Conflict of Laws
Assignment 1 (revision question 1)
Summary of the principles of conflict of laws relevant to the proceedings the plaintiff
Gerry has commenced in the Supreme Court of New South Wales against the
defendant Simone:
1.
Jurisdiction
The Supreme Court of New South Wales has jurisdiction over Simone based
on her presence in New South Wales at the date of service of the originating
process: Gosper v. Sawyer (1985) 160 CLR 548; Laurie v. Carroll (1958)
98 CLR 310. For this purpose, Simone’s fleeting or transient presence in
New South Wales is sufficient: HRH Maharanee of Baroda v. Wildenstein
[1972] 2 QB 283.
2.
Discretionary non-exercise of jurisdiction
There is no information that the sale contract included an exclusive foreign
jurisdiction clause such as an agreement to litigate only in Tahiti in the event
of a dispute. If the sale contract did include such a term, the Supreme Court of
New South Wales may decline to exercise jurisdiction if Simone applies for a
stay of proceedings. For the principles relevant to the exercise of this
discretion : see The Eleftheria [1970] P 94.
Simone also may seek to invoke the forum non conveniens (“clearly
inappropriate forum”) principle.
Under this principle, the Supreme
Court of New South Wales may decline to exercise jurisdiction if Simone
demonstrates that the proceedings in New South Wales are oppressive or
vexatious. For the principles relevant to the exercise of this discretion: see
Voth v. Manildra Flour Mills (1990) 171 CLR 538.
3.
Substance and procedure : limitation of actions
If the French limitation law is of a procedural nature, expiry of the limitation
period under French law will not affect the proceedings in New South Wales
as all procedural issues are governed by the lex fori (New South Wales law):
see Subbotovsky v. Waung (1968) 72 SR (NSW) 242. However, if the French
limitation law is of a substantive nature, and French law is the lex causae (the
applicable substantive law i.e. the proper law of the contract in respect of the
contract claim or the lex loci delicti in respect of the tort claim),
expiry of the limitation period under French law will bar the proceedings in
New South Wales. For the test which determines whether a limitation law is
substantive (extinguishing the right) or procedural (barring the remedy): see
The Commonwealth v. Mewett (1997) 146 ALR 299. Note the effect of the
Choice of Law (Limitation Periods) Act 1993 (NSW) where the law of an
Australian state or territory (or New Zealand) is the applicable substantive
law. Query whether, by judicial decision, the same position applies where, as
is likely in the present case, French law is the applicable substantive law: see
RA.CoL 06 Assign 1 Revision Question 1
Dyno Wesfarmers v. Knuckey [2003] NSWCA 375 (Handley JA). Whether
French law is the applicable substantive law in the present case is discussed
below.
4.
Proof of foreign law
The Supreme Court of New South Wales will not take judicial notice of
foreign law (French law in the present case). If Gerry or Simone wishes to
rely on French law as a basis of claim or defence the onus is on that party to
plead and prove the foreign law by expert evidence (the common law method
of proof) and/or by the statutory method of proof provided in the Evidence Act
1995 (NSW) ss 174, 175. However, in the absence of proof of foreign law,
the Supreme Court of New South Wales may presume that French law is the
same as New South Wales law.
5.
Choice of law in contract
There is no information that the sale contract included an express choice of
law clause. In the absence of an express choice of law and assuming there has
been no inferred choice of law such as might be the case if the sale contract
included an exclusive jurisdiction clause, the proper (or governing) law of the
sale contract is the system of law with which the transaction has its closest and
most real connection. An evaluation of the relevant circumstances, such as
the place where the sale contract was made and performed, would indicate
that French law is the proper law of the contract : see Mendelson-Zeller Co v.
T and C Providores [1981] 1 NSWLR 366; Garstang
v.
Cedenco
JV
Australia [2002] NSWSC 144. Accordingly, French law will determine
whether Simone is liable to Gerry for breach of contract (a substantive issue).
Arguably, however, whether Gerry is entitled to the remedy of rescission and
return of the purchase price is a procedural issue governed by New South
Wales law as the lex fori.
6.
Choice of law in tort
If Simone has committed a tort (misrepresentation), the place where the tort
was committed is Tahiti.
See the test formulated in Distillers Co
(Biochemicals) v. Thompson [1971] AC 458. Accordingly, the applicable
substantive law is French law: Regie Nationale des Usines Renault v. Zhang
(2002) 187 ALR 1. However, if Simone is liable under French law for
misrepresentation, the amount of damages recoverable by Gerry may be
treated as a procedural issue governed by New South Wales law as the lex
fori. This issue was left undecided by the High Court of Australia in Zhang’s
case.
7.
Simone’s return to Tahiti before service of the originating process
If Simone left New South Wales after issue (but before service) of the
originating process, she will be subject to the common law jurisdiction of the
Supreme Court of New South Wales if, at the time of leaving the state, she
knew of the issue of the originating process or left New South Wales with
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intent to evade service: Laurie v.Carroll
Sheahan (1996) 62 FCR 417.
(1958) 98 CLR 310; Joye v.
If Simone is not subject to the common law jurisdiction of the court, the issue
then arises whether the originating process may be served on her in Tahiti
under the Uniform Civil Procedure Rules 2005 (NSW) Schedule 6 paras (a),
(b), (c) (in respect of the contract claim) or paras (a), (d), (e) (in respect of
the tort claim).
As Tahiti was the place where the sale contract was made and the place where
the alleged breach of the sale contract occurred and French law is the proper
law of the sale contract, there appears to be no ground on which the
originating process in respect of the contract claim may be served out of the
jurisdiction. So far as Gerry’s tort claim is concerned, service of the
originating process out of the jurisdiction may be based on para (e) if Gerry
suffered any tort damage in New South Wales caused by Simone’s
misrepresentation in Tahiti: see Brix-Neilsen v. Oceaneering Australia [1982]
2 NSWLR 173.
________________________________________
Ross Anderson
LEC lecturer
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