Recent Judicial Aberrations in Australian Private International Law

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Abstract

This article discusses three Australian first-instance decisions of 2010 On matters of private international law. The cases are Singh v Singh, where an injunction restraining a person from participating in foreign criminal proceedings was granted; Independent Trustee Services Ltd v Morris, where a foreign judgment was recognised at common law on the ground that the judgment-debtor was a citizen of a foreign country; and Nygb v Kasey, where a marriage celebrated in a foreign country without complying with the form requirements of that country's law was recognised at common law. This article criticises the three decisions with regard to their outcome and the methodology used.

I Introduction

Australian private international law is still largely governed by common law principles. The development of the common law is based on the doctrine of precedent, which requires courts to follow prior decisions that are binding and cannot be distinguished. Where such precedent is absent, the court is theoretically free to make any decision. However, the court's decision in such a case ought to be informed by an examination of non-binding judicial statements, views expressed by commentators, and policy considerations. This article discusses three Australian first-instance decisions of 2010 in which a novel approach was taken without the decision being fully informed in the way described. There is one case each from the three areas of private international law, namely jurisdiction (including the restraint of foreign proceedings), recognition of foreign judgments, and choice of law. The cases are Singh v Singh, (1) where an injunction restraining a person from participating in foreign criminal proceedings was granted; Independent Trustee Services Ltd v Morris, (2) where a foreign judgment was recognised at common law on the ground that the judgment-debtor was a citizen of a foreign country; and Nigh v Kasey, (3) where a marriage celebrated in a foreign country without complying with the form requirements of that country's law was recognised at common law.

II Injunction Restraining Participation in Foreign Criminal Proceedings

Courts in common law countries have assumed the power to restrain parties from commencing or continuing foreign (4) civil proceedings in certain circumstances. (5) In CSR Ltd v Cigna Insurance Australia Ltd, (6) the High Court of Australia laid down that Australian common law (in the sense of judge-made law, including equity) allows courts to grant an anti-suit injunction for either of two purposes. One purpose is the protection of the court's own proceedings or processes. (7) An example is an (intended) foreign action to obtain the sole benefit of foreign assets while bankruptcy or winding-up proceedings are pending in Australia. (8) The other purpose is the restraint of unconscionable conduct or the unconscientious exercise of legal rights. (9) This purpose is engaged where (intended) foreign proceedings are vexatious or oppressive, or occur in breach of a promise not to litigate in that country. (10) Foreign proceedings may be vexatious or oppressive, for example, where proceedings in which complete relief may be had are pending in Australia and one party to those proceedings commences foreign proceedings between the same parties on the same subject matter. (11)

While the first purpose of granting an anti-suit injunction (protection of the court's own proceedings or processes) is largely uncontroversial, (12) the second purpose (restraint of unconscionable conduct or the unconscientious exercise of legal rights) is not. Anti-suit injunctions have been said to interfere, at least indirectly, with the administration of justice in the foreign country. (13) A direct interference would violate the principle of territorial sovereignty under customary international law, (14) but is said to be absent in cases of anti-suit injunctions because they operate in person am against the person restrained, not the foreign court itself. …