth Powers (De Facto Relationships) Act 2003 …. 2.30 Commonwealth Powers (Family Law– Children) Act 1990 …. 15.2 Corporations (Commonwealth Powers) Act 2001 s 4 …. 23.1 ss 5–6 …. 23.1 Credit (Commonwealth Powers) Acts 2010 …. 17.52 Defamation Act 2005 …. 18.21 s 11(5) …. 18.18 lxx



Table of Statutes

Pt 7, Div 1 …. 2.39 Pt 7, Div 3 …. 2.97 r 55 …. 2.33 r 115 …. 2.14 r 119 …. 2.95 r 124(1) …. 2.39 r 124(1)(a) …. 2.64 r 124(1)(b)(i) …. 2.81 r 124(1)(c) …. 2.84 r 124(1)(d) …. 2.48 r 124(1)(e)(i) …. 2.89 r 124(1)(f) …. 2.86 r 124(1)(g)(i) …. 2.51 r 124(1)(g)(ii) …. 2.63 r 124(1)(g)(iii) …. 2.54 r 124(1)(g)(iv) …. 2.60 r 124(1)(h) …. 2.56 r 124(1)(i) …. 2.49 r 124(1)(k) …. 2.66 r 124(1)(l) …. 2.77 r 124(1)(m) …. 23.6 r 124(1)(o) …. 2.92 r 124(1)(q) …. 2.79 r 124(1)(r) …. 2.49 r 124(1)(t) …. 2.79 r 124(1)(t)(ii) …. 2.79 r 124(1)(u) …. 2.79 r 124(1)(x) …. 2.46 r 126 …. 2.45 r 127(b) …. 2.93, 5.49 r 129(1) …. 2.101 r 129(2) …. 2.101 r 130 …. 2.100 r 130B …. 2.98 r 130D …. 2.98 r 130E …. 2.98 r 130F …. 2.98 rr 130I–130L …. 2.98 rr 130M–130N …. 2.99 r 130O …. 2.99 rr 135–137 …. 2.15 r 144 …. 2.15 r 144(4) …. 2.15 r 260F …. 2.94 r 501 …. 9.22 r 947J …. 5.49 Workers’ Compensation and Rehabilitation Act 2003 s 324(1) …. 18.8

SOUTH AUSTRALIA

Administration and Probate Act 1919 ss 17–19 …. 22.11 Commonwealth Powers (De Facto Relationships) Act 2009 …. 2.30, 16.2 s 4(1)(b) …. 16.2 Commonwealth Powers (Family Law) Act 1986 …. 15.2 Corporations (Commonwealth Powers) Act 2001 s 4 …. 23.1 ss 5–6 …. 23.1 Civil Liability Act 1936 …. 18.26 s 23 …. 18.34 Credit (Commonwealth Powers) Acts 2010 …. 17.52 Defamation Act 2005 …. 18.21 s 11(5) …. 18.18 Domicile Act 1980 …. 10.4 Evidence Act 1929 …. 9.23 s 63 …. 9.23, 9.24 s 63A …. 9.27 Family Relationships Act 1975 s 6 …. 10.11 s 10C(3) …. 10.13 s 10C(3)(a) …. 10.14 s 10C(4) …. 10.14 Foreign Judgments Act 1971 …. 5.43 Further Remedies to Creditors Act 1856 …. 1.23 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 2.28, 4.59, 4.62, 4.71, 4.74, 4.75, 4.76, 4.81 s 4 …. 2.34, 12.36 s 5 …. 4.59, 4.63, 4.64, 4.76 s 8(1) …. 4.76 s 11 …. 12.30 s 11(1) …. 12.35 s 11(1)(a) …. 12.30 s 11(1)(b) …. 12.30, 12.31, 12.32, 12.33, 12.34, 12.35, 12.36 s 11(1)(c) …. 7.29, 12.35 Limitation of Actions Act 1936 ss 38–38A …. 7.48 Motor Vehicles Act 1959 ss 115–116 …. 18.35 Relationships Register Act 2016 s 4 …. 13.13 ss 4–5 …. 13.13 s 5(2) …. 13.13 lxxi





Private International Law in Australia

Relationships Register Act 2016 — cont’d s 5(3)(d) …. 13.13 s 5(4) …. 13.13 s 8 …. 13.13 s 9 …. 13.13 ss 10–14 …. 14.3 s 14(1)(b)–(c) …. 13.13 s 14(3) …. 14.12 s 26(1) …. 13.59 s 65A …. 13.59 Relationships Regulations 2016 reg 7 …. 13.59 Sale of Goods (Vienna Convention) Act 1986 …. 2.52, 2.53, 17.47 Supreme Court Act 1935 s 67 …. 9.22 Supreme Court Civil Rules 2006 …. 2.1 Ch 3, Pt 4, Div 4 …. 2.97 r 40 …. 2.39 r 40(1) …. 2.39 r 40A …. 2.34 r 40A(a)(i) …. 2.67, 18.10 r 40A(a)(ii) …. 2.67, 2.77 r 40A(b)(i) …. 2.51 r 40A(b)(ii) …. 2.54 r 40A(b)(iii) …. 2.55 r 40A(b)(iv) …. 2.60, 2.62 r 40A(c) …. 2.56 r 40A(d)(i) …. 2.92 r 40A(d)(ii) …. 2.92 r 40A(d)(iii) …. 2.93 r 40A(e) …. 2.81, 2.84 r 40A(f) …. 2.86 r 40A(g) …. 2.48 r 40A(i) …. 2.89 r 40A(j) …. 2.79 r 40A(k) …. 2.49 r 40A(l) …. 2.50, 2.87 r 40A(m) …. 2.50, 2.90 r 40A(n) …. 2.64 r 40A(o) …. 23.6 r 40A(p) …. 2.79 r 40A(q)(ii)-(iii) …. 2.91 r 40A(s) …. 2.46 r 40B …. 2.42 r 40B(5) …. 2.42 r 40C(2) …. 2.45 r 40C(2)(b) …. 4.51 r 40F …. 2.43

r 40G …. 5.49 r 40H …. 2.101 r 41(2) …. 2.101 r 41B …. 2.98 r 41D …. 2.98 r 41E …. 2.98 r 41F …. 2.98 rr 41I–41L …. 2.98 rr 41M–41N …. 2.99 r 41O …. 2.99 r 67(1)(c) …. 2.14 r 67(1)(d) …. 2.95 r 92 …. 2.15 r 92(3)(a) …. 2.15 r 247(7) …. 2.94 r 346(7) …. 5.49 Survival of Causes of Action Act 1940 s 2 …. 18.33 Wills Act 1936 …. 22.1 Pt 3A …. 22.22 s 20 …. 22.33 s 20A …. 22.33 s 25A …. 22.37 ss 25A–25D …. 22.19 s 25C(c) …. 22.31 s 25C(d) …. 22.50

TASMANIA

Administration and Probate Act 1935 s 48 …. 22.11 Administration and Probate Act 1958 s 27 …. 18.33 Alternative Dispute Resolution Act 2001 s 3 …. 9.22 s 5 …. 9.22 Civil Liability Act 2002 …. 18.26 Commonwealth Powers (De Facto Relationships) Act 2006 …. 16.2 Commonwealth Powers (Family Law) Act 1987 …. 15.2 Corporations (Commonwealth Powers) Act 2001 s 4 …. 23.1 ss 5–6 …. 23.1 Credit (Commonwealth Powers) Acts 2009 …. 17.52 Defamation Act 2005 …. 18.21 s 11(5) …. 18.18 Domicile Act 1980 …. 10.4 lxxii



Table of Statutes

Evidence Act 2001 …. 9.23 s 143 …. 9.30 s 174 …. 9.23 s 175 …. 9.24 s 176 …. 9.27 Fatal Accidents Act 1934 s 4 …. 18.34 Foreign Judgments Act 1963 …. 5.43 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 2.28, 3.6, 4.59, 4.62, 4.71, 4.74, 4.75, 4.76, 4.81 s 4 …. 2.34, 12.36 s 4(3) …. 3.6 s 5 …. 4.59, 4.63, 4.64, 4.76 s 8(1) …. 4.76 s 11 …. 12.30 s 11(1) …. 12.35 s 11(1)(a) …. 12.30 s 11(1)(b) …. 12.30, 12.31, 12.32, 12.33, 12.34, 12.35, 12.36 s 11(1)(c) …. 7.29, 12.35 Limitation Act 1974 ss 32A–32D …. 7.48 Motor Accidents (Liabilities and Compensation) Act 1973 s 16 …. 18.35 Relationships Act 2003 s 4 …. 13.13 s 4(1)(a) …. 13.13 s 4(1)(b) …. 13.13 s 7 …. 13.13 ss 10–12 …. 14.12 s 11 …. 13.13 s 11(1)(b) …. 13.13 s 13(3)(a) …. 13.13 ss 15–17 …. 14.3 ss 15–18 …. 14.12 s 65A …. 13.59 Relationships Regulations 2013 reg 8 …. 13.59 Remedies to Creditors Act 1857 …. 1.23 Sale of Goods (Vienna Convention) Act 1987 …. 2.52, 2.53, 17.47 Status of Children Act 1974 s 3 …. 10.11 s 10C(1) …. 10.13 s 10C(1A) …. 10.14 s 10C(2) …. 10.14 s 10C(3)–(5) …. 10.14

Supreme Court Rules 2000 …. 2.1 Pt 38A …. 2.97 r 134 …. 2.14 r 147 …. 2.100, 2.101 r 147(3) …. 2.39 r 147A …. 2.34, 2.39 r 147A(a)(i) …. 2.67, 18.10 r 147A(a)(ii) …. 2.67, 2.77 r 147A(b)(i) …. 2.51 r 147A(b)(ii) …. 2.54 r 147A(b)(iii) …. 2.55 r 147A(b)(iv) …. 2.60, 2.62 r 147A(c) …. 2.56 r 147A(d)(i) …. 2.92 r 147A(d)(ii) …. 2.92 r 147A(d)(iii) …. 2.93 r 147A(e) …. 2.81, 2.84 r 147A(f) …. 2.86 r 147A(g) …. 2.48 r 147A(i) …. 2.89 r 147A(j) …. 2.79 r 147A(k) …. 2.49 r 147A(l) …. 2.50, 2.87 r 147A(m) …. 2.50, 2.90 r 147A(n) …. 2.64 r 147A(o) …. 23.6 r 147A(p) …. 2.79 r 147A(q)(i)-(ii) …. 2.91 r 147A(s) …. 2.46 r 147B …. 2.42, 2.45 r 147B(5) …. 2.42 r 147C(2) …. 2.45 r 147C(2)(b) …. 4.51 r 147F …. 2.43 r 147G …. 5.49 r 147H …. 2.101 rr 148–153 …. 2.100, 2.101 r 154 …. 2.15 r 168 …. 2.15 r 721 …. 5.49 r 781(6) …. 2.33 r 937G …. 2.94 r 970B …. 2.98 r 970D …. 2.98 r 970E …. 2.98 r 970F …. 2.98 rr 970I–970L …. 2.98 rr 970M–970N …. 2.99 r 970O …. 2.99 lxxiii





Private International Law in Australia

Wills Act 2008 …. 22.1 Pt 5A …. 22.22 s 16 …. 22.33 s 17 …. 22.33 ss 60–62 …. 22.19 s 60(2)(c) …. 22.31 s 60(2)(d) …. 22.50 s 61 …. 22.37

VICTORIA

Administration and Probate Act 1958 …. 18.33 s 29 …. 18.33 s 88(4) …. 22.11 Choice of Law (Limitation Periods) Act 1993 …. 7.48 Commercial Arbitration Act 1984 …. 6.1 Commercial Arbitration Act 2011 …. 6.1 Commonwealth Powers (De Facto Relationships) Act 2004 …. 16.2 Commonwealth Powers (Family Law– Children) Act 1986 …. 15.2 Corporations (Commonwealth Powers) Act 2001 s 4 …. 23.1 ss 5–6 …. 23.1 Credit (Commonwealth Powers) Acts 2010 …. 17.52 Defamation Act 2005 …. 18.21 s 11(5) …. 18.18 Domicile Act 1978 …. 10.4 Evidence Act 2008 …. 9.23 s 143 …. 9.30 s 174 …. 9.23 s 175 …. 9.24 s 176 …. 9.27 Financial Emergency Act 1931 …. 12.12, 12.24, 17.34 Foreign Judgments Act 1962 …. 5.43 Further Remedies to Creditors Act 1858 …. 1.23 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 2.28, 4.59, 4.62, 4.71, 4.74, 4.75, 4.76, 4.81 s 4 …. 2.34, 12.36 s 5 …. 4.59, 4.63, 4.64, 4.76 s 8(1) …. 4.76 s 11 …. 12.30 s 11(1) …. 12.35

s 11(1)(a) …. 12.30 s 11(1)(b) …. 12.30, 12.31, 12.32, 12.33, 12.34, 12.35, 12.36 s 11(1)(c) …. 7.29, 12.35 Relationships Act 2008 s 3 …. 13.13 s 5 …. 13.13 s 6 …. 13.13 s 10 …. 13.13 s 10(3)(a) …. 13.13 ss 11–16 …. 14.3, 14.15 Sale of Goods (Vienna Convention) Act 1987 …. 2.52, 2.53, 17.47 Status of Children Act 1974 s 3 …. 10.11 s 10C(2)(b) …. 10.14 s 10D(2)(a) …. 10.13 s 10D(2)(b) …. 10.14 s 10D(2)(d) …. 10.14 s 10E(2)(c)(d)(i) …. 10.13 s 10E(2)(d) …. 10.14 s 10E(2)(f) …. 10.14 ss 11–16 …. 10.14 s 13(1)(c) …. 10.14 s 14(1)(c) …. 10.14 s 15(1)(b) …. 10.14 s 16(1)(b) …. 10.14 Supreme Court (General Civil Procedure) Rules 2005 r 7.08 …. 5.49 Supreme Court (General Civil Procedure) Rules 2015 …. 2.1 O 80 …. 2.97 r 6.09 …. 2.14 r 6.14 …. 2.95 r 7.01 …. 2.39 r 7.02 …. 2.34, 2.39, 2.94 r 7.02(a)(i) …. 2.67, 18.10 r 7.02(a)(ii) …. 2.67, 2.77 r 7.02(b)(i) …. 2.51 r 7.02(b)(ii) …. 2.54 r 7.02(b)(iii) …. 2.55 r 7.02(b)(iv) …. 2.60, 2.62 r 7.02(c) …. 2.56 r 7.02(d)(i) …. 2.92 r 7.02(d)(ii) …. 2.92 r 7.02(d)(iii) …. 2.93 r 7.02(e) …. 2.84 r 7.02(f) …. 2.86 lxxiv



Table of Statutes

r 7.02(g) …. 2.48 r 7.02(j) …. 2.79 r 7.02(k) …. 2.49 r 7.02(l) …. 2.50, 2.87 r 7.02(m) …. 2.50, 2.90 r 7.02(n) …. 2.64 r 7.02(o) …. 23.6 r 7.02(s) …. 2.46 r 7.02(p) …. 2.79 r 7.03 …. 2.42, 2.101 r 7.03(5) …. 2.42 r 7.04 …. 2.45 r 7.04(2) …. 2.45 r 7.04(2)(b) …. 4.51 r 7.07 …. 2.43 rr 7.09–7.14 …. 2.100, 2.101 r 8.03 …. 2.15 r 8.08 …. 2.15 r 37A.07 …. 2.94 r 50.01 …. 9.22 r 80.02 …. 2.98 r 80.04 …. 2.98 r 80.05 …. 2.98 r 80.06 …. 2.98 rr 80.09–80.12 …. 2.98 rr 80.13–80.14 …. 2.99 r 80.15 …. 2.99 Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 r 11.07 …. 5.49 Transport Accidents Act 1986 …. 11.17, 11.25, 12.14, 18.38, 18.39 s 96 …. 18.35 Wills Act 1997 …. 22.1 Pt 2, Div 7 …. 22.22 s 13 …. 22.33 s 14 …. 22.33 ss 17–19 …. 22.19 s 17(2)(c) …. 22.31 s 17(2)(d) …. 22.50 s 17(3) …. 22.50 s 18 …. 22.37 Workers’ Compensation Act 1928 …. 12.19 Wrongs Act 1958 …. 18.26, 18.34 s 16 …. 18.34

WESTERN AUSTRALIA

Administration Act 1903 s 6 …. 22.11

Artificial Conception Act 1985 s 6 …. 10.13 s 6A …. 10.14 s 7(2) …. 10.14 Choice of Law (Limitation Periods) Act 1994 …. 7.48 Civil Liability Act 2002 …. 18.26 Corporations (Commonwealth Powers) Act 2001 s 4 …. 23.1 ss 5–6 …. 23.1 Credit (Commonwealth Powers) Acts 2010 …. 17.52 Defamation Act 2005 …. 18.21 s 11(5) …. 18.18 Domicile Act 1981 …. 10.4 Evidence Act 1906 …. 9.23 s 53 …. 9.23, 9.30 s 70 …. 9.23 s 71 …. 9.23, 9.24 Family Court Act 1997 …. 15.2, 15.60, 16.5 Pt 5 …. 15.61, 15.67 s 35 …. 16.4 s 36 …. 15.19 s 43 …. 15.19 s 70(1) …. 15.68 s 84 …. 15.68 s 88 …. 15.6 s 89(1) …. 15.68 ss 89AA–89AB …. 15.68 s 118 …. 16.5 s 149 …. 15.71 s 153 …. 15.71 Fatal Accidents Act 1959 s 4 …. 18.34 Foreign Judgments Act 1963 …. 5.43 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 2.28, 4.59, 4.62, 4.71, 4.74, 4.75, 4.76, 4.81 s 4 …. 2.34, 12.36 s 4(1)–(3) …. 2.30 s 5 …. 4.59, 4.63, 4.64, 4.76 s 11 …. 12.30 s 11(1) …. 12.35 s 11(1)(a) …. 12.30 s 11(1)(b) …. 12.30, 12.31, 12.32, 12.33, 12.34, 12.35, 12.36 s 11(1)(c) …. 7.29, 12.35 lxxv





Private International Law in Australia

Law Reform (Miscellaneous Provisions) Act 1941 s 4 …. 18.33 Motor Vehicle (Third Party Insurance) Act 1943 s 7(3) …. 18.35 s 8(1) …. 18.35 Relief of Creditors Ordinance 1856 …. 1.23 Rules of the Supreme Court 1971 …. 2.1 O 9, r 1(2) …. 2.14 O 9, r 3 …. 2.95 O 10, r 1(1) …. 2.39, 2.40 O 10, r 1(1)(a)(i) …. 2.82 O 10, r 1(1)(a)(ii) …. 2.82 O 10, r 1(1)(b) …. 2.84 O 10, r 1(1)(c) …. 2.48 O 10, r 1(1)(d) …. 2.86, 2.89 O 10, r 1(1)(e)(i) …. 2.51 O 10, r 1(1)(e)(ii) …. 2.54 O 10, r 1(1)(e)(iii) …. 2.60 O 10, r 1(1)(f) …. 2.56 O 10, r 1(1)(g) …. 2.92 O 10, r 1(1)(j) …. 2.85 O 10, r 1(1)(k) …. 2.66 O 10, r 1(1)(l) …. 2.79 O 10, r 1A(3A) …. 2.39 O 10, r 2 …. 2.49 O 10, r 4(1) …. 2.40 O 10, r 7 …. 2.93, 2.94 , 5.49 O 10, rr 9–10 …. 2.101 O 10, r 9(2)–(5) …. 2.100 O 10, r 10(3)(a) …. 2.101 O 11, r 4 …. 2.40 O 11A …. 2.97 O 11A, r 2 …. 2.98 O 11A, r 4 …. 2.98 O 11A, r 5 …. 2.98 O 11A, r 6 …. 2.98 O 11A, rr 9–12 …. 2.98 O 11A, rr 13–14 …. 2.99 O 11A, r 15 …. 2.99 O 12 …. 2.15 O 12, r 6 …. 2.15 O 44, r 8(1) …. 5.49 O 44A r 8(1) …. 5.49 O 52A(7) …. 2.94 Sale of Goods (Vienna Convention) Act 1986 …. 2.52, 2.53, 17.47 Supreme Court Act 1935

s 50 …. 9.22 Wills Act 1970 …. 22.1 Pt XA …. 22.22 s 4 …. 22.37 s 14 …. 22.33 s 14A …. 22.33 ss 20–21 …. 22.19 s 20(2)(c) …. 22.31 s 20(2)(d) …. 22.50 s 21 …. 22.37

FEDERAL COUNCIL OF AUSTRALASIA

Australasian Civil Process Act 1886 …. 1.23, 2.24 Australasian Judgments Act 1886 …. 1.23

CANADA

Canadian Water Carriage of Goods Act 1910 …. 17.7 Court Jurisdiction and Proceedings Transfer Act …. 5.21

CUBA

Law 860 …. 8.50

EUROPE

European Convention on Human Rights …. 13.12 European Economic Area’s Lugano Convention …. 5.4, 21.28 European Union Convention on the Law Applicable to Contractual Obligations 1980 (Rome Convention) …. 17.3, 17.54, 17.55, 21.21 Art 1 …. 17.1 Art 3 …. 17.54 Art 4(1) …. 17.54 Art 4(2) …. 17.54 Art 4(3) …. 17.54 Art 4(4) …. 17.54 Art 5 …. 17.54 Art 6 …. 17.54 Art 20 …. 17.54 Regulation (EC) 864/2007 of the European Parliament and Council on the Law Applicable to Non-Contractual Obligations (Rome II Regulation) …. 7.41, 7.42, 18.3, 18.7 Art 4(1) …. 18.3 lxxvi



Table of Statutes

Art 4(2) …. 18.3 Art 4(3) …. 18.3 Art 15(c) …. 7.41 Art 24 …. 18.7 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2009 on the law applicable to contractual obligations (Rome I Regulation) …. 17.54 Art 3 …. 17.54 Art 4(1) …. 17.54 Art 4(1)(a) …. 17.54 Art 4(2) …. 17.54 Art 4(4) …. 17.54 Art 6 …. 17.54 Art 7 …. 17.54 Art 8 …. 17.54 Art 15 …. 17.54 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation recast) …. 5.4

INDIA

Special Marriages Act 1954 …. 13.50, 13.57

INTERNATIONAL

Agreement between the Government of Australia and the Government of New Zealand on Child and Spousal Maintenance 2000 …. 16.9, 16.18, 16.22 Art 7 …. 16.22 Agreement between the Government of Australia and the Government of the United States of America for the Enforcement of Maintenance (Support) Obligations 2002 …. 16.18, 16.23 Australia and New Zealand Closer Economic Relations Trade Agreement 1983 …. 5.43 Convention on the Settlement of Investment Disputes (ICSID Convention) …. 6.40 Art 52(1) …. 6.40 Convention Providing a Uniform Law on the Form of an International Will 1973 …. 22.22, 22.37

Art 1(2) …. 22.22 Art 3(1) …. 22.22 Art 4(1) …. 22.22 Art 5(1) …. 22.22 Art 9 …. 22.22 Art 12 …. 22.22 Annex Art 1(1) …. 22.22 Hague Child Abduction Convention 1980 …. 10.2, 10.62, 10.63, 10.64, 10.65, 10.66, 10.67, 10.68, 10.69, 15.1, 15.3, 15.7, 15.8, 15.10, 15.12, 15.16, 15.19, 15.21, 15.25. 15.27, 15.29, 15.33, 15.34, 15.37, 15.40, 15.47, 15.51, 15.52, 15.54, 15.57, 15.59, 15.60, 15.71 Art 1 …. 15.33 Art 3 …. 15.38, 15.39, 15.40 Art 5(a) …. 15.40 Art 5(b) …. 15.57 Art 4 …. 15.1, 15.30 Art 7 …. 15.34 Art 7(e) …. 15.40 Art 11 …. 15.42 Art 12 …. 15.37, 15.41, 15.42 Art 13 …. 15.41, 15.45, 15.54 Art 13(a) …. 15.46, 15.47 Art 13(b) …. 15.48 Art 18 …. 15.35 Art 20 …. 15.55 Art 21 …. 15.58 Hague Convention on Celebration and Recognition of the Validity of Marriages 1978 …. 13.2, 13.3, 13.21, 13.41, 13.48 Art 9 …. 13.2 Hague Convention on Choice of Court Agreements 2005 …. 2.103, 4.7, 4.96, 4.97, 17.57 Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption …. 10.38 Hague Convention on Recognition of Divorces and Legal Separations 1970 …. 14.19 Hague Convention on the Law Applicable to Maintenance Obligations 1973 …. 16.15 Art 4 …. 16.15 Hague Convention on the Law Applicable to Succession 1988 …. 22.56

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Hague Convention on the Law Applicable to Trusts and on their Recognition 1985 …. 19.18, 19.19, 19.20, 19.21, 19.22, 19.24, 19.25, 19.26, 19.28 Art 2 …. 19.19 Art 3 …. 19.18 Art 5 …. 19.21 Art 6 …. 19.20 Art 7 …. 19.21, 19.28 Art 8 …. 19.23 Art 9 …. 19.22 Art 10 …. 19.23 Art 15 …. 19.20, 19.24 Art 16 …. 19.20, 19.24 Art 17 …. 19.22 Art 18 …. 19.20, 19.24 Art 20 …. 19.19 Art 21 …. 19.19 Hague Convention on the Protection of Children 1996 (Child Protection Convention) …. 10.2, 10.54, 10.62, 10.63, 10.64, 10.65, 15.1, 15.2, 15.8, 15.9, 15.11, 15.12, 15.13, 15.14, 15.16, 15.17, 15.19, 15.20, 15.21, 15.22, 15.23, 15.24, 15.25, 15.37, 15.61, 15.62, 15.64, 15.65, 15.66, 15.72 Art 1(2) …. 15.62 Art 2 …. 15.11 Art 3 …. 15.14, 15.62 Art 4 …. 15.14, 15.62 Art 6 …. 15.13 Art 7 …. 15.14, 15.16, 15.17 Art 8 …. 15.24 Arts 8–9 …. 15.10 Art 8(2) …. 23 Art 20 …. 15.65 Arts 29–39 …. 15.10 Arts 30–31 …. 15.10 Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations 1973 …. 16.18 Hague Convention on the Recovery Abroad of Maintenance 1956 …. 16.18, 16.21 Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters 1965 (the Hauge Service Convention) …. 2.96, 2.97, 2.98, 2.99 Art 2 …. 2.97

Hague Principles on Choice of Law in International Commercial Contracts 2015 …. 17.1, 17.3, 17.57 Art 1(1) …. 17.57 Art 2(1) …. 17.57 Art 3 …. 17.1, 17.57 Art 4 …. 17.57 Art 8 …. 17.57 Hague-Visby Rules 1968 …. 17.46 Hague-Visby Rules 1979 …. 17.46 Hamburg Rules 1978 …. 17.46 International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, and Protocol of Signature …. 17.8 Treaty on Judicial Assistance in Civil and Commercial Matters between Australia and the Republic of Korea …. 9.17 art 27(1) …. 9.17 UNCITRAL Model Law on Cross-border Insolvency 1997 Art 2 …. 24.7 Art 2(3) …. 24.7 Art 2(j) …. 24.5 Art 6 …. 24.12 Art 9 …. 24.5 Art 11 …. 24.5 Art 12 …. 24.5 Art 13(1) …. 24.6 Art 13(2) …. 24.6, 24.30 Art 14 …. 24.5, 24.6 Art 15(1) …. 24.7 Art 16(3) …. 24.8 Art 17(2) …. 24.8 Art 19 …. 24.14, 24.15 Art 20 …. 24.11, 24.19 Art 21 …. 24.11, 24.13, 24.15 Art 21(2) …. 24.11 Art 22(1) …. 24.15 Art 22(3) …. 24.15 Art 23 …. 24.17 Art 25 …. 24.20, 24.21 Arts 25–27 …. 24.20 Art 26 …. 24.20, 24.21 Art 27 …. 24.21 Art 28 …. 24.18 Art 29 …. 24.19, 24.20 Art 29(a)(i) …. 24.19 Art 29(b)(i) …. 24.19 lxxviii



Table of Statutes

Art 29(a)(ii) …. 24.19 Art 29(b)(ii) …. 24.19 Art 32 …. 24.6 UNCITRAL Model Law on International Commercial Arbitration 1985 …. 6.16, 6.18, 6.19, 6.23, 6.24, 6.25, 6.26, 6.35, 6.39, 9.16 Art 1 …. 6.23, 6.39 Art 1(1) …. 6.23 Art 8 …. 6.2 Art 12 …. 6.23 Art 14 …. 6.23 Art 17H …. 6.35 Art 19 …. 6.25 Art 20(2) …. 6.21 Art 25(1) …. 9.16 Art 25(2) …. 9.16 Art 28(1) …. 6.16, 6.17 Art 28(2) …. 6.19 Art 28(3) …. 6.18 Art 34 …. 6.23 Art 35 …. 6.26, 6.39 Art 36 …. 6.26, 6.39 United Nations Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment Art 14(1) …. 3.26 United Nations Convention on Contracts for the International Sale of Goods 1980 …. 17.2, 17.47 Art 1(1) …. 17.2, 17.47 Art 6 …. 17.2, 17.47 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) …. 2.103, 4.12, 4.97, 6.2, 6.26, 6.27, 6.29 Art II(2) …. 6.3 Art III …. 6.27 Art V …. 6.27, 6.28 Art VI …. 6.27 Vienna Convention on Consular Relations 1963 …. 3.28 Art 1(d) …. 3.23 Art 1(e) …. 3.23 Art 1(f) …. 3.23 Art 43 …. 3.31, 3.32 Art 44 …. 3.32 Art 45(1)–(2) …. 3.34

Art 45(3) …. 3.34 Art 45(4) …. 3.34 Art 53(4) …. 3.33 Art 55(3) …. 3.33 Vienna Convention on Diplomatic Relations 1961 …. 3.28 Art 1(d) …. 3.23 Art 31(1) …. 3.30 Art 32(1)–(2) …. 3.34 Art 32(3) …. 3.34 Art 32(4) …. 3.34 Art 37(1) …. 3.29 Art 37(2) …. 3.29, 3.30 Art 37(3) …. 3.29, 3.30 Art 38(1) …. 3.30 Art 39(2) …. 3.33

IRAQ

Resolution 55 …. 8.67 Resolution 369 …. 8.60, 8.67, 8.68

NAURU

Nauruan Phosphate Royalties Trust Act s 32A …. 3.19

NEW ZEALAND

Accident Compensation Act 2001 …. 4.57 s 317 …. 4.57 s 319 …. 4.57 Australasian Creditors Act 1858 …. 1.23 Companies Act 1993 …. 23.26 Evidence Act 1908 …. 9.11 High Court Rules 2016 …. 2.47, 2.62 Historic Articles Act 1962 …. 8.52 Insolvency (Cross-border) Act 2006 …. 24.7 Limitation Act 2010 s 55 …. 7.48 Marriage Act 1955 …. 13.50, 13.56, 13.57 s 3(1) …. 13.56 Marriage (Definition of Marriage) Act 2013 s 5 …. 13.56 Matrimonial Causes (War Marriages) Act 1947 …. 14.17 Private International Law (Choice of Law in Tort) Act 2017 s 7(3) …. 18.7 Reciprocal Enforcement of Judgments Act 1934 …. 5.77 Securities Act 1978 …. 23.26

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Securities Markets Act 1988 …. 23.26 Takeovers Act 1993 …. 23.26 Trans-Tasman Proceedings Act 2010 …. 1.23, 2.95, 9.25 s 97(1) …. 9.25 s 97(2) …. 9.25 s 98 …. 9.25 s 99 …. 9.25 ss 100–102 …. 9.25

PEOPLE’S REPUBLIC OF CHINA

General Principles of Civil Law …. 9.6

SPAIN

Spanish Civil Code …. 7.23

UNITED KINGDOM

British Nationality Act 1981 …. 10.35 s 37 …. 10.35 Civil Jurisdiction and Judgments Act 1982 s 30(1) …. 3.7 Civil Partnership Act 2004 …. 13.59 s 214 …. 13.59 s 216 …. 13.59 Sch 20 …. 13.59 Common Law Procedure Act 1852 …. 2.24, 2.39 Contracts (Applicable Law) Act 1990 …. 17.54 Colonial Probates Act 1892 …. 22.11 Education Act 1962 …. 10.59 Employment Rights Act 1996 s 94(1) …. 12.15

Fatal Accidents Act 1976 …. 18.34 Foreign Judgments (Reciprocal Enforcement) Act 1933 …. 5.43, 5.44 Foreign Corporations Act 1991 …. 23.16 Foreign Marriages Act 1892 …. 13.50, 13.54, 13.57 Marriage Act 1753 (Lord Hardwicke’s Act) …. 13.26, 13.28 Matrimonial Causes (War Marriages) Act 1944 …. 14.17 Private International Law (Miscellaneous Provisions) Act 1995 Pt III …. 18.3 ss 5–7 …. 13.20 s 9(5) …. 18.7 s 11 …. 18.3 s 12 …. 18.3 s 13 …. 18.3 s 14(3)(b) …. 7.41 Official Secrets Act 1911 …. 8.53 Wills Act 1861 (Lord Kingdown’s Act) …. 22.36, 22.37 Wills Act 1963 …. 22.19, 22.36, 22.37

UNITED STATES OF AMERICA

Harter Act 1893 …. 17.7 Judiciary Act 1789 …. 2.18 Sherman Act …. 4.82, 4.83, 4.87 United States Code s 1738 title 28 …. 11.3 United States Constitution …. 5.21, 11.21 Art IV, s 1 …. 11.3 Art IV, s 2 …. 11.21

lxxx

PART 1 Introduction to Private International Law

Chapter 1 Scope, Development and Purpose Themes of private international law 1.1  Private international law is the body of principles, rules and, at times, policies and approaches that indicate how a foreign element in a legal problem or dispute should be dealt with. In most cases, legal questions are local, only involving people and circumstances within the one state or country. However, through migration, trade and communications, legal relationships increasingly cross state and national borders, giving rise to cross-border — or ‘multi-state’ — cases when a dispute occurs. Thus, a case before a court in New South Wales might involve a person who lives in Victoria, or it might relate to an event that occurred in Singapore. The action in New South Wales might be paralleled by an action in Singapore, or even be pre-empted by a judgment made there. In addressing multi-state cases like these, the law in common law and civil law countries has traditionally classified them as giving rise to one or more of three different issues: • jurisdiction: whether the local court — or ‘forum’ — has the power to hear and determine the case, or whether the contacts the case has with another state or country limit or otherwise restrain the forum court’s power or willingness to decide the case; • recognition and enforcement of foreign judgments: where the case has proceeded to judgment in the other state or country, whether that judgment can be recognised or enforced in the forum; and • choice of law: even if the forum court has — and will — exercise the jurisdiction to decide the case, whether it will decide the case in accordance with the law of the forum (lex fori), or in accordance with the law of the other state or country. Is the forum or foreign law to be ‘the law of the cause’ (lex causae) or ‘applicable law’ that disposes of the case, and how does the forum court choose one or the other? This question is, naturally, only important if application of the forum’s law is likely to give a different result to the application of the foreign law: that is, where there is ‘a conflict of laws’. 1.2  In Australia, other common law countries and civil law countries, private international law is concerned with these three issues: jurisdiction, the recognition and enforcement of foreign judgments, and choice of law. While, in the course of a cross-border dispute, the chronological sequence of these issues is likely to mean that the question of jurisdiction is dealt with first, and the enforcement of a foreign judgment last, these issues will be dealt 3

1.2

Private International Law in Australia

with together in Part 2 of this book. In the past, these issues were treated as the ‘bookends’ of private international law, but it is now appreciated that questions of jurisdiction and judgments are closely related, in that the forum’s recognition or enforcement of a foreign judgment depends significantly on the jurisdiction of the foreign court that rendered it. In this respect, the rules of jurisdiction are also largely mirrored in the rules for recognising foreign judgments. Further, at a deeper policy level, schemes that make generous provision for the recognition — or ‘circulation’ — of foreign judgments often do so because the forum and foreign country have agreed to proportionate rules of jurisdiction that give the forum’s law-makers confidence that the foreign judgment emerged from a credible judicial process. In Australia, this has certainly been the case for the recognition and enforcement of interstate judgments and those made by New Zealand courts. As a result, these questions will be considered together. Parts 3–7 largely deal with choice of law; however, the principles relating to jurisdiction and judgments in family law (Part 4) and, to a small extent, company law (Part 7) are based on concepts that differ from those dealt with in Part 2. This is typical of private international law. For example, the concepts of choice of contract law have greater coherence with the general principles of contract law than they do with, for example, the concepts of choice of tort law. In this respect, the private international law is a hotchpotch and cannot be neatly explained by principles and rules that are standardised through the private international law. It also means that, in this text, questions of jurisdiction and judgments in family law will be separately addressed in Part 4. To the extent that there might also be unique principles relating to jurisdiction and judgments for company law and insolvency, these are dealt with in Part 7. 1.3  The subject of private international law is also referred to as ‘conflict of laws’, a term especially in common use in the United States. However, the term ‘conflict of laws’ does not describe the subject comprehensively, as it only suggests the choice of law issue. A ‘conflict’ is not essential where the issue between parties is one of jurisdiction or the enforcement of a foreign judgment. Still, the term ‘private international law’ is also misleading, because this body of law becomes applicable when either an international or an interstate element arises in a case. This is despite the fact that the great American jurist Joseph Story invented the term ‘private international law’ when outlining principles applicable to both international and interstate cases. It is certainly a shortcoming when, as Story recognised, in a federation like Australia or the United States, this body of law is more commonly used in interstate than in international cases. There is little prospect, however, that the term ‘private international law’ will be displaced by more accurate, but clumsier, badges like ‘private international and interstate law’. Nevertheless, the term ‘cross -border law’ is in increasing use. 1.4  Another objection to the term ‘private international law’ is its possible confusion with ‘public international law’. The two subjects are not unrelated.1 Historically, both public and private international law developed through the scholarship of continental European jurists. The outcome of cases involving private international law questions can still turn on public international law concepts like international personality,2 obligations not to discriminate 1. 2.

A Mills, The Confluence of Public and Private International Law: Justice, Pluralism and Subsidiarity in the International Constitutional Ordering of Private Law, Cambridge University Press, Cambridge, 2010. Adams v Adams [1971] P 188.

4

Scope, Development and Purpose



1.5

against foreign nationals, basic human rights, and the compliance of the law of the cause with Security Council Resolutions.5 Treaties and conventions which create international legal obligations between countries have led more recently to some important reshaping of rules of private international law. In this respect the work of the Hague Conference on Private International Law has been of immense significance, and many multilateral conventions concluded through the conference have been implemented in Australian law. Australia has also entered into a number of bilateral treaties with various countries which regulate aspects of private international law, the most important of which is the treaty with New Zealand on court proceedings and regulatory enforcement.6 3

4

1.5  There are, nevertheless, important differences between public and private international law. Public international law comprises customary international law, treaties, conventions, and legislation passed by international agencies such as the United Nations. Its effectiveness lies only in countries voluntarily complying with its rules and, at least in a ‘dualist’ legal system like Australia’s, it cannot be enforced directly unless implemented through legislation passed by a competent parliament.7 Public international law aims to regulate relations between nation states that have international personality or, through international human rights instruments, relations between the national governments of countries and their citizens. It is therefore universal, in the sense that the rules of public international law are the same regardless of where in the world they are considered. In contrast, private international or conflicts law has, since the late 19th century, been recognised as an aspect of municipal law.8 Even though the field largely originated in the work of legal scholars, its legal sources are now constitutions, statutes and, in common law countries, judicial decisions. The ordinary courts can therefore enforce it. The traditional disregard for academic opinion in the common law, however, cannot be rigidly maintained in private international law, where there is a lingering view that academic opinion might have more weight in the field than it does in other areas of the common law.9 Further, as the name suggests, private international law regulates legal relations between private persons and corporations. It therefore deals with problems encompassed by the different departments of the private law, such as family law, contract, tort, property and corporations, but again only to the extent that these problems also involve a foreign element. And, it is only ‘international law’ in the sense that it addresses an international (or interstate) element in a legal problem. It is not universal because, as municipal law, conflicts law frequently differs from country to country and even from state to state. This means that, on occasion,

3. 4. 5. 6.

7. 8. 9.

Anglo-Iranian Oil Co Ltd v Jaffrate (The Rose Mary) [1953] 1 WLR 246; Re Helbert Wagg & Co Ltd [1956] Ch 323 at 346. Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249 at 278. Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883. Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement [2013] ATS 32, given effect in the Trans-Tasman Proceedings Act 2010 (Cth). Bradley v Commonwealth (1973) 128 CLR 557. However, see Lord Hope of Craighead’s comments on the need to use the ‘universal’ principles of domicile in Mark v Mark [2005] 3 All ER 912 at 917. See 1.18.

5

1.5

Private International Law in Australia

a multi-state case might not only reveal a conflict of laws, it might also be complicated by a conflict of conflicts laws themselves.10 1.6  Since this subject deals exclusively with the private law, its concept of a ‘foreign country’ or a ‘foreign law’ also differs from that of public international law. In private international law, the important political unit is the private law area — which, in this text, is generally referred to as a ‘place’. Thus, different places are treated as foreign to each other, even if they are not so for public international law purposes. In private international law, but not the conventions of international relations, member countries of the Commonwealth are treated as foreign to each other.11 In cases which do not involve federal or national law, member states, territories, provinces or countries of a federal or composite nation are, in a sense, foreign to each other. The older Australian cases certainly adopted this classification. In Chaff and Hay Acquisition Committee v JA Hemphill and Sons Pty Ltd, Williams J observed that ‘[f]or the purposes of private international law, South Australia is a foreign country in the courts of New South Wales’.12 This anomalous description has been the subject of serious revision since the 1980s and, in choice of law cases especially, the High Court of Australia has tried to align the status of interstate relations in conflicts law more closely to the political and economic reality of Australia as ‘one country and one nation’.13 1.7  By contrast, other federal or composite nations have tended to preserve the unified approach to international and intranational matters. The United Kingdom comprises three distinct private law areas in England and Wales, Scotland and Northern Ireland, and for conflicts law purposes these regard each other as different countries. In the United States, each state and territory of the Union is a separate law area. Even during the Cold War an American judge could declare that ‘Michigan’s sovereignty is as foreign to Delaware as Russia’s’.14 Canadian provinces and territories are also separate places for private international law purposes. Indeed, given the prevalence of federal or composite nations in the English-speaking world, within the common law tradition private international law has, in general, developed in response to legal problems of an intra-national character. 1.8  Even though in English-speaking countries the relevant private law area is usually the state, territory or province, there are some private law matters in which the subject matter of the problem is one of federal or national concern. In Australia, legislative power has been invested in and exercised by the Commonwealth Parliament in matters of insurance, negotiable instruments, insolvency, intellectual property, marriage and matrimonial causes. In addition, the interests of securing national uniformity in areas which have traditionally been within the legislative competence of the state parliaments have sometimes led the 10. 11.

12. 13. 14.

The problem of renvoi: see 8.13–8.35. Attorney-General of New Zealand v Ortiz [1982] QB 349 at 581; Attorney-General for the United Kingdom v  Heinemann Publishers Australia Pty Ltd and Wright (1987) 10 NSWLR 86 at 137. The convention is, though, falling into disuse, and for many purposes Australian law now treats Commonwealth countries as ‘foreign’: Nolan v Minister for Immigration & Ethnic Affairs (1988) 165 CLR 178 at 184–5; Sue v Hill (1999) 199 CLR 462 at 503; Singh v Commonwealth (2004) 222 CLR 322 at 350–1, 372–3. (1947) 74 CLR 375 at 396; see also Laurie v Carroll (1958) 98 CLR 310 at 331; Pedersen v Young (1964) 110 CLR 162 at 170. Breavington v Godleman (1988) 169 CLR 41 at 78, 134–5, 160; see further at 1.24. City of Detroit v Proctor 61 A 2d 412 at 416 (1948).

6

Scope, Development and Purpose



1.9

states to refer law-making power in the area to the Commonwealth Parliament. The most important of these powers is arguably a comprehensive power to regulate the incorporation, conduct and liquidation of companies, which the Commonwealth exercises under the Corporations Act 2001. The relevant private law area in these cases is Australia as a whole, and conflicts law will in general (though not always) be inapplicable to cases with interstate elements only.15 Here, private international law usually only applies to international cases. Because in federal nations the power to legislate in different areas of the private law is often distributed between the central and regional governments, some knowledge of the internal distribution of powers peculiar to each federation is required before the relevant private law area can be identified. Thus, in Australia, marriage is a subject regulated by federal legislation — the Marriage Act 1961 (Cth). In Canada and the United States, it is regulated instead by provincial and state laws. There cannot therefore be a conflict of marriage laws within Australia, although they do occur within Canada and the United States. Further, in deciding whether there is a conflict between the marriage laws of Australia and one of these other countries, the comparison to be made is between, on the one hand, Australian federal law and, on the other, for example, Ontario or California law.

Historical development Ancient approaches 1.9  Not until the 12th century did there emerge anything like a private international law and, in particular, the modern choice of law method. The ancient approach to multi-state cases was a ‘substantive law approach’. Here, special courts decided multi-state cases in accordance with a separate body of laws. In a large measure this was because, even in Greece and Rome where refined systems of private law were developed, a fundamental premise of ancient legal systems was the idea of a personal law. The law by which a person lived depended on his citizenship, and not on where the person lived or conducted business. Thus, the ius civile or civil law of Rome was only available to Roman citizens, and only applied in disputes between citizens by a magistrate called the ‘urban praetor’. In 242 BC, a special office of peregrine praetor was created to deal with any dispute in Rome involving a foreigner, even where the other party was a citizen. Through the centuries, the peregrine praetors developed a distinct body of law called the ius gentium or the law of nations, based on an amalgam of Roman and foreign — particularly Greek — legal institutions. It nevertheless proved to be more adaptable than the civil law, and better suited to the exigencies of trade and commerce in the Mediterranean basin. However, to the Roman, the ius gentium was a personal law applicable to non-Romans and dealings with them. The distinction between the civil law and the ius gentium eventually collapsed by the gradual reception of the ius gentium into the urban praetor’s jurisdiction, and the result was some harmonisation of the laws applied in local disputes and in those involving a foreigner. In any case, the Edict of Caracalla in 212 AD extended Roman citizenship to all inhabitants of the Empire, and so universalised the application of the civil law within the Empire’s limits. Under the later Roman law, there was therefore no pressing need for any body of law specifically addressing multi-state cases. 15.

See further 23.1 and 23.22.

7

1.10

Private International Law in Australia

Scholarly development 1.10  The revival of the teaching and study of Roman law in the Italian universities in the 12th century and, under the influence of feudalism, the decline of the idea of a personal law, helped the emergence of private international law. Technically, the Corpus Iuris Civilis compiled under Justinian in the 6th century was still regarded as the common law of the Holy Roman Empire. But the Italian city-states had also developed ‘statuta’ or municipal laws to regulate local activity. Statuta frequently differed from the Imperial common law, and differed between cities. The scholars who explained how to deal with conflicts of statuta in cases between residents of different cities became known as ‘statutists’, and conceived the modern approaches to choice of law. So, the probable founder of conflicts law — Aldricus  — suggested that a judge dealing with conflicting statuta should apply the better and more useful law. This is a ‘multilateral approach’. It involves the evaluation of relevant but competing laws or legal systems, and the selection of one or the other. The statutists more commonly took a ‘unilateral approach’, in which the court determined the proper territorial operation of the statutum and gave it effect. Here, they generally classified rules as either ‘real’ or ‘personal’, although to these the French scholar Bertrand d’Argentré (1519–90) added a third ‘mixed’ category. The relevant classification indicated the geographical operation of the law. Bartolus of Sassoferrato (1314–57) illustrated the method in the famous ‘English Question’, where he posited whether the English rule of primogeniture (by which the eldest son inherited all of his father’s property) could apply to property in Italy. The solution was a matter of construction of the relevant English statutum. If the rule were expressed as ‘[t]he possessions of deceased persons shall pass to the firstborn’, the subject of the law was property. It would therefore be classified as real, and would not apply to property outside England. In contrast, a rule stating that ‘[t]he firstborn shall succeed’ indicated that its subject was personal, and it might apply extraterritorially to property in Italy if the deceased were English. This method of classification was regarded by later statutists as excessively formal, and the statutist period was marked by unproductive debate about methods of classification. That also exhausted the intellectual vigour of scholarship in the subject, and by the 17th century proved inadequate to deal with new political conditions in Europe. 1.11  The statutists nevertheless revolutionised legal approaches to multi-state cases, and French statutists especially left a considerable doctrinal legacy to modern conflicts law. Thus, the statutists developed choice of law rules that still provide the basic approach to particular multi-state problems. Questions of procedure are governed by the law of the forum (the lex fori), liability for torts is often governed by the law of the place of the tort (the lex loci delicti), and rights to property are determined by the law of the place where the property is situate (the lex situs). The French scholar Charles du Moulin (1500–66) held that the traditional classification of rules as real or personal did not apply to questions of rights which depend on the will of the parties. In this case, the intention of the parties, whether express or tacit, determined their legal rights and obligations, an assumption which underlies the idea of party autonomy in English law and ‘the proper law of the contract’ choice of law rule. 1.12  The Reformation and the rise of nationalism in the 16th century decentralised political power in northern Europe, and municipal laws began to displace the supranational 8



Scope, Development and Purpose

1.13

Roman and canon laws. Jean Bodin’s Six Books of the Commonwealth legitimised the new political order by the idea of national sovereignty, in which a sovereign was regarded as unlimited within the territory he governed in power, function and duration. Moulin, Argentré and the Dutch scholars Christian Rodenburg (1618–68), Paul Voet (1619–77) and John Voet (1647–1714) all referred to aspects of national sovereignty in their theories of private international law. However, it was the Frisian scholar Ulric Huber (1636–94) who integrated the idea more thoroughly in his On the Conflict of Laws, a work which marks the first real departure from statutist theory. Huber’s theory was based on three assumptions which remain important to conflicts law. The first was ‘territorial sovereignty’ — that ‘[t]he laws of each state have force within the limits of that government and bind all subject to it; but not beyond’. This idea of territoriality was strengthened by Huber’s claim that all persons within the sovereign’s territory — whether permanently or temporarily — were his subjects. The second assumption was ‘comity’, an idea initially developed by Paul Voet. The local sovereign might give effect to a foreign sovereign’s laws in his own realm. This was only because of ‘convenience and the tacit consent of nations’ and not because the foreign sovereign’s laws had any right to be applied in the local sovereign’s country. The third assumption was implicit, but was later called ‘the theory of vested rights’. Foreign laws cannot — consistent with the idea of territorial sovereignty — have direct force in the local sovereign’s realm, but the local sovereign recognises rights valid in the foreign country in the interests of ‘commerce and … international usage’. To some extent these assumptions bring internal contradictions to Huber’s theory: unlimited sovereignty is especially difficult to reconcile with the recognition of rights created by another sovereign. But later scholars extended the role of Huber’s assumptions in conflicts of law. This was particularly so when the subject was first considered in the United States and England, and the idea of territorial sovereignty converged neatly with assumptions of territoriality that common law judges made in their first incursions into multi-state cases. As a result, Huber has probably had more influence on the development of common law rules of private international law than any other scholar or judge. 1.13  The United States presented ample opportunity for multi-state cases to arise, and Americans were the first common law scholars to consider theories of private international law. Early contributions to the subject were made by Samuel Livermore (d.  1833) and Chancellor James Kent (1763–1847). However, it was the Harvard scholar and Supreme Court Justice Joseph Story (1779–1845) who made a permanent contribution in his Commentaries on the Conflict of Laws (1834). This was an attempt to integrate the 506 common law decisions in multi-state cases — most of which were American — and European scholarship. Huber was credited with particular authority, and Story placed great emphasis on the comity of nations. This, he held, stood ‘upon just principles’, and was the most appropriate way to explain why a forum court might apply a foreign law, even though it was not under any obligation to do so. Story thought that courts should give effect to the comity of nations by presuming that, in the absence of local laws which specifically directed how foreign laws were to be treated, the government was prepared to recognise foreign laws unless they were repugnant to public policy or local interests. The Commentaries have been criticised for Story’s indiscriminate use of European scholarship, but the continuing importance of the work lies in his bringing organisation and coherence to the undeveloped common law principles — and rules relating to domicile, choice of law, jurisdiction in 9

1.13

Private International Law in Australia

multi-state cases and foreign judgments. In doing so, they were also profoundly to influence the English theorist Albert Venn Dicey (1835–1922) and the German Friedrich Carl von Savigny (1779–1861). 1.14  English scholarship on private international law followed soon after Story’s Commentaries. In 1838, William Burge published his Commentaries on Colonial and Foreign Laws, a work which dealt partially with the increasing problem of conflicting laws between the various legal systems of the British Empire. Texts on the law of domicile were published by the civilian judge Robert Phillimore in 1847 and H W Cole in 1857. Phillimore  was especially critical of ‘the spirit of an English common lawyer’ in Story’s work. But the first English lawyers to write comprehensive works on conflicts law were John Westlake (1828–1913), whose Treatise on Private International Law (1858) still largely depended on European scholarship, and John Alderson Foote (1849–1922), whose Treatise (1878) relied more on the decisions of English courts. The classic English text, however, became Dicey’s Conflict of Laws (1896), which finally established private international law as a department of English municipal law, rather than as a branch of public international law. It is the only one of the 19th century texts which has been continued, and the original and the 14 subsequent editions remain a profoundly influential work of high prestige. Dicey elevated the theories of territorial sovereignty and of vested rights. Accordingly, Dicey thought ‘that the Courts, eg, of England, never in strictness enforce foreign law; when they are said to do so, they enforce not foreign laws, but rights acquired under foreign laws’.16 The theory of vested rights was one reason why Dicey completely rejected comity as the reason why an English forum might apply foreign laws. It had nothing to do with the courtesy the forum showed to the foreign sovereign, but arose because it would cause inconvenience and injustice to litigants not to recognise the legal rights and obligations they acquired in the foreign country.17 1.15  Dicey’s ideas of territorial sovereignty and vested rights would be developed even further in the United States through Joseph Beale’s (1861–1943) Treatise on the Conflict of Laws (1935) and the (first) Restatement of the Conflict of Laws (1934). In Beale’s work, the doctrine of vested rights reached its pinnacle. Following Huber, Beale held that a sovereign — or state — only had the legislative power over transactions or events that occurred within its borders. This was coupled with a theory of the vesting of rights, by which Beale argued that a legal relationship (or a right to compensation) would ‘vest’ on the last event that could, by the law of the country where it occurred, create that relationship or right. As a result, a tort could only be recognised when, by the law of the place where the events occurred, a person would secure a right to compensation. At this point, said Beale, rights in tort would vest. The result was that, according to Beale, the governing law for a multi-state tort was the law of the place where the tort occurred. A similarly strong territorial emphasis was given in other areas of the law. For example, the governing law for a contract was the law of the place where the contract was made because this was the place where the rights vested. American choice of law, especially as Beale had articulated it in the First Restatement, acquired a rigidity that 16. 17.

A V Dicey, A Digest of the Law of England with Reference to the Conflict of Laws, Sweet & Maxwell, London, 1896, p 10. G W Bartholomew, ‘Dicey and the Development of English Private International Law’ (1959) 1 Tasmanian University Law Review 240.

10



Scope, Development and Purpose

1.17

European thinking did not have, and which eventually led American conflicts scholarship to react against vested rights in a more extreme way. 1.16  Private international law scholarship on the European continent in the late 19th century was dominated by Savigny’s Treatise on the Conflict of Laws (1849). Savigny also drew on Story’s Commentaries and, like Story, began with the idea of territorial sovereignty. He also accepted Huber’s idea of comity. But Savigny rejected the doctrine of vested rights as circular. The forum court might enforce rights acquired in a foreign country, but the question whether persons had acquired enforceable rights on the basis of their conduct in the foreign country still depended on whether it was to be judged by reference to the forum law or the foreign law. So, vested rights did not really indicate how the selection between forum and foreign law should be made.18 The Treatise was an attempt to state a private international law of universal application, and centred on the idea that it was possible to identify the ‘seat’ or territorial location of every legal relation by reference to factors like the domicile of the parties, the place where the transaction occurred, the place where any property or thing involved in the legal relation was located, and the place of the litigation.19 For the most part, this led Savigny to deduce choice of law rules similar to those which had been accepted since the statutist period. In this respect, his contribution was generally unoriginal, although the idea of finding the ‘seat’ of a legal relation by assessing its contacts with a particular place has also proved influential in the development of the English notion of the ‘proper law of the contract’ and related proposals for a ‘proper law of the tort’. However, Savigny brought even more important theoretical and doctrinal improvements to the subject. In the first place, he recognised that in approaching the choice of law problem a court did not necessarily classify the rules in question. Instead, the process of classification could address the legal relations involved in the dispute, and this is the approach he implicitly took to choice of law issues throughout the Treatise. Second, he expounded the idea that the basic purpose of private international law was to ensure consistent outcomes in litigation: ‘in cases of conflict of laws, the same legal relation (cases) have to expect the same decision, whether the judgment be pronounced in this state or that’.20 This is one reason why it was important that Savigny’s choice of law rules be universal, in the sense that they be recognised and applied in all countries. If, for example, all countries adopt a uniform choice of law rule that the validity of a marriage is to be determined by reference to the law of the place where it was solemnised, whether a case involving the validity of a marriage celebrated in Ruritania is dealt with in Australia, Hentzau or Ruritania, the law of Ruritania will be applied. So, regardless of where in the world the case is determined, the result is the same. European scholars later dubbed this idea ‘decisional harmony’. The idea was certainly implicit in the writings even of the statutists. Nevertheless, it was first elucidated by Savigny and remains a central objective of conflicts law. 1.17  There was a deeper, and more radical, ferment in American private international law scholarship in the 20th century. As mentioned, much of this was a reaction to the rigidity of 18. 19. 20.

F C von Savigny, A Treatise on the Conflict of Laws (W Guthrie trans), 2nd ed, Stevens & Sons, London, 1880, p 147. Savigny, above n 18, p 35. See also pp 195–7. Savigny, above n 18, pp 69–70.

11

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Private International Law in Australia

Beale’s emphasis on vested rights, and the impact that had in the courts that were prone to use the First Restatement. The most influential theorist in the ‘American conflicts revolution’ was Brainerd Currie. His theory of ‘interest analysis’ began with the assumption that the primary duty of the court was to its own sovereign. Therefore, if asked in a multi-state case to apply the law of a different country or state, the court in the forum had first to determine whether the legislative policies of its own sovereign would be advanced by application of its own forum law. If so, then the law of the forum had to be applied. If not, then a relevant foreign law could be applied. However, if the court in the forum also found that application of the foreign law would not advance policies of the foreign sovereign, then, by default, it would again apply the law of the forum. In other words, the court would only apply a foreign law if it found that policies of the forum were not advanced by application of the law of the forum to the case, and that the policies of the foreign sovereign would be advanced if the foreign law were applied to the case. Further, Currie argued that if the forum court found that, even though the forum and foreign law differed, they advanced similar policies, there was a ‘false conflict’. In most cases of a false conflict, the law of the forum would be applied. As a result, Currie eschewed the rules-based approach that the common law had taken since the reception of Huber’s multilateralism. Indeed, interest analysis could only be described as an ‘approach’ — Currie actually believed that ‘[w]e would be better off without choice-of-law rules’.21 It also meant that, instead of assessing the ‘seat’ of a legal relationship (as Savigny suggested), the court concentrated on giving effect to the different states’ interests in the way that the case would be decided. This naturally gave priority to the interests of the forum. Interest analysis, which has been adopted in some of the United States, has certainly led to parochial adjudication — but then it is supposed to.22

Institutional writing as a source of law 1.18  As is evident from the above account, the basic structure of common law choice of law method owes much more to the reflections of scholars than is usual in other departments of the common law. It is occasionally said that scholarship is of ‘particular value’ in deciding multi-state cases.23 As a result, while theoretical scholarship is rarely recognised as a direct, authoritative source of law in common law jurisdictions, in practice it has been a significant source of ideas, principles and rules in private international law. In the 19th century, this could be attributed to the large gaps in the field and the higher frequency of novel cases — the phenomenon of ‘case-sparseness’.24 In 1879, Frederic Harrison could still observe that:25 … when a decision of [private international law] arises, it is seldom decided off-hand with reference to merely English decisions. Books are cited as authorities which are usually 21. 22. 23. 24.

25.

B Currie, Selected Essays on the Conflict of Laws, Duke University Press, Durham NC, 1963, p 183. For an account of subsequent developments in interest analysis, see L Brilmayer, Conflict of Laws, 2nd ed, Aspen, Gaithersburg, Md, 1995. Hesperides Hotels Ltd v Muftizade [1979] AC 508 at 536; Re AM McKenzie, dec’d (1951) 51 SR (NSW) 293 at 297; Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 488. R Fentiman, ‘“Legal Reasoning in the Conflict of Laws”: An Essay in Law and Practice’ in W Krawietz, N  MacCormick and GH von Wright (eds), Prescriptive Formality and Normative Rationality in Modern Legal Systems, Duncker & Humblot, Berlin, 1994, pp 443, 445–8. F Harrison, On Jurisprudence and the Conflict of Laws, Clarendon Press, Oxford, 1919, p 102.

12



Scope, Development and Purpose

1.19

foreign … An author such as Huber, a Dutch professor of the seventeenth century, is constantly quoted … Story, Foelix and Boullenois are in constant requisition, and the court will seriously attend to dicta of foreign lawyers writing under systems widely different from our own and from each other, whose notions of jurisprudence rest upon theories entirely contrary to our own.

By the time Dicey wrote in 1896, a considerable body of precedent had become available. But even at that point it was thought that the particular influence of Story, who was himself deeply indebted to continental jurists, meant that English courts were still necessarily affirming foreign academic opinion. The influence of Dicey, in particular, is profound, and his Conflict of Laws is still sometimes cited as representing the law without further comment or reference to precedent.26 Conflict of Laws’ organisation as a sequence of structured rules and sub-rules, with commentary beneath each rule, encourages its use by courts as an easily referenced code and, so, a source of law.27 No other text has this stature, and it may be that, with the present form of private international law as a developed body of the common law, other academic opinion is now largely an indirect source of law. However, the complexity of the problems and solutions that arise in multi-state cases almost guarantees that scholarship in the subject will continue to have a persuasive role.

Judicial development in England 1.19  England was slower than the countries of the European continent to develop a private international law that was actually applied by the courts. There were a number of features of the English legal system that obviated the need for conflicts law, and thereby retarded its development. The first was the centralised administration of justice — and hence the application of one body of law common to all of England — that developed from the 12th century. The English courts never had to deal with the conflicts of regional and provincial laws that courts in the decentralised Low Countries, Italy and France did. Second, the powerful common law courts had jurisdictional rules that precluded the hearing of multi-state cases until the 17th century. Trials at common law were by a jury drawn from the district where the relevant events took place, because jurors decided questions of fact on the basis of their own personal knowledge. As the sheriff had no power to empanel a jury of foreigners, trial by jury effectively prohibited common law jurisdiction in cases involving international elements. Third, the Court of Chancery did claim the right to adjudge claims involving property outside England. However, this only existed when it had personal jurisdiction over defendants by reason of their presence in England, and in these cases it only applied English equity.28 Fourth, the several courts that did assume jurisdiction in multi-state cases applied international laws, and therefore encountered no problems of conflicting English and foreign laws. The High Court of Admiralty had exercised jurisdiction in multi-state cases from the 14th century, but applied the international law of 26. 27.

28.

See CK Allen, Law in the Making, Clarendon Press, Oxford, 1927, pp 154–6. Fentiman, above n 24, pp 458–9; CGJ Morse, ‘Making English Private international law’ in J Fawcett, Reform and Development in Private International Law, Oxford University Press, Oxford, 2002, pp 273, 282–5; M  Keyes, ‘Order, Illumination and Influence: Dicey, Morris & Collins on the Conflict of Laws, Fourteenth Edition’ (2007) 3(2) Journal of Private International Law 355 at 356–8. For example, Penn v Lord Baltimore (1750) 1 Ves Sen 444; 27 ER 1132.

13

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Private International Law in Australia

the sea, which was based on the ancient sea law of Rhodes and, in northern Europe, on the customs of Oleron and Wisby. The staple courts and the courts of pie poudre applied the international law merchant. Indeed, they sometimes referred to this as the law of nations or ius gentium.29 It has also been called the ‘private international law of the Middle Ages’.30 Fifth, with the sole exception of the advocates who practised in the civilian courts, the English legal profession was largely insulated from the bursts of Roman law scholarship that had taken place in the European universities from the 12th century. The education of an English lawyer was practical, conducted through the Inns of Court and based on writs, pleadings and English feudal land law. The rational discourses of civilian scholars were completely alien to the common law method, and it is no accident that the first judges in England to draw on the European scholarship sat in civilian courts or, as in Lord Mansfield’s case, had received education in Roman law. It is probable that, with the House of Lords hearing more Scottish appeals, continental influences were mediated to English judges through their first exposure to Scottish law, which had had a more significant reception of Roman law.31 1.20  Important developments in jurisdictional rules in the 17th century laid the basis for the common law courts to consider multi-state cases, and eventually to adopt choice of law rules to deal with them. These were motivated by the common law courts’ attempts to appropriate jurisdiction and business from the Court of Admiralty, and rested on the simple fiction of pleading that all the relevant circumstances occurred in England — for example, ‘on the island of Minorca … at London … in the parish of St Mary le Bow, in the ward of Cheap’.32 Initially this did not lead to the development of choice of law rules to deal with foreign laws relevant to the case. The earlier approach at common law was to require that the matter first proceed to judgment in a foreign court, and then enforce the foreign judgment in England by an action in debt. 1.21  The first choice of law rules were adopted by English courts in the late 17th and 18th centuries, and in general the judges imported the solutions to multi-state cases already suggested in the European scholarship. The landmark decision in this period was that of Lord Mansfield in Robinson v Bland.33 The plaintiff Englishman lent Sir John Bland, another Englishman, the sum of £300 in Paris for gambling. Sir John lost this and other sums to the plaintiff and so gave him a bill of exchange payable in England. After Sir John’s death, the plaintiff brought actions claiming, inter alia, repayment of the £300 loan by Sir John’s administrator. Evidence proved that, in France, money lost in gambling between two gentlemen could be recovered as ‘a debt of honour’ before the Marshals of France. The Court of King’s Bench held that the plaintiff could recover the loan; Lord Mansfield and Wilmot J holding that the laws of England and France on point were the same. However, the court also considered how it should have dealt with the law of France if it had differed from English law. Denison and Wilmot JJ thought English law should apply as the plaintiff 29. 30. 31. 32. 33.

Luke v Lyde (1759) 2 Burr 882 at 887; 97 ER 614 at 617; see 1.9. W Mitchell, An Essay on the Early History of the Law Merchant, Cambridge University Press, Cambridge, 1904, pp 1, 21. A E Anton, ‘The Introduction into English Practice of Continental Theories of Conflict of Laws’ (1956) 5 International and Comparative Law Quarterly at 534. Mostyn v Fabrigas (1775) 1 Coup 161; 98 ER 1021 at 1022; Ward’s Case (1625) Latch 4 at 5; 82 ER 245 at 246. (1760) 1 Wm Bl 234 at 256; 2 Burr 1077; 96 ER 129 at 141; 97 ER 717.

14



Scope, Development and Purpose

1.23

sued in an English court. But on the basis of comity, the ‘ius gentium’ and the authority of Huber, Lord Mansfield ruled that a contract is generally governed by the law of the place where it was made unless the parties intended it to be governed by some other law. In this case, he concluded that, if there had been a conflict of laws, the loan would be governed by English law. 1.22  Robinson v Bland stands at the crossroad of common law development in multi-state cases. Denison and Wilmot JJ’s approach embodied the older unilateral perspective that viewed the question through the eyes of English law. Lord Mansfield, though, took the modern multilateral approach which, through a choice of law rule, selects a jurisdiction that then provides the rules that dispose of the case. In this late 18th and early 19th century period, multilateralism gradually gained ascendance in civilian and common law courts. They ruled that an English court could not entertain an action relating to immovable property outside England,34 that succession to movable property was governed by the law of the deceased’s domicile,35 that the validity of a marriage was governed by the law of the place where it was solemnised,36 and that there was no liability in tort if the action were lawful in the place where the tort occurred.37 Westlake observed that this course of decisions showed — unusually — a ‘reception’ of civilian doctrine into the common law. Though often only implicitly, Huber’s ideas of sovereignty and vested rights especially loomed large in many judgments.38 And, even though English conflicts law has developed substantially since this early period, it still possesses a more civilian structure than other departments of the common law do.

An Australian private international law 1.23   The emergence of an Australian private international law — distinctive from the English law that Australian courts necessarily received or adopted — has been influenced by a number of considerations: the creation of the Australian federation; special regional ties with near neighbours; the United Kingdom’s own distancing from common law institutions by its membership (for the time being) of the European Union; and the fragmentation of the common law world. For the most part, distinctive Australian approaches to private international law have involved questions of jurisdiction and the enforcement of judgments, with no real departure from English antecedents in choice of law until the early 2000s. In the colonial period, New South Wales  developed a model statute, adopted elsewhere in Australasia, to deal more effectively with intercolonial absconding debtors by making Australasian money judgments easier to enforce.39 The particularly generous recognition of 34. 35. 36. 37. 38. 39.

Shelling v Farmer (1726) 1 Stra 646; 93 ER 756. Pipon v Pipon (1744) Amb 25; 27 ER 14. Scrimshire v Scrimshire (1752) 2 Hag Con 395; 161 ER 782. Blad v Bamfield (1673) 3 Swans 603; 36 ER 992; Dutton v Howell (1693) Shower 24 at 30, 34; 1 ER 17 at 21, 23; Mostyn v Fabrigas (1775) 1 Coup 161; 98 ER 1021. For example, Holman v Johnson (1775) 1 Coup 341; 98 ER 1120; Dalrymple v Dalrymple (1811) 2 Hagg Con 54; 161 ER 665. Further Remedies to Creditors Act  1855 (NSW); Australasian Creditors Act  1858 (NZ); Common Law Practice Act 1867 (Qld), ss 20–22; Further Remedies to Creditors Act 1856 (SA); Remedies to Creditors Act 1857 (Tas); Further Remedies to Creditors Act 1858 (Vic); Relief of Creditors Ordinance 1856 (WA).

15

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Private International Law in Australia

intercolonial and interstate judgments that has marked Australian law began as a Federal Council of Australasia initiative in 1886.40 It was refined through early federal legislation41 and, finally, the Service and Execution of Process Act  1992 (Cth), which gives complete enforcement jurisdiction throughout the nation to all state and territory courts.42 The interstate adjudicative jurisdiction of colonial and state courts also began as an Australasian statute,43 and then proceeded through the same developments in federal statute law.44 The Act of 1992, together with the cross-vesting scheme that applies to all superior courts,45 have given rise to a scheme by which, roughly, all federal, state and territory civil process can be served on any person anywhere in Australia, but proceedings are then transferred to, or stayed in favour of, ‘the appropriate court’ (or forum conveniens).46 The outcome is that ‘the more appropriate court’ in Australia, as determined by judicial discretion, is supposed to deal with litigation. This scheme has now been extended to legal questions relating to New Zealand, and in a sense has returned the scheme to an Australasian model of private international law where ‘the more appropriate court’ in Australia or New Zealand  deals with legal proceedings.47 1.24  It is through intra-national cross-border arrangements that the most distinctive developments in Australian private international law have taken place, and these arrangements have driven further developments in international questions. Australia is not only a highly homogenous and integrated federal system with shared political, cultural and linguistic traditions, but its courts – since Federation – have been subject to the overriding appellate control of the High Court in all federal, state and territory matters.48 This has encouraged the development of a distinct system of private international law for intranational disputes, although in choice of law (as opposed to jurisdiction and judgments) this only emerged in the 2000s. The emerging differences between English and Australian law started to become evident with the publication of the first Australian textbook in the field in 1968, Conflict of Laws in Australia49 by the Dutch-Australian academic and judge Peter Nygh (1933–2002). Nygh’s Conflict of Laws was structured along the lines of the English texts and, while referring to Australian authority throughout, still relegated to the end chapters all of the unique Australian issues — interstate conflicts, full faith and credit,

40. 41. 42. 43. 44. 45. 46. 47.

48.

49.

Australasian Judgments Act 1886 (FCA). Service and Execution of Process Act 1901 (Cth) s 21. Judgment debtors have no defences to interstate enforcement: Service and Execution of Process Act 1992 (Cth) ss 105, 109. Australasian Civil Process Act 1886 (FCA). Service and Execution of Process Act 1901 (Cth) ss 4, 11; Service and Execution of Process Act 1992 (Cth) ss 12, 15. See 2.24–2.36. See 4.55–4.80. See Trans-Tasman Proceedings Act 2010 (Cth); Trans-Tasman Proceedings Act 2010 (NZ); R Mortensen, ‘Together Alone: Integrating the Tasman World’ in A Dickinson, M Keyes and T John (eds), Australian Private International Law in the 21st Century, Hart Publishing, Oxford, pp 113, 142–4. R Garnett, ‘Sir Zelman Cowen and the Emergence of an Interstate Private International Law in Australia’ (2015) 38 Melbourne University Law Review 1041 at 1044; Z Cowen, American-Australian Private International Law, Oceana Publications, 1957, p 84. PE Nygh (with EI Sykes and DJ MacDougall), Conflict of Laws in Australia, Butterworths, Sydney, 1968.

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Scope, Development and Purpose

1.25

the Service and Execution of Process Act  1901 (Cth), questions of federal jurisdiction.50 They were still treated as mere additions to the core body of English-influenced law. Dr Nygh noted that ‘a divergence’ existed with English law and was being widened, but considered that the principal need for an Australian text was to encourage Australian experimentation with local solutions to multi-state legal problems.51 However, by 1976 Nygh’s Conflict of Laws had more comprehensively integrated the distinctive Australian law of interstate conflicts with the main body of the text and, in addition, aimed to deal just as comprehensively with New Zealand legal authorities.52 Nygh abandoned efforts at including New Zealand law in 1991, concluding that ‘the independent path taken by Australia has meant that New Zealand could no longer be treated as an addendum’.53 A second series of text began in 1972 when Professor Edward Sykes (1910–2006) published A Textbook of the Australian Conflict of Laws.54 Although this began as an integrated work of Australian law, the strong debt to English developments was still evident and, indeed, recent changes in English law were the sole rationale that Professor Sykes gave for the text.55 A Textbook also attempted to organise the law differently to the traditional distinctions between jurisdiction, the enforcement of judgments and choice of law but, when recasting the work jointly with Professor Michael Pryles (b. 1945) in 1979, Sykes reverted to the traditional categories. Renamed as Australian Private International Law, this series ended in 1991.56 1.25  It was not until 2000 that any Australian choice of law rule departed from the law inherited from the common law of England, and it was the Constitution’s full faith and credit clause (s 118) that drove the change. A new source of choice of law almost arose in 1988, when a minority of three judges in the High Court held that the law governing an interstate tort should be governed by constitutional considerations rather than the common law.57 The approach, nevertheless, gained no ground through the 1990s.58 However, the recognition in Lange v Australian Broadcasting Corporation59 that the common law of Australia had to conform to the demands of the Constitution eventually saw s 118 become important for a re-writing of choice of law rules in tort.60 The High Court held in 2000 that s 118 gave states a predominant territorial interest in events within their borders and, accordingly, the law of a state where a tort occurred would govern an interstate tort case. In doing so, the court abandoned the old English choice of law rule that required reference to both the law of the forum and the law of the place where the tort occurred. Although the Constitution 50. 51. 52. 53.

54. 55. 56.

57. 58. 59. 60.

At pp 653–715. At pp 5–6. PE Nygh, Conflict of Laws in Australia, 3rd ed, Butterworths, Sydney, 1976, pp v–vi. PE Nygh, Conflict of Laws in Australia, 5th ed, Butterworths, Sydney, 1991, p xvi. The series is now in its ninth edition: M Davies, AS Bell and PLG Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, Sydney, 2014. EI Sykes, A Textbook of the Australian Conflict of Laws, Law Book Company, Sydney, 1972. At pp vi–ix. EI Sykes and MC Pryles, Australian Private International Law, Law Book Company, Sydney, 1979; EI Sykes and MC Pryles Australian Private International Law, 2nd ed, Law Book Company, Sydney, 1987; EI Sykes and MC Pryles Australian Private International Law, 3rd ed, Law Book Company, Sydney, 1991. Breavington v Godleman (1988) 169 CLR 41 (Deane, Wilson and Gaudron JJ). See 11.8–11.12. McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1; Stevens v Head (1993) 176 CLR 433. (1997) 189 CLR 520. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; see 11.13–11.19.

17

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Private International Law in Australia

could have no effect on foreign tort cases, this development then influenced the adoption of a similar rule for torts that occurred overseas.61 It was after these developments that the current textbook series Private International Law in Australia began, recognising modern understandings of the relationship between adjudicative jurisdiction and the enforcement of judgments, clarifying the structure of choice of law method, and giving prominence to fundamental principles of the Constitution and statutes under choice of law.62 1.26  The historical and constitutional ties of Australia to the United Kingdom and the common law world more generally mean that these continue to influence Australian private international law.63 Still, recently both of the above factors have diminished, and compounded the differences between Australian and English private international law that the Australian Constitution has also driven.64 English materials in private international law are of ‘ever decreasing utility’ to Australia given the dominant focus, for the time being, on litigation in the United Kingdom involving European Union law — especially in the case of jurisdiction, the enforcement of judgments and choice of law in contract and tort.65 Further, in two major common law countries, Canada and the United States, private international law principles have veered widely from the English common law origins.66 The growing lack of uniformity in the common law world should therefore encourage Australian judges and lawmakers to develop a uniquely Australian private international law. Some evidence of this ‘independence’ can be seen in three distinctive developments in Australia. First, in Neilson v Overseas Projects Corp (Vic) Ltd67 the rule that the High Court had adopted for choice of law for torts68 was supplemented by the doctrine of renvoi69 — an approach that is unique in the common law world and contrary to international trends that prefer to prohibit the use of renvoi in choice of law. It adds extreme complexity to Australian choice of law — so extreme that lower courts have at times seemed unaware of its relevance.70 Second, Australian principles of establishing jurisdiction by the cross-border service of process have progressively grown in exorbitance — which means that the connection that a party or the subject-matter of the proceedings has with the forum is tenuous. The Supreme Court of New South Wales, in particular, led this development with a rule that allowed service outside New South Wales when the action related to damage suffered within the state for a tort ‘wherever occurring’. This permits jurisdiction in cases where nothing more than the 61. 62.

63. 64. 65.

66. 67. 68. 69. 70.

Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; see 11.19. RG Mortensen, Private International Law in Australia, LexisNexis Butterworths, Sydney, 1996; R Mortensen, R Garnett and M Keyes, Private International Law in Australia, 2nd ed, LexisNexis Butterworths, Sydney, 2011; R Mortensen, R Garnett and M Keyes, Private International Law in Australia, 3rd ed, LexisNexis Butterworths, Sydney, 2015. A Dickinson, ‘The Future of Private International Law in Australia’ (2012) 19 Australian International Law Journal 1 at 3. See 1.24. A Dickinson, ‘What, If Anything, Can Australia Learn from the EU Experience?’ in A Dickinson, M Keyes and T John (eds), Australian Private International Law for the 21st Century, Hart Publishing, Oxford, 2014, pp 157, 160–1. Dickinson, above n 65, p 4. (2005) 223 CLR 331; [2005] HCA 54. See 1.24. For an explanation of the doctrine of renvoi, see 8.13–8.35. Cf Hodgson v Dimbola Pty Ltd [2009] ACTSC 59; discussed at 18.8.

18



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1.27

loss of earning capacity or of the plaintiff ’s financial loss arises in the state. In effect, the rule can give jurisdiction to the state courts just because the plaintiff lives in the state. The jurisdiction has since been adopted in most states and in the territories.71 The law of New South Wales also allows the exercise of jurisdiction in claims over foreign land or immovable property where almost all other common law jurisdictions do not.72 And even though most common law countries, under the doctrine of forum non conveniens,73 put limits on the exercise of jurisdiction when there is a clearly more appropriate forum to deal with the litigation, the High Court opted for principles that were friendlier towards a plaintiff ’s choice of court.74 More recently, the harmonised rules that have been adopted in New South Wales, South Australia, Tasmania and Victoria for the service of civil process overseas allow a state court to exercise jurisdiction merely when a relevant incident occurs ‘in Australia’ — and so potentially outside the relevant state. These rules allow the relevant state court to exercise jurisdiction in cases that have no connection at all with the state — a clear instance of an exorbitant jurisdiction that no other country has been prepared to claim.75 Third, Australia has implemented more of the family law conventions concluded by the Hague Conference on Private International Law than any other country. The influence of Peter Nygh in this respect is noteworthy.76 An Australian delegate to the Hague Conference and, from 1979, a judge of the Family Court of Australia, Justice Nygh promoted Australia’s implementation of, among other Hague Conventions, the Marriage Validity Convention,77 the Divorce Convention,78 the Child Abduction Convention,79 the Child Protection Convention80 and the Maintenance Convention.81 In contrast to the parochial manner in which general civil jurisdiction has developed in Australia, Nygh’s work in Australia’s international family law has given it a strong internationalist dimension.

Objectives 1.27  The question arises as to what policy objectives are promoted by private international law. In particular, why should a court in the forum ever apply the law of another country or state? Why should it not always apply the law of the forum? Scholars and judges have long speculated about the objectives of private international law, but today there is probably recognition that it serves a number of sometimes competing purposes. These include the need to promote uniformity or predictability of legal, social or economic consequences; the expectations or intentions of the parties; the validation of legal transactions or relationships; respect for the interests of other countries and states; international and interstate 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81.

Dickinson, above n 65, p 169; see also 2.77–2.78. See 3.8. See 4.32–4.47. Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; Henry v Henry (1996) 185 CLR 571. See 2.24–2.47. See 1.24; and D Bennett, ‘Peter Edward Nygh’ (2002) 76 Australian Law Journal 595 at 596. See 13.2. See 14.19. See 15.29. See 15.1, 15.62. See 16.18.

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co-operation; and the justice of the result in the particular case. To some extent these can be reduced to three more general themes frequently found in rationales for the enforcement of foreign law or rights: (1) consistency; (2) particular justice; and (3) international and interstate comity.

Consistency 1.28  The idea that choice of law rules especially are designed to promote certainty, predictability and uniformity in the adjudication of multi-state cases has been an important assumption behind the application of foreign laws, and since Savigny has been identified as a central objective of modern conflicts law. Ensuring consistent outcomes in multi-state cases is naturally one aspect of the basic principle of the rule of law that like cases be decided alike.82 Therefore, a reason why a court in the forum might apply the law of Ruritania is to deliver an outcome similar to that which a court in Ruritania would have delivered had the action been dealt with there. The result is that individuals can predict the legal consequences of their actions even when they have contact with other countries and states, and it allows them to make appropriate plans for personal and business arrangements that cross borders. These are basic prerequisites to the maintenance of international and interstate order and economic development. Similar objectives are sometimes recognised in questions of jurisdiction, especially where the jurisdictional rules aim to have litigation placed in a court in the place that provides the law of the cause. 1.29  The goal of consistency therefore also aims to minimise the legal significance of the plaintiff ’s choice of forum, and so discourages the practice of forum shopping. This involves plaintiffs bringing an action in one court primarily to obtain material benefits that they could not obtain had they sued in a more appropriate court. Thus, the plaintiff in Breavington v  Godleman83 brought an action relating to a motor vehicle accident in the Northern Territory in the Supreme Court of Victoria because damages for economic loss were recoverable in Victoria but not in the Northern Territory. The plaintiffs in Perrett v Robinson84 and Stevens v Head85 sued in Queensland even though the claims arose out of motor vehicle accidents in (respectively) the Northern Territory and New South Wales, because more generous damages awards were available in Queensland than in the other jurisdictions. In McKain v RW Miller & Co (SA) Pty Ltd86 the expiration of the limitation period barred a claim for personal injuries in South Australia, where the accident occurred. The plaintiff therefore commenced proceedings in New South Wales, where the limitation period had not expired. In some of these cases, High Court judges expressly denounced the practice of forum shopping as undesirable.87 In John Pfeiffer Pty Ltd v Rogerson88 and 82. 83. 84. 85. 86. 87.

88.

BR Opeskin, ‘The Price of Forum Shopping: A Reply to Professor Juenger’ (1994) 16 Sydney Law Review at 14. (1988) 169 CLR 41. (1988) 169 CLR 172. (1993) 176 CLR 433. (1991) 174 CLR 1. Breavington v Godleman (1988) 169 CLR 41 at 73–4, 76, 88, 91, 113, 147–8, 161, 170; McKain v RW Miller Pty Ltd (1991) 174 CLR 1 at 23, 29, 50; Stevens v Head (1993) 176 CLR 433 at 452; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 212. (2000) 203 CLR 503; [2000] HCA 36.

20



Scope, Development and Purpose

1.30

Regie Nationale des Usines Renault SA v  Zhang, the High Court adopted choice of law rules for interstate and international tort cases that were specifically designed to deter forum shopping. Having said that, the High Court has since used complications in choice of law method and processes of classification to apply the law of the forum in interstate and international cases. Therefore, in the Western Australian case of Neilson v Overseas Projects Corp of Victoria Ltd,90 the High Court applied the Western Australian limitation period to a case involving a tort in China.91 And, in the Victorian case of Sweedman v Transport Accident Commission,92 the High Court applied the law of Victoria to an accident that took place in New South Wales on the contestable ground that the claim was for an indemnity and was not a tort or tort-like.93 It may be that, as an objective for conflicts law, the goal of consistency is both unrealistic and, on occasion, subversive of just results in particular cases, although it seems difficult to put Neilson and Sweedman in those categories. Universal agreement on choice of law rules is nevertheless unlikely and still would not promote consistency if, for example, they required application of the law of the forum. And, even if all countries’ choice of law rules uniformly required Ruritania’s law to be applied in a particular case, there is no guarantee that the result would be just. Ruritania’s law may be intrinsically unjust, even a ‘drag … on the coat-tails of civilisation’.94 So, forum shopping is not only regarded as inevitable; in multi-state cases, it is also a useful means of avoiding and marginalising unjust laws.95 89

1.30  While rules of private international law remain municipal laws, consistency is effectively an unattainable goal. A more realistic objective is a more general body of principles that provides some reasonable regularity in multi-state litigation. But greater consistency in outcome is more feasible within a federation. This is especially so in a relatively small federation like Australia, where there is a uniform national common law and largely uniform choice of law rules. In its 1992 Choice of Law report,96 the Law Reform Commission adopted consistency — ‘uniformity of result’ — as the main objective of the reform of choice of law rules applicable in interstate cases. The commission also preferred to pursue the goal of consistency in international cases, though this would necessarily require much more international co-operation in the development of choice of law rules than is presently even conceivable. John Pfeiffer Pty Ltd v Rogerson97 is a watershed in High Court jurisprudence on the need for a basic policy of pursuing consistent outcomes in litigation. Certainty and predictability of outcome, as well as the need to deter forum shopping, were significant reasons for the court in Pfeiffer making radical revisions of the choice of law rules for interstate torts.98 And in Neilson v  Overseas Projects Corp of Victoria Ltd,99 the 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99.

(2002) 210 CLR 491; [2002] HCA 10. (2005) 223 CLR 331; [2005] HCA 54. See 8.20–8.27. (2006) 226 CLR 362; [2006] HCA 8. See 18.38–18.39. Clark v Clark 222 A 2d 205 at 209 (1966). F K Juenger, ‘What’s Wrong with Forum Shopping?’ (1994) 16 Sydney Law Review at 5. Australian Law Reform Commission, Choice of Law, Report No 58, Canberra, AGPS, 1992. (2000) 203 CLR 503; [2000] HCA 36. At 532, 536, 538–40, 552–3, 560. (2005) 223 CLR 331; [2005] HCA 54.

21

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Private International Law in Australia

High Court elevated the goal of consistency in international litigation over and above all other goals of private international law. The court claimed in Neilson to be adopting the same outcome that it was believed that, in the circumstances of the case, a Chinese court would be inclined to give. However, there were great uncertainties in Neilson as to what a Chinese court would actually decide, showing that the search for consistency does not always give either a predictable or certain result.100

Particular justice 1.31  The fact that a case heard in the forum has contacts with another country or state might indicate to the judge that application of the other country’s or state’s law will produce a more just outcome than application of the forum’s law. Aldricus’ suggestion that a judge apply the law which is better and more useful is the oldest reason given for the application by a judge of a foreign law. Professor Robert Leflar listed ‘the better law’ as one consideration the judge should take into account when choosing between the forum’s law and the foreign law,101 and ‘the better law’ has been openly decisive in cases determined in parts of the United States.102 Otherwise, it is only rarely that judges openly admit that they are applying the forum or foreign law because it produces justice in the particular case.103 In many multi-state cases, nevertheless, the result is one which appeals intuitively to a sense of justice. Haque v Haque (No 1)104 provides an example. 1.32  The testator in Haque (No 1) was an Indian Muslim. He entered a polygamous marriage with Azra Bux, a West Pakistani Muslim, in Fremantle in 1955. They had executed a pre-nuptial agreement, by which the testator promised to regard Azra as his lawful wife and any children of the marriage as legitimate and entitled to all the rights of inheritance granted to them under Islamic law, regardless of any later will or disposition the testator might make. Subsequently, the testator made a will leaving all his property to his brother, Nural Haque. There were two children of the 1955 marriage. The testator died in 1956, and Azra and her children brought a claim in Western Australia based on the pre-nuptial agreement. Its success partly depended on the application of Islamic law, under which the polygamous marriage, the legitimacy of the children and their rights of inheritance were recognised. To the extent that it related to movable property, the High Court upheld the claim, even though a polygamous marriage had no effect under the law of Western Australia. The applicable law of the cause was held to be the law of the testator’s domicile. He was domiciled in India, and the law of India recognised Islamic law as his personal law. The court therefore ordered that the testator’s movable estate be distributed in accordance with Islamic law.

100. See 8.20–8.27. 101. R A Leflar, ‘Choice-Influencing Considerations in Conflicts Law’ (1966) 41 New York University Law Review at 267. 102. For example, Milkovich v Saari 203 NW 2d 408 (1973); Allstate Insurance Co v Hague 449 US 302 (1981). 103. Cf Siegelman v Cunard White Star Ltd 221 F 2d 189 at 206 (1955); National Bank of Greece and Athens SA v Metliss [1958] AC 509 at 525. 104. (1962) 108 CLR 230.

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Scope, Development and Purpose

1.34

1.33  For a number of reasons, justice was probably better served in Haque (No 1) by application of Islamic law than it would have been by application of the law of the forum, Western Australia. First, Islamic law as the personal law of both parties set the mental legal referent by which they were used to organising their legal relations. As the court said: ‘[I]t was an attempt by Muslims honestly and genuinely to establish a relation which Muslim law would recognise’.105 In that light, it would be unjust to upset the marriage relationship by application of the law of Western Australia, which did not figure significantly in the formation of legal relations between them. Second, application of Islamic law protected the intentions of the parties as formalised in the pre-nuptial agreement and, unlike the law of the forum, would not give effect to the testator’s attempt to renege on his promise to provide for the children of the marriage. Honouring the reasonable expectations of the parties is an important mode by which application of foreign law serves the interests of particular justice. It is naturally more important in cases like Haque (No 1) where parties’ expectations and intentions are relevant to the creation and management of the legal relationship, and is prominent in multi-state contract cases where parties are mostly free to choose the law that will govern the contractual relationship.

International and interstate comity 1.34  The doctrine of comity was the basis for the application of foreign laws according to Story, but mainly used to emphasise that a forum court had no obligation to apply the law of another country or state. Today, it is probably more important in North America than elsewhere for explaining why a foreign law might be applied. In the United States, in any case, the courts are more likely to provide policy reasons for the application of a foreign law. In interstate cases in the United States, there are constitutional considerations that sometimes compel a court in the forum state to apply the other state’s law. Occasionally, American courts appeal to the idea of comity where constitutional considerations do not operate, as when the foreign law is that of another country,106 or a Native American sovereignty.107 But despite the use of the idea of comity, it is still imprecise. In Hilton v Guyot, Gray J offered the following definition:108 ‘Comity’, in the legal sense, is neither a matter of absolute obligation on the one hand, nor of mere courtesy and goodwill upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.

Thus, comity represented some discretionary power for recognising foreign laws, short of an obligation to do so. The actual decision in Hilton v Guyot also assumed that comity imported requirements of mutuality and reciprocity between the relevant countries’ laws 105. At 249. 106. Yoder v Yoder 3330 A 2d 825 (1974); Keen Corp v Caldwell 840 SW 2d 715 (1992). 107. Marriage of Red Fox 542 P 2d 918 (1975); Brown v Babbit Ford Inc 571 P 2d 689 (1977); Leon v Numkena 689  P 2d 566 (1984); L L Vest, ‘Cross-Border Judgments and the Public Policy Exception: Solving the Foreign Judgment Quandary by Way of Tribal Courts’ (2004) 153 University of Pennsylvania Law Review 797 at 803–4. 108. 159 US 113 at 163–4 (1894).

23

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Private International Law in Australia

and so, even though foreign judgments could be recognised as conclusive in New York, a French judgment was not. French courts did not recognise any foreign judgments as conclusive, and therefore did not reciprocate the New York rule.109 However, the need for reciprocity as a precondition to the application of a foreign law is questionable, because a court does not usually make its own rules dependent on those of other countries. This form of private law retaliation is probably best avoided. It is also doubtful whether the idea of comity can be reduced to such a concrete rule. The better approach seems to be that it is a principle which obliges the forum court unilaterally to seek a reasonable accommodation between the interests of the forum and the foreign country, and the mutual interest all countries have in promoting a harmonious international legal order.110 1.35  The doctrine of comity therefore does not necessarily indicate how an accommodation between forum, foreign and international interests is to be made. It only indicates that the accommodation might possibly lead the forum court to apply a foreign law. This justifies one of Dicey’s criticisms, that comity did not explain the actual content of conflicts rules.111 It only indicated the motive, for example, for applying the law of Ruritania to a multi-state contract case. It did not explain why the law of Ruritania should be considered the proper law of the contract and should govern the outcome of the case. In Neilson v Overseas Projects Corp of Victoria Ltd,112 Gummow and Hayne JJ said that ‘comity is “either meaningless or misleading”; it is “a matter for sovereigns, not for judges required to decide a case according to the rights of the parties”’. That much is true, and it is not a criticism that can be made as easily of consistency and particular justice as reasons for applying a foreign law.

109. Hilton v  Guyot 159 US 113 at 227–8 (1894). See also Schibsby v  Westenholz (1870) LR 6 QB 155 at 159; Travers v Holley [1953] P 246 at 257. 110. Société Nationale Industrielle Aérospatiale v United States District Court for the Southern District of Iowa 482 US 522 at 555 (1986). 111. Dicey, above n 16, pp 10–11. 112. (2005) 223 CLR 331 at 363; [2005] HCA 54.

24

PART 2 Jurisdiction and Judgments

Chapter 2 Personal Jurisdiction Introduction 2.1  ‘Jurisdiction’ has a number of different meanings, but in private international law, it refers to the authority that a court has to deal with a particular case, according to its own rules of competence. The rules of jurisdiction in private international law therefore indicate when, according to the law of the forum, a court can hear and determine particular multistate cases. In this chapter and Chapters 3 and 4 the discussion is limited to the rules of jurisdiction — under the laws of Australian states and territories — in personal actions. These are actions in which the technical object is to establish a claim against a person.1 In practical terms, the plaintiff brings the action to compel the defendant personally to perform (or not to perform) an act or to pay the plaintiff a sum of money. Personal actions include the most common claims brought in relation to contracts, torts and property rights, and equitable suits for specific performance and injunctions. They do not include matrimonial causes, proceedings between de facto couples, or proceedings concerning the care of, or responsibility for, children. The special rules relating to the original jurisdiction of the Family Court in these matters are discussed in Chapters 14 and 15. In Australia, a court’s jurisdiction in a multi-state case also depends on whether the rules of jurisdiction originate in the common law or statute, and whether the defendant is in another state or territory or in another country. Therefore, a distinction is made between jurisdiction at common law, jurisdiction in interstate cases, and jurisdiction in international cases.2 2.2  At the outset, it should be emphasised that a court will not necessarily hear a case just because these rules of personal jurisdiction are satisfied. In addition to personal jurisdiction, the court must also have subject matter jurisdiction to determine the case. Subject matter jurisdiction is discussed in Chapter 3. Further, a court may decline to exercise jurisdiction in a multi-state case even though it has both personal and subject matter jurisdiction. This is discussed in Chapter 4. And while, under its own law, a court may have jurisdiction, and may exercise that jurisdiction, in a multi-state case it is possible that the forum court’s judgment has to be enforced in another legal system. If an Australian judgment has to be enforced outside the forum, the effect of the judgment depends on that other legal system’s 1. 2.

Tyler v Judges of the Court of Registration 55 NE 812 at 814 (1900). Subsequently, in the notes in this chapter, references to the following Rules will be to jurisdiction only: Federal Court Rules 2011 (Cth); High Court Rules 2004 (Cth); Court Procedures Rules 2006 (ACT); Uniform Civil Procedure Rules 2005 (NSW); Supreme Court Rules 1987 (NT); Uniform Civil Procedure Rules 1999 (Qld); Supreme Court Civil Rules 2006 (SA); Supreme Court Rules 2000 (Tas); Supreme Court (General Civil Procedure) Rules 2015 (Vic); Supreme Court Rules 1971 (WA).

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Private International Law in Australia

rules relating to foreign judgments. The effect of an Australian judgment in a foreign legal system depends on the private international law of that foreign country. It is the foreign private international law that has to be consulted before a prediction can be made whether, in a multi-state case, the exercise of jurisdiction by an Australian court is likely to lead to a judgment that can be enforced internationally. The grounds on which the judgment of a foreign or interstate court can be enforced in Australian courts are considered in Chapter 5.

Personal jurisdiction at common law 2.3  Australian courts will be jurisdictionally competent if they have both subject matter jurisdiction over the particular claims and defences, and personal jurisdiction over the parties to the dispute. Historically, the law has been more concerned with personal jurisdiction than with subject matter jurisdiction.3 In terms of subject matter jurisdiction, the superior courts of the states and territories have general common law and equitable jurisdiction. The Federal and Family Courts’ subject matter jurisdiction is limited to those matters granted by statute. These prima facie limitations may be subject to the accrued jurisdiction of the Australian courts. The parties to the dispute cannot invest a court with jurisdiction that it otherwise lacks. There are a number of specific limitations to the courts’ subject matter jurisdiction which only arise in international disputes, and which are discussed in Chapter 3. 2.4  In Australian law, the law of personal jurisdiction principally concerns the amenability of the defendant to service of process, which is taken to establish the courts’ jurisdictional competency.4 The plaintiff ’s action in commencing proceedings is treated as a submission to the jurisdiction, including to any related cross- and counter-claims that the defendant may raise.5 2.5  It is often said that there are only two grounds of personal jurisdiction at common law: the defendant is present in the forum at the time of service; and the defendant has submitted to the jurisdiction of the forum court.6 Otherwise, an Australian court only has jurisdiction over individuals outside its own territorial limits where an extraterritorial jurisdiction has been validly conferred on the court by statute.7

Presence 2.6  The basic rule by which a court’s jurisdiction is established at common law is that the defendant must be amenable to the court’s initiating process, which in most personal actions is a writ of summons, in some Australian jurisdictions called a ‘claim’.8 Under English common law, the King’s writ originally only ran within the territorial limits of the 3. 4. 5. 6. 7. 8.

Laurie v Carroll (1958) 98 CLR 310 at 322; cf Flaherty v Girgis (1987) 162 CLR 574 at 598. Laurie v Carroll (1958) 98 CLR 310 at 323–4. National Commercial Bank v  Wimborne (1979) 11 NSWLR 156 at 174; Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223 at 232–3; Nudd v Taylor [2000] QSC 344. For criticism, see A Dickinson, ‘Keeping Up Appearances: The Development of Adjudicatory Jurisdiction in the English Courts’ (2016) 86 British Yearbook of International Law 6. Mercedes Benz AG v Leiduck [1996] AC 284 at 297. John Russell and Co Ltd v Cayzer, Irvine and Co Ltd [1916] 2 AC 298 at 302.

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Personal Jurisdiction

2.8

kingdom, and so presence in England at the time of service was required before a person was brought under the court’s jurisdiction. In Australia, this means that a Supreme Court will have power to hear and determine an action when the defendant is physically present in the relevant state or territory at the time of service,9 and that the Federal Court and the High Court (in its original jurisdiction) will have power to hear and determine an action when the defendant is physically present in Australia at the time of service.10 The rule begs three questions — when, for how long and for what purpose must the defendant be present in the forum if jurisdiction is to be properly established on this basis? 2.7  Legal proceedings are commenced by the plaintiff (or applicant), although for the most part they are commenced by lawyers on the plaintiff ’s behalf. The plaintiff prepares the ‘initiating process’ (a writ, application, claim, originating summons, motion or petition) and has that document filed and checked (for formalities) in the court registry. If the initiating process is in order, the court registry ‘issues’ it. The plaintiff must then arrange for the initiating process to be ‘served’ on the defendant (or respondent). This is generally achieved by handing the initiating process to the defendant in person or, for a corporate defendant, delivering it to the corporation’s office. At common law, a plaintiff ’s right to a court’s jurisdiction can depend on where the defendant was when the initiating process was issued or served. There is no jurisdiction over a person who has been in the territory of the forum, but who left it before initiating process was issued. Laurie v Carroll  11 involved a contractual dispute between Laurie, a theatrical agent in London, and Carroll, a theatrical entrepreneur in Melbourne, over profits arising from Dame Margot Fonteyn’s 1957 Australian tour. Laurie was in Victoria between 11 and 13 June 1957 for Dame Margot’s Melbourne performances, and then travelled to Sydney. The writ in the action issued out of the Supreme Court of Victoria on 14 June. Laurie had been involved in negotiations to settle the dispute, and was aware that Carroll might sue. He left Australia on 20 June, without ever having been served with the writ. Carroll applied on 21 June for an order allowing substituted service of the writ on Laurie’s solicitors in Melbourne. Herring CJ made the order, but Laurie successfully appealed to the High Court to have the order set aside. Laurie had left Victoria one day before the writ was issued, and was therefore outside the jurisdiction of that state’s Supreme Court. 2.8  The High Court’s judgment in Laurie v Carroll also included useful dicta on the point at which a court would establish jurisdiction over a potential defendant. The basic principle on which jurisdiction rests, according to Dixon CJ and Williams and Webb JJ, is that, at the issue of the writ, the defendant ‘may be regarded as falling under the command of the writ as an exercise of jurisdiction’. However, their Honours added that it was the service of the writ which perfected the defendant’s duty to obey its command to appear before the court.12 So, jurisdiction is established when the defendant is served within the forum, even if the defendant subsequently leaves.13 Conversely, jurisdiction is not generally established over a person who is in the forum at the time initiating process is issued but who leaves 9. 10. 11. 12. 13.

Hiralal v Hiralal [2013] NSWSC 984 at [71]. The jurisdiction of the Family Courts is regulated differently: see 14.4–14.9. (1958) 98 CLR 310. At 328. Razelos v Razelos (No 2) [1969] 3 All ER 929.

29

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Private International Law in Australia

before it can be served. In these circumstances, the court in Laurie v Carroll recognised an exception: a person who left the place after initiating process was issued and who either knew that process had been issued or who left to evade service of process will be regarded as within the jurisdiction of the court.15 Here, the court may order substituted service on the defendant as physical service of initiating process has failed. This understanding of Laurie v Carroll was accepted by the defendant in Joye v Sheahan.16 There, the Full Court of the Federal Court held that there was jurisdiction in proceedings where the defendant was in Australia at the time a summons was issued, but had left Australia before being served but while knowing of the issue of the summons. 14

2.9  The basic principle is therefore that jurisdiction is established when the defendant is served within the territorial limits of the forum court. It does not matter that the defendant’s presence there is temporary.17 Even if the defendant is merely in transit through the forum territory, if served with a forum writ the forum courts would seem to have jurisdiction. For this reason, it is known as ‘transit’ or ‘tag’ or ‘gotcha!’ jurisdiction. Indeed, it was held in Grace v Macarthur18 by a United States district court in Arkansas that initiating process was validly served on the defendant in an aircraft when, in the course of a flight between Tennessee and Texas, it passed through Arkansas airspace. Grace v  Macarthur is not necessarily good authority in some parts of the United States, where more substantial contacts with the state are required before jurisdiction is properly established.19 However, in other states, transit jurisdiction is regarded as valid.20 In Australia, although Grace v Macarthur is compatible with the stronger principles of territoriality that the High Court accepted in Laurie v Carroll, it seems unlikely that jurisdiction would be established if the defendant were only in the forum’s airspace at the time initiating process was issued.21 2.10  In general, the purpose for which the defendant is inside the territorial borders of the forum is irrelevant to the question of the forum court’s jurisdiction. There is an established exception to this general principle if the plaintiff tricked, fraudulently enticed or physically coerced the defendant inside the borders of the forum territory in order to have 14. 15. 16. 17. 18. 19. 20.

21.

Andressen v Bendigo and Adelaide Bank Ltd [2016] SASC 111. Leave to appeal from this decision has been granted: Andressen v Bendigo and Adelaide Bank Ltd (No 2) [2017] SASC 25. (1958) 98 CLR 310 at 328; Mobil Oil Australia Pty Ltd v State of Victoria (2002) 211 CLR 1 at 23, 36; [2002] HCA 27. (1996) 62 FCR 417 at 421–2. Colt Industries Inc v Sarlie [1966] 1 All ER 673; Maharanee Baroda v Wildenstein [1972] 2 QB 283; Mobil Oil Australia Pty Ltd v State of Victoria (2002) 211 CLR 1 at 23, 36; [2002] HCA 27. 170 F Supp 442 (1959). Nehemiah v Athletics Congress of the USA 765 F 2d 42 (1985); Harold M Pitman Co v Typecraft Stoneware Ltd 626 F Supp 305 (1986). Burnham v Superior Court of California 495 US 604 (1990); Cariaga v Eighth Judicial District Court 762 P 2d 886 (1988); Aluminal Industries Inc v Newtown Commercial Associates 89 FRD 326 (1980). The US Supreme Court has significantly narrowed the scope of general jurisdiction in a series of recent cases and it has been argued that transit jurisdiction as endorsed in Burnham ‘is completely inconsistent with the solicitude expressed for general defendants in Goodyear and Daimler’: J W Stempel, ‘The Irrepressible Myth of Burnham and Its Increasing Indefensibility after Goodyear and Daimler’ (2015) 15 Nevada Law Journal 1203 at 1210. This pattern of narrowing the scope of general jurisdiction has continued with the Supreme Court’s decision in Bristol-Myers Squibb Co v Superior Court of California, San Francisco County 582 US __ (2017). Joye v Sheahan (1996) 62 FCR 417 at 421.

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2.12

the defendant served. This exception is based on the court’s inherent power to prevent the plaintiff abusing the process of the court. However, it is in only the most extreme cases that the exception is likely to upset the court’s jurisdiction. For example, the exception will not be admitted when the defendant is brought inside the forum’s borders through extradition proceedings,23 or in obedience to a subpoena,24 or where service of the writ was not the only reason why the plaintiff invited the defendant into the forum.25 In Perrett v Robinson,26 the claim was raised that the plaintiff and Robinson, the first defendant, conspired to defraud FAI Insurance, the second defendant, and that service of the writ on Robinson should be set aside. Robinson had caused injury to the plaintiff in a motor vehicle accident in the Northern Territory, where damages for future economic loss were not recoverable. The plaintiff therefore sued in Queensland where full common law damages could be awarded. He asked Robinson to travel into that state, and there accept service of the writ. Robinson willingly complied, as any damages award would ultimately be borne by the insurer, FAI. In the Full Court of the Supreme Court of Queensland, FAI’s argument against jurisdiction was rejected on the ground that no fraud had been committed. To Connolly J, the company could not have been defrauded since, under the contract of insurance, it had agreed to bear liability for any damages awarded in Queensland. McPherson J held that, in any event, even if FAI were the real defendant to the action it had a presence in the state as it conducted business there, and so it was within the jurisdiction of the Supreme Court. 22

2.11  Similar principles apply in personal actions against a company. The company must have some presence inside the forum’s territorial bounds to be properly subject to the jurisdiction of the forum court. However, as a company’s separate legal identity is a legally constructed fiction, it naturally does not have a tangible presence anywhere. So, at common law a company is considered to be present in a place and within the common law jurisdiction of its courts if it carries on business there. In National Commercial Bank v Wimborne,27 Holland J identified three criteria that tend to establish that a company is carrying on a business in the forum. These are: • the company is represented in the forum by an agent who has authority to make binding contracts with persons in the place; • the business is conducted at some fixed and definite place in the forum; and • the business has been conducted in the forum for a sufficiently substantial period. The court has no jurisdiction over a company which terminates its business in the forum before being served with initiating process in the action.28 2.12  Federal legislation extends the common law rules by ensuring that every company conducting business in Australia is amenable to the jurisdiction of all federal, state and territory courts, even if the company does not conduct business in the forum state or 22. 23. 24. 25. 26. 27. 28.

Stein v Valkenhuysen (1858) EB and E 65; 120 ER 431; Laurie v Carroll (1958) 98 CLR 310 at 331. John Sanderson and Co (NSW) Pty Ltd v Giddings [1976] VR 421. Baldry v Jackson [1976] 1 NSWLR 19. Watkins v North American Land and Timber Co (Ltd) (1904) 20 TLR 534. [1985] 1 Qd R 83. (1979) 11 NSWLR 156 at 165. Queensland v Property Nominees Pty Ltd (1982) 6 ACLR 739 at 745–6.

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territory. The Corporations Act 2001 (Cth) requires any foreign company intending to carry on business in Australia to be registered with the Australian Securities and Investments Commission, and to nominate a registered office and a local agent in Australia.29 Any local or foreign company can be served by leaving the initiating process at its registered office or, for a foreign company, with its local agent, or by sending it to the registered office or local agent by post.30 Although the Corporations Act is federal legislation, the company must still nominate a state or territory for registration.31 However, even if the company is registered in a different state or territory to the forum it will still be amenable to the initiating process of forum courts served in accordance with the provisions of the Service and Execution of Process Act 1992 (Cth).32

Submission 2.13  The second general means by which, at common law, the court has jurisdiction over a person is by that person’s consent or voluntary submission to the court’s jurisdiction. There are two particular means by which this submission might be established: authorising lawyers to accept service within the forum; and conduct inconsistent with a protest against jurisdiction.

Instructing lawyers to accept service 2.14  The person who knows that litigation is pending may instruct a lawyer to accept service of initiating process on their behalf. A foreign party may include a provision in a contract which authorises a lawyer within the jurisdiction to accept service on its behalf, which is called a service of suit clause. Jurisdiction is established once the lawyer is served. The rules of all superior courts in Australia provide for this mode of service.33

Submission by conduct 2.15  A party may be taken to have submitted to the jurisdiction if its conduct is inconsistent with a protest against the jurisdiction. The clearest example is the entry of an unconditional appearance in response to the plaintiff ’s service of initiating process, in those jurisdictions which allow the defendant to enter an unconditional appearance.34 A defendant that does not intend to submit to the court’s jurisdiction generally has two alternative courses. First, the defendant may refuse to enter an appearance. In New South Wales, this is the only course open to a person served who denies the Supreme Court’s jurisdiction, but the rules provide that the defendant may apply to have service set aside without having entered an appearance.35 Second, in all jurisdictions except the Federal Court, New South Wales and 29. 30. 31. 32. 33. 34. 35.

Corporations Act 2001 (Cth) s 601CD. Corporations Act 2001 (Cth) s 109. Corporations Act 2001 (Cth) s 119A. Service and Execution of Process Act 1992 (Cth) ss 9, 15; see 2.24–2.27. FCt r 10.22; HCt r 9.01.1(a); ACT r 6464; NSW r 10.13; NT r 6.08; Qld r 115; SA r 67(1)(c); Tas r 134; Vic r 6.09; WA O 9 r 1(2). ACT r 1000; NSW r 6.9; NT r 8; Qld rr 135–137, 144(4); SA r 92; Tas r 154; Vic r 8.03; WA O 12. See Re Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104 at [16]. NSW rr 11.4, 12.11.

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South Australia, the defendant may enter a conditional appearance, by which that person may challenge the plaintiff ’s assertion of jurisdiction.36 In South Australia, it is possible to enter an appearance and then challenge jurisdiction, because the rules provide that entry of an appearance is not deemed to be a submission to the jurisdiction of the Supreme Court.37 In none of these cases can submission to jurisdiction be inferred.38 2.16  A defendant who actively challenges the jurisdiction of the court must act consistently with a protest against jurisdiction, because a tacit concession of the court’s right to hear and determine the merits of the plaintiff ’s claim will be taken as submission to jurisdiction. The test is whether the defendant has by its conduct waived its right to challenge jurisdiction. In National Commercial Bank v Wimborne, Holland J stated that in order to establish such a waiver, ‘the facts must show a voluntary act unequivocally evincing an intention to abandon or not assert a right’.39 This is always a question of fact, and if the defendant consistently maintains its objection to jurisdiction, it will not be taken as having submitted even if it makes other applications which go beyond a protest to the jurisdiction. In Laurie v Carroll, the primary judge had granted an order for substituted service and an interim injunction. The foreign defendant sought to have both the order and the injunction discharged, and the plaintiff argued that the application to have the injunction discharged should be treated as a voluntary submission or a waiver of the right to contest jurisdiction. The High Court held that the defendant had neither submitted nor waived his objection to jurisdiction because the application to have the injunction discharged was ‘coupled with an objection to the jurisdiction’.40 The defendant may be taken to have submitted to the jurisdiction where they agreed to allow the substantive claim to be heard;41 where the defendant’s lawyer made oral submissions on the merits;42 where the defendant counterclaimed on a ground related to the plaintiff ’s claim;43 where the defendant consented to interlocutory orders in the cause;44 where the defendant argued against the extension of the limitation period applicable to the claim;45 where the defendant produces documents in response to a subpoena;46 or where the defendant applied for an order for security for costs.47 There are, nevertheless, some

36. 37. 38. 39. 40. 41. 42.

43.

44. 45. 46. 47.

HCt r 23.03; ACT r 111; NT r 8.08; Qld r 144; Tas r 168; Vic r 8.08; WA O 12 r 6; see, for example, Mutch v Dalley [1923] St R Qd 138; Safran v Chani (1969) 14 FLR 128. SA r 92(3)(a). Re Dulles’ Settlement (No 2); Dulles v Vidler [1951] Ch 842; [1951] 2 All ER 69. (1979) 11 NSWLR 156 at 176. (1958) 98 CLR 310, 335. Rimini Ltd v Manning Management and Marketing Pty Ltd [2003] 3 NZLR 22 at 30. Boyle v Sacker (1888) 39 Ch D 249; Re Dulles’ Settlement (No 2) [1951] Ch 842, 847, cited with approval in National Commercial Bank v Wimborne (1979) 11 NSWLR 156, 177, and applied in City of Swan v McGrawHill Companies, Inc (2014) 99 ACSR 280; [2014] FCA 442 at [117]. National Commercial Bank v  Wimborne (1979) 11 NSWLR 156 at 174; Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223; Drill-Tec GmbH Grossbohr-und-Umwelttechnik v Campbell [2002] NSWSC 1173 at [64]. Esal (Commodities) Ltd v Pujara [1989] 2 Lloyd’s Rep 479. Portelli v Seltsam Ltd [1988] VR 377. Walker v Newmont Australia Ltd [2010] FCA 298. Lhoneux, Limon & Co v Hong Kong & Shanghai Banking Corp (1886) 33 Ch D 446; cf White v Hardwick (1922) 23 SR (NSW) 6.

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exceptions to the general principle.48 The most important relates to applications that the action should be stayed on the ground of forum non conveniens: that is, that the court is a clearly inappropriate forum for the determination of the dispute. The application for a stay proceeds on the assumption that the court has jurisdiction, but the defendant argues that in the exercise of its discretion the court should decline that jurisdiction. In Williams and Glyn’s Bank Plc v Astro Dinamico Cia Naviera SA,49 the House of Lords held that, when coupled with an actual denial of jurisdiction, an application for a stay on the alternative ground of forum non conveniens did not constitute submission to the jurisdiction of the English court.50 It is probably not a submission to the court’s jurisdiction to make requests for further and better particulars of the plaintiff ’s claim, when they are not filed in the court or the subject of orders it makes.51

Personal jurisdiction in interstate cases 2.17  There is now an extensive scheme of statute law enabling all courts in Australia to hear and determine interstate cases, by which is meant cases involving people or circumstances having contacts with more than one state or territory of Australia. The Federal Court and the High Court (in its original jurisdiction) naturally have personal jurisdiction over any person present in Australia, and a plaintiff in one state or territory can therefore have a person in another state or territory served by initiating process issued out of either court. However, the subject matter must still be such as is properly raised in a federal jurisdiction if either court is to have power to determine the claim. Unlike the position for service of process issued out of the federal courts, in an interstate case, if the forum is a state or territory court, service of initiating process outside the forum will be required, and therefore in most cases recourse must be had to the statute law that enables extraterritorial service within Australia.

Diversity jurisdiction 2.18  The High Court of Australia has original jurisdiction in a small number of matters that have a specifically federal dimension. In terms of personal actions, the most important is the ‘diversity jurisdiction’ granted by s 75 of the Australian Constitution. In particular, s 75(iv) provides that the High Court has original jurisdiction in ‘all matters … between residents of different States’. This is modelled on a provision in the Judiciary Act 1789 (US), although in the United States, lower federal courts exercise a much more extensive diversity jurisdiction than is available in the High Court of Australia. Since the High Court’s diversity jurisdiction is guaranteed by the Constitution, the Federal Parliament has no power to limit it. However, it is hardly appropriate that parties have the right to demand a trial in the nation’s highest appellate court simply because they reside in different states. The High Court itself has 48. 49. 50. 51.

For example, Laurie v Carroll (1958) 98 CLR 310; Zwillinger v Schulof [1963] VR 407. [1984] 1 All ER 760. Cf Astro Exito Navegacion SA v Southland Enterprise Co Ltd (No 2) (The Messiniaki Tolmi) [1982] QB 1248; Finnish Marine Insurance Co Ltd v Protective National Insurance Co [1990] 1 QB 1078. Williams v The Society of Lloyd’s [1994] 1 VR 274 at 294.

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therefore narrowed the actual exercise of its diversity jurisdiction by restrictive interpretation of s 75(iv), and has statutory powers to remit diversity cases to federal, state and territory trial courts. 2.19  The High Court has held that, to establish diversity jurisdiction, the plaintiff must prove that the parties are residents of different states at the time the action is brought.52 Therefore, the jurisdiction is not established when the parties have been residents of different states, but at the time initiating process is issued they both live in the same state or one party lives in another country.53 Thus, the critical issue is the parties’ residence, and it is here that the High Court has confined the jurisdiction to almost the narrowest grounds possible. In Australasian Temperance and General Mutual Life Assurance Society v Howe,54 Isaacs J held that a person can be considered resident in a particular state if their residential connection with the state is such that the person is identified with that state as opposed to all other states. For purposes of diversity jurisdiction, a person can therefore only be a resident of one state. So long as the parties are identified with different states to this extent, the length of residence in each state is irrelevant.55 Much potential litigation before the High Court under s  75(iv) was effectively excluded by the court’s ruling in Howe that a ‘resident’ must be a natural person. In consequence, there is no right to bring a matter before the High Court where either party to the dispute is a corporation, or to join a third party which is a corporation.56 But the court has made some concession to substance over form in recognising the right to diversity jurisdiction in actions claiming relief against the resident of another state by prerogative writ, even though in such actions the Crown is formally the prosecuting party and is not considered a resident of a different state.57 2.20  There is no decision suggesting that diversity jurisdiction exists where one party is a resident of a federal territory or where both parties are resident in different federal territories. Even if such an action is within the spirit of the High Court’s diversity jurisdiction, it is not technically embraced by s  75(iv). The High Court’s consistently narrow approach to the provision suggests that it would most likely deny that it had original jurisdiction in cases where at least one party was a resident of a territory. 2.21  The question arises as to what law the High Court is to apply when it actually does exercise its diversity jurisdiction. Obviously, any relevant federal statutes will be applicable. However, diversity jurisdiction more frequently involves private litigation which is regulated by state or territory law. In these cases, the applicable law is determined by ss 79 and 80 of the Judiciary Act 1903 (Cth), which apply to the High Court when it is exercising any original jurisdiction.58 These provisions require the High Court to apply the laws of the state or territory in which it is sitting, including those laws relating to procedure, evidence and the competency of witnesses. Importantly, they also include that state’s or territory’s private 52. 53. 54. 55. 56. 57. 58.

Dahms v Brandsch (1911) 13 CLR 336. Cf Watson & Godfrey v Cameron (1928) 40 CLR 446; Gardner v Wallace (1995) 184 CLR 95 at 97. (1922) 31 CLR 290 at 324. R v Oregan; Ex parte Oregan (1957) 97 CLR 323. Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22; 62 ALR 1; Rochford v Dayes (1989) 84 ALR 405. R v Macdonald; Ex parte Macdonald (1953) 88 CLR 197. Musgrave v Commonwealth (1937) 57 CLR 514 at 532.

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international law. There seems little doubt that these provisions can lead to forum shopping within the High Court. The opportunity might arise, for example, in an action between a resident of one state where the limitation period is yet to expire and a resident of a second state where it has expired. The plaintiff might be able to escape the risk of having the action statute-barred by commencing proceedings in the High Court’s registry in the first state, as ss 79 and 80 require the court to apply the first state’s law and its longer limitation period.59 But, if the case is such that choice of law rules require a court in the first state to apply the law of the second state as the governing law, even in diversity jurisdiction the High Court will have to apply the limitation period of the second state.60 2.22  The High Court has a general power to remit matters to other courts, and this is the primary means it uses to avoid trying cases in the exercise of its diversity jurisdiction. Section 44 of the Judiciary Act 1903 (Cth) enables a remission to be made on the application of either of the parties or on the court’s own motion, to any federal, state or territory court that has jurisdiction with respect to the subject matter and the parties. In effect, these limitations only mean that the High Court must remit to a court that has jurisdiction in the same kind of action as that being remitted. Under s 44, so long as the High Court exercises the power of remission properly, the remission itself is the source of the lower court’s jurisdiction. There is no other need for the lower court to have had personal jurisdiction over the parties at common law or on some other statutory ground.61 2.23  Though broad, the power to remit is limited by some basic principles. In the first place, the remission is not to change the rights of the parties. The matter can therefore only be remitted to a court in a state or territory which would recognise the parties’ rights as they stand in the High Court: that is, before the remission is made.62 For example, the plaintiff in Gardner v Wallace63 hoped to have the matter remitted by the High Court — sitting in Melbourne — to a Queensland court. The action related to a personal injury he suffered on the Gold Coast, and it was arguable that in Queensland no limitation period was applicable.64 However, Dawson J held that the law of Victoria would apply in the action brought in the High Court, and thought that a remission to Queensland was unlikely as it would alter the law applicable to the case. The decision was made in a conscious attempt to discourage the plaintiff ’s forum shopping.65 Second, where the remission can be made to more than one court without changing the rights of the parties, it is made to the most appropriate court. The judgment about appropriateness is made by reference to considerations of convenience, such as the place where the parties to the action or the relevant witnesses happen to reside.66

59. 60. 61. 62. 63. 64. 65. 66.

Cf Pedersen v Young (1964) 110 CLR 162; Gardner v Wallace (1995) 184 CLR 95. See 7.47–7.49. Johnstone v Commonwealth (1979) 143 CLR 398 at 408; Weber v Aidone (1981) 36 ALR 345. State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 154 CLR 579 at 586. (1995) 184 CLR 95. Pedersen v Young (1964) 110 CLR 162; Fielding v Doran (1984) 60 ALR 342. Gardner v Wallace (1995) 184 CLR 95 at 100. Guzowski v Cook (1981) 149 CLR 128; Weber v Aidone (1981) 36 ALR 345.

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Service and Execution of Process Act 1992 (Cth) 2.24  The main source of jurisdiction in intra-Australian cases is the Service and Execution of Process Act 1992 (Cth). This important statute completed more than a century of reforms by which provision for the service of initiating process throughout Australia was simplified and liberalised. The first experiment in this sphere was the Federal Council of Australasia’s Australasian Civil Process Act 1886, which allowed a writ issued out of a Supreme Court in one participating colony to be served in another participating colony. The action had to be based on one of the grounds of subject matter jurisdiction described in the Australasian Civil Process Act, which were modelled on the grounds for extraterritorial service outlined in the Common Law Procedure Act 1852 (UK) and its progeny. Thus, for example, the action had to relate to a contract made in the colony, a tort occurring in the colony and so on. The Australasian Civil Process Act potentially included Fiji and New Zealand as participating colonies, but the Federal Council was generally handicapped by New South Wales’ refusal to participate and South Australia’s participation for only a short period. The council’s powers in respect of the service of process were reproduced in the Australian Constitution, and the Australasian Civil Process Act provided the framework for the Service and Execution of Process Act 1901 (Cth). 2.25  The Act of 1901 therefore only secured jurisdiction in an interstate case when the plaintiff could prove that the action could be based on one of the grounds of jurisdiction which required a relevant connection with the state or territory. These connections were of the same kind as the grounds of jurisdiction still found in the state and territory rules of court.67 Much of the case law interpreting the rules of court was therefore also relevant for interpreting the Service and Execution of Process Act 1901. Indeed, it was open to a plaintiff to justify service of a defendant in another state or territory on the basis of the Act of 1901, or the rules of court, or both.68 The Act of 1901 allowed process issued out of any state or territory ‘Court of Record’ to be served in another state or territory. It was not necessary to obtain the leave of the court to serve interstate, and if the defendant entered an appearance, jurisdiction was established. However, if the defendant failed to appear the plaintiff had to prove that the action was based on one of the grounds of subject matter jurisdiction set out in s 11 of the Act.69 Thus, the action had to relate to a contract made in the state or territory, a tort occurring in the state or territory and so on. In 1987, the Australian Law Reform Commission recommended the removal of any requirement that there was a relationship between the subject matter of the action and the forum state or territory, so long as some procedure was available to determine the most appropriate forum for trial of the action.70 This recommendation eventually led to the enactment of the 1992 Act. 2.26  The Service and Execution of Process Act 1992 governs the interstate service of any initiating process issued out of a state or territory court. It applies to all superior and inferior

67. 68. 69. 70.

See below 2.48 ff. Flaherty v Girgis (1987) 162 CLR 574. Luke v Mayoh (1921) 29 CLR 435 at 439. Australian Law Reform Commission, Service and Execution of Process, Report No 40, Canberra, AGPS, 1987, pp 84–5.

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tribunals having the status of a court under state or territory law.71 It provides that ‘initiating process’ issued out of any state or territory court can be served anywhere in Australia, and is to be served as the rules of the court of issue require.72 That initiating process must be accompanied by certain notices prescribed in the Act, which advise the defendant of their rights as to jurisdiction and to contest the action.73 The plaintiff ’s failure to include such a notice has been held to be a mere irregularity that can be waived by the defendant, as in the case where the defendant contests the merits of the claim.74 Process served interstate in accordance with the legislation takes effect as if it had been served in the state or territory of the court of issue.75 The defendant is also to enter an appearance to the initiating process as the rules of the court of issue require,76 and unless the plaintiff obtains an abridgment of the period in which the defendant must enter an appearance the defendant must do so within 21 days.77 Further, if the defendant wishes to challenge the jurisdiction of the court of issue the defendant can only do so in accordance with that court’s rules.78 2.27  This simple regime effectively extends the personal jurisdiction of all state and territory courts to the whole of Australia and its external territories, and gives them all the right to compel the appearance of any person anywhere in the country or an external territory. The legal right to jurisdiction in any personal action served within Australia is therefore undoubted, though it should be reiterated that in all cases the courts have discretionary powers to decline the jurisdiction or, in the case of the Supreme Courts, to transfer such cases to another court.79 The Service and Execution of Process Act thereby renders other statutory provision for interstate service obsolete. In most interstate cases, the Service and Execution of Process Act probably rendered the extension of the Supreme Courts’ personal jurisdiction under the state and territory cross-vesting legislation superfluous, and possibly even invalid.80 There might possibly remain some cases where the cross-vesting legislation adds to the Supreme Courts’ jurisdiction, and others where it is important to know whether a court is exercising cross-vested jurisdiction or jurisdiction under the Service and Execution of Process Act.81

Cross-vested jurisdiction 2.28  The federal, state and territory parliaments have all passed Jurisdiction of Courts (Cross-vesting) Acts to resolve jurisdictional problems which had arisen between federal courts on the one hand, and state and territory Supreme Courts on the other.82 The cross-vesting 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82.

Service and Execution of Process Act 1992 (Cth) s 3. Service and Execution of Process Act 1992 (Cth) s 15. Service and Execution of Process Act 1992 (Cth) s 16. C and P Trading Pty Ltd v Roladuct Spiral Tubing Pty Ltd [1994] 2 Qd R 247 at 249. Service and Execution of Process Act 1992 (Cth) s 12. Service and Execution of Process Act 1992 (Cth) s 14. Service and Execution of Process Act 1992 (Cth) s 17. Service and Execution of Process Act 1992 (Cth) s 17. See 4.58–4.80. See 2.33. See 12.30–12.36. Jurisdiction of Courts (Cross-vesting) Act  1987 (Cth); Jurisdiction of Courts (Cross-vesting) Act  1993 (ACT); Jurisdiction of Courts (Cross-vesting) Act  1987 (NSW); Jurisdiction of Courts (Cross-vesting)

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scheme aims generally to close gaps which had developed between federal and Supreme Court jurisdictions, and to end conflicts between them. These objectives are stated in the preamble to the Cross-vesting Acts: … it is desirable … to establish a system of cross-vesting of jurisdiction between [federal, state and territory] courts, without detracting from the jurisdiction of any court …

To this end the scheme provides for the jurisdiction of most superior courts in Australia to be invested in almost every other,83 subject to a requirement that superior courts must transfer an action to another superior court in some cases.84 The Act also provides for the application of special choice of law rules in courts which are possibly exercising cross-vested jurisdiction.85 This section only considers the nature of the cross-vesting of jurisdiction effected by the scheme. 2.29  The original intention of the cross-vesting scheme was that all federal, state and territory superior courts would, for the most part, exchange jurisdictions: that is, that these jurisdictions would be cross-vested. This has not been the result, as it has been held that the two federal courts involved — the Federal Court of Australia and the Family Court of Australia — cannot receive the jurisdictions of the state Supreme Courts or probably, if given by territory legislation, those of the territory Supreme Courts. In Gould v Brown86 the High Court, although only by a technical majority of three judges (Brennan CJ and Toohey and Kirby JJ) to three (Gaudron, McHugh and Gummow JJ), affirmed a decision of the Full Court of the Federal Court that federal courts could validly receive state jurisdictions. The even division of the court on this point soon changed, and in Re Wakim; Ex parte McNally87 a new majority of six judges (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) to one (Kirby J) held that, because under the Constitution a federal court could be invested by the Commonwealth Parliament with federal jurisdiction, the Constitution carried a ‘negative implication’ that a federal court not be validly invested with a non-federal jurisdiction. As a result, the attempt to invest state jurisdictions in the federal courts under the cross-vesting legislation was invalid. Although it is less clear, it appears from the judgment of Gummow and Hayne JJ in Wakim that, when an attempt to invest territory jurisdictions in federal courts is made by territory legislation, this also is invalid.88 However, where territory jurisdiction is invested in federal courts by federal legislation, it is

83. 84. 85. 86. 87. 88.

Act (NT); Jurisdiction of Courts (Cross-vesting) Act  1987 (Qld); Jurisdiction of Courts (Cross-vesting) Act  1987 (SA);  Jurisdiction of Courts (Cross-vesting) Act  1987 (Tas); Jurisdiction of Courts (Crossvesting) Act 1987 (Vic); Jurisdiction of Courts (Cross-vesting) Act 1987 (WA). The federal Act deals with the jurisdiction of the federal courts, and the Supreme Courts of the external territories. References in this chapter are to the federal Act, and to the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), which is identical to the other state and territory legislation. Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4; Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 4. Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 5; Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 5. These provisions are discussed in detail at 4.59–4.74. Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 11; Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 11. (1998) 193 CLR 346. (1999) 198 CLR 511. At 594–6.

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perfectly valid. The ultimate outcome is that the federal jurisdictions of the Federal Court and Family Court of Australia are given to the state and territory Supreme Courts, but the jurisdictions of the state, Australian Capital Territory and Northern Territory Supreme Courts are not invested in the federal courts. 2.30  The courts participating in the cross-vesting scheme are the Federal Court, the Family Court of Australia, the Family Court of Western Australia and the Supreme Courts of all states and territories (including the external territories). As it stands after Wakim, the scheme provides for the following grants of jurisdiction: • Federal Court to Supreme Court: The original and appellate jurisdiction of the Federal Court of Australia is invested in the Supreme Court of the states and territories.89 The Federal Court’s jurisdiction in any matter arising under federal industrial relations laws and any matter arising under federal competition laws which relate to boycotts or the misuse of market power in a trans-Tasman market is excluded. This grant of jurisdiction resolves conflicts within cases which raise issues under both the Competition and Consumer Act 2010 (Cth) and, to the extent that it is within the accrued jurisdiction of federal courts, the general law of contract and tort, which, on occasions, had led the Federal Court to enjoin plaintiffs from proceeding in state Supreme Courts.90 • Family Court of Australia to Supreme Courts: The original and appellate jurisdiction of the Family Court of Australia is invested in the Supreme Court of the states and territories.91 This investiture is less significant, following the referral by the states of their jurisdiction concerning property disputes between de facto partners.92 • State and internal territory Supreme Courts to Supreme Court: The original and appellate jurisdiction of the Supreme Court of the states, the Australian Capital Territory and the Northern Territory in any ‘state matter’ is invested in the Supreme Court of the other states and territories.93 • State and internal territory Supreme Courts to Family Court of Western Australia: The original and appellate jurisdiction of the Supreme Court of the states, the Australian Capital Territory and the Northern Territory in any ‘state matter’ is invested in the Family Court of Western Australia.94 • External territory Supreme Courts to Federal Court: The original and appellate jurisdiction of the Supreme Court of the external territories is invested in the Federal Court of Australia.95 There is no provision in the federal cross-vesting legislation equivalent to those of the states and internal territories limiting the grant 89. 90.

91. 92. 93. 94. 95.

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4(1). For example, Denpro Pty Ltd v Centrepoint Freeholds Pty Ltd (1983) 48 ALR 39; Turelin Nominees v Dainford Ltd (1983) 47 ALR 326; Novasonic Corp Ltd v Hagenmeyer (A/Asia) BV (1983) 8 ACLR 303; cf Trade Practices Commission v Manfal Pty Ltd (1990) 21 FCR 230. Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4(1). For example, Commonwealth Powers (De Facto Relationships) Act 2003 (NSW), and legislation of the same name enacted by the other states between 2003 (Qld) and 2009 (SA). Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 4(3). Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 4(4). Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4(2).

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• • • •

2.31

to jurisdiction in ‘state (or territory) matters’, and therefore this grants to the Federal Court the federal jurisdiction of the external territory Supreme Courts. Also, the principle of Wakim does not affect this grant of jurisdiction as it is one given to federal courts by federal (and not territory) legislation. External territory Supreme Courts to Family Court of Australia: The original and appellate jurisdiction of the Supreme Court of the external territories is invested in the Family Court of Australia.96 External territory Supreme Courts to Supreme Courts: The original and appellate jurisdiction of the Supreme Court of the external territories is invested in the Supreme Court of the states and other territories.97 External territory Supreme Courts to Family Court of Western Australia: The original and appellate jurisdiction of the Supreme Court of the external territories is invested in the Family Court of Western Australia.98 Family Court of Western Australia to state and territory Supreme Courts: The original and appellate jurisdiction of the Family Court of Western Australia is invested in the state and territory Supreme Courts.99

The cross-vesting legislation provides expressly that each of the participating courts is able to exercise jurisdiction conferred on it by the cross-vesting scheme.100 From the above, it should be apparent that the scheme does not effect a complete cross-vesting of jurisdiction between all superior courts in Australia. The inability of the Federal Court and the Family Court of Australia to receive state and internal territory jurisdictions — as held in Wakim — is now the largest gap in the scheme. Second, there is no cross-vesting of jurisdiction between the Federal Court and the Family Court of Australia. Further, the scheme does not provide for the investment of any additional federal jurisdiction in the Federal Court, other than the federal jurisdiction of the external territory Supreme Courts.101 The Federal Court can only exercise federal jurisdiction in matters the Commonwealth Parliament has invested in the court directly.102 But as the grants referred to above show, it still resolves the most important problems of jurisdiction that the emergence of the federal courts had created. On the whole, the scheme seemed to operate effectively and efficiently. Wakim has not led to a reconsideration of the parts of the scheme that remain intact.103 2.31  The issue of importance in this section is to determine the meaning of the term ‘cross-vested’ jurisdiction. It is suggested that such jurisdiction refers only to ‘subject matter’ jurisdiction: that is, the power a court has to deal with a case of a particular kind. Personal jurisdiction, by contrast, is the power a court has over a person due to that person being Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4(2). Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4(2). Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ss 3(2), 4(2). Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) s 4(1)–(3). Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 9(2); Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 9. 101. Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4(2). 102. Kodak (Australasia) Pty Ltd v Commonwealth (1989) 98 ALR 424; Courtice v Australian Electoral Commission (1990) 95 ALR 297. 103. R Mortensen, ‘Autochthonous Essential: State Courts and a Cooperative National Scheme of Civil Jurisdiction’ (2004) 22 University of Tasmania Law Review 109 at 136–40. 96. 97. 98. 99. 100.

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served with the court’s initiating process in accordance with the court’s rules. The view that only subject matter jurisdiction is cross-vested was taken by Gummow J of the Federal Court in David Syme and Co Ltd (Rec and Mgr Appt’d) v Grey.104 2.32  David Syme concerned a claim for damages in the Supreme Court of the Australian Capital Territory. The plaintiff alleged defamation by the defendant newspaper company. The defendant had no presence in the territory, and was therefore served at its office in Melbourne. It challenged the court’s jurisdiction, and this challenge was upheld by a majority (Neaves and Gummow JJ; Higgins J dissenting) on appeal to the Full Court of the Federal Court. The plaintiff in David Syme argued that, under the cross-vesting scheme, the defendant could be served in Victoria without leave. Rejecting this argument, Gummow J listed four reasons why he thought personal jurisdiction had not been cross-vested: the scheme still adds significantly to the jurisdiction of the participating courts even if it is only construed as cross-vesting subject matter jurisdiction; there are ‘matters’ mentioned in the cross-vesting legislation that refer to the parties and the subject matter, suggesting a cross-vesting of subject matter jurisdiction; the parliaments cannot be presumed to have intended to add, after the (then) Service and Execution of Process Act 1901 (Cth) and the (then) rules of court, a third source of interstate jurisdiction without expressly stating so; and the cross-vesting of personal jurisdiction is anomalous. In relation to this last point, Gummow J thought that anomalies arose because the cross-vesting scheme would extend the personal jurisdiction of the Supreme Courts to places elsewhere in Australia, but not to places overseas. It also added nothing to the personal jurisdiction of the Federal and Family Courts, which already had jurisdiction over persons throughout Australia.105 2.33 Since David Syme was decided, the Service and Execution of Process Act  1992 (Cth) has been enacted, which extended the personal jurisdiction of the Supreme Courts throughout Australia and so rendered it strictly unnecessary to consider whether a state or territory Supreme Court may exercise the personal jurisdiction of another state or territory Supreme Court in an intranational dispute. Indeed, it is possible that the Service and Execution of Process Act partially renders provisions for service under the cross-vesting scheme invalid. The Service and Execution of Process Act relevantly states:106 … this Act applies to the exclusion of a law of a State [including a federal territory] with respect to: (a) the service … in another State of process of the relevant State that is process to which this Act applies.

This means that, where a person can be served under the Service and Execution of Process Act, that person cannot be served under a law of a state or territory,107 including the state or territory cross-vesting legislation. Given also the exhaustive operation of the Service and Execution of Process Act, it would appear that the rules providing for service under the 104. (1992) 115 ALR 247; see also BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [44]–[45] and [52] (Gummow and Hayne JJ); K Mason and J Crawford, ‘The Cross-Vesting Scheme’ (1988) 62 Australian Law Journal 328; cf Seymour-Smith v Electricity Trust of South Australia (1989) 17 NSWLR 648. 105. (1992) 115 ALR 247 at 274–5. 106. Service and Execution of Process Act 1992 (Cth) s 8(4). 107. Swanson v Harley (1995) 103 NTR 25 at 29; Citibank Ltd v Nobes (1993) 15 Qld Lawyer Reps 9.

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cross-vesting scheme are inoperative to the extent they provide for service under state or territory cross-vesting legislation.108 2.34  Of course, the above conclusion regarding intranational cases still leaves open the possibility that personal jurisdiction may be cross-vested in international disputes, where service outside Australia on a foreign defendant is involved. This is the view that was taken by the Harmonisation of Rules Committee of the Council of Chief Justices of Australia and New Zealand;109 consequently, the harmonised rules of court which have been adopted in four states110 refer to the existence of connections to Australia, rather than the relevant state. It is suggested that not only is this based on an incorrect interpretation of the crossvesting legislation, but it is inefficient for a Supreme Court to apply indirectly the rules for service abroad of another state or territory Supreme Court, and to rely on the cross-vesting legislation provisions in relation to transferring proceedings to determine which Australian court should hear proceedings.111 The reasoning of Gummow J in David Syme which rejects the conferral of such jurisdiction is again apposite here. 2.35  If cross-vesting is indeed limited to subject matter jurisdiction, in what circumstances can a court be said to be exercising such jurisdiction? The basic premise asserted here, in line with the views of Gummow J in David Syme and the authors Kelly and Crawford,112 is that the ordinary jurisdiction of the state and territory Supreme Courts and cross-vested jurisdiction cannot overlap; cross-vested jurisdiction only comes into operation when the rules of ordinary jurisdiction do not apply. Cross-vested jurisdiction is therefore a form of ‘supplementary’ jurisdiction. Consequently, it is suggested that it applies in the following situations. The first case is where a matter is transferred from one superior court to another under s  5 of the cross-vesting legislation. The second case is where a state or territory Supreme Court lacks power to adjudicate a particular matter. An example would be where the Supreme Court of Victoria has no power to determine questions of title or trespass to land in Queensland under the Moçambique rule.113 The effect of cross-vesting is to confer on the Supreme Court of Victoria all the jurisdiction of the Supreme Court of Queensland, which would include the power to determine the question of title or trespass to land in 108. See, for example, ACT r 3307; NT r 89.07(1); Qld r 55; Tas r 781(6). 109. According to Justice Perram, the convenor of the Harmonisation of Rules Committee, the sub-committee which drafted the rules agreed ‘that the reference within the paragraphs to a place should be to Australia and not to an individual State or Territory of whose Rules the rules form part. This is because State and Territory courts now have Australia wide jurisdiction pursuant to section 4 of the uniform Jurisdiction of Courts (Cross vesting) Acts.’: Letter of 15 October 2015 cited in A Dickinson, ‘In Absentia: Evolution and Reform of Australian Rules of Adjudicatory Jurisdiction’ in M Douglas et al, Commercial Issues in Private International Law: A Common Law Perspective (Hart, 2019 forthcoming), text to n 188. 110. The Australian Capital Territory has also adopted the harmonised rules. The relevant references in the Australian Capital Territory rules are to ‘the ACT’ and to ‘the territory’: ACT r 6502. At the time of writing this chapter in April 2018, four states had adopted the harmonised rules of court (New South Wales, South Australia, Tasmania and Victoria); in the relevant rules of all four states, the relevant reference was to Australia: NSW Sch 6; SA r 40A; Tas r 147A; Vic r 7.02. 111. Cf Justice Perram, cited in Dickinson, above n 109. 112. D Kelly and J Crawford, ‘Choice of Law under the Cross-Vesting Legislation’ (1988) 62 Australian Law Journal 589 at 593: ‘[T]he purpose of the cross-vesting scheme is to overcome only existing limits in the exercise of jurisdiction.’ 113. British South Africa Co v Companhia de Moçambique [1893] AC 602.

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Queensland. Indeed, one commentator115 has asserted that the effect of the cross-vesting scheme is to ‘pick up’ statutes such as the Jurisdiction of Courts (Foreign Land) Act 1989 (NSW) which have abolished the Moçambique rule for all cases, both intranational and foreign, and to make such legislation available to courts in other states and territories. Suppose, for example, the Supreme Court of Victoria had to determine a question of title or trespass to land in Indonesia. Such a claim would be barred by the Moçambique rule under the common law rules applicable in Victoria but, as a result of the cross-vesting scheme, the above New South Wales legislation could be imported into Victoria to ‘cure’ the deficit in subject matter jurisdiction. The Victorian court would then enjoy the subject matter jurisdiction of the Supreme Court of New South Wales and could adjudicate the issue. The correctness of this view was left open by the Victorian Court of Appeal in Schmidt v Won.116 A similar instance would be where legislation limits jurisdiction in relation to a matter to the courts of one state or territory only. For example, the NSW Trustee and Guardian Act  2009 (NSW) confers power only upon the Supreme Court of New South Wales  to appoint the New South Wales Trustee to manage a mentally incapable person’s estate. In such a case, the cross-vesting legislation gives power to the superior courts of another state or territory to exercise such jurisdiction.117 114

2.36  The more controversial situation where cross-vested jurisdiction arguably exists is where a plaintiff or defendant seeks to rely on a statute of another state or territory in circumstances where such legislation would not be ‘picked up’ by the choice of law rules of the forum. Suppose, for example, that a Victorian plaintiff sued a New South Wales defendant for breach of contract in the Supreme Court of Victoria in relation to a contract governed by Victorian law, and the defendant raised a counter-claim under the Contracts Review Act 1980 (NSW). Under common law choice of law rules, the New South Wales Act could not be admitted in Victoria if the matter fell within the scope of the choice of law clause and so would be outside the subject matter jurisdiction of the Victorian court. The effect of cross-vesting, however, is to give the Victorian court all of the subject matter jurisdiction of the Supreme Court of New South Wales  and, since the Act could be applied if the proceedings were heard in New South Wales, so too can the statute apply in Victoria. Such an interpretation of cross-vested jurisdiction is reinforced by s 11(1)(b) of the cross-vesting legislation, which provides that where a court is exercising cross-vested jurisdiction, and a matter arises under the written law of another state or territory, the court must apply the written and unwritten law of such state or territory. In the example above, s 11(1)(b) would give the Victorian court the power to apply the New South Wales Act ‘directly’, where such power did not exist before cross-vesting. Hence, the cross-vesting scheme creates a new 114. Starr-Diamond v  Diamond (No 3) [2013] NSWSC 351 at [6]. However, if the parties were residents of different states, the court would be exercising federal jurisdiction, in which case the court would not be exercising jurisdiction in a ‘State matter’ (per s 3 of the cross-vesting legislation) and the subject-matter jurisdiction of the original court could not be cross-vested under s  4 of the cross-vesting legislation: Uhlmann v Harris (No 2) [2018] QSC 28 at [10]–[11]. 115. J Davis, ‘The OK Tedi River and the Local Actions Rule: A Solution’ (1998) 72 Australian Law Journal 786. 116. [1998] 3 VR 435 at 447–8 (Ormiston JA, with whom Charles and Batt JJA agreed). 117. See, for example, Re DEF and the Protected Estates Act  1983 (2005) 192 FLR 92; [2005] NSWSC 534 at [27]–[29] (which related to the Protected Estates Act 1983 (NSW) s 13, which was repealed and replaced by the Trustee and Guardian Act 2009 (NSW) s 41).

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choice of law analysis by enabling a party to plead a statute of another state or territory even where it would not have been selected under common law choice of law rules. In this way, therefore, the subject matter jurisdiction of the state and territory courts is enlarged. It must be acknowledged, however, that this aspect of cross-vested jurisdiction has been generally ignored by courts and litigants. For this reason, and also for the anomalous consequences caused, it is suggested in Chapter 12118 that s 11(1)(b) should be repealed, to eliminate this aspect of cross-vested jurisdiction.119

Personal jurisdiction in international cases Jurisdiction over New Zealand defendants 2.37  In international cases where New Zealand courts or parties are involved, a separate regime applies.120 It resembles the Service and Execution of Process Act, on which it was based. The scheme has three aspects. First, it facilitates the service of process of Australian courts in New Zealand; this aspect is discussed in this chapter.121 Second, it provides exclusively for the circumstances in which a stay of proceedings may be granted by an Australian court, where Australian process has been served in New Zealand  and a New Zealand  court is the alternative forum. This aspect is addressed in Chapter  4. Third, it facilitates the registration of New Zealand judgments in Australia. This aspect of the scheme is discussed in Chapter 5. 2.38  The Trans-Tasman Proceedings Act 2010 permits the service of the initiating process of any Australian court or tribunal122 in New Zealand.123 It imposes no requirement of nexus, nor any requirement of leave to serve the defendant in New Zealand, nor of leave to proceed if the New Zealand defendant does not enter an appearance. There is no requirement of nexus between the jurisdiction in which proceedings are commenced and the parties or the subject matter of the dispute. This very expansive jurisdiction is, like the intra-Australian scheme, intended to be controlled by provisions of the legislation which permit proceedings to be stayed. Those provisions are discussed in Chapter 4.

Personal jurisdiction in international cases not involving New Zealand 2.39  There are many multi-state cases that have a close connection with the forum state but in which, at common law, the courts of the forum have no jurisdiction because the defendant is not present in the forum at the time of service. It is irrelevant at common law 118. See 12.36. 119. See, generally, R Garnett, ‘The Dominance of Uniformity of Outcome in Australian Choice of Law: Is It Time to Relax the Grip?’ (2013) 37 Australian Bar Review 192 at 211–12. 120. The scheme is contained in the Trans-Tasman Proceedings Act  2010 (Cth), which gives effect to the Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement done at Christchurch on 24 July 2008: [2013] ATS 32. 121. See 2.38. 122. The term ‘court’ is defined to mean all Australian federal, state and territory courts: Trans-Tasman Proceedings Act 2010 (Cth) s 4. 123. Trans-Tasman Proceedings Act 2010 (Cth) s 9(1).

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whether there is a connection between the forum and the subject matter of the dispute, such as that the claim relates to property in the forum state, or a tort that occurred in the state or caused damage to a business centred in the state, or even that the defendant is a local resident who fled before initiating process could be issued.124 Claims like these first became actionable in English courts by legislation, including the Common Law Procedure Act 1852 (UK). This gave the common law courts an ‘assumed’, ‘extraterritorial’ or ‘longarm’ jurisdiction in a range of actions connected with England. The legislation was copied in all rules of court in all the Australian colonies, and formed the basis for the provisions of the Service and Execution of Process Act 1901 (Cth). As seen, for the state and territory Supreme Courts, the rules of court also made provision for service of process outside the state or territory in actions having some connection with the state or territory. However, the Service and Execution of Process Act 1992 (Cth), which replaced the Act of 1901, is a generous grant of jurisdiction to these courts over persons anywhere in another state or territory, even where there is no connection with the forum state or territory.125 Except in New South Wales the rules of court provide only for service of initiating process outside Australia.126 In New South Wales, the rules provide for service of initiating process in another state or territory as well as outside Australia, referring to service under the Service and Execution of Process Act.127 The High Court Rules allow service ex iuris where this is allowed under the Federal Court Rules.128

Leave to serve 2.40  In the Federal Court, the Northern Territory and Western Australia, the rules provide that the leave of the court must be obtained before a person can be served outside Australia.129 In order to secure this leave, a plaintiff must show that the case is an appropriate one for service outside the country, and that the case is within one of the grounds of jurisdiction specified in the relevant rules of court.130 In the Federal Court and the Northern Territory, the plaintiff must also show that they have a ‘prima facie case for the relief claimed’, and in Western Australia it must be shown that the plaintiff has a ‘good cause of action’.131 In either case, because the application for leave to serve out is made at an early stage, this does not impose a significant obstacle. A prima facie case will be established ‘if, on the material

124. For example, Wilding v Bean [1891] 1 QB 100. 125. Swanson v Harley (1995) 103 NTR 25 at 29. 126. ACT r 6502; NSW r 11.4(1); NT r 7.01; Qld r 124(1); SA r 40(1); Tas r 147A; Vic r 7.02; WA O 10 r 1(1). These provisions do not apply to service in New Zealand: ACT Div 6.8.9 Note 3; NSW r 11.3; Qld Pt 7 Div 1 Note; SA r 40; Tas r 147(3); Vic r 7.01; WA O 10 r 1A(3A). 127. NSW r 10.3(3). 128. HCt r 9.07.1. 129. FCt r 10.43(1)(a); NT r 7.02(1)(a); WA O 10 r 1(1). In the Federal Court and the Northern Territory, if the court has not given leave prior to service being made, the plaintiff can apply for service to be confirmed, but must have a satisfactory explanation for failing to seek prior leave to serve out of the jurisdiction: FCt r 10.43(1)(b), (6), (7); NT r 7.02(1)(b), (5)(c). The rules in those two jurisdictions also provide that service is effective if the defendant waives any objection to service by filing an appearance: FCt r 10.43(1)(c); NT r 7.02(1)(c). 130. FCt r 10.43(4)(a), (b); NT r 7.02(2)(a), (b); WA O 11 r 4. 131. FCt r 10.43(4)(c); NT r 7.02(2)(c); WA O 10 r 4(1).

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before the court, inferences are open which, if translated into findings of fact, would support the relief claimed’.132 2.41  The application for leave to serve is made by the plaintiff ex parte and full and fair disclosure must be made.133 The plaintiff should also show that the defendant is unlikely to obtain a stay of the proceedings, on the basis that the parties agreed to litigate exclusively in a foreign court, or on the ground of forum non conveniens. Therefore, the plaintiff must show that there are strong grounds for non-enforcement of an exclusive foreign jurisdiction clause, or that the court is not a clearly inappropriate forum to determine the dispute.134 Similarly, the plaintiff must pre-empt other grounds on which the defendant might apply for a stay of proceedings: lis alibi pendens, or a forum clause providing for the dispute to be determined in another court.135 Leave will not be granted where it is evident that the plaintiff will not succeed at trial, either because the plaintiff is unlikely to make out the claim136 or because the defendant has a good defence.137 However, where the plaintiff claims to be able to serve outside Australia on a number of grounds of jurisdiction it is only necessary to show a prima facie case for the particular relief sought. It is not necessary that the plaintiff show a prima facie case for every cause of action pleaded.138 Since the granting of leave to serve allows the court to exercise an exorbitant jurisdiction, any doubt about the interpretation of the rules or the appropriateness of service in the particular case should be resolved in favour of the defendant.139 2.42  In the jurisdictions which have adopted the harmonised rules, in most cases service may be made outside the jurisdiction without the leave of court. If service outside Australia without leave is not authorised, the harmonised rules enable service to be made outside Australia with the court’s leave.140 The court may grant an application for leave to serve originating process outside Australia if three conditions are satisfied: the claim must have ‘a real and substantial connection’ with Australia or the forum; Australia or the forum must be ‘an appropriate forum’ for the trial; and ‘in all the circumstances the Court should assume jurisdiction’.141 132. Western Australia v Vetter Trittler Pty Ltd (in liq) (1991) 30 FCR 102 at 110; Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317; [2003] FCAFC 153 at [97]; Ho v Akai Pty Ltd (in liq) (2006) 247 FCR 205 at [10]. 133. The Hagen [1908] P 189 at 201; Eyre v  Nationwide News Pty Ltd [1967] NZLR 851; cf Hartwell Trent (Australia) Pty Ltd v Tefal Société Anonyme [1968] VR 3 at 8. 134. Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. 135. See 4.11–4.25 and 4.53–4.54. 136. Diamond v Bank of London and Montreal Ltd [1979] QB 333; Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1981] 2 Lloyd’s Rep 446 at 456–7; Chicago Bridge and Iron Constructors Pty Ltd v Sarvanidis (1986) 44 SASR 418 at 425; Morin v Bonhams & Brooks Ltd [2003] 2 All ER (Comm) 36 at 50–1. 137. The Brabo [1949] AC 326. 138. Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365 at 373. 139. The Hagen [1908] P 189 at 201; Stanley Kerr Holdings v Gibor Textile Enterprises Pty Ltd [1978] 2 NSWLR 372; Tricon Industries Pty Ltd v Abel Lemon and Co Pty Ltd [1988] 2 Qd R 464 at 471–2; Australian Insurance Brokers Ltd v Hudig Langeveldt Pty Ltd (No 2) (1991) 7 WAR 343; Saltram Wine Estates Pty Ltd v Independent Stave Co (1992) 57 SASR 156. 140. ACT r 6503; NSW r 11.5; SA r 40B; Tas r 147B; Vic r 7.03. 141. In the Australian Capital Territory, the requisite connection is to the Australian Capital Territory: r 6503(5). In the other jurisdictions, the required connection is to ‘Australia’: NSW r 11.5(5); SA r 40B(5); Tas r 147B(5); Vic r 7.03(5).

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Leave to proceed 2.43  In the High Court, the Australian Capital Territory, New South Wales, Queensland, South Australia, Tasmania and Victoria, service of initiating process outside Australia does not require the leave of the court. In all jurisdictions except Queensland, if the person served has not entered an appearance to the initiating process the plaintiff must apply for leave to proceed with the litigation.142 The court therefore has a discretion to refuse leave to proceed, even in cases that come within one of the specified grounds of jurisdiction permitting service out of the jurisdiction. The onus is placed on the plaintiff to show that, having regard to all the relevant circumstances, the case is an appropriate one for service outside the country. The High Court addressed the details of the procedure to follow in these cases in Agar v  Hyde.143 The plaintiffs claimed damages for injuries they suffered in scrums, when playing rugby in New South Wales. They had process served on the International Rugby Football Board (IRFB) in London, as well as various overseas Rugby Football Unions. The central allegation rested on the claim that, as the IRFB and other defendants were responsible for formulating the rules of rugby, and in particular the rules relating to the formation of scrums, they owed a duty of care to the plaintiffs and had been negligent in failing to monitor the safety of their rules relating to scrums. Leave to proceed against the IRFB and other defendants was sought in the Supreme Court of New South Wales but, ultimately, on appeal to the High Court, this leave was refused. The court held that it was not arguable that the defendants could have owed the plaintiffs a duty of care, and so the actions were ‘doomed to fail’.144 Importantly, the High Court indicated what procedure had to be followed when leave to proceed was being sought. Gaudron, McHugh, Gummow and Hayne JJ identified three major issues that the plaintiff had to address if jurisdiction was contested by the defendant. Their Honours noted that, for some of these issues, considerations of international comity and restraint in the exercise of jurisdiction had to be taken into account.145 The nature of the claim being alleged in the proceedings had to be based properly on one (or more) of the grounds of jurisdiction set out in the rules.146 The court here had to ask: ‘[I]s the claim a claim in which the plaintiff alleges that he has a cause of action which, according to those allegations, is’ within one of the grounds of jurisdiction set out in the rules?147 At this point, it is not necessary to argue the strength of the plaintiff ’s claim. All that is considered is the nature of the allegations, not ‘whether those allegations will be made good at trial’.148 The statement of claim itself will usually, though not always, be enough to show whether the plaintiff has addressed this issue. Agar v Hyde concerned the requirements for leave to proceed under the New South Wales rules. In Schib Packaging Srl v Emrich Industries Pty Ltd, the Victorian Court of Appeal did not 142. HCt r 9.07.03; ACT r 6507; NSW r 11.8AA; SA r 40F; Tas r 147F; Vic r 7.07. In Queensland, there are no explicit requirements either of leave to serve out or of leave to proceed in the absence of an appearance. For a criticism of the bifurcated approach to jurisdiction, see P Myburgh and E Schoeman, ‘Jurisdiction in TransNational Cases’ [2004] New Zealand Law Review 403. 143. (2000) 201 CLR 552; [2000] HCA 41. 144. At 576, 584. 145. At 571. 146. At 573. 147. At 573 (emphasis in original). 148. At 574.

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refer to Agar v Hyde, and held that the plaintiff is required to establish ‘a strongly arguable case’,149 but a differently constituted Victorian Court of Appeal disapproved this aspect of Schib Packaging as being inconsistent with Agar v Hyde in Madden International Ltd v Lew Footwear Holdings Pty Ltd.150 2.44 In Agar v Hyde, the court held that it would be wrong to attempt exhaustively to enumerate the circumstances in which the court could set aside service of initiating process, or stay proceedings, but stated that it might do so if any of the following obtained: • the nature of the allegations made did not bring the claim within one (or more) of the grounds of jurisdiction set out in the rules;151 • the court was a clearly inappropriate forum for the determination of the proceedings, under the relevant principles of forum non conveniens.152 These are discussed in Chapter 4;153 or • the claim had insufficient prospects of success to warrant an overseas defendant being put to the time, expense and trouble of the litigation. Gaudron, McHugh, Gummow and Hayne JJ held that there had to be ‘a high degree of certainty about the ultimate outcome of the proceeding’, so it was not sufficient that the plaintiff ’s failure at trial merely be ‘likely’ or ‘probable’. The test was the same as that applied in local proceedings where a defendant can secure summary judgment that the matter not go to trial.154 In Agar v Hyde, it was this issue that led the court to refuse leave to proceed. The absence of a duty of care necessarily meant that the plaintiff had insufficient — indeed, no — prospects of success. 2.45  The harmonised rules of court have incorporated this aspect of Agar v Hyde, in the provision relating to whether the court should dismiss or stay the proceedings, or set aside the originating process or its service, on the application of the person on whom process was served.155 These provisions state that the court may make an order setting aside originating process or its service, or dismiss or stay the proceedings: if satisfied — (a) that service out of Australia of the originating process is not authorised by these Rules; or (b) that the Court is an inappropriate forum for the trial of the proceeding; or (c) that the claim has insufficient prospects of success to warrant putting the person served out of Australia to the time, expense and trouble of defending the claim.

149. (2005) 12 VR 268; [2005] VSCA 236. 150. (2015) 50 VR 22; [2015] VSCA 90. See likewise Puccini Festival Australia Pty Ltd v Nippon Express (Australia) Pty Ltd (2007) 17 VR 36; [2007] VSC 288 at [14]; Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320 at [127]–[135]; cf Castel Electronics Pty Ltd v TCL Airconditioner (Zhongshan) Co Ltd [2013] VSC 92 at [14]. 151. (2000) 201 CLR 552 at 575; [2000] HCA 41. 152. For the same reason, the court should also consider the effect of any jurisdiction clause which applies to the issues in dispute. 153. See 4.39–4.51. 154. Agar v Hyde (2000) 201 CLR 552 at 576; [2000] HCA 41. 155. ACT r 6504(2); NSW r 11.6(2); SA r 40C(2); Tas r 147C(2); Vic r 7.04(2).

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Although the question of onus of proof was not raised in Agar v  Hyde, and is not mentioned in the harmonised rules, while in practice the defendant will probably raise these issues in an application to contest jurisdiction,156 the plaintiff bears the onus of establishing that they are not made out. This is, for example, the principle applicable in these applications under the doctrine of forum non conveniens, in which the plaintiff must show that the court is not a clearly inappropriate forum for the determination of the proceedings.157 Ultimately, the party on whom the onus rests will depend on the construction of the relevant rules.158 2.46  As noted above, the plaintiff must show that the case is within one of the grounds of jurisdiction specified in the relevant rules of court. The most commonly invoked and important grounds of jurisdiction are discussed below. The principle that requires the rules of court to be read narrowly means that in the Federal Court, the Northern Territory, and Western Australia, the action must be completely within one of the grounds specified in the rules if the court is properly to assume jurisdiction. It is insufficient that the action comes partly within one ground and partly within another.159 In the Australian Capital Territory, New South Wales, Queensland, South Australia, Tasmania and Victoria, the rules explicitly allow service outside Australia in such a case.160

Harmonised rules of court 2.47  The rules of court of the Australian superior courts have until recently been separately developed by Rules Committees in each jurisdiction; there has been a degree of similarity between the rules in the nine different jurisdictions. Between 2016 and early 2018, the Australian Capital Territory and New South Wales, South Australia, Tasmania and Victoria adopted nearly identical, ‘harmonised’ rules addressing service outside Australia. These rules were developed under the auspices of the Council of Chief Justices, and were based on the New Zealand High Court Rules.161 The rules in these five jurisdictions now allow service ex iuris in almost exactly the same circumstances. The rules in the other four Australian jurisdictions (the Federal Court, the Northern Territory, Queensland and Western Australia) are in many respects similar to the harmonised rules, but there are some differences. One of the most significant differences is that, as explained above,162 in the four states that have adopted the harmonised rules, the connection used in the rules is to Australia, rather than to the relevant state. The Australian Capital Territory has adopted the harmonised rules, but in those rules, the connection used is to the Australian

ACT r 6503; NSW r 11.7; Qld r 126; NT r 7.05; Tas r 147B; Vic r 7.04. See 4.39. Cf Pendal Nominees Pty Ltd v M and A Investments Pty Ltd (1989) 18 NSWLR 383. Deputy Commissioner of Taxation v Ahern [1986] 2 Qd R 342. ACT r 6501(s); NSW Sch 6(s); Qld r 124(1)(x); SA r 40A(s); Tas r 147A(s); Vic r 7.02(s); cf Tycoon Holdings Ltd v Trencor Jetco Inc (1992) 34 FCR 31 at 34–5. 161. For a detailed explanation of the provenance of the rules, see Dickinson, above n 109. See also M Douglas and V Bath, ‘A New Approach to Service outside the Jurisdiction and outside Australia under the Uniform Civil Procedure Rules’ (2017) 44 Australian Bar Rev 160. 162. See 2.34. 156. 157. 158. 159. 160.

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Capital Territory. Some of the grounds of jurisdiction in the harmonised rules are new to Australia,163 and their interpretation may take some time to settle.

Grounds of jurisdiction — personal connections 2.48  For all of the superior courts, the rules provide that a person who is domiciled or ordinarily resident in the territory of the forum court can be served outside Australia.164 The harmonised rules have introduced two important changes to this. In addition to the connections of domicile and ordinary residence, they also include ‘habitual residence’; a personal connecting factor developed by the Hague Conference of Private International Law and used in some Hague Conventions. In the four states which have adopted the harmonised rules, the relevant connection is not to the territory of the forum court, but to Australia;165 in the Australian Capital Territory, the stated connection is to the Australian Capital Territory.166 The concepts of domicile, ordinary residence and habitual residence import more permanent connections with a place than mere presence, and are discussed in detail in Chapter 10. To the extent that the rules require a connection to the relevant law area, they are therefore a sensible extension of the common law requirements for jurisdiction, and actually restore the more ancient principle that the proper place in which litigation against a person was to be determined was a court in the place where the defendant was domiciled (forum domicilii). If the defendant can be served on this ground, there is no other requirement for the action to have any connection with the forum in order to establish jurisdiction.167

Grounds of jurisdiction — submission to the jurisdiction 2.49  The rules of court allow service on a foreign defendant who has submitted to the jurisdiction of the forum court. The Federal Court, Australian Capital Territory, New South Wales, Queensland, South Australian, Tasmanian and Victorian rules allow service outside Australia when the defendant has submitted, or agreed to submit, to the jurisdiction of the court.168 In the Northern Territory and Western Australia, the agreement to submit to jurisdiction must be a term of a contract, and the proceedings must be ‘founded on a

163. There is a limited amount of jurisprudence from New Zealand courts interpreting the High Court Rules (NZ) upon which the harmonised rules were based. Some of the novel bases of jurisdiction in the harmonised rules are similar to some grounds of jurisdiction under the UK Practice Direction which contains the rules authorising service out of the jurisdiction: Civil Procedure Rules 1998 (SI 1998/3132), Practice Direction 6B. 164. FCt r 10.42, item 18(a); ACT r 6502(g); NSW Sch 6(g); NT r 7.01(1)(c); Qld r 124(1)(d); SA r 40A(g); Tas r 147A(g); Vic r 7.02(g); WA O 10 r 1(1)(c). Most of the rules refer to ‘persons’ in this ground of jurisdiction, but in the Federal Court, particular provision is made for a similar ground of general jurisdiction in the case of corporations, relying on the connecting factors of incorporation, carrying on business, or registration within the forum: FCt r 10.42, item 18(b). 165. NSW Sch 6(g); SA r 40A(g); Tas r 147A(g); Vic r 7.02(g). 166. ACT r 6502(g). 167. Lenders v Anderson (1883) 12 QBD 50. 168. FCt r 10.42, item 19; ACT r 6502(k); NSW Sch 6(k); Qld r 124(1)(r); SA r 40A(k); Tas r 147A(k); Vic r 7.02(k).

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contract’, or ‘in respect of the contract’. 170 The Queensland rules permit service out on both grounds — where the defendant has submitted generally as well as where the defendant has contractually submitted to the jurisdiction.171 169

Grounds of jurisdiction — contracts 2.50  There are eight specific grounds on which an action affecting a contract might allow service of a person outside Australia: the contract contains a term by which the defendant submits to the jurisdiction;172 the contract was made in the forum, or in Australia; the contract was made by or through an agent connected to the forum, or Australia; the contract was to be performed in the forum or in Australia; there was a breach of the contract within the forum or in Australia; the contract is governed by the law of the forum or Australia; one of the parties to the contract has a connection to the forum; and the proceedings concern the construction, rectification, setting aside or enforcement of a contract affecting property within the forum.173 The term ‘contract’ in these rules encompasses all rights and obligations that were created by express agreement. The rules are interpreted broadly and include actions brought by a third party in respect of a contract made by others,174 and actions relating to other obligations to pay a fixed sum of money that are imposed by law. Therefore, these rules may allow service outside Australia in respect of an action for money had and received;175 actions in quasi-contract176 and quantum meruit;177 an action by a governmental agency for the recovery of rates, charges or taxes;178 and an action for the recovery of a debt.179 Consequently, an action for the enforcement of a judgment debt resulting from litigation in another country potentially lies within the rules.180 A debt may also be regarded as personal property, and if deemed to be located in the forum the rules allowing service outside Australia in claims relating to property in the forum may also be applicable. A  plaintiff therefore could rely on either of these grounds in proceedings for the enforcement of a foreign judgment. The ‘contract’ — even as understood in this looser sense — must be between the plaintiff and the defendant.181 This includes claims brought by

169. 170. 171. 172. 173. 174. 175. 176. 177.

178. 179. 180.

181.

NT r 7.01(1)(h). WA O 10 r 2. Qld r 124(1)(i). This basis of jurisdiction is discussed at 2.49. This final basis of jurisdiction is discussed at 2.84. Nominal Defendant v Motor Vehicle Insurance Trust (WA) (1983) 50 ALR 511. Bowling v Cox [1926] AC 751; Durra v Bank of New South Wales [1940] VLR 170. Benson v Rational Entertainment Enterprises Ltd [2015] NSWSC 906 at [87]. Earthworks and Quarries Ltd v FT Eastment and Sons Pty Ltd [1966] VR 24; Schweitzer v Kronen Verwaltungs GmbH [1998] VSC 190 at [43]. In the jurisdictions which have adopted the harmonised rules, there is a separate ground of jurisdiction relating to claims for restitution: ACT r 6502(l); NSW Sch 6(l); SA r 40A(l); Tas r 147A(l); Vic r 7.02(l). Belyando Shire Council v Rivers [1908] QWN 17; Chenoweth v Summers (1941) 47 ALR (CN) 364a; Victoria v Hansen [1960] VR 582. Earthworks and Quarries Ltd v FT Eastment and Sons Pty Ltd [1966] VR 24. Adcock v Aarons (1903) 5 WALR 140. In the jurisdictions which have adopted the harmonised rules, there is a separate ground of jurisdiction ‘when it is sought to recognise or enforce any judgment’: ACT r 6502(m); NSW Sch 6(m); SA r 40A(m); Tas r 147A(m); Vic r 7.02(m). Finnish Marine Insurance Co Ltd v Protective National Insurance Co [1990] 1 QB 1078.

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a plaintiff as an assignee of rights under the contract or against a defendant as transferee of liabilities under the contract.182

Contract made in the forum 2.51  In all jurisdictions, a person can be served outside Australia in an action relating to a contract made in the forum,183 or in Australia.184 The law of the forum determines where the contract is made. Occasionally, the parties specify where the contract was made in the agreement itself. Such a provision is not conclusive of the place where the contract is made.185 That conclusion is ascribed by law, and not the agreement of the parties. 2.52  At common law, contracts made by express agreement are made in the place where the last act necessary to create a binding contractual obligation occurred.186 In general, this will be the place where the offeror received communication of acceptance of the terms of the agreement. This rule also holds whenever some form of instantaneous communication is used. This applies when communications between the parties are by telephone,187 fax,188 email,189 or by acceptance of terms provided on a website.190 The Electronic Transactions Acts of the Commonwealth, the states and territories provide that ‘electronic communication is taken to have been received at the place where the addressee has its place of business’.191 International sale of goods contracts governed by the Sale of Goods (Vienna Convention) Acts are deemed to be made wherever the offeror received the acceptance of their offer, regardless of the mode of acceptance.192 2.53  Where communications between the parties are by post or telegram, the contract will be made in the place from where the letter or telegram was sent. The ‘postal rule’ only applies where the circumstances are such that it must have been within the contemplation of the parties that, according to ordinary usage, the post or a telegram might be used to communicate acceptance.193 It is never applicable when the contract falls within the terms of the Sale of Goods (Vienna Convention) Acts.

182. 183. 184. 185. 186. 187. 188. 189.

190. 191. 192. 193.

D R Insurance Co v Central National Insurance Co [1996] 1 Lloyd’s Rep 74 at 78. FCt r 10.42, item 3(a); ACT r 6502(b)(i); NT r 7.01(1)(f)(i); Qld r 124(1)(g)(i); WA O 10 r 1(1)(e)(i). NSW Sch 6(b)(i); SA r 40A(b)(i); Tas r 147A(b)(i); Vic r 7.02(b)(i). Sheldon Pallet Manufacturing Co Pty Ltd v New Zealand Forest Products Ltd [1975] 1 NSWLR 141. Deer Park Engineering Pty Ltd v Townsville Harbour Board (1974) 5 ALR 131. Entores Ltd v Miles Far East Corp [1955] 2 QB 327 at 332; Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539. Reese Bros Plastics Ltd v Hamon-Sobelco Aust Pty Ltd (1988) BCL 91. Olivaylle Pty Ltd v Flottweg GmbH & Co KGAA (No 4) (2009) 255 ALR 632 at 642; [2009] FCA 522; Showtime Touring Group Pty Ltd v Mosely Touring Inc [2010] NSWSC 974; Centrebet Pty Ltd v Baasland (2012) 272 FLR 69; [2012] NTSC 100; Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320. Australian Competition and Consumer Commission v Valve Corp (No 3) (2016) 337 ALR 647; [2016] FCA 196 at [78]. For example, Electronic Transactions Act 1999 (Cth) s 14B(1)(b); Electronic Transactions Act 2000 (NSW) s 13B(1)(b). For example, Sale of Goods (Vienna Convention) Act 1986 (NSW) Sch 1, Art 18(2). Henthorn v Fraser [1892] 2 Ch 27 at 33; Tallerman and Co Pty Ltd v Nathan’s Merchandise (Vic) Pty Ltd (1957) 98 CLR 93; Lewis Construction Co Pty Ltd v M Tichauer SA [1966] VR 341.

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Contract made by an agent in the forum 2.54  In the Federal Court, service outside the jurisdiction is permitted where the contract was made on behalf of the defendant by the defendant’s agent who was resident in the forum, or trading or carrying on business in the forum.194 In the other jurisdictions, the agent need not be that of the defendant: service outside the jurisdiction is permitted where the contract was made by an agent trading or residing in the forum195 or in Australia. 196

Contract to be performed in the forum 2.55  Under the harmonised rules, service out of the jurisdiction is authorised where a contract was to be ‘wholly or in part performed’ in the forum,197 or in Australia.198 This is a new ground of jurisdiction in Australia. If the parties have stipulated the place of performance in the contract, that will likely be decisive; otherwise, determining where a contract is to be performed is a question of interpretation of the contract, which should be done according to the governing law of the contract. The case law interpreting the older ground of jurisdiction where a contract was breached in the forum199 will be relevant in interpreting this new basis of jurisdiction in the harmonised rules.

Breach of contract in the forum 2.56  In all of the rules of court, service outside Australia is permitted if the proceedings concern a breach of a contract in the forum or Australia.200 To justify service on this ground, the plaintiff must show that: (1) the action is ‘in respect of ’ or ‘founded on’ a valid contract; (2) there was a breach of that contract; and (3) the breach took place in the forum. 2.57  The action does not have to be one in contract for service outside Australia to be permissible. For example, in South Adelaide Football Club v Fitzroy Football Club (No 1),201 the South Australian Supreme Court permitted service outside the state on this ground where the action was in tort. The plaintiff alleged that the defendant in Victoria induced a breach of contract in South Australia, so the action could be properly classified as one ‘in respect of ’ a breach in the forum state. 2.58  Identifying the location of a breach of contract requires interpreting the contract in question. The obligation which the plaintiff alleges has been breached must be one which had to be performed in the forum. It is not sufficient that the obligation in question could have been performed in the forum as well as in some other place.202 To determine where the obligation had to be performed, the terms of the contract are obviously of paramount FCt r 10.42, item 3(b). ACT r 6502(b)(ii); NT r 7.01(1)(f)(ii); Qld r 124(1)(g)(iii); WA O 10 r 1(1)(e)(ii). NSW Sch 6(b)(ii); SA r 40A(b)(ii); Tas r 147A(b)(ii); Vic r 7.02(b)(ii). ACT r 6502(b)(iii). NSW Sch 6(b)(iii); SA r 40A(b)(iii); Tas r 147A(b)(iii); Vic r 7.02(b)(iii). See 2.58–2.59. FCt r 10.42, item 2; ACT r 6502(c); NSW Sch 6(c); NT r 7.01(1)(g); Qld r 124(1)(h); SA r 40A(c); Tas r 147A(c); Vic r 7.02(c); WA O 10 r 1(1)(f). 201. (1988) 49 SASR 380. 202. Cuban Atlantic Sugar Sales Corp v  Compania de Vapores San Elefterio (C/V) Lda [1960] 1 QB 187; BP Australia Ltd v Wales [1982] Qd R 386.

194. 195. 196. 197. 198. 199. 200.

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importance, but otherwise the court must resort to rules of law, common business practices and custom. In the case of a failure to pay a debt, the breach occurs where the debt was to be paid. If this was in the forum, then service outside Australia might be allowed. Alternatively, the place where payment is to be made might be expressed or implied in the contract.203 If this cannot be identified in, or inferred from, the contract itself, the general rule is that the debtor must pay the creditor at the creditor’s place of residence. 204 So long, therefore, as the creditor resides in the forum, the breach of the obligation to pay the debt can be assumed to have occurred there. 2.59  If the plaintiff alleges that it is the performance of an act that constitutes a breach of contract then that breach is taken to occur where the act took place. In Safran v Chani,205 the breach was a repudiation of a promise to marry, made by a letter posted in Melbourne. The New South Wales Court of Appeal held the repudiation occurred where the letter was posted, and did not depend on where the marriage was meant to take place.

Contract governed by the law of the forum 2.60  In all Australian jurisdictions, a person can be served outside Australia in an action relating to a contract that is governed by the law of the forum,206 or ‘by Australian law’.207 In the Federal Court, the Australian Capital Territory, the Northern Territory, Queensland and Western Australia, this means that the law of the cause in an international contract case — the proper law of the contract — must be the law of the forum.208 Therefore, to determine whether it has jurisdiction the court must answer a choice of law question. Just how the court determines the proper law of the contract is discussed at length in Chapter 17. However, when deciding whether service outside Australia can be justified on this ground, the court only has to be satisfied that there is a good arguable case that the proper law is the law of the forum,209 and therefore the court’s investigation need not be as thorough at this point as it must be at the later time when the court is determining the proper law of the contract at trial.210 2.61  There will be instances where the law of the forum governs the contract because a forum statute deems itself to apply to the contract, and not because the proper law of the contract is the law of the forum.211 2.62  The harmonised rules have introduced some complexity to this ground of jurisdiction. They state that service out of Australia is permitted for a contract claim which 203. For example, Earthworks and Quarries Ltd v FT Eastment and Sons Pty Ltd [1966] VR 24; Lewis Construction Co Pty Ltd v M Tichauer SA [1966] VR 341; Deer Park Engineering Pty Ltd v Townsville Harbour Board (1974) 5 ALR 131. 204. Benson v Rational Entertainment Enterprises Ltd [2015] NSWSC 906 at [91]. 205. (1970) 72 SR (NSW) 146. 206. FCt r 10.42, item 3(c) (allowing service out of the jurisdiction if the contract is governed by the law of the Commonwealth or of a state or territory); ACT r 6502(b)(iv); NT r 7.01(1)(f)(iii); Qld r 124(1)(g)(iv); WA O 10 r 1(1)(e)(iii). 207. NSW Sch 6(b)(iv); SA r 40A(b)(iv); Tas r 147A(b)(iv); Vic r 7.02(b)(iv). 208. Weckstrom v Hyson [1966] VR 277 at 282. 209. Finnish Marine Insurance Co Ltd v Protective National Insurance Co [1990] 1 QB 1078 at 1084. 210. Fleming v Marshall (2011) 279 ALR 737 at [36]; Murakami v Wiryadi (2010) 268 ALR 377 at [65]. 211. For example, Hayel Saeed Anam & Co v Eastern Sea Freighters Pty Ltd (1973) 7 SASR 200.

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‘was by its terms or by implication to be governed by Australian law or to be enforceable or cognizable in an Australian court’.212 In terms, this seems to apply only to cases where the proper law of the contract has been expressly or impliedly chosen by the parties, and not to cases where the parties have not made a choice of law.213 There is no obvious reason why the harmonised rules should have limited the reference to the governing law in this way. The meaning of the second part of this provision — a contract claim which ‘was by its terms or by implication … to be enforceable or cognizable in an Australian court’ is unclear. It might be intended to refer to a jurisdiction clause in favour of an Australian court which includes within its scope claims for breach of contract.214

A party to the contract had a connection to the forum 2.63  In Queensland, service out is permitted on the basis of either party’s residence or place of business in the forum.215 This is clearly an exorbitant basis of jurisdiction, if it is the plaintiff ’s place of residence or business.

Grounds of jurisdiction — wrongs Cause of action arising in the forum 2.64  The rules in most jurisdictions allow service outside Australia where the claim is founded on a cause of action that arose in the forum,216 or in Australia.217 These rules comprehend actions in tort but are not limited to them, and would, for example, also cover actions for a breach of contract that arose in the forum.218 The extraterritorial jurisdiction recognised in Distillers Co (Biochemicals) Ltd v Thompson219 was based on this ground. The defendant company in Distillers manufactured a sedative called ‘Distaval’ in England. Distaval was marketed in New South Wales, and taken there on prescription by Mrs Thompson, while she was pregnant. The sedative was largely made of thalidomide and, as a result, Mrs Thompson’s daughter was born in 1962 without arms and with defective eyesight. Through her father as next friend, the baby brought an action in the Supreme Court of New South Wales  against the defendant as manufacturer and, importantly, as supplier of Distaval, alleging that the company had been negligent in the manufacture of 212. NSW Sch 6(b)(iv); SA r 40A(b)(iv); Tas r 147A(b)(iv); Vic r 7.02(b)(iv). The same phrase is used in the Australian Capital Territory rules, but in those rules, the requisite connection is to ‘a territory law’, and the relevant forum is ‘the court’: ACT r 6502(b)(iv). 213. As is explained in detail in Chapter 17, the governing law of a contract is the law the parties intended to apply to it (either expressly or by inference); in the absence of an actual choice by the parties, then the proper law of the contract is the law of the legal system with the closest and most real connection to the contract. 214. This particular provision is not found in the New Zealand High Court Rules 2016 on which the harmonised rules are based. The related provision of the English rules authorises service out of the jurisdiction in respect of contract claims where the contract ‘contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of the contract’: Civil Procedure Rules 1998 (SI 1998/3132) (England and Wales), Practice Direction 6B — Service Out of the Jurisdiction, para 3.1(6)(d). 215. Qld r 124(1)(g)(ii). 216. FCt r 10.42, item 1; ACT r 6502(n); Qld r 124(1)(a). 217. NSW Sch 6(n); SA r 40A(n); Tas r 147A(n); Vic r 7.02(n). 218. See 2.56–2.59. 219. [1971] AC 458.

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the sedative and in failing to warn of its dangers if taken by pregnant women. The writ was served in England, under the rule allowing service outside New South Wales when a cause of action arose in the state. The defendant contested jurisdiction, but the Privy Council ultimately upheld the Supreme Court’s jurisdiction in the case. 2.65  In the Privy Council in Distillers, Lord Pearson considered three competing theories as to when a cause of action would arise in the state: (1) when every ingredient of the cause of action occurred in the state; (2) when the last ingredient of the cause of action — the event that completes it and brings it into being — occurs in the state; and (3) when the act that gives the plaintiff a cause of complaint occurs in the state. His Lordship ruled out (1) on precedent and (2) as bad theory. It was (3) that indicated where the cause of action arose. Lord Pearson held that ‘[t]he 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 this cause of action arise?’.220 In Distillers, the defendant’s failure to warn in New South Wales  that Distaval could cause birth defects could constitute negligence in the state, and in substance the cause of action could be said to have arisen there. So, as held by the Privy Council in that case, before service on this ground can be permitted, the important question to answer is whether the act that in substance gives the plaintiff a cause of complaint has occurred in the forum.

Tort committed in the forum 2.66  In the Federal Court, the Northern Territory, Queensland and Western Australia, service outside Australia is permissible in an action ‘founded’ or ‘based’ on a tort committed in the forum.221 The court must locate the place where the tort was committed and be satisfied that it occurred to a sufficient degree within the forum before service outside Australia can be permitted on this basis. This has become much less significant in every jurisdiction but Western Australia because of the head of jurisdiction which permits service out of the jurisdiction if the plaintiff claims to have suffered damage within the forum in consequence of a tort which occurred outside the forum.222 The questions as to whether the alleged wrong could constitute a ‘tort’ and its presumed location are answered by the law of the forum.223 However, at common law much depends on the particular tort alleged and the circumstances of the case. The principle of Distillers224 is adapted, and the question becomes: Where, in substance, did the tort arise?225 With the High Court’s recognition in Dow Jones & Co Inc v  Gutnick226 that an internet defamation occurs anywhere where the plaintiff has a reputation to injure and where the material is downloaded, Briggs has expressed reservations as to how well the Distillers test can work in internet cases. If the law of defamation differs markedly between the forum and other states and countries, then it is necessary to ask by reference to something other than the forum’s law of defamation 220. 221. 222. 223. 224. 225. 226.

At 468. FCt r 10.42, item 4; NT r 7.01(1)(j); Qld r 124(1)(k); WA O 10 r 1(1)(k). See 2.77–2.78. Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391. [1971] AC 458. See 2.64–2.65. (2002) 210 CLR 575; [2002] HCA 56.

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where in substance the tort arose. The ‘substance’ of the defamation could differ between jurisdictions.227 While this might be so for choice of law purposes, the nature of the inquiry in jurisdiction cases does not require this. It only requires the court to decide whether a tort occurred in the forum. The possibility that, according to the law of the forum, the tort might also have taken place somewhere else is irrelevant, even if it did. And that means, for establishing jurisdiction, the question logically remains whether in substance a given tort — as that is defined exclusively in the forum — took place there. 2.67  The harmonised rules use a different form of words. In the jurisdictions which have adopted them, service outside Australia is authorised where the claim is ‘founded on a tortious act or omission which was done or which occurred wholly or partly in’ the forum228 or Australia.229 The precise meaning of this provision is unclear; the English Court of Appeal interpreted the related English rule to require that ‘substantial and efficacious acts’ were committed within the jurisdiction.230 Again, this provision is not significant because of the related ground of jurisdiction in the harmonised rules enabling service out ‘where damage was sustained wholly or partly in’ the forum231 or Australia.232

Product liability claims 2.68  Distillers has had the consequence that product liability claims against foreign manufacturers may be expressed as negligent marketing in the forum, by failure to give appropriate warnings in the forum of the risks associated with the product. In these cases a tort is taken to have been committed in the forum, and service outside Australia may be permitted even though the actual manufacture took place in the foreign country.233 The more basic principle of Distillers is that the tort occurs in the place where in substance the cause of action arose. As a result, if the claim of negligent marketing appears to the court to be artificial or unreal, leave to serve or proceed will not be granted.234 By analogy to the case of negligent misstatement, the place where the defendant’s activity was directed — in the sense of the place where goods were intended to be distributed — should be regarded as significant.235

Defamation 2.69  Torts committed by spoken or written words are generally taken to have been committed where the communication was received. Thus, a defamation occurs where the 227. A Briggs, ‘The Duke of Brunswick and Defamation by Internet’ (2003) 119 Law Quarterly Review 210 at 212–13. 228. ACT r 6502(a)(i) (emphasis added). 229. NSW Sch 6(a)(i); SA r 40A(a)(i); Tas r 147A(a)(i); Vic r 7.02(a)(i). 230. Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391. 231. ACT r 6502(a)(ii). 232. NSW Sch 6(a)(ii); SA r 40A(a)(ii); Tas r 147A(a)(ii); Vic r 7.02(a)(ii). 233. Jacobs v Australian Abrasives Pty Ltd [1971] Tas SR 92; My v Toyota Motor Co [1977] 2 NZLR 113; Castree v ER Squibb & Sons Ltd [1980] 2 All ER 589; D’Ath v TNT Australia Pty Ltd [1992] 1 Qd R 369. 234. Lewis Construction Co Pty Ltd v Tichauer SA [1966] VR 341; Buttigeig v Universal Terminal & 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. 235. Amaca Pty Ltd v Frost (2006) 67 NSWLR 635 at 644–5; [2006] NSWCA 173.

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defamatory publication is received in a comprehensible form. A defamation made by a national broadcast in Australia is therefore committed in every state and territory of the Commonwealth.237 This principle has been applied to alleged defamations occurring on the internet, although not without considerable controversy. 236

Internet defamation 2.70 In Dow Jones & Co Inc v Gutnick,238 the plaintiff, a Victorian resident, sued the defendant company in the Supreme Court of Victoria for defamation. The claim was limited to the extent to which the alleged defamation had occurred in Victoria. The defendant was incorporated in Delaware but it centred its business in New York, from where it published the Wall Street Journal and — through an internet server in New Jersey — Barron’s Online. In 2000, Barron’s published stories about the plaintiff, questioning his business probity. The plaintiff had extensive business interests in the United States, Israel and Australia, but both his social and business life were centred in Victoria. The Victorian writ was served on the defendant in the United States, relying on the claim that, as Barron’s Online could be accessed in Victoria, a tort had been committed in the state, or damage had been suffered in the state.239 The defendant entered a conditional appearance, challenging the right of the Victorian court to exercise jurisdiction and, alternatively, applying for proceedings to be stayed on the ground that the court was a clearly inappropriate forum to deal with the case. Hedigan J in the Supreme Court of Victoria held that the court had jurisdiction, and should exercise it. The Victorian Court of Appeal refused to grant leave to appeal, but the defendant gained special leave to appeal to the High Court of Australia. Nevertheless, the High Court unanimously upheld Hedigan J’s decision. It agreed that the Supreme Court of Victoria had jurisdiction on the ground that if a defamation had been committed in Barron’s Online it had occurred in Victoria. 2.71  The leading judgment in Gutnick is that of Gleeson CJ and McHugh, Gummow and Hayne JJ, who held that, ordinarily, ‘defamation is to be located at the place where the damage to reputation occurs’.240 Their Honours continued:241 It is only when the material is in comprehensible form that the damage to reputation is done and it is damage to reputation which is the principal focus of defamation, not any quality of the defendant’s conduct. In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed.

236. Bata v Bata [1948] WN 366; Eyre v Nationwide News Pty Ltd [1967] NZLR 851. 237. Gorton v Australian Broadcasting Commission (1973) 22 FLR 181; Australian Broadcasting Corp v Waterhouse (1991) 25 NSWLR 519. 238. (2002) 210 CLR 575; [2002] HCA 56. 239. See 2.77. 240. (2002) 210 CLR 575; [2002] HCA 56 at 606. 241. At 607.

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Gaudron J agreed with this judgment,242 and Kirby and Callinan JJ concurred. Finding the repeated use of the word ‘ordinarily’ in this passage in the joint judgment significant, Richardson and Garnett have suggested that the court in Gutnick has recognised a more ‘fluid’ standard for locating an internet defamation than is often supposed. It is merely a presumption that the place of downloading is the place of the tort, but in other cases different connections might locate the defamation somewhere else.243 In Gutnick, unlike the other judges, Kirby J decided that Victorian jurisdiction was established on the ground that damage had been sustained in Victoria, and so for the purpose of establishing jurisdiction he did not have to decide where an internet defamation was located.244 However, he did deal with the question of the defamation’s location for choice of law purposes, and the conclusion would be equally applicable for identifying the place ascribed to a defamation for the purpose of establishing jurisdiction. Kirby J also held that the damage to reputation is essential to the claim in defamation, and so ‘[t]he material has to be accessed or communicated in a jurisdiction where the plaintiff has a reputation’.245 That is usually the place where the plaintiff lives, but damage — and so defamation — can also occur in all places where the plaintiff has a significant reputation. It potentially means that the one publication can be subject to a range of different defamation laws.246 Callinan J agreed that the defamation is deemed to occur ‘where comprehension of defamatory matter occurs’.247 This can give rise to a separate cause of action in each place where the communication is comprehended.248 In the result, Barron’s Online was capable of being downloaded, and was downloaded in comprehensible form, in Victoria. The allegation was therefore one of a tort having been committed in the state. There is nothing exceptional in Gutnick’s conclusion that the place of downloading is ordinarily the place where an internet defamation occurs. This is also the conclusion that English courts have drawn.249 2.72  Central to the concerns about the decision in Gutnick is the ‘Zimbabwe factor’. This is that, if it is possible for purposes of jurisdiction to locate a defamation at any place at which the plaintiff has a reputation and where the material can be downloaded, then anyone publishing on the internet has to measure the material against the defamation laws of every country. If all countries took the Gutnick approach, jurisdiction could be exercised — as it was put in the joint judgment — ‘from Afghanistan to Zimbabwe’.250 The ubiquitous nature of the internet means that publication potentially occurs immediately in any country on the globe. The means of avoiding this, as was argued in Gutnick, is the adoption of a ‘single publication rule’, by which a single, allegedly defamatory publication is deemed to be located in one place only. That place could potentially be identified by 242. At 610. 243. M Richardson and R Garnett, ‘Perils of Publishing on the Internet: Broader Implications of Dow Jones v Gutnick’ (2004) 13 Griffith Law Review 74 at 78. 244. (2002) 210 CLR 575; [2002] HCA 56 at 622. 245. At 639. 246. At 639. 247. At 652. 248. At 652. 249. Godfrey v Demon Internet [2001] QB 201; Loutchansky v Times Newspapers Ltd [2002] QB 783; King v Lewis [2004] EWHC 168 at [15]. 250. (2002) 210 CLR 575 at 609; [2002] HCA 56.

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reference to a number of possible connections. For example, it could be the place where the publisher acted (rather than the place where publication occurred), or the place where the material was uploaded on to the internet, or the place of the plaintiff ’s habitual residence — the last of which was the Australian Law Reform Commission’s preference in its 1992 Choice of Law report.251 All single publication options were naturally rejected in Gutnick. It concerned the judges that, especially given the dominance within the internet of American servers, those connections that focus on the defendant’s place of acting, or the place of uploading, would lead to the import of American standards of defamatory conduct.252 So, the court continued to allow injury to reputation, as the gist of defamation, to determine the relevant locating factor for internet libels. Callinan J appears to have had no concern whatsoever about the ‘Zimbabwe factor’.253 Svantesson has surveyed the possibility of locating a defamation in other places — where the material was created; where it was uploaded; where the defamatory material was acquired; where it was understood; where the act injuring the plaintiff occurs; or where the plaintiff suffers damage. He also concluded that the place where the material was comprehended — the Gutnick location — was imperfect, but seemed to be the best option.254 2.73  Those who lamented Gutnick often expressed concern that it threatened the right to free expression on the internet. Further, the High Court’s statement of the rules of jurisdiction (and choice of law) that enabled local laws to apply to internet communications was, it was argued, singularly inappropriate for a medium of communication that was essentially global.255 This claim, which rests on the supposed effect of the Zimbabwe factor, can be exaggerated. The mere fact that a court can, under its own rules, and does, exercise jurisdiction does not necessarily mean that it has any material consequences. Nor does it mean that liability is imposed. For the exercise of jurisdiction does not mean that coercive power can be applied against the defendant. As discussed earlier,256 it is jurisdiction coupled with the ability to enforce a judgment against the defendant that amounts to coercion. It will hardly ever be the case that, if the defendant is absent, merely exercising jurisdiction on the ground that a tort was committed in the forum will, of itself, enable the resulting judgment to be enforced internationally.257 At best, the plaintiff will get a judgment that can be enforced against any assets the defendant has in the forum, or the right to garnishee any debtors the defendant might have in the forum.258 However, the larger question in Gutnick was whether the internet creates such different conditions for communication that different rules should be crafted for it. Here, Rolph objected that the essence of the tort 251. 252. 253. 254. 255. 256. 257.

258.

Australian Law Reform Commission, Choice of Law, Report No 58, Canberra, AGPS, 1992, p 57. (2002) 210 CLR 575 at 609, 633, 653–4; [2002] HCA 56. At 651. D J B Svantesson, ‘“Place of Wrong” in the Tort of Defamation — Behind the Scenes of a Legal Fiction’ (2005) 17 Bond Law Review 149. R Garnett, ‘Dow Jones & Company v Gutnick: An Adequate Response to Transnational Internet Defamation?’ (2003) 4 Melbourne Journal of International Law 196. See 2.2. Cf Svantesson, above n 254, at 160. For the Australian rules, see 5.11–5.17 and 5.56–5.59. The enforcement of an Australian judgment overseas will naturally depend on the recognition and enforcement rules of the relevant foreign country. Briggs, above n 227, at 214.

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is not the method of making the communication, but that another person understood it. And, in any case, the risk of adopting a technology-specific rule is that it cannot deal with, or even foresee, emerging technologies of communication.259 He therefore believed that the place of downloading was rightly maintained as the place of the tort.260 Richardson and Garnett did so as well, but only because they believed that the court adopted a flexible approach in allowing that an internet defamation could, on occasion, shift from the place of downloading.261 2.74  There are means other than the rules of international jurisdiction for dealing with the Zimbabwe factor. One, raised in Gutnick, is the doctrine of forum non conveniens, which in Australia will defeat the plaintiff ’s choice of forum if the court, by reference to geographical contacts, decides that it is a clearly inappropriate forum for dealing with the case. Gutnick itself though, a case brought in the plaintiff ’s home state, is not an example of an inappropriate court for the supposed victim to litigate in. It might be different if the plaintiff, like the defendant, were foreign to the forum, and had only decided to sue there because he had something of a reputation to maintain in the forum or because it had a more plaintiff-friendly defamation law than other places. Forum non conveniens may not, however, be an effective way to deal with this.262 For that reason, some believe that the better principle would be to allow that the tort had occurred in the forum (or anywhere else) if the defendant intended to harm the plaintiff ’s reputation there.263 This would not give a single publication rule — the publisher might ‘intend’ injury in a number of places with which the plaintiff has some significant connection. But nor would it leave the Zimbabwe factor intact, as the possible places where the defamation was located would be limited to those within the range of both the plaintiff ’s and the defendant’s spheres of significant business or personal activity.

Other communication torts 2.75  Misrepresentations are committed in the place where the communication was received and acted upon,264 if the defendant knew or anticipated that the plaintiff would receive the message there.265 Where a statement is made at large, that is, not directed to a particular person, it is necessary that the party making the statement targeted or directed

259. D Rolph, ‘The Message, Not the Medium: Defamation, Publication and the Internet in Dow Jones & Co v Gutnick’ (2002) 24 Sydney Law Review 263 at 270–1. 260. At 280; Svantesson, above n 254, at 179–80. 261. Richardson and Garnett, above n 243. 262. For example, Berezovsky v Michaels [2000] 2 All ER 986. 263. Garnett, above n 255, at 216; O Bigos, ‘Jurisdictional Discretion in Defamation on the Internet’ [2004] Lloyd’s Maritime and Commercial Law Quarterly 129 at 135. 264. Diamond v Bank of London and Montreal Ltd [1979] QB 333; Cordoba Shipping Co Ltd v National State Bank [1984] 2 Lloyd’s Rep 91; Sedgwick Ltd v Bain Clarkson Ltd (1994) 56 FCR 578; Williams v The Society of Lloyd’s [1994] 1 VR 274 at 316–17; Morin v Bonhams & Brooks Ltd [2003] 2 All ER (Comm) 36 at 46–8; Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539. 265. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 568; Telesto Investments Ltd v UBS AG (2012) 262 FLR 119; [2012] NSWSC 44 at [197]–[203]; Clurname Pty Ltd v McGraw-Hill Financial, Inc [2017] FCA 1319 at [65].

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the statement to the particular jurisdiction in which it is claimed that the statement was received.266

Misleading conduct 2.76  For the purposes of jurisdiction, a claim based on the statutory prohibition of misleading or deceptive conduct under the Australian Consumer Law is often treated as tortious,267 although in most jurisdictions there are separate bases of jurisdiction applicable to statutory claims which would authorise service out for a claim based on misleading or deceptive conduct.268

Damage suffered in the forum 2.77  In every jurisdiction but Western Australia, service outside Australia is permitted if the proceeding is ‘founded on’ or caused by a tortious act or omission in respect of which damage was suffered wholly or partly in the forum269 or Australia.270 Accordingly, it is possible to serve process outside Australia even if much of the damage is suffered outside the forum, and some only is suffered inside the forum’s borders once the plaintiff moves there. This rule applies to ‘any compensable damage caused by the tort, including economic loss’.271 For example, it is sufficient if the plaintiff incurred medical expenses in the forum;272 lost property in the forum that was offered as security to finance an overseas purchase;273 or suffered economic losses in the forum.274 This ground has become the more popular means of establishing international jurisdiction in personal injuries cases, but it is also available in other tort claims.275 Even where only part of the damage is suffered in the forum, if the plaintiff is allowed to proceed against the defendant on this ground the plaintiff is then entitled to claim for recovery of all of the damage suffered — whether sustained inside the forum or outside.276 A defendant served on this ground may join a third party for contribution — even before judgment is entered against the defendant — on the basis that, by the adverse judgment, the defendant has suffered damage in the forum.277 2.78  This ground arguably allows the most exorbitant international jurisdiction exercised by Australian courts. In effect, it allows service outside Australia merely because 266. Ward Group Pty Ltd v Brodie & Stone plc (2005) 143 FCR 479; [2005] FCA 471. 267. Commonwealth Bank of Australia v  White [1999] 2 VR 681 at 697–9; [1999] VSC 262; Centrebet Pty Ltd v  Baasland (2012) 272 FLR 69; [2012] NTSC 100 at [5]; Lew Footwear Holdings Pty Ltd v  Madden International Ltd [2014] VSC 320 at [196]; cf Williams v Society of Lloyd’s [1994] 1 VR 274 at 312. 268. See 2.80. 269. FCt r 10.42, item 5; ACT r 6502(a)(ii); NT r 7.01(1)(k); Qld r 124(1)(l). 270. NSW Sch 6(a)(ii); SA r 40A(a)(ii); Tas r 147A(a)(ii); Vic r 7.02(a)(ii). 271. Sigma Coachair Group Pty Ltd v Bock Australia Pty Ltd [2009] NSWSC 684 at [124]. 272. Flaherty v Girgis (1987) 162 CLR 574. 273. Baxter v RMC Group plc [2003] 1 NZLR 304. 274. Colosseum Investment Holdings Pty Ltd v  Vanguard Logistics Services Pty Ltd [2005] NSWSC 803; PCH Offshore Pty Ltd v Dunn (No 2) (2010) 273 ALR 167; [2010] FCA 897. 275. Metall Und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 at 437; Darrell Lea Chocolate Shops Pty Ltd v Spanish-Polish Shipping Co Inc (1990) 25 NSWLR 568; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56; Baxter v RMC Group plc [2003] 1 NZLR 304. 276. Flaherty v Girgis (1985) 4 NSWLR 248 at 266–7. 277. Australian Mutual Provident Society v GEC Diesels Australia Ltd [1989] VR 407.

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of the plaintiff ’s personal connection — usually by reason of residence — with the forum, despite the complete absence of any connection between the events or the defendant on the one hand, and the forum on the other.278 The plaintiff ’s capacity to earn naturally follows the plaintiff wherever they happen to be. As Flaherty v Girgis279 recognised that diminution of earning capacity was ‘damage’ within the meaning of the rule, the rule effectively edges close to allowing service overseas merely because the plaintiff is resident in the forum. And jurisdiction exercised merely because of a plaintiff ’s personal connection with the forum has long been regarded as exorbitant, and even an excessive claim of power over a defendant.280 For this reason, the rule allowing extraterritorial service on this ground was challenged in New South Wales on the basis that it was outside the state parliament’s power to legislate for the peace, welfare and good government of New South Wales. While this question had been left open in Challenor v Douglas,281 it was brought squarely before the New South Wales Court of Appeal in Flaherty v Girgis.282 There, the attempt by New South Wales  to exercise jurisdiction and impose liability on a person who had no connection with the state was argued to be outside the state’s legislative powers. It would only be within state legislative power to impose liability on a person who was outside the state if that was done by reference to a fact, event, thing or transaction that had a direct connection with the state. However, in Flaherty v Girgis, McHugh JA (with whom Kirby P and Samuels JA agreed) held that, in New South Wales, liability on the part of the defendant was already recognised by the application of the state’s choice of law rules, so the rule was only providing a means by which a court could render judgment in a matter for which New South Wales laws already recognised a pre-existing liability.283 Accordingly, the rule was valid. But, with respect, McHugh JA’s reasons in Flaherty are based on a circular, bootstrapping argument. McHugh JA held that New South Wales had the power to exercise jurisdiction and impose liability on a person who was outside the state because New South Wales  had already imposed liability on the person. On this reasoning, any exercise of jurisdiction by a state court would be constitutionally permissible in a multi-state case simply because liability would be recognised, or denied, under the application of the state’s choice of law rules. The doubtful aspect of the Court of Appeal’s decision in Flaherty is therefore that the constitutional validity of a rule having extraterritorial effect was not determined by reference to a ‘fact, event, thing or transaction’ connected with the state, but by reference to the state’s own laws — specifically, its choice of law rules. And, because of choice of law rules, whenever a state court is seised of jurisdiction in a multi-state case, even without the defendant before the court, it will have to decide the question of liability. The question of state legislative power was not argued in the appeal to the High Court 278. For example, Flaherty v Girgis (1987) 162 CLR 574; Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10. 279. (1985) 4 NSWLR 248. 280. The French claim to jurisdiction on the basis of the plaintiff ’s French citizenship under the former Code Civil, Art 14, was an example: L I de Winter, ‘Excessive Jurisdiction in Private International Law’ (1968) 17 International and Comparative Law Quarterly 706 at 713; K H Nadelmann, ‘Jurisdictionally Improper Fora in Treaties on the Recognition of Judgments’ (1967) 67 Columbia Law Review 995. 281. [1983] 2 NSWLR 405. 282. (1985) 4 NSWLR 248. 283. At 267–8.

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in Flaherty v  Girgis. On later occasions when the rule appeared in appeals before the High Court, Kirby J noted the exorbitance of the rule, but also that the question of state constitutional power to make the rule was not raised with the court.285 284

Grounds of jurisdiction — application of forum legislation 2.79  The rules in most jurisdictions authorise service out of the jurisdiction in a number of different cases where the proceedings concern forum legislation. In the Federal Court, the High Court, the Australian Capital Territory, New South Wales, Queensland, South Australia, Tasmania and Victoria, the rules allow service outside Australia where the action concerns the construction, effect or enforcement of forum286 or Australian287 legislation. The Federal Court and High Court Rules also provide for service outside Australia where there is a breach of a statute in Australia,288 or a breach of a statute outside Australia which causes damage to be suffered in Australia,289 or where the proceeding is for any relief or remedy under an Act.290 Under the harmonised rules, service out is authorised ‘when the claim arises’ under a forum291 or an Australian enactment and: (i) any act or omission to which the claim relates was done or occurred in the forum or Australia, or (ii) any loss or damage to which the claim relates was sustained in the forum or Australia, or (iii) the enactment applies expressly or by implication to an act or omission that was done or occurred outside Australia in the circumstances alleged, or (iv) the enactment expressly or by implication confers jurisdiction on the court over persons outside Australia.292

Paragraphs (i), (iii) and (iv) are entirely new in Australia as heads of jurisdiction. In paras (i) and (ii) the breadth of the terms ‘to which the claim relates’ suggests that these provisions will have a wide reach. Paragraph (ii) is similar to the provision in the Federal Court Rules enabling service out of the jurisdiction in respect of a breach of a statute outside Australia causing damage in Australia.293 The meaning of an act or omission ‘to which the claim relates’ is more broadly worded than simply referring to an aspect of the claim itself. Where a 284. Flaherty v Girgis (1987) 162 CLR 574. In the High Court, the rule was argued to be inconsistent with the provisions of the Service and Execution of Process Act 1901 (Cth), and invalid on that ground. The High Court also rejected this argument. 285. Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 528; [2002] HCA 10; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 622; [2002] HCA 56. As President of the Court of Appeal, Kirby J had agreed with McHugh JA’s judgment in Flaherty v Girgis: (1985) 4 NSWLR 248 at 253. 286. FCt r 10.42, item 14; ACT r 6502(p); Qld r 124(1)(t). 287. NSW Sch 6(p); SA r 40A(p); Tas r 147A(p); Vic r 7.02(p). 288. FCt r 10.42, item 12; for example, Liftronic Pty Ltd v Montgomery Elevator Co [1996] ATPR 41–458; Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539. 289. FCt r 10.42, item 13. This includes claims under the Trade Marks Act 1995 (Cth): see International Awards Group LLC Asian Advertising Festival (Spikes) Asia Pty Ltd (No 1) (2016) 120 IPR 473; [2016] FCA 617. 290. FCt r 10.42, item 15. 291. In the Australian Capital Territory rules, the relevant reference in this provision is to ‘a territory law’: ACT r 6502(j). 292. ACT r 6502(j); NSW Sch 6(j); SA r 40A(j); Tas r 147A(j); Vic r 7.02(j). 293. FCt r 10.42, item 13.

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representation is communicated from outside Australia to within Australia, with knowledge of the defendant, this will come within the terms of this paragraph.294 Paragraph  (iii), which  is applicable when the legislation ‘applies expressly or by implication to an act or omission that was done or occurred’ outside Australia, might include, for example, the reference in s 5(1) of the Competition and Consumer Act 2010 (Cth) to the application of parts of that legislation, including most of the Australian Consumer Law, to conduct outside Australia engaged in by Australian companies, citizens, and ordinary residents. The purpose of para (iv) is unclear; it is unusual for substantive Australian legislation to confer personal jurisdiction. In the Federal Court, High Court and Queensland, service out is authorised where the action concerns a ministerial or an administrative act done under a forum statute.295 In Queensland, service ex iuris is permitted in proceedings under an imperial or Commonwealth Act affecting property in the state.296 In the Northern Territory and Western Australia, the only specific reference to statutory claims are the rules allowing service out in proceedings brought under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth).297 2.80  Claims that the defendant breached s  18(1) of the Australian Consumer Law, the statutory prohibition against misleading or deceptive conduct,298 are common in international litigation. In those jurisdictions where there are no specific provisions in the rules of court dealing with statutory claims, the plaintiff might rely instead on the analogous basis of jurisdiction. For example, a claim for breach of the statutory prohibition on misleading or deceptive conduct is usually analogised to a claim in tort.299 Other statutory claims may be more analogous to claims in contract.300

Grounds of jurisdiction — property Property in the forum 2.81  For the Federal Court, the High Court and Queensland, the rules provide for a person to be served outside Australia where the subject matter of the action is property situate within the forum,301 both real and personal. In the Australian Capital Territory, New South Wales, South Australia, Tasmania and Victoria, service out of the jurisdiction 294. Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd [2011] NZLR 754 at [106] (applying the provision of the New Zealand High Court Rules on which para (j) of the harmonised rules is based). 295. FCt r 10.42, item 16; Qld r 124(1)(u). 296. Qld r 124(1)(t)(ii). 297. NT r 7.01(1)(o); WA O 10 r 1(1)(l). This is also a ground of jurisdiction in Queensland: Qld r 124(1)(q). 298. The Australian Consumer Law is contained in the Competition and Consumer Act  2010 (Cth) Sch  2. Section  18(1) is the equivalent to s  52(1) of the Trade Practices Act  1974 (Cth). Its wording is almost identical (the only difference is that s 52(1) prohibited misleading or deceptive conduct by corporations, whereas s 18(1) refers to persons, which includes corporations). Because of the similarity of the provisions, the extensive jurisprudence relating to s 52(1) of the Trade Practices Act should be treated as relevant to s 18(1) of the Australian Consumer Law. See Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320 at [197]. 299. See 2.76. 300. Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320 at [177]. 301. FCt r 10.42, item 21; Qld r 124(1)(b)(i).

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is authorised if the subject matter of the claim is land or other property in the forum or Australia.303 The primary enquiry is therefore the location or situs of the property. This is a straightforward matter where the property is land or a tangible, which are situate where they are located in space and time. It can be a much more complex issue where the property is intangible, as in the case of choses in action or intellectual property rights. The situs of property is also important in choice of law issues. This is discussed in Chapter 20, and the principles by which the law attributes a physical location to property in choice of law issues are the same as those which would be used on this ground to determine whether the action concerns property in the territory of the forum. 302

Land in the forum 2.82  In the Northern Territory and Western Australia, the rules allow service outside Australia where the subject matter is land in the forum.304 There is, under these general rules, no extraterritorial jurisdiction where the property concerned is personal. However, there might be more specific rules allowing service outside Australia in actions relating to particular kinds of personal property; for example, shares in a company situate in the forum.305 Thus, where possible, actions relating to personal property in these jurisdictions must be brought on contract or tort grounds. 2.83  Whether the rules allow service outside Australia in actions concerning real and personal property or only land, this ground is only available where the action relates to the title to, or possession of, the property.306 Thus, in Shire of Yeerongpilly v  Love307 this ground permitted service outside Queensland in an action for the recovery of rates because, by statute, the unpaid rates also constituted a charge on the land in the state. The action therefore affected title to property: namely, a security interest in the land. On the other hand, in Victoria v Hansen308 service outside Victoria was not permitted in an action for the recovery of stamp duty levied on a transfer of land in Victoria, as the legislation only imposed a personal obligation on the taxpayer to pay the duty. Extraterritorial service has also been denied in actions for the recovery of rent,309 breach of a covenant under a lease,310 enforcing a contract for the insurance of property in the forum,311 and enforcing a royalty agreement on oil exploited in the forum.312

302. 303. 304. 305. 306. 307. 308. 309. 310. 311. 312.

ACT r 6502(e). NSW Sch 6(e); SA r 40A(e); Tas r 147A(e). NT r 7.01(1)(a); WA O 10 r 1(1)(a)(i). WA O 10 r 1(1)(a)(ii). Victoria v  Hansen [1960] VR 582 at 586; Hall v  Australian Capital Territory Electricity Authority [1980] 2 NSWLR 26. (1906) 1 QJPR 73. [1960] VR 582. Agnew v Usher (1884) 14 QBD 78. Tassell v Hallen [1892] 1 QB 321. Muusers v State Government Insurance Office (Qld) [1980] 2 NSWLR 73. BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725.

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Instruments affecting property in the forum 2.84  There are also rules authorising service outside Australia where the action concerns the construction, effect or enforcement of any act, deed, will, other instrument, contract, obligation or liability affecting land or property in the forum,313 or Australia.314 In the Northern Territory and Western Australia, the rules only apply to documents affecting land in the forum.

Mortgage of personal property in the forum 2.85  In the Northern Territory and Western Australia, service outside Australia is permissible in an action relating to a mortgage of personal property located in the forum.315 This ground was originally required in those jurisdictions where actions relating to personal property had to be justified on contract or tort grounds, because they were held not to include actions for the enforcement of securities on personal property.316

Trusts 2.86  In the states and territories, service of initiating process on a trustee of property who is outside Australia is possible for the execution of written trusts, if the trust is to be executed under the law of the forum.317 The property must be in the forum at the time leave to serve is sought or presumably, under the rules allowing service without leave, when service takes place.318 This does not help to establish jurisdiction, therefore, if the trustee has misappropriated property and successfully absconded. 2.87  In the jurisdictions that have adopted the uniform rules, service out of the jurisdiction is authorised where the claim is for a constructive trust and ‘the alleged liability of the person to be served arises out of an act or omission that was done or occurred wholly or partly’ in the forum319 or in Australia.320 In the Federal Court and the High Court, service of process outside Australia is possible if the proceedings relate to trusts governed by the law of the forum.321

Grounds of jurisdiction — probate and administration 2.88  The granting of probate or letters of administration is the court’s official recognition of the title of a personal representative to a deceased person’s estate. It is not a personal action directed towards the determination of a dispute, albeit that a contest as to another 313. 314. 315. 316. 317. 318. 319. 320. 321.

FCt r 10.42, item 6; ACT r 6502(e); NT r 7.01(1)(b); Qld r 124(1)(c); WA O 10 r 1(1)(b). NSW Sch 6(e); SA r 40A(e); Tas r 147A(e); Vic r 7.02(e). NT r 7.01(1)(p); WA O 10 r 1(1)(j). Deutsche National Bank v Paul [1898] 1 Ch 283; Kolchmann v Meurice [1903] 1 KB 534; Hughes v Oxenham [1913] 1 Ch 254. ACT r 6502(f); NSW Sch 6(f); NT r 7.01(1)(e); Qld r 124(1)(f); SA r 40A(f); Tas r 147A(f); Vic r 7.02(f); WA O 10 r 1(1)(d). Winter v Winter [1984] 1 Ch 421. ACT r 6502(l). NSW Sch 6(l); SA r 40A(l); Tas r 147A(l); Vic r 7.02(l). FCt r 10.42, item 7.

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person’s entitlement to act as personal representative might exist. The rules therefore make no provision for service outside Australia in applications for a grant of probate or letters of administration. At common law the court only has jurisdiction to grant probate or letters of administration if the deceased left assets in the forum.322 In the Australian Capital Territory, the Northern Territory and Queensland, legislation provides that the courts have jurisdiction to grant probate or letters of administration even when the deceased did not leave any property in the forum or, for that matter, anywhere else.323 2.89  Except in the Federal Court and the High Court, service outside Australia is permitted in proceedings for the administration of the deceased person’s estate, when the deceased died domiciled in the forum.324 Although there is no requirement that the deceased’s property or personal representative be in the forum, unless that is the case, there will rarely be a practical need to assume jurisdiction on this ground.

Grounds of jurisdiction — foreign judgments and awards 2.90  In the Australian Capital Territory, New South Wales, South Australia, Tasmania and Victoria service outside Australia is permitted in an action relating to the enforcement of a foreign judgment in the forum.325 This overcomes a serious obstruction to the enforcement of foreign judgments by litigation (as opposed to enforcement by registration).326 However necessary it is to enforce the judgment in the forum, the jurisdiction of the forum court would otherwise depend on the foreign judgment being situate in the territory of the forum, or emerging from a contractual relationship connected with the forum. The situs of the foreign judgment, as a debt payable to the plaintiff judgment creditor, is affected by the complications applicable to the situs of debts generally, and it will often be situate outside the place where it is to be enforced.327 2.91  The Australian Capital Territory, New South Wales, South Australian, Tasmanian and Victorian rules also provide for the enforcement of foreign arbitral awards in the forum.328

Grounds of jurisdiction — injunctions, interim and ancillary relief, freezing orders 2.92  The rules of all the superior courts authorise service out of the jurisdiction where an injunction is sought enjoining the defendant to do, or refrain from doing, anything within the forum,329 or within Australia.330 The rules in the jurisdictions that have adopted 322. In the Goods of Tucker (1864) 3 Sw and Tr 585; 164 ER 1402; In the Goods of Coode (1867) LR 1P&D 449. 323. Administration and Probate Act 1929 (ACT) s 9(2); Administration and Probate Act 1969 (NT) s 14(2); Succession Act 1981 (Qld) s 6(2). 324. ACT r 6502(i); NSW Sch 6(i); NT r 7.01(1)(d); Qld r 124(1)(e)(i); SA r 40A(i); Tas r 147A(i); Vic r 7.02(i); WA O 10 r 1(1)(d). 325. ACT r 6502(m); NSW Sch 6(m); SA r 40A(m); Tas r 147A(m); Vic r 7.02(m). 326. See 5.8–5.42. 327. See 20.10–20.15. 328. ACT r 6502(q)(ii)–(iii); NSW Sch 6(q)(ii)–(iii); SA r 40A(q)(ii)–(iii); Tas r 147A(q)(i)–(ii); Vic r 7.02(q)(ii). 329. FCt r 10.42, item 23; ACT r 6502(d)(i); NT r 7.01(1)(k); Qld r 124(1)(o); WA O 10 r 1(1)(g). 330. NSW Sch 6(d)(i); SA r 40A(d)(i); Tas r 147A(d)(i); Vic r 7.02(d)(i).

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the harmonised rules also allow service out of the jurisdiction for applications for interim or ancillary relief in relation to current or pending judicial or arbitral proceedings or an arbitration agreement, ‘in respect of any matter or thing in or connected with’ the forum or Australia.331 2.93  In the jurisdictions that have adopted the harmonised rules, the rules also make specific provision for service out of the jurisdiction ‘when the claim … is an application for a freezing or ancillary order … in respect of any matter or thing in or connected with Australia’.332 In the Federal Court, Queensland, the Northern Territory and Western Australia, the rules authorising service out of the jurisdiction make no specific provision for service of applications for freezing orders. In BCBC Singapore Pte Ltd v PT Bayan Resources TBK, Pritchard J granted leave to serve an application for a freezing order overseas pursuant to O 10 r 7, which enables the Western Australian court to grant leave to serve ‘any originating process other than a writ’. 333 There are equivalent provisions under the rules of the Federal Court, the Northern Territory and Queensland.334 2.94  The rules of all the superior courts also contain uniform rules on freezing orders. In all jurisdictions, except the Australian Capital Territory and Victoria, the uniform rules of court dealing specifically with freezing orders authorise service of an application for freezing order on a person outside Australia if any of the assets to which the order relates are within the jurisdiction.335 In BCBC Singapore Pte Ltd v PT Bayan Resources TBK, Pritchard J held that O 10 r 7, which required the court to grant leave, prevailed over the provision of the rules of court enabling service of an application for a freezing order without any requirement for leave to do so.336 In the Australian Capital Territory and Victoria, the rules dealing specifically with freezing orders do not authorise service of an application for a freezing order outside Australia; instead, they refer to the rules relating to service out of the jurisdiction.337

Method of service 2.95  Where process is to be served in New Zealand under the Trans-Tasman Proceedings Act 2010 (NZ), service must be effected in accordance with the requirements of the place of issue.338 Otherwise, in most jurisdictions the parties’ agreement as to the means of service is effective. Rules in all jurisdictions except Tasmania allow the parties to a contract expressly to agree on a method of service.339 These rules obviate the need for physical service, and ACT r 6502(d)(ii); NSW Sch 6(d)(ii); SA r 40A(d)(ii); Tas r 147A(d)(ii); Vic r 7.02(d)(ii). ACT r 6502(d)(iii); NSW Sch 6(d)(iii); SA r 40A(d)(iii); Tas r 147A(d)(iii); Vic r 7.02(d)(iii). [2012] WASC 170 at [55]–[57]. FCt r 10.44; NT r 7.03; Qld r 127(b). FCt r 7.37; NSW r 25.16; NT r 37A.07; Qld r 260F; SA r 247(7); Tas r 937G; WA O 52A(7). [2012] WASC 170 at [55]–[57]. Notes to ACT Subdiv 2.9.4.2 and Vic r 37A.07 (stating that an application for a freezing order or ancillary order can be served outside Australia where service out is authorised under r 6502 and r 7.02 respectively). 338. Trans-Tasman Proceedings Act 2010 (Cth) s 9(2). 339. FCt r 10.28; ACT r 6463; NSW r 10.6; NT r 6.13; Qld r 119; SA r 67(1)(d); Vic r 6.14; WA O 9 r 3; see, for example, Tharsis Sulphur & Copper Co Ltd v Société Industrielle et Commerciale des Métaux (1889) 58 LJKB 435; Samarni v Williams [1980] 2 NSWLR 389. 331. 332. 333. 334. 335. 336. 337.

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therefore can reduce the costs of service if the defendant is outside the territorial limits of the forum. 2.96  If the parties have not made an agreement as to the method of service, the method to be used depends on whether Australia is party to a multilateral or bilateral convention with the country in which the defendant is to be served. The Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters 1965 (the Hague Service Convention)340 facilitates service in and from countries which are also parties to the convention.341 Australia has also acceded to a number of bilateral conventions, largely made by the United Kingdom with European countries in the 1920s and 1930s, for the manner of serving legal process in those countries. Service under any of these conventions is only possible where the circumstances already justify service under the domestic rules of long-arm jurisdiction. 2.97  Under the Hague Service Convention, service is achieved by cooperation between the designated state authorities nominated by each state party.342 In Australia, the relevant authorities are the Commonwealth Attorney-General’s Department, which is the Central Authority, and the registries of the Federal and Supreme Courts, which are additional, or forwarding, authorities under the convention. The Australian courts have enacted specific provisions in their rules which deal with the process by which service is to be achieved under the Hague Service Convention.343 There are two aspects to the convention. The first facilitates the service of Australian process in other convention states. The second facilitates the service of foreign process, issued by other convention states, in Australia. 2.98  The provisions enabling service overseas under the Hague Service Convention prevail over other provisions of the rules relating to service.344 If the defendant to Australian proceedings is in another contracting state, the plaintiff to Australian proceedings makes an application to the registry of the court in which proceedings are commenced, for service in that other contracting state.345 The registry communicates the request for service to the relevant central or other authority in another convention state.346 The foreign authority which deals with the request issues a certificate of service, once it has been achieved, which is then transmitted to the relevant Australian registry. The registry is obliged to send a copy of that certificate to the applicant for service under the convention, or their lawyer.347 340. Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters, 15 November 1965, Hague, No 14 (entered into force 10 February 1969) (‘the Hague Service Convention’) entered into force in Australia on 1 November 2010. 341. At the date of writing, in April 2018, there were 73 states party to the Hague Service Convention. 342. See Hague Service Convention Art 2. 343. FCt Div 10.6; ACT Div 6.8.12; NSW Pt 11A; NT O 7A; Qld Pt 7 Div 3; SA Ch 3, Pt 4, Div 4; Tas Pt 38A; Vic 80; WA O 11A. 344. FCt r 10.62; ACT r 6551; NSW r 11A.2; NT r 7A.02; Qld r 130B; SA r 41B; Tas r 970B; Vic r 80.02; WA O 11A r 2. 345. FCt r 10.64; ACT r 6553; NSW r 11A.4; NT r 7A.04; Qld r 130D; SA r 41D; Tas r 970D; Vic r 80.04; WA O 11A r 4. 346. FCt r 10.65; ACT r 6554; NSW r 11A.5; NT r 7A.05; Qld r 130E; SA r 41E; Tas r 970E; Vic r 80.05; WA O 11A r 5. 347. FCt r 10.66; ACT r 6555; NSW r 11A.6; NT r 7A.06; Qld r 130F; SA r 41F; Tas r 970F; Vic r 80.06; WA O 11A r 6.

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The rules of court contain specific provisions about applications for default judgments in cases where service is done under the Hague Service Convention.348 2.99  The rules of court also contain provisions which deal with the service in Australia of the process of foreign courts which are parties to the Hague Service Convention. In such a case, a request for service from a foreign authority might be conveyed either to the AttorneyGeneral’s department, as Central Authority, or directly to the relevant registry. In either case, the registry of the relevant court is obliged to serve the document,349 subject to minimal restrictions.350 2.100  Under the other service conventions, service of Australian process abroad is achieved in a similar way, although the actual service of documents outside Australia is usually conducted through an Australian or British diplomatic or consular mission. The rules of court make provision for service in such cases.351 In most states, the internal territories, the Federal Court and the High Court, the rules for the manner of international service provide that, when service is to occur in a convention country, it must be effected in accordance with the relevant convention.352 2.101  Where the country in which service outside Australia has to be made is not party to a convention with Australia, slightly different rules apply. In New South Wales, Tasmania and Victoria, the Attorney-General can nominate countries not party to a convention, where the process is to reflect that applicable to convention countries and the initiating process is therefore transmitted through the Attorney-General for service through a diplomatic or consular mission.353 The Western Australian rules also contemplate the possibility that service of process overseas, in a country that is not party to a convention, could be done through an Australian or British diplomatic or consular mission.354 If a mission is not used, then service must be done personally or through agents in the relevant foreign country. In all jurisdictions except Queensland, the rules provide that personal service is not required as long as the local requirements of the place of service are observed.355 In Queensland, service abroad must be done in the same way as is required in the forum,356 but is not to be conducted contrary to the requirements for service of process in the place where service is being effected.357

348. FCt rr 10.69–10.72; ACT rr 6558–6561; NSW rr 11A.9–11A.12; NT rr 7A.09–7A.12; Qld rr 130I–130L; SA rr 41I–41L; Tas rr 970I–970L; Vic rr 80.09–80.12; WA O 11A rr 9–12. 349. FCt r 10.75; ACT r 6564; NSW r 11A.15; NT r 7A.15; Qld r 130O; SA r 41O; Tas r 970O; Vic r 80.15; WA O 11A r 15. 350. FCt rr 10.73–10.74; ACT rr 6562–6563; NSW rr 11A.13–11A.14; NT rr 7A.13–7A.14; Qld rr 130M–130N; SA rr 41M–41N; Tas rr 970M–970N; Vic rr 80.13–80.14; WA O 11A rr 13–14. 351. FCt Div 10.5; NT rr 7.08–7.09; Qld r 130. 352. FCt r 10.43(2)–(4), (7); ACT r 6510; NSW rr 11.9–11.11; NT rr 7.09–7.14; Tas rr 147, 148–153; Vic rr 7.09–7.14; WA O 10 r 9(2)–(5). 353. NSW rr 11.9–11.11; NT rr 7.08–7.09; Tas rr 147, 148–153; Vic rr 7.09–7.14. 354. WA O 10 rr 9–10. 355. FCt r 10.46; ACT r 6509; NSW r 11.6; NT r 7.03; SA r 40H; Tas r 147H; Vic r 7.03; WA O 10 r 10(3)(a). 356. ACT r 6509(1); Qld r 129(1); SA r 41(2). 357. Qld r 129(2).

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Conclusion 2.102  The statutory regimes for the interstate or international service of initiating process have expanded the extraterritorial jurisdiction of Australian courts significantly. All practical limitations on a plaintiff ’s ability to have initiating process served on a person in another state or territory have been eliminated by the Federal Court’s jurisdiction over all persons in Australia and its external territories, and by the enactment of the Service and Execution of Process Act 1992. The Trans-Tasman Proceedings Act has likewise eliminated practical limitations on the service of Australian process in New Zealand. Further, the more gradual reform of the rules of the superior courts has increased the grounds on which those courts will allow service to be made on a person outside Australia. 2.103  While, as the discussion in this chapter shows, there continues to be some variation in the rules of international jurisdiction available for the different federal, state and territory superior courts, Australia was an enthusiastic participant in the efforts of the Hague Conference on Private International Law to develop an international convention on jurisdiction, which was intended to emulate the success of the European Community’s scheme for jurisdiction and judgments. Initially, that convention was intended to have a broad scope, covering most civil and commercial matters, but due to fundamental international differences about acceptable bases of jurisdiction, the original convention failed. A more modest Convention on Choice of Court Agreements was agreed in 2005.358 This is also a ‘double convention’, allowing the automatic recognition and enforcement of any judgment made in the exercise of the convention’s jurisdiction.359 That convention was based on and inspired by the international success of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention), which has led to a significant increase in the use of international commercial arbitration. The New York Convention is described in detail in Chapter 6. It is likely that Australia will accede to the Hague Choice of Court Convention in the near future.360 Some of its 358. Convention on Choice of Court Agreements, 30 June 2005, Hague, No 37 (entered into force 1 October 2015). At the time of writing, in April 2018, this convention had been ratified by Mexico, the European Union (meaning that the Convention has entered into effect in all member state of the European Union), and Singapore. The United States, China, Ukraine and Montenegro had signed it. 359. R Garnett, ‘The Internationalisation of Australian Jurisdiction and Judgments Law’ (2004) 25 Australian Bar Review 205 at 208–25. 360. The federal parliament’s Joint Standing Committee on Treaties recommended in November 2016 that Australia should accede to this convention: Joint Standing Committee on Treaties, Parliament of Australia, Implementation Procedures for Airworthiness — USA; Convention on Choice of Courts — Accession; GATT Schedule of Concessions — Amendment; Radio Regulations — Practical Revision (Report No 166, November 2016) at [3.21]. At the time of writing in April 2018, the Attorney-General’s Department was preparing drafting instructions for the International Civil Law Bill, by which it is intended that this convention will be brought into effect in Australia. For comment on the convention and its possible effect in Australia, see R Garnett, ‘The Hague Choice of Court Convention: Magnum Opus or Much Ado About Nothing?’ (2009) 5 Journal of Private International Law 161; M Keyes, ‘Jurisdiction under the Hague Choice of Courts Convention: Its Likely Impact on Australian Practice’ (2009) 5 Journal of Private International Law 181; BA Marshall and M Keyes, ‘Australia’s Accession to the Hague Convention on Choice of Court Agreements’ (2017) 41 Melbourne University Law Review 246; A Mills, ‘The Hague Choice of Court Convention and Cross-border Commercial Dispute Resolution in Australia and the Asia-Pacific’ (2017) 18 Melbourne Journal of International Law 1.

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provisions clearly influenced the provisions relating to the effect to be given to exclusive choice of courts agreements in the Trans-Tasman Proceedings Act 2010 (Cth), as will be described in Chapter 4. 2.104  Even if a court has a prima facie ability to exercise jurisdiction — whether at common law or under the Service and Execution of Process Act, the Trans-Tasman Proceedings Act, the cross-vesting legislation or the rules of court — the person served might have a defence that requires the court to conclude that it does not have jurisdiction. The two most common limitations on the court’s jurisdiction are that the plaintiff ’s claim relates to a foreign immovable, and that the defendant proves the right to foreign state immunity. Both limitations are discussed in Chapter 3. 2.105  Given the recent expansion of extraterritorial jurisdiction, it is not surprising that over the same period there has been a related emphasis on considerations that can lead a court, in the exercise of its discretion, to decline a jurisdiction it actually has the right to exercise. Here, even if jurisdiction is established, the court might still refuse to hear the case. In multi-state cases, these considerations include the various species of forum non conveniens, lis alibi pendens, and the existence of a forum clause in a contract requiring the dispute to be determined in another court. As seen, in actions brought under the rules of court against a person outside Australia, the plaintiff must show that these considerations would not lead the court to decline jurisdiction before the court will grant leave to serve or proceed. However, there is usually still some opportunity for the defendant to argue against the exercise of jurisdiction by raising these considerations after having been served. In actions brought against a person in another state or territory, there are similar opportunities to have proceedings stayed or transferred to another court. These are discussed in Chapter 4.

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Chapter 3 Jurisdiction: Exceptions and Immunities Introduction 3.1  There are cases where a court that would have personal jurisdiction under the rules set out in Chapter 2 does not exercise it. This is either because the circumstances of the case are such that, for reasons other than those rules of personal jurisdiction, the court lacks jurisdiction over the subject matter of the case or the circumstances are such that the court has a right to exercise jurisdiction but, in the exercise of a discretionary power, declines to do so. The latter circumstances are considered in Chapter 4. The former can arise in three different circumstances: foreign immovables; foreign state immunity; and diplomatic and consular immunity.1 All three issues are discussed in this chapter.

Foreign immovables The Moçambique principle 3.2  In all states except New South Wales, and in the Australian Capital Territory, a court has no jurisdiction in certain cases involving immovable property outside Australia. The rule is ancient, but took its present shape in British South Africa Co v Companhia de Moçambique.2 There, it was established that the rule was one of substance, denying a court in England any right to hear or determine a case involving either the title to or possession of land outside England, or a question of trespass to land outside England. The Moçambique principle still encompasses both propositions. However, it has been qualified and adjusted after a century of adjudication and legislative development.3 As a result, it remains uncertain to what extent actions other than trespass to land are excluded from the court’s jurisdiction. It is also uncertain whether, or to what extent, the Moçambique principle embraces actions 1.

2. 3.

The ‘act of state’ doctrine, which focuses on the nature of governmental acts rather than, as for foreign state immunity, the identity of the defendant, and the possible non-justiciability of certain claims implicating acts of foreign states, are not considered. See M Davies, A Bell and P Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, Sydney, 2014, pp 254–60; R Garnett, ‘Foreign States in Australian Courts’ (2005) 29 Melbourne University Law Review 704 at 714–31. [1893] AC 602. For a discussion of the rule and its development, see W R Johnson, ‘The Mozambique Rule and the (Non) Jurisdiction of the Supreme Court of Western Australia over Foreign Land’ (2003) 31 University of Western Australia Law Review 266.

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concerning immovable property other than land. There seems real doubt that, in Australia, the principle applies in proceedings in a superior court when the immovable property is in another state or territory. The Moçambique principle no longer applies in New South Wales at all and has only limited operation in the Australian Capital Territory. 3.3  The Moçambique principle denies a court in the forum the power to hear or determine any case in which it would be required to determine a person’s title to land outside the forum state or a person’s right to the possession of land outside the bounds of the forum.4 It also denies a court in the forum the power to hear or determine any action for trespass to land outside the forum state even when no question of title to or possession of land outside the forum arises. These two propositions lie at the centre of the principle. It is also likely, however, that other actions that depend on questions of title, possession or trespass are excluded from the jurisdiction of the forum’s courts.5 These include an application for an injunction to restrain a trespass,6 an action for conspiracy to commit a trespass, and any action in negligence or nuisance that requires a determination of a question of title or possession.7 In Australia, the courts have been prepared to extend the principle further and have denied jurisdiction merely because the action concerned land outside the forum, even though no question of title, possession or trespass arose. Thus, in Commonwealth v  Woodhill,8 the High Court held that the Supreme Court of New South Wales  had no jurisdiction to determine a claim for compensation for a federal resumption of land in the Jervis Bay Territory, even though no question of the Federal Government’s title to or possession of the land was involved. It may, nevertheless, be that the broader reading of the principle in Woodhill is no longer favoured. 3.4  The Moçambique principle was considered in more detail again in Dagi v Broken Hill Proprietary Co Ltd (No 2).9 In this case, the plaintiffs sought damages in the Supreme Court of Victoria for negligence and nuisance. They alleged that the defendant company had caused damage to their homes and polluted their drinking water by mismanagement of waste from the Ok Tedi mine in Papua New Guinea. Byrne J strongly reiterated the core propositions of Moçambique, and held that any claim that in substance related to a question of title to, possession of, or trespass to land in Papua New Guinea, could not be heard. However, in Dagi (No 2) Byrne J did hold that jurisdiction existed to determine claims in negligence in which it was alleged that the plaintiff ’s customary use of and amenity to water was affected by the mine. The distinguishing feature was whether a question of title to or possession of land was the ‘gravamen’ of the proceedings, or whether it was merely incidental to the claim made by the plaintiff. The decision shows that the Moçambique principle still does not apply when no question of title, possession or trespass arises.10

4. 5. 6. 7. 8. 9. 10.

Inglis v Commonwealth Trading Bank (1972) 20 FLR 30. Hesperides Hotels Ltd v Muftizade [1979] AC 508 at 536. Corvisy v Corvisy [1982] 2 NSWLR 557. Hesperides Hotels Ltd v Muftizade [1979] AC 508 at 536. (1917) 23 CLR 482. [1997] 1 VR 428. See also Re Clunies-Ross; Ex parte Tottendell (1987) 72 ALR 241.

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3.6

3.5  In Australia, in the High Court decision in Potter v Broken Hill Proprietary Co Ltd,11 the Moçambique principle was applied to deny jurisdiction to hear or determine an action relating to the infringement of a patent granted in another state. One reason given by the court was that a patent is a monopoly right granted by, say, the sovereign of Ruritania and therefore cannot be moved — is ‘immovable’ — from Ruritania.12 Another reason given in Potter for forum abstention in the area of foreign intellectual property rights was the act of state doctrine; namely, that the forum courts will not adjudicate upon the acts of a foreign state within its own territory.13 The Potter decision has been relied upon, in both of the above aspects, to dismiss actions brought for breach of foreign copyright and infringement of a foreign trade mark.14 More recently, however, it has been questioned whether these intellectual property rights should be considered of the same immovable quality as a patent and, even more emphatically, whether the bar on adjudication of foreign intellectual property rights should be limited to cases in which the validity of registered rights (patents and trade marks) is involved as opposed to where infringement of such rights or any aspect of non-registered rights is present.15 The High Court has indicated that it has reserved ‘for further consideration’ the standing of the Potter decision.16 3.6  At least so far as the jurisdiction of the state and territory Supreme Courts is concerned, it appears likely that the Moçambique principle no longer applies where the land or immovable is situate in another state or territory. Under the cross-vesting scheme, the Supreme Court of any state or territory has the jurisdiction of the Supreme Court of any other state or territory. Hence, the jurisdiction that is exercisable by the Supreme Court of Tasmania in questions of title to land in Tasmania is also invested in the Supreme Court of Western Australia under s 4(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Tas). The latter court should therefore be able to determine a case concerning title to, possession of, or trespass to land in another state or territory, at least in a matter arising in state jurisdiction. However, where the matter arises in federal jurisdiction (such as an action between residents of different states) there is no ‘state matter’ capable of being cross-vested in another state or territory court under the Act.17 In such a case, s  80 of the Judiciary Act  1903 (Cth) applies the Moçambique rule as part of the common law of Australia in all Australian jurisdictions except New South Wales and the Australian Capital Territory.18 Important to this position is the finding in Moçambique that the rule is one of subject

11. 12. 13. 14. 15.

16. 17. 18.

(1906) 3 CLR 479. At 494 (Griffith CJ). At 504–5 (Barton J) and 510 (O’Connor J). Tyburn Productions Ltd v Conan Doyle [1991] Ch 75. In support of this more limited view, see Lucasfilm Ltd v Ainsworth [2012] 1 AC 208; KK Sony Computer Entertainment v Van Veen (2006) 71 IPR 179 (NZHC) (in both cases, breach of foreign copyright admissible); Stewart v  Franmara Inc (No 2) [2012] NZHC 1771 (breach of foreign patent admissible); see  generally R Garnett, ‘Enhanced Enforcement of IP Rights in Transnational Cases in Australia’ (2017) 27 Australian Intellectual Property Journal 114. Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 520; [2002] HCA 10; see also the comments in Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 at [49]. Uhlmann v Harris (No 2) [2018] QSC 28 at [10]–[11]. At [33], [38].

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matter and not personal jurisdiction,19 for, while there are doubts as to whether the personal jurisdiction of the Supreme Courts has been cross-vested, there is no doubt that the subject matter jurisdiction of the Supreme Courts has been.20 Note, however, that even if the idea that Moçambique has been abrogated in Supreme Court jurisdictions for claims relating to interstate immovables is accepted, the Moçambique principle would continue to deny the inferior courts of the states and territories (except the Australian Capital Territory and New South Wales) any jurisdiction in cases concerning title to, possession of, or trespass to land in another state or territory.

Australian Capital Territory 3.7  The Australian Capital Territory has introduced a partial modification of the Moçambique principle.21 It allows an Australian Capital Territory court to deal with cases involving ‘land or other immovable property’ outside the territory, although the Act does not empower a court to judge ‘upon title to, or right to the possession of ’ land or other immovables outside the territory.22 The principles of forum non conveniens are still applicable as discretionary limits on the exercise of jurisdiction in these cases.23 This brings the Australian Capital Territory position close to that in the United Kingdom, where there is a similar partial modification of the Moçambique principle.24 The legislation seems to bring situations like that of Commonwealth v  Woodhill25 into the jurisdiction of the territory’s courts. If, however, even in actions for trespass or conspiracy to commit a trespass, title to or possession of land outside the territory had to be considered, the court could not deal with the case. Nevertheless, it should be noted that the Act merely provides that a court is not to be taken to have jurisdiction in questions of title or possession of land or immovables outside the territory by reason of the Act.26 If, for instance, the territory’s Supreme Court can hear questions concerning the title to or possession of land elsewhere in Australia under the cross-vesting scheme,27 or the Moçambique principle were to be abrogated by common law adjudication,28 the legislation would not prevent the territory Supreme Court from exercising the larger jurisdiction it would therefore have gained.

New South Wales 3.8  The Moçambique principle was abrogated in New South Wales in 1989.29 In that state, a court will only refuse to hear and determine an action concerning land or immovables outside New South Wales  if it considers that it is not an appropriate court to hear the 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29.

[1893] AC 602 at 629. See 2.28–2.36. Civil Law (Wrongs) Act 2002 (ACT) s 220. Civil Law (Wrongs) Act 2002 (ACT) s 220(1)–(2). Civil Law (Wrongs) Act 2002 (ACT) s 220(3); see 4.3 and 4.32–4.56. Civil Jurisdiction and Judgments Act 1982 (UK) s 30(1). (1917) 23 CLR 482; see 3.3. Civil Law (Wrongs) Act 2002 (ACT) s 220(2). See 3.6. See 3.11. Jurisdiction of Courts (Foreign Land) Act 1989 (NSW) s 3.

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proceedings. Such an outcome was reached in Du Bray v McIlwraith, where the court refused to make an order for possession of foreign land for the reason that such an order would not be enforced in the foreign country. 30

31

Personal actions relating to immovables 3.9  There are a number of actions in which title to or possession of land outside the forum is relevant, but which fall outside the Moçambique principle and can be heard by a court of appropriate jurisdiction in the forum.32 Among these are actions arising out of a contract dealing with an immovable outside the forum;33 actions in quasi-contract that concern an immovable outside the forum;34 actions for specific performance of a contract dealing with an immovable outside the forum;35 actions alleging the existence of a trust in respect of an immovable outside the forum;36 actions alleging breach of a fiduciary obligation in the management of an immovable outside the forum;37 and actions alleging fraud in the management of an immovable outside the forum.38 The common feature of all these actions is that the plaintiff is attempting to enforce a personal legal or equitable obligation on the part of the defendant. Even though a question of title or possession might be incidental to the action, it is not its predominant feature. A case dealing with this issue was Nudd v Taylor.39 In this case, the defendant had filed a counterclaim that asserted her right to a share in the proceeds of sale of a number of properties in California. The success of the counterclaim depended on demonstrating a beneficial interest in the properties, but doing so meant the court would have to determine a question concerning a foreign immovable. The Supreme Court of Queensland considered the possibility that the defendant could classify her claim as the enforcement of an equitable obligation, and therefore as an exception to the Moçambique principle. However, a further complication was that the plaintiff was not within the court’s jurisdiction. It was held that, in the circumstances, the counterclaim raised an equitable obligation which therefore did not deprive the court of jurisdiction and that, as the counterclaim arose in a broad sense from the initial claim filed by the plaintiff, the plaintiff had submitted himself to the jurisdiction of the court. The court was willing to take a broad view of the exceptions to the Moçambique principle in order to do justice between the parties.40 In Burt v Yiannakis,41 Asher J of the High Court of New Zealand recognised the existence of a personal exception to the Moçambique rule, but refused to apply the exception to a claim for a constructive trust based on contributions to 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41.

Jurisdiction of Courts (Foreign Land) Act 1989 (NSW) s 4. [2009] NSWSC 888. Petrotimor Companhia de Petroleos SARL v Commonwealth (2003) 197 ALR 461 at 472; [2003] FCAFC 3. British South Africa Co v De Beers Consolidated Mines Ltd [1910] 2 Ch 502. Nissan v Attorney-General [1970] AC 179. Penn v Lord Baltimore (1750) 1 Ves Sen 444; 27 ER 1132. Richard West Partners (Inverness) Ltd v Dick (1969) 2 Ch 424; Nudd v Taylor [2000] QSC 344; Schumacher v Summergrove Estates Ltd [2012] NZHC 3177 (reversed on different grounds: [2013] NZHC 1387). Dawson v Perpetual Trustee Co Ltd (1953) 89 CLR 138. Lord Cranstown v Johnstown (1796) 3 Ves 170; 30 ER 952; Singh v Singh (2009) 253 ALR 575; [2009] WASCA 53. [2000] QSC 344. At [28]. [2015] NZHC 1174.

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foreign property. Such an action was ‘proprietary’ in nature and so distinct from a claim for breach of fiduciary duty or specific performance of a contract. 3.10  Questions of title or possession do arise directly in applications for a grant of probate or letters of administration. The courts have, nevertheless, been prepared to exercise jurisdiction in these cases, even where the estate includes immovable property outside the forum.42 The reason is that the Moçambique principle originated in the common law courts and was a common law rule. Questions of probate and administration are matters of ecclesiastical and equitable jurisdiction, and the rule therefore was inapplicable when these jurisdictions were being exercised.

Reform 3.11  The simple fact that the Moçambique principle was, and remains, applicable only for common law claims, and was never thought worth replicating in equitable and ecclesiastical jurisdictions, itself suggests that it might be of limited utility. There is little scholarly support for maintaining the principle. In this vein, Johnson has argued for its abrogation, principally relying on the rule’s origin in limited English rules for deciding the venue of litigation dealing with land claims and the imprecision of exceptions to the principle.43 Certainly, any concerns about the appropriateness of courts hearing claims relating to foreign immovables can now be resolved by principles of forum non conveniens. In Regie Nationale des Usines Renault SA v  Zhang,44 Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ said that the continuing authority of the Moçambique principle would be reserved for further consideration ‘in an appropriate case’.45 Renault was an appeal in an application to set aside service on the ground of forum non conveniens,46 and involved a personal injuries claim for a wrong alleged to have occurred in France.47 There was no question of immovable property even remotely connected to the issues of the case, which raises the question of why Moçambique was even mentioned. It does suggest, though, that these judges are contemplating whether the common law of Australia has reached the point where the Moçambique principle can be dispensed with.

Foreign state immunity 3.12  There is a longstanding immunity from jurisdiction for foreign sovereigns or states derived from the principles of public international law.48 In Australian law the topic is now governed exclusively by the Foreign States Immunities Act 1985 (Cth), which commenced on 1 April 1986. 42. 43. 44. 45. 46. 47. 48.

Re Duke of Wellington [1946] Ch 118; Re Constantinou [2013] 2 Qd R 219; [2012] QSC 332. Johnson, above n 3, at 291–2. (2002) 210 CLR 491; [2002] HCA 10. At 520. Note, however, that in Singh v Singh (2009) 253 ALR 575; [2009] WASCA 53 at [21] it was suggested that until the High Court reviews the Mocambique rule it is ‘advisable to treat it as good law’. See 4.3 and 4.32–4.56. See 18.2. For an argument that foreign state immunity should be abolished as a separate doctrine and actions against foreign states resolved solely by principles of private international law, see R Garnett, ‘Should Foreign State Immunity Be Abolished?’ (1999) 20 Australian Yearbook of International Law 175.

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3.15

3.13  Like any question of jurisdiction, the existence or otherwise of foreign state immunity must be determined before a court can consider the merits of the proceedings.49 It is not essential, however, that the defendant actually plead the immunity before the court is required to decide this preliminary issue. If a court becomes aware that the defendant is entitled to foreign state immunity, it must ensure the immunity is recognised and given effect.50 However, just how immunity is given effect depends on the point reached in the proceedings. Thus, the court can set aside service at any time before judgment or, if it becomes aware of the immunity after rendering judgment, it can set the judgment aside.51 3.14  The general rule is that a foreign state is immune from the jurisdiction of any court in Australia.52 The rule is subject to some significant exceptions. This means that the Foreign States Immunities Act effectively states a theory of restrictive state immunity; that is, there are some actions against a foreign state that are not subject to the immunity. The theory of restrictive state immunity was effectively the position reached by the common law in the 1980s.53 However, the statement of the general rule in the Act means there are two important questions to determine before foreign state immunity can be established: (1) what is a ‘foreign state’ for the purposes of the Act; and (2) what are the exceptions to the general rule of immunity?

Foreign states 3.15  The term ‘foreign state’ is defined in s 3 of the Act as including any independent sovereign state in or outside the Commonwealth of Nations. To this are added places attached to those states that have a separate status, as well as the constituent provinces, states, territories or other subdivisions of foreign federal or composite states. The states and territories of Australia are not included. The European Union is also probably not a foreign state for the purposes of the Act.54 In addition, the head of any such foreign state (including a governor-general or governor) in the exercise of their public functions and the executive government of a foreign state are deemed to be a foreign state. The latter will also embrace any department of a foreign government. Individuals (other than a head of state) may also be entitled to foreign state immunity if considered to be part of the foreign state, even if no longer serving in the government.55 If the Minister for Foreign Affairs certifies that an entity or person is a foreign state for the purpose of the Foreign States Immunities Act, that certificate is conclusive of the status.56 However, if there is no certificate or merely an ambiguous one, it is still possible to prove that an entity or person is included in the definition of ‘foreign state’ by the tendering of ordinary evidence.

49. 50. 51. 52. 53. 54. 55. 56.

JH Rayner (Mincing Lane) Ltd v Dept of Trade and Industry [1989] Ch 72 at 193–4. Zhang v Zemin (2010) 79 NSWLR 513; [2010] NSWCA 255 at [31], [48]. Foreign States Immunities Act 1985 (Cth) s 38. For a general discussion of the Act, see PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240; [2012] HCA 33. Foreign States Immunities Act 1985 (Cth) s 9. Playa Larga v I Congreso del Partido [1983] 1 AC 244. JH Rayner (Mincing Lane) Ltd v Dept of Trade and Industry [1989] Ch 72. Zhang v Zemin (2010) 79 NSWLR 513; [2010] NSWCA 255 at [65]–[71]. Foreign States Immunities Act 1985 (Cth) s 40.

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3.16  The Foreign States Immunities Act also refers to a body called a ‘separate entity’.57 This is a person or corporation that is an agency or instrumentality of a foreign state, though not a part of its executive government. In determining whether a person or body is an agency or instrumentality of a foreign state it is necessary to consider whether the entity is carrying out the foreign state’s functions or purposes. While ownership and control of the entity by the foreign state will be important factors in resolving the question, neither is determinative.58 For example, a government-owned trading corporation,59 a central bank60 or a state-owned airline61 can be separate entities eligible for immunity. As will be seen, however, the scope of immunity for a separate entity is narrower than it is for a foreign state.62

Exceptions to immunity 3.17  There are a number of express exceptions to the general immunity from jurisdiction enjoyed by a foreign state or separate entity. The first is submission, which is established by express agreement to submit to the jurisdiction of the court in Australia.63 It can also be established by conduct. The conduct sufficient to constitute submission includes the initiation of related proceedings, the taking of any step in the proceedings that is not an assertion of immunity, and an application for costs or an assertion of an interest in property.64 For example, filing a statement of defence to the merits would constitute a submission to jurisdiction or waiver of immunity, but filing a joint consent memorandum seeking an extension of time for filing a defence would not.65 These rules are merely specific examples of the general principles by which jurisdiction is established by submission.66 There is provision for a foreign state or separate entity to establish immunity after submission by conduct has occurred if this took place in ignorance of the immunity.67 3.18  Immunity is not available for proceedings that concern commercial transactions.68 These include any commercial, trading, business, professional or industrial activity.69 In Victoria Leasing Aircraft Ltd v United States of America,70 the Victorian Court of Appeal held that, in determining whether the matter in dispute concerned a commercial transaction, it was necessary to consider — in Buchanan JA’s words — ‘the transaction viewed as a 57. Foreign States Immunities Act 1985 (Cth) s 3(1). 58. PT Garuda Indonesia Ltd v  Australian Competition and Consumer Commission (2011) 192 FCR 393; [2011] FCAFC 52 at [42]–[48] (Lander and Greenwood JJ); [127]–[128] (Rares J). 59. Czernikow Ltd v Rolimpex [1979] AC 351; Kuwait Airways Corp v Iraqi Airways Co [1995] 3 All ER 694. 60. Trendtex Trading Corp v Central Bank of Nigeria [1977] QB 529. 61. PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240; [2012] HCA 33. 62. See 3.21. 63. Foreign States Immunities Act 1985 (Cth) s 10(2)–(3). 64. Foreign States Immunities Act 1985 (Cth) s 10(6)–(8). 65. X v Attorney-General of New Zealand [2017] 3 NZLR 115 at [24]. 66. See 2.13–2.16. 67. Foreign States Immunities Act 1985 (Cth) s 10(9)(a). 68. Foreign States Immunities Act 1985 (Cth) s 11(1). 69. Foreign States Immunities Act 1985 (Cth) s 11(3). 70. (2005) 218 ALR 640; [2005] VSCA 76.

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3.19

whole’. The transaction in question in Victoria Leasing was an alleged agreement between the Governments of Nauru and the United States, by which Nauru agreed to reform its laws relating to money laundering, passports, and the transfer of money for terrorist organisations, if the United States provided money to Nauru to assist in meeting its loan repayments and to ensure that a major corporate lender gave it more time to repay its borrowings. Although the alleged agreement between the governments therefore involved a promise to influence a creditor, overall it ‘concerned governmental functions’ such as ‘diplomatic and foreign relations, national security, intelligence, terrorism and the reform of banking laws and passport abuse’.72 The alleged agreement therefore did not amount to a commercial transaction, and was within the foreign state immunity that the United States could validly claim. It has been argued that the approach taken in Victoria Leasing contrasts with the House of Lords’ approach in Kuwait Airways Corp v Iraqi Airways Co,73 where the majority focused on discrete aspects of the ‘transaction’ to include some within the immunity but to exclude others.74 The ‘transaction’ in this case was the seizure by the Iraqi Government — in the course of the Gulf War — of commercial airliners owned by Kuwait Airways, and then the vesting by an Iraqi decree of the aircraft in Iraqi Airways. Lord Goff, with whom Lords Jauncey and Nicholls agreed,75 held that the acts of seizure and removal of the aircraft were governmental acts protected by foreign state immunity. However, the acts of retention and use by Iraqi Airways after receiving the aircraft were commercial acts that could be the subject of a claim in conversion against the company.76 Lords Mustill and Slynn of Hadley dissented on this point and believed that the events as a whole had to be classified. Their Lordships would have given foreign state immunity for the whole claim.77 Garnett points out that the dissenting speeches in Kuwait Airways are more compatible with the decision in Victoria Leasing,78 and until the High Court of Australia says differently, Victoria Leasing must be considered as representing the law in Australia. Accordingly, it recognises a broader reading of foreign state immunity. 71

3.19  Another case in which immunity was imposed involving Nauru was Bannon v Nauru Phosphate Royalties Trust (No 1).79 In Bannon, the claimant sued the Trust for breach of his employment contract and the Trust counterclaimed for breach of fiduciary duty. The claimant’s defence to the counterclaim was that under Nauruan legislation80 he  had no personal liability for any acts performed within his powers and duties as Secretary of the Trust and was also entitled to be indemnified by the Nauruan Government for any liability incurred. A third party notice seeking indemnification was filed against Nauru but was dismissed on the ground of foreign state immunity. The court found, with little reasoning,

71. 72. 73. 74. 75. 76. 77. 78. 79. 80.

At 645. At 646. [1995] 3 All ER 694. For other aspects of the case, see 8.59 and 8.65–8.67. See Garnett, above n 1, at 710. [1995] 3 All ER 694 at 717, 720. At 710–11. At 719, 722. See Garnett, above n 1, at 711. [2016] VSC 425. Nauru Phosphate Royalties Trust Act 1968 s 32A.

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that the indemnity provision involved political and governmental activity rather than commercial acts. 3.20  In PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission81 the commission brought an action for a civil penalty against a foreign state-owned airline in respect of alleged anti-competitive arrangements and understandings arising from the use of surcharges on commercial freight services in Australia. The High Court held that the proceedings involved a commercial transaction even though they did not concern the enforcement of private law rights under any freight contract. The arrangements and understandings that Garuda allegedly entered into were dealings of a commercial, trading and business character. The court also found that for the commercial transaction exception to apply, the proceeding instituted against the foreign state need not be brought by a party to the transaction in question. 3.21  Expressly mentioned in the Foreign States Immunities Act as commercial transactions are: (1) a contract for the supply of goods or services; (2) an agreement for a loan or some other transaction for or in respect of the provision of finance; and (3) a guarantee or indemnity in respect of a financial obligation.82 The alleged agreement in Victoria Leasing Aircraft Ltd v United States of America,83 discussed above, did not qualify as a commercial transaction as it amounted to a promise either to influence a creditor to give more time for the repayment of a loan or to provide money to make those loan repayments. The definition did not cover ‘a promise to prevent a creditor enforcing rights under a security’.84 If, however, the transaction is a commercial transaction within the meaning of the Act, foreign state immunity is still available when the parties to the proceeding are governments or the parties agree to immunity. The first exception is not available to a separate entity that would, in this case, be denied immunity.85 Foreign state immunity is also still available if the transaction is a payment in respect of a grant, scholarship, pension or something of the same kind.86 In Australian Federation of Islamic Councils Inc v Westpac Banking Corp,87 a gift payment made on behalf of a foreign state to assist Islamic schools was held to be within the scope of the immunity. By contrast, an agreement by which a foreign government (Saudi Arabia) promised the Australian International Islamic College Board to meet the costs of educating the children of Saudi scholarship recipients studying at the college was held to be a commercial transaction and not a payment in respect of a scholarship.88 The court relied on the report of the Australian Law Reform Commission (Foreign State Immunity, Report No 24) upon which the Act was based. According to the report, ‘the object of the scholarship exception was to avoid litigation between foreign states conferring benefits and the recipients of those benefits. It was not concerned with commercial arrangements 81. 82. 83. 84. 85. 86. 87. 88.

(2012) 247 CLR 240; [2012] HCA 33. Foreign States Immunities Act 1985 (Cth) s 11(3). (2005) 218 ALR 640; [2005] VSCA 76; see also 3.18. At 645. Foreign States Immunities Act 1985 (Cth) s 22. Foreign States Immunities Act 1985 (Cth) s 11(2)(b). (1988) 17 NSWLR 623. Australian International Islamic College Board Inc v  Kingdom of Saudi Arabia (2013) 298 ALR 655; [2013] QCA 129.

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between foreign states and those contracted to provide the benefits in question’. For all other proceedings concerning commercial transactions, there is no immunity.90 89

3.22  Recently, the High Court of Australia in Firebird Global Master Fund II Ltd v Republic of Nauru91 had to consider an action to register a Japanese judgment in Australia under s 9 of the Foreign Judgments Act 1991 (Cth) against a foreign state, Nauru. The plaintiff judgment creditor issued a summons to register the judgment, which was not served on Nauru, and judgment was entered against the defendant. The court first rejected Firebird’s argument that an application to register a foreign judgment was not a ‘proceeding’ within the general immunity provision in s 9 of the Foreign States Immunities Act 1985 (Cth). The court then found Nauru to be not immune from the jurisdiction for the purposes of registering the Japanese judgment on the basis that such a proceeding ‘concerned’ a commercial transaction under the exception in s  11 of the 1985 Act. The commercial element was established by showing that the underlying transaction upon which the judgment was based was ‘commercial’. The court considered it desirable to take a broad approach to the commercial transactions exception. As discussed below,92 however, the court ultimately found Nauru to be immune from execution of the judgment because the property against which execution was sought was not commercial. 3.23  There is also no immunity for actions relating to a contract of employment where the contract is made in Australia or to be performed in Australia.93 Immunity is, however, restored where the employee is a national of the foreign state but not a permanent resident of Australia at the time that the contract is made.94 Immunity is also reimposed where the employee is: (a) a member of the diplomatic staff of a mission as defined in Art 1(d) of the Vienna Convention on Diplomatic Relations (1961) (VCDR) (that is, a member of staff having diplomatic rank); or (b) a ‘consular officer’ as defined in Art 1(d) of the Vienna Convention on Consular Relations (1963) (VCCR) (that is, a member of staff having consular rank).95 Immunity also applies where: (i) the employee is a member of the administrative and technical staff of a mission as defined in Art 1(f) of the VCDR; or (ii) a ‘consular employee’ as defined in Art 1(e) of the VCCR unless the member or employee was, at the time the contract was made, a permanent resident of Australia.96 3.24  There is no foreign state immunity for actions relating to any personal injury or damage to property caused by an act or omission in Australia.97 3.25  Immunity is also denied for a large range of matters concerning property. These include any proceeding in respect of a foreign state’s or separate entity’s ownership, 89. 90. 91. 92. 93. 94. 95. 96. 97.

At [11]. Cf Holland v Lampen-Wolfe [2000] 3 All ER 833. (2015) 258 CLR 31. See 3.27. Foreign States Immunities Act 1985 (Cth) s 12(1); see generally R Garnett, ‘The Rights of Diplomatic and Consular Employees in Australia’ (2018) 31 Australian Journal of Labour Law 1. Foreign States Immunities Act 1985 (Cth) s 12(3). Foreign States Immunities Act 1985 (Cth) s 12(5). Foreign States Immunities Act 1985 (Cth) s 12(6). Foreign States Immunities Act 1985 (Cth) s 13.

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possession or use of immovable property in Australia; copyright, patents or trade marks used or imported into Australia for the purpose of a commercial transaction; an interest in a trust; a gift; or a disposition of property under a will.98 3.26  By contrast, it has recently been held by courts in a number of common law countries, including Australia, that in the absence of an express statutory exception to immunity (such as those mentioned above), foreign states enjoy immunity for acts of torture. In Zhang v  Zemin,99 the New South Wales  Court of Appeal followed a decision of the House of Lords100 to the effect that there are no ‘implied’ exceptions to foreign state immunity under the Act even where the defendant’s impugned conduct, as in the case of torture, would be in violation of principles of public international law.101 Furthermore, a foreign state does not submit to the jurisdiction of Australian courts (and consequently waive immunity) by becoming a State Party to the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. While Art 14(1) of the convention provides that a State Party ‘shall ensure in its legal system that the victim of an act of torture has an enforceable right to fair and adequate compensation’, such a provision does not create a universal civil jurisdiction allowing a victim to sue a foreign state in the domestic courts of any State Party.102 Immunity was also upheld in an action against a former Prime Minister for abuse of power, specifically, inducing breaches of duty by other state officials resulting in torts being committed against the claimant.103

Immunity from execution 3.27  Foreign states also enjoy immunity from execution of judgments104 although such immunity does not extend to the commercial property of the foreign state, which is defined to include ‘property other than diplomatic or military property that is in use by the foreign state concerned substantially for commercial purposes’.105 If funds are to be used for the purposes of government administration, performance of a government’s civic duties and functions to its citizens or for the advancement of the community, the fact that the object is achieved by entering into commercial transactions does not mean that the funds are used for commercial purposes.106 Where property is primarily used for the processing of visa and passport applications for a foreign state, by an agent of the state, it is not commercial.107 All property of separate entities, by contrast, is liable to execution.108

98. 99. 100. 101. 102. 103. 104. 105. 106. 107. 108.

Foreign States Immunities Act 1985 (Cth) ss 14(1)–(2), 15. (2010) 79 NSWLR 513; [2010] NSWCA 255. Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270. See  also Kazemi Estate v  Islamic Republic of Iran [2014] 3 SCR 176 and X v  Attorney-General of New Zealand [2017] 3 NZLR 115. Li v Zhou (2014) 310 ALR 66; [2014] NSWCA 176. Al-Attiya v Bin-Jassim Bin-Jaber Al Thani [2016] EWHC 212 (QB). Foreign States Immunities Act 1985 (Cth) s 30. Foreign States Immunities Act 1985 (Cth) s 32(3). Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31. LR Avionics Technologies Ltd v The Federal Republic of Nigeria [2016] EWHC 8 (QB) at [38]. Foreign States Immunities Act 1985 (Cth) s 35.

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3.30

Diplomatic and consular immunity 3.28  Immunity from the jurisdiction of a court in Australia is recognised for diplomatic and consular officers and the premises of diplomatic missions and consulates. For diplomatic officers and missions, the Diplomatic Privileges and Immunities Act 1967 (Cth) implements the Vienna Convention on Diplomatic Relations 1961. For consular officers and missions, the Consular Privileges and Immunities Act 1972 (Cth) implements the Vienna Convention on Consular Relations 1963. The immunity is available to representatives of Commonwealth and foreign countries, although there is potential for consular immunity to be broader for representatives of declared Commonwealth countries.109 As is the case for foreign state immunity, where it becomes evident to a court that a defendant is entitled to diplomatic or consular immunity, the court should stay the proceeding.110

Diplomatic immunity 3.29  There are four groups of persons who can properly make a claim of diplomatic immunity. The first group is ‘diplomatic agents’, and includes an ambassador or high commissioner, diplomatic staff and the members of their families.111 The second is the administrative and technical staff and the members of their families.112 The third group is the service staff, such as butlers and cooks.113 The fourth group comprises private servants of diplomatic agents. A certificate from the Minister for Foreign Affairs is evidence that a person belongs to one of these classes, but probably does not amount to conclusive proof.114 3.30  The scope of diplomatic immunity depends on the group to which the person claiming the immunity belongs. A ‘diplomatic agent’ is immune from jurisdiction in any civil proceeding unless it relates to:115 • the title to, or possession of, immovable property in Australia; • the person’s private involvement as personal representative or beneficiary in a question of succession to property on death; or • the agent’s professional or commercial actions that do not relate to official functions.116 If the diplomatic agent is a national or permanent resident of Australia, the immunity only protects official acts performed in the course of diplomatic functions.117 Administrative and technical staff have a similar immunity to diplomatic agents, but it is limited to acts

109. Consular Privileges and Immunities Act 1972 (Cth) s 9. No Commonwealth country has been the object of such a declaration. 110. Australian Federation of Islamic Councils Inc v Westpac Banking Corp (1988) 17 NSWLR 623. 111. Convention on Diplomatic Relations 1961 Art 37(1). 112. Convention on Diplomatic Relations 1961 Art 37(2). 113. Convention on Diplomatic Relations 1961 Art 37(3). 114. Diplomatic Privileges and Immunities Act 1967 (Cth) s 14; cf Duff v R (1979) 28 ALR 663 at 695. 115. Convention on Diplomatic Relations 1961 Art 31(1). 116. A claim by a domestic servant employed by the diplomat where human rights abuses have occurred falls within this exception: Reyes v Al-Malki [2017] UKSC 61 (Lords Wilson and Clarke, Lady Hale). See Garnett n 93 above. 117. Convention on Diplomatic Relations 1961 Art 38(1).

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done in the course of their duties.118 If administrative or technical staff are nationals or permanent residents of Australia, this immunity does not extend to members of their families.119 Service staff have immunity for acts done in the course of their duties.120 Private servants who are nationals or ordinary residents of Australia are entitled to immunity in respect of acts done in the course of their duties.121

Consular immunity 3.31  Two groups of persons are entitled to consular immunity: consular officers (including honorary consuls); and administrative and technical staff. Again, the Minister for Foreign Affairs can certify that a person belongs to one of these groups. This constitutes evidence that the person belongs to that group, but probably, again, not conclusive proof.122 3.32  Consular officers are immune from the jurisdiction of a court in Australia for acts done in the course of consular functions.123 They also cannot be punished for refusing to give evidence in any legal proceeding in Australia.124 However, consular officers do not have immunity where the proceedings: (1) arise out of a contract the officer did not enter as agent of the country represented; or (2) brought by a third party for an accident in Australia caused by a vehicle, vessel or aircraft.125 Administrative and technical staff have a similar immunity. However, so long as it does not relate to their official functions or correspondence, they can be punished for refusing to give evidence in other proceedings in Australia.

Duration and waiver 3.33  Diplomatic and consular immunity persists in respect of any acts undertaken in the course of official duties. These can never be the subject of proceedings in a court in Australia.126 For acts done outside the course of official duties but within the scope of the immunity, the immunity lasts while the person holds the diplomatic or consular position in Australia. So, proceedings brought against a person may have to be stayed if, and when, that person assumes a diplomatic or consular position.127 Equally, proceedings against a person for such acts may be brought once that person leaves Australia, or within a reasonable period after that person’s departure.128 3.34  Diplomatic or consular immunity can be waived either by words or by conduct. The country represented can waive immunity for any of its diplomatic or consular officers, and

118. 119. 120. 121. 122. 123. 124. 125. 126. 127. 128.

Convention on Diplomatic Relations 1961 Art 37(2). Diplomatic Privileges and Immunities Act 1967 (Cth) s 11(a). Convention on Diplomatic Relations 1961 Art 37(3). Diplomatic Privileges and Immunities Act 1967 (Cth) s 11(b). Consular Privileges and Immunities Act 1972 (Cth) s 12; Duff v R (1980) 28 ALR 663 at 695. Convention on Consular Relations 1963 Art 43. Convention on Consular Relations 1963 Art 44. Convention on Consular Relations 1963 Art 43. Convention on Diplomatic Relations 1961 Art 39(2); Convention on Consular Relations 1963 Art 55(3). Ghosh v D’Rozario [1963] 1 QB 106. Convention on Diplomatic Relations 1961 Art 39(2); Convention on Consular Relations 1963 Art 53(4).

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this can be given by the express words of the ambassador or high commissioner. No other person can waive this immunity, even if that person is the defendant in the proceedings.130 Again, where a diplomat or consular officer initiates proceedings he or she may not rely on the immunity if required to defend any related counterclaim.131 Waiver of immunity in respect of civil or administrative proceedings shall not be held to be a waiver of immunity in respect of execution of any judgment for which a separate waiver will be necessary.132 129

129. Convention on Diplomatic Relations 1961 Art 32(1)–(2); Diplomatic Privileges and Immunities Act 1967 (Cth) s 7(2); Convention on Consular Relations 1963 Art 45(1)–(2); Consular Privileges and Immunities Act 1972 (Cth) s 9(2). 130. R v Madan [1961] 2 QB 1. 131. Convention on Diplomatic Relations 1961 Art 32(3); Convention on Consular Relations 1963 Art 45(3). 132. Convention on Diplomatic Relations 1961 Art 32(4); Convention on Consular Relations 1963 Art 45(4).

89

Chapter 4 Restraints on Proceedings Introduction 4.1 In Chapter  3, the circumstances in which a court (which would have personal jurisdiction) might lack subject-matter jurisdiction were considered. This chapter considers other limitations on the jurisdiction of courts to deal with litigation. Here, a court clearly is competent to hear the case both in terms of personal and subject-matter jurisdiction. In international and interstate cases, there are almost always at least two courts that are competent to hear the case. Often the parties disagree as to which of those courts should do so. This chapter looks at the circumstances in which, usually by the exercise of a discretion invested in the judge, it is thought appropriate that one court or another not hear the case, even though that court’s competence is accepted. This can occur in two distinct situations. The first concerns cases in which an Australian forum restrains the hearing of a case before the forum court itself. The second deals with the rarer case in which a court in Australia restrains litigants from commencing or continuing with litigation before a foreign court. In international and interstate cases, the parties almost always can litigate in the courts of more than one country. As a result, increasingly, much litigation has simply been undertaken to determine finally where the parties should litigate the merits of the case, and the courts have developed principles which aim to answer this question and to answer it quickly. 4.2  The principles by which proceedings in Australia can be restrained differ in source and emphasis, depending on whether the proceedings involve international or interstate issues. Therefore, international proceedings and interstate proceedings are considered separately below.

International proceedings 4.3  In international proceedings, three considerations affect the court’s decision whether to stay proceedings which have been brought before it. The first is where there is an applicable mandatory law of the forum, which directs the Australian court to retain or decline jurisdiction. The second is whether the parties have contractually agreed to litigate exclusively in a particular court. Finally, if there is no effective mandatory rule and no effective exclusive jurisdiction agreement, the court may decline to exercise jurisdiction on the basis that it is a clearly inappropriate forum, by reference to the principle of forum non conveniens.

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Mandatory rules 4.4  A mandatory rule is one which is intended to be applied, notwithstanding any contrary agreement between the parties. The court lacks any discretion to stay proceedings if there is a forum mandatory rule directing it to stay proceedings, or not to stay proceedings. Most mandatory laws emanate from statute, although it is also possible for a mandatory rule to be derived from the unwritten law. Most mandatory rules are substantive provisions, and their effect and operation in domestic litigation is relatively well understood. Their effect in international litigation is less clear, particularly at the jurisdictional stage. 4.5  The issue for consideration in this section is what effect a mandatory rule might have on the court’s decision whether to stay proceedings, if the defendant challenged the court’s jurisdiction in an international case. The impact of a substantive mandatory rule in resolving the substantive issue in dispute — for example, in an international contract case — is discussed further in Chapters 12, 17 and 18. Usually the question is the extent to which the parties’ contractual agreement undermines the effectiveness of mandatory rules. The courts of the place where the mandatory rule was enacted are less likely to uphold contractual agreements which would have the effect of undermining the application of those mandatory rules, than are the courts of other legal systems. The availability, in most international disputes, of a number of different courts therefore undermines the effectiveness of mandatory rules, and the outcome of a case in which a mandatory rule might be applied can therefore depend on which court takes jurisdiction. What is most often material in ensuring an effective resolution to the particular dispute is determining where the defendant’s assets are located, against which any eventual judgment might be enforced. 4.6  There is a small number of express mandatory rules in Australian legislation relevant to disputes about forum. These rules may direct an Australian court to retain jurisdiction, as in s 11(2) of the Carriage of Goods by Sea Act 1991 (Cth), which provides for the exclusive jurisdiction of the Australian courts in contracts for the international carriage of goods by sea, from any Australian port. This provision states that an agreement between the parties which purports to deprive an Australian court of jurisdiction in such cases is ineffective. In substance, this directs that in Australian litigation, the court must not decline to exercise its jurisdiction. 4.7 In Chapter  2, the effect of the Trans-Tasman Proceedings Act  2010 (Cth) was described, in relation to the personal jurisdiction of Australian courts in litigation involving New Zealand. The Act also contains provisions relating to jurisdictional challenges in proceedings where New Zealand  is the alternative forum. Those provisions apply with exclusive effect, so that any application for a stay of Australian proceedings on forum grounds, where New Zealand is the alternative forum, must be dealt with under the Act.1 The provisions of the Act applicable if the parties have concluded an exclusive choice of court

1.

See  Trans-Tasman Proceedings Act  2010 (Cth) s  21(1). The Act does not deal with, or prevent, staying proceedings on grounds other than forum challenges: s 21(2).

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agreement are based in part on the Hague Convention on Choice of Court Agreements, and therefore only apply to commercial contracts.2 4.8  The Trans-Tasman Proceedings Act  2010 (Cth) provides that where there is an exclusive choice of court agreement3 in favour of an Australian court, an Australian court must not stay proceedings in favour of litigation in New Zealand,4 unless the choice of court agreement is null and void under Australian law,5 including its rules of private international law.6 4.9  Conversely, Australian legislation may direct an Australian court to stay certain proceedings. Such a requirement is found in s  7(2) of the International Arbitration Act 1974 (Cth), which requires that an Australian court must stay proceedings brought in breach of an international arbitration agreement, with very limited exceptions.7 A similar requirement is found in the Trans-Tasman Proceedings Act 2010 (Cth), which requires Australian courts to stay proceedings brought in breach of an exclusive choice of New  Zealand  court agreement,8 subject to very limited exceptions.9 The exceptions in the Trans-Tasman Proceedings Act  2010 (Cth) are very similar to the exceptions to enforcement of arbitration agreements under the New York Convention which are described in Chapter 610 and the case law interpreting those exceptions is likely to be influential in the interpretation of the exceptions to enforcement of choice of court clauses in this context.11

2.

3.

4. 5. 6. 7. 8. 9.

10. 11.

The provisions relating to exclusive choice of court agreements do not apply to consumer and employment contracts: Trans-Tasman Proceedings Act 2010 (Cth) s 20(3)(b), (c). See R Mortensen, ‘Together Alone: Integrating the Tasman World’ in A Dickinson et al, Australian Private International Law for the 21st Century: Facing Outwards, Hart Publishing, Oxford, 2014, pp 131–4. Exclusive choice of court agreement is defined in the Act to mean ‘a written agreement’ that ‘designates the courts, or a specified court or courts, of a specified country, to the exclusion of any other courts, as the court or courts to determine disputes between’ the parties to the proceedings including the ‘matters in issue’ in the proceedings: Trans-Tasman Proceedings Act 2010 (Cth) s 20(3). See Trans-Tasman Proceedings Act 2010 (Cth) s 20(1)(b). This includes claims that the clause is affected by fraud, misrepresentation, and mistake: Z487 Ltd v Skelton [2014] QSC 309. Trans-Tasman Proceedings Act 2010 (Cth) s 20(2A). See Z487 Ltd v Skelton [2014] QSC 309. The exceptions are set out in the International Arbitration Act 1974 (Cth) s 7(2), (5). Trans-Tasman Proceedings Act 2010 (Cth) s 20(1)(a). The five exceptions are where: the exclusive choice of court agreement is null and void under New  Zealand  law (including its rules of private international law); a party to the agreement lacked capacity under Australian law; giving effect to the agreement ‘would lead to a manifest injustice or would be manifestly contrary to Australian public policy’; ‘for exceptional reasons beyond the control of the parties’ the agreement ‘cannot reasonably be performed’; or the New Zealand court has decided not to hear the dispute: Trans-Tasman Proceedings Act 2010 (Cth) s 20(2). These exceptions are very similar to the exceptions in the Hague Choice of Court Agreements Convention (see Article 6; the main difference is that the Convention does not explicitly refer to the rules of private international law of the law of the chosen court as being relevant to determining whether the choice of court agreement is null and void). Section 20(1)(b). The Trans-Tasman Proceedings Act came into effect in October 2013. As at April 2018, there have not been any Australian cases addressing the interpretation and application of the exceptions to enforcement in s  20(2). In In the matter of Douglas Webber Events Pty Ltd, Brereton J did not enforce the choice of New Zealand courts because it did not apply to the plaintiff to Australian proceedings, nor to the issues in dispute in the Australian proceedings: (2014) 291 FLR 173; [2014] NSWSC 1544. In Australian Gourmet

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4.10  An Australian court is constitutionally obliged to give effect to statutory directions to retain or stay proceedings in such cases.12

Jurisdiction agreements 4.11  As already indicated, the parties can expressly agree as to the forum in which proceedings may, or must, be commenced.13 Such agreements are called jurisdiction clauses or agreements, forum clauses, or choice of court agreements.14 They are commonly included in international contracts, and are also used in intranational contracts. As already indicated, a distinction is made between exclusive and non-exclusive jurisdiction agreements.15 An exclusive jurisdiction agreement provides that the parties will litigate only in the courts of a particular place, whether of the forum or a foreign country; whereas a non-exclusive jurisdiction agreement is merely a submission to the jurisdiction of the nominated court, and does not oblige the parties to litigate only in the nominated court. A jurisdiction agreement must be distinguished from a choice of law clause by which the law of the cause for the contract is selected,16 which does not necessarily amount to a submission to the jurisdiction of the courts of the place that gives the proper law of the contract.17 In Chapter 2, it was explained that submission to the jurisdiction of the forum court is effective to establish that court’s competency over the defendant, because the rules of court in all Australian jurisdictions enable service out of the jurisdiction on this basis.18 This chapter focuses on the effect in Australia of jurisdiction agreements if one party challenges the jurisdiction of the Australian court. Jurisdiction agreements in favour of foreign courts may be enforced in two ways: first, the Australian court may stay proceedings brought in breach of a foreign jurisdiction agreement; and second, the court may award damages for the breach of such an agreement. Jurisdiction agreements in favour of the forum may be enforced in three ways: first, by refusing to stay forum proceedings; second, by enjoining the commencement or continuation of foreign proceedings brought in breach of the agreement; and third by the award of damages for breach of contract.

12. 13. 14. 15.

16. 17. 18.

Pastes Pty Ltd v  IAG New Zealand  Ltd the Victorian Court of Appeal held that the defendant could not enforce the choice of court agreement to which it was not a party: [2017] VSCA 155 at [57]. Compagnie des Messageries Maritimes v Wilson (1954) 94 CLR 577 at 585; Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 443. They can also agree on other forms of dispute resolution, including arbitration, which is discussed in detail in Chapter 6. A jurisdiction agreement is different to a choice of law agreement, which selects the applicable law for the contract: see 17.7. Briggs suggested that ‘there is no apparent reason why parties may not, if so advised, make an agreement for the resolution of disputes which is more complex, and better suited to their needs, than would be provided by a plain and simple ‘ “exclusive or non-exclusive’’ template.’: ‘The Subtle Variety of Jurisdiction Agreements’ [2012] Lloyd’s Maritime and Commercial Law Quarterly 364 at 376. Cf D Joseph, Jurisdiction and Arbitration Agreements and Their Enforcement, 3rd ed, Sweet & Maxwell, 2015, p 102. See 17.7–17.13. Van Vogt v  All Canadian Group Distributors Ltd (1969) 71 WWR 535 at 539; Progressive Holdings Inc v Crown Life Insurance Co (2000) 147 Man R (2d) 175. See 2.49.

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4.12  An agreement as to jurisdiction can be decisive in the court’s decision whether to exercise its jurisdiction, if it is exclusive. If the parties have made an agreement as to exclusive jurisdiction, such an agreement should be enforced, absent strong reasons for non-enforcement. As explained above, international arbitration agreements are specifically protected by Australian legislation, which gives effect to the New York Convention. They are discussed in more detail in Chapter 6. The principles relating to the enforcement of arbitration agreements have influenced the treatment of exclusive jurisdiction agreements. 4.13  The policy of most legal systems, including Australia, is to enforce exclusive jurisdiction agreements, subject to certain limitations. The enforcement of jurisdiction agreements is appropriate in the context of international commercial transactions but less readily justified in non-commercial contracts, such as those involving consumers and employees. 4.14  The parties’ agreement as to forum is treated as a separate agreement from the main contract.19 Consequently, an attack on the validity of the main agreement — for example, on the ground that the contract is voidable for misrepresentation — will not invalidate the jurisdiction agreement. It is only where the party seeking to avoid the contractual choice of forum asserts that the choice of forum itself is invalid because their assent to that particular term of the agreement was vitiated that such an argument should be considered.20 Whether the parties have actually concluded a jurisdiction agreement is determined in Australia by the law of the forum.21 If contractual terms including the jurisdiction agreement are readily accessible from a website by clicking on hyperlinks, they will form part of the agreement.22 4.15  The distinction between exclusive and non-exclusive jurisdiction agreements is a question of contractual interpretation. The question is whether the parties are obliged to litigate in the chosen court, if they decide to litigate.23 If so, the agreement is regarded as exclusive. The use of the word ‘exclusive’ in the choice of court agreement is a strong indicator of the parties’ mutual intention; conversely, the failure of the parties explicitly to include the word ‘exclusive’ may be a strong indication that they did not intend the submission to be exclusive.24 4.16  Other relevant factors include the language in which the agreement is expressed. Thus, a forum clause is more likely to be exclusive if ‘disputes’ are to be ‘referred to’, for 19.

20. 21.

22. 23. 24.

This is according to the doctrine of separability, which is well established in international commercial arbitration. It also applies in international litigation: FAI General Insurance Co Ltd v Ocean Marine Mutual (1997) 41 NSWLR 559 at 567. Commonwealth Bank of Australia v White [1999] 2 VR 681; [1999] VSC 262 at [11]; Telesto Investments Ltd v UBS AG (2013) 94 ACSR 29; [2013] NSWSC 503 at [278]. Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 225 per Brennan J; 260–1 per Gaudron J. Wilson and Toohey JJ also applied the law of the forum, without explaining why (at 202) and Deane J agreed with Wilson and Toohey JJ on this point (at 256). See also Venter v Ilona MY [2012] NSWSC 1029, Hargood v OHTL Public Company Ltd [2015] NSWSC 446 at [23] and Central Petroleum Ltd v Geoscience Recovery LLC [2017] QSC 223 at [49]. The same reasoning has been applied to the formation of arbitration clauses: Trina Solar (US), Inc v Jasmin Solar Pty Ltd (2017) 247 FCR 1 at 14, 28, 31. Benson v Rational Entertainment Enterprises Ltd [2015] NSWSC 906 at [60]; Gonzalez v Agoda Company Pte Ltd [2017] NSWSC 1133 at [121]–[125]. Akai Pty Ltd v The People’s Insurance Co Ltd (1996) 188 CLR 418 at 425. Ace Insurance Ltd v Moose Enterprise Pty Ltd [2009] NSWSC 724 at [33]. This is especially so if the parties used the term ‘exclusive’ in previous or related agreements, but not in the relevant contract: Faxtech Pty Ltd v ITL Optronics Ltd [2011] FCA 1320; AAP Industries Pty Ltd v Rehau Pte Ltd [2015] NSWSC 468 at [16].

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example, the courts of Ruritania than if the parties simply ‘submit to’ the jurisdiction of Ruritania’s courts.25 If the parties refer ‘all’ or ‘any’ disputes to the nominated court, or use mandatory language such as that the parties ‘must’ or ‘shall’ submit disputes to the nominated court,26 these factors may indicate that the agreement is exclusive. If supplemented by a clause selecting the law of Ruritania as the subjective proper law of the contract, the forum clause is more likely to be treated as exclusive.27 If the court would have been competent without the agreement, this is also an indicator that the clause was intended to be an exclusive jurisdiction agreement.28 On the other hand, selection of a neutral forum might also be held to indicate exclusivity.29 The subject matter of the contract may also suggest that the forum clause is exclusive. In FAI Insurance Co v Ocean Marine Mutual Protection & Indemnity Assn Ltd, the fact that the contract was one of reinsurance between two international insurers suggested that disputes were only to be determined in one place, and therefore the forum clause was held to establish exclusive jurisdiction.30

Exclusive foreign jurisdiction agreements 4.17  Where the parties have expressly chosen a foreign court as the exclusive forum for litigation, this agreement will be enforced, unless the court takes the view that the foreign court would lack subject matter jurisdiction to deal with the issues in dispute, or there are strong reasons for non-enforcement.31 4.18  In some Australian cases, the courts have held that the foreign court nominated in exclusive jurisdiction agreements would lack subject matter jurisdiction to determine issues under Australian legislation, and for that reason have not enforced the agreement. This is particularly so in cases involving claims for breach of the statutory prohibition of misleading or deceptive conduct, under s 18(1) of the Australian Consumer Law 2010.32

25. 26. 27. 28. 29. 30. 31.

32.

FAI General Insurance Co Ltd v Ocean Marine Mutual Protection & Indemnity Assn Ltd (1997) 41 NSWLR 117 at 127. Ace Insurance Ltd v Moose Enterprise Pty Ltd [2009] NSWSC 724 at [33]. Gem Plastics Pty Ltd v Satrex Maritime (Pty) Ltd (1995) 8 ANZ Ins Cas 61-283; cf Contractors Ltd v MTE Control Gear Ltd [1964] SASR 47. Ace Insurance Ltd v Moose Enterprise Pty Ltd [2009] NSWSC 724; Armacel Pty Ltd v Smurfit Stone Container Corp (2008) 248 ALR 573; [2008] FCA 592 at [88]. Parnell Manufacturing Pty Ltd v Lonza Ltd [2017] NSWSC 562. (1997) 41 NSWLR 117 at 127. 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 224, 231, 259; Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 429, 445, 447. Australian Consumer Law s 18(1), which replaced the Trade Practices Act 1974 (Cth) s 52(1) and similar provisions of the state and territory Fair Trading Acts, with effect from 1 January 2011. See, e.g., Faxtech Pty Ltd v ITL Optronics Ltd [2011] FCA 1320; Reinsurance Australia Corp Ltd v HIH Casualty and General Insurance Ltd (in liq) (2003) 254 ALR 29; [2003] FCA 56; Commonwealth Bank of Australia v White [1999] 2 VR 681; [1999] VSC 262; Quinlan v Safe International Försäkrings AB (2006) 14 ANZ Ins Cas 61-693; [2005] FCA 1362; Home Ice Cream Pty Ltd v McNabb Technologies LLC (No 2) [2018] FCA 1093. Similarly, in  Re Douglas Webber Events (2014) 291 FLR 173; [2014] NSWSC 1544, Brereton J held that only an Australian court could exercise jurisdiction to deal with a dispute under the Corporations Act 2001 (Cth), ss 232, 233, 237 and 1317H.

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In Faxtech Pty Ltd v  ITL Optronics, Middleton J held that only an Australian court has jurisdiction to deal with this claim.33 4.19  The court may find that there are strong reasons for non-enforcement in at least two situations. The first is ‘where the foreign jurisdiction clause offends the public policy of the forum whether evinced by statute or declared by judicial decision’.34 This includes a situation where the chosen court would not apply Australian substantive legal principles which give effect to Australian policy. In Akai Pty Ltd v The People’s Insurance Co Ltd,35 the High Court held that certain remedial provisions of Australian legislation would be applied in favour of the insured, if the dispute was heard in the Australian courts. The parties had expressly chosen to litigate exclusively in England. By majority, the High Court held that the court was obliged to ensure the application of those remedial provisions. Unless the defendant could show that the English court would apply those provisions in favour of the insured, the majority held that the Australian court must not stay proceedings in favour of the parties’ choice of court. 4.20 In Akai, the majority ultimately relied on a provision of the Insurance Contracts Act 1984 (Cth), which prohibits contracting out of the operation of that Act,36 to justify non-enforcement of the exclusive choice of English court agreement. Other statutes contain similar provisions restricting the parties’ ability to contract out of the application of legislation, including the Australian Consumer Law, which states that the consumer guarantees established in the Australian Consumer Law cannot be excluded, restricted or modified by contract.37 Following Akai, the statutory prohibition of contracting out means that a foreign jurisdiction agreement cannot exclude the operation of the substantive provisions of the relevant statute.38 The People’s Insurance Company, defendant to Australian proceedings, successfully applied for an anti-suit injunction in the English Commercial Court, preventing Akai, the plaintiff to the Australian proceedings, from continuing with the Australian litigation on the merits of the dispute.39 The defendant’s assets, against which any Australian order would ultimately have to be enforced, were located in Singapore, where it was most unlikely that the Australian judgment, refusing to uphold the parties’ agreement as to forum and choice of law, would be given effect. In other words, the majority’s decision in Akai was ultimately futile. 4.21  The second situation which may establish strong reasons justifying non-enforcement of an exclusive foreign jurisdiction agreement is where the litigation in the Australian court includes matters beyond the scope of the jurisdiction agreement, or third parties to 33. 34. 35. 36. 37. 38.

39.

[2011] FCA 1320 at [16], [18]. Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 445. (1996) 188 CLR 418. At 447–8, applying the Insurance Contracts Act 1984 (Cth) s 52(1). Australian Consumer Law s 64. The Australian Consumer Law is found in Sch 2 to the Competition and Consumer Act 2010 (Cth). See  Proactive Building Solutions v  Keck [2013] NSWSC 1500, applying the prohibition on contracting out in the Building and Construction Industry Security of Payment Act 1999 (NSW) s 34, to justify nonenforcement of an express choice of English courts. Akai Pty Ltd v People’s Insurance Co Ltd [1998] 1 Lloyd’s Rep 90.

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the agreement. In such a case, the public interest in avoiding multiplicity of litigation, the possibility of inconsistent outcomes, and inconvenience to third parties, might justify nonenforcement of the jurisdiction agreement.40 4.22  Whether the jurisdiction agreement applies to all of the issues in dispute in the Australian proceedings is a question of the interpretation of the agreement, which should be done according to the proper law of the contract. Reference to ‘all’ or ‘any’ disputes is more likely to be held to encompass every possible dispute between the parties; if the agreement refers to particular types of disputes, it will be limited in its effect. In construing the agreement, there are two competing interpretive approaches. The first, now dominant, approach is that the courts should interpret forum clauses broadly and beneficially, on the basis that the parties:41 … 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.

4.23  A common form of words used in jurisdiction agreements is that the parties agree to submit all disputes ‘arising from or in connection with the contract’ to the jurisdiction of a particular court. The phrase ‘in connection with’ is regarded as broader in scope than the phrase ‘arising from’42 and is therefore often interpreted to encompass a wide range of non-contractual claims. A broadly-worded jurisdiction clause will probably be held to encompass claims under Australian legislation, including claims under the Australian Consumer Law.43 4.24  The second interpretive approach places a great deal of weight on the wording of the jurisdiction clause, and is more likely to lead to a narrow construction of the agreement.44 If the second approach is taken, it is more likely that the forum agreement will not be enforced, at least so far as non-contractual claims are concerned. The first approach is superior in that it is more likely to represent the parties’ mutual intentions at the time of contracting.45 4.25  The court may refuse to enforce a choice of foreign court agreement by staying proceedings where third parties to litigation in the forum are not parties to the jurisdiction agreement and would not therefore be bound by it.46 Where the third parties were involved 40. 41.

42. 43.

44. 45. 46.

Incitec Ltd v Alkimos Shipping Corp (2004) 138 FCR 496; [2004] FCA 698 at [47]. Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 at 165. See also Telesto Investments Ltd v UBS AG (2013) 94 ACSR 29; [2013] NSWSC 503 at [269]–[272]; Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd (2013) 298 ALR 666 at 684–6; [2013] WASCA 66. Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) (2010) 79 ACSR 383; [2010] NSWCA 196 at [56]. Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCA 192; Yperion Technology SAS v Luminex Pty Ltd [2012] FCA 554 at [16]–[17]; Telesto Investments Ltd v UBS AG (2013) 94 ACSR 29; [2013] NSWSC 503 at [269]–[272]. See, for example, Reinsurance Australia Corp Ltd v HIH Casualty and General Insurance Ltd (in liq) (2003) 254 ALR 29; [2003] FCA 56; Vetreria Etrusca SRL v Kingston Estate Wines Pty Ltd [2008] SASC 75. Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) (2010) 79 ACSR 383; [2010] NSWCA 196. Incitec Ltd v Alkimos Shipping Corp (2004) 138 FCR 496; [2004] FCA 698; Venter v Ilona MY [2012] NSWSC 1029 at [42]–[43]; Vautin v BY Winddown, Inc (No 2) [2016] FCA 1235; Royal Bank of Scotland plc v Babcock & Brown DIF III Global Co-Investment Fund LP [2017] VSCA 138.

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4.26

in the transactions in question, it is possible that the court may still enforce the jurisdiction agreement, at least against the parties to the contract.47 In general, Australian courts are likely to enforce exclusive foreign jurisdiction agreements in commercial contracts strictly.48 Non-commercial contracts 4.26  Cross-border litigation involving consumers and employees is uncommon in comparison to commercial litigation. In general, Australian courts are unlikely to enforce exclusive jurisdiction agreements in non-commercial cases.49 Under the Trans-Tasman Proceedings Act, even exclusive choice of court agreements nominating New Zealand courts in consumer and employment contracts are merely one factor to be considered in determining whether an Australian court should stay proceedings.50 In cases to which the Trans-Tasman Proceedings Act does not apply, Australian courts refer to the principles developed in commercial cases, but are inclined not to enforce jurisdiction clauses as strictly in non-commercial cases. In Quinlan v Safe International Försäkrings AB, Nicholson J stated that ‘in a consumer situation, the court should not place as much weight on an exclusive jurisdiction clause in determining a stay application as would be placed on such a clause where there was negotiation between business people’.51 However, in Gonzalez v  Agoda Co Pte Ltd,52 Button J enforced an exclusive jurisdiction clause in favour of Singaporean courts against an Australian consumer, finding that there was no strong cause for nonenforcement of the clause. It was argued in this case that the foreign jurisdiction clause was void as being an unfair term under the Australian Consumer Law.53 Button J declined to reach a concluded view on that point, but commented that on the evidence, he did not accept ‘that there is anything unfair about an international corporation seeking to protect itself from claims being litigated in the courts of countless countries applying countless different substantive and procedural laws’.54

47.

48.

49. 50.

51.

52. 53. 54.

Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) (2010) 79 ACSR 383; [2010] NSWCA 196 at [71]–[80]; Nicola v Ideal Image Development Corp Inc (2009) 261 ALR 1; [2009] FCA 1177 at [79]. See also Yperion Technology SAS v Luminex Pty Ltd [2012] FCA 554. Cf Royal Bank of Scotland plc v Babcock & Brown DIF III Global Co-Investment Fund LP [2017] VSCA 138. But see  Benson v  Rational Entertainment Enterprises Ltd, in which Robb J placed ‘little weight’ on the exclusive jurisdiction clause because there was ‘no real connection’ between the chosen forum and either the parties or the facts of the dispute: [2015] NSWSC 906 at [132]. E.g. Knight v Adventure Associates Pty Ltd [1999] NSWSC 861; Hargood v OHTL Public Company Ltd [2015] NSWSC 446. This is because they are excluded from the definition of exclusive choice of court agreements in the TransTasman Proceedings Act 2010 (Cth) s 20(3)(b) and (c). Therefore, the effect of a choice of court agreement in a consumer or employment contract falls to be determined under s 17(1), in which case, it is merely one factor that the court should take into account: s 19(2)(d). See below 4.56. (2006) 14 ANZ Ins Cas ¶61-693; [2005] FCA 1362 at [46]. This passage was cited with approval by Karakatsanis, Wagner and Gascon JJ of the Supreme Court of Canada in Douez v Facebook, Inc [2017] SCC 33 at [34]. [2017] NSWSC 1133. Australian Consumer Law 2010 s 23. [2017] NSWSC 1133 at [126].

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4.27  The Franchising Code of Conduct renders ineffective a clause in a franchising agreement which requires a party to bring an action or proceeding relating to that agreement anywhere other than the state or territory in which the franchised business is based.55 This would invalidate any exclusive choice of court clause in a franchising contract, but does not apply to non-exclusive jurisdiction clauses in such contracts because they do not ‘require’ a party to bring proceedings in any particular court.

Consequences of breaching an exclusive foreign jurisdiction agreement 4.28  At least in principle, damages are available for breach of an agreement to litigate exclusively in the forum.56 Equally, litigants in an Australian court should be conscious that bringing proceedings in Australia in breach of an exclusive foreign jurisdiction agreement may expose them to liability for damages for breach of contract. Moreover, the courts of the agreed foreign forum might issue an anti-suit injunction against the plaintiff in the Australian proceedings, enjoining the Australian plaintiff from continuing with those proceedings.57

Non-exclusive foreign jurisdiction agreements 4.29  A non-exclusive jurisdiction clause provides that the parties submit to the jurisdiction of the nominated courts, but does not preclude the parties from suing elsewhere. It is therefore not a breach of contract for proceedings to be pursued in the courts of the forum.58 As would be expected, a non-exclusive jurisdiction clause is not as strong an argument as an exclusive jurisdiction clause for a stay or dismissal of proceedings commenced in the forum. It is, nevertheless, a relevant consideration for the court to take into account in deciding whether, on normal principles of forum non conveniens, the court should refuse to exercise jurisdiction.59 Forum non conveniens is discussed below at 4.32 ff.

Unilateral and asymmetric jurisdiction agreements 4.30  Some jurisdiction agreements apply to the parties differently. They typically oblige one party to litigate, if at all, exclusively in one jurisdiction, and give the other party the right to choose to litigate in a range of forums. This type of agreement is called unilateral or asymmetric. In the Australian cases, the relevant component of the clause is treated separately from the clause as a whole, and Australian courts have not doubted the

55. 56.

57. 58. 59.

Franchising Code of Conduct, cl 21. This code is Sch 1 to the Competition and Consumer (Industry Codes — Franchising) Regulation 2014 (Cth). Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG [2014] 1 All ER 590; [2013] UKSC 70; Compagnie des Messageries Maritime v Wilson (1954) 94 CLR 577 at 587; Ace Insurance Ltd v Moose Enterprise Pty Ltd [2009] NSWSC 724 at [53]; Commonwealth Bank v White (No 2) [2004] VSC 268 at [5]; John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd (No 2) [2015] NSWSC at [32]–[33] (assuming without deciding that damages are available for breach of arbitration and forum agreements); R Garnett, ‘Jurisdiction Clauses Since Akai’ (2013) 87 Australian Law Journal 134 at 148–9; A Briggs, Agreements on Jurisdiction and Choice of Law, Oxford University Press, Oxford, 2008, Ch 8. E.g. Akai Pty Ltd v The People’s Insurance Company [1998] 1 Lloyd’s Rep 90. See Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 426, 428, 447. Eurogold Ltd v Oxus Holdings (Malta) Ltd [2007] FCA 811.

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enforceability of the relevant aspect of the clause, or of such clauses as a whole. They are regarded as enforceable in England,61 although they are not enforceable in some legal systems and therefore they should be used with caution.62 60

Jurisdiction agreements in favour of the forum 4.31  The parties seldom dispute the effect of an express choice of the forum court. Where they do, Australian courts will enforce an exclusive agreement, absent strong grounds for non-enforcement, by refusing to grant a stay, or by granting an anti-suit injunction to restrain the commencement or continuation of foreign proceedings brought in breach of the agreement.63 Again, in principle, damages are available for breach of an exclusive jurisdiction agreement.64 If the choice of the forum court is non-exclusive, its effect will be determined by the principle of forum non conveniens.

Forum non conveniens 4.32  If there is no applicable mandatory law which determines whether proceedings should be stayed or retained, and no exclusive jurisdiction agreement, the applicable principle for determining whether proceedings should be stayed is forum non conveniens. This is a principle of Scots law, adopted in England in the 1970s and 1980s, a version of which was then adopted in Australia. The Australian case law version of forum non conveniens is unique in the common law world, and was developed in reaction to the English version of the principle, which is discussed below before moving on to a consideration of the Australian law. There are also several legislative versions of forum non conveniens in Australia which differ from the case law version of this principle. 4.33  For most of the 20th century, the common law in Australia, as stated in Maritime Insurance Co Ltd v Geelong Harbour Trust Commissioners,65 only allowed a court to grant a stay of proceedings in which it had jurisdiction where the defendant could show that: (1)  if  the proceedings were to continue they would cause an injustice to the defendant because they were (a) oppressive or vexatious; or (b) an abuse of the process of the court; and (2) a stay of the proceedings would not cause an injustice to the plaintiff. Thus the availability of a stay depended more on the moral propriety of the proceedings than on the relative suitability of the forum. The principle also meant that it was highly improbable that the court would stay proceedings, and the plaintiff ’s choice of forum was only rarely

60. 61. 62. 63. 64.

65.

Reinsurance Australia Corp Ltd v  HIH Casualty & General Insurance Ltd (in liq) (2003) 254 ALR 29; [2003] FCA 56 at [343]–[346]; Venter v Ilona MY [2012] NSWSC 1029. See Garnett, above n 56, at 137. Mauritius Commercial Bank Ltd v Hestia Holdings Ltd [2013] EWHC 1328; [2013] 2 All ER 898. See M Keyes and BA Marshall, ‘Jurisdiction Agreements: Exclusive, Optional, and Asymmetric’ (2015) Journal of Private International Law 345. Ace Insurance Ltd v Moose Enterprise Pty Ltd [2009] NSWSC 175. Dinelli argues that damages should not be awarded for breach of a jurisdiction agreement if that would contradict a foreign judgment which is recognised in Australia: ‘The Limits on the Remedy of Damages for Breach of Jurisdiction Agreements: The Law of Contract Meets Private International Law’ (2015) 38 Melbourne University Law Review 1023. (1908) 6 CLR 194. See also St Pierre v South American Stores (Gath & Chaves) Ltd [1936] 1 KB 382 at 398.

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displaced. This was in marked contrast to the position under Scots law. There, under principles of forum non conveniens the court could restrain proceedings commenced properly in Scotland where there was another place in which the proceedings could be more suitably determined in the interests of the parties and the ends of justice.67 66

The Spiliada approach 4.34  In England, the pressure of an increasing volume of international litigation and opportunities for forum shopping saw the traditional principle gradually transformed until, in Spiliada Maritime Corp v Cansulex Ltd,68 the House of Lords adopted the Scottish principles for the purposes of English law. The English doctrine of forum non conveniens comprises two stages. The first stage requires the court to grant a stay, if the defendant can establish that there is another more appropriate forum for the resolution of the dispute, which is referred to as the ‘natural forum’. That is the forum which might be regarded as the seat of the proceedings — the court with which the proceedings have their most real and substantial connection. This is identified by considering a range of connecting factors. In Spiliada, Lord Goff of Chieveley listed these as the residence and availability of witnesses; the residence and places of business of the parties; and the law of the cause. The second stage is that, even if the defendant has established that there is a more appropriate forum, the court might not grant a stay if the plaintiff can show that the effect of a stay would be to deprive the plaintiff of a ‘legitimate personal or juridical advantage’ which was available in the forum, but not in the other forum. In Spiliada, the legitimate advantages referred to by Lord Goff include the benefit of a longer limitation period.69 4.35  Under the English principles of forum non conveniens, the main issue therefore is whether there is a more appropriate forum in another place that can hear and determine the proceedings. In Lubbe v Cape Plc,70 the defendant applied for a stay of proceedings in England, and undertook to submit to the jurisdiction of the South African courts to deal with the plaintiff ’s claims. The South African courts did not have jurisdiction to hear a claim against the defendant, and would only gain jurisdiction once the defendant complied with the undertaking. This was thought sufficient by the House of Lords for the courts in South Africa to be regarded as having jurisdiction to determine the dispute. The plea of forum non conveniens still failed in Lubbe, however, because it appeared that the plaintiffs could not fund their class actions for asbestos-related claims in South Africa.71 Although the way that litigation might be funded in the different countries’ courts (which usually relates to the availability of legal aid or contingency fees) will not normally be decisive in an application to stay proceedings, it can be in ‘exceptional cases’. In Lubbe, the complexity of the claims

66.

67. 68. 69. 70. 71.

Cf Egbert v Short [1907] 2 Ch 205. However, see Lough Neagh Exploration Ltd v Morrice [1999] NICA 8, where an action was dismissed for abuse of process, as the plaintiff had claimed similar relief in Northern Ireland to a matter it had discontinued in the Republic of Ireland. Sim v Robinow (1892) 19 R 665. [1987] AC 460. At 478. [2000] 2 All ER 986. See also Tulloch v Williams (1846) 8 D 657.

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was such that, without the assistance that was available to the plaintiffs in England, the claims would not be heard at all in South Africa.72 4.36  In proceedings in tort, the English courts have accepted that the place in which the tort is committed is prima facie the natural forum for the determination of the dispute, subject to countervailing factors.73 In general, a plea of forum non conveniens is harder to sustain when the plaintiff alleges a tort has been committed in the forum. 4.37  If the defendant to the litigation in question seeks to join a foreign third party to claim contribution or indemnity in the proceedings, then the question of forum non conveniens is determined independently for the third party proceedings. So long as the principal litigation is being conducted in the natural forum, there are considerable advantages in also allowing the third party claim to be considered, as it avoids multiplicity of proceedings (lis alibi pendens) and potentially conflicting judgments. In Petroleo Brasiliero v Mellitus Shipping,74 the English Court of Appeal held that, in determining the plea of forum non conveniens in a third party contribution claim, some weight will be given to the absence of any claim for contribution in the alternative forum. While the court rejected the view that this should be given conclusive weight, in Petroleo Brasiliero it nevertheless considered that the absence of a claim for contribution in Saudi Arabia, where the third party was located, was a significant factor in reaching the conclusion that the third party claim should be heard in England.75 4.38  United Kingdom courts cannot, at the time of writing this chapter, apply Spiliada in litigation internal to the European Union or European Economic Area, where the court that will hear the case is determined by common rules of jurisdiction.76 These rules give jurisdiction to a court in any country in the European Union or European Economic Area when the defendant is ‘domiciled’ in that country, or some other connection, such as the occurrence of a tort or delict in the country, is established. If there is more than one European Union or European Economic Area court that has jurisdiction under those rules, the court ‘first seised’ of jurisdiction will hear the case.77 For some time, the question of the extent to which principles of forum non conveniens have a residual application in European litigation has vexed courts in the United Kingdom. In general, the European Court of Justice has put a

72. 73. 74. 75. 76.

77.

See also Connelly v RTZ Corp Plc [1998] AC 854; E Peel, ‘Forum Non Conveniens Revisited’ (2001) 117 Law Quarterly Review 187 at 190. VTB Capital plc v Nutritek International Corp [2013] 2 AC 337 at [10], [51]. [2001] 1 All ER (Comm) 993. K Takahashi, ‘Forum Non Conveniens Discretion in Third Party Proceedings’ (2002) 51 International and Comparative Law Quarterly 127. The relevant principles are contained in Council Regulation (EU) No 1215/2012 on jurisdiction and the recognition of judgments in civil and commercial matters (recast) (referred to as Brussels I Recast or Brussels I bis). The Brussels I Recast replaced the Brussels I Regulation, with effect from 10 January 2015. At the time of writing this chapter, in April 2018, it was not clear what form the UK law on jurisdiction will take, upon the UK’s withdrawal from the European Union in 2019. Brussels I Recast, Article 29. The Brussels I Recast recognises various grounds of exclusive jurisdiction: Article 24. That exclusive jurisdiction must be recognised by the courts of member states by staying proceedings in favour of the courts of the place of exclusive jurisdiction: Article 27.

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stop to these opportunities.78 There are English commentators, nevertheless, who argue that English courts could stay proceedings against an English defendant (despite its domicile in a European Union country) in favour of a court in a country outside the European Union or European Economic Area.79 Outside the European arrangements, the Spiliada principles have become the settled approach in England to dealing with international litigation. They have also gained wide acceptance throughout the Commonwealth. They have been adopted in Canada, Fiji, New Zealand  and Singapore.80 The Irish courts also apply the Spiliada principles in international litigation in non-European cases.81

Australian approach 4.39  The case law has taken a different course in Australia. The High Court rejected the Spiliada doctrine of forum non conveniens by a majority in Oceanic Sun Line Special Shipping Co Inc v Fay,82 although on this point Wilson and Toohey JJ dissented. The decision in Oceanic Sun was unsatisfactory in that, among the majority, Brennan J endorsed the traditional, narrow principles as stated in Geelong Harbour Trust,83 and Deane and Gaudron  JJ held to an intermediate position. This latter approach prevailed when majority support for a distinctive Australian doctrine of forum non conveniens emerged in Voth v Manildra Flour Mills Pty Ltd.84 4.40 In Voth, the plaintiff company was incorporated in New South Wales and the defendant was an accountant in Missouri. The plaintiff commenced proceedings in the Supreme Court of New South Wales, claiming damages for negligent advice the defendant was alleged to have given to one of the plaintiff ’s subsidiaries, a company incorporated in the State of Kansas. The defendant was served in Missouri, but applied to have service set aside on the ground of forum non conveniens. This application succeeded on appeal in the High Court of Australia. 4.41  In formal terms, Voth confirms that, in Australia, a court can still only decline to exercise jurisdiction when the proceedings are vexatious or oppressive, or an abuse of the court’s process. On its face, this was no different from the traditional principle of Geelong 78.

79.

80.

81. 82. 83. 84.

Owusu v Jackson [2005] 2 WLR 942; Turner v Grovit [2005] 1 AC 101; CD Bougen, ‘Time to Revisit Forum Non Conveniens in the UK? Group Josi Reinsurance Co v UGIC’ (2001) 32 Victoria University of Wellington Law Review 705 at 712–13. E Peel, ‘Forum Non Conveniens and European Ideals’ [2005] Lloyd’s Maritime and Commercial Law Quarterly 363; A Briggs, ‘Forum Non Conveniens and Ideal Europeans’ [2005] Lloyd’s Maritime and Commercial Law Quarterly 378. Club Mediterranée NZ v Wendell [1989] 1 NZLR 216; Exportrade Corp v Irie Blue New Zealand Ltd [2013] NZCA 675; Schumacher v Summergrove Estates Ltd [2014] 3 NZLR 599; R J Paterson, ‘Forum Non Conveniens in New Zealand’ (1989) 13 New Zealand Universities Law Review 337; Translink Shipping Ltd v Compagnie Wallisienne de Navigation SARL (1991) 37 Fiji LR 46; S Gallacher, ‘After The Spiliada — Forum Non Conveniens in New Zealand and Australia’ (1996) 8 Otago Law Review 603 at 606–7; Rickshaw Investments Ltd v Nicolai Baron von Uexkull [2007] 1 SLR(R) 377; Amchem Products Inc v British Columbia (Workers’ Compensation Board) [1993] 1 SCR 897 at 931; Eng Liat Kiang v Eng Bak Hern [1995] 3 SLR 97; Club Resorts Ltd v Van Breda [2012] 1 SCR 572 at [101]–[112]. Intermetal Group Ltd v Worslade Trading Ltd [1998] 2 IR 1; Jahwar v Betta Livestock 17 [2001] 4 IR 42. (1988) 165 CLR 197. (1908) 6 CLR 194. (1990) 171 CLR 538.

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Harbour Trust. However, Voth also brought a revision of the court’s understanding of the terms ‘vexatious’ and ‘oppressive’. The proceedings would be vexatious and oppressive if the  court found that it was itself a clearly inappropriate forum for the determination of the proceedings. This was therefore a doctrine of forum non conveniens, but a narrower one than that of Spiliada. It only allowed the court to consider its own appropriateness for the determination of the proceedings. It did not require the Australian court to consider which court was the more appropriate forum and, accordingly, did not require the Australian court to undertake comparisons with foreign courts. Nevertheless, the court in Voth assessed its own appropriateness by reference to the same factors that Lord Goff set out in Spiliada for identifying the natural forum, and carried out a comparative analysis in determining whether to stay proceedings. This suggests that the Australian test and the English test are not radically different, but that the threshold for establishing that a stay should be granted is higher in Australia. The majority in Voth thought that the only circumstance in which the Voth test should provide a different outcome to the Spiliada test was where these factors indicated that there was a more appropriate forum for the determination of the proceedings but where the court in Australia was not a clearly inappropriate forum.85 4.42  In Australia, the existence of any legitimate juridical and personal advantage to the plaintiff of litigating in the forum is treated as one of the connecting factors to be considered in determining whether Australia is a clearly inappropriate forum.86 The availability of relief under Australian legislation in Australian litigation is regarded as a juridical advantage.87 The High Court has rarely held that an Australian court was clearly inappropriate, but Voth was such a case. 4.43  The Australian principle of forum non conveniens has been widely and consistently criticised for the weight it gives to the plaintiff ’s choice of court and, consequently, the enhanced opportunities it provides for forum shopping.88 In practice, the Voth test has not provided defendants much opportunity to have proceedings in Australia restrained, and is therefore much more deferent than Spiliada to the plaintiff ’s choice of court.89 Further, except in cases of lis alibi pendens — for which the High Court has adopted less parochial principles90 — the court has repeatedly reinforced this preference of giving effect to the plaintiff ’s selection of forum. In Regie Nationale des Usines Renault SA v Zhang,91 the Supreme Court of New South Wales assumed jurisdiction in a claim relating to injuries suffered in a motor accident in New Caledonia, and which included a claim for defective manufacture 85. 86. 87. 88.

89. 90. 91.

At 558. Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 251; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564–5; Henry v Henry (1996) 185 CLR 571 at 587. Telesto Investments Ltd v UBS AG (2013) 94 ACSR 29; [2013] NSWSC 503 at [170]–[171]. M C Pryles, ‘Judicial Darkness on the Oceanic Sun’ (1988) 62 Australian Law Journal 774 at 784–9; L Collins, ‘The High Court of Australia and Forum Conveniens: The Last Word?’ (1991) 107 Law Quarterly Review 182 at 187; M C Pryles, ‘Forum Non Conveniens — The Next Chapter’ (1991) 65 Australian Law Journal 442 at 450; R Garnett, ‘Stay of Proceedings in Australia: A “Clearly Inappropriate” Test’ (1999) 23 Melbourne University Law Review 30 at 35. M Keyes, ‘Jurisdiction in International Family Litigation: A Critical Analysis’ (2004) 27 University of New South Wales Law Journal 42 at 55. See 4.53–4.54. (2002) 210 CLR 491; [2002] HCA 10.

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of the vehicle by the French defendants. Jurisdiction was claimed on the ground that the plaintiff sustained injury in New South Wales. He was a New South Wales resident and, after having spent some time in hospital in New Caledonia, was repatriated to Sydney where he was hospitalised for several months. He suffered severe disablement. A stay was granted by Smart J, but reversed by the Court of Appeal. The refusal of the stay was confirmed by the High Court. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ responded to the argument that the Supreme Court of New South Wales was a clearly inappropriate forum by returning to the foundational principle that the defendants had to show that ‘a trial in New South Wales would be productive of injustice, because it would be oppressive in the sense of seriously and unfairly burdensome, prejudicial and damaging, or vexatious, in the sense of productive of serious and unjustified trouble and harassment’.92 Although the law of the cause is a factor to weigh in assessing whether or not to accept the plea,93 their Honours noted that 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’.94 It was possible in Renault that the governing law of the case would be French, although the defendants’ evidence had not established the French principles of liability for a delict to occur in France or New Caledonia. While the majority believed that a fair trial would be received in France or New Caledonia, the defendants had not shown that they would suffer oppression or vexation in the ‘relevant sense’.95 4.44 In Puttick v Tenon Ltd,96 another personal injury case, the appellant’s husband had been employed by the respondent in New Zealand. He was exposed to asbestos during visits to factories in Malaysia and Belgium, as part of his employment, and subsequently developed asbestos-related diseases. He later moved with his family to Victoria where he commenced proceedings against the respondent. He died before those proceedings were heard. The proceedings were continued by his wife on behalf of his estate, and on behalf of herself and their children, as his dependants. His employer successfully applied for a stay of proceedings, principally on the basis that New Zealand law was the governing law, a proposition which the primary judge accepted. That decision was upheld by the Victorian Court of Appeal but overturned by the High Court, which was not satisfied that the respondent employer had established that New Zealand law was the governing law of the tort. Given the emphasis placed on that conclusion by the primary judge and on the first appeal, the High Court held that the respondent had not discharged the onus of showing that the forum was clearly inappropriate. But even if it was, the court again stressed that the Australian court would not be clearly inappropriate just because a foreign law was the law of the cause,97 particularly where the foreign law was New Zealand law, even if most of the evidence was found in New Zealand.98

92. 93. 94. 95. 96. 97. 98.

At 521. At 504, citing Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 566. At 521. At 521. (2008) 238 CLR 265; [2008] HCA 54. At [49]. At [31], [32].

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4.47

4.45  In the High Court appeal in Puttick v  Tenon Ltd, for the first time there was a direct challenge to the Australian principle of forum non conveniens enunciated in Voth. The High Court unanimously affirmed that principle,99 which is therefore likely to remain part of the Australian law for the foreseeable future. 4.46  It has already been noted that the assumption of jurisdiction on the ground that damage was suffered in the forum is arguably the most exorbitant jurisdiction exercised by Australian courts.100 Renault shows that the Australian principle of forum non conveniens does little to constrain the exercise of that jurisdiction. The case reinforces the importance, emphasised in Voth, of focusing on the appropriateness of the local court for dealing with the litigation, as against comparing the local and foreign courts to find the better of the two for determining it.101 The High Court in Renault and Puttick v Tenon Ltd shifted from the emphasis in Voth on the geographic considerations that inform the assessment of a clearly inappropriate forum and that put a gloss on the more traditional conceptions of vexation and oppression. The judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Renault plainly restored the idea of vexation and oppression to a primary role in stay applications, and seems to cast it in the more moral terms of Geelong Harbour Trust rather than the geographic terms of Voth. The clear inappropriateness of the local forum is subordinate to this principle. Renault and Puttick v Tenon Ltd demonstrate how much more favourable the Australian principles are to the plaintiff. There is no suggestion, as there is in the Spiliada line of cases,102 that a court in the place of the wrong is prima facie the natural forum for the litigation, or even that the place of the wrong is to be given extra weight in assessing the plea. However, if the Australian court finds that the law of the forum is likely to govern the claim, this will undoubtedly make it extremely difficult to secure a stay of any proceedings before it.103 While Australian choice of law principles, especially in tort, have been modified to recognise the territorial claims of other countries’ law to apply in multi-state disputes, the principles of jurisdiction, only lightly constrained by the Voth test, continue to assert older unilateral approaches in international litigation.104 4.47  The Australian approach to forum non conveniens has not been adopted in any other common law country, and the High Court majority’s unwillingness to accede to the general trend of authority throughout the Commonwealth remains another point at which Voth is consistently exposed to criticism.105 The legislative versions of forum non conveniens described below resemble the English principle rather than the Australian case law principle. 99. At [28]–[30], [38]. 100. See 2.78. 101. G Lindell, ‘Regie Nationale des Usines Renault SA v Zhang: Choice of Law in Torts and Another Farewell to Phillips v Eyre but the Voth Test Retained for Forum Non Conveniens in Australia’ (2002) 3 Melbourne Journal of International Law 364 at 381. 102. See 4.36 and 4.73. 103. See, for example, Union Shipping New Zealand Ltd v Morgan (2002) 54 NSWLR 690 at 735; [2002] NSWCA 124; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 608, 642, 654; [2002] HCA 56. 104. P Smart, ‘Foreign Torts and the High Court of Australia’ (2002) 118 Law Quarterly Review 512. 105. The one possible exception is Vanuatu, where in Naylor v Kilham [1999] VUSC 11, Lunabek ACJ applied Voth. However, the decision is difficult to reconcile with the earlier decision of the Vanuatu Court of Appeal in Chan Wing (Vanuatu) Ltd v Motis Pacific Lawyers [1998] VUCA 3, and was probably decided per incuriam. See R Mortensen, ‘Duty Free Forum Shopping: Disputing Venue in the Pacific’ (2001) 32 Victoria

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Procedure 4.48  The doctrine of forum non conveniens may be raised where, in cases of service of a defendant outside Australia, the plaintiff seeks leave to serve or to proceed, or where the defendant, once served, applies to have service of process set aside.106 In any of these cases, the onus rests on the plaintiff to show that the court is not a clearly inappropriate forum. Forum non conveniens can also be raised in proceedings where the court has jurisdiction as of right, either at common law or under the Service and Execution of Process Act 1992 (Cth). In this case, the defendant must apply for a stay to show that the court is a clearly inappropriate forum. It is possible to raise forum non conveniens in cases where jurisdiction is established at common law or under the Service and Execution of Process Act, which only raise issues internal to Australia. However, the courts will only stay proceedings in matters that raise issues internal to Australia in ‘very rare’ cases. Questions of the appropriate forum in these cases will normally be dealt with by transfer under the cross-vesting scheme.107 4.49  The doctrine of forum non conveniens is applied to determine where the arguments about the merits of the case are to be heard and determined. Often, the decision about where to litigate will finalise the dispute. However, this is not always the case and, as an interlocutory question, the issue of forum non conveniens should be determined quickly. In Spiliada, Lord Templeman stated that the decision whether to stay proceedings is for the primary judge, that submissions should be brief, and that appeal courts should be slow to interfere.108 In Voth, the majority echoed this sentiment, holding that submissions to the court should be measured in minutes and, where possible, an agreed statement of the relevant connecting factors for the case should be handed to the court.109 In several later cases, judges have noted that it is difficult, if not impossible, to follow the direction of the majority in Voth, given the importance of the issue of jurisdiction to the parties.110 4.50  Lord Templeman’s statement was re-affirmed by the Supreme Court of the United Kingdom in VTB Capital plc v Nutritek International Corp, in which Lord Neuberger noted that since Spiliada was decided, the judiciary had been encouraged to exercise far greater case management powers, and held that the courts should invoke those powers ‘to ensure that the evidence and argument on service out and stay applications are kept within proportionate bounds and do not get out of hand’.111 4.51  The rules of the New South Wales, South Australian, Tasmanian, Victorian and the Australian Capital Territory Supreme Courts state that initiating process may be set aside,

106. 107. 108. 109. 110. 111.

University of Wellington Law Review 673; R Mortensen, ‘Comity and Judicial Restraint in Vanuatu’ (2002) 33 Victoria University of Wellington Law Review 95. Cf Henwood v Levesque Beaubien Geoffrion Inc (1998) 128 Man R (2d) 72, where it was held that dismissal of proceedings was not the appropriate way to respond to a successful plea of forum non conveniens. Douglas v Philip Parbury & Associates [1999] WASC 15; see also 4.59–4.73. Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 465. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565. See, for example, News Corp Ltd v Lenfest Communications Inc (1996) 21 ACSR 553 at 573–4. [2013] 2 AC 337 at 376–7.

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or the exercise of jurisdiction declined, if the court concludes that it is an ‘inappropriate’ forum for the trial of the proceedings.112 The language of the rules has raised the question whether they amount to a statutory modification of the common law principles of Voth, and so import the principles of Spiliada by legislative action. In Regie Nationale des Usines Renault SA v Zhang113 and Dow Jones & Co Inc v Gutnick114 the majority in the High Court treated the rules for the New South Wales and Victorian Supreme Courts as demanding the common law standards of Voth.115 In Renault, both Kirby and Callinan JJ, who appeared to support the adoption of the Spiliada principles, believed that the rules of court modified the common law and required the question of a stay or dismissal to be assessed according to either the Spiliada standard or one that made no reference to the common law concepts of vexation and oppression required by Voth.116 Kirby J reiterated that view in Gutnick;117 however, in both cases, this was a minority position.118 There is no specific reference to a stay on the ground of ‘inappropriateness’ in the present rules in the Northern Territory, Queensland and Western Australian Supreme Courts, the Federal Court and the High Court, but the common law entitlement to apply for a stay or dismissal of proceedings on the ground of forum non conveniens is certainly available in litigation in each of those courts. 4.52  In an application on the ground of forum non conveniens, slightly different considerations may arise in cases of lis alibi pendens.

Related proceedings 4.53  Lis alibi pendens arises where there are similar or related proceedings between the same parties in the forum and in a foreign court. Where the defendant in the forum merely applies for a temporary stay of proceedings pending determination of the proceedings in the foreign place, the principles of Voth do not apply. The court considers whether the proceedings in the foreign place were commenced first, the stage they have reached, and the effect that determination of the foreign proceedings would have on the proceedings in the forum.119 However, if the defendant in the forum applies either to have service set aside or for a permanent stay of proceedings on the ground that the existence of identical or related proceedings in a foreign place makes the proceedings in the forum vexatious and oppressive, then the principles of Voth do apply. So, the overriding consideration remains whether the forum court is a clearly inappropriate forum for the determination of the proceedings.120 Traditionally, the existence of identical or related proceedings in the 112. See Court Procedures Rules 2006 (ACT) r 6504(2)(b); Uniform Civil Procedure Rules 2005 (NSW) r 11.6(2)(b); Supreme Court Civil Rules 2006 (SA) r 40C(2)(b); Supreme Court Rules 2000 (Tas) r 147C(2)(b); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 7.04(2)(b). 113. (2002) 210 CLR 491; [2002] HCA 10. 114. (2002) 210 CLR 575; [2002] HCA 56. 115. Cf Lindell, above n 101, at 379–80. 116. (2002) 210 CLR 491 at 543–5, 562–6; [2002] HCA 10. 117. (2002) 210 CLR 575 at 640–1; [2002] HCA 56. 118. But see Studorp Ltd v Robinson, in which Allsop P expressed the view that ‘[t]here seems to me to be a difference in quality and emphasis with the addition of the adverb [clearly]’: [2012] NSWCA 382 at [5]; and compare [62] (Hoeben JA). 119. Sterling Pharmaceuticals Pty Ltd v Boots Co (Aust) Pty Ltd (1992) 34 FCR 287 at 294. 120. Sentry Corp v Peat Marwick (1990) 95 ALR 11 at 36–7.

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foreign place has not made courts more inclined to grant a stay of proceedings, especially where the defendant in the forum is the plaintiff in the foreign proceedings.121 However, in the High Court’s decision in Henry v Henry,122 an almost identical matrimonial cause in Monaco was a significant factor in the decision whether to grant a stay of proceedings in Australia. Indeed, the majority — Dawson, Gaudron, McHugh and Gummow JJ — held that, where proceedings are already pending in a foreign place, it is prima facie vexatious and oppressive to commence proceedings in an Australian court in relation to the same matter.123 4.54  In considering the plea of forum non conveniens, the majority in Henry held that the court should also take into account other factors including the jurisdiction of the foreign court; whether its judgment can be enforced in Australia; the stage the separate proceedings have reached; the costs incurred; the relative connections each party has with the foreign and forum courts; and the ability of each of the parties to participate in the proceedings in the foreign and forum courts on an equal footing.124 But to the extent that it signals a scenario that is prima facie considered vexatious and oppressive and in which proceedings are likely to be stayed or dismissed, Henry shifts from the general approach to forum non conveniens in Australia.125 It also suggests that a comparison is to be made between the circumstances of the forum court and those of the foreign court, which is stated to be impermissible in Voth, and re-emphasised both in Renault v Zhang and in Puttick v Tenon.126 The approach of Henry, nevertheless, still depends on the primacy of Voth’s ‘clearly inappropriate forum’ gloss on the principles of vexation and oppression. It is therefore unclear whether the return to a more substantive assessment of vexation and oppression in Renault is likely to upset the principle of Henry. However, even if that is unlikely, it should be noted that Henry’s conclusion that the Australian proceedings will be prima facie vexatious and oppressive only holds where the foreign proceedings are commenced first, and where they relate to the same subject matter. If the Australian proceedings were commenced first, or the proceedings are on a related, but not identical, matter, the normal principles of Voth will be applicable.127

Trans-Tasman litigation 4.55  As noted above, the provisions of the Trans-Tasman Proceedings Act 2010 (Cth) relating to staying proceedings apply with exclusive effect so that any application for a stay of Australian proceedings on forum grounds, where New Zealand is the alternative Cohen v Rothfield [1919] 1 KB 410 at 414; Witten v Lombard Australia Ltd [1970] ALR 77 at 80. (1996) 185 CLR 571. At 590–1. At 592–3. Primary judges have taken these factors into account in stay applications that did not involve parallel proceedings: Point of Pay Pty Ltd v Roots [2012] VSC 380; Bogart Lingerie Ltd v Steadmark Pty Ltd [2013] VSC 212; Centrebet Pty Ltd v Baasland (2012) 272 FLR 69. 125. Garnett, above n 88. 126. Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 520–1; [2002] HCA 10; Puttick v Tenon Ltd (2008) 238 CLR 265; [2008] HCA 54 at [27]. 127. Central Petroleum Ltd v  Geoscience Resource Recovery LLC [2017] QSC 223. Cf Australian Commercial Research and Development Ltd v ANZ McCaughan Merchant Bank [1989] 3 All ER 65 at 69; Rocklea Spinning Mills Pty Ltd v Consolidated Trading Corp [1995] 2 VR 181; CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345. 121. 122. 123. 124.

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forum, must be dealt with under the Act. The provisions of the Trans-Tasman Proceedings Act relating to staying proceedings in which there is no exclusive choice of court agreement are very similar to the related provisions of the Service and Execution of Process Act 1992 (Cth),129 on which they were based.130 128

4.56  The Act provides that the court may stay proceedings in favour of litigation in New  Zealand, if the New Zealand  court is jurisdictionally competent to deal with ‘all the matters in dispute’,131 and ‘the more appropriate court to determine those matters’.132 Evidently, this requires the court to use the Spiliada version of forum non conveniens, rather than the Voth version. The Trans-Tasman Proceedings Act lists a number of factors to which the court must refer in determining whether the New Zealand court is more appropriate. This list contains some of the factors listed in Spiliada133 and endorsed in Voth, but like the equivalent provision in the Service and Execution of Process Act, the Trans-Tasman Proceedings Act also lists more specific considerations. These include the location of ‘the subject matter of the proceeding’, the parties’ financial circumstances and ‘any other matter that the Australian court considers relevant’.134 Non-exclusive forum agreements and parallel litigation are listed as relevant factors.135 In Australian Gourmet Pastes Pty Ltd v IAG New Zealand Ltd,136 the Victorian Court of Appeal considered that a stay in favour of the New Zealand courts should be declined as Australia was the principal place of business for two of the parties, the residence of the likely witnesses for the proceedings and the place where the subject-matter – circumstances giving rise to an insurance claim – was located.137 In contrast, in Fraser v Fraser,138 which was an application in New Zealand for a stay under the equivalent New Zealand provision,139 Fitzgerald J considered that the factors favouring the New Zealand or Western Australian courts were ‘relatively finely balanced’.140 However, more of the witnesses were likely to be in Australia, and this weighed slightly in favour of the Australian court.141 A stay was granted.142

128. See  Trans-Tasman Proceedings Act  2010 (Cth) s  21(1). The Act does not deal with, or prevent, staying proceedings on grounds other than forum challenges: s 21(2). 129. See Service and Execution of Process Act 1992 (Cth) s 20, discussed at 4.77–4.80. 130. See  R Mortensen, ‘Woodhouse Reprised: Accident Compensation and Trans-Tasman Integration’ (2013) 9 Journal of Private International Law 1 at 25–31; Mortensen, above n 2, pp 125–31. 131. Re Douglas Webber Events Pty Ltd [2014] NSWSC 1544 at [34]–[38]. 132. See Trans-Tasman Proceedings Act 2010 (Cth) s 19(1). 133. Re Featherstone Resources Ltd; Tetley v Weston (2014) 288 FLR 265; 101 ACSR 394; [2014] NSWSC 1139 at [7]. 134. See Trans-Tasman Proceedings Act 2010 (Cth) s 19(2); Re Featherstone Resources Ltd; Tetley v Weston (2014) 288 FLR 265; 101 ACSR 394; [2014] NSWSC 1139. 135. See Trans-Tasman Proceedings Act 2010 (Cth) s 19(2)(d), (f). 136. [2017] VSCA 155. 137. At [83]. 138. [2017] NZHC 1055. 139. Trans-Tasman Proceedings Act 2010 (NZ) s 24. 140. [2017] NZHC 1055 at [46]. 141. At [35], [46]; cf Skelton v  Z487 Ltd [2014] NZHC 707, where the predominance of witnesses in New Zealand led to the stay being refused. 142. See also Lifestyle Investment Group v Coral Investments Securities Ltd [2016] NZHC 2262.

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4.57  A shortcoming of the provision for stays of proceedings on forum grounds in the Trans-Tasman Proceedings Act is its apparent inability to address trans-Tasman personal injuries claims.143 As noted, the Act gives an Australian court power to stay proceedings in favour of a New Zealand court if the New Zealand court ‘has jurisdiction to determine matters in issues between the parties’ and ‘is the more appropriate court’.144 In New Zealand, personal injuries claims cannot be brought in the courts; under the Accident Compensation Act  2001 (NZ) injury compensation is an administrative procedure and handled by an administrative agency — the Accident Compensation Corporation. Personal injuries litigation in a New Zealand  court is prohibited.145 As the compensation it provides is usually less generous than the common law damages available for personal injuries claims in Australia, the Accident Compensation Act has been a significant motivation for New  Zealand  litigants to bring personal injuries claims in Australian courts.146 If these injuries are deemed to have taken place in New Zealand, Australian courts would almost inevitably conclude that the question was governed by New Zealand law and, as a result, there would be a strong case for a stay in favour of the New Zealand courts. However, there is no court in New Zealand that has jurisdiction to determine a personal injuries claim, and so it appears that the Trans-Tasman Proceedings Act gives no power to an Australian court to grant the stay. The problem is compounded in that the Act also prohibits Australian courts from granting a stay of proceedings on forum grounds at common law147 — Voth is not available to courts to consider a stay of proceedings in trans-Tasman matters. This is an unsatisfactory state of affairs, and stems from a failure to consider the implications of New Zealand’s unique accident compensation scheme when the trans-Tasman scheme of jurisdiction was developed. It is worth considering an amendment to the Act to allow stays of proceedings in favour of decision-makers other than courts — including the Accident Compensation Corporation.

Interstate proceedings 4.58  Contests about the forum in which multi-state litigation should be heard also arise in multi-state litigation within Australia. Here, the effective choice is between two courts in Australia, whether that is a choice between courts in different states or territories, or between a federal court on the one hand and a state or territory court on the other. Different rules apply to determine whether multi-state proceedings within Australia should be restrained, depending on whether those proceedings were commenced in superior or intermediate and inferior courts.

Interstate proceedings in superior courts 4.59  For proceedings initiated in a superior court, the circumstances in which the court is required to decline to exercise a jurisdiction that is otherwise properly established differ 143. See generally Mortensen, ‘Woodhouse Reprised’, above n 130, pp 25–33. 144. Trans-Tasman Proceedings Act 2010 (Cth) s 20. 145. Accident Compensation Act  2001 (NZ) s  317. Litigation may be permitted if exemplary damages are claimed: s 319. 146. See Mortensen, ‘Woodhouse Reprised’, above n 130, pp 11–12. 147. Trans-Tasman Proceedings Act 2010 (Cth) s 21(1).

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radically from the case law principle of forum non conveniens. For most cases, the rules are derived from the Jurisdiction of Courts (Cross-vesting) Acts enacted in all Australian jurisdictions.148 Under s 5 of the Cross-vesting Acts, the court is in some cases obliged to transfer the proceeding to one of the other superior courts participating in the cross-vesting scheme. It is not necessary that the transferring court be exercising cross-vested jurisdiction to make the transfer. The transferring court may be exercising jurisdiction at common law, under the Service and Execution of Process Act 1992 (Cth) or under its own rules of court. Therefore, the obligation to transfer is the primary restraint on the exercise of a superior court’s jurisdiction in interstate cases. On receiving a transferred proceeding, the transferee court is to deal with the proceeding as if the steps already taken in the transferring court had been taken in the transferee court.149 So, the transferee court takes up the proceeding where it was left in the transferring court. If, for example, pleadings had closed in the transferring court before the order for transfer was made, the parties need not undertake pleading again in the transferee court.150 As will be seen, the initial intention motivating the transfer procedure was that it should serve a similar function to the administrative allocation of litigation to a judge within a court by the court’s bureaucracy. The transfer was therefore, at first, seen as a ‘nuts and bolts management decision’151 that secured an allocation of litigation across the superior courts of the nation in a similar way. There is later High Court authority that emphasises the judicial character of the decision to transfer, and that therefore disagrees with its characterisation as an administrative decision.152 This still does not alter the scheme’s basic aim of securing an efficient allocation of the proceedings to the best-placed court in the federation. 4.60  Since the High Court’s decision in Re Wakim; Ex parte McNally153 a transfer cannot be made to the Federal Court or the Family Court of Australia where the proceedings concern matters arising under state or territory law that do not fall within the accrued jurisdiction of the relevant federal court.154 A transfer can still be made to a federal court in proceedings involving a relevant federal matter.155 Some state courts have been prepared to transfer a mixed state and federal matter to a federal court with the intent that, once the parties were in the federal court, they would test whether the proceedings could be

148. See 2.28–2.29; Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth); Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT); Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW); Jurisdiction of Courts (Cross-vesting) Act (NT); Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld); Jurisdiction of Courts (Cross-vesting) Act 1987 (SA); Jurisdiction of Courts (Cross-vesting) Act  1987 (Tas); Jurisdiction of Courts (Cross-vesting) Act  1987 (Vic); Jurisdiction of Courts (Cross-vesting) Act 1987 (WA). References in this chapter will be to either the federal Act or to the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), which is identical to the other state and territory legislation. Similar rules are found in other Australian legislation; for example, Corporations Act 2001 (Cth) Pt 9.6A, subdiv C. 149. See Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 11(3); Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) s 11(3). 150. Abrook v Paterson (1995) 58 FCR 293 at 296. 151. Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 714. 152. BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at 540, 565; [2004] HCA 61. 153. (1999) 198 CLR 511; [1999] HCA 27. 154. See 2.29–2.30. 155. Gargan v Gargan [1999] QSC 316.

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encompassed by federal accrued jurisdiction.156 This naturally requires the parties to argue the question of accrued jurisdiction, and probably defeats the cross-vesting scheme’s purpose of eliminating litigation over jurisdiction. It also risks an adverse decision on the question of accrued jurisdiction, in which case the parties must recommence in the state court. Wakim does not affect the power of a federal court to transfer to a Supreme Court, although the matter must first be within federal jurisdiction before the transfer can be made, as the federal court otherwise has no power to deal with the case even by transfer. If the matter is commenced within a federal court but is outside its jurisdiction, it cannot be transferred to a state or territory court. It must be commenced afresh in the relevant state or territory court, without any of the benefits of the Cross-vesting Act’s provisions by which all steps that have been taken in the first court are deemed to have been taken in the second court. 4.61  The application for a transfer of a proceeding may be made by one of the parties, or by the federal, state or territory Attorney-General. The court may also order the transfer on its own motion.157 However, just who bears the onus of proving that there are grounds to order a transfer is open to doubt. In the leading New South Wales case of Bankinvest AG v Seabrook,158 Rogers AJA held that a person who applied for a transfer did not carry any onus of proving that it ought to be made. Bankinvest has been influential in this and other respects, but there is a competing line of authority to the effect that the person who applies for a transfer does have the responsibility of persuading the court that there are grounds to make the order.159 Gummow J accepted this in the High Court’s decision in BHP Billiton Ltd v Schultz,160 and it is now generally accepted that there is no onus on the applicant for a transfer.161 In practice, it is most unlikely that a person would apply for a transfer without arguing grounds for the order. 4.62  The Cross-vesting Acts provide that there is no appeal from a judge’s decision to order a transfer, or from a judge’s refusal to do so.162 The rationale for this is the same as the policy underlying the courts’ directions in forum non conveniens applications that submissions should be short, and without reference to long lists of prior decisions on point.163 The question is about where to litigate, and litigation on that question should be minimised. However, the Commonwealth Constitution guarantees an appeal from decisions of Supreme Courts to the High Court of Australia.164 An appeal was taken to the

156. Foley v Farquharson [2003] FLC 93-126; [2003] QSC 021. 157. See  Jurisdiction of Courts (Cross-vesting) Act  1987 (Cth) s  5(7); Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 5(7). 158. (1988) 14 NSWLR 711 at 727. 159. Bourke v  State Bank of New South Wales  (1988) 85 ALR 61 at 76; Dawson v  Baker (1994) 120 ACTR 1 at 17–18; Paul v Mid Coast Meat Co Pty Ltd [1995] 1 Qd R 658 at 662. 160. (2004) 221 CLR 400; [2004] HCA 61 at [71]. 161. Taurus Funds Management Pty Ltd v  Aurox Resources Ltd [2010] NSWSC 1223 at [5]; Open Universities Australia Pty Ltd v The TAFE Commission [2017] VSC 617. 162. See Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 13(a); Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 13(a). 163. See 4.49–4.50. 164. See Commonwealth Constitution s 73(ii).

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High Court in BHP Billiton Ltd v Schultz, with the court accepting that, to the extent that they might suggest that no appeal would lie to the High Court, the Cross-vesting Acts were ineffective.166 The ban on appeals is nevertheless still effective for appeals to the federal, state and territory courts of first appeal. These courts have therefore only heard matters concerning transfers by means other than appeals. Thus, in Bankinvest v Seabrook167 the trial judge removed the matter to the New South Wales Court of Appeal on his own motion. The Full Court of the Family Court and a Full Court of the Supreme Court of the Australian Capital Territory have heard matters concerning transfers by special procedures allowing those courts to exercise original jurisdiction.168 The ban on appeals, while reinforcing that the decision to transfer should not be litigated at length, also made it more difficult to secure uniform interpretations of the transfer provisions of the Cross-vesting Acts even within single states. The New South Wales Court of Appeal’s decision in Bankinvest emerged early after the passage of the Cross-vesting Acts as a highly persuasive approach to transfers throughout the federation, and the High Court’s willingness to take the appeal in BHP Billiton Ltd v Schultz gave an authoritative interpretation of the transfer provisions that is binding on all Australian courts. 165

4.63  Section 5 of the Cross-vesting Acts sets out three circumstances in which an order for transfer can be made. These are: (1) the existence of related proceedings; (2) that the court is exercising cross-vested jurisdiction; and (3) the interests of justice. That a transfer must be in the ‘interests of justice’ is a prerequisite for the making of an order on the first two grounds, but it is completely sufficient for ordering a transfer on the third ground. This means that litigation about transfers centres on the question of whether it is in the interests of justice to make the order, as the additional requirements for a transfer on the first two grounds are, in practice, unnecessary to satisfy if the interests of justice alone would justify the order.

Related proceedings 4.64  Paralleling in broad terms the lis alibi pendens ground for stays of proceedings at common law discussed above,169 s 5 of the Cross-vesting Acts provides for a transfer of a proceeding where it ‘arises out of, or is related to, another proceeding’ pending in another superior court, and ‘it is more appropriate’ that the first proceeding be determined in the other court. The leading case in this connection is Bankinvest AG v Seabrook.170 4.65 In Bankinvest, there were related proceedings in New South Wales and Queensland. They both concerned loans that the plaintiff Swiss corporation had made in Sydney to a large number of Australian interests, companies and individuals. These were spread across New South Wales, Queensland, Victoria and Tasmania. The proceedings in the Supreme Court of New South Wales  were brought to recover money from a number of these companies and individuals under the loans and supporting guarantees. However, some 165. 166. 167. 168. 169. 170.

(2004) 221 CLR 400; [2004] HCA 61. At [55], [127], [214]. (1988) 14 NSWLR 711. Re Chapman and Jansen (1990) 13 Fam LR 853; Dawson v Baker (1994) 120 ACTR 1. See 4.53–4.54. (1988) 14 NSWLR 711.

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of the defendants in New South Wales were also plaintiffs in proceedings brought against Bankinvest in the Supreme Court of Queensland, and these partly rested on allegations of breaches of Queensland legislation. The Queensland proceedings did not involve many of the parties to the New South Wales proceedings, but did raise issues which were likely to be comprehended by the New South Wales proceedings. The trial judge in New South Wales, Rogers CJ Comm D, removed the matter to the Court of Appeal, which ordered a transfer of the New South Wales proceedings to the Supreme Court of Queensland. The plaintiff conceded that the proceedings in the two states were related, so the only issue was whether it was more appropriate that they be determined in the Queensland court. Here, Rogers AJA held that the Cross-vesting Act displaced the traditional rules of forum non conveniens, and prescribed different criteria for determining where the matter should be heard.171 The only ‘lodestar’ was what the interests of justice should dictate. In identifying this, assistance could be found in Lord Goff ’s speech in Spiliada and, in particular, the connecting factors he set out for establishing the natural forum.172 In this case, it was likely that the matter would be governed by the Queensland legislation — the alleged wrongful acts took place in Queensland, and most of the parties, witnesses and documents were in that state. There was also a cross-claim for negligence against Queensland solicitors. The only real connection with New South Wales was the location of Bankinvest’s office. In these circumstances, the Queensland court was the most convenient venue for the matter, and a transfer of the New South Wales proceedings was the only means of avoiding duplicate litigation. 4.66  For a transfer to be made on this ground, there must be some relationship between the two sets of proceedings. If the proceeding is to arise ‘out of ’ a proceeding pending in another court, the second proceeding must in some sense be a cause of the first. There must be some degree of association between the proceedings for them to be regarded as ‘related’.173

Cross-vested jurisdiction 4.67  The second ground on which a transfer may be ordered under s 5 arises where the transferring court is exercising cross-vested jurisdiction. Here, it is necessary to have regard to all of the following: • whether the transferring court would not have had jurisdiction in the proceeding but for its jurisdiction under the cross-vesting scheme or, in the case of the federal courts, but for an accrued jurisdiction; • whether the matter involves the application, interpretation or validity of another state’s or territory’s legislation or, in the case of the Supreme Courts, of federal legislation; and • the interests of justice. Once the court has had regard to these, it must determine whether it is more appropriate that the proceeding be heard in the other superior court. In Bankinvest, the New South Wales

171. Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 727–9. 172. See 4.34. 173. Re Hamilton-Irvine (1990) 94 ALR 428 at 432–3.

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Court of Appeal held that all three considerations were satisfied and that this was another ground justifying a transfer to the Supreme Court of Queensland.174

Interests of justice 4.68  The third ground recognised under s 5 on which a transfer can be made from one superior court to another is that ‘it is otherwise in the interests of justice that the relevant proceeding be determined’ in the other court. The ‘interests of justice’ is also a requirement of the related proceedings and cross-vested jurisdiction grounds of transfer,175 so if it is possible to order a transfer on those grounds it would be equally possible to order a transfer on this ground. Most applications for a transfer are made on this ground. As seen above, in Bankinvest v Seabrook176 the New South Wales Court of Appeal held that the interests of justice required the case to be transferred to Queensland. Street CJ held that a transfer was ‘a “nuts and bolts” management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute’.177 His Honour (agreeing with Rogers AJA) rejected any reference to the doctrine of forum non conveniens as it had developed in Australia.178 In deciding whether or not to transfer, Rogers AJA held that ‘the relevant matters and considerations are essentially the same as were specified by the House of Lords in Spiliada’. Although the High Court had held that it was inapplicable in applications for a stay or dismissal of proceedings, Spiliada had ‘already, in effect, been made applicable in Australian courts in relation to transfers between Supreme Courts by the various Australian Parliaments’.179 4.69  Bankinvest therefore governed the circumstances in New South Wales in which a transfer could be made to another court — whether federal, state or territory. The ban on appeals naturally made it more difficult to develop a common approach across participating courts, but the logic, practicality and cooperative ethos of the Bankinvest principles led to their adoption in most of the other state Supreme Courts, the Federal Court and the Family Court of Australia.180 The Supreme Court of the Australian Capital Territory presented an early challenge to Bankinvest by holding that the decision to transfer should be conditioned

174. 175. 176. 177. 178. 179. 180.

(1988) 14 NSWLR 711 at 730. See 4.64–4.67. (1988) 14 NSWLR 711; see also 4.65. At 714. At 714, 730. At 730. Midland Montagu Australia Ltd v O’Connor (1992) 2 NTLR 86; Swanson v Harley (1995) 102 NTR 25; Pegasus Leasing Ltd v Tieco International (Australia) Ltd (1993) 61 SASR 195; Pegasus Leasing Ltd v Balescope Ltd (1994) 63 SASR 51; McEntee v Connor (1994) 4 Tas R 18; Vic: Linter Group Ltd (in liq) v Price Waterhouse (1992) 2 ACSR 346; Taylor v Trustees of Christian Brothers [1994] Aust Torts Reps 81-288; Schmidt v Won [1998] 3 VR 435; Trade Practices Commission v Collings Construction Co Pty Ltd (1994) 53 FCR 137; Pegasus Leasing Ltd v  Cadoroll Pty Ltd (1996) 59 FCR 152; Roff v  Aqua Distributors Pty Ltd [1996] 966 FCA 1; Buckley v  Gibbett [1996] 836 FCA 1; Charter Pacific Corp Ltd v  Commonwealth Scientific & Industrial Research Organisation [1998] FCA 1362; Activate No 1 Pty Ltd v Equuscorp Pty Ltd [1999] FCA 619 at [12]; Dockpride Pty Ltd v Subiaco Redevelopment Authority [1999] FCA 133 at [11]–[13]; cf Tribond Developments Pty Ltd v Attorney-General of South Australia [1997] FCA 106; Chapman v Jansen (1990) 13 Fam LR 853 at 855, 858–61, 869, 870.

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by the Australian principles of forum non conveniens,181 which meant that a court would only transfer proceedings if it found that it was itself a clearly inappropriate forum for dealing with them. However, by 1994, a Full Court of the Australian Capital Territory Supreme Court spurned this earlier approach and adopted principles akin to those of Bankinvest.182 That isolated the Western Australian Supreme Court, which had consolidated its refusal to recognise the Bankinvest principles for allocating jurisdiction. It consistently took the view that ‘the interests of justice’ did not imply appropriateness as a condition for transfer, and, not without inconsistency, considered that the principles of forum non conveniens needed to be satisfied before a transfer could be made.183 The Western Australian judges were aware that their approach was idiosyncratic, but consciously refused to align their approach with Bankinvest.184 Only with the decision of the High Court in BHP Billiton Ltd v Schultz185 was this difference in approach resolved. 4.70 In BHP Billiton Ltd v  Schultz, the plaintiff suffered from asbestosis, which he claimed to have resulted from exposure to asbestos when he worked for BHP at Whyalla in South Australia. BHP was incorporated in Victoria, but carried on business in South Australia and New South Wales. There were other defendant companies, incorporated in the United Kingdom, the Australian Capital Territory and New South Wales. Although the plaintiff lived in South Australia and the wrongs were alleged to have taken place there, he brought claims against the defendant companies in the New South Wales Dust Diseases Tribunal. The tribunal had jurisdiction to deal with claims relating to dust-related conditions, and was recognised as having developed a ‘particular experience and facility in dealing with dust disease claims’. It could sit outside the state, and it had sat in South Australia. In Schultz, liability was not in issue and it was accepted that, in the tribunal, the law of South Australia would govern the question of BHP’s potential liability to the plaintiff. However, under the Dust Diseases Tribunal Act 1989 (NSW) the tribunal could award a conclusive judgment for damages for a plaintiff ’s medical condition, but also later, though still conclusive, judgments for subsequent and ensuing medical conditions. This was likely to be advantageous to the plaintiff, where a conclusive judgment for damages in South Australia would have to take into account the progress of the condition. Any interim award for damages in South Australia might have to be repaid if it turned out to be more than the final judgment justified, whereas the conclusive character of the first judgment in the Dust Diseases Tribunal would preclude any repayment by the plaintiff. There were also more significantly limited rights of appeal in New South Wales than was the case in South 181. Waterhouse v Australian Broadcasting Corp (1989) 86 ACTR 1. 182. Dawson v Baker (1994) 120 ACTR 11. The only reservations that the court in Dawson v Baker had about the Bankinvest approach was that ‘the interests of justice’ condition for a transfer did not always turn on ‘appropriateness’: at 22. A similar change in thinking took place in the Queensland Supreme Court: cf Paul v Mid Coast Meat Co Pty Ltd [1995] 1 Qd R 658; Ropat Pty Ltd v Scarfe [1999] 2 Qd R 102; Hub Capital Pty Ltd v Challock Pty Ltd [1999] 2 Qd R 588; World Firefighters Games Brisbane, 2002 v World Firefighters Games Western Australia (2001) 161 FLR 355; [2001] QSC 164. 183. Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd [1990] WAR 531; Platz v Lambert (1994) 12 WAR 319; Douglas v Philip Parbury & Associates [1999] WASC 15 at [19]–[24]; Whyalla Refineries Pty Ltd v Grant Thornton (a firm) (2001) 182 ALR 274; [2001] WASC 49. 184. Anderton v Enterprising Global Group Pty Ltd [2003] WASC 67 at [28]–[31]. 185. (2004) 221 CLR 400; [2004] HCA 61.

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Australia. As is possible under the Cross-vesting Act’s transfer provisions, BHP applied to the Supreme Court of New South Wales to have the proceedings removed from the tribunal to the Supreme Court, and then transferred to the Supreme Court of South Australia. Sully J in the New South Wales Supreme Court refused to remove and transfer the proceedings to South Australia. Leave to appeal to the High Court having been granted, a majority of the court (Gummow, Kirby, Hayne and Callinan JJ) ordered the removal and transfer to the South Australian Supreme Court. The remaining judges (Gleeson CJ and McHugh and Heydon JJ) agreed with the majority’s principles, but would have had the question remitted to the New South Wales court for reconsideration. 4.71  The most significant aspect of the decision in Schultz was that a majority of the judges  — Gleeson CJ and McHugh, Heydon and Kirby JJ — explicitly accepted that Bankinvest v Seabrook represented the correct approach to the question of a transfer under the Cross-vesting Acts.186 Gummow J (with whom Hayne J agreed) endorsed Nygh’s analysis of the transfer provisions187 that rested on the Bankinvest approach,188 and Callinan J adopted precisely the same principles. This makes the Spiliada search for the ‘the more appropriate forum’ the governing objective in transfer proceedings. As Gleeson CJ and McHugh and Heydon JJ held:189 There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first [transferring] court is a ‘clearly inappropriate forum’. It is both necessary and sufficient that, in the interests of justice, the second [transferee] court is more appropriate.

The term ‘natural forum’ which Lord Goff had used in Spiliada was freely applied to the Australian court that should keep, or receive, the proceedings after a judge’s consideration of a transfer application.190 This means that no more weight is to be given to the plaintiff ’s choice of court than to the defendant’s preference for a different court — a rejection of the application of the more plaintiff-oriented Voth principles. As Gleeson CJ and McHugh and Heydon JJ said: ‘The interests of justice are not the interests of one party, and there may be interests wider than those of either party to be considered’.191 Their Honours explicitly endorsed the factors set out in Spiliada as relevant to the question of transfer. These include the availability of witnesses, the places where the parties respectively reside or carry on business, and the law of the cause, although the range of other considerations was ‘legion’ and the weight to be given to each in a given case could vary.192 If the parties lived in different states, the residence of the parties might not be so determinative of the natural forum. The comparative cost, expense and convenience of the different courts seemed to be accepted as relevant considerations to account for in transfer proceedings.193

186. 187. 188. 189. 190. 191. 192. 193.

At [12]–[14], [162]. P Nygh, ‘Choice of Law Rules and Forum Shopping in Australia’ (1995) 6 Public Law Review 237 at 243–4. BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [76]. At [14]. At [20], [109], [163], [259]. At [15]. At [18]. At [19].

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4.72  The majority’s order to remove and transfer the proceedings in Schultz rested on their conclusion that the Supreme Court of South Australia was the natural forum for the litigation. A significant factor was that, in rejecting BHP’s application for a removal and transfer of the proceedings, the trial judge had given decisive weight to the plaintiff ’s choice of forum, and the advantages that the Dust Diseases Tribunal Act gave to the plaintiff.194 Gleeson CJ and McHugh and Heydon JJ thought that, as this indicated a preference for the plaintiff ’s choice of forum over the search for the more appropriate forum, there was a material error in the judgment.195 These factors were also influential in the other judgments,196 but which concluded further that the Supreme Court of South Australia was the more appropriate or ‘natural’ forum. Gummow and Hayne JJ found that, as all other factors were evenly balanced, the transfer should be made to South Australia, as it provided the law of the cause.197 Both Kirby and Callinan JJ accepted that the court in the place of the wrong would be the natural forum,198 which made the South Australian court the more appropriate forum. 4.73  As has been seen, as applied in England, the Spiliada principles have led courts to the more specific principle that, in multi-state tort litigation, a court in the place of the tort is prima facie the natural forum for the litigation.199 Similar, though not completely identical, principles seemed to have emerged in transfer applications in Australia with the adoption of the Spiliada approach through Bankinvest and Schultz. Callinan J in Schultz gave the clearest endorsement of the English approach, when stating that the ‘natural forum’ would ‘in most cases mean the jurisdiction in which the tort was committed’.200 His Honour noted that it was also likely that the place of the tort was a place with which most parties had, and would continue to have, a presence, and would give a proximate court that could deal with the dispute quickly and with savings in costs and expense.201 Kirby J also said that the natural forum will usually be the place of the wrong.202 Gummow J (with whom Hayne J agreed) treated the state that gave the law of the cause as the decisive consideration for a transfer in Schultz,203 and in tort cases this would be the state where the tort occurred.204 However, Gummow J’s approach does not begin with the place of the tort as the preferred natural forum, but as the critical consideration favouring South Australia in the case in hand. While Gleeson CJ and McHugh and Heydon JJ also identified the law of the cause as an important consideration to weigh, they noted that ‘New South Wales might well be the “natural forum” for an action for damages brought by a passenger in a motor vehicle if they were both residents of New South Wales, even though the injury resulted from a collision

194. 195. 196. 197. 198. 199. 200. 201. 202. 203. 204.

At [69]. At [25], [29]. At [69], [167]–[170], [258]. At [100]. At [170], [259]. See 4.36. (2004) 221 CLR 400; [2004] HCA 61 at [259]. At [259]. At [170]. At [100]. See 18.10.

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that occurred on the other side of the Queensland or Victorian border’. Accordingly, most of the judges in Schultz treated the place of the tort as one, albeit a most significant and weighty, consideration to be taken into account when deciding whether or not to transfer proceedings, and only Kirby and Callinan JJ would begin with a court in the state where the tort occurred as prima facie the natural forum. 205

4.74  In transfers under the Cross-vesting Acts, the choice of court made by the parties under an exclusive jurisdiction clause is merely ‘a relevant consideration’, having regard to the need to hold the parties to their contractual obligations, and therefore may be less decisive than in an international case.206 In World Firefighters Games Brisbane v World Firefighters Games Western Australia Inc,207 the parties agreed by contract to arrangements for the staging of ‘The World Firefighters Games’ in Brisbane in 2002, but also to submit to the exclusive jurisdiction of the Western Australian courts in relation to any disputes under the contract. The parties had been in dispute over these arrangements for two years before the applicant sought urgent injunctive relief in the Supreme Court of Queensland in 2002. The respondent then sought a transfer of the proceedings to the Supreme Court of Western Australia, but had to overcome significant connections with Queensland, including the location in the state of the lawyers, most of the witnesses and most of the relevant documents. The dispute related to events in Brisbane. However, the exclusive jurisdiction clause was apparently the decisive factor in Philippides J’s order to transfer the matter to the Western Australian court. In general, her Honour considered that one should not begin with the ‘strong bias’ that the common law had given to the forum chosen by the parties in an exclusive jurisdiction clause, but that under the Cross-vesting Acts it remained a relevant consideration ‘on the basis that the “interests of justice” require that due acknowledgement be accorded to such a clause as representing the bargain between the parties and that proper regard be given to the need to hold parties to their bargain.’208 In World Firefighters in particular, the fact that the parties had agreed to the exclusive jurisdiction of the Western Australian courts while conscious of all of the connections that their arrangements had with Queensland made the clause an even weightier factor in the decision to transfer.209 Many subsequent cases have endorsed the analysis taken by Philippides J in World Firefighters. But in several cases, the courts have not enforced exclusive choices of other state and territory courts,210 and nonexclusive choices are even less likely to be determinative in transfer applications.211 205. (2004) 221 CLR 400; [2004] HCA 61 at [18]. Although, given that the Victorian and Queensland capitals are closer to the New South Wales border than Sydney, it will often be more convenient to try proceedings in the former states: see, for example, Amor v Macpak Pty Ltd (1989) 95 FLR 10. 206. See 4.11–4.31. 207. (2001) 161 FLR 355; [2001] QSC 164. 208. At 364–5. Cf Stammbach v MBD Energy Ltd, in which Brereton J observed that in an application for a transfer of proceedings under the cross-vesting legislation, ‘it is not a question of giving contractual effect to [the jurisdiction] clause, but simply of taking the agreement of the parties reflected in it as one amongst several factors that indicate some greater connection with Victoria than with NSW’: [2014] NSWSC 807 at [21]. 209. (2001) 161 FLR 355; [2001] QSC 164 at 369. 210. River Gum Homes Pty Ltd v Meridian Pty Ltd [2010] QCA 293 at [20] (the exclusive jurisdiction clause is ‘relevant, but subject to other considerations bearing on the comparative convenience of litigating in the competing jurisdictions’). 211. Plantagenet Wines Pty Ltd v Lion Nathan Wine Group Australia Ltd (2006) 229 ALR 327; [2006] FCA 247; Gresham Property Investments Ltd v  Global Consulting Services Pty Ltd [2016] NSWSC 415. Cf Monash

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Forum non conveniens 4.75  The question has arisen whether, in proceedings that have an interstate element, an Australian court is able to stay proceedings at common law under the principles of Voth v Manildra Flour Mills Pty Ltd.212 It seems that, while the superior courts could still technically use the power to stay or dismiss proceedings on forum non conveniens grounds to relocate litigation to another Australian court, the transfer provisions of the Cross-vesting Acts have effectively ‘ousted’ the application of the common law principles in interstate cases. In Schmidt v Won,213 the Victorian Court of Appeal unanimously held that Voth ‘should be considered as having no continued practical application’ where the exercise of jurisdiction between the state and territory Supreme Courts was concerned. The ‘ordinary remedy’ of a party in one state served with initiating process of the Supreme Court of another state was to seek a transfer of the proceedings under the Cross-vesting Acts. Only in cases that were in the traditional sense frivolous, vexatious or oppressive, or an abuse of the process of the court, should a stay or dismissal of interstate proceedings be sought.214 The approach taken in Schmidt v Won has been adopted in other states.215 A stronger approach was taken by Perry J in the Supreme Court of South Australia in Pegasus Leasing Ltd v Balescope Pty Ltd,216 where it was considered that Voth was limited to international cases. In practice, it should be easier for a defendant to succeed in an application to transfer proceedings than in an application for a stay under the Voth principles, so a well-advised defendant would always apply for transfer under the cross-vesting legislation rather than for a stay under the principle of forum non conveniens.

Interstate proceedings in intermediate and inferior courts Transfer of proceedings 4.76  The Cross-vesting Acts do not apply to the intermediate and inferior courts. However, there is effectively provision for a transfer from an inferior court to be channelled through the relevant state or territory Supreme Court. Under s 8(1) of the Cross-vesting Acts, there are two cases where a proceeding in an inferior court in a state or territory can be removed to the Supreme Court, and transferred by the Supreme Court to the Federal Court, the Family Court of Australia, the Family Court of Western Australia or the Supreme Court of another state or territory. First, this may occur when the proceeding in the inferior court arises out of, or is related to, another proceeding that is pending in one of those other superior courts. Second, this may occur when it appears to the Supreme Court that it should

212. 213. 214. 215.

216.

IVF Pty Ltd v  Burmeister (No 2), in which it was held that the non-exclusive choice of the New South Wales courts (together with a choice of NSW law) carried ‘substantial weight’: [2017] NSW 903 at [25]. (1990) 171 CLR 538; see also 4.32–4.47. [1998] 3 VR 435. At 453–4. James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353; World Firefighters Games Brisbane v  World Firefighters Games Western Australia Inc (2001) 161 FLR 355 at 362; [2001] QSC 164; McEntee v Connor (1994) 4 Tas R 18 at 24; Douglas v Philip Parbury & Associates [1999] WASC 15 at [17]; River Gum Homes Pty Ltd v Meridian Pty Ltd [2010] QCA 293. (1994) 63 SASR 51 at 56.

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give consideration to the transfer of the proceeding in the inferior court. In either case, if the proceeding is removed to the Supreme Court it is treated as a proceeding that is pending in that court, and can be transferred to the Federal Court, the Family Court of Australia, the Family Court of Western Australia or another Supreme Court in accordance with the powers that the Supreme Court has under s 5 of the Cross-vesting Acts.217 The second of these cases was that considered by the High Court in BHP Billiton Ltd v Schultz,218 where the proceedings were removed from the New South Wales Dust Diseases Tribunal to that state’s Supreme Court, and then transferred to the Supreme Court of South Australia.219

Stays of proceedings 4.77  For intermediate and inferior courts, the primary source of restraint on the exercise of a jurisdiction properly established is s  20(3) of the Service and Execution of Process Act 1992 (Cth). This provides: … the court may order that the proceeding be stayed if it is satisfied 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.

4.78  The legislation lists ‘matters’ that the court may consider in determining whether an interstate court is the appropriate court for the proceeding, which include: the places of residence of the parties and of any witnesses; the place where the subject matter of the proceeding is situated; the financial circumstances of the parties; any forum clause; the law of the cause; and whether a related or similar proceeding has been commenced.220 4.79  There are cases in which judges have suggested that the stay be granted only where the first court is a clearly inappropriate forum.221 However, in Valkama v Jamieson,222 Blaxell DCJ added that ‘[a]rguably … this principle should also extend to situations where the other Australian tribunal is the “more appropriate” one’.223 In an obiter dictum in BHP Billiton Ltd v Schultz,224 Gummow J noted that s 20(3) explicitly states that no weight should be given to the plaintiff ’s choice of court. This presumably means that, as in transfers made in the interests of justice between superior courts, the search is for the more appropriate forum, and the common law principles favouring the plaintiff ’s choice of court have no application. This is certainly the trend in the reported cases.225

217. See 4.59–4.74. 218. (2004) 221 CLR 400; [2004] HCA 61. 219. See  4.70–4.72. See also James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353; Simonfi v Fimmel [2000] ACTSC 54 at [1]. 220. See  Service and Execution of Process Act  1992 (Cth) s  20(4). This list is not exhaustive of the relevant considerations: St George Bank Ltd v McTaggart [2003] 2 Qd R 568; [2003] QCA 059 at [11]. 221. Kontis v Barlin (1993) 115 ACTR 11 at 21–2; Valkama v Jamieson (1994) 11 SR (WA) 246 at 249; Daralievski v Transport Accident Commission [2003] SADC 30 at [12]–[14]. 222. (1994) 11 SR (WA) 246. 223. See also St George Bank Ltd v McTaggart [2003] 2 Qd R 568; [2003] QCA 059 at [11]. 224. (2004) 221 CLR 400; [2004] HCA 61 at [75]. 225. Workcover Corp v Pross Chiyoda Pty Ltd [1999] SAWCT 86; Programmed Maintenance Services Ltd v Shell Co of Australia Ltd [2000] QDC 249; Fertico v Murray River Corn [2002] SADC 89 at [20].

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4.80  Although s 20(3) only empowers the inferior court to grant a stay of proceedings, the court does have power under s 20(5) to make the order subject to any ‘conditions it considers just and appropriate in order to facilitate determination of the matter in issue without delay or undue expense’. Naturally, if the court has decided that another court is ‘the appropriate court’ to hear and determine the proceeding, those conditions will often require the parties to pursue the proceeding in that second court. This can ultimately have the same effect as a transfer of the proceeding.226

Restraining proceedings in another court 4.81  The principles by which a court in Australia restrains proceedings otherwise brought properly before it provide one means by which the question about where to litigate can be resolved. An alternative means of resolving this question is for the court to exercise powers by which it can restrain the conduct of proceedings in a foreign court. This is achieved by the issue of an ‘anti-suit injunction’. The anti-suit injunction is descended from orders by which the Court of Chancery restrained a person within its jurisdiction from pursuing litigation in a common law or ecclesiastical court, on the ground that the court considered the conduct of the proceeding to be in breach of equitable principles. In Australia, injunctions of this kind were also the means by which Supreme Courts (on the one hand) and federal courts (on the other) restrained proceedings in each other that were considered to encroach on the restraining court’s own jurisdiction. The Cross-vesting Acts have largely removed the need for this to occur, though not as completely as might be hoped.227 In all of these cases, the restraining court does not issue an injunction against the other court. It issues an injunction directly against the person who is the plaintiff in the proceeding in the other court, so long as that person is within the jurisdiction of the restraining court. It is contempt of the restraining court for that person to continue the litigation, and normal processes of contempt, such as imprisonment or sequestration, can follow if the proceeding is not discontinued. However, this means that the indirect result of an anti-suit injunction is that it strikes at the jurisdiction of the other court. The restraining court resolves the question about where to litigate in its own favour, but this makes the anti-suit injunction an extraordinary remedy that should only be granted after the most cautious consideration of the issues.

Restraining proceedings in a foreign court 4.82  The principles by which an anti-suit injunction is ordered were discussed by the High Court in CSR Ltd v Cigna Insurance Australia Ltd.228 In this case, CSR (an Australian company), CSR America (a United States subsidiary company) and other related companies brought proceedings against Cigna Corporation (a United States company), Cigna Australia (its Australian subsidiary) and related companies, in the United States District Court in New Jersey in June 1995. The New Jersey proceedings alleged that the Cigna companies 226. Valkama v Jamieson (1994) 11 SR (WA) 246 at 250. 227. See 4.92. 228. (1997) 189 CLR 345.

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were obliged to indemnify the CSR companies for loss the latter suffered as a result of liabilities they incurred for asbestos-related injuries to third parties. They also alleged breaches of the Sherman Act (the United States federal anti-trust law) and of the New Jersey anti-trust law. Under the Sherman Act, a successful plaintiff could recover treble damages. In July 1995, Cigna Australia commenced proceedings against CSR and CSR America in the Supreme Court of New South Wales. These were for a negative declaration: that is, that Cigna was not liable to indemnify the CSR companies in respect of liabilities incurred as a result of any asbestos-related claims made in either Australia or the United States. Soon after, Cigna Australia applied in the Supreme Court for an interlocutory anti-suit injunction restraining the CSR companies from continuing the New Jersey proceedings. This was granted by Rolfe J in August. The CSR companies then applied to Rolfe J for a stay of the New South Wales proceedings on the ground of forum non conveniens. This was refused in April 1996. The CSR companies’ appeals to the Court of Appeal were dismissed; however, subsequent appeals to the High Court were allowed by a majority comprising Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ. Brennan CJ dissented. 4.83  The majority of the High Court in CSR held that the New South Wales proceedings should, pending the outcome of the New Jersey proceedings, be stayed on the ground that they were oppressive. The purpose of the New South Wales proceedings had been to prevent the New Jersey proceedings from continuing. The corollary to this conclusion was that the anti-suit injunction should not have been ordered. The New Jersey proceedings could not be considered vexatious or oppressive, especially in light of the special damages available to the CSR companies under the Sherman Act. 4.84  The majority in CSR held that the principles relating to the granting of an injunction against a proceeding in a foreign court should be tempered by considerations of comity.229 Since an anti-suit injunction indirectly interferes with the foreign proceeding, it can be interpreted as a breach of international comity between courts. Hence the remedy is only granted cautiously. This underlies the procedure the majority in CSR prescribed for applications for anti-suit injunctions, and the grounds on which they can ultimately be awarded. There is no more specific role for comity in the grant of anti-suit injunctions, in the formulation of other principles or by assessing, in a given case, whether international comity would be undermined by the grant of a particular injunction. It has been suggested that, in every case, the court should assess whether the violation of comity likely to be caused by the granting of the particular injunction being sought is warranted.230 There are further suggestions that comity should require that the processes of contempt should not follow a breach of an anti-suit injunction, but instead either that damages should be available for wrongly (from the forum’s perspective) continuing the foreign proceedings or that a foreign judgment made in breach of the forum’s anti-suit injunction simply not be enforceable in the forum. An alternative is that comity would suggest that damages be awarded instead of an anti-suit injunction altogether.231 These ideas have not been incorporated into Australian law. 229. CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 395–6. 230. Cf D Tan, ‘Anti-Suit Injunctions and the Vexing Problem of Comity’ (2005) 45 Virginia Journal of International Law 283 at 313. 231. Tan, above n 230, at 341–55; P Gross, ‘Anti-Suit Injunctions and Arbitration’ [2005] Lloyd’s Maritime and Commercial Law Quarterly 10 at 24–7.

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4.85  Where there are proceedings in the forum and the foreign place, the majority in CSR indicated that a number of steps be taken before an anti-suit injunction could be considered:232 • the forum court should first consider whether it should restrain the exercise of its own jurisdiction; • if the forum court decides that it should exercise its own jurisdiction, then it must consider whether to: – require the plaintiff in the local proceedings to apply to the foreign court for a stay or dismissal of the foreign proceedings; or – grant the anti-suit injunction. 4.86  The procedure shows the relationship between the doctrine of forum non conveniens and the granting of anti-suit injunctions. The central issue is where the matter in dispute between the parties is to be decided — in the forum or foreign court. In Australia, the forum court must first examine its own jurisdiction by determining, in accordance with Voth v Manildra Flour Mills Pty Ltd,233 whether it is a clearly inappropriate forum. If it does reach this conclusion, the question about where to litigate is answered in favour of the foreign court. Thus, as in CSR, if the purpose of the proceeding in the forum is merely to prevent legitimate proceedings in the foreign court being continued, then the proceeding in the forum will be oppressive and the forum court a clearly inappropriate forum. On the other hand, if the court finds that it is not a clearly inappropriate forum then the question arises as to how the jurisdiction of the foreign court is to be dealt with. In CSR, it was argued that, as a general rule, an anti-suit injunction should be refused until the plaintiff in the forum has applied to the court in the foreign place for a stay or dismissal of the foreign proceedings.234 However, the majority in CSR held that, while this might be desirable in some cases, it could not be required in all. If the court believes it appropriate to consider whether to grant the anti-suit injunction, the approach is the same as for other interlocutory injunctions.235 There is, nevertheless, a significant difference between an anti-suit injunction on the one hand, and other interlocutory injunctions on the other. The anti-suit injunction is effectively a final decision about where the litigation is to be conducted, where other interlocutory injunctions are intended to maintain the status quo between the parties until a final decision is made.236 4.87  The grounds on which an anti-suit injunction can be granted spring from two sources.237 First, the court has an inherent power to protect the integrity of its own process, and an injunction can be granted in any circumstances where that is required to provide that protection. So, if the foreign proceedings interfere or tend to interfere with proceedings in the forum court, grounds exist to restrain the proceedings in the foreign  court.238 232. 233. 234. 235. 236. 237. 238.

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 395–401. (1990) 171 CLR 538; see also 4.39–4.46. Cf Amchem Products Inc v British Columbia (WCB) [1993] 1 SCR 897 at 931. (1997) 189 CLR 345 at 396. At 397. See M Douglas, ‘Anti-suit Injunctions in Australia’ (2017) 41 Melbourne University Law Review 66. National Mutual Holdings Pty Ltd v Sentry Corp (1989) 22 FCR 209 at 232.

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Second, there is a separate equitable jurisdiction to grant an anti-suit injunction. Here, an injunction may be granted if the foreign proceedings amount to unconscionable conduct, the unconscientious exercise of a legal right, or breach of a legal or equitable right. Thus, commencing proceedings in the foreign court in breach of an exclusive jurisdiction clause favouring the courts of the forum is breach of a legal right (in contract) that can be appropriately enforced by an anti-suit injunction.239 There are also grounds in equity to grant the injunction where the foreign proceedings amount to vexation or oppression.240 The mere fact that there are parallel proceedings in the foreign place does not make them vexatious or oppressive.241 However, where the foreign proceedings correspond completely to the proceedings in the forum, in the sense that there is no material benefit for the plaintiff in the foreign proceedings, there are good reasons to assume that the proceedings are merely commenced in order to vex or oppress.242 In such a case, an anti-suit injunction can be granted. In CSR Ltd v Cigna Insurance Australia Ltd,243 the fact that the New Jersey proceedings involved claims for treble damages under the Sherman Act that were not available in New South Wales helped to show that they were not vexatious or oppressive. 4.88  If the plaintiff to foreign proceedings cannot show that they have a legitimate interest in taking the foreign proceedings, this is likely to establish that the foreign proceedings are vexatious and oppressive.244 In Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 1), Croft J took into account that the defendants to foreign proceedings had no assets in the foreign jurisdiction against which any judgment might be enforced.245

Applying for a stay in the foreign court 4.89 The CSR principles were developed from those already stated by the Privy Council in Société Nationale Industrielle Aerospatiale v  Lee Kui Jak246 and the Supreme Court of Canada in Amchem Products Inc v British Columbia (WCB).247 They were further developed by the House of Lords in Airbus Industrie GIE v Patel.248 As Lord Goff emphasised in the SNI appeal, the jurisdiction to grant an anti-suit injunction is one that should be exercised with caution.249 This last principle is one that has preoccupied the various courts, and rests on the idea of ‘comity’ — the forum court’s recognition of the legitimate authority of a foreign court within its own borders, and the rights of its citizens and of those protected by the laws it administers.250 This has procedural consequences, and one of these is that the plaintiff 239. Continental Bank NA v  Aeokas Compania Naviera SA [1994] 2 All ER 540; Ace Insurance Ltd v  Moose Enterprises Pty Ltd [2009] NSWSC 724. 240. Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871. 241. Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225 at 234. 242. Carron Iron Co v Maclaren (1855) 5 HLC 416 at 437; 10 ER 961 at 970; Bank of Tokyo v Karoon [1987] 45 at 60. 243. (1997) 189 CLR 345. 244. Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237 at [461]. 245. [2012] VSC 1 at [36], [53]. 246. [1987] AC 871. 247. [1993] 1 SCR 897. 248. [1999] 1 AC 119. 249. [1987] AC 871 at 892. 250. CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 395–6; cf 4.86.

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may have some obligation to use the processes of the foreign court to end proceedings there. In Amchem, Sopinka J held that it was ‘preferable’ that the plaintiff first apply for a stay of proceedings (or its equivalent) in the foreign court before being allowed to seek an anti-suit injunction in the local court.251 The rationale is that, so far as comity between courts is concerned, it is better that a foreign court make a decision about the suitability of proceedings before it than that the local court impose its will on the foreign court. The point was developed further by the majority in CSR. Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ pointed out that, even in Amchem, it was not thought to be a ‘general rule’ that a plaintiff be required first to apply in the foreign court for a stay of the foreign proceedings. Nor could it be, when the different circumstances in which an interlocutory injunction could be granted were taken into account. The CSR majority thought that this step could not be expected when the injunction was granted to protect the integrity of the local court’s processes or when the defendant had brought proceedings in the foreign court in breach of contract.252 However, they added that ‘[t]here may be cases — for example, cases based on contentious or novel claims of unconscionable conduct — in which it is appropriate or desirable that an anti-suit injunction not be granted until an application has been made for a stay or dismissal of the foreign proceedings’.253 So, whether there is a requirement that the local plaintiff should apply for a stay of the foreign proceedings before applying for an anti-suit injunction in the forum depends on the circumstances of the case. Nevertheless, Bell and Gleeson have expressed scepticism as to whether the prerequisite that the applicant should apply for a stay in the foreign court exists at all.254 They have argued, in the first place, that this duty rested on tenuous or false assumptions, amongst which they included the widespread belief that the foreign court is insulted when proceedings before it are restrained.255 Further, they suggest that the plaintiff cannot be expected to apply for a stay where the relevant foreign court does not have a doctrine of forum non conveniens.256 Nevertheless, the CSR formulation of this duty accounts for this possibility. A third consideration raised by Bell and Gleeson is that the application for a stay of proceedings on the ground of forum non conveniens can sometimes be regarded as an act of submission to the jurisdiction of the foreign court. If so, the making of the application itself can, if the foreign court rejects it, result in the judgment of the foreign court becoming enforceable in the forum.257 This is not, however, the case in an Australian forum, as the Australian principles for the recognition of a foreign judgment do not consider that an [1993] 1 SCR 897 at 931. (1997) 189 CLR 345 at 396. At 397. A S Bell and J Gleeson, ‘The Anti-suit Injunction’ (1997) 71 Australian Law Journal 955 at 968. See QBE Insurance (Aust) Ltd v Hotchin (administrator of the estate of Hotchin (dec’d)) [2011] NSWSC 681 at [17]. 255. Bell and Gleeson, ibid at 968. Certainly, the foreign court’s awareness of proceedings before it is often overstated. The injunction can require a discontinuance of proceedings that, so far as the foreign court’s administration is concerned, is indistinguishable from a discontinuance brought because the litigation is compromised before trial. However, where proceedings have been before the court for some period, judges have openly expressed irritation at the effect of a foreign anti-suit injunction: Laker Airways v  Sabena, Belgian World Airlines 731 F 2d 909 at 939–42 (1984); Amchem Products Inc v Workers’ Compensation Board (1989) 42 BCLR (2d) 77 at 102–5. 256. Bell and Gleeson, above n 254 at 968. 257. At 969. 251. 252. 253. 254.

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application for a stay of proceedings in the foreign court amounts to a submission to the jurisdiction of the foreign court.258

Exclusive jurisdiction clauses 4.90  Whether the parties have agreed to an exclusive jurisdiction clause that encompasses the issues in dispute in the litigation is relevant also in an application for an anti-suit injunction. If an exclusive jurisdiction or arbitration clause provides for the dispute to be dealt with in the forum, there will undoubtedly be stronger reasons for the forum court to issue an anti-suit injunction against the continuation of foreign proceedings brought in breach of the clause.259 Indeed, the injunction will ordinarily issue to restrain the breach of contract unless the defendant can show strong reasons why it should not.260 Further, even if the jurisdiction clause is not exclusive, if the continuation of the foreign proceedings is for some other reason in breach of a contractual agreement between the parties, the same principles will apply.261 4.91  Proceedings brought in Australia can, of course, be the object of a foreign anti-suit injunction. While parties that continue Australian litigation in breach of a foreign anti-suit injunction will not, for that reason, be exposed to the contempt processes of the relevant Australian forum, they might well be subject to contempt proceedings and penalties under the law of the foreign place. In Commonwealth Bank of Australia v White,262 Byrne J found that there was good reason for proceedings against Lloyd’s, the English insurer, to continue in Victoria, even though the proceedings were brought in breach of an exclusive jurisdiction clause in favour of the English courts. However, the High Court of England and Wales was not satisfied that there were good reasons to continue proceedings in Victoria, and granted an anti-suit injunction against White, the plaintiff in Victoria, to restrain the Victorian proceedings. Attempts were then made by Lloyd’s to have the Victorian proceedings stayed. One reason given was to show comity to the English court, and its decisions that there were no good reasons to litigate in Victoria in breach of the contract and to grant the anti-suit injunction. In the Victorian Supreme Court, Warren J held that the stay should be refused. Comity did not require it, especially as the anti-suit injunction emerged because the English and Victorian courts had disagreed as to whether there were good reasons to bring proceedings in breach of the exclusive jurisdiction clause, and it was appropriate that the Victorian court prefer its own decision. There were also remedies available in Australia that English law had not been proved to provide.263 The refusal of the stay, nevertheless, would be no defence to English proceedings for breach of the injunction. Commenting on this case, Moshinsky questions whether the same decision to refuse a stay would have been made if the anti-suit injunction had issued before the Victorian proceedings had 258. See 5.16–5.17. 259. CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 393. 260. XL Insurance Ltd v Owens Corning [2000] 2 Lloyd’s Rep 500 at 508–9; Donohue v Armco Inc [2002] 1 Lloyd’s Rep 425 at 433, 439; Welex AG v Rosa Maritime Ltd, The Epsilon Rosa [2003] 2 Lloyd’s Rep 509 at 517–18; Through Transport Mutual Insurance Assn (Eurasia) Ltd v  New India Assurance Co Ltd, The Hari Bhum [2004] 1 Lloyd’s Rep 206 at 211–13. 261. National Westminster Bank v Utrecht-America Finance Co [2001] 2 All ER (Comm) 7 at 20. 262. [1999] 2 VR 681; [1999] VSC 262. 263. Commonwealth Bank of Australia v White (No 4) [2001] VSC 11 at [39]–[40].

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been commenced. In that situation, the stronger grounds for a stay that are given by the principles of lis alibi pendens would certainly be available to the Victorian defendant.265 264

Restraining proceedings in another Australian or a New Zealand court 4.92  There is now little need for one court in Australia to issue an anti-suit injunction against another. The cross-vesting scheme’s provision for transfers between superior courts creates another method of deciding in which court the merits of a case are to be determined, a method which depends significantly on the cooperation of the courts involved.266 In Pegasus Leasing Ltd v Cadoroll Pty Ltd,267 this cooperation was not forthcoming. There were parallel proceedings in the Federal Court (sitting in the Australian Capital Territory) and the Supreme Court of South Australia, each involving the same parties and almost the same issues. However, each of the courts had refused to transfer the proceeding before it to the other. As multiple proceedings with the prospect of incompatible judgments being rendered was undesirable, Neaves J in the Federal Court granted an anti-suit injunction to restrain the Supreme Court proceedings. This was endorsed on appeal to the Full Court. Though it is regrettable that in Pegasus Leasing the cross-vesting scheme was not used as it was intended, there is little doubt that the power to issue an anti-suit injunction against another Australian court still exists.268 4.93  There is a limited prohibition on the granting of anti-suit injunctions against other courts in Australia under s 21 of the Service and Execution of Process Act 1992 (Cth). This prohibition only arises where a proceeding was commenced by the service of initiating process under the Act.269 In that case, the proceeding cannot be restrained by another Australian court. 4.94  An Australian court cannot restrain a party from commencing or continuing with litigation in New Zealand on the basis that New Zealand is not the appropriate forum.270 Because the legislation restricts the prohibition to that particular ground, it seems likely that an Australian court might grant an injunction to prevent commencement or continuation of New Zealand litigation on other grounds.

Reform 4.95  The Australian principles of jurisdiction have been widely criticised. In particular, the case law version of the forum non conveniens principle has been criticised as being too heavily weighted in favour of the plaintiff, which is thought to be inappropriate, especially given the breadth of many of the rules relating to jurisdictional competency discussed in 264. 265. 266. 267. 268. 269. 270.

M Moshinsky, ‘Comity and Foreign Anti-Suit Injunctions’ (2005) 79 Australian Law Journal 89 at 91. See 4.53. See 4.59–4.74. (1996) 59 FCR 152. Bell Group NV (in liq) v Insurance Commission of Western Australia [2017] WASCA 229. See 2.24–2.27. See Trans-Tasman Proceedings Act 2010 (Cth) s 22(1), (2).

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Chapter 2. The differences between the case law version of forum non conveniens and the

legislative versions of the same principle have also attracted criticism. In 2012, the Standing Council on Law and Justice established a working group to consider reform to the principles of jurisdiction and choice of law.271 While there is widespread support for reform to the rules of jurisdiction,272 that project was never completed and it seems unlikely that it will be revived. 4.96  Section  20 of the Trans-Tasman Proceedings Act  2010 (Cth) was influenced by the Hague Convention of 30 June 2005 on Choice of Court Agreements (the Hague Choice of Court Convention),273 although it is not identical to it. In 2016, the Australian Parliament’s Joint Standing Committee on Treaties recommended that Australia should accede to the Hague Choice of Court Convention.274 At the time of writing, in April 2018, the Commonwealth Attorney-General’s Department was preparing instructions for the parliamentary drafters for the International Civil Law Bill, which is intended to bring the Choice of Court Convention into effect for Australia. The precise detail of that Bill is unknown; nor is it known when the Bill might be presented to federal parliament. 4.97  In summary, the Hague Choice of Court Convention is inspired by the New York Convention (the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958) and is intended to give a high level of protection to exclusive choice of court agreements.275 The Choice of Court Convention is not comprehensive;276 therefore, even when legislation giving effect to it is enacted, it will only apply to some jurisdiction agreements in Australia and the current law will continue to apply to many choice of court agreements.

Conclusion 4.98  In Australia, the law of jurisdiction can be seen to comprise two separate questions. The first is whether the court is competent to deal with the claim. Historically, this has 271. Standing Council of Law and Justice, Communiqué, 12–13 April 2012. 272. The Hon J Allsop and D Ward, ‘Incoherence in Australian Private International Law’ and A S Bell, ‘Rationalisation and Rationale: Approaching the Reform of Rules for the Assertion of Jurisdiction over Foreign Defendants’ in Dickinson et al, above n 2, Chs 3, 4. 273. Convention on Choice of Court Agreements, opened for signature 30 June 2005 (entered into force 1 October 2015). 274. Joint Standing Committee on Treaties, Implementation Procedures for Airworthiness-USA; Convention on Choice of Courts-accession; GATT Schedule of Concessions-amendment; Radio Regulations-partial revision, Report 166 (November 2016) [3.21]. 275. For detailed explanations of the likely effect of the Hague Choice of Court Convention on Australian law, see  R Garnett, ‘Magnum Opus or Much Ado About Nothing?’ (2009) 5 Journal of Private International Law 161; BA Marshall and M Keyes, ‘Australia’s Accession to the Hague Convention on Choice of Court Agreements’ (2017) 41 Melbourne University Law Review 246; A Mills, ‘The Hague Choice of Court Convention and Cross-border Commercial Dispute Resolution in Australia and the Asia-Pacific’ (2017) 18 Melbourne J of Int L 1. 276. It only applies to exclusive choices of courts of Contracting States to the Convention (Article 3(a)); a number of different matters are excluded from the scope of the Convention (Article 2(2)); the Convention does not apply to consumer and employment contracts (Article 2(1)); and the Convention only applies in international cases: Article 1(2). See Marshall and Keyes, above n 275 at 271–81.

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been principally concerned with ensuring that the court has personal jurisdiction over the defendant. The circumstances in which that is the case were discussed in Chapter 2. The court must also have subject matter jurisdiction over each of the particular claims and defences raised by the parties; limitations on subject matter jurisdiction were discussed in Chapter  3. Finally, the court may be required because of mandatory rules to stay proceedings or retain jurisdiction in international cases. If not, Australian courts always have a discretion whether to stay proceedings in favour of litigation in a foreign court. The court may also restrain commencement or continuation of foreign proceedings by the issue of an anti-suit injunction. Together, the issues of jurisdiction form a major part of private international law in Australia.

132

Chapter 5 The Effect of Foreign and Interstate Judgments Introduction 5.1  In Chapter 1, the three broad issues addressed in private international law were introduced — jurisdiction, the recognition and enforcement of a foreign judgment, and choice of law.1 So far, the discussion in Part 2 (in Chapters 2–4) has concentrated on jurisdiction. The second ‘issue’ in private international law arises when a case has proceeded to judgment in a place outside the forum state — whether that is another state, territory or country — and the person who is to benefit from that judgment (in the case of money judgments, the judgment creditor) wants the judgment of the interstate or foreign court to be either recognised or enforced in the forum state. For family law matters, this issue will be discussed in Part 4. This chapter considers the principles by which an interstate or foreign judgment in all other matters in personam and in rem will be recognised in an Australian court. 5.2  There is a close relationship between the principles of jurisdiction and those dealing with the effect of interstate and foreign judgments. The roles of the two bodies of principle are also complementary. The most evident connection lies in the reliance placed on the jurisdiction actually exercised by the foreign court when deciding whether its judgment may be given any effect in an Australian forum. In general terms, the foreign court’s judgment will only be recognised if the court exercised jurisdiction in the proceedings on the narrow grounds allowed to a domestic court at common law: that is, the defendant was present in the foreign place or submitted to the jurisdiction of its courts.2 In that respect, the rules of ‘international jurisdiction’ — which from the perspective of Australian law give a foreign court’s judgment juridical credibility — mirror the common law rules of domestic jurisdiction for an Australian court. While, for multi-state litigation in Australia, courts are given more generous extraterritorial jurisdictions than this under statute or their own rules of court,3 a foreign court exercising a similar extended jurisdiction in multi-state proceedings is not likely to see Australian law giving the resulting foreign judgment any effect in an Australian forum.

1. 2. 3.

See 1.1. See 2.3–2.16. See 2.17–2.94.

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5.3  The extended jurisdiction exercised by Australian courts under statute or their rules of court raises another aspect of the relationship between jurisdiction and the recognition and enforcement of foreign judgments. Even if an Australian court exercises jurisdiction in international litigation, it does not mean that this will have any extraterritorial effect. The exercise of jurisdiction does not mean that the court can impose liability, which depends on it being able to exercise coercive power. While it will be able to exercise coercive power in the forum, it will only be able to impose liability outside the borders of the forum state if the rules for the recognition and enforcement of foreign judgments in the place where enforcement is sought recognise the forum court’s judgment. In most cases, foreign principles of recognition are as equally reluctant as those of Australian law to concede the right of (what is from the foreign court’s perspective) a foreign court to exercise a long-arm jurisdiction in rendering a locally-enforceable judgment. So, as was noted in the discussion of Dow Jones & Co Inc v Gutnick,4 while the right of an Australian state court to exercise jurisdiction in an internet defamation case merely because the libellous material was downloaded in the state might initially seem exorbitant, the actual exercise of that jurisdiction by an Australian court could be worthless to the plaintiff if the defendant had no Australian presence or assets.5 In considering how effective litigation is likely to be, it is necessary to account for both the jurisdiction of the local court and the principles for enforcing a foreign judgment in the place where it is needed to enforce the local judgment. This chapter, however, only considers the Australian rules for the recognition and enforcement of foreign judgments. If the intention is to enforce the judgment outside Australia, the principles of recognition and enforcement in the relevant foreign country also need to be consulted. 5.4  The relationship between principles of jurisdiction and the effect of foreign judgments has been developed in international and federal schemes designed to assist the crossborder enforcement of judgments. It is generally believed that cross-border trade, and so the success of free-market areas, are assisted by easing the ability to enforce civil judgments between the countries that are participating as trading partners.6 A trading debtor should not be able to abscond within the market area. This has led to the development of ‘direct jurisdiction’ schemes for the cross-border enforcement of judgments in multi-state market areas. Most importantly, the European Union and the European Economic Area have, under the Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation recast) and the 2007 Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Lugano Convention), progressively refined a scheme by which all countries have agreed to common rules of jurisdiction for civil matters internal to the market area. If the defendant is domiciled in a European Union or a European Economic Area country then these common rules of jurisdiction apply to the litigation. The judgment that results can generally circulate freely through the whole market area, and is recognised and enforceable 4. 5. 6.

(2002) 210 CLR 575; [2002] HCA 56. See 2.73. However, this is not always the case. Competition judgments seem, at times, to have been used to hinder international trade: see D Senz and H Charlesworth, ‘Building Blocks: Australia’s Response to Foreign Extraterritorial Legislation’ (2001) 2 Melbourne Journal of International Law 69.

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5.7

in all countries within the European Union and the European Economic Area. Under the European schemes, there are a number of exceptions to the rules for giving effect to another European judgment, but the jurisdiction of the rendering court cannot be questioned in the country enforcing the judgment. 5.5  Once the rules of jurisdiction for dealing with cross-border matters internal to Australia are placed alongside the rules for enforcing judgments across state borders, it becomes evident that the Australian judgments scheme represents an even purer direct jurisdiction model than the European Union and the European Economic Area schemes do. Unlike the European schemes, the Australian principles of jurisdiction do not incorporate common rules of jurisdiction for the federal, state and territory courts in cross-border matters. The combined effect of the Jurisdiction of Courts (Cross-vesting) Acts and the Service and Execution of Process Act 1992 (Cth) means that, for all Australian courts, jurisdiction in interstate cases should be allocated to the forum conveniens, or the most appropriate court. The limited subject-matter jurisdictions of the federal courts bring a qualification to this principle. However, as will be seen in this chapter, once a state or territory court renders a judgment, that judgment effectively becomes enforceable anywhere in Australia and its external territories. There are no exceptions to the enforceability of the judgment throughout the federation, whether those exceptions would have been based on jurisdiction or some other ground. This arguably makes the cross-border circulation of state and territory judgments through the Australian market area the freest in the world.7 5.6  This free-market area has recently expanded to include New Zealand, pursuant to the Trans-Tasman Proceedings Act 2010 (Cth), which came into effect on 11 October 2013. Part  7 of the Act, dealing with enforcement of New Zealand judgments in Australia, is discussed below.8 5.7  Interstate and foreign, non-New Zealand, judgments receive significantly different treatment under Australian law. A judgment made in another state or territory can only be enforced by registration under the Service and Execution of Process Act. To recognise or enforce a judgment made in a place outside Australia, the judgment creditor must do so either at common law or by registration under the Foreign Judgments Act 1991 (Cth). Nevertheless, the enactment of the Foreign Judgments Act simplified the law relating to the registration of judgments made outside Australia substantially. From 27 June 1993, all state and territory legislation under which foreign judgments could be registered became ineffective.9 With the exception of New Zealand judgments, the Foreign Judgments Act is now the sole statute under which foreign judgments can be registered. Accordingly, in this chapter consideration is given to the recognition and enforcement of judgments at common law; the registration of foreign judgments; and the registration of interstate judgments.

7.

8. 9.

R Mortensen, ‘Judgments Extension under CER’ [1999] 2 New Zealand Law Review 237 at 262–7; R Mortensen, ‘Autochthonous Essential: State Courts and a Cooperative National Scheme of Civil Jurisdiction’ (2004) 22 University of Tasmania Law Review 109 at 109–10. See 5.77. Foreign Judgments Act 1991 (Cth) ss 18, 19(b).

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Recognition and enforcement of judgments at common law 5.8  The recognition or enforcement of a foreign judgment at common law depends on the theory of obligation. Effectively, the theory is that there is an obligation on the part of the judgment debtor to pay a sum of money to the judgment creditor and that the foreign judgment is evidence of that obligation. However, the obligation is not enforceable because of the foreign judgment. As with any other debt, the obligation is strictly only enforceable when adjudged to be enforceable by a court in the forum and, accordingly, reduced to the form of a judgment of the forum court. Therefore, if the judgment creditor A wishes to be paid the sum given in a judgment by a judgment debtor B who is in the forum — and B is not prepared to pay that money voluntarily — A must institute proceedings in debt in the forum against B for the recovery of the money. Note that the effect of enforcement of a foreign judgment at common law is that the cause of action merges in the judgment. Whatever rights and obligations exist in respect of the debt are those created by the judgment and it is not permissible to ‘go behind’ the judgment to consider, for example, transaction documents.10 For enforcement purposes the court in the forum must have jurisdiction over B, whether at common law, under the Service and Execution of Process Act, or by its own rules of court. If B is in another state or territory, a court in Australia will be able to exercise jurisdiction in proceedings in debt brought against B. If B is outside Australia, then A can only seek to enforce the foreign judgment in the forum if the rules of court provide that the forum court has, by reason of the subject matter of the claim, power to allow B to be served outside Australia or to give leave to proceed against a person served outside Australia. In the Supreme Courts of the Australian Capital Territory, New South Wales, South Australia, Tasmania and Victoria, service can be effected on the defendant/judgment debtor B simply because the proceedings concern the enforcement of a foreign judgment in the state.11 In other states and the territories, the jurisdiction of the forum court would have to depend on the foreign judgment being ascribed a location in the forum, or emerging from a contractual relationship connected with the forum.12 As will be seen, when compared to enforcement at common law, one significant advantage of the procedure for registering a foreign judgment under the Foreign Judgments Act is the absence of any requirement that the Australian forum court have jurisdiction over B.13 5.9  For a forum court to accept that a judgment made in a foreign country creates an obligation on the part of the judgment debtor that the forum court is prepared to recognise and enforce, the judgment must satisfy the following four conditions: • • • • 10. 11. 12. 13.

the foreign court must have international jurisdiction; the judgment must be final and conclusive; the judgment must be for a fixed sum; and the parties must be identical. Macquarie Bank Ltd v Juno Holdings Sarl [2015] NSWSC 1260 at [25]–[26]. See 2.90–2.91. See 2.90. See 5.48.

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5.11

The rule of pleading is that A need only allege that B is indebted to A for a fixed sum. Hence, A need not plead these four requirements in the statement of claim. Strictly, B is to put any of these requirements in issue by pleading its absence in B’s defence.14 However, if any of these requirements is put in issue, the onus of proving that the requirement is satisfied probably rests on A.15 In practice, therefore, A’s lawyers would normally plead in the statement of claim that these requirements are satisfied. 5.10  Even if a foreign judgment satisfies the four requirements set out above, its enforcement in the forum could be resisted successfully by B on B’s pleading and establishing any one of the following four defences: • the foreign judgment was obtained by fraud; • the foreign judgment was obtained in proceedings in which B was denied natural justice; • enforcement of the foreign judgment in the forum would amount to the enforcement of a foreign penal or revenue law, or of a foreign governmental interest; or • the recognition or enforcement of the foreign judgment in the forum would be manifestly contrary to the public policy of the forum. Each of these requirements and defences is now considered.

International jurisdiction 5.11  ‘International jurisdiction’ means the competence that the law of the forum recognises that a court in a foreign country can exercise if its judgment is to be recognised or enforced in the forum. So, the international jurisdiction of the foreign court is not assessed by reference to the law of the relevant foreign country, although, hopefully, the foreign court will not have rendered judgment without the power to do so under its own law. International jurisdiction is assessed by reference to the law of the forum. As has been noted, under the common law of Australia, the rules of international jurisdiction roughly mirror the rules by which the forum court is able to exercise its own jurisdiction at common law.16 So, the foreign court is regarded in the forum as having had the international jurisdiction to render a judgment capable of being recognised or enforced in the forum when: • the defendant/judgment debtor B was present in the foreign place at the time B was served with the initiating process for the proceedings in the foreign court; • B submitted to the jurisdiction of the foreign court; or • the judgment made in the foreign court delivered title to, or possession of, tangible property located in the foreign place. The possibility that B’s residence, domicile or citizenship in the foreign place might also establish international jurisdiction will also be considered, as will the fact that the foreign court was exercising a reciprocal jurisdiction to that which the forum court is lawfully able to exercise. The Canadian principles by which the proceedings’ real and 14. 15. 16.

Robertson v Struth (1844) 5 QB 941; 114 ER 1503. R v McLeod (1890) 11 LR (NSW) 218 at 221. See 2.3–2.16.

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substantial connection with the foreign place establish international jurisdiction are also discussed below.17

Presence 5.12  Where the defendant-judgment debtor B is a natural person, the international jurisdiction of the foreign court will be recognised when B was served, while physically present in the foreign place, with the initiating process for the proceeding that led to the making of the foreign judgment.18 It is not sufficient for international jurisdiction to arise on this ground that another person present in the foreign place accepted service of initiating process on B’s behalf.19 If B was fraudulently induced to enter the foreign jurisdiction in order for service of process to be made upon him or her, then international jurisdiction may not exist.20 5.13  When B is a corporation, the international jurisdiction of the foreign court will also be recognised when B was served in the relevant foreign place with the initiating process for the foreign proceeding. A corporation is regarded as being present in a foreign country when it is carrying on business at a definite place in that country.21 A corporation may also be deemed to be carrying on business in the foreign country where it has an agent in the country which conducts the business of the corporation exclusively and has authority to bind it in contracts with third parties.22 The mere existence of a wholly-owned subsidiary of the corporation in the foreign country is insufficient to create a ‘presence’ unless the subsidiary is an agent in the sense above.23

Submission 5.14  The second general means by which the foreign court can have international jurisdiction over B is by B’s consent, or voluntary submission, to the court’s jurisdiction. There are two particular means by which submission to the jurisdiction of the foreign court might be shown: express agreement; or conduct inconsistent with a protest against the jurisdiction of the foreign court. Again, it should be noted how these principles mirror, although less perfectly, those by which a forum court is able to exercise jurisdiction over a person at common law.24 5.15  It has already been seen how, by a ‘forum clause’, parties to a contract can agree that any dispute in relation to the contract is to be determined by the courts of a given place — or of a number of places — and submit themselves to the jurisdiction of those courts.25 If parties A and B agree in a forum clause to submit to the jurisdiction of a foreign court and judgment is entered against B in that place, at common law the foreign 17. 18. 19. 20. 21. 22. 23. 24. 25.

See 5.21. Schibsby v Westenholz (1870) LR 6 QB 155 at 161; Herman v Meallin (1891) 8 WN (NSW) 38. Seegner v Marks (1895) 21 VLR 491. Close v Arnot [1997] NSWSC 569. Littauer Glove Corp v FW Millington (1920) Ltd (1928) 44 TLR 746 at 747: see also 2.9. Adams v Cape Industries plc [1990] Ch 433. Adams v Cape Industries plc [1990] Ch 433. See 2.13–2.16. See 4.11–4.31.

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court will be regarded as having exercised a proper international jurisdiction. It does not matter if B refused to appear before the foreign court. In these cases, it appears that the agreement to submit to jurisdiction must be expressed in the contract.27 Until recently, it was considered that a submission to the jurisdiction of a foreign court that can at best only be inferred from the terms of the contract is insufficient, in itself, to establish international jurisdiction.28 However, in Vizcaya Partners Ltd v Picard,29 the Privy Council held that there does not have to be an express contractual agreement to submit to the foreign jurisdiction but that consent can be express or implied. An agreement to submit to a foreign jurisdiction might also arise, in the case of a contract governed by foreign law, by an implied term under that law. A forum clause should, however, be distinguished from a choice of law clause, which specifies that the law of a given place shall be the proper law of the contract.30 A choice of law clause is not sufficient to establish international jurisdiction. 26

5.16  Obviously, where B has entered an unconditional appearance in response to A initiating proceedings in the foreign place, the foreign court is considered at common law to have had international jurisdiction in the proceedings.31 This, however, is not the case if B has arranged for the entry of a conditional appearance: that is, an appearance that allows B to argue actively against the jurisdiction of the foreign court. Contesting jurisdiction has two aspects: asserting that jurisdiction does not exist; or claiming that it should not be exercised on discretionary, appropriate forum grounds. The distinction between an unconditional and a conditional appearance is embodied in s 11 of the Foreign Judgments Act. This section provides that in any proceedings brought in Australia to enforce a foreign judgment the foreign court is not taken to have had jurisdiction to give the judgment merely because the judgment debtor entered an appearance; nor is the foreign court taken to have had international jurisdiction merely because the judgment debtor participated in the foreign proceedings for the purpose of contesting the jurisdiction of the court or for inviting the court, in its discretion, not to exercise its jurisdiction in the proceedings. The operation of s 11 is not limited to proceedings for the registration of a judgment under the Foreign Judgments Act. It applies ‘in any proceedings brought in Australia’, including those where enforcement is being sought at common law. 5.17  In more recent decisions it has been confirmed that a defendant will not be found to have submitted to the jurisdiction of the foreign court where it limits itself to challenging the existence or exercise of the court’s jurisdiction and takes no action indicating a willingness to contest the merits of the action.32 In Wong v Jani-King Franchising Inc,33 the defendant 26. 27. 28. 29. 30. 31. 32.

33.

Telesto Investments Ltd v UBS AG (2013) 94 ACSR 29; [2013] NSWSC 503. Vogel v Kohnstamm Ltd [1973] 1 QB 133; Adams v Cape Industries plc [1990] Ch 433 at 465–6. Cf Blohn v Desser [1962] 2 QB 116 at 123; Korea Resolution and Collections Corp v Lee [2013] NZHC 985 at [35]. [2016] UKPC 5. Dunbee v Gilman and Co (Australia) Pty Ltd [1968] 2 Lloyd’s Rep 394; Keenco v South Australia and Territory Air Service Ltd (1974) 8 SASR 216. Victorian Philip Stephan Photo Litho Co v Davies (1890) 11 LR (NSW) 257. Bushfield Aircraft Co v Great Western Aviation Pty Ltd (1996) 16 SR (WA) 97; filing a defence that addresses matters going to the merits or a counter-claim is a submission: Martyn v Graham [2003] QDC 447 at [23]; Fletcher Steel v Moghe [2006] NSWSC 425 at [9]–[11]. [2014] QCA 76.

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was held to have submitted to the jurisdiction of the foreign court in circumstances where it had not only entered a ‘special appearance’ for the purposes of contesting jurisdiction but had also filed an opposition to joinder of another defendant to the foreign action. The defendant/judgment debtor’s reason for opposing the joinder was that it would delay the trial and so ‘went beyond anything that was needed to contest the court’s jurisdiction’.34

Property in the foreign country 5.18  If the foreign judgment was made in proceedings in rem, the forum court will recognise the international jurisdiction of the foreign court where the property in question was deemed, by Australian rules for ascribing a location to property, to be situate in the relevant foreign place.35 In this case, proceedings in rem should be understood as any that relate to the determination of title to, or possession of, property.36 They are not limited to maritime proceedings. However, it is possible to understand this rule of international jurisdiction as an example of the choice of law rule by which rights in property are determined in accordance with the law of the place where the property was situate.37 Given that these choice of law rules do not necessarily apply when the property in question is intangible, it is probable that this ground of international jurisdiction is only available when the foreign judgment related to immovable property or chattels.

Domicile, citizenship and residence 5.19  In the Manitoba Court of Appeal’s decision in Marshall v Houghton,38 it was held that where the judgment debtor B is ordinarily resident in a foreign place, the relevant foreign courts will, for that reason, have international jurisdiction to render a judgment capable of being recognised or enforced in the forum.39 Equally, the court in Marshall held that international jurisdiction would be established if B were domiciled in the foreign place. There is more — but old — authority for this latter proposition than there is for residence as a ground of international jurisdiction, so it should at least be considered possible that the judgment is enforceable at common law when B was domiciled in the place where the judgment was made.40 There is also a possibility that B’s nationality in the foreign place will be sufficient to establish international jurisdiction. This was certainly the opinion of Sully J in the Supreme Court of New South Wales in Federal Finance & Mortgage Ltd v Winternitz.41 However, in an appeal from the Punjab — Sirdar Gurdyal Singh v Rajah of Faridkote — the Privy Council effectively ruled out nationality as a good ground of international jurisdiction,42 and the trend of authority remains against it.43 Nonetheless,

34. 35. 36. 37. 38. 39. 40. 41. 42. 43.

At [16]. For a recent New Zealand decision, see Gordhan v Kerdemelidis [2013] NZHC 566. The Despina GK [1983] 1 All ER 1. SS Pacific Star v Bank of America Trust & Savings Assn [1965] WAR 159. See 20.1–20.4 and 21.1–21.36; Castrique v Imrie (1870) LR 4 HL 414 at 429. [1923] 2 WWR 553. See also, to the same effect, Korea Resolution and Collections Corp v Lee [2013] NZHC 985 at [29]. Emanuel v Symon [1908] 1 KB 302 at 309, 311; Jaffer v Williams (1908) 25 TLR 12 at 13. SC(NSW), Sully J, 9 November 1989, unreported, BC8901479. [1894] AC 670 at 683–4. See Rainford v Newell-Roberts [1962] IR 95.

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5.21

in a recent, uncontested decision in New South Wales, the Supreme Court recognised a judgment on the basis of the defendant’s ‘active nationality’ of the foreign country, which was shown by the fact that he used his passport regularly in international travel. Despite the attempt in this decision to give nationality a stronger basis for jurisdiction by requiring it to be ‘active’ (as opposed to dormant), it must remain a dubious ground of international jurisdiction in a world where persons increasingly have multiple citizenships. 44

Reciprocal jurisdictions 5.20  It will be seen, when discussing the recognition of decrees made in matrimonial causes, that a court in Australia is prepared to recognise a decree of annulment or divorce when it was made by a foreign court that was exercising a reciprocal jurisdiction to that which an Australian court could exercise.45 However, this does not appear to be a ground on which a court in Australia will be prepared to recognise or enforce a general civil judgment made in another place. For example, in Crick v Hennessy46 an action was brought in the Supreme Court of Western Australia to enforce a judgment made in England. The High Court of Justice in England had exercised jurisdiction on the basis that there were good grounds under the rules of court for serving the defendant outside England. This paralleled the jurisdiction that the Supreme Court of Western Australia was also able to exercise. However, Burt J held that the exercise of a reciprocal jurisdiction to that which the forum court was prepared to exercise was not sufficient to establish international jurisdiction at common law. The English judgment was therefore unenforceable in Western Australia. In Re Dulles Settlement (No 2), Dulles v Vidler,47 Denning LJ offered the opinion that reciprocity was able to establish international jurisdiction at common law. This view is nevertheless anomalous. The position adopted in Crick v Hennessy is strongly reinforced by the case law.48

Real and substantial connection 5.21  The Canadian courts have developed a broad basis for the recognition of extraterritorial judgments where the judgment is made in a place that has a real and substantial connection with the action or the defendant. This was first accepted for the recognition in one province of a judgment made in another, in Morguard Investments v De Savoye.49 In Morguard, La Forest J, for the Supreme Court of Canada, held that a departure from the narrow English rules for recognising judgments, which Canada had inherited, was justified within the context of the Canadian federation. Efforts were therefore to be made to give Canada something akin to a ‘full faith and credit’ principle that, unlike Canada, the Australian and United States Constitutions provided for explicitly.50 It was 44. 45. 46. 47. 48.

49. 50.

Independent Trustee Services Ltd v Morris (2010) 79 NSWLR 425; [2010] NSWSC 1218; see also Liu v Ma [2017] VSC 810. See 14.33–14.38. [1973] WAR 74. [1951] Ch 842 at 851. Sharps Commercials Ltd v Gas Turbines Ltd [1956] NZLR 819; Re Trepca Mines Ltd [1960] 3 All ER 304; Societe Co-op Sidmetal v Titan International Ltd [1966] 1 QB 828; Malaysia-Singapore Airlines Ltd v Parker [1972] 3 SASR 300 at 304; Felixstowe Dock & Railway Co v United States Lines Inc [1989] QB 360 at 373–6. [1990] 3 SCR 1077. See 5.69–5.71.

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therefore held that a Canadian provincial court should recognise the judgment of another province’s courts where the jurisdiction that the rendering province’s court was exercising was based on a real and substantial connection between the province and the action of the defendant, and on ‘principles of order and fairness’.51 Despite the interprovincial dimension in this broad ground of recognition, in Beals v Saldanha52 the Supreme Court of Canada subsequently accepted that the real and substantial connection ground of recognition also applied for the recognition of foreign judgments. In Beals, a Florida judgment was recognised in Ontario on this ground. The real and substantial connection basis of recognition is adapted from a similar ground for the recognition of foreign annulments and divorces.53 However, the assessment made by Canadian courts for the recognition of general civil judgments probably differs from the approach taken for matrimonial decrees in that, under the Morguard and Beals standard, the court is ultimately determining whether it was unfair to expect the defendant to have litigated in the place where judgment was rendered. Although developments in Canada have influenced radical changes in other aspects of Australian private international law,54 it is suggested that it is both unlikely that the real and substantial connection ground for recognising general civil judgments will be followed in Australia, and undesirable that it should. First of all, the full faith and credit imperatives of the Commonwealth Constitution and the Service and Execution of Process Act 1992 (Cth) already give even more generous recognition of interstate judgments across Australia than the Morguard standard has provided for Canada.55 The ‘real and substantial connection’ ground would therefore add nothing to the recognition of interstate judgments in Australia and in that respect is unnecessary. Second, the ground is so broadly and flexibly defined as to give little guidance as to when a foreign judgment with some connection with the place where it was rendered will not be recognised. Beals probably gives Canada the most generous rules for the recognition of foreign judgments (made outside a federal or, for example, European Union context) in the world.56 It has therefore been suggested that Morguard and Beals have not given a principle for determining whether a court from another province or country had jurisdiction to give a judgment that bound the parties outside its borders, but merely ‘a collective expression for a set of principles’.57 Accordingly, the real and substantial connection test gives almost ‘total flexibility’ and, as a consequence, almost no certainty.58 Blom and Edinger therefore conclude that Canada now needs rules for the recognition of interprovincial and foreign judgments that either supplement, or replace, the real and substantial connection standard.59 The recognition of general civil judgments, more so than 51. 52. 53. 54. 55. 56. 57. 58. 59.

At 1103–9. [2003] 3 SCR 416. See 14.32. See 7.28. See 5.69–5.75. H S Fairley, ‘Open Season: Recognition and Enforcement of Foreign Judgments in Canada after Beals v Saldanha’ (2004) 11 ILSA Journal of International and Comparative Law 304 at 316–18. J Blom and E Edinger, ‘The Chimera of the Real and Substantial Connection Test’ (2005) 38 University of British Columbia Law Review 373 at 418–19. Blom and Edinger, above n 57, at 416. Blom and Edinger, above n 57, at 418. The Court Jurisdiction and Proceedings Transfer Act, enacted in British Columbia, Nova Scotia and Saskatchewan, may provide an example of such ‘rules’, although the Act does not expressly address the issue of recognition of foreign or inter-provincial judgments.

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matrimonial decrees, is an area where certainty and predictability serve the useful roles of enabling the planning of transactions, and encouraging the settlement of disputes. The Canadian jurisprudence only seems to undermine these policies and is best avoided.

Final and conclusive 5.22  To be recognised or enforced at common law, a judgment made in a foreign place must be final and conclusive — it must be res judicata. This means that the matter could not be relitigated by the same parties in the same court. Accordingly, a judgment that is subject to appeal is generally still regarded as being final and conclusive.60 Yet, where an appeal is pending in the foreign country’s courts in respect of the judgment, the enforcing court may stay enforcement of the judgment pending the outcome of the appeal.61 In most cases, a judgment made in default of appearance is also regarded as final and conclusive.62 However, if the defendant/judgment debtor B has a right to have a judgment made by default set aside without having to show cause to do so, then the judgment could not be regarded as final and conclusive until B’s right in that respect expires.63 In Nouvion v Freeman,64 the House of Lords considered that a Spanish judgment made in summary proceedings, where the defendant’s range of defences was limited, was not final. The reason was that the defendant could subsequently bring plenary proceedings in the same court where it would have access to all available defences, and until this occurred the Spanish judgment was unenforceable at common law in England. By contrast, where a defendant was entitled to apply to the foreign court to stay enforcement of its judgment or relieve the defendant from complying with its terms, but not challenge the judgment’s validity, the foreign judgment was final and conclusive.65

Fixed sum 5.23  The theory of obligation assumes that the foreign judgment will represent an obligation on the part of the defendant/judgment debtor B to pay a sum of money to the plaintiff/judgment creditor A. Consequently, at common law a foreign judgment will only be recognised or enforced if it represents a fixed sum. If the judgment is for a sum that cannot be calculated, it will not be capable of enforcement.66 5.24  The requirement that the judgment made in the foreign place be for a fixed sum has historically precluded enforcement in the forum of orders in specie akin to equitable decrees of specific performance or injunction. There are obvious practical problems in 60. 61. 62.

63. 64. 65. 66.

Colt Industries v Sarlie (No 2) [1966] 3 All ER 85. JP Morgan Chase Bank NA v PT Indah Kiat Pulp and Paper Corp [2012] NSWSC 1279. Barclays Bank Ltd v Piacun [1984] 2 Qd R 476; Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508; Mendikwae Ltd v Mezin [2000] QSC 56; Schnabel v Yung Lui [2002] NSWSC 15 at [77]; XPlore Technologies Corp of America v Tough Corp Pty Ltd [2008] NSWSC 1267 at [17]; Telesto Investments Ltd v UBS AG (2013) 94 ACSR 29; [2013] NSWSC 503 at [188]; Doe v Howard [2015] VSC 75 at [80]. Jeannot v Furst (1909) 25 TLR 424 at 425. (1889) 15 App Cas 1. Mobi-Light Inc v KK Machinery Pty Ltd [2010] WADC 105 at [33]. Sadler v Robins (1808) 1 Camp 253; 170 ER 948; Taylor v Begg [1932] NZLR 286.

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obtaining the enforcement of orders of this kind at common law since the defendant will normally have to be present within the jurisdiction of the enforcing court, or have assets there, to ensure compliance with the orders. However, it does not necessarily preclude an Australian court with jurisdiction in equity from transforming an order in specie made in a foreign place into an appropriate equitable decree enforceable in the forum.67 For example, in White v Verkouille68 McPherson J in the Supreme Court of Queensland recognised an order made in Nevada for the appointment of a receiver where the defendant had a sufficient connection with the foreign court. There is nothing unusual in this approach, as courts in Australia, exercising jurisdiction in probate, are prepared to recognise foreign appointments of personal representatives in multi-state succession cases.69 Yet, in more recent cases, courts have shown an increased willingness to relax the strictures of the ‘fixed sum’ rule.70 In Davis v Turning Properties Pty Ltd,71 Campbell J of the Supreme Court of New South Wales granted Mareva relief in respect of assets in Australia in support of a Mareva order granted in a foreign country. The court saw this action as an example of a court making its remedies available to assist proceedings in a foreign court. The court stated that it had an inherent jurisdiction to make a Mareva order in aid of the enforcement of a foreign judgment in Australia, whether that judgment had been obtained or not. This view was recently followed by the High Court in PT Bayan Resources TBK v BCBC Singapore Pte Ltd.72 Even more dramatically, in Pro Swing Inc v Elta Golf Inc,73 the Supreme Court of Canada held that the fixed sum rule no longer represented the law of Canada. The court emphasised the outdatedness of the rule at a time of increased technological change and modern means of travel and communications, and the consequent need for national courts to cooperate with one another in the resolution of cross-border disputes. The court laid down three criteria to assist courts in determining whether to enforce a non-monetary judgment: first, that the foreign order be clear and specific as to the rights, duties and obligations that it imposes on the defendant;74 second, that the order be clear about whether it was intended to apply outside the territory of the court of origin;75 and third, whether the proceedings have a sufficient connection with the jurisdiction of enforcement to warrant the local court’s intervention.76 It remains unclear whether Australian courts are ready to embrace the full liberalisation of Pro Swing, but in a very recent decision of the Supreme Court of New South Wales, Independent Trustee

67. 68. 69. 70. 71. 72.

73. 74. 75. 76.

Houlditch v Marquess of Donegal (1834) 2 Cl & F 470; 6 ER 1232. [1990] 2 Qd R 191. See 22.7–22.13. See, generally, K Pham, ‘Enforcement of Non-Monetary Judgments in Australia’ (2008) 30 Sydney Law Review 663. (2005) 222 ALR 676. (2015) 258 CLR 1. See also Severstal Export GmbH v Bhushan Steel Ltd (2013) 84 NSWLR 141; [2013] NSWCA 102, where a mareva order was granted in aid of enforcement of a foreign judgment but the jurisdictional basis relied upon was r 25 of the Uniform Civil Procedure Rules 2005 (NSW), not the court’s inherent jurisdiction. [2006] 2 SCR 612. At 629, 653. At 640–2. At 638–9.

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Services Ltd v Morris, the court lent further support to the trend away from the fixed sum rule by recognising orders made by an English court for declarations of equitable breaches and an account of profits. 77

Identical parties 5.25  The defendant in the proceedings brought in the forum must be the same as the judgment debtor in the foreign place, and the plaintiff in the forum must be the same as the judgment creditor in the same foreign place. In Blohn v Desser,78 a judgment was rendered in Austria against a partnership, Salvator Maskafee Gesellschaft Deir & Co. However, when proceedings were brought in England, the named defendant was Margarete Desser, one of the partners in Salvator Maskafee Gesellschaft Deir & Co. As a judgment made against a partnership in Austria was not, by the law of Austria, considered enforceable against an individual partner, the parties in Austria and England were not identical. Accordingly, the judgment was not enforceable at common law in England.

Fraud 5.26  If the judgment made against the defendant/judgment debtor B in the foreign place was obtained by fraud, the foreign judgment is still possibly enforceable by the plaintiff/ judgment creditor A in the forum. However, if B raises and establishes the question of fraud by way of defence to the proceedings in the forum, then the judgment will not be recognised or enforced. The most debated question in this context is whether fraud can include matters that were raised, considered and determined in the foreign court — or whether it is limited to matters that arise in evidence that is only discovered after the foreign judgment was rendered. This is called ‘extrinsic fraud’. In purely domestic proceedings in Australia and other common law countries, a judgment can only be ‘impeached’ or relitigated if the fraud were extrinsic. To allow reconsideration of a matter of fraud that has already been adjudged by a court is, in effect, to allow the merits of the case to be reargued.79 In proceedings for the recognition or enforcement of a foreign judgment, however, common law courts have traditionally been prepared to allow B to raise a question of fraud like perjury or the falsification of documents even when the foreign court considered that very issue. In Ahmed v Habib Bank,80 a Pakistani judge had explicitly found against the allegations of fraud. However, in proceedings to enforce the judgment in England, Mummery LJ thought that the Pakistani judgment lacked reasons for concluding that there was no fraud and, further, that there appeared to be documentary evidence to support the defendant’s claim. The English Court of Appeal granted a new trial. However, this was despite the English court’s acceptance that the foreign court was correct to be ‘critical’ of the defendant’s evidence.81 The result is that the foreign judgment is not res judicata on the question of

77. 78. 79. 80. 81.

(2010) 79 NSWLR 425; [2010] NSWSC 1218. [1962] 2 QB 116. Duchess of Kingston’s case [1775–1802] All ER Rep 623. [2001] EWCA Civ 1270. At [51].

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fraud, and the forum court can find that fraud existed in the foreign proceedings even when the foreign court found otherwise. 5.27  There are obvious difficulties in the failure to limit the defence of fraud to extrinsic fraud discovered after judgment was rendered in the foreign place. First, it seems to be incompatible with the recognition that the foreign judgment is final and conclusive and res judicata on all other issues adjudged by the foreign court. Second, it can encourage the defendant B not to participate completely in the foreign proceedings. For example, the rule enables B to withhold evidence of fraud in the foreign proceedings in the knowledge that it will be possible to raise the same evidence in proceedings to enforce the same judgment in the forum.82 This is despite the decision of the English Court of Appeal in Israel Discount Bank v Hadjipateras,83 where it was held that a defendant who failed to raise a defence of undue influence in proceedings in New York could not, as a consequence, raise that defence in England. In Hadjipateras, the defendant had adopted this strategy — in the event, unwisely — because his perception was that the English law of undue influence was more favourable to his case. It is, nevertheless, difficult to understand why that strategy would be permissible in questions of common law fraud but not for undue influence — which is a species of equitable fraud. Third, as already observed, the approach differs from that taken to domestic judgments. However, the policy of finalising litigation would seem to be as applicable in multi-state cases as in domestic. The more liberal approach taken in proceedings for the recognition or enforcement of foreign judgments may arguably be seen as an example of parochial adjudication.84 5.28  A long line of English authorities supports the proposition that the defence of fraud is not limited to extrinsic fraud.85 The rule was confirmed by the House of Lords in Owens Bank Ltd v Bracco.86 The only retreat from this position in England arose in House of Spring Gardens Ltd v Waite.87 There, the original judgment was made in Ireland, but the defendants tried again in Ireland to have that judgment set aside on the ground of fraud. This failed, and the plaintiff sought to enforce the judgment in England. The English court considered that, as the question of fraud had already been relitigated in Ireland, the defendants could not raise it again in England. 5.29  The English approach to the defence of fraud has been accepted in New Zealand.88 In contrast, the Canadian courts have only allowed a defendant/judgment debtor B raising 82. 83. 84.

85. 86. 87. 88.

Syal v Heyward [1948] 2 KB 443. [1983] 3 All ER 129. But compare R Garnett, ‘Fraud and Foreign Judgments: The Defence that Refuses to Die’ (2002) 2 Journal of International Commercial Law 161, who argues that the fraud defence performs the important function of allowing the defendant to ventilate one of the most serious allegations in the administration of justice — that a judgment was dishonestly procured — in circumstances where it may not have received a fair or adequate hearing on the issue in the foreign court. Such an exceptional situation justifies the departure from the res judicata principle in the case of fraud. See, for example, Abouloff v Oppenheimer (1882) 10 QBD 295; Vadala v Lawes (1890) 25 QBD 310; Jet Holdings Inc v Patel [1990] QB 335. [1992] 2 AC 443. [1991] 1 QB 241. Svirkis v Gibson [1977] 2 NZLR 4 at 10; Gordhan v Kerdemelidis [2011] NZHC 1808 at [26]–[31], where the article referred to at above n 84 was cited with approval. See also Yingling v Gifford [2016] NZHC 1556 at [11]–[13]; Emajor v Emajor [2016] NZHC 2022 at [65]–[67].

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the defence of fraud to rely on extrinsic evidence. In Australia, the matter has not, until very recently, been considered by any appellate court. In Norman v Norman (No 2), Fox J held that B was not limited to reliance on extrinsic evidence in raising the defence of fraud.90 However, in Keele v Findley,91 Rogers CJ Comm D in the Supreme Court of New South Wales gave extended consideration to the question and preferred the Canadian approach. He also noted the consistent criticism of the English cases, and the importance of aligning the treatment of foreign and domestic judgments. While some commentators have argued that Keele v Findley embodies an eminently sensible approach to the question,92 it was more recently rejected in the New South Wales Supreme Court in Close v Arnot93 and Yoon v Song,94 and, until very recently, in the majority of Australian decisions since.95 The court in Close v Arnot held that Keele v Findley did not apply in circumstances where the foreign judgment was undefended and the defendant had ‘good reason’ for not contesting the plaintiff ’s claim in the foreign court. The good reason found in that case was that the defendant could not afford the cost of legal representation. In Yoon v Song, Dunford J accepted that the older English approach correctly stated the law.96 That case involved a joint venture in Korea. A Korean judgment was obtained against the defendant, who was subsequently sued in New South Wales in proceedings to enforce the Korean judgment. The defendant argued that the Korean judgment had been obtained by fraud as the plaintiff, in the Korean proceedings, had claimed money that had actually been paid to a third party, but had not disclosed this to the Korean court. This case considered whether the English rule — that it is not necessary to show that fresh facts have been found since the original judgment in order to find fraud — was the correct approach. All that was required was that it be shown that the foreign court was misled in coming to a wrong decision by evidence that was false. Dunford J added:97 ‘I am not satisfied that Keele v Findley was correctly decided. Indeed the facts of this case demonstrate in my mind good reason for applying a different test of fraud in respect of foreign judgments to that applied in domestic judgments …’ . In the Australian decisions since Yoon v Song which have adopted the English approach, the courts have, however, emphasised the onerous burden on the defendant in terms of proving fraud98 and consequently have rejected the defence on each occasion. Such burden arguably limits the operation of the defence to the very serious and clear cases. 89

89. 90. 91. 92. 93. 94. 95.

96. 97. 98.

Jacobs v Beaver (1908) 17 Ont LR 496 at 506; McDougall v Occidental Syndicate Ltd (1912) 4 DLR 727; Manolopoulos v Pnaiffe [1930] 2 DLR 169. (1968) 12 FLR 39 at 47. (1990) 21 NSWLR 444. M Davies, A Bell and P Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, Sydney, 2014, at [40.74]. [1997] NSWSC 569. (2000) 158 FLR 295; [2000] NSWSC 1147. See, for example, De Santis v Russo (2001) 27 Fam LR 414; [2001] QSC 065; Benefit Strategies Group Inc v Prider (2005) 91 SASR 544; [2005] SASC 194; Mobilight Inc v KK Machinery Pty Ltd [2010] WADC 105; Ramanathan v Naidu [2007] NSWSC 693 at [24] (under the Foreign Judgments Act 1991 (Cth)); cf XPlore Technologies Corp of America v Tough Corp Pty Ltd [2008] NSWSC 1267 at [19]. (2000) 158 FLR 295 at 300; [2000] NSWSC 1147. At 300. See, in particular, De Santis v Russo (2001) 27 Fam LR 414; [2001] QSC 065 at [16]; Ramanathan v Naidu [2007] NSWSC 693 at [24].

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5.30  Recently, however, there appears to have been a swing back in favour of Keele v Findley. In Quarter Enterprises Pty Ltd v Allardyce Lumber Co Ltd,99 the New South Wales Court of Appeal said that there were ‘powerful reasons for preferring the views in Keele’, but ultimately found it unnecessary to choose between the competing approaches as there was no evidence of an intent to deceive the foreign court.100 The Keele approach was also adopted by the Supreme Court of Victoria in Doe v Howard101 on the basis that ‘there is a public interest in the finality of a judicial determination’.102 The court in Howard further held that the same rule should apply to foreign default judgments.103 In the absence of High Court authority the matter is not entirely settled but a detectable momentum back in favour of Keele is apparent.

Natural justice 5.31  If the defendant/judgment debtor B was denied natural justice in the proceedings brought in the foreign place, B can successfully defend proceedings in the forum for the recognition or enforcement of the judgment. The rules of natural justice are twofold: that there be due notice of the proceedings; and that both parties be given a fair opportunity to present their cases. In private international law, natural justice has been more an issue in proceedings for the recognition of a decree of dissolution or annulment than it has in the recognition or enforcement of a general civil judgment.104 5.32  The courts will refuse to give effect to a foreign judgment where no notice of the foreign proceedings was given to B, even if the relevant foreign law allows proceedings to be brought without providing notice to B.105 This rule can be qualified, especially where B has voluntarily submitted (for example, by a forum clause) to the jurisdiction of the foreign courts before the proceedings in the foreign place were initiated and, at the time of submission, B was aware that proceedings could be brought there without having to give notice.106 Even if B has been given notice of the foreign proceedings and an adequate opportunity to appear, there may still be a denial of natural justice if B is not properly advised of the consequences of a failure to appear.107 5.33  As is generally the case under principles of natural justice, a foreign judgment will not be recognised or enforceable in the forum where the foreign judge had a material or personal interest in the outcome of the proceedings.108 More recently, the Privy Council in AK Investment CJSC v Kyrgyz Mobile Tel Ltd109 suggested that an English court may examine the question whether a foreign court or foreign court system is corrupt or lacking 99. 100. 101. 102. 103. 104. 105. 106. 107. 108. 109.

(2014) 85 NSWLR 404; [2014] NSWCA 3. (2014) 85 NSWLR 404; [2014] NSWCA 3 at [136]–[145]. [2015] VSC 75. At [129]. At [133]. See 14.44–14.46. Buchanan v Rucker (1808) 9 East 192; 103 ER 546. Jamieson v Robb (1881) 7 VLR 170. Adams v Cape Industries plc [1990] Ch 433 at 564–6. Price v Dewhurst (1837) 8 Sim 279; 59 ER 111. [2012] 1 WLR 1804 at 1830.

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in independence but only where there is cogent evidence to support such allegations. This view appears to have been accepted by the Full Court of the Federal Court in Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport.110 Where however the defendant is aware of the court’s bias at the time of the foreign proceedings but fails to raise the issue within the time specified under the law of the foreign country, it is barred from doing so at the enforcement stage.111

Public policy 5.34  It will be seen in Chapter 8 that a court in Australia has power to refuse to apply the usual law of the cause in a choice of law case on the ground that to do so would be contrary to the public policy of the forum.112 Similarly, the forum court has power not to recognise or enforce a foreign judgment where to do so would produce an outcome that is contrary to the public policy of the forum. This has also been more common as a defence to the recognition of matrimonial decrees than it has for the recognition or enforcement of general civil judgments.113 While the defence gives some flexibility to the court when deciding whether to enforce the foreign judgment, in the clear majority of Australian cases the public policy defence has been narrowly construed. The defence has been said to be only available where a fundamental question of moral and ethical policy, fairness of procedure or illegality is involved,114 or where there is ‘substantial injustice, either because … [the judgment involves] a repugnant foreign law or a repugnant application of the law in a particular case’.115 A narrow approach to public policy is justified by the need to respect and recognise other sovereign states’ laws and institutions.116 5.35  It has been seen that the traditional English approach to the defence of fraud allows the defendant to raise the defence in proceedings to enforce a foreign judgment even where the issue was placed before the foreign court in the original proceeding. In Israel Discount Bank of New York v Hadjipateras,117 however, the English Court of Appeal suggested that the defence of public policy may not be invoked at the stage of enforcement if the circumstances underlying the defence provided a similar defence in the action before the foreign court. In that case, the bank sued the defendant Hadjipateras — father and son — in New York under guarantees by which the Hadjipateras had guaranteed repayments of loans made by the bank to Liberian companies. The court in New York rendered judgment against the Hadjipateras, which the bank then tried to enforce against them in England. There, the

[2013] FCAFC 106. Mulugeta Guadie Mengiste v Endowment Fund for the Rehabilitation of Tigray [2017] EWCA Civ 1326. See 8.57–8.69. See 14.47–14.48. Stern v National Australia Bank [1999] FCA 1421 at [143]; De Santis v Russo (2001) 27 Fam LR 414; [2001] QSC 065 at [22]. 115. Jenton Overseas Investment Pte Ltd v Townsing (2008) 221 FLR 398; [2008] VSC 470 at [22]. 116. Jenton Overseas Investment Pte Ltd v Townsing (2008) 221 FLR 398; [2008] VSC 470 at [22]. See also Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International BV (No 3) (2013) 300 ALR 741; [2013] FCA 85 at [44] (rev’d on other grounds: [2013] FCAFC 106); Ross v Ross [2010] NZCA 447; Kok v Resorts World at Sentosa Pte Ltd [2017] WASCA 150. 117. [1983] 3 All ER 129. 110. 111. 112. 113. 114.

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son argued that his father had exercised undue influence over him when he — the son — entered the guarantee and so, on that ground, it would be contrary to the public policy of England to enforce the judgment. Undue influence was admitted. However, in the Court of Appeal Stephenson LJ held that it should also be accepted that the law of New York on undue influence was the same as the law of England — even though the son believed that he had some advantage in raising the point in England that he would not have had in New York.118 The judge considered that the judgment debtor should take all possible defences that he had in the place where the judgment was made, and should not try to draw out litigation by reserving the defence until the judgment came to be enforced in another place at a later time. The court found for the bank.

Penal and revenue judgments 5.36  Australian courts will not enforce foreign penal or revenue judgments, a principle which is part of the general rule against enforcement of foreign penal or revenue laws. This issue is discussed in Chapter 8.

Incompatible judgments 5.37  Where the matter adjudged in the foreign place has already been adjudged differently in the forum, it will normally be contrary to the public policy of the forum to recognise or enforce the foreign judgment.119 The question then arises as to the approach to be taken when the matter is adjudged in one foreign country — Hentzau — and adjudged differently in another foreign country — Ruritania. In this case, is either the Ruritania or Hentzau judgment capable of being enforced in the forum, and if so, which one? The question arose in Showlag v Mansour120 where judgment was rendered in the same matter in England and in Egypt, and then there was an attempt to enforce both judgments in Jersey. The English judgment favoured the plaintiff, Showlag, and was entered on 5 December 1990. The Egyptian judgment did not recognise Showlag’s claim and therefore favoured the Egyptian defendant, Mansour. At the earliest, it was entered on 23 May 1991. In Jersey, proceedings were brought to enforce the English judgment against Mansour but the Egyptian judgment was raised as a defence. Both judgments were enforceable in Jersey. These proceedings went on appeal to the Privy Council. There, Lord Keith of Kinkel held that the principle is that ‘where there are two competing foreign judgments each of which is pronounced by a court of competent jurisdiction and is final and not open to impeachment on any ground then the earlier in time must be recognised and given effect to the exclusion of the other.’121 He added: ‘At the same time it is to be kept in mind that there may be circumstances under which the party holding the earlier judgment may be estopped from relying on it’.122 This appears to be the common law rule, although in this case enforcement was sought under

118. 119. 120. 121. 122.

At 134. Vervaeke v Smith [1983] 1 AC 145. [1995] 1 AC 431. At 440–1. At 441.

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Jersey enforcement of foreign judgments legislation. In Showlag v Mansour, the English judgment was the earlier in time and therefore was recognised and enforced.

Foreign competition judgments 5.38  The federal Attorney-General has power to disallow the enforcement of any anti-trust judgment made by a foreign court. This also enables the Attorney-General to allow only part of the judgment to be enforced, and the remaining part not to be. The disallowance is not automatic, and is exercisable only when the Attorney-General believes that it is desirable for the protection of the national interest that the foreign court assumed an excessive jurisdiction, or that the foreign court exercised a jurisdiction or power that was contrary to international law or inconsistent with international comity or international practice.123

Estoppel and foreign judgments 5.39  In most cases it will be the plaintiff who seeks to enforce a foreign judgment against the defendant in the forum. A foreign judgment may, however, also be relied upon by a defendant to prevent a plaintiff relitigating the same matter in the forum, first, where a judgment in favour of the plaintiff has been wholly satisfied and second, where the plaintiff ’s action was dismissed in the foreign court. In such cases, the foreign judgment may be pleaded by the defendant as a cause of action estoppel or res judicata in any subsequent action in an Australian forum between the same parties on the same cause of action. A cause of action estoppel exists where the factual circumstances required for establishing the requirements to relief are the same in both the local and foreign proceedings, even where the legal effect of conduct and method of proof of conduct might be different. The causes of action in both proceedings must therefore be in substance the same.124 A mistake or error of law in the foreign judgment does not preclude the operation of the doctrine of cause of action estoppel.125 5.40  In Carl Zeiss Stiftung v Rayner and Keeler (No 2),126 the House of Lords held that a foreign judgment may also give rise to an issue estoppel, in certain circumstances. An issue estoppel operates to preclude a matter determined in a judgment being reopened in later proceedings in the forum between the same parties. Three requirements for the operation of this doctrine were identified: that the same issue has been decided by a court of competent jurisdiction; that the foreign judgment was final and conclusive127 and on the merits; and

123. Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth) s 9. For a comprehensive discussion on ‘blocking measures’ taken against foreign competition judgments, see Senz and Charlesworth, above n 6. 124. Telesto Investments Ltd v UBS AG (2013) 94 ACSR 29; [2013] NSWSC 503 at [193]–[201]. 125. SK Foods LP v SK Foods Australia Pty Ltd (in liq) (No 3) (2013) 302 ALR 260; [2013] FCA 526. 126. [1967] 1 AC 853. 127. The issue of finality of the foreign judgment is governed by the law of the country in which the judgment was rendered: see R Garnett, Substance and Procedure in Private International Law, Oxford University Press, Oxford, 2012, at [7.38].

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that the parties to the judgment (or their ‘privies’)128 were the same parties to the proceedings in the forum (or their privies). The expression ‘on the merits’ was later defined in The Sennar (No 2)129 as a decision that ‘establishes certain facts 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 such principles to the factual situation concerned’. In that case, the House of Lords held that a Dutch court’s decision that an exclusive jurisdiction clause in a bill of lading applied to the plaintiff ’s claim, although procedural in that it concerned the court’s jurisdiction, was still a decision ‘on the merits’ which prevented the plaintiff from subsequently proceeding in an English court. Consequently, a foreign judgment may found an issue estoppel even where the judgment was interlocutory in nature. 5.41  The above principles have been accepted as authoritative in Australian law.130 For example, in Armacel Pty Ltd v Smurfit Stone Container Corp131 an issue estoppel was held to arise from a decision of a United States court that a choice of forum provision stipulating the New South Wales courts was not an exclusive jurisdiction clause. Consequently, a party was barred from asserting that the clause was exclusive in subsequent proceedings in New South Wales. In Telesto Investments Ltd v UBS AG132 it was held that a finding by a Singapore court in granting an anti-suit injunction to restrain a party from pursuing proceedings in New South Wales, that the party had acted vexatiously and oppressively, amounted to an issue estoppel preventing the party from arguing that its conduct was not vexatious and oppressive in subsequent New South Wales proceedings. Nevertheless, such a conclusion did not oust the New South Wales court’s discretion to determine whether it was a ‘clearly inappropriate forum’ under the test in Voth v Manildra Flour Mills Pty Ltd.133 By contrast in Central Petroleum Ltd v Geoscience Resource Recovery LLC,134 a determination by a foreign court that it had personal jurisdiction over a defendant under its own law did not give rise to an issue estoppel that bound an Australian court. For an issue estoppel to arise from a foreign judgment, the foreign court must first be found to be ‘a court of competent jurisdiction’, which means that it has ‘international jurisdiction’ according to Australian private international law principles.135 5.42  It also appears that the doctrine of Anshun estoppel136 may be relied upon in relation to a foreign judgment. Such an estoppel operates to prevent an issue being raised 128. A privy is an entity that claims through or under a person in a successor relationship or a mutual relationship. Examples of a successor relationship would be testator and executor or company and liquidator, while examples of a mutual relationship would be joint contractors or beneficiaries; see Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1993) 36 FCR 406. 129. [1985] 1 WLR 490 at 499 (Lord Brandon). 130. Armacel Pty Ltd v Smurfit Stone Container Corp (2008) 248 ALR 573; [2008] FCA 592; Telesto Investments Ltd v UBS AG (2013) 94 ACSR 29; [2013] NSWSC 503; see also, in New Zealand, Americhip Inc v Dean [2015] 3 NZLR 498. 131. (2008) 248 ALR 573; [2008] FCA 592. 132. (2012) 262 FLR 119; [2012] NSWSC 44 at [133]–[136]. 133. (1990) 171 CLR 538. 134. [2017] QSC 223. 135. See 5.11–5.21. Query, however, whether such a requirement was satisfied in the case of Armacel Pty Ltd v Smurfit Stone Container Corp (2008) 248 ALR 573; [2008] FCA 592. 136. Port of Melbourne Authority v Anshun (1981) 147 CLR 589.

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5.44

in subsequent proceedings that could have been, but was not, ventilated in an earlier action between the same parties. In the context of a foreign judgment, however, the estoppel will only be available in later Australian proceedings if the equivalent doctrine exists under the law of the country that rendered the judgment.137

Registration of foreign judgments 5.43  There has long been legislation in Australia for the enforcement of foreign judgments by registration in a local court. This legislation has generally adopted the approach taken in the Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK), which provided that judgments made in countries proclaimed under the statute could be registered, and thereby enforced. However, under the statute of 1933 registration could be set aside on the judgment debtor proving that the foreign court lacked international jurisdiction, the judgment was obtained by fraud, the judgment debtor was denied natural justice, and so on. Until 1991, each of the Australian states and territories had legislation of this kind, providing for the enforcement of the foreign judgment by registration in its Supreme Court.138 The South Australian statute departed from the approach taken in the United Kingdom Act of 1933 in allowing the registration of judgments made in countries that were not proclaimed under the legislation, and in having more generous rules of international jurisdiction.139 In 1991, federal legislation was enacted in response to national obligations Australia assumed under the 1983 Closer Economic Relations Trade Agreement with New Zealand, and further, to ease the enforcement of New Zealand judgments in Australia.140 The Foreign Judgments Act 1991 (Cth) was nevertheless designed eventually to replace the state and territory statutes, and since 27 June 1993 it has only been possible to register judgments under the Foreign Judgments Act.141 5.44  The Foreign Judgments Act allows the registration of judgments from both superior and inferior courts of proclaimed places. The conditions of proclamation are that the foreign place will give substantial reciprocity of treatment to Australian judgments.142 It is no accident that most of the places that do reciprocate are Commonwealth jurisdictions, as the approach taken in the United Kingdom Act of 1933 was replicated throughout the Commonwealth and was partially designed to assist the freer circulation of judgments within the Commonwealth. The superior courts to which the Foreign Judgments Act applies, set out in Sch 1 to the Foreign Judgments Regulations (Cth), are set out in the table below:

137. PCH Offshore Pty Ltd v Dunn (No 2) (2010) 273 ALR 167; [2010] FCA 897 at [107]; Telesto Investments Ltd v UBS AG (2013) 94 ACSR 29; [2013] NSWSC 503 at [235]–[236]. 138. Foreign Judgments Act 1954 (ACT); Foreign Judgments Act 1973 (NSW); Foreign Judgments Act 1955 (NT); Reciprocal Enforcement of Judgments Act 1959 (Qld); Foreign Judgments Act 1971 (SA); Foreign Judgments Act 1963 (Tas); Foreign Judgments Act 1962 (Vic); Foreign Judgments Act 1963 (WA). 139. Malaysia-Singapore Airlines Ltd v Parker (1972) 3 SASR 300. 140. See now Trans-Tasman Proceedings Act 2010 (Cth) Pt 7. 141. Foreign Judgments Act 1991 (Cth) ss 18, 19(b). 142. Foreign Judgments Act 1991 (Cth) s 5(1), (3).

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Private International Law in Australia Foreign place

Superior courts

Alberta, Canada

Supreme Court of Canada, Court of Appeal, Court of Queen’s Bench

The Bahamas

Court of Appeal, Supreme Court

British Columbia, Canada

Supreme Court of Canada, Court of Appeal, Supreme Court

British Virgin Islands

Eastern Caribbean Supreme Court

Cayman Islands

Grand Court

Dominica

Eastern Caribbean Supreme Court, Court of Appeal, High Court of Justice

Falkland Islands

Court of Appeal, Supreme Court

Fiji

Supreme Court, Court of Appeal, High Court

France

Cour de Cassation, Cours d’Appel, Tribunaux de grand instance, Tribunaux de commerce, Cours d’assise, Tribunaux correctionnels

Germany

Bundesgerichtshof, Oberlandesgerichte Bayerische Oberste Landesgericht, Landgerichte

Gibraltar

Court of Appeal, Supreme Court

Grenada

Supreme Court (consisting of the Court of Appeal, High Court)

Hong Kong, People’s Republic of China

High Court (consisting of the Court of Final Appeal, Court of First Instance)

Israel

Supreme Court, District Courts, Moslem Religious Courts, Druze Religious Courts

Italy

Corte Suprema di Cassazione, Corte di Assise, Corte d’Appello, Tribunale

Japan

Supreme Court, High Courts, District Courts, Family Courts

Korea

Supreme Court, Appellate Courts, District Courts, Family Court, Patent Court, Administrative Court

Malawi

High Court, Supreme Court

Manitoba, Canada

Court of Queen’s Bench

Montserrat

Privy Council, Eastern Caribbean Court of Appeal, High Court

Papua New Guinea

Supreme Court of Justice, National Court of Justice

Poland

Supreme Court, Commercial Courts, Courts of Appeal, Provincial Courts

St Helena

Supreme Court 154

The Effect of Foreign and Interstate Judgments



Foreign place

5.45

Superior courts

St Kitts and Nevis

Privy Council, Eastern Caribbean Court of Appeal High Court (Saint Christopher Circuit), High Court (Nevis Circuit)

St Vincent and the Grenadines

Eastern Caribbean Supreme Court (consisting of the Court of Appeal, High Court)

Seychelles

Court of Appeal, Supreme Court

Singapore

Privy Council, Supreme Court (consisting of the Court of Appeal, High Court)

Solomon Islands

Court of Appeal, High Court

Sri Lanka

Supreme Court, Court of Appeal, High Court, District Court

Switzerland

Bundesgericht, Kantonale Obere Gerichte, Handelsgerichte

Taiwan, China

Supreme Court, High Courts, District Courts

Tonga

Court of Appeal, Supreme Court

Tuvalu

Court of Appeal, High Court

United Kingdom

Supreme Court of the United Kingdom, Senior Courts of England and Wales, Court of Judicature of Northern Ireland, Court of Session

Western Samoa

Court of Appeal, Supreme Court

5.45  The inferior courts to which the Foreign Judgments Act applies, set out in reg 5 of the Foreign Judgments Regulations (Cth), are set out in the table below:143 Foreign place

Inferior courts

Alberta, Canada

Provincial Court

British Columbia, Canada

Provincial Court

Manitoba, Canada

Provincial Court

New Zealand

District Court

Poland

District Court

Switzerland

Bezirksgerichte, Erstinstanzliche Gerichte, Arbeitsgerichte, Mietgerichte

United Kingdom

County Courts (England and Wales),143 County Courts (Northern Ireland), Sheriff Courts (Scotland)

143. The Family Court in England and Wales is not a County Court, and as it is not listed in the Foreign Judgments Regulations its judgments are not registrable under the Foreign Judgments Act 1991 (Cth): Pavitt v Pavitt [2018] QSC 77.

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5.46  The range of determinations that can be registered under the Foreign Judgments Act is broader than those that can be enforced at common law. The term ‘judgment’ is defined in the Act to include ‘a final or interlocutory judgment or order given or made by a court in civil proceedings’.144 Registration of the judgment will be refused if it is not final and conclusive according to the common law principles discussed above.145 Consequently, a judgment is still regarded as final and conclusive even though it is subject to an appeal.146 Further, a judgment given in default of appearance is generally considered final and conclusive even though it is easier to reopen than one given after a contested hearing.147 The Act also allows for registration of judgments made in criminal proceedings that provide compensation to an injured person, and arbitral awards.148 Further, there is provision for proclamations to be made allowing the registration of non-pecuniary judgments; for example, injunctions and orders for specific performance.149 To date, no proclamations have been made to this effect, with the result that, except for New Zealand judgments, only judgments for a sum of money can be registered. An order for seizure and sale of a defendant’s assets to satisfy a debt that exists independently of the judgment is not a judgment for a sum of money.150

Registration — conditions and effect 5.47  A judgment creditor is able to apply for registration of a judgment (to which the Foreign Judgments Act applies) in the Supreme Court of a state or territory. This application must be made within six years of the date the judgment was made or, if it had been the subject of an appeal, the last date in which a judgment was made in the proceedings in the foreign territory.151 There are alternative procedures where the judgment was made in proceedings to which the Trans-Tasman Proceedings Act 2010 (Cth) applies.152 The judgment must be registered by the Supreme Court so long as:153 • it is a judgment to which the Act applies; • it is not wholly satisfied; and • it is enforceable in the place where it was made. It follows from these conditions that, if the foreign judgment has been partially satisfied, it is only to be registered for the balance of money remaining payable to the judgment creditor on the date of application.154

144. Foreign Judgments Act 1991 (Cth) s 3(1). 145. Foreign Judgments Act 1991 (Cth) s 5(4). See 5.22; Bank Polska Kasa Opieki Spolka Akcyjna v Zbigniew Opara (2010) 238 FLR 309; [2010] QSC 093 at [63]. 146. Foreign Judgments Act 1991 (Cth) s 5(5). 147. Barclay’s Bank Ltd v Piacun [1984] 2 Qd R 476. 148. Foreign Judgments Act 1991 (Cth) s 3(1). 149. Foreign Judgments Act 1991 (Cth) s 5(6), (7). 150. Bank Polska Kasa Opieki Spolka Akcyjna v Zbigniew Opara (2010) 238 FLR 309; [2010] QSC 093 at [51]–[58]. 151. Foreign Judgments Act 1991 (Cth) s 6(1). 152. See 5.77. 153. Foreign Judgments Act 1991 (Cth) s 6(1), (3), (6). 154. Foreign Judgments Act 1991 (Cth) s 6(12).

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The Effect of Foreign and Interstate Judgments

5.49

5.48  The advantage of enforcing a foreign judgment by registration rather than by proceedings at common law is that there is no need for the registering Supreme Court to have jurisdiction over the judgment debtor. In Hunt v BP Exploration Co (Libya) Ltd,155 the High Court of Justice in England rendered judgments in favour of BP Exploration and against Nelson Hunt in two sums: one over US$15 million, and the other close to UK£9 million. Hunt had large property interests in Queensland, and BP Exploration therefore applied to register the judgments in that state’s Supreme Court under the Reciprocal Enforcement of Judgments Act 1959 (Qld) (which had similar procedures to the Foreign Judgments Act). Matthews J registered the judgment, and also issued injunctions restraining the removal of assets from Queensland. However, Hunt applied for registration to be set aside, on the ground that he had at no stage been present in the state or submitted to the jurisdiction of the Supreme Court. This question was raised on appeal to the High Court, which held that there was no need for the Supreme Court to have personal jurisdiction over the judgment debtor for the judgment to be registered. Stephen, Mason and Wilson JJ pointed out ‘that at common law a judgment creditor who sought to enforce a foreign judgment in Queensland by suing on the judgment in the Supreme Court could only do so if the judgment debtor was answerable or amenable to the jurisdiction of that Court’.156 The Reciprocal Enforcement of Judgments Act dispensed with this requirement, it being held that ‘[t]he application for registration does not involve an action in personam requiring service of the Supreme Court’s process in or outside the jurisdiction’.157 Barwick CJ, Murphy J and Aickin J agreed with this approach. 5.49  So, the judgment debtor may have no connection with the forum in which the judgment is validly registered.158 However, in all Australian states and territories, the rules of the Supreme Courts require notice to be given to the judgment debtor that registration has been effected.159 These rules also allow service of the notice of registration on a judgment debtor who is overseas, and in all cases leave to serve this notice is required.160 The Federal Court has similar rules.161 This prior leave requirement makes it in practice more difficult to enforce a foreign judgment under the Foreign Judgments Act than under the common law rules in the states and territories where the new harmonised service rules have been adopted. As noted at 2.89 and 5.8 above, prior leave is no longer required in those jurisdictions to

(1980) 144 CLR 565. At 572. At 573. See also English’s Coasting and Shipping Co Ltd v British Finance Co Ltd (1886) 14 R 220 at 225–6; Hunt v BP Exploration Co (Libya) Ltd [1981] 1 NZLR 209. 159. Court Procedures Rules 2006 (ACT) r 3479; Uniform Civil Procedure Rules 2005 (NSW) r 53.6; Supreme Court Rules (NT) 2012 r 94.07; Uniform Civil Procedure Rules 1999 (Qld) r 947J; Supreme Court Civil Rules 2006 (SA) r 346(7); Supreme Court Rules 2000 (Tas) r 721; Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) r 11.07; Rules of the Supreme Court 1971 (WA) O 44A r 8(1). 160. Court Procedures Rules 2006 (ACT) r 6508; Uniform Civil Procedure Rules 2005 (NSW) r 11.8AB; Supreme Court Rules (NT) 2012 r 7.03; Uniform Civil Procedure Rules 1999 (Qld) r 127(b); Supreme Court Civil Rules 2006 (SA) r 40G; Supreme Court Rules 2000 (Tas) r 147G; Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 7.08; Rules of the Supreme Court 1971 (WA) O 44 r 8(1), O 10 r 7. 161. Federal Court Rules r 41.65 (notice requirement); r 10.44 (service). 155. 156. 157. 158.

157

5.49

Private International Law in Australia

serve process outside Australia to enforce a foreign judgment under common law principles. This anomaly requires addressing. 5.50  On registration in the Supreme Court, a foreign judgment has the same force and effect as a judgment of that court and is deemed to be made on the date of registration. The foreign judgment is therefore naturalised by registration, and can be enforced by all the normal processes of execution available in that court.162 A judgment registered in a Supreme Court under the Foreign Judgments Act can then be registered in the Supreme Court of another state or territory under the provisions of the Service and Execution of Process Act 1992 (Cth).163 5.51  If the defendant/judgment debtor B has appealed against the decision of the court in the foreign place, then registration of the foreign judgment can be stayed until the appeal is determined or until some other date specified by the Supreme Court.164 The Supreme Court must, however, require B to bring the appeal in the foreign place within a specified time and to pursue it expeditiously.165 It can attach other conditions to the stay.166 5.52  It is not possible for a defendant to file a cross-claim in proceedings to enforce a foreign judgment under the Act, because the rights and liabilities of the parties have been determined by the judgment and the only proceedings outstanding are for enforcement of that judgment.167 5.53  If the judgment is one to which the Foreign Judgments Act applies, it is only enforceable by use of the registration procedures of the Act. It does not seem possible to attempt enforcement of the judgment by proceedings at common law.168

Setting aside registration 5.54  Under the Foreign Judgments Act, a registered judgment is effectively resisted and made unenforceable by having the registration of the judgment set aside. A stay ordered under s 8 only suspends processes of execution on the judgment.169 Two procedures for setting aside registration are available. First, the defendant/judgment debtor B can apply to the Supreme Court in which the foreign judgment was registered to have the registration set aside. Second, if the judgment made in the foreign place was registered in the Supreme Court of one state — for example, Victoria — and subsequently, under the provisions of the Service and Execution of Process Act, registered in a second state — for example, South Australia — then B is able to apply to the South Australian court to have registration set 162. Foreign Judgments Act 1991 (Cth) s 6(7). 163. Foreign Judgments Act 1991 (Cth) s 6(8). 164. Foreign Judgments Act 1991 (Cth) s 8(1); see, for example, Hunt v BP Exploration Co (Libya) Ltd [1980] 1 NZLR 104; Dawn Jade Ltd v Himanshu Girdhar Dua [2014] NSWSC 1085 at [45], where the defendant was required to have a reasonably arguable case on the appeal and to satisfy the balance of convenience for a stay to be granted. 165. Foreign Judgments Act 1991 (Cth) s 8(2)–(3). 166. Foreign Judgments Act 1991 (Cth) s 8(4). 167. Fulcrum Securities Ltd v Lake [2009] NSWSC 1202. 168. Foreign Judgments Act 1991 (Cth) s 10(1). 169. See 5.51.

158

The Effect of Foreign and Interstate Judgments



5.56

aside. Even though there is no opportunity under the Service and Execution of Process Act to have registration of a judgment made in Victoria to be set aside in South Australia, it seems that, if that judgment was made in a foreign country and merely registered in Victoria, B can invoke the procedures of the Foreign Judgments Act in South Australia to have registration of the judgment set aside there. 170

5.55  The grounds on which registration of a judgment can be set aside are listed in s 7 of the Foreign Judgments Act, and largely parallel the grounds on which enforcement of a judgment at common law can be defended. If one of these grounds is proved by the defendant/judgment debtor then, with one exception, the Supreme Court must set registration aside. The one exception is that the court has a discretion to set aside (or not to set aside) a judgment made in a foreign place where the matter was also adjudged in another foreign place.171 Note, however, that there is no general discretion to decline to set aside registration of a judgment where a ground for impeachment has been established.172 The grounds for setting aside are discussed below. Further, there are a number of grounds on which the Supreme Court must set registration aside that restate the conditions on which registration is properly made. Thus, registration must be set aside if the judgment: is one to which the Foreign Judgments Act does not apply; was registered for a sum greater than was payable to the judgment creditor at the time of registration; or was otherwise registered in breach of the Act.173 Registration must also be set aside if the judgment has been wholly satisfied,174 or if the foreign judgment is no longer enforceable in the foreign country: that is, it has been reversed on appeal or set aside or discharged by the relevant foreign courts.175

International jurisdiction 5.56  The registration of a judgment made by a foreign court must be set aside if the foreign court was not exercising a recognised international jurisdiction.176 Here, the international jurisdiction that is recognised is itself defined in the Foreign Judgments Act. However, the conditions on which that jurisdiction is recognised depend on the nature of the proceedings that led to the rendering of the foreign judgment. So, there are different rules of international jurisdiction for proceedings in personam, proceedings in rem or relating to immovable property, and proceedings that cannot be classified as either. In any of these cases, international jurisdiction will not be recognised in any of the following cases: • if the foreign proceedings related to immovable property that was not located in the foreign place;177

170. 171. 172. 173. 174. 175. 176. 177.

Foreign Judgments Act 1991 (Cth) s 7(1). See 5.68. Bank Polska Kasa Opieki Spolka Akcyjna v Zbigniew Opara (2010) 238 FLR 309; [2010] QSC 093 at [48]. Foreign Judgments Act 1991 (Cth) s 7(2)(a)(i)–(iii). Foreign Judgments Act 1991 (Cth) s 7(2)(a)(x). Foreign Judgments Act 1991 (Cth) s 7(2)(a)(vii), (ix). Foreign Judgments Act 1991 (Cth) s 7(1)(a)(iv). Foreign Judgments Act 1991 (Cth) s 7(4)(a); Marks v Australia and New Zealand Banking Group Ltd [2014] QCA 102.

159

5.56

Private International Law in Australia

• if the proceedings were brought in the foreign court in breach of an exclusive jurisdiction clause (and the defendant/judgment debtor B had not otherwise submitted to its jurisdiction);178 or • if B ‘was a person who under the rules of public international law was entitled to immunity from the jurisdiction of the courts’ of the foreign place and B did not submit to jurisdiction.179 (The latter point is assumed to mean that B had foreign state or diplomatic immunity.)

Proceedings in personam 5.57  An ‘action in personam’ is defined negatively in the Foreign Judgments Act as excluding, in effect, proceedings relating to marriage, annulment, separation, parenting orders, the administration of deceased estates, insolvency and mental health.180 It should also, by implication, exclude proceedings in rem and proceedings relating to immovable property. The foreign court is recognised as having exercised international jurisdiction in proceedings in personam where, at the time the proceedings were commenced, the defendant/judgment debtor B was a natural person who was ‘resident’ in the relevant foreign place.181 If the common law understanding of ‘residence’ is assumed to apply here, it may mean that B was merely present in the foreign place at the time proceedings were commenced.182 If B is a corporation, international jurisdiction is established if B had its principal place of business in the foreign place.183 In either case, it is also sufficient that the proceedings relate to a transaction that B effected through an office or place of business that B had in the foreign place.184 Further, the international jurisdiction of the foreign court is established if B ‘voluntarily submitted’ to its jurisdiction.185 This seems to adopt the common law.186 It expressly includes a submission by agreement.187 It also expressly includes submission by some forms of conduct: that is, when B was the plaintiff in the foreign proceedings or, as defendant, counter-claimed in the foreign proceedings.188 It would be assumed that submission by other forms of conduct would also be sufficient to establish international jurisdiction.

178. Foreign Judgments Act 1991 (Cth) s 7(4)(b). 179. Foreign Judgments Act 1991 (Cth) s 7(4)(c). 180. Foreign Judgments Act 1991 (Cth) s 3(1). Proceedings relating to the maintenance of children are, however, within the scope of the Act. See De Santis v Russo (2001) 27 Fam LR 414; [2001] QSC 065 at [10]. 181. Foreign Judgments Act 1991 (Cth) s 7(3)(a)(iv). 182. Emanuel v Symon [1908] 1 KB 302 at 309. 183. Foreign Judgments Act 1991 (Cth) s 7(3)(a)(iv). 184. Foreign Judgments Act 1991 (Cth) s 7(3)(a)(v). 185. Foreign Judgments Act 1991 (Cth) s 7(3)(a)(i). 186. See 5.14; Quarter Enterprises Pty Ltd v Allardyce Lumber Co Ltd (2014) 85 NSWLR 404; [2014] NSWCA 3 at [52]; Marks v Australia and New Zealand Banking Group Ltd [2014] QCA 102 at [38]; Zeta-PDM Ltd v Petro Technology Australia Pty Ltd [2011] WASC 338. 187. Foreign Judgments Act 1991 (Cth) s 7(3)(a)(iii); Marks v Australia and New Zealand Banking Group Ltd [2014] QCA 102 at [34]–[36]; Privatbrauerei Erdinger Weissrau Werner Brombach GmbH v World Brands Australia Pty Ltd [2016] WASC 9. 188. Foreign Judgments Act 1991 (Cth) s 7(3)(a)(ii).

160

The Effect of Foreign and Interstate Judgments



5.58

5.58  The decision in De Santis v Russo addressed the issue of voluntary submission to the jurisdiction of a foreign court under the Foreign Judgments Act. To some extent, the decision also takes into account the foreign court’s assessment of the quality of the defendant’s involvement in the proceedings in deciding whether, by Australian law, the defendant has participated in the foreign proceedings so as to have submitted to the foreign court’s jurisdiction. In this case, De Santis appealed from an order that dismissed her application under s 7 of the Act to set aside a registered Italian judgment. The Italian judgment had awarded Russo 20 million lire, together with another 5.5 million lire for costs in a dispute heard by the Corte di Appello di Roma in 1994. De Santis had attempted to have the court in Rome consider her informal submissions, but the Roman court ignored this attempt and ruled against her by default. In an application to set aside registration of the Italian judgment in Queensland, the question for the state’s Court of Appeal was whether De Santis, by attempting to contest the matter and participate in the dispute, had voluntarily submitted to the jurisdiction of the Roman court. McPherson JA considered that the rules of jurisdiction that applied had to be those of Australia and not of Italy.190 It appeared that De Santis had ‘done nothing that resembled what was required’ in order to appear in court.191 The question then became whether, in the terms of the Foreign Judgments Act, De Santis had ‘participated in the proceedings of the court only to the extent necessary for the purpose of contesting the application’.192 McPherson JA found that De Santis had attempted to address the merits of the claim, but that these attempts were ignored. On the basis of Canadian and New Zealand authority,193 McPherson JA held that De Santis had not submitted to the Roman court’s jurisdiction:194 189

The court rejected the informal method of seeking to appear before it and found her guilty of default. The court did not … consider the informally presented submissions that were made by the defendant. In my view, the unsuccessful attempt by Mrs De Santis did not amount to participation in the proceedings before the Court of Appeals in Rome or constitute a voluntary submission on her part to the jurisdiction of that Court.

The overriding consideration in this case appeared to be not that De Santis had tried to participate and defend the merits of her claim, which may suggest voluntary submission, but that the foreign court had taken no notice of her attempts or informal submissions. On that ground, she could not be considered to have participated in the foreign proceedings, and registration was set aside. Such a conclusion seems highly dubious in light of the decisions involving enforcement at common law discussed earlier195 which suggest that any steps taken by the defendant in the foreign proceedings that go beyond a protest to jurisdiction would be considered a submission. The attitude taken by the foreign court to such conduct of the defendant would seem an irrelevant consideration.

[2002] 2 Qd R 230; [2001] QCA 457. At 237. At 238. At 238. Re Overseas Food Importers & Distributors Ltd and Brandt (1981) 126 DLR (3d) 422; Von Wyl v Engeler [1998] 3 NZLR 416. 194. De Santis v Russo [2002] 2 Qd R 230 at 242; [2001] QCA 457. 195. See, for example, Wong v Jani-King Franchising Inc [2014] QCA 76. 189. 190. 191. 192. 193.

161

5.59

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5.59  Further, and relevantly, s 7(5) of the Foreign Judgments Act spells out what will not constitute voluntary submission and does so in precisely the same terms as s 11 of the Act dealing with enforcement of a foreign judgment at common law.196 Thus, voluntary submission and, therefore, international jurisdiction are not established where B’s appearance or participation in the proceedings in the foreign place was for:197 (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.

Proceedings in rem 5.60  The Foreign Judgments Act does not define an ‘action in rem’. Under the general law, it includes a maritime proceeding brought against a vessel and one relating to the title to, or possession of, any property — movable or immovable. The international jurisdiction of a foreign court is established under the Foreign Judgments Act in proceedings in rem or relating to immovable property if the property was in the relevant foreign place at the time of the proceedings.198

Unclassified proceedings 5.61  If the foreign judgment emerged from proceedings that could not be classified as in personam or in rem, the Foreign Judgments Act provides that the international jurisdiction of the foreign court is recognised if it ‘is recognised by the law in force in the state or territory in which the judgment is registered’.199 Nygh suggests that this includes the proceedings expressly excluded from the definition of an action in personam in the Foreign Judgments Act; namely, proceedings relating to marriage, annulment, separation, parenting orders, the administration of deceased estates, insolvency and mental health.200 However, in the case of family law proceedings, decrees will not be registrable under the Foreign Judgments Act.201 It is also uncertain to what extent this will allow the registration of orders relating to administration or insolvency, for which other procedures are available. The provision simply seems to enable a residue of unclassified orders from recognised foreign courts to retain registration, so long as the common law rules of international jurisdiction are satisfied.

196. 197. 198. 199. 200. 201.

See 5.16. Foreign Judgments Act 1991 (Cth) s 7(5). Foreign Judgments Act 1991 (Cth) s 7(3)(b). Foreign Judgments Act 1991 (Cth) s 7(3)(c). Davies, Bell and Brereton, above n 92, at [41.24]. Maples v Maples [1988] Fam 14.

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Identical parties 5.62  The registration of a foreign judgment must be set aside if the rights under that judgment are not vested in the applicant for registration. The applicant must therefore be the judgment creditor of the judgment made in the foreign place.202

Fraud 5.63  The registration of a foreign judgment must be set aside if that judgment was obtained by fraud.203 This parallels the defence of fraud available at common law.204

Natural justice 5.64  The registration of a foreign judgment must be set aside if the defendant/judgment debtor B did not receive notice of the foreign proceedings in sufficient time to enable B to defend the proceedings. There is also a requirement that B did not appear in the proceedings.205 In considering this ground for having registration set aside, it is irrelevant that notice was given in accordance with the law of the relevant foreign place. 5.65  In Barclays Bank Ltd v Piacun,206 the judgment debtor, Anthony Piacun, left England in 1980. The bank brought proceedings to enforce a guarantee against him in England in 1981, and judgment in the sum of £276,000 was entered in default of appearance in 1982. The bank sought registration of the judgment in Queensland under the Reciprocal Enforcement of Judgments Act 1959 (Qld), as Mr Piacun had made his home in that state. The Supreme Court registered the judgment and refused to set it aside. On appeal to the Full Court of the Supreme Court, it was accepted that, even though made in default of appearance, the English judgment was final and conclusive. It was also accepted that the English court conceivably exercised a proper international jurisdiction on the ground that Piacun agreed to submit to its jurisdiction or that the guarantee had been entered through an office or place of business in England. However, the Full Court did not consider that Piacun had received notice of ‘proceedings in sufficient time to enable him to defend the proceedings’. Connolly J held that actual notice was required.207 In the English proceedings, substituted service had been ordered, and the first notice that Piacun received of anything relating to the proceedings was the notice that the English judgment had been registered in Queensland. Neither Connolly J nor Macrossan J was prepared to accept that notice of registration was sufficient.208 The registration of the English judgment was set aside. 5.66  In recent Australian decisions, courts have continued to demand that the defendant receive actual notice of the foreign proceedings or else registration of the judgment will be 202. Foreign Judgments Act 1991 (Cth) s 7(2)(a)(vii). 203. Foreign Judgments Act 1991 (Cth) s 7(2)(a)(vi). 204. Ramanathan v Naidu [2007] NSWSC 693; Quarter Enterprises Pty Ltd v Allardyce Lumber Co Ltd (2014) 85 NSWLR 404; [2014] NSWCA 3. 205. Foreign Judgments Act 1991 (Cth) s 7(2)(a)(v). 206. [1984] 2 Qd R 476. 207. At 478. 208. At 482.

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set aside. A plaintiff ’s informing the defendant that such proceedings exist or are likely to exist,209 or an awareness or expectation on the part of the defendant that such proceedings may be commenced, is insufficient.210

Public policy 5.67  The registration of a foreign judgment must be set aside if enforcement of the judgment would be contrary to public policy.211 Again, with one possible modification, this ground parallels the defence of public policy available for proceedings to enforce a foreign judgment brought at common law.212 The possible difference is that, as this is enforcing public policy under a federal statute (the Foreign Judgments Act), it is probably the public policy of Australia as a whole that must be considered. Enforcement at common law is more likely to implicate the public policy of the state or territory in question, which might then allow the assessment of policy to be made by reference to fundamental principles of the state’s or territory’s statute law. The enforcement of a foreign taxation judgment is generally considered to be contrary to public policy.213 However, the Act allows the registration of judgments made in some taxation matters in Papua New Guinea. These are limited to judgments for the recovery of Papua New Guinea income tax, and the Act expressly excludes additional and other tax payable in Papua New Guinea.214 It would therefore seem that, by necessary implication, this public policy ground should not be available to a respondent who is a judgment debtor under a judgment for Papua New Guinea income tax.

Incompatible judgments 5.68  The registration of a foreign judgment may be set aside by the registering Supreme Court if the matter in dispute in the foreign proceedings had, before it was adjudged in the foreign place, ‘been the subject of a final and conclusive judgment by a court having jurisdiction in the matter’.215 This is the one case in which registration need not be set aside — the court merely has a discretion to do so. Though uncommon, it is most likely to arise where the same matter was earlier adjudged in a second foreign place. If, for example, judgment in parallel proceedings were made in both Hentzau (first) and Ruritania (second), the Australian court has a discretion to maintain registration of the judgment made in Ruritania because, even though a separate judgment was rendered in Hentzau, the courts in both Ruritania and Hentzau may have determined the matter in a similar way. However, where the judgments made in Ruritania and Hentzau are incompatible, the judgment made in Hentzau must have a strong claim to priority and it should (it is submitted) be an exceptional case in which the court does not set aside registration of the judgment made

Maschmann v Wenzel [2007] NSWSC 850. Bank Polska Kasa Opieki Spolka Akcyjna v Zbigniew Opara (2010) 238 FLR 309; [2010] QSC 093 at [39]. Foreign Judgments Act 1991 (Cth) s 7(2)(a)(xi). Jenton Overseas Investment Pte Ltd v Townsing (2008) 221 FLR 398; [2008] VSC 470; Bank Polska Kasa Opieki Spolka Akcyjna v Zbigniew Opara (2010) 238 FLR 309; [2010] QSC 093 at [64]–[66]. 213. Government of India v Taylor [1955] AC 491. 214. Foreign Judgments Act 1991 (Cth) s 3(1). 215. Foreign Judgments Act 1991 (Cth) s 7(2)(b). 209. 210. 211. 212.

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in Ruritania. The Privy Council’s decision in Showlag v Mansour has been considered in this connection.217 For present purposes, it is important that Showlag v Mansour arose under the Jersey legislation that is the equivalent of the Foreign Judgments Act, and which also gives the courts of Jersey a discretion to set aside the registration of a foreign judgment when the matter had been the subject of a judgment of another court having jurisdiction in the matter. Two foreign judgments that were otherwise independently registrable in Jersey were incompatible, so the Privy Council applied a rule of chronological priority. The first judgment made had a superior claim to recognition in the forum. 216

Registration of interstate judgments Full faith and credit 5.69  Although the effect to be given in any Australian state or territory to judgments made in another state or territory is codified in the Service and Execution of Process Act 1992 (Cth), the underlying status of an interstate judgment to which the Act gives effect is directed by constitutional considerations. Section 118 of the Commonwealth Constitution — the ‘full faith and credit’ clause — 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.

A more extended analysis of s 118 is given in Chapter 11, where its implications for choice of law, which are more debatable, are considered at length.218 Section 118 of the Constitution used to be supplemented by s 18 of the State and Territorial Laws and Records Recognition Act 1901 (Cth), which provided: All public acts records and judicial proceedings of any state or territory, if proved or authenticated as required by this Act, shall have such faith and credit given to them in every Court and public office as they have by law or usage in the Courts and public offices of the state or territory from whence they are taken.

Section 18 has been repealed219 and replaced by s 185 of the Evidence Act 1995 (Cth). In the older case law s 18 was the provision to which the courts paid the most attention when discussing full faith and credit, but it now seems the position is the same regardless of whether s 118 of the Constitution or s 185 of the Evidence Act is relied upon: that is, an order or judgment of a state or territory court will be accorded the same status in another Australian court as it would have in the court of rendition.220 Such a result is said to be

216. 217. 218. 219. 220.

[1995] 1 AC 431. See 5.37. See 11.3–11.20. Evidence (Transitional Provisions and Consequential Amendments) Act 1995 (Cth) s 3. Marks v National and General Insurance Co Ltd [1993] ACTSC 84 (20 September 1993) at [14]; G v G (1985) 10 Fam LR 718 at 718–19; Rowe v Silverstein [1996] 1 VR 509; and especially Re DEF and the Protected Estates Act 1983 (2005) 192 FLR 92; [2005] NSWSC 534 at [48]–[58], [76].

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consistent with the ‘integrated system for the administration of the law in Australia’.221 The strength of this recognition is apparent from the early decision of Harris v Harris.222 5.70  The interstate judgment that the Victorian courts were asked to recognise in Harris v Harris was a decree of divorce made by the Supreme Court of New South Wales in 1937. That court could only grant a divorce if the petitioner had been domiciled in New South Wales. The husband of that dissolved marriage subsequently remarried, but later petitioned in the Supreme Court of Victoria for a divorce from the second wife on the ground of adultery. However, that divorce could only be granted if the second marriage was valid — and that question depended on the validity of the 1937 divorce. Fullagar J considered that the petitioner had been domiciled in Victoria since birth in 1906. That meant that the Supreme Court of New South Wales would not have had jurisdiction under its own rules to grant the divorce in 1937. Nor at common law would the divorce have normally been entitled to recognition, as it was not made by the court in the place where the parties were domiciled.223 Nevertheless, Fullagar J held that s 18 of the State and Territorial Laws and Recognition Act precluded the Victorian court from considering the jurisdiction of the New South Wales court to grant the 1937 divorce. As in New South Wales the decree was considered conclusive, it had to be treated as equally conclusive in Victoria and other parts of Australia. Ultimately, therefore, the second marriage was valid and could be dissolved. 5.71  In probate and administration cases, courts have held that s 18 of the State and Territorial Laws and Records Recognition Act and s 118 of the Constitution do not require the recognition of an interstate grant when recognition would not be accorded to the grant at common law.224 In Re an Alleged Incapable Person FCC and the Protected Estates Act 1983225 the Supreme Court of Queensland made orders under the Protected Estates Act 1983 (NSW), in the purported exercise of jurisdiction under the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW). However, the plaintiff in the Queensland proceedings had not initiated a claim under the Protected Estates Act, and had merely sought damages at common law for personal injuries. Consequently, when recognition of the orders was sought in the Supreme Court of New South Wales, Powell J held them to be a nullity and would not accord full faith and credit to them. This was despite the fact that, as Powell J said, ‘in the normal course, an order of a superior court of record of general jurisdiction cannot be treated as void, or non-existent, and, even if made beyond power, that order stands’ and would be recognised under the full faith and credit clause.226 Significantly, however, in the later decision of Re DEF and the Protected Estates Act 1983,227 which concerned very similar facts to Re FCC, Campbell J of the Supreme Court of New South Wales declined to follow the earlier decision. Campbell J felt that regardless of the procedural deficiencies in the order made in the Supreme Court of Queensland in the FCC case, it was still an order of 221. 222. 223. 224. 225. 226. 227.

Re DEF and the Protected Estates Act 1983 (2005) 192 FLR 92; [2005] NSWSC 534 at [76]. [1947] VLR 44. At 48; see 14.27. In the Will of Lambe [1972] 2 NSWLR 273; Re Butler [1969] QWN 48. (1990) 19 NSWLR 541. At 547. (2005) 192 FLR 92; [2005] NSWCA 534.

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a superior court which must be accorded full faith and credit in all Australian courts. The strong policy of interstate recognition from Harris v Harris has been reasserted.

Registration procedures 5.72  Part 6 of the Service and Execution of Process Act 1992 (Cth) sets out the mandatory procedures for the enforcement of a judgment made in another state or territory of Australia. This applies to any judgment made in any court in Australia. So, in addition to a judgment for a sum of money, Part 6 allows the registration of orders in specie, such as a decree for an injunction or specific performance.228 It also includes a judgment registered in another state or territory’s Supreme Court under the Foreign Judgments Act.229 The judgment may originate in any superior or inferior court; the term ‘court’ is defined to mean ‘a court of a state [or territory] and includes an authority exercising the powers of such a court’.230 5.73  To enforce in one state — ‘the forum’ — a judgment made in another state — ‘the rendering state’ — a copy of the judgment must be lodged with a court of similar jurisdiction in the forum.231 The ‘appropriate court’ in which to register the judgment is, if the court in the rendering state was the Supreme Court, the Supreme Court of the forum.232 If the judgment was made in an inferior court in the rendering state, the appropriate court is the court in the forum ‘in or by which relief as given by the judgment could have been given’. If more than one court in the forum qualifies as appropriate in these terms, registration should occur in the forum court of most limited jurisdiction.233 Where there is no appropriate court, registration of the judgment should take place in the forum’s Supreme Court.234 5.74  The only precondition to registration in the forum is that the judgment made in the rendering state must be enforceable in the rendering state.235 If it is, then the forum court must register the judgment.236 Once registration occurs, the judgment has the same force and effect as if it had been made by the registering court in the forum.237 The effect of this procedure is that the judgment is accorded the most complete recognition possible. Its enforcement anywhere in Australia is determined solely by its ability to be enforced in the state or territory where it was first rendered. 5.75  There are no defences to registration of a judgment made in another state or territory under the Service and Execution of Process Act, and once the judgment is registered there are no grounds on which registration can be set aside. Further, the Act expressly provides that enforcement cannot be impeded by any defence available under the common law

228. 229. 230. 231. 232. 233. 234. 235. 236. 237.

Service and Execution of Process Act 1992 (Cth) s 3(1). Service and Execution of Process Act 1992 (Cth) s 3(1). Service and Execution of Process Act 1992 (Cth) s 3(1). Service and Execution of Process Act 1992 (Cth) s 105(1). Service and Execution of Process Act 1992 (Cth) s 105(6). Service and Execution of Process Act 1992 (Cth) s 105(6). Service and Execution of Process Act 1992 (Cth) s 105(6). Service and Execution of Process Act 1992 (Cth) s 105(5). Service and Execution of Process Act 1992 (Cth) s 105(1). Service and Execution of Process Act 1992 (Cth) s 105(2).

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rules of private international law.238 If the defendant/judgment debtor B wishes to resist enforcement in any state that has registered the judgment, the only course available to B is to seek a stay of enforcement in the forum. The stay is only available to enable B to reargue the case in the rendering state where the judgment was first made.239 The scheme therefore effectively compels B to raise all questions in the original proceedings, because there is no opportunity to raise other issues at the point of enforcement in another state or territory.

Registration of New Zealand judgments 5.76  One of the present authors argued240 that the trans-Tasman market area would be better served if New Zealand were incorporated into the existing scheme for jurisdiction and judgments that is currently in place for the Australian states and territories. For matters internal to the trans-Tasman market area, the jurisdiction of an Australian or New Zealand court would be determined purely by reference to common law principles of forum conveniens, the resulting judgment would be enforceable anywhere in Australia or New Zealand simply by registration in the relevant state, territory or New Zealand court, there would be no defences to registration in the relevant Australian or New Zealand forum, and the full range of judicial orders (including interim orders and orders in specie) would become registrable. 5.77  Many of these proposals were adopted in the Trans-Tasman Proceedings Act 2010 (Cth), with Pt 7 of the Act providing that final and conclusive money and non-money judgments from New Zealand may now be registered in an Australian court. ‘Final and conclusive’ is to be interpreted in accordance with the common law principles referred to above at 5.22.241 So, for example, an ex parte freezing order that is expressed to operate for a limited period of time or until further order was held not to be a final and conclusive judgment.242 The following judgments may also be registered: a judgment given in criminal proceedings where a person is required to pay an injured person a monetary sum by way of compensation, damages or reparation; a judgment involving a regulatory action criminal fine; a judgment in New Zealand market proceedings (which need not be final and conclusive but may be an interlocutory order); and a judgment registered in a New Zealand court under the Reciprocal Enforcement of Judgments Act 1934 (NZ).243 Some judgments remain excluded from registration under the Trans-Tasman Proceedings Act, including orders made in relation to dissolution of a marriage; orders made to enforce an obligation to maintain a spouse or a de facto partner; orders made to enforce a child support obligation; orders made under legislation dealing with the proceeds of crime; orders relating to the granting of probate or letters of administration of the estate of a deceased person; orders

238. Service and Execution of Process Act 1992 (Cth) s 109; R v White and Noonan; Ex parte TA Field Pty Ltd (1975) 133 CLR 113 at 117. 239. Service and Execution of Process Act 1992 (Cth) s 106. 240. Mortensen, above n 7. 241. LFDB v SM [2015] FCA 725 at [94]. 242. At [95]–[100]. 243. Trans-Tasman Proceedings Act 2010 (Cth) s 66(1).

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for guardianship; or orders relating to the care, control or welfare of a child. There are only three grounds for setting aside registration of a New Zealand judgment: that (i) the judgment was contrary to Australian public policy; (ii) it was registered in contravention of the Trans-Tasman Proceedings Act; or (iii) the subject matter of the judgment was immovable property or was an in rem judgment in respect of movable property and neither such property was situated in New Zealand.245 In relation to the public policy defence, the narrow interpretation from the common law noted at 5.34 above applies.246 Consequently, there is no breach of public policy where a New Zealand court’s approach to a problem is not one that would be adopted by an Australian court. A mere difference in laws is insufficient. Finally, an Australian court cannot refuse to enforce a New Zealand judgment on the ground that it would involve enforcement of a New Zealand public law; involves an amount payable in respect of New Zealand tax; or is a civil regulatory penalty or regulatory regime criminal fine.247 244

244. 245. 246. 247.

Trans-Tasman Proceedings Act 2010 (Cth) s 66(2). Trans-Tasman Proceedings Act 2010 (Cth) s 72(1). LFDB v SM [2017] FCAFC 178. Trans-Tasman Proceedings Act 2010 (Cth) s 79(2).

169

Chapter 6 International Arbitration Introduction 6.1  In the context of private international law, the three main issues in international commercial arbitration are: enforcement of international arbitration agreements; applicable law; and enforcement of arbitral awards. Until 2010, international arbitration in Australia was regulated by two main statutory schemes: the International Arbitration Act 1974 (Cth) and uniform state legislation; for example, the Commercial Arbitration Act  1984 (Vic). The effect of amendments to the International Arbitration Act and the new uniform state legislation1 is that the Act now exclusively regulates international commercial arbitration in Australia.2

Enforcement of international arbitration agreements 6.2  The International Arbitration Act was enacted in 1974, initially to give effect to the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). The convention had 159 state parties as of May 20183 and has effectively become a universal, global law. The convention was attached to the International Arbitration Act and enacted in two important provisions, the key provision for arbitration agreements being s 7. This section provides, in effect, for the mandatory stay of court proceedings brought in breach of an arbitration clause or agreement where the place of arbitration is a member state of the convention (other than Australia) or a party to the arbitration agreement is incorporated in, or has its principal place of business in, such a country.4 The large number of countries that are party to the New York Convention has meant that, in practice, these conditions have been readily complied with. A key element in s 7 is that the stay remedy is mandatory: once the requirements of the section are satisfied, a party cannot rely on arguments of convenience or discretion to resist the grant of such

1. 2.

3. 4.

See now, for example, Commercial Arbitration Act 2011 (Vic). For a fuller discussion of the 2010 amendments to the International Arbitration Act 1974 (Cth), see R Garnett and L Nottage, ‘The 2010 Amendments to the International Arbitration Act: A New Dawn for Australia?’ (2011) 7 Asian International Arbitration Journal 29; ‘What Law (if Any) Now Applies to International Commercial Arbitration in Australia?’ (2012) 35 University of New South Wales Law Journal 953. See  (accessed 25 May 2018). International Arbitration Act 1974 (Cth) ss 3(3), 7(1); ACD Tridon Inc v Tridon Australia Pty Ltd [2002] NSWSC 896 at [96].

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an order. A contrast may be made with jurisdiction clauses in this respect.5 An arbitration clause which, in its terms, creates an option to arbitrate (for example, the parties may submit any disputes to arbitration) is nevertheless enforceable under s 7 on the basis that once a dispute has arisen and a party elects to go to arbitration a binding obligation to arbitrate comes into existence.6

Writing requirement 6.3  To obtain a stay, the applicant must also show that there is an ‘[arbitration] agreement in writing’ under s  3 of the International Arbitration Act which is defined in Art II(2) of  the  convention as ‘an arbitral clause in a contract or an arbitration agreement signed by the [parties] or contained in an exchange of letters or telegrams’. The policy underlying the writing requirement is to ensure that an agreement was in fact consented to and concluded and that the terms of the arbitral clause are clear and susceptible of proof.7 The burden of proof lies on the party seeking to satisfy the writing requirement.8 Further, for an ‘exchange’ of documents to occur there must be a mutual transfer between the parties; a mere transmission from one party to the other is insufficient.9 In the 2010 amendments to the International Arbitration Act, the definition of ‘in writing’ was expanded10 to include an agreement whose ‘content is recorded in any form’ and which ‘is contained in an electronic communication and the information in that communication is accessible so as to be usable for subsequent reference’. The aim of this amendment is to ensure that an agreement in electronic form will be enforceable under Pt II of the Act. A further amendment in 201011 provides that a reference in a contract to any document containing an arbitration clause is also an ‘arbitration agreement’, provided that the reference is such as to make the clause part of the contract. Both new provisions apply to arbitration agreements entered into on or after 6 July 2010.12

A matter capable of settlement by arbitration 6.4  In order to defeat a stay application and avoid a dispute being referred to arbitration, a party will need to show that there is no ‘matter capable of settlement by arbitration’.13 In effect, the party must establish one of the following: that (a) the subject matter of the dispute is not ‘arbitrable’, in the sense that the public interest requires the issues to be heard 5.

6. 7. 8. 9. 10. 11. 12. 13.

See Chapter 4. Article 8 of the 1985 UNCITRAL Model Law on International Commercial Arbitration (the Model Law) (implemented in Australia in s 16(1) of the International Arbitration Act) provides an alternative and independent basis for a stay of court proceedings in favour of arbitration; see Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45 at [204]. The terms of Art 8 are similar to s 7. Administration of Norfolk Island v  SMEC Australia Pty Ltd [2004] NFSC 1 (Supreme Court of Norfolk Island). HIH Casualty & General Insurance Ltd (in liq) v Wallace (2006) 68 NSWLR 603; [2006] NSWSC 1150 at [135]. HIH Casualty & General Insurance Ltd (in liq) v Wallace (2006) 68 NSWLR 603; [2006] NSWSC 1150 at [145]. HIH Casualty & General Insurance Ltd (in liq) v Wallace (2006) 68 NSWLR 603; [2006] NSWSC 1150 at [145]. International Arbitration Act 1974 (Cth) s 3(4). International Arbitration Act 1974 (Cth) s 3(5). International Arbitration Amendment Act 2010 (Cth) Sch 1, item 28. International Arbitration Act 1974 (Cth) s 7(2).

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in a court; (b) the plaintiff ’s claims do not fall within the scope of the arbitration agreement and so are beyond an arbitral tribunal’s jurisdiction; or (c) the arbitration agreement is invalid or inoperative. Each of these elements is addressed below. Note, however, that to obtain a stay, there is no requirement that the claims or defences of the parties be ‘sustainable’ or have a reasonable prospect of success.14 Similarly, the fact that a matter might be resolved more quickly by a court and such quicker resolution is advantageous to one or both parties does not render the matter incapable of settlement by arbitration.15

Arbitrability 6.5  The concept of arbitrability has widened in recent years, to the extent that most commercial disputes involving private parties, with no rights of third parties involved, can be resolved by an arbitral tribunal. This category would include misleading and deceptive conduct claims under s 18 of the Australian Consumer Law 2010 (Cth),16 unless possibly if the deception alleged is of the public in general as opposed to a party to the contract.17 Arbitrability may also not exist where one of the parties is a ‘consumer’.18 Both competition19 and corporations matters are now generally arbitrable,20 although the power to issue a winding up order must remain with the courts because of the possible impact on third party creditors.21 Intellectual property matters may also be resolved by arbitration, at least where no ruling on the validity of a registered right such as a trade mark or patent with more than inter partes effect is involved.22 In AED Oil Ltd v Puffin FPSO Ltd (No 2), the status of taxation claims was left open, although the court found in that case that a dispute concerning the effect and operation of a term in a contract whereby one party conferred on the other an indemnity in respect of taxation liabilities was arbitrable.23 Furthermore, in Passlow v Butmac Pty Ltd,24 a statutory claim for contribution was held to be capable of resolution by arbitration even where the statute provided that contribution may be awarded where found by the court to be just and equitable.25 A dispute between a trustee 14. 15. 16. 17. 18. 19.

20. 21. 22.

23. 24. 25.

Robotunits Pty Ltd v Mennel [2015] VSC 268 at [32]. Roy Hill Holdings Pty Ltd v Samsung C&T Corp [2015] WASC 458 at [41]. Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 30 NSWLR 160. Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45 at [186]. See generally R Garnett, ‘Arbitration of Cross-Border Consumer Transactions in Australia: A Way Forward?’ (2017) 39 Sydney Law Review 569. Mitsubishi Motors Corp v Soler Chrysler-Plymouth, Inc (1985) 473 US 614; Casaceli v Natuzzi SpA (2012) 292 ALR 143; [2012] FCA 691 at [50] (exclusive dealing); but compare Nicola v Ideal Image Development Corp Inc (2009) 215 FCR 76; [2009] FCA 1177 at [59], [61], where the matter was left open. See ACD Tridon Inc v Tridon Australia Pty Ltd [2002] NSWSC 896; Robotunits Pty Ltd v Mennel [2015] VSC 268 at [69]; WDR Delaware Corp v Hydrox Holdings Pty Ltd [2016] FCA 1164. ACD Tridon Inc v  Tridon Australia Pty Ltd [2002] NSWSC 896 at [192]; WDR Delaware Corp v  Hydrox Holdings Pty Ltd [2016] FCA 1164 at [161]–[162]. N Blackaby, C Partasides, A Redfern and M Hunter, Redfern and Hunter on International Arbitration, 5th ed, Oxford University Press, 2009, p 125. In Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd (2011) 279 ALR 772; [2011] NSWSC 268, a dispute concerning the rights and obligations of parties to a contractual licence of a patent was held to be arbitrable. Copyright claims were held to be arbitrable in Desputeaux v Editions Chouette 2003 SCC 17. [2009] VSC 534 (reversed on other grounds: (2010) 27 VR 22; [2010] VSCA 37). [2012] NSWSC 225. See also Flint Ink NZ Ltd v Huhtamaki Australia Pty Ltd [2014] VSCA 166.

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and a beneficiary was also found to be arbitrable even where the arbitral tribunal would not have the power to remove the trustee directly.26 Criminal offences, employment disputes and family law matters all, however, remain generally non-arbitrable, although Pt II Div 4 of the Family Law Act 1975 (Cth) enables arbitration of some family law matters. A dispute, however, does not cease to be arbitrable merely because a non-party has an interest in the outcome of the arbitration and cannot be heard in the proceeding.27

Scope of the arbitration agreement 6.6  The scope of the arbitration agreement has been the subject of many Australian decisions, not all consistent with one another. Fortunately, the law has been largely clarified by the Full Federal Court in Comandate Marine Corp v Pan Australia Shipping Pty Ltd,28 where it was stressed that in interpreting the scope of an arbitration agreement or clause a wide and flexible approach should be taken, with the aim of referring as many of the plaintiff ’s claims as possible to arbitration. Narrow views of arbitration agreements lead to disputes being fragmented between courts and arbitral tribunals, an outcome which is not only inconvenient but may lead to inconsistent outcomes. Consequently, in Comandate it was held that where the parties had agreed to refer to London arbitration ‘all disputes arising out of the contract’, this wording would embrace both claims for breach of contract and breach of s 52 of the Trade Practices Act 1974 (Cth) (now s 18 of the Australian Consumer Law), based on pre-contractual misrepresentations. The court noted that the words ‘arising out of ’ would now be considered equivalent in scope to the previously-used wider term ‘arising in connection with’ and would cover matters relating to the making, terms and performance of the principal contract, as well as its breach.29 Such an approach therefore emphasises that the parties chose to arbitrate and this intention should be given effect to, and that less concern should be had for the particular wording used in their agreement. A broad approach to construction is justified by both party autonomy and the needs of international commerce, which require certainty and efficiency in dispute resolution. In more recent cases, therefore, stays have been almost routinely ordered where parties have used generous wording in their arbitration clause.30 However, where parties ‘carve out’ from an arbitration clause a sphere of disputes to be referred to litigation, and a party sues in court in accordance with the carve out, the court will not stay the proceedings. In Seeley International Pty Ltd v Electra Air Conditioning BV,31 parties to an agreement had provided that ‘any question or difference of opinion shall be referred to arbitration in Melbourne’, but also that ‘nothing in this clause … prevents a party from seeking injunctive or declaratory 26. 27. 28. 29. 30.

31.

Rinehart v Welker [2012] NSWCA 95 at [176]. Giedo van der Garde BV v Sauber Motorsport AG [2015] VSC 80 at [18] (affirmed (2015) 317 ALR 786). (2006) 157 FCR 45; [2006] FCAFC 192. At [175]. See, for example, WesTrac Pty Ltd v Eastcoast OTR Tyres Pty Ltd (2008) 219 FLR 461; [2008] NSWSC 894; Nicola v Ideal Image Development Corp Inc (2009) 215 FCR 76; [2009] FCA 1177; Casaceli v Natuzzi SpA (2012) 292 ALR 143; [2012] FCA 691; Cape Lambert Resources Pty Ltd v MCC Australian Sanjin Mining Pty Ltd [2013] WASCA 66; Robotunits Pty Ltd v Mennel [2015] VSC 268; Eriez Magnetics Pty Ltd v Duro Felguera Australia Pty Ltd [2017] WASC 304; Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170. (2008) 246 ALR 589; [2008] FCA 29 (aff ’d: [2008] FCAFC 169). For a fuller discussion, see  R Garnett, ‘Coexisting and Conflicting Jurisdiction and Arbitration Clauses’ (2013) 9 Journal of Private International Law 361.

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relief in the case of material breach or threatened breach of this agreement’. The plaintiff sought a declaration from the court that the defendant was in breach of the agreement and had engaged in conduct in violation of Australian consumer protection legislation. The court refused to stay its proceedings in favour of arbitration. 6.7  The court in Comandate also found that where parties enter into foreign arbitration and choice of law clauses, they should be held to their bargain even if the result is that they are not entitled to bring claims under an Australian statute such as the Australian Consumer Law because, for example, the foreign arbitrator refuses to apply that legislation.32 While in some decisions before Comandate courts had suggested that parties should not be able to contract out of the Trade Practices Act by choice of foreign law and arbitration,33 this view has now been superseded by the policy of enforcing arbitration agreements where possible. 6.8  A court can also impose conditions on the grant of a stay under s  7(2) of the International Arbitration Act and make interim or supplementary orders in relation to any property that is the subject matter of the stay application under s 7(3). Such powers, however, should not be exercised to usurp the jurisdiction of the arbitral tribunal but only to preserve the rights of the parties until the matter is before the tribunal.34

Third parties 6.9  The presence of third parties has also raised some important issues in stay applications. First, s  7(4) of the International Arbitration Act allows a person ‘claiming through or under a party’ to an arbitration agreement (as well as a party itself) to enforce an arbitration agreement by stay or have the agreement enforced against it. The expression ‘claiming through or under a party’ has been interpreted to require the satisfaction of two conditions. The first is where there is a relationship of sufficient proximity between the person claiming through or under the original party to the agreement and the second is where a claim or defence is ‘derived from’ such party.35 Examples of persons who were found to have the requisite proximity with the original party to the arbitration agreement and whose claims or defences were ‘derived’ from such party include a liquidator of a party;36 an assignee of a debt of a party;37 a subsidiary of a party;38 and a parent company and guarantor of a party.39 6.10  Sufficient ‘proximity’ and derived rights were also found to exist between subsidiaries of the same corporate group in Flint Ink NZ Ltd v Huhtamaki Australia Pty Ltd.40 Flint Ink concerned a plaintiff, Lion Dairy, who sued Huhtamaki Australia (HA) for losses to products caused by defective packaging supplied to it by HA. The packaging had been 32. 33. 34. 35. 36. 37. 38. 39. 40.

Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCAFC 192 at [241]; see also, to the same effect, Transfield Philippines Inc v Pacific Hydro Ltd [2006] VSC 175 at [73]. See, for example, Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) 90 FCR 1 at 23–4. Cape Lambert Resources Pty Ltd v MCC Australian Sanjin Mining Pty Ltd [2013] WASCA 66 at [95], [110]. BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169. Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332. The Leage [1984] 2 Lloyd’s Rep 259. Allergan Pharmaceuticals Inc v Bausch & Lomb Inc [1985] ATPR 40-636. AED Oil Ltd v Puffin FPSO Ltd (No 2) [2009] VSC 534. [2014] VSCA 166.

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manufactured in New Zealand by Huhtamaki New Zealand (HNZ), using ink supplied to it by a New Zealand company, Flint Ink. HA argued that if the packaging was defective, the defects were caused by the ink supplied by Flint Ink. HA filed a third party contribution action against Flint Ink and Flint Ink sought a stay based on a New Zealand arbitration agreement entered into between it and HNZ. Flint Ink argued that HA was bound by the arbitration clause as a party claiming through or under HNZ The Victorian Court of Appeal agreed, finding that HA had sufficient proximity to HNZ, as both companies were part of the same corporate group. HA’s claim was also derived from HNZ, as both companies manufactured and supplied packaging for products, including to the plaintiff, and both companies were susceptible to suffering economic loss in the event of a breach by Flint Ink. The particulars of breach in the third party claim identified a failure by Flint Ink to exercise reasonable care only in relation to HNZ, but no acts of breach were specified in relation to HA. Consequently, any breach of duty committed by Flint Ink against HA was wholly derivative of any breach by Flint Ink against HNZ, and so Flint Ink’s liability to HA could only arise if it were liable to HNZ. 6.11 The Huhtamaki case was, however, recently not followed by the Full Court of the Federal Court in Hancock Prospecting Pty Ltd v  Rinehart.41 The Full Court rejected the view that subsidiaries from the same corporate group have the requisite proximity to one another. Merely because persons are in a close relationship or their respective rights are closely related is not sufficient.42 Further, in Hancock, no derivative rights existed in the situation where a party to an arbitration agreement was sued for breach of fiduciary duty and a third party was sued as a knowing recipient of property that it had received from the original party. Liability for knowing receipt is direct and not derivative of liability for breach of fiduciary duty.43 Hence, the third party could not claim the benefit of the arbitration clause. 6.12  Also, as regards third parties, the mere fact that a plaintiff has sued in the same action another defendant who is not a party to an arbitration clause will not prevent a stay of the proceedings brought against a defendant who is bound by such a clause.44 This conclusion flows from the fact that a stay is mandatory where the requirements of s 7 are satisfied despite the inconvenient outcome of proceedings being fragmented between an arbitration tribunal and the court.

Invalid and inoperative arbitration agreements 6.13  An arbitration clause or agreement may, however, be invalid due to either the operation of a mandatory statute of the forum or conduct by a party, such as fraud or unconscionability, in the procuring of the agreement. Statutory provisions such as s 11(2) of the Carriage of Goods by Sea Act 1991 (Cth) and s 43(1) of the Insurance Contracts Act 1984 (Cth) prohibit arbitration in matters covered by the enactment and in such a 41. 42. 43. 44.

[2017] FCAFC 170. At [311]. At [316]. Abigroup Contractors Pty Ltd v Transfield Pty Ltd (1998) 217 ALR 435; [1998] VSC 103; Shipowners Mutual Protection and Indemnity Assn v Hodgetts [1999] 2 Qd R 58 (QCA).

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case a stay cannot be awarded because there is no arbitration agreement to enforce. This conclusion is confirmed by s 7(5) of the International Arbitration Act, which provides that a court is not required to order a stay where the arbitration agreement is ‘null and void, inoperative or incapable of being performed’. Yet, even in the context of s  11(2) above, which invalidates a foreign arbitration clause in a sea carriage document, courts in recent decisions have held that the prohibition does not apply to an arbitration provision in a voyage charterparty, as opposed to a clause in a bill of lading.46 The allegation of invalidity must, however, relate to the arbitration clause itself; arguments that the principal contract in which the clause is contained will not prevent enforcement of the arbitration clause and a stay being granted. This outcome flows from the acceptance by Australian courts of the doctrine of separability, which provides that the arbitration agreement and the principal contract in which it is normally contained are separate contracts, with an arbitrator having capacity to adjudicate questions relating to the validity of the principal contract.47 The separability doctrine applies unless the parties by their agreement have manifested an intention that the arbitration agreement is not to survive termination of the underlying contract.48 45

6.14  Australian courts, in several decisions, have considered the argument that an arbitration agreement has been rendered ‘inoperative’ because of waiver by one of the parties. However, clear evidence that a party had ‘intentionally and unequivocally abandoned its right to arbitrate’49 is required to establish this defence. So, for example, a waiver may arise where a party makes an application to the court for security for costs,50 where it has been guilty of gross delay51 in making a stay application or where it filed a cross-claim and/or defence on the merits in court.52 Note, however, that the filing of a defence in court proceedings to avoid the imminent threat of default judgment, when accompanied by a clear intention to arbitrate, is not a waiver.53 In addition, where parties, after a dispute arose, entered a new agreement submitting the dispute within the scope of the arbitration clause to resolution by a court, the arbitration clause was also found to be inoperative.54 Repudiation of an arbitration agreement by a party would also have that effect.55 An arbitration agreement is 45. 46.

47. 48. 49. 50. 51. 52. 53. 54. 55.

See also Insurance Act 1902 (NSW) s 19; HIH Casualty & General Insurance Ltd (in liq) v Wallace (2006) 68 NSWLR 603; [2006] NSWSC 1150. Dampskibsselskabet Norden A/S v  Beach Building and Civil Group Pty Ltd (2013) 216 FCR 469; [2013] FCAFC 107; Jebsens International (Australia) Pty Ltd v  Interfert Australia Pty Ltd (2012) 112 SASR 297; [2012] SASC 50. Ferris v Plaister (1994) 34 NSWLR 474; Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCAFC 192 at [229]. Roy Hill Holdings Pty Ltd v Samsung C&T Corp [2015] WASC 458 at [23]–[24]. Zhang v Shanghai Wool and Jute Textile Co Ltd (2006) 201 FLR 178; [2006] VSCA 133; Roy Hill Holdings Pty Ltd v Samsung C&T Corp [2015] WASC 458 at [33]. La Donna Pty Ltd v Wolford AG (2005) 194 FLR 26; [2005] VSC 359. ACD Tridon Inc v  Tridon Australia Pty Ltd [2002] NSWSC 896; BHPB Freight Pty Ltd v  Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169 at 185; [2008] FCA 551. BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169; [2008] FCA 551. Eisenwerk v Australian Granites Ltd [2001] 1 Qd R 461. Bakri Navigation Co Ltd v ‘Golden Glory’ Glorious Shipping SA (1991) 217 ALR 152; Monde Petroleum SA v Westernzagros Ltd [2015] EWHC 67. John Downing v Al Tameer Establishment [2002] EWCA Civ 721.

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not, however, rendered inoperative merely because neither party ‘enlivened’ the clause by giving notice of a dispute to the other party in accordance with their agreement.56

Applicable law in international arbitration 6.15  The issue of applicable law in international commercial arbitration is complex and requires a close analysis of the relevant statutory regime. The three principal laws to be considered are: (a) the law governing the substance or merits of the dispute (the lex causae); (b) the law governing the arbitration agreement; and (c) the law governing the arbitration procedure (the lex arbitri).

Law governing the substance Express choice of law and mandatory rules 6.16  The law governing the substance or merits of the dispute is in most cases the law which applies to the principal contract in which the arbitration clause or agreement is contained, since most disputes in international arbitration concern this contract. In their contracts, parties will often have made an express choice of the substantive law (normally the law of a country or, in a federal system, the law of a state or province). This selection will be generally given effect to according to principles of choice of law for contracts57 where the choice was made in good faith and (possibly) does not infringe mandatory rules of the forum. A complication, however, in respect of mandatory rules is that an international arbitration tribunal does not have a ‘forum’ in the same sense as a national court; it is a temporary body created by the agreement of the parties to resolve a discrete category of disputes as defined in the agreement. Arguably, therefore, an arbitral tribunal is not bound by the mandatory rules of the country in which the arbitration takes place, at least as far as substantive law is concerned. Some support for this view comes from Art 28(1) of the Model Law, which provides that ‘the 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’. The absence of reference to mandatory rules in this provision possibly suggests that they need not be applied by the tribunal in an arbitration with the Model Law as procedural law.

Lex mercatoria 6.17  Article 28(1) requires an arbitral tribunal to give effect to the ‘rules of law’ as are chosen by the parties. The use of the plural ‘rules’ here may suggest that the drafters of the Model Law have intended that the parties could select something other than a domestic legal system as the applicable substantive law; for example, transnational commercial law principles or a lex mercatoria. Supporters58 of such a transnational law point to the development of increasingly uniform customs and practices of international trade such as the UNIDROIT Principles of International Commercial Contracts, the Uniform Customs 56. 57. 58.

Siam Steel International PLC v Compass Group (Australia) Pty Ltd [2014] WASC 415. See 17.7–17.13. See, for example, C Stoecker, ‘The Lex Mercatoria: To What Extent Does it Exist?’ (1990) 7 Journal of International Arbitration 101.

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and Practices on Documentary Credits and the Incoterms of the International Chamber of Commerce which, taken together, may be said to constitute an international customary law. Alternatively, the lex mercatoria may be seen as a method or technique59 whereby an arbitral tribunal can draw upon a range of diverse transnational sources to resolve a particular dispute. While common law commentators were initially sceptical about the existence of a lex mercatoria,60 a more relaxed attitude now seems to prevail as can be seen from a decision of the English Court of Appeal, where an award in which an arbitral tribunal applied ‘internationally accepted principles of law governing contractual relations’ was enforced.61

Amiable composition 6.18  In one respect, the Model Law clearly allows parties to choose an alternative to a domestic law. Article 28(3) provides that the parties to an arbitration agreement may authorise the tribunal in writing to resolve the dispute by reference to considerations of general justice and fairness (often referred to as the doctrine of amiable composition). Such an option, at least in common law countries, is rarely exercised.

No express choice of law 6.19  The next issue to consider is what substantive law will be applied by an international arbitration tribunal or court where the parties have not made an express choice in their agreement. According to general principles of choice of law for contract, an Australian court will first look for an implied choice of law by the parties and if this cannot be found then the law with which the contract is most closely connected will be sought. There is High Court authority62 to the effect that the choice of a place or seat of arbitration will constitute an implied choice of such law as the substantive law of the contract, although there have been cases where such a choice has been overcome by a preponderance of connections with another country.63 It should, however, be noted that the above principles are the Australian common law choice of law rules and may not necessarily apply in the case of a Model Law arbitration. Article 28(2) of the Model Law provides that in the absence of an express choice, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable. It is suggested, though, that in the case of an arbitration with an Australian seat, Australian choice of law rules would most likely be applied under Art 28(2).

Law governing the arbitration agreement 6.20  In practice, the law governing the arbitration agreement is rarely expressly chosen by the parties, although it does exist as a discrete entity because the arbitration clause is a legally separable agreement from the principal contract in which it is usually contained. The law governing the arbitration agreement determines issues such as the ascertainment of the 59. 60. 61. 62. 63.

E Gaillard, ‘Transnational Law: A Legal System or a Method of Decision-Making?’ (2001) 17 Arbitration International 62. See  especially M Mustill, ‘The New Lex Mercatoria: The First Twenty-Five Years’ (1987) 4 Arbitration International 86. Deutsche Schachtbau-und Tiefbohrgesellschaft mbH v Shell International Petroleum Co Ltd (No 1 & 2) [1990] 1 AC 295. Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418. Compagnie Tunisienne de Navigation SA v Compagnie d’Armement Maritime SA [1971] AC 572.

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parties to the agreement and the validity and scope of the agreement. In Australian court decisions, when the law governing the arbitration agreement is foreign it has only been occasionally pleaded.64 Where the arbitration agreement is a clause in a larger contract it has been assumed in most cases that the law governing the arbitration agreement is the same as that applicable to the principal contract, at least where the law of the principal contract has been expressly chosen by the parties.65 Where, however, no such choice has been made, it has been held that the governing law of the arbitration agreement should be the same as the law of the place or seat of arbitration.66 The application of mandatory rules of the forum to arbitration agreements (for example, rules which invalidate such agreements) is not entirely clear, although, as discussed above,67 such rules clearly apply in the context of stay applications in Australian courts, pursuant to s 7(5) of the International Arbitration Act.

Law governing the arbitral procedure The seat of the arbitration 6.21  The third major law in international arbitration is the law governing the arbitral procedure (the lex arbitri), which concerns matters such as the powers and duties of arbitrators, the requirements for their appointment and removal, challenges to awards, pleadings, hearings, evidence and award of interim measures by the arbitral tribunal and the court. It is now well accepted that the arbitral procedural law is the law of the place where the arbitration is to be held, often referred to as the ‘seat’ of the arbitration.68 While courts have recognised that it is theoretically possible for parties to choose the procedural law of another country to govern their arbitration, such a choice is rarely assumed to have been made given the practical complications that would result.69 It is also important to note the difference between the seat of the arbitration and a place where the arbitral tribunal chooses to conduct part of the proceedings, inspect evidence or examine witnesses.70 Once agreed, the seat of the arbitration does not change even when the tribunal conducts its hearings at a different place or places. To alter the seat or procedural law, a new, express agreement between the parties achieving this result is required.71 6.22  It is also common in arbitrations conducted under the auspices of an arbitral institution (such as the Australian Centre for International Commercial Arbitration 64. 65.

66. 67. 68. 69. 70. 71.

Recyclers of Australia Pty Ltd v Hettinga Equipment Inc (2000) 100 FCR 420; [2000] FCA 547; BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169; [2008] FCA 551. International Tank & Pipe SAK v Kuwait Aviation Fuelling Co KSC [1975] QB 224; Recyclers of Australia Pty Ltd v Hettinga Equipment Inc (2000) 100 FCR 420; [2000] FCA 547 at [22]; compare Sulamerica Cia Nacional de Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638, where the law of the principal contract was not applied because it would have invalidated the arbitration agreement. The law of the seat of arbitration was chosen instead. Deutsche Schachtbau-und Tiefbohrgesellschaft mbH v Shell International Petroleum Co Ltd (No 1 & 2) [1990] 1 AC 295 at 310. See 6.13. James Miller & Partners v Whitworth Street Estates (Manchester) Ltd [1970] AC 583; Shagang South-Asia (Hong Kong) Trading Co Ltd v Daewoo Logistics [2015] EWHC 194 (Comm). Naviera Amazonica Peruana SA v Compania Internacional de Seguros del Peru [1988] 1 Lloyd’s Rep 116. Model Law Art 20(2). PT Garuda Indonesia v Birgen Air [2002] SGCA 12 (Singapore CA).

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(ACICA)) for the procedural rules of such an institution to be incorporated in the arbitration agreement. Such rules will be applied by the arbitral tribunal subject to compliance with any mandatory provisions of the lex arbitri, which continues to operate as the supervisory procedural law of the arbitration. 72

The Model Law 6.23  In 1989, the Commonwealth Parliament enacted the Model Law in s  16 of the International Arbitration Act. The Model Law was developed by the United Nations as a law of arbitral procedure to be adapted by member states for the conduct of arbitrations within their territories. It was intended to be a vehicle for global harmonisation of arbitration law based on the principles of party autonomy and reduced judicial interference in the arbitral process. Such policy is reflected in the limited grounds for court removal of arbitrators (under Arts 12 and 14 of the Model Law) and for setting aside of awards (under Art 34). The Model Law, however, only applies to ‘international commercial arbitration’,73 with the terms ‘international’ and ‘commercial’ broadly defined. In effect, for an arbitration not to be ‘international’ it would have to be between two Australian parties providing for arbitration in Australia with performance of any contractual obligations occurring wholly within the country. Similarly, almost every conceivable business relationship would fall within the scope of ‘commercial’, except for consumer and employment agreements.74 A dispute over the ownership and entitlement to valuable assets is commercial despite being between members of a family.75 6.24  Once the parties’ agreement is found to involve ‘international commercial arbitration’, the Model Law will apply as the procedural law of the arbitration. However, the drafters of the 1989 amendments to the International Arbitration Act proceeded to allow parties to exclude the Model Law if they wished. Under the pre-July 2010 version of s 21 of the International Arbitration Act, the parties could agree that ‘any dispute that has arisen between them is to be settled otherwise than in accordance with the Model Law’. The intention of the drafters in enacting the old s 21 was to give parties further flexibility by allowing them to choose a procedural law other than the Model Law to govern their arbitration, in particular the previous uniform state legislation, which had features, such as a right of appeal on an error of law, not found in the Model Law. Parties occasionally chose the uniform state legislation in preference to the Model Law.76 6.25  More controversially, some courts also took the view that the choice by parties of procedural rules of an arbitral institution such as the International Chamber of Commerce, or ad hoc rules, in their arbitration agreement also amounted to an exclusion of the Model Law under s 21. Such an approach ignored the fact that Art 19 of the Model Law expressly allows parties to choose their own procedural rules, as well as having the unfortunate and unanticipated result that the uniform state legislation applied to the arbitration as the 72. 73. 74. 75. 76.

The ACICA Rules may be found at . Model Law Art 1. See Model Law Art 1(1) n 2 for the definition of ‘commercial’ and Garnett, n 18 above. Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170 at [133]–[135]. See, for example, Aerospatiale Holdings Australia Pty Ltd v Elspan International Ltd (1992) 28 NSWLR 321.

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arbitral procedural law. This conclusion flowed from the fact that every arbitration with an Australian seat must have a procedural law and so, with the Model Law excluded, the uniform legislation applied by default. A series of recent developments, however, has altered this position. Most significantly, in July 2010 the old s 21 was repealed and replaced by a new provision which states that: 21 Model Law covers the field — if the Model Law applies to an arbitration the law of a State or Territory relating to arbitration does not apply to that arbitration.

The effect of this provision is to make the Model Law mandatory for all international commercial arbitrations with their seat in Australia, with no scope for exclusion.77 If parties, for example, choose a set of institutional rules in their agreement, the Model Law will continue to apply as arbitral procedural law. In 2015 the provision was further amended to include a new s 21(2), which provides that s 21(1) applies to ‘an arbitration arising from arbitral proceedings that commence on or after the commencement of this sub-section, whether the arbitration agreement giving rise to the arbitration was made before, on or after 6 July 2010’. The effect of s 21(2) is that s 21(1) is made retrospective, at least as far as arbitration proceedings that commenced on or after 18 August 2015 are concerned.

Enforcement of arbitral awards 6.26  The enforcement of arbitral awards in Australia is governed by two regimes: the New York Convention and the Model Law. In the case of foreign awards, that is, awards made by an arbitral panel outside Australia, s 20 of the International Arbitration Act provides that where both the convention and the Model Law could apply to enforcement, the provisions of the convention will prevail. The result is that the enforcement provisions of the Model Law (Arts 35 and 36) apply, in practice, only to awards made in Australia where the Model Law was the procedural law of the arbitration.

Foreign arbitral awards 6.27  The provisions of the New York Convention with respect to enforcement of foreign awards (Arts III, V and VI) were enacted in s 8 of the International Arbitration Act. This section provides that, for enforcement in Australia, the foreign award must have been made in a country which is a member state of the convention, or the party seeking enforcement must be either domiciled or ordinarily resident in Australia or another convention country. Under s 3(3) of the Act, ‘ordinary residence’ in the case of a corporation refers to its place of incorporation or principal place of business.

Formalities 6.28  Once it is established that the convention is available for enforcement of an award, the party seeking enforcement must comply with some procedural requirements. Section 8(2) and (3) of the International Arbitration Act provides that the award may be enforced in a court of a state or territory or in the Federal Court as if the award were a judgment or an 77.

Explanatory Memorandum to the International Arbitration Amendment Bill 2009, paras 112, 117.

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order of that court. The party seeking enforcement must produce the original award or a certified copy thereof (s 9(1)) and the original arbitration agreement or a certified copy. Any documents not in English must be translated: s 9(3). In addition, the award creditor must satisfy the enforcing court, at least to the level of an arguable case, that the award creditor and award debtor were both parties to the arbitration agreement.78 Once these matters are complied with, an Australian court will then enforce the award unless the defendant can establish a defence under Art V of the convention (implemented in s 8(5) and (7) of the Act).

Defences: General 6.29  An important preliminary issue in respect of the defences under s 8(5) and (7) is whether they are exhaustive or whether an Australian court has a residual discretion not to enforce an award even where none of the express defences are established. While courts in a few Australian decisions have suggested that such a discretion existed, the matter has now been settled in the 2010 amendments to the International Arbitration Act, where a new s  8(3A) provides that the court ‘may only refuse to enforce a foreign award in the circumstances mentioned in subsections (5) and (7)’. Such a provision makes it clear that an Australian court no longer has any residual discretion not to enforce a foreign award. This view is also consistent with the unanimous opinion of commentators who have also asserted that the New York Convention defences are to be construed narrowly and only available in exceptional cases so as to ensure that the pro-enforcement policy of the convention is not undermined.79 Further evidence of this pro-enforcement policy can be seen in two recent decisions where indemnity costs were awarded against parties whose defences to enforcement lacked any reasonable prospects of success.80 Incapacity of party 6.30  The first defence under s 8(5) is that a party to the arbitration agreement was under an incapacity at the time the agreement was made. This ground has been very rarely invoked in decisions under the convention. Invalidity of arbitration agreement 6.31  The second defence is that the arbitration agreement was invalid under the law expressed in the agreement to be applicable to it or failing an express choice under the law of the country where the award was made. Again, this ground has rarely been pleaded, most likely because questions of invalidity of the arbitration agreement would be raised at an earlier stage of the proceedings. The presumption that foreign law is the same as Australian law has no application to this defence. The party resisting enforcement must therefore affirmatively establish the content of the foreign law.81

78. 79. 80. 81.

IMC Aviation Solutions Pty Ltd v Altain Khuder LLC (2011) 282 ALR 717; [2011] VSCA 248 at [135]. See, for example, A van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation, Kluwer Law International, The Netherlands, 1981, p 265. Ye v Zeng (No 5) [2016] FCA 850; Sino Dragon Trading Ltd v Noble Resources International Pte Ltd (No 2) [2016] FCA 1169. Liaoning Zhongwang Group Co Ltd v Alfield Group Pty Ltd [2017] FCA 1223; see also 9.3.

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Lack of notice of proceedings/inability to present case 6.32  The next defence is that a party was not given proper notice of the appointment of the arbitrator or the arbitration proceedings, or was otherwise unable to present its case in the arbitration proceedings. The question of notice of the proceedings was raised unsuccessfully in LKT Industrial Berhad (Malaysia) v Chun82 and Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd.83 In Uganda Telecom, the court held that the requirement of notice will be satisfied in two situations: first, where actual notice has been given to the defendant as a matter of fact; and second, where constructive or deemed notice has occurred, such as where the plaintiff ’s notice has complied with the parties’ contractual terms, including any arbitration rules.84 The issue of a party’s inability to present its case has been invoked in many decisions but has been rarely successful; courts generally take the view that only serious breaches of due process by the tribunal would suffice.85 An example of a violation would be where a party was prevented from presenting its case by matters outside its control,86 such as where it was not informed of the case which it was called upon to meet.87 A glaring example of such conduct occurred in Hui v Esposito Holdings Pty Ltd.88 There, an arbitrator stated that the availability of defences and set-offs would not be addressed in a preliminary hearing but then delivered an award which determined such issues, without giving the party an opportunity to be heard. The key statement of principle comes from the Full Court of the Federal Court in TCL Air Conditioner (Zhongshan) Co Ltd v  Castel Electronics Pty Ltd89 who stated that a breach of natural justice by a tribunal will not be established unless there is demonstrated ‘real unfairness’ or ‘real practical injustice’90 in how the dispute resolution was conducted. ‘Real practical injustice’ means that there is ‘a realistic rather than a fanciful possibility that the award may not have been made or may have differed in a material respect favourable to a party said to have been denied the opportunity’.91 ‘Real unfairness’ will not arise, by contrast, if the loss of opportunity to present one’s case was ‘a result of the party’s own failures or strategic choices’.92 Also, where a defendant’s complaint amounts to no more than a ‘disguised attack on the factual findings or legal conclusions of an arbitrator dressed up as a complaint about natural justice’,93 it will fail.

82. 83. 84. 85. 86. 87.

88. 89. 90. 91. 92. 93.

[2004] NSWSC 820. (2011) 277 ALR 415; [2011] FCA 131. See also International Relief and Development Inc v Nadu [2014] FCA 887 and Ekran OAO v Magneco Metrel UK Ltd [2017] EWHC 2208 (Comm). Parsons & Whittemore Overseas Co Inc v Societe Generale de L’Industrie du Papier 508 F 2d 969 at 975 (2nd Cir, 1974). Minmetals Germany GmbH v Ferco Steel Ltd [1999] 1 All ER (Comm) 315 at 326. Kanoria v  Guinness [2006] 1 Lloyd’s Rep 701; William Hare UAE LLC v  Aircraft Support Industries Pty Ltd [2014] NSWSC 1403 (affirmed [2015] NSWCA 229) (where an award of damages was made by an arbitral tribunal for a claim that was not included in the plaintiff ’s statement of claim). See also Malicorp v Government of the Arab Republic of Egypt [2015] EWHC 361 (Comm). [2017] FCA 648. (2014) 311 ALR 387; [2014] FCAFC 83. At [112]. Hui v Esposito Holdings Pty Ltd [2017] FCA 648 at [184]. At [228]. Giedo van der Garde BV v Sauber Motorsport AG (2015) 317 ALR 786 at [8].

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Excess of jurisdiction 6.33  The next defence is that the award deals with a difference or contains a decision on a matter not falling within the scope of the arbitration agreement. Consistent with the approach taken to the other convention defences, national courts have rarely refused to enforce awards on the basis that the tribunal exceeded its jurisdiction, largely because of a concern not to intrude upon the merits of the dispute and to ‘second-guess’ the arbitrator.94 This defence also needs to be read in conjunction with s 8(6) of the International Arbitration Act, which states that where an award contains decisions on matters submitted to arbitration, and those decisions can be separated from decisions on matters not submitted, then the part within jurisdiction can be enforced. In two Australian decisions courts have applied the doctrine of severance to excise an invalid part of an award, leaving the remainder enforceable.95 Composition/procedure inconsistent with agreement 6.34  A further defence is that 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 place of arbitration.

Award not binding/set aside in seat 6.35  An award will also not be enforceable where it has not yet become binding on the parties to the arbitration agreement or has been set aside by a competent authority of the country in which, or under the law of which, the award was made. The second part of this paragraph needs to be read in conjunction with s 8(8) of the International Arbitration Act, which provides that if an application to set aside the award is made in the country where the award was originally made, the court in the country of enforcement (for present purposes, the Australian court) may, if it considers appropriate, adjourn the proceedings. Returning, however, to the first issue under this paragraph, when is an award not binding on the parties? In Resort Condominiums v Bolwell,96 the Supreme Court of Queensland held that for an award to be enforceable under the convention it must finally dispose of, or at least resolve, one of the disputes of the parties. If a tribunal’s decision can be varied or changed by the same body in a later decision, it is not final. Hence, purely interlocutory orders must be distinguished from interim or partial awards such as an initial award on liability pending a further and final award on quantum of damages. Note, however, that Art 17H of the Model Law provides that an ‘interim measure’ issued by an arbitral tribunal shall be enforced ‘upon application to the competent court irrespective of the country in which it was issued’. This provision would allow an Australian court to enforce certain interlocutory orders made by a foreign arbitral tribunal, provided that the requirements of the Model Law are satisfied. Another aspect of the binding nature of an arbitral award is whether an additional formal requirement in the country where the award was made must be complied with before the 94. 95.

96.

Parsons & Whittemore Overseas Co Inc v  Societe Generale de L’Industrie du Papier 508 F 2d 969 at 976–7 (2nd Cir, 1974); Sino Dragon Trading Ltd v Noble Resources International Pte Ltd [2016] FCA 1131 at [6], [117]. International Movie Group Inc v Palace Entertainment Corp Pty Ltd (1995) 128 FLR 458; aff ’d sub nom ACN 006 397 413 Pty Ltd v International Movie Group (Canada) Inc [1997] 2 VR 31; William Hare UAE LLC v Aircraft Support Industries Pty Ltd [2014] NSWSC 1403 at [136] (affirmed [2015] NSWCA 229). (1993) 118 ALR 655.

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award can be enforced; for example, that the award be ‘confirmed’ by a court at the seat of arbitration. Courts have generally held that an award is enforceable under the convention without the need to comply with such formalities.97

Stay of enforcement 6.36  As noted above, under s  8(8) an Australian court may adjourn enforcement proceedings pending a challenge to the award in the country where it was made. Such an order was granted in Toyo Engineering Corp v John Holland Pty Ltd98 for the following reasons. First, the challenge to the award in the place of arbitration had a reasonable chance of success. Second, adequate security for payment of the award had been provided by the defendant should the award survive the challenge. Third, the challenge application had been brought promptly by the defendant. And finally, the stay was of a relatively short duration with consequently little prejudice to the plaintiff. By contrast, in Hallen v Angledal,99 the New  South Wales  Supreme Court refused to adjourn enforcement proceedings because, first, there was insufficient evidence that an application to set aside the award had been made to a court in the seat of arbitration, and, second, there was no arguable case for a challenge in any event. The 2010 amendments to the International Arbitration Act include new provisions which allow the court in the country of enforcement to order proceedings that have been adjourned under s  8(8) to be resumed and costs to be awarded against the party seeking adjournment where, for example, the challenge application is not being pursued in good faith or with reasonable diligence.100

Arbitrability 6.37  The final two defences to enforcement under the convention are contained in s 8(7)(a) and (b) and, in contrast to the grounds in s 8(5), these defences are not dependent on any request coming from the party against whom the award is invoked, but must be established by the party seeking enforcement in every case.101 The first of these defences is that the subject matter of the difference between the parties is not capable of settlement by arbitration. Arbitrability was discussed at 6.5, but here a different choice of law rule is applied: it is the standards of the law of the country of enforcement which govern. Conceivably, therefore, it would be possible for an award to be considered arbitrable in the country where the award is made (for example, on a competition law matter) but not under the law of the country of enforcement. Increasing harmonisation of the principles of arbitrability should, however, make such divergent outcomes rarer.

Public policy 6.38  The final defence under the convention is that the award is contrary to public policy. In Australia, a decision of the Supreme Court of Queensland102 gave public policy a very Union Nationale des Cooperatives Agricoles de Cereales v Robert Caterall & Co Ltd [1959] 2 QB 44; Rosseel NV v Oriental Commercial & Shipping Co (UK) Ltd [1991] 2 Lloyd’s Rep 625. 98. [2000] VSC 553; see also ESCO Corp v Bradken Resources Pty Ltd (2011) 282 ALR 282; [2011] FCA 905. 99. [1999] NSWSC 552. 100. International Arbitration Act 1974 (Cth) s 8(9), (10). 101. Transpac Capital Pte Ltd v Buntoro [2008] NSWSC 671 at [44]. 102. Resort Condominiums International Inc v Bolwell (1993) 118 ALR 655. 97.

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broad definition, to the effect that it would be violated whenever an arbitral tribunal made orders which could not be made by an Australian court. This arguably erroneous approach has, however, not been followed in later cases. More recent Australian authority has taken the view that the public policy defence should be narrowly interpreted, and only available where enforcement of the award would constitute an offence to fundamental norms of fairness or justice.103 A breach of public policy would embrace conduct which would be considered opprobrious according to commonly-held standards such as fraud, corruption, human trafficking or a contract to conduct a criminal enterprise.104 An error of law in the award does not satisfy this standard,105 but an award that permitted double recovery would be contrary to public policy.106 Note also that the 2010 amendments to the International Arbitration Act introduced a new s  8(7A) which provides that ‘without limiting s  8(7) enforcement of a foreign award would be contrary to public policy if (a) the making of the award was induced or affected by fraud or corruption or (b) a breach of the rules of natural justice occurred in connection with the making of the award’. The requirements for showing a breach of natural justice were discussed at 6.32 above, namely that a defendant must show a ‘real unfairness’ or a ‘real practical injustice’ in the conduct of the arbitration or the making of the award.107 In particular, there is no breach of natural justice merely because a person who may be affected by the outcome of an arbitration is not involved in the proceeding. Such a conclusion flows from the inter partes nature of arbitration.108 The same approach applies to determining whether an award should not be enforced on the ground of bias.109

Enforcement of awards under the Model Law 6.39  In practice, enforcement under Arts 35 and 36 of the Model Law will only be required in the case of awards made in Australia which arose from an ‘international commercial arbitration’ under Art 1 and, in the case of agreements entered into before 6 July 2010, did not involve an exclusion of the Model Law under s 21 of the International Arbitration Act. Since, however, the Model Law provisions on enforcement are effectively identical to the convention, the discussion at 6.26–6.38 would equally apply here. In TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia,110 the High Court rejected an argument that the enforcement by an Australian court of an award under Art 35, in circumstances where it could not deny enforcement on the ground of error of law, was unconstitutional. 103. Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd (No 2) [2012] FCA 1214 at [33], [177]; Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd (2011) 277 ALR 415; [2011] FCA 131 at [132]; Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2) (2012) 201 FCR 535; [2012] FCA 276 at [96]. 104. Soleimany v Soleimany [1999] QB 785 (English CA). 105. Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd (2011) 277 ALR 415; [2011] FCA 131 at [133]. Nor would ‘mere procedural imperfections’: Colin Joss & Co Pty Ltd v  Cube Furniture Pty Ltd [2015] NSWSC 735 at [46]. 106. Indian Farmers Fertiliser Cooperative Ltd v Gutnick [2015] VSC 724 (affirmed [2016] VSCA 5). 107. TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 311 ALR 387; [2014] FCAFC 83. 108. Giedo van der Garde BV v Sauber Motorsport AG [2015] VSC 80 at [26] (affirmed (2015) 317 ALR 786). 109. ALYK (HK) Ltd v Caprock Commodities Trading Pty Ltd and China Construction Bank Corp [2015] NSWSC 1006 at [34]; Sino Dragon Trading Ltd v Noble Resources International Pte Ltd [2016] FCA 1131 at [191]. 110. (2013) 295 ALR 596; [2013] HCA 5.

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Investor–state arbitration 6.40  In 1989, the Commonwealth Parliament also enacted the Convention on the Settlement of Investment Disputes (ICSID Convention) into Australian law in the International Arbitration Act.111 The convention was concluded in 1965 and currently has 153 state parties.112 The objective of the ICSID Convention is to encourage private investment and promote confidence between states and private investors. To this end, the convention provides an arbitration mechanism for disputes between investors and host states which can be invoked pursuant to an arbitration clause in a contract or, more commonly, through the provisions of a bilateral investment treaty (BIT) between the host state and the nation state of the investor which confers on the investor a direct right to arbitrate against the host state. All contracting countries to the ICSID Convention are bound to recognise and enforce awards given under the convention, with only limited grounds available to apply for annulment of the award. Specifically, annulment may only be granted where: the arbitral tribunal has been improperly constituted; there has been a manifest excess of jurisdiction; there has been corruption by the tribunal; there has been a serious departure from a fundamental rule of procedure; or there has been a failure to state the reasons upon which the award is based.113 In Australia, the statutory mechanism for enforcement of an ICSID award is s  35 of the International Arbitration Act, which provides that an award may be enforced in a state or territory court or the Federal Court of Australia as if it were a judgment of the court. An ICSID award was recently enforced in Australia in Lahoud v The Democratic Republic of Congo.114

111. 112. 113. 114.

International Arbitration Act 1974 (Cth) s 32 and Sch 3. As of May 2018. ICSID Convention Art 52(1). [2017] FCA 92.

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PART 3 Choice of Law Method

Chapter 7 Choice of Law Method 1: The General Part Introduction 7.1  The choice of law question only arises if a court in the forum has jurisdiction to determine a case, and does not consider that it should decline to exercise that jurisdiction. That being so, the court must decide the case. However, it does not necessarily follow that, as the forum court has jurisdiction, it must determine the case in accordance with its own local law — the law of the forum. The contacts that the case could have with another place may, at times, require the forum court to decide the case in accordance with the law of another country or state. This is the issue which, in the strictest sense, the term ‘conflict of laws’ addresses. The court will only have to decide between the law of the forum and the law of another place if, when applied, they lead to different, conflicting outcomes. 7.2  As will be seen, the result in a choice of law case does not only depend on the choice of law rule relevant to the case. It is often just as important to identify the point at which, when dealing with a case, a court must decide whether there is even a need to invoke a choice of law rule, and how that rule is to be invoked. These are issues of method or process, rather than the content of the choice of law rule. For this reason, in this chapter and in Chapter 8 special attention is given to the method used when addressing a choice of law problem. However, it would be a mistake to think that the method outlined in these chapters is prescribed by law, or even habitually adopted by judges dealing with choice of law cases. Rather, the steps outlined follow from the usual structure of a multi-state case and of modern choice of law rules. In practice, the judge usually isolates the few issues that are central to resolving the dispute between the parties, and addresses them directly. But the complete mental process that the judge could undertake in coming to select those few issues is rarely ever articulated. It cannot be pretended that these steps represent a logical process. There is circularity involved in this method, especially at the point at which a conflict of laws is identified. Finally, the method fits some areas of the law better than it does others. Multi-state marriage and property cases are probably better adapted to this method than are, for example, cases involving issues of contract. Nevertheless, in all areas it might be necessary that the approach to the problem be adjusted to take important nuances of the case into account. Legal reasoning is rarely as tidy as this outline of choice of law method might initially suggest. 7.3  The key steps entailed in this method are: (1) the identification of a conflict of laws; (2) the classification of the subject matter; (3) the classification of substantive or procedural 191

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law; (4) the identification of the choice of law rule; and (5) the application of the law of the cause. This is sometimes called ‘The General Part’ of the choice of law method, as it leads the court to decide the law that should generally apply to the case. There are exceptions, arising either because of complications created by choice of law rules themselves or because of the nature of the law that would, in the general case, have to be applied.1 These are discussed in Chapter 8.

Choice of law and internal rules 7.4  This outline of the choice of law method also owes much to the influential work of Lederman on how, in a multi-state case, facts and laws are to be classified.2 The most important distinction in Lederman’s work is the difference between ‘indicative rules’ and ‘dispositive rules’ — more commonly referred to as ‘choice of law rules’ and ‘internal rules’. The choice of law (or indicative) rule does not ‘supply the answer’ to the question raised in a multi-state case. Its function is to ‘refer authoritatively to another body of rules of law which will answer this question’:3 that is, the choice of law rule is a jurisdiction-selecting rule. It therefore indicates whether the case is to be determined in accordance with, for example, the law of the forum or the law of another place. In its simplest form, a choice of law rule will therefore specify a juridical category (such as the formal validity of marriage or tort) and its associated connecting factor (such as the place of solemnisation or the place where the tort occurred) that effectively selects a legal system.4 The selected legal system is called the law of the cause (lex causae). However, the identification of the law of the cause does not in itself suggest to the court how the merits of the case are to be determined. It merely indicates which place’s law will provide the rules that ultimately determine that. The internal (or dispositive) rules provide the answer to the question raised by the case. They address the ultimate issue on the merits — such as whether a marriage is valid, whether the plaintiff can succeed, whether probate should be granted and so on.5 So, in the most general sense, the choice of law method requires the initial application of a choice of law rule that identifies the law of a particular place as the law of the cause, and the law of the cause then provides an internal rule that determines the outcome.

The identification of a conflict of laws 7.5  There is no need to invoke the choice of law method unless there is a true conflict of laws involved in the case before the court. This question itself can only be answered after considering two subordinate issues, namely: • which legal systems are possibly relevant to the case; and

1. 2. 3. 4.

5.

F K Juenger, Choice of Law and Multi-State Justice, Martinus Nijhoff, London, 1993, pp 43, 70–4. W R Lederman, ‘Classification in Private International Law’ (1951) 3 Canadian Bar Review 1. At 15. R D Leslie, ‘Building Blocks for Choice of Law Structures’ (1998) 19 Statute Law Review 202 at 202–6. Choice of law rules can be structured differently; for example, by stating a hierarchy of connecting factors or exceptions to the preferred connecting factor: Leslie at 206–8. Lederman, above n 2, at 15–16.

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7.10

• the likely result in the case on application of the internal rules of each of those possibly relevant legal systems.

Identifying the possibly relevant legal systems 7.6  The local court must first identify the legal systems that are possibly relevant to the case. Herein lies the circularity of this method. Local choice of law rules must be used to identify these possibly relevant legal systems. However, the very purpose of the exercise is to narrow the problem before the court so that it is in a better position to decide whether any choice of law rule needs to be invoked in the case and, if so, which one. In accordance with Lederman’s suggestion, the court must at this point identify which legal systems would be relevant on application of any choice of law rule currently obtaining in the forum.6 7.7  Obviously, if this step were undertaken too officiously the judge would need an extraordinary knowledge of choice of law rules. The authors of Nygh rightly point out that this process merely eliminates the need to consider laws that are ‘on any view irrelevant’.7 In practice, the legal systems that are at least within the range of consideration by the court in a multi-state case are evident to anyone with a general understanding of choice of law rules.

The internal rules of the possibly relevant systems 7.8  Once the possibly relevant legal systems have been identified, the internal laws of those legal systems are applied to the case. This indicates how, if the case were treated as a purely domestic proceeding in each of the possibly relevant places, the laws of those places would require the proceeding to be determined. At this stage, the choice of law rules of each relevant place should be ignored.

A conflict of laws A true conflict 7.9  The likely outcome in each of the possibly relevant territories allows the court in the forum to determine whether there is a true conflict of laws. If there is (in the sense that the laws of the relevant places require the case to be determined in different ways), then the court will have to proceed to other steps in the choice of law method as, if the case is to be decided one way or another, the court has to resolve the conflict. The choice of law rule is needed as a genuine tie-breaker.

A false conflict 7.10  Once the internal laws of the relevant places are applied, it may become evident that the case will be decided the same way, regardless of which law is applied. This is common, and is known generically as a ‘false conflict’ (although American theorists use 6. 7.

Lederman, above n 2, at 21. M Davies, A Bell and P Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, Sydney, 2014, p 344.

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the term in a more extended sense). A false conflict can arise, first of all, because the law of a foreign place is either not applied, or presumed to be the same as the law of the forum, unless it is proved by evidence to differ from the law of the forum.8 That being so, where this evidence is not available the forum court will have to apply the law of the forum — or will assume that the outcome required on application of the internal laws of the forum and the foreign place is the same and, so, that there is no conflict of laws. Second, there is a high degree of uniformity between the laws of different states and territories of Australia. The common law is assumed to be uniform throughout Australia, which means that choice of law issues should not arise in interstate cases where, in all relevant states or territories, the relevant internal rules are common law. That significantly reduces the potential for choice of law cases within Australia. However, the export of the common law of England and United  Kingdom statutory developments to much of the Commonwealth has also reduced the potential for conflicts of laws on a broader scale. For example, Gore v Octahim Wise Ltd9 was a multi-state bill of exchange case in the Supreme Court of Queensland. The case had contacts with Australia and Hong Kong, and further analysis would probably have revealed that the law of Hong Kong was the law of the cause. However, once Williams J determined that the Hong Kong Bills of Exchange Ordinance was substantially the same as the Bills of Exchange Act 1909 (Cth), he was able to decide the case in accordance with the latter.10 In this case, subsequent reference to a choice of law rule would have added nothing to the ultimate determination of the proceeding. 7.11  Gore represents good choice of law method, as it shows a judge prepared to avoid any reference to a choice of law rule unless that is essential to decide the case brought by the parties to the court.11 In comparison, in Koop v Bebb12 the High Court unnecessarily spent time discussing the choice of law rules for an interstate tort even though the laws of the relevant states — New South Wales and Victoria — were identical. Finally, it should be noted that, once applied, different internal laws can sometimes lead to the same outcome. If so, there is again no true conflict of laws and no need to proceed with the choice of law method. In all these false conflicts, the forum court will be able to reach a decision in the case without the need to use a choice of law rule.

The classification of the subject matter The subject matter 7.12  If there is a true conflict, the court can only determine the proceeding by reference to the choice of law method. At this point, the court must classify the subject matter that is addressed differently by the laws of the relevant jurisdictions. The process of classification (which is also called characterisation or qualification) requires the court to allocate the subject matter of the proceeding to one of the established choice of law classifications. 8. 9. 10. 11. 12.

See 9.2–9.4. [1995] 2 Qd R 242. At 243–4. See also Thorn-L & M Appliances Pty Ltd v Claudianos [1970] Qd R 141. (1951) 84 CLR 629.

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7.13

This therefore requires, first, that the court identify precisely the nature of the subject matter. While, when viewed closely, classification will always involve reference to the conflicting rules engaged in the dispute,13 it still remains necessary to determine which particular rules of law drawn to the court’s attention by the proceedings are to be classified.

What is classified? 7.13  More specifically, the question in classification is whether the court merely needs to classify the rules of law engaged in the cause of action brought by the plaintiff. In many cases, the court may only have to consider the juridical classification of the plaintiff ’s cause of action, but the more accurate position seems to be that it is the question on which the parties join issue that is the proper subject matter to be classified. In John Pfeiffer Pty Ltd v Rogerson,14 the majority of judges in the High Court (Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ) referred to the characterisation of ‘actions’. Too much should not be made of this. The reference is casual, and does not involve any consideration of the question of classification. In Pfeiffer also, the matter on which the parties had joined issue was the action itself. Macmillan Inc v Bishopsgate Investment Trust plc (No 3)15 is a clearer example of a case where classification was important, and the parties had not joined issue on the cause of action. A restitutionary claim for breach of trust was brought in England against the three defendant companies to recover shares held in companies incorporated in New York. The breach of trust would, under the usual English choice of law rule, be governed by the law of England, where the breach occurred. However, the defendant companies did not dispute the breach of trust, but claimed in defence that they had interests in the shares in priority to the plaintiff, as they were purchasers for value in good faith and without notice. A  question of priorities would, by the usual English choice of law rule, be governed by the law of the place where the shares were deemed to be located, which in Macmillan was New York. Accordingly, the case turned on whether it was the cause of action or the defence that was to be classified. The English Court of Appeal held unanimously that it was the ‘issue’ that was to be classified. As Staughton LJ put it: ‘I would regard it as plain that the rules of conflict of laws must be directed to the particular issue of law which is in dispute, rather than the cause of action which the plaintiff relies on’.16 In separate judgments, Auld and Aldous LJJ made the same point.17 As there was no question concerning the breach of trust in issue between the parties, and the case would turn on how the question of priorities would be decided, the court applied the law of New York. The Macmillan approach was endorsed by Callinan J in Sweedman v Transport Accident Commission,18 where his Honour referred to it as classification of ‘substance rather than form’, or ‘of the true, real, or substantial issues in dispute, of law and fact … and not the 13. 14. 15. 16. 17. 18.

C Forsyth, ‘Characterisation Revisited: An Essay in the Theory and Practice of English Conflict of Laws’ (1998) 114 Law Quarterly Review 141 at 148. (2000) 203 CLR 503; [2000] HCA 36 at [81]. [1996] 1 All ER 585. At 596. At 604, 614; Shipowners Mutual Protection and Indemnity Association (Luxembourg) v  Containerships Denizcilik Nakliyat VE Ticaret AS (The Yusuf Ceprioglu) [2016] EWCA Civ 386 at [15]. (2006) 226 CLR 362; [2006] HCA 8.

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nomenclature of the cause of action’.19 Similar approaches to this have been taken where defendants have raised contractual defences to claims in tort. The usual method adopted by English courts has been to classify the question as one of contract.20 7.14  It can be appropriate that the cause of action is classified. If the defendant denies the allegations made by the plaintiff in the action, or that the action establishes any liability on the defendant’s part,21 then the parties have joined issue on aspects of the cause of action. This would make it the appropriate object of classification, even in terms of the analysis undertaken in Macmillan Inc v Bishopsgate Investment Trust plc (No 3).22

Allocation 7.15  The subject matter is then allocated to the appropriate choice of law classification. This is a question of law.

Complications 7.16  The process of classification is not usually troublesome, but two complications do occasionally arise in the case law. First, there is a small and relatively fixed number of classifications that largely took their present form in the 19th century. A case could involve subject matter that has not been previously allocated to one of these classifications and that does not fit neatly into one of them. Second, the subject matter always involves a foreign law — whether that foreign law be in conflict with another or with the law of the forum. Is  a court in the forum to classify that foreign law in accordance with the principles of the law of the forum, or should it make some concession to the principles of the foreign law?

Classifications 7.17  The law does not generally provide efficient tools for dealing with novel cases, and this is no different for one that requires a conflict of laws to be classified. Through the 20th century, many of these novel cases arose in new areas of the law created by statute and, understandably, the courts were reluctant to allocate them to established common law classifications. This was especially so in areas of workplace compensation law. These claims have some similarities to both contract and tort, but the courts have been reluctant to classify them as either. Workplace compensation claims have tended to be treated as unique.23 On the other hand, statutory claims that can sometimes be brought directly against a motor vehicle insurer also have similarities to both contract and tort. Here, the

19. 20.

21. 22. 23.

At [116]–[117]. Canadian Pacific Railway Co v Parent [1917] AC 195; Walpole v Canadian Northern Railways Co [1923] AC 113 at 118; Zivnostienka Banka National Corp v Frankman [1950] AC 57; Sayers v International Drilling Co NV [1971] 3 All ER 163; see 18.47. Ryder v Hartford Insurance Co [1977] VR 257; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36. [1996] 1 All ER 585. Mynott v Barnard (1939) 62 CLR 68; Borg Warner (Aust) Ltd v Zupan [1982] VR 437.

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7.19

courts have been prepared to treat them as one or the other, with some inconsistency.24 There is no real method that explains the difference in approach. 7.18  Where the subject matter is more traditional, a more principled approach can be possible. This is sometimes called the ‘analytical approach’. For example, in a case often discussed in this context, Apt v  Apt,25 the subject matter was a marriage that took place in Argentina by proxy. At the time the marriage was solemnised, the wife was in England. However, English courts had never classified a question of marriage by proxy. There were two primary choice of law rules in England relating to marriage. Questions concerning the formal validity of marriage were determined by the law of the place where the marriage was celebrated (lex loci celebrationis) — in this case, Argentina, under whose internal law the marriage was valid. Questions concerning the essential validity of a marriage were determined by the law of the place where the parties were domiciled at the time of the marriage. For the wife, this was England, under whose internal law the marriage was invalid. So, the classification of the question of marriage by proxy was decisive to the outcome. Lord Merriman P concluded that ‘the celebration of marriage by proxy is a matter of the form of the ceremony or proceeding, and not an essential of the marriage’.26 In the Court of Appeal, Cohen LJ agreed that ‘the method of giving consent as distinct from the fact of consent is essentially a matter for the lex loci celebrationis, and does not raise a question of capacity’.27 The law of the cause was therefore Argentine, and the marriage was held in England to be valid. Accordingly, the method used by the courts in Apt was first to analyse the role and juridical purpose of the rule, and to take that into account when deciding how to classify it. The analytical approach is also relatively indifferent to the ultimate outcome, the purpose being to make a principled allocation of the subject matter to a choice of law classification without considering the consequences of that classification for the parties.28 7.19  The outcome of classifying the subject matter in one way or another is an important issue under the ‘functional approach’. Here, the court in the forum largely classifies the subject matter in the way that will, from the law of the forum’s perspective, secure the most desirable result in the case. In some cases, the courts’ preference for one classification over another has been based openly on the perceived demands of justice.29 In others, the motivation for the classification is not stated so openly. However, it is possible to interpret some cases involving statutory claims brought directly against a motor vehicle insurer as involving a more result-oriented classification. In these cases, the subject matter had sometimes been classified as tortious, meaning (under the then choice of law rule for torts) that a plaintiff could only recover if there was a right of recovery under the law of the forum

24.

25. 26. 27. 28. 29.

Compare Plozza v South Australian Insurance Co Ltd [1963] SASR 122; and Hodge v Club Motor Insurance Agency Pty Ltd (1974) 7 SASR 86 to Li Lian Tan v Durham and General Accident & Life Assurance Corp Ltd [1966] SASR 143; and Ryder v Hartford Insurance Co [1977] VR 257. [1947] P 127; [1948] P 83. Apt v Apt [1947] P 127 at 147. Apt v Apt [1948] P 83 at 88. Re Korvine’s Trust [1921] 1 Ch 343. For example, National Bank of Greece and Athens v Metliss [1958] AC 509; Adams v National Bank of Greece and Athens [1961] AC 255.

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and the law of the place where the tort occurred.30 Had this been the classification adopted in Hodge v Club Motor Insurance Agency Pty Ltd,31 the plaintiff would not have recovered. The forum was South Australia and the accident took place in that state. However, the motor vehicle was insured in Queensland and the right to sue the insurer directly only existed under the Motor Vehicle Insurance Act 1936 (Qld). Bray CJ held that the subject matter was properly classified as quasi-contractual, largely because the obligation on the insurer arose under statute and was ‘like one arising out of a contract’.32 The propriety of that classification has been hotly disputed.33 However, the effect in Hodge of treating the subject matter as quasi-contractual was that the choice of law rule identified the law of Queensland as the law of the cause, and the plaintiff was therefore able to recover damages.

The law of classification 7.20  The second complicating issue that can arise when classifying the subject matter of the proceeding is the law used to undertake that process. Is it to be the law of the forum, or are the juridical concepts of the law of the relevant foreign jurisdiction also to be considered? In  Oceanic Sun Line Special Shipping Co Inc v  Fay,34 Brennan J held that classification should be undertaken in accordance with the law of the forum, and certainly, this must be the primary reference for a court undertaking classification. It is undoubtedly the practice of the courts.35 For example, in Lee v Lau36 an English court had to classify a customary Chinese marriage that took place in Hong Kong. The union allowed the man to have tsipsis, or secondary wives, who had rights of succession and whose children would be regarded as legitimate. In Hong Kong, this customary union was regarded as a monogamous marriage. However, Cairns J rejected the use of the law of Hong Kong for classification of the marriage. He classified it in accordance with the law of England as potentially polygamous — an express application of the law of the forum. There are numerous other examples of classification by the law of the forum in the case law.37 7.21  The one exception to the primary classification of the subject matter in accordance with the law of the forum is the classification of property as immovable or movable. This is done in accordance with the law of the place where the property is situate.38 7.22  However, too strict an application of the law of the forum at the point of subject matter classification can thwart the whole choice of law process.39 For example, in Mohamed 30. 31. 32. 33. 34. 35. 36. 37. 38. 39.

For example, Li Lian Tan v  Durham and General Accident & Life Assurance Corp Ltd [1966] SASR 143; Ryder v Hartford Insurance Co [1977] VR 257. (1974) 7 SASR 86. Nominal Defendant v Bagots Executor & Trustee Co Ltd [1971] SASR 346 at 365–7. D Kingsford-Smith and G Burton, ‘Recent Problems with Characterization of Statutory Rights in the Conflict of Laws’ (1980) 9 Sydney Law Review 190. (1988) 165 CLR 197 at 225. Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [1996] 1 All ER 585 at 604, 614. [1967] P 14. For example, Leroux v Brown (1852) 12 CB 801; 138 ER 1119; Huntington v Attrill [1893] AC 150; Re Martin [1900] P 211; De Reneville v De Reneville [1948] P 100. See 20.3. Raiffeisen Zentralbank Osterreich AG v Five Star General Trading LLC [2001] 3 All ER 257 at 269.

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v Knott an English court had to determine the validity of a marriage in Nigeria between two Nigerians. The wife was aged 13 at the time, an age at which she could lawfully marry under the law of Nigeria but not under the law of England. Had the English court classified strictly in accordance with the law of the forum it could have found that this case did not concern a marriage, as a 13-year-old could not, by the law of England, enter into marriage. However, this would pre-empt the choice of law process so, to some extent, application of the law of the forum was suspended until a more general classification was completed. In Mohamed v Knott, the English court held that this was a question of the essential validity of a marriage, and as this was determined by the law of the place where the parties were domiciled, the marriage was valid. 40

7.23  If classification is not to be undertaken by too strict an application of the law of the forum, it is also evident that it should not be made purely by reference to some other law. Despagnet advocated classification by reference to the law of the cause. This is, though, premature. The whole purpose of the choice of law process (including classification) is the identification of the law of the cause and so, if that is already known at the time of classification, it would be pointless even to undertake classification in the first place. Rabel’s suggestion that classification should be undertaken by reference to concepts that are independent of any one legal tradition is more theoretically appealing. The difficulty is the character of private international law as municipal law, not international law (in the pure sense) that can be developed by state practice. Identifying and, in an international context, agreeing on these common international concepts is problematic, and simply does not happen in practice. Falconbridge built on this approach, claiming that courts basically classified by reference to the law of the forum.41 However, this is not classification by reference to the categories of the forum’s internal law. Instead, it must use, and in doing so, develop, the categories of the private international law of the forum, which is supposed to have more encompassing and cosmopolitan legal concepts, that are better able to manage a legitimate classification of foreign laws.42 This is closer to the actual practice of the courts. In general, the courts use the law of the forum but are prepared also to take the context of the foreign rule into account. A good example is In the Estate of Maldonado.43 There, the Spanish Civil Code provided that the State of Spain was to inherit property for which there was no heir. The applicable rule under the law of England was that of bona vacantia, by which the British Crown would take the property. If this were a question of succession to movable property, the law of the cause would be Spanish. However, if it were one of appropriation, English law would apply and the Crown would take the property. In  England, Barnard J accepted that the Spanish rule should be interpreted in its own context as one of succession. The property was therefore to pass to the State of Spain. This approach still begins with the law of the forum, as the private international law of 40. 41. 42.

43.

[1969] 1 QB 1. J D Falconbridge, Essays on the Conflict of Laws, 2nd ed, Law Book Co, Toronto, 1954, p 52. Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [1996] 1 All ER 585 at 604; Raiffeisen Zentralbank Osterreich AG v Five Star General Trading LLC [2001] 3 All ER 257 at 269; Secure Capital SA v Credit Suisse AG [2015] EWHC 388 (Comm) at [32] (aff ’d [2017] EWCA Civ 1486); Hamilton v Hamilton [2016] EWHC 1132 (Ch) at [161]–[162]. [1954] P 223.

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England had a class of succession to movable property and an associated choice of law rule that were both used to reach a determination of the case. However, the Spanish position that the rule of heirlessness was one of succession was also recognised and given effect by incorporation into the English classification.

The classification of substantive or procedural law General principles of procedural law The right–remedy distinction 7.24  An important consideration that can arise in choice of law cases is whether the subject matter to be classified involves substantive or procedural law.44 Classification of the issue is to be conducted primarily according to the principles of the law of the forum.45 Consequently, statutory provisions of the law of the cause that declare an issue to be substantive are not determinative of the question in proceedings in the forum.46 If the issue is one of substance, the appropriate choice of law rule is used to identify the law of the cause that may be the law of another place. However, if the subject matter in question is procedural, it is generally determined in accordance with the law of the forum.47 The  question therefore becomes what constitutes a procedural law, and it is one that common law courts were traditionally prepared to answer in the broadest terms. This tendency stemmed from the 19th century case of Huber v Steiner,48 where a distinction was made between law that affected the ‘rights and merits’ of a contract, which was regarded as substantive, and one that affected the enforcement of the right or the remedy only, which was procedural.49 Subsequently, the right–remedy distinction was used as a substitute for the question whether the issue was to be classified as substantive or procedural. The use of the right–remedy distinction was, as recent reforms have proved, unnecessary, and it would have been equally possible simply to attempt a classification of an issue as procedural. Further, it took this process of classification far from its moorings in procedural law and gave greater opportunity for forum courts to apply their own law. This was exemplified by two decisions of the High Court of Australia in the early 1990s: McKain v RW Miller & Co (South Australia) Pty Ltd50 and Stevens v Head.51 In McKain, an appeal from New South Wales, the majority (comprising Brennan, Dawson, Toohey and 44. 45. 46.

47.

48. 49. 50. 51.

See, generally, R Garnett, Substance and Procedure in Private International Law, Oxford University Press, Oxford, 2012. Hamilton v Merck & Co Inc (2006) 66 NSWLR 48; [2006] NSWCA 55. Hamilton v  Merck & Co Inc (2006) 66 NSWLR 48; [2006] NSWCA 55 at [44]; Martin v  Kelly (1995) 22 MVR 115 at 124; Nalpantidis v Stark (1996) 65 SASR 454 at 459; Alvear v Chetwynd Park Pty Ltd [2014] VSC 214 at [20]. Exceptional situations include the taking of evidence or service of process in a foreign country where the law of that place may also be relevant: see Garnett, above n 44, Chs 4 and 8. Also, the question of finality of a foreign judgment, for the purposes of the doctrines of res judicata and issue estoppel, is governed by the law of the country in which the judgment was rendered: see Garnett, above n 44, pp 212–15. (1835) 2 Bing NC 202; 132 ER 80. At 88. (1991) 174 CLR 1. (1993) 176 CLR 433.

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McHugh JJ) held that the South Australia limitation period was procedural, and thus the New South Wales  limitation period as the law of the forum applied to the proceeding. The  majority used the traditional right–remedy distinction, holding that a statute of limitation that time-barred the bringing of a proceeding was remedial.52 In Stevens, an appeal from Queensland, the question was whether a cap on the recovery of damages imposed by the law of New South Wales  was substantive or procedural. There was no such limitation on the common law damages available in Queensland. The same majority (Brennan, Dawson, Toohey and McHugh JJ) held that the New South Wales statute created a procedural law and, therefore, in Stevens, damages were to be assessed at the higher amount available at common law in Queensland. It related only to the manner in which damages were to be quantified. This was considered to be different to the head of damage in respect of which damages were to be calculated, and so procedural.53 7.25  In both McKain and Stevens, the classification of procedural law was conducted analytically. The question was whether, from the forum’s perspective, the interstate law extinguished rights, or merely qualified or withheld a remedy. If, regardless of the effect it had on the outcome of the case for the parties, it merely qualified or withheld remedies, it was procedural. The analysis was not entirely consistent, as the assumption is that the forum court should be entitled to use its own procedures — but in practice it was the interstate or foreign laws that were the only object of classification. Further, issues were decided ad hoc, largely by analogy to related issues and without reference to an authoritative definition of procedure that could confine the limits of the concept. There had long been proposals to approach the classification of issues as substantive or procedural by reference to the purpose or outcome achieved by the rules. Cook had noted the blurred lines between substance and procedure that made an analytical approach to classification problematic, and that it was preferable to classify ‘so as best to carry out our purpose’.54 This favoured a substantive classification — the determination of an issue as procedural only being necessary to prevent the court ‘unduly hindering or inconveniencing itself ’.55

Mode or conduct of court proceedings 7.26  In his dissent in McKain, Mason CJ believed that the defining criterion of a procedural law was that it was directed towards the regulation of court proceedings, and the Chief  Justice did not consider the application of a limitation period to have that quality.56 Indeed, he held that there was no difference in the effect of a limitation period which extinguished a right and one which barred the bringing of a proceeding.57 The operation of both was central to the rights and liabilities of the parties, and directly affected the outcome of the proceeding. Deane and Gaudron JJ adopted the same narrow definition of procedure, but for constitutional reasons.58 In Stevens, the same three judges 52. 53. 54. 55. 56. 57. 58.

(1991) 174 CLR 1 at 44. (1993) 176 CLR 433 at 459. W Cook, ‘Substance and Procedure in the Conflict of Laws’ (1933) 42 Yale Law Journal 333 at 344. Cook, above n 54, at 344. (1991) 174 CLR 1 at 26–7. At 21. At 52.

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continued to take this view of procedural law.59 The approach of Mason CJ in McKain, with a corresponding rejection of the right–remedy distinction, was finally adopted in John Pfeiffer Pty Ltd v Rogerson.60 7.27  Pfeiffer was an appeal from the Australian Capital Territory that involved a workplace accident in New South Wales. Liability was not an issue. However, a New South Wales statute placed a cap on the damages that could be recovered for a workplace injury. The question was therefore whether, from the territory court’s perspective, the New South Wales cap on damages was procedural, and so whether it would allow the territory court to assess damages in accordance with the territory law that placed no limitation on the common law damages available. This question was almost identical to that raised in Stevens, so the territory courts classified the New South Wales  statute as remedial and procedural, and awarded full common law damages. This decision was reversed on appeal to the High Court. 7.28  In Pfeiffer, the joint majority (Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ) noted that the case law on substance and procedure showed that the question was addressed ad hoc: there was no ‘unifying principle’.61 This had also been a theme of the dissenting judgments in McKain and Stevens,62 which provided their Honours with an a priori definition of procedural laws as those ‘which are directed to governing or regulating the mode or conduct of court proceedings’.63 Callinan J developed this principle to conclude that procedure comprises only ‘laws and rules relating to procedures such as the initiation, preparation and prosecution of the case, the recovery processes following any judgment and the rules of evidence’.64 Any other laws were substantive.65 Kirby J adopted the purposive definition given by the Canadian Supreme Court in Tolofson v  Jensen66 that procedure amounted to the rules that ‘will make the machinery of the forum court run smoothly as distinguished from those determinative of the rights of both parties’.67 In practice, there is little to differentiate these three definitions of procedure in Pfeiffer. Had the High Court’s discussion in Pfeiffer been limited to providing a definition of ‘procedure’ then a relatively clear test would have been provided for future decisions. The court, however, also proceeded to define the term ‘substantive’ as ‘matters that affect the existence, extent and enforceability of the rights and duties of the parties to an action’.68 Such a test, in effect, makes a matter substantive depending on whether it influences the outcome in litigation. Outcome determination is a useful criterion but does have the potential to conflict with the mode or conduct of court proceedings test as an issue could, in some cases, satisfy both principles, meaning that it could be both procedural 59. 60. 61. 62. 63. 64. 65. 66. 67. 68.

(1993) 176 CLR 433 at 451, 469. (2000) 203 CLR 503; [2000] HCA 36. At [97]. (1991) 174 CLR 1 at 22–7, 53, 62; (1993) 176 CLR 433 at 445, 469–70. (2000) 203 CLR 503; [2000] HCA 36 at [99]. At [192]. At [192]. [1994] 3 SCR 1022 at 1071–2. (2000) 203 CLR 503; [2000] HCA 36 at [133]. At [99].

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and substantive. It would therefore be desirable in future decisions if Australian courts gave predominant weight to the mode or conduct of proceedings test in making the classification, and only used outcome determination as a secondary principle where the connection between an issue and the conduct of proceedings is slight.69

Cross-vested jurisdiction 7.29  There is one case where, even though the subject matter is classified as procedural, a court need not apply the law of the forum. This arises under the Cross-vesting Acts.70 Where  it appears to a court that it will, or will be likely to, be exercising cross-vested jurisdiction, it can apply any rules of procedure (or evidence) that it considers appropriate, so long as they are rules applied in any superior court in Australia or an external territory.71 Thus the classification of subject matter as procedural in the course of exercising cross-vested jurisdiction does not limit the court to the application of the law of the forum. It  could select a procedural law from elsewhere in Australia that is, given the nature of the proceeding, better adapted to the case. This, though, is unlikely. So far, the courts have been reluctant to rely on the discretion given by this provision to adopt procedural laws that differ from those that would normally be applicable in the forum.72 Normally, it would be expected that a court receiving a transfer of proceedings under the Cross-vesting Acts will apply its own procedural laws.73 Very recently, however, the Western Australian Supreme Court applied the procedural rules of New South Wales to a matter that had been transferred to it from the Supreme Court of New South Wales.74 The relevant New South Wales rule75 (that did not exist in Western Australia) allowed a claimant to add a cause of action that had arisen after the commencement of proceedings. The court felt that it was ‘overwhelmingly in the interests of justice’76 that the New South Wales rule be applied, since it had been assumed throughout the case management of the proceeding that the plaintiff could raise all possible claims, consistent with the New South Wales position.

Particular issues 7.30  Consideration is now given to the treatment of several issues and whether they can be regarded as substantive or procedural according to the test enunciated in John Pfeiffer Pty Ltd v Rogerson. 69. 70. 71.

72. 73. 74. 75. 76.

For a supportive authority, see Julia Farr Services Inc v Hayes (2003) 25 NSWCCR 138; [2003] NSWCA 37. See 2.28–2.36. See Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 11(1)(c); Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) s 11(1)(c); Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 11(1)(c); Jurisdiction of Courts (Cross-vesting) Act (NT) s 11(1)(c); Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld) s 11(1)(c); Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) s 11(1)(c); Jurisdiction of Courts (Cross-vesting) Act 1987 (Tas) s  11(1)(c); Jurisdiction of Courts (Cross-vesting) Act  1987 (Vic) s  11(1)(c); Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) s 11(1)(c). Reidy v  Trustee of Christian Brothers (1994) 12 WAR 583 at 587–8; but cf Marriage of Wilton and Jarvis (1996) 133 FLR 355. BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [227]. Mineralogy Pty Ltd v Sino Iron (No 6) [2017] WASC 340. Civil Procedure Act 2005 (NSW) s 64(3). Mineralogy Pty Ltd v Sino Iron (No 6) [2017] WASC 340 at [139].

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Evidence 7.31  The rules as to the evidence which can be tendered to a court in the forum are pre-eminently a matter for the law of the forum.77 This is likely still to be the case, and in John Pfeiffer Pty Ltd v  Rogerson78 Callinan J explicitly listed the rules of evidence as matters of procedural law. It is only in the most exceptional cases that the courts will not classify questions as to evidence as procedural, as to allow too much deviation from this classification may alter the conduct of the trial. In Alvear v  Chetwynd Park Pty Ltd,79 a provision that precluded a party from having evidence admitted in a proceeding if the evidence had not been disclosed by the party in a pre-filing statement or defence was held to be procedural since it related to the admissibility of evidence. Similarly, the question of what expert evidence a court may order is clearly procedural.80 An extreme example of where matters concerning evidence were treated as procedural is Korner v Witzkowitzer.81 There, a contract was governed by the law of Czechoslovakia. However, in proceedings in England, no evidence as to an oral variation of this contract could be admitted, as the English parol evidence rule prohibited the admission of oral evidence to that effect. Yet the court in Korner also held that had the issue been one of admission of evidence to interpret a contract as opposed to vary it, a substantive classification would have been adopted. The  distinction, however, between variation and interpretation of a contract is dubious given the clear potential to affect outcome in both cases and the limited nexus with court proceedings. A substantive classification of parol evidence is therefore to be preferred.82 7.32  The rules of evidence by which the content of foreign law is proved are discussed in Chapter 9.

Presumptions and burden of proof 7.33  There have been doubts as to the appropriate classification of presumptions. In the common law tradition, presumptions serve a similar role to evidence in that they establish a factual position before the court on which it can make its decision. In Re Cohn,83 Uthwatt J treated a presumption (as to the order in which people died) as substantive, and so determined by the law of the cause.84 This would seem to be more compatible with the principles of John Pfeiffer Pty Ltd v Rogerson.85 While cases on the related question of the burden of proof have generally adopted a procedural characterisation,86 commentators have objected to this conclusion on the basis that the allocation of the burden of proof is often likely to determine the outcome of litigation.87 Again, Pfeiffer may require some rethinking of this classification. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87.

Bain v Whitehaven Railway Co (1850) 3 HLC 1 at 19. (2000) 203 CLR 503 at 574; [2000] HCA 36. [2014] VSC 214 at [29]. Wall v Mutuelle de Poitiers Assurances [2014] EWCA Civ 138. [1950] 2 KB 128. Garnett, above n 44, p 197, citing Filter Solutions Ltd v Donaldson Australia Pty Ltd [2006] NZHC 762. [1945] Ch 5. De Thoren v Attorney-General (1876) 1 App Cas 686; Mahadervan v Mahadervan [1964] P 233. (2000) 203 CLR 503; [2000] HCA 36. The Roberta (1937) 58 Lloyd’s Rep 159; Re Fuld’s Estate (No 3) [1968] P 675. See, for example, A Briggs, The Conflict of Laws, 2nd ed, Clarendon Press, Oxford, 2008, p 234; Garnett, above n 44, pp 198–9.

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7.34

Privilege 7.34  The rules of privilege, in particular legal professional privilege, have traditionally been regarded as forming part of the law of evidence (and so are procedural), as they relate to whether certain material is admissible in litigation.88 Yet privilege can also be seen as having a significant impact on the rights and duties of the parties, by removing key items of evidence from a proceeding. In Kennedy v Wallace,89 the Full Court of the Federal Court, rather paradoxically, referred to privilege as ‘a substantive right’ while at the same time assuming that it was procedural for private international law purposes. The  court softened this conclusion slightly by holding that, for the purposes of the Australian law of privilege, a foreign lawyer is to be treated no differently to an Australian lawyer.90 An arguably more nuanced view, while still applying the law of the forum, was expressed by Brereton J of the New South Wales Supreme Court in Michael Wilson and Partners Ltd v Nicholls.91 The judge there said that matters of discovery and privilege are governed by the law of the forum because they are both ‘part of the local procedure’. Yet, where foreign law obligations of confidentiality are involved, ‘the [Australian] court may limit or even dispense with discovery as a matter of discretion’.92 In this way, the court could be said to apply an ‘enlightened’ version of forum law93 which takes account of foreign interests. Most recently, in Stewart v Australian Crime Commission,94 the Full Court of the Federal Court had to consider whether foreign lawyers could claim legal professional privilege under foreign law to prevent disclosure of documents required under s 29 of the Australian Crime Commission Act 2002 (Cth). A majority of the court held that s 29, which preserves the right to legal professional privilege as a defence to disclosure, included only the Australian law of privilege. Such privilege may extend to local or foreign lawyers, whether the law as to which they were advising was local or foreign and whether the communication occurs in Australia or elsewhere.95 Consequently, as no ‘choice of law question arose’ in the case, the classification of privilege as substantive or procedural did not require determination. It is therefore suggested that the matter remains open in Australian law96 and that an

88. 89. 90. 91. 92. 93. 94. 95. 96.

Davies, Bell and Brereton, above n 7, p 391. (2004) 142 FCR 185; [2004] FCAFC 337 at [199]. At [198]–[204]. (2008) 74 NSWLR 218; [2008] NSWSC 1230. At [11]. Garnett, above n 44, p 236. (2012) 206 FCR 347; [2012] FCAFC 151. At [77] (Jagot and Bromberg JJ). Compare the minority view of Besanko J in Stewart v Australian Crime Commission (2012) 206 FCR 347; [2012] FCAFC 151 at [53], which would have applied the law of the forum to the question of privilege, assuming a choice of law question arose, although, significantly, not because the matter was procedural. Forum law should instead apply, because ‘there are important connecting factors with the forum, namely the production of documents or a request for their production and a claim or assertion of privilege’. See also Re the RBS Rights Issue Litigation [2016] EWHC 3161 (Ch) at [171] where forum law was again applied, although on the basis that privilege forms part of local public policy, in that it involves the striking of a balance between disclosure and protection of information. In Lambert Leasing Inc v QBE Insurance Ltd [2016] NSWCA 254 at [66] it was acknowledged that privilege raises ‘difficult choice of law issues’.

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appropriate choice of law rule for legal professional privilege would be the law of the country in which the lawyer is admitted to practice.97

Statutes of frauds 7.35  Statutes of frauds provide that certain contracts are unenforceable unless they are reduced to writing. Inevitably, these include contracts for the transfer or creation of an interest in land. In Leroux v Brown,98 the contract was one of employment, which would have been enforceable in France even if not in writing. In England, it was subject to the requirement for writing in the statute of frauds. Jervis CJ held that the statute did not affect the existence of the contract, merely its enforceability. For that reason, it was procedural and would be applied in an English court. The opposite approach was, however, taken by the Court of Appeal of Western Australia in Tipperary Developments Pty Ltd v The State of Western Australia.99 Given the clear connection between this issue and the outcome of litigation, and the comparatively slender link to the conduct of court proceedings, a substantive classification is preferable.

Parties to litigation 7.36  The question of whether the claimant or defendant to litigation has legal personality and the capacity to sue or be sued is governed by the law of the entity’s domicile or country of formation.100 A distinct issue is whether an entity, despite having legal personality under its constituent law, can nevertheless be made a party to litigation in the forum. This matter is procedural and governed by the law of the forum.101 The question of whether the claimant or defendant is a proper party to the litigation is substantive and governed by the law of the cause. An example is the right of a claimant to directly sue the tortfeasor’s liability insurer.102 In the case of defendants, a rule that requires that one person (for example, a principal debtor) be sued before another (such as a guarantor) is closely connected with the rights and liabilities of the parties and so is substantive.103 A claimant’s right to pursue a statutory derivative action against a company is also best classified as substantive. This issue is considered more fully below.104 7.37  The right of a person to obtain contribution or indemnity from a tortfeasor is also regarded as substantive and governed by the law of the cause of action.105 Recent civil liability legislation in Australia has introduced proportionate liability for claims for economic loss or property damage. The basis of such liability is that a tortfeasor cannot be held liable for more than his or her proportionate share of responsibility for the harm 97. 98. 99. 100. 101. 102. 103. 104. 105.

J McComish, ‘Foreign Legal Professional Privilege: A New Problem for Australian Private International Law’ (2006) 28 Sydney Law Review 297; Garnett, above n 44, p 242. (1852) 12 CB 801; 138 ER 1119. (2009) 38 WAR 488; [2009] WASCA 126 at [81] (McLure JA, with whom Wheeler and Newnes JJA agreed). Chaff and Hay Acquisition Committee v JA Hemphill & Sons Pty Ltd (1947) 74 CLR 375. Bumper Development Corp v Commissioner of Metropolis [1991] 4 All ER 638. Plozza v South Australian Insurance Co [1963] SASR 122. Subbotovsky v Waung (1968) 72 SR (NSW) 242; cf Johnson Matthey & Wallace Ltd v Ahmad Alloush (1984) 135 NLJ 1012 (Eng CA). See 23.21. Sweedman v Transport Accident Commission (2006) 226 CLR 362; [2006] HCA 8.

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incurred by the claimant, having regard to the relative responsibilities of others for the damage.106 Since the focus of this inquiry is on the ascertainment of the rights and liabilities of the parties, a substantive classification is warranted.107

Remedies 7.38  The remedies that a court may award to a plaintiff who establishes in the forum that they have rights under the law of the cause have generally been determined in accordance with the law of the forum. As a result, the kind of remedy available has usually been regarded as a matter of procedural law. Therefore, even if, for example, an injunction was not available under the law of the cause to enforce rights it had established, the court in the forum could still grant an injunction if that is a remedy available in the forum in analogous circumstances.108 Equally, if the forum court does not have the power to award a remedy available under the law of the cause, that remedy cannot be granted.109 It is unclear whether this position has changed with the adoption of the new definition of procedure in John Pfeiffer Pty Ltd v Rogerson although the High Court did note that a claimant cannot obtain remedies of a kind which the forum cannot provide.110 However, remedies are not peculiarly tied to the mode or conduct of court proceedings, and in many cases are closely related to the kind of claim involved in the proceedings. A possible way of balancing these considerations would be to require that the particular remedy exist under both the law of the forum and the law of the cause of action but then apply the law of the cause to determine whether such relief may be granted on the facts of the case.111

Damages 7.39 Before Pfeiffer,112 questions concerning the recovery of damages were thought to be either substantive or procedural. In general, heads of damage available for different kinds of liability were regarded as substantive,113 whereas questions of quantification were increasingly treated as procedural. That trend was exemplified by the treatment of a ceiling on the recovery of damages in Stevens v Head.114 Although there was no precedent to support the conclusion, the High Court classified the question as one of procedure. Pfeiffer overruled that conclusion.115 As Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ noted: ‘… all questions about the kind of damage, or amount of damages that may be recovered, would likewise be treated as substantive issues.’116 The specific conclusion about damages was a natural consequence of the conclusion that procedural matters 106. 107. 108. 109. 110. 111. 112. 113. 114. 115. 116.

See, for example, Civil Liability Act 2002 (NSW) Pt 4. Garnett, above n 44, pp 127–8. Baschet v London Illustrated Standard Co [1900] 1 Ch 73. Phrantzes v Argenti [1960] 2 QB 19. (2000) 203 CLR 503; [2000] HCA 36 at [99]. Garnett, above n 44, pp 296–7; OJSC TNK-BP Holding v  Lazurenko [2012] EWHC 2781 (Ch) at [11]; Shanghai Electric Group Pty Ltd v PT Merak Energi Indonesia [2010] SGHC 2. (2000) 203 CLR 503; [2000] HCA 36. Boys v Chaplin [1971] AC 356 at 379; Breavington v Godleman (1988) 169 CLR 41. On remoteness of damage, see D’Almeida Araujo Lda v Sir Frederick Baker & Co Ltd [1953] 2 QB 329. (1993) 176 CLR 433. See 7.28. (2000) 203 CLR 503; [2000] HCA 36 at [100].

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concerned the mode or conduct of court proceedings. The quantification of damages is a question that clearly concerns the extent of liability, and so is to be determined by the usual law of the cause. 7.40  The High Court has backtracked a small way from the conclusion in Pfeiffer that all questions of damage are matters of substance. In the foreign tort case of Regie Nationale des Usines Renault SA v Zhang,117 Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ noted their conclusion in Pfeiffer about the classification of ‘… all questions about the kinds of damage, or amount of damages that may be recovered’, and stated: ‘We would reserve for further consideration, as the occasion arises, whether that latter proposition should be applied in cases of foreign tort.’118 That does not follow from the definition of procedure given in Pfeiffer and if, in a foreign tort case, a court were ever to treat a question of quantification as procedural, that would create a genuine exception to the basic principles of substance-procedure classification. Further, it would be an exception crafted only for parochial purposes, and inconsistent with the basis policy of deterring forum shopping in these cases.119 Despite the comment in Renault, in a more recent foreign tort case to have come before the High Court — the Western Australian case of Neilson v Overseas Projects Corp of Victoria Ltd120 — no opportunity was taken to treat the damages available under the foreign Chinese law as procedural. The law of Western Australia was, however, still applied to the question of the assessment of damages on application of the doctrine of renvoi.121 Lower courts in interstate tort cases have consistently classified all questions of damages as substantive122 and in one foreign tort case a court suggested that questions of quantum of damages would likely be governed by the law of the cause of action.123 It is clear, however, that a statutory scheme, in which a claimant’s right to sue in respect of any or all heads of damages is extinguished, is part of the substantive law of the cause of action.124 7.41  Until recently, the English courts maintained the distinction between heads of damage, classified as substantive, and the quantification of damages as matters of procedure.125 117. (2002) 210 CLR 491; [2002] HCA 10. 118. At [76]. 119. Harding v Wealands [2005] 1 All ER 415 at 444 (Eng CA). Note that while this decision was reversed by the House of Lords (see Harding v Wealands [2007] 2 AC 1), the statement arguably remains good law in Australia. 120. (2005) 223 CLR 331; [2005] HCA 54. 121. See 8.21–8.27. 122. CSR Ltd v Thompson (2003) 59 NSWLR 77 at 79–80; Hobson v Queanbeyan Australian Football Club [2003] ACTSC 8 at [22]; Routley v  Bridgestone Australia Ltd [2004] NSWDDT 4 at [20]–[21]; Hoey v  Martin’s Stock Haulage (Scone) Pty Ltd [2003] ACTSC 41 at [44]; Zardo v  Ivancic (2003) 149 ACTR 1 at 2–4; Randwick Labor Club Ltd v Amalgamated Television Services Pty Ltd [2000] NSWSC 906 at [190]; Jackson v TCN Channel 9 Pty Ltd [2002] NSWSC 1229 at [91]; Fuller v K & J Trucks Coffs Harbour Pty Ltd (2006) 67 NSWLR 516 at 525; Lewincamp v ACP Magazines Ltd [2008] ACTSC 69 at [134]; Munsie v Munsie [2012] NSWSC 479 at [16]. 123. McGregor v Potts (2005) 68 NSWLR 109 at [54]. 124. Amaca Pty Ltd v Frost (2006) 67 NSWLR 635; Allen v Depuy International Ltd [2015] EWHC 926 (QB); Wickham Freight Lines Ltd v Ferguson (2013) 83 NSWLR 162. 125. Edmunds v Simmonds [2001] 1 WLR 1003 at 1011; Hulse v Chambers [2002] 1 All ER (Comm) 812; and Alseran v Ministry of Defence [2017] EWHC 3289 (QB) at [873]–[874]. In Canada a similar approach is taken, see Wong v Wei (1999) 65 BCLR (3d) 222; Somers v Fournier (2002) 214 DLR (4th) 611 at [51]; Craig v Allstate Insurance Co of Canada (2002) 214 DLR (4th) 103 at [22]; and Das v George Weston Ltd 2017 ONSC 4129 at [214].

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This approach to the assessment of damages was given the English Court of Appeal’s imprimatur in Roerig v Valiant Trawlers Ltd,126 and in Harding v Wealands127 the House of Lords held that restrictions on the recovery of damages were procedural both at common law and under s  14(3)(b) of the Private International Law (Miscellaneous Provisions) Act 1995 (UK). Consequently, provisions of the Motor Accidents Compensation Act 1999 (NSW), which placed a few limitations on the usual assessment of damages at common law, were held not to be applicable in an English court. However, the implementation in the United Kingdom in 2009 of the Rome II Regulation (Regulation EC 864/2007 of the European Parliament and Council on the Law Applicable to Non-Contractual Obligations) has had the effect of reversing the decision in Harding v  Wealands. Article 15(c) of the Regulation provides that the nature and assessment of damage is a matter governed by the law applicable to the non-contractual obligation.128 In essence, the Australian position in Pfeiffer has therefore been adopted in England. 7.42  Some matters relating to damages, however, remain uncertain under both Australian common law and the Rome II Regulation. In the English Court of Appeal decision in Harding v Wealands,129 Arden LJ held that matters of procedure included questions such as: (1) the opportunity to pay damages by instalments; (2) the ability to claim damages for the same injuries in an action subsequent to the present proceedings; and (3) the conversion of the sum awarded into a foreign currency.130 Some doubt in Australian law might be cast over the classification of the first two by the judgments of a majority of the High Court in BHP Billiton Ltd v Schultz.131 There, Callinan J thought that a tribunal’s ability to make a conclusive, provisional award of damages, although still able to make a subsequent and distinct award of final damages,132 was a matter of substance. Important to this classification was that the power to make a conclusive interim award deprived the defendant of a defence that damages had already been assessed and awarded.133 Gummow, Kirby and Hayne JJ separately agreed with this classification.134 Gleeson CJ and McHugh and Heydon JJ did not think that it was necessary to classify the issue.135 7.43  The question of interest on damages is also not entirely resolved. The right to pre-judgment interest, that is, interest by way of damages dating from the accrual of the cause of action, is clearly substantive and governed by the law of the cause.136 The right to post-judgment interest, that is, interest payable on a judgment debt, is less clear. According to one view, such interest is merely another form of damages and so is substantive, whereas

126. 127. 128. 129. 130. 131. 132. 133. 134. 135. 136.

[2002] 1 WLR 2304. [2007] 2 AC 1. Homawoo v GMF Assurance SA [2010] EWHC 1941 (QB) at [7]. [2005] 1 All ER 415 (reversed on other grounds: [2007] 2 AC 1). At 436–7. (2004) 221 CLR 400; [2004] HCA 61. Under Dust Diseases Tribunal Act 1989 (NSW) s 11A. (2004) 221 CLR 400; [2004] HCA 61 at [226]. At [79], [147], [177]. At [26]. Labuda v Langford [2001] ACTSC 126 at [6]; Somers v Fournier (2002) 214 DLR (4th) 611 at [31].

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an alternative analysis considers such interest as a means by which the court enforces its judgments137 and so is procedural. 7.44  The question of whether benefits already received by a claimant may be deducted from an award of damages is best regarded as substantive and governed by the law of the cause.138 7.45  By contrast, the issue of costs in proceedings is procedural as it concerns court administration.139

Set off 7.46  The doctrine of set-off involves a defendant seeking to deduct a debt owed to it by the claimant from an amount owed by the defendant to the claimant with the debts arising from connected claims. While the older English decisions appear to support a procedural classification of the right to set-off,140 more recently courts have suggested that a substantive view may be taken where the effect of the defendant’s claim to set-off is to discharge or extinguish its liability to the claimant on the original claim.141 In such a situation, the right to set-off would be governed by the law of the claimant’s cause of action (the claim against which the right to set-off is asserted).142

Limitation periods 7.47  Limitation periods provide either that a proceeding cannot be commenced within a stated period from the time it arose, or that a civil right or liability is extinguished within a stated period from the time it arose. In both cases, the right cannot be enforced unless the defendant does not rely on the limitation period as a defence. In McKain v RW Miller & Co (South Australia) Pty Ltd,143 the High Court maintained the traditional difference between limitation periods that apply to the initiation of proceedings, and those that extinguish civil rights and liabilities. The former, which represented the usual form of statutes of limitation, were regarded as merely denying access to the courts to enforce a right, and so were classified as procedural. This was the classification reached for the South Australian statute in McKain.144 The decision was criticised on the basis that the distinction between limitations on the bringing of a proceeding and the existence of a right was, despite its lineage, generally unreal. It also could undermine the policies underlying the law of the cause, insofar as use of a different limitation period to that prescribed by the law of the cause could keep claims alive even when rights created under the law of the cause were not generally meant to be enforced in that place. However, 137. The issue of execution or the means of enforcement of a judgment is procedural: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at [192] (Callinan J). 138. BHP Billiton Ltd v  Schultz (2004) 221 CLR 400; [2004] HCA 61 at [148] (Kirby J), [251] (Callinan J); Cox v Ergo Versicherung AG [2014] 1 AC 1379. 139. Somers v Fournier (2002) 214 DLR (4th) 611 at [20]; Labuda v Langford [2001] ACTSC 126 at [6]. 140. See, for example, Meyer v Dresser (1864) 16 CB (NS) 646. 141. Prekons Insaat Sanayi AS v Rowlands Castle Contracting Group Ltd [2006] EWHC 1367 (Comm) at [12]. 142. See, for a fuller discussion, Garnett, above n 44, pp 308–11. 143. (1991) 174 CLR 1. 144. See also Pedersen v Young (1964) 110 CLR 162 at 166–7; cf Maxwell v Murphy (1957) 96 CLR 261.

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7.49

the primary criticism, especially for interstate conflicts, was that it encouraged forum shopping. As a result, there has been both legislative and judicial reversal of the law as stated in McKain. 7.48  The reforming legislation was introduced in all Australian states and territories and is now uniform.145 The legislation provides that, where the law of the cause applicable to a claim before a court is the law of another state or territory or New Zealand, the limitation period prescribed by the law of that state or territory or New Zealand is to apply to the proceeding. In addition, if that state’s or territory’s or the New Zealand statute of limitations confers a discretion on a court (say, to extend a limitation period), the forum court is also able to exercise that discretion.146 The reforming legislation expressly provides that the discretion must be exercised in the manner in which it is exercised in comparable cases by the courts of the relevant state or territory or New Zealand. So, as in interstate tort cases the law of the cause is that of the place where the tort occurred, a court in the Australian Capital Territory will apply the New South Wales limitation period in any proceeding involving an accident in New South Wales.147 New Zealand  also accords reciprocal treatment to Australian limitation periods.148 7.49 In Pfeiffer, the High Court held that all issues concerning statutes of limitation would be regarded as substantive as they affect the ability to enforce rights and liabilities.149 There was no restriction of this to interstate statutes of limitation, and as the classification rested on the basic definition of procedural law this would equally apply to foreign statutes of limitation. This was confirmed in Regie Nationale des Usines Renault SA v  Zhang.150 The central question in Neilson v Overseas Projects Corp of Victoria Ltd151 was whether a Chinese limitation period was applicable to claims brought in Western Australia. If Chinese law were the law of the cause, there was no doubt that the Chinese limitation period would defeat the plaintiff ’s claim. Since Pfeiffer, lower courts have also consistently treated foreign limitation periods as matters of substance.152

145. See 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) ss 38–38A; Limitation Act 1974 (Tas) ss 32A–32D; Choice of Law (Limitation Periods) Act 1993 (Vic); Choice of Law (Limitation Periods) Act 1994 (WA). 146. See also McKain v RW Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1 at 31. 147. Graeme Mason v  Murray’s Charter Coaches and Travel Services Pty Ltd (1998) 88 FCR 308; [1998] FCA 1430; Brear v James Hardie & Coy Pty Ltd (2000) 50 NSWLR 388 at 396; [2000] NSWCA 352; KBRV Resort Operations Pty Ltd v Chilcott (2001) 51 NSWLR 516 at 518; [2001] NSWCA 116; Pulido v RS Distribution Pty Ltd (2003) 177 FLR 401 at 408; [2003] ACTSC 61. 148. Limitation Act 2010 (NZ) s 55. 149. (2000) 203 CLR 503; [2000] HCA 36 at [100], [132], [193]. 150. (2002) 210 CLR 491; [2002] HCA 10. 151. (2005) 223 CLR 331; [2005] HCA 54. 152. Griffith v Australian Broadcasting Corp [2002] NSWSC 86 at [403]; Dyer v Dyno Nobel Asia Pacific Ltd [2003] NSWSC 213 at [24]–[25]; Dyno Wesfarmers Ltd v Knuckey [2003] NSWCA 375 at [37]; Fullford v Pearson [2004] NSWSC 150 at [5]; Darcy v Medtel Pty Ltd (No 3) [2004] FCA 807 at [17]–[20]; O’Driscoll v J Ray McDermott SA [2006] WASCA 25; HWC v The Corp of the Synod and Diocese of Brisbane (2008) 220 FLR 92; [2008] QSC 212 at [37]; Henry v Commonwealth (2012) 264 FLR 381; [2012] ACTSC 94; Reid v Wright [2012] NSWSC 1149.

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Priorities and rights of creditors 7.50  Questions relating to the administration and distribution of a debtor’s asset fund, including issues of priority between creditors, have traditionally been regarded as procedural and governed by the law of the forum.153 More recently, public policy has been advocated as a preferable basis for application of forum law. Where claims to a fund are governed by multiple applicable laws, it would be ‘incoherent and impossible’ for a system of priorities to be constructed based on the potentially conflicting priorities rules of such different laws.154 By contrast, the nature and existence of the right of a creditor who makes a claim to a fund, such as a maritime lien, is better seen as substantive and governed by the law under which the right is created.155 In The Ship ‘Sam Hawk’ v Reiter Petroleum Inc,156 however, four judges of the Full Court of the Federal Court157 adopted a new two-step test for recognition of foreign maritime liens in Australia. First, the court should determine what rights exist under the applicable law. If foreign law is the applicable law, then this would require the defendant to show that a maritime lien existed under such law. Second, the court must then characterise the right to determine whether it can be described as a ‘maritime lien’ under Australian law. Such an approach has been rightly criticised for making the enforceability of a maritime lien depend upon the forum in which the ship is arrested and so giving insufficient recognition to foreign laws.158

Notice before action provisions 7.51  A statutory provision that requires a claimant to give notice to the other party before commencing proceedings is best classified as procedural, since it is a means to expedite the resolution of claims. A substantive classification should, however, be adopted where the  consequence of non-compliance with a notice provision would result in the extinguishment of the plaintiff ’s claim.159

Rights of appeal 7.52  The definition of procedure adopted in Pfeiffer160 might suggest that rights of appeal are procedural, as they arguably govern or regulate the mode or conduct of court proceedings after determination at first instance. This view was taken by the New South

153. The Halcyon Isle [1981] AC 221, 230–1. 154. The Ship ‘Sam Hawk’ v Reiter Petroleum Inc (2016) 246 FCR 337 at [160] (Allsop CJ and Edelman J) (with whom Kenny, Besanko and Rares JJ agreed on this point). See also, expressing a similar view, Garnett n 44 above, pp 174–5. 155. The Ioannis Daskalelis [1974] SCR 1248; Garnett, above n 44, pp 181–2; Davies, Bell and Brereton, above n 7, p 398; cf The Halcyon Isle [1981] AC 221. 156. (2016) 246 FCR 337 157. Allsop CJ, Edelman, Kenny and Besanko JJ; Rares J dissenting on this point. 158. (2016) 246 FCR 337 at [430] (Rares J); M Douglas, ‘Characterisation of a Foreign Maritime Lien by the Lex Fori’ (2017) 17 Oxford University Commonwealth Law Journal 152; M Hafeez-Baig, ‘A Novel Approach to Foreign Maritime Liens’ (2017) 133 Law Quarterly Review 378. 159. Hamilton v Merck and Co Inc (2006) 66 NSWLR 48; [2006] NSWCA 55. Note the treatment of statutory provisions of the law of the cause that declare an issue to be ‘substantive’: see 7.24. 160. (2000) 203 CLR 503; [2000] HCA 36 at [192].

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Wales  Court of Appeal in Julia Farr Services Inc v  Hayes. However, in BHP Billiton Ltd v  Schultz162 Callinan J thought that some rights of appeal in issue were substantive. His  Honour considered that the limitation of rights of appeal to questions of law, and the exclusion of some rights of appeal entirely,163 was ‘a serious and substantive matter’.164 As noted above,165 however, a conflict between the ‘mode or conduct of court proceedings’ and ‘the rights and liabilities of the parties’ views should generally be resolved in favour of a procedural classification. 161

The identification of the choice of law rule 7.53  Once the subject matter of the proceeding is classified and is not to be treated as a matter of procedural law, the choice of law rule can be identified. This is also a question of law, although even in the 21st century there are choice of law rules applicable to some common classifications that remain uncertain. The most important choice of law rules are discussed in Chapters 13–24.

The application of the law of the cause 7.54  The choice of law rule identifies which jurisdiction is to provide the law that will determine the merits of the proceeding. This is called ‘the law of the cause’ (lex causae) or ‘the governing law’. If choice of law method has been followed closely when addressing a multi-state problem, the court should already know how the law of the cause will determine the proceeding as, when identifying the existence of a conflict of laws, the court had to consider the likely result on application of the internal rules of each of the legal systems that were possibly relevant to the case. One of these would have been the law of the place ultimately selected as the law of the cause.

Which aspects of the law of the cause? 7.55  In ‘The General Part’ of choice of law method, it can be assumed that it is only the internal law of the cause that is applied in the proceeding.166 However, it does appear — and has recently been strongly confirmed — that the common law requires reference to the choice of law rules prescribed by the selected foreign law as well. That raises the complication of renvoi, which will be considered in Chapter 8.167

161. 162. 163. 164. 165. 166. 167.

(2003) 25 NSWCCR 138; [2003] NSWCA 37. (2004) 221 CLR 400; [2004] HCA 61. Dust Diseases Tribunal Act 1989 (NSW) s 32. (2004) 221 CLR 400; [2004] HCA 61 at [247]; see also Kirby J at [148] n 259. See 7.28. See 7.4. See 8.13–8.35.

213

Chapter 8 Choice of Law Method 2: Complications and Exceptions Introduction 8.1  In Chapter 7, ‘The General Part’ of choice of law method was outlined. This described the process by which a court decides whether there is any need to invoke a choice of law rule, how the relevant choice of law rule is identified and, for the most part, how it is applied. It should be emphasised that this is the general method, and that, on occasion, cases arise when the method must be adjusted or supplemented. The choice of law rules themselves create conceptual difficulties, which have potential to complicate the method used in a choice of law case. In addition, there are multi-state cases in which the result suggested by ‘The General Part’ is considered unacceptable and, in its place, the law of the forum applied. The complications of choice of law method to be considered in this chapter are dépeçage, the incidental question, and renvoi. Following that, some of the grounds on which the court is prepared to exclude the application of an unacceptable law of another place are discussed. These are unrecognised states, penal laws, revenue laws, expropriation laws, foreign governmental interests and public policy. The exclusion of foreign laws on the ground of public policy also raises the relevance of a breach of public international law to choice of law method.

Complications of choice of law method Dépeçage 8.2  The word ‘dépeçage’ means ‘to divide’, and in multi-state cases refers to a process by which different issues in the one case might be divided, segregated and determined in accordance with the laws of different places. So, the one case is decided by reference to the laws of two or more places and, accordingly, the result is one that would probably not be required in any one of them. This suggests that dépeçage arises when the court is classifying the subject matter in dispute. The case is found to involve two or more issues that bring relevant laws into conflict and, so, two or more subject matter classifications are made. From there, each classification is dealt with in accordance with different choice of law rules. 8.3  The practical question is whether Australian courts accept the legitimacy of dépeçage. In general terms, there seems to be no reason why, if classification of the subject matter is to focus on the issue in dispute, different issues in dispute might not be subject to different choice of law rules and referred to differing laws of the cause. As Aldous LJ said in Macmillan 215

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Inc v Bishopsgate Investment Trust plc (No 3):1 ‘Any claim … may involve a number of issues which may have to be decided according to different systems of law.’ More specifically, the question of dépeçage has arisen in multi-state contract cases, and the orthodox position in Australia was, in contrast, that dépeçage of the contract should not take place. This was the view expressed by Evatt J in Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society:2 … 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.

Evatt J’s claim that this is the ‘whole theory’ on which private international law is constructed is both grandiose and far from the mark. The disproportion to one side, Evatt J’s view means that the law of the cause in a multi-state contract case is the law of one place only, and the contract cannot be subject to dépeçage. However, this approach has been questioned, and it would not be safe to suggest that dépeçage of a contract cannot be accepted. There are cases in which judges have contemplated the possibility of dépeçage, though ultimately concluding that the law of the cause was the law of one place only.3 There  are two English cases that, nevertheless, could be genuine examples of dépeçage: Libyan Arab Foreign Bank v  Banker’s Trust Co4 and Forsikringsaktieselskapet Vesta v Butcher.5 These cases are discussed in Chapter 17. As dépeçage has been more marked in contract cases, extended consideration of the question will be left for that chapter.6

The incidental question 8.4  The incidental question is related to dépeçage. In the one multi-state case, there are two issues to be determined and, if normal choice of law rules are applied, they would be determined in accordance with different choice of law rules. However, the incidental question method becomes relevant where the two issues, though referable to different choice of law rules, are related, in the sense that one must be determined before the other can be as well. Accordingly, the determination of one question is incidental to the determination of the other. The problem is illustrated by Schwebel v Ungar.7 8.5  In Schwebel v Ungar, the respondent, Ungar, was born in Hungary, where she had a domicile of origin. She married twice. The first time was to Waktor, and the marriage took place in Hungary. However, the couple, who were Jews, fled Hungary with the intention of migrating to Israel. En route, when in Italy, the couple divorced in accordance with a Jewish gett ceremony. Each of them independently migrated to Israel, where Ungar acquired a domicile of choice. Subsequently, she visited Canada where she was married the second 1. 2. 3. 4. 5. 6. 7.

[1996] 1 All ER 585 at 614. (1934) 50 CLR 581 at 604. For example, Weckstrom v Hyson [1966] VR 277 at 282–5; Wahbe Tamari & Sons Co v Bernhard Rothfos Beteiligungsgesellschaft mbH [1980] 2 Lloyd’s Rep 553. [1989] QB 728. [1988] 2 All ER 43. See 17.25. Schwebel v Ungar (1963) 42 DLR (2d) 622 (aff ’d (1964) 48 DLR (2d) 644).

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8.9

time, to the appellant, Schwebel. However, Schwebel later applied in the High Court of Ontario for a declaration that the marriage was void, on the ground that Ungar was still married to Waktor at the time of the second marriage. 8.6  There were two issues in the circumstances of Schwebel v Ungar that could give rise to choice of law questions. The main issue, in the sense that it was the ultimate question to be determined, was whether Ungar had the capacity to enter the second marriage. This was a question of the essential validity of the marriage and, accordingly, would be determined by the law of the place where Ungar was domiciled at the time of the second marriage — the law of Israel. However, there was also a preliminary issue. Was the divorce by gett effective? Only if the gett were capable of recognition in Ontario would Ungar have been unmarried, and legally capable of entering the second marriage. It is the treatment of the preliminary issue where the incidental question can arise. 8.7  On the one hand, the court could treat the preliminary issue and the main issue as independent of each other. In this case, each issue should be determined in accordance with the independently applicable choice of law rule. This is the approach taken by McRuer CJ in the High Court of Ontario in Schwebel v Ungar. So, the preliminary issue concerning the recognition of the gett was, at common law, to be determined in accordance with the law of the place where the parties were domiciled at the time of the divorce. For both Ungar and Waktor this was the law of Hungary, under which the gett was not recognised. That being so, the answer to the main question is that, since she was still married to Waktor, Ungar did not have the legal capacity to enter the second marriage and, accordingly, it was void. 8.8  On the other hand, the court could treat the preliminary issue as merely an incident of the main issue, and determine both in accordance with the choice of law rule applicable to the main issue. This is the incidental question approach, and it is the method used by the Ontario Court of Appeal in determining the appeal from McRuer CJ’s decision in Schwebel v Ungar. The main issue as to Ungar’s capacity to enter the second marriage would be determined in accordance with the law of Israel. Under the law of Israel, the gett was recognised and, accordingly, Ungar was considered unmarried and capable of entering the second marriage. The Court of Appeal therefore held that the second marriage was valid. 8.9  It is possible to reconfigure the above analysis of McRuer CJ’s decision.8 Arguably, the decision did not involve an independent application of the choice of law rule for each issue. For, once the preliminary issue of the recognition of the gett was resolved against its being recognised, the main issue of capacity to marry was determined without reference to its own choice of law rule. In other words, the real point to be resolved where the issues are related is which issue is to have priority over which. Is, as McRuer CJ decided, the preliminary issue to be decided by reference to its conflicts rules first? Or, as the Court of Appeal decided, is the main issue to be decided by reference to its conflicts rules? Of course, the outcome in Schwebel v Ungar suggests that, where there are two related issues to be determined in a multi-state case, both issues should be determined in accordance with the choice of law rule applicable to the main question. The incidental question is therefore determined in accordance with the law of the cause for the main question. 8.

See 8.7.

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8.10  A more direct approach to Schwebel v  Ungar was taken in a recent critique of the decision.9 Fassberg’s view of the decision is that it deals with only one issue: capacity to marry. This is governed by the law of the parties’ domicile, the only question being, the parties’ domicile at what point? McRuer CJ took this to be the parties’ domicile at the time of the gett, where the Court of Appeal took it to mean their domicile at the time the second marriage was solemnised. Fassberg’s suggestion, consistent with the result (though not the reasoning) in Schwebel v Ungar, is that the question of capacity should be referred to the parties’ domicile at the time the proceedings are brought. After all, the point of interest in the litigation is the person’s status ‘today’.10 However, this is unlikely to be suitable in marriage cases where it will be important to know whether, at the time of the solemnities, the parties have capacity to marry. Fassberg’s analysis, nevertheless, still requires an ordering of the two issues in the case as preliminary and main issues, but with a focus exclusively on the main issue. 8.11  It is likely that the incidental question approach is the law in Australia. Haque v Haque (No 1)11 involved succession to both movable and immovable property, although the incidental question only arose in respect of the movables. The testator, Abdul Haque, was a Muslim, born domiciled in India. In 1925 he married Kulsum Bibi, and in 1927 migrated to Western Australia. In 1955, the testator married a second wife, Azra Bux, in Fremantle. This marriage was actually polygamous, and so not recognised in Western Australia. However, it was considered valid under Islamic law, which was the recognised personal law for Muslims in India. The testator signed a pre-nuptial agreement with Azra before the second marriage, by which he agreed to recognise that any children of the second marriage would be legitimate and also to recognise any entitlements those children would have to inherit his property as his legitimate children under Islamic law — even if he made a will to the contrary. He did make a will to the contrary, all his property being left to his brother, Nural Haque. The first wife, Kulsum, and all the testator’s children claimed that they were entitled to share in the testator’s property in accordance with Islamic law. In the case of the children of the second marriage, this claim mainly rested on the pre-nuptial agreement. The High Court held that the disposition of the testator’s movable property was to be determined in accordance with the law of the place where he was domiciled at the time of his death: India. The law of India recognised Islamic law as the testator’s personal law, and therefore that the children of the second marriage were entitled to share in the movable property. 8.12  There were two questions in Haque (No 1) that had potential to raise choice of law issues. The main question was whether the children of the second marriage were entitled to share in the testator’s movable property. This would be governed by the law of the place where the testator was domiciled at the time of his death, which was Indian or Islamic law. Islamic law recognised that legitimate children had rights in the testator’s property, even if he made a will to the contrary. The preliminary question was whether the children of the 9. 10.

11.

C W Fassberg, ‘On Time and Place in Choice of Law for Property’ (2002) 51 International and Comparative Law Quarterly 385. Fassberg, above n 9, at 396–7. Fassberg argues, however, that where status is to be determined by the law of the forum, the courts should be able to refer to domicile at the time of the divorce. The argument in favour of domicile at the time of the proceedings only applies where a person’s status is referable to a foreign law. (1962) 108 CLR 230.

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second marriage were legitimate. Under the law of Western Australia, the children would have been considered illegitimate, as the second marriage would not have been recognised. The High Court held that the children were to be considered legitimate, ‘whatever the law of Western Australia might say’.12 The court did not expressly address the issue whether the preliminary issue should be treated independently of the main issue, or as an incident of the main issue. However, by determining the preliminary question of legitimacy in accordance with the Islamic law that governed the main issue, the court’s result in Haque (No 1) is consistent with the incidental question method.

Renvoi The nature of the problem 8.13  The term ‘renvoi’ means ‘remit’, or ‘send back’. To understand the problem, it is important to bear in mind the distinction between internal (or dispositive) rules and choice of law (or indicative) rules.13 It is probably best to explain the specific problem of renvoi in private international law by example. In Collier v Rivaz,14 the testator, Ryan, was born in Ireland. For most of his life Ryan lived in England, but he moved to Belgium in 1802 where he died in 1829. He left a will and six codicils. Four of the codicils dealing with movable property were valid under English law, but invalid under Belgian law. In both England and Belgium, questions of testate succession to movable property were determined by the law of the place where the deceased was domiciled at the time of his death. However, under English private international law, Ryan was regarded as domiciled in Belgium at the time of his death, even though he was a British subject. Under Belgian law, the concept of domicile was more like nationality, and Ryan was deemed to be domiciled in England at his death. Sir Herbert Jenner in the Prerogative Court of the Archbishop of Canterbury had to determine the validity of the codicils. The private international law of England required this to be determined by the law of Belgium, but the private international law of Belgium required the question to be determined by the law of England.

Remission and transmission 8.14  Collier v  Rivaz illustrates one (and the more common) form of the problem of renvoi: remission. The choice of law rules of the forum require the matter to be determined in accordance with the law of another place (say, Ruritania), whereas the choice of law rules of Ruritania require the matter to be determined in accordance with the law of the forum. So, the law of the forum refers the question to the law of Ruritania, and the law of Ruritania remits the matter to the law of the forum. In a case of remission, the question is whether the forum court is to apply the law of Ruritania or the law of the forum. 8.15  The other form of renvoi is transmission.15 For example, if in Collier v  Rivaz the private international law of Belgium had required a question of succession to movables 12. 13. 14. 15.

At 248. See 7.4. (1841) 2 Curt 855; 163 ER 608. See Note (1898) 14 Law Quarterly Review 231 at 232.

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to be determined by the law of the place where the testator was born, it would decide the case by reference to a third legal system: the law of Ireland. So, in a case of transmission the forum court would, by the choice of law rules of the forum, refer the question to the law of Ruritania, only to learn that the choice of law rules of Ruritania transmit the question to the law of yet another place (say, Hentzau). The question in a case of transmission is whether the forum court is to apply the law of Ruritania or of Hentzau, or of the forum. 8.16  The problem of renvoi is often presented as a ‘dialogue’ between courts. The forum refers the question to Ruritania, which remits the question to the forum or transmits it to Hentzau. However, that is a conceptual convenience. There is no actual dialogue between the courts of the various countries. The reference and remission or transmission take place entirely within the mind of the forum judge, and the whole exercise is one by reference to the forum’s choice of law rules and the forum’s means of dealing with the problem of renvoi.16

A conflict of conflicts rules 8.17  Both remission and transmission arise because there is a conflict of conflicts rules. The choice of law rules in the forum and Ruritania differ, initially identifying as the law of the cause the laws of different places. The problem of renvoi therefore arises when the court is applying the law of the cause (as initially selected), the question being which part of the law of the cause is first to be applied. Often, the problem of renvoi is said to arise because the forum’s choice of law rules choose the whole of the law of the cause — its internal rules and its choice of law rules. The majority in the High Court in Neilson v Overseas Projects Corp of Victoria Ltd cast the problem in this way: that is, as emerging from the choice of law rule’s selection of the whole of the law of the cause.17 However, this plainly does not happen, as internal rules and choice of law rules are, in significant respects, exclusive of each other. Whether or not renvoi occurs therefore depends on whether the forum’s choice of law rules select, in the first instance, the internal rules of the law of the cause or, instead, the choice of law rules of the law of the cause.18 Thus, in a case of (potential) remission, the forum court could apply the internal rules of Ruritania only. As it would not ‘see’ Ruritania’s choice of law rules (by which Ruritanian law would deal with the case in accordance with the law of the forum), no renvoi occurs. However, if the forum court’s choice of law rules select, in the first instance, the choice of law rules of Ruritania, then the remission to the law of the forum occurs and the forum court must have some means of dealing with the problem of renvoi. There are at least two general approaches to the problem: ignoring the renvoi, or recognising it. If the problem is recognised, there are at least four more specific ways of dealing with it.19

16. 17. 18.

19.

See Neilson v Overseas Projects Corp of Victoria Ltd (2005) 223 CLR 331 at 365; [2005] HCA 54. (2005) 223 CLR 331 at 367, 369, 388, 418–19; [2005] HCA 54. E H Abbot, ‘Is Renvoi a Part of the Common Law?’ (1908) 24 Law Quarterly Review 133 at 135–6; T A Cowan, ‘Renvoi Does Not Involve a Logical Fallacy’ (1938) 87 University of Pennsylvania Law Review 34 at 39–40. See, generally, the classifications in E Griswold, ‘Renvoi Revisited’ (1938) 51 Harvard Law Review 1165 at 1167–70.

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Ignoring the renvoi 8.18  The forum court could interpret the reference to the law of Ruritania as a reference to the internal law of Ruritania only. Confronted with the same multi-state case, Ruritanian law might deal with the question in accordance with the law of the forum, or the law of a third place, Hentzau. However, as the forum’s choice of law rules are not permitted to ‘pick up’ the choice of law rules of Ruritania, it disregards the potential remission to the law of the forum or transmission to the law of Hentzau. Ignoring the renvoi therefore means that the forum court may decide the case differently to the way that a Ruritanian court would decide it.

Recognising the renvoi 8.19  The forum court could interpret the reference to the law of Ruritania by the forum’s choice of law rules as a reference, in the first instance, to the choice of law rules of Ruritania. Accordingly, if the Ruritanian choice of law rule requires the question to be determined in accordance with the law of the forum, the forum court must recognise the remission. If the Ruritanian choice of law rule requires the question to be determined by the law of Hentzau, the forum court must recognise the transmission. However, the forum’s recognition of the remission or transmission could be dealt with in accordance with at least four different theories: • The désistement theory: The forum court recognises that the law of Ruritania either remits the question to the law of the forum or transmits the question to the law of Hentzau. The forum court therefore concludes that the law of Ruritania does not, in its own terms, intend that it apply its own law to the question. So, the court in the forum assumes that its choice of law method has not identified a possibly applicable law of the cause. That being so, the forum’s choice of law rules have failed, and so the forum abandons its choice of law method. It applies the law of the forum by default.20 • ‘Accepting the renvoi’ or single renvoi: The forum court ‘refers’ the question to the Ruritanian choice of law rules. If the law of Ruritania remits the question to the law of the forum, the forum court accepts that remission and applies the law of the forum as the law of the cause. That is the result that the law of Ruritania intended. This is how Sir Herbert Jenner decided Collier v Rivaz.21 His Lordship applied the English choice of law rule that the question of the validity of the codicils be determined by the law of Belgium. Then, Sir Herbert accepted the Belgian choice of law rule remitting the same question to the law of England. At that point, he refused to apply the English choice of law rule again. The internal law of England was applied, and the codicils were held to be valid.22 However, the theory of single renvoi has a different result in a case of a transmission. If the Ruritanian choice of law rule transmits the question to the law of Hentzau, the forum court accepts Ruritania’s transmission and applies the internal law of Hentzau as the law of the cause. 20. 21. 22.

Griswold, above n 19, at 1168; E O Schreiber, ‘The Doctrine of Renvoi in Anglo-American Law’ (1918) 31 Harvard Law Review 523 at 529–33. (1841) 2 Curt 855; 163 ER 608; see also 8.14. See also Casdagli v Casdagli [1918] P 89 at 111; Nolan v Borger 203 NE 2d 274 (1963).

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• ‘Rejecting the renvoi’: The forum’s choice of law rules refer the question to Ruritania’s choice of law rules. If Ruritanian law remits the question to the law of the forum, the court in the forum rejects that remission and applies the law of Ruritania as the law of the cause. If the law of Ruritania transmits the question to the law of Hentzau, the forum court rejects Ruritania’s transmission and, again, applies the law of Ruritania as the law of the cause. The result is the same as when ignoring the renvoi, with the formal difference that the foreign choice of law rule is recognised, although not applied. • The foreign court theory or double renvoi: In accordance with its own choice of law rules, the forum court refers the question to the law of Ruritania. It then identifies how a court in Ruritania would decide the case, after the court in Ruritania had applied Ruritania’s solution to the problem of renvoi. So, the theory of double renvoi is not in itself an immediate solution to the problem of renvoi. It adopts whatever solution to renvoi the courts in Ruritania had adopted. This approach therefore emphasises consistency in outcome with the foreign court, and therefore discourages forum shopping.23 Effectively, it adopts the result in the case that the Ruritanian court will have reached, having applied its own choice of law rule, and its particular solution to the problem of renvoi — whether that be ignoring the renvoi, the désistement theory, or accepting or rejecting the renvoi.

When is renvoi used? 8.20  The traditional position of the common law was that the doctrine of renvoi was generally not recognised in choice of law cases. As a consequence, in most multi-state cases in which the use of choice of law rules was triggered, the court would ignore any potential renvoi. In Australia at least, this position must be open to serious doubt. In Neilson v Overseas Projects Corp of Victoria Ltd,24 the High Court was prepared to adopt the doctrine of renvoi in a foreign tort case, even though the limited authority that was previously available on point was to the effect that renvoi was inapplicable in tort cases.25 While in Neilson Gummow, Hayne and Kirby JJ said that they were not prescribing a standard approach to renvoi in all choice of law cases that might be heard in Australian courts,26 aspects of the decision suggest that the question of renvoi might now be open in areas of choice of law that, beforehand, were closed to it. In particular, the High Court’s conclusion that, in its reference to a foreign law, the choice of law rule for tort was taken to be selecting the whole of the foreign law,27 effectively meant that it selected the foreign choice of law rule in preference to the foreign internal laws. There was nothing in this conclusion that was peculiar to the law of tort, with the consequence that the same reasoning might be equally applicable in other areas of choice of law. Further, the rationale of the court in Neilson for adopting the theory of double renvoi was to ensure that the Australian court reached the same result as the relevant foreign court would.28 Again, there is nothing in this policy that is peculiar to the law of tort, and the 23. 24. 25. 26. 27. 28.

See 1.28–1.30. (2005) 223 CLR 331; [2005] HCA 54. McElroy v McAllister 1949 SC 110 at 126. (2005) 223 CLR 331 at 366, 388; [2005] HCA 54. At 367, 369, 387, 418–19. At 342, 364, 392–3, 418–19.

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8.21

same argument could be easily raised in other areas of the law. Even before Neilson, the doctrine of renvoi was accepted in cases involving marriage validity (even when dependent on the recognition of a decree of divorce or annulment), legitimation29 and succession to property on death.30 While the matter has not been conclusively resolved, the balance of recent English authority rejects the application of the doctrine to the issue of transfer of title to chattels.31 Since Neilson, the Western Australian Court of Appeal, accepting that the reasoning of Neilson did not limit renvoi to tort cases, recognised that the doctrine is available in multi-state contract cases, at least where the parties have made no express choice of law in their contract and the court is required to select the applicable law.32 Where, however, the parties have made an express choice of foreign law, it has been argued that the doctrine of renvoi should not apply as the parties would more likely have intended that the domestic law of the foreign country govern their rights and obligations under the contract in this situation.33 The broad rationale for the use of renvoi in Neilson, therefore, suggests that the doctrine could be available for use in any area of law for which statute does not forbid it.34

Double renvoi in Australian law Tort cases 8.21  The doctrine of double renvoi has been adopted by the High Court for use in multi-state tort cases. Given that the choice of law rule for torts is uniform across the Australian states and territories, the problem of renvoi is not as likely to arise in interstate tort cases.35 In the landmark case of Neilson v Overseas Projects Corp of Victoria Ltd,36 the plaintiff, an Australian citizen, was a long-term resident of, and domiciled in, Western Australia. In  the early 1990s, the plaintiff ’s husband was employed to work in the People’s Republic of China for the defendant company. The defendant was a Victorian Government-owned corporation, registered in Victoria. Its insurer was incorporated in New South Wales. The husband’s contract entitled him to an apartment in Wuhan, China, and for the plaintiff to accompany him to China. In October 1991, the plaintiff was injured 29. 30. 31.

32. 33. 34. 35. 36.

Re Askew [1930] 2 Ch 259. Re Ross [1930] 1 Ch 377. Macmillan Inc v  Bishopsgate Investment Trust plc (No 3) [1995] 1 WLR 978; Islamic Republic of Iran v  Berend [2007] EWHC 132; Blue Sky One Ltd v  Mahan Air [2010] EWHC 631 (Comm); cf Glencore International AG v Metro Trading Inc [2001] 1 Lloyd’s Rep 284; and The ‘WD Fairway’ [2009] 2 Lloyd’s Rep 191; see 21.17. O’Driscoll v J Ray McDermott SA [2006] WASCA 25 at [12], [59]–[60]. M Davies, A Bell and P Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, 2014, p 366; Proactive Building Solutions v Keck [2013] NSWSC 1500 at [27]–[30]. R Mortensen, ‘ “Troublesome and Obscure”: The Renewal of Renvoi in Australia’ (2006) 2 Journal of Private International Law 1 at 23; see 22.37. Note especially in the area of defamation where uniform legislation now applies in all states and territories; see 18.18. (2005) 223 CLR 331; [2005] HCA 54. For critiques of the decision, see Mortensen, above n 34; A Dickinson, ‘Renvoi: The Comeback Kid’ (2006) 122 Law Quarterly Review 183; A Mills, ‘Renvoi and Proof of Foreign Law in Australia’ [2006] Cambridge Law Journal 37; M Keyes, ‘Foreign Law in Australian Courts: Neilson v Overseas Projects Corporation of Victoria Ltd’ (2007) 15 Torts Law Journal 9; R Garnett, ‘The Dominance of Uniformity of Outcome in Australian Choice of Law: Is it Time to Relax the Grip?’ (2013) 37 Australian Bar Review 192 at 206–10.

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when she fell over the edge of the staircase in the flat. She was initially hospitalised in China, but on medical advice returned to Australia after her discharge from hospital. In June 1997, the plaintiff brought claims in the Supreme Court of Western Australia in contract and tort for occupier’s liability. The parties agreed that, if the claims were brought within the limitation period, the plaintiff was entitled to damages of $300,000. Accordingly, the only question to decide in Neilson was whether the claims — brought just less than six years after the accident — were time-barred. The Western Australia limitation period was six years and so, by the law of the forum, the claim would be within time. However, the Australian choice of law rule for torts required all matters of substance (including the question of limitation) to be determined by the law of the place where the tort occurred. This was China, and by Chinese law a one-year limitation period was applicable to claims relating to personal injuries. Under ‘special circumstances’ a court could extend this. It was therefore important to the plaintiff that she establish that Western Australian law governed the question of limitation. 8.22  The Chinese choice of law rule, like the Australian, generally required the question to be governed by the law of the place where the delict occurred. However, unlike the Australian choice of law rule, it also had an exception that stated that, if the parties had a common nationality or domicile, the court ‘may’ apply the law of nationality (the lex patriae) or the law of the place of domicile (the lex domicilii). A difficult question in Neilson was whether the plaintiff had adequately established the effect of the exception to the Chinese choice of law rule and whether, in the circumstances of Neilson, Australian law as the law of the common nationality would be applied by a Chinese court.37 For the present, it is sufficient to note that a majority in the High Court (Gleeson CJ and Gummow, Hayne, Callinan and Heydon JJ) accepted that there was enough available to the court to show that the Chinese choice of law rule would lead to the application of Western Australian law. The question then became whether the Chinese choice of law rule would be recognised by the Australian forum, and applied. 8.23  At first instance in Neilson, McKechnie J dismissed the claim in contract but allowed the claim in tort.38 If Chinese law applied, his Honour considered that there were ‘special circumstances’ for an extension of the one-year limitation period. However, McKechnie J also held that the Chinese choice of law rule gave him a discretion to apply Australian law, which he did ‘because both parties are nationals of Australia’.39 Although he made no mention of the doctrine, in this connection McKechnie J was recognising the doctrine of renvoi and applying the theory of single renvoi. The insurer appealed to the Full Court of the Supreme Court,40 which did see  the renvoi. McLure J (with whom Johnson J and Wallwork AJ  agreed)41 disagreed with both of the critical conclusions in McKechnie J’s judgment. There were no ‘special circumstances’ to justify an extension of the Chinese limitation period,42 and the doctrine of renvoi had no application in tort cases.43 An appeal 37. 38. 39. 40. 41. 42. 43.

See 9.6–9.7. [2002] WASC 231. At [199]–[208]. Mercantile Mutual Insurance (Australia) Ltd v Neilson (2004) 28 WAR 206; [2004] WASCA 60. At 222. At 220. At 214, 216.

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8.26

was therefore taken to the High Court, which decided that the claims in tort were governed by the Western Australian limitation period. 8.24  In Neilson, a majority comprising Gleeson CJ and Gummow, Hayne, Kirby and Heydon JJ accepted the doctrine of double renvoi for tort cases. Therefore, once the forum’s choice of law rule pointed to the application of a foreign law, Gummow and Hayne JJ thought that ‘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’.44 Gleeson CJ and Kirby and Heydon JJ made similar observations about the need, under the method of Australian choice of tort law, to adopt the result that it seemed that the foreign court would reach in the same case.45 In doing so, the local judge had to be scrupulous in matching the assumed decision of the foreign court. At first instance, something like this had been tried in McKechnie J’s decision to extend the Chinese limitation period. However, the judge’s mistake, according to the High Court, had been ‘to step in the shoes of a foreign judge, exercising that judge’s powers as if sitting in the foreign court’.46 The identification with the approach, it was assumed, that the foreign court would take was not precise enough for the High Court. As Kirby J put it, the role of the Western Australian judge ‘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’.47 8.25  Of course, to adopt the result that the evidence showed that a Chinese court would reach, it was necessary to know how the Chinese court, applying Australian law, would deal with the Australian choice of law rule that required application of Chinese law in a tort case where the accident occurred in China. There was simply no evidence as to whether a Chinese court would ignore or recognise the renvoi. But the majority accepted that the court was free to use Australian principles to interpret the Chinese choice of law rules. In doing so, the majority (Gleeson CJ and Gummow, Hayne and Heydon JJ) concluded that the Chinese court would ignore the renvoi,48 and apply the internal law of Western Australia to the claim. This included the Western Australian limitation period, so the claim was within time. 8.26  Unlike the other judges of the majority in Neilson, Callinan J preferred to accept the renvoi: ‘[T]he right course to adopt here is for the Australian courts to accept the (likely) Chinese reference to Australian law in accordance with the practice of most jurisdictions’.49 The plain rationale for Callinan J’s adoption of the theory of single renvoi was the priority it gave to application of the law of the forum: … [I]f the evidence shows that the foreign court would be likely to apply Australian law by reason of its choice of law rules or discretions, then the Australian common law of torts should govern the action. This is a solution which offers finality, and limits the need to search for and apply foreign law.50 44. 45. 46. 47. 48. 49. 50.

(2005) 223 CLR 331 at 363; [2005] HCA 54. At 342, 389, 392–3, 393, 418–19. At 392. See also at 342, 369, 409, 419. At 392–3. At 341–2, 373–4, 420. At 414. At 415.

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It therefore appears that Callinan J may not have endorsed the use of single renvoi in a case of a transmission, at least if the third jurisdiction were not another Australian state or territory. The only judge in Neilson who believed it best not to allow the problem of renvoi at all was McHugh J. In dissent, McHugh J held that the plaintiff had not managed to prove the content of the Chinese choice of law rule. However, his Honour would not have given effect to any foreign choice of law rule had it been proved by evidence placed before the court. The reference to Chinese law was therefore a reference to the internal law of China, and, accordingly, McHugh J believed that the claim was out of time.51 8.27  Neilson is a strong decision in favour of the doctrine of renvoi and, as has been noted,52 may have implications beyond choice of law in tort. There are a number of factors at issue in the case that could suggest that the decision is an instance of forum preference. These include the approach taken, despite a distinct lack of supporting evidence, to establish that the Chinese choice of law rule did require application of the law of Western Australia;53 the need also to couple this with the doctrine of renvoi if Western Australian law were to apply; and the assumption, again without any evidence, that the ‘national law’ was Western Australian even though there is no state-based nationality and the defendant was a Victorian company. As there are no exceptions to the choice of law rule in tort that would otherwise allow application of the law of the forum,54 renvoi would possibly be the only means of securing its application in a foreign tort case. In Callinan J’s judgment, the forum orientation of the decision is explicit.55 At the same time, though, the only real policy justification that the High Court gave for the adoption of double renvoi was decisional harmony: the objective of securing the one result, regardless of whether the matter had been litigated in China or Western Australia.56 As Heydon J said: ‘This Court has seen it as undesirable that “the existence, extent and enforceability of liability [should vary] according to the number of forums to which the plaintiff may resort” .’57 This policy rationale might be more compelling if there were not significant doubts about the way that the High Court satisfied itself, without evidence, that a Chinese court would apply Western Australian law.58 Succession on death 8.28  In Re Annesley; Davidson v Annesley,59 the testatrix died in France in 1924, leaving a will disposing of her movable property. She was a British subject, but domiciled at the time of her death in France. Under the internal law of England (which was assumed to be the law applicable to a British subject) the testatrix’s will was valid. Under the internal law of France, only one-third of the estate could be dealt with by will. The other two-thirds 51. 52. 53. 54. 55. 56. 57. 58. 59.

At 356. See 8.20. See 9.6–9.7. Other than where a matter is classified as procedural or would infringe local public policy; see 18.24–18.28. (2005) 223 CLR 331 at 415; [2005] HCA 54. At 342, 363. At 419. See 9.6–9.7. [1926] Ch 692.

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8.30

had to be distributed amongst the testatrix’s children. Under English choice of law rules, a question of succession to movables was to be determined in accordance with the law of the place where the deceased was domiciled at the time of death: that is, the law of France. Under French choice of law rules, the question was to be determined by the law of the place where the deceased was a national at the time of death — presumed to be the law of England. In the High Court of Justice in England, Russell J identified a remission. English choice of law rules required the case to be determined in accordance with the law of France, but the French choice of law rules required the case to be determined in accordance with the law of England. However, the theory of double renvoi required Russell J to determine how a French court would decide the case. The evidence suggested that the Cour de cassation in France would, if confronted with the problem of renvoi, adopt the theory of single renvoi. So, a court in France would refer the question to the law of England and note that the law of England would remit it to the law of France. That being so, the court in France would accept the remission and apply the internal law of France. By the theory of double renvoi, Russell J had to adopt the decision the French court would reach. Thus, he applied the law of France to the question, and only one-third of the estate could be dealt with by will. 8.29  In Annesley, therefore, the court in England adopted the result that would have been reached by a court in France. It did not apply the theory of single renvoi as that theory would be applied by a court in England. The theory of double renvoi required the court in England to apply the theory of single renvoi as that would be applied by a court in France. The same method was adopted in Re Ross; Ross v Waterfield,60 but with a different result. There, the testatrix also died a British subject, but domiciled in Italy. Under her will, she had cut her son from her estate. This was effective under the law of England, which was again assumed to be the law of the place where she was a national at the time of her death. However, under the law of Italy the son was entitled to one-half of all property in Italy and one-half of all movable property located elsewhere. The English choice of law rule again required a question of succession to movables to be determined in accordance with the law of the place where the deceased was domiciled at the time of death — the law of Italy. The Italian choice of law rule provided for the question to be determined by the law of the place where the deceased was a national at the time of death, which was presumed to be the law of England. Luxmoore J noted that the problem of renvoi arose: he, as an English judge, referring the question to the law of Italy and the law of Italy remitting the question to the law of England. The theory of double renvoi then required him to adopt the decision that a court in Italy would reach, which therefore meant he had to determine how the problem of renvoi would be dealt with in Italy. It appeared that an Italian court would reject the renvoi. Therefore, on referring the question to the law of England and finding that it remitted the question to the law of Italy, an Italian court would reject the remission and apply English law. Luxmoore J accordingly applied English law, and held that the son had no entitlement to his mother’s estate. 8.30  The results in Annesley and Ross differ, because (as it appeared on the evidence) the problem of renvoi was solved in different ways in France and Italy. However, the judges 60.

[1930] 1 Ch 377.

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in both cases used the theory of double renvoi consistently, adopting the decision that, on the evidence, it appeared the relevant foreign court would make. This again illustrates the primary policy rationale of the theory of double renvoi that was so influential in Neilson v Overseas Projects Corp of Victoria Ltd.61 If the assessment of the foreign court’s approach to the case is accurately established by the evidence, it necessarily delivers decisional harmony. It requires the decision that would be reached in the foreign place to be made in the courts of the forum. So, whether the case is adjudged in the forum or foreign court, the result will be the same. Nevertheless, the theory of double renvoi also brings its own considerable conceptual problems.

Shortcomings of double renvoi62 8.31  The theory of double renvoi is not a direct solution to the problem of renvoi. Indeed, it assumes that the common law either cannot or should not deal with remission or transmission directly, and must ride on the solution reached by courts in the other place. Ironically, having itself abdicated responsibility for directly solving the problem of renvoi, the common law court then assumes that the courts in the other territory have formulated some reasonable, direct solution to the problem. Unsurprisingly, that is not necessarily the case. In Re Duke of Wellington,63 a remission arose, again in a succession case, between the laws of England and Spain. Wynn-Parry J therefore applied the theory of double renvoi, by which he had to determine how a court in Spain would deal with a remission. However, eminent Spanish jurists had given conflicting evidence on how a court in Spain would deal with the problem of renvoi. The truth was that the law of Spain did not have a settled answer to the problem. Still, the theory of double renvoi required Wynn-Parry J to assume that the law of Spain did have a solution. He, an English judge, therefore had to sift the Spanish legal sources to determine how a court in Spain would deal directly with a remission. This was even though the theory of double renvoi denied him the right to consider English legal sources in developing a direct solution to renvoi. Concluding that the law of Spain would reject a remission from the law of England, Wynn-Parry J held that a court in Spain would apply the internal law of England to the case and did likewise. Slightly different needs arose in Neilson,64 where there was no evidence as to how the foreign Chinese law would deal with the problem of renvoi. Gummow and Hayne JJ merely noted that there was no evidence that the Chinese choice of law rule would make any reference to the forum’s choice of law rules.65 Gleeson CJ and Heydon J thought that the use of the word ‘applied’ in the English translation of the Chinese choice of law rule suggested that a Chinese court would ignore the renvoi.66 The process is artificial — this was an Australian construction placed on an unofficial translation of the Chinese law, with no warrant that it would give anything akin to the Chinese choice of law rule as understood in any Chinese court. However, it is an artificial task that is directed by the imperatives of the doctrine of double renvoi. 61. 62. 63. 64. 65. 66.

(2005) 223 CLR 331; [2005] HCA 54; see also 8.21–8.27. Mortensen, above n 34, at 12–22; Garnett, above n 36, at 206–10. [1947] Ch 506. (2005) 223 CLR 331; [2005] HCA 54; see also 8.21–8.27. (2005) 223 CLR 331 at 373; [2005] HCA 54. At 342, 420.

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8.32  The theory of double renvoi also assumes that the conclusion the court in the forum would reach is the result that is dictated by the law of the foreign country. As has been seen with Neilson,67 there may be significant difficulties with the evidence on the relevant foreign law so that, in an objective sense, it is also difficult to have any confidence that the legal scenario accepted by the court as representing the foreign law has any close symmetry to the true position of the foreign law. Further, cases involving a remission or transmission on the basis of nationality have shown that the result is often one reached by adjusting the law of the foreign place by the principles of the law of the forum. This has long been a problem in the common law world, where in cases of, for example, tort or succession, ‘plurilegislative’ nationalities — such as that of a British subject or an American, British, Canadian or Australian national or citizen — do not help to identify the relevant private law area that could deal with the case. Neilson again exemplifies the problem, once the court satisfied itself that the Chinese choice of law rule would have the parties’ common national law apply. This, of course, is the ‘national law’ as that would be understood in China, but there was no evidence as to how a Chinese court would interpret that or deal with citizenship in a federation. Further, the defendant was a corporation and, by Australian principles, corporations do not hold Australian nationality.68 There is also no Australian national law on limitation of actions, and if a claim is being brought under federal law a limitation period could only be identified if the court were exercising federal jurisdiction. But a Chinese court would not be exercising federal jurisdiction when trying to determine what the Australian national law on limitation would be. Finally, there is the problem that, if resort is made to a domicile of the parties with common nationality,69 the parties in Neilson were ‘domiciled’ or registered in different states. In Neilson, the difficulty of finding the national law in a federation was noted by a number of the judges,70 and it was one reason why Kirby J was not satisfied that the plaintiff had shown that Chinese law would remit the question to Western Australian law.71 However, the parties had, throughout the proceedings, assumed that the national law was Western Australian, and the court accepted that they had not joined issue on the point. While this is consistent with the adversarial method, it is nevertheless incompatible with the claim that the foreign court’s decision is being adopted. In Annesley, Ross and Duke of Wellington, the laws of the other places — all civil law countries in continental Europe — required questions of succession to be determined by the law of the place where the deceased was a national at the time of death. The deceased persons in all of these cases were British subjects, a nationality that, at the time, spanned the different countries of the United Kingdom and all of the other dominions, states, provinces, territories and colonies of the Empire and Commonwealth. The judges in Annesley, Ross and Duke of Wellington assumed that the law of England was the law applicable to the British subjects in question. Still, the identification of English law as the national law of a British subject was not expressly required by the laws of the foreign countries involved. It  was merely assumed by the English judges.

67. 68. 69. 70. 71.

See also 8.21–8.27. See 10.32. See Simmons v Simmons (1917) 17 SR (NSW) 419. (2005) 223 CLR 331 at 340, 361, 375, 384–5, 393–4, 400, 406; [2005] HCA 54. At 400.

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8.33  In Simmons v Simmons,72 the deceased had a domicile of origin in New South Wales, but migrated to New Caledonia and acquired a domicile of choice there. He died domiciled in New Caledonia, but still a British subject. There was no will, but the deceased left movable property in New South Wales. In the Supreme Court of New South Wales, Street J held that, in accordance with New South Wales choice of law rules, the question of the relevant rules of intestacy to apply was to be determined in accordance with the law of the place where the deceased was domiciled at death. This was the law of New Caledonia (France). However, the law of France remitted the question to the national law of the deceased at the time of his death. Street J also found that the law of France would reject the renvoi (and therefore the evidence showing how a court in France would deal with the problem of renvoi differed from the evidence on that point accepted in Annesley). The crucial question in Simmons was, what (as a British subject) was the deceased’s national law applicable to a question of intestacy? The law of France did not identify the particular place within the British Empire that would provide the law of the cause. Street J therefore had to place a common law gloss on the law of France. He held that:73 In applying the rule of distribution according to nationality to the case of a British subject domiciled in a country in which that rule applies, it must … be interpreted as meaning distribution according to the internal law applicable in that part of the British Empire in which the deceased had his domicile before he fixed his residence abroad.

The last place in the Empire where the deceased had been domiciled was New South Wales, which therefore provided the governing law of intestacy. However, the result was not one dictated by the law of France as the theory of double renvoi would claim it should be. It was dictated by the law of France, as adjusted by common law principles of domicile.74 8.34  The theory of double renvoi would not provide a solution to any problem of remission or transmission before an Australian court if the courts of the other place also used the theory of double renvoi. McHugh J called the result an ‘infinite regression’,75 but ‘stalemate’ is a more accurate metaphor. The forum court cannot adopt the result that would be reached by the foreign court if the foreign court will only adopt the result that would be reached by the forum court. Neither court, in the renvoi dialogue, can say what the result would be. And given that double renvoi is the predominant approach taken wherever the doctrine of renvoi is recognised in the Commonwealth, the problem is not as fantastic as it might first seem. Indeed, it becomes a real problem once the evidential rule is taken into account that, if it is not proved by one of the parties, the foreign law is presumed to be the same as the law of the forum. If, as is more common than not, neither of the parties has proved how the foreign law approaches the problem of renvoi, it must be presumed that it adopts the same approach as the law of the Australian forum does. Since Neilson, therefore, it must be presumed that the foreign law uses the doctrine of 72. 73. 74. 75.

(1917) 17 SR (NSW) 419. At 423. See also Re Johnson [1903] 1 Ch 821. Neilson v Overseas Projects Corp of Victoria Ltd (2005) 223 CLR 331 at 351; [2005] HCA 54. His Honour used language that had been applied where two countries using the doctrine of single renvoi are involved. Cf Cowan, above n 18, at 47; E N Griswold, ‘In Reply to Mr Cowan’s Views on Renvoi’ (1939) 87 University of Pennsylvania Law Review 257 at 257.

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double renvoi. McHugh J offered this as one reason why, in Neilson, renvoi should be ignored.76 It also might explain why, even in the absence of any evidence on the point, the majority was prepared to find that the Chinese choice of law rule for delicts would, unlike Australian law, ignore the renvoi. 8.35  Accordingly, the doctrine of double renvoi is only a workable approach to the problem if the foreign law-maker has been persuaded not to accept it, or if the local court itself develops an understanding of the foreign law that deems that the foreign law does not accept it. Nevertheless, despite the conceptual problems with the theory of double renvoi, the Australian Law Reform Commission concluded in the Choice of Law report that, ‘while logically hard to defend, the principle … leads to a sensible result’.77 With respect, that appears to be a conclusion that is itself logically hard to defend.

Exclusion of unacceptable laws 8.36  There are a number of cases where ‘The General Part’ of choice of law method would suggest that the law of another place is the law of the cause, but where the courts of the forum will still refuse to apply it. In some of these cases, the forum courts are bound to refuse application of the foreign law to the case. In others, it is almost as if the forum courts exercise a discretion, albeit a highly constrained one, not to apply the foreign law.

Unrecognised states 8.37  For the purposes of public international law, the Commonwealth Government has the power to recognise foreign governments or to refuse them recognition. The question can therefore arise whether the law of the cause identified by choice of law rules should be applied when it is the law of an unrecognised state. The logical answer is that the public and private international law should speak with the one voice and, therefore, that the non-recognition of a government could be a reason to refuse recognition of its laws.78 This is the approach suggested by Adams v Adams,79 albeit that the case concerned the question of the recognition of another country’s matrimonial decrees. There, an English court was asked to recognise a divorce granted in Rhodesia by Macaulay J, a judge appointed by the Rhodesian Government that had, in 1965, unilaterally declared independence from the United Kingdom. The United Kingdom did not recognise the 1965 unilateral declaration of independence, and nor would the English court recognise the decree made by Macaulay J. 8.38  As logical as Adams may seem, the approach taken in that case is inflexible. More  commonly, the courts have been prepared to recognise the laws of a state that the national government has not recognised, so long as that administration is in de

76. 77. 78. 79.

(2005) 223 CLR 331 at 353; [2005] HCA 54. Australian Law Reform Commission, Choice of Law, No 58, Canberra, AGPS, 1992, p 112. Aksionairnoye Obschestvo AM Luther v James Sagor & Co [1921] 1 KB 456. [1971] P 188.

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facto control of the relevant place.80 In Anglo-Czechoslovak Credit Bank v  Janssen,81 a bank incorporated in Czechoslovakia was dissolved by order of the occupying German authorities who had, after invading the country, taken de facto control of Czechoslovakia by belligerent occupation in 1939. However, the Czechoslovak controllers of the bank later took proceedings on a bill of exchange in the Supreme Court of Victoria. The defendant applied to have the action dismissed on the ground that (1) the bank did not exist; or (2) the action was being maintained without its authority. To accept either argument, the German decree liquidating the bank had to be recognised. However, Australia was at war with Germany and did not recognise the German administration in Czechoslovakia as the de jure government. For that reason, O’Bryan J dismissed both defences. This decision was reversed in the Full Court of the Supreme Court, where Mann CJ held that the relevant enquiry was whether the German administration was in de facto control of Czechoslovakia. Whether it was the de jure government was not important to the determination of private rights. The decree was therefore recognised and the defences succeeded. More recently, in Emin v Yeldag82 an English judge recognised a divorce made in the Turkish Republic of Northern Cyprus (TRNC). The TRNC claimed to secede from Cyprus in 1983, but this secession was not recognised by the United Kingdom and was declared illegal by a United  Nations Security Council Resolution. Although the British Government did not recognise the TRNC, it was prepared to intervene in Emin v  Yeldag to support the recognition of a divorce made under the TRNC’s authority. Sumner J was prepared to recognise the divorce on this ground.83 This exception to the policy of Adams may well be more appropriate in family law than in other areas.84

Penal laws 8.39  An Australian court will not apply the penal law of another place, even if as a result of proper use of choice of law method that law would ordinarily apply to the case. The  penal laws of another state generally concern its specific governmental interests, and are not considered suitable for enforcement in multi-state disputes between private citizens. This is reinforced by the assumption that another state’s penal laws do not, by public international law, have extraterritorial operation, whatever the state might claim. However, extraterritorial enforcement would become available for foreign penal laws if they were to be applied in the forum as part of the law of the cause. 8.40  Evidently, a penal law includes one that requires the imposition of a criminal sanction, like imprisonment or a fine. But, in private international law the concept is much broader. Indeed, it must be if the indirect enforcement of penal laws through private litigation is to 80. 81. 82. 83.

84.

Upright v  Mercury Business Machines 231 NYS 2d 417 (1961); Hesperides Hotels Ltd v  Aegean Turkish Holidays Ltd [1977] 3 WLR 656 at 665–6. [1943] VLR 185. [2002] 1 FLR 956. Sumner J also recognised the decree on the basis that ‘the Republic of Cyprus is one country but with two territories, each with their own system of law’: at [77]. This is doubtful, as it assumes official recognition of Cyprus as something like a federal state, which the United Kingdom does not concede: Y Ronen, ‘Recognition of Divorce Without Recognition of Statehood’ [2004] Cambridge Law Journal 268 at 270–1. Ronen, above n 83, at 270; cf Texas v White 19 L Ed 277 at 240 (1868).

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8.42

be avoided. For these purposes, the most authoritative definition of a penal law was that stated by Lord Watson in Huntington v Attrill:85 … no 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 by the lex fori, ought to be admitted in the courts of any other country.

The two elements that must be present for a law to be classified as penal are therefore, first, that the object of enforcing the law is the imposition of a penalty of some kind; and, second, that the penalty is being recovered ‘at the instance of the State or of an official … or of a member of the public in the character of a common informer’.86 8.41  The Huntington test established that a private claim on a bond brought in England by the United States Government to ensure that the defendant appeared in criminal proceedings was an attempt by a foreign government to enforce a penal law.87 It has also led to the rule that a prohibition on the guilty party to a divorce from remarrying should be classified as penal.88 In Banco de Vizcaya v Don Alfonso de Borbon y Austria,89 a law of confiscation was held to be penal. Securities owned by King Alfonso XIII of Spain were held at the Westminster Bank in London, but to the order of the Banco de Vizcaya. In 1931, King Alfonso was expelled from Spain and all Spanish banks were directed (without compensating the King) to deliver any of the King’s property in their possession to the Spanish Treasury. In 1932, both the King and the Banco de Vizcaya claimed the securities from Westminster Bank. Lawrence J found for the King, as the Banco de Vizcaya was obliged to deliver the securities to the Spanish Treasury. This would, directly or indirectly, involve the enforcement of laws expropriating property from the King, and thus would amount to the enforcement of a foreign penal law. 8.42  The status of foreign laws and judgments on punitive damages has recently divided Australian courts. In Schnabel v  Lui90 Bergin J of the Supreme Court of New South Wales refused to enforce part of a United States judgment which was for punitive damages. The court noted that the purpose of the award of such damages was to punish the defendant for its wilful non-compliance with the foreign court’s orders and so enforcement of the award by an Australian court would involve it enforcing a foreign penal law. It was implicit in the court’s decision that all punitive damages awards and laws would be unenforceable. The court nevertheless found that the compensatory part of the damages award could be severed from the punitive component and enforced. The Schnabel case was, however, distinguished by the Full Court of the Supreme Court of South Australia in Benefit Strategies Group Inc v Prider91 which suggested (obiter) that a punitive damages award would only be unenforceable where it involved a ‘public’ element rather than a vindication of private rights. In Schnabel, the public element was manifested in the fact that the defendant was punished 85. 86. 87. 88. 89. 90. 91.

[1893] AC 150 at 156. At 158. United States of America v Inkley [1989] 1 QB 255. In the Marriage of Mustafa (1981) 7 Fam LR 711. [1935] 1 KB 140. [2002] NSWSC 15. (2005) 91 SASR 544 at 552; [2005] SASC 194.

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for breaching its duty to the court. By contrast, where an award of punitive damages was made to punish the defendant’s deliberate and callous disregard of the plaintiff ’s rights enforcement was permissible. 8.43 The Benefit Strategies decision was recently applied by the Supreme Court of New  South Wales  in Surgibit IP Holdings Pty Ltd v  Ellis (No 2)92 and by the Supreme Court of Victoria in Doe v  Howard.93 In Surgibit, a judgment for treble damages was enforced where the basis of the award was not a lack of respect for the court or a failure to comply with court orders but the defendant’s ‘wilful’ breach of the plaintiff ’s patents. In Doe v Howard an award of punitive damages was similarly enforced where the defendant had engaged in ‘intentional and egregious conduct’ towards the claimant. J Forrest J went further, declaring that all awards of punitive damages in civil suits between private parties are enforceable, including sanctions for non-compliance with court orders.94 Only sums payable to a state by way of punishment are penal.95 The distinction between foreign laws providing for compensation and involving the enforcement of private law rights as opposed to laws involving the vindication of governmental interests is discussed at 8.55.

Revenue laws 8.44  For similar reasons to their refusal to enforce the penal laws of another place, Australian courts will not enforce the revenue law of another place. Like penal laws, revenue laws implement important governmental interests and policies. Further, the power to recover taxes can be considered a corollary of the power to levy them in the first place. As there is little question that the legislature of a foreign state cannot effectively impose taxes on persons or things outside its borders, it follows that its government cannot generally recover taxes from people and corporations outside its borders. The choice of law rules in the forum cannot therefore give extraterritorial operation to another place’s revenue laws by identifying them as part of the law of the cause. 8.45  The law prohibits both the direct and indirect enforcement of another state’s revenue laws.96 Thus, it is clear that the government of another place cannot bring proceedings in the forum for the recovery of a taxation debt. For this reason, in Government of India v Taylor97 the House of Lords allowed the liquidator of an English company to reject a proof of debt that the Indian Government claimed to have arisen as a result of the company’s taxation liabilities. Accordingly, those managing personal or corporate insolvencies can ignore the insolvent’s taxation liabilities to the governments of other states when that is the [2017] NSWSC 1379. [2015] VSC 75. At [170]. On this point, the court endorsed the view of Lord Denning MR in SA Consortium General Textiles v Sun and Sand Agencies Ltd [1978] QB 279 at 299–300. 96. Peter Buchanan Ltd v McVey [1954] IR 89; QRS 1 ApS v Frandsen [1999] 1 WLR 2169; P St J Smart, ‘The Rule Against Foreign Revenue Laws’ (2000) 116 Law Quarterly Review 360. Note, however, that on 1 December 2012 the OECD Convention on Mutual Administrative Assistance in Tax Matters entered into force in Australia. Under the Convention the Commissioner of Taxation is obliged to provide administrative assistance in the recovery of foreign tax debts by parties to the Convention. 97. [1955] AC 491; Smart, above n 96, at 363. 92. 93. 94. 95.

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8.48

sole purpose of the claim. The rule does not apply where, alongside a foreign government claiming a tax debt, creditors are also proving private (that is, non-taxation) debts to the trustee-in-bankruptcy or liquidator.98 The principle is, however, extended to prohibit less direct claims for the recovery of foreign revenue. 8.46  The application to the Supreme Court of New South Wales in Bath v British and Malayan Trustees Ltd99 was for the attorney of a Singaporean executor to be granted letters of administration, to enable it to deal with property the deceased had left in New South Wales. The deceased had died domiciled in Singapore, a fact that would normally give the Singaporean executor priority in any claim to be appointed administrator of the New  South Wales  property. However, the Singaporean executor had undertaken to the court in Singapore that he would use any foreign assets that came within his control to pay outstanding Singaporean probate duties. That being so, the granting of letters of administration to the Singaporean executor’s attorney would indirectly expose New South Wales property to the satisfaction of Singaporean taxes. The appointment would indirectly enforce another state’s revenue law, and so Helsham J refused to make it. 8.47  As has been seen, this exclusionary rule for choice of law method is paralleled by the rule that a foreign judgment will not be recognised or enforced if this would give effect to a foreign revenue law.100 Government of India v Taylor101 itself is actually a case of a refusal to recognise a foreign judgment debt. The position is different, however, where a plaintiff has paid tax to a foreign revenue authority and then seeks to recover such tax in a civil suit against a private party for contract or unjust enrichment. In such a situation the plaintiff is seeking to enforce private rights, not foreign revenue laws.102 However, it has also been seen that any taxation judgment made by a New Zealand court and any income tax judgment made by a Papua New Guinea court is enforceable by registration in Australia.103 It does not follow that New Zealand or Papua New Guinea revenue laws will be applied by an Australian court if picked up for application by the Australian choice of law rule. In these cases, the exclusionary rule would still seem applicable. If the Government of New Zealand  or of Papua New Guinea needs to enforce its revenue law against an Australian interest, it must therefore obtain judgment in its own country, and secure extension in Australia by taking advantage of the Australian rules for the enforcement of their revenue judgments.

Expropriation laws 8.48  Laws of other places that expropriate property from a person can qualify for application if selected by choice of law rules as part of the law of the cause. However, this will depend on the type of expropriation involved. Expropriation laws include: • laws of requisition, by which the person’s property is used by government for a limited period but in exchange for compensation; 98. 99. 100. 101. 102. 103.

Ayres v Evans (1981) 56 FLR 235. (1969) 90 WN (NSW) (Pt 1) 44. See 5.36. [1955] AC 491; see also 8.45 and Jamieson v Commissioner for Internal Revenue [2007] NSWSC 324. Re CJ CGV Co Ltd (2013) 281 FLR 390; [2013] VSC 656. See 5.67 and 5.77.

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• laws of nationalisation, by which the person’s property is acquired by government for its permanent use but in exchange for compensation; and • laws of confiscation, by which property is requisitioned or nationalised, but with the difference that the taking is without compensation. In the past, expropriation laws of any kind could qualify for application under normal choice of law rules. This was even when they were confiscatory. However, recent adjudication in England has placed a blanket prohibition on the application, in England, of a foreign nationalisation law that purports to have effect in the forum — regardless of whether it was confiscatory or not. Any of these kinds of laws might also be refused application in the forum if they can also be classified as penal.

Laws of nationalisation 8.49  Foreign laws nationalising property have, at times, been given effect in the forum by being applied in choice of law cases. The leading case in this respect was Lorentzen v  Lydden & Co Ltd,104 which involved a Norwegian decree made on the cusp of the German invasion of Norway in 1940. An emergency measure, the decree requisitioned all Norwegian ships that were outside German occupied territory — whether that was in Norway or anywhere else. It vested the ships, and any existing claims relating to them, in a curator. The curator claimed in the English courts to be entitled to a debt for an English charterer’s loss of a Norwegian ship, which sunk before the decree was made. Despite the defendants’ objections that the debt was located in England and that English law would not recognise that the debt was transferred to the curator, the curator was held to be entitled to succeed. Atkinson J held that the dictates of ‘policy’ suggested that the English court should give effect to the Norwegian decree. Plainly, the policy in question was the common engagement of the United Kingdom and Norway as allies ‘in a desperate war for their existence’.105 However, there are two curious points about Lorentzen v  Lydden. The  first is that the choice of law rule applicable to the transfer of the debt required its validity to be determined by English law, not Norwegian law. ‘Public policy’ — namely, support for the Norwegian Government-in-Exile — was used to direct that the law of Norway, which would not usually have been selected by the choice of law rule, should nevertheless be applied. The second is that effect was given to a nationalising requisition. The decision was best relegated to the ‘wartime cases’ category, and not followed.106 Earlier cases had already shown a marked disinclination to give effect to nationalisation measures.107 8.50  Both aspects of Lorentzen v  Lydden were raised to defend the claims made in England in Peer International Corp v  Termidor Music Publishers Ltd.108 The claimant alleged that it held  copyright in Cuban musical works through licensing agreements it made between 1930 and 1950. After the Cuban Revolution of 1960, Cuban Law 860 required all licensing agreements made before the Revolution to be submitted for 104. [1942] 2 KB 202. 105. At 215. 106. Bank voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248; cf O/Y Wasa SS Co Ltd v Newspaper Pulp and Wood Export Ltd (1949) 82 Lloyd’s L Rep 936. 107. The Jupiter (No 3) [1927] P 122; The El Condado (1939) 63 Lloyd’s L Rep 330. 108. [2004] 2 WLR 849.

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approval by a government board. If neither presented nor approved, the rights established under those agreements were forfeited, and the authors could enter new agreements. The defendant companies made agreements with authors after Law 860 came into force, and claimed the English copyright in the music under its authority. Relying on Lorentzen v  Lydden, the defendants argued that Law 860 was, regardless of the confiscation it made, capable of application in England. Further, although the law of the place where the property was situate would normally govern a copyright claim, and this copyright was English, the defendants argued that Law 860 was designed to correct a contractual imbalance between authors and publishers and, therefore, ‘was entirely consonant with English and international concepts of public policy’.109 As in Lorentzen v Lydden, public policy could be invoked to secure the application of a law that otherwise would not be applicable.110 These arguments were emphatically rejected, and Lorentzen v  Lydden was overruled on the ground that it was wrongly decided.111 In the English Court of Appeal, Aldous LJ (with whom Mance and Latham LJJ agreed)112 held that Cuban Law 860 was confiscatory. It removed the claimant’s copyright without compensation.113 It also claimed to have extraterritorial effect, in determining rights to property in England. An English court would not give effect to a foreign decree confiscating English property.114 Even if Cuban law was compatible with English public policy, it could not be used as ‘a sword’ to direct what the law of the cause would be. There is, as Mance LJ said, ‘little basis for elevating public policy to a positive connecting factor overriding the law of the situs [which is normally the law of the cause in property cases] … It would create confusion and uncertainty to do so’.115 For laws of nationalisation, Peer International settles that these will not be enforced, whether confiscatory or not, if affecting property in the forum.116

Laws of confiscation 8.51  In Aksionairnoye Obschestvo AM Luther v  James Sagor & Co,117 the early Soviet Government had, in 1918, confiscated Russian timber products from the plaintiffs, and in  1919 took possession of them. In 1920, these were sold to the English defendants. However, after the timber was imported into England the plaintiffs sought a declaration that the timber belonged to them. This was rejected in the English Court of Appeal, which held that the confiscation was a legally valid act on the part of the administration that was in de facto control of Russia. The reasoning in Luther’s case, nevertheless, does suggest that, if the other place’s government has not actually brought the property under its control,

At 855. At 855–8. At 858. At 868–9, 870. At 867. At 863–5. At 870. D Osborne, ‘Foreign Law and Property in England’ [2004] Cambridge Law Journal 567 at 567–8; K Mok, ‘Foreign Act of State and Public Policy Exceptions: Peer International Corp v  Termidor Music Publishers Limited’ (2005) 27 Sydney Law Review 167 at 177–8. 117. [1921] 3 KB 532 approved in Belhaj v Straw [2017] AC 964 at [35] (Lord Mance); [126] (Lords Neuberger and Wilson); [174] (Lady Hale and Lord Clarke); and [214] (Lords Sumption and Hughes). 109. 110. 111. 112. 113. 114. 115. 116.

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the expropriation may not be recognised in the forum as effective.118 However, an effective expropriation may not be recognised when it can be classified as penal. Banco de Vizcaya v Don Alfonso de Borbon y Austria119 is an example where a Spanish confiscatory law was considered penal, because the confiscation of Alfonso XIII’s property was made precisely because he had been King of Spain.120 To an extent this has meant that expropriation laws directed at one person only have been considered penal, as it is easier to interpret these laws as being intended to punish the person concerned than as being incidents of some broader government policy.121 Similar considerations might apply to expropriations directed at small groups of people.122 The removal of copyright, without compensation, was considered confiscatory in Peer International Corp v Termidor Music Publishers Ltd.123

Foreign governmental interests 8.52  The possibility of a broader approach to laws considered unacceptable for enforcement in the forum (even though selected as part of the law of the cause) was also explored by Lord Denning MR in Attorney-General of New Zealand  v  Ortiz.124 That case was an attempt by the New Zealand  Government to recover a Maori carving that had been removed from New  Zealand  in breach of that country’s Historic Articles Act  1962. The carving had been bought by the defendant in New York but brought to England. The  New  Zealand  Government’s claim failed, eventually because the House of Lords ruled  that, within the terms of the New Zealand  statute itself, the carving had not been forfeited to the government. However, in the Court of Appeal Lord Denning MR held that an English court would not enforce the ‘other public laws’ of another country.125 These were eiusdem generis with penal and revenue laws and were laws that are an attempted exercise by a government of its sovereign authority over property outside its borders or over persons outside its borders who were not its subjects. Private international law would not allow a government to exercise its sovereign power beyond the limits of its authority. Since it was an ‘other public law’, the New Zealand Historic Articles Act was not enforceable in England. 8.53  Lord Denning’s approach in Ortiz was singular but was later accepted by a majority in the English Court of Appeal.126 It was considered in Australia in Attorney-General for the United Kingdom v  Heinemann Publishers Australia Pty Ltd127 (the Spycatcher case), where the British Government attempted to restrain the publication in New South Wales of a book called Spycatcher. The author, Peter Wright, had been a British MI5 agent, and in the book recounted illegal activities on the part of the secret service organisation. Attorney-General of New Zealand v Ortiz [1984] AC 1 at 20. [1935] 1 KB 140. See 8.41. Folliott v Ogden (1789) 1 H Bl 123; 126 ER 75; Re Claim by Helbert Wagg & Co [1956] Ch 323 at 346. Re Claim by Helbert Wagg & Co [1956] Ch 323 at 345. [2004] 2 WLR 849. [1984] AC 1. At 20–4. United States of America v Inkley [1989] 1 QB 255 at 265; see also Attorney-General for the United Kingdom v Wellington Newspapers Ltd [1988] 1 NZLR 129. 127. (1987) 10 NSWLR 86; (1988) 165 CLR 30. 118. 119. 120. 121. 122. 123. 124. 125. 126.

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The British Government claimed that this was in breach of Wright’s obligations under the Official Secrets Act 1911 (UK), as well as his employment as a Crown servant and an equitable duty of confidence, and sought an injunction to restrain publication. Further, the Commonwealth Government supported the British Government’s claim. The claim failed, both in the New South Wales courts and the High Court of Australia. 8.54  In the New South Wales  Court of Appeal, the ‘other public laws’ exclusion was accepted by Street CJ and Kirby P. However, Street CJ thought that this did not prevent the British Government’s claim from succeeding as it was supported by the Commonwealth Government.128 The local sovereign could allow a foreign sovereign to enforce its laws in the forum. Kirby P held that the British Government was attempting to enforce an ‘other public law’: that is, the public law of secret service confidentiality imposed by the Official Secrets Act, Crown prerogative and equitable principle.129 For this reason, the claim had to be rejected. McHugh JA did not accept that there was an ‘other public law’ exclusion, but also rejected the British Government’s claim. The ‘other public law’ exclusion nevertheless influenced the High Court’s reasons for also rejecting the claim, but the majority formulated the principle differently and with more precision. Mason CJ and Wilson, Deane, Dawson, Toohey and Gaudron JJ thought that the expression ‘public law’ had no accepted meaning in the common law, and considered that the object Lord Denning had in mind in Ortiz was more accurately defined as ‘public interests’ or ‘governmental interests’.130 These were ‘claims enforcing the interests of a foreign sovereign which arise from certain powers peculiar to government’.131 In Spycatcher, the British Government was trying to enforce an obligation of confidentiality owed by a member of its secret service — a matter peculiar to the government’s interests in its own national security. It was inappropriate for Australian courts to adjudge matters relevant to the internal security of another country. It could also be detrimental to Australia’s own national interests and its relations with other countries were the courts to do so. Consequently, it was better not to deal with these cases at all. Spycatcher therefore established that it is not the classification of a law as ‘public’ that denies its application. It is the object of the proceeding as a pursuit of a foreign governmental interest that prevents enforcement of the law, whether it would ordinarily be considered public or private. 8.55  The issue of foreign governmental interests has arisen in a series of cases in which foreign regulatory authorities have sought orders in Australian and English courts. The  leading Australian decision is Evans v  European Bank Ltd,132 in which a receiver appointed by the United States Federal Trade Commission was held entitled to sue in New  South Wales  to recover the proceeds of a credit card fraud. The proceedings were held not to involve the enforcement of a foreign governmental interest because their object was to compensate aggrieved individuals who had suffered loss due to the fraud rather than to punish the wrongdoers. This conclusion was reached even though the claimant was a governmental entity and the fact that some of the funds may not have been able 128. 129. 130. 131. 132.

(1987) 10 NSWLR 86 at 119–22. At 136–43. Attorney-General for the United Kingdom v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 42. At 42. (2004) 61 NSWLR 75; [2004] NSWCA 82.

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to be distributed to the victims but would remain with the United States Government as a surplus. The key point was that the predominant destination of the funds showed that the purpose of the proceedings was compensatory. An earlier decision of the High Court of England and Wales in Schemmer v  Property Resources Ltd133 was distinguished by the court in Evans. Schemmer involved an action in England by a receiver appointed by the United States Securities and Exchange Commission to freeze and take possession of certain funds held in banks in England belonging to persons who had committed acts of fraud in the United States. The court in Schemmer held that the action could not proceed because the purpose of the proceeding was to place the funds in the foreign government’s possession to prevent the commission or continuation of breaches of United States regulatory laws. By contrast, in Evans the receiver’s objective was to acquire funds for a predominantly compensatory purpose. Note that Evans was approved and applied by the English Court of Appeal on similar facts in United States Securities and Exchange Commission v Manterfield.134 8.56  The foreign governmental interests doctrine was also referred to with approval by the English Court of Appeal in Islamic Republic of Iran v Barakat Galleries Ltd,135 although again not found to be applicable on the facts. Barakat involved an action by the Iranian Government seeking the return of antiquities held by a gallery in London. Iran was held entitled to recover the antiquities based on provisions of its own law which conferred upon the state rights of ownership over the articles even though they had not come into the state’s possession. The claim was therefore admissible as it involved the assertion of rights of ownership, not an attempt to enforce export restrictions.136

Public policy 8.57  The courts of the forum will not enforce the law of another place where to do so is contrary to the public policy of the forum. This is the most unpredictable ground for identifying an unacceptable law, as there is no agreed method for defining the ‘public policy’ of the forum. There is, nevertheless, increasing support for the view that public policy in international cases should be conceived in more limited terms than it is in domestic law.137 Nor is there agreement on the sources that can be used to identify public policy. So, while the doctrine of public policy gives courts the necessary power to refuse application of the residue of unacceptable laws that are neither penal, revenue nor implementing foreign governmental interests, public policy was rightly described as ‘a very unruly horse and when once astride it you never know where it will carry you’.138 Having said that, Carter has suggested that the public policy exclusion is invoked in three different situations:139

[1975] Ch 273. [2009] EWCA Civ 27. [2009] QB 22 at [125]. For another case in which the doctrine was recognised but not found to be applicable on the facts, see JSC BTA Bank v Ablyazov [2011] EWHC 202 (Comm). 137. Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] 3 All ER 209 at 238. 138. Richardson v Mellish (1824) 2 Bing 229 at 252; 130 ER 294 at 303. 139. P B Carter, ‘The Role of Public Policy in English Private International Law’ (1993) 42 International and Comparative Law Quarterly 1. 133. 134. 135. 136.

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• where to enforce the law of another place is seriously detrimental to the interests of the forum; • where to enforce the law of another place would cause injustice in the circumstances of the particular case; and • where the content of the law of another place is unacceptable. Public policy has also been used more recently as a platform for recognising that a foreign law that is in violation of the standards of public international law may not be applied in the forum court. 8.58  It should nevertheless be noted that it is rare that a court invokes the public policy exclusion. Indeed, although there are numerous English examples there are very few reported cases in Australia of a court having done so.140 That this is an exception to the result normally dictated by use of choice of law method reinforces that the public policy exclusion is not merely invoked because the law of the other place differs from the law of the forum.141 Moreover, where a foreign judgment was rendered in circumstances that would sustain a cause of action under Australian law, it is ‘inconceivable’ that the judgment would be contrary to Australian public policy.142 In the context of foreign judgments, Australian courts have made statements about the scope of the public policy exclusion which would apply equally to the situation where foreign law is sought to be excluded. In the view of these courts, the public policy defence must be narrowly construed and only available where a fundamental question of moral and ethical policy, fairness of procedure or illegality is involved,143 or where there is ‘substantial injustice, either because … of a repugnant foreign law or a repugnant application of the law in a particular case’.144 A narrow approach to public policy is justified by the need to respect and recognise other sovereign states’ laws and institutions.145 8.59  Further, the public policy of the forum can only be invoked as a reason for refusing to apply a foreign law. Consequently, in most cases the law of the forum is applied by default.146 In the wartime case of Lorentzen v  Lydden & Co Ltd,147 Atkinson J applied the law of Norway, by which property — a chose in action — was requisitioned, on the basis that public policy indicated that support should be given to the Norwegian Government.148 However, this was held to be ‘wrongly decided’ in Peer International Corp v Termidor Music Publishers Ltd,149 where the English Court 140. See In the Marriage of El Oueik (1977) 29 FLR 171. 141. Addison v  Brown [1954] 1 WLR 779; Attorney-General for the United Kingdom v  Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 49; Kok v  Resorts World at Sentosa Pte Ltd [2017] WASCA 150 at [22]–[23]. 142. Kok v Resorts World at Sentosa Pte Ltd [2017] WASCA 150 at [23]. 143. Stern v National Australia Bank [1999] FCA 1421 at [143]; De Santis v Russo (2001) 27 Fam LR 414; [2001] QSC 065 at [22]. 144. Jenton Overseas Investment Pte Ltd v Townsing (2008) 221 FLR 398; [2008] VSC 470 at [22]. 145. Jenton Overseas Investment Pte Ltd v Townsing (2008) 221 FLR 398; [2008] VSC 470 at [22]. See also Ross v Ross [2010] NZCA 447. 146. Cf 8.60. 147. [1942] 2 KB 202. 148. At 215–16. 149. [2004] 2 WLR 849 at 858; see also 8.49–8.50.

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of Appeal conclusively determined that public policy could not be used in a positive fashion to displace the normally applicable law of the cause. 8.60  The usual effect of proving that a foreign law offends the public policy of the forum is that the foreign law does not apply at all, and the forum law applies by default. There is an alternative approach, however, as suggested by the House of Lords’ technique in Kuwait Airways Corp v Iraqi Airways Co (Nos 4 & 5).150 The circumstances of this case are outlined in more detail below151 but the choice of law rule applicable to the claim brought in the English courts required some reference to the law of the place where the tort allegedly occurred — Iraq. An Iraqi decree — Resolution 369 — expropriated aircraft from the plaintiff, and therefore overrode the normal effect of Iraq’s own law of usurpation (which was akin to the common law tort of conversion). The majority in the House of Lords (Lords Nicholls, Steyn, Hoffmann and Hope; Lord Scott dissenting) held that Resolution 369 offended public international law and English public policy, and therefore would not be applied. However, the majority did not then conclude that Iraqi law was inapplicable, but that the Iraqi law of usurpation, without the overlay of the confiscatory decree, was still to govern the claim.152 Lord Nicholls of Birkenhead noted the argument that this was applying as the law of Iraq a law that, at the time in question, Iraq itself did not have. However, without directly addressing the question why the whole of the internal law of Iraq could then be discounted and English law alone applied, his Lordship believed it would be a ‘bizarre conclusion’ to recognise the confiscatory decree.153 The result is that public policy was used as a ‘blue pencil’ for the law of the cause, which remains generally applicable, but without those aspects of it that alone offended public international law.154 Why this was necessary is unclear. The English court was not applying the law of the place of the wrong but its own modification of that law. There was no reason why, given the traditional approach to the public policy exclusion, the whole of the law of the place of the tort should not be ‘disapplied’. It would still have vindicated the plaintiff ’s claim.155

Seriously detrimental to forum interests 8.61  The public policy of the forum will necessarily require a court to refuse to enforce the law of another place where to do so would be seriously detrimental to the interests of the forum. This ground for invoking the public policy exception has obviously become less relevant since, in Spycatcher, the High Court formulated the prohibition on courts enforcing foreign governmental interests.156 Indeed, in the Spycatcher case, Brennan J’s judgment dealt with the question of the enforceability of the British Government’s claim in terms of the public policy of New South Wales, concluding that public policy demanded [2002] 3 All ER 209. See 8.67–8.68. At 223, 241, 248–52. At 220. See also R D Leslie, ‘The Relevance of Public Policy in Legal Issues Involving Other Countries and Their Laws’ [1995] Juridical Review 477 at 479. 155. J M Carruthers and E B Crawford, ‘Kuwait Airways Corp v Iraqi Airways Co’ (2003) 52 International and Comparative Law Quarterly 761 at 772. 156. See 8.53–8.54. 150. 151. 152. 153. 154.

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that the courts of the forum never enforce claims made by a foreign government for the protection of its national security. The reason is that the forum court has no real capability of assessing whether enforcement of the other country’s laws would be detrimental to the interests of the forum. It would have to take evidence from the Commonwealth Government on the compatibility or otherwise with Australia’s interests of the other place’s particular security interests relevant to the case. Of course, to disclose the Commonwealth Government’s assessment of that question could be embarrassing to the government, and it is simply better policy not to entertain any claims brought by foreign governments in pursuit of their interests.157 Nevertheless, the approach taken by the majority did not rest on the public policy exclusion.158 8.62  This ground has been extended to protect the interests of places friendly to the forum. It will be more difficult to assess when this should occur. Brennan J’s judgment in Spycatcher159 points out the inadequate machinery that courts have to make these assessments, and the problems that arise where the courts might require evidence from the executive government on the point. However, in Foster v Driscoll160 the English Court of Appeal was not prepared to enforce a contract made to avoid the alcohol prohibition laws of the United States. Similarly, in Regazzoni v KC Sethia (1944) Ltd161 the English courts refused to enforce a contract made in violation of Indian customs law.

Injustice in the circumstances of the case 8.63  There are a number of cases where the court has refused to apply the law of another place because it would cause injustice in the particular circumstances of the case. This ground has been prominent in cases raising the recognition of matrimonial decrees.162 In Re Meyer,163 a decree of divorce obtained by a wife from her Jewish husband in Germany in 1939 was not recognised in England on the ground of public  policy. The divorce had been obtained after the Gestapo had applied pressure on the wife, and to recognise the divorce as effective would have denied her rights to a widow’s pension. However, in Igra v Igra164 a divorce obtained in analogous circumstances was recognised in England because — among other things — the husband had remarried. To refuse to recognise the decree in Igra would have caused hardship to an innocent third party, the second wife. A comparison of Meyer and Igra shows that the overriding consideration in both cases was a just result for the parties, which on one occasion (but not the other) required the court in England to refuse recognition of a divorce on the ground of public policy.

157. Attorney-General for the United Kingdom v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 50–1; cf S McAnally, ‘Enforceability of Foreign Laws’ [2002] New Zealand Law Journal 223. 158. See 8.54. 159. See 8.61. 160. [1929] 1 KB 470. 161. [1958] AC 301; see also H v S [2015] NZHC 310. 162. See Gray v Formosa [1963] P 259. 163. [1971] P 298. 164. [1951] P 404.

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Foreign law is morally unacceptable 8.64  Another ground on which public policy has been invoked arises where the content of the law of the other place is unacceptable to the policies or moral standards of the forum. There is some authority suggesting that it is not the formal content of the foreign law that is relevant, but the substantive effect that law has in the circumstances of the case.165 However, there are examples where a judge has simply refused to enforce another place’s law because it was offensive to the moral notions of the forum. The clearest instance is Oppenheimer v  Cattermole,166 in which Lord Cross of Chelsea considered that a German law of 1941 that revoked the German nationality and expropriated the property of Jews could not be recognised ‘as a law at all’ because it constituted ‘so grave an infringement of human rights’.167 More recently, in Das v George Weston Ltd,168 a Canadian court stated that a foreign law based on Shariah principles that distributed damages unequally between claimants based on their gender would be unenforceable on public policy grounds. In the older case of Kaufman v Gerson,169 the English Court of Appeal refused to enforce a contract by which the plaintiff had agreed not to prosecute the defendant’s husband in France for misappropriation of the plaintiff ’s money. The law of the cause for enforcement of the contract would normally have been French, and under the law of France the contract was valid. However, under the law of England the contract was found to be contrary to morality and unenforceable because the defendant’s consent had been procured by duress. By contrast, in Saxby v Fulton170 and Paradise Enterprises Inc v Kakavas171 enforcement of a contract for a gaming loan that was valid under its governing law did not offend forum public policy, even where such a contract would have been illegal under the law of the forum. It seems that gambling is less troubling for forum morality than breaches of human rights or duress.172

Breach of public international law 8.65  If choice of law rules would suggest application of a foreign law that is, in its own terms, in breach of the principles of public international law, the question arises as to whether the forum court should refuse to apply it. Lord Cross’s speech in Oppenheimer v Cattermole suggested that English public policy should give effect to ‘clearly established rules of international law’, a standard that has since become more important.173 An exclusion based on breach of public international law was first raised in Anglo-Iranian Oil Co Ltd v Jaffrate (The Rose Mary),174 a decision of the Supreme Court of Aden (when Aden was a British Crown Colony). The case involved an oil nationalisation law of the Persian Government, divesting without compensation all oil interests held in Persia by the Anglo-Iranian Oil Co Ltd. On the arrival in the Port of Aden of a tanker carrying oil from Anglo-Iranian’s old 165. 166. 167. 168. 169. 170. 171. 172. 173. 174.

Adams v National Bank of Greece [1961] AC 255 at 282. [1976] AC 249. At 277. [2017] ONSC 4129 at [296]–[298]. [1904] 1 KB 591. [1909] 2 KB 208. [2010] VSC 25 at [93]. See also Kok v Resorts World at Sentosa Pte Ltd [2017] WASCA 150. [1976] AC 249 at 278. [1953] 1 WLR 246.

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fields, the company claimed to be entitled to delivery of the oil to itself. This claim was upheld by Campbell J, expressly on the ground that the Persian nationalisation law was in breach of public international law.175 Accordingly, even though the property entitlements would normally be determined by Persian law as the law of the place where the property was situate, the Persian decree would not be applied. Campbell J was of the view that public international law prohibited expropriation without compensation, and on that ground the Persian law would be internationally invalid.176 8.66  The authority of The Rose Mary was doubted on the ground that Campbell J may have misconceived the relevant public international law itself, although, despite being built on slim authority, the use of public international law as an independent reason for refusing application of the usual law of the cause was welcomed.177 Sykes and Pryles nevertheless suggested that the public international law operated ‘on [a] different plane’ from the private, and could not itself usually be a reason for refusing application of the usual law of the cause. With some foresight, they suggested that The Rose Mary might be explained by making the principles of public international law part of the public policy of the forum, and that its violation by a foreign law might lead the forum court to refuse its application on the more general ground that it offended public policy.178 That principle was refined, and settled, by the English courts in Kuwait Airways Corp v Iraqi Airways Co (Nos 4 & 5).179 8.67  As the name suggests, the litigation in Kuwait Airways arose out of the Gulf War. Ten  aircraft owned by the claimant, Kuwait Airways Corporation, were seized by Iraqi forces on the invasion of Kuwait in 1990 and flown to Iraq. Afterwards, the Iraqi Government passed Resolution 369, which purported to dissolve the claimant corporation and to vest all of its property in the defendant, Iraqi Airways Company. Four of the aircraft, held at Mosul in Iraq, were later destroyed by the United Nations-sanctioned bombing of Iraq, but the other six were removed to Iran for safekeeping. They were returned to Iraq. However, Iraq had been forced to recognise its liabilities for losses it caused through the invasion of Kuwait, and in Resolution 55 it repealed Resolution 369, with retroactive effect, and recognised its obligation to return Kuwaiti property. This included the six remaining aircraft, which were returned to the claimant. However, the claimant still sued Iraqi Airways Company, which had an office in London, and the Republic of Iraq in English proceedings for the loss of the four Mosul-based aircraft, and for further losses for not having had possession of the other six. The action against the Republic itself was terminated after the House of Lords found that it had foreign state immunity.180 Naturally, there was a series of United Nations Security Council Resolutions that had condemned Iraq’s invasion of Kuwait, and that called on nation states to take all measures that were appropriate to protect Kuwaiti property.

175. At 259. 176. At 252–3. 177. D P O’Connell, ‘A Critique of the Iranian Oil Litigation’ (1955) 4 International and Comparative Law Quarterly 267 at 279–80. 178. E I Sykes and M C Pryles, Australian Private International Law, 3rd ed, Law Book Co, Sydney, 1991, p 297. 179. [2002] 3 All ER 209. 180. Kuwait Airways Corp v Iraqi Airways Co [1995] 3 All ER 694.

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8.68  The claim in Kuwait Airways181 was for the tort of conversion. The relevant English choice of law rule (which was the ‘double actionability rule’)182 required that the removal and dispossession of the aircraft had to give rise to liability in the forum (namely, England) and in the place of the tort (Iraq) if the claim in England was to succeed. Although Iraqi law had a wrong of usurpation, the claimant met the defence that, at the time of the alleged conversion, the Iraqi Airways Company’s actions were validated by Resolution 369. Among the reasons that the English Court of Appeal raised to reject the defendant’s reliance on Resolution 369 was that it was made in breach of ‘clearly established principles of international law’. This was considered an aspect of English public policy, and therefore only a ground for excluding foreign law if it did not differ from more clearly expressed domestic public policy.183 The Court of Appeal also held that Resolution 369 could not, ‘as a matter of English public policy’, be recognised, as it plainly violated Security Council Resolutions.184 This was confirmed by a majority185 on appeal to the House of Lords, which endorsed the exclusion on public policy grounds.186 Slightly more emphasis was given in the House of Lords to the courts’ duty to give effect to the United Kingdom’s obligations under public international law and the United Nations Charter.187 As Lord Hope of Craighead said: ‘It would seem therefore to be contrary to principle for our courts to give legal effect to legislative and other acts of foreign states which are in violation of international law as declared under the Charter of the United Nations.’188 In determining the case, the English courts could ignore — or excise — the internationally unlawful Resolution 369 from its understanding of Iraqi law.189 Lord Steyn was even more overtly applying public international law when he explained that Security Council Resolutions forbade the United Kingdom from even indirectly recognising the effect of Iraq’s purported annexation of Kuwait, and that not to allow the claim would be, indirectly, allowing an Iraqi company to retain the benefits of the attempt to annex Kuwait.190 Kuwait Airways both elevates the place of public international law in the municipal law of the United Kingdom and recognises that the breach need not be of a fundamental human right — like that in Oppenheimer v Cattermole191 — for a public policy exclusion to be possible.192 It must, however, be a breach of ‘clearly established principles of international law’, and a ‘flagrant’ breach at that.193 Resolution 369 certainly qualified. This has been viewed as an unsurprising outcome — indeed, it would have been

[2002] 3 All ER 209. See 18.2. Kuwait Airways Corp v Iraqi Airways Co (No 3) [2001] 1 Lloyd’s Rep 161 at 215. At 224. Lords Nicholls, Steyn, Hoffmann and Hope. Lord Scott of Foscote dissented. Kuwait Airways Corp v Iraqi Airways Co [2002] 3 All ER 209. At 219, 246–7. At 247. At 248. At 240. [1976] AC 249; see also 8.64. M Davies, ‘Kuwait Airways Corp v Iraqi Airways Co: The Effect in Private International Law of a Breach of Public International Law by a State Actor’ (2001) 2 Melbourne Journal of International Law 523 at 530. 193. Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] 3 All ER 209 at 217, 239, 240, 247, 248.

181. 182. 183. 184. 185. 186. 187. 188. 189. 190. 191. 192.

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unacceptable if the claim in Kuwait Airways had not been vindicated. The principle has not been yet been tested in Australia, although it must have a good claim to representing the position of the private international law in Australia. 194

8.69  In Belhaj v Straw,195 the UK Supreme Court recently confirmed that serious breaches of public international law may operate to bar recognition of foreign law in an English court on public policy grounds.196 The court, however, emphasised that ‘public policy’ for this purpose was domestic public policy and that while generally accepted norms of public international law are influential, not every rule of public international law automatically forms part of public policy. Typically, the cases in which public international law has had most impact have been where the conduct has been uniformly condemned by the international community, including the UN Security Council, and the violations are not disputed by the parties.197

194. Carruthers and Crawford, above n 155, at 768. 195. [2017] AC 964. 196. At [37] (Lord Mance); [153]–[155] (Lords Neuberger and Wilson); [174] (Lady Hale and Lord Clarke) and [257] (Lords Sumption and Hughes). 197. The Law Debenture Trust Corp plc v Ukraine [2017] EWHC 655 at [308].

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Chapter 9 Proof of Foreign Law The status of foreign law 9.1  It is a fundamental assumption of the common law that the content of the law of any foreign place is treated as a matter of fact, not law.1 Therefore, in general, the content of the law of a foreign place must be pleaded and proved in evidence by one of the parties before a court in Australia legally has notice of its existence. The exception to this general rule is where the ‘foreign’ place is another state or territory of Australia, in which case the content of its law need not be either pleaded or proved in evidence. In cases where the claim made is that the law of the cause is the law of a place outside Australia, the content of its law must be brought before the Australian court in the same manner as any other question of fact. The onus of proving the content of the foreign law lies on the party who claims that it differs from the law of the forum.2 This issue was considered at some length by Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ in Regie Nationale des Usines Renault SA v Zhang.3 The case is discussed in Chapter 18,4 and involved an allegation in proceedings in New South Wales that a wrong, causing personal injuries, took place in New Caledonia. Procedural aspects of the law of New Caledonia had been proved, but issues relating to liability and the distinction between claims in contract and delict had not been addressed.5 On appeal in the High Court, the majority held that, even where a claim is potentially governed by a foreign law of the cause, it is not necessary that either of the parties plead the foreign law or prove it.6 Their Honours confirmed the principle established by A V Dicey that a party who wishes to rely on foreign law ‘must allege, and, if necessary, prove it’.7 This will naturally only occur if the foreign law offers some advantage to the party in question:8 Where … the applicant … seeks to rely upon a foreign lex causae as providing an advantage, then, at a level of specificity, the applicant should advance appropriate evidence as to the foreign law and particular features of that law which provide an advantage to the applicant.

1.

2. 3. 4. 5. 6. 7. 8.

See  M Keyes, ‘Foreign Law in Australian International Litigation: Developing the Common Law’ in Y Nishitani (ed), Treatment of Foreign Law — Dynamics Towards Convergence, Springer, Cham, 2017, pp 508–9; Neilson v Overseas Projects Corporation of Victoria Limited (2005) 223 CLR 331 at 370; [2005] HCA 54; Tahiri v Minister for Immigration and Citizenship (2012) 293 ALR 526 at 532; [2012] HCA 61. King of Spain v Machado (1827) 4 Russ 225 at 239; 38 ER 790 at 795. (2002) 210 CLR 491; [2002] HCA 10. See 4.43–4.46, 18.2 and 18.4. At 500. At 518. At 519. At 519.

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These principles apply to any party to the litigation. A defendant may seek to rely on the applicable foreign law ‘as an exculpatory fact’,9 and equally must plead and prove it to do so. However, it is open to either of the parties, even in cases that could attract the application of foreign law, not to plead it and to have the matter proceed as purely domestic litigation.10 9.2  There are two implications of the status of foreign law as fact that must be proved by one of the parties. First, it is not the foreign law that is actually before the court, but the foreign law as presented and read by expert witnesses, and as adjusted by the procedural law of the forum, that is used by the forum court. As a result, it is quite possible, given different presentations of the evidence about the foreign law, that the position of the foreign law on a question might be read differently in different proceedings.11 It is one reason why a statement of the content of foreign law in a judgment should not be taken as evidence of the foreign law in subsequent proceedings.12 This makes the proof of foreign law an onerous and potentially hazardous task. As Spigelman CJ pointed out in Murakami v Wiryadi, ‘[t]he need to prove foreign law introduces additional levels of complexity, expense and uncertainty together with the risk of error in the application of the foreign law’.13 It raises significant questions for the tactics of the litigation and its expense, both of which can be powerful disincentives to proving foreign law. Second, the fact that it is open to the parties either to plead and prove, or ignore the potential application of, foreign law makes the choice of law method optional. It is only invoked if one of the litigants wants it. Multi-state cases will be dealt with as domestic cases unless one of the parties takes positive steps to invoke foreign law.14 This optional quality of choice of law was reinforced in Palmer v Turnbull,15 in which the Prime Minister was sued for defamation for comments he made about the plaintiff at a press conference in the People’s Republic of China. The plaintiff had not pleaded the Chinese law of defamation as the law of the place where the defamation was alleged to have occurred, and the Prime Minister argued that he was under an obligation to do so.16 In the Queensland Court of Appeal, Brown J (with whom Fraser and Gotterson JJA agreed) rejected that contention, and pointed out that, if the Prime Minister as defendant wished to allege that the action was not maintainable because of some requirement of Chinese law, it was his responsibility to raise a defence under Chinese law and to prove the relevant law.17 Accordingly, the general principle is that, if a party fails to plead the content of the foreign 9. 10. 11.

12. 13.

14. 15. 16. 17.

At 518. At 518, approving Walker v WA Pickles Pty Ltd [1980] 2 NSWLR 281 at 284–5. For example, in Simmons v Simmons (1917) 17 SR (NSW) 419, it was accepted (incorrectly) that, faced with a remission in a succession case, a French court would reject the renvoi. In dealing with precisely the same question in Re Annesley, Davidson v Annesley [1926] Ch 692 it was accepted (correctly) that French law would accept the renvoi: see 8.28 and 8.33. Talwar and Sarai [2018] FamCAFC 152 at [37]. (2010) 268 ALR 377 at 406; [2010] NSWCA 7. See also Kim Michael Productions Pty Ltd v Tropical Islands Management Ltd [2010] NSWSC 269 at [84]; Pocock v  Universal City Studios LLC [2012] NSWSC 1481 at [32]; Suzlon Energy Ltd v Bangad (No 3) [2012] FCA 123 at [64]. For example, Aluminium Industrie Vaassen BC v Romalpa Aluminium Ltd [1976] 1WLR 676. [2018] QCA 112. At [3]. At [29]–[30]; see  also Lazarus v  Deutsche Lufthansa AG [1985] 1 NSWLR 188; Dyno Wesfarmers Ltd v Knuckey [2003] NSWCA 375 at [24]–[25], [29]; JG Starke, ‘Pleading of the Foreign Law in an Action for Tort Allegedly Committed in a Foreign Country’ (1986) 60 Australian Law Journal 304.

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law or, having pleaded it, fails to prove it in evidence, the forum court cannot assume that the law of the foreign place is any different to the law of the forum. The more common explanation for this is that it is initially presumed that, in the absence of evidence to the contrary, the foreign law is the same as the law of the forum.18 The ‘presumption of identity’ has been described as ‘truly grotesque’,19 and allows unrealistic assumptions to be made about the content of foreign law. An alternative explanation, and easier to reconcile with the reasoning of the majority in Renault, is that, in the absence of evidence providing the content of the law of the foreign place, the law of the forum is applied by default.20

The presumption of identity 9.3  The assumption that the foreign law is the same as the law of the forum if a difference between them has not been proved has, nevertheless, been subject to serious questioning as, in some cases, that assumption might simply be untenable. In Damberg v  Damberg,21 the foreign law in question was German taxation law. In the New South Wales Court of Appeal, Heydon JA held that ‘a court will not assume that unproved provisions of foreign law are identical with those of the lex fori’.22 In Damberg, the parties had proceeded on the assumption that German and Australian taxation law were the same. The Court of Appeal was unconvinced, and did not treat the parties’ admissions to this effect as fact. Heydon JA (with whom Spigelman CJ and Sheller JA agreed) noted that there are a number of limitations on the litigants’ ability to set the factual context for the case simply by their admissions in the pleadings. The pleadings must be verified as true, and it would be ‘ethically questionable’ for a court to accept facts that were not believed to be true. Further, courts were not bound to act on the basis of the parties’ admissions. They were to decide cases according to the truth, and not an artificial statement of facts that the parties find it convenient to present.23 As a result, Heydon JA said:24 In short, the courts are averse to pronouncing judgments on hypotheses which are not correct … On the other hand, the courts will act on admissions of or agreements about matters of fact where there is no 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.

As a result, in Damberg Heydon JA did not consider that it should be assumed that German law was the same as Australian law. The conclusion was especially well adapted 18.

19. 20. 21. 22. 23. 24.

Walker v WA Pickles Pty Ltd [1980] 2 NSWLR 281 at 284–5; United States Surgical Corporation v Hospital Products International [1982] 2 NSWLR 766 at  799; Attorney-General for England and Wales v  R [2002] 2 NZLR 91 at 103; Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 518; Hislop v Paltar Petroleum Ltd (No 3) [2017] FCA 1253 at [127]–[128]; Dawn Jade Ltd v  Himanshu Girdhar Dua [2014] NSWSC 1085 at [35]; Palmer v Turnbull [2018] QCA 112 at [21], [23]. A Briggs, ‘The Meaning and Proof of Foreign Law’ [2006] Lloyd’s Maritime and Commercial Law Quarterly 1 at 4. Cf Queensland Nickel Pty Ltd (in liq) v Queensland Nickel Sales Pty Ltd [2017] QSC 305 at [15]; Magnin v Creevey [2017] NSWSC 375 at [9]. (2001) 52 NSWLR 492; [2001] NSWCA 87. At 522. At 520, citing Gramophone Co Ltd v Magazine Holder Co (1911) 28 RPC 221 at 225. At 522.

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in a case that dealt with taxation law, as it ‘cannot be assumed to be a field resting on great and broad principles likely to be part of any given legal system’.25 Damberg was followed in the Federal Court in Liaoning Zhongwang Group Co Ltd v Alfield Group Pty Ltd,26 where Gleeson J accepted that the question whether an arbitration agreement was valid was not one ‘of broad legal principle’ by which it could be reasonably assumed that Chinese and Australian law were the same. Gleeson J therefore refused to apply the presumption of identity.27 The proceedings involved the enforcement of an arbitral award, and this gave a party resisting the enforcement of the award, among other things, a defence on the ground that the arbitration agreement was invalid. As Chinese law had not been proved at all, and it could not be presumed to be identical to Australian law, the resisting party had failed to make out this defence and the award was enforced.28 9.4  While the insights of Heydon JA’s judgment in Damberg are a valuable addition to our understanding of principles of proof of foreign law, the judgment also raises questions. The threshold issue is whether choice of law rules are to be treated as optional in litigation where they might be invoked. If they are, there is nothing that necessitates foreign law being part of the ‘true’ factual background to the litigation. They may be invoked if either of the parties wishes it. However, if neither party wishes to rely on foreign law in the litigation, it is debatable that a failure to plead it can be considered unethical on the basis that the parties have not pleaded all of the facts. Second, if the court concludes that it cannot assume that the foreign law is the same as the law of the forum, how then does it become apprised of the content of the foreign law? In Liaoning Zhongwang Group,29 the failure to prove foreign law to resist the enforcement of an arbitral award was simply dealt with as a failure to make out the defence. But in other cases where either the law of the forum or of the foreign place must be applied, does the court act on judicial notice, which would be exceptional, or does it put one of the parties to the expense of proving, and the other of contesting, the content of the foreign law that neither of them wants? Even if one party had seen a potential material benefit if the foreign law were to apply in the case, that party might have chosen not to plead and prove it because the benefit from successful application of the foreign law might not outweigh the cost of mustering the expert evidence needed to prove it. In short, it seems that Heydon JA’s position in Damberg rests on the assumption that, if foreign law is not proved, it is assumed that it is the same as the law of the forum. However, we have seen that that there is an alternative view that, if foreign law is not proved, the law of the forum applies by default.30 That alternative view also seems to be most compatible with the reasoning of the majority in Renault, where it was accepted that the parties were under no duty to invoke the foreign law. If that is the case, then it might be difficult to reconcile Damberg with the High Court’s current doctrine on proof of foreign law. 9.5  The presumption of identity is not the only presumption that is available for proof of foreign law. There is a presumption that the common law of England still applies without 25. 26. 27. 28. 29. 30.

At 522. [2017] FCA 1223. At [96]. At [97], [110]. [2017] FCA 1223. See 9.2.

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modification in a former British colony, unless the contrary is proved. Although the Australian states were also British colonies, this is not presuming that the law of that other former colony is the same as the law of the Australian forum. There is therefore a question as to whether the presumption of identity or the presumption that the common law of England is applicable is to be invoked if the foreign law is not proved. The question has not been directly addressed, although there are a number of cases in which the presumption of identity has been applied even through the relevant foreign law was that of a former British colony.32 31

Presumption of identity — interpretation of foreign statutes 9.6  A further issue that arises with the presumption of identity, and another possible weakness in the presumption, is its use in the interpretation of foreign statutes. The issue arose in Neilson v  Overseas Projects Corporation of Victoria Ltd,33 where the statute was the People’s Republic of China’s General Principles of Civil Law. Article 146 of the General Principles required claims in delict to be governed by the law of the place where the delict occurred, but allowed that the law of the place of nationality or the law of the place of domicile ‘may also be applied’ if ‘both parties are nationals of the same country or domiciled in the same country’. Neilson was a claim in the Western Australian Supreme Court by a Western Australian resident against a Victorian corporation over an accident that took place in China. Australian choice of law principles would normally have the law of China (including its choice of law rules) governing the claim.34 There was, however, no evidence as to whether Art 146’s exception in favour of the law of nationality would be applied by a Chinese court in the circumstances of the case.35 The majority in the High Court (Gleeson CJ and Gummow, Hayne, Callinan and Heydon JJ) accepted that, under the presumption of identity, an  English translation of Art 146 should be interpreted in accordance with Australian (that is, forum) principles of statutory interpretation. On this basis, their Honours held that a Chinese court would apply the exception in Art 146 and, in doing so, would apply the law of Western Australia as the presumed law of the parties’ nationality.36 In effect, then, the majority presumed only a partial identity of the unproved aspects of Art 146 with the law of the forum. The text of the Chinese statute differed from Australian law. Indeed, the law of Australia recognises no exception in favour of the law of nationality or the law of domicile (or the law of anywhere else) in foreign tort claims.37 The foreign statute was interpreted as if it was a forum statute and, in particular, considerations that Australian courts would take into account when exercising a discretionary exception were invoked.38 However, the High Court did not apply Australian principles of interpretation consistently. 31. 32.

33. 34. 35. 36. 37. 38.

See 9.12. United States Surgical Corporation v  Hospital Products International [1982] 2 NSWLR 766 (Connecticut, New York); Dyno Wesfarmers Ltd v  Knuckey [2003] NSWCA 375 (Papua New Guinea); Dawn Jade Ltd v Himanshu Girdhar Dua [2014] NSWSC 1085 (Hong Kong). (2005) 223 CLR 331; [2005] HCA 54; see also 8.20–8.27. See 18.2 and 18.4. At 372, 412, 416–17. At 341, 366–7, 374, 420. See 18.4. At 341–3, 372, 412.

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For example, municipal Australian principles of nationality (which do not recognise that corporations can hold Australian citizenship) were ignored.39 There were also no Australian principles that would suggest that the law of Western Australia was the national law of a Victorian-registered corporation, and which the High Court admitted was problematic.40 The court also accepted that Art 146 would not allow the recognition of renvoi.41 But Gummow and Hayne JJ did this by presuming entirely the opposite of identity with the law of the forum. No evidence that China used the same approach to renvoi as Australia did allowed their Honours to infer that the Australian approach (that is, the theory of double renvoi) did not apply.42 9.7  The problem with the presumption of identity is that there is no principled guidance as to when the presumption is invoked. In their dissents in Neilson, McHugh and Kirby JJ held that the parties’ failure to prove the Chinese choice of law rule meant that, at that point, it could not be applied at all.43 The majority were prepared to defer application of the presumption to a later point, accepting an English translation of Art 146 and, from there, reading it, in part, as a forum statute would be read. The best that can be said about the majority’s approach is that it gives us little confidence that the ‘Chinese’ choice of law rule constructed by this process approximates how Art 146 would be applied by any Chinese court. The worst is that the majority alternated between application of the presumption of identity and failure to use it so as to construct an artificial rule that would ultimately see the internal law of the forum apply to the case.44 McHugh and Kirby JJ’s approach seems more compatible with Renault,45 and gives a more predictable point at which the foreign law’s identity with the law of the forum can be presumed. 9.8  The effect of the presumption is that, for the most part, the defendant is put in a position of having to rebut it when the foreign law that would be applicable if proven is to assist the defendant. While noting this problem,46 McComish nevertheless suggests that the need for the defendant to establish the favourable points of their case is not peculiar to multi-state litigation. Further, the more fundamental reason for this is the optional quality of choice of law rules. Therefore, a possible solution is to impose an obligation on the plaintiff to plead and prove foreign law if the factual basis of the claim could invoke choice of law principles — even if the foreign law is against the plaintiff.47 Again, McComish considers this to be ‘a disproportionate response’ because there is many a case where a choice of law rule may be potentially applicable, but where all parties concerned would prefer to litigate

39. 40. 41. 42. 43. 44.

See 10.32–10.53. At 339–40, 361, 384–5, 393–4, 400, 406. At 341–2, 343–4, 373–4, 413, 420. At 373–4; see also 8.20–8.27. At 372, 412, 416–17. R Mortensen, ‘“Troublesome and Obscure”: The Renewal of Renvoi in Australia’ (2006) 2 Journal of Private International Law 1 at 9. 45. See 9.1. 46. J McComish, ‘Pleading and Proving Foreign Law in Australia’ (2007) 31 Melbourne University Law Review 400 at 441. 47. See also A Gray, ‘Choice of Law: The Presumption in the Proof of Foreign Law’ (2008) 31 University of New South Wales Law Journal 136 at 156–7.

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on the basis that it is a purely domestic dispute. Cases like Damberg show that courts are prepared to confine the application of the presumption, and McComish implies that this may be enough.49 Davies’s solution stands mid-way between these responses. He suggests that Australian law should abandon the assumption that foreign law is to be proved as fact.50 This would allow the parties to invoke foreign law when needed, but constrain the efforts of litigants and courts alike of stitching suitable parts of Australian and foreign law together to give results that would be unknown to any of the legal systems implicated. To leave the presumption where it is at present is to maintain the possibility that distortions like those found in Neilson — which are equally deserving of being described as ‘truly grotesque’51 — will be perpetuated in Australian law. 48

Foreign law as fact and precedent 9.9 In Akai Pty Ltd v  The People’s Insurance Company Ltd,52 Toohey, Gaudron and Gummow JJ dealt with the problem that there was no evidence before the court as to how the law of England would deal with a refusal to honour a claim for insurance. They held that:53 … [t]his evidentiary hiatus is to be filled, in accordance with established principle, by treating the selection of the [law of the cause] by the English courts as determined by the common law rules of choice of law as they are understood in this country.

In effect, this meant that the court was legally required to assume that the law of England was the same as the law of Australia, although in many respects it was not. Without an appreciation of the nuances of the treatment of foreign law in choice of law cases, the method used in cases like Akai can appear to have curious results. Australian judges are often intimately acquainted with the status of the law in other Commonwealth countries, especially England. So, as in Akai, English precedent was used as persuasive authority to indicate the content of the Australian common law rules of private international law, and this precedent was taken by counsel’s submissions of law and the judges’ own legal knowledge and research. However, to the extent that those same rules of private international law might also require application of the internal law of England as a foreign law of the cause governing a multi-state case, the court is bound to feign ignorance of the law of England unless one of the parties pleads and proves it in evidence.54 In that case, counsel’s submissions on the law and judicial legal knowledge could not be used.55

48. 49. 50. 51. 52. 53. 54. 55.

McComish, above n 46, at 441. At 435–6, 442. M Davies, ‘Neilson v  Overseas Projects Corporation of Victoria Ltd: Renvoi and Presumptions About Foreign Law’ (2006) 30 Melbourne University Law Review 244 at 265–6. Cf Briggs, above n 19, at 4. (1996) 188 CLR 418. At 444. Eg Queensland Nickel Pty Ltd (in liq) v Queensland Nickel Sales Pty Ltd [2017] QSC 305 at [15]. Attorney-General for England and Wales v R [2002] 2 NZLR 91 at 103–4.

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Evidence of foreign law Expert witnesses 9.10  If, in the pleadings or at trial, one party admits the other’s allegations as to the content of the law of a foreign place, no further proof is necessary.56 But, where parties join issue on the content of the foreign law, it must be proved by expert evidence unless one of the exceptions allowing judicial notice, certification or proof by statutory procedures applies. In the general case then, the question arises as to the qualifications of an appropriate expert who can express an opinion on the content of the relevant foreign law. Here, the courts have taken a pragmatic approach. They only require the witness to be a person who, because they have general skills in the law of the relevant foreign place, is likely to know how the particular issue in dispute would be dealt with under that foreign law.57 The focus therefore is on practical expertise in the foreign law. So, a judge or lawyer practising in the relevant foreign territory is likely to be qualified.58 A professor of law from a university in the jurisdiction has been regarded as qualified.59 However, legal qualifications are not essential. Lay persons with special expertise in the particular aspect of the foreign law in question have been held qualified. These have included a Catholic bishop, on the Roman canon law of marriage;60 a retired Governor of Hong Kong, on the colony’s marriage laws;61 and a London banker with business experience in South America, on a bill of exchange issued in Chile.62 This latter case — De Beeche v South American Stores (Gath & Chaves) Ltd 63 — shows the importance of practical experience as a qualification, for the evidence of the banker was preferred to that of a Chilean lawyer of four years’ standing. Similarly, in Clyne v Federal Commissioner of Taxation (No 2)64 a Sydney barrister with experience in the formation of anstalts and trusts in Liechtenstein was held to be incompetent to give evidence on how the law of Liechtenstein treated anstalts and trusts for taxation purposes. There are, nevertheless, instances where an academic knowledge of the law of the foreign place is sufficient to qualify a person as an expert.65 For example, in Hooshmand v Ghasmezadegan,66 evidence of the Iranian law of marriage was accepted from an Australian lawyer who was born in Iran but left there when aged 10. The Family Court of Western Australia still admitted the evidence after it was found to be consistent with documentary evidence of Iranian marriage laws. Nevertheless, in Australia it would still appear that the evidence of a person with practical experience would carry more weight. The court is not bound to accept 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66.

Prowse v  European & American Steam Shipping Co, The Peerless (1860) 13 Moo PC 484; 15 ER 182; cf Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87; see also 9.3. Perlak Petroleum Maatschappij v Deen [1924] 1 KB 111 at 116. McKelvey v Meagher (1906) 4 CLR 265 at 284; Rossano v Manufacturers’ Life Insurance Company [1963] 2 QB 352 at 367; PCH Offshore Pty Ltd v Dunn (No 2) (2010) 273 ALR 167 at 176; [2010] FCA 897. Lambert Leasing Inc v QBE Insurance Australia Ltd [2012] NSWSC 953. Sussex Peerage Case (1844) 11 Cl & F 85; 8 ER 1034. Cooper-King v Cooper-King [1900] P 65. De Beeche v South American Stores Ltd [1935] AC 148. [1935] AC 148. (1981) 57 FLR 198. For example, Brailey v Rhodesia Consolidated Ltd [1910] 2 Ch 95; Wilson v Wilson [1903] P 157; cf Bristow v Sequeville (1850) 5 Exch 275; 155 ER 118. [2000] FLC 93-044.

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9.14

the evidence of an expert in the foreign law, but in the absence of its being contradicted the court should be reluctant to reject it.67

Judicial notice 9.11  In the New Zealand  case of Dymocks Franchise Systems (NSW) Pty Ltd v  Todd,68 there was argument as to whether the presiding judge could decide a question of foreign law on the basis of their own study or research. On the basis of the Evidence Act 1908 (NZ), it was held that the judge was allowed to decide the question of foreign law in the absence of other expert evidence. The case did, however, place a limitation on the judge’s ability to do so — where the state of the law in question was ‘uncertain and contentious’ then expert evidence would be preferred.69 9.12  It appears that a court can take judicial notice of the fact that a place was settled as a British colony, and that there was a reception of the common law of England. The court can presume that the common law of England still applies in that place, without modification. Naturally, the presumption can be rebutted by evidence to the contrary.70 The presumption potentially has significant practical implications in multi-state cases heard in a foreign place where statute has modified the common law, for if the laws of a foreign, but common law, jurisdiction might possibly be relevant, the forum court can presume that the unaltered common law operates in the foreign place, and therefore that the laws of the forum and the foreign place differ. In such a case, even if the parties have not pleaded and proved the foreign law, the court could invoke choice of law rules. This presumption does not apply where the ‘foreign’ place is another state or territory of Australia, as the court can also take judicial notice of its statute law. 9.13 In Saxby v  Fulton,71 judicial notice was taken of the fact that gambling was legal in Monaco. The decision has been criticised as an idiosyncratic breach of the general rule requiring proof by expert evidence. However, courts have a more general power to take judicial notice of notorious international circumstances. There would seem no reason why a fact so well known as the legality of gambling in Monaco would need special proof. The New South Wales Court of Appeal has taken judicial notice of the fact that the Federal Reporter law report series contains the decisions of the United States Circuit Courts of Appeals.72 9.14  In international child abduction cases, the court may take judicial notice of the law of a country that is party to the Hague Child Abduction Convention 1980. It may also take judicial notice of judicial and administrative decisions made in a convention country.73 67. 68. 69. 70.

71. 72. 73.

Adsteam Building Industries Pty Ltd v The Queensland Cement and Lime Co Ltd (No 4) [1985] 1 Qd R 127 at 141; Kingston Futures Pty Ltd v Waterhouse [2012] QSC 212 at [9]. [2004] 1 NZLR 289. At 309. Countess of Limerick v Earl of Limerick (1863) 4 Sw & Tr (Supp) 252 at 253; 164 ER 1512 at 1513; Dryden v Dryden (1876) 2 VLR (E) 74; Terrell v Secretary of State for the Colonies [1953] 2 QB 482 at 492; R v Ford (1913) 32 NZLR 1219 at 1225. [1909] 2 KB 208 at 211. Optus Networks Pty Ltd v Gilsan (International) Ltd [2006] NSWCA 171 at [87]. Family Law (Child Abduction Convention) Regulations 1986 (Cth) s 29(5). See 15.29–15.59.

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9.15  As New Zealand  was a settled British colony, an Australian court can by judicial notice presume that the common law of England was received in New Zealand.74 There is no express power to take judicial notice of changes to the common law of New Zealand made by common law adjudication.75 However, any Australian court may take judicial notice of any New Zealand statute, subordinate legislation, proclamation or statutory instrument, and of any United Kingdom statutes that are in force in New Zealand.76 To that extent, legislative modifications to the common law in New Zealand need not be proved by separate evidence.

Reference of a question of foreign law 9.16  In some cases, Australian judges can contact foreign judges directly to obtain information about the relevant foreign law.77 In insolvency proceedings under the UNCITRAL Model Law on Cross-border Insolvency, an Australian court can communicate directly with a foreign court, and request information from it.78 The foreign court is expected to cooperate ‘to the maximum extent possible’.79 In international child abduction cases, the Hague Judges Network provides a means of obtaining information from judges in other countries as long as the parties to the proceedings consent. Australian judges participate in the network.80 Judges have the power in abduction cases to take judicial notice of the relevant foreign laws,81 and this network facilitates the gathering of information for that purpose. Although the network is principally available for child abduction cases, the Hague Conference on Private International Law recognises that it can assist judicial cooperation under other Hague instruments. 9.17  Australia and the Republic of Korea are parties to a bilateral treaty on judicial assistance that enables courts in each country to obtain information about the other country’s laws when that would be relevant in local legal proceedings.82 For Australia, a request must be made through the Commonwealth Attorney-General’s Department to the Ministry of Court Administration in South Korea for information on the relevant Korean laws and regulations.83 9.18  In New South Wales, the Supreme Court may order that a question of foreign law or its application be determined by directing that the parties commence proceedings on the point in a relevant foreign court — but only so long as all parties agree.84 However, 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84.

See 9.12. See 9.25. See 9.25. Keyes, above n 1, p 514. Model Law Art 25(2), given effect by Cross-border Insolvency Act 2008 (Cth) s 6. See 24.19. Model Law Art 25(1). Keyes, above n 1, p 514. Family Law (Child Abduction Convention) Regulations 1986 (Cth) s 29(5). See 15.25–15.54. Treaty on Judicial Assistance in Civil and Commercial Matters between Australia and the Republic of Korea, signed 17 September 1999, [2000] ATS 5 (entered into force 16 January 2000). Australia-South Korea Treaty Art 27(1). Uniform Civil Procedure Rules 2005 (NSW) r 6.44(1); Marshall v Fleming [2014] NSWCA 64 at [24]–[27]. This procedure was pioneered by the Supreme Court of Singapore when referring a question of English law to the High Court of Justice of England and Wales: Westacre Investments Inc v The State-Owned Company

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9.19

a practical disincentive to invoking this procedure is that there is no reason to make the order unless the foreign court itself has power to make a declaration on the meaning or application of its own law, and would be prepared to do so in the circumstances of the case. If the parties are therefore to persuade the Supreme Court to make the order, it would be preferable that they already have expert evidence proving that the foreign court has power to make such a declaration, and that the foreign court is likely to do so in a case such as the one before the Supreme Court.85 9.19  To give better effect to the New South Wales rules on references to a foreign court, the Supreme Court has entered agreements with the Supreme Court of Singapore and the New York courts to enable questions of Singaporean or New York law to be referred for decision by judges in the other place.86 The Memorandum of Understanding (MOU) with the Chief Judge of New York does not state which New York court any reference from New South Wales is to be directed towards. However, in Fleming v Marshall,87 Spigelman CJ noted that, if the parties sought to use the reference procedure, a question of New York law would be determined by three appellate judges selected by the Chief Judge of New York, and the selected judges would sit as volunteer referees and not as the New York Court of Appeals.88 A reference may include: ‘(i) the identification of the precise question of foreign law to be answered; (ii) the identification of the facts or assumptions upon which the answer to the question is to be determined; [or] (iii) the identification of whether and, if so, in what respects the [other court] may depart from the facts or assumptions … or vary the question to be answered in any proceedings in the court of the other [court]’.89 The obligation on any court receiving this reference is to decide the question expeditiously.90 The courts are also encouraged to use less formal means of communication and consultation, ‘based on the principles of mutual understanding and respect’.91 Subsequently, in Marshall v Fleming92 Harrison J ordered that, in accordance with the MOU, questions of the law of New York should be referred to a member of the New York panel. The Court of Appeal allowed an appeal against this order on the ground that the MOU provided for a referral from the Chief Justice of New South Wales to the Chief Judge of New York, and the correct procedure had not been followed. A referral under the MOU also required the cooperation of the parties

85. 86.

87. 88. 89. 90. 91. 92.

Yugoimport SDPR [2009] 2 SLR 166; Westacre Investments Inc v  The State-Owned Company Yugoimport SDPR [2008] EWHC 801 (Comm); see also JJ Spigelman, ‘Proof of Foreign Law by Reference to the Foreign Court’ (2011) 127 Law Quarterly Review 208. In which case the parties are likely already to have expert evidence on the foreign law. Memorandum of Understanding between the Supreme Court of Singapore and the Supreme Court of New South Wales on References to Questions of Foreign Law (signed 14 September 2010); Memorandum of Understanding between the Chief Justice of New South Wales and the Chief Judge of the State of New York on References of Questions of Law (signed 20 December 2010). (2011) 279 ALR 737; [2011] NSWCA 86. At 740. See Singapore and New South Wales Memorandum of Understanding Art 2; New York and New South Wales Memorandum of Understanding Art 2. See Singapore and New South Wales Memorandum of Understanding Art 3; New York and New South Wales Memorandum of Understanding Art 3. See Singapore and New South Wales Memorandum of Understanding Art 4; New York and New South Wales Memorandum of Understanding Art 4. [2013] NSWSC 566.

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in identifying the questions of law to be decided, and agreeing to be bound by the panel’s decision. This cooperation had not been forthcoming in Marshall v Fleming.93 9.20 In Leighton International Ltd v Hodge,94 Bergin CJ in Eq considered that she could refer a question of Malaysian or Indonesian law to the Malaysian or Indonesian courts, and cited Spigelman CJ’s comments in Fleming v Marshall. It would nevertheless appear that, in the absence of a Memorandum of Understanding between the relevant courts, a reference like this would meet the procedural limitations mentioned earlier,95 and could not be made safely without the parties already having good evidence on Malaysian or Indonesian law and on the jurisdiction of the relevant courts. There is reciprocity in these rules, in that the Supreme Court of New South Wales also has power to make a declaration on an issue of Australian law (over which it would have jurisdiction) that is before a foreign court.96 9.21  Under the New South Wales rules, the Supreme Court may also refer a question of foreign law to be answered by a referee.97 This requires the precise question of law to be determined by the referee to be identified before the referral is made.98 9.22  The Federal Court and the Supreme Courts of New South Wales, the Northern Territory, Queensland, South Australia, Victoria and Western Australia have a general power to refer any question arising in a proceeding before the court to a referee to investigate the question and give the court a report on it.99 The Supreme Courts of the Australian Capital Territory and Tasmania have similar powers to refer any part of a proceeding for neutral evaluation.100 In the Federal Court in Kadam v MiiResorts Group 1 Pty Ltd (No 4),101 Lee J used this general power to appoint a referee to resolve questions concerning the law of India. Each party had obtained a detailed report on the relevant law from a different retired Indian Supreme Court judge, but the reports had been given in response to different questions and assumptions, and varied in some respects.102 Despite the objection of one of the parties, Lee J ordered that the questions of Indian law be referred to a referee for investigation and opinion. The referee was also allowed to communicate independently with the two retired Indian judges.103

93.

94. 95. 96. 97. 98. 99.

100. 101. 102. 103.

Marshall v Fleming [2014] NSWCA 64 at [24]–[27]. The order was confused by also relying on the power to appoint a referee under Uniform Civil Procedure Rules 2005 (NSW) rr 6.44(2) and 20.14. See also Marshall v Fleming [2017] NSWSC 1107 at [107]. [2011] NSWSC 1381. See 9.18. Uniform Civil Procedure Rules 2005 (NSW) r 6.45. Uniform Civil Procedure Rules 2005 (NSW) r 6.44(2). Marshall v Fleming [2014] NSWCA 64 at [28]. Federal Court of Australia Act  1976 (Cth) s  54A; Uniform Civil Procedure Rules 2005 (NSW) r 20.14; Supreme Court Act (NT) s 26; Uniform Civil Procedure Rules 1999 (Qld) r 501; Supreme Court Act 1935 (SA) s  67; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 50.01; Supreme Court Act  1935 (WA) s 50. Court Procedures Rules 2006 (ACT) r 1179; Alternative Dispute Resolution Act 2001 (Tas) ss 3, 5. [2017] FCA 114. At [32]–[34]. At [95].

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Documentary sources of law 9.23  Rules relating to proof of foreign law are sometimes found in the legislation relating to the rules of evidence generally,104 and this is the most common means of proving foreign law in Australian courts.105 In all states and territories, foreign statutes and subordinate legislation may be admitted in evidence even when they are not published under the authority of the foreign government.106 This includes any publication ‘that appears to the court to be a reliable source of information’.107 In Re Tang,108 the Victorian Court of Appeal held that an extract of a document on the Chinese law of succession that had been taken from the AsianLII website was ‘a reliable source of information’ for the purposes of the evidence statute, and should have been accepted by the trial judge as evidence of the Chinese law governing a will.109 In South Australia and Western Australia, ordinances and other written laws can be admitted in evidence in a similar way.110 Where such materials are published under the authority of the foreign government, they are treated as prima facie evidence of the relevant foreign law in Western Australia.111 In Western Australia, special provision is made allowing courts to take judicial notice of the statutes of Fiji, New Zealand and the United Kingdom.112 These provisions do not preclude a party’s right to rely on the common law to have a foreign statute admitted in evidence.113 It would also appear that expert evidence can still be given to show how the statute is interpreted and applied in the foreign country.114 However, if that expert evidence of the interpretation of the foreign statute is not forthcoming, it is open to the forum court to interpret the statute itself.115 Indeed, if the experts giving evidence on the foreign law disagree, it may be necessary for the court to examine the relevant foreign statutes to determine the more compelling interpretation.116 9.24  In Western Australia, authorised reports of cases may be admitted as evidence. Further, in the Australian Capital Territory, New South Wales, South Australia, Tasmania and Western Australia, unauthorised reports of cases and textbooks can also be received

104. Evidence Act  1995 (Cth); Evidence Act  2011 (ACT); Evidence Act  1995 (NSW); Evidence (National Uniform Legislation) Act (NT); Evidence Act 1977 (Qld); Evidence Act 1929 (SA); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic); Evidence Act 1906 (WA). Subsequently, in the notes in this chapter, references to the legislation will be to jurisdiction only. 105. McComish, above n 46, at 424. 106. Eg, Optus Networks Pty Ltd v Gilsan (International) Ltd [2006] NSWCA 171 at [87]. 107. See Cth s 174; ACT s 174; NSW s 174; NT s 174; Qld s 68; SA s 63; Tas s 174; Vic s 174; WA s 71. See Bant and Clayton [2015] FamCAFC 222 at [26]. 108. [2017] VSCA 171. 109. At [53]–[66]. 110. SA s 63; WA s 71. 111. WA s 70. 112. WA s 53. 113. Subbotovsky v Waung [1968] 3 NSWR 261. 114. Subbotovsky v Waung [1968] 3 NSWR 261 at 270; cf Homeward Bound Gold Mining Co NL v McPherson (1896) 17 LR (NSW) (Eq) 281. 115. Alstom Ltd v Sirakis (No 2) [2012] NSWSC 64 at [72]. 116. Michael Wilson and Partners v Nicholls (2008) 74 NSWLR 218 at 222–6.

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without expert evidence. As a result, in the New South Wales case of Fernandez v Perez118 the parties could give evidence of Florida law by tendering affidavits that attached the decisions that were being relied upon in the proceedings, with an explanatory note of the relevant court hierarchies in Florida.119 117

9.25  Trans-Tasman arrangements have secured special provision for documentary sources of New Zealand  law. The Trans-Tasman Proceedings Act  2010 (Cth) provides that there is no need to prove the terms or commencement of any New Zealand statute, subordinate legislation, proclamation, order or any other statutory instrument.120 A court may inform itself about those matters in any way it thinks fit.121 Copies of official instruments made by the New Zealand Government are also sufficient to prove them.122 Treaties entered by New Zealand may be proved by copies with the New Zealand seal or found in any book published by the New Zealand  Government or regarded as reliable by the Australian court.123 Any public document admissible in a New Zealand  court is admissible in an Australian court, without the need for further proof of sealing.124 However, this continues to fall short of a comprehensive scheme for the proof of New Zealand law in Australia, as the common law of New Zealand must be proved in the same way as any other foreign law.125 In Robinson v  Studorp Ltd,126 Jackson J in the Supreme Court of Queensland pondered whether New Zealand law was so ‘notorious’ in Australia that he should be able to take judicial notice of it. He nevertheless declined this approach, and instead took evidence of what the common law of negligence would have been in New Zealand before 1973.127 9.26  It is not sufficient, when establishing the content of foreign law, for a judge to rely on a statement of the foreign law made in another judgment of an Australian court.128

Determination of foreign law 9.27  A judge always decides a question as to the content of foreign law, even where a civil jury may be trying other issues of fact.129

117. Cth s 175; ACT s 174; NSW s 175; NT s 175; SA s 63; Tas s 175; Vic s 175; WA s 71. See Bant and Clayton [2015] FamCAFC 222 at [26]; Sherrin Hire Pty Ltd v Tidd Ross Todd Ltd (No 2) [2016] FCA 891 at [18]. 118. [2012] NSWSC 1242. 119. At [126]. 120. Trans-Tasman Proceedings Act 2010 (Cth) s 97(1). 121. Trans-Tasman Proceedings Act 2010 (Cth) s 97(2). 122. Trans-Tasman Proceedings Act 2010 (Cth) s 98. 123. Trans-Tasman Proceedings Act 2010 (Cth) s 99. 124. Trans-Tasman Proceedings Act 2010 (Cth) ss 100–102. 125. See  R Mortensen, ‘Together Alone: Integrating the Tasman World’ in A Dickinson, M Keyes and T John (eds), Australian Private International Law for the 21st Century, Hart Publishing, 2014, p 113 at pp 138–40. 126. (2013) 279 FLR 329; [2013] QSC 238. 127. That is, before it was abolished by statute: at [22], [55]–[74]; Studorp Ltd v  Robinson [2014] QCA 174 at [36]–[38]. 128. Talwar and Sarai [2018] FamCAFC 152 at [37]. 129. For example, ACT s 176; NT s 176; SA s 63A; Tas s 176; Vic s 176.

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9.30

9.28  The status of foreign law as a question of fact is limited to the content of the foreign law. Where the law of a foreign place provides that a court is to exercise a discretion, evidence can be taken as to the manner in which the relevant foreign courts exercise that discretion.130 In Neilson v  Overseas Projects Corporation of Victoria Ltd,131 however, a discretion thought to be placed in a Chinese statute was interpreted in accordance with principles of forum law. To the extent that the forum court is to consider the effect of the foreign law, this is regarded as a question of law. Accordingly, the forum court is only to take evidence from an expert on the content of the foreign law and is not to consider the opinion of the expert as to the effect of the law or its application in the circumstances of the case. Indeed, an opinion as to the effect or application of the foreign law is inadmissible as evidence.132

Proof of interstate law 9.29  It appears that s  118 of the Commonwealth Constitution requires an Australian court to recognise the statute law of another state without requiring that it be proved in evidence.133 Section 118 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.

The section has already been considered in relation to the recognition of interstate judgments,134 and a more extended analysis is given in Chapter  11 in relation to its implications for choice of law.135 Even though the section puts ‘Acts’ and ‘judicial proceedings’ on the same footing, there is no direct authority to the effect that judicial notice can also be taken of another state’s case law. Section  118 does not refer to federal territories, so it probably does not create an independent power for a court to take judicial notice of territory laws. However, s 185 of the Evidence Act 1995 (Cth) provides that ‘all public acts, records and judicial proceedings of a State or Territory’ authenticated in accordance with the Evidence Act are to be given ‘such faith and credit as they have by law or usage in the courts and public offices of that State or Territory’. This effectively extends the effect of s 118 to the federal territories. 9.30  The federal Evidence Act also provides that, in any court in Australia, it is not necessary to prove state or territory legislation, subordinate legislation, proclamations, orders or other instruments of legislation, proclamations, orders or other instruments of

130. National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209 at 226. 131. (2005) 223 CLR 331; [2005] HCA 54; see 8.20–8.27. 132. Neilson v Overseas Projects Corp of Victoria Ltd (2005) 223 CLR 331; [2005] HCA 54; United States Trust Co of New York v Australia and New Zealand Banking Group Ltd (1995) 37 NSWLR 131. 133. Re Commonwealth Agricultural Service Engineers Ltd [1928] SASR 342 at 346; Bateman and Idameneo (No 123) Pty Ltd v Fairfax Media Publications Pty Ltd [2013] ACTSC 72 at [30]–[31]. 134. See 5.69–5.71. 135. See 11.3–11.20.

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a legislative character. Judicial notice may be taken of such matters of law.136 This means there is no need even to plead the content of another state’s or territory’s statute law, let alone prove it by expert evidence. Hutley JA’s statement to this effect in Walker v  WA Pickles Pty Ltd137 was approved by Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ in Renault.138 It is sufficient to refer to interstate law in oral submissions to the court.139

136. 137. 138. 139.

See Cth ss 5, 143; see also ACT s 143; NSW s 143; NT s 143; Tas s 143; Vic s 143; WA s 53. [1980] 2 NSWLR 281 at 285. Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 518; [2002] HCA 10. Koop v Bebb (1951) 84 CLR 629 at 644–5; cf Meckiff v Simpson [1968] VR 62 at 65–6.

264

Chapter 10 Personal Connections Introduction 10.1  Many choice of law rules identify the law of the cause by reference to a personal connection that a person who is relevant to the proceedings has to a country or state. These personal connections are legal constructs, the most important being domicile, nationality (which usually means citizenship) and residence. For example, the choice of law rule applicable to questions of intestate succession to movable property is that the law of the cause is the law of the place where the deceased was domiciled at the time of death. The personal connection of domicile in a particular place is the means by which the law of the cause is identified. While domicile and citizenship have fixed meanings, the meaning of ‘residence’ has permutations — appearing in legislation as ‘residence’ (alone), ‘habitual residence’ and ‘ordinary residence’. Even then, a term like ‘residence’ can change meaning with the legislative context in which it appears.1 10.2  The personal connections of domicile, nationality and residence can also arise in questions of jurisdiction and the recognition or enforcement of judgments. So, in all states and territories a forum court’s jurisdiction over a person who is outside Australia can be established when the person is domiciled or ordinarily resident in the forum.2 Under the harmonised rules of court that are applicable in four states, habitual residence in Australia is an alternative ground of jurisdiction. In the Australian Capital Territory, the defendant’s habitual residence in the territory is a ground of jurisdiction.3 Personal connections are especially important in establishing jurisdiction in family matters,4 and habitual residence is the most important connection that arises under the Child Abduction Convention and the Child Protection Convention.5 A judgment of a foreign court may be recognised when the judgment creditor was domiciled in or a national of the foreign country at the time proceedings there were commenced.6 The recognition of a decree made in a matrimonial cause will commonly depend on whether one of the parties has a personal connection — domicile, nationality or residence — with the place where the decree was made.7

1. 2. 3. 4. 5. 6. 7.

Mark v Mark [2005] 3 All ER 912 at 926. See 2.45. See 2.47. The constitutional and legal validity of these rules is doubtful: see 2.34. See 14.4–14.5. See Chapter 15. See 5.19. See 14.23–14.30.

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Domicile 10.3  The concept of domicile has origins in Roman law: the words domus (house) and colere (to inhabit) compounded to give the place where a person normally kept house. In Roman law, the concept of domicile, although identified by rules that are similar to those used in the modern common law, was used to identify a person’s connection with an administrative district. In the course of the reception of Roman law in medieval Europe, a person’s domicile came to signify the place that would provide laws to which they were subject. Thus, the law of a person’s domicile (lex domicilii) represented that person’s personal law, which would follow a person wherever they happened to be. It increasingly came to be used as a choice of law connection for questions of status.8 While English law was more strongly territorial and, until the 18th century, had no role for a personal law in multistate cases, different personal connections began to intrude. At first, the connection adopted was ‘residence’. In Pipon v Pipon,9 Lord Hardwicke LC held that a question of succession to movable property should be governed by the law of the place where the deceased was resident when he died. However, under the influence of Scots law, the continental concept of domicile received increasing reference in English cases, until in 1830 it was adopted as the relevant connection to use when deciding multi-state questions of succession to movable property. The Roman legal influence was also more prominent in ecclesiastical causes, and so domicile was readily deployed in cases involving marriage and the probate of wills, and then bankruptcy and other question of status.10 As a consequence Robert Phillimore, a leading ecclesiastical advocate, published an early treatise on The Law of Domicil in 184711 which blended Roman law and continental authority with 75 decisions from British and American courts. A V Dicey’s Law of Domicile as a Branch of the Law of England12 was published in 1879 and was the precursor to his Conflict of Laws.13 It demonstrated the extent to which domicile had been incorporated into the common law, as Dicey digested over 300 cases from courts in, largely, the United Kingdom. Domicile remains the only personal connection that the common law uses in choice of law cases and differs in structure from the Roman and civilian concepts of domicile. In fact, the civil law systems themselves have long replaced domicile with an emphasis on the law of the place of nationality (lex patriae). 10.4  Domicile is therefore the oldest of the personal connections in current use in choice of law cases. The common law is still also the primary source of the rules used to identify a person’s domicile.14 However, there has been important legislative reform to the law of domicile in Australia, implemented by the passage of the uniform Domicile Acts by the

8. 9. 10. 11. 12. 13. 14.

For an instance of reversion to Roman law concepts to determine domicile, see Mark v Mark [2005] 3 All ER 912 at 916–18. (1744) Amb 25; 27 ER 14. P E Nygh, ‘The Reception of Domicil into English Private International Law’ (1961) 1 Tasmanian University Law Review 555. R Phillimore, The Law of Domicil, T & J W Johnson, Philadelphia, 1847. A V Dicey, The Law of Domicile as a Branch of the Law of England, Stevens & Sons, London, 1879. See 1.13. Again, cf Lord Hope of Craighead’s speech in Mark v Mark [2005] 3 All ER 912 at 917, where appeal was made to principles ‘capable of being applied universally’.

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10.7

Federal Parliament, and in all states and territories. The commencement date for all of the Domicile Acts is 1 July 1982, and the operation of the legislation is entirely prospective. Therefore, where a court is to determine where a person was domiciled at a time after 1 July 1982, the law as adjusted by the Domicile Acts is applied. This still requires considerable reference to the common law, as the Domicile Acts have not created a code — merely a modification of the common law.16 Alternatively, a court now required to determine where a person was domiciled at a time before 1 July 1982 is still to apply the common law without any reference to the Domicile Acts.17 That makes it necessary to consider the rules of domicile both at common law and as adjusted by the Domicile Acts. 15

10.5  The federal Act applies where a question of domicile arises under federal law, or under the law of any federal territory except the Northern Territory.18 Therefore, questions of where a person was domiciled at some time after 1 July 1982, that arise under the law of the Australian Capital Territory, will be dealt with under the federal Act. Naturally, similar questions about domicile that arise under the law of a state will be dealt with in accordance with the relevant state Domicile Act. The Northern Territory also has its own Domicile Act for determining questions of domicile that arise under the law of the Northern Territory. 10.6  There are three types of domicile: domicile of origin; domicile of dependence; and domicile of choice.19 Each is recognised at common law and under the Domicile Acts. 10.7  The general concept of domicile is that it was the place that was ‘the chief seat of [an individual’s] affairs and interests’ and, in effect, the place that was considered ‘home’.20 Older common law cases perpetuated the Roman law by referring to domicile as the place where a man set up his ‘household gods’.21 The legal significance it acquired led Holmes J in Williamson v Osenton22 to call it ‘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 law may be determined’.23 This comment reveals that the place where a person is domiciled is, putting the occasional artifice of domicile of origin and dependence to one side, that with which the person has the most significant mental and physical connection. This is also the reason why domicile remains the most important determinant of what is regarded as an individual’s ‘personal law’. However, implicit in Holmes J’s statement are two central assumptions about all types of domicile. The first is that a person is always deemed by law

15.

16. 17. 18. 19. 20. 21.

22. 23.

Domicile Act 1982 (Cth); Domicile Act 1979 (NSW); Domicile Act (NT); Domicile Act 1981 (Qld); Domicile Act 1980 (SA); Domicile Act 1980 (Tas); Domicile Act 1978 (Vic); Domicile Act 1981 (WA). Subsequent references to the state and territory Acts will be given by citation of the Domicile Act 1979 (NSW) only. While the legislation is uniform, the federal Act is numbered differently to the other Acts. Marriage of Ferrier-Watson and McElrath (2000) 155 FLR 311 at 329; [2000] FamCA 219. Domicile Act 1982 (Cth) s 5; Domicile Act 1979 (NSW) s 4. Domicile Act 1982 (Cth) s 3. Phillimore, above n 11, p 24; In the Estate of Bedake [2015] ACTSC 267 at [24]. Phillimore, above n 11, p 16. Hog v Lashley (1792) 6 Bro PC 577 at 590–1; 2 ER 1278 at 1287; Somerville v Lord Somerville (1801) 5 Ves Jun 750 at 784, 789; 31 ER 839 at 856, 859; Stanley v Bernes (1830) 3 Hagg Ecc 373 at 423; 162 ER 1190 at 1212; J Story, Commentaries on the Conflict of Laws, 5th ed, Little, Brown and Company, Boston, 1857, p 48. 232 US 619 (1914). At 620. See also In the Estate of Bedake [2015] ACTSC 267 at [23].

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to have a domicile. Although the Roman law recognised that a person might not have a domicile, the common law has maintained devices (such as the revival of the domicile of origin) that deem a domicile always to exist.25 Second, although a person’s domicile can change, for any one purpose a person can only have one domicile at any one time.26 This is another point on which the common law now differs from the Roman law, even though early common law cases had recognised different domiciles — especially when ‘a domicile of allegiance’ to the United Kingdom — what was in effect nationality — could not be abandoned.27 24

10.8  The settled common law position that a person can have only one domicile at any one time led, in Lloyd v Lloyd,28 to the claim that it was impossible to be domiciled in Australia even though, under the Matrimonial Causes Act 1959 (Cth), a court only had jurisdiction in an application for a divorce if the petitioner was domiciled in Australia. It was argued that, since a person could have only one domicile, a person could not be domiciled in Australia independently of his or her domicile in a given state or territory. In Lloyd, Barry J held that a person could be domiciled in Australia for purposes of federal law, and in a state or territory for other purposes. Indeed, the existence of an independent Australian domicile was reinforced strongly in Re Benko, dec’d.29 There, it was held that the deceased could acquire a domicile of choice in Australia as he had resolved to live permanently in Australia. But, as there was no similar evidence of an intention to live permanently in any particular state, he had not acquired a domicile of choice in any given state of Australia and, for purposes of succession, was still domiciled in Hungary.30 10.9  Since 1 July 1982, a person who is domiciled in a ‘union’ but not in ‘any one of the countries that together form part of the union’ is deemed to be domiciled in that ‘country’ with which the person ‘has for the time being the closest connection’.31 For these purposes, a ‘country’ includes any ‘state, province or other territory that is one of two or more territories that together form a country’. A ‘union’ means ‘any country that is a union or federation or other aggregation of two or more countries, and includes Australia’.32 Thus, a person who lives in Adelaide but, although intending to live indefinitely in Australia, does not necessarily intend to stay in the city, is deemed by the Domicile Acts to be domiciled in South Australia. That state is the ‘country’ in Australia with which the person has — at that point — the closest connection.33

24. 25. 26. 27. 28. 29. 30. 31. 32. 33.

Dicey, above n 12, p 59. Somerville v Lord Somerville (1801) 5 Ves Jun 750 at 787; 31 ER 839 at 858. Marriage of Ferrier-Watson and McElrath (2000) 155 FLR 311 at 329; [2000] FamCA 219; Udny v Udny (1869) LR 1 Sc & Div 441 at 457; Mark v Mark [2005] 3 All ER 912 at 926–7; Dicey, above n 12, p 61. Somerville v Lord Somerville (1801) 5 Ves Jun 750 at 791; 31 ER 839 at 860; Stanley v Bernes (1830) 3 Hagg Ecc 373 at 452; 162 ER 1190 at 1122; but cf Bempde v Johnstone (1796) 3 Ves Jun 198 at 200–1; 30 ER 967 at 968. [1962] VR 70. [1968] SASR 243. See also Application of Perpetual Trustee Company Ltd: Re Estate of Dempsey [2016] NSWSC 159 at [194]–[200]. Domicile Act 1982 (Cth) s 11; Domicile Act 1979 (NSW) s 10. Domicile Act 1982 (Cth) s 4; Domicile Act 1979 (NSW) s 3. Cf Re Benko, dec’d [1968] SASR 243.

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10.11

Domicile of origin 10.10  The law ascribes a domicile to every person at birth, known as the domicile of origin (domicilium originis). In almost every case, this will depend on the domicile that one parent or the other of the child has at the time of the child’s birth. At common law, the domicile of origin of a legitimate child is the domicile that their father had at the time the child was born. The domicile of origin of an illegitimate child or a child born after the father’s death is the domicile that their mother had at the time the child was born.34 The domicile of origin of a foundling is in the place where the child was found.35 The actual place of birth is irrelevant to the determination of a person’s domicile of origin.36 10.11  Even before the effect of the Domicile Acts can be dealt with, the position of the illegitimate child needs further consideration. First, at common law, a child born to parents who subsequently had their marriage annulled was considered illegitimate. From 1 September 1963, s 91 of the Marriage Act 1961 (Cth) has provided that a child of a marriage that is void is considered legitimate if either parent had reasonable grounds to believe that the marriage was valid. Therefore, most children born to a marriage that is subsequently annulled will be considered legitimate and will have a domicile of origin dependent on the father’s domicile at the time of the child’s birth. Second, in all states (except Western Australia) and in the internal territories there is uniform status of children legislation, and it has been argued that this might affect the domicile of origin of illegitimate children. This legislation commenced in the different states and territories on different dates, between 1975 and 1989.37 It provides that ‘the relationship between every person and his father and mother shall be determined irrespective of whether the father and mother are or have been married to each other’. The Australian Capital Territory Act provides that the ‘relationship must be decided without regard to whether the parents of the person are or have ever been married to, or in a civil union or civil partnership with, each other’. Given that civil unions and partnerships are not recognised at common law, it seems that this reference is largely superfluous.38 The authors of Nygh have continued to suggest that this means that the original domicile of an illegitimate child depends on the domicile of the father at the time of the child’s birth.39 However, this is neither a necessary nor a practical reading of the status of children legislation. The legislation does not expressly address the question of domicile. Further, a child’s domicile determines the place that determines ‘certain rights and duties

34. 35. 36. 37.

38. 39.

Udny v Udny (1869) LR 1 Sc & Div 441 at 457; Application of Perpetual Trustee Company Ltd: Re Estate of Dempsey [2016] NSWSC 159 at [173]; Story, above n 21, pp 54–5; Dicey, above n 12, p 69. Dicey, above n 12, pp 69, 72; Re AM Mackenzie, dec’d (1951) 51 SR (NSW) 293. The comments in Re Tang [2017] VSC 59 at [71] are incorrect. Birth (Equality of Status) Act 1988 (ACT) s 5 (commenced 24 March 1989); Parentage Act 2004 (ACT) s  38; Status of Children Act 1996 (NSW) s 5; replacing s 6, Children (Equality of Status) Act 1976 (NSW) (commenced 1 July 1977); Status of Children Act (NT) s 4 (commenced 21 September 1979); Status of Children Act 1978 (Qld) s 3 (commenced 1 January 1979); Family Relationships Act 1975 (SA) s 6 (commenced 29 January 1976); Status of Children Act 1974 (Tas) s 3 (commenced 1 March 1975); Status of Children Act 1974 (Vic) s 3 (commenced 1 March 1975). Parentage Act 2004 (ACT) s 38(2). See M Davies, A S Bell and P L G Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, Sydney, 2014, pp 316–17.

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that have attached to it by law’.40 Domicile is therefore a relation between a person and a place,41 and does not necessarily affect the child’s relationship with their father and mother. In addition, there are occasions when the paternity of the child cannot be identified and, in this respect, Nygh’s interpretation of the status of children legislation is unworkable.42 The effect of reproductive technology legislation that presumes the parentage of children who have been conceived artificially is to give greater emphasis to the child’s relationship with their mother, and this is compatible with the suggested interpretation of the status of children legislation.43 While the courts have tended to hold that the status of children legislation means that the child enjoys all of the patrilineal rights that, at common law, stemmed from being born in wedlock,44 none of these cases has involved the question of domicile.45 10.12  Western Australia has no generic status of children legislation. In that state, there is no question that an illegitimate child still has a domicile dependent on the mother’s domicile at the time of the child’s birth. 10.13  Reproductive technology has accentuated the question of the unknown father, and has seen a renewed emphasis placed on the mother’s domicile for the domicile of the child born to her. Legislation dealing with the effect of the use of this technology is in force in all states, including Western Australia, and the territories. For the most part, it applies when the mother has received artificial insemination through the use of donated sperm, or when a fertilised ovum (whether her own or from another woman) has been implanted in her womb. If the mother has a ‘male partner’, the legislation deems the partner to be the child’s father — even if the partner is not the biological father.46 It has been held that the Western Australian legislation is broad enough to include children born under a surrogacy arrangement, and regardless of the arrangement the birth mother is deemed to be the mother of the child at the time of birth.47 In these cases, the child’s domicile will be determined in accordance with the position that holds for a child born inside or outside wedlock at common law.48 10.14  In any other domestic situation where reproductive technology is involved, the child’s domicile is not directly addressed by the legislation. This is because any male involved in the fertilisation of the ovum through the use of donated sperm is conclusively

40. 41. 42. 43. 44. 45. 46.

47. 48.

Williamson v Osenton 232 US 619 at 620 (1914). See 10.7. Phillimore, above n 11, pp 16–17. E A Sykes and M C Pryles, Australian Private International Law, 3rd ed, LawBook Co, Sydney, 1991, p 353. See 10.13–10.14. See, for example, G v P [1977] VR 44 at 46 (surname); Douglas v Longano (1981) 147 CLR 212 at 216 (custody). The view that the status of children legislation does not change the common law’s ascription of domicile of origin was also supported by Sykes and Pryles, above n 42, p 353. Family Law Act 1975 (Cth) ss 69P–69Q; Parentage Act 2004 (ACT) s 11(4); Status of Children Act 1996 (NSW) s 14(1)(a); Status of Children Act (NT) s 5D(1); Status of Children Act 1978 (Qld) s 19(2); Family Relationships Act 1975 (SA) s 10C(3); Status of Children Act 1974 (Tas) s 10C(1); Status of Children Act 1974 (Vic) ss 10D(2)(a), 10E(2)(c)(d)(i); Artificial Conception Act 1985 (WA) s 6. Farnell and Chanbua [2016] FCWA 17 at [393], [401]. See 10.11.

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determined not to be the child’s father. Without a male partner who has consented to the procedure, the child is therefore born having no legal father. This includes situations where the mother’s partner is another woman (even if the two women are married or in another adult relationship),50 or if the mother is single. In such a case, the child has only a mother or two female parents. The common law rule making the child’s domicile dependent on the mother’s would therefore seem to be the only rule applicable. If there are two female parents, the child’s domicile is likely to depend on the birth mother’s domicile, as there are no common law rules addressing the position of a non-birth mother, and the Domicile Acts make no change to the common law in this situation.51 49

10.15  The domicile of origin retains significance only to the extent that the doctrine of the revival of the domicile of origin remains important. At common law, a person’s original domicile revived when that person lost one domicile of choice without acquiring another.52 Thus, in Udny v Udny53 Colonel Udny had an original domicile in Scotland as his father was domiciled there at the time of the colonel’s birth. The colonel lived in England between 1812 and 1844, until he moved to Boulogne in France to escape his creditors. He stayed there until 1853, when he returned to England. There, his son John was born out of wedlock. The colonel married John’s mother in Scotland in 1854. On appeal from the Court of Session, the House of Lords had to decide where the colonel was domiciled in 1854, as the law of the place of the colonel’s then domicile would govern the question whether John was legitimated in that year. It held that, if the colonel was domiciled in England in 1844 when he moved to Boulogne, he had abandoned any English domicile of choice. However, not wishing to remain in France — as it was an expedient place to live while his creditors were pressing for him to pay his debts — the colonel did not acquire a French domicile of choice. So, his Scottish domicile of origin revived and remained the colonel’s domicile in 1854. As in Scots law the subsequent marriage of the parents legitimated any of their children born out of wedlock, John was considered legitimate. 10.16  The doctrine of revival has been abolished and does not apply where a court must determine what a person’s domicile is at some time after 1 July 1982. A person’s domicile of choice is regarded as continuing until that person acquires a new domicile of choice.54

49.

50.

51. 52. 53. 54.

Parentage Act 2004 (ACT) s 11(5); Status of Children Act 1996 (NSW) s 14(2); Status of Children Act (NT) s  5D(1)(b); Status of Children Act 1978 (Qld) ss 17(2)(b), 18(2)(b), 19C(2), 19E(4), 21(1), 22(2), 23(4); 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), 10D(2)(b), 10D(2)(d), 10E(2)(d), 10E(2)(f), 13(1)(c), 14(1)(c), 15(1)(b), 16(1)(b); Artificial Conception Act 1985 (WA) s 7(2). Parentage Act 2004 (ACT) s 11(5); Legislation Act 2001 (ACT) s 169(1); Status of Children Act 1996 (NSW) s 14(1A); Status of Children Act (NT) s 5DA(1); Status of Children Act 1978 (Qld) ss 19A–19G; Family Relationships Act 1975 (SA) s 10C(3)(a); Status of Children Act 1974 (Tas) ss 10C(1A), 10C(3)–(5); Status of Children Act 1974 (Vic) ss 11–16; Artificial Conception Act 1985 (WA) s 6A. See 13.13 and 13.57–13.58. See Davies, Bell and Brereton, above n 39, p 317. Story, above n 21, p 58; see Fremlin v Fremlin (1913) 16 CLR 212. (1869) LR 1 Sc & Div 441. Domicile Act 1982 (Cth) s 7; Domicile Act 1979 (NSW) s 6; Application of Perpetual Trustee Company Ltd: Re Estate of Dempsey [2016] NSWSC 159 at [175].

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Domicile of dependence 10.17  Where a person does not have the legal capacity to acquire a domicile of choice, that person’s domicile is known as a domicile of dependence. This group evolved from an older classification of necessary domiciles (domicilium necessarium),55 where domiciles were once ascribed by law to servants,56 public officers,57 clergy58 and prisoners59 (among others). The modern law of domicile of choice now deals with circumstances similar to these, but there remain categories in which a person’s domicile depends on the domicile of another who does have the legal capacity to acquire a domicile of choice. There are three classes of people who can have a dependent domicile: minors; married women; and the mentally impaired.

Minors 10.18  At common law, a legitimate child (whose father is alive) has a domicile dependent on the father’s domicile. If the father’s domicile changes while the child is still in minority, then the child’s domicile also changes.60 A legitimate child, whose father has died, has a domicile dependent on the mother’s domicile.61 In general, if the mother’s domicile changed subsequent to the father’s death, then the child’s domicile changed with hers. However, there was an ancient principle that a surviving parent could change the domicile of a child if that was done for the benefit of the child, or when it was done reasonably and in good faith.62 This was accepted at common law in the recognition that a mother may change the child’s domicile, or refrain from changing it from one dependent on the deceased father, if that would be for the welfare of the child.63 An illegitimate child has a domicile dependent on the mother’s domicile.64 An orphan probably carries the domicile of the child’s guardian during their minority.65 10.19  The Domicile Acts make some changes to the dependent domicile of a minor, where it has to be determined what that domicile was for some time after 1 July 1982. First of all, if a child has a principal home with one parent, and the child’s parents are living separately 55. 56. 57.

58. 59. 60. 61. 62. 63. 64. 65.

Phillimore, above n 11, pp 43–68. Countess of Dalhousie v M’Douall (1840) 7 Cl & F 817 at 830; 7 ER 1279 at 1284. Bruce v Bruce (1790) 6 Bro PC 566 at 566–7; 2 ER 1271 at 1271 (East India Company); Bempde v Johnstone (1796) 3 Ves Jun 198 at 202–3; 30 ER 967 at 969 (military service); Somerville v Lord Somerville (1801) 5 Ves Jun 750 at 787–9; 31 ER 839 at 858–9 (parliamentarian); The Indian Chief (1801) 3 C Rob 12; 165 ER 367 (consul); Munroe v Douglas (1820) 5 Madd 379 at 404–6; ER 940 at 949 (East India Company); Ruding v Smith (1821) 2 Hag Con 371 at 386; 161 ER 774 at 779 (ambassador); Story, above n 21, p 60. Phillimore, above n 11, p 61. Phillimore, above n 11, p 62. Scrimshire v Scrimshire (1752) 2 Hag Con 395 at 406; 161 ER 782 at 786; Somerville v Lord Somerville (1801) 5 Ves Jun 750 at 787; 31 ER 839 at 858; Re Duleep Singh (1890) 6 TLR 385; Story, above n 21, p 55. Potinger v Wightman (1817) 3 Mer 67 at 80; 36 ER 26 at 30; Parnell-Schoneveld v Repatriation Commission [2003] FCA 153 at [22]; cf Scrimshire v Scrimshire (1752) 2 Hag Con 395 at 406–7; 161 ER 782 at 786. Phillimore, above n 11, pp 32–41. Re Beaumont [1893] 3 Ch 490; Parnell-Schoneveld v Repatriation Commission [2003] FCA 153 at [22], [38]–[50]; cf Scrimshire v Scrimshire (1752) 2 Hag Con 395 at 407; 161 ER 782 at 786. Story, above n 21, p 55; Phillimore, above n 11, p 41; Countess of Dalhousie v M’Douall (1840) 7 Cl & F 817 at 831; 7 ER 1279 at 1284; Crumpton’s Judicial Factor v Finch-Noyes 1918 SC 378. Sharpe v Crispin (1869) LR 1 P&D 611; Dicey, above n 12, p 97.

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or apart, the child’s domicile depends on the domicile of the parent with whom the child is living. Second, if the child has a principal home with one parent and that parent is the only parent living, the child’s domicile depends on the domicile of the surviving parent. If that parent dies, the child’s domicile is the domicile which that parent had at the time of the parent’s death.66 Third, where two adoptive parents adopt a child, the domicile of the child is determined as if the child was born within wedlock to those parents. Fourth, where a child is adopted by one parent, that child’s domicile depends on the adoptive parent’s domicile.67 The person’s minority and, therefore, domicile of dependence cease when they reach age 18 or when they marry — whichever is the earlier.68

Married women 10.20  At common law, a married woman has a domicile dependent on the domicile of her husband.69 Hence, in Attorney-General for Alberta v Cook70 the Privy Council held that the Alberta courts had no jurisdiction to hear an application for divorce from a woman who had lived in the Province for four years. The reason was that the jurisdiction of the trial court in matrimonial causes was based on the petitioner’s domicile in Alberta. As the woman was still married to a man who was domiciled in Ontario, the Alberta courts could not hear the petition. If the husband died, the widow acquired a capacity to acquire a domicile independently.71 On divorce, the woman’s dependent domicile also ceased, and from the time of the divorce she could immediately acquire, where the conditions were satisfied, a new domicile of choice.72 On annulment, however, the woman was deemed never to have been married, and therefore could be taken to have chosen a new domicile (again, where the conditions were satisfied) even after the time of the so-called wedding. The injustice of the married woman’s dependent domicile was most evident in matrimonial causes, and so it was in this area that reforms first appeared. First, from 1 September 1963, a married woman was regarded as having a domicile independent of her husband for the purposes of the Marriage Act 1961 (Cth).73 Second, from 12 June 1975, a married woman was also regarded as having an independent domicile for the purposes of the Family Law Act 1975 (Cth).74 These provisions were repealed as of 1 July 1982,75 with the general prospective abolition of the married woman’s dependent domicile under the Domicile Acts.

66. 67. 68. 69.

Domicile Act 1982 (Cth) s 9(1); Domicile Act 1979 (NSW) s 8(1). Domicile Act 1982 (Cth) s 9(2); Domicile Act 1979 (NSW) s 8(2). Domicile Act 1982 (Cth) s 7; Domicile Act 1979 (NSW) s 6. Chichester v Marquis and Marchioness of Donegal (1822) 1 Add 5 at 19–20; 162 ER 2 at 7–8; Warrender v Warrender (1835) 2 Cl & Fin 488 at 523–4; 6 ER 1239 at 1252; Gambier v Gambier (1835) 7 Sim 263 at 269–70; 58 ER 838 at 841; Lord Advocate v Jaffey [1921] 1 AC 147. 70. [1926] AC 444. 71. Dicey, above n 12, p 108; eg Parnell-Schoneveld v Repatriation Commission (2003) 74 ALD 37; [2003] FCA 153. 72. Warrender v Warrender (1835) 2 Cl & Fin 488 at 525–6; 6 ER 1239 at 1252–3; Miller v Teale (1954) 92 CLR 406 at 414; Marriage of Ferrier-Watson and McElrath (2000) 155 FLR 311 at 331; [2000] FamCA 219; Dicey, above n 12, p 109. 73. Marriage Act 1961 (Cth) s 5(4)(b). 74. Family Law Act 1975 (Cth) s 4(3)(b). 75. Domicile (Consequential Amendments) Act 1982 (Cth) ss 3–4.

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10.21  The Domicile Acts provide that, when determining a person’s domicile after 1 July 1982, a married woman is regarded as having a domicile independent of her husband’s.76

Mental incapacity 10.22  At common law, a person who, because of mental impairment, does not have the capacity to acquire a domicile of choice, retains the domicile they had when the incapacity arose.77 If the incapacity arose when the person was a minor, the person may be regarded as still having a domicile dependent on the relevant parent’s domicile even after attaining majority.78 The Domicile Acts do not change these principles.79

Domicile of choice 10.23  A person of the requisite legal capacity can acquire a domicile of choice. There are two legal requirements for a domicile of choice to arise: residence in the new place (factum); and an intention to reside indefinitely in the new place (animus manendi). If both are established, then a previous domicile is displaced and the new domicile is recognised.80 10.24  The question of residence is rarely the subject of dispute when determining whether a domicile of choice has arisen. There is no requirement that the period of residence in the new place be of any significant duration.81 An extreme example is the West Virginian case of White v Tennant,82 where residence in Pennsylvania — sufficient to show that the deceased had a chosen domicile there — was established immediately once he had crossed the border from West Virginia. In Marriage of Ferrier-Watson and McElrath83 it was argued, in effect, that factum required residence in the new place. On this ground, it was argued that the husband — who claimed to be domiciled in Australia and, on that basis, entitled to apply for a divorce — could not have an Australian domicile. Although he had been present in Australia, he had not established residence by the time he made the application. The Full Court of the Family Court rejected this argument, holding that the length of a lawful presence in the new country was immaterial. Holden and Jerrard JJ said that the Domicile Act ‘does not in terms require proof that the home to be made existed at the time the necessary intent was formed, or that the home had existed for any stipulated length of time, or for long enough to be described as “residence” ’.84 This reinforces the long-held view that factum can amount to a bare presence in the place that is intended to be ‘home’. 10.25  The question of intention is more problematic in cases where the acquisition of a domicile of choice is being considered. At times it has been claimed that the earlier

76. 77. 78. 79. 80. 81. 82. 83. 84.

Domicile Act 1982 (Cth) s 6; Domicile Act 1979 (NSW) s 5. Crumpton’s Judicial Factor v Finch-Noyes 1918 SC 378; Kertesz v Kertesz [1954] VLR 195; In the Estate of Bedake [2015] ACTSC 267 at [27]–[34]. Re G [1966] NZLR 1028. In the Estate of Bedake [2015] ACTSC 267 at [26]. Application of Perpetual Trustee Company Ltd: Re Estate of Dempsey [2016] NSWSC 159 at [176]. Bell v Kennedy (1868) LR 1 Sc & Div 307. 8 SE 596 (1888). (2000) 155 FLR 311; [2000] FamCA 219. At 331.

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requirement of the common law was that the person had to show an intention to reside permanently in the place.85 However, the nineteenth century institutional writers consistently referred to the need for an intention to reside in the new place merely for an indefinite period, and this threshold is now well-established in the case law.86 This is a more realistic condition, as it means that the required intention is established if the person intends to remain in the place for an unlimited period, even if there is some vague ‘floating’ intention by which the possibility of assuming residence elsewhere at some unknown time in the future is not denied.87 However, it also means that the required intention does not exist if the person had a clear intention to leave the place at some time in the future even if the date of departure was indefinite. So, in Re Furse, dec’d,88 the deceased was originally domiciled in Rhode Island. He had lived in England between 1923 and 1963, despite having decided at some point in the 1950s that if he were unable to manage his farm in England, he and his wife would move to a house they had in New York. Fox J held that, by the 1950s, the deceased had acquired a chosen domicile in England. The intention to return to the United States depended on a contingency that, at that time, was unlikely to eventuate and which therefore placed no real limitation on the period of the deceased’s intended residence in England.89 In Marriage of Henry,90 the husband also had some intention to return to Australia, where he had a domicile of origin, though he lived overseas between 1976 and 1993. That intention was also considered to be too vague to prevent his acquiring a domicile of choice in Monaco in 1987. In contrast, in Inland Revenue Commissioners v Bullock,91 the deceased was from Nova Scotia, but had also lived in England for 40 years. In 1953, when he retired from the Royal Air Force, the deceased had a firm wish to return to Nova Scotia. However, his wife wished to remain in England. Consequently, the deceased’s return to Nova Scotia depended on his persuading his wife to change her mind, or his wife predeceasing him. In Bullock, the contingencies were held to be sufficiently definite to indicate a wish not to remain in England. The result was that no chosen domicile in England was acquired, despite a lengthy period of residence there.92 10.26  The Domicile Acts also provide that the intention that a person must have in order to acquire a domicile of choice in a place is the intention to live there indefinitely.93 10.27  These principles suggest that there is no limit to the considerations that might be taken into account in considering whether a person has acquired a new domicile by choice. In all cases, the issue will be what the evidence reveals of the person’s intention. However, in Marriage of Ferrier-Watson and McElrath94 Holden and Jerrard JJ in the Full Court of the Family Court held that ‘residence in a country should be understood as the best, or very 85. 86. 87. 88. 89. 90. 91. 92. 93. 94.

Winans v Attorney-General [1904] AC 287 at 288. See Story, above n 21, p 56; Dicey, above n 12, p 73; Mark v Mark [2005] 3 All ER 912 at 927. See Hyland v Hyland (1971) 18 FLR 461; Application of Perpetual Trustee Company Ltd: Re Estate of Dempsey [2016] NSWSC 159 at [177]. [1980] 3 All ER 838. See also In the Estate of Fuld (No 3) [1968] P 675. (1995) 19 Fam LR 227. [1976] 3 All ER 353. See also Jamieson v Commissioner for Internal Revenue (2007) 210 FLR 210; [2007] NSWSC 324. Domicile Act 1982 (Cth) s 10; Domicile Act 1979 (NSW) s 9. (2000) 155 FLR 311; [2000] FamCA 219.

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good, evidence of the required intention’.95 Accordingly, although residence is not necessary to show factum, where residence can be established it will be both sufficient to show factum and helpful for showing that the requisite animus manendi existed. Holden and Jerrard JJ added in Ferrier-Watson and McElrath that intention ‘can be inferred amongst other things from the nature of the departure from another country, and the circumstances of arrival in what is intended to be the new one’.96 A myriad of other considerations can also help to show intention. A person’s adopting residence, being employed and holding most of their assets in a new country without any plans to return to the domicile of origin are strong evidence of a sufficient intention to acquire a new domicile.97 The purchase of a house in the new place may reveal an intention to live there indefinitely.98 It is, nevertheless, still possible for a person to purchase a residence in the place without that being evidence of the requisite intention.99 Then, retaining a house in the old place can help to show that the person did not have an intention to remain in the new place indefinitely.100 Residence in another place may not be sufficient evidence of an intent to reside there indefinitely when the original country is the place where most assets are held and where the recipients of most testamentary gifts live, and where the person has continued to return there for lengthy periods.101 In some cases the person’s retaining a house in the old place may indicate nothing about their intention to live in the new place.102 It can be relevant in establishing the required intention that the person has been granted permanent residence or acquired citizenship of the new place.103 However, one can acquire citizenship in the place without having an intention to live there indefinitely.104 Further, it is not necessary to become a citizen of the place in order to acquire a domicile of choice there.105 For completeness’ sake, it should be noted that citizenship, in a plurilegislative nation like Australia, can be ambiguous for determining whether it supports a chosen domicile in one of the constituent states or law areas of the nation.

Refugees and temporary residents 10.28  The same principles apply to refugees and temporary residents. Either status does not affect the basic principle that the required intention is one to reside indefinitely in the new place. In the case of a refugee it is presumed, somewhat unrealistically, that the refugee does not intend to remain in the new place indefinitely, as the mere fact that they are a refugee suggests that there is a wish to return to the old country. The presumption can be rebutted by direct evidence of an intention to live in the new place indefinitely.106 Similarly, the domicile of temporary residents is also ultimately resolved by reference to intention.

95. 96. 97. 98. 99. 100. 101. 102. 103. 104. 105. 106.

At 332. At 332. Re Tang [2017] VSC 59 at [77]–[78]. See Bell v Kennedy (1868) LR 1 Sc & Div 307. D’Etchegoyen v De’Etchegoyen (1883) 13 PD 132 at 134. Browne v Browne [1917] NZLR 425. Application of Perpetual Trustee Company Ltd: Re Estate of Dempsey [2016] NSWSC 159 at [187]–[193]. For example, Hyland v Hyland (1971) 18 FLR 461. See Sells v Rhodes (1905) 26 NZLR 87; Kaur v Narula [2007] FMCAfam 657 at [22]–[24]. In the Estate of Fuld (No 3) [1968] P 675; Re Tang [2017] VSC 59 at [77]. Brunel v Brunel (1871) LR 12 Eq 298. In the Marriage of Wu (1994) FLC 92-477.

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10.29

In Marriage of Salacup, a temporary resident was shown to have an intention to stay in Australia indefinitely and therefore to have acquired an Australian domicile of choice. It is irrelevant that the immigration authorities have not given permission to live in the place indefinitely or, indeed, that subsequently they may actually deport the person. 107

Illegal residents 10.29  There seems to be no reason why residence that is illegal — usually because it violates immigration laws — should necessarily preclude the assumption of a domicile of choice in that place. Older Australian cases support the view that a person who is in a place illegally cannot acquire a domicile of choice in that place.108 However, this would be an explicit addition to the general requirements of factum and animus manendi that are needed for a chosen domicile to arise, and there has been no general support for recognition of a third requirement of legality for a domicile of choice. The Australian cases must, nevertheless, be open now to serious question, with the House of Lords’ unanimous decision in Mark v Mark109 that a person illegally resident in England can, for the purposes of the private law, acquire both a new domicile and habitual residence in England. The question of domicile in Mark was important for establishing that the English courts had jurisdiction in divorce proceedings between a couple who had originally lived, and had married, in Nigeria. It was accepted that the wife had satisfied all of the requirements of factum and animus for her to be considered domiciled in England, except that she was living there in breach of immigration laws. In the leading speech of Baroness Hale of Richmond, with whom all of the Lords agreed,110 the person’s intention to live indefinitely in the new country was given overriding effect in considering whether they had acquired a domicile there. Illegal residence was relevant to the question of a chosen domicile, but did not automatically deny it. Her Ladyship concluded that unlawful presence, even if amounting to a criminal offence, did not prevent the acquisition of a domicile of choice in England. She added, however, ‘that the legality of a person’s presence here is completely irrelevant … it may well be relevant to whether or not she had formed the required animus manendi. But this is a question of fact and not … a question of law’.111 Indeed, Baroness Hale believed that it would have been absurd to conclude that, despite illegal residence, the wife’s capacity to make a will, succession to her movable property and her children’s claims against her estate (all issues governed by the law of the place of domicile) were not determined by the law of England, given her connections with the country.112 In a concurring speech, Lord Hope of Craighead, who reverted to Roman principles of domicile, added that a sharp distinction should be made between the assessment of domicile for the purposes of private law and a

107. (1993) 17 Fam LR 141. 108. Ah Yin v Christie (1907) 4 CLR 1428 at 1431; Solomon v Solomon (1912) 29 WN (NSW) 68; cf Jablonowski v Jablonowski (1972) 28 DLR (3d) 440. 109. [2005] 3 All ER 912; C Forsyth, ‘The Domicile of the Illegal Resident’ (2005) 1 Journal of Private International Law 335; P Rogerson, ‘Illegal Overstayers Can Acquire a Domicile of Choice or Habitual Residence in England’ [2006] Cambridge Law Journal 35. 110. [2005] 3 All ER 912 at 916, 919–20. 111. At 930. 112. At 929.

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person’s public law status as an illegal immigrant.113 Further, the courts were bound not to apply the public policy of a foreign country, so illegal residence could plainly not be relevant to assessing whether domicile arose in a foreign place.114 Mark is a sensible outworking of general principles of domicile. There seems no reason why the private law questions governed by domicile should not be determined by the law of the place where a person might be an illegal resident, unless at some point the private rights and duties that domicile determines intrude on basic policies of the public law or immigration control. This would not occur, however, in a case like Mark. It may nevertheless be the case that a person who is living in exile and is not permitted to return permanently in a country cannot have the necessary factum and animus to acquire a domicile of choice.115

Revival of original domicile 10.30  At common law, a domicile of choice is abandoned if the person both leaves the place of chosen domicile and intends to do so permanently or indefinitely.116 Thus, as in the case of an acquisition of a domicile of choice, it is necessary to show both residence (elsewhere) and intention to abandon it. If a domicile of choice is abandoned without a domicile of choice arising in a new place, the domicile of origin is revived.117 10.31  When a court is determining the domicile of a person for some time after 1 July 1982, a domicile of choice is only abandoned when a new domicile of choice arises. This is because the Domicile Acts abolish the doctrine of the revival of the domicile of origin, and provide that the domicile that a person has continues until the person acquires a different domicile.118

Nationality 10.32  The public international law tends to make a distinction between ‘nationality’ and ‘citizenship’, although for its own purposes only nationality is a relevant personal connection with a nation state — indeed, it amounts to a closer personal connection with that state than with any other.119 In some countries, notably the United States, a distinction is made between citizens, who hold full political and personal rights in the United States, and nationals, who belong to its territories and dependencies but who do not have the full political rights of citizens. Australian municipal law makes no distinction between Australian citizens and nationals, and the terms are synonymous. However, Australian legislation does sometimes refer to ‘nationals’ of foreign countries, in which case it might embrace people who, while not technically ‘citizens’ under the foreign law, might be recognised as ‘nationals’. The public

113. 114. 115. 116. 117. 118. 119.

At 918. At 919. Cf Ferreira v Stockinger [2015] NZHC 2916 at [12]. Re Marett (1887) 36 ChD 400 at 407; Inland Revenue Commissioners v Duchess of Portland [1982] Ch 314. See 10.15–10.16. Domicile Act 1982 (Cth) s 7; Domicile Act 1979 (NSW) s 6; see also 10.16. Nottebohm Case (Second Phase) (Liechtenstein v Guatemala) [1955] ICJ Rep 4 at 23; J Crawford, Brownlie’s Principles of Public International Law, 8th ed, Oxford University Press, Oxford, 2012, p 513.

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international law also recognises corporations as holding nationality, where Australian municipal law ascribes neither Australian citizenship nor nationality to companies. 120

10.33  In many respects, the shape of Australian citizenship law has reflected a transition from an older, feudal conception of allegiance to liberal ideas of a person’s rights within the political community and republican ideas of participation and contribution to the nation’s political life.121 This is especially marked in Australian citizenship law’s preparedness to recognise multiple nationalities, a recognition which was only given comprehensively by the Australian Citizenship Legislation Amendment Act 2002 (Cth). The earlier conception of Australian citizenship inherited the assumptions that lay beneath the status of a British subject and, therefore, the idea of exclusive loyalty to the Crown and ‘subjection’ to its authority. It is easier to reconcile multiple nationalities with conceptions that depend on recognising a person’s rights in, or responsibilities to, a given community than with the assumption of loyalty.122 However, the recognition of multiple nationalities often makes citizenship an unsuitable connection in questions of choice of law, where the aim is to identify a single law of the cause. More than one law of the place of nationality (lex patriae) will necessarily point the court to different laws of the cause.123 10.34  In most cases, citizenship is easier to establish than domicile because evidence of citizenship is often available through the official records of the government of the relevant country. In this section, consideration is given to Australian citizenship, foreign nationality, and multiple nationalities.

Australian citizenship 10.35  Until 1949, there was no separate status of Australian citizen. As with the rest of the British Empire and Commonwealth, the nationality of any Australian was that of British subject. In 1946, Canada became the first of the dominions in the Commonwealth to introduce its own citizenship, and a Commonwealth Conference followed in the next year to consider how other dominions could establish a citizenship that was compatible with the retention of British subject status. This eventually led to the passage of the Nationality and Citizenship Act 1948 (Cth), later called the Australian Citizenship Act 1948 (Cth). The Australian Citizenship Act 1948 commenced on 26 January 1949, and introduced the status of Australian citizen. However, as had been agreed at the Commonwealth Conference, the 120. Crawford, above n 119, pp 527–30. 121. See K Rubenstein, Australian Citizenship Law in Context, Lawbook Co, Sydney, 2002, pp 4–5. 122. However, see Boll’s view that nationality (and citizenship) are still marked by allegiance; especially nationals’ duties arising by a state’s power to demand military service: A M Boll, ‘Nationality and Obligations of Loyalty in International and Municipal Law’ (2004) 24 Australian Yearbook of International Law 37. 123. The more common occurrence of multiple citizenships has seen a growing reluctance to rely exclusively on citizenship in the civil law countries of the European Union which pioneered citizenship as a personal connecting factor: see S Neuman, ‘Intellectual Property Rights Infringements in European Private International Law: Meeting the Requirements of Territoriality and Private International Law’ (2011) 7 Journal of Private International Law 583 at 585; M Ratieri, ‘Citizenship as a Connecting Factor in Private International Law for Family Matters’ (2014) 10 Journal of Private International Law 309. The law of nationality is nevertheless successfully used in choice of law questions relating to the formal validity of wills: see 21.19, 21.21 and 21.35.

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Australian Citizenship Act also retained the status of British subject so that Australian citizens were also British subjects and those who had acquired British subject status in other parts of the Commonwealth were recognised as British subjects for any purposes of Australian law. The old supranational status of British subject124 was gradually dismantled over the 1980s. In the United Kingdom itself, the British Nationality Act 1981 (UK) renamed Australian citizens (and citizens of other Commonwealth countries) as ‘Commonwealth citizens’ for the purposes of United Kingdom law.125 The status of British subject, so far as it was relevant for purposes of Australian law, was terminated from 1 May 1987,126 and from that date the designation ‘Australian citizen’ alone has been used.127 Furthermore, the Australian Citizenship Act 1948 was repealed, and the citizenship law refurbished, by the Australian Citizenship Act 2007 (Cth). Aspects of the Act of 1948 remain relevant to determining citizenship.

Acquisition of Australian citizenship 10.36  The Australian Citizenship Act provides for the acquisition of Australian citizenship in five ways: birth; adoption; descent; conferral; and residence. Birth 10.37  Any person born in Australia or an external territory between 26 January 1949 and 20 August 1986 is an Australian citizen. Any person born in Australia after 20 August 1986, where at least one parent is an Australian citizen or a permanent resident, is an Australian citizen. And any person born in Australia after 20 August 1986 who had been ordinarily resident in Australia for 10 years from the date of his or her birth is an Australian citizen.128 It has been held that a child’s 13-month absence from Australia specifically for medical treatment, and in circumstances where his parents did not work or intend to make the foreign country their home, did not interrupt his ordinary residence or deny him Australian citizenship.129 Transitional provisions in the Australian Citizenship Act ensured that a person who was a British subject before 26 January 1949 and who was born in Australia, an external territory (not a trust territory) or New Guinea is an Australian citizen.130 Adoption 10.38  Any person who is adopted by at least one Australian citizen and who is, at the time of the adoption, present in Australia as a permanent resident is an Australian citizen.131 If a person is adopted outside Australia by an Australian citizen, the adopted person may apply to become an Australian citizen.132 This adoption must be made in accordance with the

124. 125. 126. 127. 128. 129. 130. 131. 132.

Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 480; [2001] HCA 51. British Nationality Act 1981 (UK) s 37. Singh v Commonwealth (2004) 222 CLR 322 at 402. Australian Citizenship Amendment Act 1984 (Cth). Australian Citizenship Act 2007 (Cth) s 12. Kim v Minister for Immigration and Border Protection [2016] FCA 959 at [129]–[142]. Australian Citizenship Act 1948 (Cth) s 25(1). Australian Citizenship Act 2007 (Cth) s 13. Australian Citizenship Act 2007 (Cth) s 19C(1)–(2).

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Hague Convention on Intercountry Adoption or a bilateral arrangement that Australia has with another country.134 In these two cases, compliance with the adoption law of the foreign country is required.135 The adopting parent must have been present in Australia for at least two years before the adopted person can make the application.136 133

Descent 10.39  Australian citizenship can be acquired by a person born outside Australia who is registered at an Australian consulate and has one parent who is an Australian citizen. There are, however, limitations on the extent to which citizenship by descent can be acquired without some residence in Australia.137 There is also provision for a person born outside Australia, an external territory, or New Guinea before 26 January 1949, to acquire citizenship if the person’s parent was an Australian citizen on 26 January 1949.138 Conferral 10.40  The Minister for Immigration has a power to grant Australian citizenship to a person.139 The certificate is granted if, among other requirements, the person: • • • • • • • • • •

is a permanent resident; has attained the age of 18 years; understands the nature of the application for a conferral of citizenship; has been present in Australia as a permanent resident for at least four years before the application was made; has a basic knowledge of English; has an adequate knowledge of Australia and the responsibilities and privileges of citizenship; is of good character; makes a pledge of commitment; passes a citizenship test; and if granted a certificate of Australian citizenship, is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.140

There are other conditions relating to identity and character that might affect the exercise of the Minister’s discretion to grant citizenship. Citizenship cannot be granted 133. Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, 29 May 1993, Hague, No 33, implemented by the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth). 134. In this case the adoption must take place in accordance with the Family Law (Bilateral ArrangementsIntercountry Adoption) Regulations 1998 (Cth): see Australian Citizenship Act 2007 (Cth) s 19C(4). Australia has bilateral adoption arrangements with Ethiopia, South Korea and Taiwan: Family Law (Bilateral Arrangements-Intercountry Adoption) Regulations 1998 (Cth) Sch 1. 135. See also Australian Citizenship Act 2007 (Cth) s 19C(2)(b). 136. Australian Citizenship Act 2007 (Cth) s 19C(3). 137. Australian Citizenship Act 2007 (Cth) ss 15A–19A. 138. Australian Citizenship Act 2007 (Cth) s 16(3). 139. Australian Citizenship Act 2007 (Cth) s 20. 140. Australian Citizenship Act 2007 (Cth) ss 21–28.

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when a person receives an adverse security assessment or a qualified security assessment, unless they are otherwise stateless and were born in Australia or to an Australian citizen. Similarly, citizenship cannot be granted to anyone who is being prosecuted for a criminal offence, who is imprisoned, or who is within two years of having served a prison term of at least 12 months.141 Residence 10.41  It is only possible to acquire citizenship through residence where a person who was a British subject before 26 January 1949 had been, immediately before then, ordinarily resident in Australia, an external territory or New Guinea, for at least five years.142

Loss of Australian citizenship 10.42  It is possible for a person who is an Australian citizen to lose or be deprived of citizenship. It is also possible that any child of a person who loses or is deprived of Australian citizenship will, as a consequence, also cease to be a citizen.143 There are four ways that a person may lose or be deprived of Australian citizenship: subsequent acquisition of another nationality; service in hostile armed forces or a declared terrorist organisation; renunciation; and cancellation of granted citizenship. A wholesale cancellation of citizenship took place on the granting of independence to Papua New Guinea on 16 September 1975. From that day, any Australian citizen who became a citizen of the Independent State of Papua New Guinea ceased to be an Australian citizen.144 Subsequent acquisition of foreign nationality before 4 April 2002 10.43  Compatible with the older exclusive allegiance conception of nationality, s 17 of the Act of 1948 provided that Australian citizenship was lost when a citizen, aged at least 18, did ‘any act or thing’: … the sole or dominant purpose of which was to acquire the nationality of a foreign country; and the effect of which was to acquire the nationality of a foreign country.

The only ‘act or thing’ which had these consequences and which did not lead to loss of citizenship was an act of marriage.145 Thus a person who, under the law of the relevant foreign country, acquired a foreign nationality by marrying a national of that country did not lose Australian citizenship. Otherwise, it is suggested that s 17 should still be construed narrowly because of the serious consequences of loss of citizenship and because the rule did not, and does not, prevent another nationality being held with Australian citizenship if the foreign nationality was acquired before Australian citizenship is acquired.146 A narrow reading of s 17 means that the sole or dominant purpose a citizen had in acquiring the foreign nationality had to be determined by reference to his or her subjective intention. It was only when that subjective intention was to acquire a foreign nationality that the 141. 142. 143. 144. 145. 146.

Australian Citizenship Act 2007 (Cth) s 24(3)–(8). Australian Citizenship Act 1948 (Cth) s 25. Australian Citizenship Act 2007 (Cth) s 36. Papua New Guinea Independence (Australian Citizenship) Regulations (Cth) reg 4. Australian Citizenship Act 1948 (Cth) s 17(2). See 10.45.

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purpose requirement of s 17 is satisfied. If, when in truth applying for a foreign nationality, the Australian citizen mistakenly thought that he or she was merely having a pre-existing foreign nationality recognised, s 17 was not engaged and Australian citizenship was maintained.147 10.44  Even if Australian citizenship were lost under s 17, there remains a possibility that it could be resumed. Here, there must be an application to the Minister for Immigration. The Minister has power to approve a resumption of citizenship if satisfied that the person is of good character.148 The Minister cannot approve a resumption of Australian citizenship if the applicant is the subject of an adverse security assessment or a qualified security assessment, unless they are otherwise stateless and were born in Australia or to an Australian citizen.149 Approval for a resumption of Australian citizenship also cannot be given where the applicant is convicted of a national security offence or, if citizenship was initially held because the applicant was born in Australia, the applicant was convicted of a criminal offence and sentenced to at least five years’ imprisonment.150 Subsequent acquisition of foreign nationality from 4 April 2002 10.45  Section 17 was repealed by the Australian Citizenship Legislation Amendment Act 2002 (Cth), and the repeal took effect from 4 April 2002.151 The Act of 2007 maintained the repeal. An Australian citizen who acquires a foreign nationality from that date does not, thereby, lose Australian citizenship. The repeal effectively recognises more contemporary liberal and republican views of the nature of citizenship. However, it also removed the glaring illogicality in Australian citizenship law that s 17 created, in which multiple nationality with Australian citizenship could be held as long as the nationality was held before or at the time Australian citizenship was acquired, but not if acquired afterwards. The widespread recognition of multiple nationalities in other Western countries was also influential in the decision to repeal s 17. However, the repeal of s 17 was prospective, in that a loss of citizenship is still deemed to have occurred if the act by which a foreign nationality was acquired by an Australian citizen was done before 4 April 2002. The powers for the Minister to reinstate citizenship therefore remain available for those who lost Australian citizenship by the operation of s 17 before its repeal.152 Service in hostile armed forces or with declared terrorist organisation 10.46  A person will lose Australian citizenship when, if at least 14 years of age and a citizen of another country, they serve in the armed forces of a country at war with Australia or they serve with a declared terrorist organisation.153 The deprivation of citizenship in these cases is by operation of law, and developed from the old common law principle that 147. 148. 149. 150. 151. 152. 153.

Minister for Immigration, Local Government and Ethnic Affairs v Gugerli (1992) 36 FCR 68 at 74. Australian Citizenship Act 2007 (Cth) s 29(3). Australian Citizenship Act 2007 (Cth) s 30(4), (6). Australian Citizenship Act 2007 (Cth) s 30(5). Australian Citizenship Legislation Amendment Act 2002 (Cth) s 2, Sch 1. Australian Citizenship Act 2007 (Cth) s 29(3)(a)(i). Australian Citizenship Act 2007 (Cth) s 35. For a ‘declared terrorist organisation’, see Australian Citizenship Act 2007 (Cth) s 35AA.

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‘domicile of allegiance’ was deemed to have been abandoned when a man served in foreign armed forces.154 It was also the case that British subjects merely resident in an enemy state once lost British subject status.155 The present deprivation of citizenship under the Australian Citizenship Act, however, only occurs in narrowly defined conditions of active service against Australia. The traditional deprivation of citizenship for those citizens serving in war against Australia was extended in 2015 to those serving with defined non-state actors that are considered by the executive government to be actively hostile to Australia.156 The deprivation also does not occur unless multiple nationalities are held, to ensure that a person who is solely an Australian citizen would not, if deprived of citizenship, thereby be rendered stateless.157 Renunciation 10.47  A person who is an Australian citizen may renounce Australian citizenship if they are aged at least 18 and are also a national of a foreign country. The renunciation may also be made if the person is aged at least 18 and was born, or is ordinarily resident, in the foreign country but is unable to be a national of that country because they are an Australian citizen. The declaration of renunciation must be lodged with the Minister for Immigration, but is not effective unless the Minister registers it. A refusal to register can be made if it is in Australia’s interests that the person retains Australian citizenship.158 The amendments of 2015 also provided for renunciation of Australian citizenship by conduct, specifically where the person is involved in terrorist activities or a member of a declared terrorist organisation.159 The renunciation is deemed to occur when the relevant act of terrorism takes place.160 The Minister must give notice to the person on becoming aware that renunciation of citizenship by conduct has taken place,161 but it is not the giving of notice that gives rise to the loss of citizenship. It again occurs by operation of law. Executive deprivation 10.48  The Minister for Immigration has powers to deprive a person of Australian citizenship, but only in cases where the person had initially become a citizen by descent, adoption, resumption or conferral.162 First, in the case of anyone who became an Australian citizen by descent, adoption or resumption of citizenship, the Minister may revoke the citizenship when the person has been convicted of an offence relating to the application to become a citizen and it would be contrary to the public interest for the person to remain an Australian citizen.163 Second, for a person who has acquired a current Australian citizenship 154. 155. 156. 157. 158. 159. 160. 161. 162. 163.

Somerville v Lord Somerville (1801) 5 Ves Jun 750 at 776; 31 ER 839 at 853; Phillimore, above n 11, p 55. Singh v Commonwealth (2004) 222 CLR 322 at 399. Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth). See S Pillai and G Williams, ‘The Utility of Citizenship Stripping Laws in the UK, Canada and Australia’ (2017) 41 Melbourne University Law Review 845 at 871–88. Australian Citizenship Act 2007 (Cth) s 33. Australian Citizenship Act 2007 (Cth) s 33AA; Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth). Australian Citizenship Act 2007 (Cth) ss 33AA(2), (9). Australian Citizenship Act 2007 (Cth) ss 33AA(10)–(23). See 10.38–10.40, 10.44. Australian Citizenship Act 2007 (Cth) s 34(1).

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10.49

by resumption or conferral, the Minister may revoke citizenship when he or she believes it would be contrary to the public interest for the person to continue as an Australian citizen, and the person: • made a misleading representation or omission in the application for citizenship; • was convicted of a serious offence before citizenship was granted; or • qualified for citizenship as a result of migration-related fraud.164 In this second case, Australian citizenship cannot be revoked if, by doing so, the person would be rendered stateless.165

Foreign nationality 10.49  A question may arise as to whether the law of Australia will regard a person as being a national of a foreign country. In this respect, a distinction between citizenship of foreign countries and citizenship of other Commonwealth countries is no longer of significance in private law. Since the abolition of a status of British subject applicable throughout the Empire and Commonwealth,166 citizens and nationals of Commonwealth countries are considered foreign.167 This question — the recognition of foreign nationality under the law of Australia — is slightly different to the question whether the law of the foreign country would regard the person as being a national of that country. The general principle at common law is, certainly, that the law of the forum will regard a person as being a national of a foreign country when the law of that foreign country regards that person as a national.168 This has been consistently reinforced by the High Court of Australia in a series of decisions dealing with the disqualification of a person from being elected to the federal Parliament under s 44(i) of the Australian Constitution, on the ground that a person ‘is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power’. Although not all aspects of the decisions on s 44(i) would appear to apply to determinations of foreign nationality for the purposes of the private law,169 the High Court has consistently affirmed the common law rule that, ‘[w]hen the issue in an Australian court is simply whether an individual is a national of a foreign power, that issue is ordinarily determined by reference to the municipal law of that foreign power’.170 It would also appear that, in general, the specific rights and duties attaching to the foreign nationality

164. Australian Citizenship Act 2007 (Cth) s 34(2). 165. Australian Citizenship Act 2007 (Cth) s 34(3)(b). There are also powers to revoke Australian citizenship in cases where it was conferred under ‘special residence’ conditions: Australian Citizenship Act 2007 (Cth) s 34A. 166. See 10.35. 167. Nolan v Minister for Immigration & Ethnic Affairs (1988) 165 CLR 178 at 184–5; Sue v Hill (1999) 199 CLR 462 at 503; Singh v Commonwealth (2004) 222 CLR 322 at 350–1, 372–3. 168. Stoeck v Public Trustee [1921] 2 Ch 67 at 82; Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249 at 266–7, 282. 169. See 10.52. 170. Sykes v Cleary (1992) 176 CLR 77 at 112; see also at 131; R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 649; Sue v Hill (1999) 199 CLR 462 at 528–9; Re Canavan (2017) 349 ALR 534 at 544; Re Gallagher (2018) 355 ALR 1 at 5.

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are also determined by the relevant foreign law.171 So, in Re Canavan,172 one of the foreign nationalities being considered was that of a British Overseas Citizen — a status which, under the law of the United Kingdom, did not at the time give rights of residence in the United Kingdom nor represent any existing allegiance to the United Kingdom. Therefore, while the law of Australia recognised the status of a British Overseas Citizen, it did not consider that it was one that, under the law of Australia, gave rise to the relevant Senator being a subject or citizen of a foreign power.173 10.50  A related question is when the law of Australia recognises the loss or discharge of foreign nationality. This also is, in general, to be determined by the law of the relevant foreign country. In Sykes v Cleary (No 2),174 Mason CJ, Toohey and McHugh JJ observed that a person might well have thought that they discharged any foreign nationality they had held when, in an Australian naturalisation ceremony, the person had taken the oath of allegiance to the Queen of Australia which included an express renunciation of other allegiances.175 However, in Sykes their Honours did not consider that the taking of that oath of allegiance had discharged foreign nationalities when the procedures for the discharge of the foreign nationalities under the relevant foreign laws had not also been followed.176 Brennan J held expressly that a man’s taking of the oath of allegiance (and its renunciations) was ‘ineffective to alter his status and obligations under the law of his native country’.177 Accordingly, in Re Gallagher178 it was accepted that Australian law did not consider British nationality to be discharged until, as specified under United Kingdom law, the British Home Office had itself registered a declaration of renunciation.179 10.51  There are some limited circumstances in which an Australian court will recognise the existence (or the discharge) of a foreign nationality even though the law of the relevant foreign country does not recognise the nationality (or its discharge). For the most part, these situations arise in wartime. First, in Ex parte Weber180 the House of Lords recognised that a man would in the United Kingdom be considered as a German national, and an enemy alien, even though, under German law, he had lost German nationality because of a lengthy period of residence outside the German Empire. The man had not assumed any other nationality and, although the House of Lords was unwilling to comment on the possibility of his being stateless, it nevertheless considered it relevant that on a return to Germany he would have resumed German nationality and have been liable to military service.181 The same rule applied when, under German law, the loss of nationality took place by renunciation rather than by operation of law.182 Second, the law of Australia may not recognise an attempt 171. 172. 173. 174. 175. 176. 177. 178. 179. 180. 181. 182.

Re Gallagher (2018) 355 ALR 1 at 5. (2017) 349 ALR 534. At 560–3. (1992) 176 CLR 77. At 108. Ibid. At 112. (2018) 355 ALR 1. At 6. [1916] 1 AC 421. At 424. R v Superintendent of Vine Street Police Station; ex parte Liebmann [1916] 1 KB 268 at 274, 277.

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by an enemy country to deprive its citizens of their nationality. Third, there is a special exception where a country attempts to change a person’s nationality and that change amounts to a grave infringement of human rights. In Oppenheimer v Cattermole (Inspector of Taxes),184 the House of Lords was considering the recognition in the United Kingdom of a German decree of 1941 that extinguished the German nationality of German Jews (and only Jews) resident outside Germany, and that confiscated their property. Lord Cross of Chelsea discussed the incompatibility of the German decree with public international law and that the United Kingdom should give effect to ‘clearly established rules of international law’.185 He ultimately decided that ‘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’.186 Lords Hodson and Salmon agreed with Lord Cross, where Lord Hailsham of St Marylebone and Lord Pearson tended to support the view that German law should still determine the question of German nationality. The majority approach in Oppenheimer, though, was accepted in Australia in Sykes v Cleary (No 2) — where Gaudron J stated that ‘a court will not apply a foreign citizenship law which does not conform with established international norms or which involves gross violation of human rights’.187 The High Court has subsequently endorsed this formulation of the exception.188 183

10.52  The High Court’s decisions on the recognition of foreign nationality have conceded a fourth exception where, even if the foreign law does not recognise that the foreign nationality has been discharged, Australian law may recognise that the person is not the subject or citizen of a foreign power. This is where the person has taken reasonable steps in accordance with the foreign law to discharge the foreign nationality – although not all necessary steps under the foreign law have been taken and so, under the foreign law, nationality has not been discharged.189 However, it is suggested that this exception is not available when the question of a person’s foreign nationality arises under the private law. The purpose of this exception is to ensure that, under s 44(i) of the Australian Constitution, an Australian citizen cannot be made ‘irremediably incapable’ of being elected to Parliament because a foreign nationality law makes it impossible or extremely difficult to renounce the foreign nationality.190 The exception therefore seems to be determined by s 44(i) itself as a ‘constitutional imperative’, so as to prevent foreign laws effectively denying an Australian citizen the right to enter Parliament.191 It does not appear to be a common law exception to the general rule that the relevant foreign law determines the existence or discharge of foreign nationality, and so would appear to be unavailable in questions relevant to the private law.

183. 184. 185. 186. 187. 188. 189. 190. 191.

R v Home Secretary; Ex parte L [1945] KB 7; Lowenthal v Attorney-General [1948] 1 All ER 1 All ER 295. [1976] AC 249. At 277. At 277–8. Sykes v Cleary (1992) 176 CLR 77 at 135–6. Sue v Hill (1999) 199 CLR 462 at 529–30. Sykes v Cleary (1992) 176 CLR 77 at 107, 113–14; Re Canavan (2017) 349 ALR 534 at 545–6. Re Canavan (2017) 349 ALR 534 at 545–6; Re Gallagher (2018) 355 ALR 1 at 5. Re Canavan (2017) 349 ALR 534 at 545–6; Re Gallagher (2018) 355 ALR 1 at 5.

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Multiple nationalities 10.53  Sykes v Cleary indicates that, at common law, a person can be an Australian citizen and the national of a foreign country at one and the same time.192 The pledge of commitment in the Australian Citizenship Act does not appear to be sufficient to discharge any foreign nationality that the person being granted Australian citizenship might hold.193 However, it should be emphasised that, if acts were taken before 4 April 2002 to acquire a foreign nationality, the foreign nationality will generally only be held with Australian citizenship where the foreign nationality was acquired before Australian citizenship was granted. This extends to the case where a person born an Australian citizen is also born with a foreign nationality. However, when an act acquiring foreign nationality is done from 2 April 2002, the repeal of s 17 of the Act of 1948 means that Australian citizenship can be held simultaneously with the foreign nationality regardless of which was held first.194

Residence 10.54  The residence of a person became a more common connection with a place in multi-state cases in the 20th century. It is still relatively uncommon in choice of law rules: questions of the formal validity of wills can be determined by the law of the place of habitual residence,195 and under the Hague Child Protection Convention questions concerning parental responsibility are usually governed by the law of the place of habitual residence.196 However, concepts of residence are more frequently used in determining questions of jurisdiction and the recognition of judgments, and are prominent in both respects in multistate family law cases. 10.55  The legislation in Australia refers to three different types of residence: residence (alone); ordinary residence; and habitual residence. Unlike domicile and citizenship, none of these are fixed concepts and may, depending on the legislation in which the concept is used, differ in scope and meaning. However, each of the terms can be regarded as a species of residence and, for example, the meaning of ‘habitual residence’ in one statute is more likely to parallel the meaning of ‘habitual residence’ in another, than it is to parallel the meaning of ‘ordinary residence’ in any statute.197 Having said that, the differences can be overstated. English courts accept that ‘habitual residence’ and ‘ordinary residence’ are interchangeable.198 In the Family Law Act 1975 (Cth), the term ‘ordinarily resident’ is defined as including ‘habitually resident’199 — and so can possibly mean something more. It could be reasonably expected that, despite the fact that different concepts of residence themselves shift in meaning in different legislative contexts, ‘residence’, ‘ordinary residence’ and ‘habitual residence’ will at least approximate each other in similar cases. 192. 193. 194. 195. 196. 197. 198. 199.

(1992) 176 CLR 77 at 105, 135. Australian Citizenship Act 2007 (Cth) s 27, Sch 1. See 10.43–10.45. See 21.19 and 21.36. See 15.27. See 15.12; Bunyon v Lewis (No 3) [2013] FamCA 888 at [179]–[180], [188]–[189]. Ikimi v Ikimi [2002] Fam 72; Mark v Mark [2005] 3 All ER 912 at 925. Family Law Act 1975 (Cth) s 4.

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Residence 10.56  In Australia, the courts have sometimes considered that the term ‘residence’ (used without an adjective) is practically indistinguishable from the term ‘ordinary residence’.200 That may well be the assumption to begin with, in which case it seems that ‘residence’ does not arise by mere presence in the place.201 In order to be resident in a place, the person’s presence there must have some degree of relative permanence. Thus, in Re an Infant202 it was considered that a person’s residence was his or her permanent place of abode. 10.57  This understanding of residence can be displaced. The mere fact that the term ‘residence’ is used instead of ‘ordinary residence’ can also suggest that the two concepts are not synonymous. In Re Taylor; Ex parte Natwest Australia Bank Ltd,203 Lockhart J thought that ‘ordinary residence’ connoted a more significant connection with the country than did the term ‘residence’. So, taking ‘ordinary residence’ as the more established concept, he held that the term ‘residence’ must include something more transitory than ordinary residence. A person could be resident in a place when present there on business or on holidays.204 10.58 In Taylor, the implication was drawn that a person could therefore, at one and the same time, be resident in two or more different places. ‘Residence’ could be casual or intermittent. So, where a person’s matrimonial home is in Australia or there is an intention to return to Australia, the person can remain a resident of Australia even though an extended presence in Ruritania also makes the person a resident there. However, even on this understanding, the idea of residence must involve more than mere presence in the place. Thus, even if more significant presence in the place for recreational purposes can constitute residence, presence as a traveller through the place does not.205 Again, unlike domicile, residence is not an exclusive connection with a place. Nevertheless, it should be recalled that the meaning of ‘residence’ can vary with context. For the purposes of assessing the right to invoke diversity jurisdiction under s 75(iv) of the Commonwealth Constitution, for example, a person can be resident in only one state of Australia.206

Ordinary residence 10.59  The term ‘ordinary residence’ is better defined, having had extended consideration in the House of Lords in Akbarali v Brent London Borough Council.207 The case concerned

200. See Caldwell v Caldwell [1946] SASR 185; Jakstas v Jakstas [1957] QWN 17; Judd v Judd (1958) 75 WN (NSW) 147 at 149; Norman v Norman (No 3) (1969) 16 FLR 231 at 234; Re an Infant [1981] Qd R 225 at 226–7; Re Application for Adoption of M (1992) 112 ACTR 39 at 45. 201. There is older authority that does seem to treat ‘residence’ as equivalent to ‘presence’: Berry v Shead (1886) 7 NSWLR 39 at 48; Herman v Meallin (1891) 8 WN (NSW) 38 at 39. 202. [1981] Qd R 225 at 226–7. 203. (1992) 37 FCR 194 at 198. 204. See also Stransky v Stransky [1954] P 428; Napiat Pty Ltd v Salfinger (No 7) (2011) 202 FCR 264; [2011] FCA 1322. 205. Lethbridge v Lethbridge (1902) 19 WN (NSW) 128; see also Stransky v Stransky [1954] P 428; Norman v Norman (No 3) (1969) 16 FLR 231 at 235–6. 206. See 2.18–2.23. 207. [1983] 2 AC 309.

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the interpretation of the term ‘ordinary residence’ in the Education Act 1962 (UK). This Act provided that a student, ordinarily resident in the United Kingdom for three years before commencing a course, was entitled to financial assistance. Five students had been refused assistance. This refusal was reviewed in the High Court of Justice, where one student succeeded in establishing his residence in the United Kingdom because he had permission to settle there permanently. The others failed because they were only in the country temporarily to study. However, an appeal to the House of Lords succeeded on the ground that these students also had been ordinarily resident in the United Kingdom for the required period. 10.60 In Akbarali, Lord Scarman expounded the concept of ordinary residence at length. Lords Lowry, Roskill and Brandon agreed with his speech. Lord Scarman held that the central idea in the concept of ordinary residence was that it:208 … refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as a part of the regular order of his life for the time being, whether of short or of long duration.

It followed from this definition that, first, the residence in the country must be legal before it could constitute ‘ordinary residence’ and, so, residence in breach of immigration laws does not qualify. This was accepted as the position in Australia.209 However, a requirement of legal residence must now be reconsidered. In Mark v Mark,210 the House of Lords thought that this aspect of Akbarali was an obiter dictum and refused to accept it. While legality might be relevant to the fact that residence is ‘habitual’ — or ‘ordinary’ — according to Baroness Hale of Richmond illegal residence did not preclude habitual (and presumably ordinary) residence from arising.211 And while in Tirta v Lim, the Family Court of Australia assumed that ordinary residence in Australia could not be established when it was illegal,212 this conclusion was reached briefly and without any reference to Akbarali or Mark. Tirta v Lim cannot be regarded as strong authority challenging the position of Mark. Second, according to Akbarali the intentions of the person claiming ordinary residence are relevant in two respects. That person’s presence must be voluntary, so that ‘[e]nforced presence by reason of kidnapping or imprisonment, or a Robinson Crusoe existence on a desert island with no opportunity to escape, may be so overwhelming a factor as to negative the will to be where one is’.213 The purpose in being in the place must also be a settled purpose. This does not mean there must be an intention to remain in the place indefinitely. A temporary residence can still be for a settled purpose. It can be for ‘[e]ducation, business or profession, employment, health, family, or merely love of the place’ or some other reason. Ultimately, all there need be is a ‘sufficient degree of continuity’ with the place.214 If a person is, for financial reasons, unable to leave a place where they have been for a short time, it is unlikely

208. 209. 210. 211. 212. 213. 214.

At 343. In the Marriage of Woodhead (1997) 23 Fam LR 559 at 566. [2005] 3 All ER 912. At 926. [2012] FamCA 63 at [2]. [1983] 2 AC 309 at 344. At 344.

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that ordinary residence there will be established. It seems that issues like a person’s social relations, interests and conveniences can be taken into account when considering where the person is ordinarily resident.216 215

10.61  As with ‘residence’, it is possible for a person to be ordinarily resident in two or more places at the same time.217 However, it is less likely that a person will have multiple ordinary residences as a person’s ordinary residence rests on a more settled connection with the place than will need to be the case with some understandings of ‘residence’.

Habitual residence 10.62  ‘Habitual residence’ is a concept that is used in the harmonised rules of court for establishing jurisdiction over defendants outside Australia and New Zealand.218 It is the most important connection used in the Hague Child Abduction Convention and the Hague Child Protection Convention, both of which have legal force in Australian municipal law. These are discussed at length in Chapter 15. It is also used in choice of law rules applicable to the formal validity of wills.219 10.63  The term ‘habitual residence’ is not defined in any of the statutes or Conventions that use it. There is some authority to suggest that ‘habitual residence’ is synonymous with ‘ordinary residence’,220 and this is firmly established in England.221 As noted earlier, in the Family Law Act the term ‘ordinarily resident’ is defined as including ‘habitually resident’222 — and so the term ‘ordinary residence’ has potential to mean something more.223 The High Court of Australia also seemed to assume that ‘ordinary residence’ and ‘habitual residence’ were synonymous in its decision in LK v Director-General, Dept of Community Services.224 However, there is some adjudication that suggests that the concepts are again different, with ‘habitual residence’ requiring a longer period of residence to be established than does ordinary residence. Strangely, in making this point in Cruse v Chittum,225 Lane J held that the period of residence required for establishing habitual residence would be comparable to that required for establishing domicile. This cannot really be so, since (provided the required intention exists) domicile in a place can arise with extremely short periods of residence.226 In the leading decision on this point, Re J (A Minor) (Abduction),227 Lord Brandon of

In the Marriage of El Oueik (1977) 29 FLR 171 at 177. Clarke v Clarke [1964] VR 773 at 776. Re Norris (1888) 4 TLR 452; Robson v Robson [2010] QSC 378 at [37]. See 2.47. See 21.19 and 21.36. Kapur v Kapur [1984] FLR 920; V v B (A Minor) (Abduction) [1991] 1 FLR 266 at 271–2. Mark v Mark [2005] 3 All ER 912 at 925. Family Law Act 1975 (Cth) s 4. See 10.55. (2009) 237 CLR 582 at 596–8; [2009] HCA 9. [1974] 2 All ER 940 at 942–3. See 10.24. The distinction was reinforced in Director-General, Dept of Communities (Child Safety Services) v Hardwick [2011] FamCA 553. 227. [1990] 2 AC 562 at 578.

215. 216. 217. 218. 219. 220. 221. 222. 223. 224. 225. 226.

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Oakbrook required an ‘appreciable’ period of residence for it to be considered ‘habitual’.228 Indeed, a person could lose habitual residence in one place and, because the residence in another place was not appreciable, not acquire habitual residence in the other. Under Lord Brandon’s test a person could become resident in a place and domiciled there before they could be considered to have lived there for a sufficiently long period to be regarded as a ‘habitual’ resident of the place. However, if the person were returning to a place where they had formerly been habitually resident, a short period of residence might be enough to show that this place was again the place of habitual residence.229 The Family Law Act provides that to be ‘ordinarily resident’ includes being ‘habitually resident’,230 which suggests that, for the Child Abduction and Protection Conventions that receive their force in Australia through the Family Law Act, habitual residence must be harder to establish than ordinary residence. Nevertheless, LK was a decision involving the Child Abduction Convention, and the High Court’s approach to habitual residence did not proceed on that assumption. 10.64  Re J (A Minor) (Abduction)231 therefore shows that, unlike domicile, it is legally possible not to have an habitual residence at all.232 This may create difficulties under the Child Abduction Convention, where the place of habitual residence provides the court that is the preferred venue for deciding questions about the welfare of the child, and the Child Protection Convention, where the law of the place of habitual residence is used as the governing law for questions of parental responsibility. On the other hand, the Child Abduction Convention and the Child Protection Convention also show why, like domicile, it is unlikely, though not impossible, that a person will have more than one place of habitual residence.233 The Full Court of the Family Court has adopted this view of habitual residence, at least for the purposes of the Child Abduction Convention. It accepts that there is likely to be only one place of habitual residence.234 10.65  It is also possible that the meaning of habitual residence may differ from instrument to instrument. For instance, in Office of the Children’s Lawyer v Balev,235 the Supreme Court of Canada considered that three different approaches had emerged in the law identifying the place of habitual residence: the parental intention approach, the child-centred approach and the hybrid approach.236 This classification makes sense in the context of the Child Abduction Convention and the Child Protection Convention, but does not, for instance, respond to questions of habitual residence relevant to the formal validity of wills. However, in all cases the question of the relevant person’s intention about residence does arise.

228. See also Director-General, Department of Communities, Child Safety and Disability Services v Ibbott (No 2) [2015] FamCA 698 at [54]. 229. N v N [2000] 3 FCR 84. 230. Family Law Act 1975 (Cth) s 4(1). 231. [1990] 2 AC 562. 232. See also LK v Director-General, Dept of Community Services (2009) 237 CLR 582 at 594. 233. At 593–4. 234. Cooper v Casey (1995) 18 Fam LR 433 at 436. 235. 2018 SCC 16. 236. At [39], [109].

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10.66 In Balev, the majority in the Supreme Court of Canada (McLachlin CJ and Abella, Karakatsanis, Wagner, Gascon and Brown JJ) considered that, in Child Abduction Convention cases, the High Court of Australia had adopted a hybrid approach to questions of habitual residence.238 This is a search for ‘the focal point of the child’s life — “the family and social environment in which its life has developed”’.239 The approach means the court may take into account considerations such as ‘the duration, regularity, conditions and reasons for the child’s stay’ in the place,240 and the circumstances of the parents and their intentions.241 The majority in Balev held that Canadian courts should take the hybrid approach. 237

10.67  The High Court of Australia adopted the hybrid approach in LK v Director-General, Dept of Community Services,242 a Child Abduction Convention case where the relevance of intention to the determination of the place of habitual residence was significant. The husband and wife, who were separated in September 2005, lived in Israel and then had four children between the ages of 15 months and eight years. All children lived with the mother, who was an Australian citizen. In May 2006, the mother took the children with her to Australia on return air tickets. However, before travelling to Australia she had arranged for the children’s Australian citizenship (acquired by descent) to be registered, and had arranged for schooling for them in Australia. The father knew that the mother and children would return to Israel only if he agreed to be reconciled with the mother and if they resumed cohabitation. He also understood that, if he persisted in his intention to live apart from the mother, she and the children would remain in Australia. Two months after the mother’s and children’s arrival in Australia, the father advised that he wanted a divorce but also that he wanted the children to return to Israel. Under the Child Abduction Convention, the children would have to be returned to Israel if it were found that they were habitually resident there at the time the father demanded their return.243 In the Family Court, Kay J held that the children were at that time habitually resident in Israel. This decision was confirmed by the Full Court of the Family Court.244 But in a joint unanimous judgment, the High Court of Australia (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) reversed this decision, and concluded that, two months after they had arrived, the children were habitually resident in Australia. 10.68  The High Court in LK held that, in determining habitual residence, the ‘search must be for where a person resides and whether residence at that place can be described as habitual’.245 Although the term ‘hybrid’ was not used, the court referred to all of the factors that the Supreme Court of Canada subsequently thought were relevant in Office of the Children’s Lawyer v Balev.246 The High Court in LK considered that, when undertaking this enquiry, a wide variety of circumstances can be taken into account, and ‘the past and present 237. 238. 239. 240. 241. 242. 243. 244. 245. 246.

2018 SCC 16. At [54]. At [43]. At [44]. At [45]. (2009) 237 CLR 582; [2009] HCA 9. See 15.29. Kilah v Director-General, Dept of Community Services (2008) 39 Fam LR 431; [2008] FamCAFC 81. LK v Director-General, Dept of Community Services (2009) 237 CLR 582 at 592; [2009] HCA 9. 2018 SCC 16.

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intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person’s connections with a particular place of residence’.247 Indeed, a person’s intention will usually be relevant in the determination of habitual residence, although it is not to be given ‘controlling weight’.248 In examining how intention might be expressed, the High Court noted, first of all, that a person’s intentions are not always clearly formed, and may be ambiguous.249 In LK, the mother’s intentions were certainly ambiguous; she had made arrangements to settle in Australia, but was prepared to return to Israel if the father wished to be reconciled with her. Second, a person may secure a place of habitual residence in a new country even if they do not have ‘a singular and irrevocable intention not to return’ to the old one.250 Third, when the habitual residence of a child is being determined under the Child Abduction Convention, it is not merely the intention of the parent who has day-to-day care of the child that is relevant to the child’s habitual residence. The intentions that both parents have for the child are relevant.251 As a factual determination in LK, the High Court accepted that, at the time of the departure from Israel, both parents had the intention that the children would only be returned to Israel if the mother and father were reconciled. However, the critical time for determining habitual residence was later, when the father asked for the children to be returned to Israel. This was the time of the alleged wrongful detention of the children. At this point, the High Court noted that the intentions of the parents at that time were not the only factors relevant to habitual residence, and that by that time habitual residence in Australia had been established.252 10.69  Otherwise, habitual residence is not fettered by the technical, and artificial, means of identifying a person’s domicile.253 Accordingly, although a child may have a domicile dependent on one of the child’s parents — usually the father — it is now established that this does not affect the determination of the child’s place of habitual residence. As was concluded in LK, it will usually be the intentions of both parents that are relevant to the determination of the child’s place of habitual residence.254 Unlike domicile, the unilateral action of one of the parents of a child ordinarily cannot change the habitual residence of that child, and is not given ‘controlling weight’.255 Habitual residence may still be in a place where both 247. At 592. 248. At 594. See also Director-General, Dept of Communities (Child Safety Services) v Hardwick [2011] FamCA 553 at [28]. However, the way ‘in which intention is applied in the establishment of domicile of choice is illustrative’: Secretary, Attorney-General’s Dept (Cth) v Donald [2011] FamCA 482 at [56]. 249. At 594–5. 250. At 595; cf Mhambrey and Vairaja [2018] FamCAFC 120 at [64]. 251. At 595–6. 252. At 600–1. 253. At 592–3. 254. At 595–6; Department of Communities, Child Safety and Disability Services v Williams [2016] FamCA 227 at [40]; eg Department of Family and Community Services v Raelson [2014] FamCA 131 at [94]–[96]; Hibbert and Hetley [2018] FamCA 1 at [140]–[141], [145]–[146]. 255. Re S (Minors) (Child Abduction: Wrongful Retention) [1994] 1 FCR 83 at 95; Re KM (A Minor) (Habitual Residence) [1996] 2 FCR 333 at 339; N v N [2000] 3 FCR 84; Director-General, Department of Communities, Child Safety and Disability Services v Ibbott (No 2) [2015] FamCA 698 at [47]; Department of Communities, Child Safety and Disability Services and Sabeer [2017] FamCA 252 at [173]; Hibbert and Hetley [2018] FamCA 1 at [148].

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parents contemplated that the child would remain permanently even though one parent may not be prepared to move there.256 However, if one parent has had sole custody of the child for most of the relevant period, then that parent’s habitual residence will be more significant.257 In N v N,258 the parents had moved from England to Spain, but had only been there for three months when the mother left, with the children, and returned to England. It would defeat the purposes of the Child Abduction Convention were a parent, by an action like this, able to change a child’s habitual residence and ensure that the child’s interests were dealt with in the place to where the parent had removed the child. Black J confirmed the principle that the unilateral action of a parent could not change a child’s place of habitual residence. In N v N this did not prevent the conclusion that, despite the time spent in Spain, the move there had been, for the mother and children, without a settled intention and conditional on improving the state of the parents’ marriage. The marriage did not improve, which is why the mother returned to England. As a result, although the father’s continued presence in Spain meant that he had acquired an habitual residence there, at the time of the children’s return to England, they and the mother still had an habitual residence in England. 10.70  As with ordinary residence, it is possible to be habitually resident in a place even when it is intended to be there only temporarily.259 Naturally, a temporary visit to a place for holidays is not sufficient for it to become the place of habitual residence.260

Reform 10.71  For a common law concept, domicile has proved to be unusually inflexible in the course of its development. Apart, perhaps, from the recognition of federal domicile,261 and changes to the intention required to establish a sufficient animus manendi for a new domicile of choice,262 its 19th century structures have been remarkably resilient. The advantage that domicile has over other personal connections with legal systems is that a person is deemed always to have a domicile, and yet at any one point to have one domicile only. If it is necessary to identify a personal law that can definitively determine rights and liabilities, then the fundamental structures of domicile provide that in ways that citizenship and residence may not. However, especially for individuals who do not have legal capacity, the technicalities of domicile can attribute a personal law that, in substance, has little real connection with them. 10.72  The attempted reforms of domicile have demonstrated how, at a basic level, it remains a conceptually unsatisfactory connection. In responding to increasing numbers 256. Mhambrey and Vairaja [2018] FamCAFC 120 at [59]. 257. Director-General, Department of Communities, Child Safety and Disability Services v Ibbott (No 2) [2015] FamCA 698 at [50], [67]–[68]. 258. [2000] 3 FCR 84. 259. Mhambrey and Vairaja [2018] FamCAFC 120 at [62]. 260. Director-General, Department of Communities, Child Safety and Disability Services v Tallulah [2015] FamCA 4 at [83]–[84]. 261. See 10.8. 262. See 10.25.

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of ex-nuptial children and the consequences of broken families and blended families, the Domicile Acts ended up reinforcing the important role that patrilineal descent had for the family and succession law of the 19th century. The father’s domicile became even more likely to determine a child’s domicile than it would have before the Acts were passed.263 However, the legislation dealing with the status of children born through the use of reproductive technology subsequently swung the emphasis to the domicile of the mother, this being the inevitable result of children born as a consequence of sperm donation or in-vitro fertilisation often being deemed legally fatherless.264 As a result of both sets of reforms, the law of original domicile has become excessively complex. It is not possible to determine the domicile of individuals born in relatively common circumstances without recourse to highly expert legal advice. 10.73  Nationality or citizenship is unlikely to serve as a comprehensive personal connection for use in the private law. It has been useful where the recognition of a legal status is implicated, as in the formal validity of wills265 or the recognition of annulments or divorces.266 The internationalist policy of modern private international law means that there is a preference for recognising the validity of a will or a matrimonial decree, and the fact that an individual may have multiple nationalities only assists that preference. It becomes different once rights and liabilities have to be determined, because a dispute will only be avoided or decided if one system of private law can be identified as the law of the cause. With the easier recognition of multiple nationalities and citizenship’s distinct inability to identify the sub-national polities that may be responsible for private law, the law of citizenship is incapable of serving this purpose. 10.74  Habitual residence currently presents the best opportunity for a concept that can replace the comprehensive role of domicile in identifying a personal law that determines private rights and duties.267 It has the advantage of just being a term created by legislation — Hague Conventions — but having its meaning developed contextually by common law and civilian courts. It closely parallels domicile, with its strong territorial considerations. However, the fact that intention is merely relevant, but not ‘controlling’,268 in determining habitual residence means that it is independently available to individuals who do not have full legal capacity. This immediately removes the technicalities that beset domicile of origin and dependence. It also means there is a lower threshold than for domicile before habitual residence can change. Its major defect is that, occasionally, a person may not have a place of habitual residence.269 However, further consideration of habitual residence as a wholesale means of replacing domicile seems worthwhile. There is, nevertheless, no serious movement in this direction. Indeed, when the Australian Law Reform Commission gave thought to the use of one law for all questions of succession on 263. 264. 265. 266. 267.

See 10.10. See 10.13-10.14. See 21.21 and 21.36. See 14.28 and 14.30. See L Trakman, ‘Domicile of Choice in English Law: An Achilles Heel’ (2015) 11(2) Journal of Private International Law 317. 268. LK v Director General, Dept of Community Services (2009) 237 CLR 582 at 594; [2009] HCA 9. 269. Re J (A Minor) (Abduction) [1990] 2 AC 562. See 10.63.

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death, it had the example of the Hague Convention on Law Applicable to Succession 1988 before it. This is a Convention that provides for a single law applicable to all questions of succession — the law of nationality or of habitual residence. It is therefore surprising that, while conscious of the weaknesses of the law of domicile, the commission still preferred to have all questions of succession determined by the law of the place where the deceased was domiciled.270

270. See 21.56.

297

Chapter 11 Constitutional Limits on Choice of Law Introduction 11.1  In Australia, the common law choice of law rules tend to deal with interstate cases on the same terms that they do international cases. So, on a number of occasions in the mid-20th century, the High Court pointed out that, in multi-state adjudication, another state or territory was as foreign as another country. In Chaff and Hay Acquisition Committee v JA Hemphill and Sons Pty Ltd,1 Williams J observed that for ‘the purposes of private international law, South Australia is a foreign country in the courts of New South Wales’.2 Similar comments were made in Laurie v Carroll,3 Pedersen v Young4 and McKain v R W Miller & Co (South Australia) Pty Ltd.5 There is nothing unique in this approach to cases internal to a federation. Even during the Cold War, an American judge could declare that ‘Michigan’s sovereignty is as foreign to Delaware as Russia’s’.6 In Australia, however, this approach was revised by the High Court through an uneven process of adjudication between the 1980s and early 2000s. The result is that, in choice of law questions for torts in particular, the status of interstate relations in private litigation is more closely directed by the political and economic union of the country. Outside interstate tort claims, however, this is yet to see the development of a broad-based private interstate law that differs significantly from the private international law. So, while it is somewhat archaic to describe the sister states as different or foreign countries to each other, this remains, by and large, the approach taken to interstate issues in private litigation. 11.2  The structure of the private international law applicable in interstate questions is nevertheless modified by the fact of Federation, federal laws and provisions in the Australian Constitution.7 This chapter includes a discussion of two of the Constitution’s provisions that have some impact on the choice of law method, and the content of choice of law rules 1. 2. 3. 4. 5. 6. 7.

(1947) 74 CLR 375. At 396. (1958) 98 CLR 310 at 331. (1964) 110 CLR 162 at 170. (1991) 174 CLR 1 at 31. City of Detroit v Proctor 61 A 2d 412 at 416 (1948). It could also be affected by territorial limitations on the states’ legislative powers: see 12.4. For an argument that these territorial limitations should be inferred from the Australian Constitution, see P Herzfeld, ‘Constitutional Limitations on State Choice of Law Statutes’ (2005) 16 Public Law Review 188.

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applicable in interstate cases. The first is s 118 (the full faith and credit clause), which has had an influence on the shape of the choice of law rules for torts committed in another Australian state or territory. The second is s 117 (the interstate discrimination clause), which places some limits on the content of choice of law rules that a state or territory parliament can prescribe for interstate questions.8

Full faith and credit 11.3  Section 118 of the Australian Constitution states: 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.

This clause is supplemented by s 185 of the Evidence Act 1995 (Cth), which provides:9 All public acts, records and judicial proceedings of any 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 that State or Territory.

These provisions were respectively based on Art IV, s 1 of the United States Constitution and s 1738, title 28 of the US Code. However, there is much less Australian adjudication on full faith and credit, and when compared with the American law on full faith and credit, it appears to be less refined.10 There have been occasional references to the American decisions in the Australian cases but, since the High Court’s decision in John Pfeiffer Pty Ltd v Rogerson11 in 2000, the Australian interpretation of full faith and credit has taken its own path.

Full faith and credit: No public policy exclusion of interstate law 11.4  Although it is rarely done, a court in Australia has power to refuse application of the law of the cause identified by the usual choice of law rule for general policy reasons. The application of the usual law of the cause might mean the court in the forum is enforcing a penal or revenue law or a foreign governmental interest, or is contrary to public policy.12 However, where the law of the cause is the law of another state or territory, it appears that s  118 of the Australian Constitution denies a court in Australia the right to refuse application of the law on some of these grounds. In Merwin Pastoral Co Pty Ltd v Moolpa

8.

9.

10. 11. 12.

See J Stellios, ‘Choice of Law and the Australian Constitution: Locating the Debate’ (2005) 33 Federal Law Review 7 at 49–55, where the author, unlike the courts, reads ss 118 and 117 together to suggest that the Constitution be understood as providing that states should simply give equality of treatment to residents and laws of other states. This necessarily rejects the High Court’s current approach to s 118: see 11.8–11.19. See also the section’s predecessor, s 18 of the State and Territorial Laws and Records Recognition Act 1901 (Cth), repealed by s 3 of the Evidence (Transitional Provisions and Consequential Amendments) Act 1995 (Cth). Cf W Gummow, ‘Full Faith and Credit in Three Federations’ (1995) 46 South Carolina Law Review 979. (2000) 203 CLR 503; [2000] HCA 36. See 8.39–8.47 and 8.52–8.69.

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11.6

Pastoral Co Pty Ltd, the plaintiff Victorian company sold a station in New South Wales to the defendant Victorian company by instalment contract. It was evident by 1932 that the defendant did not intend to complete the purchase, and the plaintiff sued for unpaid instalments and interest in the Supreme Court of Victoria. The common law choice of law rule (for questions of contract) identified the law of New South Wales as the law of the cause. This included the Moratorium Act 1930 (NSW), which annulled any personal obligation to complete an instalment contract and limited the vendor to its rights against the land. One argument raised by the plaintiff was that the Moratorium Act should not be applied by a court in Victoria, as it ‘contravened notions of morality or the fundamental policy of the law’. On appeal in the High Court, Rich and Dixon JJ held — although without explanation — that this argument was contrary to s 118.14 Evatt J agreed, holding that s 118 prohibited a court from refusing a party to the action a defence available under the law of another state.15 13

11.5 Merwin denies the right to exclude application of interstate law on the ground that it would be contrary to public policy. As will be seen, this remains the law.16 The lack of elaboration in the Merwin judgments themselves, however, ultimately spawned two different understandings of s 118, although both broader than the decision in Merwin itself. The first, which could be called the weak interpretation of Merwin, is that s 118 demands that, once the choice of law rule requires the selection of the law of another state as the law of the cause, then the whole of the law of that state must be applied. However, s 118 has no effect on the choice of law rule itself, and states are free to retain the common law choice of law rule or adopt, by statute, different choice of law rules that might not require the law of another state to be applied. The weak interpretation, therefore, is that the choice of law rule, whether originating in the common law or a state statute, triggers the operation of s 118.17 The second, strong interpretation of Merwin is that, in preventing states from refusing application of another state’s law on the ground that it offends the public policy of the forum state, s 118 necessarily prohibits the states from preferring the application of their own legislative policies over those of other states through choice of law rules. As a result, the Merwin principle gives shape to the choice of law rules that Australian courts can apply in interstate cases.18 The eventual adoption of the strong interpretation of the Merwin principle is discussed below. 11.6  So far as the actual decision in Merwin — that a state cannot deny application of the law of another state on the ground that it would be contrary to public policy — is concerned, this also has immediate implications for the other grounds for excluding the application of the law that would normally be selected as the law of the cause.19 There is authority that raises doubt as to whether a court is similarly denied the right to exclude the application of an interstate revenue law. In Permanent Trustee Co (Canberra) Ltd

13. 14. 15. 16. 17. 18. 19.

(1933) 48 CLR 565. At 577. At 588. Breavington v Godleman (1988) 169 CLR 41 at 81, 96–7, 116, 133–4, 150. See 11.11. See 11.14–11.15. See 8.39–8.69.

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v Finlayson, Dunphy J in the Supreme Court of the Australian Capital Territory thought that, to give a New South Wales revenue law full faith and credit, he could not refuse to enforce it. However, on appeal in the High Court it was held that this would give the New  South Wales law an extraterritorial operation that it was not intended to have.21 Further, in Rothwells Ltd (in liq) v Connell22 the Queensland Court of Appeal considered that it was not obliged to enforce a Western Australian revenue law. McPherson JA held specifically that to do so would, contrary to the common law, be enforcing a foreign revenue law.23 However, despite the doubt surrounding this issue, in Australia these laws can always be enforced by proceeding in the state or territory in which they originate. Then, without any substantive defence being allowed, the resulting judgment can be enforced interstate by registration under the Service and Execution of Process Act 1992 (Cth).24 20

11.7  The operation of s 118 in proving the content of interstate law and in the recognition of interstate judgments has been considered in Chapters 5 and 9.25

Full faith and credit: Effect on the content of the choice of law rule 11.8  The possibility of a broader role for the full faith and credit clause in choice of law method arose in 1988 in Breavington v Godleman.26 Here, and in the cases that have followed, the role of s 118 has been an issue in the question of which choice of law rule should apply in interstate tort cases — that is, those in which an Australian court is considering the law that governs a claim in tort where the tort occurred outside the forum state or territory. Two competing choice of law rules were considered by the High Court in Breavington and the cases that followed it: on the one hand, the traditional rule in Phillips v Eyre,27 which required application (in one way or another) of both the law of the forum (the lex fori) and the law of the place where the tort occurred (the lex loci delicti);28 and on the other, a rule that required application of the law of the place of the tort alone. In Breavington, the plaintiff sued the defendant in the Supreme Court of Victoria for damages for an injury arising out of a motor vehicle accident which occurred in the Northern Territory. The defendant was living in Victoria at the time proceedings were commenced. The plaintiff ’s claim for damages included damages for loss of earnings and earning capacity. These were recoverable at common law in Victoria, but not in the Northern Territory where the Motor Accidents (Compensation) Act 1979 limited the action to a claim for pain and suffering or loss of amenities of life. In the Victorian courts, some form of the rule in Phillips v Eyre was applied, although, in the Full Court of the Supreme Court, the law of the Northern Territory and its limitation on the right to recover loss of earnings and earning capacity were applied

20. 21. 22. 23. 24. 25. 26. 27. 28.

(1967) 9 FLR 424. (1968) 122 CLR 338 at 343. (1993) 119 ALR 538. At 548–9. See 5.72–5.75. See 5.69–5.71 and 9.29–9.30. (1988) 169 CLR 41. (1870) LR 6 QB 1. See 18.2.

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11.9

alongside the law of Victoria. This decision was unanimously affirmed by the High Court, but for a range of different reasons. 29

11.9 In Breavington, four judges rejected the rule in Phillips v Eyre, and applied the law of the place where the tort occurred — alone and without any reference to the law of the forum. Mason CJ did so by crafting a new common law choice of law rule for interstate torts. The other three judges adopted the law of the place of the tort for constitutional reasons. Wilson and Gaudron JJ considered that, where different state laws dictated different legal consequences for a given set of facts, s 118 resolved which state’s laws would dictate the outcome.30 However, s 118 did not state a ‘formula’ for identifying the relevant state law to be given priority. Wilson and Gaudron JJ therefore adopted the basic principle that ‘there should only be one body of State law determining the legal consequences attaching to a set of facts occurring in a State’.31 In interstate tort cases, this objective is only achieved if ‘questions of liability … be determined by the substantive law that would be applied if the matter were adjudicated in a court exercising the judicial power of the State in which the events occurred’. However, Breavington involved the law of a federal territory. Wilson and Gaudron JJ therefore added that ‘as a matter of uniformity the same rule should now be adopted as a common law rule in relation to events occurring in a Territory’.32 Deane J delivered an analogous judgment in Breavington, though not as much significance was given specifically to s 118. He held that it could reasonably be inferred from the Constitution that Federation was to create a ‘unitary’ system of law, in that:33 … 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.

The sources of this inference included the creation of federal jurisdiction, the separation of the judicial power, the unity of the common law, the appellate role of the High Court and provisions in the Constitution (such as s 109) dealing with inconsistency of laws. In this context, Deane J held that s 118, though not strictly necessary to this conclusion, reinforced that state laws were to be applied to cases which had a predominant territorial nexus with the relevant state.34 This meant that, for interstate cases, choice of law rules did not apply to identify the law of the cause. It was identified by determining which state had the predominant territorial nexus with the case. However, Deane J held that, except where they select the law of the forum, the common law choice of law rules are based on territoriality and are therefore ‘likely to be relevant, by way of analogy, to the identification of the applicable substantive laws in a case involving circumstances … connected with more than one State’.35 Like the laws of a state, the laws of a federal territory were only to apply to cases that had a predominant territorial nexus with the relevant territory. This led in 29. 30. 31. 32. 33. 34. 35.

Godleman v Breavington [1987] VR 645. (1988) 169 CLR 41 at 97–8. At 98. At 98. At 121. At 129. At 137.

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Breavington to the application of the law of the Northern Territory since that was the place where the accident occurred.36 11.10  The approaches taken by Wilson, Deane and Gaudron JJ in Breavington were, however, rejected by a majority of judges (Mason CJ and Brennan, Dawson and Toohey JJ). Of these, Mason CJ — as noted — still preferred a choice of law rule that required application of only the law of the place of the tort, while Brennan, Dawson and Toohey JJ preferred some form of the rule in Phillips v Eyre. Further, the role given by Wilson, Deane and Gaudron JJ to s 118 was increasingly marginalised as the composition of the High Court changed, being endorsed only by Deane and Gaudron JJ in McKain v R W Miller & Co (South Australia) Pty Ltd,37 Stevens v Head38 and Goryl v Greyhound Australia Pty Ltd.39 11.11 In Breavington, Dawson J accepted the ‘weak’ interpretation of Merwin as explained above.40 He said:41 In my opinion, the requirement that full faith and credit be given to the laws of a State … 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.

This was the approach endorsed by the majority (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ) in McKain v R W Miller & Co (South Australia) Pty Ltd.42 So the usual choice of law rule, whether originating in the common law or a state or territory statute, is applied, and if it selects the law of another state as the law of the cause, full faith and credit must be given to that law. The judgment of Mason CJ in McKain illuminated the role of s 118 in this connection. In dissent, Mason CJ held that the common law choice of law rule required application of the law of South Australia alone to a proceeding brought in the Supreme Court of New South Wales to recover damages for an injury that was suffered in South Australia. Therefore, once the law of that state was chosen, the court had to give it full faith and credit. The law of South Australia included a statute of limitation that gave a defence to the bringing of the proceeding in McKain, subject to provisions which gave South Australian courts a discretion to extend the limitation period. Citing Dawson J in Breavington, Mason CJ held that the Supreme Court of New South Wales was required to apply all of the South Australian statute, including the provisions for the extension of the limitation period. That ensured the interstate statute was given ‘full effect’ in the courts of the forum.43

36. 37. 38. 39. 40. 41. 42. 43.

The courts continue to recognise that s 118 technically only applies when the law in question is enacted in an Australian state: cf Shoalhaven City Council v Ellis [2012] NSWLEC 225. (1991) 174 CLR 1 at 45–6, 55–6. (1993) 176 CLR 433 at 461–2, 464–5. (1994) 179 CLR 463 at 476–7. See 11.5. (1988) 169 CLR 41 at 150. (1991) 174 CLR 1 at 31, 36–7. At 31. For further tacit recognition of the weak interpretation of s 118, see Buultjens v Robertson [2010] FCA 134 at [13].

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11.13

11.12  There was considerable dissatisfaction with the practicalities of applying the choice of law rule in tort — a form of the rule in Phillips v Eyre — that the High Court had adopted in McKain44 and Stevens v Head.45 However, formal legal reasons for changing this choice of law rule were not presented until, in Lange v Australian Broadcasting Corporation,46 the High Court accepted a fundamental shift in its recognition of sources of the common law of Australia. In Lange, the High Court held that the common law of Australia had to conform to the demands of the Australian Constitution — although in that case this was limited to reshaping the common law defences to defamation claims in ways that conformed to the Constitution’s implied freedom of public and political communication. However, through Lange, the weak interpretation of Merwin that had been adopted in McKain47 was potentially exposed to being overruled, as the weak interpretation had the Constitution — s 118, in particular — operating subject to the common law. Full faith and credit was only to be given if the common law choice of law rule selected the law of another state as the law of the cause but, on this reading, the common law rule itself was unaffected by the Constitution. The weak interpretation therefore reversed the priority of the Constitution and the common law demanded by Lange. In 2000, John Pfeiffer Pty Ltd v Rogerson,48 therefore, saw the High Court bring choice of law into line with the principle of Lange. 11.13  John Pfeiffer Pty Ltd v Rogerson was an appeal to the High Court from the Supreme Court of the Australian Capital Territory, in a claim for damages for a workplace accident in New South Wales. The only difference between the laws of the Australian Capital Territory and New South Wales was that a New South Wales statute capped the damages that could be recovered for a workplace injury. As has been seen,49 in Pfeiffer the High Court held that a cap on the recovery of damages was substantive law, and this forced the court to give a conclusive answer on what, in an interstate tort case, the law of the cause was.50 The court considered ‘various possibilities’ for the choice of law rule: the law of the place of the tort; the law of the forum; the rule in Phillips v Eyre (which required some reference to both of the earlier two possibilities); and the proper law of the tort. Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ, with Kirby J concurring, opted for the law of the place of the tort. Only Callinan J, in obiter, preferred the rule in Phillips v Eyre.51 And while a range of factors led the court to reject the alternatives to the law of the place where the tort occurred, s 118 was important for refusing to adopt, as the choice of law rule for interstate torts, the law of the forum or the rule in Phillips v Eyre — which naturally included some reference to the law of the forum.

44. 45. 46. 47. 48. 49. 50. 51.

(1991) 174 CLR 1. (1993) 176 CLR 433. (1997) 189 CLR 520. (1991) 174 CLR 1. (2000) 203 CLR 503; [2000] HCA 36. See 7.27–7.28. Cf G Davis, ‘John Pfeiffer Pty Ltd v Rogerson: Choice of Law in Tort at the Dawning of the 21st Century’ (2000) 24 Melbourne University Law Review 982 at 986. (2000) 203 CLR 503 at 576; [2000] HCA 36.

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Meaning of s 118 11.14 In Pfeiffer, Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ shied away from giving a definitive interpretation of s 118. Their Honours did accept the decision in Merwin that the law of another Australian state could not be denied application on the ground that it offended the public policy of the forum state.52 However, they then added:53 … it may also be that s 118 suggests that the constitutional balance which should be struck in cases of intranational tort claims is one which is focused more on the need for each State to acknowledge the predominantly territorial interest of each in what occurs within its territory than it is of a plaintiff ’s desire to achieve maximum compensation for an alleged wrong.

The majority in Pfeiffer only regarded this view as a possible interpretation of s 118. In content, however, it still edges close to the meaning given to s 118 by Wilson and Gaudron JJ in Breavington54 — although, as it does not give the Constitution a direct role in deciding the case, it has a different effect. The Pfeiffer majority were only prepared to conclude that ‘the terms of s 118 indicate that, as between themselves, the States are not foreign powers as are nation states for the purposes of international law’.55 This was a factor that the common law choice of law rule had to account for.56 Kirby J, accepting that s 118 denied a state the right to refuse application of a sister state’s law on the ground it offended public policy, would then only concede that s 118 ‘may have a significant and substantive operation’.57 He did not state what this was, although he did hold that the choice of law rule had to account for the principles of comity, common identity and national unity that were given expression in a federation.58 Callinan J did not accept a role for s 118 in Pfeiffer, and seems to be the only judge since Merwin to consider that interstate laws could be denied application on the ground of public policy.59 11.15  The majority in Pfeiffer considered that ‘the predominant territorial concern of the statutes of State and Territory legislatures’ is given better effect by a choice of law rule that requires application of the law of the state or territory where the tort occurred, rather than the law of the forum.60 In considering how appropriate the rule in Phillips v Eyre was for dealing with an interstate tort, the majority alluded to the Merwin decision that an Australian court cannot say that the law of another state or territory violates ‘a fundamental principle of justice’. Accordingly:61 … the application of a general threshold requirement that the events be actionable according to the laws of the forum [as Phillips v Eyre demands] cannot be justified as being based on giving effect to some public policy of the forum.

52. 53. 54. 55. 56. 57. 58. 59. 60. 61.

(2000) 203 CLR 503 at 533; [2000] HCA 36; see also 11.4–11.5. At 533–4. See 11.9. At 534; see also Uhlmann v Harris (No 2) [2018] QSC 28 at [35]. (2000) 203 CLR 503 at 534. At 557. At 551. At 576. At 540. At 541.

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11.17

That being so, the High Court effectively endorsed the strong interpretation of Merwin — as the public policy of the forum is not used just to exclude application of an interstate law, it also cannot be used to give overriding consideration to forum policies when deciding on the shape of a choice of law rule for an interstate case.62

Effect of s 118 11.16  All of the judges in Pfeiffer who accepted that s 118 had some role in deciding interstate cases denied that this was by direct application of a constitutional rule to the case.63 Rather, a common law choice of law rule still directed how an interstate tort case was to be decided, but this choice of law rule had to be compatible with the imperatives of the Australian Constitution. This differs markedly from the approach taken by Wilson, Deane and Gaudron JJ in Breavington, where they believed that the Constitution itself gave the rule for dealing with interstate cases.64 However, the judges who participated in the joint judgment — Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ — expressed the relationship between the Constitution and the common law choice of law rule in different ways. Stating the relationship in its most direct form, they said that applying the law of the place of the tort ‘will recognise and give effect’ to the constitutional imperative that state and territory legislatures had a predominant territorial concern with events inside their borders.65 On the other hand, their Honours also referred to the development of the choice of law rule as merely taking into account various matters of constitutional text and structure.66 Similarly, Kirby J also referred to the choice of law rule ‘required’ by the Constitution, but also one that is ‘harmonious’ with, and does not ‘run counter to’, constitutional imperatives.67 11.17  While this approach suggests the influence of the Constitution on the content of the choice of law rules, instead of the Constitution directing their content, it still leaves some questions open. The first, and most important, is the extent to which a parliament — federal, state or territory — can provide for a choice of law rule that differs from the rule that is shaped by constitutional imperatives. This could include a choice of law rule that requires the law of the place of the tort to be applied in most cases but, unlike the Pfeiffer rule, also allows an exception for application of the law of the forum in some cases. As Kirby  J mentioned in Pfeiffer, the Constitution will still have some effect on choice of law rules enacted by a parliament even if the Constitution itself does not give a choice of law rule.68 So, in Pfeiffer, constitutional imperatives suggested both adoption of a choice of law rule that gives the law of the place of the tort as the law of the cause and rejection of the law of the forum. Does this mean that a state parliament could not adopt a statutory choice of law rule that requires some application of the law

62. 63.

64. 65. 66. 67. 68.

See 11.5. At 533, 557. For an argument that the Constitution should continue to be directly applicable in these cases, see J Kirk, ‘Conflicts and Choice of Law within the Australian Constitutional Context’ (2003) 31 Federal Law Review 247. See 11.9. At 540. At 534. At 557. At 557.

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of the forum in an interstate tort case? In Sweedman v Transport Accident Commission,69 the question was whether the Victorian Transport Accident Commission could claim an indemnity from a New South Wales resident in relation to an accident in New South Wales in which Victorian residents were injured. The indemnity was for compensation the commission had paid to the Victorian residents under the Transport Accidents Act 1986 (Vic). Sweedman ended in the High  Court, which held the indemnity could be recovered. The court below — the Victorian Court of Appeal — held that compensation could be obtained under the Victorian Act, although if the Victorian residents had sued in negligence in a Victorian court for damages, then the law of New South Wales would apply.70 In obiter, Nettle JA (with whom Winneke P agreed) dealt with the argument that a claim under the Victorian Act would be inconsistent with Pfeiffer’s common law choice of law rule for interstate torts, and whether state legislation could modify that rule as it ‘is so much the product of the Constitution that it could not be altered except by amendment to the Constitution’.71 While not having to decide the question himself, Nettle JA thought that Pfeiffer and some subsequent decisions of the High Court72 indicated the possibility that the state legislature had only a limited ability to change Pfeiffer’s common law choice of law rule.73 As the High Court did not consider the effect of s 118 in the proceedings, this question therefore remains unresolved. 11.18  The principle that the common law must conform to the Australian Constitution potentially has broad consequences for the common law. If applied consistently, it would undoubtedly generate significant change in the common law of Australia.74 However, so far as choice of law is concerned, interstate torts have been the exclusive focus of the effect that s 118 has on the common law. In some respects, tort cases are the easiest in which the effect of s 118 could be predicted, as there is a long history of territorialist doctrine for cross-border torts that has not been as strong in other areas of choice of law. Beale’s vested rights theory,75 for instance, which required application of the law of the place of the tort in cross-border tort cases, rested on territorial principles that are analogous to the ‘predominant territorial concern’ of the current interpretation of s 118.76 Nevertheless, there is nothing in s 118 that indicates in a formal sense that it only operates in tort cases. Nor is there anything in the current interpretation of s 118 that suggests that the state and territory legislature’s ‘predominant territorial concern’ cannot extend to interstate contract, property or succession cases. For example, older choice of law rules for contract cases, which required application of the law of the place where the contract was made or the law of the place of performance,77 were more firmly based on territorial principles than the current rule that 69. 70. 71. 72. 73. 74. 75. 76. 77.

(2006) 226 CLR 362. Transport Accident Commission v Sweedman (2004) 10 VR 31 at 47–8; [2004] VSCA 162 at [50]–[51]. At 49; [55]. Mewett v Commonwealth (1998) 191 CLR 471 at 522–7; Blunden v Commonwealth (2003) 218 CLR 330 at 338–41; [2003] HCA 73. (2004) 10 VR 31 at 49; [2004] VSCA 162 at [56]. P Keyzer, ‘Pfeiffer, Lange, the Common Law of the Constitution and the Constitutional Right to Natural Justice’ (2000) 20 Australian Bar Review 87 at 90–1. See 1.15. See 11.15. Cf 17.16–17.17.

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11.19

generally allows parties the right to choose the governing law of a contract. Whether the currently stated effect of s 118 should see a reshaping of choice of law rules in contract — or of choice of law rules in other areas of the private law — is a possibility that courts may be understandably reluctant to recognise. Although in Sweedman v Transport Accident Commission,78 the High Court settled that the law governing the availability of an indemnity was its objective proper law,79 the court made no reference to s 118 in opting for this choice of law rule. However, the possibility that a stronger territorialism in choice of law could be required by s 118 should be recognised, even if it remains unexplored.80 Hill and Stone suggest that the parts of the common law rule that cannot be changed by a parliament are only those aspects that reflect constitutional requirements — or ‘imperatives’ as the Pfeiffer court called them. This is because the statute that attempted to change the common law rule also has to conform to the Constitution and would, by changing the constitutionallyrequired aspect of the common law, itself violate the Constitution. However, Hill and Stone argue that, in Pfeiffer, the constitutionally-required aspect of the rule was that it ‘not act as a “public policy” filter and … not discriminate against interstate residents’.81 A different choice of law rule to that adopted in Pfeiffer but that still maintained these standards would, as a consequence, still be within the legislative power of one of the Australian parliaments.82 11.19  Section 118 has also had an indirect, but highly significant, effect beyond the areas where its constitutional imperative of heightened comity between the Australian states could have any operation. After Pfeiffer, the High Court held in Regie Nationale des Usines Renault SA v Zhang83 that international torts should also be governed by the law of the place where the tort occurred.84 Section 118 could have no operation whatsoever in an international tort case, as it only deals with the giving of full faith and credit to the laws of Australian states. In Pfeiffer, the principle that the Australian states were to be recognised as having a ‘predominant territorial concern’ in events inside their borders was drawn by distinguishing the relations between sister states from the position of foreign nations.85 However, the High Court in Renault was influenced by the need to align the choice of law rule for international torts with that for interstate torts. Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ accepted ‘that the reasoning and conclusion in Pfeiffer … should be extended to foreign torts, despite the absence of the significant factor of federal considerations’.86 While, therefore, s 118 could not directly influence the choice of law rule for international torts, it does, by the High Court’s preference that interstate and international issues be treated similarly, have an indirect effect on international cases. It is less likely that the High Court would have adopted this choice of law rule for international torts unless the rule for interstate torts had been changed first. 78. 79. 80. 81. 82. 83. 84. 85. 86.

(2006) 226 CLR 362; [2006] HCA 8. At 401–2. Kirk, above n 63, at 268–9. G Hill and A Stone, ‘The Constitutionalisation of the Common Law’ (2004) 25 Adelaide Law Review 67 at 81. This aspect is demanded by s 117: see 11.21–11.25. Hill and Stone, above n 81. (2002) 210 CLR 491; [2002] HCA 10. See 18.2. See 11.14. (2002) 210 CLR 491, 520; [2002] HCA 10.

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11.20  In commentary on s 118, Gageler has presented an alternative view that this question need not be resolved by s 118 or a choice of law rule, but simply by statutory interpretation. This is because the High Court has endorsed the view that the common law of Australia is uniform throughout the country.87 Accordingly, the only differences that are likely to emerge between the laws of different states and territories are differences that originate in the statute law enacted by their various parliaments. However, legislation enacted by a state or territory parliament is only valid if it is within the territorial competence of the relevant state or territory and it is presumed that opportunities for the extraterritorial operation of a state or territory statute will be extremely limited.88 So, in most cases, it will simply be a matter of whether, in its own terms, state legislation claims to apply to the case and, if it does, whether any of it is valid. Gageler recognises that two states’ statutes, both valid, might still conflict with each other in the one case. At least one of these would have extraterritorial operation, which state legislation can validly have. If they cannot operate concurrently, as the New South Wales and Victorian legislation did in Sweedman v Transport Accident Commission,89 s 118 will give priority to the statute of the state in which the conduct takes place. The other state’s statute would be repugnant. This does not give an answer when both state statutes claim to apply to a case through valid extraterritorial operation. It nevertheless resolves most interstate cases through interpretation, rather than the use of choice of law principles.90

Interstate discrimination 11.21  Section 117 of the Australian Constitution states: A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

This is based on the privileges and immunities clause in the United States Constitution.91 The High Court gave s 117 a substantive operation in the late 20th century. It has held that a comparison must be made between a person in the plaintiff ’s position and not resident in the forum state on the one hand, and a hypothetical person in the same position but who is resident in the forum state on the other. If it appears that, upon making such a comparison, the plaintiff is subject to a disability or discrimination under the law of the forum, the plaintiff is generally immune from the operation of that law.92 This constitutional requirement can constrain the choice of law rules that a state parliament can enact for interstate cases.

87. 88. 89. 90. 91. 92.

Lipohar v R (1999) 200 CLR 485; [1999] HCA 65. Cf Herzfeld, above n 7. (2006) 226 CLR 362; [2006] HCA 8. S Gageler, ‘Private Intra-national Law: Choice or Conflict, Common Law or Constitution?’ (2003) 23 Australian Bar Review 184. Constitution (US) Art IV, s 2. Street v Queensland Bar Association (1989) 168 CLR 461.

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11.23

11.22  As s 117 refers only to a ‘subject of the Queen’, it only gives immunity from a discriminatory law to an Australian citizen resident in a state and, it follows, gives no protection to corporations.93 Violation of s 117 also does not have the effect of invalidating a law, but rather of rendering it inoperative. Consequently, it is possible that a law that discriminates in the relevant sense, according to its terms, against ‘persons’ — natural and artificial — might be inoperative for individuals but still apply to corporations. 11.23 In Goryl v Greyhound Australia Pty Ltd94 the plaintiff, a resident of New South Wales, was injured in a bus accident near Grafton in New South Wales. She had been a passenger on a bus owned by the defendant company, and which was registered in Queensland. The action to recover damages was brought in the District Court in Brisbane. In Queensland, full common law damages were available in successful proceedings for personal injuries. In New South Wales, the Transport Accidents Compensation Act 1987 abolished the right to recover common law damages and created a statutory compensation scheme which was, for plaintiffs, less generous. However, s 20 of the Motor Vehicles Insurance Act 1936 (Qld) provided: No person is entitled to recover by action under the law of Queensland … an amount greater than that which he might have recovered … under the law of the State or Territory … in which the injured person has or had (at the time of the accident) his principal place of residence …

It had also been held (by the time this matter came to the High Court) in Stevens v Head95 that, at common law, the law of Queensland relating to recovery of damages would apply in an action like the present.96 If s 20 applied, the law of Queensland would limit the plaintiff to recover the lesser sum available under the New South Wales statute. However, if for any reason s 20 were not to apply, then the plaintiff could recover the full common law damages available under the principle of Stevens. The High Court, by a majority, held that s 20 offended s 117 of the Australian Constitution and was therefore inoperative in this case.97 As Dawson and Toohey JJ said:98 In applying s 117, the comparison to be made is between a non-resident in the position of the plaintiff and the position she would be in if she were resident in Queensland. Quite clearly the plaintiff is, upon such a comparison, subject both to a disability and to discrimination. She can only recover damages at a lesser rate than if she were a resident of Queensland.

Further, as Brennan J had pointed out, the ‘sole criterion’ for making this distinction between plaintiffs in Queensland courts was the state or territory in which they were principally resident.99 The discrimination was made on the basis of interstate residence, and was impermissible.100 This can be compared with Sweedman v Transport Accident 93. 94. 95. 96. 97. 98. 99. 100.

Sweedman v Transport Accident Commission (2006) 226 CLR 362 at 408. (1994) 179 CLR 463. (1993) 176 CLR 433. In this respect, the law has now been changed: see 7.39–7.45. (1994) 179 CLR 463 at 471, 474, 488, 496–7. At 488. At 474. In dissent, Deane and Gaudron JJ held that s 118 of the Constitution required application of the law of New South Wales to the proceeding: at 476–7; see also 11.9–11.10.

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Commission, where the Victorian statute in question entitled the Transport Accident Commission to claim an indemnity (relating to compensation it had paid) from ‘a person’ who would have been liable in damages for injuries if the commission had not awarded compensation for them. However, there was no entitlement to be indemnified by a person who had, under the statute, paid a ‘transport accident charge’ for a Victorian-registered motor vehicle. The New South Wales resident defendant, whose vehicle was registered in New South Wales, claimed she did not have to indemnify the commission as the Victorian statute discriminated against interstate residents by imposing upon them a liability to indemnify that was not imposed on Victorian residents. The majority — Gleeson CJ and Gummow, Kirby and Hayne JJ — held there was no violation of s 117 in this case as the liability to indemnify was not conditioned on residence in another state. Rather, liability was conditioned on payment of the ‘transport accident charge’. Therefore, a Victorian resident who had not paid the charge could be liable to indemnify, but a New South Wales resident whose vehicle was registered in Victoria and who had paid the charge could not be liable to indemnify the commission.102 Heydon J agreed with this conclusion.103 Callinan J dissented, but on the ground that Victoria did not have power to impose liability extraterritorially in this way. He therefore did not have to deal with s 117.104 101

11.24 In Goryl v Greyhound Australia Pty Ltd,105 the limits on recovery imposed by s 20 of the Motor Vehicles Insurance Act 1936 (Qld) were only invoked because, following Stevens v Head, damages were to be assessed in accordance with the law of Queensland as the law of the forum. For this reason, Dawson and Toohey JJ were not prepared to classify s 20 as a choice of law rule.106 However, like a choice of law rule, s 20 made a reference to the laws of other states and territories on the basis of a connecting factor — in this case, the plaintiff ’s principal place of residence. If, then, s 117 is able to apply to a rule like s 20, there seems no reason why it cannot apply to a choice of law rule. Goryl therefore suggests the possibility that a choice of law rule which has the effect of subjecting an interstate resident to a disability or discrimination would be inoperative. Section 117 thus limits the extent to which a state’s choice of law rule can prescribe that residents of the state be treated differently to residents of other states. It is unclear what impact the clause has on territory laws that have a similar effect, although, if the courts were to approach this question in the same way as they have s 118, it would be expected that territory laws would be treated as subject to the operation of s 117. The section has potential to limit the extent to which personal connections, such as ordinary or habitual residence,107 can be used to identify the law of the cause in interstate cases. 11.25  An exception to the operation of s 117 is recognised where a state restricts to its own residents the enjoyment of rights that are naturally and exclusively associated with residence in the state. Among these, for example, would be included welfare benefits for ‘the 101. 102. 103. 104. 105. 106. 107.

(2006) 226 CLR 362; [2006] HCA 8; see also 11.17. At 408–9. At 440. At 432–3. (1994) 179 CLR 463. At 487–8. See 10.54–10.70.

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indigent, the aged or the ill’ that a state could limit to its own residents, and from which it could exclude out-of-state residents.108 This exception was applied by the Victorian Court of Appeal in Transport Accident Commission v Sweedman.109 As discussed,110 the Transport Accident Act 1986 (Vic) entitled a Victorian commission to claim an indemnity from ‘a person’ who would have been liable in damages for injuries if the commission had not awarded compensation for them, unless they had paid a ‘transport accident charge’ for a Victorian-registered motor vehicle. The Victorian Court of Appeal, while conceding that there was ‘a degree of discrimination’ in this arrangement, held that this was a proper exercise of the state’s responsibility to people resident in Victoria.111 For example, the scheme could be regarded as a welfare scheme for in-state residents, funded by state taxes and transport charges paid by those who benefit from the scheme. This did nothing to offend s 117.112 On appeal in the High Court it was held that the provision did not discriminate on the ground of residence.113 The characterisation of the scheme as a welfare measure is therefore now unnecessary, and it is doubtful whether the Court of Appeal’s decision in this respect remains authoritative.

The Australian Constitution in choice of law: Status and future 11.26  The Australian Constitution has a significant role in organising legal relations between the sister states of the federation and with the territories created by the Commonwealth that it establishes. While the Constitution itself does not set out choice of law rules, it still has an effect on the shape of choice of law rules that will determine cases where the laws of Australian states or territories conflict. As a result, it is now settled that constitutional imperatives can require a reconfiguration of choice of law rules to give effect to the predominant territorial concern that states and territories have over events inside their borders,114 and to the obligation not to discriminate against Australian citizens who reside in another state or territory.115 11.27  Significant uncertainties nevertheless surround the possible future role that the Australian Constitution could have on Australian choice of law rules. In the first place, these uncertainties hinge on the use that the High Court made of the Constitution in John Pfeiffer Pty Ltd v Rogerson.116 The majority reasoned that a constitutional imperative directed — and even ‘required’ — that the common law choice of law rule for interstate torts should give effect to the law of the place where the tort occurred.117 In an effort to maintain an alignment

108. 109. 110. 111. 112. 113. 114. 115. 116. 117.

Street v Queensland Bar Association (1989) 168 CLR 461 at 491–2 and 491. (2004) 210 ALR 140; [2004] VSCA 162. See 11.18. At 164, 168–70. At 169. See 11.23. See 11.16. See 11.23–11.24. (2000) 203 CLR 503; [2000] HCA 36. See 11.15.

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of the choice of law rules for interstate torts and international torts, the High Court adopted a similar rule in favour of the law of the place where the tort occurred when the events took place overseas.118 However, all of this took place against a background of more than a decade of tortuous and shifting adjudication on choice of law in tort. The question that cannot be answered from the judgments is therefore whether the changes made in Pfeiffer were genuinely directed by the text of the Constitution, or whether the Constitution served as a convenient justification for making a radical but overdue change to the law. The latter seems more likely. If imperatives of predominant territorial concern and the non-discriminatory treatment of interstate residents were genuinely to direct the shape of common law choice of law rules, then it would be expected that, over time, there would be broad changes to choice of law in contract, property and succession — areas where territorial concerns might not predominate or where, through the use of domicile, residence continues to determine the outcome of choice of law cases.119 There is no suggestion of this occurring, or of any role for the Australian Constitution in choice of law outside questions of tort. Indeed, Sweedman v Transport Accident Commission120 is a relatively strong indication that the High Court was prepared to ignore New South Wales’ predominant territorial concern in a motor accident that took place within the state, by classifying the question as one of indemnity rather than tort and downplaying that state’s territorial concern in determining how the question of indemnity should be decided.121 11.28  In the second place, there are uncertainties about the limitation on the power of any Australian legislature to provide for a statutory choice of law rule that differs from the common law rule that was held in Pfeiffer to respond to a constitutional imperative. Specifically, proposals are consistently made to allow a proper law exception to the general rule that questions of interstate tort should be governed by the law of the place where the tort occurred.122 However, in Pfeiffer the High Court rejected a proper law exception to the general choice of law rule for tort123 — a consideration that might suggest that legislation providing for a proper law exception could raise questions of constitutional invalidity. There are already statutory modifications of the strict choice of law rule for interstate torts, in defamation124 and, as seen in Sweedman, the Victorian no-fault road accident scheme.125 In the Victorian Court of Appeal decision in Sweedman, Nettle JA recognised that there might be some limitations on a capacity to alter the Pfeiffer rule by legislation,126 but all of this remains untested.

118. 119. 120. 121. 122. 123. 124. 125. 126.

See 11.19. See 10.24. (2006) 226 CLR 362; [2006] HCA 8. See 11.17. See 18.3. See 11.13. See 18.17–18.21. See 11.17. See 11.17.

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Chapter 12 Statutes Introduction 12.1  Statutes can affect the choice of law method in three different and quite distinct ways. First, statutes may provide choice of law rules that apply to a multi-state case. Statutory choice of law rules resemble multilateral common law choice of law rules, prescribing similar connecting factors which are relevant to identifying the law of the cause, which give no priority to the application of forum law. For example, the Marriage Act 1961 (Cth) sets out statutory choice of law rules which apply to determine the validity of marriages,1 and state and territory legislation enacts choice of law rules for national defamations.2 Second, statutes may contain express provisions, referred to as ‘self-limiting provisions’, which stipulate the circumstances in which those statutes are applicable in multi-state cases. Statutory choice of law rules, and most self-limiting provisions, have an internationally mandatory effect in the forum, because they are intended to be applied without reference to common law choice of law rules. They will not necessarily be applied by foreign courts. Third, a statute may contain no express indication of the circumstances in which it is intended to apply. A court must then decide whether the statute is applicable in a multi-state dispute; and, in doing so, it must decide whether that is a question to be determined by reference to implied criteria of application (by analogy to self-limiting provisions), or by reference to the relevant common law choice of law rule. Most statutes contain no provisions indicating their intended scope of application, so the third situation is the most common. 12.2  The treatment of statutes at the choice of law stage is further complicated by two factors. The first is the general legal position in common law systems, according to the principle of legislative supremacy, that forum statute law has priority over the common law to the extent to which they lead to different outcomes. This may lead a court to conclude that the common law choice of law rule is effectively ousted by the potential application of a forum statute to the case. This is clearly required if the statute is expressly stated to have an internationally mandatory effect, but less clearly justified otherwise. The second complicating factor is that the priority that is accorded to statutes over common law rules, according to the principle of legislative supremacy, only applies to forum statutes. Accordingly, whether a statute is applied may depend heavily on choice of forum and the effect of jurisdictional rules.

1. 2.

See 13.41 ff. See 18.18–18.21.

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12.3  The treatment of statutes in the conflict of laws, therefore, depends on whether the statute is local or foreign. Particular issues may also arise in choice of law within Australia, when the courts are exercising cross-vested jurisdiction, and the case involves the application of the statute of another state or territory. The remainder of this chapter addresses the impact of statutes on the choice of law process, in the following order: 1. 2. 3.

forum statutes; statutes of another place (including another state or territory of Australia); and statutes of another state or territory in the exercise of cross-vested jurisdiction.

Forum statutes Extraterritorial reach of statutes 12.4  Where a forum statute is potentially applicable as a command to the forum’s courts, whether in the form of a choice of law rule or not, the first question which arises is the constitutional validity of the statute. This can naturally invoke all the considerations that affect the validity of legislation under federal and state constitutional law. However, the multi-state quality of a proceeding has constitutional implications for state or territory statutes that it does not have for a federal statute. The reason is that the former are more likely to raise questions of validity when an extraterritorial operation is claimed for them than are federal statutes, as the state and territory parliaments are still constrained by territorial limits on legislative powers.3 These limits were relaxed over the course of the 20th century, but still restrict state or territory parliaments in a manner not relevant to the federal parliament. To be valid, a state or territory statute must have some connection with the state or territory, although that connection need only be ‘remote and general’.4 Where that connection does not exist, the statute cannot apply to the case. If the statute establishes such a connection by reference to a traditional choice of law rule, that will inevitably provide a sufficient connection with the state or territory to maintain the validity of the statute.5 The issue of validity only arises when the connection is established by reference to some criterion other than those contained in a traditional choice of law rule.

Statutory choice of law rules 12.5  Statutory choice of law rules are uncommon in Australia. Most of the choice of law rules considered in this book originate in the common law. Statutory choice of law rules identify the applicable law by reference to the type of criteria which are used in common law choice of law rules. They are directly comparable to common law choice of law rules, but 3. 4.

5.

Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 443. Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 14; Mobil Oil Australia Pty Ltd v State of Victoria (2002) 211 CLR 1 at 22–3, 34; [2002] HCA 27; cf P Herzfeld, ‘Constitutional Limitations on State Choice of Law Statutes’ (2005) 16 Public Law Review 188. For an example of a statute being read down for lack of sufficient nexus, see Hitchcock v Pratt (2010) 79 NSWLR 687; [2010] NSWSC 1508. Cf Koop v Bebb (1951) 84 CLR 629; see also Sweedman v Transport Accident Commission (2006) 226 CLR 362; [2006] HCA 8 at [25]–[32].

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they usually modify the relevant common law choice of law rule. For example, the common law rule on validity of marriages celebrated abroad distinguishes between questions of formal validity, which are governed by the law of the place of celebration, and questions of essential validity, which are governed by the law of the parties’ antenuptial domicile.6 The statutory choice of law rule in Australia now provides that all issues of validity of marriages celebrated abroad are determined by the law of the place where the marriage is celebrated.7 12.6  Multi-lateral statutory choice of law rules clearly have mandatory effect in multistate litigation in the forum: that is, they clearly displace the otherwise applicable choice of law rules.

Self-limiting provisions 12.7  Self-limiting provisions stipulate the circumstances in which the substantive provisions of forum law apply; they indicate the scope of application of other provisions of the same statute in which the self-limiting provision is found. These provisions indicate when forum legislation applies, but they do not indicate what the law of the cause is, if the criteria of application are not satisfied, or insofar as the forum legislation does not completely resolve the issues in dispute. Therefore, they may not completely exclude the application of the otherwise applicable common law choice of law rule. To the extent that they are applicable, forum courts should probably give them an internationally mandatory effect. Statutes which use choice of law criteria to stipulate their scope of application clearly exclude the application of the otherwise applicable common law choice of law rule; where other criteria are used, it may be less clear whether they are certainly intended to exclude the otherwise applicable choice of law rule: that is, whether they are intended to have an internationally mandatory effect. Some of the most important examples of self-limiting provisions in Australian statutes include: • section 5(1) of the Competition and Consumer Act 2010 (Cth), which states that certain provisions of that statute, including most of the Australian Consumer Law, applies to ‘the engaging in conduct outside Australia’ by Australian citizens, ordinary residents, and corporations; • section 67(a) of the Australian Consumer Law,8 which provides that the consumer guarantees in Pt 3-2, Div 1 of the Australian Consumer Law apply to contracts, the objective proper law of which is that of an Australian state or territory, notwithstanding express contractual choices of any other law; • section 11(1) of the Carriage of Goods by Sea Act 1991 (Cth), which states that the law of the Australian state or territory from which shipment takes place applies to

6. 7. 8.

See 13.21–13.38. Marriage Act 1961 (Cth) ss 88C(2), 88D(1), subject to s 88D(2), preserving the application of Australian public policy on several grounds. See 13.50–13.54. The Australian Consumer Law is found in Sch 2 of the Competition and Consumer Act 2010 (Cth).

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Private International Law in Australia bills of lading and similar documents of title relating to the carriage of goods from any place in Australia to any place outside Australia; and

• section 8 of the Insurance Contracts Act 1984 (Cth) which states that the Act applies to contracts of insurance the subjective or objective proper law of which is that of an Australian state or territory. 12.8  Section 8 of the Insurance Contracts Act was considered by the High Court in Akai Pty Ltd v People’s Insurance Co Ltd.9 The parties expressly chose English law as the governing law of the contract. The common law choice of law rule would have given effect to this express choice, and identified English law as the law of the cause.10 Leaving the subjective choice of English law to one side, the High Court found that the objective proper law of this contract was the law of New South Wales. On that ground, the Act, by reason of the command given by s 8(2), applied to the contract, regardless of the effect that the common law choice of law rule would have had.

Generally-worded statutes 12.9  Most statutes do not contain any specific indication as to their intended scope of application in multi-state cases. Two incompatible methods have been developed to deal with this situation, in order to determine whether the statute should be applied. The first is to apply the normal choice of law rule. If the forum statute in question is part of the law of the cause, then it is applied, but not otherwise. The second gives priority to the possible application of forum statutes, by determining first whether the relevant forum statute is applicable to the circumstances. In determining whether the forum statute is applicable, the courts interpret the statute in order to ascertain its implicit criteria of application, by reference to parliament’s presumed intention.11 The second method is likely to lead to application of forum law, partly because of the court’s understandable perception that they have some responsibility under the principle of legislative supremacy, to ensure the application of forum statutes. The second method has been criticised as giving an undue priority to forum law, and as being inconsistent with the multilateral and cosmopolitan objectives of the general choice of law process.12 However, it is more commonly applied and has recently been endorsed by the High Court.13

Applying the choice of law rule 12.10  Many older cases assume that the common law choice of law process is the appropriate method for determining whether a statute is applicable in a multi-state case. This approach assumes that the relevant common law choice of law rule is the appropriate 9. 10. 11. 12.

13.

(1996) 188 CLR 418. See Chapter 17. Lawson v Serco Ltd [2006] 1 All ER 823 at [23]; Brown v New Zealand Basing Ltd [2018] 1 NZLR 245; [2017] NZSC 139. M Keyes, ‘Statutes, Choice of Law, and the Role of Forum Choice’ (2008) 4 Journal of Private International Law 1; C Bisping, ‘Avoid the Statutist Trap: The International Scope of the Consumer Credit Act 1974’ (2012) 8 Journal of Private International Law 35. Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16.

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criterion for determining the territorial operation of statutes, whether of the forum or of a foreign legal system. 12.11  This approach limits the operation of a statute of the forum by reference to choice of law rules.14 This can be rationalised in two ways. On the one hand, it has been held that there is a principle of statutory interpretation that requires that, unless there is express provision to the contrary, the statute be construed in accordance with the rules of private international law.15 So the statute applies in the forum courts by its own force and effect, but the statute itself is presumed to incorporate a localising rule that parallels a traditional choice of law rule. On the other hand, the forum court may apply a forum statute because the choice of law rule identifies the law of the forum as the law of the cause. The effect of the two approaches is the same. They can both be seen in Barcelo v Electrolytic Zinc Co of Australasia Ltd.16 12.12 In Barcelo, debentures were issued by Electrolytic under a trust deed that stated that it would be governed by the law of Victoria. Holders of debentures lived in Melbourne and London. In 1931, the Victorian Parliament passed the Financial Emergency Act 1931, which allowed interest payments to be made on debentures to be reduced, and payment of the reduced rate to discharge the company’s obligation to pay the full sum. Electrolytic sought a declaration in the Supreme Court of Victoria that, by paying a reduced sum of interest, it had met its interest obligations to the debenture holders. Its case was therefore that the Financial Emergency Act applied to the debentures. The common law choice of law rule identified the law of Victoria as the law of the cause. In the Full Court of the Supreme Court, it was held that the Act did apply to the debentures. The matter went on appeal to the High Court. There, Rich J held that the common law choice of law rule required the application of the law of Victoria to the interest obligations, and that this meant that the Act applied in this particular case.17 Dixon J held that, for statutes like the Financial Emergency Act that did not include localising rules, the ‘settled, if artificial rule of construction’ was that they were to be interpreted consistently with established rules of ‘international law’.18 Similarly, McTiernan J relied on English decisions that had construed statutes consistently with rules of private international law.19 Interpreting the Act in light of those principles, he

14.

15.

16. 17. 18. 19.

Huntingdale Village Pty Ltd (recs & mgrs apptd) v Corrs Chambers Westgarth (a firm) (No 3) [2016] WASC 366; L T Braunig, ‘Statutory Interpretation in a Choice of Law Context’ (2005) 80 New York University Law Review 1050; R D Leslie, ‘The Applicability of Domestic Law in Cases with a Foreign Element’ in D L Carey Miller and D W Meyers (eds), Comparative and Historical Essays in Scots Law, Butterworths, Edinburgh, 1992, pp 57–65. Barcelo v Electrolytic Zinc Co of Australasia Ltd (1932) 48 CLR 391 at 423–4; Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society (1934) 50 CLR 581 at 601. In Insight Vacations Pty Ltd v Young, the High Court accepted that this might be an appropriate criterion for determining the application of forum legislation, but stated that it is ‘not the only form of geographical limitation that may be adopted’ and held that it was a matter in each case of statutory construction, by reference to the context, subject matter and purpose of the statute: (2011) 243 CLR 149, 160; [2011] HCA 16. (1932) 48 CLR 391. At 406–7. At 423–4. At 444–8.

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found nothing to exclude the debenture from its territorial operation. Starke and Evatt JJ agreed in the result, but for different reasons.20 12.13  Australian courts have declined to apply this method in some contract cases, because the application of the subjective proper law of the contract would allow the parties to evade the application of otherwise applicable forum legislation.21 12.14  In two more recent cases, the High Court applied the choice of law rule to determine the effect of the forum statute. In Sykes v Cleary (No 2),22 one issue was whether the renunciation of all foreign allegiances in the oath of allegiance prescribed in the Australian Citizenship Act 1948 (Cth) was sufficient for purposes of Australian law to discharge foreign nationality. Mason CJ and Toohey and McHugh JJ held that it was not.23 The common law choice of law rule was that the holding of foreign nationality was to be determined by the relevant foreign law, and thus the effectiveness of its discharge was generally also to be determined by that same foreign law. Dawson J agreed with this approach,24 which has subsequently been confirmed.25 Brennan J also relied on this principle, holding it was more significant that foreign nationality was held under the foreign law than that it was renounced under the Act’s oath of allegiance.26 In all these judgments, the effect of the oath of allegiance prescribed by a forum statute is limited by the common law choice of law rule.27 Similarly, in Sweedman v Transport Accident Commission,28 an appeal from Victoria, Gleeson CJ and Gummow, Kirby and Hayne JJ held that the Transport Accident Act 1986 (Vic) should be applied to entitle the plaintiff to an indemnity from an out-of-state resident as the choice of law rule for indemnities indicated that the law of Victoria would govern the question.29 In none of these judgments was there any expansion on the relationship between the statute law of the forum and a common law choice of law rule. Sykes v Cleary (when excluding the statute) and Sweedman (when including the statute) both suggest a judicial method by which the common law choice of law rules define the operation of a forum statute. In its Choice of Law report, the Australian Law Reform Commission also favoured this approach on policy grounds.30 Indeed, when a parliament has not thought it necessary to consider the territorial operation of a statute by addressing the need for expressly including localising 20. 21.

22. 23. 24. 25. 26. 27.

28. 29. 30.

Starke J held (at 415) that a statute should be applied to the maximum extent of the parliament’s legislative authority, and Evatt J effectively suggested the same: at 433–4. Chubb Insurance Co of Australia Ltd v Moore (2013) 302 ALR 101 at 142–3; [2013] NSWCA 212, citing Kay’s Leasing Corp Pty Ltd v Fletcher (1964) 116 CLR 124 at 143. See, similarly, Insight Vacations Pty Ltd v Young (2011) 243 CLR 149 at 160; [2011] HCA 16; Old UGC Inc v Industrial Relations Commission of New South Wales (2006) 225 CLR 274 at 291–2; [2006] HCA 24. (1992) 176 CLR 77; see also 10.50–10.51. At 105–6. At 131. Sue v Hill (1999) 199 CLR 462; [1999] HCA 30 at [47]; Re Canavan (2017) 349 ALR 534; [2017] HCA 45 at [39]. Sykes v Cleary (No 2) (1992) 176 CLR 77at 113. In Sykes v Cleary (No 2), Gaudron J held (at 135–60) that the statute should take priority, but in Sue v Hill she agreed that the foreign law should be applied to determine whether a person is a citizen of that country: (1999) 199 CLR 462; [1999] HCA 30 at [175]. (2006) 226 CLR 362; [2006] HCA 8. At [25]–[32]. Australian Law Reform Commission, Choice of Law, Report No 58, AGPS, Canberra, 1992, pp 32–9.

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rules, it would only seem reasonable to treat the territorial operation of the forum’s statutes on the same terms as the territorial operation of its general law.

Ascertaining the application of the forum statute 12.15  The second method entails the court commencing by considering whether the forum statute is in terms applicable; if so, then it must be applied without reference to the normal choice of law process. The analogy is to the expressed self-limiting provision. Where a statute does not explicitly stipulate the scope of its operation, the court must infer its scope by a process of statutory interpretation. It is rare for parliament explicitly to state what effect a statute should be given in multi-state litigation, so often the courts are required to determine this without any express indication by parliament as to its intention. The courts normally do not answer this question in the abstract, but rather in the particular circumstances of the dispute; they appear to be disposed to find an implied criterion of operation which is identical to the facts of the dispute.31 12.16  Determining the application of generally-worded provisions to a cross-border case is a conventional exercise in statutory interpretation, to be done by reference to the context, subject matter and purpose of the relevant legislation.32 12.17 In Golden Acres Ltd v Queensland Estates Pty Ltd,33 the parties entered a contract that created an agency for the sale of land in Queensland. That state’s Auctioneers and Agents Act 1922 required agents for the sale of land to be licensed, and it regulated the amount of commission that could be charged. The contract stated that it was deemed to be made in Hong Kong, which Hoare J treated as a choice of Hong Kong law. In an action to recover the agent’s fees in the Supreme Court of Queensland, Hoare J applied the provisions of the Auctioneers and Agents Act prohibiting recovery of fees by an unlicensed agent. He held that the common law choice of law rule did not identify the law of Hong Kong as the law of the cause, as the parties’ choice of the law of Hong Kong was made in bad faith — effectively to avoid the restrictions imposed by the Queensland statute. The case went on appeal to the High Court,34 where Menzies J suggested that the Queensland statute could have been applied to prevent the recovery of agent’s fees by its own force and effect.35 That would mean the common law choice of law rule properly identified the law of Hong Kong as the law of the cause. However, the Queensland statute itself indicated that it was to apply to the case, and thus in Queensland the statute would override any inconsistent effect dictated by application of the common law. 12.18 In Will of Currie,36 the question before the Full Court of the Supreme Court of Victoria was the identification of the place where, for taxation purposes, mortgages of land 31.

32. 33. 34. 35. 36.

For example, in Lawson v Serco Ltd, Lord Hoffmann declined to identify the implicit criteria of application of s 94(1) of the Employment Rights Act 1996 (UK) in general terms: [2006] 1 All ER 823 at [23]. The criteria of application he identified were fashioned by reference to the factual circumstances of the three claims which were the subject of the appeal: at [28], [31], [34], [37]–[39]. Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16. [1969] Qd R 378. Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418. At 424–6. (1899) 25 VLR 224.

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in New South Wales were located. The effect of the common law choice of law rule was that the mortgages were located in New South Wales. However, in New South Wales, the land title statute under which the mortgages were registered deemed the mortgages to be under seal and, accordingly, located in Victoria where the mortgage documents were kept. Madden CJ indicated that although in New South Wales the mortgage documents would be regarded as being under seal, ‘the legislation of New South Wales … does not run into Victoria, and does not affect the people of Victoria’.37 So, the court treated the mortgages independently of the New South Wales land title statute, and held that they were located in New South Wales. 12.19 In Mynott v Barnard,38 a worker was killed during the construction of a mill in Tocumwal, New South Wales. He had lived in Victoria, where his employer was also based and where the contract of employment was entered. The worker’s dependants claimed compensation for his death under the Workers’ Compensation Act 1928 (Vic), and the question was whether it applied when the death occurred outside Victoria. The Act did not expressly contain any localising rules. In the High Court, Latham CJ held that the territorial operation of the statute must be identified by the general subject matter and character of the statute.39 Since the object of the Act was to compensate for injuries or death caused by accidents to workers, it could be assumed that the Act was to apply to accidents that occurred in Victoria and, accordingly, it was not to apply to accidents occurring in New South Wales. Starke J40 and McTiernan J41 effectively took the same approach. Dixon J thought that the right to workers’ compensation was annexed by the Act to employment relationships.42 That being so, the Act applied to ‘employments’ carried out within the state and not to those carried out in another place. Rich J seemed to hold that the Act, by implication, did not apply to employments carried out in other states, nor to accidents occurring outside Victoria.43 For these different reasons, the dependants could not claim compensation under the Victorian Act. 12.20  Mynott’s case represents a fictitious approach to determining the reach of a forum statute, and as the decision shows, it is inherently unpredictable because the court presumed a parliamentary intention that probably did not exist.44 However, in particular cases like workers’ compensation claims where common law choice of law rules cannot be used to suggest the scope of operation of the statute, it is probably the most practically credible approach to the problem. For the most part, though, divining a legislative intent where one was not genuinely entertained adds little of value to the proper application of statutes, and could trespass beyond any legitimate judicial function. In Old UGC Inc v Industrial Relations Commission of New South Wales, Gummow, Hayne, Callinan and Crennan JJ accepted that there is a presumption of statutory interpretation that ‘unless a contrary 37. 38. 39. 40. 41. 42. 43. 44.

At 233. (1939) 62 CLR 68. At 86. At 89. At 94. At 91. At 87. Cf Goliath Portland Cement Co Ltd v Bengtell (1994) 33 NSWLR 414 at 428.

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intention appears, statutory provisions are understood as having no application to matters governed by foreign law’.45 12.21 In Old UGC Inc v Industrial Relations Commission of New South Wales, an employee entered into an agreement with his employer, Old UGC (an American company) and that company’s Australian affiliate companies (the UGC parties). The agreement was for the purpose of resolving disputes between the employee and the UGC parties. It contained an express choice of the laws of the state of Colorado. The employee later brought proceedings in the Industrial Relations Commission of New South Wales, seeking relief under s 106(1) of the Industrial Relations Act 1996 (NSW), alleging that the agreement was, or had become, unfair, harsh and unconscionable. The High Court held that there was no question of reading s 106(1) down on the basis of any extraterritorial application of the provision, because the ‘central conception upon which the relevant provisions [of the Industrial Relations Act] fasten is the performance of work in an industry, and the work in question was performed within the jurisdiction’.46 The choice of law agreement was irrelevant in determining the application of the New South Wales legislation. 12.22 In Insight Vacations Pty Ltd v Young,47 the plaintiff, a New South Wales resident, purchased a package tour of Europe from an Australian company. The contract contained an express choice of New South Wales law as the governing law of the contract. The plaintiff was injured while on the tour in Slovakia, and brought proceedings in New South Wales against the defendant for breach of a term implied by the Trade Practices Act 1974 (Cth) in contracts for the provision of services, that those services must be rendered with due care and skill.48 The defendant relied on an exemption clause in the contract as excluding liability for any breach of the implied term. This involved consideration of a provision of the Civil Liability Act 2002 (NSW), concerning the effect of exclusion clauses.49 The High Court noted that the Civil Liability Act contains no provision for its extraterritorial application, but held that the relevant provision ‘should be read as subject to a geographical limitation to its application’.50 The court held that this required consideration of ‘the context and the subject matter of the Act’51 and concluded that the Civil Liability Act applied only to contracts for the supply of recreational services in the state, and therefore that the provision was inapplicable.

45. 46. 47. 48.

49.

50. 51.

(2006) 225 CLR 274 at 283; [2006] HCA 24, citing with approval a similar statement by Dixon J in WanganuiRangitikei Electric Power Board v Australian Mutual Provident Society (1934) 50 CLR 581 at 601. At 283. (2011) 243 CLR 149; [2011] HCA 16. Trade Practices Act 1974 (Cth) s 74(1) (since repealed; the Australian Consumer Law s 60 now establishes a consumer guarantee that services supplied to a consumer in trade or commerce will be rendered with due care and skill). Civil Liability Act 2002 (NSW) s 5N(1), which relevantly provides that ‘a term of a contract for the supply of recreational services may exclude … any liability … that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill’. (2011) 243 CLR 149 at 159; [2011] HCA 16. (2011) 243 CLR 149 at 159; [2011] HCA 16.

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Statutes of other places Foreign statutes 12.23  Foreign statutes will generally apply in a multi-state case only when the choice of law rule of the forum indicates that the relevant foreign law is the law of the cause.52 This principle mirrors the first method of dealing with forum statutes which do not define their scope of application explained above.53 Equally, if the question is whether a statute of, say, Ruritania is to apply in the forum, and the law of the cause is identified by the forum’s choice of law rules as the law of Hentzau, then the Ruritanian statute is necessarily inapplicable to the case. 12.24 In Mount Albert Borough Council v Australasian Temperance & General Mutual Life Assurance Society Ltd54 the question was, as in Barcelo’s case,55 whether the Financial Emergency Act 1931 (Vic) applied to reduce the interest payable on debentures. However, in Mount Albert the forum court was the Supreme Court of New Zealand, as the debenture holder was a local authority in New Zealand that had lent moneys on the debentures issued by a Victorian company. The local authority sued to recover the full sum of interest payable. The New Zealand Court of Appeal held that, as the Act did not apply to the debentures, the local authority was entitled to do so. This decision was affirmed by the Privy Council. Lord  Wright held that the debentures were governed by the law of New Zealand, which therefore, under the common law choice of law rule, would be the law of the cause. That being so, the merits of the case were to be determined by the law of New Zealand, and the Victorian statute had no application. 12.25  This straightforward principle deals with most cases involving the statute law of a foreign place. A forum court is obviously not concerned with the implications of having to apply a foreign statute by its own force and effect, as that statute does not operate as a command to the forum’s courts. But one complication can arise in considering the application of the statute law of another territory, akin to the problem of renvoi.56 The choice of law rule might indicate that the law of Ruritania is the law of the cause. However, the statute in Ruritania might contain its own localising rules, which indicate that it is not to apply in the case.57 If effect is to be given to that statute, what law is to apply? 12.26 In Sayers v International Drilling Co NV,58 the action was brought in England by an English employee against his Dutch employer for negligence. The employer pleaded a provision in the employment agreement which exempted it from liability in tort, and limited the employee’s rights to a corporate compensation scheme. The exemption clause was invalid under both the law of England and the Dutch Civil Code. However, the code 52. 53. 54. 55. 56. 57. 58.

Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 442–3. See 12.10–12.14. [1938] AC 224. (1932) 48 CLR 391; see also 12.12. See 8.13–8.35. It is also possible that the foreign statute might contain a choice of law rule, which might lead to the application of the law of another country — the forum or a third legal system. [1971] 3 All ER 163.

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only applied to employment relationships made between Dutch parties. It did not apply to an ‘international contract of employment’, and the evidence suggested that in such a case the exemption clause would be effective. The English Court of Appeal identified the law of the Netherlands as the law of the cause. On that ground it did not apply the Dutch Civil Code, but rather the evidence that for international contracts the exemption clause would be an effective defence to the action.59 12.27  The fortunate aspect of Sayers60 is that there was evidence as to what the result would be when the Dutch statute did not apply according to its own localising rules. Even here, Salmon LJ seems to have some doubt as to the accuracy of that evidence.61 This evidence will not always be available. In Augustus v Permanent Trustee Co (Canberra) Ltd,62 a settlement that offended the common law rule against perpetuities was executed in the Australian Capital Territory. The validity of the settlement was subsequently raised in the territory’s Supreme Court, and on appeal in the High Court. Walsh J found that, for all relevant purposes, the deed was governed by the law of New South Wales which was, accordingly, the law of the cause. The Conveyancing Act 1919 (NSW) cured the perpetuity problem, but it was argued that the Act only applied to settlements made in New South Wales. Walsh J rejected this argument and upheld the settlement, but a point arises as to the appropriate outcome if this argument had been established.63 It is possible that, where the foreign place is a common law jurisdiction, the inapplicability of the statute would lead to the application of the common law. Still, that result is somewhat strange as it means that the outcome for the case may not be the same as if it were regarded as a purely domestic case in either the forum or the foreign place. The case is then effectively resolved by a third legal system that has no real contemporary existence as a body of municipal law.

Interstate statutes 12.28  These principles generally apply even where the other place is a state or territory of Australia. However, there may be additional grounds that would lead to the application of the statute law of another state or territory in circumstances in which the statute law of another country would not be applied. Section 118 of the Commonwealth Constitution — the full faith and credit clause — can certainly require a recognition of another state’s statutes that is not necessarily accorded to those of another country.64 Further, it might afford additional grounds for applying the state’s statute law in the first place. 12.29  Borg Warner does not suggest that another state’s statute law is to be applied in circumstances where the choice of law rule would demand otherwise. It nevertheless 59.

60. 61. 62. 63. 64.

Most writers agree that provisions in foreign statutes that limit the scope of application of those statutes should be applied, even in legal systems which do not accept renvoi: F A Mann, ‘Statutes and the Conflict of Laws’ (1972–73) 46 British Yearbook of International Law 117 at 129–31; P Nygh, Autonomy in International Contracts, Oxford University Press, Oxford, 1999, p 216. Cf K Lipstein, ‘Inherent Limitations in Statutes and the Conflict of Laws’ (1977) 26 International and Comparative Law Quarterly 884 at 892. [1971] 3 All ER 163. At 167. (1971) 124 CLR 245. At 259. See 11.8–11.20.

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indicates that interstate statutory rights that are not possible to classify in traditional choice of law categories can be enforced by the courts of the forum, so long as the courts have jurisdiction over the parties and the statute applies in its own terms to the circumstances of the case. The more recent adjudication on s 118 suggests that it has a role — even prior to that — in shaping the content of a choice of law rule that indicates whether another state’s statute should apply.65 This could lead to reconsideration of the Borg Warner approach, but there has been as yet no clarification of this point. The cross-vesting scheme now provides a separate ground by which another state’s or territory’s statute can be applied in the Supreme Court of the forum, but adds further complexity to the enforcement of interstate statute law.

Interstate statutes under the cross-vesting scheme66 12.30  The cross-vesting scheme was introduced primarily to resolve conflicts in jurisdiction between the superior courts of the country — although since Re Wakim; Ex parte McNally67 it has been recognised that the Federal Court and the Family Court of Australia do not receive any additional jurisdiction under the scheme.68 The cross-vesting scheme principally concerns reforms to jurisdiction, but it also includes several modifications to choice of law rules. These are set out in s 11 of the Jurisdiction of Courts (Cross-vesting) Acts. In general, by s 11(1)(a) a court exercising cross-vested jurisdiction will apply the choice of law rules of the state or territory in which the court is sitting. This general rule is subject to s 11(1)(b), which — so far as it is relevant — 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 the Commonwealth or a State relating to cross-vesting of jurisdiction … 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 …

Operation of s 11(1)(b) 12.31  Section 11(1)(b) of the Jurisdiction of Courts (Cross-vesting) Acts is one of the most profound and complex reforms to private international law in Australia, and one which itself is desperately in need of reform. The provision creates a new choice of law rule. In certain conditions, a court is to determine a dispute in accordance with ‘the written and unwritten law’ of another state or territory. The ‘written law’ of another state or territory

65. 66.

67. 68.

See 11.8–11.20. The issues raised in this section were first discussed in K Mason and J Crawford, ‘The Cross-vesting Scheme’ (1988) 62 Australian Law Journal 328; D Kelly and J Crawford, ‘Choice of Law Under the Cross-Vesting Legislation’ (1988) 62 Australian Law Journal 589; and G Griffith, D Rose and S Gageler, ‘Choice of Law in Cross-vested Jurisdiction: A Reply to Kelly & Crawford’ (1988) 62 Australian Law Journal 698. The discussion that follows restates the arguments in the exchange in the Australian Law Journal, but attempts to account for the effect that Re Wakim; Ex parte McNally (1999) 198 CLR 511 has had on the cross-vesting of state jurisdictions. (1999) 198 CLR 511. See 2.29.

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means its statutes. The ‘unwritten law’ refers to the common law applicable in that state or territory. However, the common law is uniform throughout Australia and, therefore, there is no difference between the common law applicable in one state or territory and another. But the term ‘unwritten law’ could also include customs and usages that are law in some external territories, and any Aboriginal or Islander customs and usages that might be recognised as municipal law. These are more likely to differ from to state to state.70 The result is that, in certain conditions, a court is to determine an interstate case in accordance with all of another state’s or territory’s law, even if the usual common law choice of law rule would not have required that place’s law to determine the case. 69

12.32 In Australian Broadcasting Corp v Waterhouse,71 the Supreme Court of New South Wales had to deal with an allegation of defamation based on a national television broadcast by the Australian Broadcasting Corporation. The court was exercising crossvested jurisdiction, having received the proceeding by a transfer from the Supreme Court of the Australian Capital Territory. The approach commonly taken in these national defamations at the time was to assume a ‘multiple simultaneous tort’: that is, that a tort was committed separately in each state and territory. The common law choice of law rule of the time required application of the law of the forum and the law of the place where the tort occurred for each interstate tort.72 So, for the defamation in Victoria the Supreme Court would have to apply the law of New South Wales (the forum) and the law of Victoria, for the defamation in South Australia it would have to apply the law of New South Wales and the law of South Australia, and so on. However, s 11(1)(b) had to be applied to any defamations that occurred in Queensland and Tasmania, because in those states the right to sue for defamation was based on a statute. Therefore, for the defamation in Queensland, the law of Queensland alone would be applied, as s 11(1)(b) demanded that, unlike the common law choice of law rule, the whole of that state’s written and unwritten law determine the matter.73 12.33  There are two preconditions to the operation of s 11(1)(b): • the matter must be ‘a right of action’ arising under the statute law of another state or territory; and • it must appear to the court that it ‘will, or will be likely to’ be exercising jurisdiction conferred by the Cross-vesting Acts. 12.34  ‘A right of action’ certainly includes a claim (or a counterclaim) based on rights created solely by the statute of another state or territory. It probably also includes a statute-based proceeding for the enforcement of a common law right: that is, where the right depends upon a statute for its enforcement even though it does not wholly owe its

69. 70. 71. 72. 73.

Australian Broadcasting Corp v Waterhouse (1991) 25 NSWLR 519 at 523. David Syme & Co Ltd v Grey (1992) 115 ALR 247 at 259. (1991) 25 NSWLR 519; (1992) 27 NSWLR 1. The common law choice of law rule no longer applies to defamations that occur within Australia only: see 18.18–18.21. Australian Broadcasting Corp v Waterhouse (1991) 25 NSWLR 519 at 524–5; Waterhouse & Allen v Australian Broadcasting Corp (1992) 27 NSWLR 1 at 3–4.

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Private International Law in Australia

existence to the statute. There is some question as to whether ‘a right of action’ includes a statute-based defence — a proceeding in which the defence against a common law liability or obligation is provided by the statute so that the determination of the proceeding depends upon the operation of the statute.75 Since s 11(1)(b) refers to ‘a right of action’ and not merely ‘a right’, it is difficult to see how a statute-based defence could be encompassed by this term. A defence does not provide a right to bring a proceeding. It merely gives a right to resist a claim (or counterclaim). If a plaintiff sought to enforce a statute-based right or brought a statute-based action to enforce a common law right then, because s 11(1)(b) requires all of the other state’s or territory’s law to be applied, the defendant could raise any relevant defence, whether based on statute or common law.76 But a statute-based defence alone is not, arguably, included in the normal meaning of ‘a right of action’ and, it is suggested, probably could not activate the operation of s 11(1)(b). 74

12.35  The second precondition to the operation of s 11(1)(b) is that it must appear to the court that it ‘will, or will be likely to’ be exercising jurisdiction conferred by the Cross-vesting Acts. The circumstances in which a superior court is exercising cross-vested jurisdiction are discussed in Chapter 2.77 It was there argued that a court exercises cross-vested jurisdiction whenever it has no subject matter jurisdiction to determine the proceeding.78 One example is when a suit involves the determination of title or trespass to land in another state or territory (unless the proceeding is brought in New South Wales or the Australian Capital Territory, where jurisdiction now exists to adjudicate such a claim). Another situation would be where a plaintiff seeks to rely on a statute of another state or territory in circumstances where such legislation would not be ‘picked up’ by the common law choice of law rules. As argued at 2.35, cross-vested jurisdiction is essentially supplementary and so can never overlap with a court’s ordinary, non-cross-vested jurisdiction. This conclusion is consistent with the analysis of Gummow J in David Syme & Co Ltd v Grey79 and Mason and Crawford.80 12.36  A point that needs to be addressed, however, is an apparent inconsistency between the federal cross-vesting legislation and the equivalent state legislation. The federal cross-vesting legislation invests the jurisdiction of the Federal and Family Courts in the state (including internal territory) Supreme Courts, and the jurisdiction of the external territory Supreme Courts in the Federal and Family Courts and the state Supreme Courts.81 In both cases, the federal cross-vesting legislation only invests that jurisdiction which, apart from s 4 of the federal Act, the invested courts did not already have.82 Therefore, a state Supreme Court cannot be exercising cross-vested jurisdiction under the federal legislation until it has exhausted its own jurisdiction. In contrast, 74. 75. 76. 77. 78.

79. 80. 81. 82.

David Syme & Co Ltd v Grey (1992) 115 ALR 247 at 260. David Syme & Co Ltd v Grey (1992) 115 ALR 247 at 260. Waterhouse & Allen v Australian Broadcasting Corp (1992) 27 NSWLR 1 at 3. See 2.28–2.36. Cf Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 16) [2017] WASC 340 at [103] (although this case concerned the application of s 11(1)(c) of the cross-vesting legislation, Kenneth Martin J had first to determine whether the chapeau to s 11(1) was satisfied). (1992) 115 ALR 247 at 273–4. Mason and Crawford, above n 66, at 335. Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4. Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4(1)(b), (2)(b).

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the state cross-vesting legislation is, on its literal terms, broader. It invests jurisdiction relating to a ‘State matter’ in the other state and territory Supreme Courts.83 It does not — as decided in Wakim84 — invest any state jurisdiction in the Federal Court or the Family Court of Australia. A ‘State matter’ includes ‘a matter … in which the [state] Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State’. Therefore, on one interpretation,85 the state legislation, unlike the federal legislation, could invest the other Supreme Courts with a jurisdiction they already had, with the result that a Supreme Court could be exercising cross-vested jurisdiction and non-cross-vested jurisdiction at the same time. It is suggested, however, that despite the literal differences in scope between the federal and state legislation, a purposive and logical interpretation of the state provision must lead to a rejection of this view. Consequently, the effect of the state legislation is that the only ‘jurisdiction’ that is invested in other state courts under the cross-vesting scheme is jurisdiction that such courts never had, namely, cross-vested jurisdiction. It is highly unlikely that the drafters intended to create the confusing and absurd spectre of overlapping or concurrent jurisdiction. The preferred approach to s 11(1)(b), therefore, is that it only applies in the narrow situation of cross-vested jurisdiction discussed above, where a plaintiff or defendant pleads a claim or counterclaim based on the law of another state in circumstances where such law would not be selected by common law choice of law rules. Yet, even in this context, s 11(1)(b) may be criticised for making ‘the lex causae … be selected by a criterion of uncertain and unspecific application’, with the potential for ‘anomalous results’.86 The provision may also lead to the application of a state’s statute to circumstances where the state has no real connection to the dispute or the parties, since no territorial limitation is expressed in the provision. For these reasons, we suggest, in line with the Australian Law Reform Commission recommendation in the Choice of Law report,87 that s 11(1)(b) be repealed.88

83.

84. 85. 86. 87. 88.

Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) s 4; Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 4; Jurisdiction of Courts (Cross-vesting) Act 1987 (NT) s 4; Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld) s 4; Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) s 4; Jurisdiction of Courts (Crossvesting) Act 1987 (Tas) s 4; Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s 4; Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) s 4. Re Wakim; Ex Parte McNally (1999) 198 CLR 511. Cf E I Sykes and M C Pryles, Australian Private International Law, 3rd ed, Law Book Co, Sydney, 1991, pp 56–7. David Syme & Co Ltd v Grey (1992) 115 ALR 247 at 273 (Gummow J). Australian Law Reform Commission, above n 30, pp 24–6. See, for a fuller discussion, R Garnett, ‘The Dominance of Uniformity of Outcome in Australian Choice of Law: Is It Time to Relax the Grip?’ (2013) 37 Australian Bar Review 192 at 210–12.

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PART 4 International Family Law

Chapter 13 The Validity of Marriages and Other Adult Relationships Introduction 13.1  In Australia, family law is largely a federal concern. Although it has had the power to make laws with respect to marriage and matrimonial causes since Federation, the Federal Parliament only exercised exclusive power in these matters, respectively, in 1961 and 1959, with the passage of the Marriage Act 1961 (Cth) and the Matrimonial Causes Act 1959 (Cth). The latter was replaced by the Family Law Act 1975 (Cth). The states and territories have a residual power to make laws relating to de facto relationships and children born outside marriage, although even here powers relating to ex-nuptial children have been referred to the Federal Parliament by all states except Western Australia. Furthermore, the process of giving legal status to same-sex unions began with the states and territories. Since the passage of the Marriage Act 1961 (Cth), states and territories have been constitutionally unable to recognise a union created under state or territory law as a ‘marriage’.1 As legal recognition of same-sex unions in some states and territories preceded federal recognition of same-sex marriages in 2017,2 these other adult relationships are referred to in the legislation as ‘significant relationships’, ‘registered relationships’ ‘civil unions’ or ‘civil partnerships’. They continue to exist under some state and territory laws but are exclusive of a ‘marriage’ recognised under the Marriage Act. For the purposes of the private international law of Australia, however, the predominant federal responsibility for this department of the law means that there will not usually be a conflict of laws relating to a marriage or a matrimonial cause within Australia. The cases will now almost always be international.3 13.2  The choice of law rules relating to the validity of a marriage have undergone some significant development in recent times. In 1985, Australia implemented the Hague Convention on Celebration and Recognition of the Validity of Marriages 1978, an attempt to standardise and simplify the rules relating to multi-state marriages by providing that, in general, issues relating to marriage are to be determined by the law of the place where the marriage was solemnised (lex loci celebrationis).4 This convention has, nevertheless, failed to provide the support needed for international agreement on the private international 1. 2. 3. 4.

Commonwealth v Australian Capital Territory (2013) 250 CLR 441; [2013] HCA 55. Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth). See 1.8. Convention on Celebration and Recognition of the Validity of Marriages Art 9, 14 March 1978, Hague, No 26 (entered into force 1 May 1991).

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law of marriage — Australia remains one of three countries to have entered it into force, and no country has ratified the convention since 1991.5 Still, the immediate effect that implementation of the convention has had on the choice of law rules for marriage is to introduce differences to the rules applicable to three separate categories of marriage: • marriages solemnised in Australia before 7 April 1986; • marriages solemnised in Australia from 7 April 1986; and • marriages solemnised outside Australia. 13.3  In this chapter, the choice of law rules applicable to each category are considered in turn. The recognition of other adult relationships in some Australian jurisdictions will also be considered. However, there are two other matters that must be considered before the choice of marriage rules introduced by implementation of the Hague Convention can be understood. The first is the concept of marriage. Although the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) brought fundamental changes to the legal concept of marriage in Australia in its recognition of same-sex marriages, the Marriage Act and the common law still place restrictions on the kinds of relationship that will be recognised as a ‘marriage’ in Australia. The second preliminary matter to consider is the common law regime for choice of law in marriage. This is because there remains some scope for the common law rules of private international law to be applied in questions relating to the validity of marriages solemnised in Australia before 7 April 1986,6 and those relating to marriages solemnised outside Australia.7 13.4  The question whether a multi-state marriage is to be recognised as valid in Australia can arise in any number of ways. It is the primary issue to be determined in proceedings for the declaration of the validity of a marriage,8 and in proceedings for annulment.9 However, it can still loom large as a preliminary or incidental question in other proceedings. The most common are probably proceedings for dissolution, when a court may first have to decide whether there is a marriage that is capable of being dissolved.10 In addition, the existence of a valid marriage might be relevant in determining whether: a marriage has revoked a will;11 a spouse or child is entitled to an inheritance;12 a child is legitimate;13 a couple is eligible to adopt a child;14 a person is entitled by statute to taxation relief on account of a spouse;15 whether a person has a statutory obligation to maintain a spouse;16 or a person has illegally

5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

Luxembourg and The Netherlands are the other countries. Marriage Act 1961 (Cth) s 22. Marriage Act 1961 (Cth) s 88E(1). Family Law Act 1975 (Cth) s 4(1)(b). Family Law Act 1975 (Cth) s 4(1)(a): see Landon & Yin [2016] FamCA 1068. In the Marriage of Barriga (No 2) (1981) 7 Fam LR 909. In the Will of Swan (1871) 2 VR (IE&M) 47. Haque v Haque (No 1) (1962) 108 CLR 230. Starkowski (otherwise Urbanski) v Attorney-General [1954] AC 155. Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v HR & CD [2016] NSWSC 1926 at [65], [77]. Nabi v Heaton (Inspector of Taxes) [1981] 1 WLR 1052. Imam Din v National Assistance Board [1967] 2 QB 213.

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13.7

arranged a marriage to give one of the parties an entitlement to a visa to live in Australia.17 This list is not exhaustive. The question could arise in any other connection.

The legal concept of marriage 13.5  The Marriage Act defines the concept of marriage to mean the union of two people to the exclusion of all others, voluntarily entered into for life.18 This definition does not give a completely accurate description of the legal nature of a marriage in Australian law. While, for the most part, a couple might enter the union with the intent that it be for life, Australian law does not maintain that it be indissoluble. As a result, the essential elements of the legal concept of a statutory marriage are that the relationship is a voluntary union, of indefinite duration (and not indissoluble) and monogamous. Although it seems likely that the common law no longer restricts the definition of marriage to heterosexual unions,19 the statutory definition was introduced by the Marriage Amendment Act 2004 (Cth) with a view to providing that a foreign homosexual union could not be recognised as a marriage under federal Australian law. 13.6  The definition of marriage given in the Marriage Act was introduced by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth),20 bringing a fundamental change to the concept of marriage in Australian law by enabling same-sex marriages to be solemnised from 9 December 2017. Up to that date, a marriage in Australia could only have been made between a man and a woman, and a foreign marriage could only be recognised in Australia if, among other requirements, it was a heterosexual union. The Marriage Act stated this expressly between 2004 and 2017,21 although before then the need for a heterosexual union had almost certainly been a requirement of the common law definition of marriage. Lord Penzance’s legal definition of a marriage’ in Hyde v Hyde and Woodmansee22 was that the law of England was built on the assumption of a Christian marriage: that is, ‘the voluntary union for life of one man and one woman to the exclusion of all others’.23 Hyde was repeatedly reinforced by the English courts as providing the legal definition of marriage.24 13.7  Hyde v  Hyde related to proceedings in England for the dissolution of a marriage conducted in Utah in accordance with Mormon rites — at a time when Mormonism practised polygamy. The decree of divorce was refused because, while not actually polygamous, the marriage was potentially polygamous. Lord Penzance refused to order any remedy that could otherwise be granted by an English court because, given the definition of a Christian marriage, the law of England could not cope with a potentially or actually 17. 18. 19. 20. 21. 22. 23. 24.

R v Gowda; R v Mashru [2018] QCA 31 at [69]–[71]. Marriage Act 1961 (Cth) s 5. See 13.7. Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) s 3, Sch 1. Marriage Act 1961 (Cth) ss 5(1), 88B(4) (repealed). (1866) LR 1 P&D 130. Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130 at 133. Corbett v Corbett [1971] P 83; Bellinger v Bellinger [2003] 2 AC 467 at 480; Wilkinson v Kitzinger [2006] EWHC 2022 at [11] (Fam).

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polygamous  union. Hyde drove a distinction between monogamous and potentially (but  not actually) polygamous marriages that is probably unnecessary. However, even Lord Penzance’s position on the jurisdiction of the courts to adjudge matrimonial causes relating to potentially or actually polygamous marriages must now be qualified, and the recognition of polygamous marriages for other purposes has become common. Further, in Australia it would seem most likely that the common law’s definition of marriage as given in Hyde has also been superseded. When in Commonwealth v  Australian Capital Territory (the Same-Sex Marriage Case)25 the High Court was asked to test the territory’s power to legislate for same-sex marriages, it defined the term ‘marriage’ in the Australian Constitution as:26 … a consensual union formed between natural persons in accordance with legal prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.

The High Court held that the Commonwealth Parliament therefore had power to legislate for homosexual marriages even though, at that point, it had not. In 2013, the Commonwealth had opted to limit the recognition as marriages of heterosexual unions only — and so the territory’s attempt to legislate for same-sex marriages was inconsistent with the Marriage Act and invalid. In the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), the Commonwealth has since exercised the power to legislate for the solemnisation of same-sex marriages that the High Court recognised in the SameSex Marriage Case. There must also be a strong argument that the Same-Sex Marriage Case definition of marriage has replaced the Hyde v Hyde approach at common law. If that is so, it brings a fundamental change to the nature of unions that are capable of being recognised as a marriage at common law — as the definition not only removes the sex or gender of the parties as a relevant criterion for a marriage, it also does not exclude the recognition of polygamous unions as marriages, and expressly recognises the dissolubility of the union.

Voluntary union 13.8  The marriage relationship is one entered only with the voluntary consent of the man and woman involved. Indeed, the mere agreement of the parties to live as husband and wife was the only requirement imposed by the medieval canon law for a relationship to be recognised as a marriage. It is therefore the basis of the English ‘common law marriage’,27 and the Scots ‘irregular marriage’.28 The Same-Sex Marriage Case definition of marriage requires that it be a ‘consensual union’,29 and the Marriage Act reinforces this assumption in its requirement that each party’s consent to the marriage be real. A party’s consent must not be given under duress or fraud, on the basis of a mistake as to the other party’s identity

25. 26. 27. 28. 29.

(2013) 250 CLR 441; [2013] HCA 55. At 461. Lazarewicz v Lazarewicz [1962] P 171 at 177. Lapsley v Grierson (1845) 8 D 34 at 47. (2013) 250 CLR 441 at 461; [2013] HCA 55.

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or as to the effect of the wedding ceremony, or without the requisite mental capacity. This is also a mandatory requirement imposed by the law of Australia in considering whether a marriage solemnised outside Australia is to be recognised.31 So long as they are also of marriageable age, it is only the parties’ consent to the marriage that is relevant. Under the internal law of Australia, parental and judicial consent to a marriage is only required when a party is under the marriageable age: that is, 18 years.32 30

Indefinite duration 13.9  The notion that a marriage is a relationship for life originates in the Roman canon law, which does not consider that a marriage can ever be dissolved while both parties are living. However, even when in 1866 Lord Penzance stated the definition of a Christian marriage, it was inaccurate to hold that under English law a marriage was for life. For whenever (irrespective of the grounds) the law recognises that a marriage can be dissolved a vinculo matrimonii, it must assume that a marriage might not subsist until the parties are separated by death. Nor at present is it adequate to define marriage as a relationship that, at the time it was entered, the parties had intended to be for life, even if capable of subsequent dissolution.33 The parties may solemnise a marriage in Australia in accordance with the provisions of the Marriage Act to take temporary advantage of, for instance, student assistance benefits available to married couples, with the full intention of later dissolving the relationship. This would still qualify as a marriage in Australia. The Same-Sex Marriage Case requires that it be ‘intended to endure and be terminable only in accordance with law’.34 Probably the best that can be said is that marriage is a relationship for an indefinite period. It will subsist for life unless earlier dissolved in accordance with the law.

The sex or gender of the parties 13.10  Since 9 December 2017, the sex or gender of the parties is not a relevant criterion for the creation of a valid legal marriage. The Marriage Amendment (Definition and Religious Freedoms) Act provides that a marriage is the union of two people.35 As has been seen, in the Same-Sex Marriage Case the definition of marriage was conclusively stated for constitutional purposes to be a ‘union formed between natural persons’36 and, therefore, this is probably also now the common law definition of marriage. Marriage may therefore include unions that are heterosexual, homosexual or involving intersex people. 13.11  The requirement before 9 December 2017 that a marriage be a union between a man and a woman may nevertheless continue to have relevance in Australian law. This may especially be the case when the question concerns the recognition of a same-sex 30. 31. 32. 33. 34. 35. 36.

Marriage Act 1961 (Cth) ss 5, 23(1)(d), 23B(1)(d). Marriage Act 1961 (Cth) s 88D(2)(d). Marriage Act 1961 (Cth) ss 10–14. Nachimson v Nachimson [1930] P 217. (2013) 250 CLR 441 at 461; [2013] HCA 55. Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) s 3, Sch 1; Marriage Act 1961 (Cth) s 5(1). (2013) 250 CLR 441 at 461; [2013] HCA 55.

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union solemnised outside Australia before that date and at least one of the parties was an Australian.37 Before 9 December 2017, the Marriage Act probably rested on the definition of marriage in Hyde and, from 2004, the Act expressly provided that a marriage could only be solemnised or recognised in Australia if it involved a man and a woman.38 The requirement of heterosexuality was then relevant where one of the parties to the marriage had undergone gender reassignment or was genuinely intersexual. In the English High Court decision in Corbett v Corbett39 and the English Court of Appeal’s decision in Bellinger v Bellinger40 the marriages were, in each case, between a man and a transsexual person who was born male but had undergone gender reassignment surgery. In each case, the marriage was annulled on the ground that the transsexual person could not be regarded in law as a woman. Australian law had, however, been prepared to recognise a post-operative male-to-female person as a woman for social security purposes when that person was both anatomically and psychologically female.41 And, in its decision in Attorney-General v Kevin42 the Full Court of the Family Court distinguished Corbett and the Court of Appeal’s decision in Bellinger, and declared that a marriage between a woman and a post-operative transsexual male was valid. In doing so, the Full Court held that a transsexual person, born female, could be regarded in law as a man. A person’s ‘brain sex’ and the fact that the person had undergone gender reassignment surgery were at least of equal importance as the person’s gender at birth.43 The court was not prepared to extend this validity to marriages involving pre-operative transsexuals. In the case of C and D44 the husband was born a genuine intersex person, but had had corrective surgery to remove his female organs. The Family Court annulled the marriage on the ground that the wife had been mistaken as to the husband’s identity, and specifically his gender.45 However, the court in the case of Kevin held that C and D was wrongly decided and should not be regarded as expressing the law of Australia.46 The Full Court in Kevin held that the more recent English case of W v W,47 where the English court held that intersex people could effectively choose their gender and marry, was the law in Australia.48 Therefore, the Family Court’s classification of the husband’s gender in Kevin suggested that an apparently heterosexual union involving a post-operative transsexual or an intersex person would be recognised as a marriage in Australia, even if it was not recognised as such in some other place.49 However, on the state of the authorities, C and D may only be wrongly decided — or incompatible with Kevin — if the intersex person had chosen either a male or female identity (as in W v W) and there had been gender reassignment 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49.

See 13.56. Marriage Act 1961 (Cth) ss 5(1), 88B(4) (repealed). [1971] P 83; see also R v Tan [1983] QB 1053; S-T (formerly J) v J [1998] Fam 103. (2002) 1 All ER 311. Secretary, Dept of Social Security v SRA (1993) 118 ALR 467. (2003) 30 Fam LR 1; [2003] FamCA 94. At 36. (1979) 5 Fam LR 636. At 640. Attorney-General for the Commonwealth v Kevin (2003) 30 Fam LR 1 at 41; [2003] FamCA 94. [2001] 2 WLR 674. Attorney-General for the Commonwealth v Kevin (2003) 30 Fam LR 1 at 41; [2003] FamCA 94. For critiques, see A Bainham, ‘Does Sex Matter?’ [2002] Cambridge Law Journal 44 at 47; S Bird, ‘Re Kevin (Validity of Marriage of Transsexual) [2001] Fam CA 1074’ (2002) 6 Southern Cross University Law Review 364.

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surgery to give effect to that choice. C and D itself was a case where it may have been the surgeons who opted to give the person a male gender identity, and therefore may not have been analogous with the conditions of individual choice of gender that informed Kevin and W v W. Regardless of the status of C and D, it seems to have been the case in Australia that an intersex person could not marry if they had not chosen a specific male or female identity. 13.12  After Kevin was decided, the House of Lords considered the appeal in Bellinger.50 It  confirmed the Court of Appeal’s decision that a male-to-female transsexual person who had undergone gender reassignment surgery was still to be regarded as a man. Their Lordships unanimously refused to follow that Australian decision in Kevin.51 The House of Lords was nevertheless prepared to hold that, in this respect, English law was in violation of the European Convention on Human Rights, and issued a declaration of incompatibility to that effect.52

Other recognised adult relationships 13.13  Before 9 December 2017, when the Marriage Act first provided that a ‘marriage’ in Australia could include same-sex unions, some states and territories enabled any two people, regardless of their sex or gender, to form other kinds of legally-recognised adult unions. These do not have the status of marriage, and are available as an alternative to marriage. In the Australian Capital Territory, a ‘civil union’ is a ‘legally recognised relationship’53 and may be entered by any two people.54 A similar status is recognised in New South Wales and South Australia as a ‘registered relationship’;55 in Queensland as a ‘civil partnership’;56 in Tasmania as a ‘significant relationship’;57 and in Victoria as a ‘registered domestic relationship’.58 The elements of these unions largely parallel the requirements for a marriage in Australia. Thus, the requirements of age, and of prohibited relationships, are largely the same as those for marriages.59 The parties must be aged at least 18 years.60 In the Australian Capital Territory, New South Wales, Queensland, South Australia and Tasmania, they cannot be in lineal descent to each other or siblings.61 The Victorian legislation does not expressly state any limitations of consanguinity (blood relationship) for registered domestic relationships. There are no limitations of affinity. In New South Wales and South Australia,

50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60.

61.

Bellinger v Bellinger [2003] 2 WLR 1174. At 1184, 1189. At 1187, 1192, 1194–5. See also Goodwin v United Kingdom (2002) 35 EHRR 18. Civil Unions Act 2008 (ACT) s 6(1). Civil Unions Act 2008 (ACT) s 9(1). Relationships Register Act 2010 (NSW) ss 4–5; Relationships Register Act 2016 (SA) ss 4–5. Civil Partnerships Act 2011 (Qld) s 4(1). Relationships Act 2003 (Tas) ss 4, 7. Relationships Act 2008 (Vic) ss 5, 10. See 13.42. Civil Unions Act 2008 (ACT) s 7(d); Relationships Register Act 2010 (NSW) ss 4(1), 5; Civil Partnerships Act  2011 (Qld) s  4(1); Relationships Register Act  2016 (SA) s  4; Relationships Act  2003 (Tas) s  11; Relationships Act 2008 (Vic) s 3. Civil Unions Act 2008 (ACT) s 6(b); Relationships Register Act 2010 (NSW) ss 4(1), 5; Civil Partnerships Act 2011 (Qld) s 5(b); Relationships Register Act 2016 (SA) s 5(3)(d), (4); Relationships Act 2003 (Tas) ss 4, 7.

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the requirements for reality of consent also largely match those for marriage. The registered relationship is void if agreement to enter the union was obtained improperly, or by fraud or duress, or if one of the parties was incapable of understanding the nature and effect of the registration.62 Although the legislation is principally designed to provide an opportunity for same-sex unions to be given legal recognition, it also allows the possibility for heterosexual unions to be registered for the same kind of recognition. In all cases, the relationship must be monogamous — involving an exclusive ‘couple’63 — and therefore neither party can be already married or within another registered union.64 The relationship is then given legal status by registration65 or, in the Australian Capital Territory, when the parties make a declaration before a civil celebrant and a witness.66 Personal connections with the relevant jurisdiction are required before registration or a declaration is allowed. In the Australian Capital Territory, New South Wales, Queensland and South Australia, at least one of the parties must be resident in the jurisdiction.67 In Tasmania and Victoria, both parties must be domiciled or ordinarily resident in the state.68

Monogamous union 13.14  An enduring, and intractable, question concerning the legal concept of marriage has been whether it is only a legally and actually monogamous marriage that will be recognised, or whether concessions are to be made to the recognition of potentially or actually polygamous marriages. The position is a little confused, but it can now be said that for most purposes the law recognises polygamous marriages. This is an understandable development, as a good proportion of the world’s marriages would be ignored if the law did not. Further, although Hyde v Hyde69 explicitly rejected the recognition of potentially (as well as actually) polygamous unions at common law, the definition of marriage in the Same-Sex Marriage Case70 includes ‘a consensual union formed between natural persons’71 and does not provide that it be to the exclusion of others.72 The Marriage Act itself strictly provides only for monogamous unions in providing that marriage is ‘the union of 2 people to the exclusion of others’.73 However, to the extent that the common law of Australia has 62. 63. 64.

65. 66. 67. 68. 69. 70. 71. 72. 73.

Relationships Register Act 2010 (NSW) s 14(1)(b)–(c); Relationships Register Act 2016 (SA) s 14(1)(b)–(c); and see 13.41. Relationships Register Act 2010 (NSW) s 5(1), (3)(c); Relationships Act 2003 (Tas) s 4(1)(a); Relationships Act 2008 (Vic) s 5. Civil Unions Act  2008 (ACT) s  7(b); Relationships Register Act  2010 (NSW) s  5(3); Civil Partnerships Act 2011 (Qld) s 5(a); Relationships Register Act 2016 (SA) s 8; Relationships Act 2003 (Tas) ss 4(1)(b), 11(1)(b); Relationships Act 2008 (Vic) s 6. Relationships Register Act 2010 (NSW) s 9; Civil Partnerships Act 2011 (Qld) ss 7, 9(1)(a); Relationships Register Act 2016 (SA) s 9; Relationships Act 2003 (Tas) s 13(3)(a); Relationships Act 2008 (Vic) s 10(3)(a). Civil Unions Act 2008 (ACT) ss 9(2), 10. Civil Unions Act  2008 (ACT) s  7(e); Relationships Register Act  2010 (NSW) s  5(2); Civil Partnerships Act 2011 (Qld) s 5(c); Relationships Register Act 2016 (SA) s 5(2). Relationships Act 2003 (Tas) s 11. (1866) LR 1 P&D 130. (2013) 250 CLR 441; [2013] HCA 55. At 461. See 13.6, 13.7. Marriage Act 1961 (Cth) s 5(1).

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any residual role in defining legally recognisable marriages, it may potentially recognise polygamous unions. But until the case law clarifies that, the law concerning actually and potentially polygamous unions should still be considered. 13.15  In a potentially polygamous marriage, the husband (in most cases) has only one wife, but the marriage is entered in accordance with a law that recognises that he has the right to take another wife or wives. It is therefore actually monogamous. Indeed, under some laws a potentially polygamous marriage can turn into a legally monogamous marriage. So, the husband of a potentially polygamous union may be prohibited from marrying additional wives when the wife bears a child.74 Or, it is possible that the parties may unintentionally change the union from potentially polygamous to monogamous by acquiring domiciles in a place, such as Australia, which under its internal law does not allow polygamy.75 As the common law had held that the difference between a monogamous and a potentially polygamous marriage was legally significant, it is important to know when it was determined whether the union in question was one or the other. It was settled that the time for determining the nature of the union was the time when the proceedings that gave rise to the need to determine the question were commenced.76 The rule would apply whether a potentially polygamous marriage were transformed into a monogamous marriage, or the converse. If a potentially polygamous marriage became a monogamous marriage by the time proceedings were commenced, its validity would be recognised. The common law held that in the former state, the union was only voidable, and that the defect was cured by the change to a monogamous marriage. However, if an actually polygamous marriage became a monogamous marriage by the time proceedings were commenced, it would still not be recognised. The common law held that an actually polygamous marriage was invalid or void at the outset. This could not be altered by any subsequent event, except the separate solemnisation of a valid monogamous marriage. 13.16  The one union between a man and a woman might therefore, at one time, have been potentially polygamous and, at another, be monogamous. It might also at one and the same time be regarded by the internal law of the forum as a monogamous marriage, and by the internal law of a foreign place as potentially polygamous. In this latter case, it was necessary to know whether the nature of the marriage was to be classified by the law of the forum or the foreign place if the question whether it was to be recognised as a marriage in Australia was ultimately to be resolved. Unfortunately, this issue has not been settled. There is one line of authority that supported the laws of the places where the parties were domiciled as determining the nature of the marriage, a position entirely consistent with the role that the common law gives to domicile in questions of the essential validity of a marriage.77 This was not without its problems. In effect, a marriage solemnised in Australia would not be recognised if made between two Pakistanis because the law of the place of domicile would regard the marriage as potentially polygamous. However, there is a competing line of cases that suggested that the nature of the marriage should be determined by the law of the place 74. 75. 76. 77.

For example, Cheni v Cheni [1965] P 85. Ali v Ali [1968] P 564. Cheni v Cheni [1965] P 85 at 92; Parkasho v Singh [1968] P 233 at 254–5. Warrender v  Warrender (1835) 2 Cl & F 488 at 535; 6 ER 1239 at 1256; Ali v  Ali [1968] P 564; Hussain v Hussain [1983] Fam 26; see also 13.31–13.33.

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where the marriage was solemnised.78 And, in the third place it was suggested by Cairns J in Lee v Lau79 that the law of the forum should determine the nature of the marriage. 13.17  In Lee v  Lau, the marriage was celebrated in Hong Kong in accordance with a customary Chinese form. This allowed the husband to take tsipsis or concubines, but not another wife. The children of the tsipsis would be regarded as legitimate. Under the law of Hong Kong, this form of marriage was regarded as monogamous. In England, it was held that the union had to be classified in accordance with the law of England as potentially polygamous. It could not be considered a valid marriage, as the husband could take additional partners who possessed some legal status. It could not be said to be a union to the exclusion of others. 13.18  The method of classifying the marriage in Lee v  Lau required the nature and incidents of the union to be determined in accordance with the law of the place where the marriage was solemnised but, in that light, then to classify the marriage as monogamous or potentially polygamous in accordance with the law of the forum. This has merits, especially as, under the Marriage Act, the law of the place where the marriage was solemnised is now the presumed law of the cause for questions concerning capacity to marry.80 The final reference this approach requires to the law of the forum also avoids the problem — that could have occurred in Lee v Lau — of importing fine distinctions that foreign laws might make between monogamous and polygamous marriages. 13.19  Even if, at the time proceedings were commenced, the marriage was classified as potentially or actually polygamous, it might still be recognised as a marriage in Australia for some purposes. Surprisingly, at this point the law makes little distinction between the consequences of the marriage being potentially polygamous or actually polygamous. The authorities have shown that a potentially polygamous marriage will be recognised in proceedings for determining whether the children of the marriage are legitimate,81 whether the wife or a child is entitled to inherit the man’s property,82 or whether a contract was made in consideration of the marriage.83 Similarly, an actually polygamous marriage can be recognised in proceedings for determining whether the children of the first or subsequent marriage are legitimate.84 An actually polygamous marriage may also be recognised in deciding whether a second or subsequent wife has the right to inherit her husband’s property under rules of intestacy.85 In some cases also, a reference to a marriage or spouse in legislation might include a reference to a potentially or actually polygamous marriage

78. 79. 80. 81. 82. 83. 84. 85.

Khan v Khan [1963] VR 203; Re Bethell; Bethell v Hildyard (1888) 38 Ch D 220; Qureshi v Qureshi [1972] Fam 173; Hassan v Hassan [1978] 1 NZLR 385. [1967] P 14. See 13.48–13.58. Sinha Peerage Claim [1946] 1 All ER 348; Baindail v Baindail [1946] P 122 at 127–8. Bamgbose v  Daniel [1955] AC 107; Coleman v  Shang [1961] AC 481; Official Solicitor v  Yemoh [2011] WLR 1450. Shahnaz v Rizwan [1965] 1 QB 390. Haque v Haque (No 1) (1962) 108 CLR 230; Hashmi v Hashmi [1972] Fam 26. Re Sehota [1978] 3 All ER 385.

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or a wife of such. In this latter case, the classification of the union will be a matter of construction to be determined from the legislation as a whole.87 86

13.20  The most important area in which a potentially or actually polygamous marriage is given recognition in Australia is that of matrimonial causes, and this is where the revision of the definition of marriage in the Same-Sex Marriage Case88 might have some effect. Lord  Penzance established in Hyde v  Hyde89 that an English matrimonial court had no jurisdiction to determine proceedings relating to a potentially polygamous marriage, and the same rule applied in proceedings relating to an actually polygamous marriage.90 However, an exception was allowed in proceedings for annulment brought by the wife of a subsequent polygamous union. The first union of an actually polygamous marriage was recognised as constituting a valid marriage, permitting an annulment to be granted to the second or subsequent spouse on the ground of bigamy.91 There has also been more comprehensive statutory reform.92 It is now provided that, in a matrimonial cause, a polygamous union entered outside Australia is deemed to be a marriage.93 The provision does not expressly mention a potentially polygamous union, though it would be absurd not to recognise it as a marriage in a matrimonial cause when an actually polygamous union can be. It also only allows the recognition of a polygamous union when it is entered outside Australia. Those solemnised in Australia cannot be recognised. Law reform in England and Wales and in Scotland has been more substantial. There, the distinction between monogamous and potentially (but not actually) polygamous marriages has been obliterated.94 The common law had been edging towards this point, and it may be that the Same-Sex Marriage Case has also settled the law in Australia into the same position.

The common law choice of law rules 13.21  The common law choice of law rules relating to marriage continue to have a role when determining the validity of multi-state marriages, but with the implementation of the Hague Convention on Celebration and Recognition of the Validity of Marriages in 1986 this role has contracted over time. This convention led to some codification of the choice of law rules. Accordingly, in the process of identifying and applying the choice of law rules relating to a marriage, the Marriage Act should be consulted first, and the common law rules only applied to the extent that they are both preserved and permitted by the Act. It does so in two cases. First, the validity of a marriage celebrated in Australia before 7 April 1986 is to be determined in accordance with the common law rules of private international law.95 The Marriage Act prescribes some exceptions that, as mandatory rules, override the effect of the 86. 87. 88. 89. 90. 91. 92. 93. 94. 95.

Imam Din v National Assistance Board [1967] 2 QB 213. Cf Nabi v Heaton (Inspector of Taxes) [1981] 1 WLR 1052. (2013) 250 CLR 441; [2013] HCA 55. (1866) LR 1 P&D 130; see 13.6–13.7. See Khan v Khan [1963] VR 203; Risk v Risk [1951] P 50; Sowa v Sowa [1961] P 70. Baindail v Baindail [1946] P 122. For early reforms, see F M Auburn, ‘Potentially Polygamous Marriages’ (1971) 45 Australian Law Journal 293. Family Law Act 1975 (Cth) s 6. Private International Law (Miscellaneous Provisions) Act 1995 (UK) ss 5–7. Marriage Act 1961 (Cth) s 22.

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common law rules. Second, the validity of a marriage solemnised overseas at any time is initially to be determined by reference to the rules set out in Pt VA of the Marriage Act.97 However, if the marriage is not valid according to Pt VA, but it would be recognised as valid under the common law rules of private international law, the marriage will still be recognised as valid in Australia.98 The common law rules can therefore save the validity of a marriage solemnised overseas. Even here there are exceptions that, as mandatory rules, override the effect of the common law.99 Accordingly, although the common law remains the primary source of the choice of law rules for marriages solemnised in Australia before 7 April 1986, and a significant source of the choice of law rules for marriages solemnised outside Australia, in any one issue the effect of the common law may be overridden by the provisions of the Marriage Act. The rules that follow are therefore essential, but in no one case can it be assumed that they provide the choice of law rule that properly defines the law of the cause. 96

13.22  A basic distinction is made at common law between the formal and essential validity of a marriage. No such distinction was made in the earliest English decisions relating to the validity of a marriage, in which all questions were held to be determined in accordance with the law of the place where the marriage was solemnised.100 This distinction only crept into the law in the mid-19th century, and was confirmed when in Brook v Brook101 the House of Lords refused to apply the law of the place where the marriage was solemnised to a question involving the parties’ capacity to marry. Since then, the separate classifications have had different choice of law rules. As a consequence, when the common law is to apply to determine the validity of a multi-state marriage, the subject matter of the dispute must be classified as concerning either the formal or the essential validity of the marriage. Further distinctions may still have to be made, and there are some issues that do not fall into either classification.

The formal validity of marriage Questions of formal validity 13.23  Those issues which are classified as questions relating to the formal validity of a marriage include whether the ceremony is to be religious or civil, the need for and qualifications of a celebrant or witnesses, and requirements of notice and registration. In Apt v  Apt102 it was held that whether a marriage is validly solemnised when one of the parties only appears by proxy is a question of formal validity. The giving of consent by proxy did not relate to the reality of that party’s consent, so much as the form in which that consent was expressed. The formalities of marriage would therefore rarely seem to be See 13.44–13.45. Marriage Act 1961 (Cth) s 88C. Marriage Act 1961 (Cth) s 88E(1). See 13.55. Scrimshire v Scrimshire (1752) 2 Hag Con 395; 161 ER 782; Dalrymple v Dalrymple (1811) 2 Hag Con 54; 161 ER 665. 101. (1861) 9 HL Cas 193; 11 ER 703. 102. [1948] P 204.

96. 97. 98. 99. 100.

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13.24

much removed from the solemnisation of the union itself. Apt has been followed recently by the Irish High Court in Hamza v Minister for Justice, Equality and Law Reform,103 where a marriage in a Mosque in Sudan was recognised despite the wife’s appearance there only by a male proxy. The practice of Islamic marriages in Sudan was for a woman to be represented by male relatives, and so the Sudanese marriage was recognised in Ireland.104 The cases relating to proxies do not raise any question of where the place of solemnisation was, as it is taken to be the place where the proxy took part in the ceremony. A critical consideration in identifying the place of solemnisation appears to be the place where the ceremony was conducted, even if neither party was present there at the time.105 The actual place of solemnisation was, nevertheless, an issue in MRA v NRK,106 where the ceremony took place by telephone call between the woman (who was of Pakistani origin), in Scotland, and the man, in Pakistan. A certificate was issued in Pakistan and sent to the woman. She signed it, and took it to the Pakistani consulate in Glasgow, where it was stamped. It was argued that the ceremony took place, at least in part, in Scotland and, so the argument went, as the marriage did not comply with internal Scots law the marriage was formally invalid. However, in the Court of Session Lord Stewart rejected that argument. Even if the marriage had not taken place exclusively in Pakistan, it had taken place there and was valid under Pakistani law. Lord Stewart was not prepared to declare the marriage invalid. At common law, it also appears that any requirement of parental consent to a marriage is regarded as a question of formal validity, although this is difficult to rationalise with the usual emphasis on the acts of solemnisation. This classification is the result of poor use of precedent. In Simonin v Mallac107 it was held that a French law requiring the parties to obtain the consent of their parents to the marriage as ‘a respectful and formal act’ was a question of form. There is little doubt that this was correct, as the law of France still recognised the capacity of the parties to create a valid marriage if parental consent was not obtained. However, the English Court of Appeal arguably applied Simonin v Mallac indiscriminately in Ogden v Ogden108 where a different French law actually denied the man the capacity to marry unless his parents consented to the marriage. Here, there was no doubt that the law of France treated the question of parental consent as essential to the existence of the marriage. The Court of Appeal nevertheless concluded that it was a question of formal validity. Ogden was plainly distinguishable from Simonin v Mallac, but still stands as authority for the rule that all issues of parental consent to a marriage are questions of formal validity.109 13.24  In general, the law of the cause for any issue relating to the formal validity of a marriage is the law of the place where the marriage was solemnised.110 Therefore, if the marriage was made in accordance with the formal requirements prescribed in the place where it was solemnised it will be valid, so long as the marriage is also regarded as being essentially valid. On the other hand, if the marriage did not satisfy the formal requirements prescribed 103. 104. 105. 106. 107. 108. 109. 110.

[2010] IEHC 427. See also Conlon v Mohammed [1987] ILRM 5623. McCabe v McCabe [1994] 1 FLR 410. 2011 SLT 873. (1860) 2 Sw & Tr 67; 104 ER 917. [1908] P 46. Lodge v Lodge (1963) 107 Sol Jo 437. Berthiaume v Dastous [1930] AC 79 at 83.

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in the place where it was solemnised it will be invalid, even if the marriage is essentially valid. The time at which the marriage must comply with the formal requirements of the law of the place where it was solemnised is the time when the marriage was entered. The marriage will not be invalid if it met these requirements at the time it was entered, but the law of the place where it was solemnised subsequently changes so as to invalidate the marriage there. In contrast, a subsequent change in the law of the place where the marriage was solemnised will be recognised when the change validates a previously invalid marriage.111 This ensures that the choice of law rule works in favour of the validity of the marriage.

Common law marriages 13.25  At common law, there is only one minor exception to the general rule that questions of the formal validity of marriage are to be determined by the law of the place where the marriage was solemnised. This is the so-called ‘common law marriage’ or, more accurately, the ‘canon law marriage’. 13.26  The common law marriage is the form of marriage recognised in England before the introduction of Lord Hardwicke’s Act  1753 (UK), and which was inherited from the canon law. There are possibly two requirements for the recognition of a marriage at common law. The first undoubtedly originated in the canon law, and is unquestioned. This is a declaration de presenti: that is, a serious and genuine exchange of consent by the man and the woman to a present marriage. The second possible requirement is more debatable. At the Council of Trent in 1563, the Catholic Church introduced an additional requirement for a marriage to be solemnised by a priest, but as this happened after the English Reformation it was not received as canon law in England. However, in R v Millis112 the House of Lords found that an Anglo-Saxon law of the year 940 required the presence of a mass-priest at the solemnisation of a marriage. It therefore held that the common law also required the marriage to be solemnised by an episcopally-ordained priest: that is, a priest ordained by a bishop. From the perspective of English law, this means the marriage must be one solemnised by an Anglican, Catholic or Orthodox priest. The decision in Millis is really a romantic oddity, with little support among serious legal historians or canon lawyers. Still, there has been doubt as to whether the common law of Australia requires the presence of an episcopally-ordained priest for a valid common law marriage. This point should have been settled once and for all by the Privy Council’s decision in Catterall v Catterall,113 in which Dr Lushington held that Millis was limited to marriages in England and Ireland, and therefore that a marriage conducted by a Presbyterian minister (who is not episcopally-ordained) in New South Wales was valid.114 In Kuklycz v Kuklycz115 Norris J in the Supreme Court of Victoria nevertheless held that there was a need for an episcopally-ordained priest for a marriage solemnised in the Ukraine to be recognised. This decision was made in ignorance of Catterall, but there was substantial support in Australian decisions for the presence of an Starkowski (otherwise Urbanski) v Attorney-General [1954] AC 155. (1844) 10 Cl & Fin 534; 8 ER 844. (1847) 1 Rob Eccl 580; 163 ER 1142. Beamish v Beamish (1861) 9 HL Cas 274 at 348, 352; 11 ER 735 at 766; Wolfenden v Wolfenden [1946] P 61; Isaac Penhas v Tong Soo Eng [1953] AC 304. 115. [1972] VR 50. 111. 112. 113. 114.

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episcopally-ordained priest for a marriage to be recognised at common law. There is also Australian authority to the contrary, requiring only a declaration per verba de praesenti for a valid common law marriage.117 This is submitted to be the better approach — especially in light of the discriminatory consequences and questionable origins of Millis. The Family Court of Western Australia, for example, accepted that a Baha’i marriage celebrated in Iran (where only Christian, Jewish and Muslim marriages were recognised) amounted to a valid common law marriage.118 Equally, a ceremony in a South-East Asian country in which the parties shared a meal with their families, the wife’s family gave a fruit platter to the husband’s parents and both sets of parents accepted them as husband and wife was held sufficient to create a common law marriage.119 If it must have any authority, Millis is best limited to marriages solemnised in England and Wales, and in Ireland. The controlling authority of Catterall also suggests that, in Australian courts, there should otherwise be no need for an episcopally-ordained priest to be present for a valid common law marriage to arise. 116

13.27  It is difficult to determine whether the elements of a common law marriage have been affected by the inclusion of same-sex unions within the definition of marriage in the Same-Sex Marriage Case.120 A common law marriage may only be recognised when the law normally governing the formal validity of a marriage is, for specified reasons,121 rendered inapplicable. The essence of a common law marriage has been that it is heterosexual. The displaced common law definition of marriage in Hyde v Hyde122 and the notion of ‘a common law marriage’ recognised in R v Millis123 both originate in the canon law which, of course, has not recognised same-sex unions. However, the formal requirements of a common law marriage have also been directed by its traditional essential quality as a heterosexual union. It seems likely that the only formal requirement for a common law marriage in Australia is a declaration per verba de praesenti. The case law, nevertheless, reflecting the canonical origins of the institution, describes this as ‘an agreement that the parties take each other as husband and wife’.124 Still, the canon law, in this connection, has been incorporated into the common law, and therefore, if the Same-Sex Marriage Case brought changes to the common law, the possibility that the sex or gender of the parties has been removed from the essential requirements of a common law marriage must be seriously considered. That being so, this would also affect the nature of the formal requirement of the declaration de praesenti. It may be, as a result of the Same-Sex Marriage Case, that a declaration that the parties live as a married couple is sufficient for the requirements of a common law marriage to be met. 13.28  Lord Hardwicke’s Act 1753 (UK) displaced the common law marriage, but the Act only applied within the territorial limits of England and Wales. Therefore, in Ireland and in the colonies that received the common law of England, a marriage might still be recognised 116. 117. 118. 119. 120. 121. 122. 123. 124.

Hodgson v Stawell (1854) 1 VLT 51; R v Byrne (1867) 6 SCR (NSW) 302. Persian v Persian [1970] 2 NSWR 538 at 541–3; Quick v Quick [1953] VLR 224. Hooshmand v Ghasmezadegan (2000) FLC 93-044. Lin & Nicoll [2016] FamCA 401. (2013) 250 CLR 441; [2013] HCA 55. See 13.28–13.30. (1866) LR 1 P&D 130. (1844) 10 Cl & Fin 534; 8 ER 844. Kuklycz v Kuklycz [1972] VR 50 at 52.

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when it merely complied with the requirements for a common law marriage. This was the case in the Australian colonies.125 However, the possibility of merely having to comply with the requirements of a common law marriage in Australia has long been removed by legislation. It will only be available when a marriage was solemnised outside Australia, and then only in two — or maybe three — general circumstances. In these, the marriage will be recognised as valid when it did not satisfy the law of the place where it was solemnised, but when it did meet the requirements of a common law marriage. The first of these circumstances is that it is practically impossible to comply with the law of the place where the marriage was solemnised. There were clear examples of such practical impossibility in Europe after the Second World War. In Savenis v Savenis and Szmeck126 the couple was wed in Bavaria in 1945 by a Catholic priest. The marriage was not solemnised by a civil registrar as well — as required by German law — because in post-War Bavaria there were no registrars available to officiate. It did, however, comply with the requirements for a common law marriage, and was therefore held to be valid.127 In Marriage of X,128 the Family Court did not recognise a marriage which took place in Vietnam in 1978, which had not been registered in accordance with the law of Vietnam. The parties’ fear of the Vietnamese administration was accounted irrelevant. It was possible to register the marriage, and this had not happened. In contrast, in Lin & Nicoll129 each of the parties was deprived of citizenship in a Communist-controlled country ‘in South East Asia’ as a result of having been imprisoned for political offences. The denial of citizenship also prohibited them from engaging in any legal marriage ceremony, and Dawe J regarded that as bringing the couple within the impossibility exception that allowed the recognition of their union as a common law marriage.130 13.29  The second set of circumstances in which it might be sufficient to comply with the requirements of a common law marriage is where a party is serving with armed forces in occupation of the place where the marriage was solemnised.131 Here the cases have also involved marriages made in Europe after the Second World War, and in most, the reason offered for the rule is that the parties did not voluntarily submit to the internal law of the occupied place. This reasoning is questionable, as the parties’ consent to submit to the law of a particular place has never been the rationale for identifying the law of the cause in questions of formal validity. It is probably just unreasonable to expect occupying troops to be subjected to the law of the place in which they are in belligerent occupation. This category probably also includes marriages made in situations similar to those involving members of occupying armed forces, such as marriages involving escaped prisoners of war.132 In these cases, so long as there is a declaration per verba de praesenti (and maybe the presence of an episcopally-ordained priest) the marriage should be recognised as valid at common law. Catterall v Catterall (1847) 1 Rob Eccl 580; 163 ER 1142. [1950] SASR 309. Kuklycz v Kuklycz [1972] VR 50. (1983) 65 FLR 132. [2016] FamCA 401. At [58]. Taczanowska v Taczanowski [1957] P 301; Merker v Merker [1963] P 283; cf Lazarewicz v Lazarewicz [1962] P 171. 132. Merker v  Merker [1963] P 283 at 295; Preston v  Preston [1963] P 411; Grzybowicz v  Grzybowicz [1963] SASR 62; Kuklycz v Kuklycz [1972] VR 50; Dukov v Dukov [1969] QWN 9. 125. 126. 127. 128. 129. 130. 131.

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13.31

13.30  In a number of cases, the courts have conceded that a serious conscientious objection to complying with the law of the place where the marriage was solemnised is equivalent to practical impossibility of compliance. Therefore, if the law of the place where the marriage was solemnised required the parties to use a particular religious ceremony, it may be sufficient for parties who did not adhere to that religion to satisfy the requirements of a common law marriage for the marriage to be recognised as formally valid in Australia.133 In Nygh and Casey,134 the parties participated in a Catholic ceremony of marriage in Thailand, but did not register the marriage in accordance with Thai law. The wife objected to registration because, under the Thai law of the time, she would have been obliged to have changed her surname to her husband’s. She swore that she had ‘a strong conscientious objection’ to a discriminatory law. Faulks DCJ held that, for the common law marriage exception to apply in a case like this, it was ‘not so much whether the substance of the objection is a grave moral matter but rather whether the conviction is sincerely and conscientiously held’.135 In this case, the wife’s objection, ‘while falling short perhaps of the high morality of the sanctity of human life nevertheless deals with a major matter of conscience.’136 It related ‘to the question of discrimination against woman and the rights of a woman to be regarded as an individual, notwithstanding their marriage to a man.’137 As a result, the exception was made out. The Catholic marriage was therefore recognised as valid in Australia — although not in Thailand.138 Similarly, the courts have recognised unions made between Poles in a displaced persons camp in post-War Germany on the ground that parties who had suffered under Nazism and who so fervently hated Germany could not be expected to comply with the law of Germany.139 It was sufficient there to comply with the requirements of a common law marriage.

The essential validity of marriage Questions of essential validity 13.31  The issues which are classified as questions of essential validity are all those which relate to a person’s legal capacity to marry. Included here are questions of a party’s pre-existing marital status, marriageable age and prohibitions based on consanguinity (relationship by common descent) or affinity (relationship through marriage). Any requirement relating to the sex or gender of the parties also concerns their capacity to marry, and is regarded as a question of the essential validity of a marriage.140 Two issues, however, remain in doubt. 133. Ruding v  Smith (1821) 2 Hag Con 371; 161 ER 774; Milder v  Milder [1959] VR 95 at 98; Hooshmand v Ghasmezadegan (2000) FLC 93-044. 134. [2010] FamCA 145. 135. At [83]. 136. At [84]. 137. At [85]. 138. However, as Harder notes, Faulks DCJ did not then refer to the requirements of a common law marriage and, incorrectly, applied the Australian law of marriage. For further criticisms, see S Harder, ‘Recent Judicial Aberrations in Australian Private International Law’ (2012) 19 Australian International Law Journal 161 at 174–9. 139. Kochanski v Kochanska [1958] P 147; Jaroszonek v Jaroszonek [1962] SASR 157. 140. Wilkinson v Kitzinger [2006] EWHC 2022 (Fam) at [15], [129].

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One is the issue of the reality of consent — whether the marriage is void on the ground of duress, fraud, mistake or mental incapacity. In general, the reality of consent has been classified as a question of essential validity.141 The Supreme Court of New South Wales, however, treated it differently in Di Mento v Visalli.142 There, the law of the forum was held to govern an issue of consent, an approach that would not follow if the issue had been classified as a question of essential validity. However, it may be that in Di Mento the law of the forum did not differ from the usual law governing questions of essential validity. If so, it is not strong authority against the proposition that the reality of consent is a question of essential validity, and it is at least legitimate to treat it as such. The other issue in doubt is that of physical impediments which, in some places outside Australia, might render a marriage void or voidable. For example, a marriage might be void where the wife is already pregnant to another man. Or, the marriage might be voidable if not consummated. Here, the case law is in hopeless disarray and provides no real guidance on the issue. There are some decisions consistent with a classification of the issue as one of essential validity.143 However, other decisions do not follow that classification and, given the state of confusion in the area, this issue is discussed separately later in the chapter.144

Dual domicile rule 13.32  The House of Lords first stated a different choice of law rule for questions relating to the essential validity of a marriage in Brook v Brook.145 There, an English widower and his sister-in-law married while travelling in Holstein (which the House of Lords thought was in Denmark). The parties had capacity to marry under the law of Denmark, but not under the law of England, where the marriage offended rules of affinity. The House of Lords applied the latter, ruling that the marriage was invalid. Lord Campbell LC said:146 … the essentials of the contract depend upon the lex domicilii, the law of the country in which the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated.

In the specific context of Brook, Lord Campbell’s comment directed a certain outcome, as both parties were domiciled in England and planned to live there. As a statement of principle for other cases, however, it is ambiguous and suggests two possible choice of law rules. The law of the cause for a question relating to the essential validity of a marriage could be either the laws of the places where the parties were respectively domiciled at the time of the marriage (‘the dual domicile rule’) or the law of the place where the parties intend to establish the matrimonial home (‘the matrimonial home rule’). Each rule has had its scholarly supporters. Fortunately, in the few cases in which the issue has been considered in Australia, the Family Court has agreed that the dual domicile rule is the law.147 There 141. 142. 143. 144. 145. 146. 147.

For example, Szechter v Szechter [1971] P 286; In the Marriage of Suria (1977) 3 Fam LR 11,541. [1973] 2 NSWLR 199. Ponticelli v Ponticelli [1958] P 204; De Reneville v De Reneville [1948] P 100. See 13.39. (1861) 9 HL Cas 193; 11 ER 705. At HL Cas 207; ER 709. In the Marriage of Barriga (No 2) (1981) 7 Fam LR 909; Marriage of Teves and Campomayor [1995] FLC 92-578 at 81,735–6; see also Ungar v Ungar [1967] 2 NSWR 618; Stankus v Stankus (1974) 9 SASR 20 at 24.

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13.34

was early support in Victoria for the matrimonial home rule in Molesworth J’s decision in Re Will of Swan.148 However, it is best to regard this position as extinct after the Family Court’s reconsideration of the law in In the Marriage of Barriga (No 2).149 This also parallels the support for the dual domicile rule in Canada150 and in New Zealand.151 Indeed, it seems much more sensible to decide questions of personal capacity by reference to the parties’ personal laws of domicile. The place where they intend to live has no apparent connection with their capacity to marry.152 13.33  That there is sense in holding to the dual domicile rule is reinforced by the confusion that has developed in the law in England. There are decisions which clearly favour the dual domicile rule,153 and others the matrimonial home rule.154 That alone would be enough to cause uncertainty, but the problem has been compounded by two other decisions. The first is Radwan v  Radwan (No 2),155 in which Cumming-Bruce J held that a question of capacity to enter a polygamous marriage was to be determined by the law of the intended matrimonial home. However, his Lordship made a proviso that this indicated nothing about the law governing questions of capacity to enter a monogamous marriage, marriageable age or affinity.156 This signifies the possibility that different aspects of essential validity could attract different choice of law rules, requiring further classification of the subject matter of the dispute beyond the distinction between formal and essential validity. The trend was continued in the second decision, Lawrence v Lawrence.157

Intended matrimonial home rule, and variations 13.34  In Lawrence v Lawrence the wife and her first husband were domiciled in Brazil, but obtained a divorce in Nevada in 1970. The next day, still in Nevada, she married the petitioner. He was domiciled in England, where they both planned to live and actually did reside for the next two years. In 1972, they separated and the wife returned to Brazil. The petitioner sought a declaration in England that the marriage was valid, which the wife contested. In England, the Nevada divorce was recognised under legislation. In Brazil, it would only be recognised as a decree of separation and the wife would not have the capacity to enter the marriage in Nevada. The English courts held that the marriage was valid. At first instance in Lawrence, Lincoln J held that the question of capacity to marry was determined by the matrimonial home rule. However, he was also influenced by the fact that, if possible, he should find the marriage to be valid. Therefore, the law of England (which did recognise the Nevada divorce) was applied.158 148. 149. 150. 151. 152. 153. 154. 155. 156. 157. 158.

(1871) 2 VR (IE&M) 47 at 50. (1981) 7 Fam LR 909. Schwebel v Ungar Schwebel v Ungar (1963) 42 DLR (2d) 622 (aff ’d (1964) 48 DLR (2d) 644). Hassan v Hassan [1978] 1 NZLR 385. Cf Cooper v Cooper’s Trustees (1888) 15 R (HL) 21 at 31. For example, Padolecchia v Padolecchia [1968] P 314; R v Brentwood Superintendent Registrar of Marriages; ex parte Arias [1968] 2 QB 956; Paine, Re [1940] Ch 46. For example, De Reneville v De Reneville [1948] P 100 at 114 and 121–2. [1973] Fam 35. Radwan v Radwan (No 2) [1973] Fam 35 at 54. [1985] Fam 106. At 114–15.

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13.35  In the Court of Appeal in Lawrence, Lincoln J’s decision was affirmed, but not on the basis of the matrimonial home rule. Sir David Cairns thought that either the dual domicile rule or the matrimonial home rule could be applied, whichever supported the validity of the marriage.159 Purchas LJ held that the dual domicile rule applied, but that the legislation under which the Nevada divorce was recognised deemed the wife, for the purposes of English law, to be domiciled in Nevada prior to the marriage there.160 She therefore had (under English law) the capacity to marry in Nevada. Sir David Cairns and Ackner LJ also upheld the marriage on the ground that an English court was required by legislation to recognise the Nevada divorce and, so, the wife’s capacity to marry. In Lawrence, the approaches taken by Lincoln J and Sir David Cairns reveal a willingness to apply either rule, depending on which ultimately favours the validity of the marriage. This really creates a third possible choice of law rule, more closely directed towards the validity of the marriage but, at the same time, negating the need even to use the choice of law method to decide questions of marriage validity. There is also a suggestion in Lincoln J’s judgment that the matrimonial home rule is appropriate in cases where capacity to marry depends on the recognition of a foreign divorce, once more demanding the classification of the subject matter in dispute well beyond the distinction between formal and essential validity.161 This might produce flexibility, but is equally more complex and uncertain. There is little in Radwan (No 2) or Lawrence that should tempt an Australian court to depart from the current insistence on the dual domicile rule. 13.36  It can be assumed that, in most cases, questions relating to the essential validity of a marriage are determined by the laws of the places where the parties were respectively domiciled at the time of the marriage. These include the choice of law rules of the places of domicile, opening the possibility of renvoi. Where the husband is domiciled in Ruritania, but Ruritania’s choice of law rule requires a question of essential validity to be determined by the law of Hentzau, a court in Australia should determine the question in accordance with the law of Hentzau.162

The rule in Sottomayor v De Barros 13.37  There is an exception to the application of the dual domicile rule in questions relating to the essential validity of marriage — the rule in Sottomayor v De Barros (No 2).163 13.38  The husband and wife in Sottomayor v De Barros (No 2) were first cousins, and were married in England. He was domiciled in England and she in Portugal. There was no impediment to the marriage of first cousins in England, but under the law of Portugal it was prohibited without a dispensation from the Pope. This had not been obtained, but in England the marriage was still upheld. Sir James Hannen P applied the law of England as the law of the place where the marriage was solemnised, as ‘injustice … might be caused to our own subjects if a marriage were declared invalid on the ground that it was forbidden 159. 160. 161. 162. 163.

At 134. At 132–3. At 115. R v Brentwood Superintendent Registrar of Marriages; ex parte Arias [1968] 2 QB 956. (1879) 5 PD 94.

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by the law of the domicil of one of the parties’. This cannot be reconciled with the dual domicile rule, and so must be regarded as a genuine exception. In Miller v  Teale165 the High Court reluctantly accepted that the rule in Sottomayor v De Barros (No 2) was law in Australia, but only applied in cases where an incapacity can be removed by a special consent or dispensation. In such a case, the rule means that a marriage will be valid if: (1) one party is domiciled in and has capacity to marry in Australia; (2) the other party is domiciled in a foreign place and (solely because the required consent or dispensation has not been obtained) lacks the capacity to marry under the law of that foreign place; and (3) had the other party been domiciled in Australia, that party would have had capacity to marry. The rule is parochial, but given the conditions in which it applies, will only be used on a rare occasion.166 It is an abysmal example of a rule that was concocted to deal with one case, and which has unfortunately been recognised as a precedent that makes law. 164

Other issues Impotence, pregnancy and wilful refusal 13.39  The problem of classifying physical impediments that, in some places, make a marriage void or voidable has been mentioned already.167 However, the issue can be clarified a little when two points are remembered. First, there are decisions which support the application of the law of the place where the marriage was solemnised.168 However, under more firmly established principles, that particular choice of law rule would follow from a classification of the question as one of formal validity.169 As the significance of a physical impediment can hardly be regarded as one of form, or surrounding the requirements for solemnisation of the union, this classification and choice of law rule can be safely disregarded. Second, there are reasons to suggest that some physical impediments could be classified differently to others. Those that pre-exist the marriage — a husband’s impotence or a wife’s pregnancy to another man — are more easily classified as questions of essential validity than those that follow, such as a failure to consummate the marriage (‘wilful refusal’). The latter relates more directly to what the law regards as a person’s marital responsibilities than it does to capacity. It is therefore arguable that the legal effect of a pre-existing impediment could be treated as a question of essential validity, and determined by reference to the law of the place where the person who is carrying the impediment was domiciled at the time of the marriage.170 That limits the real problem to the classification of questions of wilful refusal. It has been held in some cases that such questions are to be determined by the law of the forum.171 This has some attraction, as in most places where wilful refusal is regarded as having some effect on the validity of a marriage it renders the marriage voidable — not void. As a result, it bears some similarity to grounds of dissolution by divorce, and in choice 164. 165. 166. 167. 168. 169. 170. 171.

At 104. (1954) 92 CLR 406 at 414. Cf Vervaeke v Smith [1977] Fam 77; Lendrum v Chakravarti 1929 SC 96 at 102–3. See 13.29. See, for example, Robert v Robert [1947] P 164; Addison v Addison [1955] NI 1. See 13.23–13.24. Cf Sangha v Mander (1985) 47 RFL (2d) 212. Easterbrook v Easterbrook [1944] P 10; Hutter v Hutter [1944] P 95.

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of law questions these are governed by the law of the forum.172 In other cases, the question has been held to be governed by the law of the place where the petitioner (not the person refusing to consummate) is domiciled.173 The issue is consequently unresolved. Bishop has suggested that the question should be resolved in accordance with the law that gives relief to the party who is aggrieved: that is, the party who is not impotent, or not refusing to consummate.174 This rule would be a poor fit within the choice of law regimes for marriage. Further, if the aim is to give some relief to the aggrieved party, then this would be better solved by an overriding mandatory rule than by developing a narrowly applicable choice of law rule. However, the question may not have to be resolved by choice of law rules under the present law of matrimonial causes. In Australia, a marriage can only be declared invalid if it is void.175 Usually, wilful refusal in other legal systems merely renders a marriage voidable and, while that is the case, a court in Australia must recognise the marriage as valid. If a foreign court annuls the marriage on the ground that one party refused to consummate it, the decree of annulment may be subsequently recognised in Australia under the rules for the recognition of foreign decrees.176 In neither case does a choice of law question arise. It is only if, in the foreign place, wilful refusal retrospectively renders a marriage void ab initio that a court in Australia could consider whether the marriage is invalid, and then have to decide between the law of the forum and the law of the petitioner’s domicile. Again, in that case, the latter seems more consistent with basic principle.

Restraints on remarriage 13.40  It is common for a decree of dissolution to be issued in two stages: a decree nisi and a decree absolute. The dissolution has no effect until the decree absolute is made, and so between the times of the decrees nisi and absolute a party is taken not to have capacity to remarry.177 In some places, temporary limitations are placed on the parties’ right to remarry even after the decree absolute is made. It seems from the High Court’s decision in Miller v Teale178 that this issue is generally classified as subordinate to the recognition of the decree. If the law of the place where the decree was granted imposes the restraint, the restraint will be recognised in Australia so long as the decree is recognised in Australia.179 At the time Miller v Teale was decided, a foreign decree could only be recognised in Australia if made or recognised in the place where the parties to the decree were domiciled at the time of the decree. So, according to Miller v Teale, the restraint would be recognised if imposed or recognised in the place where the parties were domiciled at the time of the decree. However, foreign decrees of dissolution can now also be recognised if made in places where one of the parties is resident or a national, or with which one of the parties has a real and substantial connection. Decrees can also be recognised if the foreign court exercised a

172. 173. 174. 175. 176. 177. 178. 179.

See 14.13. Robert v Robert [1947] P 164; Ponticelli v Ponticelli [1958] P 204. W D Bishop, ‘Choice of Law for Impotence or Wilful Refusal’ (1978) 41 Modern Law Review 512. Family Law Act 1975 (Cth) s 51. See 14.16–14.50. Warter v Warter (1890) 15 PD 152; cf Buckle v Buckle [1956] P 181. (1954) 92 CLR 406. At 415, 421.

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jurisdiction which an Australian court can exercise. It has still to be determined by an Australian court whether a restraint attached to a decree recognised in Australia on one of these grounds would also be recognised. In Miller v Teale, the High Court limited this to cases where the limitation was imposed on both parties to the decree merely to prevent remarriage before the time period for appealing against the decree absolute had expired.181 In any other case, a limitation on remarriage operating after the decree absolute may not be recognised. Specifically, a restraint on remarriage will not be recognised in Australia if it only applies to one of the parties to the divorce,182 or if in some other sense it is imposed as a penalty on the parties to the divorce.183 180

Marriage: The present choice of law rules 13.41  The common law provides the background to the choice of law rules as they currently apply in Australia. It still provides a source for the choice of law rules that continue in operation for determining the validity of marriages solemnised in Australia before 7 April 1986, and of marriages solemnised outside Australia. However, the Marriage Act is the primary source of the choice of law rules relating to the validity of a marriage and the common law rules only apply to the extent that they are preserved and permitted by the Act. It has also been seen that the Marriage Act, as amended in 1985, implements the Hague Convention on Celebration and Recognition of the Validity of Marriages. This introduced differences to the rules for three categories of marriage: • marriages solemnised in Australia before 7 April 1986; • marriages solemnised in Australia from 7 April 1986; and • marriages solemnised outside Australia. Each category is later considered in turn.

Basic concepts 13.42  There are a number of concepts that, under the law of Australia, relate to a person’s capacity to marry and that must be explained, as they affect the operation of the present choice of law rules. First, the marriageable age for either a man or woman in Australia is 18 years. It is possible for a person aged between 16 and 18 to gain the capacity to marry if parental and judicial consents are obtained.184 Second, a person is in a prohibited relationship and not, for that reason, entitled to marry another when one is descended from the other, or one is a brother or sister (whether of the whole or half-blood) of the other.185 This is so even when the relationship is created by legal adoption.186 However, there are no prohibited degrees of affinity. Third, under the law of Australia, there must be reality of consent. This means that a party’s consent to the marriage was not given under duress 180. 181. 182. 183. 184. 185. 186.

See 14.33–14.38. At 415. Marriage of Mustafa (1981) 7 Fam LR 711; Lundgren v O’Brien (No 2) [1921] VLR 361. Scott v Attorney-General (1886) 11 PD 128. Marriage Act 1961 (Cth) ss 10(1)(b), 11–21. Marriage Act 1961 (Cth) ss 23(2), 23B(2). Marriage Act 1961 (Cth) ss 23(3), 23B(3).

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or fraud, or on the basis of a mistake as to the identity of the other party or as to the effect of the wedding ceremony, or without the required mental capacity.187 The requirement has evident implications for ‘arranged marriages’. In Kreet & Sampir,188 the woman was born in Australia to Indian parents who retained a strong connection with Indian culture and who were opposed to much of Australian culture. The parents were unhappy about the woman’s relationship with a man — U — in Melbourne, partly because he was of the wrong caste. The father had threatened to kidnap and rape U’s mother and sisters, and assaulted the woman. She left her parents to live with U, but they persuaded her to return home and then took her on a trip to India. While in India, she was told again that the father would kidnap and rape U’s mother and sisters, and that she would not be permitted to leave India unless she married S. She begged not to have to go through with the wedding with S, but ended up doing so in a ceremony where she was not required to speak. The woman’s parents returned to Australia. She stayed with S, but refused all of S’s attempts at physical intimacy. Eventually, she refused to provide sponsorship for S to be granted an Australian visa. The woman later applied to the Family Court for an annulment of the marriage. Although, for all other purposes, the Indian marriage would have been recognised as a valid marriage in Australia, the duress applied by the parents was sufficient for the judge to hold that, on the woman’s part, there was no real consent to a marriage. According to Cronin J:189 If a cultural practice relating to a marriage gives rise to the overbearing of a mind and will so that it is not a true consent, the cultural practice must give way. Arranged marriages such as would appear to have been the parents’ intent, must not carry with them lack of consent.

At the time of the ceremony, the woman was physically and mentally overborne by her parents’ duress, and her consent to a marriage to S could not have been real. The annulment was granted.

Valid marriages, void marriages and non-marriages 13.43  The Marriage Act only provides for the recognition of ‘valid’ marriages, and the Family Law Act only allows a declaration of validity for a valid marriage and an annulment for a ‘void’ marriage.190 However, it is likely that there is a third category — a ‘non-marriage’. For example, say a man marries one woman in Australia in accordance with the provisions of the Marriage Act. However, they have religious beliefs that allow polygamy, and he ‘marries’ a second woman of the same religious beliefs in Australia in accordance with the rites of the religion. As a result, from the religion’s perspective there is a polygamous married family and, as is lawful, they live as such in Australia. There was, nevertheless, in carrying out this religious rite, no attempt to contract a valid civil marriage in accordance with the Marriage Act; there is no claim that the second union amounts to a marriage for the purposes of Australian law; and it is not bigamous in the legal sense. The same would be the case for the ‘marriage’ of a child under a religious law that is not recognised in Australia. Or, to give another example, a couple privately pledge themselves on a moonlit beach to ‘eternal troth’.191 187. 188. 189. 190. 191.

Marriage Act 1961 (Cth) ss 23(1)(d), 23B(1)(d). (2011) 44 Fam LR 405; [2011] FamCA 22. At [41]. Family Law Act 1975 (Cth) s 51. Lengyel v Rasad (No 2) [1990] FLC 92-154 at 78,075.

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Even if, in substance, these rituals give rise to relationships as committed as many marriages made under the Marriage Act or a recognised adult relationship under a state or territory law,192 it is likely that they should be classified as ‘non-marriages’ and not ‘void’ marriages. A ‘non-marriage’ is a commitment that does not, at the time it is made, come within the broad scope of legal requirements for marriage, where a ‘void’ marriage does purport to come within the broad scope of these requirements but fails to fall within all of those requirements. The distinction is an important one, as a party to a void marriage has rights and obligations under the Family Law Act that the parties to a non-marriage do not.193 Further, it is the intent of the Family Law Act that the jurisdiction it confers should only be available for some kinds of commitments. In the English case of Gandhi v Patel,194 Park J held that a Hindu marriage between a Hindu woman and an already married Hindu man was a ‘non-marriage’. It had not purported to comply with the relevant British marriage legislation, and so did not qualify as a ‘void’ marriage that would have entitled the woman to make claims against the man’s estate.195 As a result, if the union is invalid for any other reason than the reasons for invalidity contained in the Marriage Act, the union will be a non-marriage and not a void marriage.

Marriages solemnised in Australia before 7 April 1986 13.44  The validity of a marriage solemnised in Australia (including Norfolk Island, Christmas Island and the Cocos (Keeling) Islands) before 7 April 1986 is — with some exceptions — to be determined in accordance with the common law rules of private international law. For these marriages, an initial distinction must be made between questions of formal and essential validity. Therefore, if the question is one of formal validity, the law of Australia, or if the marriage was solemnised before the commencement of the Marriage Act, the law of the relevant state or territory will apply as it is the law of the place where the marriage was solemnised. Section 23(1)(c) of the Marriage Act precludes recognition of a marriage solemnised in Australia in accordance with the requirements of a common law marriage, but that did not satisfy the formal requirements specified in s 48 of the Marriage Act. In any case, the conditions for the application of the exception for common law marriages would not seem to have been satisfied in Australia since the enactment of colonial statutes regulating marriage. If the question is one of essential validity, it will be determined by reference to the laws of the places where the parties were respectively domiciled at the time of the marriage or, perhaps, the rule in Sottomayor v De Barros (No 2).196 However, there are three exceptions to the application of the law of the cause specified by the common law. 13.45  As a question of essential validity, whether a person was of age to marry would normally be determined by the law of the place where that person was domiciled at the time of the marriage. However, even where that person had reached marriageable age under the law of the place of domicile, the marriage will not be recognised unless that person was also of marriageable age under the law of Australia.197 192. 193. 194. 195. 196. 197.

See 13.13. A Dickey, ‘Void Marriages and Non-marriages’ (2002) 76 Australian Law Journal 484 at 485. [2002] 1 FLR 603. At [5], [31]–[48]; see also Gereis v Yagoub [1997] 1 FLR 854 at 857. See 13.37–13.38. Marriage Act 1961 (Cth) s 10(1)(b); see also 13.42.

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13.46  A second exception may apply when a person claims to have capacity to remarry on the ground that an earlier marriage has been dissolved or annulled. This is generally to be determined in accordance with the law of the place where that person was domiciled at the time of the subsequent marriage. Therefore, on the one hand, if the law of the place of domicile — Ruritania — recognises the divorce or annulment of the earlier marriage, that person will be taken to have had capacity to remarry. On the other hand, if the law of Ruritania does not recognise the divorce or annulment, that person would not generally be regarded as having capacity to marry again. The exception applies in this latter case. The divorce or annulment might be recognised in Australia under the rules that apply for the recognition of foreign decrees.198 If so, the person is regarded in Australia as having capacity to remarry in accordance with the law of Australia even if the law of Ruritania does not recognise that capacity.199 In this case, capacity is determined by the law of Australia and not the law of the place of domicile. 13.47  There is special provision in the Marriage Act for the recognition of a marriage solemnised in Australia by a foreign diplomatic or consular officer in accordance with the law and custom of the foreign country.200 However, there are also conditions imposed by the law of Australia that such a marriage must satisfy before it qualifies for recognition. These are: (1) at least one party must be a national of the foreign country; (2) neither party can be an Australian citizen; (3) the marriage cannot be bigamous; (4) both parties must be of marriageable age; and (5) the parties cannot be in a prohibited relationship.201

Marriages solemnised in Australia from 7 April 1986 13.48  The validity of a marriage solemnised in Australia (again, including Norfolk Island, Christmas Island and the Cocos (Keeling) Islands) from 7 April 1986 is to be determined in accordance with the law of Australia. In this case, this means Pt III, Div 2 of the Marriage Act 1961 (Cth).202 The common law is expressly excluded,203 meaning that there is no need to classify the issues in dispute as questions of formal or essential validity or otherwise. Indeed, Pt III, Div 2 only allows a marriage to be declared invalid if: (1) at the time of the marriage, one party is already lawfully married to someone else; (2) the parties are within a prohibited relationship; (3) the marriage does not comply with the Marriage Act’s requirements as to form; (4) there was no reality of consent; or (5) one party was not of marriageable age.204 No other reason can justify holding a marriage to be invalid. This implements the Hague Marriage Convention, and restores the ancient rule that all questions of marriage validity be determined by the law of the place where the marriage was solemnised. 13.49  The only exception to this rule is for marriages solemnised in Australia before a  foreign diplomatic or consular official in accordance with the law and custom of the foreign country.205 198. 199. 200. 201. 202. 203. 204. 205.

See 14.16–14.50. Family Law Act 1975 (Cth) s 104(9). Marriage Act 1961 (Cth) s 56(1). Marriage Act 1961 (Cth) s 55; see also 13.41. Marriage Act 1961 (Cth) s 23A(1)(a). Marriage Act 1961 (Cth) s 23A(1). Marriage Act 1961 (Cth) s 23B(1); see also 13.40. See 13.47.

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13.52

Marriages solemnised outside Australia 13.50  A natural consequence of the Marriage Act’s principle that, in general, the validity of a marriage solemnised in Australia is to be determined in accordance with the law of Australia, is that the validity of a marriage solemnised in a place outside Australia is to be determined in accordance with the law of that place. This was implemented in Pt VA of the Marriage Act, which applies to any marriage solemnised in a place outside Australia — and at any time.206 Part VA therefore has both prospective and retrospective application. However, it also preserves other grounds on which a marriage might be recognised as valid. As a consequence, a marriage solemnised outside Australia will be recognised as valid in Australia if it is recognised as valid under either: • the law of the place where the marriage was solemnised;207 or • the common law rules of private international law.208 There are exceptions to both grounds of validity. Further, a marriage solemnised outside Australia will be recognised as valid in Australia if it is recognised under the Special Marriages Act 1954 (India), the Marriage Act 1955 (NZ) or the Foreign Marriages Act 1892 (UK). Each of these grounds will now be considered. 13.51  Since 9 December 2017, a same-sex union recognised as a valid marriage under the law of the place where it was solemnised will be recognised as a valid marriage in Australia. The Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) repealed the provision in Pt VA that had prohibited the recognition of same-sex unions solemnised in a foreign place.209 However, the former prohibition on the contracting of same-sex marriages may have some lingering effect in relation to unions solemnised overseas when, before 9 December 2017, an Australian was one of the parties to the union.210

Statutory grounds of recognition 13.52  Part VA provides that the validity of a marriage solemnised outside Australia is initially to be determined in accordance with the law of the place where the marriage was solemnised — say, Ruritania — and in some respects the law of Australia as well. The marriage will be recognised as valid in Australia when: • the marriage: – was, at the time it was solemnised, valid under the law of Ruritania;211 or – had, at the time the validity of the marriage is being determined, been validated by the law of Ruritania;212 and • the marriage is essentially valid under the law of Australia.213 206. 207. 208. 209. 210. 211. 212. 213.

Marriage Act 1961 (Cth) s 88C(1)(a). Marriage Act 1961 (Cth) s 88D(1). Marriage Act 1961 (Cth) s 88E(1). Marriage Act 1961 (Cth) s 88EA (repealed). See 13.56. For example, Austin & Hong [2015] FamCA 1119 at [56]–[59]; Nelson & Nelson [2016] FamCA 516 at [13]. Marriage Act 1961 (Cth) ss 88C(1)(a), (2)(a), 88D(1). Marriage Act 1961 (Cth) s 88D(2)–(3).

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To the extent that the validity of the marriage is referred to the law of Ruritania, no distinction is made between questions of formal and essential validity. The marriage will not be recognised in Australia if it is invalid as to form in Ruritania or, for example, the parties are not of marriageable age under the law of Ruritania. Further, the marriage will not be recognised even if it is valid in Ruritania, but is considered under the law of Ruritania to be voidable;214 for example, because it has not been consummated. In this latter respect, the law of Australia will refuse recognition to the union and, on that basis, could not grant a declaration that the marriage is valid. Still, a court could not take the additional step of granting a decree of annulment as it only has jurisdiction to do so when the marriage is void.215 In any other case, the marriage might be recognised because it is valid under the law of Ruritania. However, even where a marriage is valid under the law of Ruritania it could, nevertheless, be refused recognition because, in some respects, it is not essentially valid under the law of Australia. Part VA therefore sets minimum standards of essential validity for a marriage to be recognised in Australia. These are: (1) neither party to the marriage can already be lawfully married to another person;216 (2) both parties must be of marriageable age; (3) the parties cannot be within a prohibited relationship; and (4) there must be reality of consent.217 In relation to marriageable age, if at least one party is domiciled in Australia then both parties must be of marriageable age under the law of Australia.218 Where neither party is domiciled in Australia, the marriage will not be recognised in Australia ‘while’ either party is aged under 16 years.219 This suggests that if, for example, a party was 14 years of age when the marriage was entered but 17 years of age when its validity came to be determined, the marriage could still be recognised. 13.53  There is a general exception to these rules for marriages solemnised in a place outside Australia (Ruritania) by, or in the presence of, a diplomatic or consular official of another place outside Australia (Hentzau). The marriage need not comply with the requirements imposed by the internal law of Ruritania, where it was solemnised. It will be recognised in Australia when: • the marriage: – was, at the time it was solemnised, valid under the law of Hentzau; or – had, at the time the validity of the marriage is being determined, been validated under the law of Hentzau; • at the time the marriage was solemnised its solemnisation was not prohibited by the law of Ruritania;220 and • the marriage is essentially valid under the law of Australia.221 214. Marriage Act 1961 (Cth) s 88D(4). 215. Family Law Act 1975 (Cth) s 51. 216. Cf Parma & Parma [2007] FamCA 670 at [23]–[38]; Dohm & Acton [2008] FamCA 482 at [154]–[16]; Rutherford & Safi [2014] FamCA 154 at [9]–[13]; Hills & Killen [2015] FamCA 536 at [11]–[14]; Kirkby & Kirkby [2017] FamCA 884 at [19]. If monogamous spouses go through a ceremony of marriage again in a different country, neither spouse will be considered to be already married to ‘another person’ under the Marriage Act 1961 (Cth) s 88D: Lieu & Antcliff [2016] FamCA 942 at [12]–[16]. 217. Marriage Act 1961 (Cth) s 88D(2); cf Kreet & Sampir (2011) 44 Fam LR 405; [2011] FamCA 22. 218. See 13.42; cf Eldaleh [2016] FamCA 1103 at [7]–[9]. 219. Marriage Act 1961 (Cth) s 88D(3). 220. Marriage Act 1961 (Cth) ss 88C(1)(b), (2)(b), 88D(1). 221. Marriage Act 1961 (Cth) s 88D(2)–(3).

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13.55

Once more, the marriage cannot be recognised in Australia if it is voidable under the law of Hentzau, the country represented by the diplomat or consul in question.222 The requirements for the essential validity of the marriage under the law of Australia are the same as for marriages solemnised in Ruritania under the law of Ruritania.223 Therefore, a marriage celebrated in the Egyptian Embassy in Paris can be recognised in Australia if it is valid under the law of Egypt and not prohibited by the law of France. However, that marriage will not be recognised under these provisions of the Marriage Act if it is actually polygamous, as one of the parties was, at the time of the marriage, already married to another person.224 These provisions do not apply to marriages by Australian delegates in other countries. 13.54  There is a more limited exception under Pt V of the Marriage Act for marriages solemnised overseas by Australian marriage officers or chaplains. This exception is not available when the marriage was solemnised in one of the other dominions of the Commonwealth, including Canada, New Zealand, Papua New Guinea and the United Kingdom.225 However, the exception can apply to any non-Commonwealth country or republic in the Commonwealth (such as India or South Africa) that is also a prescribed country under the Marriage Act. Here, a marriage will be recognised when: • the marriage was solemnised: – by an Australian marriage officer and one of the parties was an Australian citizen;226 or – by a chaplain and one of the parties is a member of the Australian Defence Force;227 and • the marriage is essentially valid under the law of Australia.228 So, a marriage solemnised under Pt V is recognised in Australia even if it is invalid under the law of the place where it was solemnised — Ruritania — or, for that matter, had been annulled by a foreign court on the ground it did not comply with the law of Ruritania.229 Further, a marriage between an Australian citizen and a United Kingdom citizen will be recognised if it was solemnised in a non-Commonwealth country by, or before, a British diplomatic or consular official.230

Common law grounds of recognition 13.55  Even though a marriage solemnised outside Australia might not be recognised under the statutory rules discussed above, it might still be recognised in Australia when: • the marriage is recognised as valid under the common law rules of private international law;231 and 222. 223. 224. 225. 226. 227. 228. 229. 230. 231.

Marriage Act 1961 (Cth) s 88D(4)(b). See 13.53. Cf Radwan v Radwan (No 2) [1973] Fam 35. Marriage Act 1961 (Cth) s 5(1). Marriage Act 1961 (Cth) s 65. Marriage Act 1961 (Cth) s 71(1). Marriage Act 1961 (Cth) s 23A(1)(b). Marriage Act 1961 (Cth) s 104(6). Marriage Act 1961 (Cth) s 88; Foreign Marriage Act 1892 (UK). Marriage Act 1961 (Cth) s 88E(1).

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• if one party to the marriage was domiciled in Australia, both parties were of marriageable age.232 Therefore, where the common law choice of law rules for marriage have a more liberal effect than the statutory rules of Pt VA, they can be used to have the marriage recognised. The only aspect of the common law that is expressly abrogated is the incidental question method.233 Indeed, the more restrictive statutory rules cannot be used to read limitations into the effect of the common law rules.234 With this in mind, the common law rules could help the recognition of a marriage in at least four general circumstances. First, a marriage solemnised in a place outside Australia (Ruritania) that does not comply with formalities prescribed by the law of Ruritania cannot be recognised under the statutory rules.235 However, it could be recognised in Australia if it satisfied the requirements for a common law marriage.236 Second, a marriage solemnised in Ruritania that is not essentially valid under the law of Ruritania cannot again be recognised under the statutory rules.237 However, it could be recognised if it were essentially valid under the laws of the places where the parties were respectively domiciled at the time of the marriage or, perhaps, under the rule in Sottomayor v De Barros (No 2).238 Third, a marriage that is valid but voidable where it was solemnised or, for a diplomatic or consular marriage, in the place represented by the diplomatic or consular officer in question, cannot be recognised under the statutory rules.239 However, it could be recognised at common law.240 Fourth, an actually polygamous marriage solemnised outside Australia could not be recognised under the statutory rules.241 For some purposes, nevertheless, it could be recognised at common law.242 These are not the only circumstances in which the common law choice of law rules might allow an otherwise invalid marriage to be recognised. Further development is possible and, as in Lawrence v Lawrence,243 could lead to even more generous grounds for the recognition of marriages at common law.

Specific issues for marriages solemnised overseas 13.56  An issue arises where a person domiciled in Australia sought, before 9 December 2017, to contract a same-sex marriage in a foreign place where same-sex marriage was legally available. To give a specific example, it was common for Australian same-sex couples to travel to New Zealand to marry — ‘gay marriage tourism’ — after New Zealand provided for same-sex marriage in 2013.244 A marriage will be recognised in Australia under Pt VA 232. 233. 234. 235. 236. 237. 238. 239. 240. 241. 242. 243. 244.

Marriage Act 1961 (Cth) s 88E(2). See 13.53. Marriage Act 1961 (Cth) s 88E(1). Marriage Act 1961 (Cth) s 88D(1). See 13.25–13.30. Marriage Act 1961 (Cth) s 88D(1). See 13.37–13.38. Marriage Act 1961 (Cth) s 88D(4). See 13.53. Marriage Act 1961 (Cth) s 88D(2)(a). See 13.19–13.20. [1985] Fam 106; see also 13.33–13.34. Marriage (Definition of Marriage) Act 2013 (NZ) s 5.

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of the Marriage Act on statutory grounds if, under the law of the place of solemnisation, it was ‘at the time when it was solemnised, recognised as valid’. There is no guarantee that such a marriage conducted in New Zealand would have been be valid by the law of New Zealand at the time of the ceremony, even though it complied with the forms of the New  Zealand  marriage law. This is because, in New Zealand, the essential validity of a marriage is determined at common law by the law of the place where each of the parties was domiciled at the time of the marriage.245 Further, the Marriage Act 1955 (NZ) appears to limit its rules of capacity to marry to people domiciled in New Zealand only,246 possibly reinforcing that the New Zealand laws giving capacity to enter same-sex marriages applied to New Zealanders only. There is therefore a significant probability that, despite the provision for same-sex marriage in New Zealand, the law of New Zealand did not consider that, before 9 December 2017, an Australian domiciliary had capacity to enter a same-sex marriage in New Zealand. If not essentially valid under New Zealand law at the time of solemnisation, it could not, even after 9 December 2017, be recognised in Australia. The recognition of such a union in Australia on common law grounds would confront similar problems, but even more directly through the Australian choice of law rule for questions of the essential validity of a marriage. As essential validity is generally regarded in Australia as a question for the law of the place of the parties’ respective domiciles, it is unlikely that an Australian court would consider that, before 9 December 2017, an Australian domiciliary had capacity to enter a same-sex union overseas. And assuming that the same-sex couple planned to return to live in Australia, the result would be the same under the intended matrimonial home rule.247 A similar analysis of this situation was undertaken in the English case of Wilkinson v Kitzinger,248 decided before same-sex marriage was recognised in the United Kingdom but when it was available in British Columbia. A female couple, both domiciled in England, underwent a ceremony of marriage in British Columbia in 2003, and on returning to England sought a declaration that the marriage was valid. Sir Mark Potter P reiterated that, at that point, Hyde v Hyde governed the legal definition of a marriage in England.249 He treated this as a question of capacity to marry and, whether determined by the dual domicile rule or the intended matrimonial home rule, it was a question to be governed by English law.250 The British Columbia marriage would not therefore be recognised as a marriage in England,251 although it would be recognised as a civil partnership.252 Although the couple argued that the effect of the English choice of law rule should be adjusted by United Kingdom human rights legislation, Potter P held that the legislation did not have that consequence. A similar outcome is almost inevitable at common law in Australia for an Australian same-sex couple who married before 9 December 2017 while temporarily overseas. 13.57  Even where a marriage would not be recognised under the statutory rules of Pt VA or the common law rules it preserves, under s 88E(3) of the Marriage Act it could 245. 246. 247. 248. 249. 250. 251. 252.

Hassan v Hassan [1978] 1 NZLR 385. Marriage Act 1955 (NZ) s 3(1). See 13.32–13.36. [2006] EWHC 2022 (Fam). At [11]. At [15]. At [16]. At [25].

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still be recognised under other federal, state or territory laws. In this connection, the Commonwealth  Government made regulations allowing the recognition of marriages recognised in India under the Special Marriages Act  1954, in New Zealand  under the Marriage Act  1955 and in the United Kingdom under the Foreign Marriages Act  1892. The relevant provisions of these statutes parallel Pt V of the Australian Marriage Act, and only apply to marriages solemnised outside the country in question.253 Since s 88E(3) only applies to marriages solemnised outside Australia, the marriage would have to be celebrated in some place other than, for example, India or Australia to be considered for recognition. 13.58  Part VA expressly denies use of the incidental question method in determining whether a marriage solemnised in a place outside Australia should be recognised.254 Therefore, if it is necessary to know whether an overseas marriage is valid in order to determine whether a woman is entitled to an inheritance as the testator’s wife, that question is to be determined by reference to the rules of Pt VA and not, as in the incidental question method, by the law governing the primary question of succession. This provision seems to have been misunderstood in Marriage of Teves and Campomayor.255 There, in proceedings for the annulment of a marriage celebrated in the Philippines on the basis that the wife’s consent was obtained by duress, Lindenmayer J held that the question of the validity of the marriage was incidental to the determination of a question of the ‘essential validity’ of the marriage and whether it was void.256 The reference to ‘essential validity’ is superfluous. However, as the question in proceedings for annulment is whether the marriage is void, the question of the validity of the marriage in Teves and Campomayor was in fact the primary question to determine. The incidental question method can still be used in cases like Haque v Haque (No 1),257 where the marriage was solemnised in Australia before 7 April 1986. The terms of the Marriage Act suggest that the validity of a marriage solemnised in Australia since that date is to be determined exclusively in accordance with Pt III, Div 2, implying that the incidental question method cannot be used.258

The recognition of other interstate and foreign adult relationships 13.59  The recognition of other adult relationships in the Australian Capital Territory and New South Wales  extends also to the recognition of unions made under similar legislation in other places. This kind of recognition is important if the parties to the outof-state union wish to obtain some kind of relief — such as termination or revocation of the status — under the law of the territory or state. In the Australian Capital Territory, Queensland and South Australia, the legislation enables regulations to be made to provide that a union recognised under a ‘comparable’ or ‘corresponding’ law — whether that law be the law of another territory, a state or another country — will be regarded as a civil 253. 254. 255. 256. 257. 258.

See 13.54. Marriage Act 1961 (Cth) s 88F. [1995] FLC 92-578. Marriage of Teves and Campomayor (1995) FLC 92-578 at 81,735. (1962) 108 CLR 230. Marriage Act 1961 (Cth) s 23A(1)(a).

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13.59

union or partnership or a registered relationship in the territory or state. The Australian Capital Territory has not made those regulations under the Civil Unions Act 2012 (ACT), although regulations had existed under earlier legislation for civil partnerships.260 The New South Wales  legislation only permits the recognition of similar unions made under the law of another state or territory of Australia.261 In New South Wales, other registered adult relationships made in the Australian Capital Territory, Queensland, Tasmania or Victoria will be recognised.262 In Queensland, other registered adult relationships made in the Australian Capital Territory, California, Hawaii, Manitoba, New South Wales, New Zealand, Nova Scotia, Québec, South Africa, South Australia, Tasmania, the United Kingdom or Victoria will be recognised.263 The South Australian legislation provides for the recognition, as registered relationships, of similar unions and marriages made in the Australian Capital Territory, California, Canada (expressly including Nova Scotia and Québec), Hawaii, the Netherlands, New South Wales, New York, New Zealand, Queensland, South Africa, Tasmania, the United  Kingdom (including Scotland) or Victoria.264 In Tasmania, similar unions and marriages formed in Alberta, the Australian Capital Territory, British Columbia, Ireland, Manitoba, New  Brunswick, Newfoundland and Labrador, New South Wales, New Zealand, Northwest Territories, Nova Scotia, Nunavit, Ontario, Prince Edward Island, Québec, Queensland, Saskatchewan, the United Kingdom, Victoria or Yukon are recognised.265 Two points should be noted. First, the South Australia and Tasmanian laws for recognising different kinds of unions as registered or significant relationships include those that arise under some foreign marriage laws. In both cases, however, recognition as another adult relationship is not permitted if the union would in Australia qualify as a marriage. The provision was made to enable foreign same-sex marriages to be recognised, at the least, as another adult relationship before Australian federal law recognised samesex marriage Australia. Since 9 December 2017, an initial question would arise under the South Australian and Tasmanian laws whether the relevant foreign union qualifies as a marriage under Pt VA of the Marriage Act. Second, recognition of an out-of-state union is only possible when the regulations expressly provide for a union made in a specified place to be recognised. There is no general choice of law rule, as there is in the United Kingdom, providing for the recognition in an Australian jurisdiction of unions that meet certain criteria but that are not expressly mentioned by the executive government as qualifying for recognition. The Civil Partnership Act 2004 (UK) expressly provides for the recognition of same-sex civil unions made in nominated places outside the United Kingdom,266 and this remains the case even though same-sex unions may also qualify as marriages in England and Wales and in Scotland. However, it also provides for the recognition of any foreign 259

259. Civil Unions Act 2012 (ACT) s 27; Civil Partnerships Act 2011 (Qld) s 33(2); Relationships Register Act 2016 (SA) s 26(1). 260. Civil Partnerships Act  2008 (ACT) s  15 (repealed); Civil Partnerships Regulation 2010 (ACT) reg 4 (repealed). 261. Relationships Register Act 2010 (NSW) s 16. 262. Relationships Register Regulation 2010 (NSW) reg 4. 263. Civil Partnerships Regulation 2012 (Qld) reg 4. 264. Relationships Register Act 2016 (SA) s 65A; Relationships Regulations 2016 (SA) reg 7. 265. Relationships Act 2003 (Tas) s 65A; Relationships Regulations 2013 (Tas) reg 8. 266. Civil Partnership Act 2004 (UK) Sch 20.

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union as a civil partnership if it is, in effect, monogamous; it is for an indefinite period; and it treats the parties as a ‘couple’ or as married. It must also be a same-sex union, and registered with a relevant state authority.267 Accordingly, a civil partnership entered in an Australian jurisdiction could potentially be recognised in the United Kingdom under the Civil Partnership Act’s general choice of law rule.268 There is reciprocal recognition of United Kingdom civil partnerships in Queensland, South Australia and Tasmania.269 13.60  There is no provision in Victoria for the recognition of any other adult relationship that is established or registered out-of-state. As a result, another adult relationship will only be recognised if it is separately registered in Victoria as a registered domestic relationship. This also necessarily demands that the parties have the required personal connections with Victoria in order to qualify for registration.270 Forms of relief or orders made in relation to other adult relationships are therefore only available in Victoria for those relationships that were registered in the state.

267. Civil Partnership Act 2004 (UK) ss 214, 216. 268. See K McK Norrie, ‘Recognition of Foreign Relationships under the Civil Partnership Act 2004’ (2006) 2(1) Journal of Private International Law 137 at 141–4. 269. Civil Partnerships Regulation 2012 (Qld) reg 4; Relationships Regulations 2013 (Tas) reg 8. 270. See 13.13.

366

Chapter 14 Separation, Dissolution and Annulment of Marriage Introduction 14.1  Throughout this book, the different departments of the private law, such as contracts and torts, are dealt with separately when dealing with the choice of law issue. The other issues of private international law — jurisdiction and the recognition and enforcement of a foreign judgment — are dealt with generally because the basic principles are the same for most departments of the private law. This is not so when matrimonial causes are considered,1 and in this chapter and Chapters  15 and 16 all three ‘issues’ of private international law are discussed. The rules of jurisdiction and the recognition of decrees and orders in matrimonial causes are unique to the actions involved. Further, the rules of recognition play a much more important role than they do in other areas of the law. This is an historical accident. The law relating to marriage, in particular, originates in the Roman canon law that, before the 16th century Reformation, was administered across Europe by ecclesiastical courts. There was no risk of a conflict of laws in this international legal system, so the question became whether an ecclesiastical court in one part of Christendom should recognise the pronouncements of another. That was determined by considering whether the other court had jurisdiction to make the order that it did. This remains the basic structure in western legal systems for determining multi-state matrimonial causes.2 14.2  In Australia, matrimonial causes are largely a matter within federal responsibility, and the federal parliament has legislated to ‘cover the field’ and so deny any operation to state laws in the area. The relevant legislation is the Family Law Act 1975 (Cth). This replaced the Matrimonial Causes Act 1959 (Cth), the latter itself replacing state and territory legislation on matrimonial causes. In the Family Law Act, a ‘matrimonial cause’ is defined as including proceedings in relation to dissolution, annulment, the validity of a marriage, maintenance and property distribution.3 However, in this chapter only the principal proceedings for dissolution of marriage — that is, divorce — and nullity of marriage are discussed.4 The rules relating to multi-state parenting orders are discussed in Chapter 15. Those relating to property and maintenance orders are discussed in Chapter 16. 1. 2. 3. 4.

Nor companies applications. See Chapter 23. O Kahn-Freund, The Growth of Internationalism in English Private International Law, The Magnes Press, Jerusalem, 1960, pp 11–12. Family Law Act 1975 (Cth) s 4(1). Family Law Act 1975 (Cth) s 4(1)(a).

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14.3  There are parallel actions for a declaration that another legally-recognised adult relationship is void, and for the termination or revocation of other adult relationships under legislation in the Australian Capital Territory, New South Wales, Queensland, South Australia, Tasmania and Victoria.5

Jurisdiction Dissolution of marriage 14.4  There is jurisdiction in Australia to hear and determine proceedings for the dissolution of a marriage if, on the date the application is filed, either party to the marriage is an Australian citizen;6 domiciled in Australia;7 or ordinarily resident in Australia8 and, in addition, has been so resident for one year immediately preceding that date.9 The same rules of jurisdiction apply when the proceedings are for the recognition of the validity of an overseas divorce.10

Annulment of marriage 14.5  There is jurisdiction in Australia to hear and determine proceedings for the annulment of a marriage if, on the date the application is filed, either party to the marriage is an Australian citizen; ordinarily resident in Australia; or present in Australia.11 These are broader than the grounds of jurisdiction relating to dissolution. However, this is understandable in that the choice of law rules relating to annulment often require the laws of a foreign place to be applied. The choice of law rule for dissolution does not, and this parochialism is corrected to a small extent by curbing the jurisdiction of the courts to deal with proceedings for dissolution. As will be seen, the rules of jurisdiction for all forms of principal relief in matrimonial causes are nevertheless exorbitant, and require reform.12

Stay of proceedings 14.6  Even where jurisdiction in a matrimonial cause is properly invoked by an applicant, a court may, on application by the respondent, grant a stay of proceedings. It has been seen that the basic principle on which a stay is granted is that the proceeding is vexatious and

5.

6. 7. 8. 9. 10. 11. 12.

Civil Unions Act  2012 (ACT) ss  11–14, 21; Relationships Register Act  2010 (NSW) ss  10–15; Civil Partnerships Act 2011 (Qld) ss 14–19, 30, 44; Relationships Register Act 2016 (SA) ss 10–14; Relationships Act 2003 (Tas) ss 15–17; Relationships Act 2008 (Vic) ss 11–16. For example, Clayton v Bant (No 2) [2015] FamCA 102 at [46]; Templeman and Linden [2015] FamCA 528 at [25]. For example, Park and Byon [2003] FamCA 121; Tedja and Sony [2015] FamCAFC 13 at [27]. For example, Tedja and Sony [2015] FamCAFC 13 at [27]. Family Law Act 1975 (Cth) s 39(3). Chandra and Alhoub [2015] FamCA 77 at [21]. Family Law Act 1975 (Cth) s 39(4); Walton and Esposito [2006] FamCA 336 at [5]. See 14.10.

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oppressive. This basic principle applies in matrimonial causes that a court can properly determine.14 13

14.7  The parties in Henry v Henry15 were married in Germany, but lived in Monaco between 1988 and 1993. The husband had property or business interests throughout Europe, North America and Asia. He was born in Australia, returned in 1993 and acquired a domicile of choice in Australia by the time he filed for a dissolution of the marriage in the Family Court in November of that year. However, the wife had commenced matrimonial proceedings in Monaco in December 1992. These were unequivocally proceedings for divorce by August 1993. The husband contested the jurisdiction of the Monegasque courts, but this challenge eventually failed. In the Family Court, the wife argued that proceedings should be stayed on the ground of forum non conveniens. This failed before the Judicial Registrar, Ross-Jones J and the Full Court, but her appeal to the High Court was successful. 14.8  The High Court in Henry v Henry agreed that the principles of forum non conveniens applied to proceedings for dissolution of marriage. Dawson, Gaudron, McHugh and Gummow JJ held that it is prima facie vexatious and oppressive to commence proceedings in Australia if proceedings are already pending in another place in respect of the same matter in issue.16 That may, depending on the circumstances, lead a court to stay the proceedings for dissolution in Australia. In this connection it was relevant to consider: whether the foreign court has jurisdiction in respect of the parties and their marriage; whether any decree the foreign court makes will be recognised in Australia; the order in which the separate proceedings were commenced, the stage each has reached and the costs already incurred; the connections each party has with Australia and the foreign place and the issues on which relief depends in Australia and the foreign place; and, having regard to each party’s resources and language, whether they can participate in the proceedings in Australia and the foreign place on an equal footing. Other considerations might also be relevant.17 The High Court held that the Family Court gave either no or insufficient regard to the Monegasque proceedings, and remitted the matter to the Family Court for final determination there.18 Brennan CJ stated the principle differently, holding that to obtain a stay the respondent had to show that the court in Australia is a clearly inappropriate forum for the proceedings for dissolution in question, and that there is a foreign court that has and can exercise jurisdiction in proceedings for dissolution.19 In the circumstances of Henry, Brennan CJ would have granted a stay. The principles of Henry have been applied subsequently in cases in which foreign proceedings for divorce were first in time,20 although it may not always be the only 13. 14. 15. 16. 17. 18. 19. 20.

See 4.39–4.47. Gilmore v Gilmore [1993] FLC 92-353; Henry v Henry (1996) 185 CLR 571; cf De Dampierre v De Dampierre [1988] AC 92 at 102. (1996) 185 CLR 571. At 590–1. At 592–3. At 581, 593. At 578. Ferrier-Watson and McElrath (2000) 155 FLR 311; [2000] FamCA 219; Steen and Black (2000) FLC 93-005; Sankil and Sankil (2007) FLC 93-351; [2007] FamCA 1381; Navarro and Jurado (2010) 44 Fam LR 310; [2010] FamCAFC 210; cf Park and Byon [2003] FamCA 121.

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consideration that weighs in favour of a stay. However, the principles of Henry do not mean that a stay will always be granted when the foreign proceedings are commenced before the Australian proceedings,21 but the prospects are greater than in other cases of forum non conveniens. Where Australian proceedings are first in time and the foreign proceedings are at an early stage, a stay is likely to be refused.22 Another consideration that may lead a court to refuse a stay is that, owing to differences in the law of divorce in the foreign country, a divorce may not be available in the other country although it is available to the parties in Australia.23 Naturally, where there are a number of different matrimonial causes brought before an Australian court, it is open to the court to stay proceedings in respect of one of those causes (for example, proceedings in respect of foreign property) while, at the same time, continuing to exercise jurisdiction in respect of others (for example, property located in Australia, or parenting orders).24

Stay of proceedings — New Zealand 14.9  If the application for dissolution or annulment raises a question of the competing jurisdiction of the New Zealand courts, the application for a stay must be determined under the Trans-Tasman Proceedings Act 2010 (Cth).25 The question therefore becomes whether the New Zealand  court ‘has jurisdiction to determine the matters in dispute’ and ‘is the more appropriate court’ for determining them.26

Possible reforms 14.10  The Australian rules of jurisdiction in dissolution and annulment cases are broad, and even exorbitant. Keyes has argued that, if the jurisdiction exercised is to be proportionate by international standards, of all of the connections for establishing jurisdiction in these matrimonial causes only ordinary residence approximates a requirement for a real and substantial connection between the parties and the forum. However, even for ordinary residence, the jurisdiction allowed by the Family Law Act is flawed, as the connection is only required for one of the parties to the marriage, and the other may still have no relevant connection with the Australian forum.27 Further, like most commentators, Keyes also believes that the Australian principles of forum non conveniens, with their ‘heavily forum-centric’ leaning, do not provide any realistic corrective to this broad jurisdiction, and add to the uncertainty of identifying the preferred forum for dealing with the dispute.28 She suggests a closer alignment between the rules for establishing and declining jurisdiction. In short, the more substantial connection required for establishing jurisdiction would be satisfied if the Act required either party to have been ordinarily resident in Australia for the year before the proceedings were commenced, and, in addition, Australia was the last place where 21. 22. 23. 24. 25. 26. 27. 28.

Marriage of Khademollah (2000) 159 FLR 42; [2000] FamCA 1045. For example, Tedja and Sony [2015] FamCAFC 13 at [48]. Jasmit and Jasmit [2014] FCCA 972 at [43]–[45]. Kemeny v Kemeny (1998) FLC 92-806; [1998] FamCA 34. Trans-Tasman Proceedings Act 2010 (Cth) ss 17–19; see 4.53-4.54. Trans-Tasman Proceedings Act 2010 (Cth) s 19(1). M Keyes, ‘Jurisdiction in International Family Litigation: A Critical Analysis’ (2004) 27 University of New South Wales Law Journal 42 at 47. At 63.

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14.11

the parties cohabited or where the relationship was based. Alternatively, jurisdiction could be based on either party’s residence in Australia for the year before the proceedings were commenced, and, further, the dependent children of the relationship are, or a substantial portion of the property of the marriage is, in Australia. Jurisdiction could also be established by submission, which is not presently possible in matrimonial causes.29 Jurisdiction would be declined on the basis of the Spiliada principles of forum non conveniens,30 in that no more weight would be given to the applicant’s selection of forum than the respondent’s. If, as is the case for divorce in Australia,31 the law of the cause in each of the competing courts was the law of the forum, no weight whatsoever should be given to the governing law.32 More restrictive rules for establishing jurisdiction, and broader rules for stays of proceedings, would serve the rule of law better in giving principles of jurisdiction that have greater clarity, certainty and predictability.33 The present broad jurisdiction that is exercisable, and barely constrained, in applications in Australia for dissolution and annulment, allow considerable overlap with the jurisdiction of foreign courts, and undermine those objectives.

Courts 14.11  These jurisdictions are invested in the Family Court of Australia, except in Western Australia where they are invested in the Family Court of that state.34 In the Northern Territory, the Family Court exercises these jurisdictions concurrently with the territory Supreme Court. However, the latter will only have jurisdiction in a matrimonial cause when, in addition to satisfying the normal rules of jurisdiction, it is shown that at least one party to the marriage is ordinarily resident in the Northern Territory.35 It was in part the emergence of gaps between the jurisdictions of the Family Court and the Supreme Courts of the states and territories that led to the development of the cross-vesting scheme.36 Under the Crossvesting Acts, the jurisdictions of the Family Court of Australia and the Family Court of Western Australia are invested in the Supreme Courts of all other states and territories (including the external territories).37 Therefore, the Supreme Courts also have jurisdiction to hear and determine proceedings for dissolution and annulment. In most cases, however, they are likely to transfer such proceedings to the appropriate Family Court.38 The Federal Circuit Court may hear and determine applications for dissolution of marriage. It has no jurisdiction in applications for annulment or declarations of the validity of marriage. Importantly, in multi-state matters it also has no jurisdiction to determine the validity of a decree of dissolution or annulment that was made outside Australia.39 The Federal Court has no jurisdiction in matrimonial causes. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39.

At 61–2. See 4.32–4.38. See 14.13. Keyes, above n 27, at 63–4. At 60. Family Law Act 1975 (Cth) ss 39(1)(a), 41. Family Law Act 1975 (Cth) s 39(8). See 2.28–2.36. Song v Shi [2011] NSWSC 1207 at [7]–[10]; Stillianesis v Stillianesis [2017] NSWSC 1189 at [34]. See 4.59–4.73. Family Law Act 1975 (Cth) s 39(1A).

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Other adult relationships 14.12  A civil partnership made in the Australian Capital Territory can only be terminated within the territory by written notice to the Registrar-General, or by an order of the Supreme Court.40 In New South Wales and South Australia, any state court has power to declare a registered relationship void.41 Applications for the revocation of a registered relationship in New South Wales  and in South Australia are made to the relevant state’s Registrar of Births, Deaths and Marriages.42 In Queensland, any party to a civil partnership (or both) may apply to the District Court for an order terminating the civil partnership.43 In Tasmania, a significant relationship can be revoked on application to the Registrar of Births, Deaths and Marriages in that state, or to a court. The Magistrates Court is expressly given power to order the revocation of a significant relationship.44 Similarly, in Victoria, a relationship registered in that state can be revoked on application to the Registrar or to any state court.45 Jurisdiction for the declaration that the relationship is void, revoked or terminated is in all cases grounded on the creation of the particular form of adult union in the relevant state or territory, and not on personal connections that the parties may have with the state or territory.

Choice of law Dissolution 14.13  The common law choice of law rule appears to be that a question as to the dissolution of a marriage is to be determined in accordance with the law of the forum.46 This is reinforced by statute, which provides that a decree of dissolution can be made even if some or all of the circumstances on which the decree is based took place outside Australia.47 In Australia, there is only one ground allowing the dissolution of a marriage: 12 months’ continued separation.48 The divorce can therefore be granted even if the parties separated while in a foreign place and independently lived apart in a foreign place or places for at least 12 months. It is irrelevant that 12 months separation might not be a ground of dissolution in any of the foreign places where they lived. The law of Australia alone applies.49

40. 41. 42. 43. 44. 45. 46. 47. 48. 49.

Civil Unions Act 2012 (ACT) ss 12–14. Relationships Register Act 2010 (NSW) s 14; Relationships Register Act 2016 (SA) s 14(3). Relationships Register Act 2010 (NSW) ss 11–13; Relationships Register Act 2016 (SA) ss 10–12. Civil Partnerships Act 2011 (Qld) s 15. Relationships Act 2003 (Tas) ss 15–18. Relationships Act 2008 (Vic) ss 11–16. Tracy v Tracy (1939) 39 SR (NSW) 447; Worth v Worth [1931] NZLR 1109. Family Law Act 1975 (Cth) s 53. Family Law Act 1975 (Cth) s 48. Cf Grummett v Grummett (1965) 7 FLR 415. Keyes has suggested that this is justified when the rules of jurisdiction are narrow, and so do the traditional work of choice of law rules in finding the law that is appropriate for dealing with the dispute. It is not justified where, as in Australia, the rules of jurisdiction are broad, and cases having only slim connections with Australia are nevertheless within the jurisdiction of the courts: Keyes, above n 27, at 57.

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14.18

Annulment 14.14  A decree of nullity of marriage must be based on the ground that the marriage is void.50 This is determined by applying the relevant choice of law rules for the validity of the marriage. These were discussed in Chapter 13. The annulment cannot be granted if the marriage is merely voidable (but still valid) under the relevant law of the cause.51

Void, revoked and terminated adult relationships 14.15  The state and territory legislation dealing with other adult unions strictly relies on the law of the forum — the terms of the relevant statute — when determining whether the union is void, or to be revoked or terminated.

Recognition of decrees Australian decrees 14.16  There is recognition throughout Australia and its external territories of any decree of dissolution or annulment made under the Family Law Act.52 Similarly, recognition is also given to any decree made under its predecessors — the Matrimonial Causes Act 1959 (Cth), and any earlier federal, state or territory law.53 14.17  The Matrimonial Causes (War Marriages) Act 1947 (NZ) and the Matrimonial Causes (War Marriages) Act 1944 (UK) respectively gave jurisdiction to courts in New Zealand and the countries of the United Kingdom to determine any proceedings for divorce or annulment when the wife was a ‘war bride’ domiciled in the relevant place before the marriage. These decrees are recognised by courts in Australia (including Norfolk Island).54

New Zealand decrees 14.18  A judgment made in a matrimonial proceeding in a New Zealand  court is registrable in an Australian court under the Trans-Tasman Proceedings Act 2010 (Cth).55 The provisions in the Act for the registration of judgments, however, do not apply to matters relating to the dissolution of marriage.56 As a result, the recognition of New Zealand divorces continues to be dealt with under the Family Law Act and, therefore, New Zealand divorces are recognised in Australia in accordance with the same principles that are applicable to the recognition of other foreign decrees of dissolution. The Act nevertheless does not exclude matters relating to the annulment or validity of marriage, and this opens the possibility that annulments granted by New Zealand  courts are registrable in Australia under the

50. 51. 52. 53. 54. 55. 56.

Family Law Act 1975 (Cth) s 51. See 13.43. Family Law Act 1975 (Cth) s 103. Family Law Act 1975 (Cth) s 3(2)(b)–(c). Family Law Act 1975 (Cth) ss 3(2)(a), 4(1). Trans-Tasman Proceedings Act 2010 (Cth) ss 67–68. Trans-Tasman Proceedings Act 2010 (Cth) ss 4, 66(2)(a).

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same conditions as are other civil judgments made by New Zealand courts. As a result, a New Zealand  annulment would be registrable and given effect in Australia without any possibility of questioning the power of the New Zealand court to grant it. Its registration in Australia could only be challenged on the ground of public policy.57

Sources of rules for recognising foreign decrees 14.19  The rules for the recognition in Australia (including Norfolk Island) of a decree of dissolution or annulment made in accordance with the law of a foreign territory are set out in s 104 of the Family Law Act. It also provides for the recognition of decrees of legal separation. Further, once a decree qualifies for recognition under s 104 it is also to be recognised in the other external territories.58 These rules apply whether the dissolution or annulment is effected by the decree of a court, by legislation or ‘otherwise’.59 This can include decrees made in accordance with religious law.60 Section 104 largely implements the Hague Convention on Recognition of Divorces and Legal Separations 1970,61 and provides two general schemes for the recognition of foreign decrees: • recognition on statutory grounds under s 104(3); and • recognition at common law under s 104(5). 14.20  Some points should be made about the differences and relationship between the two schemes. First, to recognise a decree on a statutory ground, two general conditions must be satisfied. The first of these general conditions is that, under s 104(3), the decree must have been ‘effected in accordance with the law of an overseas jurisdiction’. The second general condition is that a party to the decree must have had some personal connection with that foreign place. The personal connections that are sufficient to satisfy this second general condition are discussed in detail below. Usually, to recognise a decree at common law it need only be shown that a party to the decree had some personal connection with the place in which it was made. 14.21  Second, the requirement for recognition on a statutory ground that the decree be ‘effected in accordance with the law of an overseas jurisdiction’ leads to another difference. To recognise a decree on a statutory ground it merely needs to be recognised and effective in the connected place.62 Indeed, it need not even be the result of civil adjudication. The decree might have been made by a religious court or through a non-judicial procedure like the Islamic talaq or the Jewish gett. If it leads to an effective dissolution or annulment in a connected place, it will be recognised in Australia.63 In Maider and Carrigan,64 the 57. 58. 59. 60. 61. 62. 63. 64.

See 5.76 and 5.77. Family Law Act 1975 (Cth) s 104A. Family Law Act 1975 (Cth) s 104(10). Quazi v Quazi [1980] AC 744. Convention on the Recognition of Divorces and Legal Separations, 1 June 1970, Hague, No 18 (entered into force 25 August 1975). Cf Norman v Norman (No 3) (1969) 16 FLR 231 at 232. Quazi v  Quazi [1980] AC 744; [60]–[61]; Anderson and McIntosh [2013] FamCAFC 200; cf Basra and Ahmed [2016] FamCA 838. [2008] FamCA 862.

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14.24

husband claimed that a talaq made in Pakistan should be recognised in Australia on the ground that the wife was a Pakistani national and, therefore, the divorce had been made in a relevant connected jurisdiction under s  104(3).65 Although a certificate attesting to the validity of the talaq had been obtained in Pakistan, a Pakistani local authority had subsequently cancelled it. On that basis, Dawe J held that the divorce was not ‘effected in accordance with’ the law of Pakistan and, as a consequence, there was at the time of the Australian proceedings a valid marriage.66 In contrast to recognition under s 104(3), for the recognition of a decree at common law it must, with two exceptions, actually have been made in the connected place. The exceptions are that the decree will be recognised in Australia if it is merely recognised in the place where the parties were domiciled or with which they had a real and substantial connection.67 14.22  Third, under s 104(5) of the Family Law Act, the decree can only be recognised at common law if it would not be recognised as valid on any statutory ground. The common law does not operate in cases where it overlaps with the statutory grounds. 14.23  Finally, s 104(5) also provides that any restrictions found in the statutory grounds of recognition cannot be used to read limitations into the effect of the common law rules. This is an important proviso, as in many respects the common law rules are more liberal than the statutory grounds of recognition.

Personal connections that justify recognition 14.24  For a decree to be recognised on a statutory ground or at common law, a party to the decree must have one of the required personal connections with the place where the decree was made or where it is recognised. For the statutory grounds, this connection must exist at the time the proceedings for separation, dissolution or annulment were commenced in the foreign place.68 The common law also tends to require this connection to have existed at the time the proceedings in the foreign place were commenced. For the statutory grounds also, where recognition is being sought on the basis of a connection between the applicant for the decree and the foreign place, a more intimate connection is required. It will be seen that the common law grounds of recognition often allow recognition where the applicant’s connection with the foreign place is more remote. In the absence of any of these statutory or common law connections with the place where the decree was made or recognised, the decree will not be recognised in Australia69 — unless it is a New Zealand  decree of annulment or of the validity of marriage that is registrable under the Trans-Tasman Proceedings Act 2010 (Cth).70 The connections specified by the statutory grounds and the common law rules are now considered.

65. 66. 67. 68. 69. 70.

See 14.29–14.31. At [12]. See 14.39–14.41. Family Law Act 1975 (Cth) s 104(1). Betts and Hampson [2017] FamCA 107. See 14.18.

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Presence 14.25  The mere presence of a party to the decree in the place where it was made is not a sufficient connection with the place for the decree to be recognised on a statutory ground. However, the effect of the common law rule in Travers v Holley71 is probably that a foreign decree of annulment will be recognised in Australia if, at the time the proceedings for annulment were commenced, either party was present in the foreign place.72

Ordinary residence 14.26  A foreign decree will be recognised under statute if, at the time proceedings were commenced, the respondent was ordinarily resident in the foreign place.73 14.27  A foreign decree will be recognised under statute in some cases where the applicant was ordinarily resident in the foreign place. There are two conditions to satisfy. First, the applicant must have been ordinarily resident in the foreign place at the time proceedings were commenced. Second, the applicant must have been ordinarily resident in the foreign place for at least one year immediately before the commencement of the proceedings or the foreign place was the last place where the parties had cohabited.74 But, once again, the rule in Travers v Holley75 probably has the effect that a foreign decree of annulment will be recognised at common law if, at the time proceedings were commenced, the applicant was ordinarily resident in the foreign place.76 This does not demand that the second condition required for recognition on the statutory ground be satisfied.

Domicile 14.28  A foreign decree of dissolution or annulment will be recognised under statute if, at the time proceedings were commenced, either the applicant or the respondent was domiciled in the foreign place.77 This is the same as the position at common law.78

Nationality 14.29  Nationality is a relevant connection with the foreign place for both the applicant and the respondent. This raises problems when the person is a national of a plurilegislative nation, but where decrees in matrimonial causes are made under the laws of the member states, provinces or countries in which there may be no more specific nationality. The Family Law Act resolves this by deeming a national of a plurilegislative nation to be a national of all of its parts.79 For example, a Québécois is deemed to be a British Columbia national and 71. 72. 73.

74. 75. 76. 77. 78. 79.

[1953] P 246. See 14.38. Family Law Act 1975 (Cth) s 104(3)(a); see, for example, In the Marriage of Miller and Caddy (1985) FLC 91-625; Marriage of Cain and Cain (1987) FLC 91-808; Chandra and Alhoub [2015] FamCA 77 at [24]; CPPIB Credit Investments Inc v Ren [2017] NSWSC 771 at [21]. Family Law Act 1975 (Cth) s 104(3)(b); cf Henry v Henry (1996) 185 CLR 571 at 585. [1953] P 246. See 14.38. Family Law Act 1975 (Cth) s 104(3)(c); see, for example, In the Marriage of Mustafa (1981) FLC 91-112. See Harvey v Farnie (1882) 8 App Cas 43; Salvesen v Administrator of Austrian Property [1927] AC 641. Family Law Act 1975 (Cth) s 104(2).

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14.32

a Scot is deemed to be an English national. In many cases, this rule will create a completely artificial connection with the relevant foreign place. It is not certain whether this extended definition of nationality applies when nationality becomes a relevant connection under the common law rules of recognition. 14.30  A foreign decree will be recognised under statute if, at the time proceedings were commenced, the respondent was a national of the foreign place.80 14.31  A foreign decree will be recognised under statute in some cases where the applicant was a national of the foreign place. Two conditions must be satisfied: • the applicant must have been a national of the foreign place at the time the proceedings were commenced; and • the applicant must have a more substantial physical connection with that foreign place. In respect of this more substantial physical connection, there are three alternatives. It is sufficient if the applicant had also been ordinarily resident in the foreign place at the time proceedings were commenced. Or, it is sufficient if the applicant had also been ordinarily resident in the foreign place for one continuous year falling, at least in part, within the two years before proceedings were commenced. Or, it is also sufficient if the applicant had been present in the foreign place — say, Ruritania — at the time proceedings were commenced and the last place where the parties cohabited had been another foreign place — Hentzau — and, at the time proceedings in Ruritania were commenced, the law of Hentzau did not provide for the separation, dissolution or annulment of marriages.81 But compliance with the technical conditions of this second requirement for a more substantial physical connection can probably be avoided, yet again, by the operation of the common law rule in Travers v Holley.82 This probably enables the recognition of a decree of separation, dissolution or annulment when, at the time proceedings were commenced, the applicant was merely a national of the foreign place.83 However, in this connection the extended definition of nationality outlined above may not be available.84

Real and substantial connection 14.32  Real and substantial connection emerged as a ground for recognition at common law in the House of Lords’ decision in Indyka v  Indyka.85 There, the wife applied in Czechoslovakia for a divorce, which became absolute in 1949. She was a Czechoslovak national, and lived in Czechoslovakia for three years before making the application. However, she had a domicile dependent on her husband’s, and that was English. The primary ground for the recognition of decrees at the time was still domicile, and on that basis the Czech decree would not be recognised in England. The House of Lords, nevertheless, did 80. 81. 82. 83. 84. 85.

Family Law Act 1975 (Cth) s 104(3)(d); see, for example, Marriage of Cain and Cain (1987) FLC 91-808; Taffa and Taffa [2009] FamCA 85. Family Law Act 1975 (Cth) s 104(3)(e)–(f). [1953] P 246. See 14.38. See 14.29. [1969] 1 AC 33.

377

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recognise the divorce. Lords Morris of Borth-y-Gest, Pearson and Pearce held that the decree would be recognised under the rule in Travers v Holley.86 Together with Lords Reid and Wilberforce, they also held that the decree should be recognised because, in effect, the applicant had a close connection with the place where it was made. Lord Wilberforce said:87 [I]t would be in accordance with [legal developments] … to recognise divorces given to wives by the courts of their residence whenever a real and substantial connection is shown between the petitioner and the country, or territory, exercising jurisdiction. I use these expressions so as to enable courts, who must decide each case, to consider both the length and quality of the residence and to take into account such other factors as nationality which may reinforce the connection.

Lords Morris and Pearson expressed the required connection in similar terms — the decree must be made in a place with which the applicant had a real and substantial connection.88 For Lord Pearce, the decree would be recognised in England because Czechoslovakia was the predominant place with regard to the parties,89 and for Lord Reid because it was the matrimonial home.90 Since Indyka, the principle has been extended to recognise decrees of dissolution made in a place with which the respondent had a real and substantial connection.91 It has also been extended to the recognition of decrees of annulment.92 The time at which a real and substantial connection must exist is the time when proceedings were commenced.93 The Indyka principle proved popular with courts striving to find some connection with the place where the decree was made, and greatly expanded the common law bases of recognition. However, the cost has been unpredictability as the principle cannot be applied with the certainty that the other rules of recognition can.94 It has been abolished in the United Kingdom. It is, nevertheless, still part of the common law of Australia.95 The Indyka principle is therefore available to support the recognition of a decree of separation, dissolution or annulment when it cannot be recognised on a statutory ground.

Reciprocal jurisdiction 14.33  The circumstances that enable a court in Australia to hear and determine proceedings for dissolution or annulment are deemed to allow a foreign court to exercise such a jurisdiction, and the resulting decree made by the foreign court can be recognised in Australia at common law. This rule can be illustrated by the case in which it originated, Travers v Holley.96 The case was decided when a decree would only be recognised at common law in England if made or recognised in the place where the parties were domiciled.

86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96.

See 14.33–14.38. [1969] 1 AC 33 at 105. At 77, 113. At 91. At 68. Mayfield v Mayfield [1969] P 119. Law v Gustin [1976] Fam 155. Alexander v Alexander (1969) 113 Sol Jnl 344. Cf 5.21. Marriage of Barriga (No 2) (1981) 7 Fam LR 909 at 916–17; Marriage of Dornom [1984] FLC 91-556. [1953] P 246.

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14.37

14.34  Travers v  Holley concerned the recognition in England of a divorce made in New South Wales. The husband deserted the wife, returning to England and acquiring a domicile there. As a consequence, the wife also acquired a domicile of dependence in England, although she remained in New South Wales. The Supreme Court of that state, however, made the decree on the basis of a statutory rule that gave it jurisdiction when an applicant wife had been deserted, but had lived in New South Wales for three years before the application was made. The New South Wales decree was recognised in England, despite there being no connection based on domicile, because the courts in England could also assume jurisdiction in proceedings for divorce on an application by a deserted wife who had been resident in England for three years beforehand. As Hodson LJ put it: ‘Where there is in substance reciprocity, 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’.97 14.35  From these beginnings, the rule has undergone further articulation. First of all, it also applies to annulments.98 Second, the foreign court need not have assumed jurisdiction on the same legal ground as the forum court could. The circumstances before the foreign court need only be such as would permit the forum court to exercise jurisdiction. In RobinsonScott v Robinson-Scott,99 a court in Zurich granted the wife a divorce, assuming jurisdiction on the ground of domicile (as the concept was understood in Switzerland) because under Swiss law she was taken to be domiciled in Zurich. The decree was recognised in England, even though under the law of England the wife was domiciled in England. The husband had deserted her, and she had lived in Zurich for at least three years before applying for the divorce. If such circumstances had arisen in England, a court in England could also have exercised jurisdiction in proceedings for dissolution.100 14.36  Third, in Indyka v Indyka a majority in the House of Lords, approving the rule in Travers v Holley, held that it was irrelevant that the forum court did not have jurisdiction to determine similar proceedings at the time the foreign court made the decree.101 The foreign decree will be recognised if the circumstances before the foreign court were such that, at the time recognition is sought in the forum, the forum court would be permitted to exercise jurisdiction. 14.37  A fourth and final point to emphasise is that the foreign decree is recognised on the basis that the foreign court is deemed to have a reciprocal jurisdiction to the forum court. In Marriage of Barriga (No 2),102 Baker J in the Family Court held that a Mexican decree of dissolution could not be recognised in Australia because, at the time the decree was made, the parties had not been separated for 12 months.103 This was plainly misunderstanding of the rule in Travers v Holley, because Baker J was assessing the circumstances before the court 97. 98. 99. 100. 101. 102. 103.

At 257. Corbett v Corbett [1957] 1 All ER 621; Merker v Merker [1963] P 283. [1958] P 71. See also G McG v DW (No 1) [2000] 1 ILRM 107. Indyka v Indyka [1969] 1 AC 33 at 75–6, 90–1, 110. (1981) 7 Fam LR 909. At 916–17.

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in Mexico that would give a court in Australia substantive grounds to grant a divorce.104 These are irrelevant; it is reciprocal jurisdiction that is conceded to the foreign court. 14.38  In all likelihood, the rule in Travers v  Holley is part of the common law of Australia.105 This has remarkable consequences for the recognition of foreign decrees. For example, there is jurisdiction in Australia to determine proceedings for dissolution when, on the date the application is filed, either party to the marriage is an Australian citizen.106 The rule in Travers v Holley therefore suggests that a decree of dissolution will be recognised in Australia if made in a place where the applicant was a citizen. The additional requirement of some period of ordinary residence imposed by the statutory ground for recognition on the basis of the applicant’s nationality can be ignored.107 Similarly, there is jurisdiction in Australia to determine proceedings for annulment when, on the date the application is filed, either party to the marriage is an Australian citizen, ordinarily resident in Australia, or present in Australia.108 Therefore, at common law, a foreign decree of annulment could be recognised when the applicant was a citizen of the foreign place, or ordinarily resident or merely present there at the time the application was filed.109 This is somewhat anomalous, as it again makes the more technical grounds of recognition redundant. However, these cannot be used to limit the effect of the common law rules, and the more liberal grounds of recognition following from the rule in Travers v  Holley would therefore seem to be available.110 It means that the ‘international jurisdiction’ recognised as giving a foreign court the right to render a decree enforceable in Australia is as extensive as the Australian jurisdiction in matrimonial causes. As has been noted, Australian jurisdiction is itself broad, and arguably even exorbitant111 and so, through Travers v Holley, it allows a similar broad power to foreign courts to make decrees that have effect in Australia.112

Recognition in a connected place 14.39  For a decree of dissolution or annulment to be recognised on a statutory ground, in addition to there being some personal connection between a party to the decree and a foreign place — Ruritania — it must have been ‘effected in accordance with the law’ of Ruritania. As has been seen, this means the decree merely needs to be recognised and effective in Ruritania. It need not have actually been made there.113 Therefore, if a decree is made in a second foreign place — Hentzau — and is also recognised in Ruritania where, for example, the respondent was a national, the decree should be recognised in Australia.114 104. Family Law Act 1975 (Cth) s 48. 105. Sheldon v Douglas (No 1) [1963] NSWR 129; Marriage of Barriga (No 2) (1981) 7 Fam LR 909; cf Fenton v Fenton [1957] VR 17. 106. Family Law Act 1975 (Cth) s 39(3)(a). 107. See 14.29–14.31. 108. Family Law Act 1975 (Cth) s 39(4). 109. See 14.25–14.31 and 14.30–14.32. 110. Family Law Act 1975 (Cth) s 104(5). 111. See 14.10. 112. Cf Keyes, above n 27, at 48–9. 113. See 14.21. 114. Family Law Act 1975 (Cth) s 104(3)(d).

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14.41

14.40  This is reinforced by s 104(8) of the Family Law Act, which deems a decree: … 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 … it would have been recognised as valid by the law of the first-mentioned jurisdiction.

However, in its express terms, s  104(8) only helps when the second place is ‘another overseas jurisdiction’. It does not help when the second place is Australia. So, it would not assist the recognition of, for example, a Jewish divorce made before Beth Din in Melbourne that is recognised under the law of Israel — even if the parties were domiciled in Israel at the time the proceedings before Beth Din were commenced. In this case, the place where the divorce was effected is not ‘another overseas jurisdiction’. However, the Jewish divorce might still be recognised in Australia on a statutory ground. Section 104(8) is expressed not to limit the operation of the statutory grounds of recognition. It can therefore be argued that the Jewish divorce in Melbourne is still ‘effected in accordance with the law’ of Israel and therefore, without resorting to the extension of s 104(8), is recognised in Australia on the basis of the parties’ Israeli domicile.115 The same principles apply when the connection with the foreign place — Ruritania — is based on some other statutory ground; for example, the respondent’s nationality or ordinary residence in Ruritania at the time proceedings in the second foreign place — Hentzau — were commenced. 14.41  These statutory provisions build on the common law principle of Armitage v  Attorney-General.116 There, Sir Gorell Barnes P held that a decree of divorce made in South Dakota would be recognised in England if it was recognised in New York, where the parties were domiciled. It was not stated whether New York — or any other place where the decree was recognised — had to be the place where the parties were domiciled at the time proceedings were commenced, or at the time the decree was made. The statutory grounds of recognition expressly recognise a decree made in, say, Hentzau and recognised in, say, Ruritania when, at the time proceedings were commenced in Hentzau, either party was domiciled in Ruritania.117 However, if the Armitage principle allows recognition of a decree made in Hentzau because it was recognised in the place where the parties were domiciled at the time the decree was made, then this is an additional ground of recognition still available in Australia at common law. In the second place, the Indyka principle has been similarly extended. Therefore, a decree made in Hentzau that is recognised in a place with which the parties had a real and substantial connection will be recognised in Australia at common law.118 This is, nevertheless, as far as the courts have been prepared to extend the principle of recognition in a connected place. In Mountbatten v Mountbatten,119 a decree of divorce was 115. Family Law Act 1975 (Cth) s 104(3)(c); Har-Shefi v Har-Shefi (No 2) [1953] P 220. However, in Daler and Ehan [2014] FamCA 741, Faulks DCJ questioned whether a divorce effected under Islamic law in Australia could be recognised under s 104(3) when a party was a Jordanian national. The divorce in question was not regarded as allowing remarriage under Jordanian law. Even if the divorce did allow remarriage under Jordanian law, Faulks DCJ considered (at [46]) that it would be ‘incongruous’ to recognise it in Australia. He found the question unnecessary to decide, but asked for parliamentary clarification: at [47]. 116. [1906] P 135. 117. Family Law Act 1975 (Cth) s 104(3)(c), (8). 118. Mather v Mahoney [1968] 3 All ER 223; Messina v Smith [1971] P 322. 119. [1959] P 43.

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made in Mexico and recognised in New York, where the wife was resident for more than three years. The parties were domiciled in England. The rule in Travers v Holley120 would have allowed a decree made in New York to be recognised in England. However, Davies J was not prepared to combine the Armitage principle and the rule in Travers v Holley to allow a decree merely recognised in New York to be recognised in England. This principle does not seem to have been modified by the Family Law Act. Mountbatten would be reversed if the rule in Travers v Holley and s 104(8) of the Family Law Act were combined. However, s 104(8) does not seem to apply to the common law rules of recognition, and Mountbatten would therefore appear to be good law in Australia.

Place where marriage was solemnised 14.42  Dicey stated the principle that a decree of annulment will be recognised if made in the place where the so-called marriage was solemnised. No other connection with that place was required. Dicey also cited no direct authority for the principle, although he could rely on a dictum of Lord Stowell121 and was able to ground it on the authority to grant annulments that English courts themselves would exercise.122 There is some judicial authority to support this, first given in Mitford v Mitford.123 In Corbett v Corbett, an annulment was recognised by explicit adoption of Dicey’s rule.124 Sir Jocelyn Simon P cast some doubt on this in Merker v Merker,125 and to some extent attributed the earlier decisions to the fact that the parties were also resident in the place where the decree was made. However, this misread the factual circumstances of Mitford, where the husband was not living in the place where the decree was made (and would have been regarded as an enemy alien), and overlooked the acceptance of Dicey’s rule in Corbett. The result in Merker is at least consistent with the rule. It may still be a basis for the recognition of a decree of annulment at common law. It would certainly have a sound policy rationale. Choice of law rules have long recognised, in different ways, the need for the marriage to be valid in the place where it was solemnised if the marriage is to be valid in the forum.126 Accordingly, it would be reasonable to expect that a conclusive judicial determination in the place of solemnisation that there is no marriage would be deserving of comparable respect.

Unrecognised foreign decrees 14.43  It is not possible to recognise a foreign decree of dissolution or annulment not made or, in most cases, not recognised in one of the connected places discussed above.127 However, even if a decree can be recognised in Australia, a court still might refuse to recognise it on the ground that a party to the marriage had been denied natural justice; 120. See 14.33–14.38. 121. Sinclair v Sinclair (1798) 1 Hag Con 294 at 297; 161 ER 557 at 558–9. 122. See, for example, A V Dicey, Digest of the Law of England with Reference to the Conflict of Laws, Sweet and Maxwell, London, 1896, p 394. 123. Mitford v Mitford [1923] P 130; Corbett v Corbett [1957] 1 All ER 621 at 623–4. 124. [1957] 1 All ER 621 at 623–4. 125. [1963] P 283 at 297. 126. See 13.24. 127. See 14.24–14.42.

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Separation, Dissolution and Annulment of Marriage

14.46

recognition would be contrary to public policy; or the decree does not comply with the law under which it was made. Of these, the first two are certainly available to refuse recognition of a decree that could otherwise be recognised on a statutory ground or at common law. But whether the third is available is a slightly more doubtful proposition.

Natural justice 14.44  It is expressly provided that a decree cannot be recognised on a statutory ground where, under the common law rules of private international law, recognition would be refused because a party to the marriage had been denied natural justice.128 Furthermore, as this rule intimates, a decree which could qualify for recognition at common law can also be refused recognition at common law because a party was denied natural justice. The Family Law Act undoubtedly preserves this bar to recognition.129 This concept of natural justice is purely procedural. It only demands that there be due notice of the proceedings, and that both parties be given a fair opportunity to present their cases.130 Obviously, this bar to recognition relates to decrees obtained through judicial or administrative proceedings. It is hard to see  how it could relate to separations, dissolutions or annulments effected by some other procedure, despite the fact that natural justice as understood by common law principle might often be lacking. Complaints that go to the merits of the case are, in questions of recognition, matters of public policy. 14.45  In most cases, a decree will not be recognised if either party to the marriage did not receive notice of the proceedings,131 or if a party to the marriage had no involvement whatsoever in the proceedings.132 This will almost always be the respondent, although in Kendall v  Kendall133 the applicant had no notice of the proceedings because she had been defrauded into signing papers for divorce that she thought related to the custody of her children. However, a court might still recognise a decree where the foreign court had dispensed with notice in circumstances where a court in Australia would also have dispensed with the need for service on the respondent.134 14.46  It is also likely that, even where notice of the proceedings has been given, the decree could be denied recognition because notice was not given in sufficient time to allow the respondent the opportunity to participate adequately in the proceedings. The rules of natural justice require that both parties be given an adequate opportunity to present a case to the court.135 This question can only be determined by assessing the whole context in which the proceedings took place. Accordingly, a party might be denied natural justice because the financial means to attend or engage legal representation in the

128. 129. 130. 131. 132. 133. 134. 135.

Family Law Act 1975 (Cth) s 104(4)(a). Family Law Act 1975 (Cth) s 104(5). Norman v Norman (No 3) (1969) 16 FLR 231 at 243. Rudd v Rudd [1924] P 72; Grissom v Grissom [1949] QWN 52; Betts and Hampson [2017] FamCA 107 at [6]. Basra and Ahmed [2016] FamCA 838 at [28]–[43]. [1977] Fam 208. Brown v Brown [1963] NSWR 1371. Joyce v Joyce [1979] Fam 93 at 111–12.

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foreign place were not available, or because foreign legal representatives failed to act in accordance with instructions.136

Public policy 14.47  Once again, it is expressly provided that a decree cannot be recognised on a statutory ground where to do so would manifestly be contrary to public policy.137 The common law also allows a court to refuse recognition to a decree (that it would otherwise recognise) on the ground that recognition would offend public policy, and this principle is also preserved by the Family Law Act.138 Of course, public policy is used here in the same way in which it is used to refuse the application of a foreign law or the recognition and enforcement of a foreign judgment.139 The concept is as poorly defined and unpredictable in considering the recognition of a decree for separation, dissolution or annulment as it is in these other contexts. However, there are two factors that relate peculiarly to decrees of dissolution and annulment that might also influence the question whether recognition is to be denied on public policy grounds. The first is that to deny recognition to a decree is to create a ‘limping marriage’, ended or invalid in the foreign place but subsisting or valid in Australia. This suggests that there should be even greater reluctance to invoke public policy when deciding whether to refuse recognition to a dissolution or annulment.140 The second — and competing — factor is that recognition can be based on tenuous links with a foreign place like, for example, presence or nationality, and public policy could be a useful restraint on the liberal rules of recognition available in Australia. The relevance and importance of this factor will vary from case to case. It cannot be as important when, for instance, the decree was made in the place where the parties were domiciled.141 Public policy has, nonetheless, been used more liberally to refuse recognition of a decree in Australia and England.142 14.48  The categories of public policy are not closed. In Gray v Formosa,143 the English Court of Appeal refused to recognise a Maltese annulment because it offended English notions of substantial justice. This idea is as vague as the concept of public policy itself, but examples might help to indicate the kinds of cases courts regard as offending the forum’s notions of justice. Therefore, the courts have denied recognition to a decree that apparently discriminates on the ground of religion;144 a decree obtained by putting the applicant under duress;145 and a decree obtained by fraud.146 In more extreme cases, recognition has been denied to a decree because the applicant went to the foreign place for the sole purpose of 136. 137. 138. 139. 140. 141. 142. 143. 144. 145. 146.

Newmarch v Newmarch [1978] Fam 79. Family Law Act 1975 (Cth) s 104(4)(b). Family Law Act 1975 (Cth) s 104(5). See 5.34–5.35, 5.67 and 8.57–8.69. Igra v Igra [1951] P 404 at 412; Hassan v Hassan [1978] 1 NZLR 385 at 392. For example, Gray v Formosa [1963] P 259. For example, Marriage of El Oueik (1977) 29 FLR 171; Vervaeke v Smith [1983] 1 AC 145. [1963] P 259 at 269–71. Gray v Formosa [1963] P 259; Lepre v Lepre [1965] P 52. Re Meyer [1971] P 298. Kendall v Kendall [1977] Fam 208.

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14.50

obtaining a divorce, and because the marriage was annulled on the ground it was a ‘sham’ entered purely for the purpose of obtaining British nationality.148 In the latter case, the decree was thought to have offended the public policy of English law that ‘sham’ marriages are valid. In Basra and Ahmed,149 an Islamic judge in Lebanon confirmed a divorce for the husband, but there was no evidence that the wife had any involvement in the process. In the Family Court, Watts J considered that recognition of the divorce in those conditions would be manifestly contrary to public policy,150 although the refusal to recognise the divorce was also justified on the basis that the wife had been denied natural justice.151 These cases naturally upset the normal rule-based approach to recognition, and do so unpredictably. The best approach is that public policy should only be used to deny recognition of a decree ‘with extreme reserve’.152 147

Failure to comply with the foreign law 14.49  As has been seen, in addition to there being some personal connection with a foreign place where the decree is made or recognised, the decree must be ‘effected in accordance with the law’ of that foreign place.153 This has led to suggestions that a court in Australia has some power to determine whether the foreign court that made (or recognised) the decree did so properly in accordance with its own law. If so, it can only be the most limited power. It probably does not allow the court in Australia to review whether the foreign court applied the foreign law correctly in holding that the marriage was dissolved or a nullity. If anything, it probably only allows the court in Australia to determine whether, under the foreign law, the foreign court had subject-matter jurisdiction in proceedings for dissolution or annulment.154 14.50  There is some doubt as to whether a court can refuse to recognise a decree — that could otherwise qualify for recognition at common law — on the ground that the foreign court did not apply the foreign law properly. The reason is the rule in Pemberton v Hughes155 in which the English Court of Appeal held that it would not investigate the ‘propriety’ of the proceedings in the foreign court.156 However, in Pemberton v Hughes, Lindley MR stated this principle on the assumption that the matter before the foreign court was one with which it was competent to deal.157 In fact there is ample, longstanding authority in England to the effect that the forum court can determine whether, under the law of the foreign place, the foreign court had jurisdiction over the subject matter in question.158 This principle has also 147. 148. 149. 150. 151. 152. 153. 154. 155. 156. 157. 158.

Marriage of El Oueik (1977) 29 FLR 171. Vervaeke v Smith [1983] 1 AC 145. [2016] FamCA 838. At [44]. At [42]–[43]. Vervaeke v Smith [1983] 1 AC 145 at 164. Family Law Act 1975 (Cth) s 104(3). Norman v Norman (No 3) (1969) 16 FLR 231 at 232. [1899] 1 Ch 781. At 790, 795, 796; Ainslie v Ainslie (1927) 39 CLR 381 at 393. At 790. Vanquelin v Bouard (1863) 15 CB (NS) 341 at 368; 143 ER 817 at 828; Castrique v Imrie (1870) LR 4 E&I 414 at 429.

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been recognised in cases involving the recognition of dissolutions and annulments.159 The stronger opinion is therefore that the common law of Australia would still permit a court to refuse recognition of a decree if, under the law of the relevant foreign place, the foreign court did not have power to dissolve or annul the marriage.

159. Bater v  Bater [1906] P 209 at 227; Salvesen v  Administrator of Austrian Property [1927] AC 641 at 655; Papadopoulos v Papadopoulos [1930] P 55 at 65.

386

Chapter 15 Parental Responsibility Introduction 15.1  Australian law relating to parental responsibility has undergone considerable modification over the last three decades. Most parenting matters are regulated by the Commonwealth, but the states and territories retain jurisdiction to deal with some important areas, including surrogacy, which are not addressed in detail in this chapter.1 In 1995, Pt VII of the Family Law Act  1975 (Cth) was substantially rewritten, spelling out in more detail the nature of parental responsibility and replacing the former orders of guardianship, custody and access with the more generic ‘parenting order’;2 Pt VII underwent further amendments in 2006. While these reforms significantly changed Australian internal family law, they did not affect the rules of private international law relevant to parental responsibility.3 A fundamental change occurred in 1987, with the implementation of the Hague Child Abduction Convention 1980, by the Family Law (Child Abduction Convention) Regulations 1986 (Cth). This Convention applies whenever a child is habitually resident in a contracting state immediately before being taken to or retained in another contracting state, in breach of rights of custody or access. It requires the child to be returned to the place of their habitual residence and for any dispute about care and control to be determined there, with limited exceptions.4 The Child Abduction Convention does not contain explicit rules of jurisdiction, recognition of foreign orders, or choice of law, but operates on the basis that parenting matters should be determined by the courts of the place where the child is habitually resident. The Child Abduction Convention is complemented by the Hague Convention on the Protection of Children 1996 (Child Protection Convention),5 implemented in Australia principally by amendments made directly to the Family Law Act in 2003.6 The provisions of that Act giving effect to the Convention take effect despite most

1. 2. 3.

4. 5.

6.

But see 15.74. Family Law Act 1975 (Cth) s 61D. Family Law Act  1975 (Cth) s  61D. Part VII includes provisions relating to the circumstances in which proceedings relating to a child can be brought in an Australian court; s 69E which was introduced in 1995 is identical to the former s 63B. Convention on the Civil Aspects of International Child Abduction Art 4, 25 October 1980, Hague, No 28 (entered into force 1 December 1983). Convention on the Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, 19  October  1996, Hague, No 34 (entered into force 1 January 2002). Family Law Act 1975 (Cth) ss 111CA–111D; Family Law (Child Protection Convention) Regulations 2003 (Cth).

387

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of the rest of the Family Law Act;7 that is, they prevail to the extent of any inconsistency. The abbreviation ‘Child Protection Convention’ is misleading; the Convention is not about the physical protection of children, but ‘covers just about everything that affects a child and almost every aspect of parental responsibility, with some exceptions’.8 The Child Protection Convention is a more orthodox private international law instrument than the Child Abduction Convention. It contains rules of jurisdiction, recognition of foreign orders and choice of law, which have significantly altered the Australian law.9 The Child Protection Convention reinforces the Child Abduction Convention’s principles requiring the return of children to their place of habitual residence by introducing rules of jurisdiction, the recognition of foreign orders, and choice of law for parenting matters that centre on the child’s habitual residence, with some exceptions. As at  November 2018, there are 99 contracting states to the Child Abduction Convention;10 and 49 contracting states to the Child Protection Convention.11 15.2  Part VII of the Family Law Act deals with all children, whether their parents are married or not. The federal parliament only has an express grant of power to create jurisdiction over the children of a marriage, and it has only been possible to include the jurisdiction over children born outside marriage because there has been a referral of powers relating to ex-nuptial children to the federal parliament from most of the states.12 However, there has been no referral of powers from Western Australia. This is effectively unnecessary, as Western Australia has its own Family Court, created by state legislation, and which exercises the federal jurisdiction of the Family Court of Australia alongside its state jurisdiction over children. It can therefore deal with nuptial and ex-nuptial children, without the need for a referral of power to the Commonwealth and without violating the principles of Re  Wakim; Ex parte McNally.13 Therefore, Pt VII as a whole applies in New  South  Wales, Queensland, South  Australia, Tasmania, Victoria and the territories.14 It is still open for the whole of Pt VII to apply in Western Australia if there is an appropriate referral of powers, or if the state parliament adopts the Part.15 In the meantime, Pt VII has a more limited operation in Western Australia — its provisions are applicable in that state only to children of a marriage and parents who are parties to

7. 8. 9.

10. 11. 12.

13. 14. 15.

Family Law Act 1975 (Cth) s 111CB(1). The exceptions are ss 69ZK and 111B and the Family Law (Child Abduction Convention) Regulations made pursuant to s 111B. M Nicholls, ‘Australia and the 1996 Hague Child Protection Convention’ (2013) 3 Fam L Rev 123 at 123. See N Lowe and M Nicholls, The 1996 Hague Convention on the Protection of Children, Jordan Publishing, 2012. In 2013, the Full Court of the Family Court of Australia noted that there was, at that time, ‘virtually no experience in this country, or indeed to the best of our knowledge, in any country, with the operation of the Child Protection Convention’: Cape & Cape (2013) 50 Fam LR 1; [2013] FamCAFC 114 at [73]. See 15.29–15.59. See 15.8–15.17, 15.23, 15.62–15.66, 15.72. Family Law Amendment Act  1991 (Cth); 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). (1999) 198 CLR 511; [1999] HCA 27; see also 2.28–2.30. Family Law Act 1975 (Cth) ss 69ZE(1), 69ZG. Family Law Act 1975 (Cth) s 69ZE(2).

388

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15.5

a marriage. The rules relating to ex-nuptial children in Western Australia are set out in the Family Court Act 1997 (WA). Importantly, however, the provisions of Div 13 of Pt VII of the federal Family Law Act, which deal with the enforcement of foreign orders relating to children by registration, have an unlimited operation in Western Australia.17 The Child Abduction and Child Protection Conventions also apply throughout the country, including in Western Australia. 16

15.3  In light of the above, the issues concerning multi-state parenting matters that are considered in this chapter are: (1) jurisdiction; (2) the Child Abduction Convention; (3) choice of law; and (4) the recognition and enforcement of foreign parenting orders.

Jurisdiction Jurisdictional competence Australia generally 15.4  Proceedings for a parenting order in relation to a child may only be brought by: (1) either or both of the child’s parents; (2) the child; (3) a grandparent of the child; or (4) any person concerned with the care, welfare or development of the child.18 Section 69E(1) of the Family Law Act stipulates the circumstances in which proceedings may be brought under the Act in relation to a child. These are if, on the day proceedings are commenced: • the child is present in Australia; • the child is an Australian citizen or is ordinarily resident in Australia; • a parent of the child is an Australian citizen, is ordinarily resident in Australia or is present in Australia; • a party to the proceedings is an Australian citizen, is ordinarily resident in Australia or is present in Australia; or • it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or common law rules of private international law, for the court to exercise jurisdiction in the proceedings. As explained below, s 69E(1) is subject to s 111CD of the Family Law Act.19 15.5  It is likely that the presence and ‘ordinary residence’ in Australia required by s 69E(1) are defined in the same way as they are at common law. The ordinary residence of a child would therefore be the place of its parents’ matrimonial home if they are living together, or of the custodial parent’s home if the parents are living apart. ‘Australian citizen’, naturally, has the meaning it is given under the Australian Citizenship Act 2007 (Cth).20

16. 17. 18. 19. 20.

Family Law Act 1975 (Cth) s 69ZH. Family Law Act 1975 (Cth) s 69ZH(4). Family Law Act 1975 (Cth) s 65C. See 15.13. See 10.35–10.48.

389

15.6

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Western Australia 15.6  For proceedings commenced in Western Australia, these provisions only apply if the child is a child of a marriage and the parents were parties to the marriage.21 Proceedings relating to any child in that state may be brought by:22 (a) either or both of the child’s parents; (b) the child; (ba) a grandparent of the child; (c) any other person concerned with the care, welfare or development of the child; (d) any guardian, whether appointed under [the Family Court] Act or by will or otherwise; or (e) any person acting in a fiduciary capacity who is, under any will, gift, settlement, or otherwise by law, possessed of any fund for the maintenance or education of the child, or any fund a portion of which may be applied for the maintenance or education of the child.

Jurisdiction to deal with Child Abduction Convention matters 15.7  Australia is one of few countries in which applications for return of the child under the Convention are brought by the central authorities, rather than the left-behind parent.23 The rules of jurisdiction in s  69E(1) probably apply to proceedings brought under the Child Abduction Convention. Where these cases involve a child who has been removed to or retained in Australia, the child will, in accordance with s  69E(1)(a), inevitably be present in the country at the time proceedings are commenced. This provision does not apply where an ex-nuptial child is removed to Western Australia, but the regulations probably still provide an independent ground for an application to be made in that state.24 Of course, where these cases involve a removal of a child from Australia, some other connection referred to in s 69E(1) must be relied on. It is quite possible that such a case might qualify as one in which jurisdiction could be exercised in accordance with an arrangement in force between Australia and an overseas jurisdiction, in the terms of s 69E(1)(e). For any proceedings relating to a child commenced in a court of a federal territory, jurisdiction only exists to determine the case if one of the parties is ordinarily resident in the territory.25

Jurisdiction under the Child Protection Convention 15.8  For matters within its scope, the Child Protection Convention deals with the allocation of jurisdiction between the ‘authorities’ (including courts) of convention countries in matters involving children. The Convention is given effect by Pt XIIIAA, Div 4 of the Family Law Act and the Family Law (Child Protection Convention) Regulations, which are largely but not completely identical to the Convention. The main jurisdictional provision is

21. 22. 23. 24. 25.

Family Law Act 1975 (Cth) s 69ZH(2). Family Court Act 1997 (WA) s 88. RCB v The Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47 at [22]. Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 14. Family Law Act 1975 (Cth) s 69K.

390

Parental Responsibility



15.11

s 111CD, which is generally regarded as restricting or qualifying the jurisdiction conferred by s 69E.26 Child Protection Convention countries 15.9  The Child Protection Convention’s rules of jurisdiction apply to children who are habitually resident in a convention country, and to some children who are present in a convention country. A convention country is any country for which the Child Protection Convention has entered into force.27 The Regulations list only the Czech Republic, Ecuador, Estonia, Monaco, Morocco and Slovakia as convention countries28 but the other countries that have now entered the Convention into force are also included. As at  November 2018, these are Albania, Armenia, Austria, Belgium, Bulgaria, Croatia, Cuba, Cyprus, Denmark, Dominican Republic, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hungary, Ireland, Italy, Latvia, Lesotho, Lithuania, Luxembourg, Malta, Montenegro, the Netherlands, Norway, Paraguay, Poland, Portugal, Romania, the Russian Federation, Serbia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, the United Kingdom and Uruguay. Central authorities 15.10  As for the Child Abduction Convention, convention countries to the Child Protection Convention must nominate a central authority to exercise a number of administrative responsibilities under the Convention and to cooperate with other countries’ central authorities.29 Australia has a Commonwealth Central Authority and a central authority in each of the states and internal territories.30 The roles of the central authorities include providing information to other authorities on their country’s (or state’s) laws and services relating to the protection of children, providing information and facilitating communication that helps to identify which authority is best placed to assess the best interests of the child, helping to secure agreed solutions for the protection of the child, and providing assistance in discovering where the child might be.31 Children 15.11  A ‘child’, for the purposes of the Child Protection Convention, is a person from the moment of birth until aged 18 years.32

26.

27. 28. 29. 30. 31. 32.

Bunyon & Lewis (No 3) [2013] FamCA 888 at [80]; State Central Authority & Spring-Ernst (No 2) [2013] FamCA 906 at  [54]; Merrick & Wellington [2014] FamCA 514 at  [12]; Lao & Yeng [2018] FamCA 560 at [20], [27]. See also Alfarsi & Elhage [2016] FamCA 428. Cf Duckworth & Jamison (2014) 51 Fam LR 471; [2014] FamCA 308 at  [73] and [79], suggesting that the rules in s  111CD ‘are intended to regulate the exercise of jurisdiction’ rather than being about the conferral of jurisdiction. Family Law Act 1975 (Cth) s 111CA(1). This Convention has been signed but not ratified by Argentina, Canada and the United States of America. Family Law (Child Protection Convention) Regulations 2003 (Cth) reg 3(3), Sch 1. Child Protection Convention 1996 Arts 29–39. Family Law (Child Protection Convention) Regulations 2003 (Cth) regs 5–9. Child Protection Convention 1996 Arts 8–9, 30–31. Child Protection Convention 1996 Art 2.

391

15.12

Private International Law in Australia

Habitual residence 15.12  The term ‘habitual residence’ was explained in Chapter 10. The leading authority on the habitual residence of a child, LK v  Director-General,33 is a case decided under the Child Abduction Convention. Similar considerations to those identified in LK may apply in the context of the Child Protection Convention, although it is essential to bear in mind the different contexts in which habitual residence is being considered in these two Conventions. The same facts may be relevant to determining habitual residence under both Conventions, but they may be given different weight depending upon which Convention is relevant.34 For the purposes of the Child Protection Convention, the relevant time for assessing habitual residence is at the time the court is considering the issue of jurisdiction.35 Jurisdiction for personal protection measures 15.13  The reforms to the Family Law Act which were made to bring the Child Protection Convention into effect have narrowed the circumstances in which Australian courts may take jurisdiction in proceedings for a parenting order. The Convention operates on the general principle that the courts of convention countries where the child is habitually resident should deal with measures for the protection of children and their property, with a number of exceptions.36 Section s 111CB of the Family Law Act provides that Pt XIIIAA Div  4 has effect despite most of the rest of the Act, including s  69E; consequently, the jurisdictional provisions in this Division limit the extent of jurisdiction conferred by s 69E. The Act contains provisions both in relation to personal protection and property protection measures;37 the latter are not considered in this chapter. 15.14  Section  111CD exhaustively stipulates the circumstances in which a court ‘may exercise jurisdiction for a Commonwealth personal protection measure’.38 The Family Law Act refers to measures directed at ‘the protection of the person of a child’ as those measures are defined in the Convention,39 which includes orders relating to parental responsibility (and its delegation); rights of custody (including residence and access); and guardianship, curatorship and analogous institutions.40 This includes parenting orders.41

33. 34. 35. 36. 37. 38.

39. 40. 41.

LK v Director-General, Dept of Community Services (2009) 237 CLR 582; [2009] HCA 9. See further 15.31. Bunyon & Lewis (No 3) [2013] FamCA 888 at [179]–[180], [188]–[189]. Bunyon & Lewis (No 3) [2013] FamCA 888 at [185]. The Convention enables the courts of contracting states to exercise jurisdiction over children who are habitually resident in non-contracting states in exceptional circumstances: Art 6. Property protection measures are dealt with in Family Law Act 1975 (Cth) Pt XIIIAA, Pt 4, Div 4, Subdiv C. ‘Commonwealth personal protection measure’ is defined in s  111CA to mean ‘a measure (within the meaning of the Child Protection Convention) under this Act that is directed to the protection of the person of the child. The Convention, which is found in Sch 1 of the Family Law Act, defines measures ‘directed to the protection of the person … of the child’ to include ‘the attribution, exercise, termination or restriction of parental responsibility …; rights of custody, including rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence, as well as rights of access …; and guardianship’: Art 3. See further 15.62. Family Law Act 1975 (Cth) s 111CA(1). Child Protection Convention 1996 Art 3. Exclusions from the Convention are set out in Art 4. See also 15.62. Bunyon & Lewis (No 3) [2013] FamCA 888 at [76].

392



Parental Responsibility

15.15

An Australian court may exercise jurisdiction in relation to these matters only if the following conditions are met:42 • The child is present and habitually resident in Australia. • The child is present in Australia and habitually resident in another convention country, so long as at least one of the following conditions is also satisfied: – The child’s protection requires taking the measure as a matter of urgency. – The measure taken (that is, the order made) is provisional and limited in its territorial effect to Australia. – The child is a refugee. – A competent authority in the place of the child’s habitual residence has requested or invited the Australian court to assume jurisdiction, or has agreed to the Australian court assuming jurisdiction. – The Australian court is exercising jurisdiction in divorce or annulment proceedings relating to the child’s parents. There are other conditions, discussed below, when jurisdiction in relation to the child is annexed to the parents’ divorce or annulment proceedings.43 • The child is present in another convention country, and at least one of the following conditions was also satisfied: – The child was habitually resident in Australia. – The child was wrongfully removed from or retained outside Australia and (because the child was habitually resident in Australia before the removal or retention) the Australian court keeps jurisdiction under the Child Protection Convention.44 – A competent authority in the place of the child’s habitual residence has requested or invited the Australian court to assume jurisdiction, or has agreed to the Australian court assuming jurisdiction. – The Australian court is exercising jurisdiction in divorce or annulment proceedings relating to the child’s parents. Again, there are other conditions that must be satisfied when jurisdiction in relation to the child is annexed to the parents’ divorce or annulment proceedings.45 • The child is present in Australia and is a refugee. The Act also provides that the Australian courts ‘may exercise jurisdiction’ when the child is present in a non-convention country but habitually resident in Australia, or the child is present in Australia but habitually resident in a non-convention country, but only if one of the grounds of jurisdiction in s 69E(1)(b)–(e) applies.46 15.15  As noted above, if the child is present in Australia but habitually resident in another convention country, or vice versa, the Australian court might still have jurisdiction where the proceedings relating to the protection of the child are in some sense annexed to the 42. 43. 44. 45. 46.

Family Law Act 1975 (Cth) s 111CD. See 15.15. Child Protection Convention 1996 Art 7. See 15.15. See 15.4.

393

15.15

Private International Law in Australia

parent’s divorce or annulment proceedings. There are five other conditions, all of which must be satisfied, if the court is to exercise jurisdiction in relation to the child:47 • at least one of the parents was habitually resident in Australia when the proceedings began; • at least one of the parents has parental responsibility for the child; • the court’s jurisdiction in relation to the child is accepted by the parents and each other person who has parental responsibility for the child;48 • the exercise of the court’s jurisdiction is in the best interests of the child; and • the divorce or annulment proceedings have not been finalised. Exceptions to jurisdiction 15.16  Under the Child Protection Convention there will be cases that satisfy the conditions of jurisdiction set out above,49 but for which the Australian court cannot exercise jurisdiction. These are genuine exceptions to the Convention’s rules of jurisdiction.50 The first is where the child has been removed to, or retained in, Australia from a convention country. The authorities in that convention country may ‘retain jurisdiction’ under the Convention because the child was habitually resident there before the removal or retention, and has not acquired habitual residence anywhere else. In that case, the Australian court cannot exercise jurisdiction unless it is a case of urgency.51 This exception reinforces the centrality of the place of habitual residence to the exercise of jurisdiction under the Child Protection Convention although, in Australia, it appears that rights under the Child Abduction Convention are to be preferred if there is any conflict between the two. If a child was not returned to its place of habitual residence, the Child Protection Convention would tend to suggest that an Australian court would still have to defer to the authorities of the place of habitual residence in protection proceedings relating to the child. As will be seen,52 the Child Abduction Convention generally requires a child to be returned to its place of habitual residence but, in limited cases, will excuse a removal of a child from that country. This exception under the Child Protection Convention, therefore, was thought to make it harder for a person to argue an excuse under the Child Abduction Convention where the child was removed from a Child Protection convention country, because under the Protection Convention the Australian court would have to decline jurisdiction.53 However, the Family Law Act provides that the provisions that implement the Child Protection Convention are made subject to the Regulations that give effect to the Child Abduction

47. 48. 49. 50. 51. 52. 53.

Family Law Act 1975 (Cth) s 111CD(3). Callum & Favre [2016] FamCA 487; Zegna & Zegna [2015] Fam CA 345; Duckworth v Jamison (2014) 51 Fam LR 471; [2014] FamCA 308. See 15.14. Family Law Act 1975 (Cth) s 111CD(4). Child Protection Convention 1996 Art 7; Family Law Act 1975 (Cth) s 111CE. See Breen & Breen [2014] FamCA 1030 at [82]–[85]. See 15.29–15.56. G Monahan, ‘Facilitating International Cooperation in Parenting Disputes’ (2003) 22 University of Tasmania Law Review 94 at 102.

394

Parental Responsibility



15.18

Convention. That being so, if a person has rights under the Child Abduction Convention to allege the lawfulness of the removal of a child from a Child Protection Convention country, it would seem that those rights prevail over this exception to the jurisdiction of Australian courts under the Child Protection Convention. 54

15.17  The second exception arises in cases where the Australian court could normally exercise jurisdiction for a protection measure in relation to the child, but a protection measure has also been sought in another convention country. In this case, the Australian court cannot exercise jurisdiction if at least one of the following conditions applies for the other convention country:55 • the child is habitually resident in the convention country; • the child is present in the convention country and is a refugee; • a competent authority in the place of the child’s habitual residence has requested or invited the other convention country authority to assume jurisdiction, or has agreed to the convention country’s authority assuming jurisdiction; • the convention country authority is exercising jurisdiction in divorce or annulment proceedings relating to the child’s parents. Again, there are other conditions that must be satisfied in this case, and these conditions are parallel to those that are required when an Australian court is able to exercise jurisdiction in relation to the child because of the parents’ divorce or annulment proceedings;56 or • the child was wrongfully removed from or retained outside the convention country and (because the child was habitually resident there before the removal or retention) the convention country keeps jurisdiction under the Child Protection Convention.57

Common law rules of jurisdiction 15.18  The common law rules of jurisdiction are preserved under s  69E(1)(e) of the Family Law Act, but are only likely to be helpful to an applicant if they are broader than the statutory grounds of jurisdiction. This is most unlikely. Indeed, the common law rules of jurisdiction parallel the statutory rules in many respects. These originate in the Court of Chancery’s equitable jurisdiction over infants in the kingdom, and as a result the mere physical presence of the child in the forum became a sufficient basis of jurisdiction.58 The common law might also recognise the child’s Australian citizenship as a ground on which jurisdiction can be exercised.59 Serious doubts have been expressed about this,60 but the availability of citizenship as a ground of jurisdiction in s 69E(1)(b) makes it unnecessary to resolve the point. Probably the most accepted ground of jurisdiction at common law is

54. 55. 56. 57. 58. 59. 60.

Family Law Act 1975 (Cth) s 111CB(2). Family Law Act 1975 (Cth) s 111CF. See 15.15. Child Protection Convention 1996 Art 7. Re D, an Infant [1943] Ch 568; A v B [1979] NSWLR 57. Re Willoughby, an Infant (1885) 30 ChD 324; Kelly v Panayiotou [1980] 1 NSWLR 15; Moses v Stephenson (1981) 10 NTR 32. A v B [1979] 1 NSWLR 57; McM v C (1980) 5 Fam LR 650; Ex parte TMW [1981] Qd R 436.

395

15.18

Private International Law in Australia

the ordinary residence of the child in the forum.61 For cases involving children, this has developed a more specific meaning: that is, where the parents live together it is the place where they have the matrimonial home.62 If the parents live apart, the ordinary residence of the child is the place where the custodial parent is resident.63

Courts64 15.19  The courts that may exercise jurisdiction under Pt VII are the Family Court of Australia, the Federal Circuit Court, the Family Court of Western Australia and the Supreme Court of the Northern Territory.65 The state and territory courts of summary jurisdiction — Local and Magistrates Courts — may also exercise jurisdiction in most matters arising under Pt VII.66 However, if there are contested proceedings relating to a parenting order, a court of summary jurisdiction must transfer them to a superior court unless all parties consent to the inferior court determining the case.67 The same courts — superior and inferior — have jurisdiction in applications brought under the Child Abduction Convention and the Child Protection Convention.68 However, there is no provision for transfer from one to the other. Therefore, proceedings brought in any state except Western Australia will normally be commenced in the Family Court of Australia or the Federal Circuit Court. In the Australian Capital Territory, proceedings are brought in the Family Court or the Federal Circuit Court or, if one of the parties is ordinarily resident in the territory, the territory Magistrates Court.69 In the Northern Territory, proceedings may be commenced in the Family Court or Federal Circuit Court or, if one of the parties is ordinarily resident in the territory, the Supreme Court or the territory Magistrates Court.70 Naturally, in Western Australia, proceedings must be brought in the state Family Court or, for proceedings under Pt VII or the Child Abduction Convention, the Federal Circuit Court or the state Magistrates Court. Proceedings relating to an ex-nuptial child in Western Australia must be brought in the state Family Court.71 These proceedings can be instituted in the state Magistrates Court but, if the merits and suitability of the jurisdiction of the court are contested, they must be transferred to the state Family Court.72 15.20  Under the cross-vesting scheme, the jurisdiction exercisable by the Family Court of Australia under Pt VII or the Child Abduction Convention is invested in the Supreme Court of any state or territory. The legislation provided also that the jurisdiction of the Family Court of Western Australia in state matters was invested in the Federal Court, 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72.

Re P (GE), an Infant [1965] Ch 568; McM v C (1980) 5 Fam LR 650; Corin v Corin (1971) 7 SR (WA) 124. Holden v Holden [1969] VR 334. Glasson v Scott (1973) 1 ALR 370. D Kovacs,‘Proceedings in Relation to Children in the Post Cross-Vesting Era’ (2000) 28 Federal Law Review 105. Family Law Act 1975 (Cth) s 69H. Family Law Act 1975 (Cth) s 69J. Family Law Act 1975 (Cth) s 69N. Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 2(1), 14; Family Law Act  1975 (Cth) s 39. Family Law Act 1975 (Cth) s 69K. Family Law Act 1975 (Cth) s 69K. Family Court Act 1997 (WA) s 36. Family Court Act 1997 (WA) s 43.

396

15.23

Parental Responsibility



the Family Court of Australia and state and territory Supreme Courts. However, since Re Wakim; Ex parte McNally74 these state matters cannot be heard in, or transferred to, any of the federal courts. 73

15.21  The Hague Conference on Private International Law has encouraged convention countries formally to nominate judges for the Hague International Network of Judges. Australia is one of the countries to do so.75 A Network judge is to facilitate communication in Child Abduction Convention and Child Protection Convention matters, including communication with central and state authorities,76 with other judges in the country, and with judges in other convention countries. In relation to communications with other convention countries, Network judges may cooperate with each other in relation to proceedings concerning the child in the two countries. Direct communication between Network judges can cover issues such as the scheduling of hearings, identifying what protective measures can be taken, determining whether undertakings can be accepted, determining the possibility of mirror orders, identifying whether there are findings of domestic violence, and determining whether a transfer of jurisdiction is needed.77 Such cooperation nevertheless takes place only with the consent of the parties.78

Exercise of jurisdiction 15.22  In parenting proceedings, the applicable rules to determine whether an Australian court will exercise its jurisdiction, stay or dismiss proceedings, are quite different to those applicable in other family, civil and commercial matters. First, for matters within its scope, the Child Protection Convention contains provisions enabling the ‘transfer’ of jurisdiction between the courts of convention countries. Second, matters involving children generally require the court to give primacy to the best interests of the child; in such a case, the normal principle of forum non conveniens is not applicable.

Transfer of jurisdiction under the Child Protection Convention 15.23  A court may request the Commonwealth Central Authority to ask a competent authority in certain other convention countries79 to take protection measures for the child.80 The court may also suspend proceedings and invite the parties to make such a request of the competent authority in the other convention country.81 This can be done if the Australian 73. 74. 75.

76. 77. 78. 79.

80. 81.

See 2.28–2.30. (1999) 198 CLR 511; [1999] HCA 27. V Bennett, ‘Improving the Operation of the 1980 Hague Convention: National and International Networking and New Approaches to Relocation’, 6th World Congress on Family Law and Children’s Rights, Sydney, 16–20 March 2013. See 15.34–15.36. Bennett, above n 75, para 43. Bennett, above n 75, paras 68–70. The other convention countries whose authorities can be requested are those where the child is a national, has property, or has ‘a substantial connection’; and those whose authorities are seised of an application for divorce or annulment of the parents’ marriage, or legal separation: Child Protection Convention 1996 Art 8(2). Family Law Act 1975 (Cth) s 111CH(1). Child Protection Convention 1996 Art 8.

397

15.23

Private International Law in Australia

court considers that the authorities of the other convention country are better placed to assess the best interests of the child.82 If the other convention country’s authority does this, the Australian court is precluded from exercising jurisdiction while the foreign authority continues to exercise its jurisdiction.83 Otherwise, it would appear that an Australian court, which has jurisdiction to deal with a Commonwealth protection measure, is not able to decline to exercise that jurisdiction. 15.24  The Child Protection Convention also enables an Australian court, if it considers that it is better placed to assess the best interests of the child, to request the Commonwealth Central Authority to ask a competent authority of the country in which the child is habitually resident that the Australian court be authorised to take protection measures for the child.84

Staying or dismissing proceedings 15.25  If neither the Child Abduction Convention nor the Child Protection Convention applies, determining whether parenting proceedings should be stayed or dismissed is done quite differently to other civil disputes, including other family proceedings. The paramount consideration a court must take into account in deciding whether to make a parenting order in relation to a child is the best interests of that child.85 This means a court is only able to refuse to decide the ultimate question of the care and responsibility for the child if a refusal to do so is in the child’s best interests. This principle does not apply to cases arising under the Child Abduction Convention or the Child Protection Convention. In the Child Abduction Convention, the return of the child to the place of habitual residence is regarded as a more important consideration (and as presumptively being in the child’s best interests).86 The Child Protection Convention contains limited provisions enabling transfer of jurisdiction, as described above. The following principles apply in all other cases, including child abduction cases where the child is taken to, retained in, or removed from a non-convention country. 15.26  The leading case is ZP v PS,87 in which the child was born in Greece in 1987, and registered as an Australian citizen the following year. His mother was an Australian citizen of Greek origin, as was probably his father. The parents separated in 1989. A temporary custody order in relation to the child was registered in a Greek court, under which the mother was given custody and the father access to the child. The child was raised in Greece until 1993, when the mother took him to Australia. In September of that year, the Family Court granted interim custody to the mother, but a Greek court granted it to the father. The father therefore opposed the wife being granted permanent custody by the Family Court, and applied for orders to have the child returned to Greece. These were granted by Mushin J at first instance, on the ground that an Australian court was a forum non conveniens. This was confirmed on appeal to the Full Court, where Nicholson CJ also thought the correct principle to apply was that of forum non conveniens. Kay and Graham JJ thought that 82. 83. 84. 85. 86. 87.

Family Law Act 1975 (Cth) s 111CH(3). Family Law Act 1975 (Cth) s 111CH(5). Family Law Act 1975 (Cth) s 111CG(2); Bunyon & Lewis (No 3) [2013] FamCA 888 at [246]. Family Law Act 1975 (Cth) ss 65AA, 60CA. Marriage of van Rensburg and Paquay (1993) 16 Fam LR 680 at 683. (1994) 122 ALR 1.

398



Parental Responsibility

15.28

Mushin J’s decision was correct whether it was one applying the doctrine of forum non conveniens or the best interests of the child as the paramount consideration for any issue concerning the child — including jurisdiction. 15.27  The majority of the High Court allowed an appeal. The judges unanimously agreed that the one factor to consider in exercising jurisdiction over a child was its best interests. The doctrine of forum non conveniens, which looks to the litigants’ interests instead, was therefore irrelevant. However, there were cases where the child’s best interests were served by having the question of custody determined in a foreign court. This was especially so when the child is normally resident in the foreign country.88 Brennan and Dawson JJ emphasised that, in such a case, the court was not declining its jurisdiction; it was exercising its jurisdiction in the interests of the child by ordering the child’s return to a foreign place.89 The majority, comprising Brennan, Dawson, Deane and Gaudron JJ, held that by applying the wrong principle and failing to consider whether the mother would return to Greece if the child were ordered to do so, the Full Court had erred. The Child Abduction Convention did not apply in this case because the child had been removed from Greece before the Convention entered into force in Greece. Deane and Gaudron JJ nevertheless thought that, in determining the best interests of the child, a court could take into account, as a matter of prima facie importance, the policy of discouraging international child abduction.90 For Brennan and Dawson JJ, this could only be relevant if other considerations relating to the child’s welfare were evenly balanced, and this would appear to be the more orthodox position.91 The Full Court of the Family Court has since repeatedly held that the best interests of the child determine applications for a stay or dismissal of proceedings where the Child Abduction Convention is not applicable.92 15.28  In other cases, the courts have not been prepared to decide the merits of the case where the child was neither present nor resident in Australia.93 However, in Marriage of Taylor94 the Full Court of the Family Court held that this should only be in cases where there would be no possibility of enforcing an order made in Australia in the foreign place and the foreign court was a better forum for determining the child’s best interests.95 It might also be that a court will not decide the merits of the case where the child lived in a foreign place for a lengthy period,96 or where the child was removed to Australia by a parent but in breach of a custody order to which the parent had consented.97

88. 89. 90. 91. 92.

93. 94. 95. 96. 97.

At 6, 17–18, 22–4. At 18. At 22–3. At 19–20. EJK v  TSL (2006) 35 Fam LR 559; [2006] FamCA 730; Karim v  Khalid (2007) 38 Fam LR 300; [2007] FamCA 1287; Pascarl & Oxley (edited) (2013) 49 Fam LR 364; [2013] FamCAFC 47; Zanda & Zanda [2014] FamCAFC 173; Acquaah-Akuffo & Abioye [2016] FamCAFC 194; Kuan & Toh [2016] FamCAFC 115; Sahrawi & Hadrami [2018] FamCAFC 170. Szintay v Szintay (1954) 73 WN (NSW) 330. (1988) 12 Fam LR 423. See also Marriage of Soares (1989) 13 Fam LR 163. Marriage of Chang (1992) 15 Fam LR 629. Marriage of van Rensburg and Paquay (1993) 16 Fam LR 680.

399

15.29

Private International Law in Australia

The application of the Child Abduction Convention 15.29  On the assumption that the court has jurisdiction over a child, the first question to determine is whether the Child Abduction Convention applies to the case. The Convention was developed by the Hague Conference on Private International Law and was concluded in 1980. Its aims are to discourage international child abduction (normally by one of the parents after the breakdown of marriage); to make it clear to abductors that, if one of their objectives in removing the child to a new country was to find a more favourable forum for determining parenting issues, this attempt will normally fail; and to provide an effective means of promptly returning the child to the place of its habitual residence.98 Australia became a party to the Convention in 1983, and implemented it by an amendment to the Family Law Act, and the adoption of Regulations, in the same year.99 While other countries have implemented the Convention directly by making its terms law, child abduction matters in Australia that fall within the scope of the Convention are determined according to the Regulations, rather than the Convention.100 For this reason, decisions of the courts of other countries which apply the Convention directly should be considered with caution. At times, nevertheless, account might be taken of the fact that the Regulations were made to enable Australia to give effect to its obligations under the Convention.101 The Regulations have been upheld as a valid exercise of federal power.102 15.30  Two conditions must be satisfied before the Child Abduction Convention applies. First, the child must be under 16 years of age. Second, the child must have been habitually resident in a convention country immediately before any breach of custody or access rights.103

Habitual residence 15.31  The concept of ‘habitual residence’ was discussed in Chapter 10.104 It is not defined in the Child Abduction Convention, although a number of points can be made about the concept on the basis of its natural meaning and role. In LK v  Director-General, Dept of Community Services,105 the High Court held that it is likely that a child will have only one place of habitual residence.106 This is determined by focusing on the child’s past experience (as well as its parents’ intentions). Habitual residence demands ‘an appreciable period of time and a settled intention’ and, provided the purpose for remaining in the place was settled, the period of residence need not be long.107 In LK, it was two months. In LK, the DP v Commonwealth Central Authority (2001) 206 CLR 401 at 439; [2001] HCA 39. Family Law Act 1975 (Cth) s 111B; Family Law (Child Abduction Convention) Regulations 1986 (Cth). DP v Commonwealth Central Authority (2001) 206 CLR 401; [2001] HCA 39 at [25]. At 411–12, 438–9. De L v NSW Dept of Community Services (1996) 187 CLR 640 at 650, 679–82. Child Abduction Convention 1980 Art 4. See 10.62–10.70. (2009) 237 CLR 582; [2009] HCA 9; see also 10.67–10.68. At 593–4. Cf Secretary, Department of Family and Community Services v  Padwa (2016) 55 Fam LR 261; [2016] FamCAFC 57 at [62]–[63]. 107. Cooper and Casey (1995) 18 Fam LR 433 at 435; see also Friedrich v Friedrich 982 F 2d 1396 (1992); Re J (a minor) (abduction) [1990] 2 AC 562 at 578; Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993 at 995. 98. 99. 100. 101. 102. 103. 104. 105. 106.

400



Parental Responsibility

15.33

court acknowledged that it was possible for someone not to have a habitual residence at any given time, but stated that the purpose of the Regulations ‘may tend in favour of finding that a child does have a place of habitual residence’.108 It is possible even for an illegal immigrant to be habitually resident in a place,109 as the question is one to be determined purely by reference to physical contacts. Under the Convention, the reason for using habitual residence as the key personal connection is, in the ordinary case, to have the child returned to ‘familiar surroundings’ instead of suffering ‘the disruption of an international move’.110

Child Abduction Convention countries 15.32  The child must have been habitually resident in a convention country, which means any country in which the Child Abduction Convention is entered into force at the time of the child being removed or retained.111 The Regulations list Argentina, Austria, the Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Canada, Chile, China (but only in relation to Hong Kong SAR and Macau  SAR), Colombia, Costa Rica, Croatia, Cyprus, the Czech Republic, Denmark, Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Guatemala, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Former Yugoslav Republic of Macedonia, Malta, Mauritius, Mexico, Moldova, Monaco, the Netherlands, New  Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Thailand, Trinidad and Tobago, Turkey, Turkmenistan, the United Kingdom, the United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe as countries where the Convention is in force. As at  November 2018, a number of countries for which the Convention has entered into force are not listed in the Regulations: Albania, Andorra, Armenia, Bolivia, Bulgaria, Cuba, the Dominican Republic, Gabon, Guatemala, Guinea, Iraq, Jamaica, Japan, Kazakhstan, Lesotho, Lithuania, Montenegro, Morocco, Nicaragua, Pakistan, the Philippines, Russia, San Marino, Seychelles, Singapore, South Korea, Thailand, Tunisia, Ukraine and Zambia. Those countries are treated as convention countries for the purposes of Australian law.112 This does not apply to a country that has merely signed the Convention, without further ratification, acceptance or approval.113

General approach 15.33  If a child is habitually resident in a convention country, the method for dealing with the child differs radically from that under Pt VII of the Family Law Act. The Child Abduction Convention is expressly intended to enhance the international recognition of rights of custody and access arising in the place of the child’s habitual residence prior to 108. (2009) 237 CLR 582 at 594; [2009] HCA 9. See also Commonwealth Central Authority & Cavanaugh [2015] FamCAFC 233. 109. Dept of Health and Community Services v Casse (1995) 19 Fam LR 474 at 484; Mark v Mark [2006] 1 AC 98; [2005] UKHL 42 at [33]–[36]. 110. DP v Commonwealth Central Authority (2001) 206 CLR 401 at 416; [2001] HCA 39. 111. Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 10, Sch 2. 112. Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 10(b). 113. Marriage of Hooft van Huysduynen (No 1) [1990] FLC 92-119.

401

15.33

Private International Law in Australia

their removal or retention, and to ensure that in most cases, a child wrongfully removed or retained from that place is promptly returned.114 In most cases, therefore, the court’s obligation to act in the best interests of the child is displaced as a consideration bearing on who is to have care or responsibility for the child.115 That is a matter ordinarily to be determined in the place of habitual residence. If, however, there are orders made about the child when it lived overseas but, subsequently, the child’s place of habitual residence changes to Australia, the Convention requires that the decision about the interests of the child be made in Australia.116

Central authorities 15.34  To assist the speedy return of unlawfully abducted children, the Child Abduction Convention creates a network of central authorities in convention countries. These authorities have the duties of tracing an unlawfully removed child and securing its return. They can also provide each other with general information about the laws of their countries that might be needed in an application under the Convention.117 In Australia, the Commonwealth Central Authority is the federal Attorney-General’s Department. Each state and territory also has a central authority, with all of the powers and functions of the Commonwealth Central Authority.118 It is open to a person who claims that, in breach of his or her rights of custody, a child has been unlawfully abducted from Australia to another convention country to apply to an Australian Central Authority for the child’s return. If it is in accordance with the Convention, that claim is forwarded through the Commonwealth Central Authority to the central authority in the country where the child is held.119 Likewise, a person who claims that a child has been unlawfully abducted to Australia can apply to the Commonwealth Central Authority for its return.120 The hope in both cases is that the prompt return of the child can be arranged administratively. There are similar procedures for having central authorities assist in securing a person’s rights of access in a convention country.121 15.35  Nothing in the Child Abduction Convention denies a person the right to apply to a court for the return of a child, either under Pt VII of the Family Law Act or some other law122 and the Family Law (Child Abduction Convention) Regulations stipulate that they do not prevent a court ‘from making an order at any time under Part VII of the Act or any other law in force in Australia for the return of a child’.123 114. Child Abduction Convention 1980 Art 1; see Dept of Communities, Child Safety and Disability Services and Garning (Discharge Application) [2012] FamCA 839. 115. Re A (a minor) [1988] 1 FLR 365 at 369. 116. Gumbrell v Jones [2001] NZFLR 593. 117. Child Abduction Convention 1980 Art 7; Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 5. 118. Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 8–9. 119. Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 11. 120. Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 13. 121. Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 24–5. 122. Child Abduction Convention 1980 Art 18; Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 6. 123. Family Law (Child Protection Convention) Regulations 2003 (Cth) reg 6(2).

402

Parental Responsibility



15.39

15.36  Express provision is made for a central authority to apply to a court for an order that a child be returned to a convention country or, if necessary, for orders authorising a search for the child or temporarily placing the child in institutional care.124 A central authority can apply to a court for orders relating to the return of a child who was abducted from Australia,125 and for an order that is needed to secure the effective exercise of rights of access to a child who is in Australia.126 15.37  It becomes necessary to consider what principles and rules determine whether a child is or is not to be returned to a convention country, in light of the Commonwealth Central Authority’s obligation to secure the return of a child if the application is in accordance with the requirements of the Convention and, when invoked, a court’s power to make orders to that effect. The Child Abduction Convention does not require the return of a child merely because it is found in Australia and the case falls within the scope of the Convention. The return of the child is only mandatory if there has been a wrongful removal or retention of a child from a convention country.127 Further, the onus rests on the person applying for the return of the child to make out the unlawful removal or retention. If the evidence is finely balanced, it would appear that the case for return is not established.128 There are also some circumstances in which removal or retention is not regarded as wrongful. In those cases, the Convention is not applicable and the return of the child, though possible, is not mandatory. Further, the Convention makes different provision for helping to secure rights of access.

Wrongful removal or retention 15.38  Article 3 of the Child Abduction Convention provides: The removal or retention of a child is to be considered 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 removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

These criteria are set out, rephrased and restructured, in reg 16(1A). This principle is relatively straightforward. It does, however, incorporate two concepts that require further explanation: (1) removal or retention; and (2) rights of custody.

Removal or retention 15.39  To show either a wrongful removal or retention, a child must be outside the place of its habitual residence. ‘Removal’ and ‘retention’ are mutually exclusive concepts. 124. 125. 126. 127.

Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 14(1). Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 14(2). Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 25. Child Abduction Convention 1980 Art 12; Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16. 128. Re F (a minor) [1992] 1 Fam LR 548 at 553; Re F (a minor) [1995] Fam 224 at 232; Re P [2004] 2 Fam LR 1057 at 1066–7.

403

15.39

Private International Law in Australia

In Re H (Abduction: Custody Rights),129 Lord Brandon of Oakbrook held that removal occurs when a child is taken out of the place of its habitual residence, whereas retention occurs when a child who has, for a limited period, been outside the place of habitual residence with the consent of the left-behind parent is not, on the expiration of the period, returned. That being so, a removal or retention is an event occurring on a specific occasion.130 It is therefore what constitutes a particular act of retention that has been more the subject of litigation. In Dept of Communities & Clementine, O’Reilly J held that:131 In summary, a retention can occur: (a) when the child comes to another country for a limited period of time, at the end of that limited period, without further demand; … or (b) when the child leaves the country of its habitual place of residence to go to another country temporarily, when a demand for the return of that child is made.

It has been held that a retention might occur when a party initiates legal proceedings designed to prevent the return of the child.132 It is also possible that a retention might occur when, even in a period in which the parties have agreed that a child can remain outside the place of habitual residence, a party indicates that the child will not be returned on the expiration of that period.133 It is not the removal or retention of the child from the parent that constitutes a breach of Art 3. The Convention is limited to cases of international abduction, so it is the removal or retention of the child from its place of habitual residence that creates the wrong.134

Rights of custody 15.40  The rights of custody that the removal or retention of the child violates can arise by operation of law, by reason of a judicial or administrative decision or by reason of an enforceable agreement.135 They include any rights relating to the care of the child and, in particular, any rights to determine its place of residence.136 A right merely of access is not a right of custody for the purposes of the Convention. However, if a right of access includes a right to veto any plan on the part of the custodial parent to change the child’s residence, this will be considered a right of custody for the purposes of the Convention.137 Similarly, a person whose only right in relation to the care of the child is that the child is not to be removed from the place without that person’s consent has a right of custody within the meaning of the Convention.138 A general right of guardianship recognised by law without

129. 130. 131. 132. 133. 134. 135.

[1991] 2 AC 476 at 500. See also Kilgour v Kilgour 1987 SLT 568 at 572. [2010] FamCA 746 at [58]. Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993. Re S (minors) (abduction: wrongful retention) [1994] Fam 70 at 78–81. Re H (abduction: custody rights) [1991] 2 AC 476 at 500–1. Child Abduction Convention 1980 Art 3; Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 4(3); DP v Commonwealth Central Authority (2001) 206 CLR 401 at 412; [2001] HCA 39. 136. Child Abduction Convention 1980 Art 5(a); Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 4(2). 137. MW v Director-General, Dept of Community Services (2008) 244 ALR 205 at 224–5; [2008] HCA 12. 138. C v C (Minor Abduction: Rights of Custody Abroad) [1989] 2 All ER 465; Marriage of Thompson (1990) 14 Fam LR 542 at 547; see also Soysa & Commissioner of Police [2011] FamCAFC 39 at [16].

404



Parental Responsibility

15.40

adjudication is a right of custody for the purposes of the Child Abduction Convention.139 If any such rights are held jointly, then each and every person who holds them has rights of custody.140 Where these rights are alleged to arise under the law of another convention country, the normal rules for proving foreign law can be bypassed as it is open to a court to take judicial notice of a law in force in a convention country.141 The judicial task may be further simplified in that a central authority will be party to any proceedings under the Convention and, before the proceedings come to court, may be able to obtain information about the law of the other convention country from that country’s central authority.142 As rights of custody can arise by operation of law, it follows that they can be exercised by anybody invested with those rights by the law of a convention country. This might be a convention country court,143 an orphanage,144 or a court exercising a wardship jurisdiction over the child.145 The United Kingdom courts have recognised that inchoate rights may constitute rights of custody under the Convention.146 These are the rights ‘of those who are carrying out duties and enjoying privileges of a custodial or parental character which, though not yet formally recognised or granted by law, a court would nevertheless be likely to uphold in the interests of the child concerned’.147 The Supreme Court confirmed this in Re K (A Child) (Reunite International Child Abduction Centre Intervening),148 where grandparents in Lithuania had had primary care of a child and made most decisions about his care. The mother had even given them specific authorisations about his care and, in effect, had delegated that care to them. This arrangement was monitored by the Lithuanian Children’s Rights Division. The child’s removal to Northern Ireland was therefore held to be in breach of custody rights recognised under the Child Abduction Convention.149 In  MW  v  Director-General, Dept of Community Services,150 Gummow, Heydon and Crennan  JJ held that, where rights of custody were vested in the Family Court of New Zealand, the father who sought the return of the child to New Zealand had no relevant rights to demand the child’s return;151 and in Re K (A Child), Baroness Hale noted that there is, ‘despite the length and erudition of the judgments’ in MW, ‘no mention of the concept of inchoate rights’.152

139. DP v Commonwealth Central Authority (2001) 206 CLR 401 at 412; [2001] HCA 39; LK v Director-General, Dept of Community Services (2009) 237 CLR 582 at 588–9; [2009] HCA 9; Marriage of Murray and Tam; Director of Family Services (ACT) (Intervener) (1993) 16 Fam LR 982. 140. H and H [1985] FLC 91-640 at 80, 168. 141. Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 29(5)(a). 142. Child Abduction Convention 1980 Art 7(e). 143. Brooke v Director General, Dept of Community Services (NSW) (2002) 29 Fam LR 121 at 127; [2002] FamCA 258; Re H [2000] 2 All ER 1. 144. Re N [2000] 2 FCR 512. 145. MW v Director-General, Dept of Community Services (2008) 244 ALR 205 at 226; [2008] HCA 12. 146. Australian authority is divided on whether inchoate rights are recognised under the Child Abduction Regulations: Director-General, Department of Communities, Child Safety and Disability Services & Ibbott (No 2) [2015] Fam CA 698 at [120]; cf State Central Authority and LJK (2004) FLC 93-200. 147. Re B (A Minor) (Abduction) [1994] 2 FLR 249 at 261. 148. [2014] AC 1401; [2014] UKSC 29. 149. At [61]–[62]. 150. MW v Director-General, Dept of Community Services (2008) 244 ALR 205; [2008] HCA 12. 151. At 226. 152. [2014] AC 1401; [2014] UKSC 29 at [32].

405

15.41

Private International Law in Australia

Return 15.41  On an application made within one year of a wrongful removal or retention, the court must order the return of the child to the place of habitual residence,153 subject to any exception to return being established.154 This is one reason why it is important to identify the event constituting the removal or retention of the child.

Settlement into new environment 15.42  In an application made more than one year after a wrongful retention or removal, the court must order the return of the child unless it is satisfied that the child has settled into its new environment.155 The onus of proving that the child has been settled into the new environment in Australia rests on the party who is resisting the child’s return to the place of habitual residence.156 The nature of this requirement that the child be settled into the new environment before an order for return can be refused was considered in Graziano v Daniels.157 There, the Full Court of the Family Court held that the relevant ‘environment’ encompassed the child’s geographical location, home, school, friends and opportunities, as well as the child’s own wishes and its relationship to its caregiver. The mere length of time the child has spent in the place must, naturally, be disregarded. In all of these cases, the court is to act expeditiously.158 Indeed, if a court does not determine an application within six weeks of its having been made, the central authority can demand that reasons be given to explain the delay.159 Of course, the possibility can arise that an abductor might conceal a child for at least a year and then resist a return to the place of habitual residence on the ground that the child has settled into its new environment. English courts originally took the view that if there had been concealment the child could not be taken to have settled into the new environment.160 In Cannon v Cannon161 the English Court of Appeal held that concealment is only one issue that had to be taken into account in deciding whether the child had settled into the new environment.162 15.43  If it is established that the child is settled into her or his new environment, and the application for return is made more than one year after the child was removed or retained, the court lacks discretion under the Regulations to order the return of the child.163

153. Child Abduction Convention 1980 Art 12; Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(1). 154. Child Abduction Convention 1980 Art 13; Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(1). 155. Child Abduction Convention 1980 Art 12; Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(2). 156. Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(2)(c). 157. (1991) 14 Fam LR 697. 158. Child Abduction Convention 1980 Art 11; Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 15(2). 159. Child Abduction Convention 1980 Art 11; Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 15(4); MacMillan v MacMillan 1989 SLT 350 at 354–5. 160. Re L [1999] 1 Fam LR 433 at 441; Re H [2000] 2 Fam LR 51 at 55. 161. [2005] 1 Fam LR 169. 162. A Dickey, ‘Three Matters on the Child Abduction Convention’ (2005) 79 Australian Law Journal 209 at 210. 163. Secretary, New South Wales Department of Family and Community Services and Magoulas [2018] FamCAFC 165.

406



Parental Responsibility

15.45

15.44  The Regulations stipulate that in addition to making an order for return, the court may also ‘make any other order that the court considers to be appropriate to give effect to the Convention’, and may include in any such orders ‘a condition that the court considers to be appropriate to give effect to the Convention’.164 This includes ‘any condition attached to a return order that is designed to advance the interests of the child’;165 although the court should not impose unnecessary conditions, or conditions that undermine the Convention.166 Nor, in Australia, can a court enforce undertakings given to a court in a convention country in proceedings brought under the Child Abduction Convention.167

Excusable removal or retention 15.45  There are a number of grounds on which a court may refuse to order the return of an abducted child. These therefore allow the removal or retention of the child to be excused, and are:168 • the rights of custody were not being exercised at the time of the removal or retention; • there was consent to or acquiescence in the removal or retention; • there is a ‘grave risk’ that returning the child would expose him or her to physical or psychological harm, or otherwise place him or her in an intolerable situation; • the child objects to the return; • return would be contrary to the protection of human rights and fundamental freedoms; and • the application for return was made more than one year after a wrongful removal or retention and the child has settled into its new environment. The final ground was discussed above169 and need not be reconsidered. Each of the others is considered in turn, but in all cases the onus of making out ‘the excuse’ is borne by the person who is resisting the order for return.170 There is no presumption that the Regulations setting out the grounds for excusing removal or retention should be construed narrowly171 or, for that matter, broadly. They are to be interpreted according to their ‘terms’.172 So, if one of these grounds is made out according to its own terms, the court has a complete discretion

164. Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 15(1). See De L v Director-General, New South Wales Dept of Community Services (1996) 187 CLR 640 at 662. 165. Arthur v Secretary, Dept of Family & Community Services [2017] FamCAFC 111 at [71]. 166. Wolford & Attorney-General’s Department (Cth) [2014] FamCAFC 197 at [75]. That includes where the left-behind parent cannot afford to comply with the conditions: Arthur v  Secretary, Dept of Family & Community Services [2017] FamCAFC 111 at [91]–[92]. 167. Marriage of McOwan (1993) 17 Fam LR 377. 168. Child Abduction Convention 1980 Art 13; Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(3). 169. See 15.42. 170. DP v  Commonwealth Central Authority (2001) 206 CLR 401 at  416; [2001] HCA 39; Graziano v  Daniels (1991) 14 Fam LR 697 at 703. 171. DP v Commonwealth Central Authority (2001) 206 CLR 401 at 407 (Gleeson CJ), 417 (Gaudron, Gummow and Hayne JJ); [2001] HCA 39. However, cf Kirby J at 438–40. 172. At 407.

407

15.45

Private International Law in Australia

to allow the child to remain in Australia. There is no additional requirement of substance or of having a strong case to excuse the removal or retention.173

Rights of custody not being exercised 15.46  The court can refuse to order the return of the child if the applicant was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and these rights would not have been exercised if the child had not been so removed or retained.174 The critical time at which the applicant must have and be exercising the rights of custody is the time when the removal or retention takes place. Therefore, this excuse is not made out merely because, at some time after the removal or retention, the applicant loses his or her rights of custody and, therefore, the capacity actually to exercise them.175

Consent or acquiescence 15.47  The order for the return of the child can be refused if the applicant had consented to, or subsequently acquiesced in, the child being removed to, or retained in, Australia.176 Whether the case is one of consent or acquiescence is simply a matter of timing. Consent is given before the removal or retention, and acquiescence occurs after.177 In either case, it  would not appear necessary that the consenting or acquiescing party have knowledge of his or her rights under the Child Abduction Convention. To the extent that the person’s knowledge is relevant, it is only to show that they knew of the act constituting removal or retention and that the act was, in some sense, wrong. This consent or acquiescence may be expressed or inferred from conduct in circumstances in which different conduct might be expected if there were no consent or acquiescence.178 However, to establish consent or acquiescence there must be clear and unequivocal words or conduct that can properly be interpreted as such.179 The court should therefore be reluctant to find, for example, acquiescence in the removal of a child when the parties are confused or in a state of emotional turmoil.180 Accordingly, acquiescence has been established where a father wrote to an abducting mother that he was ‘not going to fight’ for the children or ‘let them become casualties’,181 and by a father’s 10 months of inaction after learning of the mother’s refusal to return the child.182 The execution of an agreement that the child should live in the new country can amount to acquiescence, but not when the relationship between the parties is unsettled and, soon after, the applicant changes his or her mind.183 Once an event is held 173. Richards v Director-General, Dept of Child Safety [2007] FamCA 65 at [20]. 174. Child Abduction Convention 1980 Art 13(a); Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(3)(a)(i). 175. Marriage of Murray and Tam; Director, Family Services (ACT) (Intervener) (1993) 16 Fam LR 982 at 993; cf Marriage of Barraclough (1987) 11 Fam LR 773. 176. Child Abduction Convention 1980 Art 13(a); Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(3)(a)(ii). 177. Re A (Minors) (Abduction: Acquiescence) [1992] Fam 106 at 123. 178. At 123; Re AZ (a Minor) (Abduction: Acquiescence) [1993] 1 FLR 682 at 686–7. 179. Re R (Child Abduction) (1995) 1 FLR 716 at 727. 180. Re A (Minors) (Abduction: Acquiescence) [1992] Fam 106. 181. At 121. 182. W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211. 183. Dept of Health and Community Services & Casse (1995) 19 Fam LR 474 at 479–80.

408



Parental Responsibility

15.49

to constitute consent or acquiescence, the approval of the abduction cannot be undone. However, it is only by objectively considering all relevant circumstances — including those that took place after the alleged consent or acquiescence occurred — that it is possible to judge whether the act unequivocally amounts to an approval of the abduction.

Grave risk of harm or intolerable situations 15.48  The court may refuse to order the return of the child if there is a grave risk that the return of the child to the country in which it habitually resided immediately before the removal or retention would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation.184 Indeed, if this ground is made out, it would appear that in most cases the only proper course for a court to take, despite it having a formal discretion still to allow a return, is to refuse to order the return of the child.185 This ground was given authoritative consideration by the High  Court in two cases heard together: DP v Commonwealth Central Authority186 and JLM v Director-General NSW Dept of Community Services.187 Gaudron, Gummow and Hayne JJ noted that there was no ambiguity in the Regulations, and that, where this particular exception was raised, some prediction of what may happen to the child and some consideration of what was in its interests was inevitable.188 The taking of a child from one parent without the agreement of another means it is ‘well-nigh inevitable’ that the child ‘will suffer disruption, uncertainty and anxiety’, and that this will recur, and may well be magnified, if the child is returned to the place of habitual residence.189 On the one hand, more is needed under the Regulations if the risk of exposure to physical or psychological harm is to be ‘grave’. There must be clear and compelling evidence of a grave risk, and bare assertion of fears for the child may well not be sufficient. On the other hand, it is not necessary to predict that harm will actually occur, but that the return of the child will expose the child to harm.190 To this, Kirby J added that, as the required risk had to be ‘grave’, even if there was a ‘real’ or ‘significant’ risk in the place of habitual residence, that would not be sufficient to prevent the return of the child.191 However, Kirby J’s view was more influenced by the assumption that the Convention was designed to secure the prompt return of the child.192 His judgment in DP and JLM also dissents in the outcome, and Kirby J’s approach to the meaning of the Regulations may be slightly narrower than that taken in the joint judgment. 15.49  In DP v Commonwealth Central Authority, the mother had abducted the child from Greece, where the child was agreed to be habitually resident. The child was diagnosed with autism. The mother resisted return on the basis that adequate medical care was not available for the child in Nigrita, the village in Greece in which the parents had lived, and where the 184. Child Abduction Convention 1980 Art 13(b); Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(3)(b). 185. Re D (a Child) [2005] UKHL 51 at [51]–[55]; McDonald v Director-General, Dept of Community Services (2006) 36 Fam LR 468; [2006] FamCA 1400 at [224]–[225]. 186 (2001) 206 CLR 401; [2001] HCA 39. 187. (2001) 22(4) Leg Rep SL4a. 188. At 417–18. 189. At 418. 190. At 418. 191. At 442. 192. At 438.

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child had been brought up. As a result, it was argued, the return of the child to that part of Greece was likely to expose it to harm. No evidence was given by the Commonwealth Central Authority, which supported the return of the child to Greece, on the facilities that would be available elsewhere in Greece for the support of the child. At trial, and on appeal to the Full Court of the Family Court, it was held that the child should be returned. The Convention required the return to be to Greece, and not just to the Nigrita area, and there was no evidence that the facilities required to support the child were not available anywhere in Greece. In the High Court, this decision was held to be erroneous. Gaudron, Gummow and Hayne JJ, with whom Callinan J concurred, held that the question of the facilities available elsewhere in Greece was one of fact, and had to be supported by evidence. Once the mother had established what consequences, given the inadequate services in the Nigrita area, a return would have for the child, it could not be assumed that the central authority could not challenge that argument without producing further evidence to support its claims about the adequacy of resources in other parts of Greece.193 A finding of ‘a grave risk’ was open, and so the question was remitted to the Full Court for reconsideration. 15.50  A similar conclusion was reached in the companion case, JLM v Director-General NSW Dept of Community Services. There, the child, who was habitually resident in Mexico, had been brought by the parents to Australia, the mother’s home country. The father returned to Mexico in January 1999 but, soon after, the mother told him that she and the child would stay in Australia. Orders were sought for the child’s return to Mexico, but expert evidence established that there was a very high risk that the mother, who suffered a major depressive disorder, would commit suicide if the child were handed to the father. There was also evidence that there was a high risk of suicide if the mother, who had no financial means, was unable to contest custody proceedings in Mexico. Further, evidence showed that there would be a grave risk of psychological harm to the child if the mother were to commit suicide. The trial judge had accepted that this risk existed, and refused to order the return. The Full Court of the Family Court, however, ordered the return of the child, concluding that the evidence only showed there was a risk of suicide if a Mexican court awarded the father custody. The return of the child itself was not shown to create this risk. In the High Court, Gaudron, Gummow and Hayne JJ, with whom Callinan J concurred, again held there was evidence of a grave risk of harm to the child, and also remitted this matter to the Full Court for reconsideration. There was no challenge to the evidence that, if the child were returned to Mexico, there was a real risk of suicide, and the Full Court had erred in ruling that the trial judge had no evidence on which to base his order. 15.51  Similar issues arose in Director-General, Dept of Families v  RSP.194 In that case, Warnick J raised concerns that the ‘disingenuous adoption of stances’ — such as the threat of suicide — could be raised by the abducting parent to resist the return of the child. However, his Honour held that the proper response to cases like that was close scrutiny of the evidence, not to disregard it. In RSP, the risk that the mother would commit suicide if the child were returned to the United States was shown by clear and unchallenged medical evidence of a history of depression, and ‘dramatic and traumatic health difficulties’. 193. At 423–4. 194. (2003) 30 Fam LR 566; [2003] FamCA 623.

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There had been other threats of suicide. The Full Court of the Family Court agreed with Warnick J’s reasons, and his decision not to return the child on the basis of expert psychiatric evidence that the child would suffer devastating long-term psychological harm if the mother committed suicide. This excuse was also successfully invoked in the Supreme Court of the United Kingdom in Re S (A Child) (Abduction: Rights of Custody).196 The child was habitually resident in Australia, but the mother, an Australian citizen of English origin, removed him to England to live with her parents. She objected to the father’s application for a return to Australia. Evidence established that the father had physically abused the mother, who had suffered anxiety and depression when with him in Australia but, after having left him and when in England, displayed no symptoms of those conditions. The psychiatrist’s opinion was that there would be a significant and severe negative impact on her psychiatric and psychological condition if she was to return to him. The court concluded that this would create an intolerable position for the child, and therefore agreed with the trial judge’s decision not to return the child to Australia. In Re  S, the Supreme Court also explained its earlier decision in Re E (Children) (Abduction: Custody Appeal)197 where the mother’s anxieties were not based on any objective risk but were, nevertheless, so severe that if the children had been returned the situation would have been intolerable for them. The Supreme Court in Re S confirmed its decision in Re E, recognising ‘the possibility that a respondent’s merely subjective perception of risks could, as a matter of logic, found the defence’.198 It also confirmed that, given that under the Child Abduction Convention the principal question of the interests of the child is normally to be determined in the place of habitual residence, an in-depth investigation of the issues relating to the impact of a parent’s mental health was not strictly necessary at that point of the proceedings.199 195

15.52  The Child Abduction Convention’s principles of prompt return presumptively require the child to be returned to a war zone, or a place of heightened physical risk. However, American authority has established that this can be sufficient to prove a grave risk of harm, preventing return.200 The Full Court of the Family Court also accepted this when an Israeli child’s return to Israel was resisted on the basis of an Australian Government Travel Advice warning that Australians should defer all travel to Israel because of a very high risk of terrorist attacks in population centres, and warning not to travel to the West Bank or the Gaza Strip. The child’s father’s home was some distance from those places, but the court concluded that the travel advice was clear and compelling evidence that a return would give rise to a grave risk of exposure to physical harm.201 It was not necessary, to satisfy the Regulations, that the child be exposed to a level of risk over and above the general risk of harm to which any other person in Israel was exposed.202 The conclusion would appear to be consistent with the terms of the Regulations, but would probably suspend any application of the Convention’s principles of return to a war zone or place of heightened terrorist activity. 195. 196. 197. 198. 199. 200. 201. 202.

At 576–7. [2012] 2 AC 257. [2012] 1 AC 144. [2012] 2 AC 257 at 269–70. At 271–2. See also MacMillan v MacMillan 1989 SLT 350. Friedrich v Friedrich 78 F 2d 1060 (1996). Genish-Grant v Director-General, Dept of Community Services (2002) 29 Fam LR 51. At 56.

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15.53  This ground for excusing a retention or removal would appear not to be made out where it is shown that the child would suffer harm merely by reason of an abducting parent’s refusal to return to the place of habitual residence with the child.203 The evidence of risk again needs to be ‘of a substantial or weighty kind’. General and non-specific evidence of violence to an abducting mother, and even the child, has been held insufficient to warrant the child remaining in Australia.204

Child’s objection 15.54  The court may refuse to order the return of the child if the child objects to being returned and has attained an age and degree of maturity at  which it is appropriate to take account of the child’s views.205 Three issues arise here. The first is the nature of the child’s objection. The Convention does not qualify the strength of the child’s objection, but the Regulations require that the objection ‘shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes’.206 It need only be an objection to an immediate return, not an objection to return in any circumstance whatsoever.207 The second issue is what the child is objecting to. The particular objection must be one of a return to the place of habitual residence. Objecting to a return to the particular parent or guardian making the application is not a sufficient ground for excusing removal or retention on this ground.208 The third issue is the age at which a child can be considered mature enough for its objection to be taken into account. This will naturally be an individual assessment for the trial judge to make. In Marriage of Bassi,209 an objection led to the refusal of an order for the return of a child aged 13, in Re F of a child aged 12,210 and in Re S211 of a child aged only nine.

Human rights and fundamental freedoms 15.55  The order for the return of the child can be refused if 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.212 This is a partial substitute for the public policy exception that is usually found in international Conventions — although, even as clumsily expressed in the form implemented in the Regulation, it appears to be narrower than the public policy exception. The reference to ‘the protection of human rights and fundamental 203. C v C (Abduction: Rights of Custody) [1989] 2 All ER 465 at 470; Director-General of Family and Community Services (NSW) & Davis (1990) 14 Fam LR 381 at 385, 386. 204. Gsponer v  Johnstone (1988) 12 Fam LR 755. See  also Re  A (a Minor) [1988] 1 FLR 365 at  372; DirectorGeneral of Family and Community Services (NSW) & Davis (1990) 14 Fam LR 381 at 385. 205. Child Abduction Convention 1980 Art 13; Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(3)(c). 206. Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(3)(c)(ii). This qualification does not appear in the Child Abduction Convention 1980. 207. Re S (a Minor) (Abduction: Custody Rights) [1993] Fam 242 at 250. 208. Re F (Hague Convention: Child’s Objections) (2006) 36 Fam LR 183; [2006] FamCA 685. 209. (1994) 17 Fam LR 571. 210. Re F (Hague Convention: Child’s Objections) (2006) 36 Fam LR 183; [2006] FamCA 685. 211. [1993] Fam 242. 212. Child Abduction Convention 1980 Art 20; Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(3)(d).

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freedoms’ is open-ended, and despite the repetitive reference to ‘the fundamental principles of Australia’ might include those rights and freedoms found in international Conventions to which Australia is party, but which it has not implemented.213 It does not, however, allow a party to rely on the provision in the United Nations Convention on the Rights of the Child that makes the welfare of the child a paramount consideration.214 In DP v Commonwealth Central Authority,215 Kirby J suggested in a dictum that this ground would be available where, despite the normal requirements of the Convention, ‘the authorities and officials of the country of habitual residence were corrupt, that due process would be denied to the child or to the custodial parent or that, otherwise, basic human rights would not be respected’.216

Return despite excusable removal or retention 15.56  It is still open to a court to order the return of the child to its place of habitual residence, even if the person who is resisting the order for return makes out a case on one of these grounds.217 But if such a case is made out, it is also open to the court to refuse to order the return of the child.218 The difference to the position where a court concludes that there has been a wrongful removal or retention is that, where the removal or retention is excusable, the return is not mandatory. The little Australian authority that exists on this point intimates that the decision to return or not to return the child depends on the merits of the case. Presumably, this means that the decision really depends on the court’s conclusion as to whether a return is in the best interests of the child.219 In DP v Commonwealth Central Authority220 Gaudron, Gummow and Hayne JJ held that there will be many matters that may bear on the exercise of this discretion. It might be appropriate nonetheless to order the return, but attach conditions to the order. The conditions could include that the parties pursue judicial proceedings in the place of habitual residence, and that interim arrangements be made for the care of the child. However, if conditions are attached, the court must ensure that they can be met voluntarily or enforced in the place of habitual residence.221 The decision of the Extra Division in MacMillan v MacMillan222 suggests that if the removal or retention becomes excusable because a return would risk the child being exposed to harm, the return of the child will not be ordered. This view was rejected in DP v Commonwealth Central Authority,223 although the implication was that conditions attached to the order for return should be tailored to reduce, or eliminate, that risk of harm.

213. Cf Marriage of Murray and Tam; Director, Family Services (ACT) (Intervener) (1993) 16 Fam LR 982 at 999–1000. 214. At 999–1000. 215. (2001) 206 CLR 401; [2001] HCA 39. 216. At 432–3. 217. Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(5). 218. Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(3). 219. Graziano v  Daniels (1991) 14 Fam LR 697 at  705; cf Re  A (minors) (abduction) [1992] Fam 106 at  122; Re A (Minor) (Abduction) (No 2) [1993] 1 All ER 272 at 280. 220. (2001) 206 CLR 401; [2001] HCA 39. 221. At 417. 222. 1989 SLT 350 at 354. 223. (2001) 206 CLR 401 at 417; [2001] HCA 39.

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Access 15.57  The Child Abduction Convention does not give rights of access either the importance or attention that it devotes to rights of custody. It defines them as including ‘the right to take a child for a limited period of time to a place other than the child’s habitual residence’.224 However, the concept is much broader and would undoubtedly parallel rights existing under a contact order.225 For the Convention to apply to rights of access, the child to whom they relate must be habitually resident in a convention country.226 Further, the rights of access to the child must arise under the law of a convention country — although that need not be the same convention country as that in which the child was habitually resident.227 Further, those rights of access can first arise in the place of habitual residence even after the child has left that country.228 There is no need to show a removal or retention of the child from its place of habitual residence, but that will often be the reason why an applicant finds it necessary to invoke rights under the Child Abduction Convention. 15.58  The central authorities have a duty to promote the peaceful enjoyment of rights of access, and the fulfilment of any conditions applicable to those rights. They are also obliged to take steps to remove any obstacles to the exercise of rights of access, to the extent that it is possible.229 In Australia, a person who claims to have rights of access to a child under the Family Law Act or a state or territory law can apply to a central authority to have arrangements made for organising or securing the effective exercise of those rights in a convention country. A foreign central authority can apply to the Commonwealth Central Authority for similar arrangements to be made in relation to a child who is in Australia.230 In the latter case, a central authority can apply to a court for an order relating to rights of access to the child.231 However, if a central authority considers it necessary to make an application to a court, it is hard to see what specific responsibilities it has, beyond providing the applicant with appropriate legal representation.232 15.59  The Child Abduction Convention does not impose any specific duties on a court in a convention country in relation to rights of access, unlike the particular duties relating to the speedy return of children it imposes when rights of custody are in question. It therefore appears that, as in any other case relating to a contact order, a court in Australia must decide the question of access by reference to the best interests of the child as a paramount consideration.233 In addition, the court must respect the rights 224. Child Abduction Convention 1980 Art 5(b); Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 2(1). 225. Family Law Act 1975 (Cth) s 64B(2)(b), (4). 226. B v B (Minors: Enforcement of Access Abroad) [1988] 1 All ER 652. 227. Re G (a Minor) (Enforcement of Access Abroad) [1993] Fam 216. 228. Director-General, Dept of Family and Community Services v Raddison (2012) 46 Fam LR 567 at 578; [2012] FamCAFC 41. 229. Child Abduction Convention 1980 Art 21. 230. Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 24. 231. Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 25. 232. Re T (Minors) (International Child Abduction: Access) [1993] 3 All ER 127. 233. Family Law Act 1975 (Cth) s 65AA.

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of access recognised in another convention country. In Gumbrell v  Jones, the Family Court of New Zealand — New Zealand being the child’s place of habitual residence — had to consider what effect should be given to rights of access to the child made by order of the High Court of Justice in England, when the child lived there. The New Zealand court noted that it could impose an access order of its own choice but, as the case arose ‘under the general umbrella of the Convention’, should accord ‘respect’ to the English order. ‘Prima facie in these cases, the Court can generally assume that the order was for the welfare of the child at the time it was made.’235 Accordingly, the court would not vary the terms of the English order, but made its own order in the same terms.236 However, nothing in the Convention demands that the foreign orders be enforced unless it is in the child’s interests to do so.237 234

Choice of law Part VII of the Family Law Act 15.60  The provisions of Pt VII of the Family Law Act and, for ex-nuptial children in Western Australia, the Family Court Act  1997 (WA) apply when a multi-state case concerning the care or responsibility for a child does not fall within the terms of the Child Abduction Convention, or when a court concludes that, in accordance with the Convention, the removal or retention of the child is excusable. In such cases, two approaches to the care or control of the child are possible. First, a person who wants an order for the care or responsibility for the child may apply for a parenting order. Or, again for ex-nuptial children in Western Australia, the person could apply for a parenting order in the same manner as if the case had no international element. The court’s task in making a decision about the care or responsibility for the child might, nevertheless, be complicated by the need to take the foreign elements of the case into account. This could include issues relating to the recognition of a foreign parenting order, which are considered separately below. 15.61  In any multi-state case involving the care or responsibility for a child apart from those arising within the scope of the Child Protection Convention, the law of the cause is the law of the forum.238 In most parts of Australia, this means the applicable law is Pt VII of the Family Law Act. In Western Australia, it is Pt 5 of the Family Court Act.

Child Protection Convention Classification 15.62  Different choice of law rules apply when a court is exercising jurisdiction under the Child Protection Convention. As mentioned, the Family Law Act’s implementation 234. 235. 236. 237. 238.

[2001] NZFLR 593. At [35]. At [40]. B v B (Minors: Enforcement of Access Abroad) [1988] 1 All ER 652 at 658–9. J v C [1970] AC 668 at 720; Marriage of van Rensburg and Paquay (1993) 16 Fam LR 680 at 686; cf R v Langdon (1953) 88 CLR 158 at 160.

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of the Convention gives power to Australian courts to make both personal and property protection measures. Here, the concern is only with personal protection measures. While the issues that would fall within the power to order personal protection measures have been briefly mentioned, it is necessary at this point to set out the full scope of matters that are encompassed by Art 3 of the Convention. This refers to measures that may deal with: (a) the attribution, exercise, termination or restriction of parental responsibility, as well as its delegation; (b) rights of custody, including rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence, as well as rights of access including the right to take a child for a limited period of time to a place other than the child’s habitual residence; (c) guardianship, curatorship and analogous institutions; (d) the designation and functions of any person or body having charge of the child’s person … , representing or assisting the child; (e) the placement of the child in a foster family or in institutional care, or the provision of care by kafala or an analogous institution; (f) the supervision by a public authority of the care of a child by any person having charge of the child …

The Convention expressly excludes:239 (a) the establishment or contesting of a parent-child relationship; (b) decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption; (c) the name and forenames of the child; (d) emancipation; … (h) public measures of a general nature in matters of education or health; (i) measures taken as a result of penal offences committed by children; (j) decisions on the right of asylum and on immigration.

The choice of law rules applicable to these ‘protection issues’ differ, depending on whether or not they concern matters of ‘parental responsibility’. This is defined in Art 1(2) of the Convention as including issues of ‘parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child’.240

Parental responsibility — general choice of law rule 15.63  In general, the law of the place of the child’s habitual residence will govern the circumstances in which parental responsibility is attributed to any person by operation of law,241 or by agreement. In the latter case, this is the place of habitual residence at the time the agreement takes effect.242 The lawful exercise of parental responsibility is also governed by the law of the place of habitual residence.243 If the child’s habitual residence changes, however, 239. 240. 241. 242. 243.

Child Protection Convention 1996 Art 4. Family Law Act 1975 (Cth) s 111CA(1). Family Law Act 1975 (Cth) s 111CS(2). Family Law Act 1975 (Cth) s 111CS(3). Family Law Act 1975 (Cth) s 111CS(4).

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15.65

there can be implications for identifying the law of the cause in these cases. Most matters that were governed by the law of the place of (the earlier) habitual residence continue to be governed by the law of that place.244 However, two matters will be governed by the law of the place of the new habitual residence. First, in all cases, the exercise of parental responsibility will be governed by the law of the place of the new habitual residence.245 Second, if the place of the new habitual residence attributes parental responsibility to another person — that is, other than someone who had parental responsibility in the place of the earlier habitual residence — then the circumstances in which parental responsibility is attributed will be governed by the law of the place of the new habitual residence.246 As an example, it can be assumed that the law of Ruritania (a convention country) refuses to recognise that an unmarried father had rights in relation to the parenting of his child, but that the mother has exclusive parenting rights in relation to the child. However, another convention country, Hentzau, recognises that the parents had joint parenting rights and duties, regardless of whether or not they were married. According to the Australian choice of law rules, if the child, at first habitually resident in Ruritania, were to be relocated to Hentzau and become habitually resident there, the father would gain joint parenting rights with the mother and the exclusive parenting rights that the mother had had in Ruritania would no longer be recognised in Australia.247

Parental responsibility — exceptions to choice of law rule 15.64  The application of the law of the place of habitual residence may cease if an Australian court makes an order while properly exercising a jurisdiction that is within the requirements of the Child Protection Convention.248 Further, the court may refuse to apply the law of the place of habitual residence if it would be manifestly contrary to public policy and if it is in the best interests of the child not to apply the residential law.249

Renvoi 15.65  For the most part, renvoi is excluded for matters arising under the Child Protection Convention.250 The ‘law’ that is applied excludes the relevant country’s choice of law rules.251 However, there is a small opportunity for the recognition of a transmission under the Child Protection Convention. It is possible, under the Convention’s rules of jurisdiction, for a matter arising within the Convention to concern a child who is habitually resident in a non-convention country; for example, where the child is a refugee. In that case, parental responsibility may be determined by the law of a non-convention country.252 For example, it can be assumed that the place of habitual residence is Ruritania (now a non-convention country) and Ruritania’s choice of law rules require the law of Hentzau 244. 245. 246. 247. 248. 249. 250. 251. 252.

Family Law Act 1975 (Cth) s 111CS(5)(a). Family Law Act 1975 (Cth) s 111CS(5)(c). Family Law Act 1975 (Cth) s 111CS(5)(b). Cf Monahan, above n 53, at 103. Family Law Act 1975 (Cth) s 111CS(7). Family Law Act 1975 (Cth) s 111CS(8). See 8.13–8.35. Family Law Act 1975 (Cth) s 111CQ. Child Protection Convention 1996 Art 20.

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(also now a non-convention country) to govern the question of parental responsibility. So long as the law of Hentzau accepts the transmission, its law will be taken in Australia to govern the question of parental responsibility.253 It is an unusual exception, but given both the limited circumstances in which the law of a non-convention country can apply, and the need for the transmission also to be to the law of a non-convention country, one that will hardly ever arise in practice.

Law of the cause for other issues under the Child Protection Convention 15.66  If the Australian court is exercising jurisdiction in accordance with the Child Protection Convention, and the matter is not one concerning parental responsibility, the law of Australia governs the question.254 However, in ‘exceptional circumstances’, the law of a place with which the child has ‘a substantial connection’ may be applied instead. This exception may only be invoked if the Australian court considers that the protection of the child justifies application of the law of that other place.255

The recognition of foreign parenting orders The general law 15.67  In exercising its jurisdiction under Pt VII of the Family Law Act or Pt 5 of the Western Australian Family Court Act, a court might have to assess the significance, if any, of a foreign order relating to the child. It might be possible, in some cases, to register the order under Div 13 of Pt VII. This procedure helps to avoid litigation and, indeed, limits the possibility of subsequent litigation once registration takes place. 15.68  A parenting order is one that confers some parental responsibility on a person.256 It can deal with concerns such as the person with whom a child is to live (and to that extent is called a ‘residence order’), contact between a child and others (a ‘contact order’), maintenance (a ‘child maintenance order’) and any other aspect of parental responsibility (a ‘specific issue order’).257 In all cases excepting a child maintenance order, a court can make any parenting order that it considers proper.258 The best interests of the child is inevitably a  relevant criterion when making this order, although it is not the sole consideration.259 There is little doubt that this basic principle conditions the approach that a court must take to any international elements in the case which relate to the position of the child.

253. Family Law Act 1975 (Cth) s 111CS(6). 254. Family Law Act 1975 (Cth) s 111CR(2). 255. Family Law Act 1975 (Cth) s 111CR(3). An exception is also allowed in favour of the law of a place with which the child’s property has a substantial connection. However, this exception would appear more relevant for property protection measures. 256. Family Law Act 1975 (Cth) s 61D(1); Family Court Act 1997 (WA) s 70(1). 257. Family Law Act 1975 (Cth) s 64B(1)–(6); Family Court Act 1997 (WA) s 84. 258. Family Law Act 1975 (Cth) s 65D(1); Family Court Act 1997 (WA) s 89(1). 259. Family Law Act 1975 (Cth) ss 65DAA–65DAB; Family Court Act 1997 (WA) ss 89AA–89AB.

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15.69  The leading case on how a court is to deal with a foreign parenting order in proceedings relating to the care or responsibility for a child is McKee v McKee,260 an appeal to the Privy Council from Ontario. The parties in McKee were American, and their son was born in California in 1940. They separated soon after, but executed an agreement that the boy should not be removed from the United States without both parties’ permission. Subsequently, the Superior Court of California issued a custody order. Under California law, the child was to remain in the father’s custody until 1947 when, in accordance with a custody order, custody passed to the mother. However, in late 1946, the father made an application in Ontario for custody, which Wells J granted. This was upheld by the provincial Court of Appeal and the Supreme Court of Canada. The Privy Council also upheld the custody order in the father’s favour. 15.70  In the Privy Council, Lord Simonds considered the effect of the California order giving custody to the mother. It was assumed the California court had jurisdiction to make the order, but on finding that the court in Ontario also had jurisdiction over the child, the paramount consideration was the child’s own welfare.261 The court could make an independent judgment on this issue, though in doing so it had to give ‘proper weight’ to the foreign order. That depended on the circumstances. The more recent the foreign order and the smaller the change in circumstances, the greater the weight it should be given. However, the court is, in all cases, to make its own decision as to the best interests of the child.262 Later authority shows that the foreign order is likely to receive more respect if, soon after it was made, the child was abducted to Australia in breach of the order.263 Even in this case, the court might disregard the order if the return of the child to the place where the order was made would be contrary to the child’s best interests.264 Consequently, it is open to a court to confirm the rights recognised in a foreign parenting order or to upset them, either by appointing a custodian to replace the foreign custodian or to act jointly with the foreign custodian.265 Or, the foreign custodian might simply be given the right to remove the child from Australia without the court having to make a comprehensive parenting order.266 15.71  The abduction of a child who is resident in another place is another factor that a court may have to deal with in a multi-state parenting or custody case. In these cases, the court must still make its decision by reference to the best interests of the child. However, at an early stage it must also determine whether the interests of the child are best decided by a court in the place from where the child was taken.267 To some extent, the policy results from the influence of the Child Abduction Convention on the general law even though, in these cases, that Convention is not directly applicable.268 So, the court can order the return 260. 261. 262. 263. 264. 265. 266. 267. 268.

[1951] AC 352. At 363–4. At 364. Taylor v Taylor (SC (Vic), Lush J, 17 September 1970, unreported). Re E (D) [1967] Ch 761. Re Willoughby (1885) 30 Ch D 324. Cf Nugent v Vetzera (1866) LR 2 Eq 704; Monaco v Monaco (1937) 157 LT 231. Marriage of Schwarz (1985) 10 Fam LR 235 at 237. See Marriage of Barrios and Sanchez (1989) 13 Fam LR 477; Marriage of van Rensburg and Paquay (1993) 16 Fam LR 680.

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of the child, as long as it is in the child’s interests.269 However, the longer the residence of the child in the foreign place or the more recent the abduction, the more likely a return will be ordered.270 Conversely, the longer the child has been resident in Australia, the more likely the court in this country will be prepared to determine the merits of the case.271 The court is also more likely to exercise its jurisdiction to determine the merits of the case if it appears there will be delays in doing so in the foreign place.272 The court will also be inclined to exercise jurisdiction if the foreign court is unlikely to give priority to the interests of the child.273

The registration of foreign parenting orders Child Protection Convention 15.72  A protection measure made by a competent authority of a country where the Child Protection Convention has been entered into force may be registered in an Australian court. The procedure is that the convention country’s authority sends a document containing the protection measure to the Commonwealth Central Authority,274 which then sends it to a relevant state or territory central authority, or to an appropriate court exercising federal family jurisdiction for registration.275 A state or territory authority can also arrange for registration of a foreign protection measure. On receiving a document that sets out a foreign protection measure, the registrar of the relevant court may register the measure in the court.276 When the foreign measure is registered, it has the same force and effect as a personal protection measure made by an Australian court.277 This means that it prevails over any earlier inconsistent measure in relation to the child that was either made in Australia, or registered in Australia under the Child Protection Convention or Pt VII of the Family Law Act.278 Any person interested in the order may take proceedings in the registering court to enforce the order according to its terms.279

Part VII registration 15.73  Division 13 of Pt VII of the Family Law Act prescribes a procedure for the enforcement of certain overseas child orders by registration. These are court orders determining the person or persons with whom a child under 18 is to live, the custody of the child, and the persons with whom it can spend time, or have contact or access; orders varying such orders; and orders made for the purposes of the Child Abduction Convention.280 However, it is not every such order that can be registered. First, the order 269. 270. 271. 272. 273. 274. 275. 276. 277.

Family Law Act 1975 (Cth) ss 67Q, 67U; Family Court Act 1997 (WA) ss 149, 153. Marriage of Reihana (1980) 6 Fam LR 134. Marriage of Schenck (1981) 7 Fam LR 170. Clague v Graves (1987) 11 Fam LR 494. Marriage of Raja Bahrin (1986) 11 Fam LR 233. Family Law (Child Protection Convention) Regulations 2003 (Cth) reg 10. Family Law (Child Protection Convention) Regulations 2003 (Cth) reg 11. Family Law (Child Protection Convention) Regulations 2003 (Cth) reg 12. Family Law Act 1975 (Cth) s 111CT(2)(a); Family Law (Child Protection Convention) Regulations 2003 (Cth) reg 12(2)(a). 278. Family Law Act 1975 (Cth) s 111CT(2)(b). 279. Family Law (Child Protection Convention) Regulations 2003 (Cth) reg 12(4). 280. Family Law Act 1975 (Cth) s 4(1).

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must have been made in ‘a prescribed overseas jurisdiction’. The only jurisdictions that have been prescribed are Austria, New Zealand, Papua New Guinea, Switzerland, each of the United States of America (except New Mexico and South Dakota) and the District of Columbia.282 Even though the Child Abduction Convention also applies to Austria, New Zealand, Switzerland and most of the United States, the registration procedure may be useful if an application for a return under that Convention fails. Second, the order cannot be either an interim order or an ex parte order.283 The order can, however, relate to a child born outside marriage. Division 13 does not need a referral of powers relating to ex-nuptial children from the states to maintain its constitutional validity for, according to the Full Court of the Family Court in Marriage of Blair and Jenkins,284 the forerunner to Div 13 was a valid exercise of the external affairs power. Unlike other aspects of Pt VII, it can and does operate in Western Australia without being limited to children born in wedlock.285 281

15.74  To enforce an overseas child order, a person must provide the required documents either to the secretary of the federal Attorney-General’s Department or the court with the required documents. These are a certified copy of the order and a certificate to the effect that it is enforceable in the overseas place. If the secretary receives the documents, they must be satisfied that the child, a parent or a custodian is ordinarily resident in, present in or ‘proceeding to’ Australia.286 If so, the secretary must register the order with an appropriate superior court. These are the Family Court of Australia, the Family Court of Western Australia or a Supreme Court of any state or territory.287 The order can be registered directly in the court, in which case similar requirements must be met.288 On receiving the required documents from the secretary, the court must register the order. It has a limited discretion to refuse registration if the documents are filed by someone else.289 In several cases, the Family Court has registered overseas orders which recognise the legal status of commissioning parents in commercial surrogacy arrangements.290 15.75  The result of the registration of an overseas child order is that it has the same force and effect as if it were an order made under Pt VII.291 However, once the order is registered, Div 13 281. 282. 283. 284. 285. 286.

287. 288.

289. 290. 291.

Family Law Act 1975 (Cth) s 4(1). Family Law Regulations 1984 (Cth) reg 4(1), Sch 1A. Family Law Act 1975 (Cth) ss 4(1), 70G; cf Marriage of Uriarau (1986) 11 Fam LR 657 at 661. (1988) 12 Fam LR 85. Family Law Act 1975 (Cth) s 69ZH(4). Sigley & Sigley, Forrest J held that ‘proceeding to Australia’ meant ‘ “coming to” or “travelling to” Australia, whether that be for a visit or to live here and whether that person be currently on their way here or simply planning to come here sometime soon’: (2018) 57 Fam LR 347; [2018] FamCA 3 at [25]. See also Re Grosvenor [2017] FamCA 366 at [27]. Family Law Regulations 1984 (Cth) reg 23. Family Law Act 1975 (Cth) s 70G; Family Law Regulations 1984 (Cth) reg 23. If the required documents, including a certificate signed by an officer of the foreign court, or another authority from that jurisdiction, stating that the order is enforceable in that jurisdiction, are not provided, the foreign order cannot be registered, although it might be relevant to the court’s determination as to other orders sought: Hackford v Hackford [2015] FamCA 415. Marriage of Trnka (1984) 10 Fam LR 213. Sigley & Sigley (2018) 57 Fam LR 347; [2018] FamCA 3; Re Grosvenor [2017] FamCA 366; Re Halvard [2016] FamCA 1051. Family Law Act 1975 (Cth) s 70H.

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also imposes limitations on the power of a court in Australia to make a residence or contact order in relation to the child, or indeed a specific issues order affecting its day-to-day care, welfare and development.292 The court is only allowed to exercise jurisdiction in those matters in two cases. The first is when the relevant parties to the order consent to its jurisdiction, and the second is when the court is satisfied that there are ‘substantial grounds’ for believing that it is in the interests of the child to exercise jurisdiction.293 It appears the latter is difficult to prove; for example, this ground is not made out by showing that the arrangements for the child in Australia are satisfactory and the child wishes to stay in the country.294 15.76  The existence of a registered overseas child order not only limits the jurisdiction of a court in Australia to make orders in relation to the child. In the rare case that the court can exercise jurisdiction, s 70J(2) states that it can only make an order if — in addition — the welfare of the child would be adversely affected were a new order not made, and there has been such a change in the circumstances of the child since the overseas order was made that a new order must be made. Further, in its terms, s  70J(2) places these limits on the court merely when the child ‘is the subject of an overseas child order’. There is no express requirement that the order actually be registered. So, it may be simply on proof of the existence of, for example, a Papua New Guinea order, that the court’s power to deal with the child is limited by s 70J(2). 15.77  An Australian court can only exercise jurisdiction and make a new order in relation to a child after the registration of an overseas child order if it is necessary to make different provision for the child. If it does, the overseas child order must be cancelled.295 However, where an order was made in Australia before the registration of an overseas child order, either the Australian or the overseas order can be discharged. Again, onerous conditions must be satisfied before the overseas order can be cancelled. These are that the parties to the order must consent to its cancellation; there must be ‘substantial grounds’ for believing that the child’s welfare will be adversely affected unless it is cancelled; or there has been such a change in the circumstances of the child since the order was made that it is inappropriate for it to continue in operation.296 Otherwise, the Australian order must be discharged.297 15.78  Austria, New  Zealand, Papua New Guinea, Switzerland and most of the United States make similar provision for the registration and enforcement of parenting orders made in Australia. To facilitate this, Div 13 enables the transmission of documents needed to secure the enforcement of a parenting order. A person can require the registrar of a court in Australia to send the required documents to the appropriate court or official in one of those places.298

292. 293. 294. 295. 296. 297. 298.

Family Law Act 1975 (Cth) s 70J. Family Law Act 1975 (Cth) s 70J(1). Marriage of Greenfield and Dawson (1984) 9 Fam LR 606. Family Law Act 1975 (Cth) s 70K. Family Law Act 1975 (Cth) s 70L(6). Family Law Act 1975 (Cth) s 70L(5). Family Law Act 1975 (Cth) s 70M; Family Law Regulations 1984 (Cth) reg 24.

422

Chapter 16 Property and Maintenance Introduction 16.1  As with other areas of family law, proceedings for the division of property or the provision of maintenance after the breakdown of a family implicate questions of jurisdiction, choice of law and the recognition of foreign orders. These proceedings include those that seek orders for the division of property and the approval of financial agreements made between the parties to the marriage or relationship. So far as maintenance is concerned — that is, an order for the regular payment of money for the support of a child or a former spouse or partner — these proceedings include those that seek a maintenance order, those that seek the approval of a maintenance agreement, or those that seek the enforcement of a maintenance order or agreement. 16.2  However, the jurisdiction of the Family Court of Australia and the Federal Circuit Court of Australia in property and maintenance proceedings is available to people emerging from a broader range of relationships than is the case for principal relief.1 This is because all states other than Western Australia have referred powers to the Commonwealth to deal from 1 March 2009 with property division and the continuing financial relations of people who were in de facto relationships that have broken down.2 For this purpose, a de facto relationship is one between persons who ‘are not legally married to each other; … are not related by family … and having regard to all the circumstances of their relationship, … have a relationship as a couple living together on a genuine domestic basis’.3 These relationships can be either heterosexual or homosexual. They also need not be exclusive; a de facto relationship can exist even where one of the partners is married or involved in another de facto relationship.4 In all parts of Australia other than Western Australia, the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) now covers the field for property division and the continuing financial relations of people after the collapse of a de facto relationship. Once more, the jurisdiction of the Family Court of Western Australia in all family law matters, whether originating in federal or state 1. 2.

3. 4.

See Chapter 14. Commonwealth Powers (De Facto Relationships) Act 2003 (NSW); Commonwealth Powers (De Facto Relationships) Act 2003 (Qld); Commonwealth Powers (De Facto Relationships) Act 2003 (SA); Commonwealth Powers (De Facto Relationships) Act 2006 (Tas); Commonwealth Powers (De Facto Relationships) Act 2004 (Vic). South Australia’s referral does not include power to deal with ‘companion couple relationships’: Commonwealth Powers (De Facto Relationships) Act 2003 (SA) s 4(1)(b). Family Law Act 1975 (Cth) s 4AA(1). Family Law Act 1975 (Cth) s 4AA(5).

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jurisdiction, does not in practice require a referral of powers over de facto relationships from Western Australia to the Commonwealth. 16.3  In the family jurisdiction, orders for the division of property or maintenance are often referred to as ‘ancillary relief’. They are usually made as a consequence of a court’s ordering principal relief such as a decree of annulment, judicial separation or dissolution (that is, divorce). The characterisation of property and maintenance orders as ancillary has possible implications for the relevance of the principles for the recognition of decrees of principal relief to the recognition in Australia of foreign orders for property and maintenance. In some respects, the description ‘ancillary relief’ is a poor fit where orders relating to property and maintenance may be made as a result of the collapse of a de facto relationship. By its nature, a de facto relationship is not one that, when it breaks down, invokes any jurisdiction for the making of orders about the status of the relationship. Property or maintenance orders made in relation to de facto relationships are not therefore dependent on or ancillary to any other order.

Jurisdiction Jurisdiction as of right 16.4  There is jurisdiction in Australia to hear and determine proceedings for property or maintenance if, on the date the application is filed either party is an Australian citizen;5 ordinarily resident in Australia;6 or present in Australia.7 The ground of jurisdiction is therefore precisely the same as that for the annulment of a marriage.8

Parties 16.5  All property proceedings, and proceedings for maintenance between the parties to the relationship (that is, proceedings for ‘spousal maintenance’) are to be brought by a party to the relationship. However, a broader range of persons is entitled to bring proceedings for child maintenance. The Family Law Act 1975 (Cth) and the Family Court Act 1997 (WA) provide that: (1)  . . . a child maintenance order in relation to a child may be applied for by: (a)  either or both of the child’s parents; or (b)  the child; or (ba)  a grandparent of the child; or (c)  any other person concerned with the care, welfare or development of the child. (2)  A child maintenance order in relation to a child who is under the guardianship, or in the care (however described), of a person under a child welfare law may only be applied for by: (a)  the child; or (b)  a parent of the child who has the daily care of the child; or 5. 6. 7. 8.

Eg, Clayton v Bant (No 2) [2015] FamCA 102 at [46]; Allen & Cortez [2016] FamCA 320; Sibly & Cassidy [2015] FamCA 912; Lan & Hao [2016] FamCA 670 at [18]; Warren & Horodecki [2016] FamCA 875. Eg, Clayton v Bant (No 2) [2015] FamCA 102 at [46]; Lan & Hao [2016] FamCA 670 at [18]; Medapati & Revanka (No 2) [2017] FamCA 319 at [10]. Eg, Zao and Gong [2018] FamCA 379 at [2]. Family Law Act 1975 (Cth) s 39(4); Family Court Act 1997 (WA) s 35.

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(c)  a relative of the child who has the daily care of the child; or (d)  a child welfare officer of the relevant State or Territory.9

Limits on jurisdiction 16.6  The usual common law restrictions on the jurisdiction of courts in property proceedings seem to be applicable to those brought in family jurisdiction. For example, the inability of most Australian courts to deal with proceedings involving foreign immovable property — the Moçambique rule10 — would seem also to apply in property proceedings brought in relation to the breakdown of marriage or another relationship. The question was raised in relation to local land in Pagliotti v Hartner.11 There, the wife had brought property proceedings in the Supreme Court of New South Wales relating to land in that state. The proceedings were then transferred to the Family Court. However, there had been earlier proceedings between the husband and wife in the Ordinary Tribunal of Rome for judicial separation and maintenance, although the Roman tribunal did not deal with the New South Wales land as it did not have jurisdiction under the law of Italy. The husband, nevertheless, sought a stay of the Australian proceedings, but failed before Stevenson J and, on appeal, before the Full Court. In relation to the land, Coleman, Boland and O’Ryan JJ held that the plea of forum non conveniens was ‘inconsistent with the decision in British South Africa Co v Companhia de Moçambique … which is regarded as setting down the modern rule denying jurisdiction in respect of title to, or possession of, land situated within a foreign jurisdiction’. They added: ‘The Moçambique rule 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” … whether mindful of that decision or not, the determination of the Roman Tribunal is consistent with the “Rule” and its rationale’.12 So, while the proposition in Pagliotti v Hartner is that, if local land is involved, the Moçambique rule reinforces the jurisdiction of the local court, it also gives recognition to the relevance of the Moçambique rule in family property proceedings. The more recent decision in Chen and Tan13 is not easy to reconcile with this. In Chen, Kent J noted that the jurisdiction of the Family Court of Australia to make property orders was in personam, and not in rem. As a result, citing Pagliotti he held that there was power to order a party before the court to adjust holdings in immovable property held overseas:14 ‘There is therefore no offence to the Mozambique [sic] Rule for the exercise of jurisdiction with respect to foreign land’.15 There is certainly no question that the Moçambique rule is often bypassed by orders made in personam,16 although that did not seem to concern the Full Court in Pagliotti. However, in Chen Kent J also noted in obiter dicta that Australian courts should not make orders that, if followed, would be illegal in the place where the land

9. 10. 11. 12. 13. 14. 15. 16.

Family Law Act 1975 (Cth) s 66F; Family Court Act 1997 (WA) s 118. British South Africa Co v Companhia de Moçambique [1893] AC 602; see 3.2–3.11. (2009) 41 Fam LR 41; [2009] FamCAFC 18. At [181]. [2012] FamCA 225. At [19]. At [17]. See 3.9–3.10.

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was located, and should avoid making orders that were in direct conflict with the law of that place.17 This seems, in proceedings involving foreign land, to be putting the constraint on a discretionary footing, the very point rejected in Pagliotti. However, the prevailing view of the Full Court of the Family Court is that the Moçambique rule no longer places any substantive limitation on Australian family jurisdictions to make orders relating to foreign immovable family property.18

Discretionary stay of proceedings 16.7  The principles of forum non conveniens as stated in Voth v Manildra Flour Mills Pty Ltd19 apply generally in family proceedings, including those concerning property or maintenance questions.20 There will be strong grounds for ordering a stay of proceedings if a foreign court of relevant jurisdiction has already determined all property and financial matters between the parties.21 However, the relevance of the plea to property division and maintenance proceedings that have not reached final determination in the foreign country was considered by the Full Court of the Family Court in Gilmore v Gilmore,22 a case decided before the implementation of the Trans-Tasman Proceedings Act 2010 (Cth). There, the wife resisted the husband’s application for a stay of proceedings in favour of the Family Court of New Zealand on the ground that she had a significant juridical advantage by pursuing proceedings for maintenance in Australia.23 It was accepted that the ‘natural forum’ for the proceedings was in New Zealand, but that under the Voth principles this was not a relevant consideration.24 Fogarty J (with whom Finn and Lindenmayer JJ agreed) reiterated that, even if New Zealand were to provide the more appropriate court for the proceedings, the question was whether the Australian court was a clearly inappropriate forum.25 He held that it could not be concluded that the Family Court of Australia was a clearly inappropriate forum. In particular, Australian law would consider a larger range of assets to constitute ‘matrimonial property’ than would New  Zealand law, enabling a more favourable division of property for the wife.26 That to one side, the court considered that any question of balance of convenience between Australia and New Zealand was irrelevant once the Australian court was not regarded as a clearly inappropriate forum.27 As Gilmore strongly suggests, the Voth principles themselves weigh against the granting of a stay. Given the implementation of the TransTasman Proceedings Act, these principles no longer apply when the competing court is in 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27.

At [18]; see also Lan & Hao [2016] FamCA 670 at [74]–[75]; Medapati & Revanka (No 2) [2017] FamCA 319 at [23]. Teo v Guan (2015) Fam LR 248 at [134]–[135]; see A Dickey, ‘Orders in Respect of Foreign Property under Section 79’ (1993) 67 Australian Law Journal 538. (1990) 171 CLR 538; see 4.37–4.45. Henry v Henry (1996) 185 CLR 571. For an early example, see Finlay v Finlay (1885) 23 SLR 584. Taffa and Taffa (Summary Dismissal) [2012] FamCA 181. [1993] FLC 92-353. At [148]. At [146]–[147]. At [148]. At [132]. At [148].

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New Zealand. They do apply when the competing court is in any other country. Under the principles of Voth, it does not matter that the foreign court might be the more appropriate forum.28 However, issues that have also helped to weigh against a stay of proceedings include a more favourable law for one party (which is necessarily a less favourable law for the other),29 both parties are Australian citizens or previously lived in Australia,30 related proceedings in the other country did not involve matrimonial property,31 there are substantial property holdings in Australia,32 local immovable property is included in the property proceedings,33 and the cost of foreign lawyers familiarising themselves with the case is significant.34 On the other hand, in Morton v Morton35 Watt J was prepared to grant a stay of property and maintenance proceedings brought in the Family Court but in parallel to proceedings in an English County Court. The decisive consideration was that the source of maintenance payments would be the husband’s British defence force pension. Watt J established that the only authority that could make a pension division order was an English court, and that, coupled with the capacity of the English County Court to deal with all aspects of the property and maintenance claims between the parties, meant that the stay should be granted.36 Equally, the Australian court was a clearly inappropriate forum in Warren & Horodecki37 where the only connection with Australia was the wife’s and a child’s citizenship, but both parties lived in Poland, all real estate was in Poland and bank accounts were held in European countries.38

Anti-suit injunctions 16.8  The Family Court39 and the Federal Circuit Court40 both have powers to restrain family property or maintenance proceedings in a foreign court41 (other than a New Zealand

28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39.

40. 41.

Hong & Cao [2018] FamCA 40 at [118]. Gilmore v Gilmore [1993] FLC 92-353. Allen & Cortez [2016] FamCA 320 at [46]; Kent & Kent [2017] FamCAFC 157 at [32]; Hong & Cao [2018] FamCA 40 at [111]. Hong & Cao [2018] FamCA 40 at [114]–[116]. Allen & Cortez [2016] FamCA 320 at [55]; Kent & Kent [2017] FamCAFC 157 at [32]. Pagliotti v Hartner (2009) 41 Fam LR 41; [2009] FamCAFC 18 at [181]. Allen & Cortez [2016] FamCA 320 at [67]. [2008] FamCA 854. At [40]. [2016] FamCA 875. For the granting of a stay when all of the property was in the foreign country, see also Soderberg v Soderberg [2016] FamCA 71. Esmore & Esmore (1979) FLC 90-711; Reynolds v Reynolds (1979) FLC 90-728; Bak & Bak (1980) FLC 90-877; Smith & Saywell (1980) FLC 90-856; Baba & Jarvinen (1980) FLC 90-882; Dobson & Van Londen (2005) FLC 93-225 at [42]. This includes the Family Court of Western Australia: Teo v Guan (2015) Fam LR 248 at [106]–[109]. Keen & Scofield [2013] FCCA 540 at [126]; Teo v Guan (2015) Fam LR 248 at [81], [87], [106]; Sahni & Kamdar [2018] FCCA 937 at [85]. Dobson & Van Londen (2005) FLC 93-225; Clayton & Bant (No 2) [2015] FamCA 102; Teo v Guan (2015) Fam LR 248; Allen & Cortez [2016] FamCA 320; Kent & Kent [2017] FamCA 21; Medapati & Revanka (No 2) [2017] FamCA 319.

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court), or in an Australian state or territory court.42 Although these powers arise under s 34 of the Family Law Act 1975 (Cth) and the court’s inherent or implied jurisdiction,43 the principles for the granting of anti-suit injunctions set out by the High Court in CSR Ltd v Cigna Insurance Australia Ltd44 apply in these family proceedings.45 This includes the Family or Federal Circuit Court deciding first that there are no grounds for staying the proceedings before it and, perhaps, that the applicant has already unsuccessfully sought a stay of the proceedings in the foreign, state or territory court.46 As long as these procedural conditions are met, the court must then consider the legal or equitable grounds on which an ant-suit injunction will be granted.47 In Medapati & Revanka (No 2),48 the husband brought property proceedings in country J and sought an anti-suit injunction there against Australian property proceedings, but after the latter had been commenced in Australia. Although the prior quality of the Australian proceedings was a relevant consideration, the husband also failed to give any evidence that would prove the governing law in country J, the enforceability or otherwise of Australian orders, or whether there was any juridical advantage under the law of country J. An anti-suit injunction (and effectively an antianti-suit injunction) was issued restraining the proceedings in J. Anti-suit injunctions have been issued when the applicant had late or no notice of the foreign proceedings or the foreign court’s intent to deliver final judgment, and that the foreign award would be considerably less than an Australian award;49 and when the issues in the Australian and foreign proceedings were identical, the Australian proceedings were going to continue and it would therefore be vexatious and oppressive to allow the foreign proceedings to continue.50 An anti-suit injunction has been refused on the ground that the foreign court would not recognise it,51 although this will usually be the case. The real question is whether the respondent is within the territorial jurisdiction of the court, and so, when the injunction is issued, personally falls under an obligation to discontinue the foreign proceedings.

Stay of trans-Tasman proceedings 16.9  Where the applicant in maintenance proceedings is habitually resident in New Zealand, the Australian court cannot exercise jurisdiction. A stay must be ordered. The Australia-New Zealand Maintenance Agreement has been implemented in the Family

42. 43. 44. 45. 46. 47. 48. 49. 50. 51.

Esmore & Esmore (1979) FLC 90-711; Reynolds v Reynolds (1979) FLC 90-728; Bak & Bak (1980) FLC 90-877; Baba & Jarvinen (1980) FLC 90-882. Teo v Guan (2015) Fam LR 248. (1997) 189 CLR 345. See 4.81–4.89. See 4.89. See 4.87. [2017] FamCA 319. Clayton & Bant (No 2) [2015] FamCA 102. Teo v Guan (2015) Fam LR 248; Allen & Cortez [2016] FamCA 320 at [74]–[77]; Kent & Kent [2017] FamCA 21 at [44]–[51]. Lan & Hao [2016] FamCA 670 at [123]–[127].

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Law Act, and requires an Australian court to stay proceedings in favour of the New Zealand court,52 inevitably the Family Court of New Zealand. 16.10  In any other trans-Tasman family property or maintenance proceedings, the power to grant a stay arises under the Trans-Tasman Proceedings Act 2010 (Cth).53 The parallel maintenance proceedings in Gilmore v Gilmore54 had shown that it was possible, given Australia’s uniquely narrow approach to the doctrine of forum non conveniens, for an Australian court and a New Zealand court each to decide that it should properly exercise jurisdiction in the one matter — and so for different decisions about maintenance potentially to be given in each country.55 Gilmore was cited in the Trans-Tasman Working Group’s Report as a reason why the two countries should have an identical standard of forum non conveniens,56 and that recommendation was implemented in the Trans-Tasman Proceedings Act. The Act gives an Australian court a discretion to stay proceedings in favour of a New Zealand court where the New Zealand court has jurisdiction to determine ‘the matters in dispute’ and it is the more appropriate court to determine them.57 In Nevill & Nevill,58 the Full Court of the Family Court (May, Ryan and Murphy JJ) rejected the argument that the principles applicable to a stay of proceedings in a family matter under the Trans-Tasman Proceedings Act differed from those applicable in commercial proceedings.59 The wife had argued that application of the law of Australia to the property dispute was more likely to be of advantage to her, but the Full Court considered that, within the context of the trans-Tasman relationship, ‘the role for advantage or disadvantage emanating from asserted potential outcomes by reference to the law of each forum may have a very limited role, if indeed it has any role at all.’60 The trial judge had assessed the contacts the parties had with New Zealand and Australia, and found they overwhelmingly favoured a New Zealand court as the more appropriate. New Zealand was the country of which the parties were nationals, the place where they had mostly cohabited, the location of almost all of their property, the place where the trustees of their respective trusts were resident, and the place where the property had been accumulated.61 The Full Court held that the trial judge had rightly stayed the Australian proceedings.62 16.11  An anti-suit injunction may not be issued to restrain New Zealand property or maintenance proceedings on forum grounds.63 52. 53. 54. 55. 56.

57. 58. 59. 60. 61. 62. 63.

Family Law Act 1975 (Cth) s 111AA(2); eg Marsh & Marsh [2014] FCCA 132; see 16.20. Cf Child Support Registrar & Higgins [2016] FamCAFC 2 at [58]. See 4.55–4.57. [1993] FLC 92-353; see 16.7. See also Gilmore v Gilmore [1993] NZFLR 561. Australia (Attorney-General’s Department) and New Zealand (Ministry of Justice), Trans-Tasman Court Proceedings and Regulatory Enforcement — A Report by the Trans-Tasman Working Group, AttorneyGeneral’s Department, Canberra, 2006, p 18. Trans-Tasman Proceedings Act 2011 (Cth) s 19; see 4.55–4.57. [2016] FamCAFC 41. At [13]. At [45]. At [38]. At [38]; see also Bligh & James [2018] FamCA 187. Trans-Tasman Proceedings Act 2011 (Cth) s 22.

429

16.12

Private International Law in Australia

Courts 16.12  The courts that can deal with property and maintenance proceedings between parties to a marriage are largely those that deal also with principal relief in family matters.64 These are the Family Court of Australia or, in Western Australia, the Family Court of that state.65 The Northern Territory Supreme Court exercises its concurrent jurisdiction with the Family Court so long as one of the parties is ordinarily resident in the territory.66 Under the Cross-vesting Acts, the other state and territory Supreme Courts also have the Family Courts’ jurisdiction to hear and determine proceedings for dissolution and annulment.67 For the most part, however, the Supreme Courts are likely to transfer family property proceedings to the Family Court.68 The Federal Circuit Court may also deal with proceedings for property and maintenance orders, as can a state or territory court of summary jurisdiction.69 16.13  The same courts can deal with proceedings for property and maintenance relating to de facto partners, although, as questions that arise between de facto partners in Western Australia are still dealt with under state legislation, the Family Law Act 1975 (Cth) does not confer that jurisdiction on the Family Court of Western Australia.70

Choice of law 16.14  As is typical in matrimonial and other family matters, the law of the cause for multistate property and maintenance questions is the law of the forum.71 Here, family property proceedings differ markedly from ordinary property proceedings where the law of the place where the property is situate (the lex situs) predominates or, in succession cases involving movable property, the law of the place of the deceased’s last domicile (lex domicilii) has a significant role governing issues in dispute.72 Rules and principles of jurisdiction and of recognition and enforcement play a much more significant role in ensuring that the law of the forum is not applied inappropriately to property and maintenance issues that are only remotely connected with it.73 16.15  If a maintenance order is one that was within the Hague Convention on the Law Applicable to Maintenance Obligations, the convention itself provides that the law of the cause for maintenance obligations is to be the law of the place of the maintenance creditor’s habitual residence.74 This convention is, however, not yet implemented in Australia.75 64. 65. 66. 67. 68. 69. 70. 71.

72. 73. 74. 75.

See 14.11. Family Law Act 1975 (Cth) ss 39(1)(a), 41. Family Law Act 1975 (Cth) s 39(8). See 2.30. Eg, Agarwal v Bagga [2016] NSWCS 1402; M v L [2017] SASC 39 at [71]–[92]. Family Law Act 1975 (Cth) s 39(1A)–(2). Family Law Act 1975 (Cth) ss 39B, 39F. Sealey v Callan [1953] P 135; In the Marriage of Cain (1987) 11 Fam LR 540; Gilmore v Gilmore [1993] FLC 92-353; A v S (Financial Relief after Overseas US Divorce) [2002] EWHC 1157 at [78]–[80]; M v L (Financial Relief after Overseas Divorce) [2003] EWHC 328 at [39]. See Chapters 20–22. See, for example, Pagliotti v Hartner (2009) 41 Fam LR 41; [2009] FamCAFC 18. Hague Convention on the Law Applicable to Maintenance Obligations 1973 Art 4. See 16.18.

430

Property and Maintenance



16.16

Recognition and enforcement of foreign property and maintenance orders Property orders 16.16  The recognition or enforcement of orders relating to property division made by foreign courts in the exercise of a family jurisdiction is in Australia subject to general principles of recognition and enforcement.76 This is not without its difficulties. Where the order is for the payment of money, the order is capable of recognition and enforcement so long as the usual preconditions for the enforcement of a foreign judgment against the judgment debtor/defendant are satisfied. The rationale for this was spelt out by the Full Court of the Federal Court in LFDM v SM (No 3),77 an application to set aside the registration under the Trans-Tasman Proceedings Act of a New Zealand judgment relating to the division of the property of a de facto couple. Among other unsuccessful objections, the applicant argued that, as a de facto couple’s financial cause under the Family Law Act, the matter was within the jurisdiction of the Family Court of Australia and not the Federal Court.78 Besanko, Jagot and Lee JJ held that the question was not one that in Australia arose under the Family Law Act. It was a matter in Australia for the registration of a New Zealand judgment that had quelled a New Zealand controversy. This was not a matter within the jurisdiction of the Family Court,79 and registration properly took place in the Federal Court. Enforcement of property orders under the usual law for enforcing foreign judgments certainly seems to be available for orders relating to movable property.80 However, property orders often require the division of immovable property, and for any foreign judgment (other than one from New Zealand)81 this could create problems for recognition in Australia. In In the Marriage of Miller and Caddy,82 the Full Court of the Family Court nevertheless recognised a Californian order for property division on the basis that it satisfied the usual conditions for recognition of judgments made in personam. The Californian order had required the husband to pay money to the wife to satisfy the demands of the law of California for an equal division of property, and so it was a judgment for the payment of a fixed sum. However, the couple also owned a home unit in New South Wales which was not converted into cash for the property division. Instead, the California court confirmed the husband’s and wife’s equal shares in the unit (not being bound under its own law by anything equivalent to the Moçambique rule). The Full Court held that the wife could not reopen the question of equal ownership of the unit in Australian proceedings. The Californian order was recognisable as a judgment in personam and, on that ground, created an issue estoppel that prevented the wife from disputing it.

76. 77. 78. 79. 80. 81. 82.

See Chapter 5; In the Marriage of Gilmore [1993] FamCA 3 at [69]. [2017] FCAFC 178. At [56]–[57]. At [59]–[63]. Kemeny v Kemeny (1998) 23 Fam LR 105. Cf the comments of Fogarty J in In the Marriage of Gilmore [1993] FamCA 3 at [111], but this case was decided before the Trans-Tasman Proceedings Act 2010 (Cth) was passed. See 5.6. (1980) 10 Fam LR 858.

431

16.17

Private International Law in Australia

16.17  Apart from the difficulties of enforcement orders relating to some kinds of property, the reliance in Australia on the general principles of recognition and enforcement independently of those relating to principal relief could create some problems. Given that it is reasonably common for the jurisdictional grounds for the granting of principal relief to differ from those for the exercise of personal jurisdiction, this could lead to the recognition in Australia of an annulment or divorce but not of the ancillary property relief. It has been held in England that the recognition of orders of ancillary relief should be available wherever the principal relief is recognised.83 Although this view has been the subject of serious criticism, the criticism is largely on the ground that the legal character of ancillary relief better approximates foreign judgments made in the exercise of in personam jurisdiction.84 It does not deal with the unsatisfactory policy of recognising an order for principal relief but refusing recognition of an ancillary property order. The possibility of having the grounds of recognition for annulments or divorces available as an alternative ground of recognition for property orders is at least worthy of further consideration.

Maintenance 16.18  Securing the enforcement of domestic maintenance orders is problematic enough; it becomes even more difficult to enforce the maintenance order when a border is available to avoid its payment. As a result (and unlike the position for property orders), the Family Law Act makes extensive provision for the recognition of foreign maintenance orders. There is further provision for the enforcement of foreign maintenance obligations under the Child Support (Registration and Collection) Act 1988 (Cth), and the Family Law Act itself implements the Australia–New Zealand Agreement of 2000 on maintenance obligations.85 The Family Law Act also gives power to make regulations for: • the registration and enforcement in Australia of maintenance orders made by overseas courts of countries that had reciprocating arrangements;86 • the registration and enforcement in Australia of overseas maintenance agreements and of overseas administrative assessments of maintenance liabilities;87 • the transmission of maintenance agreements and financial agreements made under the Family Law Act;88 • the implementation of the Convention on the Recovery Abroad of Maintenance 1956;89 • the implementation of the Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations 1973;90 and

83. 84. 85. 86. 87. 88. 89. 90.

Phillips v Batho [1913] 3 KB 25 at 32; Simons v Simons [1939] 1 KB 490 at 499. H E Read, Recognition and Enforcement of Foreign Judgments in the Common Law Units of the British Commonwealth, Harvard University Press, Massachusetts, 1938, pp 264–7. Family Law Act 1975 (Cth) s 111AA. Family Law Act 1975 (Cth) s 110. Family Law Act 1975 (Cth) s 110A. Family Law Act 1975 (Cth) s 110B. Family Law Act 1975 (Cth) s 111. Family Law Act 1975 (Cth) s 111A.

432



Property and Maintenance

16.20

• the implementation of the Australia–United States Agreement 2002 for the enforcement of maintenance (support) obligations.91 The Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations came into force for Australia in 2002, but the Federal Government has not yet made regulations to implement it.92 This Convention was also ‘modernised’ by the Hague Conference on Private International Law in the Protocol of 2007 on the Law Applicable to Maintenance Obligations, but no provision has been made in the Family Law Act to allow implementation of the Protocol. However, the Child Support Act is to give effect to Australia’s international obligations, and covers most of the commitments that would have to be made under the Hague Maintenance Convention.93 The government has also made regulations to give effect to the other provisions for recognising and enforcing international maintenance orders and agreements, including the Convention on the Recovery Abroad of Maintenance that was concluded in New York in 1956 (‘the New York Maintenance Convention’) and the Agreements with New Zealand and the United States.

Overseas maintenance orders registered before 1 July 2000 16.19  The Family Law Act provides that the Federal Government may make regulations for the registration and enforcement of maintenance orders made by courts from reciprocating jurisdictions.94 The regulations made to give effect to this power are still in force, but orders have not been registrable under these regulations since 1 July 2000. They provide for the involvement of the Secretary of the federal Attorney-General’s Department in the reception of documents about overseas maintenance orders or agreements, the notification of the respondent, and either the registration or the confirmation of the maintenance order by the court. Once confirmed by an Australian court, the order ‘is enforceable in Australia, as so confirmed, and has effect in Australia as if it were an order made under the Act’.95

Overseas maintenance orders registered from 1 July 2000 16.20  From 1 July 2000, maintenance orders in general have been dealt with under the Child Support (Registration and Collection) Act 1988 (Cth). The procedure is that a maintenance order, a registered maintenance agreement or a maintenance assessment issued by an administrative authority of a ‘reciprocating jurisdiction’ may be registered with the Child Support Registrar.96 The scheme introduced by the Child Support Act has extensive international coverage. The reciprocating jurisdictions are Algeria, Argentina, Austria, Barbados, Belarus, Belgium, Bosnia and Herzegovina, Brazil, Brunei, Burkina Faso, Canada (Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and 91. 92.

93. 94. 95. 96.

Family Law Act 1975 (Cth) s 111AB. The present parties to this convention are Albania, Andorra, Australia, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Italy, Lithuania, Luxembourg, The Netherlands, Norway, Poland, Portugal, Slovakia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom. Child Support (Registration and Collection) Act 1988 (Cth) s 3(1)(c). Family Law Act 1975 (Cth) s 110. Family Law Regulations 1984 (Cth) reg 28B(3). Child Support (Registration and Collection) Act 1988 (Cth) ss 18A, 25(1)–(1A).

433

16.20

Private International Law in Australia

Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, Prince Edward Island, Saskatchewan and Yukon), Cape Verde, Central African Republic, Chile, Colombia, Cook Islands, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Estonia, Fiji, Finland, Former Yugoslav Republic of Macedonia, France, Germany, Greece, Guatemala, Haiti, The Holy See, Hong Kong, Hungary, India, Ireland, Israel, Italy, Kazakhstan, Kenya, Kyrgyzstan, Liberia, Lithuania, Luxembourg, Malawi, Malaysia, Malta, Mexico, Moldova, Monaco, Montenegro, Morocco, Nauru, The Netherlands, New Zealand, Niger, Niue, Norway, Pakistan, Papua New Guinea, Philippines, Poland, Portugal, Romania, Samoa, Serbia, Seychelles, Sierra Leone, Singapore, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Tanzania (excluding Zanzibar), Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Kingdom (including Alderney, Gibraltar, Guernsey, Isle of Man, Jersey and Sark), United States of America, Uruguay, Zambia and Zimbabwe.97 If the Registrar considers that the maintenance obligation satisfies the terms of the Act, the Registrar must enter its details on the Child Support Register within 90 days.98 The feature of the Act that is designed to assist the recovery of maintenance is that, once the maintenance obligation is registered, the payments that are to be made become debts due to the Commonwealth, and so recoverable by Federal Government action.99 The government collects the maintenance and remits it to the person being maintained. However, the parties can also opt to take the involvement of the Commonwealth out of the recovery process, and have the debt made directly due and payable to the person who, under the foreign maintenance arrangements, is supposed to receive it.100 The Child Support Act makes provision for the variation of the maintenance obligation, and for discharging or suspending maintenance payments.101

New York Maintenance Convention 16.21  The Child Support Act’s coverage and its more efficient procedures for  the recovery of maintenance mean that other mechanisms for the enforcement of international maintenance obligations are largely left to less significant residual roles. The Convention on the Recovery Abroad of Maintenance (‘the New York Maintenance Convention’) provides for the enforcement in a convention country of a maintenance obligation that is recognised under the convention country’s own law. The role of the New York Maintenance Convention is to assist people who are resident in another convention country to enforce what is in effect a domestic maintenance obligation of the first convention country. The convention is given effect in Australia under the Family Law Regulations 1984 (Cth).102 The other convention countries listed in the Regulation are Algeria, Argentina, Austria, Barbados, Belarus, Belgium, Bosnia and Herzegovina, Brazil, Burkina Faso, Cape Verde, Central African Republic, Chile, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Estonia, Finland, Former Yugoslav Republic of Macedonia, France, Germany, Greece, Guatemala, Haiti, The Holy See, Hungary, 97. 98. 99. 100. 101.

Child Support (Registration and Collection) Regulations 2018 (Cth) reg 5, Sch 2. Child Support (Registration and Collection) Act 1988 (Cth) ss 25A(4), 26. Child Support (Registration and Collection) Act 1988 (Cth) s 30(1). Child Support (Registration and Collection) Act 1988 (Cth) ss 38A, 38C. Child Support (Registration and Collection) Act 1988 (Cth) s 36; cf Newbeld & Newbeld [2007] FamCA 1483; Pabiyanov & Pabiyanova [2018] FamCA 168. 102. Family Law Regulations 1984 (Cth) regs 40–56.

434



Property and Maintenance

16.22

Ireland, Israel, Italy, Luxembourg, Mexico, Monaco, Morocco, The Netherlands, Niger, Norway, Pakistan, Philippines, Poland, Portugal, Romania, Serbia and Montenegro, Slovak Republic, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Tunisia, Turkey, the United Kingdom and Uruguay.103 Under the New York Maintenance Convention, there is a network of Transmitting and Receiving Agencies that assist people resident in convention countries to enforce maintenance obligations in other convention countries. For Australia, the Transmitting and Receiving Agency is the Secretary of the Attorney-General’s Department. The Transmitting and Receiving Agency of another convention country may apply to the Secretary for the recovery of maintenance that is payable under Australian law or for the variation of an Australian order for maintenance.104 If the Secretary believes on reasonable grounds that a person within an Australian jurisdiction is obliged to make payments under those maintenance orders, the Secretary may take any step necessary to recover the maintenance from that person.105 The Secretary can also exercise any of the rights that the person who is entitled to receive the maintenance would be able to exercise in relation to the maintenance, including anything that needs to be done in legal proceedings.106 However, the Regulations provide that the Secretary cannot apply for a maintenance order or take any other step that would otherwise be dealt with under the Child Support Act.107 The New York Maintenance Convention also provides for the taking of evidence required for maintenance proceedings and, compatible with those obligations, the Secretary may, at the request of another Transmitting and Receiving Agency, take evidence that can be used to support maintenance proceedings in another convention country.108

Australia–New Zealand Agreement 16.22  The Australia–New Zealand Agreement on maintenance obligations was concluded in 2000, and is implemented in express terms in the Family Law Act.109 For Trans-Tasman maintenance questions, the country where the person who is to receive maintenance payments is habitually resident is to address the principal questions of maintenance. Accordingly, if the person to receive maintenance is habitually resident in New Zealand, an Australian court must not exercise any jurisdiction in maintenance proceedings relating to that person.110 New Zealand maintenance orders are registrable under the Child Support Act. The intention of the Australia–New Zealand agreement is that there is no need for the registration of New Zealand orders for them to be recognised or enforceable by legal proceedings in Australia.111 Maintenance orders are expressly excluded from registration under the Trans-Tasman Proceedings Act 2010 (Cth).112 103. 104. 105. 106. 107. 108. 109. 110. 111.

Family Law Regulations 1984 (Cth) reg 48, Sch 4. Family Law Regulations 1984 (Cth) reg 50(1). Family Law Regulations 1984 (Cth) reg 50(2). Family Law Regulations 1984 (Cth) reg 50A. Family Law Regulations 1984 (Cth) reg 50A(3). Family Law Regulations 1984 (Cth) reg 53. Family Law Act 1975 (Cth) s 111AA. Family Law Act 1975 (Cth) s 111AA(2); see 16.9. Agreement between the Government of Australia and the Government of New Zealand on Child and Spousal Maintenance Art 7 (done at Canberra, 12 April 2000). The Agreement is found in Sch 1 of the Child Support (Registration and Collection) Regulations 2018 (Cth). 112. Trans-Tasman Proceedings Act 2010 (Cth) ss 4, 66(2)(a).

435

16.23

Private International Law in Australia

Australia–United States Agreement 16.23  There are also provisions in the Family Law Regulations giving effect to the Australia–United States Agreement of 2002 that relate to maintenance obligations.113 These Regulations supplement the provisions of the Child Support Act. Again, Australia’s obligations under the agreement are administered by the Secretary of the Attorney-General’s Department. The aim is once more to invoke Federal Government intervention against a person who, under the law of an American state or territory, has an obligation to make maintenance payments. The procedure is that the Secretary is to be sent a petition filed in a court in the United States, and a certificate issued by an American court to the effect that the person is obliged to pay maintenance in accordance with the law of the relevant American state or territory. At that point, the Secretary must call on the person to show cause as to why the maintenance orders sought in the petition should not be made.114 If proceedings are brought in an Australian court, that person can raise any defence available under the relevant American law, or under the Family Law Act, to resist the petition.115 The court can make an order for maintenance, whether within the terms of the petition or otherwise, or refuse to award maintenance.116 However, the court cannot proceed if enforcement of maintenance obligations could be pursued within the terms of the Child Support Act.117

113. Agreement between the Government of Australia and the Government of the United States of America for the Enforcement of Maintenance (Support) Obligations (signed at Canberra, 12 December 2002). 114. Family Law Regulations 1984 (Cth) reg 28C. 115. Family Law Regulations 1984 (Cth) reg 28D(2). 116. Family Law Regulations 1984 (Cth) reg 28D(5). 117. Family Law Regulations 1984 (Cth) reg 28D(3).

436

PART 5 Choice of Law for Obligations

Chapter 17 Contracts The scope of the proper law 17.1  The law of the cause for most issues involving a multi-state contract is ‘the proper law of the contract’. The term ‘proper law’ is an older descriptor for the governing law or the law of the cause throughout private international law. While now only occasionally used as such in other areas of law, the term has acquired a technical meaning in the law of contract. Where legislation does not provide otherwise, the common law deems the law of some place — whether the forum or another country or state — to control the interpretation and effect of every contract and to govern its operation as its applicable or ‘proper’ law. This is based on the theory that parties who make a contract do so with the intention of creating legally enforceable rights and obligations. In a real sense, of course, the contract must be the product of the will of the parties. However, the common law has denied that the parties’ will is sufficient to make their promises enforceable. They are assumed to make these promises by reference to a recognised system of positive law, and so a proper law is assigned to the contract.1 This only leads us to the question of how to determine the proper law, a question addressed in more detail below.2

1.

2.

Amin Rasheed Shipping Corp v Kuwait Insurance Co [1984] AC 50 at 60. The proper law probably could not be a non-national system of law, such as the lex mercatoria, Sharia or Jewish law, unless the non-national system is specifically incorporated into a municipal system of law: Shamil Bank of Bahrain EC v Beximco Pharmaceuticals Ltd [2004] 2 Lloyd’s Rep 1 at 11; Halpern v Halpern [2008] QB 195 at 208. The decisions in both these cases were based on the specific wording of the Rome Convention Art 1, which contained the relevant rules for contract choice of law in litigation in England at the time. The same view was taken in an Australian case concerning the parties’ ability to select Jewish law: Engel v Adelaide Hebrew Congregation Inc (2007) 98 SASR 402; [2007] SASC 234 at [36]. The point was not taken in the more recent decision of Re South Head & District Synagogue (Sydney) (Administrators Appointed) [2017] NSWSC 823. The parties may incorporate specific, certain, identifiable rules of non-municipal law, such as Jewish law, as terms of the contract itself: Halpern v Halpern [2008] QB 195 at 211–13; Engel v Adelaide Hebrew Congregation Inc (2007) 98 SASR 402; [2007] SASC 234 at [36]; Re South Head & District Synagogue (Sydney) (Admin Apptd) [2017] NSWSC 823. Article 3 of the Hague Principles on Choice of Law in International Commercial Contracts 2015 (approved 19 March 2015), which is a non-binding instrument intended to promote uniformity in choice of law for contract, permits the choice of ‘rules of law that are generally accepted on an international, supranational or regional level as a neutral and balanced set of rules, unless the law of the forum provides otherwise’. The Commentary on the Hague Principles gives as an example the UNIDROIT Principles of International Commercial Contracts: Hague Conference on Private International Law, Commentary on the Hague Principles on Choice of Law for International Commercial Contracts, 2015, para 3.6. The current Australian law would probably prohibit such a choice. See 17.6–17.19.

439

17.2

Private International Law in Australia

17.2  In Australia, legislation has modified the operation of the proper law for certain types of multi-state contract cases. Contracts for the international carriage of goods by sea are dealt with in accordance with international conventions. Some contracts for the international sale of goods are presumed to be governed by an international convention,3 but the parties are entitled to opt out of the convention4 and expressly select the proper law themselves. In other kinds of contracts, including insurance, consumer sales and credit transactions, legislation has significantly modified the operation of the proper law.5 The proper law remains the law of the cause for most multi-state contract cases, and can have a role to play even in these cases where legislation has substantially reformed the common law of contract. Under Australian law, it is only in contracts for the international carriage of goods by sea that the proper law might never be applied as the law of the cause for a contract as a whole.

Classification 17.3  The concept of the proper law is relevant where the subject matter of the case is a contractual right or obligation allegedly made between the parties by agreement. Obviously, this includes agreements possibly governed by the law of a civil law country in which a promise might be regarded as enforceable without consideration. Quasi-contractual and some other obligations are also probably governed by a proper law. These include: • claims for moneys had and received;6 • claims in quantum meruit; • actions brought directly against an insurer under compulsory third party insurance schemes;7 and • actions for an indemnity.8 The concept of the proper law has also been adopted as the choice of law rule for trusts made between living persons, and probably also for testamentary trusts in international cases. It is also possible to interpret Kelly v Selwyn9 as supporting the principle that a question of the priority of interests in a debt is governed by the proper law of the transaction that created the debt. The weight of authority used to be against this,10 but in Raiffeisen Zentralbank Osterreich AG v Five Star Trading LLC11 the English Court of Appeal held that the validity of a notice of assignment of rights under a marine insurance contract should be determined by the proper law of the contract of insurance. This is analogous 3.

4. 5. 6. 7. 8. 9. 10. 11.

United Nations Convention on Contracts for the International Sale of Goods 1980 (referred to as the ‘CISG’ or the ‘Vienna Sales Convention’) Art 1(1). This convention is given effect in Australia by state and territory legislation: see, for example, Sale of Goods (Vienna Convention) Act 1986 (NSW). Ibid, Art 6. See 17.45–17.53. Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32. Plozza v South Australian Insurance Co Ltd [1963] SASR 122; Hodge v Club Motor Insurance Agency Pty Ltd (1974) 7 SASR 86; see also 18.36. Sweedman v Transport Accident Commission (2006) 226 CLR 362; [2006] HCA 8 at [29]; see also 18.38–18.39. [1905] 2 Ch 117. See 21.21–21.34. [2001] QB 825; [2001] EWCA Civ 68.

440

Contracts

17.5

to the question dealt with in Kelly v Selwyn. Although in Raiffeisen this conclusion was reached by application of the provisions of the European Union’s Rome Convention, there are good reasons why this should be regarded as the better approach at common law.12 If the question of the validity of the notice were regarded as one of property, the governing law would change with the place of the debtor’s (here, the insurer’s) residence.13 And if it were regarded as a matter for the proper law of the contract of assignment, if the insured party attempted on a number of occasions to assign the benefit of the contract there would be a risk that each assignment would, under the proper law of the contract of assignment, be valid. This would give no way of judging which assignment should have priority. The governing law that does give certainty to the question of the validity of the notice of assignment, and of priority between competing assignments, is the proper law of the original contract of insurance.14

Time of attribution 17.4  A proper law must be attributed to a contract as at the time it is made.15 It is also assumed that the contract is to be governed and interpreted by the proper law as a living system of law. Therefore, where the proper law of a contract is the law of Hentzau, changes to the law of Hentzau after the contract is made are considered applicable in determining rights and obligations under the contract.16 It is unlikely that changes made in the law of Hentzau after proceedings have been commenced will be thought relevant to the case.17 The relevant time for determining the precise content of the proper law applicable to the contract is therefore the time at which proceedings in relation to the contract are commenced.

Renvoi 17.5  In the past, there seemed to be little opportunity for the doctrine of renvoi to apply in a multi-state contract case.18 Where the parties validly choose, for example, the law of Hentzau as the proper law of the contract, it is reasonable to assume they have chosen the internal law of Hentzau to govern rights and obligations arising under the contract. It is not likely that the parties would choose the law of Hentzau, intending that, under the law of Hentzau, questions arising from the contract be remitted for determination to the law of the forum or transmitted to the law of Ruritania.19 The authority that does exist on this point also suggests that even where, for example, the law of Hentzau is held by reference to objective criteria to be the proper law of a contract, it is the internal law of Hentzau alone that comprises the proper law.20 The decision of the High Court in Neilson 12. 13. 14. 15. 16. 17. 18. 19. 20.

Cf R Stevens and T H D Struycken, ‘Assignment and the Rome Convention’ (2002) 118 Law Quarterly Review 15 at 20. See 20.10–20.15. P Rogerson, ‘Choice of Law — Notice of Assignment’ [2001] Cambridge Law Journal 14. See 17.20–17.24. Kahler v Midland Bank Ltd [1950] AC 24; Zivnostenska Banka National Corp v Frankman [1950] AC 57. Cf New Brunswick Railway Co v British & French Trust Corp [1939] AC 1 at 24. See 8.20. Cf Amin Rasheed Shipping Corp v Kuwait Insurance Co [1984] AC 50 at 61–2. Re United Railways of Havana and Regla Warehouses Ltd [1960] Ch 52 at 97; cf Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277 at 291.

441

17.5

Private International Law in Australia

v Overseas Projects Corp of Victoria Ltd21 to apply the doctrine of renvoi in a multi-state tort case requires reconsideration of the traditional view.22 Prior to Neilson, the doctrine of renvoi was generally not thought applicable in tort claims. The High Court’s willingness to apply renvoi in new fields suggests the possibility that it could be invoked in a contract case, especially where the proper law is identified by objective criteria. The High Court did not give any clear indication as to the implications of its decision in Neilson in areas other than multi-state torts.23 The Western Australian Court of Appeal took the view that renvoi might be applicable in an international contract case — and given Neilson it is submitted that it did so correctly — in O’Driscoll v J Ray McDermott SA.24 This was a personal injuries claim arising from an alleged breach of an employment contract. The employer was a Paraguay-registered corporation and the employee was Western Australian. The contract of employment was made in Singapore for work to be done in different places in South-East Asia. There was a six-year limitation period applicable to the claim in Western Australia but, subject to the possibility of an extension, a three-year limitation period in Singapore. The  claim would have been time-barred by the law of Singapore. At trial in the District Court of Western Australia, it was concluded that, absent a choice of proper law by the parties,25 the proper law of the contract had to be determined by objective criteria, and these suggested that the proper law was the law of the Republic of Singapore.26 In the Court of Appeal, the relevance of Singapore’s choice of law rules was raised. These differed from Western Australia’s in only one respect. It was concluded that Singapore’s choice of law rules for contract would also select the law of Singapore as the proper law but, unlike Western Australia, in Singapore a statute of limitations would tend to be classified as procedural, and governed by the law of the forum. In O’Driscoll, this would not lead to conflicting choice of law rules as the Western Australian classification of the limitation question as substantive would have it governed by Singaporean law, and the Singaporean classification of the question as procedural would (if a Singaporean court were the forum) also have the question governed by Singaporean law. No renvoi therefore arose on the facts in O’Driscoll. It is significant, though, that the Court of Appeal believed that Singapore’s choice of law rules had to be examined and, concluding that they did not give a conflicting result to those of Western Australia, did not have to deal with the problem of renvoi.27 McLure JA held that, if there was evidence of (2005) 223 CLR 331; [2005] HCA 54. In Proactive Building Solutions v Keck, McDougall J stated that it was ‘clear that the decision in Neilson is limited to the choice of law rules for tort’, and that if the implication of Neilson was that the orthodox view in relation to choice of law for contract, that renvoi was inapplicable, ‘should be varied or supplemented, that seems to me to be a matter for an appellate court’: [2013] NSWSC 1500 at [28]. His Honour did not refer to O’Driscoll v J Ray McDermott SA [2006] WASCA 25. 23. M Keyes, ‘Foreign Law in Australian Courts: Neilson v Overseas Projects Corporation of Victoria Ltd’ (2007) 15 Torts Law Journal 9 at 30–2. 24. [2006] WASCA 25. 25. See 17.7–17.14. 26. O’Driscoll v J Ray McDermott [2001] WADC 198 at [14]–[16]. 27. [2006] WASCA 25 at [59]–[60]. Murray AJA concluded that, in the absence of evidence of Singapore’s approach to renvoi, it should be assumed to be the same as Australia’s: at [60]. His Honour therefore concluded that ‘the problem of renvoi could be ignored’. However, the only reason why renvoi could be ignored is that the evidence showed that Singapore’s choice of law rule was the same as that of the 21. 22.

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conflicting choice of law rules, she would have approved the admission of further evidence concerning Singapore’s approach to renvoi.28 The Court of Appeal therefore concluded that the contractual claim in O’Driscoll was out of time under its proper law. But the court’s method plainly rests on the assumption that the doctrine of renvoi was applicable in the case. So, at least where the proper law is to be objectively determined, this case suggests that renvoi is applicable in multi-state contract cases. Renvoi is not applicable if the proper law is expressly or impliedly chosen by the parties.29 It is increasingly common that choice of law clauses explicitly exclude the application of ‘choice of law’, ‘conflict of laws’ or ‘private international law’ rules of the selected legal system, and it is recommended that such a statement is included. In practice, the issue as to the application of renvoi to contract is almost always ignored.

The determination of the proper law 17.6  The proper law is the law which the parties intended to apply, or if their intention cannot be determined, it is the law of the place that has the closest and most real connection to the contract.30 It is necessary first to determine whether the parties’ actual intention is expressed or can be inferred from the nature and circumstances of the agreement. The law which the parties actually intended to govern their contractual relationship is referred to as the ‘subjective proper law’. The difference between the expressed and implied subjective proper law is only evidential.31 If the parties have not expressed their mutual intention, and their intention cannot be inferred, then the court must identify the legal system with which the contract is most closely connected, which is referred to as the ‘objective proper law’ of the contract.32 Each of these is discussed in turn.

Subjective proper law Express choice of proper law 17.7  At common law, an express choice of the governing law is generally effective.33 Normally, this is done by the inclusion of a choice of law clause in the contract. For example, in the leading case of Akai Pty Ltd v The People’s Insurance Co,34 the choice of law clause in the insurance contract stipulated that ‘[t]his policy shall be governed by the law of England’. The principle is illustrated by the Privy Council’s leading decision in Vita Food Products Inc v Unus Shipping Company Ltd.35 In Newfoundland, legislation provided that the Hague Rules were to have force of law, and any bill of lading issued in that dominion was to state expressly

28. 29. 30. 31. 32. 33. 34. 35.

Western Australia forum. If they differed, and it was assumed that Singapore’s approach to renvoi was the same as Western Australia’s, the dreaded problem of stalemate would arise: see 8.34. [2006] WASCA 25 at [17]–[18]. Proactive Building Solutions v Keck [2013] NSWSC 1500 at [27]–[30]. Akai Pty Ltd v The People’s Insurance Co Ltd (1996) 188 CLR 418 at 440–2. Akai Pty Ltd v The People’s Insurance Co Ltd (1996) 188 CLR 418 at 442. R v International Trustee for the Protection of Bondholders AG [1937] AC 500 at 529. Gienar v Meyer (1796) 2 H Bl 603; 126 ER 728. (1996) 188 CLR 418 at 423. [1939] AC 277.

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that it was to have effect subject to the Hague Rules. The bill of lading in question was signed by the defendant shipowner, a Nova Scotian company, and the plaintiff consignee, a New York company, and provided for a consignment of herrings to be shipped from Newfoundland to New York. It incorporated provisions of United States and federal Canadian legislation but neither was applicable to the facts of the case.36 It also exempted the shipowner from liability in negligence, but did not state that it was made subject to the Hague Rules. The Hague Rules themselves exempted the shipowner from liability in negligence. However, the bill of lading was expressed to be governed by the law of England. En route to New York, the ship ran aground and the consignment was damaged. The plaintiff sued the shipowner for negligence in Nova Scotia. Negligence was admitted, but the shipowner relied on the exemption clause as a defence. This plea succeeded in Nova Scotia and, on appeal, in the Privy Council. 17.8  The significance of the decision in Vita Food lies in the Privy Council’s conclusion that the exemption clause was a good defence because it was effective under the proper law as chosen by the parties: that is, the law of England. This was despite the fact that all the physical contacts of the contract and its surrounding circumstances were with North American jurisdictions, and that there was no obvious connection with England. Lord Wright confirmed that the parties’ intention as expressed in the contract was conclusive, and added that ‘it is difficult to see what qualifications are possible, provided the intention expressed is bona fide and legal, and provided there is no reason for avoiding the choice on the ground of public policy’.37 The principle gives the parties to the contract  the greatest autonomy in choosing the law to govern their rights and obligations, the outer limits of which are still to be defined clearly. It has been repeatedly affirmed by the highest authorities.38 The origins of the principle are probably found in 19th century notions of freedom of contract and, seen in that light, the principle is more readily understandable. For example, in Hellenic Lines Ltd v Embassy of Pakistan,39 the parties chose the law of England as the proper law of a contract for the carriage of goods on a Greek ship from Pakistan to the United States. The United States District Court applied the English idea of the consignee’s obligation under the contract to ‘discharge continuously’, despite there being no connection with England. Under principles of freedom of contract, the parties could have instead spelt out in detailed language that the term ‘discharge continuously’ was to have a meaning of equivalent effect to the meaning that it was given under the law of England. Accordingly, what can be achieved legitimately by detailed drafting can also be achieved legitimately by the selection of the proper law. However, there must be some limit to this, especially where a legal system which is connected to the contract imposes obligations that are inconsistent with the chosen law. 36.

37. 38.

39.

The contract stated that the United States Harter Act applied to shipments from the United States and that the bill of lading was subject to the federal Canadian Water Carriage of Goods Act 1910. As Lord Wright noted, the Canadian legislation only applied to shipments from Canadian ports and therefore did not apply, because Newfoundland was a dominion independent of Canada at the time: [1939] AC 277 at 286. At 290. For example, Mount Albert Borough Council v Australasian Temperance & General Mutual Life Assurance Society [1938] AC 224 at 240; James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583 at 603. 307 F Supp 947 (1969).

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Limits to an express choice of proper law 17.9  There are four possible limits to the principle of party autonomy: (1) bad faith; (2)  an unconnected law; (3) overriding legislation; and (4) public policy. Though some doubt attaches to the first two, in general, the problems they are intended to address might also be dealt with by the latter two. Bad faith 17.10  In Vita Food, Lord Wright suggested that the law chosen by the parties will be the proper law of the contract ‘provided the intention expressed is bona fide and legal’.40 The  requirement that the choice be made in good faith is debatable. The only explicit application of the requirement is by Hoare J in Golden Acres Ltd v Queensland Estates Pty Ltd.41 There, the parties entered a contract that created an agency for the sale of land in Queensland. That state’s Auctioneers and Agents Act 1922 required agents for the sale of land to be licensed and so, probably to avoid that requirement, the contract was expressed to be governed by the law of Hong Kong. In an action to recover the agent’s fees, Hoare J applied the provisions of the Auctioneers and Agents Act prohibiting recovery of fees by an unlicensed agent. He held that the law of Hong Kong was not the proper law, it having been chosen in bad faith to avoid the restrictions imposed by Queensland legislation. Golden Acres may well be the sort of case Lord Wright hoped to cover by suggesting his requirement of good faith in Vita Foods. Good faith is, nevertheless, a vague limitation, and even in Golden Acres was unnecessary, as the Auctioneers and Agents Act could have been applied as overriding legislation.42 This limitation has not been directly applied in any other case.43 It should no longer be regarded as good law. Unconnected law 17.11  In some older cases, it was suggested that the law expressly chosen by the parties would not be upheld as the proper law of the contract where the chosen law has no real or substantial physical connection with the contract, its subject matter or the parties.44 These comments are inconsistent with and superseded by more recent decisions directly upholding an unconnected law as the proper law of the contract.45 Upholding the parties’ choice of an unconnected law is consistent with the concept of party autonomy. Indeed, parties from different countries may prefer an unconnected law as being neutral as

40. 41. 42. 43.

44. 45.

[1939] AC 277 at 291. [1969] Qd R 378. See 17.12. In New Zealand Basing Ltd v Brown, the New Zealand Court of Appeal suggested that if the parties were both domiciled in the forum this ‘may well mean a foreign election is not bona fide’: [2017] 2 NZLR 93 at 102 (reversed by the Supreme Court on other grounds: Brown v New Zealand Basing Ltd [2018] 1 NZLR 245). Re Claim by Helbert Wagg & Co Ltd [1956] Ch 323 at 341; Kay’s Leasing Corp Pty Ltd v Fletcher (1964) 116 CLR 124 at 143; Queensland Estates Pty Ltd v Collas [1971] Qd R 75 at 80–1. Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 290 at 291; Compagnie D’Armement Maritime SA v Compagnie Tunisienne De Navigation SA [1971] AC 572; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756; Re Bulong Nickel Pty Ltd (2002) 42 ACSR 52 at 66; [2002] WASC 126; Parnell Manufacturing Pty Ltd v Lonza Ltd [2017] NSWSC 562.

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between them, which often occurs if they actually negotiate choice of law.46 It is therefore unlikely that the courts will invoke this as a limitation on party autonomy. Once more, the courts are only likely to be looking for a reason not to apply an unconnected law when the effect of enforcing the choice would be a result offensive to the legal or moral standards of the forum. In such a case, public policy provides a more acceptable reason for refusing to apply the chosen law, and will do so without complicating the principle of party autonomy as an additional qualification of unconnected laws would. Overriding legislation 17.12  The law expressly chosen by the parties will not be applied as the law of the cause where legislation of the forum47 overrides either the express choice of law or its effect. This is the effect of applying mandatory rules. These fall into two classes. In the first class are legislative provisions that require the court to disregard the parties’ actual choice of foreign law. In Australia, this is exemplified by the Carriage of Goods by Sea Act 1991 (Cth), which provides that a bill of lading relating to the carriage of goods from a place in Australia to a place outside Australia is to be governed by the law in force in the state or territory of shipment. It completely nullifies any actual agreement as to the proper law.48 There is a second class of overriding legislation. This legislation does not directly affect the parties’ choice of law. Instead, the court is required to apply substantive provisions of the relevant legislation regardless of whether the law selected by the parties would demand a different result.49 In other words, priority is given to the effect of the legislation over the effect of the proper law. This is how Golden Acres Ltd v Queensland Estates Pty Ltd50 was dealt with by Menzies J on appeal to the High Court.51 Menzies J suggested that the Queensland Auctioneers and Agents Act could have been applied to prevent the recovery of agents’ fees by its own force and effect. That would mean that the law of Hong Kong could still have been applied as the proper law, except where (as in the question of the recovery of agents’ fees) it dictated a result different to that of the forum legislation. The statutes that could override the law chosen by the parties in this way are too numerous to list. Two of the most important examples are: • the Insurance Contracts Act 1984 (Cth), which applies to all contracts and proposed contracts of insurance (but not reinsurance) the objective proper law of which is the law of a state or territory of Australia.52 The legislation does not completely invalidate the parties’ subjective choice of foreign law, but to the extent of any inconsistency 46. 47. 48. 49.

50. 51. 52.

For example, Akai Pty Ltd v The People’s Insurance Co Ltd (1996) 188 CLR 418; Parnell Manufacturing Pty Ltd v Lonza Ltd [2017] NSWSC 562. Foreign legislation is only applied if it is part of the lex causae: Akai Pty Ltd v The People’s Insurance Co Ltd (1996) 188 CLR 418 at 442. Carriage of Goods by Sea Act 1991 (Cth) s 11. Mynott v Barnard (1939) 62 CLR 68 at 80 (Latham CJ stating: ‘Parties cannot by agreeing that their contract shall be governed by the law of a foreign country exclude the operation of a “peremptory rule” otherwise applicable to their transaction.’) See 17.10. Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418 at 424–6. Insurance Contracts Act 1984 (Cth) s 8; see also Akai Pty Ltd v The People’s Insurance Co Ltd (1996) 188 CLR 418; John Kaldor Fabricmaker Pty Ltd v Mitchell Cotts Freight (Aust) Pty Ltd (1989) 18 NSWLR 172.

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between the substantive provisions of the Insurance Contracts Act and of the chosen law, the provisions of that legislation prevail. This legislation was applied in Akai v The People’s Insurance Co Ltd, to override the express choice of English law;53 and • the ‘consumer guarantees’ in the Australian Consumer Law.54 The Australian Consumer Law stipulates that the guarantees apply to all contracts that would have been governed by the law of any part of Australia ‘but for a term of the contract that provides otherwise’.55 So the law expressly chosen by the parties would still be applied where it did not demand a result inconsistent with the consumer protection laws. These two examples are of statutes which contain self-limiting provisions: that is, they clearly express the circumstances in which they are to be applied. A more complex problem arises where the legislation in question does not contain an express provision which stipulates its scope of application in multi-state cases. That situation is discussed in detail in Chapter 12. Public policy 17.13  The courts will refuse to apply the law expressly chosen by the parties where the effect of applying it would produce a result contrary to the public policy of the forum.56 This is merely one application of the rule applicable to all multi-state cases, whether raising issues of contract or otherwise.57 Under s 118 of the Australian Constitution, the courts cannot invoke public policy as a reason for denying effect to the parties’ express choice as to the proper law where that is the law of another state or territory of Australia.58

Inferred choice of proper law 17.14  If there is no effective express choice of law, the court is required to determine whether there is an actual but unexpressed choice of law. This does not involve the implication of a term, but rather requires construction of the contract as a whole in order to determine whether ‘the court properly may infer that the parties intended their contract to be governed by reference to a particular system of law’.59 Although this ought to be done according to the putative proper law of the contract, in Akai v The People’s Insurance Co the majority referred in general to the law of the forum.60 It might be argued that this 53. 54.

55.

56.

57. 58. 59. 60.

Akai Pty Ltd v The People’s Insurance Co Ltd (1996) 188 CLR 418 at 433. The guarantees apply to the supply of goods and services to consumers. They are set out in Pt 3-2, Div 1 of the Australian Consumer Law, and coordinate legislation of the states and territories. The Australian Consumer Law is found in Sch 2 to the Competition and Consumer Act 2010 (Cth). Australian Consumer Law s 67(a). In addition s 67(b) stipulates that Pt 3-2, Div 1 of the Australian Consumer Law applies notwithstanding a term in a contract for the supply for goods or services which ‘purports to substitute, or has the effect of substituting … the provisions of the law of a country other than Australia’. See further below 17.51. Vita Food Products Inc v Unus Shipping Co [1939] AC 277 at 290; Augustus v Permanent Trustee Co (Canberra) Ltd (1971) 124 CLR 245 at 260; Tzortzis v Monark Line AB [1968] 1 All ER 949 at 951–2; English v Donnelly [1958] SC 494 at 499. See 8.57–8.69. Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd (1933) 48 CLR 565 at 577, 587–8; see also 11.4–11.7. Akai Pty Ltd v The People’s Insurance Co Ltd (1996) 188 CLR 418 at 441. At 441.

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is appropriate, by analogy to the Australian courts’ view about applying forum law to determine the existence of a jurisdiction agreement. No one factor will be conclusive of the parties’ intentions. The following factors may help to identify the parties’ implied intention as to the governing law but, at best, they are indicative of the parties’ intentions. They include: • an exclusive forum clause: The parties’ agreement that litigation is to be exclusively conducted in the courts of a particular place is a strong indication that they intended the law of that place to be the proper law;61 • an arbitration clause: Similarly, the parties’ agreement to arbitrate in a particular place is a ‘weighty’ indication that they intended the law of that place to be the proper law;62 and • technical language: Where a contract is drafted in language more sensibly understood by reference to the law of a particular country than to some other law, it is possible to infer that the parties intended the law of that country to be the proper law.63 There is no limit to the factors that, in the particular circumstances of the case, might assist a court to draw inferences about the parties’ intentions as to the proper law. The court must consider the contract as a whole and its surrounding circumstances in doing so.64

Objective proper law 17.15  In many cases, the parties to a contract will either have no common intention as to the proper law or, if they did, will have failed to leave conclusive evidence of that intention in the terms of the contract. Where the parties’ intentions in this respect are not expressly or by implication to be found in the contract, a court must look to objective factors in order to determine the proper law of the agreement. The language used in the older cases suggests that this involves imputing an intention to the parties as to the proper law.65 However, in an appeal from the High Court of Australia, Bonython v Commonwealth,66 Viscount Simonds ignored all pretence that at this stage the proper law had to have reference to a presumed intention. He  said that the proper law of the contract was ‘the system of law … with which the transaction has its closest and most real connection’.67 That formulation of the basic principle is now generally accepted.68 Although the process by which the objective proper law is determined is very similar 61. 62.

63. 64. 65. 66. 67. 68.

At 442; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 224–5. Akai Pty Ltd v The People’s Insurance Co Ltd (1996) 188 CLR 418 at 436–7; John Kaldor Fabricmaker Pty Ltd v Mitchell Cotts Freight (Aust) Pty Ltd (1989) 18 NSWLR 172 at 187. The arbitration agreement is not always decisive, as in Compagnie d’Armement Maritime SA v Compagnie Tunisienne de Navigation SA [1971] AC 572 at 584, 587–91, 593, 596–600, 604–7. Amin Rasheed Shipping Corp v Kuwait Insurance Co [1984] AC 50 at 64–7. Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd (1933) 48 CLR 565 at 574. Mount Albert Borough Council v Australasian Temperance and General Mutual Life Assurance Society Ltd [1938] AC 224 at 240; R v International Trustee for the Protection of Bondholders AG [1937] AC 500 at 529. [1951] AC 201. At 219. Re United Railways of the Havana and Regla Warehouses Ltd [1961] AC 1007 at 1081; Amin Rasheed Shipping Corp v Kuwait Insurance Co [1984] AC 50 at 61; Weckstrom v Hyson [1966] VR 277 at 284;

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to the process applied to determine the parties’ unexpressed actual intention, in Akai Pty Ltd v The People’s Insurance Co Ltd, the High Court rejected suggestions that there is no real difference between identifying an actual though unexpressed intention and determining the objective proper law.70 69

17.16  In determining the legal system with which the contract has its closest and most real connection, the terms of the contract as a whole and the circumstances surrounding it at the time it was formed must be taken into account. It is more than a matter of counting the number of contacts the contract and its circumstances have with the relevant legal systems; the significance of these contacts must also be evaluated. In Re United Railways of the Havana and Regla Warehouses Ltd,71 Jenkins LJ included among the principal considerations ‘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’.72 These are likely to be prominent, although they need not always be significant. Other factors which may be relevant include the currency in which payments were to be made,73 the location of the land in a contract relating to land,74 the place where the relationship between the parties is centred,75 and the location of the subject matter of the contract.76 17.17  This process for determining the proper law by reference to objective criteria has made the old presumptions for identifying the proper law irrelevant as anything but factors to be weighed with others. The law of the place where the contract was made (lex loci contractus) was sometimes presumed to be the law the parties adopted to govern the contract.77 In Fleming v Marshall, Macfarlan JA, with whom the other members of the New South Wales Court of Appeal agreed on this point, stated that the place of contracting will, in general, ‘only be of real significance where a transnational contract was concluded at a face-to-face meeting at the place of residence or business of one of the parties’,78 noting that the place of contracting

69.

70. 71. 72. 73.

74. 75. 76. 77. 78.

Mendelson-Zeller Co Inc v T & C Providores Pty Ltd [1981] 1 NSWLR 366 at 368; Busst v Lotsirb Nominees Pty Ltd [2003] 1 Qd R 477; [2002] QCA 296. In some cases, where there is no express choice of law, the court proceeds to determine the objective proper law without referring at all to the possibility of there being an implied choice of law: see, for example, Busst v Lotsirb Nominees Pty Ltd [2003] 1 Qd R 477; [2002] QCA 296; Attorney-General of Botswana v Aussie Diamond Products Pty Ltd (No 3) [2010] WASC 141 at [207]. (1996) 188 CLR 418 at 440. [1960] Ch 52. At 91. Akai Pty Ltd v The People’s Insurance Co Ltd (1996) 188 CLR 418 at 437; Mendelson-Zeller Co Inc v T & C Providores Pty Ltd [1981] 1 NSWLR 366; Attorney-General of Botswana v Aussie Diamond Products Pty Ltd (No 3) [2010] WASC 141 at [207]. Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd (1933) 48 CLR 565 at 576. X, Y and Z v The Bank [1983] 2 Lloyd’s Rep 535 at 543. THC Holding Pty Ltd v CMA Recycling Pty Ltd (Admin Apptd) (2014) 101 ACSR 202; [2014] NSWSC 1136 at [72]. Lloyd v Guibert (1865) LR 1 QB 115 at 122. (2011) 279 ALR 737 at 751–2; [2011] NSWCA 86. See also Australian Competition and Consumer Commission v Valve (No 3) (2016) 337 ALR 647; [2016] FCA 196 at [81]. Edelman J’s decision that the governing law was the law of the supplier’s home state was not challenged on appeal or cross-appeal: Valve Corp v Australian Competition and Consumer Commission (2017) 351 ALR 584; [2017] FCAFC 224 at [80].

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is often a matter of chance.79 Likewise, where all obligations arising under a contract were to be performed in one place, it was once presumed that the law of the place of performance (lex loci solutionis) would be the proper law.80 This will now be — at best — only ‘an important consideration’,81 although the place of performance of the party whose performance characterises the contract may assume increasing significance.82 It also used to be presumed that a contract for the carriage of goods by sea would be governed by the law of the flag of the ship.83 In Coast Lines v Hudig & Veder Chartering NV,84 the law of the flag proved decisive in identifying the proper law of a bill of lading, but the English Court of Appeal stressed that this was not a presumption. The law of the flag was merely one factor to be considered among others. 17.18  The closest and most real connection formula is flexible, and may be a useful vehicle for allowing a court to find the seat of a contractual relationship. However, this flexibility largely results from the lack of definition in the formula. And this, in turn, has led to two problems. The first is that often it is difficult to determine whether the proper law is to be determined by reference to an implied choice, or by the closest and most real connection rule. This can make a difference to the final outcome of the case. The second problem is the uncertainty that the formula brings to the objective determination of the proper law, and the associated difficulty in predicting what it would be without resorting to litigation. Many cases show the transaction to be evenly poised between two legal systems, leading to ‘line ball’ decisions in favour of one or the other.85 James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd illustrates both of these problems.86 James Miller, a Scottish building company, was contracted to carry out alterations on a building in Scotland owned by Whitworth, an English company. The contract was in the standard ‘English form’ published by the Royal Institute of British Architects (RIBA), and included a clause providing for disputes to be referred to arbitration by an arbitrator appointed by the President of the RIBA. In a claim for moneys arising under the contract, the President appointed an arbitrator in Scotland who conducted the arbitration in that country according to Scottish procedure. When points of law arose, it became necessary to determine whether the contract was governed by English or Scots law. In this case, English law required the arbitrator to state a case on points of law to the English courts. Scots law recognised that the arbitrator was the final judge of fact and law. 17.19  In the House of Lords in James Miller, a majority held that the law of England governed the contract. Viscount Dilhorne thought that this could be inferred from 79. 80. 81. 82. 83. 84. 85.

86.

Fleming v Marshall (2011) 279 ALR 737 at 751 at 752, citing Amin Rasheed Shipping Corp v Kuwait Insurance Co [1984] AC 50 at 62. See also Four Seasons Holdings Inc v Brownlie [2017] UKSC 80 at [16]. Chatenay v Brazilian Submarine Telegraph Co Ltd [1891] 1 QB 79 at 82–3. Zivnostenska Banka National Corp v Frankman [1950] AC 57 at 85–6. See 17.54–17.55. Lloyd v Guibert (1865) LR 1 QB 115 at 122. [1972] 2 QB 34. Stanley Kerr Holdings Pty Ltd v Gibor Textile Enterprises Ltd [1978] 2 NSWLR 372 at 380; see also Coast Lines Ltd v Hudig & Veder Chartering NV [1972] 2 QB 34; Atlantic Underwriting Agencies Ltd v Compagnia di Assicurazione di Milano SpA [1979] 2 Lloyd’s Rep 240. [1970] AC 583.

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the RIBA contract that was in an English form. Lords Hodson and Guest thought that the contract had its closest and most real connection with the law of England, but mainly seemed to have relied on the fact that the parties deliberately adopted the English form of the contract. The dissentients, Lords Reid90 and Wilberforce,91 held that the proper law was Scots law, on the basis of the closest and most real connection rule. Further, reinforcing how close the decision was, Viscount Dilhorne said that, if this were not to be decided by the parties’ implied choice of English law, he would hold that the transaction had its closest and most real connection with Scots law.92 Consequently, the opposite result could have been reached if one judge had decided differently on the question of whether it was a case of implied choice or closest and most real connection, or had evaluated the significance of the transaction’s contacts with Scots law differently. The law therefore has failed to provide firm guidance at the highest level, and also the certainty and predictability that is so acutely needed in determining contractual rights and obligations. In ACCC v Valve Corp (No 3), Edelman J noted that a difficulty with the objective proper law test is that ‘different factors will often point in different directions’.93 87

88

89

Change of proper law 17.20  The parties to a contract may provide for the choice of a particular proper law to be changed or postponed until sometime after the contract has been formed. Here, three different situations should be distinguished: 1. 2. 3.

the parties might make no provision whatsoever in the contract for a proper law but either do provide or imply that, on the happening of a particular event, the law of Ruritania shall be the proper law; the parties could provide in the contract that the law of Hentzau shall be the proper law unless a particular event occurs, in which case the proper law shall become the law of Ruritania; or the parties enter a contract, which may or may not provide for a proper law. After the contract is formed the parties agree to vary the terms of the contract by making express provision for the first time that the proper law shall be the law of Ruritania or by changing the proper law to the law of Ruritania.

Situations 2 and 3 are probably permissible extensions of the rules permitting a subjective choice of the proper law. They merely represent a change from one proper law to another.94 Situation 1, however, is currently a more doubtful proposition under the established concept of the proper law.

87. 88. 89. 90. 91. 92. 93. 94.

At 611–12. At 606. At 608. At 604–5. At 615–16. At 611. (2016) 337 ALR 647 at [69]. See 17.23.

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17.21  The bond considered in Armar Shipping Co v Caisse Algerienne d’Assurance et de Reassurance, (The Armar)95 is an example of situation 1. In The Armar, the bill of lading for a consignment of sugar provided for the adjustment of general average at a port or place chosen by the plaintiff carrier. The voyage could not be completed without the plaintiff incurring a loss of a general average nature. On the vessel’s arrival in Algeria, the defendant, an Algerian insurance company, executed a general average bond by which the plaintiff was to be paid general average charges. The plaintiff later arranged for the adjustment of general average in London, it being found there that the defendant was liable to pay the plaintiff £52,420. The defendant refused to pay, so in proceedings in England the plaintiff sought leave to serve a writ on the defendant in Algeria under the rule that permitted service outside England in an action relating to a contract which is governed by the law of England. The plaintiff alleged that the proper law of the bond was the law of England. 17.22  At first instance in The Armar, Mustill J held that the law of England governed the bond, and service on the defendant in Algeria was permissible. All objective criteria suggested that the bond was most closely connected with Algeria. However, the bond also provided for a payment of general average and therefore the place where the adjustment of general average was to be made became the most important consideration for determining the proper law of the bond. Exercising its rights under the bill of lading, the plaintiff opted for the adjustment to take place in London. So, the proper law of the general average bond became the law of England at the time the plaintiff made this choice. Mustill J thought that the proper law ‘floated’ until that time. The contract initially had no proper law whatsoever, and one would not arise until the plaintiff chose a venue for adjusting the general average. On this critical point the Court of Appeal disagreed. Megaw LJ held that a contract had to have a proper law at the time it was made, and the attribution of a proper law to a contract could not be made dependent on a contingency that may or may not subsequently occur. He said:96 The governing law cannot be decided, retrospectively, by reference to an event which was an uncertain event in the future at the time when obligations under contract had already been undertaken, had fallen to be performed and had been performed.

In relation to the bond, disputes requiring determination in accordance with a proper law may have arisen between the time of formation and the time the plaintiff selected the venue for adjusting the general average, showing how problematic a ‘floating’ proper law would be in this period. However, the circumstances at the time the bond was executed suggested the proper law was the law of Algeria. Thus, service outside England was impermissible. The decision in The Armar emphasises the strength of the idea that parties enter a contract with the intention of creating rights and obligations that are legally enforceable. These must always exist by reference to the law of one particular place or another, and it is therefore unthinkable that the proper law might only arise after the contract is made.97 17.23  While the common law probably does not permit the proper law to ‘float’ after the contract is formed, the parties may agree to change the proper law. The principle of party

95. 96. 97.

[1981] 1 All ER 498. At 505. See also Dubai Electricity Co v Islamic Republic of Iran Shipping Lines [1984] 2 Lloyd’s Rep 380.

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autonomy suggests that the parties have the legal right and power to change the proper law of the contract and that, where they make such a change, it should in general be given effect.98 Thus, as in situation 2, the parties should be able to provide that the law of Hentzau shall be the proper law unless a particular event occurs, in which case the law of Ruritania shall be the proper law of the contract.99 It is also consistent with party autonomy that, as in situation 3,100 the law of Hentzau might initially be the proper law of the contract but the parties subsequently vary the terms and agree that the law of Ruritania will be the proper law.101 In either case, as long as the law of Ruritania is the law chosen by the parties by the time proceedings are commenced, it should be the proper law applicable for determining all rights and obligations arising under the contract from the time the contract was formed. It is also possible that the objective proper law of the contract might be varied, following a variation to the contract.102 17.24  Australian courts have enforced service of suit clauses, under which the parties agreed to submit to the jurisdiction of any competent Australian court, and further agreed that the dispute would be determined in accordance with the law of the place in which proceedings were commenced.103 In HIH Casualty & General Insurance (in liq) v RJ Wallace, Einstein J followed English authority which held that in such a case, the commencement of proceedings according to the service of suit clause was the exercise of a contractual option which led to a retrospective variation of the proper law.104 This is an inventive way of getting around the common law’s reluctance to admit that the parties could choose to have a floating proper law.

Multiple proper laws Dépeçage 17.25  The basic assumption that parties make promises under a contract by reference to some system of law tends to suggest that the courts are unlikely to ascribe more than one proper law to a single contract.105 This is certainly the attitude expressed by Evatt J in Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society:106 … 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. 98. 99. 100. 101. 102. 103.

104.

105. 106.

Mauritius Commercial Bank Ltd v Hestia Holdings Ltd [2013] EWHC 1328 at [30]. The Mariannina [1983] 1 Lloyd’s Rep 12. See 17.20. See also E I Du Pont de Nemours & Co & Endo Labs Inc v Agnew & Kerr [1987] 2 Lloyd’s Rep 585 at 592. Busst v Lotsirb Nominees Pty Ltd [2003] 1 Qd R 477; [2002] QCA 296 (although, in this case, it was held that the variation in the contract did not lead to a change to the objective proper law of the contract). AIG UK Ltd v QBE Insurance (Europe) Ltd [2008] QSC 308; HIH Casualty & General Insurance (in liq) v Wallace (2006) 68 NSWLR 603; [2006] NSWSC 1150. See, similarly, Woolworths Ltd v DS McMillan (SC(NSW), 29 February 1988, unreported); King v Brandywine Reinsurance Co (UK) Ltd [2004] 2 Lloyd’s Rep 670 at 681 (reversed on other grounds: King v Brandywine Reinsurance Co [2005] 1 Lloyd’s Rep 655). HIH Casualty & General Insurance (in liq) v Wallace (2006) 68 NSWLR 603 at 636; [2006] NSWSC 1150. See also at 634 (referring to BP plc v National Union Fire Insurance Co [2004] EWHC 1132 at [31]), at 636 (referring to E I Du Pont de Nemours & Co v Agnew [1987] 2 Lloyd’s Rep 585). See 17.7–17.8. (1934) 50 CLR 581 at 604.

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There have, however, been some more recent indications that dépeçage as to the proper law is possible, with some aspects of the one contract being governed by the law of one place and others being governed by the law of another place. In some cases, judges have contemplated the possibility of multiple proper laws while still, on the facts of the case, concluding that the contract was governed by one proper law only.107 Two English cases could, nevertheless, be genuine examples of dépeçage. In the first, Libyan Arab Foreign Bank v Bankers Trust Co,108 Staughton J held that a contract between a bank and its customer was governed by the law of England to the extent that it related to a bank account in London, and by the law of New York to the extent that it related to another account in New York. In the second, Forsikringsaktieselskapet Vesta v Butcher,109 a contract of insurance contained a clause requiring a 24-hour watch to be maintained on the insured property. This contract was governed by the law of Norway. The related contract of reinsurance included an identical ‘watch clause’. The  proper law of this contract was held to be the law of England, except that the watch clause was held to be governed by the law of Norway. Sykes and Pryles suggest this might not be true dépeçage but, instead, that the proper law remained English law and that English law required the watch clause to be interpreted in accordance with Norwegian law.110 This, nevertheless, seems more like a case of renvoi than of the application of English law. However, even if this is so, the case is still an instance of dépeçage. English choice of law rules are still requiring that some obligations under the contract be governed by English law and others by Norwegian law. Moreover, because this happened without the parties providing that the watch clause should be governed by Norwegian law, the case is not an example of ‘incorporation’.111 In both cases the result seems sensible, and multiple proper laws may therefore be possible. If they are, it should then be admitted that the dépeçage bends a basic principle and should only be used in exceptional circumstances.

Incorporation 17.26  In some cases what might appear to be dépeçage as to the proper law can, on closer analysis, be shown to be orthodox examples of one proper law for the one contract. The first of these cases are those showing ‘incorporation’. Here, the proper law of a contract is the law of Hentzau, but the parties agree that certain obligations are to be governed by the law (usually a statute) of Ruritania. The law of Ruritania is not a proper law — it becomes a term of the contract, taking its force and effect by the agreement of the parties and not as the law of the cause. Indeed, the law of Ruritania will only become part of the contract if the proper law (Hentzau) allows its incorporation into the contract.112 For example, in Vita Food Products113 the proper law was the law of England but the contract provided that in

107. For example, Weckstrom v Hyson [1966] VR 277 at 282–5; Wahbe Tamari & Sons Co v Bernhard Rothfos Beteiligungsgesellschaft mbH [1980] 2 Lloyd’s Rep 553; Olex Focas Pty Ltd v Skodaexport Co Ltd [1998] 3 VR 380 at 395. 108. [1989] QB 728. 109. [1988] 2 All ER 43. 110. E I Sykes and M C Pryles, Australian Private International Law, 3rd ed, Lawbook Co, Sydney, 1991, p 588. 111. See 17.26. 112. Stafford Allen & Sons Ltd v Pacific Steam Navigation Co [1956] 2 All ER 716. 113. Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 290; see 17.7.

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some cases the provisions of United States or Canadian legislation were to apply. This is not a case of multiple proper laws. American or Canadian law would not take effect as such, but as terms of a contract governed only by English law. Second, a case that appears to be an example where one contract has, say, two proper laws might really be an example of two contracts, each with its separate proper law. For example, in ISS Machinery Services Ltd v Aeolian Shipping SA,114 a claim and the corresponding counterclaim were governed by two distinct proper laws, as each claim arose from the same issues but two separate contracts. This is also probably what happened in Samarni v Williams.115 There, Master Allen held that a contract between the plaintiff and an insurance company relating to the service of a writ could have had two proper laws. To the extent that the contract provided for the place and manner of serving the writ the proper law was the law of New South Wales. However, to the extent that it had to be decided whether service on the insurance company also bound the defendant (who was the insured person) the proper law was the law of Victoria. Master Allen thought that this was an instance of dépeçage. But, as Sykes and Pryles have suggested, it is more likely that there were two contracts involved: one between the plaintiff and insurance company relating to service of the writ; and another between the insurance company and the defendant relating to the company’s power to bind the defendant.116 Traditional rules of privity of contract certainly support this analysis, for without the second contract the defendant could not be affected by any agreement made between the plaintiff and the insurance company. There might have been two proper laws, but each probably governed a different contract.

Formation and performance 17.27  It would obviously be simpler and more efficient if as many aspects of a contractual relationship as possible were to be governed by the proper law of the contract. In some cases, especially where there is a concern that the parties may have attempted to evade the otherwise applicable law, the courts may be inclined to apply the objective proper law rather than the subjective proper law. The trend over the 20th century was that the concept of the proper law progressively extended its role, and replaced other connecting factors for identifying the law of the cause in specific issues relating to a multi-state contract. There is also a trend to subject most issues to the subjective proper law, if the parties have chosen one. There remain some issues where the otherwise effective proper law is not appropriate to be applied, and others where its role is uncertain.

Formation The general principle 17.28  Issues relating to the formation of a contract include all those that affect the creation of enforceable promises. They include the parties’ capacity to make a contract, offer and acceptance, the need to comply with formalities, the need for consideration and the reality 114. [2001] 2 Lloyd’s Rep 641. 115. [1980] 2 NSWLR 389. 116. Sykes and Pryles, above n 110, p 585.

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of agreement. In Oceanic Sun Line Special Shipping Co Inc v Fay117 Brennan and Gaudron JJ held that questions of formation should be determined in accordance with the law of the forum.118 Although this view is somewhat controversial, it was applied by the Full Court of the Federal Court in Trina Solar, Inc v Jasmin Solar Pty Ltd,119 and the New South Wales Supreme Court,120 in the context of the formation of arbitration and jurisdiction clauses. By analogy, the same reasoning should be applied to choice of law agreements.

Contracting capacity 17.29  The older cases support two alternative rules for a question concerning the legal capacity of a person to make a contract. There is some authority that the question was to be governed by the law of the place where the contract was made.121 The alternative is that the question be governed by the law of the place where that person is domiciled at the time the contract is made.122 These rules have been replaced with one requiring application of the putative proper law of the contract. Consistent with Australian authority, this would appear in questions of capacity to be the putative proper law as determined objectively by the closest and most real connection rule.123

Offer and acceptance 17.30  As noted above,124 the prevailing view in Australia now is that the question as to whether the parties concluded an arbitration or jurisdiction agreement is determined according to the law of the forum, and by parity of reasoning, the question as to whether a valid contract was concluded should similarly be determined by the law of the forum, although as a matter of principle it would be preferable to refer to the objective proper law of the contract.

Statute of Frauds 17.31  Some formalities requirements, including the requirements of the Statute of Frauds for contracts relating to interests in land, were traditionally regarded as procedural, and so governed by the law of the forum.125 Such requirements should no longer be regarded as procedural after the fundamental definition of procedure was redrawn in John Pfeiffer Pty Ltd v Rogerson.126 The contract should therefore be treated as formally valid if it complies with formalities prescribed by its proper law.

117. 118. 119. 120. 121. 122. 123. 124 125. 126.

(1988) 165 CLR 197. At 225 and 261. See also at 202 (Wilson and Toohey JJ; at 255–6 (Deane J). (2017) 247 FCR 1; [2017] FCAFC 6 at [46] and [133]–[134]. Venter v Ilona MY [2012] NSWSC 1029 at [27]; Hargood v OHTL Public Company Ltd [2015] NSWSC 446 at [23]. Male v Roberts (1800) 3 Esp 163 at 164; 170 ER 574. Sottomayor v De Barros (1877) LR 3 PD 1 at 5. Charron v Montreal Trust Co (1958) 15 DLR (2d) 240; Bodley Head Ltd v Flegon [1972] 1 WLR 680. See 17.28. See 7.35. (2000) 203 CLR 503; [2000] HCA 36; see Tipperary Developments Pty Ltd v Western Australia (2009) 38 WAR 488; [2009] WASCA 126; see also 7.24–7.28.

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Consideration 17.32  Whether there is a need for a promise to be supported by consideration for it to be enforceable is primarily to be determined by the putative proper law of the contract.127

Reality of consent 17.33  One issue which relates to the formation of a contract is whether one party’s assent to the terms of the bargain was not real because one party objects that their consent was obtained by fraud, duress, misrepresentation or unconscionable conduct. If reality of consent does not exist, the contract may be void ab initio, or voidable. It seems that the proper law of the contract determines whether a contract that has been made can subsequently be avoided because of the existence of a vitiating factor like fraud, duress or unconscionable conduct.128 However, where the question is whether the contract was void ab initio, it prejudges the issue to apply the proper law. In Mackender v Feldia AG,129 Diplock LJ ventured that the law of England should determine whether conduct that occurred in England did not lead to the formation of a valid contract, regardless of the proper law chosen by the parties. However, it is uncertain whether the law of England would have applied because it was the putative proper law as determined objectively or the law of the forum. The former is more consistent with the weight of authority relating to the formation of contracts. The latter is consistent with Brennan and Gaudron JJ’s position in Oceanic Sun Line Special Shipping Co Inc v Fay.130 This can be supported on the same basis as the doctrine of separability, in the context of the enforcement of jurisdiction and arbitration agreements.131

Performance The general principle 17.34  The parties must perform their respective obligations in accordance with the agreed terms. For the most part, the proper law of the contract governs the substance of the contractual obligation. The proper law dictates whether the contract or a particular obligation is enforceable;132 whether it is legal or illegal;133 whether there are any obligations implied by law;134 and whether failure to perform an agreed obligation is excusable.135 In cases where the contract is to be performed completely in, for example, Hentzau, the substance of the obligation is still to be governed by the proper law of the contract even where that is, say, the law of a different country, Ruritania. A case that illustrates this is

127. Re Bonacina [1912] 2 Ch 394. 128. Paradise Enterprises Ltd v Kakavas [2010] VSC 25; Mackender v Feldia AG [1967] 2 QB 590; Dimskal Shipping Co SA v International Transport Workers Federation (The Evia Luck (No 2)) [1992] 2 AC 152; cf Attorney-General for England and Wales v R [2002] 2 NZLR 91 at 103. 129. [1967] 2 QB 590 at 602–3. 130. See 17.28. 131. See 4.14 and 6.20. 132. South African Breweries Ltd v King [1899] 2 Ch 173. 133. Kahler v Midland Bank Ltd [1950] AC 24. 134. The August [1891] P 328. 135. Jacobs v Crédit Lyonnais (1884) 12 QBD 589.

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Mount Albert Borough Council v Australasian Temperance & General Mutual Life Assurance Society.136 The defendant was a municipal authority in New Zealand which borrowed money from the plaintiff company in Victoria by an issue of debentures. The loan was to be performed in Victoria, as principal and interest were repayable there. However, it was expressly agreed that the law of New Zealand would govern the loan. In 1931, the Victorian Parliament passed the Financial Emergency Act, which deemed borrowers to have discharged their obligations to pay interest at a reduced rate for three years. The plaintiff sued in New Zealand for the full interest payment, but the Victorian legislation was pleaded in defence. Ultimately, the Privy Council held that the full sum of interest was recoverable. The Financial Emergency Act could not justify reduced interest payments where the proper law of the loan contract was the law of New Zealand, even if the legislation was part of the law of the place of performance. 17.35  Ennstone Building Products Ltd v Stanger Ltd137 is a more recent English example of this principle. It was claimed there that there was a breach of contract by negligent performance of its terms, which were to be carried out substantially in Scotland. If the proper law was held to be Scots, then the claim arising from the breach would have been statute-barred because of a shorter limitation period. On appeal it was held that, even though the alleged negligent performance of the contract occurred in Scotland, the proper law governing claims arising from performance of the contract was English. The principal place of business — England — was presumed to be the proper law of the contract. This governed claims relating to performance of the contractual obligations even when performance took place in Scotland, where the action would be time-barred. 17.36  It should, nevertheless, be noted that the proper law of the contract might not exclusively govern performance in some cases. These are: • questions of the mode of performance; and • questions of illegality in the place of performance.

Mode of performance 17.37  To some extent, judges have distinguished the substance of a contractual obligation from the mode of its performance. The latter is said to be governed by the law of the place of performance.138 To date, the only question that has been conclusively classified as relating only to the mode of performance is whether payment under a contract is to be tendered by note, coin or cheque.139

Illegality in the place of performance 17.38  A question also arises as to whether a contract that is illegal in the place where it is to be performed is enforceable in the courts of the forum. The concept of ‘illegality’ here should be distinguished from the concept of a ‘void’ or ‘voidable’ contract — ‘illegality’

136. 137. 138. 139.

[1938] AC 224. [2002] 1 WLR 3059. Bonython v Commonwealth [1951] AC 201 at 219. Goldsborough Mort & Co Ltd v Hall [1948] VLR 145 at 152.

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suggesting a more serious infringement of the law. So, a contract that is valid under the proper law will be enforceable in the forum if merely void under the law of the forum, but not if illegal under the law of the forum.140 This question is only of practical importance when the same contract is not regarded as illegal under the law of the forum or under the proper law, because there is no doubt that illegality in either place will render the contract unenforceable in the forum.141 17.39  The case most frequently cited in favour of the principle that illegality in the place of performance renders a contract unenforceable is the English Court of Appeal’s decision in Ralli Bros v Compañia Naviera Sota y Aznar.142 The contract there was illegal under the law of Spain, where it was to be performed, and was held to be unenforceable in England. However, the proper law of the contract was the (internal) law of England. This  small complication means there are alternative interpretations of the decision. The first is that illegality in the place of performance makes the contract unenforceable might itself be a choice of law rule. If so, this notion was determinative in Ralli Bros independently of the proper law, and should be applied to all multi-state contract cases where it is relevant.143 The second interpretation is that illegality in the place of performance makes the contract unenforceable might only be an internal rule of the common law of England. If so, the rule was applied in Ralli Bros because the (internal) law of England was the proper law. The result of this approach is that the rule will only apply when the proper law of the contract is the law of one of those places (such as England) that, as a principle of internal law, refuses to enforce contracts that are illegal where they are to be performed. If a court in Australia were to find that the proper law was the law of some place that did not, as a matter of its internal law, have such a rule, then illegality in the place of performance would be irrelevant. This approach is more complicated, but more consistent with the primary operation of the proper law. 17.40  There is limited Australian authority on this point. In PT Arutmin Indonesia v PT Thiess Contractors Indonesia, Jackson J stated that the principle in Ralli Bros was ‘a principle of discharge for frustration by supervening illegality and impossibility of performance under foreign law’,144 and adopted Treitel’s view that this principle ‘can be excluded if the contract has sufficiently provided for what is to happen in the event which has actually occurred’.145 Nevertheless, a contract illegal in the place of performance might be regarded as unenforceable in an Australian court on other grounds, irrespective of the effect of Ralli Bros. It has been held in England that a contract made in violation of the laws of a friendly country might not be enforced on the ground of public policy, and in the interests of comity towards that country.146 Saxby v Fulton [1909] 2 KB 208. Boissevain v Weil [1950] AC 327; Kahler v Midland Bank Ltd [1950] AC 24. [1920] 2 KB 287. This is the approach preferred by A Chong, ‘The Public Policy and Mandatory Rules of Third Countries in International Contracts’ (2006) 2 Journal of Private International Law 27 at 64–5. 144. [2013] QSC 332 at [161]. 145. G H Treitel, Frustration and Force Majeure, 2nd ed, Sweet & Maxwell, 2004, at [8.054], cited in PT Arutmin Indonesia v PT Thiess Contractors Indonesia [2013] QSC 332 at [161]–[162]. 146. Foster v Driscoll [1929] 1 KB 470; Regazzoni v KC Sethia (1944) Ltd [1958] AC 301. Cf, however, the position where the contract is illegal in a place with which it has no relevant connection: Caterpillar Financial Services Corp v SNC Passion [2004] 2 Lloyd’s Rep 99. 140. 141. 142. 143.

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Interpretation 17.41  Generally, the terms of a contract are to be interpreted in accordance with the parties’ intentions. Usually, these will be expressed in terms of the proper law. The proper law will therefore govern most questions of interpretation,147 including the construction of jurisdiction and choice of law clauses. However, the parties’ intentions are paramount and, if they suggest a reference to the law of some place other than the country that gives the proper law, then that should be made.148

Failure to perform 17.42  Whether there is failure to perform a term of a contract is a question which directly concerns the substance of the obligation to perform. It is therefore governed by the proper law of the contract. This is so whether non-performance results from breach,149 or  impossibility of performance.150 The proper law also determines the significance of a breach (such as whether it terminates the contract) and its consequences.151 The general view has been that the remedies available for breach are a matter for the proper law, and while nothing was said about remedies when the High Court recast the private international law of procedure in John Pfeiffer Pty Ltd v Rogerson,152 the decision would not seem to affect their classification as matters of substance, governed by the proper law.153

Novation 17.43  The novation of a contract should be carefully distinguished from the assignment of rights under a contract. Both ideas concern a contract which creates a debt; namely, one party’s (A’s) right to receive and the other’s (B’s) obligation to pay money. Where the creditor (A) endeavours to pass its right to receive the payment to a third party (C), it is regarded as an assignment or transfer of the debt. No change is made to the contract that created the debt. Therefore, if a choice of law issue arises, it is classified as a transfer of the debt between living persons and the proper law of the contract has no role to play. On the other hand, where the debtor (B) tries to pass its obligation to pay to a third party (C), there is a novation. The first contract that created the original debt between A and B is discharged, and a second contract that creates a new debt to be paid by C to A comes into being. In a multi-state novation, two issues might have to be considered before the novation can be regarded as successfully replacing B’s obligation to pay with C’s. First, whether B is discharged from its obligation to pay A by the novation is a question to be determined in accordance with the proper law of the first contract.154 Second, whether C is then obliged to pay A as a result of the novation is a question that is probably determined by the proper law of the second contract. This is 147. Permanent Trustee Co (Canberra) Ltd v Permanent Trustee Co of New South Wales Ltd (1969) 14 FLR 246 at 254. 148. Rowett Leaky & Co Ltd v Scottish Provident Institution [1927] 1 Ch 55. 149. Benaim & Co v Debano [1924] AC 514. 150. Jacobs, Marcus & Co v Crédit Lyonnais (1884) 12 QBD 589. 151. Drew Brown Ltd v The Orient Trader (1972) 34 DLR (3d) 339. 152. (2000) 203 CLR 503; [2000] HCA 36. 153. See 7.38. 154. Re United Railways of the Havana and Regla Warehouse Ltd [1960] Ch 52 at 84–5.

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less certain, but in Re United Railways of the Havana and Regla Warehouses Ltd, Jenkins LJ said that this issue would be determined ‘by the law with which the entry of the debtor is most closely connected and that, in the absence of some agreement to the contrary, such law might be the debtor’s personal law or the law of his place of business’.155 While this comment strongly suggests the law of the cause for the second issue is the proper law of the second contract as determined objectively, it is difficult to see why this issue should be treated differently to other questions of performance. In general, these are governed by the proper law — whether determined by choice or the closest and most real connection rule.

Related claims 17.44  It is common in commercial disputes that the parties have available to them a choice of claims, counterclaims and defences, some but not all of which are contractual. The parties are at liberty to exploit the differences in choice of law rules that might be applied to resolve particular issues, and thereby, give rise to different outcomes. This is most likely to occur in the context of a concurrence of liability, in which case, if a party is likely to receive a more favourable outcome by claiming only or alternatively for breach of contract, rather than for breach of a duty in negligence to take care, or for some other remedy, they are entitled to do so. In Busst v Lotsirb Nominees Pty Ltd, an employee was injured in the course of her employment.156 The Queensland Court of Appeal found that the proper law of the contract was Queensland law, whereas the governing law of the tort was the law of New South Wales. They held that the nature of the breach of contract was not relevant in determining the proper law of the contract,157 and consequently, New South Wales legislation that would have limited her entitlement to recover in tort was inapplicable.

Specific contracts 17.45  To this point, only the common law principles and rules applicable to multi-state contracts have been considered. There is always the possibility that the law of the cause will not be found in the common law rules because the legislation of the forum might override the common law or its effect.158 Indeed, many species of contract are significantly affected by legislation. A number of these are now examined.

International sea carriage of goods contracts 17.46  The Carriage of Goods by Sea Act 1991 (Cth) applies to any bill of lading relating to the carriage of goods from a place in Australia to a place outside Australia. It provides that the bill of lading is to be governed by the law in force in the place of shipment (which will be a state or territory), and that any agreement by the parties as to the proper law is nullified.159 The law in force in any state or territory of shipment is, of course, the 155. 156. 157. 158. 159.

[1960] Ch 52 at 91. [2003] 1 Qd R 477; [2002] QCA 296. At 480. See Chapter 12. Carriage of Goods by Sea Act 1991 (Cth) s 11.

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Carriage of Goods by Sea Act itself, which implements the Hague-Visby Rules 1968 and 1979 and the Hamburg Rules 1978. Consequently, the proper law of the contract has no role to play in bills of lading relating to shipments from Australia. The international rules of sea carriage apply as the substantive law governing such contracts.160 The Act does not indicate how a court in Australia is to deal with a bill of lading relating to a shipment from a port outside Australia. In such a case, the law of the cause is probably the proper law of the contract. If the proper law is the law of a place that has adopted the Hague-Visby and Hamburg Rules, then clearly they must continue to govern the contract.161 However, if the proper law in such a contract is the law of a place that has not adopted the Hague-Visby or Hamburg Rules, then it would appear that they are inapplicable.162

International sale of goods contracts 17.47  The Sale of Goods (Vienna Convention) Acts were passed in all states and territories in 1986 and 1987.163 This legislation adopted the United Nations Convention on Contracts for the International Sale of Goods, and provides substantive rules relevant to international sale of goods contracts. The convention applies to any contract for the sale of goods when:164 • the contract is made between parties whose places of business are in different countries, and: – those countries are parties to the convention; or – the governing law of the contract is the law of a country which is party to the convention. The convention only applies if the parties have not expressly agreed that the terms of the convention not apply, either in whole or in part.165 In that case, it seems the parties have the right to choose a different proper law for the contract that would govern those parts agreed not to be subject to the convention. The convention is not often applied by Australian courts, even in cases where it is clearly applicable.

Insurance contracts 17.48  The Insurance Contracts Act 1984 (Cth) applies only to contracts or proposed contracts of insurance (but not reinsurance), the proper law of which is, or would be, the law of a state or territory of Australia.166 The Act provides that, in cases where the proper law of such a contract would, but for an express provision in the contract to the contrary, The Hollandia, Re The Morviken [1983] 1 AC 565. Cf Mineracoes Brasilieras Reunidas v EF Marine SA (The Freights Queen) [1977] Lloyd’s Rep 140. Vita Food Products Inc v Unus Shipping Company Ltd [1939] AC 277. 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). 164. United Nations Convention on Contracts for the International Sale of Goods Art 1(1). 165. United Nations Convention on Contracts for the International Sale of Goods Art 6. 166. Insurance Contracts Act 1984 (Cth) s 8(1). 160. 161. 162. 163.

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be the law of a state or territory, the proper law is deemed to be the law of that state or territory.167 This provision was considered by the High Court in Akai Pty Ltd v The People’s Insurance Co Ltd,168 in which the majority — Toohey, Gaudron and Gummow JJ — held that, irrespective of the parties’ intentions, the Insurance Contracts Act applied to any insurance contract for which the objective proper law was the law of an Australian state or territory. As a result, where the contract had its most real and substantial connection with a state or territory, the parties could not contract out of the Act by any express or implied choice to the contrary. Therefore, in contracts objectively connected with Australia, the operation of the Act is not negated by provisions that might indicate that the parties intended the law of some other place to apply. These include an express choice of proper law clause.169 They also include clauses which suggest that the parties implicitly chose the law of some place outside Australia, such as an exclusive jurisdiction clause,170 or an arbitration clause.171

Consumer contracts 17.49  The common law choice of law rules make no specific allowance for contracts involving weaker parties, including consumers. Therefore, the same principles apply to consumer as to commercial contracts, although there are more substantive legislative protections for consumers, which may be applied with mandatory effect in cross-border cases. It is increasingly common for Australian consumers to enter into contracts with foreign suppliers of goods and services, and increasingly common to find that those contracts, concluded online, contain express choices in favour of the supplier’s law. An express choice of foreign law will not necessarily exclude the application of Australian consumer protections, particularly those found in the Australian Consumer Law. 17.50  The Competition and Consumer Act is unusual in that it contains provisions stipulating the extraterritorial effect of some of that Act and the Australian Consumer Law in international cases. Section 5 provides that some Parts of the Competition and Consumer Act172 and most of the Australian Consumer Law173 apply to ‘the engaging in conduct’ outside Australia by Australian residents, citizens, and companies which are either incorporated in Australia or which carry on business in Australia. The inference that arises from s 5 is that the Competition and Consumer Act, and the Australian Consumer Law, otherwise only apply to conduct in Australia.174 The type of conduct most often in issue is misleading conduct,175 often in the form of representations made to individuals in Australia. Insurance Contracts Act 1984 (Cth) s 8(2). (1996) 188 CLR 418. (1996) 188 CLR 418. (1996) 188 CLR 418. John Kaldor Fabricmaker Pty Ltd v Mitchell Cotts Freight (Aust) Pty Ltd (1989) 18 NSWLR 172. Namely, Pts IX and XI and the other provisions of the Competition and Consumer Act, to the extent to which they relate to Parts IX and XI of the Act and the Australian Consumer Law. 173. All except for Pt 5-3. 174. Bray v Hoffman La-Roche Ltd (2002) 118 FCR 1 at [50]. See also Valve Corporation v Australian Competition and Consumer Commission (2017) 351 ALR 584; [2017] FCAFC 224 at [105]. 175. Australian Consumer Law 2010 s 18(1). 167. 168. 169. 170. 171. 172.

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This may be held to have occurred in Australia if the relevant statement was made to an individual in Australia and intended to be acted upon in Australia.176 17.51  Part 3-2, Div 1 of the Australian Consumer Law provides protection for consumers in contracts for the supply of goods and services, in the form of mandatory guarantees about the quality of the goods and services. Section 67 of the Australian Consumer Law, entitled ‘Conflict of laws’, contains two separate provisions which are intended to safeguard the application of the consumer guarantees in cross-border contracts. Section 67(a) specifies that the consumer guarantees apply to contracts the proper law of which would be the law of any part of Australia ‘but for a term of  the contract that provides otherwise’.177 An express choice of foreign law is a term that provides otherwise, and is therefore ineffective in excluding the application of the consumer guarantees, if the objective proper law of the contract is the law of an Australian state or territory.178 Section 67(b) states that Pt 3-2, Div 1 applies despite any term in ‘a contract for the supply of goods or services to a consumer … that purports to substitute, or has the effect of substituting’, the provisions of a foreign law, or of the law of an Australian state or territory, for the provisions of Pt 3-2, Div 1. A choice of law clause is a clear example of a term that purports to substitute a foreign law for these provisions; while an exclusive choice of foreign courts or arbitration coupled with a choice of foreign law is an example of a term that ‘has the effect of substituting’ the provisions of foreign law for these provisions. Section 67(b) does not contain any express criterion limiting its application,179 but it certainly seems to apply in a wider range of cases than s 67(a) and for that reason makes s 67(a) redundant.180

Consumer credit contracts 17.52  The National Consumer Credit Protection Act 2009 (Cth) provides a range of protection to consumers of credit within Australia. The legislation is stated to apply in the geographical territory of all Australian states, pursuant to their referral of powers to

176. Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 548. In relation to statements made on a website, see Australian Competition and Consumer Commission v Valve (No 3) (2016) 337 ALR 647; [2016] FCA 196 at [181]; Ward Group Pty Ltd v Brodie & Stone Plc (2005) 143 FCR 479; and Australian Competition and Consumer Commission v Chen (2003) 132 FCR 309. 177. Australian Consumer Law s 67(a). 178. This provision is ill-advised; it is much more likely, as a matter of fact, that the objective proper law of a consumer contract will be that of the supplier. See, for example, Australian Competition and Consumer Commission v Valve (No 3) (2016) 337 ALR 647; [2016] FCA 196 at [76]–[84]; Gonzalez v Agoda Co Pte Ltd [2017] NSWSC 1133 at [134]. 179. The issue was not squarely addressed in Australian Competition and Consumer Commission v Valve (No 3), because Valve conceded that the consumer guarantees would be applicable but for s 67. Edelman J hinted that the application of the guarantees depended on whether the goods were supplied in Australia: (2016) 337 ALR 647; [2016] FCA 196 at [158]. See likewise Valve Corporation v Australian Competition and Consumer Commission (2017) 351 ALR 584; [2017] FCAFC 224 at [116]. 180. R Garnett, ‘Arbitration of Cross-Border Consumer Transactions in Australia: A Way Forward?’ (2017) 39 Sydney Law Review 569 at 581.

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the Commonwealth, and the territories. It also applies to acts and omissions outside the jurisdiction,183 and to foreign individuals who are taken to be carrying on a relevant business within Australia.184 181

182

Contracting out 17.53  Some legislation stipulates its intended scope of application. Some legislation also specifically prohibits contracting out of the legislation generally,185 or of specific parts of the statute.186 For example, s 52 of the Insurance Contracts Act 1984 (Cth) renders void any provision of a contract of insurance that ‘purports to exclude, restrict or modify … to the prejudice of a person other than the insurer, the operation of this Act’. This type of prohibition certainly has a mandatory effect domestically. The majority of the High Court in Akai Pty Ltd v The People’s Insurance Co Ltd held that such a provision also has an internationally mandatory effect, in the context of the enforceability of choice of foreign court agreements, because enforcing an exclusive choice of foreign court would have the effect of excluding the application of the legislation. Consequently, the choice of court agreement in that case was rendered void.187 By parity of reasoning, any choice of foreign law would be rendered void by this type of provision.188

Reform 17.54  The uncertainty of the common law concept of the proper law and, in questions of formation and performance, when it is to apply make some reform of the choice of law rules for contract highly desirable. Within the European Union, choice of law in contract has been largely regulated for some years now by European Union instruments: first, by 181. National Consumer Credit Protection Act 2009 (Cth) s 21(1)–(3). The references by the states are contained in the Credit (Commonwealth Powers) Acts. All states have enacted legislation of the same name, passed by Tasmania in 2009 and by the other states in 2010. 182. The Commonwealth exercised its power to regulate consumer credit in the territories by reference to s 122 of the Australian Constitution; National Consumer Credit Protection Act 2009 (Cth) s 18(2). 183. National Consumer Credit Protection Act 2009 (Cth) s 21(4). 184. National Consumer Credit Protection Act 2009 (Cth) s 12(2), stating that a person will be taken to be carrying on business locally if ‘that person engages in conduct that is: (a) intended to induce people in this jurisdiction to use the goods and services the person provides; or (b) is likely to have that effect, whether or not the conduct is intended, or likely, to have that effect in other places as well’. The term ‘this jurisdiction’ is defined in s 21(2) to mean the territories and all referring states. Because all states have referred their powers to the Commonwealth, ‘this jurisdiction’ means the whole of Australia: s 21(3)(a). 185. National Consumer Credit Protection Act 2009 (Cth) s 334(1). Breach of this provision by certain parties is a criminal offence of strict liability: s 334(3), (4). See also Building and Construction Industry Security of Payments Act 1999 (NSW) s 34, applied in Proactive Building Solutions v Keck [2013] NSWSC 1500. 186. Australian Consumer Law s 64. 187. Akai Pty Ltd v The People’s Insurance Co Ltd (1996) 188 CLR 418 at 447–8. 188. That would not be necessary to consider in the context of the Insurance Contracts Act 1984 (Cth), which by s 8(2) determines the application of the Act by reference to whether the objective proper law of the Act is that of a state or territory, without reference to any contrary express or implied choice by the parties (see 17.48), but it might be relevant in legislation which does not clearly stipulate the effect of a subjective choice of foreign law, such as the National Consumer Credit Protection Act 2009 (Cth). See Proactive Building Solutions v Keck [2013] NSWSC 1500.

465

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the Rome Convention, and since 2009 by the Rome I Regulation.189 These instruments are similar to the common law, in that the parties’ express and implied choices of law are generally required to be enforced, with some exceptions.190 They also provide specific protection for consumers, and employees,191 and also for insureds.192 The default rule in the Rome I Regulation is the same as the common law default rule, requiring reference to the law of the place with which the contract has its closest and most real connection.193 However, unlike the common law, the Rome I Regulation includes a presumption that the place with which the contract has its closest connection is the place of habitual residence of the party whose performance under the contract is characteristic of the contract;194 for example, in a contract for the sale of goods, the governing law is the law of the seller’s habitual residence.195 This presumption was referred to in Fleming v Marshall.196 The Rome I Regulation specifically excludes renvoi.197 17.55  In 1992, the Australian Law Reform Commission, influenced by the reasoning for adoption of the presumption used in the Rome Convention, recommended that the Australian law be similarly modified, so that there should be a presumption that in the absence of an effective choice of law by the parties, the governing law should be the law of the place of the habitual residence of the party whose performance of the contract was characteristic of the contract.198 That recommendation has not been adopted in Australia. One basis for this reform is that it would add certainty and predictability to the determination of the objective proper law. The presumption has generally been regarded as effective and suitable in England, and therefore it might be expected to operate well in Australia. 17.56  The commission also recommended that all issues relating to formation of contract, including the parties’ capacity, be determined by the putative proper law.199 189. Regulation (EC) No 598/2008 of the European Parliament and of the Council of 17 June 2009 on the law applicable to contractual obligations (referred to as ‘Rome I Regulation’) came into effect on 17 December 2009, and replaced the Rome Convention on the Law Applicable to Contractual Obligations 1980 (the Rome Convention), which was given effect in the United Kingdom by the Contracts (Applicable Law) Act 1990 (UK). The Rome I Regulation and the Rome Convention have largely replaced the common law rules on choice of law for contract in the United Kingdom. It is unclear what form the UK rules on choice of law will take upon the UK’s withdrawal from the European Union in 2019 but it is likely that the Rome I Regulation will be enacted as UK legislation, with appropriate modifications. 190. Rome Convention Art 3; Rome I Regulation Art 3. 191. Rome Convention Arts 5, 6; Rome I Regulation Arts 6, 7. 192. Rome I Regulation Art 8. 193. Rome Convention Art 4(1); Rome I Regulation Art 4(2), (4). 194. Rome Convention Art 4(2). 195. Rome I Regulation Art 4(1)(a). Both the Rome Convention and the Rome I Regulation specifically define the objective proper law for particular types of contracts: Rome Convention Art 4(3), (4); Rome I Regulation Art 4(1). There are more specific contracts dealt with in the Rome I Regulation than in the Rome Convention. 196. (2011) 279 ALR 737; [2011] NSWCA 86 at [65]. In determining the objective proper law, Macfarlan JA emphasised the significance of the performance obligations of the lawyers: at [82]–[86]. This reasoning is not inconsistent with the characteristic performance obligation. 197. Rome Convention Art 20; Rome I Regulation Art 15. 198. Australian Law Reform Commission, Choice of Law, Report No 58, AGPS, Canberra, 1992, at [8.48]. The commission also made specific recommendations regarding contracts for the sale of land, for the sale of goods and for employment contracts: at [8.49]–[8.55]. 199. At [8.59].

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They recommended that in addition, questions of capacity could be determined by the law of the place where the party resides (that is, if the relevant party had capacity under either the putative proper law, or the place of their residence, that would suffice).200 It has also been recommended that a contract not be enforced by an Australian court if it would not be enforced by a court in the place where it was to be performed.201 17.57  In 2016, the Joint Standing Committee on Treaties of the Federal Parliament recommended that Australia should accede to the Hague Convention on Choice of Court Agreements, and noted that the legislation intended to give effect to that Convention would also implement the Hague Principles on Choice of Law in International Commercial Contracts (the Hague Principles).202 As at April 2018, this recommendation has not been acted upon, and it seems unlikely that it will be acted upon in the near future. Even if this is not so, the Hague Principles are not comprehensive, and many issues would remain to be determined under the current law. The Hague Principles only apply to international cases,203 to commercial contracts,204 and only deal with the situation where the parties have expressly or tacitly chosen the governing law.205 In some ways they are similar to the current Australian law — especially in terms of their support for party autonomy — but in many particulars they are different to the current rules on choice of law. For example, they would allow the parties to choose ‘non-state law’ as the applicable law.206 Enacting the principles would also clarify some points on which the current law is unclear.207

At [8.58]. At [8.17]. Report 166 (November 2016), [3.6]. Hague Principles, Art 1(1). Article 1(1). Articles 2(1), 4. Article 3, although this is stated to be subject to the law of the forum, and as noted above at 17.1, n 1, currently Australian law does not allow the choice of non-state law. 207. For example, they stipulate that a choice of law ‘does not refer to rules of private international law of the law chosen by the parties unless the parties expressly provide otherwise’: Art 8. 200. 201. 202. 203. 204. 205. 206.

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Chapter 18 Torts Introduction 18.1  The Australian choice of law rule for all multi-state torts requires the court to apply the law of the place where the tort occurred (the lex loci delicti commissi). Relative to the choice of law rules applicable for other areas of law, this is a straightforward rule. A number of difficulties still arise in multi-state tort choice of law, concerning the application of renvoi in multi-state torts, difficulties in locating the tort, and the classification of particular types of civil wrongs.

The general tort choice of law rule 18.2  There are three systems of law that are relevant in tort choice of law: the law of the place of the tort; the law of the forum; and the proper law of the tort. The law of the forum was prominent in the Australian choice of law rule until 2000, in the case of intranational torts, and until 2002, in the case of international torts.1 It is unusual for the law of the forum to be applied as such in any choice of law rule.2 In the two cases which established the current tort choice of law rule, the High Court was very critical of reference to forum law, holding instead that the governing law for cross-border torts is the law of the place of the tort. In reforming the rule for intranational torts in John Pfeiffer Pty Ltd v Rogerson, the High Court relied heavily on the implications of the Australian Constitution.3 In 2002, in Regie Nationale des Usines Renault SA v Zhang,4 a jurisdictional dispute, the High Court was required to determine the governing law, as one of the connecting factors relevant to deciding whether the Australian court should stay proceedings on the basis of forum non conveniens.5 In that case, the court held that in international cases, the applicable law should be the law of the place of the tort.6 In addition to the constitutional considerations which 1.

2. 3. 4. 5. 6.

This was because of the rule in Phillips v Eyre, which required the court to refer both to the law of the forum and the law of the place of the tort: (1870) LR 6 QB 1. It was very unclear what exactly the rule required in Australian law and, in particular, whether it was a rule of justiciability (that is, a threshold, subject matter jurisdictional question), or a rule of choice of law, or both. For discussion and explanation, see M Davies, ‘Exactly What is the Australian Choice of Law Rule in Torts Cases?’ (1996) 70 Australian Law Journal 711. This question is now chiefly of historical interest only, at least within Australia. The only other area in which the law of the forum is applied as such is family law. See Chapters 14–16. In some cases, Australian courts have also held that the law of the forum applies to equitable claims: see Chapter 19. (2000) 203 CLR 503 at 534–5; [2000] HCA 36. These considerations are discussed in detail at 11.13–11.20. (2002) 210 CLR 491; [2002] HCA 10. See 4.43. (2002) 210 CLR 491; [2002] HCA 10 at [75].

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were relevant in Pfeiffer v Rogerson, factors which influenced the adoption of the law of the place of the tort were the importance of decisional uniformity, respect for territorial sovereignty, the parties’ reasonable expectations, certainty and predictability.7 18.3  Aside from the law of the forum, and the law of the place where the tort was committed, a third option for determining the governing law developed in tort choice of law. By analogy to the objective proper law of the contract, it was suggested that in some cases it would be appropriate to apply the law of the legal system with the closest and most real connection to the tort, rather than the general rule.8 This is sometimes referred to as the proper law of the tort. Most legal systems use this concept in some form, usually as an exception,9 although in most cases the legal system with the closest and most real connection to the tort is the place of the tort, as identified by the primary choice of law rule. In England, the proper law of the tort was suggested as an exception to the general choice of law rule by two members of the House of Lords in Boys v Chaplin,10 and was subsequently applied in a number of English cases and by the Privy Council in Red Sea Insurance Co Ltd v Bouygues SA.11 In the United Kingdom, choice of law for tort was reformed by legislation in 1995,12 which requires application of the law of the place of the tort, subject to the proper law (or flexible) exception.13 Within the European Union, choice of law for non-contractual obligations, including tort, is now largely regulated by a European Union Regulation.14 The general tort choice of law rule in the

John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 528, 536–7, 539–40, 551, 553, 555; [2000] HCA 36; Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 517; [2002] HCA 10. 8. J H C Morris, ‘The Proper Law of a Tort’ (1951) 64 Harvard Law Review 881. The famous case of Babcock v Jackson 191 NE 2d 279 (1963) applied a similar idea — to disapply the law of the place of the tort in favour of the law of the forum, on the basis that the forum was the ‘centre of gravity’ of the case, referring to the facts that the parties both resided in the forum, the car trip in which the parties were engaged when the accident occurred commenced in and was intended to finish in the forum, and the car was registered and insured in the forum. 9. Cf Restatement of the Law (2nd) Conflict of Laws, American Law Institute, 1971, § 145, which establishes as a general rule a requirement to apply the law of the place which, ‘with respect to that issue, has the most significant relationship to the occurrence and the parties’. In determining this, § 145 identifies relevant factors of the place of injury; the place where the conduct causing the injury occurred; the parties’ domicile, residence, nationality, place of incorporation and place of business; and the place where the parties’ relationship, if there is one, is centred. The Restatement is currently in the process of being revised: see S Symeonides, ‘The Third Conflicts Restatement’s First Draft of Tort Conflicts’ (2017) 92 Tulane Law Review 1. 10. [1971] AC 356 at 380 (Lord Hodson), 390–1 (Lord Wilberforce). 11. [1995] 1 AC 190. 12. Private International Law (Miscellaneous Provisions) Act 1995 (UK) Pt III. 13. Private International Law (Miscellaneous Provisions) Act 1995 (UK) ss 11, 12. Defamation is excluded: s 13. The common law tort choice of law rule, and this legislation, continue to have a small role to play in England, for torts outside the scope of the Rome II Regulation. Most notably, the Regulation excludes violations of privacy and defamation. See Lord Collins (gen ed), Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012, pp 2252–82. It is not clear what form precisely the UK tort choice of law rules will take following the UK’s exit from the European Union in 2019; but it is likely that the Rome II Regulation will be enacted as UK legislation, with appropriate modifications. 14. Regulation (EC) of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), referred to as ‘Rome II Regulation’. See generally A Dickinson, The Rome II Regulation: The Law Applicable to Non-Contractual Obligations, Oxford University Press, Oxford, 2008. 7.

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Rome II Regulation requires application of the law of the place in which the damage arises,15 which is subject to displacement by two exceptions. If the parties are both resident in a place other than the place where the damage arose, the law of their joint habitual residence applies, but that exception is also subject to the application of the law of the place that is ‘manifestly more closely connected’ to the tort than the law of the place of the parties’ joint residence, or the place where the tort occurred.16 The proper law of the tort has been criticised on similar grounds to criticisms of the objective proper law of the contract,17 especially that it is uncertain and unpredictable in its application, and consequently that it impedes settlement. 18.4  Prior to 2000, Australian courts had applied the flexible exception in a number of cases.18 In John Pfeiffer Pty Ltd v Rogerson, Renault v Zhang and Neilson v Overseas Projects Corporation (Vic) Ltd, the High Court categorically excluded the possibility of this exception in intranational and in international torts respectively. The principal objection articulated by the High Court is that the exception is unacceptably uncertain and unpredictable.19 The court’s refusal to allow any exception to the application of the law of the place of the tort has been criticised.20 18.5  Therefore, the current position in Australia is that the governing law for multi-state torts is always the law of the place of the tort. This relatively simple position is rendered much more complicated by the High Court’s decision in Neilson v Overseas Projects Corp of Victoria to apply renvoi in multi-state torts.21

Renvoi 18.6  The doctrine of double renvoi applies in multi-state tort claims.22 Once it is proved or accepted that the choice of law rules of the place of the tort require non-local law to apply, an Australian forum court must determine how a court in the place of the tort (the forum delicti) would actually decide the case. The forum court must then decide the case in the same way. This means that the forum court must not only determine the result that the foreign court would reach after applying the foreign court’s own primary choice of law rule, it must also determine how the foreign court would deal with a problem of renvoi before it. 15. 16. 17. 18. 19.

20.

21. 22.

Rome II Regulation Art 4(1). Rome II Regulation Art 4(2), (3). See 17.18–17.19. Warren v Warren [1972] Qd R 386; Kemp v Piper [1971] SASR 25; Corcoran v Corcoran [1974] VR 164; Nalpantidis v Stark (No 2) (1996) 65 SASR 454 and 474. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 538; [2000] HCA 36; Renault v Zhang (2002) 210 CLR 491 at 516, 520; [2002] HCA 10. Members of the High Court reaffirmed their opposition to the flexible exception in Neilson v Overseas Projects Corp (Vic) Ltd (2005) 223 CLR 331 at 348, 357, 363–4; [2005] HCA 54. R Anderson, ‘International Torts in the High Court of Australia’ (2002) 10 Torts Law Journal 132 at 140–1; G Davis, ‘John Pfeiffer v Rogerson: Choice of Law in Tort at the Dawning of the 21st Century’ (2000) 24 Melbourne University Law Review 982; E James, ‘John Pfeiffer Pty Ltd v Rogerson: The Certainty of “Federal” Choice of Law Rules for Intranational Torts: Limitations, Implications and a Few Complications’ (2001) 23 Sydney Law Review 145 at 146, 163; R Mortensen, ‘ “Troublesome and Obscure”: The Renewal of Renvoi in Australia’ (2006) 2 Journal of Private International Law 1 at 24–5. (2005) 223 CLR 331; [2005] HCA 54. See 8.13–8.35.

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18.7  Until Neilson was decided in 2005, renvoi was not thought to be applicable in multi-state tort claims. There was little authority in the Commonwealth on renvoi in tort cases.23 In the United Kingdom and New Zealand, renvoi is expressly excluded in multi-state tort cases by legislation.24 Within Europe, it is excluded in the Rome II Regulation.25 Neilson involved a claim brought by a Western Australian resident against a Victorian company in the Supreme Court of Western Australia for damages for personal injuries suffered in the People’s Republic of China. By the time Neilson reached the High Court, the only question in issue was whether the proceedings, brought more than five years after the accident, had been commenced within time. The Chinese limitation period was one year and, if applied, would defeat the plaintiff ’s claim. The Western Australian limitation period at the time was six years. As has been seen,26 there were enormous uncertainties about the Chinese choice of law regime that was potentially applicable in the case, but a majority in the High Court accepted that the primary Chinese choice of law rule would have the law of Western Australia govern the case, and that China would recognise no remission of that question to Chinese law by reason of the Western Australian choice of law rule. As a result, it was held that a Chinese court would apply the Western Australian limitation period for the tort claim, and accordingly, using the theory of double renvoi, the High Court did so as well. 18.8  The decision in Neilson, that a reference by the forum’s choice of law rules to a foreign legal system incorporates a reference to all of the foreign law, including its choice of law rules, has had little impact in practice, and there are very few cases in which this aspect of Neilson has even been considered, much less applied. The issue arose in Hodgson v Dimbola Pty Ltd,27 a case concerning a workplace accident, although the issue is not discussed in terms of the doctrine of renvoi. The plaintiff lived in the Australian Capital Territory, and the employer conducted its business of furniture removal from premises in New South Wales. The employee was injured in the course of his employment in Queensland. Master Harper held that Queensland law was the governing law. The applicable Queensland law included that state’s workers’ compensation legislation, which included a provision identifying the governing law for the availability of a claim for damages in relation to the injury.28 This was applied, as part of substantive Queensland law, to indicate the law of New South Wales as the governing law for the question of whether a claim was available.29 This case suggests that some form of renvoi may be applicable for intranational torts,30 but also demonstrates some complications that can arise, when the reference by 23. 24.

25. 26. 27. 28. 29.

30.

The main exception was a statement in obiter in McElroy v McAllister 1949 SC 110 at 126. Private International Law (Miscellaneous Provisions) Act 1995 (UK) s 9(5); see, for example, Barros Mattos Junior v Macdaniels Ltd [2005] EWHC 1323 (Ch) at [48]. Private International Law (Choice of Law in Tort) Act 2017 (NZ) s 7(3). Rome II Regulation Art 24. See 9.6. [2009] ACTSC 59. Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 324(1). Master Harper held that the reference by the Queensland legislation to New South Wales law did not in terms include reference to the New South Wales limitation statute, and therefore that the Queensland limitation period was applicable: [2009] ACTSC 59 at [22]–[23]. Because Master Harper did not treat this as a situation of renvoi, he did not specifically consider how the Queensland court would have interpreted the reference to New South Wales law. His decision is consistent

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18.10

the governing law to a third legal system only covers some of the issues in dispute. In such a case, the court may have to apply the law of three places. 18.9  The use of double renvoi in tort cases necessarily compromises the objectives of the tort choice of law rule: territoriality, giving effect to the parties’ reasonable expectations, certainty, predictability and simplicity. Indeed, it seems that the use of renvoi in any area of law necessarily compromises the principles that underlie the forum’s primary choice of law rule.31 There is, nevertheless, some scholarly support for the use of renvoi.32 Briggs accepts that the doctrine of renvoi in tort cases does what the High Court in Neilson claimed it should do — see the forum court apply the whole of the law of the place where the tort occurred (including its choice of law rules) and deliver uniformity of outcome between the forum and the place of the tort.33 The use of renvoi might correct the unusual inflexibility of the Australian rule for choice of law in foreign tort litigation,34 although it would be preferable to do this openly through a proper law exception to the normal choice of law rule in tort.35

The place of the tort The general rule 18.10  The preliminary issue that must be determined in a multi-state tort problem is the location of the tort. In some cases, there is no difficulty in identifying the place of the tort. In others, it is far less clear. The question does not arise in the abstract, but in the context of a controversy in which the location of the tort indicates the governing law, and often affects the outcome of the dispute. Because so much turns on the location of the tort, and because there are so few exceptions to the application of the governing law, the parties might be expected to dispute the location of the tort. In John Pfeiffer Pty Ltd v Rogerson, the High Court acknowledged that it may be difficult to identify the place of the tort. Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ noted that:36 … the place of the tort may be ambiguous or diverse. Difficulty will arise in locating the tort if 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.

31. 32. 33.

34. 35. 36.

with single renvoi (assuming that the reference to law was a reference to the internal law of New South Wales rather than to its choice of law rule), rather than double renvoi, which was applied in Neilson. Mortensen, above n 20, at 14–17. R Yezerski, ‘Renvoi Rejected? The Meaning of “the Lex Loci Delicti” After Zhang’ (2004) 26(2) Sydney Law Review 273. A Briggs, ‘The Meaning and Proof of Foreign Law’ [2006] Lloyd’s Maritime and Commercial Law Quarterly 1 at 2–3; and see A Briggs, ‘In Praise and Defence of Renvoi’ (1998) 47 International and Comparative Law Quarterly 877. The arguments against this position have already been recounted: see 8.31–8.35. M Keyes, ‘The Doctrine of Renvoi in International Torts: Mercantile Mutual Insurance v Neilson’ (2005) 13 Torts Law Journal 1 at 14–15. M Keyes, ‘Foreign Law in Australian Courts: Neilson v Overseas Projects Corporation of Victoria Ltd’ (2007) 15 Torts Law Journal 9 at 29–30. (2000) 203 CLR 503 at 538–9; [2000] HCA 36.

473

18.10

Private International Law in Australia

Similarly, Kirby J recognised the difficulty of locating the place of the tort where a wrong has some connection with a number of states or territories, and observed that the problem was ‘a tricky one’.37 The issue of locating the tort also arises in jurisdictional disputes. Service of process out of the jurisdiction is authorised where the tort occurred within the forum, and where the cause of action arose in the forum.38 The latter was the ground on which jurisdiction was asserted in the leading case of Distillers Co (Biochemicals) Ltd v Thompson.39 Lord Pearson held that ‘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 occur?’.40 This statement, developed to identify the place of the tort in the context of establishing the court’s jurisdictional competency, has been adopted as the basic formula applicable in the context of tort choice of law.41 Many of the propositions that follow were developed in international jurisdiction cases. It may not be entirely appropriate simply to assume the relevance of their application in the choice of law context, because if liability depends on how that is assessed under the law of the place of the tort then the forum court must ask by reference to something other than the forum’s law of tort where in substance the wrong arose. As Briggs argued, the ‘substance’ of the tort could differ between countries.42 This is more significant in choice of law than it is in international jurisdiction, where the inquiry only demands that the court is satisfied that a tort occurred in the forum. In choice of law cases, this will demand an assessment as to whether a wrong has occurred in the place that is claimed to be the location of the wrong. That is an exercise that suggests a greater deference to the legal concepts of other countries than is needed in jurisdiction cases.

Negligence 18.11  A negligent act or omission is presumed to have occurred in the place where the act was committed or, in the case of an omission, where the act was supposed to have taken place.43 Thus if a person is injured in Ruritania but as a result dies in the forum, the negligence probably occurred in Ruritania, where in substance the cause of action arose.44 37. 38.

39. 40. 41. 42. 43. 44.

At 560, 563. See 2.66–2.67. The uniform rules of court, enacted in the Australian Capital Territory, New South Wales, South Australia, Tasmania and Victoria, have introduced different terminology to that which is still found in the rules of the other jurisdictions. The uniform rules authorise service outside Australia where the claim ‘is founded on a tortious act or omission’ and either the act or omission was done or occurred ‘wholly or partly’ in Australia or the Australian Capital Territory: Court Procedures Rules 2006 (ACT) r 6502(a); Uniform Civil Procedure Rules 2005 (NSW) Sch 6, para (a); Supreme Court Civil Rules 2006 (SA) r 40A(a)(i); Supreme Court Rules 2000 (Tas) r 147A(a)(i); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 7.02(a)(i). [1971] AC 458. At 468. Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 at 446; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 567. A Briggs, ‘The Duke of Brunswick and Defamation by Internet’ (2003) 119 Law Quarterly Review 210 at 212–13. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at [43]; Electro Optic Systems Pty Ltd v State of New South Wales (2012) 273 FLR 304; [2012] ACTSC 184 at [126]. Koop v Bebb (1951) 84 CLR 629 at 645.

474

Torts



18.14

Much may depend on how the allegation of negligence is expressed. In product liability claims, as was alluded to in the joint judgment in John Pfeiffer Pty Ltd v Rogerson,45 the allegation may be defective manufacture, in which case the tort is presumed to occur in the place of manufacture. In some product liability cases, the court may accept alternatively that the negligence was a failure to warn of the risks associated with the product. In this case, the place of the tort could be the place in which the product was marketed or sold.46 The court is more likely to accept an argument that the failure to warn was the place where the tort occurred in consumer cases than in commercial cases.

Misrepresentation 18.12  The general rule is that a fraudulent or negligent misrepresentation is presumed to have occurred where the communication alleged to be a misrepresentation was received. This is the same as the rule applicable in international jurisdiction cases,47 and was confirmed for choice of law purposes in Voth v Manildra Flour Mills Pty Ltd.48 The issue before the High Court in Voth was whether service outside New South Wales should be set aside on the ground of forum non conveniens.49 One of the factors relevant to determining that question is the governing law. Mason CJ and Deane, Dawson and Gaudron JJ held that the alleged tort occurred in the place to which the communication was directed, so long as it could have been reasonably anticipated that the plaintiff would have received it or had it brought to their attention in that place.50 For most cases, the place where the plaintiff ultimately acted on the representation will not be decisive.51 18.13  Claims for breach of the statutory prohibition against misleading or deceptive conduct52 are often analogised to misrepresentation for the purposes of jurisdiction.53 These breaches are taken to have occurred at the place where the misleading statement was directed and intended to be acted upon.54 As noted below,55 claims for misleading or deceptive conduct are not usually subjected to the tort choice of law analysis in terms of establishing entitlement to relief. 18.14  Passing off, which is based on misrepresentation, is located at the place where the statement was directed and intended to be acted upon. A statement which is published

45. 46. 47. 48. 49. 50. 51. 52.

53. 54. 55.

(2000) 203 CLR 503 at 538–9; [2000] HCA 36. See 2.68. See 2.75. (1990) 171 CLR 538. See 4.40–4.42. (1990) 171 CLR 538 at 568. Hunter Grain Pty Ltd v Hyundai Merchant Marine Co Ltd (1993) 117 ALR 507 at 520–1. Australian Consumer Law s 18(1), which replaced s 52(1) of the Trade Practices Act 1974 (Cth), effective from 1 January 2011. The Australian Consumer Law is found in Sch 2 to the Competition and Consumer Act 2010 (Cth). This is generally true at the jurisdictional stage: see 2.76. At the choice of law stage, claims for breach of s 18(1) of the Australian Consumer Law are generally not treated as tortious. See 18.31. Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539. See also Valve Corporation v Australian Competition and Consumer Commission [2017] FCAFC 224 at [127]–[134]. See 18.31.

475

18.14

Private International Law in Australia

at large, for example, on a generally available website, and is not specifically directed or targeted at Australians, is not regarded as located in Australia.56

Defamation 18.15  A defamation occurs where the defamatory publication is received in a comprehensible form and causes damage to the plaintiff ’s reputation.57 This principle is not affected by the uniform Australian defamation legislation, as cross-border claims that fall within the Acts are not governed by the law of the place where the tort occurred.58 Claims that fall outside the terms of the uniform defamation legislation are still governed by the common law principles that require a location to be ascribed to defamatory communications. As discussed in Chapter 2,59 in Dow Jones & Co v Gutnick60 the High Court held that an alleged defamation on the internet occurs where a publication is received and damage to reputation occurs.61 For choice of law purposes, this means that one publication could be subject to a range of different defamation laws: that is, at common law, the law of the place of the tort is to be applied separately to each publication made in a different country.62

Maritime torts 18.16  Torts that take place on board a ship that is in port are taken to occur in the littoral jurisdiction.63 Those that occur on the high seas are more problematic. For torts that are internal to the vessel, the place of the tort is deemed to be the country where the ship is registered.64 The place of registration is difficult to locate for Australian-registered ships, as this does not necessarily identify a state or territory as the location of the tort.65 If the tort is not internal to the vessel, the general maritime law as applied in the forum should be applied.66

56. 57. 58. 59. 60. 61. 62. 63. 64. 65.

66.

Ward Group Pty Ltd v Brodie & Stone plc (2005) 143 FCR 479; [2005] FCA 471. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 606–7. See 18.18–18.21. See 2.70–2.74. (2002) 210 CLR 575; [2002] HCA 56. At 606. At 639. Union Shipping New Zealand Ltd v Morgan (2002) 54 NSWLR 690 at 730–3, 736; [2002] NSWCA 124; Booth v Phillips [2004] EWHC 1437 (Admlty) at [57]. Blunden v Commonwealth (2003) 218 CLR 330; [2003] HCA 73 at [25]; CMA CGM SA v Ship ‘Chou Shan’ (2014) 311 ALR 234; [2014] FCAFC 90 at [91]. This remains unresolved. Cf Blunden v Commonwealth of Australia (2003) 218 CLR 330; [2003] HCA 73, where the tort occurred on the high seas but, as the claim was brought against the Commonwealth, the High Court limited the decision to questions of federal jurisdiction. Applying s 80 of the Judiciary Act 1903 (Cth), the court applied the law of the forum (the Australian Capital Territory). The decision provides no guidance where claims are brought against other defendants for torts on the high seas: A Mutton, ‘Choice of Law on the High Seas: Blunden v Commonwealth’ (2004) 26 Sydney Law Review 427. CMA CGM SA v Ship ‘Chou Shan’ (2014) 311 ALR 234; [2014] FCAFC 90 at [92].

476

Torts



18.19

Choice of law for defamation 18.17  The choice of law rule for most torts is the common law rule described above. Choice of law within Australia has now been significantly reformed by the enactment of uniform defamation legislation by all the states and territories. The general tort choice of law rule applies for foreign defamations and defamations that are not wholly internal to Australia.

Defamation within Australia 18.18  Uniform legislation applies in all the states and territories, which harmonises the substantive laws of defamation.67 An innovation of this legislation was specific choice of law rules for alleged defamations that occur within Australia only. These choice of law rules apply for defamations that occur within ‘the geographical area of Australia’.68 This means anywhere in Australia and its external territories, but not outside. The Defamation Acts’ choice of law rule is inapplicable to foreign defamations. For alleged defamations within Australia, two situations must be distinguished. 18.19  The first is where the alleged defamatory material ‘is published wholly within a particular Australian jurisdictional area’. This means the alleged defamation occurs within one state or one territory only. The language of the legislation that gives the precondition for the operation of this rule is vague. It is unclear whether this means that, objectively assessed, the material was not published in any more than one state or territory; or whether, in a defamation claim brought in a state court, the plaintiff ’s claim for redress is limited to damages for an injury caused by a publication allegedly occurring in one nominated state or territory only. The difference is significant if, for example, there is an Australia-wide broadcast, but the plaintiff sues for defamation in Victoria to the extent only that the broadcast was received in Victoria. The latter view requires the court to accept the parties’ decision to litigate only to the extent that the material was published in Victoria. It is also the most workable view, as it does not require the court to take judicial notice, presumably against the parties’ wishes, of the fact that, despite the pleadings limiting the issues in dispute to a publication in Victoria, the defamatory material was actually broadcast over the whole of the country. If this view is correct, so long as the plaintiff ’s claim has been limited to redress for an alleged defamation in one state or territory only, the governing law is the law of that place.69 This is also 67.

68.

69.

The states and the Northern Territory enacted the Defamation Act, which was passed in all the states in 2005 and in the Northern Territory in 2006. The Australian Capital Territory did not enact a separate Act, but instead added the provisions to the Civil Law (Wrongs) Act 2002 (ACT), where they are found in Pt 9.2. For detailed discussion, see D Rolph, ‘A Critique of the National, Uniform Defamation Laws’ (2008) 16 Torts Law Journal 207. Civil Law (Wrongs) Act 2002 (ACT) s 123(5); Defamation Act 2005 (NSW) s 11(5); Defamation Act 2006 (NT) s 10(5); Defamation Act 2005 (Qld) s 11(5); Defamation Act 2005 (SA) s 11(5); Defamation Act 2005 (Tas) s 11(5); Defamation Act 2005 (Vic) s 11(5); Defamation Act 2005 (WA) s 11(5). Subsequent references in this chapter will be to the Defamation Act 2005 (NSW), which is identical, so far as the current discussion is concerned, to the legislation of the other states and territories, although the provisions of the Australian Capital Territory legislation are not identically numbered. Defamation Act 2005 (NSW) s 11(1).

477

18.19

Private International Law in Australia

effectively the position at common law,70 but it differs from the position that holds under the uniform defamation legislation where the allegation rests on publication in more than one Australian state or territory. Further, it means that if the plaintiff were to sue in New South Wales, but only to the extent that there was a defamatory publication in the Australian Capital Territory, the New South Wales court would be required only to apply Australian Capital Territory law. Such a case is likely to be transferred to the Australian Capital Territory (that is, the forum delicti) for determination.71 18.20  If allegedly defamatory material is published in more than one state or territory, the legislation states that the law of the cause is ‘the substantive law applicable in the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection’.72 To identify the place in Australia most closely connected with the harm, a court may take into account:73 (a) the place at the time where the plaintiff was ordinarily resident or [if the plaintiff is a corporation] its principal place of business; … (b)  the extent of publication [in each relevant state and territory]; … (c)  the extent of harm sustained by the plaintiff [in each relevant state and territory]; and (d)  any other matter that the court considers relevant.

Consequently, when it applies, this legislation effectively ensures that a national defamation is governed by the law of one state or territory only.74 This is a significant change from the common law place of the tort rule, which in a claim relating to a publication across the whole of Australia required the forum court to apply the law of each and every state or territory in which the publication occurred, on the ground that a national defamation results in a separate tort simultaneously taking place in each separate state and territory.75 18.21  The legislation also excludes renvoi.76 The Acts expressly provide that, for claims within the terms of the Acts, ‘the substantive law applicable in an Australian jurisdictional area does not include any law for prescribing rules for choice of law’ which are different from those set out in the Acts.77 Because the regime has been adopted in all Australian jurisdictions, this provision should be redundant.

70. 71. 72. 73. 74.

75. 76. 77.

See 18.22–18.23. See 4.59–4.73. Defamation Act 2005 (NSW) s 11(2). Defamation Act 2005 (NSW) s 11(3). In applications for a transfer of proceedings under the cross-vesting legislation, this provision may be relevant in identifying the governing law. In several such applications, the court has held that, for lack of evidence as to what harm has been suffered, it is not possible to identify the governing law at the interlocutory stage: see Bateman v Fairfax Media Publications Pty Ltd [2013] ACTSC 72 at [88]; Pugh v Morrison [2011] ACTSC 44 at [25]; see also Carey v Australian Broadcasting Corp (2010) 77 NSWLR 136; [2010] NSWSC 709 at [32]–[33]. Gorton v Australian Broadcasting Corp (1973) 22 FLR 181; Australian Broadcasting Corp v Waterhouse (1991) 25 NSWLR 519. See 8.13 ff. Defamation Act 2005 (NSW) s 11(4).

478

Torts



18.25

Foreign defamations 18.22  Defamation allegedly occurring in foreign places (or occurring partly within and partly without Australia) is not covered by the uniform legislation, so such cases are determined by reference to the common law choice of law rule of Renault v Zhang.78 Therefore, whether the Australian forum is a state or territory court, all questions of substance concerning the defamation will be determined by the law of all places relevant to the claim in which the material was received in a comprehensible form. 18.23  In most cases when an Australian court is dealing with a claim relating to an alleged defamation occurring in a foreign place, it is likely also to include an allegation that the defamation occurred in Australia. In this case, it is therefore likely that, if the matter is being heard by a state court, the Australian aspects of the claim will be dealt with in accordance with the Defamation Act’s choice of law rules and the foreign aspects of the claim will be dealt with in accordance with Renault’s place of the tort rule. So, if it were successfully established in Queensland that the plaintiff had been defamed simultaneously by the one publication throughout Australia, New Zealand and Papua New Guinea, it is likely that, to the extent of publication within Australia, the court would have to apply the law of the one state or territory most closely connected with the harm but, to the extent of publication in New Zealand and Papua New Guinea, it would separately apply the defamation laws of those countries.

Circumstances in which the governing law may not be applied 18.24  Following the reform to the tort choice of law rule, there remain few circumstances which justify the court applying the law of any place other than that of the law of the place of the tort. The distinction between substance and procedure, and the court’s general ability to refuse to apply foreign law that offends forum public policy, will in some cases lead to the non-application of rules of the otherwise applicable governing law.

Procedural rules 18.25  As discussed in Chapter 7, in Pfeiffer v Rogerson the High Court not only reformed the tort choice of law rule, but also narrowed the traditional definition of matters of procedure.79 This narrower definition of procedure is consistent with the reform to the tort choice of law rule, in that it reduces the extent to which forum law is applied in multi-state tort disputes. Two very significant issues remain, concerning the exclusion of provisions of foreign law on the basis of their classification as procedural. The first is whether foreign rules relating to type and quantum of damages are to be classified as substantive or procedural. In Pfeiffer v Rogerson, the specific issue in dispute was the classification of rules relating to quantum of damages. The court held that in intra-Australian disputes these are certainly regarded as matters of substance and governed by the law of the place of the tort. In Renault 78. 79.

(2002) 210 CLR 491; [2002] HCA 10. See 7.27–7.28.

479

18.25

Private International Law in Australia

v Zhang, the High Court specifically reserved the question as to the proper classification of rules relating to the types and quantum of damages in international cases.80 This issue remains unsettled in Australia, although it is likely that foreign law would be applied if it was the law of the cause.81 18.26  The second outstanding issue relating to the distinction between procedural and substantive rules of the law of the place of the tort arises as a result of the enactment of civil liability legislation within Australia. In the early part of this century, all the Australian states and territories enacted civil liability legislation which effects significant, but diverse, reforms to the common law.82 The detailed regulation of certain types of litigation, and the diversity in that regulation between the states and territories, raises the issue as to the classification of those provisions as substantive or procedural, and consequently the extent to which they will be enforced in the courts of the other states and territories.83 Those provisions ought generally to be treated as substantive, because they affect the parties’ rights and liabilities. 18.27  Some of the civil liability statutes contain what are referred to as ‘self-declaring’ provisions, which attempt to classify specific provisions within the legislation as substantive.84 Those self-declaring provisions will only certainly be effective in litigation in the forum in which the legislation is enacted.85 Provisions which are held to be procedural will not be applied by the courts of the other states and territories,86 and provisions which are held to be substantive will only be applied by the courts of the other states and territories if they form part of the governing law of the tort.

Public policy 18.28  The court’s power to refuse to apply the normal law of the cause on the ground that to do so would be contrary to the public policy of the forum, is the same for tort cases as it is in any other choice of law case. Accordingly, it is not available to deny application of the law of another state or territory where that is the place of the tort, as s 118 of the Australian Constitution requires that such a law be given full faith and credit.87 Public policy may be applied in exceptional cases to disapply the law of a foreign country in an

80. 81. 82.

83. 84. 85. 86. 87.

(2002) 210 CLR 491 at 520; [2002] HCA 10. McGregor v Potts (2005) 68 NSWLR 109 at 122; [2005] NSWSC 1098. Civil Law (Wrongs) Act 2002 (ACT); Civil Liability Act 2002 (NSW); Personal Injuries (Civil Claims) Act 2007 (NT); Personal Injuries (Liabilities and Damages) Act 2002 (NT); Civil Liability Act 2003 (Qld); Personal Injuries Proceedings Act 2002 (Qld); Civil Liability Act 1936 (SA); Civil Liability Act 2002 (Tas); Wrongs Act 1958 (Vic); Civil Liability Act 2002 (WA). See M Davies, ‘Choice of Law After the Civil Liability Legislation’ (2008) 16 Torts Law Journal 104. See, for example, Personal Injuries Proceedings Act 2002 (Qld) s 7(1), which was in issue in Hamilton v Merck & Co Inc (2006) 66 NSWLR 48; [2006] NSWCA 55. Hamilton v Merck & Co Inc (2006) 66 NSWLR 48; [2006] NSWCA 55; Kok v Sheppard [2009] NSWSC 1262. Hodgson v Dimbola Pty Ltd [2009] ACTSC 59 at [24]. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 533–4; [2000] HCA 36. Kirby J (at 559, 562–3) concurred in the adoption of this choice of law regime. Callinan J thought that the application of the law of another state or territory on the basis of public policy should be permissible (at 576). His Honour’s view is contrary to authority and is not shared in by any other member of the court.

480

Torts



18.30

international tort case. In Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5),89 the English choice of law rule required reference to Iraqi law. The House of Lords refused to apply part of that law, on the basis that it was offensive to English public policy to the extent that it violated United Nations Security Council Resolutions.90 88

Claims and defences under forum legislation 18.29  As explained in Chapter 12, in some common law countries, including Australia, there is a tendency not to apply the normal choice of law analysis to claims and defences that arise under forum legislation.91 If the forum legislation expresses its scope of application, by way of a multilateral or unilateral choice of law rule, or by some other criteria, then Australian courts are constitutionally bound to apply that legislation without regard to the usual choice of law analysis. If the legislation does not express its scope of application, as explained in Chapter 12, there are two methods of determining whether the legislation should be applied: first, by reference to the usual choice of law rule; and second, by interpreting the local statute to determine whether parliament intended that it should apply in the circumstances of the case. There is a lack of consistency in the cases — in some cases the courts take the first approach, and in others they take the second. 18.30  In Insight Vacations Pty Ltd v Young,92 the plaintiff, a resident of New South Wales, purchased a package tour of Europe from the defendant, an Australian company. The plaintiff was injured in Slovakia while on the tour, and brought proceedings against the defendant in New South Wales, for breach of the term implied by the Trade Practices Act 1974 (Cth) that the supplier of services to a consumer will render those services with due care and skill.93 The issue as to the application of the Trade Practices Act was not addressed. It was simply assumed that it was applicable.94 The defendant relied on an exclusion clause in the contract, which it claimed was effective according to the New South Wales Civil Liability Act.95 The High Court held, for several reasons, that this defence was not made out. One of the reasons was that the court held that the relevant provision of the Civil Liability Act, which did not contain an express indication as to its scope of application, should be interpreted only to apply to contracts that were to be performed wholly within New South Wales.96 88. 89. 90. 91. 92. 93. 94.

95.

96.

Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 516–17, 520, 528–9; [2002] HCA 10. [2002] 3 All ER 209. See 8.67–8.68. Foreign legislation, on the other hand, is only applicable if it forms part of the lex causae: see 12.23–12.27. (2011) 243 CLR 149; [2011] HCA 16. Trade Practices Act 1974 (Cth) s 74(1). The equivalent provision under the Australian Consumer Law 2010 is s 60, which is expressed to be a consumer ‘guarantee’. The implied consumer warranties under the Trade Practices Act 1974 (Cth) applied to all contracts, the objective proper law of which was the law of an Australian state or territory: s 67. It is not clear whether the objective proper law of this contract would have been that of New South Wales, as the services were to be provided outside Australia. Civil Liability Act 2002 (NSW) s 5N, which relevantly provided that ‘a term of a contract for the supply of recreational services may exclude, restrict or modify any liability to which [the Division of the Civil Liability Act relating to liability arising from recreational activities] applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill’. (2011) 243 CLR 149 at [35].

481

18.31

Private International Law in Australia

18.31  As explained in Chapter 2, claims for breach of the statutory prohibition of misleading or deceptive conduct97 are often characterised as tortious for the purpose of establishing the courts’ jurisdiction.98 That analogy is generally not applied at the choice of law stage.99

Classification of specific issues 18.32  A number of issues related to tort create problems of classification: that is, whether they should be determined as an aspect or incident of the underlying tort claim, or whether they should be classified as non-tortious, and therefore governed by a different law. This is especially the case where the common law of tort has been reformed by statute, and the consequent rights to compensation can, in a general sense, be considered part of the law of civil wrongs but not necessarily of the law of torts. Other issues fall in the grey area between tort and contract or tort and property, and therefore present different problems of classification. Some of the cases referred to below were determined according to the old tort choice of law rule. That choice of law rule, referred to as the rule in Phillips v Eyre, required the courts to refer both to the law of the forum and the law of the place of the tort. Appropriate adaptations may have to be made to their treatment where the law of the place of the tort alone is the law of the cause. In addition, the application of any statute always depends on the particular wording of the statute, which must always be considered. The following discussion assumes that the statutes in question do not contain any indication as to their intended scope of application in cross-border situations.100

Survival of actions 18.33  In most common law countries, including every Australian state and territory, legislation provides for a cause of action vested in a deceased person to survive for the benefit of that person’s estate, or a cause of action subsisting against a deceased person to survive against that person’s estate.101 This should be treated as a matter of substance rather than a matter of procedure, because it directly affects the parties’ rights and liabilities.102 Therefore, the law of the place of the tort should be applied to this question. In Puttick v Tenon Ltd,103 the claim commenced by Mr Puttick in the Victorian courts was continued by his wife after Mr Puttick died, under s 29 of the Administration and Probate Act 1958 (Vic).104 There was Australian Consumer Law s 18(1), which replaced s 52(1) of the Trade Practices Act 1974 (Cth). See 2.76. In relation to the application of the Australian Consumer Law in international cases, see 17.50–17.51. See 12.9. Civil Law (Wrongs) Act 2002 (ACT) s 15; Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2; Law Reform (Miscellaneous Provisions) Act 1956 (NT) Pt II; Succession Act 1981 (Qld) s 66; Survival of Causes of Action Act 1940 (SA) s 2; Administration and Probate Act 1958 (Tas) s 27; Administration and Probate Act 1958 (Vic) s 29; Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4. 102. R Garnett, Substance and Procedure in Private International Law, Oxford University Press, Oxford, 2012, para 5.24. 103. (2008) 238 CLR 265; [2008] HCA 54. 104. Mrs Puttick also claimed on behalf of herself and the Putticks’ children as dependants of Mr Puttick: see 18.34. 97. 98. 99. 100. 101.

482



Torts

18.35

considerable controversy as to the applicable law in this case, but whatever it was, it was certainly not Victorian law. The issue as to the applicability of the Administration and Probate Act was not addressed at first instance or on either of the two appeals, to the Victorian Court of Appeal and the High Court. Application of the law of the forum is not consistent with the narrower conception of procedure which was established in Pfeiffer v Rogerson.105

Wrongful death 18.34  There is no action for wrongful death at common law.106 Most common law systems grant the spouse and dependants of a deceased person a right of action by statute, in cases where the death is caused by a wrongful act, neglect or default.107 The liability of the defendant is a question of substance and should be determined according to the law of the place of the tort.108 In Dyno Wesfarmers Ltd v Knuckey, the New South Wales Court of Appeal held that the wrongful death statute of the law of the place of the tort was applicable.109 In Cox v Ergo Versicherung AG, the United Kingdom Supreme Court held that the United Kingdom Fatal Accidents Act 1976 did not apply to an accident that occurred in Germany, for three reasons: first, German law was the governing law of the claim; second, the Fatal Accidents Act did not have an extraterritorial application; and third, the Fatal Accidents Act did not have an internationally mandatory effect in English litigation.110

Nominal defendants 18.35  In Australia, people injured in motor vehicle accidents are generally able to recover compensation, either through no-fault accident compensation schemes or through compulsory third party (‘CTP’) insurance. In the Australian Capital Territory and the states, CTP schemes either provide the basis for compensation for injuries resulting from motor vehicle accidents or are available as limited alternatives to the no-fault schemes. These jurisdictions have laws providing for an injured person to bring a claim against a governmental defendant, referred to as a ‘statutory’ or ‘nominal’ defendant, when the vehicle causing the

105. (2000) 203 CLR 503; [2000] HCA 36. See 7.26–7.28. 106. Baker v Bolton (1808) 1 Camp 493; 170 ER 1033. 107. Civil Law (Wrongs) Act 2002 (ACT) s 24; Compensation to Relatives Act 1897 (NSW) s 3; Compensation (Fatal Injuries) Act 1974 (NT) s 7(1); Civil Proceedings Act 2011 (Qld) s 64; 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. In Puttick v Tenon Ltd, in addition to continuing Mr Puttick’s claim on behalf of his estate, Mrs Puttick also claimed on behalf of herself and the Putticks’ children, relying on the Wrongs Act 1958 (Vic): (2008) 238 CLR 265; [2008] HCA 54. Whatever the governing law of the tort in this case was, it was not Victorian law (see 18.33), but the applicability of the Victorian Wrongs Act was not challenged or remarked upon by the primary judge or either of the appellate courts. 108. Cox v Ergo Versicherung AG [2014] AC 1379. 109. [2003] NSWCA 375. It made no difference to the outcome, because there was no difference between the wrongful death legislation of Papua New Guinea (the locus delicti) and of New South Wales (the forum): at [29]. See also Elliott v Bali Bungy Co [2002] NSWSC 906 (an application for leave to proceed, in which case Young CJ in Eq held that he should treat an action under the New South Wales wrongful death legislation as a tort claim). 110. Cox v Ergo Versicherung AG [2014] 1 AC 1379.

483

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injury cannot be identified or is not insured.111 This usually ensures that  compensation is available to the injured person, but notably fails to do so in multi-state cases. In Istvan v Istvan,112 an accident was caused by an unidentifiable vehicle in New South Wales, and proceedings were brought in Victoria against the New South Wales nominal defendant. This was classified as a claim in tort and the rule in Phillips v Eyre applied. The  claim therefore failed, as the law of the forum — Victoria — did not provide for an action against the New South Wales nominal defendant. After Pfeiffer, analysis of this scenario could require the plaintiff to proceed in the forum against the nominal defendant of the state or territory where the tort occurred. There would appear to be no reason why a court in the forum state could not render judgment against an interstate nominal defendant, as the whole of the law of the state or territory where the tort occurred should be applicable.

Direct actions against insurers 18.36  CTP schemes usually provide that an injured person can bring an action against the insurer of a motor vehicle when the insured person is dead or cannot be served with the initiating process. In multi-state cases, these direct actions against insurers have been classified as either actions in tort or actions in contract. If the action is classified as tortious, there must be a direct action against the insurer under the law of the place of the tort.113 The  problems created by classifying these actions as tortious are shown clearly by  the Victorian case of Ryder v Hartford Insurance Co.114 The accident in that case occurred in Victoria and proceedings were commenced there, but the vehicle had been insured in South Australia. The law of Victoria provided for direct actions against insurers, but only if the vehicle was registered and insured in Victoria. Jenkinson J classified a direct action against an insurer as a claim in tort. Under the rule in Phillips v Eyre, the law of South Australia could not apply, as that state was neither the forum nor the place of the tort. The claim therefore failed. In South Australia, the preferred approach was to classify a direct action against an insurer as quasi-contractual.115 The proper law of the contract is therefore the law of the cause, and as in most cases this will be the place where the vehicle is insured, the claim will normally be successful.

Interspousal immunity 18.37  The common law did not permit spouses to sue each other in tort. This rule has been abolished throughout Australia by s 119 of the Family Law Act 1975 (Cth), but exists in other countries and therefore may arise in international cases. How the question of 111. Road Transport (Third-Party Insurance) Act 2008 (ACT) Pt 2.7; Motor Accidents Compensation Act 1999 (NSW) Pt 2.4; Motor Accident Insurance Act 1994 (Qld) s 33; Motor Vehicles Act 1959 (SA) ss 115–116; Motor Accidents (Liabilities and Compensation) Act 1973 (Tas) s 16; Transport Accident Act  1986 (Vic) s 96; Motor Vehicle (Third Party Insurance) Act 1943 (WA) ss 7(3), 8(1); cf Motor Accidents (Compensation) Act (NT). 112. SC (Vic), Lush J, 29 October 1982, unreported. 113. Cf Li Lian Tan v Durham and General Accident & Life Assurance Corp Ltd [1966] SASR 143 at 149. 114. [1977] VR 257. 115. Plozza & Plozza v South Australian Insurance Co Ltd [1963] SASR 122; Hodge v Club Motor Insurance Agency Pty Ltd (1974) 7 SASR 86.

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interspousal immunity is to be classified is still unresolved, but in Warren v Warren116 two alternative approaches were suggested. The first is to treat the issue as tortious. This requires application of the law of the place of the tort, meaning the action would fail if interspousal immunity were recognised there. The second approach taken to this issue in Warren was to classify it as a question of personal capacity governed by the law of the place where the parties were domiciled.117 Since married women are now recognised as having an independent domicile, interspousal immunity can presumably be used successfully to defend an action if recognised under the law of either the husband’s or the wife’s place of domicile.118

Indemnity 18.38  An indemnity is an obligation to compensate a person for any loss caused to that person by the claim of a third party, including a successful claim in tort. The obligation can arise by contract or by the operation of a statute. The older cases sometimes classified the question of indemnity as tortious,119 and sometimes as quasi-contractual.120 An obligation to indemnify is classified as a quasi-contractual question that is governed by the proper law of the obligation, objectively determined. Sweedman v Transport Accident Commission121 was discussed in Chapters 11 and 12.122 It concerned a motor accident in New South Wales which was assumed to be the fault of a New South Wales resident, and in which two Victorian residents suffered injuries. In accordance with the terms of the no-fault injury compensation scheme available to its contributors, the Victorian Transport Accident Commission paid compensation to the Victorian residents. Then, as was provided for under the Transport Accident Act 1986 (Vic), the commission brought proceedings in the Victorian courts for an indemnity from the New South Wales resident who was assumed to have been responsible for the accident. The case was taken to the High Court of Australia where, in the joint majority reasons of Gleeson CJ and Gummow, Kirby and Hayne JJ, it was held that the obligation ‘to indemnify was distinct from the underlying claim in tort’.123 Their Honours therefore denied a tortious classification to the question of indemnity, and held that the matter was quasi-contractual. As a result, it was governed by ‘the law of the State with which the obligation … to indemnify … has the closest connection’.124 Accordingly, questions of indemnity are governed by the objective proper law of the obligation. As an indemnity does not normally arise by consent, there would appear to be no role in determining the applicability of an indemnity for the subjective proper law of the obligation.125

116. 117. 118. 119. 120. 121. 122. 123. 124. 125.

[1972] Qd R 386. See also Lister v McAnulty [1944] 3 DLR 673. See 10.17–10.18. Wilson Electric Transformer Co Pty Ltd v Electricity Commission of New South Wales [1968] VR 330 at 332. Nominal Defendant v Bagot’s Executor & Trustee Co Ltd [1971] SASR 346. (2006) 226 CLR 362; [2006] HCA 8. See 11.17–11.18 and 12.14. (2006) 226 CLR 362; [2006] HCA 8 at [27]. At [29]. See 17.7–17.13.

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18.39  While the High Court’s settling of the choice of law rule for indemnities is welcome, the actual application of the rule in Sweedman is more doubtful. The majority in the High Court held that the obligation to indemnify was governed by the law of Victoria, which — by virtue of the Transport Accident Act 1986 (Vic) — provided that the commission was entitled to an indemnity. Two alternative reasons were given as to why the law of the cause in Sweedman was Victorian. The first is the more specious. The obligation to indemnify was created by Victorian legislation, and the governing law should be the source of legal compulsion for the making of the compensation payments.126 This is a bootstrapping argument. It effectively means that the Victorian legislation should be enforced against an out-of-state resident for an out-of-state accident because Victoria had exercised legislative power with a claimed extraterritorial effect. The second reason given by their Honours is only marginally better. The Victorian legislation had created the obligation to pay compensation to the injured parties, and the duty to indemnify the commission only arose after that compensation had been paid. Victorian law was therefore more closely connected with the obligation to indemnify.127 This approach, too, places too much weight on the fact that Victoria had legislated to create the obligation to indemnify when determining whether that means that effect should be given to that claimed entitlement to an indemnity through a choice of law rule. Further, it prejudges the purpose of using the choice of law rule. The multilateral choice of law rule should indifferently identify a law that will indicate whether or not there is an obligation to indemnify. The Sweedman approach suggests that, because Victorian law created an obligation to indemnify and New South Wales law did not, the choice of law rule should select Victorian law as the law of the cause. In other words, there is a preference for the law that recognises an indemnity over the law that denies it. It would appear that the choice of law rule for indemnities would hold greater integrity if issues such as a state’s claim to exercise extraterritorial legislative power and the existence or otherwise of the obligation to indemnify were regarded as irrelevant to the identification of the objective proper law. As with other proper law analyses, it is better that this proceed purely by reference to geographical connections. If this had happened in Sweedman, the residence of the defendant in New South Wales and the fact the accident had occurred there would, at the least, have given the law of that state a stronger claim to being selected as the proper law of any indemnity obligation.

Contribution 18.40  Under the common law, when more than one person is liable for a tort, each tortfeasor is liable to compensate for the full amount of the damage. If one tortfeasor does pay compensation in full, that person is entitled to contribution from the others. Legislation in the states and territories reflects the entitlement of a tortfeasor to contribution from other tortfeasors. Older cases classified the right to contribution as tortious, and held that the contribution being claimed must be available under the law of the place of the

126. (2006) 226 CLR 362; [2006] HCA 8 at [31]. 127. At [30], [32].

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tort. By analogy to the case of indemnity, and following the High Court’s classification of indemnities in Sweedman, entitlement to contribution is more akin to a restitutionary entitlement than to tort, notwithstanding that the primary liability recovered against the party claiming a contribution is one in tort. In Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd, the New South Wales Court of Appeal held that the Western Australian contribution legislation applied irrespective of whether the claim for contribution was classified as tortious or quasi-contractual, because Western Australia was the place of the tort as well as the place with which the obligation to contribute had its closest connection.129 In obiter, they expressed the view that a statutory obligation to make contribution should be characterised as quasi-contractual.130 128

Insurers’ rights of subrogation 18.41  Where an insurer indemnifies an insured person for injury or damage that person has suffered, the policy of insurance often provides that the insurer is then subrogated to any claims that the insured person might have against the tortfeasor. Although, if the claim against the tortfeasor has multi-state elements, that claim would itself be governed by the law of the place of the tort. English and Canadian courts have consistently treated the right of subrogation as contractual and governed by the proper law of the insurance contract.131

Conversion 18.42  At common law, an interest in goods is established by bringing a claim in tort alleging an unlawful interference or detention of goods. Usually the action is for conversion. In civilian countries, however, entitlement to goods is established simply by asserting title. So, consistently with the practice of the common law courts of only classifying the foreign law, actions in common law countries for conversion of goods in a civilian country have been classified as questions of property and determined by the law of the place where the property was situate.132 Still, there is no reason why the question should not be regarded as one of tort if the foreign country is one in which entitlement to goods is established by other means. In Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5),133 the House of Lords treated a claim for conversion of aircraft removed by Iraq from Kuwait in the Gulf War as one in tort, and as a consequence governed by the rule in Phillips v Eyre. Therefore, to the extent that the rule made reference to the law of the place of the tort, the claim would, in normal circumstances, have been governed by the law of Iraq. However, the Iraqi law that vested title to the aircraft in the Iraqi Government violated Security Council Resolutions, 128. Baldry v Jackson [1977] 1 NSWLR 494 (criticised in Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd (2015) 89 NSWLR 104; [2015] NSWCA 73 at [18]). 129. (2015) 89 NSWLR 104; [2015] NSWCA 73. 130. At [18]. See also Jausnik v Nominal Defendant (No 5) (2016) 316 FLR 359; [2016] ACTSC 306 at [108]. 131. Drews v Insurance Corp of British Columbia (1998) 55 BCLR (3d) 281 at [28]; Wawanesa Mutual Insurance Co v Lindblom (2001) 200 DLR (4th) 123 at 128; Kingsway General Insurance Co v Canada Life Insurance Co (2001) 149 OAC 303; Guardian of Matt v Barber (2002) 216 DLR (4th) 574 at 582; West Tankers Inc v Ras Riunione Adriatica Di Sicurta SpA [2005] EWHC 454 (Comm). 132. Cammell v Sewell (1860) 5 H & N 728; 157 ER 1371; Goetschius v Brightman 156 NE 660 (1927). 133. [2002] 2 AC 883.

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and therefore offended English public policy. For that reason, the law of the place of the tort was not applied in full. Nevertheless, the claim in conversion was classified as tortious.134

Concurrence of liability 18.43  Where one party has a claim in tort, it is not uncommon that they will also have available to them an effectively identical claim under a statute, or sometimes in contract. Similarly, the defendant may have available to it a cross-claim in another area of law, or a defence under a statute. This is likely to occur in the context of injuries sustained in the course of employment. The increasing mobility of the workforce has led to an increase in the number of multi-state workplace accidents coming before the Australian courts. In such cases, plaintiffs usually have available alternative claims in contract and in tort, and are generally free to frame their claims and defences however they see fit.135 By choice of claim or defence, the parties have some ability to determine the governing law, including to avoid aspects of foreign law that are less favourable to them. 18.44  In Busst v Lotsirb Nominees Pty Ltd,136 discussed on this point in Chapter 17,137 the plaintiff was injured in the course of her employment, while working in New South Wales. She commenced proceedings in the District Court of Queensland, claiming in contract and in tort. New South Wales law was the governing law of the tort, and New South Wales legislation would have limited the quantum of damages recoverable. The Queensland Court of Appeal held that the legislation did not affect her claim in contract. However, the liability of insurers to indemnify is not to be determined by the plaintiff ’s choice of claim as against the defendant.138 18.45  Similar issues can arise in contracts for the provision of services. In Insight Vacations Pty Ltd v Young,139 the plaintiff claimed damages for breach of the term implied by the Trade Practices Act 1974 (Cth) into contracts for the provision of consumer services, that those services would be rendered with due care and skill.140 The same claim could have been framed as a common law negligence claim, in which case Slovakian law would have been the law of the cause, or as a common law contract claim, in which case the parties’ express choice of New South Wales law would have been applied.

134. See 8.67–8.68. See also Glencore International AG v Metro Trading Inc [2001] 1 Lloyd’s Rep 284 at 298. 135. Coupland v Arabian Gulf Petroleum Co [1983] 1 WLR 1136; Base Metal Trading Ltd v Shamurin [2005] 1 WLR 1157. 136. [2003] 1 Qd R 477; [2002] QCA 296. 137. See 17.44. 138. Foster v Skilled Communication Services Pty Ltd [2003] QCA 363; Francis v Emijay Pty Ltd [2006] 2 Qd R 5; [2006] QCA 062. 139. (2011) 243 CLR 149; [2011] HCA 16. 140. Trade Practices Act 1974 (Cth) s 74(1), which has been replaced by s 60 of the Australian Consumer Law 2010.

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18.46  In cases in which employees are injured in the course of their employment, it is quite possible that the laws of different legal systems will apply to their entitlement to workers’ compensation and to related common law claims in contract and in tort.141

Contractual and statutory defences to claims in tort 18.47  On occasion, the defendant in a multi-state tort case might claim to be exempt from liability in tort, on the basis that the parties agreed by contract to grant the defendant that exemption. The exemption clause is regarded as an effective defence in some countries, though not in others. Therefore, the question arises whether the effect of the exemption clause is to be regarded as a question of tort or contract. The weight of authority favours the issue being classified as contractual and determined by the proper law of the contract.142 However, in Sayers v International Drilling NV143 Lord Denning MR, in dissent, preferred to classify the issue as tortious, as the claim had been brought in tort.144 Further, in the Scottish case of Brodin v A/R Seljan,145 Lord Kissen decided that an exemption clause had to be valid by the law of the cause selected by the choice of law rule for delicts if it were to be available as a defence. While there is some logic in this approach, the preferred method in choice of law is to classify the issue in dispute. So, even if the claim is brought in tort, the parties are more likely to join issue on the question of the contractual defence. Where this occurs, this would tend to suggest a contractual classification.

141. Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230; Yarham v Transport Accident Commission [2017] NSWCA 301; (2017) 83 MVR 19. 142. Canadian Pacific Railway Co v Parent [1917] AC 195; Walpole v Canadian Northern Railways Co [1923] AC 113 at 118; Zivnostenska Banka National Corp v Frankman [1950] AC 57; Sayers v International Drilling Co NV [1971] 3 All ER 163. 143. [1971] 3 All ER 163. 144. At 166. 145. 1973 SLT 198.

489

Chapter 19 Equitable Claims and Trusts Introduction 19.1  In Australian private international law, the law of the cause for equitable claims, defences and remedies is not always differentiated from related non-equitable claims, although the law of the cause for trusts is dealt with separately. Where the choice of law issue for an equitable claim is directly addressed, there is a considerable body of authority, mainly from New South Wales, that the law of the forum per se applies to determine the equities between the parties, with some important exceptions. One of the most important of these is in the area of trusts, where a choice of law analysis is required, and where the courts may well be required to apply foreign law. This chapter first considers jurisdiction, then choice of law for equitable claims, and then choice of law for trusts.

Jurisdiction Jurisdiction in equity 19.2  The Court of Chancery exercised jurisdiction on different bases from the common law courts; the court had jurisdiction if the defendant was resident or domiciled in England, if the cause of action arose in England, or if the subject matter of the dispute was in England.1 The mere presence of the defendant in the jurisdiction at the time of service of the initiating process, which was the basis of jurisdiction at common law, was insufficient. Therefore, in equity there would be a more substantial connection between the defendant, or the subject matter of the dispute, and the forum, and this would justify the application of the law of the forum.2 These rules have been superseded by the jurisdictional rules applicable at common law, and the legislation which has extended the scope of those rules.3 As a result, while equities are often still governed by the law of the forum, this is now likely to arise in cases where jurisdiction is established at common law and the connection with the forum might be much less substantial. 1. 2.

3.

RW White, ‘Equitable Obligations in Private International Law: The Choice of Law’ (1986) 11 Sydney Law Review 92 at 96. Eg, see the comments of Leong JA in Murakami Takako (Executrix of Estate of Takashi Murakami Suroso, decd) v Wiryadi Louise Maria [2008] SGCA 44 at [13]–[22], [27]. This is analogous to the situation in the family jurisdiction, where, historically, the only basis of the jurisdiction was the husband’s domicile (the wife lacking capacity at common law to maintain an independent domicile); application of the law of the forum might then be justified on the basis that the law of the forum was necessarily the law of the domicile. See Chapter 2.

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19.3  The rules of the Australian superior courts make provision for service out of the jurisdiction in claims involving some trusts,4 and applications for injunctive relief.5 There is no specific provision for other equitable claims and remedies. These fall to be determined according to analogous or related grounds of jurisdiction.6 The normal rules of declining jurisdiction are applicable in cases involving equitable claims.7 19.4  If the court has in personam jurisdiction over the trustees, then it has jurisdiction in respect of the administration of a trust and the assets of the trust,8 irrespective of whether the assets are within the jurisdiction or not.9

Choice of Law — Equitable Claims 19.5  The majority of the Australian cases in which the point has been addressed take the view that, with some important exceptions, the law of the cause for equitable claims, other than trusts, is that of the forum per se.10 The Australian position taken in these cases typically begins the analysis of multi-state equitable claims from its traditional understanding of equitable jurisdiction, and the priority it gives to that jurisdiction and its forum-centrism over other jurisdictions. It can be contrasted to the approach taken in the cases in other common law jurisdictions, especially England and Singapore, which begin with the multistate quality of cross-border equitable claims and subject them to a choice of law analysis, usually by reference to the relationship of the relevant equitable claim to another area of obligations in which there is an established choice of law rule, such as contract or tort.11 19.6 In National Commercial Bank v Wimborne,12 Holland J famously stated that: 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 or 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 4. 5. 6. 7. 8.

9. 10.

11.

12.

See 2.86–2.87. See 2.92. Twin Benefits Ltd v Barker [2017] EWHC 1412 (Ch) at [111], [114]. See Chapter 4. In the Estate of Webb (decd); Webb v Rogers (1992) 57 SASR 193 at 195–6, 200; Re Estate of Constantinou (decd) [2013] 2 Qd R 219; [2012] QSC 332 at [13]; Ballard v Attorney-General (Vic) (2010) 30 VR 413; [2010] VSC 525 at [21]. Hiralal v Hiralal (2013) 10 ASTLR 300; [2013] NSWSC 984 at [170]. 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 796–7; Paramasivam v Flynn (1998) 90 FCR 489 at 504; B Chen, ‘Historical Foundations of Choice of Law in Fiduciary Obligations’ (2014) 10(2) Journal of Private International Law 171. Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [1995] 3 All ER 747 at 758; Rickshaw Investments Ltd v Nicolai Baron von Uexkull [2007] 1 SLR 377; [2006] SGCA 39 at [81]; Murakami Takako (Executrix of Estate of Takashi Murakami Suroso) v Wiryadi Louise Maria [2008] SGCA 44 at [28]; OJSC Oil Co Yugraneft (in liq) v Abramovich [2008] EWHC 2613 (Comm) at [223]; Excalibur Ventures LLC v Texas Keystone Inc [2013] EWHC 2767 (Comm) at [1141]–[1144]; TM Yeo, Choice of Law for Equitable Doctrines, Oxford University Press, Oxford, 2004. See also Lifestyle Investment Group v Coral Investments Securities Ltd [2016] NZHC 2262 at [43]. (1978) 5 BPR 11,958 at 11,982.

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19.7

the particular 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 and the equitable remedies provided by that law will be applied to him.

This proposition has been repeatedly affirmed, including by the New South Wales Court of Appeal and the Full Court of the Federal Court of Australia,13 although most of these cases have noted that it is not absolute.14 For example, in Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd,15 McHugh JA stated that ‘even if this statement is generally correct, it needs qualification’. In several of these cases, the law of the forum was justified on other grounds. In some, there was insufficient evidence of the foreign law, and the application of forum law was justified on the basis of the presumption of identity.16 In United States Surgical Corporation v Hospital Products International Pty Ltd,17 McLelland J held that it was not necessary to decide whether the foreign law or the law of the forum should be applied because there was no material difference between them. 19.7  While there are no decisions of the High Court of Australia on point, the 14th edition of Dicey, Morris & Collins suggested that the High Court in Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (‘Spycatcher’)18 assumed that English law was applicable to determine the claims for breach of confidence, implicitly establishing that the law of the forum should not be applied as such.19 Dicey suggested that this was so because it was the law of the place with which the obligation of confidence, and the rights associated with its breach, was most closely connected.20

13.

14.

15. 16. 17.

18. 19.

20.

United States Surgical Corporation v Hospital Products International Pty Ltd [1982] 2 NSWLR 766 at 796–7; Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 at 151; Paramasivam v Flynn (1998) 90 FCR 489 at 503; OZ-US Film Productions Pty Ltd (in liq) v Heath [2000] NSWSC 967 at [21]; Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7 at [131]; Nicholls v Michael Wilson & Partners Ltd (2010) 243 FLR 177; [2010] NSWCA 222 at [340] (reversed on other grounds: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48); Piatek v Piatek (2010) 245 FLR 137; [2010] QSC 412 at [117]; Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483 at [504]–[518]. In United States Surgical Corporation v Hospital Products International Pty Ltd, McLelland J noted that ‘In some circumstances a court of equity will apply equitable principles as administered by itself to found relief against a defendant subject to its jurisdiction in relation to a transaction governed by foreign law, even if similar principles form no part of that foreign law’: [1982] 2 NSWLR 766 at 796–7 (emphasis added). (1987) 10 NSWLR 86 at 192 (McHugh JA). Eg Piatek v Piatek (2010) 245 FLR 137; [2010] QSC 412 at [122]. [1982] 2 NSWLR 766 at 799. In Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd, Kirby P held that the law of the forum was applicable, but also noted that there was no material difference between the foreign law and the lex fori: (1987) 10 NSWLR 86 at 151. (1988) 165 CLR 30. See 8.53–8.54. L Collins (gen ed), Dicey, Morris & Collins on the Conflict of Laws, 14th ed, Sweet & Maxwell, London, 2006 at [34-034]. This passage does not appear in the current edition: L Collins (gen ed), Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012, at [34-083] et seq. L Collins (gen ed), Dicey, Morris & Collins on the Conflict of Laws, 14th ed, Sweet & Maxwell, London, 2006, at [34-034]. In Innovia Films Ltd v Frito-Lay North America, Inc, Arnold J applied this analysis: [2012] EWHC 790 (Pat) at [108]. A similar analysis is set out in M Davies et al, Nygh’s Conflict of Laws in Australia, 9th ed, Lexis Nexis, Sydney, 2014, at [21.12].

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19.8  It has been suggested that the law of the forum would apply to fraudulent and unconscionable conduct by a resident within the forum.21 The weight of Australian authority is also clear that at least some equitable claims, particularly those arising from fiduciary relationships, may be governed by a law other than the law of the forum.22 In particular, if the source of a fiduciary relationship is an effective agreement governed by foreign law, such a claim should be determined by the proper law of that contract;23 similarly, an equitable claim related to a tort should be determined by the governing law of the tort.24 19.9 In Piatek v Piatek,25 Douglas J noted: [It] is by no means a given … that, in claims for equitable relief, even those that concern property situated in Australia, if appropriate evidence of foreign law is available, that Australian law will necessarily be applied.

In Murakami v Wiryadi,26 Spigelman CJ suggested that the categories of exception to the application of the law of the forum to determine equitable claims were not closed and that the ‘principles underlying the identified exceptions could be applied in other specific contexts’. 19.10  Even if the foreign law is not applied in full, in Paramasivam v Flynn,27 the Full Court of the Federal Court suggested in obiter 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.

Similarly, in Murakami v Wiryadi,28 Spigelman CJ stated that ‘In determining a claim for an equitable interest under Australian law, this court will have regard to, and generally enforce, a relevant foreign element in the dispute’. 21. 22.

23.

24.

25. 26. 27. 28.

United States Surgical Corporation v Hospital Products International Pty Ltd [1982] 2 NSWLR 766 at 798. This was suggested in obiter in Paramasivam v Flynn (1998) 90 FCR 489 at 503 and applied in Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7 at [132]–[139]; Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69 at [73]–[74]. It was also one view proposed by McLelland J in United States Surgical Corporation v Hospital Products International Pty Ltd [1982] 2 NSWLR 766 at 796–7, although his Honour did not find it necessary to determine the point because it made no difference to the result, whether the foreign law or forum law applied. Paramasivam v Flynn (1998) 90 FCR 489 at 503; Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7 at [141], [142], [144]; Nicholls v Michael Wilson & Partners Ltd (2010) 243 FLR 177; [2010] NSWCA 222 at [340]–[346]; Fleming v Marshall (2011) 279 ALR 737; [2011] NSWCA 86 at [78]. Cf Oz-US Film Production Pty Ltd v Heath [2000] NSWSC 967 at [22]. In Nicholls v Michael Wilson & Partners, the New South Wales Court of Appeal rejected an argument that the equitable claims (breach of fiduciary duty) should be characterised as tortious: (2010) 243 FLR 177; [2010] NSWCA 222 at [339]. In this case, the law of the forum applied in any event because the proper law of the contracts was NSW: at [346]. Piatek v Piatek (2010) 245 FLR 137; [2010] QSC 412 at [122]. See also Hiralal v Hiralal (2013) 10 ASTLR 300; [2013] NSWSC 984. Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7 at [139]. Paramasivam v Flynn (1998) 90 FCR 489 at 503. Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7 at [148].

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Equitable Claims and Trusts

19.13

19.11  The application of forum law per se is in general regarded as inappropriate in private international law and it is rarely applied as such.29 The quote from Holland J’s judgment in National Commercial Bank v Wimborne above shows that the application of the law of the forum was justified on the basis that the court has jurisdiction over the defendant. In that case, the application of the law of the forum could be justified on the basis that the jurisdictional rules ensured a substantial connection between the defendant and the forum.30 The principles of jurisdictional competence have since been considerably expanded such that they do not ensure a real and substantial connection between the defendant and the forum, and therefore the application of the law of the forum per se is no longer justified on that basis.31 Chen has observed that the approach taken to choice of law for equitable claims is hard to reconcile with the High Court’s policy of rejecting reference to the law of the forum in tort claims.32 To that could be added that the court’s rejection of forumcentred rules for tort was motivated by the need for the choice of law rule to conform to the imperatives of the Constitution, and its full faith and credit clause (s 118) in particular.33 Although it is unlikely that the High Court would address the question, there remains an issue of the extent to which choice of law for equitable claims (and questions other than tort) should conform to the constitutional imperatives, and give greater prominence to the relevance of the place where an equitable wrong occurred.34 19.12  In the recent Australian cases, the court has not simply applied the law of the forum. In Placer (PNG) Pty Ltd v Dyno Nobel Asia Pacific Ltd,35 the issue arose as to what the governing law was for a claim by one insurer against another insurer for equitable contribution. One of the insurance policies was governed by Norwegian law, and the other by the law of Papua New Guinea. Hunter J of the Supreme Court of New South Wales held that there was ‘no entrenched rule … which compels the application of the lex fori in a case such as this’,36 and said it would be ‘bizarre’ to apply the Australian Insurance Contracts Act 1984 in the circumstances.37 19.13  The predominance of the law of the forum as the law of the cause for equitable claims also has some explicit exceptions. The law of trusts is governed by a completely different regime that has a closer resemblance to choice of law in contract.38 In common law countries, directors’ duties to their companies are fiduciary obligations. The Foreign Corporations (Application of Laws) Act 1989 (Cth) has questions of directors’ management governed by the law of the place of incorporation,39 and it would appear that the choice 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39.

The main exceptions are in the case of statutory claims (see in general Chapter 12) and in some areas of family law (see in general Chapters 14 and 16). Rickshaw Investments Ltd v Nicolai Baron von Uexkull [2007] 1 SLR 377; [2006] SGCA 39 at [81]. RW White, ‘Equitable Obligations in Private International Law: The Choice of Law’ (1986) 11 Sydney Law Review 92; TM Yeo, Choice of Law for Equitable Doctrines, Oxford University Press, Oxford, 2004 at [1.25]. Chen, above n 10, p 192. See 11.16–11.18. See 11.18. [1999] NSWSC 1292. [1999] NSWSC 1292 at [486]. [1999] NSWSC 1292 at [487]. See 19.18–19.28. Foreign Corporations (Application of Laws) Act 1989 (Cth) s 7(3)(g); see 23.22.

495

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of law rule under the general law traditionally also emphasised the place of incorporation as the law of the cause. However, in Paramasivam v Flynn,40 after stating the general rule that the law of the forum governed questions involving fiduciary duties, Miles, Lehane and Weinberg JJ noted that ‘particular considerations may arise where what is in question is the duty owed to a foreign corporation by its directors or officers’.41 However, they held that ‘such matters do not arise here and it is unnecessary for us to form any view about them’.42 It would seem, then, that in Australia there remains a preference for the law of the forum to govern questions of directors’ duties, but that in some cases it might be displaced by the law of the place of incorporation.43 However, given the uniformity of company law across Australia, choice of law questions concerning internal company management will almost always involve foreign corporations and be governed by the Application of Laws Act.44

Equitable defences 19.14  There is even less authority on the issue of the governing law for equitable defences. In Murakami v Wiryadi, Spigelman CJ suggested in obiter that ‘[t]here will, of course, be circumstances in which equity will not enforce a foreign contract’.45 In Paradise Enterprises Ltd v Kakavas,46 it was common ground that the contractual claim and the defence of unconscionability were governed by the proper law of the contract, which was the law of the Bahamas,47 although Davies J noted that there was no conflict between the substantive principles of the governing law, the Bahamas, and the forum, which was Victoria.48

Equitable remedies 19.15 In National Commercial Bank v Wimborne,49 Holland J stated that both ‘equitable rights and equitable remedies’ were governed by the law of the forum. One of the possibilities identified by McLelland J in United States Surgical Corporation v  Hospital Products International Pty Ltd50 was that, even if foreign law should be applied to determine ‘the existence and scope of the fiduciary duties’, the law of the forum might determine the appropriate remedy for any breach of those duties. In private international law, remedies used to be regarded as procedural and on that basis governed by the law of the forum rather than by the otherwise applicable law of the cause. The implications of the narrowing of the definition of procedure in John Pfeiffer Pty Ltd v Rogerson51 for equitable 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51.

(1988) 90 FCR 489. At 503. At 503. See 23.22. See 23.22. Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7 at [148]. [2010] VSC 25. [2010] VSC 25 at [3]. [2010] VSC 25 at [5]. (1978) 5 BPR 11,958 at 11,982. [1982] 2 NSWLR 766 at 798. See also L Collins (gen ed), Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012, at [34-084]. (2000) 203 CLR 503; [2000] HCA 36 at [99].

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Equitable Claims and Trusts

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remedies is not entirely clear, but it should have the effect of further limiting the role of the law of the forum. Garnett suggests that orders for specific performance, rescission, injunctions to restrain breaches of tort and contract, and constructive trusts should be regarded as substantive, and on that basis governed by the law of the cause rather than the law of the forum.53 52

19.16  Australian courts have the ability54 to enjoin a defendant who is amenable to the court’s jurisdiction from acting or refraining from acting outside the jurisdiction.55 The law of the forum is applied to determine whether an anti-suit injunction should be granted to prevent the commencement or continuation of foreign proceedings, and this is probably a matter of applying the procedural law. However, the courts engage in a substantive choice of law analysis where the injunction is sought in aid of an exclusive choice of court agreement.56 19.17  A right to trace property should be regarded as a final order and substantive, and as such is governed by the law of the cause.57 For example, if money is paid under a mistake of fact, the governing law for the tracing order would be the law of the place of payment.58

Choice of Law — Trusts 19.18  The source of the choice of law rule for a question of trusts differs, depending on whether the conflict is between the law of an Australian jurisdiction and the law of a foreign place, or whether it is between the laws of two or more Australian jurisdictions. Choice of law for trusts that involve a foreign place is determined under the Hague Trusts Convention,59 which has force in Australia by virtue of the Trusts (Hague Convention) Act 1991 (Cth).60 The Convention applies to trusts that are ‘created voluntarily and evidenced 52. 53.

54. 55.

56.

57. 58. 59.

60.

See 7.38. R Garnett, Substance and Procedure in Private International Law, Oxford University Press, Oxford, 2012. at [10.20]–[10.21]. In relation to constructive trusts, see Schumacher v Summergrove Estates Ltd [2014] 3 NZLR 599 at [30]–[32]; Burt v Yiannakis [2015] NZHC 1174 at [68]–[72]; J Harris, ‘Constructive Trusts and Private International Law: Determining the Applicable Law’ (2012) 18 Trusts and Trustees 965 at 967. Cf Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7; Nicholls v Michael Wilson & Partners Ltd (2010) 243 FLR 177 at [342]; [2010] NSWCA 177; Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69 at [74]. See 7.44. National Australia Bank Ltd v Dessau [1988] VR 521 at 522; Australian Competition and Consumer Commission (ACCC) v Chen (2003) 132 FCR 309; [2003] FCA 897 at [40]; Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 at [16]. Sim argues that a choice of law analysis is appropriate wherever the injunction is sought in aid of legal rights: C Sim, ‘Choice of Law and Anti-Suit Injunctions: Relocating Comity’ (2013) 62 International and Comparative Law Quarterly 703. Cf OJSC Oil Co Yugraneft (in liq) v Abramovich [2008] EWHC 2613 (Comm) at [347]–[371]. Garnett, above n 53 at [10.22]; Chase Manhattan Bank NA v Israel-British Bank (London) Ltd [1981] Ch 105; Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7 at [140]. Convention on the Law Applicable to Trusts and on their Recognition, 1 July 1985, The Hague, No 30, (entered into force 1 January 1992) (‘Trusts Convention’); see D Hayton, ‘Reflections on The Hague Trusts Convention after 30 Years’ (2016) 12 Journal of Private International Law 1. Trusts (Hague Convention) Act 1991 (Cth) s 6.

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in writing’. In any other case, including conflicts between the laws of different Australian states or territories,62 the Trusts Convention is inapplicable. The residual rules derived from case law developed in the equitable jurisdiction determine the law of the cause for trusts that are outside the scope of the Convention. Multi-state trust cases must necessarily involve other common law countries that have an equitable jurisdiction that recognises trust relationships in relation to property. If the question does not involve a common law country, the very existence of a trust will be in question.63 61

Hague Trusts Convention 19.19  The Trusts Convention is universal in its application in international cases; it applies irrespective of whether the country of the place to which the trust is connected is a contracting state to the Convention or not.64 As noted, it applies only to trusts created voluntarily and evidenced in writing,65 and to both inter vivos and testamentary trusts.66 It will apply to some resulting and some constructive trusts.67 19.20  Article 6 of the Convention provides that ‘A trust shall be governed by the law chosen by the settlor’. The choice of law: … must be express or be 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.68

There is no limit as such to the laws that can be chosen, although a choice of law is ineffective to avoid the application of internationally mandatory rules of the forum and some other legal systems.69 The Convention does not require any objective connection between the trust and the place chosen by the settlor.70 Factors that may be relevant in determining whether there was an implied choice of law include the places where the trustee and beneficiaries reside, are domiciled, or incorporated;71 the testator’s domicile at the time of making the will, and, by parity of reasoning, the domicile of the settlor at the time the trust is created for trusts inter vivos;72 the situs of the assets of the trust,73 the currency in which distributions are expressed to be made,74 and negotiations and a history 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74.

Trusts Convention Art 3. Trusts (Hague Convention) Act 1991 (Cth) s 7. Eg S and S Ltd v XYZ Ltd [2016] NZHC 26 at [14]; Kent v Paterson-Brown [2018] EWHC 2008 (Ch) at [153]–[154], [177]; cf Ivanishvili v Credit Suisse AG [2018] NZHC 1755 at [141]–[146]. This is subject to whether the relevant contracting state has made a reservation pursuant to Art 21, which Australia has not done. Contracting states can ‘declare that the provisions of the Convention will be extended to trusts declared by judicial decisions’: Art 20. Australia has not made such a declaration. Trusts Convention Art 2. JD Heydon and MJ Leeming, Jacobs’ Law of Trusts in Australia, 8th ed, LexisNexis, 2016, p 618. Trusts Convention Art 6; eg Teo v Guan (2015) 296 FLR 172; [2015] FamCAFC 94 at [7]–[8], [116]. Trusts Convention Arts 15, 16 and 18. See further 19.24. Gomez v Gomez-Monche Vives [2008] EWCA Civ 1065 at [49]. Hutchinson v Bank of Scotland plc [2012] QSC 28. Re Estate of Constantinou (decd) [2013] 2 Qd R 219; [2012] QSC 332 at [25]. Hutchinson v Bank of Scotland plc [2012] QSC 28; Re Estate of Constantinou (decd) [2013] 2 Qd R 219; [2012] QSC 332. Hutchinson v Bank of Scotland plc [2012] QSC 28; Saliba v Falzon [1998] NSWSC 302.

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19.24

of other agreements between the parties that expressly chose the law of a single place as the proper law of the other agreements.75 There is some authority to the effect that the settlor’s choice of the proper law of the trust might be ‘disregarded’ if it is intended to evade some important principle of the law of the forum.76 19.21  If there is no express choice, and no choice can be implied, the trust is governed by the law with which it is most closely connected.77 Article 7 indicates the factors which are to be taken into account in determining the law with which the trust has its closest connection, namely, the place of administration of the trust designated by the settlor, the situs of the assets of the trust, the place of residence or business of the trustee, and the objects of the trust and the places where they are to be fulfilled. In the case of inter vivos trusts, these factors should be assessed as at the time of creation of the trust; in the case of testamentary trusts, they should be assessed as at the date of the making of the will.78 It is likely that the implied choice of law will correspond to the law with the closest connection to the trust.79 It is probably irrelevant that the law of the place that is most closely connected to a putative trust does not recognise the existence of trusts. In that case, the law most closely connected to the putative trust would probably apply and a trust would simply not be recognised.80 If the law identified by these rules does not provide for trusts, the Convention is therefore inapplicable.81 However, the fact that the law of the place where some of the assets are situated does not recognise trusts does not thereby make the Convention inapplicable.82 19.22  Renvoi is expressly excluded under the Trusts Convention.83 Article 9 recognises that a severable aspect of the trust might be governed by different laws.84 19.23  The applicable law of the trust determines the validity of the trust, its construction and effects, the administration of the trust,85 and whether the governing law can be replaced by another law.86 More particularly, Art 8 lists 10 different matters which are determined by the applicable law of the trust. 19.24  The Convention ‘preserves the mandatory rules of the law designated by the conflicts rules of the forum for matters other than trusts’,87 and refers, non-exhaustively, to six particular areas, namely: (a) the protection of minors and incapable parties; (b) the personal and proprietary effects of marriage; 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87.

Berezovsky v Abramovich [2010] EWHC 647 (Comm) at [178]–[181]. Gomez v Gomez-Monche Vives [2008] EWCA Civ 1065 at [58]. Trusts Convention Art 7. Re Estate of Constantinou (decd) [2013] 2 Qd R 219; [2012] QSC 332 at [44]. Re Estate of Constantinou (decd) [2013] 2 Qd R 219; [2012] QSC 332 at [26]. Berezovsky v Abramovich [2010] EWHC 647 (Comm) at [121]. Trusts Convention Art 5. Akers v Samba Financial Group [2017] AC 424. Trusts Convention Art 17; see 8.13–8.35. Trusts Convention Art 9. Trusts Convention Art 8. Trusts Convention Art 10. AE von Overbeck, Explanatory Report on the 1985 Hague Trusts Convention, Hague Convention on Private International Law, 1985, at [136].

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(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; (f) the protection, in other respects, of third parties acting in good faith.88

In addition, the Convention preserves the application of internationally mandatory rules of the forum,89 and states that ‘in exceptional circumstances’, where another country has ‘a sufficiently close connection with a case’, effect may also be given to the internationally mandatory rules of that other country.90 The Convention does not apply when its application would be ‘manifestly incompatible with public policy’.91 19.25 In Akers v Samba Financial Group, Lord Sumption noted: The purpose of the Convention is to procure the recognition of the main incidents of a trust by contracting parties whose law would not otherwise recognise them. It is therefore of limited significance in jurisdictions … which do recognise trusts.92

Trusts outside the scope of the Hague Trusts Convention 19.26  The Trusts Convention only applies to trusts created voluntarily and evidenced in writing. It does not apply to trusts which are created by operation of law, including some resulting trusts, constructive trusts, and implied trusts. The Convention also does not apply in relation to voluntary trusts so far as they are affected by conflicts arising solely between the laws of the Australian states or territories.93 19.27  There is a paucity of authority on the law of the cause for resulting, constructive and implied trusts. In several cases, there was insufficient evidence of the foreign law and the court applied the law of the forum on the basis of the presumption of similarity.94 A resulting trust over land should be governed by the law of the place where the land is situated.95 In Murakami v Wiryadi, Spigelman CJ said that he could ‘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’,96 including a constructive trust over immovable

88. 89. 90. 91. 92. 93. 94. 95. 96.

Trusts Convention Art 15. Trusts Convention Art 16. Trusts Convention Art 16. A state may by reservation declare that the reference to foreign internationally mandatory rules is excluded. Australia has not made such a reservation. Trusts Convention Art 18. [2017] AC 424 at [91]. Trusts (Hague Convention) Act 1991 (Cth) s 7(1). Eg Damberg v Damberg (2001) 52 NSWLR 492 (resulting trust); Hiralal v Hiralal (2013) 10 ASTLR 300; [2013] NSWSC 984 at [192] (constructive trust). Whung v Whung (2011) 258 FLR 452 [2011] FamCA 137 at [198]. Cf Lightning v Lightning Electrical Contractors [1998] NPC 71 (EWCA). Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7 at [141]. Harris takes a similar view, arguing that constructive trusts should be governed by the law applicable to the underlying obligation which allegedly gives rise to the trust: J Harris, ‘Constructive Trusts and Private International Law: Determining the Applicable Law’ (2012) 18 Trusts and Trustees 965.

500

19.28

Equitable Claims and Trusts



property located in the forum. In Schumacher v Summergrove Estates Ltd, the New Zealand Court of Appeal (Ellen France, Wild and Miller JJ) held that: 97

The orthodox view of constructive trusts in private international law is that what must be classified is not the trust but the obligation or interest or event that will lead a court to declare or impose it.98

The claim in Schumacher involved immovable property in Ireland, and was restitutionary in character where the enrichment was in the value of the Irish property. As a result, Irish law as the law of the place where the property was situate governed the constructive trust.99 It has been suggested that in some circumstances it is appropriate for the accountability of a trustee under a constructive trust to be determined according to the law of the place of administration of the express trust.100 19.28  In relation to conflicts between the laws of Australian states and territories, the principles applied to determine the governing law for trusts created voluntarily are very similar to those under the Trusts Convention. In In the Estate of Webb (decd); Webb v Rogers, Prior J noted that the Trusts Convention was inapplicable because the conflict was between the laws of a state and a territory, but said: … this Court should hesitate long before adopting a principle of law for this case that would be patently out of step with the principles adopted in the Convention and by the [Trusts (Hague Convention)] Act.101

The governing law is that subjectively chosen by the settlor or, in the absence of a choice, the law of the place objectively determined to have the closest and most real connection to the trust.102 The factors which are relevant under Art 7 of the Trusts Convention, in ascertaining the legal system with the closest and most connection to the trust, are also treated as relevant to determining the proper law of the trust in this context, namely the place of administration of the trust, the situs of the assets of the trust, the place of residence or business of the trustees, the objects of the trust and the places where they are to be fulfilled.103 The court may also consider the place where the will was executed, and the place where distributions are made.104 The proper law of the trust also governs matters of administration of the trust.105 If the trust relates to immovable property, the law of the place where the property is situate will be significant in identifying the objectively determined proper law of the trust.106

97. 98. 99. 100. 101. 102.

103. 104. 105. 106.

[2014] 3 NZLR 599. At [37], citing Macmillan Inc v Bishopsgate Investment Trust Plc (No 3) [1996] 1 WLR 387 at 391–2. At [38]–[40]; see also Burt v Yiannakis [2015] NZHC 1174 at [70]–[71]. JD Heydon and MJ Leeming, Jacobs’ Law of Trusts in Australia, 8th ed, LexisNexis, 2016, p 626. (1992) 57 SASR 193 at 204. Augustus v Permanent Trustee Co (Canberra) Ltd (1971) 124 CLR 245 at 252; Ballard v Attorney-General (Vic) (2010) 30 VR 413; [2010] VSC 525 at [22]. See also Sim Hok Khun @ Hadi Gunawan v Henry Budi Harsono @ Sim Hok Kiong [2012] SGHC 256 at [24]. In the Estate of Webb (decd); Webb v Rogers (1992) 57 SASR 193 at 203–4. Ballard v Attorney-General (Vic) (2010) 30 VR 413; [2010] VSC 525 at [22]. In the Estate of Webb (decd); Webb v Rogers (1992) 57 SASR 193 at 204. Sim Hok Khun @ Hadi Gunawan v Henry Budi Harsono @ Sim Hok Kiong [2012] SGHC 256 at [24].

501

PART 6 Choice of Law for Property

Chapter 20 The Location and Classification of Property The method of classifying property Immovables and movables 20.1  The fundamental distinction that must be drawn in all issues involving property in a multi-state case is the distinction between immovables and movables.1 This is the case whether the question is one of title to property, the validity or effect of an attempt to transfer property, or the right to inherit property. The choice of law rules applicable to these cases differ, depending in part on whether the property involved is classified as immovable or movable. For example, a question of succession to immovable property is almost always governed by the law of the place where the property is situate (lex situs), whereas the law of the cause in a question of succession to movable property is more likely (but not always) to be the law of the place where the deceased had been domiciled (lex domicilii). 20.2  For choice of law purposes, the distinction between immovables and movables is applied instead of the usual distinction made at common law between real and personal property. The two distinctions do not coincide — for example, a lease is regarded as immovable property even though at common law it is usually classified as personalty.2 Just why for choice of law purposes the immovable–movable distinction was adopted remains obscure. In Re Hoyles,3 the distinction was suggested to be more appropriate for international cases, as it was more readily understood ‘under different systems of jurisprudence’. This was probably a reference to the civilian law applicable throughout most of Europe, where the distinction is made. However, that led Barwick CJ and Windeyer J in Haque v Haque (No 2)4 1.

2. 3. 4.

The distinction has been the target of criticism. In particular, Spigelman CJ stated that ‘[t]he traditionally rigid distinction between moveable and immoveable property has no sound basis in policy … It does not appear to me to reflect contemporary conditions, especially the ease of cross-border investment’: Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7 at [124]. This case was a jurisdictional challenge, and Spigelman CJ had earlier noted that it is not appropriate finally to resolve choice of law questions at the jurisdictional stage: at [64]–[66]. Taking that comment into account, and bearing in mind that it is inconsistent with binding authority of the High Court, the distinction should still be regarded as good law in Australia, while also recognising that it may come under further challenge, especially where there is an effective agreement and there is no mandatory rule of the situs which would require a different result. Freke v Lord Carbery (1873) LR 16 Eq 461. [1911] 1 Ch 179 at 185. (1965) 114 CLR 98 at 109, 142.

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to doubt the relevance of the distinction in cases of a conflict of laws originating between different common law jurisdictions that both used the realty–personalty distinction. There is sense in that approach, but it has not prevailed. The distinction between immovables and movables is firmly established and, especially in Australia, has led to sharp differences being made between the choice of law regimes for property of the different kinds. 20.3  It is equally well settled that the question as to how property is to be classified is to be determined in accordance with the law of the place where the property is situate.5 Further, the question as to whether certain rights are even to be considered proprietary is one to be determined by the law of the place where those rights are deemed, by law, to be located. Thus, in 1834 in Re Rucker; Ex parte Rucker,6 the English Court of Review classified a slave in Antigua in accordance with the law of Antigua as both property and immovable  — a  classification that would now undoubtedly not be made as manifestly contrary to domestic public policy and public international law. And, to give another example, the ‘right’ to hold armorial bearings is classified in England as an incorporeal hereditament — but a ‘dignity’ and not proprietary — where in Scotland it is classified as ‘heritage’ and, so, is there considered to be a species of property.7 This principle of classifying according to the law of the place where the property is situate provokes the question — where is the property (or where are the rights) deemed to be located or situate? That is a question which can only be answered by the law of the forum.8 Consequently, in choice of law questions involving property, it is only possible to classify the subject matter of the case properly by isolating each item of property concerned, and for each item to undertake the following steps: • use the law of the forum to determine the place where the property is situate (the situs); and • having determined that, use the law of the place where the property is situate to classify the property as immovable or movable. Windeyer J took this approach in Haque v Haque (No 2).9 The subject matter of the case may involve, for example, a question of the formal validity of a transfer of property between living persons or of the essential validity of a disposition of property by will. But it is not until the court answers the second question that the subject matter is properly classified as also involving immovable or movable property, and that the process of subject matter classification is complete. 20.4  The remainder of this chapter outlines how these two questions are addressed by the law of Australia. In dealing with the first, this chapter describes how Australian law assigns a location or situs to various kinds of property. In dealing with the second, it is assumed that the law deems the property to be located in a state or territory of Australia. Therefore, the law of that state or territory is used to classify the property as immovable or 5. 6. 7. 8. 9.

Haque v Haque (No 2) (1965) 114 CLR 98 at 139; Re Cutcliffe [1940] Ch 565 at 571; Macdonald v Macdonald 1932 SC (HL) 79 at 85. (1834) 3 LJ Bcy 104. C Agnew, ‘The Conflict of Heraldic Laws’ [1988] Juridical Review 61 at 62–3. Rossano v Manufacturers Life Insurance Co [1963] 2 QB 352 at 379. (1965) 114 CLR 98 at 134.

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20.9

movable. It must be emphasised that, if an Australian court finds property to be located in a place outside Australia, it is for the law of that place to classify the property as immovable or movable.

The location of property 20.5  There is no difficulty ascribing a location to tangible property. It has a location in space and time, and the location it is assigned by law normally follows. Intangibles are more problematic. Rights that the law recognises as having the character of property but that have no physical existence include some of the most economically valuable rights known to modern commerce: debts, negotiable instruments and shares. For these, the law employs fictions, and deems them to be located in one place or another by reference to some aspect of the juridical quality of the rights. The law relating to the location of intangible property is therefore the more complex. Further, because a particular intangible might for one purpose — for example, succession — be deemed to be located in, say, Ruritania, there is nothing to stop it from being regarded for a different purpose — for example, taxation — as being located in Hentzau. But the following rules can be treated as of general application unless expressly modified by statute.

Tangible property Land 20.6  Naturally, land and most interests in land are situate in the place where the land lies.10

Leases 20.7  The general rule for land applies to any leasehold interest in the land. It is deemed to be situate in the place in which the land in which the lease is held, lies.11

Chattels 20.8  Similarly, chattels are taken to be situate in the place where they happen to be at the decisive time.12 The ‘decisive time’ will depend on the issue before the court. If it is a question of the validity of a transfer, it will be the time the transfer was supposed to have been made. If it is a question of succession, it will be the time of death.

Shipping 20.9  There is English authority that suggests that a ship, like any other chattel, should be taken to be situate in the place where it happens to be.13 This is evidently an unsatisfactory rule, especially if at the legally relevant time the ship was in international waters. In any case, a ship’s location can be arbitrary and can lead to uncertainty. For this reason, the better rule 10. 11. 12. 13.

Haque v Haque (No 2) (1965) 114 CLR 98 at 107, 136; Commonwealth v Yarmirr (2001) 200 CLR 1 at 99. Attorney-General v Bouwens (1838) 4 M & W 171 at 191; 150 ER 1390 at 1398; In the Estate of Varley [2007] SASC 420 at [8]. Haque v Haque (No 2) (1965) 114 CLR 98 at 136; Cammell v Sewell (1860) 5 H & N 728; 157 ER 1371. The Jupiter (No 3) [1927] P 122 at 144; [1927] P 250.

507

20.9

Private International Law in Australia

seems to be that a ship is situate in the place of its registration.14 Australian courts have been inclined towards the place of registration as the situs of a ship, but this remains unsettled. In two cases, the Full Court of the Federal Court has suggested, without positively deciding, that it would be more appropriate to apply the law of the place of a ship’s registration rather than the lex situs. In Tisand Pty Ltd v Owners of Ship MV ‘Cape Moreton’ (Ex ‘Freya’), the Full Court of the Federal Court stated that there were ‘powerful policy reasons’ for applying the law of the place where a ship is registered ‘in relation to questions of title, property and assignment’ subject to forum statutes and public policy, rather than the law of the place of the situs. In that case, it was not necessary to decide the point because no evidence had been adduced of the foreign law.15 This passage was referred to in Ship ‘Gem of Safaga’ v Euroceanica (UK) Ltd, in which a differently constituted Full Court of the Federal Court also held that this point was not necessary to determine.16

Debts Simple contract debts 20.10  The general rule applicable to debts is that they are deemed to be situate in the place where the debtor resides.17 The traditional rationale for the rule is that the place where the debtor resides is the place where proceedings are to be brought if litigation is required to recover payment.18 As a consequence, doubts have been raised as to whether a debt can be ascribed a location if it is not yet payable, and the point remains unsettled.19 It appears that the contract creating the relationship of debtor and creditor can effectively select the location of the debt, but probably only if the debtor is resident in that place.20 The traditional position was that an agreement to repay the debt in some place other than that where the debtor resides did not affect the location of the debt. In Cambridge Credit Corp Ltd v Lissenden,21 Clarke J held that, where it was agreed — by debtors resident in a number of different countries — to repay a debt in one nominated place, the debt was deemed to be situate in that place where it was agreed to be repaid or, if the contract did not make 14. 15. 16.

17.

18. 19. 20. 21.

Hooper v  Gumm (1867) LR 2 Ch  App 282 at 290; Compania Naviera Vascongado v  Steamship ‘Cristina’ [1938] AC 485 at 509. (2005) 143 FCR 43; [2005] FCAFC 68 at [146]–[148]. (2010) 182 FCR 27; [2010] FCAFC 14 at [97]–[98]. Cf Thor Shipping A/S v  Ship Al Duhail (2008) 173 FCR 524; [2008] FCA 1842; Dornoch Ltd v Westminster International BV (The WD Fairway) [2009] 2 Lloyd’s Rep 191 at 223. Attorney-General v  Bouwens (1838) 4 McW 171 at 191; 150 ER 1390 at 1398; Commissioner of Stamps v Hope [1891] AC 476 at 481–2; Haque v Haque (No 2) (1965) 114 CLR 98 at 137; Kwok Chi Leung Karl v Commissioner of Estate Duty [1988] 1 WLR 1035; Société Eram Shipping Co Ltd v Compagnie Internationale de Navigation [2003] 3 WLR 21 at 24, 45, 46, 54; Kuwait Oil Tanker Co SAK v Qabazard [2003] 3 All ER 501 at 504, 507; AssetInsure Pty Ltd v New Cap Reinsurance Corp Ltd (in liq) (2006) 225 CLR 331; [2006] HCA 13 at [58]. Cf Raiffeisen Zentralbank Osterreich AG v Five Star General Trading LLC [2001] 3 All ER 257 at 270. Re Helbert Wagg & Co Ltd [1956] 1 Ch 323 at 339–40; cf Kwok Chi Leung Karl v Commissioner of Estate Duty [1988] 1 WLR 1035. AssetInsure Pty Ltd v New Cap Reinsurance Corp Ltd (in liq) (2004) 61 NSWLR 451; [2004] NSWCA 225 at [129]. (1987) 8 NSWLR 411.

508

The Location and Classification of Property



20.14

such provision, in the place where it would be payable in the normal course of business. It had already been settled that, where the debtor was resident in more than one place and the contract provided for the debt to be repaid in one of them, the debt was deemed to be located in that place.22 If, in this case, the contract does not specify where the repayment is to be made, the debt is situate where it would be paid in the normal course of business.23

Specialties 20.11  A debt created by deed (a ‘specialty’) is, by reason of the deed itself, taken to have some tangible existence. It is therefore regarded as being located where the deed itself is to be found.24 In most cases, however, all of the parties to the deed will have a copy of the document and, not infrequently, the separate copies will be found in different places. Some other factor will then have to help determine the location of the debt. 20.12 In Toronto General Trusts Corp v The King,25 the Privy Council solved the problem of multiple copies of a deed by identifying the ‘seat’ of the debt relationship after examining all of the circumstances of the case. One copy of a deed of mortgage was kept by the Registrar of Titles in Alberta, and another by the mortgagee in Ontario. The debt was held to be located in Alberta, because a much stronger connection with that province was established by all other factors; for example, the residence of the mortgagors, the place of payment, the location of the land, the regulating statute, and so on. It does not appear that any one factor alone proved decisive in determining the location of the debt, and it would seem all contacts that the debt has with one place or another need to be taken into account.26

Judgment debts 20.13 In Attorney-General v  Bouwens27 it was held that, for purposes of probate jurisdiction, a judgment debt was deemed to be located where the judgment was made. It could be questioned whether the rule should be adopted for choice of law purposes. There seems no reason why a judgment debt cannot be treated as a simple contract debt, and so be deemed to be situate where the judgment debtor is resident.

Mortgage debts 20.14  A mortgage debt is not only a right to the repayment of money, but also an interest in land. This raises the possibility that a mortgage debt could be regarded as being situate where the land lies. So much was decided in an appeal from Queensland in Walsh v The Queen,28 where Lord Watson rejected the argument that the location of a mortgage debt 22. 23. 24. 25. 26. 27. 28.

Jabbour v Custodian of Absentee’s Property of State of Israel [1954] 1 All ER 145 at 152; AssetInsure Pty Ltd v New Cap Reinsurance Corp Ltd (in liq) (2006) 225 CLR 331; [2006] HCA 13 at [58]. Jabbour v Custodian of Absentee’s Property of State of Israel [1954] 1 All ER 145 at 152; AssetInsure Pty Ltd v New Cap Reinsurance Corp Ltd (in liq) (2006) 225 CLR 331; [2006] HCA 13 at [58]. Commissioner of Stamps v Hope [1891] AC 476 at 482; Royal Trust Co v Attorney-General (Alberta) [1930] AC 144 at 150. [1919] AC 679. See, likewise, Ocean Marine Insurance Co Ltd v CSR Ltd [2012] NSWSC 1229 at [65]–[71]. (1838) 4 M & W 171 at 191; 150 ER 1390 at 1398. [1894] AC 144.

509

20.14

Private International Law in Australia

should be the place where the personal obligation to repay is located. He concluded29 that the mortgage was situate in Queensland because it was an interest in land in the colony.30 However, in the earlier New South Wales case of Commissioner of Stamps v Hope,31 the Privy Council ruled that a mortgage of land in New South Wales was not located in that colony. The deed creating the mortgage debt was held in Victoria, and therefore the mortgage debt was situate in Victoria.32 There is no conclusive authority settling which of the approaches taken in Walsh and Hope is to be considered law in Australia, although in Haque v Haque (No 2) Windeyer J thought that a mortgage debt was situate where the land was.33 That conclusion probably puts too much weight on the security aspect of mortgage debt, because the thing of value is probably the personal right to repayment. The interest in land is really designed to ensure that payment can be made.34 It is also harder to reconcile with the High Court’s obiter dicta in Haque (No 2) that a mortgage debt is movable, for if it is taken to be situate where the land lies, a mortgage debt would undoubtedly be immovable. The point requires closer analysis in the courts. While for now it should be regarded as technically unsettled, the position of the High Court in Haque (No 2) strongly suggests that the location of mortgage debts would be treated like other debts. 20.15  If a mortgage debt were treated as any other debt, it would be regarded as situate where the mortgagor was resident (if created by simple contract) or where the deed was to be found (if created by deed). In most cases, mortgages are created by deed. However, under the Torrens system of registration of title to land operating in all states and territories, a simple contract creating a mortgage debt is deemed to take effect as a deed once it is registered with the appropriate state or territory registrar of titles. So, if a mortgage debt created by simple contract is registered in the forum state, the forum courts are required by the forum’s land title legislation to treat the mortgage debt as a specialty and, perhaps, located where the mortgage document will be found. On the other hand, in another state the courts do not fall directly under the command of the forum’s land title legislation. Therefore, in the other state the mortgage is treated as a simple contract debt and, perhaps, located where the mortgagor is resident.35

Other intangible property Shares 20.16  Shares in a corporation are deemed to be situate where, according to the law of the place where the company was incorporated, the shares can be dealt with effectively.36 The law of the place of incorporation must therefore be consulted. If the company is 29. 30. 31. 32. 33. 34. 35. 36.

At 149. Mount Albert Borough Council v Australasian Temperance & General Mutual Life Assurance Society [1938] AC 224 at 238. [1891] AC 476. See also Royal Trust Co v Provincial Secretary — Treasurer of New Brunswick [1925] 2 DLR 49. Haque v Haque (No 2) (1965) 114 CLR 98 at 138–9. Haque v Haque (No 2) (1965) 114 CLR 98 at 128. In the Will of Currie (1899) 25 VLR 224. R v Williams [1942] AC 541. Cf M Ooi, Shares and Other Securities in the Conflict of Laws, Oxford University Press, Oxford, 2003, p 34.

510



The Location and Classification of Property

20.18

incorporated in Australia, the Corporations Act 2001 (Cth) makes provision for a transfer of shares to be registered on the register of members before it can be regarded as an effective transfer at law.37 This rule is typical of companies legislation, and means the shares are located in the place where the register of members is kept,38 which is usually where the company is incorporated.39 If the law provides for some other means of proving title to and transferring shares, this also needs to be taken into account. In cases where shares can be transferred on more than one register, they are deemed to be located where, in the normal course of affairs, the present shareholder would deal with them.40 In The Matter of Redcliffe Resources Ltd,41 Barker J noted that ‘the lex situs remains the subject of some controversy … as between where the register on which the shares exist is kept; the place where the shares are situated where they could most effectively be dealt with having regard to business practice; and where the shareholders in question would be likely to choose a market and place of transfer when desiring to deal with the shares’.42 The register in Redcliffe Resources was in Australia but a copy was held in Papua New Guinea. Trading took place through the Australian Securities Exchange, and 96 per cent of shareholders were Australian. Barker J concluded that, despite the different tests for the possible location of the shares, in Redcliffe Resources they all pointed to Australia as the situs.

Partnership interests 20.17  An interest in a partnership is located in the place where the partnership conducts business.43

Beneficial interests under a trust 20.18  Where rights held by a beneficiary under a trust are located depends on the quality of the rights held. If the rights amount to an interest in the trust property then they must be regarded as situate in whatever place the particular items of trust property are deemed to be situate,44 otherwise the beneficiary’s rights can only be classified as personal rights to ensure that the trustee acts in conformity with the terms of the trust. These rights are best enforced where the trustee can be sued, and are therefore deemed to be located in the trustee’s place of residence.45

37. 38. 39.

40. 41. 42. 43. 44. 45.

Corporations Act 2001 (Cth) s 1072F(1). This is a replaceable rule, and is not a requirement for all companies: see Corporations Act 2001 (Cth) s 135. Attorney-General v Higgins (1857) 2 H & N 339; 157 ER 339; Brassard v Smith [1925] AC 371; Erie Beach Co Ltd v Attorney-General for Ontario [1930] AC 161. Australian Public Trustees Ltd (in its capacity as trustee and/or responsible entity of the Government Property Trust No 5) v Australian Public Trustees Ltd (in its capacity as trustee of the Government Property Trust No 3) (2012) 81 ACSR 236; [2012] VSC 364 at [33]. See, for example, Re Clark [1904] 1 Ch 294; Standard Chartered Bank Ltd v Inland Revenue Commissioner [1978] 3 All ER 644 at 648. [2016] FCA 404. At [7], citing Gummow J in Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 at 602. Beaver v Master in Equity of the Supreme Court of Victoria [1895] AC 251; Commissioner for Stamp Duties v Salting [1907] AC 449. See Re Berchtold [1923] 1 Ch 192; Philipson-Stow v Inland Revenue Commissioners [1961] AC 727 at 762. Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694.

511

20.19

Private International Law in Australia

Beneficial interests under a deceased estate 20.19  There are obvious similarities between the rights of a beneficiary of a deceased estate and those of a beneficiary under a trust. While the estate is in the process of administration, a beneficiary has no direct interest in the property comprising the estate. The beneficiary’s rights are to the due administration of the estate, and are enforceable against the personal representatives. They are therefore deemed to be located where the personal representatives are resident.46

Intellectual property 20.20  Intellectual property rights are regarded as situate in the place where those interests were created and where they may effectively be transferred.47

The classification of property 20.21  If, according to the rules discussed above,48 an item of property is taken to be situate in a state or territory of Australia, then it is for the law of that state or territory to classify the property as immovable or movable. On this question the rules are still to be found exclusively in the common law, and therefore the law is uniform throughout Australia. The High Court also discussed the distinction between immovable and movable property at some length in Haque v Haque (No 2),49 and in doing so clarified at least the basic principles relevant to the distinction.50 20.22 In Haque v Haque (No 1),51 the High Court ruled that the wife and children of the testator’s polygamous marriage were entitled to share in his movable estate in accordance with the law of the place of his domicile — India — which recognised Islamic law as his applicable personal law.52 The question that arose in Haque v Haque (No 2)53 was whether the deceased’s assets situate in the forum — Western Australia — were movable or immovable property. Two classes of assets (both choses in action) were of particular concern: the rights of the deceased as an unpaid vendor in land he had sold to the balance of purchase money (that is, a vendor’s lien); and the interest of the deceased in two partnerships which held land, one of which dissolved on his death and the other of which continued notwithstanding his death. 20.23  The court’s analysis of the classification of these two forms of property in Haque (No 2) relied strongly on the classification of a third class of chose in action — mortgage debts. Ultimately, a majority in the High Court concluded that all three classes of choses in 46. 47. 48. 49. 50. 51. 52. 53.

Attorney-General v Lord Sudeley [1896] 1 QB 354; Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694. J M Carruthers, The Transfer of Property in the Conflict of Laws, Oxford University Press, Oxford, 2005, p 29. See 20.5–20.20. (1965) 114 CLR 98. See also Carruthers, above n 47, Ch 1. (1962) 108 CLR 230. See 1.31. (1965) 114 CLR 98.

512

The Location and Classification of Property



20.27

action were movable property and therefore to be distributed in accordance with the law of the place of the deceased’s domicile. This was Indian (and specifically, Islamic) law. However, more important in the development of principle is the close identification of immovable property with land and interests in land. But the extent to which the lesser interests in land were to be considered immovable was a source of disagreement. In regarding, for example, mortgage debts as movable, Kitto, Menzies, Windeyer and Owen JJ were prepared to qualify the close association between land and immovables.54 Kitto and Menzies JJ admitted, however, that, considered alone and without the debt, the security should be regarded as immovable and for some purposes would be classified as such.55 Barwick CJ dissented, and held that ‘every interest in land, whatever the reason for its creation or the purpose its creation or retention is designed to serve, is an immovable’.56 Though this conclusion would provide the certainty needed in the law of property, in light of the result in Haque (No 2) it is too extreme a position.

Tangible property Land 20.24  It follows from Haque (No 2)57 that most interests in land are classified in Australia as immovable. Indeed, if the land was found to be situate in some foreign place where the law classified it as movable, it is possible that an Australian court would not recognise the classification and would still regard the land as immovable.58

Leases 20.25  As an interest in land, a lease is classified as immovable property. This classification applies even though a lease is, under ordinary rules of common law, regarded as personal property.59

Chattels 20.26  In general, any tangible property not attached to land will be classified as movable, as will any interest in such property.60

Shipping 20.27  As is the case for other chattels, a ship is regarded as movable property.61

54. 55. 56. 57. 58. 59. 60. 61.

At 129, 133, 146, 152. At 128, 133. At 119. See 20.21–20.23. See Macdonald v Macdonald 1932 SC (HL) 79 at 84, 88. Freke v Lord Carbery (1873) LR 16 Eq 461; Duncan v Lawson (1889) 41 Ch D 394. Haque v Haque (No 2) (1965) 114 CLR 98 at 107; Personal Property Securities Act 2009 (Cth) s 235(1), but see s 235(2). The Blonde and Other Ships [1921] P 155; The Pfalz [1921] Argus LR 39 at 47; see also Marine Insurance Act 1909 (Cth) ss 3, 9(2)(a).

513

20.28

Private International Law in Australia

Debts Simple contract debts, specialties and judgment debts 20.28  The problem for debts and other choses in action is that, not having any physical existence, there is nothing inherent in the property to suggest its classification as immovable or movable. A simple contract debt is taken to be located where the debtor resides and a specialty debt where the deed is to be found. As both places are capable of being changed, the debt is properly classified as movable.62 This does not help in the classification of judgment debts which, for some purposes at least, are situate in the place where the judgment was made, and therefore could be regarded as permanently fixed in that place and immovable. It would, however, be inconvenient to classify judgment debts differently to other debts, and in the absence of authority it would be best to treat them as movable.

Mortgage debts 20.29  The majority of the High Court in Haque (No 2) thought that mortgage debts were to be classified as movable property. In reaching this conclusion, the court adopted the classification reached earlier in Victoria and New Zealand.63 This classification may not always be appropriate. Menzies J, for example, thought that in some cases it might be necessary to separate the debt and the security and to classify them differently.64 There would be no doubt that in such a case the security would be regarded as immovable.65 But in most cases, a mortgage debt would, in Australia, be classified as movable. This is not the case in England or Canada.66 Presumably, if a mortgage debt were found by an Australian court to be situate in, say, England, and the English law was properly proved to the court, the English classification of mortgage debts as immovable would be applied.

Other intangible property Shares 20.30  While there is no Australian decision that indicates how shares located in an Australian state or territory are to be classified, there is little doubt they would be regarded as movable.67 In the New Zealand case of Re Knowles (dec’d),68 Doogue J held that, unless the strict conditions for piercing the corporate veil were satisfied, shares should be classified as movable property regardless of the nature of the assets owned by the company in which the shares were held. Therefore, even if the company’s only asset was land, the shares would be disposed of as movable property in all but the most exceptional cases.

62. 63. 64. 65. 66. 67. 68.

Commissioner of Stamps v Hope [1891] AC 476 at 481–2; Haque v Haque (No 2) (1965) 114 CLR 98 at 107. Re Ralston [1906] VLR 689 at 694; Re Young [1942] VLR 4; Re Williams [1945] VLR 213; Re O’Neill [1922] NZLR 468. Haque v Haque (No 2) (1965) 114 CLR 98 at 133. See also Haque v Haque (No 2) (1965) 114 CLR 98 at 128 per Kitto J. Re Hoyles [1911] 1 Ch 179; Hogg v Provincial Tax Commissioner [1941] 4 DLR 501; Re Ritchie [1942] 3 DLR 330. Re Terry (dec’d) [1951] NZLR 30. [1995] 2 NZLR 377.

514



The Location and Classification of Property

20.34

Intellectual property 20.31  Intellectual property interests are regarded as movables in Australian law.69

Partnership interests 20.32  The conclusion reached in Re Knowles (dec’d)70 about the classification of shares was helped by the judgment of the majority in Haque (No 2):71 that an interest in a partnership was to be classified as movable, even if the assets held by the partnership included land. But, perhaps care needs to be taken in considering how far this classification extends. Barwick CJ qualified his support for this classification, by reserving any opinion on the classification of property described in a will or other instrument as ‘an interest in the land of the partnership’.72 Windeyer J only dissented on the classification of the interest in the partnership that dissolved on the testator’s death. Here, he classified each asset held by the partnership separately, concluding that the partnership’s interests in land were to be regarded as immovable. However, it would seem from the decision of the majority in Haque (No 2) that the interest in the partnership alone should be classified, and even when it dissolves, the court should not look through the partnership at the nature of the assets it held.

Beneficial interests under a trust 30.33  Whether rights held by a beneficiary under a trust are to be classified as immovable or movable will depend on whether those rights are to be treated as interests in the trust property itself, or are merely personal rights exercisable against the trustee. In the former case, the classification of the beneficiary’s rights will follow the classification of the trust property.73 Otherwise it would appear that the rights should be classified as movable, as their location could vary with the trustee’s place of residence.

Beneficial interests under a deceased estate 20.34  As the location of the rights of a beneficiary of a deceased estate can vary with the residence of the personal representative administering the estate, these would seem to be classified as movable property.

69.

70. 71. 72. 73.

Re Usines de Melle’s Patent (1954) 91 CLR 42 at 48. For detailed discussion, see J J Fawcett and P Torremans, Intellectual Property and Private International Law, 2nd ed, Oxford University Press, Oxford, 2011, especially at pp 697–705. See 20.30. Haque v Haque (No 2) (1965) 114 CLR 98 at 122, 130, 134, 152. At 122. See, for example, Australian Mutual Provident Society v  Gregory (1908) 5 CLR 615; Re Berchtold [1923] 1 Ch 192; Philipson-Stow v Inland Revenue Commissioners [1961] AC 727.

515

Chapter 21 Transfer of Property between Living and Corporate Persons Introduction 21.1  In this chapter, the choice of law rules applicable to the transfer (or ‘conveyance’ or ‘assignment’) of property and interests in property are considered. This is limited to the transfer of property between living persons or corporations, whether by sale or gift. It can also involve the transfer and simultaneous creation of an interest in property by mortgage, charge or chattel security. Transfers of property made to a person on the individual owner’s death — either by will or the operation of intestacy rules — are considered in Chapter 22. 21.2  Although a transfer of property may take place because there is provision in a contract for that to occur, a distinction must be made between multi-state questions concerning the contract and those concerning the transfer. As discussed in Chapter 17, the proper law of the contract usually governs questions concerning the contract. However, the proper law is not necessarily the law of the cause for questions concerning the transfer of the property, even in some cases where the contract creates the obligation by which the transfer of property must be effected. This distinction is especially important for transfers of immovable property. This is not to exclude the possibility that some questions involving the transfer of property could be governed by the proper law of a related contract.1 21.3  There are different principles for the transfer of immovable property and movable property. Movables, tangible property and intangibles like debts and other choses in action all receive significantly different treatment in private international law. Therefore, before the classification of the subject matter in dispute can occur, the property or interest in property itself must be classified. So, when in a multi-state case the transfer of property is in issue, each relevant item of property must be identified and then, for each item of property, the following steps should be followed: • use the law of the forum to determine the place where the property is situate (the situs); and • having determined the situs, use the law of the place where the property is situate to classify the property as immovable or movable.2 1. 2.

See 21.21. See 20.3.

517

21.3

Private International Law in Australia

How (when an Australian state or territory is the forum) the law of Australia determines the place where the property is situate was discussed in Chapter  20.3 In particular, if the property is found to be located in an Australian state or territory, its classification in Australia as immovable or movable was discussed in Chapter  20.4 If the property is considered situate in a place outside Australia, its classification as immovable or movable is made in accordance with the law of that place. Once that classification is made, the subject matter can be properly classified. However, as will be seen, further classification might have to take place before a choice of law rule can be identified. In 2009, the Commonwealth Parliament enacted the Personal Property Securities Act 2009 (Cth), which creates a single national online register of personal property securities and includes new choice of law rules applying to security interests in personal property.

Transfer of immovable property Formal validity 21.4  Questions concerning the transfer of immovable property or interests in immovable property are inevitably determined by the law of the place where the property is situate. This means that, if a transfer complies with the formalities required by the law of the place where the property is situate, it will at least be formally valid. So, in Adams v Clutterbuck5 a lease of land in Scotland included a shooting right and an obligation to preserve a good breeding stock of grouse on the land. The lease was not under seal, which rendered it invalid under the law of England but not under the law of Scotland. An action against the lessee for breach of the obligation to preserve the breeding stock would only succeed if the lease were valid. In England, Cave J held that the law of Scotland, as the place where the property was situate, applied to the lease. It was therefore valid, and the claim for damages succeeded. The converse position was considered in Johnson v Billyard,6 where the landlord sued in New South Wales for rent owing under a lease of land in Fiji. However, the lease was invalid in Fiji as it was not registered. Although the proper law of the lease was the law of New South Wales, the rent could not be recovered as the obligation to pay it only arose under a lease which was invalid in the place where the property was situate.7

Essential validity 21.5  Questions of the essential validity of a transfer include whether the immovable can be alienated, whether it is subject to any rule against perpetuities, and whether an estate of one kind or another can be created by the transfer. All are determined in accordance with the law of the place where the property is situate.8 3. 4. 5. 6. 7. 8.

See 20.5–20.20. See 20.21–20.34. (1883) 10 QBD 403. (1890) 11 LR (NSW) 319. See also Anning v Anning (1907) 4 CLR 1049; Gregg v Perpetual Trustee Co (1918) 18 SR (NSW) 252. Nelson v Bridport (1846) 8 Beav 547; 50 ER 215; Hewit’s Trustees v Lawson (1891) 18 R 793; Row v Jugg [1911] 1 Ch 179.

518

Transfer of Property between Living and Corporate Persons



21.7

Capacity 21.6  A related issue is the question of capacity: that is, whether the transferor has the capacity to transfer or the transferee the capacity to receive the immovable property. It is certainly necessary that capacity exist in the place where the property is situate. Therefore, the transfer can only be valid if the transferor is recognised as having capacity under the law of the place where the property is situate.9 However, the question is whether this is also sufficient. In the Scottish case of Ogilvy v  Ogilvy’s Trustees,10 Lord Moncreiff held that a transfer of immovable property was not valid where it was made by a person who, though having capacity in Scotland where the property was situate, did not have capacity in the place where that person was domiciled. This seems difficult to reconcile with the New South Wales case of Gregg v Perpetual Trustee Co.11 There, a woman did not have capacity to transfer land under the law of New South Wales, where she was domiciled. However, under the law of Queensland, where the land was located, she did have capacity to transfer it. Harvey J held that the transfer had been effective. Gregg therefore suggests that, in Australia, capacity under the law of the place where the immovable is situate is sufficient to effect a valid transfer.

The contract requiring the transfer 21.7  In all cases, the transfer (or assignment or conveyance) of immovable property must be distinguished from any contract by which that obligation to transfer arises. As the cases above indicate,12 the question of the validity of a transfer of immovable property can be severed from the question of the validity of a contract. Accordingly, even if a lease is valid under the proper law of the lease, there may be no obligation to pay the rent if the lease is invalid in the place where the property is situate.13 It is probable that, if valid in the place where the property is situate, the transfer will remain effective even if the contract providing for the transfer is invalid under its proper law.14 However, so far as the enforceability of personal obligations between the parties to the contract is concerned, this will depend entirely on the validity of the contract under its proper law. If the contract is invalid under its proper law, neither party will be able to sue under the contract even if the transfer of immovable property is valid in the place where the property is situate.15 Conversely, there may be cases where mere personal obligations can be enforced because, under its proper law, the contract is valid even though the transfer of immovable property is invalid in the place where it is situate. So, in Re Courtney; Ex parte Pollard16 there was a contract providing for the creation of a secured interest in land in Scotland by the deposit of mortgage deeds with the lender. This was ineffective for the creation of a secured interest under Scots law. However, Lord Cottenham LC held that under English law, so far as the borrower was 9. 10. 11. 12. 13. 14. 15. 16.

Bank of Africa v Cohen [1909] 2 Ch 129 at 135, 143; Hays v Hays [2015] EWHC 3825 (Ch) at [43]. 1927 SLT 83. (1918) 18 SR (NSW) 252. See 21.4. Johnson v Billyard (1890) 11 NSWLR 219. Gregg v Perpetual Trustee Co (1918) 18 SR (NSW) 252. Cf Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd (1933) 48 CLR 565. (1840) Mont & Ch 239.

519

21.7

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concerned, the contract made the lender a secured creditor. The obligation was therefore a personal one arising under the contract. It was not a proprietary right arising under the law of the place where the property was situate, although this conclusion is hard to reconcile with the fact that the secured creditor is treated as having proprietary rights that ensure the creditor has priority over unsecured creditors. It should be noted that the decision in Courtney proceeds on the assumption that a mortgage debt is immovable property. This is generally not the case in Australia.17

Transfer of movable property 21.8  In dealing with the validity of the transfer of movable property, a distinction should be made between tangible property (chattels), debts and intangible property other than debts.

Tangible property 21.9  The validity of a transfer of a chattel is generally to be determined in accordance with the law of the place where the chattel is situate at the time of the transfer. This is a strong rule of general application, and even applies if the transfer of property is between two contracting parties.18

Effective transfer of title 21.10  In Cammell v Sewell,19 timber was sold by Russian merchants, the Onega Wood Company, to an English partnership, Simpson & Whaplate. Onega shipped the timber to England on a Prussian ship. Simpson & Whaplate insured the cargo with Cammell & Co, English underwriters. The ship was wrecked off the coast of Norway, and the timber was then sold by the master of the ship by auction in Norway to Hans Clausen. Cammell tried to recover the timber by proceedings in Norway but failed. Accordingly, Clausen as the owner of the timber in Norway sold it to Sewell, Hadley & Sewell, merchants in London. Cammell then sued Sewell in England to recover damages for the loss of the timber. The action would fail if Clausen were considered in England to have had good title to the timber, which could then be transferred to Sewell. However, under the internal law of England, Simpson & Whaplate’s title to the timber was not discharged by the sale of the timber by auction in Norway. As the Norwegian proceedings established, the internal law of Norway considered that Clausen had gained good title to the timber. The Court of Exchequer Chamber held that Sewell had received a valid title to the timber. It had been transferred by Clausen, who had good title in the place where the timber was situate at the time the transfer was made — Norway. As Crompton J approved: ‘If personal property is disposed of in a manner binding according to the law of the country where it is that disposition is binding everywhere.’20 The rule is said to give effect to natural expectations as to what law should govern the transfer

17. 18. 19. 20.

See 20.29. Glencore International AG v Metro Trading International Inc [2001] 1 Lloyd’s Rep 284 at 292–6. (1860) 5 H & N 728; 157 ER 1371. At 638, 1378.

520



Transfer of Property between Living and Corporate Persons

21.12

of property, to help the conduct of business, and to reflect the realities of practical control over movable property.21 21.11  Naturally, the same rule requires that a transfer of chattels that is ineffective by the law of the place where the chattels were situate at the time the transfer was made is ineffective in the forum.22 The strength of this general rule is exemplified in Winkworth v Christie, Manson and Woods Ltd23 where artworks were stolen from Mr Winkworth’s house in London and sold by the thief to Dr D’Annone, an Italian who was unaware that they were stolen goods. D’Annone then sent the artworks to England for auction by Christie’s, and so Mr Winkworth brought proceedings in England against D’Annone and Christie’s for both damages and the recovery of the artworks. Even though under the internal law of England the transfer to D’Annone would have been regarded as ineffective to give him title, Mr Winkworth’s action failed. The artworks were in Italy at the time the transfer to D’Annone took place, and under the internal law of Italy, a valid transfer of title had been effected. Slade J recognised that the application of the choice of law rule was not affected by the fact that the artworks had been stolen from England and illegally removed to Italy. The critical consideration was the location of the chattels at the time the relevant transfer occurred, not how they came to be in that location in the first place.

Security interests in chattels 21.12  In the case of security interests over chattels, Commonwealth legislation provides that the validity or ‘perfection’ of such an interest 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.24 Such an approach is consistent with the common law preference for the lex situs. Where, however, the 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 validity or perfection of the security interest will be governed by the law of that jurisdiction.25 In the case of goods that are ‘of a kind that are normally used in more than one jurisdiction’,26 the validity or perfection of the security interest is governed by the law of the place in which the grantor of the interest is located, including its choice of law rules.27

21. 22.

23. 24.

25. 26. 27.

Glencore International AG v Metro Trading International Inc [2001] 1 Lloyd’s Rep 284 at 294–5. Inglis v  Robertson [1898] AC 616; Hockey v  Mother o’ Gold Consolidated Mines Ltd (1903) 29 VLR 196; Macmillan Inc v  Bishopsgate Investment Trust Plc (No 3) [1996] 1 All ER 585; Glencore International AG v Metro Trading International Inc [2001] 1 Lloyd’s Rep 284 at 292–6. [1980] Ch 496; H v S [2015] NZHC 310 at [99], [104]. Personal Property Securities Act 2009 (Cth) s 238(1). The issue of perfection would include disputes relating to the priority of competing interests to a chattel. See generally S Derrington, ‘It Might Be Yours There but It’s Not Down Here: Issues Arising Under the PPSA in Cross-Border Transactions’ (2015) 26 Journal of Banking and Finance Law and Practice 97. Personal Property Securities Act 2009 (Cth) s 238(2). Gimli Auto Ltd and Eagle Ridge Pontiac Buick GMC v BDO Dunwoody Ltd (Trustee) and Canada Campers Inc (1998) 219 AR 166. Personal Property Securities Act 2009 (Cth) s 238(3).

521

21.13

Private International Law in Australia

Derivative claims 21.13  There is an analogous application of the lex situs rule in derivative claims. This is illustrated by the Ontario case of Century Credit Corp v Richard,28 in which Mr Moses sold his car in Quebec to Mr Foldes by conditional sale. Under the law of Quebec, Moses retained title until the purchase price was fully paid. Foldes took the car to Ontario, where he sold it to Hamilton Car Refinishers. This company, in turn, sold the car in Ontario to Century Credit Corporation. Moses subsequently transferred the car for value to Mr Richards, who therefore could exercise all the rights in relation to the vehicle that Moses had been able to. In Ontario, a conditional sale had to be registered if the title was to remain in the seller of the vehicle, otherwise the buyer gained title. Century Credit was unaware of Moses’ (and hence Richards’) reservation of title in Quebec. Richards brought proceedings in Ontario to recover the vehicle from Century Credit. 21.14  In Century Credit, Richards’ claim failed. Had he been able to bring proceedings against Foldes, he would have succeeded as the Ontario courts would recognise that he (as transferee from Moses) retained title in Quebec, where the transfer between Moses and Foldes took place. However, the transfers from Foldes to Hamilton and Hamilton to Century Credit occurred in Ontario and, by its internal law, would have delivered good title to Century Credit. Thus, Century Credit was recognised as having a superior title to Richards. The principle therefore seems to be that, where competing interests in a chattel arise by one transfer in Ruritania and a subsequent transfer in Hentzau, priority is recognised in accordance with the law of Hentzau. This was not the earlier trend of authority in Australia, where courts had recognised that the security interests in chattels arising under the law of Ruritania would have priority.29 However, the approach taken in Century Credit was also taken by the Full Court of the Supreme Court of Queensland in Douglas Financial Consultants Pty Ltd v Price.30 There, Beneficial Finance Corporation Limited (BFC) leased a car in New South Wales to Schaffer, who then sold it in Queensland as the alleged owner of the vehicle to Price. Price then sold the vehicle in Queensland to Douglas Financial Consultants, which was unaware that BFC was the lessor of the vehicle. It was subsequently repossessed by the police on BFC’s having made a complaint. Douglas brought proceedings against Price for damages, which would only be recoverable if the court considered that Price did not have good title to transfer to Douglas. The claim failed, the internal law of Queensland providing that the interest of a purchaser for value and without notice prevailed over a security interest that had not been registered in the state. Thomas J and Ambrose J both endorsed the Century Credit approach to derivative claims.31 The decision recognises the application of the law of the place where the chattel was situate at the time of the transfer in question. However, in these cases everything turns on the content of the internal law of the place where the property was situate. The outcome would not necessarily be the same if, under the law of that place, the derivative transfer that occurred there was not regarded as

28. (1962) 34 DLR (2d) 291. 29. Taylor v Lovegrove (1912) 18 ALR (CN) 22; AJ Smeman Car Sales v Richardson Pre-Run Cars (1969) 63 QJPR 150. 30. [1992] 1 Qd R 243. 31. At 252–3, 261–2.

522

Transfer of Property between Living and Corporate Persons



21.19

curing the seller’s defect in title or giving the buyer the normal priority of a purchaser for value and without notice. 21.15  The Personal Property Securities Act  2009 (Cth), however, now provides the answer to most choice of law questions involving security interests in chattels. This is because, first, the Act creates a national scheme for registration of security interests in respect of personal property, which eliminates the possibility of conflict between state and territory laws, as occurred in Douglas Financial Consultants; and, second, the choice of law provisions in the Act, with some limited reference to the above common law principles,32 will apply in respect of security interests arising under the laws of foreign countries.

Complications and exceptions 21.16  There are complications, and a few exceptions, to the general rule that the law of the cause for questions of the transfer of chattels is the law of the place where the chattel is situate at the time of the transfer. These are the doctrine of renvoi, goods in transit, and public policy. Renvoi 21.17  It has long been contentious as to whether the doctrine of renvoi applies in property questions, including the transfer of title to tangible property. While the matter has not been conclusively resolved, the balance of recent English authority rejects the application of the doctrine to the issue of transfer of title to chattels.33 The use of renvoi in this context is regarded as inconsistent with the need for certainty in commercial transactions, difficult to apply given that it requires evidence of foreign choice of law rules and not always a guarantee of uniformity of result.34 Goods in transit 21.18  There is some question whether it is appropriate to insist on application of the law of the place where the chattels are situate when they are in transit. In this case, the physical location of the chattels at the time a transfer is made could be completely accidental, and application of the law of that place could be completely inconsistent with the original expectations of the parties. The question has been much debated among jurists. Certainly, if the transfer is regarded as effective by the proper law of any contract under which the transfer was made, there would be no good reason to deny its validity in the forum.35 Security interests 21.19  In the case of security interests in personal property, the federal legislation makes it clear that the doctrine of renvoi has no application other than in the case of ‘goods that are normally moved between jurisdictions’ in s 238(3).36 32. 33.

34. 35. 36.

See 21.13–21.14; Re Maiden Civil (P & E) Pty Ltd [2013] NSWSC 852 at [61]–[64]. MacMillan Inc v Bishopsgate Investment Trust plc (No 3) [1995] 1 WLR 978; Islamic Republic of Iran v Berend [2007] EWHC 132; Blue Sky One Ltd v Mahan Air [2010] EWHC 631 (Comm). Cf Glencore International AG v Metro Trading International Inc [2001] 1 Lloyd’s Rep 284; The ‘WD Fairway’ [2009] 2 Lloyd’s Rep 191. Blue Sky One Ltd v Mahan Air [2010] EWHC 631 (Comm) at [183]. Winkworth v Christie, Manson and Woods Ltd [1980] Ch 496 at 501. Personal Property Securities Act 2009 (Cth) ss 238–241.

523

21.20

Private International Law in Australia

Public policy 21.20  In questions of transfers of chattels, an Australian court is not to apply the law of the place where the property is situate where to do so would be contrary to the public policy of the relevant state or territory.37 This is a specific instance of the general principle that the application of the law of another place can be excluded on public policy grounds.38

Debts 21.21  The choice of law rules applicable to the transfer of debts do not place the emphasis on the law of the place where the property is situate that it has for immovables, chattels and, as will be seen, other intangible movables. Clearly, this is largely because debts do not have a physical location and, accordingly, the law of the place where the property is situate does not have the natural claim that it does for immovables or chattels. The law does ascribe a location to debts.39 However, the law of the cause in questions concerning the transfer of debts can make reference to the law of the place where the transferor was domiciled, the law of the place where the transfer occurred (lex loci actus) or the proper law of a related contract. Indeed, as Mance LJ pointed out in Raiffeisen Zentralbank Osterreich AGC v Five Star General Trading LLC,40 there could be significant disadvantages if relying on the law of the place where the property is situate for cases involving debts. Raiffeisen centred on a policy of marine insurance — made between French insurers and the Dubai ship-owners of The Mount I, but governed by English law. The ship-owners assigned the benefit of the insurance contract to an Austrian bank. After a collision involving The Mount I and ICL Vikraman, a Taiwanese company, whose cargo was on board the ICL Vikraman, obtained provisional orders of attachment in France of any insurance that was payable. However, the Austrian bank sought declarations in England that the benefit of the insurance policy had been effectively assigned and that any proceeds of insurance were payable to it. By English choice of law principles, the place of the debt to pay the insurance was where the insurers were located — France — and by French law the assignment might not have been effective. As has been seen,41 the Court of Appeal held that the question was to be classified as contractual and not proprietary, and so was governed by the law of England. However, in obiter dicta Mance LJ (with whom Aldous LJ and Charles J agreed) set out some disadvantages of having choice of law questions relating to debts governed by the law of the place where the property was situate. In relation to tangible property, it was noted that one reason for preferring that law was that it reflected the practical reality of the control that could be exercised over the property.42 Mance LJ thought there was a degree of artificiality involved in this reasoning so far as debts were concerned. This was partly because the debtor’s residence was deemed to be the place of the debt, and proceedings were often more effectively conducted in other places, such as where the debtor’s assets were located.43 37. 38. 39. 40. 41. 42. 43.

Glencore International AG v Metro Trading International Inc [2001] 1 Lloyd’s Rep 284 at 295. See 8.57–8.69. See 20.10–20.15. [2001] 3 All ER 257. See 17.3. See 21.10. [2001] 3 All ER 257 at 270–1.

524



Transfer of Property between Living and Corporate Persons

21.24

If there was co-insurance, with the insurers located in different countries, application of the law of the place where the debt was situate could require the question of the validity of one assignment to be determined by different countries’ laws.44 His Lordship also thought that an analogy with involuntary transfers was inappropriate.45 Although the classification of the issue in Raiffeisen as contractual was directed by the terms of the European Union’s Rome Convention, it is possible that a similar approach would be taken at common law46 — and therefore in Australia. However, the principles of classification may develop, Mance LJ’s judgment underlines the difficulties of relying on the law of the place where a debt is situate as the law of the cause in questions concerning the transfer of debts.

Classification 21.22  The use of laws other than that of the place where a debt is located has led to both fragmentation and inconsistency in the cases relating to the transfer of debts, with the result that there is a significant degree of further classification of the subject matter. This has become an intricate, and perhaps unnecessary, exercise. But to clarify which choice of law rules potentially apply to the transfer of debts, it is useful to distinguish questions concerning single and multiple transfers. In the case of single transfers, it is also useful to distinguish voluntary and involuntary transfers. Then, in the case of a single voluntary transfer, questions of formal validity, essential validity and capacity are further to be distinguished.

Single voluntary transfer — formal validity 21.23  In relation to single voluntary transfers, a question of formal validity arises when the subject matter in dispute concerns the need to comply with formalities prescribed in a relevant place. Formalities include the need to make or evidence the transfer of the debt in writing, or requirements relating to witnesses and attestation. The latter issue arose in Republica de Guatemala v Nunez.47 21.24  Guatemala v Nunez concerned a transfer of money held in a bank account (a debt) by Sr Cabrera, President of Guatemala. In 1906, the money was deposited with Lazard Brothers, a bank in London. In 1919, Sr Cabrera wrote to Lazard Brothers and directed them to transfer the money in the account to his son, Nunez, who was still an infant. However, Sr Cabrera was deposed in 1920 and forced to transfer the money in the bank account to the Republic of Guatemala in 1921. Later that year, the Republic brought proceedings in England against Lazard Brothers for the money in the account. The bank resisted this claim, on the ground that Nunez had a claim on the money. It therefore interpleaded, leaving the matter to be argued between the Republic and Nunez. Under the internal law of England, the transfer to Nunez would have been effective. However, there were two reasons why under the law of Guatemala the transfer to Nunez would have been ineffective. First, there was a 44. 45. 46.

47.

At 271. At 271. R Stevens and T H D Struycken, ‘Assignment and the Rome Convention’ (2002) 118 Law Quarterly Review 15 at 20; cf A Briggs, ‘The Real Scope of European Rules for Choice of Law’ (2003) 119 Law Quarterly Review 352 at 352–3. [1927] 1 KB 669.

525

21.24

Private International Law in Australia

question of formal validity. The transfer had to be in writing and signed before a notary, duly stamped and signed by the transferee. In this case, there had not been compliance with these formalities. Second, there was a question of capacity. As a minor, Nunez did not have capacity in Guatemala to receive a voluntary transfer of property unless a tutor or court appointed representative acted on his behalf. Nunez did not have a tutor or representative. At first instance, Greer J held that the law of Guatemala applied. This was affirmed on appeal to the Court of Appeal, with the result that Nunez’s claim would fail. But the Republic also failed to establish its case, with the consequence that it also could not recover the moneys. However, what is unfortunate about Guatemala v  Nunez is that the judges in the Court of Appeal did not agree on the legal basis for the application of the law of Guatemala. That means that, for both questions of formal validity and capacity, the law of the cause is still unresolved. 21.25  In Guatemala v  Nunez, only two judges in the Court of Appeal addressed the problem of the law of the cause in questions of formal validity. Bankes LJ held that this was a question of priorities. However, this wrongly classified the issue as the Republic and Nunez were only disputing the validity of the first transfer of the money that Sr Cabrera had purported to make to Nunez.48 Scrutton LJ held that ‘a contract void in the place where it is made, by reason of the omission of formalities required by the law of that place, is void elsewhere’.49 Thus, he considered the law of the cause for questions of formal validity to be the law of the place where the transfer occurred. In Guatemala v Nunez, this was the law of Guatemala. Lawrence LJ disagreed, holding that the law of the cause was the law of the place where the debt was situate.50 Following normal principles for identifying the location of the debt, he considered that it would be situate where the debtor, the bank, happened to be. Lazard Brothers was in England, and accordingly the law of England applied and the transfer was formally valid. Accordingly, Guatemala v Nunez produced no majority decision as to the law of the cause in questions of the formal validity of transfers of debts. The law remains unsettled. Sykes and Pryles suggested that compliance with the formalities of either the law of the place where the transfer occurred or the law of the place where the debt is situate might be sufficient for the transfer of the debt to be considered formally valid in the forum.51 However, since Raiffeisen Zentralbank Osterreich AGC v Five Star General Trading LLC52 there are better reasons to doubt that English courts would continue to give a role for the law of the place where the debt was situate, and the law of the place of the transfer — if not, to follow Raiffeisen, the proper law of the banking contract — might have a stronger claim as the governing law.

Single voluntary transfer — essential validity 21.26  A question of the essential validity of a transfer of a debt arises when, in one of the relevant places, it is not possible to alienate the debt in the circumstances of the case.

48. 49. 50. 51. 52.

At 684. At 690. At 697–8. E I Sykes and M C Pryles, Australian Private International Law, 3rd ed, Lawbook Co, Sydney, 1991, p 694. [2001] 3 All ER 257; see also 21.21.

526



Transfer of Property between Living and Corporate Persons

21.27

In Lee v Abdy, Mr Lee purported to transfer a policy of life insurance in Cape Colony to his wife while he was insolvent. Under the law of Cape Colony, an insolvent could not transfer a debt in order to defeat the claims of his creditors. This was a question of essential validity. In proceedings brought by Mrs Lee in England for the recovery of moneys under the insurance policy, the Divisional Court held that the law of Cape Colony applied. Again, there was also a question of capacity in Lee v Abdy but, in relation to the question of essential validity, both Day and Wills JJ held that the law of the place where the transfer occurred applied.54 However, Day J reached this conclusion on the assumption that the debt had no location recognised by law and, accordingly, the validity of its transfer had to be determined by the law applicable to the contract under which the transfer was made. While Day J’s use of the proper law is consistent with Raiffeisen Zentralbank Osterreich AGC v  Five Star General Trading LLC,55 the assumption that a debt has no legal location was incorrect.56 In Lee v Abdy, Day J also held that the law of Cape Colony could also apply because both Mr and Mrs Lee were domiciled there,57 but the decision stands as stronger authority for the law of the place where the transfer occurred as being the law of the cause. This is also supported by Re Anziani, Herbert v Christopherson,58 an English case which concerned the transfer in Italy of a power of appointment. The law of Italy did not recognise powers of appointment, making the question one of the essential validity of the transfer. Maugham J held that law of the place where the transfer purportedly occurred applied to the case.59 As this was the law of Italy, no transfer was recognised. A possibly contrary view was recently expressed by Stevenson J of the Supreme Court of New South Wales in The Ocean Marine Insurance Co Ltd v CSR Ltd.60 The judge noted that, in the case of a ‘mixed transfer’, containing both voluntary and involuntary aspects, where a conflict exists between the lex loci actus and the lex situs in terms of the essential validity of the transfer, the latter should prevail.61 53

Single voluntary transfers — capacity 21.27  There had been a question of capacity in Lee v Abdy,62 as the law of Cape Colony prohibited a wife from receiving a transfer of property from her husband. This was the law of the cause, but Day J adopted it on the ground that it was both the law of the place where the transfer occurred and the law of the place where the transferee was domiciled.63 Wills J seemed to adopt the former as the law of the cause,64 but any preference for the law of the place where the transfer occurred must be clouded by the subsequent decision in Guatemala v Nunez.65 This raised a question of capacity, so far as the transfer to Nunez 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65.

(1886) 17 QBD 309. At 312–14. [2001] 3 All ER 257; see also 21.21. See 20.28–20.29. (1886) 17 QBD 309 at 313. [1930] 1 Ch 407. At 421–2. [2012] NSWSC 1229. At [87], [94]–[95]. See 21.26. (1886) 17 QBD 309 at 312–13. At 314. See 21.24.

527

21.27

Private International Law in Australia

was ineffective under the law of Guatemala on the ground that he, as a minor without a tutor or court-appointed representative, could not receive the transfer of the debt. In the Court of Appeal, both Scrutton and Lawrence LJJ held that the question of capacity was to be determined in accordance with the law of Guatemala — either because that was the law of the place where the transfer purportedly occurred or because it was the law of the place where the transferee was domiciled at the time of the transfer.66 Therefore, Guatemala v Nunez failed also to provide a settled choice of law rule for questions of essential validity.

Single involuntary transfers 21.28  The cases discussed above concerned single transfers of debts that were voluntary.67 As Mance LJ confirmed in Raiffeisen Zentralbank Osterreich AGC v Five Star General Trading LLC,68 the rule applicable to single transfers of debts that are involuntary is different, as the element of consent is of significant legal effect. Involuntary, non-consensual transfers are made by operation of law, such as by a confiscation or appropriation or by a garnishee of the debt. Here, the rule is that the law of the cause is the law of the place where the debt is situate.69 Although this rule is contested,70 it remains intact after two House of Lords decisions denying English courts the right to make garnishee orders that would not be recognised as discharging a debt in the place where the debt was situate. In Société Eram Shipping Co Ltd v Compagnie Internationale de Navigation,71 the plaintiff sought in England to enforce a French judgment (registered in England) against the judgment debtors, all of whom were resident in Hong Kong. A third party debt (or garnishee) order was sought against bank accounts held at the judgment debtors’ bank in Hong Kong, which had an office in London. The House of Lords refused the order, on the ground of undisputed evidence that an English garnishee order, requiring the Hong Kong bank to pay money from the bank accounts to the plaintiff, would not be recognised in Hong Kong as then discharging the bank’s obligation to meet its liabilities to the depositors. While it was recognised that a third party debt order could be issued against an overseas bank account, this would not be done if the law of the place where the debt was situate would not recognise that compliance with the order would discharge the obligation to pay the debt to the depositor. As Lord Millett put it:72 If the debt is situate abroad, the court should not seek to evaluate the risk of the third party being compelled to pay twice. The only relevant question is whether the foreign court would regard the debt as automatically discharged by the order of the English courts.

66. 67. 68. 69.

70.

71. 72.

[1927] 1 KB 669 at 693, 700–1. See 21.23–21.27. [2001] 3 All ER 257 at 271; see also 20.21. Swiss Bank Corp v Boehmische Industrial Bank [1923] 1 KB 673; Re Helbert Wagg & Co Ltd [1956] Ch 323; Power Curber International Ltd v National Bank of Kuwait [1981] 3 All ER 607; Société Eram Shipping Co Ltd v Compagnie Internationale de Navigation [2003] 3 WLR 21; The Ocean Marine Insurance Co Ltd v CSR Ltd [2012] NSWSC 1229 at [82]. P Rogerson, ‘The Situs of Debts in the Conflict of laws — Illogical, Unnecessary and Misleading’ (1990) 49 Cambridge Law Journal 441; P Rogerson, ‘Third Party Debt Orders (Garnishee Orders) — Foreign Bank Accounts’ (2003) 62 Cambridge Law Journal 576 at 578–9. [2003] 3 WLR 21. At 57.

528



Transfer of Property between Living and Corporate Persons

21.30

Société Eram Shipping was followed in Kuwait Oil Tanker Co SAK v  Qabarzard,73 where a judgment had been obtained in England against the judgment debtor. It then took approximately three years to find assets held by the judgment debtor, and these were discovered in the form of Swiss bank accounts. A third party debt order was sought in England against the Swiss bank accounts, but was refused. The House of Lords concluded that, under the Lugano Convention applicable within the European Economic Area, the Swiss courts had exclusive jurisdiction in proceedings for the enforcement of a judgment in Switzerland. However, of more general relevance for the statement of common law principle, Lord Hoffmann’s speech also rested on the ground that the English order would not discharge the banks’ debts to the judgment debtor in Switzerland, where the bank accounts were located.74

Multiple transfers 21.29  It also seems that, where multiple transfers are involved, the law of the cause is the law of the place where the debt is situate. These could include questions analogous to the derivative claims considered in choice of law cases concerning tangible movables.75 The effectiveness of a transfer of the debt could depend on the validity of any earlier transfer of the debt. However, the reported cases have involved the different question of priorities. The parties to the proceeding — A and B — both have an interest in the debt, but the law of Ruritania considers that A has the superior claim where the law of Hentzau considers that B does. According to Re Queensland Mercantile Agency Co Ltd,76 the law of the place where the debt is situate provides the relevant rule of priority. 21.30 In Re Queensland Mercantile Agency Co Ltd the company, Queensland Mercantile, was incorporated in Queensland. Its shareholders included a number of people resident in Scotland. Each share was paid to £50, and another £50 remained unpaid. In 1866, the first transfer occurred by way of charge. Queensland Mercantile borrowed £60,000 from the Union Bank of Australia and charged the uncalled capital on the shares as security. That same year, Queensland Mercantile called for the £50 per share that was still owing. The proceeds should have been paid to the Union Bank to help repay the loan of £60,000. However, soon afterwards, the second transfer took place. Australian Investment Company, which was incorporated in Scotland, successfully brought proceedings in Scotland against Queensland Mercantile’s Scottish shareholders. These proceedings were for arrestment, a process by which the call on the shares held in Scotland was ‘arrested’ and the moneys called transferred to Australian Investment Company. In Scotland, an interest in moneys created by arrestment had priority over other interests. In proceedings subsequently brought in England, North J held that the question whether the Union Bank or Australian Investment Company should have priority was to be determined in accordance with the law of the place where the property was situate.77 The unpaid calls were debts — moneys owing to Queensland Mercantile. They were located where the debtors were, which, in the case of the 73. 74. 75. 76. 77.

[2003] 3 All ER 501. At 507. See 21.13–21.14. [1891] 1 Ch 536. At 543.

529

21.30

Private International Law in Australia

Scottish shareholders, was Scotland. Therefore, Scots law determined which company had a superior claim to the moneys to be paid under the calls by the Scottish shareholders and, accordingly, Australian Investment Company established priority. North J expressly held that the question would not be governed by the law of the place where the company, Queensland Mercantile, was domiciled.78 The decision was affirmed by the Court of Appeal.79

Other intangible movable property 21.31  Strangely, it is only in cases concerning debts that the choice of law rules have fragmented. Although there has been less adjudication, this has not been the case for other intangible movable property: that is, choses in action and choses in equity other than debts. Among these could be included shares, interests in partnerships, vendor’s liens and beneficiaries’ interests in trusts and deceased estates.80 The application of the law of the place where the property is situate is less questioned in cases concerning the transfer of other intangibles, although given the paucity of authority for intangibles other than shares it would be imprudent to predict that this will inevitably be the law of the cause. However, in the case of shares there is little doubt that questions concerning the formal and essential validity of a transfer of the shares are to be determined by the law of the place where the shares are situate.81 There is still a distinction to be made between the effectiveness of the transfer to the transferee, and the rights and obligations of the transferor and transferee between each other. As Lord Herschell held in Cady,82 this latter question is to be governed by the law of the place where the transfer occurred. 21.32  It would be expected that questions of priorities in relation to other intangibles should be determined in accordance with the law of the place where the property is situate, as was held to be the case for debts in Re Queensland Mercantile Agency Co Ltd.83 Kelly v Selwyn84 achieved a result consistent with this, but for different and confused reasons. 21.33 In Kelly v Selwyn, Mr Solomon had died leaving legacies to his executors, to hold for his son, Mr Selwyn. The will was executed in England, the executors were in England and the legacies were invested in English securities. Mr Selwyn, who was domiciled in New  York, purported to transfer his interest in the reversion of the estate twice. First, in 1891, he transferred the reversionary interest to his wife. This occurred in New York. Second, in 1894, he transferred the same interest in the estate by way of mortgage to Mr Kelly. This occurred in England, and at the same time Mr Selwyn notified the executors of Mr Solomon’s will of this transfer. In 1903, he gave notice to the executors of the first transfer he had made to his wife in 1891. Subsequently, the reversionary interests fell into possession, and both Mr Kelly and Mrs Selwyn claimed in proceedings in England to be 78. 79. 80. 81. 82. 83. 84.

At 545. Re Queensland Mercantile Agency Co Ltd [1892] 1 Ch 219. See 20.16–20.20. Colonial Bank v Cady (1890) 15 App Cas 267 at 283; Re Fry [1946] Ch 312; Macmillan Inc v Bishopsgate Investment Trust Plc (No 3) [1996] 1 All ER 585. Colonial Bank v Cady (1890) 15 App Cas 267 at 283. See 21.30. [1905] 2 Ch 117.

530



Transfer of Property between Living and Corporate Persons

21.36

entitled to them. Under the internal law of New York, the first transfer made had priority and, accordingly, Mrs Selwyn would be entitled to the interests. Under the internal law of England, the first transfer notified had priority and Mr Kelly would have the superior claim. Warrington J held that Mr Kelly was entitled to the interests. 21.34  The result in Kelly v  Selwyn is consistent with the application of the law of the place where the property was situate. Interests in an estate are deemed to be located where the proper administration of the estate can be enforced: that is, where the executors are resident. This was England, and therefore the law of the place where the interests were situate was applied. However, Warrington J decided that the internal law of England applied because an English trust was involved.85 Mr Solomon had also contemplated that an English court would supervise the administration of the estate. This reasoning is devoid of any reference to choice of law rules. However, it does have some compatibility with the idea that the assignments were governed by the law of the instrument under which the interest was assigned. This is akin to the approach taken by the English Court of Appeal in Raiffeisen Zentralbank Osterreich AGC v  Five Star General Trading LLC,86 where the validity of an assignment of benefits under a policy of marine insurance was held to be determined by the proper law of the insurance contract.87 Warrington J’s approach in Kelly v Selwyn was accepted by Barton J in Australian Mutual Provident Society v Gregory,88 but Gregory dealt with immovable property and Barton J’s reference to Kelly v Selwyn was probably incorrect. 21.35  By contrast, in the case of security interests in intangible property89 and ‘financial property’ (which includes shares),90 the Personal Property Securities Act provides that the validity of an interest in such property is determined by the law of the jurisdiction in which the grantor is located when the security interest attaches, under that law, to the property. This rule marks a departure from the common law position. The perfection and effect of perfection or non-perfection of such a security interest (which would likely include questions of priority) is governed by the law of the jurisdiction in which the grantor is located at that time.91 21.36  Finally, the issue of whether an intangible interest may be assigned at all is governed by the law pursuant to which the right is created. So, the assignability of a cause of action or right to sue is determined by the law of the place in which the cause of action arose, not by the law governing the assignment.92

85. 86. 87. 88. 89. 90. 91. 92.

At 122. [2001] 3 All ER 257; see also 17.3 and 21.21. Cf P Rogerson, ‘Choice of Law — Notice of Assignment’ (2001) Cambridge Law Journal 14. (1908) 5 CLR 615 at 635. Personal Property Securities Act 2009 (Cth) s 239(1). Personal Property Securities Act 2009 (Cth) s 240(1). Personal Property Securities Act 2009 (Cth) ss 239(2), 240(4). Salfinger v  Niugini Mining (Australia) Pty Ltd (No 3) [2007] FCA 1532; EWC Payments Pty Ltd v Commonwealth Bank of Australia (No 2) [2014] VSC 4.

531

Chapter 22 Succession to Property on Death Introduction 22.1  This chapter deals with the multi-state aspects of the process by which the property that belonged to one person passes, on that person’s death, to others. In common law countries this process entails two broad steps: the administration of the deceased’s estate by a personal representative who recovers all of the deceased’s assets and pays all outstanding debts; and the distribution of the estate among the beneficiaries entitled to it under the will or in accordance with rules of intestacy. However, the broad process of administration and distribution includes other questions, such as the jurisdiction of courts to make orders in relation to the estate, the appointment of personal representatives, the manner in which the estate is to be administered and distributed, and the resolution of any testator’s family maintenance (TFM) claims made against the estate. It is necessary to deal with the following issues: (1) jurisdiction; (2) the appointment of a personal representative; (3) administration; (4) beneficial succession; (5) the exercise of powers of appointment; and (6) reform.1 22.2  The private international law of succession is unnecessarily complex. This is partially due to ‘the principle of scission’, requiring issues relating to immovable property and movable property to be dealt with separately. In general, questions concerning immovable property are determined by the law of the place in which the property is situate (lex situs), and those concerning movable property are determined by the law of the place in which the deceased was domiciled (lex domicilii). These broad principles alone would not unduly complicate principles, and these demand technical distinctions to be made between different issues of succession and, consequently, detailed classification of the subject matter of succession cases. It is unsurprising that proposals for the reform of the private international law of succession focus on the adoption of one law of the cause to determine all questions of  succession.2 No Australian jurisdiction has yet implemented these proposals.

1.

2.

Subsequently, in the notes in this chapter, references to the following Acts will be to jurisdiction only: Wills Act 1968 (ACT); Succession Act 2006 (NSW); Wills Act 2000 (NT); Succession Act 1981 (Qld); Wills Act 1936 (SA); Wills Act 2008 (Tas); Wills Act 1997 (Vic); Wills Act 1970 (WA). See 22.56.

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22.3

Private International Law in Australia

Executors and administrators 22.3  The usual structure of the law in common law countries is that title to property comprising a deceased person’s estate vests, by operation of the law, in a personal representative. This is an executor, when the representative is nominated as such in the will. In any other case, the court appoints an administrator to hold title to the estate and to conduct the administration. The administrator is cum testamento annexo when there is a valid will but no executor is named or the appointment of an executor fails. If the deceased has died intestate, the court-appointed representative is also called an administrator. However, in either case, the proof of the representative’s title is established by a grant of probate or letters of administration by a court exercising probate jurisdiction. In Australia, these are the Supreme Courts of the states and territories.

Jurisdiction 22.4  In all states (except Queensland) the rules of jurisdiction by which the Supreme Court can grant probate or letters of administration and, therefore, appoint a personal representative are still determined by the common law. This requires the presence of property (that was vested in the deceased) in the relevant state or territory.3 The presence of land or tangible movable property in the state or territory is a simple matter to determine. For debts and other intangible property, the court may initially have to identify the location ascribed to the property by law to determine whether it has any jurisdiction to appoint a personal representative.4 22.5  In Queensland and the territories, the Supreme Court can grant probate or letters of administration even though there is no property in the state or, indeed, the deceased left no property at all.5 The legislation places no limitation on the court’s jurisdiction to appoint a personal representative, although in Aldrich v Attorney-General6 Ormrod J suggested that, under the parallel English legislation, where there were no assets in the jurisdiction it would be contrary to principle to make a grant unless the deceased was domiciled in the forum. 22.6  The plea of forum non conveniens is probably of little, if any, importance in the states and territories where the common law continues to define the conditions in which probate jurisdiction can be exercised.7 On the one hand, jurisdiction only exists when there is property in the forum and, on the other hand, property in that place can only be dealt with when a personal representative has received a local appointment. In these circumstances, to decline to exercise jurisdiction on the ground of forum non conveniens would effectively 3.

4. 5. 6. 7.

Evans v Burrell (1859) 28 LJP & M 82; Goods of Tucker (1864) 34 LJPM & A 29; Preston v Melville (1841) 8 Cl & F 1 at 12–13; 8 ER 1 at 5–6. The fact that the will did not dispose of any property in the forum is no bar to jurisdiction as long as property exists in the forum and the deceased intended his or her will to have testamentary effect in the forum; see Re Estate of Burgess (dec’d) (2011) 111 SASR 401; [2011] SASC 223 at [14]. See 20.10–20.20. Qld s 6(2); Administration and Probate Act 1929 (ACT) s 9(2); Administration and Probate Act (NT) s 14(2); see, for example, Estate of Wayland [1951] 2 All ER 1041. [1968] P 281 at 295. See 4.32–4.56.

534

Succession to Property on Death



22.8

prevent any transfer of the property to the beneficiary entitled. However, in Queensland and the territories there may be a role for the doctrine of forum non conveniens in the exercise of probate jurisdiction — notably in cases where there is no property in the state, or no litigation to be pursued in the state by or against a personal representative on behalf of the estate.8

The appointment of a personal representative 22.7  So long as a court is able to exercise jurisdiction in relation to a deceased person’s estate, it has power to appoint the personal representative or representatives who are to undertake the administration of the estate and its distribution. It is not possible in any Australian state or territory for a person to deal lawfully with assets in the jurisdiction without a court appointment.9 However, for small estates it may be practically possible for an executor to complete the administration of the estate without a grant of probate by proving the executorship to debtors, banks, financial institutions and so on by other means. The person who does meddle with assets in the forum state or territory without having received a local court appointment may, nevertheless, be liable for the manner in which the estate was administered as an executor de son tort. In most cases, the court will appoint as executor the person named as such in the will. The court can only appoint another person to administer the estate in special circumstances.10 In the case of a will that does not include an appointment of an executor, or in the case of an intestacy, the court will normally appoint as administrator a beneficiary of the estate. These principles apply even when the personal representative is foreign.11 However, where a court in another place — whether inside or outside Australia — has made an appointment of a personal representative, this may affect the making of a local grant.

Scission 22.8  In Australia, the principle of scission must be taken into account when considering whether a grant made in another jurisdiction is to be confirmed locally and, if so, the extent to which it is to be confirmed. In Lewis v Balshaw,12 the testatrix died domiciled in England in 1933, leaving property — movable and immovable — in New South Wales. Mr Balshaw, the executor named in the will, was granted probate by the English High Court and sought an ancillary grant of administration for his attorney, Perpetual Trustee Company Ltd, in the Supreme Court of New South Wales. This was challenged on the grounds that the will was not properly executed and that the testatrix lacked capacity to make the will. In the Supreme Court, Nicholas J held that a grant had been made in the place where the deceased was 8. 9.

10. 11. 12.

Cf Clements v Macaulay (1866) 4 Macph 583 at 592; Orr-Ewing’s Trustees v Orr-Ewing (1885) 13 R (HL) 1 at 27. New York Breweries Co v Attorney-General [1899] AC 62; Hiralal v Hiralal [2013] NSWSC 984 at [164]; The High Commissioner for Pakistan in the United Kingdom v National Westminster Bank plc [2015] EWHC 3052 (Ch) at [28]–[29]. Inland Revenue Commissioners v Stype Investments (Jersey) Ltd [1982] Ch 456. Cf Inland Revenue Commissioners v Stype Investments (Jersey) Ltd [1982] Ch 456. (1935) 54 CLR 188.

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Private International Law in Australia

domiciled and that, in the present case, this grant should be followed in New South Wales. He therefore refused to try the issues relating to the validity of the will. However, an appeal to the High Court of Australia succeeded. 22.9 In Lewis v Balshaw13 Rich, Dixon, Evatt and McTiernan JJ strongly emphasised the distinction between movables and immovables. They were prepared to follow the English grant insofar as it related to movable property in New South Wales, but not as to immovable property in the state. Starke J concurred. The joint majority held that the grant in respect of movables will be made in the forum to the representative who had already been appointed by a court in the place where the deceased was domiciled at death without further investigation of the representative’s title, unless the representative is disqualified under the law of the forum ‘or there is some special reason against the recognition’.14 However, title to administer immovables in the forum must exist under the law of the place where the property was situate. Hence, to the extent it dealt with movable property in New South Wales, the English grant to Mr Balshaw was recognised and confirmed. In contrast, to the extent the will dealt with immovable property in the state, the appointment of a personal representative had to be determined independently and, in the case in hand, the trial judge should have heard and determined the objections to the validity of the will.15 The result of Lewis v Balshaw is that an appointment made in the place where the deceased was domiciled at death will, subject to limited exceptions, be confirmed in an Australian state or territory to the extent that it relates to movable property. That appointment has no special weight in considering the appointment of a local representative who is to administer immovable property in the forum. This is not the case in England, where a grant made in the place of domicile is normally followed even if the estate includes immovables.16 In Australia, the court would, it appears, usually also confirm an appointment made in the place where immovable property was situate, to the extent that the grant relates to the relevant immovable. However, the rules of jurisdiction generally ensure that, when it is practically necessary to make a grant locally, the relevant immovable will be situate in the forum. The grant would therefore be made independently in accordance with the law of the forum. From the above, it is evident that no special weight is given to a grant made in some place other than the place where the deceased was domiciled at death or the place where immovable property was situate. 22.10  The general principle is that the person entitled to administer the estate under the law of the place where the deceased was domiciled at death is entitled to be appointed as the local personal representative. If the principle of scission as reinforced by Lewis v Balshaw17 is to be honoured, this principle is limited to appointments to administer movable property. The person entitled to administer immovable property under the law of the place where it is situate has a similar entitlement to be appointed the local representative to administer the immovable. Therefore, if in the case of movables a court appointment has not yet been made in the place of domicile,18 or there is no comparable procedure for appointing a 13. 14. 15. 16. 17. 18.

(1935) 54 CLR 188. At 193. At 195, 198. Goods of Meatyard [1903] P 125. (1935) 54 CLR 188; see 22.8–22.9. Goods of Whitelegg [1899] P 267.

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Succession to Property on Death

22.12

representative in the place of domicile, the person entitled under the law of the place where the deceased was domiciled at death to receive an appointment or otherwise administer the estate, is most likely to be confirmed locally as personal representative. In cases where an executor (A) has been named in the will but, under the law of the domicile, another person (B) is the preferred representative to undertake the administration of the estate, the court may appoint either A or B to be the local representative, whoever applies first.20 But consistently with the role of the place of domicile, should A and B contest the appointment of a local representative, the court will tend to follow the law of the domicile and make the grant in favour of B.21 19

Re-sealing of foreign and Commonwealth grants 22.11  In all states and territories of Australia, legislation enables a grant of probate or of administration made in almost any Commonwealth country to be re-sealed, and thereby made effective for the administration and distribution of property in the forum state or territory. In South Australia, Tasmania and Victoria, the legislation also allows the re-sealing of grants made in other foreign countries.22 This legislation is part of a scheme initiated under the Colonial Probates Act 1892 (UK), and generally only applies to grants made in jurisdictions which made reciprocal provision for the resealing of grants made in the relevant state or territory. The required reciprocal arrangements have been made in almost all other Commonwealth countries. There is, however, no right to the re-sealing of one of these grants — it lies completely within the court’s discretion.23 It would appear that the court would be prepared to re-seal the grant if made in the place where the deceased was domiciled at death,24 and if there is property, however insignificant, in the forum.25 Power exists to re-seal in other cases, but the practice of the English courts has been to exercise the discretion to re-seal in accordance with the common law rules of jurisdiction and of the recognition of foreign appointments.

Refusal to confirm grants 22.12  The court is likely to refuse confirmation to an appointment made, for movables, in the place of domicile and, for immovables, in the place where the property was situate in two cases. These are, first, where the representative is disqualified under the law of the forum and, second, where confirmation of the appointment would be contrary to 19. 20. 21. 22.

23. 24. 25.

Goods of Dost Aly Khan (1880) 6 PD 6; Re Achillopoulos [1928] Ch 433. Re Goenaga [1949] P 367. Goods of Meatyard [1903] P 125; Re Manifold [1962] Ch 1 at 17–18. Administration and Probate Act 1929 (ACT) s 80; 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) ss 17–19; Administration and Probate Act 1935 (Tas) s 48; Administration and Probate Act 1958 (Vic) s 88(4); Administration Act 1903 (WA) s 6. An application in South Australia to re-seal a grant of letters of administration made in Victoria occurred in In the Estate of Giovanni Antonio Tamburin (2014) 119 SASR 143; [2014] SASC 58. Re McLaughlin [1922] P 235 at 237. Re McLaughlin [1922] P 235 at 237. Goods of Sanders [1900] P 292.

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22.12

Private International Law in Australia

public policy. The first exception means the law of the forum continues to dictate the qualities required of a personal representative, though not the actual person. Therefore, regardless of what is permitted by the law of the domicile, an Australian court will not confirm the appointment of a minor as personal representative.27 The second exception probably underlies Helsham J’s decision in Bath v British and Malayan Trustees Ltd.28 There, his Honour refused confirmation of an appointment because the executor appointed in Singapore had undertaken to the Singaporean court to use assets in New South Wales to pay outstanding Singaporean tax, which would have infringed the rule against enforcement of foreign revenue claims. Even outside these two exceptional categories, the court has a general discretion to refuse to follow the law of the place of domicile or where the property was situate or a grant made there, albeit that it is infrequently exercised. And, in cases where the applicable foreign law does not identify a representative to administer the estate, the court can make an independent judgment as to an appropriate representative. Naturally, that judgment will be made in accordance with the law of the forum.29 26

Representative’s accountability 22.13  The assumption underlying a local grant of probate or of administration is that all of the deceased’s property vests in the locally appointed representative, even if the property is located outside the forum. The practicality is that, to deal with assets in a foreign place, the representative will have to meet the legal requirements applicable in the relevant foreign place for obtaining the right to deal with the property — whether that be by a court appointment or otherwise. Still, the theory has implications. The local representative is naturally deemed to have title to property situate in the forum at the time the deceased died.30 The local representative is also deemed to have title to property that enters the forum after the death.31 The representative is therefore accountable for the administration of this property. Since they are deemed at common law to have title to property in other places, the representative will also be accountable in the forum for the administration of property — situate elsewhere — that the representative effectively controls by having obtained title in accordance with the law of the place where it was situate.32 Though authority is scarce, it therefore seems that the representative is not accountable for the administration of property to which another person has obtained title under the law of the place where that property is situate.

Administration 22.14  The administration of a deceased estate by a personal representative is to be conducted in accordance with the law of the place in which the representative received 26. 27. 28. 29. 30. 31. 32.

Lewis v Balshaw (1935) 54 CLR 188 at 193. Goods of Duchess d’Orleans (1859) 1 Sw & Tr 253; 164 ER 716. [1969] 2 NSWR 114. For example, Goods of Kaufman [1952] P 325. Inland Revenue Commissioners v Stype Investments (Jersey) Ltd [1982] 1 Ch 456 at 473. For example, Whyte v Rose (1842) 3 QB 493 at 506; 114 ER 596 at 601; Weinstock v Sarnat [2005] NSWSC 744. Stirling-Maxwell v Cartwright (1879) 11 Ch D 522.

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Succession to Property on Death

22.15 

their grant: that is, the law of the forum. This rule applies even when the local grant is merely ancillary to a principal administration being conducted in the place where the deceased was domiciled at death. The law of the forum governs the local administration. In this latter case, it becomes important to distinguish matters of administration and matters of beneficial succession, as the latter are likely to be governed by the law of the place of the deceased’s domicile or some variant of that. Where it is necessary to classify an issue as one of administration or succession, the classification is made in accordance with the law of the forum.34 33

Principal administration 22.15  For the purposes of private international law, the administration of an estate includes, in the first place, the duty to recover the assets of the estate and, therefore, to provide an effective discharge of debts that had been owing to the deceased. In general, a local appointment is necessary to be able to give an effective discharge and a debtor will not be able to rely on a payment made to a foreign representative acting without a local grant.35 Second, the payment of debts is a matter of administration. The law of the forum determines whether a debt is to be paid, and the priority of payment. Because foreign revenue debts are generally unenforceable in Australia, they should not usually be paid.36 However, interstate revenue debts are enforceable in any Australian state or territory and should be paid, as should New Zealand revenue judgments and certain Papua New Guinea income tax judgments made enforceable by registration.37 The representative should not pay any debt that under the forum’s statute of limitations has been extinguished — even if the debt remains payable under the law of the place of domicile.38 And, the priority in which payments are to be made is determined by the law of the forum.39 If it appears that the estate is insolvent, the representative may present the appropriate petition for bankruptcy administration and have the property distributed by an Official Trustee in accordance with the Bankruptcy Act 1966 (Cth).40 Third, the right to postpone the distribution of the estate to the beneficiaries once the estate has been ascertained is a question of administration.41 In all states and territories, the right of postponement can be exercised if all of the beneficiaries are minors, so this power could be exercised by a representative undertaking an ancillary administration.

33.

34. 35. 36. 37. 38. 39. 40. 41.

Re Lorillard [1922] 2 Ch 638; Scottish National Orchestra Society v Thomson’s Executor 1969 SLT 325 at 327; Permanent Trustee Co (Canberra) Ltd v Finlayson (1968) 122 CLR 338 at 342–3; Hiralal v Hiralal [2013] NSWSC 984 at [150]; Shenken v Phoenix Life Ltd [2015] ScotCS CSOH_96 at [14]. Scottish National Orchestra Society v Thomson’s Executor 1969 SLT 325 at 328. Cf Thomson v Harding (1853) 2 El & Bl 630 at 640; 118 ER 904 at 907. Scottish National Orchestra Society v Thomson’s Executor 1969 SLT 325 at 328. See 5.67 and 5.77. Re Lorillard [1922] 2 Ch 638. Re Kloebe (1884) 28 Ch D 175. Bankruptcy Act 1966 (Cth) ss 247–252JC. Re Kehr [1952] Ch 26.

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Private International Law in Australia

Ancillary administration 22.16  The estate is available for distribution among the beneficiaries once it is ascertained: that is, the assets collected and the liabilities paid. Usually, the distribution of the estate is carried out by the principal representative appointed in the place where the deceased was domiciled. This raises the question how a surplus resulting from an ancillary administration conducted in the forum is to be dealt with. Here, the local representative is best to seek directions from the court as it has some discretion in determining the ultimate destination of the surplus. In most cases it will order the surplus be remitted to the principal representative, who then will use it to complete the process of administration and distribution.42 However, there is power to order otherwise — especially when the interests of local beneficiaries are concerned. In Re Lorillard,43 Eve J ordered that an English administrator had to deal with surplus assets as though they were free for distribution among English beneficiaries and not to remit them to the principal administrator in New York. To have taken the latter course would have made the surplus available to American creditors whose claims were outside the limitation period in England, but not in New York. The decision effectively created a preference for the local beneficiaries over foreign creditors, and is a regrettable example of forum bias. The Court of Appeal nevertheless held that Eve J had exercised his discretion legitimately. In Australia, the High Court has interpreted Lorillard as authority for the principle that a remission to the principal representative in the place of domicile need not be made if to do so would subject property in the forum to a claim that is not enforceable against it in the administration conducted under the law of the forum. However, the court also refused to express any opinion on whether this principle was law in Australia.44

Beneficial succession 22.17  The principle of scission is adhered to rigidly in questions of beneficial succession: that is, the question as to who is entitled to the use and enjoyment of the property, whether under a will or by operation of law. Therefore, a primary distinction must first be made between questions involving immovables and movables, as the choice of law rules concerning the former generally centre on the law of the place where the immovable is situate and the latter on the place of domicile. But, as has already been mentioned, there are many variations on these themes. These require further distinctions in the subject matter of disputes relating to beneficial succession to property, and so the process of classification here is extensive.

42. 43. 44.

See, for example, Re Manifold [1962] Ch 1; Re Estate of Weiss [1962] P 136; Re Lord Cable [1977] 1 WLR 7 at 25–6. [1922] 2 Ch 638. Permanent Trustee Co (Canberra) Ltd v Finlayson (1968) 122 CLR 338 at 346.

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Succession to Property on Death



22.20

Immovable property Intestate succession 22.18  In private international law, a question of intestate succession arises when the deceased fails to leave any instrument purporting to take effect as a will. The law of the cause may regard a will as invalid, in which case its rules of intestacy are likely to be applied. However, it is pre-judging the issue to classify such a case as one of intestacy. It is one of testate succession, albeit that the relevant choice of law rule might select the law of a place that denies that there is an effective testamentary instrument. As a consequence, that then requires the case to be dealt with as an intestate succession. In genuine cases of intestate succession to immovable property, the law of the cause is the law of the place where the property is situate.45

Testate succession — formal validity 22.19  A question of formal validity arises when the dispute turns on some issue relating to the formalities required by one place or another for the will to be valid. This could include requirements as to attestation, the number and qualifications of witnesses, the physical condition of the instrument, and whether a holographic will is permitted. At common law the formal validity of a will relating to the disposition of immovable property is determined by the law of the place where the property is situate.46 It has, however, become much easier to establish the formal validity of a will, as all Australian states and territories have passed legislation modelled on the Wills Act 1963 (UK).47 In effect, this legislation provides that a will relating to the disposition of immovable property will be recognised as valid in the forum if it is recognised as valid in any of the following places: (1) the place where the property is situate; (2) the place where the will was executed; (3) the place where the deceased was domiciled either (i) at the time the will was executed; or (ii) at the time of death; (4) the place where the deceased was habitually resident either (i) at the time the will was made; or (ii) at the time of death; and (5) the place where the deceased was a national either (i) at the time the will was made; or (ii) at the time of death. Two of these require further explanation. Place of execution 22.20  The second situation mentioned above is the place where the will was executed. If the will was executed on board an aircraft or ship, the place of execution includes the place where the aircraft was grounded or in whose waters the ship was passing at the time. Or, the place of execution could be the place with which the aircraft or ship had its closest connection, having regard to the place where it was registered and other relevant circumstances. Further in relation to the place of execution, it is irrelevant how long the testator was in that place, so long as they were there at the time of execution. For example,

45. 46. 47.

Re Ralston [1906] VLR 689; Re Collens [1986] Ch 505. Coppin v Coppin (1725) 2 P Wms 291; Pepin v Bruyere [1900] 2 Ch 504. ACT ss 15A–15H; NSW ss 47–50; NT ss 45–48; Qld ss 33T–33Y; SA ss 25A–25D; Tas ss 60–62; Vic ss 17–19; WA ss 20–21.

541

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the holographic will in Re Wynn48 was recognised in England because it was valid in France, even though it was made in a hotel room in Lyon when the testatrix was in transit between Switzerland and England. Nationality 22.21  The fifth situation mentioned above is the place where the deceased was a national. Consequently, the problem of plurilegislative nationalities arises. The deceased might be a national of a federal or composite nation, like Australia or the United Kingdom, where succession is not a matter of federal or national law. In this case, if the federal or composite nation has a rule that indicates which of its constituent states or countries is to provide the law for determining the validity of the will, that rule applies. Otherwise, the relevant place is the place with which the deceased was most closely connected at the relevant time. Convention on Form of an International Will 22.22  In 2014, the Australian Government acceded to the 1973 Convention Providing a Uniform Law on the Form of an International Will.49 All states and territories50 have enacted legislation to implement the Convention. The Convention aims to harmonise and simplify formalities by providing a uniform law applicable to an ‘international will’, which is recognised as a valid form of will in all countries that are party to the Convention,51 irrespective of where the will was made, the location of the assets or the domicile, residence or nationality of the testator.52 An international will is an additional form of will that operates as an alternative to other forms of will.53 Under the uniform law the will must be in writing,54 the testator must have signed the will in the presence of two witnesses and an ‘authorised person’55 and the testator must have declared, in the presence of these persons, that the document is her or her will.56 The authorised person must attach to the will a certificate to the effect that the proper formalities of the uniform law have been satisfied.57 This certification is conclusive evidence of the formal validity of the international will.58 Note that the uniform law only establishes formalities for the will and its execution; it does not address matters such as the capacity of the testator or the interpretation of wills.

Testate succession — capacity 22.23  Questions of capacity are those which concern personal characteristics which affect the testator’s power to dispose of property by will; for example, testamentary age and

48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58.

[1983] 3 All ER 310. See . ACT Pt 3B; NSW Pt 2.4A; NT Pt 5A; Qld Div 6A; SA Pt 3A; Tas Pt 5A; Vic Pt 2 Div 7; WA Pt XA. As of 23 March 2018, there were 21 state parties to the Convention. Annex Art 1(1). Article 1(2). Article 3(1). Article 5(1). Article 4(1). Article 9. Article 12.

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22.26

soundness of mind. The law of the cause for questions of capacity to dispose of immovable property by will is undoubtedly the law of the place where the property is situate.59

Testate succession — essential validity 22.24  The question of the essential validity of a will differs from capacity in that the power to dispose of the property depends on some characteristic that is not personal to the testator. It includes such issues as whether it is possible to devise an interest in land,60 whether a proportion of the estate must be left to the spouse or child of the deceased,61 whether a gift offends the rule against accumulations,62 and whether the disposition creates a valid charitable trust.63 Once more, the law of the cause in all these cases is the law of the place where the property is situate.64

Testate succession — interpretation 22.25  It is when approaching questions of the interpretation of a will that the choice of law rules depart from the usual reliance on the law of the place where the property is situate. There are good reasons for this. As it is the basic purpose of the common law to give effect to the testator’s intention, the fundamental rule in interpreting the provisions of a will disposing of immovable property must be that the law intended by the testator is to be the court’s primary reference. This will rarely be expressed. Indeed, the best practical assumption to make is that the words used in the will have the meaning ascribed to them by the law of the place to which the testator belonged at the time the will was executed, and at present that is best represented by the law of the place of the testator’s domicile at that time.65 Therefore, it is presumed that the law of the place where the testator was domiciled at the time the will was made determines how it is to be interpreted, although, because the testator’s intentions are paramount, this can be displaced by some other law that it appears the testator intended to apply.66 However, the principle applicable to cases involving the interpretation of a will should be carefully distinguished from those concerning its effect. The effect of a will purporting to dispose of immovable property is determined in accordance with the law of the place where the property is situate.

Testate succession — effect 22.26 In Re Miller, Bailie v Miller,67 a settlement was made by Sir William Miller under which land in England was transferred to trustees, to hold it for Sir William’s eldest son James ‘and the heirs-male of his body in fee’ or, failing that, his second son John ‘and the heirs-male of his body in fee’. The settlement was in Scottish form. Sir William, a Scotsman, died in 1887. James had held the benefit of the land since the settlement had been made. He died 59. 60. 61. 62. 63. 64. 65. 66. 67.

Re Hernando, Hernando v Sawtell (1884) 27 Ch D 284. Nelson v Bridport (1846) 8 Beav 547; 50 ER 215. Re Bailey [1985] 2 NZLR 656; Re Hernando, Hernando v Sawtell (1884) 27 Ch D 284. Freke v Lord Carbery (1873) LR 16 Eq 461. Duncan v Lawson (1889) 41 Ch D 394. See, for a recent example, Vucicevic v Aleksic [2017] EWHC 2335 (Ch) at [36]. Yates v Thompson (1835) 3 Cl & Fin 544. See, for example, Studd v Cook (1883) 8 App Cas 577; cf Re Osoba, dec’d [1979] 1 WLR 247. [1914] 1 Ch 511.

543

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in 1906 without heirs, purporting to leave the land by will on trust disposition. However, the question arose whether James was able to dispose of the land by will or whether, in the alternative, it was entailed and therefore, on James’ death, passed to John. Under Scots law, Sir William’s settlement created an entail. This was not, however, a strict entail but a particular Scots form that would enable James to dispose of the land by will. In England, Warrington J nevertheless held that the land in England was to pass in accordance with the law of England and the entail. Under English law, entailed land could not be devised by will. It therefore passed to John, who held the land in tail mail. 22.27  Although at first glance it may appear that the settlement in Bailie v Miller was interpreted by reference to the law of England as the law of the place where the property was situate, this is not really the case. The decision makes a distinction between the interpretation of a settlement, and the effect to be given to that interpretation. Warrington J recognised that the settlement was in a Scottish form and that, under Scots law, this created a particular species of devisable entailed land (while admitting that the same words under English law were sufficient to create a strict entail). Still, the fact that the incidents of the Scottish entail differed from the incidents of the English entail did not mean the estate in England did not have to take effect according to English law.68 It is possible to interpret Warrington  J’s approach in Bailie v Miller as taking two steps. First, the settlement was interpreted in accordance with the intended law — Scots law — and discovered to create an entailed estate. Second, that estate had to be implemented in accordance with the law of the place where the land was situate — England. As under the law of England entailed land could not be devised by will, the property had to pass to John in accordance with the entail.

Testate succession — election 22.28  The doctrine of election arises in the following circumstances. A, by will, leaves land to B and a legacy of $100,000 to C. However, at the time of A’s death, the land is owned by C — either because A transferred it to C while A was still living, or because C purchased or inherited the land from someone else. In this case, C is put to an election. Either C can take the full legacy and transfer the land to B or, alternatively, C can keep the legacy and the land but compensate B for the value of the land. In the last case, provided the legacy is worth more than the land, the personal representative will probably pay the appropriate sum out of the legacy. This is a rule of equity, binding C’s conscience not to take the gift except by honouring A’s wish also to leave something for B. But, as such, it is typically only found in common law countries, raising the question whether the doctrine of election applies when the case has multi-state contacts. The general rule is that the beneficiary C is only put to an election between movable and immovable property where the doctrine of election is recognised under the law of the place where the deceased was domiciled at the time of death.69 The rule applies even when the property over which an election is made is an immovable in a foreign place, as a court in Australia can prevent the owner of the foreign immovable (C) from taking the full legacy unless title to the immovable is transferred in accordance with the will to B. 68. 69.

At 521. Re Ogilvie [1918] 1 Ch 492; Re Mengel’s Will Trusts [1962] Ch 791.

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Succession to Property on Death



22.31

22.29  To the general choice of rule applicable to questions of election for immovable property, three exceptions should be noted. The first is the case where A leaves land in Ruritania to B and, instead of a legacy, land in Hentzau to C — but where C already owns the land in Ruritania. The law of A’s domicile does not apply, as it is only appropriate where movable property is involved. Rather, the question whether the doctrine of election applies is determined by the law of Hentzau as the law of the place where the immovable left to C is situate. The second exception is probably obsolete. It arose in English cases where C became entitled to the land, under English law, as heir-at-law. This is the person who was entitled to inherit land where no valid will existed, or under an entail. In these cases, C has not been put to an election, even when the law of A’s domicile recognised the doctrine. So, whereby will land in England was invalidly devised to B and a legacy given to C, the heir-at-law, C could keep both the land and the legacy.70 In England, the exception was never made for an heir recognised under Scots or colonial law, let alone under a more distant foreign law.71 There is no Australian authority to support its application in favour of the person entitled to inherit land under the relevant Australian state or territory law of intestate succession and, as the exception has little to commend it, it is best considered inappropriate under Australian conditions. The third exception applies when A’s devise of land to B cannot be given effect under the law of the place where the land is situate. Even if the law of A’s domicile recognises the doctrine of election, C cannot be put to an election because it is legally impossible to give effect to A’s intentions to leave the land to B.72

Testate succession — revocation 22.30  Although other legal traditions might not recognise them, in Australia there are three possible ways of revoking a will: (1) revocation by a later will; (2) destruction of the original will; and (3) revocation by marriage, divorce or annulment. In a multi-state succession case, the question is whether an attempt to revoke a will by any of these means is effective. Revocation by will 22.31  For an attempt to revoke a will disposing of immovables by the execution of a later will, the revocation will be effective in any one of two cases. First, the revocation is effective if the later (that is, the revoking) will is valid under the rules determining the formal validity of a will disposing of immovable property. These rules have already been discussed.73 Second, even if the later will is formally invalid, the revocation can still be effective if the later will would have been valid under the rules of formal validity applicable to the earlier (that is, the purportedly revoked) will.74 Therefore, assume that the earlier and later wills are both formally valid under the law of Ruritania, but are invalid under the law of Hentzau. Having considered the rules for determining the formal validity of the later

70. 71. 72. 73. 74.

Re De Virte [1915] 1 Ch 920. Dewar v Maitland (1866) LR 2 Eq 834 at 839. Brown v Gregson [1920] AC 860. See 22.19. ACT s 15D(1)(c); NSW s 48(2)(c); NT s 46(4); Qld s 33T(2)(d); SA s 25C(c); Tas s 60(2)(c); Vic s 17(2)(c); WA s 20(2)(c).

545

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will, it appears to an Australian court that the law of Hentzau is the only possible governing law. The revocation of the earlier will can still be effective, so long as the formal validity of the earlier will can also be determined by the law of Ruritania. However, care should still be taken to give effect to the intention expressed in the later will. If, for instance, it makes a general revocation of earlier wills but there is also admissible evidence that establishes that some earlier testamentary disposition was to remain in place, then the revocation should not extend to that particular disposition.75 Destruction 22.32  For an attempt to revoke a will disposing of immovable property by the destruction of the will there is little authority. There is American authority for the proposition that the effect to be given to the destruction of a will disposing of immovable property is to be determined by the law of the place where the property is situate.76 In light of the general approach taken to immovable property, this must also have some claim to being the position in Australia. Marriage, divorce or annulment 22.33  The position changes again when the effect of marriage or divorce on a will is considered. In all states and territories, the marriage of a testator revokes a will unless the will was expressly made to be in contemplation of that marriage.77 Similarly, a will is also revoked to the extent that it provides for a gift to a former spouse if the testator’s marriage should be dissolved or annulled after the will was made.78 However, provisions like these tend to be concentrated in the common law world, and it can therefore become necessary to identify the law that should determine whether a marriage revokes a will disposing of immovable property. It is now well established that this is a question to be determined in accordance with the matrimonial law which, for these purposes, means the law of the place where the testator was domiciled at the time of marriage.79 It is unlikely that this rule is affected by the declining emphasis placed on domicile in choice of law questions relating to marriage since the passage of the Marriage Amendment Act 1985 (Cth).80 There is no authority indicating the law determining the effect of a divorce or annulment on a will. It is suggested that, by analogy to the cases dealing with the effect of marriage, the law of the place where the testator was domiciled at the time of the divorce or annulment should determine whether the decree effectively revokes a gift of immovable property.

75. 76. 77. 78. 79. 80.

Re Barker [1995] 2 VR 439; Re Ulvstig (dec’d) [2000] QSC 66; Re Estate of Crawford (dec’d) (2004) 90 SASR 119; [2004] SASC 370. Re Barrie’s Estate 35 NW 2d 658 (1949). ACT s 20 (this provision also applies to registered civil relationships between adults, including adults of the same sex); NSW s 12; NT s 14; Qld s 14; SA s 20; Tas s 16; Vic s 13; WA s 14. ACT s 20A; NSW s 13; NT s 15; Qld s 15; SA s 20A; Tas s 17; Vic s 14; WA s 14A. Estate of Micallef [1977] 2 NSWLR 929; Davies v Davies (1915) 24 DLR 737 at 740; cf Re Earl of Caithness (1891) 7 TLR 354. See 13.41–13.58.

546

Succession to Property on Death



22.36

Testator’s family maintenance 22.34  In all states and territories, legislation enables the dependants of the deceased to apply for a testator’s family maintenance (TFM) order, where the deceased has not made adequate provision for the dependants in their will. The terms of the TFM legislation vary widely. However, the question arises as to the possibility of obtaining a TFM order when, in a multi-state case, the testator dies leaving immovable property. This would appear to be governed by the TFM legislation of the place where the property was situate.81 In effect, this usually requires the TFM application to be brought in the place where the property is situate. Except in New South Wales,82 a court in an Australian state or territory will have no subject matter jurisdiction to adjudicate matters of title to immovable property outside Australia. Consequently, such a court cannot hear a TFM application brought under a foreign statute or apply a forum TFM statute in respect of such property.83 In New South Wales s 64 of the Succession Act 2006 (NSW) provides that a ‘family provision order may be made in respect of property situated in or outside New South Wales … whether or not the deceased person was … domiciled in New South Wales’. Brereton J of the Supreme Court of New South Wales in Hitchcock v Pratt84 declared this provision to be beyond the constitutional competence of the New South Wales Parliament where it purported to apply to property outside the state of a testator who died domiciled outside the state. In such a case there was insufficient connection with New South Wales. The section, however, could validly apply in respect of immovables outside New South Wales of a testator who died domiciled in New South  Wales.85 Although it is debated, there may be jurisdiction over immovable property in another state or territory under the cross-vesting scheme, at least where the matter arises in state, not federal, jurisdiction.86 The foreign TFM legislation may also not permit a court outside that country to make an order for provision out of immovable property within its borders.

Movable property Intestate succession 22.35  It is a long-established rule that intestate succession to movable property is governed by the law of the place where the deceased was domiciled at the time of death.87

Testate succession — formal validity 22.36  The formal validity of a will relating to the disposition of movable property is at common law to be determined by the law of the place where the testator was domiciled at 81. 82. 83. 84. 85. 86. 87.

Re Paulin [1950] VLR 462 at 464–5. See 3.8. Pain v Holt (1919) 19 SR (NSW) 105; Re Donnelly (1927) 28 SR (NSW) 34; Re Osborne [1928] St R Qd 129; Re Bailey [1985] 2 NZLR 656 at 658; Lai v Huang [2016] NZHC 2828 at [65]. (2010) 79 NSWLR 687 at [17]. At [19]; Chen v Lu [2014] NSWSC 1053 at [75]. See 3.6 and Uhlmann v Harris (No 2) [2018] QSC 28. Pipon v Pipon (1744) Amb 25; 27 ER 14; Bruce v Bruce (1790) 6 Bro PC 566; 2 ER 1271; Re Tang [2017] VSC 59 (rev’d on other gr’ds [2017] VSCA 171); In the Estate of Milind Bedake [2015] ACTSC 267.

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the time of death. It was the narrowness of this rule that, in England, prompted the reforms of the Wills Act 1861 (UK) (also called Lord Kingsdown’s Act) and, eventually, the Wills Act 1963 (UK). The latter has been adopted in all states and territories of Australia.89 It provides that a will relating to the disposition of movable property will be recognised as valid in the forum if it is recognised as valid in any of the following: (1) the place where the will was executed; (2) the place where the deceased was domiciled either (i) at the time the will was executed; or (ii) at the time of death; (3) the place where the deceased was habitually resident either (i) at the time the will was executed; or (ii) at the time of death; and (4) the place where the deceased was a national either (i) at the time the will was executed; or (ii) at the time of death.90 88

22.37  The comments about the provisions of Lord Kingsdown’s Act and the Wills Act that were made in the discussion concerning immovables apply equally here.91 Accordingly, if the will was executed on board an aircraft or ship, it would be recognised if it was valid in the place where the aircraft was grounded or in whose waters the ship was passing at the time, or in the place with which the aircraft or ship was most closely connected. Second, where the deceased was a national of a federal or some other composite nation, and succession is not a matter of federal or national law, the relevant rule to consult is that identified by the federal or national law itself or the law of the place in that country with which the deceased was most closely connected at the time. There is a third comment to make about wills disposing of movables in particular. The problem of renvoi is a real one when reliance is placed on the common law rule which identifies the law of the cause for questions of formal validity as the law of domicile.92 However, the problem cannot arise when reliance is placed on the connecting factors specified in the legislation, including domicile. The legislation refers the question of formal validity to ‘the internal law’ of the places it mentions and, so, it would appear to forbid reference to the choice of law rules of those places and the subsequent possibility of remission or transmission.93 The discussion above regarding the 1973 Convention Providing a Uniform Law on the Form of an International Will also applies here.94

Testate succession — capacity to give 22.38  The capacity of a testator to dispose of movable property is a question to be determined by the law of the place where the testator was domiciled.95 There is no clear indication in the cases whether this is to be the place where the testator was domiciled at the time of the execution of the will, or at the time of death. The latter is more typically used in cases of succession to movables. However, some commentators prefer domicile at the time the will was made, as this seems more directly relevant to the determination of 88. 89. 90. 91. 92. 93. 94. 95.

Bremer v Freeman (1857) 10 Moo PC 306; 14 ER 508. See 22.19. The Estate of Estrella Nadonza Ellis [2017] NTSC 56. See 22.20–22.21. See 8.13–8.35. ACT s 15A; NSW ss 47, 48(1); NT ss 45, 47; Qld s 5; SA s 25A; Tas s 61; Vic s 18; WA ss 4, 21. See 22.22; The Estate of Estrella Nadonza Ellis [2017] NTSC 56 at [8] n 2. Goods of Maraver (1828) 1 Hagg Ecc 498; 162 ER 658; Re Lewal’s Settlement Trusts [1918] 2 Ch 391; Re Estate of Fuld (No 3) [1968] P 675 at 696.

548



22.41

Succession to Property on Death

issues relating to capacity, such as testamentary age or soundness of mind. Peterson J’s decision in Re Lewal’s Settlement Trusts,97 though not directly resolving the point, seems supportive of this position. It does seem to have the stronger doctrinal base, although it could also be that a testator will have capacity to make a valid will if the law of the domicile at either the time of execution or death recognises that the testator had the requisite testamentary capacity. 96

Testate succession — capacity to receive 22.39  A distinction should be made between a testator’s capacity to give movable property and the beneficiary’s capacity to receive the gift. Lord Romilly MR’s decision in Re Hellmann’s Will98 is consistent with the idea that a legatee will be entitled to receive a legacy where the legatee has capacity under either the law of the place where the legatee is domiciled or the law of the place where the testator was domiciled at death. Therefore, an English court was prepared to order that an 18-year-old — who did not have capacity under English law — was entitled to a legacy because she had capacity to receive it under the law of Prussia, where she was domiciled.99 The cases have only involved legacies, but there seems no reason why they should not also apply to gifts of other movable property.

Testate succession — essential validity 22.40  The essential validity of a will relating to a disposition of movables is determined by the law of the place where the testator was domiciled at death.100 This rule holds whether the question involves a vitiating factor like duress or undue influence,101 or the right to give to a witness to the will.102 22.41  There are some questions undoubtedly concerning the essential validity of a will relating to movables, which are treated differently and, therefore, are classified differently. These involve issues like the application of the rule against perpetuities or the validity of a gift to charity. Early English authority suggested that the disposition would still be valid where it is lawful in the place where the property is to be enjoyed or administered.103 This approach was taken in relation to the rule against perpetuities in Re Mitchner,104 where the testator had died domiciled in Queensland. The residue of his estate was left to a German national, to administer for various philanthropic purposes in a German village. The bequest might have offended the rule against perpetuities, but in the Queensland Supreme Court, Shand J held that, as it was to be administered in Germany, the rule against perpetuities as it was applied in Queensland had no effect on the trusts.105

96. 97. 98. 99. 100. 101. 102. 103. 104. 105.

E I Sykes and M C Pryles, Australian Private International Law, 3rd ed, Lawbook Co, Sydney, 1991, p 753. [1918] 2 Ch 391 at 398. (1866) LR 2 Eq 363. Re Schnapper [1928] Ch 420. Re Groos [1915] 1 Ch 572; Re Levick’s Will Trusts [1963] 1 All ER 95. Estate of Fuld (No 3) [1968] P 675 at 698–9. Re Priest [1944] Ch 58. Fordyce v Bridges (1848) 2 Ph 497 at 515; 41 ER 1035 at 1042. [1922] St R Qd 252. Cf Chamberlain v Chamberlain 43 NY 424 at 434 (1870); Re Chappell’s Estate 213 P 684 (1923).

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Testate succession — interpretation 22.42  As is the case for dispositions of immovable property, the fundamental rule for interpreting the provisions of a will disposing of movable property is that the court must have primary regard to the law intended by the testator.106 However, unless there is evidence that the testator intended the will to be interpreted in accordance with some other law, it is presumed that questions of interpretation will be governed by the law of the place where the testator was domiciled. In the earlier English cases this was held to be the place where the testator was domiciled at death.107 This fails to recognise the primary role of the testator’s intention, which, of course, is expressed at the time the will was made. The preferred approach in more recent cases is therefore to presume that the law of intention is that of the place where the testator was domiciled at the time the will was made.108

Testate succession — election 22.43  Even though it is more commonly found in cases involving a devise of land, the doctrine of election can apply where there is a bequest of movable property. Consequently, an election could arise where A, by will, leaves a painting to B and a legacy of $100,000 to C, but at the time of A’s death it turns out that C already owns the painting. The rule is that C is only put to an election between the painting and the legacy where the doctrine of election is recognised under the law of the place where the testator, A, was domiciled at the time of death.109

Testate succession — revocation 22.44  As in the case of a will relating to a disposition of immovable property, a will relating to a disposition of movables can, in Australia, be revoked: (1) by a later will; (2) by destruction of the original will; and (3) by a subsequent marriage, divorce or annulment. Here, the choice of law rules largely parallel those applicable to the revocation of a will relating to immovables.110 Revocation by will 22.45  For an attempt to revoke a will relating to movables, the revocation will be effective if, in the first place, the later — revoking — will is valid under the rules for determining the formal validity of a will disposing of movable property. Or, alternatively, the revocation will be effective if the later will would have been valid according to the rules of formal validity applicable to the earlier — purportedly revoked — will.111 Again, if it appears that

106. Re Price, Tomlin v Latler [1900] 1 Ch 442. 107. Trotter v Trotter (1828) 4 Bli NS 502; 5 ER 179; Yates v Thompson (1835) 3 Cl & Fin 544; 6 ER 1541; Re Cunnington [1924] 1 Ch 68. 108. Re McMorran [1958] Ch 624 at 634; Durie’s Trustees v Osborne [1960] SC 444 at 450; Re Adams [1967] IR 424 at 458; Re Barker [1995] 2 VR 439 at 442–3; Re Blyth [1997] 2 Qd R 567 at 571. 109. Re Ogilvie [1918] 1 Ch 492; Re Mengel’s Will Trusts [1962] Ch 791. 110. See 22.30–22.33. 111. See 22.31.

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Succession to Property on Death

22.48

the intention of the later revoking will was to leave some disposition in the earlier will intact, then its revocation will not be held to extend to those earlier dispositions.112 Destruction 22.46  For an attempt to revoke a will relating to movables by its destruction, Velasco v Coney113 is consistent with the idea that the revocation is effective if recognised by the law of the place where the testator was domiciled. However, in Velasco, Langton J recognised the revocation of a will destroyed in accordance with the law of Italy on the basis that it was the testator’s intention that the will be revoked.114 No significance was placed on the fact that the law of Italy was the law of the testatrix’s domicile, although some commentators cite Velasco as authority for the law of domicile being the law of the cause. That may well be better, but if so the law of the testator’s domicile at the time of destruction should be preferred to that of the testator’s domicile at the time of death. Otherwise, the effectiveness of a revocation by destruction would remain unknown during the testator’s lifetime.115 Marriage, divorce or annulment 22.47  For the revocation of a will disposing of movable property by marriage, the revocation will only be effective if recognised by the matrimonial law — meaning the law of the place where the testator was domiciled at the time of marriage.116 It would be expected that the question as to whether a gift made by will was revoked by divorce or annulment should fall to be determined by the law of the place where the testator was domiciled at the time of the decree.117

Testator’s family maintenance 22.48  The question whether a court can order provision to be made for the dependants of the deceased out of the latter’s movable estate is one to be determined by the law of the place where the deceased was domiciled at death.118 In most cases it is necessary that a TFM application actually be made in a court in the place where the deceased was domiciled. The courts of the forum frequently only have jurisdiction to make a TFM order if the deceased died domiciled in the place of the forum,119 and the TFM legislation in the place of domicile may not permit orders to be made by a foreign court. Note, however, that in New South Wales, because of s 64 of the Succession Act 2006 (NSW) and Hitchcock v Pratt,120 a court has power to make a TFM order in respect of a deceased domiciled abroad with movable property in the forum.121 112. Re Barker [1995] 2 VR 439; Re Ulvstig (dec’d) [2000] QSC 66; Re Estate of Crawford (dec’d) (2004) 90 SASR 119; [2004] SASC 370; Re Hughes-Roberts (dec’d) [2018] SASC 133. 113. [1934] P 143. 114. At 148. 115. See also Re Traversi’s Estate 64 NYS 2d 453 (1946). 116. Re Martin, Loustalan v Loustalan [1900] P 211. 117. See 22.33. 118. Pain v Holt (1919) 19 SR (NSW) 105; Re Greenfield [1985] 2 NZLR 662. 119. See, for example, Re Herron [1941] 4 DLR 203; Mastaka v Midland Bank Executor & Trustee Co Ltd [1941] Ch 192. 120. (2010) 79 NSWLR 687, 121. See, eg, Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104 at [94].

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Private International Law in Australia

The exercise of powers of appointment General and special powers 22.49  A power of appointment is a power given to one person, B, to dispose of property belonging to another person, A, who directs the mode by which B will exercise the power.122 The situation that concerns the private international law of succession is where A (the donor), by a will or settlement, leaves B (the donee and appointer) a power to nominate in B’s will the person, C (the appointee), who is to receive property originally owned by A. The common law recognises a number of different classes of powers of appointment, but in multi-state cases the most important are general and special powers. A creates a general power when it is possible for B to appoint the property to anyone in the world. However, a special power is created when A specifies that B is only to appoint the property to a limited class of people, such as ‘to any descendant of A’. Whether a power is to be classified as a general or special power is probably a question to be determined by the law that governs the will or settlement by which A, the donor, created the power.123 However, there may be grounds simply to regard this question of classifying the power as one of interpretation of the will or deed of settlement. Since powers of appointment are not recognised in some countries at all, choice of law questions can arise as to whether a power has been created. They can also arise in deciding whether a power has been exercised and, if so, the effect of exercising that power. The law is further complicated by the principle of scission, for the choice of law rules for powers to appoint immovable property generally differ from those for powers relating to movables.

Formal validity 22.50  A question as to the formal validity of an exercise of a power of appointment can arise where the case has contacts with, say, the laws of Ruritania and Hentzau, but each imposes different formal requirements for the exercise of the power to be valid. In Australia, the exercise of the power of appointment will be recognised as formally valid in either of two general cases. First, the exercise of the power in the donee B’s will is valid under the law governing the formal validity of B’s will.124 Second, in Victoria, the exercise of the power in the donee B’s will is recognised if it is valid under the law that governs the validity of the will or deed of settlement by which A created the power. This appears to be the law governing either the formal or the essential validity of that will or deed of settlement by which A created the power.125 In all Australian states and territories, the exercise of the power in the donee B’s will is recognised if it is valid under the law that governs the essential validity of the will or deed of settlement by which A created the power.126 So, in the Irish case of Murphy v Deichler,127 the donor, an Irishman, gave in his will a power of appointment to his Freme v Clement (1881) 18 Ch D 499 at 504. Re Blyth [1997] 2 Qd R 567 at 571–2. See 22.19–22.21 and 22.36–22.37. Vic s 17(2)(d), (3). ACT s 15D(2); NSW s 48(3); NT s 46(5); Qld s 33T(2)(c); SA s 25C(d); Tas s 60(2)(d); Vic s 17(2)(d); WA s 20(2)(d); see Kennion v Buchan’s Trustees (1880) 7 R 570. 127. [1909] AC 446. 122. 123. 124. 125. 126.

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daughter. She was domiciled in Germany at all relevant times, and attempted to exercise the power of appointment by a will and codicil executed in Germany. Her will and codicil were valid under Irish law, but not under German law. The House of Lords held that the exercise of the power of appointment was valid, as it complied with the formalities of Irish law. 22.51  It should be emphasised that compliance with formalities imposed by the law applicable to the instrument creating the power is sufficient, but not necessary. In the alternative, the exercise of the power merely need satisfy the formalities required by the law governing the formal validity of the donee B’s will.

Capacity 22.52  There are two possible approaches to the question whether the donee of a power of appointment has the legal capacity to exercise it, although authority on the point is scarce. The first is that the donee will be recognised in Australia as having capacity to exercise a power over immovables if the donee is taken to have capacity under the law of the place where the property is situate. Similarly, the donee will be recognised as having the capacity to exercise a power over movables if the donee has capacity under the law of the place where the donee was domiciled. In the latter case, Re Lewal’s Settlement Trusts128 seems to support the use of the law of domicile at the time the donee’s will was made. The alternative approach is that the donee, B, will also be recognised as having capacity to exercise the power if B is taken to have capacity under the law that governs the will or settlement by which the donor A created the power. There is no authority to support this approach, but English scholars have developed it from first principles. Here, the distinction between a general and a special power becomes important because the rule may only apply to a special power. Since in creating a special power the donor A is indicating to B the range of persons who qualify as appointees, B is seen in some sense as A’s agent. It is therefore appropriate to use the law governing the instrument by which A created the power and ‘agency’ to determine whether B had the capacity to exercise the power. However, because, in a general power, B can appoint to any person (even to themself), B is able to treat the property much like their own property. It is more difficult in the case of a general power to draw the analogy with an agency. So, in the case of a general power of appointment, it is less appropriate to determine B’s capacity by reference to the law governing the will or settlement by which A created the power.

Essential validity 22.53  The essential validity of a power of appointment involves such issues as whether it is possible to create a power at all, whether some property can be the subject of a power of appointment, or whether others have to consent to the creation or exercise of a power. It is clear that questions concerning the essential validity of a general power of appointment relating to immovable property are determined by the law of the place where the property is situate.129 The rule for special powers of appointment over immovables is probably the 128. [1918] 2 Ch 391 at 398. 129. Re Hernando (1884) 27 Ch D 284; Murray v Champernowne [1901] 2 IR 232 at 236–7.

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same. However, when considering powers of appointment over movable property there is more variation. The essential validity of a general power is a question that seems to turn on the interpretation of the will by which the donee B exercised the power.130 If it appears from B’s will that B has treated the property as B’s own, then there are good reasons for dealing with the property on the same terms as the other dispositions under the will. Therefore, the question is determined by the law of the place where the donee B was domiciled at death.131 But if it appears from B’s will that B has treated the property over which the power is exercised as separate and distinct from the other dispositions in the will, then it is possible to regard B as having acted as the donor A’s agent in the exercise of the power. The essential validity of the exercise of the power is thus determined by the law governing the essential validity of the will or settlement by which A created the power.132 The problem in making a legal distinction on the basis of B’s attitude to the ownership of the property is that this might not be evident from the terms of B’s will. Nevertheless, similar reasoning applies to the exercise of a special power of appointment relating to movables, the essential validity of which is also determined by the law governing the instrument by which it was created.133

Interpretation 22.54  The choice of law rules by which questions of the interpretation of a will are determined apply equally to the interpretation of a power of appointment exercised in the will. Therefore, whether the power relates to immovables or movables, it is principally to be interpreted by reference to the law intended by donee B. This is presumed to be the law of the place where B was domiciled at the time the will was made, in the absence of evidence to the contrary.134 There is one exception to this rule. Under the donee’s will, questions of interpretation generally might fall to be determined by the law of a place that does not recognise the existence of powers of appointment. In such a case, it is permissible to interpret the exercise of the power by reference to the law of the forum state or territory.135

Revocation 22.55  The choice of law rules that apply to determine whether a will has been effectively revoked are also applicable in determining whether the exercise of a power of appointment by will has been revoked.136

130. Re Pryce [1911] 2 Ch 286 at 295. 131. Re Pryce [1911] 2 Ch 286; Re Khan’s Settlement [1966] Ch 567; Re Fenston’s Settlement [1971] 3 All ER 1092 at 1098. 132. Re Mégret [1901] 1 Ch 547. 133. Povey v Hordern [1900] 1 Ch 492. 134. Re McMorran [1958] Ch 624; Durie’s Trustees v Osborne [1960] SC 444; see also 22.25 and 22.42. 135. Re Lewal’s Settlement [1918] 2 Ch 391; Re Fenston’s Settlement [1971] 3 All ER 1092. 136. See 22.30–22.33 and 22.44–22.47.

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Reform 22.56  Any reform of the private international law of succession must address the principle of scission, which is the main cause of complexity in this area. The Hague Convention on Law Applicable to Succession 1988 adopts the idea of a single law applicable to all questions of succession, this being either the law of nationality or habitual residence.137 While the Australian Law Reform Commission also recommends the use of one law for all questions of succession,138 it prefers that these centre on domicile. Therefore, the law of the place where the deceased was domiciled at death would determine most questions of succession to property on death. The exceptions would be for questions of formal validity, where the current choice of law rules would be maintained; questions of interpretation, which would in general be determined by the law of the place where the deceased was domiciled at the time the will was made; questions of revocation by marriage or divorce, which would be determined by the law of the place where the deceased was domiciled at the time of the marriage; and questions of capacity, where the common law rules would still apply. It is unfortunate that the commission failed to deal properly with the question of capacity, given the longstanding uncertainty that has existed in the rules relating to capacity to dispose of movables. The general reliance on domicile is also questionable, and doubts must be entertained as to whether it should be preferred to the Hague Convention’s use of habitual residence. Unlike habitual residence, domicile carries a mental link with a particular law area. There is certainly much in succession law that depends on the testator’s intentions, and therefore reference to a legal system with which the testator has some mental association might seem more appropriate than one — like habitual residence — based solely on physical connections with a place. But domicile remains in many respects an artifice, and still depends on technical connections with a place that habitual residence avoids completely.139 At the least, habitual residence is more likely than domicile to identify the place that, according to more objective criteria, represents the centre of a person’s personal and proprietary interests.

137. Convention on the Law Applicable to Succession to the Estates of Deceased Persons, 1 August 1989, Hague, No 32. 138. Australian Law Reform Commission, Choice of Law, Report No 58, Canberra, AGPS, 1992, [9.7]–[9.8]. 139. See 10.62–10.70.

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PART 7 International Company Law

Chapter 23 International Company Law Introduction 23.1  In general, cross-border questions in Australia concerning companies — or, rather, corporations — are dealt with under federal law, specifically the Corporations Act  2001 (Cth) and the Foreign Corporations (Application of Laws) Act 1989 (Cth). Little explanation is needed to justify the Commonwealth’s power to pass the Application of Laws Act. It is squarely within its corporations power,1 which expressly nominates ‘foreign corporations’ as a potential subject of federal legislation. However, the Commonwealth does not have a general power to legislate for companies and has had to receive a referral of power from the states to justify the passage of the Corporations Act. Until 2001, legislation for the incorporation, regulation and liquidation of companies was maintained by the states and territories, even if, in its later forms, this legislation was in uniform terms across the country. The cross-vesting scheme nevertheless allowed the Federal Court of Australia to hear applications relating to companies under the state legislation.2 After the High Court’s decisions in Gould v Brown3 and Re Wakim: Ex parte McNally,4 it became clear that companies’ matters could not be brought in any federal court while they were matters of state jurisdiction. If the Federal Court of Australia was still to hear companies’ matters, the only possible cure for the limitations on its jurisdiction was for companies to be regulated by Commonwealth legislation. As a result, the states referred power over corporations to the Commonwealth in 2001.5 This referral was for a limited period of five years, but the legislation provides for an extension of the grant by proclamation.6 The referral has been extended three times, and is now due to expire on 15 July 2021. The Commonwealth has a plenary power to legislate for corporations matters in the federal territories.7

1. 2. 3. 4. 5.

6.

7.

Constitution (Cth) s 51(xx). See 2.28–2.30. (1998) 193 CLR 346; [1998] HCA 6. (1999) 198 CLR 511; [1999] HCA 27. Corporations (Commonwealth Powers) Act  2001 (NSW) s  4; Corporations (Commonwealth Powers) Act 2001 (Qld) s 4; Corporations (Commonwealth Powers) Act 2001 (SA) s 4; Corporations (Commonwealth Powers) Act  2001 (Tas) s  4; Corporations (Commonwealth Powers) Act  2001 (Vic) s  4; Corporations (Commonwealth Powers) Act 2001 (WA) s 4. Corporations (Commonwealth Powers) Act 2001 (NSW) ss 5–6; Corporations (Commonwealth Powers) Act  2001 (Qld) ss  5–6; Corporations (Commonwealth Powers) Act  2001 (SA) ss  5–6; Corporations (Commonwealth Powers) Act  2001 (Tas) ss  5–6; Corporations (Commonwealth Powers) Act  2001 (Vic) ss 5–6; Corporations (Commonwealth Powers) Act 2001 (WA) ss 5–6. Constitution (Cth) s 122.

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23.2  Applications relating to companies’ matters generally fall within the principles of civil jurisdiction, although the discretion to transfer the application to another court in Australia arises under the Corporations Act, and different considerations might possibly arise in proceedings for the stay or dismissal of the application. Companies also present some complications for the recognition and enforcement of judgments, and there are some unique rules relating to New Zealand corporations orders. Accordingly, this chapter deals with aspects of all three ‘issues’ of private international law so far as they relate to companies’ applications: jurisdiction, choice of law, and the recognition and enforcement of foreign company orders. 23.3  Furthermore, this chapter is limited to legal questions that are internal to the management and structure of corporations. As incorporation gives a company the status of a legal person, a corporation’s relations with third parties are dealt with in precisely the same terms as any natural individual’s relations with third parties. Therefore, when a question involves a corporation’s rights or liabilities under contract, tort or property law, it is dealt with under the general principles of contract, tort or property law. Also, in cross-border claims, any jurisdictional, choice of law or enforcement issues that arise in relation to the company’s external legal relations do not differentiate between corporations and individuals. This chapter is therefore limited to questions that are ‘internal’ to the corporation: its existence, its legal capacities, its legal powers, the rights and liabilities of its members, the authority of its officers, and the liability and duties of its officers (including all aspects relating to internal management and corporate governance). This chapter does not deal with the insolvency and liquidation (or ‘winding-up’) of corporations; these are topics that are intimately entwined with questions of personal bankruptcy.

Jurisdiction The power to exercise jurisdiction 23.4  In matters that arise under the Corporations Act,8 a court’s jurisdiction over a person or a business is established in accordance with the normal principles of personal jurisdiction over individuals or corporate bodies that are set out in Chapter  2.9 If the proceedings that arise under the Corporations Act are brought against a company, the company must have some presence inside the forum’s territorial bounds to be properly subject to the jurisdiction of the forum court. At common law, a company is considered to be present in a place and within the jurisdiction of its courts if it carries on business there. If the company is incorporated within Australia, it will have a registered office in Australia.10 For foreign companies doing business in Australia, the Corporations Act requires that they be registered with the Australian Securities and Investments Commission (ASIC) and have a registered office and local agent in Australia.11 Every foreign company must nominate a 8. 9. 10. 11.

Or any matters that arise under the Australian Securities and Investments Commission Act 2001 (Cth), or any rules of court made under the Corporations Act: Corporations Act 2001 (Cth) s 9. See 2.11–2.12. Corporations Act 2001 (Cth) s 117(2)(g). Corporations Act 2001 (Cth) ss 601CD–601CF.

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23.7

state or territory for registration, even though the Corporations Act is federal legislation.12 These registration requirements ease the ability to serve a company with initiating process in Australia, as effective service is deemed to have taken place by sending the initiating process to the company’s registered office or, if it is a foreign company, to the local agent or registered office.13 It is nevertheless possible that process may have to be served on a foreign corporation that, in violation of the Corporations Act, has not been registered properly with ASIC. In that case, the presence of a foreign company within Australia would have to be established in accordance with the principles of the common law. 23.5  New Zealand  corporations are subject to the same registration requirements as other foreign corporations, but are exempt from lodging some financial documents with ASIC.14 Under the Trans-Tasman Proceedings Act  2010 (Cth), Australian courts have territorial jurisdiction over companies located in New Zealand. In this case, service of any initiating process from an Australian court against the company requires that the common law rules determine whether or not the company is present in New Zealand. There is no special provision in the Trans-Tasman Proceedings Act allowing service of a company incorporated in New Zealand in similar terms to the provisions for service of companies registered in Australia under the Corporations Act. 23.6  In some superior courts, there are rules for the service of initiating process on any person outside Australia and New Zealand in different kinds of proceedings relating to corporations. In the Australian Capital Territory Supreme Court, service may be made overseas when the proceedings affect membership or office-holding in a corporation that is incorporated, registered or doing business in the territory.15 In the Supreme Courts of New South Wales, South Australia, Tasmania and Victoria, the rules allow service without leave when a claim affects the person to be served in relation to that person’s membership in a company incorporated anywhere in Australia.16 In Queensland, a person can be served where the proceedings relate to that person’s membership in a company incorporated in the relevant state or territory.17 The Federal Court and High Court have a similar rule where the question of membership arises in relation to any company incorporated in Australia.18 The federal rules also allow service of process overseas on any company incorporated, registered or doing business in Australia.19

Courts 23.7  Almost every Australian court — the exception is the Federal Circuit Court — has jurisdiction in civil matters arising under the Corporations Act.20 To the extent that the inferior court of a state or territory can hear matters under the Corporations Act, any limits 12. 13. 14. 15. 16. 17. 18. 19. 20.

Corporations Act 2001 (Cth) s 119A. Corporations Act 2001 (Cth) s 109X; see also Service and Execution of Process Act 1992 (Cth) s 9. Corporations Act 2001 (Cth) ss 601CDA–601CF; Corporations Regulations 2001 (Cth) r 5B.2.05. Court Procedures Rules 2006 (ACT) r 6502(o). Uniform Civil Procedure Rules 2005 (NSW) Sch 6(o); Supreme Court Civil Rules 2006 (SA) r 40A(o); Supreme Court Rules 2000 (Tas) r 147A(o); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 7.02(o). Uniform Civil Procedure Rules 1999 (Qld) r 124(1)(m). Federal Court Rules 2011 (Cth) r 10.42, item 8; High Court Rules 2004 (Cth) r 9.07. Federal Court Rules 2011 (Cth) r 10.24, item 18(b); High Court Rules 2004 (Cth) r 9.07. Corporations Act 2001 (Cth) ss 1337B–1337E.

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on the court’s jurisdiction over the sum claimed or the value of property involved are still applicable.21 In general, civil matters relating to the internal legal relations of corporations are raised in the state and territory Supreme Courts and the Federal Court of Australia. Given the pervasive role of principles of equity in the internal management of corporations, the general equitable jurisdiction exercised by those courts is often an important supplement to their jurisdiction over any claims made under the Corporations Act.

Restraints on companies’ proceedings within Australia 23.8  The Corporations Act has provisions that closely parallel those in the Crossvesting Acts for the transfer of proceedings between courts.22 However, the transfer provisions of the Corporations Act differ from the Cross-vesting Acts in three respects. First, when passed in 2001 the Corporations Act had the benefit of the insights that Bankinvest AG v Seabrook23 had brought to courts’ understanding of the conditions for ordering a transfer; namely, that once the ‘interests of justice’ criterion for a transfer is satisfied there is no need to make any other enquiry, and that the ‘interests of justice’ are understood in terms of the principles of forum non conveniens as spelt out in Spiliada Maritime Corp v  Cansulex Ltd.24 As a result, in the superior courts a transfer is made in a Corporations Act matter when ‘having regard to the interests of justice, it is more appropriate’ for that matter to be determined in another court that can exercise the required jurisdiction.25 The second difference is that there are circumstances where a state or territory Supreme Court or a Family Court has no discretion, and instead it is required to transfer proceedings to the Federal Court. This must happen if the proceedings are for judicial review of a decision made by the Commonwealth authority — such as ASIC — or by a Commonwealth officer.26 Although the state and territory Supreme Courts, the Family Court of Australia and the Family Court of Western Australia have jurisdiction in these questions,27 it is thought best that the Federal Court have the responsibility of reviewing the decisions of the federal executive. 23.9  The third difference in relation to the transfer of proceedings is that, under the Corporations Act, it is possible to transfer proceedings directly between inferior state and territory courts. If there is a Corporations Act matter in an inferior court, and that court considers that ‘having regard to the interests of justice, it is more appropriate for’ another inferior state or territory court to deal with the matter, then the proceedings may be transferred directly to the second inferior court.28 On the other hand, if it seems that the more appropriate court to deal with the matter is the Supreme Court of another state or territory, or the Federal Court of Australia, then the inferior court must instead transfer the 21. 22. 23. 24. 25. 26. 27. 28.

Corporations Act 2001 (Cth) s 1337E(2). Re Clivpee Ltd (in admin) [2010] NSWSC 1215 at [3]; see 4.59–4.74. (1988) 14 NSWLR 711; see 4.61 and 4.64–4.66. [1987] AC 460; see 4.34–4.37. Corporations Act 2001 (Cth) ss 1337H(1)–(2), 1337J(1)–(2); Efax Pty Ltd v Sonray Capital Markets Pty Ltd (in liq) (2011) 84 ACSR 195; [2011] NSWSC 554. Corporations Act 2001 (Cth) ss 1337H(3), 1337J(3). Corporations Act 2001 (Cth) ss 1337B(3), 1337C. Corporations Act 2001 (Cth) s 1337K(1)–(3).

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proceedings to the Supreme Court in its own hierarchy, and recommend to the Supreme Court that the proceedings be transferred to another superior court. Once the Supreme Court gets those proceedings, it can transfer to another superior court in accordance with the recommendation made, — or it can deal with the matter itself, transfer to a third superior court or even return the matter to the inferior court where it began.29

Restraints on trans-Tasman companies’ proceedings 23.10  Under the Trans-Tasman Proceedings Act, an Australian court may stay any proceedings concerning the internal legal relations of a company if it appears that a New Zealand court would be the more appropriate court to deal with them.30 In other words, companies’ proceedings fall under the general principles that are applicable to questions of trans-Tasman jurisdiction. However, in Re Douglas Webber Events Pty Ltd,31 which was an application before the New South Wales Supreme Court for a stay under the Trans-Tasman Proceedings Act, Brereton J considered that a range of matters under the Corporations Act 2001 (Cth) could not be subject to an order for a stay.32 The Corporations Act expressly invested the power to make orders in these companies’ matters in Australian superior courts, which meant that a foreign court could not hear them. A New Zealand court would not be able to grant the relief allowed in these matters, and so would not have the jurisdiction to deal with them.33

Restraints on companies’ proceedings in international cases 23.11  The usual principles of forum non conveniens as governed by Voth v Manildra Flour Mills Pty Ltd34 apply to proceedings before Australian courts that relate to the internal legal relations of companies. As a result, courts will refer to Voth criteria such as the availability of witnesses, the places where the parties reside and carry on business, the governing law, and any legitimate juridical advantage available to either party by continuing in the Australian court. However, there are also suggestions in the scholarly literature that common law courts are reluctant to deal with disputes concerning the internal management of companies incorporated in foreign countries.35 It is difficult to classify this ‘reluctance’ within one of the traditional structures of jurisdiction or choice of law. In practical terms, whether this is a jurisdictional or choice of law question may not matter as questions of the law of the cause often arise in applications for a stay or dismissal of proceedings made on the ground of forum non conveniens. The question then is whether this reluctance could be treated as a 29. 30. 31. 32. 33. 34. 35.

Corporations Act 2001 (Cth) s 1337K(4)–(5). Trans-Tasman Proceedings Act 2010 (Cth) s 19; see 4.55–4.57. (2014) 291 FLR 173; [2014] NSWSC 1544. These were matters arising under Corporations Act 2001 (Cth) ss 232–233, 237 and 1317H. (2014) 291 FLR 173 at [34], [38]; [2014] NSWSC 1544 at [34], [38]. (1990) 171 CLR 538; see 4.39–4.47. L Collins, Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012, pp 1542–3; M Tilbury, G Davis and B Opeskin, Conflict of Laws in Australia, Oxford University Press, Melbourne, 2002, p 472; M J Whincop, ‘Conflicts in the Cathedral: Towards a Theory of Property Rights in Private International Law’ (2000) 50 University of Tasmania Law Journal 41 at 54; S Rammeloo, Corporations in Private International Law, Oxford University Press, Oxford, 2001, p 138.

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criterion relevant to the forum non conveniens inquiry.36 Some of the older cases in which this reluctance was expressed were also dealt with under principles that were precursors to the modern plea of forum non conveniens, and so the reluctance could well be relevant to a court’s determination that it is a clearly inappropriate forum for the dispute in question. 23.12 In Mills v  Mills,37 a suit for breach of fiduciary duty was brought in the Supreme Court of Victoria against the directors of a company incorporated in New South Wales. The allegation, which is sometimes made in modern companies’ proceedings for oppression,38 was that the directors had not acted in the interests of the company as a whole in making a resolution that had the effect of increasing the share voting power of one of the directors of the company. The proceedings failed, but in the High Court Dixon J thought that the ‘first question which naturally suggests itself is whether the Supreme Court of Victoria can and ought so to interfere in the internal management of a “foreign corporation” and to pass on the validity of the issue or allotment of part of its share capital’.39 Referring to American authority of similar effect, he said ‘that there was a good deal to be said against the Supreme Court of Victoria exerting an authority to declare invalid the steps taken by the directors of the New South Wales  company now in question to issue further capital and to capitalize profits to answer the liability on the shares’.40 However, as the question was not raised by either party to the proceedings in Mills, Dixon J was ultimately prepared to deal with the merits of the allegation of breach of fiduciary duty. The other judges in Mills did not refer to the point. 23.13  The only other reported authorities outside the United States to support this ‘reluctance’ are Adamson’s Executors v  McTaggart,41 Sudlow v  Dutch Rhenish Railway42 and Re Schintz; Schintz v Warr.43 The Scottish case of Adamson is direct authority for the relevance of a business’s location in another jurisdiction to the plea of forum non conveniens. Lord Low held that the Court of Session was ‘not a forum conveniens for the trial of the present action’, on the ground that the business was located in India.44 However, Adamson was decided under Scots principles of forum non conveniens, which are more deferent to foreign courts’ claims on the exercise of jurisdiction than the Voth principles are. In Mills, Dixon J thought that Sudlow was a ‘not very solid foundation’.45 Re Schintz; Schintz v Warr46 was a suit for breach of trust brought in England in relation to the resolution of the board of a French company, by which part of the company’s reserve fund was capitalised to the plaintiff ’s detriment. Two of the directors lived in England, and one in  France, and the 36.

37. 38. 39. 40. 41. 42. 43. 44. 45. 46.

As is the American practice: see of American Law Institute, Restatement of the Law, Second: Conflict Laws, St Paul, Minneosota, 1971 I, p 252–3; E F Scoles, P Hay, P J Borchers and S C Symeonides, Conflict of Laws, 5th ed, West Publishing Co, St Paul, 2010, pp 1405–6. (1938) 60 CLR 150. Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285; Dynasty Ptd Ltd v Coombs (1995) 13 ACLC 1290; Gray Eisdell Timms Pty Ltd v Combined Auctions Pty Ltd (1995) 17 ACSR 303. (1938) 60 CLR 150 at 181. At 182. (1893) 20 R 738. (1855) 21 Beav 43; 52 ER 724. [1926] 1 Ch 711. (1893) 20 R 738 at 740. (1938) 60 CLR 150 at 181. [1926] 1 Ch 711.

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plaintiff sought to join the French company as a ‘necessary and proper party’ to the proceeding. The Court of Appeal ruled that the French company was not a necessary or proper party to the suit for breach of trust, and refused leave to have the company served with the English writ in France. Two reasons suggested this result. First, the French company was not needed as a party to resolve the question of breach of trust.47 Second, the English court was not in the circumstances a forum conveniens for the trial of the action.48 The English court’s refusal to give leave to serve on this ground stemmed mainly from the particular terms of the French company’s articles of association, which included a forum clause referring disputes to the Tribunal de Commerce at Douai. Lord Hanworth MR regarded this as ‘of great importance’, and Warrington LJ agreed that this meant that disputes internal to the company were to be handled by the Douai court.49 Indeed, Warrington LJ thought that the forum clause in the articles made the Douai court alone the forum conveniens, and that French courts in general would not necessarily be preferred to English.50 Schintz therefore does not seem to be authority for the general reluctance to intervene in the affairs of a foreign company that Dixon J espoused in Mills. There is, however, ample American authority for treating questions of internal management as one of the factors weighing against the exercise of jurisdiction by a court under principles of forum non conveniens.51 23.14  If there is a principle of judicial reluctance to deal with the internal management of a foreign company, it does not require the courts to refrain from dealing with that question. Mills is itself an example where the High Court did deal with such a question, and there are older cases where English courts have interfered in the management of foreign companies.52 In recognising that an Australian court is to apply the law of the place of incorporation to a question concerning the internal management of a foreign corporation, the Foreign Corporations (Application of Laws) Act 1989 (Cth) implicitly assumes that an Australian court need not decline jurisdiction to deal with the question.

Choice of law 23.15  The choice of law rules for questions of company law rely on both the Foreign Corporations (Application of Laws) Acts 1989, and the general law. The Application of Laws Act was passed after a Federal Government inquiry into foreign companies doing business in Australia, and partly to encourage foreign investment — especially investment from Taiwan. The Act applies only to questions involving a ‘foreign corporation’,53 which is defined as ‘a body or person incorporated in a place outside Australia’.54 It also only applies ‘in relation to the determination of a question arising under Australian law … where it is 47. 48. 49. 50. 51. 52. 53. 54.

At 719, 721, 724. At 720–1, 725. At 720, 725. At 725. American Law Institute, Restatement of the Law, Second: Conflict of Laws, St Paul, Minnesota, 1971, II, pp 346–51; Scoles, Hay, Borchers and Symeonides, above n 33, pp 1405–6. Lewis v Baldwin (1848) 11 Beav 153; 50 ER 775; Pickering v Stephenson (1872) LR 14 Eq 322 at 340–2. Foreign Corporations (Application of Laws) Act 1989 (Cth) s 7. Foreign Corporations (Application of Laws) Act 1989 (Cth) s 3.

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necessary to determine the question by reference to a system of law other than Australian law’.55 This condition is somewhat circular in its expression, but in Nicholls v  Michael Wilson Partners56 Lindgren AJA held that this condition was not satisfied in proceedings that did not involve the defendant’s position as an officer of the company57 — although how this issue related specifically to ‘necessary to determine … by reference to’ a foreign law is unclear. If the Application of Laws Act does apply, however, it gives prominence to the law of the place of incorporation as the governing law for the companies’ issues that it covers.58 Nevertheless, the limited coverage of the Application of Laws Act means that the general law still governs issues concerning foreign companies that are not mentioned in the Act, and questions involving Australian companies. And although the application of the Corporations Act throughout Australia makes the possibility of a conflict of company laws within Australia remote, potential differences still exist between the laws of the states and territories in questions like corporate governance. Accordingly, the choice of law rules under the Application of Laws Act and the general law are considered in this section. 23.16  The Application of Laws Act generally refers questions relating to companies to the law of the place of incorporation.59 This also predominates as the law of the cause under the general law. The place of incorporation is often described in the case law as the place of the corporation’s domicile, even though the usual elements for domicile of animus manendi and factum are irrelevant to the determination of the place of incorporation.60 Furthermore, the corporation’s domicile will be identified without reference to the personal domiciles of its members61 — even where there is only one person holding shares in the corporation. For the purposes of the Application of Laws Act, the court’s application of the law of a given place where a company was incorporated is not affected by the Australian Government’s recognition of that place as a legitimate foreign state or government.62 This feature of the Application of Laws Act was one of the principal reasons for its passage. There were concerns as to what laws would apply if Taiwanese corporations were the subject of companies’ applications in Australia, given that the Australian Government’s one-China policy precludes diplomatic recognition of Taiwan.63 The result is that the usual general law principles relating to the application of a law made in an unrecognised state are inapplicable when the Application of Laws Act provides the choice of law rule. Still, in companies’ matters that are subject to the application of choice of law rules originating in the general law, it would be expected that the usual principles relating to laws made in unrecognised states would apply. This means there would be some lingering possibility — although it should be 55. 56. 57. 58. 59. 60. 61. 62. 63.

Foreign Corporations (Application of Laws) Act 1989 (Cth) s 7(1). (2010) 243 FLR 177; [2010] NSWCA 222. At [356]–[357]. Foreign Corporations (Application of Laws) Act 1989 (Cth) s 7. Foreign Corporations (Application of Laws) Act 1989 (Cth) s 7. See 10.23. Princess Reuss v Bos (1871) LR 5 HL 176. Foreign Corporations (Application of Laws) Act 1989 (Cth) s 8(1). Similar measures were later adopted in the United Kingdom: see  Foreign Corporations Act  1991 (UK); G Marston, ‘United Kingdom Materials on International Law 1991’ (1991) 62 British Yearbook of International Law 535 at 565–8; S Talmon, ‘Recognition of Governments: An Analysis of the New British Policy and Practice’ (1992) 63 British Yearbook of International Law 231 at 292–6.

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put no higher than a possibility — that the Australian Government’s failure to recognise the state could mean that the law of the place of incorporation might not be applied.64

The validity of incorporation 23.17  For matters falling under the Application of Laws Act, any question relating to the validity of the incorporation of a body or person in a given place is ‘determined by reference to the law applied by the people in that place’.65 The position is the same under the general law.66 The strength of this principle was illustrated by the strange circumstances of Bumper Development Corp v Commissioner of Police for the Metropolis,67 where the English Court of Appeal recognised as a legal person an Indian temple which Purchas LJ described as ‘something which on one view is little more than a pile of stones’.68 This was even though there was no natural person who could be ultimately traced as its owner, and that English internal law only recognises ‘personified groups or series of individuals’ as corporate persons.69 The important factor was that the law of India recognised that the temple was a legal person. 23.18  The other side of this principle is that, if the company was dissolved or is no longer recognised in the place where it had formerly been incorporated, its validity will not usually be recognised in Australia.70 Unqualified adherence to this principle could be problematic, especially where the interests of Australian creditors have been affected by the loss of corporate status under the relevant foreign law. In cases like this, the Corporations Act itself salvages the position of creditors, and provides that a company that has already been liquidated or ceased to exist in the place of its incorporation may nevertheless be wound up by separate proceedings in Australia.71

Capacity and powers 23.19  The Application of Laws Act provides that a question relating to the legal capacity and powers of a company is to be determined in accordance with the law of the place where it was incorporated.72 Again, the position is the same under the general law. As a result, if the place of incorporation recognises restrictions on the company’s power to enter contracts, those restrictions should be capable of being enforced within Australia. If the foreign law recognises that the company has all of the powers of an individual, then the company will enjoy the same powers within Australia.73 64. 65. 66.

67. 68. 69. 70. 71. 72. 73.

See 8.37–8.38. Foreign Corporations (Application of Laws) Act 1989 (Cth) s 7(2). See also s 7(3)(a). Lazard Brothers & Co v  Midland Bank Ltd [1933] AC 289 at 297; Global Container Lines Ltd v  Bonyad Shipping Co [1999] 1 Lloyd’s Rep 287; McIntyre v Eastern Prosperity Investments Pte Ltd (No 6) (2005) 218 ALR 401; [2005] FCA 155. [1991] 1 WLR 1362. At 1371. At 1371, 1373. Lazard Brothers & Co v Midland Bank Ltd [1933] AC 289 at 297. Corporations Act 2001 (Cth) s 582(3). Foreign Corporations (Application of Laws) Act 1989 (Cth) s 7(3)(a). Bateman v Service (1881) 6 App Cas 386; Picturesque Atlas Publishing Co v Campbell (1891) 24 SALR 145.

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Private International Law in Australia

Members’ rights and liabilities 23.20  Once more, the Application of Laws Act provides that any question concerning the membership of a foreign corporation, or any question of the rights and liabilities of its members, is one to be determined in accordance with the law of the place of incorporation.74 The general law again proceeds along the same lines. Courts have held that the law of the place where the company was incorporated determines any question of a member’s liability for corporate debts.75 23.21  Questions have arisen as to whether members are entitled to bring a derivative action on behalf of the company for any breach of duty owed by its officers to the company. The general principle of company law is that members do not have this right; if a wrong is done to the company, the company must sue. The general trend in Australia has been to treat questions concerning the right to bring a derivative action as one of procedure, and therefore governed by the law of the forum. These decisions post-date the High Court’s decision in John Pfeiffer Pty Ltd v  Rogerson,76 but, arguably, do not apply the narrower definition of procedural law stated in that case, which limits procedure to matters concerning the mode or conduct of court proceedings.77 As a consequence of these decisions, the Application of Laws Act would not govern the issue. The courts are simply not classifying derivative actions as questions concerning the substantive rights of members. Note, however, that a substantive classification has been taken both in England and the United States of the availability and right to a derivative action,78 although the requirement to obtain leave of the court to commence such a proceeding has been held to be procedural.79

Internal management 23.22  Under the Application of Laws Act, questions of the internal management of a company are also to be determined by the law of the place of its incorporation.80 The general law also provides that a range of issues, which generally implicate the internal management of the company, are determined by the law of the place of its incorporation. These include the validity of the appointment of the company’s officers,81 and the power of officers to 74.

75. 76. 77.

78. 79.

80. 81.

Foreign Corporations (Application of Laws) Act  1989 (Cth) s  7(3)(b), (e). Compatible with this is the principle that a foreign corporation that issues shares to Australian residents is not for that reason involved in the raising of capital in Australia: Australian Securities and Investments Commission v Cycclone Magnetic Engines Inc (2009) 71 ACSR 1; [2009] QSC 058. Risdon Iron and Locomotive Works v Furness [1906] 1 KB 49; JH Rayner (Mincing Lane) Ltd v Dept of Trade and Industry [1990] 2 AC 418; Sierra Leone Telecommunications Co Ltd v Barclays Bank plc [1998] 2 All ER 821. (2000) 203 CLR 503; [2000] HCA 36; see 7.24–7.28. Ebbage v Manthey [2001] QSC 004; Virgtel Ltd v Zabusky [2006] 2 Qd R 81; [2006] QSC 066; but compare Oates v  Consolidated Capital Services Ltd (2008) 66 ACSR 277; [2008] NSWSC 464 (classification of derivative action left open). Konamaneni v Rolls Royce Industrial Power (India) Ltd [2002] 1 WLR 1269 (Ch); Hausman v Buckley 299 F 2d 696 (2nd Cir 1962). Harding v  Wealands [2005] 1 WLR 1539 at [62] (rev’d on other grounds: [2007] 2 AC 1); see, generally, R  Garnett, Substance and Procedure in Private International Law, Oxford University Press, Oxford, 2012, at 133–9. Foreign Corporations (Application of Laws) Act 1989 (Cth) s 7(3)(g). Sierra Leone Telecommunications Co Ltd v Barclays Bank plc [1998] 2 All ER 821.

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International Company Law

23.22

act on the company’s behalf. Similarly, the nature of an officer’s duties to a company has generally been regarded as a question for the law of the place of its incorporation.83 However, the duties of officers — especially directors — are often fiduciary in character and the law of the cause in questions that arise in equitable jurisdiction is often the law of the forum. In Paramasivam v Flynn,84 the Full Court of the Federal Court held that proceedings for breach of fiduciary duty are generally governed by the law of the forum, although the foreign elements in the proceedings can be taken into account as data when determining whether the local standards of conscience have in fact been violated by the conduct in question. After alluding to different principles for some equitable claims, Miles, Lehane and Weinberg JJ said:85 82

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.

However, in Paramasivam the Full Court noted circumstances where some law other than the law of the forum might be more appropriately applied. These circumstances included claims based on an express trust,86 and claims based on a fiduciary relationship established by contract.87 The Full Court also said that ‘particular considerations may arise where what is in question is the duty owed to a foreign corporation by its directors or officers’, but held that ‘such matters do not arise here and it is unnecessary for us to form any view about them’.88 Accordingly, Paramasivam stands as highly persuasive authority for the view that a claim for breach of fiduciary duty against the directors of a foreign company might usually be governed by the law of the forum but in some cases might be displaced by some other law — presumably the law of the place of incorporation. This seems contrary to the emphasis given to the corporate domicile in the English cases. For foreign companies, it would seem that the Application of Laws Act would nevertheless require application of the law of the place of incorporation. In rare cases where the conflict is between the laws

82. 83.

84. 85. 86. 87.

88.

Banco de Bilbao v Sancha and Rey [1938] 2 KB 176; Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 919, 939, 972. Pergamon Press Ltd v  Maxwell [1970] 1 WLR 1167 at 1172; Konamaneni v  Rolls-Royce Industrial Power (India) Ltd (2002) 1 WLR 1269; Base Metal Trading Ltd v  Shamurin [2005] 1 WLR 1157 at [65]–[69]; AS Latvijas Krajbanka v Antonov [2016] EWHC 1679 (Comm) at [8]; O’Keefe and Beveridge (In Their Capacity As Joint Liquidators of Level One Residential (Jersey) Ltd and Special Opportunity Holdings Ltd) v  Caner [2017] EWHC 1105 (Ch) at [9]. (1998) 90 FCR 489. See also 19.13. At 503. At 502; Augustus v Permanent Trustee Co (Canberra) Ltd (1971) 124 CLR 245. (1998) 90 FCR 489 at 503; United States Surgical Corp v  Hospital Products International Pty Ltd [1982] 2 NSWLR 766 at 796–9; [1983] 2 NSWLR 157 at 192; (1984) 156 CLR 41. However, cf (1984) 156 CLR 41 at 88 per Mason J, at 137 per Dawson J. (1998) 90 FCR 489 at 503.

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of different Australian states and territories, Paramasivam’s preference for the law of the forum would also have to be considered.89 23.23  These issues are related to the jurisdictional consideration discussed earlier; whether an Australian court should decline to hear a matter concerning the internal management of a foreign company and defer to the jurisdiction of the courts of the place of incorporation.90 Either way, apart from the obiter dictum in Paramasivam, the choice of law rules show a strong preference for the law of the place of incorporation to deal with questions of internal management.

Recognition and enforcement of foreign companies’ orders 23.24  The general principles and rules relating to the recognition and enforcement of foreign judgments apply also to judgments or orders made in relation to corporations matters. So, if the court that rendered the judgment or order is listed in regulations made under the Foreign Judgments Act  1991 (Cth), the judgment or order will only be enforceable if satisfying the conditions of the Act. If the foreign court is not listed in the Foreign Judgments Regulations 1992 (Cth), the judgment or order will only be enforceable if meeting the requirements of the common law.91 As has been seen, in Australian private international law companies’ matters tend to centre on the law of the place of incorporation. There is potentially a reluctance on the part of Australian courts to exercise jurisdiction in matters concerning the internal management of a company incorporated outside Australia, and possibly stronger reasons to defer to the jurisdiction of the courts of the place of incorporation. For the most part, if the judgment is made against the corporation itself by a court in the place of incorporation, that judgment should be enforceable in Australia by reason of the corporation’s presence in the place of incorporation at the time of service.92 However, in companies’ matters the defendant may often be an individual who has been sued by the corporation or one of its members. For example, if the matter concerned the internal management of the company, the defendant may be one of the company’s directors. There is no assurance that a director or other officer of a company will necessarily be present in the place of incorporation at the time at which the process that initiated the foreign proceedings is served. In the case of transnational corporations, there is certainly a significant risk that a director of the corporation will not have a regular presence in the place of incorporation. Cases like this require an alternative ground of international jurisdiction if the foreign court’s judgment is to be enforceable in Australia. 23.25  The constitution of a company (its articles of association) often provides that the members and officers of the company agree to submit to the jurisdiction of the courts of the place of incorporation. If so, then establishing an agreement to submit to the jurisdiction of the courts of the place of incorporation is relatively straightforward. 89.

90. 91. 92.

For example, in states and territories where law practices can incorporate, a director’s duties to the incorporated legal practice must defer to certain professional ethical commitments: for example, Legal Profession Act 2004 (NSW) s 143. See 23.11–23.14. See 5.8–5.42. See 5.13 and 5.57.

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23.26

International Company Law

The foreign judgment would then be enforceable in Australia. It nevertheless seems to be the case that this submission must be expressed within the corporate constitution. Where the statute law of the place of incorporation deems the submission to have taken place, this does not seem to be sufficient in itself to secure the recognition of any subsequent judgment within Australia.94 93

23.26  If an order in relation to a companies’ matter is made in a New Zealand  court, under the Trans-Tasman Proceedings Act 2010 (Cth) it will have the benefit of the Act’s more generous recognition of judgments and orders in specie (such as injunctions) in Australia. Furthermore, the Trans-Tasman Proceedings Act has an additional objective of improving the scope of corporate regulation in the single economic market that spans Australia and New Zealand. It therefore enables the recognition and enforcement of a range of public regulatory orders that traditionally are not to be recognised for extraterritorial enforcement. Specifically, the Act enables the recognition of civil pecuniary penalty orders and fines that are imposed by New Zealand courts.95 This expressly includes fines imposed in New Zealand  under the Companies Act  1993 (NZ), the Securities Act  1978 (NZ), the Securities Markets Act  1988 (NZ) and the Takeovers Act  1993 (NZ).96 New Zealand corporate regulation does not make the use of civil pecuniary penalty orders that Australian corporate regulation does, and so the extension of the enforcement of civil pecuniary penalty orders is of greater benefit to Australian regulatory interests in New Zealand. However, by any measure these reforms represent a significant departure from the usual common law reluctance to recognise judgments that give effect to a foreign public law or a foreign penal law.97

93. 94. 95. 96. 97.

Copin v Adamson (1875) 1 Ex D 17. Copin v Adamson (1874) LR 9 Ex 345. Trans-Tasman Proceedings Act 2010 (Cth) s 66(1)(c)–(d). Trans-Tasman Proceedings Regulation 2012 (Cth) reg 15(1). See 5.36 and 5.77; Trans-Tasman Proceedings Act 2010 (Cth) s 79(2)(c).

571



Chapter 24 Corporate Insolvency Introduction 24.1  In an increasingly mobile and interconnected world, corporate insolvency (and bankruptcy, in the case of individuals) raises important issues. Not only are assets of an insolvent company often located in many jurisdictions, but insolvency laws differ substantially between countries. The dominant theory in cross-border insolvency law is ‘modified universalism’, which aims to identify a single, primary place for the administration and distribution of property of a debtor company which is recognised by other countries’ courts, while still allowing the forum a limited discretion to intervene to protect local creditors.1 The rationale of modified universalism is to preserve the rights of creditors as a whole and to minimise unilateral ‘grabbing’ of assets. The principle of modified universalism is strongly embodied in the 1997 UNCITRAL Model Law on Cross-Border Insolvency (‘the Model Law’), which has been enacted in Australian law in s 6 of the Cross-Border Insolvency Act 2008 (Cth).

The Model Law Overview 24.2  The preamble to the Model Law states that its purpose is to provide effective mechanisms for the management of cross-border insolvencies, with five objectives: • cooperation between the courts and other competent authorities of different countries 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 persons, including the debtor; • protection and maximisation of the value of the debtor’s assets; and • facilitation of the rescue of financially troubled businesses, thereby protecting investment and preserving employment. 24.3  To give effect to the above objectives, the Model Law has four key elements: • access to local courts and insolvency proceedings for foreign representatives and creditors; 1.

Akers v Deputy Commissioner of Taxation (2014) 311 ALR 167; [2014] FCAFC 57 at [28]; Re HIH Insurance Ltd [2008] 1 WLR 852 at 856–7.

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Private International Law in Australia

• recognition of proceedings and orders of foreign courts; • relief (including interim relief) in aid of foreign proceedings; and • cooperation among courts of the states where assets are held and coordination of concurrent proceedings.2 24.4  In essence, the Model Law applies where assistance is sought in Australia by a foreign representative or a foreign court in connection with a foreign proceeding. The objective of the representative in seeking recognition of the proceeding is normally to seize control of assets of the debtor in Australia, with a view to remitting them to the foreign country for distribution. Note that the pre-existing Australian law on cross-border insolvency applies only to the extent that it is consistent with the provisions of the Model Law and the Cross-Border Insolvency Act.3 Hence, the statutory procedure under s 581 of the Corporations Act 2001 (Cth) providing for Australian courts to assist a foreign court following a request by that court in an insolvency matter (or vice versa) remains available.4

Access of foreign representatives and creditors to Australian courts 24.5  Article 9 of the Model Law allows a foreign representative to apply directly to a court in Australia. Article 11 provides that a foreign representative may commence a proceeding under the laws of Australia relating to insolvency, namely, Ch 5 and s 601CL of the Corporations Act,5 if the requirements for commencing such a proceeding are met. ‘Foreign representative’ is defined in Art 2(j) of the Model Law as a person or body authorised in a foreign proceeding to administer the reorganisation or the liquidation of the debtor’s assets or affairs or to act as a representative of the foreign proceeding. In the case of an insolvent company, a liquidator will likely be the most common example of such a person. Article 12 of the Model Law grants to the foreign representative, upon recognition of a foreign proceeding, the right to participate in a proceeding regarding the debtor under the laws of Australia relating to insolvency as defined above. Such a provision gives the representative the right to make requests or submissions on issues concerning the assets of the debtor in the Australian proceeding. Article 14 gives the foreign representative, upon recognition of a foreign proceeding, the right to intervene in any individual action in which the debtor is a party. Such wide powers of access to Australian proceedings for foreign representatives may make the need to appoint a local liquidator redundant.6 24.6  Article 13(1) gives foreign creditors the same rights regarding the commencement of and participation in proceedings under the laws of Australia relating to insolvency as local creditors, including the right to prove in a local insolvency. Article 13(2) relates to the ranking of creditors and provides, in conjunction with s 12(2) of the Cross-Border Insolvency Act, that the claims of foreign creditors, other than those concerning tax and

2. 3. 4. 5. 6.

Akers v Deputy Commissioner of Taxation (2014) 311 ALR 167; [2014] FCAFC 57 at [68]. Cross Border Insolvency Act 2008 (Cth) s 22; Akers v Deputy Commissioner of Taxation (2014) 311 ALR 167; [2014] FCAFC 57 at [69]. See 24.22–24.24. Cross Border Insolvency Act 2008 (Cth) s 8(b). See 24.27–24.28.

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Corporate Insolvency



24.7

social security obligations, are not to be ranked lower than the claims of other unsecured creditors. Article 14 requires that any individual notification to be given to local creditors must also be provided to known foreign creditors. Article 32 examines the rights of creditors in concurrent proceedings. It provides that an unsecured creditor 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 payment for the same claim in an Australian insolvency proceeding regarding the same debtor, so long as the payment to the other creditors of the same class is proportionately less than the payment the creditor has already received. Article 32 therefore ‘enshrine[s] the rule of equality or hotchpot to ensure that creditors are treated equally in circumstances of multiple funds against which access may be gained by different creditors’.7 Such a rule corresponds with the common law principle whereby a creditor, who has recovered assets of the debtor company overseas while the company is in liquidation in Australia, may not prove in the local winding up unless it brings into the hotchpot what has been recovered overseas.8

Recognition of foreign insolvency proceedings and relief Foreign proceedings 24.7  The regime for the recognition of a foreign insolvency proceeding is contained in Ch III of the Model Law. This applies to all foreign insolvency proceedings, including those conducted in New Zealand.9 Under Art 15(1), a foreign representative may apply to the Australian court for recognition of the foreign proceeding in which the representative has been appointed. ‘Foreign proceeding’ is defined in Art 2 of the Model Law as ‘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’. A court-appointed receivership was held not to be a foreign proceeding for the purposes of Art 2(3) because it involved the exercise of a power to protect investors in proceedings relating to fraud rather than a collective administration to protect the wider class of creditors generally.10 The same conclusion applies with even stronger force in the case of a privately appointed receiver, since such a person acts for a specific creditor and has no mandate for collective distribution of the debtor’s assets.11 By contrast, a creditor’s voluntary liquidation has been held to fall under such provision because it is a collective proceeding involving control by the court pursuant to a law relating to insolvency.12 A member’s 7. 8. 9.

10. 11. 12.

Akers v Deputy Commissioner of Taxation (2014) 311 ALR 167; [2014] FCAFC 57 at [67]. Re Standard Insurance Company Ltd [1968] Qd R 118. Trans-Tasman Proceedings Regulation 2012 (Cth) reg 16 excludes domestic insolvency proceedings in New Zealand and those under the Insolvency (Cross-border) Act 2006 (NZ) from the general application of the Trans-Tasman Proceedings Act 2010 (Cth). Re Stanford International Bank [2009] EWHC 1441. R Mason, ‘Implications of the UNCITRAL Model Law for Australian Cross-Border Insolvencies’ (1999) 8 International Insolvency Review 88 at 89. Raithatha v Ariel Industries PLC (2012) 212 FCR 139; [2012] FCA 1526. A voluntary administration is also such a proceeding: Re Hayes, Pumpkin Patch Originals Ltd (Admin Apptd) (in Rec) v Pumpkin Patch Originals Ltd (Admin Appointed) (in Rec) [2016] FCA 1353.

575

24.7

Private International Law in Australia

application for winding up a company on the just and equitable ground has also been held to satisfy the definition in Art 2, because under the foreign law in which the winding up was ordered ‘insolvency’ was included as a basis even though in that case that ground was not relied upon.13 24.8  There are two types of proceedings that may be recognised under the Model Law: foreign main proceedings; and foreign non-main proceedings.14 A foreign main proceeding is a proceeding in a foreign state where the debtor has its ‘centre of main interests’. The expression ‘centre of main interests’ is not defined, but Art 16(3) provides that, in the absence of proof to the contrary, the debtor company’s registered office is presumed to be the centre of its main interests. As Rares J stated in Akers v Saad Investments Co Ltd (in official liquidation),15 the purpose of the rebuttable presumption is to provide a convenient means of dispensing with formal proof, but to leave the way open for the court to find that, on the evidence, the contrary is the case. Where a company is found to have two registered offices, the presumption does not apply.16 In determining the centre of a debtor’s main interests, courts have been concerned to identify criteria that are both objective and ascertainable to third parties such as creditors and potential creditors, with a focus on permanent, rather than transitory, activities.17 Consequently, the centre of main interests should correspond to the place where the debtor conducts the administration of its business on a ‘regular basis’.18 A decision in which the presumption in favour of the debtor’s registered office as the centre of main interests was rebutted is Young JR v Buccaneer Energy Ltd.19 In that case, a company, while registered in Australia and listed on the Australian Stock Exchange, was nevertheless found to have its centre of main interests in the United States where its head office was located and all its business operations took place. The ‘overwhelming [weight of] evidence’20 showed that the substance of the debtor’s activities was centred there. Similarly, in Legend International Holdings Inc (as debtor in possession of the assets of Legend International Holdings Inc) v Legend International Holdings Inc,21 a company, while originally incorporated in the United States, was found to have its centre of main interests in Australia where it had its principal and only place of business and conducted its operations. 24.9  The relevant date for determining the centre of main interests of the debtor is not specified in the Model Law. Australian courts have taken a variety of views on this issue: the time the court is called upon to make a decision to recognise the foreign proceeding;22 the

13. 14. 15. 16. 17. 18.

19. 20. 21. 22.

Re Chow Cho Poon (Private) Ltd (2011) 80 NSWLR 507; [2011] NSWSC 300 at [51]. Art 17(2). (2010) 190 FCR 285; [2010] FCA 1221 at [46], [53]. Legend International Holdings Inc (as debtor in possession of the assets of Legend International Holdings Inc) v Legend International Holdings Inc [2016] VSC 308 at [81]. At [49]. Moore, as Debtor-in-Possession of Australian Equity Investors [2012] FCA 1002 at [20]; Legend International Holdings Inc (as debtor in possession of the assets of Legend International Holdings Inc) v Legend International Holdings Inc [2016] VSC 308 at [96]; Wood v Astra Resources Ltd [2016] FCA 1192 at [12]. [2014] FCA 711. At [14]. [2016] VSC 308. Moore, as Debtor-in-Possession of Australian Equity Investors [2012] FCA 1002 at [18].

576

24.12

Corporate Insolvency



time the recognition application is filed; and, most recently, the time of commencement of the foreign proceeding. The third view has been supported for ‘inject[ing] certainty and uniformity of approach’ and avoiding the diversity of outcomes that may be produced due to ‘ad hoc and adventitious movements [and activities] of the debtor post the commencement of the foreign proceeding’.25 23

24

24.10  A foreign non-main proceeding is a proceeding other than a main proceeding, where the debtor has an establishment. ‘Establishment’ means any place of operations where the debtor carries out a non-transitory economic activity with human means and goods and services.

Relief 24.11  The principal significance of a proceeding being recognised as a foreign main proceeding as opposed to a non-main proceeding lies in the different remedial structures in each case. Under Art 20 of the Model Law, recognition of a foreign main proceeding effects an automatic stay of individual actions concerning the assets of the debtor and execution against such assets, as well as a suspension of the right to transfer, encumber or otherwise dispose of any assets of the debtor company. The scope of such a stay or suspension is the same as would apply if the stay or suspension arose under Ch V of the Corporations Act.26 If the proceeding is recognised as a non-main proceeding, then the relief available is provided in Art 21, which is discretionary. Article 21 provides that upon a foreign proceeding (main or non-main) being recognised by an Australian court, the court, at the request of the foreign representative and where necessary to protect the assets of the debtor or the interests of creditors, may ‘grant any appropriate relief ’. Such remedies include the relief mentioned under Art 20, as well as the right to examine witnesses,27 take evidence concerning the debtor’s assets, affairs, rights, obligations and liabilities,28 restrain the enforcement of any charges against the property of the debtor and, perhaps most importantly, the entrusting of the administration or realisation of the debtor’s assets located in Australia to the foreign representative.29 In granting this last mentioned form of relief under Art 21, the court must be satisfied that the interests of creditors in Australia are adequately protected.30 24.12  Article 6 preserves the court’s discretion to refuse recognition of a foreign proceeding if it would be manifestly contrary to the public policy of Australia. In Legend International Holdings Inc (as debtor in possession of the assets of Legend International Holdings Inc) v Legend International Holdings Inc,31 it was held that recognition of a United States

23. 24. 25. 26. 27. 28. 29. 30. 31.

Gainsford v Tannenbaum (2012) 216 FCR 543; [2012] FCA 904 at [44]. Kapila, in the matter of Edelsten [2014] FCA 1112 at [36]–[38]. At [37]. Cross-Border Insolvency Act 2008 (Cth) s 16(b). Crumpler v Global Tradewaves Ltd (in liq) [2013] FCA 1127. Re Abate, as Liquidator of Onix Capital SA [2017] FCA 751 at [82]. Tai-Soo Suk v Hanjin Shipping Co Ltd [2016] FCA 1404 at [59], [61]. Model Law Art 21(2). [2016] VSC 308 at [36], [51].

577

24.12

Private International Law in Australia

Chapter 11 insolvency proceeding was not contrary to Australian public policy as it was ‘merely a different regime’ to the Australian equivalent of voluntary administration.32 24.13 In Rubin v Eurofinance SA33 the United Kingdom Supreme Court had to consider an application to enforce a foreign judgment. In United States Chapter 11 insolvency proceedings, the defendant creditor had been ordered to bring to account a benefit received by the defendant before the proceedings had commenced, and where the receipt of the benefit amounted to a preference given by the debtor to the defendant. The United States proceeding was recognised as a foreign main proceeding in England, but the Supreme Court refused to enforce the judgment where the common law principles for the recognition and enforcement of foreign in personam judgments were not satisfied. Such principles require the defendant to have been either present for service in the foreign country or to have submitted to the foreign court’s jurisdiction. Article 21 of the Model Law did not disturb this conclusion, since enforcement of foreign judgments was not expressly included in the list of ‘any appropriate relief ’ in Art 21. The court rejected the argument that a judgment in insolvency proceedings represents a third category of foreign judgments that can be recognised by an English court in addition to judgments in personam and in rem, since the judgment here required a creditor to repay a preferential payment and so was in personam in nature. It did not matter that the broad purpose of insolvency proceedings is to provide a means for collective execution by creditors against the debtor’s assets. By contrast, in the companion proceeding before the Supreme Court, New Cap Reinsurance Corp (in liq) v AE Grant,34 the defendant creditor was found to have submitted to the jurisdiction in an Australian preference recovery proceeding by taking active steps in the winding up, such as lodging proofs of debt and participating in creditors’ meetings. 24.14  Note that Art 19 of the Model Law provides for the discretionary grant of provisional relief to a foreign representative from the time when the application for recognition of a foreign proceeding is made until the time when the application is decided. The applicant must show, however, that such relief is urgently needed to protect the assets of the debtor or the interests of creditors. A freezing order over a debtor’s assets was recently granted under this provision.35 24.15  Article 22(3) provides that the court may, at the request of the foreign representative or a person affected by relief granted under Art 19 or Art 21, modify or terminate such relief. In doing so, according to Art 22(1), the court must be satisfied that the interests of the creditors and other interested persons, including the debtor, are adequately protected. A modification order was granted by Rares J in a later proceeding in Akers v Saad Investments Co Ltd36 to allow the Deputy Commissioner of Taxation to recover outstanding Australian tax debts from the debtor’s Australian assets before such assets were remitted to the debtor’s centre of main interests. The decision of Rares J was upheld by the Full Court of the Federal Court, who emphasised the fact that the Deputy Commissioner would have been unable to 32. 33. 34. 35. 36.

See also Re Agrokar DD [2017] EWHC 2791 (Ch) at [131]. [2013] 1 AC 236. [2013] 1 AC 236 at [166]. Whittman v UCI Holdings Ltd [2016] NZHC 1228. [2013] FCA 738 (aff ’d: Akers v Deputy Commissioner of Taxation (2014) 311 ALR 167; [2014] FCAFC 57).

578



Corporate Insolvency

24.19

prove for the Australian taxation debt in the foreign liquidation due to the well-established rule of private international law that a court will not admit claims based on foreign revenue laws. Hence, unlike other creditors of the debtor, the Deputy Commissioner had in reality only one asset ‘fund’ from which it could recover: the Australian fund. 24.16  The Full Court in Akers also acknowledged that, in line with the United Kingdom Supreme Court decisions in Rubin and New Cap above, a creditor that lodges a proof of debt in a foreign insolvency administration may be considered to have submitted to the jurisdiction of the foreign court supervising the administration and be susceptible to the orders of such court. Yet this fact of submission does not mean that the foreign court supervising the foreign main proceeding has exclusive jurisdiction over all issues concerning the insolvency or that a local creditor is barred from pursuing relief in another jurisdiction such as Australia. The Model Law ‘assumes complementary authority’ of the local court and the court supervising the proceeding.37 The issue of concurrent proceedings in insolvency is discussed further below.38 24.17  Article 23 allows a foreign representative, where a foreign insolvency proceeding has been recognised, to bring proceedings in the Australian courts under Div 2 of Pt 5.7B of the Corporations Act39 to nullify transactions that were entered into by the debtor to the detriment of creditors; for example, preference payments. Hence, the interesting result is reached that, after having had the foreign proceedings recognised in England, the foreign representative in Rubin could have sued the creditor in the English courts for recovery of the preference payment. Yet the representative could not enforce a judgment from a foreign court that ordered such recovery.

Concurrent insolvency proceedings and judicial cooperation 24.18  Prior to the adoption of the Model Law in Australia, it was well accepted that the mere fact of a company being declared insolvent by a foreign court did not oust the jurisdiction of the Australian courts to entertain concurrent proceedings in respect of the debtor. Such proceedings may be beneficial where the Australian insolvency legislation has a wider scope of application than that of the foreign country, such as where the foreign insolvency legislation has no extraterritorial effect on Australian assets. Article 28 of the Model Law recognises concurrent proceedings, even after recognition of a foreign main proceeding by an Australian court. The provision does, however, require that any insolvency proceeding brought under Australian law be limited to the debtor’s assets in Australia. Hence, if no such local assets exist, no concurrent local proceedings may be commenced. 24.19  Article 29 of the Model Law further deals with concurrent proceedings. According to the Guide to Enactment of the Model Law, the ‘salient principle’40 in Art 29 is that the

37. 38. 39. 40.

(2014) 311 ALR 167; [2014] FCAFC 57 at [165]. See 24.18–24.20. Cross-Border Insolvency Act 2008 (Cth) s 17(1)(b). UNCITRAL, UNCITRAL Model Law on Cross-Border Insolvency with Guide to Enactment and Interpretation, 2013, para 230: .

579

24.19

Private International Law in Australia

commencement of a local proceeding does not prevent or terminate the recognition of a foreign proceeding. Indeed, Art 29 ‘maintains a pre-eminence’41 of the local proceeding over the foreign proceeding. This relationship between the proceedings is achieved by providing that: • any relief to be granted to the foreign proceeding must be consistent with the local proceeding;42 • any relief already granted must be reviewed and modified or terminated to ensure consistency with the local proceeding;43 • in the case of a foreign main proceeding, the automatic effects of recognition under Art 20 must be modified or terminated if inconsistent with the local proceeding;44 and • where a local proceeding is pending at the time a foreign proceeding is recognised as a foreign main proceeding, the foreign proceeding does not enjoy the automatic effects of Art 20.45 24.20  Where concurrent proceedings have been brought in relation to the same debtor, Art 29 provides that the Australian court must seek cooperation and coordination under Arts 25–27. Article 25 provides that an Australian court must cooperate to the maximum extent possible with foreign courts or foreign representatives, including allowing the local court to communicate with or request information or assistance from foreign courts or representatives. Such a provision is beneficial as it avoids the delays of the traditional letter of request procedure, which is crucial in insolvency, ‘where the value of assets can evaporate quickly with the passage of time’.46 Article 26 imposes a similar cooperation obligation on an Australian liquidator. Note also that the operation of Arts 25 and 26 do not depend upon any decision to recognise a foreign proceeding. 24.21  Article 27 then provides that cooperation referred to in Arts 25 and 26 may be implemented by any appropriate means including (a) the appointment of a person to act at the direction of the court; (b) communication of information by any means considered appropriate by the court; (c) coordination of the administration and supervision of the debtor’s assets and affairs; (d) approval or implementation by courts of agreements concerning the coordination of proceedings; and (e) coordination of concurrent proceedings regarding the same debtor. Such a list may be helpful for jurisdictions such as Australia with little history of direct inter-jurisdictional judicial cooperation.47 Note, however, that in Rubin v Eurofinance SA,48 discussed above,49 the United Kingdom Supreme Court found that the 41. 42. 43. 44. 45. 46. 47. 48. 49.

UNCITRAL, above n 40, para 231. Model Law Art 29(a)(i). Model Law Art 29(b)(i). Model Law Art 29(b)(ii). Model Law Art 29(a)(ii). S Jackson and R Mason, ‘Developments in Court to Court Communications in International Insolvency Cases’ (2014) 37 University of New South Wales Law Journal 507 at 514. Jackson and Mason, above n 46. [2013] 1 AC 236. See 24.13.

580

Corporate Insolvency



24.23

duty to cooperate under Art 25 did not authorise enforcement of a foreign judgment against a third party creditor in connection with the insolvency of a debtor where the judgment was not otherwise enforceable under common law principles.

Letter of request 24.22  It was noted above that the pre-existing principles of Australian law on cross-border insolvency continue to apply to the extent that they are consistent with the provisions of the Model Law. An important example is s 581(2) of the Corporations Act, which provides an alternative pathway50 to the Model Law for a foreign liquidator seeking to recover assets from and investigate the affairs of a corporate debtor in Australia in connection with a company being wound up abroad. Such a mechanism may be particularly valuable where recognition of a foreign insolvency proceeding is not possible under the Model Law: see, for example, Gainsford v Tannenbaum.51 24.23  Section 581(2)(a) requires an Australian court to act in aid of courts of ‘prescribed’52 foreign countries in ‘matters of external administration’, which is defined53 to include the winding up of an Australian registered company or a Pt 5.7 body, which includes a foreign company registered overseas but also registered in Australia under Pt 5B.2 Div 2 of the Corporations Act, and the winding up outside Australia of a body corporate or the insolvency of a body corporate. Section 581(2)(a) imposes a duty on an Australian court to act in aid of the foreign court even where no request for assistance is made. In practice however, in the absence of such a request, the Australian court will not know what assistance is to be provided.54 By contrast, s 581(2)(b) confers only a discretion on an Australian court to act in aid of courts of other countries where a request for assistance has been made. In the case of a letter of request from a foreign country, the Australian court may exercise such powers with respect to the matter as it could exercise if the matter had arisen in Australia.55 The mandatory nature of s 581(2)(a) ‘leaves no room for the court to take the view that some aspect of the [foreign] legal system under which the orders were made is at odds with a like aspect of Australia’s legal system’.56 A similar approach was adopted by the House of Lords in Re HIH Casualty and General Insurance Ltd.57 There, the court had to consider a request from an Australian court for assistance in the context of a provisional liquidation of Australian companies in England, where the principal liquidation was taking place in Australia. The House of Lords unanimously held that the mere fact that under the insolvency law of Australia there would be a significant class of creditors whose debts would not have the priority they would have enjoyed under English law was an insufficient reason 50. 51. 52. 53. 54.

55. 56. 57.

Re McGrath as Liquidators of HIH Insurance Ltd [2008] NSWSC 881 at [18]. (2012) 216 FCR 543; [2012] FCA 904. Corporations Regulations 2001 (Cth) reg 5.6.74 prescribes the Bailiwick of Jersey, Canada, Papua New Guinea, Malaysia, New Zealand, Singapore, Switzerland, the United Kingdom and the United States. Corporations Act 2001 (Cth) s 580. Re Independent Insurance Co [2005] NSWSC 587 at [14]; Legend International Holdings Inc (as debtor in possession of the assets of Legend International Holdings Inc) v Legend International Holdings Inc [2016] VSC 308 at [139]. Corporations Act 2001 (Cth) s 581(3). Re Chow Cho Poon (Private) Ltd (2011) 80 NSWLR 507; [2011] NSWSC 300 at [21]. [2008] 1 WLR 852.

581

24.23

Private International Law in Australia

to refuse to remit the English assets to the Australian liquidator for distribution. Ideas of comity between courts and deference to the ‘natural forum’ of the liquidation (which would normally be the place of principal liquidation) strongly supported such an approach.58 24.24  Conversely, an Australian liquidator may wish to recover assets and investigate the affairs of a debtor in a foreign country. One method for doing this, of course, would be for the liquidator to seek recognition of any Australian winding-up proceeding in the foreign country, assuming such jurisdiction has adopted the Model Law. The advantage of such an approach is that the foreign court has ‘independent jurisdiction’59 in relation to the debtor, with the liquidator able to recover assets directly as opposed to relying on the foreign court to act in aid of the Australian court. Yet, if the foreign country has not adopted the Model Law, the only possible path may be to apply to the Australian court under s 581(4) of the Corporations Act to request the foreign court to act in aid of the Australian tribunal. Australian courts will often require evidence, before issuing a letter of request to a foreign court, that the court would likely honour such a request under its own laws.60

Winding up of companies 24.25  The winding up of companies in Australia is regulated by Ch 5 of the Corporations Act. A company may be wound up where it is a corporation registered under the Act or a ‘Part 5.7 body’, which is defined in s 9 of the Act to include registered foreign companies and unregistered foreign companies that ‘carry on business in Australia’. In determining whether an unregistered foreign company carries on business in Australia, courts have relied upon the extended definition of that expression in s 21 of the Act, and more general principles. Hence, in Re Norfolk Island Shipping Line Co61 a company was found to be carrying on business when it engaged in more than isolated transactions with a view to pecuniary gain. Further, in Re New Cap Reinsurance Corp Holdings Ltd62 the test was also satisfied where the company had made substantial investments of funds in Australia and issued letters of credit there. 24.26  Under s 582(3) of the Act, a foreign company may be wound up in Australia under Pt 5.7 of the Act regardless of whether it has been wound up, deregistered or dissolved under the law of its country of incorporation.63 Where a company has been dissolved in its place of incorporation, the effect of an Australian winding-up order is to revive both

58.

59. 60. 61. 62. 63.

For a consistent decision in the bankruptcy context, see Ayres v Evans (1981) 39 ALR 129, where the Full Court of the Federal Court honoured a request from a New Zealand court to allow an official assignee of a New Zealand debtor to recover assets of the debtor in Australia, despite the fact that the majority of his proved debts were revenue debts owed to the New Zealand Government. M Murray and J Harris, Keay’s Insolvency, 9th ed, Thomson Reuters, 2016, p 539. See, for example, New Cap Reinsurance Corp Ltd v AE Grant (2009) 257 ALR 740; [2009] NSWSC 662; Elderslie Finance Corp Ltd v New Page Pty Ltd (No 5) [2007] FCA 961. (1988) 6 ACLC 990. (1999) 32 ACSR 234; [1999] NSWSC 536; compare Davidson v Global Investments International Ltd (1995) 19 ACSR 89. Russian and English Bank v Baring Bros & Co [1936] AC 405; Titchfield Management Ltd v Vaccinoma Inc (2008) 68 ACSR 448; [2008] NSWSC 1196.

582

Corporate Insolvency



24.28

the company in ‘zombie’ form and its debts for the purpose of the local liquidation. Any debts contracted in the period between dissolution of the company and the issuing of the winding-up order in the Australian forum may be included in the winding up.65 64

24.27  A foreign company may therefore be wound up in a principal liquidation under Pt 5.7 of the Act. Alternatively, the company, if it is registered under Pt 5B.2 of the Act, may be wound up in an ‘ancillary’ liquidation where it is already in principal liquidation in the place of incorporation. In this situation, a local liquidator is appointed to administer the local assets of the company. If a registered foreign company is being wound up, dissolved or deregistered in its place of origin the local Australian agent of the company must notify the Australian Securities and Investments Commission (ASIC) that this has occurred and also must give notification when a liquidator is appointed.66 The liquidator in that place or ASIC may then apply to an Australian court to appoint a liquidator of the foreign company in Australia, and the court must agree to the request.67 The liquidator appointed by the court must, through newspaper advertisements in the Australian states and territories in which the company carried on business six years prior to liquidation, invite all creditors to make claims against the foreign company within a reasonable time before the distribution. The liquidator also must not, without a court order, pay out a creditor of the foreign company to the exclusion of another creditor of the company.68 Further, the liquidator must recover and realise the property of the foreign company in Australia and must pay the net amount so recovered and realised to the liquidator of the foreign company for its place of origin.69 Where there is no liquidator for its place of origin, the liquidator may apply to the court for directions about the disposal of the net amount recovered.70 24.28  An Australian court is not required to order an ancillary winding up; it has a discretion to decline to make an order where it considers a local winding up unnecessary; for example, because there are too few local assets and the matter can be adequately handled by the foreign principal liquidator.71 Therefore, normally an applicant would need to show, to support the exercise of jurisdiction, that there is some ‘commercial connection’ with Australia such as through the presence of assets there or ‘people in the jurisdiction concerned in the proper distribution of the assets’ (creditors) and a reasonable possibility of benefit accruing to creditors from a winding up.72 This last requirement was satisfied where the only asset of the foreign company in the forum was a claim for indemnity against

64. 65. 66. 67. 68. 69. 70. 71. 72.

This is the description given in A Briggs, The Conflict of Laws, 3rd ed, Oxford University Press, Oxford, 2013, p 378. Re Russian Commercial & International Bank [1955] Ch 148. Corporations Act 2001 (Cth) s 601CL(14)(a). Corporations Act 2001 (Cth) s 601CL(14)(b). Corporations Act 2001 (Cth) s 601CL(15)(a), (b). Corporations Act 2001 (Cth) s 601CL(15)(c). Corporations Act 2001 (Cth) s 601CL(16). Re Jarvis Conklin Mortgage Co (1895) 11 TLR 373. Re Norfolk Island Shipping Line Pty Ltd (1988) 6 ACLC 990 at 991; Australian Securities and Investments Commission v Edwards (2004) 22 ACLC 1469 at 1481; [2004] QSC 344. For a fuller discussion, see R Mason, ‘Local Proceedings in a Multistate Liquidation: Questions of Jurisdiction’ (2006) 30 Melbourne University Law Review 145.

583

24.28

Private International Law in Australia

the insurer of the company.73 Even though such an asset would not have been available for distribution to all creditors, it was nevertheless a possible benefit accruing to the individual creditor seeking the winding up of the company. 24.29  If a foreign court proceeding concerning the same parties and issues in dispute is pending, this is normally a strong factor in favour of a stay of Australian proceedings.74 In the insolvency context, however, this principle has arguably less weight for two reasons. First, the Corporations Act and the Model Law expressly contemplate the existence of concurrent proceedings; and, second, many of the issues that arise during a local liquidation concern assets and creditors and local insolvency law that ‘may not be the subject of litigation in foreign insolvency proceedings’.75 24.30  When recovering and realising the assets of the debtor company in Australia, the  liquidator is required to meet the claims of local and foreign creditors on an equal basis. As noted above, the combined effect of Art 13(2) of the Model Law and s 12(2) of the Cross-Border Insolvency Act is to rank all creditors in a liquidation equally, except in the case of claims arising from tax and social security obligations. In Re Standard Insurance Co Ltd,76 the principle of equal treatment of creditors was applied to remit funds after an ancillary liquidation to the foreign principal liquidator, even though creditors in the local liquidation had not been entirely satisfied. 24.31  The grounds on which a foreign company may be wound up in Australia are broadly77 that the company is unable to pay its debts; has been dissolved; has ceased to carry on business in Australia; has a place of business only for the purposes of winding up its affairs; or the court considers that it is just and equitable that the company be wound up. Further, an order for winding up may be granted if ASIC has stated in a report that, in its opinion, the foreign company cannot pay its debts or the interests of the public, the members, or the creditors support a winding up. Any creditor of a company has standing to apply for a winding-up order.78 A winding-up proceeding is governed by the law of the Australian forum, even where it is ancillary to foreign proceedings.79

73. 74. 75. 76. 77. 78. 79.

Re Compania Merabello San Nicholas SA [1973] Ch 75. Henry v Henry (1995) 185 CLR 571. Mason, above n 72, at 182. [1968] Qd R 118; see also Re Azoff-Don Commercial Bank [1954] Ch 315. Corporations Act 2001 (Cth) s 583. Corporations Act 2001 (Cth) s 459P(1)(b). Re English, Scottish and Australian Chartered Bank [1893] 3 Ch 385 at 394; Re Bank of Credit and Commerce International SA (No 10) [1997] Ch 213.

584

Index References are to paragraphs descent …. 10.39 residence …. 10.41 loss of …. 10.42–10.48 acquisition of foreign nationality …. 10.43–10.45 executive deprivation …. 10.48 renunciation …. 10.47 service in hostile army …. 10.46 status …. 10.35

A

Administration of estates see Deceased estates Annulment of marriage see also Matrimonial causes choice of law …. 14.14 decree of Australian …. 14.16–14.17 foreign decrees …. 14.19–14.23, 14.43–14.50 New Zealand …. 14.18 personal connection …. 14.24–14.42 recognition of …. 14.1, 14.16–14.42 unrecognised foreign decrees …. 14.43–14.50 jurisdiction …. 14.5 maintenance and property see Maintenance and property testate succession, revocation by immovable property …. 22.33 movable property …. 22.47 Anti-suit injunctions foreign …. 4.91 grant of, prohibition of …. 4.93–9.94 grounds for …. 4.85, 4.87 order for …. 4.82 overview …. 4.81 principles …. 4.82 property or maintenance proceedings …. 16.8–16.9 restraint of proceedings …. 4.82, 4.86 Appeals substance and procedure …. 7.52 Arbitration see International arbitration Assignment see Transfer of property Australian citizenship acquisition of …. 10.36–10.41 adoption …. 10.38 birth …. 10.37 conferral …. 10.40

B

Beneficial succession immovable property …. 22.18–22.34 intestate succession …. 22.18 testate succession see Testate succession movable property …. 22.35–22.48 intestate succession …. 22.35 testate succession see Testate succession Burden of proof substance and procedure …. 7.33

C

Carriage of Goods by Sea Act 1991 (Cth) …. 6.13 Chattels interest in …. 20.26 location of …. 20.8 ships …. 20.9 movable property …. 20.26 succession to …. 20.8 tangible property …. 20.8, 20.26 transfer of …. 21.9–21.20 complications …. 21.16–21.20 derivative claims …. 21.13–21.15 effect of …. 21.10–21.11 exceptions …. 21.16–21.20 goods in transit …. 21.18 location of property …. 20.8, 20.9

585



Private International Law in Australia

Chattels — cont’d public policy …. 21.20 renvoi …. 21.17 security interests …. 21.12, 21.19, 21.35 Child Support (Registration and Collection) Act 1988 (Cth) …. 16.18, 16.20–16.23 Children custody of see Parental responsiblity ex-nuptial …. 13.1 residence of see Residence Choice, domicile of see Domicile Choice of court agreements see Jurisdiction agreements Choice of law cases …. 7.1–7.3 complications …. 8.2–8.35 conflict of conflict rules …. 8.17 dépeçage …. 8.2–8.3 division …. 8.2–8.3 incidental questions …. 8.4–8.12 remission and transmission …. 8.14–8.16 renvoi see Renvoi, doctrine of constitutional limitations …. 11.1–11.28 full faith and credit see Full faith and credit interstate discrimination …. 11.21–11.25 role of Constitution …. 11.26–11.28 contracts, for see Contracts corporations …. 23.15–23.23 capacity and powers …. 23.19 internal management …. 23.22–23.23 members’ rights and liabilities …. 23.20–23.21 validity of incorporation …. 23.17–23.18 defamation …. 18.17–18.23 foreign defamation …. 18.22–18.23 within Australia …. 18.18–18.21 dispositive rules …. 7.4 equitable claims. see Equitable claims exclusion of unacceptable laws see Exclusion of unacceptable laws Hague Child Protection Convention …. 15.62–15.65 classification …. 15.61

law of the cause …. 15.65 parental responsibility …. 15.62–15.63 renvoi …. 15.64 identification of …. 7.53 internal rules …. 7.4 law of the cause application of …. 7.54–7.55, 8.36–8.69 identification of …. 10.1, 10.4–10.5 law of the forum …. 8.1 maintenance and property …. 16.14–16.15 marriage common law rules …. 13.21–13.22 generally …. 13.2–13.3 rules …. 13.41–13.58 matrimonial causes …. 14.13–14.15 methods for determining complications of …. 8.2–8.35 constitutional limitations …. 11.2 generally …. 7.2–7.3, 8.1 statute law see Statute law obligations, for see Contracts; Torts parental responsibility …. 15.60–15.66 process …. 7.2 property, for …. 5.18 reform …. 17.54–17.57 renvoi see Renvoi, doctrine of rules …. 7.2 constitutional limitations …. 11.1 identification of …. 7.53, 8.1, 10.1 indicative …. 8.13 internal …. 7.4, 8.13, 11.1 interstate …. 11.2 statutes …. 12.5–12.6, 12.10–12.14 torts, for see Torts trusts see Trusts validity of marriage see Marriage Citizenship see Australian citizenship; Nationality Civil partnerships choice of law …. 14.15 interstate recognition …. 13.59–13.60 parallel actions for declaration of voidness …. 14.3 state and territory role …. 13.1, 13.13 termination of …. 14.12 586



Index

Civil unions interstate recognition …. 13.59–13.60 state and territories role …. 13.13 Comity doctrine of …. 1.34–1.35 international …. 1.34–1.35 interstate …. 1.34 mutuality …. 1.34 reciprocity …. 1.34 Compensation contributory …. 18.40 indemnity …. 18.38 motor vehicle accidents compulsory third party insurance …. 18.35–18.36 insurers, against …. 18.36 multi-state claims …. 18.36 no-fault compensation scheme …. 18.35, 18.38 nominal defendants …. 18.35 recovery of …. 18.35 statutory defendants …. 18.35 third party …. 18.35–18.36, 18.38 Concurrence of liability claims in tort …. 18.43–18.46 cross-claims …. 18.43 injuries in course of employment …. 18.43–18.44, 18.46 provision of service contracts …. 18.45 Confiscation laws exclusion of unacceptable laws …. 8.51 Conflict of laws classification …. 7.12–7.23 analytical approach …. 7.18 complications in process …. 7.16 functional approach …. 7.19 law of …. 7.20–7.23 subject matter, of …. 7.12–7.16 false conflict …. 7.10–7.11 identification of …. 7.5–7.11 process …. 7.6 private international law …. 1.3 relevant legal systems identification of …. 7.6–7.7 internal rules …. 7.8 subject matter …. 7.12–7.16 allocation of …. 7.15 classification of …. 7.12–7.19 primary classification

term, use of …. 1.3 true conflict …. 7.11–7.12 Consistency goal of …. 1.29–1.30 predictability …. 1.28 uniformity …. 1.28 Constitutional limitations choice of law, role of Constitution in …. 11.26–11.28 full faith and credit see Full faith and credit interstate discrimination …. 11.21–11.25 Consular immunity …. 3.28, 3.31–3.32 duration of …. 3.33–3.34 entitlement to …. 3.28 waiver of …. 3.34 Consumer contract Australian Consumer Law ‘engaging in conduct’ outside Australia …. 17.50 common law choice of law rules, and …. 17.49 Competition and Consumer Act …. 17.50 Consumer credit …. 17.52 Consumer protection …. 17.49–17.51 Contracts assignment of rights …. 17.43 breach of …. 2.56–2.59 change of proper law …. 17.20–17.24 choice of law reform …. 17.54–17.57 classification of …. 17.3 common law …. 2.52 concept of proper law …. 17.3 consent …. 17.33 consideration for …. 17.32 consumer contracts …. 17.49–17.51 consumer credit …. 17.52 contracting capacity …. 17.29 contracting out …. 17.53 contractual debt see Debts creation of …. 17.28 dépeçage …. 17.25 defences to claims in tort …. 18.47 determination of proper law …. 17.6–17.19 enforceable promise …. 17.28 express agreement …. 2.52 express choice of proper law …. 17.7–17.13 bad faith and …. 17.10 587





Private International Law in Australia

Contracts — cont’d limits to …. 17.9–17.13 overriding legislation and …. 17.12 public policy and …. 17.13 unconnected law and …. 17.11 formation …. 17.27–17.33 consent …. 17.33 consideration …. 17.32 contracting capacity …. 17.29 general principles …. 17.28 offer and acceptance …. 17.30 statutes of frauds …. 17.31 forum …. 2.51–2.63 general principles …. 17.28 implied choice of proper law …. 17.14 incorporation …. 17.26 insurance …. 17.48 international sale of goods …. 17.47 jurisdiction …. 2.50 breach of contract in forum …. 2.56–2.59 contract governed by law of forum …. 2.60 contract made by agent in forum …. 2.54 contract made in forum …. 2.51–2.53 contract performed in forum …. 2.55 party to contract had connection to forum …. 2.63 multi-state contracts …. 17.5 multiple proper laws …. 17.25–17.26 dépeçage …. 17.25 incorporation …. 17.26 novation …. 17.43 objective proper law …. 17.15–17.19 obligations binding, and jurisdiction …. 2.52 classification …. 17.3 performance of …. 2.59, 17.34–17.43 offer and acceptance communication of, and jurisdiction …. 2.52–2.54 formation …. 17.30 operation of proper law …. 17.2 performance …. 17.34–17.43 failure of …. 17.42 general principles …. 17.34–17.36 illegality under place of …. 17.38–17.40 interpretation of terms …. 17.41 mode of …. 17.37

novation …. 17.43 place of contract and jurisdiction …. 2.51–2.63 reform of choice of law …. 17.54–17.57 related claims …. 17.44 renvoi, application of …. 17.5 rights …. 17.3 assignment of …. 17.43 scope of proper law …. 17.1–17.2 sea carriage of goods …. 17.46 service of process …. 2.50–2.63 specific contracts …. 17.45–17.53 statutes of frauds …. 17.31 subjective proper law …. 17.7–17.14 time of attribution …. 17.4 transfer of property see Transfer of property Contribution liability for …. 18.40 right of …. 18.40 substance and procedure …. 7.37 Convention on the Recovery Abroad of Maintenance 1956 …. 16.18 Convention on the Settlement of Investment Disputes …. 6.40 Conversion unlawful interference or detention of goods …. 18.42 Conveyances see Transfer of property Corporate insolvency access to Australian courts …. 24.5–24.6 concurrent proceedings …. 24.18–24.21 judicial cooperation …. 24.20–24.21 foreign proceedings recognition …. 24.7–24.10 relief available …. 24.11–24.17 letter of request …. 24.22–24.24 Model Law …. 24.2–24.24 overview …. 24.1 winding up …. 24.25–24.31 Corporations choice of law …. 23.15–23.23 capacity and powers …. 23.19 internal management …. 23.22–23.23 members’ rights and liabilities …. 23.20–23.21 validity of incorporation …. 23.17–23.18 foreign orders, recognition and enforcement of …. 23.24–23.26 588



Index

generally …. 23.1–23.3 insolvency see Corporate insolvency jurisdiction …. 23.4–23.14 as of right …. 23.4–23.6 courts …. 23.7 restraints on proceedings …. 23.8–23.14 restraints on proceedings …. 23.8–23.14 international proceedings …. 23.11–23.14 trans-Tasman proceedings …. 23.10 within Australia …. 23.8–23.9 winding up foreign corporations …. 24.25–24.31 Corporations Act 2001 (Cth) …. 23.1–23.2, 23.4–23.5, 23.7–23.9, 23.18 Cross-vesting scheme aims …. 2.28 application of …. 2.29 interpretations …. 12.36 interstate laws …. 12.30–12.36 interstate proceedings …. 4.59–4.60, 4.62–4.63 jurisdiction …. 2.28–2.36 conferral of …. 2.30 personal jurisdiction …. 2.31–2.34 narrow interpretation …. 12.36 objectives …. 2.28 operation of …. 12.31–12.36 participation by courts …. 2.30 reform …. 12.36 restraints on proceedings see Restraints on proceedings service of process under …. 2.33

movable property …. 20.26–20.27 multiple transfers …. 21.29–21.30 simple contract debts …. 20.10, 20.28 single involuntary transfers …. 21.28 single voluntary transfers capacity …. 21.27 validity …. 21.23–21.26 specialities …. 20.11–20.12, 20.28 transfer of …. 21.21–21.30 capacity for …. 21.27 classification of …. 21.22 generally …. 21.3 law of cause …. 21.21 multiple transfers …. 21.29–21.30 single involuntary transfers …. 21.28 single voluntary transfers …. 21.23–21.27 validity …. 21.23–21.26 Deceased estates administration of …. 22.14–22.16 ancillary …. 22.16 generally …. 22.1 jurisdiction …. 2.88–2.89 letters of …. 2.88 principal …. 22.15 re-sealing of grants …. 22.11 administrator …. 22.3 assets, recovery of …. 22.1 beneficial interests classification of …. 20.34 intangible property …. 20.18, 20.34 movable property …. 20.34 court orders …. 22.1 debts, payment of …. 22.1 distribution of …. 22.1 executor …. 22.3 forum …. 2.88–2.89 personal representatives accountability …. 22.13 administration by …. 22.14 appointment of …. 22.1, 22.7–22.13 generally …. 22.1 jurisdiction …. 2.88–2.89 probate, grant of …. 2.88, 22.11 refusal to confirm …. 22.12 reversionary interests …. 21.33–21.34 rights under beneficial …. 20.18 enforcement of …. 20.18

D

Damages substance and procedure …. 7.39–7.45 benefits already received …. 7.44 instalment, payments …. 7.42 interest on damages …. 7.43 uncertain matters …. 7.42 De facto relationships state laws …. 13.1 Debts choice of law …. 20.10–20.15, 21.21 deed, created by …. 20.11–20.12 judgment debts …. 20.13, 20.28 law of place …. 21.21 mortgage debts …. 20.14–20.15, 20.29 589





Private International Law in Australia

Deceased estates — cont’d service of process …. 2.88–2.89 title to …. 2.88 transfer of interests …. 21.33–21.34 Defamation choice of law …. 18.15, 18.17–18.23 foreign defamation …. 18.22–18.23 location …. 18.15 publication …. 18.15 within Australia …. 18.15, 18.18–18.21 jurisdiction damage to reputation, requirement of …. 2.71–2.72, 2.74 international …. 2.70–2.74 internet …. 2.66, 2.70–2.73 location of tort …. 2.66, 2.69–2.74 publication …. 2.72 service of process …. 2.66, 2.67 Defences contractual …. 18.47 statutory …. 18.47 Dependence, domicile of …. 10.17–10.22 generally …. 10.6–10.7 married women …. 10.20–10.21 mental incapacity …. 10.22 minors …. 10.18–10.19 Diplomatic immunity administrative and technical staff and families …. 3.29–3.30 claim of …. 3.28 consular immunity …. 3.28, 3.31–3.32 entitlement to …. 3.28 consular officers …. 3.31–3.32 determination of …. 3.28 diplomatic agent …. 3.29–3.30 duration of …. 3.33–3.34 entitlement to …. 3.28 recognition of …. 3.28 scope of …. 3.29 service staff …. 3.29–3.30 waiver of …. 3.34 Dissolution of marriage see Divorce Diversity jurisdiction …. 2.18–2.23 establishment of …. 2.19–2.20 exercise of …. 2.18, 2.21–2.22 Divorce choice of law …. 14.13

decree of Australian …. 14.16–14.17 foreign decrees …. 14.19–14.23, 14.43–14.50 New Zealand …. 14.18 personal connection …. 14.24–14.42 recognition of …. 14.1, 14.16–14.42 unrecognised foreign decrees …. 14.43–14.50 jurisdiction …. 14.4 maintenance and property see Maintenance and property testate succession, revocation by immovable property …. 22.33 movable property …. 22.47 Domicile choice, of …. 10.23–10.31 generally …. 10.6–10.7 illegal residents …. 10.29 refugees …. 10.28 revival of original domicile …. 10.30–10.31 temporary residents …. 10.28 concept of …. 10.3, 10.7 country, of …. 10.9 dependence, of …. 10.17–10.22 generally …. 10.6–10.7 married women …. 10.20–10.21 mental incapacity …. 10.22 minors …. 10.18–10.19 dual …. 13.32–13.33, 13.37–13.38 jurisdiction …. 2.48, 10.2, 10.8 law of cause, identification of …. 10.1, 10.4–10.5 marriage, for …. 13.32–13.33, 13.37–13.38 matrimonial proceedings, for …. 14.28 origin, of …. 10.10–10.16 generally …. 10.6–10.7 revival of …. 10.30–10.31 recognition and enforcement of foreign judgments …. 5.19 reform …. 10.71–10.74 service of process …. 2.48 Double renvoi …. 8.21–8.35 shortcomings …. 8.31–8.35 succession on death …. 8.28–8.30 torts …. 18.7, 18.9 590





Index expansion of …. 2.102–2.105 New Zealand …. 2.37–2.38

E

Equitable claims choice of law …. 19.5–19.13 breach of confidence …. 19.7 forum-centrism …. 19.5, 19.6 fraudulent and unconscionable conduct …. 19.8 multi-state claims …. 19.5 equitable defences …. 19.14 foreign law, application …. 19.10 jurisdiction in Equity …. 19.2–19.4 Australian superior courts …. 19.3 declining jurisdiction …. 19.3 in personam jurisdiction …. 19.4 law of the forum, role of …. 19.2, 19.5, 19.6, 19.7, 19.11 exception, categories …. 19.9, 19.13 private international law, and …. 19.11 remedies …. 19.15 anti-suit injunction …. 19.16 law of the cause …. 19.15 tracing property …. 19.17 Estoppel foreign judgments …. 5.39–5.42 Evidence foreign laws see Foreign laws interstate law …. 9.29–9.30 substance and procedure …. 7.31 Exclusion of unacceptable laws confiscation laws …. 8.51 expropriation laws …. 8.48–8.51 confiscation, laws …. 8.51 nationalisation, laws …. 8.49–8.50 foreign government interests …. 8.52–8.56 injustice in circumstances of case …. 8.63 morally unacceptable …. 8.64 nationalisation laws …. 8.49–8.50 overview …. 8.36 penal laws …. 8.39–8.43 public policy …. 8.57–8.69 revenue laws …. 8.44–8.47 seriously detrimental to forum interests …. 8.61–8.62 unrecognised states …. 8.37–8.38 Extraterritorial jurisdiction cause of action arising in the forum …. 2.64 conferral of …. 2.5

F

Family Court of Australia jurisdiction cross-vesting …. 14.11 custody of children …. 15.2 subject matter …. 2.3 Family Court of Western Australia jurisdiction …. 14.11, 15.2, 15.6 Family Law Act 1975 (Cth) …. 15.2, 15.59–15.65, 16.5, 16.12, 16.18–16.19, 16.22–16.23 Family Law Amendment Act 2008 (Cth) …. 16.2 Federal Court of Australia jurisdiction extraterritorial …. 2.39 leave to serve …. 2.40 personal …. 2.17, 2.32 subject matter …. 2.3 Foreign Corporations (Application of Laws) Act 1989 (Cth) …. 23.1, 23.14–23.17, 23.19–23.22 Foreign courts exclusive jurisdiction clauses …. 4.90 referral of question to …. 9.16–9.22 restraints on proceedings see Restraints on proceedings stay of proceedings …. 4.89 Foreign immovables jurisdiction …. 3.2–3.11 Moçambique principle …. 3.2–3.11 Foreign judgments definition …. 5.46 effect of …. 5.1–5.7 enforcement of see Recognition and enforcement of foreign judgments estoppel and …. 5.39–5.42 final and conclusive …. 5.22, 5.40, 5.46 fixed sum …. 5.23–5.24 foreign competition judgments …. 5.38 fraud …. 5.26–5.30, 5.63 identical parties …. 5.25 incompatible judgments …. 5.37, 5.68 international jurisdiction see International jurisdiction natural justice …. 5.31–5.33, 5.64–5.66 591



Private International Law in Australia

Foreign judgments — cont’d public policy …. 5.34–5.35, 5.67 recognition of see Recognition and enforcement of foreign judgments registration see Registration of foreign judgments service of process …. 2.90–2.91 Foreign jurisdiction agreements breach of exclusive agreement …. 4.28 exclusive forum for litigation …. 4.17 commercial contracts …. 4.25 foreign courts …. 4.17–4.27, 4.90 non-commercial contracts …. 4.26–4.27 non-enforcement of exclusive agreement …. 4.18–4.27 inconvenience to third parties …. 4.21 issues in dispute not covered by agreement …. 4.22 lack of subject matter jurisdiction …. 4.17 matters beyond scope of agreement …. 4.21 multiplicity of litigation, avoidance …. 4.22 non-contractual claims …. 4.24 proper law of contract, interpretation …. 4.22 public policy, offends …. 4.19–4.20 third parties, involvement …. 4.25 non-exclusive agreement …. 4.29 Foreign laws application of …. 1.28, 1.33, 1.34–1.35, 8.36–8.69 Australian state and territory laws …. 9.29–9.30 determination of …. 9.27–9.28 evidence of …. 9.10–9.28 determinations …. 9.27–9.28 documentary sources …. 9.23–9.26 expert witnesses …. 9.10 judicial notice …. 9.11–9.15 referral to foreign court …. 9.16–9.22 exclusion of unacceptable laws …. 8.36–8.69 breach of public international law …. 8.65–8.69 confiscation laws …. 8.51 expropriation laws …. 8.48–8.51 foreign government interests …. 8.52–8.56

injustice in circumstances of case …. 8.63 morally unacceptable …. 8.64 nationalisation laws …. 8.49–8.50 penal laws …. 8.39–8.43 public policy …. 8.57–8.69 revenue laws …. 8.44–8.47 seriously detrimental to forum interests …. 8.61–8.62 unrecognised states …. 8.37–8.38 fact, as …. 9.9 interpretation of …. 9.6–9.8 matrimonial decree, non-compliance with …. 14.49–14.50 precedent, as …. 9.9 presumption of identity …. 9.3–9.5 foreign statutes, interpretation …. 9.6–9.8 proof of …. 9.1–9.30 recognition of …. 1.34 status of …. 9.1–9.9 statutes …. 12.23–12.27 Foreign parenting orders jurisdiction …. 15.66 multi-state …. 15.70 parental responsibility, conferral of …. 15.67 proceedings …. 15.68 recognition of …. 15.66–15.70 registration of …. 15.71–15.77 Hague Child Protection Convention …. 15.71 Part VII registration …. 15.72–15.77 Foreign proceedings insolvency, recognition of …. 24.7–24.10 notice of …. 5.32 Foreign state immunity …. 3.12–3.27 determination of …. 3.13–3.14 exceptions …. 3.14, 3.17–3.26 foreign state defined …. 3.15–3.16 ‘separate entity’ …. 3.16 immunity from execution …. 3.27 Forum agreements see Jurisdiction agreements Forum non conveniens application of …. 4.48–4.49 appropriate forum …. 4.35 Australian approach …. 4.39–4.47 criticisms of …. 4.95 doctrine of …. 4.49 592



Index

interstate proceedings …. 4.75 maintenance and property …. 16.7 matrimonial causes …. 14.7–14.8 procedure …. 4.48–4.52 relevant factors …. 4.54 restraint of proceedings …. 4.32–4.57, 4.75 service of process …. 4.48 Spiliada approach …. 4.34–4.38 trans-Tasman litigation …. 4.55–4.57 Forum shopping discouraging …. 2.23 High Court …. 2.21 Fraud foreign judgments see Foreign judgments Full faith and credit …. 11.3–11.20 effect of Constitution …. 11.16–11.20 effect on choice of law rules …. 11.8–11.13 meaning under Constitution …. 11.14–11.15 no public policy exclusion …. 11.4–11.7 registration of interstate judgments …. 5.69–5.71

rights of custody …. 15.39 risk of harm …. 15.47–15.52 settlement into new environment …. 15.41–15.43 wrongful removal or retention of child …. 15.37–41 Hague Convention on the Law Applicable to Maintenance Obligations …. 16.15, 16.18 Hague Child Protection Convention application of …. 15.1–15.2 central authorities …. 15.10 children …. 15.11 choice of law …. 15.63–15.66 classification …. 15.62 parental responsibility …. 15.63–15.64 renvoi …. 15.64 Convention countries …. 15.9 foreign parenting orders, registration of …. 15.72 habitual residence …. 15.12 jurisdiction …. 15.8–15.17 exceptions …. 15.16–15.17 personal protection measures …. 15.13–15.15 High Court of Australia appeals …. 15.26 forum shopping …. 2.21 jurisdiction …. 2.17–2.23 diversity …. 2.18–2.23 extraterritorial …. 2.39 leave to proceed …. 2.43–2.44 original …. 2.17–2.18 remission of …. 2.22–2.23 Historical development …. 1.9–1.26 ancient approaches …. 1.9 Australian perspective …. 1.23–1.26 institutional writing as a source of law …. 1.18 judicial development in England …. 1.19–1.22 scholarly development …. 1.10–1.17

H

Habitual residence see also Residence …. 10.62–10.70 Hague Child Abduction Convention application of …. 15.1–15.2, 15.28–15.29 central authorities …. 15.33–15.36 countries …. 15.31 excusable removal or retention of child …. 15.44–15.55 failure to exercise right of custody …. 15.45 habitual residence …. 15.30, 15.32 human rights and fundamental freedoms …. 15.54 intolerable situations …. 15.47–15.52 jurisdiction …. 15.7, 15.28 objections of child …. 15.53 removal or retention of child consent or acquiescence …. 15.46 excusable …. 15.44–15.55 wrongful …. 15.37–15.41 return of child …. 15.40 excusable removal or retention, where …. 15.44–15.55 refusal of …. 15.44–15.55 rights of access …. 15.56–15.58

I

ICSID Convention …. 6.40 Immovable property beneficial interests in trusts as …. 20.33 classification of …. 20.1–20.4 593





Private International Law in Australia

Immovable property — cont’d intestate succession …. 22.18 land as …. 20.24 leases as …. 20.25 property in the forum …. 2.81 testate succession see Testate succession transfer of property …. 21.3–21.7 Immunity consular …. 3.28, 3.31–3.32 diplomatic see Diplomatic immunity foreign state …. 3.12–3.27 determination of …. 3.13 exceptions …. 3.14, 3.17–3.26 foreign state defined …. 3.15–3.16 jurisdiction, from see Jurisdiction spousal classification of …. 18.37 common law, at …. 18.37 law of the place …. 18.37 Indemnity see also Compensation choice of law …. 18.38–18.39 injury or damage …. 18.41 obligation …. 18.38–18.39 proper law …. 18.38 Inferior courts interstate proceedings …. 4.76–4.80 stay of …. 4.77–4.80 transfer of …. 4.76 Injunctions anti-suit see Anti-suit injunctions Insolvency see Corporate insolvency Insurance claims, subrogation of …. 18.41 compulsory third party (CTP) …. 18.35–18.36 contracts …. 17.48 motor vehicle …. 18.35 policy …. 18.41 Intangible property debts judgment debts …. 20.13, 20.28 mortgage debts …. 20.14–20.15, 20.29 simple contract debts …. 20.10, 20.28 specialities …. 20.11–20.12, 20.28 deceased estates, beneficial interests …. 20.18, 20.34 intellectual property …. 20.20, 20.31 partnership interests …. 20.17, 20.32 shares …. 20.16, 20.30

trusts, beneficial interests …. 20.18, 20.33 Intellectual property classification …. 20.20, 20.31 forum …. 2.81 intangible property …. 20.20, 20.31 Moçambique principle …. 3.5 rights …. 2.81 International arbitration applicable law …. 6.15–6.25 amiable composition …. 6.18 arbitration agreement …. 6.20 express choice of law …. 6.16 lex mercatoria …. 6.17 mandatory rules …. 6.16 Model Law …. 6.23–6.25 no express choice of law …. 6.19 procedure …. 6.21–6.25 seat of arbitration …. 6.21–6.22 substance …. 6.16–6.19 enforcement of agreements …. 6.1–6.14 arbitrability …. 6.5 invalid and inoperative agreements …. 6.13–6.14 matter capable of settlement by arbitration …. 6.4–6.14 scope of agreement …. 6.6–6.8 third parties …. 6.9–6.12 writing requirement …. 6.3 enforcement of awards …. 6.26–6.39 arbitrability …. 6.37 award set aside or not binding …. 6.35 defences …. 6.29–6.38 excess of jurisdiction …. 6.33 foreign awards …. 6.27–6.38 formalities …. 6.28 inability to present case …. 6.32 incapacity of party …. 6.30 inconsistent composition or procedure …. 6.34 invalidity of agreement …. 6.31 lack of notice …. 6.32 Model Law …. 6.39 public policy …. 6.38 stay of enforcement …. 6.36 investor–state arbitration …. 6.40 International Arbitration Act 1974 (Cth) …. 6.1–6.3, 6.9, 6.13, 6.20, 6.23–6.29, 6.33, 6.35–6.36, 6.38–6.40 594



Index

International Chamber of Commerce …. 6.17, 6.25 International company law see Corporations International conventions application of …. 13.2 custody of children …. 15.1–15.2, 15.7–15.17, 15.28–15.58, 15.61–15.65 Hague Child Abduction Convention see Hague Child Abduction Convention Hague Convention on the Law Applicable to Maintenance Obligations …. 16.15 Hague Convention on the Protection of Children see Hague Child Protection Convention service, method of …. 2.96 International family law custody of children see Custody of children Maintenance see Maintenance and property marriage see Marriage parenting orders see Parenting orders property see Maintenance and property International jurisdiction cases …. 2.37–2.94 generally …. 2.1 grounds of …. 2.44–2.91 leave to proceed …. 2.43–2.46 leave to serve …. 2.40 method of service …. 2.95–2.101 recognition and enforcement of foreign judgments …. 5.11–5.21 citizenship …. 5.19 definition …. 5.11 domicile …. 5.19 establishment of …. 5.11 forum clause …. 5.15 presence …. 5.12–5.13 property …. 5.18 real and substantial connection …. 5.21 reciprocal jurisdictions …. 5.11, 5.20 residence …. 5.19 rules …. 5.11 submission …. 5.14–5.17 unclassified proceedings …. 5.61 registration of foreign judgments …. 5.56–5.61



in personam proceedings …. 5.57–5.59 in rem proceedings …. 5.60 unclassified proceedings …. 5.61 International proceedings jurisdiction …. 2.37–2.101 grounds of …. 2.44–2.91 method of service …. 2.95–2.101 service of process …. 2.40–2.43 restraint of …. 4.3 Interstate cases choice of law see Choice of law cross-vested jurisdiction …. 2.28–2.36 determination of …. 2.17 hearing …. 2.17 jurisdiction …. 2.17–2.36 cross-vested …. 2.28–2.36 diversity …. 2.18–2.23 generally …. 2.1 legislative …. 2.24–2.27 service of initiating process …. 2.17 service of process …. 2.17, 2.24–2.27 Interstate discrimination …. 11.21–11.25 Interstate judgments enforcement of …. 2.2, 5.5, 5.72 full faith and credit …. 5.69–5.71 recognition of …. 5.70–5.71 registration of …. 5.72–5.75 defences to …. 5.75 forum for …. 5.73–5.74 procedures for …. 5.72–5.75 setting aside …. 5.75 Interstate law cross-vesting scheme see Cross-vesting scheme proof of …. 9.29–9.30 recognition of …. 12.28–12.29 Interstate proceedings cross-vesting jurisdiction …. 4.59–4.60, 4.62–4.63 forum non conveniens …. 4.75 inferior courts …. 4.76–4.80 interests of justice …. 4.68–4.74 related proceedings …. 4.64–4.66 stay of …. 4.77–4.80 superior courts …. 4.59–4.74 transfer of …. 4.76 Intestate succession immovable property …. 22.18 movable property …. 22.35 595



Private International Law in Australia conferral of …. 2.5 New Zealand …. 2.37–2.38 Family Court of Australia cross-vesting …. 14.11 parental responsibility …. 15.2 Family Court of Western Australia …. 14.11, 15.2, 15.6 Federal Court of Australia extraterritorial …. 2.39 leave to serve …. 2.40 personal …. 2.17, 2.32 federal courts …. 2.17, 2.29 foreign parenting orders see Foreign parenting orders grounds of …. 2.44–2.91 contracts …. 2.50–2.63 foreign judgments and awards …. 2.90–2.91 freezing or ancillary order …. 2.93–2.94 injunctions …. 2.92 interim and ancillary relief …. 2.92–2.94 personal connections …. 2.48, 10.2, 10.8, 10.54, 10.58 probate and administration …. 2.88–2.89 property …. 2.81–2.87 submission to jurisdiction …. 2.49 wrongs …. 2.64–2.80 Hague Child Abduction Convention …. 15.7, 15.28 Hague Child Protection Convention …. 15.8–15.17 harmonised rules of court …. 2.47 service ex iuris …. 2.47 High Court see High Court of Australia immunity from …. 3.12–3.34 consular …. 3.28, 3.31–3.32 diplomatic …. 3.28–3.30 execution of judgments …. 3.27 foreign state …. 3.12–3.27 generally …. 3.1 international see International jurisdiction international proceedings …. 2.37–2.101 grounds of …. 2.44–2.91 method of service …. 2.95–2.101 service of process …. 2.40–2.43

J

Judgments enforcement of …. 2.2 foreign see Foreign judgments internationally …. 2.2 interstate see Interstate judgments jurisdiction, relationship with …. 1.2 Jurisdiction agreements see Jurisdiction agreements annulment of marriage …. 14.5 appropriate …. 2.23 challenge to …. 2.32 common law, at …. 2.1, 2.3–2.16 corporations …. 23.4–23.14 as of right …. 23.4–23.6 courts …. 23.7 restraints on proceedings …. 23.8–23.14 court diversity …. 2.18–2.23 establishment of …. 2.6–2.16 leave to proceed …. 2.43–2.46 leave to serve …. 2.40 personal …. 2.2 Service and Execution of Process Act 1992 (Cth) …. 2.27 cross-vested …. 2.28–2.36 conferral of …. 2.30 personal jurisdiction …. 2.31–2.34 common law …. 15.18 courts …. 15.19–15.21 federal …. 15.2, 15.59–15.65 international …. 15.1–15.2, 15.7–15.17, 15.28–15.58 state …. 15.6 decline, discretion to …. 2.2 definition of …. 2.1 determination of …. 2.1–2.2, 2.17 diversity …. 2.18–2.23 establishment of …. 2.19–2.20 exercise of …. 2.18, 2.21–2.22 divorce …. 14.4 establishment of …. 2.6–2.16 presence, by …. 2.6–2.12 submission, by …. 2.13–2.16 exclusive …. 4.90–4.91 exercise of …. 2.2–2.3 extraterritorial cause of action arising in the forum …. 2.64 596





Index

interstate cases cross-vested …. 2.28–2.36 diversity …. 2.18–2.23 generally …. 2.1 legislative …. 2.24–2.27 judgments, relationship with …. 1.2 legislative …. 2.24–2.27, 2.79–2.80 limitation of …. 4.1–4.97 maintenance and property see Maintenance and property marriage …. 14.4–14.12 matrimonial actions …. 14.4–14.12 courts …. 14.11 order, recognition of …. 14.1 rules of jurisdiction …. 14.1–14.2 stay of proceedings …. 14.6–14.8 matrimonial causes see Matrimonial causes meaning of …. 2.1 method of service …. 2.95–2.101 multi-state cases …. 2.1–2.2, 2.39 New Zealand …. 2.37–2.38 international cases not involving …. 2.39 original …. 2.17 parental responsibility …. 15.4–15.27 personal …. 2.17, 2.27, 2.31–2.34 presence for …. 2.6–2.12 abuse of court process …. 2.10 initiating process …. 2.7 service of writ …. 2.8 temporary presence …. 2.9 reciprocal …. 5.11, 5.20, 14.33–14.38 remission of …. 2.22–2.23 rules of …. 2.1–2.2 subject matter …. 2.31–2.32, 2.35–2.36 submission to …. 2.13–2.16 acceptance of service …. 2.14 conduct, by …. 2.15–2.16 grounds for, as …. 2.49 personal …. 2.4 succession …. 22.4–22.6 Jurisdiction agreements asymmetric …. 4.30 breach …. 4.28 enforcement …. 4.12, 4.13 exclusive agreements …. 4.15 foreign see Foreign jurisdiction agreements

language expressed in …. 4.16 non-commercial contracts …. 4.26–4.27 non-exclusive agreements …. 4.15, 4.29 overview …. 4.11–4.16 prorogation agreements …. 4.29 scope of …. 4.17–4.25 separate from main contract …. 4.14 trans-Tasman proceedings …. 4.26 unilateral agreements …. 4.30

L

Land choice of law …. 20.6 classification of …. 20.24 immovable property …. 20.24 jurisdiction …. 2.82–2.83 possession of …. 2.83 security interest …. 2.83 service of process …. 2.82–2.83 tangible property …. 20.6, 20.24 title to …. 2.83 Leases choice of law …. 20.7 immovable property …. 20.25 leasehold interest …. 20.7 personal property …. 20.25 tangible property …. 20.7, 20.25 Legislation enforcement of …. 2.79–2.80 interpretation of …. 2.79–2.80 Lex mercatoria …. 6.17 Limitation periods substance and procedure …. 7.47–7.49 Lis alibi pendens application of …. 4.53

M

Maintenance and property anti-suit injunctions …. 16.8–16.9 choice of law …. 16.14–16.15 foreign orders, recognition and enforcement of …. 16.16–16.23 Australia–New Zealand Agreement …. 16.18, 16.22 Australia–United States Agreement …. 16.18, 16.23 maintenance orders …. 16.18 New York Maintenance Convention …. 16.21 597



Private International Law in Australia

Maintenance and property — cont’d orders registered before 1 July 2000 …. 16.19 orders registered from 1 July 2000 …. 16.20 property orders …. 16.16–16.17 generally …. 16.1–16.3 jurisdiction …. 16.4–16.13 as of right …. 16.4 courts …. 16.12–16.13 discretionary stay of proceedings …. 16.7 forum non conveniens …. 16.7 limits on …. 16.6 parties …. 16.5 Moçambique principle …. 16.6 Maritime torts high seas, on …. 18.16 littoral jurisdiction …. 18.16 place of tort …. 18.16 Marriage annulment of see Annulment of marriage capacity …. 13.42 choice of law common law rules …. 13.21–13.22 generally …. 13.2–13.3 rules …. 13.41–13.58 common law choice of law rules …. 13.21–13.22 formal validity …. 13.25–13.30 solemnisation, grounds of recognition …. 13.55 concept of …. 13.3, 13.5–13.20, 13.42 dissolution of see Divorce family laws exclusive powers …. 13.1 federal …. 13.1, 14.2 residual powers …. 13.1 state …. 13.1, 14.2 indefinite duration …. 13.9 jurisdiction …. 14.4–14.12 laws, origins of …. 14.1 maintenance and property see Maintenance and property Marriage Amendment (Definition and Religious Freedoms) Act …. 13.3, 13.6, 13.7, 13.10, 13.51 monogamous union …. 13.14–13.20 multi-state …. 13.2, 13.4 non-marriages …. 13.42

remarriage, restraints on …. 13.40 sex or gender of parties …. 13.10–13.12 solemnisation of …. 13.44–13.58 after 7 April 1986 …. 13.48–13.49 before 7 April 1986 …. 13.44–13.47 common law grounds of recognition …. 13.55 from 9 December 2017 …. 13.6, 13.7, 13.10, 13.51 location of …. 14.42 outside Australia …. 13.50–13.58 overseas marriage, specific issues …. 13.56–13.58 recognition of …. 13.51–13.58 same-sex union …. 13.51 statutory grounds of recognition …. 13.52–13.54 testate succession, revocation by immovable property …. 22.33 movable property …. 22.47 validity of …. 13.1–13.60 dual domicile rule …. 13.32–13.33, 13.37–13.38 essential …. 13.31–13.38 formal …. 13.23–13.30 impotence, effect of …. 13.39 intended matrimonial home rule …. 13.34–13.36 pregnancy, effect of …. 13.39 restraints on remarriage …. 13.40 same-sex marriages, overseas …. 13.56 wilful refusal, effect of …. 13.39 void …. 13.39–13.40, 13.43 voluntary union …. 13.8 Marriage Amendment (Definition and Religious Freedoms) Act …. 13.3, 13.6–13.7, 13.10, 13.51 Matrimonial causes annulment of see Annulment of marriage choice of law …. 14.13–14.15 definition …. 14.2 dissolution of marriage see Divorce divorce see Divorce federal responsibility …. 14.2 foreign decrees …. 14.18–14.23, 14.43–14.50 forum non conveniens …. 14.7–14.8 jurisdiction …. 14.4–14.12 courts …. 14.11 marriage …. 14.4–14.12 598



Index

order, recognition of …. 14.1 rules of jurisdiction …. 14.1–14.2 stay of proceedings …. 14.6–14.8 parallel actions for declaration of voidness …. 14.3 personal connections see Personal connections recognition of decrees …. 14.16–14.42 foreign decrees …. 5.31, 5.34 generally …. 14.1 New Zealand …. 14.18 personal connection for …. 14.24–14.42 rules for …. 14.19–14.23 unrecognised foreign decrees …. 14.43–14.50 contrary to public policy …. 14.47–14.48 denial of natural justice …. 14.44–14.46 non-compliance with foreign law …. 14.49–14.50 Misrepresentation fraudulent …. 18.12 international jurisdiction …. 18.12–18.14 misleading conduct …. 2.76 negligent …. 18.12 place of wrong …. 2.75 Moçambique principle foreign immovables, jurisdiction …. 3.2–3.11 Australian Capital Territory …. 3.7 common law claim …. 3.6, 3.10–3.11 New South Wales …. 3.8 personal action …. 3.9–3.10 reform …. 3.11 intellectual property rights …. 3.5 maintenance and property …. 16.6 qualification …. 3.2 title to land …. 3.2–3.11 Mortgages personal property …. 2.85 service of process …. 2.85 Motor vehicle accidents compensation see Compensation compulsory third party insurance …. 18.35–18.36 insurance see Insurance insurers, against …. 18.36

multi-state claims …. 18.36 no-fault compensation scheme …. 18.35, 18.38 nominal defendants …. 18.35 recovery of …. 18.35 statutory defendants …. 18.35 Movable property beneficial interests in trusts as …. 20.33 classification of …. 20.1–20.4 intellectual property …. 20.20, 20.31 intestate succession …. 22.35 leases …. 20.25 mortgage of …. 2.85 partnership interests as …. 20.32 property in the forum …. 2.81 shares as …. 20.30 ships …. 20.27 testate succession see Testate succession transfer of property chattels see Chattels debts see Debts generally …. 21.3

N

Nationalisation laws exclusion of unacceptable laws …. 8.49–8.50 Nationality allegiance …. 10.33 Australian see also Australian citizenship establishment of …. 10.34 participation and contribution …. 10.33 records …. 10.34 citizenship distinguished …. 10.32–10.33 foreign …. 10.49–10.52, 14.29–14.31 multiple nationalities …. 10.53 nationals …. 10.32 personal connection to nation state …. 10.32 Natural justice …. 5.31–5.33 foreign decree see Matrimonial causes foreign judgments see Foreign judgments matrimonial causes …. 14.44–14.46 Negligence place of tort …. 18.11 599





Private International Law in Australia

New York Maintenance Convention …. 16.18, 16.21 New Zealand see Trans-Tasman proceedings

legal constructs …. 10.1 matrimonial causes decree, recognition of …. 14.24–14.42 connected place …. 14.39–14.41 domicile …. 14.28 nationality …. 14.29–14.31 ordinary residence …. 14.26–14.27 presence …. 14.25 real and substantial connection …. 14.32 reciprocal jurisdiction …. 14.33–14.38 requirement of …. 14.24 nationality see Nationality residence see Residence Personal property see Movable property Personal representatives see Deceased estates Power of appointment …. 22.49–22.55 capacity for …. 22.52 essential validity …. 22.53 formal validity …. 22.50–22.51 general …. 22.49 interpretation …. 22.54 revocation of …. 22.55 special …. 22.49 Presumptions substance and procedure …. 7.33 Private international law ‘conflict of laws’, as …. 1.3 definition …. 1.1 foreign country …. 1.6 foreign law …. 1.6 issues arising in …. 1.2 legal relations, regulation of …. 1.5 objectives …. 1.27–1.35 comity …. 1.34–1.35 consistency …. 1.28–1.30 particular justice …. 1.31–1.33 scope …. 1.1 term, use of …. 1.3–1.4 themes …. 1.1–1.8 Privilege substance and procedure …. 7.34 Probate and administration see also Deceased estates grant of …. 2.88, 22.11–22.12 jurisdiction …. 2.88–2.89 letters of, service …. 2.88–2.89 service of process …. 2.88–2.89

O

Ordinary residence see Residence Origin, domicile of …. 10.10–10.16 generally …. 10.6–10.7 revival of …. 10.30–10.31

P

Parental responsibility choice of law …. 15.60–15.66 Hague Child Abduction Convention see Hague Child Abduction Convention Hague Child Protection Convention see Hague Convention on the Protection of Children jurisdiction …. 15.4–15.27 common law …. 15.18 courts …. 15.19–15.21 federal …. 15.2, 15.59–15.60 international …. 15.1–15.2, 15.7–15.17, 15.28–15.58 state …. 15.6 proceedings dismissal of …. 15.24–15.27 stay of …. 15.22–15.27 Parenting orders foreign see Foreign parenting orders jurisdiction …. 15.4 Particular justice …. 1.31–1.33 Partnerships interests classification of …. 20.32 intangible property …. 20.17, 20.32 movable property …. 20.32 law of place …. 20.17 Penal laws exclusion of unacceptable laws …. 8.39–8.43 recognition and enforcement of foreign judgments …. 5.36 Personal connections citizenship see Nationality domicile see Domicile jurisdiction, for see Jurisdiction law of the cause, identification of …. 10.1 600



Index

Proceedings foreign, notice of …. 5.32 in personam …. 5.57–5.59 in rem …. 5.60 inferior courts …. 4.76–4.80 international proceedings, restraint of …. 4.3 interstate see Interstate proceedings restraint on see Restraints on proceedings stay of see Stay of proceedings superior courts see Superior courts transfer of …. 4.76 unclassified …. 5.61 Product liability location …. 2.68 service of process …. 2.68 Property beneficial interest see Deceased estates; Trusts chattels see Chattels choice of law …. 5.18 classification …. 20.21–20.23 debts see Debts division see Maintenance and property foreign country, in …. 5.18 forum …. 2.81 immovable see Immovable property instruments affecting …. 2.84 intangible see Intangible property intellectual …. 2.81 international jurisdiction …. 5.18 land see Land leases see Leases location …. 2.81, 20.5 method of classification …. 20.1–20.4 movable see Movable property partnership interest see Partnerships personal see Movable property possession of …. 2.83 real see Immovable property rights …. 5.18 service of process …. 2.86–2.87 shares see Shares succession see Succession tangible see Tangible property title to …. 2.83 transfer of see Transfer of property trusts



beneficial interests …. 20.18, 20.33 service of process …. 2.86–2.87 Public international law aims of …. 1.5 enforcement of …. 1.5 rules …. 1.5 Public policy foreign decree contrary to …. 5.34, 14.47–14.48 foreign judgments contrary to …. 5.34–5.35, 5.67

R

Real property see Immovable property Recognition and enforcement of foreign judgments …. 5.8–5.42 common law …. 5.8–5.42 defences …. 5.10 four conditions …. 5.9 estoppel …. 5.39–5.42 final and conclusive …. 5.22, 5.40, 5.46 fixed sum …. 5.23–5.24 foreign competition judgments …. 5.38 foreign judgments and awards as basis for jurisdiction …. 2.90–2.91 fraud …. 5.26–5.30, 5.63 generally …. 1.34, 10.2 identical parties …. 5.25 incompatible judgments …. 5.37, 5.68 international jurisdiction see also International jurisdiction …. 5.11–5.21 jurisdiction foreign judgments and awards as basis for …. 2.90–2.91 generally …. 2.2 submission to …. 2.49 natural justice …. 5.31–5.33, 5.64–5.66 penal judgments …. 5.36 public policy …. 5.34–5.35, 5.67 registration and …. 5.49, 5.50, 5.53, 5.54–5.55 revenue judgments …. 5.36 Reform contracts, choice of law …. 17.54–17.57 cross-vesting scheme …. 12.36 domicile …. 10.71–10.74 foreign immovables, jurisdiction …. 3.11 restraints on proceedings …. 4.95 succession …. 22.56 601



Private International Law in Australia

Refugees domicile of …. 10.28 Registration of foreign judgments …. 5.43–5.68 conditions and effect …. 5.47–5.53 enforcement by …. 5.43, 5.48, 5.52–5.53 force and effect …. 5.50 fraud …. 5.63 identical parties …. 5.62 incompatible judgments …. 5.68 international jurisdiction …. 5.56–5.59 in personam proceedings …. 5.57–5.59 in rem proceedings …. 5.60 unclassified proceedings …. 5.61 natural justice …. 5.64–5.66 New Zealand, from …. 5.76–5.77 notice of …. 5.49 proclaimed place …. 5.44 inferior courts …. 5.45 superior courts …. 5.44 public policy …. 5.67 setting aside …. 5.54–5.55 fraud …. 5.63 identical parties …. 5.62 in personam action …. 5.57–5.59 in rem proceedings …. 5.60 incompatible judgments …. 5.68 international jurisdiction …. 5.56–5.61 natural justice …. 5.64–5.66 public policy …. 5.67 unclassified proceedings …. 5.61 stay of …. 5.51 valid …. 5.49 Registration of foreign parenting orders …. 15.72–15.78 Hague Child Protection Convention …. 15.72 Part VII Family Law Act 1975 (Cth) registration …. 15.73–15.78 Registration of interstate judgments …. 5.72–5.75 defences to …. 5.75 forum for …. 5.73–5.74 procedures for …. 5.72–5.75 setting aside …. 5.75 Relationships cross-border …. 1.1 homosexual see Homosexual unions marriage see Marriage

multi-state …. 1.1 significant …. 13.13 Remedies see Substance and procedure Remission power of …. 2.22–2.23 Renvoi, doctrine of choice of law …. 8.13–8.35, 17.5 conflict of conflict rules …. 8.17 contracts …. 17.5 double renvoi …. 8.21–8.35 shortcomings …. 8.31–8.35 torts …. 18.7, 18.9 Hague Child Protection Convention …. 15.65 ignoring …. 8.18 nature of problem …. 8.13 recognising …. 8.19 désistement theory …. 8.19 foreign court theory or double renvoi …. 8.19 ‘Rejecting the renvoi’ …. 8.19 remission and transmission …. 8.14–8.16 torts …. 18.6–18.9 transfer of tangible property …. 21.17 when used …. 8.20 Residence casual …. 10.58 concepts …. 10.54–10.55, 10.57 connection with a place …. 10.54, 10.58 habitual …. 10.62–10.70 concept of …. 10.62–10.63 determination of …. 10.65 generally …. 10.54–10.55 Hague Child Abduction Convention …. 15.31 Hague Child Protection Convention …. 15.12 intermittent …. 10.58 meaning of …. 10.1, 10.56–10.58 ordinary …. 10.59–10.61 child, of …. 15.5 concept of …. 10.60 definition …. 10.59 divorce …. 14.26–14.27 jurisdiction …. 2.48 two or more places …. 10.61 permanent place of abode …. 10.56 presence for …. 10.56, 10.58 purpose of …. 10.60 602



Index

recognition and enforcement of foreign judgments …. 5.19 scope of …. 10.55 service of process …. 2.48 Residents Australian …. 10.58 illegal …. 10.29 natural person …. 2.19 temporary …. 10.28 two or more places …. 10.58 Restraints on proceedings anti-suit injunction see Anti-suit injunctions Australian court …. 4.92–4.93 Australian forum of an, …. 4.2–4.80 corporations …. 23.8–23.14 international proceedings …. 23.11–23.14 trans-Tasman proceedings …. 23.10 within Australia …. 23.8–23.9 foreign court …. 4.1, 4.82–4.91 forum non conveniens …. 4.32–4.57, 4.75 international proceedings …. 4.3 interstate proceedings …. 4.58–4.80 judicial discretion …. 4.1 jurisdiction agreements 4.8–4.31 lis alibi pendens …. 4.53 mandatory rules …. 4.7–4.10 New Zealand, litigation involving …. 4.26, 4.55–4.57 overview …. 4.98 reform …. 4.95–4.97 self-restraint …. 4.2–4.80 Revenue laws exclusion of unacceptable laws …. 8.44–8.47 recognition and enforcement of foreign judgments …. 5.36

application of …. 2.26 effect of …. 2.27 Service of process cross-vested legislation, under …. 2.33–2.34 extraterritorial …. 2.17 federal courts …. 2.17 forum non conveniens …. 4.48 initiating process …. 2.24, 2.26, 2.42 international …. 2.37–2.96 interstate …. 2.17, 2.24–2.27 leave to serve application for …. 2.40 refusal of …. 2.41 legislation …. 2.24–2.27 method of …. 2.95–2.101 New Zealand, in …. 2.37–2.38 notices …. 2.26 outside Australia …. 2.44–2.91 application for …. 2.41 grounds for …. 2.41, 2.77–2.78, 2.92–2.94 interim and ancillary relief, grounds …. 2.92–2.94 leave to proceed …. 2.43–2.46 leave to serve …. 2.40 procedure …. 2.42 personal connection for …. 2.48 taking effect …. 2.26 torts …. 2.66, 2.67, 2.77 Shares classification of …. 20.30 intangible property …. 20.16, 20.30 law of place …. 20.16 movable property …. 20.30 Solemnisation of marriage see Marriage Spousal immunity classification of …. 18.37 common law, at …. 18.37 law of the place …. 18.37 Statute law application of …. 12.1–12.3 cross-vesting scheme see Cross-vesting scheme extraterritorial …. 12.4 foreign laws …. 12.23–12.27 forum statute …. 12.4–12.22 application of …. 12.15–12.22 generally-worded statutes …. 12.9

S

Same sex unions interstate recognition …. 13.59–13.60 overseas, recognition …. 13.56 state and territory role …. 13.1, 13.13 Scission …. 22.2, 22.8–22.10 Sea carriage of goods contracts …. 17.46 Service and Execution of Process Act 1992 (Cth) …. 2.24–2.27 603





Private International Law in Australia

Statute law — cont’d interstate …. 12.28–12.29 under cross-vesting scheme …. 12.30–12.36 rules …. 12.5–12.6 application of …. 12.10–12.14 self-limiting provisions …. 12.1, 12.7–12.8 Statute of frauds contracts …. 17.31 substance and procedure …. 7.35 Stay of proceedings foreign court …. 4.89 inferior courts …. 4.77–4.80 international arbitration, enforcement of agreements …. 6.2–6.14 interstate cases …. 4.75 interstate proceedings …. 4.58–4.80 maintenance and property discretionary stay of proceedings …. 16.7 matrimonial causes …. 14.6–14.8 parenting proceedings …. 15.22–15.28 related proceedings …. 4.53–4.54 Subject matter federal concern, of …. 1.8 Submission to jurisdiction …. 2.13–2.16 acceptance of service …. 2.14 conduct, by …. 2.15–2.16 personal …. 2.4 Subrogation choice of law …. 18.41 right of …. 18.41 Substance and procedure classification burden of proof …. 7.33 creditors’ priorities/rights …. 7.50 cross-vested jurisdiction …. 7.29 damages …. 7.39–7.45 evidence …. 7.31 limitation periods …. 7.47–7.49 mode or conduct of court proceedings …. 7.26–7.28 no ‘unifying principle’ …. 7.28 notice before action provisions …. 7.51 outcome determination …. 7.28 parties to litigation …. 7.36–7.37 presumptions …. 7.33 privilege …. 7.34 remedies …. 7.38 right of appeal …. 7.52 right-remedy distinction …. 7.24–7.25

set-off …. 7.46 statutes of frauds …. 7.35 Succession beneficial …. 22.17–22.48 immovable property …. 22.18–22.34 moveable property …. 22.35–22.48 death, by …. 22.1 estate, to see Deceased estates immovable property …. 22.2 intestate immovable property …. 22.18 movable property …. 22.35 jurisdiction …. 22.4–22.6 movable property …. 22.2 power of appointment …. 22.49–22.55 capacity for …. 22.52 essential validity …. 22.53 formal validity …. 22.50–22.51 general …. 22.49 interpretation …. 22.54 revocation of …. 22.55 special …. 22.49 private international law …. 22.2 reform …. 22.56 property, of …. 20.8, 22.1–22.2 scission …. 22.2, 22.8–22.10 testate see Testate succession testator family maintenance order …. 22.34, 22.48 time of …. 20.8 Superior courts cross-vested jurisdiction …. 2.28–2.36, 4.59–4.74 Supply of goods and services …. 17.49–17.51 Supreme Court jurisdiction …. 2.32–2.33 personal …. 2.32–2.33

T

Tangible property chattels …. 20.8–20.9, 20.26 land …. 20.6, 20.24 leases …. 20.7, 20.25 ships …. 20.9 Testate succession immovable property capacity for …. 22.23 destruction, revocation by …. 22.32 effect of …. 22.26–22.27 604



Index

election …. 22.28–22.29 essential validity …. 22.24 formal validity …. 22.19–22.21 immovable property …. 22.19–22.33 interpretation …. 22.25 marriage, divorce or annulment, revocation by …. 22.33 movable property …. 22.36–22.47 nationality …. 22.21 place of execution …. 22.20 revocation …. 22.30–22.33 will, revocation by …. 22.30 movable property capacity to give …. 22.38 capacity to receive …. 22.39 destruction, revocation by …. 22.46 election …. 22.43 essential validity …. 22.40–22.41 formal validity …. 22.36–22.37 interpretation …. 22.42 marriage, divorce or annulment, revocation by …. 22.47 revocation …. 22.44–22.47 will, revocation by …. 22.45 Testator family maintenance orders application for …. 22.34, 22.48 Torts action in, and jurisdiction …. 2.64–2.78 choice of law rule …. 18.1–18.5 concurrence of liability …. 18.43–18.46 cross-claims …. 18.43 injuries in course of employment …. 18.43–18.44, 18.46 provision of service contracts …. 18.45 contractual defences …. 18.47 contribution …. 18.40 contributory liability …. 18.40 conversion, unlawful interference or detention of goods …. 18.42 defamation see Defamation double renvoi …. 18.7, 18.9 governing law not applied …. 18.24–18.31 claims and defences under forum legislation …. 18.29–18.31 procedural rules …. 18.25–18.27 public policy …. 18.28 indemnity …. 18.38–18.39 insurers, direct action against …. 18.36 interspousal immunity …. 18.37

joint tortfeasor …. 18.40 jurisdiction …. 2.66–2.76 law of place general rule …. 18.10–18.16 interspousal immunity …. 18.37 liability …. 18.40 maritime torts …. 18.16 misleading conduct …. 2.76 misrepresentation …. 18.12–18.14 motor vehicle accidents see Motor vehicle accidents multi-state claims …. 18.41, 18.47 negligence place of tort …. 18.11 nominal defendants …. 18.35 place of tort …. 18.10–18.16 defamation …. 18.15 jurisdiction, and …. 2.66–2.76 maritime torts …. 18.16 misrepresentation …. 18.12–18.14 negligence …. 18.11 product liability and jurisdiction …. 2.68 renvoi …. 18.6–18.9 service of process …. 2.66, 2.67 specific issues …. 18.32–18.42 subrogation, right of …. 18.41 survival of action …. 18.33 unlawful interference or detention of goods, conversion …. 18.42 wrongful death …. 18.34 Trade Practices Act 1974 (Cth) …. 6.6 Transfer of property chattels see Chattels choice of law …. 21.1 contract …. 21.2, 21.7 corporations …. 21.1 debts see Debts derivative claims …. 21.13–21.15 gift, by …. 21.1 goods in transit …. 21.18 immovable property …. 21.3–21.7 living persons …. 21.1 movable property …. 21.8 chattels …. 21.9–21.20 debts …. 21.21–21.30 generally …. 21.3 public policy …. 21.20 renvoi …. 21.17 sale, by …. 21.1 605



Private International Law in Australia Transfer of property — cont’d security interests …. 21.19, 21.35 tangible property …. 21.3, 21.9–21.20 time of …. 20.8 transfer of title …. 21.10–21.11 validity of capacity …. 21.6 chattels …. 20.8–20.9 determination of …. 21.9 essential …. 21.5 formal …. 21.4 Trans-Tasman proceedings corporations …. 23.5–23.6 recognition of orders …. 23.10 restraints on …. 23.10 enforcement of judgments …. 5.6, 5.77 forum non conveniens …. 4.55–4.57 jurisdiction agreements …. 4.26 maintenance …. 16.22 registration of judgments …. 5.76–5.77 service of process …. 2.37–2.38 Trusts beneficial interests classification of …. 20.33 immovable property …. 20.33 intangible property …. 20.18, 20.33 movable property …. 20.33 choice of law …. 19.18 Hague Trusts Convention …. 19.19–19.25 trusts outside scope of …. 19.26–19.28 property beneficial interests …. 20.18, 20.33 service of process …. 2.86–2.87 rights under beneficial …. 20.18, 20.33 enforcement of …. 20.18 law of place …. 20.18, 20.33 personal …. 20.18

U

UNCITRAL Model Law on Cross-Border Insolvency see also Corporate insolvency …. 24.2–24.24 UNCITRAL Model Law on International Commercial Arbitration see also International arbitration …. 6.16–6.19, 6.23–6.26, 6.39 UNIDROIT Principles of International Commercial Contracts …. 6.17 Uniform Customs and Practices on Documentary Credits …. 6.17 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) …. 6.2, 6.26–6.27

V

Validity marriage see Marriage transfer of property see Transfer of property

W

Wills international will …. 22.22 certificate as conclusive evidence …. 22.22 Convention …. 22.22 uniform law …. 22.22 validity …. 22.22 writing requirement …. 22.22 testate succession, revocation by immovable property …. 22.30 movable property …. 22.44 Winding up foreign companies …. 24.25–24.31 Wrongful death action for …. 18.34

606



Index

607



Related LexisNexis Titles Davies, Bell & Brereton, Nygh’s Conflict of Law in Australia, 9th ed, 2013, ISBN 9780409332117 (limp); 9780409332124 (cased)