Professional Documents
Culture Documents
Private International Law Notes
Private International Law Notes
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
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.
Personal Jurisdiction
Territorial jurisdiction based on defendant's presence
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
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
s21
- 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.
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
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
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
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