Private International Law

Structure

1) Does the court have jurisdiction - think first of the UCPR

2) Defendant's submission - if they submit, that's ok - if not - it may be a conflict of law -

If your client is outside Australia,

1) Does the court have jurisdiction? (Don't just turn up!) Just because we have been served doesn't mean the court has jurisdiction2) 12.11 if NSW - you can turn up without submitting to jurisdiction - READ THE RULES - say to court: Don't give leave to proceed, or strike out the originating process

3) Look at Schedule 6- as well as 11.2 and 11.4

4) Plaintiff must still show it is within the schedule - it does not have to be 'entirely' within the schedule, (paragraph W) - ONUS IS ON PLAINTIFF. So claim is not struck out. What next?

5) Persuade the court not to exercise their jurisdiction. Check if there is an arbitration agreement. Under the International Arbitration Act (check this!!!) the court MUST stay proceedings

5) If the court will exercise their jurisdiction, what is the applicable law?

7) An exclusive jurisdiction clause - this brings into question - Is it an exclusive jurisdiction clause - Even if it is, should the court hear it anyway? - Remember it's different if NZ is involved

8) If a foreign judgment has been entered, is it enforceable?

8) If that doesn't work, FNC, Res Judicata, Ashun Estoppel, Issue Estoppel,

9) If that doesn't work, try and knock off foreign proceedings through an anti-suit injunction

For NZ

Trans-Tasman Proceedings Act 2010 (Cth)

Stare Decisis

There is only one common law of Australia therefore HCA is authoritative and binding. If no HCA authority, decisions of intermediate appellate courts are not binding but should not be departed from by other intermediate appellate courts unless they are convinced such decisions are plainly wrong: Farah Constructions Courts will generally follow their own previous decisions, however HCA is not so constrained and may depart from previous decisions. Authorities from other countries are not binding: Cook v Cook (HCA) Only if there is an absence of Australian authority can Australian courts can look to the common law traditions of other countries, though views of foreign courts are still non- binding and will still be scrutinized carefully for their international acceptance and approval: Union Shipping (NSWCA)

Jurisdiction

In any question of conflict of laws, the court will apply the lex fori: 'the law of the forum'. Jurisdiction is based on the ability of courts to serve process. If you can't serve process, you don't have jurisdiction.

Court Sources of Jurisdiction

NSW Supreme Court: - Statutory jurisdiction under Supreme Court Act 1970 (NSW) - Has inherent jurisdiction that isn't necessarily written down

Federal Court: - Statutory jurisdiction under Federal Court of Australia Act 1976 (Cth) - Accrued jurisdiction - Associated jurisdiction

Personal Jurisdiction

Territorial jurisdiction based on defendant's presence

A person against whom a claim is made (generally the defendant) must be amenable to service of courts initiating process (statement of claim etc)

(a) Within the territorial jurisdiction of the court (b) Elsewhere in Australia OR(c) Outside Australia Limitations/rules relating to (b) and (c)

Gosper v Sawyer (1985) 160 CLR 548; Laurie v Carrol (1958) 98 CLR 310

The ordinary basis of territorial jurisdiction is the personal presence of the defendant within the court's territory at whatever be the relevant time or times

Uniform Civil Procedure Rules 2005 under the Civil Procedure Act 2005 (NSW)

When personal service is required: UCPR 10.20

Any originating process/ order for examination or garnishee order in:- Supreme Court - District Court- Industrial Relations Commission - Land and Environment Court- DDT

Local Court:- Personal Service- At business/residential address with person apparently employed/ residing who is above 16- By post to business/residential address

Subpoenas in District/ Local Court:- Personally served- At business/residential address with person apparently residing who is above 16- By post to business/residential address

How personal service effected generally: 10.21

(1) By leaving a copy of the document with the person, or putting it down in the persons presence and telling the person the nature of the document.(2) Leaving it as near as praticable

How to personally serve a corporation: 10.22

- By personally serving a principal officer of the corporations- By serving the document on the corporation in any other manner permitted by law.

Substituted and informal Service: 10.14

Substituted means INSTEAD of personal service (ie same jurisdictional scope) (1) If it is not practical, the court can order a form of substituted service

Joye v Sheahan (1996) 62 FCR 417

If the defendant knew service was coming or left to avoid it, you can get an order for substituted service

Maharanee of Baroda v Wildenstein

Even if you are tricked into coming into the jurisdiction, service is still valid.

Perrett v Robinson

Service still valid if the defendant came into the jurisdiction specially to be served, e.g. to obtain juristic advantage. Not fraudulent.

Corporation present in NSW Jurisdiction

Common Law

National Commercial Bank and Wimborne

The test is whether the corporation is carrying on business in the jurisdiction. This is possible through:1) An agent that has authority to bind the corporation to contracts in NSW. It's not sufficient if the agent is merely ministerial.2) Whether the business has a fixed address3) Whether the business has been continued for a sufficiently substantial period of time.4) It is relevant to consider whether it employs staff, pays wages or expenses, (i.e. maintains an office), pays rent, has its name displayed.

Just because there is no objection to a cross claim or an extension of time to file the cross claim does not mean a party is waiving its right to protest jurisdiction

Sunland Waterfront (BVI) Ltd v Prudentia Investments P/L(No 2) [2012] VSC 239

- "System, continuity and repetition" of the activity is required to be deemed to be carrying on business. "Ad hoc" business is not enough. - There must always be present some element of commerce or trade such as a private citizen or trader might undertake. - Such presence is not established by showing that the foreign corporation has appointed a local solicitors to commence or defend particular legal proceedings in the jurisdiction.

Pan Australia Shipping Pty Ltd v The Ship 'Comandate' (No 2) [2006] FCA 1112

Ordinarily, an arbitration agreement will give rise to the Court holding the parties to their exclusive procedure for the resolution of any dispute to which the agreement applies. However there is no reason why the parties cannot agree afterwards to use litigation, rather than follow the arbitration agreement in which case the agreement becomes inoperative or abandoned

A party can be only held to have waived/ elected if it had so communicated its waiver/ election to the other party in clear and unequivocal terms. An waiver/ election arises when a party is confronted with and makes a choice between the exercise of alternative and inconsistent rights. The party is not obliged to elect at once, but when it takes a step which is consistent only with one of those rights the law attributes to it an election to abandon the other right

Statute: Corporations Act 2001 (Cth)

s 21: Carrying on business in Australia or a State or Territory

(1) A body corporate that has a place of business in Australia/State/Territory carries on business in Australia/State/Territory(2) Includes using share transfer/registration office, or administering, managing, or otherwise dealing with, property situated in Australia(3) Despite subsection (2), a body corporate does not carry on business in Australia, or in a State or Territory, merely because, in Australia, or in the State or Territory, as the case may be, the body:(a) is or becomes a party to a proceeding or effects settlement of a proceeding or of a claim or dispute; or (b)holds meetings of its directors or shareholders or carries on other activities concerning its internal affairs; or (c)maintains a bank account; or (d)effects a sale through an independent contractor; or (e)solicits or procures an order that becomes a binding contract only if the order is accepted outside Australia, or the State or Territory, as the case may be; or (f) creates evidence of a debt, or creates a security interest in property, including PPSA retention of title property of the body; or (g)secures or collects any of its debts or enforces its rights in regard to any securities relating to such debts; or (h)conducts an isolated transaction that is completed within a period of 31 days, not being one of a number of similar transactions repeated from time to time; or (j) invests any of its funds or holds any property.

Service on a Corporation

Note foreign corporations must be registered under 601CD of the Corporations Act 2001 (Cth)

Statute: Service and Execution of Process Act 1992 (Cth)

s 9: Service on companies and registered bodies

(1) Service is effected by delivering or posting the document to the companys registered office(2) Service can be effected by personal service of a director of the company

Note parallel provision in s 109X of Corporations Act 2001 (Cth)

Service elsewhere in Australia:

Service and Execution of Process Act 1992 (Cth)

s 12: Effect of Service

(1) Service of a process has the same effect and may give rise to the same proceedings as if the process had been served in the place of issue, i.e. if you serve in Victoria, it has the same effect as if you served in NSW.

s 15: Initiating process may be served in any part of Australia

(1) An initiating process issued in a State may be served in another State. (2) Service on an individual must be effected in the same way as service of such an initiating process in the place of issue. This expands the jurisdiction of the courts to cover all of Australia.

s 20: (1) Transfer between courts when proceedings between the same parties or concerning the same subject-matter are pending in different superior courts which court is more appropriate? (3)Transfer when the interests of justice so require

Intra Australian Cases BHP Billiton: Test not the same as forum non conveniens: it must be both necessary and sufficient that other court is more appropriate if so, transfer though courts are reluctant to do this

s 21: Courts cannot issue anti-suit injunctions against one another

McEntee v Connor (1994) 4 Tas R 18

The effect of the cross- vesting legislation is such that transfer to another supreme court will occur only if it is in the interests of justice.

Jurisdiction based on defendants submission

Voluntary Submission

Defendant can submit to the courts jurisdiction by: Turning up to court note NSW does not allow for conditional appearances Express agreement UCPR 10.6 Authorising lawyers to accept process UCPR 10.13 Remember submission to jurisdiction is different to the governing law

Howard v National Bank of New Zealand Ltd

The entry of an appearance by a respondent outside the jurisdiction has long been regarded as such an act of voluntary submission to jurisdiction another way is by waiving objection to jurisdiction by taking a step in the proceeding inconsistent with maintaining that objection

Here instructing a solicitor to accept service constitutes a submission to jurisdiction

Garsec v His Majesty the Sultan of Brunei (2008) NSWCA 211

A party has a right to withdraw an appearance if the claim is withdrawn. However if a new claim is filed and they take no steps to protect their position, instead taking active steps in proceedings, this right to withdraw is lost.

Submission by Appearance

Marlborough Harbour Board v Charter Travel Co

When a foreign party submits to jurisdiction regarding a particular matter, this doesn't mean they have submitted to the jurisdiction in every matter.

However they do submit to a cross claim based on the SAME ESSENTIAL SUBJECT MATTER.

Vertzyas v Singapore Airlines Ltd(2000) 50 NSWLR 1

It is a question of degree whether the acts in the court proceedings of the party said to have submitted to the jurisdiction are to be regarded as inconsistent with that party maintaining his or her objection to jurisdiction so as to constitute a waiver of such objection. Not every act which seeks to raise the merits of the other party's case will be regarded as inconsistent but only those which manifest an unequivocal intention to contest those merits.

Here asking for further particulars, and interviewing doctors, amounted to a waiver of the right to object to jurisdiction.

Service Outside Australia

General Service Outside Australia:

11.1: Applies to Supreme Court 11.2: JURISDICTION TO SERVE OUTSIDE AUSTRALIA: Picks up Schedule 6; note in the case of NSW and most of the other states, there is no prior leave required for service out of the jurisdiction. Exceptions are WA and the Federal Court - leave required.

11.3: (1) Originating process must contain notice if intended to be served outside Australia(2) Unless intended to be served in accordance with Hague Convention, e.g. Article 8

11.4: LEAVE IS REQUIRED IF PLAINTIFF OUTSIDE AUSTRALIA AND NO APPERANCE IS ENTERED; The plaintiff has to show, to the satisfaction of the court, that their claim comes within Schedule 6 and the court should allow them to proceed ex parte (see case law)

11.6: Need not be personally served as long as in accordance with law of country where served

11.7: Application to set aside service Court can set aside originating process on application by defendant e.g. because court is an inappropriate forum (see also 12.11) (Note: it is debateable whether this is the same as the clearly inappropriate forum test of forum non conveniens. Most courts take the view that they mean the same thing - however Allsop J cast doubt on this in Studorp v Robinson at [5]

11.8A: applies to convention agreements between Australia and other countries but not applicable if to be served in country which is a party to the Hague Convention.

Defendant can object to jurisdiction: UCPR 12.11

(1)(a) Court can set aside originating process (b) Court can set aside service (h) Court can decline to exercise jurisdiction

UP TO HERE NOW 1pm

Schedule 6

- As a general rule, they are read separately and disjunctively

- See also (w) -if the claim is partly in one and partly in another it is ok as long as THE ENTIRE CLAIM IS BROUGHT WITHIN THE HEADS

Note the burden of proof is on the party bringing the claim; then burden on party seeking to show that court is an inappropriate forum / court should decline to exercise jurisdiction

(Note the jurisdiction of the Federal Court to serve outside Australia is found in the Federal Court Rules 2011:10.42)

When has a cause of action arisen in NSW?

Distillers Co (Biochemicals) Ltd V Thompson [171] AC 458

Arises when the act of the defendant that gives the plaintiff a cause of complaint occurs in the state

Here the tort was negligence; the failure to warn of the dangers of the drug occurred in NSW

Re Mustang

Here the delinquency of a company director was held to have occurred in NSW as the company (in liquidation) was in NSW, and the winding up was in NSW

Where do breaches of contract occur?

Showtime Touring Group Pty Ltd v Mosely Touring Inc [2010] NSWSC 974

A contract is made when acceptance reaches the offeror - this applies to electronic communications, including email.

If repudiation takes place by letter or telephone the breach occurs at the place from which the message was sent

Where the breach consists of failure to perform, the place of breach is where the obligation in question was due to be performed

Failure to pay generally the place of business or residence of the payee (the person to whom money is owed)

(Here a contract was signed in NSW then sent to New York, back to the offeror held that the contract was made in New York and Schedule 6 had no application).

Where do torts and damage from torts occur?

Dow Jones & Co v Gutnick (2002) 202 CLR 575

Defamation is located at the place where the damage to reputation occurs. In the case of material online, it is where the person downloads the material that the tort of defamation is done. Sigma Coachair Group Pty v Bock Australia Pty Limited [2009] NSWSC 684

Misleading / deceptive conduct tort occurs where the statement is received

(Here a misleading and deceptive catalogue representing that you could use compressors in air con units was relied upon in NSW thus cause of action and loss both in NSW)

Flaherty v Girgis (1985) 4 NSWLR 248

Damage...includes all the detriment, physical, financial and social which the plaintiff suffers as a result of the tortious conduct of the defendant. What are the criteria for leave to proceed when no appearance is entered by a foreign defendant?

Agar v Hyde

The correct test is to look at the claims that the plaintiff made in the statement of claim; on the basis of these claims, is it a cause of action arising in the state?

Court would only grant application to set aside originating process served outside Australia if there was a high degree of certainty that the claim would fail if it went to trial in the ordinary way. So the test is the same for both local and overseas defendants.

Studorp v Robinson [2012] NSWCA 382

Due to questions of international comity, only the Supreme Courts and other superior courts can serve outside Australian jurisdiction.

Sutton v BE Australia

The Industrial Commission has been held to be a superior court and has authority to serve outside Australian jurisdiction. This is because:

- It has its own legislation- Its rules can prevail over the UCPR- Because of this it picks up Part 11 of UCPR (it is a "superior court")

Flo Rida

The District Court is not a superior court and cannot serve process overseas

Trans-Tasman Proceedings Act 2010 (Cth)

s 8: (1) Applies to all Australian courts and selected tribunals(2) Except excluded matters mainly family law, actions in rem etc

s 9: (1) Civil proceedings may be served in New Zealand(2) However the document must be served the same way as it is required to be served in Australia

s10: Has the same effect and gives rise to the same proceeding as if the initiating document had been served in the place of issue

What can a NZ defendant do to avoid this?

s17: may apply to Australian court to stay proceeding on basis that NZ court is more appropriate court to determine matters in issue

s 19: (1) Australian Court MAY stay proceedings if satisfied That NZ court has jurisdiction to determine matters in issue between parties to proceeding AND Is more appropriate court to determine matters

(2)In determining whether a New Zealand court is the more appropriate court to determine those matters, the Australian court must take into account the following matters:

(a)the places of residence of the parties or, if a party is not an individual, its principal place of business;(b) the places of residence of the witnesses likely to be called in the proceeding;(c) the place where the subject matter of the proceeding is situated;(d) any agreement between the parties about the court or place in which those matters should be determined or the proceeding should be commenced (other than an exclusive choice of court agreement to which subsection20(1) applies);(e) the law that it would be most appropriate to apply in the proceeding;(f) whether a related or similar proceeding has been commenced against the defendant or another person in a court in New Zealand;(g) the financial circumstances of the parties, so far as the Australian court is aware of them;(h) any matter that is prescribed by the regulations;(i) any other matter that the Australian court considers relevant;and must not take into account the fact that the proceeding was commenced in Australia.

s 20: a) An Australian court MUST stay proceedings if satisfied that there is an exclusive jurisdiction clause nominating a NZ courtb) Must not stay the proceeding if satisfied there is an exclusive jurisdiction court nominating an Australian court

s 20(2A): s20(1)(b) does not apply if Aus court satisfied that agreement is null and void under Australian law (inc. rules of PIL)

s20(3): An exclusive choice of courts agreement is: a written agreement Between the parties that Designates the courts (or courts) Of a specified country To the exclusion of any other courts As the courts to determine disputes between the parties that include those matters

s21(1): Australian court cannot stay civil proceeding on forum grounds connected with New Zealand otherwise than in connection with this Part. (2) No effect on power of Australian court to stay the proceeding on any other grounds

s 22 (1) An Australian court cannot restrain a NZ court on the ground that a NZ court is not the appropriate forum (2) An Australian court must not issue an anti-suit injunction against a party to a civil proceeding in a NZ court

Discretionary Non-Exercise of Jurisdiction

International Arbitration Act 1974 - s 7

- If there is a valid arbitration agreement, the court DOES NOT have discretion and this agreement must be followed

Foreign Jurisdiction Clauses

- Submission to the jurisdiction a basis for a court to take jurisdiction over a case (Sch 6) r(h)- By submission to jurisdiction- By agreement to submit

- Usually in the parties' contract pursuant to an exclusive or non exclusive jurisdiction (choice of courts) clause- To submit to the forum court- To submit to another court- To submit to arbitration

- Note choice of law does NOT mean choice of court - just because a contract says 'the parties agree to the law of Hong Kong' DOES NOT mean they are agreeing to Hong Kong Courts AND VICE VERSA

FAI General Insurance v Ocean Marine Mutual Protection and Indemnity Ass 1997 (41) NSWLR 117

Dispute resolution/ arbitration clauses are seen as a separate contract so even if the main contract is null and void, this doesnt stop the clause being effective

When is a clause exclusive? If a clause is non-exclusive it is a submission to jurisdiction only

- It is a question of construction; the intention of the parties and the surrounding circumstances will be looked at- The word exclusive is not determinative- The mutuality of the obligation - do the parties have the same obligations and right? This is indicative of exclusivity- Other language in clause or contract may point towards intention of exclusivity - Fact that court has jurisdiction anyway may assist in determination that parties intended it to have exclusive jurisdiction - Large commercial / international parties will be presumed to desire certainty and are more likely to intend exclusivity

Oceanic Sun Line

To ascertain the law applicable to any dispute, a court will apply the lex fori, the law of the forum. Thus to ascertain whether an exclusion clause has been incorporated into a contract will be determined by the law of the forum

Where parties to a contract have agreed by an exclusive foreign jurisdiction clause to submit to the exclusive jurisdiction of a foreign court, such a clause does not operate to exclude the local forum court's jurisdiction. However, the court will hold the parties to their bargain, and grant a stay of proceedings, unless the party seeking that the proceedings be heard in the local forum can show that there are strong reasons against doing so.

Venter v Ilona MY Ltd

Ultimately the finding of a binding exclusive jurisdiction clause is an exercise of discretion: apply litigation facts

In favour of finding forum jurisdiction:- If proceedings commenced between the parties remained on foot.- Ifparties awaited judgment with a decision on a point potentially relevant to the cross claim- The fact that there is a claim under New South Wales legislation, (here the Compensation to Relatives Act), needs to be taken into account-Some of the witnesses who may be called are Australian

Against finding forum jurisdiction:- The contract is to be construed in accordance with a foreign law- If it would 'split' aspects of the case by holding them in different parts of the world- If it would 'duplicate' elements of litigation

Irrelevant:- Where the owners or the ship itself were registered

HELD: Proceedings stayed (Case involved a death at sea in a work-related accident off the coast of Thailand of the chief engineer of an Australian registered ship, and the conflict of laws issues which arose in the subsequent tort and contract proceedings in New South Wales)

On whether the court is a 'clearly inappropriate forum': apply pre-litigation facts

For Clearly Inappropriate to be heard in Australia:

"The following matters point to this court as an inappropriate forum:(1)the contract was made in Europe;(2)the contract is to be governed by German law;(3) no part of the contract with MDE was to be performed in Australia; and(4)no part of the contract was to be, or was actually, performed in Australia.

Against Clearly Inappropriate in Australia

The following matters advanced by Mr Sheller reduce the significance of the matters identified in par [49] above:

(1) the accident occurred either in Thai waters or international waters;(2)none of the crew had any connection with Germany and two of them live in Australia or New Zealand and speak English;(3) some of the work of installation was performed in Marseilles and repair work (before the accident) was done in Malaysia;(4)the proceedings were brought in Australia and regularly so;(5)the proceedings between Mrs Venter and the Owners were settled in Australia and the reasonableness of the settlement may be an issue in the proceedings; and(6)the LRA claim made against MDE would, or at least may, need to be determined on whether the Owners and MDE owed a duty of care to Mr and Mrs Venter under Australian law.

HELD: Australia not a clearly inappropriate forum (irrelevant as proceedings stayed)

Akai Pty Ltd v People's Insurance Company Ltd (1996) 188 CLR 197

Considerations of public policy in deciding whether to grant a stay: where legislation renders void any contractual provision attempting to evade it, courts will give effect to this and refuse to stay proceedings

(Here an exclusive jurisdiction clause was rendered void by s 52 of the Insurance Contracts Act 1984 (Cth)

Incitec v Alkimos: (this moved away from Eletheria)

The enforcement of an exclusive jurisdiction clause, which is not contrary to the applicable law, will prima facie be granted unless there are strong reasons to the contrary

Irrelevant to whether to grant a stay of proceedings: Tactical reasons for decision Forensic or financial inconvenience to party who signed agreement it is inappropriate for the forum court to enter into any comparison between the quality of justice administered in the forum and in the foreign country.

In favour of upholding an exclusive jurisdiction clause: The desire of courts to hold commercial parties to their bargain in terms of exclusive jurisdiction clauses The desire of courts to avoid disruption and multiplicity of litigation

Against the operation of an exclusive jurisdiction clause: The inconvenience, if any, whether financial or other, caused to third parties The effect, if any, upon the due administration of justice; and Any other appropriate public policy consideration that can be discerned in all the circumstances the very existence of the possibility, if not probability, of duplicated litigation

Global Partners Fund Limited v Babcock & Brown Limited (in liq) and Ors [2010] NSWCA 196:

An exclusive jurisdiction clause is to be construed broadly (i.e. given force), albeit in the particular context of the contract in which it is contained and any interrelated arrangements, particularly when the contract has an international dimension as one of the main purposes of such a clauseis to ensure that all disputes are determined in a coherent manner by the courts of a single jurisdiction

A party to an exclusive jurisdiction agreement can enlist an Australian courts assistance to stay proceedings brought against both it and non-parties, EG SUBSIDIARIES

arising out of or in connection with - does this include claims at law - YES - should be construed like arbitration clauses -clause is construed generally

A court is not a clearly inappropriate forum if there is an exclusive jurisdiction clause submitting to that court

Bagsfirst Global v Global Brands (Football) [2010] NSWSC 988

A non-exclusive jurisdiction clause means the parties accepted the real possibility that litigation might occur elsewhere. In this case the only defence available is that of forum non conveniens

Courts should be slow to decline to exercise jurisdiction that is conferred upon them

Alstom Limited & Ors v Sirakas (No. 2) [2012] NSWSC 64

the interests of justice do not require that the plaintiffs' civil suit be stayed because of possible criminal proceedings

Res judicata and avoiding conflicting judgments

*Telesto Investments Limited v UBS AG [2013] NSWSC 503

Res Judicata:where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action (cant keep re-litigating the same matter)-the earlier judgment must be final and on the merits-A default judgment or consent judgment is still capable of being final and conclusive on the meritsIt appears to be settled that it is possible for res judicata to arise from a foreign judgment

Issue Estoppel:The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or [factual] justification of its conclusion. These can be ascertained from examining the reasons for judgment

Three requirements for the creation of an issue estoppel:

(1) that the same question has been decided;(2) that the judicial decision which is said to create the estoppel was final; and,(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

Issue estoppel operates in regards to decisions of foreign jurisdictions:if the issue has already been determined by a court of competent jurisdiction, issue estoppel operates regardless of whether the local court would regard the reasoning of the foreign judgment as open to criticism (UNLESS the foreign judgment in question is in the nature of an ex parte hearing, or where the reasons for judgment, for whatever reason, do not spell out precisely the legal and factual grounds on which the outcome rests)

Ashun Estoppel:A question of Anshun estoppel may arise where a matter not raised as a defence (that was SO RELEVANT it should have been) is later raised as a cause of action (as in Port of Melbourne Authority v Anshun Pty Ltd), or where a matter (again, that was SO RELEVANT it should have been) is not brought as a claim/ cross-claim in earlier proceedings but is later raised as a cause of action = the foundation for the doctrine is that it is UNREASONABLE for the party to rely on such when it should have brought it up before

Whether or not an earlier foreign judgment can found an Anshun estoppel must depend on whether or not in the foreign jurisdiction in which the earlier judgment was given there exists an equivalent doctrine.

In considering Ashun estoppel,the availability of juritical advantage in a particular jurisdiction can be considered as to why a party did not raise the defence/ matter before

Abuse of Process:There can be an abuse of process where, even though a plea of res judicata, cause of action or issue estoppel is not available if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again...

However, the co-existence of local and foreign proceedings is not vexatious or oppressive (i.e. an abuse of process) where relief is available in one forum which is not available in the other

Australia and New Zealand Banking Group Ltd v Marks [2013] QSC 186

It is not an abuse of process or an opportunity for the application of res judicata if two proceedings are brought in different courts because one does not have jurisdiction in the other matter

FORUM NON CONVENIENS

Oceanic Sun

In rejecting Spiliada, here the HCA noted that access to court is a right - not to be withdrawn because another forum is more convenient favoured a clearly inappropriate forum test

Voth

Here the majority adopted the test propounded by Deane J inOceanic Sun. The "clearly inappropriate forum" test requires that the continuation of the proceedings in this Courtmust be oppressive or vexatious to the defendant, or must be an abuse of the processes of this Court in some other way.

Majority identified four principles that need to be borne in mind:

(1) A plaintiff who regularly invokes the jurisdiction of a court has a prima facie right to insist on the exercise of that jurisdiction; (this should not be given too much weight)(2) The rationale for the exercise of the power to stay is to avoid injustice(3) the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction would provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay. (4) The jurisdiction to grant a stay or dismiss an action is to be exercised with great care or extreme caution.

Vexatious or oppressive: seriously and unfairly burdensome, prejudicial or damaging while 'vexatious' should be understood as meaning productive of serious and unjustified trouble and harassment (Oceanic Sun, Deane J)

Should be a balancing process D to establish that forum is clearly inappropriate

Regie National des Usines Renault SA v Zhang [2002] HCA 10

The lex loci delicti rule applies to foreign torts it is where the tort is committed

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 thelex causae.

Other relevant factors: delay, the conduct of the parties, the usual domicile or residence of the parties, and various matters of convenience

Puttick v Tenon [2008] HCA 54

However a foreign lex causae is still a relevant factor

James Hardie v Grigor

The need to prove a foreign lex causae can be in itself a source of prejudice it introduces additional levels of complexity, expense and uncertainty together with risk of error

The public interest e.g. overburdened courts are not a significant factor in determining FNC - remember the general position is that if the court has jurisdiction a person is entitled to their day in court

If there are advantages BEYOND a basic 'juritical advantage' it may be taken into account, but there is nothing wrong with parties looking at 'juritical advantages'

CMA CGM SA v ShipChou Shan

A forum canbe clearly inappropriate if there isno real connection with the contested forum (e.g. the arrest of a foreign ship in Australian waters)

Fleming v Marshall

The fact that aplaintiff is unable to get a remedy / litigate elsewhere is not necessarily decisive - it just needs to be evaluated along with other factors

Atlasnavios Navegacao [2012] FCA 1497

- Prima facie it is vexatious and oppressive to bring proceedings concerning the same issues in different countries that have jurisdiction in respect of the matterFACTORS RELEVANT TO A FINDING OF FORUM NON CONVENIENS:

- The nature and degree of connection between the parties and their controversy to each jurisdiction are fundamental factors in assessing whether the forum is clearly inappropriate- Which forum can provide more effectively for complete resolution of the matters involved in the parties controversy- The order in which the proceedings were instituted- The stage that each proceeding had reached and the costs that had been incurred- The resources of the parties, the language of each jurisdiction and their witnesses

Studorp v Robinson

A tribunal may be a clearly inappropriate forum if you cannot appeal on a question of fact

*** CSR v Cigna Insurance ***

With dual litigation out of the same substratum of facts, you look at the controversy as a whole, and determine if they are vexatious or oppressive in the Voth sense of the word

It is also significant if there are different remedies (here there were remedies available in the US that were not available in Aus)If one party is bringing the action in a certain court to avoid the other availing themselves of remedies, this is also significant and can be 'oppressive' in the Voth sense

the power to stay proceedings on grounds of forum non conveniens arises from the courts inherent jurisdiction

Proceedings brought for dominant purpose of preventing party from pursuing remedies available in another court are vexatious and oppressive

Thomson Aviation Pty Ltd v Dufresne [2011] NSWSC 864

Where a defendant seeks contribution or indemnity (whether as a statutory right or pursuant to a contract) such proceedings, brought by way of cross-claim, should in all but exceptional circumstances be heard and determined at the same time as the principal claim between plaintiff and defendant.

Anti- Suit Injunctions

CONSIDER THIS AFTER FNC TEST - Court will look at whether it is a clearly inappropriate forum first, then at anti-suit injunctions. An anti-suit injunction can be issued on request.

Requires a serious issue to be tried, and the balance of convenience looked at

Based on historical practice of Equity and so subject to standard equitable defences (clean hands; laches). Also may not be granted where damages are an adequate remedy.

NOTE: Requires the party within the jurisdiction (or can be served outside the jurisdiction) of the issuing court

Supported by power of court to punish for contempt if order disregarded

May be permanent or temporary, and may be issued ex parte.

Air Bus and CSR are the leading cases

Airbus

Discretion to be exercised when ends of justice require it; motivation is the finality of litigation

When foreign proceedings are vexatious or oppressive

Regard must be had to international comity

Jurisdiction must be exercised with caution

CSR

Stay orders and anti-suit injunctions are not governed by the same principles, however a stay should be considered first

It can be brought because of something unconscionable, e.g. THE SUIT OVERSEAS IS BROUGHT IN BREACH OF AN EXCLUSIVE JURISDICTION CLAUSE

Extends to proceedings overseas which are vexatious, oppressive or an abuse of process. Mere co-existence of proceedings is not enough; a party seeking anti-suit injunction must show that there is nothing that can be gained in the foreign proceedings over and above what is available in local proceedings

TS Production

While the co-existence of proceedings in different countries is not, of itself, vexatious and oppressive, it is prima facie vexatious and oppressive for a party to commence a second or subsequent action if an action is already pending with respect to the matter in issue

A court that is first in time is more likely to grant an anti-suit injunction to prevent a foreign court beginning proceedings.

The general procedure is that a court cannot hear cases about foreign immovables e.g. land

Sunland Waterfront v Prudentia Investments

A court may award an anti-suit injunction if the second proceedingsare unnecessary, unjustified or unfair

Onus is on the party claiming relief; if established, onus shifts to other party to demonstrate legitimate reason for bringing foreign proceedings. If party has made an election on forum and no legitimate juridical advantage in second forum, will be held to election

Anti Anti-Suit Injunction

This is where you order the defendant NOT to apply for an anti-suit injunction in a foreign court: Qantas v Rolls-Royce

Telesto

The anti anti-suit order is a factor but NOT a determinative factor as to whether NSW or other is a clearly inappropriate forum