Recent judicial aberrations in Australian private international law.

AuthorHarder, Sirko

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. (15) It has nonetheless been recognised that the power to grant anti-suit injunctions raises concerns with regard to comity and must therefore be exercised with caution. (16)

This article does not seek to add to the existing literature on the merits of anti-suit injunctions in general. (17) What will be discussed is the grant of such an injunction with regard to foreign criminal proceedings in Singh v Singh. (18) Even though the court exercised a power granted by statute, the decision has significance for anti-suit injunctions in general since the court regarded its decision as being in line with common law principles.

Mr and Ms Singh were married in 2002 in India according to Sikh rites. Both of them were Australian citizens and lived in Australia. They had one child, born in 2006. They subsequently separated and applied for Federal Magistrates Court consent orders on child custody and the parties' property. Mr Singh sought an order restraining Ms Singh from taking any action, or causing or allowing or assisting any other person to do so, under the Down, Prohibition Act 1961 (India), which makes the requesting, giving or receiving of a dowry an offence on the part of the relevant (future) spouse or that spouse's relatives. (19) Mr Singh also sought a 'notation' that, contrary to Ms Singh's allegation, no dowry had been paid, received, requested or demanded by him or his family. An expert witness on Indian law testified that there was no time limit for proceedings under the Down? Prohibition Ad 1961 and that in an Indian court the testimony of the bride and her parents in relation to a dowry at the time of the marriage was complete evidence, requiring the husband to adduce evidence in defence. (20)

Neville FM granted the injunction sought by Mr Singh. He set out the common law principles on anti-suit injunctions, (21) and explained his decision to grant an injunction pursuant to s 114(1)(a) of the Family Law Act 1975 (Cth) in this way: (22)

In my view, an injunction should be granted as sought by Mr Singh under s 114(1)(a), which section refers to 'the personal protection of a party to the marriage'. From what has been stated, there is sufficient evidence before the court to be concerned that Mr Singh faces a risk of imprisonment if ever criminal proceedings are instituted in India. The fact that there is no time limit in which such proceedings may be instituted, and that there is a complete absence of clarity from Ms Singh in relation to her intentions in relation to such proceedings, and that no such proceedings have been commenced, only adds to the need, in my view, to afford some personal protection to Mr Singh. The grant of the injunction is problematic with regard to both the assumption of discretion to grant such an injunction and the exercise of that discretion. Considering the latter issue first, it is unclear why the injunction was necessary. Neville FM made no finding in respect of Ms Singh's allegation that she had not even contemplated instigating criminal proceedings in India before Mr Singh applied for the injunction. (23) An expert witness on Indian law testified that the Indian courts would not entertain criminal proceedings against Mr Singh if the Australian court made a declaration that no dowry had been paid or demanded. (24) This requirement may have been satisfied by Neville FM's 'notation' that Ms Singh failed to establish that a dowry had been paid, received, demanded or requested by Mr Singh or his family. (25) Furthermore, the injunction afforded Mr Singh no real protection. Neville FM pointed out that the injunction restrained only Ms Singh, leaving her relatives free to raise the dowry issue with authorities in India. (26) Equity does not normally act in vain. (27)

More importantly, an injunction to restrain a party from participating in foreign criminal proceedings raises concerns with regard to the principle of territorial sovereignty under customary international law. (28) This principle would be infringed by an injunction that purports to restrain foreign authorities from commencing or continuing criminal proceedings in their own country. (29) The principle may also be infringed by an injunction that restrains a person from appearing as a witness in foreign criminal (or indeed civil) proceedings where the person lives in the foreign country and is obliged to appear under the foreign law. (30)

On the other side of the spectrum is an injunction that merely restrains a person from raising or pursuing a civil claim within foreign criminal proceedings, (31) which is possible under the procedural law of some countries. (32) Such an injunction is not significantly different to an injunction that restrains a person from commencing or continuing foreign civil proceedings proper. More difficult is an injunction that restrains a person from acting as an 'accessory prosecutor' in foreign criminal proceedings initiated by the authorities in that jurisdiction. Some legal systems allow the alleged victim of the crime to join the public prosecutor and independently exercise certain rights of the prosecution, such as presenting evidence or appealing a decision. (33) Since such an 'accessory prosecutor' assumes a public, rather than private, function, an injunction restraining a person from acting as an 'accessory prosecutor' is inappropriate.

That leaves the situation where the foreign law provides that criminal proceedings cannot take place unless the alleged victim initiates those proceedings or formally requests the public prosecutor to do so. Is an injunction restraining the alleged victim from taking either course appropriate? That depends upon whether the alleged victim's act of initiating criminal proceedings or requesting the public prosecutor to do so is considered more akin to the commencement of a civil action or to acting as an 'accessory prosecutor'. On the one hand, the decision on whether to initiate criminal proceedings in those...

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