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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 court’s 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 o 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? o This question is naturally only important if application of the forum’s 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.)
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.
CONFLICT OF LAW
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 o 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 o Therefore there is no conflict – no problem o However, French law will only deal with 1/3 of the property Substantive law of England differs from substantive law of France o 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
‘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 state’s 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 nation’s 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?
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 plaintiff’s 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 country’s or state’s law will produce a more just outcome than application of the forum’s.
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 won’t 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.
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 Very narrow jurisdiction, but nevertheless continues to exist in Australia 2. Jurisdiction in interstate cases o Defendant is in another state or territory o Special rules about Australia and the legal systems within Australia 3. Jurisdiction in international cases o Defendant is outside Australia
JURISDICTION AT COMM ON LAW
- 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.
- 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 o Alternative forum might be harder on the defendant (assuming the alternative forum has jurisdiction) o Where the defendant can counterclaim
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 doesn’t 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 o However, if left when knowing of writ or to avoid service, then jurisdiction is perfected o Defendant tagged on flight between Texas and Tennessee when travelling through Arkansas airspace: Grace v Macarthur o 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 court’s 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 o Contractual dispute about moneys to come out of a theatrical performance o C decided to sue L for some of the proceeds that should have come out of this contract o C gets writ issued in Melbourne but discovers that L left Melbourne the day before the writ was issued and went to Sydney o L subsequently discovers he is going to be sued by C and before anything can happen he goes back to the UK o Writ issued on 14 June but never served on L o 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) o Thus when the writ was issued, the court had no jurisdiction over L o The court refused substituted service If D isn’t within the jurisdiction when the writ is issued, can’t serve writ
o If not expressly stated in terms of contract, unlikely that it can otherwise be inferred o 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 o Also distinguished from an arbitration clause, in which disputes referred to arbitration in the forum
- 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
- Appearance o Clearest expression of submission to jurisdiction is the entry by the defendant of an unconditional appearance in response to the originating process o A person who does not intend to submit to the court’s jurisdiction has two alternative courses Person served may refuse to enter an appearance Can enter conditional appearance (except NSW and SA) o Person who actively challenges jurisdiction must act consistently with protest against jurisdiction Tacit concession of court’s right to hear and determine the merits of the plaintiff’s 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 don’t accept the court’s jurisdiction.) If you appear and do something with that challenge eg raise substantive issues, then you’ve 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 court’s 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
Defendant’s lawyer makes oral submissions on the merits: Boyle v Sacker Defendant makes a counterclaim on a ground related to the plaintiff’s 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.
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 o 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 o 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 Doesn’t mean that every part of the breach occurs in Australia, but the breach alleged must occur in Australia o This can occur even if the contract is made somewhere else o Most common is failure to pay o 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
forum, and therefore the court’s 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’ doesn’t 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 o The tort was failure to inform about the risk of thalidomide: Distillers Co v Thompson o Agar v Hyde (2000) 201 CLR 552 o 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 o 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 o 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 o Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491 o Dow Jones & Co Inc v Gutnick (2002 10 CLR 575 at 622 o These lead to the possibility that jurisdiction exercised only on the basis of the plaintiff’s residence
DISTILLERS CO V THOMPSON (1971)
Court required to determine o Whether alleged wrong constitutes a ‘tort’; and o Whether occurred to a sufficient degree in the forum The tort was failure to inform about the risk of thalidomide
Stamp duty merely personal debt, couldn’t 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 won’t be granted where it is evident that the plaintiff won’t succeed, either because it is unlikely they will make out the claim or the defendant has a good defence. If don’t 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 o That the claim had insufficient prospects of success o That the claims were not of a kind set out in the grounds of jurisdiction in r 124 o 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 P’s who suffered injuries because of scrums collapsing IRFB failed to property scrutinize the way rules about scrimmaging had been applied
Damages suffered in Australia due to negligence of IRB (outside Australia) o P really has burden that the court is not a forum non conveniens o This forum is an appropriate forum to hear this dispute o 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 o 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 – couldn’t see on information before it that duty and breach could be proved o Heads of damages themselves are not sufficient – they are a precondition but still have to satisfy other requirements o Limits possible exorbitant jurisdiction of Australian courts o 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 plaintiff’s failure at trial merely be likely or probable
