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Private International Law Notes used to achieve a high distinction. Topics covered include: 1) Scope of private international law (the concept of legal issues which have a connection with more than one legal system); 2) Personal jurisdiction (including the discretionary non-exercise of jurisdiction and anti-suit injunctions); 3) Substance and procedure (with particular reference to limitation of actions and damages); 4) Proof of foreign law; 5) Exclusionary doctrines (foreign revenue and penal laws, foreign governmental interests and foreign laws contrary to forum public policy); 6) Choice of law in contract; 7) Choice of law in tort; 8) Recognition and enforcement of foreign judgments.
Personal jurisdiction (authority of a court to deal with a particular case) depends on the defendant’s location at the time of service of initiating process. o Within territorial jurisdiction of Court (common law). o Elsewhere in Australia. o New Zealand. o Rest of the World. o Voluntary submission. Common Law: Defendant Within Territorial Jurisdiction of Court Individual • Common law personal jurisdiction is established if the defendant is validly served with the court’s initiating process whilst physically present in the territory of the forum or the person voluntarily submits to jurisdiction: Gosper v Sawyer, Laurie v Carroll . • Service still valid if: o Dispute has no connection with forum: John Pfeiffer v Rogerson (2000). o Defendant entered jurisdiction so that they could be served there: Perrett v Robinson . o Presence in forum is temporary/transient: Maharanee of Baroda v Wildenstein . • Service invalid if plaintiff “tricks, fraudulently entices or physically coerces” defendant into the territory for purpose of service (unless defendant was incidentally within forum): Laurie v Carroll (1958). • Jurisdiction not established if defendant present in forum when initiating process is issued, but leaves before being served: Laurie v Carroll (1958). o Moy v Sheehan suggests substituted service might be available if defendant knew process had been issued and left to avoid service. • Mode of service: o Originating process must be personally served for Supreme Court, Industrial Relations Commission, Land and Environment Court, District Court and Dust Diseases Tribunal: UCPR r 10.20(2)(a). o Originating process may be personally served or left at defendant’s business or residential address for local court: UCPR r 10.20(2)(b). o Service of originating process according to any agreement between the parties is valid and taken to be personal service: UCPR r 10.6. Corporation • A foreign corporation that is not registered in Australia can be served if it is “present,” meaning, “carrying on business” in the forum: National Commercial Bank v Wimbornei (1979). • Must satisfy three factors (same test for website businesses: Lucasfilm): o 1) Agent in the forum has authority to make binding contracts on behalf of the company. ! Insufficient: agent without contracting authority, presence of wholly owned subsidiary (Adams v Cape Industries (1990)) or appointment of solicitor (Sunland Industries). o 2) Business is conducted at a fixed and definite place in the forum. ! Insufficient: website business that sells goods to IP users from forum and imports them to forum: Lucasfilm. o 3) Business has been conducted for a sufficiently substantial time period in the forum. ! Must be a degree of “system, continuity and repetition” – a single instance, or ad hoc instances, are insufficient: Sunland Investments. • A foreign corporation intended to carry on business in Australia must register and nominate an offence and a local agent authorised to accept service (Corporations Act 2001 (Cth) s 601CD). It can be served by: s 601CX. o 1) Leaving/posting process to registered office. o 2) Leaving/posting process to local agent’s address. o 3) If two directors reside in Australia, leaving a copy of process with each director. • An Australian registered company can be served by: o Serving a principal officer: UCPR r 10.22. o Leaving/posting process to registered office: Corporations Act 2001 (Cth) s 109X(1). o Leaving/posting process to director residing in Australia: Corporations Act 2001 (Cth) s 109X(1). o If company registered in state other than the state in which process is issued ” can serve in same ways as above pursuant to Corporations Act 2001 (Cth) s 109X(3), Service and Execution of Process Act 1992 (Cth) ss 9, 15(3). Submission to Jurisdiction • Express agreement. • 1) Express choice of court clause in the contract (a clause stating that courts of a specific jurisdiction can resolve contractual disputes): Adams v Cape Industries . o Choice of law clause is not a submission to jurisdiction of courts of that legal system: Dunbee v Gilman . • 2) Service of an agent in the forum, pursuant to an express agreement authorizing service to the agent: Howard v National Bank of NZ. • Conduct inconsistent with a protest against jurisdiction. • 1) If defendant takes positive steps, in court proceedings, which are inconsistent with a protest against jurisdiction, they have tacitly submitted to jurisdiction: Singapore Airlines, National Commercial Bank v Wimborne. o Contest/submissions on substantive claim or counter-claim. o Seeking document discovery or interview witnesses. o Consent to interlocutory orders. o Not sufficient: failure to immediately object to procedural orders or jurisdiction or rule out bringing cross-claim: NCB v Wimborne. • 2) A foreign party who brings an action submits to counter/cross-claims arising out of the same subject matter, whether or not based on the same cause of action: Marlborough Harbour Board v Charter Travel (1989) (ship sinking – includes negligence and damage to ship). o No submission to claims arising from different subject matters. o If SOC amended, changing subject matter, foreign party no longer submits to original subject matter. • 3) Entry of an appearance in a NSW Court. o May apply to set aside originating process or challenge/ request court decline jurisdiction without entering an appearance (hence, without submitting): UCPR r 12.11. • 4) Entry of an unconditional appearance in the Federal Court. o Conditional appearance to challenge jurisdiction/ request court decline jurisdiction: FCt O 9 r 6. Defendant Elsewhere in Australia • HC/FC may serve writ anywhere in Australia: FCA s 18. • Any state court’s (inc. territory: s 5) initiating process can be served in any other state: Service & Execution of Process Act 1992 (Cth) s 15(1). • Interstate service has the same effect and gives rise to the same proceedings as if service had occurred in the place of issue: s 12. • Service must be effected in the same way as service would be effected in the place process was issued (s 15(2)) and must be accompanied by notices advising defendant of rights about jurisdiction (s 16). • No requirement: leave prior to service, connection between forum territory and parties/subject-matter of proceedings. •
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