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CIVIL PROCEDURE EXAM NOTES – JURISIDCTION

Jurisdiction – NSW Courts A party in any civil proceedings must commence proceedings in a court that has the requisite jurisdiction [UCPR 8.1] The NSW Court Acts are the relevant procedural laws to determine jurisdiction. The purpose of these laws is to outline the subject matter that may be heard in each court. The laws also specify the territorial reach of the courts. Territorial jurisdiction is the term used to refer to the defendants over whom a court may exercise jurisdiction. When determining if a court has jurisdiction to hear a claim, we must consider: • Subject matter • Amount claimed • Territorial Reach 1. SUBJECT MATTER SUPREME COURT The Supreme Court has a wide jurisdiction – Supreme Court Act 1970 (NSW) • [s 23 SCA] – “the Court shall have all jurisdiction which may be necessary for the administration of justice in NSW”. The Supreme Court has an equitable jurisdiction : Part 4 ‘Law and Equity’ + Part 5 – ‘Powers’ o [s 66 SCA] – power to grant injunctions o [s 63 SCA] – ‘the Court shall grant all such remedies in respect of any legal or equitable claim…so that all matters in controversy may be completely and finally determined’ •

Although a wide jurisdiction, it is not unlimited per se. For instance, it is restricted by the Constitution and the effect of Federal and High Court Jurisdictions + jurisdiction may be enlarged, reduced, modified or excluded by legislation [City of Collingwood v VIC]

Inherent Jurisdiction of the Supreme Court: • The jurisdiction of the SC includes all those powers that are necessary to enable it to act effectively and to control its own proceedings and to prevent the obstruction or abuse of its process. This includes: o Making practice directions: [Langley v North West Water Authority]. o Awarding costs and making orders for security of costs: [Rajski]. o Stay or striking out actions or pleadings which are frivolous, vexatious or an abuse of the court’s process: [General Steel Industries Inc].

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CIVIL PROCEDURE EXAM NOTES – JURISIDCTION

Federal Jurisdiction of the Supreme Court: • [s 39(2) Judiciary Act] confers Federal jurisdiction on state courts in all matters that are within the original, non-exclusive jurisdiction of the HC to the exclusion of the state jurisdiction: [Fenton v Mulligan]. See also Section 109 of the Constitution that excludes state legislation to the extent that it is inconsistent with commonwealth law. •

NB: Supreme Courts that exercise Federal jurisdiction continue to operate under state procedural law - the state procedural law is ‘picked up’ by the federal jurisdiction. o If a state court is operating under federal jurisdiction, they don’t operate according to federal courts, they use procedures as if they’re a state court—they ignore federal procedures and transpose state procedures onto federal ones.

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Also, specific federal statutes confer federal jurisdiction on state courts eg Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) whereby state courts have the ability under the act to exercise original and appellate jurisdiction of the federal court (subject to restrictions relating to ‘special federal matters’).

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POLICY: This is to facilitate the timely and cost effective resolution of the matter by allowing the dispute between the parties to be determined together. This is known as the ‘autochthonous expedient’ . It is consistent with upholding the underlying purpose of s 56 of the CPA.

DISTRICT COURT [s 44 District Court Act] 1. Any matter that would be assigned to the common law division of the Supreme Court (subject to jurisdictional limit) a. Admin law b. Defamation c. Professional negligence d. General case management lists – money claims, contract claims, personal injury, personal property damage, claims for possession (excluding land), compensation to relatives claims 2. Any motor accident claim, irrespective of amount claimed. 3. Any work injury damages claim, irrespective of amount claimed. 4. Any proceedings transferred to the Court under s 146(1) of the CPA, irrespective of amount (if any claimed in those proceedings) 5. Specific legislation may confer on it jurisdiction e.g. Contracts Review Act. 2

CIVIL PROCEDURE EXAM NOTES – JURISIDCTION

LOCAL COURT [s 30 Local Court Act] 1. Proceedings on any money claim – any debt, demand or damage (whether liquidated or unliquidated) [s 29A LCA] 2. Proceedings to recover detained goods, or to recover the assessed value of detained goods 3. Can grant relief under Contracts Review Act 1980 (NSW) (s 32 - May refuse to enforce any or all of the provisions of a contract under s 7(1)(a) of the Contracts Review Act 1980 4. Can grant relief under Fair Trading Act 1987 and Australian Consumer Law No jurisdiction for defamation, copyright/patent, title to land in question [s 33 LCA] 2. AMOUNT CLAIMED Supreme Court – unlimited [s 23 SCA] District Court • Jurisdictional limit is $750,000 [s 4 District Court Act]; • But may be extended by 50% by consent [s 51 DCA]; Richards v Cornford Local Court [s 29 LCA] • $60,000 in relation to the Court sitting in the general division • $10,000 in relation to the court sitting in the small claims division • HOWEVER – personal injury/death in general division - $60,000 • May be extended by 20% by consent [s 31 LCA] 3. TERRITORIAL REACH Presence •

The principal basis for jurisdiction over an action in personam is the presence of the defendant in the jurisdiction: [Laurie v Carroll]

Submission 3

CIVIL PROCEDURE EXAM NOTES – JURISIDCTION

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A court will also gain jurisdiction where a defendant, though not present in the jurisdiction, voluntarily submits to the jurisdiction. o A party will be taken to have voluntarily submitted to the jurisdiction of the court if the party’s conduct is inconsistent with the maintenance of an objection to the court’s jurisdiction, for example, entering an unconditional appearance: [Perkins] o Upon submission to the jurisdiction of the court one cannot argue they’re not supposed to be there. (Submission occurs by filing a defence or an appearance). o In NSW no conditional appearances

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With respect of an action in contract the parties may also submit to a jurisdiction by express agreement in the contract that disputes be referred to a particular court: [Vogel v Kohnstamm] – e.g. ‘contract governed by the laws of NSW’. o A mere choice of law clause, however, does not amount to a submission: [Dunbee]

Statutory extension of territorial jurisdiction •

The Court may have an in personam jurisdiction over a defendant outside the jurisdiction who is validly served with the proceeding [Laurie]. o Courts will not exercise their jurisdiction unless the defendant has been validly served [UCPR 10.20]

DISTRICT COURT: Section 47 of the District Court Act: gives power to hear and dispose of a dispute if the defendant has been duly served with the process, whether in NSW in accordance with the NSW UCPR or if outside NSW pursuant to [s 24 Service and Execution of Process Act 1992]

LOCAL COURT: Section 34 of the Local Court Act: power to hear disputes in NSW so long as: o A material part of the cause of action arose in NSW and; o Even if the whole cause of action arose outside AU - the defendant was a resident in NSW at the commencement of proceedings and; o IF THE DEFENDANT IS NOT WITHIN NSW, so long as:  The whole or a material part of the cause of action arose in NSW and;  The defendant was within a State or part of the Cth (within the meaning of the s 24 Service and Execution of Process Act 1992) at the time of the service of the document which commenced proceedings.

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CIVIL PROCEDURE EXAM NOTES – JURISIDCTION SEPA For state and territory courts, service outside the state and territory but within Australia, is governed by the Service and Execution of Process Act 1992 (Cth). This is known as the long arm service provisions. Could also use UCPR 10.3 (if proceedings are in SC) (but not common) •

Section 24 SEPA gives state courts Australia-wide in personam jurisdiction. Therefore, the fact you’re initiating proceedings in a different state from that in which the defendant resides, this does not affect your ability to ‘pull’ the defendant into the NSW jurisdiction.

MORE THAN ONE COURT? • Where are filing costs and legal fees lower? •

Cost disincentives i.e. commence in Supreme Court but recover less than $750,000 – adverse cost order on indemnity basis

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CIVIL PROCEDURE EXAM NOTES – JURISIDCTION TRANSFERRING PROCEEDINGS POLICY/PURPOSE • The Plaintiff has the unfair advantage of choosing which Court should have jurisdiction to hear the matter. The law should balance this advantage with the prejudice to the Defendant (BHP Billiton Ltd v Schultz). • The Courts wish to discourage forum shopping where the Plaintiff is able to select a court to suit its purposes. Forum shopping encourages the notion that one court is preferable to another – should not encourage ability to seriously prejudice the legal rights of other party. As such, this can be balanced out by7 allowing the defendant to dispute the chosen court. • NB - hard to strike balance if parties are in different states- one will be inconvenienced. Should always apply in the court that suits you best as if you are the plaintiff as the other party may not contest [John Pfeiffer]. BETWEEN COURTS OF THE SAME STATE (a) Change of Venue Court has to consider UCPR 8.2 as to whether it should transfer a matter: 8.2 Change of Venue Generally (a) that a fair or unprejudiced trial of a question arising or likely to arise in or in connection with any proceedings cannot otherwise be had, or (b) for any other reason it is appropriate for the venue of any proceedings to be changed, the court may, subject to this Part, make an order changing the venue of the proceedings NB- Local Court Practice Note  will not transfer within 100km of each other unless exceptional reasons.

(b) Lower Court to Higher Court [s 140 CPA] – Transfer of proceedings to a higher court • Proceedings in the Local Court may be transferred to the District Court by order of the District Court acting on ‘its own motion or on application by a party to proceedings’. • Proceedings in the District Court may be transferred to the Supreme Court by order of the Supreme Court acting on ‘its own motion or on application by a party to the proceedings’ o If motor accident/workplace injury  Claim greater than $1,000,000 and  Claim involves complex legal issues or issues of general public importance o In any other person injury case – claim likely to exceed $750k 6

CIVIL PROCEDURE EXAM NOTES – JURISIDCTION

For a transfer to be granted – must be ‘sufficient cause’ • Must file a notice of motion supported by affidavit [UCPR 51.61] (c) Higher Court to Lower Court •

The Supreme Court may order that proceedings pending in that court, including any cross-claims in the proceedings, be transferred to the District Court or a Local Court if it is satisfied that the proceedings, including any such cross-claims, could have been commenced in the District Court or a Local Court, as the case may be: s 146(1).

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The District Court may order that proceedings pending in that court, including any cross-claims in the proceedings, be transferred to a Local Court if is satisfied that the proceedings, including any such cross-claims, could properly have been commenced in a Local Court: s 146(2) of the CPA.

BETWEEN COURTS INTERSTATE 1. If not between Supreme Courts of different states • If between inferior courts i.e. the plaintiff commences proceedings in VIC District Court – can use s 20 of SEPA as a defence to stay proceedings. •

Often it is not appropriate to transfer proceedings to the Supreme Court so cross vesting applies

Section 20 of SEPA criteria: (a) the places of residence of the parties and witnesses; (b) place where subject matter situated; (c) Financial circumstances of parties; (d) any agreement regarding place; (e) most appropriate law; (f) whether related proceedings exist and where they are to be heard.

2. If between Supreme Courts – Cross Vesting 7

CIVIL PROCEDURE EXAM NOTES – JURISIDCTION

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Cth and each of the states passed legislation called the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).

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The cross-vesting scheme was introduced to confer the original and appellate civil jurisdiction of each of the participating courts in or on each other participating court.

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The legislation also permitted the transfer of cases in another court within the scheme, if that court was the most appropriate court. • Essay the various Jurisdiction of Courts (Cross-Vesting) Acts 1987 allow for the conferral of the original jurisdiction of participating courts (which includes Supreme Courts) in each of the other participating courts, and also provide for the transfer of proceedings to the most appropriate court

POLICY/PURPOSE: • It was devised as a mechanism for the transferal of proceedings to the best-suited court so that proceedings would not fail due to lack of jurisdiction. Aim → to avoid more broadly the inconvenience and expense of exclusive state and federal jurisdiction. Factors relevant to choice of forum: • The place or places where the parties and/or witnesses reside or carry on business; BHP • The location of the subject matter of the dispute (BHP) • The importance of local knowledge to the resolution of the issues (BHP) • The law governing the transaction; Australian Consolidated Investments Ltd v Westpac Banking Corp • The procedures available in different courts; Trade Practices Commission v Collings Construction Co Pty Ltd • The likely hearing dates in different courts; Bourke v State Bank of NSW • Whether it is sought to transfer proceedings to specialist court eg Family Court [Lambert] • Whether one court can resolve the whole controversy without duplication of evidence and issues: Valceski v Valceski.

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Courts in scheme – Note: does not apply to inferior courts • Federal court • Family court • Supreme court

TRANSFER TO ANOTHER COUNTRY 8

CIVIL PROCEDURE EXAM NOTES – JURISIDCTION

• What would cause an Australian Court not to hear a matter (stay proceedings)? • This has effect of transfer to another Country Voth v Manildra Flour Mills Pty Ltd (1990)- leading case o 2 NSW companies began proceedings against accountant in USA o Alleged bad tax advice- said accountant had acted without due care o Appeal against decision of Supreme Court of New South Wales (NSWSC). o Respondent companies incorporated and resident in New South Wales. o Respondents did not carry on business in the United States. o Appellant accounted United States citizen and Missouri resident. o Appellant practiced in Missouri. o Respondents sued appellant for professional negligence. o Respondents served statement of claim on appellant. o Appellant sought order setting aside statement of claim or staying proceedings pending determination of issues by court in United States. o NSWSC refused to grant stay. o Stay granted when local forum clearly inappropriate forum. o Comparative appropriateness of local forum not relevant. o Alleged tort committed in Missouri. o New South Wales clearly appropriate forum. o Appeal allowed. •

Issue: When should an Australian hear a case with overseas connections?

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Held: should not hear case in Australia

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TEST applied was whether Australia was a ‘clearly inappropriate forum’ to hear the case NOT whether the USA is the ‘more appropriate forum’

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558: The "clearly inappropriate forum" test is similar to and, for that reason, is likely to yield the same result as, the "more appropriate forum" test in the majority of cases. The difference between the two tests will be of critical significance only in those cases -- probably rare -- in which it is held that an available foreign tribunal is the natural or more appropriate forum but in which it cannot be said that the local tribunal is a clearly inappropriate one.

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But the question which the ‘inappropriate’ test presents is slightly different in that it focuses on the advantages and disadvantages arising from a continuation of the proceedings in the selected forum rather than on the need to make a comparative judgment between the two forums. That is not to deny that considerations relating to the suitability of the alternative forum are relevant to the examination of the appropriateness or inappropriateness of the selected forum. The important point is that, in those cases in which the ascertainment of the natural forum is a complex and finely balanced question, the court may more readily conclude that it is not a clearly inappropriate forum.

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What did the majority think were the “connecting factors” with USA? 9

CIVIL PROCEDURE EXAM NOTES – JURISIDCTION • • • • •

The law of Missouri will apply to the tax questions and the standards expected of a Missouri Accountant The relevant acts and omissions took place in Missouri The Accountant/Defendant lives and works in Missouri Witnesses from Missouri will have to give evidence

The arguments which the NSW Company raised asking for the case to remain in Australia were explained at 571: o Plaintiffs are residents of NSW and may therefore reasonably point to the advantages to them in practical terms of bringing an action in the local courts; the transactions concerned have some connection with New South Wales and with Australian revenue laws; and, to a large extent at least, the damage was suffered in New South Wales. o However, these last considerations are natural consequences and incidents of residence in a particular jurisdiction and, as such, are merely different aspects of the right of any plaintiff to bring an action in the courts of the jurisdiction wherein he or she resides. o 3 further legitimate juridical advantages. First, it is said that an effective limitation bar exists in Missouri, through which the appellant could, if he wished, successfully resist the action. Secondly, there is evidence that, in proceedings of this kind in Missouri, the costs awarded in favour of a successful plaintiff may not include attorneys' fees. Finally, there is evidence that the rules as to the awarding of damages by way of interest are less advantageous to a plaintiff in Missouri than in the Supreme Court of New South Wales.

Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 • Issue: Where should a case involving injury in New Caledonia be heard? Expanded upon Pfeiffer case to an international or overseas tort claim •

HELD: The fact that the law to be applied was the law of New Caledonia did not of itself make it inappropriate to hear the case in Australia. The majority of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ therefore determined that the proceedings should not have been stayed in Australia.

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Appeal against decision of NSW Court of Appeal. Respondent (plaintiff) travelled to New Caledonia to seek permanent residency in Australia and was injured in car accident. Respondent became permanently disabled as result of accident. Respondent was subsequently granted permanent residency in Australia where he has continued to live. Respondent commenced negligence action in NSW Supreme Court against manufacturer of car. Appellant applied for service to be set aside on ground that NSW Supreme Court was inappropriate forum. Primary judge granted stay, but Court of Appeal allowed appeal on ground that car manufacturer had not demonstrated that NSW was inappropriate forum. Whether NSW Supreme Court was inappropriate forum in which to try respondent's action against car...