LAWS 2018 – PrIL Meta-Scaffold 1. Personal Jurisdiction 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 Law ii. Foreign Jurisdiction Clauses iii. Forum non conveniens – ‘clearly inappropriate forum’ iv. Intra-Australian Cases – the cross-vesting scheme v. Trans-Tasman proceedings – ‘more appropriate forum’ c. Anti-Suit Injunctions 2. Choice of Law a. Mortensen’s Choice of Law method i. Identify Conflict of Laws 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: renvoi b. Identifying a Conflict of Laws c. Characterising the Subject Matter d. Substantive vs Procedural Law: classification e. Application of Law of the Cause: renvoi issues f. Torts: applicable law – lex loci delicti g. Equitable + Other Non-contractual obligations h. Contracts: applicable law – proper 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 International Law? • 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 jurisdictions 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) • lex fori – 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