2. Jurisdiction in Private International Law
Juris – e.g inferior courts may have monetary limits yet we look at it in terms of whether a particular D is subject to the power/authority of the court.
Personal juris to be more exact is about where a court may exercise its authority over another (be it a corp or individual). All courts in Aus use same rule.
Must have regard to CL and statutory juris.
(a) COMMON LAW
(i) Territorial jurisdiction based on defendant's presence
This is the presence in the territory or the D’s voluntary submission only. Other legal systems e.g in France the fact that D is a citizen confers juris, in Germany if assets are owned there then this is enough.
Of course will still need to consider ownership of assets to ensure that decision will be enforced.
So ownership of assets in NSW is not a basis for juris.
Original test is if they may be served with the courts originating process.
At what time must the service be effective. Personal presence at time of service is sufficient.
Presence at some other time e.g when action occurred is not sufficient.
*Gosper v. Sawyer (1985) 160 CLR 548 Court – Ordinary basis of territorial juris is personal presence.
Laurie v. Carroll (1958) 98 CLR 310
Facts – Proceeding commenced in VICSC, where D & P entered into commercial agreement for tour of Australia of Margot Fontaine. Parties have a commercial dispute where D is a resident of England and goes to see solicitor in Victoria and is told to leave as proceedings are being commenced in Vic (13/6/57). On (14/6) P commenced proceedings. An order for substituted service was made as personal service was impracticable where court had juris as proceeding had been commenced. (Varying views as to whether critical date was day of service or not)
Court - Q whether presence in territory before time of proceeding is not a basis for jurisdiction. If D present at court on date when proceedings commence in court yet D leaves before service in an attempt to evade service (subjective test yet can be held to have constructive knowledge) then court will allow for substituted service.
*Joye v. Sheahan (1996) 62 FCR 417
Explains what was decided in L v C.
Facts – Position of person who was a transit passenger through NSW on day on issuance of originating process. J was in Aus on day of issuance of OP on 6/12/1994 and J could not be found and left aus on 13/12/1994.
Court – More is needed than just presence, it is also intention to evade service. Knowledge of J on day of summonse and subsequent escape imputes intention to evade service thus there may be substituted service.
*HRH Maharanee of Baroda v. Wildenstein  2 QB 283
Facts – P was an Indian princess living in France who purchased a painting from Wildenstein as an original work of art. Painting was found to be a fake so M looked to rescind K and get refund of purchase price. M sought to commence proceedings in English HC yet W was not present in E. One day each year W went to England to see the Ascot races so on this day he was served with the originating process to establish CL juris.
Court – service was effective despite W having no other relation with E, this was sufficient to confer CL juris on E courts. (in order for stay of proceedings W would have to prove the proceedings were vexatious or oppressive which is negatived by a legitimate personal/juridical advantage. This was due to the inordinate delay in French courts (yet was it up to the P to argue that it wasn’t vexatious as in proof of law matters there is an assumption that it is the same). Real reason why brought in E was that whether the remedy was available for rescission was a procedural matter to be determine by forum. “service of the OP on D during a fleeting visit to the forum is sufficient to establish CL juris. Yet under FNC the court may decline to exercise juris if D demonstrates that the proceedings would be vexatious and oppressive (or otherwise an abuse of process of the court) and a stay of proceedings would not constitute an injustice to the P”.
No physical presence. Corp. Is regarded as being in territory if it carries on business there.
*National Commercial Bank v. Wimborne (1979) 11 NSWLR 156
Must be a fixed and certain place and have taken place over a certain amount of years (if foreign corp. Is carrying on business in Aus then must be registered as foreign co under corp. Act and nominate an agent for purposes of service etc).
(ii) Jurisdiction based on defendant's submission
What constitutes a voluntary submission?
Appearance which waives any objection to juris
Contests in any way the merits of the claim (Vertzyas)
Agreement (common). Commercial K’s almost always have an exclusive jurisdictional clause (must be express and not implied from other terms of the K)
*The Messiniaki Tolmi  1 Lloyd's Rep 266 (Materials, p 1)
Goff J., A VS is willingness by D to be bound by the courts submission.
*Vertzyas v. Singapore Airlines (2000) 50 NSWLR 1 (Materials, p 3C)
D raised merits of claim without defending claim so was treated as submission.
Facts – V was a Greek resident and on plane to Greece was injured by turbulence and sought to bring a claim in NSW (normally governed by Warsaw Convention yet WC also sets out the places where a passenger can bring a claim e.g. ultimate destination etc which NSW was not). SA filed a notice of defence without filing an appearance.
Court – bringing in issue the merits of a claim is acknowledgement of the claim and constitutes an appearance/i.e objection (can say we object to juris but if fails then do not submit).
Dunbee v. Gilman & Co (Australia) (1968) 70 SR(NSW) 219
Must be express and not implied term
Facts – commercial K with term that said K was governed by English law (proper law for all substantive issues). D is not present in England and originating process served on D in NSW saying long arm juris in K case where governing law is English.
Enforcement of foreign judgements under Aus PIL rules if the foreign court exercises juris in the international sense (only if exercised CL juris in the same way as NSW i.e. submit to juris or present in territory).
Issue – was D present in E (no), did they submit to juris (no)
Court – K only said governed by juris and not E is the juris. They have only agreed upon E law which could have been exercised in a NSW court.
Objection to jurisdiction
This does not amount to a voluntary submission.
*Uniform Civil Procedure Rules 2005 (NSW) r 12.11
If D objects to juris or its exercise then it doesn’t constitute a voluntary juris.
Objection can be:
To existence of juris (say not present/not submitted)
To exercise of juris (i.e. to not exercise juris as prior case law said that if solely object to juris and not successful then this is an automatic submission). Justification is that previously there was no option.
(b) SERVICE OUT OF THE JURISDICTION
Must be a statutory basis for this.
(i) General considerations
Service within Australia
*Service and Execution of Process Act 1992 (Com) s 15(1) (Materials, p 4)
Replaced service and E of P act (1901).
(Expand service intranationally)
Originating process of every state and territory court may be served outside Aus (makes Aus one country for service purposes).
McEntee v. Connor (1994) 4 Tas R 18
Facts – tort alleged to have been committed in Japan onboard aircraft while on ground. Tas originating service served on D in WA. In L v C, person is subject to juris if lawfully served.
*Uniform Civil Procedure Rules 2005 (NSW) rr 11.1, 11.2 (and Schedule 6), 11.3, 11.4, 11.7
Part 11 – special provision made in tort cases para a), d) and e) for outside Australia.
2 grounds – committed in NSW a) & d) or some tort damage in NSW e).
Prior leave of court is not required before service is made outside aus (since 1988). View before as extra-territorial sovereignty of state (yet FC does require leave of court prior to service outside Australia).
If D is served with OP but doesn’t appear then under 11.4 the P must obtain leave of court to proceed to grant default judgement ( doesn’t say what P needs to then prove to the court (agar v Hyde)