Private International Law 2010

INTRODUCTION TO PRIVATE
INTERNATIONAL LAW
PR IV ATE INTER NATIONAL 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.)

0 0
 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.

0 0
 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?
o 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
o Assuming that Renault has no assets in NSW, how do you get those damages?
o Recognition or enforcement of a foreign or interstate judgment
 Hoping that a French court would enforce your interstate judgment

0 0
 Private International Law 2010

CONFLICT OF LAW

0 0
 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
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

0 0
 Private International Law 2010

o Under British law, succession to movables is determined by the

domicile of the testatrix ie France
o 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

SOURCE S 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 doesn’t try
to introduce uniform substantive laws, it tries to introduce uniform conflict of law rules.

Legislation
Most of Australia’s 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.

0 0
 Private International Law 2010

‘MULTISTATE’ OR ‘FORE IGN E LE ME NT’?

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)

E NTITIE S FOR PRIVATE INTE RNATIONAL PURPOSE S

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 INTE RNATIONAL LAW

SUBJECT MATTE R

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

OBJE CTIVE S OF PRIVATE INTE RNATIONAL LAW

Why does a court ever apply a foreign law – why not simply apply the lex fori? What is the policy/theory
underpinning PIL?

0 0
 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 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.

INTE RNATIONAL 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.

0 0
 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.

FEATURE S OF PRIVATE INTE RNATIONAL 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

0 0
 Private International Law 2010

JURISDICTION
INTR ODUCTION

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

JURISD ICTION AT COMMON 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
o Alternative forum might be harder on the defendant (assuming the alternative forum has
jurisdiction)
o Where the defendant can counterclaim

10

0 0
 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 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 PROCED URE PROC E SS (TW O STAGE S)

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

11

0 0
 Private International Law 2010

o If L left Australia knowing C would sue, would fall within the court’s 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

TE RRITORIALITY – PRE SE NCE W ITHIN JURI SD ICTION

The basic rule by which a court’s jurisdiction is established at common law is that the defendant must be
amenable to the court’s initiating process. It does not matter that the defendant’s 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 court’s jurisdiction.

Similar principles apply in personal actions against a company. The company must have some presence inside
the forum’s 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 didn’t 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 – D E FEND ANT VOLUNTARILY SUBMITS

1. Submission by agreement
o Forum clause – constitutes a voluntary submission to the jurisdiction of the forum’ s 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

0 0
 Private International Law 2010

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
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
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

13

0 0
 Private International Law 2010

 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.

JURISD ICTION IN INTE RSTATE CASE S

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 E XE CUTION OF PROCE SS 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

0 0
 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.

JURISD ICTION OF COUR TS (CROSS -VE STING) ACT 1987 (CTH)

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 cross-
vested 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.

JURISD ICTION IN INTE RNATIONAL CASES

This is where the defendant is outside Australia. Under common law, a court has no jurisdiction as the
defendant is not within the court’s 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

0 0
 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.

GROUND S 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

16

0 0
 Private International Law 2010

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
3. 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

17

0 0
 Private International Law 2010

o If it was negligently manufactured outside Australia, don’t have jurisdiction about negligent
manufacture
o 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 defendant’s 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 [1 960]

 Dispute about stamp duty in relation to property

18

0 0
 Private International Law 2010

 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 OUTSID E AUST RA LIA AND LE AVE TO PROCE E D

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

19

0 0
 Private International Law 2010

 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

20

0 0
 Private International Law 2010

JURISDICTION II
R EV IE W

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 jurisdiction’s 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

INTER NATIONAL AND IN TER STATE JUR ISDICTION

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 O N JURISD ICTION

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.

FORE IGN IMMOVABLE S

BRITISH SOUTH AFRICAN COMPANY V COMPANHIA DE MOÇAMBIQUE [1893]

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

21

0 0
 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 person’s title to land outside the forum state or a person’s 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
o 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
o 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
o 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 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

22

0 0
 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
o Both brothers were residents of WA
o 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)
o 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
o B argued Mozambique principle
 Held
o The court narrowly construed the Mozambique principle
o 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 A’s interests
 The order against the wife and daughter in Australia not to do something in
Australia
o Can restrain Australian resident from dealing with property in Malaysia

23

0 0
 Private International Law 2010

o If the matter is simply about a personal obligation, they will not construe this as falling within
the Mozambique principle
o At CL there is still this exception

FORE IGN 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

D IPLOMATIC 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 D INGS

1. Restraints the forum court places on itself

o International cases – by a stay or dismissal of proceedings
o Interstate cases – by a transfer or stay of proceedings
2. 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
 Don’t 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

0 0
 Private International Law 2010

RESTRAINTS THE FORUM COURT PLACE S 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
o 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 plaintiff’s
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 court’s 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 CONVENIE NS

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
o In Australia, approach to tort is lex loci delicti
o Only one factor amongst many and is not determinative
o If the law of the cause is a foreign jurisdiction, this can be taken into account

25

0 0
 Private International Law 2010

 Legitimate jurisdictional advantage eg longer limitation period

o If the reason doesn’t 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
o P took action against Missouri accountant
o D had given a subsidiary of P some advice about tax that was negligent
o Because of that negligence, a subsidiary of P suffered tax penalty which resulted in them
losing certain tax rights in Australia
o P’s subsidiary company was a Kansas company, and D was in Missouri – nothing to do with
Australia
o To the extent that P had suffered some loss in Australia, the NSW court said they had
jurisdiction
 D said they are not the most appropriate forum

26

0 0
 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
o 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 court’s process
 On its face, no different from Geelong Harbour Trust
 But also brought revision of court’s 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
forum’s 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 P’s 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 that…a 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

0 0
 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.

PROCE DURE

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 LJ’s 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 LJ’s
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

0 0
 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 court’s 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 CLAUSE S

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 Persuasive
2. 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
o Eg ‘disputes under this contract are to be referred only to the Supreme Court of Queensland)
o Even when the clause is exclusive, an Aus court will not necessarily use that as a basis for
forum non conveniens
o Highly persuasive but not necessarily binding on the court
 Simply becomes one of a number of factors

29

0 0
 Private International Law 2010

o 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 well -
drafted 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 F AY

 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
o Whether the law of the forum is to apply (choice of law clause?)
o Connection of parties and degree of connection
o Merely seeking procedural advantage
o 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
o Crane brought over in pieces by ship, assembled and used in Victoria
 Place where operator sits fell off and killed three people
o Part of action was breach of contract
o Clause in contract said ‘in case of litigation…the only competent court was the Commercial
Court of Lyon’

30

0 0
 Private International Law 2010

o Relative convenience and expense (particularly of witnesses and evidence’

o P commenced action in Victoria
 Held
o Hudson J held that it was for more than a balance of convenience that the proceedings be
tried in Victoria than France
o 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
o 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
o 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 doesn’t 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-E XCLUSIVE JURISDICTION CLAUSE S

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 People’s Insurance Co Ltd. A non-exclusive jurisdiction clause is not as strong an argument as an

31

0 0
 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 PLACE S ON LITIGANTS IN ANOTHE R COURT

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

0 0
 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)
o In July 1995, Cigna Aus commenced proceedings against both CSR’s 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
 Granted by Rolfe J in August 10, 2010
o CSR companies then applied for stay of NSW proceedings on ground of forum non conveniens
 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
o 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

0 0
 Private International Law 2010

o 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
o 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 anti-
suit 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: Société Nationale
Industrielle Aerospatiale v Lee Kui Jak (per Goff LJ). It rests on the idea of ‘comity’ – the forum court’s
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

0 0
 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 court’s 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 Lloyd’s 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 Lloyd’s 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
o 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

0 0
 Private International Law 2010

CHOICE OF LAW METHOD I

INTR ODUCTION

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 Doesn’t 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

0 0
 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 PROCE SS

1. Identification of a conflict of laws

o Identification of the possibility that a foreign body of law might apply
2. 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. The classification of substantive or procedural law
o Procedural laws are lex fori
o Substantive laws may be foreign laws
4. Identification of choice of law rule
o What is the Australian rule that tells you whether to accept the foreign law
5. Application of the law of the cause
o At the end of the process work out whether the plaintiff will succeed on the matter

IDE NTIFICATION 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 doesn’t
matter which law is applied.

This question can only be answered after considering two subordinate issues:

37

0 0
 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 RELE VANT SYSTE MS

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 LAW S

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

0 0
 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 TH E SUBJE CT MATTE R

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

39

0 0
 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

Claim (restitution) Defence (priorities)

Classification Breach of trust Property
Choice of law rule Law of place where breach occurred Law of place where property is situated
(lex situs)
Law of cause England New York
Outcome Macmillan recovers Macmillan fails

 Held
o P argued the court should classify the matter according to the issues P raises
 This argument was rejected
o 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
o Classification is a matter of the lex fori

The classification is by reference to the forum’s classifications. However, classification of property as movable
or immovable is usually classified according to the law of situs.

APT V APT [1974] P 1 27

 Marriage of wife (in England) by proxy in Argentina

 Classification if issue as either
o Formal validity of marriage (Argentina – valid)
o 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
 Was the person who conducted the marriage qualified

40

0 0
 Private International Law 2010

 Were the witnesses appropriate

o Essential validity – ability as an individual to marry
 This isn’t about the capacity to marry, it is about the process of being married
o 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
o 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 PROCED U 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 court’s 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

0 0
 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
o Procedure is only the rules that govern a case
o Anything that governs rights and duties is substantive
o 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

0 0
 Private International Law 2010

o 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
Territory’s 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.

IDE NTIFICATION 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 won’t
take this into account because it is a matter of procedure. However, the law about sister-in-laws is substantive.

43

0 0
 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

0 0
 Private International Law 2010

CHOICE OF LAW METHOD II

INTR ODUCTION

FIVE STEP PROCE SS

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

 Dépeçage
 The incidental question
 Renvoi
 Exclusion of unacceptable laws

D ÉPE ÇAGE

Dépeçage 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. Dépeçage 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

0 0
 Private International Law 2010

 Form of dépeçage
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 INCIDE NTAL QUE STION

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
o Both Jewish and had to flee Hungary and decided to go to Israel after the war
o 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
o Both arrived separately in Israel and became domiciled in Israel
o Some stage later, U travelled to Canada and meets and marries S
o 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 la w
of Israel

46

0 0
 Private International Law 2010

o Was the divorce by ‘Gett’ effective?

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

o The Court of Appeal disagreed with the lower court

47

0 0
 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
o 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
o 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 testator’s personal law, and therefore
that the children of the second marriage were entitled to share in the movable
property
o Main question was whether the children of the second marriage were entitled to share in the
testator’s movable property

48

0 0
 Private International Law 2010

 Governed by the law of the place where the testator was domiciled at the time of his
death
o Preliminary question was the validity of the children as legitimate children and the marriage
entered into
 This question was incidental to the succession question
o 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
o Towards the end of his life he moves to Belgium and dies there
o R left will and number of codicils within will (adds/detracts from will)
o 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
o If English law, codicils valid
o If Belgian law, codicils invalid

49

0 0
 Private International Law 2010

 Held
o Recognised conflict of laws
 Look at choice of law rules to resolve
 Also look at Belgium’s 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 Domicile at death was Belgium
 England’s choice of law rule is the law of the domicile at his death
o 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 Belgium’s internal laws about codicils but Belgium’s choice of law
rules
 This is where there is a conflict of conflict of law rules

SOLUTION 1: IGNORE THE RE NVOI

Ignoring the renvoi means the forum’s 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

0 0
 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 Belgium’s 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 forum’s laws are applied ie England
would have recognised Beglian law was the same.

SOLUTION 2: D É SISTE ME NT

The foreign law, according to its own terms, does not give an answer. Accordingly, the forum’s choice of law
rule has not identified an appropriate law of the cause, and the forum’s choice of law method fails. Therefore
the forum’s internal law is applied by default. This theory is the same as ignoring the renvoi if it arises.

In Collier v Rivaz England’s 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 doesn’t give an answer. This is actually simply
recognising the conflict of conflict of law rules. Assume this jurisdiction doesn’t 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 désistement, a forum would
actually look at the choice of law rules of the other jurisdiction.

SOLUTION 3: ACCE PT THE RE NVOI (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 country’s choice of law rules be considered.

REMISSION

The forum court refers the question to the foreign forum’s 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

0 0
 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 Belgium’s 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
court’s transmission and applies the internal law of the third forum as the law of the cause.

SOLUTION 4: RE JE CT THE RE NVOI

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 country’s laws, the forum court rejects the
transmission and applies the law of the foreign forum.

52

0 0
 Private International Law 2010

SOLUTION 5: FORE IGN COURT THE ORY (D OUBLE RE NVOI)

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 jurisdiction’s 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
o Vic company had contract for work to be done in China
o N and husband go to China and Vic company have provided flat which has a staircase with no
banisters

53

0 0
 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
o Limitation period in China expired so brings actions against husband’s employer in WA
 Held
o More than 1 jurisdiction involved – WA and China
o This is a matter of tort – lex loci delicti
 China’s law will apply – if there is no difference just apply WA law because there is
no conflict of laws
o 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
o China’s 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
o 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 doesn’t give a proper answer

54

0 0
 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
o Testatrix died in France in 1924 leaving a will disposing of her movable property
o British subject domiciled in France at the time of her death
o British internal law (dispositive rule) – will was valid

55

0 0
 Private International Law 2010

o 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 testatrix’s children
o Conflict of internal rules
o English choice of law rule
 Succession of movables determined by law of the place where the deceased was
domiciled at time of death
o French choice of law rule
 Succession of movables determined by law of the place where deceased was a
national at the time of death
o Choice of law rules for succession to property in England different to France
o 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 France’s 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
o English national leaves will which is contested
o Deceased domiciled in Italy

56

0 0
 Private International Law 2010

 In Italy, have to leave half of property to son

 Held
o English court adopted double renvoi theory
o Italian court would apply its internal rule and choice of law rule as well
o 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 deceased’s 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 RE NVOI

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.

E XCLUSION OF UNACCEP TABLE LAWS

 Unrecognised states
 Penal laws
 Revenue laws
 Expropriation laws
 Foreign governmental interests
 Public policy

57

0 0
 Private International Law 2010

FORE IGN GOVE RNME NTAL INTERE STS

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 wouldn’t be applied

58

0 0
 Private International Law 2010

o 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 FORE IGN 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 IDE NTITY

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
weren’t 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

0 0
 Private International Law 2010

PERSONAL CONNECTING FACTORS

INTR ODUCTION

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 – Common law –

personal law territorialism
Evolved from Only
Roman law to connecting
become factor was
connecting presence
factor 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 doesn’t matter who they are. However, for certain private
purposes, the fact you are Australian doesn’t mean you have forgone this body of law.

PER SONAL CONNE CTING FACTOR S

 Domicile
 Citizenship (or nationality)
 Residence

RELATIVE CONCE PTS

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

0 0
 Private International Law 2010

CHOICE OF LAW METHOD I

INTR ODUCTION

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 Doesn’t 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

0 0
 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

0 0
 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 PROCE SS

1. Identification of a conflict of laws

o Identification of the possibility that a foreign body of law might apply
2. 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. The classification of substantive or procedural law
o Procedural laws are lex fori
o Substantive laws may be foreign laws
4. Identification of choice of law rule
o What is the Australian rule that tells you whether to accept the foreign law
5. Application of the law of the cause
o At the end of the process work out whether the plaintiff will succeed on the matter

IDE NTIFICATION 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 doesn’t
matter which law is applied.

This question can only be answered after considering two subordinate issues:

37 0 0
 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.
0 This0 process merely eliminates the need to consider laws
that are on any view irrelevant.
THE INTERNAL RULES OF THE POSSIBLY RELE VANT SYSTE MS

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 LAW S

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

0 0
 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 TH E SUBJE CT MATTE R

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 0 the classification
0 (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
o English judge immediately recognised there was a conflict of laws issue because the shares
are in companies in New York

39

0 0
 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

Claim (restitution) Defence (priorities)

Classification Breach of trust Property
Choice of law rule Law of place where breach occurred Law of place where property is situated
(lex situs)
Law of cause England New York
Outcome Macmillan recovers Macmillan fails

 Held
o P argued the court should classify the matter according to the issues P raises
 This argument was rejected
o 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
o Classification is a matter of the lex fori

The classification is by reference to the forum’s classifications. However, classification of property as movable
or immovable is usually classified according to the law of situs.

APT V APT [1974] P 1 27

 Marriage of wife (in England) by proxy in Argentina

 Classification if issue as either
0 0
o Formal validity of marriage (Argentina – valid)
o 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
 Was the person who conducted the marriage qualified

40

Private International Law 2010

 Were the witnesses appropriate

o 0 individual
Essential validity – ability as an 0 to marry
 This isn’t about the capacity to marry, it is about the process of being married
 o 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
o 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 PROCED U 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 court’s 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

0 0
 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
0 0
 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
o Procedure is only the rules that govern a case
o Anything that governs rights and duties is substantive
o 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

0 0
 Private International Law 2010

o 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
Territory’s 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.

IDE NTIFICATION 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 0 the lex
0 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 won’t
take this into account because it is a matter of procedure. However, the law about sister-in-laws is substantive.

43

0 0
 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.

0 0
 44

Private International Law 2010

CHOICE OF LAW METHOD II

INTR ODUCTION

0 0
FIVE STEP PROCE SS

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

 Dépeçage
 The incidental question
 Renvoi
 Exclusion of unacceptable laws

D ÉPE ÇAGE

Dépeçage 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. Dépeçage 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

0 0
 Private International Law 2010

 Form of dépeçage
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 INCIDE NTAL QUE STION

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

0 0
 Facts
o U born in Hungary (domicile of origin) and married W in Hungary
o Both Jewish and had to flee Hungary and decided to go to Israel after the war
o 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
o Both arrived separately in Israel and became domiciled in Israel
o Some stage later, U travelled to Canada and meets and marries S
o 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 la w
of Israel

46

0 0
 Private International Law 2010

o Was the divorce by ‘Gett’ effective?

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

0 0
 o The Court of Appeal disagreed with the lower court

47

Private International Law 2010

0 0
 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
o 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
o 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 testator’s personal law, and therefore
that the children of the second marriage were entitled to share in the movable
property
o Main question was whether the children of the second marriage were entitled to share in the
testator’s movable property

48

0 0
 Private International Law 2010

 Governed by the law of the place where the testator was domiciled at the time of his
death
o Preliminary question was the validity of the children as legitimate children and the marriage
entered into
 This question was incidental to the succession question
o 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. 0 0

 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
o Towards the end of his life he moves to Belgium and dies there
o R left will and number of codicils within will (adds/detracts from will)
o 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
o If English law, codicils valid
o If Belgian law, codicils invalid

49

0 0
 Private International Law 2010

 Held
o Recognised conflict of laws
 Look at choice of law rules to resolve
 Also look at Belgium’s 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 Domicile at death was Belgium
 England’s choice of law rule is the law of the domicile at his death
o 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
0 0
only deal with Belgium’s internal laws about codicils but Belgium’s choice of law
rules
  This is where there is a conflict of conflict of law rules

SOLUTION 1: IGNORE THE RE NVOI

Ignoring the renvoi means the forum’s 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

0 0
 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 Belgium’s 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 forum’s laws are applied ie England
would have recognised Beglian law was the same.

SOLUTION 2: D É SISTE ME NT

The foreign law, according to its own terms, does not give an answer. Accordingly, the forum’s choice of law
rule has not identified an appropriate law of the cause, and the forum’s choice of law method fails. Therefore
the forum’s internal law is applied by default. This theory is the same as ignoring the renvoi if it arises.

In Collier v Rivaz England’s 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 doesn’t give an answer. This is actually simply
recognising the conflict of conflict of law rules. Assume this jurisdiction doesn’t 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 désistement, a forum would
actually look at the choice of law rules of the other jurisdiction.

SOLUTION 3: ACCE PT THE RE NVOI (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 country’s choice of law rules be considered.

REMISSION

The forum court refers the question to the foreign forum’s 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.
0 0
51

Private International Law 2010

0 0
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 Belgium’s 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
court’s transmission and applies the internal law of the third forum as the law of the cause.

SOLUTION 4: RE JE CT THE RE NVOI

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 country’s laws, the forum court rejects the
transmission and applies the law of the foreign forum.

52

0 0
 Private International Law 2010

SOLUTION 5: FORE IGN COURT THE ORY (D OUBLE RE NVOI)

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 jurisdiction’s attitude to renvoi.

0 0
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
o Vic company had contract for work to be done in China
o N and husband go to China and Vic company have provided flat which has a staircase with no
banisters

53

0 0
 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
o Limitation period in China expired so brings actions against husband’s employer in WA
 Held
o More than 1 jurisdiction involved – WA and China
o This is a matter of tort – lex loci delicti
 China’s law will apply – if there is no difference just apply WA law because there is
no conflict of laws
o 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
o China’s 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
o 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

0 0
 Ultimately the party that was going to pay was the NSW insurer
 Giving effect to Chinese choice of law rules doesn’t give a proper answer

54

0 0

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
o Testatrix died in France in 1924 leaving a will disposing of her movable property
o British subject domiciled in France at the time of her death
o British internal law (dispositive rule) – will was valid

55
0 0
 Private International Law 2010

o 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 testatrix’s children
o Conflict of internal rules
o English choice of law rule
 Succession of movables determined by law of the place where the deceased was
domiciled at time of death
o French choice of law rule
 Succession of movables determined by law of the place where deceased was a
national at the time0of death
0

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

 o 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 France’s 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
o English national leaves will which is contested
o Deceased domiciled in Italy

56

0 0
 Private International Law 2010

 In Italy, have to leave half of property to son

 Held
o English court adopted double renvoi theory
o Italian court would apply its internal rule and choice of law rule as well
o 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 deceased’s 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
0 0
 In many of these cases have an English court applying a foreign choice of law rule which refers you to
nationality
SHORTCOMINGS OF DOUBLE RE NVOI

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.

E XCLUSION OF UNACCEP TABLE LAWS

 Unrecognised states
 Penal laws
 Revenue laws
 Expropriation laws
 Foreign governmental interests
 Public policy

57

0 0
 Private International Law 2010

FORE IGN GOVE RNME NTAL INTERE STS

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
0 0
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 wouldn’t be applied

58

Private International Law 2010

o 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
0 0
PROOF OF FORE IGN 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 IDE NTITY

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
weren’t 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

0 0
 Private International Law 2010

PERSONAL CONNECTING FACTORS

INTR ODUCTION

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 – Common law –

personal law territorialism
Evolved from Only
Roman law to connecting
become factor was
connecting presence
factor 0 0
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 doesn’t matter who they are. However, for certain private
purposes, the fact you are Australian doesn’t mean you have forgone this body of law.

PER SONAL CONNE CTING FACTOR S

 Domicile
 Citizenship (or nationality)
 Residence

RELATIVE CONCE PTS

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

0 0
 Private International Law 2010

D OMICILE

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 didn’t acquire permanent or
indefinite presence in any one state
 For purposes of State legislation, the court said that if can’t 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’

D OMICILE OF ORIGIN

A person’s domicile of origin is ascribed at birth. The common law rule is that a legitimate child takes father’s
domicile at time of birth, and an illegitimate child takes mother’s. 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
0 0
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 didn’t 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

0 0
 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 won’t pursue him
 Never acquires domicile of choice
o Question whether the son was legitimate or illegitimate
 Depends on the domicile of the father
 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
o Simply applied domicile of origin – revived
 Scottish law would determine whether the child was legitimate

D OMICILE OF DE PE ND EN CE

Where a person does not have the legal capacity to acquire a domicile of choice, that person’s 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 husband’s: 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 parent’s, even after majority is reached.

D OMICILE OF CHOICE

Domicile of choice requires two factors:

1. Presence (or factum)

2. Intention (or animus manendi)

PRESE NCE

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.

0 0

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
0 0
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 don’t 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 didn’t
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

0 0
 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 won’t 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

REFUGE ES/TE MPORARY RE SIDENTS/ILLE GAL RE SIDENTS

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 don’t intend to retu rn.
Common law only requires presence and intention, doesn’t say anything about illegality. However the fact that
at common law one can acquire a domicile doesn’t affect your public law obligations as an illegal immigrant.
0 0
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

CITIZE NSHIP

 Australian citizenship
 Foreign citizenship (as recognised by Australian law)
 Dual citizenship

AUSTRALIAN CITIZE NSH IP

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

0 0
 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

FORE IGN CITIZE NSHIP

WHEN WILL AUSTRALIAN LAW RE COGNISE 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
o At the time they took out Australian citizenship in oath was requirement that renounce
0 0
allegiance to foreign country
 Under Australian law, foreign national cannot stand for Parliament
 o Laws of Greece/Switzerland allowed them to only renounce their citizenship based on
application
 Neither of these candidates had done that

65

Private International Law 2010

 Held 0 0
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
o There are circumstances where it might not be possible to renounce their citizenship
o If there are no reasonable steps to renounce, even if foreign country recognises Australia will
not

RESIDE NCE

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 person’s 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 man’s 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

0 0
 Private International Law 2010

STATUTE AND THE CHOICE OF LAW

METHOD
INTR ODUCTION

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.
0 0
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 FOR UM

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 forum’s 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

MAND ATORY 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

0 0
 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
o One party was trying to obtain the agent’s fees from the sale of land from another party
o 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
o 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 PEOPL E’S 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
0 0
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 LE GISLATE D LOCALISING RULE S

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 parliament’s
legislative power
 Evatt J effectively suggested the same

68

0 0
 Private International Law 2010

o 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 E XPLICIT 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
o Resident in Vic, employer was a Vic company, employment contract entered into in Vic and
governed by Vic law
o 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
o Assumed Vic Parliament didn’t intend to operate outside Vic
o Even though the forum might be Vic, Vic would not necessarily apply its statute to a death
that occurred outside its jurisdiction
o Interpreting the intention of parliament to have within the statute a localising rule
o Choice of law rule embedded in the statute was that worker’s compensation would be the
applicable law only when the death occurred in Victoria
o Merely localising the statutes

LOCALISING BY CHOICE OF LAW RUL E S

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. 0 0
 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
o Holders of debentures lived in Melbourne and London
0 0
o 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 company’s obligation to pay the full sum
o 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
o 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
o 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
o 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
o 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 won’t 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
shouldn’t 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
o 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
o Argument that through the oath statute contained a mandatory rule that overrode the
common law rule

70

0 0
 Private International Law 2010

3. More than one contract

D EPE ÇAGE

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 BANKER’S 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
o Within insurance contract, security term that required property to be under surveillance for
24 hours
o 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

0 0
 Private International Law 2010

FOR MATION AND PER FOR MANCE

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

GE NE RAL PRINCIPLE S

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 LLOY D’S 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
o If they are substantive and result is K, should have been in writing, what jurisdiction do we
refer to?
 Expressly chosen jurisdiction of the parties or objectively determined by the court

122

0 0
 Private International Law 2010

 Consideration - objectively determined putative proper law

 Reality of consent – uncertain but likely to be putative proper law

PERFORMANCE

GE NE RAL PRINCIPLE S

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 Compañia Naviera Sota y Aznar.

RALLI BROS V COMPAÑIA NAVIERA SOTA Y AZNAR [1920] 2 KB 287

 Facts
o The forum was England
o The proper law of the contract was English
o 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 depeçage
 Contract will be governed by the law of England, but the extent of
performance’s illegality will be determined by the place of performance
o If this is the case, have 2 proper laws of contract
o 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

0 0
 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
o The contract is illegal in the place of performance
 Toprak v Finagrain [1979] 2 Lloyd’s Rep 98, 114
 Euro-Diam Ltd v Bathurst [QB] 1, 14

SPE CIFIC CONTR ACTS

 Carriage of Goods by Sea Act 1991 (Cth)

 Insurance Contracts Act 1984 (Cth)
 Sale of Goods (Vienna Conventions) Acts
 Trade Practices Act 1974 (Cth)

R EFORM

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

0 0
 Private International Law 2010

TORT
INTR ODUCTION

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.

R ULE OF JUSTICIABILITY OR CHOICE OF LAW R ULE?

ANDERSON V ERIC ANDERSON RADIO & TV PTY LTD (1965) 114 CLR 20

 Australia – justiciability
 Approach initially to say these were threshold issues
o Then the action would be available in Australia – matter of justiciability
o Hadn’t 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
o 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
o 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
 Where so many factors connect it with 1 jurisdiction not the other

125

0 0
 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
o Passenger wants to sue the driver in negligence
o Ontario had a statute which prevented passengers from cars suing drivers
 ‘Guest’ statute – voluntarily went into vehicle and couldn’t sue
o If applied lex loci delicti, P would not have succeeded in NY
o 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
o 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 Don’t have to satisfy law of forum and lex loci delicti, only lex loci delciti

126

0 0
 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’
o 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’
o 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

0 0
 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
o 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

TOR TS AND R ENV OI

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

0 0
 Private International Law 2010

o 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 don’t
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
 Doesn’t come close to addressing lex loci delicti
o Rejected as
 Undermining territoriality, predictability, and simplicity – Mortensen
o Certainly undermined by the fact that relying on a foreign body of law’s choice of
law rules and you don’t 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
o Equivocal by Gray
o Support by Mortensen
o 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 DELICTI CHOICE OF LAW R ULE

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

0 0
 Private International Law 2010

 Indemnities?
 Contractual defences to tort actions?

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
o 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 SPE CIFIC ISSUE S

SURVIVAL OF ACTIONS & W RONGFUL DE ATH

130

0 0
 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 DE ATH

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

INTE RSPOUSAL IMMUNIT Y

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

IND E MNITY

SWEEDMAN V TRANSPORT ACCIDENT COMMISSION [2006] HCA 8

NSW resident

Victorian
resident

131

0 0
 Private International Law 2010

 Facts
o Particularly problematic where no fault compensation schemes
o NSW resident injured a Vic resident in NSW
o Vic resident in Vic decides to claim compensation from no fault comp scheme under Vic
legislation
o 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
o NSW resident responsible for paying not b/c of lex loci delicti, but domicile of claimant
requires him to do so

CONTRACTUAL DE FE NCES 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 can’t 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

0 0
 Private International Law 2010

PRIVATE INTERNATIONAL LAW

133

0 0