Recent Judicial Aberrations in Australian Private International Law

By Harder, Sirko | Australian International Law Journal, Annual 2012 | Go to article overview

Recent Judicial Aberrations in Australian Private International Law


Harder, Sirko, Australian International Law Journal


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. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Recent Judicial Aberrations in Australian Private International Law
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.