Private International Law Notes

Private International Law
INTRODUCTION TO PRIVATE INTERNATIONAL LAW

PRIVATE INTERNATIONAL LAW
Private international law is the body of principles, rules, and at times, policies that indicate
how a foreign element in a legal problem or dispute should be dealt with
Mortensen 2008
The common law has traditionally classified multi-state cases as giving rise to one or more of
three different issues:
1. Jurisdiction
o Whether the local court, or forum, has the power to hear and determine the
case, or whether the contacts the case has with another state or country limit or
otherwise restrain the forum courts 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 forums law is
likely to give a different result to the application of the foreign law that is,
where there is a conflict of laws
real property in
Brisbane
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.)
real property in Indonesia
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.
QLD
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.
JURISDICTI
ON
2
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.
Part justification (policy)

was elimination of forum
shipping
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
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Will judgment be
enforced?
Recognition or enforcement
of a foreign or interstate
judgment
CONFLICT
LAW that resolves dispute
OF LAW
Private international law is not just about a conflict of substantive laws, but also about a
conflict between different States conflict of law rules ie a conflict of conflict of laws.
PRIVATE
INTERNATIONAL
LAW rules of
choice of law eg.
lex loci delecti
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
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
SOURCES OF PIL
Nielson v Overseas Projects Corp

of Victoria (2005) 221 ALR 213
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
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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
The main source of choice of law rules in Australia remains the common law.
decisions
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 doesnt try to introduce uniform
substantive laws, it tries to introduce uniform conflict of law rules.
Legislation
Most of Australias 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.
MULTISTATE OR FOREIGN ELEMENT?

A conflict of laws may be State (as in nation State/country) or State (as in constituent
element of nations State Queensland, California, British Columbia). It is the existence of a
conflict of laws which calls into question the scope of PIL. Conflict of laws is conflict
between two bodies of law. There is no question of the government acting unless they are
acting in a private capacity.
It may apply between:
Two nation states (Australia and France) OR

Two constituent components (NSW and Qld or Qld and California) OR
Between a nation state and another nation states constituent component (Australia and
Quebec)
ENTITIES FOR PRIVATE INTERNATIONAL PURPOSES

Australian constitutional powers federal includes: corporations, insurance, insolvency and
marriage eg Federal Marriage Act 1961. However, in the US/Canada, marriage is a state
power. There can be a conflict between Federal law and eg Californian law.
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Australian common law no conflict possible between States. In interstate cases, the doctrine
limits the choice of law method to cases where at least one of the contending laws is of
statutory origin. States modify common law eg Civil Liability Act 2003 (Qld). There is
conflict only if on a particular matter there is a conflict between, eg a WA statute and Qld
statute; WA statute and common law; common law and Qld statute.
PRIVATE AND PUBLIC INTERNATIONAL LAW
SUBJECT MATTER
Public international law the public law eg nation state, human rights, international crime.
Private international law the private law eg obligations (contract, tort and restitution),
property (holding, transfer, succession), persons (family law, corporations law, insolvency
status), not crime, government or administration.
SOURCE
Public international law conventional (treaty) and customary international law (practice of
nations).
Private international law the individual nations municipal law (Federal or State), though
some unification through international treaties eg Hague Convention on Exclusive Choice of
Court Agreements
OBJECTIVES OF PRIVATE INTERNATIONAL LAW
Why does a court ever apply a foreign law why not simply apply the lex fori? What is the
policy/theory underpinning PIL?
Reasonable
expectations of the
parties
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
plaintiffs 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 countrys or states law will produce a more just outcome than application of the
forums.
INTERNATIONAL AND INTERSTATE 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 wont 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.
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.
FEATURES OF PRIVATE INTERNATIONAL LAW
1.
2.
3.
4.
The consequences of globalization multistate legal problems are increasingly common

It is inherently and historically complex, with debated theoretical underpinnings
Its rules, as common law rules supplemented with legislative provisions, are in flux
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
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JURISDICTION
INTRODUCTION
Jurisdiction is the power that a court has to deal with a particular case. However, a court will
not necessarily hear a case just because these rules of jurisdiction are satisfied. There are
certain multi-state cases a court has no jurisdiction to determine, even when jurisdiction is
otherwise established on one of the grounds discussed in this chapter. There are also
considerations which allow a court, in the exercise of its discretion, to decline jurisdiction in a
multi-state case even though the court still has the right to determine the case.
Court WITH
jurisdiction declines to
exercise jurisdiction
week 3 (ch4)
1. Jurisdiction at common law
o Very narrow jurisdiction, but nevertheless continues to exist in Australia
2. Jurisdiction in interstate cases
o Defendant is in another state or territory
o Special rules about Australia and the legal systems within Australia
3. Jurisdiction in international cases
o Defendant is outside Australia
JURISDICTION AT 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
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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 doesnt mean the parties have
agreed about the choice of law (can have choice of forum clause and a choice of law clause.)
CIVIL PROCEDURE PROCESS (TWO STAGES)
1. Claim (writ, application, originating summons) issued when filed and checked
in court registry
o The defendant must be within the jurisdiction when the writ is issued: Laurie v
Carroll
Separate from issue of serving the writ
2. Claim served on defendant (respondent) personally or in case of corporation
(delivery to office)
o Jurisdiction is perfected when served
o However, if left when knowing of writ or to avoid service, then jurisdiction is
perfected
o Defendant tagged on flight between Texas and Tennessee when travelling
through Arkansas airspace: Grace v Macarthur
o Only at this stage can a court be considered to have jurisdiction over a
defendant
Jurisdiction is perfected only when claim served, as only then can the defendant be said to be
under a duty to obey the courts 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
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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 isnt within the jurisdiction when the writ is issued, cant serve writ
o If L left Australia knowing C would sue, would fall within the courts
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
TERRITORIALITY PRESENCE WITHIN JURISDICTION

The basic rule by which a courts jurisdiction is established at common law is that the
defendant must be amenable to the courts initiating process. It does not matter that the
defendants 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 courts jurisdiction.
Similar principles apply in personal actions against a company. The company must have some
presence inside the forums 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
13
Tried to allege that Qld didnt 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 DEFENDANT VOLUNTARILY SUBMITS

1. Submission by agreement
o Forum clause constitutes a voluntary submission to the jurisdiction of the
forums 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
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 courts 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 courts right to hear and determine the merits of the plaintiffs
claim will be taken as submission to jurisdiction
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Submission if
conduct inconsistent
with a protest
against jurisdiction
APPEARANCE
Most states allow you to make a conditional appearance before the court (ie not appearing
before court as a defendant because dont accept the courts jurisdiction.) If you appear and do
something with that challenge eg raise substantive issues, then youve 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 courts 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

Defendants lawyer makes oral submissions on the merits: Boyle v Sacker
Defendant makes a counterclaim on a ground related to the plaintiffs claim: Factories
Insurance Co v Anglo-Scottish General Commercial Insurance Co

Defendant consents to interlocutory orders in the cause: Esal (Commodities) Ltd v
Pujara
Defendant argues against the extension of the limitation period applicable to the claim:
Portelli v Selstam
Defendant applies for an order for security for costs: Lhonex, Limon and Co v Hong
Kong and Shanghai Banking Corporation
However, an exception to this principle is where there is an application that the action should
be stayed on the ground of forum non conveniens. The application proceeds on the assumption
that the court has jurisdiction, but it is argued that in the exercise of its discretion the court
should decline that jurisdiction.
JURISDICTION IN INTERSTATE CASES
Jurisdiction at common law applies in this case as well, but in most situations it is replaced by
statute:
QLD Uniform Civil Procedure Rules 1999

NSW Uniform Civil Procedure Rules 2005
ACT Supreme Court Rules 1937
FCT Federal Court Rules (Cth)
15
VIC Supreme Court (General Civil Procedure) Rules 1996

TAS Supreme Court Rules 2000
SA Supreme Court Rules 2006
HCA High Court Rules 2004 (Cth)
WA Supreme Court Rules 1971
For private international law purposes, Qld is as foreign to NSW as it is to Quebec. From a
common law perspective, Qld has no jurisdiction in NSW legislation has changed this
substantially eg Service and Execution of Process Act 1992 (Cth) and the uniform State and
Territory Jurisdiction of Courts (Cross-vesting) Acts 1987. These schemes have done away
with any private international law issues that could arise between states and territories.
SERVICE AND EXECUTION OF PROCESS ACT 1992 (CTH)
The Act applies to all superior and inferior tribunals having the status of a court under state or
territory law. It provides that initiating processes issued out of any state or territory court can
be served anywhere in Australia, and is to be served as the rules of the court of issue require,
eg Qld Court will use Qld procedure to serve D in WA. Process served interstate in
accordance with the legislation takes effect as if it had been served in the state or territory of
the court of issue, s 12.
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.
JURISDICTION OF COURTS (CROSS-VESTING) 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.
Territory jurisdiction
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
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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.
JURISDICTION IN INTERNATIONAL CASES
This is where the defendant is outside Australia. Under common law, a court has no
jurisdiction
as
the defendant is not
within the courts
territorial jurisdiction
and
has
not
submitted to that
jurisdiction.
Forum vested
with jurisdiction
in such matters
by legislation
Eg. Common Law
Procedure Act
1852 (UK);
SEPA 1902 (Cth).
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 common law and in certain
circumstances the court will have jurisdiction over the foreign defendant. Note: Federal Court
Rules O 8 r 2 is a catch-all clause.
GROUNDS OF JURISDICTION
DOMICILE OR ORDINARY RESIDENCE (FORUM DOMICILII)
If a person is domiciled in Australia or usually resident in Australia, Australia will have
jurisdiction even if the cause of action arises somewhere else. Australian courts will always
have jurisdiction over you as an Australian resident.
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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 Doesnt mean that every part of the breach occurs in Australia, but the breach
alleged must occur in Australia
o This can occur even if the contract is made somewhere else
o Most common is failure to pay
o To justify service on this ground, the plaintiff must show that
The action is in respect of or founded on a valid contract
There was a breach of that contract
The breach took place in the forum
Obligation which plaintiff alleges has been breached must be
one which had to be performed in the forum

If plaintiff alleges that it is the performance of an act that
constitutes a breach of contract, the breach is taken to occur
where the act took place: Safran v Chani

3. Contract is governed by the laws of the forum (proper law of the contract
forum clause)
o When deciding whether service outside Australia can be justified on this
ground, the court only has to be satisfied that there is a good arguable case that
the proper law is the law of the forum, and therefore the courts 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 doesnt 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.
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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
plaintiffs 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
o If it was negligently manufactured outside Australia, dont 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
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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 defendants 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 [1960]
Dispute about stamp duty in relation to property

Stamp duty merely personal debt, couldnt be used against property - not sufficiently
connected to title/possession of property
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When talking about property need to think about what the actual claim is and how that
relates to property
o Unpaid rates falls within property because it is broadly construed
SERVICE OUTSIDE AUSTRALIA AND LEAVE TO PROCEED

Leave to serve outside Australia (FCA, ACT, WA) leave of court required:
Appropriate case (primae facie case)

o So as not to put D to time and expense of answering spurious claims
Within grounds of jurisdiction
Unlikely to obtain stay in proceedings on basis of forum non conveniens
Most courts in Australia (or at least FCA, ACT, WA) will ask whether they are the appropriate
court to adjudicate a matter. Technically, have to show that you are not an inappropriate court
to hear the matter.) The plaintiff must pre-empt other grounds on which the defendant might
apply for a stay of proceedings eg forum clause providing for dispute to be determined in
another court. Leave wont be granted where it is evident that the plaintiff wont succeed,
either because it is unlikely they will make out the claim or the defendant has a good defence.
If dont 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
21
o Action against IRFB by a group of Ps who suffered injuries because of scrums

collapsing
IRFB failed to property scrutinize the way rules about scrimmaging had
been applied
Damages suffered in Australia due to negligence of IRB (outside
Australia)
o P really has burden that the court is not a forum non conveniens
o This forum is an appropriate forum to hear this dispute
o Could argue that Australia is an appropriate forum to hear dispute about
injuries suffered in Australia falls under FCA rules

Held
o Without adjudicating matter, court said that alleging tort by IRFB and IRFB
was negligent was saying that IRFB had duty of care
o The court was not satisfied that P could prove this
Looked at substance of matter and asked primae facie whether P could
show they have a good case against D

In this particular case, claim is spurious couldnt 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 plaintiffs failure at
trial merely be likely or probable
22
JURISDICTION II
REVIEW
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 jurisdictions 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
INTERNATIONAL AND INTERSTATE JURISDICTION

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 ON JURISDICTION
Diplomatic and
consular immunity
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.
FOREIGN IMMOVABLES
23
BRITISH SOUTH AFRICAN COMPANY V COMPANHIA DE MOAMBIQUE [1893]
Applied to title, possession or trespass actions (and actions dependant on these)

Denies a court in the forum the power to hear or determine any case in which it would
be required to determine a persons title to land outside the forum state or a persons
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
24
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
Actions enforce personal

obligation on defendant
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
25
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 As 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
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
FOREIGN STATE IMMUNITY
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
DIPLOMATIC AND CONSULAR 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 PROCEEDINGS
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
26
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
Dont 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
RESTRAINTS THE FORUM COURT PLACES ON ITSELF

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 plaintiffs 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 courts 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 CONVENIENS
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
27
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
Legitimate jurisdictional advantage eg longer limitation period
o If the reason doesnt 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
28
o Spiliada
VOTH V MANILDRA FLOUR MILLS PTY LTD (1992) 171 CLR 538
Facts
o
o
o
o
P was NSW company, D was Missouri accountant

P took action against Missouri accountant
D had given a subsidiary of P some advice about tax that was negligent
Because of that negligence, a subsidiary of P suffered tax penalty which
resulted in them losing certain tax rights in Australia

o Ps 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
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 courts
process
On its face, no different from Geelong Harbour Trust
But also brought revision of courts 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 forums 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 Ps 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
29
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.
The defendant would need to show thata 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.
Limit
appropriateness
test ( eg.
geographic
considerations of
Lord Goff)
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.
PROCEDURE
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
30
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 LJs 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 LJs 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)
Voth applied
i.e. is action vexatious or oppressive
Where foreign commenced first then
action primae facie vexatious or oppressive
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
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.
31
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 courts 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 CLAUSES
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
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
32
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 FAY
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 litigationthe only competent court was the
Commercial Court of Lyon

o Relative convenience and expense (particularly of witnesses and evidence
o P commenced action in Victoria
Held
33
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 doesnt
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-EXCLUSIVE JURISDICTION CLAUSES
34
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 Peoples Insurance Co Ltd. A non-exclusive jurisdiction clause is
not as strong an argument as an 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 PLACES ON LITIGANTS IN ANOTHER
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.
35
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.
CSR LIMITED V CIGNA INSURANCE AUSTRALIA LIMITED (1997) 189 CLR 345
Declaration of no liability
Application for anti suit injunction
restraining CSR in New Jersey
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 CSRs 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
36
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

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:
37
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:
Socit Nationale Industrielle Aerospatiale v Lee Kui Jak (per Goff LJ). It rests on the idea
of comity the forum courts 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 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 courts 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
38
Byrne J found there was good reason for proceedings against Lloyds 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 Lloyds 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
CHOICE OF LAW METHOD I

INTRODUCTION
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.
Matter before the court was really about jurisdiction

o Doesnt 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
39
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
Substantive Law
Common law torts & Qld
(CLA)
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)
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
40
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 PROCESS

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
IDENTIFICATION 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 doesnt matter which law is applied.
This question can only be answered after considering two subordinate issues:
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
41
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 RELEVANT SYSTEMS
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 LAWS
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
42
Application to
family court for
declaration of
validity
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 THE SUBJECT MATTER

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
Classification by dispute in
issue: not trust, but priorities
43
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
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)
Classification
Breach of trust
Choice of law Law of place where
rule
occurred
Law of cause
England
Outcome
Macmillan recovers
Defence (priorities)
Property
breach Law of place where property is
situated (lex situs)
New York
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 forums classifications. However, classification of

property as movable or immovable is usually classified according to the law of situs.
APT V APT [1974] P 127
44
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
Were the witnesses appropriate
o Essential validity ability as an individual to marry
This isnt 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 PROCEDURAL 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

45
o NSW statute placed a cap on damages that could be recovered

Question was whether, from the territory courts 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

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
46
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

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 Territorys 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.
IDENTIFICATION OF CHOICE OF LAW RULE
47
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 wont take this into account because it is a matter of procedure.
However, the law about sister-in-laws is substantive.
APPLICATION OF THE LAW OF THE CAUSE

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.
48
CHOICE OF LAW METHOD II

INTRODUCTION
Substantive Law
Common law torts & Qld (CLA)
FIVE STEP PROCESS

1.
2.
3.
4.
5.
Identification of a conflict of laws

Classification of the subject matter
The classification of substantive or procedural law
Identification of choice of law rule
Application of the law of the cause
COMPLICATIONS
Dpeage
The incidental question
Renvoi
Exclusion of unacceptable laws
DPEAGE
Dpeage 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.
Dpeage 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.
49
Validity of marriage
Formal validity and essential validity

Form of dpeage
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 INCIDENTAL QUESTION

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
Application
marriage void?
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
50
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 law of Israel
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
NO
Held
o According to the preliminary question, in the First Court in Canada, the Chief
Justice said this was a classic case of dpeage
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
51
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

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
52
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 testators 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 testators movable property
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
53
Invalid
Facts
o
o
o
o
R born in Ireland but spent most of his life in England

Towards the end of his life he moves to Belgium and dies there
R left will and number of codicils within will (adds/detracts from will)
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
Held
o Recognised conflict of laws
Look at choice of law rules to resolve
Also look at Belgiums 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
Englands 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
54
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 Belgiums internal laws about
codicils but Belgiums choice of law rules
This is where there is a conflict of conflict of law rules
SOLUTION 1: IGNORE THE RENVOI

Ignoring the renvoi means the forums 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.
Foreign Law (X)
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 Belgiums
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 forums laws are applied ie England would have
recognised Beglian law was the same.
SOLUTION 2: DSISTEMENT
The foreign law, according to its own terms, does not give an answer. Accordingly, the
forums choice of law rule has not identified an appropriate law of the cause, and the forums
55
choice of law method fails. Therefore the forums internal law is applied by default. This
theory is the same as ignoring the renvoi if it arises.
In Collier v Rivaz Englands 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 doesnt give an
answer. This is actually simply recognising the conflict of conflict of law rules. Assume this
jurisdiction doesnt 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 dsistement, a forum would actually look at
the choice of law rules of the other jurisdiction.
SOLUTION 3: ACCEPT THE RENVOI (SINGLE RENVOI)
This is one of the most common ways of reacting to the renvoi often called the single
renvoi. On only one occasion will another countrys choice of law rules be considered.
REMISSION
The forum court refers the question to the foreign forums 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.
Foreign Law (X)
56
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 Belgiums 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 courts transmission and applies the internal law of the third forum as the
law of the
cause.
Foreign Law
(Y)
SOLUTION 4: REJECT THE RENVOI

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 countrys laws, the forum
court rejects the transmission and applies the law of the foreign forum.
57
SOLUTION 5: FOREIGN COURT THEORY (DOUBLE RENVOI)

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 jurisdictions attitude to
renvoi.
Foreign Law (X)
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
China
58
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
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 husbands
employer in WA
Held
o More than 1 jurisdiction involved WA and China
o This is a matter of tort lex loci delicti
Chinas 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 Chinas 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
59
Ultimately the party that was going to pay was the NSW insurer
Giving effect to Chinese choice of law rules doesnt give a proper answer
Single versus double renvoi compared

Single renvoi
Place of domicile
Double renvoi
China ignore the 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
60
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
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 testatrixs 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 Frances 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
61
Facts
o English national leaves will which is contested
o Deceased domiciled in Italy
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 deceaseds 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 RENVOI

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
62
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.
EXCLUSION OF UNACCEPTABLE LAWS
Unrecognised states
Penal laws
Revenue laws
Expropriation laws
Foreign governmental interests
Public policy
FOREIGN GOVERNMENTAL INTERESTS
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
63
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 wouldnt be applied
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 FOREIGN 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 IDENTITY
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 werent facts.
Failure to plead, or to prove results in:
64
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
65
Cmtlawenorsi
PERSONAL CONNECTING FACTORS

INTRODUCTION
Many
rules use
factor to
law of
choice
intestate
law
the
of
time of
choice of law
a
personal
connecting
determine
the
the cause. Eg
of law rule for
succession
to
moveables is the
the place where
deceased
was
domiciled
at
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.
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 doesnt matter who
they are. However, for certain private purposes, the fact you are Australian doesnt mean you
have forgone this body of law.
PERSONAL CONNECTING FACTORS
Domicile
Citizenship (or nationality)
Residence
RELATIVE
66
CONCEPTS
Nationality/
citizenship
Australian
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.
DOMICILE
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 didnt acquire
permanent or indefinite presence in any one state

For purposes of State legislation, the court said that if cant 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
DOMICILE OF ORIGIN
A persons domicile of origin is ascribed at birth. The common law rule is that a legitimate
child takes fathers domicile at time of birth, and an illegitimate child takes mothers.
Foundlings take domicile where found.
67
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 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 didnt 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).
UDNY V UDNY (1869) LR 1 SC&DIV 441
1854 Married to
mother
Scotland
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 wont 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
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Scottish law would determine whether the child was legitimate
DOMICILE OF DEPENDENCE
Where a person does not have the legal capacity to acquire a domicile of choice, that persons
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
husbands: 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 parents, even after majority is reached.
DOMICILE OF CHOICE
Domicile of choice requires two factors:
1. Presence (or factum)
2. Intention (or animus manendi)
PRESENCE
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.
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 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
69
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 dont 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 didnt 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
On retirement from RAF, return to Nova Scotia, but wife objected

o Return dependent on changing her mind or her predeceasing husband
Knows he wont 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

70
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
REFUGEES/TEMPORARY RESIDENTS/ILLEGAL RESIDENTS

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 dont intend to return. Common law only
requires presence and intention, doesnt say anything about illegality. However the fact that at
common law one can acquire a domicile doesnt affect your public law obligations as an
illegal immigrant.
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
CITIZENSHIP
Australian citizenship
Foreign citizenship (as recognised by Australian law)
Dual citizenship
AUSTRALIAN CITIZENSHIP
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.
The Australian Citizenship Act 2007 (Cth) lists five grounds:
Birth
Adoption
Descent
71
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
FOREIGN CITIZENSHIP
WHEN WILL AUSTRALIAN LAW RECOGNISE 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 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
Held
o HCA ruled that both of these candidates were still candidates of the foreign
countries and therefore could not stand for parliament
72
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
RESIDENCE
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 persons 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 mans 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.
73
STATUTE AND THE CHOICE OF LAW METHOD

INTRODUCTION
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.
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 THE FORUM

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 forums 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
MANDATORY 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).
74
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 agents 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 PEOPLES 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
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 LEGISLATED LOCALISING RULES
75
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
parliaments legislative power

Evatt J effectively suggested the same
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 EXPLICIT LOCALISING RULE IN STATUTE

MYNOTT V BANARD (1939) 62 CLR 68
Presumed
intention of
parliament
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 didnt 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
76
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 workers compensation
would be the applicable law only when the death occurred in Victoria
o Merely localising the statutes
LOCALISING BY CHOICE OF LAW RULES
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.
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
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 companys 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
77
If a choice of law rule leads to foreign lex causae, then statute wont 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 shouldnt 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
Held
o Held this was not the case didnt read any localising effect into this
o Read it down in terms of infringing on the common law private international
law rules
Eg only in Mynott when there is no exceptional choice of law rule that
can be used, run through the usual process
o Important thing is the choice of law process may mean that you dont end up
applying your own statutes (eg Sykes)
Have to be quite clear that your own statute does not override the
common law rules

Have to be careful about the nature of the act you have within your
jurisdiction
Have to be aware whether that Act contains within it a mandatory rule
that overrides the common law process
STATUTE LAW OF FOREIGN JURISDICTION

Statute law of foreign jurisdiction usually applies if the forums choice of law rules indicates
that the foreign law is to be the lex causae. What if the foreign statute contains its own
localising rule?
SAYERS V INTERNATIONAL DRILLING CO LTD NV (1971) 3 ALL ER 163
78
Dutch Civil code

only apply if both
parties Dutch
Facts
o English court had dispute between employee (English) and employer (Dutch)
Contract had exemption for liability in tort could only sue in contract
o Exemption clause was invalid under both the law of England and the Dutch
Civil Code
o The English common law choice of law rules said the contract was governed
by Dutch law
o Dutch Civil Code has within it a localising effect
Civil Code is not supposed to be applied with any case where one of the
parties is not Dutch
o Want to import foreign body of law to dispose of matter but cant because of
localising element
Held
o When there is no alternative there is a problem
Cant apply Dutch law because of localising effect and cant apply
English law because choice of law rule says to apply Dutch law
Substantive law is affecting
o Dutch evidence was that if DCC did not apply the clause was valid (from cases
in Netherlands)
Could exclude statute and apply alternative Dutch rule
This relies on there being an alternative that the foreign court
has in itself provided in the past
79
CHOICE OF LAW METHOD (REVISION)

FIVE STEP PROCESS
1.
2.
3.
4.
5.
Identification of a conflict of laws

Classification of the subject matter
Classification of substantive or procedural law
Identification of the choice of law rule
Application of the law of the cause
Incidental
First step is to identify that there are these jurisdictions that are important. The only way you
can tell this is if you have some knowledge of the choice of law rules you have to apply this
is why the process is somewhat circular.
Merely identifying those jurisdictions is one thing what we are really looking for is a
conflict of laws those jurisdictions provide different outcomes. When that occurs, we have a
conflict of laws. In a sense if they all do the same thing and apply the lex fori, you are
ignoring your choice of law rules.
Once you have identified there is a conflict of laws or likely that there is a conflict of laws, the
next step is to classify the matter. Classification trying to narrow the issue down to the point
where, associated with that classification is a choice of law rule. Whether you have a rule that
is at a sufficient degree of abstraction there is a choice of law rule attached to that.
That classification process sometimes there are alternatives to that level of abstraction. Then
have to narrow the issue down to what is actually in dispute between the parties and that is
what you classify and from that classification you find the choice of law rule.
Once youve done that, there are other problems. Depecage is a contractual issue situation
where having classified the matter as contract you find that there are two different choice of
80
law rules associated with the different classifications but continue with both of those eg
formal and essential validity of a marriage. The other alternative is that once you have
classified a matter in resolving the dispute there are two classifications that you have been
unable to avoid simply fold the incidental question into the main question.
Then you have substance and procedure issues of procedure fall outside the choice of law
rules.
Resolution?
At this stage you can eliminate some of the jurisdictions.

This leads you to a foreign body of law.
Once you have removed those statues with a localising effect, have identified the law of the
cause. Now must address the questions of the choice of law rules of other jurisdictions and
whether need to consider the problem that arises from conflict of conflict of law rules.
This isnt a step by step process.
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FOREIGN AND INTERSTATE JUDGMENTS

INTRODUCTION
Enforcement in
foreign State
Enforcement or
recognition of
foreign judgment
in Australia
It becomes a matter for Australian law as to whether Australia will recognise or enforce a
foreign judgment hope that a foreign entity will reciprocate the basis for our jurisdiction.
This is the foundation upon which recognition and enforcement is based.
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS
Enforcement
While Australian courts may exercise exorbitant jurisdiction may be of no effect if the
defendant has no assets in Australia and judgment cannot be enforced in a foreign state in
which the defendant does have assets.
There is a close relationship between concepts. The basic principle underpinning recognition
and enforcement is the extent to which the foreign courts exercise of its jurisdiction mirrors
the enforcement (Australian) courts jurisdiction.
Therefore, at common law, a foreign courts judgment will be recognised in Australia if the
foreign court exercised jurisdiction based on:
1. Presence in the jurisdiction
2. Submission to the jurisdiction
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The exercise of jurisdiction does not mean that the court can impose liability, which depends
on it being able to exercise coercive power. While it will be able to exercise coercive power in
the forum, it will only be able to impose liability outside the borders of the forum state if the
rules for the recognition and enforcement of foreign judgments in the place where
enforcement is sought recognise the forum courts judgment.
While the right of an Australian state court to exercise jurisdiction in an Internet defamation
case merely because the libellous material was downloaded in the state might initially seem
exorbitant, the actual exercise of that jurisdiction by an Australian court could be worthless to
the plaintiff if the defendant had no Australian presence or assets: Dow Jones & Company
Inc v Gutnick.
There are two main ways of recognising and enforcing judgments:
Enforcement at common law

Enforcement under statute
o Foreign judgments
o Interstate judgments
RECOGNITION AND ENFORCEMENT OF JUDGMENTS AT COMMON LAW
Judgment in forum
Enforcement of a judgment obtained in a court outside Australia requires that matter to be

brought in Australia as a new case. Australia views the judgment as an obligation one party
is to pay the other party a sum of money. If it is merely an obligation to pay and you are
requiring that to be paid in Australia, all that the Australian court is doing is entertaining an
action to enforce an obligation. The foreign judgment is evidence of that obligation.
However, the foreign judgment is not enforceable because of the foreign judgment strictly
only enforceable when adjudged to be enforceable by a court in the forum. This means that
the court in the forum must have jurisdiction over the judgment debtor at common law, under
SEPA or by its rules of court.
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Jurisdiction
If the judgment debtor refuses to pay the obligation, have to come to Australia to initiate a
new action. Jurisdiction will have to be found either by common law or statute.
For the forum to enforce a foreign judgment at common law, must satisfy the following
conditions:
Foreign court has international jurisdiction
o Look at the mechanism by which the foreign court has exercised jurisdiction in
deciding the matter in the first place
o Know that the foreign court has exercised jurisdiction according to its laws, so
dont look to its laws
o Look to our law to see if it is exercising jurisdiction in a way that mirrors ours
Final judgment
Fixed sum
Identical parties
The Australian court will apply Australian law to determine whether in fact it will enforce that
obligation.
INTERNATIONAL JURISDICTION
International jurisdiction means the competence that the law of the forum recognises that at
court in a foreign country can exercise if its judgment is to be recognised or enforced in the
forum. International jurisdiction is assessed by the laws of the forum. It is assumed the foreign
court had jurisdiction under its rules. At common law, therefore mirrors (to a large extent)
common law jurisdiction of forum. Other (wider possibilities have arisen.)
At common law, this mirrors common law jurisdiction of forum, that is:
Presence within territory of foreign court

o At time initiating process served on defendant including corporation
o Under our jurisdictional regime, we readily recognise presence within the
jurisdiction thus we will recognise if a foreign court exercises jurisdiction on
the same basis

Submission
o Either express or by conduct inconsistent with a protest against jurisdiction
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o Defendant can say that they never submitted to the jurisdiction of the other
court
PRESENCE
Where the defendant/judgment debtor is a natural person, the international jurisdiction of the
foreign court will be recognised when the debtor was served in the foreign place with the
initiating process for the proceeding that led to the making of the foreign judgment.
SUBMISSION
There are two particular means by which submission to the jurisdiction of the foreign court
might be shown:
1. Express agreement
2. Conduct inconsistent with a protest against the jurisdiction of the foreign court
This is a less than perfect mirror of jurisdiction.
Note: if the parties agree to a choice of forum clause and judgment is entered against the
debtor in that place, at common law, the foreign court will be regarded as having exercised
property international jurisdiction even if B refused to actually appear before the foreign
court. A choice of law clause is insufficient to establish international jurisdiction.
HARRIS V TAYLOR [1915] 2 KB 580
Considered the question of a challenge to jurisdiction

Facts
o D challenged courts jurisdiction, but the court rejected the challenge
o D didnt accept the rejection and didnt come to court
o Court ruled summarily against the defendant and P sought to have the
judgment enforced in England
Held
o English court enforced the judgment
o Even though D had challenged jurisdiction and lost and had not appeared, that
amounted to submission to jurisdiction
HENRY V GEOPROSCO INTERNATIONAL LTD [1976] 1 QB 726
Extended Harris v Taylor

Facts
o D went to foreign court and said they werent the appropriate court raised
forum non conveniens
o They lost that challenge and ruled against the D
o Went to the English jurisdiction and tried to have that judgment enforced
85
o English court had to consider whether that jurisdiction was appropriately
exercised
Held
o When D raised forum non conveniens, they recognised te competence of that
foreign court but requested it to not exercise that jurisdiction it clearly had
o English court enforced the judgment
Section 11 of the Foreign Judgments Act 1991 (Cth) ensures that neither approach is followed
in Australia. In any proceedings brought in Australia to enforce a foreign judgment, the
foreign court is not taken to have had jurisdiction to give the judgment merely because the
judgment debtor entered an appearance. Nor is the foreign court taken to have had
international jurisdiction merely because the judgment debtor participated in the foreign
proceedings for the purpose of contesting the jurisdiction of the court, or for inviting the court
in its discretion not to exercise jurisdiction. NB applies to common law enforcement action.
In rem proceeding
Ground for jurisdiction and follows choice of law rule that law regarding title to or
possession of immovable property is determined by the lex situs

Probably only for immovable property and chattels
Domicile or residence
Possibly can be international jurisdiction in Australia if old English precedents are
followed
Where the judgment debtor is ordinarily resident in a foreign place, the relevant
foreign courts will, for that reason, have international jurisdiction to render a judgment
capable of being recognised or enforced in the forum: Marshall v Houghton
o Also held this applied for defendant who was domiciled in foreign place
Nationality
Precedent in the UK suggests nationality should not be used: Sirdar Gurdyal Singh v
Rajah of Faridkote[1894] AC 670

However, Federal Finance & Mortgage Ltd v Winternitz (Unreported NSW 1989)
says otherwise
Raises question as to whether we should accept jurisdiction in a foreign court that is
exercised on a conceptually similar basis to what we would exercise jurisdiction, but
not the same basis.
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Real and substantial connection
Canadian courts developed a broad basis for the recognition of extraterritorial

judgments where the judgment is made in a place that has a real and substantial
connection with the action or the defendant

Morguard Investments Ltd v De Savoye [1990] 3 SCR 1077 related to a matter
internal to Canada involving two provinces
o A Canadian provincial court should recognise the judgment of another
provinces courts where the jurisdiction that the rendering provinces court was
exercising was based on a real and substantial connection between the province
and the action of the defendant, and on principles of order and fairness
The proposition was extended in Beals v Saldanha[2003] 3 SCR 416 to foreign
jurisdiction
Unlikely this will be followed in Australia adds nothing to interstate judgments
(SEPA) and the ground is so flexibly defined as to give little guidance as to when
foreign judgments made where there was some connection with the place where it was
rendered will not be recognised
Reciprocal jurisdiction
While reciprocity underpins recognition of foreign judgment, it is not applied in sense

wider than common law
o Except by way of statute in relation of recognition of marriages, annulments
and divorces
While a foreign court may exercise a wide jurisdiction under its statute to allow for
service on defendant outside the jurisdiction of that court, and that basis is the same
(mirrors) that of the Australian court in which enforcement is requested, this is
insufficient to found international jurisdiction: Crick v Hennesy [1973] WAR 74

Therefore, just because some other court has exercised some similar jurisdiction does
not mean that we will accept that jurisdiction
o Australia tends to mirror the common law ie presence, submission may
mirror domicile but this is where the issue stops
o Australia doesnt mirror anything else at common law
o There are exceptions relating to marriage, divorce, annulment of marriage etc
FINAL JUDGMENT
Judgment must be final and conclusive res judicata (ie cannot be re-litigated in the same court
by the same parties) but it may be subject to appeal, and can include a default judgment. If
87
there is an appeal, can stay the enforcement of the original action. Except if it can be set aside
by appearance.
NOUVION V FREEMAN (1889) 15 APP CAS 10
Spanish summary judgment not final as defendant could bring plenary proceedings
within certain time

Until that time had expired, there was always time to relitigate the matter
English court said they would not enforce until such time as the expiry date had come
and gone
FIXED SUM
The theory of obligation assumes that the foreign judgment will represent an obligation on the
part of the defendant/judgment debtor to pay a sum of money to the plaintiff/judgment
creditor. At common law, enforcement is only for a fixed sum if the sum cant be calculated
it is not capable of enforcement. This includes an order in specie such as specific performance
or an injunction. However, some other orders may be recognised:
WHITE V VERKOUILLE [1989] 2 QD R 191
Required that Qld court appoint a receiver subject to probate etc

Order to appoint a receiver was a foreign order but Qld court willing to enforce that
order here
At common law can get something other than damages enforced, but they are limited
IDENTICAL PARTIES
The plaintiff seeking to enforce a judgment in Australia must be the same plaintiff that sought
the judgment in the first place. The defendant must be the same defendant who was in the
foreign court.
BLOHN V DESSER [1962] 2 QB 116
Austrian judgment and Austrian D was partnership

Partners not liable for debts of partnership under Austrian law
P succeeded in Austria and wanted to enforce against 1 partner with property in
England
English court said there was a difference in defendants
o Here the defendant was one partner and in Austria was a partnership
DEFENCES AT COMMON LAW
Foreign judgment obtained by fraud

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Debtor denied natural justice

Enforcement would amount to enforcement of foreign penal law, revenue law or
other governmental interest

Recognition or enforcement would be contrary to forums public policy
FOREIGN JUDGMENT OBTAINED BY FRAUD

The original judgment must be obtained by fraud, however, a question arises as to whether
this is extrinsic or intrinsic fraud. Intrinsic fraud is evident during the litigation eg the
fraudulent issues are raised at court. Extrinsic evidence comes to light after the litigation.
A court ought to accept that a judgment is a legitimate judgment, and should only question if
matters come to light after that judgment eg perjury or falsification of documents or
something not known to the courts that made that decision. Otherwise, it may amount to relitigation if intrinsic fraud is considered.
AHMED V HABIB BANK [2001] EWCA CIV 1270
Foreign judgment lacked reasoning and documents suggested fraud

Facts
o When it came time to enforce, the judgment obtained in Pakistan, considered
the fraud raised by the defendant
o D brought evidence during the trial that the matter was tainted by fraud but the
trial judge in Pakistan didnt find a fraud to exist
o D managed to give evidence in England to say that the documents they had
suggested there was a fraud and any reasonable court with those documents
would have found a fraud

Held
o English court in a sense re-litigated issues
Could not see how a Pakistani judge couldnt see a fraud
o Refused to enforce the judgment
o Reconsidering evidence and saying how a Pakistani judge should have decided
it according to English standards
o Undermining one of the key principles that is required for enforcing judgments
final and conclusive the foreign judgment was not res judicata on the
question of fraud
Consequences of this decision
o Incompatible with concepts of res judicata
o Encourages saving for a second attempt
Defendant may not participate completely in the foreign proceedings
See Yoon v Song (2000) 158 FLR 295
ISRAEL DISCOUNT BANK V HADJIPATREAS [1983] 3 ALL ER 129

89
Court said that if matter could have been raised in the foreign court, was not raised in
the foreign court but raised now (kind of intrinsic fraud) strategically as a defence, will
not accept that fraud as a fraud that is used to defend the enforcement action
At least accepted some limitations
See also Owens Bank Ltd v Bracco [1992] 2 AC 443
HOUSE OF SPRING GARDENS LTD V WAITE [1991] 1 QB 241
Original judgment made in Ireland, but defendants tried again in Ireland to have that
judgment set aside on the ground of fraud

This failed, and the plaintiff sought to enforce the judgment in England
The English court considered that, as the question of fraud had already been relitigated
in Ireland, the defendants could not raise it again in England
English (and NZ) approach is to allow for cases other than extrinsic fraud. The Canadian
approach is limited to extrinsic fraud. The Australian approach refers includes the following
cases:
NORMAN V NORMAN (NO 2) (1968) 12 FLR 39
Initially federal court took English approach

Can take into account fraud that is raised during that case as part of the defence to the
enforcement
KEELE V FINDLEY (1990) 21 NSWLR 445
NSW court ruled that only extrinsic evidence ought to be taken into account
YOON V SONG (2000) 158 FLR 295
FCA came back to Norman and said there are cases in which intrinsic fraud can be
taken into account as a defence
Therefore, in Australia it appears to be the case that intrinsic fraud can be used as a basis to
defend an enforcement action.
DEBTOR DENIED NATURAL JUSTICE
The requirements of natural justice are:
Due notice of proceedings (forum clauses and foreign law?) and

Both parties given fair opportunity to present their case
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If parties are not given appropriate opportunities to prepare/participate and the judgment was
rendered under those circumstances, D can use that.
PUBLIC POLICY, PENAL AND REVENUE LAWS
A court in Australia has power to refuse to apply the usual law of the cause in a choice of law
case on the ground that to do so would be contrary to the public policy of the forum.
Similarly, the forum court has power not to recognise or enforce a foreign judgment where to
do so would produce an outcome that is contrary to the public policy of the forum.
INCOMPATIBLE JUDGMENTS
Where the matter adjudged in the foreign place has already been adjudged differently in the
forum, it will normally be contrary to the public policy of the forum to recognise or enforce
the foreign judgment. When someone comes to enforce a judgment in Australia, D says they
have received judgment somewhere else in their favour.
SHOWLAG V MANSOUR [1995] 1 AC 431
Facts
o
o
o
o
S went to a court in England and succeeded against M

M went to a court in Egypt and succeeded against S
S tried to enforce the English judgment in Jersey
M tried to use the Egyptian judgment as a defence to the enforcement of the
English judgment
Held
o Court looked at both judgments and said both are enforceable
Both exercised international jurisdiction etc
o The first in time prevails whoever got the judgment first prevails
A subsequent incompatible judgment cannot be used as a defence
where both the parties are the same
o Lord Keith of Kinkel held that where there are two competing foreign
judgments each of which is pronounced by a court of competent jurisdiction
and is final and not open to impeachment on any ground then the earlier in
time must be recognised and given effect to the exclusion of the other
o First in time to enforce the judgment prevails
ENFORCEMENT BY STATUTE
INTERNATIONAL JUDGMENTS
A blanket acceptance of the competencies of a foreign court and for the registration of that
court in the forum, allowing enforcement (subject to defences similar to those at common
law.) The Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK) was replicated in all
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States of Australia, and common with the Commonwealth including Canada and NZ.
Therefore, the defendant doesnt have to be in the jurisdiction. This statutory encoding of the
common law that parallels the common law to some extent but with a small amount of
variation.
FOREIGN JUDGMENTS ACT 1991 (CTH)
This Act replaced all existing state and Cth legislation and thus applies to all states and
territories. It list jurisdiction with which there is a reciprocal agreement. For superior courts:
Canada
France
Germany
Italy
Japan
Korea
New Zealand
Poland
Singapore
Switzerland
China
UK
For inferior courts, there is a smaller list:
Some Canadian provinces

New Zealand
UK
Poland
Switzerland
Where the Act applies, cannot enforce at common law.

Judgment is defined as a final and interlocutory judgment or order given or made by a court
on civil proceedings: s 3(1). It also allows for the registration of:
Criminal judgments which award compensation to victim

Arbitral awards
Allows for proclamations allowing specific performance and injunctions (none yet
made)
Therefore, judgment doesnt have to be for a fixed sum of money, a much wider range of
actions can be enforced than at common law.
REGISTRATION
92
Registration much occur within 6 years of judgment (or appeal) provided that:
It is a judgment to which the Act applies

Not wholly satisfied
Enforceable in the place where it was made
NB: no need for court to have jurisdiction over judgment debtor. See Hunt v BP Exploration
Co (Libya) Ltd (1979) 144 CLR 565. At common law you do have to have jurisdiction over
the judgment debtor at common law or statute.
HUNT V BP EXPLORATION CO (LIBYA) LTD (1979) 144 CLR 565
Facts
o BP took action against H in UK, also had assets in Qld
o BP wanted to enforce the judgment in Qld because he had assets here
o H challenged because he wasnt in Qld and had no connection other than
having property there
Held
o No need for the Supreme Court to have personal jurisdiction over the judgment
debtor for the judgment to be registered
o At common law, saying this is an action in personam
Action to enforce an obligation that already exists
This is not the case at all this is merely registration under a reciprocal
arrangement which allows us to enforce a judgment against a particular
person
o Illustrates doesnt require jurisdiction
But must comply to similar standards required of the common law
o At common law a judgment creditor who sought to enforce a foreign
judgment who sought to enforce a judgment in Queensland by suing on the
judgment in the Supreme Court could only do so if the judgment debtor was
answerable or amenable to the jurisdiction of the court
o The Act dispensed with this requirement, since the application for registration
does not involve an action in personam requiring service of the Supreme
Courts process in or outside the jurisdiction
Because there is a reciprocal arrangement scheme, it almost stands to reason that judgments
will be recognised. On registration, it is naturalised ie has the same force and effect as
judgment of a court and deemed to be made on date of registration. Judgment registered in a
States Supreme Court can then be registered in any other States Supreme Court by way of
Service and Execution of Process Act 1992 (Cth). Registration can be stayed until foreign
appeal concluded. Most of the courts require notice to be given to the judgment debtor.
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SETTING ASIDE REGISTRATION

Judgment debtor can resist and make judgment unenforceable by having the registration set
aside. The debtor can apply to the Supreme Court in which the foreign judgment was
registered to have the registration set aside. If a judgment was made in a foreign country and
merely registered in Victoria, the debtor can invoke the procedures of the Foreign Judgments
Act in SA to have registration of the judgment set aside there.
1. If judgment is one to which the Foreign Judgments Act does not apply
2. If the judgment registered was for a sum greater than the amount payable at the
time of registration
3. Obtained in breach of Act
4. S 7 Foreign Judgments Act if condition for registration were not met and grounds
which mirror to large extent common law
o Sets out a number of defences available and a number of bases on which you
can have a judgment set aside
o While it mirrors the common law, the Act itself sets out different rules as to
international jurisdiction depending on whether the action is

In personam
In rem
Relating to immovable property
Unclassified
However, in any of these cases, international jurisdiction not recognised if
Foreign proceedings related to immovable property was not located in the foreign
place
Brought in breach of exclusive choice of forum clause
Judgment debtor entitled to immunity in public international law and did not
submit to courts jurisdiction
SECTION 7 FOREIGN JUDGMENTS ACT

1. Set aside if foreign court not exercising a recognised international jurisdiction
International jurisdiction will not be recognised in any of the following cases:
If the foreign proceedings related to immovable property that was not located in the
foreign place
If the proceedings were brought in the foreign court in breach of an exclusive
jurisdiction clause (and the defendant had not otherwise submitted to its jurisdiction)
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If the debtor was a person who under the rules of public international law was entitled
to immunity from the jurisdiction of the courts of the foreign place and the debtor did
not submit to jurisdiction
Proceedings in personam
The foreign court is recognised as having exercised international jurisdiction in proceedings
in personam where, at the time the proceedings were commenced, the defendant-judgment
debtor was a natural person who was resident in the relevant foreign place. This may mean
that the debtor was merely present in the foreign place at the time proceedings were
commenced.
It is also sufficient that the proceedings relate to a transaction that the debtor effected through
an office or place of business that the debtor had in the foreign place. Further, the international
jurisdiction of the foreign court is established if the debtor voluntarily submitted to its
jurisdiction. It expressly excludes submission by agreement/conduct.
(most instances except most matrimonial causes) where judgment debtor resident in
foreign jurisdiction = presence, conduct of business through agent etc, submission, exclusive
jurisdiction clause, raising of substantive issues etc.
DE SANTIS V RUSSO [2002] 2 QD R 230
Facts
o R took action against D in supreme court in Rome and managed to obtain
judgment against D
o D actually attempted to engage in the litigation in Rome but didnt manage to
get it right
Whatever approach they made the court rejected that approach
D failed to become engaged in the matter
o Finally court entered summary judgment in Australia
o R comes to Australia and tries to get judgment enforced
Held
o Court looked at Ds attempts, so Australian court said that D did not submit to
the jurisdiction of the court
o If D had not succeeded in submitting to the jurisdiction of the court, then D had
not submitted to the jurisdiction of the court therefore the court did not have
jurisdiction over D and refused to enforce judgment
o This is part of the defence to the registration of the judgment under the
registration
o Registration was set aside on the basis that there was no in personam
jurisdiction of the Roman court
o Some of the concepts that exist under common law still apply under statute
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o Precedent for the way in which registration set aside

Overriding consideration appeared to be not that de Santis had tried to participate and
defend the merits of her claim, which may suggest voluntary submission, but that the
foreign court had taken no notice of her attempts or informal submission
o On that ground, she could not be considered to have participated in the foreign
proceedings, and registration was set aside
See section 7(5) of the Foreign Judgments Act submission does not include:
Contesting the jurisdiction of the court

Inviting the court in its discretion not to exercise its jurisdiction in the proceedings
o S 11 and relation to common law
Proceedings in rem
Property, often maritime property (ships). International jurisdiction established if immovable
property within jurisdiction of foreign court. The international jurisdiction of a foreign court is
established under the Foreign Judgments Act in proceedings in rem or relating to immovable
property if the property was in the relevant place at the time of the proceedings.
Unclassified proceedings
If the foreign judgment emerged from proceedings that could not be classified as in personam
or in rem, the Foreign Judgments Act provides that the international jurisdiction of the foreign
court is recognised if it is recognised by the law in force in the state or territory in which the
judgment is registered.
2. If not identical parties
The registration of a foreign judgment must be set aside if the rights under that judgment are
not vested in the applicant for registration. The applicant must therefore be the judgment
creditor of the judgment made in the foreign place.
3. If judgment obtained by fraud
The registration of a foreign judgment must be set aside if that judgment was obtained by
fraud. This probably parallels the defence of fraud available at common law.
4. If no natural justice
B had insufficient or no notice AND did not participate in the proceedings: Barclays Bank
Ltd v Piacun [1984] 2 Qd R 746
5. If contrary to public policy (of Australia)
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The registration of a foreign judgment must be set aside if enforcement of the judgment would
be contrary to public policy.
6. If incompatible judgment
o Being a judgment obtained in foreign court AFTER a final and conclusive
judgment made elsewhere in a court having international jurisdiction
Perhaps the most important thing about the Act is that the judgment debtor does not need to be
within the jurisdiction of the court, the rest follows the common law to some extent.
INTERSTATE JUDGMENTS
Sections 104 6 and 109 Service and Execution of Process Act 1992 (Cth).
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MARRIAGE
INTRODUCTION
Marriage is largely a federal concern Marriage Act 1961 (Cth) and Family Law Act 1975
(Cth). There is no conflict of law issues within Australia because choice of law and
recognition rules are all derived from Australia really foreign marriage/foreign divorce.
The Hague Convention on Celebration and Recognition of the Validity of Marriages 1978
sought to create a mechanism by which marriages entered into anywhere in the world would
be widely recognised, and did so by making the choice of law rule lex loci celebrationis.
Marriage celebrated in
Australia
Before 7 April 1986
After 7 April 1986
The Act sits on top
the changes were
1986.
For
marriages entered into in
Australia
prior to this date, they are still
governed
of the existing common law

brought into effect on 7 April
Foreign marriages
by the common law to some
extent
For marriages which post-date this, only the Act applies no common law
For marriages that are foreign to Australia the common law and Act apply as an
alternative
MARRIAGE
Australian marriage is one solemnised in Australia according to Australian law (Marriage
Act 1961 (Cth) (or solemnised by Australian foreign diplomatic officers in Australia or
overseas).
Foreign marriage is one solemnised in a foreign country under a foreign system of law.
Foreign marriages are one fo the concerns of Private International Law, and are governed
largely by Part V Marriage Act 1961 (Cth), addressing:
98
Whether a foreign marriage is valid

The extent of recognition of marriages or unions within the nature of marriage
MARRIAGE ACT 1961 (CTH)

Common law applies only to the extent that the Marriage Act 1961 (Cth) preserves and
permits its application. Otherwise the Marriage Act governs marriage it only really changes
the essential validity requirements. The Act provides:
Marriageable age is 18 (16-18 possible with parental and judicial consent)

Prohibited relationship descent, siblings (including half and adopted siblings)
o No affinity prohibitions
Reality of consent
MARRIAGE VALIDITY
Primary issue where
Declaration of validity
Annulment
An incidental question when
Dissolution
Revocation of will by marriage
Inheritance of spouse or child
Legitimacy of child
Taxation relief of spouse
COMMON LAW AND MARRIAGE ACT

THE NATURE OF MARRIAGE
HYDE V HYDE AND WOODMANSEE (1866) LR 1 P & D 130 AT 133
Husband brought proceedings in England for the dissolution of a marriage conducted

in Utah in accordance with Mormon rites
o Marriage had been entered at a time when Mormonism endorsed and practised
polygamy
o Having renounced his Mormonism, the husband returned to England
o Wife then remarried a second time again, in Utah, in accordance with
Mormon rights so the husband alleged that a dissolution could be granted on
the ground of her adultery
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Decree was refused

Marriage was only potentially polygamous, therefore refused any remedy that could
otherwise be granted by an English court

Lord Penzances definition of a Christian marriage
o The voluntary union for life of one man and one woman to the exclusion of all
others
Marriage means the union of a man and a woman to the exclusion of all others, voluntarily
entered into for life: Marriage Amendment Act 2004 (Cth) ss 5, 46(1) Marriage Act 1961
(Cth).
VOLUNTARY UNION
The marriage relationship is one entered only with the voluntary consent of the man and
woman involved. The mere agreement of the parties to live as husband and wife was the only
requirement imposed by the medieval canon law for a relationship to be recognised as a
marriage.
Consent cannot be given if:
Duress
Fraud
Mental capacity
Mistake as to effect of ceremony
So long as they are also of marriageable age, it is only the parties consent to the marriage that
is relevant.
INDEFINITE DURATION
The best that can be said is that marriage is a relationship for an indefinite period. It will
subsist for life unless earlier dissolved in accordance with the law.
Whenever (irrespective of the grounds) the law recognises that a marriage can be dissolved a
mensa et thoro, it must assume that a marriage might not subsist until the parties are separated
by death.
Monogamous
o Though aspect of polygamous marriages are recognised
o Suggested by to the exclusion of all others
100
MONOGAMOUS
An enduring, and intractable, question concerning the legal concept of marriage has been
whether it is only a legally and actually monogamous marriage that will be recognised, or
whether concessions are to be made to the recognition of potentially or actually polygamous
marriages. Need to distinguish between monogamous and polygamous marriage (and
potentially polygamous marriage.)
A potentially polygamous marriage is where there is only 1 spouse, but there is the potential
to take another.
The time for determining the nature of the union is the time when the proceedings that give
rise to the need to determine the question are commenced:
A potentially polygamous marriage, which has become an actually polygamous

marriage, may be valid
o Eg if wife doesnt give birth within 2 years, entitled to take another wife if
she does it becomes monogamous
Also possible that parties may unintentionally changed the union from
potentially polygamous to monogamous by acquiring domiciles in a
place, like Australia, which under its internal law does not allow
polygamy
o If it is potentially polygamous it is always voidable it needs to become
actually monogamous
Defect is cured by change to a monogamous marriage
But an actually polygamous marriage, even if it becomes actually monogamous, will
never be valid
o If you had 2 wives and now have 1, still have an actually polygamous marriage
Not regarded as married
Absolutely void will not be recognised
The fact the union has been polygamous means will not be
regarded as union
There has to be a marriage before start looking if it is a valid
marriage
o Invalid or void at the outset and cannot be altered by any subsequent event,
except the separate solemnization of a valid monogamous marriage
i.e. judgement at time of

proceedings
101
CLASSIFICATION
Classification is then important potentially polygamous or actually monogamous. There is
no clear authority on classification in terms of marriage. It may be:
Lex domicili
Lex loci celebrationis
Lex fora: Lee v Lau
In common law, have two aspects to marriage which require choice of law rules essential
and
formal
validity.
Not recognised
If were, Marriage Act
would not govern
marriages in Australia
In the example above, if applied lex domicili, would have to recognise polygamous marriage
and this cannot be the case.
LEE V LAU [1967] P14
Recognition of
polygamous marriage
see s 88c MA
102
Marriage in Hong Kong could only have 1 wife but could have a number of
concubines
Classification in Hong Kong would be monogamous because it makes a distinction
between concubines and wives
o Nature is that wife not in relationship to the exclusion of all others
If classify according to lex loci celebrationis, valid and domicile would
be valid
Held
o Contrary to what would happen in forum so have to apply law of the forum
o Classification has to be according to the law of the forum forum courts
decide whether marriage is valid or not
o It could not be considered a valid marriage, as the husband could take
additional partners who possessed some legal status
Could not be said to be to the exclusion of all others
o Avoids the problem of importing fine distinctions that foreign laws might make
between monogamous and polygamous marriages
When it is an incidental question to something else, Australia will recognise that. If dont
recognise marriage but the nature of the union it would have a detrimental effect on those
children.
HETEROSEXUAL
?
Intersex persons
and those having had a
sex change operation
CORBETT V CORBETT [1971] BELLINGER V BELLINGER (2002)
103
Bride born male

Marriage when woman who had undergone sex change operation (born male)
Neither of these marriages were declared valid marriages
C AND D (1979)
Annulled for pre-operative intersex person who underwent corrective surgery after
marriage, on the basis of mistake as to spouses sex

Marriage entered into when one of the parties after the wedding went through an
operation to correct the one sex

Court annulled marriage not on the basis of the sex, but on the basis that the other
party was not aware of that
RE WAKIM; EX PARTE MCNALLY (1999) 198 CLR 511 AT 553
McHugh j suggested that marriage now means, or in the near future may mean, a
voluntary union between two people to the exclusion of others
ATTORNEY GENERAL V KEVIN (2003) 30 FAM L R 1
Distinguished above if marriage was post-operative gender reassignment

Recognized the fact that one party physically might not have reflected their actual sex
o Operation merely corrected this
o Persons were of the opposite sex and could be married
An apparently heterosexual union involving a post-operative transsexual or an intersex
person will be recognised as a marriage in Australia, even if it is not recognised as
such in some other place

Held also that c and d had been wrongly decided
S 88EA Marriage Act 1961 (Cth) (Marriage Amendment Act 2004 (Cth) a union solemnised
in a foreign country between:
A man and another man; or

A woman and another woman
Must not be recognised as a marriage in australia.

May recognise that marriage under state law for another purpose. Under the Australian
construct of marriage dont recognise it as that legal relationship. If the union you are looking
at falls within this definition, can ask if it is recognised.
HOMOSEXUAL RELATIONSHIPS AND CIVIL UNIONS
104
Section 51(xxxi) of the Constitution provides that the Parliament shall have power to make
laws in respect of marriage. The Federal government can only legislate with respect to
marriages between a man and a woman, as legislation between two men or women doesnt
fall within pl (xxi) they arent marriages.
States and Territories, for the purposes of their laws, may recognise other relationships eg
significant relationship monogamous homosexual relationship ss 4, 7, 11 Relationships
Act 2003 (Tas). See also Civil Unions Act 2004 (NZ); r 3 Civil Unions (Recognised
Overseas Relationships) Regulations 2005 (NZ).
THE COMMON LAW CHOICE OF LAW RULES
In the process of identifying and applying the choice of law rules relating to a marriage, the
Marriage Act should be consulted first, and the common law rules only applied to the extent
that they are both preserved and permitted by the Act. It does so in two cases:
The validity of a marriage celebrated in Australia before 7 April 1986 is to be

determined in accordance with the common law rules of private international law
o Marriage Act provides some exceptions that, as mandatory rules, override the
effect of the common law rules

The validity of a marriage solemnised overseas at any time is initially to be determined
by reference to the rules set out in Pt VA of the Marriage Act
o If the marriage is not valid according to Pt VA but it would be recognised as
valid under the common law rules of PIL, the marriage will still be recognised
as valid in Australia
Common law rules can save validity of marriage solemnised overseas
There are still exceptions which override the common law rules
Choice of law rules:
Lex loci celebrationis

Two choice of law rules
o One for formal validity
o One for essential validity
BROOK V BROOK (1861) 9 HLC 193 AT 207 8; 11 ER 704 AT 709
Per Lord Campbell LC

o There can be no doubt of the general rule, that a foreign marriage, valid
according to the law of a country where it is celebrated is good everywhere.
But while the forms of entering into the contract of marriage are to be
regulated by the lex loci contractus, the law of the country in which the parties
105
are domiciled at the time of marriage, and in which the matrimonial residence
is contemplated
Formal validity
o Whether religious or civil
o Qualifications of celebrant
o Need for witnesses
o Requirements of notice and registration
o Need for parental consent questionable
Essential validity
o Age qualification
o Relationship by common descent or affinity qualification
o Pre-existing marital status
IF invalid under Part

VA, may still be valid
These common law choice of law rules still apply, but only for marriages entered before 7
April 1986 or potentially foreign marriages.
FORMAL VALIDITY
Formal validity the general rule is that the law of the cause for any issue relating to formal
validity is governed by the law of the place of solemnisation (lex loci celebrationis):
Held that whether a marriage is validly solemnised when one of the parties appears
only by proxy is a question of formal validity: Apt v Apt
For a marriage to be valid must be formally and essentially valid.

If essentially valid, but formally invalid, then marriage is invalid. This is an exception to the
requirement that you have to have formal validity.
If the marriage was made in accordance with the formal requirements prescribed in the place
where it was solemnised it will be valid, so long as the marriage is also regarded as being
essentially valid. On the other hand, if the marriage did not satisfy the formal requirements
106
prescribed in the place where it was solemnised, it will be invalid, even if the marriage is
essentially valid.
The time at which the marriage must comply with the formal requirements of the law of the
place where it was solemnised is the time when the marriage was entered. It will not be
invalid if it met the requirements and then the law subsequently changed so as to invalidate
the marriage. However, if a law change subsequently validates a marriage, this works in
favour of the validity of the marriage.
EXCEPTIONS THE COMMON LAW OR CANON LAW MARRIAGE
Potentially two requirements for recognition of a marriage at common law:
Declaration de presenti a serious and genuine exchange of consent by the man and
the woman to a present marriage

Solemnisation by a priest
Common law marriage requires nothing more than a serious and genuine exchange of consent
by the man and the woman present at the marriage and Mills limited to marriages in England
and Ireland: Catterall v Catterall (1857) 1 Rob Ecc 580; 163 ER 1142. Regarding requirement
of episcopally-ordained priest (a priest ordained by a bishop): R v Millis (1844).
Where marriage not valid at lex loci celebrationis, but satisfies common law marriage in
Australia, will be recognised when:
Impossible to satisfy formal requirements: Savenis v Savenis [1950] SASR 309 cf
Marriage of X (1983) 65 FLR 132

Serving in armed forces occupying lex loci celebrationis
o Reason offered for the rule is that the parties did not voluntarily submit to the
internal law of the occupied place
o Probably just unreasonable to expect occupying troops to be subject to the law
of the place in which they are in belligerent occupation

Conscientious objection usually to religious ceremony required
o If the law of the place where the marriage was solemnised required the parties
to use a particular religious ceremony, it may be sufficient for parties who did
not adhere to that religion to satisfy the requirements of a common law
marriage for the marriage to be recognised as formally valid in Australia
Where the two parties have the capacity to enter into marriage, but in a jurisdiction where it is
impossible for them to get married under the formal laws of that jurisdiction eg requirement
that need to be certain religion. The concept is still used where party cant satisfy formal
validity if satisfies common law marriage, may then recognise formal validity.
107
SAVENIS V SAVENIS [1950] SASR 309
Facts
o Couple wanted to marry in Germany at the end of WWII where the law
required them to get married in a certain format
o Format couldnt be complied with because the registry destroyed etc
absolutely impossible because of destruction in war

o Agreed to get married
Held
o Court recognised that union as a valid union even though there was no formal
validity
o Court fairly strict in doing this
MARRIAGE OF X (1983) 65 FLR 132
Facts
o Couple wanted to marry in Vietnam during the war
o Could have gone and got married but feared being involved with the
government of the day and didnt do that
Held
o The court did not recognise this as a substitute for formal validity
o Still have to satisfy that requirement
o Has to be impossible to satisfy formal validity before recognise at common law
These are the only times can have no formal validity but can recognise the marriage as valid.
ESSENTIAL VALIDITY
The issues which are classified as questions of essential validity are all those which relate to a
persons legal capacity to marry. Two issues remain in doubt:
Reality of consent whether the marriage is void on the grounds of duress, fraud,
mistake or mental incapacity

Physical impediments which, in some places outside Australia, might render a
marriage void or voidable
BROOK V BROOK (1861) LORD CAMPBELL LC
Facts
o English widower and his sister-in-law married while travelling in Holstein
(which the House of Lords thought was in Denmark)
o The parties had the capacity to marry under the law of Denmark, but not under
the law of England, where the marriage offended rules of affinity
108
Held
o Lord Campbell LC
The essentials of the contract depend upon the lex domicili, the law of
the country in which the parties are domiciled at the time of the
marriage, and in which the matrimonial residence is contemplated
o Comment suggests two choice of law rules
Law of the cause for a question relating to the essential validity of a
marriage could be either the laws of the places where the parties were
respectively domiciled at the time of marriage (dual domicile rule)

Law of the places where the parties intend to establish the matrimonial
home (matrimonial home rule)
Dual domicile rule generally followed in Australia that is, where each party is domiciled at
the time of the marriage (including the lex domicilis choice of law rules renvoi.) That is,
when applying domicile of one of the parties, it is quite possible that apply the partys choice
of law rules as well renvoi may come into this theoretically however, unlikely that will
have a conflict of conflict of laws.
Essential validity requires us to apply the dual domicile rule. Debate as to residence
(matrimonial home) as whether that is a second choice of law requirement (mainly in UK)
only require dual domicile in Australia.
Physical/pre-existing impediments
Eg husbands impotence or wifes pregnancy

More easily classified as essential validity to be determined then by that persons lex
domicile
Wilful refusal is more difficult to classify. It relates more directly to what the law regards as a
persons marital responsibility than it does to capacity therefore arguable that question of
essential validity suggestions include:
Law of the forum
o Similar to dissolutions
Lex domicili of the petitioner ie person willing
Whichever gives relief to the person aggrieved
o If either law gives basis to invalidate marriage and party not refusing to
consummate marriage, can rely on either of the jurisdictional laws to invalidate
the marriage
In Australia, a marriage can only be declared invalid if it is void. Usually, wilful refusal in
other legal systems merely renders a marriage voidable and, while that is the case, a court in
Australia must recognise the marriage as valid. If a foreign court annuls the marriage on the
109
ground that one party refused to consummate it, decree of annulment may be recognised in
Australia under rules for recognition of foreign decrees in neither case does a choice of law
rule arise.
Only if foreign place, wilful refusal retrospectively renders the marriage void ab initio that a
court in Australia could consider whether the marriage is invalid and then have to decide
between the law of the forum and the petitioners domicile.
EXCEPTIONS
Essential validity the exceptions the rule in Sottomayer v De Barros.
SOTTOMAYER V DE BARROS (NO 2) (1978) LR 5 PD 94
Facts
o Two first cousins wanted to get married
o He was domiciled in England, she was domiciled in Portgual
o English law doesnt prevent cousins getting married, but under Portuguese law
could only marry first cousin if received Papal dispensation
o She didnt do this and got married
Held
o When considered validity in England she didnt have essential validity
o If the only thing that is missing from her essential validity is the fact she did
not get consent, will override this problem
o Exception is if
The marriage is celebrated in Australia;
One party is domiciled in Australia
The other party is not domiciled in Australia and
Does not have capacity to marry under the law of the place of
domicile but
Would have capacity to marry if domiciled in Australia
And the incapacity relates to consanguinity and can be overcome by
Papal dispensation, that was not obtained
MILLER V TEALE (1954) 92 CLR 406
HCA reluctantly accepted the role in Sottomayer v De Barros (No 2) was law in
Australia, but only applied in cases where such an incapacity can be removed by a
special consent or dispensation (see above)

Still has to be determined in Australia whether a restraint attached to a decree
recognised in Australia on one of these grounds would also be recognised
110
o HCA limited this to cases where the limitation was imposed on both parties to
the decree merely to prevent remarriage before the time period for appealing
against the decree absolute had expired
THE PRESENT CHOICE OF LAW RULES
MARRIAGES CELEBRATED IN AUSTRALIA BEFORE 7 APRIL 1986
Largely governed by common law and aspects of Marriage Act 1961 (Cth) that modify
common law eg common law (canon) marriages solemnised in Australia are not recognised.
Therefore need to distinguish between formal and essential validity. Legislation inserts
essential requirements into this union.
Section 23(1)(c) of the Act precludes recognition of a marriage solemnised in Australia in
accordance with the requirements of a common law marriage, but that did not satisfy the
formal requirements specified in s 48 of the Act.
ESSENTIAL VALIDITY
Generally lex domicili, except:
Marriage Act s 10(1)(b) person must be of age both in domicile and Australia for
essential validity
Where lex domicile would not recognise a divorce, the capacity to marry might be
determined by the lex domicile at the time of the subsequent marriage rather than
initial marriage: Schwebel v Unger
Essential validity is determined by the lex domicili at the time of the marriage. If at that
particular point in time, a divorce which was obtained earlier but the persons new domicile
recognises that divorce, will apply that new domicile.
MARRIAGES CELEBRATED IN AUSTRALIA AFTER 7 APRIL 1986
A marriage entered into in Australia is governed entirely by the lex loci celebrationis after
1986. Validity of marriage solemnised in Australia to be determined by the Law of Australia,
and common law expressly excluded: ss 23A Marriage Act 1961 (Cth).
Doesnt matter what your domicile is, will recognise that marriage as valid. No longer
requires you to consider the essential validity of the marriage in accordance with the domicile
of the parties. Will consider it valid marriage if foreign parties marry in Australia even if the
111
lex domicili doesnt consider it to be valid. If signatory to the convention, that country must
regard it as valid as it is marriage according to the lex celebrationis.
Part III Div 2 only allows a marriage to be declared invalid if:
At the time of the marriage, one party is already lawfully married to someone else
The parties are within the prohibited relationship
The marriage does not comply with the Acts requirements as to form
There was no reality of consent
One party was not of marriageable age
MARRIAGES CELEBRATED OVERSEAS

Overall policy is to favour validity of marriages that are valid overseas. Structure of Pt V
supports this general aim. Pt VA applies to any marriage solemnised in a place outside
Australia and at any time therefore has both prospective and retrospective application.
Marriage Act 1961 (Cth) ss 11, 23A, Part VA
The Acts introduction of lex loci celebrationis means that for marriages entered into
outside Australia
o Will be valid if recognised as valid by either
The lex loci celebrationis OR
The common law rules of private international law
Legislation encourages the recognition of marriages. If our legislation doesnt allow your
marriage to be recognised, allows you to have recourse to the common law.
PART VA MARRIAGE ACT 1961 (CTH)

Section 88A implements Hague Convention (Chapter II). Adopts primacy of lex loci
celebrationis s 88C.
Intention is to make the validity of the marriage entirely dependent on the lex loci
celebrationis. No longer requires you to look at the essential validity of the marriage. This is
different to marriages in Australia s 88C applies to all foreign marriages, if it is valid in a
foreign country it will be valid here.
If marriage is valid at time of marriage according to local law (or at time that validity falls to
be determined) then recognised in Australia as valid, subject only to exceptions in s 88D. If
there is a marriage recognised somewhere else, will recognise it here exception if no real
consent, s 88D(1). Section 88D(2) mirrors Article 23B.
Marriage valid in Australia if the marriage ss 88C and 88D
112
Was at the time it was solemnised, valid under the lex loci celebrationis ss 88C(1)(a)
or, at the time of validity of marriage is being determined, been validated by the lex
loci celebrationis: s 88C(2)(a) AND

The marriage is essentially valid under the law of Australia: s 88D(2) (3)
If void or voidable under the lex loci celebrationis then not recognised MA s 88D(4)
therefore could not grant declaration of validity. The legislation is constructed specifically to
give effect to the lex loci celebrationis.
COMMON LAW GROUNDS OF RECOGNITION
Marriage Act 1961 ss 88E(1) and (2)
Marriage recognised when
The marriage is recognised as valid under the common law rules of private
international law; and

If one party to the marriage was domiciled in Australia, both parties were of
marriageable age
Marriages that do not fall into what is discussed in s 88E can still be validated by the common
law eg formal and essential validity of the marriage.
Common law is therefore still relevant but only where:
Marriage is invalid by the local law because of failure to comply with formalities of
that law, but this might be considered a common law marriage: Savenis v Savenis; OR
Marriage is invalid in some essential validity respect by the local law, but valid in all
other respects by the law of the domicile; OR

Although valid by local law, falls foul of an exception in s 88D, and that exception
does not apply at common law, the marriage being valid at common law
Thus the legislation gives you a second go if cant get recognised under the legislation
where merely gives effect to lex loci celebrationis, can still try under common law which
looks to essential and formal validity, and the common law may fill the gap by applying the
canon law.
Pt VA expressly denies the use of the incidental question method in determining whether a
marriage solemnised in a place outside Australia should be recognised: s 88F. Therefore, if it
is necessary to know whether an overseas marriage is valid to determine whether a woman is
entitled to an inheritance as the testators wife, that is to be determined by the rules of Pt VA
and not the incidental question method, by the law governing the primary question of
succession.
113
GROUNDS OF RECOGNITION
No
If it is valid at local law, it is valid in Australia this is simply what s 88C does. As long as
requirements of s 88D are complied with.
If not married or the local law does not recognise this, the next question is whether it is valid
in Australia. Just because it is invalid in the place obtained, doesnt mean invalidated.
Although may not do so under statute, can do so under common law and may be able to get it
validated because of religious exception that rectifies formal validity. Still require s 88D(2)
which says have to be over 18 this is always required. The one exception is s 88D(3) may
recognise if at the time want to be validated, over 16 even if at the time they were married
they were under 18 (or even 16.)
114
DISSOLUTION AND ANNULMENT

INTRODUCTION
Common law
Foreign Judgments Act 1991
(Cth)
Determined within Australia and outside Australia need to know the law of the domicile.
Every marriage entered into prior to the changes may have a foreign element. Those that postdate legislation do not have this effect.
GROUNDS OF RECOGNITION
Formal validity (lex loci

celebrationis)
Marriages that pre-date legislation are driven mostly by CL but the Act still has some predating aspects. When it is governed by CL there are two choice of law rules formal and
essential validity. The only extent to which the Act changes the CL is in relation to the age of
marriage, wont recgonise marriages where lex domicile allows it to be under 18 years.
After 7 April 1986, domicile plays no part in determining validity only lex loci
celebrationis.
115
Foreign marriage
The legislative scheme in Australia is designed to give couples every opportunity to have their
marriage recognised in Australia. If something prevents it from being recognised under the
statutory scheme, eg no formal validity, then the statutory regime allows you to apply the CL
regime. In place of the CL concept of essential validity, the legislation imposes an Australian
essential validity of marriage by requiring you to not breach certain conditions s 88D.
However, if missing element of statutory scheme, can rely on CL.
DISSOLUTION AND ANNULMENT
Matrimonial causes is a federal issue. It is defined to include proceedings in relation to:
Dissolution of a marriage (divorce)

Annulment of a marriage
Validity of a marriage
Maintenance and property distribution, s 4 FLA
JURISDICTION
FLA does covers 3 things: (i) jurisdiction; (ii) choice of law rules; (iii) when you can
recognise a foreign divorce or a foreign annulment.
FLA has exorbitant jurisdiction and quite readily entertains applications. MA does everything
in its power to have union recognised as marriage, and FLA does everything in its power to
enable people to dissolve a marriage. Recognition of divorces and annulments becomes mirror
image of jurisdiction powers of courts to hear these matters.
116
DISSOLUTION, S 39(3) FLA

On date the application is filed either party is:
Australian citizen
Domiciled in Australia
Ordinary resident and has been for 1 year
ANNULMENT, S 39(4) FLA

On date application is filed either party is:
Australian citizen
Ordinary resident
Present in Australia
CHOICE OF LAW: DISSOLUTION AND ANNULMENT

DISSOLUTION
Common law law of the forum

Ss 48, 51 & 53 FLA law of the forum
o Decree of dissolution can be made even if some or all of the circumstances on
which the decree is based took place outside Australia
Substantive law only one ground for dissolution (12 months continued separation)
ANNULMENT
A decree of nullity must be based on ground that the marriage is void (not voidable)
Determined by applying the relevant choice of law rules for the validity of the
marriage
o Lex loci celebrationis if under s 88
o At CL look at combination of lex loci celebrationis and domicile of the
parties/lex domicilii
RECOGNITION OF FOREIGN DECREES
1970 Hague Convention on Recognition of
The rules
for the recognition in
Divorces
and
Legal
Separations
Australia
(including
Norfolk
Island) of a decree of dissolution or annulment made in accordance with the law of a foreign
territory are set out in s 104 of the FLA.
117
Problems come in with regards to recognition of foreign annulments/divorces. The underlying

legislative intent is to recognise divorces/annulments gives effect to the 1970 Hague
Convention on Recognition of Divorces and Legal Separations.
There are two schemes:
Recognition on statutory grounds, s 104(3)

o Two general conditions must be satisfied
Effected in accordance with the law of an overseas jurisdiction
Requires that it be effected or recognised in the connected place,
not necessarily made there, s 104(8) FLA
o Need not be the result of civil litigation eg talaq or get,
so long as it leads to an effective dissolution or
annulment in a connected place

Party to the decree must have had some personal connection with that
foreign place
o Governs the matter entirely only through s 104(5) that you can consider CL
scheme
Recognition at common law, s 104(5)
o Common law does not operate in cases where it overlaps with the statutory
grounds
o Any restrictions on statutory grounds cannot be used to read limitations into
the effect of the common law rules
o CL does not have the effected requirement must be obtained in foreign
jurisdiction subject to two exceptions
Divorce
effected in
State C
118
In its express terms, s 104(8) only helps when the second place is another overseas
jurisdiction. It does not help when the second place is Australia. However, it might still be
recognised on a statutory ground eg a Jewish divorce in Melbourne is still effected in
accordance with the law of Israel, and therefore, without resorting to the extension of s
104(8) is recognised in Australia on the basis of the parties Israeli domicile.
ARMITAGE V ATTORNEY GENERAL [1906]
This is the
England recognised
NY recognition of SD
divorce, on basis of
domicile (being
England choice of law
rule)
one
exception
and
explains the way the process might work at CL

Facts
o Parties domiciled in NY and obtained divorce in SD
o NY law recognised SD divorce parties had no connection with SD
o SD recognised divorce based on partys presence
o Parties wanted divorce recognised in England
o At time, CL of England said the basis for recognising foreign divorces is
simply the lex domicile
Held
o This case extended the CL principle
o Because the choice of law rule in NY was the same as in England, will
recognise NYs recognition of the SD divorce as long as the parties connection
with NY was domicile
o This idea is entrenched in the legislation
CL only does it in this connection that is, connection between
England and NY is domicile
Section 104(10) means in relation to divorces, annulments and legal separations effected
whether by decree, legislation or otherwise. This captures religious divorces such as talak or
get.
PERSONAL CONNECTIONS WHICH JUSTIFY RECOGNITION
119
For the statutory grounds, the personal connection must have existed at the time the
proceedings for separation, dissolution or annulment were commenced in the foreign place: s
104(1). The common law tends to require this connection also.
PRESENCE
The mere presence of a party to a decree in the place where it was made is not a sufficient
connection with the place for the decree to be recognised on a statutory ground. However, the
effect of Travers v Holley is probably that this will be sufficient at common law.
ORDINARY RESIDENCE
A foreign decree will be recognised under statute if, at the tie proceedings were commenced,
the respondent was ordinarily resident in the foreign place: s 104(3)(a).
It will also be recognised in some cases where the applicant was ordinarily resident in the
foreign place: s 104(3)(b), provided that:
The applicant must have been ordinarily resident in the foreign place at the time
proceedings were commenced

The applicant must have been ordinarily resident in the foreign place for at least one
year immediately before the commenced of the proceedings or the foreign place was
the last place where the parties had cohabited
The rule in Travers v Holley probably has the effect that a foreign decree of annulment will be
recognised at common law if, at the time proceedings were commenced, the applicant was
ordinarily resident in the foreign place.
DOMICILE
A foreign decree of dissolution or annulment will be recognised under statute if, at the time
proceedings were commenced, either the applicant or the respondent was domiciled in the
foreign place: s 104(3)(c).
This is the same at common law.
NATIONALITY
The FLA deems a national of a plurilegislative nation to be a national of all its parts eg a Scot
si deemed to be an English national. A foreign decree will be recognised under statute if, at the
time proceedings was commenced, the respondent was a national of the foreign place: s
104(3)(d). A foreign decree will be recognised under statute in some cases where the applicant
was a national of the foreign place if the following conditions are satisfied:
120
The applicant must have been a national of the foreign place at the time the
proceedings were commenced

The applicant must have a more substantial physical connection with that foreign place
o Sufficient if the applicant had also been ordinarily resident in the foreign place
at the time proceedings were commenced
o Sufficient if the applicant had also been ordinarily resident in the foreign place
for one continuous year falling, at least in part, within the two years before
proceedings commenced
o Sufficient if the applicant had been present in the foreign place at the time
proceedings were commenced and the last place where the parties cohabited
had been another foreign place, and at the time proceedings were commenced,
the law of the second place did not provide for the separation, dissolution or
annulment of marriages
The rule in Travers v Holley probably enables the recognition of a decree of separation,
dissolution or annulment when, at the time proceedings were commenced, the applicant was
merely a national of the foreign place.
STATUTORY GROUNDS OF RECOGNITION
A dissolution or annulment of a marriageeffected in accordance with the law of an overseas
jurisdiction shall be recognised as valid in Australia where:
The respondent was ordinarily resident in the overseas jurisdiction

The applicant was ordinarily resident in the overseas jurisdiction and [additional
requirements of ordinary residence or cohabitation are also met]

The applicant or the respondent was domiciled in the overseas jurisdiction ...
The respondent was a national of the overseas jurisdiction
The applicant was a national of the overseas jurisdiction and [requirements of
substantial physical connection ordinary residence]; or

The applicant was a national of, and present in, the overseas jurisdiction and the
last place of cohabitation of the parties to the marriage was an overseas jurisdiction the
law of which did not provide for dissolution annulment or legal separation
If one of these connections is satisfied with the place that got the divorce or the place that
recognised the divorce obtained elsewhere, will recognise it.
COMMON LAW GROUNDS OF RECOGNITION
Common law scheme is from s 104(5) FLA. Grounds of recognition are:
121
Made in the place of marriage

o Mitford v Mitford [1923] P 130
o Corbett v Corbett [1957] 1 All ER 621
o Merker v Merker [1963] P 283
Made in a place with a real and substantial connection to a party

o Indyka v Indyka [1969] 1 AC 33 (dissolution)
o Law v Gustin [1976] Fam 155 (annulment)
o In the Marriage of Dornom [1984] FLC 91 556 (cf 104(3) FLA)
INDYKA V INDYKA [1969] 1 AC 33
Facts
o Czech woman married to English man
o W lived in Czechoslovakia and obtained a divorce there and simply wanted
that divorce recognised in England
o Problem was the English CoL rule for recognition of divorce was lex domicili
had to be divorced according to law of domicile
o In 1969, married women followed domicile of husband so she had an English
domicile even though living in C

Held
o If English choice of law rule is lex domilcii, has to be divorced according to
law of England
o As soon as court recognised this saw problem with applying this rule
o New rule place by which person who seeks to have divorce recognised has a
real and substantial connection with the place that gave them the divorce
o Will recognise divorce so long as you obtain it from a jurisdiction where you
have a real and substantial connection
o Domicile may be real and substantial connection, but could be somewhere else
o This has been extended at CL so not only will we recognise a divorce obtained
in a place where you have a real and substantial connection but if the place
where you have a real and substantial connection recognises a divorce you
obtained in another jurisdiction, will also recognise that divorce
o Like Armytage but dont require domicile, just real and substantial connection
Recognised in a place with a real and substantial connection

o Mather v Mahoney [1968] 3 All ER 223
o Messina v Smith [1971] P 322
Made in a place exercising a reciprocal jurisdiction
122
o Circumstances enabling a court in Australia to hear and determine proceedings

for dissolution and annulment are deemed to allow a foreign court to exercise
such a jurisdiction, and such decrees recognised
o Travers v Holley [1953] P 246
o Robinson-Scott v Robinson-Scott [1958] P 71
TRAVERS V HOLLEY [1953] P 246
Facts
o
o
o
o
Woman in NSW and husband deserted her

H had English domicile and returned to England
Wife sought to have divorce in NSW
NSW had legislation (to overcome CL problem) which allowed wife who had
been in jurisdiction for 3 years and had been deserted to obtain divorce
o NSW readily divorced
o When wanted to have divorce recognised, England said their rule for
recognition of divorce was lex domicli womans domicile followed
husbands domicile
o Divorce not in accordance with law of England, in accordance with law of
NSW
o English legislation had exactly the same exception as in NSW
Held
o On the basis that England had the same exception to the rule as NSW did, the
English court recognised the NSW divorce eg reciprocal jurisdictional
capacities
o This effectively became the CL rule
o As long as have reciprocal basis for recognition, have recognition of divorce
and annulment
123
o The foreign court need not have assumed jurisdiction on the same legal ground
as the forum court could
The circumstances before the foreign court need only be such as would
permit the forum court to exercise jurisdiction
o This rule also applies to annulments
o Irrelevant that the forum court did not have jurisdiction to determine similar
proceedings at the time the foreign court made the decree: Indyka v Indyka
o Do not have to have reciprocal substantive grounds it must be reciprocal
jurisdiction
ROBINSON-SCOTT V ROBINSON-SCOTT [1958] P 71
Court in Zurich granted wife divorce assuming jurisdiction on the ground of domicile
(as the concept was understood in Switzerland) because under Swiss law she was
taken to be domiciled in Zurich

Decree recognised in England, even though under the law of England, the wife was
domiciled in England
Husband had deserted her and she had lived in Zurich for at least three years before
applying for the divorce

If such proceedings had arisen in England, a court could also have exercised
jurisdiction in proceedings for dissolution
MOUNTBATTERN V MOUNTBATTERN [1959] P 43
Refused to recognise
NY recognition on
basis of reciprocity
(only on basis of
domicile)
Facts
o Similar to Armitage, couple in NY but merely resident in NY for 3 years and
got a divorce in Mexico
o Mexican divorce recognised in NY in Armitage, NY recognised SD divorce
o Question was at CL will England recognise the divorce obtained in Mexico b/c
it was recognised in NY
124
In Armytage the court said will recognise it if the basis which the
parties had connection with NY was domicile

Extended to real and substantial connection
Here no real and substantial connection nor domicile only residents
for 3 years
Held
o Refused to recognise divorce
If merely recognition of divorce obtained in 3rd jurisdiction, require
either domicile or real and substantial connection
o Authority for real and substantial connection was Indyka she was a Czech
national
Residence for 3 years is probably insufficient as Indyka interpreted it
If resident in NY and divorce obtained in NY there would have been no
problem of recognition
o CL structure narrower if trying to get divorce obtained by 3rd jurisdiction
o Would be reversed if the rule in Travers v Holley and s 104(8) were combined
UNRECOGNISED DECREES
On the basis that:
A party to the marriage has been denied natural justice

Recognition would be contrary to public policy
Decree does not comply with the law under which it was made
o This is more controversial it is unlikely the court will consider the law that
the foreign court applied
Ss 104 (4) (5); Igra v Igra [1951] P 404; Re Meyer [1971] P 209;
PEMBERTON V HUGHES[1899] 1 CH 781
English court of Appeal held it would not investigate the propriety of the proceedings
in the foreign court

Stated this principle on the assumption that the matter before the foreign court was one
with which it was competent to deal
125
CONTRACT
DETERMINATION OF THE PROPER LAW
Contract is a product of the will of the parties and is intended to create legal rights and
obligations with reference to some legal system which is the proper law of the contract.
The proper law of the contract is:
the system of law by which the parties intended the contract to be
governed, or, where their intention is neither expressed nor to be inferred from
the circumstances, the system of law with which the transaction has its closest
and most real connection
Dicey & Morris
The system of law by which the parties intended to be governed is by including a choice of
law clause this is the subjective approach. The alternative is the object of determination or
objective approach. The proper law of the contract is the Australian choice of law rule of
contract. The relevant time for determining the precise content of the proper law is the time
when proceedings inr elation to contract are commenced.
LEGISLATIVE INCURSION ON THE PROPER LAW
Legislation has superseded certain contracts, and will state the substantive law which cannot
be contracted out of.
International carriage of goods by sea

International sale of goods
Insurance
Hire purchase
Consumers sales
CONTRACTS
The framework of public international law the assumption that a proper law must be a
municipal law: Shamil Bank of Bahrain v Beximco[2004] 2 Lloyds Rep 1. Though may
contain terms of a contract derived, eg from Sharia law though still referenced to some
municipal system of law. They would only be incorporated into the contract merely as a term,
subject to the proper law of the contract whether express or implied. Proper law must be the
law of a legal entity.
CLASSIFICATION
Contract and contract related claims these are not based on the contract itself, but so closely
connected that they are governed by the contract:
126
Quantum meruit
Direct actions against insurers under compulsory third party insurance schemes
Actions for indemnity: Sweedman v Transport Accident Commission [2006] HCA 8
Assignment of benefit of insurance contract
RAIFFEISEN ZENTRALBANK OSTERREICH AGC V FIVE STAR GENERAL

TRADING LLC
Shipowners
(Dubai)
Insurers
Insurance contract
(France)
(English proper law)
Assignment (governing law?)

Bank
(Austria)
Facts
o Assignment of benefit of insurance contract between ship owner (Dubai) and
insurers (France)
o Contract indicated that the contract was to be governed by the law of England
even though the parties were not English and the contract had nothing to do
with England
o Ship owner assigned rights under insurance contract to Austrian bank
o Question what rule governed the assignment of rights under the contract
Held
o The assignment of rights was so connected to the contract as to be governed by
the proper law of the contract
o Because parties chose expressly for law of England to apply to contract
RENVOI
No renvoi where parties have chosen proper law, assume that they have chosen the internal
law. Doesnt seem conceivable that parties would choose a legal system to govern their
contract knowing that jurisdiction would send you onto another jurisdiction.
Neilson v Overseas Projects Corporation of Victoria Ltd suggested that renvoi is an issue
which needs to be taken into account in a range of PIL issues including contract. WASC
picked up on this issue in ODriscoll v J Ray McDermott SA.
ODRISCOLL V J RAY MCDERMOTT SA [2006] WASCA
127
Choice of law limitation

period as substantive
Contract between parties in WA and Singapore, and choice of law for contract was the
law of Singapore
o It was the law with which the contract had the most real and substantial
connection
Issue came up whether limitation period ought to be applied
o Following Neilson and Pfieffer, limitation periods are substantive
o If choice of law is Singapore, Singaporean limitation period should apply
Because we consider limitation periods to be substantive, we also apply
Singaporean choice of law rules
No conflict arose
Raises the possibility that renvoi and choice of law rules may be
a pertinent issue
The courts method plainly rests on the assumption that the doctrine of renvoi was
applicable in the case (and so, at least, anywhere the proper law is to be objectively
determined)
AKAI PTY LTD V THE PEOPLES INSURANCE COMPANY LTD (1996) 188 CLR 418
Two-tiered approach
o Subjective proper law
Express choice
Implied choice
o Objective proper law
THE SUBJECTIVE PROPER LAW

EXPRESS CHOICE OF PROPER LAW
The common law recognises that, at the time a contract is made, the parties may provide that
the contract is to be governed by the law of a particular place: Gienar v Meyer.
VITA FOOD PRODUCTS INCORPORATED V UNUS SHIPPING CO [1939] AC 277
128
Choice of law recognised provided the intention expressed is bona fide and legal, and
provided there is no reason for avoiding the choice on grounds of public policy
Bill of lading goods from

Nova Scotia to New York
Facts
o Nova Scotia ship owner and NY consignee
o Choice of law in the contract itself was English law
o Contract also contained a term which exempted the ship owner from liability in
negligence
o The ship ran aground on the way to NY and was stuck there for some time and
the cargo of fish was damaged
o Consignee sued for negligence
Ship owner raised defence of exemption clause in the context that
English law would give effect to the exemption clause

Held
o NS court said the contract has nothing to do with England but the court was
willing to give effect to the contract and the choice of law clause
If the English court recognised the contractual exemption as valid, the
court would give effect to that
o The law chosen by the parties will be the proper law of the contract provided
the intention expressed is bona fide and legal
LIMITS TO AN EXPRESS CHOICE OF PROPER LAW

1. Bad faith (debatable)
o May be that the court will not respect your choice if you choose in bad faith
might apply law of the forum or objective approach
o Golden Acres Ltd v Queensland Estates Pty Ltd [1969] Qd R 378; (1970) 123
CLR 418
One party to the dispute had tried to establish an estate agency in Qld without
registering themselves under Qld legislation
Indicated choice of law was meant to be the law of Hong Kong
Two matters arose
129
Fact there was Qld legislation that required them to be
registered
Choice of law clause was such to avoid Qld legislation, and thus
was in bad faith

Legislation was overriding in any effect it becomes paramount and overrides degree
to which the choice of law governs that issue
Normally point 3 which captures point 1, difficult to imagine
where bad faith stands on its own
2. Unconnected law (debatable)
o Some states require a connection with that State
o Not required in Australia and the UK
o The courts are only likely to be looking for a reason not to apply an
unconnected law when the effect of enforcing the choice would be a result
outrageously offensive to the legal or moral standards of the forum
3. Overriding legislation
o To the extent that contract does not infringe certain legislation, can apply
choice of law
o Eg s 11 Carriage of Goods by Sea Act 1991 (Cth) complete
o Eg Trade Practices Act 1974 (Cth) partial
4. Public policy
o If giving effect to choice of law contrary to public policy, a court will not give
effect
IMPLIED CHOICE OF PROPER LAW
Implied from contractual terms such as:
Choice of forum
Arbitration clause
Technical language eg if contract framed using language common to a particular
legal system, indicates parties wanted their rights and duties interpreted according to
that system
By themselves, they may not be sufficient, but together they may show a stronger intention.
These are not limited, so there may be a range of factors which show what the choice of law is
going to be.
See Compagnie DArmement Maritime SA v Compagnie Tunisienne De Navigation SA[1971]
AC 572
130
THE OBJECTIVE PROPER LAW

The objective proper law is the legal system with which the contract has its most closest and
real connection its seat. The terms of the contract as a whole and the circumstances
surrounding it at the time it was formed, must be taken into account. Factors include:
Place of contracting (lex loci contractus)

Place of performance
Place of residence or business of parties
Nature of the subject matters (eg immovable property)
Currency of payment
Flag of vessel carrying goods
If the parties subjective intention cannot be determined, only then do you objective determine
what the proper law of the contract is. To this list can add choice of forum, arbitration clause
etc.
Two problems arise:

1. Possibility of distinguishing between an implied choice and a place with the closest
and most real connection
2. Evenly balanced factors as to the latter uncertainty that the formula has brought to
the objective determination of the proper law and the associated difficulty in
predicting what it would be without resorting to litigation
o James Miller& Partners Ltd v Whitworth Street Estates (Manchester) Ltd
JAMES MILLER& PARTNERS LTD
(MANCHESTER) LTD [1970] AC 583
WHITWORTH
English law matters

of law to be referred to
English court
Facts
131
STREET
ESTATES
o Scottish builder entered into contract to renovate property in Scotland owned

by an English company
o Used a standard form contract (English contract) produced by the Royal
Institute of British Architects
K provided that when a dispute arose, the President of the RIBA would
appoint an arbitrator
o Dispute did arise, President appointed an arbitrator in Scotland and began
arbitration according to Scottish law
o Got to a point where needed to clarify issues of law
Scottish law required arbitrator to do this but English law required a
court to determine
Held
How proper law is determined

Subjective
proper
(implied choice)
English law
Viscount Dilhorne
law Objective proper law
If not
Scots law
Lord
Hodson
Lord Guest
Lord
Reid
Lord Wilberforce
o Four judges thought it was impossible to infer the intention of the parties
English standard form contract most real and substantial connection
with England
Building in Scotland, Scottish arbitrator, one party Scottish builder so
Scottish law should apply

o Viscount Dilhorne
Thought because the parties chose an English insurance contract, must
have intended English law ought to apply

Acknowledged that if this was not the case, would have considered
Scottish law to have the most real connection

o Thus the decision turned on whether Dilhorne though the contract inferred
intention
o Opposite result would have been reached if he had decided differently on the
question of whether it was a case of implied choice or closest and most real
connection
CHANGE OF PROPER LAW
Every contract needs to have a proper law at the time the contract is entered into. Can proper
law float? Three situations:
132
There is no provision for the proper law, but on the happening of a given event
the law of State A is the proper law
o Problematic because no proper law at the time the contract was entered
The law of State X is the proper law, but on the happening of a given event the
law of State Z is the proper law
o As long as indicate what the proper law is to be, thats fine
Some time after the contract has been formed, the parties agree expressly that the
law of State Y is now to be the proper law
o No problem when parties enter into a contract and failed to express what the
proper law was and then somewhere down the line they realize they have failed
and agree what the proper law is to be
THE ARMAR [1981] 1 ALL ER 498
Doubts as to the first proposition contract requires, at the start, a proper law
Proper law attributable at the time the contract made
o A contract has to have a proper law at the time it is made, and the attribution of
a proper law to a contract could not be made dependent on a contingency that
may or may not subsequently occur
MULTIPLE PROPER LAWS

More than one proper law of the contract may appear to exist three situations:
1. True depeage ie to divide
2. Incorporation
3. More than one contract
DEPEAGE
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 BANKERS 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
133
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
FORMATION AND PERFORMANCE

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
134
GENERAL PRINCIPLES
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 LLOYDS 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
Consideration - objectively determined putative proper law
Reality of consent uncertain but likely to be putative proper law
135
PERFORMANCE
GENERAL PRINCIPLES
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 Compaia Naviera Sota y Aznar.
RALLI BROS V COMPAIA 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 depeage
Contract will be governed by the law of England, but the extent
of performances 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
136
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 Lloyds Rep 98, 114
Euro-Diam Ltd v Bathurst [QB] 1, 14
SPECIFIC CONTRACTS
Carriage of Goods by Sea Act 1991 (Cth)

Insurance Contracts Act 1984 (Cth)
Sale of Goods (Vienna Conventions) Acts
Trade Practices Act 1974 (Cth)
REFORM
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
137
TORT
INTRODUCTION
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.
RULE OF JUSTICIABILITY OR CHOICE OF LAW RULE?
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 Hadnt 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
138
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
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 couldnt 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
139
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 Dont have to satisfy law of forum and lex loci delicti, only lex loci
delciti
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?
140
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.
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
TORTS AND RENVOI

NEILSON V OVERSEAS PROJECTS CORPORATION OF VICTORIA LTD (2005) 221
ALR 213
China
141
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
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 dont 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
Doesnt 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
laws choice of law rules and you dont 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
142
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 RULE

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?
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
143
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 SPECIFIC ISSUES
Civil
wrong
SURVIVAL OF ACTIONS & WRONGFUL DEATH
Plaintiff dies before matter

resolved
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
144
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 DEATH
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

INTERSPOUSAL IMMUNITY
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
INDEMNITY
SWEEDMAN V TRANSPORT ACCIDENT COMMISSION [2006] HCA 8
Held: indemnity not classified as

tortious (NSW) but as quasicontractual proper law
objectively determined (Victoria)
NSW resident
Victorian
resident
Facts
o Particularly problematic where no fault compensation schemes
o NSW resident injured a Vic resident in NSW
145
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 DEFENCES 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 cant 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.
146
PRIVATE INTERNATIONAL LAW
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INTRODUCTION TO PRIVATE INTERNATIONAL LAW