You are on page 1of 133

Private International Law

2010

INTRODUCTION TO PRIVATE
INTERNATIONAL LAW
PRIVATE INTERNATIONAL LAW
Private international law is the body of principles, rules, and at times, policies that indicate how a foreign
element in a legal problem or dispute should be dealt with
Mortensen 2008
The common law has traditionally classified multi-state cases as giving rise to one or more of three different
issues:
1.

Jurisdiction
o

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 courts power or willingness to decide the case

2.

Recognition and enforcement of foreign judgments


o

Where the case has proceeded to judgment in the other state or country, whether that
judgment can be recognised or enforced in the forum

3.

Choice of law
o

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) 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 forums law is likely to give a
different result to the application of the foreign law that is, where there is a conflict of
laws

Private international law has its historical development in civil law. Lex fori is the law of the forum and lex
causae is law of the cause/law of the matter in dispute. It is sometimes called the dispositive law (as opposed
to procedural law.)
1

Private International Law

2010

The court will still apply its procedural laws as to how the parties come about but it may apply some other law
to resolve that dispute eg lex causae is not the law of Qld, it is the law of Indonesia. In Australia, there is a PIL
rule which says disputes over real property are to be determined by the lex situs (place where the property is
situated). The law where real property is will determine the rights and duties of people who have disputes over
rights to property. The mechanism by which the court determines the lex situs is Indonesian law, is private
international law.

There is a conflict of laws two sets of laws and each set would give a different outcome when applied to the
facts of the case.

The locus delicti is the place of the tort. Jurisdiction is the first issue that has to be addressed. The first question
is can the court which has a foreign element before it addresses that foreign element.

Private International Law

2010

The choice of law process is the process by which a court decides which of these two competing laws the court
will apply to a case. Wherever these torts occur, the law that governs that action are governed by the law
where you negligently performed. Forum shopping is not about going and getting a result, but preventing
people from transferring actions from one system to another. Lex loci delicti is the law of the place of the tort
which governs the law that will be applied. The two jurisdictions that are in conflict are not necessarily two
jurisdictions in an international sense.
REGIE NATIONAL DES USINES RENAULT SA V ZHANG (2002) 210 CLR 491

The defendant was Renault (French company), the tort was committed in New Caledonia, and the
forum was the NSWSC

Jurisdiction
o

P spent some time in hospital in NSW ongoing medical treatment was sufficient under NSW
rules to find jurisdiction

Choice of law (a foreign or interstate law)


o

What rule is applied to decide the matter to determine whether Renault was negligent in the
manufacture or design?

Not going to turn to NSW law going to turn to the law of France/New Caledonia

Recognition or enforcement of a foreign or interstate judgment


o

If you do apply French law, and the French company is liable, how do you get those damages

Assuming that Renault has no assets in NSW, how do you get those damages?

Recognition or enforcement of a foreign or interstate judgment

Hoping that a French court would enforce your interstate judgment

Private International Law

CONFLICT OF LAW

2010

Private International Law

2010

Private international law is not just about a conflict of substantive laws, but also about a conflict between
different States conflict of law rules ie a conflict of conflict of laws.

Procedural rules will always be the law of the forum/lex fori. There is never a question of a Qld court applying
civil procedure laws of California. However, a Qld court may apply foreign substantive law or lex causae.
Private international law rules such as lex loci delecti and lex situs are rules of choice of law. Qld court has
different procedural rules to a French court and different substantive law, and may also have different private
international law rules.
RE ANNESLEY; DAVIDSON V ANNESLEY [1926] CH 692

English testatrix dies while domiciled in France leaving a will (she had property in France)
o

Disowned (English) son disputes the validity of the will

If the will is invalid she has died intestate

Jurisdiction
o

Which State can determine the validity of the will? English or French? Or both?

May be that the English court has jurisdiction to hear this matter

May also be the case that the French court has jurisdiction to hear this matter

What happens when two courts both try and address the same matter

Assuming English court only has jurisdiction

English forum
o

Under English law and French law, the will is valid

Therefore there is no conflict no problem

However, French law will only deal with 1/3 of the property

Substantive law of England differs from substantive law of


France

Applying English law, the son gets nothing, whereas applying


French law, the son gets 2/3 of the property

How does the court decide which of the two is going to apply?
o

Turns to the conflict of law rules/choice of law rules

Private International Law


o

2010

Under British law, succession to movables is determined by the


domicile of the testatrix ie France

Under French law, succession to movables is determined by


nationality of the testatrix ie England

Therefore, there is a conflict of substantive law and a conflict of choice of


law rules

SOURCES OF PIL

For the most part, dealing with the common law of Australia. The conflict of law rules do not differ between
the states, but the substantive law may. Nielson v Overseas Projects sets the law on how you deal with conflict
of conflict of laws. In this case, the HCA elevated the goal of consistency in international litigation over and
above all other goals of PIL.
Judicial decisions
The main source of choice of law rules in Australia remains the common law.
Constitutional sources
The Commonwealth Constitution includes a number of provisions important to private international law
questions within the Australian federation.
International conventions
PIL is about national law of Australia. Some of this law has its origins in international conventions, and only
becomes part of the substantive law of Australia if enacted by legislation. UNDROIT and UNICTRAL try to adopt
international conventions that introduce uniform legislation (substantive law). Hague Conventions doesnt try
to introduce uniform substantive laws, it tries to introduce uniform conflict of law rules.
Legislation
Most of Australias PIL is found in the legislation for family law. By looking at the different ways in which PIL is
characterised eg common law vs legislation.
Scholarly writing
Why the courts adopt these rules and why they sometimes have difficulties applying the rules.

Private International Law

2010

MULTISTATE OR FOREIGN ELEMENT?


A conflict of laws may be State (as in nation State/country) or State (as in constituent element of nations
State Queensland, California, British Columbia). It is the existence of a conflict of laws which calls into
question the scope of PIL. Conflict of laws is conflict between two bodies of law. There is no question of the
government acting unless they are acting in a private capacity.
It may apply between:

Two nation states (Australia and France) OR

Two constituent components (NSW and Qld or Qld and California) OR

Between a nation state and another nation states constituent component (Australia and Quebec)

ENTITIES FOR PRIVATE INTERNATIONAL PURPOSES


Australian constitutional powers federal includes: corporations, insurance, insolvency and marriage eg
Federal Marriage Act 1961. However, in the US/Canada, marriage is a state power. There can be a conflict
between Federal law and eg Californian law.
Australian common law no conflict possible between States. In interstate cases, the doctrine limits the choice
of law method to cases where at least one of the contending laws is of statutory origin. States modify common
law eg Civil Liability Act 2003 (Qld). There is conflict only if on a particular matter there is a conflict between, eg
a WA statute and Qld statute; WA statute and common law; common law and Qld statute.
PRIVATE AND PUBLIC INTERNATIONAL LAW
SUBJECT MATTER
Public international law the public law eg nation state, human rights, international crime.
Private international law the private law eg obligations (contract, tort and restitution), property (holding,
transfer, succession), persons (family law, corporations law, insolvency status), not crime, government or
administration.
SOURCE
Public international law conventional (treaty) and customary international law (practice of nations).
Private international law the individual nations municipal law (Federal or State), though some unification
through international treaties eg Hague Convention on Exclusive Choice of Court Agreements
OBJECTIVES OF PRIVATE INTERNATIONAL LAW
Why does a court ever apply a foreign law why not simply apply the lex fori? What is the policy/theory
underpinning PIL?

Private International Law

2010

CONSISTENCY
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 is 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.
The goal of consistency therefore also aims to minimize the legal significance of the plaintiffs 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:
Perret v Robinson; Stevens v Head.
As an objective for conflicts law, the goal of consistency has been dismissed as both unrealistic and, on
occasions, subversive of just results in particular cases.
PARTICULAR JUSTICE
Involves giving effect to the expectations of the parties. 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 countrys or states law
will produce a more just outcome than application of the forums.
INTERNATIONAL AND IN TERSTATE COMITY
Reciprocity eg respecting that another country has a separate legal system and that legal system will give effect
to our laws etc. Recognising that we wont necessarily apply our laws to solve a dispute.
The doctrine of comity was the basis for the application of foreign laws according to Story, but mainly used to
emphasise that a form court had no obligation to apply the law o fanother country or state.
HILTON V GUYOT 159 US 113 (1894)
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.

Private International Law

2010

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. 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 an
harmonious international legal order.
FEATURES OF PRIVATE INTERNATIONAL LAW
1.

The consequences of globalization multistate legal problems are increasingly common

2.

It is inherently and historically complex, with debated theoretical underpinnings

3.

Its rules, as common law rules supplemented with legislative provisions, are in flux

4.

PIL is municipal law, therefore it is not universal, and differs from State to State (including differences
in conflict of laws itself different States may have different ways of addressing a foreign element in
legal issues)

5.

Some degree of uniformity is, however, sometimes attempted through international conventions eg
Hague Convention on Exclusive Choice of Court Agreements

Private International Law

2010

JURISDICTION
INTRODUCTION
Jurisdiction is the power that a court has to deal with a particular case. However, a court will not necessarily
hear a case just because these rules of jurisdiction are satisfied. There are certain multi-state cases a court has
no jurisdiction to determine, even when jurisdiction is otherwise established on one of the grounds discussed
in this chapter. There are also considerations which allow a court, in the exercise of its discretion, to decline
jurisdiction in a multi-state case even though the court still has the right to determine the case.

1.

Jurisdiction at common law


o

2.

3.

Very narrow jurisdiction, but nevertheless continues to exist in Australia

Jurisdiction in interstate cases


o

Defendant is in another state or territory

Special rules about Australia and the legal systems within Australia

Jurisdiction in international cases


o

Defendant is outside Australia

JURISDICTION AT COMM ON LAW

1.

The old English system was based on territoriality the defendant had to be present in the territory of
the forum. If the defendant was outside of your territory, you had no jurisdiction even if he was one of
your citizens.

2.

The alternative is consent, or if the defendant voluntarily submits to the jurisdiction of the court.
There are a number of situations where this may be the case
o

Actually not the defendant

Alternative forum might be harder on the defendant (assuming the alternative forum has
jurisdiction)

10

Where the defendant can counterclaim

Private International Law

2010

In sophisticated sales contracts, they can have a choice of forum clause which allows the parties to choose
beforehand what forum the dispute will be resolved in. However, just because have submitted in a contract to
a choice of forum doesnt mean the parties have agreed about the choice of law (can have choice of forum
clause and a choice of law clause.)
CIVIL PROCEDURE PROCESS (TWO STAGES)

1.

Claim (writ, application, originating summons) issued when filed and checked in court registry
o

The defendant must be within the jurisdiction when the writ is issued: Laurie v Carroll
Separate from issue of serving the writ

2.

Claim served on defendant (respondent) personally or in case of corporation (delivery to office)


o

Jurisdiction is perfected when served

However, if left when knowing of writ or to avoid service, then jurisdiction is perfected

Defendant tagged on flight between Texas and Tennessee when travelling through Arkansas
airspace: Grace v Macarthur

Only at this stage can a court be considered to have jurisdiction over a defendant

Jurisdiction is perfected only when claim served, as only then can the defendant be said to be under a duty to
obey the courts command to appear before it.
When does the defendant have to be in the territory? When summons is issued? When it is served? How long
do they have to be in the jurisdiction? What purpose is that person within the territory?
LAURIE V CARROLL

Facts
o

L based in London, C based in Melbourne

Contractual dispute about moneys to come out of a theatrical performance

C decided to sue L for some of the proceeds that should have come out of this contract

C gets writ issued in Melbourne but discovers that L left Melbourne the day before the writ
was issued and went to Sydney

L subsequently discovers he is going to be sued by C and before anything can happen he goes
back to the UK

Writ issued on 14 June but never served on L

C tried to obtain substituted service on 21 June

Held
o

At common law, at the time the writ was issued L was not in the jurisdiction of the court (had
left Melbourne to go to Sydney)

Thus when the writ was issued, the court had no jurisdiction over L

The court refused substituted service

11

If D isnt within the jurisdiction when the writ is issued, cant serve writ

Private International Law


o

2010

If L left Australia knowing C would sue, would fall within the courts jurisdiction

D must knowingly evade service by leaving the jurisdiction before the writ can be
served

Here, the court may order substituted service on the defendant as physical service of
initiating process had failed

TERRITORIALITY PRESENCE WITHIN JURI SDICTION


The basic rule by which a courts jurisdiction is established at common law is that the defendant must be
amenable to the courts initiating process. It does not matter that the defendants presence there is temporary:
Colt Industries Inc v Sarlie.
In general the purpose for which the defendant is inside the territorial borders of the forum is irrelevant to the
question of jurisdiction. In some jurisdictions, D simply has to be within the territory there is no length of
time eg D validly served when flying over Arkansas airspace: Grace v MacArthur. The exception is if D is lured
into the jurisdiction under false pretences merely to issue a writ. However, it is only the most extreme cases
that the exception is likely to upset the courts jurisdiction.
Similar principles apply in personal actions against a company. The company must have some presence inside
the forums territorial bounds to be subject to the jurisdiction of the forum court. 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. Holland J in National Commercial Bank v Wimborne identified three criteria that tend to
establish a company is carrying on a business in the forum:

1.

The company is represented in the forum by an agent, who has authority to make binding contracts
with persons in the place

2.

The business is conducted at some fixed and definite place in the forum

3.

The business has been conducted in the forum for a sufficiently substantial period

PERRETT V ROBINSON

Tried to allege that Qld didnt have jurisdiction because D fraudulently led into jurisdiction
o

Failed because D knew exactly what he was doing going for the sole purpose of being
served with the writ

CONSENT DEFENDANT VOLUNTARIL Y SUBMITS

1.

Submission by agreement
o

Forum clause constitutes a voluntary submission to the jurisdiction of the forums court
and, even where there is no other connection with the forum, a party cannot later deny the
jurisdiction of its courts or the power they have to render a binding judgment: Vogel v
Kohnstamm

12

Private International Law

2010

If not expressly stated in terms of contract, unlikely that it can otherwise be inferred

Distinguished from choice of law clause which specifies that the law of the forum, or another
place, shall be the proper law of the contract: Dunbee v Gilman and Co

Also distinguished from an arbitration clause, in which disputes referred to arbitration in the
forum

2.

Authorising lawyers to accept service of writ


o

Jurisdiction is established once the lawyer is served, and indorses acceptance of service on a
copy of the document

3.

Appearance
o

Clearest expression of submission to jurisdiction is the entry by the defendant of an


unconditional appearance in response to the originating process

A person who does not intend to submit to the courts jurisdiction has two alternative
courses

Person served may refuse to enter an appearance

Can enter conditional appearance (except NSW and SA)

Person who actively challenges jurisdiction must act consistently with protest against
jurisdiction

Tacit concession of courts right to hear and determine the merits of the plaintiffs
claim will be taken as submission to jurisdiction

APPEARANCE

Most states allow you to make a conditional appearance before the court (ie not appearing before court as a
defendant because dont accept the courts jurisdiction.) If you appear and do something with that challenge
eg raise substantive issues, then youve required the court to deal with that and have consented to the court.
In SA you actually do appear before the court, but if that appearance is solely for the purpose of challenging it,
that appearance is not an appearance (ie an appearance is not deemed to be submission to the jurisdiction.)
Even if the defendant denies the courts jurisdiction, the defendant will be taken to submit to jurisdiction
where he or she:

Agrees to allow the substantive case to be heard: Rimini Ltd v Manning Management and Marketing
Ltd

13

Private International Law

2010

Defendants lawyer makes oral submissions on the merits: Boyle v Sacker

Defendant makes a counterclaim on a ground related to the plaintiffs claim: Factories Insurance Co v
Anglo-Scottish General Commercial Insurance Co

Defendant consents to interlocutory orders in the cause: Esal (Commodities) Ltd v Pujara

Defendant argues against the extension of the limitation period applicable to the claim: Portelli v
Selstam

Defendant applies for an order for security for costs: Lhonex, Limon and Co v Hong Kong and
Shanghai Banking Corporation

However, an exception to this principle is where there is an application that the action should be stayed on the
ground of forum non conveniens. The application proceeds on the assumption that the court has jurisdiction,
but it is argued that in the exercise of its discretion the court should decline that jurisdiction.
JURISDICTION IN INTERSTATE CASES
Jurisdiction at common law applies in this case as well, but in most situations it is replaced by statute:

QLD Uniform Civil Procedure Rules 1999

NSW Uniform Civil Procedure Rules 2005

ACT Supreme Court Rules 1937

FCT Federal Court Rules (Cth)

VIC Supreme Court (General Civil Procedure) Rules 1996

TAS Supreme Court Rules 2000

SA Supreme Court Rules 2006

HCA High Court Rules 2004 (Cth)

WA Supreme Court Rules 1971

For private international law purposes, Qld is as foreign to NSW as it is to Quebec. From a common law
perspective, Qld has no jurisdiction in NSW legislation has changed this substantially eg Service and Execution
of Process Act 1992 (Cth) and the uniform State and Territory Jurisdiction of Courts (Cross-vesting) Acts 1987.
These schemes have done away with any private international law issues that could arise between states and
territories.
SERVICE AND EXECUTION OF PROCESS ACT 1992 (CTH)
The Act applies to all superior and inferior tribunals having the status of a court under state or territory law. It
provides that initiating processes 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, eg Qld Court will use Qld procedure to serve D in
WA. 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, s 12.

14

Private International Law

2010

This 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.
JURISDICTION OF COUR TS (CROSS-VESTING) ACT 1987 (C TH)
Establishes a system of cross vesting of jurisdiction between (federal, state and territory) courts, without
detracting from the jurisdiction of any court. Under this legislation, jurisdiction of superior courts is crossvested but transfers are allowed to more appropriate superior courts.

State Supreme Courts have not cross vested their jurisdiction to the federal court, however, they do have
federal jurisdiction. Territory courts can vest their jurisdiction in the federal court. There is also no cross-vesting
of Federal and Family Court jurisdictions. The inability of the FCA and Family Court of Australia to receive state
and internal territory jurisdictions as held in Wakim is now the largest gap in the scheme.
There was some debate as to whether cross-vested jurisdiction was substantive or procedural jurisdiction:
Seymour-Smith v Electricity Trust of SA (1989) 17 NSWLR 648; David Syme & Co Ltd (Rec & Mgr Appted) v
Grey (1992) 115 ALR 247. This is no longer practically relevant because of the Service and Execution of Process
Act. Thus there is no longer really an issue of jurisdiction between states and territories in PIL always have the
power to transfer matter to another court. However, it must be noted that the law of Qld and NSW are
completely separate entities for choice of law, but not for jurisdiction.
JURISDICTION IN INTERNATIONAL CASES
This is where the defendant is outside Australia. Under common law, a court has no jurisdiction as the
defendant is not within the courts territorial jurisdiction and has not submitted to that jurisdiction.

If P is present in forum this can be the basis of jurisdiction. Even if all of those things are present, the court will
still not have jurisdiction if D is outside the forum (in common law.) This is the case if the D is a resident of the
forum but has left before the summons were issued. The courts have adopted legislation which adds to
15

Private International Law

2010

common law and in certain circumstances the court will have jurisdiction over the foreign defendant. Note:
Federal Court Rules O 8 r 2 is a catch-all clause.
GROUNDS OF JURISDICTION
DOMICILE OR ORDINARY RESIDENCE (FORUM DOMICILII)
If a person is domiciled in Australia or usually resident in Australia, Australia will have jurisdiction even if the
cause of action arises somewhere else. Australian courts will always have jurisdiction over you as an Australian
resident.
CONTRACT

1.

Contract made in the forum


o

Not necessarily clear what made in the forum means

Most common way is where acceptance of contract is in Australia

Where last act necessary to create a binding contractual obligation occurred: Deer Park
Engineering v Townsville Harbour Board

Place where the offeror received official communication of acceptance of the terms
of the agreement

Clause in agreement stating where contract is made is not conclusive of the place the
contract was made as this conclusion is ascribed by law, not the agreement of the parties:
Sheldon Pallet Manufacturing Co Pty Ltd v NZ Forest Products Ltd

2.

Breach of contract within the forum


o

Doesnt mean that every part of the breach occurs in Australia, but the breach alleged must
occur in Australia

This can occur even if the contract is made somewhere else

Most common is failure to pay

To justify service on this ground, the plaintiff must show that

The action is in respect of or founded on a valid contract

There was a breach of that contract

The breach took place in the forum

Obligation which plaintiff alleges has been breached must be one which had
to be performed in the forum

If plaintiff alleges that it is the performance of an act that constitutes a


breach of contract, the breach is taken to occur where the act took place:
Safran v Chani

3.

Contract is governed by the laws of the forum (proper law of the contract forum clause)
o

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

16

Private International Law

2010

forum, and therefore the courts 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

The use of contract doesnt mean contract strictly it could be an assignment of a right (also falls within this
head of jurisdiction), actions brought by a third party in respect of a contract made by others, and actions
relating to other obligations to pay a fixed sum of money that are imposed by law.
TORT

1.

Cause of action arose in jurisdiction (FCA, HCA, NSW, QLD, Tas) wider than simply torts
o

Cost of hospital treatment in NSW was sufficient for NSWSC to find that it had jurisdiction:
Renault v Zhang

2.

Tort committed in forum


o

In all jurisdictions, service outside Australia is permissible in an action founded or based on


a tort committed in the forum

3.

The tort was failure to inform about the risk of thalidomide: Distillers Co v Thompson

Agar v Hyde (2000) 201 CLR 552

Dow Jones & Company v Gutnick (2002) 194 ALR 433

Damages suffered in the forum


o

Injury sustained, in whole or part, in the forum, from a tort, wherever occurring

In order to determine whether damages wholly or partly suffered in jurisdiction, have to be


careful of what the tort actually is

As soon as Australian courts say all they need is part of damages within forum, the
court will readily accept jurisdiction

Not just terms of damages in terms of paying out money, also pure economic loss

P injured in accident in Qld incurred damage after returning to NSW because she needed
further treatment in Sydney and suffered economic loss as a result of reduced earning
capacity: Flaherty v Girgis (1985) 4 NSWLR 248

Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491

Dow Jones & Co Inc v Gutnick (2002 10 CLR 575 at 622

These lead to the possibility that jurisdiction exercised only on the basis of the plaintiffs
residence

DISTILLERS CO V THOMPSON (1971)

Court required to determine


o

Whether alleged wrong constitutes a tort; and

Whether occurred to a sufficient degree in the forum

The tort was failure to inform about the risk of thalidomide


17

Private International Law


o

2010

If it was negligently manufactured outside Australia, dont have jurisdiction about negligent
manufacture

Tort was failure to warn in NSW where they submitted the drug

DOW JONES & COMPANY V GUTNICK (2002) 210 CLR 575


Gleeson CJ, McHugh, Gummow and Hayne JJ (at 607):
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 defendants 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.

The question was whether the Victorian court had jurisdiction to hear this dispute

Problem with the court exercising on this basis is that it can be called into any jurisdiction where it is
downloaded
o

Reputation/damages suffered is only going to be suffered where people knew this particular
person

Even though under principle articulated by the judges a Zimbabwean court may
exercise jurisdiction, they may not be able to prove defamation

Not necessarily Zimbabwean law if it is heard in Zimbabwe

PROPERTY SITUATED IN THE FORUM


Real property (land) situs (time and space) jurisdiction founded ie, as long as that property was in Australia
in time and space and also at the time the dispute about the property arose means jurisdiction will be found. If
property is somewhere else, there will be a problem with enforcement. The action must relate to title to, or
possession of property: Shire of Yeerongpilly v Love (1906) cf Victoria v Hansen[1960].
SHIRE OF YEERONGPILLY V LOVE (1906)

Matter concerning rates outstanding in relation to property

Under legislation, property itself was security for the rates

To the extent that unpaid rates was a claim against the property meant it was related to
title/possession of property

Property in Australia and dispute about rates in Australia

VICTORIA V HANSEN [1960]

Dispute about stamp duty in relation to property

18

Private International Law

2010

Stamp duty merely personal debt, couldnt be used against property - not sufficiently connected to
title/possession of property

When talking about property need to think about what the actual claim is and how that relates to
property
o

Unpaid rates falls within property because it is broadly construed

SERVICE OUTSIDE AUSTRALIA AND LEAVE TO PROCEED


Leave to serve outside Australia (FCA, ACT, WA) leave of court required:

Appropriate case (primae facie case)


o

So as not to put D to time and expense of answering spurious claims

Within grounds of jurisdiction

Unlikely to obtain stay in proceedings on basis of forum non conveniens

Most courts in Australia (or at least FCA, ACT, WA) will ask whether they are the appropriate court to
adjudicate a matter. Technically, have to show that you are not an inappropriate court to hear the matter.) The
plaintiff must pre-empt other grounds on which the defendant might apply for a stay of proceedings eg forum
clause providing for dispute to be determined in another court. Leave wont be granted where it is evident that
the plaintiff wont succeed, either because it is unlikely they will make out the claim or the defendant has a
good defence. If dont submit to process, need leave to proceed can still proceed against foreign D even if
they do nothing, but must satisfy burden of above three requirements.
HCA, NSW, Qld, SA, Tas, Vic service of initiating process does not require leave of court BUT leave is required
if proceeding to litigation without the defendant entering an appearance. The court therefore has discretion to
refuse leave, even in cases that come within one of the specified grounds of 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.
AGAR V HYDE (2000) 201 CLR 552

If the defendant argues that leave to proceed should not be given, the court might fairly be asked to
consider
o

That the court was a clearly inappropriate forum (ie a forum non conveniens) to decide the
case

That the claim had insufficient prospects of success

That the claims were not of a kind set out in the grounds of jurisdiction in r 124

Gaudron, McHugh, Gummow and Hayne JJ required a high degree of certainty about the
ultimate outcome of the proceedings

Facts
o

Action against IRFB by a group of Ps who suffered injuries because of scrums collapsing

19

IRFB failed to property scrutinize the way rules about scrimmaging had been applied

Private International Law

2010

Damages suffered in Australia due to negligence of IRB (outside Australia)

P really has burden that the court is not a forum non conveniens

This forum is an appropriate forum to hear this dispute

Could argue that Australia is an appropriate forum to hear dispute about injuries suffered in
Australia falls under FCA rules

Held
o

Without adjudicating matter, court said that alleging tort by IRFB and IRFB was negligent was
saying that IRFB had duty of care

The court was not satisfied that P could prove this

Looked at substance of matter and asked primae facie whether P could show they
have a good case against D

In this particular case, claim is spurious couldnt see on information before it that
duty and breach could be proved

Heads of damages themselves are not sufficient they are a precondition but still have to
satisfy other requirements

Limits possible exorbitant jurisdiction of Australian courts

Gaudron, McHugh, Gummow and Hayne JJ

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

The court was a clearly inappropriate forum for the determination of the
proceedings, under the relevant principles of forum non conveniens

The claim had insufficient prospects of success to warrant an overseas defendant


being put to the time, expense and trouble of the litigation

Had to be a high degree of certainty about the ultimate outcome of the


proceeding not sufficient that the plaintiffs failure at trial merely be likely
or probable

20

Private International Law

2010

JURISDICTION II
REVIEW
Common law: presence or consent to jurisdiction.
Inter-state: Service & Execution of Process Act 1992 (Cth) and Cross-Vesting Acts 1987
International: refer to each jurisdictions legislative requirements re leave to serve and leave to proceed and
grounds for jurisdiction:

Personal defendant domiciled or resident

Contract made in forum, breached in forum, choice of law clause

Tort committed in forum, damages suffered in forum

INTERNATIONAL AND INTERSTATE JURISDICTIO N


Even if, under normal rules, a court has extraterritorial jurisdiction, that jurisdiction might not be exercised
because:
1.

The law of the jurisdiction requires it not to be exercised (substantive limits on jurisdiction)

2.

The law of jurisdiction gives the court a discretion allowing it to choose not to exercise jurisdiction
(restraints on proceedings)

The first of these is mandatory and the second is discretionary.


SUBSTANTIVE LIMITS ON JURISDICTION

Coercive power of the court is the power of the court to consider a matter, adjudicate on that matter and
adjudicate on that matter and then enforce that decision. The exceptions of foreign state immunity and
diplomatic and consular immunity are subject to public international conventions. Foreign immovables are
slightly different.
FOREIGN IMMOVABLES
BRITISH SOUTH AFRICAN COMPANY V COMPANHIA DE MOAMBIQUE [1893]

Applied to title, possession or trespass actions (and actions dependant on these)


21

Private International Law

2010

Denies a court in the forum the power to hear or determine any case in which it would be required to
determine a persons title to land outside the forum state or a persons right to the possession of land
outside the bounds of the forum
o

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

Extent of application uncertain

Altered in ACT (1995) and NSW (1989)


o

Increasingly legislative intervention that undermines the Mozambique principle

Even when the common law principle continues to apply, courts have been reading this
narrowly

Stands for the proposition that a court, even though it may have jurisdiction over a defendant, may
not hear a matter where at the heart of the matter is title/possession to immovable property eg land
o

Stands to reason that if the dispute is about title/possession to property in Russia, an


Australian court should not be the appropriate place to deal with that matter it has the
ability to control who has title/possession to land

Foreign immovables include land, patents, trade marks, copyrights etc.


DAGI V BROKEN HILL PROPRIETY COMPANY LTD (NO 2) [1997]

Facts
o

Claim against BHP concerning land that had been affected by mining operating in PNG

Part of the action against the company was in nuisance and negligence

Nuisance was the extent to which the activities of the company had impacted on
title/possession of landholders in PNG

Negligence was that the activities had caused pollution to the water supply in PNG

The court had to decide whether any of those matters came within the Mozambique principle

Nuisance affects possession/enjoyment of land

To the extent that this matter was about the extent/use/enjoyment of land,
the Mozambique principle applies
o

At the heart of the matter, the dispute was about immovables/title


to/possession of immovables

Held
o

22

The negligence action was not about land or title to/possession of land

It was about negligence that caused damage to P

Fell outside principle

Court had power to hear matter even though it occurred outside Australia

No difference between this case and Renault

Private International Law

2010

Contracts dealing with land


To the extent that the dispute is about rights/duties of parties under a contract, even though the contract is
about land, the Mozambique principle is found not to apply.
Breach of trust
If the matter is about breach of trust, even though the subject matter of the trust is land, the court said the
matter is about breach of trust, not immovables.
This is an example of the principle of classification (way different legal issues are classified.) The Mozambique
principle will only apply to the middle circle, anything else classified slightly differently will not.
SINGH V SINGH (2009) 253 ALR 575

Facts
o

Two brothers had a dispute and one owed the other money

Both brothers were residents of WA

B feared his assets were going to come under attack so he transferred interests in immovable
property in Malaysia to his wife and daughter (these transfers were executed in WA)

A wanted to bring an action against B to recover money and restrain dealing in property by
his wife and daughter to deliver property for auction

B argued Mozambique principle

Held
o

The court narrowly construed the Mozambique principle

This does not involve foreign immovable property, but auction sought by A is not about
title/possession to property as such

Trying to enforce personal obligation against WA residents not to deal with property
in any way that adversely affects As interests

The order against the wife and daughter in Australia not to do something in
Australia

23

Can restrain Australian resident from dealing with property in Malaysia

Private International Law


o

2010

If the matter is simply about a personal obligation, they will not construe this as falling within
the Mozambique principle

At CL there is still this exception

FOREIGN STATE IMMUNI TY


Foreign State Immunities Act 1985 (Cth) foreign state is immune from the jurisdiction of any court in
Australia. However there are exceptions for:

Submission

Commercial activities (vs public function): Victoria Leasing Aircraft Ltd v United States of America
(2005)
o

Eg contract for the supply of goods or services; agreement for a loan or some other
transaction for or in respect of the provision of finance; a guarantee or indemnity in respect
of a financial obligation

DIPLOMATIC AND CONSU LAR IMMUNITY


Diplomatic Privileges and Immunities Act 1967 (Cth) and Consular Privileges and Immunities Act 1972 (Cth)
implement the Vienna Conventions. They are limited to actions carried out in official capacity, if actions are
carried out in a private capacity the courts will have jurisdiction.
RESTRAINTS ON PROCEE DINGS
1.

2.

Restraints the forum court places on itself


o

International cases by a stay or dismissal of proceedings

Interstate cases by a transfer or stay of proceedings

Restraints the forum court places on litigant in another court


o

By anti-suit injunction

REGIE NATIONAL DES USINES RENAULT SA V ZHANG

Renault raised question of whether NSW was the appropriate forum to deal with this
o

Asking the court to recognise it had jurisdiction, but asked the court not to exercise that
jurisdiction

More than one court probably has jurisdiction in this case

Dont want P suing in all three forums

Forum non conveniens is the action one takes when one is asking a court with
jurisdiction not to exercise that jurisdiction

24

Private International Law

2010

RESTRAINTS THE FORUM COURT PLACES ON ITSE LF


INTERNATIONAL PROCEEDINGS
MARITIME INSURANCE CO LTD V GEELONG HARBOUR TRUST (1908) 6 CLR 194

Injustice to defendant because


o

Oppressive or vexatious; or

Ie P is trying to forestall some kind of action/get an unfair advantage by forum


shopping

Effectively P trying to initiate the action in the most inappropriate place and try to
undermine the action

An abuse of process; AND

Stay 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
geographic location of the forum. The principle also meant that a stay was highly improbable, and the plaintiffs
choice of forum only rarely displaced.
There were many criticisms about the approach taken by the HCA. This approach is not just about causing
damages to the defendant, but giving the plaintiff the right to sue where they want to sue and get any
advantage of invoking the courts jurisdiction approach is to give the plaintiff freedom of choice. This
approach made it difficult to argue for the defendant that an Australian court is an inappropriate court
plaintiff friendly approach (forum shopping?).
FORUM NON CONVENIENS
SPILIADA MARITIME CORPORATION V CANSULEX LIMITED [1987] 1 AC 460

The clearly more appropriate forum test

Court considers the forum with which the proceedings have the most real and substantial connection
by considering a range of connecting factors articulated by Goff LJ

Forum non conveniens is a Scottish law concept. If there is more than one potential jurisdiction and D
challenges, should consider which jurisdiction is the most appropriate jurisdiction if there is another forum
which is clearly more appropriate with jurisdiction, will stay and may even dismiss proceedings. This test makes
the court engage in a comparative exercise.
Connecting factors

Residence and availability of witnesses

Residence and place of business of parties to action

Law of the cause

25

In Australia, approach to tort is lex loci delicti

Only one factor amongst many and is not determinative

If the law of the cause is a foreign jurisdiction, this can be taken into account

Private International Law

2010

Legitimate jurisdictional advantage eg longer limitation period


o

If the reason doesnt exist in the other court, should give the plaintiff who has found
jurisdiction the right to give effect to that jurisdictional advantage

Having considered these factors, the court can restrain proceedings if it is satisfied that there is a clearly more
appropriate forum, with jurisdiction, where the proceedings could be determined more suitably for the
interests of the parties and the ends of justice.
In Lubbe v Cape Plc, the way 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. This was because the complexity of the claims was such that,
without the assistance that was available to the plaintiffs in England, the claims would have not been heard at
all in South Africa.
In proceedings in tort, English courts have accepted the place in which the tort is committed is prima facie the
natural forum for the determination of the dispute. Thus a plea of forum non conveniens is harder to sustain
when the plaintiff alleges a tort has been committed in the forum.
THE AUSTRALIAN APPROACH
OCEANIC SUN LINE SPECIAL SHIPPING CO INC V FAY (1988) 165 CLR 197

Brennan J
o

Geelong Harbour Trust

Deane and Gaudron JJ


o

Intermediate position clearly inappropriate forum test

Instead of asking which is the most appropriate forum, should simply ask ourselves
whether we are an inappropriate forum

Wilson and Toohey JJ


o

Spiliada

VOTH V MANILDRA FLOUR MILLS PTY LTD (1992) 171 CLR 538

Facts
o

P was NSW company, D was Missouri accountant

P took action against Missouri accountant

D had given a subsidiary of P some advice about tax that was negligent

Because of that negligence, a subsidiary of P suffered tax penalty which resulted in them
losing certain tax rights in Australia

Ps subsidiary company was a Kansas company, and D was in Missouri nothing to do with
Australia

To the extent that P had suffered some loss in Australia, the NSW court said they had
jurisdiction

26

D said they are not the most appropriate forum

Private International Law

2010

About US tax law between Missouri D and Kansas P

When NSWSC said had jurisdiction, application forum non conveniens

Held
o

Application for forum non conveniens succeeded on appeal in HCA

Confirms that, in Australia, a court can still only decline to exercise jurisdiction when the
proceedings are vexatious and oppressive, or an abuse of the courts process

On its face, no different from Geelong Harbour Trust

But also brought revision of courts understanding of the terms vexatious and
oppressive

If the court itself found it was a clearly inappropriate, proceedings would be


vexatious and oppressive

This was therefore a doctrine of forum non conveniens, but narrower than
Spiliada

The Voth test is still limited to actions being vexatious or oppressive, but gave it new meaning. The clearly
inappropriate forum test considers the same factors as Goff LJ did in Spiliada but only need to consider own
forums appropriateness. It is a very insular approach that is out of kilter with other common law jurisdictions
and ought to change. HCA (and many other courts that apply Voth) will readily listen to Ps claims it is plaintiff
friendly.
The only way a D will succeed is if they can show the court is clearly inappropriate. This has been said to be
exorbitant jurisdiction, allowing Aus courts to adjudicate on matters that other courts should adjudicate. It is a
self-focussed approach. The only circumstance in which the Voth test should provide a different outcome to
the Spiliada test was where the factors indicated that there was a more appropriate forum for the
determination of proceedings but where the court in Australia was not a clearly inappropriate forum.
REGIE NATIONAL DES USINES RENAULT SA V ZHANG
The defendant would need to show thata trial in NSW would be productive of injustice, because it would be
oppressive in the sense of seriously and unfairly burdensome, prejudicial or damaging, or vexatious, in the
sense of productive of serious and unjustified trouble and harassment
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 [at 521]
The upshot of applying the Voth test is that Aus courts readily consider matters which probably should be
adjudicated somewhere else (if applied Spiliada.) Australian courts quite readily apply foreign bodies of law
exorbitant jurisdiction, but ready access to foreign lex causae.

27

Private International Law

2010

In Renault v Zhang, the HCA interpreted vexatious and oppressive in a not dissimilar way to Geelong (limited
application of Voth in Renault.) Usually D will enter a conditional appearance and then bears the onus of
showing the court is a clearly inappropriate forum. In courts where you need leave to proceed and serve
against a foreign D, it is up to P to show that the court is not a clearly inappropriate forum.
PROCEDURE
The doctrine of forum non conveniens can 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
set aside: cf Henwood v Levesque Beaubien Geoffrion Inc. Forum non conveniens can also be raised in
proceedings where the court has jurisdiction as of right, either at common law or under the SEPA. The courts
will only stay proceedings in matters that raise issues internal to Australia in very rare cases (normally dealt
with by transfer under the Cross-vesting Acts.)
BEREZOVSKY V MICHAELS [2000] 2 ALL ER 986

House of Lords held trial judge erred in not taking into account a line of cases that established that the
place where a tort was committed was prima facie the most appropriate forum for the determination
of the dispute

This case puts into dispute Templeman LJs remarks that the only authority that should be cited to the
court in any application for a stay or dismissal on the ground of forum non conveniens was Goff LJs
speech in Spiliada

If it is possible to analogise from Spiliada to the position in Australia, the only authority that should be referred
to the court is the majority judgment in Voth. This sets out the principles by which the discretion to stay or
dismiss proceedings is exercised, and therefore the precise manner in which other cases have been decided is
rarely relevant.
LIS ALIBI PENDENS (SIMILAR PROCEEDINGS IN FOREIGN FORUM)

Where the defendant in the forum merely applies to have a temporary stay of proceedings pending
determination of the proceedings in the foreign place, the principles of Voth do not apply. The court has to
consider:

Whether the proceedings in the foreign place were commenced first

The stage they have reached

The effect that determination of the foreign proceedings would have on the proceedings in the forum

28

Private International Law

2010

If the defendant in the forum applies to either 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 make the proceedings in the
forum vexatious or oppressive, then the principles of Voth do apply. Thus the overriding consideration remains
whether the forum court is a clearly inappropriate forum for the determination of the proceedings: Sentry
Corporation v Peat Marwick.
Traditionally, the existence of identical or related proceedings in the 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: Cohen v Rothfield.
Lis alibi pendens is not in itself a ground to find forum non conveniens. From Henry v Henry factors other than
lis alibi pendens include:

Enforcement of foreign judgment in Australia

Extent of foreign courts jurisdiction

Relative connectivity of parties with forums

Ability of parties to participate in proceedings in relevant forums on equal footing

The stage the separate proceedings have reached

The costs incurred

BUT if foreign proceedings commenced first on the same issue, then primae facie vexatious and oppressive to
commence proceedings in an Australian court in relation to the same matter: Henry v Henry (1996) 185 CLR
571. In this case, there were divorce proceedings being litigated in Monaco. One party came to Australia and
commenced divorce proceedings in Australia. The proceedings were stayed on the basis of forum non
conveniens and was granted on the basis of lis alibi pendens.
To the extent that it signals a scenario that is prima facie 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. 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 discouraged under the principles of Voth.
JURISDICTION CLAUSES
1.

Non-exclusive jurisdiction clause


o

Parties agree to submit to the jurisdiction of a place but there is no further agreement
precluding either party from suing elsewhere

o
2.

Persuasive

Exclusive jurisdiction clause


o

Parties agree not only to submit to the jurisdiction of the courts of a foreign place but alos
agree not to sue in any other place

Eg disputes under this contract are to be referred only to the Supreme Court of Queensland)

Even when the clause is exclusive, an Aus court will not necessarily use that as a basis for
forum non conveniens

Highly persuasive but not necessarily binding on the court

29

Simply becomes one of a number of factors

Private International Law


o

2010

Brandon J in The Eleftheria [1970] 94 at 100

EXCLUSIVE JURISDICTION CLAUSES


There is no need for the term exclusive to be used for a forum clause to be classified as such, though a welldrafted agreement would use the term: Gem Plastics v Satrex Marine. A plea of forum non conveniens will be
harder to sustain if the exclusive jurisdiction clause places the determination of disputes in the forum: Bowport
Ltd v Alloy Yachts International.
Traditionally, the classification of a forum clause as an exclusive jurisdiction clause requiring disputes to be
dealt with in a foreign place has required the forum court to grant a stay or dismissal of proceedings unless the
most exceptional circumstances demanded otherwise.
OCEANIC SUN LINE SPECIAL SHIPPING CO V FAY

Brennan J required countervailing reasons to be proved before the court should refuse to stay
proceedings brought in breach of an exclusive jurisdiction clause

THE ELEFTHERIA [1970] 94 AT 100

In exercising discretion, a court should take into account all of the circumstances of the particular case
o

Where evidence is to be found, and effect of this on expense and convenience of the trial

Whether the law of the forum is to apply (choice of law clause?)

Connection of parties and degree of connection

Merely seeking procedural advantage

Whether plaintiff might be prejudiced by having to sue in foreign court

Deprived of security for their claim

Unable to enforce any judgment obtained

Faced with a time bar not applicable in England

For political, racial, religious or other reasons

Weighing against that factor are a number of factors (reflect what Goff LJ said)
o

If exclusive clause that said to sue in France, these factors suggest to sue in Australia, this
might outweigh that even though there is an exclusive jurisdiction clause

LEWIS CONSTRUCTION CO PTY LTD V M TICHAUER SA [1966] VR 341

Facts
o

Contract between Victorian corporation and French corporation for construction of a huge
crane on a dock on a building site

Crane brought over in pieces by ship, assembled and used in Victoria

Place where operator sits fell off and killed three people

Part of action was breach of contract

Clause in contract said in case of litigationthe only competent court was the Commercial
Court of Lyon

30

Private International Law

Relative convenience and expense (particularly of witnesses and evidence

P commenced action in Victoria

2010

Held
o

Hudson J held that it was for more than a balance of convenience that the proceedings be
tried in Victoria than France

Court went through balancing exercise suggested by Brandon J in The Eleftheria

Law of the cause is Australia, lex loci delicti is Australia

P would have to call many witnesses from Victoria, and D would have to call
witnesses from France but would have been insignificant in volume compared with
what P would have to provide

Combination of these factors meant Vic court found it did have jurisdiction and it would
exercise that jurisdiction even though there was an exclusive jurisdiction clause

Another question arose here

If parties who agree to exclusive jurisdiction clauses and parties freely go about
breaching their own contracts, this undermines the basis on which enter into
exclusive jurisdiction clause

Hague Convention on Choice of Forum Convention which tries to give effect to


choice of forum clauses in contracts

If we allow a Victorian court to simply ignore the contractual obligations of


those parties, actually endorsing a breach of contract
o

This is fine when you follow this process but it doesnt prevent the
D going to the court in France and suing the P in France for breach
of contract

Perhaps this is part of the balancing process by which


parties resolve their dispute

Some debate about the extent to which courts should


ignore these clauses because of the effect it has on
parties contractual obligations to each other

It seems likely that, where a foreign court has allowed litigation to proceed in breach of an exclusive
jurisdiction clause, the party who objected to the continuation of the foreign proceedings may be entitled to
damages in an Australian court for any loss caused by the breach of contract. Equally, litigants in an Australian
forum should be conscious that, if the court allows them to proceed in the forum in technical breach of an
exclusive jurisdiction clause, they might still be liable under the law of a foreign place especially the agreed
place for dealing with disputes for damages for breach of contract.
NON-EXCLUSIVE JURISDICTION CLAUSES
It is not an apparent breach of contract for the proceedings to be pursued in the courts of the forum: Akai Pty
Ltd v The Peoples Insurance Co Ltd. A non-exclusive jurisdiction clause is not as strong an argument as an

31

Private International Law

2010

exclusive jurisdiction clause for a stay or dismissal of proceedings commenced in the forum but is nonetheless,
a relevant consideration for the court to take into account: Green v Australian Industrial Investment.
INTERSTATE CASES
TRANSFERS

At common law
o

Arguable that provisions of the Cross-vesting Acts have effectively ousted the application of
the common law principles in interstate cases

Under its own rules of court; or

Cross-vesting Acts ss 5 & 13 (but transferring court may exercise jurisdiction)


o

Transfer made if, s 5

There are related proceedings in another court: Bankinvest AG v Seabrook (1988)

Court exercising cross-vesting jurisdiction

Interests of justice

The court gives a great deal of discretion to transfer from one court to another. Voth is not applied when
dealing with interstate actions more of a Spiliada approach.
BHP BILLITON LTD V SCHULTZ (2004) 211 ALR 523 AT 527
Gleeson CJ, McHugh and Heydon JJ
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
RESTRAINTS THE FORUM COURT PLACES ON LITI GANTS IN ANOTHER COU RT
An anti-suit injunction is a restraint a court places on another party to stop litigation somewhere else. 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 like imprisonment or sequestration can follow if the proceeding is not
discontinued.
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.

32

Private International Law

2010

CSR LIMITED V CIGNA INSURANCE AUSTRALIA LIMITED (1997) 189 CLR 345

Facts
o

In June 1995 CSR (Australian company) and CSR America (US subsidiary company) and others
brought proceedings against Cigna Corporation (US company) and Cigna Australia (Australian
subsidiary) in US District Court in NJ

Cigna companies obliged to indemnify CSR companies for loss the latter suffered as a
result of liabilities they incurred for asbestos-related injuries to third parties

Also alleged breaches of the Sherman Act (successful P could recover triple
damages)

In July 1995, Cigna Aus commenced proceedings against both CSRs in NSWSC

Sought negative declaration Cigna not liable to indemnify CSR companies in


respect of liabilities incurred as a result of any asbestos-related claims made in
either Aus or the US

Soon after, Cigna Australia applied for interlocutory anti-suit injunction restraining
the CSR companies from continuing the NJ proceedings

CSR companies then applied for stay of NSW proceedings on ground of forum non conveniens

Granted by Rolfe J in August 10, 2010

Refused in April 1996

Held
o

NSW proceedings should, pending the outcome of the NJ proceedings, be stayed on the
ground that they were oppressive

Purpose of NSW proceedings had been to prevent NJ proceedings from continuing (purpose
merely to prevent legitimate proceedings in the foreign court being continued)

Corollary to this conclusion was that the anti-suit injunction should not have been
ordered

NJ proceedings could not have been vexatious or oppressive, especially in light of


special damages available under the Sherman Act

33

Private International Law


o

2010

Principles relating to the granting of an injunction against a proceeding in a foreign court


should be tempered by considerations of comity

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

Accepted forum non conveniens and that injunction should never have been granted

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.
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:
1.

The forum court considers whether it should stay or dismiss the proceedings before itself: Voth

2.

If the forum court decides not to stay or dismiss proceedings, it must decide whether
a.

To require the plaintiff (in the forum) to apply to the foreign court for a stay or dismissal of
the foreign proceedings

b.

To grant the anti-suit injunction against the defendant (in the forum), restraining the foreign
proceedings

The procedure shows the relationship between the doctrine of forum non conveniens and the granting of antisuit injunctions. The central issue is where the matter in dispute between the parties is to be decided in the
forum or foreign court.
The grounds on which an anti-suit injunction can be granted spring from two sources:
1.

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

2.

There is a separate equitable jurisdiction to grant an anti-suit injunction


o

If the foreign proceedings amount to unconscionable conduct, the unconscientious exercise


of a legal right or reach 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: Continental
Bank NA v Aeokas Comania Naviera SA

APPLYING FOR A STAY IN THE FOREIGN COURT


The jurisdiction to grant an anti-suit injunction is one that should be exercised with caution: Socit Nationale
Industrielle Aerospatiale v Lee Kui Jak (per Goff LJ). It rests on the idea of comity the forum courts
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.
In Amchem Products Inc v British Columbia (WCB) 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
34

Private International Law

2010

injunction in the local court. 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.
However, in CSR, the majority pointed out that even in Amchem this was not a general rule. Nor could it be,
when the different circumstances in which an interlocutory injunction could be granted were taken into
account. The majority thought this step could not be expected when the injunction was granted to protect the
integrity of the local courts processes or when the defendant had brought proceedings in the foreign court in
breach of contract.
EXCLUSIVE JURISDICTION CLAUSES
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. The injunction will ordinarily issue to restrain the breach
of contract unless the defendant can show strong reasons why it should not: XL Insurance Ltd v Owens
Corning.
Parties that continue Australian litigation in breach of a foreign anti-suit injunction will not be exposed to the
contempt processes of the relevant Australia forum but may be under the law of the foreign place.
COMMONWEALTH BANK OF AUSTRALIA V WHITE

Byrne J found there was good reason for proceedings against Lloyds to continue in Victoria even
though the proceedings were brought in breach of an exclusive jurisdiction clause in favour of the
English courts

High Court of England and Wales not satisfied and granted an anti-suit injunction against the P in
Victoria to restrain the Victorian proceedings

Attempts made by Lloyds to have the Victorian proceedings stayed


o

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

Held, in VSC, that the stay should be refused


o

Comity did not require it

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 as appropriate that the Victorian court prefer its
own decision

Also remedies available in Australia that English law had not been proved to provide

Refusal of the stay would, nevertheless, be no defence to English proceedings for breach of the
injunction

35

Private International Law

2010

CHOICE OF LAW METHOD I


INTRODUCTION
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. 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
a court must decide whether there is a need to invoke a choice of law rule, and how that rule is to be invoked.
REGIE NATIONAL DES USINES RENAULT SA V ZHANG

Matter before the court was really about jurisdiction


o

Doesnt mean NSW court was the only court France, New Cal and NSW may have had
jurisdiction

French court has jurisdiction

Territoriality according to French law?

New Caledonian Court has jurisdiction

No territoriality (defendant not within jurisdiction) but tort within forum


according to New Caledonian law

New South Wales has jurisdiction

No territoriality (defendant not within jurisdiction)

Rely on ground of jurisdiction claimed in NSW UCPR Sch 6(e) damages


suffered in forum

NSW found that it was not a clearly inappropriate forum to hear the matter
o

Whichever court hears the matter has to decide how the matter will be dealt with

Has to decide what law to apply to resolve the dispute

Indicative rules indicate to the court what body of rules to resolve the dispute

Dispositive rules are rules that dispose of the matter (lex causae)
36

Private International Law

2010

The process by which the court determines what the indicative/dispositive rule is called the choice of law
method. Thus, the choice of law rule is a jurisdiction-selecting rule.
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 solemnization or the place where
the tort occurred) that effectively selects a legal system.
CHOICE OF LAW METHOD
The choice of law method is the method by which court determines whether a choice of law rule is invoked in a
particular case. The approach taken is not prescribed by law, and not necessarily always (or habitually applied):

Requires one of the parties before the case to raise the issue before the court

Quite often it is the defendant, because plaintiff initiates action in forum assuming forum law would
apply

There is an element of circularity in the choice of law method may come into the process at any of the stages.
Often the method is determined by area of law (multi-state marriage and property better adapted to method
than contract):

If the dispute is about tort, fairly obvious to those dealing with matters that it is obvious there is a
private international law issue

In other areas it is not quite so clear

FIVE STEP PROCESS


1.

Identification of a conflict of laws


o

2.

Identification of the possibility that a foreign body of law might apply

Classification of the subject matter


o

Need to conceptually classify the matter as one of contract/tort/property/marriage before


you can determine the choice of law rules, and then dispositive rules that apply

3.

4.

The classification of substantive or procedural law


o

Procedural laws are lex fori

Substantive laws may be foreign laws

Identification of choice of law rule


o

5.

What is the Australian rule that tells you whether to accept the foreign law

Application of the law of the cause


o

At the end of the process work out whether the plaintiff will succeed on the matter

IDENTIFICATION OF A CONFLICT OF LAWS


A choice of law rule only need be invoked if there is a conflict of laws. That is, there needs to be more than one
legal system and a different outcome from their application. If the same result would be achieved, it doesnt
matter which law is applied.
This question can only be answered after considering two subordinate issues:
37

Private International Law

2010

Which legal systems are possibly relevant to cases; and

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


The local court must first identify the legal systems that are possibly relevant to the cause. Herein lies the
circularity of this method. Local choice of law rules must be used to identify these possibly relevant legal
systems. The court must at this point identify which legal system would be relevant on application of any
choice of law rule currently obtaining in the forum. This process merely eliminates the need to consider laws
that are on any view irrelevant.
THE INTERNAL RULES OF THE POSSIBLY RELEVANT SYSTEMS
Once the possibility of 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.
A CONFLICT OF LAWS
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.

A true conflict is a difference between the application of laws and requires a choice of law rule to
break the deadlock

A false conflict is where either outcome would be the same under each legal system OR no evidence
of the other legal system and so it is presumed to be the same as that of the forum

GORE V OCTAHIM WISE LIMITED [1995] 2 QD R 242

Once it was determined that the Hong Kong Bills of Exchange Ordinance was substantially similar to
the Bills of Exchange Act 1909 (Cth), Williams J was able to decide the case in accordance with the
latter

Subsequent reference to a choice of law rule would have added nothing to the ultimate determination
of the proceeding

HYPOTHETICAL EXAMPLE
Example Mortensen page 167

38

Private International Law

2010

The Family Court recognises the identification of any possible alternative legal system by any choice of law ie
domicile, citizenship, place of marriage. The choice of law rules of Australia need to be considered generally to
determine which possibilities might match only place of marriage and domicile. This is simply a step to
eliminate those legal systems which clearly have no possible relevance.
Following this, the internal rules of each possible legal system need to be considered (ie choice of law rule
ignored for the present). Under Australian law, Rupert and Flavia would have a valid marriage. Under
Ruritanian law, the marriage is not valid and a court is unlikely to even consider an application, as no
application for annulment or divorce. If Hentzau included as a possibility, it is likely to be invalid.

CLASSIFICATION OF THE SUBJECT MATTER


The process of classification requires the court to allocate the subject matter of the proceeding to one of the
established choice of law classifications. Where a conflict exists, the need arises to apply a choice of law rule.
However, choice of law rules differ according to the classification (characterisation or qualification) of the
matter under dispute. That is, is it a property matter/contractual matter/tortious matter etc. The actual
classification may take place late in the proceedings when it becomes evident there is a PIL issue.
MACMILLAN INC V BISHOPSGATE INVESTMENT TRUST PLC (NO 3) [1996] 1 ALL ER 585

Facts
o

Matter was a dispute between P and three companies regarding ownership to companies
incorporated in New York

English judge immediately recognised there was a conflict of laws issue because the shares
are in companies in New York

39

Private International Law

2010

However must classify the matter in dispute

P was alleging they were the owners of the shares and there was a claim for
restitution
o

Based on claim for breach of trust

In England, breach of trust is place of breach

D agreed there was a breach of trust but argued the dispute was that the
interest they had to the shares was a priority because they were bona fide
purchasers
o

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 New York

Classification
Choice of law rule

Claim (restitution)
Breach of trust
Law of place where breach occurred

Law of cause
Outcome

England
Macmillan recovers

Defence (priorities)
Property
Law of place where property is situated
(lex situs)
New York
Macmillan fails

Held
o

P argued the court should classify the matter according to the issues P raises

This argument was rejected

Held it was the issue that was to be classified

Classification should occur by way of what the actual dispute between the parties is

In this case, the dispute was not about breach of trust because the
defendant admitted the breach of trust

The court will classify the matter

Classification is a matter of the lex fori

The classification is by reference to the forums classifications. However, classification of property as movable
or immovable is usually classified according to the law of situs.
APT V APT [1974] P 127

Marriage of wife (in England) by proxy in Argentina

Classification if issue as either


o

Formal validity of marriage (Argentina valid)

Essential validity/capacity to marry domicile (England invalid)

First step is to recognise there is a foreign element involved

Second step is to characterise the matter


o

Formal validity procedure of getting married

40

Was the person who conducted the marriage qualified

Private International Law

Were the witnesses appropriate

Essential validity ability as an individual to marry

This isnt about the capacity to marry, it is about the process of being married
o

2010

As soon as the classification was made, the case was decided

The method used was first to analyse the role and juridical purpose of the rule, and to take that into
account when deciding how to classify it

LEE V LAU [1967] P 14

Under Hong Kong law a husband had a wife and any number of tsipsis (concubines)

Concubines have a right to succeed property and all children are legitimate for the purposes of Hong
Kong

The law of Hong Kong said that it was a monogamous marriage

Classification is a matter of the lex fori


o

Dispute about rights to inherit property in Australia, therefore Australian law will classify

Australia classified as polygamous classification according to the law of the forum

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.
CLASSIFICATION OF SUBSTANTIVE OR PROCEDU RAL LAW
If the subject matter to be classified is one of substance, then a choice of law rule is used to identify the law of
the cause. If the subject matter is procedural, then the law of the forum applies exclusively.
The process of distinguishing between substance and procedure was variable and usually based on the
rights/remedies distinction. That is rights were determined by the substantive law and remedies by the
procedure of the court.
JOHN PFEIFFER PTY LTD V ROGERSON (2000) 203 CLR 503

Appeal from ACT that involved a workplace accident in NSW


o

NSW statute placed a cap on damages that could be recovered

Question was whether, from the territory courts perspective, the NSW cap on damages was
procedural

HCA took a different approach entirely

Procedure was held to be those which are directed to governing or regulating the mode or conduct of
court proceedings

Callinan J
o

Held procedure to comprise only laws and rule relating to procedures such as the initiation,
preparation and prosecution of the case, the recovery processes following judgment and the
rules of evidence

41

Private International Law

2010

Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ


o

Two guiding principles should be seen as lying behind the need to distinguish between
substantive and procedural issues. First, litigants who resort to a court to obtain relief must
take the court as they find it. Secondly, matters that affect the existence, extent or
enforceability of the rights or duties of the parties to an action are matters that, on their face,
appear to be concerned with issues of substance, not with issues of procedure. Or to adopt
the formulation put forward by Mason CJ in McKain, rules which are directed to governing or
regulating the mode or conduct of court proceedings are procedural and all other provisions
or rules are to be classified as substantive

Kirby J
o

Limited procedural rules to those that will make the machinery of the forum court run
smoothly as distinguished from those determinative of the rights of both parties

All judges agreed that limitation periods were substantive

In dispensing with the right-remedies distinction, procedure is back to the procedures of the courts

HCA thus saying that if there is a Renaul v Zhang situation where the likely law applied is New
Caledonia or France, that body of law will resolve a lot of issues

Procedure is only the rules that govern a case

Anything that governs rights and duties is substantive

Giving foreign jurisdiction greater effect

Procedure is therefore to be read narrowly

Nevertheless, uncertainties still prevail:

Law of evidence likely to be procedural


o

Some rules of evidence are so intricately connected to the matter before the court they may
not be

Burden of proof likely to be procedural

Presumptions like evidence


o

See Re Cohn [1945] Ch 5

Statutes of fraud procedural in the past but now open to question

Remedies largely procedural in the past but now open to doubt

Damages heads of damage are regarded as substantive while quantification (such as caps) regarded
as procedural until Pfeiffer
o

Some clarification now evident from Regie Nationales des Usines Renault SA v Zhang (2002)
210 CLR 491; BHP Biliton Limited v Schultz (2004) 211 ALR 523; Neilson v Overseas Projects
Corporation of Victoria Ltd (2005) 221 ALR 231

In Regie majority willing to reserve for further consideration whether Pfeiffer applies
for foreign tort

42

Private International Law


o

2010

Australia was willing to trust other State courts but not foreign courts with respect to
damages

Limitation periods regarded as procedural in McKain v RW Miller & Co (South Australia) Pty Ltd
(1991) 174 CLR 1
o

Legislatively overruled in each State and Territory (eg Choice of Law (Limitation Periods) Act
1996 (Qld)), so that if the law of the cause is that of another State or Territory, that State or
Territorys limitation period is to apply

Limits forum shopping

Effect of Pfeiffer is to endorse this approach ie limitation periods as substantive


law

REGIE NATIONAL DES USINES RENAULT SA V ZHANG (2002) 210 CLR 491, 520
Per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ
In Pfeiffer, reference is made to the difficulty in identifying a unifying principle which assists in making the
distinction, in this universe of discourse, between questions of substance and those of procedure. The
conclusion was reached that the application of limitation periods should continue to be governed by the lex loci
delicti and, secondly, that:
all questions about the kinds of damage, or amounts of damages that may be recovered, would
likewise be treated as substantive issues governed by the lex loci delicti
We would reserve for further consideration, as the occasion arises, whether that latter proposition should be
applied in cases of foreign tort.
IDENTIFICATION OF CH OICE OF LAW RULE
Once the issue is classified, then the choice of law can be identified. The court will usually have identified the
result of the application of a foreign law as the law of the cause, so its application is simply then endorsed. But
what happens when, applying the foreign law as the lex causae, we include the foreign choice of law rules,
which then refers the choice of law question back to the forum or even to another state?
Example Mortensen page 167
Before moving onto classification, the court recognises that the substantive law of the countries is different. It
is unlikely a choice of law rule would lead to Hentzau. In classifying the dispute, under common law formal and
essential validity is required. If formally valid, Australian law applies (marriage in Australia.) However, for
Rupert & Flavia the issue is the essential validity of the marriage and is governed by the law of the domicile of
the parties eg Ruritania.
Ruritanian law about what you can bring before the court classify as procedural or substantial. The
mechanism by which the court is asked to recognise validity or invalidity it is likely Australian courts wont
take this into account because it is a matter of procedure. However, the law about sister-in-laws is substantive.

43

Private International Law

2010

APPLICATION OF THE LAW OF THE CA USE


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). If choice of law method has been followed closely,
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 legal system.

44

Private International Law

2010

CHOICE OF LAW METHOD II


INTRODUCTION

FIVE STEP PROCESS


1.

Identification of a conflict of laws

2.

Classification of the subject matter

3.

The classification of substantive or procedural law

4.

Identification of choice of law rule

5.

Application of the law of the cause

COMPLICATIONS

Dpeage

The incidental question

Renvoi

Exclusion of unacceptable laws

DPEAGE
Dpeage means to divide. In multi-state cases, it 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.
There are two or more issues in dispute, each of which gives rise to a conflict of laws. Dpeage admits that
each issue is dealt with by a different choice of law rule, and so a different law of the cause. The result is one
which probably not that of each legal system alone. It is marked in contract.
Validity of marriage

Formal validity and essential validity


45

Private International Law

2010

Form of dpeage
o

Dividing issues into different matters each which have separate choice of law rules and will
take you to separate dispositive bodies of law

Contract governed by two separate choice of law rules

Deals with a range of complex issues and may find that in one aspect that contract is to be governed
by the law of State A and in another respect is to be governed by the law of State B

THE INCIDENTAL QUESTION


The incidental question is where there are two issues in dispute, each of which gives rise to a conflict of laws. If
normal choice of law rules are applied, they would be determined in accordance with different choice of law
rules. 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 a
main and a preliminary issue. The incidental question makes the preliminary issue incidental to the main issue
even in circumstances where they could theoretically be dealt with separately.
SCHWEBEL V UNGAR (1964) 42 DLR (2D) 622

Facts
o

U born in Hungary (domicile of origin) and married W in Hungary

Both Jewish and had to flee Hungary and decided to go to Israel after the war

As they travelled through Italy they went through the Jewish religious divorce process Gett

Requires one party to denounce another party

Only a religious ceremony does not occur in court

Both arrived separately in Israel and became domiciled in Israel

Some stage later, U travelled to Canada and meets and marries S

S wants to end the marriage and applies to the court for a declaration that the marriage is
void on the basis that U already married

The Gett was not effective

Issue
o

The main issue was whether U had the capacity to enter the second marriage

Normally a question for the lex domicilii at the time of the second marriage, the law
of Israel

46

Private International Law


o

2010

Was the divorce by Gett effective?

Normally a question for the lex domicilii at the time of the divorce, the law of
Hungary

In order to determine whether U had the capacity to marry, had to determine whether the
divorce was effective

At the time of getting divorced in Italy, domiciled in Hungary

Held
o

According to the preliminary question, in the First Court in Canada, the Chief Justice said this
was a classic case of dpeage

If applied the law of Hungary, the divorce is not effective

Hungarian law did not recognise divorces like the Gett, had to go to court
o

If this was the case she did not have the capacity to marry

According to the law of Israel, persons who are already married


cannot get married again

If you deal with these issues separately, the marriage between S and U would be
annulled

47

The Court of Appeal disagreed with the lower court

Private International Law

2010

The main question is whether U had the capacity to enter into this marriage

There is a preliminary question about the divorce

If the issues are separated into two, would deal with two different choice of
law clauses
o

The one issue was really an incidental question to the main issue

Once you determine what is actually in dispute and determine the choice of law that
follows on from that classification, should use that choice of law for the entire
matter

Ignore the second choice of law rule

Israeli law should determine all issues that are incidental to the main issue

Treat the preliminary issue as incidental to the main issue, and deal with both issues
by the law governing the main issue ie the incidental question technique

Determining that matter as an actual court in that country would


o

Have a judgment that reflects the kind of judgment that would


occur in any one single jurisdiction

HAQUE V HAQUE (NO 1) (1962) 108 CLR 230

Incidental question approach appears to be followed in Australia

Facts
o

Muslim Indian national who retained Indian domicile but spent time in WA

When arrived in Australia was already married, but took a second wife in WA

Could not marry according to the laws of Australia but was able to in a traditional
Muslim ceremony

As part of the ceremony, entered into an agreement that said children of


that marriage would be legitimate and would inherit under him

When he died he left property to his brother but none to the children of his first or second
marriage

The question was whether these children could succeed under the law that would govern his
succession both testate and intestate

Held
o

The choice of law rule that applies to determine succession to property is the lex loci domicile

Indian law would govern the validity of his children to inherit under him

Their ability to inherit depended on whether they were legitimate

The law of India recognised Islamic law as the testators personal law, and therefore
that the children of the second marriage were entitled to share in the movable
property

Main question was whether the children of the second marriage were entitled to share in the
testators movable property

48

Private International Law

2010

Governed by the law of the place where the testator was domiciled at the time of his
death

Preliminary question was the validity of the children as legitimate children and the marriage
entered into

This question was incidental to the succession question

Recognised not the polygamous marriage but the effects of that marriage because at the
heart of the matter was the succession question

RENVOI
Revoi is a conflict of conflict rules ie choice of law rules. 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.

A remission is where the foreign choice of law rule remits to the law of the forum

A transmission is where the foreign choice of law rule transmits to a different foreign law

COLLIER V RIVAZ (1841) 2 CURT 855; 163 ER 608

Facts
o

R born in Ireland but spent most of his life in England

Towards the end of his life he moves to Belgium and dies there

R left will and number of codicils within will (adds/detracts from will)

Parties were unhappy with the contents of the will

Challenged the validity of four of those codicils in an English court

Lex fori is England and English law

The court that considers this issue recognises, probably because the parties have raised it, the fact
there are two legal systems involved (Ireland could also possibly still be there)

The court looks at the contents of the law that would apply to those facts to see if there was a conflict

49

If English law, codicils valid

If Belgian law, codicils invalid

Private International Law

2010

Held
o

Recognised conflict of laws

Look at choice of law rules to resolve

Also look at Belgiums choice of law rules the law of the place where
domiciled at death will determine the validity of the will and will inherit
property under those rules
o

Englands choice of law rule is the law of the domicile at his death
o

Domicile at death was Belgium

Therefore, codicil invalid

What is meant by Belgian law?

Does this just mean Belgian rules about succession or Belgian choice of law
rules as well?
o

When Belgian law says succession is determined by the lex loci


domicilii, domicile is interpreted differently

England where you make your home

Belgium your nationality

R kept English citizenship when he moved to Belgium


o

If Belgium had to deal with the validity of the will, would apply the
law of England

English courts need to decide how the Belgium court reacts to the situation where
the matter will be turned back to them

Belgium court would reject the remission and apply English law

When you apply a choice of law rule which leads to Belgium, it requires you to not
only deal with Belgiums internal laws about codicils but Belgiums choice of law
rules

This is where there is a conflict of conflict of law rules

SOLUTION 1: IGNORE THE RENVOI


Ignoring the renvoi means the forums choice of law rules are not permitted to pick up the choice of law rules
of a foreign forum, so it disregards a potential remission or transmission. This may lead to deciding the matter
differently to the way another country might deal with a matter.

50

Private International Law

2010

In Collier v Rivaz, England might end up applying Belgian law. If the matter were actually litigated in Belgium, a
Belgian court, if it ignored the renvoi, would apply English law. The two entities would have different outcomes
this encourages forum shopping. If Belgiums conflict of law rules was lex loci domiclii at the time of death
there would not be a problem. Where the internal laws are the same, the forums laws are applied ie England
would have recognised Beglian law was the same.
SOLUTION 2: DSISTEMENT
The foreign law, according to its own terms, does not give an answer. Accordingly, the forums choice of law
rule has not identified an appropriate law of the cause, and the forums choice of law method fails. Therefore
the forums internal law is applied by default. This theory is the same as ignoring the renvoi if it arises.

In Collier v Rivaz Englands choice of law rule was domicile at time of death. Belgian law either remits the
matter back to England or transmits it onto Ireland, but doesnt give an answer. This is actually simply
recognising the conflict of conflict of law rules. Assume this jurisdiction doesnt help you to resolve the issue
and the internal rule is simply applied. The effect is the same as ignoring the renvoi. However there is a slightly
different effect in that the forum is applying its own rules in default. Under dsistement, a forum would
actually look at the choice of law rules of the other jurisdiction.
SOLUTION 3: ACCEPT THE RENVOI (SINGLE RE NVOI)

This is one of the most common ways of reacting to the renvoi often called the single renvoi. On only one
occasion will another countrys choice of law rules be considered.
REMISSION
The forum court refers the question to the foreign forums choice of law rules. If the law of the foreign forum
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. This is the result the law of the foreign forum intended.

51

Private International Law

2010

If in Collier v Rivaz the choice of law rule says domicile at the time of death, considering the internal and choice
of law rules choice of law says nationality at time of death eg England. Therefore, would go back to English
laws, but only the internal rules. The result achieved in a sense is the same that would have occurred had the
matter been decided in the Belgian court, so there is some elimination of forum shopping. However, the way in
which Belgium reacts to renvoi has not been considered accepted that Belgium either goes to the internal
rules of England/Ireland, but not what Belgiums reaction to that is.
TRANSMISSION
The single renvoi theory has a different result in the case of a transmission. The forum court accepts the foreign
courts transmission and applies the internal law of the third forum as the law of the cause.

SOLUTION 4: REJECT THE RENVOI


This often happens for remission, not transmission. For this method there is only one go at the renvoi eg if a
choice of law rule says to apply a foreign body of rules, it will not apply internal rules to the matter. The result
is the same as ignoring the renvoi, with the forum difference that the foreign choice of law rule is recognised,
though not applied.
If the law of the foreign forum remits the question to the law of the forum, the court in the forum rejects that
remission and applies the law of the foreign forum as the law of the cause.
If the law of the foreign forum transmits the question onto a third countrys laws, the forum court rejects the
transmission and applies the law of the foreign forum.

52

Private International Law

2010

SOLUTION 5: FOREIGN COURT THEORY (DOUBLE RENVOI)


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 the foreign forum had adopted. This approach emphasises consistency in
outcome with the foreign court and therefore discourages forum shopping. It adopts the result in the case the
foreign forum would have reached, having applied its own choice of law rule, and its particular solution to the
problem of renvoi.
When there is a choice of rule that sends a forum to another jurisdiction, should pretend to be a judge in that
other jurisdiction and do exactly what that other jurisdiction would do. This takes into account internal rules,
choice of law rules and the other jurisdictions attitude to renvoi.

If the foreign court ignores the renvoi, it the foreign court will apply the internal law of the forum, F. The
forum court will apply the law of F.
If the foreign court accepts the renvoi, it the foreign court will apply its own internal law, X. The forum court
will apply the law of X.
If the foreign court rejects the renvoi, it the foreign court will apply the internal law of the forum, F. The
forum court will apply the law of F.
NEILSON V OVERSEAS PROJECTS CORPORATION OF VICTORIA LTD (2005) 221 ALR 213

Facts
o

N domiciled in WA wife of an employee of a Vic company

Vic company had contract for work to be done in China

N and husband go to China and Vic company have provided flat which has a staircase with no
banisters

53

Private International Law

2010

N asks for it to be fixed

Company renting the flat say they will fix it but never do

N falls and is injured because of the negligence in China of the Vic company

Limitation period in China expired so brings actions against husbands employer in WA

Held
o

More than 1 jurisdiction involved WA and China

This is a matter of tort lex loci delicti

Chinas law will apply if there is no difference just apply WA law because there is
no conflict of laws

Question is where Chinese tort law that applies, including limitation period, do you also have
to look at Chinese choice of law rules?

Double renvoi

Aus conflict of law rule for tort is lex loci delicti

It is the same in China, but there is an exception


o

Even if the tort occurred in China, if D and P were both foreign


nationals of the same nationality, it is the law of the nationality
that will apply

Chinas attitude to renvoi

On evidence before the court, they found that a Chinese court would ignore the
renvoi and would simply apply a 6 year limitation period

Apply Australian double renvoi theory and N succeeded

HCA said they can apply this theory across classifications

On the facts it is limited to tort at least for tort, Australia would adopt a double
renvoi theory

Eliminates forum shopping

Ultimately the party that was going to pay was the NSW insurer

Giving effect to Chinese choice of law rules doesnt give a proper answer

54

Private International Law

2010

Single versus double renvoi compared


Single renvoi

Double renvoi

There are a number of places in the judgment where the application of the double renvoi theory is phrased so
broadly it could apply to a range of classifications. There are a number of commentators who suggest this
should not be done. A significant body of case law does apply double renvoi theory, but with regard to
succession to property.
RE ANNESLEY, DAVIDSON V ANNESLEY [1926] CH 692

Facts

55

Testatrix died in France in 1924 leaving a will disposing of her movable property

British subject domiciled in France at the time of her death

British internal law (dispositive rule) will was valid

Private International Law


o

2010

French internal law (dispositive rule) will party valid

Only 1/3 of estate could be dealt with by will

Other 2/3 had to be distributed to the testatrixs children

Conflict of internal rules

English choice of law rule

Succession of movables determined by law of the place where the deceased was
domiciled at time of death

French choice of law rule

Succession of movables determined by law of the place where deceased was a


national at the time of death

Choice of law rules for succession to property in England different to France

If apply single renvoi, then the English court would apply both the internal and choice of law
of France

Choice of law rule would remit the matter back to England

The will would be valid

Held
o

English court applied double renvoi

The English court put itself in the shoes of the French court

Considered both its internal rules, choice of law rules and its attitude to the
conflict of choice of law rules

French court would have applied English law, but English law would have
sent the matter back to France
o

France would accept the renvoi

The court was satisfied Frances attitude was to adopt a single renvoi theory

On that basis, the English court found the will to be valid to 1/3

RE ROSS, ROSS V WATERFIELD [1930] 1 CH 377

Facts

56

English national leaves will which is contested

Deceased domiciled in Italy

Private International Law

2010

In Italy, have to leave half of property to son

Held
o

English court adopted double renvoi theory

Italian court would apply its internal rule and choice of law rule as well

The court found Italy rejects the renvoi English court applied English internal rules

In terms of a remission, will always determine based on nationality at death

Foreign court theory assumes the common law does not have a solution to the problem of renvoi. It assume
that the foreign country does have a solution to the problem of renvoi: Re Duke of Wellington [1947] Ch 506.
It does not always apply the foreign solution to renvoi. It is sometimes the foreign solution as adjusted by the
law of the forum: Simmons v Simmons.
SIMMONS V SIMMONS (1917) 17 SR (NSW) 419

Led to similar position in Annesley

English national domiciled in France (New Caledonia)

Question was what (as a British subject) was the deceaseds national law applicable to a question of
intestacy?

Evidence before the court suggested the French court would reject the renvoi
o

Nine years later, evidence suggested French court would accept the renvoi

Relying on evidence before the court as to how a foreign court would act
o

Outcome achieved is not necessarily the same as if a matter was heard in the foreign court

Only relying on evidence before the court

In many of these cases have an English court applying a foreign choice of law rule which refers you to
nationality

SHORTCOMINGS OF DOUBLE RENVOI


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. 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 laws has any close symmetry to the true position of the foreign law.
EXCLUSION OF UNACCEP TABLE LAWS

Unrecognised states

Penal laws

Revenue laws

Expropriation laws

Foreign governmental interests

Public policy

57

Private International Law

2010

FOREIGN GOVERNMENTAL INTERESTS


When the law is something which is really about a foreign government trying to effect its public laws.
ATTORNEY-GENERAL FOR NEW ZEALAND V ORTIZ [1982] QB 349

Attempt by NZ government to get Maori carvings back from Ortiz who was a collector of cultural
heritage on basis that he had smuggled them out without an export permit and those goods were
forfeit to the State

House of Lords said trying to give effect to a government statute

Because body of law is giving effect to a government interest, will not give effect to it

ATTORNEY-GENERAL FOR THE UNITED KINGDOM V HEINEMANN PUBLISHERS PTY LTD & WRIGHT (THE
SPYCATCHER CASE) (1987) 10 NSWLR 86; (1988) 165 CLR 30

Employee breached employment conditions not to speak about matters governed by the Official
Secrets Act

Trying to give effect to government interest in effect to giving effect to Official Secrets Act

PUBLIC POLICY
Ability or discretion of a court when according to choice of law rules have to apply body of foreign dispositive
rules, will not apply foreign dispositive rules if they infringe some Australian public policy.

To enforce the foreign law is seriously detrimental to the interests of the forum

To enforce the foreign law would cause injustice in the circumstances of the case

The content of the foreign law is morally unacceptable (including that it is in breach of public
international law to the extent that public international law conforms to domestic law)

OPPENHEIMER V CATTERMOLE (INSPECTOR OF TAXES) [1976] AC 249

Body of laws that choice of laws would have led to would require court to give effect to laws in Nazi
Germany to prevent Jews from owning property

If choice of law rules take us to a body of laws that are Nazi anti-Semitic laws, will not apply those laws
on the basis that they are against public policy

KUWAIT AIRWAYS CORPORATION V IRAQ AIRWAYS CO [2002] 3 ALL ER 694

Lord Hope of Craighead (at 247)


o

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

The majority held that Resolution 369 offended public international law and English public policy and
therefore wouldnt be applied

58

Private International Law


o

2010

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

PROOF OF FOREIGN LAW


The content of foreign law is treated as a question of fact, not law. Therefore, it must be pleaded and proved
by evidence. The onus of proof lies with the party who claims that the law of the cause differs from the law of
the forum.
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. The fact that it
is open for the parties to either plead and prove, or ignore the potential application of, foreign laws makes the
choice of law method optional. It is only invoked if one of the litigants wants it.
PRESUMPTION OF IDENTITY
Foreign law is essentially facts seen through the eyes and procedures of the forum. A party is required to raise
foreign law cf Damberg v Damberg (2001) 52 NSLWR 492 where parties were not allowed to agree to facts that
werent facts.
Failure to plead, or to prove results in:

Presumption that the foreign law is the same as that of the forum

The law of the forum applied in default where the foreign law is not proved

59

Private International Law

2010

PERSONAL CONNECTING FACTORS


INTRODUCTION
Many choice of law rules use a personal connecting factor to determine the law of the cause. Eg choice of law
rule for intestate succession to moveables is the law of the place where the deceased was domiciled at time of
death.
Some choice of law rules are not dependant on a personal connecting factor. Eg Choice of law rule for intestate
succession to immovables is law of the place where the immovable is situated. Also, the choice of law for tort is
the place where the tort occurred.
Lex domicilii
personal law

Common law
territorialism

Evolved from
Roman law to
become
connecting
factor

Only
connecting
factor was
presence
within territory

Domicile is of a Roman law origin. In Australia there is a combination of domicile and territorialism. A person is
subject to Australian public law absolutely it doesnt matter who they are. However, for certain private
purposes, the fact you are Australian doesnt mean you have forgone this body of law.
PERSONAL CONNECTING FACTORS

Domicile

Citizenship (or nationality)

Residence

RELATIVE CONCEPTS

A person can only have one domicile at any one time. In Australia, there is no difference between nationality
and citizenship. When a foreign state uses nationality, it is quite often the case they mean something closer to
citizenship.

60

Private International Law

2010

DOMICILE
Domicile is a common law concept (and not used in this form outside the common law world.) Domicile at
common law has to some extent been amended by legislation Domicile Act 1982 (Cth), and Domicile Act 1981
(Qld). The Domicile Acts commenced on 1 July 1982 and are entirely prospective. If domicile needs to be
determined prior to 1982, common law is applied.
Types of domicile

Domicile of origin

Domicile of dependence

Domicile of choice

Each person has, at the one time, only one domicile for any one purpose (but has both State and federal
domicile for different purposes): Lloyd v Lloyd [1962] VR 70.
RE BENKO DECEASED [1968] SASR 243

Hungarian came to Australian and acquired Australian domicile but didnt acquire permanent or
indefinite presence in any one state

For purposes of State legislation, the court said that if cant identify which state is domiciled out, has
to still have a domicile of origin in Hungary

Cf Domicile Acts the person has for the time being the closest connection

DOMICILE OF ORIGIN
A persons domicile of origin is ascribed at birth. The common law rule is that a legitimate child takes fathers
domicile at time of birth, and an illegitimate child takes mothers. Foundlings take domicile where found.
If a marriage is annulled, at common law a child became illegitimate. Under s 91 Marriage Act 1961 (Cth) a
child is legitimate if either parent had reason to believe in validity.
Frrom 1 January 1979, removed illegitimacy s 3 Status of Children Act 1978 (Qld). 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 problem with this section is that it then didnt say what domicile or
origin a child would have been regarded as illegitimate would take the parent with whom they are staying.
At common law, the domicile of origin is only replaced when:

Clear evidence of new domicile

Always capable of being revived: Udny v Udny

The Domicile Acts abolished the rule of revival (but still applied if domicile needs to be determined at a date
prior to 1982.) For any point after 1982, cannot reacquire your domicile of origin not a revival, simply a
domicile of choice.
DOCTRINE OF REVIVAL
The doctrine of revival has been abolished under s 7 Federal Act and s 6 State Act (as at 1 July 1982).
61

Private International Law

2010

UDNY V UDNY (1869) LR 1 SC&DIV 441

Facts
o

In England, racked up debt so goes to France

Gives up English domicile

Lives in France only for the purpose of evading his creditors

Returns after they wont pursue him

Question whether the son was legitimate or illegitimate

Depends on the domicile of the father

Never acquires domicile of choice

Scotland, England, France

Had to give up his English domicile to leave, but never acquired French domicile

Held
o

Because he had lost that domicile of choice and not acquired another, there was a vacuum

Simply applied domicile of origin revived

Scottish law would determine whether the child was legitimate

DOMICILE OF DEPENDEN CE
Where a person does not have the legal capacity to acquire a domicile of choice, that persons domicile is
known as a domicile of dependence. For minors, domicile follows that of their parents until majority. For
married women, at common law their domicile depends on their husbands: AG (Alberta) v Cook [1926] AC
444. Abolished by s 6 Federal Act; s 5 State Act. For the mentally ill, domicile freezes as the time of incapacity
arose. If incapacity arose in minority, domicile depends on relevant parents, even after majority is reached.
DOMICILE OF CHOICE
Domicile of choice requires two factors:
1.

Presence (or factum)

2.

Intention (or animus manendi)

PRESENCE
For presence, length of time is immaterial, bare presence is sufficient. If there is a dispute, you have to adduce
evidence of what your intention is.

62

Private International Law

2010

WHITE V TENNANT 8 SE 596 (1888)

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

MARRIAGE OF FERRIER-WATSON AND MCELRATH (2000) 155 FLR 311

Factum required residence in the new place

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

Held length of a lawful presence in the new country was immaterial

Factum can amount to a bare presence in a place that is intended to be home

INTENTION
Intention (or animus) at common law is an intention to reside permanently in the place. Intention of leaving
domicile of origin in itself is insufficient, as is intention to acquire a new domicile in the future. It must be freely
chosen ie not a duty foreign posting, relief from illness, escape creditors. However, this can be overridden by
other factors it is just that this in itself will not show a new domicile.
An intention to reside permanently or indefinitely in the new country or State is required: s 10 Federal Act; s 9
State Act. The Acts thus introduced another element indefinitely instead of permanency. You dont have to
envisage being there forever, but have to be there indefinitely. There is no limit to factors which could go to
determining animus.
RE FURSE DECEASED; FURSE V INLAND REVENUE COMMISSIONERS [1980] 3 ALL ER 838

When he died, ability to leave property became subject to domicile at death England or New York

If unable to manage farm in England, would move to house in New York

Question was whether he intended to remain in England indefinitely


o

Was that contingency likely to occur, if it was and he envisaged leaving England he didnt
have an English domicile

Contingency unlikely to eventuate and therefore no real limitation on acquiring domicile in England

OSVATH-LATKOCZY V OSVATH-LATKOCZY [1959] SCR 751, 19

Lived in Canada but declared that he would go back to Hungary if the Russians were out of Hungary
but also that there was no hope or expectation that political conditions would permit return

Never really envisaged being able to go back to Hungary

Contingency unlikely, so domicile of choice as Canada

Canadian residence likely to be indefinite

IRC V BULLOCK [1976] 3 ALL ER 353

63

Private International Law

2010

On retirement from RAF, return to Nova Scotia, but wife objected


o

Return dependent on changing her mind or her predeceasing husband

Knows he wont be indefinitely in the UK

Court said his intention to remain there was quite clear


o

Sufficiently definite from preventing him from acquiring a domicile of choice in England

MARRIAGE OF FERRIER-WATSON AND MCELRATH (2000) 155 FLR 311

Residence is the very best evidence of required intention

No limit to factors includes for example, purchase of property, extent of business dealings, acquiring
nationality

Fact that you live in this jurisdiction is the best evidence of the fact you have acquired a domicile in
this jurisdiction

REFUGEES/TEMPORARY RESIDENTS/ILLEGAL RESIDENTS


Refugees and temporary residents are capable of having a domicile of choice in Australia. Australian authorities
suggest illegality is a bar to domicile of choice. The fact you can show presence and intention to reside in a
place means people like refugees and illegal immigrants can acquire a domicile of choice. Refugee in Australia
tends to suggest you are awaiting to return to a country reality is that many refugees dont intend to return.
Common law only requires presence and intention, doesnt say anything about illegality. However the fact that
at common law one can acquire a domicile doesnt affect your public law obligations as an illegal immigrant.
MARK V MARK [2005] 3 ALL ER 912

Establishing jurisdiction in divorce proceedings between couple originally domiciled and married in
Nigeria

Woman was an illegal immigrant

English court said for the purposes of marriage, she had the intention to reside in the UK indefinitely,
she was in the UK, therefore acquired UK s her domicile

CITIZENSHIP

Australian citizenship

Foreign citizenship (as recognised by Australian law)

Dual citizenship

AUSTRALIAN CITIZENSHIP
Initially there was only British subject status. The Australian Citizenship Act 1948 (Cth) created the additional
status of Australian citizen. British subject status was abolished for Australian citizens in 1981, s 37 British
Nationality Act 1981 (UK) Australian citizens are Commonwealth citizens for the purposes of UK law.

64

Private International Law

2010

The Australian Citizenship Act 2007 (Cth) lists five grounds:

Birth

Adoption

Descent

Grant

Residence

LOSS OF AUSTRALIAN CITIZENSHIP

Renunciation

Revocation by minister eg conviction of certain offences

Service in hostile armed forces

Children of responsible parents who cease to be citizens

FOREIGN CITIZENSHIP
WHEN WILL AUSTRALIAN LAW RECOGNISE IT?
Foreign citizen may be important if foreign citizen has connecting factors with some body of law we have to
apply eg in Oppenheimer when the laws of Nazi Germany said Jews cannot be citizens, they refused to
recognise that body of law.
The general rule is that Australian law recognises that a person has a foreign citizenship (or has lost such
citizenship) when the relevant foreign law recognises that the person is a citizen: Sykes v Cleary (No 2).
The exception is that Australian law does not recognise the foreign citizenship when the foreign lwa does the
person has taken reasonable steps to discharge the foreign citizenship: Sykes v Cleary (No 2).
SYKES V CLEARY (NO 2) (1992) 176 CLR 77

Facts
o

Federal by-election

2 candidates were originally from Greece/Switzerland

Both were born overseas and were overseas nationals because of their birth, had
both taken up Australian citizenship

At the time they took out Australian citizenship in oath was requirement that renounce
allegiance to foreign country

Under Australian law, foreign national cannot stand for Parliament

Laws of Greece/Switzerland allowed them to only renounce their citizenship based on


application

65

Neither of these candidates had done that

Private International Law

2010

Held
o

HCA ruled that both of these candidates were still candidates of the foreign countries and
therefore could not stand for parliament

They had not taken reasonable steps to renounce their citizenship

There are circumstances where it might not be possible to renounce their citizenship

If there are no reasonable steps to renounce, even if foreign country recognises Australia will
not

RESIDENCE
Residence is unusual as a connecting factor but it does arise eg formal validity of a will can be determined by
the law of the place of habitual residence. There are variable terms residence, ordinary residence, habitual
residence. It is probably ordinary residence that indicates the most permanent attachment.
Resident uncertain whether a persons presence must have some degree of relative permanence: Re an
Infant [1981] Qd R 225; cf Re Taylor; ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194. Some continual
presence there is necessary common sense approach to what residence is.
Ordinary residence: Akbarali v Brent London Borough Council [1983] 2 AC 309, 343, 4 per Scarman LJ
a mans abode in a particular place or country which he has adopted voluntarily and for
settled purposes as part of the regular order of his life for the time being, whether of short
or of long duration .
Habitual residence is used by the Hague Child Abduction Convention and the Hague Child Protection
Convention. An appreciable period of residence is habitual: Re J (a minor: abduction) [1990] 2 AC 562, 578.
This concept is not prevalent in Australian law, and it is rather difficult for the legislature and those responsible
for implementing these conventions to understand what is meant by habitual residence not clear how this
distinguishes from ordinary residence. More is required than for domicile continual presence is not required
for domicile.

66

Private International Law

2010

STATUTE AND THE CHOICE OF LAW


METHOD
INTRODUCTION
There are two ways in which statutes can effect the choice of law method:
1.

Statute itself can apply a choice of law rule eg Marriage Act 1961 (Cth)

2.

Where the statute is part of the potentially applicable law of the cause (lex causae)

In the first instance, the statute impedes on the choice of law process eg common law. This is rare in Australia
cf UK as part of the EU.
For the second point, problems arise when statutes have a localizing element limits the application of the
statute to a particular area.
Since the statute will take priority over the common law when they lead to different outcomes, a statute may
effect the common law choice of law rules. Need to consider:

The statute law of the forum


o

To what extent does the forum, if its own choice of law rules refer to the law of the forum
give effect to its own statutes

Statute law of another jurisdiction


o

Where our choice of law rules refer us to a body of foreign dispositive rules, and the foreign
body of law has a statute with a localising element

The statute law of another State in the exercise of cross-vesting jurisdiction (not covered)

THE STATUTE LAW OF T HE FORUM


A forum court will be required to apply a statute of the forum in two situations:
1.

The statute itself indicates that it must be applied in a certain case (ie mandatory rules)

2.

If the forums choice of law rules (including through renvoi) identifies the law of the forum as the
law of the cause, and that body of dispositive law includes a statute

MANDATORY RULE
The statute simply requires that it be applied before any matter brought within the forum, irrespective of the
multi-state nature of the case, and therefore irrespective of the effect of the choice of law rules of the forum
(which might lead to the law of the cause being a foreign body of dispositive rules).

67

Private International Law

2010

GOLDEN ACRES LTD V QUEENSLAND ESTATES PTY LTD [1969] QD R 378

Facts
o

Queensland Auctioneers and Agents Act 1922 required agents for the sale of land (estate
agents) to be licensed by the state of Queensland

One party was trying to obtain the agents fees from the sale of land from another party

Contract for the establishment of an agency in Queensland included choice of law clause
which had the law of Hong Kong as the applicable law

This was actually in the contract which was at the core of the dispute

Estate agent argued the contract was governed by the law of the cause

Common law of Australia recognises express choice of law clauses

Common law process would lead us to apply the law of Hong Kong

Held
o

While the choice of law led to Hong Kong, this could not override a mandatory rule

Whether a statute is to apply as a mandatory rule depends on the terms of the statute itself. The problem is
that it is unusual for those drafting legislation to consider defining the intended territorial operation of the
statute explicitly. Those that include an express statement of territorial operation include:

Section 11(1) Carriage of Goods By Sea Act 1991 (Cth)

Section 67 Trade Practices Act 1974 (Cth)

Section 8 Insurance Contracts Act 1984 (Cth)

AKAI PTY LTD V PEOPLES INSURANCE CO LTD (1996) 188 CLR 418

Contract had express choice of law clause in favour of England

Statute mandatory so to overrule common law choice of law rule of applying the chosen law

Note: In that case, the mandatory rule will only be applied in the forum UNLESS a foreign court seized with the
matter, according to its own choice of law rules, finds the Queensland law as the law of the cause (which will
only occur if it does not apply the parties chosen law of the cause (Hong Kong)
NO LEGISLATED LOCALISING RULES
Statutes, however, seldom include explicit localising rules. A localising rule means the statute is designed to
only operate within the jurisdiction and is not outside the jurisdiction. When these situations occur, the court is
required to localize the statute that is, determine the territorial operation of the statute. This is no more than
the choice of law method determining the applicable law to the cause (and whether it includes a statute.)
BARCELO V ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LTD (1932) 48 CLR 391

Sykes J said that a statute should be applied to the maximum extent of the relevant parliaments
legislative power

Evatt J effectively suggested the same

68

Private International Law


o

2010

Thought that, so long as the forum statute was constitutionally valid, it should be applied to a
multi-state case before a forum court as though all material events and transactions had
occurred within the forum

NO EXPLICIT LOCALISING RULE IN STATUTE


MYNOTT V BANARD (1939) 62 CLR 68

HCA had to decide an action brought by the survivors of the deceased who were bringing an action
under the Victorian Act

Facts
o

Employee killed while working in NSW

Resident in Vic, employer was a Vic company, employment contract entered into in Vic and
governed by Vic law

Problem was at the time there was no choice of law rule the court could use

Not a tort, simply a statutory claim

Statute itself has no choice of law rules within it

Question for the HCA was can that Vic statute apply to death that occurred in NSW

Held
o

Nothing in the statute to indicate it should operate outside Vic

Assumed Vic Parliament didnt intend to operate outside Vic

Even though the forum might be Vic, Vic would not necessarily apply its statute to a death
that occurred outside its jurisdiction

Interpreting the intention of parliament to have within the statute a localising rule

Choice of law rule embedded in the statute was that workers compensation would be the
applicable law only when the death occurred in Victoria

Merely localising the statutes

LOCALISING BY CHOICE OF LAW RULES


Forum merely relies on the established choice of law rules, and if that means the application of the laws of the
forum, then the forum statute applies.

69

Private International Law

2010

BARCELO V ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LTD (1932) 48 CLR 391

Facts
o

Debentures issued by Electrolytic under a trust deed that stated it would be governed by the
law of Victoria

Holders of debentures lived in Melbourne and London

In 1931, 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 companys obligation to pay the full sum

Electrolytic sought a declaration in the VSC that, by paying a reduced sum of interest, it had
met its interest obligations to the debenture holders

Therefore, its case was that the Act applied to the debentures

Common law choice of law rule identified the law of Victoria as the law of the cause

Held
o

Full Court of the Supreme Court decided the Act did apply to debentures

In the HCA, Rich J held that the common law choice of law rule required the application of the
law of Victoria to the interest obligations, and this meant the Act applied in this particular
case

Dixon J held that for statutes like the 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

McTiernan J relied on English decisions that had construed statutes consistently with the
rules of private international law

Found nothing to exclude the debenture from its territorial operation

If a choice of law rule leads to foreign lex causae, then statute wont apply: Sykes v Cleary (choice of law rule
that foreign nationality to be determined by the law of the foreign state so Australian Citizenship Act 1948
(Cth) did not govern the loss of foreign nationality.
The better approach is not to read anything in unless you can impute that intention to Parliament should
assume that statutes can operate extra-territorially unless there is something about that statute that says it
shouldnt apply.
SYKES V CLEARY (1992) 176 CLR 77

Facts
o

Common law choice of law rules is that foreign nationality is determined by the foreign law

The Australian Citizenship Act had requirement that anyone obtaining Australian citizenship
take an oath swear allegiance to Australia and forgo allegiance to any other nationality

Argument that through the oath statute contained a mandatory rule that overrode the
common law rule

70

Private International Law

2010

Held
o

Held this was not the case didnt read any localising effect into this

Read it down in terms of infringing on the common law private international law rules

Eg only in Mynott when there is no exceptional choice of law rule that can be used,
run through the usual process

Important thing is the choice of law process may mean that you dont end up applying your
own statutes (eg Sykes)

Have to be quite clear that your own statute does not override the common law
rules

Have to be careful about the nature of the act you have within your jurisdiction

Have to be aware whether that Act contains within it a mandatory rule that
overrides the common law process

STATUTE LAW OF FOREIGN JURISDICTION


Statute law of foreign jurisdiction usually applies if the forums choice of law rules indicates that the foreign law
is to be the lex causae. What if the foreign statute contains its own localising rule?
SAYERS V INTERNATIONAL DRILLING CO LTD NV (1971) 3 ALL ER 163

Facts
o

English court had dispute between employee (English) and employer (Dutch)

Contract had exemption for liability in tort could only sue in contract

Exemption clause was invalid under both the law of England and the Dutch Civil Code

The English common law choice of law rules said the contract was governed by Dutch law

Dutch Civil Code has within it a localising effect

Civil Code is not supposed to be applied with any case where one of the parties is
not Dutch

Want to import foreign body of law to dispose of matter but cant because of localising
element

Held
o

71

When there is no alternative there is a problem

Private International Law

2010

Cant apply Dutch law because of localising effect and cant apply English law
because choice of law rule says to apply Dutch law

Substantive law is affecting

Dutch evidence was that if DCC did not apply the clause was valid (from cases in Netherlands)

Could exclude statute and apply alternative Dutch rule

This relies on there being an alternative that the foreign court has in itself
provided in the past

72

Private International Law

2010

CHOICE OF LAW METHOD (REVISION)


FIVE STEP PROCESS
1.

Identification of a conflict of laws

2.

Classification of the subject matter

3.

Classification of substantive or procedural law

4.

Identification of the choice of law rule

5.

Application of the law of the cause

First step is to identify that there are these jurisdictions that are important. The only way you can tell this is if
you have some knowledge of the choice of law rules you have to apply this is why the process is somewhat
circular.
Merely identifying those jurisdictions is one thing what we are really looking for is a conflict of laws those
jurisdictions provide different outcomes. When that occurs, we have a conflict of laws. In a sense if they all do
the same thing and apply the lex fori, you are ignoring your choice of law rules.
Once you have identified there is a conflict of laws or likely that there is a conflict of laws, the next step is to
classify the matter. Classification trying to narrow the issue down to the point where, associated with that
classification is a choice of law rule. Whether you have a rule that is at a sufficient degree of abstraction there
is a choice of law rule attached to that.
That classification process sometimes there are alternatives to that level of abstraction. Then have to narrow
the issue down to what is actually in dispute between the parties and that is what you classify and from that
classification you find the choice of law rule.
Once youve done that, there are other problems. Depecage is a contractual issue situation where having
classified the matter as contract you find that there are two different choice of law rules associated with the
different classifications but continue with both of those eg formal and essential validity of a marriage. The

73

Private International Law

2010

other alternative is that once you have classified a matter in resolving the dispute there are two classifications
that you have been unable to avoid simply fold the incidental question into the main question.
Then you have substance and procedure issues of procedure fall outside the choice of law rules.

At this stage you can eliminate some of the jurisdictions.


This leads you to a foreign body of law.
Once you have removed those statues with a localising effect, have identified the law of the cause. Now must
address the questions of the choice of law rules of other jurisdictions and whether need to consider the
problem that arises from conflict of conflict of law rules.
This isnt a step by step process.

74

Private International Law

2010

FOREIGN AND INTERSTATE JUDGMENTS


INTRODUCTION

It becomes a matter for Australian law as to whether Australia will recognise or enforce a foreign judgment
hope that a foreign entity will reciprocate the basis for our jurisdiction. This is the foundation upon which
recognition and enforcement is based.
RECOGNITION AND ENFO RCEMENT OF FOREIGN J UDGMENTS

While Australian courts may exercise exorbitant jurisdiction may be of no effect if the defendant has no
assets in Australia and judgment cannot be enforced in a foreign state in which the defendant does have
assets.
There is a close relationship between concepts. The basic principle underpinning recognition and enforcement
is the extent to which the foreign courts exercise of its jurisdiction mirrors the enforcement (Australian)
courts jurisdiction.
Therefore, at common law, a foreign courts judgment will be recognised in Australia if the foreign court
exercised jurisdiction based on:
1.

Presence in the jurisdiction

2.

Submission to the jurisdiction

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

75

Private International Law

2010

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 courts judgment.
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: Dow Jones & Company Inc v Gutnick.
There are two main ways of recognising and enforcing judgments:

Enforcement at common law

Enforcement under statute


o

Foreign judgments

Interstate judgments

RECOGNITION AND ENFO RCEMENT OF JUDGMENTS AT COMMON LAW

Enforcement of a judgment obtained in a court outside Australia requires that matter to be brought in Australia
as a new case. Australia views the judgment as an obligation one party is to pay the other party a sum of
money. If it is merely an obligation to pay and you are requiring that to be paid in Australia, all that the
Australian court is doing is entertaining an action to enforce an obligation. The foreign judgment is evidence of
that obligation.
However, the foreign judgment is not enforceable because of the foreign judgment strictly only enforceable
when adjudged to be enforceable by a court in the forum. This means that the court in the forum must have
jurisdiction over the judgment debtor at common law, under SEPA or by its rules of court.

76

Private International Law

2010

If the judgment debtor refuses to pay the obligation, have to come to Australia to initiate a new action.
Jurisdiction will have to be found either by common law or statute.
For the forum to enforce a foreign judgment at common law, must satisfy the following conditions:

Foreign court has international jurisdiction


o

Look at the mechanism by which the foreign court has exercised jurisdiction in deciding the
matter in the first place

Know that the foreign court has exercised jurisdiction according to its laws, so dont look to
its laws

Look to our law to see if it is exercising jurisdiction in a way that mirrors ours

Final judgment

Fixed sum

Identical parties

The Australian court will apply Australian law to determine whether in fact it will enforce that obligation.
INTERNATIONAL JURISDICTION
International jurisdiction means the competence that the law of the forum recognises that at court in a foreign
country can exercise if its judgment is to be recognised or enforced in the forum. International jurisdiction is
assessed by the laws of the forum. It is assumed the foreign court had jurisdiction under its rules. At common
law, therefore mirrors (to a large extent) common law jurisdiction of forum. Other (wider possibilities have
arisen.)
At common law, this mirrors common law jurisdiction of forum, that is:

Presence within territory of foreign court


o

At time initiating process served on defendant including corporation

Under our jurisdictional regime, we readily recognise presence within the jurisdiction thus
we will recognise if a foreign court exercises jurisdiction on the same basis

Submission
o

Either express or by conduct inconsistent with a protest against jurisdiction

Defendant can say that they never submitted to the jurisdiction of the other court

PRESENCE
Where the defendant/judgment debtor is a natural person, the international jurisdiction of the foreign court
will be recognised when the debtor was served in the foreign place with the initiating process for the
proceeding that led to the making of the foreign judgment.
SUBMISSION
There are two particular means by which submission to the jurisdiction of the foreign court might be shown:
1.

Express agreement
77

Private International Law


2.

2010

Conduct inconsistent with a protest against the jurisdiction of the foreign court

This is a less than perfect mirror of jurisdiction.


Note: if the parties agree to a choice of forum clause and judgment is entered against the debtor in that place,
at common law, the foreign court will be regarded as having exercised property international jurisdiction even
if B refused to actually appear before the foreign court. A choice of law clause is insufficient to establish
international jurisdiction.
HARRIS V TAYLOR [1915] 2 KB 580

Considered the question of a challenge to jurisdiction

Facts
o

D challenged courts jurisdiction, but the court rejected the challenge

D didnt accept the rejection and didnt come to court

Court ruled summarily against the defendant and P sought to have the judgment enforced in
England

Held
o

English court enforced the judgment

Even though D had challenged jurisdiction and lost and had not appeared, that amounted to
submission to jurisdiction

HENRY V GEOPROSCO INTERNATIONAL LTD [1976] 1 QB 726

Extended Harris v Taylor

Facts
o

D went to foreign court and said they werent the appropriate court raised forum non
conveniens

They lost that challenge and ruled against the D

Went to the English jurisdiction and tried to have that judgment enforced

English court had to consider whether that jurisdiction was appropriately exercised

Held
o

When D raised forum non conveniens, they recognised te competence of that foreign court
but requested it to not exercise that jurisdiction it clearly had

English court enforced the judgment

Section 11 of the Foreign Judgments Act 1991 (Cth) ensures that neither approach is followed in Australia. 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 jurisdiction. NB applies to common law enforcement action.

78

Private International Law

2010

In rem proceeding

Ground for jurisdiction and follows choice of law rule that law regarding title to or possession of
immovable property is determined by the lex situs

Probably only for immovable property and chattels

Domicile or residence

Possibly can be international jurisdiction in Australia if old English precedents are followed

Where the judgment debtor 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: Marshall v Houghton
o

Also held this applied for defendant who was domiciled in foreign place

Nationality

Precedent in the UK suggests nationality should not be used: Sirdar Gurdyal Singh v Rajah of
Faridkote[1894] AC 670

However, Federal Finance & Mortgage Ltd v Winternitz (Unreported NSW 1989) says otherwise

Raises question as to whether we should accept jurisdiction in a foreign court that is exercised on a
conceptually similar basis to what we would exercise jurisdiction, but not the same basis.

Real and substantial connection

Canadian courts 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

Morguard Investments Ltd v De Savoye [1990] 3 SCR 1077 related to a matter internal to Canada
involving two provinces
o

A Canadian provincial court should recognise the judgment of another provinces courts
where the jurisdiction that the rendering provinces 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

The proposition was extended in Beals v Saldanha[2003] 3 SCR 416 to foreign jurisdiction

Unlikely this will be followed in Australia adds nothing to interstate judgments (SEPA) and the
ground is so flexibly defined as to give little guidance as to when foreign judgments made where there
was some connection with the place where it was rendered will not be recognised

Reciprocal jurisdiction

While reciprocity underpins recognition of foreign judgment, it is not applied in sense wider than
common law
o
79

Except by way of statute in relation of recognition of marriages, annulments and divorces

Private International Law

2010

While a foreign court may exercise a wide jurisdiction under its statute to allow for service on
defendant outside the jurisdiction of that court, and that basis is the same (mirrors) that of the
Australian court in which enforcement is requested, this is insufficient to found international
jurisdiction: Crick v Hennesy [1973] WAR 74

Therefore, just because some other court has exercised some similar jurisdiction does not mean that
we will accept that jurisdiction
o

Australia tends to mirror the common law ie presence, submission may mirror domicile but
this is where the issue stops

Australia doesnt mirror anything else at common law

There are exceptions relating to marriage, divorce, annulment of marriage etc

FINAL JUDGMENT
Judgment must be final and conclusive res judicata (ie cannot be re-litigated in the same court by the same
parties) but it may be subject to appeal, and can include a default judgment. If there is an appeal, can stay the
enforcement of the original action. Except if it can be set aside by appearance.
NOUVION V FREEMAN (1889) 15 APP CAS 10

Spanish summary judgment not final as defendant could bring plenary proceedings within certain time

Until that time had expired, there was always time to relitigate the matter

English court said they would not enforce until such time as the expiry date had come and gone

FIXED SUM
The theory of obligation assumes that the foreign judgment will represent an obligation on the part of the
defendant/judgment debtor to pay a sum of money to the plaintiff/judgment creditor. At common law,
enforcement is only for a fixed sum if the sum cant be calculated it is not capable of enforcement. This
includes an order in specie such as specific performance or an injunction. However, some other orders may be
recognised:
WHITE V VERKOUILLE [1989] 2 QD R 191

Required that Qld court appoint a receiver subject to probate etc

Order to appoint a receiver was a foreign order but Qld court willing to enforce that order here

At common law can get something other than damages enforced, but they are limited

IDENTICAL PARTIES
The plaintiff seeking to enforce a judgment in Australia must be the same plaintiff that sought the judgment in
the first place. The defendant must be the same defendant who was in the foreign court.
BLOHN V DESSER [1962] 2 QB 116

Austrian judgment and Austrian D was partnership

Partners not liable for debts of partnership under Austrian law


80

Private International Law

P succeeded in Austria and wanted to enforce against 1 partner with property in England

English court said there was a difference in defendants


o

2010

Here the defendant was one partner and in Austria was a partnership

DEFENCES AT COMMON L AW

Foreign judgment obtained by fraud

Debtor denied natural justice

Enforcement would amount to enforcement of foreign penal law, revenue law or other
governmental interest

Recognition or enforcement would be contrary to forums public policy

FOREIGN JUDGMENT OBTAINED BY FRAUD


The original judgment must be obtained by fraud, however, a question arises as to whether this is extrinsic or
intrinsic fraud. Intrinsic fraud is evident during the litigation eg the fraudulent issues are raised at court.
Extrinsic evidence comes to light after the litigation.
A court ought to accept that a judgment is a legitimate judgment, and should only question if matters come to
light after that judgment eg perjury or falsification of documents or something not known to the courts that
made that decision. Otherwise, it may amount to re-litigation if intrinsic fraud is considered.
AHMED V HABIB BANK [2001] EWCA CIV 1270

Foreign judgment lacked reasoning and documents suggested fraud

Facts
o

When it came time to enforce, the judgment obtained in Pakistan, considered the fraud
raised by the defendant

D brought evidence during the trial that the matter was tainted by fraud but the trial judge in
Pakistan didnt find a fraud to exist

D managed to give evidence in England to say that the documents they had suggested there
was a fraud and any reasonable court with those documents would have found a fraud

Held
o

English court in a sense re-litigated issues

Could not see how a Pakistani judge couldnt see a fraud

Refused to enforce the judgment

Reconsidering evidence and saying how a Pakistani judge should have decided it according to
English standards

Undermining one of the key principles that is required for enforcing judgments final and
conclusive the foreign judgment was not res judicata on the question of fraud

Consequences of this decision


o

81

Incompatible with concepts of res judicata

Private International Law


o

Encourages saving for a second attempt

2010

Defendant may not participate completely in the foreign proceedings

See Yoon v Song (2000) 158 FLR 295

ISRAEL DISCOUNT BANK V HADJIPATREAS [1983] 3 ALL ER 129

Court said that if matter could have been raised in the foreign court, was not raised in the foreign
court but raised now (kind of intrinsic fraud) strategically as a defence, will not accept that fraud as a
fraud that is used to defend the enforcement action

At least accepted some limitations

See also Owens Bank Ltd v Bracco [1992] 2 AC 443

HOUSE OF SPRING GARDENS LTD V WAITE [1991] 1 QB 241

Original judgment made in Ireland, but 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

English (and NZ) approach is to allow for cases other than extrinsic fraud. The Canadian approach is limited to
extrinsic fraud. The Australian approach refers includes the following cases:
NORMAN V NORMAN (NO 2) (1968) 12 FLR 39

Initially federal court took English approach

Can take into account fraud that is raised during that case as part of the defence to the enforcement

KEELE V FINDLEY (1990) 21 NSWLR 445

NSW court ruled that only extrinsic evidence ought to be taken into account

YOON V SONG (2000) 158 FLR 295

FCA came back to Norman and said there are cases in which intrinsic fraud can be taken into account
as a defence

Therefore, in Australia it appears to be the case that intrinsic fraud can be used as a basis to defend an
enforcement action.
DEBTOR DENIED NATURAL JUSTICE
The requirements of natural justice are:

Due notice of proceedings (forum clauses and foreign law?) and

Both parties given fair opportunity to present their case

82

Private International Law

2010

If parties are not given appropriate opportunities to prepare/participate and the judgment was rendered under
those circumstances, D can use that.
PUBLIC POLICY, PENAL AND REVENUE LAWS
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. 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.
INCOMPATIBLE JUDGMENTS
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. When
someone comes to enforce a judgment in Australia, D says they have received judgment somewhere else in
their favour.
SHOWLAG V MANSOUR [1995] 1 AC 431

Facts
o

S went to a court in England and succeeded against M

M went to a court in Egypt and succeeded against S

S tried to enforce the English judgment in Jersey

M tried to use the Egyptian judgment as a defence to the enforcement of the English
judgment

Held
o

Court looked at both judgments and said both are enforceable

Both exercised international jurisdiction etc

The first in time prevails whoever got the judgment first prevails

A subsequent incompatible judgment cannot be used as a defence where both the


parties are the same

Lord Keith of Kinkel held 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

First in time to enforce the judgment prevails

ENFORCEMENT BY STATU TE
INTERNATIONAL JUDGMENTS
A blanket acceptance of the competencies of a foreign court and for the registration of that court in the forum,
allowing enforcement (subject to defences similar to those at common law.) The Foreign Judgments (Reciprocal
Enforcement) Act 1933 (UK) was replicated in all States of Australia, and common with the Commonwealth
including Canada and NZ. Therefore, the defendant doesnt have to be in the jurisdiction. This statutory
83

Private International Law

2010

encoding of the common law that parallels the common law to some extent but with a small amount of
variation.
FOREIGN JUDGMENTS ACT 1991 (CTH)
This Act replaced all existing state and Cth legislation and thus applies to all states and territories. It list
jurisdiction with which there is a reciprocal agreement. For superior courts:

Canada

France

Germany

Italy

Japan

Korea

New Zealand

Poland

Singapore

Switzerland

China

UK

For inferior courts, there is a smaller list:

Some Canadian provinces

New Zealand

UK

Poland

Switzerland

Where the Act applies, cannot enforce at common law.


Judgment is defined as a final and interlocutory judgment or order given or made by a court on civil
proceedings: s 3(1). It also allows for the registration of:

Criminal judgments which award compensation to victim

Arbitral awards

Allows for proclamations allowing specific performance and injunctions (none yet made)

Therefore, judgment doesnt have to be for a fixed sum of money, a much wider range of actions can be
enforced than at common law.
REGISTRATION
Registration much occur within 6 years of judgment (or appeal) provided that:

84

Private International Law

It is a judgment to which the Act applies

Not wholly satisfied

Enforceable in the place where it was made

2010

NB: no need for court to have jurisdiction over judgment debtor. See Hunt v BP Exploration Co (Libya) Ltd
(1979) 144 CLR 565. At common law you do have to have jurisdiction over the judgment debtor at common law
or statute.
HUNT V BP EXPLORATION CO (LIBYA) LTD (1979) 144 CLR 565

Facts
o

BP took action against H in UK, also had assets in Qld

BP wanted to enforce the judgment in Qld because he had assets here

H challenged because he wasnt in Qld and had no connection other than having property
there

Held
o

No need for the Supreme Court to have personal jurisdiction over the judgment debtor for
the judgment to be registered

At common law, saying this is an action in personam

Action to enforce an obligation that already exists

This is not the case at all this is merely registration under a reciprocal arrangement
which allows us to enforce a judgment against a particular person

Illustrates doesnt require jurisdiction

But must comply to similar standards required of the common law

At common law a judgment creditor who sought to enforce a foreign judgment who sought
to enforce a 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 the
court

The Act dispensed with this requirement, since the application for registration does not
involve an action in personam requiring service of the Supreme Courts process in or outside
the jurisdiction

Because there is a reciprocal arrangement scheme, it almost stands to reason that judgments will be
recognised. On registration, it is naturalised ie has the same force and effect as judgment of a court and
deemed to be made on date of registration. Judgment registered in a States Supreme Court can then be
registered in any other States Supreme Court by way of Service and Execution of Process Act 1992 (Cth).
Registration can be stayed until foreign appeal concluded. Most of the courts require notice to be given to the
judgment debtor.
SETTING ASIDE REGISTRATION
Judgment debtor can resist and make judgment unenforceable by having the registration set aside. The debtor
can apply to the Supreme Court in which the foreign judgment was registered to have the registration set
85

Private International Law

2010

aside. If a judgment was made in a foreign country and merely registered in Victoria, the debtor can invoke the
procedures of the Foreign Judgments Act in SA to have registration of the judgment set aside there.
1.

If judgment is one to which the Foreign Judgments Act does not apply

2.

If the judgment registered was for a sum greater than the amount payable at the time of
registration

3.

Obtained in breach of Act

4.

S 7 Foreign Judgments Act if condition for registration were not met and grounds which mirror to
large extent common law
o

Sets out a number of defences available and a number of bases on which you can have a
judgment set aside

While it mirrors the common law, the Act itself sets out different rules as to international
jurisdiction depending on whether the action is

In personam

In rem

Relating to immovable property

Unclassified

However, in any of these cases, international jurisdiction not recognised if

Foreign proceedings related to immovable property was not located in the foreign place

Brought in breach of exclusive choice of forum clause

Judgment debtor entitled to immunity in public international law and did not submit to courts
jurisdiction

SECTION 7 FOREIGN JUDGMENTS ACT


1.

Set aside if foreign court not exercising a recognised international jurisdiction

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

If the proceedings were brought in the foreign court in breach of an exclusive jurisdiction clause (and
the defendant had not otherwise submitted to its jurisdiction)

If the debtor 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 the debtor did not submit to jurisdiction

Proceedings in personam
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 was a natural person who was
resident in the relevant foreign place. This may mean that the debtor was merely present in the foreign place
at the time proceedings were commenced.

86

Private International Law

2010

It is also sufficient that the proceedings relate to a transaction that the debtor effected through an office or
place of business that the debtor had in the foreign place. Further, the international jurisdiction of the foreign
court is established if the debtor voluntarily submitted to its jurisdiction. It expressly excludes submission by
agreement/conduct.
(most instances except most matrimonial causes) where judgment debtor resident in foreign jurisdiction =
presence, conduct of business through agent etc, submission, exclusive jurisdiction clause, raising of
substantive issues etc.
DE SANTIS V RUSSO [2002] 2 QD R 230

Facts
o

R took action against D in supreme court in Rome and managed to obtain judgment against D

D actually attempted to engage in the litigation in Rome but didnt manage to get it right

Whatever approach they made the court rejected that approach

D failed to become engaged in the matter

Finally court entered summary judgment in Australia

R comes to Australia and tries to get judgment enforced

Held
o

Court looked at Ds attempts, so Australian court said that D did not submit to the jurisdiction
of the court

If D had not succeeded in submitting to the jurisdiction of the court, then D had not
submitted to the jurisdiction of the court therefore the court did not have jurisdiction over D
and refused to enforce judgment

This is part of the defence to the registration of the judgment under the registration

Registration was set aside on the basis that there was no in personam jurisdiction of the
Roman court

Some of the concepts that exist under common law still apply under statute

Precedent for the way in which registration set aside

Overriding consideration 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 submission
o

On that ground, she could not be considered to have participated in the foreign proceedings,
and registration was set aside

See section 7(5) of the Foreign Judgments Act submission does not include:

Contesting the jurisdiction of the court

Inviting the court in its discretion not to exercise its jurisdiction in the proceedings
o

S 11 and relation to common law

Proceedings in rem

87

Private International Law

2010

Property, often maritime property (ships). International jurisdiction established if immovable property within
jurisdiction of foreign court. 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
place at the time of the proceedings.
Unclassified proceedings
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.
2.

If not identical parties

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.
3.

If judgment obtained by fraud

The registration of a foreign judgment must be set aside if that judgment was obtained by fraud. This probably
parallels the defence of fraud available at common law.
4.

If no natural justice

B had insufficient or no notice AND did not participate in the proceedings: Barclays Bank Ltd v Piacun [1984] 2
Qd R 746
5.

If contrary to public policy (of Australia)

The registration of a foreign judgment must be set aside if enforcement of the judgment would be contrary to
public policy.
6.

If incompatible judgment
o

Being a judgment obtained in foreign court AFTER a final and conclusive judgment made
elsewhere in a court having international jurisdiction

Perhaps the most important thing about the Act is that the judgment debtor does not need to be within the
jurisdiction of the court, the rest follows the common law to some extent.
INTERSTATE JUDGMENTS
Sections 104 6 and 109 Service and Execution of Process Act 1992 (Cth).

88

Private International Law

2010

MARRIAGE
INTRODUCTION
Marriage is largely a federal concern Marriage Act 1961 (Cth) and Family Law Act 1975 (Cth). There is no
conflict of law issues within Australia because choice of law and recognition rules are all derived from Australia
really foreign marriage/foreign divorce.
The Hague Convention on Celebration and Recognition of the Validity of Marriages 1978 sought to create a
mechanism by which marriages entered into anywhere in the world would be widely recognised, and did so by
making the choice of law rule lex loci celebrationis.

The Act sits on top of the existing common law the changes were brought into effect on 7 April 1986.

For marriages entered into in Australia prior to this date, they are still governed by the common law to
some extent

For marriages which post-date this, only the Act applies no common law

For marriages that are foreign to Australia the common law and Act apply as an alternative

MARRIAGE
Australian marriage is one solemnised in Australia according to Australian law (Marriage Act 1961 (Cth) (or
solemnised by Australian foreign diplomatic officers in Australia or overseas).
Foreign marriage is one solemnised in a foreign country under a foreign system of law. Foreign marriages are
one fo the concerns of Private International Law, and are governed largely by Part V Marriage Act 1961 (Cth),
addressing:

Whether a foreign marriage is valid

The extent of recognition of marriages or unions within the nature of marriage

MARRIAGE ACT 1961 (C TH)


Common law applies only to the extent that the Marriage Act 1961 (Cth) preserves and permits its application.
Otherwise the Marriage Act governs marriage it only really changes the essential validity requirements. The
Act provides:

Marriageable age is 18 (16-18 possible with parental and judicial consent)


89

Private International Law

Prohibited relationship descent, siblings (including half and adopted siblings)


o

2010

No affinity prohibitions

Reality of consent

MARRIAGE VALIDITY
Primary issue where

Declaration of validity

Annulment

An incidental question when

Dissolution

Revocation of will by marriage

Inheritance of spouse or child

Legitimacy of child

Taxation relief of spouse

COMMON LAW AND MARRIAGE ACT


THE NATURE OF MARRIA GE
HYDE V HYDE AND WOODMANSEE (1866) LR 1 P & D 130 AT 133

Husband brought proceedings in England for the dissolution of a marriage conducted in Utah in
accordance with Mormon rites
o

Marriage had been entered at a time when Mormonism endorsed and practised polygamy

Having renounced his Mormonism, the husband returned to England

Wife then remarried a second time again, in Utah, in accordance with Mormon rights so
the husband alleged that a dissolution could be granted on the ground of her adultery

Decree was refused

Marriage was only potentially polygamous, therefore refused any remedy that could otherwise be
granted by an English court

Lord Penzances definition of a Christian marriage


o

The voluntary union for life of one man and one woman to the exclusion of all others

Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life:
Marriage Amendment Act 2004 (Cth) ss 5, 46(1) Marriage Act 1961 (Cth).

90

Private International Law

2010

VOLUNTARY UNION
The marriage relationship is one entered only with the voluntary consent of the man and woman involved. 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.
Consent cannot be given if:

Duress

Fraud

Mental capacity

Mistake as to effect of ceremony

So long as they are also of marriageable age, it is only the parties consent to the marriage that is relevant.
INDEFINITE DURATION
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.
Whenever (irrespective of the grounds) the law recognises that a marriage can be dissolved a mensa et thoro, it
must assume that a marriage might not subsist until the parties are separated by death.
Monogamous
o

Though aspect of polygamous marriages are recognised

Suggested by to the exclusion of all others

MONOGAMOUS
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. Need to distinguish between monogamous
and polygamous marriage (and potentially polygamous marriage.)
A potentially polygamous marriage is where there is only 1 spouse, but there is the potential to take another.
The time for determining the nature of the union is the time when the proceedings that give rise to the need to
determine the question are commenced:

A potentially polygamous marriage, which has become an actually polygamous marriage, may be valid
o

Eg if wife doesnt give birth within 2 years, entitled to take another wife if she does it
becomes monogamous

Also possible that parties may unintentionally changed the union from potentially
polygamous to monogamous by acquiring domiciles in a place, like Australia, which
under its internal law does not allow polygamy

If it is potentially polygamous it is always voidable it needs to become actually


monogamous

91

Private International Law

2010

Defect is cured by change to a monogamous marriage

But an actually polygamous marriage, even if it becomes actually monogamous, will never be valid
o

If you had 2 wives and now have 1, still have an actually polygamous marriage

Not regarded as married

Absolutely void will not be recognised

The fact the union has been polygamous means will not be regarded as
union

There has to be a marriage before start looking if it is a valid marriage

Invalid or void at the outset and cannot be altered by any subsequent event, except the
separate solemnization of a valid monogamous marriage

CLASSIFICATION
Classification is then important potentially polygamous or actually monogamous. There is no clear authority
on classification in terms of marriage. It may be:

Lex domicili

Lex loci celebrationis

Lex fora: Lee v Lau

In common law, have two aspects to marriage which require choice of law rules essential and formal validity.

92

Private International Law

2010

In the example above, if applied lex domicili, would have to recognise polygamous marriage and this cannot be
the case.
LEE V LAU [1967] P14

Marriage in Hong Kong could only have 1 wife but could have a number of concubines

Classification in Hong Kong would be monogamous because it makes a distinction between


concubines and wives
o

Nature is that wife not in relationship to the exclusion of all others

If classify according to lex loci celebrationis, valid and domicile would be valid

Held
o

Contrary to what would happen in forum so have to apply law of the forum

Classification has to be according to the law of the forum forum courts decide whether
marriage is valid or not

It could not be considered a valid marriage, as the husband could take additional partners
who possessed some legal status

Could not be said to be to the exclusion of all others

Avoids the problem of importing fine distinctions that foreign laws might make between
monogamous and polygamous marriages

When it is an incidental question to something else, Australia will recognise that. If dont recognise marriage
but the nature of the union it would have a detrimental effect on those children.
HETEROSEXUAL

93

Private International Law

2010

CORBETT V CORBETT [1971] BELLINGER V BELLINGER (2002)

Bride born male

Marriage when woman who had undergone sex change operation (born male)

Neither of these marriages were declared valid marriages

C AND D (1979)

Annulled for pre-operative intersex person who underwent corrective surgery after marriage, on the
basis of mistake as to spouses sex

Marriage entered into when one of the parties after the wedding went through an operation to
correct the one sex

Court annulled marriage not on the basis of the sex, but on the basis that the other party was not
aware of that

RE WAKIM; EX PARTE MCNALLY (1999) 198 CLR 511 AT 553

McHugh j suggested that marriage now means, or in the near future may mean, a voluntary union
between two people to the exclusion of others

ATTORNEY GENERAL V KEVIN (2003) 30 FAM L R 1

Distinguished above if marriage was post-operative gender reassignment

Recognized the fact that one party physically might not have reflected their actual sex

Operation merely corrected this

Persons were of the opposite sex and could be married

An apparently heterosexual union involving a post-operative transsexual or an intersex person will be


recognised as a marriage in Australia, even if it is not recognised as such in some other place

Held also that c and d had been wrongly decided

S 88EA Marriage Act 1961 (Cth) (Marriage Amendment Act 2004 (Cth) a union solemnised in a foreign country
between:

A man and another man; or

A woman and another woman

Must not be recognised as a marriage in australia.


94

Private International Law

2010

May recognise that marriage under state law for another purpose. Under the Australian construct of marriage
dont recognise it as that legal relationship. If the union you are looking at falls within this definition, can ask if
it is recognised.
HOMOSEXUAL RELATIONSHIPS AND CIVIL UNIONS
Section 51(xxxi) of the Constitution provides that the Parliament shall have power to make laws in respect of
marriage. The Federal government can only legislate with respect to marriages between a man and a woman,
as legislation between two men or women doesnt fall within pl (xxi) they arent marriages.
States and Territories, for the purposes of their laws, may recognise other relationships eg significant
relationship monogamous homosexual relationship ss 4, 7, 11 Relationships Act 2003 (Tas). See also Civil
Unions Act 2004 (NZ); r 3 Civil Unions (Recognised Overseas Relationships) Regulations 2005 (NZ).
THE COMMON LAW CHOICE OF LAW RULES
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:

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
o

Marriage Act provides some exceptions that, as mandatory rules, override the effect of the
common law rules

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
o

If the marriage is not valid according to Pt VA but it would be recognised as valid under the
common law rules of PIL, the marriage will still be recognised as valid in Australia

Common law rules can save validity of marriage solemnised overseas

There are still exceptions which override the common law rules

Choice of law rules:

Lex loci celebrationis

Two choice of law rules


o

One for formal validity

One for essential validity

BROOK V BROOK (1861) 9 HLC 193 AT 207 8; 11 ER 704 AT 709

Per Lord Campbell LC


o

There can be no doubt of the general rule, that a foreign marriage, valid according to the law
of a country where it is celebrated is good everywhere. But while the forms of entering into
the contract of marriage are to be regulated by the lex loci contractus, the law of the country

95

Private International Law

2010

in which the parties are domiciled at the time of marriage, and in which the matrimonial
residence is contemplated

Formal validity
o

Whether religious or civil

Qualifications of celebrant

Need for witnesses

Requirements of notice and registration

Need for parental consent questionable

Essential validity
o

Age qualification

Relationship by common descent or affinity qualification

Pre-existing marital status

These common law choice of law rules still apply, but only for marriages entered before 7 April 1986 or
potentially foreign marriages.
FORMAL VALIDITY
Formal validity the general rule is that the law of the cause for any issue relating to formal validity is
governed by the law of the place of solemnisation (lex loci celebrationis):

Held that whether a marriage is validly solemnised when one of the parties appears only by proxy is a
question of formal validity: Apt v Apt

For a marriage to be valid must be formally and essentially valid.


If essentially valid, but formally invalid, then marriage is invalid. This is an exception to the requirement that
you have to have formal validity.
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 in the place where it was solemnised,
it will be invalid, even if the marriage is essentially valid.

96

Private International Law

2010

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. It will not be invalid if it met the requirements and
then the law subsequently changed so as to invalidate the marriage. However, if a law change subsequently
validates a marriage, this works in favour of the validity of the marriage.
EXCEPTIONS THE COMMON LAW OR CANON LAW MARRIAGE
Potentially two requirements for recognition of a marriage at common law:

Declaration de presenti a serious and genuine exchange of consent by the man and the woman to a
present marriage

Solemnisation by a priest

Common law marriage requires nothing more than a serious and genuine exchange of consent by the man and
the woman present at the marriage and Mills limited to marriages in England and Ireland: Catterall v Catterall
(1857) 1 Rob Ecc 580; 163 ER 1142. Regarding requirement of episcopally-ordained priest (a priest ordained by
a bishop): R v Millis (1844).
Where marriage not valid at lex loci celebrationis, but satisfies common law marriage in Australia, will be
recognised when:

Impossible to satisfy formal requirements: Savenis v Savenis [1950] SASR 309 cf Marriage of X (1983)
65 FLR 132

Serving in armed forces occupying lex loci celebrationis


o

Reason offered for the rule is that the parties did not voluntarily submit to the internal law of
the occupied place

Probably just unreasonable to expect occupying troops to be subject to the law of the place
in which they are in belligerent occupation

Conscientious objection usually to religious ceremony required


o

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

Where the two parties have the capacity to enter into marriage, but in a jurisdiction where it is impossible for
them to get married under the formal laws of that jurisdiction eg requirement that need to be certain religion.
The concept is still used where party cant satisfy formal validity if satisfies common law marriage, may then
recognise formal validity.
SAVENIS V SAVENIS [1950] SASR 309

Facts
o

Couple wanted to marry in Germany at the end of WWII where the law required them to get
married in a certain format

Format couldnt be complied with because the registry destroyed etc absolutely impossible
because of destruction in war

97

Private International Law


o

2010

Agreed to get married

Held
o

Court recognised that union as a valid union even though there was no formal validity

Court fairly strict in doing this

MARRIAGE OF X (1983) 65 FLR 132

Facts
o

Couple wanted to marry in Vietnam during the war

Could have gone and got married but feared being involved with the government of the day
and didnt do that

Held
o

The court did not recognise this as a substitute for formal validity

Still have to satisfy that requirement

Has to be impossible to satisfy formal validity before recognise at common law

These are the only times can have no formal validity but can recognise the marriage as valid.
ESSENTIAL VALIDITY
The issues which are classified as questions of essential validity are all those which relate to a persons legal
capacity to marry. Two issues remain in doubt:

Reality of consent whether the marriage is void on the grounds of duress, fraud, mistake or mental
incapacity

Physical impediments which, in some places outside Australia, might render a marriage void or
voidable

BROOK V BROOK (1861) LORD CAMPBELL LC

Facts
o

English widower and his sister-in-law married while travelling in Holstein (which the House of
Lords thought was in Denmark)

The parties had the capacity to marry under the law of Denmark, but not under the law of
England, where the marriage offended rules of affinity

Held
o

Lord Campbell LC

The essentials of the contract depend upon the lex domicili, 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

98

Comment suggests two choice of law rules

Private International Law

2010

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 marriage (dual domicile rule)

Law of the places where the parties intend to establish the matrimonial home
(matrimonial home rule)

Dual domicile rule generally followed in Australia that is, where each party is domiciled at the time of the
marriage (including the lex domicilis choice of law rules renvoi.) That is, when applying domicile of one of the
parties, it is quite possible that apply the partys choice of law rules as well renvoi may come into this
theoretically however, unlikely that will have a conflict of conflict of laws.
Essential validity requires us to apply the dual domicile rule. Debate as to residence (matrimonial home) as
whether that is a second choice of law requirement (mainly in UK) only require dual domicile in Australia.
Physical/pre-existing impediments

Eg husbands impotence or wifes pregnancy

More easily classified as essential validity to be determined then by that persons lex domicile

Wilful refusal is more difficult to classify. It relates more directly to what the law regards as a persons marital
responsibility than it does to capacity therefore arguable that question of essential validity suggestions
include:

Law of the forum


o

Similar to dissolutions

Lex domicili of the petitioner ie person willing

Whichever gives relief to the person aggrieved


o

If either law gives basis to invalidate marriage and party not refusing to consummate
marriage, can rely on either of the jurisdictional laws to invalidate the marriage

In Australia, a marriage can only be declared invalid if it is void. 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, decree
of annulment may be recognised in Australia under rules for recognition of foreign decrees in neither case
does a choice of law rule arise.
Only if foreign place, wilful refusal retrospectively renders the 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
petitioners domicile.
EXCEPTIONS
Essential validity the exceptions the rule in Sottomayer v De Barros.
SOTTOMAYER V DE BARROS (NO 2) (1978) LR 5 PD 94

Facts
o
99

Two first cousins wanted to get married

Private International Law

2010

He was domiciled in England, she was domiciled in Portgual

English law doesnt prevent cousins getting married, but under Portuguese law could only
marry first cousin if received Papal dispensation

She didnt do this and got married

Held
o

When considered validity in England she didnt have essential validity

If the only thing that is missing from her essential validity is the fact she did not get consent,
will override this problem

Exception is if

The marriage is celebrated in Australia;

One party is domiciled in Australia

The other party is not domiciled in Australia and

Does not have capacity to marry under the law of the place of domicile but

Would have capacity to marry if domiciled in Australia

And the incapacity relates to consanguinity and can be overcome by Papal


dispensation, that was not obtained

MILLER V TEALE (1954) 92 CLR 406

HCA reluctantly accepted the role in Sottomayer v De Barros (No 2) was law in Australia, but only
applied in cases where such an incapacity can be removed by a special consent or dispensation (see
above)

Still has to be determined in Australia whether a restraint attached to a decree recognised in Australia
on one of these grounds would also be recognised
o

HCA 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

THE PRESENT CHOICE OF LAW RULES


MARRIAGES CELEBRATED IN AUSTRALIA BEFORE 7 APRIL 1986
Largely governed by common law and aspects of Marriage Act 1961 (Cth) that modify common law eg common
law (canon) marriages solemnised in Australia are not recognised. Therefore need to distinguish between
formal and essential validity. Legislation inserts essential requirements into this union.
Section 23(1)(c) of the 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 Act.

100

Private International Law

2010

ESSENTIAL VALIDITY
Generally lex domicili, except:

Marriage Act s 10(1)(b) person must be of age both in domicile and Australia for essential validity

Where lex domicile would not recognise a divorce, the capacity to marry might be determined by the
lex domicile at the time of the subsequent marriage rather than initial marriage: Schwebel v Unger

Essential validity is determined by the lex domicili at the time of the marriage. If at that particular point in time,
a divorce which was obtained earlier but the persons new domicile recognises that divorce, will apply that new
domicile.
MARRIAGES CELEBRATED IN AUSTRALIA AFTER 7 APRIL 1986
A marriage entered into in Australia is governed entirely by the lex loci celebrationis after 1986. Validity of
marriage solemnised in Australia to be determined by the Law of Australia, and common law expressly
excluded: ss 23A Marriage Act 1961 (Cth).
Doesnt matter what your domicile is, will recognise that marriage as valid. No longer requires you to consider
the essential validity of the marriage in accordance with the domicile of the parties. Will consider it valid
marriage if foreign parties marry in Australia even if the lex domicili doesnt consider it to be valid. If signatory
to the convention, that country must regard it as valid as it is marriage according to the lex celebrationis.
Part III Div 2 only allows a marriage to be declared invalid if:

At the time of the marriage, one party is already lawfully married to someone else

The parties are within the prohibited relationship

The marriage does not comply with the Acts requirements as to form

There was no reality of consent

One party was not of marriageable age

MARRIAGES CELEBRATED OVERSEAS


Overall policy is to favour validity of marriages that are valid overseas. Structure of Pt V supports this general
aim. Pt VA applies to any marriage solemnised in a place outside Australia and at any time therefore has
both prospective and retrospective application.
Marriage Act 1961 (Cth) ss 11, 23A, Part VA

The Acts introduction of lex loci celebrationis means that for marriages entered into outside Australia
o

Will be valid if recognised as valid by either

The lex loci celebrationis OR

The common law rules of private international law

Legislation encourages the recognition of marriages. If our legislation doesnt allow your marriage to be
recognised, allows you to have recourse to the common law.

101

Private International Law

2010

PART VA MARRIAGE ACT 1961 (CTH)


Section 88A implements Hague Convention (Chapter II). Adopts primacy of lex loci celebrationis s 88C.
Intention is to make the validity of the marriage entirely dependent on the lex loci celebrationis. No longer
requires you to look at the essential validity of the marriage. This is different to marriages in Australia s 88C
applies to all foreign marriages, if it is valid in a foreign country it will be valid here.
If marriage is valid at time of marriage according to local law (or at time that validity falls to be determined)
then recognised in Australia as valid, subject only to exceptions in s 88D. If there is a marriage recognised
somewhere else, will recognise it here exception if no real consent, s 88D(1). Section 88D(2) mirrors Article
23B.
Marriage valid in Australia if the marriage ss 88C and 88D

Was at the time it was solemnised, valid under the lex loci celebrationis ss 88C(1)(a) or, at the time of
validity of marriage is being determined, been validated by the lex loci celebrationis: s 88C(2)(a) AND

The marriage is essentially valid under the law of Australia: s 88D(2) (3)

If void or voidable under the lex loci celebrationis then not recognised MA s 88D(4) therefore could not grant
declaration of validity. The legislation is constructed specifically to give effect to the lex loci celebrationis.
COMMON LAW GROUNDS OF RECOGNITION
Marriage Act 1961 ss 88E(1) and (2)
Marriage recognised when

The marriage is recognised as valid under the common law rules of private international law; and

If one party to the marriage was domiciled in Australia, both parties were of marriageable age

Marriages that do not fall into what is discussed in s 88E can still be validated by the common law eg formal
and essential validity of the marriage.
Common law is therefore still relevant but only where:

Marriage is invalid by the local law because of failure to comply with formalities of that law, but this
might be considered a common law marriage: Savenis v Savenis; OR

Marriage is invalid in some essential validity respect by the local law, but valid in all other respects by
the law of the domicile; OR

Although valid by local law, falls foul of an exception in s 88D, and that exception does not apply at
common law, the marriage being valid at common law

Thus the legislation gives you a second go if cant get recognised under the legislation where merely gives
effect to lex loci celebrationis, can still try under common law which looks to essential and formal validity, and
the common law may fill the gap by applying the canon law.
Pt VA expressly denies the use of the incidental question method in determining whether a marriage
solemnised in a place outside Australia should be recognised: s 88F. Therefore, if it is necessary to know

102

Private International Law

2010

whether an overseas marriage is valid to determine whether a woman is entitled to an inheritance as the
testators wife, that is to be determined by the rules of Pt VA and not the incidental question method, by the
law governing the primary question of succession.
GROUNDS OF RECOGNITI ON

If it is valid at local law, it is valid in Australia this is simply what s 88C does. As long as requirements of s 88D
are complied with.
If not married or the local law does not recognise this, the next question is whether it is valid in Australia. Just
because it is invalid in the place obtained, doesnt mean invalidated. Although may not do so under statute, can
do so under common law and may be able to get it validated because of religious exception that rectifies
formal validity. Still require s 88D(2) which says have to be over 18 this is always required. The one exception
is s 88D(3) may recognise if at the time want to be validated, over 16 even if at the time they were married
they were under 18 (or even 16.)

103

Private International Law

2010

DISSOLUTION AND ANNULMENT


INTRODUCTION

Determined within Australia and outside Australia need to know the law of the domicile. Every marriage
entered into prior to the changes may have a foreign element. Those that post-date legislation do not have this
effect.
GROUNDS OF RECOGNITI ON

Marriages that pre-date legislation are driven mostly by CL but the Act still has some pre-dating aspects. When
it is governed by CL there are two choice of law rules formal and essential validity. The only extent to which
the Act changes the CL is in relation to the age of marriage, wont recgonise marriages where lex domicile
allows it to be under 18 years.
After 7 April 1986, domicile plays no part in determining validity only lex loci celebrationis.

104

Private International Law

2010

The legislative scheme in Australia is designed to give couples every opportunity to have their marriage
recognised in Australia. If something prevents it from being recognised under the statutory scheme, eg no
formal validity, then the statutory regime allows you to apply the CL regime. In place of the CL concept of
essential validity, the legislation imposes an Australian essential validity of marriage by requiring you to not
breach certain conditions s 88D. However, if missing element of statutory scheme, can rely on CL.
DISSOLUTION AND ANNU LMENT
Matrimonial causes is a federal issue. It is defined to include proceedings in relation to:

Dissolution of a marriage (divorce)

Annulment of a marriage

Validity of a marriage

Maintenance and property distribution, s 4 FLA

JURISDICTION
FLA does covers 3 things: (i) jurisdiction; (ii) choice of law rules; (iii) when you can recognise a foreign divorce or
a foreign annulment.
FLA has exorbitant jurisdiction and quite readily entertains applications. MA does everything in its power to
have union recognised as marriage, and FLA does everything in its power to enable people to dissolve a
marriage. Recognition of divorces and annulments becomes mirror image of jurisdiction powers of courts to
hear these matters.
DISSOLUTION, S 39(3) FL A
On date the application is filed either party is:

Australian citizen

Domiciled in Australia

Ordinary resident and has been for 1 year


105

Private International Law

2010

ANNULMENT, S 39(4) FLA


On date application is filed either party is:

Australian citizen

Ordinary resident

Present in Australia

CHOICE OF LAW: DISSO LUTION AND ANNULMENT


DISSOLUTION

Common law law of the forum

Ss 48, 51 & 53 FLA law of the forum


o

Decree of dissolution can be made even if some or all of the circumstances on which the
decree is based took place outside Australia

Substantive law only one ground for dissolution (12 months continued separation)

ANNULMENT

A decree of nullity must be based on ground that the marriage is void (not voidable)

Determined by applying the relevant choice of law rules for the validity of the marriage
o

Lex loci celebrationis if under s 88

At CL look at combination of lex loci celebrationis and domicile of the parties/lex domicilii

RECOGNITION OF FOREIGN DECREES


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 FLA.

Problems come in with regards to recognition of foreign annulments/divorces. The underlying legislative intent
is to recognise divorces/annulments gives effect to the 1970 Hague Convention on Recognition of Divorces
and Legal Separations.
106

Private International Law

2010

There are two schemes:

Recognition on statutory grounds, s 104(3)


o

Two general conditions must be satisfied

Effected in accordance with the law of an overseas jurisdiction

Requires that it be effected or recognised in the connected place, not


necessarily made there, s 104(8) FLA
o

Need not be the result of civil litigation eg talaq or get, so long as it


leads to an effective dissolution or annulment in a connected place

Party to the decree must have had some personal connection with that foreign place

Governs the matter entirely only through s 104(5) that you can consider CL scheme

Recognition at common law, s 104(5)


o

Common law does not operate in cases where it overlaps with the statutory grounds

Any restrictions on statutory grounds cannot be used to read limitations into the effect of the
common law rules

CL does not have the effected requirement must be obtained in foreign jurisdiction subject
to two exceptions

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. However, it might still be recognised on a statutory ground eg a 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.
ARMITAGE V ATTORNEY GENERAL [1906]

This is the one exception and explains the way the process might work at CL

Facts
o
107

Parties domiciled in NY and obtained divorce in SD

Private International Law

2010

NY law recognised SD divorce parties had no connection with SD

SD recognised divorce based on partys presence

Parties wanted divorce recognised in England

At time, CL of England said the basis for recognising foreign divorces is simply the lex domicile

Held
o

This case extended the CL principle

Because the choice of law rule in NY was the same as in England, will recognise NYs
recognition of the SD divorce as long as the parties connection with NY was domicile

This idea is entrenched in the legislation

CL only does it in this connection that is, connection between England and NY is
domicile

Section 104(10) means in relation to divorces, annulments and legal separations effected whether by decree,
legislation or otherwise. This captures religious divorces such as talak or get.
PERSONAL CONNECTIONS WHICH JUSTIFY RECOGN ITION
For the statutory grounds, the personal connection must have existed at the time the proceedings for
separation, dissolution or annulment were commenced in the foreign place: s 104(1). The common law tends
to require this connection also.
PRESENCE
The mere presence of a party to a 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 Travers v Holley is
probably that this will be sufficient at common law.
ORDINARY RESIDENCE
A foreign decree will be recognised under statute if, at the tie proceedings were commenced, the respondent
was ordinarily resident in the foreign place: s 104(3)(a).
It will also be recognised in some cases where the applicant was ordinarily resident in the foreign place: s
104(3)(b), provided that:

The applicant must have been ordinarily resident in the foreign place at the time proceedings were
commenced

The applicant must have been ordinarily resident in the foreign place for at least one year immediately
before the commenced of the proceedings or the foreign place was the last place where the parties
had cohabited

The rule in Travers v Holley 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.

108

Private International Law

2010

DOMICILE
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: s 104(3)(c).
This is the same at common law.
NATIONALITY
The FLA deems a national of a plurilegislative nation to be a national of all its parts eg a Scot si deemed to be an
English national. A foreign decree will be recognised under statute if, at the time proceedings was commenced,
the respondent was a national of the foreign place: s 104(3)(d). A foreign decree will be recognised under
statute in some cases where the applicant was a national of the foreign place if the following conditions are
satisfied:

The applicant must have been a national of the foreign place at the time the proceedings were
commenced

The applicant must have a more substantial physical connection with that foreign place
o

Sufficient if the applicant had also been ordinarily resident in the foreign place at the time
proceedings were commenced

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 commenced

Sufficient if the applicant had been present in the foreign place at the time proceedings were
commenced and the last place where the parties cohabited had been another foreign place,
and at the time proceedings were commenced, the law of the second place did not provide
for the separation, dissolution or annulment of marriages

The rule in Travers v Holley 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.
STATUTORY GROUNDS OF RECOGNITION
A dissolution or annulment of a marriageeffected in accordance with the law of an overseas jurisdiction shall
be recognised as valid in Australia where:

The respondent was ordinarily resident in the overseas jurisdiction

The applicant was ordinarily resident in the overseas jurisdiction and [additional requirements of
ordinary residence or cohabitation are also met]

The applicant or the respondent was domiciled in the overseas jurisdiction ...

The respondent was a national of the overseas jurisdiction

The applicant was a national of the overseas jurisdiction and [requirements of substantial physical
connection ordinary residence]; or

109

Private International Law

2010

The applicant was a national of, and present in, the overseas jurisdiction and the last place of
cohabitation of the parties to the marriage was an overseas jurisdiction the law of which did not
provide for dissolution annulment or legal separation

If one of these connections is satisfied with the place that got the divorce or the place that recognised the
divorce obtained elsewhere, will recognise it.
COMMON LAW GROUNDS OF RECOGNITION
Common law scheme is from s 104(5) FLA. Grounds of recognition are:

Made in the place of marriage


o

Mitford v Mitford [1923] P 130

Corbett v Corbett [1957] 1 All ER 621

Merker v Merker [1963] P 283

Made in a place with a real and substantial connection to a party


o

Indyka v Indyka [1969] 1 AC 33 (dissolution)

Law v Gustin [1976] Fam 155 (annulment)

In the Marriage of Dornom [1984] FLC 91 556 (cf 104(3) FLA)

INDYKA V INDYKA [1969] 1 AC 33

Facts
o

Czech woman married to English man

W lived in Czechoslovakia and obtained a divorce there and simply wanted that divorce
recognised in England

Problem was the English CoL rule for recognition of divorce was lex domicili had to be
divorced according to law of domicile

In 1969, married women followed domicile of husband so she had an English domicile even
though living in C

Held
o

If English choice of law rule is lex domilcii, has to be divorced according to law of England

As soon as court recognised this saw problem with applying this rule

New rule place by which person who seeks to have divorce recognised has a real and
substantial connection with the place that gave them the divorce

Will recognise divorce so long as you obtain it from a jurisdiction where you have a real and
substantial connection

Domicile may be real and substantial connection, but could be somewhere else

This has been extended at CL so not only will we recognise a divorce obtained in a place
where you have a real and substantial connection but if the place where you have a real and

110

Private International Law

2010

substantial connection recognises a divorce you obtained in another jurisdiction, will also
recognise that divorce
o

Like Armytage but dont require domicile, just real and substantial connection

Recognised in a place with a real and substantial connection


o

Mather v Mahoney [1968] 3 All ER 223

Messina v Smith [1971] P 322

Made in a place exercising a reciprocal jurisdiction


o

Circumstances enabling a court in Australia to hear and determine proceedings for


dissolution and annulment are deemed to allow a foreign court to exercise such a jurisdiction,
and such decrees recognised

Travers v Holley [1953] P 246

Robinson-Scott v Robinson-Scott [1958] P 71

TRAVERS V HOLLEY [1953] P 246

Facts
o

Woman in NSW and husband deserted her

H had English domicile and returned to England

Wife sought to have divorce in NSW

NSW had legislation (to overcome CL problem) which allowed wife who had been in
jurisdiction for 3 years and had been deserted to obtain divorce

NSW readily divorced

When wanted to have divorce recognised, England said their rule for recognition of divorce
was lex domicli womans domicile followed husbands domicile

111

Divorce not in accordance with law of England, in accordance with law of NSW

English legislation had exactly the same exception as in NSW

Private International Law

2010

Held
o

On the basis that England had the same exception to the rule as NSW did, the English court
recognised the NSW divorce eg reciprocal jurisdictional capacities

This effectively became the CL rule

As long as have reciprocal basis for recognition, have recognition of divorce and annulment

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

This rule also applies to annulments

Irrelevant that the forum court did not have jurisdiction to determine similar proceedings at
the time the foreign court made the decree: Indyka v Indyka

Do not have to have reciprocal substantive grounds it must be reciprocal jurisdiction

ROBINSON-SCOTT V ROBINSON-SCOTT [1958] P 71

Court in Zurich granted wife 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

Decree recognised in England, even though under the law of England, the wife was domiciled in
England

Husband had deserted her and she had lived in Zurich for at least three years before applying for the
divorce

If such proceedings had arisen in England, a court could also have exercised jurisdiction in proceedings
for dissolution

MOUNTBATTERN V MOUNTBATTERN [1959] P 43

Facts
o

Similar to Armitage, couple in NY but merely resident in NY for 3 years and got a divorce in
Mexico

112

Mexican divorce recognised in NY in Armitage, NY recognised SD divorce

Private International Law


o

2010

Question was at CL will England recognise the divorce obtained in Mexico b/c it was
recognised in NY

In Armytage the court said will recognise it if the basis which the parties had
connection with NY was domicile

Extended to real and substantial connection

Here no real and substantial connection nor domicile only residents for 3 years

Held
o

Refused to recognise divorce

If merely recognition of divorce obtained in 3rd jurisdiction, require either domicile


or real and substantial connection

Authority for real and substantial connection was Indyka she was a Czech national

Residence for 3 years is probably insufficient as Indyka interpreted it

If resident in NY and divorce obtained in NY there would have been no problem of


recognition

CL structure narrower if trying to get divorce obtained by 3rd jurisdiction

Would be reversed if the rule in Travers v Holley and s 104(8) were combined

UNRECOGNISED DECREES
On the basis that:

A party to the marriage has been denied natural justice

Recognition would be contrary to public policy

Decree does not comply with the law under which it was made
o

This is more controversial it is unlikely the court will consider the law that the foreign court
applied

Ss 104 (4) (5); Igra v Igra [1951] P 404; Re Meyer [1971] P 209;

PEMBERTON V HUGHES[1899] 1 CH 781

English court of Appeal held it would not investigate the propriety of the proceedings in the foreign
court

Stated this principle on the assumption that the matter before the foreign court was one with which it
was competent to deal

113

Private International Law

2010

CONTRACT
DETERMINATION OF THE PROPER LAW
Contract is a product of the will of the parties and is intended to create legal rights and obligations with
reference to some legal system which is the proper law of the contract.
The proper law of the contract is:
the system of law by which the parties intended the contract to be governed, or, where
their intention is neither expressed nor to be inferred from the circumstances, the system of
law with which the transaction has its closest and most real connection
Dicey & Morris
The system of law by which the parties intended to be governed is by including a choice of law clause this is
the subjective approach. The alternative is the object of determination or objective approach. The proper law
of the contract is the Australian choice of law rule of contract. The relevant time for determining the precise
content of the proper law is the time when proceedings inr elation to contract are commenced.
LEGISLATIVE INCURSION ON THE PROPER LAW
Legislation has superseded certain contracts, and will state the substantive law which cannot be contracted out
of.

International carriage of goods by sea

International sale of goods

Insurance

Hire purchase

Consumers sales

CONTRACTS
The framework of public international law the assumption that a proper law must be a municipal law:
Shamil Bank of Bahrain v Beximco[2004] 2 Lloyds Rep 1. Though may contain terms of a contract derived, eg
from Sharia law though still referenced to some municipal system of law. They would only be incorporated
into the contract merely as a term, subject to the proper law of the contract whether express or implied.
Proper law must be the law of a legal entity.
CLASSIFICATION
Contract and contract related claims these are not based on the contract itself, but so closely connected that
they are governed by the contract:

Quantum meruit

Direct actions against insurers under compulsory third party insurance schemes

Actions for indemnity: Sweedman v Transport Accident Commission [2006] HCA 8

114

Private International Law

2010

Assignment of benefit of insurance contract

RAIFFEISEN ZENTRALBANK OSTERREICH AGC V FIVE STAR GENERAL TRADING LLC


Shipowners
(Dubai)

Insurers
Insurance contract

(France)

(English proper law)

Assignment (governing law?)


Bank
(Austria)

Facts
o

Assignment of benefit of insurance contract between ship owner (Dubai) and insurers
(France)

Contract indicated that the contract was to be governed by the law of England even though
the parties were not English and the contract had nothing to do with England

Ship owner assigned rights under insurance contract to Austrian bank

Question what rule governed the assignment of rights under the contract

Held
o

The assignment of rights was so connected to the contract as to be governed by the proper
law of the contract

Because parties chose expressly for law of England to apply to contract

RENVOI
No renvoi where parties have chosen proper law, assume that they have chosen the internal law. Doesnt
seem conceivable that parties would choose a legal system to govern their contract knowing that jurisdiction
would send you onto another jurisdiction.
Neilson v Overseas Projects Corporation of Victoria Ltd suggested that renvoi is an issue which needs to be
taken into account in a range of PIL issues including contract. WASC picked up on this issue in ODriscoll v J Ray
McDermott SA.
ODRISCOLL V J RAY MCDERMOTT SA [2006] WASCA

115

Private International Law

2010

Contract between parties in WA and Singapore, and choice of law for contract was the law of
Singapore
o

It was the law with which the contract had the most real and substantial connection

Issue came up whether limitation period ought to be applied


o

Following Neilson and Pfieffer, limitation periods are substantive

If choice of law is Singapore, Singaporean limitation period should apply

Because we consider limitation periods to be substantive, we also apply Singaporean


choice of law rules

No conflict arose

Raises the possibility that renvoi and choice of law rules may be a pertinent
issue

The courts method plainly rests on the assumption that the doctrine of renvoi was applicable in the
case (and so, at least, anywhere the proper law is to be objectively determined)

AKAI PTY LTD V THE PEOPLES INSURANCE COMPANY LTD (1996) 188 CLR 418

Two-tiered approach
o

Subjective proper law

Express choice

Implied choice

Objective proper law

THE SUBJECTIVE PROPER LAW


EXPRESS CHOICE OF PROPER LAW
The common law recognises that, at the time a contract is made, the parties may provide that the contract is to
be governed by the law of a particular place: Gienar v Meyer.
VITA FOOD PRODUCTS INCORPORATED V UNUS SHIPPING CO [1939] AC 277

Choice of law recognised provided the intention expressed is bona fide and legal, and provided there
is no reason for avoiding the choice on grounds of public policy

116

Private International Law

2010

Facts
o

Nova Scotia ship owner and NY consignee

Choice of law in the contract itself was English law

Contract also contained a term which exempted the ship owner from liability in negligence

The ship ran aground on the way to NY and was stuck there for some time and the cargo of
fish was damaged

Consignee sued for negligence

Ship owner raised defence of exemption clause in the context that English law would
give effect to the exemption clause

Held
o

NS court said the contract has nothing to do with England but the court was willing to give
effect to the contract and the choice of law clause

If the English court recognised the contractual exemption as valid, the court would
give effect to that

The law chosen by the parties will be the proper law of the contract provided the intention
expressed is bona fide and legal

LIMITS TO AN EXPRESS CHOICE OF PROPER LAW


1.

Bad faith (debatable)


o

May be that the court will not respect your choice if you choose in bad faith might apply
law of the forum or objective approach

Golden Acres Ltd v Queensland Estates Pty Ltd [1969] Qd R 378; (1970) 123 CLR 418

One party to the dispute had tried to establish an estate agency in Qld without
registering themselves under Qld legislation

Indicated choice of law was meant to be the law of Hong Kong

Two matters arose

Fact there was Qld legislation that required them to be registered

Choice of law clause was such to avoid Qld legislation, and thus was in bad
faith

Legislation was overriding in any effect it becomes paramount and overrides


degree to which the choice of law governs that issue

Normally point 3 which captures point 1, difficult to imagine where bad


faith stands on its own

2.

Unconnected law (debatable)

117

Some states require a connection with that State

Not required in Australia and the UK

Private International Law


o

2010

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 outrageously offensive to the legal or
moral standards of the forum

3.

4.

Overriding legislation
o

To the extent that contract does not infringe certain legislation, can apply choice of law

Eg s 11 Carriage of Goods by Sea Act 1991 (Cth) complete

Eg Trade Practices Act 1974 (Cth) partial

Public policy
o

If giving effect to choice of law contrary to public policy, a court will not give effect

IMPLIED CHOICE OF PR OPER LAW


Implied from contractual terms such as:

Choice of forum

Arbitration clause

Technical language eg if contract framed using language common to a particular legal system,
indicates parties wanted their rights and duties interpreted according to that system

By themselves, they may not be sufficient, but together they may show a stronger intention. These are not
limited, so there may be a range of factors which show what the choice of law is going to be.
See Compagnie DArmement Maritime SA v Compagnie Tunisienne De Navigation SA[1971] AC 572
THE OBJECTIVE PROPER LAW
The objective proper law is the legal system with which the contract has its most closest and real connection
its seat. The terms of the contract as a whole and the circumstances surrounding it at the time it was formed,
must be taken into account. Factors include:

Place of contracting (lex loci contractus)

Place of performance

Place of residence or business of parties

Nature of the subject matters (eg immovable property)

Currency of payment

Flag of vessel carrying goods

If the parties subjective intention cannot be determined, only then do you objective determine what the
proper law of the contract is. To this list can add choice of forum, arbitration clause etc.

118

Private International Law

2010

Two problems arise:


1.

Possibility of distinguishing between an implied choice and a place with the closest and most real
connection

2.

Evenly balanced factors as to the latter uncertainty that the formula has brought to the objective
determination of the proper law and the associated difficulty in predicting what it would be without
resorting to litigation
o

James Miller& Partners Ltd v Whitworth Street Estates (Manchester) Ltd

JAMES MILLER& PARTNERS LTD V WHITWORTH STREET ESTATES (MANCHESTER) LTD [1970] AC 583

Facts
o

Scottish builder entered into contract to renovate property in Scotland owned by an English
company

Used a standard form contract (English contract) produced by the Royal Institute of British
Architects

K provided that when a dispute arose, the President of the RIBA would appoint an
arbitrator

Dispute did arise, President appointed an arbitrator in Scotland and began arbitration
according to Scottish law

Got to a point where needed to clarify issues of law

Scottish law required arbitrator to do this but English law required a court to
determine

Held
How proper law is determined
Subjective proper law (implied
choice)
Viscount Dilhorne

English law
Scots law
o

Lord Hodson
Lord Guest
Lord Reid
Lord Wilberforce

Four judges thought it was impossible to infer the intention of the parties

119

Objective proper law

English standard form contract most real and substantial connection with England

Private International Law

2010

Building in Scotland, Scottish arbitrator, one party Scottish builder so Scottish law
should apply

Viscount Dilhorne

Thought because the parties chose an English insurance contract, must have
intended English law ought to apply

Acknowledged that if this was not the case, would have considered Scottish law to
have the most real connection

Thus the decision turned on whether Dilhorne though the contract inferred intention

Opposite result would have been reached if he had decided differently on the question of
whether it was a case of implied choice or closest and most real connection

CHANGE OF PROPER LAW


Every contract needs to have a proper law at the time the contract is entered into. Can proper law float? Three
situations:

There is no provision for the proper law, but on the happening of a given event the law of State A is
the proper law
o

Problematic because no proper law at the time the contract was entered

The law of State X is the proper law, but on the happening of a given event the law of State Z is the
proper law
o

As long as indicate what the proper law is to be, thats fine

Some time after the contract has been formed, the parties agree expressly that the law of State Y is
now to be the proper law
o

No problem when parties enter into a contract and failed to express what the proper law was
and then somewhere down the line they realize they have failed and agree what the proper
law is to be

THE ARMAR [1981] 1 ALL ER 498

Doubts as to the first proposition contract requires, at the start, a proper law

Proper law attributable at the time the contract made


o

A contract has to have a proper law at the time it is 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

MULTIPLE PROPER LAWS


More than one proper law of the contract may appear to exist three situations:
1.

True depeage ie to divide

2.

Incorporation

120

Private International Law


3.

2010

More than one contract

DEPEAGE
WANGANUI-RANGITIKEI ELECTRIC POWER BOARD V AUSTRALIAN MUTUAL PROVIDENT SOCIETY (1934) 50
CLR 581 AT 604 PER EVATT J

the whole story, 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
governing law of the contract

LIBYAN ARAN FOREIGN BANK V BANKERS TRUST CO [1989] QB 728

K between bank and 1 of its customers

Had two bank accounts for customer, one in England and one in NY

Court said relationship to bank account in England, English law governed that contractual relationship
but for NY bank account, was to be governed by NY law

FORSIKIRINGSAKTIESELSKAPET VESTA V BUTCHER [1988] 2 ALL ER 43

Facts
o

Norwegian contract where express choice of law was Norway

Within insurance contract, security term that required property to be under surveillance for
24 hours

Insurer entered into reinsurance contract said to be governed by English law

Incorporated by reference one of the terms of the original insurance contract ie


security clause

Held
o

Although express choice of law clause was English law, clause about the security was to be
governed by Norwegian law

INCORPORATION
Where term, governed by law of State A, is simply incorporated into the contract by its terms, with the contract
governed by the law of State B.
Incorporated terms requires validity to be determined by the proper law of the contract law of State B. Rights
and duties from legislation in one jurisdiction are simply contractual terms, but choice of law is another
jurisdiction.
VITA FOOD PRODUCTS INCORPORATED V UNUS SHIPPING CO [1939] AC 277

The proper law was the law of England but the contract provided that in some cases the provisions of
Untied States or Canadian legislation were to apply

121

Private International Law

2010

FORMATION AND PERFORMANCE


Proper law does not govern all aspects of the formation and performance of the contract. What law would
govern the formation of the contract if the formation is what is bringing the contract into question.
Formation: parties capacity to contract, need to comply with formalities etc.
Performance: whether contract is enforceable, whether it is legal, obligations implied by law, failure to
perform etc.
FORMATION
GENERAL PRINCIPLES
Recognise proper law as expressed cannot apply If what is in question is the very validity of the contract. Can
apply that law as the putative proper law of the contract consistent authority for the fact that this is as close
as can get to determining what the parties intended the substantive law to be.
COMPANIA NAVIERA MICRO SA V SHIPLEY INTERNATIONAL INC, THE PAROUTH [1982] 2 LLOYDS REP 351

The law of the cause for issues relating to the formation of a contract should be the putative proper
law

MYNOTT V BARNARD (1939) 62 CLR 68, 80

Putative proper law determined objectively not that of parties choice

Even though parties have chosen proper law, probably better to determine the proper law objectively

Approach that seems to be favoured in relation to a whole lot of matters

OCEANIC SUN LINE SPECIAL SHIPPING CO INC V FAY (1988) 165 CLR 197, 225

Law of the forum

SPECIFIC ASPECTS
Once something is procedural, will be determined by lex fori if substantive, then question arises whether
objective proper law applied or subjective as determined by parties.

Contracting capacity objectively determined putative proper law (determined by closest and most
real connection)

Offer and acceptance objectively determined putative proper law

Statutes of frauds much uncertainty, probably putative proper law


o

Much more narrowly construed than they were bringing into question whether procedural or
substantive result of this case is probably substantive: John Pfeiffer

If they are substantive and result is K, should have been in writing, what jurisdiction do we
refer to?

122

Expressly chosen jurisdiction of the parties or objectively determined by the court

Private International Law

Consideration - objectively determined putative proper law

Reality of consent uncertain but likely to be putative proper law

2010

PERFORMANCE
GENERAL PRINCIPLES
MOUNT ALBERT BOROUGH COUNCIL V AUSTRALIAN TEMPERANCE AND GENERAL LIFE ASSURANCE SOCIETY
[1938] AC 224

Proper law as chosen or where does not exist, objectively determined

ILLEGALITY IN THE PLACE OF PEROFMRANCE


It is not illegal in either the law of the forum or under the proper law, but it is in the place of performance: Ralli
Bros v Compaia Naviera Sota y Aznar.
RALLI BROS V COMPAIA NAVIERA SOTA Y AZNAR [1920] 2 KB 287

Facts
o

The forum was England

The proper law of the contract was English

The contract was illegal in the place of performance, Spain

Held
o

The court would not enforce a contract illegal in the place of performance

How to interpret the result?


o

The way in which the case expressed that principle makes it unclear as to whether it is a
choice of law rule or an internal rule of England

Choice of law effect of depeage

Contract will be governed by the law of England, but the extent of


performances illegality will be determined by the place of performance
o

If this is the case, have 2 proper laws of contract

Two ways to determine

Is the rule a choice of law rule?

If so, the contract will not be enforced by a Queensland court whenever it is


illegal in the place of performance

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

Eg Royal Boskalis Westminster NV v Mountain [1999] QB 674

Is the rule an internal rule of common law countries?

Therefore, the rule was applied in Ralli Bros because the (internal) law of
England was the proper law

123

Private International Law

2010

If so, the contract will not be enforced by a Queensland court whenever


o

The proper law of the contract is the law of a common law


country; AND

The contract is illegal in the place of performance

Toprak v Finagrain [1979] 2 Lloyds Rep 98, 114

Euro-Diam Ltd v Bathurst [QB] 1, 14

SPECIFIC CONTRACTS

Carriage of Goods by Sea Act 1991 (Cth)

Insurance Contracts Act 1984 (Cth)

Sale of Goods (Vienna Conventions) Acts

Trade Practices Act 1974 (Cth)

REFORM
Australian Law Reform Commission 1992 Choice of Law Report
the proper law of the contract as developed by the common law is ill defined and
uncertain in scope and inadequate to deal with modern developments in international
contracts

124

Private International Law

2010

TORT
INTRODUCTION
PHILIPS V EYRE (1870) LR 6 QB 1, WILLIES J
In order to found a suit in England for a wrong alleged to have been committed abroad, two
conditions must be fulfilled. First, the wrong must be of such a character that it would have
been actionable if committed in England Secondly the act must not have been justifiable
by the law of the place where it was done.
RULE OF JUSTICIABILITY OR CHOICE OF LAW RULE?
ANDERSON V ERIC ANDERSON RADIO & TV PTY LTD (1965) 114 CLR 20

Australia justiciability

Approach initially to say these were threshold issues

Then the action would be available in Australia matter of justiciability

Hadnt yet determined by what law the matter would be heard in Australia

Matter in tort which would have been actionable in Australia and the foreign jurisdiction so
could be heard in Australia, then the court went on to apply the law of the forum
o

Therefore, was not seen as a choice of law rule but a threshold issue

Dominant approach was to see these as choice of law rules


o

Had to apply laws of both jurisdictions and only where both jurisdictions allow the
action to succeed would be actionable

Rigorous burden for P to succeed

BOYS V CHAPLIN [1971] AC 356

UK choice of law rule double actionability rule

Facts
o

Car accident in Malta where 2 English servicemen were injured

Court saw Phillips as requiring two choice of law rules application of law of forum
and place where tort occurred

Held
o

So much of that case had to do with England and the fact it occurred in Malta was
so fortuitous, that the minority judgment at least considered an exception to the
requirement that satisfy two choice of law rules

Double actionability rule seen as appropriate for most cases but not all
should be exception to that, ie proper law of the tort

125

Where so many factors connect it with 1 jurisdiction not the other

Private International Law

2010

BABCOCK V JACKSON 191 NE 2D 279 (1963)

United States proper law approach: Babcock v Jackson

Facts
o

Two NY residents go for a drive into Canada and involved in a car accident

Passenger wants to sue the driver in negligence

Ontario had a statute which prevented passengers from cars suing drivers

Guest statute voluntarily went into vehicle and couldnt sue

If applied lex loci delicti, P would not have succeeded in NY

Car registered in NY, journey started and was to end in NY, residents domiciled in
NY

Held
o

While accident occurred in Ontario, so many of the factors would connect it with
NY that NY law ought to apply

Fashioned the proper law of the tort

Not necessarily dictated by lex loci delicti merely one factor

The court is to consider

The place where the injury occurred

The place where the conduct causing the injury occurred

The domicil, residence, nationality, place of incorporation and place of


business of the parties

The place where the relationship, if any, between the parties is entered

BREAVINGTON V GOLDMAN (1988) 169 CLR 41

HCA rejected Phillips v Eyre for a number of reasons, but not clear on what the choice of law
rule was

Part of difficulty had to do with the constitutional circumstances

MCKAIN V RW MILLER & CO (SA) PTY LTD (1991) 174 CLR 1

HCA returned to Phillips and reformulated two rules, but applied double actionability rule

Lasted until 2000


o

Part of reasoning which underpins double actionability rule may apply to earlier
cases

The double actionability rule was rejected by John Pfeiffer (domestic) and Renault
(international)
o

126

Dont have to satisfy law of forum and lex loci delicti, only lex loci delciti

Private International Law

2010

United States
Differs between States, but many adopt proper law approach: Badcock v Jackson 191 NE 2d 279
(1963)
United Kingdom
Abolished rule in Phillips v Eyre (Private International Law (Miscellaneous Provisions) Act 1995) and
adopts a proper law approach
Canada
Lex loci delicti with a proper law exception: Tolofson v Jensen [1994] 3 SCR 1022
AUSTRALIAN APPROACH
JOHN PFEIFFER PTY LTD V ROGERSON (2000) 203 CLR 503

The rule
o

Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at 540

the common law should now be developed so that the lex loci delicti is the
governing law with respect to torts committed in Australia but which have an
interstate element

Kirby J at 562 - 3

Subject to the Constitution, where the court of the forum has jurisdiction which it
exercises and where proceedings for a civil wrong are actionable in accordance with
the preceding rules, the court shall, in determining the substantive rights and
obligations of the parties, apply to the facts found, the common law of Australia as
modified by the statute law of the place where the acts or omissions occurred that
give rise to the civil wrong in question

What court had to say about lex loci delicti based on the fact that two jurisdictions were
Australian

Any exceptions?
o

Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at 538

Adopting any flexible rule or exception to a universal rule would require the closest
attention to identifying what criteria are to be used to make the choice of law.
Describing a flexible rule in terms such as "real and substantial" or "most significant"
connection with the jurisdiction will not give sufficient guidance to courts, to parties
or to those, like insurers, who must order their affairs on the basis of predictions
about the future application of the rule.

127

Private International Law

2010

REGIE NATIONAL DES USINES RENAULT SA V ZHANG 210 CLR 491

Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at 17, 20 1


o

The question then is whether, consistently with Pfeiffer, and by way of extension to it, it is
the lex loci delicti which should be applied by courts in Australia as the law governing
questions of substance to be determined in a proceeding arising from a foreign tort. If so,
there is a subsidiary question as to whether, as the respondent would have it, there should
be appended to that choice some "flexible exception" doctrine resembling that found in Boys
v Chaplin

The submission by the Renault companies is that the reasoning and conclusion of Pfeiffer that
the substantive law for the determination of rights and liabilities in respect of intra-Australian
torts is the lex loci delicti should be extended to foreign torts and that this should be
without the addition of any flexible exception. That submission should be accepted

TORTS AND RENVOI


NEILSON V OVERSEAS PROJECTS CORPORATION OF VICTORIA LTD (2005) 221 ALR 213

This case raised another complexity renvoi in the case of torts


o

Prior to 2000, considered whether P would succeed by applying two choice of law
rules

Merely considered internal laws, did not choose to consider choice of law
rules

Chinese choice of law rule, apply where parties have more substantial and real connection n
o

To get to a point where the court wants to apply this exception, it has to get to a
point of applying choice of law rules

The effect was that the lex loci delicti (substantive) did not govern the tort
o

Hard rule in Zhang and Pfeiffer says only apply lex loci delicti

As soon as bring renvoi, have the possibility of fashioning an exception to


the lex loci delicti to the extent that you end up applying the law of the
forum

128

Private International Law


o

2010

Perhaps, following Neilson, not correct to say one choice of law rule

True in form but not in substance

Flexibility is artificially created if want that flexibility, why dont


you create should be an alternative

Controversial
o

Supported as

Providing flexibility Keyes

Delivering uniformity in outcome between forum and foreign court


Briggs

No forum shopping delivers uniformity of outcome between the


forum and the place of the tort

Rejected as

Doesnt come close to addressing lex loci delicti

Undermining territoriality, predictability, and simplicity Mortensen

Certainly undermined by the fact that relying on a foreign body of laws choice of
law rules and you dont know what that is/where it will send you

If you fashion your own exception to the lex loci delicti, have some control
over which body of law will resolve that issue

Alternative suggested exception based on proper law of the tort


o

Rejected by HCA as giving rise to uncertainty

Equivocal by Gray

Support by Mortensen

UK Private International Law (Miscellaneous Provisions) Act 1995

Only exception is public policy narrowly construed


o

Kuwait Airways Corporation v Iraq Airways Co [2002] 3 All ER 694

Claim for conversion held, by the rule in Phillips v Eyre to be governed by


the law of the place of the tort Iraq as well as the law of the forum
England

Iraqi law was also held to have offended English public policy to the extent
that, at the time, it violated UN Security Council Resolutions

SCOPE OF THE LEX LOCI D ELICTI CHOICE OF LAW RULE


While it covers the tort itself, what of other issues related to, but not necessarily part of the tort itself,
including:

Determining the place of the tort?

Survival of actions?

Wrongful death claims?

Interspousal immunity?
129

Private International Law

Indemnities?

Contractual defences to tort actions?

2010

PLACE OF THE TORT


The place of the tort is largely determined by the law of the forum, however the process is not quite as simple.
Concepts that are embedded in the lex loci delicti jurisdiction inform the way the form court determines where
the tort occurred. Where the law of the place of the tort has some role to play as the law of the cause, it is
important for the law of the forum to fix one place as the location for that tort.
The mere fact doing this suggests this is an approach of the law of the forum mechanism by which try and
determine what the lex loci delicti will be.
DISTILLERS CO (BIOCHEMICALS) LTD V THOMPSON [1971] AC 458

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?

May depend on the tort alleged to have occurred


o

If tort alleged is negligent manufacture, then place of manufacture

If tort alleged is negligent failure to warn, then place where product marketed or sold

Misrepresentation where communication was received: Voth v Malindra Flour Mills (1990) 171 CLR 538
Defamation where publication received in communicable form: M Isaacs & Son v Cook
Maritime accidents outside any states jurisdiction the law of the flag (where ship is registered). If in port,
usually the port state.
CLASSIFICATION OF SPECIFIC ISSUES

SURVIVAL OF ACTIONS & WRONGFUL DEATH

130

Private International Law

2010

The first is a tort, the second is because of a tort. The tort that exists has to exist for both actions to survive, but
could be separate actions from original tort.
SURVIVAL OF ACTION
Tort occurs in State B and injures one of the parties that would have been a party to that particular matter.
Two approaches are possible:

Choice of law rule could be applied to the action brought by or against the personal representative
o

Would require survival of actions under the law of the place of the tort

Choice of law rule could be applied to the action that was vested in or subsisting against the deceased
o

Requires a survival of action under the law of the forum

Uncertain, but see Kerr v Palfrey [1970] VR 825


WRONGFUL DEATH
Parties who were dependent on the deceased suing in their own right. There are two approaches:

Classified as a tort-like claim (ALRC) governed by lex loci delicti

Independent (statutory) claim governed by lex fori, but conditional of tort governed by lex loci delicti

Uncertain, see Koop v Bebb (1951) 84 CLR 629


INTERSPOUSAL IMMUNITY
Abolished in Australia in FLA, but exists in other countries.
WARREN V WARREN [1972] QD R 386

Could be governed by lex loci delicti (classified as tort); or

Lex domicile (classified as an issue of personal capacity

INDEMNITY
SWEEDMAN V TRANSPORT ACCIDENT COMMISSION [2006] HCA 8

NSW resident

Victorian
resident

131

Private International Law

2010

Facts
o

Particularly problematic where no fault compensation schemes

NSW resident injured a Vic resident in NSW

Vic resident in Vic decides to claim compensation from no fault comp scheme under Vic
legislation

Fund turns around and says going to claim against person who causes injury only to find that
there is no indemnity in NSW

If applied lex loci delicti, Vic claimant would have no action in an indemnity in NSW

Question arises as to whether we should classify an indemnity as a matter


of tort or should we classify it as something else

Held
o

Will not classify indemnities as tortious but they are quasi-contractual

NSW resident responsible for paying not b/c of lex loci delicti, but domicile of claimant
requires him to do so

CONTRACTUAL DEFENCES TO TORT ACTIONS


Contract provides an exemption for liability arising from a tort. There are two ways this can be classified:

Tortious (lex loci delicti)

Contractual (proper law of the contract)

Undecided, except that by focusing on the dispute, which relates to the effect of the contractual exemption
clause, the matter is more likely contractual.
Place where tort occurred where cant contract out of liability if governed by proper law of the contract
(usually jurisdiction which allows such clauses) clause will be good defence. If court classifies as tortious, may
be struck out.

132

Private International Law

PRIVATE INTERNATIONAL LAW

133

2010