Incoherence in Australian Private International Laws
RTF version - 295.3 KBIntroduction
The present state of incoherence
Establishing personal jurisdiction
Declining to exercise jurisdiction
Recognition and execution of foreign judgments
Impacts of the present state of the law
Impact of the current incoherence on parties and litigants
Jurisdiction
Recognition and execution of foreign judgments
Current disadvantages for the nation
How might greater coherence be achieved?
The constitutional position
The options
Federal codification
The Hague "judgments project"
Conclusion
Introduction
This article identifies some current sources of incoherence in Australian private international laws, the disadvantages stemming from the current disharmony, and the benefits that might come – both for the nation and for litigants – from greater coherence. Something will also be said of the means by which greater coherence might be achieved. The aim here is to address only Australian private international laws as they affect disputes with an overseas element. This paper focuses on two of the three pillars of private international law: jurisdiction, and recognition and enforcement of foreign judgments.
It is appropriate, at the outset, to identify two reasons why incoherence in private international law is particularly troublesome. First, private international law is a gatekeeper to the rest of the law. The best substantive laws in the world (of tort, contract or whatever it may be) are of no avail if a court lacks jurisdiction over a party to a dispute. Equally, the justice of those rules is liable to perversion where courts exercise excessive jurisdiction. Moreover, the utility of invoking the law (of Australia or another place) depends upon the enforceability of judgments. It is especially important that the gatekeeper act in a manner conducive to the interests of parties and of the nation as a whole.
The second reason is that private international law is a facet of Australia's external affairs. It is of more than mere domestic interest. It affects the way we look at the world, and the way the world looks back.
The present state of incoherence
Establishing personal jurisdiction
The sole grounds that found a court's personal jurisdiction over a party at common law are the service of a writ upon that party within the court's territorial jurisdiction, or the party's voluntary appearance.
State and Territory courts, as well as the Federal Court, have "long-arm" rules permitting service of process upon defendants in a broader range of circumstances than at common law.[1] The result of having nine different regimes governing courts' personal jurisdiction over overseas defendants is a bewildering picture.[2] The following paragraphs identify a number of categories of proceeding in which incoherence is most apparent. For the immediate purposes of this discussion, the Trans-Tasman Proceedings Act 2010 (Cth) ("TTPA") is briefly put to one side.
A threshold issue. In all but two Australian jurisdictions, a party may serve originating process upon an overseas defendant without the court's prior leave, provided the action falls within a relevant ground of long-arm jurisdiction. But an applicant in the Federal Court requires prior leave.[3] It must satisfy the Court that it has a prima facie case for relief.[4] Prior leave is required also in the Western Australian Supreme Court, but there is no requirement to demonstrate a prima facie case.[5] These differences in the rules are of appreciable forensic significance.
Corporations. Substantively, one of the areas of perhaps most variation across the country concerns overseas service in corporations matters. There are as many as five different regimes across Australia. The first governs Queensland and NSW,[6] where overseas service is permitted in proceedings concerning a person's membership of a corporation incorporated within the State.[7]
A second, broader regime covers the ACT and Federal Court.[8] The proceedings may concern not only membership of, but also an office-holding in, a corporation. Further, the corporation need not be incorporated within the relevant jurisdiction; it is sufficient that it carry on business there.
A third regime exists in Western Australia,[9] where there are two significant points of difference. First, it is not enough that a proceeding affect a person's membership of a corporation; the subject matter must be company shares. This appreciably narrows the basis for service. Second, the relevant nexus with Western Australia is that the corporation have its principal place of business in the State (as opposed to having been incorporated or merely carrying on business there).
Fourthly, in Tasmania, the equivalent ground of service concerns proceedings affecting the person to be served in respect of his or her membership of a corporation "in the State".[10] This seems the broadest possible territorial nexus.
Finally, in Victoria, South Australia and the Northern Territory, there are no distinct grounds of overseas service in respect of corporate shareholdings or office-holdings.
Contract. Rules of service in contract proceedings are obviously of great commercial significance. Yet there are numerous confounding drafting variations in the various Australian rules. One may be noted by way of illustration. In Queensland and the ACT, but nowhere else, the rules allow overseas service in proceedings concerning contracts made by one or more parties carrying on business or residing within the jurisdiction.[11] In those jurisdictions, then, a party to a contract could rely solely upon its residence or business activities in the forum to serve a foreign defendant. All other Australian jurisdictions require some more substantial nexus between the contract and the forum.
Commonwealth statutes. There is some confusion over whether, and in what fora, the fact that proceedings concern the interpretation, effect or enforcement of a Commonwealth statute is sufficient to ground overseas service. NSW, Queensland and Tasmania permit service out where the proceedings concern the interpretation, effect or enforcement of "an Act".[12] According to the authors of the latest edition of Nygh's Conflict of Laws in Australia, the term, "an Act", "seems broad enough to encompass federal as well as state legislation."[13] Yet the issue is not so clear-cut. Take Queensland as an example. In a broadly familiar provision, the Acts Interpretation Act 1954 (Qld) provides that the word "Act" means "an Act of the Queensland Parliament".[14] Even if it were possible to displace this meaning by contrary intention,[15] the wording of the relevant rule seems, if anything, to confirm it. The rule's first subparagraph refers simply to "an Act", while the second refers to "an Imperial or Commonwealth Act affecting property in Queensland".[16] If the term "an Act" encompassed both State and Commonwealth legislation, what purpose would the second subparagraph serve?[17] Similar observations may be made about the equivalent (though not identical) provisions in NSW and Tasmania.[18]
The upshot appears to be that in order to rely upon this particular ground of personal jurisdiction in proceedings involving Commonwealth legislation,[19] plaintiffs have two options. They may resort to the Federal Court.[20] Alternatively, and somewhat surprisingly, they may bring proceedings in South Australia, where the rules provide for overseas service if "the action is brought under a statute of the Commonwealth".[21]
This leads to some particularly odd results when it comes to actions brought under the Civil Aviation (Carriers Liability) Act 1959 (Cth). Some States and Territories have specific grounds of personal jurisdiction related to claims brought under this Act.[22] Others do not. Within the former category, there are at least two possible outcomes. First, if proceedings are brought in Queensland or the ACT, the plaintiff may serve overseas only if he or she resides or suffered damage in the relevant jurisdiction.[23] Yet, secondly, the same plaintiff could serve overseas in Western Australian, Victorian or the Northern Territory proceedings, irrespective of where he or she resided or suffered damage.[24]
Meanwhile, in jurisdictions with no special ground of service in relation to this Act, outcomes are similarly varied. Personal jurisdiction could be established in South Australia by virtue of the aforementioned provision relating to actions "brought under a statute of the Commonwealth".[25] The same is true of the Federal Court.[26] However, assuming the above analysis of the meaning of "Act" in the relevant rules is correct, a plaintiff in NSW or Tasmania might be out of luck.
Property in the forum. There is a contrast between, on the one hand, jurisdictions where overseas service is allowed if the proceedings "relate to" property situated within the jurisdiction (South Australia and the ACT[27]) and, on the other hand, other jurisdictions (Western Australia, NSW, Tasmania and the Federal Court) where service out is permitted only where such property is the subject matter of the proceedings.[28] The former is a much broader category, notwithstanding that the phrase "relates to" has been given a narrow construction in this context.[29] Still another wording is provided in Queensland,[30] where the proceeding must be "about" property situated in that State. Victoria and the Northern Territory fit within a fourth and more obviously different category; there, land (but not personal property) must be the whole subject matter of the proceeding.[31] The upshot is that the same set of facts might lead to four different outcomes across Australia, depending on the jurisdiction.
Similarly, while in most Australian jurisdictions overseas service may occur where proceedings concern the construction, effect or enforcement of deeds and other instruments affecting real or personal property within the jurisdiction,[32] this is not true of Western Australia, Victoria and the Northern Territory. The rules there allow overseas service only where the relevant instrument affects land (and, in Western Australia, hereditaments) within the forum.[33] Those jurisdictions also make special provision for overseas service in proceedings by mortgagors or mortgagees seeking certain remedies in respect of personal property situated within the forum.[34] But such rules are not sufficient to bring these jurisdictions into line with the rest of the country, where overseas service may occur in proceedings concerning a broader range of instruments (not confined to mortgages) affecting personal property.
Actions to enforce foreign judgments. Some Australian jurisdictions permit overseas service in common law proceedings for enforcement of a foreign judgment.[35] Others do not.[36] As will later be discussed, this disparity remains significant in light of the ongoing relevance of common law enforcement actions, despite enactment of the Foreign Judgments Act 1991 (Cth) ("FJA").
Interaction between the categories. Further complicating matters are the differing manners in which the grounds of overseas service interact. Broadly speaking, there are two regimes in this country. Under the first (which governs Western Australia, Victoria, South Australia and the Northern Territory), only those claims fitting wholly within a ground of jurisdiction may be served upon an overseas defendant.[37] Additional or related claims in respect of which service is not authorised cannot be brought in the same proceeding.[38] That is because the rules have not displaced the common law precept that long-arm jurisdiction grounds are to be read independently and disjunctively.[39]
A different regime governs the rest of the country. In Queensland, Tasmania, the ACT and the Federal Court, it is sufficient that proceedings fall only partly within one of the grounds of service.[40] In NSW, meanwhile, if only part of the proceeding falls within one such ground, then it is necessary that the residue fall within one or more of the others.[41] Accordingly, claims not authorised under any ground cannot be added to proceedings.
Declining to exercise jurisdiction
Discretionary grounds for stays. Australian courts have a discretion to stay proceedings or, alternatively, to refuse to grant leave to serve or proceed against an overseas defendant.[42] Upon entry into force of the TTPA, there will be three principal applicable tests when it comes to proceedings with an overseas dimension: the "more appropriate forum", "clearly inappropriate forum" and "inappropriate forum" tests.
Once the TTPA enters into force, an Australian court may stay proceedings if it is satisfied that a New Zealand court is the more appropriate court.[43] By contrast, the common law test applied in respect of most other overseas courts permits a stay on forum grounds only if the Australian court is a "clearly inappropriate forum".[44] This approach has been described as an "outlier" by comparison to other common law jurisdictions.[45] This is not the place to examine the merits of the Voth test. What matters for present purposes is that the common law test differs substantially from that stipulated under the TTPA.
The third relevant test is the "inappropriate forum" test. The NSW and ACT rules provide expressly that the court may set aside overseas service on the ground that the court is "an inappropriate forum" for the proceedings.[46] The equivalent Victorian rule uses the phrase, "not a convenient forum".[47] Further, the "inappropriate forum" test applies in the ACT and NSW in respect of proceedings relating to land or immovable property outside the jurisdiction. The common law "MoÇambique rule" barred jurisdiction in claims concerning title to, possession of, or trespass to, foreign land.[48] In NSW, the rule was totally abolished,[49] while in the ACT it still applies, but only to adjudications upon title or possession.[50] A NSW court may decline to entertain an action in relation to foreign land or immoveables if it considers that it is "not the appropriate court" to hear the proceedings.[51] The ACT provision uses the phrase, "inappropriate forum".[52]
Is there a difference between an "inappropriate forum" and a "clearly inappropriate forum"? A High Court majority has held that the term "inappropriate forum" is informed by "the same concepts and considerations" as is the phrase, "clearly inappropriate forum".[53] The majority, however, described the former as "less emphatic".[54] As Allsop P observed in a recent NSW Court of Appeal decision, the adverb "clearly", at least on its face, imports a difference in quality and emphasis;[55] that is, it is more emphatic. The position is somewhat unclear.
Recognition and execution of foreign judgments
There is no coherent Australian regime for the recognition and enforcement of foreign judgments. The FJA seeks to provide such a mechanism, but it does so only in respect of courts prescribed in the regulations. For a court to be prescribed, the foreign jurisdiction in question must agree to assure "substantial reciprocity" in its courts' treatment of Australian judgments.[56] Though 28 countries are listed in the regulations, the courts of some of Australia's most significant trading partners (such as the United States and China) are excluded.[57] Moreover, even as to prescribed courts, the statutory mechanism currently applies only in respect of monetary judgments.[58]
Additionally, although the FJA establishes a simplified procedure for foreign judgment enforcement, the extent to which the procedure functions in a streamlined fashion is at the mercy of the various State and Territory court rules.[59] Those rules are not fully harmonised. The continued importance of State and Territory rules to the operation of the statutory regime perpetuates one of the flaws of the previous arrangements, under which there was a separate statutory scheme for registration of judgments in each State and Territory. In his Second Reading Speech on the FJA, the Attorney-General, Mr Duffy, observed that:
"[t]he problem with the current scheme has not been the legislation itself but rather the multiplication of effort involved in implementing and keeping arrangements up to date under the various State and Territory laws. Under the current scheme there is invariably a long delay in implementing arrangements in all jurisdictions."[60]
Where the operation of the scheme depends upon the State and Territory court rules, this problem will still lurk in the background.
Differences between common law and statutory enforcement regimes. If it is sought to enforce a foreign judgment against an overseas party, one key difference between the statutory and common law regimes is the requirement that originating process be served under the latter but not the former. There must therefore be a ground of overseas service in common law but not statutory enforcement proceedings.[61] As previously observed, not all Australian court rules permit overseas service of originating process in a common law enforcement action.
Additionally, the grounds upon which judgments may be enforced differ between common law and Act. Both put the extent of the foreign court's cognisable jurisdiction in issue. To enforce a foreign judgment at common law, the plaintiff must prove that the foreign court did not exceed the jurisdiction cognisable at common law.[62] The Act, meanwhile, provides that where a judgment debtor applies to have registration set aside, an Australian court must accede to that application if satisfied that the foreign court lacked jurisdiction, as defined in the Act.[63]
In neither case does the term "jurisdiction" refer to the jurisdictional rules actually applicable to the foreign court.[64] In some instances, also, the common law conception of jurisdiction has been modified in such a way as to harmonise it with the statutory conception. For instance, there are several circumstances in which the common law previously regarded a party as having voluntarily submitted to a foreign court's jurisdiction but which are expressly excluded by the Act.[65] In this instance, the Act's definition applies to judgment enforcement both under the Act and at common law.[66]
Beyond this, though, lie significant differences. The statutory definition of "jurisdiction"[67] is both more and less generous to judgment creditors than the common law. Where it is less generous, it appears the common law cannot be called in aid, as the statutory definition has been treated as exhaustive.[68]
For instance, the Act recognises a foreign court as having jurisdiction over a corporation if its principal place of business was in the forum, whereas at common law any office suffices.[69] Further, it seems mere physical presence of the judgment debtor within the foreign court's jurisdiction is sufficient at common law, whereas the Act requires not mere presence but rather residence.[70] Again, there is no common law authority for any rule denying the foreign court's jurisdiction where it entertains an action brought in contravention of an exclusive choice of court or arbitration agreement, yet that rule has found its way into the Act.[71] There are cases, therefore, where the common law, but not the Act, recognises a foreign court's jurisdiction. In such circumstances, the judgment may be enforced at common law (assuming other criteria are satisfied) but not under the Act.[72]
This is surprising. It seems to accord better with the rationale of the Act that if there are to be discrepancies with the common law, they should favour judgment creditors utilising the statutory scheme. Apparently, the Act aims to facilitate enforcement of foreign judgments delivered in countries that have reciprocity arrangements with Australia. It seems such enforcement should be easier than in the case of judgments from countries without those arrangements. One would expect, then, that enforcement under the Act would be possible in a broader, rather than more narrow, range of circumstances than at common law.
Of course, the common law may in some respects be considered overly ready to recognise a foreign court's jurisdiction. That may be true, for example, in proceedings brought in contravention of an arbitration or choice of court clause. There are good reasons for modifying the common law in this respect. The Act introduces a more sensible rule but, surprisingly, that rule applies only to actions brought under the statutory scheme. The Act does not, in this regard, modify the rules applicable in common law actions.[73]
Differences with the TTPA. Finally, it should be observed that the TTPA will, when it comes into force, enact another, different set of rules applying only to New Zealand judgments. These may be enforced immediately upon registration under the TTPA, with no requirement to await the elapse of a period within which the judgment debtor could seek to have registration set aside.[74] That is not the position under the FJA.[75] More significantly, too, there are very few grounds upon which registration under the TTPA could be set aside.[76] There is no occasion to inquire into the New Zealand court's jurisdiction. Further, the TTPA regime, unlike the common law and FJA, is not confined to money judgments.[77]
Impacts of the present state of the law
Impact of the current incoherence on parties and litigants
Jurisdiction
According to a recent Attorney-General's Department Discussion Paper, the current disunity in Australian rules of personal jurisdiction leads to:[78]
- confusion for parties to litigation with a cross-border element;
- arbitrariness in the establishment of personal jurisdiction over defendants; and
- unfair advantage to well-resourced, mobile litigants who are able to engage in forum shopping, thereby exploiting differences between jurisdictions in a way that less well-resourced parties cannot.
Professor Dickinson has labelled the present state of affairs "deeply unattractive".[79]
It is difficult to gainsay these observations. Consider, for example, a foreign corporation that has entered into identical contracts with two separate Australian companies. The foreign corporation has no other relevant connection with Australia. One of the Australian companies ("Company A") carries on business exclusively in Western Australia. The other ("Company B") carries on almost all its business in Western Australia but also happens to have a minor operation in Queensland. The contracts have no other relevant connection to any Australian jurisdiction. Assume the foreign corporation breaches each contract in identical fashion. Company A cannot serve originating process on the corporation. But Company B can, by virtue of the Queensland rule allowing overseas service in actions on a contract to which a person carrying on business in the State is party. This not only offends against the principle that relevantly similar cases ought to be treated similarly, but also makes a foreign party's answerability before Australian courts appear arbitrary. Of course, the Queensland court may, in its discretion, decline to exercise jurisdiction. The important point, though, is that whether forum considerations even enter the picture seems a matter of happenstance.
Nor are the effects of this arbitrariness confined to the actual conduct of litigation. Foreign entities must take account of their litigation risk in various Australian jurisdictions when making commercial decisions. As Professor Dickinson has observed, the variation in rules across the nation may make companies in some jurisdictions less competitive than others.[80] Additionally, though, the uncertainty brought by fragmented jurisdictional rules adversely affects the entire country's attractiveness as a venue for investment. The complexity of Australia's fractured jurisdictional regime increases the cost of advice on cross-border transactions. Such increased costs, of course, are also borne if and when litigation is initiated.
Recognition and execution of foreign judgments
Foreign parties face uncertainty not only as to whether they will be subject to an Australian court's jurisdiction but also as to whether a foreign judgment affecting them will be enforced here. There are at least three reasons for which this is concerning.
First, parties' inability to predict whether their assets in Australia will be susceptible to enforcement of a foreign judgment results in doubt as to how cross-border transactions ought to be structured, particularly with respect to the choice of dispute resolution forum.
Second, dealing with Australian entities becomes a riskier proposition than would otherwise be the case. Such entities might turn out enforcement-proof.
Third, cross-border transactions and litigation involving Australian parties are more costly than necessary, at least from the perspective of foreign entities. Costs are increased by the de facto requirement that a foreign party, perhaps at considerable expense, resort to Australian courts (rather than its favoured forum) in order to be certain that any favourable judgment will be enforced. They are also increased by the sheer complexity of our various regimes.
Current disadvantages for the nation
Here is how one American commentator has summed up the need, from a national perspective, for coherence in rules governing jurisdiction and enforcement of judgments:
"Effective dispute resolution processes are critical to a well-functioning global economy, and effectiveness for this purpose requires, just as it does for a national or regional economy, generous recognition and enforcement of judgments. Key to such generosity, in turn, are acceptable jurisdiction standards and, experience has demonstrated, reciprocity. Finally, mutual assurance that reciprocity will in fact be forthcoming requires very considerable uniformity and certainty in the governing legal rules."[81]
Australia has an interest in successful negotiation of bilateral and multilateral agreements fostering greater international harmony when it comes to judgment enforcement and jurisdiction. It has been observed that "simultaneous bargaining on jurisdiction and judgment recognition and enforcement [are] now the norm in treaty making."[82]
As things stand, however, foreign states may reasonably conclude that implementation of any bilateral or multilateral agreement requiring alteration of the Australian jurisdictional rules would be drawn-out and uncertain.[83] In other words, lack of coherence as to jurisdictional matters makes it more difficult to negotiate agreements on judgment enforcement.
Of course, we should be careful before jettisoning the precepts of federalism for the sake of accommodating international negotiating counterparts. Yet it is unclear what benefits the present federal fragmentation brings. As Stephen Burbank has put it in the American context:
"Federalism is important in the United States. It is also important that the United States be able to participate effectively in a global economy and that those charged with the conduct of the country's foreign affairs be able to make, and that the country abide by, international agreements that are designed to facilitate transnational commercial activity."[84]
Those remarks are germane also to Australia. That is particularly so where transactions between Australian and foreign-based parties in the resources sector are in many respects the lifeblood of the economy.
Moreover, it seems contrary to the national interest that the taxpayer should have to fund the elaborate process required each time there is a need to reform the various States' and Territories' rules as to personal jurisdiction. At present, any meaningful change to the law requires the coordinated effort of all State and Territory governments, as well as of the Commonwealth.
Perhaps the words of Alexander Hamilton at the end of the eighteenth century concerning the place of Admiralty and maritime jurisdiction in the United States Constitution are apposite. There, the importance of showing a uniform, coherent national face to the outside world was recognised. That great American statesman wrote:
"The most bigotted idolizers of state authority have not thus far shewn a disposition to deny the national judiciary the cognizance of maritime causes. These so generally depend on the laws of nations, and so commonly affect the rights of foreigners, that they fall within the considerations which are relative to the public peace."[85]
Though directed to a specific subject (Admiralty and maritime law), the point is perhaps of force generally in relation to jurisdictional rules affecting foreigners in their legal rights. Yet in today's international commercial environment, and in light of Australia's place in the region, a factor of even greater importance than the elimination of provincialism is a need for the nation to integrate harmoniously with the international community, in particular this region.
How might greater coherence be achieved?
The call for greater coherence in private international law, whether at a national or transnational level, is not new. Today, however, the call may be made with more urgency than ever. As one commentator has put it, the movement for greater coherence in private international law is driven by
"the growing need for legal certainty in a world where people and corporations have seemingly unfettered mobility. Ensuring legal certainty places enormous responsibility on those in charge of managing justice …"[86]
The question, though, is how to overcome the constraints of federalism to provide greater certainty.
The constitutional position
This is not the place to examine the full extent of the Commonwealth's power over private international law. It suffices to note the importance of domestic private international law rules to Australia's foreign relations. Australian courts' exercise of jurisdiction over overseas defendants and enforcement of foreign judgments seem quintessentially to fall within the ambit of the Commonwealth parliament's external affairs power.[87] Jurisdictional rules concern parties physically outside the country, and the recognition and enforcement of foreign judgments appears to be a matter of comity between Australian and foreign governments.[88] As has been observed, the content of our private international laws affects the Commonwealth government's ability to negotiate international agreements.
The options
The Attorney-General's Department has put forward three possible forms that a reform of Australian private international law could take:[89]
- targeted amendments to existing legislation;
- 'soft law' options such as model laws or frameworks; and
- a federal private international law code.
This article will address the last of these. It will also briefly mention international harmonisation efforts in which Australia is taking part.
Federal codification
Debates over the merits of codes stretch back to the Ancients. It is beyond this article's scope to explore the Aristotelian case for flexibility, or Benthamite arguments for legal codification. When it comes to overseas service, each Australian jurisdiction has its own "long-arm" code. The problem with this system is not so much that it lacks the malleability of a purely common law regime but that the various codes present a fragmented national picture. A benefit of legislative rules is supposed to be legal certainty.[90] Yet the current state of affairs produces the opposite.
Equally, as to enforcement of foreign judgments, the problem is neither any undue flexibility of the common law regime nor any rigidity in the statutory framework. The difficulty is the incoherence resulting from placing these side by side.
The problem of incoherence may well be solved, it is submitted, by a federal private international law statute. After all, if codification is acceptable at the State, Territory and Federal Court levels, why would a uniform code not be acceptable at a national level? The TTPA and FJA provide small-scale models.[91] It is, of course, true that the TTPA was enabled by an agreement between the Australian and New Zealand governments. It would be wrong to advocate that the precise TTPA provisions be replicated on a broader scale. The TTPA does stand as proof, though, that federal statutes may iron out private international law inconsistencies.
It might be objected that codification would serve only to petrify what should be a dynamic and responsive area of the law. One advantage of federalism, after all, is that State and Territory governments are able to respond more swiftly than a central government to constituents' concerns. Placing private international law rules entirely within the federal government's hands might, on this view, be a mistake.
Yet this argument has diminished force in a world where foreign investors increasingly deal with Australia not as a collection of States and Territories but as a nation. If there was ever a time when private international law rules were of primarily local concern, it is submitted that that time has passed. Certainly, we will need to adapt to rapid technological and other advances that increase the volume and complexity of cross-border transactions. But are the States, Territories and Commonwealth, acting separately, the best agents to ensure that adaptation? Is it of any avail to litigants if a few jurisdictions, acting separately, modernise their rules relating to overseas service, while others lag behind? In this domain, there is a good argument that coherence is more valuable than local responsiveness.
The Hague "Judgments Project"
For some time now, there have been international efforts to streamline rules governing jurisdiction and recognition and enforcement of judgments. At the Hague Conference on Private International Law in the 1990s, the United States proposed a multilateral treaty on the subject. It was an ambitious goal. The move was prompted by the Americans' concern over US judgments' lack of enforcement abroad.[92]
Having failed to reach full consensus, the Conference decided in 2003 to narrow its focus to jurisdiction in the context of choice of court agreements. The eventual result was the 2005 Hague Choice of Court Convention, which Australia has neither signed nor ratified. It was a more modest outcome than had originally been anticipated.
Nevertheless, the Conference has revived the original project (the "Judgments Project") of a convention dealing more broadly with jurisdiction and foreign judgments. In February this year, the Working Group of the Judgments Project met for the first time. Australia was a participant. The Group has been tasked with preparing provisions to be included in a future convention.[93] It is scheduled to reconvene in October this year. In its March 2013 report on the progress of the "Judgments Project", the Conference's Permanent Bureau specifically acknowledged the "significant contribution" of the Australian government.[94] Completion of, and Australian accession to, a viable multilateral instrument in this domain would greatly benefit Australian and international commerce.
The difficulty with any general treaty of enforcement of court judgments reflects, at one level, the difficulties faced by sovereign legal systems when compared to arbitration:
1. mistrust of the competence of national political or governmental processes, whether because of corruption or simple provincialism;
2. compounded by the deep procedural suspicion of jury verdicts in the United States and political interference in other countries; and
3. the broad trust in the arbitral system under the New York Convention on the Recognition and Enforcement of Arbitral Awards and UNCITRAL Model Law.
Australia's interests and those of the region may lie in selective bilateral or regional arrangements drawing together major trading partners. Further, consideration might be given to bilateral or regional agreements setting up courts or tribunals administering regional law in law areas with uniform enforcement. This would constitute a transnational or "anational" response to the difficulties of enforcement.
Conclusion
Australia needs a coherent private international law regime. We need it because our economy depends in large part upon cross-border transactions with overseas parties. Currently, federalism is not serving transnational commerce well. It is to be hoped that Australian lawmakers are able to work within the constraints of our federation to produce a more coherent picture, allowing Australia to face the world with greater confidence.
[*] Chief Justice of the Federal Court of Australia. This article is based on a paper delivered at the Sydney Centre for International Law conference, 'Facing Outwards: Australian Private International Law in the 21st Century' (Sydney Law School, 10 April 2013).
[†] Associate to the Hon James Allsop, Chief Justice of the Federal Court of Australia.
[1] The same is true in the United States, following International Shoe Co v Washington, 326 US 310 (1945), the difference being that these long-arm rules are all kept within a certain range by the US Constitution's Due Process Clause: Eugene F Scoles et al, Conflict of Laws (Thomson West, 4th ed, 2004) 321.
[2] See Martin Davies, Andrew Bell and Paul Le Gay Brereton, Nygh's Conflict of Laws in Australia (LexisNexis, 8th ed, 2010) xxii. For the purposes of this article, the High Court rules are not considered.
[3] Federal Court Rules 2011 (Cth) r 10.43(1)(a).
[4] FCR 2011 (Cth) r 10.43(4)(c).
[5] Rules of the Supreme Court 1971 (WA) O 10 r 4.
[6] Uniform Civil Procedure Rules 1999 (Qld) r 124(1)(m); Uniform Civil Procedure Rules 2005 (NSW) sch 6(q).
[7] Even within this category, though, there may be a divergence. The NSW rule stipulates that the person whose membership is affected must be the person served. This may not be a requirement in Queensland, though. The Queensland rule simply refers to the proceeding "affecting a person in relation to the person's membership".
[8] Court Procedures Rules 2006 (ACT) r 6501(1)(m); FCR 2011 (Cth) r 10.42 items 8, 24.
[9] RSC 1971 (WA) O 10 r 1(1)(a)(ii).
[10] Supreme Court Rules 2000 (Tas) r 147A(1)(r)(i).
[11] UCPR 1999 (Qld) r 124(1)(g)(ii); CPR 2006 (ACT) r 6501(1)(g)(ii).
[12] UCPR 1999 (Qld) r 124(1)(t)(i); UCPR 2005 (NSW) sch 6(r); SCR 2000 (Tas) r 147A(1)(k)(i).
[13] Davies, Bell and Brereton, above n 2, 53.
[14] Acts Interpretation Act 1954 (Qld) s 6. By virtue of the Statutory Instruments Act 1992 (Qld) ss 14(1) and 14A, that definition of "Act" holds true for the Uniform Civil Procedure Rules 1999 (Qld). Cf Interpretation Act 1987 (NSW) s 12(1)(b) (a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of NSW); s 65 (an Act passed by Parliament, or by any earlier legislature of NSW, may be referred to by the word "Act" alone); Acts Interpretation Act 1931 (Tas) s 5 (the word "Act" used in relation to a legislative enactment, shall include all Acts and ordinances which have been duly made and passed by the Parliament of Tasmania or by any council or authority empowered to make and pass laws in Tasmania, and to which assent has been duly given by or on behalf of the Sovereign.)
[15] It does not appear that this definition could be displaced by contrary intention in the Rules: Statutory Instruments Act 1992 (Qld) s 19; sch 2.
[16] UCPR 1999 (Qld) r 124(1)(t)(ii).
[17] This view is supported by the LexisNexis Civil Procedure Practice (Qld). In relation to r 124(t)(i), the author states that the rule "makes a clear distinction between State and Commonwealth legislation, referring in its first limb to an 'Act' (defined by s 6 of the Acts Interpretation Act 1954 to mean 'an Act of the Queensland Parliament') and in its second limb to 'an Imperial or Commonwealth Act affecting property in Queensland'."
[18] Interpretation Act 1987 (NSW) s 12(1)(b) (a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of NSW); s 65 (an Act passed by Parliament, or by any earlier legislature of NSW, may be referred to by the word "Act" alone); Acts Interpretation Act 1931 (Tas) s 5 (the word "Act" used in relation to a legislative enactment, shall include all Acts and ordinances which have been duly made and passed by the Parliament of Tasmania or by any council or authority empowered to make and pass laws in Tasmania, and to which assent has been duly given by or on behalf of the Sovereign.)
[19] As to State legislation operating as "surrogate" Commonwealth law under Judiciary Act 1903 (Cth) s 79, it probably goes without saying that the language of the Queensland, NSW and Tasmanian court rules (construed as mandated by the Interpretation Acts) remains wide enough to encompass such legislation.
[20] FCR 2011 (Cth) r 10.42 items 14, 15; Judiciary Act 1903 (Cth) s 39B(1A)(c). See 'Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia' (paper given by Justice James Allsop to the NSW Bar Association, 21 October 2003).
[21] Supreme Court Civil Rules 2006 (SA) r 40(1)(k).
[22] Queensland (UCPR 1999 (Qld) r 124(1)(q)); Northern Territory (Supreme Court Rules (NT) r 7.01(1)(o)); Victoria (Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 7.01(1)(n)); Western Australia (RSC 1971 (WA) O 10 r 1(1)(l)); ACT (CPR 2006 (ACT) r 6501(1)(q)).
[23] UCPR 1999 (Qld) r 124(1)(q); CPR 2006 (ACT) r 6501(1)(q).
[24] RSC 1971 (WA) O 10 r 1(1)(l); SC(GCP)R 2005 (Vic) r 7.01(1)(n); SCR (NT) r 7.01(1)(o).
[25] SCCR 2006 (SA) r 40(1)(k).
[26] FCR 2011 (Cth) r 10.42 item 14.
[27] SCCR 2006 (SA) r 40(1)(a)(i); CPR 2006 (ACT) r 6501(1)(b)(i).
[28] RSC 1971 (WA) O 10 r 1(1)(a)(i); UCPR 2005 (NSW) sch 6(j); SCR 2000 (Tas) r 147A(1)(e); FCR 2011 (Cth) r 10.42 item 21.
[29] Saltram Wine Estates Pty Ltd v Independent Stave Co (1992) 57 SASR 156.
[30] UCPR 1999 (Qld) r 124(1)(s).
[31] SCR (NT) r 7.01(1)(a); SC(GCP)R 2005 (Vic) r 7.01(1)(a).
[32] FCR 2011 (Cth) r 10.42 item 6; UCPR 1999 (Qld) r 124(1)(c); UCPR 2005 (NSW) sch 6(m); SCCR 2006 (SA) r 40(1)(a)(ii); SCR 2000 (Tas) r 147A(1)(n); CPR 2006 (ACT) r 6501(1)(c).
[33] RSC 1971 (WA) O 10 r 1(1)(b); SC(GCP)R 2005 (Vic) r 7.01(1)(b); SCR (NT) r 7.01(1)(b).
[34] RSC 1971 (WA) O 10 r 1(1)(j); SC(GCP)R 2005 (Vic) r 7.01(1)(m); SCR (NT) r 7.01(1)(m), (n).
[35] UCPR 2005 (NSW) sch 6(u); SCCR 2006 (SA) r 40(1)(j); SCR 2000 (Tas) r 147A(1)(t); CPR 2006 (ACT) r 6501(1)(w).
[36] In the former category are NSW, South Australia, Tasmania and the ACT. Western Australia, Queensland, Victoria, the Northern Territory and the Federal Court fit within the latter.
[37] Davies, Bell and Brereton, above n 2, 62.
[38] Ibid 35.
[39] Ibid 62; Matthews v Kuwait Bechtel Corp [1959] 2 QB 57.
[40] FCR 2011 (Cth) r 10.42; UCPR 1999 (Qld) r 124(1)(x); SCR 2000 (Tas) r 147A(1); CPR 2006 (ACT) r 6501(1)(y).
[41] UCPR 2005 (NSW) sch 6(w).
[42] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.
[43] Trans-Tasman Proceedings Act 2010 (Cth) s 19(1).
[44] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.
[45] Attorney-General's Department, 'Reducing Legal Complexity of Cross-Border Transactions and Relationships' (Discussion Paper, undated) [74].
[46] UCPR 2005 (NSW) r 11.7(2)(b); CPR 2006 (ACT) r 6503(3)(c).
[47] SC(GCP)R 2005 (Vic) r 7.05(2)(b).
[48] British South Africa Co v Companhia de MoÇambique [1893] AC 602.
[49] Jurisdiction of Courts (Foreign Land) Act 1989 (NSW) s 3.
[50] Civil Law (Wrongs) Act 2002 (ACT) s 220.
[51] Jurisdiction of Courts (Foreign Land) Act 1989 (NSW) s 4.
[52] Civil Law (Wrongs) Act 2002 (ACT) s 220(3).
[53] Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491, 503 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). See also Davies, Bell and Brereton, above n 2, 172.
[54] Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491, 503 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[55] Studorp Ltd v Robinson [2012] NSWCA 382, [5] (Allsop P).
[56] Foreign Judgments Act 1991 (Cth) s 5.
[57] Foreign Judgments Regulations 1992 (Cth) sch 1.
[58] No regulation enabling enforcement of non-monetary judgments has yet been made (see Foreign Judgments Act 1991 (Cth) s 5(6)).
[59] An example of this is the manner in which s 6(3) of the Act picks up the rules of the various States and Territories. Under that provision, the court's obligation to register a judgment is subject to the applicant proving certain matters set out in the State and Territory rules. These rules are not all the same. Some require evidence of the nature of the claims to which the foreign judgment relates; others do not. Some require that the applicant adduce evidence that there is no stay in force in respect of any part of the foreign judgment; others do not. Though the practical effects of these differences may be minor, the existence of the differences highlights the fact that even the ostensibly streamlined regime enacted by the Commonwealth may not operate uniformly across the nation.
[60] Commonwealth, Parliamentary Debates, House of Representatives, 29 May 1991, 4218 (Michael Duffy, Attorney-General).
[61] Hunt v BP Exploration Co (Libya) Ltd (1979) 144 CLR 565. See also Reid Mortensen, Richard Garnett and Mary Keyes, Private International Law in Australia (NexisNexis Butterworths, 2nd ed, 2011) 161.
[62] See Davies, Bell and Brereton, above n 2, 808.
[63] Foreign Judgments Act 1991 (Cth) s 7(2)(a)(iv).
[64] The extent of foreign courts' jurisdiction cognisable under Australian law is often, no doubt, much narrower than the jurisdiction authorised by the rules applicable to the foreign court.
[65] See Davies, Bell and Brereton, above n 2, 851; Mortensen, Garnett and Keyes, above n 61, 143.
[66] Foreign Judgments Act 1991 (Cth) ss 7(5), 11 (the latter applies to actions at common law).
[67] Foreign Judgments Act 1991 (Cth) s 7(3).
[68] Sharps Commercials Ltd v Gas Turbines Ltd [1956] NZLR 819; Crick v Hennessy [1973] WAR 74; Davies, Bell and Brereton, above n 2, 848.
[69] Foreign Judgments Act 1991 (Cth) s 7(3)(a)(iv); Davies, Bell and Brereton, above n 2, 851; Lord Collins of Mapesbury et al (eds), Dicey, Morris and Collins on the Conflict of Laws (Sweet & Maxwell, 15th ed, 2012) vol 1, 754.
[70] Foreign Judgments Act 1991 (Cth) s 7(3)(a)(iv); Lord Collins of Mapesbury et al (eds), above n 69, 754.
[71] Foreign Judgments Act 1991 (Cth) s 7(4)(b); Lord Collins of Mapesbury et al (eds), above n 69, 712.
[72] Davies, Bell and Brereton, above n 2, 848.
[73] In the UK, by contrast, the exclusion of jurisdiction in proceedings breaching arbitration or choice of court clauses applies to all actions for recognition and enforcement, whether under statute or common law: Civil Jurisdiction and Judgments Act 1982 (UK) s 32; Lord Collins of Mapesbury et al (eds), above n 69, 712.
[74] Trans-Tasman Proceedings Act 2010 (Cth) s 74.
[75] Foreign Judgments Act 1991 (Cth) s 6(10).
[76] See Trans-Tasman Proceedings Act 2010 (Cth) s 72.
[77] See Mortensen, Garnett and Keyes, above n 61, 138.
[78] Attorney-General's Department, above n 45, [44].
[79] Andrew Dickinson, 'The Future of Private International Law in Australia' (Paper presented at the Sydney Centre for International Law Seminar, Sydney, 16 May 2011).
[80] Ibid.
[81] Stephen Burbank, 'Federalism and Private International Law: Implementing the Hague Choice of Court Convention in the United States' (University of Pennsylvania Law School Public Law and Legal Theory Research Paper Series, Research Paper No. 06-27, 2006) 26.
[82] Ibid 10.
[83] The accuracy of this conclusion is perhaps illustrated by the time that has elapsed (and continues to elapse) since Australia and New Zealand signed the Agreement on Trans-Tasman Court Proceedings and Regulatory Enforcement in July 2008. The TTPA was passed in 2010, but the necessary arrangements are not yet in place to enable its commencement. The Agreement provides that the two governments shall notify each other when domestic arrangements have been completed to allow the Agreement to enter into force. That entry into force is to occur 30 days after the later of the two notifications.
[84] Burbank, above n 81, 25.
[85] Alexander Hamilton, The Federalist No. 80. See Alexander Hamilton, James Madison and John Jay, The Federalist (Lawbook Exchange, 2005) vol 2, 306-307.
[86] American Law Institute and UNIDROIT, Principles of Transnational Civil Procedure (Cambridge University Press, 2006) xxxiv-xxxv.
[87] Constitution s 51(xxix); see also Dickinson, above n 79.
[88] See Thomas v Mowbray (2007) 233 CLR 307, 364 (Gummow and Crennan JJ).
[89] Attorney-General's Department, above n 45, [191].
[90] Cf the brilliant refutation of this notion in F A Hayek, Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy (Routledge & Kegan Paul, 1973) vol 1, 116-118.
[91] Part 2 of the TTPA codifies the rules as to service of process in New Zealand. Part 3 codifies the circumstances in which Australian courts may decline to exercise jurisdiction on the ground that a New Zealand court is a more appropriate forum. Meanwhile Part 7 governs the recognition and enforcement of New Zealand judgments in Australia.
[92] Burbank, above n 81, 2. The Hague Convention of 1 February 1971 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters was already in existence. As was acknowledged at the time of the American proposal, though, that Convention had not been a success: Hague Conference on Private International Law, 'Some reflections of the Permanent Bureau on a general convention on enforcement of judgments' (Preliminary Document No. 17, May 1992) [3].
[93] Hague Conference on Private International Law, 'Ongoing Work on International Litigation' (Preliminary Document No. 3, March 2013) annex 1.
[94] Ibid 7.
