DECIDING A CASE
1. jurisdiction = subject matter (not the focus of this course) + personal jurisdiction over the defendant 2. choice of law (to determine the lex causae, that is, which jurisdiction’s legal principles are to be applied) 3. recognition and enforcement of judgments
JURISDICTION
1. Does the forum have jurisdiction over the defendant?
Personal jurisdiction arises where the defendant has been properly served. The plaintiff must enliven the jurisdiction of the forum court by serving the originating process.
Three possible circumstances:
Defendant is within the law area of the forum court (Laurie v Carroll)
Where the defendant is within the law area of the forum court, service on the defendant is sufficient to enliven the authority of the court (Laurie v Caroll) (provided there is nothing in the court rules to the contrary and that the court otherwise has subject matter jurisdiction to resolve the dispute).
Defendant is outside the law area but within Australia (Service and Execution of Process Act applies) The plaintiff does not need to obtain leave from the court, and since it is federal legislation, it is binding on all state and territory courts. Initiating process of any State or Territory may be served in any other State or Territory law area (s 15(1) SEPA) on:
• an individual (s15(2)),
• company or registered body (s15(3)), which must be effected in accordance with s 9
o s9 SEPA governs the actual process of service, e.g. service on a company is to be affected by leaving it at, or by sending it by post to the company’s registered office (s9(1)) or liquidator’s registered office (s9(3)) etc
• other body corporate (s15(4)), which must be effected by in accordance with s 10
o s10 SEPA governs the actual process of service on a body corporate that is not a company or registered body, eg depending on whether the law of the state in which service is to be effected provides that it may be effected at a particular place, it will either by leaving or sending the process, order or document to that place (s10(2)) or leaving or sending it to registered office or principal place of business (s10(3)).
• a body politic such as the Cth or State (s15(5); s10).
• Don’t get stuck on the details in the provisions; identify whether s 15 is triggering ss 9 or 10 and give a really concise statement
Defendant is outside of Australia (long-arm jurisdiction, Rules of Court with some jurisdictions adopting the harmonised Rules of Court)
To note
** The harmonised Rules of Court were put together by the Harmonisation of Rules Committee, and aim to be a set of standardised rules that can be applied across Australian jurisdictions. These harmonised rules have been accepted in some, but not all, jurisdictions. NSW, ACT, SA, Victoria, Qld have accepted. Not adopted yet by the Federal Court. Effectively a standardised set of long-arm rules. **
Federal Court
Where you have a federal court, the jurisdiction of the court is nationwide, so service only becomes an issue if the defendant is outside Australia. In the Federal Court, for service out of Australia, the plaintiff must (i) come within a long-arm head of jurisdiction in the court rules; (ii) be able to effect service using a mechanism for service (see FCR, Pt 10, Div 10.5 and 10.6); and (iii) show a prima facie case for relief. Unlike the NSW Supreme Court, leave must be sought for service. The same general principles apply about serving a defendant outside Australia as the UCPR, key difference is needing leave from the Federal Court.
Can the plaintiff serve the defendant without leave? Looking at NSW UCPR, Sch 6, Rules 11.4 and 11.5 (where NSW is the forum court). Harmonised rules have the equivalent for service without leave from the Supreme Court of a State or Territory.
[SERVICE WITHOUT LEAVE]: As the defendant is outside Australia, the plaintiff can serve without leave if they can show that the proceeding is one within a long-arm head of jurisdiction in the court rules.
UCPR r 11.4, sch 6
Rule 11.4 Cases for service of originating process
Originating process may be served outside of Australia without leave in the following circumstances (sch 6).
This rule extends to originating processes served outside Australia in accordance with the Hague Convention.
(a) When the claim is founded on a tortious act or omission (i) which is done wholly or partly in Australia, or
(ii) in respect of which the damage was sustained wholly or partly in Australia (e.g. Oceanic Sun injury from a ship in Greece with injuries being treated in NSW, Voth losses of a company from negligent accountant, Zhang motor vehicle accident in New Caledonia with NSW resident, Dow Jones defamation case, defamation is committed at the place the injury to reputation occurs, in this case this was when the material was uploaded in Vic).
(b) When the claim is for the enforcement, rescission, dissolution, annulment, cancellation,
rectification, interpretation or other treatment of, or for damages or other relief in respect of a breach of, a contract which
(i) was made or entered into in Australia or
(ii) was made by or through an agent trading or residing within Australia or (iii) was to be wholly or in part performed in Australia or
(iv) was by its terms or by implication to be governed by Australian law or to be enforceable or cognizable in an Australian court (e.g. Abela where the contract had an express choice of English law, and as such the vendor who was the defendant could be served)
(c) when the claim is in respect of a breach in Australia of any contract, wherever made, whether or not that breach was preceded or accompanied by a breach outside of Australia that rendered impossible the performance of that part of the contract that ought to have been performed in Australia,
(d) when the claim
(i) is for an injunction to compel or restrain the performance of any act in Australia, or (ii) is for interim or ancillary relief in respect of any matter or thing in or connected with
Australia, where such relief is sought in relation to judicial or arbitral proceedings
commenced or to be commenced, or an arbitration agreement made, in or outside Australia (including without limitation interim or ancillary relief in relation to any proceedings under the International Arbitration Act 1974 of the Commonwealth or the Commercial
Arbitration Act 2010 ), or
(iii) is an application for a freezing order or ancillary order under Division 2 of Part 25 in respect of any matter or thing in or connected with Australia.
(e) when the subject matter of the claim is land or other property situated in Australia, or any act, deed, will, instrument, or thing affecting such land or property, or the proceeding is for the
perpetuation of testimony relating to such land or property,
(f) when the claim relates to the carrying out or discharge of the trusts of any written instrument of which the person to be served is a trustee and which ought to be carried out or discharged according to Australian law,
(g) when any relief is sought against any person domiciled or ordinarily or habitually resident in Australia (whether present in Australia or not) (Henry v Henry divorce proceedings where one party was a resident/citizen of Australia)
(h) when any person outside of Australia is
(i) a necessary or proper party to a proceeding properly brought against another person served or to be served (whether within Australia or outside Australia) under any other provision of these rules (Nilon claim against director for rectification of company register was tied up with claim against the company for breach of contract), or
(ii) a defendant to a claim for contribution or indemnity in respect of a liability enforceable by a proceeding in the court,
(i) when the claim is for the administration of the estate of any deceased person who at the time of his or her death was domiciled in Australia or is for any relief or remedy which might be obtained in any such proceeding,
(j) when the claim arises under an Australian enactment (law) and
(i) any act or omission to which the claim relates was done or occurred in Australia, or (ii) any loss or damage to which the claim relates was sustained in Australia, or
(iii) the enactment applies expressly or by implication to an act or omission that was done or occurred outside Australia in the circumstances alleged, or
(iv) the enactment expressly or by implication confers jurisdiction on the court over persons outside Australia (in which case any requirements of the enactment relating to service must be
complied with)
(k) when the person to be served has submitted to the jurisdiction of the court (whether by contract or any other means),
(l) when a claim is made for restitution or for the remedy of constructive trust and the alleged liability of the person to be served arises out of an act or omission that was done or occurred wholly or partly in Australia,
(m) when it is sought to recognise or enforce any judgment,
(n) when the claim is founded on a cause of action arising in Australia,
(o) when the claim affects the person to be served in respect of his or her membership of a corporation incorporated in Australia, or of a partnership or an association formed or carrying on any part of its affairs in Australia,
(p) when the claim concerns the construction, effect or enforcement of an Australian enactment, (q) when the claim [relates to arbitration]
(i) relates to an arbitration held in Australia or governed by Australian law, or (ii) is to enforce in Australia an arbitral award wherever made, or
(iii) is for orders necessary or convenient for carrying into effect in Australia the whole or any part of an arbitral award wherever made,
(r) when the claim is for relief relating to the custody, guardianship, protection or welfare of a minor present in Australia or who is domiciled or ordinarily or habitually resident in Australia (whether present in Australia or not),
(s) when the claim, so far as it concerns the person to be served, falls partly within one or more of the above paragraphs and, as to the residue, within one or more of the others of the above paragraphs [catch-all phrase].
Reg 11.5 covers the heads where prior leave must be sought before service (outside the Reg 11.4 list but a plaintiff can nevertheless make out a case of appropriateness to bring the case to the forum).
Nilon Ltd v Royal Westminster Investments SA (UK case with equivalent rules)
• Relates to para (b)(iv) and (h)(i) (‘necessary or proper party to a proceeding)
• Factual background – What was in dispute was an application for service of a third party, Mr Varma. Mr Varma said he was an unnecessary or improper party to the proceeding. He was located overseas. There was a company incorporated in a tax haven, the British Virgin Islands under the name Nilon Ltd. This was done under an agreement made in England with a UK governing law. Mr Varma was not a party to the contract.
• Could Mr Varma be served? If he is to be served, he must be caught under paragraph (h)(a).
Paragraph (h) must be applied with some caution, it is an additional sort of claim. A factor against applying it was to say that the claim under paragraph (b)(iv) of the contract was made only to enable Mr Varma as the third party outside the jurisdiction, which suggests that the words ‘necessary or proper’ are in doubt here. The proceeding under (b)(iv) was bound to fail and the attraction of paragraph (h) must go with it because it was anchored to something that was going to sink.
o There was no independent basis to pursue the director’s claim to have the share registered rectified as the rectification of the company register was tied up with the other issues in relation to breach of contract
o Paragraph (h) provided a foothold to bring the director into the dispute as the claim against the director was intimately tied up with the breach of contract claim against the company Long-arm jurisdiction may still be denied where the court forms the view that there is no prima facie case (no prospects of success) (Agar v Hyde). This rule latches onto the Harmonised rules.
Can the plaintiff otherwise seek leave from the forum to serve?
[IF NOTHING IN SCHEDULE 6, MUST SEEK LEAVE]: As there is no applicable head of long-arm jurisdiction, an application to the court for leave under UCPR r 11.5 can be made on certain conditions:
(a) Does the claim have a real and substantial connection with Australia?
(b) Is Australia ‘an appropriate forum’ for the trial? Most likely the Voth test.
(c) In all the circumstances, should the forum court assume jurisdiction pursuant to r 11.5(5) UCPR? Can bring in considerations such as ‘reasonable prospects of success’ (Agar v Hyde).
What is the procedural mechanism for effectively serving a defendant outside of Australia?
This is the function of the Hague Service Convention (implemented by federal statute), which puts in place streamline rules allowing for the process of service outside of jurisdiction. This course is less concerned with the detail of this process, more with the first step.
2. Once service is effected, can the defendant challenge jurisdiction on forum non conveniens grounds? If successful, the forum proceeding would be permanently stayed in favour of the commencement or continuation of a foreign court proceeding
If defendant has been served within the jurisdiction or through SEPA if elsewhere in Australia
• The defendant can apply for a permanent stay in favour of another jurisdiction outside Australia on forum non-conveniens grounds in the Voth sense (r 12.11(1)(h) UCPR, r 13.01(a)-(b) FCR)
If defendant has been served outside Australia, and plaintiff did not need leave to serve
• The defendant can challenge long-arm service without entering an appearance (r 12.11(3)(a) UCPR) o This does not constitute the defendant submitting to the forum’s jurisdiction (r 12.11(4) UCPR) o Even if the defendant enters an appearance or defence, they can probably still apply for a stay
on forum non-conveniens in the Voth sense (r 12.11(1)(h) UCPR)
• The defendant can challenge long-arm service by applying to the forum court to set aside the originating process (r 12.11(1)(a) UCPR), service on the defendant (r 12.11(1)(b) UCPR). On application, the forum court has the discretion to stay the proceeding or set aside service of the originating process if
o Service was not authorised by the rules (r 11.6(2)(a) UCPR) (contesting long-arm jurisdiction);
o The forum court is ‘an inappropriate forum’ for the proceeding (r 11.6(2)(b) UCPR); or o The claim has insufficient prospects of success to warrant putting the defendant to the time,
expense and trouble of defending the claim (r 11.6(2)(c) UCPR.
• Alternatively, the defendant can nothing. The plaintiff must then seek leave to continue the proceeding without an appearance by the defendant being made (r 11.8AA UCPR). Although no criteria is spelled out in the rules, it is likely the court might refuse to give leave on the grounds set out in r 11.6(2), that is, if: (a) there is no head of long-arm jurisdiction (b) on forum non-conveniens grounds in the Voth sense or (c) the claim has insufficient prospects of success (same as above).
3. If service has not yet been affected and the plaintiff needs leave to serve outside Australia e.g.
Federal Court or NSW Supreme Court under r 11.5 UCPR, would leave be granted?
• The forum court might refuse to give leave on forum non-conveniens grounds in the Voth sense o Authority for this in NSW Supreme Court is r 11.5
o Although FCR is silent in this respect, it has been held that the Federal Court has a residual discretion to refuse leave in cases of forum non-conveniens (Tiger Yacht Management)
• Alternatively, if leave is granted and the defendant is served, the defendant might seek to have service set aside on forum non-conveniens grounds in the Voth sense (r 12.11(1)(h) UCPR, r 12.01(a)-(b) FCR) REGARDLESS OF WHICH CIRCUMSTANCE ARISES AND DESPITE DIFFERENCES IN STATUTORY LANGUAGE, they all likely involve the application of the common law Voth test (Zhang):
