CONFLICT OF LAWS
CONFLICT OF LAWS
SUMMARY
PX SOLUTIONS
Sources used 5
DOES THE AUSTRALIAN COURT HAVE JURISDICTION? 6
A. JURISDICTION IN PERSONAM 6
SERVICE WITHIN THE JURISDICTION 6
Exception 7
SERVICE OUTSIDE THE JURISDICTION BUT WITHIN AUSTRALIA 7
Service and Execution of Process Act 7
Presence of Corporations 8
The Cross Vesting Scheme 9
SERVICE OUTSIDE AUSTRALIA 9
Actions in Contract 9
Contract is Made in the State: Part 10 R.1A(c)(i) NSW SC Rules. 10
Contract is Governed by the Law of the State: Part 10 R.1A(c)(iii) NSW SC Rules 11
Contract is Breached in the State: 0.12 R.2(e)(i) ACT, Part 10 R.1A(c)(iv) NSW 12
Actions in Tort 14
Misrepresentation 14
Manufacturer’s Liability 15
Action under Trade Practices Act 1974 (Cth) 16
Place where damage suffered Part 10 R1A(1)(e) NSW 17
Actions for Misleading Conduct Under the TPA-NSW Pt 10 R 1A(1)(a) 17
B. JURISDICTION INVOLVING FOREGIN LAND 18
C. REFUSAL TO EXERCISE JURISDICTION – FORUM NON CONVENIENS 19
Overseas Defendants 19
Litigation pending elsewhere 21
Australian Defendants 22
Transfers Under the Cross Vesting Act: s5 22
Stay Under the SEP Act: s20. 23
Stay Under the SEP Act: s20. 24
D. STAYING FOREIGN PROCEEDINGS 24
Principles governing a stay of proceedings and granting an anti-suit injunction 26
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENTS 28
A. JUDGEMENTS GIVEN OUTSIDE AUSTRALIA TO BE ENFORCED HERE 28
Australian Court Must Have Jurisdiction Over the D 28
Countries Listed Under the Foreign Judgement Act 29
The Foreign Court also must have Jurisdiction over the D. 29
D is Resident or Present in the Foreign Jurisdiction At Time Proceedings Commenced 29
Contractual Submission 30
The Judgement must be Final and Conclusive 31
Defences to Enforcement 32
Fraud 32
Denial of Natural Justice 32
EXCLUSION OF FOREIGN LAWS 34
A. Penal Laws 34
B. Revenue Laws 35
C. Appropriation Law 36
D. Other Public Law 37
E. Public Policy 38
CONTRACTS 40
THE PROPER LAW OF THE CONTRACT 40
The Determination of the Proper Law 40
(a) Express Choice 40
(b) Implied Choice 42
(c) Other Cases. 43
The Effect of the Proper Law 45
Formation of the Contract 45
Capacity 46
Interpretation 47
Discharge of Contract 48
Illegality and the effect of other laws 48
Contrary to the Proper Law. 48
Contrary to the Law of the Place of Contracting 49
Contrary to the Law of One Party’s Residence 49
The Law of the Place of Performance 49
The Law of the Forum 51
THE INTERPRETATION OF STATUES OF THE FORUM 52
Statutes phrased in general terms 52
Statutes incorporating particular rules 54
TORTS 55
A. THE GENERAL RULE 55
B. PARTICULAR ISSUES 58
Actions under Lord Campbell’s Act for Wrongful Death 58
Who Can Sue? 58
Contributory Negligence of the Deceased. 59
Accident Compensation Legislation 59
Motor Accidents (Compensation) Act 1979 NT – s5 59
Substance and Procedure 60
(a) Assessment of Damages 60
(b) Limitation of actions 64
B. PARTICULAR ISSUES
Actions under Lord Campbell’s Act for Wrongful Death
Who Can Sue?
Under Lord Campbell’s Act if a person is killed because of neglect or an action of the D, then the family of the deceased can bring an action for loss due to premature death of the deceased.
The deceased must have had a right of action in negligence in both jurisdictions at the time of death for the decease’s family to be able to rely on the forum’s version of Lord Campbell’s Act Koop v Bepp.
Koop v Bepp
Facts: K was driving a truck in NSW when B ran into him. K was injured and taken to a hospital in Victoria where he died. K’s children brought proceedings in Victoria relying on the Victorian version of Lord Campbell’s Act. The issued was which version of the Act was to apply – the NSW since that is where the K’s cause of action in negligence arose or the Victorian version which was the law of the forum. In the end, it did not really matter as the NSW and Victorian versions were exactly the same.
Held: that the Victorian version applied.
In the A.C.T. a former spouse of the deceased is allowed to sue for compensation if the spouse was getting maintenance from the deceased. However, the former spouse has to show the death caused them financial loss.
But note that the insurer may argue that the matter be transferred to another court under the Cross Vesting Act and thus the law of the forum will be the law of the transferee court. Thus the former spouse needs to try and prevent the transfer of the matter in order to be able to take advantage of the legislation.
Contributory Negligence of the Deceased.
A.C.T. Compensation (Fatal Injuries) Act 1968 s11: damages for the family will not be reduced if the deceased was contributorily negligent.
NSW Motor Accidents Act 1988 s75: in relation to a road accident, if the deceased was contributory negligent, the damages of the family will be reduced by the % of the deceased’s contributory negligence.
Kolsky v Mayne Nickless: Fatal accident in Vic – both K and defendant were contributory negligent – K’s relatives sued in NSW. Held: so long as K had right of action in both Vic and NSW, then the law of the forum would apply. Thus NSW Act applied.
Accident Compensation Legislation
Motor Accidents (Compensation) Act 1979 NT – s5
s5 – This completely abolishes the right to sue for personal damages as a result of personal injury in a motor vehicle accident in NT – similar in NZ for any personal injury tort.
These schemes replace the personal action with a statutory compensation scheme. Therefore no cause of action arises if the accident occurred in NT or NZ. Thus the McKain principle cannot be used to allow a person to sue in a different forum.
James Hardie & Co v Hall
Facts: Mr Putt contracted a disease as a result of working in an asbestos factory for James Hardie. He then brought an action in Australia against the Australian Parent Company. The tort was committed in NZ where there was a compensation scheme. Matters of procedure are governed entirely by the law of the forum, but it was held that the NZ Act was substantive and so no right of action arose.
But Davis compensation scheme may not bar an action for exemplary damages, but just bars an action for compensation. Thus an action should be argued that James Hardie knew of the dangers of asbestos and thus should be liable to pay exemplary damages. Both in NZ and in Australia there exists a right of action for exemplary action.
Substance and Procedure
Always accepted that matters of procedure governed by law of the forum – if it is a matter of substance, the matter is applicable only if it passes the rule in Phillips v Eyre.
(a) Assessment of Damages
Definition of a rule of procedure: generally any provision which puts a monetary amount is a matter of procedure. Thus, the assessment of damages is only a matter of procedure – ie a monetary figure.
The Service Execution and Process Act and the Cross Vesting Act provides flexibility for the plaintiff to chose the place to commence damages (Konitis v Barlin) thus plaintiffs should chose to commence their action in a forum where the assessment of damages are favourable to them. However, there is a risk that the matter may be transferred to a more appropriate court.
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