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.
Individuals
*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 [1972] 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”.
Corporations
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
Foreign D.
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 [1984] 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.
Court -
*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)
*Agar v. Hyde (2000) 201 CLR 552
In order for P to obtain leave of court to proceed it is necessary for P to demonstrate that P’s statement of claim as proceeded falls within 11.6.
Facts – Case where there was catastrophic injury during rugby game in NSW. P commenced action against international rugby board. Most obvious juris would be under part e for damage. Yet tort was negligent in framing of the rules. So tort may have been in England.
Issue – what does P have to demonstrate for order to proceed, (take as true all assertions of fact on SOC, then see if juris under UCPR so all it needs is that case is pleaded at least under one of the para’s). Court may decline to authorise juris in addition to forum non conveniens etc where D claims objection at interlocutory stage and proceedings may be permanently stayed if P has no reasonable prospect of success at trial.
Court -
D served, does not turn up
P playing rugby in NSW, suffered personal injury, seeking to sue International Rugby Board – based in the UK
Alleged negligence – failure to take reasonable care to change the rules of the game
Court – nature of the claim had to be based on the ground from the rules, not the strength of the claim, but the very nature of the basis of the claim
Three basis to set aside
Nature of the allegations – does not fall under Schedule 6
Not in the proper forum
If claim had insufficient … success to warrant the defendant to show up
Prima facie entitlement to proceed – but the court retains the residual discretion to deny the leave to proceed
Substituted service
What if service cannot be affected personally outside Australia?
*Australian Securities and Investments Commission v. Sweeney (No 2) (2001) 38 ACSR 743 (Materials, p 8A)
Facts – S was a NSW barrister, wanted for insider trading in breach of corporations law, he left town before proceedings were issued – went to NZ 1 day before service was effected. Steps taken to bring statement of claim to him by ASIC – served his old chambers, solicitors in NZ, mailed to address for him – he couldn’t be physically be found to hand him the papers. ASIC seeking injunction against S (where OP may be served under UCPR).
Issue - Can the court order substituted service to the d? Answer: yes
Court – Austin J., Where the originating process of NSW court can be served outside based on the court rules, the court can order substituted service – even though defendant was not in the state at the time of the originating process (substituted service may be by any means which may bring action to his attention).
(ii) Tort cases
*Uniform Civil Procedure Rules 2005 (NSW) Schedule 6 paras (a),(d),(e) (Materials, p 5)
Tort committed (cause of action arising) in New South Wales
Service outside Australia
allowed by Schedule 6
how determine where tort been committed
*Distillers Co (Biochemicals) v. Thompson [1971] AC 458
Distillers
Sleeping tablets used that caused deformities’
Where did the rot occur
P is NSW resident, purchased pills in NSW
First D is English company, got it from German manufacturer
Second D – markets and sells pills in Australia
Alleged negligence – failure to warn goods be harmful to woman pregnant in first three months pregnancy
Where did the tort occur?
Three possible approaches
Where the entire action occurs in the jurisdiction
Last ingredient for cause occurs in jurisdiction
Act on part of the D gives the P the cause of complaint occurs in the jurisdiction
Preferred choice
The essence of deterring where the tort has been committed – where in substance did the tort arise, look back at the history
Tort in NSW – lack of communication about the danger – warnings could have been given on packaging in England, warnings could have been made in NSW, cause of action happened in NSW
Buttigeig v. Universal Terminal & Stevedoring Corp [1972] VR 626
Facts - B was wharf labourer in Melbourne, injured when fell through sheet of flooring docked in Melbourne negligently placed on hull of ship. Commenced proceedings in Melbourne in negligence against occupiers of ship, and NY based Stevedore Company, and Melbourne port authority. NY company wanted to set aside service. B sought to invoke extraterritorial juris in Melbourne. Arg that failed to warn of negligent act (like distillers) but held to be artificial, thus instead said it was the act of negligently laying the floor in NY as place of tort.
Court - cause of action in negligence arising in incorrect stowing and covering of the whole
Occurred in NY
To extend negligence to provide warning sign in Melbourne would be unreal
Judge granted leave to set aside service
Tort not under Victoria rule
Converse of Distillers case
Fraud/Misrepresentation
Seek to identify the act which gives complaint at law. It is the communication of the representation thus where it is received so it is not necessarily the place where acted upon.
Diamond v. Bank of London & Montreal [1979] 1 QB 333
Facts – D (Bahamas bank) and P (diamond, a sugar seller) and P concerned about financial trustworthiness of the counterparty. Statement made by D and telex subsequently sent and received in England.
Issue – where was the tort of misrepresentation made.
Court – it is where it is received (voth v Manildra mills)
Diamond
Fraudulent misrepresentation
Proceedings by P, London commodity broker, against D, bank in Bahamas
P in negotiations to buy 1million tons sugar for European buyer from US firm
Turned down other alternative suppliers
Deal fell through – lost $2million commission
D given assurance to P that there was seller of sugar ready to complete sale by telex
Sugar didn’t exist
Transaction not completed
Q: English COA, tort of fraud committed where message received and acted upon, not where message sent
Took place in the UK
Writ could be served outside jurisdiction
*Dow Jones & Co v. Gutnick (2002) 194 ALR 433 (Materials, p 15A)
Down Jones
Defamation
Internet place – received and downloaded
Defamation is place where the item is downloaded
Court: defamation has to be damage where the reputation has occurred, where the material is available in a comprehensible form – where the material is downloaded
Tort damage suffered in New South Wales
Para e) part 11, schedule 6 UCPR usually covers this. E) Normally means any tort damage.
*Brix-Neilsen v. Oceaneering Australia [1982] 2 NSWLR 173 (Materials, p 16)
Facts – off East Timor a professional diver (P) experiences personal injury and sues employer. D arg that damage under para e).
Court -
(iii) Other cases
*Uniform Civil Procedure Rules 2005 (NSW) Schedule 6 paras (b), (c), (g), (h), (j), (n) (Materials, p 5)
(c) DISCRETIONARY NON-EXERCISE OF JURISDICTION
“[T]he court has an inherent jurisdiction to grant a stay, whether permanent or temporary, whenever this is necessary to prevent injustice.”
May decline if proceedings are brought in NSW in breach of foreign exclusive juris clause
Forum non-conveniens
Evers v. Firth (1986) 10 NSWLR 22 per Samuels JA
(i) Foreign jurisdiction clauses. Where the plaintiff commences proceedings in New South Wales in breach of an exclusive foreign jurisdiction clause (an agreement to litigate only in a particular foreign court or foreign country), the New South Wales court may, on application by the defendant, grant a permanent stay of the proceedings unless the plaintiff demonstrates “strong cause” why it should not do so. Whether a foreign jurisdiction clause is exclusive is a question of construction of the contract.
So Q of whether there is a K r/ship b/w the parties.
Where there is an exclusive foreign juris clause (agree only to litigate in courts of a certain area) and P commences proceedings in NSW then D may apply for a permanent stay of proceedings which may be granted.
If parties had included a non-exclusive juris clause then only have a voluntary submission and not exclusive. E.g. term in K that qld court has jurisdictional competence. (Yet doesn’t this serve as a restraint of trade).
Agreement on exclusive foreign jurisdiction?
Must apply for a permanent stay of proceedings if file action in court other than that mentioned in exclusive clause.
*FAI General Insurance Co v. Ocean Marine Mutual Protection and Indemnity Association (1997) 41 NSWLR 117 (Materials, p 22A)
Principles relevant to exercise of discretion
*The Eleftheria [1970] P 94 (Brandon J) (Materials, p 22I)
Court – will take into account factors such as bulk of evidence, whether the transaction is bound by certain law e.g sale of French snails which are normally regulated by French courts, is it a genuine application, will P be subject to prejudice/disadvantage in the exclusive juris court etc in claim that German exclusive juris clause for case in English courts.
Material change in circumstances
*Carvalho v. Hull, Blyth (Angola) [1979] 1 WLR 1228 (Materials, p 23)
Facts – material change in circumstances in the exclusive juris. C was a long time resident in Angola and sold business to English co which also had a presence in England with purchase price to be paid in instalments and last one not paid. Civil war in Angola with a substantial change in the legal system. Where in the event of litigation the exclusive court was that of Angola.
Court – material change in circumstances (no suggestion that there is nothing inferior in courts of Angola). In 1973 the judges were all portugese judges with portugese law and later mixture of indigenous and Marxist law also right of appeal had been removed.
Quality of justice in the foreign court?
*The El Amria [1981] 2 Lloyd’s Rep 119 (Brandon LJ) (see Materials, p 22J)
Facts – P arg that justice administered in English courts was inferior to that of English courts. This was against the idea of comity and so needed substantial evidence.
Court – it is inappropriate in an application for a stay of proceeding to caste dispersions on the quality of justice of a foreign court.
(ii) Forum non conveniens ("clearly inappropriate forum"). Local proceedings oppressive (seriously and unfairly burdensome, prejudicial or damaging) or vexatious (productive of serious and unjustified trouble and harassment). Factors relevant to the exercise of the court’s
discretion: the relative convenience and expense to the parties of litigation in the forum or in a foreign country, including the availability of witnesses; whether the lex fori or foreign law is the applicable substantive law; the respective places of residence of the parties; whether a stay of proceedings will deprive the plaintiff of a legitimate personal or juridical advantage in the forum; in cases of service outside Australia, “clearly inappropriate forum” = “inappropriate forum” in r 11.7. Onus on the defendant to demonstrate that the forum is clearly inappropriate
Aus court will decline to recognise juris if D (onus is on D) says proceedings are oppressive or vexatious. Definitions by Dean J., and accepted in Voth v Manildra flour mills.
Aus courts will rarely grant vexatious proceedings.
Inappropriateness of the jurisdiction invoked by the plaintiff
Egbert v. Short [1907] 2 Ch 205
Facts – E was a US citizen living in India. Alleged by E that S had acted in breach of trust. D was an British expat who returned to England on holiday that was served on last day in E.
Court – no legitimate connection with England and as S had to carry on practice in India so said there the case was only brought to be vexatious i.e to harass the D.
Puttick v Tenon [2008] HCA 54
Facts - Lung disease of Mr P and died so spouse brought proceedings. P employed by T sent to Malaysia and contracted mesothelioma so launched action against T. T was under CL juris of Vic as multinational corp.
Court – just because foreign law is the applicable law doesn’t mean that an Australian court is clearly inappropriate. VICSC said place where tort was committed was NZ yet normally say act was where act that gives rise to cause of complaint. Court said this was of employer’s failure to warn P of danger when visiting Malaysia.
Court – VICSC did not have enough facts to determine where the tort took place. Technique that even if NZ was COL then VIC would not be an inappropriate forum so to turn P away from VIC would mean they would have no remedy.
*Voth v. Manildra Flour Mills (1990) 171 CLR 538 (Materials, p 34)
Applied and accepted Deane J., decision in (O v F)
Facts – D was an accountant carrying on business in Missouri. P (M) had North American subsidiary for which V was their accountant and gave negligent tax accounting services. Thus P suffered pure (only) economic loss in NSW (which is a loss different to that of Renault or Oceanic where these P’s would be seriously disadvantaged and could be a life and death matter as opposed to PEL (only 1 successful application of FNC in AUS for personal injury). NSWSC has personal juris due to tort damage economic loss in NSW under UCPR e). V had membership of accounting association which was at risk thus applied for a stay of proceedings.
Issue – whether forum invoked by P is clearly inappropriate? So may apply the lex causae (law dealing with particular COA). Accountant had significant connections (in 1990 would have to be actionable in Missouri and also not condoned there).Negligence was in connection with US tax law advice and greater part of evidence was in Missouri. Connections with NSW – loss entirely in NSW so would need to have regard to NSW law (legal costs exceeded amount in issue and P would be allowed to get legal costs in NSW and could get interest costs in NSW) (test in NSW is that NSW is an inappropriate (vexatious and oppressive) forum and not that Missouri is a more appropriate forum).
Court- NSW was irresistibly an inappropriate forum.
*Regie Nationale des Usines Renault v. Zhang (2002) 187 ALR 1 (Materials, p 152)
Facts - applied for stay of proceedings based on inappropriate forum. Similar to (V v M).
Court – applying French law does not mean that NSW is an inappropriate forum. Para 82 Gleeson, Gaudron, Gummow, Hayne JJ., “has the D demonstrated that NSW is an inappropriate forum”
“[V]ery much a matter of impression”
*James Hardie Industries v. Grigor (1998) 45 NSWLR 20 (Mason P) (Materials, p 62)
Facts – G was a NZ resident and exposed to building products made in NSW (failure to warn in NZ) by JH so brought claim in NSW which had CL juris yet JH applied for stay of proceedings due to FNC. Tort occurred in NZ before 1974 before no fault system with tort damage entirely in NZ.
Court – no 2 cases are the same wrt FNC. Despite substantial connections with NZ the court refused to exercise FNC as evidence was in NSW and DDT in NSW and its legis confers on P’s substantial advantages in terms of evidence.
Pg. 37
P – NZ resident, suffered asbestos exposure in NZ, supplied by Hardy
P commenced proceedings in NSW
Accident rehabilitation act barred proceedings in NZ
Taken away right to sue for damages
Sued in NSW
Case was about choice of law in torts
Q: where the tort occurred
NSW court held, if D owed duty of care to P by supplying asbestos to NZ employer knowing it was used by employees, breach was failure to warn of the dangers to the employees of exposure
So far as P relied on relationship, case not in failing to warn, but ensure by means of capacity that workplace was safe
Place of tort where warning should have operated, and where system of work should have been safe
Two torts
Both places in NZ
Treating export of asbestos from Australia does not make place of tort in NSW
Need to look at the whole series of events
As in Distillers
Unreasonable delay in foreign court
*HRH Maharanee of Baroda v. Wildenstein [1972] 2 QB 283 (Supplementary Materials)
Facts – P was an Indian princess living in France who purchased a painting from Wildenstein as original work of art. Painting was found to be a fake so M looks 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 races so on this day he was served with the originating process.
Court – service was effective despite W having no other relation with E, where presence via a fleeting visit is 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 (as suggested by Denning J., thus example of judicial notice) (yet was it up to the judge to comment 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.
Toop v. Mobil Oil New Guinea [1999] VSC 11
Facts – T was a resident of VIC a legal practitioner working in PNG during armed hold up in Mobil services station. T contended that M was negligent in not having sufficient security measures in place so brought negligence action in vic. M arg that vic was not a clearly inappropriate forum due to substantial delay of 5yrs in the hearing of the claim in PNG.
Stay of proceedings will be refused for FNC if it would deny P a legal remedy and thus be unfair.
Denial of justice; public interest considerations?
*Lubbe v. Cape [2000] 1 WLR 1545 (Materials, p 63A)
Asbestos injury case from perspective of PIL. Test case.
Facts – 3000 plaintiffs’ test case alleged they had been exposed to asbestos and associated products in South Africa. C was co mining asbestos in SA and only one of P’s was a resident of SA and of modest means. C winded up business in SA and took all assets to UK. In England FNC is more advantageous to D i.e have to establish that courts are more appropriate. HoL said a stay of proceedings would be a denial of justice as P was also represented on a, no win, no fee basis.
Court – Public interest considerations not related to the interests of either parties are irrelevant to FNC.
*James Hardie Industries v. Grigor (1998) 45 NSWLR 20 (Spigelman CJ; Mason P) (Materials, p 63B)
Court – Spigelman, Mason J., not permissible to give effect to public interest considerations.