Table of Contents

WEEK 1 – INTRODUCTION TO THE UNIT – WHY IS CENTRAL TO THE PRACTICE OF LAW? IMPLICATIONS OF THE INTERNET, IN PERSONAM JURISIDCTION...... 7 Chapter 3 – in personam ...... 8 Distillers Co. (Bio-Chemicals) Ltd v Thomspon [1971] AC 458...... 11 WEEK 2 – INTERLOCUTORY RELIEF, FREEZING ORDERS AND ...... 13 Interlocutory relief ...... 13 PT Bayan Resources and BCBC Singapore [2015] HCA 36 ...... 15 INTERLOCUTORY INJUNCTIONS ...... 16 Google v Equustek Solutions, 2017 SCC 34 ...... 16 Chapter 5 – Federal Jurisdiction ...... 18 Diversity Jurisdiction ...... 18 WEEK 3 – CROSS-VESTING AND FORUM SLECTION AGREEENTS ...... 20 Cross-vesting ...... 20 Re Wakim: Ex Parte McNally (1999) 198 CLR 511 ...... 21 Surviving Aspects of Cross-Vested Jurisdiction ...... 21 How a transfer is made ...... 22 Cross-vesting and exclusive forum clauses ...... 23 in cross-vested matters ...... 24 Gleeson v Bank of Queensland [2017] FCA 1302...... 24 Whitelum v Sisters of Mercy [2018] NSWSC 51 ...... 25 Capilano honey v Mulvany [2018] NSWSC 767 ...... 25 Forum selection agreements – chapter 7 ...... 26 Oceanic Sun Line v Fay (1988) 165 CLR 197 ...... 26 Mandatory Forum law ...... 27 7.49 Donohue v Armco [2002] 1 ...... 27 Armacel v Smurfit (2008) 248 ALR 573 ...... 27 Ellinger v Guiness, Mahon [1939] 4 All ER 16 ...... 27 Commercial versus individual ...... 28 Martinez v Bloomberg, 740 F.3d 211 (2d Cir 2014) ...... 28 WEEK 4 – – RESTRAINT OF LOCAL PROCEEDNGS ...... 29 Gleeson v Kong [2018] NSWSC 1275...... 29 Update to Google v Aquustek ...... 29 Forum non conveniens ...... 30 British test for FNC ...... 31 Spiliada Maritime v Consulex [1987] 1 AC 436 [HL] ...... 31 Owusu v Jackson [2005] E.C.R. I-1383 ...... 32 FNC – Australian style ...... 33 Oceanic Sun Line Shipping v fay (1988) 165 CLR 197 ...... 33 Voth v Manildra Flour Mills (1990) 171 CLR 538...... 34 Dow Jones v Gutnick (2002) 194 ALR 433...... 34 Garsec v Sultan of Brunei (2008) 250 ALR 682 ...... 35 Foreign law ...... 35 El Kharouf v El Khaurof [2004] NSWSC 187 ...... 35 Lis alibi pendens – proceedings pending elsewhere ...... 36 Related proceedings ...... 36 TS Production v Drew Pictures (2008) 172 FCR 433 ...... 36 Anchoring effect of local law ...... 36 FNC - Canada ...... 37 FNC – American Style ...... 37 Gulf Oil Corp v Gilbert, 330 US 501 (1947) ...... 37 Koster v Lumbermens Mutual, 330 US 518 (1947) ...... 38 Piper Aircraft Co v Reyno, 454 US 235 (1981) ...... 38 Montgomery v oberti 945 F.Supp.2d 1367 (SD Fl 2013) ...... 38 Atlantic Marine v US district 134 S.Ct 568 (2013) ...... 39 Haaretz.com v goldhar, 2018 scc 28 ...... 39 WEEK 5 - RESTRAINT OF FOREIGN PROCEEDINGS: ANTI-SUIT INJUNCTIONS ...... 40

1 Anti-Suit Injunctions ...... 40 Societe National Industrielle v Lee Kui Jak [1987] 1 AC 871 [HL] ...... 42 CSR Ltd v Cigna (1997) 189 CLR 345 ...... 42 Allstate Life Insurance v ANZ Bank (1996) 64 FCR 55 ...... 42 Pathway Investments v NAB [2012] VSC 495 ...... 43 1. Injunctions to Protect Jurisdiction and Processes of the Court ...... 43 National Mutual v Sentry (1989) 87 ALR 539 [FCA]...... 43 Re Siromath (1991) 25 NSWLR 25...... 43 Qantas Airways v Rolls Royce [2010] FCA 1481 ...... 44 Allstate Life Insurance Co v ANZ Bank (unreported 1995) ...... 44 Sometimes the foreign court pushes back ...... 45 Laker Airways litigation ...... 45 2. Injunctions Granted in Aid of a Legal Right ...... 45 Rights Crested by exclusive Jurisdiction Clause ...... 45 Impact of ...... 46 Ace Insurance v Moose Enterprises [2009] NSWSC 724...... 46 Arbitration Clauses ...... 46 Agreements Not to Sue ...... 46 3. Injunctions to Restrain Vexatious or Oppressive Foreign Proceedings ...... 46 Vexatious and Oppressive ...... 47 QBE Insurance v Hotchin [2011] NSWSC 681 ...... 47 Jones v Treasury Wine Estates [2016] FCAFC 59 ...... 47 Turner v Grovit [2004] ECR I-3565 ...... 48 West Tankers [2009] ECR I-663 ...... 48 TS Production LLC v Drew Pictures [2008] FCAFC 194 ...... 48 WEEK 6 – CHOICE OF LAW THEORIES, PERSONAL CONNECTING FACTORS, AND SELECTION OF THE (LAW OF THE CLAUSE) ...... 49 Variations ...... 50 Paradox ...... 50 Vested rights ...... 51 Local law theory ...... 51 Non-conflicts ...... 52 Interest analysis ...... 52 The false conflict ...... 52 Principles of preference (American) ...... 52 Policy analysis (American) ...... 53 The Better law (American) ...... 53 The conflicts revolution and Australia ...... 53 Australia and interest analysis ...... 53 Kemp v Piper [1971] SASR 25 ...... 54 Australia – The High Court ...... 54 Australian Objectives of choice of law ...... 54 Personal connecting factors ...... 55 1. ...... 55 1. Domicile of origin ...... 55 2. Domicile of dependence ...... 55 3. Domicile of choice ...... 55 2. ...... 56 Foreign nationality ...... 56 3. Residence ...... 56 Characterisation ...... 56 Multi step process – How Australia does EVERY conflict of law problem! ...... 57 Complications ...... 57 Analytic approach ...... 58 Re Korvine’s Trust [1921] 1 Ch 343...... 58 Determination of the connecting factor ...... 59 WEEK 7 – , SUBSTANCE AND PROCEDURE, PROOF OF FOREIGN LAW ...... 60 Renvoi – the conflict of conflict of laws ...... 60 Simmons v Simmons (1917) NSWSC ...... 61 The Australian solution ...... 62

2 Neilson v Overseas Projects Corporation ...... 62 In what types of cases does renvoi apply? ...... 63 O’Driscoll v J Ray McDermott [2006] WASCA 25...... 63 Renvoi and contracts ...... 63 Criticism of Renvoi ...... 64 The – a further complication ...... 64 No Renvoi ...... 65 Single Renvoi ...... 65 Double or Full Renvoi ...... 65 Substance and procedure ...... 66 John Pfeiffer Ltd v Rogerson (2000) 203 CLR 503 ...... 66 Limitations of time – Statute of limitations ...... 66 Modern Australian View ...... 66 Damages and statutory compensation ...... 66 Evidence ...... 67 Statute of frauds ...... 67 Privilege ...... 67 Burdens of proof and presumptions ...... 67 Parties to an action ...... 67 Pleading and proof of foreign law ...... 67 Foreign law is an issue of fact ...... 68 WEEK 8 – EXCLUSION OF FOREIGN LAW AND CHOICE OF LAW IN CONTRACTUAL DISPUTES ...... 70 When foreign law will not be applied ...... 70 1. Refusal to enforce governmental interests ...... 70 What is a foreign state in this context? ...... 70 Revenue laws ...... 71 Penal laws ...... 71 Punitive damages? ...... 71 2. Public policy ...... 71 Public policy – where it can apply ...... 72 Somerset v Stewart ...... 72 3. Mandatory laws ...... 72 Contracts ...... 73 Express choice of law ...... 73 Limits on express choice ...... 73 Summary ...... 74 Choice of law by inference ...... 74 Summary ...... 75 The objective test – where choice of law cannot be inferred ...... 75 Closest and most real connection - factors ...... 75 Objective test and renvoi ...... 76 O’Driscolll v J Ray McDermott [2006] WASCA 25 ...... 76 Mandatory laws of the forum ...... 76 Akai v People’s Insurance (1996) 188 CLR 418 ...... 76 Ability to contract ...... 76 Offer and acceptance ...... 76 Reality of consent ...... 76 Illegality ...... 76 Remedies for breach of contract ...... 77 The Convention for the International Sale of Goods (CISG) ...... 77 If objectively determined choice of law points to an EU state (including UK) ...... 77 Rome 1 ...... 78 Rome 1 – Escape clause – Article 4(3) ...... 78 Contracts and the United States of America ...... 79 WEEK 9 – CHOICE OF LAW – TORTS I ...... 80 Torts ...... 80 Australia, EU and USA ...... 80 Australia – Lex loci delicti ...... 80 Negligence ...... 80 Puttick v Tenon (2008) 238 CLR 265 ...... 81

3 Product liability ...... 81 Distillers v Thompson [1971] AC 458 [Privy Council] ...... 81 Defamation ...... 82 Dow Jones v Gutnick...... 82 Internet defamation ...... 82 Fraud related torts ...... 82 Passing off ...... 83 Inducing breach of contract ...... 83 Daebo International v The Ship Go Star [2012] FCAFC 156...... 83 Tort committed in the forum ...... 83 Substance and Procedure ...... 83 Effect of legislation ...... 83 Contract and tort ...... 84 Sayers v International Drilling [1971] 3 All ER 163...... 84 Vicarious liability ...... 84 Barach v UNSW ...... 85 Right of insurer to indemnity ...... 85 Sweedman v Transport Accident Commission (2006) 226 CLR 362...... 85 United Airlines v Sercel Australia (2012) 289 ALR 682 [NSWCA]...... 85 Right of contribution ...... 85 Fluor Australia v ASC Engineering (2007) 19 VR 458...... 85 Wrongful death cases ...... 86 Dyno Wesfarmers v Knuckey [2003] NSWCA 375 ...... 86 Survival of actions ...... 86 Australian consumer law ...... 86 Torts committed in sea or air ...... 86 Lazarus v Deutsche Lufthansa (1985) 1 NSWLR188...... 86 Union Shipping v Morgan ...... 86 Gordon v Norwegian Capricorn Line [2007] VSC 517...... 87 Law of the ...... 87 Rome 11 – Article 4 ...... 87 Interaction of contract and tort under Rome II ...... 88 Hurtado v Superior Court, 522 P.2d 666 (1974) (en banc) ...... 88 Interest analysis updated to comparative impairment ...... 89 McCann v Foster Wheeler, 48 Cal.4th 68 (2010) ...... 89 Interest Analysis Comparative Impairment ...... 90 WEEK 10 - CHOICE OF LAW – RESTITUTIONARY CLAIMS AND EQUITABLE OBLIGATIONS - DEPECAGE ...... 92 Restitution (unjust enrichment) ...... 92 Restitution in Australia ...... 92 Sweedman v Transport Accident Commission (2006) 226 CLR 362...... 92 Other common law states ...... 93 Arab Monetary Fund v Hashim [1996 CA] ...... 93 Minera Aquiline Argentina v IMA Exploration [2007 Supreme Court of Canada] ...... 93 Barrick Gold Corp v Goldcorp [2011 Supreme court of Ontario] ...... 94 Australia today ...... 94 Equitable obligations ...... 94 National Commercial Bank v wimborne [1978 NSW equity division] ...... 94 United States Surgical v Hospital Products [1982 NSWSC] [1983 NSWCA] ...... 95 Attorney General for UK v Heineman publishers (1988) 165 CLR 30; (1987) 8 NSWLR 341 ...... 95 Augustus v Permanent Trustee co (1971) 124 CLR 245 ...... 95 Paramasivam v Flynn (1998) 90 FCR 489 ...... 95 Rickshaw Investments v Nicolai Baron von Uexkull [2007] 1 SLR 377 ...... 96 Depecage ...... 96 Rataplan v Commissioner of Taxation [2004] FCA 920 ...... 96 Winter v Novartis Pharmaceuticals, 739 F.3d 405 (8th Cir. 2014) ...... 98 Chen v L.A. truck Centers, 7 cal. App.5th 757 (2017), review granted by Supreme Court ...... 98 Hebrew University of Jerusalem v General Motors, 903 F.Supp.2d 932 (C.D. Cal. 2012) ...... 101 WEEK 11 – THE AMONG NATIONS ...... 103 Comity – an accepted definition ...... 103 Hilton v Guyot, 159 U.S. 113, 164-164 (1895) ...... 103

4 Comity goes far beyond recognition of judgments ...... 103 Animal Science Products v Hebei Welcome Pharmaceutical, 583 U.S. __ (2018) (Vitamin C Case) ...... 104 10 point balancing test [US] ...... 105 TS Production v Drew Pictures (2008) 172 FCR 433 ...... 106 Heriot v Byrne ...... 107 Macquarie Bank v Berg [1999] NSWSC 526 ...... 107 X v Twitter [2017] NSWSC 1300 ...... 108 Comity and Google v Equustek ...... 108 Google v Equustek [2014] BCSC 1063, 2015 BCCA 265, 2017 SCC 34 ...... 108 Google v Equustek, USDC N.D. Cal. (Nov 2017) ...... 109 Google v Equustek, 2018 BCSC 610 ...... 110 Hassell v Bird, 234 cal.Rptr3d 867 (July 2018) ...... 110 Google v Equustek conclusion ...... 111 Comity – Quo Vadis? [where are you going?] ...... 111 WEEK 12 – ENFORCEMENT OF FOREIGN JUDGMENTS AT COMMON LAW AND BY STATUTE ...... 112 Recognition and enforcement of foreign judgments ...... 112 Means of recognition and enforcement ...... 112 Common Law recognition ...... 112 Burden or onus of proof ...... 113 Condition 1 - Jurisdiction ...... 113 Jurisdiction in an international sense ...... 113 Place or residence of the defendant ...... 113 What about Corporations? ...... 114 Voluntary submission ...... 114 Section 11 – Foreign Judgments Act 1991 (Cth) ...... 114 Jani King Franchising v Jason [2013] QSC 155 ...... 115 Submission by agreement - contracts ...... 115 Condition 2 – must be final ...... 115 Bank Polska Kasa Opieka Spolka v Opara (2010) 238 FLR 309, ...... 115 Default judgments ...... 116 Condition 3 – Identity of the parties ...... 116 Newcom Holdings v Funge Systems [2006] ...... 116 Mobi Light v KK Machinery [2010] WADC 105 ...... 116 Condition 4 – Judgments must be for a fixed sum ...... 116 Enforcement ...... 116 Two Means of enforcement ...... 116 Marriage of Miller and Caddy, (1986) 84 FLR 169 ...... 117 Issue estoppel ...... 117 Kuligowski v Metrobus (2004) 220 CLR 363 ...... 117 Armacel v Smurfit Stone Container (2008) 248 ALR 573...... 117 Anshun Estoppel ...... 117 Port of Melbourne v Anshun (1981) 147 CLR 589 ...... 117 Foreign judgment defective under foreign law ...... 118 Defences to enforcement ...... 118 Foreign judgment obtained by fraud ...... 118 Foreign judgment contrary to public policy ...... 119 Jenton Overseas Investment v Townsing (2008) 21 VR 241 ...... 119 Stern v NAB [1999] FCA 1421...... 119 Schnabel v Lui [2002] NSWSC 15 ...... 120 Benefit Strategies Group v Prider (2005) 91 SASR 544, ...... 120 Foreign court acted contrary to natural justice ...... 120 Boele v Norsemeter Holding [2002] NSWCA 363 ...... 120 Foreign judgment is penal or a revenue debt ...... 120 De Fontbrune v Wofsy, 838 F.3d 992 (9th Cir 2016) ...... 121 Foreign court acted perversely in refusing to apply the appropriate law ...... 121 Estoppel based on a prior Australian judgment ...... 121 Vervaeke v Smith [1983] 1 AC 145...... 121 Foreign proceedings Act 1984 (Cth) ...... 122 Enforcement of foreign judgments by statute ...... 122 Judgments capable of registration ...... 123 Registration process ...... 123

5 Setting aside registration ...... 123 Effects of registration ...... 124 WEEK 13 – ENFORCEMENT OF JUDGMENTS WITHIN AUSTRALIA/ENFORCEMENT OF FOREIGN ARBITRAL AWARDS ...... 126 Enforcement of judgments within Australia ...... 126 Enforcement of foreign arbitral awards ...... 126 Unicitral model law ...... 126 New York Convention ...... 127 Members ...... 127 When the debtor denies being a party to the arbitration agreement ...... 127 Defences to enforcement under the New York convention ...... 127 Defences to enforcement – OUTSIDE and in addition to the convention ...... 129 Public policy defence ...... 129 Uganda Telecom v Hi-Tech Telecom (2011) 277 ALR 415...... 129 Resort Condominiums International v Bolwell (1993) 118 ALR 655 ...... 129 Some recent New York convention decisions – all us – But same law as in Australia ...... 129 Belize Bank Ltd v Government of Belize, 852 F.3d 1107 (DC Cir 2017) ...... 129 CEEG (Shanghai) Solar Science v Lumos, 829 F.3d 1201 (10th Cir 2016) ...... 130 OJSC Ukrnafta v carpatsky petroleum (2017) 2017 WL 4351758 (USDC S.D. Tex 2017) ...... 131

6 WEEK 1 – INTRODUCTION TO THE UNIT – WHY CONFLICT OF LAWS IS CENTRAL TO THE PRACTICE OF LAW? IMPLICATIONS OF THE INTERNET, IN PERSONAM JURISIDCTION.

NB – Text used for this course was ‘Nygh’s Conflict of Laws in Australia’

Conflict of Laws (AKA Private )

- Perhaps 90% of the applications in Australia are domestic; perhaps 99% are domestic in the USA o In Australia, this mainly relates to inter-state questions (particularly between NSW and Vic because if the amount of commerce between states) o If you apply the wrong law, your client might lose but could’ve won under the other body of law - The court will always ASSUME that the domestic law governs everything o It is the job of the lawyer to raise the issue o If it’s not to their advantage, your opponent won’t raise it - At the end of this course, you should be thinking of a problem the entire way through o Where does the evidence come from? o What court should it be in and why? o What is going to happen with the judgment? o What kind of law should be applied and why? - Need to focus on the methodology has different applications in every area - Our focus is on the laws of ‘States’ – this is a term of art. A State can be Australia or New South Wales; the United States or California. - Australia consists of 9 states or : Commonwealth, 6 States, 2 Territories - On the other hand, France is a single state and applications are international.

Success in this course - We learn this subject piece by piece but keep in mind that conflict of laws problems must be approached by employing all of the doctrines frequently simultaneously. This really comes to the fore in Forum Non Conveniens that actually subsumes all of the topics. - This course requires you to start thinking like a lawyer – making decisions on how to proceed by looking at the likely outcomes from the inception of a problem. - From the viewpoint of a legal practitioner, this is an essential course because it does not lend itself to on-the-job-training. It is means of legal analysis and problem solving. Without a firm grasp of the principles, you will find yourself unable to effectively cope with adversaries who do know the subject.

What we cover in this Course 1. Jurisdiction 2. Freezing Orders 3. Cross vesting 4. Forum selection agreements 5. Forum non conveniens 6. Injunctions in aid of jurisdiction 7. Choice of Laws 8. Enforcement of Judgments

- These 8 topics can be grouped within three categories: o (1) Jurisdiction, o (2) Choice of Law, and o (3) Enforcement of judgment. - Our emphasis will be on the first two although all 3 are essential for the practitioner - The text covers many specific applications of conflict of laws. Here we focus on how conflicts problems are solved and utilise the two most common situations: contract and tort.

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Introduction to the subject

- Broadly – conflict of laws arises whenever the legal systems of more than one jurisdiction (state) have possible relevance to a legal problem. In a federation like Australia, this occurs frequently. In a federation of 50 states like the USA, it is commonplace. o There is not going to be anyone who tells you about this possible relevance – you have to be able to recognise possible relevant jurisdictions - When there are international implications, only rarely is public international law involved. In almost all cases, we must solve international issues through domestic law – that is, private as opposed to public international law. o This is different from public international law – we are solving problems that have international applications solely through the application of local law o There are no treaties or conventions o Solving international law issues through Australian Procedural Law

Conflicts Within Australia

- The laws of the various states vary. What law should be applied to resolve a specific problem? - In some areas, the laws of the States are uniform but certainly not always and the procedural laws vary substantially - Full faith and Credit Clause in Constitution – at one point, it was thought that this might affect choice of laws; it does not. - Much of Chapter 2 is irrelevant and historical and you should not devote substantial attention to it.

Jurisdiction in personam

- Jurisdictional decisions can have a major impact on the ultimate enforceability of judgment - In personam jurisdiction generally refers to the authority of the court over the person of the defendant. This is different from subject matter jurisdiction. - Jurisdiction has lots of different meanings – in this subject, it also has a bunch of meanings o Jurisdiction of a court can mean subject-matter jurisdiction - e.g. challenging the validity of an Austrian patent, you would not do that in the Family Court in Australia o We don’t really deal with this - In this subject, we are talking about the jurisdiction over the particular defendant and the particular dispute o This is a sensitive issue because it usually puts Australia and one other country in conflict with each other o E.g. Americans might take a very different approach to jurisdiction compared to Australia because of their constitution – when you are dealing with the constitution of another country, a lot of things change (can escalate quickly)

Process involved

- Jurisdiction may be either compelled (through service of a writ (summons in the USA)) or by voluntary appearance of the defendant in the court - Under the Service and Execution of Process Act 1992 (Cth), Australia now allows national service of process. o This means that if you want to sue somebody who lives in Tasmania in the Supreme Court of QLD, you can serve him with a writ in Tasmania forcing him to appear in QLD – there is a national authority

8 o ISSUE with this – necessitated a whole other body of law called cross-vesting to correct the problems that were generated from this national authority – otherwise, this could cause an imbalance of power (particularly large v small entities) - The text focuses on Hague Convention - § 3.26 – 3.50. o This relates to mechanics of serving process outside of Australia. This is very practitioner focused and is of little interest in this course. If you need to serve outside Australia, this material becomes essential. o Not essential for our course

§ 3.51 and 3.52 - Australian take a very broad view of in personam jurisdiction.

- Good and Bad o Good – we are able to litigate things in Australia and not have to travel abroad o Bad – can generate judgements that are offensive to other nations (as we will see) – e.g. if the defendant’s assets are located in another country, that judgment has to be enforceable in that other country

3.52 Court Rules

An originating application may be served on a person in a foreign county in a proceeding that consists of or includes any one or more of the kinds of proceedings mentioned in the following table

Item Kind of proceeding in which originating process may be served on a person outside Australia 1 Proceeding based on a arising in Australia This is very broad – you can go serve anybody anywhere in the world with process if it is based on a cause of action arising in Australia 2 Proceeding based on a breach of a contract in Australia 3 Proceeding in relation to a contract that: (a) is made in Australia; or (b) is made on behalf of the person to be served by or through an agent who carries on business, or is resident, in Australia; or (c) is governed by the law of the Commonwealth or of a State or Territory; in which the applicant seeks: (d) an order for the enforcement, rescission, dissolution, rectification or annulment of the contract; or (e) an order otherwise affecting the contract; or (f) an order for damages or other relief in relation to a breach of the contract 4 Proceeding based on a tort committed in Australia 5 Proceeding based on, or seeking the recovery of, damage suffered wholly or partly in Australia caused by a tortious act or omission (wherever occurring) Will look later in the course in determining where a tort occurs – it is not that easy – is it the place of injury? Not necessarily In General Electric, they make a defective jet engine which gets put onto an airbus plane, the mechanics fail to test that engine – Qantas buys the airbus plane and has it repaired in London. The plane crashes due to a defective engine. Where did this tort occur? 6 Proceeding seeking the construction, rectification, setting aside or

9 Item Kind of proceeding in which originating process may be served on a person outside Australia enforcement of: (a) a deed, will or other instrument; or (b) a contract, obligation or liability; affecting property in Australia 7 Proceeding seeking the execution of a trust governed by a law of the Commonwealth, or of a State or Territory, or any associated relief 8 Proceeding that affects the person to be served in relation to the person’s membership of a corporation that carries on business in Australia or is registered in a State or Territory as a foreign company 9 Proceeding in relation to an arbitration carried out in Australia 10 Proceeding in which the Court has jurisdiction, seeking relief in relation to the guardianship, protection, or care, welfare and development of a person under 18 years (whether or not the person is in Australia) 11 Proceeding based on a breach of a provision of an Act that is committed in Australia 12 Proceeding based on a breach of a provision of an Act (wherever occurring) seeking relief in relation to damage suffered wholly or partly in Australia 13 Proceeding in relation to the construction, effect or enforcement of an Act, regulations or any other instrument having, or purporting to have, effect under an Act 14 Proceeding in relation to the effect or enforcement of an executive, ministerial or administrative act done, or purporting to be done, under an Act, regulations or any other instrument having, or purporting to have, effect under an Act 15 Proceeding seeking contribution or indemnity in relation to a liability enforceable by a proceeding in the Court 16 Proceeding in which: (a) the person to be served is domiciled or ordinarily resident in Australia; or (b) if the person is a corporation, the corporation is incorporated in Australia, carries on business in Australia or is registered in a State or Territory as a foreign company 17 Proceeding in which the person to be served has submitted to the jurisdiction of the Court 18 Proceeding properly brought against a person who is served, or is to be served, in Australia, if the person to be served has been properly joined as a party 19 Proceeding in which the subject matter, so far as it concerns the person to be served, is property in Australia 20 Proceeding seeking the perpetuation of testimony in relation to property in Australia 21 Proceeding seeking an ordering a person to do, or to refrain from doing, anything in Australia (whether or not damages are also sought) 22 Proceeding affecting the person to be served in relation to:

10 Item Kind of proceeding in which originating process may be served on a person outside Australia (a) the person’s membership of, or office in, a corporation incorporated, or carrying on business, in Australia; or (b) the person’s membership of, or office in, an association or organisation formed, or carrying on business, in Australia; or (c) the person’s conduct as a member or officer of such a corporation, association or organisation

- In §3.52, you see how expansive this is – look at tort and contract. This appears to be very powerful but if the judgment needs to be enforced in a state that does not believe in such broad jurisdiction (that is, the USA), you may be left with a relatively worthless piece of official looking paper. This exemplifies how we think like a lawyer – before the suit is even commenced, we need to think about enforceability. o The American view of jurisdiction is very narrow – they take the view that you can’t sue someone in the US unless they anticipate being sued in the US – this is a constitutional issue o Consequently, any country that has laws different to this butt up against the Americans in court

Distillers Co. (Bio-Chemicals) Ltd v Thomspon [1971] AC 458.

FACTS: A German company manufactured a pharmaceutical specifically designed to prevent morning sickness, therefore almost exclusively consumed by pregnant women. The drug was effective BUT the drug also caused horrific birth defects – without arms and legs, for example. This was commonplace. Distillers was a British company that picked up the distribution rights and the drug hit hard in England. There were only 2 countries in the world that were spared; USA (FDA rejected it) and Australia (local obstetrician noticed something wrong).

- §§ 3.78 – 3.109 – we only need a passing familiarity with this material and it will be covered in the lecture to the extent necessary o not really important - §§ 3.110 – 3.116. This is important. o Submission – where the defendant voluntarily appears in the court, they do not contest jurisdiction in the country they are appearing in (e.g. someone wants to settle in Australian Court and not USA because they usually have higher damages) § If you were on the other side, you can imagine it would want to be done the other way o A defendant can submit to jurisdiction by appearing and participating in the litigation. If a defendant maintains that there is no in personam jurisdiction, the defendant may appear ONLY for the purpose of contesting jurisdiction and must not do anything else or will have been deemed to have consented to jurisdiction. By definition, in personal jurisdiction is never an issue with respect to a plaintiff – who has clearly consented to jurisdiction by commencing the action o This is usually a strategic thing o You can also submit, if you are representing a foreign entity and you bring a claim in Australia, you cannot contest jurisdiction – jurisdiction is only raised by defendants o As soon as you question the jurisdiction of a court, the court must consider this question before dealing with anything else § Normally, it happens in conjunction with a Forum Non Conveniens application o If you are going to challenge jurisdiction, it is going to be pretty hard in Australia because of the broad jurisdiction BUT could work in circumstances of Forum Non Conveniens

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NB - Forum Non Conveniens means that the court has jurisdiction over the case but it should not hear the case anyway (e.g. An Australian court would have jurisdiction over a New York client, but the client only has assets in New York and the basis of jurisdiction that they have is repugnant to the US Constitution, if you hear the case it is likely to be a waste of time).

- Patents and other intellectual property rights. o The key point here is that patent litigation is very territorially circumscribed. That is, if X maintains that Y has violated X’s Belgian patent; then the Australian court will not hear the dispute even though it has personal jurisdiction over the parties.

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