LAWS 2018 – PrIL

Meta-Scaffold

1. Personal a. Bases for Jurisdiction i. Presence of Defendant ii. Submission by Defendant iii. Service Elsewhere in Australia – SEPA iv. Service in New Zealand – TTPA v. Service Overseas – ‘long-arm’ provisions b. Discretionary Non-Exercise of Jurisdiction i. Mandatory ii. Foreign Jurisdiction Clauses iii. – ‘clearly inappropriate forum’ iv. Intra-Australian Cases – the cross-vesting scheme v. Trans-Tasman proceedings – ‘more appropriate forum’ c. Anti-Suit Injunctions

2. a. Mortensen’s Choice of Law method i. Identify Conflict of ii. Classify (characterise) Subject Matter iii. Classify: Substantive vs Procedural Law iv. Identify Choice of Law Rule v. Apply Law of the Cause – including foreign choice of law rules: b. Identifying a c. Characterising the Subject Matter d. Substantive vs Procedural Law: classification e. Application of Law of the Cause: renvoi issues f. Torts: applicable law – delicti g. Equitable + Other Non-contractual obligations h. Contracts: applicable law – of the contract i. Foreign Law i. Ascertaining Foreign Law ii. Exclusion of Foreign Law 1. Penal and Revenue Laws 2. Government Interests 3. Forum Public Policy

3. Foreign Judgments a. Enforcement at Common Law i. Jurisdiction in International Sense ii. Final and Conclusive Judgment iii. Judgment for Fixed Sum iv. Identity v. Defences b. Enforcement in Equity c. Statutory Registration of Foreign Judgments – Foreign Judgments Acts 1991 d. New Zealand Judgments – TTPA e. Enforcement of Judgments within Australia f. International Arbitration

1. Introduction

(a) Concepts and Persistent Issues 1. What is Private ? • Private international law is the body of principles, rules and policies that determine how a foreign element in a legal problem should be resolved. • Can often be referred to as ‘conflict of laws’ – it is not about international law per se, but rather it is about the international elements of the domestic law of Australia and NSW. 2. What is a ‘foreign element’? • There are a number of parts of a case that can involve a foreign element and therefore enliven private international law issues, including: • Foreign party to a case • Event occurring internationally • Property located overseas • Choice of law/governing law clauses in contracts • When litigation could occur in Australia or a foreign jurisdiction • Foreign elements can apply at any point in the process of litigation: • From originating process and service, to the trial, judgment, and enforcement • Interlocutory proceedings – e.g. applications for stay, anti-suit injunctions • Application of foreign law in Australia 3. Strategy in Litigation – private international law issues, especially when multiple may be able to exercise jurisdiction over a matter, can give rise to strategic choices about where best to litigate. For example, one jurisdiction may bar jurisdictions on the basis of a statute of limitations, another might give better remedies, or the location of the defendant’s assets in one jurisdiction may make recovery easier by the plaintiff. 4. 3 Core Issues – private international law essentially deals with 3 core issues: • Jurisdiction – does the court have the authority to decide a matter? • Choice of Law – whether Australian courts may apply the law of another jurisdiction – this is the principle of Australian law which determines the substantive law which will govern a case. This is becoming more relevant given globalisation. • Foreign Judgments – recognition and enforcement of foreign judgments. 5. Terminology • ‘foreign’ – has a broad meaning in private international law in that it can refer to both other countries and states outside NSW as ‘foreign jurisdictions’ – McKain v Miller • law areas – each state, territory (internal and external), and the Commonwealth is a distinct ‘law area’ or jurisdiction in Australia: • common law – Australia has one common law system of precedent – Farah v Say-Dee • legislation – statute naturally varies between law areas • forum – place where a dispute may be heard (can refer to a law or a court of a law area) • – law of the forum (e.g. NSW court applying NSW law) • lex loci delicti – the law of the place of the wrong (i.e. where a tort/crime is committed) • forum non conveniens – an inconvenient forum • lex causae – the law applicable to the settlement of a particular case • lex situs – place where the property is located • ‘proper law of the x’ – the system of law governing the x (e.g. the law governing the contract)

2. Personal Jurisdiction

PART A – Bases for Jurisdiction In order to bring a case against a defendant, the plaintiff needs to establish a basis for personal jurisdiction. Depending on the circumstances and the location of the defendant, a different basis of jurisdiction will apply. A few introductory points: • Part A is about whether a court has the competence (jurisdiction) to hear and determine a matter with a foreign element – however: even if the court does have such competence, it can still decline to exercise that jurisdiction (Part B). • Courts need to have personal jurisdiction in order to make binding orders on the defendant – without personal jurisdiction then there would be no point in exercising jurisdiction. • If the plaintiff cannot establish a basis for jurisdiction, then the matter cannot proceed – this would occur by an application to set aside the originating process or an application to set aside service of the originating process – UCPR, r 12.11

(a) Common Law – Presence of Defendant 1. Individuals – the defendant is an individual, the following rules apply: a. Presence as Basis for Jurisdiction – at common law, the primary basis for the court’s jurisdiction is the service of the originating process on the defendant when the defendant is within the territorial jurisdiction of the court – i.e. NSWSC will have jurisdiction if defendant is in NSW at the time of service – Gosper v Sawyer; Laurie v Carroll i. Timing of Service 1. Present at Service – if the defendant is present in the jurisdiction when the originating process is served then jurisdiction is established – Laurie v Carroll 2. Fleeting Presence OK – even if the defendant is only in the jurisdiction for a short period, if service is affected in that period then jurisdiction is established (so long as it is not vexatious, oppressive, or an abuse of process) – HRH Maharanee v Wildenstein (Ascot Races) 3. Leave After Service – if the defendant leaves the jurisdiction after being served, jurisdiction is still established – Razelos v Razelos 4. Leave before Service – if the defendant leaves the jurisdiction after the writ of service is issued but before service can be affected, then no jurisdiction will be established – Laurie v Carroll a. Exception: evasion – if evidence suggests that the defendant was aware that the writ had been issued but left the jurisdiction to evade service then the court may grant an order for substituted service which will allow jurisdiction even if the individual has left the country – Joye v Sheahan (left Australia, but knew through solicitors of writ being issued) ii. Purpose for Being in Jurisdiction – general rule: the purpose or reason for the defendant being in the jurisdiction usually is inconsequential for the purposes of service – presence is the sole factor – Perrett v Robinson 1. Exception: fraud/coercion – service will not give rise to jurisdiction if the defendant has been tricked, fraudulently enticed, or coerced into the jurisdiction by the plaintiff to be served – Perrett v Robinson 2. Perrett v Robinson – although tort committed in NT, plaintiff wanted to claim in Qld. Plaintiff drove cooperative defendant to Qld for service. Defendant’s insurer unsuccessfully sought to have service set aside on basis of fraud – no fraud because defendant came willingly. b. Personal Service under UCPR i. When is Personal Service Required? – an originating process must be personally served on the defendant for proceedings in all courts except the Local Court – UCPR, r 10.20(2)(a) ii. How is Service Effected? – personal service is affected by: 1. Normal Service – leaving a copy of the document with the person OR if they don’t accept the document by putting it down in their presence and telling them the nature of the document – r 10.21(1)

3. Choice of Law

Part A – Choice of Law Generally General Points about Choice of Law • Australian choice of law rules govern which substantive laws should govern and decide a legal issue where there is more than jurisdiction involved. • Australian courts will generally apply the law of the forum (lex fori) to decide a dispute; however in some cases with a foreign element an Australian court will apply the law of another law area to decide a dispute. • The ‘applicable law’ (lex causae) is the substantive law that applies to an issue. As per above, an Australian court may apply the lex causae of another jurisdiction to determine a dispute. • An Australian court applies its own choice of law principles to determine what is the applicable law to a dispute or legal issue – the Australian choice of law principles therefore determine what substantive law applies to the issue. • Dispositive vs Indicative Rules – choice of law rules (indicative rules) merely direct the forum court as to which substantive body of rules (dispositive rules) govern the dispute and will therefore determine the outcome – indicative rules do not provide the answers to a legal issue. • Jurisdiction and Choice of Law as Distinct Issues – the assumption of jurisdiction by a court and the issue of choice of law are distinct issues, with choice of law being logically subsequent to the assumption of jurisdiction – e.g. an Australian court may have jurisdiction hear a matter, but will apply foreign law as the dispositive rules due to the choice of law principles. o Interaction – nonetheless, jurisdiction and choice of law do interact given that choice of law will likely affect the decision of a court to exercise jurisdiction for forum non conveniens – therefore: in answering problem questions it may be necessary to determine a choice of law issue as a factor within the issue of jurisdiction. • Strategic Issues – choice of law issues will only arise if it is made a strategic issue for the parties – a party will raise the issue of applicable law in their pleadings. Otherwise, it is assumed that the lex fori will govern the dispute. • Dépeçage – ‘to divide’ – when there are two or more issues in a case and each raises a choice of law issue, then the principle of dépeçage provides that each issue is treated independently with the choice of law method applied for each, meaning that different sets of foreign law can apply in the same case. The outcome is different with ‘incidental questions’ however (see below).

Position of Choice of Law in PrIL Problem Question It is useful to situate choice of law issues within the broader context of PrIL problem questions: 1. Jurisdiction – does the forum court have the jurisdiction to determine the dispute? 2. Discretion to Exercise Jurisdiction – if the court does have jurisdiction, will it decline to exercise that jurisdiction (forum non conveniens)? 3. Choice of Law – if the court has jurisdiction and decides to exercise it, what is the applicable substantive law to resolve the dispute?

Adopt Mortensen’s 5-Step Choice of Law Method Mortensen sets out a method for resolving choice of law issues – this does not have in law and is one of many ways to approach choice of law issues – however: will be adopted here for sake of clarity and convenience: 1. Identify Conflict of Laws – involves identifying the relevant legal systems and how their purported application may conflict. 2. Classify (characterise) Subject Matter – characterise the nature of the legal issue (e.g. tort or contract) 3. Classify: Substantive vs Procedural Law – determining whether the matter is substantive or procedural 4. Identify Choice of Law Rule – given the of the law, what is relevant choice of law rule – i.e. go to the tort or contract applicable law sections. 5. Apply Law of the Cause – once the applicable law is identified, the court should then apply the applicable dispositive rules to the dispute. An issue of Renvoi may arise at this point. This process is set out below in detail.

Exception to Mortensen’s Method: forum statutes Given parliamentary sovereignty, statute that governs choice of law trumps or ousts the common law choice of law principles set out in Mortensen’s method. Forum statutes can affect choice of law in 3 ways: 1. Provide Choice of Law Rule – statute may explicitly provide a choice of law rule – if done so with express words it will be applied as mandatory law – apply to override common law rules. 4. Foreign Judgments

(X) Introduction to Foreign Judgments Topic 1. Terminology: a. Judgment Debtor – the person (usually defendant) subject to a court order to pay a sum of money to the judgment debtor. b. Judgment Creditor – judgment debtor owes money to judgment creditor, who has the right to enforce payment by execution against the judgment debtor’s property. 2. Types of Judgments – there are two main ‘types’ of judgments – the first is most relevant for this topic: a. in personam – imposes a personal obligation on the defendant. b. in rem – affects the status or a corporation or affects/creates an interest in property. 3. Enforcement vs Recognition of Foreign Judgments – terms used interchangeably, but subtle difference: a. Enforcement – obligation evidenced in the foreign judgment is given effect in Australia. b. Recognition – more declaratory purposes in merely recognising existence of legal rights rather than giving effect to them – e.g. declaring title to property or recognising a foreign judgment for res judicata 4. Core Principle: Jurisdiction or Power to Enforce Judgment – in order to enforce or recognise a foreign judgment, the forum court must have jurisdiction (common law) or power (statutory) to do so: a. Foreign Judgment merely Evidence of Obligation – a foreign judgment does not itself create an obligation in NSW; the foreign judgment is but evidence of an obligation in a foreign jurisdiction upon which the forum court may, if allowed by law, choose to create an obligation in NSW. 5. Bases of Jurisdiction – four main sources of power or jurisdiction for enforcement of foreign judgments: a. Common Law – only used for non-NZ overseas judgments where there is no reciprocal relationship under the Foreign Judgments Regulations 1992 (Cth) b. Statutory: i. Intra-Australian Judgments – enforcement in NSW of judgments from other states or territories: Service and Execution of Process Act 1992 (Cth) ii. New Zealand Judgments – enforcement in NSW of judgments from New Zealand courts: Trans-Tasman Proceedings Act 2010 (Cth) iii. International Judgments: statutory registration + reciprocal relationships – enforcement of foreign judgments from jurisdictions which Australia has a reciprocal relationship, use the Foreign Judgments Act 1991 (Cth)

(A) Enforcement at Common Law 1. Elements of Common Law Enforcement – there are 4 essential elements for enforcement at common law: a. Jurisdiction in International Sense – apply Australian law on jurisdiction – foreign court must have exercised jurisdiction in a way that would establish common law jurisdiction according to law of the forum court – i.e. did foreign court attain jurisdiction in a way recognised at Australian common law? i. Bases for Jurisdiction – there are two main bases for jurisdiction at common law: 1. Presence – defendant must have been physically present in the jurisdictional area of the foreign court when served with the originating process – Buchanan v Rucker a. Applications: i. Buchanan v Rucker – judgment of Tobago court sought to be enforced in UK – OP served under Tobago law by nailing it to front door. This was not recognised under UK law which required the defendant to be personally present in jurisdiction when served. ii. Lucasfilm Ltd v Ainsworh – judgment of Californian court sought to be enforced in UK – defendant sold items into California over internet; never personally present in California – no presence at UK common law because merely sending items into jurisdiction. b. Inducement by Fraud to Enter Jurisdiction – if the defendant is induced by fraud to enter the foreign jurisdiction for the concealed purpose of serving an OP, then the forum court will not recognise jurisdiction – Close v Arnot Close v Arnot – defendant went on holiday, plaintiff booked a hotel room for him to serve him – NSWSC did not apply rule in this case because the D would have come into the jurisdiction regardless.