Private International Law

Structure
1) Does the court have jurisdiction - think first of the UCPR
2) Defendant's submission - if they submit, that's ok - if not it may be a conflict of law If your client is outside Australia,
1) Does the court have jurisdiction? (Don't just turn up!) Just
because we have been served doesn't mean the court has
jurisdiction
2) 12.11 if NSW - you can turn up without submitting to
jurisdiction - READ THE RULES - say to court: Don't give leave
to proceed, or strike out the originating process
3) Look at Schedule 6 - as well as 11.2 and 11.4
4) Plaintiff must still show it is within the schedule - it does not
have to be 'entirely' within the schedule, (paragraph W) - ONUS
IS ON PLAINTIFF. So claim is not struck out. What next?
5) Persuade the court not to exercise their jurisdiction. Check if
there is an arbitration agreement. Under the International
Arbitration Act (check this!!!) the court MUST stay proceedings
5) If the court will exercise their jurisdiction, what is the
applicable law?
7) An exclusive jurisdiction clause - this brings into question
- Is it an exclusive jurisdiction clause
- Even if it is, should the court hear it anyway?
- Remember it's different if NZ is involved
8) If a foreign judgment has been entered, is it enforceable?
8) If that doesn't work, FNC, Res Judicata, Ashun Estoppel, Issue
Estoppel,
9) If that doesn't work, try and knock off foreign proceedings
through an anti-suit injunction
For NZ
Trans-Tasman Proceedings Act 2010 (Cth)

Stare Decisis

There is only one common law of Australia therefore HCA is

authoritative and binding.
If no HCA authority, decisions of intermediate appellate courts
are not binding but should not be departed from by other
intermediate appellate courts unless they are convinced such
decisions are plainly wrong: Farah Constructions
Courts will generally follow their own previous decisions,
however HCA is not so constrained and may depart from
previous decisions.
Authorities from other countries are not binding: Cook v
Cook (HCA)
Only if there is an absence of Australian authority can
Australian courts can look to the common law traditions of
other countries, though views of foreign courts are still nonbinding and will still be scrutinized carefully for their
international acceptance and approval: Union Shipping
(NSWCA)

Jurisdiction

In any question of conflict of laws, the court will apply the lex
fori: 'the law of the forum'.
Jurisdiction is based on the ability of courts to serve process. If
you can't serve process, you don't have jurisdiction.

Court Sources of Jurisdiction

NSW Supreme Court:
- Statutory jurisdiction under Supreme Court Act 1970 (NSW)
- Has inherent jurisdiction that isn't necessarily written down
Federal Court:
- Statutory jurisdiction under Federal Court of Australia Act 1976
(Cth)
- Accrued jurisdiction
- Associated jurisdiction

Personal Jurisdiction
Territorial jurisdiction based on defendant's presence

A person against whom a claim is made (generally the defendant)

must be amenable to service of courts initiating process
(statement of claim etc)

(a) Within the territorial jurisdiction of the court

(b) Elsewhere in Australia OR
(c) Outside Australia
Limitations/rules relating to (b) and (c)
Gosper v Sawyer (1985) 160 CLR 548; Laurie v Carrol (1958)
98 CLR 310
The ordinary basis of territorial jurisdiction is the personal
presence of the defendant within the court's territory at
whatever be the relevant time or times
Uniform Civil Procedure Rules 2005 under the Civil Procedure
Act 2005 (NSW)
When personal service is required: UCPR 10.20
Any originating process/ order for examination or garnishee
order in:
- Supreme Court
- District Court
- Industrial Relations Commission
- Land and Environment Court
- DDT
Local Court:
- Personal Service
- At business/residential address with person apparently
employed/ residing who is above 16
- By post to business/residential address
Subpoenas in District/ Local Court:
- Personally served

- At business/residential address with person apparently

residing who is above 16
- By post to business/residential address
How personal service effected generally: 10.21
(1)By leaving a copy of the document with the person, or putting
it down in the persons presence and telling the person the
nature of the document.
(2)Leaving it as near as praticable
How to personally serve a corporation: 10.22
- By personally serving a principal officer of the corporations
- By serving the document on the corporation in any other
manner
permitted by law.
Substituted and informal Service: 10.14

Substituted means INSTEAD of personal service (ie same

jurisdictional scope)
(1) If it is not practical, the court can order a form of
substituted service

Joye v Sheahan (1996) 62 FCR 417

If the defendant knew service was coming or left to avoid it,
you can get an order for substituted service
Maharanee of Baroda v Wildenstein
Even if you are tricked into coming into the jurisdiction,
service is still valid.
Perrett v Robinson
Service still valid if the defendant came into the jurisdiction
specially to be served, e.g. to obtain juristic advantage. Not
fraudulent.

Corporation present in NSW Jurisdiction

Common Law
National Commercial Bank and Wimborne

The test is whether the corporation is carrying on

business in the jurisdiction. This is possible through:
1) An agent that has authority to bind the
corporation to contracts in NSW. It's not
sufficient if the agent is merely ministerial.
2) Whether the business has a fixed address
3) Whether the business has been continued for a
sufficiently substantial period of time.
4) It is relevant to consider whether it employs
staff, pays wages or expenses, (i.e. maintains
an office), pays rent, has its name displayed.

Just because there is no objection to a cross claim or

an extension of time to file the cross claim does not
mean a party is waiving its right to protest jurisdiction

Sunland Waterfront (BVI) Ltd v Prudentia Investments

P/L(No 2) [2012] VSC 239
- "System, continuity and repetition" of the activity is
required to be deemed to be carrying on business. "Ad
hoc" business is not enough.
- There must always be present some element of commerce
or trade such as a private citizen or trader might undertake.
- Such presence is not established by showing that the
foreign corporation has appointed a local solicitors to
commence or defend particular legal proceedings in the
jurisdiction.
Pan Australia Shipping Pty Ltd v The Ship 'Comandate' (No
2) [2006] FCA 1112
Ordinarily, an arbitration agreement will give rise to the
Court holding the parties to their exclusive procedure for
the resolution of any dispute to which the agreement
applies. However there is no reason why the parties cannot
agree afterwards to use litigation, rather than follow the
arbitration agreement in which case the agreement
becomes inoperative or abandoned
A party can be only held to have waived/ elected if it had so
communicated its waiver/ election to the other party in clear
and unequivocal terms. An waiver/ election arises when a
party is confronted with and makes a choice between the
exercise of alternative and inconsistent rights. The party is
not obliged to elect at once, but when it takes a step which

is consistent only with one of those rights the law attributes

to it an election to abandon the other right
Statute: Corporations Act 2001 (Cth)
s21: Carrying on business in Australia or a State or Territory
(1)A body corporate that has a place of business in
Australia/State/Territory carries on business in
Australia/State/Territory
(2)Includes using share transfer/registration office, or
administering, managing, or otherwise dealing with, property
situated in Australia
(3)Despite subsection (2), a body corporate does not carry on
business in Australia, or in a State or Territory, merely
because, in Australia, or in the State or Territory, as the case
may be, the body:
(a) is or becomes a party to a proceeding or effects settlement
of a proceeding or of a claim or dispute; or
(b) holds meetings of its directors or shareholders or carries
on other activities concerning its internal affairs; or
(c) maintains a bank account; or
(d) effects a sale through an independent contractor; or
(e) solicits or procures an order that becomes a binding
contract only if the order is accepted outside Australia, or the
State or Territory, as the case may be; or
(f) creates evidence of a debt, or creates a security interest in
property, including PPSA retention of title property of the
body; or
(g) secures or collects any of its debts or enforces its rights in
regard to any securities relating to such debts; or
(h) conducts an isolated transaction that is completed within a
period of 31 days, not being one of a number of similar
transactions repeated from time to time; or
(j) invests any of its funds or holds any property.
Service on a Corporation
Note foreign corporations must be registered under 601CD
of the Corporations Act 2001 (Cth)
Statute: Service and Execution of Process Act 1992 (Cth)
s 9: Service on companies and registered bodies
(1)Service is effected by delivering or posting the document to
the companys registered office

(2)Service can be effected by personal service of a director of the

company
Note parallel provision in s 109X of Corporations Act 2001
(Cth)

Service elsewhere in Australia:

Service and Execution of Process Act 1992 (Cth)
s 12: Effect of Service
(1)Service of a process has the same effect and may give rise to
the same proceedings as if the process had been served in the
place of issue, i.e. if you serve in Victoria, it has the same
effect as if you served in NSW.
s 15: Initiating process may be served in any part of
Australia
(1)An initiating process issued in a State may be served in
another State.
(2)Service on an individual must be effected in the same way as
service of such an initiating process in the place of issue.
This expands the jurisdiction of the courts to cover all of Australia.

s 20:
(1) Transfer between courts when proceedings between the
same parties or concerning the same subject-matter are
pending in different superior courts which court is more
appropriate?
(3)Transfer when the interests of justice so require
Intra Australian Cases BHP Billiton:
Test not the same as forum non conveniens: it must be both
necessary and sufficient that other court is more
appropriate if so, transfer though courts are reluctant to
do this
s 21: Courts cannot issue anti-suit injunctions against one
another

McEntee v Connor (1994) 4 Tas R 18

The effect of the cross- vesting legislation is such that
transfer to another supreme court will occur only if it is in
the interests of justice.
Jurisdiction based on defendants submission
Voluntary Submission
Defendant can submit to the courts jurisdiction by:
Turning up to court note NSW does not allow for
conditional appearances
Express agreement UCPR 10.6
Authorising lawyers to accept process UCPR 10.13
Remember submission to jurisdiction is different to the
governing law
Howard v National Bank of New Zealand Ltd
The entry of an appearance by a respondent outside the
jurisdiction has long been regarded as such an act of
voluntary submission to jurisdiction another way is by
waiving objection to jurisdiction by taking a step in the
proceeding inconsistent with maintaining that objection
Here instructing a solicitor to accept service constitutes a
submission to jurisdiction
Garsec v His Majesty the Sultan of Brunei (2008) NSWCA 211
A party has a right to withdraw an appearance if the claim is
withdrawn. However if a new claim is filed and they take no
steps to protect their position, instead taking active steps in
proceedings, this right to withdraw is lost.
Submission by Appearance
Marlborough Harbour Board v Charter Travel Co
When a foreign party submits to jurisdiction regarding a
particular matter, this doesn't mean they have submitted to
the jurisdiction in every matter.
However they do submit to a cross claim based on the SAME
ESSENTIAL SUBJECT MATTER.
Vertzyas v Singapore Airlines Ltd (2000) 50 NSWLR 1

It is a question of degree whether the acts in the court

proceedings of the party said to have submitted to the
jurisdiction are to be regarded as inconsistent with that
party maintaining his or her objection to jurisdiction so as to
constitute a waiver of such objection. Not every act which
seeks to raise the merits of the other party's case will be
regarded as inconsistent but only those which manifest an
unequivocal intention to contest those merits.
Here asking for further particulars, and interviewing
doctors, amounted to a waiver of the right to object to
jurisdiction.

Service Outside Australia

General Service Outside Australia:
11.1: Applies to Supreme Court
11.2: JURISDICTION TO SERVE OUTSIDE AUSTRALIA: Picks up
Schedule 6; note in the case of NSW and most of the other
states, there is no prior leave required for service out of the
jurisdiction. Exceptions are WA and the Federal Court - leave
required.
11.3:
(1) Originating process must contain notice if
intended to be served
outside Australia
(2) Unless intended to be served in accordance with
Hague
Convention, e.g. Article 8
11.4: LEAVE IS REQUIRED IF PLAINTIFF OUTSIDE AUSTRALIA
AND NO APPERANCE IS ENTERED; The plaintiff has to show,
to the satisfaction of the court, that their claim comes within
Schedule 6 and the court should allow them to proceed ex
parte (see case law)
11.6: Need not be personally served as long as in
accordance with law of country where served
11.7: Application to set aside service Court can set aside
originating process on application by defendant e.g.
because court is an inappropriate forum (see also 12.11)
(Note: it is debateable whether this is the same as the
clearly inappropriate forum test of forum non conveniens.
Most courts take the view that they mean the same thing -

however Allsop J cast doubt on this in Studorp v Robinson at

[5]
11.8A: applies to convention agreements between Australia
and other countries but not applicable if to be served in
country which is a party to the Hague Convention.
Defendant can object to jurisdiction: UCPR 12.11
(1)(a) Court can set aside originating process
(b) Court can set aside service
(h) Court can decline to exercise jurisdiction
UP TO HERE NOW 1pm
Schedule 6
- As a general rule, they are read separately and
disjunctively
- See also (w) - if the claim is partly in one and partly in
another it is ok as long as THE ENTIRE CLAIM IS BROUGHT
WITHIN THE HEADS
Note the burden of proof is on the party bringing the claim;
then burden on party seeking to show that court is an
inappropriate forum / court should decline to exercise
jurisdiction
(Note the jurisdiction of the Federal Court to serve outside Australia
is found in the Federal Court Rules 2011: 10.42)
When has a cause of action arisen in NSW?
Distillers Co (Biochemicals) Ltd V Thompson [171] AC 458
Arises when the act of the defendant that gives the plaintiff
a cause of complaint occurs in the state
Here the tort was negligence; the failure to warn of the
dangers of the drug occurred in NSW
Re Mustang
Here the delinquency of a company director was held to
have occurred in NSW as the company (in liquidation) was in
NSW, and the winding up was in NSW
Where do breaches of contract occur?

Showtime Touring Group Pty Ltd v Mosely Touring Inc [2010]

NSWSC 974
A contract is made when acceptance reaches the offeror this applies to electronic communications, including email.
If repudiation takes place by letter or telephone the breach
occurs at the place from which the message was sent
Where the breach consists of failure to perform, the place of
breach is where the obligation in question was due to be
performed
Failure to pay generally the place of business or residence
of the payee (the person to whom money is owed)
(Here a contract was signed in NSW then sent to New York,
back to the offeror held that the contract was made in New
York and Schedule 6 had no application).
Where do torts and damage from torts occur?
Dow Jones & Co v Gutnick (2002) 202 CLR 575
Defamation is located at the place where the damage to
reputation occurs. In the case of material online, it is where
the person downloads the material that the tort of
defamation is done.
Sigma Coachair Group Pty v Bock Australia Pty Limited
[2009] NSWSC 684
Misleading / deceptive conduct tort occurs where the
statement is received
(Here a misleading and deceptive catalogue representing
that you could use compressors in air con units was relied
upon in NSW thus cause of action and loss both in NSW)
Flaherty v Girgis (1985) 4 NSWLR 248
Damage...includes all the detriment, physical, financial and
social which the plaintiff suffers as a result of the tortious
conduct of the defendant.
What are the criteria for leave to proceed when no
appearance is entered by a foreign defendant?

Agar v Hyde
The correct test is to look at the claims that the plaintiff
made in the statement of claim; on the basis of these
claims, is it a cause of action arising in the state?
Court would only grant application to set aside originating
process served outside Australia if there was a high degree
of certainty that the claim would fail if it went to trial in the
ordinary way. So the test is the same for both local and
overseas defendants.
Studorp v Robinson [2012] NSWCA 382
Due to questions of international comity, only the Supreme
Courts and other superior courts can serve outside
Australian jurisdiction.
Sutton v BE Australia
The Industrial Commission has been held to be a superior
court and has authority to serve outside Australian
jurisdiction. This is because:
- It has its own legislation
- Its rules can prevail over the UCPR
- Because of this it picks up Part 11 of UCPR (it is a
"superior court")
Flo Rida
The District Court is not a superior court and cannot serve
process overseas
Trans-Tasman Proceedings Act 2010 (Cth)
s 8: (1) Applies to all Australian courts and selected
tribunals
(2) Except excluded matters mainly family law,
actions in rem etc
s 9: (1) Civil proceedings may be served in New Zealand
(2) However the document must be served the same
way as it is
required to be served in Australia
s10: Has the same effect and gives rise to the same
proceeding as if the initiating document had been served in
the place of issue

What can a NZ defendant do to avoid this?

s17: may apply to Australian court to stay proceeding on
basis that NZ court is more appropriate court to
determine matters in issue
s 19:
(1) Australian Court MAY stay proceedings if
satisfied
That NZ court has jurisdiction to determine matters
in issue between parties to proceeding AND
Is more appropriate court to determine matters
(2) In determining whether a New Zealand court is the
more appropriate court to determine those matters,
the Australian court must take into account the
following matters:
(a) the places of residence of the parties or, if a party
is not an individual, its principal place of business;
(b) the places of residence of the witnesses likely to be
called in the proceeding;
(c) the place where the subject matter of the
proceeding is situated;
(d) any agreement between the parties about the court
or place in which those matters should be determined
or the proceeding should be commenced (other than an
exclusive choice of court agreement to which
subsection 20(1) applies);
(e) the law that it would be most appropriate to apply
in the proceeding;
(f) whether a related or similar proceeding has been
commenced against the defendant or another person in
a court in New Zealand;
(g) the financial circumstances of the parties, so far as
the Australian court is aware of them;
(h) any matter that is prescribed by the regulations;
(i) any other matter that the Australian court considers
relevant;
and must not take into account the fact that the
proceeding was commenced in Australia.
s 20:

a) An Australian court MUST stay proceedings if

satisfied that there is an exclusive jurisdiction clause
nominating a NZ court
b) Must not stay the proceeding if satisfied there is an
exclusive jurisdiction court nominating an Australian
court

s 20(2A): s20(1)(b) does not apply if Aus court satisfied that

agreement is null and void under Australian law (inc. rules
of PIL)
s20(3): An exclusive choice of courts agreement is:
a written agreement
Between the parties that
Designates the courts (or courts)
Of a specified country
To the exclusion of any other courts
As the courts to determine disputes between the
parties that include those matters

s21

(1): Australian court cannot stay civil proceeding on

forum grounds connected with New Zealand otherwise
than in connection with this Part.
(2) No effect on power of Australian court to stay the
proceeding on any other grounds

s 22 (1) An Australian court cannot restrain a NZ court on

the ground that a NZ court is not the appropriate forum
(2) An Australian court must not issue an anti-suit
injunction against a party to a civil proceeding in a NZ court
Discretionary Non-Exercise of Jurisdiction
International Arbitration Act 1974 - s 7
- If there is a valid arbitration agreement, the court DOES
NOT have discretion and this agreement must be followed
Foreign Jurisdiction Clauses
- Submission to the jurisdiction a basis for a court to take
jurisdiction over a case (Sch 6) r(h)
- By submission to jurisdiction
- By agreement to submit
- Usually in the parties' contract pursuant to an exclusive or non
exclusive jurisdiction (choice of courts) clause
- To submit to the forum court
- To submit to another court

- To submit to arbitration
- Note choice of law does NOT mean choice of court - just
because a contract says 'the parties agree to the law of Hong Kong'
DOES NOT mean they are agreeing to Hong Kong Courts AND VICE
VERSA
FAI General Insurance v Ocean Marine Mutual Protection and
Indemnity Ass 1997 (41) NSWLR 117
Dispute resolution/ arbitration clauses are seen as a
separate contract so even if the main contract is null and
void, this doesnt stop the clause being effective
When is a clause exclusive? If a clause is non-exclusive it is
a submission to jurisdiction only
- It is a question of construction; the intention of the parties
and the surrounding circumstances will be looked at
- The word exclusive is not determinative
- The mutuality of the obligation - do the parties have the
same obligations and right? This is indicative of exclusivity
- Other language in clause or contract may point towards
intention of exclusivity
- Fact that court has jurisdiction anyway may assist in
determination that parties intended it to have exclusive
jurisdiction
- Large commercial / international parties will be presumed
to desire certainty and are more likely to intend exclusivity
Oceanic Sun Line
To ascertain the law applicable to any dispute, a court will
apply the lex fori, the law of the forum. Thus to ascertain
whether an exclusion clause has been incorporated into a
contract will be determined by the law of the forum
Where parties to a contract have agreed by an exclusive
foreign jurisdiction clause to submit to the exclusive
jurisdiction of a foreign court, such a clause does not
operate to exclude the local forum court's jurisdiction.
However, the court will hold the parties to their bargain, and
grant a stay of proceedings, unless the party seeking that
the proceedings be heard in the local forum can show that
there are strong reasons against doing so.

Venter v Ilona MY Ltd

Ultimately the finding of a binding exclusive jurisdiction
clause is an exercise of discretion: apply litigation facts
In favour of finding forum jurisdiction:
- If proceedings commenced between the parties remained
on foot.
- If parties awaited judgment with a decision on a point
potentially relevant to the cross claim
- The fact that there is a claim under New South Wales
legislation, (here the Compensation to Relatives Act), needs
to be taken into account
- Some of the witnesses who may be called are Australian
Against finding forum jurisdiction:
- The contract is to be construed in accordance with a
foreign law
- If it would 'split' aspects of the case by holding them in
different parts of the world
- If it would 'duplicate' elements of litigation
Irrelevant:
- Where the owners or the ship itself were registered
HELD: Proceedings stayed (Case involved a death at sea in a
work-related accident off the coast of Thailand of the chief
engineer of an Australian registered ship, and the conflict of
laws issues which arose in the subsequent tort and contract
proceedings in New South Wales)
On whether the court is a 'clearly inappropriate forum':
apply pre-litigation facts
For Clearly Inappropriate to be heard in Australia:
"The following matters point to this court as an
inappropriate forum:
(1) the contract was made in Europe;
(2) the contract is to be governed by German law;
(3) no part of the contract with MDE was to be performed in
Australia; and
(4) no part of the contract was to be, or was actually,
performed in Australia.
Against Clearly Inappropriate in Australia
The following matters advanced by Mr Sheller reduce the
significance of the matters identified in par [49] above:

(1) the accident occurred either in Thai waters or

international waters;
(2) none of the crew had any connection with Germany and
two of them live in Australia or New Zealand and speak
English;
(3) some of the work of installation was performed in
Marseilles and repair work (before the accident) was done in
Malaysia;
(4) the proceedings were brought in Australia and regularly
so;
(5) the proceedings between Mrs Venter and the Owners
were settled in Australia and the reasonableness of the
settlement may be an issue in the proceedings; and
(6) the LRA claim made against MDE would, or at least may,
need to be determined on whether the Owners and MDE
owed a duty of care to Mr and Mrs Venter under Australian
law.
HELD: Australia not a clearly inappropriate forum (irrelevant
as proceedings stayed)
Akai Pty Ltd v People's Insurance Company Ltd (1996) 188
CLR 197
Considerations of public policy in deciding whether to grant
a stay: where legislation renders void any contractual
provision attempting to evade it, courts will give effect to
this and refuse to stay proceedings
(Here an exclusive jurisdiction clause was rendered void by
s 52 of the Insurance Contracts Act 1984 (Cth)

Incitec v Alkimos: (this moved away from Eletheria)

The enforcement of an exclusive jurisdiction clause, which is
not contrary to the applicable law, will prima facie be
granted unless there are strong reasons to the contrary
Irrelevant to whether to grant a stay of proceedings:
Tactical reasons for decision

Forensic or financial inconvenience to party who

signed agreement
it is inappropriate for the forum court to enter into any
comparison between the quality of justice
administered in the forum and in the foreign country.

In favour of upholding an exclusive jurisdiction clause:

The desire of courts to hold commercial parties to their
bargain in terms of exclusive jurisdiction clauses
The desire of courts to avoid disruption and
multiplicity of litigation
Against the operation of an exclusive jurisdiction clause:
The inconvenience, if any, whether financial or other,
caused to third parties
The effect, if any, upon the due administration of
justice; and
Any other appropriate public policy consideration that
can be discerned in all the circumstances
the very existence of the possibility, if not probability,
of duplicated litigation
Global Partners Fund Limited v Babcock & Brown Limited (in
liq) and Ors [2010] NSWCA 196:
An exclusive jurisdiction clause is to be construed broadly
(i.e. given force), albeit in the particular context of the
contract in which it is contained and any interrelated
arrangements, particularly when the contract has an
international dimension as one of the main purposes of such
a clause is to ensure that all disputes are determined in a
coherent manner by the courts of a single jurisdiction
A party to an exclusive jurisdiction agreement can enlist an
Australian courts assistance to stay proceedings brought
against both it and non-parties, EG SUBSIDIARIES
arising out of or in connection with - does this include
claims at law - YES - should be construed like arbitration
clauses - clause is construed generally
A court is not a clearly inappropriate forum if there is an
exclusive jurisdiction clause submitting to that court
Bagsfirst Global v Global Brands (Football) [2010] NSWSC
988

A non-exclusive jurisdiction clause means the parties

accepted the real possibility that litigation might occur
elsewhere. In this case the only defence available is that of
forum non conveniens
Courts should be slow to decline to exercise jurisdiction that
is conferred upon them
Alstom Limited & Ors v Sirakas (No. 2) [2012] NSWSC 64
the interests of justice do not require that the plaintiffs'
civil suit be stayed because of possible criminal proceedings

Res judicata and avoiding conflicting judgments

*Telesto Investments Limited v UBS AG [2013] NSWSC 503
Res Judicata: where an action has been brought and
judgment has been entered in that action, no other
proceedings can thereafter be maintained on the same
cause of action (cant keep re-litigating the same matter)
- the earlier judgment must be final and on the merits
- A default judgment or consent judgment is still capable of
being final and conclusive on the merits
It appears to be settled that it is possible for res judicata to
arise from a foreign judgment
Issue Estoppel: The estoppel covers only those matters
which the prior judgment, decree or order necessarily
established as the legal foundation or [factual] justification
of its conclusion. These can be ascertained from examining
the reasons for judgment
Three requirements for the creation of an issue estoppel:
(1) that the same question has been decided;

(2) that the judicial decision which is said to create the

estoppel was final; and,
(3) that the parties to the judicial decision or their privies
were the same persons as the parties to the proceedings in
which the estoppel is raised or their privies.
Issue estoppel operates in regards to decisions of foreign
jurisdictions: if the issue has already been determined by a
court of competent jurisdiction, issue estoppel operates
regardless of whether the local court would regard the
reasoning of the foreign judgment as open to criticism
(UNLESS the foreign judgment in question is in the nature of
an ex parte hearing, or where the reasons for judgment, for
whatever reason, do not spell out precisely the legal and
factual grounds on which the outcome rests)
Ashun Estoppel: A question of Anshun estoppel may arise
where a matter not raised as a defence (that was SO
RELEVANT it should have been) is later raised as a cause of
action (as in Port of Melbourne Authority v Anshun Pty Ltd),
or where a matter (again, that was SO RELEVANT it should
have been) is not brought as a claim/ cross-claim in earlier
proceedings but is later raised as a cause of action = the
foundation for the doctrine is that it is UNREASONABLE for
the party to rely on such when it should have brought it up
before
Whether or not an earlier foreign judgment can found an
Anshun estoppel must depend on whether or not in the
foreign jurisdiction in which the earlier judgment was given
there exists an equivalent doctrine.
In considering Ashun estoppel, the availability of juritical
advantage in a particular jurisdiction can be considered as
to why a party did not raise the defence/ matter before
Abuse of Process: There can be an abuse of process where,
even though a plea of res judicata, cause of action or issue
estoppel is not available if, the same question having been
disposed of by one case, the litigant were to be permitted
by changing the form of the proceedings to set up the same
case again...
However, the co-existence of local and foreign proceedings
is not vexatious or oppressive (i.e. an abuse of process)
where relief is available in one forum which is not available
in the other

Australia and New Zealand Banking Group Ltd v Marks

[2013] QSC 186
It is not an abuse of process or an opportunity for the
application of res judicata if two proceedings are brought in
different courts because one does not have jurisdiction in
the other matter

FORUM NON CONVENIENS

Oceanic Sun
In rejecting Spiliada, here the HCA noted that access to
court is a right - not to be withdrawn because another forum
is more convenient favoured a clearly inappropriate
forum test
Voth
Here the majority adopted the test propounded by Deane J
in Oceanic Sun. The "clearly inappropriate forum" test
requires that the continuation of the proceedings in this
Court must be oppressive or vexatious to the defendant, or
must be an abuse of the processes of this Court in some
other way.
Majority identified four principles that need to be borne in
mind :
(1) A plaintiff who regularly invokes the jurisdiction of a
court has a prima facie right to insist on the exercise of that
jurisdiction; (this should not be given too much weight)
(2) The rationale for the exercise of the power to stay is to
avoid injustice
(3) the mere fact that the balance of convenience favours
another jurisdiction or that some other jurisdiction would
provide a more appropriate forum does not justify the
dismissal of the action or the grant of a stay.
(4) The jurisdiction to grant a stay or dismiss an action is to
be exercised with great care or extreme caution.
Vexatious or oppressive: seriously and unfairly burdensome,
prejudicial or damaging while 'vexatious' should be
understood as meaning productive of serious and
unjustified trouble and harassment (Oceanic Sun, Deane J)

Should be a balancing process D to establish that forum is

clearly inappropriate

Regie National des Usines Renault SA v Zhang [2002] HCA

10
The lex loci delicti rule applies to foreign torts it is where
the tort is committed
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.
Other relevant factors: delay, the conduct of the parties, the
usual domicile or residence of the parties, and various
matters of convenience
Puttick v Tenon [2008] HCA 54
However a foreign lex causae is still a relevant factor
James Hardie v Grigor
The need to prove a foreign lex causae can be in itself a
source of prejudice it introduces additional levels of
complexity, expense and uncertainty together with risk of
error
The public interest e.g. overburdened courts are not a
significant factor in determining FNC - remember the
general position is that if the court has jurisdiction a person
is entitled to their day in court
If there are advantages BEYOND a basic 'juritical advantage'
it may be taken into account, but there is nothing wrong
with parties looking at 'juritical advantages'

CMA CGM SA v Ship Chou Shan

A forum can be clearly inappropriate if there is no real
connection with the contested forum (e.g. the arrest of a
foreign ship in Australian waters)

Fleming v Marshall
The fact that a plaintiff is unable to get a remedy / litigate
elsewhere is not necessarily decisive - it just needs to be
evaluated along with other factors
Atlasnavios Navegacao [2012] FCA 1497
- Prima facie it is vexatious and oppressive to bring
proceedings concerning the same issues in different
countries that have jurisdiction in respect of the matter
FACTORS RELEVANT TO A FINDING OF FORUM NON
CONVENIENS:
- The nature and degree of connection between the parties
and their controversy to each jurisdiction are fundamental
factors in assessing whether the forum is clearly
inappropriate
- Which forum can provide more effectively for complete
resolution of the matters involved in the parties
controversy
- The order in which the proceedings were instituted
- The stage that each proceeding had reached and the costs
that had been incurred
- The resources of the parties, the language of each
jurisdiction and their witnesses
Studorp v Robinson
A tribunal may be a clearly inappropriate forum if you
cannot appeal on a question of fact
*** CSR v Cigna Insurance ***
With dual litigation out of the same substratum of facts, you
look at the controversy as a whole, and determine if they
are vexatious or oppressive in the Voth sense of the word
It is also significant if there are different remedies (here
there were remedies available in the US that were not
available in Aus) If one party is bringing the action in a
certain court to avoid the other availing themselves of
remedies, this is also significant and can be 'oppressive' in
the Voth sense
the power to stay proceedings on grounds of forum non
conveniens arises from the courts inherent jurisdiction

Proceedings brought for dominant purpose of preventing

party from pursuing remedies available in another court are
vexatious and oppressive
Thomson Aviation Pty Ltd v Dufresne [2011] NSWSC 864
Where a defendant seeks contribution or indemnity
(whether as a statutory right or pursuant to a contract) such
proceedings, brought by way of cross-claim, should in all but
exceptional circumstances be heard and determined at the
same time as the principal claim between plaintiff and
defendant.
Anti- Suit Injunctions

CONSIDER THIS AFTER FNC TEST - Court will look at

whether it is a clearly inappropriate forum first, then
at anti-suit injunctions. An anti-suit injunction can be
issued on request.

Requires a serious issue to be tried, and the balance of

convenience looked at

Based on historical practice of Equity and so subject to

standard equitable defences (clean hands; laches).
Also may not be granted where damages are an
adequate remedy.

NOTE: Requires the party within the jurisdiction (or can

be served outside the jurisdiction) of the issuing court

Supported by power of court to punish for contempt if

order disregarded

May be permanent or temporary, and may be issued ex

parte.

Air Bus and CSR are the leading cases

Airbus
Discretion to be exercised when ends of justice require it;
motivation is the finality of litigation
When foreign proceedings are vexatious or oppressive
Regard must be had to international comity

Jurisdiction must be exercised with caution

CSR
Stay orders and anti-suit injunctions are not governed by
the same principles, however a stay should be considered
first
It can be brought because of something unconscionable,
e.g. THE SUIT OVERSEAS IS BROUGHT IN BREACH OF AN
EXCLUSIVE JURISDICTION CLAUSE
Extends to proceedings overseas which are vexatious,
oppressive or an abuse of process. Mere co-existence of
proceedings is not enough; a party seeking anti-suit
injunction must show that there is nothing that can be
gained in the foreign proceedings over and above what is
available in local proceedings

TS Production
While the co-existence of proceedings in different countries
is not, of itself, vexatious and oppressive, it is prima facie
vexatious and oppressive for a party to commence a
second or subsequent action if an action is already pending
with respect to the matter in issue
A court that is first in time is more likely to grant an antisuit injunction to prevent a foreign court beginning
proceedings.
The general procedure is that a court cannot hear cases
about foreign immovables e.g. land
Sunland Waterfront v Prudentia Investments
A court may award an anti-suit injunction if the second
proceedings are unnecessary, unjustified or unfair
Onus is on the party claiming relief; if established, onus
shifts to other party to demonstrate legitimate reason for
bringing foreign proceedings. If party has made an election
on forum and no legitimate juridical advantage in second
forum, will be held to election

Anti Anti-Suit Injunction

This is where you order the defendant NOT to apply for

an anti-suit injunction in a foreign court: Qantas v
Rolls-Royce

Telesto
The anti anti-suit order is a factor but NOT a determinative
factor as to whether NSW or other is a clearly inappropriate
forum