I. INTRODUCTION
2.1 As a general rule of common law, the Supreme Court of-New South Wales does not have jurisdiction to entertain an action for the determination of the title to, or the right to possession of, land (including buildings etc on the land) outside the State, whether that land is in another part of Australia or overseas. In addition, the court has no jurisdiction to hear an action for damages for trespass to land outside the State, and quite possibly lacks the power to adjudicate on a claim for damages for other torts affecting land outside the State, such as nuisance or negligence. This principle is generally known as “the Mozambique rule”, from the judgment of the House of Lords in the case in which it was established, British South Africa Co v Companhia de Mozambique.1 As will be explained below,2 this rule is subject to a number of ill-defined exceptions in those cases in which:
(a) there is a contract or equity between the litigants;
(b) the matter concerns the administration of a deceased’s estate; or
(c) the action is brought in the Supreme Court’s Admiralty jurisdiction.
A further limitation on the rule is that, on the commencement of the Jurisdiction of Courts (Cross-Vesting) Act 1987, the Supreme Court will have jurisdiction to hear and determine any matter relating to title etc to land within other parts of Australia (including the external Territories).3
2.2 Despite the comparatively limited nature of this rule of non-.jurisdiction, its existence has led to decisions which may be regarded as anomalous, arbitrary and unsatisfactory. One such decision is that of McLelland J in Corvisy v Corvis,4 in which interim injunctions were sought by the plaintiffs, restraining the defendant from entering or remaining in the first plaintiff’s home in Wollongong or the second plaintiff’s home in Canberra. The judge held that, although he had jurisdiction, by virtue of s66(l) of the Supreme Court Act 1970, to grant the injunction in relation to the Wollongong property, he was precluded, by the Mozambique rule, from taking jurisdiction in respect of the Canberra property. It was considered that the proceedings were founded upon title to, or the right to possession of, property outside the State. Another example of the difficulties created by the Mozambique rule occurs in the decision of Woodward J, in the ACT Supreme Court, in Inglis v Commonwealth Trading Bank of Australia. 5 The plaintiffs, who had mortgaged land in Tasmania to the defendant Bank, sought a declaration that the power of sale in the mortgage could no longer be exercised by the defendant, and that its right to enforce payment against the plaintiffs personally had become statute-barred. The judge held6 that the claim was one directly affecting title to land, and thus not justiciable by the ACT Supreme Court. However, he also observed7 that it seemed anomalous that the defendant Bank could have sued the plaintiffs, in the ACT Supreme Court, for foreclosure or for the recovery of money under the mortgage (such actions not being within the Mozambique rule), to which the plaintiffs could have raised, b y way of defence, the matters on which they sought to rely in the action before Woodward J.
2.3 If facts similar to those in the above two cases were to come before the Supreme Court of New South Wales after the coming into force of the cross-vesting legislation,8 the Court would not be limited by the Mozambique rule, In Corvisy v Corvisy, for example., the Supreme Court of the. ACT was the ,only court which would have had jurisdiction to grant the injunction sought in relation to the Canberra house. The cross-vesting legislation will vest that jurisdiction in the Supreme Court of’ this State. But the cross-vesting legislation provides no answer to cases in which the facts transcend national rather than state boundaries. If the Mozambique rule is to be abrogated with regard to actions relating to land elsewhere in Australia by the cross-vesting legislation, perhaps consideration should be given to its abrogation so far as concerns suits relating to land outside Australia. The fact that there have been very few decisions in this country in which the Mozambique rule has been applied to such suits may indicate no more than that persons who have considered commencing such suits have been advised against doing so. There may also be some doubt as to the constitutional validity of the cross-vesting legislation. Although both this State and the Commonwealth Parliaments have considered it proper to abrogate the rule in part, by the passage of the cross-vesting legislation, that Act may be found by the High Court to be invalid, thus frustrating the purpose of the two Legislatures. Both the rule and its exceptions are ill defined. Reform will impart a greater degree of certainty to this area of’ the law than exists at present.
2.4 This Report proposes abolition of the Mozambique rule, and the granting to the Supreme Court of jurisdiction to determine matters relating to or involving land outside the State or the right to possession thereto and to grant damages for any wrong done to such land. As will be mentioned (see paras 7.5 et seq) , such an extension of the Court Is power would be subject to its obligation to determine whether New South Wales is the appropriate forum for the resolution of the dispute between the parties.
II. EXCLUSION FROM JURISDICTION
2.5 The rule established by the Mozambique case is one of a set of principles of private international law that operate to exclude a court from exercising jurisdiction in an action, even though the court has otherwise acquired jurisdiction over the defendant. Four of these rules are mandatory, and one is discretionary. A brief outline of these rules provides a context for consideration of the Mozambique principle.
A. Forum Non Conveniens
2.6 The doctrine of forum non conveniens was developed in Scotland and the United States and is a discretionary principle. It requires that the court “find that forum which is more suitable for the ends of justice, and is preferable because pursuit of the litigation in that forum is more likely to secure those ends”.9 While the Scottish doctrine has now been expressly adopted in England, that result has come about only through a series of’ decisions of the House of Lords, commencing in 1974. The state of the law in New South Wales cannot be stated with certainty at present, as the opportunity has not arisen for a full consideration by the courts of the most recent decision of the House of Lords. However, the High Court has heard an appeal from a decision of the New South Wales Court of Appeal10 which raises the issue of forum non conveniens. it is to be hoped that when it delivers judgment on that matter, the High Court will take the opportunity of formulating the relevant principles for all Australian courts. In view of the fact that, to date, judges both of the Supreme Court and the Court of Appeal in this State have adopted the position taken in England as it has developed, the following review of English authority is premised on the assumption that the law in New South Wales is substantially the same as in England.11
2.7 Prior to 1974, the position in England was that, if the court there had jurisdiction as of right by reason of the physical presence of the defendant within the jurisdiction at the time of service of the writ - an action would be stayed only if it were oppressive and vexatious.12 If it were not such, the court was prepared to exercise its jurisdiction despite the lack of any connection between the parties or the dispute and England.13 In 1974, a bare majority of’ the House of Lords , in The Atlantic Star, 14 was prepared to give to the notion of “oppressive and vexatious” a more liberal interpretation than it had previously received. This decision was followed (with varying degrees of enthusiasm) by a unanimous House of Lords in Rockware Glass Ltd v MacShannon,15 in which Lord Diplock16 propounded a revised formulation of the circumstances in which English courts might decline to exercise a jurisdiction which they had as of right, a formulation which was accepted as correct by all the members of the House of Lords in The Abidin Daver.17
2.8 At much the same time as the decision in The Abidin Daver, the House of Lords also reconsidered, in Amin Rasheed Shipping Corp v Kuwait Insurance Co,18 the grounds on which the English court might decline to exercise its extended jurisdiction under the equivalent in that country of Pt 10, rl, of the Rules of the Supreme Court of New South Wales The House took the view that the decision whether to exercise jurisdiction rested on essentially the same grounds, whether that jurisdiction had arisen as of right or by virtue of the Rules of Court. This development has now culminated in the House of Lords’ decision in Spiliada Maritime Corp v Cansulex Ltd,19 in which the tests for the exercise of (or refusal to exercise) jurisdiction have been refined and reformulated. These tests depart to some extent from the principles stated by Lord Diplock in Rockware Glass Ltd v MacShannon and rely explicitly on earlier Scottish authority since the law in Scotland and England has now been stated to be in all respects identical
2.9 The principles stated by Lord Diplock in Rockware Glass Ltd v MacShannon had been adopted in New South Wales prior to their acceptance in The Abidin Daver. In A v B20 Powell J summarised those principles as follows:
(1) A mere balance of convenience is not a sufficient ground for depriving a plaintiff of the advantages of prosecuting his action in (a New South Wales Court) if it is otherwise properly brought. (2) In order to justify a stay, two conditions must be satisfied, one positive, and the other negative: (a) the defendant must satisfy the court that there is another forum to whose jurisdiction he is amenable in which justice can be done between the parties at substantially less inconvenience or expense, and (b) the stay must not deprive the plaintiff of a legitimate personal or juridical advantage which would be available to him if he invoked the jurisdiction of (the New South Wales Court).21
Yeldham J also accepted the rule as stated in McShannon’s case and applied it in Garseabo Nominei v Taub P v Ltd,22 although he declined to detail the rule further than to quote passages from the judgments of members of the House of Lords in the case.
2.10 More recently, in Evers v Firth,23 Samuels JA (with whom Priestley JA concurred) had no doubt that the law as stated in The Abidin Daver is applicable in New South Wales. His Honour considered24 that the reasons which had led the House of Lords to its decision in that case would be adopted by Australian courts.
2.11 The cases referred to in the preceding two paragraphs were concerned with the exercise of (or refusal to exercise) a jurisdiction which the court has as of right, by virtue of the presence of the defendant in the State at the time of service of the writ. Doubt still remains whether the same or similar principles apply when the jurisdiction of the court is based on Pt 10, r 1, of the Rules of the Supreme Court. It is to be hoped that such doubts will be resolved when the High Court delivers judgment in Fay v Oceanic Sunline Special Shippinng Co Inc, the case which has gone on appeal from the Court of Appeal in New South Wales.25 (See now para 1.8)
B. Actions by Enemy Aliens
2.12 A court will ref use jurisdiction in any action brought by an alien enemy unless the Crown gives leave to proceed.26 The aim of’ this doctrine is to mount an economic blockade of the enemy, and it will only apply when economic interests are involved.27 The rule will not prohibit actions against alien enemies, and only suspends a right of action for the duration of hostilities.28
C. Sovereign Immunity and Acts of State
2.13 These final two doctrines are closely related. Sovereign immunity attaches to foreign heads of state and foreign governments once it was possible to plead absolute immunity regardless of the nature of the act involved.29 Now, however, the common law has been codified in the Foreign States Immunity Act 1985 (Cth), and immunity is generally available only in respect of actions of the foreign state that have been undertaken in the course of its government activities, and not for instance, as part of a commercial transaction.30 The doctrine and defence of “act of state” is built on the principle that
Municipal Courts do not take it upon themselves to review the dealings of State with State or of Sovereign with Sovereign. They do not control the acts of a foreign State done within its own Territory, in the execution of sovereign power, so as to criticise their legality or to require their justification.30
It can be pleaded by persons not entitled to sovereign immunity. There are some restrictions on the doctrine however, as Nygh points out:
It cannot be pleaded in respect of any act done on British soil (including a British colony) whether against a British subject or an alien: Johnstone v Pedlar [1921] 2 AC 262. It can be pleaded of an act done by or on behalf of British authorities to an alien abroad: Buron v Denman, or by or on behalf of a foreign sovereign on his own territory whether against his own or foreign (including British) nationals: Carr v Fracis Times & Co [1902] AC 176 . It is not certain whether it can be pleaded in respect of an act done by or under the instructions of British authorities against a British subject on foreign soil: Nissan v Attorney-General [1970] AC 179.32
III. HISTORICAL DEVELOPMENT
2.14 The decision of the House of Lords in British South Africa Co v Companhia de Mozambique33 was based exclusively on the historical development of the circumstances in which, and reasons for which, a court in England would take jurisdiction to hear any matter. It is therefore necessary to pay some regard to that history.
2.15 In the very earliest times during which the law was developing in England-during the 12th century and the early years of the 13th century the jury, both in civil and criminal matters, performed a role more as witnesses than as judges of fact. They were drawn from the locality -the particular village, or the hundred of a shire in which the cause of action had arisen, because they were assumed to be acquainted with the facts in issue from their personal knowledge.34 For this reason, the parties to an action were obliged to specify with the greatest particularity the venue or place at which the event alleged had occurred, so that the sheriff might summon the jury from the place35 A law of Henry I (1100-1135), for instance, declared that juries from other than the venue stated were not to be permitted in any circumstances.36
2.16 However, as early as the end of the 13th century or the beginning of the 14th, with a measure of increasing sophistication in transactions and dispositions, this rule caused considerable inconvenience, especially when the facts alleged occurred partly in one locality and partly in another37 It was this inconvenience which led the courts to draw a distinction between “local” and “transitory” actions. A local action was one in which the facts relied on the plaintiff had a necessary connection with a particular place (such as an action for ejectment from land, or a bill for the partition of property), whereas a transitory action (such as for breach of contract or for trespass to the person) had no such necessary connection. In the case of a transitory action, the plaintiff might, at this early stage of the development of the law, lay the venue in any county he pleased. This right was, however, abused, and by the early years of the 15th century statutes of Richard II and Henry IV reimposed strict requirements of laying the correct venue. The effect of these statutes was, in turn, diminished by the development of a legal fiction, as the courts realised the advantages of taking jurisdiction over mercantile matters which might have arisen outside England. By the end of the 18th century, it could be said that notions of venue, with regard to transitory actions, remained only as a limitation on the verbal formula by which the plaintiff might frame a cause of action.38
2.17 But with regard to local actions, the requirement on the plaintiff of laying the venue truly remained a pre-eminent aspect of the pleading. Despite the fact that, by the 16th century at least, the role of the jury was that of the trier of fact, and the practice of relying on the sworn testimony of witnesses had become general,39 if the matter had a necessary connection with a particular place, that locality was the venue of the action. The jury was still to be drawn from the county (although not necessarily from the precise locality) in which the venue was laid. If the matter had arisen outside England, the fictions employed with regard to transitory actions were not regarded as applicable, no jury could be summoned to try the facts in issue, and hence the matter could not be heard. Thus, in Skinner v East India Co40 which came before the House of Lords in 1666, the Judges who were summoned to advise the House stated41 that the matters complained of by the petitioner “touching the taking away of the petitioner’s ship and goods, and assaulting of his person, notwithstanding the same were done beyond the seas, might be determined upon his majesty’s ordinary courts at Westminster”, since they were regarded as transitory in nature. But, “as to the dispossessing [the petitioner] of his house and island, ...he was not relievable in any ordinary court of law”, by reason of the facts being local in nature, and occurring outside England. Similarly, in Pike v Hoare,42 decided almost a century later, the reporter’s note puts the matter bluntly43 that “Courts of law have no jurisdiction in local actions respecting lands lying in Ireland, the Isle of Man, the colonies etc”, Although Lord Mansfield did not accept this rule as applying absolutely and without qualification,44 his views were not accepted by his brother judges. In Dulson v Matthews,45 the opinions expressed by Lord Mansfield we relied on in argument, but were unequivocally rejected by the Court of King’s Bench, comprising Lord Kenyon CJ and Buller J.
2.18 On the passing of the Judicature Act 1873 (Eng), r28 of the Rules of Court scheduled thereto abolished the need for a local venue to be laid. The suggestion was therefore advanced by the editor of Smith’s Leading Cases,46 Collins, subsequently a Master of the Rolls and Lord of Appeal, that this legislative change might remove the disability of the English courts in relation to local actions, especially where the parties were domiciled in England and in the Court of’ Appeal in the Mozambique case,47 majority (Fry and Lopes LJJ, Lord Esher MR dissenting) took a similar view of the effects of that Act. Thus Fry LJ, relying principally on the statements of Lord Mansfield in Mostyn v Fabrigas48, considered49 that the issue of jurisdiction in actions relating to land outside England could be resolved into two parts. First, if: the matter were one requiring adjudication as to title, the court could not take jurisdiction, since it would have no power, to ensure the execution of its order. But where, on the other hand, the issue. related to no more than trespass to foreign land, and judgment might be given by way of an award of damages against the defendant, the only bar, in his Lordship’s view , to the exercise by the English court of jurisdiction was the technical one that the action was a local one for which, prior to the Judicature Act, a local venue was required to be laid. He therefore concluded50 that, with the abolition of local. venues by that Act , and the consequent abolition of that fetter, there was nothing to prevent the Court from taking jurisdiction.
2.19 However, when the Mozambique case was taken on appeal to the House of Lords,51 Lord Herschell LC, delivering the leading opinion, observed52 that lawyers of a previous age had been able to expand the jurisdiction of the court, with regard to transitory actions, by the invention of a fiction. This led him to doubt that, with regard to local matters involving no more than a claim f-or damages, “the Courts would have failed to find a remedy if they had regarded the matter as one within their jurisdiction, and which it was proper for them to adjudicate upon.” After a consideration of earlier, decisions both in England and in the United States , he stated that:
the grounds upon which the courts have hitherto refused to exercise jurisdiction in actions of trespass to lands situate abroad were substantial and not technical, and that the rules of procedure under the Judicature Acts have not conferred a jurisdiction which did not exist before.53
The claim, originally made by the respondents to the appeal, for damages for trespass to land in southern Africa was consequently dismissed.
IV. THE POSITION IN AUSTRALIA
2.20 The decision in the Mozambique case has been accepted by the High Court, in Commonwealth v Woodhill, 54 as part of the common law in this country. That court has also, in Potter v Broken Hill Pty Co Ltd,55 extended the rule by analogy to foreign patents, although the effect of the decision in Potter’s case has been rendered virtually obsolete by the Patents Act 1952 (Cth) and the international conventions relating to foreign patents to which Australia is a party.
2.21 It would appear that the decision in Woodhill’s case has clarified, for Australia, a matter, which was in some doubt in England prior to the statutory amendments made there in 1982. The opinion had been expressed, both by judges and academic writers56 in England, that the Mozambique rule precluded the court from adjudicating on actions not only for, trespass to foreign land , but also for other torts, such as nuisance , negligence and the rule in Ryland’s v Fletcher57 It is a reasonable inference from Woodhill’s case that a court in Australia does not have jurisdiction to hear any matter which is necessarily connected with a particular locality beyond its State or Territorial boundaries.
2.22 The respondent in Woodhill’s case had owned land, in the neighbourhood of Huskisson, NSW, which had been compulsorily acquired by the Commonwealth, on 1 May 1915, under the Lands Acquisition Act 1906 (Cth). The land became part of the Jervis Bay Territory on 4 September 1915. By a writ issued out of the Supreme Court of New South Wales on 7 March 1917, the respondent sought compensation for that resumption.58 The Lands Acquisition Act provided, in s37, for such an action to be instituted in the High Court or in “any State Court of competent jurisdiction”. It was held on appeal that the Supreme Court of New South Wales did not come within this term. Although much of the reasoning of the members of the Court was based on the words of the Commonwealth Act, Barton J observed59 that the matter involved in the respondent’s action “is in substance the failure [on the part of the Commonwealth] to give a sufficient price for the land”. Relying, inter alia, on the Mozambique case, he continued by saying that the action “was therefore a local matter arising outside the State of New South Wales, in which the courts of that State are without jurisdiction ”. Similarly, Issacs J (with whom Rich J concurred) included60 as one of the matters that led to his conclusions adverse to the respondent the fact that the latter’s claim was not transitory but local.
2.23 If it is correct to draw the inference from Woodhill’s case that the courts in this country cannot take jurisdiction whenever the matter is local., and arises outside the State or, Territory concerned, it would mean that the Supreme Court of New South Wales would be unable to adjudicate on an action in negligence or nuisance, or one under the rule in Rylands vFletcher, if the action related to land in another State or Territory. This view derives from the expressions of opinion by Boyd CJ in the Supreme Court of Ontario in Brereton vCanadian Pacific Railway Co.61 The plaintiff had commenced proceedings in Ontario to recover damages for the loss of his home, which had been destroyed in a fire allegedly caused by the defendant’s negligence. The plaintiff’s house was situated in Manitoba. The Ontario court refused to take jurisdiction, the Chancellor saying62 that once “it is found that trespass on the case for injury to land through negligence is of the same local character as trespass to the land, the controversy is covered by the Mozambique case”. This decision was followed by the Court of Appeal in Manitoba, in Winnipeg Oil Co v Canadian Northern Railway Co,63 and conclusions to the same effect have been arrived at by McDonald J in the Supreme Court of British Columbia in Boslund v Abbotsford Lumber Mining & Development Co Ltd64 and by a majority of the Appellate Division of the New Brunswick Supreme Court in Albert v Fraser Co Ltd65 In both these cases the respective courts refused to take jurisdiction in actions for damage caused by negligence to land outside the Province. It may also be observed that, in Corvisy v Covisy,66 the jurisdictional. question of wether the Supreme Court of New South Wa1es “has power to restrain apprehended trespass or nuisance in relation to real. property in the Australian Capital Territory”, 67 although his statement of the principle to be derived from the House of Lords decisions was confined to proceedings “founded upon the title to or, possession of real property” outside the State.
2.24 A rule which denies jurisdiction even in the case of negligent damage to immovable property outside the State may have unfortunate consequences for the person seeking recompense, This may be illustrated by two examples, one hypothetical but the other an extrapolation from a litigated dispute.
2.25 The latter concerns a fire which allegedly commenced at an electricity substation in the ACT in February 1979, but which spread to nearly a hundred properties both in the Territory and in New South Wales. The landowners commenced proceedings against the ACT Electricity Authority, some in the Supreme Court of New South Wales, some in the District Courts at Queanbeyan and Goulburn, and the remainder in the Territory Supreme Court. In Hall v ACT Electricity Authority,68 Master Sharpe held that the plaintiff’s statement of claim, issued out of the Supreme Court of New South Wales, be stayed, the principal. reason being that the defendant was “the Commonwealth” within the meaning of s56(l)(b) of the Judiciary Act 190 3 (Cth), and that the claim had not arisen within New South Wales. The landowners then commenced fresh proceedings in the ACT Supreme Court. The Electricity Authority has so far settled many of the claims, and has not taken the point of the possible applicability of the Mozambique rule to deny jurisdiction to the Territory Supreme Court.69 If the Authority were to take the point, and the ACT Supreme Court to follow the arguments advanced in para 2.21 above, those plaintiffs whose claims have not been settled would be left without a remedy.70
2.26 A hypothetical example may also serve to illustrate the difficulties which would arise if the courts in this country expressly adopt the interpretation of the Mozambique rule apparently to be derived from the decision of the High Court in Commonwealth v Woodhill. Suppose that P, a resident of New South Wales, owns a house in New Zealand, which he lets for a month to D, also a resident of New South Wales, and that, while in occupation of the house, D negligently causes damage to the house. On D’s return to New South Wales, P would not be able to bring an action in the Supreme Court of this State, on the above view of the Mozambique rule (although, as will be mentioned below at para 4.3, if D’s default were a breach of the terms of the tenancy, P’s cause of action would apparently fall within one of the exceptions to the Mozambique rule).71 Furthermore, P would be denied any effective remedy against D, even if the former were to commerce proceedings in the New Zealand High Court. That court would have the power to entertain the matter, despite the fact that D was no longer, present in that country, by virtue of r48(a) of its Code of Civil Procedure 72 But if D did not appear, and took no part, in the New Zealand proceedings, the default judgment which (it may be assumed) would be made in P’s favour could not be enforced against D in New South Wales, since the Supreme Court of this State would not regard the New Zealand High Court as having had sufficient jurisdiction over D.73 It may be observed that if P’s house were in another, State or Territory of Australia, a judgment given in P’s favour in that other jurisdiction could be enforced in New South Wales by virtue of Part IV of the Service and Execution of Process Act 1901 (Cth).
FOOTNOTES
1. [1893] AC 602
2. See Chapter 4.
3. See paras 7.2-7.4.
4. [1982] 2 NSWLR 557.
5. (1972) 20 FLR 30.
6. Id at 41.
7. Id at 42.
8. See paras 7.2-7.4.
9. Society Du Gaz de Paris v Armateurs Francais SC (HL) 13 at 22, per Lord Summer.
10. Oceanic Sunline Special Shipping Co Inc v Fay (1987) 8 NSWLR 242.
11. This is how the law stood at the time this report was prepared. The High Court has since overturned the decision in Oceanic Sunline Special Shipping Co Inc v Fay (1987) 8 NSWLR 242 in so far as it relates to forum non conveniens. In Oceanic Sunline Special Shipping Co Inc v Fay (1988) 165 CLR 197; 79 ALR 9 the High Court by majority returned Australian law the “pre-1974” position, citing as authority Maritime Insurance Co Ltd v Geelong Harbour Trust Commissioners (1908) 6 CLR 194 and St Pierre v South American Stores (Garth &Chaves) Ltd [1936] 1 KB 382.See now parra 1.8 above.
12. St Pierre v South America Stores (Garth &Chaves Ltd [1936] KB 382
13. See for example Colt Industries Inc v Sarlie (No 2) [1966] 1 WLR 440; Mahranee of Baroda v Wildestine [1972] 2 QB 283.
14. [1974] AC 436
15. [1978] AC 795
16. Id at 811-812.
17. [1984] AC 398.
18. [1984] AC 50
19. [1987] AC 460
20. [1979] 1 NSWLR 57.
21. Id at 61.
22.[1979] 1 NSWLR 663 at 670.
23. (1986) 10 NSWLR 22.
24. Id at 25
25. This appeal was considered in the Oceanic Sunline Special Shipping Co Inc v Fay (1988) 165 CLR 179; 79 ALR 9; See footnote 11.
26. Porter v Freudenberg [1915] 1 KB 857.
27. Maseman v Maseman [1917] NZLR 769.
28. Porter v Freudenberg 1 KB 857.
29. The Porto Alexandre [1920] P 30.
30. For discussion of the terms of the 1985 Act, see Edward I Sykes and Michael C Pryles, Australian Private International Law (2nd ed, 1987) at 62-8.
31. Johnstone v Pedlar [1921] 2 AC 262 at 290 per Lord Summer.
32. P E Nygh, Conflict of Law of Australia(4th ed, 1984) 72.
33. [1893] AC 602
34. W Holdsworth, A History of English Law Vol 1 (7th ed, 1956) 332-4
35. Holdsworth, op cit, Vol 5 (2nd ed, 1937), 117; Smith’s Leading Cases Vol 1 (7th ed, 1876) 688-9
36. The Law is quoted in Smith’s Leading Cases, note 34, as providing that “Peregrina judicia modis omnibus submovemus.”
37. Reeve’s History of the English Law, Vol 2 (rev ed, Finlayson, 1869) 409-12, refers to a large number of causes, of ten conflicting, which attempted to settle the venue in such circumstances
38. See for example the discussion by Lord Mansfield, in Mostyn v Fabrigas (1774) 1 Cowp 161 at 176- 181; 98 ER 1021 at 1029-1032.
39. Holdsworth, note 34, Vol 1, at 334.
40.6 St Tr 710.
41. Id at 719.
42. (1763) 2 Eden 182; 28 ER 876.
43. Id at 185, 686.
44. See the cases referred to by him Mostyn v Fabrigas (1774) 1 Cowp 161 at 176; 98 ER 1021 at 1029.
45. (1792) 4 TR 503; 100 ER 1143.
46. (7th ed, 1876) 698.
47. [1892] 2 QB 358.
48. (1774) 1 Cowp 161 at 176; 98 ER 1021 at 1029.
49. [1892] 2 QB 358 at 408-9.
50. Id at 414; see also Lopes LJ at 417.
51. [1893] AC 602.
52. Id at 619.
53. Ibid.
54. (1917) 23 CLR 482.
55. (1906) 3 CLR 479.
56. The Tolten [1946] P 135 at 141-142 per Scott LJ; Tito v Waddle (No2) [1977] Ch 106 at 271 per Megarry J; Dicey and Morris on the Conflict of Laws (11th ed, 1987) Vol 2, 927, n56; Cheshire and North’s Private International Law (10th ed, 1979) 493.
57. (1868) LR 3 HL 330 (such actions are now justiciable in England, by virtue of Civil Jurisdiction and Judgements Act 1982 (UK) discussed below parra 3.3).
58. Although Isaacs and Rich JJ regarded the date of the issue of the writ as relevant (see 23 CLR at 489) BartonJ said (at 486) that the respondent’s cause of action had arisen on 5 May 1916, when he refused an offer of compensation made by the Minister for Home Affairs
59. (1917) 23 CLR 482 at 487.
60. Id at 494.
61. (1898) 29 OR 57).
62. Id at 62.
63. (1911) 21 Man R 274 at 248 per Richards JA, at 296 per Perdue JA (Howell concurred on this issue, at 284).
64. [1925] 1 DLR 978 at 981.
65. [1937] 1 DLR 39 at 45 per Baxter CJ, with whom Grimmer J concurred; Harrison J dissented, although the only Canadian decision to which he referred was Boslund’s case (at 55).
66. [1982] 2 NSWLR 557; see above, para 2.2
67. Id at 558, emphasis supplied.
68. [1980] 2 NSWLR 26.
69. This information has been provided by P L R Shields, QC, counsel for various landowners.
70. Although s56(1)(a) of the Judiciary Act 1903 (Cth) would have permitted the plaintiffs to commence an action in the original jurisdiction of the High Court, and in such an action Land in New South Wales is not “foreign” for the purpose of the Mozambique rule, such an action would now be statute-barred: see the Statute of Limitations 1623(21 JacI,c 16), s3 and the Limitations Ordinance 1985 (ACT) s3, both of which are applicable to the proceedings commenced in the High Court, by virtue of s79 of the Judiciary Act 1093 (Cth) .
71. See St Pierre v South American Stores (Gath and Chaves) Ltd [1936] 1 KB 382 (action to recover rent due under a lease of foreign land justiciable) and the comment of Woodward J in Inglis v Commonwealth Trading Bank of Australia (1972) 20 FLR 30 at 41, that is no bar to jurisdiction if the plaintiff’s claim involves the enforcement of a contract.
72. See generally Nygh, note 32 at 35-37.
73. Foreign Judgements (Reciprocal Enforcement) Act 1973 (NSW), ss8 (1) (a) (ii) and 8(2) (a), on which see Nygh, note 32 at 108-110.
